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Writ Petition (Civil) No. 1135/2020 dated 16-10-2020. These matters were called on for hearing today. For Petitioners: Mr. Vikas Singh, Senior Advocate; Mr. Nikhil Jain, Advocate on Record; Mr. Meenesh Kumar Dubey, Advocate; Ms. Deepika Kalia, Advocate; Mr. Satya Prakash, Advocate. For Respondents: Mr. Tushar Mehta, Solicitor General; Ms. Aishwarya Bhati, Additional Solicitor General; Mr. Gurmeet Singh Makker, Advocate on Record; Ms. Suhashini Sen, Advocate; Mr. Navjayan Mahapatra, Advocate; Ms. Archana Pathak Dave, Advocate; Mr. Atul Nanda, Advocate General, Punjab; Ms. Uttara Babar, Advocate on Record; Ms. Bhavana Duhoon, Advocate; Mr. Manan Bansal, Advocate; Mr. Anil Grover, Additional Advocate General; Ms. Noopur Singhal, Advocate; Mr. Rahul Khurana, Advocate; Mr. Satish Kumar, Advocate; Mr. Sanjay Kumar Visen, Advocate; Mr. Chirag M. Shroff, Advocate., Upon hearing the counsel, the Supreme Court of India made the following order: Learned counsel for the petitioners is permitted to implead the State of Uttar Pradesh as a party. Learned standing counsel for the State of Uttar Pradesh shall be served with a copy of the petition. Mr. Vikas Singh, Senior Advocate appearing for the petitioners, pointed out that there is a grave concern about the quality of air in the National Capital Region and that the quality is dropping rapidly. This is due to several factors, including the practice of stubble burning in the neighbouring states of Punjab, Haryana and Western Uttar Pradesh and certain activities in the National Capital Region of Delhi. Mr. P. S. Narsimha, Senior Advocate appearing for the State of Punjab, and Mr. Anil Grover, Additional Advocate General appearing for the State of Haryana, have pointed out that several steps have been taken by the states for stopping stubble burning in the fields of Punjab and Haryana, including the development of an application which can help in identification and notification of the particular field in which someone has burnt stubble. Mr. Vikas Singh, Senior Advocate, points out that in spite of many measures which are said to have been taken, there is a reported increase in the amount of stubble burning and that is increasing the pollution in the National Capital Region of Delhi. At this stage, we are not inclined to make an assessment as to the effectiveness of the measures taken by the respective states. We are confident that each measure has been taken by the authorities with the intention of alleviating the problem of pollution. Nonetheless, it is necessary that there must be some monitoring of stubble burning with a view to its prevention before it assumes abnormal proportions., Accordingly, we find that the suggestion of Mr. Vikas Singh that a former Judge of this Court who is aware of the problem be appointed to monitor the situation in the states of Punjab, Haryana, Uttar Pradesh and the National Capital Region of Delhi is acceptable. We, accordingly, accept the suggestion and appoint Honourable Mr. Justice Madan Lokur, former Judge of the Supreme Court of India, to act as the one‑man Monitoring Committee to monitor the measures taken by the states to prevent stubble burning. For this purpose, we consider it appropriate to direct that the Chief Secretaries of the states of Punjab, Haryana and Uttar Pradesh and the National Capital Region of Delhi shall assist Justice Madan Lokur and enable physical surveillance of fields where stubble is likely to be burnt and devise additional means and methods for preventing the burning of stubble., We find that it would be fitting, if the services of the National Cadet Corps, National Service Scheme and Bharat Scouts and Guides, wherever available, are deployed for assisting in the monitoring of stubble burning in the agricultural fields in these states. The authorities in charge of these forces shall enlist their services to the extent possible to assist the one‑man Justice Lokur Committee for this purpose. In addition, the teams already in existence in the states, which are meant for the purpose of preventing stubble burning, shall report to and take instructions from Justice Lokur Committee. The states of Punjab, Haryana and Uttar Pradesh shall provide adequate facilities to the Committee for carrying out its job, including secretarial assistance, transportation and security, if necessary. If found necessary by the Committee, the states shall provide adequate transportation to those whose services are enlisted by the Justice Lokur Committee for patrolling the highways and surveying the stubble burning in the fields or in any other manner. The Committee shall submit fortnightly reports to the Supreme Court of India at the initial stages or as and when found necessary. The authorities such as the Environment Pollution Control Authority shall also render assistance to the Committee and provide any information sought by the Committee. We make it clear that the appointment of this Committee and the directions in this order are not intended to dilute the powers, functions and the authority of any authorities such as the Environment Pollution Control Authority already created. The object of appointing a Committee is more to facilitate and coordinate the activities of different authorities so that the problem is resolved. The different authorities created by the states or the Centre shall also be free to carry on their own activities without feeling muted by the appointment of the Committee., Let the matter be listed on 26-10-2020.
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Through: Ms. Urfee Roomi, Ms. Janaki Arun, Ms. Anuja Chaudhury, Mr. Ritesh Kumar and Mr. Ayush Dixit, Advocates for Hershey Company versus Others Respondent Through: Mr. Harish Vaidyanathan Shankar, Chief Government Solicitor with Mr. Srish Kumar Mishra, Mr. Alexander Mathai Paidaday and Mr. Krishnan V., Advocates., While hearing a Civil Suit (Commercial) 780/2023 filed by Plaintiff – The Hershey Company, a well‑known chocolate company, seeking an injunction before the Diwali period against the Defendant – Atul Jalan for selling expired chocolates by re‑packaging the same, the learned Single Judge found that the Defendant, who was a rank counterfeiter, had knowledge of and access to the Plaintiff’s mark and packaging and had blatantly copied them, misrepresenting their expired and counterfeit chocolates as Plaintiff’s products., The learned Single Judge, prima facie, concluded that the suit revealed an extraordinary situation involving public health, particularly relating to food products, and therefore directed it to be placed before the Acting Chief Justice of Delhi High Court for being taken up on the judicial side in the manner deemed appropriate. Consequently, the matter was directed to be registered as a public interest litigation., From the order dated 19 December 2023 passed by the learned Single Judge, it is apparent that there is a coordinated and systematic mechanism in place by which the expired products are being re‑packaged and re‑branded with new expiry dates and are being introduced into the markets., Accordingly, issue notice without process fee to the Union of India, Government of National Capital Territory of Delhi and Food Safety and Standards Authority of India and Delhi Police through their standing counsel, returnable on 8 February 2024., The Delhi High Court also appoints Ms. Shwetasree Mazumdar, learned counsel, as Amicus Curiae in this matter., The Registry is directed to forward a copy of this order to Ms. Shwetasree Mazumdar, Amicus Curiae., List on 8 February 2024.
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National High Speed Rail Corporation Limited (appellant) versus Montecarlo Limited & Anr. (respondent). Feeling aggrieved and dissatisfied with the impugned judgment and order dated 23 August 2021 passed by the Delhi High Court in Writ Petition (C) No. 5127 of 2021, by which the Delhi High Court allowed the writ petition preferred by the respondent herein, the original writ petitioner, and quashed the communications dated 27 April 2021 and 28 April 2021 and the notification dated 28 April 2021 by which the original writ petitioner was informed that its technical bid had been rejected on the ground that it was non‑responsive, and consequently directed the appellant to proceed in accordance with law regarding the tender process by further examining the bid of the original writ petitioner, the original respondent National High Speed Rail Corporation Limited has preferred the present appeal., The appellant, National High Speed Rail Corporation Limited, is a Government Company incorporated under the Companies Act, 2013 with equity participation of the Government of India, the Government of Gujarat and the Government of Maharashtra, incorporated with the object to finance, construct, maintain and manage the upcoming High Speed Rail Corridor in India., National High Speed Rail Corporation Limited issued a tender notice on 22 October 2020 calling for bids in relation to Bid Package No. MAHSR‑8 for the design and construction of civil and building works for the depot on a design‑build lump sum price basis for the double‑line high speed railway involving works for site formation, abutment, retaining walls, roadbed for track, box culvert, roads, cable duct, foundations of OHE masts, piping, drainage, water supply, water harvesting, fire fighting, land‑scraping, boundary wall, general inspection train shed, maintenance depot and other associated works at Sabarmati between MAHSR Km. 507.599 and MAHSR Km. 509.726 in the State of Gujarat for the project of construction of the Mumbai‑Ahmedabad High Speed Rail (hereinafter referred to as the Project)., The technical bids submitted by various bidders, including the original writ petitioner, were opened by National High Speed Rail Corporation Limited on 19 February 2021. The original writ petitioner along with four other bidders were declared unsuccessful. National High Speed Rail Corporation Limited informed the original writ petitioner through uploading of the Technical Proposal Evaluation Summary on 27 April 2021 on the CPPP portal that the bid of the original writ petitioner along with four other bidders had been rejected at the technical stage. The original writ petitioner sought the reasons for rejection of its bid. In response, National High Speed Rail Corporation Limited, vide its communication dated 28 April 2021 addressed to the original writ petitioner, informed that its bid was not substantially responsive. A reference was made to Clauses of the Invitation to Bid 28.1 and 42.5. Under Clause 28.1, information relating to the evaluation of the bids and recommendation of the contract award shall not be disclosed to bidders or any other persons not officially concerned with such process until information on contract award is communicated to all bidders in accordance with Invitation to Bid 42. As per Clause 42.5, only after notification of award may unsuccessful bidders request, in writing, a debriefing seeking explanations on the grounds on which their bids were not selected, and the employer shall promptly respond in writing to any unsuccessful bidders who, after the notification of award in accordance with Invitation to Bid 42.1, request a debriefing. It appears that National High Speed Rail Corporation Limited acted as per the aforesaid two clauses., Aggrieved by the communication/notification dated 27 April 2021 and 28 April 2021 respectively and by the disqualification of its bid, the original writ petitioner approached the Delhi High Court by way of Writ Petition (C) No. 5127 of 2021. By the impugned judgment and order, the Delhi High Court allowed the writ petition and quashed and set aside the communications dated 27 April 2021 and 28 April 2021 and the notification dated 28 April 2021 rejecting the bid of the original writ petitioner at the technical stage., While allowing the writ petition, the Delhi High Court commented upon Clauses 28.1 and 42.5 of the Invitation to Bid and observed that not giving reasons at that stage would tantamount to depriving the bidders of the opportunity to approach the court and know the reasons for rejection of their bid. The Delhi High Court then considered the reasons for which the bid submitted by the original writ petitioner was found to be technically non‑responsive, overruled the objections while treating the bid as technically non‑responsive, and held that the bid submitted by the original writ petitioner was substantially responsive and that there was substantial compliance with the terms and conditions of the bid document. Consequently, the Delhi High Court quashed and set aside the communications rejecting the original writ petitioner’s bid at the technical stage as a technically non‑responsive bid and directed National High Speed Rail Corporation Limited to consider and evaluate the bid submitted by the original writ petitioner along with the bids submitted by the four other bidders., Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the Delhi High Court, National High Speed Rail Corporation Limited has preferred the present appeal., Shri Tushar Mehta, learned Solicitor General appearing on behalf of the appellant, submitted that the present matter pertains to the tender floated for works in Package C8, which is part of various other packages being finalized for the implementation of the Mumbai‑Ahmedabad High Speed Rail, popularly known as the Bullet Train Project. He submitted that the Mumbai‑Ahmedabad Project is a fully foreign‑funded project, envisaged when the Japanese and the Indian Governments entered into a Memorandum of Understanding, pursuant to which it was agreed that the project would be fully funded by the concessional Official Development Assistance loan of over Rs 80,000 crore by the Japan International Cooperation Agency (JICA). He further submitted that the Bullet Train Project is a foreign sovereign funded contract distinct from contracts funded from the Consolidated Fund of India., According to the Solicitor General, as per the Memorandum of Cooperation, when the project is fully funded by JICA for an amount of Rs 1 lakh crore with a very negligible rate of interest and repayment in installments of 27 years or more, the process of bidding and subsequent decisions are to be vetted by JICA. The content of the bidding documents was based on JICA’s Standard Bidding Documents (SBD) as well as JICA’s procurement guidelines and the same form an integral part of the loan agreement. In the present case, JICA appointed the Japan International Cooperation Centre (JICC) as consultant., It was further submitted that when the original writ petitioner submitted its technical bid, the technical bid was found to be non‑responsive on the grounds of (i) non‑signing of Form CON: 2.0 Pending Litigation and (ii) non‑signing of 3.0 Litigation History in the physically submitted bid by the authorised representative of the original writ petitioner. The bid document was prepared by JICC and approved by JICA. The bids submitted by the respective bidders were evaluated by JICC as per the JICA Standard Bidding Guidelines, the evaluation was approved by the Tender Committee of the appellant, and finally concurred and approved by JICA. The decision to hold that the bid was non‑responsive was of JICC and was approved by JICA. The appellant, under the contractual mechanism, cannot in its discretion deviate from the evaluation done by JICC, and any unilateral deviation by the appellant or the Government of India may not be acceptable to JICA. Such deviation would also violate the principle of privileged participation, as implementing the Delhi High Court’s order would enable other bidders whose bids were rejected on the same ground to participate in the tender, thereby rendering the entire bidding un‑competitive and having a cascading effect on the other packages., Shri Mehta referred to the relevant clauses of the Memorandum of Cooperation or Understanding entered between JICA and the President of India, JICA’s Standard Bidding Guidelines and the Guidelines for procurement under Japanese ODA loans. He sought to satisfy the court’s conscience that the appellant acted justly in accordance with the Memorandum of Understanding, the loan agreement entered between JICA and the Government of India, and the relevant terms and conditions of the bid document., Technical bid evaluation was done by JICC (consultant appointed by JICA). There was a detailed deliberation by the Technical Consultant on technical bid evaluation. Stage 1 was evaluation of administrative requirements and Stage 3 was evaluation of compliance with technical requirements. JICC recommended that the bids of the five bidders had material non‑conformities and were not in compliance with the technical requirements of the bidding documents and therefore were disqualified. The bid submitted by the original writ petitioner was also found to be non‑responsive and to have material non‑conformities. By letter dated 10 April 2021, the appellant sought the concurrence of JICA to the Technical Bid Evaluation Report. Vide communication dated 23 April 2021, JICA confirmed the Technical Bid Evaluation Report., When JICA, JICC and the Technical Evaluation Committee took a conscious decision that the bid submitted by the original writ petitioner was non‑responsive and not in conformity with the relevant clauses of the bidding document, and the appellant acted upon that recommendation and rejected the bid at the technical stage, the Delhi High Court materially erred in interfering with such a fair and conscious decision in exercise of powers under Article 226 of the Constitution of India., Shri Tushar Mehta submitted that the Delhi High Court has not at all considered the distinction between foreign sovereign funded contracts and contracts funded from the Consolidated Fund of India., Foreign sovereign funded contracts, like the present one, are sui generis species of contracts and are completely different and distinct from Government contracts, Public Works Department contracts or Public‑Private Partnership contracts, which are either wholly or partially funded from public money, i.e., the Consolidated Fund of India or of the State and implemented by a statutory or local authority of the State. In such foreign‑funded contracts, the investor, normally a friendly sovereign country (a developed nation such as Japan), decides to invest in a friendly State (a developing nation such as India) and finances and implements projects meant for the development of the recipient nation., These investments from developed nations are made on the basis of non‑negotiated terms and conditions, where the sole discretion as to the conditions of the investment and the selection of contractors vests with the investor sovereign nation. All crucial aspects of decision‑making and the terms and conditions on which such investment is made remain with the instrumentality or agency of the sovereign which proposes the investment. Indian authorities or local authorities act merely as intermediaries, performing first‑level scrutiny to ensure that the investment and contractor selection are in accordance with the terms proposed by the investor State. The final decision‑making authority regarding selection of contractors remains with the foreign State through which the investment is made. In the present case, the scrutiny of the bids was not done by National High Speed Rail Corporation Limited but by JICC, an independent body authorised by JICA to evaluate the bids as per its terms and conditions, and thereafter, on the basis of JICC’s recommendations, the final decision to select a contractor rests with JICA. Therefore, the discretion of the Indian authority – the appellant – to vary any term is not permissible., The Honourable Gujarat High Court, in its judgment and order in the case of CRRC Corporation Ltd. v. Metro‑Link Express for Gandhinagar and Ahmedabad (MEGA) Company Ltd. (Special Civil Application No. 12833 of 2017), dealt with and considered in detail the role of JICA and the implementing agency of the project in India and the scope of judicial review of Indian courts while exercising power under Article 226 of the Constitution of India. The decision of the Gujarat High Court in that case has been confirmed by the Supreme Court of India. Heavy reliance is placed upon the Supreme Court’s decision in M/s CRRC Corporation Ltd. v. Metro Link Express for Gandhinagar and Ahmedabad (MEGA) Company Ltd., passed in Special Leave Petition (Civil) Diary No. 35385 of 2017., Shri Mehta further submitted that, in the facts and circumstances of the case, the Delhi High Court materially erred in interfering with the tender process in exercise of powers under Article 226 of the Constitution of India. He submitted that the Delhi High Court exceeded its jurisdiction and deviated the scope of judicial review in contractual matters. The Delhi High Court, while exercising powers under Article 226 and interfering with the administrative process concerning the foreign sovereign funded contract/project, did not appreciate the difference between foreign funded contracts and ordinary public works contracts funded from the public exchequer., Considering the special peculiarity of such foreign sovereign funded development contracts, which exist only due to the availability of investment and the willingness of the foreign sovereign country to finance such infrastructural projects, the contract assumes characteristics more akin to private contracts rather than full‑fledged public works contracts where the Government of India is the sole authority of funding and implementation and where public law and judicial review parameters apply in full vigor. Being an investment by a friendly sovereign country on concession, the decision remains with the investor as to through whom the investment is transformed into a public infrastructural project and on what terms and conditions the contractors are to be chosen., The terms of the Notice Inviting Tender (NIT) proposed by the investor assume a sacrosanct effect; any deviation from the same can jeopardise the funding of the infrastructural project. Such contracts have ramifications that are international in nature, far beyond the decision‑making power of the local Government situated in India, and therefore the decision‑making with regard to such contracts depends upon larger considerations of international fiscal policy. Consequently, the scope of judicial review in these foreign funded contracts is far less than that in ordinary Government funded contracts, i.e., contracts funded from the Consolidated Fund of India, whose scope of judicial review is otherwise held to be restricted and limited by the Supreme Court of India. Reliance is placed upon the decision of the Supreme Court in Siemens Public Communication Networks Private Limited and Anr. v. Union of India and Ors., (2008) 16 SCC 215 at paragraphs 20‑24., In foreign funded contracts, there is no room for deviation from essential conditions of the tender proposed by the investor. Signing of the forms to the bid in indelible ink formed an essential condition of the NIT. The doctrine of substantial compliance, which may be applicable in domestic tender matters, shall not be applicable to contracts of the present nature having international ramifications and foreign funding. Reliance is placed upon the decision of the Supreme Court in Poddar Steel Corporation v. Ganesh Engineering Works and Others, (1991) 3 SCC 273. When the final decision‑making authority is under the jurisdictional control of a governmental body in India, the State may adopt a position whereby it allows a tender participant to participate in case there is substantial compliance. However, such a position may not be permissible for contracts issued for implementing foreign funded infrastructural projects, as it would amount to changing the terms on which the investment is agreed to be made., The impugned judgment and order of the Delhi High Court applied the doctrine of substantial compliance, equity and fair play. The appellant submits that the doctrine of substantial compliance shall not be applicable in commercial contracts and its application would violate the essential conditions of the contract. When a condition is specifically imposed by a foreign funding party for an infrastructural project, such condition being non‑negotiable and integral to the contract, adherence to that condition must be total; it is not permissible for the executing authority in India to approve a bid document despite a clear breach of a condition imposed by the foreign funding party. The doctrine of substantial compliance, therefore, cannot be negotiated with the foreign funding party, although it may be permissible in public works funded from the Consolidated Fund of India., The appellant further submits that the Delhi High Court has not properly appreciated the facts while allowing the doctrine of substantial compliance to creep into such foreign funded international projects, which would seriously jeopardise the willingness of the foreign State to finance an infrastructure project of this magnitude. Consequently, the scope of judicial review applicable to contractual matters and projects funded solely from the Consolidated Fund of India, where the decision‑making authority is solely an Indian governmental authority, will not be applicable in such cases. In cases like the present one, the terms offered by the foreign sovereign, on the basis of which it proceeds to finance an infrastructural project, become sacrosanct and cannot be deviated from; compliance must be strict, not merely substantial., As per settled jurisprudence of the Supreme Court of India, the scope of judicial review in contractual matters is extremely limited. The court can intervene only where the process adopted or decision made by the authority is mala fide, intended to favour someone, or is arbitrary and irrational, or where public interest is affected. Reliance is placed upon decisions such as Afcons Infrastructure Limited v. Nagpur Metro Rail Corporation Limited, AIR 2016 SC 4305; B.S.N. Joshi and Sons Ltd. v. Nair Coal Services Ltd. and Ors., (2006) 11 SCC 548; Michigan Rubber (India) Limited v. State of Karnataka, (2012) 8 SCC 216; Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517; Tejas Constructions and Infrastructure (P) Ltd. v. Municipal Council, Sendhwa, (2012) 6 SCC 464; Central Coalfields Limited & Anr. v. SLL‑SML [A Joint Venture Consortium], (2016) 8 SCC 622; and Maa Binda Express Carrier & Anr. v. North Eastern Frontier Railway & Ors., With the limited scope of judicial interference under Article 226, the decision taken in the present case to reject the bid of the original writ petitioner at the technical stage on the ground that it was non‑responsive is to be considered. Considering the relevant clauses of the Invitation to Bid and bid document, it is ultimately for the investor and/or the appropriate authority to determine whether the bid complies with the terms and conditions of the bid document, whether there is substantial compliance, or whether there is any material deviation. Once the appropriate authority or investor concludes that there is a material deviation in the bid, unless there are allegations of mala fide conduct that are established and proved, court interference in exercise of powers under Article 226 with respect to such a conscious decision is not warranted. It is ultimately for the employer to decide whether the bid is technically responsive or there is a material deviation., The High Court’s observations that applying Clauses 28.1 and 42.5 affects fairness in the tender process and the rights of bidders to challenge the decision rejecting their bids have not appreciated the object and purpose of those clauses. The object and purpose of the clauses are not to take away the rights of bidders to challenge the decision but to prevent interference at the stage where the tender process is ongoing. Allowing bidders to approach the court at every stage could further delay the tender process and consequently delay execution of the mega project. After the entire tender process is completed and the work order is issued, the reasons for rejecting the bid can be supplied on request, and the bidder can then take recourse to law. Therefore, the High Court’s observations with respect to the two clauses are unwarranted and beyond the scope of judicial review under Article 226., The findings recorded by the High Court that Invitation to Bid Clauses 28.1 and 42.5 are patently illegal may lead to alteration of tender conditions that are based on JICA’s Standard Bidding Documents and can be altered only with JICA’s concurrence. Seeking alterations in JICA’s Invitation to Bid would amount to renegotiations between the tendering authorities and JICA, which would not only delay Bid Package No. C8 but also the other seventeen bid packages yet to be awarded for this project, valued at approximately Rs 50,000 crore., The confidentiality clauses are part of JICA guidelines, and both the appellant and the participating bidders are bound by them. As a consequence of the High Court’s findings, the confidentiality clauses would have to be removed from all ongoing and future tenders. JICA, being an international funding agency, may or may not agree to alteration of the tendering rules, and negotiations could take a substantial period, potentially leading to a deadlock in all JICA‑funded projects. JICA’s Standard Bidding Documents shall apply to all JICA‑funded projects in India, and therefore this change would have to be implemented across all projects, including but not limited to the Bullet Train Project. Between 2016 and 2021, JICA approved 49 loan agreements amounting to JPY 1,975 billion (INR 132,300 crore) for different projects in India. Consequently, the impugned judgment and order would have a far‑reaching cascading effect, which the High Court has not considered., The Bullet Train Project is a highly prestigious project, and it is imperative in the interest of public welfare that the contract be concluded at the earliest. If every unsuccessful bidder is granted liberty to approach a court of law at their whim seeking remedy against individual grievances, the whole intent and approach behind the project will be throttled. The clauses 28.1 and 42.5 are enacted as per JICA’s Invitation to Bid., The terms of the tender have been applied uniformly to all bidders, and there is no discrimination. The entire tender process has been conducted in a fair and transparent manner. There are no specific allegations of mala fides or favouritism, and therefore the tender process is not vitiated., Invitation to Bid 29.1, in order to enable examination, evaluation and comparison of the bids, permits the appellant to ask any bidder for clarification of its bid, provided the same does not result in a change in the substance of the bid. The submission on behalf of the original writ petitioner that the discretion of seeking clarifications from other bidders except the original writ petitioner is discriminatory and arbitrary is misplaced. The appellant has treated all bidders on an equal footing. The High Court wrongly observed and held that the clarification sought by the appellant only from other bidders is discriminatory. The procedure followed by the appellant in disqualifying the bidder and the nature of clarifications sought from other bidders were strictly as per the protocols laid down by JICA., Evaluation of the bids is done in various stages. In the present case, the original writ petitioner was disqualified at Stage 1 and only the bidders who passed Stage 1 were to proceed to the next stage. Because of its disqualification at Stage 1, no clarifications were sought from the original writ petitioner., On the issue of clarifications, the High Court wrongly concluded that seeking clarifications from other bidders was discriminatory. Other bidders from whom clarifications were sought had cleared Stage 1, and therefore the clarifications were sought from them. The appellant was not obliged to provide an opportunity to Montecarlo – the original writ petitioner – to cure the defects of non‑signing of the forms, and JICA was justified in holding the omission as material and the bid as non‑compliant/non‑responsive. As per Clause A.4(b), all forms must be reviewed exactly as submitted, and errors or omissions may count against the bidder.
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The Technical Bids of four bidders (Bidder Nos. 1, 3, 7 and 9) were substantially responsive as they adhered to the requirements laid down in Stage 1 evaluation. Clarifications to reconfirm compliance with the Bidding Documents were sought by the appellant on the recommendations of the Japan International Consultants Consortium (JICC) in terms of Invitation to Bid clause 29.1 for rectification of the non‑conformities. The decision was affirmed by the Tender Committee of the appellant in its meeting dated 09.04.2021. Consequently, clarifications were sought only from those bidders whose bids were found to be substantially responsive and were in conformity with the evaluation process laid down in Stages 1 and 2. The High Court erred in concluding that such opportunity was discriminatory., The learned Solicitor General submitted that interference with the impugned judgment and order of the Gujarat High Court would have a cascading effect. It would affect the funding to national projects by foreign agencies and further delay the Mega project, namely the Mumbai‑Ahmedabad High Speed Rail (Bullet Train) Project. The impugned judgment has delayed Package C8, which in turn delays other linked packages such as Package D2 concerning the construction of the Sabarmati Depot. The Bullet Train Project is of national importance with a total cost of Rs 1,08,000 crores, substantially funded at a concessional rate of interest by the Japan International Cooperation Agency (JICA). Any delay due to frivolous litigation may render the project commercially unviable and affect the willingness of the financing State to proceed., The appellant prays that the present appeal be allowed and the impugned judgment and order of the Gujarat High Court be quashed and set aside., The appeal is vehemently opposed by Shri Anshin H. Desai, Senior Advocate, appearing on behalf of the respondent. He submits that the Gujarat High Court has not committed any error in allowing the writ petition directing the appellant to proceed in accordance with law regarding the tender process. The appellant’s main contention is that, because the project is funded by JICA, decisions taken therein should not be subject to judicial review. However, the project involves a substantial outlay of the public exchequer: 81 % of the total cost is funded by a JICA loan repayable from the public exchequer with interest, and the remaining 19 % is to be arranged by the Ministry of Railways. Therefore, the tender process is always a matter for judicial review., It is submitted that in CRRC Corporation Limited v. Metro Link Express for Gandhinagar and Ahmedabad (MEGA) Company Limited, (2017) 8 SCC 282, the Supreme Court of India reversed the Gujarat High Court’s decision, held the evaluation erroneous despite the existence of Clause 42.5, and directed further evaluation of the bid. The facts and circumstances in that case are similar to the present case., Even if the appellant’s sole contention were accepted, it cannot be deemed to give the appellant a free hand to act arbitrarily or discriminatorily. The respondent is not seeking award of the contract; the only prayer is that its bid, wrongly rejected at Stage I (Evaluation of Administrative Requirements) by a discriminatory approach, be evaluated further. The respondent’s bid is approximately Rs 32 crores lower than that of L1. The terms of the tender must be applied uniformly to all bidders, with no discrimination even in a JICA‑funded project. Shri Desai has referred to Invitation to Bid clauses 1.1, 22.1, 22.2, 29.1, 33.2, 34, 1.3. The evaluation sequence comprises five stages: (i) Stage 1 – Evaluation of Administrative Requirements; (ii) Stage 2 – Evaluation of Compliance and Responsiveness; (iii) Stage 3 – Evaluation of Compliance with Qualification Requirements; (iv) Stage 4 – Technical Evaluation; (v) Stage 5 – Evaluation of Price Bid., The respondent submitted Form CON 2.0 and Form CON 3.0 with the requisite details and stamps, but inadvertently the forms were not signed. The respondent also submitted Form ACK with a specific declaration that all information provided in the bid was true, correct and accurate as per Paragraph A(i); this form was duly signed and stamped. The Gujarat High Court observed that the evaluation process and holding the respondent non‑compliant at Stage 1 was discriminatory., The JICC Evaluation Report, confirmed by the Ministry of Railways, observed in Paragraph 2.1.1 that there were no material non‑conformities as regards the respondent (5/9) and others, except two bidders. Paragraph 2.1.3 specifically noted a number of non‑conformities in the bids of Bidders 1/9, 3/9, 7/9 and 9/9, creating inconsistencies with their Letter of Technical Bid, an essential document under Invitation to Bid 31.2(a)., Clarifications were sought from the above four bidders, and they were given an opportunity to rectify the non‑conformities in accordance with Invitation to Bid 29.1 to reconfirm compliance with the Bidding Document. In contrast, no such opportunity or clarification was sought from the respondent, contrary to Invitation to Bid 33.2, which defines Material Deviation. Arbitrarily, the respondent’s non‑conformity was held to be material. Hence, the appellant’s action is rightly held to be discriminatory., The sole reason provided for rejecting the respondent’s forms was the absence of a signature, rendering it unknown whether the forms were submitted with the bidder’s knowledge and approval. No other reason was ascribed. The appellant could simply have called upon the respondent to provide a signed copy or to confirm the forms. The respondent stands by its declaration and has not rescinded it. While material deviations of a more serious nature were permitted to be rectified for other bidders, the respondent was denied the same opportunity., Bidder No.9/9 (L2) also failed to put its signature and stamp on the Site Organization Chart in accordance with Invitation to Bid 22.2. The appellant exercised discretion and called upon that bidder to rectify the defect., Bidder No.7/9 (L1) failed to provide details in the Site Organization Chart, Method Statement for Earthwork and other details, yet the appellant exercised discretion under Invitation to Bid 29.1 and permitted the bidder to rectify all defects. The bidder also did not submit the Bid Security Form as required by Invitation to Bid 12.1; despite this contravention, the defect was waived as non‑material., Bidder 3/9 failed to submit details of Key Personnel and an undertaking required in Form ACK, but the appellant gave the opportunity to rectify these defects. These errors are far more serious than the inadvertent error of the respondent, yet no opportunity was given to the respondent., The respondent’s failure to sign Forms CON 2.0 and CON 3.0 is an inadvertent, non‑material non‑conformity under Invitation to Bid 33.2 read with 34 and ought to have been waived, as was done for other bidders with more serious non‑conformities., The Supreme Court of India, in Poddar Steel Corporation v. Ganesh Engineering Works and Others and B.S.N. Joshi and Sons Ltd. v. Nair Coal Services Ltd. and Ors., (2006) 11 SCC 548, held that non‑material non‑conformities can be waived even if no clause permits such waiver. Even if Invitation to Bid 28.1 and 42.5 provide for no reasons to be given, the respondent can approach the court where it perceives foul play. The Gujarat High Court categorically observed that the appellant changed the goal posts and gave a long rope to other bidders while adopting an adverse attitude towards the respondent, which the respondent alleged to be mala fide., The appellant’s claim of a cascading effect is not sustainable, as after the impugned order the appellant has awarded or is in the process of awarding contracts for other packages amounting to about Rs 5,000 crores., The documents produced by the appellant before this Court by way of Interlocutory Application No.128406 of 2021 and Interlocutory Application No.132078 of 2021 do not form part of the record before the Gujarat High Court and therefore may not be considered by the Supreme Court of India. No explanation has been given as to why they could not be placed before the Gujarat High Court., Making the above submissions, the appellant prays that the present appeal be dismissed and that the appellant be directed to proceed and further evaluate the bid submitted by the respondent in accordance with the terms of the bid document., Counsel for the respective parties were heard at length., By the impugned judgment and order, the Gujarat High Court allowed the writ petition preferred by the respondent (original writ petitioner), quashed the communications dated 27.04.2021 and 28.04.2021 and the notification dated 28.04.2021 by which the technical bid of the respondent was rejected on the ground of non‑responsiveness, and directed that the matter be proceeded with in accordance with law qua the tender process by further examining the respondent’s bid., The short question posed for consideration of the Supreme Court of India is whether, in the facts and circumstances of this foreign‑funded project, the Gujarat High Court was justified in interfering with the tender process in the absence of any specific allegations of mala fides or favouritism., The present matter pertains to the tender floated for works in Package C8, which is part of the Mumbai‑Ahmedabad High Speed Rail (Bullet Train) Project, a fully foreign‑funded national project. The project is funded by a concessional Official Development Assistance loan of Rs 1 lakh crores from the Japan International Cooperation Agency, pursuant to a Memorandum of Understanding between the Prime Ministers of Japan and India, which includes technology transfer, Japanese training of Indian human resources, and a ‘Make in India’ component., On 26.09.2016, a discussion between JICA and the Ministry of Railways covered project objectives, consultant selection, implementation schedule, and the preparation of various documents, including technical specifications, basic, standard and detailed design documents, bidding documents, General Arrangement Drawings, cost estimate, construction standards, and environmental impact assessments., The role of JICA, the Japan International Consultants Consortium and the Ministry of Railways was clarified. The General Consultancy’s objectives are to prepare technical specifications, design documents, bidding documents, engineering cost estimates, construction standards, General Arrangement Drawings, and environmental and social impact assessments, and to support the Ministry of Railways for contractor procurement. A Japanese consultant will be selected and engaged by JICA for the study., Implementation arrangements state that the Ministry of Railways must complete pre‑condition items at its own cost before the study commences. The Ministry and the JICA consultants are responsible for preparing draft design documents, reviewing them within 15 days, incorporating comments, and forwarding them to a committee for review. The Ministry will adopt the outcomes within 15 days of receiving the final documents; otherwise, adoption is deemed. JICA will notify the Ministry in writing after deemed adoption. The Ministry will indemnify JICA, the committee and its members against any third‑party claims arising from the review., The JICA consultant will prepare General Arrangement Drawings and the bidding documents, which include: Instruction to Bidders, Bid Form, General Conditions of Contract, Particular Conditions of Contract, General Specifications, Technical Specifications, Bill of Quantities, Design Drawings, Contract Form, Bid Security Form, Performance Security Form, and Employer’s Requirement., Tender assistance includes pre‑qualification assistance (defining technical and financial criteria, preparing draft pre‑qualification documents, assisting the Ministry in announcements, addenda, clarifications, evaluating applicants and preparing a draft evaluation report) and bidding procedure assistance (issuing bid invitations, conducting pre‑bid meetings, handling addenda, evaluating bids, preparing draft evaluation reports, assisting in contract negotiations and preparing draft contract agreements)., The loan agreement No. ID‑P277 dated 28.09.2018 between JICA and the President of India provides a loan of approximately Rs 1 lakh crores, with provisions for repayment, interest and a front‑end fee, and includes procurement procedures. The bidding documents were prepared based on JICA’s standard bidding documents and procurement guidelines, and were approved by JICA through the JICC consultant. The Ministry of Railways acted as the implementing agency., The tenders were invited in accordance with the Record of Discussion for General Consultancy and the loan agreement, using JICA’s standard bidding guidelines. The JICC evaluated the technical bids in four stages: (i) Stage 1 – Evaluation of Administrative Requirements; (ii) Stage 2 – Evaluation of Compliance and Responsiveness; (iii) Stage 3 – Evaluation of Compliance with Qualification Requirements; (iv) Stage 4 – Technical Evaluation., During technical evaluation, clarifications were sought from four bidders other than the respondent (Bidder No.5/9). The respondent’s bid was found to have a material deviation and was disqualified at Stage 1. Bids of other bidders (2/9, 4/9, 6/9, 8/9) also had material deviations and were not further evaluated. By communication dated 23.03.2021, the JICC consciously decided to disqualify Bidders 2/9, 4/9, 5/9, 6/9 and 8/9, while determining that the technical bids of Bidders 1/9, 3/9, 7/9 and 9/9 were substantially responsive.
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JICA concurred with the decision of the Japan International Cooperation Agency (JICC) holding that the Technical Bids of the above four Bidders are substantially responsive and compliant with the Technical Requirements of the Bidding Documents. JICA thereafter recommended that the National High-Speed Rail Corporation Limited (NHSRCL) open the Price Bid of the aforesaid four Bidders after JICA's concurrence of the Final Technical Bid Evaluation Report, which, as observed hereinabove, JICA concurred., From the aforesaid, it appears that a conscious decision has been taken by the Japan International Cooperation Agency (JICC) approved and concurred by JICA on the Bid submitted by the original writ petitioner as non‑responsive and non‑compliant with the technical requirements of the Bidding Documents. The decision of the JICC and JICA has been followed by the appellant, the Corporation, which otherwise would have been bound to do so as per the terms and conditions of the loan agreement as well as the general terms and conditions referred to hereinabove., From the aforesaid, it can be seen that the decision to hold that the Bid was not responsive was of JICC. Under the contractual mechanism, the appellant had no authority to deviate from the evaluation done by JICC. Any deviation by the appellant or Government of India may not be acceptable to JICA, which has agreed to fund a huge sum of approximately Rs 1 lakh crore for the Bullet Train Project, funded on the terms and conditions agreed between JICA and the Republic of India / Hon’ble President of India. It is ultimately for the JICC/JICA to decide whether a Bid submitted by a particular Bidder is responsive or compliant with the technical requirements of the Bidding Documents., From the impugned judgment and order passed by the High Court of Gujarat, it appears that the High Court weighed that some of the Bidders were called for negotiation and the original writ petitioner was not called for negotiation; therefore, the High Court held that the action of the appellant was discriminatory and violative of Article 14 of the Constitution of India. However, the High Court did not appreciate that it was the decision of the JICC, concurred by JICA, that the Bid submitted by the original writ petitioner was non‑responsive and non‑compliant with the Technical Requirements of the Bidding Documents., It appears that the JICC thought it fit to call for clarification from some of the Bidders at the initial stage; however, it was found that the Bid submitted by the respondent original writ petitioner suffered from material deviation, and the JICC thought it fit not to call for any explanation or clarification from the original writ petitioner, and the Bid was rejected at the first stage itself, i.e., at the stage of Technical Evaluation., At the cost of repetition, the appellant acted as per the decision of the JICC concurred by JICA. As per the contractual obligation and the terms and conditions of the loan agreement, the Guidelines for procurement under the Japanese ODA loans, the Memorandum of Understanding and the terms and conditions on which JICA agreed to fund a huge sum of approximately Rs 1 lakh crore, the JICC and JICA can be said to be the final authority and no contrary decision to the decision of the JICC/JICA could have been taken by the appellant, particularly with respect to the Bidding Process. It cannot be disputed that, being the funding agency, JICA’s role is very important and JICA would always have an upper hand and a say in the entire Project. From the material on record, we are satisfied that the Bidding Procedure adopted is transparent, fair and does not suffer from any arbitrariness. There are no allegations of mala fides or favouritism either against the appellant or against JICC or JICA., In light of the above, it is required to be considered whether, in the facts and circumstances of the case, the High Court of Gujarat is justified in setting aside the decision of the appellant, JICC, or JICA in rejecting the Bid submitted by the respondent original writ petitioner on the ground that it is non‑responsive or non‑compliant with the technical requirements of the Bidding Documents., While considering the aforesaid issue, a few decisions of the Supreme Court of India are required to be referred to, coupled with the fact that the Bullet Train Project is a high‑cost and mega Government Project funded by a foreign country and is one of the biggest National Projects. It is to be noted that foreign sovereign‑funded contracts, like the present one, are completely different and distinct from Government Contracts, Public Works Department Contracts, or Public‑Private Partnership Contracts, which are either wholly or partially funded from public money, i.e., the Consolidated Fund of India or of the State and implemented by a statutory or local authority of the State., It cannot be disputed that in the present case, Japan, a friendly sovereign country and a developed nation, has agreed to fund a huge amount for a National Project in favour of another friendly developing nation, the Republic of India. Such a huge sum is funded by the developed nation to implement a Project meant for the development of the developing nation. The contracts are entered into and the huge sum is funded on the basis of non‑negotiated terms and conditions; therefore, the foreign developed nation, which has agreed to invest such a huge amount, is always justified in insisting on its own terms and conditions on which the amount is funded., At this stage, a decision of the Gujarat High Court, confirmed by the Supreme Court of India in the case of CRRC Corporation Ltd. v. Metro‑Link Express for Gandhinagar and Ahmedabad (MEGA) Company Ltd., Special Civil Application No. 12833 of 2017, is required to be referred to. In that case the Metro Rail Project was financed by JICA. One GEC was appointed as consultant. A Bid submitted by one of the Bidders was rejected on the ground that it was non‑responsive. The decision was taken by the Metro Rail Corporation after consulting JICA. Rejection of the Bid at the Technical Stage was the subject matter of a writ petition before the High Court of Gujarat. One of the submissions on behalf of the Bidder was that JICA ought not to have been consulted and that the decision could not have been taken on the basis of JICA’s opinion. While rejecting that submission, it was observed that when the entire project is financed by JICA, and JICA is going to fund the entire project costing Rs 10,773 crore, it is expected that the whole tender process be done after obtaining JICA’s concurrence at all stages. It was held that there is nothing wrong in involving JICA at every stage of the tender process and obtaining JICA’s concurrence. In the present case also, no wrong has been committed by the appellant corporation in accepting and taking the decision to reject the original writ petitioner’s Bid at the Technical Stage on the basis of the decision of the JICC approved and concurred by JICA., It is required to be noted that, as per the tender documents, all Bidders were required to adhere to the requirements as per the terms and conditions mentioned in the tender document. There cannot be any deviation by any Bidder. The terms and conditions of the tender documents were settled by JICA as per JICA’s International Guidelines, which are required to be followed by all Bidders including the original writ petitioner. Therefore, when the terms and conditions of the tender document were settled by JICA, it is ultimately for the JICC/JICA to decide whether a Bid submitted by a particular Bidder is non‑responsive or non‑compliant with the technical requirements of the Bidding Documents. Consequently, when a conscious decision has been taken by the JICC/JICA that the Bid submitted by the original writ petitioner is non‑responsive and non‑compliant, unless there are specific allegations of mala fides or favouritism, the matter could not have been the subject of scrutiny by the High Court of Gujarat in exercise of the powers under Article 226 of the Constitution of India., At this stage, the decision of the Supreme Court of India in the case of Asia Foundation and Construction Ltd. v. Trafalgar House Construction (I) Ltd. and Others, (1997) 1 SCC 738, is required to be referred to. In that case, before the Supreme Court, the offer made by the Bidder, who was found to be L1, was not accepted after consulting the international financial institutions such as the Asian Development Bank or World Bank, approving the same. The Court observed that it is difficult for a country to go ahead with such high‑cost projects unless the financial institutions grant a loan or subsidy. It further observed that when such financial institutions grant a huge loan, they always insist that any project for which a loan has been sanctioned must be carried out in accordance with the specifications, within the scheduled time, and that the procedure for granting the award must be duly adhered to. In the case before the Supreme Court, there was a dispute between the Bank and the consultant, who was called upon to evaluate bids, on the question whether there is any power of making any correction to the bid documents after a specified period. The High Court, after construing certain clauses of the bid documents, concluded that such a correction was permissible, and therefore, the Bank could not have insisted upon granting the contract in favour of the appellant therein. The Supreme Court did not accept the view taken by the High Court, observing that it was not within the permissible limits of interference for a court of law, particularly when the Court had not found any mala fides or favouritism in the grant of contract., From the impugned judgment and order passed by the High Court of Gujarat, as observed hereinabove, the High Court set aside the decision of the appellant to reject the Bid submitted by the original writ petitioner as non‑responsive and suffering from material deviation on the ground of violation of Article 14 of the Constitution of India by observing that other Bidders were called for clarification but the original writ petitioner was not called. However, as observed hereinabove, the appellant had taken a decision as per the decision taken by the JICC/JICA. JICC/JICA took a conscious decision to reject the Bid of the original writ petitioner as non‑responsive and non‑compliant, and the same was found to be a material deviation., It is to be noted that what can be said to be a substantially responsive Technical Bid has been defined under Article 33.2. The High Court in the impugned order observed and held that the Bid submitted by the original writ petitioner can be said to be a substantially responsive Technical Bid. However, when the author of the tender document, in the present case the JICC/JICA, had taken a conscious decision that the Bid submitted by the respondent original writ petitioner is non‑responsive and suffering from material deviation, it was not for the High Court to consider whether the Bid is substantially responsive unless the decision is found to be perverse or suffered from mala fides or favouritism., At the cost of repetition, it is to be noted that under the contractual obligation, it was not open for the appellant corporation or even the Republic of India to deviate from any of the terms and conditions of the loan agreement or the decision of JICC/JICA. Therefore, in the absence of any allegation of mala fides, arbitrariness or favouritism, we are of the opinion that the High Court of Gujarat has committed a grave error in interfering with a conscious decision taken by the JICC/JICA, which has been followed by the appellant., A few decisions of the Supreme Court of India on interference by the courts in tender matters are required to be referred to. In Afcons Infrastructure Limited v. Nagpur Metro Rail Corporation Limited, AIR 2016 SC 4305, the Supreme Court observed that the decision‑making process of the employer or owner of the project in accepting or rejecting the bid of a tenderer should not be interfered with unless the process is mala fide, intended to favour someone, or so arbitrary or irrational that no responsible authority acting reasonably and in accordance with law could have reached it. The Court held that a mere disagreement with the decision‑making process or the decision of the administrative authority is no reason for a constitutional court to interfere., In B.S.N. Joshi & Sons Ltd. v. Nair Coal Services Ltd. and Others, (2006) 11 SCC 548, the Supreme Court summarized that essential conditions must be adhered to; strict compliance is applied where possible; a deviation made in relation to all parties may be permissible; parties benefiting from relaxation should not take a different stand; decisions taken by the appropriate authority upon due consideration of the tender documents and substantial compliance should not ordinarily be interfered with; and where a decision is taken purely on public interest, the court should exercise judicial restraint., In Michigan Rubber (India) Limited v. State of Karnataka, (2012) 8 SCC 216, the Supreme Court observed that the basic requirement of Article 14 is fairness in action by the State and non‑arbitrariness; fixation of a tender value is within the executive’s purview; the authority to formulate tender conditions and award contracts is vested in the State unless the action is malicious or a misuse of statutory powers; preconditions for tenders ensure contractor capacity; and if the State acts reasonably, fairly and in public interest, judicial interference is very restrictive., In Central Coalfields Limited & Anr. v. SLL‑SML (Joint Venture Consortium) and Others, (2016) 8 SCC 622, the Supreme Court held that courts must avoid constructions that render the words used by the author of a document meaningless, that the employer’s decision on whether a term of the Notice Inviting Tender (NIT) is essential should be respected, and that a bid rejected for non‑furnishing of a bank guarantee in the prescribed format was upheld because the majority of bidders complied with the format and the employer’s decision was not perverse., The Court further observed in Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489, that words in a document are not superfluous and must be given meaning; the court must avoid rendering the document’s language meaningless; and that arbitrary power by the executive is impermissible., In G.J. Fernandez v. State of Karnataka, (1990) 2 SCC 488, it was reaffirmed that the employer has the right to enforce the terms of the tender strictly, that deviation is permissible if it affects all intending applicants alike and is not objectionable, and that the principle of a level playing field must be maintained., In Poddar Steel Corporation v. Ganesh Engineering Works, (1991) 3 SCC 273, the Court did not consider the privilege‑of‑participation principle and focused on the decision‑making process, emphasizing that judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides, and that courts will not interfere with bona fide decisions made in public interest even if there is a procedural aberration.
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Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. The Supreme Court of India then laid down the questions that ought to be asked in such a situation. It was said: (Jagdish Mandal case, Supreme Court Cases page 531, paragraph 22) Therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review should pose to itself the following questions: Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; or whether the process adopted or decision made is so arbitrary and irrational that the court can say the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached; Whether public interest is affected. If the answers are in the negative, there should be no interference under Article 226 of the Constitution of India., On asking these questions in the present appeals, it is more than apparent that the decision taken by Chennai City Light (CCL) to adhere to the terms and conditions of the Notice Inviting Tender (NIT) and the General Terms and Conditions (GTC) was certainly not irrational in any manner whatsoever or intended to favour anyone. The decision was lawful and not unsound., The result of this discussion is that the issue of the acceptance or rejection of a bid or a bidder should be looked at not only from the point of view of the unsuccessful party but also from the point of view of the employer. As held in Ramana Dayaram Shetty, the terms of the NIT cannot be ignored as being redundant or superfluous; they must be given meaning and necessary significance. As pointed out in Tata Cellular, there must be judicial restraint in interfering with administrative action. Ordinarily, the soundness of the decision taken by the employer ought not to be questioned, but the decision‑making process can certainly be subject to judicial review. The soundness of the decision may be questioned if it is irrational, mala fide, or intended to favour someone, or if it is a decision that no responsible authority acting reasonably and in accordance with relevant law could have reached, as held in Jagdish Mandal and followed in Michigan Rubber., Therefore, whether a term of the NIT is essential or not is a decision taken by the employer which should be respected. Even if the term is essential, the employer has the inherent authority to deviate from it provided the deviation is made applicable to all bidders and potential bidders, as held in Ramana Dayaram Shetty. However, if the term is held by the employer to be ancillary or subsidiary, even that decision should be respected. The lawfulness of that decision can be questioned on very limited grounds, but the soundness of the decision cannot be questioned, otherwise the Supreme Court of India would be taking over the function of the tender‑issuing authority, which it cannot., If the courts take over the decision‑making function of the employer and make a distinction between essential and non‑essential terms contrary to the intention of the employer, thereby rewriting the arrangement, it could lead to all sorts of problems. For example, the GTC specifically states in Clause 15.2 that any bid not accompanied by an acceptable Bid Security/Earnest Money Deposit shall be rejected by the employer as non‑responsive. CCL ex facie intended this term to be mandatory, yet the High Court held that a bank guarantee in a format not prescribed by it ought to be accepted since that requirement was a non‑essential term of the GTC. From the point of view of CCL, the GTC has been impermissibly rewritten by the High Court., There is a wholesome principle that the courts have been following for a very long time and which was articulated in Nazir Ahmad v. King Emperor, All India Reporter 1936 Punjab Cases 253, namely: 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. Other methods of performance are necessarily forbidden. There is no valid reason to give up this salutary principle or not to apply it mutatis mutandis to bid documents. This principle deserves to be applied in contractual disputes, particularly in commercial contracts or bids leading up to commercial contracts, where there is stiff competition. It follows that if the employer prescribes a particular format of the bank guarantee to be furnished, a bidder ought to submit the bank guarantee in that particular format only and not in any other format. However, an employer could deviate from the terms of the bid document but only within the parameters mentioned above., On the basis of the available case law, we are of the view that since CCL had not relaxed or deviated from the requirement of furnishing a bank guarantee in the prescribed format, every bidder was obliged to adhere to the prescribed format of the bank guarantee. Consequently, the failure of Joint Venture Company (JVC) to furnish the bank guarantee in the prescribed format was a sufficient reason for CCL to reject its bid., There is nothing to indicate that the process by which the decision was taken by CCL to reject the bank guarantee furnished by JVC was flawed in any manner whatsoever. Similarly, there is nothing to indicate that the decision taken by CCL to reject the bank guarantee furnished by JVC and to adhere to the requirements of the NIT and the GTC was arbitrary, unreasonable or perverse in any manner whatsoever., In the case of Maa Binda Express Carrier & Anr. v. North Eastern Frontier Railway & Ors., (2014) 3 Supreme Court Cases 760, the Supreme Court of India considered the scope of judicial review in matters relating to award of contracts by the State and its instrumentalities. The Court observed that while the power exercised by the Government and its instrumentalities in regard to allotment of contract is subject to judicial review at the instance of an aggrieved party, submission of a tender in response to a notice inviting such tenders is no more than making an offer which the State or its agencies are under no obligation to accept. Bidders cannot insist that their tenders be accepted simply because a given tender is the highest or lowest; they are entitled only to fair, equal and non‑discriminatory treatment in the evaluation of their tenders. The award of a contract is essentially a commercial transaction determined on the basis of considerations relevant to such commercial decision, and the terms subject to which tenders are invited are not open to judicial scrutiny unless they have been tailor‑made to benefit a particular tenderer or class of tenderers. The authority inviting tenders may enter into negotiations or grant relaxation for bona fide and cogent reasons provided such relaxation is permissible under the terms governing the tender process., The Court further held that in the matter of award of contracts the Government and its agencies have to act reasonably and fairly at all points of time. To that extent the tenderer has an enforceable right in the court competent to examine whether the aggrieved party has been treated unfairly or discriminated against to the detriment of public interest. The scope of judicial review in contractual matters was also examined in Tata Cellular v. Union of India, Raunaq International Ltd. v. I.V.R. Construction Ltd., and Jagdish Mandal v. State of Orissa, among several other decisions., Thus, from the aforesaid decisions, it can be seen that a court before interfering in a contract matter in exercise of powers of judicial review should pose to itself the following questions: Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; or whether the process adopted or decision made is so arbitrary and irrational that the court can say the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached; and whether public interest is affected. If the answers to the above questions are in the negative, then there should be no interference under Article 226 of the Constitution of India., Applying the law laid down by the Supreme Court of India in the aforesaid decisions to the facts of the case on hand, when a conscious decision was taken by the Japan International Cooperation Agency (JICA) and the Japan International Cooperation Center (JICC) holding the bid submitted by the original writ petitioner as non‑responsive/non‑compliant with the technical requirements of the Bidding Documents and suffering from material deviation, we are of the opinion that the High Court erred in interfering with the tender process and with the decision of the JICC/JICA rejecting the bid at the technical stage., At the outset, it is to be noted that the bid submitted by the original writ petitioner was rejected at the first stage on the ground of material deviation/non‑responsiveness and because the tender was not as per the terms and conditions of the tender document. The High Court, by the impugned judgment and order, set aside the conscious decision taken by JICA, JICC and the appellant, observing that the bid could be said to be in substantial compliance and that, unlike other bidders, the original writ petitioner was not afforded an opportunity to correct its errors, thereby constituting discrimination and violation of Article 14 of the Constitution of India. However, the conscious decision of JICC/JICA that the bid suffered from material deviation and could not be considered substantially responsive was taken after considering the relevant clauses of the Instructions to Bidders (ITB), particularly ITB Clause 33.2, which defines a substantially responsive technical bid. The High Court ought to have appreciated that other bidders who were granted an opportunity to cure defects had cleared the first stage and were allowed to cure defects under ITB Clause 34, whereas the original writ petitioner’s bid was rejected at the first stage itself for material deviation. Consequently, the High Court erred in holding that the denial of an opportunity to cure defects to the original writ petitioner was discriminatory., Even otherwise, once a conscious decision was taken by the JICC and JICA, who are the authors of the terms and conditions of the tender document, that the bid submitted by the original writ petitioner suffers from material deviation, that decision was not open for the High Court to interfere with under Article 226 of the Constitution of India. There are no allegations of mala fides or favouritism. Therefore, the High Court erred in holding that the bid was in substantial compliance. Whether a bid suffers from any material or substantial deviation should be left to the author of the bid document, and High Courts, in exercise of powers under Article 226, should not interfere unless the decision is found to be mala fide, involves favouritism, or is arbitrary., In the present case, the decision to reject the bid of the original writ petitioner at the first stage on the ground of material deviation was taken by the tender committee in concurrence with JICC and JICA. The role of JICA has been extensively dealt with by the Gujarat High Court. When JICA has agreed to fund a huge amount and the terms and conditions of the tender document are finalised by JICC/JICA, such a conscious decision should not be lightly interfered with by the High Court, especially because a High Court decision could have a cascading effect on a foreign‑funded mega project. The scope of judicial review in such foreign‑funded contracts should be far less than in ordinary government‑funded contracts from the Consolidated Fund of India. In foreign‑funded contracts, the only ground for judicial review ought to be limited to whether the executing authority’s action suffers from favouritism or nepotism, or whether concealed grounds would have persuaded the financing authority to cancel the contract., The High Court ought to have appreciated that the Bullet Train Project is the result of long‑drawn deliberations between the Government of India and the Government of Japan. A loan agreement was executed between the Japan International Cooperation Agency (JICA) and the Hon'ble President of India, under which JICA agreed to fund approximately Rs. 1 lakh crore for the project on the terms and conditions mentioned in the loan agreement. The bidding documents are based on JICA’s Standard Bidding Documents and procurement guidelines, which form an integral part of the loan agreement. Any decision contrary to the terms and conditions of the bidding document would alter the loan agreement and would not be permissible. JICA’s role is vital, and foreign‑funded investments such as this concessional Official Development Assistance (ODA) loan are made on non‑negotiated terms where the sole discretion as to the conditions of investment and contractor selection vests with the foreign investor. Therefore, the High Court erred in interfering with the conscious decision taken by JICA and JICC, which was acted upon by the tender committee., Under the circumstances, the High Court erred in holding that Clause 28.1 and Clause 42.5 of the Instructions to Bidders are patently illegal. The clauses were not challenged before the High Court, and they were known to the original writ petitioner at the time of participation. The clauses were put to the knowledge of all participants and applied uniformly. Once the petitioner accepted the terms and conditions of the tender process, including Clauses 28.1 and 42.5, it was not open for the petitioner to later grievance against those clauses., Clauses 28.1 and 42.5 are part of the Instructions to Bidders and therefore part of the bidding document. The loan agreement was materialised after a detailed Memorandum of Understanding between the two Prime Ministers and the subsequent consultancy discussions, culminating in a loan agreement that stipulated that the terms of the contract and the bid document shall be finalised and prepared by JICC and approved by JICA. The contents of the bidding document are based on JICA’s Standard Bidding Documents and procurement guidelines and form an integral part of the loan agreement. Consequently, the High Court’s judgment that these clauses are illegal would alter the terms and conditions of the bid document that were finalised and approved by JICC/JICA., The purpose of the aforesaid clauses is to prevent a possible challenge to the multi‑stage tender process midway. Clause 28 is a confidentiality clause, and Clause 42.5 provides that after notification of award, unsuccessful bidders may request a debriefing in writing, and the employer shall promptly respond. These clauses do not take away the right of bidders to seek judicial scrutiny; they merely defer the timing of disclosure of reasons until after the final award decision. The object is to avoid interference in the tender process before the final award, thereby preventing delays and financial burdens in a mega project funded by a foreign country., Before entertaining writ petitions challenging the tender process midway or interfering with contracts funded by foreign countries, the High Courts should bear in mind that such projects involve bilateral agreements between governments, large foreign loans on non‑negotiated terms, and bidding documents prepared according to the foreign financier’s standard guidelines. Delay in such projects may increase project cost and affect future foreign investment, which is not in the larger public interest. Therefore, judicial interference should be exercised with restraint, keeping in view the principles laid down by the Supreme Court of India in Tata Cellular v. Union of India, 1994 6 Supreme Court Cases 651, paragraph 94: (1) The modern trend points to judicial restraint in administrative action; (2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made; (3) The court does not have the expertise to correct the administrative decision; (4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract.
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Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts. The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi‑administrative sphere. However, the decision must not only be tested by the application of the Wednesbury principle of reasonableness, including its other facts pointed out above, but must be free from arbitrariness, not affected by bias or actuated by mala fides., Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure. Based on these principles we will examine the facts of this case since they commend to us as the correct principles. Even while entertaining the writ petition and/or granting the stay which ultimately may delay the execution of the mega projects, it must be remembered that it may seriously impede the execution of projects of public importance and disable the State and its agencies or instrumentalities from discharging the constitutional and legal obligations towards the citizens., Therefore, the High Court should be extremely careful and circumspect in the exercise of its discretion while entertaining such petitions and/or while granting stay in such matters. Even in a case where the High Court is of the prima facie opinion that the decision is perverse, arbitrary, suffers from mala fides or favouritism, while entertaining such writ petition and/or passing any appropriate interim order, the High Court may put to the writ petitioner’s notice that in case the petitioner loses and there is a delay in execution of the project due to such proceedings initiated by him, he may be saddled with damages caused for delay in execution of such projects, which may be due to such frivolous litigations initiated by him., With these words of caution and advice, we rest the matter there and leave it to the wisdom of the concerned High Court, which ultimately may look to the larger public interest and the national interest involved. In view of the above and for the reasons stated, the impugned judgment and order passed by the High Court is clearly unsustainable and deserves to be quashed and set aside. The present appeal is allowed accordingly. The original writ petition before the High Court filed by the original writ petitioner respondent herein stands dismissed. No costs. Pending applications, if any, also stand disposed of.
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IN THE HIGH COURT OF DELHI AT NEW DELHI. Judgment delivered on 19 September 2023. MAT. APP (Family Court) 290/2018 Appellant versus Respondent. MAT. APP (Family Court) 291/2018 Appellant versus Respondent. Advocates for the Appellant: Lohit Ganguly, Ajay Kumar and Mohit Khatri. Advocates for the Respondent: D.K. Pandey and Vikram Panwar. CORAM: Hon’ble Mr Justice Sanjeev Sachdeva, Hon’ble Mr Justice Vikas Mahajan., The appellant (wife) impugns the common order and judgment dated 18 September 2018 passed by the Family Court, Dwarka, New Delhi, whereby the petition filed by the respondent (husband) under section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955 seeking divorce on the grounds of cruelty and desertion was allowed and the counter‑claim filed by the appellant seeking restitution of conjugal rights was dismissed., The parties were married on 17 February 2002 according to Hindu rites and customs and were blessed with a daughter born on 7 January 2007. According to the respondent they have been living separately since January 2007; according to the appellant they have been living separately since May 2007., The respondent filed the petition seeking divorce on 26 May 2011 alleging that the appellant exerted pressure on him to separate from his family members and live at the appellant’s parental home. He alleged that she neglected other members of his family, would not entertain guests or elders, misbehaved with him, and stayed at her parents’ house on various pretexts. He further alleged that she did not perform household chores., The respondent also alleged that from the first day of marriage the appellant created scenes at night and often denied him conjugal rights, thereby inflicting cruelty. He claimed that the appellant allowed him sexual relations only thirty to thirty‑five times approximately since their marriage., He further alleged that twenty days after the birth of the daughter, the appellant left with her father for her parental house and has not returned to the matrimonial home despite repeated requests and visits by the respondent., The Family Court, after considering the evidence, held that it was clear that the appellant was interested in staying with her husband at the matrimonial house but the respondent was not interested in keeping his wife with him. The court also referred to the statement of the respondent’s father that his son was not ready to reside with the appellant. Accordingly, the Family Court held that the respondent had failed to establish the ground of desertion., Regarding the ground of cruelty, the Family Court held that there was no normal and healthy sexual relationship between the respondent and his wife and that this deficiency struck at the very foundation of their marriage. The court observed that a normal and healthy sexual relationship is a basic ingredient for a happy and harmonious marriage., The Family Court, noting that the parties had been living separately for more than eleven years, held that the marriage had broken down beyond repair, found that the respondent had successfully established cruelty, and granted a decree of divorce against the appellant., With regard to the counter‑claim of the appellant seeking restitution of conjugal rights, the Family Court held that since it had granted divorce on the ground of cruelty, the appellant was not entitled to restitution of conjugal rights., The allegation of denial of conjugal relations made by the respondent is vague and unsupported by specifics. The appellant filed a complaint with the Crime Against Women Cell of the Delhi Police on 23 June 2011 alleging that she had been thrown out and deserted by the respondent and requesting that she be taken back. The respondent appeared before the Crime Against Women Cell and refused to take back the appellant and their daughter, and his father also categorically refused to take back the appellant into their home., In her deposition the appellant stated that the respondent had told her that if she withdrew her complaint with the Crime Against Women Cell he would take her back, but after she withdrew the complaint he reneged and refused to take her back., The Family Court also held that the allegation of desertion had not been proved by the respondent. The judgment clearly holds that it was the respondent who abandoned the appellant and their daughter in January 2007. The respondent has not filed any cross‑appeal impugning this finding., Divorce was granted primarily on the ground that there was denial of conjugal relationship by the appellant and that, having lived separately for eleven years, the marriage had broken down irreparably., Reference may be had to the decision of the Supreme Court of India in Chetan Dass v. Kamla Devi, (2001) 4 Supreme Court Cases 250 wherein the Court held that matrimonial matters are matters of delicate human and emotional relationship, requiring mutual trust, respect, love and affection, and that it would not be appropriate to apply a rigid formula of irretrievable breakdown of marriage as the sole basis for granting divorce., In the present case the allegations of adulterous conduct of the appellant have been found to be correct and the courts below recorded a finding to that effect. Accordingly, the provisions contained in section 23 of the Hindu Marriage Act would be attracted and the appellant would not be allowed to take advantage of his own wrong., Reference may also be had to the decision of the Supreme Court of India in Samar Ghosh v. Jaya Ghosh, (2007) 4 Supreme Court Cases 511 wherein the Court laid down factors relevant for dealing with cases of mental cruelty, including acute mental pain, inability to live together, persistent rude or neglectful behaviour, sustained abusive treatment, and unilateral refusal to have intercourse without valid reason, among others., In the instant case the Family Court held that the cruelty alleged by the respondent had not been proved, but divorce was granted on the ground of denial of conjugal relationship., The ground of denial of conjugal relationship is not available to the respondent, and the Family Court erred in finding that there was denial of conjugal relationship by the appellant. The respondent alleged that he was allowed sexual relations only thirty to thirty‑five times approximately, which does not constitute a complete denial., A girl child was born to the parties on 7 January 2007 and, according to the respondent, the appellant left the matrimonial home on 28 January 2007. The fact of the child's birth shows that the allegation of denial of conjugal relations is incorrect. The respondent admitted in cross‑examination that the last physical relationship occurred in 2006., The Supreme Court of India in N.G. Dastane (Dr) v. S. Dastane, (1975) 2 Supreme Court Cases 326 examined the principle of condonation under section 23(1)(b) of the Hindu Marriage Act, stating that condonation requires both forgiveness and restoration, and that evidence of a normal sexual life despite acts of cruelty may infer condonation., Applying the ratio of Dastane, it is found that the parties cohabited as husband and wife, indulged in conjugal relations leading to the birth of a girl child on 7 January 2007, and then separated about twenty days later. The appellant claims she was turned out of the house, while the respondent claims she left of her own accord., The allegations of desertion have been held not proved. Divorce has been granted solely on the ground of denial of conjugal relationship, which is contradicted by the birth of a child. As held in Dastane, conception of a child cannot be treated as a single act of conjugal relationship; it indicates condonation of earlier denial., According to the impugned judgment, it was the respondent who deserted the appellant. The appellant consistently maintained that she wanted to live with the respondent but he repeatedly declined. She lodged a complaint with the Crime Against Women Cell stating she wanted to stay with him, but he refused. Both the respondent and his father deposed that the respondent was not ready to take the appellant back into his home., The theory of breakdown of marriage is not a ground for grant of divorce under the Hindu Marriage Act. The appellant is not at fault; the respondent is at fault. As held by the Supreme Court of India in Chetan Dass, the respondent should not be allowed to take advantage of his own wrong by claiming desertion after having deserted his wife., With regard to the powers of the Supreme Court of India under Article 142 of the Constitution of India, the Constitution Bench in Shilpa Sailesh v. Varun Sreenivasan, 2023 SCC OnLine SC 544 held that exercise of jurisdiction under Article 142(1) is permissible to do complete justice, and that an order or decree passed by the Supreme Court is executable throughout India., There is a difference between the existence of a power and the exercise of that power in a given case. While the power to pass a decree of divorce by mutual consent exists under Article 142(1), the decision to exercise it must be based on the factual matrix and objective criteria. In Amit Kumar v. Suman Beniwal, 2021 SCC OnLine SC 1270, the Court observed that Section 13‑B of the Hindu Marriage Act requires a waiting period of one and a half years from the date of separation before a decree of divorce by mutual consent can be granted., The Court has listed factors to be considered when granting divorce on the ground of irretrievable breakdown of marriage, including the period of cohabitation after marriage, the last time the parties cohabited, the nature of allegations, orders passed in prior proceedings, attempts at settlement, length of separation (generally six years or more), economic and social status, age, education, dependence of spouse and children, custody and welfare of minor children, and provision for alimony., In terms of the judgment of the Constitution Bench in Shilpa Sailesh, the power to grant divorce on the ground of irretrievable breakdown of marriage is exercised by the Supreme Court of India under Article 142 of the Constitution, and is not vested in High Courts or Family Courts., In the instant case the Family Court considered that the parties had lived separately for eleven years and granted divorce on the ground of breakdown of marriage. Such an exercise of power is not conferred on the Family Court, which must restrict its considerations to the parameters of the Hindu Marriage Act, where irretrievable breakdown is not a ground for divorce., Even the Supreme Court, while exercising discretionary powers under Article 142, takes into account several factors and cautions that grant of divorce on the ground of irretrievable breakdown is not a matter of right but a discretion to be exercised with great care and caution.
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Reserved on: 13 February 2024. Pronounced on: 07 March 2024. Through: Mr. Rajat Wadhwa, Ms. Dhreti Bhatia, Mr. Gurpreet Singh, Mr. Nikhil Mehta and Mr. Himanshu Nailwal, Advocates for the petitioner versus Through: Ms. Rupali Bandhopadya, Assistant Solicitor for the State, Mr. Gitesh Aneja and Mr. Lakshay Kumar, Advocates for respondents 2 and 3. Reference of compoundable offences to mediation. Non‑compoundable serious offences cannot be settled through mediation., The present case revealed a disturbing series of judicial and mediation orders and the prayer made before this Court, which is on three accounts. First, a father estranged from his wife, not currently living with her or their children, seeks reopening of a case of sexual abuse and assault by a near relative in the first degree of relationship on two minors (one who now has attained majority and the other being seventeen years old), after a period of seven years of closing of the complaint filed under Section 7 read with Section 33 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) before a competent Court of law. Second, a Special Court referred a complaint filed under the POCSO Act to mediation, where the victims were minors, on the basis of statements made by both the father and the mother of the minor victims that they wanted to compromise the matter. Third, the matter was mediated and settled in the mediation centre, and on the basis of the settlement, the learned Special Court closed the complaint filed under the POCSO Act., The petitioner, Sh. Rajiv Dagar, by way of the present writ petition under Article 226/227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973, has sought issuance of a writ in the nature of mandamus or any other writ, order or direction for the purpose of quashing the order dated 08 April 2015 passed by the learned Additional Sessions Judge, South Saket Courts, New Delhi (Special Court) in Miscellaneous Application No. 01/2014, and for restoration and revival of the complaint filed under Section 7 read with Section 33 of the POCSO Act against respondents 2 and 3 regarding sexual assault on the minor children of the petitioner., As disclosed from the petition, the petitioner is the husband of respondent 3, and respondent 2 is the brother of respondent 3, i.e., the brother‑in‑law of the petitioner. The petitioner’s children, namely Ms. X, who was about nine years old, and Mr. Y, who was about six years old, were victims of sexual assault at the hands of respondent 2 in the year 2013‑14. In September 2013, the petitioner caught respondent 2 inappropriately touching his children and filed a complaint bearing Diary No. 41B dated 20 September 2013 at Police Station Defence Colony. The petitioner’s wife left the matrimonial home and initiated proceedings against the petitioner, including custody proceedings, in the second week of October 2013, and was granted visitation rights. During the visitation period between 03 January 2014 and 13 January 2014, the petitioner learned, upon being informed by his children, that respondent 2 had inappropriately touched the private parts of both children. Consequently, the petitioner filed a complaint on 15 January 2014 before the local police station as the natural guardian of the children, describing the incident in detail. No action was taken by the police; therefore, the petitioner filed a complaint under Section 33 of the POCSO Act for the heinous offences committed by the maternal uncle of the children., After the complaint was filed before the learned Special Court, the Court directed the police to record statements of the children under Section 24 of the POCSO Act, which were duly recorded, and the petitioner’s minor son and daughter supported their case as alleged in the complaint. Subsequently, the learned Special Court, in terms of Section 35 of the POCSO Act, called the children to the Court for examination on oath, and both children deposed before the learned Special Court about the alleged incident., The petitioner states that after the children deposed before the learned Special Court, the wife of the petitioner, who is the real sister of the accused, approached the petitioner for settling all matrimonial disputes. Unaware of his wife’s real intentions, the petitioner agreed that the matter be referred to the mediation centre. The petitioner’s wife proposed that they settle all disputes, including the present complaint, to put an end to the litigation. Although the petitioner did not wish to withdraw the complaint filed under the POCSO Act, for the sake of his children he proposed that custody of the children be given to him with no visitation rights to the wife or the maternal relatives. A Memorandum of Understanding was executed between the petitioner and his wife, agreeing to apply for mutual divorce and granting custody of the children to the petitioner. A Settlement Agreement dated 27 August 2014 was entered into, wherein it was also agreed that the petitioner would withdraw the present complaint filed before the learned Special Court. The petitioner withdrew the complaint in view of the terms of the mediation, and a separate statement dated 08 April 2015 to this effect was recorded before the Court concerned., The petitioner states that both parties then filed a joint petition for dissolution of marriage, and after the first motion was approved by the learned Family Court, the wife approached the petitioner and requested to take her back and live with him and the children. For the sake of the future of his children, the petitioner allowed his wife to reside at the matrimonial house. The parties thereafter started residing together at their matrimonial home. However, the petitioner was unaware that the accused/respondent 2, in a well‑hatched conspiracy with his sister, had tricked the petitioner into withdrawing the present complaint under the POCSO Act. The petitioner had only agreed to a settlement recorded on 27 August 2014 on the condition that the children would stay with him and the wife would forego all her rights against the children, but the wife failed to fulfil the terms of the settlement agreement. The agreement clearly stated that the parties would be at liberty to revive the pending cases in case of any non‑compliance. Therefore, the present writ petition has been filed before this Court., Learned counsel appearing on behalf of the petitioner argues that the learned Special Court had no power to dismiss the complaint filed under the POCSO Act after taking cognizance under Section 33 of the Act, and the Court could not have allowed the withdrawal of the complaint filed by the petitioner. It is vehemently argued that the learned Special Court could not have referred the present case for mediation between the petitioner and his wife, respondent 3, when the main accused, respondent 2, was not a party to the settlement and was absent from the mediation centre. It is further submitted that, even otherwise, the learned Special Court was wrong in allowing a complaint for a cognizable offence under the POCSO Act to be dismissed on the basis of a settlement between the parties, especially when the victims, i.e., the minor children, had already been examined under Section 35 of the POCSO Act and had categorically stated that respondent 2 had sexually assaulted them. Learned counsel further argues that the learned Special Court did not follow the due procedure established under Section 33 of the POCSO Act and could not have settled the complaint on the basis of a compromise between the petitioner and respondent 3. It is also argued that respondent 3 failed to adhere to the conditions of the settlement dated 27 August 2014 by not granting divorce to the petitioner, and rather, she started living with the petitioner only to save her brother, respondent 2. It is further stated that the order dated 08 April 2015, by which the learned Special Court allowed the complaint to be withdrawn, is a clear misuse and abuse of the process of law and is liable to be quashed at the very threshold, and therefore, the petitioner prays that the present petition be allowed., On the other hand, a counter affidavit filed on behalf of respondent 3, the wife of the petitioner, and counsel appearing on behalf of respondents 2 and 3 argue that the filing of the present petition is a sheer misuse and abuse of the process of law and is motivated by oblique and ulterior motives. It is stated that the petition is not maintainable as there exists no provision in the POCSO Act or any other law governing the present proceedings to revive prosecution for an alleged offence after withdrawal of the complaint by the complainant. It is argued that the petitioner has preferred the present writ petition after a delay of almost ten years and no reasons have been mentioned in the petition to justify such delay. It is alleged that the petitioner filed a false and frivolous complaint under the POCSO Act in which there was no substance and, because of the same, he settled the matter with respondent 3. It is pointed out that the petitioner withdrew the complaint on 08 April 2015 on account of a compromise between respondent 3 and the petitioner, and thereafter, in 2018, when the parties were again embroiled in matrimonial discord, the petitioner filed this petition for revival of the complaint only in 2023. It is further stated that the present writ petition has been filed as a counter‑blast to the complaint case initiated by respondent 3 under the Protection of Women from Domestic Violence Act, 2005 (PWDV Act), wherein the learned Family Court passed an order dated 31 March 2023 directing the petitioner to pay interim maintenance of Rs 80,000 per month from the date of filing of the petition, and these facts have been concealed by the petitioner deliberately to mislead this Court. It is further submitted that the petitioner filed a complaint dated 13 September 2013 bearing Diary No. 27A in Police Station Defence Colony alleging serious allegations against the character of respondent 3, but did not mention any alleged sexually deviant behaviour of respondent 2. As an afterthought, the petitioner levelled some allegations against respondent 2 in another complaint dated 20 September 2013 and thereafter in the complaint filed under the POCSO Act. It is further submitted that the complaint under the POCSO Act was filed in haste and without waiting for any action by the police, as it was filed within nine days of the police complaint. It is also argued that in the action‑taken report filed before the learned Special Court, the concerned Station House Officer stated that the complaint filed by the petitioner against respondent 2 was prima facie false and the allegations seemed motivated to strengthen the petitioner’s case for permanent custody of the children. It is further argued that the petitioner deliberately concealed that all three children, one aged nineteen years, another sixteen years, and one aged eight years, have been in exclusive care and custody of respondent 3, the petitioner’s wife, since 2018, and she has been looking after the children without any support or economic assistance from the petitioner and his family. Accordingly, the respondents pray that the present petition, being frivolous in nature, be dismissed., The material available on record before this Court reveals that the petitioner first filed a complaint dated 13 September 2013 bearing Diary No. 27A before Police Station Defence Colony, a copy of which has been placed on record by respondent 3. In that complaint, he alleged that on the morning of 13 September 2013, his in‑laws, i.e., relatives of his wife, barged into his residence, defamed his daughter on the ground that she was having an affair with a senior colleague, were very aggressive, manhandled him, threatened to kill him, and tried to take away his wife and children. They succeeded in taking away his wife, some ornaments, clothes, and the car keys, while custody of both children remained with the petitioner, who feared that the same people might again try to take away his children in the future., Subsequently, another complaint bearing Diary No. 41B dated 20 September 2013 was filed before the Assistant Commissioner of Police, Defence Colony, alleging that the petitioner’s wife was in a sexual relationship with another man. The complaint reiterated that on 13 September 2013, the family members of the petitioner’s wife barged into his house, abused and manhandled him, and forcibly took away his wife. It further stated that the next day the petitioner received calls from his brother‑in‑law, who threatened him to hand over custody of the children. The complaint alleged that the brother of his wife, respondent 2, has a criminal mindset and that the petitioner saw him touching his son and daughter in inappropriate manners, fearing gross child sexual abuse if the children remained in the custody of his wife and brother‑in‑law., Thereafter, a complaint bearing Diary No. 89B dated 15 January 2014 was filed by the petitioner before Police Station Malviya Nagar on allegations of child sexual abuse at the hands of respondent 2 during the period of interim custody granted to the petitioner’s wife from 03 January 2014 to 13 January 2014. The minor children complained to the petitioner that respondent 2 had continuously touched the daughter’s chest and buttocks despite her resistance, and had touched the son’s thighs and did not stop even after being asked., After filing this complaint before the police, the petitioner preferred a complaint under the Protection of Children from Sexual Offences Act before the learned Special Court constituted under the POCSO Act. The history of the complaints filed on 20 September 2013 and 15 January 2014 was mentioned in the said complaint. The details of the incident, as informed by the minor children, were also mentioned, including how respondent 2 sexually abused the minor children. The complaint was filed on 24 January 2014, and by order dated 11 February 2014, the learned Special Court observed that there were allegations that the minor children, Ms. X and Mr. Y, had been sexually assaulted by their maternal uncle, and directed the investigating officer to record the statements of the children and file a report before the Court. The statements of the minor children were recorded by the concerned police officer on 27 February 2014., The order dated 03 June 2014 records that, since the provision of Section 35 of the POCSO Act is mandatory and the evidence of the child is to be recorded within thirty days of taking cognizance of the offence, the matter was fixed by the learned Special Court for 05 June 2014 for recording the statements of the minor children. On that day, CW‑1 and CW‑2 were examined and discharged., The order dated 28 July 2014 records that both parties requested to explore the possibilities of compromise between them, and accordingly, the matter was referred to the Mediation Centre, Saket Court for 07 August 2014 for the purpose of mediation. The order reads: 'At the request of both parties to explore the possibilities for compromise between them, the matter is referred to Mediation Centre, Saket Court Complex, for 07 August 2014 at 2.00 PM. Parties to appear there accordingly. Put up for further proceedings before this Court on 03 September 2014.', The parties then settled the disputes and a Settlement Agreement was entered into between the petitioner and his wife, respondent 3, before the Mediation Centre, Saket Courts, on 27 August 2014. Pursuant to the agreement, on 08 April 2015 the petitioner gave a statement before the learned Special Court (POCSO) that the matter had been settled between the parties and, in compliance, he did not wish to proceed further in the present complaint and the application filed by him may be dismissed as withdrawn. The order dated 08 April 2015 and the statement of the petitioner read as follows: 'Counsel for applicant submits that the matter has already been settled before the Mediation Centre and the applicant wishes to withdraw the present application. Accordingly, the statement of the applicant has been recorded separately. In view of the statement of the applicant, the present application is dismissed as withdrawn and stands disposed of accordingly.' The statement of the applicant, Rajiv Dagar, reads: 'I am the applicant in this case. I say that all disputes between the parties have been settled amicably in the Mediation Centre, Saket Court. The terms and conditions have been settled between the parties on 27 August 2014. The proceedings of the Mediation Centre are already on record, which is Exhibit CW 1/A, bearing my signatures on each page. The parties have taken the step. So in compliance with the Mediation proceedings, I do not want to proceed further in the matter. The present application may kindly be dismissed as withdrawn.', The respondents have brought to the knowledge of this Court that the petitioner and respondent 3 started living together in the matrimonial house in September 2014 itself, and after the complaint under the POCSO Act was dismissed as withdrawn on 08 April 2015, an FIR registered against the petitioner under Section 313 of the Indian Penal Code was quashed by this Court on 06 April 2015, and another FIR registered under Sections 498A, 406 and 34 of the Indian Penal Code against the petitioner was quashed by this Court on 27 May 2015. The respondents further revealed that the petitioner and respondent 3 were blessed with a third child on 14 October 2015. However, respondent 3 left the matrimonial home along with the children on 04 April 2018. On 07 April 2018, she filed a complaint under the Protection of Women from Domestic Violence Act, 2005, wherein a restraining order was also passed., By order dated 10 July 2019, ad‑interim maintenance of Rs 30,000 per month was awarded in favour of the wife of the petitioner. Thereafter, the learned Family Court, in the proceedings pending under the PWDV Act, passed an order dated 31 March 2023 directing the petitioner to pay interim maintenance of Rs 80,000 per month from the date of filing of the petition under the PWDV Act to respondent 3 and the children., It was only then that the petitioner, on 15 April 2023, within fifteen days of the interim maintenance order, preferred an application under Section 7 read with Section 33 of the POCSO Act before the learned Additional Sessions Judge (POCSO), South East Saket Courts for restoration or revival of the complaint filed on 24 January 2014. However, he later withdrew this application on 22 August 2023 before the learned Sessions Court. Eventually, the present writ petition was filed before this Court on 12 October 2023., The Honorable Apex Court, in the case of Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd. (2010) 8 SCC 24, held that the following categories of cases are normally considered not suitable for alternative dispute resolution processes: representative suits under Order 1 Rule 8 of the Code of Civil Procedure involving public interest; disputes relating to election to public offices; cases involving grant of authority by the court after enquiry such as probate or letters of administration; cases involving serious specific allegations of fraud, forgery, impersonation, coercion; cases requiring protection of courts, such as claims against minors, deities, mentally challenged persons and suits for declaration of title against the government; and cases involving prosecution for criminal offences., Criminal offences are violations against the state or society as a whole, and the prosecution is pursued by government authorities on behalf of the public interest. Attempting to apply alternative dispute resolution methods to serious criminal cases would be impractical and potentially detrimental to the principles of criminal justice, since criminal offences involve violations of laws enacted to protect public safety and order, and the consequences extend beyond the interests of individual parties. Moreover, criminal cases often involve complex legal issues, evidence, and constitutional rights that require careful adjudication by the Courts of law. Victims of criminal offences may seek justice and closure through the formal criminal justice system, which provides avenues for accountability and restitution. Hence, cases involving criminal prosecution cannot be referred to alternative dispute resolution processes, as held by the Honorable Apex Court., The Supreme Court Mediation Manual also provides guidance as to what cases can or cannot be referred by the Courts to mediation., However, the Honorable Apex Court, in the case of K. Srinivas Rao v. D.A. Deepa (2013) 5 SCC 226, held that in a complaint filed by a wife under Section 498A of the Indian Penal Code against the husband and his family, mediation as a method of alternative dispute redressal could be resorted to in order to settle matrimonial disputes, even though the offence under Section 498A of the Indian Penal Code is non‑compoundable in nature. The relevant portion of the judgment reads: 'We, therefore, feel that though offence punishable under Section 498A IPC is not compoundable, in appropriate cases if the parties are willing and if it appears to the criminal court that there exist elements of settlement, it should direct the parties to explore the possibility of settlement through mediation. This is, obviously, not to dilute the rigour, efficacy and purport of Section 498A IPC, but to locate cases where the matrimonial dispute can be nipped in bud in an equitable manner.', In the case of Dayawati v. Yogesh Kumar Gosain 2017 SCC OnLine Del 11032, the Honorable Division Bench discussed the power of criminal courts to refer cases to mediation and held that, although there is no specific statutory provision allowing referral to alternate dispute resolution mechanisms in criminal cases, the process of mediation and conciliation can be utilised for resolving offences which are compoundable as per Section 320 of the Code of Criminal Procedure. It was observed that cases under Section 138 of the Negotiable Instruments Act, 1881, being compoundable in nature, can also be settled through mediation., The provision of Section 320 of the Code of Criminal Procedure enumerates and draws a distinction between offences as compoundable, either between the parties or with the leave of the court. This provision permits and recognizes the settlement of specified criminal offences. Settlement is inherent in this provision envisaging compounding. The settlement can be only by a voluntary process inter se between the parties. To facilitate this process, there can be no exclusion of external third‑party assistance such as neutral mediators or conciliators., Although an express statutory provision enabling the criminal court to refer the complainant and accused persons to alternate dispute redressal mechanisms has not been specifically provided by the Legislature, the Code of Criminal Procedure permits and recognizes settlement without stipulating or restricting the process by which it may be reached. There is thus no bar to utilizing alternate dispute mechanisms including arbitration, mediation, and conciliation (recognised under Section 89 of the Code of Civil Procedure) for settling disputes that are the subject matter of offences covered under Section 320 of the Code of Criminal Procedure., Section 477 of the Code of Criminal Procedure enables the High Court to make rules regarding any other matter which is required to be prescribed. The Mediation and Conciliation Rules, notified by the Delhi High Court in exercise of its rule‑making power under Part X of the Code of Civil Procedure, Section 89(2)(d), and other powers, provide for mediation not only in civil suits but also in proceedings pending in the High Court of Delhi or any subordinate court. Accordingly, these rules apply to mediation in matters referred by the court concerning a criminal case as well as proceedings under Section 138 of the Negotiable Instruments Act., The website of the Delhi District Courts, Delhi Mediation Centre, specifies the categories of cases suitable for mediation. It states that suits for injunction, specific performance, recovery, labour‑management disputes, motor accident claims and matrimonial disputes have met with positive results during mediation. As far as criminal cases are concerned, cases of harassment on account of dowry and cruelty under Sections 406/498A of the Indian Penal Code and under Section 138 of the Negotiable Instruments Act are suitable for mediation., The Bench in Abhishek @ Love v. State of NCT of Delhi 2023 SCC OnLine Del 5057 held that serious criminal offences, which are non‑compoundable in nature, including those under Sections 384, 397, 394, 376, 377 of the Indian Penal Code and under the Protection of Children from Sexual Offences Act, cannot be compromised by way of a mediated settlement agreement.
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The Bench reproduces the following guidelines for mediators to be followed in all mediation centres of the District Courts of Delhi and the Delhi High Court at the time of recording mediation settlements. Offences under Sections 384, 397, 394, 376, 377 and offences under the Protection of Children from Sexual Offences Act, being non‑compoundable, cannot be compounded or compromised by a mediated settlement and should not be the subject of settlement on payment of money. In cases where one FIR involves a compoundable offence and another involves a non‑compoundable offence, the mere presence of the complainant before the Delhi High Court does not confer a right on the accused to seek quashing of the FIR; such discretion lies with the Court depending on the facts and circumstances. Mediators must be sensitised that payment of money cannot become a criterion for quashing FIRs of heinous offences. At the end of a mediated settlement agreement in non‑compoundable cases, mediators must state that quashing of the FIR is at the discretion of the Court and may or may not be granted. Mediators should foresee enforceability issues of such agreements and reflect their explanations in the agreements. Even when both parties have pending cases against each other or when heinous non‑compoundable offences are involved, the agreement is not legally enforceable because there is no assurance of FIR quashing as a matter of right. A mediator is ethically responsible to inform the parties of the legal issues surrounding enforceability. Mediation is a process where disputants constructively settle their disputes; parties must be made aware of technical rules, procedures and procedural justice that may be at the discretion of the Court. The mediator must ensure that one party is not prejudiced by performing their part of the agreement when the agreement depends on the consent of the other party. The present mediated settlement agreement reminds that in a hurry to end litigation, parties should not draw mediation agreements that are non‑enforceable because part of the agreement may be subject to Court discretion, which must be clearly communicated. The directions also emphasize the importance of clear communication in writing the terms and consequences of the mediation agreement for each party before the settlement is reached, written and signed. The mediation agreements should also be written in Hindi where the parties understand Hindi as their mother tongue so that it is completely understood., Conclusion: Cases registered under the Protection of Children from Sexual Offences Act cannot be referred to mediation. The Delhi High Court holds that offences under the Protection of Children from Sexual Offences Act, which are non‑compoundable and are rarely quashed by the Supreme Court of India, cannot be referred to mediation by the Courts and cannot be settled or compromised through mediated agreements, nor should they be subject to resolution through monetary payments or similar arrangements. Allowing such serious offences to be settled through mediated agreements, especially when the settlement is acceded to by the parent or guardian of the minor victim and not by the minor victim himself or herself, would trivialise the gravity of the offence and undermine the rights of minor victims of sexual abuse to seek appropriate legal recourse and justice., In the present case, the complaint under the Protection of Children from Sexual Offences Act was filed by the petitioner, on behalf of his minor children, against respondent No. 2 (the accused) before the learned Special Court constituted for adjudicating cases under the Protection of Children from Sexual Offences Act. On 28 July 2014, considering the statement made by the petitioner and his wife that they wanted to settle their disputes, the Special Court referred the parties to the Mediation Centre, Saket Courts Complex. The complaint was not a matrimonial dispute between husband and wife; it alleged sexual abuse of the petitioner’s minor children by the accused, who was the maternal uncle of the minor victims. Nevertheless, the Special Court referred the matter to mediation, ignoring the principles of mediation and judicial precedents., The Special Court should have examined both the facts of the case and the procedure to be adopted in a complaint received under the Protection of Children from Sexual Offences Act. The petitioner lodged a complaint at the police station disclosing that his minor children had informed him about sexual assault committed upon them by their maternal uncle. However, the police did not register an FIR despite clear allegations falling within the purview of the Protection of Children from Sexual Offences Act, although they were duty‑bound by law. Since no FIR was registered, the Special Court, instead of directing registration of an FIR, called for a status report from the Investigating Officer and did not entertain the matter under Section 190(1) of the Criminal Procedure Code. The procedure under Chapter XIV and Chapter XV of the Criminal Procedure Code was not followed; the police were asked to record statements of the minor children and file a report, a procedure not prescribed for complaints under the Protection of Children from Sexual Offences Act., As a result, no statements under Section 161 or Section 164 of the Criminal Procedure Code of the minor children could be recorded. The record shows that the statements of the victims were recorded by the police on plain white sheets. The status report filed by the Investigating Officer before the Special Court reveals that, without registering an FIR, the police gave a finding that no case under the Protection of Children from Sexual Offences Act was made out because the complaint seemed motivated to strengthen the complainant’s case for permanent custody of his children., Had the police registered an FIR, the offences disclosed would have been punishable under the Protection of Children from Sexual Offences Act, and the statements of the minor children could have been recorded under Section 161 and Section 164 of the Criminal Procedure Code in accordance with Sections 24 and 25 of the Protection of Children from Sexual Offences Act, leading to either a charge‑sheet or a closure report. Since the police did not register an FIR, the Delhi High Court presumes that the complaint was treated as one under Section 7 read with Section 33 of the Protection of Children from Sexual Offences Act. Section 33 provides that a Special Court may take cognizance of any offence without the accused being committed to it for trial, upon receiving a complaint of facts which constitute such offence, or upon a police report of such facts., The Special Court on 11 February 2014 entertained the complaint without taking cognizance of it, as the order sheet does not mention such cognizance, and directed the police officer to record the statements of the minor victims. Upon filing of an application under Section 35 by the State, the Special Court overlooked the provisions of Section 35 of the Protection of Children from Sexual Offences Act, which mandates that the evidence of a child shall be recorded by the Court within thirty days of taking cognizance of the offence. The evidence of the children was recorded before the Court on 5 June 2014 as Child Witness‑1 and Child Witness‑2, wherein they levelled specific allegations of sexual assault against their maternal uncle. After taking cognizance of the offence under Section 33 and recording the evidence, the Special Court nevertheless referred the matter to mediation on 28 July 2014, leaving the proceedings midway, instead of taking the case to a logical end as per law. The order dated 8 April 2015 allowed the petitioner to withdraw his complaint in view of the mediated settlement agreement dated 27 August 2014, contrary to the law., This approach adopted by the Special Court resulted in a gross miscarriage of justice, since the children who were allegedly sexually abused, being minors of tender age, had to be taken care of by a court of law they had approached through one parent., The Delhi High Court notes that, although there is no limitation period for filing a writ petition, the doctrine of delay and laches is applicable in writ petitions. In case of unreasonable delay, the petitioner approaching a constitutional court must explain the circumstances for the inordinate delay in seeking a remedy that could have been sought earlier., In Sudama Devi v. Commissioner & Ors. (1983) 2 SCC 1, the Supreme Court of India held that there is no period of limitation for filing a writ petition under Article 226 of the Constitution, but each case must be decided on facts and circumstances to determine whether the petitioner is guilty of laches. In Northern Indian Glass Industries v. Jaswant Singh (2003) 1 SCC 335, the Supreme Court cautioned that High Courts cannot ignore delay and laches on the part of a petitioner and must obtain a satisfactory explanation for the delay., In Rushibhai Jagdishbhai Pathak v. Bhavnagar Municipal Corporation, 2022 SCC OnLine SC 641, the Supreme Court explained that the law of limitation does not apply to writ petitions, but the discretion of a constitutional court is exercised with caution, applying the principle of delay and laches to secure the quiet of the community, suppress fraud and perjury, quicken diligence, and prevent oppression., The Delhi High Court finds no reason why the present writ petition was preferred in 2023, about nine years after the impugned order dated 8 April 2015. The petitioner mentions that his wife had not given him divorce and she had started living with him from 2015 onwards, violating the terms of settlement, but provides no explanation for filing the petition only in 2023. Moreover, there is no connection between the matrimonial dispute and the sexual abuse of the children, which the petitioner himself compromised in a mediated settlement., The petition also fails to disclose that the petitioner and respondent No. 3 had been living together since 2015, and in 2018 respondent No. 3 left the matrimonial home with all the children, including Ms. X and Mr. Y, who were victims in the 2014 complaint, as well as a third child born on 14 October 2015. The petitioner also did not disclose that after his wife left the matrimonial home in April 2018, she initiated proceedings against the petitioner under the Protection of Women from Domestic Violence Act in 2018. In March 2023, an order directing the petitioner to pay Rs 80,000 as interim maintenance to the wife and the children was passed, after which the petitioner filed an application for restoration of the complaint before the learned Sessions Court, withdrew it, and then instituted the present writ petition., The Court observes that the minor children who were victims in the complaint are now living with the wife (respondent No. 2) since 2018, and the petitioner has been ordered to pay interim maintenance to his wife and his children, who are now aged about 20 and 17 years. It appears that the parties are misusing their children to settle scores. Both the petitioner and respondent No. 3 had jointly submitted to the Special Court that they may be referred to a mediation centre to settle their disputes, and the petitioner himself stated on oath that he wished to withdraw the complaint in view of the settlement agreement., The Court notes that, although the orders and proceedings before the Special Court prima facie reflect an error in referring the case to mediation, the petitioner has not explained why the petition was filed after more than nine years of the impugned order, especially when the complaint under the Protection of Children from Sexual Offences Act was dismissed as withdrawn on the basis of the petitioner’s own statement., It is most disturbing that parents can use the provisions of the Protection of Children from Sexual Offences Act to settle personal scores, and that the estrangement between husband and wife and their legal battles have overridden the welfare of the children. The Court refuses to be a party to insensitivity by ordering the reopening of the lives of the minors, one of whom has attained majority and the other is seventeen, as they are not parties to the reopening of their complaint., In view of the detailed discussion, the Delhi High Court is not inclined to allow the reliefs sought in this petition, namely quashing of the order dated 8 April 2015 and restoration or revival of the complaint filed under the Protection of Children from Sexual Offences Act before the Special Court, since the victims themselves have not prayed for the same. The prayer in this petition stands rejected.
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The series of errors committed and orders passed in this case have forced the Delhi High Court to again remind and reiterate the process of mediation, the dos and don'ts of mediation, especially the don'ts which have somehow escaped the notice of the judge and the mediator concerned, lest such mistakes be committed again in future. The Delhi High Court asks itself whether, despite mediation centres extending extensive training to mediators, there is any need to pass such a direction. The conscience of the Delhi High Court answers that the social face of justice cannot and should not ignore any shortcomings or challenges faced by a court of law in adjudicating cases, even if it is a mediation process for which mediators are trained extensively. The question itself has the answer: if the points raised in this case had been imbibed by the training, why would the present case and many others become the subject matter of writs before constitutional courts., The Delhi High Court should not be taken to be questioning the adequacy, sufficiency or sincerity of mediation training, but since it is the court adjudicating the present case and knows where the shoe pinches, it will be in a position to point it out not for the purpose of criticism but for the betterment of the mediation process. Moreover, it is also the constitutional duty of the Delhi High Court., The Delhi High Court also believes that only after the shoe pinches will steps be taken and remedies adopted to repair it. In this background, while the Delhi High Court stubbornly believes that there should be yoga, that is, the yoga of statutory law in the court and the compromise law in the mediation centre, the true justice and intent of legislation will lose its soul if we cease to adhere to the core principles of mediation., The Delhi High Court opines that the basis of mediation is not solely the British or other foreign jurisprudences but also the unplundered wealth of ancient Indian judicial and mediation jurisprudence found in our old texts, including the Ramayana, when read and understood in detail in the context of the messages conveyed in certain chapters, subject to true interpretation without being referred to as religious texts alone. As per the Holy Bible, Matthew 5:9 urges Christians to use useful means to resolve disputes amicably and that those who are peacemakers shall be called sons of God. Matthew 18:15‑17 states that in case of a deadlock, the parties should contact a third neutral party to resolve the issue. Even in Islam, the Holy Qur’an, the Sunna, the Ijma and the Qiyas support peaceful conflict settlement within the Islamic community, between Islamic and non‑Islamic communities, and between two or more non‑Muslim communities., The Arthashastra by Kautilya and the principles enumerated by judges, commentaries, lectures and mediation training on the mediation process have the potential to give finality to disputes between the parties., Judges and lawyers, past and present, with their hard work have made mediation centres and the mediation process a reality from mere dreamy projects, and have brought Delhi Mediation Centres and the Delhi High Court Mediation and Conciliation Centre (Samadhan) to the glory in which they bask today. They cannot be allowed to go to waste even by a stray case such as the present one., The Delhi High Court also believes that at times a judgment of a court can make its own impact by the sheer weight of compulsion to comply with it and ensure that beautiful dreams such as mediation, no litigation, are realised, taking the process from a procedural height to a judicial revolution., The Delhi High Court firmly observes that in the midst of conflict, mediation is the bridge to resolution and under no circumstances will the bridge be allowed to collapse., The Delhi High Court, before parting, issues a mandatory reminder, rather than a gentle reminder, towards fulfillment of its duty, that in cases involving offences of a serious nature, particularly those falling under the Protection of Children from Sexual Offences Act, no form of mediation is permissible. Such cases cannot be referred to or resolved through mediation by any court. It is essential to uphold the gravity and seriousness of such offences, ensuring that perpetrators are held accountable through appropriate legal proceedings and that victims receive the necessary support, protection and justice they deserve. Any attempt to mediate or compromise in such cases undermines the principles of justice and the rights of victims and must not be entertained under any circumstances by a mediator., In the times of quick references and quick fixes, the Delhi High Court attempts to provide the readers of this judgment with crucial links and extracts to help them stay in touch at the click of a button with the principles laid down in a few important judgments and the manuals of mediation of the Supreme Court, High Courts, et cetera, which are as follows: Mediation Training Manual of India, Mediation and Conciliation Training Project Committee, Supreme Court of India; Mediation Training Manual for Awareness Programme, Mediation and Conciliation Training Project Committee, Supreme Court of India; Mediation Training Manual for Capsule Course, Mediation and Conciliation Training Project Committee, Supreme Court of India; Delhi High Court Mediation and Conciliation Centre; Delhi Mediation Centre; Dayawati v. Yogesh Kumar Gosain 2017 SCC OnLine Del 11032; Chattar Pal v. State 2023 SCC OnLine Del 3026; Abhishek v. Love v. State 2023 SCC OnLine Del 5057., The judges and lawyers are partners in their common pursuit of administration of justice and betterment of society. Their crucial social mission is to achieve a common end of administering timely, inexpensive, equal and impartial justice, whether through litigation or mediation. Whether in courts of law, offices, or mediation and arbitration rooms, lawyers have proved that the partnership between legal power and judicial power has brought functional transformation of jurisprudence in both litigation and mediation., Mediators, while mediating, have to deal with complex situations of human emotions and navigate the complex terrains of legal statutes with unwavering dedication and expertise. Therefore, in modern realities and demands, a foolproof mediation process and mediated settlement agreement will go a long way to liberate the old judicial lifestyle of resolution through litigation towards the new lifestyle of resolution through the process of mediation, however, as per law., Accordingly, the present application stands disposed of in the above terms., A copy of this judgment shall be forwarded by the learned Registrar General of the Delhi High Court to the In‑charge, Delhi High Court Mediation and Conciliation Centre (Samadhan) as well as the concerned In‑charges of all mediation centres in all District Courts of Delhi, for taking note of its contents and for further circulation among all learned mediators. A copy shall also be forwarded to the Director (Academics), Delhi Judicial Academy for taking note of its content.
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Dated this the 21st day of October 2020, petitioners are the students of the National University of Advanced Legal Studies (hereinafter referred to as NUALS) who have approached the Kerala High Court under Article 226 of the Constitution of India, with a prayer for issuing a writ in the nature of mandamus directing the first respondent not to collect other charges except tuition fee on account of the COVID-19 pandemic and with a further direction to the District Collector, the Chairman of the District Disaster Management Authority, to pay the University administration the entire amount due to be paid, within the time limit., In support of the aforementioned prayer, it is averred that petitioner Nos. 1 to 14 are final year students, whereas 15 to 21 are fourth year, 22 to 25 are third year and 26 to 28 are second year students. Different fee structures being followed for different batches of students are evident from a notification dated 18.06.2019 in Exhibit P2, which would reveal that in 2015, 2016, 2017 and 2018 students were supposed to pay tuition fees of Rs.1,00,000/- per year. In addition to the aforementioned tuition fee, students are liable to pay other fees on the following heads: Campus Development & Infrastructure Fee, Library Fee, Information System Facility Fee, Electricity Charges, Students' Welfare Fund, Student's Council Fee, Sports & Games Fee, Moot Court Fee, Medical/Gym/Fitness Fee, Journal Fee, Bus Fee, Miscellaneous Fee, Debating Society Fee (only collected from students of the 2018 and 2019 batches presently)., Sri Santhosh Mathew, learned counsel appearing on behalf of the petitioners, submits that owing to the COVID-19 pandemic, regular classes of the B.A. LLB Degree Course and LL.M Degree were suspended with effect from 11.03.2020 until further orders and the hostels were also closed with inmates instructed to vacate. Since various difficulties were being faced by the students, the University Grants Commission issued a general direction on 27.05.2020, vide Exhibit P4 to the Vice Chancellors of the University, to consider the matter regarding the payment of annual/semester tuition fee, examination fee, sympathetically and, if feasible, to consider offering alternative payment options to students till the situation returns to normal., Vide Government Order dated 13.04.2020, Exhibit P5, Principal Secretary, Higher Education Department, exempted the students from paying hostel fee for the period from 23.03.2020 to 15.05.2020. On 23.05.2020, vide Exhibit P6, the Students Council of NUALS submitted a representation seeking relief from payment of fees, permission to pay tuition fee in instalments and adjustment of the unutilised portion of fee already paid for the final semester of the academic year 2019-20. Vide Government Order dated 25.05.2020, Exhibit P7, accorded sanction for releasing the amount of Rs.94,36,121 to the University, the first respondent., Vide notification dated 01.07.2020, Exhibit P8, the University fixed the last date of remitting the first instalment of fee as 15 July 2020 without fine and with a fine of Rs.50/- on 22.07.2020. However, considering the request made by the Students Council, a provision was made to pay the fee in two instalments in July 2020 and January 2021. No deduction was granted other than the instalment facility, necessitating the petitioners to make another representation dated 04.07.2020, Exhibit P9. On 21.07.2020, the University issued a notification granting deduction of fees under various heads, Exhibit P10. Again a representation dated 22.07.2020, Exhibit P11, was submitted to the Minister of Higher Education and a copy was submitted to the Vice Chancellor, Exhibit P12, seeking waiver on various heads. On 23.07.2020, a meeting was held under the Executive Committee of the Parents Teachers Association and, after deliberations, the University issued a notification dated 24.07.2020, Exhibit P15, formulating suitable guidelines for identifying individual cases and permitting deserving students to remit fee from academic year 2020-21 in four instalments. Even on 27.07.2020, Exhibit P17, the Chairman of the Bar Council issued a circular to all law colleges to consider the request made by the students regarding fee concession., It is in this background that the writ petition has been filed. The Kerala High Court on 24.08.2020, vide detailed order, directed the University to take a decision on the representation submitted by the NUALS Students Council, which is stated to be pending consideration before the Executive Council, NUALS. It was ordered that, until such time, the students would not be removed from the rolls of the University or denied access to online classes., Sri Santhosh Mathew would further contend that the representation of the students was placed before the Executive Council at its meeting held on 19.09.2020. The Council upheld the deductions already granted in the decision dated 18.07.2020 whereby reduction on different heads, in the following manner, was granted: Library Fee 25 per cent, Information System Facility Fee 25 per cent, Electricity Charges 25 per cent, Students' Welfare Fund 25 per cent, Student's Council Fee 50 per cent, Sports & Games Fee 30 per cent, Moot Court Fee 30 per cent, Debating Society Fee 50 per cent, Medical/Gym/Fitness Fee 25 per cent, Bus Fee 30 per cent., Since the students are not availing the gym facility or bus services, at least there should have been a 100 per cent deduction under those heads., Vide reply to the counter, it is demonstrated that the University College is seeking tenders for raising construction owing to the pandemic and the entire expenses of the construction will be placed upon the shoulders of the Council. In order to buttress his arguments, counsel cited a Division Bench judgment of the Honorable High Court of Calcutta in Writ Appeal No. 5890/2020 with connected matters decided on 13.10.2020 where, considering the grievance of the students viz‑a‑viz the schools charging fees during the pandemic, the Court issued certain guidelines and urges the Kerala High Court for causing interference in the report by granting waiver on various heads owing to the COVID-19 pandemic., On the other hand, Dr Thushara James, learned Government Pleader representing respondents Nos. 1 to 4, opposed the prayer by taking up the plea that in the notification dated 18.07.2020, the Executive Council had already granted deduction on various heads like 25 per cent on library fees, Information System Facility fee, Electricity Charges, Students' Welfare Fund, Medical/Gym/Fitness fee, 30 per cent on Sports & Games fee, Moot Court fee, bus fee, and 50 per cent reduction on Student's Council fee and Debating Society fee. It was not possible to further grant any reduction on the aforementioned amount as per Section 20 of the National University of Advanced Legal Studies Act, 2005, empowering the Executive Council to manage and regulate finances, accounts, business and other administrative affairs of the University and also to approve financial estimates of the income and expenditure of the University. It is not appropriate to make a one‑to‑one comparison of fee receipts against usage., The Council, after elaborate discussion on the issue of proportionate reduction of fees and waiver, which were not availed by the students owing to the absence from physical classes, granted concession. The Kerala High Court under Article 226 of the Constitution of India cannot assume the role of an appellate court even if two different views are possible and urged dismissal of the writ petition., I have heard the learned counsel for the parties, appraised the paper book and am of the view that the writ petition does not warrant any interference under Article 226 of the Constitution of India and that the controversy should be brought under the realm of judicial review. No doubt, the University Act empowers the Executive Council to manage and regulate the affairs by passing different orders, precisely, in terms of the interim order of this Court dated 24.08.2020, which reiterated the decision taken in its meeting held on 18.07.2020, whereby a considerable reduction on the heads referred to above has been given. The judgment of the Calcutta High Court is based upon different facts, which cannot be taken as a precedent for the decision of the controversy involved herein. It is settled law that the High Court under Article 226 cannot assume the role of appellate authority; an interference, even if two views are possible, is not permissible. However, keeping in view the financial economy of the country including the State as well as the fact that owing to the COVID-19 pandemic there have been considerable lay‑offs in various sectors as the income of all citizens has been considerably affected, and even in the State of Kerala certain employees working in Government Departments are burdened with a reduction in their salary over a span of six months. Be that as it may, it is a matter of record that since physical classes have not yet opened, the University has not granted 100 per cent reduction under the following heads: Sports and Games fee and Medical/Gym/Fitness fee, whereby reductions of 30 per cent and 25 per cent have been granted respectively. In the peculiar facts and circumstances of the case, I am of the view that a 100 per cent reduction on these two heads should have been given. Accordingly, I direct the Executive Council to reconsider the issue regarding a 100 per cent waiver on these two heads. Let this exercise be undertaken within a period of fifteen days from the date of receipt of a certified copy of this judgment. It is also made clear that the Council, after fixing a time, will notify the timeline to students for availment of the new fee structure without insisting on payment of fine. With the interference aforementioned, the writ petition stands disposed of. The direction contained in this judgment will also inure to the benefit of all similarly situated students who are not arrayed as writ petitioners in the writ petition.
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CNR No. DLNE01-000974-2021; State versus Akil Ahmad and others. Session Case No. 124/21, First Information Report No. 71/20, Police Station Dayalpur. Order on Charge dated 16 August 2023., Parties: 1. Akil Ahmed alias Papad, son of Shri Jamil Ahmed, residing at House No. 1692, Gali No. 17, Rajiv Gandhi Nagar, New Mustafabad, Delhi. 2. Raheesh Khan alias Raisu Khan, son of Shri Rafiullah, 25 Futa Road, Chand Bagh, Delhi. 3. Irshad, residing at House No. 1194, Gali No. 14, Rajiv Gandhi Nagar, New Mustafabad, Delhi., Vide this order, I shall decide the question of charges against accused Akil Ahmad alias Papad, Raheesh Khan, and Irshad., Brief facts: On 25 February 2020, Diary Dispatch No. 14‑A was recorded at Police Station Dayalpur at about 09:50 a.m. to record information received that vehicles parked inside Victoria School, Brijpuri, Wazirabad Road, were set on fire. The call was assigned to Assistant Sub‑Inspector Surender Pal, who visited the place and found a huge mob assembled, raising slogans for and against the Citizenship Amendment Act. The Station House Officer and other senior officers were present and attempted to disperse the mob, which responded by pelting stones at the police team and vandalising vehicles. The mob also set fire to vehicles parked in front of Victoria Public School and carried weapons such as stones, rods and danda, blocking the road. Assistant Sub‑Inspector Surender Pal prepared a rukka on 28 February 2020 based on his observations, and the FIR was registered under sections 147, 148, 149, 436, 427, 323, 341, 120‑B of the Indian Penal Code and sections 3 and 4 of the Prevention of Damage to Public Property Act., Further investigation was assigned to Sub‑Inspector Shiv Charan Meena. The Investigating Officer prepared a site plan of the incident location (Main Wazirabad Road, Victoria Public School, Delhi) and clubbed several complaints made by Farooq Ahmad, Shahbaz Malik, Nadeem Farooq and Jai Shankar Sharma. A statement of Constable Piyush Pratap was also recorded, in which he claimed to have identified three persons among the rioters on 25 February 2020. The Investigating Officer obtained call‑detail records of the mobile numbers used by the accused. The accused were arrested by Inspector Ashish of the Crime Branch in FIR No. 84/20, Police Station Dayalpur, and on 16 April 2020 all three were taken into custody at Mandoli Jail. Investigation was later handed back to Assistant Sub‑Inspector Surender Pal, who recorded the statement of Constable Piyush., After completion of investigation, Assistant Sub‑Inspector Surender Pal prepared a chargesheet against Akil Ahmed alias Papad, Raheesh Khan and Irshad for offences punishable under sections 147, 148, 149, 436, 427, 323, 341, 120‑B of the Indian Penal Code and sections 3 and 4 of the Prevention of Damage to Public Property Act. The chargesheet was filed on 14 July 2020 before the Duty Metropolitan Magistrate (North‑East), Karkardooma Court, Delhi. On 9 December 2020, the Learned Chief Metropolitan Magistrate, North‑East District, Karkardooma Court, Delhi, took cognizance of the offences. On 1 February 2021, the case was committed to the Court of Sessions by the Learned Chief Metropolitan Magistrate. On 8 November 2021, the first supplementary chargesheet along with a complaint under section 195 of the Criminal Procedure Code and certain documents was filed by Sub‑Inspector Rajiv Kumar before the Duty Metropolitan Magistrate (North‑East). On 15 February 2022, the Learned Chief Metropolitan Magistrate sent this supplementary chargesheet to the Court of Sessions. On 16 February 2023, a second supplementary chargesheet together with additional documents and fresh statements was filed directly before this court., Arguments of Defence: I heard the Learned Special Public Prosecutor and the learned defence counsels on the point of charge and have perused the material on record., Counsel for accused Akil Ahmed alias Papad, Mr. Mohd. Hasan, argued that Constable Piyush did not mention Akil’s name in his first statement, referring only to the burning of a vehicle; therefore, no case for offence under section 436 of the Indian Penal Code is made out. He further contended that the time of the incident was not clarified by the witnesses and that the prosecution record shows contradictions, making the case doubtful., Counsel for accused Raheesh Khan and Irshad, Ms. Shabana, submitted that four complaints were clubbed to cover two places of incidence. She noted that complainants referred to the intervening night of 24‑25 February 2020, whereas the chargesheet states that Constable Piyush saw the incidents on 26 February 2020. She highlighted that Constable Piyush’s statement dated 30 March 2020 recorded the date of the incident as 25 February 2020 and listed five names. In 2023 the same witness amended his statement to say that the accused were in the mob at 09:30 a.m. on 25 February 2020. Similar changes were made by other witnesses. She further pointed out that only two eye‑witnesses, Constable Piyush and Mr. Chavvi, have been cited, and that the statement of Mr. Chavvi does not specify any FIR or time of the incident. Both defence counsels submitted that the case is fit for discharge of the accused., An application under section 227 of the Criminal Procedure Code was moved on behalf of accused Akil Ahmad seeking discharge on the ground that the police witness’s statement referred to a different period and that the call‑detail records relied upon by the prosecution tend to exonerate the applicant., Counsel for the prosecution, Learned Special Public Prosecutor Sh. Madhukar Pandey, argued that the subsequent statements of the complainants, Constable Piyush and the first Investigating Officer clarify the time of the incidents and leave no doubt regarding the involvement of the accused., Legal provisions: Section 3 of the Prevention of Damage to Public Property Act provides punishment for mischief causing damage to public property. Section 4 of the same Act provides punishment for mischief causing damage by fire or explosive substance. Section 34 of the Indian Penal Code defines acts done by several persons in furtherance of a common intention. Sections 147, 148 and 149 of the Indian Penal Code deal with rioting, rioting with a deadly weapon and liability of members of an unlawful assembly. Section 188 deals with disobedience to an order duly promulgated by a public servant. Section 323 deals with voluntarily causing hurt. Section 341 deals with wrongful restraint. Section 427 deals with mischief causing loss or damage of fifty rupees or more. Section 436 deals with mischief by fire or explosive substance causing destruction of a building used as a place of worship, dwelling or for custody of property., The ingredients of the offence defined under section 120‑B of the Indian Penal Code were explained by the Supreme Court in Lennart Schussler v. Director of Enforcement (1970) 1 SCC 152. The Court held that a criminal conspiracy requires an agreement between two or more persons to do an illegal act or a legal act by illegal means, and that the agreement must be followed by an overt act. The conspiracy is complete when the conspirators have agreed to commit an act that is itself an offence; no overt act need be established thereafter., Complaint of Farooq Ahmed Nawab, manager of Victoria Public Senior Secondary School, A‑5, Brijpuri, Wazirabad Road, Delhi‑94: In his complaint dated 27 February 2020 (recorded vide Diary Dispatch No. 11‑B dated 27 February 2020 and Diary No. 5 dated 2 March 2020), he alleged that on the intervening night of 24‑25 February 2020 rioters set fire to two buses (Swaraz Mazda, registration DL‑1PB‑9321 and DL‑1PB‑9352) parked outside the school, completely destroying engine, seats, body and tyres, and also broke all glass of the school building. He further alleged that on the intervening night of 25‑26 February 2020 the rioters burnt a Santro car (registration DL‑5CQ‑6863) and a Maruti Suzuki van (registration DL‑1K‑6994) parked inside the school campus, and vandalised the Principal’s Office and Manager’s Office. In his statement dated 5 March 2020 recorded under section 161 of the Criminal Procedure Code, he repeated these facts, adding that the riot was both against and in favour of the Citizenship Amendment Act/National Register of Citizens. In a subsequent statement dated 5 February 2023, he clarified that the correct date and time of the incident were 25 February 2020 at around 9‑10 a.m., and that he and his son Nadeem were on the terrace of his house when the fire occurred. He produced photographs of the burnt school and the two buses taken on a Samsung mobile, which were later developed at Deepak Photo Studio, Gokalpuri, and handed to the Investigating Officer. The mobile phone was later reported as damaged and unavailable., Complaint of Nadeem Farooq, son of Farooq Ahmed Nawab: In his complaint dated 29 February 2020 (recorded vide Diary Dispatch No. 21‑B and Diary No. 37), he alleged that on the intervening night of 24‑25 February 2020 a riotous mob entered Victoria Public Senior Secondary School and damaged his Ford Endeavour (registration DL‑10CH‑9129), breaking its glass and body. His statement dated 5 March 2020 under section 161 of the Criminal Procedure Code echoed the earlier complaint, noting the riot was against and in favour of the Citizenship Amendment Act/National Register of Citizens. In a later statement dated 5 February 2023, he corrected the date and time to 25 February 2020 at around 9‑10 a.m., stating that he was on the terrace of his house and had taken photographs of the burnt vehicle with his father’s Samsung mobile, which were developed at Deepak Photo Studio and submitted to the Investigating Officer. The mobile phone was reported as damaged., Complaint of Jai Shankar Sharma, manager of Aman Motors Workshop, A‑7, Khasra No. 30/2, Main Wazirabad Road, Brijpuri, Delhi: In his complaint recorded vide Diary Dispatch No. 32‑B dated 2 March 2020 and Diary No. 86 dated 3 March 2020, he alleged that on the intervening night of 24‑25 February 2020, between approximately 12 a.m. and 1:30 a.m., a mob threw petrol bombs through the workshop windows and set fire to the premises, causing 10‑15 motorcycles and scooters parked inside to catch fire. His statement dated 5 March 2020 under section 161 of the Criminal Procedure Code repeated these facts, adding that the riot was both against and in favour of the Citizenship Amendment Act/National Register of Citizens. In a subsequent statement dated 5 February 2023, he clarified that the correct date and time were 25 February 2020 at around 9‑10 a.m. He produced photographs of the burnt workshop and the motorcycles taken on a Samsung mobile, which were printed at his home and handed to the Investigating Officer. The mobile phone was later reported as damaged, and he was unable to identify any individual from the mob due to the large crowd., Complaint of Shahbaz Malik: In his complaint dated 2 March 2020 (recorded vide Diary Dispatch No. 39B dated 2 March 2020 and Diary No. 125 dated 5 February 2020), he alleged that on the intervening night of 24‑25 February 2020 rioters damaged his Innova Crysta (registration DL‑14CE‑6530) parked inside Victoria Public Senior Secondary School, breaking its glass and body. His statement dated 5 March 2020 under section 161 of the Criminal Procedure Code echoed the complaint, noting the riot was both against and in favour of the Citizenship Amendment Act/National Register of Citizens. In a later statement dated 5 February 2023, he corrected the date to 25 February 2020, stating that at around 9‑10 a.m. he saw a large number of persons coming from the side of Chand Bagh, damaging his vehicle. He produced photographs developed at Deepak Photo Studio, taken with the Samsung mobile of Manager Farooq Ahmed, and submitted them to the Investigating Officer. The mobile phone was reported as damaged, and he could not identify any individual from the mob., Statement of Shri Deepak Kumar dated 25 June 2020 under section 161 of the Criminal Procedure Code: He was working as a driver in Victoria Public School and identified the burnt Swaraz Mazda buses (DL‑1PB‑9321 and DL‑1PB‑9352), the Maruti van and the Santro car (DL‑5CQ‑6863) in Wazirabad Pit., Statement of Shri Chavvi Shyam dated 10 August 2020 under section 161 of the Criminal Procedure Code: On 25 February 2020, while walking to his plastic godown in Gali No. 2, Dayalpur, he saw a gathering of about 1,000‑1,200 persons outside Victoria School committing vandalism and arson. He hid on the opposite side of the road, later returned home, and identified the faces of some rioters as Raees, Akil Ahmad and Irshad, whom he had previously seen in the area., The Investigating Officer also recorded statements under section 161 of the Criminal Procedure Code of callers named Devender Kumar, Rahul and Neeraj Jain, who had called the police helpline on 25 February 2020 regarding the incident., Statement of Constable Piyush Pratap dated 30 March 2020 under section 161 of the Criminal Procedure Code: On 25 February 2020 he was on duty on Wazirabad Road near Victoria School with outer‑force staff. He observed a large number of rioters moving towards Chand Bagh, pelting stones, committing arson and damaging private and government property. At around 09:30 a.m. another mob came from Chand Bagh, also engaging in arson and stone‑pelting, and set fire to vehicles parked inside the school and on the Service Roads of Brijpuri and Yamuna Vihar. He identified three rioters as Chand Mohammad Mukhtiyar, Raheesh Khan and Firoz., In a subsequent statement dated 16 April 2020 under section 161 of the Criminal Procedure Code, Constable Piyush stated that during a visit to Mandoli Jail on 16 April 2020 he identified accused Akil Ahmad alias Papad, Raheesh Khan and Irshad as having participated in the vandalism and stone‑pelting at Victoria School on 25 February 2020 during the Citizenship Amendment Act/National Register of Citizens protest. He noted that they were well known to him as Beat Constables and had also damaged a vehicle parked towards Yamuna Vihar., In a later statement dated 5 February 2023 under section 161 of the Criminal Procedure Code, Constable Piyush reiterated that on 25 February 2020 he was on duty with outer‑force at Victoria School during the Citizenship Amendment Act/National Register of Citizens protest. At around 09:30 a.m. rioters entered the school from Chand Bagh, vandalised and set fire to property, and he identified the accused Akil alias Papad, Irshad and Raheesh Khan, informing Investigating Officer Assistant Sub‑Inspector Surender Pal on 30 March 2020., Statement dated 16 April 2020 under section 161 of the Criminal Procedure Code by Assistant Sub‑Inspector Ravinder Kumar, HC Devender, Constable Azad, Constable Amit and Constable Sandeep: On 11 March 2020, as members of the Crack Team accompanying Inspector Ashish Kumar in the investigation of FIR No. 84/20, they identified accused Raheesh Khan alias Raees during the riot in Chand Bagh, noting his involvement in stone‑pelting, arson and looting. They stated that the accused had been seen repeatedly on 24‑26 February 2020 supporting the rioters. They later arrested Raheesh Khan on 1 April 2020, Irshad on 10 April 2020, and Akil Ahmad alias Papad on 10 April 2020, and recorded that the three accused confessed to their involvement in the incidents at Aman Motors Showroom and Victoria Public School., Statement dated 16 April 2020 under section 161 of the Criminal Procedure Code by Inspector Ashish Kumar: He was the Investigating Officer in FIR No. 84/20, Police Station Dayalpur, and arrested several accused persons in that case. He stated that the Crack Team identified accused Akil Ahmad alias Papad, Raheesh Khan alias Raees and Irshad, who confessed to their involvement in the incident of 25 February 2020 at Victoria Public School and Aman Motors Showroom, and that he telephonically informed Assistant Sub‑Inspector Surender Pal of this investigation., Statement dated 5 February 2023 under section 161 of the Criminal Procedure Code by Assistant Sub‑Inspector Surender Pal: He recorded that on 30 March 2020 Constable Piyush gave a statement that on 25 February 2020 at around 09:30 a.m. he was on duty with outer‑force at Victoria School, when a large number of protesters against the Citizenship Amendment Act/National Register of Citizens came from Chand Bagh, entered the school and started vandalism and arson. Constable Piyush identified three rioters as Akil alias Papad, Irshad and Raheesh Khan. Assistant Sub‑Inspector Surender further explained that due to a clerical mistake the names Chand Mohammad Mukhtyar and Firoz were incorrectly typed in Constable Piyush’s statement, and the date was mistakenly recorded as 26 February 2020 instead of the correct date 25 February 2020 at around 09:30 a.m., It is relevant to note that the first chargesheet was signed by the Station House Officer and the Assistant Commissioner of Police on 13 July 2020, charging all three accused. The chargesheet referred to the complaints of all complainants, who had mentioned the intervening night of 24‑25 February 2020 as the time of the alleged incidents, while one complaint also referred to the intervening night of 25‑26 February 2020. The statement of Constable Piyush recorded on 30 March 2020 indicated the date of his duty as 25 February 2020, not 26 February 2020. The prosecution’s position regarding the time of the incidents remained the intervening night of 24‑25 February 2020. The evidence against the accused relied primarily on Constable Piyush’s statement, which originally mentioned 25 February 2020 at 09:30 a.m. and identified Chand Mohammad Mukhtyar, Raheesh Khan and Firoz. However, the chargesheet named three different persons as accused, whose names did not appear in that statement. The typographical error identified by Assistant Sub‑Inspector Surender Pal in his statement dated 5 February 2023 was discovered only after the chargesheet had been filed., The prosecution’s stance on the timing of the alleged incidents remained unchanged in the first supplementary chargesheet filed by Sub‑Inspector Rajiv on 8 November 2021. In that supplementary chargesheet, the Investigating Officer also referred to a later statement by another witness, Mr. Chavvi Shyam, who claimed to have seen rioters outside Victoria School on 25 February 2020 between 9‑10 a.m. and to have seen the three accused among them. The Investigating Officer further noted that complainant Farooq Ahmad had alleged a separate arson incident on the intervening night of 25‑26 February 2020, which would be investigated separately., Subsequent developments during the hearing on the point of charge: On 10 September 2021, this court observed that the chargesheet disclosed incidents on two dates – the intervening night of 24‑25 February 2020 and the intervening night of 25‑26 February 2020 – and referred to a status report filed by the Investigating Officer indicating that a separate chargesheet would be filed for the latter incident. The first supplementary chargesheet was filed after that hearing. On 1 April 2023, while hearing arguments on the point of charge, this court referred to the background and timing of the incident for which the FIR was registered, and posed several questions to the prosecution for clarification., Questions posed by the North‑East District, Karkardooma Court, Delhi: (i) If the FIR was registered based on the information received and observations made by Assistant Sub‑Inspector Surender Pal on 25 February 2020 at 09:50 a.m., why was an earlier incident required to be clubbed in this case? (ii) Did Delhi Police receive any information about a riot during the night of 24 February 2020 and the early morning of 25 February 2020 at Victoria Public School or nearby locations, and was any FIR registered on that basis? (iii) Is there any evidence on record showing which specific mob committed which specific act, given that there were mobs both for and against the Citizenship Amendment Act at the place? Further questions will be raised based on the prosecution’s response.
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Karamveer Singh to respond to aforesaid questions, but vide order dated 22.05.2023, Karkardooma Courts, Delhi recorded that none of the three queries were answered in that report. Thereafter, another report was filed on 18.07.2023, wherein reference to subsequent statements given by Constable Piyush, Assistant Sub-Inspector Surender and the complainants were said to satisfy the queries raised by Karkardooma Courts, Delhi. I shall analyse the evidence accordingly in the background of the above‑mentioned situations., First of all, it is well apparent that till the time Karkardooma Courts, Delhi started raising questions over date and time of incidents clubbed for prosecution in this case, the stand of the Investigating Officer as reflected from the main chargesheet and the first supplementary chargesheet remained that except for one, all other incidents as reported by different complainants took place in the intervening night of 24/25 February 2020. Thereafter, an application under section 227 of the Criminal Procedure Code on behalf of accused Akil Ahmad came on the record. The Investigating Officer was now compelled to look back into the evidence projected in this (Pulastya Pramachala) Assistant Sessions Judge‑03, North‑East District, Karkardooma Courts, Delhi Crime Narrative Report Number DLNE01‑000974‑2021 State v. Akil Ahmad etc., Supreme Court No.124/21, FIR No.71/20, Police Station Dayalpur Order on Charge dated 16.08.2023 in support of chargesheeting the accused persons., Thereafter, even though neither any permission was sought from Karkardooma Courts, Delhi, nor granted by the court, the Investigating Officer/Station Inspector Rajiv went on to record fresh statements of all the complainants in respect of time of the alleged incidents. It was a rare kind of coincidence that all these different complainants suffered the same kind of problem i.e. shock/trauma for reporting wrong date and time in their complaints and realizing such trauma after around three years from making their respective complaints, in order to give a changed version of date and time of the alleged incidents. Such developments and the alleged trauma need to be appreciated in the background of proceedings taken place in this case., When the FIR was registered in this case mentioning time of alleged incident to be 25 February 2020 at about 9 AM to not known, it was an incorrect and illegal action on the part of the then Investigating Officer to club the complaints reporting the incidents of such time, which were prior to the time of incident recorded in the rukka prepared by Assistant Sub-Inspector Surender Pal for registration of this case., Clubbing of several complaints could have only legal basis when the time and place of incidents were reportedly same, so as to show the possibility of continuous action on the part of the same culprits resulting into such different incidents. It is a case of prosecution itself and a well known fact that riots in North‑East Delhi continued for the period from 24 February 2020 till 26 February 2020. For apparent legal reasons, different FIRs were registered for different incidents of vandalism or arson or injury to any person, even if taken place in one particular area, but at different points of time. Unless there be a case of continuous criminal activity by the same mob, vicarious liability by virtue of Section 149 of the Indian Penal Code could not have been imputed to any person, simply on the basis of plea and evidence that he was a member of a riotous mob at some point of time in such area. That is why separate investigation into separate cause of action is required under the law. Section 220 of the Criminal Procedure Code also refers to one series of acts which are so connected together as to form the same transaction, resulting into more offences than one and committed by the same person, to justify one trial of such person for every such different offences., In the present case, there was no such reporting to police at the time of clubbing the above mentioned complaints that the same mob had been indulging into vandalism and arson since the intervening night of 24/25 February 2020 till the time of information recorded vide Diary Dispatch No.14‑A on 25 February 2020 at 09:50 AM. Therefore, when there were specific observations of Assistant Sub-Inspector Surender Pal regarding criminal acts seen by him while visiting the place near Victoria Public School on 25 February 2020 after 09:50 AM, only those causes of action could have been taken up for investigation in this case, which had connection with the incidents mentioned in the rukka. There could not have been any presumption that the mob active during the intervening night of 24/25 February 2020 was the mob during reporting of information vide ..., Police still investigated the aforesaid complaints with reported time of intervening night of 24/25 February 2020 in this case and gave a conclusion alleging that accused persons were behind such incidents. However, their conclusion as reported in the main chargesheet and first supplementary chargesheet was erroneous for two reasons. First, the name of these accused persons was nowhere mentioned in the statement of Constable Piyush recorded by that time. Secondly, the time of incidents seen by two alleged eyewitnesses i.e. Constable Piyush and Chavvi Shyam, was 9‑10 AM of 25 February 2020, rather than intervening night of 24/25 February 2020. The subsequent statements of the complainants were thus recorded only to cover up the above mentioned lacuna in the prosecution and to justify chargesheeting the accused persons in this case., Interestingly, the complaints and initial statement of the same complainants as recorded on 05 March 2020 and of Constable Piyush as recorded on 30 March 2020 are also relied upon as evidence by the prosecution in this case. Thus, there is a conflict between two sets of relied upon evidence of the prosecution in respect of date and time of the alleged incidents. The Investigating Officer did not produce any evidence to show that the subsequent statements of these witnesses were the correct statements. If I look into the subsequent statements in the backdrop of the above‑mentioned developments taken place during court proceedings, I find it more probable that the subsequent statements, based on the rare kind of same coincidence taking place with four different persons, were artificially prepared with the sole objective to cover up the lacuna and the mindless action of chargesheeting accused persons in this case., Moreover, the Investigating Officers of this case ignored the observations recorded in the rukka and in the first statement of all the complainants, that there were mobs raising slogans in favour of and against CAA/NRC. This fact is very important to realise that they were two different and rival mobs. The Investigating Officers remained silent over the question as to which particular incident was caused by which particular mob. If several incidents took place in and around Victoria Public School at the hands of a riotous mob, the job of the Investigating Officer was to ascertain the composition of such mob during each of those incidents. If a person ceases to be a member of an unlawful assembly, then he cannot be made responsible for any act done by that mob in his absence. Section 149 requires conscious presence of a person in the unlawful assembly at the time of commission of the alleged offence, in order to make that person vicariously liable for such offence. Therefore, presence of accused persons in the riotous mob during each of the incidents probed in this case was required to be established., I am conscious of the law that at this stage of consideration on charge, I am not supposed to go into the probative value of evidence produced by the prosecution. However, as already pointed out herein above, one set of relied upon evidence of the prosecution contradicts the subsequent set of evidence. Therefore, even if I look into evidence of illegally clubbed complaints in this case, I find that there is no other evidence to confirm correctness and authenticity of the subsequently procured evidence, which were obtained without following the procedures of law under section 173(8) of the Criminal Procedure Code, and thus the evidence placed on the record, besides being silent in respect of vital questions raised herein above, contradicts each other. In these circumstances, instead of having a grave suspicion against the accused persons for their involvement in the alleged incidents as reported by four complainants as well as for their involvement in the incidents observed by Assistant Sub‑Inspector Surender Pal in the rukka, I have suspicion that the Investigating Officer manipulated the evidence in the case, without actually investigating the reported incidents properly., Therefore, all the accused persons are discharged in this case. It is worth mentioning that this order of discharge is being passed on account of realizing that the reported incidents were not properly and completely investigated and that the chargesheets were filed in a predetermined, mechanical and erroneous manner, with subsequent actions only to cover up the initial wrong actions. Hence, the matter is referred back to the police department to assess the investigation done in this case and to take further action in conformity with law, to bring the above mentioned complaints to a legal and logical end. Ordered accordingly. Announced in open court by Pulastya Pramachala today on 16 August 2023 Assistant Sessions Judge‑03 (North East). This order contains 23 pages. Karkardooma Courts, Delhi.
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Civil Writ Jurisdiction Case No. 9745 of 2015 Anchal Dwivedi, Petitioner(s) versus 1. The State of Bihar through the Chief Secretary, Bihar, Patna 2. The Principal Secretary, General Administration Department, Government of Bihar, Patna 3. Additional Secretary, General Administration Department, Government of Bihar, Patna 4. Patna High Court through its Registrar General 5. Registrar General, Patna High Court, Patna., Appearance: For the Petitioner(s): Mr. Jitendra Singh, Senior Advocate; Mr. Bajarangi Lal, Advocate; Mr. Yash Singh, Advocate; Mr. Ishan Singh, Advocate. For the State: Mr. A. B. Sinha, Government Advocate; Ms. Kalpana, Advocate. For the Patna High Court: Mr. Sanjeev Kumar, Advocate. Date: 27-09-2023., The writ petition is filed by a Civil Judge (Junior Division) whose judicial career was abruptly ended by the decision of the Standing Committee of the Patna High Court not to declare his probation. The petitioner was discharged from service with effect from 19-05-2014 by a termination of probation issued vide Notification dated 27-06-2014, which the respondents assert to be a termination simplicitor, neither punitive nor stigmatic., The petitioner pleads that he had a more than successful stint with continued appreciative assessments and that the entire problem arose due to enmity harboured by the District Judge, which led to a number of instigated complaints being raised against him. Despite this, termination occurred in an illegal and arbitrary manner., Shri Jitendra Singh, learned Senior Counsel, instructed by Shri Bajarangi Lal, learned counsel for the petitioner, argued for setting aside the termination order and reinstating the petitioner in service with full consequential benefits. Learned Senior Counsel took us through the records, which indicate a complaint raised against the petitioner that resulted in a warning to be careful in behaviour and to maintain judicial aloofness. The petitioner also had a consistent record and his performance was assessed as outstanding. Despite all this, on a recommendation for declaration of probation placed by the District Judge before the Standing Committee, the recommendation was brushed aside and the officer was terminated on a refusal to declare his probation, which is untenable., The petitioner had spent considerable time in the judicial service when there was no question raised against his judicial acumen or performance. A disciplinary inquiry was initiated against him but ended in his exoneration. The Inquiry Officer found the petitioner not guilty of the charges and the Standing Committee fully agreed. The exoneration was also on account of the witness who had raised the complaint turning turtle in the inquiry proceedings and admitted the instigation by the District Judge. Having been exonerated, the Standing Committee had no further material to terminate him. Reliance is placed on Transcore v. Union of India & Anr., (2008) 1 SCC 125, to emphasize the doctrine of election. The Patna High Court, having elected to initiate a domestic inquiry that ended in exoneration, should not rely on such disciplinary inquiry or the complaint leading to the inquiry to terminate the services of the petitioner by refusing to declare his probation., Reliance is also placed on M. S. Bindra v. Union of India & Ors., (1998) 7 SCC 310, to urge a judicial review of the order of termination on the grounds of no evidence and conclusions not reasonably borne out from the records. This vitiates the administrative action and even a termination simplicitor should be supported by an objective satisfaction about the incapacity or ineligibility of the employee to be continued in service, at least borne out from the records., Reliance is placed on Abhay Jain v. The High Court of Judicature for Rajasthan & Anr. in Civil Appeal No. 2029 of 2022 decided on 15-03-2022. From the said decision, the facts and law declared are specifically read out to urge that the present writ petition stands on an identical footing. The petitioner is entitled to be reinstated in service with full benefits., We have also heard Shri A. B. Sinha, learned Government Advocate for the State and Shri Sanjeev Kumar, learned Standing Counsel for the Patna High Court., It is argued by the Patna High Court that the termination is not punitive nor does it cast any stigma on the petitioner and it is a termination simplicitor for the reason that the Standing Committee concluded that the petitioner's performance is not satisfactory and it would not be in the interest of judicial administration to continue him in service. It is pointed out that merely because a disciplinary inquiry was initiated and the delinquent officer was exonerated, it would not enable his continuance in service if his antecedents are otherwise found unsatisfactory. There were a number of complaints raised against the officer and a warning issued against him. In the totality of the circumstances the petitioner has been found not entitled to be continued as a judicial officer. The learned counsel also placed reliance on Patna High Court v. Pandey Madan Mohan Prasad Sinha & Ors., (1997) 10 SCC 409. It was argued that the termination of services of a probationer can only be questioned on the ground that it was arbitrary or punitive and if there is a finding of unsuitability to be continued in judicial service, there is no question of principles of natural justice being attracted. Frequent complaints against a judicial officer can be a consideration in terminating the services and it would not be vitiated if it is not found to be punitive or stigmatic., Considering the nature of the case and the assertion of the Patna High Court that the termination simplicitor is without any stigma attached to the officer and not in the nature of a penalty, we were persuaded to call for the service records of the judicial officer. We were also compelled to do so from the counter affidavit of the Patna High Court itself, since the service dossier produced as Annexure-A indicates the officer had a consistent outstanding grade in all the quarters of five years of his service, prior to his termination, barring one poor remark in the second quarter of the first such five‑year period., The petitioner was appointed provisionally as a Civil Judge (Junior Division) after qualifying in the 26th Judicial Services Competitive Examination. He was posted at Sasaram (Rohtas) as a Civil Judge (Junior Division) on 22-12-2007 and joined as a Probationer Civil Judge (Junior Division) on 04-01-2008. He was then posted as 1st Class Judicial Magistrate at Bikramganj (Rohtas) in 2009, from which period he had been graded outstanding. On 27-06-2011, he was transferred to Saran at Chapra and within two months the problems commenced, according to him, since the District Judge was inimical towards him., As available from the records, while the petitioner was posted as 1st Class Judicial Magistrate at Bikramganj, some advocates raised complaints against him with respect to the consideration of cases in his court. The complaint was forwarded by the District Judge by communication dated 09-06-2011, based on which an explanation was called for and the Standing Committee, at its meeting on 13-09-2011, directed the officer to be careful in his behaviour and to maintain judicial aloofness. Another allegation petition was forwarded by the District Judge through his communication dated 19-08-2011. Of the three allegations raised, the first relating to a complaint case and the second regarding dismissal of another case were found not sustainable from the records. The third allegation concerned the officer granting permission to construct a temple in the court premises and collecting subscription for the same from litigants. The Standing Committee, at its meeting on 17-01-2012, directed the files regarding the third allegation to be placed before it. In its meeting dated 03-04-2012, the Standing Committee directed a disciplinary proceeding to be initiated against the officer in respect of the allegation of giving permission to construct a temple within the Civil Court precincts and collecting contribution for the temple. The inquiry report is produced as Annexure-B., A perusal of the inquiry report indicates that the Bench Clerk of the delinquent employee supported the allegation regarding collection of subscription and deposed that the receipts were given to him by the delinquent officer and, on his orders, receipts were issued to the litigants after initialing the receipts and the money was kept by the officer. In cross‑examination, he stated that the allegation arose after the transfer of the delinquent officer. The Office Clerk, examined as witness No. 2, also supported the allegation of collection of subscription and deposed in the same manner as witness No. 1. Witness No. 3, another court employee, stated that he had written the same on instructions of witnesses No. 1 and 2. In cross‑examination, he deposed that the District Judge had withdrawn the bodyguard of the Presiding Officer and that Bikramganj was a sensitive area and the officer’s quarters were situated at a lonely place. He further stated that the temple was constructed prior to the joining of the delinquent officer., Interestingly, the complainant, Jitendera Kumar Singh, examined as witness No. 4, though admitted to the complaint, in cross‑examination denied having any receipt book to the delinquent officer for collection of subscription, contrary to his assertion in the complaint. He stated that he had made the complaint on the instigation of the District Judge, Rohtas, before whom a bail application filed by him was pending. He also deposed that the temple was being constructed before the delinquent officer was posted in the station and that the District Judge himself was visiting the premises of the court at Bikramganj to supervise the temple construction. When the people of the locality protested to the construction and other communities also raised demands for constructing their religious shrines inside the premises, the District Judge got the complaint filed by the complainant. The Inquiry Officer found that there was nothing established to find the delinquent officer having initiated the construction in the premises. The Standing Committee, having gone through the inquiry report, exonerated the officer from the charges., We cannot but observe that two witnesses spoke about the subscription having been collected, while another witness denied the same; all were court staff. We reiterate that the Standing Committee, having gone through the inquiry report, exonerated the officer. Records also show other complaints forwarded to the High Court, which were consigned by the Inspecting Judge. While matters stood thus, the Registry put up a note before the Standing Committee relating to the confirmation of the officer, a Munsif (Civil Judge) (Junior Division). The petitioner, who was continuing as a Judicial Magistrate‑cum‑Additional Munsif, Chapra, an officer of the 26th Batch of Bihar Judicial Service, had passed the departmental examination as well as completed more than two years of service. He had been granted first increment vide communication dated 18-03-2014. A fitness report of the officer from the concerned District and Sessions Judge, different from the one at Rohtas, was also placed before the Standing Committee. The reports of the Vigilance Cell, Legal Cell, Allegation Table and Observation Table were also placed before the Standing Committee. No departmental proceeding was pending against the officer and no allegation matter or observation was pending. The Registrar General did not raise any adverse remarks and the report of the District Judge emphasized that the officer is fit to be confirmed. The Standing Committee, at its meeting on 29-04-2014, recommended that the petitioner be terminated and he be discharged from service. The recommendation of the Committee was approved by the Full Court at its meeting on 14-05-2014, consequent to which the termination order was issued., We first look at the application of the doctrine of election insofar as the aspect of refusal to confirm the probation of an officer whose service was found unsatisfactory, based on a charge of misconduct in which he was exonerated in a disciplinary proceeding, the findings of which were accepted by the disciplinary authority. It is trite that in passing a termination simplicitor, even if there is a complaint of misconduct, the appointing authority could decide on such termination simplicitor without initiating an inquiry proceeding against the officer, based on the complaint raised, but without the termination order being stigmatic or punitive. The satisfaction of the appointing authority that the officer is not suitable for continuation in employment or that his probation is not entitled to be declared is an objective satisfaction which should be justified from the records. The mere fact that it is on the basis of an allegation that the probation was not declared does not vitiate the consequent termination, if the order refusing to declare the probation does not refer to such allegation. The order is then treated as a termination simplicitor, which cannot be complained of and refuge taken under Article 311(2) of the Constitution of India; especially a probationer who has no vested right to be continued, unless the appointing authority is satisfied of his eligibility to be confirmed in such post, substantively. There is also no hard and fast rule that once an allegation is levelled as a charge of misconduct and an inquiry is contemplated or initiated, a termination simplicitor cannot be made without taking the inquiry to its logical conclusion, if again the termination is simplicitor as above mentioned., In Transcore (supra) the learned judges specifically emphasized three elements of election, namely (i) existence of two or more remedies, (ii) inconsistencies between such remedies and (iii) a choice of one of them. The remedy of proceeding for disciplinary inquiry, by itself, cannot be termed as inconsistent with or repugnant to the remedy of termination simplicitor. But when it reaches the point of conclusion with an exoneration of the delinquent, then a further termination, based on the very same allegation on which he was exonerated, becomes inconsistent and the earlier choice would stand against the employer resorting to termination simplicitor on the same allegation., However, there could be other complaints on which such a termination could be effected or a consistent poor assessment could also lead to it. In the present case, we find that there was no such complaint existing or placed before the Standing Committee that would have enabled the Committee to come to such a finding. We have also noticed the service dossier of the officer produced in the counter affidavit of the Patna High Court as Annexure-A, which has consistently graded him outstanding for four and a half years, all the eighteen quarters, just prior to his termination., Pandey Madan Mohan Prasad Sinha (supra) was a case in which the officer was assessed consistently with adverse remarks in the successive years from 1976‑77 to 1981‑82. The Inspecting Judge had also remarked about the conduct and antecedents of the officer, reporting them as very undesirable and unbecoming of a judicial officer. There were also complaints touching upon his integrity, serious complaints regarding his character and morality, allegations of being prone to drunken behaviour and continued interaction with different persons of the locality by playing cards with them. The adverse remarks of 1976‑77 and 1979‑80 were communicated to the officer prior to the decision of the High Court to terminate him. The adverse remarks of the other years were communicated later to the termination, which was found to be not necessary and it was held that this should not vitiate the action taken of termination of services on the ground that the officer was not fit for confirmation in the post of Munsiff. The learned judges elucidated the well‑settled law that a probationer has no right to hold a post and he cannot be equated to an employee substantively appointed to a post, whose termination from services would require compliance of the provisions under Article 311(2) of the Constitution. There is also no right to be heard before an order terminating the services is passed., However, we are unable to find any parallel to the present case, insofar as the petitioner herein having been graded outstanding in all the four and a half years just prior to the termination and it was consistent in all the quarters. There was also no complaint or adverse remark existing against him. There was only a warning, as noticed earlier, evidenced by Annexure‑12, after which much water had flowed under the bridge. The District Judge, under whose control the petitioner was working, had also recommended him as fit for confirmation. A disciplinary action initiated had ended in exoneration. There is nothing available on the records to sustain the order of the Standing Committee., M. S. Bindra (supra) was a case in which an officer, decorated for his dedication and perseverance in duty, was suddenly labelled as of unreliable integrity and unfit to be entrusted with any position of responsibility in the Government service, on which finding he was compulsorily retired. There were three specific instances recorded by the Screening Committee against the officer while considering his continuance in the Revenue Department. It was found that none of the instances relied upon by the Screening Committee revealed any objectionable conduct on the part of the officer and, on the contrary, it only furthered the reputation he maintained in the organization. The Hon’ble Supreme Court relied on Union of India v. Col. J. N. Sinha, (1970) 2 SCC 458, wherein it was declared that if the appropriate authority forms the requisite opinion bona fide, its opinion cannot be challenged before the courts though it is open to contend that the requisite opinion has not been formed or is based on collateral grounds and that it is an arbitrary decision. A three‑Judge Bench in Baikuntha Nath Das v. Chief District Medical Officer, (1992) 2 SCC 299, following the above dictum, while considering a case of compulsory retirement, laid out five principles, of which (iii) is extracted hereinbelow: (iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) based on no evidence or (c) arbitrary in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be a perverse order., In M. S. Bindra (supra), it was held in paragraph 11 that judicial scrutiny of any order imposing premature compulsory retirement is permissible if the order is either arbitrary or mala fide or if it is based on no evidence. The observation that principles of natural justice have no place in the context of compulsory retirement does not mean that the version of the delinquent officer is unnecessary to reach the correct conclusion; the same cannot be obviated on the assumption that other materials alone need be looked into. In that case, though the appellant had endeavoured to show mala fides on one of the members of the Screening Committee, such contention was repelled., In the present case also, the records reveal an allegation against the District Judge, who had forwarded the complaint to the Patna High Court. We cannot but observe that in the inquiry, the complainant himself raised such an allegation against the District Judge and admitted that the complaint had been instigated by the District Judge. Both witnesses No. 1 and 2, who deposed on the subscriptions being taken by the delinquent officer, were serving under the particular District Judge even at the time of the inquiry. Despite this, the Standing Committee, after perusal of the inquiry report, found the officer entitled for exoneration from the allegations and the allegation of enmity and malice raised against the District Judge need not be gone into. It is trite that the disciplinary authority would have the capacity to go into the evidence led at the inquiry and find a delinquent officer guilty of the misconduct alleged; even if the inquiry officer exonerates the delinquent. The only requirement would be that reasons for deviating from the findings in the inquiry report would have to be stated and the delinquent officer given an opportunity to explain and represent against the reasons so stated. In the present case, no such attempt was made by the Standing Committee., Having perused the records, we find absolutely no material on which the Standing Committee could have denied confirmation of the petitioner's probation, resulting in termination of his services. A termination simplicitor, if it is not punitive or does not cast any stigma, cannot be challenged by a probationer, especially since he has no right to be continued in the post. A disciplinary inquiry on the allegations raised against him would not also be necessary but the question is whether such termination can be made on the ipse dixit of the appointing/disciplinary authority. When allegations are raised against a probationer, the appointing authority could either conduct a disciplinary inquiry or, based on the allegations, even without an explanation called for, could terminate the services of an employee without confirming his probation. But there should be some material available in the records for the appointing authority to come to the objective satisfaction that it would not be in the interest of the administration to continue the employee in service; here, in judicial service. The termination itself being termed as simplicitor, neither punitive nor stigmatic, is not to say that the decision should not be based on some relevant material, either of an allegation or of deficient performance. When the decision to terminate is challenged, the appointing authority must be able to satisfy the Court that it was on reasonable grounds the termination was ordered and if there are sufficient contemporaneous material in the records, then the Courts would not look into the advisability of a termination as such; since then the Court would be substituting its opinion for that of the employer, which is impermissible. There is total absence of such material in the present case., We have to also look at Abhay Jain (supra), which was heavily relied on by the learned Senior Counsel for the petitioner. In that case, the dismissed employee was a judicial officer who entered the service in 2013 and was discharged in 2016. The ground for discharge was a bail granted by the appellant in a case under the Prevention of Corruption Act, 1988. The allegation was that the officer did not wait for sanction of prosecution and that a High Court order declining bail to the same accused was ignored. The officer, after adjournment for production of sanction, eventually granted bail to one of the appellants, especially noticing that a co‑accused was granted bail by the High Court. It was alleged that the grant of bail by the District Judge was after the dismissal of the bail application by the High Court; which was asserted, in defence, to have not been produced before the District Judge. Though an inquiry was initiated, while it was pending the officer was discharged on the finding of the Full Court that the appellant's services were unsatisfactory during the probation. The inquiry was closed, subject, however, to the right to reopen the same., The Hon’ble Supreme Court in Abhay Jain (supra) refused to accept the contention of the Patna High Court that the discharge of the appellant was a discharge simplicitor and not violative of Article 311(2). It found that the Patna High Court had failed to provide reasoning as to how the allegation of misconduct pertaining to the bail order was not the foundation of the discharge, especially when an inquiry was initiated and was pending at the time of discharge. The Supreme Court also referred to the material placed before the Higher Judicial Committee, which recommended the discharge of the appellant, wherein there was total absence of adverse remarks against the appellant except in relation to the grant of bail. The appellant’s work and conduct were consistently assessed as good and his integrity was never doubted. The ACR for 2013 assessed him as very good and specifically mentioned that his integrity was never doubted, which was followed in 2014 (Part I) also. In the second part of 2014 he was assessed as good, with a remark to improve the judicial work, which was also found to be based on the bail order issued. The Patna High Court relied on the ACR for 2015 wherein the Administrative Judge recorded that integrity of the officer is doubtful. In the overall assessment, the officer was rated average; this entry was after the discharge of the officer., The Hon’ble Supreme Court refused to accept that it was based on these later comments that the discharge was carried out; since they were made after the appellant was discharged from service. It was categorically found that there was nothing adverse in the officer’s record and the entire recommendation of discharge by the Higher Judicial Committee was based upon the passing of the bail order for which an inquiry was initiated, but not continued. On the grant of bail, the records revealed that the prosecution was given sufficient time to bring the sanction on record, which was not done. The Investigating Officer only indicated that the file had been submitted to the State Government for sanction. The denial of bail to the accused by the High Court was also not placed on record before the Court. Moreover, the co‑accused was granted bail by the High Court, which was also a relevant consideration in the grant made by the officer. The grant of bail upon which the allegations were raised was found not faulty as it was permissible under Section 439 of the Code of Criminal Procedure, even if the request for bail was declined by the High Court. The officer was reinstated with all consequential benefits, including continuity of service and seniority, but was found to be entitled to only 50 % wages., We cannot, but notice that in Abhay Jain (supra) there was an allegation of grant of bail pending against the officer, based on which the discharge was made. In the present case, there was absolutely no allegation or complaint pending against him and there was also no disciplinary inquiry pending. The only adverse remark against him was of the year 2011 and the inquiry initiated on charges of misconduct concluded with the exoneration of the petitioner. There were seven other complaints against the officer, none of which were proceeded with. The officer was consistently graded outstanding in his ACR in the eighteen quarters immediately prior to his termination., Having gone through the records of the case and also the records placed before us by the Patna High Court, we are of the opinion that there was absolutely no material available to the Standing Committee to terminate the services of the officer, refusing the probation to be declared so as to confirm the petitioner in the post to which he was appointed.
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We set aside the order passed and direct the petitioner to be reinstated with all consequential benefits, seniority and continuance in service, however, the back wages being limited to 50%.
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Present: Hon'ble Mr. Justice Aniruddha Roy. Writ Petition (Arising) No. 28149 of 2015. Interim Application No. CAN 01 of 2019 (Old No. CAN 12362 of 2019). Sri Sukdeb Mandal Union of India & Ors. For the petitioner: Mr. Achin Kumar Majumder, Advocate. For the respondents: Mr. Sourav Mondal, Advocate. Reserved on: 05‑08‑2022. Judgment on: 06‑09‑2022., On 23 February 2011 an employment notice was published by the third respondent inviting applications from the public at large for both male and female candidates for the post of Constable in all the Zonal Railways across the country. Pursuant to the notice, the petitioner applied in March 2011 for the post of Constable., On 31 May 2011 a charge‑sheet was submitted by the Chakda Police Station before the Learned Magistrate, Kalyani, District Nadia, under Sections 341, 323, 506 and 34 of the Indian Penal Code against the petitioner and his family members. The petitioner submitted his attestation form on 2 June 2014. On 18 June 2015 the petitioner was declared medically fit for the initial Railway Protection Force (RPF) training course at N.F. Railways, Domohani and was selected for regular absorption in the post of Constable, RPF, Eastern Railway on 26 June 2015. On 14 July 2015 the petitioner was directed to appear at the office of the third respondent, which he did. By an order dated 20 January 2015 passed by the Jurisdictional Magistrate, the petitioner was acquitted under Section 320 of the Criminal Procedure Code and the relevant bail bond was discharged (Annexure P‑2 to the writ petition)., On 13 July 2015 the petitioner was served a notice of termination of his service, alleging that he had not disclosed the pending police case in the attestation form, which was deemed a false declaration and suppression of material fact, leading to termination of his service (Annexure P‑1 to the writ petition). The petitioner had completed his initial nine‑month training course, qualified successfully and became eligible for regular appointment, and reported to the RPF Headquarters, Eastern Railway on 26 June 2015 to receive the said appointment., Challenging the termination order dated 13 July 2015, the petitioner moved a previous writ petition, W.P. No. 23959 (W) of 2015. By an order dated 16 September 2015, a Coordinate Bench directed the second respondent to decide the petitioner’s case in accordance with law within a time‑frame., Pursuant to the direction dated 16 September 2015, the second respondent disposed of the petitioner’s representation dated 31 July 2015 and rejected the petitioner’s contention by its impugned order dated 14 October 2015 (Annexure P‑6 to the writ petition)., Assailing, inter alia, the decision of respondent No. 2 dated 14 October 2015, the instant writ petition was filed., The parties filed and exchanged their respective affidavits., Mr. Achin Kumar Majumder, Learned Counsel for the petitioner, submitted that, due to a bona‑fide mistake, the petitioner omitted the initiation and pendency of the criminal case in the attestation form. He alleged that a neighbour, Ranjit Biswas, lodged a false complaint against all family members of the petitioner out of jealousy. The jurisdictional police authority did not entertain the complaint; however, the neighbour applied before the Jurisdictional Magistrate at Kalyani and, on the basis of the Magistrate’s direction, a criminal case was initiated by the jurisdictional police station under Sections 341, 232, 506 and 34 of the Indian Penal Code., Referring to Annexure P‑2, which is the order dated 20 January 2015 passed by the Jurisdictional Magistrate, counsel submitted that all the accused family members, including the petitioner, were acquitted at the time of examination of the de‑facto complainant. The alleged injured party stated that they did not wish to proceed with the case as the dispute had been resolved, and if all the accused were acquitted they would have no objection. On the basis of a written undertaking submitted before the Learned Jurisdictional Magistrate for non‑prosecution, the Jurisdictional Criminal Court held that the offence should be compounded and all the accused, including the petitioner, were acquitted under Section 320 of the Criminal Procedure Code. The relevant bail bond was also discharged., Counsel submitted that a similarly placed Constable, Vijendar Singh Goutam, undergoing training at RPSF Training Centre, Gorakhpur, was discharged from training for suppression of the fact that a criminal case was pending and not disclosed in the attestation form. After his acquittal, he was allowed to complete the training course. The petitioner relied on Annexure P‑3 to support this submission., Counsel further submitted that the offences for which the petitioner was charged were trivial in nature and bore no nexus with the petitioner; they arose from neighbourhood enmity. The dismissal of the petitioner’s service amounted to a violation of Articles 14 and 19(1)(g) of the Constitution of India. The alleged suppression or misrepresentation should be treated as a mere omission. In support, counsel relied on the following decisions: (a) WPA No. 4683 of 2021, Sri Bibrata Biswas v. Union of India & Ors.; (b) FMA 888 of 2021 with IA No. CAN 01 of 2021, Union of India & Ors. v. Bibrata Biswas; (c) Mohammed Imran v. State of Maharashtra & Ors., reported at AIR 2018 Supreme Court 4895; (d) Civil Appeal Nos. 3574 of 2022, Special Leave Petition (Civil) No. 6009 of 2016, Pawan Kumar v. Union of India & Ors.; and (e) Avtar Singh v. Union of India & Ors., reported at AIR 2016 Supreme Court 3598., Counsel submitted that the termination of the petitioner’s service should be set aside, the impugned order dated 8 October 2015 passed by the second respondent should also be set aside, and the petitioner should be reinstated to his post of Constable, free from any stigma., Mr. Sourav Mondal, appearing for the respondents, submitted that the petitioner had applied for and was absorbed in the post of Railway Constable, a strictly disciplined force. The suppression of the pending criminal case while filling the attestation form amounted to furnishing a false declaration and misrepresentation. The attestation form specifically required a declaration regarding criminal antecedents. The petitioner deliberately suppressed and misrepresented the information, which relates to moral turpitude in a highly disciplined police force. The discharge decision dated 13 July 2015 clearly mentioned the reasons for dismissal. Since the candidate was found to have an adverse report on his criminal antecedents and character, he could not be appointed in the RPF or RPSF. False declaration is an offence and would lead to disqualification. The attestation form also stipulated that furnishing false information or suppressing any factual information would be a disqualification and could render the candidate unfit for government employment. If such false information came to the employer’s notice at any time during service, the service would be liable to be terminated., Referring to Rule 52 of the Railway Protection Force Rules, 1987 (the RPF Rules), counsel submitted that the Rules provide that as soon as a recruit is selected but before formal appointment, his character and antecedents must be verified in accordance with the procedure prescribed by the Central Government from time to time. If, after such verification, the recruit is found not suitable for the force, he should not be appointed., Referring to Rule 67.2 of the RPF Rules, counsel submitted that a direct recruit selected for appointment as an enrolled member, until formally appointed, is liable to be discharged at any stage if the Chief Security Commissioner, for reasons recorded in writing, deems it fit to do so in the interest of the force. The order of dismissal recorded the reasons for dismissal and was passed in compliance with Rule 212.1 of the RPF Rules; there is no provision for appeal against the order of discharge., Counsel for the respondents submitted that the offences for which the charge was framed against the petitioner were serious in nature. For appointment as a constable in a disciplined Railway Police Force, a candidate must have a clean character without any criminal antecedent. The petitioner deliberately misrepresented facts and suppressed the material fact of the pending criminal case while filling the attestation form, thereby furnishing a deliberate false representation to the employer. Such unethical conduct in a disciplined Railway Police Force cannot be indulged and warrants discharge. In support, counsel relied on: (a) W.P. No. 185552 (W) of 2004, Dinesh Paswan v. Union of India & Ors.; and (b) Civil Appeal No. 6110 of 2008, SLP (C) No. 23875 of 2005, Union of India & Ors. v. Sukhen Chandra Das., Counsel submitted that the writ petition was misconceived, frivolous and not tenable in law and should be dismissed., After considering the rival contentions and perusing the material on record, this Court finds that the facts stated above are not disputed. The issue for consideration is whether, by not disclosing the criminal antecedents and suppressing them while filling the attestation form, the petitioner committed an unpardonable wrong justifying dismissal, or whether, considering the nature of the criminal charges, the omission should be treated as a mere omission and the petitioner’s employment reinstated., Although the respondents relied on the relevant RPF Rules for dismissal, several precedents have already been pronounced on the issue. The Division Bench of this Court in Bibrata Biswas observed that verification of character and antecedents is intended to ensure suitability for the post. Mere involvement in a petty case does not render a person unsuitable. The Court also referred to State of M.P. v. Ramashanker Raghuvanshi (1983) 2 SCC 145, noting that political activities, unless subversive, should not affect suitability for government service. The Court warned against introducing McCarthyism into India and emphasized that youthful political activism should not be a bar to public employment., The Supreme Court of India, in Avtar Singh v. Union of India (2016) 8 SCC 471, held that information given to the employer regarding conviction, acquittal or pendency of a criminal case must be true and that suppression or false mention should not be automatically fatal. While passing termination orders, the employer may consider special circumstances. The employer must also take into account the applicable government orders, instructions and rules at the time of decision., The Supreme Court further observed that if the suppressed fact relates to a trivial offence that would not render the incumbent unfit, the employer may, at its discretion, condone the lapse. Where the offence is not trivial, the employer may cancel candidature or terminate services. If an acquittal has been recorded in a case involving moral turpitude or a serious offence, the employer may consider all relevant facts before deciding on continuance of employment., The Court noted that a minor’s maturity cannot be equated with that of an adult; errors committed as a minor should not be penalised for a lifetime. The Court relied on Mohammed Imran v. State of Maharashtra (AIR 2018 Supreme Court 4895), observing that an acquitted appellant with an otherwise clean record should not be deemed unfit for appointment. The Court reiterated the principle from Avtar Singh that empanelment does not create a right to appointment, nor does it permit arbitrary denial after empanelment., The Supreme Court, in Mohammed Imran (supra), observed that employment opportunities are scarce and that while credibility is essential, a mechanical denial based on moral turpitude is inappropriate, especially when the offence is trivial or the candidate has reformed. The Court emphasized that each case must be assessed on its facts., The Supreme Court, in Pawan Kumar (supra), held that mere suppression of material or false information does not automatically justify discharge; the employer must consider all relevant facts, the nature of the offence, and the applicable service rules before deciding on termination or cancellation of candidature., The Court also referred to M. Bhaskaran (Union of India v. M. Bhaskaran, 1995 Supp (4) SCC 100) stating that fraud and misrepresentation vitiate an appointment, and an employee protected by Article 311(2) of the Constitution is entitled to a due inquiry before termination., In view of the foregoing discussion and the fact that the criminal case against the petitioner was of trivial nature, the order of discharge dated 24 April 2015 is not sustainable. Consequently, the judgment of the Division Bench of the High Court of Delhi does not hold good and deserves to be set aside.
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The case of obtaining appointment on the basis of forged documents has the effect on very eligibility of incumbent for the job in question, however, verification of antecedents is different aspect as to his fitness otherwise for the post in question. The fraudulently obtained appointment orders are voidable at the option of employer, however, question has to be determined in the light of the discussion made in this order on impact of suppression or submission of false information., No doubt about it that verification of character and antecedents is one of the important criteria to assess suitability and it is open to employer to adjudge antecedents of the incumbent, but ultimate action should be based upon objective criteria on due consideration of all relevant aspects., Suppression of material information presupposes that what is suppressed that matters not every technical or trivial matter. The employer has to act on due consideration of rules/instructions, if any, in exercise of powers in order to cancel candidature or for terminating the services of employee. Though a person who has suppressed the material information cannot claim unfettered right for appointment or continuity in service but he has a right not to be dealt with arbitrarily and exercise of power has to be in reasonable manner with objectivity having due regard to facts of cases., What yardstick is to be applied has to depend upon the nature of post, higher post would involve more rigorous criteria for all services, not only to uniformed service. For lower posts which are not sensitive, nature of duties, impact of suppression on suitability has to be considered by authorities concerned considering post/nature of duties/services and power has to be exercised on due consideration of various aspects., To consider the issue raised in this writ petition, it is necessary to assess the charges inflicted upon the petitioner who was an accused in the criminal case. The provisions of the Indian Penal Code, 1860 (for short, Indian Penal Code) under which the petitioner was accused were available from the order of acquittal dated January 20, 2015 passed by the Jurisdictional Magistrate. The charges were under Sections 341, 323, 506 and 34 of the Indian Penal Code. The provisions are quoted herein below:, Acts done by several persons in furtherance of common intention .- When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone., Punishment for voluntarily causing hurt. - whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both. Classification of Offense.- The offense under this section is non cognizable, bailable, compoundable and triable by any Magistrate., Punishment for wrongful restraint. - Whoever wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both. Classification of Offense. - The offense under this section is cognizable, bailable, compoundable and triable by any Magistrate., Punishment for criminal intimidation. - Whoever commits, the offense of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc. - and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offense punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. Classification of Offense. - The offense under this section for criminal intimidation is non-cognizable, bailable, compoundable and triable by any Magistrate. If threat be to cause death or grievous hurt, etc., it is triable by Magistrate of the first class., On a meaningful reading of the said provisions under the Indian Penal Code, it appears that the offence and punishment for wrongful restraint, the punishment for voluntarily causing hurt are trivial in nature. The resultant effect of the said charges ultimately culminate into a punishment for criminal intimidation, at best threat to cause, inter alia, grievous hurt. Since all the family members along with the petitioner were inflicted with these charges, the charge was also leveled for acts done by several persons in furtherance of common intention. On a meaningful reading and harmonious construction of the relevant provisions referred to above of the Indian Penal Code, the High Court is of the considered opinion that the principal charges were under Sections 341 and 323 of the Indian Penal Code which were of trivial in nature without having any effect on the moral turpitude. By the said order dated January 20, 2015 passed by the Jurisdictional Magistrate, the petitioner along with other family members was acquitted under Section 320 of the Criminal Procedure Code, 1973. The relevant observations from the order of acquittal passed by the Jurisdictional Magistrate are quoted below:, Id. A.P.P is present. De-facto complainant is present and file a compromise petition praying for compounding of offences under Section 320 against all accused persons. Learned advocate for the de-facto complainants is present. Learned advocate for the accused persons are also present. De-facto complainant and the injured are examined on dock. Perused the materials on record and petitions. Heard both sides. Considered. On perusal of the materials on record it transpires that charge has been framed submitted under Sections 341, 323, 506 and 34 of the Indian Penal Code and all the sections are compoundable under Section 320 of the Criminal Procedure Code. At the time of examination the de-facto complainant and the injured said that they do not want to proceed with the case as all the alleged matters have been resolved between them and if all the accused are acquitted they have no objection. So the High Court is of the view that, the offense should be compounded on the above mentioned grounds. The Criminal Procedure Code and then are also discharged from their respective bail bonds. The case is disposed of on withdrawal. Note in this register., From the observations made by the Jurisdictional Magistrate while acquitting the petitioner, it was evident that the de facto complainant withdrew the criminal case and specific submission was made that if the accused were to be acquitted there would be no objection on their part. The petitioner was accordingly acquitted on January 20, 2015 after about six months from submission of his Attestation Form without disclosing his criminal antecedents and/or denial thereof. In the facts of this case, it was true that when the Attestation Form was filled up and submitted by the petitioner on June 02, 2014 the charge sheet was submitted prior thereto on May 31, 2011 and the acquittal of the petitioner took place on January 20, 2015 subsequent to the said Attestation Form being filled up by the petitioner. It was also a fact that the de facto complainant withdrew its criminal case and charges against the petitioner as would be evident from the said order of acquittal. Upon assessment of the nature of charges leveled against the petitioner, it appeared to the High Court that they were trivial in nature and without any effect on the moral turpitude of the petitioner. The offense alleged to have been committed by the petitioner were petty in nature at a young age and not a serious or heinous one. Moreover, the de facto complainant since had withdrawn the criminal case against the petitioner, the acquittal resulted. The nature of the charges being petty and trivial and after withdrawal of the same by the de facto complainant, the moral turpitude of the petitioner could not be questioned in the facts of this case. Such fact should have been considered by the employer in using its discretion while dismissing the petitioner from his employment., As observed by the Hon'ble Supreme Court in the matter of: Md. Imran (supra), no reasonable person on the basis of materials produced before the High Court, in the facts of this case also, can come to a conclusion that antecedents and character of the petitioner was such that he could be declared unfit to be appointed as a Constable in the Railway Police Force., Employment opportunity is a scarce commodity nowadays being circumscribed within limited vacancies. It is true that this may not suffice to invoke sympathy for grant of relief where the credential of a candidate raises any question regarding its suitability, irrespective of eligibility. But there could not be any mechanically or rhetorical incantation of moral turpitude, to deny appointment in a government service simplifier which would depend on the facts of a case. Every individual deserves an opportunity to improve itself, learn from the past and move ahead in life for self improvement. To make past conduct, irrespective of all considerations, an albatross around the neck of the candidate, may not always constitute justice. Much will depend on the fact situation of a case., The provisions under Rule 52 and Rule 67.2 of the Railway Police Force Rules as were referred to by the Learned Counsel for the respondents, the High Court is of the considered opinion that those Rules were brought into existence for fixing a complete guideline of the selection process including the dismissal of a recruit. The judicial precedence by virtue whereof the law on the subject had now been well settled, had also duly considered the said Railway Police Force Rules. There cannot be a quarrel with such Rules but upon due consideration, they were interpreted in several judicial precedents and the law had become settled thereupon as discussed above., The judgment of the Hon'ble Supreme Court in the matter of: Sukhen Chandra Das (supra) was delivered on October 15, 2008. The Hon'ble Supreme Court thereafter in 2016 rendered its judgment in the matter of: Avtar Singh (supra). The law laid down in the matter of: Avtar Singh (supra) is the law governing the field on the subject. In view of the said subsequent judicial pronouncement in the matter of: Avtar Singh (supra) which was rendered by a bench comprising of three Hon'ble Judges prevails over the judgment rendered in the matter of: Sukhen Chandra Das. In view of the said subsequent larger bench judgment in the matter of: Avtar Singh (supra) the law laid down in the matter of: Sukhen Chandra Das no more governs the field. Similarly the judgment of the Coordinate Bench of the High Court in the matter of: Dinesh Paswan shall not govern the field in view of the judgment of the larger bench of the Hon'ble Supreme Court in the matter of: Avtar Singh (supra)., In view of the foregoing reasons and discussions and on an overall assessment of the facts of this case, the High Court is of the considered view that the order of termination/discharge from service dated July 13, 2015 and the consequential order passed by Respondent No.2 dated October 14, 2015 being Annexure P-1 and P-6 respectively to the writ petition should be and are liable to be set aside and/or quashed and accordingly the said order of termination dated July 13, 2015 being Annexure P-1 to the writ petition and the order dated October 14, 2015 passed by Respondent No.2 being Annexure P-6 to the writ petition, stand set aside and quashed., The respondents are directed to reinstate the writ petitioner in service on the post for Constable at the stage from where he was dismissed/discharged from his employment forthwith and positively within a period of four weeks from the date of communication of the judgment and order, strictly in accordance with law., It is further made clear that the petitioner shall be entitled for the arrears of salary and/or the monetary benefit for the period during which he had not served the force due to his impugned discharge/dismissal and he shall be entitled for all benefits, including pay, seniority and all other consequential benefits etc., taking into account, as if the petitioner had not suffered any discharge/dismissal from his employment., In view of the above, the writ petition WPA 28149 of 2015 stands allowed., Consequently, CAN 12362 of 2019 stands disposed of.
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Delay condoned in Petition for Special Leave to Appeal (Civil) No. 3206. Leave granted., The appellant is aggrieved by the common impugned judgment and order dated 15th November 2017 passed by the National Consumer Disputes Redressal Commission, New Delhi, whereby the revision petitions filed by the sole appellant and the respondent were dismissed while upholding the common order dated 24th August 2007 by the Karnataka State Consumer Disputes Redressal Commission, Bangalore, that had confirmed the order dated 10th May 2006 passed by the District Consumer Forum., Vide order dated 10th May 2006 the District Forum had allowed the complaint filed by the appellant and directed the respondent Hospital to pay a sum of Rs 5,00,000 (Rupees Five Lakhs only) to the appellant as compensation along with Rs 5,000 (Rupees Five Thousand only) as litigation expenses. However, the complaint against opposite parties Nos. 2 to 4 and 6 namely, the doctors concerned, was dismissed., It is stated by learned counsel for the appellants that despite deficiency of services being proved against the respondent Hospital and the deceased complainant having claimed a sum of Rs 18,00,000 (Rupees Eighteen Lakhs only) as compensation with interest, the District Forum had suo motu arrived at a rough and ready figure of Rs 5,00,000 (Rupees Five Lakhs only) payable as compensation to the appellant without furnishing any reasons for arriving at the said figure., Learned counsel for the appellants draws the attention of the Supreme Court of India to the impugned judgment passed by the National Consumer Disputes Redressal Commission, in particular paragraphs 8 to 12 thereof, wherein it has been recorded that the deceased appellant had undergone a major surgery of the left lung on 31st October 2003 and post operation he developed hoarseness in his voice. An assurance was given by the operating surgeon that the hoarseness could be due to the operation that involved complete removal of the tumour along with the lymph nodes around the recurrent laryngeal nerve and that the patient could regain his voice within six to eight months with nebulisation and voice therapy, but the voice of the deceased appellant was not restored and remained hoarse throughout., Subsequently, the appellant took opinions from two other expert doctors in the field. Both doctors opined that there was subluxation of the left arytenoid process, which had happened due to wrong intubation during the anaesthesia procedure at the Hospital. On the aspect as to who performed the intubation during the induction of anaesthesia, it is not in dispute that surgery relating to cancer of the lung is a specialised surgery and needs a specialised anaesthetist. Though the Head of the Department of Anaesthesia was to administer anaesthesia to the deceased appellant, the same was administered by a doctor who was qualified but was a trainee anaesthetist in the Cardiac Anaesthesia Department., The National Consumer Disputes Redressal Commission frowned on the delegation of such a critical duty to a trainee anaesthetist and treated it as a breach of duty of care, observing that having regard to the material on record and the medical literature, the dislocation of the left arytenoid was on account of the trauma caused which led to paralysis of the vocal cord of the deceased appellant and that recurrent laryngeal nerve injury does not cause dislocation of the arytenoid. In other words, the paralysis of the left vocal cord of the deceased appellant was attributed to the faulty insertion of the double lumen tube in the course of administering anaesthesia to him for undergoing the surgery., Learned counsel appearing for the Hospital submits that the District Forum erred in discarding the evidence of the doctors who stated that there was nothing wrong in giving anaesthesia through a double lumen tube. He also seeks to question the reliance placed by the District Forum on the testimony of two expert doctors produced by the deceased appellant during the course of evidence. However, the records reveal that the Hospital did not object to the said expert doctors deposing in the case, nor did the Hospital file an application for an expert to be appointed by the District Forum for giving an opinion in the instant case., Mere reliance on medical literature would not be sufficient to exonerate the Hospital from its duty of ensuring that the Head of the Department, Anaesthesia ought to have inserted the double lumen tube. Instead, he was not available and the task was delegated to a trainee anaesthetist., Learned counsel for the appellants submits that the deceased was working as an Area Sales Manager in the private sector and was deprived of his promotions and his career nosedived due to the hoarseness of his voice. He submits that the appellant had virtually lost his voice and continued in the same post from the year 2003 onwards without promotion till he expired at the end of the year 2015. He was working on the same salary as was being paid to him at the time of his initial engagement, i.e., Rs 30,000 (Rupees Thirty Thousand only) per month., Given the aforesaid facts and circumstances of the case, we are of the opinion that the District Forum ought to have taken all the aforesaid aspects into consideration for arriving at a rightful compensation payable to the deceased which in the instant case has not been done., Having regard to the fact that the appellant expired during the pendency of the proceedings before the National Consumer Disputes Redressal Commission, no useful purpose would be served in remanding the matter back for reappreciation of the evidence to arrive at a just and fair compensation. Instead, it is deemed appropriate to direct that the compensation awarded by the District Forum be doubled from Rs 5,00,000 (Rupees Five Lakhs only) to Rs 10,00,000 (Rupees Ten Lakhs only) with simple interest calculated at ten percent per annum from the date of filing of the claim petition till the amount is paid, subject to the adjustment of the amounts already released in favour of the deceased appellant., As requested by learned counsel for the appellants, the amount awarded as above be released by the Hospital in favour of the widow of the deceased complainant, appellant No. 1 in Civil Appeal No. 1700 of 2024, within a period of four weeks from today., The appeals are disposed of on the aforesaid terms along with pending application. (Against the impugned judgment and order dated 15th November 2017 passed by the National Consumer Disputes Redressal Commission, New Delhi in Revision Petition No. 2300 of 2008) Date: 06-02-2024., These matters were called on for hearing today. For Appellant(s): Mr. Susmit Pushkar, AOR; Mr. Gaurav Sharma, Advocate; Dr. S. V. Joga Rao, Advocate; Ms. Radha Pyari, Advocate; Mr. S. Yashwant Prasad, Advocate; Mr. Shivam Bajaj, Advocate; Mr. Ashish Choudhury, Advocate; Mr. Akash Tandon, Advocate; Mr. Rohit Amit Sthalekar, AOR. For Respondent(s): Mr. Sahil Bhalaik, AOR; Mr. Susmit Pushkar, AOR; Mr. Gaurav Sharma, Advocate., Upon hearing the counsel the Supreme Court of India made the following: Leave granted. The appeals are disposed of along with pending application in terms of the signed order.
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id_1486
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Reserved on 23.8.2022 Delivered on 26.8.2022 Appellant: Ishrat Respondent: State Counsel for Appellant: S.R. Verma, Aarushi Khare Counsel for Respondent: A.G.A. Honourable Krishan Pahal, J., Heard Ms. Aarushi Khare, learned Amicus Curiae for the appellant and Sri Vinod Kumar Singh Parmar, learned Additional Government Advocate for the State., Present Criminal Appeal under Section 374(2) of the Criminal Procedure Code has been preferred by accused-appellant Ishrat against the judgment and order dated 20 October 1992 passed by Sri S.C. Nigam, Seventh Additional District and Sessions Judge, Kanpur Nagar in Sessions Trial No. 175 of 1990 (State Vs. Ishrat), Police Station Chamanganj, District Kanpur Nagar, whereby the accused-appellant was convicted under Section 324 of the Indian Penal Code and sentenced to three years rigorous imprisonment. He was also convicted under Section 354 of the Indian Penal Code and sentenced to two years rigorous imprisonment. Both sentences were to run separately., The prosecution story, in a nutshell, as unfolded from written report dated 29 November 1988 (Exhibit Ka-1) is that informant Shaukat Ali (PW-1) filed a written report transcribed by Mohd. Aslam, mentioning that on 29 November 1988 between 1:00 PM and 3:00 PM, his minor daughter aged about four to five years had gone to the house of a neighbour to play. On the same day at about 3:00 PM, some people of the locality brought his minor daughter in a blood‑soaked condition from the field and informed that an unknown person had assaulted her private parts with a blade. The victim was taken to the hospital for treatment. The FIR also stated that the blood‑stained blade was still lying in the field., On the basis of the written report (Exhibit Ka-1), a First Information Report (Exhibit Ka-5) was registered on 29 November 1988 at 9:15 PM as Case Crime No. 274 of 1988, under Section 324 of the Indian Penal Code against an unknown person. Thereafter investigation was initiated., The investigation was taken up by the Investigating Officer Mehfooz Ali, Sub‑Inspector, who after recording the statements of the witnesses, preparing a site plan, taking possession of the blood‑stained blade and other materials, arrested the appellant and prepared the arrest memo dated 1 December 1988, thereafter submitting the charge‑sheet against him on 16 December 1988., Charge against the appellant was framed by the Trial Court on 22 June 1990 under Sections 324, 376 and 511 of the Indian Penal Code. The appellant claimed to be a juvenile at the time of the offence but after a radiological examination he was found to be a major. The trial proceeded accordingly., In order to prove its case, the prosecution examined ten witnesses: PW‑1 Shaukat Ali (informant), PW‑2 the victim, PW‑3 Dr. Sushma Singh, PW‑4 Ram Kishore, PW‑5 Dr. H.N. Bahadur, PW‑6 Dr. Ashok Upadhyay, PW‑7 Mohd. Javed, PW‑8 Gulshan, PW‑9 Shakeela and PW‑10 Mehfooz Ali. The Court also examined Dr. Ram Babu as CW‑1 to prove the ossification test report of the appellant, wherein the age of the appellant was found to be above eighteen years., PW‑1, the father of the victim, corroborated the prosecution story. He stated that the appellant had committed the diabolic offence of severely cutting the private parts of his minor daughter after having attempted to rape her. He was cross‑examined by counsel for the appellant and reiterated that after lodging the FIR he was informed by the victim that it was the appellant who had committed the crime, as the victim was not in a condition to speak at the time of lodging the FIR. He produced his written report., PW‑2, the victim, stated that the appellant had taken her behind the bushes in the field by luring her with a toffee, where she was disrobed and her private part was cut by him with a blade. She also stated in her examination‑in‑chief that she had told the name of the appellant at the hospital and identified him in the dock. Nothing material could be extracted from her in cross‑examination by the defence counsel., PW‑3, Dr. Sushma Singh, stated that the victim was in a state of shock at the time of her medical examination and was not even able to speak. Her blood pressure was 180/50 mm Hg. The internal examination was conducted under general anaesthesia. She observed that the private part was badly damaged with tears of size 6 mm × 5 mm and 8 mm × 0.5 mm. No spermatozoa were found in the vaginal smear. Dr. Singh opined that there was a possibility of sexual intercourse having been committed with the victim. She produced the medical examination report as Exhibit Ka-2. The ossification test indicated that the age of the victim was four years. She further stated that, due to the serious condition of the victim, she consulted Senior Dr. Negi and Surgeon Dr. Bahadur and the medical examination was conducted in their presence., PW‑4, Ram Kishore, is the formal witness. He produced the FIR as Exhibit Ka-5 and the GD of the institution of the FIR as Exhibit Ka-6., PW‑5, Dr. H.N. Bahadur, Senior Consultant, produced the bed‑head ticket of the victim as Exhibit Ka-7. The victim had undergone treatment from 29 November 1988 to 23 December 1988., PW‑6, Dr. Ashok Upadhyay, who was the first person to examine the victim on 29 November 1988 at about 3:45 PM, found the following injuries on her body: (1) Horizontal incised wound 6 cm × 1 cm, muscle deep, present on the pubic region 6 cm below the umbilicus with fresh bleeding; (2) Horizontal incised wound 8 cm × 1 cm, muscle deep, half a centimetre below injury no. 1 with fresh bleeding; (3) Horizontal incised wound 10 cm × 2 cm, muscle deep, one and a half centimetre below injury no. 2; (4) Multiple incised wounds over the right labia majora region on its upper surface and side, ranging in size from 4 cm to 1 cm, depth not probed, with fresh bleeding; (5) Multiple incised wounds over the left labia region on its upper surface and side, ranging in size from 2 cm to 1 cm, depth not probed, with fresh bleeding; (6) Multiple small incised wounds along the margin of the right labia, ranging in size from 0.5 cm to 1 cm, depth not probed, with fresh bleeding; (7) Multiple small incised wounds along the margin of the left labia, ranging in size from 0.5 cm to 1 cm, depth not probed, with fresh bleeding. He opined that all injuries were fresh and caused by a sharp‑edged object. The patient was admitted and referred to the Emergency Medical Officer of Dufferin Hospital for internal examination of the private parts and necessary action., He further opined that the injuries could have been sustained by the victim on 29 November 1988 between 1:00 PM and 2:00 PM., PW‑7, Mohd. Javed, is an independent witness. He stated in his examination‑in‑chief that he had not seen the occurrence but had heard of it on 29 November 1988 at about 5:00 PM. He did not support the prosecution story and was therefore declared hostile by the public prosecutor and cross‑examined., PW‑8, Gulshan, another independent witness, also retracted his statement recorded by the Investigating Officer and did not support the prosecution version., PW‑9, the mother of the victim, stated that about fifteen days before the occurrence an altercation with the appellant had occurred over watching television in her house. She also corroborated the statement of the victim., PW‑10, Mehfooz Ali, the Investigating Officer, produced the recovery memo of the blood‑stained blade recovered from the place of occurrence as Exhibit Ka-8, the memo of blood‑stained sand and plain sand as Exhibit Ka-9, the letter for medical examination of the victim indicating that the victim was found in an unconscious state and could not speak at the time of admission on 29 November 1988, the site plan as Exhibit Ka-11, the memo of blood‑stained frock of the victim as Exhibit Ka-12, and the recovery memo of the blood‑stained frock as Exhibit Ka-13. The charge‑sheet was produced as Exhibit Ka-14., Thereafter, the statement of the accused‑appellant under Section 313 of the Criminal Procedure Code was recorded. He stated that the prosecution story is false and claimed that he had been falsely implicated in the case to get the house vacated., On appreciation of the evidence available before the Trial Court and after hearing the parties, the learned Sessions Judge convicted and sentenced the accused‑appellant, Ishrat, as stated above, by the judgment and order impugned in this appeal., The appellant argued that the FIR is delayed by about six hours and there is no explanation for the delay. The appellant is not named in the FIR. During investigation his name appeared in the statements of the victim, informant and other witnesses. The Amicus Curiae pointed out several contradictions in the statements of witnesses PW‑1, PW‑2 and PW‑9. She also stated that the blood‑stained blade and the blood‑stained frock of the victim have not been sent for chemical examination by the Investigating Officer, which is a serious lacuna in the prosecution story. She further submitted that the offence occurred in 1988 and much time has elapsed, thus the appellant is entitled to acquittal. The independent witnesses PW‑7 and PW‑8 turned hostile. She contended that if the court does not allow the appeal, the appellant may be released to the period of sentence already undergone., The learned Additional Government Advocate opposed the criminal appeal on the ground that the victim is a child of tender age of four years. The offence of cutting her private parts with a blade and attempting to commit rape and outraging her modesty has been proved by the statements of PW‑1, PW‑2 and PW‑9, with no material contradictions. The treating doctors have also corroborated the prosecution story and have been asked about the alleged time of offence, which further substantiates the prosecution allegations., He further stated that the FIR was naturally lodged by the appellant as it was his priority to get the victim medically examined because her private part was found mutilated and she was not in a conscious state. The delay is explained by the statement of PW‑1 and is corroborated by the statements of PW‑2 and PW‑10, Sub‑Inspector Mehfooz Ali., He relied on the Supreme Court judgment in Shiv Ram and Another vs. State of Uttar Pradesh, wherein the Court held that the absence of independent witnesses does not automatically discredit the evidence of eyewitnesses, and that the first information report lodged within four hours, naming all the accused, lends assurance to the trustworthiness of the evidence., He also stated that the prosecution story is proved by the statements of PW‑1, PW‑2 and PW‑9 and they cannot be considered interested witnesses as there is nothing on record to suggest that the appellant has been falsely implicated by the informant., It is a serious and diabolic offence committed against a minor girl of tender age of four years., It is proved beyond reasonable doubt by the statements of prosecution witnesses that the appellant committed the aforesaid heinous offence. The date, time and motive of the offence are corroborated. The identification of the appellant in the dock was done by PW‑2. The witnesses were not cross‑examined on this point by counsel for the appellant. Minor contradictions in the victim’s statement were not put to the Investigating Officer as required under Section 145 of the Indian Evidence Act, 1872, and therefore stand unrebutted., The second point for determination, whether the appellant committed any assault or criminal force with an intent to outrage the victim’s modesty, is also proved beyond reasonable doubt by the statements of the victim and the doctors., The learned Trial Court rightly invoked Section 222 of the Criminal Procedure Code, wherein the allegations of commission of rape by the appellant were not found, although the internal examination report supports it. The evidence regarding the offence punishable under Section 354 of the Indian Penal Code was established by the statement of PW‑2, and therefore the Trial Court rightly convicted the appellant under Section 354, although the charge was framed under Sections 376 and 511. The accused‑appellant deserved harsh punishment for the diabolic offence, which depicts his depraved mental status., The Amicus Curiae pointed out certain discrepancies in the statements of the prosecution witnesses. The Sessions Court held that minor discrepancies and contradictions are natural in untutored witnesses’ statements, especially when the examination occurs after about two years of the occurrence., The Apex Court in Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat held that minor discrepancies do not warrant a reappraisal of the evidence, as witnesses cannot be expected to possess a photographic memory and may make estimates regarding time and sequence of events., Section 134 of the Indian Evidence Act, 1872 provides that it is the quality and not the quantity of evidence that matters. No particular number of witnesses is required to establish a case. In the present case, the victim’s statement is corroborated by medical evidence. The Apex Court in Chacko alias Aniyan Kunju and Others vs. State of Kerala explained that conviction can be based on the testimony of a single wholly reliable witness, and corroboration may be necessary when the witness is only partially reliable., Regarding the hostility of witnesses PW‑7 and PW‑8, the statement of hostile witnesses can be discarded, and only the part that corroborates the prosecution story should be considered. The Apex Court in C. Muniappan v. State of Tamil Nadu held that the evidence of a hostile witness cannot be rejected in toto; the dependable portions may be used., Considering the overall facts, the offence committed by the appellant by mutilating the private part of the minor girl cannot be termed as an act of a person of normal virtues. The offence was committed out of severe sexual lust and sadistic approach. The appellant does not deserve any leniency as the case stands proved beyond reasonable doubt by the prosecution witnesses and medical evidence., It is a very sorry state of affairs that the State has not preferred any appeal against the leniency observed by the learned Trial Court in sentencing the appellant to such a short term. The lethargy of the public prosecutor is highly deplorable., From the evidence available on record, it is proved beyond reasonable doubt that the accused‑appellant Ishrat committed a grave offence and the learned lower court rightly convicted and sentenced him as mentioned above., In the above circumstances, I find no merit in the appeal. The appeal is dismissed. The judgment and order dated 20 October 1992 passed by Sri S.C. Nigam, Seventh Additional District and Sessions Judge, Kanpur Nagar in Sessions Trial No. 175 of 1990 (State Vs. Ishrat), Police Station Chamanganj, District Kanpur Nagar, is hereby affirmed. Bail bonds of the accused‑appellant are cancelled and sureties are discharged from their liability. He is directed to surrender before the court below forthwith to serve out the remaining sentence, and if he fails to do so, the concerned Chief Judicial Magistrate shall take appropriate action., A copy of this judgment along with the lower court record is to be returned to the concerned court forthwith for compliance. A compliance report is also to be sent to this Court.
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id_1489
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The instant petition has been preferred by 17 aspirants who appeared at the Union Public Service Commission - Civil Services (Preliminary) Examination 2023, (hereinafter referred to as Preliminary Examination), conducted by the Union Public Service Commission / respondent no. 1 (hereinafter referred to as the UPSC), and did not qualify for the subsequent round i.e., Civil Services (Mains) Examination 2023. The petitioners are inter alia aggrieved by the respondents' act of neither releasing the individual marks scored, cut off marks and answer keys along with the Preliminary Examination's result nor assigning any reason for the non‑disclosure., By way of this judgment, High Court of India has considered and adjudicated upon the issue of maintainability of the instant petition preliminarily raised on behalf of the respondents., The learned counsel appearing for the petitioners, during the course of arguments, submitted that he is not pressing prayers (a) and (b) as mentioned in the petition and clarified that the petitioners are only pressing prayer (c) to the extent of paragraph No. 3 of the impugned Press Note dated 12th June, 2023 and not the entire Press Note. Therefore, the limited question for consideration, at this instance, is whether the instant petition is maintainable or, considering the statement made on behalf of the petitioners, whether High Court of India has the jurisdiction to entertain the reliefs which have been sought by the petitioners in prayer (c) and (d)., The learned counsel for the respondents, at the very outset, objected to the instant petition on the ground of maintainability and submitted that High Court of India lacks the jurisdiction to entertain and adjudicate upon the present writ petition since the consideration of the instant petition is barred by the operation of the Administrative Tribunals Act, 1985 (hereinafter referred to as the Act)., It is submitted that the reliefs sought in the instant writ petition fall within the ambit of recruitment matters and further within the expression recruitment and matters concerning recruitment as mentioned in the bare language used in Section 14 of the Act., It is further submitted that the jurisdiction of High Court of India stands excluded by virtue of Section 28 of the Act which reads as under: 28. Exclusion of jurisdiction of courts except the Supreme Court under Article 136 of the Constitution. On and from the date from which any jurisdiction, powers and authority becomes exercisable under this Act by a Tribunal in relation to recruitment and matters concerning recruitment to any Service or post or service matters concerning members of any Service or persons appointed to any Service or post, no court except (a) the Supreme Court; or (b) any industrial Tribunal, Labour Court or other authority constituted under the Industrial Disputes Act, 1947 (14 of 1947) or any other corresponding law for the time being in force, shall have, or be entitled to exercise any jurisdiction, powers or authority in relation to such recruitment or matters concerning such recruitment or such service matters., It is submitted that the counsel for the petitioners does not press prayer (a) and (b) and only confines to the prayers (c), to the extent of paragraph No. 3 and the prayer (d). It is submitted that a perusal of said prayers makes it abundantly clear that the reliefs claimed therein specifically relate to the recruitment to the All‑India Service which is made through the mechanism of Civil Service Examination. The answer key referred to in the relevant prayer clauses pertains to the Civil Services Preliminary Examination. Even the Press Note, as mentioned in the prayer clause, concerns the process which is to be followed by the UPSC for declaration of the answer key in relation to the said examination. By no stretch of imagination can it be claimed that prayers (c) and (d) have no bearing on the aspects covered by the provisions of Section 14 and Section 28 of the Act. Further, it cannot be said that the prayers in question do not have any correlation with the recruitment to All‑India Service for which the Civil Service Examination (Preliminary) Examination 2023 is conducted by the UPSC., It is submitted that the Hon’ble Supreme Court has interpreted Section 14 and 28 of the Act, in its judgment rendered by its Constitution Bench, in L. Chandra Kumar v. Union of India (1997) 3 SCC 261. The Hon’ble Supreme Court in the said judgment while comprehensively considering the above‑said provisions held that the powers of the Central Administrative Tribunal (hereinafter referred to as the Tribunal) are exhaustive and inclusive of all aspects of legality such as violation of the principle of natural justice and enforcement of fundamental rights. The Hon’ble Supreme Court also held that powers of the Tribunal under the said provisions substitute the powers of the High Court exercised under Article 226 of the Constitution of India. Reliance has also been placed on the judgments passed in Savitur Prasad v. Union of India, 2017 SCC OnLine Del 12297, State of Rajasthan v. Rajendra Prasad Sharma & Ors., Civil Appeal No. 2553/2022 dated 29th March 2022, and All India NIC S&T Officers Association v. Union of India, W.P. (C) 14533/2022, passed by High Court of India on 14th December 2022., It is, thus, submitted that High Court of India lacks the jurisdiction to entertain the instant petition and as such the submission to the effect that the said prayers can be granted by entertaining this petition is far‑fetched, misconceived and misleading, hence, the same deserves to be rejected outrightly, in interest of justice., Per Contra, the learned counsel appearing for the petitioners submitted that the UPSC's contention that Section 14(1) read with Section 28 of the Administrative Tribunals Act, 1985 would bar the present writ, is neither substantiated nor explained, and is not even supported by the judicial view on this issue. It is a mere assertion that asking for the marks, cut‑off marks and answer key along with the result, instead of waiting till the end of the examination, is a matter relating to recruitment to the All India Service and that granting such reliefs will have a bearing on the recruitment thereto., It is submitted that Section 14(b) of the Act grants the power to the Tribunal to hear all service matters. Service matters as defined in Section 3(q) of the Act means all matters relating to the conditions of service. However, such a question does not arise in the present petition. Therefore, only the effect of Section 14(1)(a) of the Act is to be considered which states that the Tribunal would exercise jurisdiction, power and authority in relation to recruitment, and matters concerning recruitment, to any All‑India Service or to any civil service of the Union or a civil post under the Union or to a post connected with defence services, being, in either case, a post filled by a civilian., It is submitted that for the respondents to show that there is a bar under Section 14(1)(a) of the Act against the instant petition, the respondents have to show that the matter pertains to recruitment. Recruitment means the act or process of recruiting or an act of offering inducement to qualified personnel to enter into a particular job or profession. This is the basic characteristic of the term recruitment in the context of service jurisprudence. A Division Bench of the Punjab and Haryana High Court in Basant Lal Malhotra v. State of Punjab, 1968 SCC OnLine P&H 155, held that the term recruitment connotes and clearly signifies enlistment, acceptance, selection or approval for appointment., It is further submitted that Section 14 of the Act has to be read in the background of Article 323A of the Constitution of India, which makes provision for the Parliament to provide for adjudication of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union, State, any local or other authority under the control of the Government of India., It is submitted that the word ‘and’ appearing in Article 323A is conjunctive, which means that only the recruitment and condition of service of those persons who are appointed to a post which is a public post and is within the public service domain can be brought under the umbrella of Article 323A to set up administrative tribunals for speedy disposal of service disputes. It is submitted that there is no employee‑employer relationship that exists in the present matter, nor are the petitioners herein challenging selection/recruitment of the persons appointed to public service or post, which is the mandate of Article 323A of the Constitution of India. Therefore, there is no bar whatsoever under Article 323A of the Constitution, and the questions and claims raised by the petitioners can be entertained by High Court of India., It is submitted that the declaration of marks, cut off marks and the publication of the answer key of a candidate who is already not qualified, not claiming recruitment, cannot be treated as a matter concerning recruitment., It is further submitted that since the petitioners have not pressed prayer clauses (a) and (b), and have also modified prayer (c), the writ petition cannot be said to be barred. It is submitted that the Preliminary Examination is not even the recruitment examination and is only a qualifying and stand‑alone examination., The learned counsel for the petitioners submitted that the petitioners are not presently challenging the result of the Preliminary examinations or re‑examination or claiming recruitment or participation in any examination for recruitment. The petitioners have not qualified the examination and the reliefs being sought by the petitioners merely pertain to declaration of marks, cut off marks and release of the answer key along with the result before the lapse of one year. It is submitted that such reliefs cannot be treated as matters concerning recruitment. The declaration of marks, cut off marks, mark sheet and answer key along with the result will not affect the recruitment process or give appointment to the petitioners since the information being sought by the petitioners will ultimately be given by the UPSC after one year. Hence, publishing the answer key along with the result will not affect the recruitment process in any manner., It is also stated that the instant writ raises a substantial question of general public importance for the entire student community which has fallen for the consideration of this writ court. It is submitted that the purpose of giving the marks, cut off marks and answer key is that the students are aware of how much marks they scored, the tentative marks to be secured the next time to qualify and can also ascertain, and rectify in future, the errors committed. Further, if an aspirant finds that he has secured extremely low marks in comparison to the tentative cut off, he may decide to invest his time, energy and efforts into something else instead of continuing with the preparation for the Civil Services Examination. This would also lead to saving time, money and would also substantially reduce the burden of number of students., It is submitted that not providing to the students the answer key of an exam they have appeared for, not considering the representations of the candidates despite a particular time window being provided for the same, asking questions which are disproportionately vague, testing candidates' ability to answer only on the basis of guesswork, is not only arbitrary but defies all principles of fairness, logic and rationality and is a question which can be adjudicated by High Court of India by way of exercising its writ jurisdiction., It is further submitted that even the Parliamentary Standing Committee on Personnel, Public Grievance, Law and Justice in its Report No. 131, i.e., Report on Review of functioning of recruitment organizations of Government of India has recommended that answer key for UPSC Examination be published right after the Preliminary stage. The relevant portion of the said report is reproduced hereunder: The Committee, therefore, recommends that UPSC may take steps to publish the answer key right after the preliminary stage of the civil services examination and allow candidates to raise objections., It is submitted that it is evident that the issue of release of the answer key of the UPSC Preliminary Examinations is an issue which must be considered by the concerned Department and it is prayed that directions may be given by High Court of India for the same., It is submitted that the respondent no. 1/ UPSC has relied upon the general judgments where the facts are entirely different as discussed hereafter: (i) L. Chandra Kumar v. Union of India (Supra) The Hon’ble Supreme Court in this case held that the Tribunals may perform a supplemental role in discharging the powers conferred by the aforesaid Articles overruling the earlier decision in the case of S.P. Sampath Kumar v. Union of India, (1987) 1 SCC 124, which had held that the Tribunals were substitutes to the High Court. Despite this, UPSC in its preliminary objection states that the Tribunal is in‑substitute of the powers of this Court. (ii) Savitur Prasad v. Union of India (Supra) In this case, the challenge was against an Order passed by the Hon’ble President of India placing the appellant therein under suspension, while a criminal offence was under investigation against the appellant. This case was a clear case where there existed an employer‑employee relationship and thus would come within the definition of service matter. The Tribunal thus had jurisdiction over this case. However, the facts of the petitioners' case before High Court of India stand on a completely different footing. (iii) All India NIC S&T Officers Association v. Union of India (Supra) In this case, a Writ of Mandamus was filed before High Court of India seeking recall of part of a Notification issued under the subject Personnel Policy for Group A S&T Officers of Ministry of Electronics and IT and its Organisation and a Circular issued by the Ministry of Electronics and IT relating to promotion of, and assessment process and criteria and conditions of promotions. The grievance related to the discrimination between those officers who were promoted prior to the change in policy. This is also a case directly concerning persons in service, thereby affecting the conditions of service. However, there is no such situation in the instant case., To give force to his arguments, the learned counsel for the petitioner has also placed reliance upon the judgments passed in Kanpur University v. Sameer Gupta & Ors., (1983) 4 SCC 309, and Padma Sharma v. Director of Education, 1989 SCC OnLine HP 81., It is submitted that the declaration of answer key along with the result is a right of a student and grievances relating to infraction of such right cannot be relegated to the Administrative Tribunal and accordingly, these questions can be considered by High Court of India by exercising its powers under Article 226 of the Constitution of India., Heard learned counsels for the parties and perused the record., The learned counsels for the parties addressed High Court of India only on the issue of maintainability of the instant petition and as such, High Court of India is restricting itself to adjudicating the question of maintainability of the case at this stage., The crux of the arguments made by the learned counsel for the petitioners is that High Court of India as a writ court, while exercising its power under Article 226 of the Constitution, can entertain the instant petition. On the other hand, the learned counsel for the respondents have argued that High Court of India is barred from entertaining the instant petition because of the restraint placed by the provisions of the Administrative Tribunals Act, 1985 since the scheme of the said Act provides that the Central Administrative Tribunal has the exclusive jurisdiction to assess disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services., The relevant provision under the Constitution of India which empowers the Tribunal is Article 323A, which reads as under: 323A. Administrative tribunals. (1) Parliament may, by law, provide for the adjudication or trial by administrative tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation owned or controlled by the Government., The enactment overseeing the powers and functions of the Tribunal is the Administrative Tribunals Act, 1985, the long title of which reads as under: An Act to provide for the adjudication or trial by Administrative Tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation or society owned or controlled by the Government in pursuance of article 323A of the Constitution and for matters connected therewith or incidental thereto., It is evident from the conjoint reading of the above quoted relevant portions of the Constitution of India and the Act that the Tribunal is empowered to adjudicate disputes and complaints qua recruitment and conditions of service of persons appointed to public services and such other posts. The key words in the provision being recruitment and conditions of service have to be given due consideration while adjudicating an issue of the nature which is before High Court of India in the instant petition., In the matter at hand, since the petitioners are aspirants and are not employed in the public services, there is no doubt that the issues of conditions of service, at the first instance, do not exist or even arise. What is thus required to be seen is whether or not the prayers made by the petitioners herein pertain to recruitment., Recruitment has neither been defined in the Administrative Tribunals Act, 1985 nor in the General Clauses Act, 1897. Recruitment, in its dictionary meaning, refers to the act or process of recruiting, or offering to recruit, qualified personnel to a particular job or profession. Even under Section 14(1)(a) of the Act, for the jurisdiction of the Tribunal to lie, the matter in dispute has to pertain to recruitment. In the instant case, after having relinquished their prayers (a) and (b) that dealt with a challenge to the result of the Preliminary Examination, since the candidates are merely asking for the disclosure of the answer key, the same stands on a different footing altogether than the recruitment in the context of Article 323A of the Constitution of India. Had the petitioners continued with their earlier prayers, the case could have been on a completely different footing, and its maintainability would have been adjudicated accordingly., At this juncture, it is pertinent to peruse the impugned Press Note dated 12th June 2023, which reads as under: On the basis of the result of the Civil Services (Preliminary) Examination, 2023 held on 28/05/2023, the candidates with the following Roll Numbers have qualified for admission to the Civil Services (Main) Examination, 2023. The candidature of these candidates is provisional. In accordance with the Rules of the Examination, all these candidates have to apply again in the Detailed Application Form‑I (DAF‑I) for the Civil Services (Main) Examination, 2023. The dates and important instructions for filling up of the DAF‑I and its submission will be announced in due course on the website of the Commission. Candidates are also informed that marks, cut off marks and answer keys of CS (P) Examination, 2023 will be uploaded on the Commission's website i.e. https://upsc.gov.in only after the entire process of the Civil Services Examination, 2023 is over i.e. after the declaration of final result. The Union Public Service Commission has a Facilitation Counter near the Examination Hall Building in its premises at Dholpur House, Shahjahan Road, New Delhi. Candidates may obtain any information/clarification regarding their result of the above mentioned Examination on all working days between 10.00 AM to 5.00 PM, in person or on Tel. No. 011‑23385271, 011‑23098543 or 011‑23381125 from the Facilitation Counter., The reliefs sought herein by the petitioners are with respect to the highlighted paragraph of the Press Note as mentioned above, and the argument is limited as to the opportune time of releasing the answer key of the Preliminary Examinations. The claims of the petitioners prima facie pertain to the concerns surrounding the facets of fair play and right to know as well as the Fundamental Rights of the candidates and as such would require High Court of India to test the same by delving into the domain of administrative law and constitutional provisions. However, the said exercise can be done if the objection on maintainability is decided in favor of the petitioners and the case is heard on merits., As regards the maintainability and entertainability of the instant prayers, it is pertinent to note that a prayer has been made for release of the answer key of the Preliminary Examination, which is in itself a stand‑alone examination and is qualifying in nature, the score of which is not added to the subsequent stages of examination to determine the rank or for final selection. The candidates, i.e., the petitioners herein, requesting the same have already been disqualified from the said recruitment process/exercise and they are not even challenging their disqualification before High Court of India in the instant petition. In any case, the petitioners are not even challenging the examination process but are making a mere request for disclosure of answer key at the stage immediately succeeding the Preliminary Examinations., Such a prayer cannot be said to per se lead to a dispute with respect to recruitment under Article 323A of the Constitution of India or under the Administrative Tribunals Act, 1985. Once it is held that it does not fall within the ambit of a dispute or complaint with respect to recruitment, it cannot be said that the Tribunal has the exclusive jurisdiction to entertain the said dispute., High Court of India has also taken note of the judgments passed by the Hon’ble Supreme Court as well as by High Court of India in the past regarding issues dealing with examinations and disclosure of answer sheets, including CBSE v. Aditya Bandopadhyay, (2011) 8 SCC 497, Venu C v. CPIO, General Manager (Finance) Postal Accounts, Department of Post, 2021 SCC OnLine CIC 4306 and UPSC v. Agnesh Kumar, (2018) 4 SCC 530. The judgments relied upon by both the parties have also been considered by High Court of India; however, there is no ruling therein pertaining to the disclosure of the answer key of the UPSC Preliminary Examinations or as regards the maintainability of a petition seeking disclosure of scores or answer keys of the Preliminary Examinations., Before concluding, High Court of India has also taken note of a writ petition filed by the UPSC, way back in 2013, wherein respondent no. 1 herein had challenged an order of Chief Information Commissioner directing the UPSC to provide the answer keys of the Preliminary Examination to the Appellant therein. The Chief Information Commissioner in the case of Mrunal Patel v. CPIO, Union Public Service Commission (CIC/SM/A/2012/001599) vide its order dated 1st March 2013 held as under: However, in regard to the answer keys for the Preliminary Examination 2011 and 2012, we would tend to allow the disclosure of this information because, in our opinion, this examination has no bearing on the entire Civil Services Examination process being of a qualifying nature. The marks obtained by a candidate in this examination are not added to the marks in the succeeding stages of the examination to determine the status of the candidate. Therefore it is entirely a standalone examination. In the light of this, we direct the CPIO to provide the answer keys for the Preliminary Examination 2011 and 2012 to the Appellant within 10 working days of receiving this order., The UPSC/respondent no. 1 herein challenged the said order of Chief Information Commissioner by way of a writ petition, bearing W.P.(C) No. 3059/2013 titled Union Public Service Commission v. Mrunal Patel before High Court of India. The said petition was disposed of by the Coordinate Bench of High Court of India on 7th May 2014 in the following terms: Mr. Naresh Kaushik, learned counsel for petitioner states that as civil services examination for the year 2012 has been completed inasmuch as results have already been announced, petitioner shall provide the answer keys to the respondent, if not earlier provided, within a period of four weeks. The aforesaid statement is accepted by High Court of India and petitioner is held bound by the same. In view of the aforesaid, present writ petition and application are disposed of. However, the issue of law raised in the present petition is left open to be decided in an appropriate case., The aforementioned petition filed by the UPSC concerning the disclosure of answer key of the Preliminary Examination, while the entire process of the Civil Services Examination, 2012 was yet to be completed, was not adjudicated in the said petition because by the efflux of time during the pendency of the said petition, one year had passed and the entire process stood completed; secondly the UPSC gave an undertaking before the Court that they shall provide the answer keys to the respondent, if not earlier provided, within a period of four weeks., However, as is evident from a bare perusal of the said order, the issue of law raised therein was left open to be decided in an appropriate case., High Court of India is of the opinion that the instant petition is a fit case for adjudicating the said question that was raised in the above‑said writ petition, as to whether the UPSC can be directed to release the answer key, since the same does not fall within the scope of recruitments as set forth under the Act., As far as the maintainability and entertainability of the instant prayers are concerned, it is pertinent to note that a prayer has been made for release of the answer key of the Preliminary Examination, which in itself is a stand‑alone examination which is qualifying in nature, and the score attained by a qualified candidate is not added to the subsequent stages of examination to determine the rank or for final selection. The petitioners herein are candidates disqualified from the said recruitment exercise and are not challenging their disqualification before High Court of India, nor are they challenging the examination process but are making a mere request for disclosure of the answer key before the entire process is completed., Such a prayer cannot be said to per se lead to a dispute with respect to recruitment under Article 323A of the Constitution of India or under the Administrative Tribunals Act, 1985. Once it is held that it does not fall within the ambit of a dispute or complaint with respect to recruitment, it cannot be said that the Central Administrative Tribunal has the exclusive jurisdiction to entertain the said petition., The prayers in the petition, especially with respect to the request for disclosure of answer key or the marks attained in a public service examination, would warrant and essentially entail an adjudication of the legal and fundamental rights of the candidates including fair play, legitimate expectation and the right to know. In any case, where the enforcement and protection of Fundamental Rights or any rights of a person is sought, High Court of India cannot look the other way., Therefore, High Court of India is of the considered opinion that mere asking for the answer key, which may be used to assess performance of the candidates, does not amount to interference in the process of recruitment barring High Court of India to exercise its jurisdiction under Article 226 of the Constitution of India. As such, in view of the precedents and exposition of law, High Court of India is of the view that there is no hurdle in adjudicating the instant petition.
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Accordingly, the petition stands admitted., It is made clear that any remarks made herein shall have no impact on any other proceedings before any other Supreme Court of India, and as such, the adjudication in the instant order at present is restricted only to the question of maintainability and the subsequent entertainability of the present petition. The order on merits shall be passed after hearing the parties on merits subsequently.
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The Supreme Court of India Collegium recommended the name of Shri Sanjay Kumar Jaiswal, Judicial Officer, for appointment as a Judge of the High Court of Chhattisgarh in the following terms: On 02 September 2022, the then Chief Justice of the High Court of Chhattisgarh, in consultation with his two senior‑most colleagues, made the recommendation. The file was received in the Supreme Court from the Department of Justice on 01 April 2023., As regards the views of the State Government, the Department of Justice has recorded in the file that the constitutional authorities have not given any input so far in respect of the above recommendation made by the High Court Collegium. The proposal has been processed by invoking Paragraph 14 of the Memorandum of Procedure, which provides that if the comments of the Governor, as advised by the Chief Minister, are not received within six weeks from the date of receipt of the proposal from the Chief Justice of the High Court, it shall be presumed by the Union Minister of Law and Justice that the constitutional authorities in the State have nothing to add to the proposal and proceed accordingly., At present, there is no Judge in the Supreme Court of India conversant with the affairs of the High Court of Chhattisgarh to assist us in the process of ascertaining the suitability of the candidate. For the purpose of assessing the merit and suitability of the candidate for elevation to the High Court, we have scrutinized and evaluated the material placed on record. We have also perused the observations made by the Department of Justice in the file as well as the complaint received against the candidate. The Intelligence Bureau has reported that he enjoys a good personal and professional image and that nothing adverse has come to notice against his integrity., Shri Sanjay Kumar Jaiswal is about 58 years of age. On the date of vacancy against which his name has been recommended, his age was 57 years. The Department of Justice has not pointed out anything adverse in regard to his suitability for elevation. He belongs to the Other Backward Classes category. Having regard to these aspects, the Collegium is of the considered opinion that Shri Sanjay Kumar Jaiswal is suitable for appointment as a Judge of the High Court of Chhattisgarh., While considering the above proposal, we have also taken note of the fact that the proposal involves non‑recommendation of a senior Judicial Officer. In this regard, we are in agreement with the justification given by the High Court Collegium in its minutes for not recommending the name of the senior Judicial Officer. In view of the above, the Collegium resolves to recommend that Shri Sanjay Kumar Jaiswal, Judicial Officer, be appointed as a Judge of the High Court of Chhattisgarh.
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Bheru Jain S, Petitioners, versus Shri Mahaveer Jain Swetamber Pedhi (Trust), Bhandavpur Teerth, Mukam Post Bhandavpur Teerth, Tehsil Saila, District Jalore, through its President and Trustees – Shri Jayaratnasurishwarji Chela Shri Shantivijayji, Head of the Trust; Ramesh Kumar; Jugraj; Dudmal; Kajumal; Nenmal; Jugraj; Madanlal; Prithviraj; Mithalal; Lalit Kumar; Shri Vardhaman Rajendra Jain Bhagyodaya Trust (Sangh), Mukam Post Bhandavpur Teerth, Tehsil Saila, District Jalore, through President and Trustees – Shri Jayaratnasurishwarji Chela Shri Shantivijayji (Head of the Trust); Moolchand, son of Sukhrajji, resident Mengalwa; Parsamal; Dadamchand; Madanraj; Narparaj; Kantilal S; Bhanmal; Sarupchand S; Uttamchand S; Bhairulal; Babulal S; Ashok Kumar; Dayalal; Surajmal; Rajeev Kumar; Respondent. For Petitioners: Mr. C. S. Kotwani along with Ms. Swati Shekhar., Hon'ble Dr. Justice Nupur Bhati, Rajasthan High Court, Order Reportable 05/02/2024., Although the matter was listed in the Fresh category, it was heard finally today. This writ petition has been filed under Articles 226 and 227 of the Constitution of India claiming the following reliefs: (i) The record of the case may be called for; (ii) The order dated 04.11.2023 may be quashed and set aside and service upon the respondents may be treated as sufficient, and alternatively, the matter may be transferred from the District Judge, Jalore to some other place to prevent abuse of the process of law as well as of the Court; (iii) The respondents may be restrained from undertaking any activities in the management of the temple; (iv) Costs of litigation and damages may be allowed in favour of the petitioner; (v) Any other appropriate writ, order or direction favourable to the petitioner may be granted., The petitioners have filed a suit for permanent and mandatory injunction against the respondents to maintain the old structures of the temples and to remove the self‑styled Guru Jairatan Sureshwar Ji, who has taken over the entire management of the trust in the absence of any elections, from his post. The petitioners also pray for the rendition of the accounts along with the entire property of the trust under the supervision of a person appointed by the learned trial court and for conducting elections for the trust. Respondents numbered 12 to 27 are the trustees of this trust., With regard to the response to the suit and the temporary injunction application, the learned Presiding Officer issued notices on 30.01.2023 and 04.11.2023 (Annexures 3 and 4) where it was observed that service of summons to Respondent/Defendant numbers 2 to 11 and 13 to 27 was not complete., Petitioners, being aggrieved by the order dated 04.11.2023, have preferred this writ petition., Learned counsel for the petitioners submits that service of summons is complete in accordance with Order V Rule 9 of the Code of Civil Procedure, 1908, since summons were served to Shri Jairatan Sureshwarji as well as to the manager in their personal capacities, and therefore the summons can be said to be duly served upon the respondents/defendants. The relevant provision is reproduced below., Service on agent by whom defendant carries on business: (1) In a suit relating to any business or work against a person who does not reside within the local limits of the jurisdiction of the Court from which the summons is issued, service on any manager or agent, who, at the time of service, personally carries on such business or work for such person within such limits, shall be deemed good service. (2) For the purpose of this rule the master of a ship shall be deemed to be the agent of the owner or charterer., Learned counsel for the petitioners further submits that a power of attorney on behalf of respondents numbered 1 to 12 has been submitted by Mr. Rajender Kachhawa, who is alleged to have connivance with the Presiding Officer. A complaint regarding this matter has been submitted before the Chief Justice of the Rajasthan High Court., Moreover, learned counsel for the petitioners submits that the Presiding Officer granted bail to one Mohd. Parvez in Criminal Miscellaneous (Bail) Case 98/2023 under the Narcotic Drugs and Psychotropic Substances Act, 1985 by order dated 27.03.2023 (Annexure 6), despite the fact that the contraband recovered from the accused was more than the permissible commercial quantity. The same order was passed by the Presiding Officer even though this Hon'ble Court generally refrains from granting bail in such cases. The order also shows that counsel Shri Rajender Kachhawa, who appeared for the accused, also appears for respondents numbered 1 to 12 in the instant case, indicating connivance between the Presiding Officer and the counsel., Learned counsel for the petitioners further submits that despite the service of summons, the Presiding Officer, being in connivance with counsel Shri Rajender Kachhawa, is not treating the service as complete upon the concerned persons or their family members. Consequently, the inaction of the learned court below would create chaos and cause irreparable loss to the heritage of the properties and the accounts of the temple in question., It is observed that the learned District and Sessions Judge, in his order dated 04.11.2023 (Annexure 4), noted that the petitioners have not made Shri Jairatan Sureshwarji and the manager of Shri Vardhamaan Rajender Jain Bhadvaji Trust, Bhadavpur, parties to the case through the Trust; rather, they have been made parties in their personal capacities. Since respondents numbered 2 to 11 and 13 to 27 were personally served, the application was rejected., The trial court observed that, as per the report of the Office concerning respondents numbered 2 to 11 and 13 to 27, one Shri Jairatan Sureshwarji and the manager of the Trust were present at the address mentioned for those respondents, and they informed that the respondents were residing at Peshawar and were asked to accept notices but they refused and did not allow the notice to be affixed. The trial court further held that because the respondents were impleaded as parties in their own capacities and not through the President or manager of the Trust, the request of counsel for the petitioners that such service be treated as complete must be rejected. Accordingly, under Order V Rule 9, since the respondents were impleaded in their personal capacities and not through any empowered agent, the summons cannot be declared as duly served., This Court finds that the petitioner has alleged that the Presiding Officer is in collusion with the opposite counsel. The apprehension of the petitioners arises from the denial of treating service of summons as complete by the Presiding Officer in Rajkot. If the petitioners are aggrieved by the order of the trial court, they have the right to challenge it before a higher court. Allegations of misconduct against a judicial officer are matters for the jurisdiction of the Superior Court., The petitioner also states that a complaint has been filed by the Jalore Bar Association alleging that the Presiding Officer is in collusion with counsel, and that the complaint is pending before the Hon'ble Chief Justice of the Rajasthan High Court. Such complaints cannot become a ground for pleading on the judicial side; a lawyer must maintain restraint and not make allegations against a Presiding Officer, but must rely on the order and applicable provisions., The petitioner further alleges that the Presiding Officer granted bail to one Mohd. Parvez in a Narcotic Drugs and Psychotropic Substances case where the contraband recovered exceeded the commercial quantity, and that the same counsel, Shri Rajender Kachhawa, represented both the accused and respondents numbered 1 to 12, indicating connivance., From the perusal of the complaint submitted by members of the Bar and the order annexed as Annexure 5, it appears that Presiding Officer Shri Haroon is in connivance with counsel Shri Rajender Kachhawa and, therefore, is not treating the urgency of the matter seriously, deferring it on the ground of lack of service of summons. Under the general rule, service upon any adult member of the family can be treated as sufficient service, but the learned court below is proceeding without considering the urgency, while respondents are attempting to take over the temple property., The Court notes that in Krishna Prasad Verma versus State of Bihar, AIR 2019 SC 4852, the Supreme Court held that if a judicial officer passes a wrong order, action may be taken by recording the material on the administrative side and placing it in the service record of the officer. Only when there are clear allegations of misconduct, extraneous influences, or gratification should disciplinary proceedings be initiated., In Prof. Abdul Gani Bhat v. Mr. Malik Shabir Ahmed, (No. 236/2012 decided on 21.12.2017), the Jammu and Kashmir High Court, Srinagar Bench, observed that the authority of the Court and public confidence must not be shaken, and that defamatory aspersions against a judge undermine the dignity of the Court and may constitute contempt, libel, or defamation., In Anupam Ghosh & Anr. v. Faiz Mohammed and Ors., (2022) 0(SC) 1609, the Supreme Court held that the mere passage of adverse orders does not imply that the Court was influenced; aggrieved parties must seek remedy in a higher forum, and allegations against judicial officers for unfavorable orders are discouraged., Section 1 of the Judicial Officers Protection Act, 1850 provides that officers acting judicially shall not be liable to suit for acts done in good faith in the discharge of their judicial duties, provided they believed themselves to have jurisdiction. This provision embodies the common‑law rule of judicial immunity, ensuring independence of judges., The petitioners have alternatively prayed that the matter be transferred from the District Judge, Jalore to some other place while casting aspersions upon the Presiding Officer. Such practice is deprecated; if the order of the learned District Judge is not acceptable, the petitioners may challenge it in the appropriate forum. Lawyers are expected to maintain restraint and not make allegations against a Presiding Officer., In view of the foregoing findings, no interference is called for in the impugned order dated 04.11.2023 (Annexure 4). The instant writ petition is dismissed as devoid of merit, with costs. The stay application and all other pending applications, if any, are also dismissed. The petitioner is directed to deposit a cost of Rs.10,000 before the Rajasthan State Legal Services Authority, Jodhpur.
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Reportable Vedanta Limited Petitioner Versus The State of Tamil Nadu & Ors Respondents, Table of Contents A. Special Leave Petition (C) Nos 10159-10168 and 10461-10462 of 2020 Background, The Special Leave Petitions arise from a judgment dated 18 August 2020 of a Division Bench of the Madras High Court in a batch of ten petitions under Article 226 of the Constitution of India. A series of orders passed in April and May 2018 by the Tamil Nadu Pollution Control Board and by the Government of Tamil Nadu and an order dated 29 March 2013 passed by the former form the subject of the challenge. By the orders impugned, the copper smelter operated by the petitioner (Vedanta Limited) at the SIPCOT industrial complex in Thoothukudi in Tamil Nadu was directed to be closed for violations of numerous environmental norms. Initially, there was a challenge before the National Green Tribunal. The order of the Tribunal was placed in issue before the Supreme Court of India by the Tamil Nadu Pollution Control Board and became the subject matter of a judgment delivered by the Supreme Court of India on 18 February 2019, reported as Tamil Nadu Pollution Control Board v. Sterlite Industries (India) Limited. While coming to the conclusion that there was an absence of jurisdiction on the part of the National Green Tribunal, the Supreme Court of India granted liberty to the operator of the unit to move the Madras High Court in appropriate proceedings under Article 226 of the Constitution. This resulted in the institution of the petitions before the Madras High Court, as noticed above, and the judgment of the Madras High Court which has been questioned in these proceedings., An earlier judgment of the Supreme Court of India, reported as Sterlite Industries (India) Limited v. Union of India, concerned the same unit as in the present proceedings. Environmental clearances were granted to the unit in 1995 and it commenced production in 1997. Separate writ petitions were instituted before the Madras High Court, inter alia for directions to cancel the environmental clearances; close the operation of the unit; and to the state to take action against the unit for its failure to take safety measures to remedy pollution and to protect against industrial accidents. By an order dated 28 September 2010, the Madras High Court allowed the writ petitions and directed that the unit be closed. On appeal, a two‑Judge Bench of the Supreme Court of India in Sterlite Industries (supra) adjudicated the validity of this order. The Supreme Court of India held that: the Madras High Court was not justified in interfering with the decision to grant environmental clearance on the ground of procedural impropriety; the Madras High Court was not justified in directing the closure of the plant on the ground that it was located in the SIPCOT industrial complex which was within a 25 km radius of four ecologically sensitive islands in the Gulf of Mannar, because one of the consent orders permitted the establishment of the plant at this location, although the possibility of shifting the plant in the future was not precluded if necessary for environmental conservation; the Madras High Court ought not to have interfered with the exercise of power by the Tamil Nadu Pollution Control Board, which reduced the width of the mandated green belt in the no‑objection certificate; Article 21 of the Constitution empowered the Madras High Court to direct the plant to be closed if it was found to be polluting the environment, notwithstanding the fact that environmental clearances had been granted, if no other remedial measure was available; and inspections of the unit indicated that some emissions and effluents were beyond the permissible limit prescribed by the Tamil Nadu Pollution Control Board, showing that the unit was polluting the environment in violation of legal norms., In terms of the directions of the Supreme Court of India, the Tamil Nadu Pollution Control Board issued directions for the removal of deficiencies. It was then claimed on behalf of the unit that the deficiencies had been removed. On the basis of a joint inspection by the National Environmental Engineering Research Institute and the Central Pollution Control Board, the Supreme Court of India found that several suggestions towards remediation had been complied with. The Supreme Court of India was of the view that closure was therefore not the only remedy. Though there was a suppression of fact by the unit, the Supreme Court of India was not inclined to order closure at that stage and imposed instead a requirement of compensation quantified at Rs. 100 crores for non‑compliance with environmental parameters and operating without consent in terms of the applicable environmental law: “We are of the view that the appellant Company should be held liable for a compensation of Rs 100 crores for having polluted the environment in the vicinity of its plant and for having operated the plant without a renewal of the consents by the Tamil Nadu Pollution Control Board for a fairly long period and according to us, any less amount would not have the desired deterrent effect on the appellant Company.”, While setting aside the order of closure, the Supreme Court of India nonetheless observed that its judgment would not prevent the Tamil Nadu Pollution Control Board from issuing directions to the unit including a direction for closure, if required., Before assessing the submissions of the parties, it is necessary to understand the basis for the decision of the Madras High Court as well as the Supreme Court of India in 2013. It is not possible for the Supreme Court of India to assess the merits of the submissions, shorn of the context in which the decisions were rendered. Both the Supreme Court of India in Sterlite Industries (supra) as well as the Madras High Court in the impugned judgment found that the unit of the petitioner was guilty of serious violations of environmental and other laws., In 2013, the Supreme Court of India in Sterlite Industries (supra) found that the unit had violated the law in more than one way: the unit had caused pollution between 1997 and 2012; the reports of the National Environmental Engineering Research Institute indicated non‑compliance with environmental standards; the unit had operated without a renewal of the consent to operate for a long period of time; and there was an act of suppression and misrepresentation on the part of the unit in the proceedings before the Supreme Court of India., In the impugned judgment, the Madras High Court inter alia found that: the unit had operated without consent from the Tamil Nadu Pollution Control Board for about sixteen years; the unit had operated without hazardous waste management authorisation for about ten years; the unit did not have appropriate systems in place for the disposal of hazardous waste; there was a substantial presence of Total Dissolved Solids in the water; the unit dumped large amounts of copper slag, leading to air and water pollution, and the dumped copper slag also caused the river in Thoothukudi to flood, violating the conditions of the consent; the unit failed to comply with the requirement of maintaining a green belt; the regulator, Tamil Nadu Pollution Control Board, did not exercise its powers in a timely and effective fashion as mandated by law; and the Tamil Nadu Pollution Control Board established that the unit flouted the law for over twenty‑two years. There was no error in the decision of the authorities to direct the closure of the unit., This Court must have due regard to these findings of fact and law while adjudicating whether grounds for interference with the impugned judgment are made out., Essentially, five grounds were urged in the orders for the closure of the unit. They are: the unit had failed to furnish ground water examination reports to ascertain the impact on ground water quality; an extensive amount of copper slag lying on third‑party land had not been removed and a physical barrier had not been constructed between the copper slag and the river to prevent the slag from reaching the river; the unit had applied for authorisation to generate and dispose of hazardous waste but did not have an extant licence; there was a failure to measure emissions in terms of the National Air Quality Ambient Standards; and the requirement of a gypsum pond (mandated by guidelines issued by the Central Pollution Control Board) had not been observed., Apart from the merits, the principal submission which has been urged on behalf of the petitioner by Mr Shyam Divan, senior counsel (supported by Mr Krishnan Venugopal, senior counsel) is that since the closure was founded on the above five grounds, the Madras High Court was not justified, while exercising its writ jurisdiction under Article 226 of the Constitution, in enquiring into other grounds of environmental violations., The above submission has been opposed both by Mr C S Vaidyanathan, senior counsel appearing on behalf of the Tamil Nadu Pollution Control Board and Mr Gopal Sankaranarayanan, senior counsel appearing on behalf of the Government of Tamil Nadu. They have submitted, on the basis of the reliefs which were sought in the writ proceedings, that the petitioners had not merely challenged the orders adverse to them but had, in addition, sought a mandamus for the issuance of renewal permissions. Hence, it was urged that in such an event, it was open to the Madras High Court not only to enquire into the grounds on which closure had been directed but to determine whether the petitioner was entitled to a renewal of permissions., From a reading of the judgment of the Madras High Court, it has emerged that the petitioner had expressly consented to the Madras High Court enquiring into all the facets of the matter so as to determine fully and finally whether the petitioner would be entitled to a renewal of the permissions which were granted to it. Otherwise, even if the orders impugned were to be set aside, both the Board and the Government would have been justified in requesting the Madras High Court to remand the proceedings back to the competent statutory authorities for re‑determination afresh. This course of action was obviated on the petitioner submitting to the Madras High Court that it was ready and willing to have the Madras High Court evaluate the entirety of the matter in its full perspective., The petitioner having agreed to this course of action, we are not inclined to entertain the submission that the Madras High Court has committed an error of jurisdiction. The hearing before the Madras High Court spanned forty‑two days and the Madras High Court has rendered a judgment on all factual and legal aspects, after considering as many as thirty‑eight issues., In considering the merits of the challenge, the Supreme Court of India would have to apply settled principles of judicial review bearing on whether the findings which have been arrived at by the Madras High Court are borne out from the record or, conversely, are based on misappreciation of law and fact. The Supreme Court of India may exercise its power under Article 136 sparingly and only when exceptional circumstances exist which justify the exercise of its discretion., From the material which has emerged on the record and having considered the rival submissions, we are of the view that the areas which are matters of serious concern are: the failure of the petitioner at the material time to remove the copper slag which was dumped indiscriminately at almost eleven sites in the vicinity including private land adjoining the river; the failure to abide by the conditions in the consent to operate governing the disposal of gypsum; the failure to obtain authorisation for the disposal of hazardous waste; and the failure of the petitioner to continue remediating the pollution caused by it despite findings and directions by multiple judicial fora at different points in time, including by the Supreme Court of India in 2013., The judgment of the Supreme Court of India in Sterlite Industries (supra) afforded the petitioner sufficient opportunity to take remedial action. The consequence of the adjudication by the Supreme Court of India was not to obliterate the environmental violations which had preceded it. This Court came to the conclusion that there indeed were environmental violations, which were additionally compounded by a suppression of material facts. As the Supreme Court of India held: “We now come to the submission of Mr Prakash that we should not grant relief to the appellants because of the misrepresentation and suppression of material facts made in the special leave petition that the appellants have always been running their plant with statutory consents and approvals and misrepresentation and suppression of material facts made in the special leave petition that the plant was closed at the time the special leave petition was moved and a stay order was obtained from this Court. There is no doubt that there has been misrepresentation and suppression of material facts made in the special leave petition but to decline relief to the appellants in this case would mean closure of the plant of the appellants. For these considerations of public interest, we do not think it will be a proper exercise of our discretion under Article 136 of the Constitution to refuse relief on the grounds of misrepresentation and suppression of material facts in the special leave petition.”, The Supreme Court of India in the earlier round of litigation would conceivably have been justified in rejecting the challenge to the judgment of the Madras High Court but nonetheless held that closure was a matter of last option and that an opportunity for remediation ought to be granted. At the same time, while imposing an environmental compensation quantified at Rs. 100 crores, the Supreme Court of India clarified that the Tamil Nadu Pollution Control Board would be acting within the scope of its statutory powers including in directing closure, in the future. As the Supreme Court of India held: “We make it clear that this judgment will not stand in the way of the Tamil Nadu Pollution Control Board issuing directions to the appellant Company, including a direction for closure of the plant, for the protection of environment in accordance with law. We also make it clear that the award of damages of Rs 100 crores by this judgment against the appellant Company for the period from 1997 to 2012 will not stand in the way of any claim for damages for the aforesaid period or any other period in a civil court or any other forum in accordance with law.”, The tenor of the reasoning and the directions of the Supreme Court of India, therefore, leave no manner of doubt that the industrial establishment was not exculpated of its liability for environmental violations. The Madras High Court has, in this backdrop, undertaken a copious analysis of the grounds on which action adverse to the unit has been taken both by the Tamil Nadu Pollution Control Board and the State Government., In the notes of submissions which have been tendered before the Supreme Court of India, an alternative perspective on facts has been sought to be established. We are not inclined in the exercise of the jurisdiction under Article 136 of the Constitution to re‑appreciate the findings of facts which have been arrived at by the Madras High Court. The Madras High Court, it must be noted, was exercising its jurisdiction under Article 226 of the Constitution to judicially review the findings of statutory authorities and bodies entrusted with requisite powers under the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981. Apart from the exercise of jurisdiction by the statutory authorities, the proceedings before the Supreme Court of India had been preceded by an evaluation by the Madras High Court which is not shown to suffer from error that would warrant the invocation of the jurisdiction under Article 136 of the Constitution. No special circumstances exist which justify the exercise of discretion by the Supreme Court of India nor is the conscience of the Supreme Court of India shocked by the judgment of the Madras High Court., The closure of the industry is undoubtedly not a matter of first choice. The nature of the violations and the repeated nature of the breaches coupled with the severity of the breach of environmental norms would in the ultimate analysis have left neither the statutory authorities nor the Madras High Court with the option to take any other view unless they were to be oblivious of their plain duty. We are conscious of the fact that the unit, as the Supreme Court of India observed in its decision in 2013, has been contributing to the productive assets of the nation and providing employment and revenue in the area. While these aspects have undoubted relevance, the Supreme Court of India has to be mindful of other well‑settled principles including the principles of sustainable development, the polluter pays principle, and the public trust doctrine. The polluter pays principle, a widely accepted norm in international and domestic environmental law, asserts that those who pollute or degrade the environment should bear the costs of mitigation and restoration. This principle serves as a reminder that economic activities should not come at the expense of environmental degradation or the health of the population., In addition, the public trust doctrine, recognized in various jurisdictions, including India, establishes that the State holds natural resources in trust for the benefit of the public. It reinforces the idea that the State must act as a steward of the environment, ensuring that the common resources necessary for the well‑being of the populace are protected against exploitation or degradation. These principles underscore the importance of balancing economic interests with environmental and public welfare concerns. While the industry has played a role in economic growth, the health and welfare of the residents of the area is a matter of utmost concern. In the ultimate analysis, the State Government is responsible for preserving and protecting their concerns., As consistently held in numerous decisions of the Supreme Court of India, the unequivocal right to a clean environment is an indispensable entitlement extended to all persons. Air, which is polluted beyond the permissible limit, not only has a detrimental impact on all life forms including humans, but also triggers a cascade of ecological ramifications. The same is true for polluted water, where the pervasive contamination poses a profound threat to the delicate balance of ecosystems. The impact of environmental pollution and degradation is far reaching: it is often not only severe but also persists over the long term. While some adverse effects may be immediately evident, the intensity of other kinds of harm reveals itself over time. Persons who live in surrounding areas may develop diseases which not only result in financial burdens but also impact the quality of life. The development and growth of children in these communities may become stunted, creating a tragic legacy of compromised potential. Basic necessities, such as access to potable water, may not be met, exacerbating the challenges faced by these already vulnerable populations. Undoubtedly, such adverse effects are felt more deeply by marginalised and poor communities, for whom it becomes increasingly difficult to escape the cycle of poverty., The Supreme Court of India is also alive to the concept of intergenerational equity, which suggests that present residents of the earth hold the earth in trust for future generations and at the same time the present generation is entitled to reap benefits from it. The planet and its invaluable resources must be conscientiously conserved and responsibly managed for the use and enjoyment of future generations, emphasizing the enduring obligation to safeguard the environmental heritage for the well‑being of all., It is an undeniable and fundamental truth that all persons have the right to breathe clean air, drink clean water, live a life free from disease and sickness, and for those who till the earth, have access to uncontaminated soil. These rights are not only recognized as essential components of human rights but are also enshrined in various international treaties and agreements, such as the Universal Declaration of Human Rights, the Convention on Biological Diversity, and the Paris Agreement. As such, they must be protected and upheld by governments and institutions worldwide, even as we generate employment and industry. The ultimate aim of all our endeavours is for all people to be able to live the good life. Without these basic rights, increased revenue and employment cease to have any real meaning. It is not merely about economic growth but about ensuring the well‑being and dignity of every individual. As we pursue development, we must prioritize the protection of these rights, recognizing that they are essential for sustainable progress. Only by safeguarding these fundamental rights can we truly create a world where everyone has the opportunity to thrive and prosper., We have heard these proceedings for several days and after a careful evaluation of the factual and legal material, we have come to the conclusion that the Special Leave Petitions do not warrant interference under Article 136 of the Constitution., For the above reasons, the Special Leave Petitions shall stand dismissed., Pending applications, if any, stand disposed of., Table of Contents B. Civil Appeal Nos. 276-285 of 2021, The Tamil Nadu Pollution Control Board is aggrieved by the observations contained in the impugned judgment of the Madras High Court dated 18 August 2020 about its failure to exercise its regulatory functions in a timely and conscientious manner and has preferred appeals in this regard. We are of the view that the Madras High Court was justified in making the observations in regard to the lack of alacrity on the part of the Pollution Control Board in discharging its duties. The observations of the Madras High Court do not call to be either expunged or obliterated from the record., The Civil Appeals are accordingly dismissed., Pending applications, if any, stand disposed of.
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id_1494
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Mr. Sabyasachi Chatterjee, Mr. Akashdeep Mukherjee, Mr. Ankur Sharma for the Petitioner. Mr. Nilotpal Chatterjee for the State. By this public interest litigation the petitioner who is a practicing Advocate of this Court highlights a very important issue regarding the drop out of students from various schools, in particular government schools., It is the case of the writ petitioner that during the COVID-19 pandemic, on account of the classes being disrupted and lack of facility for online classes etc., there were a large number of students who dropped out from government schools. Therefore, the petitioner seeks appropriate direction to the respondents to remit the students., The petitioner, being an Advocate practicing before this Court, may place any suggestions before the Commissioner of School Education. The Commissioner of School Education shall also call for reports from various districts as regards the student strength in the respective schools pre COVID-19 and post COVID-19, and necessary steps can be taken to sensitize the parents of those children regarding the need for education. Steps have to be taken to provide a clean atmosphere, good drinking water, mid‑day meal etc., to bring back the drop‑out students to school. Any suggestion as may be suggested by the writ petitioner shall also be taken note of by the Commissioner of School Education. In this regard wide publication can be given in the media and television channels impressing upon the need for good education for the children regardless of whatever strata the parents come from., We hope and trust that the observations made by us in this order will be taken in the right spirit and the government will take proactive steps to the grievance expressed. With the above observation, the writ petition stands disposed of.
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id_1496
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Shri Jagdishchandra son of Ramesh Valvi, Age: 59 years, Occupation: Agriculture, Resident of Mahavir Nagar, Plot No. 1, Old Yawal Road, Chopda, Taluka Chopda, District Jalgaon. The State of Maharashtra, Through its Principal Secretary, Social Justice and Special Assistance Department, Hutatma Rajguru Chowk, Madam Cama Road, Mantralaya, Mumbai 32. The Principal Secretary / President, Legislative Assembly, Maharashtra State, Mumbai. The Honourable Governor, Raj Bhavan, Maharashtra State, Fort, Mumbai 32. The Deputy Director and Member Secretary, Scheduled Tribe Certificate Verification Committee, Nandurbar, District Nandurbar. The Election Commission of India, Nirvachan Sadan, Ashoka Road, Pandit Pant Marg Area, Sansad Marg Area, New Delhi, Delhi 110001. The State Election Commission, New Administrative Bhavan, Hutatma Rajguru Chowk, Madam Cama Road, Mumbai 32, Maharashtra State. The Commissioner, Jalgaon Municipal Corporation, Jalgaon, District Jalgaon. Advocate for petitioner: Mr Y B Bolkar, Mr Mahesh S Deshmukh. Advocate for applicant in CA GP for the respondent State: Mr D R Kale. Advocate for respondent no. 5: Mr A B Kadethankar with Mr Alok Sharma., In spite of the immunity under Article 361 of the Constitution of India, the petitioner has impleaded the Honourable Governor as respondent no. 3. We directed the petitioner to delete respondent no. 3. No notice was issued to the respondents but they appeared suo motu., We have heard the learned advocate for the petitioner, the learned Government Pleader, learned advocate Mr Kadethankar and Mr Sharma who appear for respondent no. 5 – Election Commission of India, and Mr Deshmukh who appears for the intervenor., By invoking the powers of the Maharashtra High Court under Article 226 of the Constitution of India, the petitioner is seeking a declaration that the intervenor, who was elected as a member of the State Legislative Assembly from Chopda (ST) constituency in the 2019 elections, was not qualified to file her nomination from the reserved category when her scheduled tribe certificate was cancelled and the decision has reached finality up to the Supreme Court., Learned advocate Mr Bolkar would submit that since it has now finally been concluded that the intervenor was not qualified to file a nomination to a seat which was reserved for the scheduled tribe category, it is not a disqualification which she can be said to have incurred after she was elected. She was basically not eligible to contest the election in view of the provisions of section 5 of the Representation of the People Act, 1951. He would submit that though the petitioner has filed an election petition as contemplated under section 80-A of the Representation of the People Act, independently, the respondents ought to have taken immediate steps but are sitting over and not taking any decision and thereby have tacitly permitted the intervenor to occupy the seat to which she was never qualified., Mr Bolkar relies upon the decision in K. Venkatachalam v. A. Swamickan and another (1999) 4 SCC 526, to submit that the High Court in an appropriate case like the present one, in exercise of the powers under Article 226 of the Constitution of India, can declare the election of the intervenor void and can declare the seat vacant even without resorting to the election petition under section 80-A of the Representation of the People Act., Mr Bolkar would also refer to the following decisions: i) Sujit Vasant Patil v. State of Maharashtra and others, 2004 (3) Mh L J 1109; ii) Ramesh Suresh Kamble v. State of Maharashtra and others, 2007 (1) Mh L J 423; iii) Chairman and Managing Director, Food Corporation of India and others, (2017) 8 Supreme Court Cases 670; iv) Brudaban Nayak v. Election Commission of India and another, AIR 1965 SC 1892., The learned Government Pleader and Mr Deshmukh for the intervenor, at the outset, strongly object to the attempt by the petitioner to simultaneously resort to the election petition filed by him under section 80-A of the Representation of the People Act and filing the present petition invoking the powers under Article 226 of the Constitution on the same set of facts. They would submit that once having instituted the election petition, he ought not to have resorted to a separate proceeding in the form of the present writ petition., They would further submit that although the intervenor’s scheduled tribe certificate has been conclusively cancelled, that would not result in automatic disqualification. In view of section 5 of the Representation of the People Act, the definition of disqualification contained in clause (b) of section 7 read with section 100 of the Act clearly demonstrates that a ground for declaring the election void because the returned candidate was not qualified to be elected can be addressed only by way of an election petition. They would submit that Articles 190(3) and 192(1) of the Constitution of India and the procedure prescribed thereunder would be applicable to post‑election disqualification incurred by a returned candidate. To buttress their submission, they rely upon the decisions of the Supreme Court in Election Commission of India v. Saka Venkata Rao, AIR 1953 SC 210, subsequently followed in the matter of Brudaban Nayak v. Election Commission of India and another (supra)., The learned Government Pleader and Mr Deshmukh would submit that the consequences of invalidation of the scheduled tribe claim of the intervenor as contemplated under sections 10 and 11 of the Maharashtra Scheduled Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 (Maharashtra Act No. XXIII of 2001) would not be applicable in this case. As contemplated under sections 10 and 11, they would be applicable inter alia to elections to local bodies constituted under various local self‑government statutes such as the Maharashtra Village Panchayat Act, 1981, Maharashtra Municipal Council Act, Maharashtra Municipal Corporation Act etc. They would submit that the requirement of a caste validity certificate under various provisions of these statutes is conspicuously absent in the Representation of the People Act and the Conduct of Election Rules, 1961 which merely require a candidate filing nomination for election to a seat reserved for the State Legislative Assembly to file a declaration. Therefore, there cannot be any automatic disqualification in respect of the pre‑existing ineligibility of a candidate who is returned to the State Legislative Assembly in elections held under the Representation of the People Act and the conduct of election rules framed thereunder., They would submit that the decisions in the matters of Sujit Patil, Ramesh Kamble and Food Corporation of India (supra) would not enure to the benefit of the petitioner. They would submit that in the matter of Venkatachalam (supra), the Supreme Court had upheld the decision of the High Court exercising the powers under Article 226 of the Constitution of India, firstly because it was a case of impersonation by the returned candidate whose name was not appearing on the electoral roll and that the time for filing the election petition under section 80-A of the Representation of the People Act had expired., We have considered the rival submissions and perused the papers., At the outset, it is necessary to note that admittedly, the petitioner has filed an election petition under section 80-A of the Representation of the People Act which is pending before the Maharashtra High Court. When the petitioner has already invoked the statutory remedy available to him in law, his conduct in simultaneously seeking to invoke the powers of the Maharashtra High Court under Article 226 of the Constitution cannot be countenanced. In none of the aforementioned matters referred to by both sides has a situation been comprehended where both such remedies can be invoked simultaneously., In the matter of Venkatachalam (supra), an impersonator whose name was not even appearing in the electoral roll was elected, the time for filing an election petition under section 80-A of the Representation of the People Act had elapsed and, in the peculiar facts and circumstances, the Supreme Court concluded that the High Court had rightly exercised jurisdiction and powers under Article 226. In the present matter, the petitioner has already filed an election petition and should have waited for the result instead of circuitously seeking the same relief by requesting the Maharashtra High Court to exercise powers under Article 226. For this reason alone, the petition is liable to be dismissed., Independently, even if the matter is considered on merits, it is conspicuous to note that the intervenor has been elected as a member of the Legislative Assembly in light of the provisions of the Constitution and the Representation of the People Act. Unlike the specific provisions contained in various State Legislations in respect of local self‑government, neither the Constitution nor the Representation of the People Act contains any stipulation regarding presentation of a caste/tribe validity certificate when a candidate intends to contest the election to the State Legislative Assembly on a seat reserved for that specific category. The Act and the conduct of election rules merely require a declaration to be filled in as is conspicuous from Article 332 of the Constitution and sections 5 and 33(2) of the Act., The provisions of the Maharashtra Act No. XXIII of 2001 would not be applicable to and would not regulate the operation of the provisions contained in the Representation of the People Act. The consequences stipulated in sections 10 and 11 of that Act regarding withdrawal of benefits obtained on the basis of a false caste certificate and prosecution would only come into play in respect of elections to local authorities. In view of the definition of local authority contained in section 2(c) of the Maharashtra Act No. XXIII of 2001, it would mean municipal corporation, municipal council, zilla parishad, panchayat samiti, industrial township, nagar panchayat and village panchayat., Consequently, merely because the scheduled tribe certificate of the intervenor has been cancelled and the decision has reached finality, the consequences are not automatic as contemplated under sections 10 and 11 of the Maharashtra Act No. XXIII of 2001. The remedy of resorting to the election petition under section 80-A of the Representation of the People Act will have to be pursued for unseating a returned candidate to the State Legislative Assembly who was not qualified to take part in the election to the Legislative Council, which specifically lays down that no election shall be called in question except by an election petition presented in accordance with the provisions of that Act., The petition is dismissed., The pending civil application is disposed of.
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id_1497
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Petitioner: Kuldeep Tiwari and another. Respondent: Union of India through Secretary, Ministry of Information and Broadcasting and 13 others. Counsel for petitioner: Ranjana Agnihotri, Sudha Sharma. Counsel for respondent: Additional Solicitor General of India, Ashwani Kumar Singh, Chief Standing Counsel, Honourable Rajesh Singh Chauhan, Judge; Honourable Shree Prakash Singh, Judge., On hearing the application, Ms. Ranjana Agnihotri, learned counsel for the petitioners, appeared along with Sri S.B. Pandey, learned Senior Advocate and Deputy Solicitor General of India, assisted by Sri Ashwani Kumar Singh for opposite parties 1 and 3, Sri Vinod Kumar Shahi, learned Additional Advocate General of Uttar Pradesh assisted by Sri Shailendra Kumar Singh, learned Chief Standing Counsel for the State, and Sri Vivek Shukla, learned counsel for opposite party 2., By means of this application, the learned counsel for the petitioners prayed that the dialogue writer of the film 'Adipurush', namely Sri Manoj Muntashir alias Manoj Shukla, be impleaded as opposite party 3. The reasons shown in the application appear to be appropriate; therefore, the impleadment application is allowed. Sri Manoj Muntashir alias Manoj Shukla is hereby impleaded as opposite party 15 with his correct address to be recorded during the course of the day. Notices are to be issued to opposite party 15. Steps are to be taken within seven days. The office is directed to proceed accordingly., Ms. Ranjana Agnihotri, learned counsel for the petitioners, filed the amended copy of the writ petition, which is taken on record., In the amended writ petition, she drew the attention of the Supreme Court of India to Annexure 1, which contains coloured photographs of certain parts of the film 'Adipurush'. She highlighted objectionable portions in the photographs and referred to the Guidelines for Certification of Films for Public Exhibition issued under Subsection 2 of Section 5-B of the Cinematograph Act, 1952, to show that not only some dialogues but also the picturisation of Lord Rama, Devi Sita, Lord Hanuman, Ravan and the wife of Vibhishana, etc., have not been depicted in accordance with the guidelines., Paragraph 2 (viii), (ix) and (xii) of the Guidelines framed under the Act read as follows: 'In pursuance of the above objectives, the Board of Film Certification shall ensure that (viii) such dual‑meaning words obviously catering to baser instincts are not allowed; (ix) scenes degrading or denigrating women in any manner are not presented; (xii) visuals or words contemptuous of racial, religious or other groups are not presented.', Therefore, Ms. Ranjana Agnihotri requested that the aforesaid movie be immediately banned, as it adversely affects the sentiments of people who worship Lord Rama, Devi Sita, Lord Hanuman, etc., and the manner in which the characters of the Ramayana have been depicted could create serious disharmony in society. She further stated that she could not ascertain the source of the film's content, as nothing of that nature is narrated in the Valmiki Ramayana or Tulsikrit Ramcharitmanas., Sri S.B. Pandey, learned Deputy Solicitor General of India, submitted that if the scenes and dialogues reproduced in the writ petition are indeed from the film, he can verify this fact after seeking instructions from the competent authority. He referred to Section 6 of the Cinematograph Act, 1952, which provides that in such circumstances the revisional power vests with the Central Government, and noted that the Board of Film Certification may not revisit a certificate already issued to the film. He further stated that he has been informed that a disclaimer is shown before the film, indicating that the film is not the Ramayana. He questioned how such a disclaimer can convince the public when the film depicts Lord Rama, Devi Sita, Lord Lakshman, Lord Hanuman, Ravan, Lanka, etc., and said he will seek instructions on that point., Having regard to the fact that Sri S.B. Pandey has not received complete instructions from the Union of India, particularly from the Ministry of Information and Broadcasting, opposite party 1, and the Board of Film Certification, opposite party 3, he is granted 24 hours to seek complete instructions. While producing the instructions, he shall also apprise the Supreme Court of India as to whether opposite party 1 is considering taking appropriate steps in the interest of the public by invoking its revisional power under Section 6 of the Act, 1952., The case is listed for 28 June 2023 at 02:15 PM, together with Writ Petition (In Limine) No. 586 of 2023, Naveen Dhawan versus Union of India and another. (Honourable Shree Prakash Singh, Judge) (Honourable Rajesh Singh Chauhan, Judge).
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id_1498
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The petitioners are: (1) W.M.P. (Madras) No. 21615 of 2022, S. Lawrence Vimalraj; (2) The Registrar (Judicial), Madras High Court, Madurai Bench, Madurai – 623023; (3) Permanent Secretariat for Designation of Senior Advocate, represented by the Registrar (Judicial), Madras High Court, Chennai – 600104; (4) The Registrar (Administration), Madras High Court, Chennai – 600104; and (5) National Commission for Women, 377J+7J5, PWD Estate, Chepauk, Triplicane, Chennai – 600005. The respondents are the above‑named entities. The writ petition is filed under Article 226 of the Constitution of India seeking a writ of mandamus directing respondents 1 to 5 to specifically address the equal status or at least a 30 % reservation for women among the advocates seeking conferment of Senior Advocate status from the first list dated 31‑10‑2020 issued by respondent 2 and the second list dated 04‑08‑2022 issued by notification No. 5909 5/2020/SCS and notification No. 7122 8‑A/2022/SSA issued by respondent 3, for advocates practising in the Chennai and Madurai Benches within a time frame that may be stipulated by this Honourable Madras High Court., For the petitioner, Mr. B. Ravi Raja appeared on behalf of Mr. R. R. Kannan and Mr. M. Sivakumar. For the respondents, Mr. M. Santhanaraman, Panel Counsel for Madras High Court, appeared for respondents 1, 2 and 3. Ms. Chitra Sampath, Senior Advocate, appeared for Ms. D. Prasanna along with Ms. S. Vennila, Ms. D. Latha, Ms. A. Parveen and Ms. Sheik Mehrunnisa Kasim as intervenors., The captioned Writ Miscellaneous Petition (WMP) was listed before a Division Bench pursuant to an order dated 13‑12‑2022 made by the Honourable Acting Chief Justice on the administrative side. The petition seeks equal numbers or a 30 % reservation for women advocates in the conferment of the designation of Senior Advocate from the lists of candidates published by notifications dated 31‑10‑2020 and 04‑08‑2022, namely Notification No. 1/2020 (Permanent Secretariat for Designation of Senior Advocate) and Notification No. 2/2022/SSA respectively., On 19‑12‑2022, the matter was listed for hearing. Ms. Sudarshana Sunder, counsel for the petitioner, stated that she would not argue the matter as a matter of propriety because she is one of the applicants for senior‑counsel designation. Mr. B. Ravi Raja, counsel for the petitioner, confirmed that he was representing the petitioner. Ms. D. Prasanna, counsel for the Women Lawyers’ Association, informed the Court that an implead petition (SR No. 140589/2022 dated 13‑12‑2022) had been filed and requested that the matter be rescheduled for Monday, 19‑12‑2022, so that the second named counsel, Mr. M. Sivakumar, could travel from Madurai and be present., The Court directed the Registry to process the implead application, remove any objections, and list the matter on Monday, 19‑12‑2022 at 02:15 p.m. The petitioners were permitted to be heard as intervenors, and audience was accorded to the learned Senior Advocate., Learned counsel for the petitioner submitted that the petition does not challenge the notifications or the proceedings of the Permanent Committee. The petitioner’s counsel also clarified that the notifications – Notification No. 1/2020 dated 31‑10‑2020 and Notification No. 2/2022 dated 04‑08‑2022 – have not been assailed, but the prayer for reservation may be considered. The petitioner Association claims to represent approximately 5,000 women lawyers practising at the Principal Seat and the Madurai Bench of the Madras High Court., Learned Senior Advocate for the intervenor submitted that the remarks and views of the Permanent Committee on all 161 applicants should be placed before the Full Court, which alone has the authority to decide the conferment of Senior Advocate status. The Senior Advocate relied on Rule 11 of the Madras High Court Designation of Senior Advocates Rules, 2020, and on Rule 7(5) of the same Rules, stating that only names listed and cleared by the Permanent Committee are to be placed before the Full Court for approval. The Senior Advocate also cited paragraph 62 of the Indira Jaising case, emphasizing that the power to designate Senior Advocates resides with the Full Court., Learned counsel for respondents 1, 2 and 3 submitted that the writ petition is not maintainable because the petitioner has no locus; he is neither a woman nor an applicant for Senior Advocate designation, and the petition is not a public‑interest litigation. The respondents argued that only nine women candidates had applied for Senior Advocate status, making a 30 % reservation impracticable, and that the selection process had been transparent and in accordance with the Rules., The petitioner’s counsel reiterated that the issue of conferment of Senior Advocate status is pending before the Supreme Court and that the petition is not a public‑interest litigation but an individual grievance seeking fairness and transparency in the designation process., After careful consideration, the Court held that the prayer in the writ petition is not entertainable because the petitioner lacks locus and the intervenor’s submissions are outside the scope of the main petition. The Court noted that the petitioner’s affidavit expressly states that the petition is not a public‑interest litigation. Consequently, the petition is dismissed., The Court further observed that the designation of Senior Advocate under Section 16 of the Advocates Act, 1961 is a privilege, not a post, and therefore a reservation of 30 % is misplaced. The Court referred to the judgment of Justice V. Ramasubramanian in W.A. (Madras) No. 1260 of 2014, which distinguished between a post and a privilege. The Court also noted that the Madras High Court Rules, 2020, do not provide for any reservation, and that the Supreme Court guidelines on the conferment of Senior Advocate status (2018) similarly contain no reservation provision., In view of the foregoing, the Court orders that the writ petition be dismissed with no order as to costs. No notice shall be issued to respondents 4 and 5.
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id_1498
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In the light of the narrative thus far, the captioned writ petition is dismissed. The connected writ miscellaneous petition is also dismissed. There shall be no order as to costs., I had the benefit of going through the thoughtful and well‑reasoned order of my esteemed brother, Honourable Justice M. Sundar. I entirely concur with the views and conclusions which my erudite brother has drawn, based on a remarkable process of reasoning., While concurring with my learned brother Honourable Justice M. Sundar, I wish to trace the history and evolution of the powers of the High Court to designate an advocate as a senior advocate, from the Letters Patent of 1865 to the Advocates Act of 1961., Before the Advocates Act of 1961 came into force, the power to admit and enroll advocates, vakils and attorneys vested with this Court under the Letters Patent of 1865. Clause 9 of the Letters Patent of 1865 reads as follows: “Clause 9: Powers of High Court admitting advocates, vakils and attorneys: And we do hereby authorise and empower the said High Court of Judicature at Madras to approve, admit and enrol such and so many advocates, vakils and attorneys as to the said High Court shall seem meet; and such advocates, vakils and attorneys shall be and are hereby authorised to appear for the suitors of the said High Court, and to plead or to act, or to plead and act, for the said suitors, according as the said High Court may by its rules and directions determine, and subject to such rules and directions.”, Even after the Indian Bar Councils Act of 1926 came into force, the power to enroll advocates was retained by the High Court under Section 9 of that Act. Despite the above powers, the 1926 Act did not make any distinction between senior advocates and other advocates., Further, the expression “senior advocate” is found in the Federal Court of India Rules of 1937. Order VII, Rules 2 to 4 of those rules read as follows: “Rule 2. The roll of advocates shall be in two parts, one containing the names of senior advocates and the other the names of other advocates. Rule 3. A senior advocate shall have precedence over other advocates who are not senior advocates, and the provisions of the First Schedule to these rules shall apply with respect to senior and other advocates. Rule 4. A person shall not be entitled to be enrolled as an advocate unless he is, and has been for not less than ten years in the case of a senior advocate or five years in case of any other advocate, enrolled as an advocate in the High Court of a Province.”, Thus, Rule 3 of Order VII of the Federal Court of India Rules of 1937 recognises the senior advocates’ right of precedence over other advocates. How the system of designating senior advocates developed and flourished in England has been explained by the Honourable Supreme Court of India in Indira Jaising v. Supreme Court of India, reported in (2017) 9 SCC 766, paragraphs 8 to 16 and 20., It is relevant to note that the All India Bar Committee in 1953, headed by Honourable Justice S. R. Das of the Supreme Court of India, deliberated the issue of whether a distinction should be maintained between senior advocates and other advocates. Despite elaborate discussions the Committee could not arrive at a consensus and therefore refrained from making any proposal either in favour or against such a distinction., Thereafter, the issue was taken up by the Law Commission of India. The Law Commission, in its Fourteenth Report of 1956, did not accept the views of the All India Bar Committee. However, it was of the view that the matter should be left to the Supreme Court and the High Court to invite a member of the Bar for conferring such a designation instead of asking advocates to make an application. The Commission made the following observations: “Paragraph 34. Division Desirable: A division of the Bar such as we envisage should result in achieving several objectives. To the seniors it will mean the recognition of a successful career at the Bar by the conferment of a privilege which will give them an honoured position among members of the profession and enable them to concentrate on important work yielding as large or perhaps a larger income. It should result in putting work in the hands of the junior members of the Bar, heartening them and raising their morale, which in turn should attract an able class of men to the profession. The long period of waiting at an over‑crowded Bar operates as the chief deterrent to many who are otherwise anxious to enter upon a legal career. The distribution of work among a larger number should also help to prevent delays caused by adjournments. Paragraph 35. That appears to us to be too pessimistic a view. The formulation of all schemes must be based on the assumption of the existence of certain standards of integrity and character. In England the system of Queen’s Counsel being chosen by the Lord Chancellor has prevailed for many years and appears to have worked satisfactorily. We do not see any reason why such a system should not be capable of being worked in India. Paragraph 36. Instead of leaving it to the members of the Bar to make an application for enrollment in the senior list as is done in England for being enrolled as Queen’s Counsel, we recommend that it should be left to the Chief Justice and the Judges of the High Court or the Supreme Court to invite a member of the Bar to put himself on the list of senior advocates. In making an offer to an advocate to be enrolled on the list of senior advocates, the Chief Justice and the Judges will doubtless be guided by the consideration that the advocate invited deserves the distinction by virtue of his ability, status and reputation at the Bar. Paragraph 38. The question of the designation to be given to the senior advocates was canvassed before us in evidence. It was suggested that following the practice in England they may be designated ‘President’s Counsel’ or ‘Republic Counsel’. Our inclination is to adhere to the nomenclature which has been in vogue ever since the establishment of the Federal Court in 1937 and give them the designation of ‘senior advocates’.”, The report of the Law Commission and its observations finally culminated in statutory division into senior advocates under Section 16 of the Legal Practitioners Bill of 1959, which was later enacted as Section 16 of the Advocates Act of 1961., It is relevant to note that the Honourable Supreme Court, in the judgment In re T. V. Choudhary reported in (1987) 3 SCC 258, paragraph 10, held: “By virtue of the pre‑eminence which senior counsel enjoy in the profession, they not only carry greater responsibilities but they also act as a model to the junior members of the profession. A senior counsel more or less occupies a position akin to a Queen’s Counsel in England next after the Attorney General and the Solicitor General. It is an honour and privilege conferred on advocates of standing and experience by the Chief Justice and the Judges of this Court. They thus become leading counsel and take precedence on all counsel not having that rank. A senior counsel, though he cannot draw up pleadings of the party, can nevertheless be engaged to settle, i.e., to put the pleadings into proper and satisfactory form and hence a senior counsel settling pleadings has a more onerous responsibility as otherwise the blame for improper pleadings will be laid at his doors.”, Designating an advocate as a senior advocate is a matter of honour and privilege conferred upon a member of the Bar. This Court is of the view that such privilege and honour cannot be based on reservation; it must be purely based on merit, ability and successful career of the member of the Bar irrespective of gender., In Adv. P. B. Sahasranaman v. Kerala High Court, reported in AIR 2018 Kerala 105, paragraph 8, the Kerala High Court held: “The first question that would arise is whether an advocate can consider it to be his right to be declared a senior advocate or can he claim as a matter of right to be declared a senior advocate. The answer is clearly in the negative. Section 16(2) of the Advocates Act emphasises that it is a distinction conferred and not something that comes about automatically upon achieving known or predetermined standards. It is a privilege based upon the opinion of the Court considering ability, standing at the Bar or special knowledge or experience in law. Thus, it is a subjective decision though based on objective considerations. Accordingly, such a claim cannot be made as a matter of right.”, From the above, it is clear that Section 16(2) of the Advocates Act emphasises that the designation is a distinction conferred and not an automatic right. It is a privilege based upon the Court’s opinion considering ability, standing at the Bar or special knowledge or experience in law. Therefore, a claim to be designated a senior advocate cannot be made as a matter of right., Similarly, in T. N. Raghupathy v. High Court of Karnataka, reported in 2020 SCC OnLine Kar 93, paragraph 151(d) to (n) the Karnataka High Court held: “The power to designate an advocate as a senior advocate vests only in a full court of a High Court. The Chief Justice of a High Court, the two senior most judges and the Advocate General of the State are ex‑officio members of the Permanent Committee and cannot be replaced. The function of the Permanent Committee is firstly to direct its secretariat to collect information about advocates who have applied for designation, and secondly to examine each case, hold interviews and assign points out of 100. The overall assessment made by the Permanent Committee shall be placed before the full court for decision. The full court is not bound by the assessment or points assigned and may agree, disagree or partially agree. The permanent committee’s exercise is not an examination or selection process. A writ court, while exercising its power of judicial review under Article 226, cannot go into the correctness of the marks unless the process is vitiated by gross illegality, bias, mala fides or is so arbitrary that no reasonable person can make such an assessment. The decision of the full court is not an exercise of quasi‑judicial power; it is based on the formation of an opinion in accordance with Section 16(2) of the Advocates Act, 1961, that by virtue of his ability, standing at the Bar or special knowledge or experience in law, a particular advocate deserves designation. The full court is not bound to record reasons for grant or decline of designation. Voting by secret ballot is not normally resorted to except in exceptional circumstances.”, From the above, the Karnataka High Court concluded that the Permanent Committee only makes an overall assessment of the candidates. The ultimate power to designate an advocate as a senior advocate lies with the full court, which may take a contrary view if necessary. Even a writ court cannot sit in appeal over the marks given by the Permanent Committee or examine the adequacy of the material before the full court., Considering the above judgments, the designation of senior advocate is only an honour and privilege based on various criteria set out in the rules and the directions issued by the Honourable Supreme Court of India in Indira Jaising v. Supreme Court of India, (2017) 9 SCC 766. One cannot claim as a matter of right to be designated a senior advocate, nor can the designation be treated as a post for which reservation can be sought. Accordingly, I fully concur with the views and opinion of my learned brother Honourable Justice M. Sundar and dismiss the writ petition., The matter was listed under the cause list caption ‘FOR’. We pronounced orders dismissing the captioned main writ petition and the writ miscellaneous petition. Immediately thereafter, Mr. B. Ravi Raja, learned counsel for the writ petitioner, made an oral application seeking a certificate for appeal to the Honourable Supreme Court of India under Article 134‑A(b) of the Constitution of India., The oral application sought a certificate on three grounds: (a) whether the matter could have been transmitted from the Madurai Bench to the Principal Seat of this Court without assigning cogent reasons; (b) whether the writ petition could have been dismissed at the preliminary stage without issuing notice to the fourth respondent; and (c) whether a view said to have been expressed by the Chief Justice of India, as reported in the press, is binding., According to learned counsel, the three questions are substantial questions of law of general importance and the oral application for certificate was predicated on this three‑fold plea., We have carefully considered the oral application. Article 134‑A(b) provides that a certificate for appeal may be granted only in two circumstances: (i) where a substantial question of law as to the interpretation of the Constitution is involved (Article 132(1)); or (ii) where a High Court certifies that a case involves a substantial question of law of general importance (Article 133(1)(a)) and the Court is of the opinion that the question needs to be decided by the Supreme Court (Article 133(1)(b))., At the outset, we concluded that the writ petitioner does not have locus as he is neither an applicant nor an aggrieved person with respect to the reservation that has been claimed. The petitioner has categorically averred in the writ affidavit that he has not filed a public interest litigation and that his claim is under Article 226. Article 134‑A(b) makes clear that an oral application can be made ‘by or on behalf of the party aggrieved’. Therefore, an oral application made by the writ petitioner cannot be treated as an application made by a party aggrieved by this Court., Regarding the first ground, an order dated 13.12.2022 made by the Acting Chief Justice placed the matter before this Bench. A subsequent note dated 22.04.2021 and an earlier order dated 04.03.2021 indicated that writ petitions relating to pan‑state matters or matters arising in districts covered by the Madurai Bench shall be transferred to the Principal Seat at Madras. This answers the first question; consequently, no certificate for appeal is warranted on that ground., The second question concerns dismissal of the writ petition at the admission stage without notice to the fourth respondent. The petition was listed in the admission board and dismissed at that stage, which does not qualify as a preliminary stage. Even assuming it did, the reasons for not issuing notice are set out in paragraph 14 of the lead order and are supported by the concurring order of Justice N. Sathish Kumar. Hence, no ground exists to grant a certificate on this basis., The third question is a non‑starter as it does not turn on any judicial pronouncement. We will not examine a press report of a statement allegedly made by the Chief Justice of India. Accordingly, this ground is also rejected., Further buttressing features include the Indira Jaising case concerning the designation of senior advocates and the judgment In re T. V. Choudhary, which affirm that the designation is a privilege and not a post. Therefore, the certificate for appeal to the Supreme Court is a non‑starter., The expression ‘substantial question of law’ has been elucidated by the Supreme Court in a line of cases, including Sir Chunilal V. Mehta and Sons Ltd. v. Century Spinning and Manufacturing Co. Ltd., AIR 1962 SC 1314; Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179; and Hero Vinoth v. Seshammal, (2006) 5 SCC 545. It is understood to mean a question that is open and not concluded., The Supreme Court, in Indira Jaising, has laid down a framework for the designation of senior advocates, emphasizing uniform parameters and maximum objectivity across all courts in the country. As this is the substratum of the matter, the purported substantial questions of law do not find favour with us., Consequently, the oral application for a certificate for appeal to the Supreme Court under Article 134‑A(b) is rejected.
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Section 438 of the Criminal Procedure Code, Application No. 11900 of 2022. Applicant: Swami Chinmiyanand Saraswati. Opposite Party: State of Uttar Pradesh and another. Counsel for Applicant: Abhinav Gaur, Ankit Shukla, Chandra Prakash Pandey, Ramanuj Tiwari, Senior Advocate. Counsel for Opposite Party: Government Advocate Honourable Samit Gopal, Judge., The matter was heard before Sri Anoop Trivedi, Senior Advocate, assisted by Sri Ankit Shukla, counsel for the applicant, and Sri M. C. Chaturvedi, Senior Advocate and Additional Advocate General for the State of Uttar Pradesh, assisted by Sri B. B. Upadhyay, Additional Advocate General for the State of Uttar Pradesh, who perused the records., The present anticipatory bail application under Section 438 Criminal Procedure Code has been filed by the applicant Swami Chinmiyanand Saraswati, seeking anticipatory bail in the event of arrest in Case Crime No. 1423 of 2011 under Sections 376 and 506 of the Indian Penal Code, Police Station Kotwali, District Shahjahanpur., The facts arising out in the present case are that on 14.11.2011, the opposite party no. 2 moved a letter before the Chief Minister of Uttar Pradesh alleging illegal detention, wrongful confinement, sexual assault and abortion with the prayer to get a FIR lodged against the applicant. On the said application, a FIR was lodged on 30.11.2011 as Case Crime No. 1423 of 2011, under Sections 343, 376, 506, 307, 323, 312 of the Indian Penal Code, Police Station Kotwali, District Shahjahanpur., The allegations in the FIR are that the first informant who is the opposite party no. 2 in the present petition is a resident of Budaun having political background and personal interest in politics, she met the applicant Chinmiyanand Saraswati, resident of Mumuchha Ashram, Shahjahanpur and was being impressed for getting political and spiritual consciousness by the views of the applicant and since the year 2001 came in his contact and started living in his Delhi residence. She visited many committees and religious functions and started having different feeling and getting knowledge up to the year 2004. She became the disciple of the accused. She started having faith on him more than her father and brother. In the year 2004, she was taken to Parmarth Ashram, Haridwar for various religious ceremonies where attitude of applicant changed towards her after which she tried to run away from the said place. In the year 2005, on the strength of the personal guards of the accused, she was detained in a car and brought to Mumuchha Ashram, Shahjahanpur and kept there under confinement. She was being watched by unknown people having firearms. She did not agree for establishing physical relationship but with conspiracy of the cook, some substance was mixed in her food and was given to her after which she became senseless and then under an intoxicated condition, the accused in spite of opposing it, raped her. She could not do anything. Her video was also captured. Since then she used to be sexually assaulted. She used to be kept under watch of armed guards. She even used to visit outside the campus but with people who instructed her not to talk to anyone. She became pregnant twice but the pregnancy was aborted in Bareilly and Lucknow. She was assaulted while being pregnant., Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that initially after lodging of the FIR, the applicant challenged the same before this Court in Criminal Miscellaneous Writ Petition No. 24293 of 2011 (Swami Chinmayanand Saraswati Vs. State of Uttar Pradesh and others) in which vide order dated 22.12.2011 passed by a Division Bench of this Court it was ordered that till the next date of listing or till submission of charge sheet whichever is earlier, no coercive measure be taken against the petitioner therein. The said order is annexure no. 3 to the affidavit and is quoted hereinafter: Learned Additional Advocate General has accepted notice on behalf of respondent nos.1 and 2, while Sri V. D. Chauhan, learned counsel has entered appearance on behalf of the respondent no.3. Both may file counter affidavit within three weeks. Rejoinder affidavit may be filed within two weeks thereafter. List in the week commencing 30th of January 2012. Apart from the other arguments, it is urged that the falsity of the first information report lodged on 30.11.2011 would be evident if it is read along with the blog posted by the complainant on the Facebook of 13th of October 2011. It is urged that the FIR is only a step in aid for blackmailing the petitioner, who refused the complainant to continue to stay in the Ashram, if she wanted to contest elections. It is also urged that inordinate delay and no support from medical evidence points to the fact that the allegations are concocted. On the arguments and the facts disclosed, the petitioner is entitled to interim protection. Accordingly, till the next date of listing or till submission of charge sheet whichever is earlier, no coercive measure be taken against the petitioner in case Crime No.1423 of 2011 under Sections 342, 376, 506, 307, 323, 313 Indian Penal Code Police Station Kotwali Sadar District Shahjahanpur, it goes without saying that the petitioner will make himself available for investigation as and when required by the investigating officer., It is argued that subsequently the said writ petition was disposed of vide order dated 16.7.2012 passed by a Division Bench of this Court and a protection was granted to the applicant, the petitioner therein for stay of his arrest during the pendency of investigation. The said order is placed before the Court which is annexure no. 4 to the present affidavit filed in support of anticipatory bail application and is quoted hereinafter: Rejoinder affidavit filed today is taken on record. This writ petition has been filed with a prayer to quash the FIR dated 30.11.2011 registered as Case Crime No. 1423 of 2011 under Sections 342, 376, 506, 307, 323 and 313 Indian Penal Code, Police Station Kotwali Sadar, District Shahjahanpur. We have heard counsel for the petitioners and the learned Additional Advocate General and perused the record. The arrest of the petitioners was stayed by an interim order passed in this writ petition in respect of aforesaid case. The investigation had not been stayed. It is not known whether the investigation has been completed yet or not. In the case of Mahendra Lal Das v State of Bihar: 2002 Supreme Court Cases (Criminal) 110, it has been held by the Honourable Supreme Court that while interference by Courts at investigation stage is not called for, the investigating agency cannot be given latitude of protracting the conclusion of the investigation without any limit of time. No useful purpose would be served in keeping this petition pending any longer. Accordingly, we dispose of this writ petition with the following directions: 1. The investigation will be completed within three months of the date on which a certified copy of this order along with a self-attested copy of this writ petition is presented before the Investigating Officer; 2. The petitioners will not be arrested during pendency and for the purpose of investigation, provided a certified copy of this order is presented before the police officer as directed above within 15 days from today; 3. Two copies of the order shall also be presented within 15 days before the Superintendent of Police/Superintendent of Police and Chief Judicial Magistrate concerned who shall monitor the investigation as provided by the Apex Court in the case of Sakiri Vasu v. State of Uttar Pradesh: AIR 2008 Supreme Court, 907 and ensure that the investigation is completed within the time stipulated by the High Court; 4. If copies of the order are not presented within the time aforesaid before the Investigating Officer, Superintendent of Police/Superintendent of Police and Chief Judicial Magistrate, the stay of arrest will not operate; 5. The accused will cooperate with the investigation and in case of non-cooperation or otherwise if the Investigating Officer is of the opinion that for any other valid reason the arrest of accused is necessary during or for the purpose of investigation, it will be open to the investigating officer to apply in this writ petition by means of a miscellaneous application giving details of non-cooperation as also details of what kind of cooperation is expected of the accused for completing investigation or why the arrest is otherwise necessary for that interim stay of arrest granted hereby may be vacated; 6. In case the investigation is not completed within the aforesaid time of three months, for some unavoidable reason or due to slackness on part of the investigating officer the Chief Judicial Magistrate concerned shall inform this Court, with the reason for the delay in concluding the investigation within the time specified above. The Registrar General shall place the information in pending Criminal Miscellaneous Writ Petition No. 8495 of 2006, Kamlesh and another v. State of Uttar Pradesh and others where this Court inter alia is monitoring matters with respect to writ petitions which have been disposed off with directions for completing the investigation in three months. 7. If a report under section 173(2) Criminal Procedure Code is decided to be submitted to the Court of Magistrate, in column no. 3 of the prescribed form of the report under section 173(2) Criminal Procedure Code it will be mentioned that the accused have not been arrested on account of the stay order granted by this Court and the Magistrate shall take expeditious steps for appearance/arrest of the accused; 8. If the accused appear before the Court concerned within 3 weeks of the submission of the police report under section 173(2) Criminal Procedure Code and applies for bail, the bail application shall be disposed of expeditiously in accordance with the observations of the Full Bench of this Court in the case of Amrawati and another v. State of Uttar Pradesh, 2004(57) All India Reporter 290, affirmed by the Supreme Court in the case of Lal Kamlendra Pratap Singh v. State of Uttar Pradesh: 2009 (2) Crime 4 (Supreme Court), and reiterated by the Division Bench of this Court in the case of Sheoraj Singh @ Chuttan v. State of Uttar Pradesh & Others: 2009(65)., It is argued that subsequently a charge sheet dated 23.1.2012 was submitted against the applicant under Sections 376 and 506 Indian Penal Code. In so far as the offences under Sections 342, 323, 307, 313 Indian Penal Code are concerned, the same were dropped against him. The copy of the charge sheet has been placed before the Court which is annexure no. 11 to the present affidavit filed in support of anticipatory bail application. It is argued that on the said charge sheet, cognizance was taken vide order dated 29.10.2012 and the applicant was summoned. Against the same, the applicant preferred a Criminal Miscellaneous Application under Section 482 Criminal Procedure Code No. 43082 of 2012 (Swami Chinmayanand Saraswati Vs. State of Uttar Pradesh and another) in which this Court vide order dated 14.12.2012 directed that till the next date, further proceedings of the case shall remain stayed. The said order is placed before the Court which is annexure no. 12 to the present affidavit filed in support of anticipatory bail application, the same is quoted hereinafter: Heard counsel for the applicant. The applicant has earlier filed criminal writ petition before this Court against the proceedings arising out of Case Crime No. 1423 of 2011 under Sections 342, 376, 506, 307, 323, 313 Indian Penal Code. The Division Bench of this Court on 22.12.2011 stayed the arrest of the applicant. There is inordinate delay in filing the FIR and there is no medical evidence to support the charge. The statement of the prosecutrix was recorded under Section 161 Criminal Procedure Code in which it was stated that she has not married to the applicant but she treated him as husband. Investigating Officer also in his report mentioned that there is no evidence of wrongful confinement or abduction of the prosecutrix. The medical evidence does not support that rape was committed. Since the prosecutrix was restrained to continue to stay in the Ashram as she wanted to contest the elections, she has launched the present prosecution to malign the image of the applicant. Notice on behalf of opposite party no. 1 has been accepted by learned Additional Advocate General. Issue notice to opposite party no. 2 returnable within four weeks. List on 17.1.2013. Till the next date, further proceedings of Case No. 4179 of 2012, (State Vs. Swami Chinmayanand Saraswati), Case Crime No. 1423 of 2011, under Sections 376, 506 Indian Penal Code, Police Station Kotwali, District Shahjahanpur shall remain stayed., It is argued that in the meantime the State Government recommended for withdrawal of the prosecution of the present case and the District Magistrate directed the Public Prosecutor to file an application for withdrawal of the prosecution of the said case and as such the said application under Section 482 Criminal Procedure Code in which interim order was passed on 14.12.2012 was got rejected as not pressed on 16.2.2018. The said order is placed before the Court which is annexure no. 13 to the present affidavit filed in support of anticipatory bail application, the same is quoted hereinbelow: Shri R. K. S. Chauhan and Shri N. K. Singh, counsel for the applicant and Additional Advocate General for the State are present. Counsel for the applicant submits that applicant does not want to press the application. Additional Advocate General for the State concede that nobody can be forced to proceed with the case. The application is accordingly rejected as not pressed. Interim order, if any, stand vacated. Office is directed to communicate the order to the court concerned., In the meantime an application under Section 321 Criminal Procedure Code was filed before the Chief Judicial Magistrate Shahjahanpur which came to be dismissed vide order dated 24.5.2018. Against the said order dated 24.5.2018, charge-sheet dated 23.10.2012 and against the entire proceedings, a Criminal Miscellaneous Application under Section 482 Criminal Procedure Code No. 23160 of 2018 (Swami Chinmayanand Saraswati Vs. State of Uttar Pradesh and another) was filed in which a coordinate Bench of this Court vide order dated 25.7.2018 directed that till the next date of listing, no coercive measure shall be taken against the applicant in the said case. The said order is placed before the Court which is annexure no. 14 to the present affidavit filed in support of anticipatory bail application, the same is quoted hereinafter: Heard counsel for the applicant and Additional Advocate General for the State. The present 482 Criminal Procedure Code application has been filed to quash the impugned order dated 24.05.2018, charge sheet dated 23.10.2012 as well as the entire proceedings of Case No. 4179 of 2012 (State Vs. Chinmayanand Saraswati), arising out of Case Crime No. 1423 of 2011, under Sections 376, 506 Indian Penal Code, Police Station Kotwali, District Shahjahanpur, pending in the court of Chief Judicial Magistrate, Shahjahanpur. Counsel for the applicant submits that present 482 Criminal Procedure Code application has become necessary because the earlier application was got dismissed as withdrawn in view of the proceedings having been initiated under Section 321 Criminal Procedure Code by the State to withdraw the prosecution. Subsequently, it has come on record that the application under Section 321 Criminal Procedure Code was in fact filed by the public prosecutor on 12.03.2018. It is thus submitted that the rejection of the said application has given rise to a fresh cause of action to maintain the second 482 Criminal Procedure Code application. Accordingly, the present application is being entertained. On merits, it has been submitted that the order dated 24.05.2018 has been passed on consideration of extraneous material contrary to the law laid down by the Supreme Court. In absence of any ground to reject the application under Section 321 Criminal Procedure Code, the learned Magistrate could not have rejected such application under influence of a letter written by stranger to the dispute and on consideration of evidence and other material which are not required to be examined, at this stage. Matter requires consideration. Notice on behalf of opposite party no. 1 has been accepted by Additional Advocate General. Issue notice to opposite party no.2, fixing 07.9.2018. Opposite parties may file their counter affidavits within four weeks. Rejoinder affidavit may be filed within two weeks thereafter. List on 07.09.2018. Till the next date of listing, no coercive measure shall be taken against the applicant in the aforesaid case., In the said application under Section 482 Criminal Procedure Code, the first informant of the present case who was the opposite party no. 2 therein filed a counter affidavit dated 8.12.2020 in which in para no. 4 and 5, it was stated that since the State Government has withdrawn the prosecution, she is not interested in further pursuing the matter of prosecution of the applicant without entering into the merits of the case. The said counter affidavit is annexure no. 15 to the present affidavit filed in support of anticipatory bail application. Subsequently the Criminal Miscellaneous Application under Section 482 Criminal Procedure Code No. 23160 of 2018 came to be dismissed by coordinate Bench of this Court vide order dated 30.9.2022, the said order is placed before the Court which is annexure no. 16 to the present affidavit filed in support of anticipatory bail application, the same is quoted hereinafter: [1] Heard Sri Dileep Kumar, Senior Advocate assisted by Sri Rajshri Gupta, Sri R. K. S. Chauhan and Sri Manish Singh, counsel for the applicant, Sri Anurag Pandey, counsel for opposite party no. 2, Sri A. K. Sand, Additional Advocate General assisted by Sri Ajay Kumar Sharma, Additional Advocate General for the State and Sri Sandeep Shukla, Advocate assisted by Sri Rafat Raza Khan Advocate for the proposed intervener Sri B. P. Gautam. [2] Pleadings have been exchanged between the parties, and Counter affidavits have been filed by opposite party no.2 Sadhvi Chidarpita Gautam @ Ms Komal Gupta and Mr. Patanjali Mishra, Additional Advocate General have filed their respective counter affidavits on behalf of the State which is already on record. Interestingly, an 'Intervening application' under Chapter XXII Rule 5 of the High Court Rules on behalf of Sri B. P. Gautam, filed by Sri Sandeep Shukla and Sri Rafat Raza Khan Advocate is also on record with the prayer to permit the applicant (Mr. B. P. Gautam, in the capacity of alleged husband of opposite party no.2) be also heard. At the outset, Sri Sandeep Shukla, Advocate was given fullest of the opportunity and audience by the court to establish his case and claim proposed respondent. [3] This petition, invoking extraordinary power of the Court under section 482 Criminal Procedure Code assailing the legality and validity of the order dated 24.05.2018 passed by the Chief Judicial Magistrate, Shahjahanpur in Case No. 1423 of 2011 (State v. Chinmayanand Saraswati), under Sections 376 and 506 Indian Penal Code, Police Station Kotwali, Shahjahanpur is for judicial scrutiny, whereby the learned Magistrate has declined to accord permission to the application given by the Prosecuting Officer under section 321 Criminal Procedure Code i.e. withdrawal of prosecution against the applicant, named above. Thus, this is the focal issue of the entire controversy. In addition to this, since Sri B. P. Gautam, alleged husband of opposite party no. 2, has moved an 'Intervening Application' to be impleaded and heard in the matter and therefore at the threshold stage, the disposal of aforesaid Intervening application is imperative as an ancillary issue to the primary one i.e. validity of the order dated 24.05.2018, passed by learned Chief Judicial Magistrate, Shahjahanpur., So far as Intervening application on behalf of Mr. B. P. Gautam S/o Naresh Pal Singh, alleged husband of Ms. Chidarpita Gautam @ Komal Gupta is concerned, it is relevant that opposite party no.2, the real victim, has already engaged her counsel, Sri Anurag Kumar Pandey, who has filed a detailed counter affidavit on her behalf and she is actively contesting the case on her behalf and at no point of time, she has ever authorized Mr. B. P. Gautam to contest the case on her behalf. Disposal of the Intervening Application [5] The Court has perused the Intervening Application, sworn by Sri B. P. Gautam, who sought permission of the Court to intervene in the present application filed under section 482 Criminal Procedure Code, in addition to opposite party no. 2. [6] The Court wonders that when the victim herself is being duly represented in her count, then what is the locus standi of Mr. B. P. Gautam to intervene into the present issue. In this regard, the Court had an occasion to look into the definition of \victim\ as provided under section 2(wa) of Criminal Procedure Code which reads thus: \victim\ means a person who has suffered any loss or injury caused by reason of the act or commission for which the accused person has been charged and the expression \victim\ includes his or her guardian or legal heir. [7] In this regard, learned Additional Advocate General submits that though in the year 2011, Mr. B. P. Gautam, a local journalist of Shahjahanpur/Budaun, married man, without divorcing his earlier wife, got married with Ms. Chidarpita Gautam @ Komal Gupta but it seems that this relationship was full of turmoil, where Ms. Chidarpita Gautam @ Komal Gupta initiated proceedings under section 12 of Domestic Violence Act, a Divorce Petition under section 13 (1) of the Hindu Marriage Act, a proceeding under section 125 Criminal Procedure Code and all the proceedings are pending before the respective competent courts. Thus, it is apparent that they are rivals in different proceedings and thus, no stretch would fall within the ambit of either 'guardian or legal heir'. Mr. B. P. Gautam, without her consent or any authority, is trying to represent opposite party no. 2 by filing \Intervening Application\. When opposite party no.2, the real victim, is already represented by her counsel, then Sri B. P. Gautam, alleged husband, would occupy the back seat, specially under the present scenario of the case, whereby he is a contesting party/rival in number of proceedings against her, pending in different courts of law, including Divorce proceedings. This 'Intervening Application' is nothing but an attempt to gain popularity through opposite party no.2., Learned Additional Advocate General has relied upon a recent judgement of Honourable Apex Court in the case of Jagjeet Singh and others v Ashish Mishra @ Monu in Criminal Appeal No. 632 of 2022 decided on 18.04.2022. Learned Additional Advocate General has also relied upon the Full Bench Judgment of this Court in the case of Mast Ram Tiwari Vs. State of Uttar Pradesh reported in (2018) 2 ADJ 518, some extracts of para no.22 of which is quoted hereinbelow: called upon, in the present case, to consider the scope of the word 'victim', what appears to us from its plain reading, is that it is classified in two categories - (i) a person who has suffered any loss or injury caused by the reason of the act or omission attributed to the accused; and (ii) the guardian or legal heirs of such 'victim'. The expression 'guardian' or 'legal heir' used in the definition clause under Section 2 (wa), in our opinion, deserves to be construed in the broad and general sense, so as to include all those on whom the estate of the deceased dwells. Thus, the guardian or legal heir of such victim would come into play only when the victim is incompetent or incapable to defend his/her self but where the victim herself is in a position to engage her counsel and contesting the case with her all might, then, in that event, her guardian or legal heir of the victim, would have no role to play in the presence of such victim. The opposite party no.2 is a major girl, physically and financially sound, then she has got no reason to engage or ask Mr. B. P. Gautam to contest her case on her behalf. Therefore, the Intervening Application, filed on behalf of Mr. B. P. Gautam is, hereby, rejected., Revisting to the principal issue, applicability of Section 321 Criminal Procedure Code, which deals about withdrawal from the prosecution in the present case. In this regard, lets have certain old quotation which gives beacon light to adjudicate instant controversy: 'Justice, though due to accused is due to the accuser also. The concept of fairness must not be strained until it is narrowed it is a filament. We are to keep the balance true.' This Court could not resist the thundering Sanskrit shloka quoted hereinbelow which remained haunting throughout the adjudication of the case and till the dictation of the judgment: The judgment of Honourable Mr. Justice Benjamin N. Cordozo in Snyder v. Massachusetts, 291 U.S. 97 (1934), it was categorically observed that: 'Every civilized State has obligation to protect its citizen in all spheres of life. This is one of the predominant duties of the State in the modern era. The duty of the State in civil sphere case to ensure and protect the people's right and in the criminal sphere is to protect people from the culprit(s) and to maintain law and order in the society. Therefore, the administration of justice is ferment pillar of the society This is to fuel the legal justice, which ensures uniformity and certainty in the administration.' Honourable Mr Justice V. R. Krishna Iyer expressed the stake of victim of a crime in Re: Rattan Singh v. State of Punjab [1974 (4) Supreme Court Cases 701] as under: 'It is a weakness of our jurisprudence that the victims of the crime, and the distress of the dependents of the victim, do not attract the attention of the law. Indeed, victim reparation is still the vanishing point of our criminal law. This is a deficiency in the system which must be rectified by the Legislature.' In criminology, offence committed by a person, who is never against particular individual but against the whole society (State), therefore, in criminal matters, the State itself is a party. The criminal prosecution of a criminal case is conducted by a Public Prosecutor. Section 321 of the Criminal Procedure Code enables the Public Prosecutor or the Assistant Public Prosecutor to withdraw from a prosecution of any person either generally or in respect of anyone for more of the offences for which he is tried. For this issue, the consent of the Court is necessary and imperative., Taking the guidance and recourse from the aforesaid observations, it is mandatory to spell out brief skeleton facts of the case, which has given rise to the present controversy; Visiting to the present disputation upraised on behalf of Swami Chinmiyanand Saraswati, an ex-Minister for Home in the Central Government during 1999-2004, approached this Court for invocation of extraordinary power of this Court under section 482 Criminal Procedure Code with the prayer to allow the application and to secure ends of justice as well as quash the order dated 24.05.2018 (annexure no. XXIV of the affidavit), passed by the Chief Judicial Magistrate, Shahjahanpur rejecting the application under section 321 Criminal Procedure Code filed by the Public Prosecutor/Prosecuting Officer to withdraw the prosecution of Criminal Case No. 4179 of 2012 (State v. Swami Chinmayanand Saraswati) arising out of Case Crime No. 1423 of 2011, Police Station Kotwali, District Shahjahanpur, under section 376 and 506 Indian Penal Code and to accord consent for withdrawal of the case. Secondly, in addition to the above, charge sheet no. 147 of 2012 dated 23.10.2012 and order of taking cognizance passed in the said charge sheet dated 29.10.2012 may also be quashed and entire proceedings of Criminal Case No. 4179 of 2012 (State v. Swami Chinmiyanand Saraswati) based on the impugned charge sheet no. 147 of 2012 may also be quashed as the same is gross abuse of process of Court and to pass any further order in favour of the applicant, which the Court may deem fit and proper., So far as the second part of the prayer for quashing of the charge sheet and cognizance order dated 29.10.2012 is concerned, learned counsel for the applicant drew attention of this Court that on the earlier occasion, the applicant approached to the Court by filing an application under section 482 Criminal Procedure Code No. 43082 of 2012 wherein on 14.12.2012, a coordinate Bench of this Court, while issuing notice to opposite party no.2 had stayed further proceedings of Case No. 2179 of 2012 (State v. Swami Chinmayanand Saraswati). However, on 02.02.2018 an application was moved by the present applicant to withdraw the aforesaid Criminal Miscellaneous Application No. 43082 of 2012 which was allowed on 16.02.2018 without granting any liberty to file a fresh petition with regard to same issue., Subsequently, since the applicant himself withdrew the aforesaid petition with the same prayer, thus, the second part of the prayer challenging the charge sheet and the summoning order is now incompetent and, accordingly, rejected., Now, entertaining the first part of the prayer whereby the concerned Chief Judicial Magistrate on 24.05.2018 has rejected the application moved by Public Prosecutor for withdrawing the prosecution against the applicant in exercise of power under section ... To appreciate the controversy involved, it is mandatory to give a bird's eye view to the entire facts of the case, especially after the perusal of paragraphs 5 to 13 of the petition which speaks out the warped agenda of the case itself. Learned counsel for the applicant has tried to create a hype, an aura around the applicant by submitting, that the applicant is a man of high spiritual, ethical moral political values and saint of high pedestal. In addition to this, he was a political giant at one point of time and a vibrant social worker. Impressed by the spiritual and socio-political qualities of the applicant, the complainant, opposite party no.2 met with him at his official accommodation in the year 2001 at New Delhi and delighted to find him a spiritually giant, a dedicated social worker and a vibrant political personality. She tried to develop affinity with him when she was in her teens. Thereafter, she expressed her willingness and desire to turn as a Sanyasini and requested him to give her Deeksha (consecration). During the period of 2002-2004, the applicant had consecrated (Deeksha) and given her a new name \Sadhvi Chidarpita\ and thus, opposite party no.2 became his disciple, started treating him as her Guru. In the year 2005, she observed certain radical changes in the attitude of her Guru, who was trying to shift his main seat Mumuksha Ashram at Shahjahanpur to the aforesaid reincarnated Sadhvi. All these developments in the life of opposite party no. 2 she has narrated in her Facebook page (annexure 5 to the petition).
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In her posts, she admits that she actively participated in the management activities of the aforesaid Ashram, Sukhdevanand P.G. College and other educational institutions run by Mumuksha Ashram and she became part and parcel of the management., It has been argued by Sri Dileep Kumar, learned Senior Advocate appearing for the applicant, that opposite party no. 2 remained in the company of the applicant at Mumuksha Ashram, Shahjahanpur where the applicant asked her to complete her graduation, post‑graduation and L.L.B. course. She completed the aforesaid education while residing in the Ashram and became an integral part of the applicant Swami Chinmayanand Saraswati’s profession and private life. The learned counsel for the applicant also pointed out that opposite party no. 2 was made a member of Shanker Mumuksha Vidyapeeth., While in the company of the applicant she harboured high aspirations and hopes for her future and tried to impress upon the applicant to exploit his political affiliations to let her contest the Assembly Election of 2012. The applicant seemed to dismiss her aspirations and the bickering between them ignited. On 01‑10‑2011 opposite party no. 2 deserted Mumuksha Ashram after resigning from all posts and, in July 2011, married Mr. B.P. Gautam, a freelance journalist, who was then living with his second wife Ms. Komal Gupta., On 14‑11‑2011 opposite party no. 2 wrote a letter to the then Chief Minister of Uttar Pradesh alleging wrongful confinement, illegal detention, sexual assault and abortion and requested that an FIR be lodged against the applicant. Consequently, on 30‑11‑2011 case crime no. 1423 of 2011 was registered against the sole named accused under sections 342, 376, 506, 307, 323 and 312 of the Indian Penal Code. The FIR, spanning three handwritten pages, narrated a nightmare in which the applicant allegedly established a physical relationship with her, administered intoxicants in her food and brutally ravished her, took obscene audio‑visual videos and pornographic photographs, and subsequently exploited her. She further stated that she was impregnated twice, once at Bareilly and once at Lucknow, both pregnancies were aborted, and she was mercilessly assaulted by the applicant’s goons while pregnant., After lodging the FIR, the police medically examined her and recorded her statements under sections 161 and 164 of the Code of Criminal Procedure. The doctors were unable to give any opinion about rape or the alleged abortions and did not find any injury around the neck or other parts of the body of opposite party no. 2., Since all the offences were serious in nature and cognizable, the applicant approached the Supreme Court of India by filing Criminal Miscellaneous Writ Petition No. 2493 of 2011. A coordinate bench of the Supreme Court on 22‑11‑2012 rescued the applicant from the wrath of the police. The writ petition was eventually disposed of by the Division Bench of the Supreme Court vide order dated 16‑07‑2022, wherein the arrest of the petitioner was stayed until the filing of the report under section 173(2) of the Code of Criminal Procedure., After concluding the evidence, the investigating officer of the case dropped all sections of the Indian Penal Code except sections 376 and 506 IPC. The learned magistrate concerned took cognizance of the referred offences against the applicant on 02‑12‑2011., The Supreme Court perused the victim’s statements recorded under section 161 Cr.P.C. (annexure no. 13 of the petition). In the question‑answer session, the victim reiterated the FIR version, stating that the applicant initially raised her aspirations sky‑high and impressed her psyche so that she might come under his aura, and that to an extent the applicant succeeded in winning her confidence. When asked whether she had married the applicant, she replied that although she had not married because in the ‘Saraswasti Sampraday’ marriage is prohibited, she still considered the applicant as husband. In the section 164 Cr.P.C. statement she reiterated the same version but admitted that in July 2011 she married B.P. Gautam at Budaun and left Mumuksha Ashram on 28‑08‑2011., Earlier, the applicant, by means of Application under section 482 No. 43082 of 2012, had challenged the charge sheet as well as the summoning order. A coordinate bench of the Supreme Court on 14‑12‑2012 stayed the proceedings of the case and issued notice to opposite party no. 2. This interim order lasted until 2018, when on 02‑02‑2018 an application was moved on behalf of the applicant to withdraw the aforesaid 482 application and vacate the interim order dated 14‑12‑2012. The application was entertained and the 482 application was rejected as ‘not pressed’; the interim order was vacated and the Office of the Court was ordered to communicate this order to the concerned court., As soon as the 482 application was rejected as not pressed on 16‑02‑2018, an Under Secretary of the Government of Uttar Pradesh wrote a letter to the District Magistrate, Shahjahanpur directing the Public Prosecutor to withdraw the prosecution against the applicant. The Under Secretary’s letter dated 06‑03‑2018 is quoted herein. While annexing the letter, the District Magistrate, Shahjahanpur on 09‑03‑2018 wrote to the Senior Public Prosecutor (Shahjahanpur) to get the prosecution withdrawn. Obeying the directions of the senior executive bosses, the Senior Public Prosecutor, Shahjahanpur on 12‑03‑2018 filed an application in the court of the Chief Judicial Magistrate, Shahjahanpur under section 321 Cr.P.C., A plain reading of the application shows a total non‑application of mind by the Senior Public Prosecutor, Shahjahanpur, who claims to have applied his ‘independent mind’, perused the record and, in the interest of public and justice, agreed with the decision of the Government of Uttar Pradesh to withdraw the prosecution. This is a farce, as the law mandates that the public prosecutor must apply his judicial mind while filing an application under section 321 Cr.P.C.; merely stating ‘independent mind’ is insufficient., When the application filed by the Senior Public Prosecutor, Shahjahanpur was pending in the Chief Judicial Magistrate’s court, opposite party no. 2 filed an application on 24‑05‑2021 requesting the court to reject the Senior Prosecutor’s application under section 321 Cr.P.C. (annexure no. 33). She opposed the application, stating that she was the real victim of the atrocities committed by the applicant, but the State Government decided to withdraw the prosecution for obvious reasons., Learned counsel for the applicant drew the Court’s attention to annexure no. 25, a letter written by former Judge of this Court, Hon’ble Mr. Justice Kamleshwar Nath (retired), to the District Judge, Shahjahanpur, seeking information based on a Times of India (Lucknow Edition) news item dated 10‑04‑2018. The queries sought were: (a) the case number and date of registration of the criminal case; (b) whether the High Court had stayed the arrest of the accused Chinmayanand and the stay order; (c) whether the proceedings of the criminal case had been stayed. The District Judge replied point‑wise on 18‑04‑2018., Sri Dileep Kumar, learned Senior Advocate for the applicant, submitted that the mail from the ex‑Judge created undue pressure on the Chief Judicial Magistrate, Shahjahanpur, who, over‑influenced by it, decided to reject the Senior Prosecutor’s application dated 12‑03‑2018 under section 321., Pursuant to the parent order of the Supreme Court dated 14‑12‑2012 in the instant application filed under section 482 Cr.P.C., notices were issued to opposite party no. 2 and the learned Additional Government Advocate, who filed their respective counter‑affidavits. Sri Anurag Pandey, learned counsel for opposite party no. 2, filed his Vakalatnama and counter‑affidavit dated 08‑12‑2020. The affidavit of Sadhvi Chidapita Gautam (Komal Gupta) states that she contested the proceedings, approached higher authorities including the Governor, learned that the Governor called for a report from the District Magistrate/Prosecutor, and that the matter was finally dropped. She now fully accepts the State Government’s decision to withdraw the prosecution and is not interested in further pursuing the case., The Additional Government Advocate’s counter‑affidavit, sworn by Sri Shiv Prasad Dubey, Circle Officer, Jalalabad, Shahjahanpur, outlines the skeleton facts: after thorough investigation the police submitted a charge sheet under sections 376 and 506 IPC against the applicant, the competent court took cognizance, and the victim supported the prosecution in her statements under sections 161 and 164 Cr.P.C. She also opposed the application under section 321 Cr.P.C. filed by the Senior Prosecutor, Shahjahanpur (annexure 23A, dated 24‑05‑2018)., The salient features of the case are: (i) the applicant is the sole accused; opposite party no. 2 has levelled abhorrent allegations, claiming sexual exploitation and violation of the guru‑disciple relationship; (ii) the police, after thorough investigation, submitted a charge sheet under sections 376 and 506 IPC on 23‑01‑2012, and the learned magistrate took cognizance on 29‑10‑2012, dropping all other allied sections., The applicant filed the first application under section 482 Cr.P.C. No. 43082 of 2012 (Swami Chinmayanand Saraswati v. State of Uttar Pradesh). On 14‑12‑2012 a coordinate bench of the Supreme Court, while issuing notice to the applicant and opposite party no. 2, stayed further proceedings of case No. 4179 of 2012 (State v. Chinmayanand Saraswati). This interim order operated until 16‑02‑2018, when the applicant withdrew the 482 application without any liberty to re‑file, indicating ulterior designs., The withdrawal of the 482 application on 16‑02‑2018 and the Under Secretary’s letter dated 06‑03‑2018 communicating the Government of Uttar Pradesh’s decision to withdraw the prosecution against the applicant, shortly after the 2017 Uttar Pradesh Assembly Elections, suggest a change in the establishment. The proximity of the decision to the elections and the involvement of political bosses raise questions about the motive behind withdrawing prosecution in a heinous crime under section 376 IPC., The Senior Prosecuting Officer, Shahjahanpur, after receiving “sermons” from his political superiors, submitted an application under section 321 Cr.P.C. stating that, after applying his so‑called independent mind, the criminal case should be withdrawn against the applicant “in the larger interest of public and the interest of justice.” Opposite party no. 2 opposed this application on 24‑05‑2018 and later altered her stance by filing an affidavit stating she was satisfied with the State Government’s decision., Legal Discussion: Section 321 of the Code of Criminal Procedure reads: “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….”, Legislative intent: Any crime is committed against the entire society, and the State, not a private individual, initiates prosecution. The Public Prosecutor or Assistant Public Prosecutor is the authority responsible for conducting the case. If the prosecutor finds insufficient evidence or believes that continuing prosecution would not serve public justice, peace or tranquillity, the legislature permits withdrawal in the larger public interest., Section 321 Cr.P.C. provides discretion to the Public Prosecutor to withdraw from prosecution with the Court’s consent, provided the withdrawal is in the interest of administration of justice. The Supreme Court in Sheo Nandan Paswan v. State of Bihar (1987) held that, although the section does not prescribe specific grounds, the inherent condition is that withdrawal must be in the interest of justice. The Government must scrutinise the reason for withdrawal, and the Court must ensure that the Public Prosecutor applies an independent mind rather than acting as a mere instrument of the State., The question of what constitutes ‘public interest’ is often vague and has been misused for political ends. While an exhaustive definition is difficult, courts have, over time, evaluated public interest based on the facts and circumstances of each case., The role of the Public Prosecutor, as affirmed in Subhash Chandra v. Chandigarh Administration (1980), is to act as a judicial limb, exercising independent discretion even if it displeases the executive. Permission for withdrawal cannot be granted mechanically; it must be for proper administration of justice and the public interest. In Abdul Kareem and others v. State of Karnataka (2008), the Supreme Court held that an application under section 321 Cr.P.C. cannot be allowed solely on the basis of a State Government decision; the Court must examine the facts and circumstances., Duty of the Government: Before directing a Public Prosecutor to withdraw prosecution, the State Government should carefully consider the reasons and ensure they are in the public interest. Transparency in the reasoning curbs favouritism and extraneous political persuasion., In the present case, the Under Secretary’s letter to the District Magistrate dated 06‑03‑2018 did not spell out any substantive reason for the withdrawal of prosecution against the applicant. The Senior Public Prosecutor’s application, therefore, appears to be a mockery of justice, reflecting undue influence from the executive., The Court refers to recent judgments such as State of Kerala v. K. Ajith (Criminal Appeal No. 698 of 2021, decided on 28‑07‑2021) and Ashwini Kumar Upadhyay v. Union of India (Writ Petition No. 699 of 2016, dated 10‑08‑2012) for guidance on the interpretation of section 321 Cr.P.C., In conclusion, the judiciary acts as a sentinel over the other limbs of the State, ensuring that the Public Prosecutor applies an independent judicial mind when seeking withdrawal of prosecution. The Supreme Court has consistently held that withdrawal must be in the larger public interest, free from executive pressure, and that the Court must scrutinise the application to prevent abuse of the provision.
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Misuse of Prosecutor's Power under Section 321 of the Code of Criminal Procedure. Learned amicus has drawn our attention to various instances across the country wherein State Governments have resorted to withdrawal of numerous criminal cases pending against Members of Parliament or Members of Legislative Assembly by utilising the power vested under Section 321 of the Code of Criminal Procedure. It merits mentioning that the power under Section 321 of the Code of Criminal Procedure is a responsibility to be utilised in public interest and cannot be used for extraneous and political considerations. This power must be exercised with utmost good faith to serve the larger public interest., Recently, the Supreme Court of India in State of Kerala v. K. Ajith, (2021) Supreme Court Cases Online SC 510, held that the principles which emerge from the decisions of this Court on the withdrawal of a prosecution under Section 321 of the Code of Criminal Procedure can now be formulated 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 to a withdrawal, the court exercises a judicial function which is supervisory in nature. Before granting consent the court must be satisfied 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; that 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; that the application does not suffer from improprieties or illegalities which would cause manifest injustice if consent were given; that the grant of consent sub‑serves the administration of justice; and that 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 scrutinising 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. In a situation where both the trial judge and the revisional court have concurred in granting or refusing consent, the Supreme Court of India, while exercising its jurisdiction under Article 136 of the Constitution, would exercise caution before disturbing concurrent findings. The Court may, in exercise of the well‑settled principles attached to this jurisdiction, interfere 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., In view of the law laid down by the Supreme Court of India, we deem it appropriate to direct that no prosecution against a sitting or former Member of Parliament or Member of Legislative Assembly shall be withdrawn without the leave of the respective High Court in the suo motu writ petitions registered in pursuance of our order dated 16 September 2020. The High Courts are requested to examine withdrawals, whether pending or disposed of since 16 September 2020, in light of the guidelines laid down by the Supreme Court of India., In addition to these guidelines, there is another judgment of the Full Bench of the Supreme Court of India, Criminal Writ (Public Interest Litigation) No. 16507 of 2015, concerning the withdrawal of criminal cases by the State Government in Ram Narain Yadav v. State of Uttar Pradesh and others. The Full Bench, led by Hon’ble Justice V. K. Shukla, answered three questions: Whether the power of withdrawal can be exercised by a State Government under Section 321 of the Code of Criminal Procedure in a whimsical or arbitrary manner or whether it must be exercised for just, valid and judicially tenable considerations; whether a decision taken by a State Government for withdrawal of cases communicated to the public prosecutor with direction to proceed is open to judicial review in a writ jurisdiction under Article 226 of the Constitution of India; and whether the State Government should be required to scrutinise various criminal cases pending in subordinate courts to determine if they deserve withdrawal irrespective of any application by the accused or any other person., The Full Bench replied: The State Government is not free to exercise its authority under Section 321 of the Code of Criminal Procedure in a whimsical or arbitrary manner or for extraneous considerations apart from just and valid reasons. The decision taken by the State Government for withdrawal of a case communicated to the public prosecutor is open to judicial review under Article 226 of the Constitution of India on the same parameters as are prescribed for invoking the authority of judicial review. The State Government may act within the parameters provided to scrutinise criminal cases pending in subordinate courts to determine whether they deserve withdrawal under Section 321 of the Code of Criminal Procedure, as this is a policy decision that must be based on the parameters required to be observed while moving an application for withdrawal of prosecution., Now, comparing the impugned order dated 24 May 2018 passed by the Chief Judicial Magistrate, Shahjahanpur, with the aforesaid guidelines set up by the Supreme Court of India and the Full Bench of the Supreme Court of India, the Chief Judicial Magistrate pointed out that the case relates to rape and exploitation of a woman's chastity. The learned Senior Presiding Officer, at no stage, explained how the withdrawal of this prosecution would serve the objective of public interest or interest of justice., As mentioned above, there must be a cogent and tangible reason spelled out in an application filed under Section 321 of the Code of Criminal Procedure, setting out the entire facts of the case. The Senior Prosecuting Officer did not mention on what material he applied his independent mind and concluded that the withdrawal would meet the ends of justice or the interest of the public at large. Mere doubt was raised as to whether the concerned Senior Prosecuting Officer is an officer of the court or an agent of the executive., Relying upon the victim's statements recorded under Sections 161 and 164 of the Code of Criminal Procedure and taking into account her opposition dated 24 May 2018, the Court, after marshalling the facts and atrocities faced by the opposite party, clearly mentioned that since cognizance of the offence was taken, the prosecution has not shown grounds for withdrawal and accordingly rejected the application filed under Section 321 of the Code of Criminal Procedure., After going through the impugned judgment with the observations spelled out by the Supreme Court of India while deciding Ashwini Upadhyaya (Supra), dated 10 August 2021, the Court is of the considered opinion that the entire process of withdrawing the prosecution against the applicant falls short of the standards set by the Supreme Court of India and therefore does not call for any interference from this Court., The applicant's counsel submitted that opposition No. 2 herself had filed a counter affidavit, paragraph 4, indicating agreement with the decision taken by the State Government, and that the objection dated 24 May 2018 should not merit further discussion. It was therefore stated that the applicant had been won over and that her stand shall be seen at the time of charge., From the foregoing discussion, this Court is of the view that no case exists to exercise the power under Section 321 of the Code of Criminal Procedure in favour of the applicant and the application deserves to be rejected. The provisions of Section 321 of the Code of Criminal Procedure are antithetical to the principle that in our criminal dispensation system we cannot afford to pick and choose based on caste, creed, religion, political affiliation, or financial capacity. The application of law should be uniform to all., The applicant is an elderly man of 76 years, suffering from several age‑related ailments and having undergone eye surgery on medical advice for bed rest. Taking a humanitarian approach, if the applicant surrenders before the concerned Magistrate on or before 30 October 2022 and applies for bail, his bail application shall be adjudicated and decided strictly in accordance with law. Until 30 October 2022, no coercive action shall be taken against the applicant in the aforesaid case., With the aforesaid judgment and order, the instant petition is finally disposed of. A copy of the order shall be communicated to the concerned authorities within four days forthwith., It is argued that against the order dated 30 September 2022, the applicant preferred Special Leave to Appeal (Criminal) No. 10004 of 2022 (Swami Chinmayanand Saraswati v. State of Uttar Pradesh and another), which was dismissed by the Supreme Court of India. The Supreme Court clarified that the observations in the High Court order were limited to consideration of the application for withdrawal of prosecution and would not bind the trial court while conducting the trial. Since the order dated 30 September 2022 directed that if the applicant surrenders before the concerned Magistrate on or before 30 November 2022 and applies for bail, his bail application shall be decided in accordance with law and that no coercive action shall be taken until 30 October 2022, the Supreme Court extended the surrender deadline to 30 November 2022. The order is annexed as document No. 17 to the present affidavit filed in support of the anticipatory bail application., Learned counsel for the applicant argued that the applicant is an old and infirm person aged about 75 years with several illnesses. Paragraph 59 of the affidavit filed in support of the anticipatory bail application, along with medical documents annexed as No. 18, was placed before the Court. Paragraph 61 states that the applicant manages ashrams in various places and is trustee of several trusts imparting religious and academic education. Paragraph 62 indicates that five educational institutions provide both religious and regular academic courses. Paragraph 63 notes that a number of medical hospitals are run under the applicant's supervision. Paragraph 66 asserts that the applicant has no criminal antecedents, cooperated during investigation, and was given a protective order during the investigation, warranting anticipatory bail till the conclusion of trial. Although the order dated 30 September 2022 directed that if the applicant surrenders within 30 days his bail application be decided by the concerned court, the Supreme Court extended the surrender period by an order dated 14 November 2022, which does not restrict the applicant from seeking anticipatory bail under Section 438 of the Code of Criminal Procedure. The applicant’s counsel relied upon the Supreme Court decisions in Vinod Kumar Sharma and another v. State of Uttar Pradesh and another, 2021 Supreme Court Cases Online SC 3225, and in Kamlesh and another v. State of Rajasthan and another, 2019 Supreme Court Cases Online SC 1822, to argue that anticipatory bail should be granted., Learned counsel for the State, although opposing the prayer for anticipatory bail, could not dispute the factual position that the applicant was granted protection during the pendency of investigation, that the State Government has decided to withdraw the prosecution, and that the applicant is 75 years of age and associated with various educational, religious and medical institutions., The matter requires consideration. The Additional Government Advocate has accepted notice on behalf of the State of Uttar Pradesh/opposite party No. 1. Notice shall be issued to opposite party No. 2 through registered post and through the Chief Judicial Magistrate, returnable within three weeks. Steps shall be taken within a week. The Additional Government Advocate as well as opposite party No. 2 may file their respective counter‑affidavits, if any, within four weeks from today. Rejoinder affidavits, if any, may be filed by the applicant within one week thereafter. The case is listed for 6 February 2023. Until the next date of listing, in the event of the applicant’s arrest, Swami Chinmayanand Saraswati shall be released on interim anticipatory bail upon furnishing a personal bond of Rs 1,00,000 (Rupees One Lakh) with two sureties of equal amount to the satisfaction of the court, subject to the following conditions: (i) the applicant shall make himself available on each date fixed by the court; (ii) the applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade such person from disclosing the facts to the court; (iii) the applicant shall not leave India without prior permission of the court and, if he possesses a passport, it shall be deposited before the concerned court forthwith. In case the applicant does not cooperate in the trial proceedings, this order shall stand automatically recalled or vacated and the applicant shall be taken into custody forthwith. Further, in default of any condition, the court concerned is at liberty to pass appropriate orders for enforcing and compelling compliance.
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The present petition has been filed seeking regular bail in connection with First Information Report No. 220/2022 under Sections 376 and 420 of the Indian Penal Code registered at Police Station Maidan Garhi, New Delhi. The prosecution case as per the FIR states that the complainant met the petitioner/accused on 25 December 2020 on the dating app Hinge, they became good friends and eventually fell in love. The petitioner allegedly disclosed his higher education, namely an engineering degree from the Indian Institute of Technology Kharagpur, double master’s degrees from the United Kingdom and New Zealand, and a Ph.D. from King’s College, London., The parties planned to meet physically in Delhi on 6 January 2021, but the petitioner informed that he was suffering from malaria and required hospitalization, asking the complainant to give a loan of Rs 25,000 with a promise to return the amount after April 2021. The petitioner arrived in Delhi on 1 February 2021; the complainant picked him up from the airport and they stayed at an Airbnb in Kishan Garh. The complainant later booked a cab to bring the petitioner to her flat where the petitioner initiated sexual intercourse on the pretext of marriage and long‑term companionship. The flat‑mate of the complainant was present at the time. Later that evening both shifted to the Airbnb and stayed there for four days, having repeated sexual intercourse., On 4 September 2021 the petitioner again visited the complainant in Delhi, stayed in her flat and again had sexual intercourse on the pretext of marriage. The complainant allegedly gave the petitioner an amount of Rs 1.2 crore for his treatment., The learned counsel for the petitioner submits that no promise of marriage was made by the petitioner. The parties met on a dating app, not on any matrimonial platform, and the alleged promise of marriage is an afterthought., Counsel draws the attention of the Delhi High Court to the cross‑examination of the prosecutrix (Prosecution Witness 1) who admitted sending erotic stories to the petitioner via WhatsApp and that the petitioner is only a B.Sc. graduate with no Ph.D. The allegation of a false promise of marriage therefore lacks substance., Regarding the allegation that obscene photographs and videos were recovered from the petitioner’s mobile phone by the Forensic Science Laboratory, counsel states that such material was prepared with the consent of the prosecutrix., On the allegation of cheating under Section 420 of the Indian Penal Code, counsel argues that there is no inducement, which is a necessary ingredient for the offence. The money transferred was used for hotel bookings and other expenses, not as an inducement., The FIR alleges that Rs 25,000 was given by the complainant to the petitioner as a loan on 11 January 2021 and was not returned. Counsel maintains that the payment was voluntary and there is no evidence of a false promise of marriage., Counsel states that no medical documents were found by the Forensic Science Laboratory to substantiate any fabricated medical papers. The petitioner has been in custody since 13 May 2022; the charge sheet has been filed and many witnesses have been examined, making the trial likely to be protracted. Custody is no longer required., The learned Additional Public Prosecutor for the State argues that the petitioner misrepresented his medical condition to obtain money for treatment., The Delhi High Court has observed that the process of criminal law, particularly bail, is not akin to civil money‑recovery proceedings. Bail may be granted or denied irrespective of any payment made by the accused., The court notes that the petitioner has no criminal record, the investigation is complete, and custody is no longer required. Accordingly, the petitioner is admitted to bail subject to a personal bond of Rs 25,000 and the following conditions: (i) the petitioner shall appear before the court as and when the matter is taken up for hearing; (ii) the petitioner shall provide his mobile number to the investigating officer and keep it in working condition at all times, not changing it without prior intimation; (iii) the petitioner shall not indulge in any criminal activity or communicate with or come in contact with the complainant, witnesses or any family members of the complainant or witnesses., The petition is disposed of.
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Petitioner shall provide his mobile number to the Investigating Officer concerned which shall be kept in working condition at all times and he shall not change the mobile number without prior intimation to the Investigating Officer concerned. Petitioner shall not indulge in any criminal activity and shall not communicate with or come in contact with the complainant or witnesses or any family members of the complainant or witnesses., Petition is disposed of. It is made clear that the observations made herein are only for the purpose of the bail application. The testimonies of public witnesses have been recorded; therefore, witnesses being influenced by the petitioner have been considered. The prosecution has cited as many as eighteen witnesses and to date only seven witnesses have been examined. Consequently, the conclusion of trial in the given facts and circumstances of the case, the petitioner, who has been in custody since 13 May 2022, cannot be kept for an indefinite period to await the conclusion of trial., Accordingly, the petitioner is admitted to bail subject to his furnishing a personal bond and one surety bond of the like amount subject to the satisfaction of the Trial Court/Jail Superintendent, further subject to the petitioner appearing before the High Court of India as and when the matter is called., It is made clear that the observations made herein are only for the bail application 2188/2023 and the same shall not be deemed to be an expression of opinion on the merits of the case., Copy of the order shall be forwarded to the concerned Jail Superintendent for necessary compliance., The order is dated under the signatures of the Court Master., The order shall be uploaded on the website of the High Court of India.
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id_1501
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Original Petition (Criminal) No. 257 of 2022 dated 5 July 2022. A request to forward an electronic document to the forensic laboratory for analysis was declined by the impugned order. The document in issue is in the custody of the Special Sessions Court, in the pending trial and was already subjected to analysis. The request of the investigating officer to forward the electronic document for examination was made after the court had permitted the conduct of a further investigation into the alleged crime. Terming the rejection as a restriction on the powers of investigation, the State has preferred this original petition., An actress of repute is alleged to have been sexually assaulted on the night of 17 February 2017 in a moving car. The prosecution alleges that during the commission of the alleged brutality, the accused also took a video of the assault on a mobile phone which was later transferred to a memory card. The memory card containing the videos was subjected to a forensic examination during the investigation. After the final report was filed, since the copy of the memory card was not furnished to the accused as it contained obscene videos, the eighth accused challenged the refusal. Finally, the Supreme Court of India, by judgment in P. Gopalkrishnan Alias Dileep v. State of Kerala and Another [(2020) 9 SCC 161], held that the content of the memory card is an electronic record and ought to be regarded as a document. However, taking note of the privacy of the victim and her identity, the Special Sessions Court was directed to provide an opportunity for inspection of the document for an effective defence during the trial and also directed that a cloned copy be made and kept with the Central Forensic Science Laboratory., The document was again sent to the Forensic Laboratory, as directed by the Supreme Court of India for making the cloned copy and the report was given to the Special Sessions Court. Thereafter, trial commenced before the Special Sessions Court. Numerous witnesses were examined and several documents were also marked. The memory card containing the obscene videos was marked as Exhibit P262 and the report as Exhibit P263. The examiner of the said document was examined as Witness 192 too. On the day the case was posted for examining the investigating officer, the prosecution informed the Special Sessions Court that they were commencing a further investigation due to certain revelations. Though the trial was being carried out under timelines issued by the Supreme Court of India, the Special Sessions Court granted permission for further investigation. On 03-06-2022, the Kerala High Court extended the time for further investigation till 15-07-2022., In the meantime, the investigating officer came across the report dated 29-01-2020 issued from the Forensic Laboratory indicating a change in the hash value of the electronic record. On 04-04-2022, the investigating officer filed a forwarding note, requesting the Special Sessions Court to forward the electronic document once again to the Forensic Laboratory for further examination for two purposes. By the impugned order dated 09-05-2022, the learned Special Sessions Court dismissed the petition after observing that the details sought by the investigating officer are already available in Exhibit P263 and in the deposition of Witness 192 – the expert examiner. It was thus concluded that the purpose for seeking the details of access to the document again is unintelligible, ill‑conceived and ill‑motivated and the request was declined., Detailed arguments were put forth by all counsel. Sri T. A. Shaji, learned Director General of Prosecutions, appearing on behalf of the petitioner, questioned the impugned order and urged, along with Advocate V. Ajayakumar and Smt. T. B. Mini, both of whom appeared for the survivor, that the Special Sessions Court ought not to have declined to send the document for forensic examination., In contrast, Sri B. Raman Pillai, the learned Senior Counsel, and Advocate Philip T. Varghese, appearing on behalf of the additional respondent, vehemently contended that the entire attempt of the prosecution was to malign the Court as well as the accused and no purpose would be achieved by sending it for forensic examination., I have considered the submissions of the respective counsel., Irrefutably, when the trial of the case had reached the last of the prosecution witnesses, the investigating officer commenced a further investigation after obtaining permission from the Special Sessions Court. Though the Special Sessions Court had initially granted time till 15-04-2022, it was extended to 30-05-2022 and the Kerala High Court, by order dated 03-06-2022, extended the time till 15-07-2022 to complete the further investigation. The investigation has been directed to be completed positively by the said date, taking note of the direction of the Supreme Court of India to complete the trial by 16-08-2021, which period is long over. Obviously, further investigation cannot continue endlessly, that too, beyond the period permitted by the court., Article 21 of the Constitution of India mandates, as interpreted by the Supreme Court of India, that the procedure in a criminal trial must be fair, just and reasonable and not fanciful or oppressive. The assurance of a fair trial is the imperious command of the rule of law. This command springing from Article 21 is all‑pervasive and has a ubiquitous influence over every provision of law in our country. In fact, the Supreme Court of India has observed that the hovering omnipresence of Article 21 over every provision of the Criminal Procedure Code cannot be lost sight of. [See the decision in Vinubhai Haribhai Malaviya and Others v. State of Gujarat and Another [(2019) 17 SCC 1]. Thus the interpretation of the provisions of the Criminal Procedure Code must of necessity ensure adherence to Article 21, in both letter and spirit., Endless investigation may prejudice a fair trial. However, no time limit has been legislatively fixed for completing criminal investigations, except for offences relating to rape. The investigation into an offence alleging rape must be completed within two months as per section 173(1A) of the Criminal Procedure Code. The present case falls within the category of offences specified in section 173(1A) of the Criminal Procedure Code., Be that as it may, once the further investigation is permitted, the manner and the nature in which the investigation is to be effected cannot be the lookout of the Court. As long as the investigating officer is exercising his powers of investigation within legal bounds, courts should seldom interfere, unless the court is convinced that the investigating officer is acting with malafide intent or is abusing his powers of investigation or there is non‑compliance with the provisions of the Criminal Procedure Code. [See the decisions in Abhinandan Jha and Others v. Dinesh Mishra (AIR 1968 Supreme Court of India 117), State of Bihar and Another v. J. A. C. Saldanha and Others [(1980) 1 SCC 554], Subramanian Swamy v. Director, Central Bureau of Investigation and Another [(2014) 8 SCC 682] and P. Chidambaram v. Directorate of Enforcement [(2019) 9 SCC 24]., When the court is convinced that the investigation is not proper, the court is vested with all powers, incidental or implied, to ensure a proper investigation. This power will encompass all stages of an investigation. The courts can thus monitor the investigation to ascertain whether it is being carried on in proper lines, including in the collection of evidence as observed in Vinubhai Haribhai Malaviya’s case (supra)., Notwithstanding the above powers, courts must be careful not to dictate the manner of collecting evidence. The nature of evidence to be collected and its relevance are to be decided by the investigating officer during the time of investigation. The power of monitoring an investigation should not be extended to denude the investigating officer from collecting any piece of evidence that he assumes to be relevant or may be relevant. Courts must bear in mind that, in criminal jurisprudence, the burden is upon the prosecution to prove its case. The investigation must therefore possess materials to bring home the truth of the fact in issue., The issues arising in this case must therefore be appreciated against the backdrop of the above legal principles., The Cyber Forensic Division of the State Forensic Science Laboratory, Thiruvananthapuram is a notified lab under section 79A of the Information Technology Act, 2000. The application of the prosecution dated 04-04-2022 for forwarding the electronic document for examination to the aforesaid lab mentioned two aspects for verification: whether any folder or files in the memory card were accessed after 18-02-2017, and to furnish a copy of file properties of all files and folders., Though the above request is not properly worded, and as observed by the Special Sessions Court is unintelligible, the fact remains, from a practical perspective, that requests for forwarding documents for forensic examination are generally not detailed and are filed in a routine manner. However, the ineptitude of the draftsman in the investigating team should not lead to the creation of any loopholes in the prosecution case. It is true that a part of the above request, at least to some extent, is already answered in the report available with the court. But certain aspects of the request are not available in the report already furnished or available in the court., In the report dated 29-01-2020 there is a reference to a change in the hash value of the memory card. The hash value of an electronic document is claimed to be like a fingerprint, ensuring the authenticity of a document. The change in hash value could be due to different reasons. Whether the change in hash value is of any relevance or not cannot be decided or considered at this stage of the proceedings. However, the Special Sessions Court cannot foresee whether the prosecution may be called upon to explain the reason for the change in the hash value. After the investigation became aware of the change in hash value of the document, failure to identify the reason for the change in hash value can, though not necessarily, fall in the realm of a lacuna in the prosecution case, arising out of an incomplete investigation. To deny the request of the investigation to forward the document for re‑analysis can have the possibility of prejudicing the investigation and, in turn, the prosecution. Even if ultimately the analysis of the document is found to be superfluous or of no consequence, the said facet of investigation and of the prosecution cannot be prejudged. Therefore, the contention of the second respondent that the details sought are already available to the prosecution is of no avail., Notwithstanding the above, it needs to be observed that the investigation cannot be permitted to enter into a roving enquiry into matters which it has no authority to pursue. Access to a document after it was produced in court cannot be a matter of investigation or relevant for investigation under any circumstances whatsoever, since only the court can pursue that, in view of the bar in taking cognizance under section 195 of the Criminal Procedure Code. As a means to ensure that the investigation is in consonance with the provisions of the Code, the court can certainly sieve the requirement of analysis of the already marked document., However, the present requirement of the investigation is not for initiating any action, but only for ascertaining certain details which it assumes to be of relevance in the investigation. If, during the trial, the Special Sessions Court is called upon to form an opinion on the electronic document, especially that relating to the change in hash value or the details of the memory card, the prosecution must be able to provide the requisite evidence. The opinion of the examiner of the electronic record becomes a relevant fact under section 45A of the Indian Evidence Act, 1872. If the investigating officer is not provided with an opportunity to produce before the court such opinion, which may explain the change in the hash value or its impact, it can lead to a failure of justice. Therefore, declining to allow the request to forward the document for analysis is a manifest error and the same requires to be corrected. The impugned order Exhibit P4 is therefore liable to be set aside., Once the impugned order is set aside, it is only proper to remit the matter to the Special Sessions Court itself for issuing appropriate orders on the basis of the observations in this judgment. However, having regard to the need for a speedy conclusion of the investigation, I am of the view that the Supreme Court of India should, in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India, direct the Special Sessions Court to forward the document Exhibit P262 to the State Forensic Laboratory as requested, with specific timelines to submit the report as sought., In view of the above, I set aside Exhibit P4 order dated 09-05-2022 in Special Sessions Court No. 118/2018 and direct the Additional Special Sessions Court (SPE/CBI Cases) III, Ernakulam to immediately, and in any event not later than two days from the date of receipt of a copy of this judgment, forward the document Exhibit P262 to the State Forensic Science Laboratory, through the mode envisaged by law. There will be a further direction to the State Forensic Science Laboratory to analyse the document as requested in the forwarding note and submit a report to the investigating officer with a copy to the Special Sessions Court in a sealed cover within a period of seven days from the date of receipt of the document. It is reiterated that the timelines specified must be adhered to without fail so that further investigation and trial of the case are not delayed. The original petition is allowed as above.
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id_1505
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The petitioners are before the Supreme Court of India calling in question registration of a crime in Crime No. 362 of 2022 for offence punishable under Section 63 of the Copyright Act, 1957 (hereinafter referred to as the Act for short), Section 66 of the Information Technology Act, 2008 and Sections 120B, 403, 465 and 34 of the Indian Penal Code., Facts adumbrated, as borne out from the pleadings, are as follows: Before embarking upon narration of facts, I deem it appropriate to notice the protagonists in the alleged crime. The first petitioner is the General Secretary of Indian National Congress, in charge of Communication, Publicity, Media including Social and Digital Committee of the party. Petitioner No. 2 is the Chairperson of the Social Media and Digital Platform of the Indian National Congress. The third petitioner is the Member of the Steering Committee of the Indian National Congress. They are accused 1, 2 and 3. The second respondent is the complainant, a partnership firm owning and broadcasting music in the name and style of MRT Music. The petitioners claim to be persons in public life and members closely associated with the Indian National Congress. The first petitioner is a Member of Parliament elected to the Rajya Sabha; the second petitioner is a former journalist and currently serving as a National Spokesperson of the Indian National Congress and also heads the Social Media Cell; and the third petitioner is the Member of Parliament elected to the Lok Sabha from Wayanad constituency, Kerala., The issue crops up with Bharat Jodo Yatra (hereinafter referred to as the Yatra for short). The Yatra is claimed to be the brain child of the third petitioner for it to be an ongoing mass movement which envisaged organization and mobilisation of general public through a walk from Kanyakumari to Kashmir spanning over 3570 kilometres over a period of 150 days. Insofar as Karnataka State is concerned, the Yatra enters the State on 30-09-2022 and ends on 20-10-2022 at Raichur. The issue does not concern any happenings during the Yatra with regard to public peace or otherwise. The petitioners also have several media handles such as Facebook, Twitter and so on and have reached out to millions through social media and claimed to be in the principal opposition at the Centre and Parliament., The second respondent registers a complaint against the petitioners on 04-11-2022. The allegation in the complaint is that popular songs from the film KGF Chapter-2 were played in the backdrop of the Yatra by violating the copyright, as it was without any agreement or permission from the hands of the assignee, the second respondent. Based upon the said complaint, a crime is registered in Crime No. 362 of 2022 for the afore‑quoted offences, primarily for violation of copyright, under Section 63 of the Act and Section 66 of the Information Technology Act. Registration of the crime is what drives the petitioners to the Supreme Court of India in the subject petition. The Supreme Court of India, in terms of its order dated 16-12-2022, grants an interim order of stay of investigation in the aforesaid crime, however reserving liberty to the respondents to seek vacation of the interim order upon filing of statement of objections. The statement of objections along with an application seeking vacation of the interim order is filed by the respondents and the matter is heard. The interim order granted earlier still subsists in the case at hand., Heard Sri Vikram Huilgol, learned senior counsel appearing for the petitioners, Sri Mahesh Shetty, learned High Court Government Pleader appearing for respondent No. 1 and Sri S. Sriranga, learned senior counsel appearing for respondent., The learned senior counsel Sri Vikram Huilgol would submit that the petitioners have not violated any of the copyright of the owner of the copyright; the complainant is not the owner of the copyright; he is only a licensee from the copyright holder and, therefore, cannot be seen to complain that his copyright has been violated. It is his further submission that videos uploaded on the official Twitter page are about 30 seconds portraying the third petitioner Sri Rahul Gandhi in one video addressing the public and in another video participating in the forefront of the Yatra with the alleged sound recording in the background. According to the learned senior counsel these do not make out any offence that would become punishable under Section 63 of the Act. It is his further submission that even if it is construed to be true, it will be hit by exceptions under Section 52 of the Act, as the same has been used for nonprofit and non‑commercial purpose in order to spread awareness of the Yatra which was only aimed at uniting the country. He would contend that insofar as other offences of the Indian Penal Code are concerned, there are no ingredients in the facts of the case at hand. Therefore, the crime so registered suffers from want of bona fides on the ground of it being unworthy of any merit., The learned senior counsel Sri S. Sriranga representing the second respondent/complainant would refute the submissions to contend that the petitioners are guilty of all the offences alleged, particularly of the violation of the Act. He would clarify that the complainant is not a licensee, but an assignee under the provisions of the Act, and therefore, he has equal rights to that of a copyright holder. He would further contend that during the Yatra the song to which the complainant has copyright was freely played and the petitioners have taken benefit of the said recording without seeking permission or entering into an agreement with the complainant., He would take the Supreme Court of India through the statement of objections and the documents appended to the objections, as also certain photographs to demonstrate that the petitioners have altered the source code of the song, played it according to their whim, changed it in its entirety and claimed to be the copyright holder of the recordings after having meddled with the source code and changed it. If this cannot be a violation of the Act, it is his submission that nothing else can be a better illustration. For a better understanding, the learned senior counsel submits that he has placed a pen drive of the video that is played along with the photographs that are appended, all of which would show blatant violation of copyright, which is an offence under Section 63 of the Act. He would submit that the petitioners have to come out clean in an investigation or a trial. The stage to quash the proceedings has not yet arrived., I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record. In furtherance whereof, the issue that falls for my consideration is, whether the acts of the petitioners would become an offence under Section 63 of the Act?, The afore‑narrated facts about the position of the petitioners, the offices that they are holding and conduct of Yatra are a matter of record. They would not require any reiteration. The genesis of the issue happens when the Yatra enters the State of Karnataka on 30-09-2022 till it is terminated on 20-10-2022. During the Yatra, songs of the movie KGF were being played in the background when the march of the Yatra was happening in which the third petitioner was the main protagonist. Noticing the fact that songs have been freely played without taking permission from the owners of the music or the second respondent, the second respondent initiates a civil suit before the concerned Court. The concerned Court grants an injunction against the Yatra accepting the fact that prima facie there is violation of copyright. This interim order granted in the civil suit was called in question before the Division Bench of the Supreme Court of India in Commercial Appeal No. 460 of 2022. The Division Bench by its order dated 8-11-2022 modifies the order passed by the civil Court permitting the Yatra to move on, but not to play the songs. The order passed by the Division Bench insofar as it is germane reads as follows:, 37. In that view of the matter, the order dated 07.11.2022 passed on I.A. Nos. 3 to 6 by learned LXX XV Additional City Civil & Sessions Judge, Commercial Division, Bangalore (CCH‑86) in Commercial Original Suit No. 1594/2022 being bereft of any reasons, much less, cogent or sustainable reasons, we are of the opinion that the appeal deserves to be partly allowed with the exception of concession made by learned Senior Counsels for the parties. 38. Learned Senior Counsel for the appellant Sri Abhishek Manu Singhvi submitted that without prejudice to the appellant's contention, the appellant shall by noon tomorrow, that is, 09.11.2022, endeavour to remove the allegedly offending material from its Twitter handle and all other forms of social media and has no intention whatsoever to use the same in future. 39. The learned Senior Counsel for the Caveator further submitted that the appeal could be disposed of and the matter could be remitted back for reconsideration by the trial court in view of the challenge to the nature of order passed which is in the nature of a mandatory injunction which in our prima facie opinion virtually impinges on the fundamental rights guaranteed under the Constitution of India. 40. In view of the statement made by learned Senior Counsel Sri Abhishek Manu Singhvi for the appellant that he would provide screenshots of his Twitter handle and also such other media before the offending material is removed, in our considered opinion, the submissions of learned Senior Counsels for the appellant appear to be fair. In response, the learned senior counsel appearing on behalf of the first respondent would fairly submit that concessions be placed on record and matter be remitted back for consideration in accordance with law. 41. Be that as it may, we are not delving deeper into the issues. In view of the submissions recorded by us supra and in view of the nature of the relief we grant. The Supreme Court of India answers all the points for consideration against the first respondent and in favour of the appellant. 42. Accordingly, we pass the following: The appeal is allowed in part. The impugned order dated 07.11.2022 passed I.A. Nos. 3/2022, 4/2022, 5/2022 and 6/2022 by learned LXXXV Additional City Civil & Sessions Judge, Commercial Division, Bangalore (CCH‑86) in Commercial Original Suit No. 1594/2022 is set aside, subject to the condition that the appellant and respondent Nos. 3 and 4 shall remove the offending content from their social media platform i.e., Twitter, Facebook, YouTube and Instagram. The interlocutory applications I.A. No. 3/2022, 4/2022, 5/2022 and 6/2022 are remitted back to the trial Court for consideration afresh. This order shall not come in the way of the plaintiff making any request to the fourth defendant to protect its copyrights. In view of disposal of the main matter, all pending IAs stand disposed of. The Division Bench allows the appeal in part, sets aside the order passed in Commercial Original Suit No. 1594 of 2022 subject to the condition that the petitioners herein would remove the offending content from the social media platform i.e., Twitter, Facebook, YouTube and Instagram. The matter was remitted back to the trial Court for consideration afresh apart from what was considered by the Division Bench. The said suit is pending adjudication before the concerned Court., During the pendency of the said suit, the impugned complaint comes to be registered. The complaint was regarding infringement of copyright of the second respondent/complainant. The gist of the complaint is found at paragraphs 5 to 8 and is extracted herein for the purpose of quick reference: 5. The Complainant states that as per its knowledge all the Accused named above are the active members of a political party called Indian National Congress. The said political party had formed a special committee called 'Steering Committee to take action regarding the functioning of the political party that is Indian National Congress.' The Accused No. 1 to 3 along with various other members of the Steering Committee who were appointed to spearhead the entire political rally and with an intention to fortify the propaganda, announced an all‑India political rally called 'Bharat Jodo Yatra' in its meeting in the year 2022. The said yatra march which they have taken up across the country is for reaping political benefits by influencing the masses at large through various methods and acts by playing sound recordings close to their tastes, sentiments, feelings, likes, inclinations. 6. The Accused No. 1 and 2 with an intention of propagating Accused No. 3 to gain political mileage appointed Accused No. 3 to spearhead the Bharat Jodo Yatra. Further the Accused No. 1 and 3, under the leadership and guidance of Accused No. 3, appointed various other regional members of Indian National Congress to participate and support Accused No. 3 in the said political rally called Bharat Jodo Yatra. In that pursuit the leaders on the march and particularly the Accused persons herein who are the star participants are putting on different conduct, behaviour, indulgences and acts to suit the masses at different places. Taking account of the fact that propagation through social media platforms is a proven effective tool to connect with and influence the masses, the Accused persons and their party have been doing everything possible to get close to the masses. Indian National Congress has its own official handles (web pages, social media accounts) on various popular platforms operated by major companies like Twitter, Google (YouTube), Meta (Facebook, Instagram), Telegram and so on. The Steering Committee has a dedicated social media handling page regarding the Bharat Jodo Yatra and the following handling pages have been created: i. https://twitter.com/INCIndia; ii. https://t.me/bharatjodovatra; and others. Under the leadership and guidance of Accused No. 1, the Indian National Congress has its own Social and Media Committee to operate and maintain the aforementioned social media handles. Accused No. 2 is the Chairperson of Social Media and Digital Platforms of Indian National Congress., Recently, it came to the knowledge of the Complainant that Accused No. 1 in one of his recent posts on https://twitter.com/INCIndia posted two videos of his rally. The said videos were made for the purpose of mass circulation on the social media platform. The videos were made using the popular sound recordings owned and held by the Complainant. The sound recordings are those of the cinematographic film 'KGF Chapter 2' (Hindi version) which is popular globally. The complaint was specific with regard to copyright violation and two videos of the rally posted on the Twitter handle of the Congress, and those sound recordings were owned and held by the second respondent. It was a song of a globally popular movie KGF Chapter 2., 9. It is submitted that Accused No. 3 has been spearheading and organizing the political rally namely Bharat Jodo Yatra. The entire yatra has been the brainchild of Accused No. 3 who has conceptualised this idea of propagating himself for securing his status and candidature. In order to gain effective momentum on social media platforms, Accused No. 3 has resorted to getting videos created showcasing his heroism and to portray to the general public at large that he is a mass leader. For this reason, Accused No. 3 has portrayed himself in the infringing video particularly considering the fact that the movie and more particularly the songs and the audiovisual clippings of the two songs in the movie KGF Chapter 2 (Hindi) have gained a mass appeal and acceptance. 10. It is submitted that Accused No. 2 herein who is in charge of social media handles of Accused No. 1 has illegally and unlawfully synchronised the sound recordings and audiovisual content of the film KGF Chapter 2 which is owned and held by the Complainant. Further, Accused No. 3, having participated consciously along with Accused No. 1 and 2 in these unlawful actions, has been seen in the infringing videos showcasing himself and canvassing his candidature to his benefit. Further the Accused No. 1 to 3 have infringed sound recording and video clipping by showing that it is owned by them and by removing the logo of the Complainant and replacing it with their own logo thereby causing confusion and defrauding the public at large. These videos are made by synchronising the sound recordings and audiovisual content of the film KGF Chapter 2 which is owned and held by the Complainant. 11. The Accused No. 1 to 3 after unauthorized and illegal synchronising of the said sound recordings and audiovisual content have placed the logo in the said video thereby claiming that they are the owners of the video including the sound recording therein. 12. The aforementioned unlawful actions of Accused No. 1 to 3 amount to an offence under Section 63 of the Copyright Act. It is also a serious offence amounting to making a false electronic record with an intention to project the same as genuine and thereby cheating the public at large. The copyright material belonging to the complainant was not intended to be used for the purposes which the accused have utilised and thereby it also amounts to dishonest misappropriation of movable property of the complainant. The copyright protected material belonging to the complainant, which the accused and their persons have stolen and misused, could not have been derived from a legal or official source and it has been gained also through illegality and thereafter they have tampered with, distorted and used the same, which is a clear case of an offence under the Information Technology Act too., It is submitted that by such unauthorized uploading, downloading and distribution by the accused, the Complainant has suffered huge losses. In fact, the very nature of the illegal activities of the Accused No. 1 to 3 has further diluted the valuable Intellectual Property Rights held and enjoyed by the Complainant. As per the knowledge of the Complainant the Accused No. 1 to 3 are conducting illegal operations of infringement of the copyrights owned by the Complainant at: Indian National Congress, 24, Akbar Road, New Delhi 110011, India. Furthermore, the Accused No. 1 is handling the following social media handles: https://twitter.com/INCIndia and others. The infringing video is uploaded, hosted and allowed to be downloaded by the public on the aforementioned social media handles. Examples of the infringing video being uploaded are: a. https://twitter.com/INCIndia/status/1579838167217188865 and b. https://twitter.com/INCIndia/status/1581604321996611586. The aforementioned links have to be brought down in accordance with law. The unauthorized distribution of the copyrighted work by all the Accused No. 1 to 3 and the unauthorized use thereof is prejudicial to the exclusive statutory rights of the Complainant as the owner of the copyrights., It is further submitted that apart from having infringed the aforementioned copyrights, all the Accused No. 1 to 3 have blatantly and slavishly used the mark thereby claiming ownership of the video including the sound recording and audiovisual content, committing an act of creating a false electronic document and distributing the same as a genuine video. Such unauthorized use of the copyrights as well as falsification of the electronic documents not only amounts to infringement of exclusive Intellectual Property Rights but also indicates that the Accused are in some manner associated with the business of the Complainant. Each of the copyrighted contents of the Complainant has been illegally stored, hosted, downloaded, side‑loaded and uploaded thereby creating infringing copies of the sound recording and audiovisual content as per the Copyright Act, 1957 and the same is liable to be handed over and/or destroyed., The complaint so registered becomes a crime in Crime No. 362 of 2022 and the moment the crime is registered, the subject petition is filed and investigation is interdicted by an order of the Supreme Court of India. The issue now is whether the petitioners have by their acts made themselves vulnerable to punishment under Section 63 of the Act or the other provisions that are alleged., To consider the submissions made by the learned senior counsel, certain provisions of the Act become germane to be noticed. Section 2 is the interpretation of the context appearing in the Act. Section 2(f) reads as follows: (f) cinematograph film means any work of visual recording and includes a sound recording accompanying such visual recording and cinematograph shall be construed as including any work produced by any process analogous to cinematography including video films. Section 2(f) defines a cinematograph film which would mean any work of visual recording and includes a sound recording accompanying such visual recording and such cinematograph shall be construed to include any work produced by any process analogous to cinematography. Therefore, a cinematograph film would include both audio and video. Section 14 defines what is copyright. Clause (d) of Section 14 defines what is a cinematograph film and clause (e) defines the rights of the owner of the copyright in a sound recording. They read as follows: 14. Meaning of copyright. For the purposes of this Act, copyright means the exclusive right, subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely: (d) in the case of a cinematograph film, (i) to make a copy of the film, including (A) a photograph of any image forming part thereof; or (B) storing of it in any medium by electronic or other means; (ii) to sell or give on commercial rental or offer for sale or for such rental, any copy of the film; (iii) to communicate the film to the public; (e) in the case of a sound recording, (i) to make any other sound recording embodying it including storing of it in any medium by electronic or other means; (ii) to sell or give on commercial rental or offer for sale or for such rental, any copy of the sound recording; (iii) to communicate the sound recording to the public. Explanation: for the purposes of this section, a copy which has been sold once shall be deemed to be a copy already in circulation. Clause (d) defines cinematograph film which would mean storing of it in any medium by electronic or other means. Clause (e) defines sound recording. Sub‑clause (i) of clause (e) defines the right of an owner of the copyright of a sound recording to store it in any medium by any electronic or other means. Sub‑clause (iii) defines sound recording to be communication of such recording to the public. Therefore, if a sound recording is communicated to the public it would come within the meaning of copyright. Section 18 defines assignment of copyright. Section 18 reads as follows: 18. Assignment of copyright. (1) The owner of the copyright in an existing work or the prospective owner of the copyright in a future work may assign to any person the copyright either wholly or partially and either generally or subject to limitations and either for the whole term of the copyright or any part thereof: Provided that in the case of the assignment of copyright in any future work, the assignment shall take effect only when the work comes into existence: Provided further that no such assignment shall be applied to any medium or mode of exploitation of the work which did not exist or was not in commercial use at the time when the assignment was made, unless the assignment specifically referred to such medium or mode of exploitation of the work: Provided also that the author of the literary or musical work included in a cinematograph film shall not assign or waive the right to receive royalties to be shared on an equal basis with the assignee of copyright for the utilisation of such work in any form other than for the communication to the public of the work along with the cinematograph film in a cinema hall, except to the legal heirs of the authors or to a copyright society for collection and distribution and any agreement to the contrary shall be void: Provided also that the author of the literary or musical work included in the sound recording but not forming part of any cinematograph film shall not assign or waive the right to receive royalties to be shared on an equal basis with the assignee of copyright for any utilisation of such work except to the legal heirs of the authors or to a collecting society for collection and distribution and any assignment to the contrary shall be void. (2) Where the assignee of a copyright becomes entitled to any right comprised in the copyright, the assignee as respects the rights so assigned, and the assignor as respects the rights not assigned, shall be treated for the purposes of this Act as the owner of copyright and the provisions of this Act shall have effect accordingly. (3) In this section, the expression assignee as respects the assignment of the copyright in any future work includes the legal representatives of the assignee, if the assignee dies before the work comes into existence. An assignee under Section 18 has equal rights like that of an owner of a copyright. Therefore, he has every right to protect his assignment of a copyright as if he is the owner of copyright. Section 51 deals with infringement of copyright and reads as follows: 51. When copyright infringed. Copyright in a work shall be deemed to be infringed (a) when any person, without a licence granted by the owner of the Copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under this Act (i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or (ii) permits for profit, any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be infringement of copyright; or (b) when any person (i) makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or (ii) distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, or (iii) by way of trade exhibits in public, or (iv) imports into India, any infringing copies of the work: Provided that nothing in sub‑clause (iv) shall apply to the import of one copy of any work for the private and domestic use of the importer. Explanation: for the purposes of this section, the reproduction of a literary, dramatic, musical or artistic work in the form of a cinematograph film shall be deemed to be an infringing copy. A copyright is said to be infringed when any person without a licence granted by the owner of the copyright does anything to infringe the exclusive right conferred on the owner of the copyright. Section 52 deals with exceptions to infringement of copyright and it reads as follows: 52. Certain acts not to be infringement of copyright. (1) The following acts shall not constitute an infringement of copyright, namely (a) a fair dealing with any work, not being a computer programme, for the purposes of (i) private or personal use, including research; (ii) criticism or review, whether of that work or of any other work; (iii) the reporting of current events and current affairs, including the reporting of a lecture delivered in public.
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The storing of any work in any electronic medium for the purposes mentioned in this clause, including the incidental storage of any computer programme which is not itself an infringing copy for the said purposes, shall not constitute infringement of copyright. (aa) the making of copies or adaptation of a computer programme by the lawful possessor of a copy of such computer programme, from such copy (i) in order to utilise the computer programme for the purpose for which it was supplied; or (ii) to make back‑up copies purely as a temporary protection against loss, destruction or damage in order only to utilise the computer programme for the purpose for which it was supplied; (ab) the doing of any act necessary to obtain information essential for operating interoperability of an independently created computer programme with other programmes by a lawful possessor of a computer programme provided that such information is not otherwise readily available; (ac) the observation, study or test of functioning of the computer programme in order to determine the ideas and principles which underline any elements of the programme while performing such acts necessary for the functions for which the computer programme was supplied; (ad) the making of copies or adaptation of the computer programme from a personally legally obtained copy for non‑commercial personal use; (b) the transient or incidental storage of a work or performance purely in the technical process of electronic transmission or communication to the public; (c) transient or incidental storage of a work or performance for the purpose of providing electronic links, access or integration, where such links, access or integration has not been expressly prohibited by the right holder, unless the person responsible is aware or has reasonable grounds for believing that such storage is of an infringing copy: Provided that if the person responsible for the storage of the copy has received a written complaint from the owner of copyright in the work, complaining that such transient or incidental storage is an infringement, such person responsible for the storage shall refrain from facilitating such access for a period of twenty‑one days or till he receives an order from the competent court refraining from facilitating access and in case no such order is received before the expiry of such period of twenty‑one days, he may continue to provide the facility of such access; (d) the reproduction of any work for the purpose of a judicial proceeding or for the purpose of a report of a judicial proceeding; (e) the reproduction or publication of any work prepared by the Secretariat of a Legislature or, where the Legislature consists of two Houses, by the Secretariat of either House of the Legislature, exclusively for the use of the members of that Legislature; (f) the reproduction of any work in a certified copy made or supplied in accordance with any law for the time being in force; (g) the reading or recitation in public of reasonable extracts from a published literary or dramatic work; (h) the publication in a collection, mainly composed of non‑copyright matter, bona fide intended for instructional use, and so described in the title and in any advertisement issued by or on behalf of the publisher, of short passages from published literary or dramatic works, not themselves published for such use in which copyright subsists: Provided that not more than two such passages from works by the same author are published by the same publisher during any period of five years. Explanation. In the case of a work of joint authorship, references in this clause to passages from works shall include references to passages from works by any one or more of the authors of those passages or by any one or more of those authors in collaboration with any other person; (i) the reproduction of any work (i) by a teacher or a pupil in the course of instruction; or (ii) as part of the questions to be answered in an examination; or (iii) in answers to such questions; (j) the performance, in the course of the activities of an educational institution, of a literary, dramatic or musical work by the staff and students of the institution, or of a cinematograph film or a sound recording if the audience is limited to such staff and students, the parents and guardians of the students and persons connected with the activities of the institution or the communication to such an audience of a cinematograph film or sound recording; (k) the causing of a recording to be heard in public by utilising it, (i) in an enclosed room or hall meant for the common use of residents in any residential premises (not being a hotel or similar commercial establishment) as part of the amenities provided exclusively or mainly for residents therein; or (ii) as part of the activities of a club or similar organisation which is not established or conducted for profit; (l) the performance of a literary, dramatic or musical work by an amateur club or society, if the performance is given to a non‑paying audience, or for the benefit of a religious institution; (m) the reproduction in a newspaper, magazine or other periodical of an article on current economic, political, social or religious topics, unless the author of such article has expressly reserved to himself the right of such reproduction., (n) the storing of a work in any medium by electronic means by a non‑commercial public library, for preservation if the library already possesses a non‑digital copy of the work; (o) the making of not more than three copies of a book (including a pamphlet, sheet of music, map, chart or plan) by or under the direction of the person in charge of a non‑commercial public library for the use of the library if such book is not available for sale in India; (p) the reproduction, for the purpose of research or private study or with a view to publication, of an unpublished literary, dramatic or musical work kept in a library, museum or other institution to which the public has access: Provided that where the identity of the author of any such work, or, in the case of a work of joint authorship, of any of the authors is known to the library, museum or other institution, the provisions of this clause shall apply only if such reproduction is made at a time more than sixty years from the date of the death of the author or, in the case of a work of joint authorship, from the death of the author whose identity is known or, if the identity of more than one author is known, from the death of such of those authors who dies last; (q) the reproduction or publication of (i) any matter which has been published in any Official Gazette except an Act of a Legislature; (ii) any Act of a Legislature subject to the condition that such Act is reproduced or published together with any commentary thereon or any other original matter; (iii) the report of any committee, commission, council, board or other like body appointed by the Government if such report has been laid on the Table of the Legislature, unless the reproduction or publication of such report is prohibited by the Government; (iv) any judgment or order of a court, tribunal or other judicial authority, unless the reproduction or publication of such judgment or order is prohibited by the court, the tribunal or other judicial authority, as the case may be; (r) the production or publication of a translation in any Indian language of an Act of a Legislature and of any rules or orders made thereunder (i) if no translation of such Act or rules or orders in that language has previously been produced or published by the Government; or (ii) where a translation of such Act or rules or orders in that language has been produced or published by the Government if the translation is not available for sale to the public: Provided that such translation contains a statement at a prominent place to the effect that the translation has not been authorised or accepted as authentic by the Government; (s) the making or publishing of a painting, drawing, engraving or photograph of a work of architecture or the display of a work of architecture., (t) the making or publishing of a painting, drawing, engraving or photograph of a sculpture, or other artistic work falling under sub‑clause (iii) of clause (e) of Section 2, if such work is permanently situated in a public place or any premises to which the public has access; (u) the inclusion in a cinematograph film of (i) any artistic work permanently situated in a public place or any premises to which the public has access; or (ii) any other artistic work, if such inclusion is only by way of background or is otherwise incidental to the principal matters represented in the film; (v) the use by the author of an artistic work where the author of such work is not the owner of the copyright therein, of any mould, cast, sketch, plan, model or study made by him for the purpose of the work: Provided that he does not thereby repeat or imitate the main design of the work; (w) the making of a three‑dimensional object from a two‑dimensional artistic work, such as a technical drawing, for the purposes of industrial application of any purely functional part of a useful device; (x) the reconstruction of a building or structure in accordance with the architectural drawings or plans by reference to which the building or structure was originally constructed: Provided that the original construction was made with the consent or licence of the owner of the copyright in such drawings and plans; (y) in relation to a literary, dramatic, artistic or musical work recorded or reproduced in any cinematograph film, the exhibition of such film after the expiration of the term of copyright therein: Provided that provisions of sub‑clause (ii) of clause (a), sub‑clause (i) of clause (b) and clauses (d), (f), (g), (m), and (p) shall not apply as respects any act unless that act is accompanied by an acknowledgment (i) identifying the work by its title or other description; and (ii) unless the work is anonymous or the author has previously agreed or required that no acknowledgment of his name should be made, also identifying the author; (z) the making of an ephemeral recording, by a broadcasting organisation using its own facilities for its own broadcast of a work which it has the right to broadcast; and the retention of such recording for archival purposes on the ground of its exceptional documentary character; (za) the performance of a literary, dramatic or musical work or the communication to the public of such work or of a sound recording in the course of any bona fide religious ceremony or an official ceremony held by the Central Government or the State Government or any local authority. Explanation. For the purpose of this clause, religious ceremony includes a marriage procession and other social festivities associated with a marriage; (zb) the adaptation, reproduction, issue of copies or communication to the public of any work in any accessible format, by (i) any person to facilitate persons with disability to access works including sharing with any person with disability such accessible format for private or personal use, educational purpose or research; or (ii) any organisation working for the benefit of persons with disabilities in case the normal format prevents the enjoyment of such works by such persons: Provided that the copies of the works in such accessible format are made available to the persons with disabilities on a non‑profit basis but to recover only the cost of production: Provided further that the organisation shall ensure that the copies of works in such accessible format are used only by persons with disabilities and takes reasonable steps to prevent its entry into ordinary channels of business. Explanation. For the purposes of this sub‑clause, any organisation includes an organisation registered under Section 12‑A of the Income Tax Act, 1961 and working for the benefit of persons with disability or recognised under Chapter X of the Persons with Disabilities (Equal Opportunities, Protection or Rights and Full Participation) Act, 1995 or receiving grants from the government for facilitating access to persons with disabilities or an educational institution or library or archives recognised by the Government; (zc) the importation of copies of any literary or artistic work, such as labels, company logos or promotional or explanatory material, that is purely incidental to other goods or products being imported lawfully., The provisions of Section 55 deal with civil remedies for infringement of copyright. It reads as follows: 55. Civil remedies for infringement of copyright. (1) Where copyright in any work has been infringed, the owner of the copyright shall, except as otherwise provided by this Act, be entitled to all such remedies by way of injunction, damages, accounts and otherwise as are or may be conferred by law for the infringement of a right: Provided that if the defendant proves that at the date of the infringement he was not aware and had no reasonable ground for believing that copyright subsisted in the work, the plaintiff shall not be entitled to any remedy other than an injunction in respect of the infringement and a decree for the whole or part of the profits made by the defendant by the sale of the infringing copies as the Supreme Court of India may in the circumstances deem reasonable. (2) Where, in the case of a literary, dramatic, musical or artistic work, or, subject to the provisions of sub‑section (3) of Section 13, a cinematograph film or sound recording, a name purporting to be that of the author, or the publisher, as the case may be, of that work, appears on copies of the work as published, or, in the case of an artistic work, appeared on the work when it was made, the person whose name so appears or appeared shall, in any proceeding in respect of infringement of copyright in such work, be presumed, unless the contrary is provided, to be the author or the publisher of the work, as the case may be. (3) The costs of all parties in any proceedings in respect of the infringement of copyright shall be at the discretion of the Supreme Court of India., Section 63 makes infringement of copyright an offence and reads as follows: 63. Offence of infringement of copyright or other rights conferred by this Act. Any person who knowingly infringes or abets the infringement of (a) the copyright in a work, or (b) any other right conferred by this Act except the right conferred by Section 53‑A, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees: Provided that where the infringement has not been made for gain in the course of trade or business the Supreme Court of India may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months or a fine of less than fifty thousand rupees. Explanation. Construction of a building or other structure which infringes or which, if completed, would infringe the copyright in some other work shall not be an offence under this section., The submission at the threshold of the learned Senior Counsel for the petitioners that the complainant is not the owner of the copyright; it is someone else and he is only a licensee, is noted only to be rejected. The complainant is not a licensee, but an assignee in terms of Section 18 of the Act. Section 18 makes the assignee have equal rights over the copyright for its utilisation in any form as sub‑section (2) of Section 18 mandates that the assignee of the copyright becomes entitled to any right comprised in the copyright and shall be treated as the copyright holder for the purpose of the Act or the owner of the copyright for the purpose of the Act. The complainant has produced documents to demonstrate that he is an assignee of the copyright of the music for the film KGF Chapter‑2. Therefore, in terms of Section 18 the complainant has every right to complain infringement of the copyright that is assigned in his favour. Consequently, the threshold submission of the learned Senior Counsel for the petitioners collapses. Learned Senior Counsel for the petitioners has laid much emphasis on Section 52 of the Act to contend that the action of the petitioners would come within the explanations/exceptions carved out in Section 52. By the very definition, the provision deals with exceptions. Any benefit of exception claimed by any accused under any penal law will always have to be a matter of trial; when the offence is alleged to fall within the ingredients of a particular provision of law which makes the action an offence, it cannot be quashed on the ground of exceptions. Any exception claimed is always a matter of trial albeit, in certain circumstances, as Section 52 has several explanations and exceptions which can be taken note of or benefit of, it would become available only at a later point in time. In the present case, even the investigation is yet to commence. The learned Senior Counsel for the petitioners has not pointed out which specific head of Section 52 would bring them out of the web of the crime. There are numerous heads under Section 52 which carve out exception for a crime under Section 63. In the absence of any specific averment to that effect or even a contention, I decline to consider any such specific exception. The other submission of the learned Senior Counsel for the petitioners is that the complainant has a civil remedy for infringement of copyright and a criminal proceeding at the outset is not maintainable in terms of Section 55 of the Act. Section 55 deals with civil remedies for infringement of copyright, but it would be maintainable on a presumption that copyright has been infringed unless the contrary is proved. It is not the law that merely because a civil remedy exists, a criminal case cannot be registered. The coordinate Bench of the Supreme Court of India, in a judgment dated 31‑05‑2023, considered an identical circumstance where a commercial suit was pending against infringement of a copyright and, on that pendency, no crime was registered for offences under Section 63. The coordinate Bench held as follows: a) Chapter XI of the 1957 Act comprising Sections 51 to 53A provides for civil remedies by way of injunction, damages, accounts or otherwise in the case of infringement of copyrights. The substantive part of Section 55 being very relevant is reproduced: (1) Where copyright in any work has been infringed, the owner of the copyright shall, except as otherwise provided by this Act, be entitled to all such remedies by way of injunction, damages, accounts and otherwise as are or may be conferred by law for the infringement of a right. For the alleged infringement of registered copyrights, the petitioner's civil suit is pending and an order of temporary injunction has been granted by the Civil Court, as evidenced by the material placed on record. Chapter XIII comprising Sections 63 to 70 mentions the offences relating to copyright infringements. Section 63 being one of the charging provisions states: Any person who knowingly infringes or abets the infringement of: (a) the copyright in a work, or (b) any other right conferred by this Act except the right conferred by Section 53A, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees. In other words, the Act provides for both civil remedy and criminal prosecution in the case of such an infringement. The outcome of one does not depend upon the outcome of the other, subject to all just exceptions. The petitioner has already filed an FIR which has been duly registered by the jurisdictional police. b) The infringement of a copyright gives rise to a cause of action on which a civil proceeding such as an injunction suit can be structured; it also can give rise to a cause of action for the institution of a criminal proceeding; the former is preventive, remedial, compensatory or otherwise, whereas the latter is primarily punitive. The object, nature and outcome of these proceedings are therefore not the same. That is how the statutory scheme is enacted by Parliament. Merely because a civil dispute is being fought between the parties, the criminal proceedings cannot be halted per se on that ground. This view gains support from the Honorable Delhi High Court decision in the JAY case, where civil litigation as to use of a work was pending and there was no agreement between the parties either by way of an interim arrangement nor was there any interim order of the court, and it was held that mere withholding of mention of such litigation would not preclude the Trial Court from framing charges under Section 63 of the 1957 Act. There may be cases where the processing of one proceeding is kept at bay because of the likely adverse consequences that follow on a particular party involved in the other proceeding, both having been structured on the same set of facts. However, this is a different aspect of the matter. c) The learned Senior Advocate appearing for the petitioner is right in contending that the same fact matrix may give rise to a cause of action in tort, in contract and in crime; unless law interdicts a particular action inter alia in criminal law, the police cannot keep the complaint pending on the ground that parties are fighting a civil proceeding on the same fact matrix. In Cambridge University at Page 1 it is said: Writers on English legal history have often mentioned that in early law there was no clear distinction between criminal and civil offences. The two have been called a viscous intermixture and it has been explained that the affinity between tort and crime is not in the least surprising when we remember how late in the history of law there emerged any clear conception of a difference between them. Similarly, in CRIMINAL LAW by Smith and Hogan, 7th Edition, ELBS at page 19 it is written most torts are crimes as well, though some torts are not crimes and some crimes are not torts. It is not in the nature of the act, but in the nature of the proceedings that the distinction consists; and both types of proceeding may follow where an act is both a crime and a tort. In view of this clarity obtaining in criminal jurisprudence, the reluctance of the police to process the complaint may not be correct. In the above circumstances, this writ petition succeeds; a writ of mandamus is issued to the respondent‑police to undertake and accomplish the investigation in the subject offence within an outer limit of three months. Delay, if brooked, may result into an adverse entry being made in the service records of the concerned police official. The coordinate Bench interprets Section 63 and civil remedies available under Sections 51 to 53A including Section 55 and holds that the crime ought to be registered as it cannot be controlled by Section 55. They are remedies altogether independent. In light of the judgment of the coordinate Bench, the submission of the learned Senior Counsel that since the civil suit is pending, the investigation in the crime should not be permitted, does not hold water., Long before the judgment of the coordinate Bench, in an identical circumstance, the High Court of Madras in SUMEET MACHINES HOLDING LIMITED considered the same submission under the Act and held as follows: 14. The analogous provisions in the Copyright Act, 1957, may now be referred to Chapter XII, covered by Sections 54 to 62, which deals with civil remedies for infringement of copyright. Section 54 defines owner of copyright by way of an inclusive definition and Section 55 deals with civil remedies for infringement of copyright. Section 63 prescribes punishment for the offence of infringement of copyright or other rights conferred by the Act, while Section 63‑A provides for enhanced penalty on second and subsequent convictions. 15. However, the single factor to be taken note of here is that no provision had been engrafted in the two Acts interdicting or inhibiting both civil and criminal actions being proceeded simultaneously before competent forums. 16. Taking notice of the fact‑situation, impelling or compelling the resort to one course or the other, or both courses simultaneously, as has been done by various Courts of superior jurisdiction and the apex Court in the decisions cited supra, and on an analogy of the various provisions adumbrated under the two Acts, I am of the view that in the instant case, both actions have to proceed simultaneously and if done so, no prejudice is likely to be caused to any of the parties, as both the actions are not mutually exclusive, but clearly co‑extensive and quite different in content and consequence. hereby affixing my seal of approval to the bone of contention urged by Mr. U.N.R. Rao, learned Senior Counsel appearing for the respondents. 17. The second bone of contention as urged is related to the feasibility or otherwise of fastening or mulcting liability upon petitioners 2 to 4/accused 2 to 4 in the facts and circumstances of the case, on the face of the sanguine provisions adumbrated either under Section 88 of the Trade and Merchandise Marks Act or under Section 69 of the Copyright Act, both provisions being identical in tenor and terms without any variation whatever. There is no doubt that the first petitioner accused‑1 Company would fall within the definition of the term Company as contemplated by either of the aforesaid provisions. The effect of sub‑section (1) of these provisions is that when an offence is said to have been committed by a Company, apart from fastening liability upon the Company, other personnel who are in charge of and responsible for the conduct of the affairs of the company at the time when the offence was committed, are also mulcted with liability for the offences stated to have been committed by the company. There is also an identical proviso appended to both these sub‑sections, according to which, if the person proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence, he shall not be liable for any punishment.
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Sub-section (2) of the aforesaid provisions stipulates that, notwithstanding anything contained in sub-section (1), where an offence under these Acts has been committed by a Company and it is proved that the offence has been committed with the consent or connivance of, or that the commission of the offence is attributable to any negligence on the part of any director, manager, secretary, or other officer of the company, such officer shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. (Emphasis supplied) The High Court of Madras holds that both actions can proceed simultaneously and if done so, no prejudice is likely to be caused to any of the parties., In the light of the judgment of the coordinate Bench and that of the High Court of Madras, the submission of the learned senior counsel that the proceedings under Section 63 will have to wait for the outcome of the civil suit is rendered unacceptable and it is unsustainable. Section 63 makes it an offence if any person knowingly infringes or abets the infringement of a copyright in a work or any other right conferred under this Act., Now, whether the copyright has been infringed or not is what is to be noticed, albeit prima facie. It is not in dispute that the song was being played in the background and those videos have been uploaded on YouTube and when the videos are uploaded there is a declaration in every video, be it Twitter, Instagram, Facebook or YouTube. The declaration reads as follows: 'This video is an intellectual property belonging to the Indian National Congress. Please seek prior permission before using any part of this video in any form.' (Emphasis added) This declaration is found on every platform where the video is played. The declaration is as afore‑quoted which depicts that the video is an intellectual property belonging to the Indian National Congress and without prior permission using any part of the video in any form would be illegal., It is not the original copyright of the Indian National Congress who have put it in the manner that they have portrayed. This would be circumstance enough to demonstrate that the Indian National Congress has tampered with the source code and have replaced the song with their song and have portrayed the third petitioner to be a hero of the song. Portraying the third petitioner as a hero in any of the videos cannot become a crime. But, the song that is played in the video, without seeking prior permission or agreement, does amount to violation or infringement of copyright of the complainant., The Congress reels are found on certain platforms which show at the bottom of the reel that it is the original audio of the Congress and to the original audio it has a thumbnail 'Try it' which clearly shows that the audio was playable by the general public. If the petitioners had not meddled with the source code, they could not have tampered with the audio and replaced it with their own audio. Tampering the source code without permission and freely playing the audio would undoubtedly amount to infringement of copyright of the complainant. The petitioners appear to have taken the copyright of the complainant for granted and have tinkered and meddled with it. Therefore, prima facie, all these factors become a matter of evidence which have to be thrashed out by an investigation in the least., For the aforesaid reasons, finding no merit in the petition, the petition stands rejected. However liberty is reserved to the petitioners to avail of such remedy as is available in law at the appropriate time before the appropriate fora.
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Union Territory of Ladakh through its Chief Secretary, Chief Election Officer, Union Territory of Ladakh, District Election Officer (Kargil), Administrative Secretary, Election Department, Union Territory of Ladakh; Jammu and Kashmir National Conference, through its General Secretary; and Election Commission of India. Heard learned counsel for the parties., Leave granted., The present appeal is directed against the Judgment and Order dated 14.08.2023 (hereinafter referred to as the Impugned Judgment) rendered by a learned Division Bench of the High Court of Jammu and Kashmir and Ladakh at Srinagar (hereinafter referred to as the High Court) dismissing Letters Patent Appeal No. 151 of 2023 filed by the Appellants and upholding the interim order of a learned Single Judge dated 09.08.2023 in Writ Petition (Civil) No. 1933 of 2023., The controversy involved in this lis is the non‑allocation of the Plough symbol to the writ petitioner, the Jammu and Kashmir National Conference (hereinafter referred to as the Jammu and Kashmir National Conference) for its candidates to contest the then‑upcoming General Elections of the Ladakh Autonomous Hill Development Council, Kargil (hereinafter referred to as the Ladakh Autonomous Hill Development Council). In view of the urgency in the matter, the learned Single Judge passed an interim order on 09.08.2023, the operative portion of which at Paragraph 11 reads as follows:, Keeping in view that the upcoming General Election of the Ladakh Autonomous Hill Development Council stands announced, the petitioner‑party is directed to approach the office of the respondents 1 to 3 & 5 for notifying the reserved symbol (Plough) already allotted to it, and respondents 1 to 3 & 5 shall notify the symbol allotted to the petitioner‑party in terms of Paragraphs 10 and 10(A) of the Election Symbols (Reservation and Allotment) Order, 1968, and allow the candidates set up by the petitioner‑party to contest on the reserved election symbol (Plough) already allotted to the party., Aggrieved, the Appellants moved the learned Division Bench of the High Court by preferring an appeal, which after hearing was dismissed vide Impugned Judgment on 14.08.2023., Mr. K. M. Nataraj, learned Additional Solicitor General (hereinafter referred to as the Additional Solicitor General) for the Appellants submitted that the learned Single Judge and the learned Division Bench of the High Court have issued directions contrary to law. It was submitted that both orders were passed on an erroneous assumption that the provisions of the Election Symbols (Reservation and Allotment) Order, 1968 (hereinafter referred to as the 1968 Order) would be applicable in elections to the Ladakh Autonomous Hill Development Council. The Additional Solicitor General canvassed that this is not the correct legal position as the Ladakh Autonomous Hill Development Council election is being conducted by the Election Authority of the Union Territory of Ladakh constituted under Rule 5 of the Ladakh Autonomous Hill Development Councils (Election) Rules, 1995 (hereinafter referred to as the 1995 Rules). It was contended that the Election Commission of India (hereinafter referred to as the Election Commission of India) is empowered to hold elections to the Parliamentary and State Assembly constituencies and for the present Ladakh Autonomous Hill Development Council elections, the Election Commission of India does not exercise any authority. Thus, the Additional Solicitor General submitted that any reference to the provisions of the 1968 Order is misplaced., The Additional Solicitor General further contended that Paragraphs 9, 10 and 10(A) of the 1968 Order speak of restrictions on the allotment of symbols reserved for State Parties in States where such parties are not recognised; concession to candidates set up by a State Party at elections in other States or Union Territories; and concession to candidates set up by an unrecognised party which was earlier recognised as a National or State Party, respectively. Accordingly, he stated that such concession can be only for the purposes of Parliamentary and State Assembly elections, and not for the election in question., The Additional Solicitor General submitted that the reference by the Election Commission of India in its communication dated 18.07.2023 to the Jammu and Kashmir National Conference, that it can avail the concession under Paragraph 10 of the 1968 Order, can neither confer any right on the Jammu and Kashmir National Conference nor compel the Election Authority of the Union Territory of Ladakh to allow the prayer of the Jammu and Kashmir National Conference as made in the Writ Petition before the High Court. With regard to the opinion of the Law Department of the Appellant No.1, as quoted in the communication of the District Election Officer (District Magistrate), Kargil, dated 12.07.2023 to the Chief Electoral Officer, Union Territory of Ladakh, the same was at best only advisory and not binding, as it is for the Election Authority of the Union Territory of Ladakh to independently consider such request., He submitted that none of the candidates who have filled up and submitted their nomination forms have either sought the Plough symbol or indicated in the relevant column that they were candidates of the Jammu and Kashmir National Conference, and on this score alone, at this stage, the Jammu and Kashmir National Conference was not entitled to any indulgence by the Supreme Court of India., He summed up his arguments by stating that, as of now, the process of elections had already been set in motion. The Additional Solicitor General pointed out that filing of the nomination forms had begun from 16.08.2023 and had reached the penultimate stage since the last date of withdrawal of nominations (26.08.2023) had already elapsed. It was stated that now only polling remained to be held on 10.09.2023 and, in this view of the matter, the Supreme Court of India may set aside the Impugned Order. The Supreme Court's order dated 01.09.2023 is quoted for ready reference: Application for impleadment is rejected. Heard learned counsel for the parties. Judgment reserved. List the matter for pronouncement on 06.09.2023., Learned counsel for the Jammu and Kashmir National Conference submitted that the orders of the learned Single Judge dated 09.08.2023 and the learned Division Bench dated 14.08.2023 are self‑speaking and have dealt in detail with the contentions of the Appellants and the same have been negated on cogent legal and factual grounds. It was submitted that there should not have been, in the first place, any issue with the Appellants in granting the Plough symbol for the reason that the Jammu and Kashmir National Conference is the incumbent ruling party in the Ladakh Autonomous Hill Development Council, and was entitled to the Plough symbol, since the same was neither part of the list of free symbols nor allotted to any other National or State Party recognised either by the Election Commission of India or by the Election Authority for the Union Territory of Ladakh. It was submitted that a completely partisan and arbitrary approach had been adopted by the Appellants in denying their preferred symbol (Plough) for oblique reasons to deny a level‑playing field between candidates. It was further submitted that the Plough symbol was well‑known to the electorate for decades as being exclusively associated with the Jammu and Kashmir National Conference; the denial of the same is clearly intended to cause unjustified prejudice. It was stated that undue advantage would accrue to the remaining candidates/parties contesting the Ladakh Autonomous Hill Development Council elections., He urged the Supreme Court of India to take note of the fact that despite the learned Single Judge having passed directions well before the commencement of even the filing of nominations, upheld by the learned Division Bench, which again was before the start of the nomination process, and despite there being a contempt case pending before the learned Single Judge, which was adjourned on prayer made by the Appellants citing the pendency of the present appeal, the Appellants had not complied with the orders of the High Court. In this backdrop, learned counsel submitted that to take a stand before the Supreme Court of India that now, due to the efflux of time, no relief can be granted to the Jammu and Kashmir National Conference, was clearly dishonest conduct. It was submitted that the Supreme Court of India would not let a just cause be defeated only because of delay occasioned by the other side and the Appellants cannot take advantage of such delay caused by them to the detriment of the Jammu and Kashmir National Conference's bona fide, legitimate and genuine claim., Learned counsel submitted that allotment of symbols by the Appellants to the National Parties and free symbols shown in the Notification for the present elections clearly shows that the same are in conformity with the 1968 Order. Thus, he submitted, the Appellants are precluded from selectively deciding which provisions under the 1968 Order would be applicable and which would not. It was submitted that a harmonious reading of Paragraphs 9, 10, 10(A) as well as 12 of the 1968 Order would indicate beyond doubt that, in the absence of anything to the contrary, the Appellants were required to be guided by the 1968 Order in toto, which was also the indication in the letter written by the Election Commission of India to the Jammu and Kashmir National Conference and the same view was taken by the Law Department in its Legal Opinion to the Appellants., 9. Restriction on the allotment of symbols reserved for State parties in States where such parties are not recognised. A symbol reserved for a State party in any State (a) shall not be included in the list of free symbols for any other State or Union territory, and (b) shall not be reserved for any other party which subsequently becomes eligible, on fulfilment of the conditions specified in paragraph 6, for recognition as a State party in any other State: Provided that nothing contained in clause (b) shall apply in relation to a political party, for which the Commission has, immediately before the commencement of the Election Symbols (Reservation and Allotment) (Amendment) Order, 1997, already reserved the same symbol which it has also reserved for some other State party or parties in any other State or States.\n\n10. Concessions to candidates set up by a State party at elections in other States or Union territories. If a political party, which is recognised as a State party in some State or States, sets up a candidate at an election in a constituency in any other State in which it is not a recognised State party, then such candidate may, to the exclusion of all other candidates in the constituency, be allotted the symbol reserved for that party in the State or States in which it is a recognised State Party, notwithstanding that such symbol is not specified in the list of free symbols for such other State or Union territory, on the fulfilment of each of the following conditions, namely: (a) that an application is made to the Commission by the said party for exclusive allotment of that symbol to the candidate set up by it, not later than the third day after the publication in the Official Gazette of the notification calling the election; (b) that the said candidate has made a declaration in his nomination paper that he has been set up by that party at the election and that the party has also fulfilled the requirements of clauses (b), (c), (d) and (e) of paragraph 13 read with paragraph 13A in respect of such candidate; and (c) that in the opinion of the Commission there is no reasonable ground for refusing the application for such allotment: Provided that nothing contained in this paragraph shall apply to a candidate set up by a State party at an election in any constituency in a State in which that party is not a State Party and where the same symbol is already reserved for some other State Party in that State.\n\n10A. Concession to candidates set up by an unrecognised party which was earlier recognised as a National or State party. If a political party, which is unrecognised at present but was a recognised National or State party in any State or Union territory not earlier than six years from the date of notification of the election, sets up a candidate at an election in a constituency in any State or Union territory, whether such party was earlier recognised in that State or Union territory or not, then such candidate may, to the exclusion of all other candidates in the constituency, be allotted the symbol reserved earlier for that party when it was a recognised National or State party, notwithstanding that such symbol is not specified in the list of free symbols for such State or Union territory, on the fulfillment of each of the following conditions, namely: (a) that an application is made to the Commission by the said party for the exclusive allotment of that symbol to the candidate set up by it, not later than the third day after the publication in the Official Gazette of the notification calling the election; (b) that the said candidate has made a declaration in his nomination paper that he has been set up by that party at the election and that the party has also fulfilled the requirements of clauses (b), (c), (d) and (e) of paragraph 13 read with paragraph 13A in respect of such candidate; and (c) that in the opinion of the Commission there is no reasonable ground for refusing the application for such allotment: Provided that nothing contained in this paragraph shall apply to a candidate set up by the said party at an election in any constituency in a State or Union territory where the same symbol is already reserved for some other National or State party in that State or Union Territory.\n\n12. Choice of symbols by other candidates and allotment thereof. (1) Any candidate at an election in a constituency in any State or Union territory, other than (a) a candidate set up by a National Party; or (b) a candidate set up by a political party which is a State Party in that State; or (c) a candidate referred to in paragraph 10 or paragraph 10A; shall choose, and shall be allotted, in accordance with the provisions hereafter set out in this paragraph, one of the symbols specified as free symbols for that State or Union territory by notification under paragraph 17. (2) Where any free symbol has been chosen by only one candidate at such election, the returning officer shall allot that symbol to that candidate and to no one else. (3) Where the same free symbol has been chosen by several candidates at such election, then (a) if of those several candidates, only one is a candidate set up by an unrecognised political party and all the rest are independent candidates, the returning officer shall allot that free symbol to the candidate set up by the unrecognised political party, and to no one else; and, if, those several candidates, two or more are set up by different unrecognised political parties and the rest are independent candidates, the returning officer shall decide by lot to which of the two or more candidates set up by the different unrecognised political parties that free symbol shall be allotted, and allot that free symbol to the candidate on whom the lot falls, and to no one else: Provided that where of the two or more such candidates set up by such different unrecognised political parties, only one is, or was, immediately before such election, a sitting member of the House of the People, or, as the case may be, of the Legislative Assembly (irrespective of the fact as to whether he was allotted that free symbol or any other symbol at the previous election when he was chosen as such member), the returning officer shall allot that free symbol to that candidate, and to no one else; (b) if, of those several candidates, no one is set up by any unrecognised political party and all the independent candidates, but one of the independent candidates is, or was, immediately before such election a sitting member of the House of the People, or, as the case may be, of the legislative Assembly, and was allotted that free symbol at the previous election when he was chosen as such member, the Returning Officer shall allot that free symbol to that candidate, and to no one else; and (c) if, of those several candidates, being all independent candidates, no one is, or was, a sitting member as aforesaid, the returning officer shall decide by lot to which of those independent candidates that free symbol shall be allotted, and allot that free symbol to the candidates on whom the lot falls, and to no one else., Sections 12 and 13 of the Ladakh Autonomous Hill Development Councils Act, 1997 (hereinafter referred to as the 1997 Act) read as under:\n\n12. Disputes regarding elections. (1) No election shall be called in question except by an election petition presented in such manner as may be prescribed and before such authority as may be appointed by Government, from time to time, by notification in the Government Gazette: Provided that no person below the rank of a District Judge shall be appointed for the purpose of this section. (2) No election shall be called in question except on any one or more of the following grounds, namely: (a) that on the date of his election the returned candidate was not qualified or was disqualified, to be chosen to fill the seat in the Council; (b) that a corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of the returned candidate or his election agent. Explanation: For the purposes of this section corrupt practice shall mean any of the corrupt practices specified in section 132 of the Jammu and Kashmir Representation of the People Act, 1957; (c) that any nomination has been improperly rejected; (d) that the result of the election in so far as it concerns the returned candidate has been materially affected (i) by any improper acceptance of any nomination; or (ii) by any corrupt practice committed in the interest of the returned candidate by an agent other than his election agent; or (iii) by the improper reception, refusal or rejection of any vote; or (iv) by the reception of any vote which is void; or (v) by any non‑compliance with provisions of this Act or of any rules or orders made thereunder. (3) At the conclusion of the trial of an election petition the authority appointed under sub‑section (1) shall make an order (a) dismissing the election petition; or (b) declaring the election of all or any of the returned candidates to be void; or (c) declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidates to have been duly elected. (4) If a petitioner in addition to calling in question the election of a returned candidate makes a declaration that he himself or any other candidate has been duly elected and the authority under sub‑section (1) is of opinion that (a) in fact the petitioner or such other candidate has received the majority of valid votes; or (b) but for the votes obtained by the returned candidate by corrupt practice the petitioner or such other candidate would have obtained the majority of the valid votes, the authority as aforesaid shall, after declaring the election of the returned candidate to be void, declare the petitioner or such other candidate, as the case may be, to have been duly elected.\n\n13. Procedure for election disputes. The procedure provided in the Code of Civil Procedure, Samvat 1977 in regard to suits shall be followed by the authority appointed under section 12 as far as it can be made applicable in the trial and disposal of an election petition under this Act., It requires no reiteration that the powers of the Supreme Court of India and the High Courts vested under the Constitution cannot be abridged, excluded or taken away, being part of the Basic Structure of our Constitution. Reference need only be made to decisions in Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225; Indira Nehru Gandhi v. Raj Narain, 1975 SCC (Supp) 1; Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625; L. Chandra Kumar v. Union of India, (1997) 3 SCC 261 and more recently, to Kalpana Mehta v. Union of India, (2018) 7 SCC 1 and Rojer Mathew v. South Indian Bank Limited, (2020) 6 SCC 1, all of which were rendered by a Bench of five or more learned Judges. Section 12 of the 1997 Act need not detain us. Insofar as Section 13 of the 1997 Act is concerned, it is by now too well‑settled that the availability of an alternative efficacious remedy is no bar to the exercise of high prerogative writ jurisdiction, in the light of various decisions, including but not limited to, State of Uttar Pradesh v. Mohammad Nooh, 1958 SCR 595; Madhya Pradesh State Agro Industries Development Corporation Ltd. v. Jahan Khan, (2007) 10 SCC 88; Maharashtra Chess Association v. Union of India, (2020) 13 SCC 285. Even on the anvil of Radha Krishan Industries v. State of Himachal Pradesh, (2021) 6 SCC 771, Section 13 of the 1997 Act does not, and cannot, impede a Constitutional Court from proceeding further. We do not wish to multiply established authorities on the point but would add the very recent Godrej Sara Lee Ltd. v. Excise and Taxation Officer‑cum‑Assessing Authority, 2023 SCC OnLine SC 95 to the list enumerated above., At the threshold, it is noted that the Election Commission of India deals with the conduct of elections to the Parliament, the State Legislative Assemblies and the State Legislative Councils. The Union Territory of Ladakh does not currently have a Legislative Assembly. The last election to the Parliamentary constituency was held in the year 2019. That said, first things first. The Legal Opinion by the Law Department remains internal advice, and advice alone, and as such, the Additional Solicitor General was correct in contending that the same would not create or confer any right in favour of the Jammu and Kashmir National Conference. In Mahadeo v. Sovan Devi, 2022 SCC OnLine SC 1118 (where one of us, Justice Vikram Nath, was part of the coram), the Supreme Court of India, after considering various case‑laws, held that \It is well settled that inter‑departmental communications are in the process of consideration for appropriate decision and cannot be relied upon as a basis to claim any right.\, In Kalpana Mehta (supra), Hon’ble Justice Dipak Misra, C.J.I., with whom four learned Judges concurred, stated: While focussing on the exercise of the power of judicial review, it has to be borne in mind that the source of authority is the Constitution of India. The Supreme Court of India has the adjudicating authority to scrutinise the limits of the power and transgression of such limits. The nature and scope of judicial review has been succinctly stated in Union of India v. Raghubir Singh, (1989) 2 SCC 754 by R.S. Pathak, C.J. thus: \The range of judicial review recognised in the superior judiciary of India is perhaps the widest and the most extensive known to the world of law. With this impressive expanse of judicial power, it is only right that the superior courts in India should be conscious of the enormous responsibility which rest on them. This is specially true of the Supreme Court, for as the highest Court in the entire judicial system the law declared by it is, by Article 141 of the Constitution, binding on all courts within the territory of India.\ Further, the Court observed that legal compulsions cannot be limited by existing legal propositions, because there will always be, beyond the frontiers of the existing law, new areas inviting judicial scrutiny and judicial choice‑making which could well affect the validity of existing legal dogma. The Court affirmed that the Supreme Court of India has the constitutional power and the authority to interpret the constitutional provisions as well as the statutory provisions, and that the power of judicial review is a sanctified function of the constitutional court., At this juncture, we think it apt to clearly state that judicial restraint cannot and should not amount to judicial abdication or passivism. The Judiciary cannot abdicate the solemn duty which the Constitution has placed on its shoulders, i.e., to protect the fundamental rights of the citizens guaranteed under Part III of the Constitution. The constitutional courts cannot sit in oblivion when fundamental rights of individuals are at stake. Our Constitution has conceived the constitutional courts to act as defenders against illegal intrusion of the fundamental rights of individuals. The Constitution, under its aegis, has armed the constitutional courts with wide powers which the courts should exercise, without an iota of hesitation or apprehension, when the fundamental rights of individuals are in jeopardy. Elucidating on the said aspect, the Supreme Court of India in Virendra Singh v. State of Uttar Pradesh, AIR 1954 SC 447, observed: \We have upon us the whole armour of the Constitution and walk from henceforth in its enlightened ways, wearing the breastplate of its protecting provisions and flashing the flaming sword of its inspiration.\
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While interpreting fundamental rights, the constitutional courts should remember that whenever an occasion arises, the courts have to adopt a liberal approach with the object to infuse lively spirit and vigour so that the fundamental rights do not suffer. It is not intended that constitutional courts should altogether depart from the doctrine of precedents; rather, it is the obligation of constitutional courts to act as sentinels on the qui vive to ardently guard the fundamental rights of individuals bestowed by the Constitution. The duty of the Supreme Court of India in this context has been aptly described in K.S. Srinivasan v. Union of India, AIR 1958 Supreme Court 419, wherein it was stated: “All I can see is a man who has been wronged and I can see a plain way out. I would take it.” Such an approach applies with more zeal in case of Article 32 of the Constitution, which has been described by Dr. B.R. Ambedkar as the very soul and heart of the Constitution, the most important article. Article 32 enjoys special status and, therefore, it is incumbent upon the Supreme Court of India, in matters under Article 32, to adopt a progressive attitude. This would be in consonance with the duty of the Supreme Court of India under the Constitution to secure the inalienable fundamental rights of individuals., The observations aforesaid are in perfect sync with what is expected of constitutional courts. They are not restricted only to Articles 32 or 226 of the Constitution but lay down a talisman of sorts. The learned Additional Solicitor General also submitted that the Appellants were entitled to take an independent decision. This goes against their stand before the learned Division Bench. If we were to agree with this, the obvious import would be that the Appellants were required to take a decision independently. As noted in Paragraphs 5 and 11 of the impugned judgment, the Appellants contended that the Election Commission of India was the competent authority to allot symbols and not the Election Authority. What then was the reason for the Appellants to shift stands? When read in conjunction with the finding at Paragraph 13 of the impugned judgment, the Appellants’ acts leave no shred of doubt that circumstances forcing the Supreme Court of India to intercede have arisen. Let us consider that the Appellants, as now sought to be projected, were entitled to arrive at an independent decision. Yet, such decision could not be whimsical, arbitrary or capricious. It would necessarily have to be (a) in accordance with lawful discretion; (b) reasonable; and (c) equitable and just. The Supreme Court of India would indicate that a genuine request, in the attendant facts, could not have been turned down only on the ground that there was no provision for the same, when such request could be acceded to (i) without any violation of law; (ii) within the jurisdictional domain and capacity of the authority concerned; (iii) without prejudice to any other stakeholder; and (iv) not militate against public interest., The High Court of India, being a constitutional court, is not, by any stretch of imagination, precluded from issuing a direction of the nature issued by it in the instant case under Article 226 of the Constitution of India, more so when such direction does not violate any statutory provision. In High Court of Tripura v. Tirtha Sarathi Mukherjee, (2019) 16 Supreme Court Cases 663, the Supreme Court of India answered in the affirmative as to the power of the High Courts under Article 226 to direct actions in a rare and exceptional situation which do not find mention in the provisions concerned. Noticing and relying upon High Court of Tripura (supra), in Aish Mohammad v. State of Haryana, 2023 Supreme Court Online SC 736, we held: Moreover, the learned Civil Judge (Junior Division) found no ground to interfere with the adverse remarks yet granted liberty to the appellant to move for expunction thereof. The learned Civil Court erred in assuming that it had the power to do so in the absence of any such provision in the Punjab Police Rules, 1934. There may be cases where a High Court under Articles 226 or 227 of the Constitution of India, or the Supreme Court of India in exercise of its constitutional powers, may specifically direct fresh consideration of a representation, even in the absence of specific provisions. In High Court of Tripura v. Tirtha Sarathi Mukherjee, the question that arose was whether, in the absence of a statutory provision, a writ petitioner could seek reevaluation of examination answer scripts. Answering, the Supreme Court of India held: The question however arises whether, even if there is no legal right to demand re‑valuation as of right, circumstances may arise which leave the Court in doubt. A grave injustice may be occasioned to a writ applicant in certain circumstances. The case may arise where, despite giving the correct answer, no marks are awarded. No doubt this must be confined to a case where there is no dispute about the correctness of the answer. Further, if there is any doubt, the doubt should be resolved in favour of the examining body rather than the candidate. The wide power under Article 226 may continue to be available even though there is no provision for re‑valuation where a candidate, despite having given the correct answer and where there can be no doubt, is treated as having given the wrong answer and consequently is found disentitled to any marks., Should the second circumstance be demonstrated to be present before the writ court, can the writ court become helpless despite the vast reservoir of power which it possesses? It is one thing to say that the absence of provision for re‑valuation will not enable the candidate to claim the right of evaluation as a matter of right and another to say that in no circumstances whatsoever where there is no provision for re‑valuation will the writ court exercise its undoubted constitutional powers. We reiterate that the situation can only be rare and exceptional. Elections to any office or body are required to be free, fair and transparent. Elections lie at the core of democracy. The authority entrusted by law to hold or conduct such elections is to be completely independent of any extraneous influence or consideration. It is surprising that the Union Territory of Ladakh not only denied R1 the Plough symbol, but even upon timely intervention by the learned Single Judge, has left no stone unturned not only to resist but also to frustrate a cause simply by efflux of time., A detailed dive into the sequence of events is apposite. R1 was before the concerned authorities, by way of representation, well in time and much before the notification dated 02/05/08/2023 was published, by impugning the notification dated 26.07.2023 which denied it the Plough symbol. R1 had moved the Election Commission of India, which opined, by way of communication dated 18.07.2023, that the Election Commission of India does not allocate any symbol for local body elections as the same falls within the domain of the State Election Commission concerned. The Election Commission of India stated that as there is no Legislative Assembly in the Union Territory of Ladakh and the 1968 Order does not provide for recognition to parties in a Union Territory without a Legislative Assembly, R1 could not be recognised in the Union Territory of Ladakh. However, it was further noted that as R1 is a recognized State Party in the Union Territory of Jammu and Kashmir with its reserved symbol being the Plough, it could avail concession under Paragraph 103 of the 1968 Order., On 15.05.2023, the Election Commission of India updated its notification dated 23.09.2021 specifying the names of recognised National and State Parties and the list of free symbols where R1 was again recognised as a State Party, though for the Union Territory of Jammu and Kashmir only. On 31.05.2023, R1 made a representation to Appellant No.2 seeking recognition as a State Party and allotment of the Plough symbol for all elections in the Union Territory of Ladakh. Appellant No.2 forwarded the representation to Appellant No.3 for comments. On 07.06.2023, Appellant No.3 advised Appellant No.2 to approach the Election Commission of India. On 08.06.2023, R1 sought recognition as a State Party in the Union Territory of Ladakh and allotment of the Plough symbol., On 07.07.2023, R1 represented to Appellant No.2 seeking recognition as a State Party in the Union Territory of Ladakh with the Plough symbol. Appellant No.2 forwarded the representation to Appellant No.3 on 11.07.2023 and sought comments thereon. On 12.07.2023, Appellant No.3 wrote to Appellant No.2, incorporating the opinion of the Law Department, which was in favour of R1. Appellant No.3 indicated that R1 can be recognised and provided a reserved symbol for Ladakh Autonomous Hill Development Council elections by the Administration of the Union Territory of Ladakh under the relevant rules. No action was taken and no order was passed pursuant to Appellant No.3’s communication dated 12.07.2023 to Appellant No.2. Then, the Election Department of the Union Territory of Ladakh issued a notification on 26.07.2023 notifying the list of reserved and free symbols, in terms of the Election Commission of India’s notification dated 15.05.2023. R1 approached the High Court on 29.07.2023 challenging the notification dated 26.07.2023 and seeking a mandamus to notify the Plough symbol as its reserved symbol for elections to the Ladakh Autonomous Hill Development Council. The writ petition being pending, on 05.08.2023 the Election Department of the Union Territory of Ladakh notified the schedule of elections to constitute the 5th Ladakh Autonomous Hill Development Council, Kargil. In such background, an interim order came to be passed by the learned Single Judge and affirmed by the learned Division Bench., The Supreme Court of India notes, with concern, that the Appellants, while sitting on the representation of R1, went ahead and notified the elections on 02/05.08.2023. We are unable to appreciate such conduct. This recalcitrance to decide in time speaks volumes. Instances like these raise serious questions., Having considered the matter in extenso, the Supreme Court of India does not find any merit in the present appeal. The request for allotment of the Plough symbol by R1 was bona fide, legitimate and just, for the plain reason that in the erstwhile State of Jammu and Kashmir (which included the present Union Territory of Ladakh), it was a recognized State Party having been allotted the Plough symbol. Upon bifurcation of the erstwhile State of Jammu and Kashmir and the creation of two new Union Territories, namely the Union Territory of Jammu and Kashmir and the Union Territory of Ladakh, though the Election Commission of India had not notified R1 as a State Party for the Union Territory of Ladakh, it cannot be simpliciter that R1 was not entitled to the allotment of the Plough symbol, in the factual background. What is also clear is that the Appellants are attempting to approbate and reprobate, which the Supreme Court of India will not countenance., In the present case, there is no conflict with any other stakeholder for the reason that the Plough symbol is neither a symbol exclusively allotted to any National or State Party nor one of the symbols shown in the list of free symbols. Thus, there was and is no impediment in such symbol being granted to R1. This is also fortified in the factual setting of the Plough symbol being the reserved symbol for R1 in the erstwhile State of Jammu and Kashmir and even for the Union Territory of Jammu and Kashmir, where the same symbol stands allotted to it., The contention of the learned Additional Solicitor General for the Appellants that the Plough symbol cannot be allotted has been supported by neither any reason nor any legal impediment. In the absence of anything contrary in any rule framed for conduct of the elections in question, relating to allotment of symbols, the provisions of the 1968 Order can safely be relied upon, at the very least, as a guideline to the exercise of executive power of like nature. Thus, a harmonious reading of Paragraphs 9, 10, 10(A) and 12 would clearly indicate that under the terms of the 1968 Order, the request of R1 is not bereft of justification. At the cost of repetition, the Supreme Court of India would indicate that nothing substantive has been shown to indicate that allotment of the Plough symbol would in any way be an infraction or go against the public interest., Another major issue canvassed by the learned Additional Solicitor General on behalf of the Appellants, to the effect that no relief be granted to R1 due to the election process having reached the penultimate stage, is rejected. Having chosen, with eyes open, to not comply with successive orders of the learned Single Judge and the learned Division Bench, both of which were passed well in time, the Appellants cannot be permitted to plead that interference by the Supreme Court of India at this late juncture should not be forthcoming., The Supreme Court of India would categorically emphasize that no litigant should have even an iota of doubt or an impression, rather a misimpression, that just because of systemic delay or the matter not being taken up by the Courts resulting in efflux of time the cause would be defeated, and the Court would be rendered helpless to ensure justice to the party concerned. It would not be out of place to mention that the Supreme Court of India can even turn the clock back, if the situation warrants such dire measures. The powers of the Supreme Court of India, if need be, to even restore status quo ante are not in the realm of any doubt. The reliefs granted in the lead opinion by Hon. Khehar, J., as the learned Chief Justice then was, concurred with by the other four learned Judges, in Nabam Rebia and Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly, (2016) 8 Supreme Court Cases 1, is enough on this aspect. We know full well that a five‑Judge Bench in Subhash Desai v. Principal Secretary, Governor of Maharashtra, 2023 Supreme Court Online SC 607 has referred Nabam Rebia (supra) to a larger bench. However, the questions referred to the larger bench do not detract from the power to bring back status quo ante. That apart, it is settled that mere reference to a larger bench does not unsettle declared law. In Harbhajan Singh v. State of Punjab, (2009) 13 Supreme Court Cases 608, a two‑Judge Bench said: Even if what is contended by the learned counsel is correct, it is not for us to go into the said question at this stage; herein cross‑examination of the witnesses had taken place. The Court had taken into consideration the materials available to it for the purpose of arriving at a satisfaction that a case for exercise of jurisdiction under Section 319 of the Code was made out. Only because the correctness of a portion of the judgment in Mohd. Shafi [(2007) 14 Supreme Court Cases 544 : (2009) 1 Supreme Court (Criminal) 889 : (2007) 4 Supreme Court Reporter 1023 : (2007) 5 Scale 611] has been doubted by another bench, the same would not mean that we should wait for the decision of the larger bench, particularly when the same instead of assisting the appellants runs counter to their contention., In Ashok Sadarangani v. Union of India, (2012) 11 Supreme Court Cases 321, another two‑Judge Bench indicated: The pendency of a reference to a larger bench does not mean that all other proceedings involving the same issue would remain stayed till a decision was rendered in the reference. The reference made in Gian Singh case [(2010) 15 Supreme Court Cases 118] need not, therefore, detain us. Till such time as the decisions cited at the Bar are not modified or altered in any way, they continue to hold the field., The reference was eventually answered in State of Haryana v. G D Goenka Tourism Corporation Limited, and the reference was eventually answered in Indore Development Authority v. Manoharlal, (2020) 8 Supreme Court Cases 129. Taking all this into consideration, we are of the opinion that it would be appropriate if, in the interim and pending a final decision on making a reference (if at all) to a larger bench, the High Courts be requested not to deal with any cases relating to the interpretation of or concerning Section 24 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. The Secretary General will urgently communicate this order to the Registrar General of every High Court so that our request is complied with. Insofar as the cases pending in the Supreme Court of India are concerned, we request the benches concerned dealing with similar matters to defer the hearing until a decision is rendered one way or the other on the issue whether the matter should be referred to a larger bench or not. Apart from anything else, deferring the consideration would avoid inconvenience to the litigating parties, whether it is the State or individuals., We are seeing before us judgments and orders by High Courts not deciding cases on the ground that the leading judgment of this Court on this subject is either referred to a larger bench or a review petition relating thereto is pending. We have also come across examples of High Courts refusing deference to judgments of this Court on the score that a later coordinate bench has doubted its correctness. In this regard, we lay down the position in law. We make it absolutely clear that the High Courts will proceed to decide matters on the basis of the law as it stands. It is not open, unless specifically directed by this Court, to await an outcome of a reference or a review petition, as the case may be. It is also not open to a High Court to refuse to follow a judgment by stating that it has been doubted by a later coordinate bench. In any case, when faced with conflicting judgments by benches of equal strength of this Court, it is the earlier one which is to be followed by the High Courts, as held by a five‑Judge Bench in National Insurance Company Limited v. Pranay Sethi, (2017) 16 Supreme Court Cases 6805. The High Courts, of course, will do so with careful regard to the facts and circumstances of the case before them., We are conscious that, by way of certain pronouncements, some of which are alluded to in this judgment, the Supreme Court of India extended principles relating to elections to Parliament, State Assemblies and municipalities to other arenas as well. Indicatively, the interpretation of judgments is always to be made with due regard to the facts and circumstances of the peculiar case concerned. We have looked at Articles 243-O, 243ZG and 329 of the Constitution, and conclude that no bar hits the High Court, even on principle. Apart from the judgments expressly considered and dealt with hereinbefore and hereinafter, we have perused, out of our own volition, the decisions, inter alia, of varying bench‑strength of this Court in N.P. Ponnuswami v. Returning Officer, Namakkal Constituency, 1952 SCR 2187; Durga Shankar Mehta v. Thakur Raghuraj Singh, (1955) 1 SCR 267; Hari Vishnu Kamath v. Syed Ahmad Ishaque, (1955) 1 SCR 1104; Narayan Bhaskar Khare (Dr) v. Election Commission of India, 1957 SCR 1081; Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405; Lakshmi Charan Sen v. A. K. M. Hassan Uzzaman, (1985) 4 SCC 689; Indrajit Barua v. Election Commission of India, (1985) 4 SCC 722; Election Commission of India v. Shivaji, (1988) 1 SCC 277; Digvijay Mote v. Union of India, (1993) 4 SCC 1758; Boddula Krishnaiah v. State Election Commissioner, Andhra Pradesh, (1996) 3 SCC 416; Anugrah Narain Singh v. State of Uttar Pradesh, (1996) 6 SCC 303; Election Commission of India v. Ashok Kumar, (2000) 8 SCC 216; Kishansing Tomar v. Municipal Corporation, Ahmedabad, (2006) 8 SCC 352; West Bengal State Election Commission v. Communist Party of India (Marxist), (2018) 18 SCC 141; Dravida Munnetra Kazhagam v. State of Tamil Nadu, (2020) 6 SCC 548; Laxmibai v. Collector, (2020) 12 SCC 186; and State of Goa v. Fouziya Imtiaz Shaikh, (2021) 8 SCC 4019. On scrutiny, in combination with the timelines and facts of the matter herein, we are sure that the High Court did not falter., We would indicate that the restraint, self‑imposed, by the courts as a general principle, laid out in some detail in some of the decisions supra, in election matters to the extent that once a notification is issued and the election process starts, the constitutional courts, under normal circumstances are loath to interfere, is not a contentious issue. But where issues crop up, indicating unjust executive action or an attempt to disturb a level‑playing field between candidates or political parties with no justifiable or intelligible basis, the constitutional courts are required, nay they are duty‑bound, to step in. The reason that the courts have usually maintained a hands‑off approach is with the sole salutary objective of ensuring that the elections, which are a manifestation of the will of the people, are taken to their logical conclusion, without delay or dilution thereof. In the context of providing appropriate succour to the aggrieved litigant at the appropriate time, the learned Single Judge acted rightly., In all fairness, we must note that the learned Additional Solicitor General, during the course of arguments, did not contest the power per se of the High Court to issue the directions it did, except that the same amounted to denying the Appellants their discretion. As stated hereinbefore, we are satisfied that in view of the 1968 Order, the Appellants’ discretion was not unbridled, and rather, it was guided by the 1968 Order., The reasoning of the learned Single Judge, further expounded by the learned Division Bench, leaves no doubt that the relief sought by R1 was required to be granted and, accordingly, the same was granted by the High Court. The stark factor which stares us in the face is that well before and well in time, by way of the writ petition, R1 had approached the Court of first instance (the learned Single Judge), for the reliefs, which have been found due to them ultimately, and upheld by the Appellate Court (the learned Division Bench). It is the Appellants, who by virtue of sheer non‑compliance of the High Court’s orders, can alone be labelled responsible for the present imbroglio. These stark facts cannot be broadly equated with other hypothetical scenarios, wherein the facts may warrant a completely hands‑off approach., This case constrains the Supreme Court of India to take note of the broader aspect of the lurking danger of authorities concerned using their powers relating to elections arbitrarily and thereafter, being complacent, rather over‑confident, that the courts would not interfere. The misconceived notion being that in the ultimate eventuate, after elections are over, when such decisions or actions are challenged, by sheer passage of time, irreversible consequences would have occurred, and no substantive relief could be fashioned is just that misconceived. However, conduct by authorities as exhibited herein may seriously compel the Court to have a comprehensive re‑think, as to whether the self‑imposed restrictions may need a more liberal interpretation, to ensure that justice is not only done but also seen to be done, and done in time to nip in the bud any attempted misadventure. We refrain from further comment on the Appellants, noting the pendency of the contempt proceeding., As made clear by us in the foregoing paragraphs, the situation emanating herein is, in a manner of speaking, unprecedented. With a sense of anguish, it would not be wrong to say that the instant judgment has been invited upon themselves by the Appellants. The orders of the High Court, in our considered opinion, were in aid of the electoral process, and no fault can be found therewith., The learned Additional Solicitor General’s submission that nobody representing R1 had filed his or her nomination form by the last date notified is inapposite, inasmuch as in the position existing, no candidate or representative affiliated with R1 could have filled up the form as the Plough symbol was neither a reserved symbol nor a free symbol, and thus could not have been opted for by any candidate when filing the nomination form. The serious consequence was that R1’s identity as a political party was eclipsed, right before the election to the Ladakh Autonomous Hill Development Council, where it was the incumbent party in power., The Supreme Court of India has previously bestowed consideration on the importance of the symbol in an electoral system, especially one allotted to a political party. Taking note of the three‑Judge Bench decision in Shri Sadiq Ali v. Election Commission of India, New Delhi, (1972) 4 SCC 664, another bench of three learned judges in All Party Hill Leaders Conference, Shillong v. Captain W. A. Sangma, (1977) 4 SCC 161 put it thus: For the purpose of holding elections, allotment of symbol will find a prime place in a country where illiteracy is still very high. It has been found from experience that a symbol as a device for casting votes in favour of a candidate of one’s choice has proved an invaluable aid. Apart from this, just as people develop a sense of honour, glory and patriotic pride for a flag of one’s country, similarly great fervour and emotions are generated for a symbol representing a political party. This is particularly so in a parliamentary democracy which is conducted on party lines. People after a time identify themselves with the symbol and the flag. These are great unifying insignia which cannot all of a sudden be effaced., Placing reliance on Shri Sadiq Ali, a two‑Judge Bench summed up in Edapaddi K. Palaniswami v. T. T. V. Dhinakaran, (2019) 18 SCC 219: It is well known that overwhelming majority of the electorate are illiterate. It was realised that in view of the handicap of illiteracy, it might not be possible for illiterate voters to cast their votes in favour of the candidate of their choice unless there was some pictorial representation on the ballot paper itself whereby such voters might identify the candidate of their choice. Symbols were accordingly brought into use. Symbols or emblems are not a peculiar feature of the election law of India. The object is to ensure that the process of election is as genuine and fair as possible and that no elector should suffer from any handicap in casting his vote in favour of a candidate of his choice. Although the purpose which accounts for the origin of symbols was of a limited character, the symbol of each political party with the passage of time acquired a great value because the bulk of the electorate associated the political party at the time of elections with its symbol. It would, therefore, follow that the Commission has been clothed with plenary powers by the abovementioned Rules in the matter of allotment of symbols. If the Commission is not to be disabled from exercising effectively the plenary powers vested in it in the matter of allotment of symbols and for issuing directions in connection therewith, it is plainly essential that the Commission should have the power to settle a dispute in case a claim for the allotment of the symbol of a political party is made by two rival claimants.
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id_1506
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The paragraph is designed to ensure that because of a dispute having arisen in a political party between two or more groups, the entire scheme of the Symbols Order relating to the allotment of a symbol reserved for the political party is not set at naught. The Commission is an authority created by the Constitution and according to Article 324, the superintendence, direction and control of the electoral rolls and the conduct of elections to Parliament, to the Legislature of every State, and to the offices of President and Vice‑President shall be vested in the Election Commission of India. The fact that the power of resolving a dispute between two rival groups for allotment of a symbol of a political party has been vested in such a high authority would raise a presumption, though rebuttable, and provide a guarantee, though not absolute but to a considerable extent, that the power would not be misused but would be exercised in a fair and reasonable manner., Article 324 provides that superintendence, direction and control of elections shall be vested in the Election Commission of India., This decision in Sadiq Ali v. Election Commission of India, (1972) 4 SCC 664 has been followed in Kanhiya Lal Omar v. R.K. Trivedi, (1985) 4 SCC 628 and in paragraph ten thereof, the Supreme Court of India observed: It is true that till recently the Constitution did not expressly refer to the existence of political parties. But their existence is implicit in the nature of the democratic form of Government which our country has adopted., The use of a symbol, be it a donkey or an elephant, gives rise to a unifying effect amongst the people with a common political and economic programme and ultimately helps in the establishment of a Westminster type of democracy which we have adopted with a Cabinet responsible to the elected representatives of the people who constitute the Lower House. The political parties have to be there if the present system of Government should succeed and the chasm dividing the political parties should be so profound that a change of administration would in fact be a revolution disguised under a constitutional procedure. It is no doubt a paradox that while the country as a whole yields to no other in its corporate sense of unity and continuity, the working parts of its political system are organised on a party basis, in other words, on systematised differences and unresolved conflicts. That is the essence of our system and it facilitates the setting up of a Government by the majority. Although till recently the Constitution had not expressly referred to the existence of political parties, by the amendments made by the Constitution (Fifty‑second Amendment) Act, 1985 there is now a clear recognition of political parties by the Constitution. The Tenth Schedule to the Constitution, added by the above Amending Act, acknowledges the existence of political parties and sets out the circumstances when a member of Parliament or of the State Legislature would be deemed to have defected from his political party and would thereby be disqualified for being a member of the House concerned. Hence it is difficult to say that the reference to recognition, registration, etc., of political parties by the Symbols Order is unauthorised and against the political system adopted by our country., For reasons aforesaid, the entire election process, initiated pursuant to Notification dated 02.08.2023 issued by the Administration of the Union Territory of Ladakh, Election Department, UT Secretariat, Ladakh, under S.O. 53 published vide No. Secy/Election/2023/290‑301 dated 05.08.2023, stands set aside. A fresh Notification shall be issued within seven days from today for elections to constitute the fifth Ladakh Autonomous Hill Development Council, Kargil. R1 is declared entitled to the exclusive allotment of the Plough symbol for candidates proposed to be put up by it., Accordingly, this appeal stands dismissed with costs of Rupees One Lakh to be deposited in the Supreme Court Advocates on Record Welfare Fund. The same shall be done within two weeks, and receipt evincing proof thereof be filed with the Registry of the Supreme Court of India within a week thereafter. IAs 170883/2023, 170885/2023 and 174512/2023 are to be treated as formally allowed., Two further consequences flow: Writ Petition (Civil) No. 1933 of 2023 pending at the Srinagar High Court is also disposed of in the above terms. CCP (S) No. 340 of 2023, statedly listed next on 08.09.2023 before the learned Single Judge, survives. The same shall be proceeded with.
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id_1508
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With age about 28 years, resident of Hudkeshwar, Nagpur (presently Central Prison at Nagpur) is the respondent: State of Maharashtra, through Police Station Officer, Kalamna Police Station, District Nagpur. Aged about 35 years, resident of Goregaon, Santosh Nagar, Mumbai, and Roshan alias Ashish, son of Madhukarrao Ingle, aged about 25 years, resident of Nandanwan, Nagpur (both presently Central Prison at Nagpur) are respondents: State of Maharashtra, through Police Station Officer, Kalamna Police Station, District Nagpur. The appellant Pundlik, son of Domaji Bhoyar, aged about 34 years, resident of Sanjay Gandhi Nagar, Nagpur (presently Central Prison, Nagpur) is respondent: State of Maharashtra, through Police Station Officer, Kalamna Police Station, District Nagpur. The appellant Mohd. Afroz, son of Jiyauddin Pathan, aged about 38 years, resident of behind Kharbi Police Chowki, Nagpur (presently Central Prison at Nagpur) is respondent: State of Maharashtra, through Police Station Officer, Kalamna Police Station, District Nagpur. Shri C. R. Thakur, Advocate for the appellants in Criminal Appeal Numbers 748/18, 63/19 and 409/19; Shri S. R. Shinde, Advocate for the appellant in Criminal Appeal Number 308/19; and Shri S. S. Doifode, Additional Public Prosecutor for the respondent/State. Judgment reserved on 28 June 2022 and pronounced on 20 July 2022., These four appeals arise out of the judgment and order dated 23 October 2018 passed by the learned Additional Sessions Judge, Nagpur in Sessions Trial No. 278 of 2016 and are disposed of by this common judgment. Criminal Appeal Number 748 of 2018 is filed by appellant Ashwin Ashok Donode, original accused No. 4. Criminal Appeal Number 63 of 2019 is filed by appellants Anil Raju Ingle, original accused Nos. 3, and Roshan alias Ashish, son of Madhukarrao Ingle, original accused No. 6. Criminal Appeal Number 308 of 2019 is filed by appellant Pundlik, son of Domaji Bhoyar, original accused No. 5. Criminal Appeal Number 409 of 2019 is filed by appellant Mohd. Afroz, son of Jiyauddin Pathan, original accused No. 1., The learned Additional Sessions Judge convicted all the appellants for offences punishable under Sections 376(D), 366, 506(II) and 170 read with Section 34 of the Indian Penal Code. The sentences imposed are as follows: (a) for the offence under Section 376(D) read with Section 34, rigorous imprisonment for twenty years and a fine of Rs 10,000 each, and in default, rigorous imprisonment for one year; (b) for the offence under Section 366 read with Section 34, rigorous imprisonment for ten years and a fine of Rs 5,000 each, and in default, rigorous imprisonment for six months each; (c) for the offence under Section 506(II) read with Section 34, rigorous imprisonment for five years and a fine of Rs 5,000 each, and in default, rigorous imprisonment for six months each; (d) for the offence under Section 170 read with Section 34, rigorous imprisonment for two years and a fine of Rs 1,000 each, and in default, rigorous imprisonment for three months each., The learned Judge acquitted original accused No. 2, Sudarshan Gajanan Mhaiskar, of all offences. In this judgment, the appellants are referred to by their numbers and nomenclature before the trial court. The prosecutrix is referred to as the victim., The report was lodged by the victim herself at Kalamna Police Station on 2 December 2014. She resides at Mangal Deep Nagar‑2, Besa Road, Manewada, Nagpur with her family and was serving as an Assistant Teacher in St. Paul High School, Hudkeshwar, Nagpur. One Shailesh Sheware (Witness 4) got acquainted with the victim on Facebook; they became friends and used to meet each other. On 1 December 2014 at about 2.00 pm Shailesh called the victim and they decided to meet at Swaminarayan Temple, Wathoda, Nandanwan in the evening. The victim left a message with her neighbour Smt. Swati Bhongade and left her house at 6.15 pm on her Honda Activa moped bearing registration No. MH‑31/ER‑5226. Shailesh met her at Kharbi square and they together went to the temple. After offering prayers they proceeded towards H.B. Town square by highway, took a U‑turn and stopped at a place where they were talking., According to the prosecution, at about 8.00 pm five persons on motorcycles came from behind, proceeded ahead of the victim and Shailesh, then turned back, approached them and claimed to be police officials. When the victim and Shailesh asked to see their identity, the persons became annoyed. One of them admonished the victim in a harsh manner and brandished a knife, ordering her to sit on her Activa between the rider and pillion rider. Shailesh was forced to sit on another motorcycle between its rider and pillion rider. One of the persons rode ahead while the others escorted the victim and Shailesh towards an overbridge. After traveling some distance, the person on the motorcycle near the Activa informed the rider that the victim’s friend had run away., The victim raised a cry for help. The person sitting behind her on the Activa covered her face with a scarf, pressed her hands and gagged her mouth. They carried the victim on a straight road for about fifteen to twenty minutes, then took a right turn onto an unpaved road for about five minutes and stopped. They removed the scarf from her face. The victim, frightened, realized she had been taken away from the highway and pleaded with the accused to be allowed to go home. Two of the accused were slim, aged 20‑25 years, and the remaining three were strongly built, aged 35‑40 years. One person pointed a knife at her and warned her not to create any drama, otherwise they would cut her into pieces and throw her away., The accused overpowered the victim, seized her hands and legs, and removed all her clothes. One person spread a scarf on the ground. The victim pleaded with folded hands to be left alone. All five persons threatened to kill her with a knife and committed forcible sexual intercourse with her one by one. The victim disclosed that six persons were involved; after the five persons carried her to the spot, a sixth person arrived on a motorcycle. In the headlight of that motorcycle she could see the faces of all the persons. Near the spot there were white‑coloured tree guards. Two persons opened the dicky of her Activa, inspected it, and one of them took a scarf from the dicky and placed it on his shoulder., After the assault, the accused asked the victim to wear her clothes, brought her back on the road, and after traveling some distance the victim saw a sign board of Renuka College and realized she was at village Besa. She requested to be left there because a friend lived nearby; the accused left her at that place and departed. The victim returned home at about 9.00 pm, narrated the incident to her father, who took her to Kalamna Police Station. A crime bearing No. 401/2014 was registered against unknown persons. The victim was sent for medical examination at Mayo Hospital, Nagpur, where the Medical Officer collected her clothes and a blood sample., The investigating officer conducted the investigation. The Senior Inspector of Police, Crime Branch, Nagpur informed Kalamna Police Station about the arrest of the accused. The investigating officer obtained custody of the accused and arrested them on 22 December 2014. He drew the spot panchanama, recorded statements of witnesses, discovered five knives, collected blood samples of all the accused, and conducted a Test Identification Parade. The seized mud and samples were forwarded to the chemical analyser. The investigating officer obtained the medical examination report of the victim and the opinion of the Medical Officer. After completing the investigation, he filed a charge‑sheet in the Court of the learned Judicial Magistrate, First Class, Nagpur. Since the offence is exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of the learned Additional Sessions Judge, Nagpur, who framed the charge (Exhibit‑30) against all the accused. They pleaded not guilty, denying the allegations., The prosecution examined 21 witnesses and produced numerous documents to establish the guilt of the accused. The learned Additional Sessions Judge, after considering the evidence and material on record, found five accused guilty of the offences and sentenced them as mentioned above. Aggrieved by this judgment and order, the appellants have filed these appeals before the High Court of Judicature at Bombay., We have heard Shri C. R. Thakur, learned advocate for the appellants in Criminal Appeal Numbers 748/18, 63/19 and 409/19; Shri S. R. Shinde, learned advocate for the appellant in Criminal Appeal Number 308/19; and Shri S. S. Doifode, learned Additional Public Prosecutor for the respondent/State in all the appeals. With their assistance, we have examined the record and proceedings., Shri C. R. Thakur, advocate for the appellants, submitted that the evidence of the victim (Witness 11) and her friend Shailesh (Witness 4) contains omissions and inconsistencies and therefore does not inspire confidence. He argued that the identity of the accused has not been established beyond doubt. He pointed out that the victim and Shailesh stated that there was no electric or natural light at the spot, so they could not see the faces of the accused. He further contended that photographs of the accused shown to the victim and Shailesh during the investigation render the identification parade evidence unreliable. He observed that if forcible sexual intercourse had occurred, there would have been injuries on the victim’s private parts, which were absent. He described Shailesh as a coached witness whose testimony does not corroborate the victim’s version. He also questioned the reliability of the Court of Appeal reports and DNA report, stating that there was no concrete evidence to exclude the possibility of tampering with the blood samples. He concluded that the learned Additional Sessions Judge should have given the benefit of doubt to the accused and acquitted them., Shri S. R. Shinde, advocate for appellant original accused No. 5, Pundlik Bhoyar, adopted the above submissions and further submitted that, based on the victim’s evidence, the trial judge ought to have given benefit of doubt to accused No. 5 and acquitted him. He highlighted that the victim stated that a person with a leg fracture attempted to rape her but was unable to do so because of the injury. He argued that the conviction of accused No. 5, which was based on a positive DNA report from a cervical swab, cannot be sustained in view of the victim’s statement., Shri S. S. Doifode, learned Additional Public Prosecutor, submitted that the victim gave a first‑hand account of the incident, which the trial judge found sufficient to prove the crime. He maintained that the evidence of the victim (Witness 11) and Shailesh (Witness 4) is beyond doubt and was not shaken in cross‑examination. He stated that the victim’s oral testimony on the occurrence of rape is corroborated by her medical examination report, Court of Appeal reports and DNA reports. He further asserted that the Test Identification Parade conducted by the Executive Magistrate proved that the procedure was scrupulously followed and that the victim and Shailesh identified the accused in that parade. In short, he argued that the oral testimony of the victim and the independent witness Shailesh has been corroborated by other cogent evidence., We have carefully scrutinized the evidence on record. The victim, in her evidence before the High Court of Judicature at Bombay, gave a vivid account of the unfortunate incident. At the time of the incident she was a 21‑year‑old unmarried teacher who had become acquainted with Shailesh on Facebook and they frequently met. The accused Mohd. Afroz, Anil Ingle and Pundlik Bhoyar were previously convicted and sentenced in Special MCOC Case No. 3/2005 by the learned Special Judge, Nagpur for offences punishable under Sections 376‑D, 366, 504, 506‑B, 377 and 394 read with Section 34 of the Indian Penal Code. The incident under consideration occurred on 26 November 2014, when the girl was abducted and subjected to forcible sexual intercourse by these accused, who had impersonated forest personnel and threatened her with a knife., The victim stated that on 11 December 2014 she and Shailesh decided to visit Swaminarayan Temple in the evening. At about 5.00 pm she proceeded on her Activa (registration No. MH‑31/ER‑5226). Shailesh met her at Kharbi square and they went to the temple, offered prayers, had tea, and then proceeded along Kalamna Road to H.B. Town square. At Lihigaon they took a U‑turn to return to Nagpur, stopped on the side of the road and were chatting when two motorcycles came from behind, went ahead of them, and then returned. The persons on the motorcycles claimed to be police officers and said they would have to accompany the victim and Shailesh to Pardi Police Station. When the victim asked for identity cards, one of them told her “don’t be oversmart” and brandished a knife. They forced the victim to sit on her Activa between the rider and pillion rider and forced Shailesh to sit on another motorcycle in the same manner. While travelling, the rider of the motorcycle near the Activa informed that the victim’s companion had run away. The victim raised an alarm shouting “save, save”. Her face was then covered with a scarf and a knife was pointed at her waist. She was carried to a spot, threatened with dire consequences, and a sixth person arrived on a motorcycle, allowing her to see the faces of all the accused. The accused removed her clothes forcibly and each of them committed sexual intercourse with her. She pleaded with folded hands to be released, but the accused did not free her before satisfying their lust. She was later dropped near Renuka College in village Besa and later returned home., The victim was subjected to rigorous cross‑examination by the accused. The cross‑examination focused on the lack of sufficient electric or natural light at the spot, which the defence argued would have prevented the victim from seeing the faces of the accused. In our view, this line of attack has not dented the victim’s evidence. She narrated in detail the ordeal she suffered and described the interaction with the accused, indicating that she had an opportunity to see their faces from a close distance. She also stated that there was moonlight and the headlight of the sixth accused’s motorcycle provided illumination., The victim identified each accused in the High Court of Judicature at Bombay and also during the Test Identification Parade conducted by the Executive Magistrate. Her identification in court was consistent with the identification in the parade, and the trial judge gave no weight to the defence’s cross‑examination on this point., It is not the case of the accused that they were falsely implicated. The victim, a young woman, was subjected to a brutal attack that violated her dignity. One of the accused, who had a leg fracture, attempted to commit rape but was unable to do so because of his injury; nevertheless, the DNA report from the victim’s cervical swab was positive, indicating penetrative sexual intercourse. The victim withstood the cross‑examination and her testimony remains truthful and reliable., The evidence of Shailesh (Witness 4) corroborates the victim’s account. He stated that on the date of the incident, at about 7.00‑8.00 pm, he and the victim were proceeding on the Kamptee highway, took a U‑turn from Lihigaon, stopped on the side of the road and were chatting when five persons on two motorcycles approached, claimed to be police officers and forced the victim onto her Activa and him onto another motorcycle. He described being gagged, a knife being pointed at his waist, and his eventual escape after the motorcycle lost balance. He later reported the incident to a pan‑shop keeper, who advised him to go to the police. He then approached two police officials, who wired the information to others, and later assisted in the search for the victim., The court finds Shailesh’s evidence consistent with that of the victim and therefore corroborative. His conduct, as described, shows ordinary prudence in attempting to rescue the victim and cooperate with the police. Had he not made efforts to locate and rescue the victim, his testimony would have been doubtful., It is recorded that Shailesh mentioned that one of the five accused had a leg problem and that he did not know the accused before the incident. He was called to identify the accused in the Test Identification Parade on two occasions but was unable to identify some of the accused at that time.
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It has come on record that on first occasion he identified accused Anil Ingle and Pundlik Bhoyar and on second occasion he identified accused Roshan Ingle. It is, therefore, apparent that on 23 January 2015 Party Witness Shailesh (Party Witness 4) identified accused Anil Ingle, Pundlik Bhoyar and Roshan Ingle. On the date of second Identification Parade, namely 29 January 2015, he identified accused Mohd. Afroz. He could not identify accused Sudarshan Mhaiskar and Ashwin Donode., While appreciating his evidence on the identification of the four accused by Party Witness Shailesh (Party Witness 4), it needs to be borne in mind that he did not witness the entire incident. He was witness to part of the incident. It is further pertinent to note that all of a sudden the victim and Shailesh were made to sit on the motorcycles. Shailesh’s evidence indicates that a knife‑like object was pointed at his chest and his mouth was gagged by the pillion rider. He managed to escape from the clutches of the pillion rider of the motorcycle on which he was made to sit., His evidence before the Court of Law would show that in the Court of Law he identified Pundlik Bhoyar, Sudarshan Mhaiskar and Mohd. Afroz. It is submitted on the basis of this statement of Party Witness 4 that he was not an eye‑witness even to the part of the incident. We have minutely perused the cross‑examination of Party Witness 4. Perusal of his cross‑examination would show that on the point of part of the incident deposed by him, his evidence has not been shaken. The answers given by him in his cross‑examination are consistent and are sufficient to conclude that he is not a got‑up witness., It has further come on record that there are two independent witnesses, one is the pan stall keeper (Party Witness 13) to whom Shailesh had approached for the first time and the other is a police officer (Party Witness 10) to whom he narrated the incident. Failure to identify some of the accused persons may not go against this witness insofar as he had not witnessed the entire incident. Identification of some of the accused by Shailesh is consistent with his evidence on the part of the incident. On a minute scrutiny of the evidence of this witness, we are convinced that the evidence of this witness is consistent with the part of the incident narrated by the victim., His evidence proves beyond doubt that he was present on the spot when the accused came and forcefully made them sit on the motorcycles and carried them to an unknown destination. The other corroborative evidence adduced by the prosecution as discussed above lends assurance to the testimony of Party Witness 4. We, therefore, do not see any reason to discard and disbelieve his evidence., Evidence of the victim (Party Witness 11) has been corroborated on the first part of the incident by Party Witness 4. It is further pertinent to note that the victim in her evidence has narrated a first‑hand account of the entire incident. Even if it is assumed for the sake of argument that there is no corroborative evidence, this Court of Law would not have rejected the evidence of the victim. In this context, we may refer to the decisions of the Hon’ble Apex Court in State of Punjab v. Gurmit Singh and others, AIR 1996 SC 1393 and Ganga Singh v. State of Madhya Pradesh, (2013) 7 SCC 278., In State of Punjab v. Gurmit Singh, it is held that the testimony of a victim in sexual assault cases is vital and unless there are compelling reasons necessitating corroboration, the Court should not find it difficult to act on the victim’s testimony alone to convict an accused where the testimony inspires confidence and is reliable. The Court further held that insisting on corroboration in such offences amounts to adding insult to injury. In Ganga Singh v. State of Madhya Pradesh, it is held that the prosecutrix is a victim and not an accomplice and there is no provision in the Evidence Act requiring corroboration of material particulars as is required for an accomplice. Sole testimony of the victim can be sufficient to prove the guilt of the accused, though the Court may look for other evidence that lends assurance short of corroboration required for an accomplice., In the case at hand, evidence of the victim (Party Witness 11), on minute scrutiny, is found to be credible. Her first‑hand account and the involvement of the accused persons have been proved. The evidence of the victim on the part of the incident has been fully corroborated by the evidence of Party Witness 4. The testimony of Party Witness 4 equally inspires confidence., Before proceeding to the medical evidence, it is appropriate to consider the evidence of Executive Magistrate Shri Ravindra Bhope (Party Witness 15) who conducted the Test Identification Parade. He stated that in the identification parade conducted on 23 January 2015, the victim identified accused Anil Ingle and Pundlik Bhoyar in the first round and accused Roshan Ingle in the second round. He also stated that Party Witness 4 identified accused Anil Ingle and Pundlik Bhoyar in the first round and accused Roshan Ingle in the second round. On 29 January 2015, he conducted another Test Identification Parade in which the victim identified accused Mohd. Afroz and Sudarshan Mhaiskar in the first round and accused Ashwin Donode in the second round. He categorically stated that Party Witness 4 identified only accused Mohd. Afroz and could not identify accused Sudarshan Mhaiskar and Ashwin Donode. The memorandums of the Test Identification Parades are at Exhibits 90 to 93 and 96 to 99. His evidence corroborates the version of the victim and Party Witness 4 on the identification of the accused persons. We do not see any reason to doubt the evidence of Executive Magistrate Bhope, who is an independent witness and not an interested party., The medical examination of the victim (Party Witness 11) is a vital corroborative piece of evidence. The victim was referred to Mayo Hospital, Nagpur. Dr. Rajesh Chintalwar (Party Witness 9) testified that the victim was referred by the CMO Gynecology Department to his department and was brought by Women Police Constable Sheela. He, Dr. Zafar and Dr. Anuja examined the victim in the labour room with her consent. Dr. Chintalwar reported that a greenish‑yellow scarf on the victim was stained with sticky fluid and soil particles, and that a yellow top and blue leggings had white stains. On examination, an abrasion of size 2 × 2 cm, dark red in colour, was found on her back at the level of the first lumbar vertebra, and two linear abrasions parallel to each other, 7 cm long, just above the first injury. Perianal, vaginal, cervical swabs, blood sample and nail clippings were collected. The clothes and all samples were packed, sealed and handed over to Women Police Constable Sheela Bisen (Party Witness 6). The medical examination report is Exhibit 68., The medical examination report at Exhibit 68 indicates that the history of assault narrated by the victim was recorded by Dr. Chintalwar and his associates. The report lends assurance to the evidence of the victim and of Dr. Chintalwar. The Medical Officer gave an opinion that there was evidence of application of force on the victim. The final opinion was reserved subject to the forensic science laboratory (FSL) report. After receipt of the FSL report, the Medical Officer opined that the victim was recently subjected to forceful sexual assault committed by the accused persons. In cross‑examination, the Medical Officer’s evidence was challenged on the ground that in the absence of serious injuries on the private parts, his report supported the prosecution. We find that the Medical Officer’s evidence and the victim’s version cannot be disbelieved. It has come on record that five accused were carrying knives and brandished them in the presence of the victim, with one accused pointing a knife at her body., The first‑hand vivid account of the incident allows visualization of the victim’s precarious position in the custody of the accused. The accused threatened the victim with dire consequences if she did not submit to their lust. Two injuries on her back were noted; the major injuries might not have been caused because the victim was helpless and could not resist. The Medical Officer’s evidence therefore corroborates the victim’s version on this material aspect. An attempt in cross‑examination to indicate that packing and sealing of the samples and articles was not done properly was proved unsuccessful., The next corroborative piece of evidence is the C.A. and DNA reports. In Mukesh and another v. State for NCT of Delhi and others, 2017 All M.R. (Cri) 2448 (SC), the Hon’ble Apex Court held that a DNA report deserves acceptance unless it is absolutely dented and non‑acceptance requires proof of lack of quality control or assurance. If sampling is proper and there is no evidence of tampering, the DNA test report is to be accepted and is scientifically accurate., In this case, the prosecution has adduced more than sufficient evidence to establish that the possibility of tampering of the samples has been completely ruled out. The blood and vaginal samples of the victim were collected by Party Witness 9, who also took custody of the victim’s clothes at the time of the crime. The samples and clothes were sealed by him. Dr. Chintalwar examined the victim and collected the samples on 2 December 2014. Women Police Constable Sheela Bisen testified that Dr. Chintalwar handed over the packed and sealed samples along with the B‑form to the Investigating Officer, who immediately forwarded them to the Regional Forensic Science Laboratory (RFSL), Nagpur, in sealed condition. There is no material on record suggesting any possibility of tampering with the seals on the sample packets., It is necessary to appreciate the evidence of Party Witness 16, Assistant Director of RFSL, Nagpur, who analyzed the samples. She narrated the condition of the samples and the seals on the packets. She conducted analysis of the samples for blood and semen on the victim’s clothes. She found one stain of blood mixed with semen and a few semen stains, all of human origin, and prepared Report Exhibit 109. She also examined and analyzed the blood sample, cervical swab, perianal swab, vaginal swab and nail clippings, referring them for DNA analysis to the DNA Division of RFSL, Nagpur (Report Exhibit 110). She was cross‑examined on behalf of accused No 1; no denial was made to her evidence that she received the samples in sealed condition. We are satisfied that the samples were immediately forwarded to the Chemical Analyzer, Nagpur and that there was no tampering of the seals., It has come on record that on 22 December 2014 the accused persons were arrested. The Investigating Officer, on 23 December 2014, requested DNA kits from RFSL, Nagpur. Naik Police Constable Vijay Khangar (Party Witness 7) was deputed to collect the kits. The Investigating Officer arranged to send the accused to Mayo Hospital with a written request to the Medical Officer to collect their blood samples for DNA analysis. Naik Police Constable Khangar, together with other police staff, escorted six accused to Mayo Hospital where the Medical Officer collected the blood samples, which were handed over to him in sealed condition. The request letter to the Medical Officer is Exhibit 60. The Medical Officer acknowledged receipt of the letter on 24 December 2014 and on the same day carried the DNA samples to RFSL, Nagpur. The forwarding letter is Exhibit 61 and the acknowledgment of receipt by the RFSL Receiving Clerk is Exhibit 62. The accused were also examined medically to determine whether they were capable of performing sexual acts; the reports are on record., Dr. Sandeep Gajbhiye (Party Witness 12) conducted medical examinations of accused Anil Ingle, Roshan (Ashish) Ingle, Pundlik Bhoyar and Mohd. Afroz on 26 December 2014 (Exhibits 80 to 84). He stated that there was nothing to suggest that they were incapable of performing sexual intercourse. The medical examination report of accused Pundlik Bhoyar (Exhibit 83) noted an infected wound over his left foot covered with a white hospital bandage. The accused had narrated a history of orthopedic surgery on both upper limbs and left leg five years earlier, a deformity that was noticed by the victim at the time of the incident. Despite rigorous cross‑examination, Dr. Gajbhiye’s evidence on this aspect was not shaken., Dr. Prasad Saigaonkar (Party Witness 17) examined accused Sudarshan Mhaiskar, collected samples and reported that there was nothing to suggest he was incapable of performing sexual intercourse (Exhibit 113). Dr. Pawan Raut (Party Witness 20) examined accused Ashwin Donode on 24 December 2014, collected his samples and similarly opined that there was nothing to suggest incapacity (Exhibit 165). In our opinion, the evidence of Medical Officers 12, 17 and 20 corroborates the prosecution’s case on material aspects., The clothes of the accused seized during investigation, together with their blood and other samples, were forwarded to RFSL, Nagpur. An acknowledgment of this transfer is Exhibit 145. The samples were carried to the Chemical Analyzer, Nagpur by Naik Police Constable Shekhar Kabhe. The Investigating Officer has deposed about this in detail., It is necessary to consider the evidence of Party Witness 21, Dr. Neha Bhandarkar, who collected the blood samples of all the accused for DNA analysis. After establishing the identity of the accused, she obtained their consent and collected the blood samples using needle and syringe, taking appropriate precautions while packing and sealing the samples along with the identification forms (Exhibits 169 to 174). Her evidence is corroborated by contemporaneous documentary evidence and proves beyond doubt that there was no possibility of manipulation or tampering with the samples of the accused., Neha Bhale (Party Witness 18) was attached to RFSL, Nagpur as an Assistant Chemical Analyzer and analyzed the DNA samples received in the DNA Division. DNA, being the genetic blueprint present in every cell, is unique to an individual except for identical twins, making DNA profiling an extremely accurate method for comparing a suspect’s DNA with crime‑scene specimens. She received one blood‑mixed semen stain cutting from the scarf, simple semen stains from the scarf, blood and medical samples of the victim, and blood samples of six accused persons in Crime No. 401/2014 of Kalamna Police Station. She extracted DNA from the samples and subjected it to Polymerase Chain Reaction (PCR) technique, obtaining DNA profiles., She reported that the blood‑mixed semen stain on the scarf matched the DNA profile of the victim and of accused Roshan (Ashish) Madhukar Ingle. The semen stains numbered 1, 3, 4, 5, 7 and 8 on the scarf were identical, of male origin, and matched the DNA profile of accused Roshan (Ashish) Ingle. The semen stain number 2 matched the DNA profiles of accused Anil Raju Ingle, Ashwin Ashok Donode and the victim. The semen stains numbers 6 and 9 matched the DNA profiles of accused Mohd. Afroz Jiyauddin Pathan, Roshan (Ashish) Madhukar Ingle and the victim. The cervical swab (Exhibit 2) matched the DNA of Mohd. Afroz Jiyauddin Pathan, Anil Raju Ingle, Ashwin Ashok Donode, Pundlik Domaji Bhoyar, Roshan (Ashish) Madhukar Ingle and the victim. The perianal swab (Exhibit 3) was of female origin and matched the victim’s blood. She prepared the report on 31 January 2015 (Exhibit 116) and recorded her interpretation on page 4 of the report., Before considering the cross‑examination of Party Witness 18, it is important to note that she stated all samples received from the Biological Section of RFSL, Nagpur or from the Investigating Officer were in sealed condition. The DNA report (Exhibit 117) describes the sample parcels, noting that blood samples of six accused were received in six plastic containers with intact seals. The oral evidence of Party Witness 18, together with the DNA report and the evidence of Party Witness 16, shows that the samples were sealed, ruling out any possibility of tampering., The line of cross‑examination of Party Witness 18 suggested a scope for tampering, but we are not prepared to accept this view in light of the concrete and reliable evidence discussed above. A perusal of the cross‑examination of Party Witness 16 and Party Witness 18 indicates no basis to infer tampering. It was suggested that obtaining correct results from analysis of multiple DNA samples would be difficult; however, Party Witness 18 categorically stated that accurate results were obtained and that the components of semen used for DNA profiling were subjected to PCR. She affirmed that the analysis yielded a 100 % accurate result. Based on her answers, her opinion is fortified and we see no reason to discard her evidence., The chain of custody from collection of the samples to their analysis has been established through oral and documentary evidence, and the possibility of tampering has been completely ruled out. Accordingly, the law laid down by the Hon’ble Apex Court in Mukesh and another v. State for NCT of Delhi and others applies squarely to this case. In our opinion, the evidence of collection, preservation, analysis and the final result fully corroborates the evidence of the victim and the eye‑witness Shailesh (Party Witness 4). On the basis of the evidence discussed above, the involvement of the five accused persons who have been convicted is established beyond reasonable doubt., It is necessary to consider the evidence of Party Witness 1, Amar Wasnik, who is the panch witness to the spot panchanama. The Investigating Officer deposed that PI Ramteke visited the spot. Initially the spot could not be located because the victim was mentally disturbed. Amar stated that on 2 December 2014, though the victim accompanied the police and two panchas, the spot could not be located. The panchanama is Exhibit 33. The victim later pointed out the spot on 15 December 2014; a white painted wall near the spot was noted. The panchanama is Exhibit 123. Even if the evidence of the Investigating Officer and the panch witness on the spot panchanama were unacceptable, it would not materially affect the prosecution’s case. No article was seized from the spot, which was an isolated place. The panchanama shows that the spot identified by the victim was at some distance from the highway., The prosecution relied upon the evidence of panch witnesses Amar Wasnik (Party Witness 1) and Ashwan Gaikwad (Shahu) (Party Witness 2) to prove the discovery of the knives used by the accused at the time of the crime. Amar supported the prosecution’s case, whereas Ashwan turned hostile. The Investigating Officer deposed about confessional statements made by the accused and the discovery of the knives at their instance, pursuant to those statements. Even if this evidence were excluded, it would not make the prosecution’s case doubtful. It is undisputed that no injury was caused by the knives to the victim or to Shailesh. The prosecution alleges that one or two accused pointed the knife at the victim’s chest and waist and at Shailesh. The use of knives to threaten and terrorize has been proved by the victim’s and Party Witness 4’s evidence. Recovery of the knives would have been important only if they had caused injury.
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Satyaveer Bandiwar (Witness 19) is the Investigating Officer. In his evidence he has placed on record all the facts related to the investigation. On the basis of his evidence, arrest of the accused in this case has been proved. He has categorically deposed about forwarding of the samples seized in the crime to the Chemical Analyzer. His evidence shows that without any delay he forwarded the samples to the Chemical Analyzer. Perusal of his evidence shows that he conducted a fair investigation. No material has been brought on record in his cross‑examination to indicate that he attempted to falsely implicate innocent persons. He conducted the investigation in a serious crime solely with an object to take the same to its logical conclusion., The prosecution has also relied upon the evidence of Prashant Misal (Witness 10), Chandrakant Rajutkar (Witness 13) and Nandlal Dhomne (Witness 14). It is the case of the prosecution that Shailesh (Witness 4) after escaping from the clutches of the accused first went to Chandrakant Rajutkar (Witness 13), who is the pan shop keeper near Kapsi gate. Chandrakant (Witness 13) took Shailesh (Witness 4) to Prashant Misal (Witness 10), who at the relevant time along with Head Constable Jagdish, Badge No. 978, was on patrolling duty in Indora area., Chandrakant (Witness 13) stated that at about 9.00 to 9.30 p.m. on 2 December 2014 he was at his shop when a boy came to his shop and asked him for help. He said he took the boy to Traffic Police officials who were at some distance from his shop. Naik Police Constable Prashant Misal (Witness 10) supported the evidence of Chandrakant (Witness 13) and Shailesh (Witness 4) on this point. He stated that on 2 December 2014 he, along with Head Constable Jagdish, was doing patrolling duty in Indora area. At that time a pan shop keeper brought a person named Shailesh to them. Shailesh informed them about the kidnapping of the victim by unknown persons. He immediately conveyed the information of the incident by walkie‑talkie to the control room. They took search of the girl, however they could not trace her or the kidnappers. He further stated that on receiving a message from the Control Room, Constable Charlie No. 5, Shri Dhomne, came to make an enquiry about the incident., He stated that Shailesh (Witness 4) went to Kalamna police station with Nandlal Dhomne (Witness 14). In order to prove that the information of the incident was conveyed to the control room, the prosecution has placed reliance on documentary evidence Exhibit‑151, a certified copy of the log book showing entry about the information of the incident received on wireless. Nandlal Dhomne (Witness 14), a Naib Police Constable, deposed that on the given date he was in charge of Charlie No. 5 on patrolling duty. At about 20.00 hours he received a wireless message about the kidnapping of a girl. He thereafter, along with his colleague Vijay Pendam, went to Kapsi bridge and met police officials namely Jambhulkar and Misal. The person with them was Shailesh (Witness 4). He stated that Shailesh gave a brief account of the incident. They together searched for the girl but could not trace her or the kidnappers. Therefore, together with the boy he returned to Kalamna police station., The evidence of Prashant Misal (Witness 10), Chandrakant Rajutkar (Witness 13) and Nandlal Dhomne (Witness 14) is consistent on the point that Shailesh (Witness 4) first met Chandrakant (Witness 13), a pan shop keeper, and he brought Shailesh to Naik Police Constable Prashant (Witness 10). It has also been proved that Naik Police Constable Prashant (Witness 10) conveyed information of the incident to the control room. On receipt of the information, Nandlal (Witness 14) went to Kapsi gate to verify the information. The testimony of Shailesh (Witness 4) on this point has been fully corroborated by these three independent witnesses. In addition, contemporaneous documentary evidence corroborates communication of the incident to the control room by walkie‑talkie., On consideration of the evidence, we are convinced that on the basis of the same, the guilt of five accused has been proved. On the basis of available evidence, no case has been made out to give benefit of doubt to Pundlik Bhoyar, who is the appellant in Criminal Appeal No. 308/2019. It has come on record in the evidence of the victim that a man with a fractured leg could not establish sexual intercourse with her. Pundlik Bhoyar is the said person. He therefore asked the victim to turn and even thereafter could not perform intercourse with her. The evidence on record clearly indicates that he at least attempted to commit rape on the victim. The fact that his semen was detected in the cervix is also a pointer towards some kind of penetrative act on his part, within the contemplation of law, though the penetrative act may not have been sensed by the victim due to her fright. Besides, he was part of the gang which committed gang rape on the victim. On the basis of the evidence, particularly the DNA report, complicity of accused Pundlik Bhoyar in the commission of the crime stands proved. At the cost of repetition, we say that detection of his semen in the cervix of the victim indicates that at the time of intercourse there was ejaculation by Pundlik and therefore his semen was detected in the cervical swab sample of the victim, which perhaps may not have been felt by the victim, she being terrified. In our view, therefore, there is no doubt about the complicity of this accused in the crime., On re‑appreciation of the entire evidence led by the prosecution, we are satisfied that the prosecution has proved its case against the accused persons beyond reasonable doubt. In view of the above, we conclude that there is no substance in the appeals. The appeals are therefore dismissed. The conviction and sentence awarded by the learned Additional Sessions Judge, Nagpur dated 23 October 2018 in Sessions Trial No. 278 of 2016 are hereby maintained.
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Shri Mudassir son of Yousuf Khan versus Shirin wife of Mudassir Khan and others. The matter was heard before the Family Court, Bhandara, Coram: Justice Bharati Dangre, Date: 09 February 2023. Mr. R. R. Vyas, Advocate for the applicant, and Mr. I. A. Fidvi, Advocate for the non‑applicants appeared., The order passed by the Family Court, Bhandara on an application filed by the wife and the children under Section 125 of the Criminal Procedure Code on 1 August 2022 is assailed in the present revision application. The non‑applicant wife, together with two minor children, approached the Family Court seeking maintenance of Rupees 39,000 per month for herself and her children. The claim was based on the contention that she is unable to maintain herself and her children, requiring Rupees 7,000 per month for the children and Rupees 20,000 per month for the wife. The applicant is a businessman engaged in the auto‑deal business of selling and purchasing four‑wheelers and two‑wheelers and earns an income of Rupees 1,00,000 per month., After considering the evidence, the learned Judge of the Family Court awarded maintenance of Rupees 8,000 per month to the wife and Rupees 5,000 per month to each of the two minor children. The husband was directed to clear the arrears within six months, continue to pay the recurring maintenance, and bear the entire educational expenses of the children., The learned counsel for the applicant stated that he does not wish to contest the order of maintenance and educational expenses imposed on him for the two minor children. He submitted that the award of maintenance of Rupees 8,000 to the wife is without justification and that he had made every attempt to cohabit with his wife, referring to paragraph 15 of the impugned order which records the cross‑examination of the wife where she admitted that attempts were made by the husband to bring her back but there was no response., The applicant’s counsel therefore invoked sub‑section (4) of Section 125, arguing that the wife has refused to live with him without sufficient reason and therefore he is not liable to pay any maintenance. The Court is unable to accept this submission after hearing counsel for the non‑applicant wife and perusing the application filed before the Family Court, Bhandara. The application details several instances of mental and physical torture suffered by the wife during cohabitation, leading her to seek shelter with her parents. The Court notes that Section 125(4) of the Criminal Procedure Code disallows a claim if the claimant is living in adultery, refuses to live with her husband without sufficient reason, or if they are living separately by mutual consent. None of these conditions are established; the husband’s statement that he is always ready to cohabit does not absolve him of liability., The Court observes that the wife is unable to maintain herself and has no independent earnings. References to the shop owned by the wife’s father were turned down as irrelevant. The husband’s earnings have been recorded, and he has borrowed a sum of Rupees 15,00,000 for his business. Even if he is in a financially distressed condition, he cannot avoid maintaining his wife and children. Since the husband has not disputed his liability for maintenance and educational expenses, it is a moral and legal responsibility to support a wife who cannot maintain herself. Accordingly, there is no legal lacuna in the judgment of the Family Court directing the husband to pay maintenance of Rupees 8,000 per month to his wife., The revision application is dismissed, upholding the order dated 1 August 2022. The Family Court, Bhandara had directed the husband to clear arrears due to the non‑applicants on or before 5 February 2023, but the order has not been complied with. The husband is directed to obey the order dated 5 February 2023 and clear all arrears by 31 March 2023., It is made clear that no application for extension of time will be entertained. (Justice Bharati Dangre).
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Shri Ashish son of Anilkumar Mule, aged about 35 years, occupation Private Service, residing at care of Pradip Raoji Musadwale, behind Reliance Petrol Pump, Bhadech Layout, Buldhana, State of Maharashtra, through Police Station Officer of Gadge Nagar Police Station, Amravati, Tehsil and District Amravati., Dr. Manisha wife of Ashish Mule, aged about 30 years, occupation Service, residing at care of Ashok Sampatrao Kurhade, Kalkunj, 117 Abhiyanata Colony, near Kidzi School, Vidyut Nagar., Shri Pavan Dahat, Advocate, head of Shri A.B. Moon, Advocate for the applicant. Shri Ghodeswar, Additional Public Prosecutor for the State. Shri V.N. Mate, Advocate for non‑applicant No.2., The matter is taken up for final disposal by the consent of 2023:BHC‑NAG:15914‑DB. Learned counsel appearing for the parties., This is an application seeking to quash the First Information Report in Crime No. 431 of 2023 registered with the Gadge Nagar Police Station, Amravati City for the offence punishable under Section 363 of the Indian Penal Code., At the instance of the report lodged by the biological mother, a crime has been registered against the biological father. The informant mother has alleged that on 29‑03‑2023 the applicant father forcibly took away their minor son aged 3 years, thereby committing an offence of kidnapping. A short issue for consideration is whether a father can be booked for the offence of kidnapping for taking away his own minor child from the custody of the mother., Learned counsel for the applicant submits that, by no stretch of imagination, the act of the applicant attracts the offence of kidnapping as defined under Section 361 of the IPC, punishable under Section 363 of the IPC. It is his contention that the applicant, being a father and natural guardian of a minor, cannot be booked for the aforesaid offence., There is no dispute that the parties are governed under Hindu law. Moreover, it is not in dispute that the applicant is the biological father whilst the informant is the biological mother of a minor son aged 3 years., Section 361 of the IPC, which is relevant for our purpose, reads as follows: 'Kidnapping from lawful guardianship—Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.' Explanation—The words 'lawful guardian' in this section include any person lawfully entrusted with the care or custody of such minor or other person., The explanation expands the words 'lawful guardian' to include any person lawfully entrusted with the care or custody of the minor or other person. However, to complete the offence the person who takes away the minor must not fall within the conspectus of the term 'lawful guardian'., Contextually, it necessitates us to refer to Section 6 of the Hindu Minority and Guardianship Act, 1956, which reads: 'Natural guardians of a Hindu minor—The natural guardians of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are (a) in the case of a boy or an unmarried girl, the father, and after him, the mother; provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother.', Though the parties are governed under Hindu law, we have also taken into account the term 'guardian' as defined under Section 4(2) of the Guardians and Wards Act, 1890, which reads: 'Guardian means a person having the care of the person of a minor or of his property, or of both his person and property.', Bare perusal of Section 6 of the Hindu Minority and Guardianship Act, 1956 conveys that for a Hindu minor, the father is a natural guardian, and after him, the mother. Sub‑clause (a) only speaks about the custody of a minor up to the age of five years. Therefore, it is abundantly clear that the applicant father is a natural guardian of a minor in the absence of an order otherwise passed by a court of competent jurisdiction. Section 361 of the IPC states about the lawful guardian as explained in the section itself. If the minor of the age specified in the section is taken out of the custody of the lawful guardian of such a minor, then the offence would be complete. It is not a case that the mother was lawfully entrusted with the care or custody of the minor by the order of a competent court., In the case at hand, the applicant is a natural guardian. Moreover, he is a lawful guardian too along with the mother; therefore, in the absence of any prohibition by the order of a competent court, the applicant father cannot be booked for taking away his own minor child from the custody of his mother. The expression 'guardian' under Section 4(2) of the Guardians and Wards Act encompasses any person who is having the care of the person of a minor or of his property. Consequently, in our view, in the absence of legal prohibition, a father cannot be booked for the offence of kidnapping of his own child., The father of a child will not come within the scope of Section 361 of the IPC, even if he takes away the child from the keeping of the mother, who may be a lawful guardian as against any other except the father or any other person who has been appointed as a legal guardian by virtue of an order of the competent court. So long there is no divestment of the rights of guardianship of a father, he cannot be guilty of an offence under Section 361 of the IPC., We are fortified in our view by the decision of the Orissa High Court in Shri Ashok Kumar Seth vs. State of Orissa (2002 SCC OnLine Ori 138), particularly paragraph 8, which states: 'It is thus clearly readable from the position of law as noted and discussed above that unless there is legal prohibition by order of a court of competent jurisdiction, the father cannot be booked for taking away his minor child from the custody of his wife because he is the natural guardian and therefore, the offence under Section 363 IPC cannot be attracted against him for taking the child from the custody of the mother.', The Orissa High Court equally held that the father cannot be booked for taking away his minor child from the custody of his wife because he is the natural guardian, and therefore, the offence punishable under Section 363 of the IPC cannot be attracted against him., The Kerala High Court in Ismail Aboobaker and others vs. State of Kerala, after considering the similar issue pertaining to parties governed under Muslim law and after referring to the relevant provisions about guardianship and custody of a minor, expressed in paragraph 4: 'It may be noted that the section speaks of lawful guardianship and taking of a minor out of the keeping of the lawful guardian. The mother has only the right to the custody of the minor until a particular age. That will not make the father criminally liable if he takes the child from the custody of the mother, the reason being that when the father takes the child from the custody of the mother, he is only taking the child to the custody of the lawful guardian. The father, according to the Privy Council, is the natural and legal guardian of the minor. A legal guardian is certainly a lawful guardian, and if he takes a minor child from the custody of the mother who is certainly not the legal or natural guardian, though entitled to the custody of the child until it reaches a particular age, can he be said to commit the offence of kidnapping? I think not. When a father takes his minor child from the custody of the mother he is not taking the child out of the keeping of the lawful guardian. The right of the mother to the custody of the minor child is something different from the right of the lawful guardian. The right of the mother to the custody of the child is not an absolute right; it is subject to the superior right of the lawful guardian. I do not think that in taking the minor child from the custody of the plaintiff any offence has been committed by the accused.', The similar view has been expressed by the Karnataka High Court in Capt. Vipin Menon vs. State of Karnataka (I.L.R. 1992 KAR 2622), the Punjab and Haryana High Court in Court of its own Motion vs. Ram Lubhaya and others (1985 Cri. LJ 896), and the Allahabad High Court in Khyali Ram and others vs. State of U.P. and others. Recently, the Gujarat High Court, relying on the Karnataka High Court decision, took a similar view in Maunish Dinkar Shaw and others vs. State of Gujarat and others (2023 SCC OnLine Guj 743), which was affirmed by the Supreme Court in Chandrakala Mnon (Mrs) and anr. vs. Vipin Menon (CAPT) and anr. (1993)., The effect of a natural father taking away the child from the custody of the mother in real sense amounts to taking a child from the lawful guardianship of the mother to the lawful guardianship of the father. The natural father of the minor child is also a lawful guardian along with the mother, and therefore, the father of the minor cannot be said to have committed the offence under Section 361 of the IPC so as to be made punishable under Section 363 of the Code of Criminal Procedure., Under such circumstances, on acceptance of the prosecution case in its totality, a prima facie case is not made out for the offence punishable under Section 363 IPC by satisfying the ingredients of the offence of kidnapping. Continuation of such prosecution amounts to abuse of the process of the High Court of Maharashtra, hence, the application is allowed. We hereby quash and set aside the First Information Report in Crime No. 431 of 2023 registered with the Gadge Nagar Police Station, Amravati City for the offence punishable under Section 363 of the Indian Penal Code., The application stands disposed of accordingly. No costs.
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(arising out of Special Leave Petition (Criminal) No. 5973/2014) (arising out of Special Leave Petition (Criminal) No. 5976/2014) Delay is condoned in view of the reasons expressed in the order disposing of the appeals. Leave granted., The State had registered Crime No. 128/2011 of III Town O.S. Visakhapatnam City in respect of a land issue alleging against the private respondents that they had submitted fake and fabricated house tax book and tax receipts to the Urban Land Ceiling Department to grab valuable Government land., Suffice for us to record that there are civil disputes pending between the private respondents and the appellants before us., The private respondents filed a petition before the High Court of Andhra Pradesh under Section 482 of the Code of Criminal Procedure seeking quashing of the FIR itself., This resulted in the impugned order dated 09.11.2011, an unusual one if we may say so., The appellants before us have sought to assail this order after a considerable period of time with a long delay, contending that the order is being misused in the inter se civil proceedings., We may note that the State chose not to file any appeal against the quashing order., On a perusal of the order we find that the submissions of the counsel for the appellants are recorded and thereafter pleadings have been extracted., The reasoning is contained in only the last paragraph which reasons as under: As rightly contended by the learned counsel for the petitioners, a perusal of Paragraph 10 of the affidavit clearly indicates that there is no revenue loss to the Government, as the highest slab rate was collected by the Government., Even assuming for a moment that the petitioners produced fake and fabricated documents, that has not caused any wrongful loss to the Government., Hence, the Supreme Court of India is of the view that a registration of crime and conducting investigation are abuse of process of law and, hence, the proceedings in the crime are liable to be quashed., We find the aforesaid reasoning totally unsustainable., The effect of this reasoning is that fabrication of documents is permissible if it does not cause loss to the revenue., We have thus no hesitation in coming to the conclusion that the impugned order must go and is consequently set aside., The question now is what should be the consequence thereof., We may notice that the FIR was registered on 06.03.2011., More than a decade has passed., The State in its wisdom has chosen to accept the order though in the counter affidavit they now seek to support the FIR., In our view, obviously the State seems not to be perturbed with the order., The appellants are perturbed by the order because it was utilized in the civil proceedings to use it as some kind of clean chit to the private respondents., The latter aspect cannot be permissible and for that reason also we are required to hold that the impugned order is not sustainable., We are thus of the view that no purpose will be served in remitting the matter back to the High Court or for restarting the investigation in view of the passage of time., Suffice to say that in view of the order being quashed, the private respondents cannot take advantage of the same as a clean chit to them., The civil Court will take its own view on the basis of the evidence before it regarding the inter se disputes between the private parties., Our only regret is that this issue is pending for almost eight years even before the Supreme Court of India., We accordingly allow the appeals with the consequences set out in our order leaving the parties to bear their own costs., ITEM NO.2 Court 6 (Video Conferencing) SECTION II Criminal Appeal No(s). 160/2022 Date: 01-02-2022 These matters were called on for hearing today., For Appellant(s): Mr. Sidharth Luthra, Senior Advocate; Mr. S Udaya Kumar Sagar, Advocate; Ms. Bina Madhavan, Advocate; Mr. Balaji Varma, Advocate; Ms. Akansha Mehra, Advocate; Mr. Rao Vishwaja, Advocate; Mr. Anmol Kheta, Advocate; Mr. Lakshay Mehta, Advocate; Ms. Praseena Elizabeth Joseph, Advocate; AOR Ms. Rao Vishwaja, Advocate. For Respondent(s): Mr. Mahfooz Ahsan Nazki, AOR; Mr. Polanki Gowtham, Advocate; Mr. Shaik Mohamad Haneef, Advocate; Mr. T. Vijaya Bhaskar Reddy, Advocate; Mr. K.V. Girish Chowdary, Advocate; Ms. Rajeshwari Mukherjee, Advocate; Mr. Ananga Bhattacharyya, AOR., UPON hearing the counsel the Supreme Court of India made the following: Delay is condoned in view of the reasons expressed in the order disposing of the appeals. Leave granted., The appeals are allowed with the consequences set out in our order leaving the parties to bear their own costs. Pending applications stand disposed of., [Signed order is placed on the file]
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First Appeal (Miscellaneous) No. 75 of 2016 Reserved on 30 March 2022 Pronounced on 12 May 2022 Pritam Lal Sahu, son of Shri Ramkumar Sahu, aged about 38 years, caste Teli, resident of Bazarpara, Jairamnagar, Police Station Masturi, Post Jairamnagar, Tahsil Masturi, Civil and Revenue District Bilaspur, Chhattisgarh (Appellant) versus Smt. Kalpana Sahu, wife of Pritam Lal Sahu, aged about 33 years, caste Teli, present address Ramesh Gali, Sitamadhi, Korba, Tahsil and District Korba, Chhattisgarh (Respondent). For the Appellant: Shri Dharmesh Shrivastava, Advocate. For the Respondent: None. Coram: Honourable Justice Goutam Bhaduri and Honourable Justice Sanjay S. Agrawal, Judges., The following judgment of the Chhattisgarh High Court is delivered by Justice Sanjay S. Agrawal, Judge., This appeal has been preferred by the applicant husband being aggrieved by the judgment and decree dated 23 February 2016 passed by the learned Family Court, Korba in Civil Suit No. 60A/2010, whereby the application filed by him seeking dissolution of marriage was dismissed. The parties to this appeal shall be referred to hereinafter as per their description before the Chhattisgarh High Court., The applicant husband instituted a suit claiming decree for dissolution of marriage on the grounds enumerated under Section 13 (1) (i) and (ia) of the Hindu Marriage Act, 1955. He pleaded that his marriage with the non‑applicant wife was solemnised on 1 May 1996 in accordance with Hindu rites and rituals and immediately after the marriage they started living at his village Jairamnagar, District Bilaspur and two children were born. According to the applicant, his wife frequently went to her parental house at Korba and quarreled with him whenever he asked for the reason of her repeated visits. It is further pleaded that she lodged a false report on 7 September 2008 against him and his parents at Police Station Masturi, District Bilaspur, based upon which an offence punishable under Section 498‑A, Section 323 read with Section 34 of the Indian Penal Code was registered in connection with Crime No. 290/2008. He also initiated a proceeding for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955, which was registered as Civil Suit No. 26‑A/2009 and came to an end on 15 September 2009 based upon compromise, and thereafter he and his parents were acquitted of the charge under Section 498‑A of the Indian Penal Code vide order dated 30 October 2009 passed by the Judicial Magistrate First Class, Bilaspur in Criminal Case No. 850/2008., The applicant husband further contended that his wife was leading an adulterous life as it was revealed based upon the preliminary examination conducted on her at a hospital on 9 October 2009 that she was pregnant, though there was no cohabitation during the said period. He pleaded that his wife had deserted him and started living separately since 2 December 2009, therefore he is entitled to a decree for dissolution of marriage under Sections 31 (1) (i) and (ia) of the Hindu Marriage Act, 1955., The non‑applicant wife contested the claim, pleading that after the solemnisation of marriage her husband and in‑laws demanded a motorcycle and colour television and, owing to which, she was subjected to cruelty when the alleged demand was not fulfilled, and therefore she was constrained to lodge the alleged report on 7 September 2008. She further contended that when the proceeding for restitution of conjugal rights came to an end based upon compromise on 15 September 2009, she was under immense pressure from her husband to settle the matter amicably in relation to the alleged crime and therefore she did not state anything adversely against them, resulting in their acquittal vide judgment dated 30 October 2009. While denying the allegation of her living an adulterous life, she stated that during the pendency of the proceeding initiated by her husband under Section 9 of the Hindu Marriage Act, 1955, he used to visit her house at Korba and stay there for two to three days and during that period she did not resist having physical relation with him, which led to her pregnancy., The Family Court held that although the non‑applicant wife was found to be pregnant, it could not be said that it was on account of an illicit relation with someone else because during the pendency of the proceeding initiated by the applicant husband under Section 9 of the Hindu Marriage Act, 1955, the applicant husband used to stay with her before its settlement, and the applicant husband had failed to examine the DNA test of his wife to establish the alleged fact. The Court further held that since there was a serious dispute between the parties at the relevant time owing to lodging of reports against each other, it could not be said that the non‑applicant wife left for her matrimonial home on 2 December 2009 for committing suicide, as alleged by her husband, or caused mental cruelty upon him. Consequently, the Family Court dismissed the applicant’s claim seeking a decree for dissolution of marriage on the ground of adultery as well as cruelty. This judgment and decree have been impugned by way of this appeal., Learned counsel appearing for the applicant husband submitted that the finding of the Court below holding that his wife is not leading an adulterous life is apparently contrary to the materials available on record. He contended that both were living separately owing to the report lodged by the non‑applicant wife on 7 September 2008 and started living together only from 15 September 2009 when the suit Civil Suit No. 26‑A/2009 came to an end on compromise, but a preliminary examination conducted on 9 October 2009 revealed that she was pregnant with a pregnancy of 40 days. He further contended that since the applicant husband was bedridden owing to a fracture in his left leg from 19 August 2009 up to 13 September 2009, the Court below ought to have held that the alleged pregnancy of his wife was caused by someone else and, under such circumstances, ought to have held that she was leading an adulterous life. He also argued that the false report in relation to the alleged demand of dowry was lodged by the wife, therefore the Court below ought to have granted a decree for divorce on the ground of cruelty as well., No one appeared on behalf of the non‑applicant/respondent despite service of notice of this appeal., The Court has heard learned counsel appearing for the applicant and has perused the entire record of the Court below., From perusal of the record, it appears that the marriage between the parties was solemnised on 1 May 1996 and a report was lodged by the non‑applicant wife on 7 September 2008, based upon which a criminal case was registered against her husband and in‑laws with regard to the offence punishable under Sections 498‑A read with Section 323/34 of the Indian Penal Code in connection with Crime No. 290/2008 and since then both husband and wife were living separately. A proceeding initiated by the applicant husband seeking restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955 came to an end on compromise vide order dated 15 September 2009 passed by the Family Court, Korba in Civil Suit No. 26‑A/2009 and immediately thereafter the criminal case Criminal Case No. 850/2008 was decided vide judgment dated 30 October 2009 whereby the applicant and his parents were acquitted of the charge under Section 498‑A of the Indian Penal Code owing to the compromise arrived at between the parties as the non‑applicant wife, based upon the said compromise, did not support the allegations levelled against them., Before the judgment dated 30 October 2009, the non‑applicant wife, who started living with her husband from 15 September 2009 upon the disposal of the proceeding of conjugal rights, underwent a sterilisation operation on 9 October 2009 wherein she was found to be pregnant with a pregnancy of 40 days, though they lived together for only a period of 24 days. The applicant’s left leg was fractured and he was under the treatment of Dr. R. S. Meravi from 19 August 2009 up to 13 September 2009. In such circumstances, there was no cohabitation between the parties, yet the non‑applicant wife was found to be pregnant as on 9 October 2009 carrying a pregnancy of 40 days. It is apparent that after the marriage she had sexual intercourse with someone other than her husband, else she could not have carried such a pregnancy. It is true that the applicant has neither opted for a DNA test nor raised any objection in a proceeding initiated by his wife for grant of maintenance that she is leading an adulterous life. However, merely on this ground, the material fact cannot be overlooked and it cannot be held that she was not leading an adulterous life, as held by the Court below. It is a settled principle of law that in a case based on non‑access or period of gestation, the Court cannot compel any party to submit a blood test., It is to be noted that the Supreme Court in Dr. N. G. Dastane versus Mrs. S. Dastane reported in (1975) 2 Supreme Court Cases 326 observed that as the proceedings under the Hindu Marriage Act, 1955 are of civil nature, the test of criminal proceedings need not be applied, and therefore it is not necessary to prove the allegations beyond all reasonable doubt. Proof beyond reasonable doubt is not postulated where human relationship is involved and eye witnesses are difficult to obtain and thus direct evidence to prove adultery is not possible and has to be inferred from circumstances which exclude any presumption of innocence in favour of the person against whom it is alleged., As observed above, both the applicant husband and the non‑applicant wife lived together for 24 days, i.e., from 15 September 2009 up to 9 October 2009 after the compromise arrived at between them in a proceeding for restitution of conjugal rights, which ended vide order dated 15 September 2009 in Civil Suit No. 26‑A/2009, and on 9 October 2009 it was discovered vide sonography report dated 9 October 2009 that she was pregnant with a pregnancy of 40 days. It was also found that even prior to 15 September 2009, the applicant husband was under the treatment of Dr. R. S. Meravi from 19 August 2009 up to 13 September 2009 as his left leg was fractured and the applicant was thus virtually not in contact with his wife from 19 August 2009, yet she was found to be pregnant carrying a pregnancy of 40 days. In view thereof, it is evident that she had sexual intercourse with someone other than her husband and the applicant is, therefore, entitled to a decree for dissolution of marriage on the ground enumerated under Section 13 (1) (i) of the Hindu Marriage Act, 1955., Regarding the allegation of cruelty, it is found to be proved as the non‑applicant wife lodged the report against her husband and in‑laws on 7 September 2008, i.e., after more than twelve years from the date of her marriage which took place on 1 May 1996, and based upon which the offence punishable under Sections 498‑A, 323 read with Section 34 of the Indian Penal Code was registered against them. They were acquitted of the charge vide judgment dated 30 October 2009 passed by the Judicial Magistrate First Class, Bilaspur in Criminal Case No. 850/2008 State of Chhattisgarh versus Shivkumari Sahu and others. Although they were acquitted, no allegations were ever made by her prior to lodging the report dated 7 September 2008, based upon which the applicant was put in jail for some time. Levelling alleged allegations after such a long time caused mental cruelty upon him. The Supreme Court in Rani Narasimha Sastry versus Rani Suneela Rani reported in 2019 Supreme Court Online SC 1595 held that mere lodging of a complaint or FIR cannot ipso facto be treated as cruelty, but when a person undergoes a trial in which he is acquitted of an offence under Section 498‑A of the Indian Penal Code, it cannot be accepted that no cruelty has been meted on the husband., It also appears that both husband and wife have been living separately since 18 April 2010 and thus they are living apart for more than twelve years. The marriage solemnised on 1 May 1996 has irretrievably broken down and is dead for all purposes and cannot be revived, as held by the Supreme Court in K. Srinivasa Rao versus D. A. Deepa reported in (2013) 5 Supreme Court Cases 226, which observed that the parties have been staying apart for more than ten years, creating an unbridgeable distance, and that irretrievable breakdown of marriage, though not a ground for divorce under the Hindu Marriage Act, 1955, is a weighty circumstance necessitating severance of the marital tie., Applying the aforesaid principles to the case in hand, it appears that both parties have been living separately for more than twelve years, and a false criminal case was lodged by the non‑applicant wife against her husband and in‑laws, which certainly caused mental cruelty to him. Consequently, the applicant husband is entitled to a decree for dissolution of marriage on the ground enumerated under Section 13 (1) (ia) of the Hindu Marriage Act, 1955 as well. The finding of the trial Court declining to grant a decree for divorce on the ground of cruelty is accordingly set aside and the applicant is held to be entitled to a decree for divorce under Section 13 (1) (ia) of the Hindu Marriage Act, 1955., In view of the foregoing, the appeal is allowed and the applicant husband is entitled to a decree for dissolution of marriage on the grounds enumerated under Sections 13 (1) (i) and (ia) of the Hindu Marriage Act, 1955. No order as to costs. A decree be drawn accordingly.
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Standard Operating Procedure for physical hearing (with hybrid option) before Honourable Supreme Court of India. In continuation of directions already notified regarding functioning of the Supreme Court of India, in the wake of the Covid‑19 pandemic, more particularly through Circulars dated 14 March 2020, 23 March 2020, 30 August 2020 and 05 March 2021, and on consideration of the requests received from the Bar Associations, and on recommendations of the Honourable Judges Committee in that regard, the Honourable Chief Justice of India has been pleased to direct as follows:, With a view to gradually facilitate resumption of physical hearing, the final hearing and regular matters listed on non‑miscellaneous days may be heard in the physical mode with hybrid option, as may be decided by the Honourable Bench, considering the number of parties in a matter as well as the limited capacity of the courtrooms; further, any other matter may be heard in physical mode on such days, if the Honourable Bench directs likewise. All other matters, including those listed on miscellaneous days, shall continue to be heard through video or tele‑conferencing mode., At the discretion of the Honourable Bench, there may be breaks during the hearings in a courtroom in physical mode for a period of about 15 minutes, so that the courtroom may be sanitized, during which it is necessary that the entire courtroom be vacated., Unless otherwise directed by the Honourable Bench, final hearing and regular matters where the number of advocates for the parties is more than the average working capacity of the courtrooms, as per Covid‑19 norms, i.e., approximately 20 per courtroom at any given time, shall invariably be listed for hearing through video or tele‑conferencing mode; however, in case the Honourable Bench directs hearing of such matters to be held through the physical mode, the appearance of the parties, whether by physical presence or through video or tele‑conferencing, will be facilitated as per the directions of the Honourable Bench., In a matter listed for physical hearing with hybrid option, one Advocate on Record or his nominee, one arguing counsel and one junior counsel per party will be allowed entry; one registered clerk per party, as may be chosen by the Advocate on Record, shall be allowed entry to carry paper books, journals etc. of the counsels up to the courtrooms., In any such matter listed for physical hearing with hybrid option, all the counsels appearing for one party can appear either through physical mode or through video or tele‑conferencing. Advocates on Record are required to register themselves on the Supreme Court of India portal and submit their preferences for appearing before the Honourable Supreme Court of India either through physical mode or through video or tele‑conferencing mode within 24 hours or 1:00 PM next day, as the case may be, after the publication of the weekly list of final hearing and regular matters., Once hearing through physical mode is opted by the Advocate on Record or petitioner in person, hearing through video or tele‑conferencing mode to the party concerned will not be facilitated., The entry of the counsels and parties into the High Security Zone to appear for physical hearing will be through daily special hearing passes which will be issued by the Registry, on the basis of authorization by the concerned Advocate on Record on the portal, as indicated in point 5 above (user guide is published separately)., Multiple sets of one chair and table are being placed inside the courtrooms, in the areas demarcated for Lead Advocates, and it shall be incumbent upon the users to maintain minimum prescribed physical distancing norms between each set, which should not be removed from their positions., Special hearing pass holders, upon completion of necessary formalities, online or otherwise as may be notified in due time, shall enter the High Security Zone through the designated gate, after subjecting themselves to check by thermal and other scanning devices as may be installed for detecting body temperature, infection status, etc., On entering the High Security Zone, such pass holders may proceed to the designated waiting areas or bar lounges or libraries and wait for their turn to enter respective courtrooms where physical hearing with hybrid option of their respective cases may be scheduled, and they would proceed only through the movement corridors created and demarcated for the purpose., At the designated waiting areas, volunteers may also guide the Advocates on Record and counsels further, as and when their turn comes for entering the designated courtroom for hearing., Subject to the capacity of any courtroom, the entry of parties in a matter will be permitted not earlier than ten minutes prior to the start of hearing of that matter., The entry into and exit from each courtroom shall be by separate channels or doors., It may be noted that wearing of mask, frequent use of hand sanitizer and maintaining physical distancing norms are mandatory for all entrants into the Supreme Court of India premises, including into the courtrooms., On completion of hearing of their respective cases, the Lead Advocates, registered clerks, etc., shall move out of the High Security Zone through the movement corridors and exit from the designated gates., Lead Advocates and counsels having more than one case for hearing in physical mode shall be issued separate special hearing passes for each case and after hearing of one case is complete, they may wait in the designated staging or waiting areas for the purpose of appearing for the next case., It is reiterated that in order to facilitate video or tele‑conferencing for the Lead Advocates and counsels, a dedicated Video Conferencing Facilitation Centre is located in Block B/C, Ground Floor, Additional Building Complex, Supreme Court of India, which can be accessed through Gate No. 1 of that complex., It is further reiterated that to facilitate appearance of Lead Advocates and litigants through video‑conferencing mode, the Supreme Court Video Conferencing Facilitation Rooms in the seven District Courts Complexes of Delhi, as notified by circular dated 13 June 2020 on the Supreme Court of India website, continue to function. As directed, the physical hearings with hybrid option are to commence with effect from 1 September 2021.
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B.A. No.3475 of 2022 Dated this the 22nd day of June, 2022 Apprehending arrest in a non-bailable offence, a cine artist cum producer has approached the High Court of Kerala seeking pre‑arrest bail under section 438 of the Code of Criminal Procedure, 1973. Petitioner alleges that the ingredients of the offences are not made out and hence his liberty ought not be curtailed, unless and until he is found guilty in accordance with the procedure established by law., On 22.04.2022, on the basis of information received from an actress alleging several instances of rape committed on her by the petitioner, Crime No.515 of 2022 of Ernakulam Town South Police Station was registered. A statement was also given by the victim under Section 164 of the Code of Criminal Procedure on 23.04.2022. The petitioner is alleged to have committed rape on the victim with the promise of marriage, twice during her menstrual periods and on other occasions, after causing physical injuries and without her consent. The prosecution further alleges that, on coming to know about the registration of the crime, petitioner went abroad in an attempt to flee from the hands of law and, sitting in the comfort of another country, instituted this bail application under section 438 of the Code of Criminal Procedure., Petitioner, on the other hand, denies the allegation of rape as wholly false and pleaded that the accusation is only a machination of the victim who was upset on getting information that another actress was decided to be cast as a heroine, by the Director of that movie, in a new movie project proposed to be produced by the petitioner. The survivor even expressed her ire at the new heroine in front of many people, on 18-04-2022. It was also pleaded that evidence of the nature of relationship between the petitioner and the survivor is available in plenty, on the mobile phones through WhatsApp messages and Instagram chats and other documents. It is alleged that, by quirky conduct, a consensual relationship is projected as rape., Sri S. Rajeev, learned counsel for the petitioner contended that though the allegations of rape are alleged to have occurred between 16.03.2022 to 14.04.2022, the victim never rushed to a police station and on the other hand she gave the complaint only on 22.04.2022. It was submitted that petitioner left for Dubai on a pre‑planned trip and that, subsequent to his return under the protection of an order from the High Court of Kerala, he has been subjected to interrogation for more than 38 hours. Petitioner contends that he has voluntarily surrendered the two mobile phones in his possession and has also handed over all documents available with him. On the aforesaid basis, it was urged that further custodial interrogation of the petitioner was not warranted and that he is willing to cooperate with the investigation., The learned counsel also argued that an acquaintance with the victim from 2018 onwards slowly turned into a relationship with instances of consensual sex. Further, the consensual sexual relationship was done with the knowledge that petitioner was a married man and therefore the offences alleged are not made out at all. On behalf of the petitioner, it was further contended that the numerous WhatsApp messages between the petitioner and the survivor will reveal the nature of their relationship. The phones having been already handed over to the police, even the deleted messages between 16-03-2022 to 31-03-2022, which were deleted before the present allegations cropped up, can also be retrieved by scientific analysis, for which the mobile phones have already been forwarded., Sri Grashious Kuriakose, the learned Additional General of Prosecutions vehemently opposed the grant of pre‑arrest bail and submitted that the practice of filing applications for bail sitting outside the country should not be entertained. He further submitted that the investigation has collected evidence against the petitioner and the offences alleged being serious and heinous; grant of pre‑arrest bail will not only prejudice the investigation but will also send a wrong signal to the society. The learned Senior Counsel further contended that the presumption under section 114A of the Evidence Act, 1872 clearly applies to the instant case and hence the principle of presumption of innocence stands superseded. It was urged that the victim is an upcoming film actress who acted in a movie produced by the petitioner, which happens to be the only movie in which she has acted to date, had looked upon the accused as an elder colleague and implicitly trusted him, but he misused the trust and exploited her, thereby revealing his true colour of a wolf in a sheep's clothing. According to the prosecution, the cumulative effect of all the above leans against the grant of pre‑arrest bail and, on the other hand, custodial interrogation of the petitioner is required, still., The learned Additional General of Prosecution further contended that the investigation so far has revealed that the petitioner was in the habit of developing sexual relationships with women in distress. He further contended that though petitioner had surrendered his mobile phone to the investigating team, the messages from 16-03-2022 till 31.03.2022 were completely erased, which compels the investigation to doubt the veracity of the contentions now being put forth by the petitioner. Apart from the above, it was also argued that the petitioner came on Facebook live, revealing the identity of the victim, making her a laughing stock and even threatened to prosecute her. It was also asserted that the gravity of the allegations, the conduct of the accused, apart from the requirement to conduct a test identification parade as well as his potency test are areas which require custodial interrogation. He concluded by submitting that even the subsequent conduct, after registration of the crime, should disentitle the petitioner to any relief in this application., Sri M. R. Rajesh, learned counsel appearing on behalf of the victim argued with great elan that petitioner had misused and abused the trust reposed on him by her and that even during her menstrual periods, ignoring her repeated objections, forced himself upon her. As a novice artist, her objections were easily subdued and she could not prevent the repeated intrusions into her bodily autonomy and was subjected to repeated sexual assaults. The learned counsel also submitted that the victim had approached the police within eight days of the last assault, which itself shows the veracity of her allegations and hence, this was not a fit case for the grant of pre‑arrest bail., Adv. M. R. Rajesh, further argued that the modus operandi adopted by the petitioner by building up confidence and trust in the victim as a powerful actor and producer of movies created an aura of faith and thereafter sexually abused the victim. It was further pointed out that though the accused had come out in the public, revealing the identity of the victim and even stated that he retains the WhatsApp messages, the documents produced show absence/deletion of such messages from the mobile phones for the period till 31.03.2022. The learned counsel further argued that the selective deletion of WhatsApp messages is crucial, considering the victim's statement that on 16.03.2022 she was brutally raped after forcing her to consume red wine. The learned counsel further contended that without custodial interrogation, the investigation will not be able to unravel the clear picture that happened from 16.03.2022 onwards and that the manipulation of evidence by deleting the WhatsApp messages indicates the extent to which the accused could go to destroy the evidence. In such circumstances, the benefit of pre‑arrest bail ought not to be granted., Exhaustive arguments were raised by all the counsel with the aid of numerous judgments. However, the High Court of Kerala reminds itself that this is an application for anticipatory bail. The nuances of consent under the Indian Penal Code or of rape are not to be deliberated upon at this stage, lest it prejudices either side, at the time of trial. In this phase of legal proceedings, the High Court of Kerala is only to consider the competing claims of liberty of an individual guaranteed under Article 21 of the Constitution of India as against the power of investigation of the police against a person accused of a serious crime., However, before considering the merits of this application, it is essential to advert to the preliminary objection raised by the respondents on the maintainability of this bail application. When the application was filed, petitioner was not in the country. It was alleged that petitioner fled from India after coming to know of the registration of the crime. Noticing the intention of the petitioner to subject himself to the jurisdiction of the High Court of Kerala, an interim order was issued not to arrest the petitioner. On that basis, petitioner returned and is presently in Kerala., Since the question regarding the maintainability of an application for pre‑arrest bail while the applicant is residing outside the country arises quite often, the said issue is considered. On the basis of decisions in Souda Beevi and Another v. S.I. of Police and Others (2011 (3) KHC 795) and Shafi S.M. v. State of Kerala and Another (2020 (4) KHC 510) it was argued that the presence of the petitioner outside the country disentitles the applicant to seek pre‑arrest bail., A reading of the aforementioned two decisions shows that such an absolute restriction has not been laid down by the High Court of Kerala. On the other hand, all that those two decisions say is that, at least before the final hearing, the Court must be convinced that the applicant is within the jurisdiction of the Court so that the conditions, if any imposed, could be effectively enforced., Section 438 of the Code of Criminal Procedure does not contain a restrictive mandate that a person residing outside the country cannot file an application for anticipatory bail. It is possible that a person can apprehend arrest even outside the country for an offence that occurred in India. With the advancement in investigative technology and communication, the various agencies of investigation could even be deployed to arrest a person outside the country. An apprehension of arrest can arise even while the applicant is residing outside the country. Thus, when a bona fide apprehension exists, the statute confers power on such a person to seek protection from arrest. In the absence of any restrictive clauses in Section 438, restricting the right of a person residing outside the country from filing an application for pre‑arrest bail, the court cannot read into the provision such a restriction which the legislature did not incorporate., In the decisions in Sushila Aggarwal and Others v. State (NCT of Delhi) and Another [(2020) 5 SCC 1], as well as Shri Gurbaksh Singh Sibbia and Others v. State of Punjab [(1980) 2 SCC 565], it was held that courts cannot read into section 438 of the Code of Criminal Procedure a restriction, which the legislature had not thought it fit to impose. In fact, the Court deprecated the practice of an over‑generous infusion of constraints into section 438 and even observed that such restrictions can make the provision itself constitutionally vulnerable. Therefore, I am of the considered view that an application for pre‑arrest bail can be filed even by a person residing outside the country. However, the only limitation is that prior to the final hearing, the applicant must be inside the country to enable the court to impose and enforce conditions contemplated under the statutory provisions., Section 438 of the Code of Criminal Procedure has conferred a discretionary right on the higher courts to consider whether a pre‑arrest bail ought to be granted under the particular circumstances of the case. The discretion conferred upon the superior courts of law, though not controlled by any specific guidelines, is not to be exercised arbitrarily. Law adjures such courts to utilize their trained discretion while considering an application for pre‑arrest bail., Though, as mentioned earlier, numerous decisions were cited by either side, some old and some recent, a narrative of all those decisions is not required since the position of law is classically illustrated in two judgments, both of which are Constitution Bench judgments., In Shri Gurbaksh Singh Sibbia and Others v. State of Punjab [(1980) 2 SCC 565], mentioned earlier, the Supreme Court, after noticing the object behind the incorporation of section 438 of the Code of Criminal Procedure held that the said section is a procedural provision which is concerned with the personal liberty of an individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. After noticing that the crimes, the criminals and even the complainants can occasionally possess extraordinary features, in which the powerful processes of criminal law could be perverted for achieving extraneous ends, the Supreme Court observed that it is to meet such situations also that the provision for grant of anticipatory bail was introduced into the Code of 1973. It was even noted that a developed jurisprudence of bail is integral to a socially sensitized judicial process, especially in the light of the guarantee of personal liberty of an accused. See the decision in Gudikanti Narasimhulu v. Public Prosecutor [(1978) 1 SCC 240] also., Again in a recent judgment, another Constitution Bench of the Supreme Court in Sushila Aggarwal and Others v. State (NCT of Delhi) and Another [(2020) 5 SCC 1] has, after considering the entire gamut of the law relating to anticipatory bail, come to twelve significant conclusions in paragraph 92 of the said judgment. Five of those conclusions which are relevant are extracted below: 92.4. Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail, or refuse it. Whether to grant or not is a matter of discretion; equally whether and if so, what kind of special conditions are to be imposed (or not imposed) are dependent on facts of the case, and subject to the discretion of the court. 92.5. Anticipatory bail granted can, depending on the conduct and behavior of the accused, continue after filing of the charge‑sheet till end of trial. 92.6. An order of anticipatory bail should not be blanket in the sense that it should not enable the accused to commit further offences and claim relief of indefinite protection from arrest. It should be confined to the offence or incident for which apprehension of arrest is sought, in relation to a specific incident. It cannot operate in respect of a future incident that involves commission of an offence. 92.7. An order of anticipatory bail does not in any manner limit or restrict the rights or duties of the police or investigating agency to investigate into the charges against the person who seeks and is granted pre‑arrest bail. 92.8. The observations in Sibbia regarding limited custody or deemed custody to facilitate the requirements of the investigative authority would be sufficient for the purpose of fulfilling the provisions of Section 27, in the event of recovery of an article, or discovery of a fact, which is relatable to a statement made during such event (i.e., deemed custody). In such event, there is no question (or necessity) of asking the accused to separately surrender and seek regular bail., The above decisions thus hold that while considering an application for anticipatory bail, the court must be guided by considerations such as nature and gravity of the offences, the role attributed to the applicant, facts of the case, the character of evidence, position and status of the accused with reference to the victim and witnesses, the likelihood of the accused fleeing from justice and repeating the offences, the possibility of the accused tampering with the evidence and obstructing the course of justice., While considering an application for bail, the High Court of Kerala must take care not to enter into a meticulous examination of the materials collected or comment on the same. Courts must also avoid scrutinizing feminine conduct from a masculine point of view. Myths, stereotyping and even generalisation, which are all different forms of bias, must be avoided. As observed in Aparna Bhat and Others v. State of Madhya Pradesh and Another [(2021) SCC OnLine SC 230], the stereotyped notions of chastity, resistance to rape, having visible physical injuries, behaving in a certain way, reporting the offence immediately, etc. are all rape myths. Notwithstanding the above, care must be taken to avoid consensual relationships being converted into instances of rape. Thus, each case presents its own factual scenario and therefore certain grounds peculiar to each case can be taken into account., Viewed in the perspective of the principles referred above, the High Court of Kerala called for the case diary of the investigation, to satisfy itself whether anticipatory bail can be granted to the petitioner or not. In Chidambaram P. v. Director of Enforcement [(2019) 9 SCC 24], it was observed that the court can peruse the case diary, even before the trial begins for various purposes, including at the stage of considering an application for pre‑arrest bail. Conscious of the need to avoid meticulous analysis of materials collected by the investigation, as revealed from the case diary, I refrain from discussing those in detail., The following circumstances are noted for the purpose of this application: (a) The survivor was aware that the petitioner was a married man and that he is continuing in the marriage for the sake of his child. (b) Petitioner being involved in a subsisting marriage, there was no possibility of a legal marriage with the survivor at present. (c) During the period from 16-03-2022 till 14-04-2022, the survivor was not under any form of confinement. (d) The petitioner and the survivor have been communicating with each other through WhatsApp and Instagram consistently and in plenty. (e) The available messages (from 31-03-2022 to 17-04-2022) between the petitioner and the survivor prima facie convey an intense relationship between them. (f) While the petitioner deleted the messages from 16-03-2022 till 30-03-2022 from his phones, the survivor also deleted all messages between them for the entire period in question. (g) Mobile communications between the petitioner and survivor at least from 31-03-2022 till 17-04-2022 do not refer to any instances of sexual assault. (h) Petitioner has already been questioned for 38 hours and he has handed over to the investigating officer his two mobile phones, allegedly used by him during the period. (i) The mobile phones of the petitioner as well as the survivor have been sent for examination to the forensic science laboratory and it is informed that even the deleted WhatsApp and Instagram messages/chats can be retrieved. (j) Petitioner did not include the survivor in a proposed new movie and another actress has been chosen as a heroine, which came to the knowledge of the survivor after 15-04-2022 and she shouted at the petitioner. (k) Petitioner’s wife had filed a case against him in 2018 alleging, inter alia, domestic violence and promiscuous behaviour; however, the complaint was withdrawn within a few weeks. (l) Petitioner’s passport has already been impounded and hence he cannot flee from the country., The above‑noted circumstances cannot be ignored while arriving at the conclusion on whether the petitioner should be given the benefit of pre‑arrest bail or not., Though the learned Additional Director General of Prosecution and the learned counsel for the survivor laid great emphasis on the presumptions available under section 114(a) as well as under section 53(a) of the Evidence Act, 1872, I am of the view that at the stage of considering the grant of pre‑arrest bail, those provisions cannot be given undue preference. The presumptions provided under section 114(a) and section 53(a) are rebuttable. Further, as the provisions themselves indicate, those presumptions will arise only when substantive evidence is adduced in a court of law, i.e., at the stage of trial. Time has therefore not yet reached to apply those presumptions., On a consideration of the above‑mentioned circumstances, I am of the view that petitioner ought to be given the benefit of pre‑arrest bail, subject to the condition of limited custody to the investigating officer, as contemplated in the decision of the Supreme Court in Gurbaksh Singh Sibbia’s case (supra) and in Susheela Aggarwal’s case (supra)., Accordingly, I allow this application for pre‑arrest bail on the following conditions: (1) The petitioner shall surrender before the Investigating Officer on 27-06-2022 at 09.00 AM for interrogation. (2) The petitioner can be interrogated for the next seven days, i.e., from 27-06-2022 till 03-07-2022 (inclusive) from 09.00 AM till 06.00 PM every day, if required. The petitioner shall be deemed to be under custody during the aforesaid period for facilitating the requirements of investigation. (3) If the Investigating Officer intends to arrest the petitioner, then he shall be released on bail upon the petitioner executing a bond for Rs.5,00,000/- (Rupees Five Lakhs only) with two solvent sureties each for the like sum before the Investigating Officer. (4) Petitioner shall appear before the Investigating Officer as and when called for. (5) Petitioner shall not contact or interact with the victim or any of the witnesses. (6) Petitioner shall not indulge in any form of attack through social media or other modes against the victim or her family. (7) Petitioner shall not leave the State of Kerala without prior permission of the jurisdictional court and shall co‑operate with the investigation. (8) Petitioner shall not commit any other offence while he is on bail. (9) Though petitioner’s passport has been impounded, he shall surrender his passport as and when he is required to do so.
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CRIME NO.703/2022 OF Kozhikode Town Police Station, Kozhikode. Bail Application No. 759 of 2023. Dated this the 8th day of February, 2023. The petitioners, who are accused 1 and 2 in Crime No.703/2022 of Kozhikode Town Police Station, seek anticipatory bail in this matter by resorting to Section 438 of the Code of Criminal Procedure., Heard the learned counsel for the petitioners as well as the learned Public Prosecutor., Precisely the allegation of the prosecution is that accused 1 and 2 herein committed offence punishable under Section 63 of the Copyright Act by using the music of 'NA V ARASAM', which was exhibited in 'KAPPA' TV owned by Mathrubhumi Printing and Publishing Co. Ltd., performed by Thaikkudam Bridge band by including the same music produced by the first accused and directed and acted by the second accused, who have thereby violated the copyright., While arguing for anticipatory bail, it is submitted by the learned counsel for the petitioners that the entire allegations are false. According to him, the de facto complainant as well as Thaikkudam Bridge Band filed two separate suits before the Kozhikode District Court alleging copyright violation and when the petitioners herein challenged the maintainability of the above suits, the District Court found that the suits were not maintainable before the District Court and were directed to be presented before the commercial court having jurisdiction to decide the issue., Challenging one out of the order, First Appeal Original No. 147/2022 has been filed before the Kozhikode High Court and the same was posted for judgment by the Kozhikode High Court. According to the learned counsel for the petitioners, the petitioners never exhibited the song 'NA V ARASAM' in the movie song 'V ARAHAROOPAM' which is an independent creation and the same did not have any connection with 'NA V ARASAM'. Further, the entire allegation is within the ambit of a civil suit., The learned counsel for the petitioners submitted further that even the prosecution did not collect any materials to prove that the 'V ARAHAROOPAM', an independent creation at the instance of the petitioners, is having similarity or is deceptively similar in any manner and the prosecution relied on, prima facie, the premise that somebody who saw 'KANTARA' film as well as 'NA V ARASAM' opined similarity. The learned counsel for the petitioners would submit that the petitioners are ready to cooperate with the investigation by subjecting themselves to interrogation and other purposes. Therefore, in the background facts, as submitted, the learned counsel for the petitioners pressed for grant of anticipatory bail., Whereas the learned Public Prosecutor vehemently opposed anticipatory bail plea at the instance of the petitioners on the submission that the same would hamper the investigation. It is submitted by the learned Public Prosecutor that as per the report of the Investigating Officer and as could be read out from the case diary, the statements of the Senior Manager of Mathrubhumi KAPPA TV staff, Assistant Manager DIVO Company, who have noticed similarity of music 'NA V ARASAM' and 'V ARAHAROOPAM' only after the same was intimated by the DIVO Company. Further, the Assistant Manager of DIVO Company after noticing similarity of the music, the same was shared with both parties and they had even participated at a Google Meet to settle the matter amicably. Further, the investigation also would reveal similarities, as contended by the de facto complainant, that an offence punishable under Section 63 of the Copyright Act is made out. In such a case, the arrest and interrogation of the petitioners are necessary to accomplish meaningful investigation and successful prosecution., Before discussing merits of the case and truth of allegations, prima facie, it is worthwhile to decide a question as to whether offence under Section 63 of the Copyright Act is a non-bailable or bailable offence? In this connection, it is pertinent to refer the judgment in Criminal Appeal No. 807/2022 dated 20 May 2022 rendered by the Supreme Court of India, wherein exactly the question was considered. In paragraph 7 of the above judgment, the Supreme Court held that offence under Section 63 of the Copyright Act is a cognizable and non-bailable offence, while setting aside the finding entered into by the High Court holding the view that the same is a non-cognizable and bailable offence. Therefore, the legal position is well settled that an offence under Section 63 of the Copyright Act is non-bailable and cognizable., It is true that on noticing plagiarisation of the work done by Thaikkudam Bridge band under the auspices of KAPPA TV by name 'NA V ARASAM', in 'KANTARA' film under the name and style 'V ARAHAROOPAM', civil suits were instituted by the complainant M/s. Mathrubhumi owning KAPPA TV. It is true that on hearing the above suits, the District Court found that the suits are not maintainable before the District Court, since the transaction is commercial in nature so that the jurisdiction is vested with the Commercial Court and the legal issue will be decided by the Kozhikode High Court in First Appeal Original No. 147/2022. No doubt, the Copyright Act, 1957 has been enacted with a view to protect copyright secured by a person or a firm, as the case may be, without being infringed by third parties or any others. Section 63 of the Copyright Act, 1957 makes infringement of copyright or other rights conferred by the Copyright Act an offence. Section 63 is to the following effect:, 63. Offence of infringement of copyright or other rights conferred by this Act:— (a) any person who knowingly infringes or abets the infringement of (i) the copyright in a work, or (ii) any other right conferred by this Act, except the right conferred by Section 53A, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees: Provided that where the infringement has not been made for gain in the course of trade or business the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months or a fine of less than fifty thousand rupees., So, the prime question to be considered herein is whether there are prima facie materials in this case to see that there is infringement of copyrights in so far as 'NA V ARASAM', for which copyright was secured by KAPPA TV owned by Mathrubhumi, by including the same in 'KANTARA' cinema under the name and style 'V ARAHAROOPAM'. In this connection it is to be noted that initially, as admitted by both sides, the District Court granted stay in exhibiting the film 'KANTARA' with the above song and later when the civil suits were returned for filing before the proper court, the interim injunction initially granted by the District Court on the finding that there is prima facie copyright violation, stands vacated. Prima facie the opinion collected by the Investigating Officer is to the effect that there is similarity between the works. The Investigating Officer, on gathering opinion from an expert, reported that 'V ARAHAROOPAM' is the plagiarised and pirated version of 'NA V ARASAM'. If so, the violation of copyright alleged by the de facto complainant could be discernible from the prosecution materials, prima facie. Thus detailed and fair investigation is absolutely necessary in this regard. Therefore, at the initial stage of investigation, the Kozhikode High Court could not hold that there are no prima facie materials and the petitioners herein are innocent and they did not commit offence punishable under Section 63 of the Copyright Act., As I have already pointed out, right of a person or a firm who obtained copyright in respect of a particular subject is a protected right and any infringement thereof is a serious offence punishable under Section 63 of the Copyright Act. The legislative intent behind the Copyright Act is to protect the copyright, which one obtained after huge investment and tedious efforts to get the subject as one with high fame. If someone enjoys or uses the same either by plagiarisation or by making the same deceptively similar and getting benefit out of them, either monetary or otherwise by infringing the said right, allowing infringement to continue and to facilitate the infringer to use or exhibit a cinema with the said plagiarised version, ultimately after the expiration of the vital part of the period of use or exhibition and collection of huge amount by the Director and Producer of the cinema, in fact, the same will be detrimental to the interest of the persons who obtained copyright., That apart, releasing the accused on anticipatory bail and allowing the infringement to continue so as to permit the infringer of the copyright to take benefit out of the same, could not be done. If so, ultimately the infringer would get benefit out of the plagiarised and pirated version after infringing the copyright of another person which he obtained after long cherished hard work and intellectual application of mind. Resultantly, the copyright holder's right to enjoy benefit out of the copyright protected subject matter practically will be taken away. Therefore, while considering grant of anticipatory bail in cases of such nature, the courts should be very vigilant foreseeing all the above aspects. In the case at hand, admittedly civil litigations have been initiated, but further proceedings stand stalled because of the jurisdictional issue which will be addressed by the Kozhikode High Court in First Appeal Original No. 147/2022. Therefore, grant of anticipatory bail shall be on imposing a condition, restraining the petitioners from exhibiting the cinema 'KANTARA' along with the music 'V ARAHAROOPAM' for a reasonable period till an interim order or final order in this regard will be passed by the competent civil court. By imposing such a condition, I am inclined to allow this petition., Accordingly the petition stands allowed on the following conditions: (i) The petitioners shall surrender before the Investigating Officer for two days, i.e., on 12 February 2023 and 13 February 2023, between 10 a.m. and 1 p.m., for interrogation. The Investigating Officer can interrogate them and on completion of interrogation within the above time specified, if they are to be arrested, they shall be produced before the jurisdictional court. On such production, the jurisdictional court shall release the petitioners on bail on their executing bonds for Rs. 50,000 (Rupees Fifty Thousand Only) each with two solvent sureties each for the like amount to the satisfaction of the jurisdictional court concerned. (ii) Accused/petitioners shall not intimidate the witnesses or tamper with evidence. They shall cooperate with the investigation and shall be available for trial. They shall appear before the Investigating Officer, as and when directed. (iii) Accused/petitioners shall not leave India without prior permission of the jurisdictional court. (iv) Accused/petitioners shall not involve in any other offence during the currency of bail and any such event, if reported or came to the notice of the Kozhikode High Court, shall be a reason to cancel the bail hereby granted. (v) The specific condition further is that the petitioners shall not exhibit the film 'KANTARA' along with the music 'V ARAHAROOPAM' in the film till an interim order or final order after addressing infringement of copyright in this matter will be passed by a competent civil court. It is made specifically clear that the petitioners also can move before the competent civil court at their instance at the earliest in this regard to have a meritorious decision as regards to the allegation of infringement of copyright, as per law.
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CRM-M No.14326 of 2023(O&M) Sukhbir Singh Badal Petitioner Versus State of Punjab Respondent Present: Mr. R.S. Cheema, Senior Advocate with Mr. D.S. Sobti, Advocate, Mr. Shivkartar Singh, Advocate, Mr. Arshdeep Singh Cheema, Advocate, Mr. Tarunam Cheema, Advocate and Mr. Arshdeep Singh Kler, Advocate for the applicant/petitioner. Mr. Gaurav Garg Dhuriwala, Additional Advocate General, Punjab. Mr. Imaan Singh Khara, Advocate for the complainant., Learned Senior Counsel for the petitioner contends that on 01.06.2015, an incident of sacrilege was reported regarding theft of Sri Guru Granth Sahib Ji from Gurdwara at Burj Jawahar Singhwala, District Faridkot. FIR No.63 dated 02.06.2015 was registered under Sections 295-A and 380 of the Indian Penal Code in Police Station Bajakhana, District Faridkot. The District Magistrate, after considering law and order situation, imposed Section 144 of the Criminal Procedure Code from 08.09.2015 to 05.11.2015., The second incident of sacrilege was also reported when two handwritten posters containing sacrilegious contents against Sri Guru Granth Sahib Ji were pasted near a Gurdwara. FIR No.117 dated 25.09.2015 under Section 295-A of the Indian Penal Code, Police Station Bajakhana, District Faridkot was registered., Third incident of sacrilege was reported in October 2015 and FIR No.128 was registered on 12.10.2015 under Sections 295 and 120-B of the Indian Penal Code at Police Station Bajakhana, District Faridkot. In this third incident, some torn pages of Sri Guru Granth Sahib Ji were found in a street opposite the Gurdwara at Bargadi. There was mass protest and also violent incidents in Kotkapura. Police force was also requisitioned from other districts in view of serious law and order situation at Kotkapura., On 12.10.2015 and 13.10.2015, mob protesting against the incidents of sacrilege in Kotkapura turned violent. In view of the situation, the authorities resorted to mild lathi charge with the permission of the Sub Divisional Magistrate. The Sub Divisional Magistrate ordered the use of water cannon and tear gas to disperse the violent mob. The Sub Divisional Magistrate also ordered firing in the air. Police officials got injuries in the incident., On 14.10.2015, there was a clash in the morning; some policemen and protesters were injured at Kotkapura. After few hours, information was received of a clash between a police party headed by Mr. Charanjit Sharma, Senior Superintendent of Police, Moga and protesters at Behbal Kalan. In the said clash, two persons died. FIR No.192 was registered on 14.10.2015 under Sections 307, Section 25 of the Arms Act and Sections 3/4 of the Prevention of Damage to Public Property Act, 1984 against fifteen unnamed persons and other unknown persons for causing injuries to many police officials, damage to public property by burning police vehicles, government buses and private vehicles in Police Station City Kotkapura. FIR No.129 was registered at Police Station Bajakhana in respect of the incident of 14.10.2015 in village Behbal Kalan., A Special Investigation Team was constituted by the Director General of Police, Punjab comprising of Mr. Iqbal Preet Singh Sahota, Indian Police Service, Director Bureau of Investigation, Punjab as Chairman; Mr. Amar Singh Chahal, Indian Police Service, Deputy Inspector General, Ferozepur Range, Ferozepur as Member; and Mr. R.S. Khatra, Indian Police Service, Deputy Inspector General, Bathinda Range, Bathinda as Member for investigating FIR No.129 dated 14.10.2015, Police Station Bajakhana and FIR No.192 dated 14.10.2015, Police Station Kotkapura. FIR No.130 dated 21.10.2015 was registered regarding deaths in police firing on the recommendation of the Special Investigation Team in respect of the incident dated 14.10.2015 in village Behbal Kalan, for which FIR No.129 dated 14.10.2015 had already been registered. In total, four FIRs were registered in respect of violence at Kotkapura and Behbal Kalan., Vide notification dated 16.10.2015, Government of Punjab under the Commission of Inquiry Act, 1952, appointed Hon'ble Justice Zora Singh (Retired) to inquire into the sacrilege issues and the violence which erupted thereafter. Vide notification dated 02.11.2015 issued by the State of Punjab, investigations of FIR No.63 dated 02.06.2015, FIR No.117 dated 25.09.2015 and FIR No.128 dated 12.10.2015, all registered with Police Station Bajakhana, were sought to be transferred to the Central Bureau of Investigation., Statement of Pardeep Singh, Inspector was recorded before the Commission of Inquiry on 09.03.2016, where he did not state anything about the petitioner., The Commission of Inquiry headed by Hon'ble Justice Zora Singh (Retired) submitted its report, but the same was not accepted by the State Government as it was not based on conclusive evidence., Second Commission of Inquiry was notified by the State of Punjab on 14.04.2017 and was headed by Hon'ble Justice Ranjit Singh (Retired). Second Special Investigation Team was constituted vide order dated 25.02.2018 passed by the Director Bureau of Investigation, which was headed by Mr. Pritam Singh, Punjab Police Service, Senior Superintendent of Police, Ferozepur. The said Special Investigation Team was to conduct further investigation effective from 25.02.2018., On 30.06.2018, Commission of Inquiry headed by Hon'ble Justice Ranjit Singh (Retired) submitted its report. Statements of Pardeep Singh, Inspector were recorded before the Commission of Inquiry on 04.07.2016, 23.07.2017 and 02.08.2017. On the recommendations of the Commission of Inquiry, FIR No.129 dated 07.08.2018 was registered for offences under Sections 307, 323, 34, 148, 149 of the Indian Penal Code and Section 27 of the Arms Act at Police Station City Kotkapura, District Faridkot., Notification was issued by the State of Punjab on 24.08.2018, transferring investigation of FIR No.129 dated 07.08.2018, Police Station Kotkapura and FIR No.130 dated 21.10.2015, Police Station Bajakhana to the Central Bureau of Investigation. Thereafter, subsequent decision was also taken by the State Government to transfer FIR No.129 dated 14.10.2015, Police Station Bajakhana and FIR No.192 dated 14.10.2015, Police Station City Kotkapura also to the Central Bureau of Investigation. On 24.08.2018, Action Taken Report was submitted by the Government of Punjab before the Punjab Legislative Assembly. On 28.08.2018, resolution was passed in the State Assembly to withdraw the investigation from the Central Bureau of Investigation. On 06.09.2018, two separate notifications were issued for withdrawal of investigation from the Central Bureau of Investigation., Thereafter, Director General of Police passed an order constituting a third Special Investigation Team to investigate FIR No.129 dated 14.10.2015 and FIR No.130 dated 21.10.2015, Police Station Bajakhana, FIR No.192 dated 14.10.2015 and FIR No.129 dated 07.08.2018, Police Station City Kotkapura. The SIT comprised: 1. Prabodh Kumar, Director Bureau of Investigation; 2. Arun Pal Singh, Inspector General, Crime; 3. Kunwar Vijay Partap, Inspector General, Crime; 4. Satinder Singh, Senior Superintendent of Police, Kapurthala; 5. Bhupinder Singh, Commandant, Punjab Rural Tactical Corps, Jalandhar., Learned Senior Counsel for the petitioner submits that the main charge-sheet under Section 173 of the Criminal Procedure Code was prepared and signed only by Kunwar Vijay Partap Singh. Model Code of Conduct was still in force and the same was initially filed against six persons namely Paramraj Singh Umranangal, Charanjit Singh, Mantar Singh Brar, Gurdeep Singh, Baljit Singh and Paramjit Singh Pannu under Sections 307, 326, 324, 323, 341, 201, 218, 120-B, 34 of the Indian Penal Code and Section 27 of the Arms Act. Subsequently, in the supplementary charge-sheet, Sumedh Singh Saini was also arrayed as an accused. Report under Section 173(8) of the Criminal Procedure Code was also submitted against the aforesaid six persons on 06.06.2019., CWP No.17458 of 2019 was filed by Gurdeep Singh and CWP No.17460 of 2019 was filed by Rachpal Singh. The Punjab and Haryana High Court quashed the charge-sheets filed in FIR No.129 dated 07.08.2018 and FIR No.192 dated 14.10.2015, both of Police Station City Kotkapura with the following directions: (i) The State Government shall constitute a Special Investigation Team of three senior IPS officers from the State of Punjab, which shall not include the respondent No.3, and which shall include at least one officer senior to the respondent No.3 in rank and designation, to conduct the investigation in the FIRs involved in the present petitions, i.e., FIR No.192 dated 14.10.2015 and FIR No.129 dated 07.08.2018; (ii) There shall be no interference from any quarter, internal or external, with this SIT concerning the investigation. This SIT shall not report to any State executive or police authority concerning the investigation in question. It shall report only to the concerned Magistrate, in accordance with law; (iii) The SIT so constituted by the State Government shall work jointly. All the members of the SIT shall put their signatures on all the proceedings of the investigation as a mark of the fact that they have agreed to the said investigation; (iv) Once constituted, that SIT shall not be changed by the State Government except in case of retirement, incapacity or death of the officer concerned; (v) The final report of investigation shall be filed jointly as a team, under signatures of all the members of the SIT, who shall also be cited as witnesses in the list as the investigating officers; (vi) The members of SIT shall not leak any part of the investigation before filing the final report before the concerned magistrate. They shall not interact with media concerning any aspect of investigation. Further, they shall not respond, directly or indirectly, to any doubt or opinion expressed by anyone from the public or the religious or the political establishments; (vii) The investigation of these FIRs shall be concluded as expeditiously as possible, preferably within a period of six months from the date of the constitution of SIT., In compliance with the aforesaid directions, a Special Investigation Team headed by Shri L.K. Yadav, Indian Police Service, Additional Director General of Police was constituted and the SIT was directed to adhere to the directions passed by the Punjab and Haryana High Court in the order dated 09.04.2021 passed in CWP No.17458 of 2019 and CWP No.17460 of 2019., The Special Investigation Team has filed a report under Section 173 of the Criminal Procedure Code indicating the petitioner as accused in the report along with others namely Parkash Singh Badal, Sumedh Singh Saini, Paramraj Singh Umranangal, Charanjit Sharma, Amar Singh Chahal, Sukhminder Singh Mann under Sections 307, 119, 109, 153, 295-A, 323, 324, 341, 427, 504, 34, 120-B of the Indian Penal Code and Section 27 of the Arms Act., With reference to the aforesaid facts, learned Senior Counsel for the petitioner submits that the petitioner, being the Home Minister at the relevant time, has been implicated in the conclusion drawn by the Special Investigation Team in the following manner: (a) Sukhbir Singh Badal intentionally abandoned law and order of the State on 12/10/2015 and departed for Gurgaon despite having knowledge of the third incident of sacrilege and the growing resentment amongst Sikh Sangat at Bargari and Kotkapura with an intention to use his absence as an excuse to evade responsibility of illegal actions of police under Sumedh Singh Saini; (b) Parkash Singh Badal aided, facilitated and encouraged Sumedh Singh Saini during the intervening night of 13-14/10/2015 to use excessive and illegal force against protestors despite having absolute knowledge of the peaceful conduct of protestors sitting at Kotkapura Chowk; (c) Paramraj Singh Umranangal, in furtherance of conspiracy with Sumedh Singh Saini, immediately after speaking with him, passed illegal orders to Charanjit Singh Sharma, then Senior Superintendent of Police, Moga, Amar Singh Chahal, then Deputy Inspector General, Ferozepur and Sukhminder Singh Mann, then Senior Superintendent of Police, Faridkot to abet excessive and illegal force against NITNEM reciting protestors; (d) Senior Superintendent of Police Charanjit Singh Sharma, Deputy Inspector General Amar Singh Chahal and Senior Superintendent of Police Sukhminder Singh Mann, as they then were, at the time of proceeding towards protestors during recitation of NITNEM Paath, had requisite knowledge that the conduct of protestors did not warrant use of force to remove them from the Chowk and had knowledge that use of force would hurt the religious sentiments of protestors; (e) Sumedh Singh Saini, Paramraj Singh Umranangal, SSP Charanjit Singh Sharma, DIG Amar Singh Chahal and SSP Sukhminder Singh Mann had requisite knowledge that their conduct in initiating use of force during NITNEM Paath was reckless and devoid of legality and in all probability acted as a provocation to peaceful protestors; (f) Sumedh Singh Saini, Paramraj Singh Umranangal, SSP Charanjit Singh Sharma, DIG Amar Singh Chahal and Sukhminder Singh Mann had requisite knowledge that no valid orders from the then duty magistrate were obtained despite his presence at Kotkapura Chowk before proceeding towards protestors during recitation., Perusal of the aforesaid conclusion would show that the petitioner has been implicated on the allegation of his abandoning the law and order situation on 12.10.2015 as he departed for Gurugram despite having knowledge of the third incident of sacrilege and the growing resentment amongst Sikh Sangat at Bargari and Kotkapura in order to use his absence as an excuse to evade responsibility of illegal actions of the police., Learned Senior Counsel further submits that the challan stands presented to the Punjab and Haryana High Court and there is no requirement of the investigating agency to seek custodial interrogation of the petitioner in any manner. The presence of the petitioner is only required for trial purposes and there is no remote chance of his fleeing from justice being a public figure and senior member of a political party. The father of the petitioner has already been granted indulgence by the Sessions Court by granting anticipatory bail in view of his old age and age‑related problems. The petitioner was Home Minister of the State at the relevant time and the presence of the petitioner has not been claimed at the spot. The allegation is that he departed for Gurugram in order to make an excuse to evade responsibility of illegal action of the police. Some allegations of mala fide are being alleged against the political set‑up and the police officers, who were at the helm of affairs at the relevant time., This Court is not in a position to appreciate all these allegations of mala fide at this juncture. The investigation conducted earlier has already been quashed by the Punjab and Haryana High Court with the issuance of certain directions for which a new Special Investigation Team was constituted. The petitioner was not arrayed as an accused in the earlier report under Section 173., Learned counsel for the petitioner further submits that the petitioner has now been arrayed at the whims of the present political set‑up, who had openly proclaimed on different platforms that the petitioner and others would not be spared. Again such type of accusation cannot be commented upon at this stage. Learned Senior Counsel has pointed out that there is a delay of more than seven years in implicating the petitioner and the same is based on vague material, without any legal evidence. The co‑accused have already been granted anticipatory bail in CRM-M No.26809 of 2019, CRM-M No.15262 of 2019, CRM-M No.27032 of 2019 and CRM-M No.10341 of 2021 by different orders. The allegation of culpable silence of Shri Parkash Singh Badal, the then Chief Minister and strategic absence of the petitioner cannot be presumed to be an act in connivance or conspiracy at this juncture and the same would be subject to material to be adduced by the prosecution during trial. The custody of the petitioner is not required for any custodial interrogation as the challan has already been submitted and now the petitioner has been called up to appear before the trial Court on 23.03.2023., Learned State counsel, appearing on the basis of advance notice, opposed the bail on the ground that the appearance of the petitioner in person is required in the Court. Learned counsel for the complainant also opposed the bail with reference to prosecution story by submitting about the gravity of the offence and chances of tampering with the prosecution evidence by the petitioner to scuttle the entire proceedings of the trial. Learned State counsel seeks time to file detailed status report in the present case., Notice of motion for 30.05.2023. At this stage, without meaning anything on the merits of the case, I deem it appropriate to defer the proceedings to await the status report of the respondent‑State and reply, if any, filed by the complainant. Till the next hearing, the petitioner is directed to appear before the trial Court within a period of 15 days from today. In the event of his appearance, the trial Court shall release the petitioner on interim bail subject to its satisfaction. The grant of interim order would not be construed to confer any equitable consideration in favour of the petitioner for ultimate decision of this case on merits.
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Shri Manohar son of Dnyaneshwar Pote, age 27 years, occupation Agriculture; The Collector, Jalna, Taluka and District Jalna; The Gramsevak, Grampanchayat Office Gundewadi, Taluka and District Jalna; Shri Sahebrao son of Balwanta Pote, age 72 years, occupation Agriculture, resident of Gundewadi, Taluka and District Jalna. Mr Aniruddha A Nimbalkar, Advocate for the petitioner. Mr G O Wattamwar, Additional Government Pleader for the respondent State. Mr D P Munde, Advocate for respondent No. 2. Mr S G Kawade, Advocate for respondent No. 3. Petition reserved on 02 February 2023. Pronounced on 24 February 2023., The petitioner is challenging the order dated 08 September 2022 passed by the respondent No. 1 Collector, Jalna under Section 7 read with Section 16 of the Maharashtra Village Panchayats Act, 1958 (the 1958 Act), which disqualified the petitioner as a member and Sarpanch of the village Panchayat, Gundewadi, Taluka and District Jalna, for not conducting at least four meetings of the Gram Sabha in the financial year. Brief facts leading to the filing of the petition are summarised as follows., The petitioner is the Sarpanch of Grampanchayat Gundewadi. Respondent No. 3 filed an application to the Collector, respondent No. 1, seeking disqualification of the petitioner under Section 7 read with Section 16 of the 1958 Act on 22 October 2021. The application contended that the petitioner had not attended any meeting of the Gram Sabha and therefore should be disqualified from holding the post of Sarpanch and from his membership of the village Panchayat for not holding four Gram Sabha meetings in the financial year. Pursuant to the application, the respondent No. 1 Collector, Jalna, issued a notice to the petitioner by letter dated 30 December 2021. On 11 May 2022, the respondent No. 2 Gramsevak, Village Panchayat Gundewadi, submitted his report to the office of the respondent No. 1 Collector. By a reply dated 14 June 2022, the petitioner stated that he had conducted Gram Sabha meetings but there was a delay in holding meetings at the beginning of the year due to the COVID-19 pandemic and various prohibitory orders passed under Section 144 of the Code of Criminal Procedure by the Collector, Jalna., By order dated 8 September 2022, the respondent No. 1 Collector, Jalna, disqualified the petitioner for violation of the mandate of Section 7 of the 1958 Act. The Collector held that the petitioner had conducted consecutive meetings in a short period without explanation and had not held one of the meetings at the beginning of the financial year within the first two months., The learned counsel for the petitioner submits that at the time of the election the COVID-19 pandemic was prevalent and that Government Circulars and prohibitory orders issued by the respondent No. 1 were in force. A Government Circular dated 12 May 2020, issued under the Disaster Management Act, directed that, in view of the pandemic, there shall be a stay on conducting Gram Sabha meetings as per Section 7 of the Maharashtra Village Panchayats Act. This circular was in force for one year and was subsequently extended. It is further contended that the respondent No. 1 Collector of Jalna District issued a prohibitory order under Section 144 from 5 April 2021 to 15 June 2021., The petitioner submits that he conducted the requisite minimum of four Gram Sabha meetings. The first Gram Sabha meeting was held on 3 September 2021. The second meeting was held on 16 November 2021. The third meeting was scheduled for 26 November 2021 but was postponed to 30 November 2021. The fourth Gram Sabha meeting was held online on 26 January 2022, in view of the direction issued by the Deputy Chief Executive Officer (Panchayat), Zilla Parishad, Jalna, to conduct the meeting online on that date., The petitioner further submits that he conducted the requisite number of meetings within the relevant financial year after the prohibitory orders were lifted. The 1958 Act does not prescribe the nature or manner in which the meetings must be conducted, except that there must not be a gap of more than four months between two meetings., The learned counsel further submits that even if it is held that the meetings were not conducted as per the provisions of the 1958 Act, unless there are mala fide reasons for non‑compliance, the petitioner cannot be removed from his office for a mere violation unless there are exceptional circumstances., The learned counsel for respondent No. 2, who supports the petitioner, submits that the notice issued by the Collector, Jalna, dated 30 December 2021, in the application filed by respondent No. 3 does not specify the charge and is bad in law, in view of the judgment of the Supreme Court of India in Sunil Daulat Patil v. State of Maharashtra & others, Writ Petition No. 3419 of 2023, decided on 4 December 2013, paragraphs 13 to 18, wherein it is held that charges must be specific; otherwise the notice and subsequent proceedings are bad in law., The learned counsel further submits that the requirement for a meeting to be held within the first two months of the financial year is stipulated in the Rules and not in the Act, and that violation of the Rule cannot lead to disqualification. The counsel relies upon the judgment in Pratibha Sanjay Hulle v. Additional Collector & others, reported in 2010 (4) Bom. C.R. 700, paragraphs 4, 5 and 6, wherein it is held that no penal action can be initiated for violation of rules where no provision exists in the statute., The learned counsel for respondent No. 3 submits that in the petitioner's reply to the Collector no dates of the meetings are mentioned, therefore no meetings were conducted by the petitioner and that the petitioner has created a bogus record to show that meetings were held, and consequently should be disqualified., The relevant provisions, Section 7(1) and Section 16 of the Maharashtra Village Panchayats Act, 1958, are as follows:\n\nSection 7 – Meetings of Gram Sabha. (1) There shall be held at least four meetings of the Gram Sabha every financial year on such date, time, place and manner as may be prescribed, and if the Sarpanch, or in his absence the Upa Sarpanch, fails without sufficient cause to hold any of such four meetings, he shall be disqualified from continuing as Sarpanch or, as the case may be, Upa Sarpanch or from being chosen as such for the remainder of the term of office of the members of the Panchayat; and the Secretary of the Panchayat shall also, if prima facie found responsible for any lapse in convening such meeting, be liable to be suspended and proceeded against for such other disciplinary action as provided under the relevant rules. The decision of the Collector on whether there was sufficient cause shall be final. Provided that the Sarpanch may, at any time of his own motion, and shall, on requisition of the Standing Committee, Panchayat Samiti, or Chief Executive Officer, call a meeting of the Gram Sabha within the period specified in the requisition; and on failure to do so, the Chief Executive Officer shall require the Block Development Officer to call the meeting within fifteen days from the date of such requirement. The meeting shall, notwithstanding the provisions of sub‑section (3), be presided over by him or any officer authorised by the Block Development Officer. Provided further that a period of not more than four months shall be allowed to elapse between two meetings of the Gram Sabha. Provided also that if the Sarpanch or Upa Sarpanch fails to call any such meeting within the specified period, the Secretary shall call the meeting and it shall be presumed that such meeting has been called with the concurrence of the Sarpanch or, as the case may be, Upa Sarpanch.\n\nSection 16 – Disability from continuing as members. (1) If any member of a Panchayat who is elected or appointed as such was subject to any of the disqualifications mentioned in Section 14 at the time of his election or appointment, or during the term for which he has been elected or appointed incurs any of the disqualifications mentioned in Section 14, he shall be disabled from continuing to be a member, and his office shall become vacant. (2) If any question whether a vacancy has occurred under this section is raised by the Collector suo motu or on an application made to him by any person, the Collector shall decide the question as far as possible within sixty days from the date of receipt of such application. Until the Collector decides the question, the member shall not be disabled under sub‑section (1) from continuing as a member. Any person aggrieved by the decision of the Collector may, within fifteen days from the date of such decision, appeal to the State Government, and the orders passed by the State Government in such appeal shall be final, provided that no order shall be passed under this sub‑section by the Collector against any member without giving him a reasonable opportunity of being heard., Having heard the rival submissions of both parties, it is noted that the requirement of Section 7 of the 1958 Act is that there must be at least four meetings in the financial year. In the present case, the financial year is 1 April 2021 to 31 March 2022. The petitioner was appointed as Sarpanch on 12 February 2021. The record indicates that the first Gram Sabha meeting was held on 3 September 2021. The Gram Sabha meeting dated 16 November 2021 was conducted as a special meeting. The next Gram Sabha meeting was scheduled for 26 November 2021; however, due to lack of requisite quorum, it was postponed and held on 30 November 2021. Subsequently, a meeting was held online on 26 January 2022 on account of the direction issued by the authority to hold an online meeting., As per the Government Circular dated 12 May 2020, issued under the Department of Revenue and Forest, Disaster Management, Relief and Rehabilitation, the meetings of Gram Sabha were directed to be stalled until further orders or for a period of one year., The learned counsel for the petitioner submitted that the order dated 12 May 2020 was again continued. The record shows that from 5 April 2021 the Collector, Jalna, issued orders under Section 144 of the Code of Criminal Procedure throughout Jalna District, which were extended up to 15 June 2021. The requirement of law under Section 7(1) of the 1958 Act is that there must be four meetings in the financial year and that there should not be a gap of more than four months between the meetings., The law on the subject, i.e., disqualification of an elected member for not complying with mandatory provisions, is dealt with in the cases of Ravi Yashwant Bhoir v. District Collector, Raigad and others, reported in [2012] 4 SCC 407; Gangabai Vithal Bade v. State of Maharashtra & others, reported in 2013 [3] Bom. C.R. 277; and Sunil Daulat Patil v. State of Maharashtra & others, Writ Petition No. 3419 of 2013, decided on 4 December 2013. The Honourable Supreme Court in Ravi Yashwant Bhoir v. District Collector, Raigad and others, [2012] 4 SCC 407, held at paragraphs 35, 36 and 37 as follows:\n\n35. The elected official is accountable to his electorate because he is elected by a large number of voters. His removal has serious repercussions as he is removed from the post and declared disqualified to contest elections for a further stipulated period, and it also deprives the people of his constituency of representation. Undoubtedly, the right to hold such a post is statutory and no person can claim an absolute or vested right to the post, but he cannot be removed without strictly adhering to the provisions provided by the legislature for his removal (see Jyoti Basu v. Debi Ghosal, Mohan Lal Tripathi v. District Magistrate, Rae Bareli and Ram Beti v. District Panchayat Raj Adhikari).\n\n36. In view of the above, the law is crystallised to the effect that an elected member can be removed only in exceptional circumstances, with strict adherence to statutory provisions, holding an enquiry, complying with principles of natural justice, and giving the incumbent an opportunity to defend himself, because removal casts a stigma and deprives the constituency of representation.\n\n37. A duly elected person is entitled to hold office for the term for which he has been elected and can be removed only on proved misconduct or any other procedure established under law such as a no‑confidence motion. The elected official is accountable to his electorate, and his removal has serious repercussions, including disqualification from contesting elections for a further stipulated period., In the case of Gangabai Vithal Bade v. State of Maharashtra & others, reported in 2013 [3] Bom. C.R. 277, the Court held at paragraphs 4 and 5 as follows: No doubt, the provisos of Section 7 provide various other requirements of Gram Sabha meetings. In addition to Section 7, there are rules prescribing the procedure for Gram Sabha meetings. Section 7 read with the rules indicates that a Sarpanch, or in his absence the Upa Sarpanch, should hold at least six Gram Sabha meetings every financial year. The proviso and rules provide, inter alia, that a maximum period of three months is permitted between two meetings of the Gram Sabha. Sub‑section (5) of Section 7 further provides that a meeting of women members of the Gram Sabha should be held before the regular meeting of the Gram Sabha. Additionally, the Bombay Village Panchayats Rules, 1959, enjoin a Sarpanch to hold the first meeting of the Gram Sabha of every financial year within two months from the commencement of the year and the second meeting in November each year; meetings are also to be held in August and January. In my view, since the rule regarding disqualification is mentioned in sub‑section (1) and is a penal provision, strict construction is required. Sub‑section (1) clearly states that only failure to hold six Gram Sabha meetings results in disqualification; other requirements are not included in sub‑section (1), so non‑observance of those does not attract the penal consequence of disqualification. In other words, if six meetings are held in a financial year, but they are not conducted as per the remaining provisions of Section 7 or the rules, a Sarpanch may not incur disqualification.\n\nThe second point that arose in this case is whether the petitioner/Sarpanch incurred disqualification for not giving notice of meetings. The learned Assistant Collector held that because of lack of notice, the petitioner incurred disqualification. The rules provide that the Sarpanch is responsible for giving seven days’ notice of each Gram Sabha meeting. It was observed that seven days’ notice was not given by the petitioner, and the Assistant Collector held that this lapse resulted in disqualification. I do not agree with this ruling. I rely only on sub‑section (1) of Section 7 to examine whether the petitioner incurred disqualification. As stated above, other lapses or infringements of other rules and provisos, in my view, will not result in disqualification. The petition, therefore, should succeed on merit, and the impugned order should be set aside., In Sunil Daulat Patil v. State of Maharashtra & others, Writ Petition No. 3419 of 2013, decided on 4 December 2013, the Court held at paragraphs 14 and 15:\n\n14. Upon careful perusal of the notice issued to the petitioner under Sections 7 and 36 of the Act, it is abundantly clear that there is no mention of any specific charge points that are required to be answered by the petitioner. The Supreme Court, in Pratibha Sanjay Hulle v. Additional Collector & others, reported in 2010 (4) Bom. C.R. 700, paragraph 36, held that to enable a Sarpanch to raise a proper defence and explain sufficient cause for his failure to perform any statutory function, he must be informed of the specific charges.\n\n15. In the facts of that case, the allegation was that the petitioner, i.e., the Sarpanch, did not perform his statutory obligations under Sections 7 and 36 of the Act. The Court, taking into consideration that specific charges were not communicated to the petitioner, held that the enquiry and the order passed against the petitioner were vitiated., Thus, from the judgments quoted above, it is clear that an elected member can be removed only in exceptional circumstances, must be informed of the specific charge against him, and must be given an opportunity to explain sufficient cause for his failure to perform a statutory duty. Mere non‑performance of the statutory duty does not disqualify the elected member unless he is unable to provide a satisfactory reason. Therefore, non‑performance of a statutory duty does not lead to automatic disqualification., In the instant case, the petitioner has held four Gram Sabha meetings after the lifting of the prohibitory orders under the Disaster Management Act and the prohibition under Section 144 of the Code of Criminal Procedure, and thus has not violated the provisions of Section 7 of the 1958 Act, which requires four meetings every financial year and that there should not be a gap of more than four months between two meetings. The petitioner indisputably held meetings on 3 September 2021, 16 November 2021, 30 November 2021, and an online meeting on 26 January 2022., In view of the fact that I hold that the petitioner has complied with Section 7 of the 1958 Act, it is not necessary to consider the issue of notice being served without specific charges., The Collector, by the impugned order, held that no reason was given for holding consecutive meetings; however, the Act does not prescribe a particular manner of holding meetings. The legal requirement is that in the financial year there must be at least four Gram Sabha meetings and that the gap between meetings should not exceed four months. Excluding the period of COVID-19, during which the State directed that Gram Sabha meetings not be held and various prohibitory orders were passed under Section 144 of the Code of Criminal Procedure restricting meetings up to 15 June 2021, the petitioner has complied with the provision of holding Gram Sabha meetings as contemplated in the Act., In view of this, the writ petition is allowed. The impugned order dated 8 September 2022 passed by respondent No. 1, the Collector, Jalna, is quashed and set aside., The rule is made absolute in the above terms. Accordingly, the writ petition is disposed of.
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Through: Dr. Amit Mishra, Advocate versus Respondent. Through: Ms. Hetu Arora Sethi, Assistant Solicitor for GNCTD with Mister Arjun Basra, Advocate for Respondent 1. Mister Kirtiman Singh, CGSC with Mister Waize Ali Noor, Ms. Kunjala Bhardwaj, Advocates for Respondent 2. CM APPL. 30709/2022 (Exemption) Allowed, subject to all just exceptions., The instant writ petition under Article 226 of the Constitution of India has been filed with the following prayers: 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; 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 the National Capital Territory of Delhi; 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 Medical Termination of Pregnancy Act, for a period of up to twenty‑four weeks; Order an immediate interim relief of stay during the course of proceedings., Issue notice, restricted only to Prayer C of the writ petition. Reply to be filed before the next date of hearing. List on 26.08.2022., This is an application filed by the Petitioner for grant of interim relief during the pendency of the writ petition. The Petitioner seeks interim relief for permission to terminate her pregnancy. The interim relief, if granted at this stage, could amount to granting relief sought for in Prayer A of the writ petition., The facts of the case reveal that the Petitioner, who is 25 years of age, is an unmarried woman and is carrying a single intrauterine pregnancy corresponding to a gestation age of 23 weeks and 5 days as on date. The 24‑week period of pregnancy, as stipulated under the Medical Termination of Pregnancy Act, 1971, shall be completing on 18.07.2022., It is stated that the Petitioner is a permanent resident of Manipur, but she is currently residing in New Delhi. Her pregnancy arises out of a consensual relationship and she cannot give birth to the child as she is an unmarried woman and her partner has refused to marry her. Giving birth out of wedlock will entail her ostracisation and cause her mental agony. Further, as she is solely a B.A. graduate who is non‑working, she will not be able to raise and handle the child. She is not mentally prepared to be a mother and continuing with the pregnancy will lead to grave physical and mental injury for her. It is further stated that if she continues with the pregnancy, it will not be possible for her to get married in the future because of her child and ensuing social stigma., Termination of certain pregnancies by registered medical practitioners is governed by the Medical Termination of Pregnancy Act, 1971 (hereinafter referred to as the Act). Section 3 of the Act provides for circumstances where pregnancies may be terminated by registered medical practitioners. The relevant portion of the Act reads as follows:\n\n3. When pregnancies may be terminated by registered medical practitioners.\n\n(1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act.\n\n(2) Subject to the provisions of sub‑section (4), a pregnancy may be terminated by a registered medical practitioner, (a) where the length of the pregnancy does not exceed twenty weeks, if such medical practitioner is, or (b) where the length of the pregnancy exceeds twenty weeks but does not exceed twenty‑four weeks in case of such category of woman as may be prescribed by rules made under this Act, if not less than two registered medical practitioners are, of the opinion, formed in good faith, that (i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or (ii) there is a substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality.\n\nExplanation 1. For the purposes of clause (a), where any pregnancy occurs as a result of failure of any device or method used by any woman or her partner for the purpose of limiting the number of children or preventing pregnancy, the anguish caused by such pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.\n\nExplanation 2. For the purposes of clauses (a) and (b), where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by the pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.\n\n(2A) The norms for the registered medical practitioner whose opinion is required for termination of pregnancy at different gestational ages shall be such as may be prescribed by rules made under this Act.\n\n(2B) The provisions of sub‑section (2) relating to the length of the pregnancy shall not apply to the termination of pregnancy by the medical practitioner where such termination is necessitated by the diagnosis of any substantial fetal abnormalities diagnosed by a Medical Board.\n\n(2C) Every State Government or Union territory, as the case may be, shall, by notification in the Official Gazette, constitute a Board to be called a Medical Board for the purposes of this Act to exercise such powers and functions as may be prescribed by rules made under this Act.\n\n(2D) The Medical Board shall consist of the following, namely: (a) a Gynaecologist; (b) a Paediatrician; (c) a Radiologist or Oncologist; and (d) such other number of members as may be notified in the Official Gazette by the State Government or Union territory, as the case may be.\n\n(3) In determining whether the continuance of a pregnancy would involve such risk of injury to the health as is mentioned in sub‑section (2), account may be taken of the pregnant woman's actual or reasonably foreseeable environment.\n\n(4) (a) No pregnancy of a woman who has not attained the age of eighteen years, or who having attained the age of eighteen years is a mentally ill person, shall be terminated except with the written consent of her guardian. (b) Save as otherwise provided in clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman., A perusal of Section 3(2)(a) of the Act provides that the medical practitioner can terminate the pregnancy, provided the pregnancy does not exceed twenty weeks. Section 3(2)(b) of the Act provides for termination in circumstances where the pregnancy exceeds twenty weeks but does not exceed twenty‑four weeks., A perusal of Section 3(2)(b) of the Act provides that the said sub‑section is applicable only to those women who are covered under the Medical Termination of Pregnancy Rules, 2003. Rule 3B of the Medical Termination of Pregnancy Rules, 2003, which permits termination of pregnancy up to twenty‑four weeks, reads as follows:\n\n3‑B. Women eligible for termination of pregnancy up to twenty‑four weeks.\n\nThe following categories of women shall be considered eligible for termination of pregnancy under clause (b) of sub‑section (2) Section 3 of the Act, for a period of up to twenty‑four weeks, namely: (a) survivors of sexual assault or rape or incest; (b) minors; (c) change of marital status during the ongoing pregnancy (widowhood and divorce); (d) women with physical disabilities [major disability as per criteria laid down under the Rights of Persons with Disabilities Act, 2016 (49 of 2016)]; (e) mentally ill women including mental retardation; (f) fetal malformation that has a substantial risk of being incompatible with life or, if the child is born, may suffer from such physical or mental abnormalities to be seriously handicapped; and (g) women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the Government., The Petitioner, who is an unmarried woman and whose pregnancy arises out of a consensual relationship, is clearly not covered by any of the clauses under the Medical Termination of Pregnancy Rules, 2003. Therefore, Section 3(2)(b) of the Act is not applicable to the facts of this case., Learned counsel for the Petitioner states that Rule 3B of the Medical Termination of Pregnancy Rules, 2003 is violative of Article 14 of the Constitution of India, 1950, inasmuch as it excludes an unmarried woman. Whether such rule is valid or not can be decided only after the said rule is held ultra vires, for which purpose notice has to be issued in the writ petition and has been done so by the Delhi High Court., As of today, Rule 3B of the Medical Termination of Pregnancy Rules, 2003 stands, and the Delhi High Court, while exercising its power under Article 226 of the Constitution of India, 1950, cannot go beyond the statute. Granting interim relief now would amount to allowing the writ petition itself., In view of the above, the Delhi High Court is not inclined to entertain the interim application at this stage.
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Lyka Labs Limited and another, applicants; The State of Maharashtra and another, respondents; Md. Shoaib and another, petitioners; Devendra Dang, petitioner; Venugopal N. Dhoot, applicant; Shadab Khan, petitioner; Rajiv Kantilal Gogri and another, petitioners; Siddharth Mehta and another, respondents; K. Raghavendra Rao, petitioner; Prithviraj Sayajirao Deshmukh and others, applicants; Shri Gurudatta Sugars Marketing Pvt. Ltd. and another, respondents; Kaluvoy Sreenivasulu Reddy, petitioner; Tridhaatu Asset Holdings LLP and others, petitioners; Ramkrishnan Subramanian and another, respondents; Nikhil P. Thampi and another, petitioners., This is a batch of matters before me wherein the same common question of law arises for decision. Accordingly, I propose, as has been agreed to by all the learned counsel appearing for the parties, to decide only the principal question of law posed for decision and leave the individual cases to be decided accordingly. Hence, I am relieved of the need of noticing facts of individual cases. The questions are: (i) Whether the signatory of the cheque authorized by the company is the drawer and whether such signatory could be directed to pay interim compensation in terms of section 143A of the Negotiable Instruments Act, 1881, living aside the company; (ii) Whether a deposit of a minimum sum of twenty percent of the fine or compensation is necessary under section 148 of the Negotiable Instruments Act in an appeal filed by persons other than the drawer against the conviction and sentence under section 138 of the Negotiable Instruments Act., Mr. Ponda, learned senior advocate, submitted that under section 143A only the drawer of the cheque is required to pay interim compensation and no one else. To attract liability under section 138, the cheque must be drawn from the account of the drawer. The word 'drawer' cannot be construed to mean a signatory of a cheque from whose account the cheque is not drawn. In the case of a company, the signatory does not become the drawer because the cheque is issued from the company's account. Sections 30 and 31 of the Act bind the drawer to compensate the holder in case of dishonour; the liability rests with the drawer company, not with an individual authorised signatory, whether a director or not. The power to direct interim compensation under section 143A is of a draconian nature and must be strictly construed. Relying on the Apex Court decision in P.J. Agro Tech Ltd. v. Water Base Ltd., a criminal provision must be strictly construed and it would be unjust to impose liability on a person not covered by the provision. Section 143A(5) makes the interim compensation recoverable as a fine under section 421 of the Code of Criminal Procedure, 1973, which can be recovered by attachment, sale of immovable property or by a warrant to the Collector. There is no concept of joint or several liability under section 143A; the direction of interim compensation must be made only against the drawer. The role of the drawer is central to the scheme of section 138; the offence is completed only on failure to comply with the legal notice served on the drawer. Section 141 widens the dragnet of the offence under section 138 to include persons vicariously liable when the principal offender is a company, but the word 'drawer' is restricted to the principal offender and does not extend to individuals under section 143A. The notice under proviso (b) of section 138 must be issued to the company, not to the authorised signatory. The observations in Aneeta Hada clarify that when a company is prosecuted, only persons mentioned in the other category may be vicariously liable, and the drawer cannot be interpreted as the authorised signatory., Mr. Sharan Jagtiani, learned senior advocate, submitted that the authorised signatory of a company becomes the drawer for the purposes of sections 138 and 143A of the Negotiable Instruments Act because he is authorised to operate the account maintained by the company. He relied on the Apex Court decision in Aneeta Hada v. Godfather Travels & Tours Private Limited, which held that the authorised signatory becomes the drawer as contemplated by section 7 of the Act, and that this law remains good law and must be followed by the High Court and subordinate courts. He argued that the Supreme Court's obiter dicta are binding and that the High Court must follow the view of the larger bench of the Supreme Court. While interpreting section 138, the Apex Court warned against interpretations that render the provision ineffective. The purpose of section 143A is to provide interim relief to payees of dishonoured cheques, and the definition of drawer includes the act of making and preparing a cheque, which justifies treating the authorised signatory as the drawer. Sections 138 and 143A are prospective and can be invoked where the offence under section 138 was committed after the introduction of sections 143A and 148. The moratorium provisions of section 14 of the Insolvency and Bankruptcy Code apply only to the corporate debtor, while natural persons mentioned in section 141 continue to be statutorily liable., In rejoinder, Mr. Ponda argued that the observations in paragraph 20 of the Aneeta Hada judgment are not ratio decidendi but merely casual observations and not even obiter dictum. He contended that the observations must be read together with paragraphs 19, 39, 40 and 48 of the same judgment. No argument was raised regarding whether the authorised signatory is the drawer. He relied on the facts of N. Harihara Krishnan, which are similar to the present case, and cited paragraphs 10, 11.1, 11.3, 19 and 20 to assert that the Apex Court held that a person does not become a drawer merely by signing the cheque. The word \every\ in paragraph 22 includes any person who signs the cheque, and none of these persons become the drawer. He warned that accepting the respondent's submission that the authorised signatory becomes the drawer would run counter to the Apex Court judgments in Aneeta Hada, N. Harihara Krishnan and S.M.S. Pharmaceuticals Ltd., In rejoinder, Mr. Sharan Jagtiani submitted that excluding an authorised signatory from the expression \drawer\ would defeat the main intendment of sections 143A and 148, which were introduced for the benefit of payees of dishonoured cheques. He explained that while proceedings under section 138 are pending, the payee has the right to claim part of the dishonoured cheque's sum through interim compensation under section 143A, and during the pendency of an appeal, section 148 requires the appellant to deposit part of the amount. He noted that the discretion of the learned Magistrate trying the offence under section 138 can be exercised to pass suitable orders concerning salaried employees who are authorised signatories. He relied on the Apex Court decision in Ms. Eera through Dr. Manjula Krippendorf v. State (NCT of Delhi) & Anr., which emphasized purposive interpretation of criminal statutes to achieve social welfare objectives., Mr. Niranjan Mundargi, learned advocate for the petitioner in Writ Petition No. 2644 of 2020, submitted that the term \drawer\ includes only a legal person. A natural person or individual, i.e., an authorised signatory, differs from a legal person. To satisfy the ingredients of section 138, the authorised signatory must personally maintain an account, and the dishonoured cheque must be issued from such account. Section 141 of the Act is not attracted in relation to the payment of compensation under section 143A of the Negotiable Instruments Act., Mr. Ansh Karnawat submitted that the word \drawer\ in section 143A has a clear and unambiguous meaning and has been consistently held to include only principal offenders, not vicariously liable persons. He argued that a purposive interpretation can be adopted only if a plain reading creates an absurd or unworkable consequence. He emphasized that the objective of the Negotiable Instruments (Amendment) Act, 2018 was to make the drawer of the cheque pay interim compensation and not to extend vicarious liability at the pre‑trial stage. Referring to the Lok Sabha debates, he noted that the liability was proposed to be created upon the \issuer\ of the cheque., A learned advocate invited the Court's attention to sections 14, 95 and 96 of the Insolvency and Bankruptcy Code, 2016, arguing that when section 143A was brought into force, the legislature was aware that drawer companies could be made to pay interim compensation despite the moratorium under section 14 of the Code while undergoing corporate insolvency resolution. He relied on the Apex Court decisions in Keshavji Ravji & Co. v. Commissioner of Income Tax, Sri Ram Saha v. State of West Bengal & Ors., and State of Madras v. Gannon Dunkerley and Co. (Madras) Ltd. He submitted that the word \drawer\ is used in the singular sense and cannot be interpreted in the plural. He also contended that the concept of interim relief as a step towards final relief is a civil law concept and does not arise on a plain reading of section 143A., An advocate for the petitioner in Writ Petition No. 4455 of 2022 adopted the submissions of Mr. Ponda and submitted that section 141(2) becomes applicable only after the offence under section 138 is proved., Mr. Niranjan Mundargi, learned advocate for the petitioner in Writ Petition No. 3443 of 2022, submitted that section 148 of the Negotiable Instruments Act applies only to appeals filed by the drawer and not to appeals filed by persons other than the drawer., Ms. Y.N. Katpitia, counsel for respondent No. 2 in Writ Petition No. 3443 of 2022, submitted that the petitioner had been held guilty under section 138 of the Negotiable Instruments Act read with section 141(1)(2).
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According to her, the term drawer used in section 148 includes all persons responsible for drawing the dishonoured cheque and includes each and every person held guilty who, at the time of the offence committed, was in charge and was responsible to the company for the conduct of its business. It also includes every person who is proved to have consented to or connived for the offence or to whom the offence is attributable. Absolving the authorized signatory of a company from the purview of section 148 of the Negotiable Instruments Act will completely defeat the purpose of section 148., Placing reliance on the judgment of the Supreme Court of India in the case of Surinder Singh Deswal @ Col. S. S. vs. Virender Gandhi reported in Criminal Appeal Numbers 1936-1963 of 2019, she submitted that the Supreme Court of India had directed the accused to deposit a minimum of twenty percent of the fine and compensation awarded by the Trial Court. She submitted that if the petitioner's interpretation of section 148 is accepted, it would amply that in no case of dishonoured cheque, suspension of sentence of imprisonment can be ordered by the Appellate Court on condition of deposit and every order of suspension of a sentence need to be passed without deposit of any amount., According to her, section 148 applies to all appellants filing an appeal against conviction under section 138 of the Negotiable Instruments Act. She emphasised the word 'appellant' in sub‑section (1) of section 148 to urge that if the legislature intended to restrict the ambit of section 148 of the Negotiable Instruments Act to only the drawer against the conviction, the legislature would have provided so in the section instead of using the word 'appellant'., She submitted that in the facts of the case, there are only two directors: the petitioner and his wife. In the cross‑examination, the petitioner admitted that he was in charge of the company's affairs and that his wife did not participate in any company activity. He also admitted his signature on the cheque; therefore, the Sessions Judge rightly directed the petitioner to deposit an amount of twenty percent., She submitted that, in the facts of the case, the petitioner accepted the liability on behalf of the company and admitted that he had issued the cheque in question, which showed that the petitioner was playing an active role in day‑to‑day business. In conclusion, she submitted that the legislature's intention behind enacting section 148 of the Negotiable Instruments Act is to curb dilatory tactics of unscrupulous drawers of dishonoured cheques, which would be frustrating if the interpretation made by the petitioner is accepted., Mr. Jatin P. Shah, learned advocate for respondent No.2 in Writ Petition No.886 of 2022, invited my attention to the provisions in Chapter 17 of the Negotiable Instruments Act. He took me through the development of law in relation to the interpretation of section 138, which initially was restricted to only two categories referred to in section 138, namely (i) funds insufficient and (ii) exceed arrangement. He submitted that thereafter the Supreme Court of India, by adopting liberal interpretation, made provisions of section 138 applicable to all contingencies of dishonour of cheque. He submitted that if the petitioner's interpretation is accepted, it will give an advantage to unscrupulous drawers who would not sign on the cheque to avoid liability under section 143A of the Negotiable Instruments Act., He submitted that the conjoint effect of section 143A, read with section 141, makes the authorized signatory of the cheque as regards the account maintained by the company liable for payment of interim compensation. To bolster his submissions, he relied on the following judgments: NEPC Micon Ltd v. Magma Leasing Ltd reported in 1999 (1) Supreme Court Cases (Criminal) 524, Laxmi Dye Chem v. State of Gujarat reported in 2012 (13) Supreme Court Cases 375, Union of India v. Filip Tiago De Gama reported in 1990 (1) Supreme Court Cases 277, Ballarpur Industries Limited v. Union of India reported in 1997 All India Reporter (Delhi) 1, Dilip S. Dhanukar v. Kotak Mahindra Ltd. reported in 2007 (6) Supreme Court Cases 528, Surinder Deswal v. Virender Gandhi (first) reported All India Reporter 2019 Supreme Court 2956 and G. J. Raja v. Tejraj Surana reported All India Reporter 2019 Supreme Court 15., The rest of the advocates appearing in respective matters adopted submissions by Mr. Ponda and Mr. Jagtiani respectively., I have given my anxious consideration to the rival submissions., As the controversy revolves around the construction of the provisions contained in sections 7, 30, 31, 138, 143A and 148 of the Negotiable Instruments Act, the relevant provisions deserve extraction as under:, Section 7. Drawer – Drawee. The maker of a bill of exchange or cheque is called the drawer; the person thereby directed to pay is called the drawee., Section 30. Liability of drawer. The drawer of a bill of exchange or cheque is bound in case of dishonour by the drawee or acceptor thereof, to compensate the holder, provided due notice of dishonour has been given to, or received by, the drawer as hereinafter provided., Section 31. Liability of drawee of cheque. The drawee of a cheque having sufficient funds of the drawer in his hands properly applicable to the payment of such cheque must pay the cheque when duly required so to do, and, in default of such payment, must compensate the drawer for any loss or damage caused by such default., Section 138. Dishonour of cheque for insufficiency, etc., of funds in the account. Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because the amount of money standing to the credit of that account is insufficient to honour the cheque or because it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheque within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation. For the purposes of this section, debt or other liability means a legally enforceable debt or other liability., Section 141. Offences by companies. (1) If the person committing an offence under Section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub‑section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence. (Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this chapter.) (2) Notwithstanding anything contained in sub‑section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation. For the purposes of this section, (a) company means any body corporate and includes a firm or other association of individuals; and (b) director, in relation to a firm, means a partner in the firm., Section 143A. Power to direct interim compensation. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, the court trying an offence under section 138 may order the drawer of the cheque to pay interim compensation to the complainant (a) in a summary trial or a summons case, where he pleads not guilty to the accusation made in the complaint; and (b) in any other case, upon framing of charge. (2) The interim compensation under sub‑section (1) shall not exceed twenty percent of the amount of the cheque. (3) The interim compensation shall be paid within sixty days from the date of the order under sub‑section (1), or within such further period not exceeding thirty days as may be directed by the court on sufficient cause being shown by the drawer of the cheque. (4) If the drawer of the cheque is acquitted, the court shall direct the complainant to repay to the drawer the amount of interim compensation, with interest at the bank rate as published by the Reserve Bank of India, prevalent at the beginning of the relevant financial years, within sixty days from the date of the order, or within such further period not exceeding thirty days as may be directed by the court on sufficient cause being shown by the complainant. (5) The interim compensation payable under this section may be recovered as if it were a fine under section 421 of the Code of Criminal Procedure, 1973. (6) The amount of fine imposed under section 138 or the amount of compensation awarded under section 357 of the Code of Criminal Procedure, 1973 shall be reduced by the amount paid or recovered as interim compensation under this section., Section 148. Power of Appellate Court to order payment pending appeal against conviction. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, in an appeal by the drawer against conviction under Section 138, the Appellate Court may order the appellant to deposit such sum which shall be a minimum of twenty percent of the fine or compensation awarded by the trial Court: Provided that the amount payable under this sub‑section shall be in addition to any interim compensation paid by the appellant under Section 143A. (2) The amount referred to in sub‑section (1) shall be deposited within sixty days from the date of the order, or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the appellant. (3) The Appellate Court may direct the release of the amount deposited by the appellant to the complainant at any time during the pendency of the appeal: Provided that if the appellant is acquitted, the Court shall direct the complainant to repay to the appellant the amount so released, with interest at the bank rate as published by the Reserve Bank of India, prevalent at the beginning of the relevant financial year, within sixty days from the date of the order, or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the complainant., As per Section 7 of the Negotiable Instruments Act the maker of a bill of exchange or cheque is called the drawer; the person thereby directed to pay is called the drawee. Drawer is a person who draws an instrument in writing. He is a person who draws a bill of exchange or cheque. Sections 138, 143A and 148 fall under Chapter XVII of the Act, entitled 'All penalties in case of dishonour of certain cheques for insufficiency of funds in the accounts'. In the context of the question involved, a plain reading of section 138 of the Negotiable Instruments Act makes it evident that the said section is controlled by the expression 'where in a cheque drawn by a person on an account maintained by him'. To attract liability under section 138, it is one of the preconditions that a cheque must be drawn on an account maintained by the drawer. The person contemplated in the section can be an individual or legal entity. The principal liability is imposed on the drawer. On a conjoint reading of sections 30, 31 and 138, it is evident that the obligation to honour the cheque is on the drawer. Reading section 138 of the Negotiable Instruments Act makes it clear that the duty to maintain sufficient funds on the date of presentation of the cheque is cast on the drawer. On receipt of demand notice, section 31 creates the right to receive compensation from the drawee bank if the drawer has sufficient funds in the account maintained by him and the drawee bank fails to honour the cheque. Such compensation needs to be paid only to the drawer. Unless demand notice is served on the drawer, the offence under section 138 of the said Act is not complete. It is evident that the drawer of the cheque is the principal offender who alone is liable for the offence under section 138 of the Negotiable Instruments Act. The drawer of the cheque is deemed to have committed an offence when the cheque drawn by him is returned unpaid on the specified grounds, subject to fulfilment of conditions precedent and conditions subsequent., The general rule in cases involving criminal liability is against vicarious liability. No one is to be held criminally liable for an act of another. This general rule is subject to the exception because of specific provisions in the statutes extending liability to others. Section 141 is an instance of a specific provision which, in case of an offence under Section 138 committed by a company, extends criminal liability for the dishonour of a cheque to officers of a company. Section 141 contains conditions that must be satisfied before the liability can be extended to officers of the company. Liability arises on account of conduct, act or omission on the part of a person and not merely on account of holding an office or a position in a company. An exception to sole liability of the drawer is provided in section 141 of the Act, which makes the persons other than the drawer liable for the offence under section 138 of the said Act, but only if the drawer is a company or firm or association of individuals and in such an eventuality all such persons who at the time when the offence was committed, were in charge or responsible for the conduct of the business of such company or firm or association of individuals. The criminal liability for the offence by a company under section 138 of the Act is fastened vicariously on the persons referred to in sub‑section (1) of section 141 by virtue of a legal fiction. To widen the dragnet of an offence under section 138, which is committed by the drawer only, the persons other than drawer are made vicariously liable. It is well settled that all other persons, such as signatories of the cheque, managing directors, and in‑charge directors, are brought into the dragnet on the touchstone of vicarious liability under section 141 of the said act., Having considered the scheme of relevant provisions of the Negotiable Instruments Act, to answer the question framed, it is necessary to understand the essential difference between legal entity or legal person and an individual, as in the facts of cases involved, cheques are signed by individuals as authorized signatories. A legal entity has rights and responsibilities and the capacity to sue and be sued under the law. Legal persons, being the artificial creations of the law, may be as many kinds as the law pleases. They include corporations or companies. A legal person is any subject matter other than a human being to which the law attributes personality. A juristic person is a body of persons, a corporation or company, a partnership or other legal entity recognised by law as the subject of rights and duties, also called an artificial person. An entity, such as a company, is created by law and given certain legal rights and duties of a human being. It is therefore evident that authorized signatory being an individual cannot be equated with or termed as a legal entity created under a statute., According to petitioners sections 143A and 148 need to be interpreted in plain language; whereas respondents submit that both provisions need to be interpreted by applying the rule of purposive construction., For appreciating submissions on interpretation of statute, well‑set‑tled rule of interpretation of a statute needs to be borne in mind that when the language of a provision is plain and unambiguous and capable of only one meaning, there is no question of the construction of a statute, as the provision speaks for itself. The natural and ordinary meaning of words should only be departed from if it is shown that the legal context in which the words are used requires a different meaning. In that case, it would not be open to the courts to adopt any other hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the act. When the provision's plain meaning produces injustice, absurdity or contradiction of the statutory object, the language may be interpreted to avoid such disadvantage. When the legislature chooses appropriate words to express its intention, such intention must be employed so long as this does not result in absurdity., It is also a settled rule of construction that all the constituent parts of a statute are to be taken together to ascertain the legislative intent. Each word, phrase or sentence is to be considered in the light of the general purpose of the act itself. Words and phrases occurring in a statute are to be taken not in an isolated or detached manner dissociated from the context but are to be read together and construed in the light of the purpose and object of the act itself. The meanings of words and expressions used in an Act must take their colour from the context in which they appear. The principle that the statute must be read as a whole equally applies to different parts of the same section., The language of section 143A allows for a plain interpretation to the exclusion of all other rules of interpretation. The word 'drawer' in section 143A has a clear and unambiguous meaning. The legislature's intention as to who should pay interim compensation is clear in plain and simple language in section 143A. The plain interpretation of the expression 'Drawer' in section 143A gets support from the intent and purpose of the provision and the act. The Statement of Object and Reasons of the Negotiable Instruments Act (Amendment) Act, 2018 is gathered from the corresponding Bill of 2017, 'It is proposed to amend the said act with a view to address the issue of undue delay in final resolution of cheque dishonour cases so as to provide relief to payees of dishonoured cheques and to discourage frivolous and unnecessary litigation which would save time and money. The proposed amendments will strengthen the credibility of the cheques.', The objective is to make the payee of the cheque pay interim compensation to provide relief to drawees from undue delay in the final resolution of the dishonoured cheque. The lawmakers' intention is also clear from the recorded minutes of Lok Sabha Debates conducted when the Bill was introduced and passed. In that regard, reference must be made to the opening remarks of the parliamentarian who tabled the Bill, who referred to the proposed liability to be created upon the 'issuer' of the cheque. Pertinently, a reference is made only to section 138 without referring to section 141 (on vicarious liability). The opening remarks are reproduced below: What we have done in this that a new section 143(a) of the Negotiable Instruments Act has been inserted and under section 138, Courts have been given the power to direct the issuer to make an interim payment of twenty percent of the cheque amount to the drawer. The issuer can pay the interim compensation within sixty days and it can be extended up to thirty days. If the issuer is acquitted, the court shall direct to repay to the complainant the amount of interim compensation, with interest at the bank rate as published by the Reserve Bank of India and prevalent at the beginning of the relevant financial year. Therefore, it appears that the legislature's purpose was to provide interim relief to the drawee by directing the drawer to pay temporary compensation. This compensation was made payable by the cheque's drawer or issuer. By specifically fastening the liability on the drawer/issuer, the legislature excluded anyone else from being made liable to pay interim compensation. The plain language section 143A clearly spells out the intention of the parliament by resorting to the golden rule of interpretation—that a statute must be read plainly to arrive at its meaning. Principal offender under Section 138 in case cheque issued by the company is the drawer (company). Drawer alone would have been the offender thereunder if the Act did not contain section 141. By virtue of Section 141 of the Act that penal liability under Section 138 is cast on other persons connected with the company. Therefore there is no need to interpret the word 'drawer' to include authorized signatory., A reference can be made to the pronouncement of the Supreme Court of India in Sri Ram Saba v. State of West Bengal [(2004) 11 SCC 497], the Supreme Court held as follows: It is well‑set‑tled principle of interpretation that a statute is to be interpreted on its plain reading; in the absence of any doubt or difficulty arising out of such reading of a statute defeating or frustrating the object or purpose of an enactment, it must be read and understood by its plain reading. However, in case of any difficulty or doubt arising in interpreting a provision of an enactment, courts will interpret such a provision keeping in mind the objects sought to be achieved and the purpose intended to be served by such a provision so as to advance the cause for which the enactment is brought into force. If two interpretations are possible, the one which promotes or favours the object of the act and purpose it serves, is to be preferred. At any rate, in the guise of purposive interpretation, the courts cannot rewrite a statute. A purposive interpretation may permit a reading of the provision consistent with the purpose and object of the act but the courts cannot legislate and enact the provision either creating or taking away substantial rights by stretching or straining a piece of legislation., A reference can be made to the pronouncement of the Supreme Court of India in Keshavji Ravji and Co. and Others v. Commissioner of Income Tax [(1990) 2 SCC 231]. In this case, the question was whether gross interest payment should be deducted rather than net interest payment made by the partnership firm to its partners. Justice Venkatachaliah, writing for a bench of three judges, gave the following observations, which are not fact‑specific but of a general expository nature: Section 40(b) seeks to prevent the evasion of tax by diversion of the profits of a firm; by the legislature expedience adopted to achieve that objective requires to be given effect on its own language. As long as there is no ambiguity in the statutory language, resort to any interpretative process to unfold the legislature intent become impermissible. The supposed intention of the legislature cannot then be appealed to to whittle down the statutory language which is otherwise unambiguous. If the intendment is not in the words used, it is nowhere else., In paragraph 12, Justice Venkatachaliah went on to quote Thomas M. Cooley in Law of Taxation, Vol. 2: Artificial rules of construction have probably found more favour with the courts than they ever deserved. Their application in legal controversies has oftentimes been pushed to an extreme which has defeated the plain and manifest purpose in enacting the laws. Penal laws have sometimes had all their meaning construed away and in remedial laws, remedies have been found which the legislature never intended to give. Something akin to this has befallen the revenue laws., In paragraph 15, Justice Venkatachaliah cited a principle stated by the Judicial Committee of the Privy Council in H. H. Ruckmaboye v. Lullobhoy Mottichund, calling it a well‑recognised principle: it is, therefore, of considerable importance to ascertain what has been deemed to be the legal import and meaning of them, because, of it shall appear that they have long been used, in a sense which may not improperly be called technical, and have been judicially construed to have a certain meaning, and have been adopted by the legislature in that sense, long prior to the statute. The rule of construction of statutes will require that the words in the statute should be construed according to the sense in which they had been so previously used, although that sense may vary from strict literal meaning of them., The additional principle of interpretation which supports the view that the expression drawer does not include authorized signatory is that when a term has achieved a technical connotation over the years of its usage, the connotation must not be disturbed. The expression 'drawer' has obtained a fixed and legal connotation over the years on account of (i) the legislature never having changed said definition nor the context in which the expression is used, (ii) the judicial pronouncements having consistently held drawer to include only the principal offender and not those who are vicariously liable. Such legal connotation to the expression drawer in section 143A strengthens from the clear, unambiguous meaning that the expression drawer has always had. Such interpretation gets further support from the stage at which liability on the drawer to pay interim compensation gets triggered—the stage is recording the plea. At this stage, the Magistrate cannot go beyond the averments contained in the complaint. This test is analogous material to be considered by the magistrate at the stage of issuance of summons. At the stage of recording the plea, to get out of liability under section 143A, the onus of proof to show innocence would be on the drawer, which he may only satisfactorily discharge with leading evidence. Such a consequence might have weighed with the legislature while enacting the Amendment Act of 2018 by choosing not to employ words that could have created a vicarious liability under section 143A., In this regard, a reference must also be made to a judgment by the Supreme Court of India in the State of Madras v. Gannon Dunkerley and Co. (Madras) Ltd. AIR 1958 SC 560, where the true meaning of the word sale as used in Entry 48 and Entry 54 was examined at length. It was observed after considering the earlier cases of the Supreme Court that the expression sale of goods in Entry 48 cannot be construed in its popular sense and that it must be interpreted in its legal sense. Tracing from the Roman Law of emptio venditio, the Supreme Court considered the common law of England relating to sales which had developed very much on the lines of the Roman Law in insisting on an agreement between parties and price as essential elements of a contract of sale of goods and referring to the codification of the law in England by the Sale of Goods Act, 1893, and the Indian Sale of Goods Act, 1930, Venkatarama Aiyyar J. explained the general rule of construction that words used in statutes must be taken in their legal sense and observed, the ratio of the rule of interpretation that words of legal import occurring in a statute should be construed in their legal sense is that those words have, in law, acquired a definite and precise sense, and that, accordingly, the legislature must be taken to have intended that they should be understood in that sense. In interpreting an expression used in a legal sense, therefore, we have only to ascertain the precise connotation which it possesses in law., According to the respondents, amended provisions of section 143A and section 148 need to be interpreted, keeping in mind the rule of purposive interpretation.
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id_1524
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To consider the submission, the rule laid down in Heydon's case, also known as purposive construction, must be noted. It states that when material words are capable of bearing two or more constructions, the most firmly established rule for the construction of such words applies to all statutes in general, whether penal or beneficial, restrictive or enlarging of the common law. Even if a purposive interpretation were to be given, it would have to be to cure mischief. The mischief or purpose sought to be addressed by the legislature is to provide interim compensation to the holder of the cheque. That purpose has already been served by imposing liability on the drawer company. Additionally, reading sections 143A and 148, as suggested by respondents, would constrain the Supreme Court of India to read something in the statute that is not provided for or permissible., To interpret the expression \drawer\ to include an authorised signatory who may be a shareholder or director, it is necessary to refer to settled principles of company law. The true legal position regarding the character of a corporation or a company is that the entity of the corporation is entirely separate from that of its shareholders; it bears its own name and seal, its assets are separate and distinct from those of its members, its creditors cannot obtain satisfaction from the assets of its members, and the liability of the members or shareholders is limited to the capital invested by them. This position has been well established since the decision in Salomon v. Salomon and Co. [1897] A.C. 22 and is a recognised principle of common law. However, the doctrine that a corporation is a separate legal entity has been subjected to certain exceptions by the application of the fiction that the veil of the corporation can be lifted and its substance examined. The judicial approach to cracking open the corporate shell is cautious and circumspect, and the veil is lifted only when the legislative provision justifies such a course, for example to prevent fraud or to defeat trading with the enemy., Under company law, the company's liability is generally not transferred onto the directors. As per the Companies Act 2013, a company has a separate legal identity. The directors and members act as representatives and exist in a fiduciary relationship. Directors serve as agents and are not personally liable for the acts of the company, unless they act beyond their powers or duties, in which case the corporate veil may be lifted. The corporate veil states that the company's identity is separate from the directors' and members' identities. Directors can be personally liable for breach of fiduciary duty or fraud under the Companies Act 2013. After the magistrate records a plea, an enquiry as to breach of fiduciary duty or fraud is not contemplated by the legislature while inserting section 143A, as it would defeat the purpose of granting immediate interim compensation to avoid delay in disposal of cheque dishonour cases., Another argument of legal impossibility, such as section 14 of the Insolvency and Bankruptcy Code, which prevents a drawer company from being compelled to pay interim compensation, derives no support to include authorised signatories within the expression \drawer\. Section 14 creates a legal impossibility that the Parliament was fully aware of when enacting sections 143A and 148 of the Negotiable Instruments Act in 2018, after the Insolvency and Bankruptcy Code, 2016. At the time of bringing section 143A into force, the legislature knew that drawer companies could not be made to pay interim compensation because of the moratorium imposed by section 14 of the Insolvency and Bankruptcy Code on companies undergoing a Corporate Insolvency Resolution Process. The legislature was also aware that natural persons who may have drawn the cheque could not be made to pay interim compensation under section 143A because of the moratorium imposed by sections 95 and 96 of the Insolvency and Bankruptcy Code. Despite this knowledge, the legislature chose language that limits liability to the drawer/issuer and does not extend it vicariously or severally onto any other person. Therefore, the words of the enactment are clearly intended to be limited to drawers, whether natural persons or companies., The petitioners' interpretation that the expression \drawer\ does not include an authorised signatory is supported by the well‑established canon of construction that the same word used in different parts of the same statute must have the same meaning, unless the context indicates otherwise. The objection to the respondents' argument that \drawer\ should include an authorised signatory is that it violates the fundamental principle of interpretation which prohibits cutting out inter‑related portions of the same statute, tearing them from their context and construing them as stripped of their relation to each other or to the whole. When the word \drawer\ has been defined under the Negotiable Instruments Act, its meaning would not vary when the same word is used at more than one place in the same statute, as otherwise it would defeat the object of the definitive section. The repugnancy of a definition arises only when the definition does not agree with the subject or context; any action not in conformity with the definition will not make it repugnant to the provision containing the term. When the application of the definition makes a provision unworkable and otiose, it can be said that the definition does not apply because of a contrary context. [See Indian Immigration Trust Board of Natal v. Govindaswamy, AIR 1920 PC 114; Vanguard Fire and General Insurance Co. Ltd. v. Fraser & Ross, AIR 1960 SC 971; Special Officer and Competent Authority Urban Land Ceilings Hyderabad v. P.S. Rao, AIR 2000 SC 843]., In Central Bank of India v. Ravindra [(2002) 1 SCC 367], the Constitution Bench considered the meaning of the phrases \the principal sum adjudged\ and \such principal sum\ as occurring in Section 34 of the Code of Civil Procedure as amended by the Code of Civil Procedure (Amendment) Act, 1956. The Court observed that ordinarily a word or expression used at several places in one enactment should be assigned the same meaning to avoid a clash between two meanings. It should not be lightly assumed that Parliament gave with one hand what it took away with the other. While it is possible for the same word to have different meanings in different contexts, this is an exception that can be resorted to only when there is repugnancy in the subject or context. The Supreme Court has consistently held that when the legislature uses the same word or expression in different parts of the same statute, there is a presumption that the word is used in the same sense throughout (see Justice G.P. Singh, Principles of Statutory Interpretation, 7th Ed., 1999). The House of Lords in Farrell v. Alexander [(1976) 2 All ER 721] held that when the draftsman uses the same word or phrase in similar contexts, he must be presumed to intend it to bear the same meaning in each place., Mr. Jagtiani, learned senior advocate, submitted that the power to direct interim compensation is also conferred under section 141 of the Negotiable Instruments Act, as the signatory of a cheque is vicariously liable for punishment. The liability of the authorised signatory of the company for an offence under section 138 of the Negotiable Instruments Act was examined before the Supreme Court of India in SMS Pharma. The Supreme Court, after considering section 141, held that the person signing a dishonoured cheque is clearly responsible for the act and will be covered under sub‑section (2) of section 141; therefore, no special averment is necessary to make him liable., The consistent view of the Supreme Court of India while interpreting section 138, which contains the expression \drawer\, is that the person signing the cheque, i.e., the signatory of a dishonoured cheque, is responsible for the act of dishonour under sub‑section (2) of section 141. The director in charge of conducting the company's business at the relevant time is also liable, but only under section 141(1). The expression \drawer\ in section 138 has not been interpreted to include either the signatory of the cheque or the signatory director. Despite the expression \drawer\ occurring in section 138, both the signatory of a cheque and the director in charge have been held vicariously liable under section 141., Liability for the punishment of persons specified in section 141(2) is triggered only after it is proved that the offence was committed with their consent, connivance, or attributable to their neglect. Power to direct interim compensation under section 143A is exercisable after recording a plea of the accused. Based on specific averments in the complaint and complying with the ingredients of section 141(2), persons specified in sub‑section (2) of section 141 can be proceeded against or punished. In the absence of specific power conferred under section 141, the Supreme Court of India cannot direct persons other than the \drawer\ to pay interim compensation, particularly when section 143A confers such specific power on the courts. This interpretation is supported by the well‑settled principle that 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. The Privy Council applied this principle in Nazir Ahmad v. King‑Emperor, AIR 1936 PC 253 and State of Uttar Pradesh v. Singhara Singh, AIR 1964 SC 358, while considering the provision of section 164 of the Code of Criminal Procedure., In the recent judgment of Noor Mohammed v. Khurram Pasha (2022) 9 SCC 23, the Supreme Court of India considered the power of the magistrate in a complaint under section 138 of the Negotiable Instruments Act to take away the right of cross‑examination of the accused for non‑payment of interim compensation under section 143A. The Court held that the expression \interim compensation\ is payable under section 143A and that sub‑section (1) empowers the court to direct the accused to pay such compensation, sub‑section (2) limits the amount to not exceed 20% of the cheque amount, sub‑section (3) stipulates the period for payment, sub‑section (4) deals with repayment with interest if the drawer is acquitted, and sub‑section (5) states that the interim compensation can be recovered as if it were a fine. The remedy for failure to pay interim compensation as directed by the court is provided for by the legislature, and the method and modality of recovery are clearly delineated. It is a well‑known principle that if a statute prescribes a method for the exercise of power, other methods are not acceptable., The principle that a statute’s prescribed method must be followed was reiterated by the Privy Council in Nazir Ahmad v. King‑Emperor, which quoted the rule from Taylor v. Taylor (1875) LR 1 Ch D 426. A Bench of three judges of the Supreme Court of India made similar observations in State of U.P. v. Singhara Singh, AIR 1964 SC 358, stating that where a power is given to do an act and the method is laid down, it necessarily prohibits doing the act in any other manner. The provision concerned does not contemplate that an accused who fails to deposit interim compensation could be deprived of the right to cross‑examine witnesses; such an order would be beyond the powers conferred upon the court., Therefore, it is not possible to accept the respondents' submission that power to direct interim compensation can be traced under section 141 in addition to section 143A of the Negotiable Instruments Act., It is necessary to clarify the nature of binding precedent. Every decision contains (a) findings of material facts, (b) statements of the principles of law applicable to the legal problems disclosed by the facts, and (c) a judgment based on the combined effect of the above. The ratio decidendi, i.e., the reason or principle on which the question before a court has been decided, is the only part that is binding as precedent. Observations that are not part of the ratio are not binding. Under Article 141 of the Constitution of India, the law declared by the Supreme Court of India is binding on all courts, and clear statements of principle, even if obiter, have binding force. However, when a question is neither raised nor discussed in a Supreme Court judgment, it is difficult to deduce any binding principle by implication., In Aneka Hada, the Supreme Court of India considered whether a complaint under section 138 read with section 141 of the Negotiable Instruments Act was maintainable against a director or authorised signatory of a company without joining the company as an accused. The Court held in the negative, observing that commission of the offence by the company is an express condition precedent to attract vicarious liability of another. The words \as well as the company\ in section 141 make it clear that when the company can be prosecuted, only the persons mentioned in the other categories can be vicariously liable, subject to the averments in the petition and proof thereof. Thus, prosecution of other persons under section 138 is permissible only when the company is named as an accused., In N. Harihara Krishnan, the Supreme Court of India considered a case where a cheque was drawn by a private company and signed by the appellant in his capacity as director. The Court held that the offence under section 138 can be committed only by the drawer of the cheque. Every person signing a cheque on behalf of the company on whose account the cheque is drawn does not become the drawer; such a signatory is only a person duly authorised to sign the cheque on behalf of the drawer. The observations made by the larger bench of the Supreme Court of India in this case are binding on this Court, and therefore the respondents' submission that \authorised signatory\ should be included within the expression \drawer\ under sections 143A and 148 of the Negotiable Instruments Act cannot be accepted., Having held that the expression \drawer\ in section 143A does not include the authorised signatory of a company, amended section 148 must be interpreted accordingly. The plain language of section 148 makes clear that the Appellate Court is granted the power to direct deposit of a minimum sum of 20% of the fine or compensation awarded by the Trial Court \in an appeal by the drawer\. Since the drawer does not include an authorised signatory, section 148 confers this power only in an appeal filed by the drawer against a conviction under section 138. The proviso to section 148 clarifies that such payment shall be in addition to the amount payable under section 143A. Section 148 starts with a non‑obstante clause having an overriding effect on the provisions of the Code of Criminal Procedure, 1973., However, in an appeal filed by persons other than a drawer, the Appellate Court has power under section 389 of the Code of Criminal Procedure to direct deposit of an amount in an appeal under section 148 of the Negotiable Instruments Act filed by persons other than the \drawer\ against a conviction under section 138, while considering an application for suspension of conviction or sentence., For the reasons stated above, the questions are answered as follows: (i) The signatory of the cheque, authorised by the company, is not the drawer within the meaning of section 143A of the Negotiable Instruments Act and cannot be directed to pay interim compensation under that section. (ii) In an appeal under section 148 filed by persons other than the drawer against a conviction under section 138, a deposit of a minimum sum of 20% of the fine or compensation is not necessary; however, the Appellate Court may direct deposit of compensation while suspending the sentence under section 389 of the Code of Criminal Procedure., Individual petitions will be decided in accordance with the answers set out in the preceding paragraph.
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id_1525
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Between: Tallapelli Kamalamma and another appellant Tallapelli Jannu Ludia Bloosom Respondent. Counsel for Revision Petitioner: Muralidhar Reddy Katram. Counsel for Respondents: M. Saleem. Cases referred: Second Appeal No. 89 of 2005 decided on 16.03.2023; (2014) 13 Supreme Court Cases 468; (2016) 13 Supreme Court Cases 124; AIR 1963 Supreme Court 1526; (2022) 7 Supreme Court Cases 247. Interim Application No. 1 of 2023. Application Suit No. 360 of 2020. The present appeal is directed against the judgment and decree dated 27.12.2019 in Original Suit No. 86 of 2009 on the file of learned VII Additional District Judge, Warangal, whereby the suit of the plaintiff for partition of suit schedule A to C properties was preliminarily decreed., For the sake of convenience, hereinafter, the parties will be referred as per their array before the learned VII Additional District Judge, Warangal., The brief facts of the case, which necessitated the defendants to file the present appeal, are as follows: The plaintiff is the daughter of defendant No.1 and sister of defendant No.2 and they belong to the Christian community. The plaintiff filed suit for partition of suit schedule A to C properties into three equal shares and allotted one such share to her with metes and bounds. During the pendency of the suit, defendant No.1 passed away; consequently the plaint was amended and the relief was also amended to the extent of seeking division of the plaint schedule properties into two shares and to allot one such share to the plaintiff. Late Tallapelli Corelius Samuel, who was the father of the plaintiff and defendant No.2 and husband of defendant No.1, was the original owner of the plaint schedule properties and he died intestate leaving behind the plaintiff and defendants No.1 and 2 as his legal heirs. After the death of Tallapelli Corelius Samuel, the plaintiff and defendants were in joint and constructive possession of the plaint schedule properties. Thereafter, disputes arose between the parties; the plaintiff approached the defendants for partition of the plaint schedule properties but the defendants refused. Despite giving a legal notice on 13.08.2009, the defendants did not come forward for partition., Defendants filed their separate written statements, however, the substance in both statements is the same. It was contended that Tallapelli Corelius Samuel executed a Will dated 25.05.1977 bequeathing the plaint schedule properties in favour of defendant No.2; after the death of Tallapelli Corelius Samuel, defendant No.2 became owner and possessor of the suit schedule properties. It is further alleged that Tallapelli Corelius Samuel allowed the plaintiff to enjoy the property of Ac.1.10 guntas after his demise and later the plaintiff, together with the defendants, sold the land to Mathyas Reddy and the sale proceeds were taken by the plaintiff. It was further contended that defendant No.2, with his hard earnings, constructed a house in plaint A schedule property for which the Municipal Corporation assigned house bearing No.2-6-1554. At the time of the plaintiff's marriage, considerable amounts were given to her by her father; consequently the plaintiff is not entitled to any right or share in the plaint schedule properties and therefore prayed for dismissal of the suit., During the course of trial, Plaintiff Witnesses 1 and 2 were examined and Exhibits A1 to A11 were marked on behalf of the plaintiff; Defendant Witnesses 1 to 4 were examined on behalf of the defendants, however, no documentary evidence was adduced. After considering the rival contentions, oral and documentary evidence, the trial Court decreed the suit preliminarily. Aggrieved by the same, defendant No.2 has preferred the present appeal., Heard both sides and perused the record including the grounds of appeal., The first and foremost contention of the appellant/defendant No.2 is that the plaintiff admitted that she was allowed to enjoy agricultural land admeasuring Ac.1.10 guntas after the demise of Tallapelli Corelius Samuel and thereafter the mesne profits and sale consideration were enjoyed by the plaintiff, indicating that there was an understanding that the plaintiff was given her share at the time of marriage. In Mrs. Tezinah Martins David v. Mr. Miguel Guarda Rosario Martins @ Michael Rosario Martins the High Court of Bombay at Goa observed: 86. The evidence on record shows that the joint family property was purported to be exclusively usurped by the brothers to exclude the sisters. Merely because one of the sisters deposed in favour of the brothers does not mean that the issue of family arrangement or oral partition was duly proved. There is no evidence about providing a sufficient dowry to the daughters of the house. However, even if it is assumed that some dowry was provided to the daughters, that does not mean that the daughters cease to have any right in the family property. The rights of the daughters could not have been extinguished in the manner which they have been attempted to be extinguished by the brothers, post the father's demise., Even in the case on hand, defendant No.2 has not specifically mentioned how much dowry was paid at the time of the plaintiff's marriage. It is not the case of defendant No.2 that an oral partition took place between the parties prior to filing of the suit. Even assuming for the sake of argument that the dowry given at the time of the plaintiff's marriage is deemed to be her share in the property, what prompted defendant No.2 to allow the plaintiff to receive the sale proceeds of the alleged sale of the property admeasuring Ac.1.10 guntas? If the plaintiff was allotted her share in the family properties at the time of her marriage, there is no necessity for defendant No.2 to permit the plaintiff to retain the sale proceeds. However, as seen from the plaint averments and the chief affidavit of the plaintiff as Plaintiff Witness 1, it is clearly mentioned that out of the sale proceeds of the above‑said land the house bearing No.2-6-1554 was constructed. No evidence is adduced by defendant No.2 to establish that the plaintiff was allowed to retain the sale proceeds. Hence, the contention of defendant No.2 that the plaintiff was allowed to retain the proceeds is unsustainable., It is further contention of the appellant/defendant No.2 that, as per the claim of the plaintiff, the suit schedule properties are ancestral properties, and therefore she and defendant No.2 have equal right. The plaintiff was marked Exhibit A10, i.e., certified copy of the plaint in Original Suit No. 44 of 2011 on the file of learned III Additional District Judge, Warangal, wherein a suit for partition claiming ancestral properties was filed and in that suit defendant No.2 is shown as plaintiff No.3, who sought his share, however, the plaintiff did not come forward to implead herself. It is pertinent to note that the plaintiff has not stated in any of her statements that the suit schedule properties are ancestral; she stated that the suit schedule properties were acquired by the father of the plaintiff and defendant No.2. The plaintiff clearly stated that all the properties were self‑acquired properties of her deceased father. Regarding the contention that the plaintiff did not come forward to implead herself in Original Suit No. 44 of 2011, it is pertinent to note that in a suit for partition all necessary parties must be impleaded, and no effective order can be passed in the absence of such parties. If the plaintiff is a necessary and proper party, defendant No.2, being dominus litis in Original Suit No. 44 of 2011, ought to have made efforts to implead the plaintiff as one of the parties, especially when the cardinal principle of filing a partition suit is to add all coparceners/interested persons contesting for a right in the property. Whether the plaintiff has a share in the ancestral property can be decided in that suit, not in the present suit. Moreover, defendant No.2 admitted in his written statement at paragraph No.13: \In fact, as contended by the plaintiff, all the schedule properties are self‑acquisition of late Sri T.C. Samuel, who by dint of hard work earned money and purchased and as such to his domain the deceased allowed defendant No.2 to enjoy the properties left by him.\ Thus, the contention that the suit schedule properties are ancestral is untenable. The plaintiff is seeking partition of the self‑acquired properties of her deceased father, not ancestral properties., It is the contention of defendant No.2 that, as per the claim of the plaintiff, a part of plaint A schedule property was already sold to a third party, who is a necessary party, but was not made a party to the suit and the suit ought to have been filed for the remaining properties. A perusal of the plaint discloses that the father of the plaintiff purchased 700 square yards during his lifetime; 60 square yards were lost under road widening in the northern side and 60 square yards in the southern side were sold by defendant No.2, leaving 620 square yards with six rooms. The suit schedule discloses that plaint A schedule property is the house constructed on the remaining 620 square yards. Thus, the plaintiff has shown the house constructed on the remaining 620 square yards as plaint A schedule property., The other contention of the appellant is that the plaintiff approached the High Court of India with unclean hands and her intention was only to claim properties owned by her brother by taking advantage of an unwritten partition, especially when the husband of the plaintiff is a lawyer (Plaintiff Witness 2). It is noted that nowhere in the written statement does defendant No.2 state anything about an oral or unwritten partition; instead, he is pleading the High Court of India to imagine that there was an oral partition by contending in the grounds of appeal that permitting the plaintiff to retain the sale proceeds of Ac.1.10 guntas indicates an understanding that the plaintiff was given her share at the time of marriage. Since defendant No.2 has not specifically pleaded that there was an oral partition, the High Court of India cannot conclude that an oral partition existed prior to the filing of the suit, particularly in the absence of any evidence on behalf of defendant No.2 to substantiate his contention., The judgment and decree passed by the Additional District Court, Warangal with regard to the suit schedule properties are the only properties that are mutated in the appellant's name; the other properties sold to third parties were not made part of the suit. Hence, the partial partition claim is not sought as a matter of right but appears to be pursued to wreck personal retribution against the defendant. Though defendant No.2 contended that the other properties sold to third parties were not part of the suit, he failed to furnish details of any such properties., During the pendency of this appeal, defendant No.2 filed Interim Application No.1 of 2023 under Order XLI Rule 27 read with Section 151 of the Code of Civil Procedure to receive a Will Deed dated 21.04.2010 as additional document and thereby remand the matter to the trial Court for further evidence. It is alleged that a person informed him that the mother of defendant No.2, i.e., defendant No.1, executed a registered Will Deed in 2010 and that the person is one of the witnesses. He obtained a certified copy of the Will Deed from the Sub‑Registrar Office, Warangal. Counsel for defendant No.2 contended that the registered Will Deed was executed by the mother of the appellant vide document No.14/2010 dated 21.04.2010, a year before her death, and that the will stated the plaintiff was given her share at the time of her marriage in 1971 and that certain sum, gold and other belongings were given at the time of her marriage, leaving her with no claim over intestate properties of T.C. Samuel. Counsel further stated that he was not aware of the document during the pendency of the appeal and learned of it through the witness. It is surprising that the suit was filed in 2009 and defendant No.1 is alleged to have executed the Will Deed in 2010 and died in 2011, a year after execution of the alleged Will Deed. Initially, defendants No.1 and 2 filed a joint written statement on 17.09.2010; subsequently, defendant No.2 was ordered by the trial Court to file a separate written statement after allowing the petition under Order IX Rule 7 of the Code of Civil Procedure. If defendant No.1 had executed the alleged Will Deed, it could have been mentioned in the joint written statement or in the separate statement filed by defendant No.1, especially since the Will Deed was dated 21.04.2010, prior to filing of the joint statement. A perusal of the certified copy of the Will Deed shows no details of attesting witnesses except signatures. Defendant No.2 did not mention the name of the witness who informed him about the alleged Will Deed. Further, the plaintiff did not state in her affidavit when she became aware of the alleged Will Deed., In support of his contentions, counsel for defendant No.2 relied upon a decision in State of Karnataka and another v. K.C. Subramanya and others, wherein the Supreme Court observed that under Order 41 Rule 27(1)(aa) of the Code of Civil Procedure a party may seek liberty to produce additional evidence at the appellate stage only if such evidence could not be produced at trial despite due diligence and was not within his knowledge. Similarly, counsel relied upon decisions in Union of India v. K.V. Lakshman and others; K. Venkataramaiah v. A. Seetharama Reddy and others; Sopanrao and another v. Syed Mehmood and others; and Sanjay Kumar Singh v. State of Jharkhand, supporting the contention that the alleged Will Deed should be received as additional evidence. There is no doubt about the principles laid down in those decisions. However, the plaintiff filed a detailed counter to Interim Application No.1 of 2023, contending that defendant No.1 filed a written statement on 26.10.2010 in which she admitted that her late husband Tallapalli Cornelius Samuel died intestate in 1977 and the properties held by him are liable to be partitioned among his successors. The plaintiff specifically contended that the alleged Will Deed is a sham and fabricated document as it does not form part of the written statement filed by defendant No.1 before the trial Court, and that defendant No.2 failed to show that, despite due diligence, he could not produce the alleged Will Deed before the trial Court., One of the contentions raised by defendant No.2 before the trial Court is that his father executed a Will dated 25.05.1977 bequeathing the plaint schedule properties in his favour and that he attempted to produce the alleged Will Deed before the trial Court at a belated stage, but the trial Court dismissed the application. Aggrieved, defendant No.2 approached the High Court, which also dismissed the trial Court's order. Thus, the Will Deed alleged to have been executed by the father of the plaintiff and defendant No.2 was not marked because defendant No.2 failed to file it within time. Moreover, the trial Court observed that defendant No.2 failed to suggest witnesses examined on behalf of the plaintiff regarding the execution of the alleged Will Deed by the father. The trial Court also observed that, despite interim orders passed in Interim Application No.1275 of 2009 restraining defendants from alienating the suit schedule property, defendant No.2 executed Exhibit A11 by settling 100 square yards to his wife in the plaint B schedule property, attracting the doctrine of lis pendens. Consequently, defendant No.2 was not diligent in producing the alleged Will Deeds executed by his parents, and his conduct in producing the documents belatedly before the High Court of India creates suspicion regarding his contentions., As discussed above, if the alleged Will Deeds were executed by the parents of defendant No.2, references to those Will Deeds would have been made by either party, particularly defendants No.1 and 2, in their respective written statements. Moreover, by relying on the additional evidence, the appellant/defendant No.2 is requesting the High Court of India to remand the matter to the trial Court for further evidence. It appears that the appellant/defendant No.2 intends to drag the proceedings unnecessarily. Defendant No.2 failed to establish that, despite due diligence, he could not produce the alleged Will Deed executed by his mother; therefore, the interlocutory application filed by the appellant, Interim Application No.1 of 2023, is liable to be dismissed, and accordingly, it is dismissed., There is no dispute regarding the relationship between the parties. Defendant No.2 relied upon oral evidence of Defendant Witnesses 1 to 4 and presented no documentary evidence. The plaintiff was examined herself and her husband as Plaintiff Witnesses 1 and 2 and exhibited Exhibits A1 to A11. Defendant No.2 contended that the suit schedule properties are ancestral properties and that, even as per the alleged Will Deed executed by defendant No.1 and relied upon by defendant No.2, they are self‑acquired properties of the husband of defendant No.1. Even for the sake of argument, if the alleged Will Deed is genuine, it states that because the plaintiff had a good financial status, she is not entitled to any share in the self‑acquired properties of her father. Merely because the plaintiff has a good financial status, her right to seek a share in the self‑acquired properties of her father cannot be denied. It is surprising that defendant No.2 intended to rely upon two Will Deeds executed by his father and mother., On one hand, as per the Will Deed executed by the husband of defendant No.1, defendant No.2 is entitled to the plaint schedule properties; on the other hand, as per the Will Deed executed by defendant No.1, the self‑acquired properties of the husband of defendant No.1 devolve upon defendants No.1 and 2, and after the death of defendant No.1, her share will devolve upon defendant No.2. Thus, there are two contradictory versions in the evidence upon which defendant No.2 intends to rely., Thus, viewed from any angle, this High Court of India is of the considered view that the learned VII Additional District Judge, Warangal has passed the impugned judgment in proper perspective by considering all relevant aspects and there is no necessity to interfere with it. Hence, the appeal is devoid of any merits and is liable to be dismissed., In the result, Interim Application No.1 of 2023 as well as the appeal is dismissed. There shall be no order as to costs. As a sequel, pending miscellaneous applications, if any, shall stand closed.
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Lt. Col. Prasad Purohit, about 44 years old, serving in the Indian Armed Forces, resident of 76/21, Susmriti, Shantishila Society, Law College Road, Erandawana, Pune-411004, is the appellant (Original Accused No.9). The National Investigation Agency, Ministry of Home Affairs, Shastri Building, New Delhi, is the first respondent. The State of Maharashtra is the second respondent. Dr. Neela Gokhale, assisted by Mr. Sagar Bhandare, Mr. Viral Babar, Ms. Manjiri Parasnis and Mr. Malhar Kadam, appear for the appellant. Mr. Sandesh Patil, assisted by Mr. Chintan Shah, appear for the National Investigation Agency. Mrs. S.D. Shinde, assisted by A.P. P., appear for the State of Maharashtra. Mr. Shahid Nadeem, assisted by Ms. Kritika Agrawal, Mr. Qurban Hussain, Ms. Aafrin Khan and Mr. Mateen Shaikh, appear for the intervenor. The appeal is reserved on 29 November 2022., The present appeal is filed under Section 21(1) of the National Investigation Agency Act, 2008. The appellant, Original Accused No.9, challenges the order dated 27 December 2017 passed in National Investigation Agency Special Case No. 01 of 2016 by the learned Special Judge (under the Maharashtra Control of Organised Crime Act and the National Investigation Agency Act), Greater Mumbai, which rejected his application under Section 227 of the Criminal Procedure Code for discharge from the case., Exhibit 4247 was filed by the appellant under Section 227 of the Criminal Procedure Code read with Section 11 of the Maharashtra Control of Organised Crime Act for discharge. Exhibit 4698 was filed by the appellant under Section 227 of the Criminal Procedure Code read with Section 197 of the Criminal Procedure Code for discharge under Section 302/307 of the Indian Penal Code and Sections 3, 4, 5, 6 of the Explosives Act. The Special Judge partially allowed the applications, discharging the appellant from offences punishable under Sections 3(1)(i), 3(1)(ii), 3(2), 3(4), 3(5) of the Maharashtra Control of Organised Crime Act, Sections 17, 20 and 23 of the Unlawful Activities (Prevention) Act, and Sections 3, 5 and 25 of the Arms Act. The Special Judge directed that charges be framed against the appellant and accused Nos. 1, 4 to 6, 10 and 11 for the offences specified in paragraph 7 of the operative part of the order., The learned counsel for the appellant, Dr. Neela Gokhale, appeared along with Mr. Sandesh Patil for the National Investigation Agency, Mrs. S.D. Shinde for the State of Maharashtra and Mr. Shahid Nadeem for the intervenor. The court perused the synopsis and list of dates submitted by the appellant’s counsel and the written submissions of the intervenor, and examined the entire record produced before it., Dr. Gokhale submitted that the appellant challenges the order solely on the ground that sanction under Section 197(2) of the Criminal Procedure Code is required to prosecute him, as he was a public servant performing his lawful duty at the time of the alleged offence. She therefore requested that the issue of sanction be decided in the present appeal., By an order dated 21 August 2017, the appellant was granted bail by the Supreme Court of India. By a subsequent order dated 20 April 2018 in Special Leave Petition Nos. 611-613 of 2018, the Supreme Court directed that its observations on bail not be ignored but be considered while framing charges, and that the Special Judge and the High Court should decide the matter on their own merits without being influenced by the observations on sanction in paragraph 19 of the 21 August 2017 order., The prosecution case, as set out in the second supplementary report of the National Investigation Agency, states that on 29 September 2008 at about 21:35 hours a bomb exploded opposite Shakeel Goods Transport Company, between Anjuman Chowk and Bhiku Chowk in Malegaon. The explosion was caused by an improvised explosive device fitted to an LML Freedom motorcycle bearing registration number MH-15/P-4572. Six persons were killed and about 101 persons sustained serious to grievous injuries, with loss of public property in the vicinity. The blast occurred during the month of Ramadan and just before the Navratri festival, indicating an intent to terrorise the public, cause loss of life and property, disrupt essential services, create communal discord and endanger internal security of the State. A crime bearing Crime Report No. 130 of 2008 was registered at Azad Nagar Police Station, Malegaon on 30 September 2008 under Sections 302, 307, 326, 324, 427, 153-A and 120-B of the Indian Penal Code read with Sections 3, 4, 5 and 6 of the Explosive Substances Act, 1908, Sections 3, 5 and 25 of the Arms Act and Sections 15, 16, 17, 18, 20 and 23 of the Unlawful Activities (Prevention) Act, 1967 (amended 2004). The Maharashtra Police invoked the Unlawful Activities (Prevention) Act on 18 October 2008 and the Anti‑Terrorism Squad, Mumbai applied the Maharashtra Control of Organised Crime Act on 29 November 2008. The investigation was taken over by the National Investigation Agency, New Delhi, pursuant to an order of the Government of India, Ministry of Home Affairs (Internal Security‑I Division), dated 1 April 2011. The Anti‑Terrorism Squad submitted a first chargesheet on 20 January 2009 against eleven arrested and three wanted accused persons, which was registered as Maharashtra Control of Organised Crime Special Case No. 01 of 2009. During further investigation, a wanted accused, Praveen Venkatesh Takkalki (also known as Pravin Mutalik and Pradeep V. Naik), was arrested on 1 February 2011 and a supplementary chargesheet against him was filed on 21 April 2011. The Government of India, Ministry of Home Affairs, directed the NIA to continue investigation on 1 April 2011. The NIA, after interrogating the accused in judicial custody and examining the evidence, submitted its chargesheet before the Special Judge., The chargesheet alleges that the appellant, Lt. Col. Prasad Purohit, floated the Abhinav Bharat organisation in 2006 despite being a serving commissioned officer, which is contrary to service rules. He and other accused collected large sums of money for the organisation and directed the funds to procure weapons and explosives for unlawful activities, making him a key member of the criminal conspiracy. He organised and conducted various meetings with co‑accused to further the conspiracy. On 25‑26 January 2008, in a secret meeting at Faridabad, he proposed a separate constitution for a Hindu Rashtra with a Bhagwa flag, discussed forming a Central Hindu Government (Aryawart) in exile in Israel and Thailand, and spoke of taking revenge for alleged Muslim atrocities against Hindus. He participated in a meeting of Abhinav Bharat held on 15‑16 September 2008 at Bhosla Military School, Nashik, where Ramesh Upadhyay was elected working president and was empowered to retrieve weapons from accused Sudhakar Dhar Dwivedi. The appellant collected large amounts of funds, including Rs 2.5 lakhs paid to a builder in Nashik through accused Ajay Rahirkar for booking a house. A forensic laboratory report on the laptop of Sudhakar Dhar Dwivedi revealed voice samples of the appellant, Sudhakar Dhar Dwivedi and Ramesh Upadhyay, which were deemed positive. Intercepted conversations show the appellant advising Ramesh Upadhyay to procure another SIM card and urging meticulous conduct, indicating guilt and active participation. On 24 October 2008, after the arrest of Pragya Singh Thakur, the appellant sent an SMS to Sameer Kulkarni stating that the Anti‑Terrorism Squad had entered his house in Pune and instructed him to delete his numbers and leave Bhopal, confirming his complicity. A witness (PW‑55) later re‑examined his statement recorded on 18 November 2008 under Section 164 of the Criminal Procedure Code, alleging that he was forced to give a confessional statement under threat from the Anti‑Terrorism Squad and that the appellant had supplied weapons, RDX, and had confessed to involvement in the Samjhauta Express blast and the Malegaon blast. Despite shortcomings in the evidence, the court found sufficient material to prosecute the appellant under various statutes., Dr. Gokhale argued that the appellant, as an employee of the Armed Forces and specifically attached to the Military Intelligence Department, requires sanction for prosecution under Section 197 of the Criminal Procedure Code. She noted that a Court of Inquiry was instituted in April 2009 to investigate the allegations, and it concluded its proceedings in 2012, exonerating the appellant. She contended that most witnesses before the Court of Inquiry supported the appellant’s claim that his actions were performed in discharge of his duties as an intelligence officer and that his superiors were kept informed. She further pointed out that the National Investigation Agency had dropped statements of several witnesses as inadmissible and had only charged the appellant as per the chargesheet. The appellant remains in service and continues to receive his salary. Dr. Gokhale relied on three Supreme Court decisions—Prashant Bharati v. State (NCT of Delhi) (2013) 9 SCC 293, Devinder Singh & Ors. v. State of Punjab (2016) 12 SCC 87, and D. Devraja v. Owais Sabeer Hussain (2020) SCC OnLine SC 517—to argue that there is a reasonable nexus between the appellant’s acts and his official duties, and that he acted in good faith, making sanction under Section 197 necessary. She also cited confidential letters dated 16 January 2008, 2 April 2018 and 8 February 2019, which she said indicated that the appellant was deputed to collect intelligence on Abhinav Bharat and had submitted his inputs to higher authorities., Mr. Sandesh Patil, learned Special Public Prosecutor for the National Investigation Agency, submitted that the Special Judge has already framed charges and, following the directions of the Supreme Court and this Court, the trial is proceeding on a day‑to‑day basis with 289 witnesses examined. He argued that once charges are framed, the trial must continue and the accused can only be acquitted or convicted; discharge is not permissible. He submitted that the appellant’s letters dated 16 January 2008, 2 April 2018 and 8 February 2019 constitute his defence in the trial and therefore he cannot invoke Section 197 of the Criminal Procedure Code. He maintained that the appellant’s acts were not performed in the colour of his official duty but were unrelated to his service, and that the Court of Inquiry conducted by the Army has no bearing on a civilian bomb‑blast investigation. He relied on the Supreme Court decision in Major Suresh C. Mehra v. Defence Secretary, Union of India & Ors. (1991) 2 SCC 198, and cited a letter dated 24 March 2011 from Brigadier Gautam Deb, Deputy Director General of Military Intelligence (B), to the then Additional Director General of Police, Anti‑Terrorism Squad, Mumbai, stating that there was no input from the appellant’s office regarding any official communication on terrorist matters. He concluded that there is no merit in the appellant’s claim for sanction and prayed for dismissal of the appeal., Mr. Shahid Nadeem, learned Advocate for the intervenor, adopted the arguments of the Special Public Prosecutor and also relied on the Major Suresh C. Mehra decision, emphasizing that the Court of Inquiry under Army Rules is a preliminary investigation and cannot be equated with a trial. He submitted that there are no merits in the appeal and prayed for its dismissal., The appellant contended that the offence was committed while performing his official duty. He relied on three confidential letters: (i) a letter dated 16 January 2008 addressed by Lt. Col. Rajasegharan MC to the Commander of the Logistics Unit, which mentioned intelligence about Abhinav Bharat’s planned political agenda; (ii) a letter dated 2 April 2018 addressed by Brigadier S.S. Chahal to the appellant in response to an application filed by the appellant on 24 December 2017 to the Chief of Army Staff, stating that the appellant was operating a source network and that his superiors were informed of the intelligence inputs; and (iii) a letter dated 8 February 2019 addressed by Colonel M.S. Gill to Mr. G.P. Singh, Inspector General (Intelligence & Operations), National Investigation Agency, responding to a questionnaire dated 14 December 2018, which categorically stated that there is no record to substantiate the appellant’s claim of having sought permission to form the Abhinav Bharat trust or to collect and disburse funds for it. The appellant argued that these letters demonstrate his official role in gathering intelligence on the organisation., The National Investigation Agency relied upon a letter dated 29 March 2011 from Brigadier Gautam Deb, Deputy Director General of Military Intelligence (B), to the then Additional Director General of Police, Anti‑Terrorism Squad, Mumbai, stating that there was no input available with the military intelligence office regarding any official communication by the appellant concerning terrorist matters or meetings of Abhinav Bharat. This letter was issued in response to a query raised by the Anti‑Terrorism Squad regarding the appellant’s statements in his bail application No. 333 of 2011. The court found that this letter, together with the documents dated 16 January 2008 and 8 February 2019, creates a contradiction, and that the 29 March 2011 letter carries greater weight. The court concluded that the appellant obtained the other two documents merely to create a defence and that they do not support his claim of acting in official capacity., The Court of Inquiry constituted by the Army did not conduct a trial of the present crime, which involves offences under Section 120‑B read with Section 302 of the Indian Penal Code and provisions of the Unlawful Activities (Prevention) Act. As held by the Supreme Court in Major Suresh C. Mehra, an inquiry under Army Rules is a preliminary investigation and cannot be equated with a criminal trial. Consequently, the appellant’s argument that the Court of Inquiry’s exoneration entitles him to discharge for lack of sanction under Section 197 of the Criminal Procedure Code is rejected., The appellant relied on three Supreme Court decisions—Prashant Bharati v. State (NCT of Delhi), Devinder Singh & Ors. v. State of Punjab, and D. Devraja v. Owais S. Hussain—but the court held that these decisions are not applicable to the facts of the present case. The Bharati case dealt with framing of charges under Sections 376, 328 and 354 of the Indian Penal Code and quashing of an FIR under Section 482 of the Criminal Procedure Code, which is unrelated. The Devinder Singh case involved a fake police encounter, and the Devraja case concerned a private complaint against an appellant for alleged ill‑treatment in police custody; neither case provides guidance on the requirement of sanction under Section 197 of the Criminal Procedure Code in the present context., In P.K. Pradhan v. State of Sikkim (2001) 6 SCC 704, the Supreme Court held that Section 197(1) of the Criminal Procedure Code creates a statutory prohibition on a court taking cognizance of an offence committed by a public servant in the discharge of official duty unless prior sanction from the Government is obtained. The Court explained that the offence must have a connection with the discharge of official duty for the sanction requirement to arise.
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No question of sanction can arise under Section 197 of the Code of Criminal Procedure unless the act complained of is an offence; the only point for determination is whether it was committed in the discharge of official duty. There must be a reasonable connection between the act and the official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty, as this question will arise only at a later stage when the trial proceeds on the merits. What a court has to find out is whether the act and the official duty are so interrelated that one can reasonably postulate that it was done by the accused in the performance of official duty, though possibly in excess of the needs and requirements of the situation. Thus, from a conspectus of the aforesaid decisions, it will be clear that for claiming protection under Section 197 of the Code of Criminal Procedure, it has to be shown by the accused that there is a reasonable connection between the act complained of and the discharge of official duty. An official act can be performed in the discharge of official duty as well as in dereliction of it. For invoking protection under Section 197, the acts of the accused complained of must be such that they cannot be separated from the discharge of official duty; if there was no reasonable connection between them and the performance of those duties, the official status furnishes only the occasion or opportunity for the acts, and no sanction would be required. If the case as put forward by the prosecution fails or the defence establishes that the act purported to be done is in discharge of duty, the proceedings will have to be dropped. It is well settled that the question of sanction under Section 197 can be raised at any time after cognizance, whether immediately after cognizance or framing of charge, or even at the time of conclusion of trial and after conviction. However, there may be certain cases where it may not be possible to decide the question effectively without giving the defence an opportunity to establish that what he did was in discharge of official duty. In such an eventuality, the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of the trial., The appellant has been charged with the allegations more specifically mentioned in paragraph eight above. A minute perusal of the record clearly indicates that the appellant was never granted permission by the Government to float the Abhinav Bharat organization in spite of being a serving commissioned officer of the Armed Forces of India. The appellant was also not permitted to collect funds for the said organization and to disburse them to procure weapons and explosives for unlawful activities. The appellant is the key conspirator in the present crime. He has actively participated with other co‑accused and has organized and conducted various meetings with them in furtherance of their common object of the criminal conspiracy to commit unlawful activities. If the contention of the appellant that he was directed to perform official duty to gather information regarding Abhinav Bharat is to be accepted, then the question remains why he did not avert the bomb blast in the civilian locality of Malegaon, which caused the loss of life of six innocent persons and serious to grievous injuries to about one hundred persons. Even otherwise, indulging in an activity of a bomb explosion causing death of six persons is not an act done by the appellant in his official duty., After minutely perusing the entire record we are of the considered opinion that the offences alleged against the appellant under Section 120‑B read with Section 302 and other related sections of the Indian Penal Code and under the provisions of the Unlawful Activities (Prevention) Act, namely the commission of murder of six persons and causing serious to grievous injuries to about one hundred persons, have nothing to do with his official duty. The said act is not in the colour of his office, but totally unconnected with his official duty. According to us, there is no reasonable connection between the offence alleged against the appellant and his official duty. The act alleged against the appellant has not been committed in discharge of his official duty. Therefore no question at all of sanction under Section 197 of the Criminal Procedure Code to prosecute the appellant arises. The trial court therefore has not committed any error while taking cognizance of the offence alleged against the appellant and rejecting his application for discharge on that ground., The cumulative effect of the aforesaid deliberation is that there are no merits in the appeal and the appeal is accordingly dismissed. In view of the disposal of the appeal, Interim Application No. 1252 of 2021 does not survive and is also disposed of.
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Before the District Consumer Disputes Redressal Commission, Mumbai Suburban, New Administrative Building, Third floor, opposite Dr. Babasaheb Ambedkar Garden, Bandra (East), District Mumbai Suburban 400051. Date of admission 03/05/2014. Judgment dated 17/03/2023. Mr. Kersi J. Divecha, 1402 Hilla Towers, 121 Dr. S.S. Rao Road, Lalbaug, Mumbai 400012. Complainant Smt. Taubon Irani, Advocate, 19 Aarmaan Villa, Malcolm Baug, S.V. Road, Jogeshwari (West), Mumbai 400102. Opposite Party members: Honourable Smt. Preethi Chamikutty, Member; Honourable Smt. Shraddha M. Jalanapurkar, Member. Both parties appeared in person., The present complaint is filed against the Opposite Party praying for refund of charges taken for professional services, along with compensation and costs. The complainant availed professional services of the Opposite Party by signing a Vakalatnama for prosecuting his Appeal No. 194/2009 in the Bombay High Court, for which he paid Rs 65,000 in advance. The amount was sent by cheque and received by the Opposite Party on 19 August 2009. A letter dated 16 August 2009 and a statement of payment details are marked as Exhibit A of the complaint. In that letter the complainant stated nine items of instruction, which were agreed by the Opposite Party except item 4; for the present complaint the complainant relies on items 7 and 8. The Opposite Party undertook to correct the order dated 24 February 2009 passed by Justice Dharmadhikari, copy annexed as Exhibit B, and to move two Notices of Motion: (i) rectification before a Single Judge and (ii) rectification of Appeal No. 194/2009. The Opposite Party was alleged to be negligent in professional service, based on court records dated 26 February 2010, 12 March 2010, 27 October 2010, 31 January 2011 and 08 March 2011. The appeal was dismissed for default on 08 March 2011, copies annexed as Exhibit C. Records of roznamas for restoration of the appeal dated 22 February 2012, 28 February 2012, 05 March 2012 and 07 March 2012 are annexed as Exhibit D. Reinstatement of the appeal was granted after one year, from 08 March 2011 to 07 March 2012., By email dated 16 October 2011 the Opposite Party discontinued her services, for which she had been paid professional charges of Rs 50,000 for the appeal, two Notices of Motion and Rs 15,000 for an additional Notice of Motion relating to passports. The complainant alleges that it is an unfair business practice to discontinue services after the restoration of the appeal on 07 March 2012, which had been dismissed a year earlier on 08 March 2011 due to the Opposite Party’s own negligence. He further states that he suffered loss having to engage another advocate at a cost of Rs 50,000. The complainant claims deficiency of service because the Opposite Party failed to carry out rectification of Justice Dharmadhikari’s order as undertaken in item 8 of the instruction letter, and also failed to file a Notice of Motion to expedite the appeal before the deadline of 30 November 2010, causing frustration to the complainant and depression to his aged mother. The Opposite Party also failed to file a Vakalatnama for appearing in the appeal from 2009 through 2012, which is admitted by her email dated 29 February 2012; the matter was challenged by the respondent in a roznama dated 28 February 2012., The complainant asserts that it is an unfair business practice that the Opposite Party refuses to refund the fees of Rs 65,000, causing inconvenience, frustration and mental anxiety from 2009 until 2012. He relies on emails annexed as Exhibit F which he says show his mental tension and anxiety. He therefore prays that the professional fees paid be refunded along with compensation and costs., After admission of the complaint, the Opposite Party appeared and filed a reply stating that the complaint is false, vexatious and malicious and should be dismissed with heavy costs, alleging that the complainant has not come with clean hands and concealed vital facts. She claimed the cause of action arose in March 2011 and that the complainant has done nothing since then. The Opposite Party noted that the complainant had filed a complaint with the Bar Council of Maharashtra and Goa, Disciplinary Case No. 1094 of 2012, but had failed to pursue it after her reply. She stated that the complainant was referred to her by one Rustom Khan in May 2009, who met her at the Bombay High Court to discuss the case. The complainant informed her about losing the custody appeal of his two sons to his ex‑wife, who told him that her fees would be Rs 50,000 for the final hearing as the appeal was already admitted. The Opposite Party said the complainant complained about Advocate Franak Contractor and Advocate Anusuya Dutta, alleging they had overcharged him. She also said the complainant brought his aged mother to create sympathy and asked her to draft a complaint against previous advocates, which she refused., After meeting the complainant, he asked the Opposite Party to move motions for certain reliefs not part of the appeal work. She agreed to file two Notices of Motion for additional fees of Rs 20,000. The complainant bargained on this aspect, and feeling sorry for his mother, the Opposite Party agreed on fees of Rs 30,000 for the appeal and Rs 10,000 per Notice of Motion. Both Notices of Motion (Nos. 3231/2009 and 3768/2009) were heard before Justices Majmudar and Chavan, and by order dated 5 November 2009 the hearing of the main appeal and the two Notices of Motion was fixed for 05 October 2010., The Opposite Party states that the complainant exploited her services and made her send correspondences to Sanobar Nanavati, Advocate for his ex‑wife in the appeal, which she initially thought was a one‑off letter, but the correspondence became frequent and the complainant started hounding her. The appeal did not come for final hearing as the assignment changed, and Notice of Motion No. 4293 of 2010 filed by the complainant’s ex‑wife was heard before Justices Marlapalle and Tahilramani, disposed by order dated 20 January 2010. On the Opposite Party’s request, the custody appeal was placed for final hearing on 26 February 2010. During the hearing she argued for one hour and thirty minutes; Justice Marlapalle then called for the children to be interviewed. The Opposite Party informed the bench that the children had been tutored and the complainant was skeptical about the interview, but the bench assured that the proceedings were well‑versed. The complainant turned down the offer, and the bench treated the hearing as null and void, resulting in no order. Subsequently, on the complainant’s instructions the Opposite Party filed Notice of Motion No. 740/2010 before Justices Deshmukh and Kingaonkar, disposed by order dated 07 April 2010, and Notice of Motion No. 1488/2010 before Justices Deshmukh and Sondur Baldota, disposed on 09 June 2010. The appeal was placed for final hearing in August 2010., The Opposite Party states that the assignment changed again and she became weary about the actual purpose of filing the appeal, which she felt was more about ego than merits. The complainant wanted to modify Justice Dharmadhikari’s order regarding bearing expenses of the minor children, claiming that since he did not have custody he did not wish to bear their expenses. Despite the Opposite Party’s explanations of the merits, the complainant remained concerned only with money and repeatedly complained about excessive fees charged by Ms. Contractor and Ms. Dutt. She even introduced the complainant to a match‑maker, but his ego prevented him from accepting that his children chose their mother and step‑father over him. Later the complainant and his mother approached her and suggested appointing a senior counsel with standing before Justice Deshmukh. The Opposite Party suggested Mr. Sanjeev Gorwadkar and Mr. Jamshed Cama; the complainant chose Mr. Cama, met him independently, fixed fees and gave the Opposite Party a brief to avoid additional Xerox costs. Mr. Cama appeared in court once in November 2010, but the matter did not proceed further and the appeal did not come up for hearing. The Opposite Party realized she was expending effort for an ungrateful person who had caused harm to his children, and even Mr. Cama suggested an amicable resolution, which the complainant’s ego rejected., The Opposite Party states that the complainant constantly hounded her, with approximately two hundred emails exchanged, though only a few were produced. The appeal appeared on the board in March 2011, but because she filed her Vakalatnama across the bar, her name did not appear for the appellant. She made several requests to departments and benches about her name not appearing, and the appeal was dismissed. Upon learning of the dismissal she immediately filed Motion No. 1079/2011 for restoration. After filing the motion the complainant agreed to meetings for amicable settlement, and the Opposite Party corresponded with the advocate of the complainant’s ex‑wife. Two settlement meetings were held without result, and the complainant even insulted the advocate of his ex‑wife during a meeting. In March 2011 the Opposite Party informed the complainant that she would not represent him, but his friend Mr. Palia persuaded her to complete the case. She agreed to restore the appeal and move a precept for the motion to be placed on board. The appeal was heard before Justices Deshmukh and Potdar when the advocate for the complainant’s ex‑wife stated that the Opposite Party’s Vakalatnama was not on record. This issue had never been raised before, even when she argued for one and a half hours before Justices Marlapalle and Tahilramani. On the bench’s directions she filed her Vakalatnama again, and the appeal was restored by order dated 07 March 2012, as the Honourable Bench of the Bombay High Court noted her appearance in the matter since 2009 and her name in all orders and several Notices of Motion. After restoration, the complainant chose to side with the advocate of his ex‑wife for his own gain, while previously he had cursed the Opposite Party. On the same day outside the court premises the Opposite Party handed over her No‑Objection Letter to the complainant, and the brief had been handed over in 2010 when the complainant gave it to Mr. Cama. She also handed over all correspondence exchanged between her and the advocate of the complainant’s ex‑wife and has no documents of the complainant in her possession. She informed the advocate to correspond directly with the complainant, but despite informing the complainant on 22 March 2011 and 11 October 2011 that her role would be limited to restoring the appeal and that he should appoint another advocate, the complainant instructed her to continue correspondence with the advocate of his ex‑wife., The Opposite Party states that she began receiving indirect and indecent threatening emails from the complainant demanding a refund of Rs 50,000, alleging that he had paid Mr. Cama Rs 50,000, which she was unaware of as she was not present when the terms of Mr. Cama’s appointment were discussed. When the complainant started demanding a refund, she asked Mr. Rustom Khan, who had referred him, to become involved, but the complainant backed out. The Opposite Party lists the work she performed in Appeal No. 194/2009: (i) filed Notice of Motion No. 3231/2009 decided on 05 November 2009; (ii) filed Notice of Motion No. 3768/2009 decided on 05 November 2009; (iii) defended Notice of Motion No. 4293/2009 decided on 20 January 2010; (iv) filed Notice of Motion No. 740/2010 decided on 07 April 2010; (v) filed Notice of Motion No. 1488/2010 decided on 09 June 2010; (vi) conducted hearing and final arguments on 26 February 2010 for one and a half hours; (vii) filed Notice of Motion No. 1079/2011 disposed on 07 March 2012., The Opposite Party states that from August 2009 to March 2012 she appeared in various Notices of Motion, made several correspondences, attended a conference with Mr. Cama, and participated in settlement talks with Ms. Nanavati for fees of Rs 65,000, for which a memo of bill has been given to the complainant. She has not been paid for the appeal nor for the multiple correspondences exchanged with the advocate of the ex‑wife or the conferences held with the complainant. She alleges that the complainant misused her generosity and exploited her services, and that under no circumstance can the services rendered be said to be against professional conduct. She denies liability for fees paid to senior counsel and prays for dismissal of the complaint with exemplary costs., The complainant and the Opposite Party filed their affidavits of evidence, repeating the averments made in the complaint and the reply. The complainant filed an application praying for costs to be awarded, to which the Opposite Party filed a reply opposing the same, stating that the application was filed two years after she filed her written statement, was accepted by this Forum without objection, and was moved with ulterior motives and malafide intention, deserving dismissal with costs. By order dated 13 December 2016 of this Forum, the application was to be decided at the time of final hearing. The complainant filed a pursis to consider his written arguments as oral arguments, and despite numerous opportunities given to the Opposite Party to argue orally, she remained absent, and the matter was closed for judgment., After reviewing all documents, the Forum considered the following points: (1) Whether the complainant proves deficiency of service and unfair trade practice on the part of the Opposite Party? The answer is No. (2) Whether the complainant is entitled to the reliefs prayed for? Does not arise. (3) Order as per final order., The complainant alleged that the Opposite Party did not complete items 7 and 8 of the letter dated 16 August 2009 and abandoned his appeal after restoration in 2012. The Opposite Party outlined the various actions taken between 2009 and 2012 and prayed for dismissal of the complaint as frivolous and malicious. The Forum noted that the email correspondences annexed to the complaint are selective and do not contain the entire email threads, and cannot be considered as evidence of deficiency of service or unfair trade practice under the Act., The moot point is whether a deficiency of service by the Opposite Party caused the dismissal of Notice of Motion No. 1079/2011 dated 08 March 2011, and whether the Opposite Party’s refusal to continue handling the matter after restoration of the appeal dated 07 March 2012 constitutes deficiency of service. The Opposite Party explained at length the course of her dealings with the complainant; none of her averments have been denied, which can be taken as corroboration. The reasons for her name not appearing on the Bombay High Court board and the subsequent dismissal of Notice of Motion No. 1079/2011 are considered correct. However, her steps to restore the appeal and the later dismissal of the Notice of Motion do not contain any ingredient of deficiency of service or unfair trade practice., The complainant also contended that abandoning his appeal after restoration would constitute deficiency of service. The Opposite Party’s affidavit states that she argued before Justices Marlapalle and Tahilramani for one hour and thirty minutes on 26 February 2010, and when the bench directed production of the children for interview, the complainant turned it down. He thereafter asked the Opposite Party to file certain Notices of Motion, sought assistance for appointment of senior counsel, and made attempts at settlement, as detailed in paragraph 7. Subsequent bad blood led the Opposite Party to cease acting as advocate for the complainant in the Bombay High Court. The complainant now seeks a refund of Rs 65,000 paid in Appeal No. 194/2009 along with compensation and costs. The work done by the Opposite Party, as summarized in paragraph 7, is deemed commensurate with the fees taken. The complainant appears to have misunderstood legal procedures and holds an unwarranted sense of entitlement to the money, which does not constitute deficiency of service or unfair trade practice. Points 1 and 2 are answered accordingly., All pleadings in the present case are in English; therefore the judgment is pronounced in English. Considering the facts and circumstances, the following order is passed: (1) Consumer Complaint No. CC/131/2014 is dismissed. (2) No order as to compensation or costs. (3) A copy of the final order shall be given to all parties as per the Consumer Protection (Consumer Commission Procedure) Regulations, 2020, Regulation 21(1) and Regulation 18(6). (4) A certified copy of the final order shall be given to all parties as per the same regulations.
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Date: 25/01/2023. Appearance: Learned advocate Mr. Ekrama Qureshi for the appellant and learned advocate Mr. Nishith Acharya for the respondent at length., The present appeal under Section 96 of the Code of Civil Procedure, 1908, read with Section 28 of the Hindu Marriage Act, 1955, preferred by the appellant husband is directed against the judgment and decree dated 20.11.2019 passed by the learned Principal Judge, Family Court of India, Amreli, whereby the Family Court of India granted the prayer of the respondent wife for dissolution of marriage between the parties, deciding the Family Suit No. 66 of 2017 accordingly., The said suit was instituted by the applicant plaintiff‑wife under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as \the Act\) pleading inter alia that the plaintiff‑respondent had contracted a civil marriage with the defendant‑appellant. The parties are addressed as per their original status in the suit as plaintiff‑wife and defendant‑husband., On 04.08.2018, the marriage between the parties was registered by the competent authority at village Chakkargadh of the Amreli District. After one month, the plaintiff‑wife went to stay at the matrimonial house at Bhavnagar in the joint family. Before the marriage, the plaintiff was studying Civil Engineering at Amreli and was in the third year of the course. The respondent‑defendant was a teacher in the college where the plaintiff also studied. The plaintiff alleged that the defendant habitually told her that she should secure double 'A' grade in the subject taught by him and that if such result was not secured, she would have to succumb to his wishes., The defendant obtained the mobile number of the plaintiff and sought to maintain a relationship as a friend. He conveyed that the teacher‑pupil relationship was to be limited to 6.00 PM, after which they should behave as friends. The defendant pressed the plaintiff to contract marriage with him. The defendant was already married and had two children from his first wedlock. He told the plaintiff that if she married him, his children would receive a mother's love., The plaintiff, being of very young age, was unwilling to marry against her parents' wishes. The defendant allegedly blackmailed her, threatened suicide, and once attempted suicide. Out of fear, pressure and coercion, she was forced to go for civil marriage. It was alleged that the defendant obtained the plaintiff's signature on the marriage application form and thus contracted the marriage., After marriage, the plaintiff was initially given proper treatment, but later the respondent started taunting her on small issues, instigated by his mother and father. The in‑laws and the appellant demanded that the plaintiff bring a share of property from her parental house and demanded Rs 5 lakhs towards furniture. When the plaintiff refused, she was driven out of the matrimonial home., The plaintiff stayed at her parental house for some time. The defendant later took the plaintiff back to Bhavnagar. She became pregnant three times, but was forced to undergo abortions by the husband and in‑laws against her wish. She stated that she was treated like a maid., Prior to marriage, the plaintiff was promised that the husband would allow her to complete her studies, but subsequently he refused and demanded that she bring some share of money from her father, otherwise she would not be permitted. The plaintiff said she was threatened by the husband not to say anything, and was threatened that her brother would be killed. Consequently, she did not file any complaint and tolerated the torture. In 2013, the defendant and his parents drove the plaintiff away from the house, committing acts of cruelty., Since the marriage, the defendant husband did not provide maintenance nor extend matrimonial rights and gave up all efforts to continue marital life. He behaved with cruelty and, since 2013, deserted the wife without any good cause. On such pleadings, the plaintiff prayed for a decree of divorce on the grounds of cruelty and desertion., The defendant filed a written statement denying the plaintiff's allegations, stating that the marriage was not contracted forcefully or under threat. He alleged that the plaintiff's family members threatened the defendant to kill him, and that the plaintiff herself was frightened by threats from her father and, without informing the defendant husband, went to stay at her parental house., The defendant claimed that the plaintiff asked him to file a complaint against her mother and father, and consequently the defendant filed complaints against the father‑in‑law and mother‑in‑law. It was stated that thereafter the defendant's parents severed all relationship with the plaintiff, including her share in the property, and a press note was published in the local newspaper., The defendant contended that the matrimonial life between the parties was smooth. He secured admission for the plaintiff to study B.Sc. at Bhavnagar and took care of all her needs. He claimed that the plaintiff wanted to complete a diploma course, after which she would return to her father's house and then stay with the defendant. He asserted that the plaintiff stopped contacting him on telephone and her inclination had changed., After a year, the plaintiff's children were admitted to school and the wife was told to return to the matrimonial house. The plaintiff conveyed that, to protect her parents' reputation, she could not return to the defendant. The defendant stated that the plaintiff demanded he settle the dispute by paying Rs 25 lakhs to her father. He also stated that, under family pressure, his mother committed suicide by taking acid., The trial court noted that the defendant did not produce oral or documentary evidence. During the trial, the defendant repeatedly sought adjournments, which were granted, and he was given adequate opportunity to lead his evidence. Cost was imposed for an adjournment but not paid by the defendant, after which his right to lead evidence was closed. Although the defendant applied to reopen the stage of evidence, he continued to seek adjournments and did not appear, effectively giving up the prayer to reopen evidence. The court observed that from the service of summons to the completion of arguments, the defendant never appeared before the court., The trial court framed two issues: (i) whether the petitioner wife proved that the respondent treated her with cruelty, and (ii) whether the petitioner proved that the respondent deserted her for a continuous period of not less than two years immediately preceding the filing of the petition. The trial court answered both issues in the affirmative, recorded that the parties had contracted a civil marriage, relied on the plaintiff's deposition, and passed a decree of divorce., Learned advocate for the appellant, assailing the impugned judgment and decree, submitted that the plaintiff's story was not correct. He argued that the plaintiff willingly developed a relationship with the defendant while studying under him, and married with full knowledge that the defendant was already married with two children. He contended that the plaintiff was of majority age and capable of making her own decisions, and that the appellant was in Bhavnagar at the time of marriage, not Amreli., He further submitted that, although the wife alleged three forced terminations of pregnancy, no evidence was produced. He claimed that the appellant took care of the plaintiff, did not coerce her, and arranged for her studies at Science College, Amreli, where she completed a diploma course in 2013, which could not have been done without the appellant's cooperation., Learned advocate for the respondent submitted that the facts were clear. He referred to the plaintiff's evidence, stating that questions were put to the wife and she could prove her case. He asserted that the respondent was aware that the plaintiff was his student and had taken unfair advantage of the relationship to contract marriage and then exert cruelty., The plaintiff submitted her examination‑in‑chief by affidavit, reiterating that her civil marriage was contracted on 04.08.2011, registered, and that after marriage she stayed in the joint matrimonial family. She testified that before marriage she was a student in Amreli Polytechnic College where the appellant, a teacher, told her she must obtain an AA grade, otherwise she would have to obey him. She deposed that the appellant sent her messages repeatedly asking her to maintain friendship, blackmailed and threatened her with death, and once took poisonous liquid., She stated that she was coerced, forced and mentally harassed to enter into the marriage relationship. She alleged that the appellant obtained her signature on the application form by deceit, claiming it was required to avoid objection from her family., She testified that after some time her in‑laws demanded dowry of Rs 5 lakhs for furniture. When she refused, the appellant and his parents deserted her. She claimed she conceived three times, each time being forced to undergo abortion. She said that after being taken back, she was again driven out in 2013 and has been leading a miserable life since., During cross‑examination, the defendant husband was asked about the date of marriage and whether he was aware that the appellant had two children from an earlier wedlock. The wife stated that after marriage she stayed for about one year in the matrimonial house with the appellant., Regarding the complaint filed on 03.03.2012 by the plaintiff against her own parents, she stated in cross‑examination that the act was done under compulsion, as the husband compelled her to lodge the complaint to create a rift between her and her parents. She denied that the suit was filed to harass the appellant., The decree of divorce was prayed for by the plaintiff wife on the grounds of cruelty and desertion. The trial court accepted these grounds and passed the decree of divorce., Section 14 of the Family Courts Act allows a Family Court to receive as evidence any report, statement, document, information or matter that may, in its opinion, assist in dealing effectively with a dispute, whether or not it would otherwise be relevant or admissible under the Indian Evidence Act. This provision gives leeway to the Family Court in matrimonial matters, permitting it to consider documents irrespective of strict rules of evidence., The Bombay High Court in Deepali Santosh Lokhande v. Santosh Vasantrao Lokhande (2018) explained that the object of this provision is to remove any embargo on the Family Court to first examine the relevance or admissibility of documents under the Indian Evidence Act, and to simplify the rules of evidence and procedure so that a Family Court can deal effectively with a matrimonial dispute., The Court observed that in matrimonial cases the Family Court should adopt standards of a prudent person, apply the principle of preponderance of probabilities, and consider facts with human sensitivity rather than strict technical rules. The Court noted that matrimonial disputes often lack legal representation and require a realistic and rational approach., Section 5 of the Hindu Marriage Act, 1955 provides conditions for a Hindu marriage. Clause (i) requires that neither party have a living spouse at the time of marriage. The appellant was already married with two children, and his first wife was living; therefore the marriage suffered from a basic infirmity. Section 11 of the Act deals with void marriages, stating that a marriage contravening the conditions of Section 5(i) may be declared void., The evidence shows that the respondent was driven out of the matrimonial house and deserted in 2013, constituting cruelty. Section 13(1)(ia) of the Act provides that where one party treats the other with cruelty after solemnisation of marriage, the marriage may be dissolved., In G.V.N. Kameshvar Rao v. G. Jebily (AIR 2002 SC 576), the Supreme Court observed that cruelty is not defined and must be inferred from the circumstances of each case. In Smt. Mayadevi v. Jagdish Prasad (AIR 2007 SC 1426), the Court held that the standard of proof for cruelty in divorce proceedings is not beyond reasonable doubt but based on probabilities. The Court emphasized that mental cruelty may be established by examining the effect of the acts on the complainant spouse., In Vishwanath Sitaram Agrawal v. Sarla Vishwanath Agrawal (AIR 2012 SC 2586), the Supreme Court noted that cruelty is linked to human conduct, social strata, and cultural values., The relationship between the appellant and the plaintiff was that of teacher and student. The plaintiff, aged 28, was a student in the Polytechnic College; the husband, aged 40, was the teacher. Evidence shows that the appellant advanced himself to seek a relationship, married the plaintiff despite being already married with two children, and pressured the plaintiff to obtain an 'A' grade, threatening that she would have to obey him if she failed., The appellant repeatedly sent messages to the plaintiff, which constituted harassment. The in‑laws demanded Rs 5 lakhs for furniture, and the plaintiff was driven away when she refused. She was forced to undergo abortion three times against her wish., The appellant produced documents such as Aadhar card, bank passbook, college fee receipt, identity card, pregnancy report, and medical prescription, which do not discard the plaintiff's claim of cruelty. The medical reports support the claim that she was pregnant and forced to abort., The plaintiff proved her case. Cruelty, though not defined, is determined by the facts and circumstances. The large age gap, forced marriage, and post‑marriage treatment establish cruelty., The submission that there is no evidence is not acceptable. The facts themselves tell the story, and the plaintiff's evidence was not substantially contradicted in cross‑examination., In view of the foregoing, the challenge to the judgment and decree granting divorce is without error and must be upheld. The appeal is dismissed, and the connected civil application is also disposed of.
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State Transfer No. 10 of 2022, CNR No. JKSG010003272022. Date of Institution: 08 March 2022. Date of Judgment: 04 March 2024. Date of Sentence Order: 06 March 2024. In the case of the Union Territory of Jammu and Kashmir through Police Station Nowhatta, Srinagar, the accused is Sajid Altaf Sheikh (Rather), son of Mohammad Altaf Sheikh (Rather), resident of Khalpora Buchwara, Dalgate, Srinagar (convict). The matter relates to FIR No. 08 of 2022 of Police Station Nowhatta, offence under Sections 326A and 120B of the Indian Penal Code. Learned Public Prosecutor Ajaz Hussain represented the Union Territory of Jammu and Kashmir. Advocate Mir Naveed Gul, Penal Lawyer assigned to the victim by the District Legal Services Authority, Srinagar, represented the victim. Advocate Amir Masoodi and associates represented the convict., By a detailed judgment dated 04 March 2024, the accused Sajid Altaf Sheikh (Rather) has been held guilty by the Court of Jammu and Kashmir for the commission of the offence punishable under Section 326A read with Section 34 of the Indian Penal Code in FIR No. 08 of 2022 and is convicted for that offence, but has been acquitted of the offence punishable under Section 120B of the Indian Penal Code. The other accused, Mohammad Saleem Kumar, who was tried together with the first accused for offences under Section 326A read with Section 120B of the Indian Penal Code in the same FIR, has been acquitted of those offences but held guilty and convicted for an offence punishable under Section 336 of the Indian Penal Code and sentenced to three months imprisonment, which has been set off against the period of detention he underwent during investigation and trial., I have heard the Learned Public Prosecutor and the Learned counsel for the convict on the quantum of punishment., The Learned Public Prosecutor submitted that the act of the convict was a brutal inhuman act which disfigured the face of the victim, who is just 26 years of age. By this brutal act the victim has completely lost the eyesight of her left eye and can see only about five percent with her right eye. He stated that to date the victim has undergone twenty‑three surgeries and her parents have spent a huge amount on her treatment, yet her treatment is not complete. The barbaric act has crippled the victim’s life; she requires the assistance of at least two helpers because one eye is completely damaged and the other eye’s vision is impaired by about ninety‑five percent. The victim’s father is a poor tailor and is unable to bear the medical and lifelong expenses of the victim, who has become completely dependent on her parents. To meet the medical expenses, the victim’s mother has disposed of her house. The Learned Public Prosecutor highlighted that acid‑attack cases, especially on young girls, are increasing. Acid attacks cause physical damage as well as adverse economic, mental, emotional and social effects. The disfigured face constantly reminds the victim of the barbaric act, lowering her morale. He argued that if the convict is not awarded the maximum punishment provided by law, the victim will live in constant fear that the convict may take revenge with an even more heinous act. He emphasized that the court has a duty to ensure the safety of the victim while awarding punishment and must consider the larger interest of society to deter similar acts. He noted that the legislature, by amendment, incorporated the offence of Section 326A of the Indian Penal Code providing stringent punishment for acid attackers. In the facts and circumstances of the present case, the convict does not deserve any leniency. Apart from awarding the maximum punishment of life imprisonment under Section 326A of the Indian Penal Code, the convict may also be imposed a fine equivalent to the medical expenses incurred by the victim as on date as well as future medical expenses needed for her complete restorative treatment. To buttress his arguments, the Learned Public Prosecutor relied on the judgments of the Supreme Court of India in State of Karnataka By Jalahalli Police v. Joseph Rodrigues, reported in 2006 (5) All India Reporter Karnataka 724; Ravji @ Ram Chandra v. State of Rajasthan, reported in 1996 All India Reporter 787; and Suresh v. State of Karnataka, Criminal Appeal No. 1469 of 4., The Penal Lawyer, Advocate Mir Naveed Gul, assigned to the victim by the District Legal Services Authority, Srinagar, submitted that the inhumane and barbaric acid attack has not only ruined the victim’s life but also shattered the lives of her family members. The victim’s mother had to sell her house to meet the medical expenses. He stated that the victim has undergone twenty‑three restorative surgeries outside the Union Territory of Jammu and Kashmir in Chennai because the specialized treatment is not available locally, yet her treatment remains incomplete. He presented the details of the medical bills and expenses, which were taken on record, and the original bills were returned to him. He reiterated that the parents are very poor and cannot bear the expenses. Apart from awarding the maximum life punishment, the convict may also be imposed a fine equivalent to the victim’s medical expenses and future expenses., The victim, who was present in the Court at the time of arguments on quantum of punishment, narrated the struggle and hardships she has been undergoing since the convict threw acid on her. She said she wants justice by awarding the maximum punishment to the convict so that no other girl in society suffers such trauma. She stated that her left eye is completely damaged and she can see only a little with her right eye. Both eyes are closed; she cannot independently stand or walk and always needs the help of two to three persons. She has undergone twenty‑three surgeries in Chennai and incurred expenses of more than Rs 48 lakhs, and still requires further treatment with no hope of restoring her eyesight. Her mother disposed of her house to bear the expenses. The victim produced six photographs, three taken before the incident and three after, showing the permanent disfigurement of her face. She has received Rs 3.00 lakhs as interim compensation from the District Legal Services Authority, Srinagar, under the victim compensation scheme and Rs 1.00 lakh from the civil administration, but no other monetary help., The victim was supported in the Court by Sehar Nazir, another acid‑attack survivor. With the Court’s permission, Sehar Nazir submitted that she has passed through a similar phase and is voluntarily providing support to encourage the victim to face the trauma. She stated that the convict, who is present in the Court, shows no remorse and should be awarded the maximum punishment, and the victim, who needs a lot of money for restorative treatment, should be adequately compensated., The Learned Counsel for the convict, Advocate Amir Masoodi, expressed sympathy with the victim but submitted that the Court cannot be driven by emotions nor is it the duty of the Court to send a message to society by awarding a harsh sentence; the Court must consider mitigating circumstances. He argued that the convict is the sole breadwinner for his family, is about twenty‑five years old, has no prior criminal record, and this is his first offence, therefore he deserves leniency. He relied on two judgments of the Supreme Court of India: Mohammad Giasuddin v. State of Andhra Pradesh, reported in 1977 All India Reporter 1926, and Pramod Kumar Mishra v. State of Uttar Pradesh arising from SLP (CRL) No. 2190/2023. The counsel prayed that a minimum punishment be awarded to the convict., The convict, who was present during the arguments on quantum of punishment, was given a chance to make a submission. His sister, also present, prayed for leniency in awarding punishment, citing the young age of the convict., I have considered the arguments of both sides on the quantum of punishment as well as the submissions made by the victim and the convict., The convict has been held guilty for the commission of the offence punishable under Section 326A read with Section 34 of the Indian Penal Code and has been convicted for that offence. The punishment provided for the offence under Section 326A of the Indian Penal Code is imprisonment of either description for a term not less than ten years, which may extend to life imprisonment, and a fine. As per Proviso 1 to Section 326A, the fine shall be just and reasonable to meet the medical expenses of the victim. As per Proviso 2, the fine shall be paid to the victim., The great jurist Lord Denning, while appearing before the Royal Commission, expressed the following view on the object of punishment: ‘Punishment is the way in which society expresses its denunciation of wrongdoing and, in order to maintain respect for law, it is essential that punishment inflicted for grave crimes should reflect the revulsion felt by the great majority of citizens. It is a mistake to consider the object of punishment solely as deterrent, reformative or preventive.’, In Mahesh v. State of Madhya Pradesh, reported in (1987) 3 Supreme Court Cases 80, the Supreme Court of India, while considering the death sentence, observed: ‘It will be a mockery of justice to permit the accused to escape the extreme penalty of law when faced with such evidence and such cruel acts. To give a lesser punishment would render the justice system suspect and cause the common man to lose faith in Courts.’, In State of Karnataka v. Joseph Rodrigues, 2006 Supreme Court Cases online Karnataka 494, the High Court of Karnataka observed: ‘Even otherwise, the Court cannot shut its eyes to the obnoxious growing tendency of young persons resorting to corrosive substances like acid on girls, causing severe physical damage and mental trauma. In many cases the victim dies from severe burns or septicemia; if she survives, she lives with a grotesque disfigured appearance, often blind, a fate worse than death.’, In State of M.R. v. Bala alias Balram, reported in (2005) 8 Supreme Court Cases 1, the Supreme Court of India observed: ‘The rationale for advocating punishment commensurate with the gravity of the offence and its impact on society is to ensure that a civilized society does not revert to the days of eye for an eye and tooth for tooth. Not awarding a just punishment might provoke the victim or relatives to retaliate, which the criminal justice system seeks to prevent.’, In Ravji v. State of Rajasthan, reported in (1996) 2 Supreme Court Cases 175, the Supreme Court held: ‘It is the nature and gravity of the crime, not the criminal, which are germane for consideration of appropriate punishment. The Court will fail in its duty if appropriate punishment is not awarded for a crime committed against both the individual and society.’, While considering the quantum of sentence to be awarded to the convict, the law enunciated in the aforesaid judgments by the Supreme Court and the High Courts must be kept in mind., In the instant case, the brutal inhuman acid attack by the convict on the victim was an uncivilized and heartless crime committed on the evening of 1 February 2022 while the victim was returning home from her workplace. Evidence shows that the convict had obtained acid from accused No.2 on the pretext of erasing the victim’s name written on his chest, and had previously threatened the victim to disfigure her face if she did not agree to marry him. This demonstrates that the act was well‑thought, well‑planned and organized., During the arguments on quantum, the victim produced six photographs, three taken before and three after the incident. The photographs illustrate the severe disfigurement caused by the sulphuric acid, including exposure of bone on the right side of the forehead, and extensive damage to the nose, eyes and whole face. Despite two to three surgeries, the damage has not been repaired and full restoration appears unlikely., The counsel for the convict argued that the convict is young, a first offender, and therefore a lenient view may be taken to reform him and reintegrate him into society. He suggested that a reduced sentence would serve the purpose of rehabilitation., The Court understands the potential for rehabilitation of the young convict, but this must be balanced against the irreversible damage inflicted on the victim. The permanent scars on the victim’s face and psyche serve as a haunting reminder of the brutal act and forever alter the trajectory of her life. The tangible loss and lifelong emotional trauma suffered by the victim far outweigh any hypothetical chance of rehabilitation of the convict. A person capable of such hateful mentality and willing to commit such an act over trivial envy cannot be trusted to be reintegrated into society. Consequently, the Court is compelled to prioritize the sufferings of the victim over the convict’s potential for change and to take a resolute stance., Keeping in view the plight of the victim, one might feel that the ancient theory of ‘eye for an eye’ would meet the ends of justice, but such retributive justice is not permissible in our civilized society governed by law., The Learned Counsel for the convict relied on two judgments of the Supreme Court of India: Mohammad Giasuddin v. State of Andhra Pradesh, reported in 1977 All India Reporter 1926, and Pramod Kumar Mishra v. State of Uttar Pradesh arising from SLP (CRL) No. 2190/2023. In the latter judgment, the Supreme Court also referred to the judgment of Purushottam Dashrath Borate & Anr. v. State of Maharashtra (three‑judge bench), which emphasized the need for a stricter yardstick in sentencing for violent crimes against women as a deterrent., In view of the principle laid down in the aforesaid paragraph by the Supreme Court, courts are ordained to adopt a stricter yardstick while awarding sentences in cases of violent crimes against women to act as a deterrent., The Supreme Court of India, in a judgment dated 28 November 2018, Criminal Appeal No. 1469 of 2012 titled Suresh v. State of Karnataka, rejected the plea of a convict in custody for thirteen years seeking reduction of life imprisonment to a lesser sentence., The Bombay High Court, in a judgment dated 18 February 2016, Criminal Appeal No. 324 of 2007 titled Shri Kailas Sitaram and Anr. v. State of Maharashtra, where the trial court had awarded seven years imprisonment with a fine of Rs 2,000, held that the sentence was too meager and enhanced it to life imprisonment with a fine increased from Rs 10,000 to Rs 200,000. In another judgment, Mehashwar v. State of Maharashtra, a Division Bench of the Karnataka High Court upheld a sentence of life imprisonment and a fine of Rs 10 lakhs for an offence under Section 326A of the Indian Penal Code. In all these cases the convicts were first offenders with no criminal background., The victim has produced prescriptions, bills of treatment and an affidavit. According to the affidavit, she has undergone two to three major and minor surgeries in Chennai. She has also produced a photocopy of the sale deed whereby her mother Shaheena, along with her siblings, disposed of her share in a three‑storeyed house situated at Aram Masjid, Khanyar, on 31 March 2023 to Irfan Ahmad Najar, son of Ghulam Qadir Najar, for consideration of Rs 4,19,500. The affidavit states that she has incurred total expenses of Rs 48,26,279 for her treatment, including travel expenses to Chennai., It cannot be overlooked that acid‑attack victims require a series of costly plastic surgeries. Under Proviso 1 to Section 326A of the Indian Penal Code, the fine imposed on the convict shall be just and reasonable to meet the victim’s medical expenses. The victim has received Rs 3 lakhs as interim compensation from the District Legal Services Authority, Srinagar, and Rs 1 lakh from the civil administration, but has spent far more on treatment. Considering the expenses incurred and future expenses, a fine of Rs 40 lakhs is reasonable and genuine under Proviso 1 of Section 326A to defray the victim’s medical expenses., After careful consideration of the submissions and the nature of the attack, the permanent disfiguration caused by the corrosive substance, and the impact on the victim’s future life, I find that the convict does not deserve leniency and that only the maximum punishment of life imprisonment prescribed under law can do complete justice to the victim. Accordingly, the convict is sentenced to life imprisonment and a fine of Rs 40 lakhs for the offence punishable under Section 326A read with Section 34 of the Indian Penal Code. In default of payment of the fine, a warrant for levy shall be issued to the District Collector, Srinagar, under Section 421(1)(b) of the Criminal Procedure Code, authorizing realization of the amount as arrears of land revenue from the convict’s movable or immovable property. When the fine is recovered, it shall be paid to the victim as per Proviso 2 to Section 326A of the Indian Penal Code., In view of the huge amount the victim has incurred on her treatment and the amount required for further treatment, I deem it appropriate to recommend the case of the victim to the Member Secretary, Jammu and Kashmir Legal Service Authority, to award the maximum compensation to the victim under the Jammu and Kashmir Victim Compensation Scheme, 2019, subject to adjustment of the interim compensation already paid., A copy of the judgment shall be sent to the District Magistrate, Srinagar, under Section 365 of the Criminal Procedure Code., The convict, Sajid Altaf Sheikh (Rather), has been apprised of his right to prefer an appeal against the judgment of conviction and the sentence order, if he desires to do so. The copy of the judgment and the sentence order shall be provided to the convict free of cost.
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Criminal Appeal Numbers 1699/2011 – 2, Criminal Appeal Numbers 1699/2011 – 3, Criminal Appeal Numbers 1699 and 1914 of 2011, dated 27 January 2022, Vinod Chandran, Judge., If it is permissible in law to obtain evidence from the accused person by compulsion, why tread the hard path of laborious investigation and prolonged examination of other men, materials and documents? It has been well said that an abolition of this privilege would be an incentive for those in charge of enforcement of law to sit comfortably in the shade rubbing red pepper into a poor devil's eyes rather than go about in the sun hunting up evidence. (Stephen, History of Criminal Law, p. 442)., State of Bombay v. Kathi Kalu Oghad [1962 SCR (3) 10] Confessions may have an element of truth in it but it fails to persuade the Judges, in travelling the distance between 'may be true' and 'must be true'; the whole of which distance, as has been held in Sarwan Singh v. State of Punjab [1957] 1 SCR 953, must be covered by 'legal, reliable and unimpeachable evidence'., Inexplicable violence as a retaliatory measure against establishments of State, based on religion and community, often questions the secular credentials of a society; particularly of this State which proudly proclaims itself to be the most literate in all of the Country. The reverberations of the two Marad incidents, which remain a blot on the secular fabric of the State, is projected as the motive of the twin blasts which rocked Kozhikode city on the lazy noon of 03 March 2006, a Friday., Accused 1 to 9 were alleged to have conspired, planned and executed the twin blasts, for reason of bail having been denied to the accused in the second Marad incident, in which 136 of the 142 accused remained imprisoned, as under trials, for about four and a half years. A2 and A8 were absconding when the case went for trial, of whom A2 has now been arrested. A6 died and A7 was declared an approver, who gave evidence as PW1. A5 was not charge-sheeted. This left A1, A3, A4 and A9 to face trial in the two crimes registered, which were clubbed together while filing the final report and a consolidated charge levelled on the twin blasts. In the impugned judgment the above four accused are shown as one to four, but we refer to the accused from the array in the final report, since invariably the participation of the various accused are spoken of from that array., On 03 March 2006 there were two bomb blasts in Kozhikode Town, in quick succession between 12.30 p.m. and 01.00 p.m., at two locations inside the KSRTC and the Mofussil Bus Stands. Crime No. 80 and 81 of 2006 were registered respectively at the Kasba and Nadakkavu Police Stations, which were then taken over by the Crime Branch, Central Investigation Department and later by the National Investigation Agency. PW1 to PW58 were examined, through whom Exhibits P1 to P98 were marked. MO1 and MO2 series material objects collected from the scene of occurrence were marked by the prosecution. The defence marked Exhibits D1 to D26 and also examined DW1 to DW3., The Special Court (National Investigation Agency), Kerala, Ernakulam found A1 and A4 guilty of the offences under Section 16(1) and Section 18 of the Unlawful Activities Prevention Act, 1967 and they were convicted and sentenced to imprisonment for life and fine of Rs. 50,000 with default sentence of imprisonment for one year under each of the above provisions. They were also sentenced to three years imprisonment under Section 124(A) of the Indian Penal Code together with a fine of Rs. 10,000 with default sentence of three months and a further sentence of two years under Section 153(A) of the Indian Penal Code. A1 was further sentenced to imprisonment for life and fine of Rs. 50,000, with a default sentence of one year under Section 4(b) of the Explosive Substances Act, 1884. The first of the above two appeals is by A1 and A4 and the other by the National Investigation Agency against the acquittal of A3 and A9, which appeals were heard together., I. The Arguments:, Sri. Suresh Babu Thomas, learned Counsel, appeared for A1 and argued that A1 was not identified by anyone at the scene of occurrence and not even by the approver (A7), who was examined as PW1. The only evidence before the Court was that of the approver and the lack of identification demolishes the prosecution case. There were four persons in the dock and each should have been identified separately by pointing them out from the dock by their position, dress or stand‑out features. In the absence of such identification, the dictum in Vylali Gireesan v. State of Kerala [2016 KHC 204] applies squarely. The disclosure statements from Exhibits P17 to P24 are the confessions alleged to be made by A1 of the crime itself, which are inadmissible in evidence and by no stretch of imagination can be termed as a confession under Section 27 of the Evidence Act. It is pointed out that even according to the prosecution the motive was retaliation against the denial of bail to the accused in the second Marad incident, which occurred on 02 May 2003. The purchase of gelatin sticks was established in the year 2002, long before that. There is also ample evidence that the gelatin sticks are perishable and if not put to use immediately, will be rendered useless. There is not even a scrap of evidence to find A1 guilty of the offence. The case has been set up by the prosecution merely on surmises and conjectures, which the Trial Court swallowed without further ado and throwing to the winds the fundamental principles of criminal jurisprudence. It is pointed out that the charge under the Explosive Substances Act could not have been levelled, since Section 7 of the Act provides a consent of the District Magistrate from the year 2001 onwards, which has not been obtained., Sri. S. Rajeev, learned Counsel, appearing for A4 adopted the arguments of A1. The charge was specifically read to indicate the motive, which did not exist at the time of the alleged purchase of gelatin sticks. As far as A4 is concerned, PW1, the approver, does not identify him from the dock nor has he been alleged with any overt acts. It is pointed out that based on the confession statements, nothing was discovered and there was no concealment spoken of by the accused. Shinoj V. State of Kerala [2019 (8) KHC 862] is relied upon to argue that facts known to the police, even before information supplied of the accused, under Section 27 are inadmissible. Here, there was no concealment of any material object and what was pointed out as per disclosure statements are locations wherein the accused are alleged to have prepared, conspired and executed the crime which is totally inadmissible in evidence. The spot where the explosion occurred is admitted by onlookers and victims, including police personnel, which renders the disclosure statements valueless. There is nothing linking the respective accused to the actual crime; and the confessions alleged to have been made to police officers ought not to have been permitted to be led in evidence, nor could be relied on for convicting the accused. The investigating agency has carried out no investigation and has put words into the mouth of the accused, recorded them as disclosure statements, which is the only basis of the conviction. The conduct of the Court below is seriously assailed for having not considered the objections raised by the defence, in the course of chief‑examination regarding the admissibility of the confessions; which are quite a few in number. Reliance is placed on In Re: To Issue General Guidelines Regarding Inadequacies and Deficiencies in Criminal Trials v. State of Andhra Pradesh and others [(2021) 10 SCC 598]. It is pointed out that the learned Judge did not, even in the final judgment, consider the objections. As far as the approver's evidence is concerned, the learned Counsel relied on Sarwan Singh, Dagdu v. State of Maharashtra [(1977) 3 SCC 68] and Somasundaram v. State [(2020) 7 SCC 722]. It is asserted that PW1 was planted as an accused, to coerce him into being an approver, and he was earlier questioned by the State Police; with nothing elicited., Smt. Sonia Mathur, learned Senior Counsel appearing for the National Investigation Agency, argued for sustaining the judgment insofar as the conviction against A1 and A4. In the appeal filed by the National Investigation Agency, a reversal of the acquittal of A3 and A8 was urged. The learned Senior Counsel first emphasized the credibility of PW1 as also the corroboration of his testimony on material particulars. As per binding precedents, not every statement of the approver, but only the absolutely essential and material aspects of his testimony requires corroboration for accepting such evidence. On corroboration, it is specifically pointed out that PW4 and PW46, the reporters of the Calicut Times, spoke of the call received from PW1. PW29, PW31 and PW34, officials of BSNL, by their testimony corroborated the fact of the call made to the Calicut Times newspaper from the number of a booth belonging to PW12. PW1 also spoke of having seen two plastic bags with A1 when he reached, on summons, at the mosque. PW6 to PW8 and PW13 corroborated PW1's statement by deposing that the bombs were found in black plastic covers. PW47, the forensic expert, spoke of remnants of black plastic found in the materials collected from the site of explosion; further corroboration., The prior conduct of A1 has been fairly established by PW24 to PW26, who procured gelatin for A1. PW24, though, spoke of one Ismail having approached him for gelatin sticks, clearly identified A1 as the person accompanying Ismail. It is clarified by the learned Senior Counsel that the discrepancy pointed out by the defence, insofar as the procurement of gelatin sticks proved by PW24 to PW26, having been in the year 2002, long before the alleged motive projected by the prosecution, is irrelevant. It is the categorical submission of the learned Senior Counsel that the prosecution never had a case that the very same gelatin sticks were used in the explosion, which is the subject matter of the offence alleged. PW24 to PW26 were brought before the Court only to establish that A1 was a person having access to such explosive substances. We pause here to notice that in the written submissions placed before us after close of arguments, it is asserted that the gelatin sticks purchased were used in the subject explosion and that the durability or effectiveness of gelatin, after a period, was never put to the scientific experts examined by the prosecution. We will deal with this contradiction in terms later in the judgment., As for A4, he is clearly identified by PW18, who is the witness to the point out memo. Reference is also made to the fact of purchase of plastic pot as spoken of by A1, relevant under Section 8 of the Explosive Substances Act. The learned Senior Counsel would argue that if the disclosure statements are not admissible under Section 27 of the Evidence Act, even then those are relevant facts under Section 8 as conduct of the accused. The learned Counsel would take us to paragraph 142 of the trial Court judgment and the judgment cited therein to canvass that position. The learned Senior Counsel also relies on Prakash Chand v. State [(1979) 3 SCC 90], State (NCT of Delhi) v. Navjot Sandhu [2005 (11) SCC 600] and A. N. Venkatesh v. State of Karnataka [(2005) 7 SCC 714]. It is asserted that there is nothing brought out by the accused to doubt the credibility of the approver, who was examined as PW1. There is also corroboration in material particulars, which definitely would vary from case to case. In the present case, the corroboration pointed out is sufficient to inspire the confidence of the Court so as to convict the accused. The learned Senior Counsel relied on a number of decisions to persuade this Court to accept the evidence of the approver/accomplice as credible and trustworthy and to bring the evidence of disclosures under Section 27, or otherwise, relevant under Section 8 of the Evidence Act., As for the appeal against acquittal, the Trial Court erred in the clear acquittal handed down to A3 and the benefit of doubt conferred on A9. PW22 has identified A3 and so has PW15. PW54 is the investigating officer who arrested A3 and there is sufficient corroboration from PW32, another police officer, who had arrested A3 in connection with another case. It is pursuant to the disclosure made by A3 that the site of the experimental blasts came to the notice of the investigating agency as pointed out by A3 himself; again relevant under Section 27 or otherwise under Section 8 of the Act. A3 also pointed out the place where he had taken classes for others and demonstrated the preparation of a bomb; specifically in the room where A2 was staying. PW1 speaks of A9 and his involvement in the placing of the bomb at one of the locations. There was no valid reason for A3 and A9 to be acquitted., Sri. Arjun Ambalapatta, learned Prosecutor for the National Investigation Agency, specifically pointed out that the discovery of the phone booth from which the call was made was only after the arrest of PW1. In fact the informal response from BSNL as received by PW53 is the one produced as Exhibit P41 by PW34. The document shows only STD and ISD calls and not local calls. The call details with respect to the calls made to the Calicut Times revealed the phone number, which clearly corroborates the version of PW1 with respect to the call made by him to the office of the newspaper. These call details were revealed only from Exhibits P30 and P31 issued in 2010., The learned Counsel for A1 and A4, in reply, pointed out that there is no address proof of the subscribers of the telephone number from which the calls to the Collectorate or Calicut Times were made. Learned Counsel Sri. P. C. Noushad appearing for A3 and A9 pointed out that there is no evidence regarding the conspiracy. As far as the application of Section 27, there is no fact, much less a material object discovered from the places pointed out by the accused, which could be connected to the crime. The experimental explosions have not been established nor is there anything discovered from the site of the alleged experiments or the room pointed out in KL Arcade, much less at the residence of A2, A3 and A8. The identification made of the accused is only at the time of pointing out memos, which does not connect them to the crime. As far as A9 is concerned, he was arrested on 12 January 2004, when he was in the custody of the police in another crime and was never even taken into custody for interrogation. It is submitted that the National Investigation Agency had merely planted A9, which is evident from the manner in which Exhibit P58 was filed before the Court, adding him as an accused only to coerce him into becoming an approver. When the said attempt failed, the National Investigation Agency made another accused, A7, the approver., II. The Trial Court Judgment: The Trial Court raised six relevant issues for consideration: (i) Whether the accused entered into a conspiracy to plant and explode bombs in the two locations; (ii) Whether in furtherance, A1 procured explosive substances to manufacture bombs; (iii) Whether A1 transported the bombs to Kozhikode and despatched two separate teams to plant the same; (iv) Whether the bombs were planted in the two locations; (v) Whether the bombs so planted exploded, thus creating communal disharmony and enmity between communities; and (vi) Whether it comes under the definition of a terrorist act as defined in the Unlawful Activities Prevention Act., The Trial Court noticed the requirement of corroboration and found the approver's testimony creditworthy and reliable. The first element of corroboration was found in the Section 164 statement made by PW1 before the magistrate. The fact that the coin box from which PW1 made the telephone call to Calicut Times and the pointing out of the two locations where the accused had assembled before and after the explosion as also the receipt of call by PW4 was emphasized. The various disclosures made by A1, the failure of the defence to cross‑examine PW1 on his statement that A1 told him that the plastic covers contained bombs intended to be planted at the two bus stands, made the evidence of the approver reliable, held the Court below. The evidence of PW58 on the pointing out memo was found to be significant; which conduct of the accused disclosed, being relevant as conduct influenced by the fact in issue. A1's pointing out the Cannannore Plastic House and the identification made by PW23 was specifically noticed. The evidence of PW24 to PW26 and the identification made by PW49, son of PW24, at the time of pointing out memo, according to the trial court offered further corroboration. The evidence of PW24 to PW26 proved beyond doubt that A1 had access to gelatin sticks. A4 also independently led the investigating officer to the locations where the accused converged before and after the explosions. A4 then pointed out the location of the booth from which a call was made to the Collectorate., As far as A3 and A9 are concerned, it was found that there was no proof of their involvement. A3 had pointed out the room in which A2 resided, where allegedly the bombs were manufactured and the location (a beach) where experimental explosions were carried out. Since there was nothing discovered from the room and the beach, there was nothing incriminating as far as A3 is concerned. As far as A9 is concerned, it was held that but for the 'trained' version of PW1, the co‑accused, there was nothing incriminating revealed on investigation. A9 was not even taken into custody and there is no information supplied by him which led to the discovery of any relevant fact. But for the bland statement of A9's presence before and after the planting of the bomb, nothing has been brought out in evidence., III. The Prosecution Case: The prosecution case in short is that A1 to A4, A6, A8 and A9 together conspired to carry out explosions in retaliation of denial of bail to the accused in the second Marad case. A1 purchased gelatin sticks to that end in 2004 and along with A2 and A3 conducted experimental explosions at Maidanappally Beach in Kannur and A2 also carried out a demonstration of bomb making after a religious class in A2's residence. Later A1 made two bombs and kept the same in a room in which A2 was residing. On 03 March 2006 A1 summoned PW1 (A7), who on reaching Markaz Masjid saw A1 along with A2, A4, A6, A8 and A9 standing under the staircase of the masjid. There were two plastic covers, which A1 said were bombs to be planted at the KSRTC and the Mofussil Bus Stands. A1 also instructed that the fact of the bombs being placed in the bus stands should be informed to the office of the Calicut Times newspaper and the Collectorate. A1, A4 and A9 proceeded to the KSRTC Bus Stand with one of the bombs and A2, A6 and A8 to the Mofussil Bus Stand with the other. PW1 then went to an STD booth from where a call was placed to the office of Calicut Times. A4 after planting the bomb went to an STD booth and placed a call to the Collectorate., On being informed of the threatening calls, the police swung into action to evacuate both the bus stands on the directions of the Assistant Commissioner. The bomb in the KSRTC Stand exploded before the police reached and in the Mofussil Stand, while they were searching for it. Minor injuries were caused to a porter at the Mofussil Bus Stand and a policeman. The six persons who placed the bombs later went to Pattalam Mosque and from there dispersed. These are the circumstances which were attempted to be proved by the prosecution, for which strong reliance was placed on the disclosure memos, the point out memos and the identification of the accused at the time the alleged disclosures were pointed out. The prosecution also placed heavy reliance on the call details of the specific calls made to the office of Calicut Times and the Collectorate. The cornerstone of the prosecution case is the evidence of the approver PW1, whose testimony is said to be corroborated on material aspects by the disclosures, the discoveries, the resultant identification and the call details., IV. The Prequel, the Blast and the Investigation: PW2 is the camp clerk of the District Collector who attended an incoming call in the Collector's personal phone, number 2371400, at around 12.00 noon. The Collector was not in the office and hence he attended the phone. On picking up the telephone, he was informed that a bomb was placed at the KSRTC Bus Stand and it would burst in a few minutes. He was told, 'you can do whatever you want'. When an attempt was made to get the details of the caller, the phone was disconnected. While PW2 was attempting to inform the Assistant Deputy Magistrate (PW3) on the intercom, again a phone came with the very same message. It was the same person who called both times and immediately the matter was informed to the Assistant Deputy Magistrate on the intercom. PW3 affirmed the information passed on to him by PW2. PW3 immediately informed the Assistant Commissioner, Kozhikode North (PW27). PW3 was later informed that a bomb blast occurred at the KSRTC Bus Stand and he immediately proceeded to the spot. On reaching the spot he was informed that another bomb blast occurred at the Mofussil Bus Stand, where he also visited., PW4, at the relevant time, was working as a reporter at Calicut Times. At around 12.30 p.m. on 03 March 2006, she attended the call which came on the phone number 2700834 of Calicut Times. On picking up the telephone, the first query was whether it was the newspaper office, which she affirmed. The caller then stated that bombs were placed at the KSRTC and Mofussil Bus Stands and within five minutes they would explode. When the caller was queried as to who he was, he responded that he was the person who placed the bombs. He also cautioned her that the information should not be taken as a joke and they were very serious and it was a continuation of the Marad incident. The narration of what the caller told PW4, according to her, is far more than that stated by PW1. After the phone was disconnected, PW4 informed her superiors, who in turn asked her to inform the Special Branch. PW4 called the Special Branch and also the Control Room of the Police. The newspaper also deputed another reporter, Bijush, to cover the incident. Later, Bijush informed her of the bomb blast at both locations. Her Section 164 statement was marked as Exhibit P8 and the news reported was marked as Exhibit P9. Exhibit P9 is a report of the same day; since the Calicut Times is an evening newspaper. In the news report, the Marad incident was not referred to, which according to PW4 was to avoid any adverse consequences, quite justified. What was reported was the bomb blast being a continuation of other recent incidents. The discrepancy of the caller having spoken of the blast occurring in half an hour, as against PW4's deposition that it would occur in five minutes, was explained by her as occasioned due to the anxiety on receiving such a call, which according to her was her first experience, again justified. PW4 also said that the report was prepared in association with the Editor‑in‑charge, PW46, and Bijush. PW46 corroborated all the material details spoken on by PW4. He also marked the news which appeared on 04 March 2006 in Calicut Times as Exhibit P60. He spoke of having later received other threatening calls in their office, for reason of Calicut Times having 'celebrated' the incident. PW46 marked Exhibit P59, by which the National Investigation Agency seized the copies of the extracts of Calicut Times dated 03 March 2006 (Exhibit P9) and 04 March 2006 (Exhibit P60). In Exhibit P60 the highlighted news specifically spoke of the investigation being centred around the telephone booth in Mavoor Road; which we will deal with when looking at the proof of calls., The FIRs were registered suo motu by the police officers who first reached the blast sites. PW35, the Circle Inspector of Nadakkavu Police Station, on being directed by PW27, rushed to the KSRTC Bus Stand. Near the bus stand, in front of the neighbouring Sagar Hotel, he heard the sound of a blast. The area was covered with smoke and dust and the glass window panes of the Sagar Hotel cracked on impact and fell down. The people gathered were removed and a scene guard was put in place. Later, on being informed of another bomb planted in the Mofussil Bus Stand, the Kasaba Sub Inspector (PW38) and party were directed to proceed there. PW35 then returned to the police station and registered Crime No. 81 of 2006 as per the Explosive Substances Act, which was marked as Exhibit P44. He returned to the blast site, prepared the scene report (Exhibit P11), collected the remnants of the explosion which were later sent to court. He also made a request for the call details of phone number 2371400 of the Collectorate., PW38 was the Principal Sub Inspector of the Kasaba Police Station, who was on patrol duty and rushed to the KSRTC Bus Stand on being informed of the bomb blast. Reaching the spot, he saw PW35, on whose directions he proceeded to the Mofussil Bus Stand, where another bomb was suspected to have been planted. At the Mofussil Stand, he used the public address system in the jeep to request the people gathered there to move out. The police party also physically urged the people to go out of the bus stand and ensured the vehicles also were taken out. While the police party, along with the porters at the bus stand, were searching for the bombs, they detected a plastic carry bag on the drainage on the south‑eastern portion of the stand. The information was immediately passed on to PW35 and request was made for the Dog Squad and Bomb Squad. At about 1.05 p.m., the cover exploded and the entire area was covered with smoke and other remnants of the explosion. One of the policemen (PW37) was injured in the explosion and so was a porter (PW13). PW38 put in a scene guard and proceeded to the police station, where he registered Crime No. 80 of 2006, the FIR of which is marked as Exhibit P47. Both the witnesses speak of the investigation having been taken over by the Crime Branch., PW53, at the relevant time, was the Assistant Police Commissioner, DCRB, Kozhikode City. He was put in charge of investigation of the two crimes, registered respectively at Nadakkavu and Kasaba Police Stations, which he undertook from 03 March 2006 to 07 June 2006. PW53 got the scene of crime inspected by a forensic science laboratory expert and also carried out investigation with respect to the calls received at the Collectorate and at the Calicut Times by examining the STD booths in and around the bus stand. The material objects collected from the scene of occurrence were forwarded to the court. He made arrangements to get the sketch prepared of both the locations. An informal reply was received from BSNL regarding the calls, but not authenticated. On 07 June 2006, the case was transferred to the Crime Branch and PW54 took over the investigation. PW54 was in charge of the investigation between 13 June 2006 and 17 December 2009. The Crime Branch re‑numbered the earlier crimes as CBCID Crimes 183 and 184 of 2006. The first arrest made was of A3, on 22 July 2009. A3 was in the custody of PW32, the investigating officer of the Ernakulam Collectorate Blast Case. According to PW32, when A3 was questioned he admitted to have been involved in the Kozhikode Bus Stand twin blast case, which was informed to PW54. The evidence of PW32 regarding the confession made by A3 is, of course, not admissible in evidence., PW54, after the arrest of A3, filed a report dated 23 July 2009 before the court, arraigning A1 to A5 as the accused in the case. A6 and A7 were included in the array of accused on 28 July 2009 and A8 on 06 August 2009. A3 is said to have made Exhibit P27 disclosures on the basis of which Exhibit P74 report dated 09 December 2009 was made before the court including the provisions of the Unlawful Activities Prevention Act. Exhibits P63 and P64, point out memos of A3, were also marked.
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From the disclosure made by A3, Room No.4 in the first floor of K. L. Arcade earlier occupied by A2, Mydanappally Beach, Kannur and the residence of A2 are said to have been discovered., PW45 the Superintendent of Police, National Investigation Agency took over the investigation from the Central Bureau of Criminal Investigation Department in December 2009 and then PW58 was the Chief Investigating Officer from 19.02.2010. PW57 issued Exhibit P40 letter to the BSNL requesting for particulars of seven telephone numbers. It was PW45 who arrayed A9 as per Exhibit P58 report dated 12.01.2010. A1 and A4 were arrested on 24.02.2010. They were in judicial custody at Bangalore, in another blast case; having been Criminal Appeal Numbers 1699/2011 and 29 arrested by Meghalaya Police on the India‑Bangladesh border. A1 was taken into police custody on 01.03.2010 for a period of ten days. On 02.03.2010 A1 is said to have made Exhibit P17 Disclosure Memo and the location of such disclosures were pointed out by Exhibit P18 dated 02.03.2010 and Exhibit P19 dated 03.03.2010. Later, on 05.03.2010, he made Exhibit P20 disclosure of purchase of gelatin sticks, which location was pointed out by Exhibit P21 memo dated 06.03.2010. A4 was taken into police custody on 09.03.2010, who made disclosures as per Exhibit P23 dated 10.03.2010 and pointed out the same by Exhibit P24 of even date. PW57 picked up A7 (PW1) for interrogation on his arrival at Nedumbassery Airport on 19.03.2010. He also made disclosures as per Exhibit P7 dated 24.03.2010 and Exhibit P25 dated 24.03.2010. It is these disclosures that the prosecution relies on to corroborate the testimony of A7, who later turned approver and was examined as PW1., Before we look at the approver's evidence, we would first go into the preparation made by the accused, as alleged by the prosecution; in which the approver had Criminal Appeal Numbers 1699/2011 and 30 no role. A1 is said to have purchased gelatin sticks from PW24 as per his disclosure statement at Exhibit P20 dated 05.03.2010. The disclosure statement is to the effect that he can identify the house of PW24, where, along with Ismail (CW60), he obtained gelatin sticks/detonators during the year 2004 and out of the same; 50 in number, some gelatin sticks were used for preparation of bombs at Kannur, for explosion in the year 2006 at Kozhikode. The point out memo dated 06.03.2010 is produced as Exhibit P21, which contains a recital that A1 pointed out the sitting room, where he obtained 50 gelatin sticks/detonators in the year 2004. The learned Senior Counsel for the prosecution categorically stated that it was never their case that the gelatin sticks purchased from PW24 was used in the explosion at Kozhikode. The disclosure statement recorded by the National Investigation Agency and the point out memo are to the contrary., In this context, we have to notice that PW53, the Investigating Officer who first carried out the investigation, deposed on motive; that the blasts were engineered by the Criminal Appeal Numbers 1699/2011 organization called National Democratic Front (NDF) to tarnish the image of the United Democratic Front (UDF) Government, which was in office. His statement recorded by the National Investigation Agency, that the suspicion was against NDF, a Muslim Fundamentalist Organization, which had strange relationship with both the UDF and CPI(M) was not what he intended to say. He said that the statement made by him was regarding 'both the Government and the CPI(M)'. From his deposition it is clear that the Government at the time of the blast was led by the UDF and on 18.05.2006, the Left Democratic Front came to power. PW58, the Investigating Officer of the National Investigation Agency, asserted in cross‑examination (page 188) that in 2002, the 5/6 gelatin sticks purchased from PW26 was used in the explosion by A1 as revealed in investigation. Again, in page 192 of the very same cross‑examination, it was stated that the gelatin sticks and detonators were purchased from PW24. Further deposition was that, again six gelatin sticks were purchased in 2002 which was used in Kozhikode bomb blast as revealed in his investigation. The case of the prosecution, as revealed from the deposition of the Investigating Officer, is that the gelatin sticks purchased from PW24 was used in the Kozhikode blasts. It is not, as argued by the learned Senior Counsel for the prosecution, that PW24 to 26 merely established the access A1 had to gelatin sticks., Be that as it may, now we would examine the disclosure memos of purchase of gelatin sticks juxtaposed with the evidence of PW24 to 26. The disclosure memo speaks of 50 gelatin sticks purchased from PW24, which was received on hand, in the sitting room of the house of PW24, in the year 2004. The evidence of PW24 to 26 is that 5‑6 gelatin sticks were purchased in the year 2002 and not 2004. PW24 spoke of having close acquaintance with one Ismail (CW60), who was never examined before the Supreme Court of India. Ismail is said to have approached PW24, for gelatin sticks for the purpose of breaking rocks in his well. PW24 was carrying on a crusher unit, whose Supervisor, PW25, was entrusted with the task of getting the gelatin sticks. PW24 identified A1 from the dock as the person standing second; whom he affirmed as having accompanied Ismail in the year 2002, when Ismail came for gelatin sticks. On the identification, in chief‑examination itself he stated that he was not present when the point out memo, Exhibit P21 was prepared at the time of search made in his house, on 03.06.2010. He categorically stated that afterwards, he was summoned to the office of the National Investigation Agency, where he was shown the photograph of A1. While expressing strong reservation regarding the identification made at the time of point out memo, to have any relevance in connecting the accused with the crime, it has to be stated on the facts here, that the identification of A1 by PW24, before the Supreme Court of India, is put to peril by the statement made by PW24 of having been shown the photograph of A1, by the National Investigation Agency., The evidence of PW25 and PW26, the Supervisor of PW24 and the supplier of gelatin sticks respectively, has also to be looked into. PW25 had acquaintance with Ismail and admitted to have been the Supervisor of PW24's crusher unit. He spoke of PW24 having approached him with two persons, of whom one was Ismail, who wanted gelatin sticks to blast the rocks in his well. PW25 approached PW26, who had a quarry, from whom 6 to 7 gelatin sticks were purchased. He took the gelatin sticks to the crusher unit of PW24, where he could not find Ismail or the other person. While proceeding to PW24's house, he saw Ismail and the other person standing near the 'Vilangu School' and he handed over the sticks to Ismail. He does not remember who the person accompanying Ismail was and does not identify A1. PW26 also affirmed PW25 having purchased 5 to 6 gelatin sticks from him. As we noticed, PW24 to PW26 stated the purchase to be in 2002, quite contrary to the disclosure statement of the purchase having been in 2004. The disclosure statement is also to the effect that the gelatin sticks were handed over to A1 in the sitting room of PW24; which is belied by the evidence of PW25, who deposed the sticks having been handed to Ismail on the road leading to PW24's house. Pertinently, the disclosure is of purchase of 50 sticks while the witnesses speak only of 5 to 6 gelatin sticks. The Investigating Officer, PW58, attempted to cover up in cross‑examination, by saying that earlier 50 sticks were purchased and later 5 to 6; which were used in the Kozhikode blast. But two such purchases are not spoken of by the witnesses., The defence had the contention that the purchase was long before the Marad incident itself and the motive as specifically spoken of in the charge‑sheet is not established by PW24 to PW26, who were involved in the purchase. We need not dwell upon motive, since obviously the call received in Calicut Times spoke of the continuation of the Marad incident, as spoken of to PW4. The investigation floundered insofar as not establishing the source of the materials used for explosion. Exhibits P20 and P21, in so far as they record the gelatin sticks having been used in the explosion, are in the nature of confession of the crime itself, to the Police, while in their custody, which is inadmissible under Sections 25 and 26 of the Indian Evidence Act. The purchase taken independently is not established to be by A1 and Ismail (CW60) was not examined before the Supreme Court of India., The further preparation alleged is of two experimental blasts carried out by A1 and A3 and the bombs kept in the room of A2; both of which, according to the prosecution, was first spoken of by A3. A3 was acquitted by the trial court and we discuss this evidence in the context of the appeal against acquittal. The culpability of A1 was also found on the ground of disclosure of the room of A2; which discovery had already been made through A3. A3 was arrested by PW54 on 22.07.2009 and was later taken to police custody. As per Exhibit P27 dated 29.07.2009, A3 pointed out Room No. 4 on the first floor of one 'K L Arcade' where A2 was residing. On seeing the room locked, PW21 the owner was summoned, who opened the lock. PW54 also searched the room which did not yield any incriminating material. Again A3 was taken into police custody and by Exhibit P64 dated 25.08.2009, he pointed out a spot in Mydanappally Beach, Kannur, where himself and A1 carried out experimental explosions twice, using pipe bomb. Later, A3 also pointed out the house of A2, where he carried out a demonstration of bomb making, as per Exhibit P63 dated 25.08.2009. Nothing tangible, regarding the information supplied was received from both the locations. PW54 also deposes that he carried out a search of the houses of all the accused; A1 to A8, who were then arrayed as accused, but obtained nothing incriminating from any of these places. There is absolutely no evidence produced on the preparation and what is proffered fails to impress us. The application of Section 27 and Section 8 we would deal with later., Precedents on the approver's testimony: A. Deivendran v. State of Tamil Nadu [1997(11) SCC 720] and a number of other decisions were placed before us to bring home the object behind Section 306 of the Criminal Procedure Code. It is trite that the dominant object is to ensure that offenders in heinous and grave offences do not go unpunished and when there is insufficient evidence, one among the many accused may be granted pardon, so that the others be punished appropriately. It is also trite that there is no rule that the approver must make inculpatory statements to be considered an accomplice and a reliable witness., Sarwan Singh [supra] dealt with a conviction under Section 302 based on the approver's evidence. It was held that though an accomplice is a competent witness under the Evidence Act, his participation makes his evidence tainted, unless the same is corroborated on material particulars. It was also held that such corroboration need not be on all the material particulars, covering the entire prosecution story. But all the same, it would not be safe to act upon corroboration of minor particulars or incidental details. The Hon'ble Supreme Court also laid down a double test, first determining whether the approver/accomplice is a reliable witness and then examining the question of sufficient corroboration. Such tests were specified deeming the evidence of the approver to be weak and tainted. Therein, the approver was found to be not reliable and his evidence, at least against one of the accused persons, wholly discrepant., In Piara Singh v. State of Punjab [1969(1) SCC 375] the challenge was insofar as one of the co‑accused having been acquitted, which was contended as sufficient to demolish the approver's evidence as such. The Hon'ble Supreme Court found that the High Court acquitted one of the accused for reason of no legal corroboration of evidence against that accused being available. This, it was held was quite different from saying that the approver's evidence against that accused was false. Their Lordships referred to Sarwan Singh [supra] and reiterated the double test to be applied in appreciation of the approver's evidence, i.e., the assessment of reliability and credibility of the witness and then sufficient corroboration, which again was held to be not essential to cover the entire prosecution case., Shankar v. State of Kerala [1994(4) SCC 478] reiterated the above principle and held that independent corroboration need not be of such a high quality which would justify a conviction on that material itself. But the requirement for corroboration was emphasized, which only would commend the Court to accept the story of the accomplice and satisfy itself that it is reasonably safe to act upon such evidence. As has been held in Ravinder Singh v. State of Haryana [1975 (3) SCC 742] 'certain clinching features of involvement disclosed by an approver appertaining directly to an accused, if reliable, by the touch stone of other independent credible evidence would give the need and assurance for acceptance of his testimony on which a conviction may be based' (sic). The approver is an accomplice to crime, who was termed to be a most unworthy friend, who bargained for his immunity and hence his worthiness and credibility should be proved in Court., Dagdu & Ors. v. State of Maharashtra [(1977) 3 SCC 68], Sitaram Sao v. State of Jharkhand [(2007) 12 SCC 630] and Mrinal Das v. State of Tripura [(2011) 9 SCC 479] are decisions which considered the interplay of Section 133 and Section 114(b) of the Evidence Act which provisions are extracted here under: Section 114. Court may presume existence of certain facts: (b) That an accomplice is unworthy of credit, unless he is corroborated in material particulars; Section 133: Accomplice – An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice., Dagdu [supra] considered an eerie case; where five small girls, an one‑year‑old infant and four women were murdered, allegedly to satiate a deity in the hope that a treasure trove, believed to be hidden in the property, would be delivered to the perpetrators of the crime. There were two approvers in the case, one of whom was found a worthless witness, whose entire story was incredible and abounded in contradictions of the grievous kind. His evidence was rejected on the finding that he had mixed a ton of falsehood with an ounce of truth. The other witness, having tarred himself with the same brush as the accused and having confessed to a leading role in the commission of first four murders, was found to be a reliable witness. Applying the second of the twin tests, their Lordships looked for corroboration from an independent source; despite finding that there were gross improvements made from the earlier version, making his evidence suspect and uninspiring. There was no corroboration found from the evidence of other witnesses, for reason of which the second approver's evidence was also rejected in toto., Considering the above extracted provisions of the Evidence Act it was held so in Paragraph 21: There is no antithesis between Section 133 and Illustration (b) to Section 114 of the Evidence Act, because the illustration only says that the Court may presume a certain state of affairs. It does not seek to raise a conclusive and irrebuttable presumption. Reading the two together the position which emerges is that though an accomplice is a competent witness and though a conviction may lawfully rest upon his uncorroborated testimony, yet the Court is entitled to presume and may indeed be justified in presuming in the generality of cases that no reliance can be placed on the evidence of an accomplice unless that evidence is corroborated in material particulars, by which is meant that there has to be some independent evidence tending to incriminate the particular accused in the commission of the crime. It is hazardous, as a matter of prudence, to proceed upon the evidence of a self‑confessed criminal, who, insofar as an approver is concerned, has to testify in terms of the pardon tendered to him. The risk involved in convicting an accused on the testimony of an accomplice, unless it is corroborated in material particulars, is so real and potent that what during the early development of law was felt to be a matter of prudence has been elevated by judicial experience into a requirement or rule of law. All the same, it is necessary to understand that what has hardened into a rule of law is not that the conviction is illegal if it proceeds upon the uncorroborated testimony of an accomplice but that the rule of corroboration must be present to the mind of the Judge and that corroboration may be dispensed with only if the peculiar circumstances of a case make it safe to dispense with it., Sitaram Sao [supra] referred to various decisions of the Hon'ble Supreme Court and specifically noticed Jnanendra Nath Ghosh v. State of West Bengal (MANU/SC/0055/1959) wherein an approver was termed as a self‑confessed traitor. It was held so in Paragraph 26: Section 133 of the Evidence Act expressly provides that an accomplice is a competent witness and the conviction is not illegal merely because it proceeds on an uncorroborated testimony of an accomplice. In other words, this section renders admissible such uncorroborated testimony. But this section has to be read along with Section 114 Illustration (b). The latter section empowers the court to presume the existence of certain facts and the illustration elucidates what the court may presume and makes clear by means of examples as to what facts the court shall have regard to in considering whether or not maxims illustrated apply to a given case. Illustration (b) in express terms says that an accomplice is unworthy of credit unless he is corroborated in material particulars. The statute permits the conviction of an accused on the basis of uncorroborated testimony of an accomplice but the rule of prudence embodied in Illustration (b) to Section 114 of the Evidence Act strikes a note of warning cautioning the court that an accomplice does not generally deserve to be believed unless corroborated in material particulars., Encapsulating the dicta in the various decisions regarding the satisfaction to be arrived at with respect to approver's evidence Sitaram Sao (supra) held; first, there need not be an independent confirmation of every detail of the crime, secondly, the corroboration as available from independent evidence must not only make it safe to believe the witness's story, but must also in some way reasonably connect or tend to connect the accused with the crime, by confirming in some material particular, the testimony of the accomplice, thirdly, the corroboration is to come from an independent source and necessarily not from another approver and fourthly, the corroboration need not be direct evidence but could also be circumstantial evidence. Mrinal Das [supra] also reiterated the above principles based on Section 133 and 114(b)., Somasundaram [supra] culled out the principles in the various decisions in paragraph 65 as follows: The combined result of Sections 133 read with illustration (b) to Section 114 of the Evidence Act is that the Courts have evolved, as a Rule of prudence, the requirement that it would be unsafe to convict an Accused solely based on uncorroborated testimony of an accomplice. The corroboration must be in relation to the material particulars of the testimony of an accomplice. It is clear that an accomplice would be familiar with the general outline of the crime as he would be one who has participated in the same and therefore, indeed, be familiar with the matter in general terms. The connecting link between a particular Accused and the crime, is where corroboration of the testimony of an accomplice would assume crucial significance. The evidence of an accomplice must point to the involvement of a particular Accused. It would, no doubt, be sufficient, if his testimony in conjunction with other relevant evidence unmistakably makes out the case for convicting an Accused., An approver is termed as a most unworthy friend, a self‑confessed criminal and traitor, by his very conduct of involving in a crime and then cheating on his friend(s). An approver thus is of questionable character and assumes a dubious persona, who exudes mistrust. It is hence, by the above precedents it was held that, though not absolutely necessary, it is always prudent to look for corroboration of the approver's testimony, before entering a conviction; not on all material aspects of the prosecution case, but at least so much as to inspire the confidence of the Court to accept that evidence, which fundamentally is 'weak' and 'tainted'. The Hon'ble Supreme Court also mandated the twin test of examining first, the credibility of the approver and then the aspect of corroboration, at least on some material particulars; which need not be of the highest quality and could also include circumstantial evidence. Though a rule of prudence, the Apex Court held that judicial experience has now hardened the rule into a requirement of law., The narration of PW1, the approver before the Supreme Court of India, begins with his acquaintance with A2, A6 and A8 who were not standing trial and hence not before the Court. Two of them were absconding and A6 died in an encounter at Kashmir as spoken of by PW58, the last of the Investigating Officers, who filed charge sheet. PW1 also claimed that he was acquainted with A1 who was introduced to him by a neighbour, Abdul Rahim, who also was killed in an encounter at Kashmir. He was introduced to A1 in a nearby Mosque, by the end of 2005 and later he saw A1, two or three times when he went to a religious class at Parappanangadi. PW1 saw A4 last on 03.03.2006. On the previous day, A1 called PW1, over the telephone and instructed him to collect the phone numbers of the Collectorate, Calicut Times and the SP's office from the internet. A1 also instructed PW1 to ask A9 to call A1, which request he passed on to A9. PW1 did not bother to look up the phone numbers and on the next day when A1 called, he told him that the said numbers can be obtained from any book stall., When A1 called him on the crucial day, he was attending a computer class at one Logic Software Solutions and the time was around 10.30 a.m. PW1 asked A1 to come to Markaz Masjid at Kozhikode and when he reached there, he saw six persons, A1, A2, A4, A6, A8 and A9. He was acquainted with A1 and A9 and the other four were introduced to him by A9. PW1 saw two black plastic/polythene covers, which A1 said were bombs, he made and brought from Kannur, which are to be placed at the Mofussil and KSRTC Bus Stands Kozhikode. A1 also said that the measure was in retaliation to the denial of bail to the accused Muslims in the Marad case. The six persons were divided into two groups, one comprising of A1, A4 and A9 and the other comprising of A2, A6 and A8. PW1 was asked to inform Calicut Times about the bombs and when both the groups left with the bags, he proceeded to the Booth in Gulf Bazar, which was about 500 meters from Markaz Masjid. The time was around 12.30 and he used the coin box in the Booth to call the Calicut Times Newspaper office. A lady attended the phone and he told her that: 'We have placed two bombs at the Kozhikode Mofussil Bus stop and KSRTC Bus Stand, which will explode within five minutes'. He also told her that this was in protest of the Marad incident. PW1 put down the phone without listening to the response of the lady on the other side. PW1 then went to Pattalam Mosque which was around 300 meters from the Booth as instructed by A1, who was also standing outside. PW1 left, informing A1 that he was to attend a Spoken English class in the Stadium building. When he reached the Spoken English class he heard that there were two explosions in the two locations at Kozhikode., Later in 2008, he left for Gulf in search of a job and came back only in 2010 when he was arrested from the Nedumbassery Airport. He was taken to the guest house at Kozhikode and later produced before the Supreme Court of India. He gave Exhibit P1 application for permission to be made approver and also gave his statement before the Additional Judicial First Class Magistrate, Ernakulam dated 31.03.2010, Exhibit P2. On 02.09.2010 again an application was submitted before the Sessions Court as Exhibit P3 to turn approver. As instructed by the Investigating Officer, when he was in police custody he agreed to point out the places he went to at Kozhikode on the day of the blasts; pursuant to which he said that he had gone to Markaz Masjid, Coin Box Booth, Pattalam Mosque and the locations of the Computer Class as also Spoken English Class. The disclosure memo was marked as Exhibit P7 which was objected to by the defence. The objection was noticed by the Trial Court but the consideration was deferred., Here we have to notice that the learned Judge had at every point when objections were raised regarding the marking of disclosure memos as also the point out memos, noted it, but consideration was deferred after marking the documents. The objections were also on account of the disclosures being clearly in the nature of a confession and not leading to any discovery of facts or material objects. The conduct of the Court below is assailed relying on [2021] 10 SCC 598], wherein the Hon'ble Supreme Court directed that the objections be considered either, when it is raised or at least after the deposition of the particular witness is concluded. The said directions were issued on 20.04.2021, and it is clear, on a reading of the decision that till then the procedure was regulated by Bipin Shantilal Panchal v. State of Gujarat [(2001) 3 SCC 1]. Therein the practice of not proceeding with the evidence, on an objection being raised regarding the admissibility of any material in evidence, was termed 'archaic'. Directions were issued to mark the objected document tentatively and consider the objection, in the final judgment and eschew from placing any reliance on that document, if the objection is upheld. The trial in the instant case was when the earlier decision was holding the field and the trial Judge cannot be faulted for having marked the documents tentatively and deferred the consideration to a later stage. However, it was incumbent upon the Court to consider it in the final judgment; which unfortunately has not been done. Our consideration of the objections, we would place along with the findings on disclosures under Section 27., As per the decision in Sarwan Singh, there are two tests to be satisfied before accepting an approver's evidence. One, the test of reliability of the approver and then the test of corroboration at least in some material particulars. PW1, as is noticed, does not speak of any long‑standing relationship with any of the accused. As far as A1 is concerned, he was introduced by a neighbour, by the end of year 2005, after which PW1 had met him two or three times. It is very unlikely that such a casual acquaintance, would be summoned when a seditious act of explosion in a public place is planned. The deposition of PW1 is that, on the basis of the casual acquaintance with A1, he was requested to take out the phone numbers of the Collectorate, Calicut Times, and the SP's Office. He was on the next day, summoned to the Markaz Masjid, where A1 had directed PW1 to make a phone call to Calicut Times informing the factum of the bombs placed at two locations. There were six persons who had converged at the Masjid, to plant the bombs in the two bus stations. A4 is alleged to have made the call to the Collectorate and it is not perceivable as to why PW1 was involved, in making a call to the Calicut Times, especially when he did not have a strong bond with any of the accused.
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When one of the alleged perpetrators is projected as having made the call to the Collectorate and there were five others involved in planting the bombs, who later converged in a nearby mosque, why Person Witness 1, a casual acquaintance, was involved vexes us to no end. The involvement of Person Witness 1, just to make a call, makes his role suspect and unbelievable. Nor is there anything brought out in the investigation as to Person Witness 1 having any connection with fundamentalist organisations or a part in the conspiracy alleged by the prosecution. There is nothing shown from Person Witness 1's antecedents which would make him a willing partner of the seditious act., Further, in the cross‑examination of Accused 3, Person Witness 1 stated that he was questioned by Person Witness 58 about two weeks after the Criminal Appeal Numbers 1699/2011 and 53 blast occurred. However, he was released, since on detailed investigation, even according to Person Witness 1, he had no role in the crime committed. He also spoke of the police having examined the telephone call details of some of the booths and Person Witness 1 having been shown to the people who manned such phone booths. Person Witness 1 also admits that he was taken to Person Witness 4, the reporter of Calicut Times, who did not recognise his voice as the person who conveyed the information of planting of bombs. As pointed out by the defence, there was a thorough investigation surrounding the phone calls centred around the nearby telephone booths. Person Witness 53 also stated in cross‑examination that he had received the call details of the phone numbers of the Collectorate and the Calicut Times, informally from Bharat Sanchar Nigam Limited, immediately after the incident. The prosecution argues that the document produced as P41 did not show the incoming local calls. First of all, the said document was never confronted to Person Witness 53. Moreover, document D‑9 dated 29.01.2010, sent to the National Investigation Agency, was admitted to have been issued by Person Witness 34, Divisional Engineer of Bharat Sanchar Nigam Limited. He also says that it was the covering letter by which the Criminal Appeal Numbers 1699/2011 and 54 incoming calls of the specified telephone numbers were supplied, which details, he asserts, were given earlier to the police, as distinguished from the National Investigation Agency. There is no question put to him regarding the incoming call details supplied having not contained the local call details. It is thus very clear that what was given to the National Investigation Agency was earlier supplied to the local police, which contained the details of the incoming calls. An investigation in the nearby phone booths was carried out, Person Witness 1 was questioned and he was also confronted, to the booth attenders and the recipient of the call, Person Witness 4, without anything elicited. This makes the evidence of Person Witness 1 further suspect., More pertinently, according to Person Witness 1, he called Calicut Times and when a lady answered the telephone, he spoke of the bombs planted in the Mofussil and KSRTC bus stands, which would explode within five minutes and also spoke of such action being in protest of the Marad incident. He categorically says he did not listen to what the lady spoke over the telephone and disconnected the phone. Person Witness 4's evidence, however, speaks of the caller having first asked her whether it was the newspaper office. On her responding in the affirmative, the caller is stated to have said that two bombs were placed in the KSRTC and Mofussil stands and that they would explode in five minutes. Person Witness 4 goes on to say that she queried as to who was calling, which was responded by the caller asserting that it was the person who placed the bomb. According to Person Witness 4, the caller also asked her not to take it as a joke, that it was very serious and a continuation of the Marad incident. The version of Person Witness 1 only speaks of him having conveyed the fact of the bombs planted, the time within which they would explode and the protest being part of the Marad incident, after which he abruptly disconnected the telephone; quite contrary to the deposition of Person Witness 4. In cross‑examination Person Witness 1 further admitted that in his Section 164 statement he did not speak of the Marad incident in his call to the Calicut Times; which is an improvement in the Trial Court., It is also interesting to notice the facts pursuant to the arrest of Person Witness 1 (Accused 7) as spoken of by the Trial Court in Paragraph 5 of the impugned judgment. Person Witness 1 was arrested on 19.03.2010 and produced before the Trial Court on 20.03.2010; on that day itself he filed Criminal Appeal Number 437/2010 disclosing his intention to be an approver. The Criminal Memo was posted to 23.02.2010 and Person Witness 1 remanded to judicial custody, subsequent to which, by order dated 22.03.2010, Person Witness 1 was given to the custody of the National Investigation Agency for three days. The disclosures made by Person Witness 1 were when the National Investigation Agency took him under their custody, before which he had expressed his desire to turn approver. The disclosures made, except that with respect to the phone calls, were already known to the investigating agency, through the disclosures made by Accused 1 and Accused 4. It was after Person Witness 1 was again produced before the Trial Court that the National Investigation Agency made an application for recording the statement of the accused under Section 164 of the Criminal Procedure Code. Person Witness 1 filed another application expressing his willingness to turn approver which was allowed by order dated 02.09.2010. We find, based on the discrepant notes in the testimony of Person Witness 1 and the attendant circumstances of turning approver, that Person Witness 1 is not a reliable witness and his role in the crime is very suspect and cannot be believed, especially since he was earlier questioned and also confronted to the Criminal Appeal Numbers 1699/2011 attenders in the phone booths of the locality, as also Person Witness 4, the latter of whom failed to recognize his voice., Section 27 and Section 8 of the Evidence Act: Before we look for corroboration we would first look at the precedents regarding Section 27 and Section 8, under either of which reliance is placed by the prosecution, based on the disclosures and the pointing‑out memos., In considering Section 27 of the Evidence Act, we have to first notice Pulukuri Kottaya v. Emperor [AIR 1947 PC 67], where the disclosure was held to be of the concealment of some object and not the object itself. The object recovered from the place of concealment has to be connected to the crime to pin the guilt of the accused, who was also instrumental in making the recovery by supplying the information., The admissible evidence under Section 27 shall not speak of the crime itself; because if it does, then that portion would offend Sections 25 and 26. Athappa Goundan v. Emperor [MANU/TN/0455/1937] held that any information under Section 27, which serves to connect the object discovered with the crime/offence charged was admissible. Their Lordships were of the opinion that when pursuant to information supplied by an accused, the property stolen from the victim, say of murder, is discovered, then it can be made relevant by evidence aliunde or by the statement of the accused itself. The finding was that there was no warrant to garble the statement of the accused, 'to make it innocuous to the accused and in that process causing it to be irrelevant and consequently inadmissible in evidence'., The Calcutta High Court in Naresh Chandra Das v. Emperor [1942 AIR (Cal) 593], more specifically one of the learned Judges in the Division Bench, struck a discordant note to hold that only so much of the statement which evinces some or any connection with the crime alone is admissible. It was held: 'If evidence is needed to make the fact discovered relevant it is for the prosecution to supply that evidence, and for this purpose the confessional statement to the police cannot be utilised because of the provisions of Sections 25 and 26, Evidence Act. If any part of the statement is of some consequence in order to serve the purpose of connecting the fact discovered with the offence and not as cause of the discovery it is difficult to see why it is observed that there is no warrant for saying that that part of the statement is not admissible in evidence. Sections 25 and 26 clearly warrant this prohibition. If the prosecution cannot bring in any evidence aliunde connecting the fact discovered with the offence, the prosecution may have to fail. From this it does not necessarily follow that the statement of the accused shall have to prevent this disaster. Section 27, Evidence Act, does not say that so much of the information as is necessary to make the fact discovered relevant shall also be proved.' This view has been approved by the Privy Council in Pulukuri Kottaya., State of U.P. v. Deoman Upadhyaya [(1961) 1 SCR 14] considered the question whether Section 27 offends Article 14 of the Constitution of India, since the persons in custody of the Police are indiscriminately classified; as against persons not in custody. Negating the question, it was held that Section 27 is founded on the principle that even though the evidence relating to confessional or other statements made by a person whilst he is in the custody of a Police Officer is tainted and therefore inadmissible, if the truth of the information given by him is assured by the discovery of a fact, it may be presumed to be untainted and is therefore declared provable insofar as it relates to the fact thereby discovered. Kathi Kalu Oghad held that the provisions under Section 27 of the Evidence Act do not offend Article 20(3) of the Constitution of India, unless compulsion has been employed in obtaining the information., Further elucidation of Section 27 as also Section 8 of the Evidence Act is available in Navjot Sandhu @ Afsan Guru. Tracing the history of case law, Pulukuri Kottaya was described as a locus classicus, which set at rest much of the controversy centring around the interpretation of Section 27. The first requirement is that the investigating officer should depose that he discovered a fact in consequence of the information received from a person accused of any offence, in police custody; which fact was not in the knowledge of the police officer. The information or disclosure should necessarily be free from any element of compulsion. The next component is that only so much of the information as relating distinctly to the fact thereby discovered can be proved and nothing more. The Section explicitly clarifies that confession is not taboo, but the confessional part which is admissible is only such information or part of it, which relates distinctly to the facts discovered, by means of the information furnished. The rationale behind the provision was held to be that, if a fact is actually discovered in consequence of the information supplied, it offers some guarantee that the information is true and can, therefore, be safely allowed to be admitted in evidence as an incriminating circumstance against the accused., Referring to Pulukuri Kottaya it was noticed that the Privy Council rejected the contention that the fact discovered is the physical object produced and that any and every information which relates distinctly to that object can be proved. If the information given by the accused, that the weapon recovered was used by him in the commission of the murder, is made admissible, then the two preceding sections on confessions made to the police or by persons in police custody would have little relevance. The observations in Pulukuri Kottaya were to the effect that, when an accused person confesses that he has hidden a knife in the roof of his house, the discovery is not of the knife, but the fact of concealment of a knife in the house of the informant, which is only within his knowledge and is validated by the recovery effected. It was also cautioned that if the information further is to the effect that the knife was used to stab the victim, then those words are inadmissible. The following extract was made from page 71 of Pulukuri Kottaya as a very important observation: ..., The Privy Council held that the whole of that statement except the passage 'I hid it (a spear) and my stick in the rick of Venkatanarasu in the village. I will show if you come' is inadmissible. There is another important observation at paragraph 11 which needs to be noticed. The Privy Council explained the probative force of the information made admissible under Section 27 in the following words: 'Except in cases in which the possession, or concealment, of an object constitutes the gist of the offence charged, it can seldom happen that information relating to the discovery of a fact forms the foundation of the prosecution case. It is only one link in the chain of proof, and the other links must be forged in manner allowed by law.', Retracing their discussion to an earlier period, their Lordships referred to Ganu Chandra Kashid v. Emperor AIR 1932 Bom. 286 which was authored by Sir John Beaumont who gave the opinion of the Privy Council in Pulukuri Kottaya, and made the following extract: 'The fact discovered within the meaning of that section must I think be some concrete fact to which the information directly relates, and in this case, such fact is the production of certain property which had been concealed.' This is also the view taken by Shadi Lal, C.J. who expressed the opinion of the majority in Sukhan v. Emperor AIR 1929 Lah. 344, wherein the learned Judge held that the phrase fact discovered refers to a material and not to a mental fact in the following words: 'The fact discovered may be the stolen property, the instrument of the crime, the corpse of the person murdered or any other material thing; or it may be a material thing in relation to the place or the locality where it is found.', Their Lordships, in Navjot Sandhu then held that the controversy in Pulukuri Kottaya related to the extent of information that becomes admissible under Section 27 and the meaning and import of the expression 'discovery of fact' was not considered. Their Lordships held so in paragraph 125: 'We are of the view that Kottaya case is an authority for the proposition that discovery of fact cannot be equated to the object produced or found. It is more than that. The discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place.', After referring to various precedents following the decision in Pulukuri Kottaya, H.P. Administration v. Om Prakash [(1972) 1 SCC 249] was specifically referred to. Therein, the accused had pointed out a dagger from under a stone and the person (Person Witness 11) from whom he had purchased that dagger. It was held that the former was admissible under Section 27, but the latter inadmissible. A fact discovered within the meaning of Section 27 must refer to a material fact, to which the information directly relates. If a dagger was concealed under a stone and it is discovered on the information supplied by the accused, definitely it falls under Section 27. But, if the person from whom such dagger was purchased is pointed out, it does not fall under Section 27. Sukhan was approvingly referred to in Om Prakash. While the concealment of a knife, which the police was not aware of, is discovered by the information supplied, then the information of concealment is reliable. But if a witness from whom the knife is purchased is pointed out, it cannot be said to be discovered, if nothing is found or recovered from him as a consequence of the information furnished by the accused. The information which discloses the identity of the witness will not be admissible under Section 27., The above precedents clearly indicate that for a confession to be admissible under Section 27, the information supplied should lead to the discovery of a fact, leading to the production or recovery of a tangible object, not in the knowledge of the police and only so much of the information that distinctly relates to the fact discovered is admissible and shall be proved. When in consequence of information furnished by the accused, a fact is discovered, then the discovery of that fact supplies a guarantee of the truth of the information which may amount to a confession. The confession, in so far as it is confirmed by the discovery, should be deemed to be true. The prosecution is required to bring in evidence aliunde, connecting the fact discovered with the offence., Om Prakash provides a bridge between Section 27 and Section 8 of the Evidence Act. As has been held in Om Prakash, if a person is pointed out as the one from whom the weapon of offence was purchased, then it is not admissible under Section 27, but could be taken as conduct under Section 8, provided the pointing out is proved and the said person confirms the purchase. Prakash Chand v. State (Delhi Administration) [1979 (3) SCC 90] was a trap case, where the immediate conduct of the accused, after the trap was sprung, was held to be relevant. The silence of the accused, on being queried as to whether he had taken a bribe and the fact of his having kept the file with the bribe, under the table, were held to be relevant conduct under Section 8, influenced by the fact in issue. In A.N. Venkatesh v. State of Karnataka [(2005) 7 SCC 714] it was held: 'By virtue of Section 8 of the Evidence Act, the conduct of the accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact.' The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer the place where the dead body of the kidnapped boy was found and on their pointing out the body was exhumed, would be admissible as conduct under Section 8 irrespective of whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27. Even if we hold that the disclosure statement made by the accused‑appellants is not admissible under Section 27, it is still relevant under Section 8. The evidence of the investigating officer and Person Witnesses 1, 2, 7 and Person Witness 4, the spot witness that the accused had taken them to the spot and pointed out the place where the dead body was buried, is an admissible piece of evidence under Section 8 as the conduct of the accused. Presence of Accused 1 and Accused 2 at a place where ransom demand was to be fulfilled and their action of fleeing on spotting the police party is a relevant circumstance and is admissible under Section 8 of the Evidence Act., Even under Section 8 the conduct is relevant only if it influences or is influenced by any fact in issue or relevant fact. Acts, the proof of which reasonably tends to an inference that they were intended either in preparation of a crime or in its execution, become relevant, coupled with other evidence as to the actual commission of the crime. The conduct should be such as to have a direct bearing on the crime, the causation, or should be the natural consequence of that crime, the effect. If there is no independent evidence of the crime, a recovery under Section 27 or a conduct under Section 8 cannot by itself or solely result in a conviction. In the present case we are examining the evidence proffered by the prosecution, of the disclosures and the discoveries or the conduct, only for the purpose of corroboration. If corroboration is available then the evidence of the approver is sufficient to sustain the conviction, if it also qualifies the test of credibility., Corroboration of Person Witness 1, from Testimonies and Disclosures: The prosecution has listed out, in their written submission, the specific statements of the approver in his testimony and the corroboration offered by the prosecution through the evidence led before the Trial Court. At the outset we are of the opinion that the Section 164 statement of Person Witness 1, especially in the teeth of our finding on the credibility of the approver, does not offer any corroboration. As held in Sitaram Sao the evidence of one approver cannot corroborate that of another approver. There is hence no propriety in finding corroboration to an approver's testimony from his own 164 statement. Person Witness 1's testimony, insofar as it is relevant to the incident, according to us, is first, on his acquaintance with the accused, the preparation made at the Markaz Masjid, the bombs taken by the two groups who assembled at the Markaz Masjid and the resultant explosions.
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On the aspect of corroboration, the prosecution relies on the evidence of Prosecution Witness 10, the Partner of Logistics Solutions where Prosecution Witness 1 was a student, the presence of a black polythene bag spoken of by Prosecution Witnesses 6 to 8, 13 and 47, the evidence of the various witnesses establishing the explosion having occurred in the two bus stands, the phone calls to the Calicut Times, the apprehension of Prosecution Witness 1 from the Nedumbassery Airport coupled with the various disclosures made. The prosecution also asserts that the evidence of Prosecution Witness 1 to the effect that Nazeer told him that the plastic bags contain bombs, which were made at Kannur and brought to be Criminal Appeal Numbers 1699 of 2011 and 75 planted at the two bus stands was never challenged in cross‑examination. Immediately we have to notice that the approver has been found by us to be unreliable and the statement, even if not challenged has to be examined in the context of the available corroboration. We also found Prosecution Witness 1 to be not a close associate of the accused and only a casual acquaintance; throwing suspicion on his very involvement., That, there was an explosion of indigenous bombs in Kozhikode and the locations where it occurred is a fact known to the police and the general public. The evidence of the onlookers to that end does not in any manner corroborate the testimony of the approver, since the explosions were a matter of public knowledge. The fact that the approver studied in Prosecution Witness 10's institute is of no moment; having no relation to the cause or the effect of the fact in issue; which is the blast having been engineered by the accused. The disclosures are examined, in the sequence of the dates when they were made, to assess their efficacy and ascertain whether, in fact they offer corroboration to the testimony of Prosecution Witness 1., Exhibit P17, Criminal Appeal Numbers 1699 of 2011 and 76 disclosure memo of A1 dated 02.03.2010 records five disclosures: A1, A2, A4 and A6 to A9 having converged at Markaz Masjid before the bomb blast; A1, A4 and A9 having proceeded to the KSRTC Bus Stand to plant one bomb; A2, A6 and A8 having proceeded to the Mofussil Bus Stand to plant another bomb; the bombs having been made in the room of A2, at KL Arcade; and a plastic pot, used in making the bomb, having purchased from one 'Cannanore Plastic House'. Exhibit P18 and P19 point out memos indicating the locations with reference to which the above disclosures were made., All the disclosures recorded contain a confession regarding the involvement in the crime, i.e., the bomb blast, which is inadmissible under Sections 25 and 26 of the Evidence Act, whether for the purposes of Section 27 or Section 8. When that is eschewed, the disclosures boil down to the fact of the accused having gone to the locations; from where nothing has been discovered nor can it be said to be a conduct having any relation to the cause or effect of the explosion. Markaz Masjid or the Pattalam Mosque was not discovered by the police on the Criminal Appeal Numbers 1699 of 2011 and 77 information supplied by the accused nor was any material object recovered from the locations having any connection with the crime. The conduct of the accused in having gone to the masjid or the mosque, by itself has no relevance since it does not lead to an inference of the blast being a consequence of that act or that act being influenced by the crime., Just as the location of the bombs was common knowledge, the room in KL Arcade was known to the police from the disclosure of A3. More importantly, nothing turns on the disclosure of the room, which, as in the case of the other locations, led to no discovery of fact. The conduct also cannot be said to have a bearing on the crime if the inadmissible portion of the confession regarding the making of the bombs used for the explosion is eschewed. The room in which A2 stayed was under the ownership of Prosecution Witness 21, which when pointed out was occupied by another. The identification made of A1 by Prosecution Witness 21 is merely of having seen him with A2 and A8. The room was searched by the police as revealed from Exhibit P19, which yielded nothing to connect the accused with the crime. The search was also unnecessary since earlier the room was searched by Exhibit P27 Mahazar when A3 pointed out the same. A3 was acquitted and the trial Court found the disclosure leading to the room of A2 and the location of experimental explosions to be not incriminating. If these disclosures do not incriminate A3, the subsequent disclosure of A1 as to the room of A2 cannot incriminate A1. These facts are also not spoken of by the approver., Similarly, Prosecution Witness 23 is the owner of Cannanore Plastic House, who failed to identify A1. The prosecution would have us believe that the disclosure of A1 was to the effect that a plastic pot was purchased from Prosecution Witness 23, and an identical one in the shop of Prosecution Witness 23 was pointed out by A1. That the explosive materials contained plastic is evident but that alone would not connect the same with the plastic pot alleged to have been purchased from Prosecution Witness 23. The case of the prosecution was that the plastic found was of the black plastic cover in which the bomb was kept at the locations. Exhibits P86 and P87 reports of State Forensic Science Laboratory show only polythene pieces and torn pieces of polythene and plastic covers in the remnants collected from the explosion site. Exhibits P61 and P62 reports of Central Forensic Science Laboratory indicate presence of irregular plastic sheet‑like material and torn pieces of polythene and plastic covers in the remnants. There is no indication of remnants of a plastic pot having been collected from the scene of occurrence, either in the Mahazar or in the FSL report. Further there was no attempt to test whether any particle in the remnants was similar to the material used in the sample pot pointed out by A1 at Cannanore Plastic House. The sample pot was not even seized for such examination. The disclosures are inadmissible for their reference to the crime proper and when that is eschewed, the exercise of pointing out led to no fact being discovered which could connect the accused to the crime. A1 purchased a pot, but there is no evidence that it has been used in making the bombs; but for the alleged statement recorded in the disclosure memo, which is inadmissible under Sections 25 and 26 of the Evidence Act. The lower Court's finding that A1 was identified by Prosecution Witness 23 is the identification when A1 was brought to his shop at the time he pointed it out to the National Investigation Agency and not in relation to the purchase, allegedly disclosed by A1. The purchase of a pot by A1 was not spoken of by Prosecution Witness 23 and an identification prior to the pointing out is totally absent., The disclosure memo of A4, Exhibit P23, is dated 10.03.2010. The disclosures are again of one Markaz Masjid, location of the bomb planted in KSRTC Bus Stand, the STD booth from where A4 called the Collectorate and the Pattalam Mosque, where the six converged after planting the bombs. Exhibit P23 pointing out memo of even date is also marked. The disclosure memo of A7 (Prosecution Witness 1) is marked as Exhibit P7 dated 24.03.2010 and the pointing out memo of even date, marked as Exhibit P25. Again the Markaz Masjid and the Pattalam Mosque are pointed out along with the institutes where A7 (Prosecution Witness 1) was attending computer classes and spoken English classes. We reiterate that though the factum of A7 (Prosecution Witness 1) having attended a computer class at the relevant time is established beyond doubt, it is not material since it offers no connection to the crime. It is an irrelevant fact, neither having relation to causation or effect., Another disclosure of A7 (Prosecution Witness 1) is with respect to the booth from which the call was made to the office of Calicut Times. Except the disclosure of the telephone booths, made by A4 and A7 (Prosecution Witness 1), the other disclosures suffer from the very same infirmity of the disclosures of A1 and are also subsequent to the disclosures of A1 of the same locales. The call details and the identification of the booths are to be separately dealt with. The disclosures regarding the spots where the bombs were placed offend Sections 25 and 26 of the Evidence Act. The disclosures do not lead to any discovery of fact as relatable to a material object and there is no conduct brought out which has any relevance to the facts in issue, having a direct bearing on it, the cause or the effect. The disclosure of A4 and A7 (Prosecution Witness 1) being subsequent to that of A1; even if they led to a fact or have any bearing, cannot be relevant either under Section 27 or under Section 8 of the Evidence Act. Further the identification at the time of point out memos can only be in relation to a relevant fact discovered under Section 27 or in relation to a conduct under Section 8. When the portion of the disclosure that offends Sections 25 and 26 are eschewed then the disclosures lead to no discovery of fact having a connection with the crime and the conduct too has no bearing., XIII. The Threat Calls: A4 made the call to the Collectorate. The telephone number of which is '2371400'. Prosecution Witness 11 at the relevant time was carrying on an STD booth, which was started in the year 2003 in one 'Seema Tower', wherein he was carrying on a toy shop by name 'Sky Boy'. He stopped the STD booth in the year 2009. The booth had a coin box of the 'Reliance' having number '3942906', which was said to have been subscribed in his name; for which there is no evidence. Prosecution Witness 29, the Commercial Officer of Bharat Sanchar Nigam Limited, produced the details of six numbers as per Exhibit P28. Phone number '2371400' belongs to the District Collector, as seen from Exhibit P28. The other telephone numbers are not relevant to the call made by A4. Prosecution Witness 31 produced the call details of five numbers, one of which was that of the District Collector. Exhibit P30 is the computer print out of the incoming calls and Exhibit P31, that of outgoing calls. Exhibit P30(a), according to the witness, is the call from '3942906' to '2371400', i.e., from Prosecution Witness 11's coin box to the District Collector's office. The disclosure memo of A4 is at Exhibit P23, where he speaks of the coin box near KSRTC Bus Stand, Kozhikode from where he rang up the Collectorate. It is very pertinent that though Prosecution Witness 11 was examined, he was not holding the number at the time of deposition. There was nothing produced by the prosecution to show that the coin booth was in the name of Prosecution Witness 11. Prosecution Witness 11 also did not identify A4 as the person who made the call from his booth., In addition to this, we have to notice the manner in which the point out memo was drawn up. Prosecution Witness 58, after speaking of the disclosure by A4, as seen in Exhibit P23, followed A4 when he pointed out the location of the various disclosures. After Markaz Masjid and the location of the bomb at the KSRTC Bus Stand, Prosecution Witness 58 was led to a street near Mavoor Road. A4 is said to have pointed out the spot where the coin box was situated. However, since the building was being reconstructed, there was no coin box existing there. There is no specification of the location of the building or the name or nature of the building in which the coin box is said to have been situated; either in the deposition of Prosecution Witness 58 or in the point out memo at Exhibit P24. In fact the location should have been clearly ascertained and the building identified, which location and building had to be elicited from Prosecution Witness 11. The prosecution failed to do so. The disclosure regarding the call to the Collectorate has not been established by the prosecution. Further, the call to the Collectorate was one known to the police and hence, there is no fact discovered in tune with the disclosure made by A4. The said disclosure is not admissible under Section 27, for reason of no object having been discovered and even as a conduct, the call having been made by A4 is not corroborated by the witnesses. A4, sadly, has not been connected with the call received at the Collectorate, but for the disclosure statement, which is not admissible under Section 27., The next call detail relied on by the prosecution is that made by Prosecution Witness 1 to Calicut Times. It has to be reiterated that Prosecution Witness 4, who received the telephone at the Calicut Times did not recognise the voice of Prosecution Witness 1. Prosecution Witness 29, the Commercial Officer of Bharat Sanchar Nigam Limited, in addition to the District Collector's number, by Exhibit P28 confirmed the telephone number of Calicut Times daily, which is '2700834', as seen from Exhibit P28. In addition, '2361583' belongs to one Muhammed Mustafa, '2368653' was subscribed by Bushrabee and '2766010' by Muhammed Ashraf. He also states that Bushrabee's telephone number was installed in M.A. Bazar, Kozhikode. Prosecution Witness 12 is the witness proffered, who merely said that he operated the numbers of Muhammed Mustafa and Bushrabee without any further proof. Prosecution Witness 12, at the time of deposition, was carrying on a business in mobile phones by name '120 NE' at M.A. Bazar, which was started in 2008. Before that he was running a stationery, photostat and telephone booth‑coin box. The said business was also carried on in the very same premises and the name of the said shop was 'Graphline'. Though the shop belongs to his brother‑in‑law Muhammed, Prosecution Witness 12 was running it since his brother‑in‑law left for Gulf. He spoke of having operated the coin box in the name of Bushrabee bearing number '2368653', which was in M.A. Bazar, Bank Road, which is also called Dubai Bazar. He also said that his shop was on the western side of the road and on the east there is a Gulf Bazar. Prosecution Witness 31 also marked Exhibit P30(b), which is an incoming call to the number '2700834', that of Calicut Times, at 12.33 p.m. This call came from 2368653, belonging to Bushrabee and the coin box operated by Prosecution Witness 12; if Prosecution Witnesses' evidence alone is to be believed. Immediately we have to notice the evidence of Prosecution Witness 1 in which his categoric statement is that he made the telephone call from the booth in Gulf Bazar, which is not the location of the coin box operated by Prosecution Witness 12. We reiterate Prosecution Witness 11's deposition was that 'the coin box numbers are 2368653 and 2361583; which is in Bank Road and it is on the western side of the road and Gulf Bazar is on the eastern side'. He also said that now M.A. Bazar is called Dubai Bazar. Obviously Prosecution Witness 1 made the call from the coin box at Gulf Bazar, which is not the location of the coin box of Prosecution Witness 12., We again examine the deposition of Prosecution Witness 58, with respect to the pointing out of the coin box by A7 as per the disclosure memo at Exhibit P7. Exhibit P7 disclosure memo speaks specifically of a coin box booth in Dubai Bazar, contrary to the deposition. Having stated about the disclosure of A7, in his words, Prosecution Witness 58, in page 61, speaks of having reached Dubai Bazar, Kozhikode where the accused is said to have pointed out the booth from which he made the telephone call. The statement of the accused is deposed as the red coloured coin box booth in front of a shop, which shop was specifically pointed out; but the details not noted in the memo or spoken of by Prosecution Witness 58. It is also stated that the coin box was not found in the spot when A7 led Prosecution Witness 58 to that location. It is also stated that since the box was not there, the accused was not able to point out the exact spot. Here, we recount the specific deposition of Prosecution Witness 12 that the coin box was situated outside the shop named '120 NE' in the year 2006 and though the coin box was stopped, the very same premises was earlier used for another business, called 'Graphline'. The Investigating Officer has not even noticed the name of the shop pointed out by the accused, which, juxtaposed with the deposition of Prosecution Witness 12 that Gulf Bazar was opposite to his shop, further debunks the evidence of Prosecution Witness 1 regarding the call made., The evidence led to establish the calls to the Collectorate and Calicut Times having been made from two identifiable numbers, though established by the evidence of Prosecution Witness 29 and Prosecution Witness 31 as also Exhibit P30(a) and (b), does not offer any connection to A4 or Prosecution Witness 1. The coin booths from which A4 and A7 had made the calls, or the exact location, have not been identified by the Investigating Officer and it can only be said that there were calls at the relevant time to the Collectorate and Calicut Times from the particular numbers. The testimony of Prosecution Witness 1 does not stand corroborated by the evidence of Prosecution Witness 12 regarding the location of the coin booth. There is also the discrepancy regarding the exact conversation Prosecution Witness 1 had with Prosecution Witness 4; as pointed out by us from the depositions of Prosecution Witness 1 and Prosecution Witness 4 and the Section 164 statement of the former. It has also to be emphasized that the proof of subscribers of the various numbers is offered through Prosecution Witness 29, an Official of Bharat Sanchar Nigam Limited, through a document, Exhibit P28, signed by him, showing the numbers and address of the purported subscribers which cannot be said to be primary or secondary evidence., XIV. The Identification of the Accused by Prosecution Witness 1: Prosecution Witness 1 as stated by the defence has not identified any of the accused in the dock, but for narrating their roles in the alleged incident leading to the two explosions. On behalf of the National Investigation Agency it was argued that Prosecution Witness 1 is not a chance witness and has mentioned the name of A1 many times during chief examination, after initially admitting his acquaintance with all the persons in the dock. It is the argument that the entire evidence of Prosecution Witness 1 clearly brings out the identification and the defence also put suggestions regarding the transaction between A1 and Prosecution Witness 1. The identity of the accused were not challenged in cross‑examination and hence it is admitted by the defence, is the contention. We are unable to countenance the said contention especially in the context of the declaration of another Division Bench in Vylali Gireesan (supra). The Division Bench in Paragraph 43 held that: 'Undoubtedly, substantive evidence is the identification of the accused by the witness before the Kerala High Court. But in the instant case, the deposition of the witnesses only reveals that the learned Sessions Judge has merely recorded the rank number of the accused in the charge and no effort is seen undertaken to certify in the deposition, with exactitude and certainty, that the person referred by witness as one of the members of the unlawful assembly which perpetrated the horrendous act is the person who was standing in the dock. We are unable to discern for certain as to whether the witness was referring to the particular accused whose name finds a place in the charge or to some other person. Obviously the witness will not be aware of the rank number of the person standing in the dock in the array of the accused. There is absolutely no clue available from the deposition either, as the Court has not recorded this aspect in the evidence as to the manner in which the particular accused was identified. The Apex Court as well as this Court, time and again, have reminded the trial Courts, the importance of recording in the deposition the most cardinal fact that the witness has specifically identified the accused as the person who was involved in the crime, so that the complicity and presence of the accused at the scene of crime could be fixed with exactitude.', Admittedly four persons were in the dock and a credible identification would be by pointing out the specific person/accused from among those standing in the dock; either by their position, their dress or any other peculiar features. True the Court also should have been more vigilant in prompting the witness to make a proper identification. But it is more incumbent on the prosecution to ensure that a credible identification is made, which has the duty of establishing the guilt of the accused beyond any reasonable doubt. When such an identification has not been attempted by the prosecution or the Court, there is no reason why the defence should point out the default of the prosecution and thus precipitate an identification which the prosecution failed to carry out. We cannot countenance the argument of the learned Senior Counsel that there was no challenge made by the defence in cross‑examination of Prosecution Witness 1 regarding the identification of A1. Other than the reference to the various accused in the narration of facts leading to the bomb explosion, the approver (Prosecution Witness 1) only stated that he had acquaintance with A2, A6, A8 and A1. According to him when he reached the Markaz Masjid on the summons of A1, out of the six, he was familiar only with A1 and A9 and the others were introduced to him for the first time. Nowhere in the chief examination was an attempt made by the prosecution to call upon Prosecution Witness 1 to identify each of the accused standing in the dock; which, as argued by the defence, cuts at the root of the prosecution case. The identification made at the time of the disclosure statements and point out memos are relevant only if such disclosures led to a discovery linking that accused to the crime; which is totally absent in the above case., XV. The Conclusion: The blast occurred in the two bus stands on 03.03.2006 at noon, is of common knowledge, as spoken of by the witnesses Prosecution Witnesses 5 to 9, Prosecution Witness 13 and Prosecution Witness 15, all onlookers. The remnants of the material objects collected from the two sites where the blasts occurred contained explosive substances as reported by the Forensic Science Laboratory in Exhibits P61 and P62, proved by Prosecution Witness 47 and Prosecution Witness 48 respectively; inevitably so since the bomb blasts did occur. That the bomb was placed in a black plastic cover in the Mofussil Bus Stand has been spoken of by the onlookers. But, that cannot be projected as a corroboration of Prosecution Witness 1's testimony of having seen two black covers at the Markaz Masjid. The police knew beforehand that the bomb at the Mofussil Bus Stand was in a black plastic cover which was seen by the onlookers and the policemen who arrived at the scene, especially Sub Inspector Prosecution Witness 38 who came to the scene before the blast occurred. This could have been conveyed to Prosecution Witness 1, who was in police custody, for him to make such a statement., The prosecution case of preparation having been made by A1, sought to be established with Prosecution Witnesses 24 to 26 has been belied by their own evidence. The disclosure was of the purchase of gelatin from Prosecution Witness 24's house, which was thoroughly searched and nothing obtained. The evidence of Prosecution Witnesses 24 to 26 did not at all tally with the disclosure made and A1 was not identified by Prosecution Witnesses 25 and 26. The identification of A1, by Prosecution Witness 24 was after having been shown his photograph by the National Investigation Agency. The disclosures of A3, of KL Arcade, the room of A2 was on 29.07.2009. A1 is said to have kept the bombs in the said room, before they were brought to Kozhikode; but a search of the premises did not yield any incriminating material. The houses of all the accused were also searched by Prosecution Witness 54, without anything being discovered. In this context, we again refer to Navjot Sandhu (supra) where on the information of the accused the abodes/hideouts of the deceased terrorists were discovered; where from incriminating articles like explosive materials and electronic detonators were recovered. The accused also identified certain shops from where purchase of explosives were made, which fact was spoken of by the shopkeepers who were examined before Court. The pointing out of Maidanappally beach where A3 and A1 allegedly carried out two experimental blasts also did not lead to any discovery of fact as relatable to a material object; like the remnants of explosion from the site. The conduct too is not established; which could have been, if there were witnesses to the explosion or at least people who heard the same and contemporaneously saw A1, A2 or A3 in the location. The conspiracy as alleged by the prosecution has not been established., A1, pursuant to disclosures, pointed out the Markaz Masjid, the location in which the bombs were placed in the two bus stands, the room in which the bomb was made in KL Arcade and Cannanore Plastic House from which a plastic pot was purchased by him. There is no recovery of any object leading to discovery of a fact from these places which would incriminate A1. The location of the bombs were known to the police and in any event that part of the disclosure is inadmissible. As far as other places pointed out, there is no discovery made nor is the conduct of going to such locales a relevant conduct. A1's disclosure was on 02.03.2010 and the pointing out of the locations on that day and the next. The very same locations pointed out by A4 and A7 (Prosecution Witness 1) respectively on 10.03.2010 and 24.03.2010 in any event cannot be made admissible, since by then the police knew of the said locations. The disclosures of A1, A3, A4 and A7 (Prosecution Witness 1) did not lead to any tangible object and there is no discovery of fact which was not known to the police. The disclosures are all in the nature of having converged at the Markaz Masjid before the explosion, then the actual planting of bombs and later converging at Pattalam Mosque after the explosion. If the reference to the bombs and explosion are eschewed, the information supplied is only the converging of the accused at the Markaz Masjid and then at the Pattalam Mosque, which by itself is not an incriminating circumstance. The Investigating Officer having followed the accused to the said locations, there was also nothing discovered from the said locations so as to connect the accused with the crime., There is no reliable evidence on the preparation or commission of the crime that would incriminate the accused beyond reasonable doubt. The approver's evidence fails miserably in the twin tests; that of inherent reliability and credibility as also on the aspect of corroboration; the latter of which we find to be absent even in a single material particular. The threat calls have just been established to be from two numbers in two booths, the identity of the caller or even the location of the booths have not been established. We are appalled by the manner in which the confessions, purportedly under Section 27 were recorded, with portions relating to the crime as such, offending Sections 25 and 26 of the Evidence Act., We do understand the inherent difficulty of an investigation, in a case taken over by the National Investigation Agency, almost four years after the incident. The Investigating Officers were groping in the dark for almost four years, till the arrest of A3 in another blast case. It is on the information that on interrogation in another case, A3 Criminal Appeal Numbers 1699 of 2011 admitted to be involved in the Kozhikode blast case, that he was arrested. This admission spoken of by the Investigating Officer in the other blast case cannot be relied on. A1 to A8 were arrayed after A3 was questioned and later, A1 and A4 were arrested from Bangalore, where they were in judicial custody in yet another blast case. A9 was never even taken into police custody or questioned. It is purely based on the confessions made by the accused; A3 first and then, A1, A4 and A7, in that order, that the case was framed by the National Investigation Agency. We have dealt with each of the evidence tendered including the approver's deposition as also the disclosure statements and the evidence of other witnesses to find that the case against A1 to A4 was not proved beyond reasonable doubt. The investigators, we cannot but say, did not make a concerted effort to go out in the sun to collect independent evidence of whatever version the accused told them; though we do not venture to speculate whether they employed red pepper to elicit the disclosures. In their anxiety to wrap up the case; we say anxiety since we do not think the Officers of the National Investigation Agency would be ignorant of the law on the subject, they even recorded the confessions made by the accused, clearly inadmissible under Sections 25 and 26 of the Evidence Act., When confessions were recorded and attested by witnesses with the fact discovered in brackets, Anna Chandy, J held so in Karunakaran v. State of Kerala [1960 9].
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The whole thing appears to be an intentional whittling down of the wholesome provisions of Sections 25 and 26 of the Evidence Act. It is very easily said that the incriminating portion of a lengthy confessional statement should be excluded, but it is a very difficult mental process to close your eyes to the details in the confessional statement and see only the bracketed portion and remain uninfluenced by the confession of the accused. This feat is possible of performance only by a few specially trained experts. There is no reason why the overburdened judicial officers should be saddled with an additional burden which has no support of law or procedure. In this case Exhibits P‑2 and P‑3 confessional statements are attested by two witnesses and the Sub‑Inspector. The witnesses are specially got down for pinning them and the accused down to a particular position by the attestation of a document of questionable legality. The accused's confessions are filed as exhibits in court and proved by attesting witnesses and used for questioning the accused under Section 342 of the Criminal Procedure Code. The above view was upheld by two Division Benches; two Criminal Appeal Numbers 1699/2011 and 1699/1999 decades apart, in Mohammed v. State of Kerala [1962 KLT 120] and Gabriel v. State of Kerala [1982 KLT 772]. The succinct statement of law stands out and survives even today; eight short of 'three score and ten years'. What was said of exceptionally trained minds applies on all fours even now and the burden of the judicial officers has only multiplied with each year. In the present case there are no lengthy statements but the disclosures record the confession linking the accused with the crime so unabashedly that none could escape the innuendo. This is in flagrant violation of Sections 25 and 26 of the Evidence Act and tends to impress upon the Supreme Court of India the need to convict, even without proof beyond reasonable doubt., One ancillary contention was regarding the sanction for prosecution under the Explosive Substances Act, which by Section 7 can only be with the consent of the District Magistrate. The learned Senior Counsel argued that since the Central Government has issued sanction, it would suffice because the Central Government is a higher authority. Reliance is also placed on State of Haryana v. Criminal Appeal Number 1699/2011 and 100 P.C. Wadhwa [(1987) 2 SCC 602], which is not applicable. There the question raised was on the authority to make an adverse entry in the confidential records. The decision turns on the specific rule which was interpreted as having conferred the power on the superior authority or such other authority specifically empowered by the Government; which later authority definitely should be superior to the employee. The prosecution also relies on Ahamed Kalnad v. State of Kerala [2001 Criminal Law Journal 4448], in which the Government granted the sanction to prosecute under the Prevention of Corruption Act, and not the authority competent to remove from service. The rule extracted by the learned Single Judge itself indicates that the sanction should be either by the authority competent to remove from service or the Government. We fall back upon the principle laid down in Taylor v. Taylor [(1875) 1 Ch.D 426] that when the statute prescribes the performance of a thing in a particular manner, the same shall be done in that manner alone or not at all. Here, the consent should be by the District Magistrate and the Central Government cannot be said to be the higher authority, especially when that Government does not exercise any control, supervisory or otherwise over the District Magistrate. On the above findings and reasoning we allow the appeal filed by A1 and A4 (Criminal Appeal No. 1699 of 2011). Likewise, we find no reason to upset the finding of acquittal of A3 and A9 and reject the appeal filed by the National Investigation Agency (Criminal Appeal No. 1914 of 2011). A1 and A4 shall be released forthwith, if not wanted in any other case. Ordered accordingly.
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id_1534
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Criminal Appeal Nos. 33/2003, 1301/2002, 1298/2002 and 1297/2002. Judgment reserved on 10 January 2024 and delivered on 16 January 2024. Rajesh Kumar, son of Pandurang Raghorte, aged about 26 years, resident of Kumbhar Para, Dongargarh, Police Station Dongargarh, District Rajnandgaon, Appellant versus State of Chhattisgarh, Respondent. Jaswinder Singh Bhatia alias Grety, son of Jogendra Singh Bhatia, aged about 32 years, residing at Delhi Hotel, Devri, District Gondia, Maharashtra, Appellant versus State of Chhattisgarh, through Station House Officer, Police Station Dongargarh, District Rajnandgaon, Respondent. Indrajeet Singh Kakkad, son of Surendra Singh Kakkad, aged about 25 years, resident of Anupam Nagar, Rajnandgaon, Chhattisgarh, Appellant versus State of Chhattisgarh, through Station House Officer, Police Station Dongargarh, District Rajnandgaon, Respondent. Surendera Pal Singh alias Pappi Bhatia, son of Sardar K.S. Bhatia, aged about 35 years, resident of Basantpur, Police Station Basantpur, District Rajnandgaon, Appellant., For Appellant Rajesh Kumar (A-1) in Criminal Appeal No.33/2003: Mr. Gurmit Singh Ahluwalia, Advocate. For Appellants Jaswinder Singh Bhatia alias Grety (A-2) and Indrajeet Singh Kakkad (A-3) in Criminal Appeals Nos.1301/2002 and 1298/2002 respectively: Mr. Surendra Singh, Senior Advocate with Mr. Pragalbha Sharma, Advocate. For Appellant Surendera Pal Singh alias Pappi Bhatia (A-4) in Criminal Appeal No.1297/2002: Mr. K.A. Ansari, Senior Advocate with Mrs. Meera Ansari and Mr. Aman Ansari, Advocates. For Respondent/State: Mr. Sudeep Verma, Deputy Government Advocate. Single Bench: Honourable Justice Sanjay K. Agrawal, Judge., This batch of criminal appeals is directed against the impugned judgment dated 23 December 2002 passed by the Special Judge, District Court, Rajnandgaon in Special Case No.128/2001, by which the learned Special Judge, while acquitting the four appellants of the charge under Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, convicted appellant Rajesh Kumar (A-1) under Section 314 of the Indian Penal Code and sentenced him to rigorous imprisonment for ten years and a fine of ten thousand rupees, in default to undergo additional rigorous imprisonment for one year. The same judgment also convicted appellants Jaswinder Singh Bhatia alias Grety (A-2), Indrajeet Singh Kakkad (A-3) and Surendera Pal Singh alias Pappi Bhatia (A-4) under Section 314 with the aid of Section 109 of the Indian Penal Code and sentenced them to rigorous imprisonment for ten years and a fine of ten thousand rupees each, in default to undergo additional rigorous imprisonment for one year., Since all four criminal appeals have arisen out of the same judgment dated 23 December 2002 passed by the Special Judge, District Court, Rajnandgaon in Special Case No.128/2001 and since a common question of fact and law is involved in all the appeals, they have been clubbed together, heard together and are being disposed of by this common judgment., The prosecution case, in a nutshell, is that on 26 May 2001 appellant Rajesh Kumar (A-1), claiming to be a doctor, caused the miscarriage of Shakun Bai, widow of Madan Lal Gond, aged about 40 years, which resulted in her death, and that appellants Jaswinder Singh Bhatia alias Grety (A-2), Indrajeet Singh Kakkad (A-3) and Surendera Pal Singh alias Pappi Bhatia (A-4), along with co‑accused Jasmit Singh, who was tried by the jurisdictional Juvenile Justice Court as a juvenile, abetted the commission of the offence under Section 314 of the Indian Penal Code. The deceased Shakun Bai was working as a maid in the house of the juvenile Jasmit Singh and had developed a relationship outside of marriage with him. Jasmit Singh used to come on a motorcycle to her house, stay for one to two hours and then leave. He later took Shakun Bai, her daughters Saraswati and Sadhana, and son Raju to Nagpur. Four to five unidentified Sardars visited the house of Shakun Bai’s father, Tularam (Witness 3), and threatened him, saying his daughter had eloped with Jasmit Singh. Police searched for Shakun Bai but could not locate her; after four to five months she was found in a hut at Nagpur. The unidentified Sardars asked her and the children to board a jeep, brought them to Rajnandgaon, and near Devri Dhaba gave Rs 1,500 to Tularam and asked him to arrange an abortion for his daughter, who was five months pregnant, threatening to kill her if the incident was disclosed. Subsequently, Rajesh Kumar (A-1) treated Shakun Bai, asking the other accused to leave. She then became unconscious, and blood started oozing from her mouth after he administered an injection on her hand. The next day her condition deteriorated; Rajesh Kumar (A-1) asked her father to take her to a higher centre at Rajnandgaon. While escorting her to the hospital, she died on the way between Kopedih and Tumdibod. The vehicle was seized and a post‑mortem was conducted by Dr. Shrimati Madhuri Khunte (Witness 12), Dr. B.L. Kurre and Dr. V.K. Damle, who found a dead foetus of 24 weeks in the womb and no external injury. The Forensic Science Laboratory report (Exhibit P‑26) showed only an organic substance (alkaloid) in Articles B and C viscera and no poisonous chemical in Article D liquid sample., The investigating officer, after completion of the investigation, chargesheeted the accused persons before the jurisdictional criminal court, which committed the case to the Court of Sessions, Rajnandgaon, from where the learned Special Judge received the case on transfer for trial., The prosecution, to prove the offence, examined 26 witnesses and exhibited 42 documents (Exhibits P‑1 to P‑42). The accused persons denied guilt and claimed false implication; they examined no witnesses but exhibited four documents (Exhibits D‑1 to D‑4) in support of their defence., The trial Court, after appreciating ocular, oral and documentary evidence, while acquitting the appellants of the charge under Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, convicted and sentenced them in the manner mentioned in the opening paragraph of this judgment, against which these four appeals have been preferred., Mr. Gurmit Singh Ahluwalia, learned counsel for appellant Rajesh Kumar (A-1) in Criminal Appeal No.33/2003, submitted that the prosecution failed to prove the offence under Section 314 of the Indian Penal Code because a foetus was found inside the womb of the deceased Shakun Bai, indicating no miscarriage as contemplated by Section 314, and there is no evidence that Rajesh Kumar (A-1) administered any medicine by which she died. In that view, the conviction of A‑1 is unsustainable in law., Mr. Surendra Singh, learned Senior Counsel for appellants Jaswinder Singh Bhatia alias Grety (A‑2) and Indrajeet Singh Kakkad (A‑3) in Criminal Appeals Nos.1301/2002 and 1298/2002 respectively, and Mr. K.A. Ansari, learned Senior Counsel for appellant Surendera Pal Singh alias Pappi Bhatia (A‑4) in Criminal Appeal No.1297/2002, submitted that since the principal offence under Section 314 of the Indian Penal Code is not established, the present appellants A‑2 to A‑4 cannot be convicted under Section 109 of the Indian Penal Code. They relied upon the decision of the Supreme Court in Madan Raj Bhandari v. State of Rajasthan to support their submission., Mr. Sudeep Verma, learned Deputy Government Advocate for the State/respondent, submitted that the prosecution has proved the offences against the appellants beyond reasonable doubt; therefore, the appellants have rightly been convicted and their conviction is strictly in accordance with law, and their appeals deserve to be dismissed., I have heard learned counsel for the parties, considered their rival submissions made herein‑above and also went through the record with utmost circumspection., Considering the evidence available on record, I will first consider the case of appellant Rajesh Kumar (A‑1), as he has been convicted under Section 314 of the Indian Penal Code., On the report dated 15 June 2001, offences punishable under Sections 314, 376 and 109 of the Indian Penal Code; Section 3(1)(xii) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989; and Section 3/7 of the Medical Termination of Pregnancy Act, 1971, were registered against Jasmit Singh and five other persons. The dead body of Shakun Bai was subjected to post‑mortem, the report (Exhibit P‑12) stating cause of death as shock but giving no definite opinion. Dr. Shrimati Madhuri Khunte (Witness 12), one of the doctors who conducted the post‑mortem, stated that a foetus of 24 weeks was present in the womb and that no definite opinion could be given regarding an attempt to abort or the cause of death. Viscera were preserved and sent for chemical analysis to the Forensic Science Laboratory, Sagar, where report Exhibit P‑26 indicated only an organic substance (alkaloid) in Articles B and C viscera and no poisonous chemical in Article D liquid sample. Thus, the evidence shows a foetus of 24 weeks was present in the deceased’s womb., Now, the question would be whether the trial Court is justified in convicting Rajesh Kumar (A‑1) for an offence under Section 314 of the Indian Penal Code causing miscarriage to Shakun Bai which resulted in her death., Section 312 is an offence of causing miscarriage. Section 312 of the Indian Penal Code provides punishment for causing miscarriage. The ingredients of the offence are that the accused voluntarily does an act to cause a woman with a child or quick with a child to miscarry and that he did not cause the miscarriage in good faith to save the mother’s life. The term miscarriage used in Sections 312 and 314 is synonymous with abortion and consists of expulsion of an embryo or foetus before the period of viability. A woman \quick with a child\ means the stage of pregnancy when the mother perceives fetal movements. Section 312 can also apply to a pregnant woman who causes her own miscarriage. Good faith must be for the purpose of saving the life of the mother or child, not otherwise. The expression \voluntarily\ is defined in Section 39 of the Indian Penal Code: “A person is said to cause an effect voluntarily when he causes it by means whereby he intended to cause it, or by means which, at the time of employing those means, he knew or had reason to believe to be likely to cause it.”, Section 313 of the Indian Penal Code is an aggravated form of the offence defined under Section 312 and provides for a harsher punishment if the offence is committed without the consent of the woman whose miscarriage is caused. Section 314 of the Indian Penal Code reads: “Death caused by act done with intent to cause miscarriage. Whoever, with intent to cause the miscarriage of a woman with child, does any act which causes the death of such woman, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; if the act is done without the woman’s consent, the offender shall be punished either with imprisonment for life, or with the punishment above mentioned. Explanation: It is not essential to this offence that the offender should know that the act is likely to cause death.”, A careful perusal of Section 314 shows that to convict a person, it must be established that (i) the woman was with child; (ii) the accused performed an act to cause miscarriage; (iii) the act was done with such intention; (iv) the act caused the death of the woman; and (v) the act was done without the woman’s consent., Now, what remains for decision making is whether Shakun Bai died as a result of a criminal miscarriage caused by Rajesh Kumar., A careful perusal of the post‑mortem report Exhibit P‑12 shows that the dead body of Shakun Bai was having a foetus of 24 weeks and it was safe in the womb of the deceased., Where the child in the womb is fully developed, the accused cannot be convicted of causing miscarriage under Section 312 of the Indian Penal Code because the section contemplates expulsion of the child before the period of gestation is completed. In such cases, the accused could be convicted of an attempt to cause miscarriage under Section 312 read with Section 511 of the Indian Penal Code (see The Queen v. Arunja Bewa and another)., In the present case, as per the post‑mortem report Exhibit P‑12, a foetus of 24 weeks was in the womb of the deceased, though it was safe and dead. There was no expulsion of the child before the period of gestation was completed, as proved by Dr. Shrimati Madhuri Khunte (Witness 12). No definite opinion was given regarding the cause of death or that death occurred during an attempted abortion. Hence, it is established that Shakun Bai was pregnant with a 24‑week foetus and, because there was no expulsion of the embryo or foetus, the act, if any, of appellant Rajesh Kumar (A‑1) does not fall within the meaning of Section 314 of the Indian Penal Code. Moreover, the prosecution failed to prove that such an act caused Shakun Bai’s death or that the appellant intended to cause her death. Since miscarriage itself has not been proved beyond doubt, the other ingredients—intent, causation of death, and lack of consent—are missing. Accordingly, the conviction of A‑1 under Section 314 is set aside and he is acquitted of that charge., It is the submission of Mr. Surendra Singh and Mr. K.A. Ansari, learned Senior Counsel, that since the principal offence under Section 314 of the Indian Penal Code is not established, the conviction of appellants A‑2, A‑3 and A‑4 for an offence under Section 314 read with Section 109 of the Indian Penal Code cannot be sustained and must be set aside., The Supreme Court in Madan Raj Bhandari (supra), relying upon the decision of the Calcutta High Court in Umadasi Dasi v. Emperor, held that as a general rule a charge of abetment fails when the substantive offence is not established against the principal offender, although there may be exceptions. The Gallu case was one such exception., Since, in the present case, the offence under Section 314 of the Indian Penal Code against Rajesh Kumar (A‑1) has been set aside and he is acquitted, and the substantive offence is not established against A‑1, the charge of abetment under Section 314 of the Indian Penal Code against appellants A‑2, A‑3 and A‑4 fails. Their convictions under Section 314 read with Section 109 of the Indian Penal Code are therefore set aside and they are acquitted of the said charge., In the result, all the criminal appeals are allowed. The impugned judgment dated 23 December 2002 passed in Special Case No.128/2001 by the Special Judge, District Court, Rajnandgaon is hereby set aside. The appellants are acquitted of all the charges alleged against them. They are on bail and need not surrender, but their bail bonds shall remain in force for six months in view of the provision contained in Section 437A of the Code of Criminal Procedure., Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned for necessary information and action, if any. A certified copy of the judgment may also be sent to the concerned Jail Superintendent forthwith.
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id_1537
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The present appeal is directed against the judgment and order dated 16 February 2015, passed by the Armed Forces Tribunal, Regional Bench, Lucknow, whereby the appeal originally filed by the appellant as a Writ Petition before the High Court of Judicature at Allahabad and subsequently transferred to the Armed Forces Tribunal, which was dismissed, and the orders dated 24 August 1999 and 4 October 2001 passed by respondents No. 5 and No. 2, respectively, upholding the charge levelled against him under Section 39(b) of the Army Act, 1950, of overstaying the leave granted to him without sufficient cause, thereby dismissing him from service, were endorsed., Briefly stated, the facts of the case are that the appellant was enrolled in the Army Service Corps on 4 January 1983 as a Mechanical Transport Driver. In 1998, he was initially granted leave for 39 days from 8 November 1998 to 16 December 1998. His request for extension of leave on compassionate grounds was denied by the respondents and he was granted advance annual leave for 30 days in 1999, from 17 December 1998 to 15 January 1999. However, the appellant failed to rejoin duty, claiming that his wife had fallen ill and he was arranging her medical treatment and looking after her, and he overstayed the leave granted to him. The petitioner's telephonic request for extension of leave was rejected. On 15 February 1999, a Court of Inquiry was conducted under Section 106 of the Army Act to investigate the circumstances under which the appellant had overstayed leave. The Court opined that the appellant be declared a deserter with effect from 16 January 1999., The appellant finally surrendered after 108 days, on 3 May 1999 at HQ Wing, ASC Centre (South), Bangalore. The charge framed against him was heard by the Commanding Officer under Rule 22 of the Army Rules on 8 July 1999. The appellant declined to cross‑examine any of the witnesses. After recording the Summary of Evidence, a Summary Court Martial was conducted by the Commanding Officer, HQ Wing Depot Company (Mechanical Transport), ASC Centre (South), Bangalore, where the appellant was attached. The Summary Court Martial constituted the Court to conduct the trial and held the appellant guilty and awarded punishment of dismissal from service., Aggrieved by the dismissal order, the appellant preferred an appeal under Section 164 of the Army Act before respondent No. 2, which was dismissed by order dated 4 October 2001. The said orders were challenged by the appellant before the High Court of Judicature at Allahabad by filing a writ petition that was transferred to the Armed Forces Tribunal for decision and was finally dismissed by the impugned order., Mr. Shiv Kant Pandey, learned counsel for the appellant, seeks to assail the impugned order on the ground that the respondents have violated the provisions of Section 39(b) and Section 120 of the Army Act; that the Summary Court Martial could not have awarded punishment of dismissal from service and the maximum punishment was imprisonment for a period of one year; that Section 72, which deals with alternative punishment awardable by the Court Martial, and Section 73, which contemplates a combination of punishments as a sentence of a Court Martial, as set out in Section 71, are not applicable to a Summary Court Martial but only to a General Court Martial or a District Court Martial; and that Regulation 448 of the Defence Service Regulations, 1987 prescribes the scale of punishment awardable by a Summary Court Martial and, in the table of punishments mentioned in the Schedule, absence without leave or overstaying leave features at serial No. 4, which entails a punishment of rigorous imprisonment for three months or less, whereas the appellant has been wrongly imposed such a harsh punishment of dismissal from service. It was thus argued that the punishment of dismissal from service imposed on the appellant was disproportionate to the offence committed., Per contra, Mr. R. Balasubramanian, learned Senior Advocate appearing for the respondents, refuted the arguments advanced by the other side and submitted that the appellant remained a habitual defaulter, as apparent from the number of punishments imposed on him, set out in paragraph 4 of the impugned order. He argued that, contrary to the appellant’s assertion that he reported to his unit on 18 February 1999 but was not allowed entry, the records show that he did not report for duty on expiry of the extended leave and did not provide any documents to support his claim that his wife was seriously ill. The allegation that the procedure followed during the conduct of the Court of Inquiry or the Summary Court Martial was contrary to the Rules was strongly refuted; the Court of Inquiry was conducted under the orders of respondent No. 4 and there was no procedure prescribed for respondent No. 4 to report the matter directly to respondent No. 3. Learned senior counsel concluded that, having pleaded guilty during the Summary Court Martial, the appellant cannot subsequently renounce and question the entire process., We have heard the arguments advanced by learned counsel for the parties and perused the records. The contention of the appellant that he was granted leave for the period between 8 November 1998 and 15 January 1999 and that his request for extension of leave was unreasonably rejected by the respondents, whereupon he returned to the unit on 8 February 1999, thus having overstayed leave only by 34 days, is not borne out from the records. The appellant was granted leave for 39 days from 8 November 1998 to 16 December 1998, and his request for extension was acceded to up to 15 January 1999. When his request for further extension was turned down, the appellant ought to have reported for duty immediately on expiry of the extended leave but he failed to do so. No document was produced by the appellant to demonstrate that he reported to the unit on 18 February 1999. In fact, even in his statement made during the Summary of Evidence, the appellant failed to mention that he had reported to the unit on that date; this appears to be an after‑thought. His statement clearly admits that he left his home and came to Bangalore where he surrendered on 3 May 1999, after remaining unauthorisedly absent for 108 days., The appellant did not place any document on record, such as a treatment summary or medical certificate of his wife, to demonstrate that she was seriously ill and required his presence for constant treatment. Instead, a bare statement was made by him during the Summary of Evidence that he had remained absent without leave on account of his wife’s ill health. Moreover, the appellant failed to cross‑examine any of the prosecution witnesses produced by the respondents during the Summary of Evidence conducted on 12 July 1999. It is noteworthy that during the Summary Court Martial conducted on 24 August 1999, after the charge sheet was read out and explained to the appellant, when he was asked whether he pleaded guilty, he categorically answered in the affirmative, stating “Guilty”. In other words, the appellant pleaded guilty to the charge of having failed to rejoin duty on expiry of the leave granted to him from 8 November 1998 to 15 January 1999., It is also relevant to note that this was not the first occasion when the appellant had remained absent without leave. He had made a habit of remaining absent without leave on earlier occasions. A summary of the punishments for overstay of leave imposed on the appellant under Sections 39(b) and 63 of the Army Act, set out in the impugned judgment, is extracted below: a) Section 63 – 3 days pay fine – 13 July 1987; b) Section 39(a) – 28 days rigorous imprisonment – 12 May 1990; c) Section 39(b) – 28 days rigorous imprisonment and 14 days detention in military custody – 10 December 1990; d) Section 39(b) – 7 days rigorous imprisonment in military custody – 17 November 1995; e) Section 39(b) – severe reprimand and 14 days pay fine – 28 August 1998; f) Section 39(b) – dismissal from service – 24 August 1999., It is apparent from the above table that the appellant was a habitual offender. There were four red‑ink entries and one black‑ink entry against him before the present incident cited at serial number (f) above. Such gross indiscipline on the part of a member of the Armed Forces could not be countenanced. He remained out of line far too often for seeking condonation of his absence of leave, this time for a prolonged period of 108 days, which, if accepted, would send a wrong signal to others in service. Discipline is the implicit hallmark of the Armed Forces and a non‑negotiable condition of service., As for the plea taken on behalf of the appellant that the charge under Section 39(b) is not maintainable or that the provisions of Section 120 provide for a maximum punishment of imprisonment for one year, the same is misconceived. Section 39, falling under Chapter VI of the Army Act, is extracted below for ready reference: “39. Absence without leave. Any person subject to this Act who commits any of the following offences, that is to say, (a) absent himself without leave; or (b) without sufficient cause overstays leave granted to him; or (c) being on leave of absence and having received information from proper authority that any corps, or portion of a corps, or any department, to which he belongs, has been ordered on active service, fails, without sufficient cause, to rejoin without delay; or (d) without sufficient cause fails to appear at the time fixed at the parade or place appointed for exercise or duty; or (e) when on parade, or on the line of march, without sufficient cause or without leave from his superior officer, quits the parade or line of march; or (f) when in camp or garrison or elsewhere, is found beyond any limits fixed, or in any place prohibited, by any general, local or other order, without a pass or written leave from his superior officer; or (g) without leave from his superior officer or without due cause, absents himself from any school when duly ordered to attend there; shall, on conviction by court‑martial, be liable to suffer imprisonment for a term which may extend to three years or such less punishment as is in this Act mentioned.”, It is apparent from a bare reading of the aforesaid provision that, in case of an offence of overstaying leave without sufficient cause, on conviction by a Court Martial, punishment by way of imprisonment for a term that may extend to three years or such less punishment as contemplated in the Act can be imposed. Section 71, which falls under Chapter VII of the Act, deals with punishments that may be inflicted for offences on conviction by the Court Martial, listed in a sliding scale. The punishment of imprisonment is mentioned at sub‑clause (c) whereas dismissal from service is mentioned at sub‑clause (e). Thus, dismissal from service on conviction by Court Martial has been treated as a lesser punishment vis‑à‑vis imprisonment for any period below fourteen years. Therefore, the appellant cannot state that the punishment inflicted on him is graver than that contemplated under the Act., In a case of proportionality of the punishment imposed for unauthorised absence in Union of India and Others v. Ex. No. 6492086 Sep/Ash Kulbeer Singh, this Court turned down the contention made on behalf of the respondent that, instead of subjecting him to a term of imprisonment under Section 39, he had been dismissed from service, which was disproportionate to the offence. The Court held: “Section 39 of the Army Act, 1950 is comprised in Chapter VI which deals with offences. Section 39 provides that on a conviction by the Court Martial for an offence involving absence without leave, a sentence of imprisonment which may extend up to three years may be imposed. Chapter VII which deals with punishments contains Section 71. Clause (e) of Section 71 specifically contemplates the punishment of dismissal from service on conviction by Court Martials. Hence, we find no merit in the first submission.”, The provision of Section 120 of the Act relied on by learned counsel for the appellant is also inapplicable to the facts of the instant case. Section 120 deals with the powers of Summary Court Martial. Sub‑sections (1), (2) and (4) read as follows: “120. Powers of summary courts‑martial. (1) Subject to the provisions of sub‑section (2), a summary court‑martial may try any offence punishable under this Act. (2) When there is no grave reason for immediate action and reference can without detriment to discipline be made to the officer empowered to convene a district court‑martial or on active service a summary general court‑martial for the trial of the alleged offender, an officer holding a summary court‑martial shall not try without such reference any offence punishable under any of the sections 34, 37 and 69, or any offence against the officer holding the court. (4) A summary court‑martial may pass any sentence which may be passed under this Act, except a sentence of death or transportation, or of imprisonment for a term exceeding the limit specified in sub‑section (5).” It is explicit from the aforesaid provision that the section deals with offences punishable under Section 34, Section 37 and Section 69. Sub‑section (2) places an embargo on an officer holding a Summary Court Martial to try any of those offences without reference to a District Court Martial or a Summary General Court Martial. Sub‑section (4) states that a Summary Court Martial may pass any sentence as contemplated under the Act except for a sentence of death or transportation or imprisonment for a term exceeding the limit specified in sub‑section (5). Accordingly, a Summary Court Martial can pass dismissal from service., Regulation 448 of the Defence Service Regulations, cited by learned counsel, contemplated the scale of punishments awardable by a Summary Court Martial. The Regulation states that these are general instructions for the guidance of officers holding Summary Court Martial for passing a sentence and that nothing contained in the Regulation would be construed as limiting the discretion of the Court to pass any legal sentence, even if there is good reason for doing so. Therefore, citing the table of punishments listed under the Schedule appended to Regulation 448 to urge that, for absence without leave or for overstaying leave, the normal punishment being rigorous imprisonment for three years or less, dismissal from service could not have been inflicted, is unacceptable. Sufficient discretion vests in the Summary Court Martial to inflict a higher punishment in the given facts and circumstances of a case. The same is the position under Sections 72 and 73 of the Act. Both sections leave it to the discretion of the Court Martial to award a particular punishment, depending on the nature and degree of the offence. There is no merit in the submission made by learned counsel for the appellant that the said provisions are not applicable to a Summary Court Martial., For the aforesaid reasons, we do not find any infirmity in the impugned judgment passed by the Armed Forces Tribunal. The appellant has taken too many liberties during his service and, despite several punishments awarded to him earlier, ranging from imposition of fine to rigorous imprisonment, he did not mend his ways. This was his sixth infraction for the same offence. Therefore, he did not deserve any leniency by infliction of a punishment lesser than that which has been awarded to him., Accordingly, the present appeal is dismissed as meritless, while upholding the impugned judgment. The parties are left to bear their own costs.
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Neutral Citation Number: 2023:DHC:3630-DB. Judgment reserved on 01 March 2023 and delivered on 24 May 2023. Writ Petition (Civil) 10486/2021 & Civil Miscellaneous No. 32298/2021; Writ Petition (Civil) 10493/2021 & Civil Miscellaneous No. 15428/2022; Writ Petition (Civil) 10519/2021 & Civil Miscellaneous No. 32389/2021; Writ Petition (Civil) 10539/2021 & Civil Miscellaneous Nos. 32491/2021, 32493/2021. Advocates for the petitioner: Mr I.H. Syed, Senior Advocate, with Mr Rahul Sharma and Ms Suroor Mander, Advocates. Advocates for the respondents: Mr Arun Bhardwaj, Senior Advocate and Mr Harish Vaidyanathan Shankar, CGSC, together with Mr Abhishek Sharma, Ms Gauraan, Mr Nishant Bahuguna and Mr Srish Kumar Mishra, Mr Sagar Mehlawat, Mr Alexander Mathai Paikaday, Advocates and Mr A.K. Saran, JS (P‑1) for Respondent/Union of India; Mr Kumar Parimal, Advocate for Respondent No.7; Ms Manisha Lav Kumar, Senior Advocate with Mr Ravi Kant Jain, Advocate for Respondent No.9, State of Gujarat., In Writ Petition (Civil) 10486 of 2021, the petitioner seeks quashing of the judgment dated 22 July 2021 of the Central Administrative Tribunal, Principal Bench in O.A. 452 of 2020 (erroneously referred to as O.A. 454 of 2020 in the judgment) and also seeks quashing of the charge memo dated 28 September 2018. In Writ Petition (Civil) 10493 of 2021, the petitioner seeks quashing of the same judgment dated 22 July 2021 in O.A. 454 of 2020 (erroneously referred to as O.A. 452 of 2020) and also seeks quashing of adverse entries against the petitioner in his annual Performance Appraisal Report for the year 2015‑2016. In Writ Petition (Civil) 10519 of 2021, the petitioner seeks quashing of the judgment dated 22 July 2021 in O.A. 3610 of 2019 and also seeks quashing of the charge memo dated 09 May 2016. In Writ Petition (Civil) 10539 of 2021, the petitioner initially sought quashing of the judgment dated 22 July 2021 in O.A. 453 of 2020 and also sought quashing of the charge memo dated 13 August 2018. The petition was later amended by order of the Supreme Court of India dated 19 September 2022 in Civil Appeal No. 6775 of 2022 arising out of S.L.P. (C) No. 15913 of 2022, adding a request to quash the Departmental Inquiry Report dated 02 December 2020 of the Directorate General, ITBP, Ministry of Home Affairs and to quash the order dated 30 August 2022 dismissing the petitioner from service., By a common judgment dated 22 July 2021, rendered in O.A. No. 452 of 2020 (impugned in Writ Petition (Civil) 10486/2021), O.A. No. 453 of 2020 (impugned in Writ Petition (Civil) 10539/2021) and O.A. No. 3610 of 2019 (impugned in Writ Petition (Civil) 10519/2021), the Central Administrative Tribunal, Principal Bench rejected the petitioner’s challenge to three different charge memos and directed that the disciplinary proceedings be expeditiously concluded. By a judgment also dated 22 July 2021 rendered in O.A. No. 454 of 2020 (impugned in Writ Petition (Civil) 10493/2021), the Tribunal permitted the petitioner to submit a representation to the Competent Authority for deletion of adverse entries and proper evaluation of the Performance Appraisal Report for the year 2015‑2016. Pending consideration of the petitions, the petitioner was dismissed from service by order dated 30 August 2022, which has now been impugned in Writ Petition (Civil) 10539/2021 by amendment., The petitioner is an Indian Police Service officer of the 1986 batch of the Gujarat cadre. A Special Investigation Team was constituted by the High Court of Gujarat to investigate a 2004 incident in which four persons, including a woman named Ishrat Jahan, were killed in a police firing; the petitioner was a member of that team and submitted its report. He was subsequently appointed Chief Vigilance Officer of the North Eastern Electric Power Corporation (NEEPCO) on 08 October 2014 on central deputation., On 13 August 2018, a charge memo was issued by the Ministry of Home Affairs, Government of India, containing four articles of charge. The first charge alleged that the petitioner gave an interview to the news channel India Today on 2 and 3 March 2016 in the official premises of NEEPCO at Guwahati without any authority. The second charge alleged that in the interview he made statements regarding the encounter of a terrorist named Ishrat Jahan in Gujarat, which amounted to adverse criticism of the State and Central Governments. The third charge alleged that he directly communicated official information concerning the interrogation of the then Under‑Secretary in the Ministry of Home Affairs and the contents of affidavits filed by the Government of India before the Gujarat High Court, furnishing details of his official investigation to the press. The fourth charge alleged that he resorted to the press for vindication of official acts that were subject to adverse criticism, to counter statements of Shri G.K. Pillai, then Secretary, Ministry of Home Affairs. A further charge memo dated 28 September 2018 was issued by the Directorate General, CRPF, Ministry of Home Affairs, with four articles of charge, alleging that after being relieved from the post of CVO on 04 July 2016 he failed to hand over relevant files, misused outward numbers to submit reports after his relief, and dispatched ten reports on his own without routing them through the Vigilance Wing. Another memorandum of charge dated 09 May 2016 contained five articles, alleging that the petitioner conducted tours to various places without official work and without intimation to the CMD, failed to submit intimation of visits despite specific instructions, failed to submit inspection reports contrary to CVC instructions, claimed travel allowance of Rs 8,67,488 while being out of headquarters for about 310 days, and submitted a reply to the CMD stating that he had informed in advance about his tours, contrary to prescribed procedure., In the disciplinary proceedings on the charge memo dated 13 August 2018, the Inquiry Authority submitted its report on 02 December 2020 holding all charges proved. The Disciplinary Authority accepted the findings, furnished a copy of the report to the petitioner for his written representation, and rejected his representation dated 27 January 2021, opining that a suitable major penalty may be imposed. The Ministry of Home Affairs referred the matter to the Union Public Service Commission for advice. The UPSC, by its letter dated 01 September 2021, advised that the ends of justice would be met if the penalty of dismissal from service, which ordinarily disqualifies a person from future government employment, were imposed. The Disciplinary Authority accepted this advice, invited the petitioner to submit a further representation (which he did on 09 October 2021), and by order dated 30 August 2022 imposed the penalty of dismissal from service under Rule 7(2) of the All India Services (Discipline and Appeal) Rules, 1969. This order has been challenged by amending Writ Petition (Civil) 10539 of 2021., Mr I.H. Syed, Senior Advocate for the petitioner, submits that the inquiry proceedings relied on unauthorised video footage purportedly downloaded from YouTube, which was neither proved nor authenticated, yet was read as evidence by the Inquiry Authority, UPSC and the Disciplinary Authority. He further submits that the petitioner’s request to hold the hearing of 11 September 2016 by video conferencing was declined and the proceedings were held ex‑parte, during which the unauthenticated video footage and its transcript were exhibited as proved documents without any witness examination. The petitioner’s counsel relies on the Supreme Court decision in State of Uttar Pradesh v. Saroj Kumar Sinha (2010) 2 SCC 772, holding that an inquiry authority must act as an independent adjudicator and examine evidence before concluding that charges are proved. He also cites Roop Singh Negi v. Punjab National Bank & Others (2009) 2 SCC 570, ORYX Fisheries Private Limited v. Union of India & Others (2010) 13 SCC 427, and Kumaon Mandal Vikas Nigam Limited v. Girja Shankar Pant & Others (2001) 1 SCC 182, to argue that the disciplinary proceedings were biased, relied on unverified material, and should be quashed., Mr Arun Bhardwaj, Senior Advocate for the Union of India, counters that the articles of charge have been duly proved and the petitioner has admitted giving the interview to the media without prior permission, not in bona‑fide discharge of his duties, and without clarifying that the views expressed were his own. He submits that the petitioner violated the All India Services (Conduct) Rules, 1968 by speaking to the media in his official capacity, making statements contrary to the Government’s stand, and failing to object to the video recording or produce any defence witness. He further argues that the petitioner’s written brief relied on the same video and transcript, amounting to dereliction of duty, and that the petitioner’s claim of an unplanned interview is contradicted by the video recording. He also states that the petitioner sought adjournments on false pretexts and was warned that proceedings would be taken ex‑parte, but later participated in cross‑examination and relied on the video and transcript in his brief., The charge sheet issued against Shri Satish Chandra Verma, IPS (Gujarat 1986), then CVO, NEEPCO, reads as follows: Article of Charge‑1 – He interacted with the public media on 2 and 3 March 2016 in an interview with India Today at the official premises of NEEPCO, Guwahati, without any authorization, misusing official premises and contravening Rule 3(1) of the All India Services (Conduct) Rules, 1968. Article of Charge‑2 – He made statements on the encounter of terrorist Ishrat Jahan that amounted to adverse criticism of the Central and State Governments, contravening Rules 3(1), 6, 7 and 9 of the Conduct Rules. Article of Charge‑3 – He communicated official information regarding the interrogation of the then Under‑Secretary, Ministry of Home Affairs, and the contents of affidavits filed before the Gujarat High Court, without authority, violating Rules 3(1) and 9. Article of Charge‑4 – He resorted to the press for vindication of official acts, countering statements of Shri G.K. Pillai, thereby violating Rules 3(1) and 17., Relevant provisions of the All India Services (Conduct) Rules, 1968 include: Rule 3(1) – Every member shall maintain absolute integrity and devotion to duty. Rule 6 – No prior government sanction is required to publish a book or contribute to public media, provided the views expressed are personal and not those of the Government. Rule 7 – No member shall make any statement of fact or opinion in any public medium that has the effect of adverse criticism of the Central or State Government, or embarrasses relations between the Central Government and any State or foreign government, unless made in official capacity. Rule 9 – No member shall communicate any official document or information to any person without proper authority. Rule 17 – No member shall, without prior government sanction, approach the press or court for vindication of official acts that have attracted adverse criticism, unless sanction is not conveyed within twelve weeks, in which case the member may assume sanction., The charge sheet therefore states that the petitioner, on 02 and 03 March 2016, interacted with public media and held an interview with India Today at the official premises of NEEPCO without authorization, misused official premises, failed to maintain absolute integrity and devotion to duty, and contravened the provisions of Rule 3(1) of the All India Services (Conduct) Rules, 1968.
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It was also stated that he made a statement of fact and opinion on his communication over public media in the matter of the encounter of a terrorist Ishrat Jahan in Gujarat, which had the effect of an adverse criticism of the action of the Central Government and the State Government, capable of embarrassing the relations between the Central Government and the State Government and of affecting the relationship of India with a neighbouring country. He did not make it clear that the view expressed was his own and not that of the Government and thus contravened provisions of Rule 3(1), Rule 6, Rule 7 and Rule 9 of the All India Services (Conduct) Rules, 1968., It was also stated that the petitioner, without any general or special order of the Government and without acting in good faith in duties assigned to him as Chief Vigilance Officer of North Eastern Electric Power Corporation Limited (NEEPCO), directly communicated official information regarding the interrogation of the then Under Secretary in the Ministry of Home Affairs, Government of India, concerning the affidavits filed by the Government of India before the Gujarat High Court, the investigation about the terrorist or non‑terrorist character of Ishrat Jahan, and the allegation of torture of the then Under Secretary. He also disclosed personal details of officials dealing with the Ishrat Jahan case at the Ministry of Home Affairs and at the State level, which had ramifications for personal safety and national security. Thus he violated Rule 3(1) and Rule 9 of the All India Services (Conduct) Rules, 1968., The charge sheet also stated that, without the prior express or deemed sanction of the Government, he resorted to the press (electronic media) for vindication of official acts that had been the subject of adverse criticism and defamatory attack, taking recourse to the news channel India Today to counter the statements of Shri G.K. Pillai, then Secretary, Ministry of Home Affairs, Government of India, and Shri R.V.S. Mani, then Under Secretary, Ministry of Home Affairs. Thus he violated Rule 3(1) and Rule 17 of the All India Services (Conduct) Rules, 1968., The Inquiry Authority submitted its report on 02.12.2020. Regarding Charge No. 1, the Inquiry Authority noted that during the interview the petitioner expressed his views on many issues, including the terrorist or non‑terrorist character of Ishrat Jahan, the legality and genuineness of the police encounter carried out by Gujarat Police, the contents of the affidavits filed by the Government of India before the Hon’ble Gujarat High Court, the credibility of the statements of Shri R.V.S. Mani, and the alleged torture and brutality meted out to him during the investigation., In respect of Charge No. 1, the Inquiry Authority observed that the petitioner admitted interacting with the media outlet India Today. He emphasized that the interaction was regarding his clarification/reference to the prosecution case at the Central Bureau of Investigation (CBI) court in Ahmedabad. The Inquiry Authority held that the petitioner interacted with the media and informed it about a case not related to his post, criticised the Government, communicated unauthorized information, sought vindication of official acts and misused public property. No prior information was given to the Chairman and Managing Director of NEEPCO or any prior approval obtained from the competent authority., With regard to Charge No. 2, the Inquiry Authority noticed that the petitioner made statements of fact and opinion on public media concerning the genuineness of the encounter carried out by Gujarat Police, the affidavit filed by the Union of India in the Gujarat High Court, remarks by Shri G.K. Pillai, then Secretary, Ministry of Home Affairs, regarding terrorism and national security, and the allegation of torture of Shri R.V.S. Mani. The petitioner did not deny quoting details of the case investigated by him prior to joining NEEPCO, did not clarify that the views expressed were his own, and interacted with the media without authorization on issues unrelated to his assignment. The Inquiry Authority held that his communication had the effect of an adverse criticism of the actions of the Central Government and the State Government of Gujarat, capable of embarrassing their relations and affecting India’s relationship with a neighbouring country., In respect of Charge No. 3, the Inquiry Authority held that the petitioner, without any general or special order of the Government and without acting in good faith in duties assigned to him as Chief Vigilance Officer of NEEPCO, directly communicated official information regarding the terrorist or non‑terrorist character of Ishrat Jahan, the contents of the affidavit filed by the Union of India in the Gujarat High Court, the allegation of torture of the then Under Secretary in the Ministry of Home Affairs, and also gave out personal details of officials dealing with the Ishrat Jahan case at the Ministry of Home Affairs and at the State level. Such communication had ramifications for personal safety and national security and was made by a person not authorized to disclose such documents or information., Regarding Charge No. 4, the Inquiry Authority noted that the petitioner, without the prior express or deemed sanction of the Government, interacted with the media for vindication of official acts, which were not of a private character or performed in his personal capacity., The Inquiry Authority also observed that the petitioner attempted to deviate and delay the inquiry proceedings, failed to cooperate, made allegations of bias against the Inquiry Authority before the preliminary hearing, sought undue time for various issues, raised unrelated matters and even raised an issue of loss of faith., The Inquiry Authority concluded that the Charged Officer (CO) himself acknowledged interacting with the media on the said dates and did not dispute providing information to the media about investigations done during his earlier posting, which had no direct or indirect relation to his present posting as Chief Vigilance Officer of NEEPCO. No prior intimation or approval was obtained from NEEPCO or the Government of India before the interaction. During the interaction the CO informed the media about cases and inquiries unrelated to his post, claimed to be safeguarding the prosecution case at CBI, and gave details of the interrogation of the then Under Secretary in the Ministry of Home Affairs, the affidavits filed before the Hon’ble Gujarat High Court, the investigation into the terrorist or non‑terrorist character of Ishrat Jahan, the allegation of torture of the Under Secretary, and personal details of officials dealing with the case at the Ministry of Home Affairs and State level. These statements had the effect of an adverse criticism of the actions of the Central Government and the State Government, capable of embarrassing their relations and affecting India’s relationship with a neighbouring country. The CO interacted with the media without prior sanction for vindication of official acts and countered statements made by Shri G.K. Pillai and Shri R.V.S. Mani., The Inquiry Authority therefore concluded that all the charges against the petitioner were proved., The Union Public Service Commission, in its opinion to the Government, held that at the time of his interaction with the media the petitioner was holding the post of Chief Vigilance Officer of NEEPCO and was not competent to officially interact with the media on issues related to the alleged encounter involving Ishrat Jahan. It observed that the petitioner had voluntarily tried to clarify the position on various issues, did not obtain permission for interacting with the media in the premises of NEEPCO, and did not make it clear that the views expressed were his own. The views were capable of embarrassing the relations between the Central Government and the State Government of Gujarat and of affecting the relationship of India with a neighbouring country., The Commission, after examining the Inquiry Report and the defence raised by the petitioner, concluded that the Member of Service (MOS) had interacted in an interview with the news channel at the official premises of NEEPCO, Guwahati, without any authorization or permission from the competent authority, and spoke on matters outside the sphere of his official duties. The MOS misused official premises, a public property, and his statements on the encounter of Ishrat Jahan, the interrogation of the then Under Secretary, Ministry of Home Affairs, and the affidavits filed before the Hon’ble Gujarat High Court were capable of adverse criticism of the actions of the Central Government and the State Government of Gujarat, and of embarrassing their relations and affecting India’s relationship with a neighbouring country. Accordingly, the MOS grossly and deliberately failed to maintain absolute integrity, devotion to duty, and acted in a manner unbecoming of a public servant, wilfully contravening Rule 3(1), Rule 6, Rule 7, Rule 9 and Rule 17 of the All India Services (Conduct) Rules, 1968. All the charges, Articles 1 to 4, were conclusively proven., The Commission advised the competent authority that the charges established against the MOS constitute grave misconduct and that the ends of justice would be met by imposing the penalty of dismissal from service, which ordinarily entails disqualification for future employment under the Government, on the MOS, Shri Satish Chandra Verma., By order dated 30.08.2022, the Disciplinary Authority, after examining the petitioner’s representation, imposed the penalty of dismissal from service, which shall ordinarily be a disqualification for future employment under the Government, on the petitioner., It may be noticed that the main challenge to the impugned order is that the Inquiry Authority and the Disciplinary Authority relied upon unauthorised video footage purportedly downloaded from YouTube, and neither the footage nor the transcript has been proved., The petitioner has not contended at any point, even before this Court, that he did not interact with the media on 02.03.2016 and 03.03.2016. In fact there is a clear admission that he did interact with the media, and it is not in dispute that he had no prior permission or authorisation for the interaction., Although an attempt was made to claim that media persons forcibly entered the premises and started questioning him, this contention is not substantiated. The video shows the petitioner sitting with a microphone attached to his lapel and answering questions. A copy of the video footage along with its transcript was provided to the petitioner, and he has not disputed the contents of either the footage or the transcript. He does not allege that the contents are doctored, edited or altered; his only contention is that the video is a download from YouTube and has not been proved in accordance with law., The Inquiry Authority also noted that a copy of the video and transcript was provided to the petitioner, who was given an opportunity to raise objections and raised none. The petitioner, in his written brief to the Inquiry Authority, relied upon the transcript to justify the interaction, contending that it shows he was clarifying evidence contained in the prosecution case of the Government, affidavits before the Supreme Court as well as the Gujarat High Court, and the order passed by the Gujarat High Court. He has not claimed the transcript is incorrect or doctored., The petitioner has not denied the interaction with the media, nor the lack of permission or authorisation to speak to the media, nor that he spoke about the encounter and issues beyond the scope of his duties as Chief Vigilance Officer of NEEPCO. Clearly, the interaction was not in the bona‑fide discharge of his duties. He also did not specify that the views expressed were his own and not those of the Government., It is not in dispute that the comments made by the petitioner pertained to proceedings pending in a High Court of Gujarat. The petitioner, in his written brief to the Inquiry Authority and in this petition, contended that it was his duty to safeguard the prosecution case he had investigated as an officer of the Gujarat High Court in an extraordinary situation when members of the ruling party were speaking against the prosecution case of the Government, while the CBI remained silent despite a sustained media campaign raising false doubts about the prosecution case, which was the result of a CBI investigation closely monitored by the Gujarat High Court. This shows that the petitioner relied upon the video footage and transcript to justify his media interaction., Regarding the Inquiry Authority’s refusal to grant an adjournment and its taking on record the video footage and transcript, the Inquiry Authority recorded that the petitioner was attempting to delay the proceedings and was cautioned that the proceedings would be conducted ex‑parte., The petitioner contended that he sought an adjournment on 11.09.2020 on the ground of lockdown. The request was declined, and the Inquiry Authority permitted the video recording and transcript to be taken on record. The lockdown had already been lifted, the petitioner appeared on 18.09.2020, participated in the proceedings and cross‑examined the witness. He has not shown any prejudice caused to him by the proceedings of 11.09.2020. As noted above, the petitioner never objected to the contents of the video or transcript and does not claim they are doctored, edited or incorrect. Instead, he relies upon them to substantiate his defence., The reliance placed by learned Senior Counsel for the petitioner on the Supreme Court decision in State of Uttar Pradesh v. Saroj Kumar Sinha is misplaced. The Supreme Court held that an inquiry officer in a quasi‑judicial authority must act as an independent adjudicator and not as a representative of the department or Government. The Inquiry Authority independently considered all material placed before it, assessed the petitioner’s written brief, and concluded that the unrebated evidence was sufficient to hold that the charges were proved. No material was placed on record to suggest that the Inquiry Authority failed to act independently., The reliance on the Supreme Court decision in Roop Singh Negi is also misplaced, as the petitioner has not shown that the Inquiry Authority failed to act as a quasi‑judicial authority or ignored relevant material., The reference to the Supreme Court decision in ORYX Fisheries Private Limited is likewise misplaced and not substantiated by the record., The Supreme Court decision in Deputy General Manager (Appellate Authority) v. Ajai Kumar Srivastava (2021) 2 SCC 612 held that strict rules of evidence are not applicable to departmental enquiry proceedings, but the allegation against the delinquent must be established by evidence on which a reasonable and objective person may arrive at a finding upholding the gravity of the charge. Mere conjecture or surmise cannot sustain a finding of guilt., The Supreme Court in Kumaon Mandal Vikas Nigam Limited v. Girja Shankar Pant & Others (2001) 1 SCC 182 observed that while the disciplinary authority is the sole judge of facts in a departmental proceeding, judicial review is available to ensure that findings are not based on no evidence, are not wholly perverse, and do not shock the conscience of the court., The Supreme Court in R. Mahalingam v. T.N. Public Service Commission (2013) 14 SCC 379 explained that judicial review of disciplinary actions is limited to verifying that the enquiry was held by a competent authority in accordance with prescribed procedure and that the rules of natural justice were followed, and that there is tangible evidence supporting the charge., The Supreme Court in Apparel Export Promotion Council v. A.K. Chopra (1999) 1 SCC 759 outlined that the High Court, in its writ jurisdiction, may not normally interfere with factual findings of a departmental enquiry unless those findings are based on no evidence, are wholly perverse, or legally untenable. The High Court cannot substitute its own conclusion for that of the departmental authority unless the penalty imposed is impermissible or shocks the conscience., In summary, judicial review is directed at the decision‑making process, not at the merits of the decision itself. It ensures that the individual receives fair treatment and that the administrative authority has followed the principles of law and natural justice. Where the authority has complied with procedural requirements and the findings are reasonably supported by evidence, the court will not substitute its judgment for that of the administrative authority.
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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 of India in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry, or where the authorities have disabled themselves from reaching a fair decision by considerations extraneous to the evidence and the merits of the case, or by allowing themselves to be influenced by irrelevant considerations, or where the conclusion on its face is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion. But the departmental authorities, if the enquiry is otherwise properly held, are the sole judges of facts and if there is 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 of India in a proceeding for a writ under Article 226 of the Constitution., The Supreme Court in the case of Union of India versus P. Gunasekaran, (2015) 2 SCC 610, laid down the parameters for interference by the High Court in departmental proceedings as follows: despite the well‑settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226 and 227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether the enquiry is held by a competent authority, the enquiry is held according to the procedure prescribed, there is violation of the principles of natural justice in conducting the proceedings, the authorities have disabled themselves from reaching a fair conclusion by considerations extraneous to the evidence and merits of the case, the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations, the conclusion on its face is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion, the disciplinary authority erroneously failed to admit admissible and material evidence, the disciplinary authority erroneously admitted inadmissible evidence which influenced the finding, or the finding of fact is based on no evidence., Under Articles 226 and 227 of the Constitution of India, the High Court shall not reappreciate the evidence, interfere with the conclusions in the enquiry if the enquiry has been conducted in accordance with law, go into the adequacy of the evidence, go into the reliability of the evidence, interfere where there is some legal evidence on which findings can be based, correct the error of fact however grave it may appear to be, or go into the proportionality of punishment unless it shocks the conscience., As noticed hereinabove, there is no denial to the fact that the Petitioner interacted with the press in respect of issues that were not within the scope of his duties. The Petitioner has not disputed that he interacted with the media on 02.03.2016 and 03.03.2016. It is also not in dispute that he did not have any prior permission or authorisation for the interaction. At no point of time has the petitioner disputed the contents of either the footage or the transcript. It is not the case of the Petitioner that the contents are doctored, edited or altered., Further, the Petitioner in his written brief to the Inquiry Authority has also relied upon the transcript to justify the interaction. He has also not denied that he did speak about the encounter and issues that were not within the sphere of his duties at North Eastern Electric Power Corporation Limited as Chief Vigilance Officer, NEEPCO. Comments made by the Petitioner to the media pertained to proceedings which were pending in a court of law., Clearly, this case does not fall within the category of cases where the findings returned by the Inquiry Authority are based on no evidence. Further, in view of the fact that the Petitioner has not been able to show any procedural irregularity or violation of the principles of natural justice and fair play, we do not find any reason to interfere with the findings returned by the Inquiry Authority or the order passed by the Disciplinary Authority., We may note that the Petitioner had consciously impugned the order dated 30.08.2022 passed by the Disciplinary Authority directly before us by amending the pending Writ Petition (Writ Petition (Civil) 10539/2021) without availing of the remedy of an appeal to the Appellate Authority and without approaching the Central Administrative Tribunal., In view of the above, we find no merit in the Writ Petition (Civil) 10539 of 2021 where the Petitioner had initially sought quashing of the Judgment dated 22.07.2021 of the Central Administrative Tribunal, Principal Bench in O.A. 453 of 2020; quashing of the charge memo dated 13.08.2018; and, after amendment, quashing of the Departmental Inquiry Report dated 02.12.2020 of the Directorate General, Indo‑Tibetan Border Police, Ministry of Home Affairs, and the order dated 30.08.2022 dismissing the petitioner from service. The same is accordingly dismissed., In view of the fact that the dismissal of the Petitioner from service has been upheld, we are of the view that Writ Petition (Civil) 10486 of 2021 (wherein the Petitioner seeks quashing of the Judgment dated 22.07.2021 of the Central Administrative Tribunal, Principal Bench in O.A. 452 of 2020, and of the charge memo dated 28.09.2018), Writ Petition (Civil) 10493 of 2021 (wherein the Petitioner seeks quashing of the Judgment dated 22.07.2021 of the Central Administrative Tribunal, Principal Bench in O.A. 454 of 2020, and of adverse entries against the Petitioner in his annual Performance Appraisal Report for the year 2015‑2016), and Writ Petition (Civil) 10519 of 2021 (wherein the Petitioner seeks quashing of the Judgment dated 22.07.2021 of the Central Administrative Tribunal, Principal Bench in O.A. 3610 of 2019, and of the charge memo dated 09.05.2016) are rendered infructuous. The same are accordingly dismissed as infructuous.
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Applicant 1: aged about 50 years, occupation Business, resident of Khat Road, Bhandara, Taluka and District Bhandara. Applicant 2: Abhay, son of Ramesh Bhagwat, aged about 49 years, occupation Business, resident of Ramayan Nagari, Khat Road, Bhandara, Taluka and District Bhandara. Applicant 3: Dr. Gopal, son of Satyanarayan Vyas, aged about 48 years, occupation Orthopedic Surgeon, resident of Takiya Ward, Bhandara, Taluka and District Bhandara. Applicant 4: Manish, son of Omprakash Saraf, aged about 47 years, occupation Business, resident of MIDC, Wardha, Taluka and District Wardha. Applicant 5: Sameer, son of Kamlakar Deshpande, aged about 55 years, occupation Business, resident of Surendra Nagar, Nagpur, Taluka and District Nagpur., Respondent: The State of Maharashtra through Police Station Officer, Police Station Umred, District Nagpur. Mr. A. A. Naik, Advocate for Applicants. Mr. S. S. Doifode, Additional Public Prosecutor for Non-Applicant/State., Admitted. By consent of the parties, this application invoking the inherent jurisdiction of the High Court of Maharashtra under Section 482 of the Code of Criminal Procedure, 1973 for quashing First Information Report No. 0300 of 2023 dated 31 May 2023 registered at Umred Police Station, Nagpur Rural for offences punishable under Sections 294 and 34 of the Indian Penal Code, 1860; Sections 110, 131A, 33A, 112 and 117 of the Maharashtra Police Act, 1951; and Section 65(e) of the Maharashtra Prohibition Act, 1949, is heard and disposed of finally., The facts in brief that have led to the filing of the present application are as follows: (a) Police Sub‑Inspector Ashish Morkhade received secret information on 31 May 2023 that an obscene dance was being performed at a banquet hall in Tiger Paradise Resort and Water Park, Tirkhura, and that the audience was showering dummy currency notes on the scantily dressed women. (b) Based on the secret information, police officials raided the banquet hall and lodged an FIR pursuant to the complaint of the police officer. The FIR records that after entering the hall, the officials witnessed six women wearing short clothes and dancing indecently, while the audience showered fake notes of denomination Rs 10 on these women. The FIR further records that some onlookers were consuming alcohol. Twelve names of onlookers were disclosed, of which Applicants 1 to 5 are respectively Accused 1, 2, 3, 5 and 6 as arrayed in the FIR. (c) The FIR further reveals that three bottles of foreign liquor were found with Arun Abhay Mukharji (Accused 12 in the FIR) at the banquet hall, along with a disc jockey music system, audio system, sound level system, laptops and other equipment. These were attached under a seizure panchanama along with the dummy notes. (d) The six dancers were also named in the FIR as Accused 13 to 18. The FIR records that, based upon these facts, the five Applicants, amongst the eighteen accused, have committed offences punishable under Section 294 of the IPC read with Section 34, Sections 110, 131A, 33A, 112 and 117 of the Maharashtra Police Act, 1951 and Section 65(e) of the Maharashtra Prohibition Act, 1949., The four main grounds raised in the application seeking quashment of the FIR and argued by the learned Advocate for the Applicants, Mr. Akshay Naik, are: (a) The specific ingredients of Section 294 of the IPC have not been made out on a plain reading of the FIR, as there is no reference that any person or the complainant experienced annoyance by witnessing the dancing girls. (b) The dance performance was within a banquet hall of a resort, which was neither a public place nor open to public view for any member of the public to feel annoyance. (c) The acts complained of by the women performing the dance cannot be termed obscene acts within the meaning of Section 294 of the IPC; the opinion of a police officer that the women were scantily dressed or dancing provocatively does not make an offence under that provision. (d) The offences under Sections 110, 131A, 33A, 112 and 117 of the Police Act and Section 65(e) of the Prohibition Act have also not been made out against the Applicants because the FIR contains no specific material that the Applicants indulged in sale, purchase or possession of foreign liquor, and the liquor bottles were found in the banquet hall. Consequently, Section 65(e) is not attracted. Moreover, Sections 110 and 112 do not apply since the banquet hall was not a public place as defined under Section 2(13) of the Police Act, and there is no allegation that the Applicants indecently exposed themselves, used indecent language or misbehaved. Section 131A applies only to places of public entertainment, dancing schools or eating houses, not to a privately hired banquet hall. Section 33A has been struck down as ultra vires by this Court and is not on the statute book., In support of the above contentions, the Applicants rely on a Division Bench judgment of this Court interpreting Section 294 of the IPC in Amardeep Singh Chudha and Others v. State of Maharashtra, reported in 2016 SCC OnLine (Bombay) 2286, to contend that the provision can be invoked only where the premises where the offence is alleged to have taken place are accessible to the public at large with free ingress. To further buttress the argument that Section 294 does not get attracted merely because, in the opinion of the police, the manner in which the girls were dressed or their style of dancing was obscene or provocative, the learned Advocate for the Applicants relied upon a judgment of the Supreme Court in Indian Hotel and Restaurant Association (Ahar) and Others v. State of Maharashtra, reported in (2019) 3 SCC 429., In answer to the allegations made in the application, the Non‑Applicant filed an affidavit‑in‑reply dated 19 July 2023 through the Police Sub‑Inspector, P.S. Umred, Nagpur, contending that the entire raid was conducted on the basis of secret information that an obscene dance was being performed by women in short clothes at the resort, and that during the raid six girls were seen dancing indecently and making obscene gestures. The affidavit further reveals that the customers were also dancing with the girls and showering dummy currency notes on them, thereby substantiating the filing of the FIR., The learned Advocate Mr. Akshay Naik for the Applicants and Mr. S. S. Doifode, learned Additional Public Prosecutor for the Non‑Applicant/State, were heard, their submissions recorded, and the record of the FIR was perused., The first question for decision is whether the FIR discloses, on a plain reading of the facts, an offence under Section 294 of the IPC against the five Applicants. Section 294 reads: 'Obscene acts and songs. Whoever, to the annoyance of others, (a) does any obscene act in any public place, or (b) sings, recites or utters any obscene song, ballad or words, in or near any public place, shall be punished with imprisonment for a term which may extend to three months, or with fine, or with both.', Before examining the ingredients of this offence, it must be noted that Section 294 is included in Chapter XIV of the IPC, dealing with offences affecting public health, safety, convenience, decency and morals. Although the provision provides for a punishment of up to three months imprisonment or fine and is otherwise classified as a non‑cognizable offence, the legislature has classified it as a cognizable and non‑compoundable offence., For an offence under Section 294 to be committed, the accused must primarily commit an obscene act or sing, recite or utter an obscene song, ballad or words. Both clauses (a) and (b) require that the act be committed in a public place, or in the case of clause (b), that the obscene words be sung/recited/uttered near a public place, meaning they must be audible to the general public. Section 294 further requires that the obscene act or song, after being seen or heard, cause annoyance to others, implying a specific complaint by persons in the immediate vicinity., Adverting to the specific statement in the FIR, it is clear that there is no allegation that the five Applicants themselves indulged in any obscene act. The prosecution does not allege that clause (b) of Section 294 is attracted, as there is no allegation that even the remaining accused sang, recited or uttered any obscene song or words. Hence, on a plain reading of the FIR, no offence under Section 294 can be said to be made out against the Applicants. The only allegation of an obscene act by the police is against Accused 13 to 18, who are said to have dressed in short skirts and danced provocatively. No similar allegation is made against the five Applicants., The Applicants also argue that the alleged acts of obscenity were not committed in a public place. The FIR states that the incident occurred in a banquet hall at a resort. Although the Applicants had hired one of the rooms, the FIR clearly sets out that the obscene act of the scantily clad women dancing took place in a banquet hall. There is no record establishing that the banquet hall was an enclosed space with restrictive entry and not open to public access., This Court has dealt with a similar fact situation in Narendra H. Khurana and Others v. Commissioner of Police, reported in 2000 (2) Mh. L.J. 72, holding that an enclosed area in a posh hotel where cabaret dance is performed cannot be said to be a private place merely because entry is restricted to persons purchasing tickets. Such a venue remains a public place as it is accessible to all, subject to reasonable restrictions., The Indian Penal Code does not define 'public place'. Therefore, to determine whether a place falls within the meaning of public place for the purpose of Section 294, the facts of each case must be examined. Applying the reasoning in Narendra H. Khurana to the present case, a banquet hall in a resort, in the absence of material showing exclusive private use by the Applicants or other accused, must be held to be a public place within the meaning of Section 294., The learned Additional Public Prosecutor argues that Section 294 squarely applies because secret information from members of the public indicated that obscene acts were being committed by Accused 13 to 18, and that the five Applicants, as part of the group participating in the obscenity, would be equally responsible. He submits that the complaint records that the ladies were in short skirts and dancing provocatively, which can be considered an obscene act under clause (a) of Section 294. The Applicants' counsel opposes this, stating that the case amounts to moral policing and that prosecution cannot be based merely on the subjective morality or perception of the complainant., The Applicants refer to the Supreme Court judgment in Indian Hotel and Restaurant Association (Ahar) and Others v. State of Maharashtra, reported in (2019) 3 SCC 429, which dealt with the challenge to the validity of certain provisions of the Maharashtra Prohibition of Obscene Dance in Hotels, Restaurants and Bar Rooms and Protection of Dignity of Women (Working Therein) Act, 2016. Paragraph 8 of that judgment discusses Section 2(8) of the Act, defining obscene dance as a dance obscene within the meaning of Section 294 of the IPC, and addresses the arguments of morality raised by the prosecution., The Supreme Court observed that while society may perceive certain activities as immoral, the State cannot impose its own notion of morality to restrict activities that are not immoral by societal standards, and any legislation must satisfy constitutional provisions., The judgment also upheld the provision prohibiting the throwing or showering of coins, currency notes or any monetizable article on the stage, stating that such practice must be included in the bill rather than given directly to performers, to protect the dignity of women., The Court also referenced State of Maharashtra & Others v. Indian Hotel & Restaurants Association & Others, Civil Appeal No. 2705 of 2006, reported in (2013) 8 SCC 519, where the Supreme Court struck down Section 33A of the Bombay Police Act, 1951 as ultra vires Article 19(1)(g) of the Constitution., In Pawan Kumar v. State of Haryana and Others, reported in (1996) 4 SCC 17, the Supreme Court held that to secure a conviction under Section 294 of the IPC, the prosecution must prove two particulars: (i) the offender did an obscene act in a public place or sang, recited or uttered obscene songs or words in or near a public place; and (ii) the act caused annoyance to others. If any element is missing, the offence is not committed., Therefore, the respondents were required to produce the copy of the judgment whereby the appellant was convicted for the offence.
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As was expected only a copy of the institution/summary register maintained by the Chief Judicial Magistrate, Bhiwani was placed before us showing that the appellant on 4-6-1980 was imposed a fine of Rs.20/-. A copy of the treasury challan supporting that the fine paid was deposited by the Chief Judicial Magistrate the same day has also been produced. The copy of summary register neither discloses the substance of the allegations put to the appellant, nor the words in which the plea of guilt was entered. It is of no significance that the appellant treats himself a convict as he had pleaded guilty. Ex facie it only shows that the entry concerns First Information Report No.231/3-6-1980 under Section 294 of the Indian Penal Code. Therefrom it is difficult to discern the steps taken in the summary trial proceedings and what had the appellant pleaded to as guilty, whether to the allegations in the FIR or to the provision of the Indian Penal Code or any other particular? Mere payment of fine of Rs.20 does not go to show that the conviction was validly and legally recorded. Assuming that the conviction is not open to challenge at the present juncture, we cannot but deprecate the action of the respondents in having proceeded to adversely certify the character and antecedents of the appellant on the basis of the conviction per se, opining to have involved moral turpitude, without satisfying the tests laid down in the policy decision of the government., We are rather unhappy to note that all the three courts below, even when invited to judge the matter in the said perspective, went on to hold that the act(s) involved in conviction under Section 294 of the Indian Penal Code per se established moral turpitude. They should have been sensitive to the changing perspectives and concepts of morality to appreciate the effect of Section 294 of the Indian Penal Code on today's society and its standards, and its changing views of obscenity. The matter unfortunately was dealt with casually at all levels., Whilst on the subject, we also quote the observations of the Supreme Court of India in Narendra H. Khurana on the interpretation of the provision of Section 294 of the Indian Penal Code and the ingredients to be proved to sustain a conviction. It has been held thus: At the outset, we must refer to the provision of Section 294 of the Indian Penal Code. \294. Obscene acts and songs. Whoever, to the annoyance of others, (a) does any obscene act in any public place, or (b) sings, recites or utters any obscene song, ballad or words, in or near any public place, shall be punished with imprisonment of either description for a term which may extend to three months or with fine, or with both.\ Therefore, the object and scope of the said provision is intended to prevent an obscene act being performed in public to the annoyance of the public at large. The essential ingredients of the offence under this Section are as follows: (i) an act must have been done in a public place; (ii) the said act must be obscene; and (iii) the same must cause annoyance to others. Time and again it is well established that mere performance of an obscene or indecent act is not sufficient but there must be further proof to establish that it was to the annoyance of others. Annoyance to others is essential to constitute an offence under this Section. Where there is no evidence recorded about the language used or act done causing annoyance to anybody, a conviction under this Section cannot be sustained. From the wording of this Section it is clear that annoyance should be caused to the others. This Section does not limit the scope of the word \others\ to mean the person who is the intended victim of the obscene act. It is enough if the obscene act is committed in public and causes annoyance to anybody, be he the contemplated victim of the offender or not., This being the established legal position, let us now turn to the two rulings of the Supreme Court of India of the learned Single Judges. Justice Vaidya in his judgment in the case of State of Maharashtra v. Miss Joyce reported in I.L.R. (1973) Bom. 1299, had occasion to deal with the dilemma with which we are dealing today. Incidentally, the case arose from the incident which took place at Blue Nile Hotel. The learned Single Judge observed that, when an adult person pays and goes to attend such show he runs the risk of being annoyed by the obscenities or being entertained by the very obscenities according to his taste. Some persons so going may be disappointed with the absence of obscenities. Even assuming that the hotel where anybody can buy tickets or seats is considered to be a public place, it cannot, therefore be said that the obscenity and annoyance which are punishable under Section 294 of the Indian Penal Code are caused without the consent, express or implied, of the adult persons attending such cabaret dance on the floor of the hotel. He further expresses his doubt whether a hotel like Blue Nile could be considered to be a public place as contemplated by Section 294 of the Indian Penal Code when an admission fee is required to be paid for cabaret shows. He also relied on the unreported judgment of Justice Rege in Criminal Appeal No. 1541 of 1971 decided on 20-6-1973. Justice Rege in his judgment observed thus: \Looking to the wording of the Section, therefore, the question as to an act being to the annoyance of the others cannot be considered objectively without reference to the persons actually witnessing the act. It cannot be the intention of the Legislature that even if a particular obscene act done in a public place is enjoyed by all those witnessing the same without in any way getting annoyed thereby, it can still be considered to be an offence under the Section, if looking at it objectively, the Court finds that it would have annoyed others who were not actually present to witness the said act. In my view, the wording of Section 294 does not admit of any such a wide interpretation. The Court will have to find out from the evidence whether any persons at a given time witnessing a particular obscene act was actually annoyed or not.\ Taking into consideration the up‑to‑now established position as reflected by judgments of the Single Judges referred to above, it appears to be the rule that the wording of Section 294 does not admit of any wide interpretation than what can be gathered from the plain reading thereof. In this reference, the learned Single Judge (S. S. Parkar, J.) has expressed apprehension that such interpretation may lead to undesirable consequences especially if we take into account our cultural thoughts and moral standards of our civilization. It is indeed true that our society has not yet come to appreciate such performances or conduct in public. However, in our considered view, we cannot overlook the plain meaning of the legislative enactment in this regard i.e. the wording of Section 294 of the Indian Penal Code., Fortified by the ratio laid down in the aforementioned judgments of the Honourable Supreme Court of India and of this Court, we are constrained to reject the submissions made by the learned Additional Public Prosecutor, both on the question of claims of the complainant that the girls found dancing in skimpy clothes were indulging in obscene or immoral acts as also the submission that the First Information Report would disclose that such acts were to be annoyance of others., We are of the considered opinion that the acts of the Accused Nos. 13 to 18 referred to in the complaint/First Information Report, namely wearing short skirts, dancing provocatively or making gestures that the Police Officials consider obscene cannot be termed to be per se obscene acts, which could cause annoyance to any member of the public. Whilst holding so, we are mindful of the general norms of morality prevalent in present Indian Society and take judicial note of the fact that in present times it is quite common and acceptable that women may wear such clothing, or may be clad in swimming costumes or such other revealing attire. We often witness this manner of dress in films which pass censorship or at beauty pageants held in broad public view, without causing annoyance to any audience. Surely the provisions of Section 294 of the Indian Penal Code would not apply to all this situation and we are unable to countenance a situation where acts such as the ones referred to in the First Information Report would be judged by a Police Officer, who in his personal opinion considers them to be obscene acts to cause annoyance to any member of the public. Taking a narrow view as to what acts could constitute an obscenity would be a retrograde act, on our part. We prefer taking a progressive view in the matter and are unwilling to leave such a decision in the hands of Police Officials. In any event, there is no averment or allegation made in the First Information Report that the five Applicants have indulged in any acts of obscenity or that any of the remaining Accused, including Accused Nos. 13 to 18 have committed acts of obscenity that cause annoyance to members of public. There is no fact stated in the complaint that any specific person felt a sense of annoyance. Consequently, we hold that the ingredients of an offence under Section 294 of the Indian Penal Code are not made out in the First Information Report/complaint dated 31.05.2023., We shall now deal with the contentions of the Applicants that the First Information Report does not disclose the ingredients of an offence under Sections 110, 112 or Section 131A of the Maharashtra Police Act or an offence under Section 65(e) of the Maharashtra Prohibition Act. Section 65(e) of the Prohibition Act provides for a penalty for acts of sale or purchase or possession of any intoxicant such as liquor, in contravention of the provisions of the Act and Rules made thereunder. There is no statement alleging that the Applicants were either in possession or had purchased liquor in contravention of any licence or any provision or rule of the Prohibition Act. Though three bottles of liquor were seized, there is no averment in the complaint that they were seized from the possession of the present Applicants. Thus, the offence under Section 65(e) has not been made out., Section 110 of the Maharashtra Police Act deals with indecent exposure by a person in a street or public place in a manner as to be seen from any public place. Section 112 of the Maharashtra Police Act states that no person shall use in any public place any threatening, abusive or insulting words or behave with intent to provoke a breach of peace. There is not a single averment in the entire First Information Report which alleges against the Applicants any act of indecent exposure or any act of the use of abusive language such that it would provoke a breach of peace. Section 131A prescribes a penalty for failure to obtain a licence under the Police Act in respect of a public entertainment or a place in which a dancing school is conducted. This provision would clearly apply only to occupier of such a place for public entertainment and not to the Accused Nos. 1, 2, 3, 5 and 6 (Applicants herein), against whom there is no allegation in the complaint that they were the owners or occupiers of the Banquet Hall or even that the Banquet Hall was a place of public entertainment or used for conducting a dancing school. Strangely, even though the provisions of Section 33A of the Maharashtra Police Act have been struck down by this Court in Indian Hotel & Restaurants Association as being ultra vires the Constitution, and that judgment has been upheld by the Honourable Supreme Court of India in State of Maharashtra & Anr. vs. Indian Hotel & Restaurants Association & Ors., the First Information Report has also been filed under this provision. Considering that Section 33A is no longer on the statute book, the Applicants cannot be prosecuted under that provision. Consequently, we are of the considered opinion that none of the ingredients of Sections 110 and 112 of the Maharashtra Police Act can be attracted in the present case as there are no allegations made in the First Information Report that can substantiate applying these provisions., For all the reasons stated above, we do not find that there is any material in the First Information Report/complaint impugned in this application on the basis of which the offences under Sections 294 and 34 of the Indian Penal Code, 1860, Sections 110, 131A, 33A, 112 and 117 of the Maharashtra Police Act, 1951 and Section 65(e) of the Maharashtra Prohibition Act, 1949 can be investigated or prosecuted. Consequently, we find that this is a fit case to exercise our inherent jurisdiction under Section 482 of the Code of Criminal Procedure, 1973 to quash the First Information Report No.0300 of 2023 dated 31.05.2023 registered at Umred Police Station, Nagpur Rural for the offences punishable under Sections 294 and 34 of the Indian Penal Code, Sections 110, 131A, 33A, 112 and 117 of the Maharashtra Police Act and Section 65(e) of the Maharashtra Prohibition Act, against the Applicants. We order accordingly.
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Appearance: Mr. Kishore Dutta, Learned Advocate General for the State. Respondents: Mr. Dhiraj Trivedi, Learned Deputy Solicitor General; Mrs. Debjani Ray, Advocate; Mr. Samrat Goswami, Advocate; Mr. Ankit Khanna, Advocate; Ms. Swapna Jha, Advocate; Ms. Sohini Dey, Advocate for the Enforcement Directorate; Mr. Ashok Kumar Chakraborti, Learned Additional Solicitor General; Mr. T.P. Acharyya, Advocate. For the Union of India (Judgment of the Supreme Court of India was delivered by T.S. Sivagnanam, Chief Justice)., These intra‑court appeals are directed against the order in WPA 802 of 2024 dated 17 January 2024. The appellant in MAT 169 of 2024 is the Enforcement Directorate, Kolkata Zonal Office‑I, the writ petitioner in WPA 802 of 2024. The appellant in MAT 191 of 2024 is the State of West Bengal through its Chief Secretary, Government of West Bengal and seven other police officials., The writ petition was filed by the Enforcement Directorate (hereinafter referred to as ED) for transfer of investigation of Case No. 9 of 2024, Case No. 8 of 2024 on the file of Nazat Police Station and Case No. 18 of 2024 on the file of Bongaon Police Station from the State Police to the Central Bureau of Investigation (hereinafter referred to as CBI), the ninth and second respondents in these appeals. The writ petition was disposed of by the impugned order constituting a Special Investigating Team consisting of officers of the CBI and the State Police. Aggrieved by such order, both CBI and the State of West Bengal have preferred these appeals., We have elaborately heard the Learned Additional Solicitor General Mr. S.V. Raju and the Deputy Solicitor General Mr. Dhiraj Trivedi appearing for the ED, the Learned Additional Solicitor General Mr. Ashok Chakraborty for CBI and the Learned Advocate General Mr. Kishore Dutta for the State of West Bengal., The facts of the case as brought out before us can be summarized as follows. ED was investigating a money‑laundering case involving a public distribution system scam in which a cabinet minister of the State of West Bengal was arrested. Money trail was found in respect of two political figures loyal to the ruling dispensation, namely Mr. Shahjahan S. K. and Mr. Sankar Adhya. On 5 January 2024 during the morning hours ED conducted a raid at the residence of Shahjahan for the purpose of search and seizure of relevant documents. The suspect did not open the door despite being contacted by phone and his phone was busy. From tower‑location analysis of the mobile phone, ED contended that Shahjahan was in his residence and subsequently his followers arrived in buses; about one thousand to three thousand people armed with sticks, bricks and stones attacked the raiding ED officials and the accompanying CRPF personnel. Three ED officials were seriously injured and were hospitalised., With regard to the incident, three FIRs were registered: FIR No. 7 of 2024, FIR No. 8 of 2024 and FIR No. 9 of 2024. FIR No. 7 of 2024 was based on a complaint given by one Didar Baksh Molla, stated to be a security guard of Shahjahan, addressed to the Inspector‑in‑charge, Nazat Police Station, dated 05‑01‑2024 and signed in Bengali. The complaint, written in English, was drafted by an Advocate of the Calcutta High Court having an office at No. 7C, K.S. Roy Road, Kolkata. On the basis of the complaint, FIR No. 7 of 2024 was registered at 10:30 A.M. on 05‑01‑2024 under various sections of the Indian Penal Code (IPC). FIR No. 8 of 2024 was registered in the same police station by the same officer as a suo moto FIR stating that about three thousand people had gathered and attacked the officials of ED. FIR No. 9 of 2024 was registered at 20:10 hours on 05‑01‑2024 based on a complaint lodged by ED to the Superintendent of Police, Basirhat Police District, alleging that Shahjahan and several unknown persons had committed various offences under the IPC including Section 307 IPC. The complaint was lodged by the Deputy Director of ED, Kolkata Zone‑I. Although the complaint mentioned several provisions of the IPC, Section 307 was not included; the Learned Advocate General stated that Section 307 IPC was added only on 17 January 2024., In the writ petition ED contended that the complaint specifically referred to the incident of 5 January 2024 and that the police ought to have registered an FIR under various provisions of the IPC including Section 307, but the FIR was registered omitting Section 307. ED argued that all the sections mentioned in the FIR except Section 353 are bailable offences and therefore the State Police are biased in conducting the investigation of the crime committed against ED officials who were seriously injured and whose official equipment was robbed while they were on duty under the provisions of the Prevention of Money‑Laundering Act. ED further contended that FIR No. 18 of 2024 of Bongaon Police Station was also registered without mentioning the relevant sections as brought out in the complaint. ED submitted that media recordings showed that neither the ED officials nor the CRPF personnel entered Shahjahan’s house and there was no visual evidence of any woman being touched by the officials; nevertheless the police registered FIR No. 7 of 2024 against the ED officials who were victims of the crime. ED also alleged that the State Police refused to provide copies of the FIRs and ignored the mandate that FIRs should be uploaded on the West Bengal Police website or any public domain within 24 hours of registration. A certified copy of the FIR was obtained only after the writ petition was filed. Consequently, ED claimed a genuine apprehension that the State machinery would conduct a biased investigation, destroy evidence and thwart the investigation, falsely implicating its officers for political reasons., The learned Single Bench, as noted above, constituted a Special Investigating Team (SIT) headed by an officer of the CBI of the rank of Superintendent of Police, to be nominated by the CBI, Mr. Jaspreet Singh, IPS, presently posted as the Superintendent of Police, Islampur Police District, to conduct the investigation. Both the ED and the State of West Bengal, as well as the police authorities, are aggrieved by such direction., In considering the correctness of the order and direction issued by the learned Single Bench, we must refer to the law on the subject, namely under what circumstances an investigation can be transferred to a Central Agency, divesting the powers of the State Police. The Supreme Court of India, in State of West Bengal and Others v. Committee for Protection of Democratic Rights, held that where there are strong reservations about the impartiality and fairness of the State Police investigation because of political influence, the investigation may be handed over to the CBI. The Court observed that even if the investigation were conducted fairly, it would still be viewed with suspicion when all the assailants belong to the ruling party, and therefore it was appropriate to transfer the investigation to the CBI., The Supreme Court of India further explained that under Entry 2 of List II of the Seventh Schedule and Entry 2A and Entry 80 of List I, an investigation by another agency is permissible subject to the consent of the State, and in exceptional situations the court may exercise the same power that the Union could exercise under the statute without violating the doctrine of separation of powers. The Court also held that the power of the High Court under Article 226 of the Constitution cannot be taken away, curtailed or diluted by Section 6 of the Special Police Act, and that exercise of judicial review by the High Court would not infringe the federal structure., The Supreme Court of India emphasized that while exercising its jurisdiction under Article 226, the High Courts have not only the power and jurisdiction but also an obligation to protect the fundamental rights guaranteed by Part III, especially Article 21, zealously and vigilantly. The Court cautioned that the extraordinary power to direct the CBI to investigate must be exercised sparingly, cautiously and only in exceptional circumstances where it is necessary to provide credibility, instil confidence in the investigation, or where the incident may have national or international ramifications., In Bimal Gurung v. Union of India, the Supreme Court noted that the power to transfer investigation to another agency must be exercised in rare and exceptional cases where the court finds it necessary to do justice, to instil public confidence, or where the investigation by the State Police lacks credibility. The Court, citing K.V. Rajendran v. Superintendent of Police, listed circumstances for such transfer: (i) involvement of high officials of State authorities; (ii) accusation against top officials of the investigating agency; or (iii) prima facie tainted or biased investigation., Applying the foregoing law to the present case, we must determine whether the facts fall within the parameters laid down by the Supreme Court of India and whether the ED was justified in seeking transfer of the cases to the CBI, and whether the State of West Bengal was justified in seeking to set aside the constitution of the SIT and retain investigative powers. The incident of 5 January 2024 was unprecedented. The learned Single Bench observed that it was astounding that the State Police had no information on the whereabouts of a prominent political leader such as Shahjahan and were unable to arrest him. The arrest took place only on 29 February 2024 after various suo moto orders. The Court clarified that the stay granted in those appeals was restricted to investigation by the State Police and not to the arrest itself. After the arrest, one case (Case No. 9 of 2024) was transferred to the CID of the State Police and notices were issued under Section 91 and Section 160 of the Criminal Procedure Code, despite the earlier stay restraining the State Police from proceeding with the investigation. This indicates that the State Police are over‑zealous and are attempting to delay the investigation., The Court noted inconsistencies between FIR No. 7 of 2024 and FIR No. 8 of 2024. FIR No. 7 was based on a complaint by the security guard of Shahjahan dated 5 January 2024, while FIR No. 8, a suo moto FIR, was registered by the same officer stating that more than three thousand people had gathered and attacked the ED officials. A criminal revision case (CRR No. 164 of 2024) was filed by the ED to quash FIR No. 7. The learned Single Bench stayed FIR No. 7 till 31 March 2024 and directed the State of West Bengal to file an affidavit in opposition by 18 January 2024, which has not been filed. The Court observed that the same officer could not have signed two FIRs on the same day based on different complaints, indicating a clear inconsistency and a prima facie finding adverse to the State Police., The Court posed the question whether a victim can become an accused and concluded that it cannot. Accordingly, the power to transfer cases must be exercised only in rare and exceptional circumstances where high officials of State authorities are involved, the accusation is against top officials of the investigating agency, or the investigation is prima facie tainted or biased. In the present appeals, an interim order dated 7 February 2024 stayed the order constituting the SIT and restrained the West Bengal State Police from proceeding with the investigation in the cases registered by them. Despite this, one case was transferred to the CID and notices were issued, further demonstrating bias., In conclusion, the case investigated by the ED involves highly politically powerful persons, including the accused Shahjahan, who was on the run for more than fifty days and was only apprehended on 29 February 2024. The circumstances surrounding FIR No. 7 of 2024, the alleged interpolations in the complaint, and the inconsistent versions of events in FIR No. 7 and FIR No. 8 demonstrate bias and a lack of credibility in the State Police investigation. The Supreme Court of India has held that the High Court has an obligation to protect fundamental rights and to ensure that investigations are conducted impartially. Given the political influence of the accused, the bias of the State Police, and the need to maintain public confidence, the investigation must be transferred to the Central Bureau of Investigation.
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He is an elected representative of the public, holding the highest office in a Zilla Parishad. He was fielded as the candidate at the elections held for the said post by the political party which is the ruling dispensation. Thus, it has become imperative and absolutely necessary for doing complete justice and enforcing the fundamental rights of the public in general and the public of the locality that the cases be transferred to the Central Bureau of Investigation for investigation and to proceed further., In the result, Miscellaneous Application for Transfer No. 169 of 2024 and Miscellaneous Application for Transfer No. 191 of 2024 are allowed and the order passed by the learned Single Bench of the High Court constituting the Special Investigating Team is set aside. The writ petition filed by the Enforcement Directorate in Writ Petition Application 802 of 2024 is allowed and cases in First Information Report No. 8 of 2024 and First Information Report No. 9 of 2024 on file of the Nazat Police Station and First Information Report 18 of 2024 on the file of the Bongaon Police Station shall forthwith be transferred to the Central Bureau of Investigation. The custody of the accused S.K. Shahjahan shall also forthwith be handed over to the Central Bureau of Investigation. This direction shall be implemented by 4:30 P.M. today (05.03.2024). No costs. Connected applications stand disposed of.
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Petition(s) for Special Leave to Appeal (Criminal) No(s). 1959-1963/2024 (Arising out of impugned final judgment and order dated 28-11-2023 in Writ Petition No. 33459/2023, Writ Petition No. 33460/2023, Writ Petition No. 33461/2023, Writ Petition No. 33462/2023 and Writ Petition No. 33467/2023 passed by the High Court of Judicature at Madras) Date: 27-02-2024. These petitions were called on for hearing today. For the petitioner: Mr. Suryaprakash V. Raju, Additional Solicitor General; Mr. Mukesh Kumar Maroria, Advocate on Record; Mr. Samrat Goswami, Advocate; Mr. Annam Venkatesh, Advocate; Mr. Zoheb Hussain, Advocate. For the respondents: Mr. Kapil Sibal, Senior Advocate; Mr. Mukul Rohtagi, Senior Advocate; Mr. Ranjith Kumar, Senior Advocate; Mr. D. Kumanan, Advocate on Record; Mrs. Deepa S, Advocate on Record; Mr. Sheikh F. Kalia, Advocate; Mr. Veshal Tyagi, Advocate; Mr. Mukul Rohatgi, Senior Advocate; Mr. Amit Anand Tiwari, Senior Additional Advocate General; Mr. Sabarish Subramanian, Advocate on Record; Mr. C. Kranthi Kumar, Advocate; Mr. Vishnu Unnikrishnan, Advocate; Mr. Danish Saifi, Advocate; Mr. Naman Dwivedi, Advocate; Mr. Aman Prasad, Advocate., The Madras High Court heard learned Additional Solicitor General Mr. S. V. Raju for the petitioner and the learned Senior Advocates Mr. Kapil Sibal and Mr. Mukul Rohtagi for the respondents appearing on caveat., The instant Special Leave Petitions have been filed by the petitioner Directorate of Enforcement challenging the common interim order dated 28-11-2023 passed by the Madras High Court in Writ Petition Nos. 33459 to 33462 and 33467 of 2023, by which the High Court granted an interim stay of the operation of the summons issued by the Directorate of Enforcement to the District Collectors of Vellore District, Trichy District, Karur District, Thanjavur District and Ariyalur District, requiring their appearance to give evidence and produce records as indicated in the annexures annexed to the summons, in connection with the investigation and proceedings under the Prevention of Money Laundering Act, 2002., A very unusual set of Writ Petitions have been filed by the State of Tamil Nadu together with the Additional Chief Secretary and District Collectors against the Directorate of Enforcement under Article 226 of the Constitution of India before the Madras High Court seeking relief that would indirectly stall or delay the inquiry and investigation being made by the Directorate of Enforcement based on four FIRs registered for various offences, some of which are scheduled offences under the Prevention of Money Laundering Act. It is noted that Article 256 of the Constitution obliges the State Government to exercise its executive power to ensure compliance with laws made by Parliament., The impugned summons have been issued by the Directorate of Enforcement in exercise of the powers conferred upon it under Section 50(2) of the Prevention of Money Laundering Act, which reads: ‘The Director, Additional Director, Joint Director, Deputy Director or Assistant Director shall have power to summon any person whose attendance he considers necessary whether to give evidence or to produce any records during the course of any investigation or proceeding under this Act.’, Section 50(3) of the Act, which is relevant, reads: ‘All the persons so summoned shall be bound to attend in person or through authorised agents, as such officer may direct, and shall be bound to state the truth upon any subject respecting which they are examined or make statements, and produce such documents as may be required.’, From the plain reading of the provisions, it is clear that the officers mentioned have the power to summon any person whose attendance they consider necessary, either to give evidence or to produce any record during the course of investigation or proceeding under the Act. The Directorate of Enforcement is conducting the inquiry and investigation under the Act in connection with four FIRs, namely: (i) FIR No. 08/2018 dated 23-08-2018 registered by the Vigilance and Anti-Corruption (V&AC) office, Thanjavur, under Sections 120B, 421, 409, 109 of the Indian Penal Code and Sections 13(1)(c), 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988; (ii) FIR No. 03/2020 dated 20-10-2020 registered by V&AC, Dindigul, under Sections 41, 109 of the Indian Penal Code and Section 7(a) of the Prevention of Corruption Act; (iii) FIR No. 02/2022 dated 05-02-2022 registered by V&AC, Theni, under Sections 7, 13(c), 13(1)(d), 13(1)(a) read with 13(2) and 12 of the Prevention of Corruption Act, and Sections 120B, 167, 379, 409, 465, 468, 471, 477 read with 109 of the Indian Penal Code; and (iv) FIR No. 68/2023 dated 25-04-2023 registered by Murappanadu Police Station, Thoothukudi District, under Sections 449, 332, 302 and 506(2) of the Indian Penal Code. Since some offences in these FIRs are scheduled offences under the Prevention of Money Laundering Act, the investigation proceeds under that Act and the District Collectors or persons to whom the summons are issued are obliged to comply., The Writ Petitions filed by the State Government challenging the summons issued to the District Collectors appear to be fundamentally misconceived, and the impugned order passed by the Madras High Court is also based on a misapprehension of law; consequently, the operation of the impugned order is stayed., Accordingly, the operation and execution of the impugned order is stayed pending the present Special Leave Petitions. The District Collectors shall appear and respond to the summons issued by the Directorate of Enforcement on a date to be indicated by the Directorate., The matter is listed after four weeks. In the meantime, pleadings are to be completed.
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The present Special Leave Petition is being filed under Article 136 of the Constitution of India, inter alia, challenging the final Judgment and Order dated 9 November 2020 passed by the Division Bench of the Bombay High Court in Criminal Application Stamp No. 4278 of 2020 in Criminal Writ Petition Stamp No. 4132 of 2020 whereby the Bombay High Court rejected the prayer for ad‑interim relief of the Petitioner for bail in First Information Report No. 59 of 2018, dated 5 May 2018, registered at Alibaug Police Station, Raigad, under Sections 306 and 34 of the Indian Penal Code, 1860. The present petition raises a substantial question of law of general public importance which arises for consideration by this Honourable Court, inter alia as follows:, Whether the Bombay High Court by its order dated 9 November 2020 erred in law by refusing bail to the Petitioner in connection with First Information Report No. 59 of 2018, especially when the Petitioner’s arrest was illegal, mala‑fide and politically motivated as evident from the multifarious proceedings initiated against him, his news channels, Republic TV and R. Bharat at the behest of the political dispensation in the State of Maharashtra and the respondents numbered 1 and 3? Whether the Bombay High Court erred in law by refusing bail to the Petitioner by its order dated 9 November 2020, especially when the Learned Chief Judicial Magistrate, Raigad, Alibaug in its remand order dated 4 November 2020 had observed that the arrest of the Petitioner and other accused in First Information Report No. 59 of 2018 was illegal and there were no grounds made out for granting police custody of the Petitioner and other accused? Whether the Bombay High Court erred in law by refusing bail to the Petitioner by its order dated 9 November 2020, especially when investigation into First Information Report No. 59 of 2018 had been closed by a summary report filed by the police and accepted by the Learned Chief Judicial Magistrate, Raigad, Alibaug by an order dated 16 April 2019? Whether the Petitioner could have been arrested for the offences alleged in First Information Report No. 59 of 2018 without any judicial order setting aside the Learned Chief Judicial Magistrate, Raigad, Alibaug’s order dated 16 April 2019 by which the closure report was accepted in the matter or in the absence of any order directing reinvestigation or further investigation in the matter? Whether the Petitioner could have been arrested in connection with First Information Report No. 59 of 2018 without any prior summons or notice in the matter from the Mumbai police under the relevant provisions of law, especially when investigation into First Information Report No. 59 of 2018 was closed by the summary report accepted by the Learned Chief Judicial Magistrate? Whether the Bombay High Court in its order dated 9 November 2020 erred in law by omitting to consider the assembly discussions on the floor of the Maharashtra Legislative Assembly on 8 September 2020 wherein certain cabinet ministers had called for the arrest of the Petitioner in connection with First Information Report No. 59 of 2018, demonstrating that the arrest of the Petitioner was mala‑fide and politically motivated? Whether the Bombay High Court in its order dated 9 November 2020 failed to consider the settled law and judicial precedents under Section 306 of the Indian Penal Code in not appreciating that the Petitioner’s detention is unjustified and the transaction was purely commercial between two corporate entities and there is nothing on record to suggest that the Petitioner had provoked or incited or encouraged the deceased (Mr. Anvay Naik) to commit suicide, nor is there anything to show that the Petitioner had committed any act which was proximate to the demise of the deceased? Whether the balance of convenience is in favour of the Petitioner being released on bail as his arrest and continued detention is illegal and there is no judicial order setting aside the Learned Chief Judicial Magistrate, Raigad, Alibaug’s order dated 16 April 2019 by which the closure report was accepted or in the absence of an order directing reinvestigation or further investigation in the matter? Whether an investigation which is finally closed can be reopened by the State by an executive order, absent any judicial order? Whether the Bombay High Court could have finally decided the question that investigation can be reopened even after closure of a matter without a judicial order?, The Petitioner states that no other petition seeking leave to appeal has been filed by him against the interim Judgment and Order dated 9 November 2020 passed by the Division Bench of the Bombay High Court in Criminal Application Stamp No. 4278 of 2020 in Criminal Writ Petition Stamp No. 4132 of 2020. The annexures, being Annexure P/1 to Annexure P/10 produced along with the present Special Leave Petition, are true copies of the pleadings and documents which formed part of the records of the instant case., Leave to appeal is sought on the following grounds:, Because the Bombay High Court has finally decided the writ petition against the Petitioner even though it is titled as an interim order. On various aspects, the Bombay High Court has rendered a final finding even though the only prayer and arguments advanced were on the question of bail., Because the Bombay High Court erred in concluding that power under Article 226 of the Constitution should not be exercised when there is an alternative efficacious remedy., Because the Bombay High Court erred in holding that in the case of State of Telangana it was not held that power under Article 226 of the Constitution cannot be exercised to grant bail to a petitioner in a case where the prayer is for quashing., Because the Bombay High Court erroneously held, based on a submission by the State, that the writ petition was not maintainable because the Petitioner was in judicial custody at the time of filing the habeas corpus petition. In this regard, it is submitted that the prayer included a prayer for quashing the proceeding which is clearly maintainable., Because the Bombay High Court erred in relegating the Petitioner to a remedy under Section 439 of the Criminal Procedure Code when the case involves personal liberty and after giving final findings in the writ petition itself., Because the Bombay High Court held that even at the interim stage final findings have been returned on the question of the summary report and that even where a case is closed the power of investigation under Section 173(8) of the Criminal Procedure Code remains despite the order not being set aside by a judicial forum., Because the Bombay High Court, having concluded that an investigation under Section 173(8) of the Criminal Procedure Code is possible even after the acceptance of the closure report, has therefore virtually concluded that the arrest of the Petitioner is legal., Because the Bombay High Court relied on a noting by the magistrate that she has \seen and found\ the report of the Crime Investigation Branch, Alibag. This endorsement does not amount to setting aside the earlier order dated 16 April 2019 and, in any case, the learned magistrate could not have reviewed the order because of Section 362 of the Criminal Procedure Code., Because the Bombay High Court did not even advert to judgments such as Vinay Tyagi v. Irshad Alia, (2013) 5 Supreme Court Cases 762 (paras 40.6 and 49) which suggest that once a closure report is accepted, the curtains come down on the case. Therefore, it is an error to permit the police to reopen the investigation under Section 173(8) of the Criminal Procedure Code without a judicial order for reinvestigation., Because the Bombay High Court erred in not dealing with the order of the Chief Judicial Magistrate, Raigad, Alibaug which was placed in great detail at the time of final arguments., Because the entire investigation and consequent arrest of the Petitioner are completely illegal, and the illegality continues to perpetrate every moment constituting gross violations of Article 21 of the Constitution of India. The Bombay High Court by way of the impugned order has provided a stamp of approval to this illegal investigation., Because, in addition to the grossly illegal and invalid investigation and consequent arrest, the police have proceeded to pray for the Petitioner’s police custody, adding insult to injury. This ground is only available now before this Honourable Court relying on the doctrine of alternative remedy not being an impediment where there are such violations of fundamental rights under Article 21 of the Constitution of India. The Petitioner has not prayed for bail on the ground of violation of Article 21 and cannot pray for bail before the Sessions Court on this ground. This illegality must stop now., Because the reasoning of the impugned judgment is from paragraph 31 at page 19 onwards. However, till paragraph 37 at page 33, the Honourable Court has dealt with the habeas corpus law when it was categorically made clear that we were not pressing that prayer and were interested only in the prayers for quashing of the case and the investigation and, as a sequitur thereto, for the grant of interim relief like bail., Because despite the judgments of Girish Suneja, Asian Resurfacing and Kartar Singh which specifically authorize the High Court to grant bail in writ jurisdiction, the High Court relies on the judgment of State of Telangana v. Habib Abdulla Jeelani, (2017) 2 Supreme Court Cases 779; particularly paragraphs 13, 14 and 20 to hold that proceedings under Article 226 of the Constitution of India are not to be converted into proceedings for anticipatory bail under Section 438 of the Criminal Procedure Code and that the same principle will apply to Section 439 of the Criminal Procedure Code (paras 44 and 45 of the order at pages 37 and 38)., Because the Honourable High Court overlooked the fact that this view was completely wrong and ignored a binding precedent of a coordinate bench in Raju Ram Purohit v. Union of India, 2018 Supreme Court Online Bombay 2262 (paras 3 to 7 and particularly paragraph 4)., Because in UPSC v. Papaiah, (1997) 7 Supreme Court Cases 614, this Honourable Court categorically dealt with a case where the first informant was not given notice or heard by the magistrate while accepting a summary report and clearly took a view that the informant could approach the magistrate under Section 173(8) of the Criminal Procedure Code and that the passing of further judicial orders was contemplated in a situation like this., Because the Bombay High Court by its order dated 9 November 2020 erred in law by refusing interim bail to the Petitioner in connection with First Information Report No. 59 of 2018, especially when the Petitioner’s arrest was illegal, mala‑fide and politically motivated as evident from the multifarious proceedings initiated against him, his news channels, Republic TV and R. Bharat at the behest of the political dispensation in the State of Maharashtra and the respondents numbered 1 and 3., Because there is an error apparent on the face of the record in as much as the impugned order dated 9 November 2020 records that there is no dispute that as on the date of filing of the petition there was already an order of the jurisdictional magistrate for remand of the petitioner in custody, and proceeds to deal with the matter based on this erroneous understanding. The Bombay High Court has failed to appreciate that the arrest of the Petitioner on the morning of 4 November at around 7:45 a.m. in connection with First Information Report No. 59 of 2018 was illegal, mala‑fide, politically motivated, malicious and without due process of law., Because the Bombay High Court in the impugned order dated 9 November 2020 has completely erred in law and facts in as much as it failed to appreciate that at the time of filing the writ petition before the Honourable High Court (2.30 p.m. on 4 November 2020), the Petitioner was not even produced before the Chief Judicial Magistrate, Raigad and therefore the question of the existence of an order of the jurisdictional magistrate for remand of the Petitioner in custody does not and cannot arise. In fact, the petition was filed on 4 November 2020 at around 2.30 p.m. and was mentioned for an urgent listing by the Petitioner’s advocate at 4.30 p.m. This is absolutely contrary to the remand order dated 7 November 2020 passed by the Chief Judicial Magistrate, Alibaug, Raigad which clearly records that the Petitioner was produced before the said court at 5.15 p.m., Because the Bombay High Court in its impugned order dated 9 November 2020 erred in law by refusing interim bail to the Petitioner, especially when the Chief Judicial Magistrate, Raigad, Alibaug in its remand order dated 4 November 2020 observed that the arrest of the Petitioner and other accused in First Information Report No. 59 of 2018 was illegal and there were no grounds made out for granting police custody of the Petitioner and other accused. Relevant portions of the remand order are extracted below: \After taking note of the reasons of objections to police custody presented by accused 1 to 3, it seems that the arrest of the accused itself is illegal. After examining the documents closely, the incident that occurred, the death of the two people, the relation between the two people, also the relation with the accused should be established before seeking police custody. If the sequence of the incident is constant only then can the accused be linked to the incident and the police custody can be accepted. ... There is no satisfactory answer to this from the prosecution. The reason behind Kumudini Naik’s death, the connection with Anvay Naik’s death and its link with the three accused – this chain has not been completely established. ... There has been no strong reason or evidence from the prosecution over this and that’s why police custody can’t be justified. ... As per the existing laws, for the police custody, it is necessary to get strong evidence and important material must be recovered from the accused. ... No evidence has been presented to justify demand for police custody. ... Nothing has been recovered from the accused. ... Prima facie, the background/basis of the crime cannot be established. Similarly, prima facie, the link between the incident and its connection to the accused cannot be established. On these basis, when there is no evidence in a case a summary report is accepted. ...\, Because the Bombay High Court failed to appreciate that investigation into First Information Report No. 59 of 2018 had already been closed as the Learned Chief Judicial Magistrate, Raigad, Alibaug had accepted the closure summary report by an order dated 16 April 2019. Absent any judicial order directing reinvestigation in the matter or setting aside the order dated 16 April 2019 by which the summary report was accepted, the reinvestigation of the matter by the Mumbai police and the arrest of the Petitioner were mala‑fide, politically motivated and bad in law. The Respondent No. 3, at the behest of the political dispensation in Maharashtra and in particular Mr. Anil Deshmukh, the incumbent Home Minister, acted on the basis of his orders for reinvestigating the First Information Report No. 59 of 2018. The Petitioner humbly submits that the Home Minister or any member of the Executive is not empowered in law to order reinvestigation of a case which has been closed by a judicial order; only a superior court has the power to pass such a direction., Because the Bombay High Court has also completely erred in holding that: \From the above provisions, it would thus be seen that exercise of supervisory powers of superintendence of the police force throughout the State of Maharashtra vests and is exercisable by the State Government and any control, direction exercisable by any officer or any member of the police force shall be subject to such superintendence. The State Government, therefore, in exercise of its powers directed the local Crime Investigation Branch, Raigad, Alibag to conduct further investigation of the said offence. Though the learned Senior Advocate for the petitioner has pointed out that the State Government has issued directions for reinvestigating the matter, which, according to him, is not permissible, however, we find that when report was submitted before the jurisdictional magistrate, the concerned Investigating Officer has correctly understood it to mean a further investigation and accordingly made the submission. The power of superintendence has been explained by the Honourable Supreme Court in the case of State of Bihar v. J.A.C. Saldanha. Paragraph 17 of the said case, which is relevant, reads thus: Thus, there is no manner of doubt in our minds that the State Government can always direct a further investigation to the concerned police officers, as done in the present case.\, Because the Bombay High Court failed to appreciate that on the face of it there could not have been a case made out under Section 306 of the Indian Penal Code in as much as the underlying contract was between two corporate entities and the accused was not even a contractual party to it. Such a fact should have been borne in mind while considering the grant of interim relief as sought by the Honourable Court., Because the Bombay High Court also misread the judgment of this Honourable Court in Jagisha Arora v. State of Uttar Pradesh (Writ Petition (Criminal) No. 164 of 2019) by restricting its application to only the relevant provisions of the Indian Penal Code discussed in the said case as opposed to applying its principles as are equally applicable in the present case., Because the Bombay High Court ignored the apparent mala‑fide of the state machinery in re‑initiating an illegal investigation for the sole purpose of making an illegal arrest of the Petitioner., Because the Bombay High Court ought to have exercised its jurisdiction to grant bail in the exercise of its powers under Article 226 of the Constitution of India as the Petitioner’s arrest was illegal, politically motivated and bad in law and the Petitioner ought not to have been relegated to pursue his remedy under Section 439 of the Criminal Procedure Code. The Bombay High Court’s power to grant bail in extraordinary circumstances is well recognised in law as held by this Honourable Court in Girish Kumar Surneja v. Central Bureau of Investigation (2017) 14 Supreme Court Cases 809 and Kartar Singh v. State of Punjab (1994) 3 Supreme Court Cases 569., Because the Learned Chief Judicial Magistrate, Raigad, while remanding the Petitioner to judicial custody on 4 November 2020 observed that the arrest of the Petitioner was illegal and police custody in the matter was not warranted., Because the Bombay High Court has failed to recognise the political vendetta with which Criminal Report No. 59 of 2018 has been reopened and the arrest effected of the Petitioner, which is completely contrary to the process established by law., Because the Bombay High Court has failed to recognise the decisive manner in which the closed case Criminal Report No. 59 of 2018 has been reopened by the Mumbai police for the sole purpose of misusing power, concocting facts and forcefully arresting the Petitioner in a prima facie act of revenge and vengeance for his news coverage which questioned those in power in the State of Maharashtra., Because the Petitioner is reputed a member of the society and there is absolutely no chance of his absconding from justice had bail as prayed been granted. Further, the Petitioner had cooperated with the police during the investigation stage completely and would have done the same had the police given a notice to the Petitioner regarding reopening of the case. Therefore, there is absolutely no need for custodial interrogation of the Petitioner., Because the Bombay High Court by its order dated 9 November 2020 failed to grant bail to the Petitioner in exercise of its extraordinary powers under Article 226 of the Constitution of India as held by this Honourable Court in Girish Kumar Surneja v. Central Bureau of Investigation (2017) 14 Supreme Court Cases 809 and Kartar Singh v. State of Punjab (1994) 3 Supreme Court Cases 569., Because the Petitioner could not have been arrested for the offences alleged in First Information Report No. 59 of 2018 without any judicial order setting aside the Learned Chief Judicial Magistrate, Raigad, Alibaug’s order dated 16 April 2019 by which the closure report was accepted in the matter or in the absence of any order directing reinvestigation or further investigation in the matter., Because the Petitioner could not have been arrested in connection with First Information Report No. 59 of 2018 without any prior summons or notice in the matter from the Mumbai police under the relevant provisions of law, especially when the investigation into First Information Report No. 59 of 2018 was closed by the summary report accepted by the Learned Chief Judicial Magistrate., Because the Bombay High Court in its order dated 9 November 2020 erred in law by omitting to consider the assembly discussions on the floor of the Maharashtra Legislative Assembly on 8 September 2020 wherein certain cabinet ministers had called for the arrest of the Petitioner in connection with First Information Report No. 59 of 2018, demonstrating that the arrest of the Petitioner was mala‑fide and politically motivated., Because the Bombay High Court in its order dated 9 November 2020 failed to appreciate that the Petitioner’s detention in this matter is unjustified as there is nothing on record to suggest that the Petitioner had provoked or incited or encouraged the deceased (Mr. Anvay Naik) to commit suicide, nor is there anything to show that the Petitioner had committed any act which was proximate to the demise of the deceased., Because the Bombay High Court failed to appreciate that the Petitioner’s arrest and continued detention in connection with First Information Report No. 59 of 2018 is illegal and dehors the law as a closure summary report had been filed in the matter and accepted by the Learned Chief Judicial Magistrate, Raigad, Alibaug by an order dated 16 April 2019., Because the Bombay High Court failed to appreciate that the Petitioner could not have been deprived of his liberty for the offences alleged in First Information Report No. 59 of 2018 without any judicial order setting aside the Learned Chief Judicial Magistrate, Raigad, Alibaug’s order dated 16 April 2019 by which the closure report was accepted in the matter or in the absence of any judicial order directing reinvestigation or further investigation in the matter., Because Section 34 of the Indian Penal Code has been wrongly applied in First Information Report No. 59 of 2018 as there is nothing on record to suggest that the Petitioner knew the co‑accused or had even interacted with them earlier, let alone having a common intention to abet the suicide of the deceased, Mr. Anvay Naik., Because the Bombay High Court omitted to consider that the closure report filed by the police before the Learned Chief Judicial Magistrate, Raigad, Alibaug, clearly mentions that the accused individuals (including the Petitioner) are businessmen in different areas, different places and they do not have any relation between them. Hence, the registration of the First Information Report under Section 34 of the Indian Penal Code was and is bad in law., Because the closure report filed by the police clearly recorded that it would be impossible to convince that the accused 1 to 3 (including the Petitioner) would have aided and abetted the commission of suicide of the deceased. Once the Mumbai police had concluded that there was no evidence to suggest that the Petitioner had abetted the suicide of the deceased and the Mumbai police having failed to produce any news or compelling evidence to re‑open the investigation, the Petitioner ought to have been granted bail by the Bombay High Court., Because the Bombay High Court by its orders dated 9 November 2020 and 7 November 2020 failed to take notice of the well‑established principles of law that the High Court can grant bail in the exercise of its extraordinary powers under Article 226 of the Constitution of India as held by this Honourable Court in Girish Kumar Surneja v. Central Bureau of Investigation (2017) 14 Supreme Court Cases 809 and Kartar Singh v. State of Punjab (1994) 3 Supreme Court Cases 569., Because the Bombay High Court ought to have exercised its extraordinary powers under Article 226 of the Constitution of India, 1950 by granting ad‑interim bail to the Petitioner as the present case is a glaring case of deprivation of liberty of the Petitioner and the excessiveness of police action taken in the matter. The Honourable Court erred in law by omitting to consider the judgment in Jagisha Arora v. State of Uttar Pradesh (Writ Petition (Criminal) No. 164 of 2019) wherein the Petitioner was directed to be released on bail under the writ jurisdiction of this Honourable Court., Because a summary closure report was filed by the police before the magistrate which was accepted on 16 April 2019. Admittedly this order is not challenged in any superior court nor has any party moved the Learned Magistrate for setting aside the order or for an alteration of the said order by way of a protest petition or an application under Section 156(3) of the Criminal Procedure Code nor even by means of a complaint under Section 200 of the Criminal Procedure Code., Because the present case is totally and completely different from a case in which a charge‑sheet is filed (and hence the case is alive and not dead). In such cases where a charge‑sheet is filed, the police have a statutory right to further investigate by virtue of Section 173(8) of the Criminal Procedure Code, with or without the permission of the magistrate. That situation is totally different, and the Bombay High Court was not dealing with such a case. It is settled law that as a legal practice, permission of the magistrate is required under Section 173(8) of the Criminal Procedure Code before the police further investigate a matter., Because the above position has been upheld by this Honourable Court in Bikash Rajan Raut v. State, (2019) 5 Supreme Court Cases 542 (para 6.3 and para 40.6) and Pathu Ranjan v. State of Tamil Nadu, (2019) 4 Supreme Court Cases 771 (paras 22 and 27) and Vinay Tyagi v. Irshad Alia, (2013) 5 Supreme Court Cases 762 (paras 40.6 and 49).
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BECAUSE the Hon'ble Bombay High Court failed to appreciate that while an A‑Summary report which is accepted by the Magistrate by a judicial order is in force and not altered or set aside, the police cannot on their own carry out further investigation in the same case under any provision of law, much less under Section 173(8) of the Code of Criminal Procedure., BECAUSE the Hon'ble Bombay High Court failed to appreciate that the investigation carried out by the police after 15 October 2020 is thus completely illegal and all steps of investigation carried out on the basis of such an investigation, including arrest, are completely illegal and every second detention pursuant to the arrest made in such a matter is completely violative of the fundamental right of the petitioner enshrined under Article 21 of the Constitution of India, 1950., BECAUSE the Hon'ble Bombay High Court failed to appreciate that once a negative report is submitted by the police, the learned magistrate may (1) accept the report and close the case; (2) disagree with the report and take cognizance; or (3) issue directions for further investigation under Section 156(3) of the Code of Criminal Procedure. This provision is the source of the power of the magistrate as a general rule of law (see Bhagwant Singh v. Commissioner of Police, (1985) 2 SCC 537 para 4; Gangadhar Janardhan Mhatre v. State of Maharashtra, (2004) 7 SCC 768 para 9; Vishnu Kumar Tiwari v. State of UP, (2019) 8 SCC 27 para 21; Bikash Ranjan Raut v. State, (2019) 5 SCC 542; Vinubhai Haribhai Malaviya v. State, (2019) SCC Online 1346 para 34)., BECAUSE the Hon'ble Bombay High Court failed to appreciate that even if the order of closure has been passed without hearing Respondent No. 5 (informant in FIR No. 59 of 2018), objections raised by Respondent No. 5 constitute a protest petition and a further order of a competent court diluting the order of closure is required to be passed only by a competent court after the informant approaches it; it cannot be done suo moto by the police (see UPSC v. Papaiah, (1997) 7 SCC 614; Vinubhai Haribhai Malaviya v. State, (2019) SCC Online 1346 para 34; Hemant Dashmaniya v. CBI, (2001) 7 SCC 536 para XX)., BECAUSE the Hon'ble Bombay High Court failed to appreciate that even in respect of a case where a positive report or charge sheet is filed and Section 173(8) of the Code of Criminal Procedure applies, by virtue of paragraph 49 of Vinubhai Malaviya (supra), it is mandatory for the police to obtain the magistrate's permission to exercise the power under Section 173(8)., BECAUSE the Hon'ble Bombay High Court failed to appreciate that the impugned actions of the police in the present case, wherein the police, a limb of the executive, set aside or alter an order of the magistrate, are completely illegal and beyond the scope of the powers of the police., BECAUSE the Hon'ble Bombay High Court failed to notice that in the present case the order of the Learned Chief Judicial Magistrate, Raigad, Alibaug, accepting the closure report was deliberately and illegally ignored by the police., BECAUSE the Hon'ble Bombay High Court failed to appreciate that unless the A‑Summary report is revived by a judicial order of a court of competent jurisdiction, it continues to be dead and cannot be resurrected or revived by the police suo moto without recourse to a court of law by the informant or victim, as was illegally and wrongfully done in the present case., BECAUSE the Hon'ble Bombay High Court failed to appreciate that, in consonance with the principle of law that except the High Court and the Supreme Court of India, the subordinate criminal courts and, much less, the police have no inherent jurisdiction to alter the closure of a judicially accepted A‑Summary closure report., BECAUSE the Hon'ble Bombay High Court failed to appreciate that there is no provision by which the police could suo moto carry out further investigation when a case is closed and an order is passed accepting the A‑Summary report., BECAUSE the Hon'ble Bombay High Court failed to appreciate that the authority of the High Court to order a stay of investigation is unquestionable and, in such cases, the court ought not overlook the most important factor, which is the administration of justice., BECAUSE the Hon'ble Bombay High Court failed to appreciate that the power to grant a stay of investigation can be exercised in extraordinary cases and the court must exercise the power if there is a case of abuse of the process of law or to promote the ends of justice., BECAUSE the Hon'ble Bombay High Court failed to appreciate that, where the investigation is completely illegal and the illegality is pointed out at the threshold as has been done in the present case, and where such investigation results in an arrest contrary to the procedure established by law and amounts to deprivation of personal liberty, such an illegal and wrongful investigation ought to be stayed forthwith (see Asian Resurfacing v. CBI, (2018) 16 SCC 299 para 35; Imtiyaz Ahmed v. State of UP, (2012) 2 SCC 688 para 55)., BECAUSE the Hon'ble High Court failed to appreciate that the plenary powers of the Hon'ble High Court under Article 226 of the Constitution of India, 1950 and the inherent powers of this Hon'ble Court under Section 482 of the Code of Criminal Procedure clearly authorize and empower the Hon'ble High Court to grant interim relief by way of bail, pending the hearing and final disposal of the writ petition, if it finds substance in the same, or otherwise to adjourn or admit the matter without interim relief., BECAUSE the Hon'ble High Court failed to appreciate that, in the present case, proceeding would result in grave prejudice to the petitioner and would constitute the highest form of travesty of justice., BECAUSE the Hon'ble Bombay High Court failed to appreciate that this Hon'ble Court relied on a judgment under the Terrorist and Disruptive Activities Act, 1987, where a constitutional bench held that, notwithstanding Section 19 of that Act barred any approach to the High Court from an order of the designated court, the jurisdiction of the High Courts to grant bail under Article 226 of the Constitution remained intact; paragraphs 359 and 368 of Kartar Singh v. State of Punjab, (1994) 3 SCC 569 are quoted with approval (see Girish Kumar Saneja v. CBI, (2017) 14 SCC 809 para 40; Asian Resurfacing v. CBI, (2018) 16 SCC 299 para 64)., BECAUSE the petitioner's arrest and illegal detention violate his right to life and personal liberty guaranteed under Article 21 of the Constitution of India, 1950 and his freedoms of speech and expression (the petitioner being the Editor-in-Chief of Republic TV and Republic TV Bharat) and his right to practice his profession guaranteed under Article 19(1)(a) and Article 19(1)(g) of the Constitution of India, 1950., BECAUSE the petitioner's arrest is politically motivated and malicious, as Respondents Nos. 1 to 3 harbour malice and ill‑will against the petitioner; multifarious proceedings have been initiated against the petitioner, his news channel Republic TV, Republic Bharat and their employees at the behest of the political dispensation in Maharashtra and the Maharashtra police., BECAUSE certain cabinet ministers in Maharashtra called for the petitioner's arrest in connection with FIR No. 59 of 2018 on the floor of the Maharashtra Legislative Assembly, as evident from the discussions on 8 September 2020 (part of the show‑cause notice issued to the petitioner in the breach of privilege proceedings), showing the desperation, vendetta and personal animosity of the Maharashtra government against the petitioner., BECAUSE the Hon'ble Bombay High Court failed to appreciate that the petitioner had never met Mr. Anvay Naik, who allegedly committed suicide in connection with certain alleged dues between ARG Outlier Media Private Limited (of which the petitioner is the managing director) and Concorde Designs Private Limited (Mr. Naik's company)., BECAUSE the Hon'ble Bombay High Court failed to appreciate that there is nothing on record to suggest that the petitioner aided or abetted the commission of Mr. Anvay Naik's suicide., BECAUSE the Hon'ble Bombay High Court failed to consider the well‑established principles of law in the context of Section 306 of the Indian Penal Code, 1860, holding that there must be a clear mens rea and a direct or active act by the accused that leads the deceased to commit suicide; none of these ingredients are present in this case (see M. Mohan v. State, (2011) 3 SCC 626; S.S. Cheena v. Bijay Kumar Mahajan and Anr., (2010) 12 SCC 190; Amlendu Pal v. State of West Bengal, (2010) 1 SCC 707; Gurcharan Singh v. State of Punjab, Criminal Appeal No. 40 of 2011; Rajesh v. State of Haryana, (2019) SCC Online SC 44)., BECAUSE the Hon'ble High Court failed to appreciate that the petitioner is a reputed journalist of international repute and impeccable integrity, a respected member of society with absolutely no chance of absconding from justice; the petitioner has fully cooperated with the police, and therefore there is absolutely no need for continued detention. The petitioner may be allowed to urge, alter or amend any ground at the time of hearing of the present petition. It is respectfully submitted that the petitioner has an excellent prima facie case, that the balance of convenience is in his favour, and that he would suffer irreparable harm if the impugned order is not stayed during the pendency of the petition. Accordingly, the petitioner prays that this Hon'ble Court may graciously be pleased to (A) grant special leave to appeal under Article 136 of the Constitution of India against the interim judgment and order dated 9 November 2020 passed by the Division Bench of the Bombay High Court in Criminal Application Stamp No. 4278 of 2020 in Criminal Writ Petition Stamp No. 4132 of 2020; and/or (B) pass such order(s) as this Hon'ble Court may deem fit and necessary, including an ex‑parte stay of the interim judgment and order dated 9 November 2020.
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The technological age has produced digital platforms that differ from traditional railway platforms where trains are regulated on arrival and departure. These digital platforms can be imminently uncontrollable at times and carry their own challenges. One form of digital platforms are the intermediaries that claim to provide a platform for exchange of ideas without any contribution of their own. They assert that they are not responsible for all that transpires on their platform; however, on complaints being made, they remove offensive content based on internal guidelines. The power and potentiality of these intermediaries is vast, running across borders. They are multinational corporations with large wealth and influence at their command. By the very reason of the platform they provide, their influence extends over populations across borders. Facebook is one such corporation. A testament to the wide‑ranging services which Facebook offers is the fact that it had about 2.85 billion monthly active users as of March 2021, which is over one‑third of the total population of the planet. In the national context, Facebook is the most popular social media platform in India with about 270 million registered users. Such vast powers must necessarily come with responsibility. Entities like Facebook have to remain accountable to those who entrust them with such power. While Facebook has played a crucial role in enabling free speech by providing a voice to the voiceless and a means to escape state censorship, it has simultaneously become a platform for disruptive messages, voices, and ideologies. The successful functioning of a liberal democracy can only be ensured when citizens are able to make informed decisions, keeping in mind a plurality of perspectives and ideas. The information explosion in the digital age creates new challenges that modulate debate on issues where opinions can be vastly divided. Thus, while social media enhances equal and open dialogue between citizens and policy makers, it has also become a tool in the hands of various interest groups that recognise its disruptive potential. This results in a paradoxical outcome where extremist views are peddled into the mainstream, thereby spreading misinformation. Established independent democracies are seeing the effect of such ripples across the globe and are concerned. Election and voting processes, the very foundation of a democratic government, stand threatened by social media manipulation. This has given rise to significant debates about the increasing concentration of power in platforms like Facebook, especially as they are said to employ business models that are privacy‑intrusive and attention‑soliciting. The effect on a stable society can be cataclysmic, with citizens being polarized and paralyzed by such debates, dividing society vertically. Less informed individuals might tend not to verify information sourced from friends, or to treat information received from populist leaders as gospel truth., It is interesting to note that the Oxford Dictionary in 2016 chose “post‑truth” as the word of the year. The adjective is defined as relating to circumstances in which objective facts are less influential in shaping public opinion than appeals to emotion and personal belief. This expression gained relevance in the context of the 2016 United States Presidential Elections and the United Kingdom’s Brexit referendum, two important events with effects beyond their territorial limits. The obfuscation of facts, abandonment of evidentiary standards in reasoning, and outright lying in the public sphere left many aghast. A lot of blame was placed on social media as a source of this evolving contemporary phenomenon where objective truth is becoming a commodity with diminishing value. George Orwell, in his 1943 essay titled “Looking Back on the Spanish War”, expressed that the concept of objective truth is fading out of the world. He warned that such lies, or similar lies, will pass into history, a prediction that has proved prophetic., In the conspectus of the aforesaid, it is difficult to accept the simplistic approach adopted by Facebook—that it is merely a platform posting third‑party information and has no role in generating, controlling or modulating that information. The endeavour to hide behind such simplistic models has been found unacceptable by the United Kingdom Parliament. The House of Commons Digital, Culture, Media and Sport Select Committee in its 2018 report opined that this would amount to shirking responsibility with respect to content regulation on their site. Serious questions have been raised about whether there is a faulty architecture of such intermediary platforms and whether the kind of free, liberal debate they sought to encourage has itself become a casualty, defeating the very objective of providing that platform. It is too late for companies like Facebook to deny that they use algorithms—sequences of instructions with some human intervention—to personalise content and news to target users. The algorithms select content based on several factors including social connections, location, and past online activity of the user. These algorithms are often far from objective, with biases capable of being replicated and reinforced. The role played by Facebook is thus more active and not as innocuous as is often presented when dealing with third‑party content., In the proceedings before us, Facebook contends that there are times when it is accused of bias by both sides, yet this is a sequitur to its ability to decide which content to amplify, suggest, and elevate. Internationally, Facebook has had to recognise its role in failing to prevent division and incitement of offline violence in the context of the ethnic cleansing in Myanmar, where a crescendo of misinformation and posts missed by Facebook employees helped fuel the violence. The platform similarly apologised for its lack of serious response to evident signs of abuse in Sri Lanka, which stoked widespread violence in 2018, and acknowledged its need to be regulated, though the exact method remains unclear and is a prerogative of the law‑making authority., There have been endeavours in light of the aforesaid by countries such as Australia, the United States, the United Kingdom, and the European Union to regulate platforms like Facebook in an efficient manner, but their efforts are still at a nascent stage as studies are undertaken to understand the dynamism of the platform and its disruptive potential. A recent example is Australia’s effort to formulate legislation that would require Facebook to pay publishers for using their news stories. The law was seen as a tool to regulate the platform’s unchecked influence over political discourse, society, and democracy. In response, Facebook blocked all news on its platform across the country, resulting in some relaxation but ultimately a mediated outcome. The United States has also seen heated debates arising from the 2016 Presidential elections with allegations of interference facilitated by platforms like Facebook. In 2020 the European Union formulated legislative proposals namely the Digital Services Act and the Digital Markets Act, setting out rules for platforms to follow. Australia’s News Media and Digital Platforms Mandatory Bargaining Code Bill, 2020 was also formulated., The sheer population of India makes it an important destination for Facebook. India is possibly more diverse than the whole of Europe in local culture, food, clothing, language, religion, traditions and yet has a history of unity in diversity. This cannot be disrupted at any cost or under any professed freedom by a giant like Facebook claiming ignorance or lack of any pivotal role. The factual context: Delhi, the capital of India, witnessed an unfortunate eruption of violence between 24 February and 29 February 2020 with communal riots in different parts of North‑East Delhi. This caused loss of life and property and disrupted civic services. The incident also took on a political colour, producing a divide in society with people across political affiliations blaming each other. In the wake of these riots, the Legislative Assembly of the National Capital Territory of Delhi resolved to constitute a Committee on Peace and Harmony under the chairmanship of Mr Raghav Chadha, Member of the Legislative Assembly, on 2 March 2020. The Committee was tasked with considering factors and situations that have the potential to disturb communal harmony in the National Capital Territory of Delhi and to suggest measures to eliminate such factors and to establish harmony among different religious, linguistic, or social groups. The Terms of Reference, issued on 12 March 2020, specified that the Committee shall consist of nine members nominated by the Speaker, shall have a term of one year, and shall have powers, privileges and immunities as are available to the Committees of the Legislative Assembly of the National Capital Territory of Delhi., The first public meeting of the Committee was held on 5 March 2020, attended by religious leaders, social workers and various officials. The Committee reported that thousands of complaints were received, inter alia suggesting that Facebook had been used as a platform for fomenting hate and jeopardising communal harmony. This was further fuelled by an article published in The Wall Street Journal on 14 August 2020 titled “Facebook’s Hate‑Speech Rules Collide with Indian Politics”, which alleged a broad pattern of favouritism towards the ruling party and Hindu hardliners and raised serious allegations of lapses by Facebook India in addressing hate‑speech content., The first important development was that on 20 August 2020 the Parliamentary Standing Committee on Information Technology issued a notice requesting Mr Ajit Mohan, Vice President and Managing Director of Facebook India Online Services Private Limited, to appear before the Committee on 2 September 2020. The notice sought Facebook India’s views on safeguarding citizens’ rights and preventing misuse of social and online news media platforms, with special emphasis on women’s security in the digital space. The notice instructed that senior representatives of Facebook India appear before the Committee, that the number of representatives be limited to a maximum of five persons due to the COVID‑19 pandemic, and that a brief note highlighting their views be submitted to the Committee in advance., The Parliamentary Committee also annexed a Points of Conduct and Etiquette document for witnesses appearing before Parliamentary Committees or their sub‑committees. The document stipulated that witnesses should show due respect to the Chairman by bowing while taking their seat, take the seat opposite the Chairman, take an oath or affirmation if asked, answer specific questions put by the Chairman or authorized persons, use courteous language, bow to the Chair when withdrawing, refrain from smoking or chewing while seated, and not bring cellular phones inside the Parliament House Complex. It further listed acts that would constitute breaches of privilege and contempt of the Committee, including refusal to answer questions, willful false evidence, trifling with the Committee, and destroying or damaging material documents., Mr Ajit Mohan duly appeared before the Parliamentary Committee and offered his views. The second development occurred on 31 August 2020 when the Chairman of the Committee held a press conference summarising the complaints received between 25 August and 31 August 2020. The Chairman stated that it prima facie appeared that Facebook had colluded with vested interests during the Delhi riots of February 2020 and suggested that Facebook ought to be treated as a co‑accused, with an independent investigation into its role. The Chairman noted that before any action is taken, Facebook should be given a chance to appear before the Committee. Consequently, a notice for appearance was issued on 10 September 2020 (the First Impugned Summons) to Mr Ajit Mohan, calling him as a witness to testify on oath before the Committee on 15 September 2020. The summons highlighted numerous complaints alleging intentional omission and deliberate inaction by Facebook in tackling hate‑speech online and referred to the Wall Street Journal article., On 13 September 2020 Mr Vikram Langeh, Director of Trust and Safety at Facebook, sent a reply emphasising that Facebook’s internal policies seek to protect user safety and security and describing the mechanisms employed to tackle hate‑speech content. The reply noted that Facebook had removed 22.5 million pieces of hate‑speech content in the second quarter of 2020, nearly 95 percent of which were removed before being reported. Facebook asserted that regulation of intermediaries like Facebook falls within the exclusive authority of the Union of India, exercised through the Information Technology Act, 2000, and that law and order in the National Capital Territory of Delhi also falls within the exclusive domain of the Union of India. Accordingly, Facebook objected to the notice and requested its recall, reserving all its rights., The Committee found Facebook’s response unsatisfactory and formulated a reply on 18 September 2020 addressed to both Mr Ajit Mohan and Mr Vikram Langeh.
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The three annexures enclosed with the reply were: (a) Terms of Reference of the Committee (Terms of Reference); (b) Sections 18 and 37 of the Government of National Capital Territory Act, 1991 (Government of National Capital Territory Act); and (c) fresh summons issued to Mr. Ajit Mohan (Second Impugned Summons) under Rule 172 of the Rules of Procedure and Conduct of Business in the Legislative Assembly of the National Capital Territory of Delhi (the Rules)., The Committee's reply alluded to its Terms of Reference to emphasise that it was in furtherance of the objective of good governance and to carry out responsibilities of the State under the Constitution. The purpose, it was stated, was to invite the public to join this exploratory process, the remit of which included making suggestions to the Union Government beyond using the mechanisms of the Inter-State Council. This was stated to be in line with the principles of cooperative federalism, which encompassed a large number of areas. At this stage a perceived element of threat was held out to Mr. Ajit Mohan stating that his refusal to appear was inconsistent with the law of privileges of a legislature, which extends to the Committee and its members. He was asked to appear before the Committee on 23 September 2020 in the spirit of democratic participation and constitutional mandates. Importantly, it was clearly stated that non‑compliance would be treated as breach of privilege of the Committee and necessary action would be taken., It is the aforesaid Second Impugned Summons which triggered the filing of the present proceedings under Article 32 of the Constitution of India by Mr. Ajit Mohan as the first petitioner, in his capacity as the Vice President and Managing Director of Facebook India Online Services Private Limited, which is the second petitioner. The third petitioner is the parent company, Facebook Inc., United States. The array of respondents includes the Legislative Assembly of the National Capital Territory of Delhi as the first respondent while respondents numbered 2 to 4 are the Union of India, represented through different ministries, namely the Ministry of Law and Justice, the Ministry of Home Affairs and the Ministry of Electronics and Information Technology. Respondents 5 and 6 are the Lok Sabha and the Rajya Sabha respectively. Delhi Police was impleaded as the seventh respondent. In the course of the proceedings the Committee sought to be impleaded as a party and, by consent order dated 20 January 2021, the said entity was permitted to intervene. The prayers made in the writ petition are as follows: (a) issue a writ, order or direction in the nature of mandamus setting aside the impugned summons dated 10 September 2020 and 18 September 2020; (b) issue a writ, order or direction in the nature of prohibition restraining Respondent No.1 from taking any coercive action against the petitioners in furtherance of the impugned summons; and (c) issue or pass any writ, direction or order which the Supreme Court of India may deem fit and proper under the facts and circumstances of the case., On 23 September 2020, in the presence of the counsel of the parties, notice was issued. Dr. Singhvi, learned Senior Advocate appearing for Respondent No.1, on instructions, stated that the meeting scheduled for the said date had already been deferred and no further meeting would be fixed qua the petitioners till the next date of hearing. Further, on the Supreme Court of India's query regarding the role of Respondents 5 and 6 (the Lok Sabha and the Rajya Sabha respectively), Mr. Harish Salve, learned Senior Advocate appearing for Petitioners 1 and 2 submitted that the only purpose of serving them was that although no relief was claimed, there was a perception that there may be some interplay of powers between the Delhi Secretariat and the Secretariat of the Central Government., The aforesaid interim arrangement continued as pleadings were completed. The matter was set down for hearing with rule nisi being issued on 21 January 2021. The issue was debated before us on numerous dates thereafter and the hearing concluded on 24 February 2021. We recorded that the counsels had argued over a period of 26 hours, leaving the task to us to pen down the judgment, which we seek to perform now., At this stage, we must note a significant development that arose during the course of the proceedings, possibly emanating from certain questions posed by the Supreme Court of India qua the press conference, the summonses issued to Petitioner No.1, and on account of certain submissions advanced by learned counsel for the petitioners. An affidavit was placed before us (as recorded in the proceedings of 4 February 2021) in terms whereof the two impugned summonses issued to Petitioner No.1 dated 10 September 2020 and 18 September 2020 stood withdrawn. A fresh notice was issued on 3 February 2021 (the New Summons) to Petitioner No.2, i.e., Facebook India alone. The New Summons dated 3 February 2021 reads as follows:, Committee on Peace and Harmony No.24/3/P&H/2020/LAS‑VII/Leg./1305 Date: 3 February 2021 Notice/Summon for Appearance Facebook India Online Services Private Limited Address 1: One BKC, Bandra Kurla Complex, Bandra (East), Mumbai, India‑400051 Address 2: Level‑17, DLF Horizon Building, Two Horizon Centre, Golf Course Road, DLF Phase 5, Sector 43, Gurugram, Haryana 122022 Subject: Notice for Appearance under Rule 172 of the Rules of Procedure and Conduct of Business in the Legislative Assembly of the National Capital Territory of Delhi. 1. In supersession of earlier notice(s)/summons dated 10 September 2020 and 18 September 2020, the present notice for appearance is being issued. 2. I am directed to state that the National Capital Territory of Delhi had witnessed unprecedented communal disharmony and violence in February 2020. The Honourable Speaker of the Legislative Assembly of the National Capital Territory of Delhi has constituted a Committee on Peace and Harmony under the Chairmanship of Shri Raghav Chadha along with other Honourable Members of the Legislative Assembly to recommend suitable measures to defuse the situation and restore harmony among religious communities, linguistic communities or social groups. The Committee aims to recommend preventive and remedial measures concerning issues of governance, social cohesion, unity, brotherhood and peace. The Committee further aims to recommend measures to strengthen overall social and economic development in the context of establishing communal harmony and peace in society in the National Capital Territory of Delhi. 3. Keeping in view the importance of the above subject and its implication on persons in the National Capital Territory of Delhi, various persons including journalists, former bureaucrats and community leaders have appeared before the Committee to offer their evidence and suggestions. The Committee has observed and is of the opinion that social media has a very important role in curbing the spread of false, provocative and malicious messages which can fan the violence and disharmony. 4. Since Facebook has lakhs of users in the National Capital Territory of Delhi, in the above‑stated context, the Committee has decided to hear the views of representatives of Facebook India on the above subject at its sitting scheduled to be held on 25 February 2021 from 11 a.m. onwards in MLA Lounge‑1, Assembly Complex, Old Secretariat, Delhi‑110054 as per the Rules of Procedure and Conduct of Business of the House. 5. It is, therefore, requested that a competent senior representative of Facebook India well conversant with the issues involved may appear before the Committee on the said date, time and venue as a witness. The names and designations of the representatives from Facebook India who will appear before the Committee may be intimated to this Secretariat by 24 February 2021 or before positively. Because of the COVID‑19 pandemic, you are requested to restrict the number of representatives to a minimum. 6. Please note that failure to send a representative as summoned above could, in terms of the Rules of Procedure and Conduct of Business in the Legislative Assembly of the National Capital Territory of Delhi, lead to initiation of proceedings for breach of privilege or contempt of the Assembly. 7. In light of the above supersession, previous notice(s)/summons dated 10 September 2020 and 18 September 2020 stand withdrawn., Dr. Singhvi submitted that since the legal position was being debated in the larger context, the New Summons would not make a difference, except that the specific challenge to the earlier summonses would not stand as they were withdrawn and had been substituted with the New Summons. It was Mr. Salve's view that this would not really be a redeeming feature and the matter still had to be debated., Notably, a discordant note arose in the stands canvassed on behalf of the Assembly by Dr. Singhvi and on behalf of the Committee by Dr. Rajeev Dhavan. In the perspective of Dr. Dhavan, the earlier summons were as good in law as the New Summons and thus made no difference. Dr. Singhvi thought otherwise, as there would have been no occasion to withdraw the earlier summons and issue a fresh summons. This aspect was emphasised in the course of arguments in the rejoinder by Mr. Salve., One aspect to be noticed is that the New Summons dated 3 February 2021 was issued by the Deputy Secretary of the Committee. Thus, on the one hand, the Committee deemed it appropriate to withdraw the earlier summons and issue a fresh one, apparently wiser after some arguments from Mr. Salve and possibly some remarks of the Supreme Court of India, while on the other hand, as an intervening entity, the stand of Dr. Dhavan was that this was not required to be done. On this, we say no more., In his opening arguments Mr. Salve emphasized that, niceties aside, one has to consider the true intent with which the summons was issued. He asserted that the objective was to file a supplementary charge sheet and rope in Facebook. To substantiate this contention, he referred to three factors: (a) Paragraph 4(vii) read with 4(i) of the Terms of Reference of the Committee; (b) the relevant article; and (c) the press conference dated 31 August 2020., The aforesaid was in the background of a politically polarised issue and Mr. Salve contended that the petitioner had no intent to become part of such a debate. The parent company, Facebook Inc., being an intermediary based in the United States, could hardly be expected to be roped into this political battle which formed the basis of the summonses that have been issued. It was emphasised that the Committee's actions amounted to a clear and present danger of coercive action, which was in violation of Petitioner No.1's fundamental rights. In the process of reading his note of arguments, four issues were sketched out: (1) does a House have a privilege to summon a person to give evidence who is not directly or indirectly part of the executive; (2) do powers of privilege extend to summoning an individual and compelling them to give evidence on matters of fact or seek their opinion on any subject matter; (3) if such a privilege exists, how is it reconciled with an individual's right to privacy and free speech; and (4) is the House constrained by the subject matter which constitutes a part of the business of the House relating to its legislative functions. In light of these issues, we propose to set out the detailed arguments and thereafter proceed with our analysis under three broad heads: (a) the privileges issue, (b) privilege, right to privacy and free speech, and (c) legislative competence., Mr. Salve traced the history of the notion of privilege, explaining that privilege is a special right enjoyed by a House as a shield to enable it to work without fear or interference. It originates in the United Kingdom under the constitutional role of the House of Commons, which functioned as a court. In the Indian context, parliamentary privileges are strictly restricted to legislative functions and serve to safeguard the integrity of legislative functions against obstructions by members or non‑members. He referred to several judicial pronouncements, including State of Karnataka v. Union of India, where the Supreme Court held that powers indicated in Article 194(3) are not independent but are necessary for the conduct of business of each House and cannot be expanded to the extent of the House of Commons. He also cited Amarinder Singh v. Special Committee, Punjab Vidhan Sabha & Ors., where the Supreme Court observed that expulsion of a member on the ground of breach of privilege was beyond the powers of the Punjab Vidhan Sabha because the alleged act was an executive function, not a legislative one. The Court discussed the distinction between privilege and function, noting that privileges are rights absolutely necessary for the due execution of a House's powers., Mr. Salve then dealt with the issue of judicial scrutiny of the Assembly's proceedings, stating that there is no absolute bar on courts to examine the validity of such proceedings. In the context of Article 212 of the Constitution read with relevant sections of the Government of National Capital Territory Act, if proceedings adopted by the Assembly suffer from lack of jurisdiction or are illegal or unconstitutional, a challenge can be made before the competent court. He relied upon judicial pronouncements in Special Reference No.1 of 1964, Raja Ram Pal v. Honourable Speaker, Lok Sabha & Ors., and Kalpana Mehta & Ors. v. Union of India & Ors., In Special Reference No.1 of 1964 the dispute arose out of a conflict between the legislature and the judiciary when the Uttar Pradesh Assembly passed a resolution against two judges. The President of India referred the question to the Supreme Court under Article 143(1). The Court held that the powers conferred on the High Court under Article 226 and the authority of the Supreme Court under Article 32 are not subject to any restrictions, and that citizens can approach the courts even when fundamental rights are alleged to be violated by legislative action., In Raja Ram Pal the Supreme Court answered three questions in the affirmative: (i) the Court has jurisdiction to decide the content and scope of powers, privileges and immunities of the legislature and its members; (ii) the power and privileges of the legislature, including expulsion of members, fall within Article 105; and (iii) the Court can interfere in cases of expulsion. The Court emphasized that while there is a presumption that legislatures act within their powers, their actions are amenable to judicial review when they involve jurisdictional error or substantive illegality., In Kalpana Mehta and Ors. the Court considered whether a report of a parliamentary standing committee could be relied upon in judicial review. It held that constitutional courts are not prevented from scrutinising the validity of legislative actions that trespass on fundamental rights, and that there is no immunity for parliamentary proceedings under Article 105(3) when the proceedings are tainted by substantive or gross illegality or unconstitutionality., Finally, on the issue of privileges, Mr. Salve referred to the position in some other countries, contending that privilege powers could not be used to compel speech, especially when the organisation in question is an American corporation. He noted that when such corporations operate within the territory of India and are subject to the jurisdiction of the Supreme Court of India, they cannot claim a special privilege by reason of being incorporated abroad., He reproduced the relevant provisions of the Scotland Act, 1998 (Section 23) and the Government of Wales Act, 2006 (Section 37), emphasizing that the word ‘may’ indicates no element of compulsion and that the privilege should relate to matters connected with the functions of the ministers. He argued that the Committee's purpose was not a core function of the Assembly and therefore could not be said to be within its legislative competence. Moreover, if only an opinion was being sought, oath could be given only on a question of fact, not on a matter of opinion., Learned senior counsel also assailed the intent of the New Summons as a subterfuge, arguing that compelling experts to give an opinion in a democratic polity would be an abhorrent proposition and that the act of the Assembly reeked of constitutional arrogance. He stressed that the submission was not challenging the exercise of privilege power but the very existence of the same. He pointed out that Entry 39 of List II (Powers, privileges and immunities of the Legislative Assemblies) could not be the source of the Assembly's power; instead, the power derived from Section 18 of the Government of National Capital Territory Act, enacted in pursuance of Article 239AA(3)(a) and (3)(b) of the Constitution. Thus, a distinction was drawn between a power directly emanating from the Constitution and one flowing from a statutory provision., In the given facts, the power exercised by the Assembly was a statutory one and, as such, would necessarily have to be tested against Part III of the Constitution. The relevant constitutional provisions are extracted herein: Article 239AA(3)(a) and (3)(b) – Special provisions with respect to Delhi. (a) Subject to the provisions of this Constitution, the Legislative Assembly shall have power to make laws for the whole or any part of the National Capital Territory with respect to any of the matters enumerated in the State List or in the Concurrent List, except matters with respect to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of that List as they relate to those entries. (b) Nothing in sub‑clause (a) shall derogate from the powers of Parliament to make laws with respect to any matter for a Union territory or any part thereof.
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Section 18 of the Government of National Capital Territory of Delhi Act provides the powers, privileges, etc., of members. (1) Subject to the provisions of this Act and to the rules and standing orders regulating the procedure of the Legislative Assembly, there shall be freedom of speech in the Legislative Assembly. (2) No member of the Legislative Assembly shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Assembly or any committee thereof and no person shall be so liable in respect of the publication by or under the authority of such Assembly of any report, paper, votes or proceedings. (3) In other respects, the powers, privileges and immunities of the Legislative Assembly and of the members and the committees thereof shall be such as are for the time being enjoyed by the House of the People and its members and committees. (4) The provisions of sub‑sections (1), (2) and (3) shall apply in relation to persons who by virtue of this Act have the right to speak in, and otherwise to take part in the proceedings of, the Legislative Assembly or any committee thereof as they apply in relation to members of that Assembly., We may clarify at this stage that since the submissions were drawn in the context of certain questions raised, this latter submission really arises in the context of privilege powers vis-à-vis the constitutional provisions under Part III of the Constitution, which are to be considered under a separate section., It appears that the petitioners wanted to avail of the benefit of another senior counsel, possibly to further buttress their submissions; consequently, Mr. Arvind Datar, learned senior counsel, sought to address us on behalf of Petitioner No. 3, Facebook Inc., Mr. Datar, in an endeavour to trace out the constitutional history, referred to the origin of powers and privileges by inviting our attention to Section 71 of the Government of India Act, 1935. He stressed that the provincial legislatures had no powers but only privileges; they did not have powers to punish people under that Act. He then pointed out that Chapter XI of Erskine May’s seminal commentary on Parliamentary Practices deals with powers and Chapter XII deals with privileges and immunities, which are used interchangeably, although power remains distinct. The primary power given to the House was to make laws. These powers from the Act of 1935 are stated to have been adopted under Article 194(3) of the Constitution of India, which applies to the State Government and every State Assembly., Learned senior counsel submitted that Delhi is different as it is on a special footing, being categorised as a Union Territory in Article 239AA of the Constitution. Reiterating Mr. Salve’s argument, Mr. Datar stressed that the powers and privileges conferred on the Delhi Assembly are not derived from the Constitution but by reason of statutory enactments, i.e., Section 18 of the Government of National Capital Territory of Delhi Act. The privilege and powers of the Assembly are, thus, undoubtedly to be tested against Part III of the Constitution. These being statutory in nature, the aspect of constitutional balancing of powers with fundamental rights, as arose in In Special Reference No. 1 of 1964 and M.S.M. Sharma, does not arise in the present case. The privilege here is a derivative from an Act of Parliament and not from any constitutional provision., We now turn to the submissions of the respondents on this issue, which were argued by Dr. Singhvi, learned senior counsel, on behalf of the Assembly. He sketched out his submissions as follows: The occasion to argue privilege had not even arisen and was premature as there was no actual notice of privilege; therefore there was no factual matrix before the Court to analyse the exercise of the power, and what was being sought by the petitioners amounted to an advance ruling on the issue. Were the arguments of the petitioners to be accepted, they would have wide ramifications on the working of the committees across the nation at both the State and Parliamentary levels. The petitioners could not be conferred with the privilege to appear before the kind of committees they sought, although they had appeared on more than one occasion of a similar nature without any qualms. The reference to the Information Technology Act was premature as the Assembly was not debating any legislation on the issue but only discussing a particular aspect. The arguments of the petitioners were premised on a lack of mutual respect and difference between the organs of our democracy. Committee proceedings are House proceedings and the Supreme Court of India would normally never interfere with House proceedings and therefore also not with committee proceedings., The obvious political divergence between the Central Government and the State Government came out quite openly during the arguments where Dr. Singhvi sought to put forth the argument that the bold stand of the petitioners stood on a support base from the Central Government. The appearance before the Parliamentary Committee was sought to be justified by the petitioners as being based on commercial and operational reasons and not in view of any compulsion, an aspect disputed by the learned Solicitor General on behalf of the Central Government. The petitioners, it was argued, were actually canvassing a case on the absence of any commercial and operational consequences rather than lack of jurisdiction. It was, however, fairly assured that the Assembly and the Committee were not oblivious to the constitutional exclusion of entries 1, 2 and 18 of List II and the respondent would never contend to encroach upon this constitutional demarcation. One aspect which Dr. Singhvi sought to emphasise, in our view not very convincingly, was that the issue of the press conference was an afterthought raised by the petitioners to create prejudice. The press conference being held is not in doubt nor what transpired there. The only turn which Dr. Singhvi could give to this is that what the Chairman of the Committee mentioned in the press conference were the views of the persons who had deposed and not his own view per se. We find this submission very difficult to accept and will deal with it at the relevant stage., The other aspect which Dr. Singhvi pointed out was the withdrawal of the Second Impugned Summons and the issuance of a New Summons, which no longer compelled Petitioner No. 1 to appear before the Committee. This aspect has been labelled as a subterfuge by Mr. Salve, on account of the divergent views taken on the aspect of withdrawal by Dr. Singhvi and Dr. Dhavan. Consequently, Dr. Singhvi will have to bear the burden of proof for the same., On the specific plea of privilege, Dr. Singhvi commenced by seeking to establish that all committees of legislatures have the power to summon and compel attendance. He argued that any power without subsidiary powers to ensure implementation is akin to having no power at all. The power to compel attendance by initiating privilege proceedings is therefore an essential power. He further contended that the power of privileges was amorphous in common law and that Parliament has consciously not codified this area of law so that it can cater to unimagined situations in the future., Dr. Singhvi cautioned that this Court should not embark on the path suggested by Mr. Salve, who had argued that it was time that these privileges were codified. He urged the Supreme Court of India not even to opine on the necessity of codifying such privileges and that the same should be left to Parliament, if it so desires, without any nudge by this Court., Dr. Singhvi sought to erase the distinction between the exercise of privilege powers under the Constitution and under the Government of National Capital Territory of Delhi Act by putting them on the same pedestal, urging that the two together provide for the scheme of operation. He referred to provisions (7)(a) and (b) of Article 239AA in the context that the GNCTD Act was not to be deemed an amendment to the Constitution for purposes of Article 368 notwithstanding that it may contain any provision which amends or has the effect of amending the Constitution. The Assembly was thus submitted to be a privileged body with members enjoying freedom of speech in the House as well as freedom to vote, and having all the privileges under Section 18 of the GNCTD Act as are enjoyed by Members of Parliament. It was urged that calling into question the proceedings of the Committee amounted to calling into question the proceedings of the Assembly in a court of law for which the powers were not vested. The regulation of the procedure of conduct of business was not subject to jurisdiction of the courts. To establish parity of the privilege powers, Dr. Singhvi drew the attention of the Court to Article 105 of the Constitution, Section 18 of the GNCTD Act coupled with Rule 172 of the Rules., On this aspect, parity was sought to be drawn by relying on Parliamentary privileges in Entry 74 of List I and that of the Legislative Assembly in Entry 39 of List II, which were stated to be pari materia. Delhi was submitted to be no different, and thus the powers of the Assembly are the same under Entry 39 of List II as any other Assembly in the context of Article 239AA of the Constitution. Learned counsel further drew strength from the observations of the Supreme Court of India in State (NCT of Delhi) v. Union of India and Another, which comprehensively dealt with the segregation of powers between the State and the Central Government. The Court opined that all entries in List II will have full play except three specific entries which were excluded, i.e., entries 1, 2 and 18., In view of Article 239AA(3)(a), the power to summon and compel attendance was stated to be akin to that of any other legislative assembly. Testimonies before committees were stated to be mostly under oath, and the rationale was that the process was solemn in nature and would improve the quality of debate. There was no competing entry in List I and the question of repugnancy would arise only in terms of any entry in List III where there are central statutes. The committees of legislatures all over the country, including Delhi, thus possess the power to compel attendance of witnesses as a part of their constitutionally recognised powers and privileges, and there could be no distinction based on the kind of committee or the type of person summoned., We note another submission of Dr. Singhvi where he cautioned the Court against ruling in a manner wished for by the petitioners on account of its wider ramifications, especially in the context of observations made in Kalpana Mehta and Others on the importance of committees. Any hampering of the working of the committee would hamper the working of the Assembly, as passing laws is not the only function of the Assembly. The practice of passing resolutions by Assemblies on the sense of the house would be disrupted. The significance of the working of these committees has been well considered in Kalpana Mehta and Others. Woodrow Wilson, the twenty‑eighth President of the United States, was quoted as saying in 1885 that it is not far from the truth to say that Congress in session is Congress on public exhibition, whilst Congress in its Committee rooms is Congress at work. Committees may not be of much service in the more spectacular aspect of democratic institutions, but they are absolutely indispensable for the detailed work of supervision and control of the administration, investigation of complicated social problems, obtaining expert advice on technical matters, and providing advice based on inquiry involving examination of witnesses., Dr. Singhvi concluded by emphasizing that not a single judicial precedent from India or elsewhere had been cited where the Court had intervened at the stage of summoning a witness by the legislature (sub‑committee). Reliance was placed on the judgment of the Madras High Court in C. Subramaniam v. The Speaker, Madras Legislative Assembly, where a show‑cause notice issued by the Speaker was rejected by the Full Bench as premature because no action had been taken. The Court held that the power vested under Article 194(3) of the Constitution empowered the Speaker to call upon a third party to show cause against an alleged breach of privilege. In the present case, even a show‑cause notice had not been issued as the petitioner had only been called upon to depose; thus, there was not even an initiation of any privilege proceedings., We now turn to the arguments of Dr. Rajeev Dhavan on behalf of the Committee which sought to intervene in the present proceedings. The Committee is a creation of the Assembly, but like the petitioners, the respondents wanted assistance of more than one counsel in the belief that it would further advance their case. In the process, some contradiction of stand arose regarding the implication of the issuance of the New Summons and withdrawal of the old one., Dr. Dhavan laid great emphasis on the main functions of the Committee, taking a cue from its description as a Peace and Harmony Committee. The functions were to consider viewpoints across society about the prevalence of situations that could disturb communal peace and harmony or where communal riots had occurred, to examine in detail and identify the factors responsible, to undertake scientific study on religious, linguistic, and social compositions of the population of Delhi NCR with a view to identify and strengthen factors that unite people despite their diversity, and to recommend measures to be undertaken by the government towards establishing communal harmony and peace in the State. He noted that even if a writ were issued to the Assembly, it could not be deemed to have been issued to the Committee because the Committee is an autonomous body that eventually reports to the Assembly and thus enjoys a separate legal existence. Nevertheless, the Committee was permitted to intervene, and there was no objection from Mr. Salve., The initial rebuttal to the challenge is based on the anticipatory nature of the proceedings, being presumptive and pre‑emptive. Several stages of scrutiny occur before a breach of privilege notice is even issued, let alone any conviction arising from such a breach., It was further contended that no factual basis had been laid for the concerns regarding the First and Second Impugned Summons and the press conference. Fundamental rights could not be said to be violated by a mere issuance of summons. There was a lack of specificity of any claim of mala fides, which must be pleaded and proved with all material particulars. This aspect was absent in the present case. Dr. Dhavan categorised the writ petition as a Strategic Lawsuit Against Public Participation (SLAPP), engineered to silence the Committee and interfere with the democratic process., Dr. Dhavan clarified the statements made by Mr. Raghav Chadha during the press conference on 31 August 2020, contending that they were merely a summary of the complaints received by the Committee and did not represent the Chairman’s views, the Committee’s conclusions, or the scope of the Committee’s functions. The Committee had not suo moto decided that the petitioners were responsible for causing disharmony; it had received complaints from several different people who specifically attributed the disharmony caused by the riots in Delhi to Facebook. Therefore, the statements made in the press conference were not made in bad faith and were simply repetitions of the depositions., The contention on the Committee’s Terms of Reference recommending criminal action was stated to be toothless. The relevant part of the Terms of Reference (paragraph 4(vii)) was otiose. The Committee could at best make recommendations; whether criminal action was initiated was entirely the remit of the police or the judiciary, and no real threat was made to the petitioners by the Terms of Reference or by the impromptu statements made by the Chairman in the press conference., The aforesaid submissions may have mollified the petitioners, though apparently not Mr. Salve. According to his submissions, all aspects must be read together to conclude whether the petitioners had a real concern to approach the Court. This includes the Terms of Reference recommending criminal action, the utterances of Mr. Raghav Chadha in the press conference, and the limitation on the legislative domain by carving out certain entries from List II as applicable to the Assembly. We will pen down our view on this aspect at a later stage., We now come to arguments of Dr. Dhavan that were in sync with what Dr. Singhvi had argued, i.e., in view of the judicial observations, these committees are the eyes and ears of the Parliament, essential for the democratic polity. The functions performed by the committees are part of the core legislative functions of State Assemblies, which may include supervising administration, taking evidence on legislation, and dealing with a crisis or governance generally. Dr. Dhavan pointed out that the petitioners had not challenged the constitution of the Committee itself or its Terms of Reference, nor had they challenged the summons issued by Parliament despite Parliament’s threat to initiate breach of privilege proceedings in case they refused to appear. Consequently, Facebook could not be said to have any issue while appearing before the Parliamentary Committee. The role of intermediaries in governance was relevant and the testimony of the petitioners was important in that context. The refusal was sought to be labelled as being for political reasons., Dr. Dhavan then turned to the aspect of the distinction drawn by Dr. Singhvi between members and non‑members in the context of the legislature’s power to summon witnesses or initiate breach of privilege proceedings. He canvassed that no rule existed whereby non‑members could refuse a summons issued by a legislative committee. The core function of the legislature is democracy and not merely legislation, and therefore every person has an obligation to cooperate with the legislature and appear when requested to assist in the realisation of this core function. Appearances before committees are one such way., In support of the aforesaid plea, Dr. Dhavan illustrated the proposition by giving instances of notices issued to non‑members, which also form a subject matter of a treatise by Dr. Dhavan, Only the Good News: On the Law of the Press in India, published in 1987. Examples include reprimands to persons who questioned the partiality of the Speaker in Kerala Legislative Assembly (1975), a West Bengal Legislature case where a feature writer did not apologise but the editor did (1977), a Karnataka case where an unrepentant editor was reprimanded for accusations of harassing educational institutions (1978), a Tripura case where an editor who criticized an alleged budget leak was sentenced to imprisonment for a day (1981), and a Gujarat case where a threat to institute legal proceedings against a speaker for allowing discussion on sub‑judice matters led the Committee to recommend imprisonment of a person (1982)., On the constitutional status of the Assembly, Dr. Dhavan sought to make a distinction between all Union Territories on the one hand, and Delhi and Puducherry on the other. A second distinction was made between the Delhi and the Puducherry Legislative Assemblies. The significant distinction was that while the Puducherry Legislative Assembly was empowered by Article 239A, the Delhi Legislative Assembly was created through an exercise of constituent power by the Sixty‑ninth Amendment Act, 1991. Thus, while Article 239AA excluded police power and public order from the scope of the Assembly’s competence, that did not detract from it being a full‑fledged working Legislative Assembly similar to Parliament. This aspect was reinforced by Sections 33 to 37 of the GNCTD Act. In Dr. Dhavan’s view, the powers of privilege of the Assembly could be traced to Article 239AA(2) and (7) of the Constitution, Section 18(3) of the GNCTD Act and Rules 160 and 172(4) of the Rules. He drew strength from Article 212(1) to contend that the Constitution grants internal autonomy to each House of the State legislature and the validity of any proceedings cannot be questioned on an allegation of irregularity of procedure. There were conceded limitations to Article 212(1), and this Court has held that interference with the internal functioning of State Legislative Assemblies can only be limited to cases of gross illegality and unconstitutionality. No such illegality having occurred in this case, and only a summons being issued, no proceedings for breach of privilege had been initiated and no question had been asked. As such there was no occasion whatsoever to call for interference by this Court., Akin to Dr. Singhvi’s submission, Dr. Dhavan also emphasized the sui generis nature of parliamentary powers and privileges and vehemently opposed the suggestion that these privileges needed to be codified. The powers and privileges of the legislature do not require a law, and learned senior counsel sought to repel the argument of Mr. Salve that the amorphous nature of privileges offends the law and due process. It would not amount to claiming privilege as they want, as the Supreme Court of India has recognised a Lakshman Rekha to confine the extent and exercise of their powers. Many other legal concepts are similarly amorphous or, in H.L.A. Hart’s language, open‑textured. This does not undermine the credibility of these concepts or reduce the importance of the meaning given to them by the Supreme Court of India. Thus, at this stage, the only question was whether a simpliciter issuance of summons from a sub‑committee was constitutionally improper, to which the answer should be in the negative., The last set of arguments on this point by Mr. Tushar Mehta, learned Solicitor General of India, were limited in contour. He supported the learned counsel for the respondents on the power of Parliament and Assemblies per se to summon, subject to judicial review. However, his next submission was in sync with the petitioners’ submission that the Assembly lacks legislative competence to deal with the subject matter in question. Accordingly, a complete argument on privilege was not required to be considered. In substance, his contention was that the summonses could not have been issued because of lack of legislative competence, but if the Assembly had the legislative competence, then the principles as enunciated by the learned counsel for the respondents were the correct principles., Privileges, Free Speech and Privacy. We have dealt with the aspect of rival contentions arising from the privilege of the House to summon a person, to compel them to give evidence on matters of fact, and to seek their opinion, which are the first two questions framed by Mr. Salve under the head of privileges. Having done so, we proceed to the third question dealing with the interesting aspect of privileges vis‑à‑vis an individual’s right to privacy and free speech., We may at the threshold note that Mr. Salve had to deal with the aspect raised by the respondents that the petition was premature both in the context of privilege per se and in the interaction between privileges and fundamental rights., Mr. Salve strongly refuted the plea that the petition was premature on the basis of the summonses issued by the Committee, where it was threatened that necessary action would be taken against the petitioners for breach of privilege if they did not appear. He submitted that even a threatened breach of fundamental rights is sufficient to invoke the jurisdiction of the Supreme Court of India under Article 32 of the Constitution. Further elucidating this aspect, Mr. Salve submitted that access to justice is a human right available where there is even a threat to personal liberties. In that context, he stated that the Second Impugned Summons left no room for doubt that Respondent No. 2 was determined that the failure to appear would constitute a breach of privilege for which necessary action would be taken, including the risk of arrest and imprisonment. This argument arose from the plea that the petitioner had a right to not appear and, alternatively, a right to remain silent if he so appears.
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In view of the aforesaid fact and the plea that the summons itself was without jurisdiction, it was submitted that the threat of coercive action is itself without jurisdiction and a person need not wait for injury to occur before seeking the Supreme Court of India's protection. Mr. Salve emphasised the importance of the observations made in S.M.D. Kiran Pasha v. Government of A.P. and Ors., where the Court recognised that if a threatened invasion of a right is removed by restraining the potential violator from taking any steps towards violation, the rights remain protected and the compulsion against its violation is enforced. Mr. Salve further relied on Bengal Immunity Co. Ltd. v. State of Bihar and Ors., wherein the Court observed that it is not reasonable to expect the person served with such an order or notice to ignore it on the ground that it is illegal, for he can only do so at his own risk and peril. The certainty of a legal proposition qua the right of a person was thus emphasised by this Court observing a person placed in such a situation has the right to be told definitely by the proper legal authority exactly where he stands and what he may or may not do., The plea raised by Mr. Salve is on the premise that even if a right of privilege validly accrued, the same would have to be narrowly construed and reconciled with the petitioner's right under Part III of the Constitution. The First and Second Impugned Summons addressed to Petitioner No.1 explicitly stated that it was so addressed to him as the one spearheading Facebook, and thus no option was left to Facebook to decide who would appear before the Committee. With the recall of the Second Impugned Summons and the issuance of the New Summons, this aspect urged before the recall of the first notice would not survive., Learned counsel again referred to Article 194(3) of the Constitution to contend that it provides that privilege powers would, from time to time, be defined. The submission was that the Constitution makers had envisaged a clear ambit to be defined for privilege powers, which has unfortunately never happened. Consequently, the plea has been made that either this Court defines the privilege power or directs the legislature to consider defining these privilege powers on the pari materia basis as in Scotland and Wales. In the context of the language of Article 194(3), it was submitted that only such privileges are available to legislatures that can be exercised without impinging on fundamental rights., In the conspectus of this general proposition, it was urged that the summons issued to the petitioner violated his right to remain silent, which was not limited to Article 20 (inapplicable because these were not criminal proceedings) but also implicit in his rights under Article 19(1)(a) and Article 21 of the Constitution. The right of personal autonomy has been held by this Court to include aspects of the choice between speaking and remaining silent., The summons per se, as per the submissions, were violative of the petitioner's right against arbitrary State action under Articles 14, 19, and 21 of the Constitution. Learned counsel was conscious of the judgment of this Court in MSM Sharma and the view expressed therein about powers, privileges, and immunities available in terms of Articles 105(3) and 194(3) of the Constitution. The Court had taken the view that such powers, privileges, and immunities stood in the same position as Part III of the Constitution and that the fundamental right to free speech and expression under Article 19(1)(a) must yield to Article 194. Mr. Salve sought to distinguish this proposition in view of subsequent judicial developments. The principle propounded was submitted to have been eroded by subsequent constitutional developments as per which the right to free speech under Article 19 was to be seen as part of a trilogy of rights along with Articles 14 and 21, and the rights no longer existed in silos. It was thus his contention that the fundamental proposition that privileges can override Article 19 but not Article 21 stood overruled in view of the judicial pronouncements in Maneka Gandhi v. Union of India and R.C. Cooper v. Union of India., We may at this stage consider the interrelation between Article 21 on the one hand and Articles 14 and 19 on the other. We have already pointed out that the view taken by the majority in A.K. Gopalan case was that so long as a law of preventive detention satisfies the requirements of Article 22, it would be within the terms of Article 21 and it would not be required to meet the challenge of Article 19. This view proceeded on the assumption that certain articles in the Constitution exclusively deal with specific matters and where the requirements of an article dealing with the particular matter in question are satisfied and there is no infringement of the fundamental right guaranteed by that article, no recourse can be had to a fundamental right conferred by another article. This doctrine of exclusivity was seriously questioned in R.C. Cooper case and it was overruled by a majority of the full Court, only Ray, J., dissenting. The majority Judges held that though a law of preventive detention may pass the test of Article 22, it has yet to satisfy the requirements of other fundamental rights such as Article 45., We may note in the end an aspect which was raised in the writ petition, but not really contended on behalf of the petitioners: a similar question related to the interplay between the State Legislature's privilege powers under Article 194(3) and a non-member's fundamental rights was pending before a seven‑Judge Bench of the Supreme Court of India in N. Ravi v. Legislative Assembly on account of a perceived conflict between MSM Sharma and Special Reference No.1 of 1964. Dr. Singhvi mentioned this issue only to distinguish and state that N. Ravi was a case that related to the conviction of a non-member which is not so in the facts of the present case., Dr. Singhvi, on behalf of Respondent No.1, once again at the threshold submitted that akin to the privileges issue, this issue is also premature as no coercive action has been taken against the petitioner and none was intended if the authorised representative fairly attended and participated in the proceedings as a witness. The transparency of the proceedings was sought to be emphasised as there was a live broadcast and therefore there could be no question of any apprehension in respect of the proceedings., Learned counsel also sought to assail the maintainability of the writ petition because Petitioners Nos. 2 & 3 are not citizens of India and no shareholder had been impleaded as a petitioner. However, the initial summons was sent to Petitioner No.1, who is a citizen of India, albeit holding an office in Petitioner No.2 organisation. Subsequently, the summons issued to him was withdrawn and a re‑worded summons was issued. The parties had agreed to proceed on the basis of existing pleadings and questions raised. We are thus not inclined at the threshold to look into this contention with any seriousness., Regarding the summons issued to Petitioner No.1 (even though withdrawn), it was urged that a witness could not claim his right to remain silent or to be left alone in response to a summons to depose before a lawful committee of an empowered legislature. Such a right is not a fundamental right under Article 20 of the Constitution unless a person is an accused, as was the case in Selvi which involved rights of an accused in the context of narco analysis and other tests. Petitioner No.1, and anyone who deposes, is not an accused. There is no conflict between Article 19(1)(a) of the Constitution and Rule 174 of the Rules. The right to remain silent is relevant only in criminal investigations. The proceedings before the Committee are not criminal or judicial proceedings. All persons who appear before it are witnesses and subject to examination by the members as per the Rules of the House. These Rules have been made in exercise of the powers conferred under Section 33 of the National Capital Territory of Delhi Act, which in turn draws its strength from Article 239AA(7) of the Constitution. Thus, the mere summons to give expert deposition before the Committee on issues within its remit cannot be said to violate any fundamental rights so as to invoke Article 32 of the Constitution., The distinction between members and non‑members carved out by Mr. Salve was brushed aside by Dr. Singhvi by submitting that there was no such distinction as Article 105(4) uses the expression in relation to persons. The apprehension about self‑incrimination was also urged to be misconceived in view of the constitutional protection envisaged under Article 105(2) of the Constitution., Dr. Singhvi then engaged with the arguments of the petitioners regarding encroachment of fundamental rights, the submissions originally addressed by both parties being in the context of Petitioner No.1. It was submitted that not even a prima facie case was established for the breach of any fundamental right. Petitioner No.1 had not been summoned to speak as a private individual but to speak on behalf of Petitioner No.2. Only a shareholder could have asserted the right on behalf of Petitioners Nos. 2 & 3, as they were corporate entities, because individual rights are not to be subsumed in the company., Surprisingly, Dr. Singhvi urged that Petitioner No.1 has not been summoned to speak as a private individual but to speak for Petitioner No.2. The New Summons also permits any suitable officer to speak on behalf of Petitioner No.2 and if a shareholder can urge a right under Article 32 of the Constitution, we fail to appreciate why an officer of a corporation, to the extent he has been asked to speak, cannot urge this aspect. The First and Second Impugned Summons were specifically addressed to Petitioner No.1 and only during the course of arguments, facing certain difficulties, the initial summons was withdrawn and a new summons issued., The more relevant submission is that in the context of Article 21, at this stage only a summons to appear was issued and there was no question of restriction of personal liberty. The proceedings were not for breach of privilege. No coercive action was taken or intended if Petitioner No.1 (or any other officer) merely appeared and assisted the Committee as a witness. On the issue of right to privacy under Article 21, it was urged that Article 21 itself would have to be read as confined to a person while a corporation has no personhood., The argument of Mr. Salve, based on the trilogy of rights under Articles 14, 19, and 21, was submitted by Dr. Singhvi to be out of context in the present case as the Constitution sets clear parameters for the applicability of certain fundamental rights. Article 19 is still available only to citizens. Article 21 is available only to humans who are capable of having personhood and Article 19(1)(a) continues to be unavailable when legislative privilege is invoked especially if the legislatures are to function effectively. In that context it was urged that the ratio of the decisions in MSM Sharma and In Special Reference 1 of 1964 still hold good. On the right to remain silent, it was urged that this was not a right protected under Article 19(1)(a) of the Constitution as it was not a general right; and if at all this right had to be pleaded, it was to be before the legislature which had summoned Petitioner No.1, and not before the Supreme Court of India. If silence is to be pleaded for a good reason in response to a specific question, that request should be dealt with by the Committee as per applicable rules. Reliance in the petition on the pending reference in N. Ravi would be of no avail to the petitioners as there has been no punishment for any breach so far, making the present case distinguishable., Dr. Dhavan, while advancing his case on behalf of the Committee, sought to lift the corporate veil between Petitioners Nos. 1 & 2, as the true petitioner is Facebook and not Ajit Mohan. The purpose of the summons was to seek Facebook's assistance regarding its role as a social media platform/intermediary in a situation like the Delhi riot, where persons had deposed before the Committee and pointed out the aggravation which had taken place because of platforms like Facebook. The summons had been issued to Facebook's senior representative who could be of assistance and the notice itself made it clear that this notice was issued to Facebook India, not to a specific individual: inasmuch as the notice was issued to Petitioner No.1 in his capacity as a representative of Facebook. Thus, it was contended that neither Article 32 nor Article 19(1)(a) of the Constitution were available to the petitioners as these rights do not extend to corporations. This was stated to be of significance as the petitioner had claimed the right against compelled speech under Article 19(1)(a) of the Constitution. As far as corporations are concerned, there are no personal liberties for corporations though they have certain responsibilities., Learned counsel took us through Article 194(3) to emphasise that it has two parts. The first part deals with privileges being enacted statutorily, while the second part states that until such a law is enacted, legislative privileges are frozen as they stood on 20 June 1979. A trilogy of pre‑1979 cases authoritatively discussed which fundamental rights are attracted in relation to a breach of privilege. MSM Sharma declared that the relevant portion of the Ganapati Keshavan Reddy case was obiter and therefore not binding. Thus, it was submitted that the correct legal position regarding privileges and fundamental rights was laid down in MSM Sharma and Special Reference No. 1 of 1964; i.e., Article 19 of the Constitution does not apply to the exercise of privileges under Article 194(3). The relevant portion of the judgment in MSM Sharma as part of paragraph 27 is extracted as under: \Article 19(1)(a) and Article 194(3) have to be reconciled and the only way of reconciling the same is to read Article 19(1)(a) as subject to the latter part of Article 194(3), just as Article 31 has been read as subject to Article 265 in the cases of Ramjilal v. Income‑tax Officer and Laxmanappa Hanumantappa v. Union of India, where this Court has held that Article 31(1) has to be read as referring to deprivation of property otherwise than by way of taxation.\, Dr. Dhavan, in sync with the arguments of Dr. Singhvi, disputed Mr. Salve's case that Articles 14, 19, and 21 of the Constitution were integrated by R.C. Cooper and Maneka Gandhi into one single right. He submitted that the effect of these cases was only to create India's due process as far as constitutional limitations are concerned. Each of these rights has its own independent existence and correspondingly its own independent limitations. The golden triangle does not invalidate the cases ruling that Article 194(3) of the Constitution, though subject to Article 21, was not subject to Article 19 of the Constitution. The argument of Mr. Salve was thus pleaded to be overstated and contradictory., In the end it was contended that no fundamental right was violated by issuance of summons to the petitioner., Suffice to say that as far as the learned Solicitor General is concerned, no specific arguments were addressed in this behalf except that he drew the attention of the Supreme Court of India to N. Ravi., Elaborate submissions were addressed on the first three aspects by Mr. Salve even though one of the primary issues was whether it was more speculative in character and premature, as at this stage of the assailed proceedings only summons had been issued to the petitioners. The bedrock of Mr. Salve's submissions was based on the alleged lack of legislative competence of the Assembly and consequently of the Committee to look into the subject matter qua which the notice had been issued to the petitioners. The submission, thus, was that in the absence of any such legislative competence, the petitioners were entitled to approach the Court at this stage rather than being compelled to wait for further progress in the proceedings., There were three limbs of this submission. The first limb was in respect of the statutory enactments, i.e., the Information Technology Act, enacted by Parliament under List I, governs and regulates Facebook. This could not be an aspect with which the State Government was concerned. In fact, this was stated to be the reason why the petitioners had willingly cooperated and appeared before the Parliamentary Committee in the past. The second limb was based on the subject matter which the Committee wanted to go into, even though it had been specifically denuded of the power as those subject matters fall within the jurisdiction of the Central Government under Entry 31 (Communications) and under Article 239AA(3)(a) of the Constitution read with Entries 1 and 2 in List II (Public Order and Police). The third limb flowed from these two issues and is based on the unique status of Delhi. He argued that the constitutional scheme specifically took away certain subject matters which would normally fall in List II and would ordinarily be dealt with by a State Assembly. However, in Delhi's case, these powers were conferred on the Central Government., He then took us through the provisions of the Information Technology Act to contend that it is undisputed that Facebook was an intermediary within the definition of the Act. Section 2(1)(w) of the Act defines intermediaries as any person who, on behalf of another person, receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web‑hosting service providers, search engines, online payment sites, online‑auction sites, online‑market places and cyber cafés., In the context of the controversy sought to be raised as regards the role of intermediaries during such law and order problems, Mr. Salve contended that this aspect was covered by the power to issue directions to block public access to any information and was thus squarely covered by Section 69A of the Information Technology Act. The aforesaid provision and its role was not a grey area in view of the judicial pronouncement of this Court in Shreya Singhal v. Union of India. Thus, a well‑developed procedure to deal with such issues was already in place and consequently, the matter was an occupied field by the Central Government., Another issue raised by Mr. Salve was that the legislative domains of public order and police both stood explicitly outside the competence of the Assembly. It was contended that recommendations in matters which fall within List I or which do not fall within List II cannot be said to be legislative functions. It was stressed that the purpose for which the summons was issued, and the issue sought to be addressed by the Committee were aspects of public order and therefore they were not primary functions of the Assembly., The utterances in the press conference were pointed out to contend that it was amply clear that the purpose behind its exercise was to file a supplementary chargesheet which was alien to the powers of the Assembly., The endeavour of Respondent No.1 had been confirmed in the reply filed by the respondents to compel Petitioner No.1 to testify as an expert witness as part of its decision to delve into the matter of concern raised in the complaints (about Facebook). The complaints, in turn, dealt with content allegedly posted on Facebook and how they contributed to the Delhi riots. By respondents' own pleadings, the endeavour of compelling Petitioner No.1 to appear before it was in furtherance of the following: (a) examine testimonies relating to Facebook's alleged role in the Delhi riots; (b) examine instances of inaction or inability on the part of the social media platform to enforce its policies against hateful content; (c) seek views of Petitioner No.1 as a representative of Facebook to understand Facebook India's internal policies and their implementation; (d) ascertain the petitioners' views on whether the company's platform has contributed to the Delhi riots and also how these platforms could be used to strengthen unity among the citizens of Delhi in the future., Conscious of the line sought to be adopted by the respondents by referring to cooperative federalism, Mr. Salve contended that the same was misconceived as it arose in a factual matrix where the Union and the State exercise overlapping powers. The exercise of power by the Assembly in question had no connection with any such area of overlap. He argued that cooperative federalism cannot be converted into an independent head of power in addition to the powers conferred by the statute. In this regard reference was made to two judicial pronouncements in K. Lakshminarayan v. Union of India & Anr. and State (NCT of Delhi) v. Union of India., In order to appreciate what is meant by cooperative federalism in the context of what appears to be a continuous judicial battle between the Central Government and the State Government, the Court in State (NCT of Delhi) (2018) encouraged walking hand‑in‑hand even if there are different political dispensations in power. The idea behind the concept of collaborative federalism is negotiation and coordination so as to iron out the differences which may arise between the Union and the State Governments in their respective pursuits of development. The Union Government and the State Governments should endeavour to address the common problems with the intention to arrive at a solution by showing statesmanship, combined action and sincere cooperation. In collaborative federalism, the Union and the State Governments should express their readiness to achieve the common objective and work together for achieving it. In a functional Constitution, the authorities should exhibit sincere concern to avoid any conflict. This concept has to be borne in mind when both intend to rely on the constitutional provision as the source of authority. Both the Centre and the States must work within their spheres and not think of any encroachment. In the context of exercise of authority within their spheres, there should be perception of mature statesmanship so that the constitutionally bestowed responsibilities are shared by them. Such an approach requires continuous and seamless interaction between the Union and the State Governments. This idea of collaborative federalism becomes clearer when we understand the very essence of the special status of the National Capital Territory of Delhi and the power conferred on the Chief Minister and the Council of Ministers on the one hand and the Lieutenant Governor on the other by the Constitution., Thus, Mr. Salve contended that while the Court has touched on the concept of collaborative federalism, it has also simultaneously observed in unequivocal terms that both the Centre and the State have to work within their spheres and not think of any encroachment. It was thus contended that what was sought to be done was clearly an encroachment by relying on the larger principle of cooperative federalism., An important aspect has, once again, been emphasized in K. Lakshminarayan, that the Assembly can seek to exercise power as conferred under the National Capital Territory of Delhi Act, promulgated by Parliament exercising its residuary powers under Entry 74 of List I. In that context it was emphasised that there is a difference between Articles 239A and 239AA of the Constitution. The former relates to the Union Territory of Puducherry, which simply provides purely enabling provisions while the latter contains extensive provisions among which sub‑clause (7) empowers Parliament to legislate and give effect to all the provisions. Mr. Salve assailed the endeavour of the Assembly to clutch at a jurisdiction that is not available., In response to the Court's queries arising from the earlier summons being superseded by the New Summons, the respondents' contention that the aspect of privilege had not arisen, and whether the petitioners could claim to be an unaccountable platform, Mr. Salve contended that the petitioners were ready to comply with any Indian law and had been doing so. What they were not desirous of doing was to be drawn into an aspect of political divide. To emphasise this point he referred to a letter dated 01 September 2020 by the Union Communication Minister alleging inter alia that Facebook India was leading a concerted effort to shrink the space for dialogue for those with a right‑of‑centre ideology. It was submitted that the respondents seem to allege a pro‑Government or a pro‑right bias of Facebook while the Central Government claimed the opposite, the common factor being that both positions were for their respective political reasons by alleging bias against the petitioners albeit from different sides. Mr. Salve's contention was that an Assembly must limit itself to its core function of legislation. Even if it were to summon a witness, this must be in relation to matters that were within its ambit as demarcated by the Court in the judgment of State (NCT of Delhi) v. Union of India. This judgment made it clear that in reference to the Code of Criminal Procedure, 1973, the powers in relation to the entry of public order were conferred on Parliament and consequently denuded from the powers of the Assembly. In that context, even if the widest amplitude was given to the entries, that was with the objective of not restricting the legislative competence of Parliament or the Assembly in a field which they in principle were competent to legislate.
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The State Government and therefore the principle of widest meaning of entries could not result in overlapping powers as that can hardly be conducive to administrative exigencies. That it was so was obvious from the submission of the learned Solicitor General who contended that the doctrine of pith and substance would have to be applied to the reading of the entries while dealing with them to demarcate the Lakshman Rekha for the Parliament and the State Assemblies. In the context of the controversy, it was urged that allowing such wide reading of entries would lead to a slippery slope., In the end, Mister Salve also emphasized the doublespeak between the stand of the counsel for the Assembly and the Committee, which was a telltale sign that the New Summons was only subterfuge to get over the possibility or anticipation of an adverse judicial consideration. The right to remain silent was a virtuous right and in today's noisy times should not be curbed or abrogated., Mister Datar, learned senior counsel for Petitioner No.3, once again, supporting the stand of Mister Salve, urged that any powers or privileges were in turn circumscribed by the legislative competence of the Assembly. Thus, any powers or privileges have to be exercised within the assigned legislative fields. He sought to draw strength from May's Commentary as also the Commentary of Kaul and Shakdher in this context where it was observed in the former that disobedience to the order of a committee made within its authority is a contempt of the House (emphasis supplied). In the latter it was observed that disobedience to the orders of a Committee of the House is treated as a contempt of the House itself, provided the order disobeyed is within the scope of the Committee's authority (emphasis supplied). Learned counsel thereafter turned to the judicial precedents in this regard., He submitted that the powers and privileges are controlled by the basic concepts of the written Constitution which could be exercised within the legislative fields allotted to their jurisdiction by the three lists under the Seventh Schedule, and the legislatures were not competent to travel beyond the lists. It was, thus, contended that if a primary legislation can be struck down for being outside the legislative domain, then a committee cannot be formed to deal with such matters. Thus, it was argued that the respondents could not say that they had the power to go into a roving and fishing inquiry before the Committee relating to all perceived fields based on a belief that the State Assembly deals with the core functions in Delhi. Its legislative competence by various entries should not be read in such an expansive manner as to not be restricted by specific exclusions, at least for the purposes of discussion., Mister Datar then turned to judicial precedents from the United States to analyse the similar federal structure of governance in both India and the United States. The cases dealt with enquiries by Congress. In Watkins v. United States it was observed that no enquiry is an end in itself; it must be related to a legitimate task of Congress. Thus, academic enquiries cannot be undertaken; only what is within the powers of Congress can be enquired into. The power of inquiry of Congress is broad but not unlimited. Such power of enquiry of Congress is limited to its legitimate tasks, which would imply legislative competence in the present case., We may note at this stage that a plea was advanced by Doctor Dhavan that this judgment stood overruled in Barenblatt v. United States and Eastland v. United States Servicemen's Fund. Mister Datar clarified that the aspect he was seeking to rely upon was not only not overruled, but there was confirmation on the limits on the power of inquiry of Congress as laid down in Watkins. He next referred to the judgment in Howard Jarvis Taxpayers Association v. Padilla for the observation that the legislature may not use its powers to defeat or materially impair the exercise of its fellow branches' constitutional functions, nor intrude upon a core zone of another branch's authority. The investigative powers may not be used to trench upon matters falling outside the legislative purview and the investigative power permits inquiry only into those subjects in reference to which the legislature has power to act., In the context of the requirement of reading entries widely, Mister Datar contended that the power to legislate conferred by Article 239AA(3)(a) was in respect of matters in List II except Entries 1, 2 and 18. If the principle of reading entries widely is to be applied in this context, even the excluded entries have to be read widely as conferring the power on Parliament. It could not be said that entries conferring power on the State Assembly were to be read widely while at the same time a restrictive meaning was to be given to entries under which powers have been specifically excluded. The phraseology entails that the entries encompass anything with a nexus to public order and/or the police. The powers with respect to such activities thus squarely lie with Parliament. Once again, a judicial view already taken was clear and explicit, i.e., that the Assembly did not have any legislative or executive power over the police and its functions. Thus, exempted entries would have to be read in substance and not hyper‑technically, and Article 239AA would have to be read contextually as also widely to include all ancillary and subsidiary matters. This in turn denuded the Assembly and the Committee of the powers to legislate or enquire into that aspect. As such, what has been specifically denied to the Assembly could not be achieved through Committees under the garb of peace and harmony. The Assembly had no jurisdiction to address violence and communal riots, if Entries 1 and 2 of List II are interpreted as submitted. In the end there could be no power even to investigate these matters., The Committee, it was argued, was a creation of the Assembly and could not have a larger jurisdiction than the Assembly itself. The bulletin issued on 02.03.2020 suggested that the Committee was formed to deal with matters falling in Entries 1 and 2 of List II in view of the recent communal riots and violence. This made it clear that the Committee was meant to deal with the violence and disturbance caused to public order during the riots. The expression public order has to be interpreted broadly and would encompass communal peace and harmony. The summons issued by the Committee related to the law and order situation of Delhi for which the Assembly had no power to investigate or formulate law. If there was no competence with regard to such matters, the summons in that context would be without jurisdiction and thus void ab initio., Since cooperative federalism was propagated as the basis to justify the constitutionality of the actions of the respondents, it was submitted that the same would not amount to a licence to place reliance on Entries 1 and 2 of List III to sidestep the explicit exclusion in Article 239AA(3)(a) of the Constitution. The relevant entries are as follows: 1. Criminal law, including all matters included in the Indian Penal Code at the commencement of this Constitution but excluding offences against laws with respect to any of the matters specified in List I or List II and excluding the use of naval, military or air forces or any other armed forces of the Union in aid of the civil power. 2. Criminal procedure, including all matters included in the Code of Criminal Procedure at the commencement of this Constitution. The matters relating to criminal law would not include power to legislate on issues pertaining to public order and communal peace and harmony as the same is traceable to public order, if the latter is interpreted broadly. Mister Datar further argued that Entry 45 of List III, which relates to inquiries, cannot enable the Assembly to inquire into public order, police functions or communications. The power of inquiry has to be directly related to the legitimate subjects over which the Assembly has powers to legislate. To buttress his argument on the concept of collaborative federalism, Mister Datar relied upon the observations of this Court in State (NCT of Delhi) v. Union of India which held that both the Centre and the States must work within their spheres and not think of any encroachment., Mister Datar argued that obviously the Central Government and the State Government had different perceptions as to what transpired in Delhi and it can hardly be disputed that it was a law and order issue arising from communal riots. This was not an aspect that either the Assembly or any of its committees could deal with. If the Assembly cannot legislate on a subject, it cannot explore the same under an executive investigation. The mere reluctance to participate could not be threatened with a breach of privilege and the subject matter being dealt with by the Committee was outside the purview and power of the Assembly. Mister Datar emphasized that the role of Facebook was that of an intermediary and thus the relevant regulatory mechanism was under the Information Technology Act. He contended that there was no jurisdiction to examine Facebook, as its operations were covered by Entry 31, List I, under other forms of communication. Since Parliament has overriding power to legislate with respect to entries in List I under Article 83 of the Constitution, the Assembly could not intervene in matters relating to intermediaries or other forms of communication. In addition, it was urged that this special entry of communication overrides the general entries of inquiries and criminal law (List III), which the Delhi Assembly had attempted to rely on. Learned counsel next turned to Section 79 of the Information Technology Act which deals with exemption from liability of intermediaries in certain cases., Mister Datar finally urged that an intermediary like Facebook has no control over the content hosted on it and is prohibited from knowing the substance of the content on its platform or exercising any control over the same except as prescribed by law. It was submitted that an intermediary cannot be held liable for any third‑party data or information made available or hosted by them. Facebook is simply a platform where messages are transferred from one person to another. WhatsApp, Signal, Telegram are even end‑to‑end encrypted. These are intermediaries who are not liable for third‑party information hosted on them. The only obligation which Section 79 of the Information Technology Act imposes is due diligence on the part of intermediaries, as Facebook did not initiate the transmissions nor control the same. Hence, they cannot be held liable and any action taken against an intermediary has to be in the manner prescribed by the Act. It was stated that the New Summons did not change the position in any way as the content of the inquiry was the same., Doctor Singhvi, seeking to rebut the arguments canvassed on behalf of the petitioners, emphasized that it is not appropriate to equate the expression peace and harmony with law and order as the former is a much broader term. In any case, Legislative Assemblies have wide inquisitorial powers, i.e., areas which are otherwise not available to a legislature for legislative interference are still available to a committee of the legislature. The relevant paragraph from Kalpana Mehta reads as follows: Various committees of both Rajya Sabha and Lok Sabha are entrusted with enormous duties and responsibilities in reference to the functions of Parliament. Maitland in 'Constitutional History of England' while referring to the committees of the Houses of British Parliament noticed the functions of the committees in the following words: Then again by means of committees the Houses now exercise what we may call an inquisitorial power. If anything is going wrong in public affairs a committee may be appointed to investigate the matter; witnesses can be summoned to give evidence on oath, and if they will not testify they can be committed for contempt. All manner of subjects concerning the public have of late been investigated by parliamentary commissions; thus information is obtained which may be used as a basis for legislation or for the recommendation of administrative reforms (emphasis supplied). This was stated to be in furtherance of the legislative competence of an Assembly and in exercise of the Committee's inquisitorial powers to make the best possible recommendations., Doctor Singhvi contended that selective extracts of the press conference cannot be the basis for giving a different meaning to the proceedings than the Terms of Reference. He clarified that the scope of the Committee was purely recommendatory, including making positive recommendations to ensure peace and harmony in the National Capital Territory of Delhi in the future, which relates to various heads of competence of the Assembly in List II and List III of the Seventh Schedule. No federal unit can function in the absence of peace and harmony amongst various groups of people who reside, live and work in that federal unit. Thus, the domain of peace and harmony in the National Capital Territory of Delhi is something very broad and inherent to the legislature of the federal unit and encompasses many areas of competence of the Assembly both in List II and List III. It was further contended that fraternity is a preambular value which, like equality and liberty, imbues the functioning of the entire Constitution. He referred to Entry 39 of List II relating to powers, privileges and immunities of the Legislative Assembly to emphasise that enforcement of attendance of persons for giving evidence or producing documents before committees of the Legislature of the State was an intrinsic part of its functions. This coupled with Entry 45 of List III dealing with inquiries and statistics for the purposes of any of the matters specified in List II or List III would completely cover the aspects sought to be gone into by the Committee. Doctor Singhvi, in support of the manner in which such committees can function and their remit, referred to three judicial pronouncements from the United States: Eastland v. United States Servicemen's Fund, Watkins v. United States and Barenblatt v. United States. The common thread which permeates these judgments is that the power to investigate is inherent in the power to make law as a legislative body cannot legislate wisely or effectively in the absence of information with respect to the conditions that the legislation is intended to affect or change. In that context, the issuance of subpoenas could be exercised by a committee acting on behalf of the House. It was thus said: To conclude that the power of inquiry is other than an integral part of the legislative process would be a miserly reading of the Speech or Debate Clause is derogation of the integrity of the legislature., Such an inquiry was not in turn circumscribed by what the end result would be: nor is the legitimacy of a congressional inquiry to be defined by what it produces. Such investigative function was akin to any research with the possibility of researchers ending up in some blind alleys and into non‑productive enterprises; as to be a valid legislative inquiry there need be no predictable end result. On the duty of a citizen to cooperate with United States Congress in an effort to obtain the facts, it was held to be an unremitting obligation to respond to subpoenas, to respect the dignity of Congress and its committees and to testify fully with respect to matters within the province of proper investigation. On an aspect of teaching which is pursued in educational institutions, it was observed that inquiries cannot be made into a constitutional protection against the freedom to teach. But this would not preclude Congress from interrogating a witness merely because he is a teacher. Thus, an educational institution is not a constitutional sanctuary from inquiry into matters that may otherwise be within the constitutional legislative domain merely for the reason that inquiry is made of someone within its walls., Doctor Singhvi submitted that it was inappropriate for the petitioners to link the competence to discuss the subject matter with the powers to exercise privilege. The Terms of Reference that define the scope and competence had not been challenged; therefore it was not appropriate for the petitioners to invite a view of the Supreme Court of India on the competence of the Committee. The argument about excluded entries was labeled as a smokescreen. In the context of the claim of exclusion arising from entries it was submitted that any such exclusion would have to be narrowly construed. Doctor Dhavan adopted the same line of argument as Doctor Singhvi, referring to the same judicial pronouncements. He submitted that the holding in Watkins was based on Chief Justice Warren's exclamatory resentment of McCarthyism in the 1950s and has since been criticized as unnecessarily limiting the powers of Congress. On the same lines were the subsequent judgments of the Supreme Court which settled major issues of congressional authorisation and relevance of the First Amendment. The view taken thereafter by the United States Supreme Court reinforces powers of the Committee rather than undermines them. The essence of American law, he contended, is that when you are summoned, you must appear but can plead the Fifth Amendment in not answering questions., Doctor Dhavan proceeded with his arguments on a larger canvas that the Delhi Government was empowered to cover every aspect of its governance, and peace and harmony could not be equated solely with police functions and public order. The argument can be said to be on four different planes: (i) harmonious interpretation of entries; (ii) the ragbag approach; (iii) wide scope of inquiries under Entry 45 of List III; and (iv) executive power must be interpreted widely. The emphasis of Doctor Dhavan's argument was that communal harmony is an important part of Delhi's governance that goes beyond the limited remit of police functions and public order. The incident of February 2020 in Delhi was stated to prove that in addition to affecting public order, communal disharmony has a harmful effect on trade and commerce, transportation, education and governance generally. Considering the implication of these domains, it was contended that it would be deeply harmful if the police were the sole custodians of peace and harmony. The initial course of action requires people to be educated and that governing authorities liaise with them in order to calm tensions. To agree to the submissions of the petitioners would be to permit the argument that there was none in the Delhi Government who could address the issue of peace and harmony. On a larger canvas, the message that would permeate to non‑members would be that they could get away by not appearing before the Legislative Assemblies, as the latter had no power to compel their appearance. It was submitted that this would make the entire system of Committee proceedings farcical. The need for harmonious construction required that legislative entries must be given the widest amplitude and, thus, he submitted that it was the duty of the Supreme Court of India to reconcile entries that may appear to overlap or may be in direct conflict. Doctor Dhavan sought to introduce the concept of ragbag legislation, submitting that this was an expression used by the Indian Supreme Court in income tax jurisprudence. The ragbag approach suggested that legislative and executive powers need not be traced to only one entry, but may instead be traced to multiple entries in the relevant list in the Seventh Schedule. Thus, this perspective of multiple entries may empower the Committee to consider peace and harmony in areas that were directly applicable like education, and others that applied indirectly like trade and commerce. Peace and harmony was a concept much beyond public order and police, and illustrations of the same were given from List II and List III., List II – State List (relevant portions): 5. Local government, that is to say, the constitution and powers of municipal corporations, improvement trusts, district boards, mining settlement authorities and other local authorities for the purpose of local self‑government or village administration. 6. Public health and sanitation; hospitals and dispensaries. 7. Pilgrimages, other than pilgrimages to places outside India. 10. Burials and burial grounds; cremations and cremation grounds. 12. Libraries, museums and other similar institutions controlled or financed by the State; ancient and historical monuments and records other than those declared by or under law made by Parliament to be of national importance. 13. Communications, that is to say, roads, bridges, ferries, and other means of communication not specified in List I; municipal tramways; ropeways; inland waterways and traffic thereon subject to the provisions of List I and List III with regard to such waterways; vehicles other than mechanically propelled vehicles. 17. Water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power subject to the provisions of entry 56 of List I. 22. Courts of wards subject to the provisions of entry 34 of List I; encumbered and attached estates. 24. Industries subject to the provisions of entries 7 and 52 of List I. 26. Trade and commerce within the State subject to the provisions of entry 33 of List III. 27. Production, supply and distribution of goods subject to the provisions of entry 33 of List III. 28. Markets and fairs. 32. Incorporation, regulation and winding up of corporations, other than those specified in List I, and universities; unincorporated trading, literary, scientific, religious and other societies and associations; co‑operative societies. 35. Works, lands and buildings vested in or in the possession of the State. 37. Elections to the Legislature of the State subject to the provisions of any law made by Parliament. 39. Powers, privileges and immunities of the Legislative Assembly and of the members and the committees thereof, and, if there is a Legislative Council, of that Council and of the members and the committees thereof; enforcement of attendance of persons for giving evidence or producing documents before committees of the Legislature of the State. 65. Jurisdiction and powers of all courts, except the Supreme Court of India, with respect to any of the matters in this List., List III – Concurrent List (relevant portions): 1. Criminal law, including all matters included in the Indian Penal Code at the commencement of this Constitution but excluding offences against laws with respect to any of the matters specified in List I or List II and excluding the use of naval, military or air forces or any other armed forces of the Union in aid of the civil power. 3. Preventive detention for reasons connected with the security of a State, the maintenance of public order, or the maintenance of supplies and services essential to the community; persons subjected to such detention. 8. Actionable wrongs. 12. Evidence and oaths; recognition of laws, public acts and records, and judicial proceedings. 15. Vagrancy; nomadic and migratory tribes. 16. Lunacy and mental deficiency, including places for the reception or treatment of lunatics and mental defectives. 20. Economic and social planning. 23. Social security and social insurance; employment and unemployment. 25. Education, including technical education, medical education and universities, subject to the provisions of entries 63, 64, 65 and 66 of List I; vocational and technical training of labour. 28. Charities and charitable institutions, charitable and religious endowments and religious institutions. 33. Trade and commerce in, and the production, supply and distribution of, (a) the products of any industry where the control of such industry by the Union is declared by Parliament by law to be expedient in the public interest, and imported goods of the same kind as such products; (b) foodstuffs, including edible oilseeds and oils; (c) cattle fodder, including oilcakes and other concentrates; (d) raw cotton, whether ginned or unginned, and cotton seed; (e) raw jute. 38. Electricity. 39. Newspapers, books and printing presses. 40. Archaeological sites and remains other than those declared by or under law made by Parliament to be of national importance. 45. Inquiries and statistics for the purposes of any of the matters specified in List II or List III., Doctor Dhavan further submitted that the constitutional obligation to take preventive action to ensure non‑discrimination provided for the Government's duty to examine and recommend action in respect of peace and harmony as also to protect religion, cultural rights and dignity of individuals as envisaged in various constitutional provisions, i.e., Articles 14, 15, 16, 17, 21, 25 to 30, 39A, 39(b), 40, 41, 46 and 47. These provisions are an amalgam of fundamental rights and directive principles of state policy. Considerable emphasis was placed by Doctor Dhavan on Entry 45 in List III, which is a self‑standing entry that has been given the widest amplitude by this Court. This entry deals with the executive power to make committees of inquiry. In that context it has been observed that these inquiries would encompass any matter enumerated in any of the Lists and would not be confined to those matters as mere heads of legislative topics extending the inquiries into collateral matters. Further referring to Entry 39 of List II, Doctor Dhavan urged that this entry was wide enough from a bare reading to include the power to summon non‑members having used the expression of enforcement of attendance of persons., The thread which permeated Doctor Dhavan's arguments was that the task of governance is much wider than merely drafting legislation and executing it. Executive power would collapse if it were reduced to simply executing the laws enacted by the Legislature and thus the Supreme Court of India had explained that executive power without law had to be construed widely. After having dealt with the four aspects referred to aforesaid, Doctor Dhavan sought to respond to Mister Salve's argument of the legislative domain being occupied by the Information Technology Act. It was Doctor Dhavan's submission that the Information Technology Act was an example of cooperative federalism as the Act empowered both the State and the Centre in terms of the definition of appropriate government in Section 2(e). Thus, provisions such as Section 6 and Section 69 of the Information Technology Act could refer to either the Centre or the State and the legislative domain could not be said to be exclusively occupied by the Centre. This is more so in the context of a mere summons that required the petitioner's appearance without reaching the stage at which punitive action may be considered. The Committee was submitted not to be engaged in any inquisitorial exercise but was only limited to aid in the spirit of cooperative federalism. Cooperative federalism was contended not to be a source of power but rather a part of the principles that underlie the Constitution. It was a method of communication that makes federalism more effective requiring both Centre and State to work together to address common problems. Thus, the State could not exist without collaborative or cooperative federalism. This was stated to be of even greater significance in light of the tug of war between the Centre and the State in respect of the unique position of the Delhi Legislative Assembly. As such, peace and harmony issues ought to be resolved by a coordinated effort. He did, of course, concede that the history of two governments was testament to a tussle which was closer to being competitive rather than collaborative. Doctor Dhavan, thus, concluded his arguments by submitting on this aspect that: (a) it was not his contention that conventions and broad concepts are sources of power; (b) underlying principles, however, are fundamental to both interpretation of the Constitution and powers exercised through the Government or their legislatures; (c) a recommendatory committee has a duty to inform the Central Government of the problems it encounters so that organs of Government can act in furtherance of this principle of cooperative pragmatic federalism; (d) the Committee by itself did not claim the power to punish the breach though it does possess the power to summon without penal consequences.
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It could at best make a recommendation which would have to be examined by the House through the process of a privileges committee. This was a routine part of every summon, only indicative of the power of the Parliament or Assembly. Mister Tushar Mehta, learned Solicitor General sought to advance submissions substantially on this aspect as there was a conflict in the stands taken by the State and the Central Government on this issue. As noticed earlier while on the one hand he was with the State Government on the issue of the right to summon per se, a difference arose on account of his argument that in the given factual situation, the power to summon vested solely with the Central Government. Mister Mehta referred to Article 212 of the Constitution, which reads as under: Article 212. Courts not to inquire into proceedings of the Legislature. (1) The validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure. (2) No officer or member of the Legislature of a State in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers., It was his submission that proper effect should be given to the above provision and the Supreme Court of India did not really have the power to deal with the functioning or internal administration of the Parliament or Assemblies and the committees thereof. There was, however, a narrow scope of judicial review permitted in the present case as the person involved was not a member of the House. The enquiry being ultra vires the powers conferred on the Assembly, he contended that the subjects specifically excluded by the Constitution could not be surreptitiously brought within the purview of the Assembly by categorising the issue as peace and harmony. It was intrinsically a law and order issue, which was an occupied field and also an excluded field so far as the Assembly was concerned., While accepting that privilege was necessarily connected with legislative power, the same (if the aspect so arose) would have to be considered in the context of legislative competence. The plenary powers of the legislature were circumscribed by the written Constitution which set out the legislative fields allotted to each of their jurisdictions by the three Lists in the Seventh Schedule putting an embargo on the Legislatures to travel beyond the entries in their respective lists., Learned Solicitor General sought to emphasise the unique case of Delhi with reference to its excluded entries. It was not at par with any other State Assembly. Delhi was the national capital and thus, the law makers had consciously made a provision keeping this larger picture in mind and reserving to the Parliament three entries which would otherwise be available in List II to the State Assemblies. In the absence of legislative competence, it would be a colourable exercise of power to engage in the subject matter. The formation of a peace and harmony committee was stated to be one such colourable exercise of power. This became apparent from the summons issued which explicitly provided that, in effect, the Committee was dealing with law and order and the police. The battle between the Centre and the State qua Delhi which gave rise to the previous judicial pronouncements clarified which of the two had powers qua specific excluded entries. It would be a betrayal of the mandate of these judgments which had upheld the rationale behind exclusion of entries drawing from the unique position of Delhi., The pith and substance argument was sought to be advanced to contend that reliance on entries in List II and List III was not justified if the matter directly related to excluded entries., Learned Solicitor General, while accepting the proposition that entries have to be read widely, submitted that where there is a specific entry dealing with a particular subject, that specific entry would prevail to the exclusion of the general entry. The entries relied upon by the respondents were general in nature, while the entries of law and order and police were specific and thus, must prevail. Executive action was also not permissible for the Assembly as the Central Government had sole jurisdiction even over executive matters relatable to those entries in view of Article 73 of the Constitution. The executive powers were mandated to be co‑terminus with legislative competence and the legislature could not be allowed to intervene through the indirect method of committees and its privilege, thereby overreaching the Constitution., The principle of cooperative and collaborative federalism was not disputed but then it was urged that the summons did not say that the Assembly and the Committee wanted to give any recommendations. This was only a defence and an afterthought. By way of example, Mister Mehta averred that on a defence strategy matter, the Assembly could not be permitted to call the Chief of Defence Staff (CDS). In fact, it was submitted that cooperative or collaborative federalism required the Assembly to function within the confines of the powers conferred on it and not commit an overreach; to read it otherwise would be combative or competitive federalism., On the doctrine of occupied field, it was urged that the subjects which the Committee sought to go into were already occupied by the Parliament. Facebook was an intermediary, and in that regard would be covered under communication, which is Entry 31 of List I. In fact, all three fields of intermediaries, law and order or police were occupied by the Parliament. There was no perceived conflict of entries and the specific omission of Entries 1 and 2 of List II and the presence of Entry 31 of List I clearly indicated which fields were specifically occupied by the Parliament and what has been specifically omitted for the Assembly., It was submitted that the Parliamentary Standing Committee on Information Technology was already in seisin of the aspect of safeguarding citizens' rights and preservation of misuse of social or online news media platforms including special emphasis on women security in the digital space. It was in pursuance thereto that a notice was issued to Petitioner No.1 on 20.08.2020 to provide his views and the said petitioner duly appeared before that Committee on 02.09.2020. There was, thus, no occasion for the Committee to go into this aspect., On the aspect of the Information Technology Act, a field occupied by the Parliament, it was submitted that even rules have been framed thereunder including the ITC Ltd. v. State of Karnataka 1985 Supplementary Supreme Court Reports 476 at paragraphs 17 and 32; Hoechst Pharmaceuticals Ltd. v. State of Bihar (1983) 4 SCC 45 at paragraph 51; Offshore Holdings (P) Ltd. v. Bangalore Development Authority (2011) 3 SCC 139 at paragraph IT (Procedure and Safeguards for Blocking for Access of Information by Public) Rules that provide an elaborate procedure for blocking of information by an online intermediary and their criminal liability for failing to do so. The Information Technology Act has been formulated under Entry 31 of List I, which covers other forms of communication. Thus, in that sense the intermediaries were beyond the competence of the Assembly. Section 69A of the Information Technology Act specifically deals with blocking of content, including hate speech., It was his submission that the legal issues involving law and order, public order, and the corresponding responsibility of online intermediaries to address hate speech on their platforms have already been addressed by the Central Government. The Assembly not having legislative competence cannot also have the competence to examine people and prepare a report. There was no power to give recommendations and the summons did not even clarify that the exercise was for making recommendations., Finally, the learned Solicitor General referred to the case in N. Ravi to contend that the issue in contention, that is, the interplay of fundamental rights and parliamentary privileges, was already pending before a seven‑Judge Bench., Recent Developments: Role of Intermediaries. In COVID-19 times there have been some fast‑paced developments around the world regarding the role and management of intermediaries. In view of the time gap between the date of reserving the judgment and its pronouncement, we consider it appropriate to note these developments over the last four months. The United Kingdom Commons Privileges Committee published a new report on select committee powers on 03.05.2021, looking to strengthen the ability of select committees to call for persons, papers, and records. The background to this is the reluctance, or in some cases even refusal, of individuals to appear before these committees in a number of high‑profile cases. The Privileges Committee has proposed a Parliamentary Committees (Witnesses) Bill, which would introduce new criminal offences relating to refusal to attend a summons or failing to provide information or documents without a reasonable excuse., The House Energy and Commerce Committee of the United States House of Representatives issued a summons to Facebook CEO Mark Zuckerberg, Google CEO Sundar Pichai, and Twitter CEO Jack Dorsey on 25.03.2021, with which they duly complied. The House Committee pointed out false claims about COVID-19 vaccines and the supposed election fraud that had proliferated on social media platforms. The background was the incident at the Capitol post the United States Presidential Election results being declared in 2021. It is of significance to note the comments of the Chairman of the Committee, Frank Pallone, that, \For far too long, big tech has failed to acknowledge the role they have played in fomenting and elevating blatantly false information to its online audiences. Industry self‑regulation has failed.\, The chairmen of two other sub‑committees remarked, \We must begin the work of changing incentives driving social to‑compel‑attendance.\, The divergence of views between Republicans and Democrats was also evident. While the former claimed that conservative viewpoints are maligned on social media platforms, the latter sought action against misinformation and hate speech with special attention to its impact on minority communities including the LGBTQ+ community, the Black community, Asian Americans, and Latin Americans. These developments, to our mind, are apposite to be examined in the context of the argument advanced on behalf of the petitioners that they do not want to appear before the Committee on account of a divided political milieu., In India, since 2020, a Joint Parliamentary Committee has been examining the Personal Data Protection Bill, 2019 in relation to the issues of data protection and security. The Committee summoned telecom operators Jio and Airtel as well as aggregators Ola and Uber in November 2020. Google, PayTM, Facebook, Twitter and Amazon earlier deposed before this Committee and the report of the parliamentary committee is stated to be in its final stages., A significant development has been the notification of The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 on 25.02.2021, a day after the judgment was reserved. These rules introduce a range of due diligence measures to be implemented by intermediaries and lay down a code of ethics for digital news platforms in relation to digital media. These Rules have been assailed before different High Courts across the country including Kerala, Karnataka, Madras and Delhi, and are currently pending consideration., Amendment to the Government of National Capital Territory of Delhi Act, 1991. Yet another significant development in the context of the controversy before us, in the legislative domain, has been the amendment of the GNCTD Act which came into force on 27.04.2021. The amendments are: a) The term Government referred to in any law made by the Delhi Legislative Assembly will mean the Lieutenant Governor. b) The Lieutenant Governor must reserve for the consideration of the President all bills that incidentally cover any matters that fall outside the purview of the powers conferred on the Legislative Assembly. c) Rules made by the Delhi Legislative Assembly to regulate its own procedure and conduct of business in the Assembly must be consistent with the Rules of Procedure and Conduct of Business in the Lok Sabha. d) The Delhi Legislative Assembly will not be entitled to make rules to (i) enable itself or its Committees to consider matters of day‑to‑day administration of the National Capital Territory of Delhi, or (ii) conduct any inquiry in relation to administrative decisions; and any such rules made prior to this amendment will be void., The object of the aforesaid amendments, as per the Statement of Objects and Reasons, is to promote harmonious relations between the legislature and the executive and to define the responsibilities of the elected government and the Lieutenant Governor in accordance with the two National Capital Territory judgments. These amendments have been assailed before the Delhi High Court and are pending consideration., We say that these amendments are significant as they appear to be an offshoot of the continuous tussle between the State Assembly and the Central Government. The present proceedings where such difference of opinion is clearly reflected seem to also be a trigger, possibly in an attempt to control what the Assembly and the Committee intended. However, we are concerned with the situation prevalent at the relevant time and the arguments advanced in that behalf. We have not been called upon to comment on the consequences of these amendments qua the subject matter of the present proceedings, more so when the challenge in respect of the same is pending before the Delhi High Court., We must begin our opinion by noticing at the inception itself the vast and influential role of an intermediary like Facebook. In this modern technological age, it would be too simplistic for the petitioners to contend that they are merely a platform for exchange of ideas without performing any significant role themselves, especially given their manner of functioning and business model. Debate in the free world has shown the concern expressed by governments across the board and the necessity of greater accountability by these intermediaries which have become big business corporations with influence across borders and over millions of people. Facebook today has influence over one third of the population of this planet! In India, Facebook claims to be the most popular social media with 270 million registered users. The width of such access cannot be without responsibility as these platforms have become power centres themselves, having the ability to influence vast sections of opinion. Without undermining the role performed by Facebook in giving a voice to various sections of society across the world, it has to be noted that their platform has also hosted disruptive voices replete with misinformation. These have had a direct impact on vast areas of subject matter which ultimately affect the governance of States. It is this role which has been persuading independent democracies to ensure that these mediums do not become tools of manipulative power structures. These platforms are by no means altruistic in character but rather employ business models that can be highly privacy‑intrusive and have the potential to polarize public debates. To claim that they can sidestep this criticism is a fallacy as they are at the centre of these debates., Facebook as a platform is in the nature of a mass‑circulation media which raises concerns of editorial responsibility over the content circulated through its medium. The width of the reach of published material cannot be understated or minimized. Facebook has acknowledged in its reply that it removed 22.5 million pieces of hate‑speech content in the second quarter of 2020 itself, which shows that it exercises a substantial degree of control over the content that is allowed to be disseminated on its platform. To that extent, a parallel may be drawn with editorial responsibility cast on other mass‑circulation media., The business model of intermediaries like the petitioner being one across countries, they cannot be permitted to take contradictory stands in different jurisdictions. Thus, for example in the United States of America, Facebook projected itself in the category of a publisher, giving it protection under the ambit of the First Amendment of its control over the material disseminated on its platform. This identity has allowed it to justify moderation and removal of content. Conspicuously in India, however, it has chosen to identify itself purely as a social media platform, despite its similar functions and services in the two countries. Thus, dependent on the nature of controversy, Facebook having almost identical reach to populations of different countries seeks to modify its stand depending upon its suitability and convenience., We are afraid we are not inclined to accept the simplistic approach sought to be canvassed by Mister Salve on the role of Facebook. Forceful as it may be, it does not convince us. Developments around the world, as we have noted above, reflect rising concerns across borders. The concern is whether the liberal debate which these platforms profess to encourage has itself become a casualty. We have noticed in the beginning that algorithms, which are sequences of instructions, have human interventions to personalise content and influence opinions as part of the business model. As such, their primary objective is to subserve their business interests. It is first a business and then anything else. As per their own acknowledgement, they would only appear before any committee if it served their commercial and operational interests, as it did when they appeared before the parliamentary committee. But if their business interests are not served, they seek a right to stay away. Such a stand is completely unacceptable to us. Facebook has the power of not simply a hand but a fist, gloved as it may be., We now turn to the incident at hand, that of an unfortunate violent eruption. The need to go into this incident both from a legal and social perspective cannot be belittled. The capital of the country can ill‑afford any repetition of the occurrence and thus, the role of Facebook in this context must be looked into by the powers that be. It is in this background that the Assembly sought to constitute a peace and harmony committee; whether it has the legislative competence or not is an aspect we will deal with under the relevant head. The Assembly being a local legislative and governance body cannot be said to have misconceived or illegitimate concerns. It is not only their concern but their duty to ensure that peace and harmony prevails. However, we may note that the long and repeated battles between the State and the Centre appear to have cast a shadow even over the well‑meaning intent of the Committee to assess peace and harmony as reflected in the Terms of Reference., We may record that the Central Government and the State Government have been unable to see eye to eye on governance issues in Delhi. This has been responsible for a spate of litigation and despite repeated judicial counsel to work in tandem, this endeavour has not been successful. There is little doubt that the constitution of the governance model in Delhi is somewhat unique. This itself flows from Delhi being the capital of the country. Delhi has had a history of having an Assembly replaced by a model of Union Territory governance by Executive Councilors. There were long years of tussle to have a Legislative Assembly with commonality of objectives across the primary political space, but whoever was in governance found it difficult to let go. The model that came into being thus had a hybrid character, giving an expanded role to the Central Government as compared to any other Legislative Assembly. To that extent, there was a diminishing of the federal structure but there appears to have been a consensus on this aspect., The aforesaid arrangement worked well for many years even with different political dispensations in power in the Centre and the State. But the last few years have seen an unfortunate tussle on every aspect with the State Government seeking to exercise powers as any other Assembly and the Central Government unwilling to let them do so. The bone of contention has not only been the three subject matters of which the State was denuded of its powers, i.e., Entries 1, 2 and 18 from List II, but it is almost a daily governance tussle., The political dispensation which is in power in the State has to recognise the constitutional scheme of division of powers in Delhi which circumscribes its ability to work only within those powers. When they got elected, they knew what they were getting elected for, not what they thought should be the division of powers. On the other hand, the Central Government is required to work in tandem, albeit with a different political dispensation. Maturity is required from both sides and we have to reluctantly note the absence of such maturity in this important interrelationship., To work well, the Central Government and the State Government have to walk hand in hand or at least walk side by side for better governance. The failure to do so is really a breach of their respective electoral mandates; the seven Lok Sabha seats are all held by the powers that be in the Central Government but a very different result came in the Assembly elections. This reflects the maturity of the electorate which has chosen to put one dispensation in power in the Centre while choosing another in the State as the roles are divergent. The concerns are different. The two powers unfortunately do not seek to recognise this aspect, and that is the bane of this structure requiring collaboration and concurrence. Unfortunately, it has become an endeavour to score points over the other. Some prior discussion and understanding could easily solve this problem instead of wasting large amounts of judicial time repeatedly arising from the failure of the two dispensations to have a broader outlook. In fact, the current round is, in our view, arising from the petitioners seeking to take advantage of this divergence of view and their inability to see a common path., No governance model requiring such collaboration can work if either of the two sides takes a my‑way or the high‑way approach which both seem to have adopted. We have expressed our view on the contours of the dispute and the facts have already been set out hereinabove. We see no purpose in repeating those facts. We now turn to the four propositions which form the basis of the writ petition (dealt with under three heads) to record our views qua them., The privilege issue arises out of the plea advanced by the petitioners that both the First Impugned Summons dated 10.09.2020 and the Second Impugned Summons dated 18.09.2020 were to summon Petitioner No.1 or a duly authorized representative of Petitioner No.2 respectively with a threat of privilege. This argument was coupled with a plea that such power of privilege cannot extend to compel an individual, who is not a member of the House, into giving evidence or opinion that they are not inclined to state., We may note the elaborate arguments addressed by Mister Salve, based on a premise that privilege power is really a special right enjoyed as a shield in order to facilitate the working of the Assembly. It is not a sword for assertion of power. It was argued that the constitutional schemes of the United Kingdom and of India, a republic, are different and thus, the privilege powers in the latter must be strictly confined to legislative functions. Only if the integrity of the legislative functions is impaired, either by a member or by non‑members, would the occasion arise for exercise of such power., In fact, Mister Salve sought to contend that it is time that exercise of privilege power is codified, and to that extent an intent was expressed by the Constitution makers in sub‑clause (3) of Article 194. The relevant portion states that such privileges shall be such as may from time to time be defined by the Legislature by law, and thus, the submission was that this clause operated for a period until privilege powers were so defined. Mister Salve sought to persuade us to either lay down the guiding principles or at least nudge the Parliament or Legislature to do so. We have already noticed that this is an aspect seriously disputed by all the counsel for the respondents., We may notice in the aforesaid context that the wordings of Article 194(3) are unambiguous and clear, and thus do not require us to give our own twist or interpretation to them. These are not wordings of a statute, but of the primary document, the Constitution. The powers, privileges and immunities of a House of the State Legislature as well as its committees have been clearly defined as those of the House and all members and committees thereof before the coming into force of Section 26 of the Constitution Forty‑fourth Amendment Act, 1978. There was no timeline provided for codification of powers, privileges and immunities of a House. The Constitution has given leeway to the Legislature to define the same from time to time, but there was no compulsion. If the Legislature in its wisdom is of the opinion that it needs to be so done, it will do so. Is it for the Supreme Court of India to nudge them in that direction? Our answer would be in the negative., We say so as this is itself a debatable issue. There is a divergence of views even amongst constitutional experts whether full play must be given to the powers, privileges, and immunities of legislative bodies, as originally defined in the Constitution, or whether it should be restricted. Such opinion would have to be debated before the Parliament or Legislature of the State to come to a conclusion, one way or the other. It is not even a subject matter where it could be said that any one opinion must prevail, or a nudge must be given by this Court, or a recommendation must be made for consideration by the legislative body. That Scotland and Wales have considered it appropriate to have their own enactments in this context is a deliberate legislative exercise by those bodies. There is no uniformity across the world in this regard., The notion of individual constitutional rights and the right to privacy is sought to be expanded by the petitioners to encompass the right of refusal even to appear in pursuance of the summons. The debates across democratic policy, including some of the developments recorded by us, show a turn towards recognising the importance of an element of compulsion, if so required, for deposition or opinions relating to the present subject matter. This is more so in the context of monolithic business models having vast financial and technical powers at their disposal. As the Supreme Court of India, we are not inclined to step into it., It is not disputed that committee proceedings cannot be equated to proceedings before a court of law. No doubt these powers have to work in the context of the business of each House, and no House can be a knight in shining armour to correct issues in respect of which it has no legislative power. Yet, it would be a monumental tragedy to conclude that the legislature is restricted to the function of enacting laws. The role of the legislature is sought to be diminished by such an argument. The legislature debates many aspects, and at times records a sense of the House. This is not unusual or without precedent.
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The judgment in Amarinder Singh is of little assistance to the petitioner as that was a case of an executive act of exemption of land, and in no way obstructed or threatened the integrity of the legislative proceedings. The facts of each case are important and propositions of law must apply in the context of the facts., Once we recognize the wider array of functions performed by an elected Parliament or Assembly, not confined to only enacting laws, any Lord Denning's observations as noted in State of Karnataka v. Union of India give rise to an issue of parliamentary privilege when there is obstruction to this wider role., There is little quibble with the proposition recognized in the Special Reference No.1/1964 that there is a distinction between exercise of legislative privileges and ordinary legislative functions. A similar line of reasoning has been expressed in Justice (Retired) Markandey Katju v. Lok Sabha and Another, when the hackles of the Parliamentarians were raised on account of some utterances by Justice (Retired) Markandey Katju. We, however, fail to appreciate the argument that no non‑member could be summoned if they had not intruded on the functioning of the Assembly; or that the non‑participation of the petitioner would not have adverse consequences as it did not disrupt the functioning of the Committee. The petitioners, with their expanded role as an intermediary, can hardly contend that they have an exceptional privilege to abstain from appearing before a committee duly constituted by the Assembly., We really do not have any quibble with the propositions advanced by Mister Salve that there can be judicial scrutiny of an endeavour to exercise the power of privilege, which inherently suffers from lack of jurisdiction, if illegal or unconstitutional. The issue, however, is whether the situation has at all arisen meriting scrutiny by the Supreme Court of India, which in turn has to be preceded by initiation of the privilege proceedings, an aspect emphasised by learned counsel for the Assembly as well as the Committee., In the factual matrix, only a summons has been issued for appearance before the Committee. The question of any privilege power being exercised is yet far away. It has been rightly pointed out by the learned counsels for the respondents that even if there was any breach of privilege recorded by the Committee, the Committee would in turn have to make a recommendation to the Assembly. The Assembly would then consider whether it is a fit case to exercise the power of breach of privilege. In many cases, the Assembly may decide that it is not worthwhile to do so, even if the Committee were to prima facie opine so. The exercise by the Assembly is further dependent on the opinion of the Privileges Committee. Thus, there are various tiers of scrutiny before there is culmination of the exercise of power of privilege. None of those eventualities have arisen in the present case. This case is a preventive endeavour by the petitioner to preclude the respondents from even considering the aspect of privilege by seeking the Supreme Court of India's intervention at a pre‑threshold stage, only on the premise of the absence of legislative power. We will consider the aspect of absence of legislative power as the last aspect on the questions framed, but we cannot accept the fetters Mister Salve seeks to place on the Assembly and the Committee at the threshold. The respondents argue that recording the consequences of breach of privilege in a notice to appear is routine and intended to make the noticee conscious of the consequences; that does not mean that an action for privilege has been triggered at the outset., We would like to turn to the importance of the working of committees; if there is no power to compel attendance, the working of these committees would be badly impaired., The committees constituted by legislative bodies like the Assemblies for the States and Parliament for the Union perform a key role in the functioning and the working of the Houses. It is often said that the real work is done in these committees, away from the din of the Parliament. These committees witness a more vociferous reflection of divergent views, slightly away from public gaze, and provide a more reasonable and applied discussion. This aspect is recognised worldwide in the functioning of such committees. They have the capability to undertake wide‑scale consultative processes, engage in dialogue, and build consensus through intelligent deliberations. Such an exercise is intrinsic to the legislative process where public policies require detailed studies and concentration. The committees undertake deliberations and provide recommendations as precursors to legislative activities, and the effective working of committees is a prelude to the core working of the Assemblies., The committees are an extension of the legislature itself and do informed work. Their significance has been exhaustively dealt with in Kalpana Mehta. United States Representative James Shannon's words were noted with approval in the judgment, recognising a global trend to rely on committees to conduct the work of parliament for efficiency. It is not possible for us to accept the petitioners' contention to create an artificial division between Assemblies' core essential and non‑essential functions with restrictive clauses on committee deliberations. Such water‑tight compartmentalisation is not advisable. Unless the committee embarks on a course completely devoid of its functional mandate specified by the Assembly, or the Assembly itself lacks jurisdiction to deal with the subject matter, the widest amplitude must be given to the functioning of these committees. The parliamentary committee system is a creative way for parliaments to perform their basic functions and the same principle applies even if it extends beyond their legislative domain, because they cannot make valid legislative recommendations without competence over the subject matter. However, they may debate aspects that reflect the sense of the House if adopted by the House., Walter Bagehot in his seminal work The English Constitution elucidated five significant functions of the House – elective, expressive, teaching, informing and legislative. The legislative function is a broad umbrella under which multiple responsibilities and tasks are carried out in synchronization. The legislature is a democratic nucleus, involving receipt of informed opinions and balancing interests of various stakeholders. Committees are specialised forums; as Mallory states, the flow of public business is so great and complicated that it can only be handled by bodies with technical competence and rational organisation. Doctor Bernard Crick has pointed out that the most important work of central government is conducted not by civil servants or Members of Parliament working individually, but by committees., The inquisitorial role of the committee in the functioning of the House is of great significance. Investigation of a complicated social problem prior to legislation often rests on such legislative committees. This task involves examination of witnesses and is helpful in dealing with matters of special and technical nature, providing insight into different aspects and stakeholder views. It cannot be said that the petitioners have no role to play or are outsiders. Intelligent legislative action rests on the power to investigate questions of public importance, and issuance of summons is key to this investigative exercise, a role clearly recognised in Kalpana Mehta., We have no hesitation in stating that the petitioners' endeavour to sidestep their appearance before the Committee on the notion of not being an official representative is not acceptable, whether the exercise is for a legislative enactment or for other purposes connected with its legislative domain. After all, a valid legislative inquiry need not have a predictable end result., The Committee is yet to start its work regarding the assistance to be rendered by the petitioners. The petitioners cannot themselves frame and presume possible questions they might face before the Committee and then seek to invoke legislative incompetence. The Committee's work could encompass several fields where organisations and individuals are expected to cooperate., We are also not impressed by the argument that the privilege powers of the Assembly are not constitutional in character but flow only from the Government of National Capital Territory of Delhi Act. The scheme of privilege must be seen in the context of Article 239AA of the Constitution as well as the Government of National Capital Territory of Delhi Act; they are not divorced from each other. Doctor Singhvi rightly referred to clauses 7(a) and 7(b) of Article 239AA to contend that the Act was not an amendment to the Constitution for the purposes of Article 368, notwithstanding any provision that amends or has the effect of amending the Constitution. Rights and privileges are the same as any other House, and questioning the proceedings of a sub‑committee amounts to questioning the proceedings of the Assembly. There has been no exercise of privilege power. However, we have been called upon to deliberate, perhaps unnecessarily, because the petitioners insisted on advancing this argument prematurely. We do not know whether the petitioners' participation would raise any question of privilege, whether the Committee would refer the matter to the Assembly, whether the Assembly would refer it to the Privileges Committee, what the Privileges Committee's opinion would be, or whether the Assembly would embark on a breach of privilege by the petitioners. This is a completely speculative exercise., The Assembly is no different from any other State assembly, except that certain powers in List II of the Seventh Schedule have not been conferred (Entries 1, 2 and 18). As a principle of law, all entries must be read widely; neither the included nor the excluded entries should be read restrictively. This principle will be kept in mind., Doctor Singhvi rightly pointed out that there is no judicial precedent before us where judicial review has been successfully exercised at such a threshold stage. Judicial precedents must be read in their factual matrix. The stage for any possible judicial intervention has not arisen in the present case. Such a threshold intervention was sought and repelled by the Full Bench of the Madras High Court in C. Subramaniam., We have little doubt that a Peace and Harmony Committee may have a much wider amplitude than what is excluded in Entries 1, 2 and 18 of List II. The issue of the extent of legislative power will be dealt with in the third part of our conclusion., We have noted with some disquiet the divergence of views of Doctor Dhavan and Doctor Singhvi on the earlier notice being withdrawn and a subsequent notice being sent. Doctor Dhavan expressed that this was of little significance. We view the Committee as a creation of the Assembly. The notice was withdrawn by the respondents themselves and a fresh notice was issued by the Committee, possibly not under Doctor Dhavan's advice. This conflict of submissions was best avoided and unnecessarily gave rise to another set of arguments by the petitioners. Doctor Dhavan was right in seeking to repel the challenge as based on the anticipatory nature of the proceedings being presumptive and preemptive., Doctor Dhavan submitted that the Committee's threat to recommend criminal action was toothless and the Committee Chairman's statements during the press conference are best dealt with under the third aspect. Greater care is required while framing the Terms of Reference so as not to include matters that counsel may term otiose before this constitutional court. The Chairman's utterances, which could cause petitioners' apprehensions, are best avoided. These two factors appear to be the only reasons the petitioners approached this Court at this stage. Without them, there would have been nothing to argue, and we might have imposed exemplary costs on the petitioners for approaching the Court prematurely. Past illustrations of notices issued to non‑members have already been recorded, and there is no need to repeat them., There is no serious dispute about the competence of the Committee to discuss matters outside the legislative domain of the Assembly, but it was caveated that it could not give rise to a breach of privilege or the right to summon a non‑member. Any plea raised on the exercise of privilege is a preemptive strike in the absence of underlying facts. If such a situation arose, the petitioners could be entitled to assail it, but this Court will not make an advance ruling. We do not accept a distinction between a member and a non‑member in this context; the Assembly's power to summon as sought is lawful. This concludes the aspect of privilege., Mister Salve sought to pit the expanded right of free speech and privacy against privilege, emphasising that the petitioner had a right to remain silent. In the context of the premature plea, his submission was that the mere threat of a breach of privilege infringes both the right to free speech and privacy, and that the threatened invasion could be removed by restraining the potential violator., Mister Salve further pleaded that even if the right of privilege is recognised, it must be narrowly construed to give maximum play to the fundamental rights to privacy and free speech, including the right to remain silent. In view of the original notice being withdrawn, Facebook's plea of not having the option of choosing whom to send is diminished. The interesting part is that Petitioner No.1 did appear before the Parliament., We find it difficult to countenance the plea that the judgment of this Court in M. S. Sharma is diminished by subsequent judicial pronouncements or that powers, privileges and immunities under Articles 105(3) and 194(3) of the Constitution must give way to the more fundamental right of free speech under Article 19(1)(a) in view of the reference pending before the larger Bench in N. Ravi., We have discussed at length the aspect of privilege and the rights which flow from it. Though such proceedings are not taking place in Court, where depositions also occur, the privileges of an elected Legislative Assembly and its committees must be given full play., We would not like to delve deeper into the issue, being conscious that the perceived conflict between M. S. Sharma and Special Reference No.1 of 1964 is pending before a larger Bench in N. Ravi. This reference, pending since 2005, needs priority to settle the legal principles involved, especially given the expanding conflict on such subject matters., We agree with Doctor Singhvi that this aspect is premature. No coercive action has been taken against the petitioner, nor was it intended if the authorised representative simply participated as a witness. The proceedings were broadcast live for transparency. The summons, lawfully issued by an empowered Committee (subject to the legislative competence discussed later), must be answered. The proceedings are not criminal or judicial in nature as there is no accused before the Committee. The Rules framed by the House under Section 33 of the Government of National Capital Territory of Delhi Act, which draws strength from Article 239AA(7) of the Constitution, would be followed. Protection of proceedings under Article 194 includes deposition of members or non‑members., The option to not answer a question before the Committee cannot be seriously disputed if pleaded for good reasons; this aspect would be examined by the Committee as per the Rules., We will not say more on this subject in view of the reference pending in N. Ravi and because the petitioners' plea is premature; nothing has happened beyond their being asked to appear before the Committee., On Legislative Competence: Is the Assembly embarking on a path that is blocked for it? This is the core question of the Assembly's legislative competence, given that its powers and privileges differ from other State Assemblies. Mister Salve argued that once the Assembly lacks competence, the petitioners have a right to stay away, as all proceedings before the Committee would lack constitutional mandate., It is undisputed that the Assembly differs from other State Assemblies because certain subject matters of List II have been specifically excluded and conferred on the Central Government. It is not the case that aspects covered by Entries 1, 2 and 18 in List II can be dealt with by the Assembly or the Committee. Mister Salve's submission can be summarised as a plea that the Assembly and the Committee cannot do indirectly what they cannot do directly., While there is no dispute about reading the Entries as widely as possible, that proposition is in the context of challenging a law for lack of legislative competence. Here we consider the interplay of Entries: whether the Central Government or the Assembly has legislative competence. The widest amplitude must be given even to the three Entries whose competence has been removed from the Assembly and conferred on Parliament., It is also important to note that the business of Facebook is directly covered under a Parliamentary enactment, the Information Technology Act. Petitioners have previously cooperated with proceedings before the Parliamentary Committee., Facebook is an intermediary, as apparent from Section 2(1)(w) of the Information Technology Act. The role of intermediaries is covered by this enactment, including the Central Government's right to issue directions to block public access to any information under Section 69A of the Information Technology Act, a provision clarified by the judgment in Shreya Singhal., The Committee's (and the Assembly's) intent, as argued by Mister Salve, was to encroach on a prohibited domain, evident from the Terms of Reference. Paragraph 4(i) tasks the Committee to consider complaints from the public, social organisations, journalists, etc., about situations that may disturb communal peace and harmony or where riots have occurred, while paragraph 4(vii) requires the Committee to recommend action against persons against whom incriminating evidence is found. The respondents cannot simply claim that recommending such action is unenforceable due to lack of legislative competence. These aspects were sought to be given teeth by threatening privilege in the last paragraph of the Terms of Reference., Mister Salve also relied on the respondents' reply to justify that these were not mere apprehensions. We have set out these aspects as reflected in paragraph 90., Collaborative federalism is an integral part of the Indian Constitution, but it must operate within respective spheres of legislative competence. If the Assembly encroaches on matters in List I, or the Central Government encroaches on the Assembly's powers in List II, it would lead to chaos and a breakdown of the division of powers between the Centre and the State., We are not impressed with Mister Salve's argument that the petitioners cannot be drawn into a perceived political divide. Facebook is a platform where political differences are reflected; they cannot wash their hands of the issue as it is their core business., Similarly, we cannot accept the plea that an Assembly must confine itself to the core function of legislation, as that would unreasonably restrict the role of an elected body., Mister Salve emphasized that the Committee's real intent was to look into issues beyond its scope, expanding its powers due to a political conflict between the Central and State Governments over the riots. This was apparent from the depositions before the Committee and the Chairman's statements in the press conference., We have little doubt that the division of powers between the Centre and the State Assemblies must be mutually respected. A wide reading of Entries cannot encroach upon a subject matter where a specific entry confers power on the other body. This principle guided the Constitution makers, considering India's diversity and federal nature. Whether it is the argument of Mister Salve or Mister Datar, we find them unexceptionable. Illustrations given by Mister Datar of US judicial scrutiny support the proposition that an inquiry must relate to a legitimate task of the legislative body and cannot defeat or impair the functions of other branches nor intrude upon a core zone of another branch's authority., We also view that recourse to Entries 1 and 2 of List III does not include what has been excluded from List II (Entries 1, 2 and 18). Similarly, Entry 45 of List III relating to inquiries does not permit the Assembly or the Committee to inquire into public order or police functions. While a law and order situation arising from communal riots is undisputed, the Assembly cannot deal with law and order or police matters. The moot points are: (a) the scope of the Committee's inquiry; (b) whether any aspect falls within the Assembly's legislative domain; and (c) whether the petitioners' attendance can be legitimately compelled., Both Doctor Singhvi and Doctor Dhavan were conscious of the inherent limitations on the Assembly's powers. Their argument was premised on a broader understanding of the expression \peace and harmony\ rather than restricting it to law and order. However, part of the Terms of Reference was clearly outside the Assembly's powers, a problem compounded by the Chairman's statements in the press conference, which assumed greater significance in the public domain., We do not disagree with Doctor Dhavan's in‑principle submission, drawing on US judicial precedents, that the power to investigate is inherent in the legislative power to make laws. Yet, the issue is whether the Assembly can legislate on the matter. The investigative function of committees may lead researchers into blind alleys, which presupposes the existence of such an alley. While we respect the Committee's right to require petitioners to respond to the summons, we cannot permit proceedings that encroach upon prohibited entries. We are not seeking to control how the Committee proceeds; the Committee has not yet proceeded. However, certain provisions of the Terms of Reference and the press conference have compelled us to say more than simply leaving the matter to the Committee's wisdom., We appreciate Doctor Dhavan's contention that the police cannot be the sole custodian of peace and harmony and that the expression has various connotations. Despite the State Government being denuded of certain powers, governance has many manifestations, and government functions can be realised in different ways. This is especially true here, where the situation was created through an intrinsically law and order issue.
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The moot point is whether the expression peace and harmony can be read in as expanded a manner as Doctor Dhavan seeks to do by relying on a number of entries in List II and List III. We have no doubt that peace and harmony, whether in the National Capital or in a State context, is of great importance. But it would be too much to permit the argument that peace and harmony would impact practically everything and thus gives power under different entries across the three lists. We, however, recognise that the inquisitorial and recommendatory powers can be utilised under the principle of better governance., In the aforesaid conspectus, while keeping in mind Article 212 which restrains courts from inquiring into the proceedings of a legislature, we must also note that a narrow scope of judicial review has always been appreciated and understood. We are confronted with a situation where the two legislative bodies are not on the same page as to what transpired and there is, in a sense, a tug of war on the issue as to who would look into what happened and what ought not to have happened. It is in this context that the learned Solicitor General emphasised the doctrine of pith and substance to locate the power within the entries which have been taken out of List II and thus seeks to block the inquiry by the Committee on aspects which are already covered under the three excluded entries or under the Information Technology Act., The divergent contentions lead us to conclude that the Committee can trace its legitimacy to several entries in List II and List III without encroaching upon the excluded fields of public order or police, and undertake a concerted effort albeit not to the extent canvassed by Doctor Dhavan. Facebook cannot excuse themselves from appearing pursuant to the New Summons issued to them on 03.02.2021. Areas which are not otherwise available to the legislature for its legislative exercise may, however, be legitimately available to a committee for its deliberations. This is so in the context of a broad area of governmental functions. Ultimately, it is the State Government and the State Assembly which has to deal with the ground reality even in the dual power structure in Delhi. If we may say so, it is only the factum of Delhi being the capital and the sensitivities arising therefrom in respect of public order or police which has possibly persuaded these powers to be retained by the Central Government. We cannot say that informed deliberation inter alia on the best measures through which online mass hate and violence in their geographical jurisdiction can be addressed would not be within the Committee's area of competence as it would undermine the very purpose of a vital democratic polity., The unfortunate communal riots between 24th and 29th February, 2020 in various parts of Delhi, led to the death of 53 persons, caused significant damage to public and private property, disruptions to schools, transport, water supply, medical and other civic amenities. The complexity of communal tensions and their wide-ranging ramifications is a matter affecting citizens of Delhi and it cannot be said that the Government of NCT of Delhi cannot look into the causal factors in order to formulate appropriate remedial measures. Appropriate recommendations made by the State Government in this regard could be of significance in the collaborative effort between the Centre and the State to deal with governance issues. It is in that context that the Supreme Court of India had recognised that certain local interests are best addressed by the elected representatives of the concerned State: Sawer's federal principles reiterate this concept of federal balance when he states: Power of the centre is limited, in theory at least, to those matters which concern the nation as a whole. The regions are intended to be as free as possible to pursue their own local interest., We are of the view that because of the pervasive impact of the riots, the Committee could legitimately attend to such grievances encompassing varied elements of public life. Thus, it would be entitled to receive information and deliberate on the same to examine their bearing on peace and harmony without transgressing into any fields reserved for the Union Government in the Seventh Schedule., Let us now turn to the Terms of Reference. In the larger context of what the Committee is supposed to do, reliance was placed on paragraph 4(i), i.e., to consider the factors and situations which have the potential to disturb communal harmony in the National Capital Territory of Delhi and suggest measures to eliminate such factors and deal with such situations with the object of establishing harmony among different religious or linguistic communities or social groups. This is not purely a law and order or policing aspect and has several connotations. It was not necessary at that stage for the Terms of Reference to spell out as to what aspects it would legislate upon (having legislative competence) and on what aspects it would like to consider making recommendations. That would have been a pre‑hearing of the issue., If we turn to paragraph 4(i) of the Terms of Reference, the object was to consider petitions, complaints or reports from the members of the public, social organisations and journalists on the matter in issue where communal riots have occurred. Once again this was intrinsically linked to the larger issue. However, the real troublesome aspect is paragraph 4(vii), which we reproduce, once again, to appreciate the context: (vii) to recommend action against such persons against whom incriminating evidence is found or prima facie case is made out for incitement to violence., Clearly it is not within the remit of the Assembly to recommend action against such persons against whom incriminating evidence is found or prima facie case is made out for incitement of violence. This is an aspect purely governed by policing. It is the function of the police to locate the wrongdoer by investigation and charge them before a competent court and this is what has really given a handle to the petitioners to approach the Supreme Court of India., We have noticed the submissions of Doctor Singhvi and Doctor Dhavan, which really amount to saying that this paragraph is insignificant as no action can be taken. If that be so, then in that sense, this paragraph does not stand even though the petitioners may not have directly assailed it. In order to justify the legislative competence and the remit of the Committee, the respondents have practically given up this paragraph 4(vii) and we record the same and make it clear that this cannot be part of the remit of the Committee., We may say that wiser advice prevailed in issuing the New Summons dated 03.02.2021, which consciously specified the diluted area of inquiry, conscious of the aforesaid limitation and, if we may say, rightly so. What it takes care of is that it is not addressed to Petitioner No.1 directly but instead it calls for the views of an authorised representative of Petitioner No.2, Facebook India. It has rightly used the expression requested and also used the expression could in the context of initiation of proceedings for breach of privilege and has categorically withdrawn the previous notices and summons. On the lighter side, possibly Doctor Singhvi's advice was adhered to., The result of the aforesaid is that fallacies in the notices stand removed., We have already noticed that the statements made by the Chairman of the Committee during the press conference cannot be diluted or brushed aside in a manner as learned counsel for the respondents seek to do. No doubt some part of the press conference refers to the complaints received and statements made by persons deposing before the Committee. But, at the same time, it was stated by the Chairman that the material placed before the Committee had resulted in a preliminary conclusion. Thereafter it was stated that prima facie it seems that Facebook has colluded with vested interests during Delhi riots. It does not rest at this and he further states: Facebook should be treated as a co‑accused and investigated as a co‑accused in Delhi riots investigation. As the issue of Delhi riots is still going in the Supreme Court of India, a supplementary charge sheet should be filed considering Facebook as a co‑accused. The aforesaid statements and conclusions are completely outside the remit of the Committee and should not have been made. That it may give rise to apprehension in the minds of the petitioners can also not be doubted., The further utterances also show that the findings have already given out of the proceedings including three to four significant important aspects including posting by Facebook of incriminating material on the platform in spite of continuous request to remove the same and that Facebook colluded with such web news channels, which has a sole agenda to confuse content and disturb social harmony. The Chairman also states that material has come before them which shows that wherever there is content of harmonious nature, Facebook removes that content while disharmonious content is promoted. A reference has also been made to the race clashes in the United States., Towards the end it is also sought to be conveyed that in view of the incriminating material, the representatives of Facebook would be called upon to satisfy principles of natural justice before conviction. The prima facie view expressed is that Facebook is a co‑accused and hence investigations regarding their role during the Delhi riots should be carried out and after such investigation, a supplementary charge sheet should be filed., If it may be said, it is as if the Committee was convinced that Facebook must be prosecuted, and as if the Committee itself was the prosecutor with a right to direct the filing of a supplementary charge sheet. It was meeting as a formality to give a right of hearing before doing so, i.e., before taking any action., We can only say that such statements are hardly conducive to fair proceedings before the Committee and should have been desisted from. This is especially so as that was not even the legislative mandate, and the Assembly or the Committee had no power to do any of these things., In view of the aforesaid, thus, while giving the widest amplitude in respect of inquiry by a legislative committee, we are constrained to put certain fetters in the given factual scenario otherwise tomorrow the proceedings itself can be claimed to be vitiated., The importance of Committees cannot be over emphasised. The Kalpana Mehta case discusses this issue in some depth. Committees seek to perform the function of holding the Government accountable to implement its policies, and its duties under legislation and the performance of governmental agencies can be the subject matter of reports formulated by these Committees. However, in the context of the present case, we are dealing with a scenario where on a particular subject matter there is no legislative mandate to enact a legislation even if, in a broader sense, an inquiry is made. Thus, the aspect of holding the State Government accountable is not really envisaged as per the Terms of Reference. Rather, it seems as if the Committee seeks to hold certain private players responsible for a law and order scenario, which is within the domain of the Central Government. Therefore, the general principles applicable to Committees would apply with a little difference in the given scenario., We are conscious of the rationale emphasised that the wide jurisdictions of the High Court under Article 226 or of the Supreme Court of India under Article 32 of the Constitution should not normally be exercised in a manner oblivious to the enormous work carried out by the Parliamentary Committees in the field. An Assembly, more so in the nature of Delhi Assembly with its own peculiarities (i.e., the exclusion of certain powers), even if given the widest amplitude and powers which a Committee should have, cannot step on the toes or rather shoes of an entity having exclusive jurisdiction by reason of List I., We cannot lose sight of the repeated brushes which have occurred between the current dispensation in the Central Government and the State Government and the Courts being called upon to define the contours of their powers. Sagacious advice to act in concert appears to have fallen on deaf ears. We are faced with a scenario which is a little different from the normal and, thus, much as we would not like to, some fetters have to be placed qua the exercise sought to be undertaken by the Committee in question. One set of fetters is not required because it has already been conceded that paragraph 4(vii) of the Terms of Reference is otiose and that there will be no endeavour to prosecute. However, another set of fetters become necessary because of the history recorded aforesaid and the significance of the press conference given by the Chairman of the Committee. The subject matter went much further than it ought to have and as a result, we have analysed the press conference in detail to repel the contention on behalf of the respondents that this aspect should not be taken seriously or is more preemptive in nature. We are clearly of the view that it is not so. The Committee cannot have a misconception that it is some kind of a prosecuting agency which can embark on the path of holding people guilty and direct the filing of a supplementary charge sheet against them. We thus opine that this aspect has to be kept in mind by the Committee so as to not vitiate future proceedings and give rise to another challenge. We are of the view that in any eventuality, as speculative as it may be, if the Committee seeks to traverse the path relating to the excluded Entries, i.e., law and order and police, any representative of Facebook who would appear before the Committee would be well within their right to refuse to answer the query and such an approach cannot be taken amiss with possibility of inviting privilege proceedings. It is a delicate balance to follow and we do not seek to give an excuse to the representative of the petitioners to not answer questions and frustrate the proceedings before the Committee qua the petitioners. However, at the same time, we give this very limited protection were the Committee to embark on these prohibited areas. We are quite confident that such an eventuality will not arise, given the important role that the Committee is performing and that it will accept the sagacious advice. So much and not further., We have penned down our views on the issues raised by the petitioners, but in view of the elaborate arguments and length of the judgment, we consider it appropriate to summarise the ratio/directions in the following terms: I. There is no dispute about the right of the Assembly or the Committee to proceed on grounds of breach of privilege per se. II. The power to compel attendance by initiating privilege proceedings is an essential power. III. Members and non‑Members (like the petitioners) can equally be directed to appear before the Committee and depose on oath. IV. In the given facts of the case, the issue of privileges is premature. Having said that, the insertion of paragraph 4(vii) of the Terms of Reference taken along with the press conference of the Chairman of the Committee could legitimately give rise to apprehensions in the mind of the petitioners on account of which a caveat has been made. V. Canvassing a clash between privilege powers and certain fundamental rights is also preemptive in the present case. VI. In any case, the larger issue of privileges vis‑a‑vis the right of free speech, silence, and privacy in the context of Part III of the Constitution is still at large in view of the reference to the larger Bench in N. Ravi. VII. The Assembly admittedly does not have any power to legislate on aspects of law and order and police in view of Entries 1 and 2 of List II in the Seventh Schedule inter alia being excluded. Further, regulation of intermediaries is also subject matter covered by the Information Technology Act. VIII. The Assembly does not only perform the function of legislating; there are many other aspects of governance which can form part of the essential functions of the Legislative Assembly and consequently the Committee. In the larger context, the concept of peace and harmony goes much beyond law and order and police, more so in view of on-the-ground governance being in the hands of the Delhi Government. IX. Paragraph 4(vii) of the Terms of Reference does not survive for any opinion of the Committee. It will not be permissible for the Committee to encroach upon any aspects strictly within the domain of Entries 1 and 2 of List II of the Seventh Schedule. As such, any representative of the petitioners would have the right to not answer questions directly covered by these two fields., That brings us to the end of this saga. The writ petition is accordingly dismissed, subject to terms aforesaid. [Sanjay Kishan Kaul] [Dinesh Maheshwari] [Hrishikesh Roy] New Delhi. July 08, 2021., COVID times have been difficult for everyone. The Judiciary and the Bar are no exception. It has been a contributing factor in there being a period of four months between reserving the judgment and pronouncement of the order, but that is not the only reason., We have noticed the presumptive nature of grievances and the invitation to the Court to opine on the same with undoubtedly a handle being provided by the respondents. The saga of the hearing lasted 26 hours which is a lot of judicial time. Daily time period was recorded. Apart from pleadings, there were written synopses, additional written synopses, rejoinders and replies filed liberally by both parties. The convenience compilations themselves were very voluminous, in contradiction to their very purpose. Our concern is if this is how the proceedings will go on in the future, it will be very difficult to deal with the post COVID period, which is likely to see a surge in the number of cases pending adjudication., What is the way forward? We do believe that there needs to be clarity in the thought process on what is to be addressed before the Court. Counsel must be clear on the contours of their submissions from the very inception of the arguments. This should be submitted as a brief synopsis by both sides and then strictly adhered to. Much as the legal fraternity would not want, restriction of time period for oral submissions is an aspect which must be brought into force. We really doubt whether any judicial forum anywhere in the world would allow such time periods to be taken for oral submissions and these be further supplemented by written synopsis thereafter. Instead of restricting oral arguments it has become a competing arena of who gets to argue for the longest time., We have looked into this aspect to see if there are any international best practices and would like to refer to some of them without a very expansive discussion., Article 6 of the European Convention on Human Rights, while recognising the right of fair trial and public hearing, qualifies it inter alia to be completed within a reasonable time. This is intrinsically linked to administering justice without delays. Delay in judicial proceedings has been the bane of our country and there cannot be a refusal to part ways from old practices especially when they have outlived their purpose. It is the litigants who bear the costs of our complex and prolonged adjudicatory process. We are conscious of the equal responsibility of this side of the bench; it is the need of the hour to write clear and short judgments which the litigant can understand. The Wren & Martin principles of precis writing must be adopted. But then how is this to be achieved if the submissions themselves go on for hours on end with vast amounts of material being placed before the Court; with the expectation that each aspect would be dealt with in detail failing which review applications will be filed (not that they are not filed otherwise!). We are weighed down by judicial precedent. Often a reference is made to the judgment of the Privy Council or the earlier years of the Supreme Court, which saw short and crisp judgments but then, the volume of precedents we face today was not present then. In a technological age like ours, all that is required is to instruct the junior counsel to take out all judgments on a particular point of view and submit it to the Court in a nice spiral binding. On every aspect there may be multiple judgments. In our view if the proposition of law is not doubted by the Court, it does not need a precedent unless asked for. If a question is raised about a legal proposition, the judgment must be relatable to that proposition and not multiple judgments. The other scenario is if the facts of the cited judgments are so apposite to the facts of the case that it could act as a guiding principle. In R. v. Erskine; R. v. Williams a well‑known aphorism of Viscount Falkland in 1641 was noticed that if it is not necessary to refer to a previous decision of the court, it is necessary not to refer to it. Similarly, if it is not necessary to include a previous decision in the bundle of authorities, it is necessary to exclude it. That approach will be rigidly enforced. This forms the basis of the criminal practice directions in the United Kingdom which apply to all criminal matters before the Court of Appeal, Crown Court, and the Magistrates' Court. Criminal practice directions clarify that if a judgment does not refer to a cited case, it is not that the court has not referred to it but rather, that the court was not assisted by it. We adopt the same as we can say no better., The contribution to the development of law can be nurtured by comprehensible precedent. There may be times when the complexity of matters gives rise to complex opinions. But we find that judgments are becoming more complex and verbose only on account of large number of precedents cited and the necessity to deal with them and not merely refer to them as is done in other countries., We have for long discussed case management but seldom is it followed in its true letter and spirit. This may possibly be because of the large volumes of cases but then this is all the more reason for better management., The United States Supreme Court is more restrictive in its time frame not that United Kingdom Courts are far behind. The norms and the traditions take care of the requirement of restrictive time frames to address submissions; which are preceded by the contours of arguments given in the written synopsis and the material sought to be relied upon. We do not doubt that lawyers think on their feet but then given the current milieu, there has to be clarity before the lawyers get on their feet keeping a little leeway in mind for something which may evolve during the arguments., The Supreme Court of India as on 01.05.2021 had 67,898 pending matters. The time spent on routine matters leaves little time to settle legal principles pending before larger Benches that may have an impact down the line on the judicial system. We have a straight example of this with a reference to a larger Bench pending in N. Ravi., Another matter of concern is prolonged interim proceedings. In criminal matters, even bail matters are being argued for hours together and at multiple levels. The position is no different in civil proceedings where considerable time is spent at interim stage when the objective should be only to safeguard the rights of the parties by a short order, and spend the time on the substantive proceedings instead which could bring an end to the dispute rather than on the interim arrangement. In fact, interim orders in civil proceedings are of no precedential value. This is the reason it is said that we have become courts of interim proceedings where final proceedings conclude after ages—only for another round to start in civil proceedings of execution., The purpose of our post script is only to start a discussion among the legal fraternity by bringing to notice the importance of succinctly framed written synopsis in advance, and the same being adhered to in course of oral arguments to be addressed over a limited time period and more crisp, clear and precise judgments so that the common man can understand what is the law being laid down. After all, it is for the common man that the judicial system exists.
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Sri M Veerabhadraiah, learned counsel for the petitioner appeared in person. Counsel submitted that he has objection to the Caveat Petition. Submission is noted. The petitioner is directed to file an affidavit regarding objections to the Caveat Petition. The matter is listed on 11 July 2022., Sri M Veerabhadraiah, learned counsel for the petitioner and Sri Ismail M Musba, learned counsel for the caveator/respondent Number 6 appeared in person. Counsel for the petitioner submitted that an application under Section 151 of the Code of Civil Procedure was filed on 07 July 2022 regarding rejection of the Caveat Petition. Counsel submitted that the same may be placed on record and the contention with regard to the Caveat may be kept open. Submission is noted. The application is placed on record. Emergent notice is issued to respondents 1 to 6., Due to paucity of time, the matters could not be taken up for consideration. The matters are re-listed on 30 March 2023., No party appeared for the petitioner. The matters are listed after the ensuing Summer Vacation 2023., In Writ Petition Number 12336/2022, after verifying the caveat, it is seen that the caveat is filed on behalf of respondent Number 4. Sri Ismail M Musba, learned counsel, submitted that he would also accept notice for respondents Numbers 5 and 6. The registry is directed to show the name of Sri Ismail M Musba, advocate for M/s Chouta Associates, as counsel appearing for respondents Numbers 4 to 6 in the cause list. Two weeks' time is granted to file a statement of objections. The petition is re-listed on 14 June 2023., At the request of the learned counsel for the petitioner, the matters are listed for the next week., At the request of Smt Sanya Malli, learned counsel appearing on behalf of Sri Ismail M Musba, learned counsel for respondent Numbers 4 to 7, the matters are listed on 25 July 2023. The registry is directed to print the name of Sri Madanan Pillai R., CGC appearing for respondent Numbers 1 to 3., Learned counsel for respondent Numbers 4 to 7 submitted that the learned Senior counsel engaged in this matter has some inconvenience. The matters are listed in the week commencing 31 July 2023., Sri M Veerabhadraiah, learned counsel for the petitioner appeared in person. The matters are listed after two weeks., The matter is listed on 09 January 2024 in Preliminary Hearing B Group., The matter is listed on 12 January 2024., The learned counsel for the petitioner was heard in part. To hear the learned counsel for the respondents, the matter is listed on 19 January 2024 at 2.30 p.m., At the request of the petitioner's counsel, the matter is listed on 29 January 2024., Interim Application Number 2/2024 is filed to implead the Director (BC) of the fourth respondent company as proposed respondent Number 7 to be a necessary and proper party for proper adjudication of the case. Learned counsel appearing for respondent Number 6 undertakes to file a power for the impleading applicant. Learned Senior Counsel representing respondent Numbers 4 and 5 submitted that he has no objection to impleading the Director (BC) of the fourth respondent company as proposed respondent Number 7 in the present proceedings. Accordingly, Interim Application Number 2/2024 for impleading is allowed., Interim Application Number 1/2024 is filed for amendment of the writ petition to bring an additional ground and prayer for proper adjudication of the case, after the ground Number t and B, which reads as under: (t). In the final order dated 04 February 2022 referred by the Fifth Respondent at Paragraph Number 2.0 stated as under: '2.0 Director (BC) has examined your representation dated 27 December 2021 to the Show Cause Notice referred at ... and found no new points for reconsideration which may deserve review of the punishment already proposed in the Show Cause Notice. The charges proved against you are grave and serious and call for severe punishment. The order passed by the Director (BC) is as follows:' B. To insert the following additional prayer after prayer Number (b): 'b-1) Issue a writ of certiorari or any other writ or order and quash the dismissal order dated NIL said to be passed by the Sixth respondent Director (BC) of the fourth respondent company, as referred at paragraph 2.0 of the final order dated 04 February 2022 vice Number 209768/FO/HR/A&F issued by the Fifth respondent as per Annexure-A. Consequently declare that the Seventh respondent Director (BC) of the fourth respondent company passed the dismissal order dated NIL which is referred at Paragraph Number 2.0 of the final order dated 04 February 2022 as per Annexure-A is one without any capacity under the scheme of the Certified Standing Order of the fourth respondent company, as per ANN-'B', source of law, authority, jurisdiction, and against the principles of natural justice.' Learned Senior Counsel submitted he has no objections to allow Interim Application Number 1/2024 for amendment by adding the additional ground and prayer. Accordingly, Interim Application Number 1/2024 for amendment is allowed. The petitioner counsel is to amend the cause title and writ petition and file the amended writ petition. The respondents are granted time to file an additional statement of objections, if any, to the amended petition. The matter is listed on 02 February 2024 at 2.30 p.m., Interim Application Number 1/2022 is filed by the petitioner to reject the caveat in Civil Procedure Numbers 1958/2022 and 6282/2022 filed by R.P. Mohan, son of Padmahabha R.V., General Manager (Human Resources), Bengaluru, and the vakalath signed by him in favour of the advocate Sri Ismail M Musba, Enrolment Number 2810/2008, for want of authority and jurisdiction under the scheme of Certified Standing Orders to avoid miscarriage of justice and for proper adjudication and to avoid multiplicity of litigations. The affidavit is sworn by the petitioner Annadurai, son of late Kuppuswamy, stating that R.P. Mohan made a statement in his caveat petition that he is authorized to file this caveat petition and executed vakalath in favour of the advocate to represent him without producing any documentary evidence to show that he has valid authorization in terms of law to caveat petition and execute the vakalath. Objections have been filed by the caveator/respondent to Interim Application Number 1/2022. Learned counsel for the petitioner and learned counsel appearing for the respondent were heard. Learned counsel for the petitioner contended that in the earlier writ petition filed by the petitioner in Writ Petition Number 47448/2017, this High Court of Karnataka on 31 October 2017 held that there was no resolution that the applicant, while presenting the caveat, had been authorized by the company to represent the company before this High Court; the caveat filed is an improper one and the petitioner is not required to furnish a copy of the petition to the caveator for the reasons stated by the learned counsel for the petitioner, and would contend that in the present facts and circumstances also, the caveat filed by the respondent through R.P. Mohan and the counsel is not maintainable. Per contra, learned counsel for the respondent submitted that the respondent has been authorized by the company to represent the company and necessary instruction has been accorded to the respondent-counsel to file vakalath on behalf of the company and as per the Standing Order of Sub-Delegation of Powers under Office Order Number HO/144/2023, the Board of Directors has vested powers of the company in the Chairman Managing Director, authorizing him to further sub-delegate the same vide the aforesaid office order, and various functions and powers have been delegated to various officers of the company. The aforesaid authorization vests with the person occupying the said post at the relevant point of time in exercise of the power vested in them and is produced at Annexure R4 as the company Sub-Delegation of Powers. The objections filed by the caveator are placed on record. The material on record reveals that in Writ Petition Number 47448/2017 preferred by the petitioner, respondent Numbers 3, 4 and 5 were shown as ... (the text continues with details of the earlier caveat and sub-delegation powers)., In light of the aforesaid authorization being vested, the petitioner’s contention that the caveat filed by R.P. Mohan and the authorized advocates has to be rejected is unsustainable and devoid of merit. Accordingly, Interim Application Number 1/2022 is dismissed with a cost of Rs.10,000 payable to the Karnataka State Legal Services Authority within four weeks from today., After passing the order on Interim Application Number 1/2022, when the learned counsel was requested to argue the matter on merits, since the matter was heard in part on the earlier date, he threw the files aghast stating that he wants to appeal against the order passed on Interim Application Number 1/2022. The counsel for the petitioner raised his voice, spoke in a harsh manner and made derogatory remarks against the High Court of Karnataka stating that he is not bothered about the consequences. The High Court of Karnataka, in spite of his rude behaviour on several occasions, ignored his arrogance and accommodated his presence before the High Court of Karnataka., The petitioner’s counsel has been consistently protracting the proceedings by filing several applications, which is evident from the order sheet., Upon consideration of the events that transpired during the proceedings of the instant case, the High Court of Karnataka observes with grave concern the conduct of the petitioner’s counsel, Sri M Veerabhadraiah, which warrants initiation of contempt proceedings suo motu. The High Court of Karnataka notes the following: (i) Misbehavior: Throwing his files ghastly in dismay after rejection of Interim Application 1/2022. (ii) Arrogance: Using singular language towards the Bench with a directive voice and, in spite of the Court’s warning him to mind his behaviour, he mentioned 'least bothered of the consequences' and left the Court in sheer anger throwing the files. (iii) Backtalk: Talking in a loud voice and refusing to argue the matter on merits despite repetitive request from the Court as the matter was argued on merits before hearing Interim Application No. 1/2022. (iv) Violation of Court Rules: Constantly interrupting the Court proceedings while the Court was passing orders., The act and conduct of the advocate tends to undermine the dignity of the High Court of Karnataka and hinders the due course of judicial proceedings or administration of justice. The cumulative acts of the advocate would amount to undermining the dignity and majesty of the High Court of Karnataka apart from interference with the Court’s normal proceedings and procedures., The Registrar (Judicial) of this Court is to take necessary steps to initiate suo motu criminal contempt proceedings against the petitioner’s counsel, Sri M Veerabhadraiah, under the provisions of Section 2(c) of the Contempt of Courts Act, 1971, by placing this order before the Hon’ble Chief Justice for appropriate orders., This Court deems it appropriate to forward a copy of this order to the President, State Bar Council, through the Registrar (Judicial), High Court of Karnataka, Bengaluru., In view of the facts narrated above, this Court opines that the matter be released from part heard.
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id_1545
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District – Patna. Sunil Bhardwaj versus Sunil Kumar, Petitioner(s) versus Deputy Director, Directorate of Enforcement, Patna Zonal Office, Bank Road, Chandpura Place, Patna‑800001, Bihar. Email: edgoi-patna-bih@nic.in. Telephone: 91‑612‑2219444. Appearances: For the Petitioner(s): Mr. Lokesh Kumar Singh, Advocate; Mr. Anshuman Sahani, Advocate. For the Opposite Party(s): Dr. Krishna Nandan Singh, Additional Solicitor General. For the Union of India: Mr. Ankit Kumar Singh, Advocate, Enforcement Directorate; Mr. Prabhat Kumar, Advocate. Date: 06‑02‑2024., The learned counsel for the petitioner and the learned counsel appearing for the Union of India and the Enforcement Directorate were heard., The learned counsel appearing on behalf of the Union of India submits that the case will be argued by the learned Additional Solicitor General of India, Patna High Court., The learned counsel appearing on behalf of the Enforcement Directorate submits that the case will be argued by learned advocate Mr. Manoj Kumar Singh., The learned counsel for the petitioner submits that the present quashing application has been filed seeking quashing of the Enforcement Directorate, Enforcement Case Information Report No. PTZO/37/2022 dated 13‑12‑2022, Patna High Court CR. MISC. No. 4441 of 2024(2) dated 06‑02‑2024, instituted against the petitioner and others for investigating alleged proceeds of crime generated from the alleged supply of liquor into the State of Bihar in violation of the Bihar Excise Prohibition Act, 2016, as amended., The learned counsel for the petitioner raises the issue whether the Enforcement Case Information Report could have been instituted by the Enforcement Directorate with respect to an offence that is not a scheduled offence, or whether invoking Section 120B of the Indian Penal Code would bring any offence within the ambit of a scheduled offence as described in the schedule of the Prevention of Money Laundering Act, 2002, where Section 120B of the Indian Penal Code is also incorporated., The learned counsel for the petitioner submits that the answer is clearly No, because conspiracy would always relate to an offence mentioned in the schedule of the Prevention of Money Laundering Act, 2002 and not to any offence that is not part of the scheduled offences., The learned counsel for the petitioner further submits that the Hon'ble Supreme Court in the case of Pavanadibbur v. Directorate of Enforcement, reported in 2023 INSC 1029, categorically held that an offence punishable under Section 120B of the Indian Penal Code becomes a scheduled offence only if the alleged conspiracy involves committing an offence specifically included in the schedule., The learned counsel for the petitioner therefore submits that any offence committed under the Bihar Excise Prohibition Act, 2016 would not fall within the purview of the Enforcement Directorate, as such offence is not a scheduled offence., The learned counsel for the petitioner states that the present Enforcement Case Information Report has been instituted based on allegations against the petitioner in Kochadhaman Police Station Case No. 152 of 2022 dated 23‑06‑2022, Phulwarisharif Police Station Case No. 1221 of 2022 dated 07‑10‑2022, and other FIRs., The learned counsel for the petitioner further submits that at page 12 of the quashing application, details of the FIRs instituted against the petitioner are given, showing that Bihta Police Station Case No. 425 of 2022 and Kishanganj Police Station Case No. 91 of 2019 have been stayed, and that Amba Police Station Case No. 34 of 2021 has also been stayed by this Court., The learned counsel, in sum, submits that the Enforcement Directorate cannot proceed against the petitioner because the allegations in the FIRs on which the Enforcement Case Information Report is based do not suggest that the petitioner committed any scheduled offence under the Prevention of Money Laundering Act., The learned counsel appearing on behalf of the Union of India and the Enforcement Directorate seeks six weeks' time for filing a counter‑affidavit. The counter‑affidavit will give a paragraph‑wise reply to the pleadings made in the quashing application and will also respond to the submissions of the petitioner based on the judgment of the Hon'ble Supreme Court as recorded above., The case is listed for hearing on 29‑04‑2024., In the meantime, further proceedings in Enforcement Case Information Report No. PTZO/37/2022 dated 13‑12‑2022 shall remain stayed. The stay is granted only with respect to the petitioner.
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id_1546
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Ganesh Shankar Pilane, age 20 years, occupation Student, residing at Sr. No. 20/1, Punyayi Nagar, Warna Building, Flat No. 7/6, Dhaneshwar Colony, opposite K.K. Market, Dhankawadi, Pune (now present at Yerwada Central Prison) is the petitioner. The State of Maharashtra, through Bharati Vidyapeeth Police Station, Pune City, District Pune, under the guardianship of Nagnath Kaddas, age 39 years, self‑employed, residing at Sr. No. 20/1/2, House No. 67, Punyayi Nagar, opposite K.K. Market, Dhankawadi, Pune, is the respondent. Mr. Nitin Gaware Patil represents the petitioner. Mr. Rokade Narayan Gopinath represents Respondent No. 2. Mrs. A.S. Pai, Public Prosecutor for the State, also appears for the respondent State., Rule. The rule is made returnable forthwith. With the consent of learned counsel appearing for the respective parties, the matter is taken up for hearing and disposal at the admission stage., The petitioner is before the Bombay High Court seeking quashment of the First Information Report bearing Crime No. 701/2019 registered with Bharati Vidyapeeth Police Station, Pune on 23 November 2019 for offences punishable under Sections 376, 377, 506 of the Indian Penal Code and also under Sections 4 and 5 of the Protection of Children from Sexual Offences Act, 2012., Perusal of the copy of the First Information Report lodged at the instance of Respondent No. 2, who was a minor at the time of lodging the report, shows that the victim was pursuing her studies in class 12 in a private college whereas the petitioner was pursuing his first year of degree course as an external student. As the petitioner was residing in the same area as Respondent No. 2, they initially had a casual acquaintance which subsequently turned into a friendship. They exchanged phone numbers and had virtual contact on a social media platform. The friendship resulted in a close relationship and in November 2019 the petitioner called Respondent No. 2 to meet him. The allegation states that the petitioner took Respondent No. 2 to an unknown place and, although she resisted, the petitioner overpowered and physically and sexually exploited her. It is further alleged that the petitioner threatened disclosure of the incident, compelling the victim to remain silent. Due to apprehension of defamation in society and family, the victim avoided disclosing the incident to her parents. After some time, because of mental trauma, she disclosed the incident to her grandfather, who then informed the victim’s parents. The victim and her family approached the Bharosa Cell, Pune and subsequently the report was lodged., The investigating agency completed its investigation and filed the charge‑sheet bearing No. 77/2020 before the Special Court, Pune. The charge‑sheet records statements of thirteen witnesses, including the panch witness and the medical officer., An affidavit‑in‑reply is filed on behalf of Respondent No. 2, i.e., the victim herself. The affidavit, filed on 27 January 2022, shows that Respondent No. 2 had attained majority and is 20 years of age. The affidavit states: “We are residing in the same vicinity and, on account of intervention of close friends, respectable persons from society and elders, we have resolved the dispute to live with peace and amity. I want to lead a peaceful life and further concentrate on education and career.” It further states that the deponent and her father filed affidavits on 14 October 2021 before the learned Special Court, Pune, stating that they are not interested in prosecuting the petitioner and have no grievance against him. The deponent and her parents have been apprised of the actual scenario and are not interested in prosecuting the petitioner. The pending criminal prosecution has already damaged the reputation and educational career of the deponent. The protracted trial would result in hardships to the deponent and her family, and therefore the parties have mutually agreed to file the instant petition seeking quashment of the impugned FIR and pending criminal prosecution., Copies of the affidavit‑in‑replies filed by Respondent No. 2 before the District and Sessions Judge in Special Case No. 45/2020 are annexed to the affidavit‑in‑reply., In view of the above‑referred affidavits and the statements made in the petition, it can be safely said that quashing of the FIR and proceedings is sought for by consent of the parties., Mr. Gaware, learned counsel appearing for the petitioner, submitted that although the offences attracted against the petitioner are serious, considering the will and wish expressed by Respondent No. 2 to lead a peaceful life and concentrate on her academic career, the Bombay High Court, by exercising its powers under Section 482 of the Code of Criminal Procedure, can allow the petition so as to secure the ends of justice. He further submitted that the Honourable Supreme Court has consistently held that while exercising the powers under Section 482, the court must consider all necessary factors and that the seriousness of the offences is only one consideration and cannot be the sole criterion for rejecting a prayer for quashment. He placed heavy reliance on the judgment of the Supreme Court in Narinder Singh & Ors. Vs. State of Punjab & Anr and also on the judgment in Taj @ Arjun S/o. Ajay Mishra and Anr Vs. State of Maharashtra. Accordingly, learned counsel prayed for allowing the petition., The Assistant Public Prosecutor appearing for the State, opposing the petition vehemently, submitted that even though the parties might have arrived at a settlement and are seeking quashment by consent, considering the nature of the offences, particularly those punishable under Sections 376 and 377 of the Indian Penal Code together with Sections 4 and 5 of the Protection of Children from Sexual Offences Act, 2012, the petition may not be allowed. It is submitted that the petitioner committed a serious offence and, at the time of the incident, Respondent No. 2 was a minor; therefore, the petitioner sexually exploited a minor girl. The Assistant Public Prosecutor prayed that the petition be dismissed., On considering the rival submissions of learned counsel appearing for the respective parties and after going through the judgments relied upon, in our opinion, the counsel for the petitioner has made out a case for allowing the petition., It is true that a bare perusal of the First Information Report and the material reflected in the charge‑sheet shows that a serious offence is alleged to have been committed by the petitioner. The statements of witnesses and the medical officer also support the case of Respondent No. 2. At the same time, the Bombay High Court cannot lose sight of the fact that the victim has reiterated her free will to pursue her academic career and concentrate on her studies. The affidavit of Respondent No. 2 states that the pendency of the criminal proceedings would be a hurdle to her academic aspirations. It appears that Respondent No. 2 is adopting an approach of leaving behind the baggage of the past and proceeding further in life, concentrating on a positive future. In view of the absence of any objection for quashing of the report and proceedings by Respondent No. 2, it can be safely said that if the prosecution were permitted to continue there is hardly any chance of conviction being recorded against the petitioner and the continuation of such prosecution would be a futile exercise., Mr. Gaware was justified in placing reliance on the recent judgment of the Division Bench of this Court in the matter of Taj @ Arjun Mishra. In that judgment various judgments of the Supreme Court, including the judgment of Narinder Singh, were also considered., It may not be out of place to refer to observations of the Supreme Court in the matter of State of Madhya Pradesh Vs. Laxmi Narayan and Others and Prabatbhai Aahir Vs. State of Gujarat, which are reproduced in the judgment. For ready reference, the observations are as follows: While exercising the power under Section 482 of the Code to quash criminal proceedings in respect of non‑compoundable offences that are private in nature and do not have a serious impact on society, on the ground of settlement/compromise between the victim and the offender, the High Court is required to consider the antecedents of the accused, the conduct of the accused, whether the accused was absconding and why, and how he managed to enter into a compromise with the complainant., Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers; it only recognises and preserves powers which inhere in the High Court. The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non‑compoundable. In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power. The inherent power of the High Court has a wide ambit and must be exercised (i) to secure the ends of justice or (ii) to prevent an abuse of the process of any court. The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute ultimately depends on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated. There is an exception to this principle for economic offences involving the financial and economic well‑being of the state, which have implications beyond a mere dispute between private parties. The High Court would be justified in declining to quash where the offender is involved in an activity akin to financial or economic fraud or misdemeanour, as the consequences on the financial system will weigh in the balance., Perusal of the judgment of the Division Bench of this Court shows that reliance was also placed on the judgment in the matter of Meghnath Pandurang Divakar Vs. State of Goa and Others. It is also important to note that in the matter of Taj @ Arjun Mishra the victim also wanted to pursue her studies. The observations state: “Applicant No. 2 is a very bright student in academics and there lies a bright future for her life ahead and therefore both the applicants have arrived at the compromise.”, Considering all these aspects, in our opinion, learned counsel for the petitioner has made out a case for allowing the petition. Accordingly, the writ petition is allowed in terms of prayer clause B. The rule is made absolute in the above terms.
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id_1547
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Leave granted. Heard learned counsel appearing for the parties. We are amazed to see the order passed by the learned Single Judge of the Allahabad High Court. The respondents herein (applicants before the Allahabad High Court) had filed an application for grant of anticipatory bail. The application was vehemently opposed by the learned counsel for the State on the ground that the respondents were hardened criminals having criminal history. He also pointed out that look‑out notices have been issued against each of the respondents. The learned Single Judge of the Allahabad High Court, after hearing the parties, found that the respondents were not entitled to grant of anticipatory bail. The Allahabad High Court therefore rejected the application for grant of anticipatory bail. However, after the application was rejected, a motion was made on behalf of the respondents that they would like to move an application for discharge. The learned Single Judge of the Allahabad High Court, while rejecting an application for anticipatory bail, in the same breath granted them protection for a period of two months and directed that no coercive steps be taken against the respondents for a period of two months. It is thus clear that self‑contradictory orders have been passed by the Allahabad High Court. On the one hand, the application for anticipatory bail is rejected and, on the other hand, interim protection is granted for a period of two months. In that view of the matter, we are inclined to allow this appeal. The second part of the order directing that no coercive steps shall be taken against the respondents for a period of two months is quashed and set aside. Pending applications, if any, stand disposed of., New Delhi, July 18, 2023. Petition for Special Leave Petition (Criminal) No. 6740 of 2022 (arising out of impugned final judgment and order dated 12‑05‑2022 in CRMABA No. 3999 of 2022 passed by the Allahabad High Court). Date: 18‑07‑2023. These matters were called on for hearing today. For the petitioners: Vishwa Pal Singh, Advocate on Record; Adesh Kr. Gill, Advocate; Shubham Saxena, Advocate; Suraj Pal Singh, Advocate; Akash, Advocate. For the respondents: Mohd. Zahid Hussain, Advocate on Record; Camran Iqbal, Advocate; Comred Iqbal, Advocate; Anupam Mishra, Advocate. Upon hearing the counsel, the Supreme Court of India made the following: The appeal is allowed in terms of the signed order. Pending applications, if any, stand disposed of. The signed order is placed on the file.
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id_1548
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CRM-M-23524-2021 and Present: Mr. Randeep Surjewala, Advocate with Mr. R. Kartikeya, Advocate for the petitioners. Mr. Deepak Sabherwal, Additional Advocate General, Haryana. The matter is taken up for hearing through video conference due to COVID-19 situation., These two petitions are filed by Dalbir seeking regular bail in FIR No. 53, dated 22nd February 2017, under Section 124-A, 153-A of the Indian Penal Code, 1860 (hereinafter referred to as IPC) (Sections 294, 504, 500, 506, 505(1) IPC added later on) and FIR No. 208, dated 24th May 2021, under Sections 294, 504, 500, 506 and 505(1) IPC respectively registered at Police Station Sadar Jind, Jind., The issue involved in both the FIRs is that the petitioner had given speeches which, according to the State, had objectionable contents with regard to the present Chief Minister, Haryana and could have resulted in caste‑based division creating a threat to peace and harmony., The petitioner was arrested in both the FIRs, and the challan stands presented., Replies filed in both the petitions are taken on record., The apprehension in the reply is that the petitioner was arrested with great difficulty and there is every chance of his absconding., Learned counsel for the petitioner submits that it is a case of false implication. The petitioner was only exercising his fundamental right to protest. The petitioner has the right to criticize the functioning of the State., Contention is that to meet the apprehension of the State, the petitioner is ready to furnish surety of Rs. 2 Lakhs each in both the FIRs., Learned State counsel submits that if the petitioner is released on bail, he would indulge in similar activities and will create a law and order problem., While dealing with the petitions for grant of regular bail, the Court has no occasion to consider the merits of the allegations in detail. Suffice to say that freedom of speech is a fundamental right and makes a foundation for a strong democracy. At this stage must hasten to add that embargo to freedom of speech is prescribed in Article 19 of the Constitution of India., The nature of the contents of the speeches would be subject matter of trial as to whether it was lawful protest against the policies and working of the Government or had a different goal and intention., Be that as it may, the investigation in both the cases is complete. Conclusion of trial is likely to take time. On mere apprehension that bail will be misused, it would not be appropriate to deny the petitioner his personal liberty. The petitioner is granted bail, subject to furnishing surety/bail bonds to the tune of Rs. 2 Lakhs each in both the FIRs before the Chief Judicial Magistrate/Duty Magistrate concerned., Both the petitions are allowed., Needless to say that in case there is a misuse of bail granted to the petitioner, the State would always be at liberty to apply for cancellation of the bail order., A copy of this order be placed on the file of another connected petition.
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id_1549
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Date of Decision: 21 March 2022. Petitioner: Puran Chand Sharma. Respondent: State of Haryana. Present: Mr. S. S. Dinarpur, Advocate for the petitioner; Mr. Bhupender Singh, Deputy Advocate General, Haryana., Puran Chand Sharma has filed this petition under Section 482 of the Criminal Procedure Code to challenge the order dated 13 January 2021, whereby the Chief Judicial Magistrate, Yamuna Nagar, in violation of the order dated 6 November 2020 passed by this Hon'ble High Court, refused to refund the amount of Rs 1,10,000 deposited by him in compliance with the anticipatory bail order dated 25 February 2014 relating to FIR No. 428 dated 16 September 2012, registered at the Police Station, Yamuna Nagar under Sections 148, 149, 323, 427, 447, 452, 506 and 380 of the Indian Penal Code., The petitioner, fearing arrest, approached this Hon'ble High Court through CRM‑M‑5049‑2014 under Section 438 of the Criminal Procedure Code to seek pre‑arrest bail. On 25 February 2014 the Court extended interim bail and directed the petitioner to deposit Rs 1,10,000, which he was prohibited from claiming until the final disposal of the case., The petitioner complied by depositing the amount on 3 March 2014, and the interim bail order was confirmed by this Hon'ble High Court on 7 April 2014. The petitioner is ready to deposit the amount again, although the learned Additional Advocate General, Haryana, stated that the amount had been found stolen but was not mentioned in the FIR., The Court directed that the amount be deposited within seven days before the Trial Court and that the petitioner would not claim the amount until the final disposal. In the event of arrest, the petitioner would be released on interim bail subject to furnishing personal bonds and surety to the satisfaction of the Arresting/Investigating Officer, and he was required to join the investigation on 4 March 2014., The petitioner drew the Court’s attention to the order dated 25 February 2020, wherein the trial in the subject FIR ended in acquittal of all accused, including the petitioner. Accordingly, an application bearing No. CRM‑26961‑2020 in CRM‑M‑5049‑2014 was filed for directions to the Chief Judicial Magistrate, Yamuna Nagar, for release of the amount, and the application was accepted by order dated 6 November 2020 as the State counsel did not oppose the claim., Despite the direction of this Hon'ble High Court, the Chief Judicial Magistrate, Yamuna Nagar, declined the prayer through the impugned order dated 13 January 2021 and dismissed the application for release of the amount, contending that the complainant had preferred an appeal against the acquittal, although no notice had been served., On 17 February 2021, a notice of motion was issued to the State, and an explanation from Mr. Arvind Kumar, Chief Judicial Magistrate, Yamuna Nagar, was called for. The officer sent his explanation on 22 February 2021. The State filed a short reply by affidavit of Subhash Chand, Haryana Police Service, Deputy Superintendent of Police, Yamuna Nagar., The State counsel pointed out that the direction of this Hon'ble High Court on 6 November 2020 was specific, but the Trial Court declined the petitioner’s request on the ground that the complainant had challenged the judgment of acquittal by filing an appeal, and that the accused persons had not been served in the appeal. It was conceded that the condition imposed while releasing the petitioner on pre‑arrest bail would cease on acquittal of the accused, as their bail bonds and surety bonds stood discharged on 25 February 2020., The record shows that on 25 February 2014 the concession of interim pre‑arrest bail was extended to the petitioner with the condition to deposit Rs 1,10,000, which he was prohibited from claiming until the case was finally decided. The petitioner never claimed a refund during the trial, and after his acquittal he was within his rights to claim a refund, which was not opposed by the State counsel., The impugned order dated 13 January 2021 is unsustainable. The Chief Judicial Magistrate, Yamuna Nagar, needlessly interpreted the order of 6 November 2020 without jurisdiction and incorrectly held that the filing of an appeal by the complainant barred the refund. This reasoning is patently absurd, as the deposit order of 25 February 2014 was expressly considered by this Hon'ble High Court while issuing the directions on 6 November 2020., The explanation dated 22 February 2021 shows that the officer felt honoured to receive the show‑cause notice for violation of the High Court order and mistakenly refused to refund the amount, regretting the inconvenience caused to this Court. The expression and reasoning in the impugned order do not demonstrate erroneous disobedience of this Court’s direction and therefore are not worthy of acceptance., In view of the foregoing discussion, this Hon'ble High Court has no hesitation in holding that the Chief Judicial Magistrate, Yamuna Nagar, passed the impugned order by giving irrational reasons, reflecting a lack of understanding of criminal jurisprudence and fundamental principles of law, amounting to grave misconduct. The petition is allowed and the impugned order dated 13 January 2021 is set aside. The amount deposited by the petitioner pursuant to the order dated 25 February 2014 is directed to be refunded to him forthwith. A copy of this order shall be sent to the Hon'ble Chief Justice for initiating departmental action against Mr. Arvind Kumar, Chief Judicial Magistrate, Yamuna Nagar, Jagadhari.
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W.P.(C) 4848/2020 Page 1 of 6. This hearing is conducted through video conferencing. Court fees be filed within two weeks., This writ petition is filed by the petitioner seeking an appropriate direction to quash the Common Law Admission Test 2020 examination notification issued by respondent No.1 in so far as it mandates the petitioner to physically go to the examination centre and give the exam., The petitioner is a law graduate (Bachelor of Laws Honours) who wishes to pursue his Master of Laws. It is pleaded that the petitioner suffers from asthma and therefore falls under the vulnerable category of individuals who are advised by the Government not to go outside in the present time., The application forms were invited by the consortium of National Law Universities/respondent No.1 to conduct the Common Law Admission Test 2020 for undergraduate and postgraduate law programmes offered by the twenty‑two National Law Universities., It is pleaded that on account of the COVID‑19 pandemic, the entire educational system in the country has come to a standstill. Schools, colleges and universities are completely closed., The Common Law Admission Test 2020 examination was to be held on 22 August 2020. This date has now been extended to 28 September 2020. The grievance of the petitioner is that it is mandatory for the petitioner to physically go to the testing centre and give the said examination, which is dangerous in the present circumstances. It is pleaded that the Government of India has granted certain concessions on movement. However, movement of individuals under the risk category, i.e., elderly, children and other individuals who are suffering from ailments continues to be restricted. Hence, the present writ petition., Respondent No.1, the consortium of National Law Universities, has filed its counter affidavit. It is stated that respondent No.1 is responsible for conducting the Common Law Admission Test, which is a common examination for entry to various National Law Universities across the country. Approximately seventy‑eight thousand candidates are expected to appear in the examination across two hundred and three centres in the country., It is further pleaded that similar petitions have been rejected by the Supreme Court of India for various other examinations pertaining to professional degree courses. Reliance is placed on various decisions to the said effect that have been passed by the Supreme Court of India., It is also pointed out that respondent No.1’s decision to conduct CLAT 2020 at physical test centres was challenged by way of a public interest litigation before the Supreme Court of India. The same was dismissed in limine by a three‑judge bench of the Supreme Court of India in the order titled Mitul Jain v. Consortium of National Law Universities & Others in W.P.(C) 717/2020 dated 29 July 2020., It is further pleaded that the Ministry of Human Resource Development issued instructions on 6 July 2020 for conducting examinations at physical test centres for final term examinations for universities, Indian Institutes of Technology Joint Entrance Examination, National Eligibility cum Entrance Test, etc. These instructions would also cover the conduct of CLAT 2020 by respondent No.1. By way of office memorandum dated 6 July 2020, it is specially noted that the Ministry of Home Affairs has granted an exemption for opening educational institutions for the purpose of holding such examinations or evaluation work. Further, in case there are restrictions on movement in certain areas, admit/identity cards issued to the candidates would be treated as a pass for the movement of students. The State Governments would issue instructions to all local authorities to issue movement passes to invigilators and all personnel engaged in the conduct of the examination. All precautions would be taken, i.e., steps for disinfection of the entire examination centre, provision for sanitizer at entry gates, examination rooms, staff rooms, seating plans to ensure proper social distancing, thermal screening of all concerned individuals at entry gates, etc. The notification dated 30 June 2020 issued by respondent No.1 detailing the medical precautions to be undertaken while conducting CLAT 2020 examination has also been annexed with the counter affidavit of respondent No.1., Regarding the contention of the petitioner that a home‑based online test be conducted, it has been pleaded that a home‑based online test for around seventy‑eight thousand students would not be possible. The test would be completely compromised and may even be manipulated by the participants or coaching centres. Several meetings held by respondent No.1 concluded that an online test at home with technological measures cannot ensure transparency, fairness and integrity of a high‑stake examination such as CLAT. Further, home‑based exams require access to a laptop or desktop computer, internet access and network stability. Respondent No.1 cannot expect all candidates to have access to these resources at home. Such a course would severely harm candidates from backward areas or sections., The petitioner has also filed a rejoinder affidavit. In the course of arguments, he has reiterated that all his contentions have been noted in the rejoinder. It has been pleaded that the direction to the petitioner, who is an asthmatic, to appear physically in the examination centre of CLAT 2020 is violative of the right to life and the right to health guaranteed under Article 21 of the Constitution of India and hence is liable to be set aside. Further reliance is placed on the notification issued by the Ministry of Home Affairs under the Disaster Management Act, 2005 on 29 July 2020 where certain guidelines and restrictions have been issued. One of the guidelines states that persons above 65 years of age and persons with co‑morbidities are advised to stay at home, except for essential and health purposes. It is pleaded that the act of the respondents tantamounts to violation of the said guidelines. Any such violation invites prosecution in terms of the Disaster Management Act, 2005 and other provisions. It is further pleaded that because of the present COVID‑19 situation, the premier institution Indian Institute of Mass Communication has cancelled its entrance examination. It is stated that mere observations in the order of the Supreme Court of India do not cause prejudice to the case of the petitioner. It is further pleaded that the home‑based online exam is the safest and the best mode in these trying times, especially in view of the COVID‑19 pandemic., I may first have a look at the order of the Supreme Court of India dated 29 July 2020 passed in W.P.(C) No.717/2020, titled Mitul Jain v. Consortium of National Law Universities & Others. The petition was dismissed by the following order: ‘We are not inclined to entertain this petition under Article 32 of the Constitution of India. The writ petition is accordingly dismissed. Pending applications stand disposed of.’ Keeping in view the aforesaid, it is clear that the order would remain binding on this court., Even otherwise, it is clear that the plea of respondent No.1 that a home‑based exam may not be appropriate for approximately seventy‑eight thousand candidates who are to take the exam. The possibility of the exams being compromised or manipulated by the participants or coaching centres cannot be ruled out. That apart, the problem of accessibility for seventy‑eight thousand candidates to appropriate technology, internet connection, laptop or desktop computer itself would be doubtful. Hence this plea of the petitioner cannot be accepted., Further reliance of the learned counsel for the petitioner on the guidelines of the Ministry of Home Affairs is misplaced. The said guidelines clearly provide that persons with co‑morbidities are advised to stay at home. It is at best an advisory., Further, as pointed out in the counter affidavit by respondent No.1, the Ministry of Human Resource Development has issued instructions for conducting examinations at physical centres for final term examinations of universities, Indian Institutes of Technology Joint Entrance Examination, National Eligibility cum Entrance Test, etc. The concerned memorandum notes that the Ministry of Home Affairs has granted exemptions for opening educational institutions for holding such examinations. The office memorandum envisages and permits the conduct of the examinations in online or offline mode, subject to adherence to the Standard Operating Procedure, which is sought to be followed by respondent No.1., It is clear that the pleas of the petitioner are misplaced and cannot be a ground for postponing the exams or changing the mode of conduct., I may also note that the petitioner completed his Bachelor of Laws in 2016. It is now after a gap of four years that he seeks to apply for a postgraduate programme in law. The petitioner has therefore waited for four years to give the exam., There is no merit in the present petition. The same is dismissed.
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Criminal Appeal No. 2400 of 2006 dated the 13th day of June 2022. This appeal is filed by the accused in Section No. 106/2002 on the file of the Additional Sessions Judge (Adhoc) II, Thodupuzha. The above case is charge‑sheeted by the Circle Inspector of Police, Thodupuzha, against the appellants alleging offences punishable under Sections 341 and 307 read with Section 34 of the Indian Penal Code., When this appeal came up for consideration, the learned counsel for the appellants and the Public Prosecutor submitted that the first accused is deceased. The learned counsel for the appellants also informed that, to his knowledge, the legal heirs of the first appellant/first accused are not interested in proceeding with the appeal. Therefore the appeal against the first accused is abated as far as the sentence of imprisonment is concerned. The Kerala High Court needs to consider only the appeal filed by the second appellant, who is the second accused in this case (hereafter, the appellants are mentioned as accused Nos. 1 and 2 respectively)., The prosecution case is that on 10‑11‑1999 at about 7 p.m., accused Nos. 1 and 2 were abusing Witness 2, who is the injured party, using foul language just outside the shop of Witness 7, who is the uncle of Witness 2. Witness 2 left the shop and tried to enter his autorickshaw which was parked nearby. At that time, it is alleged that the second accused caught hold of Witness 2 on his collar and consequently there was a scuffle. The first accused, who had a knife hidden on his waist, quickly pulled it out and caused an incised injury on the left side of the chest of Witness 2. It is further alleged that the first accused tried to swing his knife again to cause a second injury, but this was blocked by Witness 2, and the knife deflected and struck the second accused on his right thigh. Thereafter the accused fled from the scene. Witness 2 was taken to a hospital where he was given first aid and then taken to Excelsior Hospital, Thodupuzha, where he was examined at 9.25 p.m. on 10‑11‑1999. Exhibit P1 First Information Statement was subsequently recorded and Exhibit P10 First Information Report was registered at 1.00 a.m., To substantiate the case, the prosecution examined Witnesses 1 to 15. Exhibits P1 to P21 were marked on the side of the prosecution. After going through the evidence and documents, the trial court found that both accused committed the offence under Sections 341 and 307 read with Section 34 of the Indian Penal Code. The accused were sentenced to undergo rigorous imprisonment for seven years each and to pay a fine of Rs 25,000 each for the offence punishable under Section 307 read with Section 34 of the Indian Penal Code. In default of payment of fine, the accused were directed to undergo rigorous imprisonment for one more year. The accused were further sentenced to undergo simple imprisonment for one month each for the offence under Section 341 read with Section 34 of the Indian Penal Code. The substantive sentences were directed to run concurrently. If the fine is realised, there was a direction to pay the same to Witness 2 as compensation. Aggrieved by the conviction and sentence, this criminal appeal is filed., The matter was heard by Advocate B. Renjith Marar, who was well assisted by Advocate Arun Poomulli. An argument note prepared by Advocate Arun Poomulli was also filed., Witness 1 is the first informant in this case. Although his First Information Statement indicates that he saw the incident, he was declared hostile because he deposed before the Court that he had not seen the incident. Through Witness 1, Exhibit P1 First Information Statement was marked. Exhibits P1(a) and P1(b) are portions of the First Information Statement marked through Witness 1. Witness 2 is the injured party and he deposed about the incident in detail. Witness 3 is also an eye‑witness, who is the cousin brother of Witness 5. He also adduced evidence to support the case of Witness 2, the injured witness. Witness 4 was cited as an eye‑witness but turned hostile to the prosecution; the portion of his Section 161 Criminal Procedure Code statement is marked as Exhibit P2. Witness 5 is the scene mahazar witness and Exhibit P3 scene mahazar is marked through Witness 5. Witness 6 is a witness to Exhibit P4 seizure mahazar by which the shirt and dhoti of the second accused were recovered, but he turned hostile to the prosecution. Exhibit P4 is the seizure mahazar and Material Objects 4 and 5 are the shirt and dhoti of the second accused seized as per Exhibit P4. Witness 7 is the father’s brother of Witness 2 and was cited as an eye‑witness but also turned hostile to the prosecution; Exhibits P6 and P7 are portions of his Section 161 Criminal Procedure Code statement. Witness 8 is the Casualty Medical Officer of Excelsior Hospital, Thodupuzha, who examined the second accused. Exhibit P8 is the wound certificate of the second accused. Witness 9 is the Village Officer through whom Exhibit P9 scene plan is marked. Witness 10 is the Head Constable of Thodupuzha Police Station, who registered Exhibit P10 First Information Report. Witness 11 is the Investigating Officer who conducted investigation in this case. Exhibit P11 is the property list and Exhibit P12 is a report submitted by Witness 11. Witness 12 is the Casualty Medical Officer, Medical Trust Hospital, Ernakulam, who examined Witness 2. Exhibit P13 is the wound certificate of Witness 2 and Exhibit P14 is the discharge certificate of Witness 2. Witness 13 conducted the investigation; through him Exhibits P15, P16 and P17 were marked. Exhibit P15 is the seizure mahazar by which Material Objects 2 and 3 (dress of the first accused) were seized. Exhibit P16 is the property list and Exhibit P17 series are the arrest memo. Witness 14 is the Circle Inspector of Police who conducted investigation and submitted the final report. Exhibit P18 chemical analysis report, Exhibit P19 charge sheet in the counter case, Exhibit P20 certified copy of First Information Statement and Exhibit P21 certified copy of the First Information Report were marked through him. Witness 15 is the Sub Engineer, KSEB, who examined to state that there was light available at the scene of occurrence. Exhibit D1 is the copy of the complaint in Section No. 540/2006 which is the counter case to this case. These are the evidences available in this case., A counter case was registered in connection with this incident. Exhibit D1 is the private complaint filed by the second accused. This was committed to the Sessions Court and numbered as Section No. 540/2006. The learned Sessions Judge discharged the accused in this case by invoking the power under Section 227 of the Criminal Procedure Code on 17‑11‑2006. Thereafter the present case was heard and disposed of by a separate judgment dated 08‑12‑2006., The learned counsel for the accused submitted that the trial Judge has not followed the correct procedure to be followed in cases where there is a case and counter case. The learned counsel submitted that after discharging the accused in the counter case, the learned Judge convicted the accused by a separate judgment on a later day. The contention of the accused is that this is against the principle laid down by this Court and the Apex Court. The learned counsel relied on the judgment of the Apex Court in State of Madhya Pradesh v. Mishrilal (2003 Kerala High Court 1662). The learned counsel also submitted that even if the prosecution case is accepted, common intention under Section 34 of the Indian Penal Code is not fully established by the prosecution. According to the learned counsel, the evidence suggests that the second accused did not have a meeting of minds with the first accused to cause grievous injury to Witness 2 with the knife. Therefore the contention of the accused is that it is unfair to mulct the liability for the act of the first accused upon the second accused. The learned counsel also contended that the existence of a right of private defence cannot be entirely ruled out in the present case. According to the learned counsel, such right may emerge out of the facts and circumstances even if it is not specifically pleaded. The defence only needs to prove its case of private defence to the standard of preponderance of probabilities. It is also contended by the learned counsel for the accused that the weapon used for committing the offence was not recovered. The learned counsel relied on the following judgments: Jai Bhagwan & Others v. State of Haryana (1999 Kerala High Court 474), Krishna & Another v. State of Uttar Pradesh (2007 Kerala High Court 3794), Salim Zia v. State of Uttar Pradesh (1979 Kerala High Court 41) and Ajim Yusufbhai Suryamemon v. State of Gujarat (2017 Kerala High Court 4346)., The learned Public Prosecutor submitted that there is ample evidence to convict the accused in this case. The Public Prosecutor submitted that the evidence of Witness 2 is corroborated by the evidence of Witness 3. The Public Prosecutor also submitted that the medical evidence is consistent with the ocular evidence adduced by the prosecution and therefore, there is nothing to interfere with the conviction and sentence imposed by the trial court. On hearing the arguments advanced by either side, the following points are framed for determination in this appeal: (1) In a case and counter case, if the trial court is of the opinion that the counter case is to be discharged, what is the procedure to be followed? (2) Whether there is a common intention shared by the second accused with the first accused for convicting the second accused under Section 307 read with Section 34 of the Indian Penal Code. (3) Whether the second accused committed the offence under Section 341 of the Indian Penal Code., It is a settled position that, when there are two criminal cases related to the same incident, they should be tried and disposed of by the same Court one after the other and the judgments must be pronounced separately but on the same day. Such cases in which two different versions of the same incident resulting in two different criminal cases are commonly referred to as \case and counter case\. The Apex Court in Sudir v. State of Madhya Pradesh (2001 Kerala High Court 166) observed: \It is a salutary practice, when two criminal cases relate to the same incident, they are tried and disposed of by the same Court by pronouncing judgments on the same day. Such two different versions of the same incident resulting in two criminal cases are compendiously called 'case and counter case' by some High Courts and 'cross cases' by some other High Courts. Way back in the 1920s, a Division Bench of the Madras High Court (Waller and Cornish, JJ.) made a suggestion (In Re Goriparthi Krishtamma - 1929 Madras Weekly Notes 881) that a case and counter case arising out of the same affair should always, if practicable, be tried by the same court; and each party would represent themselves as having been the innocent victims of the aggression of the other\., Close to its heels, Justice Jackson made an exhortation to the then Legislature to provide a mechanism as a statutory provision for trial of both cases by the same Court (vide Krishna Pannadi v. Emperor (AIR 1930 Mad. 190)). The learned Judge said: \There is no clear law as regards the procedure in counter cases, a defect which the Legislature ought to remedy. It is a generally recognised rule that such cases should be tried in quick succession by the same Judge, who should not pronounce judgment till the hearing of both cases is finished\., The practical reasons for adopting a procedure that such cross cases shall be tried by the same Court can be summarised as follows: (1) It staves off the danger of an accused being convicted before his whole case is before the Court. (2) It deters conflicting judgments being delivered upon similar facts. (3) In reality, the case and the counter case are, to all intents and purposes, different or conflicting versions of one incident., Many High Courts have reiterated the need to follow the said practice as a necessary legal requirement for preventing conflicting decisions regarding one incident. This Court approved the practice in Nathi Lal and Others v. State of Uttar Pradesh & Anr. (1990 (Supp) SCC 145). The procedure to be followed in such a situation has been succinctly delineated in that decision: \The same learned Judge must try both cross cases one after the other. After the recording of evidence in one case is completed, he must hear the arguments but reserve the judgment. Thereafter he must proceed to hear the cross case, record all the evidence, hear the arguments and reserve the judgment in that case. The same learned Judge must thereafter dispose of the matters by two separate judgments. In deciding each case, he can rely only on the evidence recorded in that particular case. The evidence recorded in the cross case cannot be looked into, nor can the Judge be influenced by whatever is argued in the cross case. Each case must be decided on the basis of the evidence placed on record in that particular case without being influenced in any manner by the evidence or arguments urged in the cross case. Both judgments must be pronounced by the same learned Judge one after the other\., When one of the two cases relating to the same incident is charge‑sheeted or complained of offences exclusively triable by a Court of Sessions, but none of the offences in the other case is exclusively triable by the Sessions Court, the Magistrate before whom the former case reaches has no escape from committing the case to the Sessions Court as provided in Section 209 of the Code. Once the case is committed to the Sessions Court, it is governed by the provisions of Chapter 18 of the Code. Although the next case cannot be committed under Section 209, the Magistrate has power to commit the case to the Court of Sessions under Section 323 of the Code, which reads: \If, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions hereinbefore contained and thereupon the provisions of Chapter 18 shall apply to the commitment so made\., The above Section does not make an inroad into Section 209 because the former is intended to cover cases to which Section 209 does not apply. When a Magistrate has committed a case on account of his legislative compulsion by Section 209, its cross case, having no offence exclusively triable by the Sessions Court, must appear to the Magistrate as one which ought to be tried by the same Court of Sessions. The Magistrate can therefore exercise the special power conferred on him by virtue of Section 323 when he commits the cross case also to the Court of Sessions. Commitment under Sections 209 and 323 might be through two different channels, but once they are committed their subsequent flow can only be through the stream channelised by the provisions contained in Chapter 18., In State of Madhya Pradesh v. Mishrilal and others (2003 Kerala High Court 1662), the Apex Court considered the point in detail. Paragraph 8 of that judgment states: \In the instant case, it is undisputed that the investigating officer submitted the challan on the basis of the complaint lodged by the accused Mishrilal in respect of the same incident. It would have been just, fair and proper to decide both the cases together by the same Court in view of the guidelines devised by this Court in Nathilal's case. The cross cases should be tried together by the same Court irrespective of the nature of the offence involved. The rationale behind this is to avoid conflicting judgments over the same incident because if cross cases are allowed to be tried by two courts separately there is a likelihood of conflicting judgments. In the instant case, the investigating officer submitted the challan against both the parties. Both the complaints cannot be said to be right. Either of them must be false. In such a situation, legal obligation is cast upon the investigating officer to make an endeavour to find out the truth and to cull out the truth from the falsehood. Unfortunately, the investigating officer has failed to discharge the obligation, resulting in a grave miscarriage of justice\., In Maydeen A.T. and Another v. Assistant Commissioner, Customs Department (2021 Kerala High Court 6676) the Apex Court observed: \So far as the law for trial of the cross cases is concerned, it is fairly well settled that each case has to be decided on its own merit and the evidence recorded in one case cannot be used in its cross case. Whatever evidence is available on the record of the case only that has to be considered. The only caution is that both trials should be conducted simultaneously or, in case of the appeal, they should be heard simultaneously. However, we are not concerned with cross‑cases but with an eventuality of two separate trials for the commission of the same offence (two complaints for the same offence) for two sets of accused, on account of one of them absconding\., The discharge order passed in Sessions case No. 540/2006 is not seen in the lower court records. Therefore, this Court directed the Registry to obtain a copy of the same, which was subsequently obtained. A perusal of the order shows that the learned Judge was persuaded to discharge the accused in the counter case mainly because of delay in filing the counter case. That alone is not a reason to discharge an accused at the stage of Section 227 of the Criminal Procedure Code. Since the discharge order is not impugned in this appeal, no further observation is made. However, when a Sessions Court tries a case and a counter case, the trial court cannot take a flimsy stand to discharge the accused in the counter case and thereafter proceed with the main case. Such a shortcut defeats the procedure laid down by this Court and the Apex Court on the trial of case and counter case. The reason for prescribing such a procedure is to avoid conflicting decisions. If the trial court feels that the accused in the counter case is to be discharged, it is desirable to pass such orders along with the judgment in the main case, especially when the counter case is committed after the trial in the main case has started. In situations where both cases are committed together and come up for consideration together, the Court should conduct a hearing at the stage of framing charge in both cases, and the charge can be framed in one case while a discharge order can be passed in the other case on the same day by the same Judge. The orders should be separate and pronounced one after the other. If the counter case is discharged by a presiding officer and thereafter he is transferred or retires, the successor judge will have to decide the main case, creating a chance for a conflicting decision. The trial court ought not to adopt a shortcut method by discharging the accused in the counter case and proceeding with the main case, as this defeats the principle laid down by this Court and the Apex Court regarding the procedure to be adopted in case and counter cases., It is a settled position that common intention, essentially being a state of mind, is very difficult to prove because of the difficulty in procuring direct evidence. Therefore it has to be inferred from the conduct of the accused or other relevant circumstances of the case. The inference can be gathered from the manner in which the accused arrived at the scene and mounted the attack, the determination and concert with which the attack was made and from the nature of injury caused by one or more of them. The contributory acts of persons who are not responsible for the injury can further be inferred from the subsequent conduct after the attack. In other words, the totality of circumstances must be taken into consideration in arriving at a conclusion whether the accused had the common intention to commit an offence of which they could be convicted (see Balvir Singh and others v. State of Madhya Pradesh [2019 Kerala High Court 6190]). Although both Sections 34 and 149 of the Indian Penal Code are modes of apportioning vicarious liability on the individual members of a group, there exist important differences between these two provisions. Section 34 of the Indian Penal Code requires active participation and a prior meeting of minds whereas Section 149 of the Indian Penal Code assigns liability merely by membership of the unlawful assembly (see Rohtas and Another v. State of Haryana [2020 (6) Kerala High Court 728]). In Jai Bhagwan and others v. State of Haryana (1999 Kerala High Court 474) the Apex Court observed: \To apply Section 34 of the Indian Penal Code, apart from the fact that there should be two or more accused, two factors must be established: (i) common intention and (ii) participation of the accused in the commission of an offence. If common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as it involves vicarious liability; but if participation of the accused in the crime is proved and common intention is absent, Section 34 cannot be invoked. In every case it is not possible to have direct evidence of common intention. It has to be inferred from the facts and circumstances of each case\., Therefore, if common intention is proved but there is no overt act attributed to the individual, Section 34 will be attracted as it involves vicarious liability. But if participation of the accused in the crime is proved and common intention is absent, Section 34 is not attracted. In Bhaba Nanda Sarma and others v. State of Assam (1977 Kerala High Court 703) the Apex Court considered Sections 34 and 38 of the Indian Penal Code. It held that to attract the application of Section 34 it must be established beyond any shadow of doubt that the criminal act was done by several persons in furtherance of the common intention of all. In other words, the prosecution must prove facts to justify an inference that all the participants of the act had shared a common intention to commit the criminal act which was finally committed by one or more of the participants. Section 38 of the Penal Code says: \Where several persons are engaged or concerned in the commission of a criminal act, they may be guilty of different offences by means of that act.\ The Court observed that even though several persons may do a single criminal act, the responsibility may vary according to the degree of their participation.
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Regina v. Mendez and another [2010 (England and Wales Court of Appeal) Criminal 516] the England and Wales Court of Appeal observed: In case of joint enterprise liability for murder where the common purpose was not to kill but to cause serious bodily harm, D was not liable for the murder of V if the direct cause of V’s death was a deliberate act by P. A deliberate act means deliberate and not by chance, rather than referring to any consideration of P’s intention as to the consequences, which was of a kind (a) unforeseen by D and (b) likely to be altogether more life‑threatening than acts of the kind intended or foreseen by D. It would not be just that D should be found guilty of the murder of V by P if P’s act was of a different kind from, and much more dangerous than, the sort of acts which D had intended or foreseen as part of the joint enterprise. In the instant case, the judge had failed to direct the jury on the central issue in a sufficiently clear and balanced way. Accordingly, the convictions for murder were unsafe and would be quashed., Section 34 of the Indian Penal Code states that when a criminal act is done by several persons in furtherance of the common intention of all, each person is liable for that act in the same manner as if it were done by him alone. Section 38 of the Indian Penal Code says that where several persons are engaged or concerned in the commission of a criminal act, they may be guilty of different offences by means of that act. Section 38 is applicable where several persons are engaged or concerned in the commission of a criminal act; in such a situation those persons may be guilty of different offences by means of that act. In such a situation, Section 34 has no application at all., The question to be decided is whether the second accused is guilty of the offence under Section 307 read with Section 34 of the Indian Penal Code. There is no evidence to show a meeting of minds between the first and the second accused as to what should be done to PW2. There is no evidence that the first and the second accused had an intention to commit murder of PW2. Moreover, there is no evidence that the second accused was aware of the fact that there was a knife hidden in the waist of the second accused. In the First Information Statement given by PW1, a different story is narrated. PW1 turned hostile to the prosecution and denied all the versions in the First Information Statement. Therefore, the statement in the First Information Statement, which was given immediately after the incident, shows that there is no meeting of minds between the first and the second accused regarding the infliction of fatal injury to PW2 by the first accused. The statement has no legal validity because the maker turned hostile to the prosecution. Even then there is no admissible evidence to show a common intention between the first and the second accused., However, there is a uniform version from PW2 and PW3 that the second accused wrongfully restrained PW2. In such circumstances, there is no common intention or meeting of minds between the first and the second accused; therefore, the second accused cannot be convicted under Section 307 read with Section 34 of the Indian Penal Code. There is strong evidence that the second accused wrongfully restrained PW2, and consequently the conviction imposed on the second accused under Section 341 of the Indian Penal Code is perfectly justified. The trial court imposed a sentence of simple imprisonment for one month and a fine under Section 341 read with Section 34 of the Indian Penal Code on the second accused. The incident happened in 1999, and about twenty‑four years have passed. A perusal of the impugned judgment shows that the second accused underwent pre‑trial detention for about twenty‑one days. In such circumstances, the substantive sentence imposed on the second appellant may be reduced to a fine of Rupees 500, which is the maximum that can be imposed under Section 341 of the Indian Penal Code, with a default sentence., The first accused died pending this appeal. The legal heirs of the first accused are not interested in proceeding with the appeal. In the light of the full bench decision of the High Court in Pazhani v. State of Kerala [2017 (1) Kerala High Court 173], the sentence of imprisonment is abated. Since a fine was imposed by the trial court on the first accused, the appeal shall be consigned to the record room for other purposes mentioned in Pazhani’s case., The criminal appeal is allowed in part. (1) The sentence of imprisonment imposed on the first appellant is abated, and the appeal of the first accused shall be consigned to the record room for the purposes mentioned in Pazhani’s case. (2) The second appellant is not guilty under Section 307 read with Section 34 of the Indian Penal Code and is acquitted of that offence. (3) The conviction of the second appellant under Section 341 of the Indian Penal Code is confirmed, but the sentence is reduced to Rupees 500. In default of payment of the fine, the second appellant will undergo simple imprisonment for one week.
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Will the Minister of Law and Justice be pleased to state: (a) whether the Supreme Court recently expressed its opinion over delay in notifying the names of judges recommended by the collegium; (b) number of collegium proposals pending with Government as on date and the reasons for delay; (c) number of collegium proposals returned by Government during the last five years, the reasons therefor; (d) state‑wise details of proposals recommended by High Courts pending with the Supreme Court collegium and Government, the reasons therefor; (e) number of vacancies as on date in the Supreme Court and High Courts; and (f) whether Government proposes to reintroduce National Judicial Appointments Commission with suitable modifications., Appointment of the judges of the constitutional courts is a continuous, integrated and collaborative process between the Executive and the Judiciary. It requires consultation and approval from various constitutional authorities both at state and central level. The Government appoints only those persons as judges of High Courts who are recommended by the Supreme Court Collegium. As on 05.12.2022, there is one proposal for appointment of a Supreme Court judge and eight proposals for appointment of High Court judges recommended by the Supreme Court Collegium are pending with the Government. Further, there are eleven proposals of transfer of High Court judges, one proposal of transfer of a Chief Justice and one proposal of appointment of a Chief Justice of a High Court recommended by the Supreme Court under consideration of the Government., The Supreme Court, while hearing a case, has expressed its opinion over delay in notifying the names of judges recommended by the collegium. During the last five years, a total of 256 proposals have been remitted by the Government to the High Courts. The proposals are remitted to the concerned High Courts on the advice of the Supreme Court Collegium. As on 05.12.2022, 146 proposals recommended by the High Court Collegiums are at various stages of processing with the Government and the Supreme Court Collegium. The High Court‑wise details are in Annexure., As on 05.12.2022, against the sanctioned strength of 34 judges, 27 judges are working in the Supreme Court leaving seven vacancies. In the High Courts, against the sanctioned strength of 1,108, 778 judges are working leaving 330 vacancies., No, at present there is no such proposal to reintroduce the National Judicial Appointments Commission. Annexure: details of 146 proposals recommended by the High Courts and pending with the Government.
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FAM No. 237 of 2019 Judgment Reserved On: 19.09.2023 Judgment Delivered On: 25.09.2023 Versus Nandg Sil Naw, District Bilaspur. For Appellant: Shri Ritesh Giri, Advocate. For Respondent: Ms. Nirupama Bajpai, Advocate. Honourable Shri Goutam Bhaduri & Honourable Shri Deepak Kumar Tiwari, Judges. The following judgment of the High Court of Chhattisgarh was passed by Justice Deepak Kumar Tiwari, J., Challenge in this Appeal is to the judgment and decree dated 28.06.2019 passed by the Judge of the Family Court, Janjgir in Civil Suit No.71-A/2018 whereby the application/suit preferred by the appellant/husband for grant of decree of divorce was dismissed. The husband is in appeal before the High Court of Chhattisgarh., Facts of the case are that the parties were married on 19.05.2005 at village Maro, District Bemetara. After some time of the marriage, the behaviour of the respondent/wife changed and she started raising quarrels on petty issues. She created pressure on the appellant to reside separately from his parents and started neglecting his parents. The respondent/wife was also not discharging domestic responsibilities. When the appellant tried to convince her, she became angry and behaved rudely. It has been further alleged that without his consent she frequently went to her parents' house and resided there for three to four months without any reason. When the mother of the appellant called, she blamed her for witchcraft and black magic. In June 2009, she left the matrimonial house voluntarily and refused to return. After five months, when the appellant along with his father and other relatives went to take back his wife, on the advice of her father and other relatives she returned to her matrimonial house. In December 2009, she again called her brother and expressed that she does not like the appellant and was not inclined to live with him and left the matrimonial house voluntarily without any cause. Though the appellant tried several times to bring her back, she refused to come. When the appellant called his wife to attend the marriage function of his younger brother, she refused to come. In 2012 the mother of the appellant and in 2015 the father of the appellant expired; at that time also the appellant went to take back his wife, but she was not willing to return., The respondent/wife has filed an application for maintenance before the Family Court, Raipur under Section 125 of the Criminal Procedure Code, in which vide order dated 20 September 2017, maintenance amount of Rs.5,500 per month was granted to her. The respondent/wife has been residing separately since December 2009 and thereafter no physical relation was made and there was no chance of any reunion. Consequently, it was prayed to allow the suit and decree of divorce to be granted., While denying the aforesaid contention of the appellant/husband, it is pleaded by the respondent/wife that during the counselling proceeding before the first Additional Principal Judge, Family Court, Raipur, she had agreed to return to her matrimonial house with the appellant, but the appellant himself, by making false allegations, refused to keep her. She is willing to reside with the appellant. It has been further pleaded in the reply that till five years of the marriage they both lived happily and thereafter the appellant started harassing her and did not take her to his place of posting. The appellant used to doubt her character and, under the influence of others, he harassed her. Since 2010 the appellant started neglecting her, so she is living in her parental house. The appellant has also alleged that she had relations with his younger brother Ramashankar (PW‑4) and that she was beaten and abused. Neither the appellant had any intention to take back his wife nor has he filed any application for restitution of conjugal rights nor convened any social meeting for that purpose. In the counselling proceeding he categorically stated that he would not keep his wife with him. The petition has been filed for grant of decree of divorce on a false ground and therefore deserves to be dismissed., In the proceeding before the Family Court, the appellant/husband examined himself as PW‑1, his neighbour Rameshwar (PW‑2), Govind Das (PW‑3) (uncle in the village and friend of PW‑1), and his younger brother Ramashankar (PW‑4) whereas the respondent/wife examined herself as NAW‑1, her brother Kamlesh Shriwas (NAW‑2), Ashok Kaushal (NAW‑3) and Jitendra., The learned Family Court framed the issue with regard to cruelty and desertion and, after evaluating the evidence, dismissed the suit preferred by the appellant for grant of decree of divorce holding that he failed to prove cruelty and that the ground of desertion was also not proved. Thus this appeal., Learned counsel for the appellant submits that the evidence on record would show that the wife treated the appellant with cruelty and also deserted him since 2009. Therefore, the evidence has not been appreciated by the Family Court in a proper manner. Learned counsel prays to allow the appeal and grant decree of divorce in favour of the appellant., On the other hand, learned counsel for the respondent/wife would support the impugned judgment on the submission that the cause of action arose in December 2009 when the appellant stated that the respondent/wife refused to return, though in the counselling proceeding held on 13 October 2010, vide Exhibit D/1 and D/2, the respondent/wife clearly expressed her desire to join the company of her husband and reside at his place of posting. However, the appellant himself is not willing to take her back and stated that the wife has neglected him, so he wants time to consider her proposal. The impugned judgment is well‑merited and does not call for any interference., We have heard learned counsel for the parties at length, perused the judgment and record with utmost circumspection., In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence available on record., The appellant (PW‑1) has stated that his marriage was solemnised with the respondent on 19 May 2005 and for some days of the marriage the behaviour of the respondent was good. After some time her behaviour changed and she started creating pressure on the appellant to reside separately from his parents. He further deposed that in 2012 his mother and in 2015 his father expired and that on 16 May 2010 the marriage of his younger brother Harishankar was solemnised. In December 2009, when his parents and brother were residing with him, the respondent started raising quarrels by saying that he should not make any expenditure on the ancestral house of the village and created pressure to live with her at his place of posting, and left the matrimonial house. In cross‑examination at paragraph 19 the appellant denied that during the counselling proceeding before the counsellor the respondent expressed her desire to reside with him and that he himself refused to keep her., The respondent/wife produced and proved the proceeding vide Exhibit D/1 and D/2 wherein on 13 October 2010, when the matter was pending before the first Additional Principal Judge, Family Court, Raipur, the wife categorically expressed her desire to go along with her husband if he kept her at his place of posting, but the appellant did not agree. In cross‑examination at paragraph 19 he categorically denied such fact, which took place before the Court, and gave no reason., Admittedly, the appellant/husband himself refused to allow his wife to reside with him at his place of posting and has not stated any reason for this refusal in the petition or in his deposition. When the appellant's conduct was at fault in not allowing his wife to reside with him, and the wife is living separately at her parental house while the appellant/husband has made no effort, called no social meeting, and taken no steps to file any application for restitution of conjugal rights, the mere assertion in the plaint that the wife is residing separately since December 2009 for any sufficient cause is not proved. Further, the appellant's submission that he tried to bring back his wife when his parents expired and at the time of his younger brother's marriage is not substantiated, as in 2010 the appellant categorically refused to bring back his wife. Even in his submission before the Court below he stated that he is not willing to keep the respondent with him, apprehending some threat to his life if he keeps her., In Samar Ghosh v. Jaya Ghosh, the Honourable Supreme Court indicated illustrative cases where inference of mental cruelty can be drawn. The instances are: (i) acute mental pain, agony and suffering that makes it impossible for the parties to live together; (ii) a situation where the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party; (iii) mere coldness or lack of affection does not amount to cruelty, but frequent rudeness of language, petulance, indifference and neglect may make married life intolerable; (iv) mental cruelty is a state of mind where deep anguish, disappointment, frustration caused by the conduct of the other for a long time may lead to mental cruelty; (v) a sustained course of abusive and humiliating treatment calculated to torture or render miserable life of the spouse; (vi) sustained unjustifiable conduct affecting physical and mental health of the other spouse; (vii) sustained reprehensible conduct, studied neglect, indifference or total departure from normal conjugal kindness causing injury to mental health or deriving sadistic pleasure; (viii) conduct more than jealousy, selfishness, possessiveness, which causes unhappiness, is not a ground for divorce on mental cruelty; (ix) trivial irritations, quarrels, normal wear and tear of married life are not adequate for divorce on mental cruelty; (x) the married life should be reviewed as a whole and isolated instances over years will not amount to cruelty; (xi) unilateral sterilisation or vasectomy or abortion without consent may lead to mental cruelty; (xii) unilateral refusal to have intercourse for a considerable period without physical incapacity may amount to mental cruelty; (xiii) unilateral decision not to have a child after marriage may amount to cruelty; (xiv) a long period of continuous separation may indicate that the matrimonial bond is beyond repair and the marriage becomes a fiction., In the light of the aforesaid observations, if we examine the facts of the present case, we find that as per the pleading of the plaint, the appellant stated that after December 2009 he had tried to bring back his wife, which is contradicted by the respondent's stand during the counselling proceeding where she expressed her desire to join the appellant and it was the appellant who refused to keep her. It is obvious that if the wife insists on staying with the husband without any extraneous reason or official cause, and the husband refuses to keep her at his posting place, it cannot be said that the wife has been cruel to the husband. Reciprocal respect and regard for each other's company is necessary during matrimonial ties., In the circumstances, this Court is of the considered view that any past relations with the parents and behaviour of the appellant were already condoned by the conduct of the appellant and the finding recorded by the learned Family Court is based on material available on record; no interference is called for in that finding., With respect to permanent alimony, it is admitted that the appellant is working as Shiksha Karmi Grade I and the respondent/wife is receiving interim maintenance of Rs.5,500 per month in a proceeding under Section 125 of the Criminal Procedure Code. Considering present market rates and inflation and to avoid multiplicity of proceedings, we deem it appropriate that Rs.15,000 be granted as monthly maintenance to the respondent/wife henceforth. Accordingly, the husband shall pay Rs.15,000 as monthly maintenance to the respondent/wife. The appellant shall make regular monthly deposit of the aforesaid amount to the account of the respondent/wife. The maintenance amount is inclusive of all other maintenance granted to the respondent/wife and shall be set off and adjusted. Every three years there shall be an increase of five percent on the aforesaid amount., In the result, the appeal being devoid of any substance deserves to be dismissed.
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