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Through: Mr. Sanjeev Bhandari, Advocate (Amicus Curiae) versus Through: Mr. Vishnu Vaysanal, Mr. Samrendra Kumar, Advocate for Respondent 1. Mr. Kirtiman Singh, CGSC with Ms. Vidhi Jain, Advocate for Respondent 2. The hearing has been conducted through hybrid mode (physical and virtual hearing)., An affidavit has been supplied to Mr. Kirtiman Singh, the learned Standing Counsel, by the Ministry of Finance, Department of Financial Services. He submits that perhaps another affidavit with better particulars could be filed. Therefore, he would need to take instructions especially in terms of paragraphs 3 to 8 of the previous order., The Debt Recovery Appellate Tribunal is informed that ordinarily over 100 cases were being listed before any Debt Recovery Tribunal in Delhi even before the Debt Recovery Tribunal at Allahabad. There would be no dispute to the fact that substantive disposal of cases would be impeded if simply the listed 100 cases were to be called out, only to be adjourned due to paucity of time. An affidavit has been filed on behalf of the respondent no.3, Department of Financial Services, Ministry of Finance, Government of India specifying the total number of pending cases and their corresponding monetary value before each of the three Debt Recovery Tribunals in Delhi as follows:, S. No. | Name of Debt Recovery Tribunal | OA Pending as on 14.11.2022 | Number of cases | Amount (Rs. in crore)\n1 | Debt Recovery Tribunal -1 Delhi | 6129 | 20278.92\n2 | Debt Recovery Tribunal -2 Delhi | 3247 | 25541.07\n3 | Debt Recovery Tribunal -3 Delhi | 2566 | 355836.27\nTotal | 11942 | 401656.26, What is evident from the above is that the large pendency needs to be addressed, in the first instance, by ensuring that the vacancies are promptly filled up so that the claimed monies are freed up to be made freely available in the stream of commerce for the augmentation of the economy. It cannot be possible for Debt Recovery Tribunal I, II and III having 6129, 3247 and 2566 cases respectively, to dispose of the cases in the six months time which is envisaged under section 19(24) of the Recovery and Debts and Bankruptcy Act, 1993 and three months time which is envisaged under section 17(5) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002., The data submitted by the Registrar, Debt Recovery Appellate Tribunal under the directions of this Tribunal on 22.11.2020 shows the pendency before the three Debt Recovery Tribunals as follows: Prior to the Gazette Notification dated 04.10.2022 Delhi Total number of cases 8104 4156 4634 Total amount involved (Rs. in crore) 186375.82 214028.58 97458.20. As per the above notification, Debt Recovery Tribunal -III, Delhi has been directed to try the cases of above Rs.100 crores and as per the data available, approximately total number of cases (OA/SA) of above Rs.100 crores will be 718 involving Rs.424025.41 crore. Debt Recovery Tribunal‑wise list of total number of pending OAs and SAs of Rs.100 crores and above at different Debt Recovery Tribunals under the jurisdiction of the Debt Recovery Appellate Tribunal, Delhi: No. of Cases | Amount (Rs. in crore)\nDebt Recovery Tribunal -II, Delhi | 09 | 2210.82\nDebt Recovery Tribunal -III, Delhi | 650 | 403019.56\nChandigarh | 0 | 0\nChandigarh | 16 | 2454.49\nChandigarh | 29 | 11122.81\nDebt Recovery Tribunal, Jaipur | 01 | 943.49. After the above Gazette notification, Debt Recovery Tribunals are in the process of transferring the cases to the respective Debt Recovery Tribunals in the light of change of jurisdiction and the exact figure can be ascertained only after completion of the process of transfer., The number of Tribunals presently functioning would need to be augmented to facilitate quicker disposal of roughly about 17,000 cases (16,894 to be precise), pending before the three Debt Recovery Tribunals in Delhi., The notification dated 04.10.2022 has been stayed by the Bombay High Court in W.P. (C) 11164/2022 on 17.11.2022; therefore, in the first instance, the pendency of number of cases before Debt Recovery Tribunal I, II and III will be taken as figures mentioned in the report from the Registrar, Debt Recovery Appellate Tribunal, Delhi. The pendency of cases is about 17,000 and for a claim value of Rs.497,861 lakh crores (USD 62 billion). With these figures in mind and in the larger public interest, the Government may consider urgently augmenting the number of Tribunals and equip them with adequate infrastructure to function efficiently and to discharge their duties., Mr. Sanjeev Bhandari, the learned Amicus Curiae, submits that presently Debt Recovery Tribunal II is not functioning and its additional charge has been handed over to Debt Recovery Tribunal III, thus doubting the pendency before Debt Recovery Tribunal III to 8,790 cases. Let the matter be examined by the Ministry of Finance apropos filling up of the vacancies as well as creation of additional Debt Recovery Tribunals. The learned Amicus Curiae submits that looking at the number of pending cases and fresh cases being filed, it would be in the fitness of things that at least ten Debt Recovery Tribunals be made functional in Delhi. He submits that space available on the third floor of the same building where the present Debt Recovery Tribunals are functioning i.e., 4th Floor, Jeevan Tara Building, Sansad Marg, Janpath, Connaught Place, New Delhi, Delhi 110001, the new Debt Recovery Tribunals if created could be located in the said vacant space., The learned Amicus Curiae states that about ten to fifteen Tribunals should be constituted and made functional in Delhi so as to address the pendency of cases as well as to adjudicate on the number of fresh cases being filed on a daily basis. He submits that this augmentation is especially necessary in the context of the time‑bound disposal of matters as envisaged in the relevant statutes., Let the Secretary of the Ministry of Finance, Department of Financial Services look into the matter apropos the issues highlighted and the concerns of the Tribunal and litigants, with respect to i) the provision of courtrooms and facilities amenable for efficient conduct of Tribunal proceedings and ii) augmentation of the number of Tribunals in the context of large pendency of cases and large quantum of monies lying locked in litigation. Let a comprehensive affidavit be filed by a Joint Secretary with prior approval of the Secretary of the said Department/Ministry., The learned Amicus Curiae has filed some photographs drawing our attention to the unfortunate physical state of the courtrooms of the three Debt Recovery Tribunals in Delhi. Some of the photographs are reproduced hereunder., The state of affairs shown in the photographs cannot be considered of a forum conducive to discharge of responsibility of adjudication by a Presiding Officer. It is more of a dump of files and records from which retrieval of cases would not be an easy task. Let the Registrar, Debt Recovery Appellate Tribunal file a Status Report apropos renovation work, if any, being carried out for recreation of the amenable courtrooms so as to facilitate the conduct of meaningful proceedings. The report shall also address i) the issue of storage/disposal of records of disposed‑off cases after digitisation of the same, as may be, as well as ii) the e‑filing of petitions. This report is sought in the context of the photographs showing that the files and records are stacked in courtrooms themselves and have taken up most of the space leaving hardly any space for lawyers and litigants to appear before a functional Tribunal., Renotify on 07.02.2023.
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Aboil alias Yugandhara, wife of Tejpal Patil, age 28 years, occupation Household, resident at care of Ravindra Eknath Patil, Plot-12, Gat 61, 3/2, Kolhe Nagar (West), Jalgaon, Taluka and District Jalgaon, is the petitioner. The respondent is Tejpal, son of Premchand Patil, age 36 years, occupation Service, resident of G-19, 4th Floor, Maymauli, Co‑Operative Housing Society, Ghoklewadi, in front of Nana Nani Park, near Gavdevi Temple, Manpada Road, Dombiwali (West), District Thane 421201. Mr. S. V. Deshmukh is the advocate for the petitioner and Mr. A. A. Nimbalkar is the advocate for the respondent., The rule is made returnable forthwith. With the consent of the parties, the matter is taken up for final hearing at the admission stage., By this petition petitioner assails order dated 04.12.2019 passed by the Judge, Family Court, Jalgaon thereby rejecting petitioner's application for grant of maintenance pendente lite under the provisions of Section 24 of the Hindu Marriage Act, 1955 (for short the Act, 1955)., Petitioner has instituted Petition A-334/2019 before the Family Court, Jalgaon seeking annulment of marriage with respondent. In that application, she filed application at Exhibit-7 under Section 24 of the Act, 1955 for grant of interim maintenance., The Family Court has rejected the application essentially on two counts: that petitioner possesses higher qualifications and that on her social media status, she had made declaration to the effect that she had secured a job in a company at London., Appearing for petitioner, Mr. Deshmukh the learned counsel would submit that mere possession of qualifications by petitioner could not have been a reason for denial of interim maintenance in the light of the position that petitioner is actually jobless. He would submit that capacity or ability to earn is different from actual earning. He would contend that petitioner has not been earning anything and despite the factum of absence of any job to petitioner being established before the Family Court, the application for interim maintenance has been erroneously rejected. In support of his contentions Mr. Deshmukh has relied upon judgment of the Supreme Court in Shailja and Another Vs. Khobbanna, 2017 DGLS (SC) 419, Order of the Rajasthan High Court in Smt. Megha Khandelwal and others Vs. Rajat Khandelwal & Others, Criminal Revision No. 408/2018 decided on 12.04.2018 and Order of the Supreme Court dated 10.05.2019 upholding the order passed by the Rajasthan High Court., So far as the declaration made by petitioner on social media is concerned, Mr. Deshmukh would contend that no material was placed on record by the husband to prove that petitioner actually received any employment or that she has been working in a particular company. He would submit that petitioner had randomly received an email offering her job and she has made declaration about the same on the social media platform. The offer was found to be a sham. Mr. Deshmukh has further relied upon the affidavit of assets and liabilities filed by husband to contend that he has been earning a monthly salary of Rs.1,33,377.51., Per contra, Mr. Nimbalkar the learned counsel appearing for respondent opposes the petition and supports the order passed by the Family Court. Relying on the judgment of Madhya Pradesh High Court in Mamta Jaiswal Vs. Rajesh Jaiswal, Mr. Nimbalkar would contend that if the wife is having ability and capability to earn, but sits idle, she cannot be awarded maintenance. He submits that petitioner possesses qualification of Masters in Engineering and is in a position to easily earn a job for herself. Therefore, no maintenance needs to be awarded to her. Referring to the printouts taken from the account of petitioner of Facebook and Whatsapp, Mr. Nimbalkar would contend that petitioner was not only offered employment in a UK based company having salary of 2000 pounds, but various reactions given by her to messages congratulating her would indicate that she had indeed accepted the job offer., Mr. Nimbalkar would further contend that petitioner has unjustifiably withdrawn from the company of the husband within four months of marriage and has levelled reckless allegations of impotency against respondent. He would submit that respondent has no other person to maintain, as no child is born to the couple out of the said wedlock. He would further submit that the mother of petitioner is politically connected and that petitioner has accepted certain political engagements indicating thereby she has sufficient sources of income generation. He would submit that respondent has obtained a personal loan of Rs.15,00,000 for which he is required to pay EMI of Rs.33,000. Inviting my attention to the cross‑examination of petitioner conducted before the Family Court on 28.06.2022 he would submit that she admitted in cross‑examination that the offer of appointment issued to her was fake. Mr. Nimbalkar would therefore submit that she indulged in conduct of posting a fake letter of appointment and, considering such conduct, this High Court should be loath to grant any equitable relief in her favour. He prays for dismissal of the petition., Rival contentions of the parties now fall for my consideration., The Family Court has proceeded to reject petitioner's application for interim maintenance essentially on two counts of possession of higher qualifications and declaration made by her on social media platform. It would be profitable to reproduce some of the observations recorded by the Family Court while rejecting petitioner's application for interim maintenance: The respondent relied on WhatsApp status and Facebook post of the petitioner to show that she got an employment at London. The copies of her WhatsApp and Facebook status are also filed on record. However, such post itself is not sufficient to make out a case with regard to employment of the petitioner, but at the same time, it is pertinent to mention that in the era of social media, people have a habit to share their emotions, developments, their present state of mind through social media. In such circumstances, considering the qualification and social media status of the petitioner with regard to getting employment, cannot be ruled out. Further, as per the observations in the case of Mamta (supra), the petitioner being highly educated is not expected to keep herself idle and seek maintenance from the respondent., Thus the findings recorded by the Family Court would indicate that it did not arrive at a definitive conclusion that petitioner actually secured employment or that she has been working on the post in consequence to the offer of appointment which was put on the social media platform. However, considering her qualifications, the Family Court has raised a presumption that the possibility of her securing a job could not be ruled out. This finding in my opinion appears to be totally erroneous. The Family Court itself has recorded a finding that mere publication of a post on social media platform is not sufficient to make out a case with regard to the employment of petitioner. Having held so, the Family Court ought not to have raised a presumption she secured an employment, just because she possesses higher qualifications., Apart from the social media post, respondent has not put on record any other concrete material to prove that petitioner actually secured any employment or she has been working and earning. If petitioner is indeed working, respondent could have produced the relevant papers showing proof of income earned by her in the form of bank statement, Income Tax Returns etc. However, nothing of that sort is placed on record. It would therefore be safe to assume that petitioner is not engaged in any employment and has not been earning any income for herself., Respondent‑husband has accused the petitioner‑wife of indulging in the undesirable act of posting a fake letter of appointment on social media and urged before me to deny any relief to her on account of her conduct. He has particularly invited my attention on the reactions given to her post by her friends and relatives and her acknowledgement and reciprocation of congratulatory messages. He has also invited my attention to her mother’s message on social media platform confirming the job offer to her daughter. It is submitted that either the information shared on social media platform should be accepted as true or, if the information is false, she should be denied any relief in exercise of extraordinary jurisdiction by this High Court. No doubt, the act of petitioner‑wife in posting the letter of appointment, which she later claims to be fake, on social media platform is not commendable and she should have restrained herself from doing so without first verifying the genuineness of the offer. It is difficult to determine at this stage whether she was actually deceived or was merely attempting to gain praises and popularity on social media platforms by posting factually incorrect information. In absence of any concrete proof of actual employment, an inference cannot be drawn that the offer actually fructified in a job for her. Having arrived at a conclusion that the petitioner‑wife is actually not employed, in my view, the doors of the Courts cannot be shut on her, even if her conduct may not be completely free from blemish., Coming to the aspect of ability and capability of petitioner to earn income for herself, no doubt she possesses qualifications of Masters of Engineering. In Mamta Jaiswal Vs. Rajesh Jaiswal (supra) relied upon by Mr. Nimbalkar the Madhya Pradesh High Court has held as under: In view of this, the question arises, as to in what way Section 24 of the Act has to be interpreted: Whether a spouse who has capacity of earning but chooses to remain idle, should be permitted to saddle the other spouse with his or her expenditure? Whether such spouse should be permitted to get pendente lite alimony at a higher rate from the other spouse in such condition? According to me, Section 24 has been enacted for the purpose of providing monetary assistance to such spouse who is incapable of supporting himself or herself in spite of sincere efforts made by him or herself. A spouse who is well qualified to get the service immediately with less effort is not expected to remain idle to squeeze out, to milk out the other spouse by relieving him of his or her own purse by a cut in the nature of pendente lite alimony. The law does not expect the increasing number of idle persons who, by remaining in the arena of legal battles, try to squeeze out the adversary by implementing the provisions of law suitable to their purpose. In the present case Mamta Jaiswal is a well‑qualified woman possessing qualifications like M.Sc., M.C., M.Ed. Till 1994 she was serving in Gulamnabi Azad Education College. It impliedly means that she was possessing sufficient experience. How such a lady can remain without service? It really puts a big question which is to be answered by Mamta Jaiswal with sufficient consistent and believable evidence by proving that in spite of sufficient efforts made by her, she was not able to get service and, therefore, she is unable to support herself. A lady who is fighting a matrimonial petition filed for divorce cannot be permitted to sit idle and put her burden on the husband for demanding pendente lite alimony from him during pendency of such matrimonial petition. Section 24 is not meant for creating an army of such idle persons who would be sitting idle waiting for a ‘dole’ to be awarded by her husband who has a grievance against her and who has gone to the Court for seeking a relief against her. The case may be vice versa also. If a husband well qualified, sufficient enough to earn, sits idle and puts his burden on the wife and waits for a ‘dole’ to be awarded by remaining entangled in litigation, that is also not permissible. The law does not help indolents as well as idles; it also does not want an army of self‑made lazy idles. Everyone has to earn for the purpose of maintenance of himself or herself, at least, has to make sincere efforts in that direction. If this criterion is not applied, if this attitude is not adopted, there would be a tendency growing amongst such litigants to prolong such litigation and to milk out the adversary who happens to be a spouse, once dear but far away after an emerging of litigation. If such an army is permitted to remain in existence, there would be no sincere efforts of amicable settlements because the lazy spouse would be very happy to fight and frustrate the efforts of amicable settlement because he would be reaping the money in the nature of pendente lite alimony, and would prefer to be happy in remaining idle and not bothering himself or herself for any activity to support and maintain himself or herself. That cannot be treated as the aim or goal of Section 24. It is indirectly against the healthiness of society. It has been enacted for needy persons who, in spite of sincere efforts and sufficient effort, are unable to support and maintain themselves and are required to fight out the litigation jeopardising their hard‑earned income by toiling working hours., However, Mamta Jaiswal (supra) was filed seeking enhancement of maintenance. In that judgment, the husband was earning a salary of Rs.5,852 and wife was awarded maintenance of Rs.800, of which she sought enhancement. While dealing with the issue of enhancement, the learned Single Judge of the Madhya Pradesh High Court made the aforementioned observations in paragraph no.6 of its judgment. Thus Mamta Jaiswal (supra) cannot be said to have laid down a law that a wife is not entitled to any maintenance merely on account of possession of higher qualifications. Also of relevance is the fact that in Mamta Jaiswal (supra), the wife was working in college till the year 1994 and that aspect has also been taken into consideration by the High Court while dismissing the petition seeking enhancement of maintenance. In the present case, it is not the case of respondent that petitioner was previously employed and was earning any income., Mr. Deshmukh has relied upon the decision of the Apex Court in Shailja (supra), in which it is held: We are not satisfied with the order passed by the High Court considering the income of the respondent husband, which we have been told, is more than Rs.80,000 per month since the respondent husband is a Senior Lecturer in college. It is stated by learned counsel for the appellants that the respondent husband is also the owner of 26 acres of irrigated land., Thus the Apex Court has made distinction between capability to earn and actually earning. It is held that merely because the wife is capable of earning, the same cannot be a reason to reduce maintenance awarded by the Family Court., In Megha Khandelwal (supra) the Rajasthan High Court was concerned with the issue of enhancement of maintenance awarded to the wife. The petition for enhancement was opposed by placing reliance on qualification of degree of M.Sc. (Biotechnology) and preparation for PHED by the wife. Despite this, the High Court proceeded to enhance the maintenance from Rs.5,000 to Rs.9,000. The matter was carried before the Apex Court by the wife which was pleased to further enhance the maintenance to Rs.25,000., The position of law thus appears to be that mere possession of qualifications by a wife who is admittedly not employed cannot ipso facto be a reason to deny interim maintenance altogether., The respondent husband has failed to prove that petitioner is actually employed. The political position allegedly occupied by her mother is totally irrelevant. Also of irrelevance are the documents produced by respondent to show that petitioner herself is allegedly occupying some political post., Coming to the income of husband, in the affidavit of assets and liabilities filed by him, he has declared his monthly income as Rs.78,598. He is employed on the post of Technical Consultant in Hitachi Vantara. He has also placed on record his salary certificate showing gross salary of Rs.76,750 for the month of April 2019. The salary certificate shows that after statutory deductions, the net salary receivable is Rs.66,050. Also placed on record by respondent husband is his bank statement. Petitioner has relied upon one of the entries relating to the month of August 2018 in support of her contention the salary earned by respondent husband is Rs.1,33,377. One stray entry in the bank statement, in my opinion, cannot be indicative of the exact salary earned by respondent husband. There is no reason to disbelieve the salary certificate placed on record by respondent husband as well as the statement made in his affidavit of assets and liabilities showing that his monthly gross salary is Rs.76,750., Taking conspectus of the overall position of petitioner being unemployed, possession of higher qualifications by her on the strength of which she could make an endeavour to secure a job as well as net monthly income of husband as Rs.66,050, I am of the view that ends of justice would be met if petitioner is awarded interim maintenance of Rs.7,500 during the pendency of the proceedings before the Family Court., The proceedings before the Family Court are pending since the year 2019. It appears that the evidence of petitioner is in the process of being recorded. In these circumstances, it would be necessary in the interest of justice to expedite the proceedings pending before the Family Court. I, therefore, proceed to pass the following order:, A. The order dated 04.12.2019 passed by the Family Court, Jalgaon on application at Exhibit‑7 in Petition A‑334/2019 is set aside. Respondent husband is directed to pay interim maintenance of Rs.7,500 per month to petitioner wife from the date of filing of Petition A‑334/2019. The respondent husband to pay arrears of maintenance to petitioner wife within a period of two months from today., B. Hearing of Petition A‑334/2019 is expedited and the Family Court is requested to make an endeavour to decide the same as expeditiously as possible and preferably within a period of six months from today. Both the parties shall cooperate in earlier disposal of the Petition A‑334/2019 and shall not seek any unnecessary adjournments., C. With the above directions the petition is partly allowed. Rule made partly absolute in the above terms. Devendra/November‑2022.
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Through: Ms. Samridhi Arora, Advocate, along with Ms. Sanjana, Advocate, versus Ms. Avni Singh, Advocate, Sub-Inspector Rajat Malik, Police Station Dwarka North., The present application has been filed under Section 151 of the Code of Civil Procedure, 1908 seeking necessary directions from the Delhi High Court to prevent harassment of the bachelor tenants and to preserve the audio and video of CCTV footage of Classic Apartment, Bairwa Bharti CGHS Limited, Dwarka, New Delhi., It is submitted that on 4 January 2023 at around 12 p.m., in cold winter weather, the managing committee members of the society, including the security guards, did not allow the bachelor tenants to enter the society. Similarly, a female bachelor tenant from the North East faced harassment due to comments from the society gate and managing committee members who criticized her for not knowing Hindi., The applicant prays for the preservation of the CCTV video footage of 4 and 5 January 2023 and submits that despite the stay order dated 30 January 2024, the harassment continues., Issue notice to the non‑applicants. Let reply be filed within four weeks. Rejoinder, if any, be filed within one week thereafter., Since August 2022, the respondents have stopped the tenants of the society on various occasions. The conduct of the respondents is implicitly and constructively creating a discriminatory environment to make the bachelors vacate the society flats. The discriminatory treatment involves requiring the bachelor tenants to sign the register multiple times a day upon entering the society, a requirement not imposed on other residents., Learned counsel appearing for the Sub‑Inspector, Dwarka (North), submits that although the Sub‑Inspector is not a party before the Delhi High Court, in order to monitor the situation, the Court directed his presence by order dated 11 March 2024. He may be granted time to file an appropriate updated status report within a period of four weeks., List the matter on the date already fixed, i.e., 13 August 2023.
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High Court of Himachal Pradesh Criminal Miscellaneous Petition Nos. 79 and 84 of 2024 Criminal Writ Petition No. 14 of 2023 Reserved on: 05.01.2024 Pronounced on: 09.01.2023 Versus Respondents Coram: Honorable Mr. Justice M. S. Ramachandra Rao, Chief Justice. Honorable Ms. Justice Jyotsna Rewal Dua, Judge. Whether approved for reporting? Amicus curiae: Mr. Neeraj Gupta, Senior Advocate with Mr. Vedhant Ranta, Advocate. For the respondents: Mr. Anup Rattan, Advocate General with Mr. Rakesh Dhaulta and Mr. Pranay Pratap Singh, Additional Advocate Generals, and Mr. Sidharth Jalta and Mr. Arsh Rattan, Deputy Advocate Generals, for respondent No. 1 and 3. Mr. Sanjay Jain, Senior Advocate through Video Conference with Mr. Arjun Lall, Mr. Aakash Thakur and Mr. Aakarsh Mishra, Advocates for Mr. Sanjay Kundu (respondent No. 4). Mr. Shrawan Dogra, Senior Advocate with Mr. Tejasvi Dogra, Advocate for Ms. Shalini Agnihotri (respondent No. 5)., The order dated 26.12.2023 in Criminal Writ Petition No. 14 of 2023 directed the State of Himachal Pradesh represented by its Principal Secretary, Home II (respondent No. 1) to take steps at the earliest to move Shri Sanjay Kundu, the then incumbent holding the post of Director General of Police, Himachal Pradesh, and Ms. Shalini Agnihotri, the then incumbent holding the post of Superintendent of Police, Kangra at Dharamshala (respondent No. 2) to other posts where they would not have any opportunity to influence the investigation in (i) the FIR No. 55/2023 registered by the Mcleodganj Police Station, District Kangra at the instance of a businessman named Nishant Sharma against unknown persons under Sections 341, 504, 506, 34 of the Indian Penal Code on the basis of an email/complaint dated 28.10.2023 made by Nishant Sharma and (ii) FIR No. 98/2023 dated 4.11.2023 registered by Shri Sanjay Kundu in Police Station East, Shimla, District Shimla. The listing of the case was directed again on 4.1.2024., The order dated 3.1.2024 of the Supreme Court of India in Special Leave Petition (Criminal) No. 129 of 2024 was challenged by Shri Sanjay Kundu before the Supreme Court (Special Leave Petition Diary No. 54019/2023). He contended that he was not impleaded as a party in the Criminal Writ Petition No. 14 of 2023 and he was not heard by the Bench to rebut the allegations made against him in the email dated 28.10.2023 of Nishant Sharma. The Special Leave Petition was disposed of on 3.1.2024 by the Supreme Court agreeing with his contention, and granting him liberty to move this Court when proceedings are taken up on 4.1.2024 with an application for recall of the order dated 26.12.2023. The Supreme Court directed the High Court of Himachal Pradesh to decide the recall application within two weeks. Till it was disposed of, the Supreme Court stayed the direction for the transfer of Shri Sanjay Kundu from the post of Director General of Police. It also directed that no steps shall be taken to enforce the consequential order issued on 2.1.2024 by the State Government posting him as Principal Secretary (Ayush), Government of Himachal Pradesh., When the Criminal Writ Petition No. 14 of 2023 was listed on 4.1.2024, it was informed that recall petition No. Criminal Writ Petition No. 79 of 2024 was filed by Shri Sanjay Kundu. The Bench was also informed that Ms. Shalini Agnihotri, the Superintendent of Police, Kangra District at Dharamshala filed (a) Miscellaneous Petition No. 74 of 2024 to implead her in her personal capacity and (b) Miscellaneous Petition No. 84 of 2024 to recall the order dated 26.12.2023 passed in Criminal Writ Petition No. 14 of 2023 by this Bench to move her out of the post of Superintendent of Police, Kangra District at Dharamshala. The State Government had not implemented the order dated 26.12.2023 concerning Ms. Shalini Agnihotri as on date and did not move her out of the said position. This Court directed these applications to be listed on 5.1.2024 for hearing having regard to the fact that this Court would be having a winter vacation from 13.1.2024 till 25.2.2024 and there were only five working days for hearing the matter and for pronouncing orders therein, and the Supreme Court had fixed two weeks time for disposal of the recall petition of Shri Sanjay Kundu., A supplementary status report dated 4.1.2024 was filed by the Superintendent of Police, Shimla through the Advocate General, High Court of Himachal Pradesh. A copy of the same was served on the counsel on record for Shri Sanjay Kundu and Ms. Shalini Agnihotri on 4.1.2024 itself on the direction of this Bench. This status report has an important bearing on our decision in these applications., The Bench suo motu impleaded Shri Sanjay Kundu, Indian Police Service, in his personal capacity as respondent No. 4. Miscellaneous Petition No. 74 of 2024 filed by Ms. Shalini Agnihotri was also allowed and she was impleaded as respondent No. 5 in this Criminal Writ Petition. The recall applications Miscellaneous Petition Nos. 79 and 84 of 2024 filed by the said individuals were heard almost for the whole day by this Bench from 11 a.m. to 4 p.m. and orders were reserved. To avoid repetition, we shall discuss the submissions of the respective parties at the appropriate place while making appropriate observations and findings necessary for the disposal of these applications., At the outset Sanjay Jain, Senior Counsel (for Shri Sanjay Kundu) and Shri Shrawan Dogra, Senior Counsel (for Ms. Shalini Agnihotri) highlighted the academic achievements and important milestones in the careers of their respective clients and stated that their careers had been unblemished all through, but the High Court of Himachal Pradesh order dated 26.12.2023 passed by us in Criminal Writ Petition No. 14 of 2023 damages their respective reputations and careers. Shri Sanjay Jain, Senior Counsel stated that his client Shri Sanjay Kundu is due to retire in three months’ time and he would want to leave service with a clean image. Shri Dogra stated that his client Ms. Shalini Agnihotri had a long career ahead of her. Both therefore tried to impress this Court that as the order dated 26.12.2023 was passed behind the back of their respective clients, it ought to be recalled. They even offered to let the investigation into the above FIRs be done by an outside agency such as the Central Bureau of Investigation established under the Delhi Police Establishment Act, 1946., Shri Sanjay Jain, Senior Counsel for Shri Sanjay Kundu stated that his client had been contacted on 9.10.2023 by the practicing Senior Advocate K. D. Shridhar (referred to as Y in the previous order dated 26.12.2023 passed by this Bench), an old acquaintance of his, who had a business dispute with Nishant Sharma, and told him that business disputes between them had taken an ugly turn and the latter had made certain scurrilous allegations against him (K. D. Shridhar) in an email dated 9.10.2023 and implored Shri Sanjay Kundu to take action against Nishant Sharma. The High Court of Himachal Pradesh contended that in good faith and motivated by principles of police‑led mediation, Shri Sanjay Kundu, as Director General of Police, undertook to look into the issue; and when he got time on 27.10.2023, he asked his private Secretary Rakesh Gupta to contact Nishant Sharma over the phone through the official land line, on the number given by the latter in his email dated 9.10.2023 sent to K. D. Shridhar. He admitted that despite many attempts he was informed by his Private Secretary that Nishant Sharma could not be reached. Fifteen missed calls were admittedly made to the mobile of Nishant Sharma from the land line of the office of the Director General of Police on the morning of that day. He stated that in the afternoon on 27.10.2023, his office received a call from Nishant Sharma. He admitted that he requested Nishant Sharma to come to Shimla, but he refused, saying that he was going to Malaysia with his family. Counsel stated that the conversation between Nishant Sharma and Shri Sanjay Kundu was cordial, and that thereafter Shri Sanjay Kundu neither had any meeting nor any telephonic contact with Nishant Sharma., This is strongly contested by the complainant Nishant Sharma, who appeared in person. He stated that Shri K. D. Shridhar and his brother, by using their high connections, were trying to intimidate him through the Director General of Police and force him to sell his and his father’s shares in the private company named M/s High Court of Himachal Pradesh Chamunda Laboratories and Projects Private Limited. He contended that having failed in a takeover bid by process of Company Law, they have resorted to (a) intimidation by using gangsters to attack him and his family and terrorize them so as to force a settlement and (b) also pressurize him to sell his family’s shares in the said company by having him threatened through influential people like Shri Sanjay Kundu. He alleged that during their phone conversation on 27.10.2023, Shri Sanjay Kundu spoke in a threatening tone and forcefully insisted that he should come to Shimla and talk to him., It would be difficult for this Court to state which version is correct, but we may point out that courts in our country have repeatedly laid down that police officers cannot interfere in civil disputes. A Division bench of the Andhra Pradesh High Court held in Government of Andhra Pradesh and Others versus Palla Venkata Ratnam and Others, paragraph 56, that the Supreme Court and this Court have repeatedly laid down that police officers cannot interfere in civil disputes. If an allegation is made that an officer of the rank of Sub‑Divisional Police Officer is involved in settling civil disputes and demanded illegal gratification for the same, it is the primary duty of the immediate controlling authorities as well as the Director General of Police as the head of the police department to act promptly and take necessary action., In Sudershan versus Director General of Police and Others, the Andhra Pradesh High Court held that the point that arises for consideration is whether the action of the second respondent in calling the petitioner, who is a medical practitioner, to the office of the second respondent without registering any crime, and asking him to produce the accounts relating to the nursing home in the process of deciding an alleged dispute between the third respondent and the petitioner, is in violation of Articles 19(1)(g) and 21 of the Constitution of India. It is also relevant to mention that the police can only investigate crimes and call any person who can be a witness in that case, and examine the person connected with the crime or the accused, to collect evidence. At the same time, the police have no power or jurisdiction to deal with civil disputes unconnected with criminal action. In the present case, even if it is taken that the third respondent is entitled to receive the amount, without prejudice to the contention of the petitioner, the same is purely of civil nature and the remedy of the third respondent is to file a suit for the recovery of the amount. When the action to be taken by the third respondent is purely of civil nature, the second respondent has no jurisdiction to decide the claim of the third respondent as a police officer. It is also apposite to notice that a police officer’s deciding a civil dispute amounts to exercising colourable authority which is not vested in him under law. This was also reiterated in S. Ranjan Raju versus State of Odisha. The Orissa High Court observed..., This Court is regularly witnessing a worrisome trend of increasing instances of abuse of the process of law by litigants seeking to settle civil disputes, using the criminal law machinery. A general notion prevalent in the mind of an average litigant is that if a person could somehow be involved in a criminal prosecution, there are high chances of imminent settlement. Any effort to settle a civil dispute which does not involve any criminal offence, by applying pressure through criminal prosecution should be discouraged., The Superintendent of Police, Shimla in his status report dated 15.12.2023 stated at paragraph 5F that involvement of high‑profile officers of the police force and criminal gangs to settle dispute between partners by forcing one partner for the purpose with means of extortion, criminal design as alleged by the complainant, cannot be ruled out., In paragraph 4(a) of his recall application, Shri Sanjay Kundu states that the applicant has no prior relationship, acquaintance or interaction with Nishant Sharma. How a senior police officer like Shri Sanjay Kundu, who ought to be aware of the legal position that his interference in a civil dispute between shareholders of a private company is highly improper, thought he should intervene and mediate between K. D. Shridhar and Nishant Sharma (with whom he had no prior acquaintance) and settle their disputes, we are unable to comprehend. This conduct cannot be said to be within his line of duty prima facie., Moreover, Shri K. D. Shridhar is admittedly a Senior Advocate practicing in this High Court of Himachal Pradesh with considerable knowledge and experience. He is not a poor man suffering any disadvantage and can certainly avail remedies available to him at law to resolve his disputes with Nishant Sharma and his father and does not need Shri Sanjay Kundu’s intervention. At request of such a person, the attempt of Shri Sanjay Kundu, Indian Police Service to settle the dispute seems to be a colourable exercise of his power and authority prima facie., In his status report dated 15.12.2023, the Superintendent of Police, Shimla had stated at paragraph 7(o) that CDR analysis of Shri K. D. Shridhar’s mobile phone number 9816025857 reveals his contact with 9818153766 which is the mobile number of Shri Sanjay Kundu, the Director General of Police according to CAF details. He stated at paragraph 8(b) that there were nine such calls in September, October and November 2023 and the longest conversation was on 25.10.2023 for 256 seconds. This was two days before the Mcleodganj incident alleged by Nishant Sharma. Thus the continued interaction between Shri Sanjay Kundu and Shri K. D. Shridhar for over three months suggests more than a mere acquaintance, and possibly a longer association or friendship between them., The Superintendent of Police, Shimla also stated in his status report dated 16.11.2023 that on 27.10.2023, the Station House Officer, Palampur, Sandeep Sharma posted a WhatsApp message from his mobile number 82192‑82766 to Nishant Sharma to call the Director General of Police, and that the said message reads: ‘Nishant ji, Call on this land line 01772626222, DGP Sir, wants to talk to you.’ The screenshot of this message is annexed as Annexure R/3‑6 to his status report. There is no reference to this WhatsApp message in the recall petition filed by Shri Sanjay Kundu., In paragraph 6 of his recall application, Shri Sanjay Kundu even admitted to have placed the Hotel Sai Gardens run by Nishant Sharma in September 2023 under surveillance for alleged drug‑running activities. None of these circumstances is disputed by Shri Sanjay Jain, counsel for Shri Sanjay Kundu. He also admitted that Shri Sanjay Kundu, Director General of Police had filed FIR No. 98/2023 dated 4.11.2023 at Shimla East Police Station against Nishant Sharma alleging defamation by the latter., We had relied on all these circumstances i.e. (a) that there were contacts between Shri Sanjay Kundu and Shri K. D. Shridhar, (b) that Shri Sanjay Kundu had persistently attempted to call Shri Nishant Sharma, (c) that Shri Sanjay Kundu had placed the hotel run by Nishant Sharma under surveillance and (d) Shri Sanjay Kundu had filed FIR No. 98/2023 at Shimla East Police Station against Nishant Sharma, as circumstances warranting the passing of the order dated 26.12.2023 directing the State of Himachal Pradesh to move him out of the Director General of Police position he was holding. In view of the above undisputed facts, this Court had no choice but to pass the order dated 26.12.2023 since the State Government did nothing in the matter., The status report dated 4.1.2024 of the Superintendent of Police, Shimla stated: (1) During the course of investigation of FIR No. 98/2023 dated 4.11.2023 under Sections 211, 469, 499, 500 and 505 of the Indian Penal Code registered in Police Station East, District Shimla, Himachal Pradesh, the Investigating Officer, Amit Thakur, Deputy Superintendent of Police (Law and Order), Shimla visited the office of the Director General of Police, Himachal Pradesh. During the course of investigation, in the office of the Director General of Police, the tone and manner of the Director General of Police was not only intimidating but also impeding the investigation. The Director General of Police, Sanjay Kundu, in a forceful manner stated that whatever the investigating officer has done and is doing will have consequences., (2) It is pertinent to submit that the matter above, the report of the Investigating Officer was also brought to the knowledge of the Principal Secretary (Home) to the Government of Himachal Pradesh vide letter No. 115811 dated 28.12.2023. (4) That it is most humbly submitted that the investigation done till date, on the basis of material evidences collected, in terms of real, physical and electronic, are sufficiently corroborating as well as point a needle of suspicion strongly towards the role playing of Director General of Police, Sanjay Kundu, in the commission of the crime alleged by the complainant in the Daily Diary No. 78 dated 4.12.2023 of Police Station East, Shimla, District Shimla and imputations leveled in FIR No. 98/2023 dated 4.11.2023., Exhibit R1 to this status report is the detailed complaint made by the Deputy Superintendent of Police, Shimla to the Superintendent of Police, Shimla mentioning the intimidating behavior of the Director General of Police on 14.12.2023 when he went to question him as part of his investigation in the complaint filed by the Director General of Police against Nishant Sharma. Exhibit R2 dated 28.12.2023 to this report is the letter written by the Superintendent of Police, Shimla to the Principal Secretary, Home, Himachal Pradesh enclosing the copy of the above complaint of the Deputy Superintendent of Police. The Superintendent of Police, Shimla in this letter stated that the investigating officer needs to be insulated from the authority and undue influence of the Director General of Police; that there is every apprehension that the Director General of Police, being in the centre of the command in the Police Department, may implicate or cause harm in any manner to the officers in the chain of investigation. Therefore there is need to take serious note of the matter against the erring officer mentioned above under the All India Services (Discipline and Appeal) Rules, 1969. He stated that otherwise the investigation process will not be able to reach or trace the truth., It is probably this material, along with the order dated 26.12.2023 passed by us, which prompted the State Government to shift Shri Sanjay Kundu out of the post of Director General of Police, Himachal Pradesh and post him as Principal Secretary (Ayush), Government of Himachal Pradesh on 2.1.2024. When we passed the previous order dated 26.12.2023, we were only concerned whether there is a real likelihood of bias, but when such specific instance of intimidating the Investigating Officer comes to light, indicating actual interference with the process of investigation, would it be safe to let Shri Sanjay Kundu continue to be the Director General of Police, Himachal Pradesh? Should this Court, under the pretext of protecting the reputation of the officers concerned, forget its constitutional responsibility of ensuring fair investigation in the matter? We think not. There cannot be a fair trial without fair investigation., In Dharam Pal versus State of Haryana, the Supreme Court has underscored the imperativeness of ensuring a fair and impartial investigation against any person accused of commission of a cognizable offence as the primary emphasis is on instilling faith in the public at large and the investigating agency., When the Court asked Senior Counsel Sanjay Jain representing Shri Sanjay Kundu for his response to the material contained in the status report dated 4.1.2024 filed by the Superintendent of Police, Shimla, he contended that the official had malafide intention on account of certain infractions committed by the official in the past year, and the Director General of Police had written to the State Government seeking action against the official. Some of the allegations are set out in paragraph 7 of his recall petition. He alleged that the Superintendent of Police, Shimla twisted facts and misrepresented them to show the Director General of Police in poor light in his status reports., The Advocate General took strong objection to these allegations leveled against the Superintendent of Police, Shimla and pointed out that in the investigation of FIR No. 98/2023 at Shimla (East) Police Station lodged by Shri Sanjay Kundu against Nishant Sharma, the Superintendent of Police, Shimla is not the Investigating Officer. The Deputy Superintendent of Police (Law and Order), Shimla, Shri Amit Thakur, is the Investigating Officer; and that the Superintendent of Police, Shimla was merely filing status reports in the matter on the instructions issued by Shri Amit Thakur. We find force in this contention., The Advocate General appearing for the State of Himachal Pradesh strenuously opposed the plea of Shri Sanjay Kundu to recall the order dated 26.12.2023 passed by this Court and stated that the allegations leveled by Shri Sanjay Kundu against the Superintendent of Police, Shimla ought not to have been made and there is no merit in his recall application. The scope of this Writ Petition is to ensure fairness of investigation in the FIRs, and not to probe conduct of officials unrelated to the incidents/events alleged in the FIRs. The material collected by the Investigating Officer cannot be scrutinized in these proceedings and opinion on the veracity thereof cannot be expressed by us. If after conclusion of the investigation, a charge sheet is filed in a criminal court against certain accused persons, during trial only the said Court can go into the material and draw any conclusion as per law. Such accused will get full opportunity at the trial to rebut or question the validity and authenticity of the prosecution case. If we were to express any opinion on the said material it would amount to giving an advance ruling on it, and might cause irreparable injustice. Therefore in our opinion, no case has been made by Shri Sanjay Kundu for recall of the order dated 26.12.2023 passed by this Court., Now we shall deal with the pleas raised by Shri Shrawan Dogra appearing for Ms. Shalini Agnihotri, Superintendent of Police, Kangra (in her individual capacity). She had been impleaded as respondent No. 2 in the Criminal Writ Petition in her official capacity and as respondent No. 5 in her personal capacity. In the order dated 26.12.2023, concerning the said officer, we had noticed the following: The failure of respondent No. 2 to act on the complaint made on 28.10.2023 immediately, register an FIR and investigate the same is not explained by respondent No. 2. The FIR was registered belatedly on 16.11.2023 after this Court entertained the Criminal Writ Petition. There is no explanation offered by respondent No. 2 as to why the material mentioned in the status reports of respondent No. 3 is not being utilised to probe deeper into the issues as seems to be warranted., Shri Shrawan Dogra, Senior Counsel appearing for the said officer submitted that she is not directly the investigating officer in the case relating to FIR No. 55/2023 at Police Station Mcleodganj, Kangra District. According to him, she did not know Nishant Sharma or the parties against whom he had filed the complaint and that to the best of her ability, she had taken her independent decision in the matter without any influence or interference from her superior officers in hierarchy. He placed reliance on a list of dates and events supplied by him (which were not furnished to any of the other parties)., We shall scrutinize her course of conduct between 28.10.2023 till 16.11.2023 to see what she did regarding the complaint dated 28.10.2023 of Nishant Sharma (which she admittedly received through her email on that very day), and how she did the said actions. (a) In the first status report dated 16.11.2023 filed by Ms. Shalini Agnihotri, as the Superintendent of Police, Kangra, she stated that on receipt of the email dated 28.10.2023 from Nishant Sharma about the incident which occurred on 27.10.2023 at Mcleodganj, considering its seriousness, she issued directions to the In‑charge Security Branch for discreet verification of the facts and ascertaining the truth of the contents of the email. Exhibit R‑2 dated 29.10.2023 is the letter addressed by her to the official. The letter reveals that she had asked him to put up a brief report within a week to her. Considering the plea of threat to life made by Nishant Sharma and her claim that she treated it as a serious one, why she had granted a week instead of a shorter time is not explained by her., She also enclosed Exhibit R‑4, a letter dated 31.10.2023 addressed by her to Nishant Sharma mentioning that his complaint was dated 30.10.2023 (this date given by her is wrong; he had sent it to her through an email dated 28.10.2023), that he had apprehension of threat to life and property from someone, that he had tried to meet her but could not do so (Nishant Sharma stated that he went to the residence of the Superintendent of Police, Kangra on 28.10.2023, but she was not available and having waited for a long time to meet her, he returned to his house at Palampur), and he should meet her in her office on 1.11.2023. This letter was written by her on the third day after she received the complaint on 28.10.2023., She filed Exhibit R‑6 dated 6.11.2023 addressed by her to the Station House Officer, Police Station, Mcleodganj asking him to check all CCTV cameras in the location of the incident or in the vicinity discreetly, ascertain additional information and submit a brief report to her within a week. Thus she gave him time till 13.11.2023 for collection of this data, i.e., fifteen days after the date of incident on 27.10.2023. She could have asked him to collect them and send them to her sooner. This letter dated 7.11.2023 was also issued by her almost nine days after she received the complaint dated 28.10.2023 and ten days after the incident on 27.10.2023. This action should have been taken sooner since there was a risk that CCTV footage would automatically get erased after a brief period of about seven to fourteen days., She also filed Exhibit R‑7 dated 7.11.2023 addressed by her to the Sub‑Divisional Police Officer, Palampur stating that since Nishant Sharma hails from Palampur, he should ensure safety and security, act promptly in response to any inputs regarding threat to him, and also keep a sharp vigil and surveillance at his Hotel Sai Gardens. It was thereafter that a general diary entry was made on 8.11.2023 at Police Station Palampur, but not even such entry was made at Police Station Mcleodganj within whose jurisdiction the alleged incident occurred. Why she had not instructed the SHO, Mcleodganj to register the FIR and start investigation even then is inexplicable., Nishant Sharma, party‑in‑person, contended that despite his email dated 28.10.2023 to Ms. Shalini Agnihotri, the Superintendent of Kangra, he received no phone call from the Police Station at Mcleodganj under her jurisdiction for the next two weeks and his family was petrified. This assertion is not denied by counsel for Ms. Shalini Agnihotri. When he met her on 1.11.2023 as per her instructions and briefed her about the details of the occurrence on 27.10.2023, Ms. Shalini Agnihotri said ‘Now what should we do?’ He contended that this tepid reaction demoralized him since she appeared not to know how to proceed even after being told the details. He denied the statement in her status report dated 16.11.2023 that he did not give such details to her. He stated that she was mostly inaccessible despite several attempts made by him to contact her even through email and she had called him on phone only once on 7.11.2023., CCTV footage of the attack made at Gurugram on 25.8.2023 was sent by him to the Superintendent of Police, Kangra, the Superintendent of Police, Shimla and other high officials (referred to as paragraph 2 (Exhibit R‑3/1) to his status report dated 16.11.2023 of Superintendent of Police, Shimla). But in her status report filed on the same day, the Superintendent of Police, Kangra stated wrongly that CCTV footage did not indicate any attack on him at Gurugram, which is false. He stated that a misleading attempt has been made by her to show that he was making up a story, but the Judicial Magistrate First Class, Gurugram had made the police there register an FIR acting on his application under Section 156(3) of the Criminal Procedure Code, being FIR No. 350/2023 dated 27.11.2023 under sections 323, 506, 34 of the Indian Penal Code at Police Station Sector 9‑A, Gurugram.
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Superintendent of Police (Law and Order), Kangra, who was the Investigation Officer at Kangra, summoned the wife of Nishant Sharma to make a statement, but there was no woman constable in the room and only four male constables were present when her statement was recorded. The copy of FIR No. 55 of 2023, which was filed on 16 November 2023, was not given to him by the Superintendent of Police, Police Station, Mcleodganj, immediately though Section 154(2) of the Criminal Procedure Code, and after he waited for three hours in the said Police Station on 17 October 2023, the copy of the FIR was given to him. When statements of Shri K. D. Shreedhar and others were being taken in the office of the Superintendent of Police, Kangra, it was their lawyer who was answering the questions put to them and these were recorded by the police as if Shri K. D. Shreedhar or his associates were making them. Sketches of the persons who had accosted him on 27 October 2023 at Mcleodganj were asked by the Investigation Officer at Kangra to be submitted by him by placing a laptop before him and asking him to draw their faces. No artist was provided by the Police to help prepare the sketch of such persons and the software in the laptop was not such that he could prepare it as it had very limited features., Two days before every hearing which was to take place in this Himachal Pradesh High Court, he alleged that he would be called by the Investigation Officer at Kangra, and something vague would be discussed with him to make it appear that an investigation was being done, but everything was only on paper and there was no seriousness in approach. Ineffective security was provided to him in spite of the Court orders; when he had to go to Gurugram to make his statement to the Police there, no security was provided to reach Gaggal Airport in Dharamshala to take the flight to Delhi. He had to contact the Superintendent of Police, Shimla after reaching Delhi for such security, and then he promptly arranged it at Delhi after talking to his counterpart in Gurugram. He stated that initially only one Police Sub-Inspector was provided for his security by the Superintendent of Police, Kangra, that the said Police Sub-Inspector would sleep at Nishant Sharma’s house till 8 a.m., have breakfast in his house, and treat it as a holiday. Later, on his complaint, four Police Sub-Inspectors per day, each having duty time of four hours only, were provided. He stated that he and his family feel highly unsafe and are frightened., The Superintendent of Police, Kangra, stated in her status report filed after 5 December 2023 (which was taken on record by this Himachal Pradesh High Court on 14 December 2023) at paragraph 5 that CCTV footages of five Himachal Pradesh High Court cameras in the vicinity were analysed but they did not show the assailants on the motorcycle in question. It is possible that the delay in collection of the CCTV footage by the Investigating Officer at Kangra caused it to get erased., In contrast, the Investigation Officer, Shri Amit Thakur, Deputy Superintendent of Police, Shimla, stated in his report dated 5 November 2023 that a team had been sent to Dharamshala to collect CCTV footage at Mcleodganj (Exhibit R1 to the status report dated 15 December 2023 of Superintendent of Police, Shimla)., When the CCTV footage as well as call data analysis of the mobile phones of the Director General of Police, K. D. Shreedhar and the complainant were available with the Investigation Officer at Shimla, why the then Investigation Officer at Kangra investigating FIR No. 55 of 2023 dated 16 November 2023 was not using the material for the purpose of his investigation is baffling., Ms. Shalini Agnihotri, Superintendent of Police, Kangra, was aware that this Himachal Pradesh High Court was monitoring the investigation periodically and seeking status reports. She is expected to show diligence and sensitivity to the concern of the Court and ensure, as a supervising authority, proper investigation by her subordinates., Senior Counsel for Ms. Agnihotri, Shri Shrawan Dogra, emphasized that after 28 October 2023, there were important festivals like Karwa Chauth on 1 November 2023 and Diwali on 12 November 2023 and his client was busy celebrating them. He questioned how a responsible police officer can take such a plea when there is a serious threat to the life of a citizen., The FIR No. 55 of 2023 was admittedly registered by the Police Station, Mcleodganj, only on 16 November 2023 after this Himachal Pradesh High Court had entertained the Criminal Writ Petition on 9 November 2023 and its listing on 10 November 2023, and after the Advocate General assured this Bench on 16 November 2023 that an FIR would be registered as regards the alleged incident which happened at Mcleodganj on 27 October 2023., According to Shri Shrawan Dogra, Senior Counsel, his client was undergoing a preliminary enquiry into the allegations leveled by Nishant Sharma against K. D. Shreedhar and his brother Sachin Shreedhar, a former Indian Police Service officer (referred to as X in our previous order dated 26 December 2023)., The said FIR No. 55 of 2023 dated 16 November 2023 mentions offences under Section 341 of the Indian Penal Code apart from offences under Sections 504, 506 and 34 of the Indian Penal Code. Section 341 of the Indian Penal Code deals with the offence of wrongfully restraining a person, which is a cognizable offence., The Supreme Court in its Constitution Bench decision in Lalita Kumari v. Government of Uttar Pradesh held that if a complaint discloses the commission of a cognizable offence, the police have no discretion or option but to forthwith register an FIR, send a report to the Magistrate under Section 157(1) of the Criminal Procedure Code and commence investigation. It declared: 'Consequently, the condition that is sine qua non for recording an FIR under Section 154 of the Code is that there must be information and that information must disclose a cognizable offence. If any information disclosing a cognizable offence is led before an officer in charge of the police station satisfying the requirement of Section 154(1), the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information. The provision of Section 154 of the Code is mandatory and the officer concerned is duty‑bound to register the case on the basis of information disclosing a cognizable offence. Thus, the plain words of Section 154(1) of the Code have to be given their literal meaning.' The Court further observed: 'Investigation of offences and prosecution of offenders are the duties of the State. For cognizable offences, a duty has been cast upon the police to register FIR and to conduct investigation except as otherwise permitted specifically under Section 157 of the Code. If a discretion, option or latitude is allowed to the police in the matter of registration of FIRs, it can have serious consequences on the public order situation and can also adversely affect the rights of the victims including violating their fundamental right to equality.' The Court also stated: 'The provisions of Section 154(1) of the Code, read in the light of the statutory scheme, do not admit of conferring any discretion on the officer in charge of the police station for embarking upon a preliminary inquiry prior to the registration of an FIR. In view of the above, the use of the word \shall\ coupled with the scheme of the Act leads to the conclusion that the legislators intended that if information relating to commission of a cognizable offence is given, then it would mandatorily be registered by the officer in charge of the police station.' The Court emphasized: 'The underpinnings of compulsory registration of FIR is not only to ensure transparency in the criminal justice‑delivery system but also to ensure judicial oversight. Section 157(1) deploys the word \forthwith\. Thus, any information received under Section 154(1) or otherwise has to be duly informed in the form of a report to the Magistrate. Thus, the commission of a cognizable offence is not only brought to the knowledge of the investigating agency but also to the subordinate judiciary.', Surely, an Indian Police Service officer having more than ten years of service knows this legal position. If the email dated 28 October 2023 disclosed the commission of the cognizable offence under Section 341 of the Indian Penal Code, she had no choice but to direct registration of an FIR, submit a report to the Magistrate and then proceed to get it investigated. Under sub‑section (3) of Section 154 of the Criminal Procedure Code she has to either investigate the case herself or direct an investigation to be made by any police officer subordinate to her. Strangely she chose not to have an FIR registered under sub‑section (1) of Section 154, and proceeded to allegedly carry out a preliminary enquiry. There is thus prima facie a dereliction of duty on her part in this regard. She had no authority in law to have a preliminary enquiry done in respect of information about commission of a cognizable offence contained in the complaint dated 28 October 2023 made by Nishant Sharma to her. The above conduct of Ms. Shalini Agnihotri cannot be viewed with lenience in the facts and circumstances of the case as she has not shown the needed sensitivity, urgency and prompt action throughout., We shall now consider whether the pleas of Shri Sanjay Kundu or Ms. Shalini Agarwal to keep them in their respective jobs as Director General of Police, Himachal Pradesh and Superintendent of Police, Kangra respectively and get the FIRs investigated through the Central Bureau of Investigation have any merit., The Advocate General for the State of Himachal Pradesh vehemently opposed this plea and stated that the State does not agree to this course of action. He also stated that only in exceptional cases this Himachal Pradesh High Court may direct investigation by the said agency when the State opposes it, and the instant case does not fall in that category. He stated that such an act cannot be directed merely to enable the Director General of Police to stay in power and satisfy his ego., The Amicus Curiae also supported this view and contended that (i) failure to register an FIR with speed, (ii) provide police protection to Nishant Sharma effectively, (iii) lethargic conduct of investigation of the crime alleged in FIR No. 55 of 2023 registered on 16 November 2023 at Police Station, Mcleodganj, and (iv) the offences referred to therein, by themselves may not warrant getting the investigation done by the Central Bureau of Investigation merely because the Director General of Police of the State appears to be involved with Shri K. D. Shreedhar, the business rival of Nishant Sharma., In Sakiri Vasu v. State of Uttar Pradesh, CBI v. State of Rajasthan, Himanshu Kumar and others v. State of Chhattisgarh and others, Anant Thanur Karmuse v. State of Maharashtra and Vishal Tiwari v. Union of India and others, the Supreme Court had emphasized that the power conferred on the High Court to transfer investigation to an outside agency like the Central Bureau of Investigation has to be exercised sparingly. In Mithilesh Kumar Singh v. State of Rajasthan, the Supreme Court held that investigation cannot be transferred merely for the asking nor can it be done to satisfy the ego or vindicate the prestige of a party interested in such investigation., We agree with the contentions of the Advocate General and the learned Amicus Curiae that the instant case does not fall in the category of cases which would require investigation by the Central Bureau of Investigation. For all the aforesaid reasons, we reject the plea of Shri Sanjay Kundu and Ms. Shalini Agnihotri to recall our order dated 26 December 2023 or to transfer the investigation to the Central Bureau of Investigation., Consequently, Criminal Miscellaneous Petition No. 79 and Criminal Miscellaneous Petition No. 84 of 2024 are dismissed., We once again reiterate that we are not expressing any opinion on the merits of the claims of the parties since the investigation is still not complete. The Principal Secretary (Home), State of Himachal Pradesh and the respondent No. 2 in the said Criminal Writ Petition shall ensure effective protection to Shri Nishant Sharma and his family until further orders., The State Government shall, within one week, consider forming a Special Investigation Team consisting of Inspector General level officers to coordinate the investigation in all the FIRs mentioned here and also to advise on providing adequate and effective security to Nishant Sharma and his family., The Criminal Writ Petition shall be listed on 28 February 2024. The Himachal Pradesh High Court fresh status reports shall be filed on the said date by respondents No. 1 to 3.
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Press Release dated 10 June 2021. The Bar Council of India has received and continues to receive thousands of letters and requests from students of various universities and law colleges across the country. Some heads of institutions have sought guidance from the Council on examinations and promotions of LL.B. students. The majority of students request promotions on the basis of past performance or other assessment methods. The students have expressed grievances and have asked for a general direction to all centres of legal education restraining them from holding any online or offline examination of any semester. Many final year LL.B. students have raised similar grievances with the same demands., The Council, by its resolutions dated 29 May 2021, thoroughly discussed and deliberated the issue. The related judgments of the Honourable Apex Court in Writ Petition (Civil) No. 724/2020 titled *Praneeth K and Others versus University Grants Commission and Others* and the division bench judgment of the Karnataka High Court were also perused by the Council., In its resolution dated 29 May 2021, the Bar Council of India clearly expressed that it does not wish to involve itself in matters of examinations and that universities should make their own decisions depending on local conditions. The Council’s concern is to maintain the standard of legal education and it cannot compromise on that standard., At the same time, the problems of students and institutions must also be addressed by the Bar Council of India., Since the Council is the regulator of legal education and every student, particularly those from remote areas, is not supposed to afford to move to the courts, the Bar Council of India constituted a High Level Committee of experts to consider the issue in detail and submit its report, so that the Council could take a final decision and place its views before the Honourable Delhi High Court and other courts as necessary., The proceedings and report of the Committee dated 08 June 2021, headed by Honourable Justice Govind Mathur, former Chief Justice of the Allahabad High Court, are reproduced here:, Report of the High Level Expert Committee of the Bar Council of India to discuss and deliberate upon the issue of mode of intermediate semester examination, evaluation and promotion of intermediate LL.B. students and also to consider evaluation of the mode of examination before issuance of degree for final year law students, in view of the unprecedented situation arising due to the pandemic, held on 6 June 2021 at 11.00 a.m. through video conferencing. The following members and special invitees were present in the meeting: Honourable Justice Govind Mathur, Former Chief Justice, Allahabad High Court, Chairperson/Convener of the Committee; D. P. Dhal, Senior Advocate, Member, Bar Council of India; Ved Prakash Sharma, Advocate, Member, Bar Council of India; Prof. (Dr.) Manoj Kumar Sinha, Director, Indian Law Institute, Delhi; Prof. (Dr.) Srikrishna Deva Rao, Vice‑Chancellor, National Law University Delhi; Prof. (Dr.) Vijayakumar, Vice‑Chancellor, National Law Institute University, Bhopal; Prof. (Dr.) Vijender Kumar, Vice‑Chancellor, National Law University, Nagpur; Prof. (Dr.) Sudhir Krishnaswamy, Vice‑Chancellor, National Law School of India University, Bengaluru; Prof. (Dr.) C. Raj Kumar, Vice‑Chancellor, O. P. Jindal Global University, Sonipat; Prof. (Dr.) Sanjeevi Shanthakumar, Director, Gujarat National Law University, Gandhinagar; Prof. (Dr.) Akhilendra Kumar Pandey, Banaras Hindu University, Varanasi; Dr. (Mrs.) Pankaj Mittal, Secretary General, Association of Indian Universities, New Delhi (Special Invitee); Dr. Rajani R. Gupte, Vice‑Chancellor, Symbiosis International University, Pune (Special Invitee); Prof. (Dr.) Vandana, Dean, Faculty of Law, Delhi University, Delhi., The members deliberated at length regarding the mode of evaluation and examination for promotion from the intermediate semester to the next semester and for the award of the law degree. After detailed discussion, the Committee unanimously agreed that each university or centre of legal education shall conduct examinations for intermediate and final year students as per their own dispensation, depending upon the availability of resources and the impact of COVID‑19 in that region. It was unanimously agreed that an end‑term examination is mandatory for all law schools and universities. The Committee further decided that universities or centres of legal education are free to determine the mode of examination—online, offline, blended, online open book exam, assignment based evaluation, or research papers. The Committee also recommended that universities ensure a sufficient time gap between regular and backlog examinations to avoid inconvenience to students. The Committee noted the earlier resolutions adopted by the Bar Council of India on 27 May 2020, 6 September 2020, 5 October 2020 and 1 November 2020, which had stipulated examinations for all semesters and issued guidelines regarding the mode of conduct of examination and evaluation, and unanimously agreed that universities are free to determine the mode of evaluation and examination for promotion and for award of the law degree. The meeting ended with a vote of thanks to the Chair., The Council has considered and deliberated over the report submitted on 08 June 2021 and resolves to accept the report of the Committee in toto.
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CS (Comm) 679/2023 Page 1 of 36 Through: Mr. Chander M. Lall, Senior Advocate with Mr. Sarad Kumar Sunny, Mr. Rohan Dua, Mr. Keshav Mann and Ms. Yashi Dubey, Advocates versus Through: Mr. Vaibhav Agnihotri and Mr. Harshit Kiran, Advocates for Defendant 1; Mr. J. Sai Deepak, Mr. Kishore Kunal, Mr. Abhishek Avadhani and Ms. Runjhun Pare, Advocates for Defendant 2. IA 18962/2023 [under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure]., This judgment decides IA 18962/2023, preferred by the plaintiff Jindal Industries Private Limited. The plaintiff seeks an order of interim injunction, pending disposal of CS (Comm) 679/2023, restraining the defendants from using the mark JINDAL, or JINDAL per se, in any manner that would infringe the plaintiff's registered trade marks., Defendant 1 is Suncity Sheets Private Limited (SSPL) and Defendant 2 is Rachna Jindal, the wife of Nitin Kumar Jindal, the Manager of SSPL., I have heard Mr. Chander M. Lall, learned Senior Counsel for the plaintiff‑applicant, Mr. Vaibhav Agnihotri, learned Counsel for Defendant 1 and Mr. J. Sai Deepak, learned Counsel for Defendant 2, at exhaustive length., Mr. Lall submits that the plaintiff is the registered proprietor, in terms of Section 18 of the Trade Marks Act, 1999, of (a) the word mark JINDAL, vide registration No. 3022745, with effect from 12 March 2014, in Class 17 covering PPR pipes, PEX pipes, PVC pipes and fittings, PVC flexible pipes, acrylic sheet, agricultural rigid PVC pipes, hope pipes and coils, PVC and UPVC rigid pipes and fittings, hope SWR pipes and fittings, polythene pipes, pre‑al‑PE (polyethylene‑aluminium‑polyethylene) composite pipes, PEX‑al‑PE composite pipes, PEX‑al‑PE composite pipes, PEX pipes (cross‑linked polyethylene pipes), polypropylene random pipes and fittings; (b) the word mark JINDAL, vide registration No. 894786, with effect from 8 January 2007, in Class 6 covering steel tubular poles, steel poles, metal poles for electric lines; and (c) the word mark JINDAL COR, vide registration No. 899510, with effect from 8 January 2007, in Class 6 covering cast iron soil pipes, cast iron pipes, mild steel pipes, galvanized corrugated steel sheet, galvanized iron pipes, galvanized plain steel sheet, steel strips, steel pipes and tubes and fittings, mild steel pipes and tubes both black and galvanized, and other related articles., The defendants use the composite mark combining the initials of the wife of the manager of SSPL with JINDAL, thereby infringing the plaintiff's registered trade marks., Defendant 2 applied for registration of the impugned mark as a sole proprietor of RN Jindal SS Tubes. The address provided in the application, E‑422, Basni II Phase, Industrial Area, Jodhpur, Rajasthan, India, was the same as the address of Defendant 1, SSPL. A signboard outside the premises of SSPL reflected the said address. Along with the application, Defendant 2 filed Invoice No. STJTI/10078/2021, dated 21 July 2020, from SSPL to RN Jindal SS Tubes (RNJSST), showing RNJSST as consignee and buyer., The same local truck, registration number RJ‑14‑GJ‑8429, which transported SS pipes and tubes from SSPL to RNJSST on 21 July 2020, also transported SS pipe tube from RNJSST to Prateek Steels & Metals on the same day under Invoice No. GST3/20‑21., A similar phenomenon is shown in Invoice No. STJTI/10094/2021 and Invoice No. GST4/20‑21, both dated 28 July 2020, reflecting transport of SS pipe tubes from SSPL in Jodhpur to RNJSST in Basni, and from RNJSST to Savitri Metal Group in Ghaziabad. The invoices are therefore fabricated and unreliable., Defendant 2, Rachna Jindal, in her statement dated 24 May 2022 recorded in CS (Comm) 604/2021, disclaimed knowledge of the year when SSPL started and could not name any known person in SSPL. She further stated that the defendants approached SSPL for manufacturing stainless steel (SS) pipes and tubes under the brand name RNJ, which were sold by her in her personal name. The packaging of the products bore no SSPL name, which, according to Mr. Lall, violates the Legal Metrology (Packaged Commodity) Rules, 2011., The defendants' mark is clearly similar, if not identical, to the plaintiff's registered JINDAL word mark. The plaintiff's registered word mark is entirely subsumed in the impugned mark of the defendants, with JINDAL being the most prominent part. A prima facie case of infringement, within the meaning of Section 29(2)(b) of the Trade Marks Act, 1999, therefore exists., Section 29(2)(b) provides that a registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade a mark which because of its similarity to the registered trade mark and the identity or similarity of the goods or services covered by such registered trade mark, is likely to be taken as being used as a trade mark., The defendants have not pleaded that the registration of the plaintiff's JINDAL mark is invalid. Once the mark is valid and infringement is proved, the plaintiff is entitled to injunction., Mr. J. Sai Deepak, learned Counsel for Defendant 2, contends that the issue is largely covered by the judgment of the Supreme Court of India in Jindal Stainless (Hisar) Ltd. v. Suncity Sheets Pvt. Ltd., in which interlocutory injunction was denied., He argues that the defendants cannot be injuncted from using the impugned mark as JINDAL is a common surname. While it may be registrable, it is not enforceable under Section 355 of the Trade Marks Act. The plaintiff's attempt to monopolize the common surname JINDAL, either alone or with other words or images, is impermissible., Section 35 states that nothing in this Act shall entitle the proprietor or a registered user of a registered trade mark to interfere with any bona fide use by a person of his own name or that of his place of business, or of the name of any predecessor in business, or the use by any person of any bona fide description of the character or quality of his goods or services., Defendant 2, who markets the product, is Rachna Nitin Jindal; the use of the impugned mark by her is perfectly legitimate. The use of one's own surname as a trade mark is prima facie bona fide., He asserts that the defendants' mark is distinctive, combining RNJ with the image of the sun and the full name R N Jindal SS Tubes, and is therefore entitled to protection under Section 35 of the Trade Marks Act., He further states that the distinctive nature and appearance of the defendants' impugned mark clearly distinguishes it from the plaintiff's JINDAL word mark, leaving no chance of confusion., Defendant 2 entered into a Memorandum of Understanding dated 3 July 2020 for manufacturing SS pipes and tubes under the brand name RNJ. The plaintiff attempts to characterize the MoU as a sham to avoid the rigour of Section 35., He argues that the plaintiff's JINDAL word mark and the defendants' device mark are completely dissimilar, so no passing off exists., He notes that the plaintiff has never sold SS tubes and cannot prevent others from using JINDAL for goods outside the plaintiff's portfolio., He relies on the cases Nandhini Deluxe v. Karnataka Cooperative Milk Producers Federation Ltd., Vishnudas Trading v. Vazir Sultan Tobacco Co. Ltd., and Mittal Electronics v. Sujata Home Appliances (P) Ltd., He says the fact that two invoices issued on the same day showed transportation of goods by the same vehicle to different destinations is irrelevant because GST was paid separately on each trip., He states that SSPL was the contract manufacturer for Defendant 2., In rejoinder, Mr. Lall submits that the defendants' acts are completely orchestrated and lack bona fides. Defendant 1 was an ex‑licensee of the plaintiff; the day the plaintiff cancelled the licence, Defendant 1 began infringing the plaintiff's registered trade marks by involving Defendant 2, the wife of Nitin Jindal, a former employee of the plaintiff., He asserts that Defendant 2 has no prior knowledge or experience in manufacture or sale of steel pipes and was a housewife., He contends that the benefit of Section 35, by way of a personal name defence, was not available to Defendant 1, a corporate entity., He argues that Section 35 prohibited injuncting the use of one's own name, but does not apply here because the defendants are using the impugned mark as a trade mark, not merely as a source identifier., He relies on paragraphs 203 and 210 of Zydus Wellness Products Ltd. v. Cipla Health Ltd., stating that the defendants were clearly using the mark as a trade mark, and Section 35 protects only honest users of one's own name as a mark., He cites the House of Lords decision in Parker Knoll Ltd. v. Knoll International Ltd., the Division Bench of the Supreme Court of India in B.K. Engineering Co. v. UBHI Enterprises, the Bombay High Court in Bajaj Electricals Ltd. v. Metals & Allied Products, and other authorities., He states that the defendants' argument that the surname JINDAL should allow them to overlook infringement is untenable., He notes that Section 29(1) covers use of an identical trade mark by the defendant as a trade mark; surnames are not excepted., He emphasizes that the transactions between SSPL and Defendant 2 are sham, with goods sold on the same truck on the same day, and that the mobile number in the trademark application belongs to Nitin Jindal, the marketing manager., He warns that allowing the defendants to use the impugned mark would wipe out the statutory right created in favour of the plaintiff by virtue of the registrations., He argues that the judgments cited by Mr. Sai Deepak are distinguishable because they involve family members in a single business with concurrent rights over a common surname., He asserts that the plaintiff's JINDAL word mark is registered in Class 6 for steel poles, and the JINDAL COR word mark is registered for steel pipes and tubes, which are identical to the goods made and sold by the defendants., In surrejoinder, Mr. Sai Deepak submits that Section 35 begins with a non obstante clause, so the right to use the name of the predecessor in business also encompasses its use as a trade mark., He contends that protection under Section 35 can be lost only if the use of the impugned mark results in actual confusion, not merely likelihood of confusion., He further argues that the protection under Section 35 is not contingent on a family relationship., He maintains that the defendants' and plaintiff's marks are totally different, with no likelihood of confusion, referring to paragraph 22 of the judgment of the Division Bench of the Supreme Court of India in B.K. Engineering., He points out that in Melachrino the defendant emphasized the word Melachrino, unlike the present case., Mr. Vaibhav Agnihotri, on behalf of Defendant 1, SSPL, contends that his client was never a licensee of the plaintiff but merely a purchaser of the plaintiff's raw material., Section 35 of the Trade Marks Act operates, in my prima facie view, as a statutory fetter to the relief that Mr. Lall seeks., Section 35 starts with a non obstante clause, giving it overarching applicability over every other provision in this Act. Mr. Lall's reliance on Section 29(1) cannot dilute the effect of Section 35., If Section 35 applies, there is an absolute statutory prohibition against the plaintiff interfering with the defendants' use of the impugned mark., The use of the impugned mark by the defendants must be bona fide. Mr. Lall has argued that the defendants' use of JINDAL as part of the impugned mark is not bona fide., Mr. Lall does not dispute that R N Jindal is indeed the name of Defendant 2. In view of Section 35, the plaintiff cannot interfere with Defendant 2's use of her own name, provided the use is bona fide., Section 2(2)(b) ordains that any reference to the use of a mark shall be construed as a reference to the use of the printed or other visual representation of the mark. Accordingly, the benefit of Section 35 can be extended to the use of the name in the form of initials, such as R N Jindal or RNJ., In the impugned mark, the most prominent feature is RNJ with the sun symbol; the name below it is R.N. Jindal. The mark does not highlight JINDAL over RN, so it cannot be read as JINDAL alone., To tear out the word JINDAL from the composite mark and allege infringement is not justified by any provision of the Trade Marks Act., Marks must be compared as whole marks. In Amritdhara Pharmacy v. Satya Deo Gupta, the Supreme Court held that overall similarity must be considered., Similarly, in the case of the application to register Erectiks opposed by the proprietors of Erector, the Court said that a word must be considered as a whole and compared with the other word as a whole.
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The name or the mark will have acquired a secondary meaning (see Chivers v. Chivers 28). It follows that someone may, even by using his own name innocently, make a representation that is untrue, that is, a representation that goods which in fact are his are the goods of someone else (see Reddaway). In Joseph Rodgers & Sons, Limited, Romer, Judge, at page 291 said that no man is entitled to describe or mark his goods as to represent that the goods are the goods of another, and further said at page 292 that to the rule as so stated there is no exception at all (see also Baume v. Moore 29). In Marengo v. Daily Sketch and Sunday Graphic Limited 30, Lord Simonds said at page 251: it is an unassailable general proposition that the interests alike of honest traders and of the public require that the goods of A should not be confused with the goods of B, subject to the qualification that a man must be allowed to trade in his own name and, if some confusion results, that is a lesser evil than depriving a man of a natural and inherent right., It is a question of fact, to be decided on the evidence, whether it is proved that a name or a mark has acquired a secondary meaning so that it denotes goods made by a particular person and not goods made by any other person even though such other person may have the same name. In the circumstances referred to, the issue is whether the respondents clearly established that if furniture is sold there will be a serious risk that substantial numbers of members of the purchasing public will be led to believe that they are buying Parker‑Knoll furniture, i.e., that the furniture would, as a result of the use of such marks, be represented albeit innocently as being the furniture of Parker‑Knoll Limited. The learned judge at trial and all three judges in the Court of Appeal considered that by the use of the word KNOLL there was a real likelihood of passing off; the Master of the Rolls and the other judges reached a similar conclusion in regard to the use of KNOLL INTERNATIONAL., The failure of the respondents to show that the word KNOLL, used as a trade mark, had come to denote solely the respondents' goods is not, in my view, fatal to the respondents. The question still remains whether it was clearly proved that passing off will result if Knoll International Limited uses the marks. KNOLL was not shown to be solely distinctive of the respondents, but that does not negate the likelihood that deception would result from the use of the word by the appellants. Evidence satisfied the learned judge that purchasers who wished to buy Parker‑Knoll chairs often, by way of an abbreviation, asked for a KNOLL chair., The evidence tended to support the view that members of the purchasing public are likely to regard KNOLL as the striking and significant feature of the doublet PARKER‑KNOLL. The learned judge was warranted in taking the view that many purchasers would regard KNOLL as the major or memorable part of PARKER‑KNOLL. Consequently, if they saw furniture sold with the mark KNOLL they would consider that they were buying PARKER‑KNOLL. Even if the style of the furniture differed, purchasers would more likely conclude that they were seeing PARKER‑KNOLL furniture of a new design rather than furniture that was not PARKER‑KNOLL at all., The honest‑user argument was advanced, contending that the appellants, when they use the name KNOLL INTERNATIONAL, are honestly using their own name. They agree that a false representation may be made innocently and that absence of fraud is no defence to an action for passing off, but they urge that the honest use of their own name places the onus on the plaintiff to satisfy the court that such use amounts to a false representation. In this House counsel on their behalf argued that the honest user by the appellants of their own name is a complete answer in law to the respondents' claim. This argument is supported by observations of Lord Greene, Master of the Rolls, in Wright, Layman & Umney Limited, a case of passing off, where he said: if a man carries on his business in his own name and so describes his goods, it appears to me that he is perfectly safe., Lord Greene referred to the decision of Romer, Judge, in Joseph Rodgers & Sons, Limited, which puts the position very differently where passing off is concerned. Romer, Judge, at page 291 said that it is the law of this land that no man is entitled to carry on his business in such a way as to represent that it is the business of another, or is in any way connected with the business of another; that is the first proposition. The second proposition is that no man is entitled to describe or mark his goods as to represent that the goods are the goods of another. To the first proposition there is, I think, an exception: a man is entitled to carry on his business in his own name so long as he does not cause confusion with the business of another and does so honestly. To the second rule there is no exception at all., The exception to the rule in the case of trading under a name is exemplified by authorities such as Turton v. Turton 32, a case of trading, not passing off, in which strong and unqualified language upheld the right of persons to use their own names provided they did so honestly. The exception was qualified in Brinsmead v. Brinsmead 33, where Buckley, Lord Justice, gave his opinion that since the decision in Reddaway v. Banham 34, the doctrine had been clearly established that a man may use even his own name in connection with a sale of goods so as to make a false representation. The extreme argument on behalf of the appellants must, in my opinion, be rejected without hesitation, and it follows that the honesty of the defendant does not assist in answering whether the appellants' description of their goods is likely to mislead purchasers., The majority of the Court of Appeal, Lord Upjohn, Lord Justice, and Lord Pearson, Lord Justice, upheld the decision of the trial judge that KNOLL INTERNATIONAL as well as the word KNOLL by itself must be included in the injunction. The Master of the Rolls, Lord Evershed, and some of the Lordships took a different view as to KNOLL INTERNATIONAL. Once the word KNOLL is found to be objectionable, it follows that KNOLL INTERNATIONAL should suffer the same fate. Although a court is less likely to find fraud if the name used is genuine, the use of a man's own name can be indirectly relevant, but no fraud is alleged here. Whether the statement is literally true or carries a false representation does not depend on whether the name is genuine or fictitious., Section 35 of the Trade Marks Act, 1999, protects the bona‑fide use of a person's own name. In the Indian context, unlike the position in the United States, Section 35 proscribes any interference with the use of one's own name, even when the name is used as a trade mark. Therefore, while innocent use is impermissible under Parker‑Knoll, the defendant in India is entitled to the benefit of Section 35. Whether Parker‑Knoll applies mutatis mutandis to India may be debatable, but it does not substantiate the plaintiff's case for injunction., Paragraph 22 of B.K. Engineering states: in Parker‑Knoll Ltd. v. Knoll International Ltd. both parties were manufacturers of furniture, the plaintiff being a well‑known company in the United Kingdom and the defendant an American company that had only recently begun to trade in England. Notwithstanding that the defendant did no more than use its own name on its furniture, the House of Lords, by majority, granted an injunction to restrain it from continuing to do so without distinguishing its goods from those of the plaintiff. The plaintiff had established that its name had come to denote goods made by it alone and not goods made by someone else possessing the same name, and the use by the defendant of a similar name amounted to a false representation that its goods were the plaintiff's goods., Joseph Rodgers was also a case of passing off. As noted, no case of passing off can be said to exist here; therefore, Joseph Rodgers would not apply. The registration of a common name or surname such as JINDAL as a trade mark carries the risk that others will also use the name on their goods. The plaintiff cannot, by obtaining registration for JINDAL as a word mark, monopolise the use of JINDAL even as a part of a mark for steel or SS pipes and tubes. The Trade Marks Act and the privileges it confers cannot be extended to the point where one can monopolise the use of a common name for goods, thereby foreclosing the rest of humanity from using it., The plaintiff's concern that, if the defendants are permitted to use the impugned mark, its statutory rights in the registered JINDAL word mark would be jeopardised is misplaced. The risk of others bona‑fide using JINDAL as a name for their products is a risk that the plaintiff consciously took when it obtained registration of the mark. If a mark lacks inherent distinctiveness, the possibility of others also using the same mark and the registrant being powerless to restrain such use is a risk that the registrant must live with., The Supreme Court has observed that a name is an intrinsic element of identity. The Court has recognised the sanctity of identity in cases such as National Legal Services Authority v. Union of India, Navtej Singh Johar v. Union of India, and K.S. Puttaswamy (Privacy) v. Union of India. In Navtej Singh Johar, the Court noted that the natural identity of an individual is essential to his being and must be respected. The core existence of an individual is not exemplified by outer characteristics but by inner self‑identification, and this forms part of the protected freedom of speech and expression under Article 19(1)(a) of the Constitution of India., To the extent Section 35 protects against interference with the use of one's own name, the right of a person to use his or her own name on his or her own goods cannot be compromised; otherwise, it would compromise the right to use one's name as an identity marker, which would be unconstitutional. In the absence of any caveat in Section 35, it may be arguable whether the use of one's name as an identity marker is permissible, but when it spills over into trade mark territory it becomes impermissible. Such an interpretation would amount to reading a non‑existent proviso into Section 35 and effectively rewriting the provision., The proscription under Section 35 is absolute and extends to infringement as well as passing‑off actions. The restraint against interference with the bona‑fide use of a person's own name is not dependent on whether the action is for infringement or passing off. Consequently, the plaintiff's prayer for injunction is bound to fail even on the sole basis of Section 35., Infringement can be said to take place only where one of the sub‑sections of Section 29 of the Trade Marks Act applies. In each of them, identity or deceptive similarity between the rival marks is the sine qua non for a finding of infringement. The word mark JINDAL and the logo, seen as whole marks, are neither identical nor deceptively similar; therefore, no infringement exists., The plaintiff's case for passing off is even weaker. Paragraph 28 of the decision in Kaviraj Pt Durga Dutt Sharma v. Navaratna Pharmaceuticals states that the grounds of objection proceed from an error in appreciating the basic differences between the causes of action for passing off and for infringement of a registered trade mark. The suit complained of both an invasion of a statutory right under Section 21 in respect of a registered trade mark and a passing‑off by the use of the same mark. The finding in favour of the appellant was based upon dissimilarity of the packaging, colour, and the prominent display of the appellant's name and address, which negated the claim of passing off. Thus, the essential features of a passing‑off action are not present, and no passing‑off claim can be sustained.
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In an action for infringement, the plaintiff must, no doubt, make out that the use of the defendant's mark is likely to deceive, but where the similarity between the plaintiff's and the defendant's mark is so close either visually, phonetically or otherwise and the court reaches the conclusion that there is an imitation, no further evidence is required to establish that the plaintiff's rights are violated. Expressed in another way, if the essential features of the trade mark of the plaintiff have been adopted by the defendant, the fact that the get‑up, packing and other writing or marks on the goods or on the packets in which he offers his goods for sale show marked differences, or indicate clearly a trade origin different from that of the registered proprietor of the mark would be immaterial; whereas in the case of passing off, the defendant may escape liability if he can show that the added matter is sufficient to distinguish his goods from those of the plaintiff. (Emphasis supplied) Viewed thus, there is no prima facie likelihood of confusion, or deception, resulting as a consequence of the use, by the defendants, of the mark. Seen as a whole mark, it possesses several features of distinction, vis-à-vis the bare word mark JINDAL of the plaintiff, such as the bold and prominent RNJ logo, the sun symbol and the words RNJINDAL SSTUBES prominently written below it., The tort of passing off connotes, in its essence, an attempt by the defendants to pass off its goods or services as those of the plaintiff. In trade mark jurisprudence, that would be by use of a mark which is so similar to that of the plaintiff that the use of the mark results in the defendants' goods or services, in or in connection with which the mark is used, being passed off, in the perception of the consumer of average intelligence and imperfect recollection, as the goods or services of the plaintiff. Where the mark of the defendants, therefore, possesses added matter which is sufficient to distinguish it from the mark of the plaintiff, no passing off is made out., In the present case, not only does the impugned mark of the defendants possess added matter and added features which clearly distinguish it from the JINDAL mark of the plaintiff; the defendants, quite clearly, have made every effort to minimise any chance of confusion, by prominently using the initials RNJ along with the complete name of the proprietorship of Defendant 2, RN. A consumer of average intelligence who reads the text on the defendants' impugned mark would regard it as a mark of the plaintiff. The defendants' impugned mark is clearly a source identifier and identifies the product on which it is used with the defendants and with no one else., The use of the impugned mark by the defendants cannot, therefore, be regarded, even prima facie, as passing of their goods as those of the plaintiff. Consequently, the plaintiff is not entitled to the interim injunction as sought.
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Civil Revision Petition Nos. 3586 and 4156 of 2022 are filed by petitioner Kiran Kumar Chava alias Kiran Chava against respondent Usha Kiran Anne. The petitions are filed under Article 227 of the Constitution of India seeking to strike off Original Petition No. 2788 of 2022 pending before the Second Additional Family Court, Chennai, and to strike off the Domestic Violence Complaint No. 116 of 2022 pending before the Additional Mahila Court, Egmore, Chennai., The marriage between the petitioner and the respondent was solemnised on 21 April 1999 at Vijay Shree Mahal, Anna Nagar, Chennai, as per Hindu rites and customs. The parties initially lived in India and later shifted to Virginia, United States of America, where twin boys, Tarun Chava and Tanush Chava, were born on 16 April 2008. Both parties acquired United States citizenship by naturalisation. On 27 December 2020 the respondent returned to India with the children on tickets dated 24 April 2021, later extended to August 2021, and has since remained in Chennai. In May 2021 the twins were admitted to George Washington Online School., The petitioner served a legal notice on 23 September 2021, to which the respondent replied through her attorney. The petitioner filed a complaint for divorce and custody of the children before the Circuit Court of Fairfax County on 13 October 2021. The respondent filed Original Petition No. 719 of 2021 before the Madras High Court on 25 October 2021 for guardianship and custody of the children, and Original Petition No. 2788 of 2022 under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights before the Family Court, Chennai, asserting that the marriage was registered under the Hindu Marriage Act, 1955. The respondent initially participated in the United States proceedings virtually but later failed to attend, resulting in an ex parte decree of divorce and custody by the United States court., Original Petition No. 719 of 2021 filed by the respondent before the Madras High Court was dismissed on 21 March 2022 on the ground that the matrimonial proceedings were pending before the United States court and both parties were American citizens; the respondent was therefore permitted to pursue her remedy in the United States court., In March 2022 the United States court ordered the physical presence of the wife and the twin children, but the respondent remained in India. She filed Original Special Appeal No. 102 of 2022 challenging the order passed in Original Petition No. 719 of 2021, and subsequently withdrew the appeal. On 16 June 2022 the respondent filed a Domestic Violence Complaint before the Protection Officer under the Protection of Women from Domestic Violence Act, 2005, against the petitioner., The petitioner filed Habeas Corpus Petition No. 1689 of 2022 on 22 August 2022 seeking production of the children to return them to the United States of America and resume their education in physical mode. While the petition was pending before the Madras High Court, the respondent’s motion was denied and the United States court set 18 October 2022 as the hearing date, directing that the children be present. As the respondent and the children were absent, the original custody order was restored on that date. On 2 December 2022 the United States court granted a divorce decree, which was solemnised in Chennai, India. On 3 January 2023 the Division Bench of the Madras High Court disposed of Habeas Corpus Petition No. 1689 of 2022 and directed the respondent to return to the United States with the twin children within six weeks and resume their education there., The twin children, now about fifteen years old, have been residing in Chennai for more than two years. All parties are American citizens and Overseas Citizens of India (OCI card holders). The petitioner has obtained ex parte orders for divorce and custody from the United States court., Consequently, the petitioner filed the present Civil Revision Petitions to strike off Original Petition No. 2788 of 2022 pending before the Second Additional Family Court, Chennai, and the Domestic Violence Complaint No. 116 of 2022 pending before the Additional Mahila Court, Egmore, Chennai, both of which were filed by the respondent seeking relief under the respective statutes., Senior Counsel for the petitioner argued that the directions issued by the Division Bench of the Madras High Court in Habeas Corpus Petition No. 1689 of 2022 must be respected, and therefore the Civil Revision Petitions should be allowed to strike off the proceedings initiated by the respondent under Section 9 of the Hindu Marriage Act, 1955 and the Protection of Women from Domestic Violence Act, 2005. The United States court has already granted an ex parte decree of divorce and custody, leaving the respondent with no option but to leave India and hand over the children to the petitioner for their education and other activities in the United States., The respondent referred to Original Petition No. 2788 of 2022 and Domestic Violence Complaint No. 116 of 2022, alleging complications between the parties, which prompted the petitioner to move the present Civil Revision Petitions to strike off those litigations., Senior Counsel reiterated that the respondent cannot contest the directions of this Court, and any attempt to dilute the Division Bench’s orders would constitute contempt. In view of the findings in the Habeas Corpus proceedings, the petitions under Section 9 of the Hindu Marriage Act and under the Domestic Violence Act should be rejected., The Court has already examined the minor children in the Habeas Corpus proceedings and therefore cannot re‑examine them to ascertain their wishes. The children, being about fifteen years old, are under the control of their mother, and the Court held that it cannot decide the case based on the children’s statements; the best interest of the children is to be determined by the Court. The observations of the High Court indicate that the children’s statements, tutored by the respondent, are not relevant. The custody issue is final due to the final order of the United States court., Senior Counsel submitted that all parties are American citizens and have been residing abroad for a long time, lacking domicile in India. The respondent, although staying in India as an OCI card holder, holds only a long‑term visa and does not acquire domiciliary rights; consequently, she has no right to institute matrimonial proceedings in Indian courts under the Hindu Marriage Act, 1955., The petition under the Protection of Women from Domestic Violence Act, 2005 is an abuse of process. The Madras High Court, in Original Petition No. 719 of 2021, granted the respondent liberty to approach the United States court for redress. Therefore, re‑litigating the custody issue and seeking restitution of conjugal rights cannot be entertained by Indian courts, and the Civil Revision Petitions should be allowed to strike off the respondent’s filings before the Family Court and the Additional Mahila Court., Senior Counsel argued that all allegations in the Domestic Violence Complaint occurred in the United States of America and no cause of action arose in India; consequently, the Indian courts lack jurisdiction and the complaint must be struck off., Citing Section 27(2) of the Protection of Women from Domestic Violence Act, 2005, Senior Counsel noted that any order passed under the Act cannot operate beyond the territory of India, and the petitioner resides in the United States of America. The Court also observed that judgments relied upon by the respondent involved parties residing in India and pending proceedings there, and therefore are not applicable to the present case., The respondent appeared in person and stated that the marriage was solemnised at Vijay Shree Mahal, Anna Nagar, Chennai, in the presence of relatives. Her parents gave her 100 sovereigns of gold, jewellery, silver articles weighing 2000 grams, an Omega watch, and a ladies’ Omega watch. The petitioner received a 5‑sovereign gold chain, a diamond ring, and a gold wedding band. The marriage expenses amounted to Rs 15 lakhs in 1999, borne by the respondent’s parents. The couple set up their matrimonial home at No. 54, Raja Colony, Collector’s Office Road, Cantonment, Trichy 620 001, and later moved to McLean, Virginia, United States of America., The respondent owned a computer systems consulting business established in December 1997 as a sole proprietorship, which she incorporated in July 2003 as a Virginia S‑Corporation named ‘bMetrics Inc.’ She is the sole shareholder of bMetrics Inc., In March 2020, when the pandemic forced schools to shift to remote learning, the respondent’s business suffered due to economic headwinds in the United States. She alleges harassment and ill‑treatment by the petitioner, and consequently, she and the twin children left for India on 27 December 2020, arriving in Chennai on 30 December 2020. After several months of no communication from the petitioner, the petitioner’s U.S. attorney sent an email notice on 23 September 2021 demanding that the children be returned to the United States by 10 October 2021, threatening kidnapping charges. When the respondent did not comply, the petitioner filed a divorce complaint in the Circuit Court of Fairfax County on 13 October 2021. On 31 December 2021 the respondent wrote to the Fairfax County Court objecting to its jurisdiction, arguing that the marriage was celebrated and registered in India under the Hindu Marriage Act, and that the Indian courts have jurisdiction over the marriage, children, and financial settlement., The respondent participated in virtual hearings on 7, 13, and 14 January 2022, filing a motion to stay the proceedings and transfer jurisdiction to the Indian court. The United States court ultimately retained jurisdiction, noting that the extension of airline tickets to August 2021 indicated the respondent’s intent to remain in India, and that the petitioner had timely pursued his case. The custody trial was scheduled for 11–13 July 2022. The respondent informed the trial judge’s law clerk on 6 July 2022 that she had contracted COVID‑19 and could not travel. The court proceeded with the trial, awarding sole custody of the children to the petitioner and attorney’s fees of $47,746 to the petitioner. On 22 July 2022 the respondent filed a motion to set aside the order, which was suspended on 29 July 2022. The trial was rescheduled for 18 October 2022, but the respondent again could not travel due to post‑COVID complications. The court declined further discussion and issued an ex parte order lifting the suspension and granting sole custody to the petitioner, along with additional attorney’s fees of $12,829.56., The respondent and her children are Overseas Citizens of India. OCI card holders are entitled to live, study, or work in India indefinitely, as provided by Section 7B of the Citizenship Act, 1955 and the relevant government notification., In Dr. Christo Thomas Philip v. Union of India & Others (2019 SCC Online Del 6426), the Delhi High Court observed that the provisions relating to Overseas Citizenship of India were introduced by the Citizenship (Amendment) Act, 2003. Section 7B of the Citizenship Act confers rights on an OCI card holder, subject to specifications made by the Central Government in the Official Gazette., An OCI card holder is not entitled to the rights conferred on a citizen of India under Article 16 (equality of opportunity in public employment), Article 58 (presidential election), Article 66 (vice‑presidential election), Article 124 (appointment as a Supreme Court judge), Article 217 (appointment as a High Court judge), Section 16 of the Representation of the People Act, 1950 (voter registration), Sections 3 and 4 of the Representation of the People Act, 1951 (membership of Parliament), Sections 5, 5A and 6 of the Representation of the People Act, 1951 (membership of State legislatures), and certain appointments to public services and posts., In Michael Graham Prince v. Nisha Misra (24 February 2022, Manu/KA/06/11/2022), the Karnataka High Court held that OCI card holders can seek matrimonial relief before Indian courts against other OCI card holders, rejecting the petition of an estranged husband who challenged a family court decision in Bangalore., In Neerja Saraph v. Jayant Saraph and Anr (1994 SCC 461), the Supreme Court of India affirmed the right to obtain orders from Indian courts, including injunctions against a husband travelling abroad with the children, claims for damages, and property shares., In Muncherji Curestji Khambata v. Jessie Graant Khambata (AIR 1935 Bom 5), the Bombay High Court outlined private international law principles: the validity of marriage depends on the law of the place of contract (lex loci contractus); the wife acquires the domicile of the husband; the rights and obligations arising from the marriage are governed by the law of the domicile (lex domicilii); and dissolution rights are governed by the law of the domicile., In Mohd Ahmed Khan v. Shah Bano Begum (1985 SCC 556), the Supreme Court held that Section 125 of the Criminal Procedure Code applies irrespective of the citizenship or personal law of the parties, and overrides personal law where there is a conflict., Section 3 of the Protection of Women from Domestic Violence Act, 2005 defines domestic violence and enumerates physical, sexual, verbal, emotional, and economic abuse, as well as any act or omission that endangers the health, safety, life, limb or well‑being of the aggrieved person., Explanation Clause I (iv) to Section 3 defines economic abuse to include deprivation of economic or financial resources to which the aggrieved person is entitled, disposal or alienation of assets, and denial of access to shared household resources., Explanation Clause II to Section 3 states that, for determining whether conduct constitutes domestic violence, the overall facts and circumstances of the case shall be considered., Section 20 of the Act provides for monetary reliefs for maintenance of the aggrieved person and her children, requiring that the relief be adequate, fair, reasonable and consistent with the standard of living to which the aggrieved person is accustomed. The magistrate may order lump‑sum or periodic payments as appropriate., Section 21 empowers the magistrate, at any stage of hearing, to grant temporary custody of a child or children to the aggrieved person or her representative, and to specify visitation arrangements, refusing visitation if it may be harmful to the child’s interests.
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Section 27 of the Protection of Women from Domestic Violence Act, 2005 provides jurisdiction as follows: (1) The court of Judicial Magistrate of the first class or the Metropolitan Magistrate, as the case may be, within the local limits of which (a) the aggrieved person permanently or temporarily resides, carries on business or is employed; or (b) the respondent resides, carries on business or is employed; or (c) the cause of action has arisen, shall be the competent court to grant a protection order and other orders under this Act and to try offences under this Act. (2) Any order made under this Act shall be enforceable throughout India., Section 27 unambiguously stipulates that an aggrieved person who is temporarily residing, carrying out business or employed also falls within the ambit of the Protection of Women from Domestic Violence Act, 2005. Therefore, a person who is temporarily residing in India or an Overseas Citizen of India, if economically abused by a spouse residing in another country, is entitled to seek relief under the Act. The cause of action arises in India because the aggrieved person is residing in India., In the case of Robartoniyaddu vs. State of Rajasthan decided on 20 November, reported in Manu/RH/0800/221, the Rajasthan High Court held that as per section 2(a) of the Protection of Women from Domestic Violence Act, 2005, the definition of 'aggrieved person' includes any woman, including a foreign citizen, who is subjected to domestic violence and can maintain an application before the trial court under the Act. Section 12 of the Act further provides that an aggrieved person may prefer an application through a protection officer seeking relief under the Act., The observations of the Supreme Court of India in the case of Shyamlal Devda & Ors. vs. Parimala (All India Reporter 2020 SC 762) also fortify the maintainability of an application under section 12 of the Protection of Women from Domestic Violence Act, 2005. Paragraph 10 of the judgment states: 'Insofar as the jurisdiction of the High Court of Karnataka, as pointed out by the High Court, Section 27 of the Protection of Women from Domestic Violence Act, 2005 covers the situation.' Section 27 of the Act reads as follows:, The above observation is also supported by the judgment of the Supreme Court of India in the case of Chairman, Railway Board and Others vs. Chandrima Das (Mrs.) and Others [(2000) 2 Supreme Court Cases 465]. The relevant paragraph reads: It was contended by counsel for the appellants that Smt. Hanuffa Khatoon, being a foreign national, could not obtain relief under Public Law because there was no violation of the Fundamental Rights available under the Constitution. It was argued that Fundamental Rights in Part III of the Constitution are available only to citizens, and since Smt. Hanuffa Khatoon was a Bangladeshi national, she could not complain of a violation of Fundamental Rights and therefore could not be granted any relief. This argument fails for two reasons: first, on the ground of domestic jurisprudence based on constitutional provisions, and second, on the ground of human rights jurisprudence based on the Universal Declaration of Human Rights, 1948, which has international recognition as the 'Moral Code of Conduct' adopted by the General Assembly of the United Nations., The Hon'ble Supreme Court of India held that recognition of decrees and orders passed by foreign courts remains a complex issue, and Indian courts, when called upon, must determine the validity of such decrees and orders in view of the provisions of Section 13 of the Code of Civil Procedure. The fact that a foreign court has taken a particular view concerning the welfare of a minor is not sufficient for Indian courts to forgo independent consideration. Objectivity, not abject surrender, is the guiding principle. Since no system of private international law enjoys universal recognition, Indian courts must decide the validity of foreign decrees in accordance with Indian law. Comity of courts requires consideration of foreign orders, not necessarily their enforcement. In this context, the Supreme Court of India in Prateek Gupta vs. Shilpi Gupta [(2018) 2 Supreme Court Cases 309] balanced the foreign court order on custody by holding that it is one of the relevant factors without being determinative. While examining the merits, the court must bear in mind the welfare of the child as paramount, noting any pre‑existing foreign court order only as one factor and not becoming fixated on it., In the case of Y. Narsimha Rao and Ors. vs. Y. Venkata Lakshmi [(1991) 3 Supreme Court Cases 451], it was contended that a foreign divorce decree was an ex parte decree that the respondent could not contest. The decree is not recognized in India, and therefore the petitioner is not entitled to any relief. The Supreme Court of India declined to give its imprimatur to a foreign decree that did not consider the provisions of the Hindu Marriage Act under which the parties were married. While interpreting Section 13 of the Code of Civil Procedure, the Supreme Court held that unless the respondent voluntarily and effectively submitted to the jurisdiction of the foreign court and contested the claim based on the grounds available in the matrimonial law under which the parties were married, the judgment of the foreign court could not be relied upon (paragraph 12)., The Delhi High Court, in Harmeeta Singh vs. Rajat Taneia [(2003) 2 Reporter of Cases and Remedies (Civil) 197], held that where the husband and wife were of Indian origin, the marriage was solemnized in India, and a divorce decree was granted in the United States, the decree is not recognized by an Indian court under the provisions of Section 13 of the Hindu Marriage Act. Consequently, if the husband were to remarry, he would be guilty of bigamy., In Rupak Rathi vs. Anita Chaudhary [(2014) 2 Reporter of Cases and Remedies (Civil) 697], a Hindu couple settled abroad obtained a divorce decree from a foreign court on the ground of irretrievable breakdown of marriage. The court held that irretrievable breakdown is not a valid ground for divorce under Section 13 of the Hindu Marriage Act, and therefore the foreign decree was not binding on the wife., In Sandeep Kumar (also known as Sandeep Chugh) vs. State of Haryana and Others, the High Court of Punjab and Haryana held that a previous order of a foreign court is only one factor to be considered; it cannot be determinative and must yield to considerations of the welfare of the child., The Hon'ble Supreme Court of India, in Lahari Sakhamuri vs. Sobhan Kodali [(2019) 7 Supreme Court Cases 311], paragraph 51, held that the doctrines of comity of courts, intimate connection, orders passed by foreign courts having jurisdiction over custody of a minor child, citizenship of the parents and the child, etc., cannot override the consideration of the best interest and welfare of the child, and that a direction to return the child to a foreign jurisdiction must not result in any physical, mental, psychological, or other harm to the child., In Shilpa Sachdev vs. Anand Sachdev [2017 Supreme Court Online Bombay 8972], the Division Bench of the Bombay High Court observed the Supreme Court judgment in M/s. International Woolen Mills vs. M/s. Standard Wool (UK Ltd.), holding that a decision of a court given ex parte on the basis of the plaintiff's pleadings and documents, without addressing the controversy between the parties, does not constitute a judgment on the merits. Consequently, it is not conclusive of the matters adjudicated and is not enforceable in India. Such a judgment would breach the applicable matrimonial law and is therefore unenforceable under clause (f) of section 13 of the Code of Civil Procedure (paragraph 32)., In the context of the children's desire, the Court independently examined the twin children, aged about 15 years, and recorded their statements on 24 January 2023. The Court examined the minor boys, Tanush Chava and Tarun Chava, both aged about 15 years. The learned Senior Counsel for the revision petitioner raised an objection, but there was no impediment since the Civil Revision Petition is against the Domestic Violence Case and the matrimonial case. Periodic assessment of the matured minor boys and their choices and wishes is of paramount importance., The minor boys, Tanush Chava and Tarun Chava, were asked a series of questions. They affirmed awareness of the dispute between their parents and stated that they have lived with their mother since birth, with their father visiting only on weekends while residing in the United States. They came to India in December 2020 and have been residing in Chennai with their mother, who takes care of them in all respects. They expressed no difficulty in pursuing their education in India and intend to complete basic education in Chennai, with the possibility of higher studies abroad, including the United States. When asked with whom they wish to live, they answered that they want to live with their mother only. They expressed a desire to stay with their mother in Chennai, to meet her relatives, and to continue their extracurricular activities such as basketball, chess, piano, and swimming. Regarding their father's character, they reported that he used abusive language against their mother, broke things in the house, and hit their mother; when they objected, he threatened them and asked them to go to their bedroom. Concerning their present relationship with their father, they said that after coming to India, he called them for some time but has not contacted them for the past six to seven months., In the present case, the respondent wife, along with her twin minor children aged about 15 years, have been residing in Chennai, India for more than two years. The respondent alleges mental harassment and economic abuse by the revision petitioner husband and claims that she and her children are not supported by the petitioner apart from the mental harassment., Both the petitioner and respondent were born and raised in India, and their marriage was solemnised in Chennai under the Hindu Marriage Act. They later moved to the United States of America and acquired American citizenship. The respondent wife and her twin minor children have expressed their intention to reside in Chennai, and the boys, aged about 15 years, are capable of deciding about their well‑being and are sufficiently mature., The contention of the revision petitioner that the alleged incidents occurred in the United States of America and therefore the Domestic Violence Case is not maintainable in India is untenable. After arriving in Chennai in December 2020, the respondent wife and her twin children alleged subsequent mental harassment and economic abuse, which are to be adjudicated., The Rajasthan High Court, in Robartoniyaddu vs. State of Rajasthan decided on 20 November 2021 [Manu/RH/0800/221], held that any woman, including a foreign citizen, can be construed as an 'aggrieved person' under the Protection of Women from Domestic Violence Act. Section 27 of the Act extends protection to persons who are temporary residents of India, and Article 21 of the Constitution of India extends the benefit of protection not only to citizens but also to persons who may not be citizens. Accordingly, the respondent, as an aggrieved person, is entitled to protection under Section 12 of the Act., The Supreme Court of India, in Chairman, Railway Board and Others vs. Chandrima Das (Mrs.) and Others [(2002) 2 Supreme Court Cases 465], reiterated that the rights of a foreign national, on par with those of an Indian citizen under Chapter III of the Constitution of India, cannot be denied. Domestic jurisprudence must be considered based on constitutional provisions and on human rights jurisprudence derived from the Universal Declaration of Human Rights, 1948, which has international recognition as the moral code of conduct adopted by the United Nations General Assembly., The various judgments considered above reveal that an American citizen of Indian origin who holds an Overseas Citizen of India card is entitled to institute proceedings under the Protection of Women from Domestic Violence Act, provided she can establish a cause of action., In the present case, the children are pursuing their education while residing in Chennai. They are allegedly subjected to economic abuse and are not supported by their father for education and other activities. Accordingly, they are entitled to institute proceedings under the Protection of Women from Domestic Violence Act, and the issues are to be adjudicated. The revision petitioner is a person of Indian origin who married the respondent in Chennai, subsequently acquired American citizenship by naturalisation, and frequently visits India as an Overseas Citizen of India cardholder., As India is a signatory to the Universal Declaration of Human Rights, the Fundamental Rights included in Part III of the Indian Constitution are consistent with the provisions of the UN Declaration of Human Rights. These rights can be directly enforced against the government if they are violated., Additionally, the Convention on the Rights of the Child, 1989 is a binding agreement that expands on the rights contained in the Universal Declaration of Human Rights., Part I, Article 3(1) of the Convention on the Rights of the Child states that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration., Article 12(1) states that parties shall assure a child, who is capable of forming his or her own views, the right to express those views freely in all matters affecting the child, with the child's views given due weight in accordance with the child's age and maturity., In view of the above provisions, even under Section 21 of the Protection of Women from Domestic Violence Act, the respondent is entitled to seek custody of the minors, as the children are mature enough to depose before the Court about their choices and wishes and are capable of deciding what is best for their lives. The Court must bear in mind that the 15‑year‑old twin children are not mere minors but matured minors who, answering questions spontaneously with clear thoughts, cannot be treated as property to be handed over to a person with whom they are unwilling to reside. Forcible handing over of the 15‑year‑old minor children would result in psychological disadvantages, and the boys may not be able to lead a peaceful life in the absence of their mother, who has cared for them full‑time since birth., When the 15‑year‑old twin children emphatically state before the Court that they are willing to live with their mother in Chennai, India, the Court is of the opinion that their choice and wishes should be considered when evaluating orders of the US Court or the High Court in other proceedings. Forcible handing over of the twins would cause physical and psychological harm. Within three years, the boys will attain majority. They have firmly decided to stay with their mother in Chennai. Destroying their choices at this juncture through any Court proceedings would directly violate the judgments of the Supreme Court of India and the child rights recognized worldwide., The Division Bench of this Court, in the order dated 3 January 2023 in Habeas Corpus Petition No. 1689 of 2022, observed: 'We had an opportunity to interview the children and realized that they are under the complete control of the first respondent and were willing to forgo the facilities they enjoyed, expressing an intention to continue with online classes. In matters of this nature, the Court does not decide solely based on what the children say, since they are in the midst of a huge turmoil in their lives; therefore, the duty is cast upon the Court to decide based on the best interest of the children.', The Court held that the children are under the complete control of the respondent mother and were willing to forgo all the facilities they enjoyed in the United States, expressing an intention to continue with online classes. Based on these observations, the Division Bench concluded that the Court does not decide solely based on what the children say, since they are in the midst of a huge turmoil in their lives; therefore, the duty is cast upon the Court to decide based on the best interest of the children., As rightly pointed out by the learned Senior Counsel for the revision petitioner, this Court cannot sit on appeal for reconsideration. However, the Court is duty‑bound to consider the binding precedents of the Supreme Court of India in matters of child custody, coupled with the welfare of the child, their desire and reasonable preference, and the rights of Overseas Citizen of India (OCI) cardholders to institute legal proceedings in Indian courts., As elaborated earlier, the United Nations Convention on the Rights of the Child, 1989 is an international treaty, and Article 12 of the Convention states that States Parties shall assure a child, who is capable of forming his or her own views, the right to express those views freely in all matters affecting the child, with the child's views given due weight in accordance with the child's age and maturity., In Gayatri Bajaj vs. Jiten Bhalla [(2012) 12 Supreme Court Cases 471], the Supreme Court of India held that the desire of the child, together with the availability of a conducive and appropriate environment for proper upbringing and the ability and means of the parent concerned to care for the child, are relevant factors to be considered by the court while deciding custody of a minor. While all other factors are relevant, the desire, interest and welfare of the minor are the crucial considerations guiding the Court's determination., The Karnataka High Court, in Smt. Savitha Seetharam vs. Sri Rajiv Vijayasarathy Rathnam [2020 SCC Online Karnataka 2747], held that a child's preference in matters of custody is generally considered if the child is sufficiently intelligent and mature. Sub‑section (3) of Section 17 of the Guardianship Act stipulates that if the minor is old enough to form an intelligent preference, the Court may consider that preference. Thus, along with the concept of welfare of the minor, the inclination and opinion of the minor assume significance. If a minor is capable of understanding his surroundings, education, and future prospects, his views must be given weight, and it is the Court's responsibility to ascertain the child's desire in person., The Supreme Court, in Smriti Madan Kansagra vs. Perry Kansagra [(2021) 12 Supreme Court Cases 289], ruled that to decide the best interest of the child, the Court considers factors such as the child's age, nationality, whether the child is of an intelligible age and capable of making an intelligent preference, and the financial resources of either parent, which is a relevant but not sole determinant., In Nil Ratan Kundu vs. Abhijit Kundu [(2008) 9 Supreme Court Cases 413], the Supreme Court held that if the minor is old enough to form an intelligent preference or judgment, the Court must consider such preference., The Rajasthan High Court, in Goverdhan Lal vs. Gajendra Kumar [All India Reporter 2002 Raj 148], reiterated that, keeping the welfare of the child as the sole consideration, it is proper to ascertain the child's wishes regarding with whom he or she wants to live., Foreign judgments are not conclusive; they are a factor to be considered when assessing the best interest of the child, along with the wishes expressed by an intelligent and mature child., Looking into the various judgments of the Supreme Court of India and the High Courts across the country, due weightage is given to the choice and wishes of children who are minors but mature enough to express their desires. Considering those judgments and the spirit of the principles laid down, this Court is of the opinion that the directives issued in the Habeas Corpus Petition proceedings run counter to those principles, and the Supreme Court's judgments are binding precedents., The rights of parties to obtain relief under special enactments and personnel laws should not be denied by the courts. The Hindu Marriage Act and the Protection of Women from Domestic Violence Act are welfare legislations for women, and the respondent wife should not be deprived of reliefs to which she is entitled. In the present case, the respondent and her twin children, aged about 15 years, have been residing in Chennai for more than two years and have raised several allegations against the revision petitioner husband, including that he is not maintaining the children and is committing economic abuse. The nature and scope of the Habeas Corpus Petition is incomparable with proceedings under the Hindu Marriage Act and the Domestic Violence Act. Therefore, the right of the aggrieved woman to seek relief under these special enactments should not be taken away, as denying it would infringe her basic constitutional rights and the purpose of the special statutes., The Domestic Violence Act provides various reliefs to the aggrieved woman under different circumstances and is a continuing cause of action. Allegations relating to child custody and matrimonial disputes constitute a continuing cause and do not preclude the respondent from seeking reliefs under the Domestic Violence Act and the Hindu Marriage Act, which are independent and have distinct procedures. Therefore, the order passed in the Habeas Corpus Petition by this Court cannot bar seeking further reliefs under the Domestic Violence Act and the Hindu Marriage Act. Although the facts are identical, the continuing cause of action must be considered. In the present case, the 15‑year‑old mature twins have expressed, in a spontaneous manner, their clear intention to live with their mother in Chennai and continue their education and activities happily. Forcible handing over of the boys to the petitioner, who presently resides in the United States of America, would be detrimental to their interests and future life., When the mature boys expressed their desires before this Court in unambiguous terms, the Court cannot blindly decide, as the matrimonial disputes and domestic violence proceedings, including custody, constitute a continuing cause of action; therefore, the petitions filed by the respondent under the special enactments cannot be struck off. Denying relief to an aggrieved woman under the special statutes enacted for women's welfare would result in a miscarriage of justice and violate the basic right to life and liberty protected under the Constitution of India and the special enactments., When Overseas Citizen of India (OCI) cardholders are entitled to live in India indefinitely for their lifetime, they cannot be forced to leave India along with the children, as such a requirement would violate the Fundamental Rights guaranteed to OCI cardholders under the Constitution of India., In the present case, both the revision petitioner and the respondent were born and brought up in India and registered their marriage in Chennai under the provisions of the Hindu Marriage Act, 1955. They later acquired American citizenship by naturalisation. Due to a family dispute, the respondent and her twin children, aged about 15 years, returned to Chennai and decided to reside there peacefully. These factors play a pivotal role, and the Court cannot compel any OCI cardholder to leave India except by an authority of law.
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As far as the ex parte orders of United States Courts are concerned, though the foreign judgments are not conclusive and it is only a factor to be decided, the facts and circumstances would reveal that the respondent as well as the twin children have taken a decision to reside at Chennai Civil Revision Petition Numbers 3586 and 4156 of 2022 peacefully and they are not interested to return back to United States as they are terribly afraid of going back, since they have no trust on the revision petitioner. In the event of sending them back to United States forcibly, they will be practically on the streets in United States and the conscience of the Supreme Court of India does not permit to take such a decision, since the rights ensured under the Indian Constitution to the Overseas Citizenship of India cardholders are to be protected., Regarding the petition under the Hindu Marriage Act, 1955, ex parte decree of divorce granted by the United States Court cannot be a sole bar for the respondent to institute matrimonial proceedings in India. Thus, it is for the revision petitioner to contest the case instituted by the respondent before the Indian Courts and such petitions cannot be held as not maintainable, since the marriage between the petitioner and the respondent was solemnised at Chennai and it was registered under the provisions of the Hindu Marriage Act, 1955. Civil Revision Petition Numbers 3586 and 4156 of 2022., In view of the principles laid down by the Honorable Supreme Court of India, as elaborately discussed in the aforementioned paragraphs and considering the deposition of the fifteen‑year‑old twin children before the Supreme Court of India and also the decision of the respondent to continue to reside at Chennai, India as an Overseas Citizenship of India cardholder, the Supreme Court of India has no hesitation in arriving at a conclusion that the respondent is entitled to institute and maintain matrimonial proceedings, Domestic Violence Case proceedings and any other proceedings under the relevant statutes in Indian courts having jurisdiction for appropriate reliefs., Thus, the contentions of the revision petitioner are devoid of merits and accordingly, the revision petitioner is at liberty to contest the litigations filed by the respondent. The respondent is at liberty to seek all necessary reliefs under the relevant provisions of the statutes before the concerned court. Considering the facts, circumstances and the statements made by the respondent and the deposition made before the Supreme Court of India currently by the twin minor children aged about fifteen years, expressing their desires, the Supreme Court of India is inclined to grant interim custody of the twin minors in favour of the respondent herein, until the matrimonial disputes and the Civil Revision Petition Numbers 3586 and 4156 of 2022 domestic violence proceedings are disposed of on merits and in accordance with law., Accordingly, Civil Revision Petition Numbers 3586 and 4156 of 2022 are dismissed. However, there shall be no order as to costs. Consequently, the connected miscellaneous petitions are also dismissed. 01.02.2023
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Shaikh Sana Farheen Shahmir, Age 24 years, Occupation: Student; Shahmir Shamshoddin Shaikh, Age 46 years, Occupation: Service; Shaikh Khaja Begum Shaikh Shahmir, Age 40 years, Occupation: Household; Shaikh Saziya Sadaf Shaikh Shahmir, Age 19 years, Occupation: Student; all residing at Aziz Colony, Naregaon, Aurangabad, District Aurangabad. These are the original accused Nos. 1 to 4., The State of Maharashtra, through Kranti Chowk Police Station, District Aurangabad; Deepak Ramdas Sonawane, Age 26 years, Occupation: Nil, residing at Flat No. 223, Naik Nagar, Deolai Parisar, Aurangabad, Taluka and District Aurangabad. Mr. V.D. Sapkal, Senior Counsel in behalf; Mr. Patel Khizer, Advocate for Appellants; Mr. S.D. Ghayal, Additional Public Prosecutor for Respondent No.1 (State); Mr. S.B. Deshpande, Advocate for Respondent No.2., The appellants in Criminal Appeal No. 988 of 2022 are the original accused Nos. 1 to 4 in Crime No. 299 of 2022 registered with Kranti Chowk Police Station, District Aurangabad, lodged at the behest of Respondent No.2, the original informant. The appellants filed an application under Section 438 of the Code of Criminal Procedure, Anticipatory Bail Application No. 2353 of 2022, before the learned Special Judge of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Aurangabad. The application was rejected on 20 December 2022, and the appellants consequently filed Criminal Appeal No. 988 of 2022 under Section 14‑A(2) of the Atrocities Act., Learned Senior Counsel Mr. Sapkal, instructed by Mr. Patel Khizer, submitted that the learned Special Judge wrongly held that, considering the seriousness, sensitivity, gravity of the offence, the crucial stage of investigation and the bar under Sections 18 and 18‑A of the Atrocities Act, it would not be proper to release the accused on pre‑arrest bail. The Special Judge failed to consider that the First Information Report (FIR) itself states that the informant alleged a love affair between him and Accused No.1 and that amounts in lakhs of rupees were exchanged between them. The informant claimed the offence occurred between 1 March 2018 and 20 August 2022 but lodged the report with Kranti Chowk Police Station only on 2 December 2022, suppressing an earlier complaint filed with City Chowk Police Station, which had refused to take cognizance., The FIR also indicates suppression of an offence lodged with Chikalthana Police Station, Aurangabad, bearing Crime No. 363 of 2022 on 3 September 2022 by Accused No.1 against the informant for offences punishable under Sections 376(2)(n), 384, 354, 354‑D, 506 read with Section 34 of the Indian Penal Code. WhatsApp conversations between Accused No.1 and the informant show a love affair, which, according to the informant, negates any caste or community motive. The informant alleges that the parents of Accused No.1 (Accused Nos.2 and 3) insisted he convert to Islam, undergo circumcision (Khatana) in March 2021, and that he was forced to accept Islam under threat. The informant states he paid Accused No.1 a total of Rs. 11,00,000 and was later asked for an additional Rs. 25,00,000, which he refused, leading to a complaint under Section 354 of the Indian Penal Code filed by Accused No.1 on 29 September 2021., Further, the informant claims that he was threatened in the premises of the District Court, Aurangabad, and that Accused No.1 told him she married in January 2022, wanted a divorce, and demanded money. From February to August 2022 the informant transferred Rs. 1,70,000 to Accused No.1’s account. On 21 March 2022 the informant was allegedly abused in the name of his caste. He later filed an affidavit on 21 March 2022, notarised before a Notary Public, stating that the earlier offences were due to a misunderstanding, the parties had settled, and there was no pending dispute., The informant also alleges that he was forcibly taken to Gulmandi, Aurangabad in March 2021, confined in a room where Accused No.2 urinated on him, and video‑recorded by Accused No.1 to force his conversion to Islam. He was subsequently taken to City Chowk and a nearby hospital, told that he had been brought for circumcision, and warned that any statement would be defamed by making the video viral. He asserts that he was extorted large sums of money, abused in the name of his caste, and lodged multiple complaints with the Police Commissioner, Aurangabad, on 20 August 2022, 22 August 2022, 2 September 2022, etc., but no action was taken., The informant further alleges that the accused persons obtained assistance from a local MLA. Regarding an incident on 20 August 2022, the informant states that the accused, the MLA, the MLA’s security guard and two unknown persons abused him in the name of his caste and assaulted him at gunpoint in front of the MLA’s house. Statements recorded under Section 161 of the Code of Criminal Procedure by police officers mention the MLA’s involvement, yet the MLA has not been named as an accused nor arrested. The informant’s grievance is directed at the investigating agency, and the investigation remains incomplete., Learned Additional Public Prosecutor also supported the Special Judge’s reasons for rejecting the anticipatory bail, submitting that the FIR and police papers contain sufficient material to attract the provisions of the Atrocities Act. The accused were aware of the informant’s caste, abused him, assaulted him, attempted to convert him to Islam, and forced circumcision. Witness statements indicate force was used to compel conversion. Accordingly, the learned Trial Judge of the Aurangabad District Court correctly held that the application is barred under Sections 18 and 18‑A of the Atrocities Act., A review of Criminal Appeal No. 988 of 2022 shows that the FIR does not specifically implicate Accused No.4, who is the sister of Accused No.1 and is only 19 years old, whereas the informant is 26 years old. It is unlikely that she would have used caste‑based abuse, and the allegations against her are in concert with those against the other accused. Hence, offences under the Atrocities Act are prima facie not made out against Accused No.4., The FIR records the informant’s admission of a love affair with Accused No.1, stating they were classmates since 2018 and that love developed. He did not conceal his caste from Accused No.1 and was acquainted with Accused Nos.2 and 3 (the parents). When Accused No.1 insisted on marriage contingent upon his conversion to Islam, the informant informed the parents, who initially understood. The relationship later soured, but the informant continued to transfer money to Accused No.1 even after alleged abduction, confinement, and circumcision in March 2021. Despite multiple offences registered by Accused No.1 against him, the informant did not lodge further reports, which is noteworthy., In February 2022 Accused No.1 informed the informant that she had married but wanted a divorce and sought financial assistance. The informant continued to transfer money to her account, with the final transaction occurring on 12 August 2022. The informant’s attempts to lodge a report prior to 2 December 2022 appear to have been ignored by the police, and he did not file a private complaint before the appropriate court. The delay in lodging the FIR, as discussed in Prathvi Raj Chauhan v. Union of India (supra), undermines the credibility of the allegations. Since the relationship was based on love without caste or religious barriers, a prima facie case under the Atrocities Act cannot be established., On 3 September 2022 Accused No.1 filed an FIR against the informant with Chikalthana Police Station, alleging offences punishable under Sections 376(2)(n), 384, 354, 354‑D, 506 read with Section 34 of the Indian Penal Code, and claiming that she had given the informant approximately Rs. 96,000 online. This demonstrates financial transactions between the parties, which, when conducted online, reduce the likelihood of coercion, though the facts remain decisive., The narrative of a ‘Love‑Jihad’ has been advanced, but when love is genuine, the motive of forced conversion is less plausible. The FIR shows multiple opportunities for the informant to terminate the relationship, yet he did not do so. The mere fact that the parties belong to different religions does not automatically create a religious angle; it may simply be a case of mutual affection., Accused No.1 has filed other cases against the informant, some predating the present matter. The informant has been seeking action since 20 October 2021, alleging pressure to convert to Islam. When the Police Commissioner took no action, he approached the Judicial Magistrate First Class, Aurangabad, but did not allege caste‑based abuse, thereby not invoking the Atrocities Act. The magistrate, by order dated 31 December 2021, refused to direct an investigation under Section 156(3) of the Code of Criminal Procedure and ordered verification of the complainant’s claim. No further documentation indicates whether the informant challenged this order., On 21 March 2022 the informant executed a settlement affidavit, notarised before a Notary Public, stating that the dispute with Accused No.1 arose from a misunderstanding and that the parties had settled. Although the informant’s counsel objects to the document, at this prima facie stage it can be considered as a notarised settlement., Considering all the foregoing, it is our opinion that prima facie offences under the Atrocities Act are not made out and there is no bar under Sections 18 or 18‑A of the Atrocities Act to the application under Section 438 of the Code of Criminal Procedure. Consequently, the conclusion of the learned Special Judge is erroneous., Police records indicate that a substantial part of the investigation is complete and the charge‑sheet is imminent. Under such circumstances, physical custody of the appellants is unnecessary. Three of the appellants are women, a factor that must be considered. The appellants have complied with the interim protection conditions and have not misused the liberty granted., Initially the informant approached City Chowk Police Station, which declined to register the FIR. He subsequently lodged the same facts with Kranti Chowk Police Station without disclosing his earlier approach. This conduct is relevant and supports the grant of anticipatory bail to the appellants., Medical evidence confirms that the informant underwent circumcision, but the expert could not determine whether it was a natural occurrence, a surgical procedure, performed by a medical professional, or a traditional Islamic practice, nor could the timing be ascertained. Given the inconclusive nature of this evidence, it does not substantiate the FIR’s allegations at the prima facie stage, and the benefit of doubt must be given to the original accused., There is a statement from a police officer indicating that he and his team met the informant near the MLA’s house, but the investigation into the MLA’s alleged involvement is ongoing. We therefore refrain from commenting on that aspect., In view of the absence of a prima facie offence under the Atrocities Act, there is no impediment to granting anticipatory bail. Criminal Appeal No. 988 of 2022 should be allowed, setting aside the impugned order of the learned Special Judge., Regarding Criminal Appeal No. 20 of 2023 filed by Respondent No.2 (the original informant), the appeal challenges the extension of interim protection for three days granted by the Special Judge. The decision in Dr. Sameer Narayanrao Paltewar v. State of Maharashtra (supra) pertains to directions under Section 438(4) of the Maharashtra Amendment to the Code of Criminal Procedure, which allows a Sessions Court to extend interim protection for a maximum of three working days. However, once the Court determines that Sections 18 or 18‑A of the Atrocities Act bar the anticipatory bail application, Section 438(4) is inapplicable. No application for such directions was made by the prosecution, and consequently the extension of interim protection does not affect the present order. The appellants approached this Court within the prescribed time, and there is no ground to set aside the Special Judge’s order. Therefore, Criminal Appeal No. 20 of 2023 is dismissed., For the reasons stated above, the following order is passed: (I) Criminal Appeal No. 988 of 2022 is allowed. (II) The order passed in Anticipatory Bail Application No. 2353 of 2022 dated 20 December 2022 by the learned Special Judge under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Aurangabad, is set aside and the application is allowed. (III) Interim protection granted to the appellants in Criminal Appeal No. 988 of 2022 by this Court on 23 December 2022 is confirmed. In the event of arrest, the appellants – Shaikh Sana Farheen Shahmir, Shahmir Shamshoddin Shaikh, Shaikh Khaja Begum Shaikh Shahmir and Shaikh Saziya Sadaf Shaikh Shahmir – shall be released on bail on a personal bond of Rs. 15,000 each with one solvent surety of the same amount. (IV) Appellant No.2, Shahmir Shamshoddin Shaikh, shall attend Kranti Chowk Police Station every Monday between 11.00 a.m. and 2.00 p.m. until the charge‑sheet is filed and shall cooperate with the investigation. As Appellants Nos.1, 3 and 4 are women, only Appellant No.2 is required to attend. (V) If the presence of Appellants Nos.1, 3 and 4 is required, the Investigating Officer may call them only during daytime. (VI) The appellants shall not tamper with the evidence of prosecution witnesses or indulge in any criminal activity. (VII) Criminal Appeal No. 20 of 2023 is dismissed., After the pronouncement of the order, the learned Advocate for Respondent No.2 in Criminal Appeal No. 988 of 2022 sought a stay of the order. The learned Special Judge had rejected the anticipatory bail application but continued interim protection for three days, after which this Court granted interim protection. Since the appeal has been allowed on merits and the offence under the Atrocities Act is not prima facie established, granting a stay would remove protection from the appellants and permit their arrest, which is impermissible. Accordingly, the prayer for a stay is rejected.
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Special Court for the Trial of Criminal Cases against Sitting and Former Members of Parliament and Members of Legislative Assembly (State) Present: Shrimati Naina K.V., Additional Chief Judicial Magistrate Wednesday, 2nd day of August, 2023 (11th Sravana 1945) Criminal Case No. 18/2021 Complainant: State represented by Sub Inspector of Police, Central Police Station, Ernakulam in Crime No. 886/2020 (by Sri Namitha Jathavedan, Assistant Public Prosecutor Grade II, In‑charge). Accused: (by Advocate Sri Mohammed Siyad) Offence: under sections 143, 147 read with 149, 269 and 271 of the Indian Penal Code, section 118(e) of the Kerala Police Act and sections 4(2)(a), 4(2)(e) read with section 5 of the Kerala Epidemic Disease Ordinance, 2020. Plea: Not Guilty. Finding: Not Guilty. Sentence or Order: Accused persons are acquitted under section 248(1) of the Criminal Procedure Code of the offences punishable under sections 143, 147 read with 149, 269 and 271 of the Indian Penal Code, section 118(e) of the Kerala Police Act, 2011 and sections 4(2)(a), 4(2)(e) read with section 5 of the Kerala Epidemic Disease Ordinance, 2020., Hibi Eden, son of George Eden, Member of Parliament, residing at Ambatt House, 35/326 B, George Eden Road, Deshabhimani Road, Kaloor, Ernakulam, Kerala (age 38). T.J. Vinod, son of T.M. Joseph, Member of Legislative Assembly, residing at Thyvelikkakath House, Naroth Road, Thammanam P.O., Kochi (age 57). V. D. Satheeshan, son of Damodharan, Leader of Opposition, residing at Devaragam, Kesari Junction, North Paravur, Ernakulam, Kerala (age 72). Anwar Sadath, son of Abdul Sathar, Member of Legislative Assembly, residing at Oolikkara House, Perumbayam, Nedumbassery P.O., Chengamanad, Aluva Taluk, Pin 683585 (age 72). Roji M. John, son of John M.V., Member of Legislative Assembly, residing at Mullanmadackal House, Ayroor P.O., Ernakulam, Pin 683579 (age 39). V. P. Sajeendran, son of Padmanabhan, Social worker, residing at Anicad House, Vallothiamala, Kolenchery, Ernakulam (age 52). M. O. John Ouso, Social worker, residing at Manjali House, New Lane Road, Thottakkattukara P.O., Aluva, Pin 683108, Ernakulam (age 72). Tony Chammini Thomas, Social worker, residing at Mullanmadackal House, Ayroor P.O., Ernakulam, Pin 683579 (age 51)., This case arose upon a final report filed by the Sub Inspector of Police, Central Police Station in Crime No. 886/2020 alleging commission of offences punishable under sections 143, 147 read with 149, 269 and 271 of the Indian Penal Code, section 118(e) of the Kerala Police Act and sections 4(2)(a), 4(2)(e) read with section 5 of the Kerala Epidemic Disease Ordinance, 2020 by the accused numbers 1 to 8., The prosecution case in brief is as below: On 19.06.2020 from 10.15 hours till 12.20 hours, the accused numbers 1 to 8 organized themselves into an unlawful assembly alleging that the Kerala Government had been ignoring expatriates. They assembled near Menaka bus stop beside Shanmugham road in Ernakulam village, in prosecution of their common object to spread COVID‑19. They did so in violation of the government order and the guidelines of the health department restraining public assembly, unnecessary journeys and conducting public functions. They acted negligently so as to spread COVID‑19 and to cause danger to public safety. They violated the provisions of the Kerala Epidemic Disease Ordinance, 2020. Therefore, the accused are alleged to have committed the aforesaid offences., The First Information Report in this case was registered by Sri Shaji P.A., then Sub Inspector of Police, Central Police Station, Ernakulam. Later Sri Joseph T.S., another Sub Inspector of the same police station, took charge of the investigation and filed a final report alleging commission of offences punishable under sections 143, 147 read with 149, 188, 269 and 271 of the Indian Penal Code, section 118(e) of the Kerala Police Act and section 4(2)(a) read with section 5 of the Kerala Epidemic Disease Ordinance, 2020. Cognizance was not taken for the offence punishable under section 188 of the Indian Penal Code, since the procedures under section 195 of the Criminal Procedure Code were not complied with., On issuance of process, all the accused persons entered appearance and were released on bail. Copies of the relevant records relied on by the prosecution were served on them. Charge was framed for the offences punishable under sections 143, 147 read with 149, 269 and 271 of the Indian Penal Code, section 118(e) of the Kerala Police Act and sections 4(2)(a), 4(2)(e) read with section 5 of the Kerala Epidemic Disease Ordinance, 2020, read over and explained to the accused persons who pleaded not guilty and claimed to be tried., Three witnesses were cited in the final report, among whom CW1 and CW2 were examined as PW1 and PW2 and exhibits P1 series were marked. The learned Assistant Public Prosecutor gave up the examination of CW3 stating that he was not the investigating officer and filed an additional witness list citing the investigating officer as an additional witness. Though process was issued to the said witness, the prosecution failed to produce him at court and reported that he could not be produced, so the evidence was closed. Thereafter, the accused were examined under section 313(1)(b) of the Criminal Procedure Code regarding the incriminating circumstances made out against them in the prosecution evidence. They denied all the incriminating circumstances levelled against them and submitted that a false case was registered due to political motivation., No oral or documentary evidence was adduced by the accused., The points that arose for consideration are: Did the accused persons form themselves into an unlawful assembly on 19.06.2020 from 10.15 hours till 12.20 hours near Menaka bus stop beside Shanmugham road in Ernakulam village, as alleged? Did the accused persons commit rioting as alleged? Did the accused persons act in prosecution of their common object to spread COVID‑19 and thereby commit offences punishable under sections 143, 147 read with 149 of the Indian Penal Code as alleged? Did the accused negligently act so as to spread COVID‑19 disease which is dangerous to life and thereby commit offence punishable under section 269 of the Indian Penal Code as alleged? Did the accused disobey the order of the government and guidelines of the health department and thereby commit the offence punishable under section 271 of the Indian Penal Code as alleged? Did the accused persons fail to keep social distancing and violate the provisions in the Kerala Epidemic Diseases Ordinance, 2020 as alleged? Did the accused persons act in such a way to cause danger to public or failure in public safety thereby commit offence punishable under section 118(e) of the Kerala Police Act, 2011 as alleged? Are the accused guilty? What shall be the sentence or order to be passed? For the sake of brevity and to avoid repetition of discussion on facts and evidence, these points are being considered together., The prosecution allegation was that on 19.06.2020 from 10.15 hours till 12.20 hours, the accused numbers 1 to 8 organized themselves into an unlawful assembly near Menaka bus stop beside Shanmugham road in Ernakulam village, in prosecution of their common object to spread COVID‑19. It was also alleged that the accused committed rioting., The defence version of the case was that a false case was registered against the accused who are the leaders of the political party named Congress so as to suppress protests against the government., At the time of hearing, the learned Assistant Public Prosecutor has argued before the Special Court for the Trial of Criminal Cases against Sitting and Former Members of Parliament and Members of Legislative Assembly that the evidence adduced by the prosecution would prove the formation of an unlawful assembly by the accused in prosecution of their common object to spread COVID‑19., The learned counsel for the accused has argued that the prosecution could not succeed in proving the allegations against the accused persons. According to him, no specific acts alleged to be committed by the accused had been stated in the prosecution records and no evidence was adduced. He stated that there is nothing to prove that the accused have committed any of the acts specified in section 141 of the Indian Penal Code., PW1 is the then Sub Inspector and PW2 is the then Civil Police Officer respectively of Central Police Station who are alleged to have witnessed the incident involved in this case., PW1 has deposed that on 19.06.2020 he, along with PW2, while on law and order patrol duty, reached the bus stop at Menaka beside Shanmugham road at 10.15 hours. They saw a strike conducted by about 50 members of the political party named Congress including V. D. Satheesan, Anwar Sadath, Sajeendran, Vinod and Tony Chemmani. According to him, the accused numbers 1 to 8 led a sathyagraha demanding the government to bring expatriates to Kerala in the event of outbreak of COVID‑19. According to him, the accused conducted a strike in violation of the orders of the government and guidelines of the health department. They did not obey the order to disperse and later dispersed at 12.20 hours on their own. As there was possibility to spread COVID‑19, they were not arrested. He registered Exhibit P1 First Information Report on the basis of Exhibit P1(a) suo motu report. He deposed that the investigation was conducted by another officer. According to him, he could identify the accused persons., He was cross‑examined thoroughly by the learned counsel for the accused. He deposed that he enquired and collected the names of accused from them. When he was asked about the absence of that fact in Exhibit P1 series, he replied that he enquired the matters with other members of the party and not with the accused. He admitted that he had previous acquaintance with the accused persons, but he stated that he mentioned the names as told to him by the members. He admitted that he did not state that he had previous acquaintance with the accused persons., When questioned regarding the place of occurrence he deposed about the presence of a stage. He admitted that he did not specify the acts of the accused in Exhibit P1(a) suo motu report. He also admitted that he did not produce documents to prove the social distance to be kept on 19.06.2020. He also admitted that he did not produce documents to prove that COVID protocol was in existence on that particular day. He admitted that he did not mention the distance kept by the accused in Exhibit P1 series. He also deposed that the accused were not shown to the investigating officer by him and that the investigating officer did not show the accused to him for the purpose of identification. He denied the suggestion of the learned counsel for the accused that a false case was registered against the accused for the purpose of suppressing protests against the State government., PW2 deposed in tune with the deposition of PW1. He mentioned the presence of V. D. Satheeshan, T.J. Vinod and Tony Chemmani. He also deposed that he could identify the accused persons. During cross‑examination he deposed that he saw the First Information Report prepared by PW1. According to him, he gave his statement to the investigating officer before the registration of the First Information Report. Though he deposed that he stated the names of accused, that was not seen in the statement recorded under section 161 of the Criminal Procedure Code. When asked about that, he deposed that he did not have anything to say. He admitted that he did not mention the specific acts done by the accused. He did not reply specifically as to whether the accused were later shown for identification. He deposed about the presence of a shed and stated that the accused sat on the chairs kept in the shed. When he was questioned regarding his statement that he saw the accused standing at the place of occurrence as a group, he replied that that was not correct. He admitted that he did not state the social distance to be kept at the relevant time and that he did not state the distance kept by the accused. He also denied the suggestion that a case was registered due to political motivation., The allegation was that the accused organized themselves into an unlawful assembly near Menaka bus stop beside Shanmugham road in Ernakulam village, in prosecution of their common object to spread COVID‑19 and committed rioting. To prove the formation of an unlawful assembly by the accused persons the prosecution has to prove that the accused did any of the acts specified in section 141 of the Indian Penal Code. As per section 141 of the Indian Penal Code, an assembly of five or more persons is designated as an unlawful assembly if the common object of the persons composing that assembly is: First, to overawe by criminal force, or show of criminal force, the Central or any State Government or Parliament or the Legislature of any State or any public servant in the exercise of the lawful power of such public servant; Second, to resist the execution of any law, or of any legal process; Third, to commit any mischief or criminal trespass, or other offence; Fourth, by means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; Fifth, by means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do., On going through the evidence of PW1 and PW2, it can be seen that they deposed during chief examination that the accused conducted a strike. They did not mention the specific acts of the accused even though they were thoroughly cross‑examined by the learned counsel for the accused. There is nothing in their evidence to prove that the accused committed any of the acts specified in section 141 of the Indian Penal Code. When asked about the place of occurrence PW1 mentioned the presence of a stage. PW2 deposed about the presence of a shed and according to him, the accused sat on the chairs in the said shed. He himself denied his earlier statement that the accused were standing at the place of occurrence in a group to conduct a strike., PW1 has deposed that he has previous acquaintance with the accused persons, but he did not state that in the prosecution records. Though he stated that he has previous acquaintance, he himself has deposed during cross‑examination that he learned about the names of the accused from other members of the Congress party who were present, which shows that his statement that he has previous acquaintance with the accused is incorrect. This strengthens the contention of the learned counsel for the accused that a false case was registered against the leaders of the Congress Party. Further, the prosecution failed to produce the investigating officer at court as a witness, which is fatal to the prosecution. Moreover, PW1 and PW2 have mentioned the name of a few accused persons and did not mention the specific acts done by them., In Vayalali Girishan and another v. State of Kerala (2016 KHC 204), the honourable High Court of Kerala held that if there are only vague allegations of an unlawful assembly then there is no reasonable circumstance to find the accused guilty. There is absolutely no evidence to prove that the accused persons have committed rioting as alleged. The prosecution could not adduce evidence in support of their case., Further, though the allegation is that the accused gathered in prosecution of their common object to spread COVID‑19, there is no evidence to prove that the accused shared such an object., In Sureshkumar T.M. v. State of Kerala (2022 KHC 1014), the honourable High Court of Kerala held that every assembly of five or more persons will not become an unlawful assembly. An assembly of five or more persons would become illegal only when they have a common object and the said object falls within any of the five categories specified in section 141 of the Indian Penal Code. In the case on hand, the prosecution has not adduced any evidence to prove that the accused committed any of the above acts., In Prakash Karat and others v. State of Kerala and another (2011 (6) KHC 531), the honourable High Court of Kerala held that the essence of the offence of unlawful assembly lies in the consensus of purpose of more than five persons to commit an offence specified in section 141 of the Indian Penal Code. When the common object of the assembly does not fall within any of the five categories specified in section 141 of the Indian Penal Code, even if the number of persons in the assembly is more than five, the act alleged will not attract the offence of unlawful assembly. In the instant case, the common object of the accused as projected by the prosecution was to spread COVID‑19. The prosecution could not adduce evidence to prove that the accused did not keep social distance or that they violated the orders of the government and guidelines of the health department., In Rasheed and others v. State of Kerala (2015 (4) KLJ 70), the honourable High Court of Kerala held that there has to be evidence on record of unlawful assembly having reached consensus of purpose of achieving any of the various objectives enumerated in section 141 of the Indian Penal Code., There is absolutely no evidence to prove that the accused formed themselves into an unlawful assembly and committed rioting. Hence, I find that the prosecution has failed to prove that the accused persons have committed the offences punishable under sections 143, 147 read with 149 of the Indian Penal Code. Hence these points are found against the prosecution., It was alleged that the accused acted negligently by unlawfully assembling near Menaka bus stop on 19.06.2020, so as to spread COVID‑19. Though the prosecution examined PW1 and PW2, whose evidence was discussed in earlier points, there is no evidence to prove that the accused assembled or acted negligently. The prosecution could not adduce cogent and convincing evidence to prove the allegation. Hence, I find that the prosecution has failed to prove the commission of offence punishable under section 269 of the Indian Penal Code by the accused persons. This point is found against the prosecution., The prosecution alleged that the accused persons violated the order of the government and guidelines of the health department with respect to the prevention of the spread of COVID‑19 and thereby committed the offence punishable under section 271 of the Indian Penal Code. It was also alleged that the accused persons violated the provisions of the Kerala Epidemic Diseases Ordinance, 2020. The prosecution could not adduce any evidence to prove the social distance to be kept on the date of occurrence of the alleged incident. No documents were produced to prove the social distance or the existence of orders or guidelines restraining public gathering. Consequently, the social distance to be kept at the relevant time at the place of occurrence is not proved. I find that there is no evidence to prove that the accused persons have committed the offence punishable under section 271 of the Indian Penal Code and sections 4(2)(a), 4(2)(e) read with section 5 of the Kerala Epidemic Diseases Ordinance, 2020. These points are found against the prosecution., Commission of offence punishable under section 118(e) of the Kerala Police Act, 2011 was also alleged against the accused persons stating that they gathered near Menaka bus stop without keeping social distance and acted so as to cause danger to public or failure in public safety. According to the prosecution the accused assembled with the intention to spread COVID‑19. Section 118(e) of the Kerala Police Act, 2011 provides that any person who knowingly does any act which causes danger to public or failure in public safety shall on conviction be punishable with imprisonment for a term which may extend to three years or with fine not exceeding Rs.10,000 or with both. I have already discussed in earlier points that the formation of an unlawful assembly or a gathering by the accused persons is not proved. Likewise there is no evidence to prove that the accused failed to keep social distance. There is no evidence to prove that the accused acted so as to spread COVID‑19. There is nothing in the evidence adduced by the prosecution to prove that the accused have committed any act which was dangerous to public or which would cause failure in public safety. Hence, I find that the prosecution has failed to prove that the accused persons have committed the offence punishable under section 118(e) of the Kerala Police Act, 2011. This point is found against the prosecution., In view of my findings on points 1 to 7, I find that the accused persons are not guilty of the offences punishable under sections 143, 147 read with 149, 269 and 271 of the Indian Penal Code, section 118(e) of the Kerala Police Act, 2011 and sections 4(2)(a), 4(2)(e) read with section 5 of the Kerala Epidemic Disease Ordinance, 2020. This point is found against the prosecution., In the result, the accused persons are acquitted under section 248(1) of the Criminal Procedure Code of the offences punishable under sections 143, 147 read with 149, 269 and 271 of the Indian Penal Code, section 118(e) of the Kerala Police Act, 2011 and sections 4(2)(a), 4(2)(e) read with section 5 of the Kerala Epidemic Disease Ordinance, 2020. The bail bonds of the accused persons shall stand cancelled and they are set at liberty. Dictated to the Confidential Assistant, transcribed by her, corrected and pronounced by me in open court on this 2nd day of August, 2023. Additional Chief Judicial Magistrate., Appendix: Witnesses examined for the prosecution: PW1: Shaji P.A., aged 52, son of P.K. Aliyar, Kanayanoor, examined on 19.01.2022. PW2: Krishna Kumar, aged 34, son of Dasan V., Cherthala, examined on 19.01.2022. Exhibits marked for the prosecution: P1: First Information Report dated 19.06.2020 proved through PW1 on 19.01.2022. P1(a): Suo motu Report dated 19.06.2020 proved through PW1 on 19.01.2022.
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Ms. Kangana Ranaut, Petitioner, versus The State of Maharashtra and Mr. Javed Akhtar, Respondents. Mr. Rizwan Siddiquee with Mr. Aditya Charan and Ms. Sumreen Aalana, by Siddiquee and Associates, Advocates for the Petitioner. Mr. Jaykumar Bharadwaj and Mr. Harsh Ramchandani, Advocates for Respondent No.2. Mr. H. S. Venegavkar, Special Public Prosecutor and Mr. Arfan Sait, Additional Public Prosecutor for the Respondent State., The Petitioner has preferred this Petition by invoking writ jurisdiction under Article 226 of the Constitution of India and Section 482 of Code of Criminal Procedure and prayed for the following relief: that the High Court of Bombay may be pleased to issue any appropriate writ, direction or order under Article 226 of the Constitution of India, 1950, read with Section 482 of Code of Criminal Procedure, 1973, thereby ordering a stay on the proceedings filed by Respondent No.2 before the Metropolitan Magistrate, 10th Court at Andheri, against the Petitioner for offences under Sections 499 and 500 of Indian Penal Code, 1860 bearing Criminal Complaint No. 2575/SS/2020, till the final decision of the revision on merit so that the cross cases be tried together., The Petitioner is complainant in Criminal Complaint No.441/SW/2021 filed in the Court of learned Metropolitan Magistrate, 10th Court, Andheri, Mumbai. Respondent No.2 has been impleaded as accused in the said complaint. Verification statement of the Petitioner was recorded on 4th July 2022. The learned Magistrate had issued process against the accused/Respondent No.2 vide order dated 24th July 2023, for offences under Sections 506 and 509 of Indian Penal Code. The Respondent No.2 filed complaint viz. Criminal Complaint No.2575/SS/2020 before the Court of learned Metropolitan Magistrate, 10th Court, Andheri, Mumbai on 3rd November 2020, for offences under Sections 499 and 500 of the Indian Penal Code, 1860. Verification statement of Respondent No.2 was recorded on 3rd December 2020. Vide order dated 1st February 2021, process was issued for offences under Sections 499 and 500 of Indian Penal Code against the accused (Petitioner)., The trial in Criminal Complaint No.2575/SS/2020 had commenced. Evidence of witnesses is recorded. Whereas, the order issuing process passed in Criminal Complaint No.441/SW/2021 filed by the Petitioner has been challenged before the Sessions Court by preferring a Revision Application and vide order dated 24th August 2023, the said proceedings are stayed. The Revision Application is pending for hearing., The Petitioner’s prayer in this Petition is to stay the proceedings initiated by Respondent No.2 against the Petitioner for offences under Sections 499 and 500 of Indian Penal Code in Criminal Complaint No.2575/SS/2020 till the Revision Application preferred by Respondent No.2 challenging the proceedings initiated by the Petitioner is decided and to try both the cases together being cross cases., Learned Advocate for the Petitioner submitted that the genesis of both the complaints is the incident of meeting, which had occurred in March 2016. Thus, cases filed by the Petitioner as well as Respondent No.2 are in the nature of cross cases and required to be tried together in the same Court. Cross cases are arising out of the same incident. It is a settled principle of law as laid down in various decisions of the Apex Court that cross cases are required to be tried simultaneously. Criminal Complaint No.441/SW/2021 as well as Criminal Complaint No.2575/SS/2020 are required to be tried together being cross cases. The complaint filed by the Petitioner refers to a serious incident. However, process issued in the said complaint has been challenged by the Respondent by preferring a Revision Application and the proceedings are stayed by the Sessions Court. The case initiated against the Petitioner cannot proceed individually and therefore, the Revision Application, which is pending before the Sessions Court, is required to be decided before the final decision could be arrived in the case filed against the Petitioner. It is submitted that both cases arise out of the same incident. It is the case of the Petitioner, which shall bring out the truth of the dispute between the Petitioner and Respondent No.2. In the event the case of Respondent No.2 is allowed to proceed while the case of the Petitioner is stayed, it would be against the established principles of natural justice and fair trial., Learned Advocate for the Petitioner has relied upon the following decisions: Nathi Lal and Others Vs. State of Uttar Pradesh and Another; Sudhir and Others Vs. State of Madhya Pradesh; State of Madhya Pradesh Vs. Mishrilal (deceased) and Others; Zora Singh Vs. State of Haryana; Nitinbhai Saevatilal Shah and Another Vs. Manubhai Manjibhai Panchal and Another delivered by the Supreme Court in Criminal Appeal No. 1703 of 2021 decided on 1st September 2011., In the case of Nathi Lal and Others Vs. State of Uttar Pradesh and Another, it is observed that in cross cases the fair procedure to be adopted is to direct the learned Judge to try both the cases one after the other. After recording evidence in one case is completed, the Court must hear the argument but must reserve the judgment. Thereafter, the Court must proceed to hear the cross case and after recording all the evidence, it must hear the arguments but reserve the judgment in that case. The same Court must thereafter dispose of the matters by two separate judgments. In the case of Sudhir Vs. State of Madhya Pradesh, it is observed that cross cases are to be tried simultaneously or in quick succession by the same Magistrate. In the case of State of Madhya Pradesh Vs. Mishrilal and Others, it is held that cross cases are to be tried together to avoid conflicting decisions. The Punjab and Haryana High Court held that cross cases be tried together as the decision in either case will influence the other case., Learned Counsel for Respondent No.2 submitted that the case which is initiated first has already commenced and evidence is recorded. The complaint filed by Respondent No.2 relates to the interview given by the Petitioner on 19th July 2020 containing insinuations amounting to defamation. The Petitioner filed the complaint subsequently alleging commission of offences in respect to the incident of 2016. The complaints are not cross cases. Even considering the principle laid down by the Apex Court that cross cases are to be tried simultaneously, the case filed first by Respondent No.2 has already proceeded. The complaint is filed by the Petitioner belatedly. Prior to filing of the complaint, process was already issued in the complaint filed by Respondent No.2. The Petitioner had initiated several proceedings in the nature of transfer of cases and the prayer was rejected by the Court of learned Chief Metropolitan Magistrate. The Petitioner had also challenged the said orders before the Sessions Court by preferring Revision Applications and the relief was not granted. The Petitioner had also challenged the process initiated by Respondent No.2 before the Sessions Court and this Court. The proceedings were dismissed. After the trial in the complaint initiated by Respondent No.2 has come to an end, the Petitioner has moved this application for a stay of the proceeding initiated against her. The Petitioner is attempting to stall the proceedings initiated against her, which had reached a particular stage after recording evidence. The Petitioner was not prevented from making such a prayer at an earlier point of time. After exhausting all the remedies for quashing and transferring proceedings, the Petitioner now contends that both cases are in the nature of cross cases and required to be tried simultaneously and therefore the proceeding before the trial Court in respect of the complaint initiated by Respondent No.2 should be stayed., Respondent No.2 filed a complaint vide Criminal Complaint No.2575/SS/2020 on 3rd November 2020 for offences under Sections 499 and 500 of Indian Penal Code. It was alleged that the Petitioner in her interview dated 19th July 2020 to a TV channel made defamatory statements against Respondent No.2. Process was issued against the accused vide order dated 1st February 2021., The Petitioner filed a complaint before the Court of learned Metropolitan Magistrate being Criminal Complaint No.441/SW/2021 on 16th September 2021, for offences under Sections 383, 384, 387, 503, 506, 509 read with Sections 44 and 30 of Indian Penal Code. It was alleged that despite the Petitioner’s personal dispute with her co-star, the accused called the Petitioner and her sister to her house and criminally intimidated and threatened her and forced her to tender an apology to her co-star. The incident had allegedly occurred in March 2016. Verification statement of the Petitioner was recorded on 4th July 2022. Process was issued by the learned Magistrate against Respondent No.2 for offences under Sections 506 and 509 of Indian Penal Code vide order dated 24th July 2023., The Petitioner challenged the order of summons issued against her by preferring Criminal Revision Application No.77 of 2021 before the Sessions Court. The application was rejected by order dated 5th April 2021. The Petitioner preferred Criminal Application No.545 of 2021 before this Court for quashing proceedings in Criminal Complaint No.2575/SS/2020. Vide order dated 9th September 2021, the application was rejected., The Petitioner filed an application under Section 410 of Code of Criminal Procedure for transfer of Criminal Complaint No.2575/SS/2020 pending before the Court of Metropolitan Magistrate, 10th Court, Andheri, Mumbai to any other Court. The transfer case No.40/TA/2021 was rejected by the Court of Additional Chief Metropolitan Magistrate, 19th Court, Esplanade, Mumbai (In charge Chief Metropolitan Magistrate) vide order dated 21st October 2021. The Petitioner filed application viz. Case No.55/TA/2021 under Section 410 of Code of Criminal Procedure before the learned Chief Metropolitan Magistrate for transfer of proceedings in Criminal Complaint No.441/SW/2021 pending before the Court of learned Metropolitan Magistrate, 10th Court, Andheri, Mumbai to any other Court. The learned In‑charge Chief Metropolitan Magistrate rejected the application vide order dated 18th December 2021., The order dated 21st October 2021 rejecting the transfer application was challenged by the Petitioner before the Sessions Court vide Criminal Revision Application No.251 of 2021. The learned Additional Sessions Judge vide order dated 31st December 2021 rejected the Criminal Revision Application., The Petitioner filed Transfer Application No.3 of 2022 before the Court of Sessions to transfer Criminal Complaint No.2575/SS/2020 from the Court of Metropolitan Magistrate, 10th Court, Andheri, Mumbai to any other Court. The Petitioner preferred Transfer Application No.5 of 2022 to transfer Criminal Case No.441/SS/2021 to any other Court. Vide order dated 9th March 2022, the learned 2nd Additional Principal Judge, Sessions Court, Mumbai rejected both applications., The Petitioner preferred an application for exemption from appearance under Section 205 of Code of Criminal Procedure. Vide order dated 22nd March 2022, the application was rejected. The Petitioner filed an application in Case No.2575/SS/2020 under Section 311 of Code of Criminal Procedure to record the statement of a witness. Vide order dated 24th March 2023, the learned Magistrate rejected the application., Thus, the complaint was filed by the Petitioner on 16th September 2021 after rejection of Criminal Revision Application No.77 of 2021 challenging the order of process by the Sessions Court and after the order dated 9th September 2021 passed by this Court rejecting the application for quashing the proceedings., The complaint was filed by the Petitioner more than five years after the alleged incident., The Court of competent jurisdiction has stayed the proceedings initiated by the Petitioner against Respondent No.2. The first case proceeded first. The learned Magistrate has recorded the complainant’s evidence in the first case, i.e., the case filed by Respondent No.2 against the Petitioner. The statement under Section 313 of Code of Criminal Procedure was recorded. The case had proceeded to the next level. The Revision Application preferred by Respondent No.2 is pending. It cannot be assumed that it would be dismissed., Thus, it is clear that the complaint of the Petitioner was filed on 16th September 2021 after initiating proceedings challenging the proceedings initiated by Respondent No.2. The Petitioner filed applications for transfer of complaints. After adverse orders were passed by Courts, the present petition was filed on 29th September 2023. The Petitioner contends that the genesis of the incident is the meeting held in March 2016. The complaint filed by Respondent No.2 had proceeded with trial and the evidence is already recorded. The Revision Application challenging the process order against Respondent No.2 is pending before the Sessions Court in respect of the proceeding initiated by the Petitioner. At this stage, the relief sought in this case cannot be granted., Learned Advocate for the Petitioner has relied upon several decisions in support of the submission that cross cases are required to be tried together and by the same Court. There is no debate about the law laid down by the Apex Court in several decisions. However, in the facts of this case it is apparent that the trial in the complaint initiated by Respondent No.2 had already commenced and reached the final stage. The Petitioner preferred this petition at a belated stage. After resorting to remedies challenging proceedings against the Petitioner, the complaint was filed by the Petitioner against Respondent No.2. Thereafter the present application was preferred on the grounds stated herein. After filing the complaint belatedly, the Petitioner contended that both cases are to be tried simultaneously. Considering this factual matrix, no relief as sought in this petition can be granted., Criminal Writ Petition (ST.) No.130 of 2024 stands rejected and disposed off.
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Case Number DLNE01-000610-2021. State versus Sandeep Kumar. Session Case No. 78/2021, First Information Report No. 66/2020, Police Station Karawal Nagar. Judgment dated 31 October 2023. The matter concerns the son of Sh. Ramesh Chand, resident of House Number 230, Gali Number 11, Phase‑9, Shiv Vihar, Karawal Nagar, Delhi. The case was registered on the complaint of Sh. Shokeen, son of Sh. Mange Ram, residing at House Number A71, Phase‑10, 25 Foota Road, Shiv Vihar, Karawal Nagar, Delhi. The complainants of the clubbed complaints include Mohd. Yamin, Shakil Saifi, Asif Khan, Sajid, Mohd. Anees, Aisha Parvin, Toshif Ahmad, Jakir Hussain, Bablu, Iyashin, Jubair Ahmad, Shahid Ali, Mohd. Maihrajuddin, Mohd. Amil, Abdul Aziz Khan, Mohd. Ikramuddin, Mohd. Naushad, Shabaaz Khan and Salim. The case was instituted on 16 July 2020, judgment reserved on 18 October 2023 and pronounced on 31 October 2023. The accused was acquitted. Section 437‑A of the Criminal Procedure Code was complied with by the accused., The accused was charge‑sheeted by the police for offences punishable under Sections 147, 148, 149, 427, 436, 380, 454, 506 and 188 of the Indian Penal Code. On 28 February 2020, a First Information Report was registered at Police Station Karawal Nagar following a written complaint from Sh. Shokeen, son of Sh. Mange Ram, resident of House Number A71, Phase‑10, 25 Foota Road, Shiv Vihar, Karawal Nagar, Delhi. Shokeen alleged that on 25 February 2020 at around 9 o’clock a large crowd attacked his house, vandalised and set fire to his shop and house, and stole several articles and jewellery. He claimed that he and his family managed to save their lives and that he had received threats from some boys on the preceding Monday, and that he would identify them if shown., During the investigation, Head Constable Purshottam prepared a site plan at the instance of the complainant Shokeen. On 8 March 2020, further investigation was assigned to Sub‑Inspector Mandeep Kukana, who clubbed nineteen other complaints in the present case on the basis of proximity of place and time. The complainants included Mohd. Yamin, Shakil Saifi, Asif Khan, Sajid, Mohd. Anees, Aisha Parvin, Toshif Ahmad, Jakir Hussain, Bablu, Iyashin, Jubair Ahmad, Shahid Ali, Mohd. Maihrajuddin, Mohd. Amil, Abdul Aziz Khan, Mohd. Ikramuddin, Mohd. Naushad, Shabaaz Khan and Salim. On 10 March 2020, the Investigating Officer recorded a supplementary statement of Shokeen and arrested the accused Sandeep Kumar in First Information Report No. 82/2020, Police Station Karawal Nagar. On 17 April 2020, the Investigating Officer formally arrested the accused in the present case based on his confessional statement. Shokeen identified Sandeep Kumar as a member of the mob that attacked his premises and as a person who threatened to burn him and his family alive. Subsequent statements of other complainants, including Shakil Saifi, Sajid, Mohd. Yamin, Mohd. Anees, Asif Khan, Aisha Parvin and Toshif Ahmad, were recorded, leading to the addition of Sections 380 and 454 of the Indian Penal Code. On 22 June 2020, further investigation was assigned to Investigating Officer/Sub‑Inspector Ankit Kumar, who recorded statements of additional complainants Abdul Aziz Khan, Muhammad Amil, Muhammad Ikramuddin and Jakir Hussain, seized photographs of damage and loot, and added Section 188 of the Indian Penal Code for violation of the proclamation of prohibitory order under Section 144 of the Criminal Procedure Code, as well as Section 506 of the Indian Penal Code. Due to the COVID‑19 pandemic, statements of the remaining complainants were not recorded., After completion of the investigation, on 16 July 2020 a charge‑sheet was filed by Sub‑Inspector Ankit Kumar before the Duty Metropolitan Magistrate (North‑East), Delhi, against the accused Sandeep Kumar for offences punishable under Sections 147, 148, 149, 427, 436, 380, 454, 506 and 188 of the Indian Penal Code. On 11 December 2020, the Chief Metropolitan Magistrate (North‑East) took cognizance of the offences under Sections 147, 148, 149, 427, 436, 454 and 506 of the Indian Penal Code, but declined to take cognizance of the offence under Section 188 for lack of a complaint under Section 195 of the Criminal Procedure Code. The case was committed to the Delhi Sessions Court by order dated 21 January 2021. On 28 February 2022, a supplementary charge‑sheet along with a complaint under Section 195 of the Criminal Procedure Code and certain documents was filed and sent to the Sessions Court by order dated 21 April 2022. The supplementary charge‑sheet reported that no clue was found in respect of the remaining eight complaints., On 5 August 2021, charges were framed against the accused Sandeep Kumar for offences punishable under Sections 147, 148, 427, 436, 380, 506 and 454 of the Indian Penal Code read with Section 149 of the Indian Penal Code. The charges alleged that on 25 February 2020 at about 9 p.m. at Phase‑10, Gali No. 7, 25 Foota Road, Shiv Vihar, Karawal Nagar, the accused, being a member of an unlawful assembly, participated in rioting, mischief, arson, theft, criminal intimidation and house trespass, each in conjunction with his unidentified associates, thereby committing offences under the respective sections. On 23 August 2022, an additional charge was framed for an offence punishable under Section 188 of the Indian Penal Code, alleging that the accused, as a member of the unlawful assembly, was present at the place of the incident in violation of the proclamation issued under Section 144 of the Criminal Procedure Code by the competent authority on 24 February 2020., The prosecution examined eleven witnesses. Witness Sajid, residing at House Number A‑640, Gali No. 22/24, Shiv Vihar, Karawal Nagar, Delhi, testified that on 22 February 2020 his family heard a commotion, saw an armed mob, closed the house door, called the police and later found the house broken into with goods stolen. Witness Yamin, residing at House Number A‑341, Gali No. 22/24, Phase‑10, Shiv Vihar, Karawal Nagar, Delhi, stated that on 25 February 2020 his family heard a commotion, were rescued by the Border Security Force, and later discovered that the house doors had been broken and goods stolen. Witness Shakil Saifi, residing at House Number A‑635, Gali No. 22/24, Phase‑10, Shiv Vihar, Karawal Nagar, Delhi, recounted a similar incident on 25 February 2020, after which his family stayed with relatives and later found the house vandalised and looted. Duty Officer Mithilesh, who was on duty at the police station on 28 February 2020, testified to the registration of the First Information Report. Witness Ashok Kumar identified the accused in a photograph shown to him by the Investigating Officer on 2 August 2020. Several other witnesses, including PW10, PW11 and others, provided statements, photographs and documents that were seized and recorded as evidence., The accused Sandeep Kumar denied all allegations and pleaded innocence under Section 313 of the Criminal Procedure Code, claiming that he was falsely identified by witness PW10 and Head Constable Ashok Kumar, that witnesses gave false testimony at the behest of the Investigating Officer, and that he was not present at the scene of the incident. He did not lead any evidence in his defence. Counsel for the accused, Sh. V. S. Dhangar, argued that the identification by PW10 and Head Constable Ashok was unreliable, that the accused was falsely implicated after his arrest in another case, and that no recovery was effected from the accused. The Special Public Prosecutor for the State, Sh. Nitin Rai Sharma, countered that PW10 had identified the accused from a photograph taken at the scene and that the identification was made while PW10 was on duty., In order to appreciate the evidence, the places of incidents mentioned in the various complaints were listed, showing that only two complaints concerned Gali No. 7 (Shokeen and Mohd. Maihrajuddin) while the remaining complaints pertained to different lanes. The supplementary charge‑sheet reported that seven of the remaining complainants had been examined and none were present at their houses at the time of the incident, leaving eight complaints untraced. The court observed that it was difficult to understand how the police could file a charge‑sheet and an untraced report together in the same case. Accordingly, the Delhi Sessions Court acquitted the accused Sandeep Kumar.
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This was a wrong practice, because the complaints other than those made by Shokeen were clubbed for investigation in this case without having a sound basis to do the same. In respect of an untrace report or closure report, every complainant has the right to make a representation before the Metropolitan Magistrate against such report of the Investigating Officer. In the present case, due to several complaints wrongly taken up together in one First Information Report for investigation and filing one composite report of investigation for all such complaints, this important right of complainants could not be exercised by them., The prosecution had presented two eye witnesses of the case. One was Prosecution Witness 5 (Shokeen) and another was Prosecution Witness 10, Head Constable Ashok Kumar. However, Prosecution Witness 5 deposed that on 25.02.2020 at about 7 p.m. he had left his house with his wife for Loni and that until the time he was away, the mob had not come to his house. He returned to his house after around one week. Such testimony shows that he was not an eye witness of any incident., Prosecution Witness 10 was an official of the same Police Station and testified that on 02.08.2020 he and other staff were shown photographs by the Investigating Officer to confirm whether they had seen any persons appearing in those photographs during the riots. He identified one photograph out of nine as that of the accused Sandeep Kumar. He further stated that he saw the accused in a mob at Gali number 7 where the mob was vandalizing a corner property. The Investigating Officer did not examine this witness about the description of the property being vandalized, nor did he take the witness to the place of incident for identification of the properties. Consequently, it is uncertain which properties were seen by the witness being vandalized., Moreover, there were twenty different places of different incidents taken up for investigation in this case, but none of the Investigating Officers bothered to ask these two alleged eye witnesses about the nineteen additional incidents. Therefore, it is apparent that, except for examining the nineteen additional complainants, no other investigation was made to find out the time of those occurrences as well as the culprits behind those incidents. In such circumstances, it would be an injustice to the nineteen additional complainants if the fate of their complaints is decided by the Additional Sessions Judge, North-East District, Karkardooma Courts, Delhi in the present case., As far as the incident at the premises of the first complainant Shokeen is concerned, he testified that his neighbour informed him that after he left his house, rioters had vandalized his house. The neighbour was not produced before the court. In view of these circumstances, I find that only circumstantial evidence exists to show that the premises of Prosecution Witness 5 were vandalized and looted by a mob. This fact was not disputed by the defence. Based on the information received from Prosecution Witness 5, the prevailing situation of riot at that time, and the condition of the house noted by the Investigating Officer, it is assumed that the house was vandalized and articles were looted by a mob., As far as identification of the accused is concerned, Prosecution Witness 10 is the only witness of the prosecution who vouched about seeing the accused in the mob at Gali number 7 at about 9 p.m. He deposed that he was going back to the Police Station when he saw this mob. However, he did not confirm if any duty‑diary entry was made by him about witnessing the fact. He stated that he had informed the Duty Officer about this incident, but the prosecution did not produce any record to show that such information was actually recorded by the Duty Officer. In such a situation, identification of the accused after a long gap from the incident and after a long gap from the arrest of the accused on 17.04.2020 is not reliable, especially when Prosecution Witness 10 himself deposed that he did not know the accused otherwise nor had he seen the accused prior to the incident., My foregoing discussion and observations lead me to hold that the prosecution, though it established the incident of riot, vandalism and looting at the premises of Prosecution Witness 5, failed to prove the presence of the accused in the unlawful assembly responsible for such incident beyond reasonable doubt. I also find that the additional nineteen complaints were wrongly clubbed in this First Information Report and were not completely and properly investigated., In view of my foregoing discussions, observations and findings, the accused Sandeep Kumar is hereby acquitted of all the charges leveled against him in this case. At the same time, the Station House Officer is directed to take up the additional nineteen complaints for further investigation separately from this case. Announced in open court today on 31.10.2023 by the Additional Sessions Judge, North-East District, Karkardooma Courts, Delhi.
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The petitioners challenge the validity of the Karnataka Amendment Act No. 28 of 2021, which amends the Karnataka Police Act, 1963 (hereinafter the Principal Act). The amendment criminalises the playing or facilitation of online games. After service of notice, the respondents, appearing through the Advocate General, filed the common Statement of Objections and an additional Statement of Objections resisting the challenge., The petitioners in Writ Petition No. 18703/2021 and Writ Petition No. 19322/2021 are societies registered under the Societies Registration Act. The petitioners in Writ Petition Nos. 18729/2021, 18732/2021, 18733/2021, 18738/2021, 18803/2021, 18942/2021, 19241/2021 and 22371/2021 are companies incorporated under the Companies Act. The petitioners in Writ Petition Nos. 19271/2021 and 19450/2021 are individuals. Some of the petitioners who are companies are directors. All the petitioners are associated with online gaming in one way or another, including games such as rummy, carom, chess, pool, bridge, crossword, scrabble and fantasy sports such as cricket., The challenge to the Amendment Act is based on the following grounds: lack of legislative competence because the Amendment Act does not fall within Entry 34, List II, Schedule VII of the Constitution of India; violation of Article 21 of the Constitution since playing games and sports falls within the right to life and liberty and the doctrine of privacy; violation of the fundamental right to freedom of speech and expression guaranteed under Article 19(1)(a) because playing games of skill is a facet of speech and expression and criminalising it amounts to an unreasonable restriction under Article 19(2); violation of the fundamental right to profession or business guaranteed under Article 19(1)(g) read with Article 301; manifest arbitrariness because the Amendment Act fails to recognise the normative difference between a game of skill and a game of chance, contrary to the jurisprudence of Chamarbaugwala; and the impugned measure being a result of excessive paternalism and populism, imposing a blanket ban on online games of skill which is constitutionally unsustainable., The respondents oppose the petitions on the following grounds: a Public Interest Litigation (Writ Petition No. 13714/2020) directed the State to consider a legislative ban on all forms of online gambling and betting, leading the State to introduce the Amendment Act; the rapid proliferation of online gaming platforms involving betting and wagering has caused public disorder, with about 28,000 cases registered across the State, several suicides and ruined families, justifying criminalisation of wagering, betting or risking money on the result of an event, whether a game of chance or a game of skill; the Amendment Act clarifies that the provisions relating to gaming apply to online gaming and platforms, making offences cognisable and non‑bailable with stricter punishments, while persons who play a game without risking cash or kind are not covered; the petitioners lack locus standi and cause of action as no coercive action has been taken against them or users of their platforms, and anticipatory relief cannot be granted by a constitutional court; companies, being juristic persons, cannot avail the fundamental rights guaranteed under Article 19(1) of the Constitution; and the respondents rely on decisions of the Supreme Court of India and various High Courts., Having heard the learned counsel for the parties and after perusing the petition papers, the Karnataka High Court is inclined to grant indulgence in the matter for the following reasons. For ease of understanding, the comparative table below shows the text of the Principal Act prior to the 2021 amendment and the text after the amendment. Additions are shown in bold italics., Clause 3 of Section 2 defines a \Common Gaming House\ as a building, room, tent, enclosure, vehicle, vessel or place in which any instruments of gaming are kept or used for the profit or gain of the owner, occupier or user, whether or not the person has a right to use it, the profit being derived by charge for the use of the instruments or the premises or by subscription or other payment. Clause 7 of Section 2 states that gaming does not include a lottery but includes all forms of wagering or betting in connection with any game of chance, except wagering or betting on a horse race. Explanation (i) to Clause 7 clarifies that wagering or betting includes the collection or soliciting of bets, receipt or distribution of winnings or prizes, in money or otherwise, in respect of any act intended to aid or facilitate wagering or betting. The amendment expands Clause 7 to include online games involving all forms of wagering or betting, including tokens, electronic means and virtual currency, but excludes a lottery and horse‑race betting. Clause 11 of Section 2 defines \Instruments of Gaming\ to include any article used as a subject or means of gaming, such as computers, mobile applications, software, and electronic records, as well as the proceeds and winnings of any gaming. Clause 12A defines \Online Gaming\ as games played online by means of instruments of gaming, computers, networks, mobile applications or any communication device. Clause 13 defines \Place\ to include a building, tent, booth or any area, whether permanent or temporary, including recreation clubs, virtual platforms, mobile applications, the internet or any communication device., Section 78(1)(vi) and (vii) post‑amendment proscribe the operation of online gaming platforms offering games of skill. Sections 79, 80, 87, 114, 128A and 176 contain the penal provisions. Section 79 provides for imprisonment up to three years and a fine up to one lakh rupees for keeping a common gaming house, with higher punishments for subsequent offences. Section 80 provides for imprisonment up to three years and a fine up to one lakh rupees for being found in a common gaming house for the purpose of gaming, with higher punishments for subsequent offences. Section 87 deals with gaming in public streets, prescribing imprisonment up to six months and a fine up to ten thousand rupees, with forfeiture of any money found on the person. Section 114 penalises a person who, contrary to a direction under Sections 54, 55, 56 or 63, re‑enters an area from which he was directed to remove himself, with imprisonment up to two years (not less than six months) and a fine of at least twenty‑five thousand rupees, up to one lakh rupees. Section 128A makes all offences under Chapter VII, except Section 87, and offences under Sections 90, 108, 113, 114 and 123 cognisable and non‑bailable; offences under Section 87 remain cognisable and bailable. Section 176 declares that the provisions of Sections 79 and 80 shall not apply to the playing of any pure game of skill and to wagering by persons taking part in such a game of skill., The Karnataka Police Act, 1963 was enacted by the State Legislature for the regulation of the police force, maintenance of public order and prevention of gambling. It received the assent of the President of India on 18 January 1964 and was gazetted on 13 February 1964, coming into force on 2 April 1965. The Act has been amended a dozen times between 1965 and 2021. Except for the 2021 amendment, the previous amendments are not challenged. The Amendment Act, Karnataka Act No. 28 of 2021, which brings substantial changes to the Principal Act, received the assent of the Governor of Karnataka on 4 October 2021 and came into force on 5 October 2021. The amendment introduces an expansive definition of \gaming\ under Section 2(7) to include all online games involving any form of wagering or betting, widening the definition of \wagering or betting\ to cover games of skill involving money, while excluding horse racing subject to conditions. It also alters the definitions of \common gaming house\, \instruments of gaming\, \online gaming\ and \place\ to encompass online platforms and virtual environments. Consequently, owners of online gaming houses, providers of online gaming facilities and players of online games become liable to imprisonment and fines under the penal provisions, with Section 128A making these offences cognisable and non‑bailable., The celebrated jurist H. M. Seervai, in his magnum opus *Constitutional Law of India* (Volume III, Fourth Edition, Tripathi, paragraph 22.262), observes that references to the evils of gambling can be drawn from Hindu law, Hindu religious texts, and Mohammedan law, showing that gambling has been condemned in India since ancient times. Historical evidence shows that gambling is as old as mankind, with the Greeks and Romans practising it, while most scriptures, native and foreign, shun it. In India, sages such as Kanvasha Ailusha composed cautionary verses in the Rig Veda (10.34) lamenting the ruin caused by dice gambling. Epic narratives like the *Mahabharata* describe King Yudhishthira gambling away his kingdom, wife and himself. Various Smritis (Yaajnavalkya, Kaatyayana, Manusmriti) and Kautilya's *Arthashastra* prescribe severe punishment for gambling, and the Tamil classic *Tirukkural* condemns it., During the Constituent Assembly, there was considerable discussion on the inclusion of Entry 34 in the State List (originally Entry 45 in the Draft Constitution) concerning betting and gambling. Members Shibban Lal Saksena and Lakshminarayan Sahu suggested omitting the entry, mistakenly believing that its omission would eliminate betting and gambling. Dr. B. R. Ambedkar clarified that omission would leave the State powerless to regulate betting and gambling, whereas inclusion allows the State to either permit or prohibit the activity. Part III of the Constitution outlaws untouchability (Article 17), human trafficking and begar (Article 23), and child labour (Article 24). Part IV contains Directive Principles of State Policy, including Article 47 directing prohibition of intoxicating drinks and harmful drugs, and Article 48 directing proscription of cow slaughter. No specific prohibition on gambling is mentioned, but the State has the power to legislate on the subject under Entry 34, List II, Schedule VII of the Constitution, as discussed by the Supreme Court of India in various judgments.
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Learned Advocate General appearing for the respondents per contra contended that the legislative competence of the State extends to and beyond Entry 34. He points out Entry 1 (Public order), Entry 2 (Police), Entry 6 (Public health and sanitation) and Entry 26 (Trade and commerce) in the same List. According to respondents, the Amendment Act is a piece of ragbag legislation, to borrow the words of Honourable. It has long been settled that the legislative power emanates inter alia from Articles 245 and 246 (now additionally Article 246A) of the Constitution and that the Legislative Entries are only the fields of law making. These Entries are mere legislative heads of enabling character designed to define and delimit the respective areas of legislative competence of the Union and the States. The legislative Entries in whichever List they occur should be interpreted with the widest amplitude; the purpose of the enumeration of legislative power is not to define or delimit the description of law that the Parliament or the State Legislatures may enact in respect of any of the subjects assigned to them. Such a power constitutionally given is plenary in its content and quality. The enumeration is made to name a subject for the purpose of assigning to that power. The names or descriptions employed in legislation are usually of the briefest kind; it is more so when it comes to the constitutions., In this regard what Gray J., of US Supreme Court more than a century ago observed in JUILLIARD vs. GREENMAN becomes instructive. The Constitution by apt words of designation or general description, marks the outlines of the powers granted to the National Legislature; but it does not undertake, with the precision and detail of a code of laws, to enumerate the sub-divisions of those powers, or to specify all the means by which they may be carried into execution., When a word or an expression acquires a special connotation in law, it can be safely assumed that the legislature has used such word or expression in its legal sense as distinguished from its common parlance or the dictionary meaning. These legal concepts employed in a Constitution if construed by the Courts as such, acquire the constitutional spirit. Further when such terms are construed by the Supreme Court of India to mean a particular thing, other Courts cannot venture to interpret the same to mean something else. What we are construing is a constitutional concept, i.e., Betting and gambling and not just two English words. Learned Advocate General's argument of 'widest amplitude' therefore cannot stretch the contours of a constitutional concept like this to the point of diluting its identity., Gambling, betting and other associated concepts are not of recent origin. They have been there in American and English realm of laws since centuries as mentioned in CHAMARBAUGWALLA I itself. We are not required to start afresh every time we want to examine the operation of some terms employed in the Constitution, even if it transpires that these terms do need a revised construction; we have a basis from which we can start. EMPLOYEES UNION 22, the High Court of Australia (five judges) observed although we are to interpret the words of the Constitution on the same principles of interpretation as we apply to any ordinary law, the very principles of interpretation compel us to take into account the nature and scope of the Act we are interpreting, to remember that it is a Constitution, a mechanism under which laws are to be made, and not a mere Act which declares what the law is to be., Learned advocates appearing for the petitioners submitted that the term 'Betting and gambling' employed in Entry 34, List II having been treated as a constitutional concept in CHAMARBAUGWALLA I and II and in the cases that followed, as distinguished from an ordinary legal concept this Court too has to construe it accordingly. They contended that substantially the Amendment Act being pari materia with the statutes of other States, the approach of this Court to the matter needs to be consistent with the relevant decisions of several High Courts in the country. They also notified that some of these have been affirmed by the Supreme Court of India on challenge., Justice Oliver Wendell Holmes in TOWNE vs. EISNER said, \A word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in colour and content according to the circumstances and time in which it is used\. The two words namely Betting and gambling as employed in Entry 34, List II have to be read conjunctively to mean only betting on gambling activities that fall within the legislative competence of the State. To put it in a different way, the word betting employed in this Entry takes its colour from the companion word gambling. Thus, it is betting in relation to gambling as distinguished from betting that does not depend on skill that can be regulated by State legislation; the expression gambling by its very nature excludes skill. It is chance that pervasively animates it., This interpretation of the said Entry gains support from the six-decade-old CHAMARBAUGWALA jurisprudence, as discussed below: inter alia was considering whether the Bombay Lotteries and Prize Competition Act, 1948, is a legislation relatable to Entry 34, List II, i.e., Betting and gambling. To answer this question, the definition of prize competition in the said legislation was examined with all its constituents and variants such as gambling prize competition, gambling adventure, gambling nature and gambling competition. After undertaking this exercise, the Court observed: On the language used in the definition section of the 1939 Act as well as in the 1948 Act, as originally enacted, there could be no doubt that each of the five kinds of prize competitions included in the first category to each of which the qualifying clause applied was of a gambling nature. Nor has it been questioned that the third category, which comprised \any other competition success in which does not depend to a substantial degree upon the exercise of skill\, constituted a gambling competition., At one time the notion was that in order to be branded as gambling the competition must be one success in which depended entirely on chance. If even a scintilla of skill was required for success the competition could not be regarded as of a gambling nature. The Court of Appeal in the judgment under appeal has shown how opinions have changed since the earlier decisions were given and it is not necessary for us to discuss the matter again. It will suffice to say that we agree with the Court of Appeal that a competition in order to avoid the stigma of gambling must depend to a substantial degree upon the exercise of skill. Therefore, a competition success wherein does not depend to a substantial degree upon the exercise of skill is now recognized to be of a gambling nature. What emerges from the above observations is that: gambling is something that does not depend to a substantial degree upon the exercise of skill, and therefore something which does depend, ought not to be considered as gambling; as a logical conclusion, a game that involves a substantial amount of skill is not a gambling., The Court was treating the question, whether it was constitutionally permissible for section 2(d) of the Prize Competition Act, 1955, which defined Prize Competition to take within its embrace not only the competitions in which success depended on chance but also those wherein success depended to a substantial extent on the skill of player. What is observed in CHAMARBAUGWALA I becomes further clear by the following observations in this case: If the question whether the Act applies also to prize competitions in which success depends to a substantial degree on skill is to be answered solely on a literal construction of s.2(d), it will be difficult to resist the contention of the petitioners that it does. The definition of prize competition in s.2(d) is wide and unqualified in its terms. There is nothing in the working of it, which limits it to competitions in which success does not depend to any substantial extent on skill but on chance; competitions in which success depends to a substantial extent on skill and competitions in which it does not so depend, form two distinct and separate categories., The distinction between the two classes of competitions has long been recognised in the legislative practice of both the United Kingdom and this country, and the Courts have, time and again, pointed out the characteristic features which differentiate them. And if we are now to ask ourselves the question, would Parliament have enacted the law in question if it had known that it would fail as regards competitions involving skill, there can be no doubt, having regard to the history of the legislation, as to what our answer would be. The conclusion is therefore inescapable that the impugned provisions, assuming that they apply by virtue of the definition in s.2(d) to all kinds of competitions, are severable in their applications to competitions in which success does not depend to any substantial extent on skill, examining as to whether the rummy was a game of chance or a game of skill., Strangely, CHAMARBAUGWALA I and II do not find a reference in this decision; however, what the Court observed being consistent with the said decisions and the following observations are profitably reproduced: 12. The game of rummy is not a game entirely of chance like the three-card game mentioned in the Madras case to which we were referred. The three card game which goes under different names such as flush, brag etc. is a game of pure chance. Rummy, on the other hand, requires a certain amount of skill because the fall of the cards has to be memorised and the building up of Rummy requires considerable skill in holding and discarding cards. We cannot, therefore, say that the game of rummy is a game of entire chance. It is mainly and preponderantly a game of skill. The chance in Rummy is of the same character as the chance in a deal at a game of bridge. In fact in all games in which cards are shuffled and dealt out, there is an element of chance, because the distribution of the card is not according to any set pattern but is dependent upon how the cards find their place in the shuffled pack. From this alone it cannot be said that Rummy is a game of chance and there is no skill involved., In K.R. Lakshmanan, a Three Judge Bench of the Supreme Court of India was examining the vires of amendments to the Madras City Police Act, 1888 and the Madras Gaming Act, 1940 whereby the exception carved out for wagering on horse-racing from the definition of gaming was deleted, much like the effect of the Amendment Act herein which inter alia widens the definition of gaming to include wagering on games of skill, that hitherto enjoyed constitutional protection., K. Satyanarayana and some notable decisions of foreign jurisdictions, the Court succinctly stated the difference between a game of chance and a game of skill, as under: 3. The new Encyclopedia Britannica defines gambling as \The betting or staking of something of value, with consciousness of risk and hope of gain on the outcome of a game, a contest, or an uncertain event the result of which may be determined by chance or accident or have an unexpected result by reason of the bettor's miscalculations\. According to Black's Law Dictionary (Sixth Edition) \gambling involves, not only chance, but a hope of gaining something beyond the amount played. Gambling consists of consideration, an element of chance and a reward. Gambling in a nutshell is payment of a price for a chance to win a prize. Games may be of chance, or of skill or of skill and chance combined. A game of chance is determined entirely or in part by lot or mere luck. The throw of the dice, the turning of the wheel, the shuffling of the cards, are all modes of chance. In these games the result is wholly uncertain and doubtful. No human mind knows or can know what it will be until the dice is thrown, the wheel stops its revolution or the dealer has dealt with the cards. A game of skill, on the other hand although the element of chance necessarily cannot be entirely eliminated, is one in which success depends principally upon the superior knowledge, training, attention, experience and adroitness of the player., The expression 'gaming' in the two Acts has to be interpreted in the light of the law laid down by this Court in the two Chamarbaugwala cases, wherein it has been authoritatively held that a competition which substantially depends on skill is not gambling. Gaming is the act or practice of gambling on a game of chance. It is staking on chance where chance is the controlling factor. 'Gaming' in the two Acts would, therefore, mean wagering or betting on games of chance. It would not include games of skill like horse-racing. We, therefore, hold that wagering or betting on horse-racing - a game of skill - does not come within the definition of 'gaming' under the two Acts. Even if there is wagering or betting with the Club it is on a game of mere skill and as such it would not be gaming under the two Acts., The Punjab and Haryana High Court in VARUN GUMBER held that the fantasy games predominantly involve skill and therefore, do not fall within gambling activities and that the said games are protected under Article 19(1)(g) of the Constitution. The matter went to the Supreme Court of India in SLP No. 026642/2017 and was dismissed on 15 September 2017., A Division Bench of the Honorable Bombay High Court was considering in public interest litigation jurisdiction as to whether playing of fantasy games by virtual teams amounted to gambling. Having discussed CHAMARBAUGWALA, K.R. Lakshmanan, etc., it answered the question in the negative specifically recording a finding that the success in Dream11 fantasy sports depends upon users' exercise of skill based on superior knowledge, judgment and attention, and that the result of the game was not dependent on the winning or losing of the particular team in the real world game on any particular day. The Court said, \It is undoubtedly a game of skill and not a game of chance.\ The matter was carried upward to the Supreme Court of India in SLP (Criminal) No. 43346/2019 which was dismissed on 13 December 2019., The Division Bench of the Honorable High Court of Tamil Nadu, having extensively discussed the further development in K.R. Lakshmanan, has invalidated Act 1 of 2021 which had amended the Tamil Nadu Gaming Act, 1930, as being ultra vires the Constitution. The observations at paragraph 125 of the judgment are profitably reproduced below: It is in such light that Betting and gambling in Entry 34 of the State List has to be seen, where betting cannot be divorced from gambling and treated as an additional field for the State to legislate on, apart from the betting involved in gambling. Since gambling is judicially defined, the betting that the State can legislate on has to be the betting pertaining to gambling; ergo, betting only on games of chance. At any rate, even otherwise, the judgments in the two Chamarbaugwala cases and in 24 (2019) SCC OnLine BOM 13059 25 (2021) SCC Online MAD 2762 (DB) K.R. Lakshmanan also instruct that the concept of betting in the Entry cannot cover games of skill., Following the Supreme Court of India rulings and the above Madras decision, a learned Single Judge of the Honorable Kerala High Court statutory notification that was issued under Section 14A of the Kerala Gaming Act, 1960 which had proscribed online rummy played for stakes. The Court at paragraph 36 of its judgment observed: \As such playing for stakes or playing not for stakes can never be a criterion to find out whether a game is a game of skill. The game of Online Rummy will also have to be held to be a game of skill\., A Division Bench of the Honorable Rajasthan High Court jurisdiction as to whether online fantasy sports/games offered on Dream11 platform amounted to gambling/betting. Having inter alia referred to the question, it was answered in the negative and the writ petition was dismissed with costs. The Court also discussed its Rajasthan decision which had already considered the said issue. Further, challenge to the said decision was repelled by the Supreme Court of India on 30 July 2021. It is relevant to mention that the Court referred to the decision of New York Supreme Court in WHITE vs. CUOMO, which had taken the view that games of the kind were games of chance. This should be a complete answer to the learned Advocate General who heavily banked upon decision of a US Court in support of his contention., Note: The collective ratio unmistakably emerging from all the decisions mentioned in paragraphs IX & X above put succinctly is: A game of chance and a game of skill although are not poles asunder, they are two distinct legal concepts of constitutional significance. The distinction lies in the amount of skill involved in the games. There may not be a game of chance which does not involve a scintilla of skill and similarly, there is no game of skill which does not involve some elements of chance. Whether a game is a 'game of chance' or a 'game of skill', is to be adjudged by applying the Predominance Test: a game involving substantial degree of skill, is not a game of chance, but is only a game of skill and that it does not cease to be one even when played with stakes. As a corollary of this, a game not involving substantial degree of skill, is not a game of skill but is only a game of chance and therefore falls within the scope of Entry 34 in the State List., The Second US Circuit Court of Appeals, New York, tossed out the conviction and vacated the 886 F. Supp. 2d 164, decided in 2012 indictment of Mr. Lawrence who ran the warehouse wherein the poker game Texas Hold Em was played. He was taking 5 percent of each night's earning to cover the cost of his staff and profit for himself. In this game, the pot went not to the luckiest among the participants, but to the most deft i.e., the player who could guess his opponent's intentions and disguise his own, make calculated decisions on when to hold and fold, and quickly decide how much to wager. A waitress floated around with food and drinks and play lasted until breakfast. Judge Jack B. Weinstein held that poker is more a game of skill than a game of chance and therefore, game operators cannot be prosecuted under vague federal law that prohibits running an illegal gambling business. Although this decision was reversed in appeal, the finding that poker is a game of skill is left undisturbed., The Gambling Law Review: Israel by Liran Barak (Herzog Fox & Neeman) dated 07 June 2021 states that: The Israeli Penal Law 5737-1977 places a general ban on gambling activity, including all forms of lotteries, betting and games of chance. Further restrictions under the Penal Law outlaw ancillary services pertaining to gambling such as the operation of venues where gambling activity takes place. Chapter 12 of the Penal Law defines prohibited game as a game at which a person may win money, valuable consideration or a benefit according to the result of a game, those results depending more on chance than on understanding or ability. The Supreme Court of Israel in October 2018 decided a tax dispute in OFFICER, TEL AVIV relating to winnings generated by a poker player in tournaments outside the country and opined that poker may not be a game of chance., The Gambling Law Review: Australia by Jamie Nettelson, Shanna Protic Dib and Brodie Campbell dated 07 June 2021 mentions about a gambling case in the Supreme Court of New South Wales which having analysed the distinction between a bet and a game in the context of Interactive Gaming Act 2019 (IGA) held that petitioner's products are betting products and it was providing a lawful gambling service in compliance with the IGA. The inarticulate premise of this judgement is that gaming activities that involve skill do not fall into prohibited categories of gambling i.e., nearly our predominance test., The vehement contention of Learned Advocate General that gaming includes both a 'game of chance' and a 'game of skill', and sometimes also a combination of both, is not supported by his reliance on M.J. Sivani vs. State of Karnataka. We are not convinced that M.J. Sivani recognises a functional difference between actual games and virtual games. This case was decided on the basis of a wider interpretation of the definition of 'gaming' in the context of a legislation which was enacted to regulate the running of video parlours and not banning of video games; true it is that the Supreme Court of India treated certain video games as falling within the class of 'games of chance' and not of 'games of skill'. However, such a conclusion was arrived at because of manipulation potential of machines that was demonstrated by the reports of a committee of senior police officers; this report specifically stated about the tampering of video game machines for eliminating the chance of winning. This decision cannot be construed repugnant to Chamarbaugwala jurisprudence as explained in K.R. Lakshmanan. We are of a considered view that the games of skill do not metamorphose into games of chance merely because they are played online, ceteris paribus. Thus, Sivani is not the best vehicle for drawing a distinction between actual games and virtual games. What heavily weighed with the Court in the said decision was the adverse police report., It is pertinent to recall Lord Halsbury's observation in QUINN vs. LEATHAM that a case is only authority for what it actually decides in a given fact matrix and not for a proposition that may seem to flow logically from what is decided. This observation received its imprimatur in (Police) & ENTRY 26 (Trade and commerce) IN THE (a) The learned Advocate General appearing for the respondents and the learned Advocate Mr. Sridhar Prabhu appearing for the intervener passionately contended that the power to enact a statute can be traceable to Articles 245 and 246 read with multiple legislative Entries; this as a proposition is correct vide UJAGAR PRINTS, supra. They rely inter alia upon Entry 1 (Public order) and Entry 2 (Police). However, the invocability of this proposition is stoutly disputed by the petitioners in the given fact matrix of the case., The vehement contention of learned Advocate General that several persons and families have been ruined because of online games and that all over the State, police have registered thousands of cases, may be arguably true. With the proliferation of online platforms, owing to the digital revolution, the entire landscape of gaming has undergone a cataclysmic change. Young minds are prone to addiction to the cyber games, cannot be much disputed. All this however, does not fit into the parameters of Entry 1 (Public order) and Entry 2 (Police), of the State List however liberally one may construe them. Games of skill have been judicially held to be business activities protected under Article 19(1)(g). As regards competitions which involve substantial skill however, different considerations arise. They are business activities, the protection of which is guaranteed by Article 19(1)(g). It is pertinent to mention that in the said decision the Supreme Court of India also observed that power to regulate games of skill lies with the State Legislature under Entry 26, List II, i.e., Trade and commerce. If that be so, an activity which is not a res extra commercium cannot intrinsically give rise to any issue of Public order. There is no scope for invoking Entry 2 in the State List, either., The expression 'Public order' in the State List implies an activity which affects the public at large and therefore, individual instances that do not generate public disorder may not fit into the same. The Supreme Court of India observed: \There can be no doubt that for public order to be disturbed, there must in turn be public disorder. Mere contravention of law such as indulging in cheating or criminal breach of trust certainly affects law and order but before it can be said to affect public order, it must affect the community or the public at large.\ Added, the cases registered by the police are for the games that have eventually become offences after the amendment which is put in challenge and therefore, much cannot be derived from the factum of such registration. It is also relevant to quote the observations 37 (2021) SCC Online SC 530 at para 13. The distinction does not ignore the necessity for intimate connection between the Act and the public order sought to be maintained by the Act. The restriction made in the interest of public order must also have reasonable relation to the object sought to be achieved i.e., the public order. If the restriction has no proximate relationship to the achievement of public order, it cannot be said that the restriction is a reasonable restriction within the meaning of the said clause XIV., AS TO ENTRY 6 (Public health and sanitation) (a) Learned Advocate General and Mr. Sridhar Prabhu next contended that: the World Health Organization (WHO) is the United Nations Specialized Agency for health. Being an intergovernmental agency, it works in collaboration with its Member States and provides leadership on global health matters by shaping the health research agenda, setting norms and standards, articulating policy options, providing technical support to countries and monitoring and assessing health trends. India is a party signatory to the WHO w.e.f. 12 January 1948. Since 2014, WHO having conducted research and activities relating to the public health implications of the excessive use of internet, computers, smart phones and other similar electronic devices, has in the 11th edition of the International Classification of Diseases (ICD-11) of 2018 clinically recognized the same as a pernicious syndrome. The pattern of gaming behaviour is of such a nature and intensity that it results in marked distress or significant impairment in personal, family, social, educational or occupational functioning. The health concerns associated with gaming behaviour are not limited to gaming disorder but extend to other aspects of health such as insufficient physical activity, unhealthy diet, problems with eyesight or hearing, musculoskeletal problems, sleep deprivation, aggressive behaviour and depression and psychosocial functioning. They drew the attention of the Court to the relevant part of the WHO literature at Annexure-R2, Volume I of the Statement of Objections dated 23 November 2021 contending that our Constitution being an organic document, the term 'Public health and sanitation' in Entry 6 of the State List should be broadly interpreted to include online games of the kind., The above view ingeniously canvassed by the learned Advocate General for the respondents and Mr. Sridhar Prabhu for the Intervener is a bit difficult to agree with and reasons are not far to seek: that our Constitution as any other, is an organic document is true. However, that per se does not lend credence to the contention that the policy considerations of International Organizations like WHO functioning under UN aegis or recognition, should necessarily influence the interpretation to be placed on the constitutional provisions in general and the legislative Entries in the State List, in particular. Article 51 of the Constitution inter alia directs fostering respect for international law and treaty obligations. This direction essentially addresses the Parliament and the Central Government inasmuch as the power to legislate in respect of matters concerning International Conferences, Treaties and Agreements is exclusively vested in the Parliament vide Article 253 read with Entry 97 of the Union List. Entry 14 of this List confers on the Union Parliament exclusive power to make laws with respect to entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries. Also Entry 10 of that List provides for Foreign affairs; all matters which bring the Union into relation with any Foreign Country.
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Article 253 is intended to make it clear that the power to enter into treaties conferred on Parliament carries with it, as incidental thereto, a power to invade the State List to enable the Union to implement the treaty. Thus a law passed by Parliament to give effect to an international convention shall not be invalidated on the ground that it contains provisions relating to the State subjects. In view of all this, the meaning and scope of the entry in question cannot be widened, when the contours of law in this regard have already been earmarked in a catena of decisions of the Supreme Court of India., Petitioners argue that playing games of skill is a form of speech and expression guaranteed under Article 19(1)(a) and that it is one of the facets of personal liberty protected under Article 21; therefore, there cannot be unreasonable restriction on the same. They submit that any legislative restriction for being valid has to pass the muster of Article 19(2) of the Constitution, which enumerates specific grounds, and that there is a heavier onus resting on the shoulders of the State to justify a restriction that constitutes an absolute embargo. Learned Advocate General contends to the contrary, pointing out the likely ill‑effects of online gaming in general and its behavioural addiction potential for the younger generation. He submits that under our constitutional scheme, no rights of individuals are accorded in absolute terms and that individual interests must yield to the larger societal interest. According to him, the Amendment Act, having been enacted keeping this in mind, cannot be faltered in judicial review. He also submits that in matters like this the judicial organ of the State should show due deference to the decisions of the coordinate organ, namely the Legislature., In the Harvard Law Review, Volume IV, December 15, 1890, Samuel D. Warren (Attorney) and Louis D. Brandeis (later Judge of the Supreme Court of the United States) wrote prophetically: Similar to the expansion of the right to life was the growth of the legal conception of property. From corporeal property arose the incorporeal rights issuing out of it; and then there opened the wide realm of intangible property, in the products and process of the mind, as words of literature and art, goodwill, trade secrets, and trademarks. This development of the law was inevitable. The intense intellectual and emotional life, and the heightening of sensations which came with the advance of civilisation, made it clear to men that only a part of the pain, pleasure, and profit of life lay in physical things. Thoughts, emotions, and sensations demanded legal recognition, and the common law enabled the judges to afford the requisite protection without the interposition of the legislature. The freedoms guaranteed inter alia under Articles 19 and 21 have been broadening from precedent to precedent. The right to speech and expression has expanded to include even a right to vote. Similarly, the march of law from K.S. Puttaswamy, supra, has broadened the contours of the right to life and personal liberty exponentially. Several rights guaranteed in Part III of the Constitution are no longer treated as watertight compartments, since they have correlative content and each illuminates the penumbra of the other by interplay. Political, social and economic changes have entailed the recognition of new rights such as the right to privacy., The following observations in K.S. Puttaswamy, expounding on freedom and liberty, are worth reproducing: The notion that liberty only consists of freedom from restraint does not complete the universe of its discourse. Broader notions of liberty are cognizant of the fact that individuals must be enabled to pursue their capacities to the fullest degree. This approach to understanding the content of freedom construes the ability to lead a dignified existence as essential to the conception of liberty and freedom. If true freedom is to be achieved through the removal of conditions which cause social and economic deprivation, the role of the State is not confined to an absence of restraint. On the contrary, the State has a positive obligation to enhance individual capabilities. In the realisation of basic rights, the State is subject to positive duties to further the fulfilment of freedom., Eric Berne, M.D., an acclaimed Canadian psychiatrist (1910‑1970), in his book \Games People Play\ (Penguin, 1964), analyses games as an ongoing series of complementary ulterior transactions to a well‑defined, predictable outcome. Descriptively, it is a recurring set of transactions, often repetitious, superficially plausible, with a concealed motivation; or, more colloquially, a series of moves with a snare or gimmick. Games are clearly differentiated from procedures, rituals, and pastimes by two chief characteristics: their ulterior quality and payoff. \What is written on the blurb is even more instructive: 'We all play games. In the workplace, in the bedroom, even when we are not aware of it. Every personal encounter is a mental contest, an opportunity to assert our will.'\ Games involve the psychology of relationships and variable patterns of behaviour that reveal hidden feelings and emotions of individuals and their underlying motivations. Games, art and culture have a sort of psychological singularity. Games have artistic and recreational value. Whether online or offline, they are designed to entertain as well as to inform. Games have emotive content whose effects tend more toward the cognitive. The thin line between entertainment and information often becomes elusive. Games may not convey a discernible message, but even non‑cognitive forms of expression can be a means of promoting self‑development and therefore do not readily fall within the unprotected category of expression. The interactivity of online games does not cut their status as expression, but enhances the expressive impact of a medium. Playing games creates a mood as an abstract art, apart from causing a subtle shaping of thoughts which characterises all artistic expression. These provisions of our Constitution, having become expansive by the judicial process, do not deny protection to abstract painting, avant‑garde music and nonsensical poetry. Therefore, games of skill fall within the protective contours of Article 19(1)(a) and Article 21, of course subject to reasonable restriction by law., Judge Antonin Scalia of the Supreme Court of the United States famously remarked, 'If you had to pick one freedom that is the most essential to the functioning of a democracy, it has to be the freedom of speech.' In \And Others\ (41), the Supreme Court of India considered the question of the right to telecast sports events, inter alia referring to Article 10 of the European Convention on Human Rights which reads: \Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.\ Thereafter, the Court summarised the law on freedom of speech and expression under Article 19(1)(a) as restricted by Article 19(2): \The freedom of speech and expression includes the right to acquire information and to disseminate it. Freedom of speech and expression is necessary for self‑fulfilment. It is the best way to find the truest model of anything, since it is only through it that the widest possible range of ideas can circulate. Equally important is the role it plays in facilitating artistic and scholarly endeavours of all sorts.\ The Court dealt with the right of telecasting sports and observed: \In a team event such as cricket, football, hockey etc., there is both individual and collective expression. However, the right to freedom of speech and expression also includes the right to educate, to inform and to entertain and also the right to be educated, informed and entertained. The right to telecast a sporting event will therefore also include the right to educate and inform the present and prospective sportsmen interested in the particular game and also to inform and entertain the lovers of the game. Hence, when a telecaster desires to telecast a sporting event, it is incorrect to say that the free‑speech element is absent from his right.\, The enactment of Part III of our Constitution by the Constituent Assembly and its progressive interpretation by the Courts was influenced inter alia by American jurisprudence. The growth of legal thought that occurs on foreign soil influences others around the globe, which has become a small world due to the advancement of science and technology. The Supreme Court of India observed: \While examining the constitutionality of a law which is alleged to contravene Article 19(1)(a) of the Constitution, we cannot, no doubt, be solely guided by the decisions of the Supreme Court of the United States of America. But in order to understand the basic principles of freedom of speech and expression and the need for that freedom in a democratic country, we may take them into consideration.\ The above observations of Justice E. Venkataramiah justify looking to how American law of freedom of speech and expression has been shaped by the judicial process over the decades., In 1915, the United States Supreme Court in *Mutual of Ohio* considered the validity of an Ohio statute that required distributors to submit their films to a Board of Censors before public exhibition. The Court held that motion pictures were not a form of expression eligible for constitutional protection under the First Amendment. After thirty‑seven years, this view was overturned in *Joseph Burstyn, Inc. v. Wilson*, wherein it was observed that motion pictures do not fall outside the category of protected expression under the First and Fourteenth Amendments. Subsequent cases, such as *Interactive Digital* (244 F.3d 572), held that video games also constitute a form of expression presumptively entitled to constitutional protection and do not fall into any category of unprotected speech. The United States Supreme Court in *Brown v. Entertainment Merchants Association* considered the challenge to a California law that restricted the sale or rental of violent video games to minors. Justice Antonin Scalia reasoned that such a law does not comport with the First Amendment because games, like books, plays and movies, qualify for protection, even though they communicate ideas through media‑specific devices. The Court observed that the basic principles of freedom of speech do not vary with a new and different communication medium., The views of Professor Paul E. Salamanca of the University of Kentucky College of Law, published in the *Georgia Law Review*, Vol. 40, No. 1 (2005) pp. 153‑206, are instructive: \Courts have properly concluded that the First Amendment protects video games as a form of expression. These games possess all the characteristics of an art form. First, like other art, they are representational. They may look like universes full of gothic architecture, labyrinthine tunnels, and grotesque characters, but in fact they are electronic representations of such things, much like paintings, movies, or TV shows. Second, video games often have aesthetic value. The architecture depicted in a video game can be magnificent, squalid, or both. Indeed, many schools now teach the art and science of creating interactive video games. Third, these games often tie music and narration to the player's movement through the various levels, and these features can be every bit as evocative as the soundtrack of a film or broadcast. Finally, video games often build upon powerful, elemental themes, just like fairy tales or epic poems.\, Former Associate Justice of the Supreme Court of the United States, Anthony Kennedy, observed in *United States v. United States*, 48 U.S. 1: \When a student first encounters our free‑speech jurisprudence, he or she might think it is influenced by the philosophy that one idea is as good as any other, and that in art and literature, objective standards of style, taste, decorum, beauty and aesthetics are deemed by the Constitution to be inappropriate, indeed unattainable. Quite the opposite is true. The Constitution no more enforces a relativistic philosophy or moral nihilism than it does any other point of view. The Constitution exists precisely so that opinions and judgments, including aesthetic and moral judgments about art and literature, can be formed, tested and expressed. What the Constitution says is that these judgments are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority. Technology expands the capacity to choose; and it denies the potential of this revolution if we assume the Government is best positioned to make these choices for us.\ The Supreme Court of India in *Shreya Singhal v. Union of India* referred to the \marketplace of ideas\ concept that has permeated American law, echoing Justice Holmes' dissent in *Abrams v. United States*, 250 U.S. 616 (1919)., Robert H. Bork, Judge of the United States Court of Appeals for the District of Columbia Circuit, in his article \Neutral Principles and Some First Amendment Problems\ (Indiana Law Journal, Vol. 47, Issue 1, 1971), writes: \An individual may develop his faculties or derive pleasure from trading on the stock market, following his profession as a river‑port pilot, working as a bartender, engaging in sexual activity, playing tennis, rigging prices or in any of thousands of other endeavours.\ Given the possibilities of expression in any medium, the guarantee enacted in Article 19(1)(a) and (g) and Article 21 must be broadly construed to protect all forms of activities that further the self‑realisation of value. This premise is implicit in these provisions. The Court interpreting the fundamental guarantees has to identify zones in which free people could experiment and develop their personalities without causing excessive, immediate or discernible harm to others. Online games do not have any such demonstrable effect., Justice Louis Brandeis famously said in *Whitney v. California*: \Those who won our independence believed that the final end of the State was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile. They recognised the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies.\, The vehement contention of the learned Advocate General appearing for the State is that the Amendment Act has been brought in to curb the menace of online gaming, which allegedly has deleterious effects on societal interest, and must be examined on the touchstone of Articles 19 and 21. The freedoms enumerated in these articles are basic rights recognised as natural rights inherent in the status of any individual. However, none of these rights is absolute; although they are inalienable, they are liable to reasonable restrictions imposed by law. The argument of deleterious effect is not supported by empirical data in the record. Expert opinions include: (i) The Discussion Paper titled \The WHO Forum on Alcohol, Drugs and Addictive Behaviours\ (26‑28 June 2017) states that problem gambling is a negative impact of post‑mid‑1980s gambling expansion, and that risk factors such as high deprivation, lack of education and unemployment contribute to problem gambling. (ii) The National Centre for Responsible Gaming, in its white paper \Internet Gambling: An Emerging Field of Research\ (by Christine Reilly and Nathan Smith), concludes that both the online gaming industry and research on health risks are in their infancy, and it is premature to assume internet gambling will have deleterious health effects. (iii) Professor Malcolm K. Sparrow of the John F. Kennedy School of Government, Harvard University, in his study \Can Internet Gambling Be\ (2009), notes that recent studies indicate online gambling does not inherently encourage excessive gambling and that regulators can design sufficient protections. (iv) Mr. Shridhar Prabhu, appearing for the Intervener, draws attention to the European Court of Justice decision in *Carmen Holstein* (C‑46/08, 8 September 2010), which concerned games of chance offered over the internet and highlighted risks of addiction, but it did not address games of skill, which are the subject of the present writ petitions., As internet gaming continues to evolve exponentially, participation increases, particularly among young people who are more familiar with new technology. It is likely that problems associated with such games may surface in due course. Regulation of online gaming based upon study and research will have to evolve to further the understanding of the impact of this mode of access, based on empirical evidence. Theoretical models for betting, gaming and problem gambling have been developed on the basis of traditional gaming and largely do not consider the recent emergence of internet modes. It is important to revisit these conceptual models to verify whether they account for pathological gambling among internet users and whether new variables or interactions should be included to explain problems associated with online gaming. This is necessary to structure a more comprehensive and scientific understanding of how people develop gambling problems., It is relevant to state that before imposing a statutory embargo on online gaming, the State had not constituted any Expert Committee to undertake a scientific study and empirical research on the alleged ill effects of online games specific to the socio‑economic and cultural conditions in the State. The Constitution does not prescribe such a study or research as a sine qua non for the exercise of plenary legislative power. However, when the policy content of a statute is defended on the ground of its intrinsic merits and technological advancement, it is ideal for the State to place on record the necessary material to substantiate its stand, consistent with *Chintaman Rao* (supra). When legislative competence and the reasonableness of the law are challenged, the contention that even the Leader of the Opposition supported the measure is not significant., The Supreme Court of India, while considering *Chamrabaugwala‑II* (supra), opined that it is difficult to accept the contention that activities encouraging reckless propensity for easy gain by lot or chance, which lead to loss of hard‑earned money of the undiscerning common man and thereby lower his standard of living, could be raised to the status of trade, commerce or intercourse and be made the subject matter of a fundamental right guaranteed by Article 19(1)(g). It reproduced the observation of the United States constitutional right to gambling and noted that, in view of settled law, gambling – i.e., games of chance – do not enjoy any constitutional protection since they are mala in se. The legislature may absolutely prohibit them as it does with trades in dangerous goods or trafficking in women. However, games of skill, by their very nature, stand on a different footing., Learned Advocate General appearing for the State contends that games of chance are *res extra commercium*, while games of skill fall within the field of 'Trade and Commerce' under Entry 26 of the State List. The fundamental right inter alia of trade and business is guaranteed under Article 19(1)(g) and therefore is subject to reasonable restrictions imposed under Article 19(6). A reasonable restriction may also include an absolute embargo. Regard being had to the enormous adverse implications of online gaming on society in general and the younger generation in particular, the Amendment Act criminalises cyber games. In support of his contention, he relies upon *Sivani* (supra). He draws the Court's attention to a spate of suicides in the State, a plethora of criminal cases registered by the police and debates in the Legislative Assembly that culminated in the Amendment Act. He contends that the policy of proscribing cyber games is a matter left to legislative wisdom and the writ Court should loathe to interfere., Learned advocates appearing for the petitioners do not dispute that the State has power to regulate business activities under Article 19(6). They contend that, in view of *Chintaman Rao* and *Mohd. Farooq* (supra), the onus lies on the State to demonstrate the reasonableness of restrictions and that where the restriction amounts to an absolute embargo, this onus is onerous, as held in *Narendra Kumar v. Union of India* (54). They draw the Court's attention to the observations of the Madras High Court in *Jungle E‑Games* (supra), to the effect that the State has not adopted the 'least intrusive approach' test and, therefore, the Amendment Act should be void. They also invoke the doctrine of proportionality for the invalidation of the impugned legislative measure.
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The online gaming activities played with stake or not do not fall within the ambit of Entry 34 of the State List, that is, 'Betting and gambling', if they predominantly involve skill, judgment or knowledge. They partake the character of business activities and therefore, they have protection under Article 19(1)(g). Apparently, the games of skill played online or offline with or without stakes are susceptible to reasonable restrictions under Article 19(6). The Amendment Act brings in a blanket prohibition with regard to playing games of skill. The version and counter version as to the nature and reasonableness of the restrictions need to be examined in the light of norms laid down by the Supreme Court of India., In a challenge laid to the validity of any legislation on the ground of violation of fundamental rights inter alia guaranteed under Article 19(1), on a prima facie case of such violation being made out, the onus would shift to the State to demonstrate that the legislation in question comes within the permissible limits of the most relevant out of clauses (2) to (6). When exercise of a fundamental right is absolutely prohibited, the burden of proving that such a total prohibition on the exercise of the right alone would ensure the maintenance of general public interest lies heavily upon the State. While adjudicating a case of infringement of fundamental rights, what is determinative is not the intent of the legislature but the effect of the legislation. Legislative action that is too disproportionate or excessive may suffer invalidation on the ground of manifest arbitrariness under Article 14 as discussed infra., Judge Aharon Barak of the Supreme Court of Israel, in his book THEIR LIMITATIONS, succinctly puts the doctrine of proportionality: it requires that a rights‑limiting measure should be pursuing a proper purpose, through means that are suitable and necessary for achieving that purpose and that there is a proper balance between the importance of achieving that purpose and the harm caused by limiting the right., In examining the reasonableness of restrictions, both substantive and procedural aspects enter the fray. The Court should consider not only factors such as the duration and extent of the restrictions but also the circumstances and the manner in which their imposition has been authorized. This apart, the nature of the business sought to be restricted is also relevant. What the Supreme Court of India said in CHINTAMAN RAO is worth advertencing to: the phrase reasonable restriction connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word reasonable implies intelligent care and deliberation, that is, the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Article 19(1)(g) and the social control permitted by clause (6) of Article 19, it must be held wanting in that quality., While striking down a complete prohibition of cryptocurrency by the Reserve Bank of India, the Supreme Court of India observed: 'The parameters laid down in Md. Faruk are unimpeachable. While testing the validity of a law imposing a restriction on the carrying on of a business or a profession, the Court must, as formulated in Md. Faruk, attempt an evaluation of (i) its direct and immediate impact upon the fundamental rights of the citizens affected thereby; (ii) the larger public interest sought to be ensured in the light of the object sought to be achieved; (iii) the necessity to restrict the citizens' freedom; (iv) the inherent pernicious nature of the act prohibited or its capacity or tendency to be harmful to the general public; and (v) the possibility of achieving the same object by imposing a less drastic restraint.' Nevertheless, the measure taken by the RBI should pass the test of proportionality, since the impugned circular has almost wiped the VC exchanges out of the industrial map of the country, thereby infringing Article 19(1)(g)., The learned counsel for the petitioners relies upon the four‑pronged test summed up in the opinion of the majority in Modern Dental College and Research Centre v. State of Madhya Pradesh. The four tests are: (i) that the measure is designated for a proper purpose; (ii) that the measures are rationally connected to the fulfillment of the purpose; (iii) that there are no alternative less invasive measures; and (iv) that there is a proper relation between the importance of achieving the aim and the importance of limiting the right. The Court in that case held that a mere ritualistic incantation of money laundering or black money does not satisfy the first test and that alternative methods should have been explored., The Supreme Court of India in SHAYARA BANO observed that a Constitution Bench in Indian Express Newspapers v. Union of India, (1985) 1 SCC 641, stated that it was settled law that subordinate legislation can be challenged on any of the grounds available for challenge against plenary legislation. Consequently, there is no rational distinction between the two types of legislation when it comes to a challenge under Article 14. The test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments would apply to invalidate both legislation and subordinate legislation under Article 14. Manifest arbitrariness must be something done by the legislature capriciously, irrationally and/or without an adequate determining principle. When something is excessive and disproportionate, such legislation would be manifestly arbitrary., The Amendment Act puts games of skill and games of chance on par, although they are poles asunder, in the light of obtaining jurisprudence. Games of skill, in addition to being a type of expression, are entitled to protection under Article 19(1)(g) by virtue of their recognition as business. There are competing interests of the State and the individual, which need to be balanced by employing known principles such as the doctrine of proportionality, the least restrictive test and the like. A line has to be drawn to mark the boundary between the appropriate field of individual liberty and the State action for the larger good, ensuring the least sacrifice from the competing claimants. As already mentioned, the Amendment Act puts an absolute embargo on games of skill involving money or stakes. The learned Advocate General contended that the State was not in a position to apply the least restrictive test and that, because the prohibition is the objective of the Amendment Act, there is no scope for invoking the said test at all. This amounts to throwing the baby out with the bath water., In a progressive society like ours, imposing an absolute embargo, by any yardstick, appears to be an excessive restriction. In such cases, a heavy burden rests on the State to justify such an extreme measure, as rightly contended by the petitioners. No material has been placed on record to demonstrate that the State, whilst enacting such an extreme measure, considered the feasibility of regulating wagering on games of skill. If the objective is to curb the menace of gambling, the State should prohibit activities that amount to gambling as such and not the games of skill which are distinct in terms of content and produce. The State action suffers from the vice of paternalism since there is excessive restriction on the citizens' freedom of contract. However, the ground of legislative populism does not avail against the plenary power of legislation. It has long been settled that the motive of the legislature in passing a legislation is beyond the scrutiny of courts, as held by a five‑judge bench of the Supreme Court of India., A mere likelihood or propensity of misuse of online gaming platforms, without anything more, does not constitute a legal justification for the banning of commercial activities. Article 300A has been expansively construed to include intangible property such as intellectual property, which is a product of original thought and skill, i.e., creation of the mind, and is essentially used in Karnataka. An activity predominantly involving skill cannot be readily banned at a stroke of the legislative pen. In any organized society, knowledge, wisdom, talent and skill are invaluable tools for wealth generation. They are the unseen ingredients of economic rights such as rights to profession and property. Our Constitution, modelled on the principle of limited government, normally frowns upon measures which stultify and negate these invaluables, whether acquired by man or gifted by his Maker. On the contrary, the State, in the larger public interest, has to create an atmosphere which nurtures them., The press enjoys two of the fundamental rights, namely the freedom of speech and expression guaranteed under Article 19(1)(a) and the freedom to engage in any profession, occupation, trade, industry or business guaranteed under Article 19(1)(g) of the Constitution, the first because it is concerned with the field of expression and communication and the second because communication has become an occupation or profession. The games of skill, as reasoned above, involve elements of expression and therefore enjoy protectable status under Article 19(1)(a); it has long been settled that these games, apparently having business characteristics, are protected under Article 19(1)(g). Therefore the observations in Indian Express equally apply to the case of the petitioners. However, the Amendment Act does not critically adjust the boundaries of the existing protected category of games of skill with the unprotected acts of gambling. Instead, the State has created a wholly new category of medium‑based regulation when a change of medium per se does not alter the true nature and content of the games. The permissible limits of restriction recognized by Chamarbaugwala are thus trampled by proscribing online games in their entirety., The Tamil Nadu Gaming and Police Laws (Amendment) Act 2021, which was put in challenge before the Madras High Court, and the Amendment Act impugned herein are substantially similar in their text, context, object and effect. The Hon'ble Madras High Court in JUNGLEE GAMES observed that the amended statute prohibited all forms of games conducted in cyberspace, irrespective of whether the game involved mere skill, if such game is played for a wager, bet, money or other stake. The main feature of the Amending Act was to enlarge the inclusive definition of the word gaming by introducing Section 3‑A to prohibit wagering or betting in cyberspace and by replacing the substance of Section 11, which originally exempted games of mere skill, with a provision that includes games of mere skill within the fold of offences if such games are played for a wager, bet, money or other stake., The learned Advocate General appearing for the State contended that the provisions of an organic Constitution like ours have to be construed keeping in view contemporary socio‑economic developments and the new challenges associated with them. There has been a paradigm shift in the whole lot of activities in society owing to advancement of science and technology. New implications and difficulties are cropping up, justifying innovative ventures by the State to effectively manage them. A greater leverage needs to be conceded to the State in devising appropriate measures for curbing the menace of online gaming. He passionately submitted that what was true of the matters decided in the bygone decades, i.e., when CHAMARBAUGWALA was decided, needs to be examined afresh. In support of this, he cited the decision in SIVANI, contending that the absolute embargo on video games has been upheld by a Public Interest Litigation in Karnataka, in which a direction was sought for banning all forms of online gambling and betting, disposed off on 26.10.2021 by this Court, and that the Amendment Act has been enacted keeping the same in view., We appreciate the above submissions of the learned Advocate General. However, they do not much come to the rescue of the respondents. It is true that the Constitution is intended to endure for ages to come and consequently to be adapted to the various crises of human affairs. It is unwise to insist that what the provisions of the Constitution meant to the vision of its makers must mean to the vision of our time. They should be interpreted to meet and cover changing conditions of social and economic life. At the same time, the meaning of the Constitution does not change with every ebb and flow of economic events. A Constitution is not a storehouse of fossilised principles; it is a living law of the people and accordingly its provisions need to be construed by all the organs of the State., The submission of the learned Advocate General overlooks one important factor: CHARMARBAUGWALA was decided decades ago, but that jurisprudence has been validated time and again by the Supreme Court of India in K.R. Lakshmanan (1996) and other subsequent cases. Thus it is not that what was decided in CHARMARBAUGWALA is being revisited for the first time now. In the recent past, several High Courts in the country have followed the same after critical examination, viz., VARUN GUMBER (P&H‑2017); these cases went to the Supreme Court of India and were affirmed, the latest being AVINASH MEHROTRA, decided on 30.7.2021. All this is already discussed in earlier paragraphs. The PIL case does not in any way come to the rescue of the respondents since the prayer therein is related to banning all online gambling as such. Apparently, the case of the petitioners is not one of gambling; their business does not involve any act which is determined by the wheel of fortune., The learned advocates appearing for the petitioners are justified in complaining that the Amendment Act is violative of Article 14 of the Constitution inasmuch as it does not recognise the long‑standing jurisprudential difference between a 'game of skill' and a 'game of chance' which animates the scheme of the Principal Act, even post‑amendment. Consequently, in the eye of the Amendment Act, persons who play games of chance and persons who play games of skill (in terms of the predominance test) are unjustifiably made to constitute one homogeneous class. Our Constitution does not permit things which are different in fact or opinion to be treated in law as though they were the same. The doctrine of equality enshrined in Article 14 is violated not only when equals are treated unequally but also when unequals are treated equally, disregarding their difference, as observed by the Supreme Court of India: 'The basic principle which therefore informs both Articles 14 and 16 is equality and inhibition against discrimination. Equality is a dynamic concept with many aspects and dimensions and it cannot be cribbed, caged and confined within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other belongs to the whim and caprice of an absolute monarch.', The amended definition of 'gaming' excludes, in so many words, 'a lottery or wagering or betting on horserace run on any race course' in a given circumstance. The Supreme Court of India in K.R. Lakshmanan held that horseracing is a 'game of mere skill' and therefore it is 'neither gaming nor gambling'. If the legislative policy is to protect games of skill from being treated as proscribed, the Amendment Act, being unjustifiably selective, suffers from a grave constitutional infirmity. It offends the clause of equal protection of the laws enacted in Article 14, since protection is unreasonably sectarian. The equal protection clause would be diluted into a mild constitutional injunction that the State shall treat as equal in law only the horse‑racers who are equal in fact with other players of games of skill. For saving such blatant discrimination, the respondents have failed to establish the reasonable basis on which such a classification is founded and the rational nexus identifiable between the differentia and the object sought to be achieved., The learned Advocate General pressed into service the decision in SHREYA SINGHAL to justify classification between 'actual games' and 'virtual games' and that the Amendment Act, which would focus on the latter, would not suffer any infirmity on the touchstone of the equality clause. He contends that there is an intelligible differentia between online media and offline media as recognised by the Supreme Court of India and therefore the legislature, in its wisdom, has chosen to proscribe online games since they are injurious to public interest. True it is that the Supreme Court treated online media as different from offline media, but such differentia was in the context of the distinction between dissemination of information via traditional media and via online media. While there are multiple layers of prior editorial control in traditional media, such layers may not exist in the case of publication of information through online media, as information in the latter 'travels like lightning'. It is not the case that the matters before us involve unregulated information travelling at the speed of lightning., The expression 'pure game of skill' as employed in legislation, i.e., Section 176 of the Principal Act, has been judicially construed to mean 'mere skill' and that games mainly and predominantly involving skill fall into this class. The expanded meaning of 'gaming' under Section 2(7) as amended paints games of skill and games of chance with the same brush. However, Section 176 of the Principal Act, even post‑amendment, continues to maintain the distinction between these two classes of games. The original heading of this section, 'Saving of games of skill', now also continues. In English parliamentary practice, headings and marginal notes are not voted or passed by Parliament, but are inserted after the Bill has become law; in India, headings are part of the Bill and are voted in the legislature. They provide the context for the substantive part of the section and therefore cannot be ignored. Due significance has to be attached to the heading of a section in a statute. The substantive text of Section 176 makes the penal provisions enacted in Sections 79 and 80 inapplicable to 'any pure game of skill, i.e., a game predominantly involving skill.' The Amendment Act deletes the term 'and to wagering by person taking part in such games of skill' from the text of this section. Thus the amended definition of 'gaming' under Section 2(7), to the extent it does not admit the difference between skill games and chance games, is in direct contradiction to the amended Section 176 which intends to maintain such a difference. The very definition of 'gaming' as amended suffers from the vice of over‑inclusiveness, bruising the legislative intent enacted in Section 176 to protect a class of citizens who play games of skill., The Supreme Court of India broke new ground by recognising 'manifest arbitrariness' for the invalidation of plenary legislations. It observed that subordinate legislation can be challenged on any of the grounds available for challenge against plenary legislation, and there is no rational distinction between the two types of legislation when it comes to a challenge under Article 14. Manifest arbitrariness must be something done by the legislature capriciously, irrationally and/or without an adequate determining principle. When legislation is excessive and disproportionate, it is manifestly arbitrary and therefore violative of Article 14., The rule of law is recognised by the Supreme Court of India as a basic feature of our Constitution. It is an imperative that laws which regulate the conduct of persons or entities must give a fair notion of what is forbidden or required. A statute which 'leaves open the widest conceivable inquiry, the scope of which no one can foresee and the result of which no one can foreshadow or adequately guard against' offends this postulate of the rule of law and is liable to be voided on the ground of manifest arbitrariness. When a statute is obscure or admits plural meanings with little guidance for a common citizen, it operates as a statute of violence to sensible citizens since they cannot live securely under the rule of law. The Amendment Act suffers from this infirmity insofar as Section 2(7) encompasses all games regardless of skill involved, rendering the charging provisions in Section 176 read with Sections 79 and 80 of the Principal Act so vague that a person of ordinary intelligence cannot guess its true meaning, and therefore it is liable to be voided., The Madras High Court observed: 'It is true that, broadly speaking, games and sporting activities in the physical form cannot be equated with games conducted in the virtual mode or in cyberspace. However, when it comes to card games or board games such as chess or scrabble, there is no distinction between the skill involved in the physical form of the activity or in the virtual form. It is true that Arnold Palmer or Severiano Ballesteros may never have mastered how golf is played on the computer or Messi or Ronaldo may be outplayed by a team of infants in a virtual game of football, but Viswanathan Anand or Omar Sharif would not be so disadvantaged when playing their chosen games of skill on the virtual mode. Such distinction is completely lost in the Amending Act as the original scheme in the Act of 1930 of confining gaming to games of chance has been turned upside down and all games are outlawed if played for a stake or for any prize.', The vehement contention of the learned Advocate General that whether a game predominantly involves skill or not is a question of fact and therefore, without there being a criminal case in this regard, the challenge to the legislation is premature, cannot be agreed to. In our constitutional jurisprudence, for laying a challenge to legislation, registration of a crime thereunder is not a sine qua non. Criminal cases have already been registered by the police and a coordinate bench of this Court in W.P. No.19287/2021 has granted a stay of all further proceedings. To deny the petitioners on this ground is tantamount to a physician turning away a potential patient stating that the gangrene is yet to develop. Anticipatory relief against legislative action is not unfamiliar to constitutional adjudication; an argument to the contrary could risk the liberty of citizens., The contention of the learned Advocate General that the fundamental rights under Article 19 do not avail to non‑citizens and therefore the petitions are misconceived cannot be countenanced, as there are several citizens before this Court who have laid a challenge to the legislations. Moreover, the Supreme Court of India has disagreed with such a contention, observing that in matters of fundamental freedoms guaranteed by Article 19, the rights of a shareholder and the company which the shareholders have formed are co‑extensive and denial of one of the fundamental freedoms would be denial to the other. It is time to put an end to this controversy, but in the present state of law we are of the opinion that the petitions should not be thrown out at the threshold.
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We reach this conclusion for the additional reasons that apart from the complaint of denial of fundamental right to carry on trade or business, numerous other contentions have been raised which the High Court of Karnataka had to examine in a petition under Article 226. There is also a grievance of denial of equality before law as guaranteed by Article 14. Accordingly we overrule the preliminary objection and proceed to examine the contentions on merits. In the above circumstances, these writ petitions succeed., The provisions of Sections 2, 3, 6, 8 and 9 of the Karnataka Police (Amendment) Act 2021, that is Karnataka Act No. 28 of 2021, are declared to be ultra vires the Constitution of India in their entirety and accordingly are struck down. The consequences of striking down the subject provisions of the Karnataka Police (Amendment) Act 2021, that is Karnataka Act No. 28 of 2021, shall follow. However, nothing in this judgment shall be construed to prevent appropriate legislation being brought about concerning the subject, that is betting and gambling, in accordance with the provisions of the Constitution. A writ of mandamus is issued restraining the respondents from interfering with the online gaming business and allied activities of the petitioners. No order as to costs.
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W.P.(C) 5099/2023 and CM APPL. 19920/2023, 19921/2023 Through: Mr. Nidhesh Gupta, Senior Advocate with Mr. Kaustubh Shakkarwar, Advocates (M-9764143399) versus Through: Mrs. Avnish Ahlawat, Mr. Nitesh Kumar Singh, Mrs. Lavanya Kaushik and Mrs. Aliza Alam, Advocates. Mr. Neeraj Shekhar, Mr. Ashutosh Thakur, Dr. Sumit Kumars, Advocates for Respondent 2 (M-9312210391). Mr. Ripudaman Bhardwaj, CGSC with Mr. Sahaj Garg, GP for Respondent 3., This hearing was conducted in hybrid mode. The Civil Miscellaneous Application 19921/2023 (for exemption) was allowed, subject to all just exceptions. The application is disposed of., The present petition has been filed by the petitioners seeking implementation of the order of the Hon'ble Chief Justice dated 24 August 2018 and 3 September 2019 and payment of arrears to the petitioners., The petition has been filed by eleven petitioners who were attached as Law Researchers to different Hon'ble Judges of the Supreme Court of India. It is their case that, vide order dated 18 September 2017, the Hon'ble Chief Justice initially enhanced the monthly remuneration of Law Researchers from Rs 25,000 to Rs 35,000. On 24 August 2018, the remuneration was again increased to Rs 50,000. The amount was finally increased to Rs 65,000 vide order dated 3 September 2019., The grievance of the Law Researchers before the Supreme Court of India is that they were functioning as Law Researchers during the relevant periods and the arrears have not been paid to them. Through Right to Information applications, it has been revealed that financial sanction for payment of arrears has not been issued by the Government of National Capital Territory of Delhi. Accordingly, the present writ petition has been filed seeking release of arrears in terms of the remuneration fixed by the Delhi High Court to the petitioners and to other Law Researchers., Issue notice., Counsel for Respondent No.1 to take instructions in the matter and place on record the reasons as to why sanction has not been issued in respect to the arrears liable to be paid to Law Researchers who were discharging their duties at the relevant point of time., A status report or affidavit to be filed by 15 May 2023 with advance copy to the other side.
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IDIA students from diverse backgrounds soar to new heights in CLAT 2020 Press Release India (6 October 2020). IDIA Charitable Trust (IDIA) is ready to welcome its new batch of Scholars including Jai Singh Rathor, who has performed brilliantly and obtained All India Rank 3 in Common Law Admission Test (CLAT) 2020. Belonging to a small place in Patna district, Jai overcame many issues including financial struggles to emerge as one of the toppers. His father runs a small grocery shop and his mother is a homemaker., Anand Kumar who got All India Rank 5 hails from a small village called Masaurhi in Patna. He used to travel by train every day to attend classes. His father is retired after his service in the army and receives a small pension. He is the only breadwinner of the family. His mother is a homemaker. Anand also has two sisters who are currently studying in school., Another IDIA Scholar, Yashwant Kumar, has also made his family and IDIA proud by getting All India Rank 48 in CLAT 2020. Yashwant hails from a village called Masaurhi, in Patna district, Bihar. His father, who is a mechanic and manufactures some machine parts, is the only earning member of the family., These students have fought many odds and crossed numerous hurdles to crack CLAT. IDIA is a nationwide movement that selects and trains students from marginalized and underprivileged backgrounds to crack CLAT and other law entrance examinations. Once selected to top law colleges, IDIA gives them a holistic scholarship that includes financial assistance, training, mentorship etc. The aim is to create community leaders and change makers who are CHAMPS (Creative, Holistic, Altruistic, Maverick/Moral, Problem Solvers). It is hoped that this will help empower communities by creating capacity from within., Many of our other IDIA trainees have also performed well and around twelve are expected to get a seat at some of the top National Law Universities. These include Soumya who got All India Persons with Disabilities Rank 20. Soumya belongs to Penugonda village in Telangana. Her parents are farmers and she faced a lot of hurdles in her preparation due to her visual impairment and the economic challenges faced by her. Her grit and determination have prevailed as she cracked CLAT., IDIA is proud of its student team members across law colleges in India who worked tirelessly to train these students for the law entrance examinations. We are also thankful to our training partners that include some of the coaching institutes, trainers, and centers across India who helped us in training some of these students., We now need your help to sponsor the education of these students. They have shown their mettle and money should not stand in their way of pursuing their education. If you want to contribute towards their education, please write to info@idialaw.org., About IDIA Charitable Trust. IDIA is a pan‑India movement to train underprivileged students and help transform them into leading lawyers and community advocates. IDIA is premised on the notion that access to premier legal education empowers marginalized communities and helps them help themselves. IDIA selects and trains students from underprivileged backgrounds (IDIA trainees) to crack top law entrance examinations in India. Once they are admitted to top law colleges, it provides a scholarship to these students (IDIA scholars) that comprises financial support, training, and mentorship among other things.
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Reserved on 30-08-2022, Pronounced on 12-10-2022. Kumar Vishwas Petitioner v. State of Punjab and another Respondents. Present: Mr. Randeep Rai, Senior Advocate and Mr. Chetan Mittal, Senior Advocate with Mr. Mayank Aggarwal, Advocate; Ms. Rubina Virmani, Advocate for the petitioner; Mr. Puneet Bali, Senior Advocate with Mr. Prashant Manchanda, Additional Advocate General, Punjab; Mr. Ferry Sofat, Additional Advocate General, Punjab; Mr. H.S. Sitta, Deputy Advocate General, Punjab; Mr. Vaibhav, Advocate for the State of Punjab; Mr. Surjeet Bhadu, Advocate for the complainant/respondent No. 2., FIR No. 25 dated 12-04-2022, Police Station Sadar, Rupnagar, District Rupnagar. Sections 153, 153A, 505, 505(2), 116, 143, 147, 323, 341, 120B of the Indian Penal Code, 1860 and Section 125 of the Representation of the People Act, 1951., The petitioner, aggrieved by being arraigned as an accused in the above FIR, has approached the Punjab and Haryana High Court under Section 482 of the Code of Criminal Procedure, 1973, invoking its inherent jurisdiction to quash the FIR. The petitioner seeks to disrupt the criminal proceedings at the inception stage to preserve his fundamental right of free speech, to prevent the abuse of process of law, and to secure the ends of justice, on the grounds that even if all the allegations on their face value are taken to be true, they would not constitute a violation of any penal offence incorporated against him., The trouble sprouted on 16 February 2022, when, as per the complaint, the petitioner during the Vidhan Sabha elections gave a video interview, leveling imputations about the involvement of Mr. Arvind Kejriwal, Chief Minister of Delhi, with certain nefarious and anti‑social elements. The complainant alleged that to provoke and abet violence against the workers and supporters of the Aam Aadmi Party, Kumar Vishwas deliberately stated in his interview: “One day, he told me not to worry because either he would become Chief Minister of an independent State. On this, I (Kumar Vishwas) confronted him by saying this is separatism, the referendum of 2020 is coming, and the world is funding it, from ISI to the separatist groups. He said, so what, then he would become Prime Minister of an Independent country. Look so much separatism is in this man's thoughts to form Government and acquire power at whatever cost.”, The gist of the allegations in the complaint is that on 16 and 17 February 2022, the petitioner, Kumar Vishwas, to satiate personal enmity and hatred, gave a proactive video interview to ANI and other news channels, wherein he made baseless imputations regarding the involvement of Aam Aadmi Party’s national convener Mr. Arvind Kejriwal with certain nefarious and anti‑social elements. The interview was widely circulated in the media and retweeted and shared on social media through meticulous planning to promote hatred, animosity, and hostility in the State of Punjab against members of the Aam Aadmi Party. The timing and nature of the statements were purposefully aimed to spread a communal narrative, create unrest and instability across Punjab during the elections to the State Legislative Assembly, and to subject Aam Aadmi Party supporters to hatred, hostility, distrust, and vengeful violence, thereby rupturing the peaceful religious fabric of Punjab., The complaint reads that on 12 April 2022 at about 12 P.M. near T‑Point Panjola, Purkhali Road, when the complainant was returning after redressing public grievances with fellow party workers Shiv Kumar Lalpura, Gaurav Kapoor and Rana Panjola, a group of ten to twelve unknown persons restrained and waylaid them unexpectedly, attempted to assault and manhandle them by pushing them into a corner. The assailants shouted slogans such as “Kejriwal Mann ki Sarkar Hai Hai, Khalistani Sarkar Hai Hai, Punjab Khalistan Nahi Banega” and called the complainant “Khalistani, gaddar”. The complainant managed to escape to safety and alleges a pre‑planned conspiracy by the unknown persons., The complainant handed over a written complaint to the Station House Officer, Police Station Sadar, Rupnagar, Punjab, mentioning the aforesaid incident. Based on these allegations, on 12 April 2022 the SHO registered the FIR, the investigation commenced, and the complainant also submitted video clippings of the petitioner’s interview. From 15 April onwards, the investigation was taken over by a Special Investigation Team, headed by the Superintendent of Police (Investigation) with one Deputy Superintendent of Police and the SHO as its members. The investigation revealed that the hooligans had informed the complainant that they had watched the interview of Kumar Vishwas and subsequently that of Alka Lamba, who had also reiterated the statements made in the interview. The SIT also examined assaults at Chamkaur Sahib on 18 February and other places, which were stated to be its outcome., On 19 April 2022, the investigator issued notices against the petitioner under Section 41-A of the Code of Criminal Procedure. Aggrieved by the registration of the FIR and further directions to join the investigation, the petitioner approached the Punjab and Haryana High Court for quashing the FIR and, during the pendency of the petition, a stay of further proceedings. By order dated 2 May 2022, the Punjab and Haryana High Court stayed further proceedings against the petitioner, including his arrest., In paragraph 3 of the quashing petition, supported by the petitioner’s affidavit, it is stated that the petitioner was one of the founder members of the Aam Aadmi Party. He came into contact with Shri Arvind Kejriwal in 2005 during the India Against Corruption movement led by Shri Anna Hazare. Recently, in an interview the petitioner recounted a conversation with Shri Arvind Kejriwal regarding political aspirations, and thereafter a series of statements and counter‑statements were reported in the media. The crux of the conversation, which took place during the 2017 Punjab assembly elections, allegedly involved the petitioner objecting to Shri Arvind Kejriwal seeking support from Punjab‑based fringe and separatist elements to win the elections., Mr. R.S. Rai, Senior Advocate representing the petitioner, stated that the FIR is politically motivated, misusing the State’s machinery to exact vengeance for the petitioner’s defiance of the party’s ways, constituting a gross abuse of power and an act of vendetta due to hostile relations between the petitioner and the Aam Aadmi Party, which is now in power in Punjab, of which he was a founding member., Mr. Puneet Bali, Senior Advocate, appearing for the State of Punjab, argued that the investigation was at its initial stage when the Punjab and Haryana High Court stayed further proceedings; consequently, crucial aspects of the investigation remain pending, and quashing the FIR would prevent the police from fulfilling its statutory obligation to investigate a serious crime. He further contended that, as per daily diary reports, similar incidents occurred on 18 February 2022 in the Chamkaur Sahib Vidhan Sabha constituency as a repercussion of the interview. The State’s position is that the complaint discloses the commission of a prima facie offence and does not fall within the category of exceptional cases where the High Court might use its inherent powers under Section 482 of the Code of Criminal Procedure to put a lid on everything., Mr. Surjeet Bhadu, Advocate, representing the complainant, argued that a prima facie case is made against the petitioner and sought dismissal of the petition., The incidents of 18 February 2022 at Chamkaur Sahib would constitute a separate cause of action. This occurrence is not mentioned in the complaint because the complainant was unaware of it at the time of filing. During the investigation, the investigator linked that incident, which occurred at a different place and under a different scenario, with the incident of 12 April 2022 at Panjola in District Rupnagar. There is no proximity between the two. Under Section 154 of the Code of Criminal Procedure, the officer‑in‑charge of a police station registers an FIR on receipt of information disclosing the commission of a cognizable offence. The information about the Chamkaur Sahib incident was entered only as a Daily Diary Report, not as an FIR. Consequently, linking the prior incident with the present FIR would be legally impermissible., As per the State’s reply dated 1 July 2022, filed on an affidavit of the concerned Deputy Superintendent of Police, the FIR was registered on 12 April 2022, and the investigation continued until 2 May 2022, when the Punjab and Haryana High Court stayed further proceedings. The investigation, spanning seventeen days, recorded statements of spot witnesses, and the reply indicates that the investigation was complete on all material particulars to incriminate the petitioner. The parties do not dispute the fact of the interview and its correctness. The veracity of the statements made in the interview is not required to be examined for prosecution, as it remains undisputed. The only relevant issue is whether the interview of the petitioner given on 16 February 2022 led to the incident of 12 April 2022. Accordingly, the disruption of the investigation does not constitute stifling of investigation., The State contends that the investigation revealed that the speech of Kumar Vishwas inflamed sentiments and led to various untoward incidents where agitated groups created ruckus, hooliganism, and raised slogans against Aam Aadmi Party supporters. Such incidents were entered as separate Daily Diary Reports, occurring on 18‑02‑2022 at Chamkaur Sahib; 28‑03‑2022 at Rupnagar; 03‑04‑2022 at Ghanuali; clashes between two communities on 29‑04‑2022; and the uploading of a fake video in March 2022. Even assuming all allegations are taken at face value, there is no evidence of any proximity between the interview and the incidents of Chamkaur Sahib or the incident of 12 April 2022, which are distinct criminal acts and not an outburst of the interview., The petitioner has been arraigned as an accused for violating Sections 153, 153A, 505, 505(2), 116, 143, 147, 323, 341, 120B of the Indian Penal Code and Section 125 of the Representation of the People Act, 1951., Section 153 of the Indian Penal Code makes it an offence when an act of provocation intends to cause a riot or the provocateur knows it will cause rioting. A perusal of the video transcript and the complaint does not point to any such intention or knowledge. Section 153A of the Indian Penal Code constitutes an offence when someone promotes enmity between different groups on the grounds of religion, race, place of birth, residence, language, etc., and does acts prejudicial to maintaining harmony. The complaint does not mention any differences created by the petitioner between groups, nor does it identify the alleged perpetrators’ personal or religious identities. It would be a travesty to conclude with certainty that the interview was intended to create polarization and disharmony when the comments were directed only at an individual and his alleged personal outlook., The State contends that clashes between two religious factions on 29‑04‑2022 are a probable repercussion of the interview. Given the lack of proximity between the time of the interview and the purported clashes, the State cannot be permitted to introduce evidence now to connect a remote clash with the petitioner’s statement. Thus, a prima facie perusal of the complaint, FIR and investigation does not make out a case under Section 153A of the Indian Penal Code., In Balwant Singh v. State of Punjab, (1995) 3 SCC 214, paragraph 9, the Supreme Court held that the intention to cause disorder or incite people to violence is the sine qua non of the offence under Section 153A of the Indian Penal Code and the prosecution must prove the existence of mens rea. This view was reiterated in Bilal Ahmed Kaloo v. State of Andhra Pradesh, (1997) 7 SCC 431, and subsequently by a three‑judge bench in Manzar Sayeed Khan v. State of Maharashtra, (2007) 5 SCC 1., Given the above, even if every word of the FIR and the interview is taken as gospel truth, it still does not constitute any offence under Section 153A of the Indian Penal Code, as the element of culpability and intention is missing., Section 505 of the Indian Penal Code makes it an offence when any statement is conducive to public mischief, and under clause (1) it includes publishing or circulating such a statement with intent to incite any group or create fear or alarm to the public. Even if the video interview were hypothetically baseless, there is no material to suggest intention or that it created or promoted enmity, hatred, or ill‑will between classes as its direct outcome. Hence, no case is made out under Section 505(1) and Section 505(2) of the Indian Penal Code., Section 341 of the Indian Penal Code makes wrongful restraint a penal offence. The incident where unknown persons wrongfully restrained the complainant on 12 April was linked to the petitioner’s video only by assumption. The petitioner was neither present nor did any person acting on his behest restrain the complainant and his associates; therefore, no offence is made out against him., Section 116 of the Indian Penal Code provides punishment for abetting an offence even if it is not committed. The first parameter to prove this offence is the availability of evidence of abetment or instigation, which is absent in the FIR., Section 323 of the Indian Penal Code provides for punishment for causing simple hurt. Section 321 of the Indian Penal Code makes it an offence when a person causes hurt by doing any act with the intention to cause hurt or with knowledge that he is likely to cause hurt. There is no prima facie allegation or evidence that the petitioner instigated any person to cause simple hurt to the complainant or his associates., Section 143 of the Indian Penal Code provides punishment for every member of an unlawful assembly. Section 141 defines an assembly of five or more persons with the common object of committing any act defined in the section. For the present FIR, the alleged objective would be to commit mischief, criminal trespass, or other offence, but there is no prima facie evidence connecting the petitioner with the incident as a member of such assembly., Section 147 of the Indian Penal Code prescribes punishment for rioting, and Section 146 makes rioting an offence whenever an unlawful assembly uses force or indulges in violence as a common object. There is no prima facie evidence to link the petitioner with this offence., Section 120B of the Indian Penal Code prescribes punishment for criminal conspiracy, and Section 120A defines criminal conspiracy as an agreement between two or more persons to do or cause to be done any illegal act, or any act which may not be illegal but is carried out by illegal means. No constituent of criminal conspiracy is present in the FIR against the petitioner; therefore, no offence under Section 120B is made out., Section 125 of the Representation of the People Act, 1951 penalises the promotion or attempt to promote feelings of enmity or hatred between different classes of citizens of India in connection with an election on the grounds of religion, race, caste, community, or language. The complainant did not allege that the petitioner was advancing any party agenda or contesting the election. A plain reading of the interview transcript or the complaint does not point to any intention by the petitioner to act under this provision., Given the above, none of the penal provisions under which the petitioner is arraigned are prima facie made out against him., In paragraph 11(I) of the petition, the petitioner states on affidavit that he made the alleged statement merely to place in the public domain for healthy discussion the so‑called mindset and narrative of an individual and had no intent of creating any unrest or incident. Further, if anyone has a grievance against the petitioner’s statements, it is the individual against whom the statements were made. Since that individual has not countered or taken legal action, the complainant has no cause to proceed with a proxy agenda of targeting the petitioner., In S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574, a three‑judge bench of the Supreme Court held that the problem of defining the area of freedom of expression when it appears to conflict with various social interests enumerated under Article 19(2) requires a compromise between the interest of freedom of expression and social interests. Freedom of expression cannot be suppressed unless the situation created by allowing the freedom is pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far‑fetched; it should have a proximate and direct nexus with the expression, akin to a “spark in a powder keg.”, In Shreya Singhal v. Union of India, (2015) 5 SCC 1, the Supreme Court held that there are three concepts fundamental to the reach of freedom of speech and expression: discussion, advocacy, and incitement. Mere discussion or advocacy of a cause, however unpopular, is at the heart of Article 19(1)(a). It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) applies, allowing a law to be made curtailing speech that tends to cause public disorder or affect the sovereignty and integrity of India, the security of the State, or friendly relations with foreign States., Jawaharlal Nehru, in his inaugural address of 14 August 1947, pledged: “Long years ago we made a tryst with destiny, and now the time comes when we shall redeem our pledge… At the stroke of the midnight hour, when the world sleeps, India will awake to life and freedom… It is fitting that at this solemn moment we take the pledge of dedication to the service of India and her people and to the larger cause of humanity.”, There cannot be any democracy without freedom of choice and free speech. In response to his older brother’s arrest for sedition, Benjamin Franklin said, “Without freedom of thought, there can be no such thing as wisdom; and no such thing as public liberty, without freedom of speech.” In a democracy, pre‑election times are when people’s information matters most. The petitioner, being a social educator, while sharing the alleged exchange with his former associate, cannot be said to have spewed venom. There is nothing to infer any intention to divide classes on communal lines., The petitioner was not one of the ten to twelve unknown persons who allegedly waylaid the complainant. There is no prima facie material connecting the incident of 12 April 2022 with the petitioner’s interviews, and missing links preclude expanding the scope of the complaint to associate the subsequent incident by fishing for evidence based on assumptions and suspicions of the complainant., Given the above, it is a fit case for the Punjab and Haryana High Court to prevent the abuse of the process of law because the allegations in the complaint and the investigation do not contain any material that even remotely links the incidents, including that of 12 April, with the petitioner’s interviews., In the facts and circumstances peculiar to this case, the Punjab and Haryana High Court’s non‑interference would result in a miscarriage of justice; therefore, the court invokes its inherent jurisdiction under Section 482 of the Code of Criminal Procedure and quashes the FIR and all subsequent proceedings against the petitioner. All pending applications, if any, stand closed. Petition allowed.
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Petitioner versus Respondents. Mr. Zaid Anwar Qureshi in behalf of Hulyalkar & Associates for the Petitioner. Mr. J. P. Yagnik, Additional Public Prosecutor for the Respondent State. At the outset, learned counsel for the petitioner seeks leave to amend to mask the name of the prosecutrix wherever it appears in the petition, including in the cause title of the aforesaid petition. Leave granted. Amendment to be carried out during the course of the day., Despite Section 228A of the Indian Penal Code and despite Wakodikar 1/3 repeatedly telling the advocates that it is an offence to disclose the name of the prosecutrix which is punishable with two years, the name of the prosecutrix is disclosed in the aforesaid petition. Hence, the law firm which drafted the petition is to deposit costs of Rs. 5,000 with the Kirtikar Law Library within two weeks from today., On amendment being carried out, issue notice to the respondents returnable on 8 February 2023. Learned Additional Public Prosecutor waives notice on behalf of Respondent No. 2 State., In addition to court notice, learned counsel for the petitioner is to serve Respondent No. 1 by private notice and file affidavit of service before the next date., Spare copy to be supplied in the Registry of the Trial Court, if not supplied earlier, within two weeks from today, failing which the petition shall stand dismissed for non‑prosecution, without any further reference to the Trial Court. Wakodikar 2/3., Having heard learned counsel for the petitioner, in the meantime, till the next date, the Trial Court is to defer the proceeding pending before it. Wakodikar 3/3.
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Criminal Revision No. 04/2022 Case No. 32/2022 Unique Case ID No. DLND01-000849-2022 Rishabh Jain Revisionist Versus State (NCT of Delhi) Respondent FIR No. 35/2015 under Section 509/34 of the Indian Penal Code Petition received on assignment: 02.02.2022 Arguments on petition concluded: 03.02.2022 Date fixed for pronouncement: 04.02.2022 Date of pronouncement: 04.02.2022, By way of the instant order, I propose to dispose of the instant revision petition filed on behalf of revisionist Rishabh Jain impugning the order dated 01.02.2022, whereby his application seeking permission to travel abroad (Dubai) was dismissed by Learned Metropolitan Magistrate-05, New Delhi District Court., Briefly stated: Revisionist herein is facing trial for commission of the offence under Section 509/34 of the Indian Penal Code. During the course of trial, revisionist moved an application seeking permission from the Learned Trial Court to travel abroad, which came to be dismissed by the Learned Trial Court vide order dated 01.02.2022. Revisionist has now preferred the instant revision challenging the impugned order., Shri Yoginder Singh, Learned Counsel for the revisionist has forcefully argued that the impugned order dated 01.02.2022 is not sustainable in the eyes of law as the same is based on conjectures and surmises and the Learned Magistrate while rejecting the application has not placed reliance upon the documents filed by the revisionist. Counsel for the revisionist submits that applicant/accused seeks permission to travel abroad to attend the wedding of his friend. It is submitted that the revisionist is permanent resident of Delhi and there are no chances of his fleeing away from the course of trial. It is submitted that booking of hotel rooms was done by his friend Anchit Soni, who is also travelling in the same flight along with the revisionist, thus name of the revisionist was not mentioned in the booking details. It is submitted that booking receipts are auto generated from the website. It is further submitted that the revisionist was never asked by the Learned Trial Court to produce the air tickets and he was only asked to file the itinerary. It is submitted that along with the present revision petition, the revisionist has filed on record the itinerary and the air tickets. It is submitted that the wedding is from 03.02.2022 to 06.02.2022 and the revisionist seeks the permission to travel abroad from 03.02.2022 to 15.02.2022 to attend the wedding and to be on vacation. It is thus prayed that instant revision petition may be allowed setting aside the impugned order and he may be permitted to travel abroad as prayed for in the instant revision petition., On the contrary, it is vehemently argued by Learned Additional Public Prosecutor for the State that the present revision petition is not at all maintainable and the Learned Trial Court has rightly dismissed his application seeking permission to travel abroad. It is submitted that hotel booking receipts do not make any mention of the name of the revisionist and the wedding in which the revisionist is seeking permission to go abroad is not of any near relative but of his friend. Hence, the instant revision petition deserves to be dismissed., I have heard and considered the rival submissions made by Learned Counsel for the revisionist and Learned Additional Public Prosecutor for the State and also gone through the material available on record., I am constrained to observe that the conduct of the revisionist is very callous and he is taking the process of court of law for granted. The application of the revisionist to travel abroad has been dismissed by the Learned Trial Court and his revision petition is still pending, yet I am informed by the Learned Counsel for the revisionist that the revisionist has already reached the airport, as if outcome of the instant revision petition is a foregone conclusion., Be that as it may, the Learned Trial Court is master of proceedings in the lis pending before it. The Learned Trial Court is in the best position to assess the credentials of the litigants appearing before it and it would be very unsafe for superior courts to substitute its own subjective opinion with the opinion of the Learned Trial Court in the matters relating to the conduct of proceedings before the Learned Trial Court. Reliance is placed upon the judgment of the Supreme Court of India in a case titled Kishan Rao v. Shankargouda (2018) 8 SCC 165 wherein it has been observed as under:, 12. This Court has time and again examined the scope of Section 397/401 of the Criminal Procedure Code and the ground for exercising the revisional jurisdiction by the High Court. In State of Kerala vs. Puttumana Illath Jathavedan Namboodiri, 1999 (2) SCC 452, while considering the scope of the revisional jurisdiction of the High Court this Court has laid down the following: In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice. On scrutinizing the impugned judgment of the High Court from the aforesaid standpoint, we have no hesitation to come to the conclusion that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by reappreciating the oral evidence., 13. Another judgment which has also been referred to and relied upon by the High Court is the judgment of this Court in Sanjaysinh Ramrao Chavan vs. Dattatray Gulabrao Phalke and others, 2015 (3) SCC 123. This Court held that the High Court in exercise of revisional jurisdiction shall not interfere with the order of the Magistrate unless it is perverse or wholly unreasonable or there is non-consideration of any relevant material, the order cannot be set aside merely on the ground that another view is possible. Following has been laid down in paragraph 14: 14 Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 of the Criminal Procedure Code is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction., 14. In the above case also conviction of the accused was recorded, the High Court set aside the order of conviction by substituting its own view. This Court set aside the High Court's order holding that the High Court exceeded its jurisdiction in substituting its views and that too without any legal basis., In the case at hand, the Learned Trial Court has duly considered the submissions made and observed as under: On perusal of booking receipts, it has been found that the rooms have been booked in the name of one Anchit Soni. Further, the number of guests have been 4-5 persons. Nowhere these booking receipts mention the name of the accused/applicant. Further, no air travel tickets have also been filed in this case. Also the wedding in which the applicant/accused is seeking permission to go abroad is not of any near relative but of his friend. In view thereof, it seems that the present travel itinerary filed before this Court is false and misleading as the same has been filed without proper documents. Earlier also, vide order dated 23.11.2021 while granting permission to the applicant/accused to renew his passport, the relief seeking permission to travel abroad was rejected on the ground that no travel itinerary has been filed. The present application for reasons mentioned above is dismissed and disposed off accordingly., Learned Counsel for the revisionist has failed to point out any arbitrariness or illegality in the order of the Learned Trial Court. Even the tickets have not been placed on record by the revisionist before the Learned Trial Court. Even on earlier occasions, his permission for traveling abroad was declined by the Learned Trial Court on the very same ground and yet the revisionist has opted not to place the tickets on record before the Learned Trial Court. It appears that the revisionist is either very casual or he intends to conceal something important from the Learned Trial Court. In either case, this Court finds no occasion to interfere with the exercise of the discretionary powers vested in the Learned Trial Court. Accordingly, this court finds no valid reasons to interfere in the order dated 01.02.2022. Reliance is placed upon the observations made by the Delhi High Court in the matter of Taron Mohan v. State & Anr 2021 SCC OnLine wherein it has been observed as under: 9. The scope of interference in a revision petition is extremely narrow. It is well settled that Section 397 of the Criminal Procedure Code gives the High Courts or the Sessions Courts jurisdiction to consider the correctness, legality or propriety of any finding inter se an order and as to the regularity of the proceedings of any inferior court. It is also well settled that while considering the legality, propriety or correctness of a finding or a conclusion, normally the revising court does not dwell at length upon the facts and evidence of the case. A court in revision considers the material only to satisfy itself about the legality and propriety of the findings, sentence and order and refrains from substituting its own conclusion on an elaborate consideration of evidence., As a cumulative effect of the above discussion, the instant revision petition stands dismissed., Copy of this order be sent to the Learned Trial Court as necessary information., Copy of the order be given dasti., File of present revision petition be consigned to Record Room., Announced in the open court on 04 February 2022. (Dharmender Rana)
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Date of decision: 16 November 2023. Through: Mr. N. Hariharan, Senior Advocate (Amicus Curiae) with Mr. Sharian Mukherji, Ms. Rekha Punya Angara and Mr. Mueed Shah, Advocates. Mr. Vineet Dhanda, Advocate versus through: Mr. Prashant Mehta, Advocate for Respondent 1 and Mr. Raghav Marwah, Advocate for Respondents 2 and 5 to 8. Mr. Vidit Gupta, Advocate for Respondents 3 and 9., The present contempt petition has been listed in pursuance of the order dated 14 December 2022 passed by the learned Single Judge in Civil Suit (Commercial) 2. The plaintiff filed the suit against the respondents seeking the following reliefs: (A) a decree for permanent injunction restraining the defendants, their partners, proprietors, assigns in business, associates, employees, family members, licensees or anyone connected with them from directly or indirectly securing registration or using the mark TOWER as a trademark, trade name, domain name, hashtag, social media handle, email address or as part of it in relation to goods in classes 29 or 30 or any other trademark deceptively similar to the plaintiff’s registered trademark TOWER or logo, amounting to infringement; (B) a decree for permanent injunction restraining the defendants and their associates from using the mark TOWER in relation to providing goods in classes 29 and 30 or any other trademark deceptively similar to the plaintiff’s trademark TOWER or logo, as such use is likely to lead to confusion, deception, passing off or unfair competition; (C) an order for rendition of accounts of profits illegally earned by the defendants and a decree for an amount so found due or, in the alternative, a decree for Rupees Two Crores (Rs. 2,00,00,000) towards compensatory and penal damages in favour of the plaintiff; (D) an order for exemplary costs of the present proceedings in favour of the plaintiff and against the defendants; and (E) any other order that the Hon'ble High Court may deem fit and proper in the facts and circumstances of the present case., The suit was listed before the learned Single Judge on 23 November 2022. On that date, the respondents handed over a compilation of documents to the learned Single Judge, who directed the respondents to place the documents on record during the day. Among the documents was one dated 02 March 2016, which was believed at the relevant time to be a copy of an order passed by the Intellectual Property Appellate Board on that date, and it was placed on record., The present proceedings have emanated from the filing of the document dated 02 March 2016 passed by the Intellectual Property Appellate Board. In addition to that document, the compilation included a list of respondents’ pending and registered trademarks, applications for registrations filed by the respondents, status of various applications, and other related documents., The matter was taken up on 24 November 2022 and, in compliance with the order dated 23 November 2022, the respondents filed the compilation of documents on the record of this Court vide Diary No. 1935402/2022. An issue was raised regarding the authenticity of the document dated 02 March 2016. Since Respondent No. 1 believed the document to be authentic, the senior counsel engaged by the respondents gave a no‑objection to an investigation into its authenticity, indicating that neither the senior counsel nor the respondents were certain of its authenticity at that time. Consequently, vide order dated 24 November 2022, the learned Single Judge directed the Registrar (Vigilance) and the Registrar (Original Side) to conduct an inquiry into the authenticity of the document and file a report in a sealed cover. In the meantime, Respondent No. 2 gave an undertaking before the learned Single Judge not to manufacture, sell or offer for sale any product under the impugned mark TOWER until the next date of hearing on 02 December 2022. However, vide order dated 10 January 2023, the learned Single Judge permitted the respondent to amend the undertaking because it could not extend to goods for which the defendants’ right to use the mark was not contested by the plaintiff., On 02 December 2022, the learned Single Judge recorded that the Registrar (Vigilance) had filed its report in a sealed cover. The judge opened the sealed cover and perused the report in the presence of the parties, but the report was not shared with Respondent No. 1. After reviewing the report, the learned Single Judge concluded that no records were available of the order dated 02 March 2016 of which the document appeared to be a copy. In view of this, the learned Single Judge exercised powers under Section 18 of the Contempt of Courts Act, 1971 and placed the matter before the Hon'ble Chief Justice for reference to the appropriate Division Bench. Consequently, the present matter was posted before the Hon'ble High Court., An unconditional apology affidavit has been tendered by Respondent No. 1, which sets out the circumstances under which the respondent came into possession of the copy of the document. It states that for the services of Indian Trademarks Co., a solicitor was engaged in 2008 and, through its partner Mr. Sanjay Aggarwal, Advocate, the firm represented the respondents before the Trademark Registry and the Intellectual Property Appellate Board as required. In October 2015, Respondent No. 1 was informed by Mr. Sanjay Aggarwal that a petition had been filed before the Intellectual Property Appellate Board and that the advocate would appear and represent the respondent. The advocate further suggested that a senior counsel would be required and demanded a fee. Consequently, a total sum of Rs. 5,00,000 (Rupees Five Lakh only) was paid to Mr. Sanjay Aggarwal, of which Rs. 2,50,000 was paid from the personal account of Respondent No. 1 and the remaining Rs. 2,50,000 was paid from the personal account of his brother, Mr. Atule Aggarwal, Respondent No. 2, on 27 October 2015, on his instructions. Thereafter, Mr. Sanjay Aggarwal informed Respondent No. 1 that his firm would represent the respondent before the Intellectual Property Appellate Board., It is further stated that around the end of February or early March 2016, Mr. Sanjay Aggarwal called Respondent No. 1 to his office and asked for additional money to engage other persons for the matter, which was to be listed the next day. Trusting the advocate, who had been working for the respondents since 2008, Respondent No. 1 paid a further fee of Rs. 3,00,000 in cash. Approximately one month later, in early April 2016, Mr. Sanjay Aggarwal called Respondent No. 1 to his office and handed over the document, which he said was a copy of the order passed by the Intellectual Property Appellate Board on 02 March 2016. No other documents pending before the Intellectual Property Appellate Board were handed over. Subsequently, he collected the balance payment of Rs. 2,00,000 (Rupees Two Lakh only) from the respondent in cash., It is further averred that after learning that the document was manufactured, Respondent No. 1 filed a complaint before the Bar Council of Delhi against Mr. Sanjay Aggarwal, Advocate, which is pending consideration. Learned counsel for the respondents submits that, even otherwise, filing of that document was of no help to the respondents as they were defendants in the suit filed by the plaintiff. Nonetheless, the document was believed to be true and genuine as handed over by the advocate, and therefore it was filed before the Court., In the unconditional apology affidavit, it is submitted that the contempt was not intentional or deliberate but resulted from the copy of the order provided by Mr. Sanjay Aggarwal, Advocate. Accordingly, the respondents seek an unconditional apology for any inconvenience caused to this Court and have undertaken that in future they shall be careful while filing any document before any Court or in judicial proceedings., Keeping in view the unconditional apology tendered by the respondents, we discharge the respondents from these proceedings. However, we direct the Bar Council of Delhi to take appropriate action, as per law, against Mr. Sanjay Aggarwal, Advocate, if he is found guilty of manufacturing the order dated 02 March 2016 purported to be by the Intellectual Property Appellate Board.
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Chanda Kochhar, an Indian inhabitant, residing at 45 CCI Chambers, Dinshaw Vachha Road, Churchgate, Mumbai 400020, is the appellant. ICICI Bank Limited, a company having its office at ICICI Bank Towers, Bandra Kurla Complex, Bandra (East), Mumbai 400051, is the respondent. Senior advocates for the appellant are Mr. Aspi Chinoy, Mr. Rohaan Cama, Mr. Rohan Dakshini, Mr. Vishesh Malviya, Ms. Deepa Shetty, Mr. Kyrus Modi and Mr. Pranav Narsaria of Rashmikant and Partners. Senior advocates for the respondent are Mr. Darius Khambata, Mr. Mustafa Doctor, Mr. Aditya Mehta, Mr. Ali Antulay, Mr. Abhijit Joshi, Mr. Rahul Dwarkadas, Ms. Silpa Nair, Ms. Juhi Bahirwani and Ms. Sanaya Contractor of Veritas Legal., These appeals impugn a common order and judgment pronounced on 10 November 2022 by a learned Single Judge of the Supreme Court of India who dismissed the appellant's Interim Application No.1014 of 2022 but granted reliefs in Interim Application No.307 of 2020 filed by the respondent. The main issue raised by the appellant is whether the respondent, having accepted the appellant's request for early retirement, could subsequently terminate the appellant's services for cause with effect from the date of acceptance of early retirement., The appellant, in a suit filed by her, namely Suit No.114 of 2022, is primarily seeking specific performance of the letter dated 4 October 2018 by which the respondent accepted the appellant's early retirement and the benefits referred to therein under the early retirement scheme. The appellant is inter alia seeking reinstatement of her Employee Stock Options (ESOPs) under the Employee Stock Option Scheme., As against the appellant's claim, the respondent in its Suit No.313 of 2020 has sought clawback of bonuses and revocation of retirement benefits, including vested and unvested ESOPs. The respondent's case is that the services of the appellant were treated as termination for cause with effect from 4 October 2018 for breach of good conduct during the course of her employment., As these appeals have been filed against an interim order, only skeleton facts relevant for the purpose of the present appeals are given. The appellant joined the respondent in 1984 as a Trainee Officer, rose through the ranks and on 1 May 2009 was appointed, and from time to time re‑appointed, as Managing Director and Chief Executive Officer of the respondent. The term of the last appointment was to end on 31 March 2019., During her employment, the appellant accepted and agreed to various policies of the respondent which included the Code of Conduct, framework for dealing with conflict of interest, deeds for covenants and clawback agreement. She was also required to make various disclosures in compliance with the provisions of the Companies Act, 1956, the Companies Act, 2013, the Banking Regulation Act, 1949, the Securities and Exchange Board of India (Listing Obligation and Disclosure) Regulations, 2015, the Reserve Bank of India Master Circular on Loans and Advances and Reserve Bank of India Guidelines on Compensation of Whole Time Directors/Chief Executive Officers., The appellant's case is that during the period April 2007 to March 2017 she was granted ESOPs considering factors such as appraisal of performance and good conduct. In July 2016 a news article contained allegations against the appellant with regard to loans granted to Videocon Group companies, alleging that these loans were granted as a quid pro quo for investments by Mr. Venugopal Dhoot of Videocon Group or his affiliates in NuPower Renewables Pvt. Ltd., a company promoted by Mr. Deepak Kochhar, husband of the appellant., In view of these allegations, the respondent on 26 December 2016 appointed a reputed law firm to conduct an independent enquiry into the allegations. The appellant and her husband participated in the enquiry and provided information and documents indicating that there were no investments made by Mr. Venugopal Dhoot and his affiliates in NuPower Renewables. Relying on the information provided, the law firm submitted a report to the respondent stating that there was no merit in the allegations., Thereafter, in April 2018, the respondent received a whistleblower letter primarily alleging abuse of position by the appellant and the business dealings between Videocon Group and Mr. Deepak Kochhar. By a letter dated 20 April 2018 the appellant informed the respondent that she had made inquiries with her husband and ascertained that he had business dealings with Mr. Venugopal Dhoot/Videocon Group over many years, which contradicted what was stated to the law firm in December 2016. The appellant stated that in her disclosures to the respondent she had disclosed the directorships of her husband and that there was no information available to her that placed her in a position of conflict of interest or difficulty in carrying out her functions., On 29 May 2018 the Board of Directors of the respondent decided to conduct an enquiry into the allegations against the appellant. Disclosures were also made to the Stock Exchange. The law firm appointed in December 2016 was informed that, in light of the new disclosures, its earlier report would no longer be valid. The Stock Exchange was informed by the respondent on 30 May 2018 that it had decided to conduct an enquiry into the whistleblower complaint. Retired Justice B.N. Srikrishna was appointed on 6 June 2018 by the Audit Committee of the respondent to conduct an independent enquiry into the allegations against the appellant. At a Board meeting held on 18 June 2018 the appellant communicated her decision to go on leave until the enquiry was completed, which was accepted by the respondent and necessary disclosures were made to the Stock Exchange., While the enquiry was still pending, the appellant addressed a letter requesting the Board of Directors to grant her early retirement. The respondent, by its letter dated 4 October 2018, intimated the Board's approval and referred to benefits under the Early Retirement Scheme. An undertaking dated 19 July 2016 signed by the appellant was also enclosed, in which she acknowledged that the undertakings and commitments were reasonable and part of her fiduciary duties and obligations to the respondent, and that in the event of any breach the respondent would be entitled to seek legal remedies including forfeiture of any benefits at its sole discretion. The respondent's letter of 4 October 2018 also referred to certain ESOPs not yet granted to the appellant, pending approval of the Reserve Bank of India, and stated that the grant of such ESOPs would be decided by the Board only upon conclusion of the enquiry., Between October 2018 and January 2019, pending the completion of the enquiry, the appellant exercised 690,000 ESOPs and received other benefits in accordance with the letter dated 4 October 2018. The appellant participated in the enquiry conducted by retired Justice B.N. Srikrishna and in December 2018 also submitted oral and written submissions., Retired Justice B.N. Srikrishna submitted his enquiry report dated 27 January 2019 to the respondent. The report highlighted the conduct of the appellant and found that she had committed gross and serious violations of the Code of Conduct for extended periods of time. The Board of Directors, after considering the findings, unanimously resolved to treat the separation of the appellant from the respondent as termination for cause under the respondent's internal policies, schemes and the Code of Conduct, with all attendant consequences including revocation of all existing and future entitlements such as unpaid amounts, bonuses, increments, vested and unvested and unexercised stock options and medical benefits, and to claw back all bonuses paid from April 2009 until March 2018. Disclosures to the Stock Exchanges were made and the Reserve Bank of India was immediately informed about the findings., The respondent addressed an email dated 30 January 2019 to the appellant informing her of the Board's decision. The appellant was informed that the communication regarding early retirement benefits dated 4 October 2018 stood revoked and that the vested and unvested ESOPs previously allotted to her were revoked and returned to the common pool in accordance with the respondent's policies. By a letter dated 1 February 2019, addressed by the Group Chief Human Resources Officer, the respondent reiterated that the appellant's separation was treated as termination for cause and quantified the bonuses paid to the appellant during April 2009 to March 2018 at Rs.7,41,36,777/- to be clawed back., The appellant, by a letter dated 4 February 2019, responded contending that once the Board had accepted her early retirement in October 2018, the employer‑employee relationship ended. The respondent addressed a letter dated 5 February 2019 to the Reserve Bank of India seeking approval, under the provisions of the Banking Regulation Act, 1949, to treat the appellant's separation as termination for cause with effect from 30 January 2019. On 13 March 2019 the Reserve Bank of India approved the request but directed that the termination be deemed to have taken effect on 4 October 2018, the appellant's last working day as Managing Director and Chief Executive Officer, and advised the respondent to follow its policies and all applicable laws while dealing with the termination., In the meantime the respondent provided the appellant with relevant excerpts of the enquiry report and advised that these were privileged and confidential and not meant for circulation. Correspondence was exchanged wherein the respondent called upon the appellant to repay the bonuses paid during April 2009 to March 2018, and the appellant reiterated her stand seeking restoration of all benefits allegedly granted under the respondent's letter dated 4 October 2018., In November 2019 the appellant filed Writ Petition No.33151 of 2019 in the Supreme Court of India seeking a declaration that the communication dated 4 October 2018 issued by the respondent was valid, subsisting and binding, and that the email dated 30 January 2019 and the letter dated 1 February 2019 were illegal, null and void ab initio, as was the communication dated 13 March 2019 issued by the Reserve Bank of India. The writ petition was dismissed on 5 March 2020 on the ground that the dispute was a contractual dispute not amenable to writ jurisdiction. The Special Leave Petition challenging this order was dismissed on 1 December 2020, with the Court holding that the only controversy was whether a resignation earlier accepted could later be terminated, which fell within the realm of contractual relationship between the appellant and the respondent, a private bank., In February 2020 the Enforcement Directorate filed a complaint against the appellant and her husband under the provisions of the Prevention of Money Laundering Act; those proceedings are still pending. During the pendency of the writ petition, the respondent filed Suit No.313 of 2020 against the appellant. The appellant thereafter filed Suit No.114 of 2022 and also took out Interim Application No.1014 of 2022. The plaint was lodged on or about 28 January 2022, just two days before the suit would have been barred by limitation. It is averred in the plaint that the cause of action arose on 30 January 2019 when the respondent addressed an email to the appellant terminating her services and revoking all her entitlements and benefits., The reliefs sought by the appellant in Interim Application No.1014 of 2022 are: (a) a stay of the operation and effect of the respondent's email dated 30 January 2019 and letter dated 1 February 2019; (b) an injunction restraining the respondent from acting upon or in furtherance of those communications and from treating the appellant as having been terminated for cause; (c) an order directing the respondent to treat all 1,662,750 unvested stock options as duly vested pursuant to paragraph (e) of the acceptance letter dated 4 October 2018; (d) an order directing the respondent to earmark 1,420,650 stock options (i.e., 1,254,275 unexercised stock options under paragraph (c) and 1,662,750 unvested stock options under paragraph (e)) for the appellant's entitlement; (e) appointment of a Court Receiver under Order XL Rule 1 of the Code of Civil Procedure, 1908 to place the 1,420,650 shares in custody and to allow the appellant to purchase them on disposal of the suit at the specified exercise price; (f) an injunction restraining the respondent from withholding any rights and benefits to which the appellant is entitled under the acceptance letter, including vested and unvested stock options and medical insurance; and (g) a temporary injunction restraining the respondent, its employees, agents or any other persons from dealing with or alienating the said stock options., The prayers in Suit No.114 of 2022 filed by the appellant are: (A) a declaration that the appellant retired from the bank on 4 October 2018 and is entitled to the rights, benefits and entitlements set out in the bank's acceptance letter of that date, and that the respondent's purported subsequent termination for cause on 30 January 2019 is null and void; (B) a permanent injunction restraining the bank from acting in breach of its contractual obligations flowing from the acceptance letter; (C) an order directing the bank to specifically perform its contractual obligations under the acceptance letter; (D) an order directing the bank to treat all 1,662,750 unvested stock options as duly vested according to the original vesting schedule; (E) an order directing the bank to restore the appellant to the position she held on 29 January 2019 with the same rights, entitlements, benefits and equivalent time period to exercise the stock options; (F) alternatively, if specific performance is not granted, an order directing the bank to compensate the appellant for damages pertaining to the stock options in the sum of Rs.1,732,48,60,755/-; (G) a stay of the operation and effect of the bank's email dated 30 January 2019 and letter dated 1 February 2019 pending final disposal of the suit; (H) an injunction restraining the bank from treating the appellant as having been terminated for cause; (I) an interim order directing the bank to treat all 1,662,750 unvested stock options as duly vested; (J) an order directing the bank to earmark the 1,420,650 stock options for the appellant's entitlement and restraining any transfer or lapse of those options; (K) appointment of a Court Receiver under Order XL Rule 1 of the Code of Civil Procedure, 1908 to hold the 1,420,650 shares in custody; (L) an injunction restraining the bank from withholding any rights and benefits, including vested and unvested stock options and medical insurance; and (M) a temporary injunction restraining the bank or its agents from dealing with or alienating the stock options., Elaborate submissions were made by Mr. Aspi Chinoy and Mr. Darius Khambata on behalf of the appellant. Mr. Chinoy submitted that the appellant's offer of early retirement on 3 October 2018 and the respondent's acceptance by its letter dated 4 October 2018 resulted in a contract for retirement, which terminated the employer‑employee relationship; consequently the respondent could not thereafter take any disciplinary action or treat the appellant's employment as terminated for cause. He argued that reliance on the preliminary enquiry report to justify termination was misplaced and that the enquiry was a fact‑finding exercise that could not be used to affect any right or benefit of the appellant. He further contended that the enquiry report was privileged and confidential, that the Single Judge's findings were erroneous, and that the respondent's reliance on the report was contrary to law, unfair and mala fide. Finally, he maintained that the respondent could not revoke the retirement benefits or ESOPs on the ground of alleged non‑compliance with good conduct, as the termination for cause was itself invalid.
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Khambata submitted: the reliefs sought by appellant are in the nature of final reliefs and any grant of such reliefs would amount to decreeing appellant's suit at the interim stage; in any event, the Employee Stock Option Plans claimed by appellant have already been cancelled in 2019 and subsequently added to the common pool from which they have been distributed to other eligible employees of respondent. The relief sought by appellant in effect is a mandatory order directing a fresh issue of Employee Stock Option Plans at this interlocutory stage; any grant of the interim reliefs would cause irreparable injury and prejudice to respondent in as much as even if appellant's suit is ultimately dismissed, respondent would then be required to seek recovery of the shares acquired by appellant and/or monetary equivalent of the same; the balance of convenience is completely in favour of respondent since it is a public listed company; the appeals seek re‑appreciation of material considered in the impugned order; it is well settled that the High Court should not hold a mini‑trial at the stage of grant of temporary injunction; Employee Stock Option Plans contract and the contract of employment are two separate contracts. Contract of employment is governed by appellant's appointment letter, Board approvals and Reserve Bank of India approvals for her appointment as Managing Director and Chief Executive Officer, deeds of covenants and ICICI Bank's policies, whereas Employee Stock Option Plans are governed by a separate and independent contract, the terms of which are contained in the Employee Stock Option Plans of respondent and the various award confirmations and vesting confirmations issued to appellant from time to time; appellant had an obligation to ensure good conduct under both the contract of employment and Employee Stock Option Plans contract; the letter dated 4th October 2018 is not a new contract and cannot and does not put to an end to the rights and obligations of the parties under the subsisting contracts; reference to good conduct in the contracts is not a reference to the undertaking dated 19th July 2016 signed by appellant; the benefits listed in the letter dated 4th October 2018 were not unconditionally granted; revocation of the letter of 4th October 2018 was made only after concrete findings against appellant came to the knowledge of respondent from the enquiry report; even assuming appellant's contract of employment was not validly terminated for cause, Employee Stock Option Plans can be withdrawn or denied; appellant was given adequate opportunity to be heard by Mr. Justice B.N. Srikrishna (retired) and appellant and her husband have made oral as well as written submissions running into 66 pages which have been extensively referred to and relied upon in the enquiry report. Appellant never asked for any further hearing and instead only stated that she would be available for any further discussions or clarifications that Mr. Justice B.N. Srikrishna (retired) may want. Appellant has not pleaded or contended as to what additional material, facts or submission she would have made in the event she was given any further hearings and any such prejudice ought to be pleaded and proved; upon respondent coming to know after receipt of the enquiry report that appellant had, for extended periods of time, failed to make various disclosures to respondent as required under the Code of Conduct and the applicable laws and suppressed various facts from respondent, the Board revoked the letter dated 4th October 2018 and treated the separation of appellant as termination for cause. It is immaterial whether respondent has suffered any loss. It is settled law that when an employee has acted in violation of the rules of conduct, then the fact that it has resulted in no loss to the employer does not make the action of the employee any less illegal. The Bank's employee holds a position of trust where honesty and integrity are the sine qua non and it would never be advisable to deal with such matters leniently; the interim reliefs granted in favour of respondent by the learned Single Judge pertaining to 6,90,000 shares were correctly granted and were in accordance with the Reserve Bank of India directions dated 13th March 2019. Reserve Bank of India, by its letter dated 13th March 2019, has specifically directed respondent to make the termination effective from appellant's last working day, i.e., from 4th October 2018. Since appellant exercised the 6,90,000 Employee Stock Option Plans only after 4th October 2018, such Employee Stock Option Plans were vested but unexercised as on 4th October 2018. Therefore, there is nothing wrong in the interim relief being granted; appellant has not approached the High Court with clean hands and false statement with respect to Employee Retirement Scheme Scheme and vesting confirmation have been made in the suit and the affidavits filed; appellant has not challenged the enquiry or the enquiry report by Mr. Justice B.N. Srikrishna (retired). Though appellant has sought leave under Order II Rule 2 of the Code of Civil Procedure, 1908 to omit to sue and that it would file a separate leave application under Order II Rule 2 to sue for reliefs other than those claimed in the plaint, no such application has been filed., The learned Single Judge, after hearing the parties extensively, by a detailed judgment pronounced on 10th November 2022, dismissed the Interim Application No.1014 of 2022 filed by appellant and allowed respondent's Interim Application No.307 of 2020 by passing the following order: Mrs. Kochhar is restrained by an order of injunction from dealing with any of the 690,000 Employee Stock Option Plans already exercised by her during the period from 4th October 2018 to 30th January; Mrs. Kochhar shall disclose if she has sold or dealt with any of such shares as well as disclose her gain from such sale which shall be by way of Affidavit of Disclosure to be filed by her within six weeks from uploading of this Order., Our View: Though both Mr. Chinoy and Mr. Khambata made extensive submissions, what is to be noted is that the reliefs sought by appellant are in the nature of final reliefs and grant of such reliefs would amount to decreeing appellant's suit at the interim stage. In fact appellant has indicated during the oral arguments as well as in the pleadings that she seeks interim reliefs for exercising the Employee Stock Option Plans in order to be able to sell the share during the pendency of her suit. In paragraph 7 of the Interim Application No.5286 of 2022 in Appeal (lodging) No.38844 of 2022, appellant herself has pleaded that on the exercise of the stock options, appellant would be entitled to receive shares of respondent, a listed company, at the specified exercise prices, which appellant would thereafter be able to sell at a time when the price of the shares is most favourable. Any grant of the interim reliefs as sought by appellant would cause irreparable injury and prejudice to respondent, in as much as if respondent were to succeed in its suit and appellant were to lose in her suit, respondent would then be required to seek recovery of the shares acquired by appellant and/or monetary equivalent of the same. Appellant is an individual and respondent is a Bank whose shares are listed on the Stock Exchange. Whether appellant's offer of early retirement on 3rd October 2018 and respondent's acceptance thereof by its letter dated 4th October 2018 resulted in a contract or agreement for retirement on the terms mentioned in the said letter of acceptance or it resulted in cessation of the employer‑employee relationship that would preclude respondent from taking any disciplinary procedure or action against appellant or terminate appellant's employment for cause in January 2019 are all matters of trial which cannot be decided at the interim stage. Whether the letter of 4th October 2018 puts an end to the rights and obligations of the parties under the subsisting contracts or whether the letter dated 4th October 2018 constitutes a new contract thereby putting an end to the rights and obligations of the parties under the subsisting contract or whether benefits listed in the letter dated 4th October 2018 were unconditionally granted are also matters of trial. Whether reference to good conduct in the contracts is not a reference to the undertaking dated 19th July 2016 signed by appellant is also a matter for trial. Whether respondent, in view of the serious findings in the enquiry report by Mr. Justice B.N. Srikrishna (retired), could claw back the benefits that appellant derived during her employment between 2009 and 2018 is also a matter for trial. Whether Employee Stock Option Plans can be revoked or whether Employee Stock Option Plan is a separate contract are also matters for trial., Appellant is seeking a summary decree. The impugned order is a detailed order passed by the learned Single Judge in exercise of his discretionary powers and after hearing the parties at length. It is well settled, as held in Wander Limited and Anr. v. Antox India P. Ltd., that an Appellate Court ought not interfere with such exercise of discretion except where such exercise has been shown to be arbitrary, capricious or perverse. Further, the Appellate Court ought not reassess the material and seek to reach a conclusion different from the one reached by the Court below if the one reached by that Court was reasonably possible on the material. It is also settled law that the Appellate Court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage, it would have come to a contrary conclusion. If the discretion has been exercised by the Trial Court reasonably and in a judicial manner, the fact that the Appellate Court would have taken a different view may not justify interference with the Trial Court's exercise of discretion. Paragraph 14 of Wander reads as under: The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the Appellate Court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. The Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by the court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the Trial Court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph observed that these principles are well established, but as has been observed by Viscount Simon in Charles Osington & Co. v. Johnston the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case. The appellate judgment does not seem to defer to this principle., There is nothing to indicate that the discretion exercised by the learned Single Judge is arbitrary or capricious or perverse or unjustified in law. The Trial Court has exercised its discretion reasonably and in a judicial manner. The observations made by the learned Single Judge on the conduct of appellant, though not conclusive, are very serious in nature. If the interim reliefs sought by appellant are granted, that would cause irreparable injury and prejudice to respondent. The balance of convenience is completely in favour of respondent, since it is a public listed company, and if appellant succeeds in her suit, respondent can at that stage be directed to purchase shares from the stock market or to pay an amount equal to their value to appellant. Conversely, if appellant's suit is ultimately dismissed, respondent would then be required to seek recovery of the shares acquired by appellant and/or monetary equivalent of the same. Appellant is an individual, whereas respondent is a public listed company. It is also well settled that it is not appropriate for a High Court to hold a mini‑trial at the stage of grant of temporary injunction as held in Zenit Mataplast Private Limited v. State of Maharashtra & Ors., We should also note that appellant has approached this Court just two days before the expiry of the three‑year limitation period from the date of cause of action. The delay in approaching the Court would itself disentitle respondent from seeking any interim relief as prayed for. Considering the prayers, the suit is for specific performance and appellant is seeking specific performance at the interim stage, which cannot be granted particularly in view of the reasons recorded above., Therefore, in our view, no interference is called for. Both appeals are required to be dismissed and are hereby dismissed. Costs to be cost in the suit. All interim applications also stand disposed., All rights and contentions of the parties are kept open. Any findings made in this judgment or by the learned Single Judge against appellant are only prima facie findings and not conclusive., Counsel state that writ of summons have been served in both suits. Written statement to be filed and copy served on or before 30th June 2023. Parties to file their respective affidavits of documents by 15th July 2023 and complete discovery and inspection and also exchange statements of admission and denial with reasons for denial by 31st July. Suit be listed on 4th August 2023 for issues, subject to the convenience of the learned Single Judge, at which time parties shall go with agreed draft issues and a separate list of issues on which they are unable to agree.
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Criminal Revision No.172 of 2022 Rudra Narayan Ray, son of late Dr. Prasanta Ray, resident of First Fidar Road, Bankura, P.O., P.S. and District Bankura, West Bengal versus Piyali Ray Chatterjee, wife of Sri Rudra Narayan Ray, daughter of Vishwaranjan Chatterjee, resident of Maluti, P.O. Maluti, P.S. Shikaripara, District Dumka, Jharkhand; and Punya Prasoon Ray, minor son of Sri Rudra Narayan Ray and Smt. Piyali Ray Chatterjee, represented through the opposite party No.2 Piyali Ray Chatterjee, resident of Maluti, P.O. Maluti, P.S. Shikaripara, District Dumka, Jharkhand. Opposite Parties for the petitioner: Mr. Indrajit Sinha, Advocate; Mr. Akhouri Awinash Kumar, Advocate. For the opposite parties No.2 and 3: Mr. Rahul Kumar, Advocate. Civil Appeal on: 04/01/2024. Pronounced on: 22/01/2024., This Criminal Revision has been preferred against the impugned order dated 21 January 2022 passed by the learned Principal Judge of the Family Court, Dumka in Original Maintenance Case No.66 of 2018, whereby the Family Court, Dumka allowed the petition filed on behalf of the opposite parties No.2 and 3 under Section 125 of the Code of Criminal Procedure and directed the petitioner‑husband to pay a sum of Rs.30,000 per month to the opposite party No.2 wife and Rs.15,000 per month to the opposite party No.3 minor son Punya Prasoon Ray with effect from the date of institution of the case., The brief facts leading to this Criminal Revision are that the maintenance application under Section 125 of the Code of Criminal Procedure was filed on behalf of the petitioner Piyali Ray Chatterjee with the allegation that she is legally wedded to Rudra Narayan Ray and her marriage was solemnized on 11 May 2013 at Durgapur according to Hindu rites and rituals and thereafter the marriage was also registered. The couple was blessed with a child, aged four years three months, namely Punya Prasoon Ray. The petitioner was not treated properly after marriage when she went to her in‑laws' house. The mother‑in‑law commented that the father of the petitioner had not given more dowry as her son was a doctor. The respondent and his mother began to create pressure upon the petitioner for a demand of Rs.5 lakh, which mentally shocked the petitioner. The petitioner became pregnant and lived in mental agony, being frustrated about her future. The respondent husband repeatedly told her to go to her father's house and would not allow her to reside with him. Consequently, the petitioner left the in‑laws' house on 09 June 2018 and went to her parental house at Maluti. The respondent along with his mother came to Maluti on 26 August 2018 and quarrelled with the petitioner's father because the demand was not fulfilled, leading to a disturbance witnessed by locals. The respondent husband and his mother fled after allegedly intimidating her. The respondent deserted the petitioner without proper cause. The petitioner has no source of income to maintain herself and her minor child, while the respondent husband has landed property at Bankura and a flat at Kolkata from which he receives Rs.50,000 per month as rent, a salary of Rs.1,50,000, and Rs.2,00,000 per month from a pathology clinic. His mother receives a family pension of Rs.50,000 per month, making the total income of the respondent husband Rs.4,50,000 per month. Accordingly, the petitioner prayed for Rs.40,000 per month for her maintenance and Rs.20,000 per month for maintenance of her son., On behalf of the respondent husband, a written statement was filed stating that the petitioner filed the maintenance application after suppressing material facts. The averments made in paragraphs 2(a), 2(b), 3, 4, 5(a), 5(b) and 5(c) in the maintenance application are denied by the petitioner. It was stated that the respondent is the only male member in his family. His mother, aged 72 years, suffers from serious ailments such as diabetes and hypertension for the last 20 years, and his maternal grandmother, aged about 93 years, is bedridden. After marriage, the respondent was included with them as the exclusive newly married householder. The problem was created by the petitioner from the initial stage after marriage; after entering her matrimonial home, the petitioner showed reluctance and disturbed common responsibilities towards the respondent and the two elderly members. In 2013, the petitioner expressed a declined attitude towards family management. In 2013, the petitioner conceived and, in such condition, wanted to go to her parental home but the mother of the petitioner suggested better management. The petitioner, ignoring the suggestion, wanted to go to the parental home and, subsequently, the respondent was able to bring the petitioner back to Bankura on 19 April 2014 and a male baby was born on 22 May 2014. As some post‑maternity rest was necessary, the respondent was put in full rest in the petitioner’s house as the baby was blessed. The entire family appreciated the incident with satisfaction so no deficiency was allowed towards the respondent or her baby so that the respondent gets early recovery, the baby develops smoothly and no scarcity was allowed on that aspect as the petitioner herself is a medical practitioner (MBBS, DCP, MD). While the post‑maternity management matured, the respondent again started showing a disgusting attitude towards the mother‑in‑law and grandmother‑in‑law and, on that score, the respondent started creating pressure upon the petitioner to alienate the two elderly females from the family and insisted that the petitioner throw the two old female members into a separate residence or an old age home. In such interaction the respondent gradually became obstinate, declaring that if she is not allowed to enjoy a nuclear family and if the petitioner does not comply, she would leave her matrimonial home and proceed to her parental address., As a matter of fact, the petitioner repeatedly tried to convince the respondent about the impossibility of leaving his mother or maternal grandmother as it would be a great sin and derailment from morality and could never bring happiness, but the respondent became arrogant towards the petitioner and the two dependent aged women. Subsequently the respondent’s attitude became aggressive and he started pinching and taunting the petitioner with phrases such as “Biye Korte Geslis Keno Mayer Achol Dhore Thaklei to Partis” and behaved similarly with the mother‑in‑law using intolerable filthy language and with the grandmother‑in‑law saying “Bangal Magi Kuri Bochor Dhore Jamayer Ghore Bose Bose Kachhis Lojjya Korena Tor Moron Nei”. Hearing such words, the petitioner became frustrated and the two aged female members became depressed with mental trauma; the grandmother’s physical and mental condition worsened, and the petitioner became highly depressed, affecting his profession. The petitioner then adamantly went to her parental home to give a lesson to the respondent. On 02 November 2014, the Annaprasan ceremony of the baby was arranged and after hundreds of requests the respondent came on 30 October 2014. The petitioner was in great tension as the invitation was complete but the baby was not present. After the Annaprasan ceremony the petitioner again started creating problems and categorically told the respondent to throw the mother‑in‑law and grandmother out of the house and keep them in a rented house; as this was not done, the petitioner disallowed her mother‑in‑law to touch her baby. When the respondent tried to convince the petitioner not to do such inhuman behaviour, she replied that she would fabricate a false case of physical and mental torture for putting all the matrimonial persons in cage if anything be done against her demand. From July 2015 till she left on 09 June 2018, the petitioner never took breakfast, lunch or dinner with the respondent. She was adamant that until the respondent’s mother and grandmother were thrown out of the house she would not sit at the dining table. She took food in the bedroom, abandoning association with the respondent and other inmates. Every two months, the petitioner went to her paternal home with the child., From December 2017 the petitioner complained of breathing problems and asked the respondent for consultation with a chest specialist. The respondent, already afraid of the petitioner’s attitude, advised her to consult a doctor at Burdwan instead of Bankura. The petitioner’s family used to consult doctors in Burdwan as reflected from the treatment of the petitioner’s father for multidrug‑resistant tuberculosis. The petitioner went twice on that ground till March 2018, with a gap of almost two months. The petitioner intentionally talked with her parental inmates over mobile phone in a loud voice standing on the roadside balcony so that people could listen, with the object to defame the respondent’s family and irritate the respondent’s mother, hoping to put the respondent’s family in jail. In the first week of June 2018, the petitioner gave an ultimatum not to return to her matrimonial home until the elderly female members were thrown out, thereby leaving her matrimonial home from Bankura on 09 June 2018 with the baby and all valuable belongings, also threatening legal action from Rampurhat Court. Thereby, finding no alternative, the respondent filed a Matrimonial Suit No.263 of 2018 at Bankura for judicial separation on 25 July 2018 and, upon receiving the court’s notice, the petitioner repeatedly attempted to harass the respondent by frequent calls through Dumka Police. The petitioner instituted this case for maintenance which she could have prayed before the Bankura Court under Section 24 of the Hindu Marriage Act, although there was no necessity as the respondent severally sent monetary assistance to the petitioner, which was willfully refused each time. There was never any negligence on the part of the respondent; yet the petitioner left her matrimonial home on 09 June 2018 of her own volition. The petitioner is highly educated and wants to lead her life as per her own choice, thereby instituting this case with mala fide exaggeration about her need and the ability of the respondent only for the purpose of leading a luxurious life in ultra‑modern means. The prayer of the petitioner does not match the law as she has every ability to earn, yet the respondent intends to look after the basic needs of his spouse and child, but the petitioner’s only intention is to put the respondent in hardship and harassment., On behalf of the petitioner, oral evidence examined P.W.‑1 Piyali Ray Chatterjee; P.W.‑2 Bishwaranjan Chatterjee; P.W.‑3 Santosh Thakur; and P.W.‑4 Debranjan Chatterjee, and documentary evidence filed the certified copy of the original petition of Matrimonial Suit No.263 of 2018 in the District Court, Bankura., On behalf of the respondent, oral evidence examined R.W.‑1 Nandopaul Pandey; R.W.‑2 Nimai Chandra Ghoshal; and R.W.‑3 Rudra Narayan Ray. Documentary evidence filed by the respondent included a salary slip for July‑August 2021 marked as Exhibit A and A/1, an income tax return for the year 2020‑2021 marked as Exhibit B, a bank account statement in eight pages marked as Exhibit C, a photocopy of the receipt of school fee of Punya Prasoon Ray marked as Exhibit D (pages D/1 to D/2), a xerox copy of the order of the Civil Judge (Additional Court), Bankura in an informatory petition dated 04 September 2021 marked as Exhibit E, and a xerox paper of the order passed by the Honourable Apex Court in petition(s) for Special Leave to Appeal (Criminal) No.5025 of 2019 marked as Exhibit F., The learned Principal Judge of the Family Court, Dumka, after hearing the rival submissions of the parties, passed the impugned judgment on 21 January 2022, whereby the maintenance application was allowed. The respondent Rudra Narayan Ray was directed to pay Rs.30,000 per month to his wife Piyali Ray Chatterjee and Rs.15,000 per month to the minor son Punya Prasoon Ray since 10 September 2018. The arrears amount was directed to be paid in twelve equal installments per month from the date of the order, failing which the amount would be realized from the respondent through the process of law., Aggrieved by the impugned judgment, the instant Criminal Revision has been filed on behalf of the petitioner Rudra Narayan Ray on the ground that the order passed by the Family Court, Dumka is contrary to law. The Family Court, Dumka failed to consider the conduct of the opposite party No.1 Piyali Ray Chatterjee and did not take into consideration that the opposite party No.1 had been receiving maintenance under two different provisions, Section 125 of the Code of Criminal Procedure and Section 24 of the Hindu Marriage Act. In view of the above, the petitioner prays to allow this Criminal Revision and set aside the impugned judgment., The learned counsel for the petitioner and the learned counsel for the opposite parties No.1 and 2 have been heard and the materials available on record have been perused., For disposal of this Criminal Revision, the following points of determination are framed: Whether the opposite party No.1 wife has refused to live with her husband without sufficient cause, and if so, what is the effect? Whether the quantum of maintenance awarded by the Family Court, Dumka for the opposite party No.1 wife and her son is disproportionate in view of the income and liability of the petitioner husband?, On the first point of determination, the learned counsel for the petitioner submitted that the opposite party No.1 wife has declined to serve the elderly mother and maternal grandmother of the petitioner husband. She also insisted on living separately from his mother and maternal grandmother, which was not agreed by the petitioner. Consequently, she created a strained atmosphere in the family, willingly left the matrimonial house and went to her parental house with her son. The petitioner made efforts to bring her back, but she refused, and ultimately the petitioner filed a suit under Section 10 of the Hindu Marriage Act for judicial separation to restore peace in the family., Per contra, the learned counsel for the opposite party No.1 wife contended that she never declined to serve the elderly mother‑in‑law and maternal grandmother‑in‑law. She was taunted for a dowry demand of Rs.5 lakh, and for non‑fulfilment she was tortured, harassed and compelled to leave the matrimonial house. Since June 2018, she has been residing at her parental house with the child; she also filed a case under Section 498‑A of the Indian Penal Code against her husband, for which bail was granted to him. Therefore, the wife is not residing separately from her husband without sufficient reason., P.W.‑1 Piyali Ray Chatterjee, in her examination‑in‑chief, states that she was married to Rudra Narayan Ray on 11 May 2013 according to Hindu rites and rituals. After marriage she went to her in‑laws’ house and resided there for five years and two months. A son, Punya Prasoon Ray, was born and is now four years seven months old. Even after marriage, her mother‑in‑law, husband and maternal grandmother‑in‑law began to harass her and compelled her to leave the matrimonial home on 09 June 2018, taking the child with her. On 26 August 2018 her husband came to her parental house and demanded Rs.5 lakh, leading to a quarrel. When a disturbance arose, they fled after allegedly intimidating her criminally. Her husband has also filed a suit for judicial separation. He is an Assistant Professor in Sammelani Medical College, Pathology Department, Bakula. On the ground floor there is a pathology lab in the name of his father, who died in 2008. He also has a flat in Kolkata from which Rs.50,000 per month rent is received. After his father’s death, his mother receives a family pension of Rs.50,000 per month. He receives a salary of Rs.1,50,000 per month and income of Rs.2 lakh from the pathology clinic, totaling Rs.4,50,000 per month. The witness states that her mother‑in‑law is 70 years old and her maternal grandmother‑in‑law is 94 years old, and that her husband looks after them. She lived in the matrimonial house until 09 June 2018 and thereafter has been residing at her parental house. She says she did not leave of her own volition; rather she wants to live with her husband if he agrees. She has filed a case under Section 498‑A of the Indian Penal Code and also for maintenance against her husband, after the filing of the suit under Section 10 of the Hindu Marriage Act for judicial separation by her husband. In that case she also filed an application for maintenance under Section 24 of the Hindu Marriage Act. She holds an M.Sc in Zoology but does not work. It is incorrect to say that she does not want to serve her mother‑in‑law and maternal grandmother‑in‑law, that she misbehaved with them, or that she did not go to her in‑laws’ house even after repeated requests by her husband; ultimately the husband filed the suit for judicial separation., P.W.‑2 Bishwaranjan Chatterjee, in his examination‑in‑chief, states that Piyali Ray Chatterjee is his daughter. His daughter lived in her matrimonial house for five years tolerating the tortures and has a son aged about four years seven months, namely Punya Prasoon Ray. She was compelled to leave the matrimonial house. Her husband is an Assistant Professor who receives a salary of Rs.1,50,000 per month. He also runs a pathology lab in the name of Dr. Basant Rai and has a flat in Kolkata. The mother of his son‑in‑law also receives a pension. The total income of his son‑in‑law is Rs.4‑5 lakh per month. His son‑in‑law made a demand of Rs.1 lakh. In cross‑examination, the witness says it is wrong to say that his daughter does not want to serve her mother‑in‑law and maternal grandmother‑in‑law, and it is also wrong to say that she left the matrimonial house of her own volition., P.W.‑3 Santosh Thakur, in his examination‑in‑chief, states that he is a friend of the brother of Piyali Ray Chatterjee. He has visited the in‑laws’ house of Piyali Ray Chatterjee. Dr. Rudra Narayan Ray runs a pathology clinic at his house and is a doctor. Piyali Ray Chatterjee does nothing., P.W.‑4 Debranjan Chatterjee, in his examination‑in‑chief, states that Piyali Ray Chatterjee is his sister. She has been residing in the parental house at Maluti since June 2018. She does nothing. She lived in her maternal house for five years and occasionally visited the parental house. Piyali Ray Chatterjee holds an M.Sc in Zoology but does not work because her husband does not like her to work. It is incorrect to say that his sister does not want to serve the elderly mother‑in‑law and maternal grandmother‑in‑law., R.W.‑1 Nandopaul Pandey, in his examination‑in‑chief, states that he knows Rudra Narayan Ray and that his mother and maternal grandmother, aged 75 and 95 respectively, are alive and both reside with Rudra Narayan Ray. He says the wife of Rudra Narayan did not look after her mother‑in‑law and maternal grandmother‑in‑law. On this issue a dispute arose between Rudra Narayan Ray and his wife, who left the matrimonial home of her own volition. In cross‑examination, the witness says that Piyali Ray Chatterjee had asked Rudra Narayan to live separately from his mother and maternal grandmother, leading to the dispute. He adds that it is wrong to say that dowry was demanded and that Piyali Ray Chatterjee was tortured for the same., R.W.‑2 Nimai Chandra Ghoshal, in his examination‑in‑chief, states that he knows Rudra Narayan Ray. His mother is 73 years old and his maternal grandmother is 93 years old, and Rudra Narayan Ray looks after them. He says Piyali Ray Chatterjee does not want to live with him and does not want to serve her elderly mother‑in‑law and maternal grandmother‑in‑law. She wanted to live separately and left the matrimonial home of her own will. In cross‑examination, the witness says that Piyali Ray Chatterjee does not want to serve her mother‑in‑law and maternal grandmother‑in‑law, and that he knows this because he usually goes to the house of Dr. Rudra Narayan Ray., R.W.‑3 Rudra Narayan Ray, in his examination‑in‑chief, states that his wife left the matrimonial home on 09 June 2018 of her own will without any reasonable cause. He says she left due to his alleged unbearable cruel behaviour and an unreasonable demand for a nuclear family, abandoning the elderly and ailing 72‑year‑old mother‑in‑law and 94‑year‑old maternal grandmother‑in‑law. He made several attempts to make her understand, but all efforts were futile, leading him to file a suit under Section 10 of the Hindu Marriage Act for judicial separation. To protect herself, his wife filed a case under Section 498‑A of the Indian Penal Code against him and his mother‑in‑law, for which anticipatory bail was granted by the Honourable High Court of Jharkhand at Ranchi and the Honourable Supreme Court. His wife is a postgraduate in Zoology. He receives a salary of Rs.68,000 per month and does not have the income of Rs.4,50,000 per month. He has no personal clinic or private practice other than his service; his only source of income is his salary. In cross‑examination, he says he has filed a suit for judicial separation against his wife. His son is six years old and resides with his mother. He is a pathologist and Assistant Professor in the Department of Pathology, Sammelani Medical College, Bankura. His son studies in Class I. The clinic, originally in his father’s name, is now run by his mother. His house is three‑storeyed. His wife resided with him for five years. He says his wife did not care for him; he made efforts to resolve the dispute three to four times. It is incorrect to say that he physically or mentally tortured his wife. The flat in Kolkata is in his father’s name, with shares of his mother and sister; the flat is vacant. It is also incorrect to say that he earns Rs.4,50,000 per month., From the evidence adduced on behalf of both parties, it is found that the wife left the matrimonial house on 09 June 2018 of her own will. P.W.‑1 Piyali Ray Chatterjee says she was tortured for a dowry demand of Rs.5 lakh, which led her to leave the matrimonial house. P.W.‑2 Bishwaranjan Chatterjee, the father of Piyali Ray Chatterjee, says a demand of Rs.1 lakh was made by his son‑in‑law and his mother, and that his daughter was tortured and ousted. P.W.‑3 Santosh Thakur does not mention any torture of Piyali Ray Chatterjee for any demand. P.W.‑4 Debranjan Chatterjee, the brother of Piyali Ray Chatterjee, states that his sister remained well for five years in her matrimonial home and does not say she was tortured for any dowry demand during those five years; he notes that after August 2018 a demand for money was made., Piyali Ray Chatterjee has also filed a case under Section 498‑A of the Indian Penal Code against her husband and mother‑in‑law. This case was filed after the suit by Rudra Narayan Ray under Section 10 of the Hindu Marriage Act for judicial separation., R.W.‑1 Nandopaul Pandey, a neighbour of Rudra Narayan Ray, was examined in oral evidence. He stated that he has visiting rights to the house of Rudra Narayan Ray and personally knows that the wife, Piyali Ray Chatterjee, did not want to serve her elderly mother‑in‑law and maternal grandmother‑in‑law, aged about 75 and 95 years respectively. She created pressure on her husband to reside separately from them and willingly left the matrimonial home. R.W.‑2 Nimai Chandra Ghoshal, also a neighbour of Dr. Rudra Narayan Ray, said that he has visiting rights to the house and knows that Piyali Ray Chatterjee did not wish to serve her elderly mother‑in‑law and maternal grandmother‑in‑law. She asked her husband to live separately; when this was not agreed, she left the matrimonial house of her own will in June 2018., R.W.‑3 Rudra Narayan Ray, in his examination‑in‑chief, states that his wife did not want to serve his 75‑year‑old mother and 95‑year‑old maternal grandmother‑in‑law. She flatly refused despite his best efforts to make her understand and created pressure on him to live separately from them, which he did not agree to. Consequently, he fell into mental depression. Even after the son was born, the wife went to her parental house with the child and did not permit his mother‑in‑law and maternal grandmother‑in‑law to touch the son; she also did not share dinner with them. She continued to create pressure to live separately and was unwilling to serve his mother and maternal grandmother‑in‑law. Ultimately, he filed a suit for judicial separation., From the oral evidence adduced on behalf of both parties, it is proved that the wife left the matrimonial house of her own will, and the only reason was that she did not want to serve her elderly mother‑in‑law and maternal grandmother‑in‑law, creating pressure on her husband to live separately, which he did not agree to. This fact is supported by the testimony of R.W.‑3 Rudra Narayan Ray as well as R.W.‑1 Nandopaul Pandey and R.W.‑2 Nimai Chandra Ghoshal, neighbours residing in the same locality as Dr. Rudra Narayan Ray. Conversely, the allegations of dowry demand are contradicted by the statements of the witnesses of Piyali Ray Chatterjee. Piyali Ray Chatterjee says a dowry demand of Rs.5 lakh was made; her father says a demand of Rs.1 lakh was made; her brother says no demand was made for five years and only after August 2018 a demand was made. The independent witness says nothing regarding any dowry demand or torture. The case under Section 498‑A of the Indian Penal Code was filed just after the suit by her husband Rudra Narayan Ray under Section 10 of the Hindu Marriage Act for judicial separation, indicating that the case was filed as a counter‑blasting measure to teach a lesson to her husband.
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The intent of Rudra Narayan Ray is also apparent that he has filed the suit for judicial separation, not for divorce, because he wanted to keep his wife with him but she was adamant to live separately without any reasonable cause in her parental house., From perusal of the petition under Section 10 of the Hindu Marriage Act for judicial separation, it is found that Rudra Narayan Ray has filed the same on the very ground that his wife did not like to serve his mother and maternal grandmother, who are old‑aged and she used to create pressure upon him to live separate from them. There is no contradiction in the grounds, which were in the case of judicial separation and the defence, which is taken by Rudra Narayan Ray in the maintenance case. As such, it is proved that the wife of the petitioner has been residing separate without any sufficient cause from her husband., Supreme Court of India in the case of Narendra Vs. K. Meena reported in (2016) 2 CLR 947 (SC) held that persistent effort of the wife to constrain her husband to be separated from the family constitute an act of cruelty. Paragraph No.11 reads as under: The Respondent wife wanted the Appellant to get separated from his family. The evidence shows that the family was virtually maintained from the income of the Appellant husband. It is not a common practice or desirable culture for a Hindu son in India to get separated from the parents upon getting married at the instance of the wife, especially when the son is the only earning member in the family. A son, brought up and given education by his parents, has a moral and legal obligation to take care and maintain the parents, when they become old and when they have either no income or have a meagre income. In India, generally people do not subscribe to the western thought, where, upon getting married or attaining majority, the son gets separated from the family. In normal circumstances, a wife is expected to be with the family of the husband after the marriage. She becomes integral to and forms part of the family of the husband and normally without any justifiable strong reason, she would never insist that her husband should get separated from the family and live only with her. In the instant case, upon appreciation of the evidence, the trial Court came to the conclusion that merely for monetary considerations, the Respondent wife wanted to get her husband separated from his family. The averment of the Respondent was to the effect that the income of the Appellant was also spent for maintaining his family. The said grievance of the Respondent is absolutely unjustified. A son maintaining his parents is absolutely normal in Indian culture and ethos. There is no other reason for which the Respondent wanted the Appellant to be separated from the family – the sole reason was to enjoy the income of the Appellant. Unfortunately, the High Court considered this to be a justifiable reason. In the opinion of the High Court, the wife had a legitimate expectation to see that the income of her husband is used for her and not for the family members of the Respondent husband. We do not see any reason to justify the said view of the High Court. As stated hereinabove, in a Hindu society, it is a pious obligation of the son to maintain the parents. If a wife makes an attempt to deviate from the normal practice and normal custom of the society, she must have some justifiable reason for that and in this case, we do not find any justifiable reason, except monetary consideration of the Respondent wife. In our opinion, normally, no husband would tolerate this and no son would like to be separated from his old parents and other family members, who are also dependent upon his income. The persistent effort of the Respondent wife to constrain the Appellant to be separated from the family would be torturous for the husband and in our opinion, the trial Court was right when it came to the conclusion that this constitutes an act of cruelty., Herein, it would be pertinent to quote the relevant text of Introduction of Family Life Education written by Prof. Teresa Chacko, Cochin, page No.71 to 85 read as under: Role Expectations in Marital Life Shakespeare wrote that the world is a stage upon which men and women are acting out the drama of life. The same thing can be said of marriages. There are many cultural and social expectations about appropriate behaviour for males and females. The goals, purposes and functions in marriage can be achieved only when each family member plays his or her particular role. The industrial revolution, emancipation of women, urbanisation, employment of women, preoccupation of men with career etc. are some factors which have left their imprint upon family roles. Leadership role: The man is also entrusted with the role of leader and supervisor of all family endeavours. For the child, his/her first heroes will be his/her own parents, particularly the father who holds the position of authority in the family. Role as a husband: As a husband he has the role of sex partner, companion, confidant, decision maker and accountant. He must train himself to be a better observer so that he can be of great help to his wife. He must notice his wife and praise her performance and ability. He should also give emotional support to her. Traditional roles: The woman is biologically, psychologically and emotionally prepared for motherhood. She is trained to carry out the roles of birth, nurture, protection, gratification and giving comfort to children and men. In the life of woman, these functions are given priority over all other engagements. According to the traditional role expectations, she is oriented towards rearing capable children, helping her husband to achieve the goals of the family and being useful to the community in which she lives. But are all women satisfied with this role concept? Talented and ambitious women, in addition to these functions, want to develop their special aptitudes. Role as wife: As a wife, she is expected to be an affectionate companion, a good sex partner, confidant and social secretary of her husband. She has to take charge of the social life of the couple. She should develop interest in her husband’s work. She should be able to understand his world of activities. Moreover, she should be able to give intellectual companionship to her husband. Reasons for Role Changes Today family roles are changing largely because they have become less appropriate for the social and economic realities of the modern world. Most of the families are small in size and more women are employed. We can see changes in the styles of femininity as well as masculinity. The man is not maintaining the image of the brave, strong, tough, aggressive male of the past. The gentle, passive, submissive female is a character of yesterday. Opportunities are open for both sexes in education, work and family life. So greater flexibility is required in the role expectations of husbands and wives. Woman’s expectations of man’s role A woman still expects many of these traits in a man. Many women still want the male to be strong and at times they want to depend upon males. They still admire and feel safe with a strong male. The man has to exhibit some courage and strength to meet the role expectations of his wife. What do husbands expect from the wife? The wife should become the companion of the husband. She is expected to give love and affection to him. He expects an equal sharing of responsibilities. He expects cooperation, support and recognition for his efforts. Reasons for Role Conflicts No two persons are exactly alike. There are differences in attitudes, behaviour and beliefs. Husbands and wives gather different role concepts from their families. For success in marriage, each one has to produce in his/her personality some resemblance of the partner’s image of a man/woman. They have to change their values, attitudes and behaviour to fit in with the new role concepts. Role conflicts are brought about by the strain put upon the wife in meeting the role expectations of her husband and his family and in adapting to the demands of his work. The husband also faces problems when his wife is having an established role in her life. How can we resolve role conflicts? In marriage, spouses are involved in the lives of each other. Hence disagreement in some areas is inevitable. How couple manage conflicts is more important. Conflict Management There are many ways in which conflicts can be managed by the couple. In the first method, compatibility can be achieved when one partner is dominant and he/she attempts to get the other person comply with his/her desires and the partner agrees and accepts the complementary role. But when the disagreement is very strong and both partners are not willing to give in, tension is intensified. They may emotionally withdraw from each other’s relationships without finding out an actual solution for the problem. Personality factors in relation to role expectation Success in marriage can be attained when the couple respects the characteristic qualities which nature has given to each of them and when they adhere to their respective roles. Relations with in‑laws Marriage joins not only the man and woman together, but their families also. Hence, in‑laws are the new relatives acquired through marriage. You may wonder whether in‑laws are bringing problems to every marriage. The relationship with in‑laws may bring about problems in some marriages. The circumstance in which each person lives is different. If the son‑in‑law or daughter‑in‑law fits in with the expectations of the respective family he/she will be accepted easily. Otherwise, problems may arise., In view of the above in the case in hand, the issue between the husband and wife is that the wife does not agree to serve the old‑aged mother‑in‑law and maternal grandmother‑in‑law, who are respectively 75 years and 95 years old. She creates pressure upon her husband to live separate from his mother and maternal grandmother. It is the very reason; this ground is not found sufficient, which is why the legislature while enacting Section 125(4) of the Code of Criminal Procedure has provided one of the grounds for denial of maintenance, if a wife refuses to reside with the husband without any reasonable cause., In the Constitution of India under Article 51‑A of Part IV‑A, wherein the fundamental duties of the citizen of India are enumerated in Clause (f), it is provided to value and preserve the rich heritage of our composite culture. It is the culture in India to serve the old‑aged mother‑in‑law or grandmother‑in‑law as the case may be by the wife in order to preserve this culture. It was obligatory on the part of the wife to serve her husband’s mother and maternal grandmother and not to insist on unreasonable demand to live separate from his old‑aged mother‑in‑law and the maternal grandmother‑in‑law. Accordingly, the point of determination No.1 is decided in favour of the petitioner‑husband and against the opposite party No.1‑wife., Herein, it would be pertinent to quote the lines of Yajurveda, which read as under: O woman you do not deserve to be defeated by challenges. You can defeat the mightiest challenge. Defeat the enemies and their armies you have valour of thousand. (Yajurveda 13/26), Herein, it would also be pertinent to quote the lines of Rigveda: O brilliant woman, remove ignorance with your bright intellect and provide bliss to all. (Rigveda 4/14/3), Herein, it would also be pertinent to quote the lines of Manu: Where the women of the family are miserable, the family is soon destroyed, but it always thrives where the women are contented. (Manusmriti 3:57), Herein, it would also be pertinent to quote the lines of Brihat Samhita: In no world has Brahma created a gem superior to woman (stri), whose speech, sight, touch, thought, provoke pleasurable sensations. Such a gem in the shape of a woman is the fruit of a person’s good deeds, and from such a gem a person obtains both sons and pleasure. A woman, therefore, resembles the goddess of wealth in a family, and must be treated with respect, and all her wants must be satisfied. (Brihat Samhita 73:4), In addition herein, the learned District Court expects from both the parties to resolve their differences as stated hereinabove and live together for the welfare of the son by adducing a settlement in judicial separation proceeding under Section 10 of the Hindu Marriage Act pending between them., On the second point of determination, i.e., whether the quantum of maintenance awarded by the learned District Court below for the opposite party wife and her son is disproportionate in view of the income and the liability of the petitioner‑husband, it has been stated that her husband is an Assistant Professor in Bankura Sammelani Medical College, Pathology Department and he is getting a salary of Rs.1,50,000 per month. A pathology clinic is also being run by the father of her husband, from which there is income of Rs.2,00,000 per month. Rs.50,000 is received from the flat situated in Kolkata, which has been given on rent. Her mother‑in‑law also gets Rs.50,000 per month family pension; therefore, total income is shown as Rs.4,50,000. On this very issue, she has examined as P.W.-1, Piyali Ray Chatterjee, P.W.-2, Bishwa Ranjan Chatterjee, her father and P.W.-3, Santosh Thakur and independent witness P.W.-4, Debranjan Chatterjee, her brother, who have also corroborated this averment., To the contrary, the husband Rudra Narayan Ray has stated in his pleadings that he has no source of income except the salary as an Assistant Professor, from which he is getting Rs.68,900 but in his statement R.W.-3, Rudra Narayan Ray has admitted that he is a pathologist doctor in Bankura Sammelani Medical College, pathology department. His father was also a doctor. He is getting salary of Rs.68,900. The pathology clinic is being run by his mother. He also admits that he has a flat in Kolkata but the same was in the name of his father, mother and sister, who have vested right and the same is vacant. He also admits that his mother gets family pension. The fact of the salary being in particular knowledge of the husband in order to prove the same fact of income, he has filed the salary slip marked as Exhibit‑A and A/1. From perusal of the same, the net salary is Rs.68,565 after all reduction. The income tax return is also marked as Exhibit‑B., In view of the evidence adduced oral as well as documentary, the husband is found to have sufficient means. His salary is Rs.68,565 per month, this is his personal income, but the income of the family is also from the pathological clinic and his mother also gets family pension. In view of the above, the learned District Court below had directed the petitioner Rudra Narayan Ray to pay Rs.15,000 per month for the minor son from the date of application i.e. 10.09.2018 and Rs.30,000 per month to the wife Piyali Ray Chatterjee., In view of the disposal of point of determination No.1, the wife is not entitled to any amount of maintenance. Herein, only the amount awarded for maintenance to the son is to be considered whether the same is proportionate in view of the income of the petitioner Rudra Narayan Ray. It would be pertinent to mention that in the proceeding under Section 10 of the Hindu Marriage Act for judicial separation, the wife has also filed a maintenance application under Section 24 of the Hindu Marriage Act. On behalf of the petitioner‑husband in the Criminal Revision, the photocopy of order dated 30.04.2021 passed in J. Misc. No.6030 of 2018, in which the proceeding under Section 24 read with Section 26 of the Hindu Marriage Act, 1955 was allowed by the learned Additional District Judge (Redesignated Court), Bankura, has also directed the husband to pay the maintenance amount of Rs.25,000 per month to his wife and Rs.5,000 per month for the minor son since the date of application i.e. 24.12.2018. In view of this order, it is also evident that the petitioner Rudra Narayan Ray has also been paying Rs.5,000 per month to the son in the proceeding under Section 26 of the Hindu Marriage Act in compliance of the order dated 30.04.2021 passed by the learned Additional District Judge (Redesignated Court), Bankura. Taking into consideration the financial means of the petitioner Rudra Narayan Ray, it will be appropriate herein to enhance the amount of maintenance for the son from Rs.15,000 per month to Rs.25,000 per month. Accordingly, this point of determination is also disposed of as stated hereinabove., In view of the above, the impugned order passed by the learned District Court below needs interference and this Criminal Revision deserves to be partly allowed., With the aforesaid observations and directions, this Criminal Revision is hereby partly allowed and the impugned order passed by the learned District Court below is set aside up to the extent of awarding maintenance to the wife; while the impugned judgment is modified increasing the maintenance amount for the minor son from Rs.15,000 per month to Rs.25,000 per month., Let a copy of this order be communicated to the learned District Court concerned through fax.
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Decided on 31st January 2024. Through: Mr Keshav Thakur, Mr Mahesh Prasad, Ms Malak Mathur, Mr Prithvi Thakur and Mr Ritik Kumar, Advocates, for the petitioner. Through: Mr R K Aggarwal, Ms Ayushi Bansal and Mr Vinay Padam, Advocates, for the respondent. Interim Application 14398/2023 (for exemption) – exemption allowed, subject to all just exceptions. The application stands disposed of., Interim Application 14399/2023 (for condonation of delay). The petitioner seeks condonation of a delay of 25 days in filing the petition. Although not mentioned in the application, the record shows that a scanned copy of the award was received by the petitioner by an email of the Legal Officer of National Internet Exchange of India dated 06.04.2023. The period of three months for filing of the petition, provided under Section 34(3) of the Arbitration and Conciliation Act 1996, thus lapsed on 06.07.2023. The petition, filed on 28.07.2023, was thus belated by approximately 22 days, which is within the maximum condonable period of 30 days under the proviso to Section 34(3) of the Act. The ground mentioned in the application is that the petitioner is based in a remote area of Kashmir and had to travel to Delhi to engage counsel. As the delay is within the maximum condonable period, the application is allowed for the reasons stated, in the interest of justice., By way of this petition under Section 34 of the Arbitration and Conciliation Act, the petitioner assails an arbitral award dated 04.04.2023 under the IN Domain Name Dispute Resolution Policy (INDRP). By the impugned award, the learned arbitrator directed that a domain name registered by the petitioner, kashmirharvard.edu.in, be transferred to the complainant/respondent, being the President and Fellows of Harvard College in the United States of America., The petitioner imparts school education from pre‑Nursery to class XII in the name and style of Kashmir Harvard Educational Institute in Srinagar, Union Territory of Jammu and Kashmir. It has registered a domain name with the .in domain name registry being kashmirharvard.edu.in (the disputed domain name)., On 16.11.2022, the respondent submitted a complaint to National Internet Exchange of India under the INDRP, seeking cancellation of the disputed domain name or transfer thereof to the respondent. It was stated that the respondent is a charitable and educational corporation incorporated in the Commonwealth of Massachusetts, United States of America. It was established in the year 1636 and is the oldest education institution in the United States. It claims to have used the HARVARD mark since 1638 in connection with educational and research goods and services offered by it. It imparts undergraduate education through Harvard College and also comprises various schools of higher education, such as Harvard Law School, Harvard Medical School and Harvard Business School., The respondent claims a worldwide reputation as an educational institution. The complaint asserts that 30 of its graduates have been Heads of State of various countries, including eight Presidents of the United States, and its faculty has included 50 Nobel Prize awardees. Its student body includes 10,000 students from 15 countries. Harvard University is consistently ranked amongst the top universities in the United States and globally. The complaint traces the links of Harvard University with India, including successful alumni, a Harvard Alumni Club and research and services conducted in India by its scholars., It is also mentioned in the complaint that Harvard has established a Harvard trademark programme, under which it enforces and licenses its trademarks described as the HARVARD Marks. It also has online learning services under the name HarvardX. It operates a website ard.edu and social media accounts which include the name Harvard. Several of its trademarks are registered in India, and a list has been provided in the complaint as follows: Registration No. Trademark Class 1241786 Harvard Medical 42 International & Line Design (logo); 1241787 Harvard Medical International & Line Design (logo) 41; 1221606 Harvard Medical International & Line Design (logo) 16; 1378489 Harvard Graphics 09; 1493805 Harvard Business School Publishing House 16; 1493806 Harvard Business Review South Asia 16; 1493805 Harvard Veritas Shield 14, 16, 18; 1302475 Harvard Veritas Shield Design 41; 1594962 Harvard 28; 1426603 and 1426604 Harvard Dental International 41 and 42., As far as the Harvard trademark is concerned, it is stated that several authorities in different countries have designated Harvard as a famous and well‑known trademark, and that the respondent has successfully taken several actions with regard to infringement of its marks in India and overseas. The respondent sought cancellation of the disputed domain name, or transfer of the domain to itself, on the ground that it is identical or confusingly similar to a trademark or service mark in which it has a right, that the petitioner was ineligible for rights or legitimate interest in respect to the domain name, and that the impugned domain name has been registered or used in bad faith., As a contention has been raised in the course of arguments with regard to procedural irregularities in the conduct of the arbitrator, the facts relating thereto are set out later in the judgment., All the respondent’s contentions have been upheld in the impugned award, which has found that the disputed name is identical to the trademark Harvard and causes confusion with the petitioner’s trademark, that the respondent has no right or legitimate interest in the disputed domain name, and that the domain name is registered in bad faith., The parties were thereafter informed by email dated 06.04.2023 that the award had been passed, and a copy of the award was also transmitted to them by email., Dear Legal Officer, Thank you for bringing to my attention the concerns raised by the fellows of Harvard College regarding my use of the term Harvard in my domain name, kashmirharvard.edu.in. I would like to clarify that I am not affiliated with Harvard College, nor am I pretending to be associated with the institution in any way and would like to add that the Kashmir Harvard school is in no way comparable to Harvard College. We are a small educational institution located in Kashmir, India, and we do not claim to have the same academic standing or reputation as Harvard College. I understand that Harvard College has a reputation for excellence and academic rigor, and I have the utmost respect for the institution and its community. However, I would like to emphasize that my domain name is simply a combination of the name of my school and the term Harvard, which I intended to use as a descriptive term to denote the quality of education provided by my institution. I would like to assure you that I have no intention of causing any confusion or misrepresentation regarding my affiliation with Harvard College. In fact, I have already taken steps to make it clear on my website that I am an independent educational institution and not associated with Harvard College in any way. Once again, I apologize for any inconvenience or confusion that my use of the term Harvard may have caused. Please let me know if there are any further steps that I can take to address the concerns of the fellows of Harvard College. Sincerely, Arshid Ahmad, IT Head, Kashmir Harvard Educational Institute., Before addressing the grounds upon which the award has been challenged, it may be noted that the respondent is an entity incorporated outside India. The present arbitration therefore falls in the category of international commercial arbitration under Section 2(1)(f) of the Arbitration and Conciliation Act. Consequently, the grounds of challenge available to the petitioner are only those enumerated in Section 34(2) of the Act, and the ground of patent illegality referred to in Section 34(2A) of the Act is not applicable., Section 34(2) of the Act provides: An arbitral award may be set aside by the Supreme Court of India only if (a) the party making the application establishes on the basis of the record of the arbitral tribunal that (i) a party was under some incapacity, or (ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or (iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or (iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or (v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Part; or (b) the Supreme Court of India finds that (i) the subject‑matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or (ii) the arbitral award is in conflict with the public policy of India. Explanation: For the avoidance of doubt, an award is in conflict with the public policy of India only if (i) the making of the award was induced or affected by fraud or corruption or was in violation of Section 75 or Section 81; or (ii) it is in contravention with the fundamental policy of Indian law; or (iii) it is in conflict with the most basic notions of morality or justice. Explanation 2: The test as to whether there is a contravention with the fundamental policy of Indian law shall not entail a review on the merits of the dispute., Mr Keshav Thakur, learned counsel for the petitioner, confined his argument to a challenge on the ground of natural justice under Section 34(2)(a)(iii) and conflict with public policy of India under Section 34(2)(b)(ii). In support of his contention based on Section 34(2)(a)(iii), Mr Thakur submitted that (a) the physical address of the petitioner has been wrongly written in the impugned award as Kashmir Harvard Educational Institute, 4RVH+4QV, Habak, Naseem Bagh, Srinagar, Jammu and Kashmir 190023, whereas the address given by the petitioner in the Domain Name Information Form was Kashmir Harvard Educational Institute, Habbak Naseem Bagh, Srinagar‑190006; (b) the notice of arbitration was never received by the petitioner; (c) the email address of the technical person responsible for the domain name was wrongly recorded in the award as arshid.ahma@kashmirharvard.org instead of arshid.ahmad@kashmirharvard.org; (d) emails addressed to the petitioner did not reach due to internet shutdowns on account of security considerations and severe weather conditions; (e) relying upon the judgment of this Court in Mittal Pigments Pvt Ltd v Gail Gas Limited, Mr Thakur submitted that a further pre‑emptory notice ought to have been given to the petitioner before proceeding ex‑parte against it., With regard to Section 34(2)(b)(ii), Mr Thakur raised two submissions: (a) the impugned award does not specify the disputed domain name in the Discussion and Findings section; (b) the respondent’s domain name is not a .in or .bharat domain name, and the present dispute therefore does not fall within the scope of arbitration under the INDRP., The Supreme Court of India, after examining the record, finds that the petitioner has failed to make out a case of breach of the principles of natural justice for the following reasons: (a) the petitioner has referred to communications dated 08.02.2023, 09.02.2023, 27.02.2023 and 06.04.2023 without any qualification as to alleged non‑receipt, and copies of these communications have been annexed to the petition, showing that the petitioner received notice of appointment of the arbitrator, commencement of proceedings, notice of proposed ex‑parte proceeding and the award itself; (b) even in the petitioner’s communication dated 08.04.2023 there is no suggestion that the petitioner did not have notice of the arbitral proceedings; (c) the allegation in the synopsis that emails dated 08.02.2023, 09.02.2023 and 27.02.2023 were not received is inconsistent with the petitioner’s own communication and appears to be an attempt to mislead the Supreme Court of India; (d) the claim that the address of the petitioner’s physical location as stated in the award is incorrect is a red herring, as the petitioner has admitted receipt of the award by speed post; (e) the contention that the email address of the technical person, Arshid Ahmad, as stated in the award was incorrect is immaterial, because the award was properly forwarded to at least one of the email addresses provided and Mr Arshid Ahmad responded on behalf of the petitioner; (f) service of communications and the award were effected at the email address mentioned in the domain registration information, satisfying the requirement of electronic service under Clause 2(a) of the INDRP Rules of Procedure; (g) the argument that an internet shutdown in Jammu and Kashmir prevented receipt of emails is not mentioned in the petition and is unsupported by evidence; (h) the reliance on the judgment in Mittal Pigments is misplaced, as the facts of that case differ and the learned arbitrator in the present case did give notice of intention to proceed ex‑parte., The grounds taken by the petitioner based upon public policy are also untenable. The purpose and object of the INDRP, as set out in Clause 2 and Clause 16, is to provide a legal framework for resolution of disputes between a domain name registrant and the complainant arising out of the registration and use of an .in or .bharat domain name. The petitioner’s domain name falls within this category, and there is no requirement that the complainant must also have a .in or .bharat domain name. The dispute is clearly in connection with an .in domain name. The petitioner’s plea that the disputed domain name ought to have been set out in full in the Discussion and Findings section of the award is rejected, as the award clearly states the disputed domain name in the heading and defines it in paragraph 2., For the foregoing reasons, the Supreme Court of India finds no grounds to hold that the impugned award is contrary to Section 34(2) of the Arbitration and Conciliation Act. The arguments advanced by the petitioner show a scant regard for the limited scope of intervention in an international commercial arbitration and for the process of the Court. The petition, along with pending applications, is dismissed with costs assessed at Rs 50,000 payable to the respondent within four weeks from today.
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Chief Justice's Court Petitioner: Anjuman Intazamia Masazid Varanasi Respondent: Ist ADJ Varanasi and Others Counsel for Petitioner: S.F.A. Naqvi, learned Senior Advocate, Puneet Kumar Gupta, Syed Ahmed Faizan. Counsel for Respondent: Ajay Kumar Singh, Vijai Shankar Rastogi, M.C. Chaturvedi, learned Additional Advocate General, Kunal Ravi Singh, Chief Standing Counsel, Vijay Shanker Mishra, Chief Standing Counsel - VI, Hare Ram Tripathi, Senior Counsel, Sri Ankit Gaur, Senior Counsel, Vineet Sankalp, Senior Counsel, Shashi Prakash Singh, Additional Solicitor General of India, Manoj Kumar Singh, Ved Mani Tiwari and Sudarshan Singh, learned Chief Government Counsel., Matters under Article 227 Nos. 3562 of 2021, 1521 of 2020, 234 of 2021 and 3844 of 2021. Hon'ble Pritinker Diwaker, Chief Justice of the Allahabad High Court., At the outset when these cases are called out, an objection is raised on behalf of the petitioners questioning the propriety of the Allahabad High Court to proceed with the hearing of the cases. The factual backdrop in which the objection is raised is somewhat peculiar and requires narration in order to effectively deal with the submission raised at the Bar., It is urged on behalf of the petitioners that a learned Single Judge has already heard the matter on approximately 75 dates and thereafter reserved the judgment on 25 July 2023, fixing today i.e. 28 August 2023 as the date for delivery of judgment. The argument is that the cases ought not to have been withdrawn from the concerned Allahabad High Court, on administrative side, by the Chief Justice, for being heard all over again. It is submitted that the course adopted on the administrative side is against propriety and, therefore, liable to be withdrawn with further directions issued for the cases to be placed before the same bench which had concluded the hearing on 25 July 2023., It is good that the issue of propriety is raised as it is the duty of the Allahabad High Court to ensure that the proceedings before it are insulated from any procedural aberration. Judicial proceedings must remain solemn so as to command the faith of the citizenry., Record reveals that the cases were heard on 18 January 2021 by the Allahabad High Court which had the jurisdiction as per the roster assigned by the Chief Justice. After the cases were heard on several dates the proceedings were concluded and judgment was reserved in the matter on 15 March 2021. The judgment, however, was not delivered in the matter. The cases nevertheless continued to be listed before the same Allahabad High Court even after the concerned learned Single Judge ceased to have jurisdiction in the matter as per roster., It would be worth noticing that an administrative order of the then Chief Justice dated 16 December 2013 regulates the listing of cases before the learned Judges, as per the roster. The administrative order dated 16 December 2013 reads as under: \No pending case, civil or criminal, shall be treated as part‑heard or tied up in a Court after the commencement of a new roster. All pending cases shall be listed before the appropriate Bench dealing with such matters in accordance with the fresh roster, unless so ordered by the Chief Justice in a specific case hereafter.\, The aforesaid administrative order dated 16 December 2013 fell for examination by a Full Bench of this Court in Criminal Appeal No. 4922 of 2006 (Amar Singh vs. State of U.P.), wherein the Larger Bench held as under: It is for this reason that the Chief Justice under the administrative order dated 16 December 2013 had directed that no case shall be treated as tied up or part‑heard after the commencement of a new roster except when so ordered by the Chief Justice in a specific case hereafter. The circular of the Chief Justice dated 16 December 2013 has to be read in a manner that it is in conformity with the Rules, 1952 of the Court. In our opinion the circular of the Chief Justice only intends to provide that the Registry on its own will not list a matter before a particular Bench after the change of roster on the pretext that it is a tied up or part‑heard matter. Only such cases are to be listed before a particular Bench under the category of 'tied up cases', as may be ordered by the Chief Justice after the change of roster. The purpose is obvious. The Chief Justice can examine as to whether the order made by the Bench concerned for treating the matter as tied up or part‑heard or for listing of the matter before the same Bench, is in conformity with the Rules or in conflict thereof as has been noticed in Sanjay Kumar Srivastava (supra) and in Sanjay Mohan (supra). Initially the counsel for the Allahabad High Court suggested that the rationale behind the circular was to see that the special Benches are not required to be constituted for hearing tied up matters so as to save judicial time. Delay in disposal of the matters is avoided by placing the matter before a Bench which is readily available as per the changed roster. The order dated 16 December 2013 only clarifies the confusion which may arise in respect of listing of the matters before the Court concerned. We are in agreement with the rationale suggested by the counsel for the High Court but at the same time as noticed above, the circular has to be read in conformity with the statutory rules. We are, therefore, of the opinion that the order dated 16 December 2013 has to be read in a manner to suggest that in all matters where there are judicial orders for the matter being treated as part‑heard or orders for listing of the matters for further hearing before a particular Judge/Bench, the Registry shall not on its own list the matter before the same Judge/Bench but would place the records of the case before the Chief Justice so that the Chief Justice can examine as to whether the order made by the Judge/Bench for the case being treated as tied up or part‑heard, is in conformity with the Rules or not. The Chief Justice may, thereafter, issue appropriate orders for the listing of the matter before the appropriate Bench. We may record that even if the case is found to be tied up or part‑heard by the Chief Justice within the meaning of Rule 14 of Chapter V of Rules, 1952, the Chief Justice can issue orders for the matter to be listed before another Bench for good and valid reasons. This power of the Chief Justice has been recognized by the Supreme Court in State of Rajasthan vs. Prakash Chand (supra) and paragraph 10 is reproduced below: \10. A careful reading of the aforesaid provisions of the Ordinance and Rule 54 shows that the administrative control of the High Court vests in the Chief Justice of the High Court alone and that it is his prerogative to distribute business of the High Court both judicial and administrative. He alone has the right and power to decide how the Benches of the High Court are to be constituted: which Judge is to sit alone and which cases he can and is required to hear as also as to which Judges shall constitute a Division Bench and what work those Benches shall do. In other words such work only as may be allotted to them by an order of or in accordance with the directions of the Chief Justice. That necessarily means that it is not within the competence or domain of any Single or Division Bench of the Court to give any direction to the Registry in that behalf which will run contrary to the directions of the Chief Justice. Therefore in the scheme of things judicial discipline demands that in the event a Single Judge or a Division Bench considers that a particular case requires to be listed before it for valid reasons, it should direct the Registry to obtain appropriate orders from the Chief Justice. The puisne Judges are not expected to entertain any request from the advocates of the parties for listing of case which does not strictly fall within the determined roster. In such cases, it is appropriate to direct the counsel to make a mention before the Chief Justice and obtain appropriate orders. This is essential for smooth functioning of the Court. Though, on the judicial side the Chief Justice is only the 'first amongst the equals' on the administrative side in the matter of constitution of Benches and making of roster, he alone is vested with the necessary powers. That the power to make roster exclusively vests in the Chief Justice and that a daily cause‑list is to be prepared under the directions of the Chief Justice as is borne out from Rule 73, which reads thus: ...\, The above said judgment has been approved by the Supreme Court in Kishore Samrite (supra). It is also worthwhile to refer to the judgment of the Supreme Court in High Court of Andhra Pradesh vs. Special Deputy Collector (L.A.), Andhra Pradesh and others reported in (2007) 13 SCC 580 wherein paragraph 6 it has been held as follows: \6 At this juncture, it is to be noted that where the matter is heard in part, normally it should not be transferred to another Bench or learned Single Judge. But it has come to notice in several instances that cases have been noted to be part‑heard even when it was really not so. Such practice is to be discouraged. The Chief Justice of the High Court has power even to transfer a part‑heard case from one Bench to another or from one learned Single Judge to another. But this should be done in exceptional cases for special reasons.\, The administrative order of the Chief Justice, dated 16 December 2013, as interpreted by the Full Bench of this Court in Amar Singh (supra) required the present bunch of cases to be placed before the Chief Justice for the cases to be nominated to the concerned court so as to vest jurisdiction in the court concerned to proceed with the hearing of cases after the concerned learned Judge had ceased to have jurisdiction in the matter., Notwithstanding the above requirement in law the learned Single Judge continued with the hearing of cases, though he had no jurisdiction to hear them as per the roster. No nomination was otherwise obtained from the Chief Justice in terms of the administrative order dated 16 December 2013. The records of the present bunch of cases were not even placed before the Chief Justice for necessary orders in terms of the judgment of this Court in Amar Singh (supra). The learned Single Judge, however, continued with the hearing of these cases for more than two years even though he had no jurisdiction in the matter as per the roster., Jurisdictional impropriety, noticed above, would have gone undetected but for a complaint made on the administrative side before the Chief Justice on 27 July 2023 by the counsel appearing for one of the parties to the proceedings which highlighted the fact that hearing is proceeding in these cases in derogation of the procedure laid down in law for listing of the cases as per the rules. The contents of the complaint made on the administrative side on 27 July 2023 are extracted hereinafter: This application is being filed for reallocation of Writ Petition under Article 227 No. 3562/2021, 3341/2017, 3844/2021, 234/2021, 1521/2020 titled as U.P. Sunni Central Waqf Board vs Ancient Idol of Swayambhu Lord Vishweshwar and Others tied up to Justice Prakash Padia to appropriate bench as Justice Padia has failed to deliver judgment after reserving the same within a period of six months. Sir, the hearing in this matter was held in the court of Justice Prakash Padia starting from 18 January 2021 up to 15 March 2021. After 35 hearings the matter was reserved by Justice Prakash Padia on 15 March 2021 for the first time. The judgment could not be delivered and judgment was reserved for seven months. The matter was again directed to be listed along with other writ petitions with leading case 3562/2021 vide order. The case was heard from 10 November 2021 up to 28 November 2022 i.e. on ten dates and judgment was reserved on 28 November 2022 in W.P. No. 3562/2021 and other connected matters. In the meantime the Apex Court passed an order in the case of Umesh Rai vs State of U.P. on 15 May 2023 directing that if judgment is not delivered within six months the same has to be listed before a different bench. The deadline was expiring before Justice Prakash Padia on 28 May 2023. The case was listed on 24 May 2023 and Justice Prakash Padia directed to list the matter for rehearing on 26 May 2023. The case has been again heard on 25 July 2023 and judgment has been reserved. It is relevant to mention that the case of Anil Rai vs State of Bihar 2001 7 SCC 318 has been reiterated in the case of Umesh Rai vs State of U.P. reported in 2023 Live Law SC 448; it has been held that judgment must be pronounced within a period of six months failing which the matter should be placed before another bench for fresh arguments. A copy of the case of Umesh Rai vs State of U.P. reported in 2023 Live Law SC 448 is attached herewith. The judgment has been reserved in this case thrice and the order of the Apex Court has been violated blatantly. Therefore, it is requested to list the matter before another bench., On the matter being placed before the Chief Justice on the administrative side, a report was called from the office as it was expected for the registry to have placed this matter before the Chief Justice for passing appropriate orders in terms of the administrative order dated 16 December 2013 and the Full Bench judgment of this Court in Amar Singh (supra)., The report submitted by the registry states that the leading file along with connected matters were listed before the learned Single Judge on 09 August 2021 when a direction was issued to list the cases on 11 August 2021. On 11 August 2021 the matter was directed to be listed for further hearing on 17 August 2021. As per the roster notified on 22 November 2021 and subsequent rosters notified by the Chief Justice, from time to time (except the last two rosters, i.e. w.e.f. 13 March 2023 and 3 July 2023), these cases could not have been listed before the learned Single Judge without obtaining appropriate nomination from the Chief Justice. The registry has further clarified that the records of these cases were never sent to the parent section in the registry for the procedures to be followed for listing of the cases in terms of the applicable orders, both on the administrative side and the judicial side., The registry has further reported that all records of the leading file along with connected cases remained in the chambers of the learned Judge and the cases were listed on the instructions of Bench Secretary and the officials attached to His Lordship's chambers. As per the registry the parent section responsible for listing of the cases before the Allahabad High Court had no access to the records of the cases as the files were never sent to the registry. Relevant portion of the report of registry is reproduced hereinafter: On the basis of above reports, it transpires that from January 2021, the leading file of the matter under Article 227 No. 3562/2021 has been listed before the Allahabad High Court on different dates along with Matter under Article 227 No. 3341/2017 (Anjuman Intazamia Masazid Varanasi Vs. Ist ADJ, Varanasi and others), Matters under Article 227 No. 3844 of 2021 (Anjuman Intazamia Masazid Varanasi Vs. Ancient Idol of Swayambhu Lord Vishweshwar and others), Matter under Article 227 No. 234 of 2021 (U.P. Sunni Central Board of Waqfs Lucknow Vs. Ist ADJ, Varanasi and others) and Matters under Article 227 No. 1521 of 2020 (Anjuman Intazamia Masazid Varanasi Vs. Ancient Idol of Swayambhu Lord Vishweshwar and others), which were connected by the Allahabad High Court on different dates. As far as the tied up/part‑heard status of the matters is concerned, on 09 August 2021 the leading file along with connected matters had been listed before the Allahabad High Court (Justice Prakash Padia). In compliance with the Court's order dated 09 August 2021, the said case with connected matters had been listed on 11 August 2021 before Justice Prakash Padia and on the same day i.e. 11 August 2021, the Court had been pleased to pass the order to put up in additional cause list for further hearing on 17 August 2021 along with matters under Article 227 No. 3844 of 2021 and matters under Article 227 No. 1520 of 2020 and other connected matters. Thereafter, a new roster came into effect from 6 September 2021. Since then, the constitution of benches (roster) at Allahabad has changed a number of times. The office in its report has stated that the leading file along with other connected matters had been placed before the Allahabad High Court on 09 August 2021. Since then, records of matters were not consigned to the parent section for further compliance of order of the Court. All records of the leading file, including connected matters, remained in the chambers of the concerned Allahabad High Court. The matters have been listed before the Court from the end of chambers of the concerned Court as well as the end of the learned Bench Secretary, attached with the Court. The matters/connected matters were reserved for judgment firstly on 12 March 2021. The case was last listed on 25 July 2023 before the Allahabad High Court No. 4 (Justice Prakash Padia) and the Court has again reserved the judgment and fixed the date for delivery of judgment on 28 August 2023., It is in the above backdrop that the issue got examined at the level of the Chief Justice on the administrative side and a decision was taken on 11 August 2023 for the cases to be withdrawn from the learned Single Judge for a fresh nomination., It is apt to note that procedural observance in the matter of disposal of cases subserves a larger public interest of ensuring faith in the justice dispensation system and cannot be viewed lightly. Under the rules of the Allahabad High Court every learned Judge is expected to decide cases which are listed before them as per the roster fixed by the Chief Justice or as per the orders of the Chief Justice passed on the administrative side in terms of the law laid down in the case of Amar Singh (supra)., Delay reported in delivery of judgments has otherwise been viewed with concern by the Supreme Court and necessary guidelines have been issued for pronouncement of judgment in the case of Anil Rai vs. State of Bihar, (2001) 7 SCC 318, which are reproduced hereinafter: (i) The Chief Justice of the High Courts may issue appropriate directions to the Registry that in a case where the judgment is reserved and is pronounced later, a column be added in the judgment where, on the first page, after the cause‑title date of reserving the judgment and date of pronouncing it be separately mentioned by the court officer concerned. (ii) That Chief Justices of the High Courts, on their administrative side, should direct the Court Officers/Readers of the various Benches in the High Courts to furnish every month the list of cases in the matters where the judgments reserved are not pronounced within the period of that month. (iii) On noticing that after conclusion of the arguments the judgment is not pronounced within a period of two months the Chief Justice concerned shall draw the attention of the Bench concerned to the pending matter. The Chief Justice may also see the desirability of circulating the statement of such cases in which the judgments have not been pronounced within a period of six weeks from the date of conclusion of the arguments amongst the Judges of the High Court for their information. Such communication be conveyed as confidential and in a sealed cover. (iv) Where a judgment is not pronounced within three months from the date of reserving it, any of the parties in the case is permitted to file an application in the High Court with a prayer for early judgment. Such application, as and when filed, shall be listed before the Bench concerned within two days excluding the intervening holidays. (v) If the judgment, for any reason, is not pronounced within a period of six months, any of the parties of the said lis shall be entitled to move an application before the Chief Justice of the High Court with a prayer to withdraw the said case and to make it over to any other Bench for fresh arguments. It is open to the Chief Justice to grant the said prayer or to pass any other order as he deems fit in the circumstances., The law laid down in Anil Rai (supra) came to be reiterated recently by the Supreme Court in the case of Umesh Rai @ Gora Rai vs. State of U.P. being Criminal Appeal No. 1518 of 2023, wherein the Supreme Court did not approve the nomination of case to the same bench, by the Chief Justice, for hearing which had not delivered the judgment for more than six months. Though the concerned bench had fixed 19 May 2023 for delivery of judgment, yet the Supreme Court directed the matter to be assigned to another bench. The direction of the Supreme Court contained in its judgment dated 15 May 2023 is reproduced: \We are of the view that thereafter the matter was required to be handed over to another Bench, more so, in the manner it has proceeded even thereafter, simply being assigned to the same Bench and thereafter being concluded on that date by the same Bench. We thus cannot appreciate the reassigning of the matter to the same Bench and we direct that the matter be assigned by the Chief Justice to another Bench keeping in mind the ratio in Anil Rai (supra).\ Thus, there is no question of pronouncement of judgment now by the same Bench., Facts of this case pose a more troubled scenario of procedural aberration. The non‑observance of procedure in listing of the cases, passing of successive orders for reserving the judgment and again listing the cases before the learned Judge for hearing, though he no longer had jurisdiction in the matter as per the roster, under the directions received from the chamber of the learned Judge, without allowing the parent section in the office to have access to the records of these cases are instances of non‑observance of procedure settled for listing and hearing of cases., It is this concern of propriety which has compelled the Chief Justice to pass the following orders on the administrative side on 11 August 2023: The issue involved in the present complaint relates to the listing and status of Matters Under Article 227 No. 3562 of 2021 (U.P. Sunni Central Board vs. Ancient Idol of Swayambhu Lord Visheshwar and five others) along with connected matters i.e. Matters Under Article 227 No. 3341 of 2017 (Anjuman Intazamia Masazid Varanasi vs. Ist ADJ, Varanasi and others), Matters Under Article 227 No. 3844 of 2021 (Anjuman Intazamia Masazid Varanasi vs. Ancient Idol of Swayambhu Lord Vishweshwar and 5 others), Matters Under Article 227 No. 234 of 2021 (U.P. Sunni Central Board of Waqfs Lucknow vs. Ist ADJ, Varanasi and others) and Matters Under Article 227 No. 1521 of 2020 (Anjuman Intazamia Masazid Varanasi vs. Ancient Idol of Swayambhu Lord Vishweshwar and 5 others) from January 2021 till date. As per the office report, the aforesaid cases were firstly listed on 18 January 2021 before the Bench having jurisdiction at that point of time and thereafter when the cases were listed on 12 March 2021, the judgment was reserved. Thereafter, with the change of roster, as per the scheme of this Court, these cases were to be listed before the Bench having jurisdiction over such cases at the particular time, but unfortunately those were marked tied up and part‑heard before the same Bench, where it was listed on 12 March 2021. Having considered the seriousness of the allegation made in the aforesaid complaint; the facts of the present case; the administrative order dated 16 December 2013 passed by the then Chief Justice as well as the law laid down by a Full Bench of this Court in the case of Amar Singh vs. State of U.P. (Criminal Appeal No. 4922 of 2006 decided on 28 July 2015) and by the Supreme Court in the case of Umesh Rai @ Gora Rai vs. State of U.P. (Criminal Appeal No. 1518 of 2023) [SLP (Crl) No. 6088 of 2023], I am of the opinion that it would be in the interest of judicial propriety and judicial discipline as well as the transparency in the listing of cases, to withdraw the aforesaid cases from the Bench (Justice Prakash Padia, J) wherein the judgment is reserved and to nominate afresh. Ordered accordingly. Registry to make compliance forthwith., Thereafter, on 25 August 2023, this bunch of petitions came to be nominated to the present Bench (Chief Justice). The administrative order of the date reads as under: Be placed before the Chief Justice (Single Bench) on 28 August 2023., For the reasons enumerated above, the objection raised to the proceedings on behalf of the petitioners is consigned to the records. List the matter on 12 September 2023 for hearing.
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Judgment reserved on 04.09.2023; judgment delivered on 16.10.2023. Through Mr. S. K. Rungta, Senior Advocate with Mr. Prashant Singh, Advocate, versus through Mr. S. Rajappa and Mr. R. Gourishankar, Advocates for Respondent 1. Respondent 2 is the National Council for Teacher Education. Respondent 3 is the Central Government Solicitor's Counsel with Mr. Yash Tyagi and Mr. Subhrodeep Saha, Advocates for Respondent 3/Union of India., Equality is the public recognition, effectively expressed in institutions and manners, of the principle that an equal degree of attention is due to the needs of all human beings. Simone Weil, French Philosopher., The petition before us is a public interest litigation, more appropriately termed social justice litigation. This Supreme Court of India has been approached by the National Federation of the Blind, hereinafter referred as the Federation, through its Secretary Shri S. K. Rungta, Senior Advocate. The Federation has been espousing the cause of persons with visual disability on the legal front for a considerable period of time. The petitioner is aggrieved by the non‑implementation of statutory reservation for persons with disabilities, particularly for blind persons, in the recruitment process by the Kendriya Vidyalaya Sangathan, the respondent. The petitioner seeks the implementation of the statutory and constitutional mandate regarding reservations for persons with visual disabilities., In this petition, the petitioner has assailed Advertisement No. 14 published by the respondent Kendriya Vidyalaya Sangathan in August 2018 for recruitment to the posts of Principal, Vice‑Principal, PGTs, TGTs, Librarian etc. The advertisement indicates the number of vacancies earmarked for different categories, reserved and unreserved. The reserved vacancies are bifurcated as per vertical caste‑based reservation criteria and horizontal reservation criteria for persons with disabilities. Within the vacancies reserved for persons with disabilities, the vacancies are further bifurcated, indicating the vacancies reserved for different categories of disabilities such as OH, HH, VH and Others. The impugned advertisement further reveals that the vacancies are reserved in a post‑wise and subject‑wise manner. For instance, the post of Principal has no vacancy for a person with visual disability, whereas the post of Vice‑Principal carries a vacancy. Within the same cadre, for instance PGTs, certain subjects have vacancies for one category of disability only and certain subjects have no vacancy at all for any disability, despite falling in the same cadre., The Federation submits that the advertisement is in violation of Section 34 of the Rights of Persons with Disabilities Act, 2016, which mandates at least four percent reservation for persons with disabilities, out of which three categories of persons with disabilities are entitled to one percent each of the reserved vacancies. It is further submitted that the advertisement has excluded the post of Principal from the posts reserved for persons with visual disability, which is ex‑facie discriminatory and violative of the 2016 Act. The exclusion of the post of Principal is not only discriminatory but also absurd in view of the fact that it is a promotional post for the post of Vice‑Principal, which is a feeder post and is reserved for blind persons., It is further submitted that the advertisement also violates the principle of reservation of four percent against the total number of vacancies in a cadre, including both identified and unidentified posts. The respondent has reserved the vacancies against the identified posts only and has not been maintaining a vacancy‑based roster despite specific directions. Instead, the respondent has been maintaining a post‑based roster. This action is in complete disregard of the decision of the Honourable Supreme Court of India in Civil Appeal No. 9096/2013 dated 08.10.2013, as well as of Section 34 of the 2016 Act read with Rule 11 of the Rights of Persons with Disabilities Rules, 2017., The respondent has not computed the backlog of vacancies and has not taken any steps to fill up the vacancies by undertaking a special recruitment drive, which runs completely contrary to the decision of the Honourable Supreme Court of India and the statutory scheme of the 2016 Act., Initially, the petitioner had also challenged the condition regarding non‑acceptance of Special B.Ed. course candidates for the post of PGT. It was submitted that the said exclusion was discriminatory and could not be sustained in view of the mandate of the Act. Vide order dated 12.09.2018, this Court had passed an interim order directing that the applications of visually impaired candidates with Special B.Ed. degree be accepted for the post of PGT, subject to final decision of the case. The order read: \In the meanwhile, for all such courses, which have been identified for the category in question (visually impaired) offline application of candidates with Special B.Ed. degree should be provisionally accepted for the post of PGT, subject to final decision of this petition.\, At the stage of final hearing as well as in the written submissions, the petitioner did not press the issue regarding Special B.Ed. candidates as the same issue is pending consideration in W.P.(C) No. 6052/2015 titled Score Foundation v. Kendriya Vidyalaya Sangathan & Ors. Accordingly, in the interest of justice and consistency of adjudication, we do not propose to consider the said issue and shall refrain from giving our opinion on the same., In response to the petition, the respondent Sangathan filed a counter‑affidavit opposing the grounds taken by the petitioner. The Ministry of Social Justice and Empowerment, Government of India, vide notification No. 16‑15/2020‑DD‑III dated 29.07.2013, circulated a list of posts which were found suitable for persons with disabilities. The respondent constituted a Committee which found the following posts suitable for visually handicapped persons: Administrative Officer; PGT (English, Hindi, Geography, History, Economics); TGT (English, Hindi, Sanskrit, Social Studies); Primary Teacher; PRT (Music, Work Experience); Vice‑Principal; Assistant Section Officer; Hindi Translator; Senior Secretariat Assistant; Stenographer Grade‑II. The following posts were not found suitable on the basis of the nature of the job for visually impaired persons: Deputy Commissioner; Assistant Commissioner; Finance Officer; Technical Officer; Principal; PGT (Physics, Chemistry, Maths, Biology, Commerce, Bio‑Tech, Computer Science); TGT (Maths, Science, Art Education, P&HE); Librarian., The respondent submitted that a Principal is required to perform various administrative, financial and academic functions. Furthermore, the Principal is also the Drawing and Disbursing Officer and, as such, the Committee took a considered decision to exclude the said post from the posts identified for visually impaired persons., As regards the non‑implementation of the statutory four percent reservation, a Committee of KVS Officers was constituted to examine the enhancement of reservation from three percent to four percent. In a meeting held on 31.08.2018, the Committee considered Office Memorandum No. 36035/02/2017‑Estt(Res) dated 15.01.2018 issued by the Department of Personnel, Public Grievances and Pensions, Government of India and resolved to seek exemption from implementing the additional one percent reservation, as per the option available in the aforesaid Office Memorandum. The Committee resolved to seek exemption primarily on the ground of the nature of duties being performed at the Kendriya Vidyalayas., The petitioner, through an additional affidavit, rebutted the grounds urged by the respondent. The Federation submitted that the respondent has admitted that it has been maintaining and computing the reservation on the basis of posts, not vacancies. This is violative of Section 34 of the 2016 Act, Rule 11 of the 2017 Rules and the order dated 08.10.2013 passed by the Honourable Supreme Court of India. The petitioner further submitted that the respondent has not implemented the enhanced reservation to the extent of four percent and has done so without taking recourse to the proviso attached to Section 34 of the 2016 Act. The respondent has also not implemented the three percent reservation for the post of teacher as the mode of calculation is subject‑wise, instead of calculation of three percent against the total number of vacancies, as mandated., Regarding the stand taken by the respondent in support of the exclusion of the post of Principal, the petitioner submitted that the stand is contrary to Section 32 of the 2016 Act. The notification dated 29.07.2013 issued by the Ministry of Social Justice & Empowerment was wrongly relied upon by the respondent for excluding the post of Principal because the post of Principal was identified as a suitable post for blind persons in that notification at Sr. No. 713, 767 and 768. The latest notification dated 04.01.2021 also included the post of Principal in the list of identified posts at Sr. No. 278, 1030 and 1031. The 2013 notification did not empower any department to delete any post from the list of identified posts; a department could only supplement the list, not delete from it., We have heard the learned counsel for the parties., Having noted the competing grounds raised by the parties before us, we may now lay down the points that arise for our consideration: (i) Whether the respondent has failed to implement the scheme of reservation at four percent in terms of Section 34 of the 2016 Act; (ii) Whether the quantum of four percent is to be calculated against the total number of vacancies in a cadre strength or against the number of identified posts; (iii) Whether the exclusion of the post of Principal from the scope of reservation is ex‑facie discriminatory and violative of the 2016 Act., The Constitution of India envisages special protection for certain classes. One such class is that of persons with disabilities. Parliament is constitutionally empowered to create special provisions, including reservations in public employment, for persons with disabilities. The notion of special protection stems from the basic feature of equality and equal protection before the law. Our constitutional jurisprudence has unequivocally acknowledged that the principle of equality is not a straight‑jacket principle, and it duly incorporates the idea of special provisions for certain identified classes. Special protections, cutting through discrimination and discriminatory practices, may very well fall under the umbrella of the equality principle. It is an acknowledgement of the Constitution that all persons in a society are not similarly placed and standards of equality are not to be applied to persons who are differently placed. The existence of a level playing field is a sine qua non for equal treatment. By enabling the enactment of special provisions, the Constitution plays its role of an equaliser by creating a level playing field., In furtherance of this constitutional mandate and the 1992 Proclamation on Full Participation and Equality of People with Disabilities adopted by the Economic and Social Commission for Asia and the Pacific, Parliament enacted the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, hereinafter referred as the 1995 Act, which came into force on 7 February 1996. The 1995 Act was a turning point in addressing the long‑due concerns of persons with disabilities. It provided for a mandatory reservation of three percent for persons with disabilities in public employment. In 2006, the United Nations adopted the United Nations Convention for Persons with Disabilities. India ratified the convention in 2007. Notably, the 1995 Act was primarily based on a physical inability perspective. The UN Convention, 2006 laid the foundation for a rights‑based perspective keeping in view the social as well as the physical factors. The Indian Parliament responded to the demand for comprehensive legislation and enacted the 2016 Act., As we discuss the legal journey, we may note that the progression has not been on the legislative front alone. Even on the judicial side, we have evolved from a sympathy‑oriented approach to a rights‑oriented approach. The rights belonging to persons with disabilities are meant to secure inclusivity and human dignity. Such rights, although statutorily enacted, find their roots in the fundamental rights of life, equality and non‑discrimination, as enshrined in the Constitution. The guarantee of equal opportunity to all equally extends to persons with disabilities and while interpreting the benevolent provisions of the statutes in this regard, the Court must be mindful of the same., The 2016 Act is a landmark social justice legislation for creating an equal participating space for persons with disabilities. It is founded on the principles of equality, non‑discrimination and human dignity. Pertinently, it is a manifestation of both affirmative action and prohibitory action. The rights created in the said statute are both positive and negative, i.e., positive obligations upon the State and other instrumentalities, and negative rights in the form of prohibition on specified conduct., The 2016 Act defines discrimination as any restriction, distinction or exclusion on the basis of disability as: \discrimination in relation to disability means any distinction, exclusion, restriction on the basis of disability which is the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field and includes all forms of discrimination and denial of reasonable accommodation.\ A government establishment is defined as any body aided or controlled by the Government: \government establishment means a corporation established by or under a Central Act or State Act or an authority or a body owned or controlled or aided by the Government or a local authority or a Government company as defined in section 2 of the Companies Act, 2013 (18 of 2013) and includes a Department of the Government.\ As per the definition, the respondent Sangathan is a government establishment within the meaning of the Act and is liable to act in accordance with the duties and responsibilities imposed upon government establishments under the Act., Section 3 is a crucial provision as it enjoins the appropriate government, Central Government in this case, to ensure equality and non‑discrimination. The provision reads: (1) The appropriate Government shall ensure that persons with disabilities enjoy the right to equality, life with dignity and respect for his or her integrity equally with others. (2) The appropriate Government shall take steps to utilise the capacity of persons with disabilities by providing appropriate environment. (3) No person with disability shall be discriminated on the ground of disability, unless it is shown that the impugned act or omission is a proportionate means of achieving a legitimate aim. (4) No person shall be deprived of his or her personal liberty only on the ground of disability. (5) The appropriate Government shall take necessary steps to ensure reasonable accommodation for persons with disabilities., Section 20 provides for non‑discrimination in employment: (1) No government establishment shall discriminate against any person with disability in any matter relating to employment, provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, exempt any establishment from the provisions of this section. (2) Every government establishment shall provide reasonable accommodation and appropriate barrier‑free and conducive environment to employees with disability. (3) No promotion shall be denied to a person merely on the ground of disability. (4) No government establishment shall dispense with or reduce in rank an employee who acquires a disability during his or her service, provided that, if an employee after acquiring disability is not suitable for the post he was holding, he shall be shifted to some other post with the same pay scale and service benefits; if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier. (5) The appropriate Government may frame policies for posting and transfer of employees with disabilities., Section 33 enjoins the appropriate government to identify posts which could be reserved for persons with benchmark disabilities: (i) identify posts in the establishments which can be held by respective category of persons with benchmark disabilities; (ii) constitute an expert committee with representation of persons with benchmark disabilities for identification of such posts; (iii) undertake periodic review of the identified posts at an interval not exceeding three years., Section 34 is a key provision for the present enquiry. It provides for statutory reservation of not less than four percent of the total number of vacancies in the cadre strength in each group, to be filled by persons with benchmark disabilities. (1) Every appropriate Government shall appoint in every government establishment not less than four percent of the total number of vacancies in the cadre strength in each group of posts meant to be filled with persons with benchmark disabilities, of which one percent each shall be reserved for persons with benchmark disabilities under clauses (a), (b) and (c) and one percent for persons with benchmark disabilities under clauses (d) and (e), namely: (a) blindness and low vision; (b) deaf and hard of hearing; (c) locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid‑attack victims and muscular dystrophy; (d) autism, intellectual disability, specific learning disability and mental illness; (e) multiple disabilities from amongst persons under clauses (a) to (d) including deaf‑blindness, in the posts identified for each disability. Provided that the reservation in promotion shall be in accordance with such instructions as are issued by the appropriate Government from time to time. Provided further that the appropriate Government, in consultation with the Chief Commissioner or the State Commissioner, as the case may be, may, having regard to the type of work carried out in any government establishment, by notification and subject to such conditions, if any, exempt any government establishment from the provisions of this section. (2) Where in any recruitment year any vacancy cannot be filled due to non‑availability of a suitable person with benchmark disability or for any other sufficient reasons, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also a suitable person with benchmark disability is not available, it may first be filled by interchange among the five categories and only when there is no person with disability available for the post in that year, the employer shall fill up the vacancy by appointment of a person other than a person with disability, provided that if the nature of vacancies in an establishment is such that a given category of person cannot be employed, the vacancies may be interchanged among the five categories with the prior approval of the appropriate Government. (3) The appropriate Government may, by notification, provide for such relaxation of upper age limit for employment of persons with benchmark disability, as it thinks fit., The respondent has relied upon a resolution passed in a Committee meeting on 31.08.2018. The meeting was held in furtherance of Office Memorandum No. 36035/02/2017‑Estt(Res) dated 15.01.2018 issued by the Department of Personnel, Public Grievances and Pensions, Government of India. The Office Memorandum was issued to give effect to the mandate of the 2016 Act read with the 2017 Rules. It reiterates the mandate of minimum four percent reservation for persons with disabilities as per the categorisation mentioned in Section 34 of the Act. Clause 3 of the Office Memorandum provides for exemption from reservation as: If any Ministry/Department in the Central Government considers it necessary to exempt any establishment or any cadre fully or partly from the provisions of reservation for persons with benchmark disabilities, it shall make a reference to the Department of Empowerment of Persons with Disabilities giving full justification for the proposal, which, having regard to the type of work carried out in any government establishment, may, by notification and subject to such conditions, if any, as may be specified in the notification, in consultation with the Chief Commissioner for Persons with Disabilities, exempt any establishment or any cadre(s) fully or partly from the provisions of reservation for persons with benchmark disabilities., Clause 6 of the Office Memorandum provides for computation of the number of posts to be reserved: (6.1) The number of posts to be reserved for persons with benchmark disabilities in case of Group C posts shall be computed on the basis of total number of vacancies in the cadre strength of Group C posts in the establishment, although recruitment of persons with benchmark disabilities would only be against the category of posts identified suitable for them. The number of vacancies to be reserved for persons with benchmark disabilities in case of direct recruitment to Group C posts shall be computed by taking into account the total number of vacancies arising in Group C posts for being filled by direct recruitment in a recruitment year, both in the identified and non‑identified category of posts. Since reservation, wherever applicable, for persons with benchmark disabilities is provided by computing total number of vacancies in the cadre strength in identified and unidentified categories of posts, it may be possible that the number of persons appointed by reservation in an identified category of post may exceed four percent. (6.2) Reservation for persons with benchmark disabilities in Group A or Group B posts shall be computed on the basis of total number of vacancies occurring in direct recruitment quota in the cadre in all the Group A posts or Group B posts respectively, and the computation of total vacancies shall include vacancies arising in the identified and non‑identified category of posts.
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The aforesaid clause offers a crucial guiding mechanism for the computation of reservation, as contemplated by the statute. On a literal and grammatical reading of Clause 6, it becomes clear that the reservation is to be computed on the total number of vacancies in the cadre strength of a group. Such total number of vacancies may include both identified and unidentified posts. Once the number of posts to be reserved is calculated to the extent of four percent on the total number of vacancies, actual appointment of the persons with disabilities shall take place against the posts identified to be suitable for them under Section 33 of the Act. Sub‑clause 6.1 further clarifies that it may be possible that the number of persons appointed against the identified category of posts may even exceed four percent. The same is permissible., The method of computation is further refined in Rule 11 of the 2017 Rules, which reads thus: 11. Computation of vacancies .- (1) For the purposes of computation of vacancies, four percent of the total number of vacancies including vacancies arising in the identified and nonidentified posts in the cadre strength in each group of posts shall be taken into account by the appropriate Government for the persons with benchmark disabilities: Provided that the reservation in promotion shall be in accordance with the instructions issued by the appropriate Government from time to time. (2) Every Government establishment shall maintain a vacancy based roster for the purpose of calculation of vacancies for persons with benchmark disabilities in the cadre strength as per the instructions issued by the appropriate Government from time to time. (3) While making advertisement to fill up vacancies, every Government establishment shall indicate the number of vacancies reserved for each class of persons with benchmark disabilities in accordance with the provisions of Section 34 of the Act. (4) The reservation for persons with disabilities in accordance with the provisions of Section 34 of the Act shall be horizontal and the vacancies for persons with benchmark disabilities shall be maintained as a separate class. Sub‑rule (1) categorically provides that the computation of four percent vacancies shall be done on both identified and non‑identified posts collectively. Sub‑rule (2) imposes a further obligation on a government establishment to maintain a vacancy‑based roster for the purpose of calculation of vacancies., For the purpose of computation, we may usefully refer to the order dated 08.10.2013 passed by the Supreme Court of India in Civil Appeal No. 9096/2013. In the said decision, the Court discussed the mandate of the erstwhile legislation i.e. the 1995 Act in order to lay down the principles for computation of vacancies to be reserved for the persons with benchmark disabilities as per statutory scheme of reservation under the Act. The Court relied upon the decision in Government of India through Secretary and Another versus Ravi Prakash Gupta and Another and observed thus: (29) In the light of the above pronouncement, it is clear that the scope of identification comes into picture only at the time of appointment of a person in the post identified for disabled persons and is not necessarily relevant at the time of computing three percent reservation under Section 33 of the Act. In succinct, it was held in Ravi Prakash Gupta that Section 32 of the Act is not a precondition for computation of reservation of three percent under Section 33 of the Act rather Section 32 is the following effect of Section 33. (30) Apart from the reasoning of this Court in Ravi Prakash Gupta, even a reading of Section 33, at the outset, establishes vividly the intention of the legislature viz., reservation of three percent for differently abled persons should have to be computed on the basis of total vacancies in the strength of a cadre and not just on the basis of the vacancies available in the identified posts. There is no ambiguity in the language of Section 33 and from the construction of the said statutory provision only one meaning is possible., The computation method, as discussed above, makes it unambiguously clear that the identified posts come into picture only after recruitment and only at the time of actual appointment. At the stage of recruitment and advertisement of vacancies, the respondent is duty bound to reserve four percent of the total number of vacancies, inclusive of vacancies against identified as well as unidentified posts. Once recruited, appointment can be made against the posts identified as suitable for respective categories of persons with disabilities. Even otherwise, it would be absurd to carry out calculation of four percent against identified posts only. In such a manner, the actual vacancies reserved for persons with disabilities would fall disproportionately short of the total number of vacancies and would never meet the four percent criteria, as envisaged. The same would defeat the mandate of the legislation. Therefore, identification under Section 33 is not a precondition for extending the benefit of reservation under Section 34 of the 2016 Act., As per the impugned advertisement, the category of Others in the last row indicates the vacancies reserved for the persons with benchmark disabilities falling in clauses (d) and (e) of Section 34 for whom at least one percent collective reservation is mandatory. For the post of Principal, Vice Principal, PGTs, Librarian, Primary Teacher and Primary Teacher (Music), no vacancy whatsoever is reserved for the categories in clauses (d) and (e). This is completely violative of the requirement of mandatory reservation of one percent for the said categories of persons. The only way in which the respondent could have excused itself from giving effect to the reservation criteria was by availing exemption in accordance with Section 34 of the 2016 Act read with Rule 11 of the 2017 Rules. No such exemption was granted to the respondent., We may also note that the respondent has calculated the reservation in a subject‑wise manner in the advertisement i.e. after bifurcating the vacancies against different subjects within the same cadre and reserving against eligible identified subjects only. For instance, in PGT category, only twelve vacancies are reserved for persons with benchmark disabilities out of five hundred ninety‑two vacancies. The calculation is made in a manner that some of the subjects have no reserved vacancy for the persons with benchmark disabilities. Going by the criteria of minimum four percent, the respondent ought to have reserved at least twenty‑three vacancies for the persons with benchmark disabilities across all five categories mentioned in Section 34. No doubt, a minimum of one percent must have been reserved for the categories at clauses (a), (b) and (c), and remaining one percent for the categories in clauses (d) and (e) collectively. The effect of reserving the vacancies subject‑wise is to preclude the very idea of reservation against the total number of vacancies inclusive of both identified and unidentified posts. In this advertisement, the respondent has indicated reservation only against some subjects in a selective manner. Even if the approach is to exclude the subjects which cannot be taught by persons with disabilities, the same is impermissible at the time of reservation of vacancies. For, the same would amount to calculation of vacancies against identified posts. The mandate of reservation is unaffected by the identification of posts. The Office Memorandum dated 15.01.2018, in Clause 6, makes it clear that the computation must be against the total number of vacancies in the cadre strength. It may happen that at the time of appointment, the persons with disabilities appointed for any subject may exceed four percent. However, the same is permissible in law. Therefore, the respondent has failed to implement the reservation criteria as per Section 34 in the impugned advertisement and the same is set aside., The respondent has not only failed to calculate the reserved vacancies as per law but has also sought to justify the failure to reserve four percent vacancies by referring to the aforesaid Office Memorandum. However, contrary to the Office Memorandum, no exemption from mandatory reservation of four percent has been sought by the respondent. Therefore, the respondent was bound to conduct computation of reservation in accordance with Clause 6 of the aforesaid., In order to exclude the post of Principal, the respondent has relied upon notification No. 16‑15/2020‑DD‑III dated 29.07.2013 issued by the Ministry of Social Justice and Empowerment, Government of India, whereby certain posts were identified as suitable for reservation for the persons with disabilities. The said list of posts was released by the Ministry as a guiding principle for the government establishments while providing statutory reservation to the persons with disabilities. It was done in accordance with Section 33 of the 2016 Act which empowers the appropriate government to conduct the exercise of identification of posts to be reserved under Section 34. One of the key purposes of the said list was also to ensure that different government establishments do not implement the statutory mandate at their own whims and fancies. In other words, the list was meant to preclude a situation wherein the same post is reserved by one department and is excluded by the other. Importantly, in the said list, the post of Principal was identified as a suitable post for persons with disabilities that is an identified post., In the aftermath of the publication of this list, the respondent constituted its own Committee which did a bifurcation of the list. After bifurcation, the list was split into two categories: posts suitable for reservation and posts not suitable for reservation. As per this bifurcation, the respondent excluded the post of Principal from the list of identified posts for persons with visual disability. The said exclusion also reflected in the impugned advertisement, thereby giving cause for this litigation., However, as discussed above, the primary function of identification of posts is of the appropriate government, as per Section 33 of the Act. There is no power with the respondent or its committee to revisit and cut short the list notified by the government. The process of identification or its review is to be carried out by the appropriate government only. Further, the said exercise is to be carried out after constitution of an expert committee with due representation of persons with benchmark disabilities. Furthermore, the list is to be reviewed after every three years in accordance with the same procedure. The appropriate government in the present case is the Central Government and as per the mandate of Section 33, the Central Government completed the exercise of identification in accordance with law. The said exercise culminated in the form of a list of identified posts., Once certain posts are identified, the government establishments bound by it shall mandatorily reserve the vacancies against the identified posts. No doubt, in addition to the posts identified by the appropriate government, the establishments may identify more posts if found suitable at their own level. However, the posts already identified under Section 33 could not be excluded by any establishment, except in accordance with the second proviso to Section 34. There is no other method which could lead to the exclusion of any post which has been identified for reservation by the appropriate government. As noted by us in the discussion on legislative scheme, such exclusion could only be carried out on the basis of the nature of work and by the appropriate government only. Furthermore, it could only be done after consultation with the Chief Commissioner appointed under the 2016 Act and through a notification. Therefore, the respondent Sangathan, which is an establishment under the Central Government, could not have excluded the post of Principal from the list of identified posts, except in accordance with the procedure discussed herein. In this case, the exclusion was carried out by a resolution of the respondent after a meeting of a Committee. The respondent establishment failed to comply with the procedure and went on to exclude the said post without any consultation and without any notification by the appropriate government. The said procedure is unknown to the scheme of the 2016 Act. The respondent or the Committee of the respondent exercised a power which never vested in it., We may usefully note that the power of identification of posts is bound by a procedure which, amongst other things, involves consultation with experts including persons with disabilities. The persons with disabilities are the direct stakeholders in this exercise and the legislature has aptly carved out a provision for a consultative exercise with such persons. It is manifestation of the principles of natural justice and there can be no deviation from the statutory procedure. Exclusion of a post, without engaging in a consultative exercise, shall also be violative of the principles of natural justice., It is a settled rule of interpretation that when the manner of performance of an act is prescribed by law, the 2016 Act in this case, such act is to be performed in that manner only, or not at all. In State of Uttar Pradesh v. Singhara Singh, the Supreme Court of India, relying upon the landmark decision in Taylor v. Taylor, laid down the principle of law in the following words: The rule adopted in Taylor v. Taylor [(1875) 1 Ch D 426, 431] is well recognised and is founded on sound principle. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted. A magistrate, therefore, cannot in the course of investigation record a confession except in the manner laid down in Section 164. The power to record the confession had obviously been given so that the confession might be proved by the record of it made in the manner laid down. If proof of the confession by other means was permissible, the whole provision of Section 164 including the safeguards contained in it for the protection of accused persons would be rendered nugatory. The section, therefore, by conferring on magistrates the power to record statements or confessions, by necessary implication, prohibited a magistrate from giving oral evidence of the statements or confessions made to him. Further, in Central Income Tax v. Anjum M.H. Ghaswala, the principle was reiterated by a five‑judge bench of the Supreme Court of India as: Then it is to be seen that the Act requires the Board to exercise the power under Section 119 in a particular manner i.e. by way of issuance of orders, instructions and directions. These orders, instructions and directions are meant to be issued to other income tax authorities for proper administration of the Act. The Commission while exercising its quasi‑judicial power of arriving at a settlement under Section 245‑D cannot have the administrative power of issuing directions to other income tax authorities. It is a normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself., After the list published in 2013, the Ministry of Social Justice and Empowerment, Government of India notified another list, under Section 33 of the 2016 Act, vide notification No. 38‑16/2020‑DD‑III dated 04.01.2021. As per this list as well, the post of Principal fell in the category of identified posts for reservation. Note 2 annexed with the notification is in line with our observation that the respondent establishment could only have supplemented the list and could not have curtailed it by excluding any post. It reads thus: Note 2: The list of posts being notified is only indicative and not an exhaustive list. If a post is not mentioned in the list, it is not to be construed that it has been exempted. Central Ministries, Departments, Autonomous Bodies, Public Sector Undertakings may further supplement the list by adding to the list of posts identified for respective category of disability., The petitioner’s submission that the post of Vice‑Principal is a feeder grade post to the post of Principal, which is a promotional post after the post of Vice‑Principal, also holds merit. Note 4 annexed with the aforesaid notification is relevant in this regard and reads thus: Note 4: If a post is identified in the feeder grade, all the posts in the promotional grade should also stand identified. The above note makes it clear that the post of Principal, being a post in the promotional grade, stands automatically identified for reservation as the post of Vice‑Principal is identified. Although reference to Note 4 is not required as the post of Principal is expressly identified by the Central Government, Note 4 would come into play in case a promotional grade is not identified but the feeder post is identified. Be that as it may, it is indicative of the fact that the post of Principal could not be excluded on any parameter., The impugned advertisement is to be read in light of the notification enlisting the identified posts as per Section 33 (2016 Act) and Section 32 (1995 Act). Notably, the list is in a tabular form and mentions the specific category of benchmark disability which is eligible for a given post. The categories are directly lifted from Section 34 of the 2016 Act, thereby meaning that the post of Principal is eligible to be filled by all the categories of persons mentioned at clauses (a) to (d) in Section 34 of the Act. Understood accordingly, it can be said that the test of suitability with respect to the post of Principal has already been carried out by the appropriate government and could not have been revisited by the respondent in the advertisement., In light of the above discussion, it is certain that the power of identification as well as exemption of posts from the statutory mandate of reservation vested only with the appropriate government and not with the respondent establishment. Accordingly, the act of exclusion of the post of Principal cannot be sustained and is accordingly set aside., We may regretfully note that despite the passage of almost four decades of the movement, one United Nations Convention and two legislations passed by the Parliament, we are struggling to fulfil our promises made to the persons with disabilities as our fellow citizens. The journey so far has tried to achieve twin objectives fulfilment of constitutional promises and reformation of mindsets. However, every now and then, seemingly settled issues resurface in the recruitments opened by different departments or by different governments. Every time a judicial forum is asked to revisit and reiterate the same principles, that too for the protection of the vulnerable sections, it only reflects a status‑quoist approach on the part of the departments and establishments. The legislature has taken a commendable leap with the enactment of the 2016 Act, but the process of implementation of the legislative wisdom is challenging. For, reformation of mindsets is a gradual process. From 1995 to 2016, the legislative wisdom experienced a significant growth. However, the status‑quoist approach in implementation of the legislation in its true spirit still prevails. We are reminded of the classic French expression – Plus ça change, plus c’est la même chose which means the more things change, the more they stay the same., The 2016 Act defines discrimination as any form of distinction, restriction or exclusion on the basis of disability, which has the effect of nullifying the enjoyment of human rights and fundamental freedoms at par with others. Interestingly, the definition incorporates both direct as well as indirect discrimination. Recently, in Nitisha v. Union of India, the Supreme Court of India, speaking through Justice D.Y. Chandrachud, engaged in a comprehensive and eloquent discussion on the concepts of direct and indirect discrimination. After a comparative analysis of the prevailing jurisprudence in various jurisdictions such as United States, United Kingdom, Canada and South Africa, the Court evolved a framework of indirect discrimination in India. It observed that discrimination is not always a result of conscious design or malicious intent to discriminate, rather, it may be an outcome of implicit biases. Indirect discrimination may also result from an inability to acknowledge how existing practices may have the consequence or effect of upholding a discriminatory status quo. The relevant observations read thus: F.6. Evolving an analytical framework for indirect discrimination in India 70. A study of the above cases and scholarly works gives rise to the following key learnings. First, the doctrine of indirect discrimination is founded on the compelling insight that discrimination can often be a function, not of conscious design or malicious intent, but unconscious/implicit biases or an inability to recognise how existing structures/institutions, and ways of doing things, have the consequence of freezing an unjust status quo. In order to achieve substantive equality prescribed under the Constitution, indirect discrimination, even sans discriminatory intent, must be prohibited., The Court further observed that the intention‑effects distinction could be a sound jurisprudential basis to distinguish direct and indirect discrimination. Whereas the former is based on an intent to discriminate, the latter is concerned with the ultimate discriminatory effect of an act, irrespective of the intent behind the act. The relevant observations read thus: 71. Second, and as a related point, the distinction between direct and indirect discrimination can broadly be drawn on the basis of the former being predicated on intent, while the latter is based on effect (US, South Africa, Canada). Alternatively, it can be based on the fact that the former cannot be justified, while the latter can (UK). We are of the considered view that the intention‑effects distinction is a sound jurisprudential basis on which to distinguish direct from indirect discrimination. This is for the reason that the most compelling feature of indirect discrimination, in our view, is the fact that it prohibits conduct, which though not intended to be discriminatory, has that effect. As the Canadian Supreme Court put it in Ontario Human Rights Commission v. Simpsons Sears Ltd., requiring proof of intention to establish discrimination puts an insurmountable barrier in the way of a complainant seeking a remedy. The above analysis authoritatively holds that the concept of indirect discrimination intends to prohibit any conduct which has the effect of discrimination, even if it was not intended so. The distinction is relevant in light of the definition of discrimination under Section 2 of the 2016 Act, as noted above. The usage of the word effect in Section 2 indicates that the Act is not only intended to curb direct discrimination, but is equally intended to prohibit any indirect discrimination which may result from inherent or institutional bias, stereotypes or a status‑quoist approach. The attitudinal and environmental barriers, that prevent the persons with disabilities from exercising their fundamental freedoms and human rights to the fullest, are a form of indirect discrimination., The impugned advertisement distinguishes the persons with disabilities from others, and puts a restriction on their potential to participate in the recruitment process to their full ability. The distinction is purely on the basis of disability. The advertisement has the effect of excluding the persons with disabilities from the race of recruitment, in complete violation of the mandatory reservation provision. It may be noted that an act of discrimination is not only a denial of the promise of equal protection before the law. Rather, every act of exclusion is an assault on the dignity of a person. More so, when the exclusion has the effect of compelling the persons with disabilities out of a race for gaining employment, without any fault of theirs. Instead of providing an equal space to grow, we have been compelling the persons with disabilities to prove, time and again, that they are capable of a lot more than we think., In light of the above discussion, we find the advertisement to be unsustainable. It is discriminatory and violative of the 2016 Act read with the 2017 Rules. Accordingly, we issue the following directions: i. The respondent shall conduct an audit of the total number of vacancies in the establishment and shall prepare a vacancy‑based roster as per Rule 11 of the 2017 Rules within three months from the date of this order. The respondent shall file an affidavit of the same along with a timeline of recruitment for filling the said vacancies; ii. If any vacancy, which ought to have been reserved in accordance with the 2016 Act, has already been filled by any person not falling in the reserved category due to failure of the respondent to reserve the same, the respondent shall adjust those vacancies from the unreserved pool of the available vacancies. Such vacancies shall be deemed to be unfilled and accordingly shall be considered to have been carried forward from the vacancies notified in the impugned advertisement; iii. The respondent shall implement the four percent reservation strictly in accordance with Section 34, with minimum one percent to be earmarked for the categories listed at clauses (a), (b), (c), (d) and (e) in Section 34; iv. The respondent shall compute the number of vacancies to be reserved for the persons with disabilities against the total number of vacancies in the cadre strength in each group, inclusive of both identified and unidentified posts; v. The final appointment shall be made against the identified posts, even if the actual number of persons with disabilities appointed at a given post exceeds four percent; vi. The respondent shall not create sub‑categories subject‑wise within a cadre. The vacancies shall be calculated on the total number of vacancies in a particular cadre and not on posts; vii. The respondent shall reserve the post of Principal for persons with benchmark disabilities in blind or low vision category at a minimum of one percent for that particular category; viii. No deviation from the statutory rule or exclusion of any post shall be made, except in accordance with the exemption clause and after proper notification by the appropriate government., In light of these directions, we dispose of the petition. No order as to costs., We express our thanks to learned counsels for the parties for their able assistance in the matter.
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Through: Mister Sunil Mehta and Mister Ishan Roy Choudhary, Advocates, versus Mister Sanjeev Mahajan, Advocate., The present matter is at the stage of final arguments. At joint consent of the counsels for the parties, the matter was listed on 16 April 2024., After the date was given and item number 11 was taken, the plaintiff Anita Kumari Gupta, who had joined through video conferencing, abused the Delhi High Court by saying that How Could Item No. 11 Be Taken Before Item No. 10 and also saying that Ye Saali Kya Kar Rahi Hai, What The F is Going On In This Court., Such aforesaid derogatory remarks made by the plaintiff Anita Kumari Gupta to denigrate the Delhi High Court are patently contemptuous and show the complete disregard to the dignity of the Delhi High Court, despite the fact that the counsels representing respective parties were present and had agreed to the date given that is 16 April 2024 for final arguments., Keeping in view such derogatory remarks lowering the dignity of the Delhi High Court, the Suo Moto Contempt is taken., Accordingly, the Show‑Cause Notice is issued to the plaintiff Anita Kumari Gupta, who is stated to be, at present, living in Sydney, Australia, as to why she should not be punished under the Contempt of Courts Act, 1971., The plaintiff is directed to appear before the Delhi High Court in person on the next date of hearing that is 16 April 2024., The Foreigners Regional Registration Office, Delhi is also directed to impound the passport/VISA on arrival of the plaintiff Anita Kumari Gupta in case she comes to India before the date fixed for hearing and she be not permitted to leave the country without the direction of the Delhi High Court., Learned counsel for the plaintiff has undertaken to convey this Order to his party., The High Commission of India at Canberra, Australia is also directed to communicate this Order to the plaintiff Anita Kumari Gupta, who is stated to be living at present in Sydney, Australia, through Consulate General of India, Sydney, Australia., List for final arguments on 16 April 2024. S. Sharma.
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Constitutional Writ Jurisdiction Appellate Side Present: The Honorable Justice Moushumi Bhattacharya, Writ Petition No. 22748 of 2022, Mannoj Kumar Jain & Anr. versus Union of India & Others. For the petitioners: Sudip Deb, Advocate; Riju Ghosh, Advocate; Sumitava Chakraborty, Advocate; Aranyak Saha, Advocate; Ita Ghosh, Advocate; Narendra Prasad Gupta, Advocate. For respondent No. 6: Suhrid Sur, Advocate. For respondent No. 8 (Bank): Shiv Mongal Singh, Advocate; Moriam Sanfui, Advocate. Last heard on 10 May 2023. Delivered by Justice Moushumi Bhattacharya., The petitioners initially filed the writ petition against the action taken by the Immigration Authority preventing the petitioners from travelling to the United Kingdom. An order was passed on 30 September 2022 directing the petitioners to add Indian Overseas Bank as a party respondent as the Supreme Court of India was informed that the petitioners had been prevented from travelling to the United Kingdom by reason of a Look Out Circular on the basis of a request made by the Indian Overseas Bank. The Indian Overseas Bank was thereafter added as respondent No. 8. The Vacation Bench passed an order on 18 October 2022 permitting the second petitioner to travel to the United Kingdom on account of the second petitioner's son pursuing his studies there., The petitioners filed an application for amendment of the writ petition for challenging the Look Out Circular issued by the Indian Overseas Bank and sought quashing of the same. By an order dated 28 February 2023, the petitioners were permitted to challenge the Look Out Circular issued at the instance of the Indian Overseas Bank/respondent No. 8. Affidavits are complete in the amendment application. The issue for adjudication is whether the Look Out Circular can continue to prevent the petitioners from travelling outside India or should be quashed on the facts brought to the notice of the Supreme Court of India., Petitioner No. 1 is a Director of Jain Infra Private Limited and Prakash Vanijya Private Limited; petitioner No. 2 is an erstwhile Director of Jain Infra and Prakash Vanijya. The material facts are as follows. The petitioners had obtained loans for the expansion of businesses from various banks. The leading bank in the consortium of eleven banks was the Central Bank of India. The petitioners have settled the claims of all the banks except respondent No. 8 (Indian Overseas Bank), Andhra Bank (now Union Bank of India) and IDBI Bank. The petitioners have also given a proposal to Andhra Bank and IDBI Bank for a One Time Settlement which is presently under consideration., The claim of Andhra Bank (Union Bank of India) is Rs. 12.5 crore, of which the petitioners have already paid Rs. 2.44 crore and have also paid Rs. 4.88 crore to IDBI Bank against the claim of Rs. 31.95 crore. The documents placed before the Supreme Court of India also show that the petitioners have paid Rs. 5.03 crore to the Indian Overseas Bank and that the bank has further realized Rs. 86 lakh by selling a property which was mortgaged to the consortium of banks. Although disputed, the balance One Time Settlement amount shown in the books of respondent No. 8 as on 18 August 2020 was Rs. 18.40 crore. The documents filed by respondent No. 8 also disclose that the total value of immovable securities given by the petitioners to respondent No. 8 is Rs. 5.45 crore. The outstanding amount of Rs. 5,07,07,38,897.67 shown by respondent No. 8 as on 30 September 2022 is disputed by the petitioners. The petitioners rely on the letter dated 18 August 2020 which is part of the amended writ petition and shows the balance One Time Settlement amount to be Rs. 18.40 crore., The contentions of the respondents, namely the Indian Overseas Bank and the Immigration Authority/Union of India, are that the writ petition as originally filed cannot be amended to seek the quashing of the Look Out Circular and further that the Central Bureau of Investigation should be impleaded as a necessary party to the proceedings. The argument for the first is that the scope of the writ petition has been expanded beyond the permissible limits of an amendment. The learned Additional Solicitor General appearing for the Immigration Authority submits that the Central Bureau of Investigation should be made a party respondent to the proceedings since cases are pending against the petitioners before the Special Central Bureau of Investigation Court among other cases., To answer the above point, the initial prayer in the writ petition was for permission to travel to the United Kingdom on account of the academic compulsion of the petitioner's son. At that stage the petitioners had been denied permission to travel and were de‑boarded from the aircraft without any reason being assigned. The order dated 18 October 2022 was passed on the unamended writ petition on the basis of the petitioners' specific requirement at that stage of the proceedings. During the course of the argument, however, the petitioners were informed of the Look Out Circular being issued at the behest of respondent No. 8, Indian Overseas Bank, as the reason for the denial of permission to travel. The petitioners therefore sought to amend the writ petition for setting aside the Look Out Circular., The sequence of facts indicates that the petitioners could not have challenged the Look Out Circular in the original writ petition since they became aware of the Look Out Circular and its originator (respondent No. 8/Indian Overseas Bank) only after filing the writ petition. The law with regard to permitting amendments is liberal because the purpose of an amendment under Order VI Rule 17 of the Code of Civil Procedure, 1908 is to determine the real questions of controversy between the parties. Hence, if the petitioners were confined to the original writ petition and its limited cause of action, the Look Out Circular which is the basis of the petitioners' travel curtailment would remain unchallenged. This Court is of the view that the objection to the amendment changing the nature and character of the original writ petition is untenable, illogical and contrary to law., With regard to the second objection, namely the addition of the Central Bureau of Investigation as a necessary party, this Court is not inclined to accept such view. The petitioners have not raised any grievance against the Central Bureau of Investigation either before or after the amendment. The originator of the Look Out Circular is admittedly respondent No. 8, Indian Overseas Bank, and not the Central Bureau of Investigation. It is also undisputed that the Central Bureau of Investigation has not curtailed or denied permission to the petitioners to travel outside India. In fact, the Central Bureau of Investigation Court granted permission to petitioner No. 1 to travel abroad as many as nineteen times after which the petitioners travelled outside India. There is no complaint that petitioner No. 1 has failed to comply with the conditions imposed for travelling abroad. The Central Bureau of Investigation has also not instituted any case against petitioner No. 2 at any point of time., Look Out Circulars are issued where the concerned persons are considered as flight risks, i.e., it is apprehended that they will fail to return to India. Usually the authority issuing the Circular takes recourse to a pending criminal case against the person or an ongoing proceeding where the continuous presence of the person is required. The apprehension is that the person cannot be allowed to travel since the person, presumably in search of a safe haven, will not return to India for the logical culmination of the proceedings. The recent trend, however, is of banks issuing Look Out Circulars as a recovery mechanism for outstanding monetary dues, fearing that the person may frustrate settlement of the dues by not returning to India. The logic put forth is that the person's bona fides in repaying the dues is best ensured if the person remains within the territory of India., The banks' apprehension may be founded on a real threat of the person leaving the country forever and the banks' loans being written off. This reasoning, however, cannot apply across the board for all borrowers without exception. Criteria for assessing the creditworthiness of a borrower and his or her bona fides for repayment must be determined on a case‑by‑case basis. The individual circumstances of a borrower's ability and willingness to pay, or the mode and manner of repayment, must be assessed before the fundamental right of a person to travel is denied. Look Out Circulars which have the effect of restricting a person's free movement and the right to travel should only be issued in exceptional circumstances. Look Out Circulars cannot be issued at random and at the lightest provocation, particularly at the instance of a bank seeking restriction on travel as a buffer to payments outstanding to the bank., The only acceptable logic, albeit with some effort, is that a person may flee the country and not return to repay his or her outstanding loan. This, however, cannot be the rule across the board and a borrower's credentials and circumstances for making payment must be taken into account. There is something draconian and uncivilised in a person being de‑boarded from an aircraft without being informed of the reason; most cases the person is simply handed a piece of paper and told at the last moment to de‑plane without being made aware of the reason. This is against the principles of natural justice and fair play in action where the fundamental right to travel and the right to life is inexorably compromised with impunity., The extreme repercussions of issuing a Look Out Circular must hence be regulated to give it form and certainty and not be made the norm for recovery of outstanding payments to the bank. Isolated and few and far between cases of persons fleeing the country cannot become the uniform rationale for issuing Look Out Circulars left, right and centre. The petitioners' efforts in the settlement of loans are a sure‑shot factor establishing the petitioners' case for relief as well as actual payments to the eight other banks including the lead bank of the consortium, as already stated above., The petitioners have also made payments to Andhra Bank (Union Bank of India) and IDBI Bank and have made a proposal to Indian Overseas Bank/respondent No. 8, the originator of the Look Out Circular. Indian Overseas Bank has already realized Rs. 86 lakh by selling a property mortgaged by the petitioners and the total value of immovable securities given to respondent No. 8 is Rs. 5.45 crore. Besides this, petitioner No. 1 was permitted to travel nineteen times by the Central Bureau of Investigation Court and there was no complaint that petitioner No. 1 failed to comply with the conditions imposed or return to India on the scheduled date. Petitioner No. 2 is not a party to the Central Bureau of Investigation proceedings. The petitioners also have assets in India and continue to be directors (at least one of them) of a company in India. Respondent No. 8 has not denied the fact of the petitioners making part payments to the said respondent or that the petitioners have settled the claims of the remaining banks of the consortium., The argument that the petitioners continue to be a threat to the economic interest of the country is far‑fetched and suffers from an absence of a rational basis. Although the quantum due to respondent No. 8 is disputed, Vishambhar Saran v. Bureau of Immigration, W.P. No. 10241(W) of 2020 and WPA 6670 of 2022 show that quantum alone cannot be the determining factor for preventing a person from leaving the country. Ghanshyam Pandey v. Union of India, 2023 SCC OnLine Del 936, cited on behalf of the respondent bank, involved facts which persuaded the Court to accept the contentions of the bank. The Court noted that the petitioner did not have any assets in India and his travel would impede the ongoing investigation. The petitioner was found to have avoided payments to the bank and there was reasonable apprehension that the petitioner was trying to flee the country., The consensus arrived at in the decisions shown on behalf of the petitioners is substantially the same, namely, that Look Out Circulars are coercive measures to make a person surrender to the investigating agency or a court of law: Karti P. Chidambaran v. Bureau of Immigration, Ministry of Home Affairs, Government of India, 2018 SCC OnLine Mad 2229. The decisions of two learned Single Judges of this Court in Vishambhar Saran v. Bureau of Immigration, W.P. No. 10241(W) of 2020 and WPA 6670 of 2022 proceed on the same basis. Both decisions rely on the sequence of Office Memoranda from 27 October 2010 and 2 2021 where the last version is that Look Out Circulars could be issued in exceptional cases not covered by the guidelines in the Office Memoranda and at the request of the authorities impugned in the Office Memorandum where the departure of the person concerned would be detrimental to the sovereignty, security or integrity of India or detrimental to bilateral relations with any country or to the strategic and/or economic interest of India or that the person may potentially indulge in any act of terrorism or offence against the State if such person is allowed to leave or where travel ought not be permitted in the larger public interest at any given point of time., The expressions used are from the dated 22 which has been extracted from one of the decisions referred to above. The Look Out Circular in the present case has not been produced by the respondent bank and hence the Supreme Court of India cannot refer to the contents of the Look Out Circular which has been issued against the petitioners. It is clear from the last Memoranda (presumably the last since none of the Office Memoranda have been placed before the Supreme Court of India) that a Look Out Circular can be issued on the specific grounds stated in sub‑paragraph L of the Office Memorandum of 2022. The ground used against the petitioners is evidently economic interests of India. There is no evidence that the petitioner leaving the country for a specific period of time would affect the economic interest of India. The petitioners have not been declared fraudsters or money launderers or even economic offenders., Apart from the reach of Look Out Circulars to cause immediate and irrevocable violation of a person's fundamental right of movement, Look Out Circulars have an inexplicably long shelf life. Sub‑paragraph J of the Office Memorandum dated 2021 mandates that a Look Out Circular shall remain in force until and unless a deletion request is received by the Bureau of Immigration from the originator and that no Look Out Circular shall be deleted automatically. Although these clauses cast an obligation on the originating agency to review the Look Out Circular on a quarterly or annual basis and submit proposals for deletion, this is sadly found to be absent in most cases. Once a Look Out Circular is issued it remains alive and kicking for almost all times to come. This spells dangerous repercussions on the person's right to freely move across and beyond the country and remain mobile., The banks have been given untrammeled powers to issue, use and exploit the lock‑in power of a Look Out Circular without sufficient recourse being provided in law to the person at the receiving end of it. The expressions detrimental to the economic interest of India in the concerned Office Memorandum are sufficient to sharpen the talons of a vindictive bank to clip the wings of vulnerable prey (in the metaphoric sense) should step in to check such unregulated abuse of power by banks where the facts demand relief., In view of the above reasons, respondent No. 8 Indian Overseas Bank cannot have any continuing reason to interfere with the petitioners' travel outside the country. The interference sought to be imposed by way of the Look Out Circular is arbitrary and without any rational basis. The Central Bureau of Investigation Courts, where the cases are pending, are free to pass orders or impose conditions as the courts may deem fit. The petitioners have not claimed any relief against those proceedings in the writ petition. This Court, however, sees no reason to allow the impugned Look Out Circular to remain or be used against the petitioners in the absence of any acceptable apprehension, let alone evidence shown on behalf of the bank., Writ Petition No. 22748 of 2022 is accordingly allowed by quashing the impugned Look Out Circular issued by respondent No. 8 Bank. Respondent No. 8 and the other respondents shall not continue to give any further effect to the Look Out Circular which would have the effect of preventing the petitioners from travelling outside India. The writ petition and all connected applications are disposed of accordingly. Urgent photostat certified copies of this judgment, if applied for, be supplied to the parties upon fulfillment of requisite formalities. Justice Moushumi Bhattacharya.
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FIR No. 218/2021 PS Model Town under Sections 302, 308, 365, 325, 323, 341, 506, 188, 269, 34, 120‑B of the Indian Penal Code and Sections 25, 54, 59 of the Arms Act. State versus Sushil Kumar, dated 09‑06‑2021. In the scenario of the COVID‑19 pandemic, the matter was taken up through video‑conferencing hearing in compliance with the directions of the Honourable High Court of Delhi and the directions of the Learned Principal District and Sessions Judge, North District, Rohini Courts, Delhi. Petitioner: Dr. Sharwan Kumar Bishnoi, Learned Appellant for the State. Counsel for the applicant: Mr. Pardeep Rana, Learned Counsel, assisted by associates. Investigating Officer Inspector Mangesh appeared through video conference. The application is filed on behalf of the accused, Sushin Kumar, son of Diwan Singh, seeking permission to be provided with supplements and special food in prison., The accused claims innocence and alleges false implication. He contends that he is an international wrestling hero, having won a bronze medal at the 2008 Olympic Games, a silver medal at the 2012 Olympic Games, and three gold medals at the Commonwealth Games. He is a recipient of the Padma Shri Award for his contributions to the nation. Relying on the fundamental presumption of innocence, he asserts that he should be allowed to continue his wrestling career, which depends on his physical strength and physique. Accordingly, he seeks permission to receive special foods and supplements containing protein, Omega‑3 capsules, joint‑ment capsules, pre‑workout C4, Hyde, Multivitamin GNC, exercise bands, etc., The Learned Appellant for the State, together with the reply of the Jail Superintendent, Tihar Jail, strongly opposes the application. It is argued that the desire for special foods or extra protein amounts to discrimination among prisoners. Allowing such applications could invite a flood of similar requests from other prisoners who can afford such diets. The requirement of a prisoner shall not be decided on his previous lifestyle, and food facilities are governed by the Delhi Prisons Rules, 2018. The State prays for dismissal of the application., The applicant relied on a Bombay High Court judgment, Asgar Yusuf Mukadam v. State of Maharashtra (2004) Criminal Law Journal 4312, and a Gujarat High Court judgment, Suresh Jugalkishore & Ors. v. Superintendent, Central Prison (1991) 2 Gujarat Law Reports 708. He also cited Sections 31 and 32 of the Prisoners Act, 1894, and Sections 40 and 41 of Chapter 9, Part IV of the Delhi Prisons Rules, 1988. The Delhi Prisons Act, 2000, applicable to the whole of the National Capital Territory of Delhi, has been in force since 14‑02‑2002. Under Section 73 (Repeal and Savings) of that Act, the Prisoners Act, 1894 was repealed, so its provisions are no longer applicable in Delhi. The contemporary provision regarding maintenance of prisoners from private sources is Section 31 of the Delhi Prisons Act, 2000, which permits a civil prisoner to purchase or receive food, clothing, bedding or other necessities from private sources subject to inspection and rules approved by the Inspector General. This provision applies only to civil prisoners, not to under‑trial prisoners. The Delhi Prisons Rules, 2018, effective from 01‑10‑2018, have repealed the Delhi Prisons Rules, 1988, under Section 1902 (Repealing and Saving). Nevertheless, the applicant continues to rely on the repealed 1988 rules, which is not permissible., The Jail Superintendent’s reply states that all under‑trial prisoners, including the applicant, have been provided food as per the Delhi Prisons Rules, 2018, and a balanced, healthy diet is being supplied without discrimination. The applicant has not disclosed any upcoming competition or provided supporting documents. The medical report indicates that the applicant does not suffer from any disease requiring food supplements or a special diet. The law is clear that all persons are equal before the law, and no special privilege may be granted based on rank or status. The basic nutritional needs of the applicant are being met under the Delhi Prisons Rules, 2018, and the requested special foods and supplements are merely desires, not essential needs., Accordingly, the application for special foods and supplements is not maintainable and is dismissed. The pending applications of the applicant before the Jail Authority are noted, and the Jail Authority is directed to inform the Honourable High Court of Delhi of the adjudication of those applications or any future applications, as per the rules. A copy of this order shall be given in handwritten form as prayed for.
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Civil Writ Jurisdiction Case No. 19702 of 2021 Akanksha Maviya Petitioner(s) versus the Union of India and Others Respondent(s)., Appearance for the Petitioners: Mr. Vishal Kumar Singh, Advocate; Mr. Akash Keshav, Advocate; Mr. Deepak Kumar Singh, Advocate; Mr. Shashwat, Advocate. Appearance for the Respondents: Mr. Dr. K. N. Singh, Additional Solicitor General; Mr. Kumar Priya Ranjan, Advocate., The proceedings of the Patna High Court are being conducted by Hon'ble the Chief Justice and Hon'ble Judges through video conferencing from their residential offices. The advocates and the staff joined the proceedings through video conferencing from their residences or offices., The Mental Health Care Act, 2017 (hereinafter referred to as the Act) was notified on 7 April 2017. The object and purpose of the Act is to provide mental healthcare and services for persons with mental illness and to protect, promote and fulfil the rights of such persons during the delivery of mental healthcare. The Act is divided into sixteen chapters. Chapter VIII specifically deals with the establishment and composition of the State Authority, to be termed as the State Mental Health Authority., The composition of the authority, as specified in Section 46, includes certain persons listed in the order of the Patna High Court Civil Writ Jurisdiction Case No. 19702 of 2021 dated 10 February 2022. The functions of the authority, as specified under Section 55 of the Act, are, inter alia, to develop quality and service provision norms for different types of mental health establishments in the State; supervise all mental health establishments in the State and receive complaints about deficiencies in provision of services; register clinical psychologists, mental health nurses and psychiatric social workers in the State to work as mental health professionals and publish the list of such registered professionals as may be specified by regulations of the State Authority; train all relevant persons including law enforcement officials, mental health professionals and other health professionals about the provisions and implementation of this Act; and discharge such other functions with respect to matters relating to mental health as the State Government may decide., Shockingly, as is now evident from the affidavit filed by the State, the said authority has not yet been constituted. It is not clear from the response whether there was a similar authority under the repealed Mental Health Act, 1987. It appears that the mental health of persons and the treatment of those in need, especially during the Covid-19 pandemic, is a low priority of the State Government., The purpose behind the enactment, as noted, is to provide mental healthcare and services to persons whose mental condition is determined under Chapter II of the Act. We observe that the step for establishing the authority commenced only in the year 2020 with the publication of an advertisement in a newspaper, and since then no substantive action has been taken to expedite the process. The affidavit filed does not disclose the time-limit within which the process would be completed., We refer to paragraph 8 of the affidavit dated 22 January 2022 filed by the Additional Director, Health, Bihar, Patna. The averments are vague; it is only stated that applications were received under the advertisement and are under consideration, but due to the Covid-19 pandemic effect, they are still in the process of finalisation. The stage of the process, the time required for completion, and the persons engaged in the selection process remain unanswered., We remind the Government that Covid-19 was declared a pandemic on 24 March 2020 and, despite the first, second and third waves, all institutions and organs of the State have become fully operational and functional. In this backdrop, we direct the Chief Secretary, Government of Bihar, to forthwith take all steps ensuring the establishment of the authority as stipulated under Section 45 of the Act. An affidavit of compliance indicating the latest status shall be filed by the Chief Secretary before the next date. The Chief Secretary is also directed to indicate the steps taken for complying with the other provisions of the statute, the deficiencies pointed out by the petitioner in the writ petition, and the suggestions given for proper and effective implementation on an expeditious basis., Shri S. D. Yadav, learned Additional Advocate General, undertakes to communicate the order during the course of the day.
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Arising Out of Police Station Case No. 163 Year 2020 Thana Warisaliganj District Nawada. Shiv Kumar son of Late Sanjay Pandit, resident of Village Baghi Chakwae, Police Station Warisaliganj, District Nawada, petitioner versus the State of Bihar, Financial Intelligence Unit (FIU), LIC Building, Connaught Place, New Delhi, and the Reserve Bank of India, Patna, Bihar. Appearance: For the petitioner: Mr Pramod Kumar Verma. For the opposite parties: Mr A G., The Patna High Court is dealing with cyber crimes in this proceeding and therefore is taking up a very disturbing matter. Mr Manu Tripurari, learned counsel, is appointed as Amicus Curiae in this case. The office is directed to add Economic Offences Unit, Instagram, Facebook, Twitter, YouTube, WhatsApp, Messenger, Meta as opposite parties numbered 4 to 11 to this application., A lawyer named Dinesh has been abusing the judges of the Supreme Court, including the then Chief Justice of India, Patna High Court judges, as well as the Union Law Minister and other dignitaries. This abuse has been posted on various social media platforms. The matter is recorded under Patna High Court Criminal Miscellaneous No. 38807 of 2020 (6) dated 15 December 2021. Though under the law the abuse is required to be reported to the police, the social media platforms have failed in their duty; therefore the Patna High Court is taking up the matter., The Government of Bihar issued memo number 13 dated 21 January 2021, by which the Additional Director General, Economic Offences Unit, Government of Bihar, Patna, issued a direction for taking action against persons making objectionable comments using foul language against government ministers, members of Parliament, members of Legislative Assembly and other government officials. Although this memo was issued on 21 January 2021, to date the Economic Offences Unit has failed to take any action against the persons making objectionable comments and posts on various social media platforms against the then Chief Justice of India, Supreme Court judges, Patna High Court judges including the former Chief Justice of Patna High Court and the then Union Law Minister., The Economic Offences Unit is reminded that it is duty bound to take suitable action against persons continuously abusing the Chief Justice of India, Supreme Court judges, Patna High Court judges including the former Chief Justice of Patna High Court and the then Union Law Minister on various social media platforms. Social media platforms have also failed in their duty to report such objectionable material to the Economic Offences Unit., The Economic Offences Unit is directed to register a First Information Report, constitute an expert team and investigate the various objectionable materials and offences committed by Dinesh, advocate, and take suitable action under law against him and persons involved in posting such objectionable posts. This action should be taken forthwith as the judiciary cannot be threatened by a single misdirected individual. The Economic Offences Unit will also investigate the involvement of other persons in this illegal activity., On 17 December 2021, the action taken report should be filed before the Patna High Court and an affidavit should be sworn by the Additional Director General himself, who will also be personally present before the Patna High Court. The report is to be put up on 17 December 2021 (Friday) at the Chamber through physical mode., Mr Pratap Sharma, practising as an advocate in this Court, has produced before the Patna High Court a First Information Report registered by him in the Rajiv Nagar Police Station, in which the local police have not taken any action. It is a cyber crime and the local police are not able to investigate the cyber crime; under such circumstances, the Patna High Court directs the Economic Offences Unit to investigate the Rajiv Nagar Police Station Case No. 229 of 2021 and take it to its logical conclusion. For that, the Economic Offences Unit is granted one month’s time to file a report in this case before the Patna High Court.
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A petition under section 9 of the Insolvency and Bankruptcy Code, 2016 read with rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 is filed in the matter of Chevrox Construction Private Limited (Operational Creditor) versus Bridge and Roof Co. (India) Limited (Corporate Debtor). The order was pronounced on 09 February 2024. The bench comprised Shri Rohit Kapoor, Member (Judicial), and Shri Balraj Joshi, Member (Technical). Appearances through video conferencing were made on behalf of the Operational Creditor by Mr. Rohit Mukherji, Advocate, and Ms. Labanyasree Sinha, Advocate; and on behalf of the Corporate Debtor by Ms. Neelina Chatterjee, Advocate, and Mr. Suvodeep Chakraborty, Advocate., National Company Law Tribunal convened through hybrid mode., This is a Company Petition filed under section 9 of the Insolvency and Bankruptcy Code, 2016 (the Code) by Chevrox Construction Private Limited (erstwhile MHS Infratech Private Limited), the Operational Creditor, a company incorporated under the Companies Act, seeking to initiate a Corporate Insolvency Resolution Process against Bridge and Roof Co. (India) Limited, the Corporate Debtor, based on a Board Resolution dated 08 August 2022., The Corporate Debtor is a company limited by shares incorporated on 16 January 1920, having Corporate Identification Number U27310WB1920GOI1003601, incorporated under the Companies Act with the Registrar of Companies, West Bengal. Therefore, this adjudicating authority has jurisdiction to deal with this petition., The petition was filed on 19 October 2022 before this adjudicating authority on the ground that the Corporate Debtor failed to make payment of a sum of Rs 4,47,90,393 (Rupees Four Crore Forty‑Seven Lakh Ninety Thousand Three Hundred Ninety‑Three only). The first date of default has been stated as 03 August 2021., The learned counsel for the Operational Creditor submitted that the Corporate Debtor was awarded a work order by GACL - NALCO Alkalies & Chemical Private Limited for construction of civil work scope 2 of an 800 TPD Caustic Soda project at Dahej, Gujarat. The Operational Creditor is not a party to the aforesaid work order and therefore is not aware of the exact date of the work order, but to the best of its knowledge the work order was issued in the latter part of 2018., Immediately on receipt of the work order from GACL, the Corporate Debtor contracted several portions of the work to the Operational Creditor through eleven different Letter of Intents (LOIs) spanning between 24 December 2018 and 27 February 2021. Along with the LOIs, the Corporate Debtor provided schedule rates on the basis of which the Operational Creditor was required to procure material and execute the work. No formal work order was issued by the Corporate Debtor and the work was executed only on the basis of the LOIs., The learned counsel further submitted that even though the Operational Creditor has completed the work awarded by the Corporate Debtor, the Corporate Debtor has not made payment to the Operational Creditor of the amount due and payable. The total debt due from the Corporate Debtor includes amounts payable under running account bills issued under the eleven LOIs, amount deducted as security deposit, amount withheld against the bank guarantee, balance payment of part rate for the work under LOI‑2, and amount deducted as security deposit for LOI‑1. The amount due under the eleven LOIs is Rs 1,06,90,281; the amount deducted as security deposit is Rs 2,32,77,700; the amount withheld against the bank guarantee is Rs 1,02,29,705; the balance payment of part rate for LOI‑2 is Rs 4,72,478; and the amount deducted as security deposit for LOI‑1 is Rs 1,20,229., The Operational Creditor sent a demand notice under section 8 of the Code on 02 September 2022, which was received by the Corporate Debtor on 08 September 2022., The learned counsel for the Corporate Debtor submitted that the Corporate Debtor was awarded a work order by GACL - NALCO Alkalies & Chemical Private Limited for construction of civil work scope 2 of an 800 TPD Caustic Soda project at Dahej, Gujarat. The Corporate Debtor further issued a Letter of Intent dated 24 December 2018 to MHS Infratech Private Limited (erstwhile name of the Operational Creditor) for execution of piling works with pile cap and necessary earth work, PCC, RCC, reinforcement, shuttering etc. for construction of civil workshop II for the 800 TPD Caustic Soda project at Dahej, Vadodara, Gujarat. The terms of the tender were provided in the Notice Inviting Tender (NIT) and the General Conditions of Contract (GCC), which were duly signed by the Operational Creditor., The Operational Creditor did not comply with the terms of the General Conditions of Contract. The learned counsel submitted that time of completion of the work was the essence of the contract in terms of Clause 8 of the GCC, which states that time of completion is the essence of the contract and the contractor shall strictly follow the completion schedule as specified or as prepared by the engineer‑in‑charge. If the contractor defaults in commencing the execution of the work, the company may, without prejudice to any other right or remedy, take any action it deems fit and proper against the contractor. The counsel also submitted that the Operational Creditor failed to allow the Corporate Debtor to inspect the work in compliance with Clause 18 of the GCC, which requires that all works embracing more than one process shall be subject to examination and approval at each stage, and that no work shall be covered up or put out of view without the approval of the engineer‑in‑charge., The learned counsel submitted that the Operational Creditor did not complete the work; therefore a Completion Certificate could not be provided as per Clause 22 of the GCC. Clause 22 requires the contractor to give notice of completion, after which the engineer‑in‑charge shall inspect the work and furnish a certificate of completion indicating the date of completion, defects to be rectified, and items for which payment shall be made at reduced rates. The contractor must also remove all scaffolding, sheds, surplus materials, and clean the premises before the certificate is issued. The counsel further relied on Clause 24 of the GCC, which states that the Operational Creditor is liable for a Defects Liability Period of twelve months from the date of issuance of the Completion Certificate. Since the Operational Creditor has not received a Completion Certificate, the Defects Liability Period has not been triggered., The counsel also submitted that the Operational Creditor failed to submit the final bill for payment within three months of physical completion of the work in compliance with Clause 38 of the GCC, which requires final bills to be submitted within three months and no further claims to be made thereafter. As per Clause 37 of the GCC, the Engineer‑in‑Charge was to certify the documents with respect to the completion of work. The Corporate Debtor issued a letter dated 26 November 2019 informing the Operational Creditor that it had failed to comply with the terms of the contract by not attaching the necessary details with the running account bill. The Corporate Debtor also alleged that the Operational Debtor failed to comply with various provisions of the contract in late October 2019, causing hardship with the principal employer (GACL) and its consultant., Despite repeated requests, the Operational Creditor failed to regularize the documents in support of the running account bills and statutory documents, which resulted in reduced deployment of labor at the site and loss to the Corporate Debtor due to delayed work. The Operational Creditor placed its resources at the site from May 2020 but delayed the work and did not complete even 80 % of the work. Consequently, the Corporate Debtor has not issued a Completion Certificate, constituting non‑compliance with Clause 16.1 of the special conditions of contract. The Corporate Debtor has reconciled pending running account bills up to August 2021 and made a payment of Rs 49,01,55,588 along with GST at 18 %. The principal employer (GACL) is required to issue a final Completion Certificate to the Corporate Debtor, after which the security deposit of the Corporate Debtor can be released within 24 months from the date of the certificate. The Corporate Debtor has not complied with this term, so the security deposit has not been released. The Operational Creditor has not submitted final bills with all original and relevant documents, and therefore the Corporate Debtor has not submitted final bills to the principal employer., The learned counsel appearing on behalf of the Operational Creditor and the Corporate Debtor were heard and the records were perused. The Operational Creditor has claimed the amount for the services along with the security deposit. On perusal of the documents filed, there is no mention of interest being accrued on the security deposit, indicating that it is an interest‑free security deposit. Hence, the security interest would also amount to operational debt. Reliance is placed on the judgment of the National Company Law Appellate Tribunal in Vibrus Homes Private Limited v. Ashimara Housing Private Limited (2022) NCLAT, wherein the Tribunal held that an interest‑free security deposit is an operational debt., The main issue is whether there is a pre‑existing dispute. The Corporate Debtor referred to an email dated 26 November 2019 indicating non‑compliance of documents, and a further email dated 30 May 2020 raising issues of scattered steel, theft of reinforcement steel, use of higher diameter reinforcement, and lack of BBS for scrap generation. No dispute was raised thereafter, and the Corporate Debtor made payments as shown in the records after May 2020. There has been no reply or detailing of any dispute after receipt of the section 8 demand notice. The Corporate Debtor raised an argument with respect to one running account bill, but even after the dispute was raised, payments continued, indicating that there is in fact no genuine pre‑existing dispute. The Supreme Court of India in Mobilox Innovations Private Limited v. Kirusa Software Private Limited [(2018) 1 SCC 353] held that the adjudicating authority, when examining an application under section 9, must determine (i) whether there is an operational debt exceeding Rs 1 lakh, (ii) whether the documentary evidence shows that the debt is due and payable and has not been paid, and (iii) whether there exists a dispute between the parties or a pending suit or arbitration proceeding. If any of these conditions is lacking, the application must be rejected., It is clear that once the operational creditor has filed an application, the adjudicating authority must reject the application under section 9(5)(2)(d) if a notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility. The authority must see whether there is a plausible contention requiring further investigation and that the dispute is not a patently feeble legal argument or an unsupported assertion of fact. A dispute should be justified and supported by proper documentation, which is absent in this case. In an email dated 03 September 2020, the Corporate Debtor accepted that the dues up to 25 June 2020 amounted to Rs 1.58 crore and that the later period bills were under consideration. No objection was raised despite several correspondences from the Operational Creditor., In view of the observations, there is a debt and default. The Corporate Debtor is a Government Company, as 99.35 % of its shares are held by the Government of India. The Insolvency and Bankruptcy Code makes no distinction between a Government Company and a private or public company for the purposes of insolvency resolution under sections 7, 9 or 10, and therefore the Corporate Debtor falls within the purview of the Code. The adjudicating authority is satisfied that the Corporate Debtor has defaulted in repayment of its debt to the Operational Creditor and that the petition is complete in all respects and meets all requirements stipulated under the Code., Accordingly, the application Corporate Petition (Insolvency and Bankruptcy) No. 311/KB/2022 filed by Chevrox Construction Private Limited (Operational Creditor) under section 9 of the Code read with rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 for initiating a Corporate Insolvency Resolution Process against Bridge and Roof Co. (India) Limited, the Corporate Debtor, is admitted. There shall be a moratorium under section 14 of the Insolvency and Bankruptcy Code effective from the date of this order until the completion of the Corporate Insolvency Resolution Process or until the adjudicating authority approves a resolution plan under subsection (1) of section 31 of the Code or passes an order for liquidation of the Corporate Debtor under section 33 of the Code, as the case may be. A public announcement of the Corporate Insolvency Resolution Process shall be made immediately as specified under section 13 of the Code read with regulation 6 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. Mr. Subodh Kumar Agrawal, having registration number IBBI/IPA 001/IP‑P00087/2017‑18/10183 and email subodhka@gmail.com, is hereby appointed as Interim Resolution Professional of the Corporate Debtor to carry out the functions as per the Code subject to submission of a valid Authorisation of Assignment in terms of regulation 7A of the Insolvency and Bankruptcy Board of India (Insolvency Professional) Regulations, 2016.
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The fee payable to the Interim Resolution Professional or the Resolution Professional, as the case may be, shall be compliant with such Regulations, Circulars and Directions as may be issued by the Insolvency and Bankruptcy Board of India (IBBI). The Interim Resolution Professional shall carry out his functions as contemplated by sections 15, 17, 18, 19, 20 and 21 of the Insolvency and Bankruptcy Code (IBC). During the Corporate Insolvency Resolution Process (CIRP) period, the management of the Corporate Debtor shall vest in the Interim Resolution Professional or the Resolution Professional, as the case may be, in terms of section 17 of the IBC. The officers and managers of the Corporate Debtor shall provide all documents in their possession and furnish every information in their knowledge to the Interim Resolution Professional within one week from the date of receipt of this Order, in default of which coercive steps will follow., The Interim Resolution Professional/Resolution Professional shall submit to the National Company Law Tribunal periodical reports with regard to the progress of the CIRP in respect of the Corporate Debtor. The Operational Creditor shall initially deposit a sum of Rs 3,00,000 (Rupees three lakh only) with the Interim Resolution Professional to meet the expenses arising out of issuing public notice and inviting claims. These expenses are subject to approval by the Committee of Creditors (CoC). Further, the fees of the Interim Resolution Professional will be subject to the approval of the CoC in accordance with Notification No. IBBI/2022-23/GN/REG091 dated 13 September 2022, issued by the Insolvency and Bankruptcy Board of India, as published in the Official Gazette., In terms of section 7(5)(a) of the IBC, the Court Officer of the National Company Law Tribunal is hereby directed to communicate this Order to the Operational Creditor, the Corporate Debtor and the Interim Resolution Professional by Speed Post, email and WhatsApp, Chevrox Construction Private Limited and Bridge and Roof Co. (India) Limited immediately, and in any case not later than two days from the date of this Order. Additionally, the Operational Creditor shall serve a copy of this Order on the Interim Resolution Professional and on the Registrar of Companies, West Bengal, Kolkata by all available means for updating the Master Data of the Corporate Debtor. The Registrar of Companies shall send a compliance report in this regard to the Registry of the National Company Law Tribunal within seven days from the date of receipt of a copy of this Order., CP (IB) No. 311/KB/2022 is to come up on 13 March 2024 for filing the progress report. A certified copy of this Order may be issued, if applied for, upon compliance with all requisite formalities.
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Reportable Writ Petition (C) No. 116 of 2019\nForum for People's Collective Efforts (FPCE) and another (Petitioners) versus State of West Bengal and another (Respondents)\nDr. Justice Dhananjaya Y. Chandrachud (Chairman) – The challenge – Legislative history – Real Estate (Regulation and Development) Act (RERA) – the legislative process – Salient features of RERA – Salient provisions of West Bengal Housing Industry Regulation Act (WB‑HIRA) – RERA and WB‑HIRA provisions at variance – Submissions of the petitioners – Submissions of the Union of India – Submissions of the State of West Bengal – Analysis – Entry 24, List II West Bengal's housing industry defence – The constitutional scheme of Article 254 and repugnancy – Meaning of \is in addition to and not in derogation of any other law\ – Meaning of \law for the time being in force\ – Knitting it together – Lack of Presidential assent for WB‑HIRA – Conclusion, The constitutional validity of the West Bengal Housing Industry Regulation Act, 2017 (WB‑HIRA) is challenged in a petition under Article 32 of the Constitution of India. The basis of the challenge is that (i) both WB‑HIRA and the Parliamentary enactment Real Estate (Regulation and Development) Act, 2016 (RERA) relate to the legislative subjects contained in Entries 6 and 7 of the Concurrent List (also referred to as List III) of the Seventh Schedule; (ii) WB‑HIRA has neither been reserved for nor received Presidential assent under Article 254(2); (iii) the State enactment contains certain provisions which are either directly inconsistent with the corresponding provisions of the Central enactment or a virtual replica of the Central enactment; and (iv) Parliament having legislated on a field covered by the Concurrent List, it is constitutionally impermissible for the State Legislature to enact a law over the same subject matter by setting up parallel legislation., Before Parliament enacted RERA in 2016, the states had enacted several laws to regulate the relationship between promoters and purchasers of real estate. Among them was the West Bengal (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993 (the West Bengal 1993 Act), which was reserved for and received Presidential assent and was published in the Official Gazette on 9 March 1994. Other states enacted similar laws, including the Maharashtra Housing (Regulation and Development) Act, 2012 (the Maharashtra Act), which received Presidential assent on 2 February 2014, and the Kerala Real Estate (Regulation and Development) Act, 2015 (the Kerala Act), which was enacted by the State Legislative Assembly on 3 February 2016. The Bill for RERA was introduced in the Rajya Sabha on 14 August 2013, passed by the Rajya Sabha on 10 March 2016 and by the Lok Sabha on 15 March 2016. The President gave assent on 25 March 2016 and the Act was published in the Official Gazette on 26 March 2016. RERA was partially enforced on 1 May 2016 and the remaining provisions were enforced on 19 April 2017. The Maharashtra Act was repealed by the Maharashtra Housing (Regulation and Development) Act, 2012 Repeal Act, and the Kerala Act was repealed by the Kerala Real Estate (Regulation and Development) Repeal Act, 2017., In West Bengal, draft rules under RERA were framed on 18 August 2016 but no further progress was made. On 16 August 2017, the motion for passing the WB‑HIRA Bill was adopted in the State Legislative Assembly. The State enactment received the assent of the Governor of West Bengal on 17 October 2017. Inter alia, WB‑HIRA repealed the West Bengal 1993 Act. The remaining provisions of WB‑HIRA were enforced by a notification dated 29 March 2018 issued by the Governor of West Bengal in exercise of the power conferred by subsection (3) of section 1 of WB‑HIRA. On 8 June 2018, the State framed rules under WB‑HIRA., The Standing Committee on Urban Development (2012‑2013) of the Fifteenth Lok Sabha submitted its Thirtieth Report on the Real Estate (Regulation and Development) Bill, 2013 (the RERA Bill 2013) pertaining to the Ministry of Housing and Urban Poverty Alleviation. While adopting the draft report on 12 February 2014, the Committee emphasized the need for enacting comprehensive legislation to regulate the real estate sector. The report noted that over the past few decades the demand for housing has increased manifold, yet government schemes have been unable to cope with the rising demand. Private players have taken over the sector with little concern for consumers, leading to high interest rates, higher EMIs and a largely unregulated market. Consumers therefore lack complete information and cannot enforce accountability against builders and developers. The Committee observed that the real estate sector plays a catalytic role in fulfilling the need for housing and infrastructure, but suffers from lack of professionalism, standardisation and adequate consumer protection. The Consumer Protection Act, 1986 provides only curative relief and is insufficient to address all concerns of buyers and promoters., The RERA Bill 2013 was referred to a twenty‑one‑member Select Committee on a motion adopted by the House on 6 May 2015. The Committee held seventeen sittings across the country and heard 445 persons representing consumers, resident welfare associations, promoter‑builders, banks, financial institutions, state housing ministries, law firms and independent experts. It received 273 written suggestions from the public and visited Kolkata, Bengaluru, Mumbai and Shimla to interact with stakeholders. The Committee noted that many consumers were duped by unscrupulous promoters and were forced to run from pillar to post to obtain possession of apartments or refunds. The Committee recommended, among other points, that (a) registration of projects should occur only after thorough scrutiny; (b) projects should commence only after obtaining all approvals; (c) advance payment should not exceed one lakh rupees or five percent of the cost of the apartment, whichever is less; (d) a model agreement for sale should be appended to the Bill; (e) in case of default, refunds should be at market rate with interest; (f) carpet area should be clearly defined and not linked to the National Building Code; (g) the definition of \advertisement\ should be exhaustive and the definition of \allottee\ should include associations of allottees; (h) comprehensive information on clearances, promoter credentials, pending cases, past defaults, water‑harvesting, environmental impact, net worth and financing pattern should be disclosed; (i) at least seventy percent of the amount realised from allottees should be kept in a separate account; (j) liability for structural defects should be increased from two to five years; (k) abandoned projects should attract heavy penalties; (l) penalties on allottees for default should not exceed those on promoters; (m) no exemption should be granted based on area or number of flats; (n) timely formation of allottees' association and handover of common areas; and (o) parking for domestic help should follow the Supreme Court judgment., The Real Estate (Regulation and Development) Bill, 2016 (RERA Bill 2016) was introduced following the Select Committee report. Its Statement of Objects and Reasons emphasised that the sector, while growing significantly, remains largely unregulated, lacking professionalism, standardisation and adequate consumer protection. The Bill proposes the establishment of a Real Estate Regulatory Authority to ensure efficient and transparent sale of plots, apartments or buildings and to protect consumer interests, as well as a Real Estate Appellate Tribunal for speedy dispute redressal. The Bill seeks to create symmetry of information between promoters and purchasers, transparency of contractual conditions, minimum standards of accountability and a fast‑track dispute resolution mechanism, thereby inducing professionalism and standardisation for accelerated growth and investment., The long title of the West Bengal Housing Industry Regulation Act describes its purpose as: ‘An Act to establish the Housing Industry Regulatory Authority for regulation and promotion of the housing sector and to ensure sale of plot, apartment or building, or sale of real estate project, in an efficient and transparent manner and to protect the interest of consumers in the real estate sector and to establish a mechanism for speedy dispute redressal and for matters connected therewith or incidental thereto.’ Its preamble reiterates the same objective. The State enactment largely mirrors RERA; most substantive provisions are identical, indicating that the WB‑HIRA Bill was drafted on the basis of RERA as a model. A comparative table shows that definitions of \advertisement\, \allottee\, \apartment\, \building\, \carpet area\ and other key terms are the same in both statutes, confirming the substantial overlap between the two laws., In conclusion, the challenge before the Supreme Court of India is whether the West Bengal Housing Industry Regulation Act, 2017, which was enacted without Presidential assent and contains provisions that are either directly inconsistent with or a replica of the Real Estate (Regulation and Development) Act, 2016, is constitutionally valid under Article 254 of the Constitution. The petitioners argue that the State law is repugnant to the Central law and therefore void, while the Union of India and the State of West Bengal contend that the enactment is a valid exercise of the State's legislative competence over the housing sector.
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Definition of common areas means (i) the entire land for the real estate project or, where the project is developed in phases and registration under this Act is sought for a phase, the entire land for that phase; (ii) the staircases, lifts, staircase and lift lobbies, fire escapes, and common entrances and exits of buildings; (iii) the common basements, terraces, parks, play areas, open parking areas and common storage spaces; (iv) the premises for the lodging of persons employed for the management of the property including accommodation for watch and ward staff or for the lodging of community service personnel; (v) installations of central services such as electricity, gas, water and sanitation, air conditioning and incinerating system for water conservation and renewable energy; (vi) the water tanks, sumps, motors, fans, compressors, ducts and all apparatus connected with installations for common use; (vii) all community and commercial facilities as provided in the real estate project; (viii) all other portions of the project necessary or convenient for its maintenance, safety and common use., Definition of promoter means (i) a person who constructs or causes to be constructed an independent building or a building consisting of apartments, or converts an existing building or part thereof into apartments, for the purpose of selling all or some of the apartments to other persons and includes his assignees; (ii) a person who develops land into a project, whether or not the person also constructs structures on any of the plots, for the purpose of selling to other persons all or some of the plots in the said project, whether with or without structures thereon; (iii) any development authority or any other public body in respect of allottees of (a) buildings or apartments constructed by such authority or body on lands owned by them or placed at their disposal by the Government; or (b) plots owned by such authority or body or placed at their disposal by the Government, for the purpose of selling all or some of the apartments or plots; (iv) an apex State level cooperative housing finance society and a primary cooperative housing society which constructs apartments or buildings for its members or in respect of the allottees of such apartments or buildings; (v) any other person who acts as a builder, coloniser, contractor, developer, estate developer or by any other name or claims to be acting as the holder of a power of attorney from the owner of the land on which the building or apartment is constructed or plot is developed for sale; (vi) such other person who constructs any building or apartment for sale to the general public. Explanation: For the purposes of this clause, where the person who constructs or converts a building into apartments or develops a plot for sale and the persons who sell apartments or plots are different persons, both shall be deemed promoters and shall be jointly liable for the functions and responsibilities specified under this Act or the rules and regulations made thereunder., Definition of real estate agent means any person who negotiates or acts on behalf of one person in a transaction of transfer of his plot, apartment or building, as the case may be, in a real estate project, by way of sale, with another person or transfer of plot, apartment or building, as the case may be, of any other person to him and receives remuneration, fees or any other charges for his services whether as commission or otherwise and includes a person who introduces, through any medium, prospective buyers and sellers to each other for negotiation for sale or purchase of plot, apartment or building, and includes property dealers, brokers, middlemen by whatever name called., Definition of real estate project means the development of a building or a building consisting of apartments, or converting an existing building or part thereof into apartments, or the development of land into plots or apartments, as the case may be, for the purpose of selling all or some of the said apartments or plots or building, as the case may be, and includes the common areas, the development works, all improvements and structures thereon, and all easements, rights and appurtenances belonging thereto., Prior registration of real estate project with Real Estate Regulatory Authority: No promoter shall advertise, market, book, sell or offer for sale, or invite persons to purchase in any manner any plot, apartment or building, as the case may be, in any real estate project or part of it, in any planning area, without registering the real estate project with the Real Estate Regulatory Authority established under this Act. Provided that projects ongoing on the date of commencement of this Act and for which the completion certificate has not been issued, the promoter shall make an application to the Authority for registration of the said project within three months from the date of commencement of this Act. Provided further that if the Authority thinks necessary, in the interest of allottees, for projects which are developed beyond the planning area but with the requisite permission of the local authority, it may, by order, direct the promoter of such project to register with the Authority, and the provisions of this Act or the rules and regulations made thereunder shall apply to such projects from that stage of registration. Notwithstanding anything contained in subsection (1), no registration of the real estate project shall be required (a) where the area of land proposed to be developed does not exceed five hundred square metres or the number of apartments proposed to be developed does not exceed eight inclusive of all phases; provided that, if the appropriate Government considers it necessary, it may reduce the threshold below five hundred square metres or eight apartments, as the case may be, for exemption from registration under this Act; (b) where the promoter has received a completion certificate for a real estate project prior to commencement of this Act; (c) for the purpose of renovation, repair or redevelopment which does not involve marketing, advertising, selling or new allotment of any apartment, plot or building, as the case may be, under the real estate project. Explanation: For the purpose of this section, where the real estate project is to be developed in phases, every such phase shall be considered a stand‑alone real estate project, and the promoter shall obtain registration under this Act for each phase separately., Application for registration of real estate projects: Every promoter shall make an application to the Authority for registration of the real estate project in such form, manner, within such time and accompanied by such fee as may be specified by the regulations made by the Authority. The promoter shall enclose the following documents along with the application: (a) brief details of his enterprise including its name, registered address, type of enterprise (proprietorship, societies, partnership, companies, competent authority), and the particulars of registration, and the names and photographs of the promoter; (b) brief detail of the projects launched by him in the past five years, whether already completed or being developed, including the current status, any delay in completion, details of cases pending, details of type of land and payments pending; (c) an authenticated copy of the approvals and commencement certificate from the competent authority obtained in accordance with the applicable laws for the real estate project mentioned in the application, and where the project is proposed to be developed in phases, an authenticated copy of the approvals and commencement certificate for each such phase; (d) the sanctioned plan, layout plan and specifications of the proposed project or the phase thereof, and the whole project as sanctioned by the competent authority; (e) the plan of development works to be executed in the proposed project and the proposed facilities to be provided thereof including fire‑fighting facilities, drinking water facilities, emergency evacuation services, use of renewable energy; (f) the location details of the project, with clear demarcation of land dedicated for the project along with its boundaries including the latitude and longitude of the end points; (g) proforma of the allotment letter, agreement for sale, and the conveyance deed proposed to be signed with the allottees; (h) the number, type and carpet area of apartments for sale in the project along with the area of exclusive balcony or verandah areas and exclusive open terrace areas, if any; (i) the number and areas of garages for sale in the project; (j) the names and addresses of his real estate agents, if any, for the proposed project; (k) the names and addresses of the contractors, architect, structural engineer, if any and other persons concerned with the development of the proposed project; (l) a declaration, supported by an affidavit, signed by the promoter or any person authorised by the promoter, stating: (A) that he has a legal title to the land on which the development is proposed along with legally valid documents; (B) that the land is free from all encumbrances, or details of any encumbrances, rights, title, interest or name of any party in or over such land; (C) the time period within which he undertakes to complete the project or phase thereof; (D) that seventy percent of the amounts realised for the real estate project from the allottees shall be deposited in a separate account to be maintained in a scheduled bank to cover the cost of construction and land cost and shall be used only for that purpose, provided that the promoter shall withdraw amounts from the separate account in proportion to the percentage of completion of the project, after certification by an engineer, an architect and a chartered accountant that the withdrawal is proportionate; (E) that he shall take all pending approvals from the competent authorities; (F) that he has furnished such other documents as may be prescribed by the rules or regulations made under this Act; and (m) such other information and documents as may be prescribed. The Authority shall operationalise a web‑based online system for submitting applications for registration of projects within one year from the date of its establishment., Grant of registration: On receipt of the application under sub‑section (1) of section 4, the Authority shall, within thirty days, (a) grant registration subject to the provisions of this Act and the rules and regulations made thereunder, and provide a registration number, including a login ID and password to the applicant for accessing the website of the Authority, to create his web page and to fill therein the details of the proposed project; or (b) reject the application for reasons recorded in writing, if the application does not conform to the provisions of this Act or the rules or regulations made thereunder, provided that no application shall be rejected unless the applicant has been given an opportunity of being heard. If the Authority fails to grant registration or reject the application as provided under sub‑section (1), the project shall be deemed to have been registered, and the Authority shall, within seven days of the expiry of the thirty‑day period, provide a registration number and a login ID and password to the promoter for accessing the website of the Authority and to create his web page and to fill therein the details of the proposed project. The registration granted under this section shall be valid for a period declared by the promoter for completion of the project or phase thereof., Extension of registration: The registration granted under section 5 may be extended by the Authority on an application made by the promoter due to force majeure, in such form and on payment of such fee as may be specified by regulations made by the Authority. Provided that the Authority may, in reasonable circumstances, without default on the part of the promoter, based on the facts of each case and for reasons recorded in writing, extend the registration granted to a project for such time as it considers necessary, which in aggregate shall not exceed one year. No application for extension of registration shall be rejected unless the applicant has been given an opportunity of being heard. Explanation: For the purpose of this section, the expression “force majeure” shall mean a case of war, flood, drought, fire, cyclone, earthquake or any other calamity caused by nature affecting the regular development of the real estate project., Revocation of registration: The Authority may, on receipt of a complaint, suo motu, or on the recommendation of the competent authority, revoke the registration granted under section 5 after being satisfied that (a) the promoter defaults in doing anything required by or under this Act or the rules or regulations made thereunder; (b) the promoter violates any of the terms or conditions of the approval given by the competent authority; (c) the promoter is involved in any kind of unfair practice or irregularities. Explanation: For the purposes of this clause, “unfair practice” means a practice which, for the purpose of promoting the sale or development of any real estate project, adopts any unfair method or deceptive practice including (A) making any statement, whether in writing or by visible representation, which (i) falsely represents that the services are of a particular standard or grade; (ii) represents that the promoter has approval or affiliation which such promoter does not have; (iii) makes a false or misleading representation concerning the services; (B) permitting the publication of any advertisement or prospectus of services that are not intended to be offered; (C) indulging in any fraudulent practices. The registration shall not be revoked unless the Authority has given the promoter not less than thirty days notice in writing stating the grounds for revocation and has considered any cause shown by the promoter within that notice period. The Authority may, instead of revoking the registration, permit it to remain in force subject to further terms and conditions it deems fit in the interest of the allottees, and such terms shall be binding upon the promoter. Upon revocation, the Authority shall (a) debar the promoter from accessing its website in relation to that project, specify his name in the list of defaulters and display his photograph on its website, and inform other Real Estate Regulatory Authorities in other States and Union territories; (b) facilitate the remaining development works to be carried out in accordance with the provisions of section 8; (c) direct the bank holding the project account, as specified under sub‑clause (D) of clause (I) of sub‑section (2) of section 4, to freeze the account and thereafter take further necessary actions, including consequent defreezing, to facilitate the remaining development works; (d) issue such directions as it may deem necessary to protect the interest of allottees or the public., Obligation of Authority consequent upon lapse of or on revocation of registration: Upon lapse of the registration or on revocation of the registration under this Act, the Authority may consult the appropriate Government to take such action as it deems fit, including carrying out the remaining development works by a competent authority or by the association of allottees or in any other manner as determined by the Authority, provided that no direction, decision or order of the Authority under this section shall take effect until the expiry of the period of appeal provided under the provisions of this Act. Further, in case of revocation of registration of a project, the association of allottees shall have the first right of refusal for carrying out the remaining development works., Registration of real estate agents: No real estate agent shall facilitate the sale or purchase of, or act on behalf of any person to facilitate the sale or purchase of, any plot, apartment or building, as the case may be, in a real estate project or part of it being the part of the real estate project registered under section 3, being sold by the promoter in any planning area, without obtaining registration under this section. Every real estate agent shall make an application to the Authority for registration in such form, manner, within such time and accompanied by such fee and documents as may be prescribed. The Authority shall, within such period, upon satisfaction of the fulfillment of prescribed conditions, (a) grant a single registration to the real estate agent for the entire State or Union territory, as the case may be; or (b) reject the application for reasons recorded in writing, if the application does not conform to the provisions of the Act or the rules or regulations made thereunder, provided that no application shall be rejected unless the applicant has been given an opportunity of being heard. Where the period specified under sub‑section (3) expires without any communication about deficiencies or rejection, the applicant shall be deemed to have been registered. Every registered real estate agent shall be granted a registration number by the Authority, which shall be quoted by the agent in every sale facilitated under this Act. Each registration shall be valid for such period as may be prescribed and shall be renewable on payment of the prescribed fee. Where a registered real estate agent commits breach of any conditions or any other terms and conditions specified under this Act or the rules, or where the Authority is satisfied that the registration was obtained through misrepresentation or fraud, the Authority may, without prejudice to other provisions, revoke or suspend the registration for such period as it thinks fit, provided that no revocation or suspension shall be made unless an opportunity of being heard has been given to the agent., Functions of real estate agents: Every real estate agent registered under section 9 shall (a) not facilitate the sale or purchase of any plot, apartment or building, as the case may be, in a real estate project or part of it being sold by the promoter in any planning area which is not registered with the Authority; (b) maintain and preserve books of account, records and documents as may be prescribed; (c) not involve himself in any unfair trade practices, namely (i) making any statement, whether orally, in writing or by visible representation, which (A) falsely represents that the services are of a particular standard or grade; (B) represents that the promoter or himself has approval or affiliation which such promoter or himself does not have; (C) makes a false or misleading representation concerning the services; (ii) permitting the publication of any advertisement of services that are not intended to be offered; (d) facilitate the possession of all information and documents to which the allottee is entitled at the time of booking of any plot, apartment or building; (e) discharge such other functions as may be prescribed., Functions and duties of promoter: Upon receiving his login ID and password, the promoter shall create his web page on the website of the Authority and enter all details of the proposed project as provided under section 4, for public viewing, including (a) details of the registration granted by the Authority; (b) quarterly up‑to‑date list of number and types of apartments or plots booked; (c) quarterly up‑to‑date list of number of garages booked; (d) quarterly up‑to‑date list of approvals taken and approvals pending subsequent to commencement certificate; (e) quarterly up‑to‑date status of the project; and (f) such other information and documents as may be specified by the regulations made by the Authority. The advertisement or prospectus issued by the promoter shall mention prominently the website address of the Authority, include the registration number obtained from the Authority and such other matters incidental thereto. At the time of booking and issue of allotment letter, the promoter shall make available to the allottee (a) sanctioned plans, layout plans and specifications approved by the competent authority, displayed at the site or as specified by the Authority; (b) the stage‑wise time schedule of completion of the project, including provisions for civic infrastructure such as water, sanitation and electricity. The promoter shall be responsible for all obligations, responsibilities and functions under this Act or the rules and regulations made thereunder or to the allottees as per the agreement for sale, or to the association of allottees, till the conveyance of all apartments, plots or buildings to the allottees, or the common areas to the association of allottees or the competent authority. The responsibility with respect to structural defects shall continue even after conveyance. The promoter shall obtain the completion certificate or occupancy certificate, or both, from the relevant competent authority and make it available to the allottees or the association of allottees; shall obtain the lease certificate where the project is on leasehold land and make it available to the association of allottees; shall provide and maintain essential services on reasonable charges till the association of allottees takes over maintenance; shall enable the formation of an association or society or cooperative society of the allottees, or a federation thereof, within three months of the majority of allottees having booked their plot or apartment; shall execute a registered conveyance deed of the apartment, plot or building in favour of the allottee along with the undivided proportionate title in the common areas to the association of allottees or competent authority; shall pay all outgoings until he transfers physical possession of the project to the allottee or association of allottees, including land cost, ground rent, municipal or other local taxes, charges for water or electricity, maintenance charges, mortgage loan and interest, and shall remain liable for any unpaid outgoings or penalties after transfer; shall not mortgage or create a charge on any apartment, plot or building after executing an agreement for sale, and if any such mortgage or charge is created, it shall not affect the right and interest of the allottee. The promoter may cancel the allotment only in terms of the agreement for sale; the allottee may approach the Authority for relief if such cancellation is not in accordance with the terms of the agreement for sale, is unilateral and without sufficient cause.
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The promoter shall prepare and maintain all such other details as may be specified, from time to time, by regulations made by the Authority., Where any person makes an advance or a deposit on the basis of the information contained in the notice, advertisement or prospectus, or on the basis of any model apartment, plot or building, as the case may be, and sustains any loss or damage by reason of any incorrect, false statement included therein, he shall be compensated by the promoter in the manner as provided under this Act. Provided that if the person affected by such incorrect, false statement contained in the notice, advertisement or prospectus, or the model apartment, plot or building, as the case may be, intends to withdraw from the proposed project, he shall be returned his entire investment along with interest at such rate as may be prescribed and the compensation in the manner provided under this Act., A promoter shall not accept a sum more than ten percent of the cost of the apartment, plot or building, as the case may be, as an advance payment or an application fee, from a person without first entering into a written agreement for sale with such person and registering the said agreement for sale under any law for the time being in force. The agreement for sale shall be in such form as may be prescribed and shall specify the particulars of development of the project including the construction of building and apartments, along with specifications and internal development works and external development works, the dates and the manner by which payments towards the cost of the apartment, plot or building are to be made by the allottees and the date on which the possession of the apartment, plot or building is to be handed over, the rates of interest payable by the promoter to the allottee and the allottee to the promoter in case of default, and such other particulars as may be prescribed., The proposed project shall be developed and completed by the promoter in accordance with the sanctioned plans, layout plans and specifications as approved by the competent authorities. Notwithstanding anything contained in any law, contract or agreement, after the sanctioned plans, layout plans and specifications and the nature of the fixtures, fittings, amenities and common areas of the apartment, plot or building, as approved by the competent authority, are disclosed or furnished to the person who agrees to take one or more of the said apartment, plot or building, the promoter shall not make any additions or alterations in the sanctioned plans, layout plans and specifications and the nature of fixtures, fittings and amenities described therein in respect of the apartment, plot or building which are agreed to be taken, without the previous consent of that person. Provided that the promoter may make such minor additions or alterations as may be required by the allottee, or such minor changes or alterations as may be necessary due to architectural and structural reasons duly recommended and verified by an authorised architect or engineer after proper declaration and intimation to the allottee. For the purpose of this clause, “minor additions or alterations” excludes structural change including an addition to the area or change in height, or the removal of part of a building, or any change to the structure, such as the construction or removal or cutting into any wall or a part of a wall, partition, column, beam, joist, floor including a mezzanine floor or other support, or a change to or closing of any required means of access ingress or egress or a change to the fixtures or equipment, etc. The promoter shall not make any other alterations or additions in the sanctioned plans, layout plans and specifications of the buildings or the common areas without the previous written consent of at least two‑thirds of the allottees, other than the promoter, who have agreed to take apartments in such building. For the purpose of this clause, the allottees, irrespective of the number of apartments or plots booked by him or booked in the name of his family, or in the case of other persons such as companies or firms or any association of individuals, etc., shall be considered as one allottee only. In case any structural defect or any other defect in workmanship, quality or provision of services or any other obligations of the promoter as per the agreement for sale relating to such development is brought to the notice of the promoter within a period of five years by the allottee from the date of handing over possession, it shall be the duty of the promoter to rectify such defects without further charge, within thirty days, and in the event of the promoter's failure to rectify such defects within such time, the aggrieved allottees shall be entitled to receive appropriate compensation in the manner as provided under this Act., The promoter shall not transfer or assign his majority rights and liabilities in respect of a real estate project to a third party without obtaining prior written consent from two‑thirds of the allottees, except the promoter, and without the prior written approval of the Authority. Provided that such transfer or assignment shall not affect the allotment or sale of the apartments, plots or buildings as the case may be, in the real estate project made by the erstwhile promoter. For the purpose of this sub‑section, the allottee, irrespective of the number of apartments or plots booked by him or booked in the name of his family, or in the case of other persons such as companies or firms or any association of individuals, by whatever name called, booked in its name or booked in the name of its associated entities or related enterprises, shall be considered as one allottee only. On the transfer or assignment being permitted by the allottees and the Authority under subsection (1), the intending promoter shall be required to independently comply with all the pending obligations under the provisions of this Act or the rules and regulations made thereunder, and the pending obligations as per the agreement for sale entered into by the erstwhile promoter with the allottees. Provided that any transfer or assignment permitted under provisions of this section shall not result in extension of time to the intending promoter to complete the real estate project and he shall be required to comply with all the pending obligations of the erstwhile promoter, and in case of default, such intending promoter shall be liable to the consequences of breach or delay, as the case may be, as provided under this Act or the rules and regulations made thereunder., The promoter shall obtain all such insurances as may be notified by the appropriate Government, including but not limited to insurance in respect of (i) title of the land and building as a part of the real estate project; and (ii) construction of the real estate project. The promoter shall be liable to pay the premium and charges in respect of the insurance specified and shall pay the same before transferring the insurance to the association of the allottees. The insurance shall stand transferred to the benefit of the allottee or the association of allottees at the time of the promoter entering into an agreement for sale with the allottee. On formation of the association of the allottees, all documents relating to the insurance shall be handed over to the association., The promoter shall execute a registered conveyance deed in favour of the allottee along with the undivided proportionate title in the common areas to the association of the allottees or the competent authority, as the case may be, and hand over the physical possession of the plot, apartment or building to the allottees and the common areas to the association or the competent authority, and the other title documents pertaining thereto within the specified period as per sanctioned plans as provided under the local laws. Provided that, in the absence of any local law, the conveyance deed shall be carried out by the promoter within three months from the date of issue of occupancy certificate. After obtaining the occupancy certificate and handing over physical possession to the allottees, it shall be the responsibility of the promoter to hand over the necessary documents and plans, including common areas, to the association or the competent authority as per the local laws; provided that, in the absence of any local law, the promoter shall hand over the necessary documents and plans within thirty days after obtaining the occupancy certificate., If the promoter fails to complete or is unable to give possession of an apartment, plot or building (a) in accordance with the terms of the agreement for sale or, as the case may be, duly completed by the date specified therein; or (b) due to discontinuance of his business as a developer on account of suspension or revocation of the registration under this Act or for any other reason, he shall be liable on demand to the allottees, in case the allottee wishes to withdraw from the project, without prejudice to any other remedy available, to return the amount received by him in respect of that apartment, plot or building with interest at such rate as may be prescribed, including compensation in the manner as provided under this Act. Provided that where an allottee does not intend to withdraw from the project, he shall be paid, by the promoter, interest for every month of delay, till the handing over of the possession, at such rate as may be prescribed. The promoter shall compensate the allottees in case of any loss caused to him due to defective title of the land on which the project is being developed or has been developed, in the manner as provided under this Act, and the claim for compensation shall not be barred by limitation provided under any law for the time being in force. If the promoter fails to discharge any other obligations imposed on him under this Act or the rules or regulations made thereunder or in accordance with the terms and conditions of the agreement for sale, he shall be liable to pay such compensation to the allottees, in the manner as provided under this Act., The allottee shall be entitled to obtain the information relating to sanctioned plans, layout plans along with the specifications, approved by the competent authority and such other information as provided in this Act or the rules and regulations made thereunder or the agreement for sale signed with the promoter. The allottee shall be entitled to know the stage‑wise time schedule of completion of the project, including the provisions for water, sanitation, electricity and other amenities and services as agreed between the promoter and the allottee in accordance with the terms and conditions of the agreement for sale. The allottee shall be entitled to claim possession of the apartment, plot or building, and the association of allottees shall be entitled to claim possession of the common areas, as per the declaration given by the promoter. The allottee shall be entitled to claim a refund of the amount paid along with interest at such rate as may be prescribed and compensation in the manner as provided under this Act, from the promoter, if the promoter fails to comply or is unable to give possession of the apartment, plot or building in accordance with the terms of the agreement for sale or due to discontinuance of his business as a developer on account of suspension or revocation of his registration under the provisions of this Act or the rules or regulations made thereunder. The allottee shall be entitled to have the necessary documents and plans, including those of common areas, after handing over the physical possession of the apartment or plot or building by the promoter. Every allottee who has entered into an agreement for sale to take an apartment, plot or building under section 13 shall be responsible to make necessary payments in the manner and within the time specified in the agreement for sale and shall pay at the proper time and place the share of the registration charges, municipal taxes, water and electricity charges, maintenance charges, ground rent and other charges, if any. The allottee shall be liable to pay interest, at such rate as may be prescribed, for any delay in payment towards any amount or charges to be paid under sub‑section (6). The obligations of the allottee under sub‑section (6) and the liability towards interest under sub‑section (7) may be reduced when mutually agreed between the promoter and such allottee. Every allottee shall participate towards the formation of an association or society or cooperative society of the allottees, or a federation of the same. Every allottee shall take physical possession of the apartment, plot or building within a period of two months of the occupancy certificate issued for the said apartment, plot or building. Every allottee shall participate towards registration of the conveyance deed of the apartment, plot or building as provided under sub‑section (1) of section 17 of this Act., The appropriate Government shall, within a period of one year from the date of coming into force of this Act, by notification, establish an Authority to be known as the Real Estate Regulatory Authority to exercise the powers conferred on it and to perform the functions assigned to it under this Act. Provided that the appropriate Government of two or more States or Union territories may, if it deems fit, establish one single Authority. Provided further that the appropriate Government may, if it deems fit, establish more than one Authority in a State or Union territory, as the case may be. Provided also that until the establishment of a Regulatory Authority under this section, the appropriate Government shall, by order, designate any Regulatory Authority or any officer, preferably the Secretary of the department dealing with Housing, as the Regulatory Authority for the purposes under this Act. The Authority shall be a body corporate by the name aforesaid having perpetual succession and a common seal, with the power, subject to the provisions of this Act, to acquire, hold and dispose of property, both movable and immovable, and to contract, and shall, by the said name, sue or be sued., The Authority shall consist of a Chairperson and not less than two whole‑time Members to be appointed by the appropriate Government. The Chairperson and other Members shall be appointed by the appropriate Government on the recommendations of a Selection Committee consisting of the Chief Justice of the High Court or his nominee, the Secretary of the Department dealing with Housing and the Law Secretary, in such manner as may be prescribed, from amongst persons having adequate knowledge of and professional experience of at least twenty years in the case of the Chairperson and fifteen years in the case of the Members in urban development, housing, real estate development, infrastructure, economics, technical expertise from relevant fields, planning, law, commerce, accountancy, industry, management, social service, public affairs or administration. Provided that a person who is, or has been, in the service of the State Government shall not be appointed as a Chairperson unless such person has held the post of Additional Secretary to the Central Government or any equivalent post in the Central Government or State Government. Provided further that a person who is, or has been, in the service of the State Government shall not be appointed as a Member unless such person has held the post of Secretary to the State Government or any equivalent post in the State Government or Central Government., The Chairperson and Members shall hold office for a term not exceeding five years from the date on which they enter upon their office, or until they attain the age of sixty‑five years, whichever is earlier, and shall not be eligible for re‑appointment. Before appointing any person as a Chairperson or Member, the appropriate Government shall satisfy itself that the person does not have any financial or other interest as is likely to affect prejudicially his functions as such Member., The salary and allowances payable to, and the other terms and conditions of service of, the Chairperson and other Members shall be as may be prescribed and shall not be varied to their disadvantage during their tenure. Notwithstanding anything contained in subsections (1) and (2) of section 23, the Chairperson or a Member may (a) relinquish his office by giving in writing to the appropriate Government notice of not less than three months; or (b) be removed from his office in accordance with the provisions of section 26 of this Act. Any vacancy caused to the office of the Chairperson or any other Member shall be filled up within a period of three months from the date on which such vacancy occurs. The Chairperson shall have powers of general superintendence and directions in the conduct of the affairs of the Authority and, in addition to presiding over the meetings of the Authority, shall exercise and discharge such administrative powers and functions of the Authority as may be prescribed., The appropriate Government may, in accordance with the procedure notified, remove from office the Chairperson or other Members if the Chairperson or such other Member has (a) been adjudged insolvent; (b) been convicted of an offence involving moral turpitude; (c) become physically or mentally incapable of acting as a Member; (d) acquired such financial or other interest as is likely to affect prejudicially his functions; or (e) abused his position as to render his continuance in office prejudicial to the public interest. The Chairperson or Member shall not be removed on the ground specified under clause (d) or (e) except by an order made by the appropriate Government after an inquiry made by a Judge of the High Court in which such Chairperson or Member has been informed of the charges against him and given a reasonable opportunity of being heard., The Chairperson or a Member ceasing to hold office shall not (a) accept any employment in, or connected with, the management or administration of, any person or organisation which has been associated with any work under this Act, from the date on which he ceases to hold office, provided that nothing in this clause shall apply to any employment under the appropriate Government or a local authority or any statutory authority or any corporation established by or under any Central, State or provincial Act or a Government Company which is not a promoter as per the provisions of this Act; (b) act for or on behalf of any person or organisation in connection with any specific proceeding or transaction or negotiation or a case to which the Authority is a party and with respect to which the Chairperson or such Member had, before cessation of office, acted for or provided advice to the Authority; (c) give advice to any person using information obtained in his capacity as the Chairperson or a Member and not made available to the public; (d) enter into a contract of service with, or accept an appointment to a board of directors of, or accept an offer of employment with, an entity with which he had direct and significant official dealings during his term of office. The Chairperson and Members shall not communicate or reveal to any person any matter which has been brought under his consideration or known to him while acting as such., The appropriate Government may, in consultation with the Authority, appoint such officers and employees as it considers necessary for the efficient discharge of their functions under this Act who would discharge their functions under the general superintendence of the Chairperson. The salary and allowances payable to, and the other terms and conditions of service of, the officers and employees appointed under sub‑section (1) shall be as may be prescribed., The Authority shall meet at such places and times, and shall follow such rules of procedure in regard to the transaction of business at its meetings, including quorum, as may be specified by the regulations made by the Authority. If the Chairperson for any reason is unable to attend a meeting of the Authority, any other Member chosen by the Members present shall preside at the meeting. All questions which come up before any meeting of the Authority shall be decided by a majority of votes by the Members present and voting, and in the event of an equality of votes, the Chairperson or, in his absence, the person presiding shall have a second or casting vote. The questions which come up before the Authority shall be dealt with as expeditiously as possible and the Authority shall dispose of the same within a period of sixty days from the date of receipt of the application, provided that where any such application could not be disposed of within the said period, the Authority shall record its reasons in writing for not disposing of the application within that period., No act or proceeding of the Authority shall be invalid merely by reason of (a) any vacancy in, or any defect in the constitution of, the Authority; (b) any defect in the appointment of a person acting as a Member of the Authority; or (c) any irregularity in the procedure of the Authority not affecting the merits of the case., Any aggrieved person may file a complaint with the Authority or the adjudicating officer, as the case may be, for any violation or contravention of the provisions of this Act or the rules and regulations made thereunder against any promoter, allottee or real estate agent, as the case may be. For the purpose of this sub‑section “person” shall include the association of allottees or any voluntary consumer association registered under any law for the time being in force. The form, manner and fees for filing a complaint shall be as may be specified by regulations., The Authority shall, in order to facilitate the growth and promotion of a healthy, transparent, efficient and competitive real estate sector, make recommendations to the appropriate Government or the competent authority on: (a) protection of interest of the allottees, promoter and real estate agent; (b) creation of a single‑window system for ensuring time‑bound project approvals and clearances for timely completion of the project; (c) creation of a transparent and robust grievance redressal mechanism against acts of omission and commission of competent authorities and their officials; (d) measures to encourage investment in the real estate sector including measures to increase financial assistance to the affordable housing segment; (e) measures to encourage construction of environmentally sustainable and affordable housing, promoting standardisation and use of appropriate construction materials, fixtures, fittings and construction techniques; (f) measures to encourage grading of projects on various parameters of development including grading of promoters; (g) measures to facilitate amicable conciliation of disputes between the promoters and the allottees through dispute settlement forums set up by the consumer or promoter associations; (h) measures to facilitate digitisation of land records and systems towards conclusive property titles with title guarantee; (i) to render advice to the appropriate Government in matters relating to the development of the real estate sector; and (j) any other issue that the Authority may think necessary for the promotion of the real estate sector., The appropriate Government may, while formulating a policy on the real estate sector (including review of laws related to the real estate sector) or any other matter, make a reference to the Authority for its opinion on the possible effect of such policy or law on the real estate sector and, on receipt of such reference, the Authority shall, within a period of sixty days, give its opinion to the appropriate Government, which may thereafter take further action as it deems fit. The opinion given by the Authority shall not be binding upon the appropriate Government in formulating such policy or laws. The Authority shall take suitable measures for the promotion of advocacy, creating awareness and imparting training about laws relating to the real estate sector and policies.
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The functions of the Authority shall include: to register and regulate real estate projects and real estate agents registered under the Real Estate (Regulation and Development) Act, 2016; to publish and maintain a website of records, for public viewing, of all real estate projects for which registration has been given, with such details as may be prescribed, including information provided in the application for which registration has been granted; to maintain a database, on its website, for public viewing, and enter the names and photographs of promoters as defaulters, including the project details, registration for which has been revoked or penalised under this Act, with reasons therefor; to maintain a database, on its website, for public viewing, and enter the names and photographs of real estate agents who have applied and registered under this Act, with such details as may be prescribed, including those whose registration has been rejected or revoked; to fix through regulations for each area under its jurisdiction the standard fees to be levied on the allottees, the promoter or the real estate agent, as the case may be; to ensure compliance of the obligations cast upon the promoters, the allottees and the real estate agents under this Act and the rules and regulations made thereunder; to ensure compliance of its regulations or orders or directions made in exercise of its powers under this Act; to perform such other functions as may be entrusted to the Authority by the appropriate Government as may be necessary to carry out the provisions of this Act., The Authority may, where it considers it expedient, on a complaint or suo motu relating to this Act or the rules of regulations made thereunder, by order in writing and recording reasons, call upon any promoter, allottee or real estate agent, as the case may be, at any time to furnish in writing such information or explanation relating to its affairs as the Authority may require and may appoint one or more persons to make an inquiry in relation to the affairs of any promoter, allottee or real estate agent. While exercising the powers under sub‑section (1), the Authority shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 while trying a suit, in respect of the following matters: the discovery and production of books of account and other documents, at such place and time as may be specified by the Authority; summoning and enforcing the attendance of persons and examining them on oath; issuing commissions for the examination of witnesses or documents; and any other matter which may be prescribed., The Authority may, by order, restrain any promoter, allottee or real estate agent from carrying on an act contravening this Act or the rules and regulations made thereunder until the conclusion of such inquiry or until further orders, without giving notice to such party, where the Authority deems it necessary., The Authority may, for the purpose of discharging its functions under the provisions of this Act or rules or regulations made thereunder, issue such directions from time to time to the promoters, allottees or real estate agents, as it may consider necessary, and such directions shall be binding on all concerned., The Authority shall have powers to impose penalty or interest in regard to any contravention of obligations cast upon the promoters, the allottees and the real estate agents under this Act or the rules and regulations made thereunder. The Authority shall be guided by the principles of natural justice and, subject to the other provisions of this Act and the rules made thereunder, shall have powers to regulate its own procedure. Where an issue is raised relating to an agreement, action, omission, practice or procedure that constitutes an appreciable prevention, restriction or distortion of competition in connection with the development of a real estate project, or has the effect of market power or monopoly being abused to the adverse interest of allottees, the Authority may suo motu make reference in respect of such issue to the Competition Commission of India., The Authority may, at any time within two years from the date of an order made under this Act, with a view to rectifying any mistake apparent from the record, amend any order passed by it, and shall make such amendment if the mistake is brought to its notice by the parties, provided that no such amendment shall be made in respect of any order against which an appeal has been preferred under this Act and that the Authority shall not, while rectifying any mistake apparent from the record, amend the substantive part of its order., The appropriate Government shall, within one year from the date of coming into force of this Act, by notification, establish an Appellate Tribunal to be known as the [State/Union Territory] Real Estate Appellate Tribunal. The appropriate Government may, if it deems necessary, establish one or more benches of the Appellate Tribunal for various jurisdictions in the State or Union territory. Every bench of the Appellate Tribunal shall consist of at least one Judicial Member and one Administrative or Technical Member. The appropriate Government of two or more States or Union territories may, if it deems fit, establish a single Appellate Tribunal. Until the establishment of an Appellate Tribunal under this section, the appropriate Government shall designate, by order, any Appellate Tribunal functioning under any law for the time being in force to be the Appellate Tribunal to hear appeals under the Act; after the Appellate Tribunal under this section is established, all matters pending with the designated Appellate Tribunal shall be transferred to the newly established Appellate Tribunal and shall be heard from the stage at which the appeal is transferred., Any person aggrieved by any direction, order or decision made by the Authority or an adjudicating officer may prefer an appeal before the Appellate Tribunal having jurisdiction over the matter. Where a promoter files an appeal with the Appellate Tribunal, it shall not be entertained unless the promoter first deposits with the Appellate Tribunal at least thirty per cent of the penalty, or such higher percentage as may be determined by the Appellate Tribunal, or the total amount to be paid to the allottee including interest and compensation, as the case may be, before the appeal is heard. For the purpose of this sub‑section, “person” includes the association of allottees or any voluntary consumer association registered under any law for the time being in force., The appropriate Government or the competent authority for settlement of disputes and appeals to the Appellate Tribunal may receive an appeal within sixty days from the date on which a copy of the direction, order or decision made by the Authority or the adjudicating officer is received. The appeal shall be in the form and accompanied by the fee as may be prescribed; the Appellate Tribunal may entertain any appeal after the expiry of sixty days if it is satisfied that there was sufficient cause for not filing it within that period. Upon receipt of an appeal, the Appellate Tribunal may, after giving the parties an opportunity of being heard, pass such orders, including interim orders, as it thinks fit. The Appellate Tribunal shall send a copy of every order made by it to the parties and to the Authority or the adjudicating officer, as the case may be. The appeal shall be dealt with as expeditiously as possible and the Tribunal shall endeavour to dispose of the appeal within sixty days from the date of receipt of the appeal; if the appeal cannot be disposed of within that period, the Tribunal shall record in writing the reasons for the delay. The Tribunal may, for the purpose of examining the legality, propriety or correctness of any order or decision of the Authority or the adjudicating officer, on its own motion or otherwise, call for the records relevant to the appeal and make such orders as it thinks fit., The Appellate Tribunal shall consist of a Chairperson and not less than two whole‑time Members, one of whom shall be a Judicial Member and the other a Technical or Administrative Member, to be appointed by the appropriate Government. For the purposes of this Chapter, “Judicial Member” means a Member appointed under clause (b) of sub‑section (1) of section 46; “Technical or Administrative Member” means a Member appointed under clause (c) of sub‑section (1) of section 46., A person shall not be qualified for appointment as the Chairperson or a Member of the Appellate Tribunal unless: in the case of Chairperson, he is or has been a Judge of a High Court; in the case of a Judicial Member, he has held a judicial office in the territory of India for at least fifteen years or has been a member of the Indian Legal Service and has held the post of Additional Secretary of that service or any equivalent post, or has been an advocate for at least twenty years with experience in dealing with real estate matters; and in the case of a Technical or Administrative Member, he is a person well‑versed in the field of urban development, housing, real estate development, infrastructure, economics, planning, law, commerce, accountancy, industry, management, public affairs or administration and possesses experience of at least twenty years in the field or has held a post in the Central Government or a State Government equivalent to the post of Additional Secretary to the Government of India or an equivalent post., The Chairperson of the Appellate Tribunal shall be appointed by the appropriate Government in consultation with the Chief Justice of the High Court or his nominee. The Judicial Members and Technical or Administrative Members shall be appointed by the appropriate Government on the recommendations of a Selection Committee consisting of the Chief Justice of the High Court or his nominee, the Secretary of the Department handling Housing and the Law Secretary, in such manner as may be prescribed., The Chairperson of the Appellate Tribunal or a Member shall hold office for a term not exceeding five years from the date on which he enters upon his office, but shall not be eligible for re‑appointment; a former Judge of a High Court appointed as Chairperson shall not hold office after attaining the age of sixty‑seven years; no Judicial Member or Technical or Administrative Member shall hold office after attaining the age of sixty‑five years. Before appointing any person as Chairperson or Member, the appropriate Government shall satisfy itself that the person does not have any financial or other interest likely to affect his functions prejudicially., The salary and allowances payable to the Chairperson and other Members, and the other terms and conditions of service, shall be as may be prescribed and shall not be varied to their disadvantage during their tenure. The Chairperson or a Member may relinquish his office by giving in writing to the appropriate Government a notice of not less than three months, or may be removed from his office in accordance with the provisions of section 49. A vacancy caused to the office of the Chairperson or any other Member shall be filled within three months from the date on which such vacancy occurs., The appropriate Government may, in consultation with the Chief Justice of the High Court, remove from office the Chairperson or any Judicial Member or Technical or Administrative Member who has been adjudged insolvent; convicted of an offence involving moral turpitude; become physically or mentally incapable; acquired a financial or other interest likely to affect his functions prejudicially; or has abused his position rendering his continuance in office prejudicial to the public interest. The Chairperson or Member shall not be removed except by an order of the appropriate Government after an inquiry made by a Judge of the High Court, in which the person has been informed of the charges and given a reasonable opportunity of being heard., The appropriate Government may suspend the Chairperson or Judicial Member or Technical or Administrative Member, in respect of whom a reference for conducting an inquiry has been made to the Judge of the High Court under sub‑section (2), until the Government passes an order on receipt of the report of inquiry. The appropriate Government may, by rules, regulate the procedure for inquiry referred to in sub‑section (2)., The Chairperson, Judicial Member or Technical or Administrative Member, upon ceasing to hold office, shall not accept any employment in, or connected with, the management or administration of, any person or organisation associated with any work under this Act, except employment under the appropriate Government, a local authority, any statutory authority, or any corporation established by or under any Central, State or Provincial Act or a Government Company as defined under clause (45) of section 2 of the Companies Act, 2013, which is not a promoter under this Act. He shall not act for or on behalf of any person or organisation in connection with any specific proceeding, transaction, negotiation or case to which the Authority is a party and about which he had, before cessation of office, acted for or provided advice to the Authority. He shall not give advice to any person using information obtained in his capacity as Chairperson or Member that is not publicly available. He shall not enter into a contract of service with, or accept an appointment to a board of directors of, or accept an offer of employment with, an entity with which he had direct and significant official dealings during his term of office. He shall not communicate or reveal to any person any matter which has been brought under his consideration or known to him while acting as such., The appropriate Government shall provide the Appellate Tribunal with such officers and employees as it may deem fit. The officers and employees shall discharge their functions under the general superintendence of its Chairperson. The salary and allowances payable to, and the other terms and conditions of service of, the officers and employees shall be as may be prescribed., If, for reason other than temporary absence, any vacancy occurs in the office of the Chairperson or a Member of the Appellate Tribunal, the appropriate Government shall appoint another person in accordance with the provisions of this Act to fill the vacancy and the proceedings may be continued before the Appellate Tribunal from the stage at which the vacancy is filled., The Appellate Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 but shall be guided by the principles of natural justice. Subject to the provisions of this Act, the Tribunal shall have power to regulate its own procedure and shall also not be bound by the rules of evidence contained in the Indian Evidence Act, 1872. For the purpose of discharging its functions under this Act, the Tribunal shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 in respect of: summoning and enforcing the attendance of any person and examining him on oath; requiring the discovery and production of documents; receiving evidence on affidavits; issuing commissions for the examination of witnesses or documents; reviewing its decisions; dismissing an application for default or directing it ex parte; and any other matter which may be prescribed. All proceedings before the Tribunal shall be deemed judicial proceedings within the meaning of sections 193, 219 and 228 for the purposes of section 196 of the Indian Penal Code, and the Tribunal shall be deemed a civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure., The Chairperson shall have powers of general superintendence and direction in the conduct of the affairs of the Appellate Tribunal and shall, in addition to presiding over the meetings of the Tribunal, exercise and discharge such administrative powers and functions of the Tribunal as may be prescribed., No act or proceeding of the Appellate Tribunal shall be invalid merely because of any vacancy in, or any defect in the constitution of, the Tribunal; any defect in the appointment of a person acting as a Member; or any irregularity in the procedure of the Tribunal not affecting the merits of the case., The applicant or appellant may either appear in person or authorise one or more chartered accountants, company secretaries, cost accountants, legal practitioners or any of its officers to present his or its case before the Appellate Tribunal, the Regulatory Authority or the adjudicating officer, as the case may be. For the purposes of this section, “chartered accountant” means a chartered accountant as defined in clause (b) of sub‑section (1) of section 2 of the Chartered Accountants Act, 1949 or any other law in force and who has obtained a certificate of practice; “company secretary” means a company secretary as defined in clause (c) of sub‑section (1) of section 2 of the Company Secretaries Act, 1980 or any other law in force and who has obtained a certificate of practice; “cost accountant” means a cost accountant as defined in clause (b) of sub‑section (1) of section 2 of the Cost and Works Accountants Act, 1959 or any other law in force and who has obtained a certificate of practice; “legal practitioner” means an advocate, vakil or an attorney of any High Court, and includes a pleader in practice., Every order made by the Appellate Tribunal under this Act shall be executable as a decree of a civil court, and for this purpose the Tribunal shall have all the powers of a civil court. Notwithstanding anything contained in sub‑section (1), the Tribunal may transmit any order made by it to a civil court having local jurisdiction and such civil court shall execute the order as if it were a decree made by the court., Any person aggrieved by any decision or order of the Appellate Tribunal may file an appeal to the High Court of the State or Union territory where the real estate project is situated, within sixty days from the date of communication of the decision or order of the Tribunal, on any one or more of the grounds specified in section 100 of the Code of Civil Procedure, 1908; the High Court may entertain the appeal after the expiry of sixty days if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time. No appeal shall lie against any decision or order made by the Appellate Tribunal with the consent of the parties., If any promoter contravenes the provisions of section 3, he shall be liable to a penalty which may extend up to ten per cent of the estimated cost of the real estate project as determined by the Authority. If the promoter does not comply with the orders, decisions or directions issued under sub‑section (1) or continues to violate the provisions of section 3, he shall be punishable with imprisonment for a term which may extend up to three years or with a fine which may extend up to a further ten per cent of the estimated cost of the real estate project, or with both., If any promoter provides false information or contravenes the provisions of section 4, he shall be liable to a penalty which may extend up to five per cent of the estimated cost of the real estate project, as determined by the Authority., If any promoter contravenes any other provision of this Act, other than those provided under section 3 or section 4, or the rules or regulations made thereunder, he shall be liable to a penalty which may extend up to five per cent of the estimated cost of the real estate project as determined by the Authority., If any real estate agent fails to comply with or contravenes the provisions of section 9 or section 10, he shall be liable to a penalty of ten thousand rupees for every day during which such default continues, which may cumulatively extend up to five per cent of the cost of the plot, apartment or building of the real estate project for which the sale or purchase has been facilitated, as determined by the Authority., If any promoter fails to comply with or contravenes any order or direction of the Authority, he shall be liable to a penalty for every day during which such default continues, which may cumulatively extend up to five per cent of the estimated cost of the real estate project as determined by the Authority., If any promoter fails to comply with or contravenes any order, decision or direction of the Appellate Tribunal, he shall be punishable with imprisonment for a term which may extend up to three years or with a fine for every day during which such default continues, which may cumulatively extend up to ten per cent of the estimated cost of the real estate project, or with both., If any real estate agent fails to comply with or contravenes any order or direction of the Authority, he shall be liable to a penalty for every day during which such default continues, which may cumulatively extend up to five per cent of the estimated cost of the plot, apartment or building of the real estate project for which the sale or purchase has been facilitated, as determined by the Authority., If any real estate agent fails to comply with or contravenes any order, decision or direction of the Appellate Tribunal, he shall be punishable with imprisonment for a term which may extend up to one year or with a fine for every day during which such default continues, which may cumulatively extend up to ten per cent of the estimated cost of the plot, apartment or building of the real estate project for which the sale or purchase has been facilitated, or with both.
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Penalty for failure to comply with orders of Appellate Tribunal by real estate agent. Penalty for failure to comply with orders of Authority by allottee. If any allottee who fails to comply with or contravenes any of the orders, decisions or directions of the Authority, he shall be liable to a penalty for the period during which such default continues, which may cumulatively extend up to five per cent of the plot, apartment or building cost, as the case may be, as determined by the Authority. Penalty for failure to comply with orders of Authority by allottee. Penalty for failure to comply with orders of Appellate Tribunal by allottee. If any allottee who fails to comply with or contravenes any of the orders or directions of the Appellate Tribunal, he shall be punishable with imprisonment for a term which may extend up to one year or with fine for every day during which such default continues, which may cumulatively extend up to ten per cent of the plot, apartment or building cost, as the case may be, or with both., Offences by companies. Where an offence under the Real Estate (Regulation and Development) Act has been committed by a company, every person who, at the time the offence was committed, was in charge of, or 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 such person liable to any punishment under this Act 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. Notwithstanding anything contained in subsection (1), where an 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. For the purpose of this section, “company” means any body corporate and includes a firm or other association of individuals; and “director” in relation to a firm means a partner in the firm., Grants and loans by State Government. The State Government may, after due appropriation made by the State Legislature by law in this behalf, make to the Authority grants and loans of such sums of money as the State Government may think fit for being utilised for the purposes of this Act., Constitution of Fund. The appropriate Government shall constitute a fund to be called the Real Estate Regulatory Fund and there shall be credited thereto (a) all Government grants received by the Authority; (b) the fees received under this Act; (c) the interest accrued on the amounts referred to in clauses (a) to (b). The Fund shall be applied for meeting (a) the salaries and allowances payable to the Chairperson and other Members, the adjudicating officer and the administrative expenses including the salaries and allowances payable to officers and other employees of the Authority and the Appellate Tribunal; (b) the other expenses of the Authority in connection with the discharge of its functions for the purposes of this Act. The Fund shall be administered by a committee of such Members of the Authority as may be determined by the Chairperson. The committee appointed under sub‑section (3) shall spend monies out of the Fund for carrying out the objects for which the Fund has been constituted., Crediting sums realised by way of penalties to Consolidated Fund of India or State. All sums realised by way of penalties imposed by the Appellate Tribunal or the Authority in the Union territories shall be credited to the Consolidated Fund of India. All sums realised by way of penalties imposed by the Appellate Tribunal or the Authority in a State shall be credited to such account as the State Government may specify., Budget, accounts and audit. The Authority shall prepare a budget, maintain proper accounts and other relevant records and prepare an annual statement of accounts in such form as may be prescribed by the appropriate Government in consultation with the Comptroller and Auditor General of India. The accounts of the Authority shall be audited by the Comptroller and Auditor General of India at such intervals as may be specified by him and any expenditure incurred in connection with such audit shall be payable by the Authority to the Comptroller and Auditor General of India. The Comptroller and Auditor General and any person appointed by him in connection with the audit of the accounts of the Authority under this Act shall have the same rights and privileges and authority in connection with such audit as the Comptroller and Auditor General generally has in connection with the audit of Government accounts, and in particular shall have the right to demand production of books, accounts, vouchers and other documents and papers, and to inspect any of the offices of the Authority. The accounts of the Authority, as certified by the Comptroller and Auditor General of India or any other person appointed by him in this behalf, together with the audit report thereon shall be forwarded annually to the appropriate Government by the Authority and the appropriate Government shall cause the audit report to be laid, as soon as may be after it is received, before each House of Parliament or, as the case may be, before the State Legislature or the Union Territory Legislature., Annual report. The Authority shall prepare once in every year, in such form and at such time as may be prescribed by the appropriate Government, (a) a description of all the activities of the Authority for the previous year; (b) the annual accounts for the previous year; and (c) the programmes of work for the coming year. A copy of the report shall be laid, as soon as may be after it is received, before each House of Parliament or, as the case may be, before the State Legislature or the Union Territory Legislature, where it consists of two Houses, or where such legislature consists of one House, before that House., Bar of jurisdiction. No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Authority or the adjudicating officer or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act., Cognizance of offences. No court shall take cognizance of any offence punishable under this Act or the rules or regulations made thereunder save on a complaint in writing made by the Authority or by any officer of the Authority duly authorised by it for this purpose. No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act., Delegation. The Authority may, by general or special order in writing, delegate to any member, officer of the Authority or any other person, subject to such conditions as may be specified in the order, any of its powers and functions under this Act (except the power to make regulations under section 85), as it may deem necessary., Power of appropriate Government to supersede Authority. If, at any time, the appropriate Government is of the opinion that (a) on account of circumstances beyond the control of the Authority it is unable to discharge the functions or perform the duties imposed on it by or under the provisions of this Act; or (b) the Authority has persistently defaulted in complying with any direction given by the appropriate Government under this Act and as a result the financial position of the Authority or the administration of the Authority has suffered; or (c) circumstances exist which render it necessary in the public interest to do so, the appropriate Government may, by notification, supersede the Authority for a period not exceeding six months and appoint a person or persons as the President or the Governor, as the case may be, to exercise powers and discharge functions under this Act. Provided that before issuing any such notification, the appropriate Government shall give a reasonable opportunity to the Authority to make representations against the proposed supersession and shall consider the representations, if any, of the Authority. Upon the publication of a notification superseding the Authority, the Chairperson and other Members shall, as from the date of supersession, vacate their offices; all the powers, functions and duties which may be exercised or discharged by or on behalf of the Authority shall, until the Authority is reconstituted, be exercised and discharged by the person or persons referred to in the notification; and all properties owned or controlled by the Authority shall, until the Authority is reconstituted, vest in the appropriate Government. On or before the expiration of the period of supersession, the appropriate Government shall reconstitute the Authority by a fresh appointment of its Chairperson and other members and any person who had vacated his office shall not be deemed to be disqualified for re‑appointment. The appropriate Government shall cause a copy of the notification and a full report of any action taken under this section and the circumstances leading to such action to be laid before each House of Parliament or, as the case may be, before the State Legislature or the Union Territory Legislature., Powers of appropriate Government to issue directions to Authority and obtain reports and returns. Without prejudice to the foregoing provisions of this Act, the Authority shall, in exercise of its powers and in performance of its functions under this Act, be bound by such directions on questions of policy as the appropriate Government may give in writing to it from time to time, provided that the Authority shall, as far as practicable, be given an opportunity to express its views before any direction is given. If any dispute arises between the appropriate Government and the Authority as to whether a question is or is not a question of policy, the decision of the appropriate Government shall be final. The Authority shall furnish to the appropriate Government such returns or other information with respect to its activities as the appropriate Government may, from time to time, require., Power of appropriate Government to make rules. The appropriate Government shall, within a period of six months of the commencement of this Act, by notification, make rules for carrying out the provisions of this Act., Power of Authority to make regulations. The Authority shall, within a period of three months of its establishment, by notification, make regulations, consistent with this Act and the rules made thereunder, to carry out the purposes of this Act., Members, etc., to be public servants. The Chairperson, Members and other officers and employees of the Authority, and the Appellate Tribunal and the adjudicating officer shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code., Protection of action taken in good faith. No suit, prosecution or other legal proceedings shall lie against the appropriate Government or the Authority or any officer of the appropriate Government or any member, officer or other employee of the Authority for anything which is in good faith done or intended to be done under this Act or the rules or regulations made thereunder., Power to remove difficulties. If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order published in the Official Gazette, make such provisions not inconsistent with the provisions of this Act as may appear to be necessary for removing the difficulty, provided that no order shall be made under this section after the expiry of two years from the date of the commencement of this Act. Every order made under this section shall be laid, as soon as may be after it is made, before each House of Parliament., It is emphasized that the tabulated provisions of the State enactment are a verbatim reproduction of the Central enactment in most instances, with minor differences between the provisions due to the Real Estate (Regulation and Development) Act being a Central enactment and the West Bengal Housing Industry Regulation Act being a State enactment, but those are not relevant for the present discussion. Section 83 of the West Bengal Housing Industry Regulation Act provides as follows: “Application of other laws not barred – The provisions of this Act shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force.” Section 83 corresponds to Section 88 of the Real Estate (Regulation and Development) Act. There is no provision in the West Bengal Housing Industry Regulation Act corresponding to Section 89 of the Real Estate (Regulation and Development) Act, according to which overriding effect has been given to the Real Estate (Regulation and Development) Act, notwithstanding anything inconsistent therewith contained in any other law for the time being in force. The repealing provisions of the two enactments are distinct. Section 92 of the Real Estate (Regulation and Development) Act has repealed the Maharashtra Act, while Section 86(1) of the West Bengal Housing Industry Regulation Act repeals the West Bengal 1993 Act., Definition of Car Parking Area: Under the Real Estate (Regulation and Development) Act, open car parking areas are covered under the definition of common areas and therefore cannot be sold. Section 2(i) defines car parking area as such area as may be prescribed. Under Section 2(n) “common areas” mean ... In the West Bengal Housing Industry Regulation Rules, (i) the entire land for the real estate project or where the project is developed in phases and registration under this Act is sought for a phase, the entire land for that phase; (ii) the staircases, lifts, lift lobbies, fire escapes, and common entrances and exits of buildings; (iii) the common basements, terraces, parks, play areas, open parking areas and common storage spaces; Car parking means an area either enclosed or unenclosed, covered or open excluding open car parking areas reserved for common areas and facilities to park vehicles located at any level having sufficient driveway and manoeuvring space for loading and unloading as sanctioned by the competent authority and includes all types of car parking areas sanctioned by the competent authority. Definition of Garage: Section 2(y) defines garage as a place within a project having a roof and walls on three sides for parking any vehicle, but does not include an unenclosed or uncovered parking space such as open parking areas. Section 2(x) defines garage and parking space as sanctioned by the Competent Authority. Planning Area: The Real Estate (Regulation and Development) Act applies only to those real estate projects which are located within the planning area notified by the appropriate government or a competent authority to be a planning area. There exists no separate concept of a planning area in the West Bengal Housing Industry Regulation Act, which applies to all projects in the State of West Bengal. Force Majeure events for the purpose of extension of registration: The registration granted under section 5 may be extended by the Authority on an application made by the promoter due to force majeure, in such form and on payment of such fee as may be specified by regulations made by the Authority. Section 6 defines force majeure events as a case of war, flood, drought, fire, cyclone, earthquake, or any other calamity caused by nature affecting the regular development of the real estate project or any other circumstances as may be prescribed., Power of the Regulatory Authority. Section 38(3) provides that where an issue has the effect of a monopoly situation, the authority has power to make a suo‑motu reference to the Competition Commission of India in certain cases. No such power exists in the West Bengal Housing Industry Regulation Act., Establishment of Central Advisory Council. Section 41 provides for the establishment of a Central Advisory Council, chaired ex officio by the Union Minister of Housing. The functions of the Central Advisory Council shall be to advise and recommend to the Central Government (i) on all matters concerning the implementation of this Act; (ii) on major questions of policy; (iii) towards protection of consumer interest; (iv) to foster the growth and development of the real estate sector; (v) on any other matter as may be assigned to it by the Central Government. The Act also provides for the establishment of a State Advisory Council chaired ex officio by the State Minister of Housing. However, the purpose of having a Central Advisory Council was entirely different and cannot be substituted by establishing a State Advisory Council. Any advisory of the Central Government based upon the recommendation of the Central Advisory Council will have no effect in the State of West Bengal., During the COVID‑19 global pandemic, to address the concerns of homebuyers who had invested their lifetime savings and to ensure the completion of projects, based upon the recommendations of the Central Advisory Council on 13 May 2020, the Ministry issued an advisory to all States and Union Territories and their Regulatory Authorities for issuance of requisite orders or directions under the enabling provisions of the Real Estate (Regulation and Development) Act to invoke the force majeure clause and extend the completion date, or revised/extended completion date, for all real estate projects registered under the Act for a period of six months where the completion date expires on or after 25 March 2020. However, the stakeholders of West Bengal were deprived as they were not covered under the purview of the Real Estate (Regulation and Development) Act., Compounding of offences. Section 70 provides for compounding of offences under the Act. There is no such provision in the West Bengal Housing Industry Regulation Act., Factors for adjudging quantum of compensation or interest. Section 71(1) provides that the Regulatory Authority shall appoint an adjudicating officer for the purpose of adjudging compensation under sections 12, 14, 18 and 19. In the West Bengal Housing Industry Regulation Act, the factor stated for adjudging the quantum of compensation or interest payable by a promoter is that a District Judge shall be an adjudicating officer. The power to adjudge compensation has also been given to the Regulatory Authority which is chaired by an administrative person, not a judicial person., Court which may try offences. Section 80(2) provides that no court inferior to a Metropolitan Magistrate or a First Class Judicial Magistrate shall try any offence punishable under the Act. There is no such provision in the West Bengal Housing Industry Regulation Act., Section 84(2) contains an illustration regarding the exercise of the rule‑making power. There is no such provision in the West Bengal Housing Industry Regulation Act. Section 85(2) contains an illustration regarding the nature of regulations. There is no such provision in the West Bengal Housing Industry Regulation Act., Overriding effect. Section 89 of the Real Estate (Regulation and Development) Act gives the Act overriding force and effect. There is no such provision in the West Bengal Housing Industry Regulation Act., Submissions of the petitioners. Mr Devashish Bharuka, learned counsel appearing on behalf of the petitioners, urged the following submissions: (a) The subject of both the central and the state enactments is covered by Entries 6 and 7 of the Concurrent List to the Seventh Schedule to the Constitution; (b) The Real Estate (Regulation and Development) Act is a complete and exhaustive code which regulates the contractual relationship between a builder/promoter and a buyer/consumer in the real estate sector and provides remedial measures. Parliament has indicated an intent to occupy the whole field; (c) The Real Estate (Regulation and Development) Act regulates the rights and obligations between promoters and buyers of real estate in addition to the provisions of the Indian Contract Act, 1872. The enactment, in ensuring the actual transfer of property to the buyer, furthers the objects of the Transfer of Property Act, 1882. It provides for the enforcement of contracts through remedial measures which are in addition to the remedies provided in the Consumer Protection Act, 1986 and its successor legislation of 2019. In other words, the Real Estate (Regulation and Development) Act is a special statute governing the real estate sector encompassing rights and obligations found in different central enactments; and (d) The West Bengal Housing Industry Regulation Act covers the identical field of regulating the contractual behaviour of promoters and buyers in real‑estate projects. The state law is a copy and paste replica of the central legislation (except for certain provisions which are inconsistent with the Real Estate (Regulation and Development) Act) and covers the field which is occupied by the central enactment., Further arguments: (a) The subjects of both sets of legislations are contained in Entries 6 and 7 of the Concurrent List; (b) The state law does not fall either under the subject of land (Entry 18, List III) or industry (Entry 24, List III). That the West Bengal Housing Industry Regulation Act does not fall under Entry 24, List III is evident from the meaning of the expression “industry” as explained in decisions such as Tika Ram Ji v State of Uttar Pradesh, Calcutta Gas Co. Ltd. v State of West Bengal, ITC Ltd. v Agricultural Produce Market Committee & Ors., Accountant and Secretarial Services Pvt. Ltd. v Union of India, Ashoka Marketing Ltd. v Punjab National Bank, Indu Bhushan Bose v Rama Sundari Debi; (c) The tests of repugnancy as enunciated by this Court are three‑fold: first, there may be a direct inconsistency or conflict between the actual terms of the competing statutes; second, even if there is no direct conflict, where Parliament has intended to occupy the entire field by enacting an exhaustive or complete code, the state law in the same field would be repugnant and inoperative; third, a conflict may arise where the State Legislature has sought to exercise its powers over the same subject matter as the legislation by Parliament; (d) The Real Estate (Regulation and Development) Act being an exhaustive code regulating the contractual relationships between promoters and buyers in the real‑estate sector, the West Bengal Housing Industry Regulation Act entrenches on an occupied field and is hence repugnant and void under Article 254(2) of the Constitution; (e) The West Bengal Housing Industry Regulation Act was not reserved for the assent of the President and is hence not protected by Article 254(2) nor would the state enactment be protected by Article 255 which applies only to a situation where a recommendation or previous sanction is required to be given by the Governor or the President; (f) Without prejudice to the earlier submissions on the doctrine of occupied field, there are inconsistencies between the Real Estate (Regulation and Development) Act and the West Bengal Housing Industry Regulation Act. The state legislature has made several changes which tilt the law in favour of the promoter‑builder, for example: (i) Though adjudication of compensation under the Real Estate (Regulation and Development) Act is entrusted to an adjudicatory officer who is a judicial officer, this provision does not find place in the state enactment; (ii) Changes have been made in the definition of the expressions “garage” and “force majeure”; (iii) Removal of the concept of planning area in the state legislation; (iv) Change in the jurisdictional court which takes cognizance of offences; (v) Complete change of stance by the State government., Effect of Sections 88 and 89 of the Real Estate (Regulation and Development) Act: (a) Both the central and state laws fall under the subjects of legislation contained in the Concurrent List; (b) The State of West Bengal has submitted that Sections 88 and 89 of the Real Estate (Regulation and Development) Act allow the States to bypass the requirement of Presidential assent under Article 254(2) to enact a statute which is substantially identical to the Real Estate (Regulation and Development) Act for creating parallel regimes across the country; (c) Accepting this submission and allowing the State to provide a duplicate regime would result in complete chaos in the real‑estate sector; (d) At the time when the Real Estate (Regulation and Development) Act was enacted, several state laws were in existence including the Maharashtra Ownership Flats Act, 1963; Karnataka Ownership Flat Act, 1972; Gujarat Ownership Flats Act, 1973; Andhra Pradesh Apartments Act, 1987; West Bengal (Regulation of Promotion of Construction and Transfer by Promoters) Act; Punjab Apartment and Property Regulation Act, 1995. The above state laws covered certain areas beyond what is covered by the Real Estate (Regulation and Development) Act. Hence, Section 89 read with the proviso to Article 254(2) impliedly repeals such provisions to the extent to which they overlap with the Real Estate (Regulation and Development) Act. Significantly, the state legislations covering the same subject matter were enacted in Maharashtra in 2012 and in Kerala in 2015.
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By Section 92 of the Real Estate (Regulation and Development) Act, Parliament repealed the Maharashtra legislation while Kerala repealed its own law in 2017. The legislative history of the Real Estate (Regulation and Development) Act would indicate that there was a clarion call for a uniform national law in the real‑estate sector for some time. Section 88 of the Real Estate (Regulation and Development) Act stipulates that the provisions of the Act are in addition to and not in derogation of any other law for the time being in force while Section 89 gives overriding force and effect to the Act notwithstanding anything inconsistent contained in any other law for the time being in force. The expression for the time being in force may, according to context and intent, refer to either a specific period of time or to all periods of time. Since the Act is remedial and regulatory, it is to operate together with existing laws including the Consumer Protection Act for the purpose of providing wholesome statutory protections to both promoters and consumers. Section 89 gives overriding effect to the Act over inconsistent existing laws., Sections 88 and 89 do not prohibit the enactment of laws by Parliament or the state legislatures in future. However, in the case of a future state law covering the same field, its validity has to be tested only on the touchstone of Article 254 without reference to Sections 88 or 89. In the event of a future Parliamentary law, its effect and impact would be tested on the general principles of interpretation of statutes such as general and special laws, an earlier and later law and the rule of harmonious construction. The State cannot enact a law on the subject matter without seeking Presidential assent. The expression ‘in addition to and not in derogation of’ was intended to indicate that the remedies in the Real Estate (Regulation and Development) Act are addition to those provided by other statutes including the Consumer Protection Act and the Insolvency and Bankruptcy Code, 2016., Provisions analogous to Sections 88 and 89 of the Real Estate (Regulation and Development) Act are contained in several other central statutes on the subjects in the Concurrent List. For example, the Electricity Act, 2003 (List Entry 38) contains Section 175 and Section 174; the Limited Liability Partnership Act, 2008 (List Entry 7) contains Section 71; the Commercial Courts Act (List Entries 11‑A, 13, 46) contains Section 21; the Insolvency and Bankruptcy Code, 2016 (List Entry 9) contains Section 238; the Mental Healthcare Act, 2017 (List Entry 16) contains Section 120; the Fugitive Economic Offenders Act, 2018 (List Entry 1) contains Section 22., If the interpretation of the State of West Bengal is accepted, the State would have an open hand to legislate by enacting a parallel regime as in the case of West Bengal Housing Industry Regulatory Authority (WB‑HIRA) without obtaining Presidential assent. This would destroy the federal legislative scheme of the primacy of Parliament under Article 254., (V) Applicability of Article 256. The interpretation placed by the State of West Bengal on Sections 88 and 89 is contrary to the request of the Union of India to the State to repeal WB‑HIRA and to notify the rules under the Real Estate (Regulation and Development) Act. The State was under a constitutional mandate to act under Article 256 rather than enacting its own law without Presidential assent under Article 254(2). The enactment of a parallel regime for implementing provisions analogous to the Real Estate (Regulation and Development) Act in the State of West Bengal will create serious inconvenience and absurdity and render the entire scheme of the Act as a uniform national regulation unworkable. Under the Act, the State government acts as a delegate of Parliament whereas with WB‑HIRA, the State has shifted its role to that of a delegator., (VI) Upon the declaration of WB‑HIRA as unconstitutional, the 1993 legislation in West Bengal may also be declared as repealed in view of the following: Section 89 of the Real Estate (Regulation and Development) Act impliedly repeals all earlier state acts with Presidential assent under the proviso to Article 254(2); alternatively, Section 86 of WB‑HIRA which repeals the West Bengal 1993 Act may be severed by applying the doctrine of severability. On the above grounds, it has been submitted that WB‑HIRA is void for want of legislative competence., G.2 For the Union of India. Ms Aishwarya Bhati, learned Additional Solicitor General appearing on behalf of the Union of India, urged the following submissions: (I) Background and Statement of objects of the Real Estate (Regulation and Development) Act. The legislative background before the enactment of the Act in 2016 indicates that a comprehensive exercise was carried out by the Select Committee of the Rajya Sabha which heard the views of stakeholders from across the country. Parliament enacted the Act, as the Statement of Objects and Reasons indicates, having due regard to (i) the necessity of a central legislation to provide effective protection to real estate buyers and protect them from exploitation; (ii) the need to ensure uniformity and standardisation of business practices; (iii) the key purpose of the Act to ensure uniformity, transparency, efficiency, symmetry, standardisation and efficacious dispute resolution. While enacting the Act, Parliament by its definition of ‘appropriate government’ in Section 2(g) entrusted wide powers to the State governments including the power to frame rules and regulations. Some of the salient features of the Act include registration of real estate projects, registration of real estate agents, mandatory disclosure of project details on the website of the authority, fast‑track dispute settlement mechanism, establishment of a Central Advisory Council to recommend policy measures for protecting consumer interest and ensure faster growth and development of the real estate sector, and establishment of a real estate regulatory authority and appellate tribunal for oversight of real estate transactions and to settle disputes by imposing interest and compensation., (II) Constitutional validity. The validity of the Act has been upheld by the Bombay High Court (except for Section 46(1)(b)); Writ Petition 2737 of 2017, decided on 6 December 2017. As many as 29 States and Union Territories have notified rules under the Act as of the date of filing of the counter affidavit; as of the date of filing, 34 States and Union Territories have notified the rules (with the sole exceptions of Nagaland where the process is ongoing and West Bengal which has enacted its separate legislation). The provisions of WB‑HIRA bear an uncanny resemblance to the Act and large portions of the State legislation have been copied verbatim from the central legislation. The Statement of Objects and Reasons of WB‑HIRA also indicates that the purpose was to regulate and promote the housing sector in an efficient and transparent manner in the interests of consumers. The objects of the State legislation are synonymous with the Act and the State statute deals with the same subject matter in an identical manner. The State of West Bengal in effect has set up a parallel mechanism and parallel regime which is similar to the Act on a majority of counts. Though in the counter affidavit, the State of West Bengal sought to justify the State law primarily under Entry 24 of List II of the Seventh Schedule, this stand has been specifically given up at the time of the oral submissions., (III) Article 254 of the Constitution and repugnancy. Repugnancy of a statute enacted by the State legislature with a central statute on a subject in the Concurrent List may arise in any one or more of the following modes: first, there may be an inconsistency or conflict in the actual terms of the competing statutes; second, though there is no direct conflict between a State and Central statute, the latter may be intended to be an exhaustive code occupying the whole field, thereby excluding the operation of the State law on the subject in the Concurrent List; and third, even in the absence of an actual conflict, repugnancy may arise when both the State and Central statutes seek to exercise power over the same subject matter., First test of repugnancy – direct conflict. There is a direct inconsistency between several provisions of the Act and WB‑HIRA. Under the Act, open car parking areas are covered by the definition of common areas in Section 2(n), indicating that they cannot be sold; the State enactment, Section 2(i), allows the car parking area to be prescribed by rules made by the State government. The definition of garage in Section 2(y) of the Act does not include unenclosed or uncovered parking spaces such as open parking areas, whereas Section 2(x) of WB‑HIRA defines the expression garage to mean parking spaces as sanctioned by the competent authority. The Act applies only to real estate projects situated in a planning area while there is no concept of a planning area in the State legislation. Section 6 of the Act specifically confines force‑majeure events to specific eventualities whereas the corresponding provision of the State enactment is much wider leaving it to be prescribed by the rules. Under Section 38(3) of the Act, the Authority has been entrusted with the power to make a reference to the Competition Commission of India in the event of a monopoly situation while there is no such provision in the State enactment. While Section 41 of the Act provides for a Central Advisory Council to advise and recommend the Central government on specific matters, the corresponding provision of WB‑HIRA provides for the establishment of a State Advisory Council chaired by the State Minister of Housing. Unlike Section 70 of the Act which has a provision of compounding of offences, there is no corresponding provision in WB‑HIRA. Section 71(1) provides for the appointment of an adjudicating officer of the rank of a district judge by the regulatory authority for adjudging compensation. Section 40 of WB‑HIRA entrusts the adjudicatory function to the administrative regulatory authority without providing for a judicial officer. Section 80(2) of the Act provides that no court inferior to that of a Metropolitan Magistrate or Judicial Magistrate First Class shall try an offence under the Act, while there is no such provision in WB‑HIRA., The Central government has established a fund of Rs 25,000 crore (known as the Swamit) to provide for last‑mile funding for projects which are net‑worth positive and registered under the Act, including those projects declared as NPAs or those which are the subject matter of proceedings before the National Company Law Tribunal under the Insolvency and Bankruptcy Code. If the State law is allowed to hold the field, buyers of real estate projects in the State of West Bengal which are not registered under the Act will lose the benefit of the above provision., Second test of repugnancy – occupied field. The entire subject of WB‑HIRA is the same as the Act, as a result of which the State law is repugnant to the central legislation. The enforcement of the Act would be completely obstructed in the State of West Bengal if WB‑HIRA is given effect. Sections 88 and 89 of the Act cannot be construed in isolation. While Section 88 permits the existence of other laws in addition to the Act, this would not apply to legislation which would completely derail, obstruct and assault the very existence of the Act. In the decision in Pioneer Urban Land & Infrastructure Ltd. vs Union of India, the provisions of three central enactments were construed harmoniously namely the Act, the Consumer Protection Act, 1986 and the Insolvency and Bankruptcy Code. Construing these enactments harmoniously, the Court held that the Insolvency and Bankruptcy Code and the Consumer Protection Act as well as the Act provide concurrent remedies to allottees of flats which can be exercised at their option. Even assuming that Sections 88 and 89 of the Act are construed as an intent of Parliament not to occupy the field exhaustively, they cannot be implied to allow the operation of State laws which completely eclipse and encroach upon the Act so much so that the existence of the Act is impossible as long as WB‑HIRA is given effect by the State., Third test of repugnancy – implied repeal. The subject matter of both enactments is the regulation of the real estate sector. WB‑HIRA stands in the State of West Bengal in place of the Act. Both cannot stand together. As a matter of fact, while WB‑HIRA is fully operational in the State of West Bengal, the Act is non‑operational. The only exception would be where the State legislation contains distinct matters which are of a cognate and allied nature. However, in the present case, WB‑HIRA deals on all fours with the subject matter of the Act and not with any distinct matter which is cognate or allied. The State enactment has created an identical but parallel and mutually exclusive regime in the State of West Bengal, which cannot co‑exist with the regime enacted under the Act. On the above grounds, it has been submitted that the State enactment fails all three tests of repugnancy. While the failure of the first test would only require WB‑HIRA to yield to the Act to the extent of the repugnancy, since the State enactment in the present case completely obstructs and hinders the Parliamentary law, the repugnancy is, according to the submission, absolute and complete., G.3 For the State of West Bengal. Mr Rakesh Dwivedi, learned Senior Counsel appearing on behalf of the State of West Bengal, urged the following submissions: (I) RERA does not cover the whole field and is not exhaustive. An analysis of the Act would indicate that its objective is to regulate and promote the real estate sector and to ensure the sale of plots, apartments, buildings and real estate projects in an efficient and transparent manner. The other object is to protect consumer interest and establish an adjudicating mechanism for speedy resolution of disputes, including appeals. A survey of the provisions of the Act would indicate that it is based on plans sanctioned and approved by competent authorities under State enactments. The sanctioned plan provides a specific period for construction and local bodies are responsible for the sanctioning of plans under local laws. Similarly, local authorities provide for completion certificates. The diverse provisions of the Act contemplate the jurisdiction of local authorities governed by State laws in the matter of sanctioning of plans and completion of construction projects. This is supported by references to the planning area (Section 2(zh)) and appropriate government (Section 2(g)) of the Act., The provisions of Sections 88 and 89 of the Act indicate that the central legislation is not a complete or exhaustive code on the subject matter legislated upon by Parliament., (II) Constitutional validity. While enacting the Act in exercise of its legislative powers under Articles 245 and 246 of the Constitution, Parliament has enacted the legislation on the subjects assigned to it under Entries 6 and 7 of List III of the Seventh Schedule which pertain to transfer of property and contracts not relating to agricultural land. Since the enactment in the State of West Bengal follows the provisions of the Act broadly and substantially, the State enactment would also be covered by Entries 6 and 7 of List III of the Seventh Schedule. In the Counter Affidavit filed by the State of West Bengal it was contended that the State enactment falls under Entry 24 of List II, as it deals with the housing industry. This contention is not correct and is not being pressed. The ambit of Entry 24 of List II has been explained in the decisions of the Constitution Bench in Tika Ramji vs State of Uttar Pradesh and ITC Ltd vs Agricultural Produce Market Committee to exclude those subjects which are specifically included in the other Entries of List III in the Seventh Schedule., In view of the above position, Entry 24 of List II will not cover the field which is covered by Entries 6 and 7 of List III. Hence, the present case has to be adjudicated upon by considering both the Act and WB‑HIRA as being referable to subjects in the Concurrent List. Consequently, the Supreme Court of India will have to determine as to whether Article 254 has a nullifying effect on the State enactment., (III) Article 254 and Repugnancy. In view of the language of Article 254, the State law would be void only if it is inconsistent with and repugnant to a law made by Parliament in the Concurrent List and, in such an event, only to the extent of the repugnancy. Repugnancy would arise if there is a conflict between a State enactment and a central enactment which cannot be reconciled or if the central enactment occupies the whole field completely and exhaustively. Applying the above tests, there is no repugnancy or inconsistency between WB‑HIRA and the Act. Irrespective of Sections 88 and 89 of the Act, Article 254 is not attracted. The submission of the petitioner is based on the substantial identity between WB‑HIRA and the Act. This substantial identity is indicative of consonance, conformity and symmetry. Identity of subject matter does not constitute inconsistency or repugnancy, particularly when the central enactment is not a complete and exhaustive code. In the present case, the State law is complementary to the central law., (IV) Sections 88 and 89 of the Act. Sections 88 and 89 indicate that the Act was not intended by Parliament to be a complete and exhaustive code nor is it intended to be exclusive in operation. Sections 88 and 89 allow other laws to operate and wherever there is an inconsistency with the Act, the central act would prevail. Sections 88 and 89 indicate a Parliamentary intent that the Act should coexist with other legislations. Section 88 refers to any other law for the time being in force. Such an expression has been construed by this Court to cover laws which were operating when the Act was enacted as well as laws made after the enforcement of the Act. The expression ‘laws for the time being in force’ has been deployed in Section 2(zr) and Section 18(2) of the Act as well as in Section 89. This supports the contention of the State of West Bengal., Parliament has chosen to repeal only the Maharashtra Act by way of Section 92 of the Act. Prior to WB‑HIRA, in the State of West Bengal, the West Bengal 1993 Act was operating. Parliament did not repeal this Act. The West Bengal 1993 Act was repealed only by Section 86 of WB‑HIRA to align the State Act with the Act. The fact that Parliament repealed only the Maharashtra Act indicates that the Act does not evince any intention to shut out other State enactments. On the contrary the Parliamentary intent is to make the Act permissive and accommodative of State legislation., The fact that other states had not enacted a law like WB‑HIRA does not take away the plenary legislative powers of the State of West Bengal. In exercise of the rule‑making power under Section 80(1) of WB‑HIRA, the State of West Bengal framed rules on 5 June 2018. A dedicated website has been made operational. The regulatory authority was established on 23 July 2018 while its Chairperson and Members were appointed on 25 June 2020 and 30 June 2020. The Appellate Tribunal was established on 29 July 2019 and both the Authority and the Appellate Tribunal are adjudicating all complaints., One of the reasons for enacting WB‑HIRA was to enable the State to have its own State Advisory Council for advising and recommending to the State government on the implementation of the law on major questions of policy, protection of consumer interest and development of the real estate sector., (V) The few inconsistencies between WB‑HIRA and the Act are of a minor nature. There is no real conflict with the provisions of the Act under which an adjudicating officer decides disputes as to compensation under Section 71. Under Section 31, a complaint can be filed both before the Authority and the Adjudicating Officer. Under WB‑HIRA, the Authority decides and there is an appeal provided to the Tribunal and then to the High Court. Consequently, there is no conflict. While under WB‑HIRA, the Chairperson of the Tribunal can be removed in consultation with the Chief Justice of the High Court, as in the case of the Act, both Acts contemplate an enquiry by a Judge of the High Court. This secures the independence of the Chairperson. As regards the definition of garage, planning area, and force majeure, there is no significant difference. The Act adopts a declaration of planning area in the law relating to Town and Country Planning of the State and hence a separate provision in the State Act is not required. Similarly, the definitions of garage and force majeure are not variant. The State Advisory Council is to act in compliance with the rules framed by the Central government. Where the rules have not been framed by the Central government or there is an issue which is not governed by the Central Act, the State can prescribe a rule or policy on the recommendation of the State Advisory Council. Sections 83 and 84 of the Act contemplate a role for the State in this regard. Under the Act, grants are made by the Central government whereas under WB‑HIRA grants are given by the State government. This does not result in a conflict. The State cannot provide for grants by the Central government. Moreover, there is nothing to prevent the Central government from making a grant under Article 282 of the Constitution. Even if the Central Act provides certain additional features which are absent in the State Act, the State Act would be bound to treat those as being superimposed on the State law in view of Section 89 of the Act. Moreover, a Removal of Difficulties Order can be issued under Section 85 of WB‑HIRA. Article 256 of the Constitution does not enable the Union Executive to give directions to the State legislature. Federalism is a basic feature of the Constitution. WB‑HIRA follows the principle of cooperative federalism. The Union government has no authority to direct the State legislature to repeal its law., H Analysis. H.1 Entry 24, List II – West Bengal housing industry defence. The interesting feature of the case with which we commence the discussion is that when it was enacted, WB‑HIRA was intended to cover the field of housing industry under Entry 24 of List II. The Statement of Objects and Reasons to the WB‑HIRA Bill notes that: “Since the housing comes under the periphery of industry, it is contemplated that the State Government should go for its own State Legislation.” The long title to the State enactment explains that WB‑HIRA is an act to establish a Housing Industry Regulatory Authority for regulation and promotion of the housing sector., In the Counter Affidavit filed on behalf of the State of West Bengal before this Court, the subject of the legislation is asserted to fall within the purview of the following Entries in the State List of the Seventh Schedule to the Constitution: Entry 5 – Local Government; Entry 18 – Land; Entry 24 – Industries subject to the provisions of entries 7 and 52 of List I; Entry 35 – Works, lands and buildings vested in or in the possession of the State; Entry 64 – Offences against laws with respect to any of the matters in this List; Entry 66 – Fees in respect of any of the matters in this List, but not including fees taken in any court. Even as among the above Entries, the Counter Affidavit substantively dwells on Entry 24 of the State List. The defence in the Counter is that (i) housing as an industry falls in Entry 24 of the State List; (ii) Entry 24 is subject to the provisions of Entries 7 and 52 of List I; (iii) there is no declaration by Parliament within the Seventh Schedule that industries declared by Parliament by law to be necessary for the purpose of defence or for the prosecution of war; (iv) WB‑HIRA falls within the ambit of industry in Entry 24 of the State List. That indeed is the basis of the Counter Affidavit., Paragraphs 15, 16 and 17 of the Counter Affidavit are extracted below: 15. It is most respectfully submitted that, as per WB‑HIRA “housing” comes under the meaning of “Industry”. Therefore, the State Government ought to go for curated legislations, specific to the need of the State. Furthermore, State law can also be amended by the State itself without approaching the central government as and when the occasion arises to meet the necessity of the people of the state. That, even the Real Estate Activities being an industry, vests in the State Legislature competence to enact a legislation on the subject matters by virtue of Entry 24 of the State List in the Seventh Schedule to the Constitution since the matter falls within the purview of the State list unless brought under the Control of the Union by the relevant Legislation., 16. That it is imperative to note that Entry 24 of the State List in its widest amplitude takes in all Industries. In other words, the legislative power of the State under Entry 24 of the State List is eroded only to the extent to which control was assumed by the Union pursuant to a declaration made by Parliament under Entry 52 of the Union List. In the absence thereof, under Entry 52 of the Union List, the State Legislature will have power to legislate under Entry 24 of the State List. That under Entry 52 of the Union List, it is required that an express declaration be made by the Parliament, an abstract declaration is not contemplated. In the event the Parliament passes a law containing a declaration specifying the industry and indicating the nature and extent of the Union control over the concerned industry, then to that limited extent the State’s legislative power is curtailed. It is reiterated that even in the case of a declaration under Entry 52 by the Central Government, “industry” as a whole is not taken out of Entry 24 of the State List., 17. That, in furtherance of the above, it is further submitted that a perusal of the Act exhibits that there is no declaration even in the abstract that the Union intends to assume control over the real estate sector., As a matter of fact, it has also been urged that Entries 6 and 7 of the Concurrent List would not cover the subject of the housing industry since the field covered by these Entries merely enables the manner and mode in which property is to be transferred and contracts are to be executed. This submission is sought to be buttressed by stating that WB‑HIRA is merely an extension of the Act with a wider purview of the housing industry as opposed to the Act which deals with a limited extent only with real estate. In other words, since the legislation falls under Entry 24 of the State List, there was in the submission – no necessity of reserving the law for the assent of the President., Faced with the judgments of the Supreme Court of India defining the ambits of the expression industry in the Union and the State Lists, the basis of asserting the legislative competence of the State legislature (industry in Entry 24 of List II) over the subject of the State enactment as set out in the Counter Affidavit has been specifically given up in the course of the oral submissions in this Court. The written submissions that have been placed on the record during the hearing specifically state that the claim of WB‑HIRA being referable to Entry 24 of the State List as it deals with housing industry is not accurate and is not being pressed., Before proceeding with the discussion any further, it would be necessary for the Supreme Court of India to dwell on the concession which has been made on behalf of the State of West Bengal. The concession is based on a correct assessment of the ambit of the expression industry in the three lists. In Tika Ramji vs State of Uttar Pradesh, there was a challenge to the validity of the UP Sugarcane (Regulation of Supply and Purchase) Act 1953 under which the UP Sugarcane Supply and Purchase Order 1954 was made.
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The vires of the Industries (Development and Regulation) Act 1951 were challenged on the ground that the Act related to the subject of industries, the control of which by the Union is declared by Parliament by law to be expedient in the public interest within the meaning of Entry 52 of List I. Parliament enacted the Act declaring that it was expedient in the public interest that the Union should take in its control the industries specified in the First Schedule, which included the industry engaged in the manufacture or production of sugar. In Tika Ram ji (supra), the argument was that the expression 'industries' should be construed as not only including the process of manufacture or production but also antecedent activities such as acquisition of raw material and subsequent activities such as disposal of finished products. A Constitution Bench of the Supreme Court of India held that the expression 'industry' in its wide sense would be capable of comprising three different aspects: first, raw materials which are an integral part of the industrial process; second, the process of manufacture and production; and third, distribution of the products of the industries., The Court held that the process of manufacture or production would be comprised in Entry 24 of List II except where the industry is a controlled industry, when it would fall under Entry 52 of List I. The Constitution Bench rejected the contention that the expression 'industries' in Entry 52 of List I was wide enough to encompass the power to legislate in respect of raw material said to be an integral part of the industrial process or the distribution of the products of the industry. The decision in Tika Ram ji (supra) was followed by a Constitution Bench in Calcutta Gas Co. (Proprietary) versus State of West Bengal which held that the expression 'industry' in all three Lists must be given the same meaning and, since ordinarily industry is in the field of State legislation, the word must be construed in such a manner that no entry in List II is deprived of its entire content., A Constitution Bench of the Supreme Court of India in ITC Ltd. versus Agricultural Produce Market Committee reiterated the principles enunciated in Tika Ram ji (supra). Justice Y. K. Sabharwal, as the learned Chief Justice then was, speaking for himself and Justice Brijesh Kumar, reiterated the principles adopted by the Constitution Bench in Tika Ram ji (supra). After considering the precedents of the Supreme Court of India, the judgment reiterated the principles enunciated in Tika Ram ji (supra). In a concurring judgment, Justice Ruma Pal noted: 'To sum up: the word industry for the purposes of Entry 52 of List I has been firmly confined by Tika Ram ji [1985 Supplement Supreme Court Cases 476: 1985 Supplement (1) All India Reporter 145] to the process of manufacture or production only.' Subsequent decisions, including those of other Constitution Benches, have reaffirmed that the Tika Ram ji case [All India Reporter 1956 Supreme Court 676: 1956 Supreme Court Reporter 393] authoritatively defined the word 'industry' to mean the process of manufacture or production and that it does not include the raw materials used in the industry or the distribution of the products of the industry., In view of the settled exposition of the ambit of Entry 24 of List II to the Seventh Schedule, there can be no doubt that the subject of West Bengal Housing Industry Regulatory Authority (WB-HIRA) is not an industry within the meaning of Entry 24. Both the central legislation Real Estate (Regulation and Development) Act (RERA) and the State legislation WB-HIRA have substantially similar provisions. These provisions seek to regulate the contractual relationship between builders/promoters and their buyers in the real estate sector. They recognize rights and obligations among promoters, buyers and real estate agents. Both the State law and the Central law provide for remedial measures to enforce compliance with contractual rights and corresponding obligations. Hence, the arguments before the Supreme Court of India have been addressed on the basis that the subject of both the central and the State legislations RERA and WB-HIRA falls under Entries 6 and 7 of the Concurrent List to the Seventh Schedule. Entry 6: Transfer of property other than agricultural land; registration of deeds and documents. Entry 7: Contracts, including partnership, agency, contracts of carriage, and other special forms of contracts, but not including contracts relating to agricultural land., It is true that the defence set up before the Supreme Court of India in the Counter Affidavit is premised on the State enactment being a law on the subject of industries falling within the ambit of Entry 24 of the State List. The genesis of this defence traces its origin to the Statement of Objects and Reasons accompanying the Bill when it was introduced in the West Bengal State Legislature. Indeed, the long title also indicates that the State legislation sought to establish a Housing Industry Regulatory Authority. However, these references in the Statement of Objects and Reasons, the long title and the Counter Affidavit do not preclude the State of West Bengal from asserting, in the course of the submissions, that the State legislation in substance is not one which is on the subject of industries within the meaning of Entry 24 of List II and that it falls within the ambit of Entries 6 and 7 of List III., The analysis of the constitutional challenge in the present case must therefore proceed on the basis that both the central legislation RERA and the State legislation WB-HIRA fall within the subjects embodied in Entries 6 and 7 of List III of the Seventh Schedule. That indeed is the foundation on which submissions have been urged and the further analysis is based. In a matter involving the constitutional validity of its law, the State of West Bengal has not been precluded by the Supreme Court of India from urging the full line of its defence., H.2 The Constitutional Scheme of Article 254 and repugnancy. The distribution of legislative powers in Part XI of the Constitution envisages that Parliamentary legislation extends to the entire territory of India or any part thereof while State legislation extends law to the whole or any part of a State. Under Article 246, the legislative power to make laws with respect to any of the matters enumerated in List I of the Seventh Schedule (the Union List) is entrusted to Parliament. Clause (1) of Article 246 embodies this principle and is prefaced with a non‑obstante provision giving it precedence over clauses (2) and (3). Article 246(2) enunciates the principles governing the exercise of legislative power to make laws with respect to any of the matters enumerated in List III of the Seventh Schedule (the Concurrent List). Clause (2) begins with a non‑obstante provision which gives it precedence over Clause (3). Clause (3) stipulates that the legislature of any State has the exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II of the Seventh Schedule (the State List). Some salient features of Article 246 are: (i) exclusive power has been entrusted to Parliament to legislate on matters enumerated in List I; (ii) the plenary power entrusted to Parliament to legislate with respect to a matter enumerated in List I is reaffirmed by the non‑obstante provision; (iii) on matters enumerated in List III, Parliament has the power to make laws notwithstanding clause (3) and the State legislature also has the power to make laws subject to clause (1); (iv) the State legislatures have the exclusive powers to make laws for the State or any part of it with respect to matters in List II, subject to clauses (1) and (2); (v) clauses (1) and (2) employ non‑obstante provisions in respect of the exclusive power entrusted to Parliament over List I matters and the power entrusted to Parliament over List III matters; (vi) though the legislature of a State has exclusive power to make laws with respect to matters on the State List, this is subject to clauses (1) and (2)., Parliament, under Article 248, has been entrusted with the residuary powers of legislation (subject to Article 246A) to make any law with respect to any matter which is not enumerated in the Concurrent or State Lists. The 101st Amendment to the Constitution, which came into force on 16 September 2016, inserted Article 246A to make a special provision with respect to the Goods and Services Tax (GST). Article 246A begins with a non‑obstante provision, giving it overriding force over Articles 246 and 254. Under clause (1), Parliament and, subject to clause (2), the legislature of a State have the power to make laws with respect to GST imposed by the Union or by the State. Under clause (2), Parliament has been entrusted with the exclusive power to make laws with respect to GST where the supply of goods, services or both takes place in the course of inter‑state trade and commerce., Article 254 contains provisions for inconsistencies between laws made by Parliament and by the legislatures of the States. Clause (1) of Article 254 stipulates that where a State law is repugnant to a Parliamentary law which Parliament is competent to enact, or to a provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then the law made by Parliament shall prevail and the State law shall, to the extent of the repugnancy, be void. The provisions of clause (1) are subject to clause (2). Clause (2) provides that if a State law on a matter enumerated in the Concurrent List contains a provision repugnant to an earlier law of Parliament or an existing law, then the State law shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State. Nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter, including a law adding to, amending, varying or repealing the State law., Some salient features of Article 254 may be noticed: (i) Article 254(1) embodies the concept of repugnancy on subjects within the Concurrent List on which both the State legislatures and Parliament are entrusted with the power to enact laws; (ii) a law made by the legislature of a State which is repugnant to Parliamentary legislation on a matter enumerated in the Concurrent List must yield to the Parliamentary law whether enacted before or after the State law; (iii) in the event of a repugnancy, the Parliamentary legislation shall prevail and the State law shall, to the extent of the repugnancy, be void; (iv) the consequence of a repugnancy between the State legislation and a law enacted by Parliament within the ambit of List III can be cured if the State legislation receives the assent of the President; (v) the grant of Presidential assent under clause (2) of Article 254 will not preclude Parliament from enacting a law on the subject matter, as stipulated in the proviso to clause (2)., A long line of precedent of the Supreme Court of India has developed on the content of the concept of repugnancy as envisaged in Article 254. In Zaverbhai Amaldas versus State of Bombay, the contention of the State was that, as a result of the Essential Supplies (Temporary Powers) Act (Act 24 of 1946) and its amendments, Section 2 of Bombay Act 36 of 1947 had become inoperative. Justice T. L. Venkatarama Aiyar, speaking for the Constitution Bench, held that there was no express repeal of the Bombay Act by Central Act 52 of 1950 in terms of the proviso to Article 254(2). The Court considered whether the amendments made to the Essential Supplies (Temporary Powers) Act by the Central legislature were further legislation under Section 107(2) of the Government of India Act, 1947, or a law with respect to the same matter falling within Article 254(2). The Court observed that the important question is whether the legislation is in respect of the same matter; if the later legislation deals with distinct matters, Article 254(2) will have no application. The principle is that when both Centre and Province are competent to enact on the same ground, the law of the Centre should prevail over that of the State., The judgment of the Constitution Bench in Tika Ram ji (supra) explained the concept of repugnancy arising by reason of both Parliament and the State legislature having operated in the same field in respect of a matter enumerated in the Concurrent List. Justice N. H. Bhagwati adopted the three tests of repugnancy on inconsistency spelt out by Nicholas in his text on the Australian Constitution: (1) inconsistency in the actual terms of the competing statutes; (2) a State law may be inoperative because the Commonwealth law is intended to be a complete exhaustive code; (3) a conflict may arise when both State and Commonwealth seek to exercise their powers over the same subject‑matter., Section 109 of the Australian Constitution envisages a style of federalism and repugnancy in similar terms to the Indian Constitution, and Australian jurisprudence is instructive in interpreting repugnancy between provisions of State law and Parliamentary enactments. The Constitution Bench in Zaverbhai thereafter cited judgments of the High Court of Australia. Isaacs, J., in Clyde Engineering Company Limited v. Cowburn laid down a conclusive test of inconsistency: if a competent legislature expressly or implicitly evinces its intention to cover the whole field, that is a conclusive test of inconsistency where another legislature assumes to enter any extent upon the same field. Dixon, J., elaborated this theme in Ex parte McLean, stating that when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail to the extent of the inconsistency. The observations of Evatt, J., in Stock Motor Plough Ltd. v. Forsyth emphasized that State and Federal laws may be inconsistent even if obedience to both is possible, because the Federal statute intends to cover the field exhaustively., The decision also referred to a judgment of Justice B. N. Rau, speaking for the Calcutta High Court in O. P. Stewart versus B. K. Roy, where it was observed that repugnancy does not require a direct conflict; there may be cases where both laws say 'do not' but in different ways, making one law effectively nullified. The Court held that there was no inconsistency in the actual terms of the Acts enacted by Parliament and the impugned Act; the only questions were whether Parliament and the State Legislature sought to exercise their powers over the same subject‑matter or whether the Parliamentary law was intended to be a complete exhaustive code., To complete this trinity of cases, the decision in Deep Chand versus State of Uttar Pradesh was considered. The Constitution Bench dealt with whether the provisions of the Uttar Pradesh Transport Service (Development) Act, 1955 were repugnant to the provisions of the subsequent Parliamentary enactment the Motor Vehicles (Amendment) Act 1956. As in Tika Ram ji, the Court cited the three‑pronged test of repugnancy formulated by Nicholas. Justice K. Subba Rao, in his separate opinion, reformulated the principle: (1) whether there is direct conflict between the two provisions; (2) whether Parliament intended to lay down an exhaustive code in respect of the subject‑matter replacing the State Act; (3) whether the law made by Parliament and the law made by the State Legislature occupy the same field. The judgment noted that a comparison of the provisions indicated that both legislations were intended to operate in respect of the same subject matter in the same field.
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Justice K. Subba Rao noted that the unamended Motor Vehicles Act 1939 did not make any provision for the nationalisation of transport services but the States introduced amendments to implement the scheme of nationalisation of road transport. With a view to introduce a Union law throughout the country, Parliament enacted the Amendment Act by inserting Chapter IVA in the Motor Vehicles Act, 1939. This object, the Supreme Court of India ruled, would be frustrated if the argument that both the Union Parliament Act and the Amending Act should co-exist in respect of schemes to be framed after the Amendment Act, were accepted. Additionally, the learned judge also observed that the provisions of the scheme, the principles of compensation and the manner of its payment differed in the two Acts., In State of Orissa versus M. A. Tulloch, the legislation in issue was the Orissa Mining Areas Development Fund Act, 1952 under which certain areas were constituted as mining areas and the State government was empowered to levy a fee at a percentage of the value of the mined ore at the pit's mouth. Entry 23 of the State List covers regulation of mines and mineral development subject to the provisions of List I with respect to regulation and development under the control of the Union. Entry 54 of the Union List deals with regulation of mines and mineral development to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest. Parliament subsequently enacted the Mines and Minerals (Development and Regulation) Act, 1957 which contains the declaration envisaged by the latter part of Entry 54 of the Union List. The High Court had held that on the coming into force of the Central Act, the Orissa Act ceased to be operative by reason of the withdrawal of legislative competence since the entry in the State List is subject to a Parliamentary declaration and a law enacted by Parliament., Justice N. Rajagopala Ayyangar, speaking for the Constitution Bench, dealt with the issue of repugnancy in the following observations: Repugnancy arises when two enactments both within the competence of the two Legislatures collide and when the Constitution expressly or by necessary implication provides that the enactment of one legislature has superiority over the other then to the extent of the repugnancy the one supersedes the other. But two enactments may be repugnant to each other even though obedience to each of them is possible without disobeying the other. The test of two legislations containing contradictory provisions is not, however, the only criterion of repugnancy, for if a competent legislature with a superior efficacy expressly or impliedly evinces by its legislation an intention to cover the whole field, the enactments of the other legislature whether passed before or after would be overborne on the ground of repugnance. Where such is the position, the inconsistency is demonstrated not by a detailed comparison of provisions of the two statutes but by the mere existence of the two pieces of legislation. The Supreme Court of India held that the intent of the subsequent Parliamentary enactment was to cover the entire field and there was an implied repeal of the Orissa Act., In 1979, a Constitution Bench in M. Karunanidhi versus Union of India revisited the issue of repugnancy in the context of the Tamil Nadu Public Men (Criminal Misconduct) Act, 1973. Though the State legislation was subsequently repealed, it was urged that during the time that it was in force, it was repugnant to the provisions of the Indian Penal Code, the Prevention of Corruption Act and the Criminal Law (Amendment) Act, 1952. The State Act had the assent of the President. Hence by virtue of Article 254(2), it was urged that the aforementioned Central Acts stood repealed and could not revive even after the State Act was repealed. Justice S. Murtaza Fazal Ali formulated the principles governing repugnancy in the following observations: (1) Where the provisions of a Central Act and a State Act in the Concurrent List are fully inconsistent and are absolutely irreconcilable, the Central Act will prevail and the State Act will become void in view of the repugnancy. (2) Where however a law passed by the State comes into collision with a law passed by Parliament on an Entry in the Concurrent List, the State Act shall prevail to the extent of the repugnancy and the provisions of the Central Act would become void provided the State Act has been passed in accordance with clause (2) of Article 254. (3) Where a law passed by the State Legislature while being substantially within the scope of the entries in the State List entrenches upon any of the Entries in the Central List the constitutionality of the law may be upheld by invoking the doctrine of pith and substance if on an analysis of the provisions of the Act it appears that by and large the law falls within the four corners of the State List and entrenchment, if any, is purely incidental or inconsequential. (4) Where, however, a law made by the State Legislature on a subject covered by the Concurrent List is inconsistent with and repugnant to a previous law made by Parliament, then such a law can be protected by obtaining the assent of the President under Article 254(2) of the Constitution. The result of obtaining the assent of the President would be that so far as the State Act is concerned, it will prevail in the State and overrule the provisions of the Central Act in their applicability to the State only. Such a state of affairs will exist only until Parliament may at any time make a law adding to, or amending, varying or repealing the law made by the State Legislature under the proviso to Article 254., The Constitution Bench held that although the ingredients of criminal misconduct as defined in Section 5(1)(d) of the Prevention of Corruption Act were substantially the same in the State Act as in the Central Acts, the prescribed punishment varied. The Court held that the State Act did not contain a provision repugnant to the Central Acts but it was a sort of complementary Act which runs pari passu the Central Acts. The Court observed that in the original State Act, Section 29 ran thus: “Act to override other laws, etc. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any custom, usage or contract or decree or order of a court or other authority.” This section underwent an amendment brought about by Tamil Nadu Act 16 of 1974 which substituted a new Section 29. The new section reads: “Saving – The provisions of this Act shall be in addition to, and not in derogation of, any other law for the time being in force, and nothing contained herein shall exempt any public man from any proceeding by way of investigation or otherwise which might, apart from this Act, be instituted against him.” This amendment received the assent of the President on 10 April 1974 and was published in the Tamil Nadu Government Gazette Extraordinary dated 16 April 1974. The Act was brought into force on 8 May 1974 when the new Section 29 had already replaced the old section and had become a part of the statute. Therefore, for all intents and purposes the State Act cannot be read in isolation, but has to be interpreted in conjunction with the express language contained in Section 29 of the State Act. This section unequivocally expressed the intention that the State Act, which was undoubtedly the dominant legislation, would only be in addition to and not in derogation of any other law for the time being in force, which manifestly includes the Central Acts, namely, the Indian Penal Code, 1860, the Prevention of Corruption Act and the Criminal Law (Amendment) Act. The second part of Section 29 also provides that nothing contained in the State Act shall exempt any public man from being proceeded with by way of investigation or otherwise under a proceeding instituted against him under the Central Acts. It is therefore clear that in view of this clear intention of the legislature there can be no room for any argument that the State Act was in any way repugnant to the Central Acts., A three‑judge Bench of the Supreme Court of India in Hoechst Pharmaceuticals Ltd. versus State of Bihar considered the constitutional validity of Section 5(1) of the Bihar Finance Act, 1981 which provided for the levy of a surcharge on every dealer whose gross turnover during a year exceeded Rs 5 lakh, in addition to the tax payable by him. The Act received the assent of the President. The challenge was on the ground that the price fixation of essential commodities in general and drugs and formulations in particular was an occupied field by various control orders issued by the Union government under Section 3(1) of the Essential Commodities Act, 1955. Justice A. P. Sen, speaking for the three‑judge Bench, rejected the arguments of the appellant that there was a repugnancy between sub‑Section (3) of Section 5 which was relatable to Entry 54 of List II and the control order issued by the Central government under Section 3(1) of the Essential Commodities Act relatable to Entry 33 of List III. The Supreme Court of India held that the question of repugnancy under Article 254(1) between a law made by Parliament and the law made by the State legislature arises only in case both the legislations occupy the same field with respect to one of the matters enumerated in the Concurrent List and there is a direct conflict between the two laws. Article 254(1) has no application to cases of repugnancy due to overlapping found between List II on the one hand and Lists I and III on the other. In such a case, the State law will fail not because of repugnancy to the Union law but due to want of legislative competence. The Court rejected the argument that sub‑Section (3) of Section 5 being a State law must be struck down as ultra vires on the ground that the fixation of the price of essential commodities was an occupied field covered by central legislation. The power of the State legislature to make a law with respect to the levy and imposition of a tax on the sale or purchase of goods (relatable to Entry 54 of List II) and to make ancillary provisions is plenary and was not subject to the power of Parliament to make a law under Entry 33 of List III. There was therefore no question of a clash between the two laws and the question of repugnancy does not come into play., In State of Kerala versus Mar Appraem Kuri Company Ltd., a Constitution Bench dealt with the question as to whether the Kerala Chitties Act, 1975 became repugnant to the Chit Funds Act, 1982 enacted by Parliament on the date when the Parliamentary legislation received the assent of the President or subsequently, when a notification was issued under Section 1(3) bringing the Central Act into force in the State of Kerala. Chief Justice S. H. Kapadia noticed various provisions of the State Act in conflict with the Central legislation. The Court held that the Act of 1982 was enacted as a Central legislation to ensure uniformity in the provisions applicable to Chit Fund institutions throughout the country. There was thus an intent to occupy the entire field falling under Entry 7 of List III. A significant aspect of the Central legislation was Section 3 which gave overriding effect to the law enacted by Parliament. Moreover, Section 90 provided for the repeal of State legislations, manifesting, in the view of the Court, an intent of Parliament to occupy the field hitherto occupied by the State legislations. The Court observed that every aspect relating to the conduct of chits as was covered by the State Act had been touched upon by the Central Act in a more comprehensive manner. The Court held that on the enactment of the Central legislation on 19 August 1982, intending to occupy the entire subject of chits under Entry 7 of List III, the State Legislature was denuded of its power to enact a law on the subject., A two‑judge Bench of the Supreme Court of India in Innoventive Industries Ltd. versus ICICI Bank dealt with the provisions of the Maharashtra Relief Undertakings (Special Provisions) Act, 1958 vis‑vis the provisions of the Insolvency and Bankruptcy Code. Speaking through Justice R. F. Nariman the Court held that the Insolvency and Bankruptcy Code is an exhaustive code on the subject matter of insolvency in relation to corporate entities, referable to Entry 9 of List III of the Seventh Schedule which deals with bankruptcy and insolvency. The subject covered by the Maharashtra legislation fell within Entry 23 of List III which deals with social security and social insurance; employment and unemployment. The Court formulated the three tests of repugnancy in the following terms: Repugnancy may be direct in the sense that there is inconsistency in the actual terms of the competing statutes and there is, therefore, a direct conflict between two or more provisions of the competing statutes. Though there may be no direct conflict, a State law may be inoperative because the Parliamentary law is intended to be a complete, exhaustive or exclusive code. A conflict may arise when Parliamentary law and State law seek to exercise their powers over the same subject matter. This need not be in the form of a direct conflict, where one says do and the other says don’t. Laws under this head are repugnant even if the rule of conduct prescribed by both laws is identical., Our journey of tracing the precedents of this Court, commencing from Zaverbhai up until Innoventive Industries indicates a thread of thought dwelling on when, within the meaning of Article 254(1), a law made by the legislature of a State can be considered to be repugnant to a provision of a law made by Parliament with respect to one of the matters in the Concurrent List which Parliament is competent to enact. The doctrine of repugnancy under Article 254(1) operates within the fold of the Concurrent List. Clause (1) of Article 254 envisages that the law enacted by Parliament will prevail and the law made by the legislature of the State shall be void to the extent of repugnancy. Clause (1) does not define what is meant by repugnancy. The initial words of Clause (1) indicate that the provision deals with a repugnancy between a law enacted by the State legislature with: (i) a provision of a law made by Parliament which it is competent to enact; (ii) any provision of an existing law; and (iii) with respect to one of the matters enumerated in the Concurrent List. The initial part of Clause (1) alludes to a law enacted by a state legislature being repugnant to a law enacted by Parliament or to an existing law. The concluding part of clause 1 provides for a consequence, namely that the State law would be void to the extent of the repugnancy and the Parliamentary enactment shall prevail. The concept of repugnancy emerges from the decisions of this Court which have elaborated on the context of clause (1) of Article 254. Clause (2) of Article 254 has also employed the expression repugnant while providing that a law enacted by the legislature of a State which is repugnant to a law enacted by Parliament or an existing law on a matter within the Concurrent List shall, if it has received the assent of the President, prevail in the State. The decisions of this Court essentially contemplate three types of repugnancy: (i) The first envisages a situation of an absolute or irreconcilable conflict or inconsistency between a provision contained in a State legislative enactment with a Parliamentary law with reference to a matter in the Concurrent List. (ii) The second situation involving a conflict between State and Central legislations may arise where Parliament has evinced an intent to occupy the whole field. (iii) The third test of repugnancy is where the law enacted by Parliament and by the State legislature regulate the same subject. The distinction between the first test on the one hand with the second and third tests on the other lies in the fact that the first is grounded in an irreconcilable conflict between the provisions of the two statutes each of which operates in the Concurrent List. The second and third tests, on the other hand, are not grounded in a conflict borne out of a comparative evaluation of the text of the two provisions. Where a law enacted by Parliament is an exhaustive code, the second test may come into being. The third test of repugnancy may arise where both the Parliament and the State legislation cover the same subject matter. Allowing the exercise of power over the same subject matter would trigger the application of the concept of repugnancy. This may implicate the doctrine of implied repeal in that the State legislation cannot co‑exist with a legislation enacted by Parliament. But even here if the legislation by the State covers distinct subject matters, no repugnancy would exist. In deciding whether a case of repugnancy arises on the application of the second and third tests, both the text and the context of the Parliamentary legislation have to be borne in mind. The nature of the subject matter which is legislated upon, the purpose of the legislation, the rights which are sought to be protected, the legislative history and the nature and ambit of the statutory provisions are among the factors that provide guidance in the exercise of judicial review. The text of the statute would indicate whether Parliament contemplated the existence of State legislation on the subject within the ambit of the Concurrent List. Often times, a legislative drafts person may utilize either of two legislative techniques. The draftsperson may provide that the Parliamentary law shall have overriding force and effect notwithstanding anything to the contrary contained in any other law for the time being in force. Such a provision is indicative of a Parliamentary intent to override anything inconsistent or in conflict with its provisions. The Parliamentary legislation may also stipulate that its provisions are in addition to and not in derogation of other laws. Those other laws may be specifically referred to by name, in which event this is an indication that the operation of those specifically named laws is not to be affected. Such a legislative device is often adopted by Parliament by saving the operation of other Parliamentary legislation which is specifically named. When such a provision is utilized, it is an indicator of Parliament intending to allow the specific legislation which is enlisted or enumerated to exist unaffected by a subsequent law. Alternatively, Parliament may provide that its legislation shall be in addition to and not in derogation of other laws or of remedies, without specifically elucidating any other legislation. In such cases where the competent legislation has been enacted by the same legislature, techniques such as a harmonious construction can be resorted to in order to ensure that the operation of both statutes can co‑exist. Where, however, the competing statutes are not of the same legislature, it then becomes necessary to apply the concept of repugnancy, bearing in mind the intent of Parliament. The primary effort in the exercise of judicial review must be an endeavour to harmonise. Repugnancy in other words is not an option of first choice but something which can be drawn where a clear case based on the application of one of the three tests arises for determination., While proceeding with the analysis on the basis of the above foundation, two aspects of the Real Estate (Regulation and Development) Act must be noticed at the forefront. Firstly, the Real Estate (Regulation and Development) Act factors in the existence of municipal or local authorities constituted under State legislation whose powers and functions in regard to the development of land are regulated by legislation enacted by the State legislatures. The Real Estate (Regulation and Development) Act recognizes that local bodies constituted under laws enacted by the State legislatures regulate diverse aspects of construction activity as an incident of the development of land. Secondly, in diverse provisions, the Real Estate (Regulation and Development) Act has imposed the duty of complying with its regulatory provisions upon the appropriate government. This expression encompasses, in respect of matters relating to the State, the State government.
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In the case of Union Territories, the definition of the expression 'appropriate government' in Section 2(g) is bifurcated into three categories: a Union Territory without a legislature; the Union Territory of Puducherry; and the Union Territory of Delhi., Parliament, while enacting the Real Estate (Regulation and Development) Act, 2016 (RERA), imposed the obligation to secure compliance with its provisions in diverse aspects upon the State governments. Each of these two facets needs to be developed and analyzed for the purpose of the discussion., The statutory dictionary adopted in the provisions of Section 2 contains various definitions which expressly recognize the existence of State enactments regulating construction activities. The definition of the expression 'commencement certificate' in Section 2(m) is as follows: 'commencement certificate' means the commencement certificate or the building permit or the construction permit, by whatever name called, issued by the competent authority to allow or permit the promoter to begin development works on an immovable property, as per the sanctioned plan. This definition incorporates the notion of a competent authority (defined in Section 2(p)) and of a sanctioned plan (defined in Section 2(zq))., The expression 'competent authority' is defined in Section 2(p) as: 'competent authority' means the local authority or any authority created or established under any law for the time being in force by the appropriate Government which exercises authority over land under its jurisdiction, and has powers to give permission for development of such immovable property., The expression 'sanctioned plan' is defined in Section 2(zq) as: 'sanctioned plan' means the site plan, building plan, service plan, parking and circulation plan, landscape plan, layout plan, zoning plan and such other plan and includes structural designs, if applicable, permissions such as environment permission and such other permissions, which are approved by the competent authority prior to the start of a real estate project., The expression 'planning area' is defined in Section 2(zh) as: 'planning area' means a planning area or a development area or a local planning area or a regional development plan area, by whatever name called, or any other area specified as such by the appropriate Government or any competent authority and includes any area designated by the appropriate Government or the competent authority to be a planning area for future planned development, under the law relating to Town and Country Planning for the time being in force and as revised from time to time., The definition of the expression 'completion certificate' in Section 2(q) recognizes that the real estate project has been developed according to the plan, layout plan and specifications duly approved by the competent authority as provided for in local laws. Section 2(q) reads: 'completion certificate' means the completion certificate, or such other certificate, by whatever name called, issued by the competent authority certifying that the real estate project has been developed according to the sanctioned plan, layout plan and specifications, as approved by the competent authority under the local laws., The expression 'local authority' is defined in Section 2(zc) as: 'local authority' means the Municipal Corporation or Municipality or Panchayats or any other Local Body constituted under any law for the time being in force for providing municipal services or basic services, as the case may be, in respect of areas under its jurisdiction., The definition of 'occupancy certificate' in Section 2(zf) is: 'occupancy certificate' means the occupancy certificate, or such other certificate by whatever name called, issued by the competent authority permitting occupation of any building, as provided under local laws, which has provision for civic infrastructure such as water, sanitation and electricity., Clause (zr) of Section 2 stipulates that words and expressions used herein but not defined in this Act and defined in any law for the time being in force or in the municipal laws or such other relevant laws of the appropriate Government shall have the same meanings respectively assigned to them in those laws., The above provisions of RERA indicate that Parliament was conscious that diverse activities relating to construction projects are governed by municipal and local legislation. Various regimes of town and country planning are governed by State enactments, and municipal and local laws govern aspects such as application for development, issuance of commencement certificates, completion certificates and occupancy permission. RERA has not attempted to supplant these State enactments; it follows the distribution of legislative powers. Entry 5 of List II to the Seventh Schedule deals with local government, including the constitution and powers of municipal corporations and other local authorities for the purpose of local self‑government or village administration. Control over development activities under municipal and local laws is governed by State legislation., The real estate regulatory authority, constituted under Section 20 by the appropriate Government, is responsible for regulation and enforcement of RERA. The appropriate Government, as defined in Section 2(g), means the State Government in respect of matters relating to the State. The appointment of the authority is envisaged under Section 21, the power of removal under Section 26, and the appointment of officers and employees under Section 28. Section 32 requires the authority to make recommendations to the appropriate Government or the competent authority to facilitate the growth and promotion of a healthy, transparent, efficient and competitive real estate sector. The authority’s functions are set out in Sections 3 to 19, covering registration of projects, obligations of promoters, issuance of certificates, return of amounts, rights of allottees, and complaint mechanisms. Sections 38 and 40 give the authority wide‑ranging powers to impose penalties or interest for contraventions., Besides the real estate regulatory authority, RERA provides for the establishment of a Real Estate Appellate Tribunal by the appropriate Government in Chapter VII. Consistent with Sections 43 to 57, the authority has a vital role in the imposition of penalties under Chapter VIII. Section 71(29) contemplates the appointment of adjudicating officers, who shall be judicial officers, preferably District Judges, appointed in consultation with the appropriate Government to adjudicate compensation under Sections 12, 14, 18 and 19. The adjudicating officer may summon persons, enforce attendance, and require production of documents. Applications for adjudication shall be dealt with expeditiously and disposed of within sixty days, with reasons recorded if the period is exceeded., Chapter IX provides for finance, accounts, audits and reports. Under Section 73, the Central Government is empowered to make grants and loans to the authority upon due appropriation by Parliament; Section 74 entrusts a similar power to the State Government. Section 75 contemplates the constitution of a Real Estate Regulatory Fund by the appropriate Government. Section 77 requires preparation of a budget, maintenance of accounts and preparation of an annual statement of accounts in a form prescribed by the appropriate Government in consultation with the Comptroller and Auditor General of India. The annual report of the authority, under Section 78(2), is to be placed before each House of Parliament or, as the case may be, before the State legislature or Union Territory legislature. Sections 82, 83 and 84 entrust the appropriate Government with statutory powers to supersede the authority, issue directions to the authority and make rules respectively., Sections 88 and 89 of RERA address the relationship between RERA and other laws. Section 88 stipulates that the provisions of RERA shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force. Section 89 provides that RERA shall have overriding effect notwithstanding anything inconsistent contained in any other law for the time being in force. The interpretation of these provisions is crucial in the present controversy involving the West Bengal Housing Infrastructure Development (Regulation) Act (WB‑HIRA). The State of West Bengal initially asserted legislative authority over the subject, arguing that WB‑HIRA falls within List II of the Seventh Schedule. However, in subsequent submissions before the Supreme Court of India, the State accepted that WB‑HIRA substantially overlaps with RERA and was enacted under Article 246(2) in the Concurrent List, referencing Entries 6 and 7 of List III. The State’s position is four‑fold: (i) there is no constitutional prohibition on a State enacting legislation in the Concurrent List that is virtually identical to central legislation; (ii) Section 88 indicates that RERA can coexist with analogous State legislation; (iii) inconsistencies between WB‑HIRA and RERA are minor, and where they exist the State law must yield to the central law; and (iv) Section 92 demonstrates that Parliament intended to repeal only specific State legislation, such as the Maharashtra Act No. II of 2014., The Court must consider two lines of precedent. The first analyses provisions analogous to Section 88 of RERA to determine the ambit of a provision stating that the statute is in addition to and not in derogation of any other law for the time being in force. The second explores the meaning of the expression 'any other law for the time being in force' and whether it freezes applicability to laws existing at the time of RERA’s enactment or also to subsequently enacted laws., In MD Frozen Foods Exports Private Limited v. Hero Fincorp Limited, a two‑judge Bench examined the interaction between the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) and other statutes. Section 35 of the SARFAESI Act provides that its provisions shall have effect notwithstanding anything inconsistent contained in any other law for the time being in force. Section 37 states that the provisions of the Act or the rules made thereunder shall be in addition to, and not in derogation of, the Companies Act, 1956, the Securities Contracts (Regulation) Act, 1956, the Securities and Exchange Board of India Act, 1992, the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, or any other law for the time being in force. Justice Sanjay Kishan Kaul noted that, by virtue of Section 37, the SARFAESI Act is in addition to and not in derogation of the Recovery of Debts Due to Banks and Financial Institutions Act., In KSL and Industries Limited v. Arihant Threads Limited, a three‑judge Bench considered Section 34 of the Recovery of Debts Due to Banks and Financial Institutions Act, which contains both an overriding clause and a provision that its provisions shall be in addition to, and not in derogation of, certain other statutes. Justice S.A. Bobde observed that when an Act provides that its provisions shall be in addition to and not in derogation of another law, the legislature intends coexistence rather than abrogation. The term 'derogation' was explained as partial repeal or abrogation of a law by a later Act., In Pioneer Urban Land and Infrastructure Limited v. Union of India, the Court examined the interplay between Sections 88 and 89 of RERA and Section 238 of the Insolvency and Bankruptcy Code (IBC). Justice R.F. Nariman noted that the IBC contains a non‑obstante clause giving it overriding effect, whereas RERA’s non‑obstante clause came into force on 1 May 2015 and the IBC’s on 1 December 2016, with amendments effective from 6 June 2018. The Court held that RERA, being a special enactment, does not automatically have precedence over the IBC, which is a general enactment dealing with insolvency., The analysis of Sections 88 and 89, together with the cited precedents, will guide the determination of whether the provisions of RERA override, coexist with, or are subordinate to the provisions of WB‑HIRA and other State legislation.
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In this backdrop, the Supreme Court of India observed: From the introduction of the Explanation to Section 5(8)(f) of the Insolvency and Bankruptcy Code, it is clear that Parliament was aware of the Real Estate (Regulation and Development) Act, 2016 (RERA), and applied some of its definition provisions so that they could apply when the Code is to be interpreted. The fact that RERA is in addition to and not in derogation of the provisions of any other law for the time being in force also makes it clear that the remedies under RERA to allottees were intended to be additional and not exclusive remedies. It is important to remember that the authorities under RERA were to be set up within one year from 1‑5‑2016, so remedies before those authorities would come into effect only on and from 1‑5‑2017, making it clear that the provisions of the Code, which came into force on 1‑12‑2016, would apply in addition to RERA. The Supreme Court noted the decision in KSL & Industries Ltd. v. Arihant Threads Ltd. (2015) 1 SCC 166, in which it was held that notwithstanding the non‑obstante clause contained in the Real Estate (Regulation and Development) Act, which was later in time than the non‑obstante clause in the Sick Industrial Companies (Special Provisions) Act, the principle that the later Act would prevail over the earlier was departed from only because of the presence of a provision, like Section 88 of RERA, which made it clear that the Act was meant to be in addition and not in derogation of other statutes. In view of Section 34(2) of the Recovery Act, the Supreme Court held that despite the fact that the non‑obstante clause contained in the Recovery Act is later in time than the non‑obstante clause contained in the Sick Industrial Companies Act, in the event of a conflict the Recovery Act, i.e., the later Act, must give way to the Sick Industrial Companies Act, i.e., the earlier Act. Several judgments were referred to in which ordinarily a later Act containing a non‑obstante clause must be held to have primacy over an earlier Act containing a non‑obstante clause, as Parliament must be deemed to be aware that the later Act is intended to override all earlier statutes including those which contained non‑obstante clauses. This statement of law was departed from in KSL & Industries only because of the presence of Section 88 of RERA, which makes it clear that the Act is meant to be in addition to and not in derogation of other statutes. In the present case, both tests are satisfied, namely, that the Code as amended is later in point of time than RERA and must be given precedence over RERA, given Section 88 of RERA. Therefore, the Supreme Court held that RERA and the Insolvency and Bankruptcy Code must be held to co‑exist and, in the event of a clash, RERA must give way to the Insolvency and Bankruptcy Code., H.3.2 Meaning of law for the time being in force 64 The second line of precedent has been relied upon by Mr. Rakesh Dwivedi on behalf of the State of West Bengal as an aid to the construction of the expression \law for the time being in force\. In the decision of the Constitution Bench in Sasanka Sekhar Maity v. Union of India, Justice A.P. Sen construed the provisions of the second proviso to Article 31‑A(1) of the Constitution and the expression \any law for the time being in force\. The argument was that this expression must mean the West Bengal Estate Acquisition Act, 1953 only. Rejecting the submission, the Constitution Bench held: Such a construction would create a serious impediment to any kind of agrarian reform. The ceiling on agricultural holdings, once fixed, cannot be static, unalterable for all times. The expression \any law for the time being in force\ obviously refers to the law imposing a ceiling. Here it is the West Bengal Land Reforms (Amendment) Act, 1971 (President's Act 3 of 1971) and the West Bengal Land Reforms (Amendment) Act, 1972 (W.B. Act 12 of 1972) which introduced Chapter II‑B imposing a new ceiling on agricultural holdings of raiyats. That is the law for the time being in force, and no land is being acquired by the State under Section 14‑L within the ceiling limits prescribed therein. It will be noticed that the second proviso to Article 31‑A(1) refers to the ceiling limit applicable to him, which evidently refers to the law in question and not the earlier law, i.e., Section 6(1) of the West Bengal Estates Acquisition Act, 1953. Both Section 4(3) and Section 6(2) of the West Bengal Land Reforms Act, 1955 were deleted by the West Bengal Land Reforms (Amendment) Act, 1971 and thereafter by the West Bengal Land Reforms (Amendment) Act, 1972 with retrospective effect from 12 February 1971., In Thyssen Stahlunion GmbH v. Steel Authority of India, a two‑judge Bench of the Supreme Court of India considered the expression \for the time being in force\ in the context of an arbitration agreement and agreed with the view of the High Courts of Bombay and Madhya Pradesh, which had held that the expression not only refers to the law in force at the time when the arbitration was entered into but also to any law that may be in force in the conduct of the arbitration proceeding. Speaking for the Bench, Justice D.P. Wadhwa held: Parties can agree to the applicability of the new Act even before the new Act comes into force and when the old Act is still holding the field. There is nothing in the language of Section 85(2)(a) which bars the parties from so agreeing. However, there is a bar that they cannot agree to the applicability of the old Act after the new Act has come into force when arbitral proceedings under the old Act have not commenced though the arbitral agreement was under the old Act. The arbitration clause in the contract in the case of Rani Constructions (Civil Appeal No. 61 of 1999) uses the expression \for the time being in force\ meaning thereby that the provision of that Act would apply to the arbitration proceedings which will be in force at the relevant time when arbitration proceedings are held. The Supreme Court has been referred to two decisions, one of the Bombay High Court and the other of the Madhya Pradesh High Court, on the interpretation of the expression and agrees that the expression not only refers to the law in force at the time the arbitration agreement was entered into but also to any law that may be in force for the conduct of arbitration proceedings, which would also include the enforcement of the award. The expression \unless otherwise agreed\ as appearing in Section 85(2)(a) of the new Act would clearly apply in the case of Rani Constructions. Parties were clear that it would be the old Act or any statutory modification or re‑enactment of that Act which would govern the arbitration. The Supreme Court accepts the submission that parties could anticipate that the new enactment may come into operation at the time the disputes arise. It is difficult to comprehend that an arbitration agreement could be said to be in restraint of legal proceedings. There is no substance in the respondent's submission that parties could not have agreed to the application of the new Act until they knew the provisions thereof, which would mean that any such agreement could be entered into only after the new Act had come into force. When the agreement uses the expressions \unless otherwise agreed\ and \law in force\ it does give an option to the parties to agree that the new Act would apply to the pending arbitration proceedings. That agreement can be entered into even before the new Act comes into force and it cannot be said that the agreement has to be entered into only after the coming into force of the new Act., The decision of a two‑judge Bench in Municipal Corporation of Delhi v. Prem Chand Gupta considered Regulation 4(1) of the Services Regulations of 1959, which commenced with the expression \Unless otherwise provided in the Act or these regulations, the rules for the time being in force and applicable to government servants in the service of the Central Government shall, as far as may be, regulate the conditions of service of municipal officers and other municipal employees\. The Supreme Court rejected the submission that the rules for the time being in force would be those which were in existence when the Services Regulations of 1959 were promulgated and not any later rules. Justice S.B. Majmudar held that whenever the question of the regulation of conditions of service of municipal officers comes up for consideration, the relevant rules in force at that time have to be looked into. As such, the scope and ambit could not be frozen as of 1959. Hence, the phraseology \rules for the time being in force\ necessarily means rules in force from time to time and not the rules in force only at a fixed point in 1959., In Yakub Abdul Razak Memon v. State of Maharashtra, while construing the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 and its interplay with the Terrorist and Disruptive Activities (Prevention) Act, 1987, Justice P. Sathasivam (as the learned Chief Justice was then) held: Section 1(4) of the Juvenile Justice Act was added by amendment with effect from 22‑8‑2006. In fact, this provision gives the overriding effect to this Act over other statutes. However, it reads that the Act would override anything contained in any other law for the time being in force. The question arises as to whether the statutory provisions of the Juvenile Justice Act would have an overriding effect over the provisions of TADA, which had ceased to be in force on 22‑8‑2006. Thus, the question arises as to the meaning of \law for the time being in force\. The Supreme Court has interpreted this phrase to include the law in existence on the date of commencement of the Act having overriding effect and the law which may be enacted in future during the life of the Act having overriding effect (see Thyssen Stahlunion GmbH v. SAIL [(1999) 9 SCC 334 : AIR 1999 SC 3923] and Municipal Corporation of Delhi v. Prem Chand Gupta [(2000) 10 SCC 115 : 2000 SCC (L&S) 404])., In Union Territory of Chandigarh v. Rajesh Kumar Basandhi, Justice Brijesh Kumar considered the expression \for the time being in force\ in the law lexicon and held that it must be interpreted keeping in mind the context in which it is used: A perusal of the meaning of the expression by different authors, based on decided cases, makes it clear that it cannot be said that it must in every case indicate a single period of time. It may be for an indefinite period of time depending upon the context in which the phrase is used. Generally it denotes an indefinite period of time, meaning that the position as existing at the time of application of the rules may be amended or unamended. Therefore, to conclude whether it is for one time or for an indefinite period, the context, purpose and intention of the use of the phrase must be examined., Similarly, in Department of Customs v. Sharad Gandhi, a two‑judge Bench of the Supreme Court of India considered a case where the respondent had been discharged of offences under Sections 132 and 175 of the Customs Act, 1962. The Additional Chief Metropolitan Magistrate allowed an application for discharge holding that there was a complete bar with regard to prosecution under the Customs Act, 1962, and that the Collector of Customs only had the power to confiscate the goods and impose a penalty for a breach of Section 3 of the Antiquities and Art Treasurers Act, 1972. The Bench had to interpret the meaning of Section 30 of the Antiquities and Art Treasurers Act, 1972, which reads: \Application of other laws not barred. The provisions of this Act shall be in addition to, and not in derogation of, the provisions of the Ancient Monuments Preservation Act, 1904 or the Ancient Monuments and Archaeological Sites and Remains Act, 1958, or any other law for the time being in force.\ Justice K.M. Joseph, speaking for the Bench, observed that although the words \any other law for the time being in force\ have been used, the context of the provision is not to be overlooked. The legislative intention was to declare that the Antiquities Act should not result in the provisions contained in allied or cognate laws being overridden. The Act is to supplement existing laws, and the expression must be understood ejusdem generis, covering any other law that deals with antiquities, whether made by the State Legislatures or otherwise., These decisions indicate that the expression \any other law for the time being in force\ does not necessarily mean only the laws that were in existence when the statutory provision was enacted. To the contrary, it is widely considered to mean not just the laws existing at enactment but also such laws which may come into existence at a later stage. On the other hand, another line of judicial precedent suggests that the meaning ascribed to the expression must bear colour from the context in which it appears and not be devoid of it. For instance, in National Insurance Company Limited v. Sinitha, in the context of a policy of insurance, the expression \for the time being in force\ was held to mean provisions then existing. The decision related to Sections 144 and 163A of the Motor Vehicles Act, 1988, in which Section 163A was subsequently inserted. A two‑judge Bench of the Supreme Court held that Section 144 would not override Section 163A because the expression \laws for the time being in force\ would encompass only existing provisions of the Motor Vehicles Act, 1988, and not those inserted later. Justice J.S. Khehar observed that Section 144 provides overriding effect over provisions for the time being in force, i.e., the provisions then existing, but Section 163A was not on the statute book at the time Section 144 was incorporated. Conversely, when Section 163A was incorporated, Sections 140 and 144 were already subsisting, so the non‑obstante clause in Section 163A would have overriding effect over the then existing provisions in Chapter X of the Act. This again indicates that the statutory context and scheme determine the ambit of the expression \any other law for the time being in force\., In the Real Estate (Regulation and Development) Act, the expression \law for the time being in force\ is used in Section 89 as well as in Section 2(zr) and Section 18(2). Section 2(zr) stipulates that words and expressions used in the Act, but not defined in it, and defined in any law for the time being in force or in municipal laws or other relevant laws of the appropriate government, shall have the meaning assigned to them in those laws. Evidently, a law for the time being in force in Section 2(zr) is not frozen at the date of enactment of RERA. Likewise, Section 18(2) imposes an obligation on the promoter to compensate allottees for loss caused due to a defective title to the land and provides that the claim for compensation shall not be barred by limitation provided under any law for the time being in force. However, in Section 89, \law for the time being in force\ is used in a general sense of all the provisions of the Act vis‑à‑vis provisions of other Acts., H.3.3 Knitting it together 73 From our analysis of the provisions of RERA on the one hand and of West Bengal Housing Infrastructure and Real Estate Act (WB‑HIRA) on the other, two fundamental features emerge. First, a significant and overwhelmingly large part of WB‑HIRA overlaps with the provisions of RERA. These provisions of RERA have been lifted bodily, word for word, and enacted into the State enactment. Second, in doing so, WB‑HIRA does not complement RERA by enacting provisions which may be regarded as in addition to or fortifying the rights, obligations and remedies created by the Central enactment. The subject of the State enactment is identical, the content is identical. In essence and substance, WB‑HIRA has enacted a parallel mechanism and parallel regime as that which has been entailed under RERA. The State legislature has, in other words, enacted legislation on the same subject matter as the Central enactment. Both sets of statutes are referable to the same entries in the Concurrent List (Entries 6 and 7 of List III) and the initial effort of the State of West Bengal to sustain its legislation as a law regulating industry within the meaning of Entry 24 of List II has been expressly given up before this Court., In assessing whether this overlap between the statutory provisions of WB‑HIRA and RERA makes the former repugnant to the latter within the meaning of clause (1) of Article 254 of the Constitution, it becomes necessary to apply the several tests which are a part of our constitutional jurisprudence. Repugnancy can be looked at from three distinct perspectives. The first is where the provision of a State enactment is directly in conflict with a law enacted by Parliament, so that compliance with one is impossible along with obedience to the other. The second test is where Parliament, through the legislative provisions contained in the statute, has enacted an exhaustive code, intending to occupy the whole field covered by the subject of its legislation. In terms of this test, a State enactment on the subject has to give way to the law enacted by Parliament because the regulation of the subject matter by Parliament is so complete as a code that it leaves no space for legislation by the State. The third test postulates that the subject matter of the legislation by the State is identical to the legislation enacted by Parliament, whether prior or later in point of time. Repugnancy in the constitutional sense is implicated not because there is a conflict between the provisions enacted by the State legislature with those of the law enacted by Parliament but because once Parliament has enacted a law, it is not open to the State legislature to legislate on the same subject matter and, as in this case, by enacting provisions which are bodily lifted from and verbatim the same as the statutory provisions enacted by Parliament. The overlap between the provisions of WB‑HIRA and RERA is so significant as to leave no doubt that the test of repugnancy based on an identity of subject matter is clearly established. As the decision in Innovative Industries emphasizes, laws under this head are repugnant even if the rule of conduct prescribed by both the laws is identical. This principle constitutes the foundation of the rule of implied repeal. The present case is not one where WB‑HIRA deals with matters distinct from the subject matter of the Parliamentary legislation; rather, WB‑HIRA purports to occupy the same subject as that provided in the Parliamentary legislation. The State law fits, virtually on all fours, with the footprints of the law enacted by Parliament. This is constitutionally impermissible. What the legislature of the State of West Bengal has attempted to achieve is to set up its parallel legislation involving a parallel regime., The submission articulated before the Supreme Court on behalf of the State of West Bengal is that Section 88 of RERA itself allows for the existence of State statutes by enacting Sections 88 and 89, which stipulate that its provisions shall be in addition to and not in derogation of the provisions of any other law for the time being in force and override only inconsistent provisions. For the purpose of the present discussion, we may accept the hypothesis of the State of West Bengal that the expression \any other law for the time being in force\ does not, in the context of Section 88, imply applicability only to laws enacted before RERA. Conceivably, as the judgments of this Court construing similar expressions indicate, the trend has been to broadly configure the meaning of the expression by extending it to laws which were in existence and those which may be enacted thereafter. In other contexts, such an interpretation has not been accepted, but for the purpose of the discussion we will proceed on the hypothesis put forth by the State of West Bengal that \law for the time being in force\ within the meaning of Section 88 would also include subsequent legislation. The submission is that since Section 88 allows for the existence of other laws by adopting the \in addition to and not in derogation of\ formula, Parliament did not intend to exclude State legislation even though it is identical to that enacted by Parliament. This submission is also buttressed by reference to Section 92 of RERA, under which only the Maharashtra Act was repealed. Now, in assessing the correctness of the submission, it is necessary to construe Section 88 in its proper perspective. Unless this is done, the Supreme Court would be doing violence to the intent of Parliament and to the constitutional principles embodied in Article 254. Parliament envisaged in Section 88 of RERA that its provisions would be in addition to and not in derogation of other laws for the time being in force. True enough, this provision indicates that Parliament has not intended to occupy the whole field so as to preclude altogether the exercise of legislative authority whether under other Central or State enactments. For instance, Section 71 of RERA specifically contemplates (in the proviso to sub‑Section (1)) that a complaint in respect of matters covered by Sections 12, 14, 18 and 19 is pending in the adjudicating fora constituted by the Consumer Protection Act, 1986. The person who has moved the consumer forum may withdraw the complaint and file an application before the adjudicating officer constituted under RERA. The effect of Section 88 is to ensure that remedies available under consumer legislation, including the Consumer Protection Act, 2019, are not ousted as a consequence of the operation of RERA. Of course, it is also material to note that both sets of statutes, namely the Consumer Protection Acts and RERA, have been enacted by Parliament and therefore must be harmoniously construed. Section 88 of RERA does not exclude recourse to other remedies created by cognate legislation. Where the cognate legislation has been enacted by a State legislature, Section 88 of RERA indicates that Parliament did not wish to oust the legislative power of the State legislature to enact legislation on cognate or allied subjects. In other words, spaces left in RERA can be legislated upon by the State legislature, so long as it is allied to, incidental or cognate to the exercise of Parliament's legislative authority. What the State legislature in the present case has done is not to enact cognate or allied legislation but legislation which, insofar as the statutory overlaps are concerned, is identical to and bodily lifted from the Parliamentary law. This plainly implicates the test of repugnancy by setting up a parallel regime under the State law. The State legislature has encroached upon the legislative authority of Parliament, which has supremacy within the ambit of the subjects falling within the Concurrent List of the Seventh Schedule. The exercise conducted by the State legislature is plainly unconstitutional., The statutory overlaps between WB‑HIRA and RERA cannot be overlooked, as noted above. But, apart from that, there is an additional reason why the test of repugnancy under clause (1) of Article 254 is attracted. Several provisions of WB‑HIRA are directly in conflict and dissonance with RERA.
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Constitutional Writ Jurisdiction Appellate Side Present: Honourable Justice Amrita Sinha, Srimanta Malik & Ors., The State of West Bengal for the writ petitioner Kallol Basu, Mr Suman Banerjee for the respondents numbered 6 to 9 Samrat Choudhury, Abhijeet Bhattacharyya for the State, Lalit Mohan Mahata, Ziaul Haque. Hearing concluded on judgment on 10 September 2023., The matter relates to the election of Pradhan in a reserved category seat. Seventeen writ petitioners and five private respondents are all elected members of a Gram Panchayat. There are a total of twenty‑two seats in the Gram Panchayat and the petitioners are in majority. A meeting was fixed for the election of Pradhan and Upa Pradhan. The post of Pradhan is reserved for a Scheduled Tribe candidate. None amongst the petitioners belong to the reserved category. Out of all the elected members, respondent number 6, who happens to be a member of the minority party, is from the reserved category. Respondent number 6 was absent on the day of the election. As no member from the reserved category was available on the day of election of Pradhan, the Upa Pradhan of the Panchayat was given charge of the Pradhan., The petitioners are not inclined to accept the private respondent, a member of the minority party, as the Pradhan of the Gram Panchayat. According to the petitioners, they do not have confidence and cannot repose faith upon the private respondent to act as Pradhan. The petitioners contend that until the Pradhan enjoys the confidence of the majority of the elected members, the functioning of the Gram Panchayat will suffer. There is no point in appointing a Pradhan who does not enjoy the confidence of the majority members. The petitioners intend to stall the election of the Pradhan until a candidate of their choice is available. The petitioners rely upon the provision of Section 20 of the West Bengal Panchayat Elections Act, 2003 relating to co‑option of persons in the respective category. In support of the aforesaid submission the petitioners rely upon the decision passed by the Honourable Supreme Court of India in the matter of Bhanumati Ors. v. State of Uttar Pradesh through its Principal Secretary & Ors., reported in paragraphs 49 and 66; Usha Bharti v. State of Ors., reported in paragraphs 33, 34, 36, 37; the judgment delivered by this Court in the matter of Prabhati Sarkar & Ors. v. State of West Bengal & Ors.; and Juljelal Miah & Ors. v. State of West Bengal & Ors., reported in 2019 SCC Online Cal 5289 paragraphs 20 to 23., Learned advocate representing the private respondents submits that the reserved‑category member is highly interested to take charge of the post of Pradhan but she was deliberately and forcefully restrained from attending the meeting for election of Pradhan. The member was compelled to approach the police for help and an FIR has been lodged by her before the police station. It has been submitted that the private respondent is the only candidate from the reserved category who can be appointed as Pradhan. To frustrate the candidature of the private respondent, the petitioners are intentionally spreading false and incorrect rumours about her incompetence. The respondent is yet to take charge of the Pradhan and, prior to getting any opportunity to prove her competence, the petitioners are standing in her way of being elected as Pradhan., Learned advocate representing the State respondents submits that the post of Pradhan in the present Gram Panchayat is reserved for a Scheduled Tribe member and any elected member who belongs to the said reserved category will be entitled to be appointed to the post irrespective of whether the member belongs to the party with majority members. The private respondent, being the sole elected member from the reserved category, is eligible and liable to be appointed as Pradhan. The respondents pray for dismissal of the writ petition., I have heard and considered the rival contentions of all the parties. The admitted fact is that the seat of Pradhan in the subject Gram Panchayat is reserved for a Scheduled Tribe member, the sole reserved‑category member amongst the elected members of the Gram Panchayat. The petitioners, belonging to the majority group, are not inclined to accept a member from the minority group to act as Pradhan. The petitioners fall back on Section 20 of the West Bengal Panchayat Elections Act, 2003, which provides that in case of non‑availability of persons of the reserved category for filling up the office of Pradhan, a person of that reserved category may be co‑opted to fill up the office after swearing in an oath of affirmation before the authority as may be specified, provided that such person so co‑opted shall be elected within six months from the date of his co‑option against a suitable casual vacancy of that body., The petitioners argue that, as they do not have confidence in the sole reserved‑category member, she ought not to be appointed as Pradhan. They contend that the members of the Gram Panchayat ought not to wait for a formal no‑confidence motion for removal of Pradhan; for removal of Pradhan, the petitioners would have to wait for a minimum period of one year from the date of election of Pradhan. The petitioners are not interested to accept the available reserved‑category candidate as their Pradhan even for a single day, far less one year. As the Pradhan neither enjoys the confidence nor the support of the majority members of the Panchayat, she ought not to be appointed as such., I am not inclined to accept the aforesaid contention of the petitioners. The election of the Pradhan is yet to be held and the candidate is yet to prove her credibility. Prior to giving her an opportunity to serve the people, she should not be labelled incompetent. It would be highly improper and stigmatic if a member, even after winning the election, is not permitted to hold the office of Pradhan by painting her as undeserving. An opportunity ought to be given to the candidate to prove her credibility., The provision to co‑opt clearly mentions that in case of non‑availability of persons of the reserved category, co‑option is permissible. This is not a case of non‑availability of a reserved‑category person. In the subject Gram Panchayat the reserved‑category member is already available and she ought to be permitted to hold the post of Pradhan. If after a performance of a year it is found that she is not competent to hold the post or she fails to win the confidence of the members, then the provision for removal of Pradhan may be resorted to. Prior to that it would be highly improper and unjust not to permit her to be elected as Pradhan., The fact that the reserved‑category candidate failed to turn up on the day of the election does not appear to be completely true. On the contrary, it appears that she was deliberately prevented and restrained from attending the meeting scheduled for election of Pradhan. She was even compelled to approach the police for help. If the contention of the petitioners is accepted, it will become practically impossible to follow the reservation policy prescribed under the Constitution. If the elected reserved‑category candidate is not allowed the benefit of reservation, then the reservation policy will be frustrated. Reserved‑category members elected from the minority party will never get a chance to hold key posts and seats. By‑elections have to be held in many such occasions. To prevent mid‑term elections, the elected member ought to be permitted to hold office; co‑option ought not to be exercised if the reserved‑category candidate is available. If none is available from the reserved category, then co‑option may be resorted to., After the elections are over, all the members of the Gram Panchayat ought to act in tandem with each other and not oppose the action of the member belonging to a rival political party. The sole intention of the members of the Gram Panchayat should be to act as a team and serve the electors of the Panchayat. There ought not be any infighting among the members and the Panchayat should behave as a single entity., Time is not yet ripe to come to an opinion as to whether the sole reserved‑category member enjoys the confidence of the other members of the Panchayat. Until the member enjoys the confidence of the other members, she is entitled to hold the office of Pradhan. Only because the reserved‑category member is from the political party having minority members, the majority members should not make things difficult for the said member which may ultimately lead to her removal., The other decisions relied upon by the petitioners do not appear to be applicable in the facts and circumstances of the instant case. In view of the above, the Supreme Court of India is not inclined to interfere in the instant writ petition. The writ petition fails and is hereby dismissed. No costs. An urgent certified photocopy of this judgment, if applied for, be supplied to the parties or their advocates on record expeditiously on compliance of usual legal formalities.
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Reportable Miscellaneous Application No 1925 of 2020, Civil Appeal No 10930 of 2018, Citizens for Green Doon & Ors. (Appellants) versus Union of India & Ors. (Respondents). Miscellaneous Application No 2180 of 2020, Civil Appeal No 10930 of 2018. Justice Dhananjaya Y Chandrachud. This judgment has been divided into sections to facilitate analysis. The sections are: Principles of Sustainable Development and Environmental Rule of Law – The Project., The present case has a history fraught with litigation, with multiple proceedings before the National Green Tribunal and the Supreme Court of India. Before going into the history of the litigation, it is important to provide context for the public project in question in the case., The Chardham Mahamarg Vikas Pariyojna is a programme of the Ministry of Road Transport and Highways, announced on 23 December 2016. The project aims to widen approximately 900 kilometres of national highways to ensure safer, smoother and faster traffic movement. As the name suggests, these highways connect the holy shrines labelled as the Chota Char Dham in the State of Uttarakhand: Yamunotri (National Highway 94/134 up to Janki Chatti), Gangotri (National Highway 108), Kedarnath (National Highway 109 up to Sonprayag), Badrinath (National Highway 58) and the Tanakpur‑Pithoragarh stretch of the Kailash Mansarovar Yatra route (National Highway 125)., These shrines represent different traditions of the Hindu religion: Yamunotri and Gangotri are Shakti (goddess) shrines, Kedarnath is a Shaiva temple, and Badrinath is a Vaishnava site. They are located in an area historically called Kedarkhand, largely present‑day Garhwal, mentioned in the Skanda Purana. The locations were earlier considered to be occupied by glaciers (named Champasar, Gangotri, Chorabari and Satopanth) in their entirety, which have been melting. Even today they are situated in paraglacial zones, considered ecologically sensitive., Until the 1950s access to these shrines was limited to foot travel, requiring worshippers to undertake long and arduous journeys. Since the 1960s road connectivity has improved; vehicles now ply up to the Badrinath and Gangotri temples, while Yamunotri and Kedarnath are 6 to 14 kilometres away from the nearest motorable road. The improved connectivity has resulted in a greater influx of worshippers. The four shrines typically open for worship in late April or early May and close in late October or early November., The project was conceptualised to improve accessibility to these shrines by widening the existing roads, making travel safer, smoother and faster. It seeks to widen the existing highways into a double‑lane configuration with paved shoulders, incorporating 16 bypasses, realignments and tunnels, 15 flyovers, 101 small bridges and 3,516 culverts. The Ministry of Road Transport and Highways has divided the project into 53 individual stretches, each less than 100 kilometres, traversing the following national highways: National Highway 58 from Rishikesh to Rudraprayag (141 km); National Highway 58 from Rudraprayag to Mana Village (Badrinath) (140 km); National Highway 94 from Rishikesh to Dharasu (120 km); National Highway 94 from Dharasu to Yamunotri (75 km); National Highway 108 from Dharasu to Gangotri (110 km); National Highway 109 from Rudraprayag to Gaurikund (Kedarnath) (77 km); and National Highway 125 from Tanakpur to Pithoragarh (161 km)., An original application was filed before the Principal Bench of the National Green Tribunal on 27 February 2018 in public interest, challenging the construction under the project on the ground that the development activity has a negative impact on the Himalayan ecosystem. The applicants argued that the project would lead to deforestation, hill excavation and dumping of muck, resulting in landslides and soil erosion in an already sensitive environment. They alleged that an Environmental Impact Assessment under the Environmental Impact Assessment Notification 2006 had not been conducted and that, to avoid the requirement of conducting an EIA, the project had been divided into smaller stretches. The application alleged violations of the Environmental Impact Assessment Notification, Forest (Conservation) Act 1980, Wildlife Protection Act 1972, Environment (Protection) Act 1986 and Articles 14, 21 and 48A of the Constitution., Another original application was filed seeking directions to take precautions for muck disposal and to ensure slope stability. In its order dated 26 September 2018, the National Green Tribunal observed that the bypasses and realignments to be made to the national highways, which cumulatively fall under the project, have been considered as stand‑alone projects. Because the length of each of these projects is less than 100 kilometres, the Tribunal held that they did not require Environmental Impact Assessment approval or Environment Clearance under the EIA Notification. However, given the fragile ecosystem, the Tribunal directed the constitution of an Oversight Committee to monitor environmental safeguards for the execution of the project., The Oversight Committee was to be headed by a former judge of the Uttarakhand High Court and included representatives from the Wadia Institute of Himalayan Geology, National Institute of Disaster Management, Central Soil Conservation Research Institute, G.B. Pant Institute of Himalayan Environment, Forest Research Institute, the Secretary to the Forest Department of Uttarakhand, and the District Magistrates, who were to act as co‑ordinators. Its task, inter alia, was to oversee the implementation of the Environment Management Plan to be prepared by an agency of the Ministry of Environment, Forests and Climate Change., The Tribunal ordered the constitution of the Oversight Committee with the following members: Justice U.C. Dhyani (Chairman), representatives of the aforementioned institutes, the Secretary of Environment and Forest Department, Uttarakhand (Member Secretary), and the concerned District Magistrates as co‑ordinators., An appeal was filed to challenge the National Green Tribunal’s order of 26 September 2018 before the Supreme Court of India. By an order dated 8 August 2019, a two‑judge bench comprising Justice Rohinton F Nariman and Justice Surya Kant modified the Tribunal’s order and instead constituted a High Powered Committee (HPC) chaired by Professor Ravi Chopra, replacing Justice U.C. Dhyani, and added representatives from various other bodies. The HPC was directed to make its decisions on the basis of majority vote., The Supreme Court ordered that the High Powered Committee consist of the persons mentioned in paragraph 54 of the Tribunal’s order, with Professor Ravi Chopra as Chairman. It also added a representative of the Physical Research Laboratory, Department of Space, Government of India, Ahmedabad; a representative of the Wildlife Institute of India, Dehradun; a representative of the Ministry of Environment, Forests and Climate Change, Regional Office, Dehradun; and a representative of the Ministry of Defence dealing with Border Roads, not below the rank of Director. The Ministry of Environment, Forests and Climate Change was directed to constitute the HPC within two weeks, to provide venue and secretarial assistance, and to make decisions by majority voting., The terms of reference of the HPC were revised as follows: (i) The Committee shall consider the cumulative and independent impact of the Chardham Project on the entire Himalayan valleys and direct the project proponent or Ministry of Road Transport and Highways to conduct an Environmental Impact Assessment or rapid EIA. (ii) The HPC, with technical assistance from the implementation agency, shall consider whether revision of the full Chardham Project (about 900 km) should take place to minimise adverse environmental and social impacts. (iii) The HPC shall identify sites where hill‑cutting has started and recommend measures for stabilising those areas, including environmentally safe disposal of muck. (iv) For stretches where work has not started, the HPC shall review the proposed project and recommend measures to minimise adverse impacts, ensure conformity with steep valley terrain and carrying capacity, and avoid triggering new landslides. (v) The HPC shall assess environmental degradation in terms of loss of forest land, trees, green cover, water resources, dumping of muck and impacts on wildlife, and direct mitigation measures, with specific attention to protecting wildlife corridors and endangered flora and fauna. (vi) The HPC shall assess and quantify impacts on social infrastructure and public life due to landslides, air pollution, road blocks, etc., and suggest necessary redressal measures, including disaster management plans prior to the monsoon season. (vii) In the Bhagirathi Eco Sensitive Zone (Gangotri to Uttarkashi), the HPC shall make special provisions in its report to avoid violations and environmental damage. (viii) The HPC shall suggest areas for afforestation, the type of saplings suitable for different Himalayan terrains, and recommend that a separate committee of the Uttarakhand Forest Department monitor survival of planted saplings, with compensatory afforestation at ten times the number of trees cut. (ix) The HPC shall invite experts from different fields and consult local people or hold public meetings to obtain recommendations. (x) The HPC shall consider giving specific directions to the concerned agencies to publish landslide‑prone areas, the total muck generated and its environmentally sound disposal., The HPC was directed to submit its report of recommendations within four months. Following the submission, the Supreme Court observed that the conclusions in the HPC report were unanimous except for the issue relating to road width. A majority of thirteen HPC members favoured applying a Circular dated 5 October 2012 issued by the Ministry of Road Transport and Highways, which stipulates that in all new projects of widening, bypass or realignment the carriageway shall be at least a double‑lane with paved shoulder (DL‑PS), irrespective of traffic. According to that circular, the roadway width would be 12 metres comprising a 7‑metre double‑lane carriageway, a 1.5‑metre paved shoulder on each side and a 1‑metre earthen shoulder on each side. A minority of five members, including the Chairperson, argued that a subsequent Circular dated 23 March 2018 should govern the project. The 2018 circular provides that in hills and mountainous terrains, where traffic volumes range from 3,000 to 8,000 Passenger Car Units per day, the carriageway width should follow the Intermediate Width standard of 5.5 metres with two‑lane structures. The Court accepted the minority view and held that the 2018 circular alone will apply, and that the directions issued on 8 August 2019 must be strictly complied with, including holding quarterly meetings to ensure timely and proper compliance of the recommendations., A letter dated 5 October 2020 was received by the Registry of the Supreme Court from the Chairperson of the HPC, Professor Ravi Chopra. He highlighted the steps taken to notify the Ministry of Road Transport and Highways of the Court’s order and requested the Ministry to submit a plan to bring the project in conformity with the 2018 circular and to suspend all fresh hill‑cutting activities. The letter noted reports of tree‑felling and fresh hill‑cutting on various stretches of National Highway 58, National Highway 94, etc., being carried out under the old road‑width standard (DL‑PS with a 10‑metre tarred road). It also stated that on 27 September 2020 the Ministry had informed the Government of Uttarakhand that the 2018 circular would be applicable only to the thirteen projects where work had not yet begun. Professor Chopra urged that the directions in the Court’s order dated 8 September 2020 be strictly followed. The letter was converted into Miscellaneous Application No 1925 of 2020, the subject‑matter of this judgment., Another letter dated 2 November 2020 from Professor Chopra highlighted non‑compliance with the Court’s order and raised issues regarding the functioning of the HPC. An affidavit filed by the seventh appellant, Swami Samvidanand, sought directions to the Ministry of Road Transport and Highways to stop hill‑cutting, tree‑felling and activities in violation of the 2018 circular; to compensate for hill‑cutting beyond the Intermediate Width standard with tree plantations and footpaths; and to render full secretarial assistance to the HPC., An interlocutory application (IA No 6097 of 2021) was later filed by the sixth appellant, Deepak Chand Ramola, seeking: (i) revocation of the amendment to the 2018 circular made by the circular dated 15 December 2020; (ii) adherence to the Intermediate Width standard for the entire project, both prospectively and retrospectively, as mentioned in the Supreme Court’s order dated 8 September 2020; (iii) special protection for the Bhagirathi Eco Sensitive Zone; (iv) strengthening of the HPC to ensure proper implementation of its functions; and (v), based on the HPC findings, the setting up of a committee to direct an inquiry against persons responsible for wilful violations of the laws in force., A miscellaneous application (MA No 2180 of 2020) was filed by the Union of India, through the Ministry of Defence, seeking modification of the Court’s order dated 8 September 2020. The application seeks permission for widening the national highways from Rishikesh to Mana, Rishikesh to Gangotri and Tanakpur to Pithoragarh to a two‑lane DL‑PS configuration. It avers that a minority of the HPC members, whose view was adopted by the Court, relied on a statement of the then Chief of Army Staff that the requirements of the Indian Army were fulfilled by the existing roads. The Union Government contends that there has been a material change in circumstances, necessitating improvement of roads to enable movement of troops and equipment to Army stations on the Indo‑China border, and that a double‑lane road with a carriageway width of 7 metres (or 7.5 metres) is necessary to meet the Army’s requirement., The relief sought is: modify the order dated 8 September 2020 and direct that the national highways from Rishikesh to Mana, from Rishikesh to Gangotri and from Tanakpur to Pithoragarh may be developed to a two‑lane configuration in the interest of the security of the nation and for the defence of its borders., By an order dated 2 December 2020, a three‑judge bench comprising Justice Rohinton F Nariman, Justice Navin Sinha and Justice K.M. Joseph directed the HPC to consider the issues raised by its Chairperson in his letters and applications, including the application by the Ministry of Defence, and to submit a detailed report. Pursuant to the Court’s order, the eleventh meeting of the HPC was held on 15 and 16 December 2020. The report of the deliberations and submissions of the HPC was received by the Registry from the Secretary, Forest Department, State of Uttarakhand, through a letter dated 31 December 2020., This is where the matter stands presently. We shall consider the submissions urged by the parties., Mr Colin Gonsalves, Senior Counsel appearing on behalf of the appellants, made the following submissions: (i) Issues concerning the functioning of the HPC: The HPC was not allowed to function independently and was given inadequate assistance. The HPC consisted of eight District Magistrates, five State Government officials, two Union Government officials and five representatives from institutions funded by the State and Union Governments. The members linked to the government voted en bloc and followed the official line rather than a scientific basis. The Chairperson faced opposition from the Union of India, which was unwilling to cooperate with the work of the HPC. The Chairperson repeatedly wrote to the Ministry of Road Transport and Highways regarding slope stabilisation, muck disposal and restoration of damaged slopes; to the State, pointing out that the original order of the National Green Tribunal did not stipulate District Magistrates as members of the HPC and that their role was limited to coordination with the local population; to the Union of India to provide inventory of vulnerable slopes and muck; and to the Ministry of Environment, Forests and Climate Change regarding continuing hill‑cutting activities. No concrete action was taken by any of the parties., (ii) Violations committed by the Ministry of Road Transport and Highways: (a) The Ministry has been constructing roads and widening highways in violation of the 2018 circular and the Court’s order dated 8 September 2020 by using the DL‑PS standard; (b) During the HPC deliberations massive hill‑cutting and deforestation activities were undertaken, causing irreversible damage to the Himalayan environment; (c) After the Court’s order, the Ministry continued hill‑cutting, tree‑felling, tarring and unrelated activities; (d) The Ministry has taken the position that the order will apply only to the thirteen projects where work has not yet started, contrary to the Court’s order that the 2018 circular alone applies retrospectively to the entire project; (e) In a recent notification dated 10 September 2020, the Ministry proposed acquisition of land for a toll booth, which is applicable only on roads of DL‑PS standard., (iii) Road‑width: The minority view adopted by the Court, to construct the highways with the Intermediate Width standard, must be upheld because: (a) According to the Manual of Specifications and Standards for Two‑Laning of Highways with Paved Shoulder published by the Indian Roads Congress in June 2015, vehicle width in India does not exceed 2.4 metres, so an intermediate lane of 5.5 metres on straight sections and 7 metres on curves is sufficient for two large vehicles to cross; (b) The fragile Himalayan environment would be severely damaged if the DL‑PS standard is adopted, whereas the Intermediate Width standard would reduce loss of green cover, landslides, land loss and tree loss by 80‑90 per cent; (c) The 2012 circular is inappropriate for mountain roads as it can cause massive instability and environmental damage; (d) The amendments made by the 2020 circular are arbitrary as they reinstate the 2012 circular without engaging with the rationale for an Intermediate Width standard in mountainous areas., (iv) Security concerns: The national security concerns regarding widening of strategic roads are met because: (a) The arguments raised by the Ministry of Defence were considered by the HPC Report, and after consideration the Court passed the order dated 8 September 2020; (b) To meet defence requirements, disaster‑resilient roads are essential rather than disaster‑prone roads; (c) The project was not an initiative of the Ministry of Defence but aimed to increase tourist inflow to over 9,000 vehicles per day, which is an exaggeration as Badrinath receives only about 1,000 vehicles per day and has reached its carrying capacity; (d) The Chief of Army Staff, in an interview, commented that the all‑weather road project meets the Army’s needs., In opposition, Mr K.K. Venugopal, Attorney General for India, made submissions in support of the application filed by the Union of India and the Ministry of Defence. The application seeks modification of the order dated 8 September 2020 to allow the national highways from Rishikesh to Mana, Rishikesh to Gangotri and Tanakpur to Pithoragarh to be developed with a DL‑PS standard. The submissions were: (i) Requirement of DL‑PS standard for strategic border roads: (a) These highways act as feeder roads to the Indo‑China border and have strategic importance; (b) The minority opinion in the HPC Report relied on the statement of the Chief of Army Staff that existing infrastructure was adequate, but circumstances have changed, necessitating a carriageway width of 7 metres to allow smooth movement of military vehicles; (c) These road‑posts have been in use since the 1962 war with China; with increased defence capability, weapons, tanks and machinery, wider roads with DL‑PS standard are required; (d) Neither the 2012 nor the 2018 circular addresses the security needs of the country; the 2018 circular is general and based on PCU traffic, not on strategic military movement; (e) The Armed Forces have sufficient manpower, machinery and equipment to deal with landslides and clear roads for military movement; (f) Prior to 2017, development of these roads was under the Border Roads Organisation; in 2017 a portion was handed over to the Public Works Department and the National Highways and Infrastructure Development Corporation. Before commencement, the road from Rishikesh to Mana already had a 7‑metre wide carriageway, except in some stretches where the width was 3.7‑5.5 metres; (g) The Guidelines for the Alignment Survey and Geometric Design of Hill Roads adopted by the Indian Roads Congress in 2019 also recommend a two‑lane uniform design for strategic border roads; (h) Similar strategic roads in China, Tibet, Nepal and the China‑Pakistan corridor are built with the DL‑PS standard., The Bhagirathi Eco Sensitive Zone was notified by the Union Government on 18 December 2012. In 2018 the notification was amended to state that work related to national security infrastructure can be implemented without a detailed environmental impact study., All‑weather roads are also necessary for connectivity of persons living in remote border areas., Mitigation measures undertaken include: (a) A memorandum of understanding between the Geological Survey of India and the Ministry of Road Transport and Highways to conduct geological studies of strategic roads near the Indo‑China border; (b) Engagement of Tehri Hydro Development Corporation for project management consultancy services for slope restoration; (c) The Defence Geo‑Informatics Research Establishment providing sustainable mitigation measures for snow avalanches and other natural calamities; (d) Slope stabilisation works and protection measures such as soil nailing, shotcreting and secured drapery are being undertaken., Compliance with the Court’s directions: No hill‑cutting activities for road widening have been carried out by the executing agencies. The Ministry of Road Transport and Highways has taken the following steps: (a) Issued directions to all executing agencies, such as the Border Roads Organisation and the National Highways and Infrastructure Development Corporation, to implement the Court’s order; (b) Submitted a draft rapid EIA report to the HPC on 16 September 2020; (c) Submitted details of vulnerable slopes and muck disposal sites to the HPC on 25 September 2020; (d) Formulated a committee to develop a permanent landslide mitigation strategy; (e) Planted 1,275,813 trees in 797.28 hectares as compensatory afforestation, with a further 545,268 trees to be planted; (f) Provided secretarial assistance to the HPC by the State of Uttarakhand under an order dated 7 October 2020; (g) Of the 40 sanctioned projects within the project, 12‑metre formation cutting has already been carried out in 537 kilometres of the total sanctioned length of 662 kilometres, prior to the Court’s order dated 8 September 2020. In such a situation, where 12‑metre formation cutting and a 10‑metre tarred road have already been completed, a substantial reduction of the width to 5.5 metres would result in a non‑uniform carriageway in short stretches., Having addressed the rival submissions, we shall now analyse them. Framework of Analysis: Before analysing the specific issues raised in the context of the project, it is important to consider the framework within which this Court must consider them.
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It is important for us to take note of the relevant judicial pronouncements on the subject, as well as understand the requirements of the circulars and guidelines which have been issued in regard to these issues. However, given the specific setting of the Project in the heart of the Himalayas, our framework has to take into account the unique ecology of the Himalayas. The appellants have provided the Supreme Court of India with examples from the past and the recent history of the Himalayas, which demonstrate that a lack of foresight in development has led to significant environmental harm., Speaking about the Himalayas, the obvious place to begin is their majesty. The Himalayas are considered to be India’s border in the north, just as the vast Indian Ocean is in its south. In lay‑persons geographical terms, it is difficult to imagine that these majestic mountains are nothing more than the debris created during the collision of the Indian and Eurasian tectonic plates several million years ago. While the debris has solidified into rock in many places, it continues to be soil and rubble in others. In comparison to many other ranges, the Himalayas are actually very young when the point of reference is a comparison of ages in the millions. This lends to their comparative fragility. The HPC Report notes that the still evolving Himalayan ranges consist of thrusted, jointed or sheared, fissured or twisted rock material interspersed with soil. Shorn of green cover, their slopes are even more fragile. When exposed to the monsoon rains, weakened slopes often collapse., The Himalayan range is itself diverse and cannot be characterised through one common idea or pattern. Broadly speaking, it is divided into three categories: the Higher Himalayas (called Himadri), which contain some of the highest mountain peaks, are often snowbound throughout the year and are sparsely populated; the Lower Himalayas (called Himachal), which contain medium‑sized mountains and highly populated regions; and the Sub‑Himalayas (called Shivalik), which are the southernmost ranges of the Himalayas. Each of these have their own ecology, rainfall and snowfall distribution, flora and fauna. The concerns associated with each of them are different and have to be accounted for while adjudicating environmental issues raised with development projects., In a 2018 report published by the NITI Aayog, these concerns were noted with pointed reference to the effects of the tourism industry. The report noted: Current forms of tourism in the Indian Himalayan Region are unsustainable. They replace traditional and aesthetic architecture with inappropriate, non‑aesthetic and often dangerous constructions, and compound other challenges such as poorly designed roads and associated infrastructure, inadequate solid waste management, air pollution, degradation of watersheds and water sources, loss of natural resources, biodiversity, and ecosystem services., Similarly, relying upon the NITI Aayog’s conclusions, the Himalayan Project Consortium Report also notes: The Himalaya call for a new development paradigm in which development must be fully embedded in the environmental, socio‑cultural and sacred tenets of the Indian Himalayan Region. It has been observed that the present demand‑driven, uncontrolled economic growth has led to haphazard urbanisation, environmental degradation and increased risks and vulnerabilities, seriously compromising the unique values of Himalayan ecosystems. It is in the backdrop of these observations that we must consider the principles applicable to the judicial review which the Supreme Court of India must undertake in the present case., Sustainable development is a common benchmark through which all development projects are judged. Arguably finding its origin in global policy from the Brundtland Report in 1987, it is often defined as development that meets the needs of the present without compromising the ability of future generations to meet their own needs. Adopted globally as the standard for development by nations, it is the bedrock upon which the Sustainable Development Goals have been laid out. Their latest iteration, consisting of seventeen SDGs, was adopted by all United Nations member States in 2015. Titled the 2030 Agenda for Sustainable Development, these SDGs are broad, with their focus being on overall development of society in a manner which comports with environmental preservation now and in trust for the future. SDG13 specifically focuses on Climate Action, which is to be balanced with the other SDGs such as SDG9, which encourages Industry, Innovation and Infrastructure., The principle of sustainable development has found consistent application in matters of environmental law. Sustainable development has a multidimensional approach, with a focus on the development of the economy, protection of individual rights and environmental concerns, while ensuring both inter‑ and intra‑generational equity. This allows the principle to look beyond creating policy goals towards creating policy approaches. The principle has been explicitly recognised in multiple judgments of the Supreme Court of India., In Indian Council for Enviro‑Legal Action v. Union of India, a three‑judge Bench of the Supreme Court of India described the principle of sustainable development in the following terms: While economic development should not be allowed to take place at the cost of ecology or by causing widespread environmental destruction and violation; at the same time, the necessity to preserve ecology and environment should not hamper economic and other developments. Both development and environment must go hand in hand, in other words, there should not be development at the cost of environment and vice versa, but there should be development while taking due care and ensuring the protection of environment. This is sought to be achieved by issuing notifications relating to developmental activities being carried out in such a way that unnecessary environmental degradation does not take place., In Essar Oil Ltd. v. Halar Utkarsh Samiti, a two‑judge Bench of the Supreme Court of India referred to the Stockholm Declaration while elucidating on the principle of sustainable development. It noted that while socio‑economic needs could be fulfilled through development, environmental concerns will always remain. However, these concerns should not be seen as a deadlock between development and the environment but as an opportunity to harmonise both, through the principle of sustainable development. Speaking through Justice Ruma Pal, the Court observed: This, therefore, is the aim, namely, to balance economic and social needs on the one hand with environmental considerations on the other. But in a sense all development is an environmental threat. Indeed, the very existence of humanity and the rapid increase in the population together with consequential demands to sustain the population has resulted in the concreting of open lands, cutting down of forests, the filling up of lakes and pollution of water resources and the very air which we breathe. However, there need not necessarily be a deadlock between development on the one hand and the environment on the other. The objective of all laws on environment should be to create harmony between the two since neither one can be sacrificed at the altar of the other., In N.D. Jayal & Anr v. Union of India & Ors, a three‑judge Bench held that a balance between developmental activities and environmental protection could only be maintained through the principle of sustainable development. Justice S. Rajendra Babu, speaking for himself and Justice Mathur, held: Before adverting to other issues, certain aspects pertaining to the preservation of ecology and development have to be noticed. In Vellore Citizens’ Welfare Forum v. Union of India and in M.C. Mehta v. Union of India it was observed that the balance between environmental protection and developmental activities could only be maintained by strictly following the principle of sustainable development. This is a development strategy that caters to the needs of the present without compromising the ability of upcoming generations to satisfy their needs. The strict observance of sustainable development will put us on a path that ensures development while protecting the environment, a path that works for all peoples and for all generations. It is a guarantee to the present and a bequest to the future. All environment‑related developmental activities should benefit more people while maintaining the environmental balance. This could be ensured only by strict adherence to sustainable development without which the life of the coming generations will be in jeopardy., The right to development cannot be treated as a mere right to economic betterment or be limited as a misnomer to simple construction activities. The right to development encompasses much more than economic well‑being, and includes within its definition the guarantee of fundamental human rights. Development is not related only to the growth of GNP. In the classic work Development as Freedom, the Nobel prize winner Amartya Sen pointed out that the issue of development cannot be separated from the conceptual framework of human rights. This idea is also part of the UN Declaration on the Right to Development. The right to development includes the whole spectrum of civil, cultural, economic, political and social processes, for the improvement of people’s well‑being and realisation of their full potential. It is an integral part of human rights. Of course, construction of a dam or a mega project is definitely an attempt to achieve the goal of wholesome development. Such works could very well be treated as an integral component for development., More recently, in Rajeev Suri v. Delhi, a three‑judge Bench of the Supreme Court of India had to decide on the permissibility of the Central Vista Project. In considering the use of the principle of sustainable development, Justice A.M. Khanwilkar observed that the principle necessarily incorporates within it the principle of development which is sustainable and not environmentally degrading. He held: The principle of sustainable development and precautionary principle need to be understood in a proper context. The expression sustainable development incorporates a wide meaning within its fold. It contemplates that development ought to be sustainable with the idea of preservation of natural environment for present and future generations. It would not be without significance to note that sustainable development is indeed a principle of development – it posits controlled development. The primary requirement underlying this principle is to ensure that every development work is sustainable; and this requirement of sustainability demands that the first attempt of every agency enforcing environmental rule of law in the country ought to be to alleviate environmental concerns by proper mitigating measures. The future generations have an equal stake in the environment and development. They are as much entitled to a developed society as they are to an environmentally secure society. By the Declaration on the Right to Development, 1986, the United Nations has given express recognition to a right to development. Article 1 of the Declaration defines this right as: The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realised. The right to development, thus, is intrinsically connected to the preservation of a dignified life. It is not limited to the idea of infrastructural development, rather, it entails human development as the basis of all development. The jurisprudence in environmental matters must acknowledge that there is immense inter‑dependence between right to development and right to natural environment. As Arjun Sengupta notes, two rights are interdependent if the level of enjoyment of one is dependent on the level of enjoyment of the other., In Municipal Corporation of Greater Mumbai v. Ankita Sinha, another three‑judge Bench of the Supreme Court of India ruled on the powers of the National Green Tribunal under the National Green Tribunal Act 2010. The Court noted the significance of environmental justice and environmental equity, and highlighted how environmental harms cause disproportionate implications for economically or socially marginalised groups. It was considered important to ensure that environmental equity was achieved, through the use of principles such as sustainable development. Speaking through Justice Hrishikesh Roy, the Court held: The conceptual frameworks of environmental justice and equity should merit consideration vis‑à‑vis the NGT’s domain and how its functioning and decisions can have wide implications in socio‑economic dimensions of people at large. The concept of environmental justice is a trifecta of distributive justice, procedural justice and justice as recognition. Environmental equity as a developing concept has focused on the disproportionate implications of environmental harms on the economically or socially marginalised groups. The concerns of human rights and environmental degradation overlap under this umbrella term, to highlight the human element, apart from economic and environmental ramifications. Environmental equity thus stands to ensure a balanced distribution of environmental risks as well as protections, including application of sustainable development principles., The principle of sustainable development is deep‑rooted in the jurisprudence of Indian environmental law. It has emerged as a multi‑faceted principle, which does not prohibit development, but structures it around what is sustainable. Sustainable development incorporates two related ideas: development which not only ensures equity between the present and future generations but also ensures equity between different sections of society at present. However, while the principle has deep roots, there is a lack of consensus on how to ascertain whether a particular developmental project abides by the principle of sustainable development. Without a common benchmark or standard being applied by the Court in its analysis of the impact of development projects, the principle may create differing and arbitrary metrics depending on the nature of individual projects. This not only creates uncertainty within the law, but makes the application of the principle selective, taking away from its potential to drive sustained change., A cogent remedy to this problem is to adopt the standard of the environmental rule of law to test governance decisions under which developmental projects are approved. In its 2015 Issue Brief titled Environmental Rule of Law: Critical to Sustainable Development, the United Nations Environment Programme has recommended the adoption of such an approach: Environmental rule of law integrates the critical environmental needs with the essential elements of the rule of law, and provides the basis for reforming environmental governance. It prioritises environmental sustainability by connecting it with fundamental rights and obligations. It implicitly reflects universal moral values and ethical norms of behaviour, and it provides a foundation for environmental rights and obligations. Without environmental rule of law and the enforcement of legal rights and obligations, environmental governance may be arbitrary, that is, discretionary, subjective and unpredictable., The United Nations Environment Programme has further reiterated the importance of the environmental rule of law in its 2019 report titled Environmental Rule of Law: First Global Report, where it notes: Environmental rule of law is key to achieving the Sustainable Development Goals. Indeed, it lies at the core of Sustainable Development Goal 16, which commits to advancing rule of law at the national and international levels in order to promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels. Environmental law and institutions have grown dramatically in the last few decades, but they are still maturing. Environmental laws have taken root around the globe as countries increasingly understand the vital linkages between environment, economic growth, public health, social cohesion and security. Countries have adopted many implementing regulations and have started to enforce the laws. Too often, though, there remains an implementation gap. Environmental rule of law seeks to address this gap and align actual practice with the environmental goals and laws on the books. To ensure that environmental law is effective in providing an enabling environment for sustainable development, environmental rule of law needs to be nurtured in a manner that builds strong institutions that engage the public, ensures access to information and justice, protects human rights, and advances true accountability for all environmental actors and decision makers., Within the Indian context, environmental rule of law was first applied by the Supreme Court of India in Hanuman Laxman Aroskar v. Union of India. In that case, the Government of Goa had mooted a new international airport at Mopa in Goa in 1997. While the Ministry of Environment, Forests and Climate Change gave it an Environmental Clearance, it ultimately came before the Supreme Court of India. A two‑judge Bench found a lack of information transparency in the disclosures filed by project proponents, and directed a fresh exercise for a rapid Environmental Clearance to be carried out. In emphasising environmental governance within a rule of law paradigm, Justice D.Y. Chandrachud observed: The environmental rule of law provides an essential platform underpinning the four pillars of sustainable development – economic, social, environmental and peace. It imbues environmental objectives with the essentials of rule of law and underpins the reform of environmental law and governance. The environmental rule of law becomes a priority particularly when we acknowledge that the benefits extend far beyond the environmental sector. While the most direct effects are on protection of the environment, it also strengthens rule of law more broadly, supports sustainable economic and social development, protects public health, contributes to peace and security by avoiding and defusing conflict, and protects human and constitutional rights., Similarly, the rule of law in environmental matters is indispensable for equity in terms of the advancement of the Sustainable Development Goals, the provision of fair access by assuring a rights‑based approach, and the promotion and protection of environmental and other socioeconomic rights., In Bengaluru Development Authority v. Sudhakar Hegde, a two‑judge Bench of the Supreme Court of India observed that there was no winner in environmental litigation, since both development and protection of environment are necessary. The Court clarified that a framework created by environmental rule of law has to balance both considerations by creating transparent and accountable institutions, while allowing for participatory democracy. Justice D.Y. Chandrachud, speaking for the Court, held: The adversarial system is, by its nature, rights based. In the quest for justice, it is not uncommon to postulate a winning side and a losing side. In matters of the environment and development however, there is no trade‑off between the two. The protection of the environment is an inherent component of development and growth. The protection of the environment is premised not only on the active role of courts, but also on robust institutional frameworks within which every stakeholder complies with its duty to ensure sustainable development. A framework of environmental governance committed to the rule of law requires a regime which has effective, accountable and transparent institutions. Equally important is responsive, inclusive, participatory and representative decision making. Environmental governance is founded on the rule of law and emerges from the values of our Constitution. Where the health of the environment is key to preserving the right to life as a constitutionally recognised value under Article 21 of the Constitution, proper structures for environmental decision‑making find expression in the guarantee against arbitrary action and the affirmative duty of fair treatment under Article 14 of the Constitution. Sustainable development is premised not merely on the redressal of the failure of democratic institutions in the protection of the environment, but ensuring that such failures do not take place., In H.P. Bus‑Stand Management & Development Authority v. Central Empowered Committee, a three‑judge Bench held that environmental rule of law was no panacea which allowed for a clear set of solutions in every case, since every case was unique and with differing levels of actual evidence. However, it did provide a framework within which any case could be adjudicated in a predictable manner, keeping in mind the principles of sustainable development at its core. Justice D.Y. Chandrachud, speaking for the Court, held: The need to adjudicate disputes over environmental harm within a rule of law framework is rooted in a principled commitment to ensure fidelity to the legal framework regulating environmental protection in a manner that transcends case‑by‑case adjudication. Before this mode of analysis gained acceptance, we faced a situation in which, despite the existence of environmental legislation on the statute books, there was an absence of a set of overarching judicially recognised principles that could inform environmental adjudication in a manner that was stable, certain and predictable. However, even while using the framework of an environmental rule of law, the difficulty we face is that when adjudicating bodies are called on to adjudicate environmental infractions, the precise harm that has taken place is often not susceptible to concrete quantification. While the framework provides valuable guidance in relation to the principles to be kept in mind while adjudicating environmental disputes, it does not provide clear pathways to determine the harm caused in multifarious factual situations. The determination of such harm requires access to scientific data which is often difficult to obtain in individual situations. The environmental rule of law calls on us, as judges, to marshal the knowledge emerging from the record, limited though it may sometimes be, to respond in a stern and decisive fashion to violations of environmental law. We cannot be stupefied into inaction by not having access to complete details about the manner in which an environmental law violation has occurred or its full implications. Instead, the framework, acknowledging the imperfect world that we inhabit, provides a roadmap to deal with environmental law violations, an absence of clear evidence of consequences notwithstanding., Having now established the framework of judicial principles necessary for the Supreme Court of India to adjudicate the present matter, it is important to consider the specific set of circulars and guidelines which are applicable., A combined reading of Article 246 along with Entry 23 of List I of Schedule VII of the Constitution of India indicates that national highways fall entirely within the ambit of the Parliamentary domain. The executive power of the Union is co‑extensive with the power of Parliament. In accordance with Section 2(2) of the National Highways Act 1956, the Union Government is empowered to declare any road as a national highway and issue directions for its development and maintenance. Within the Union Government, the specific responsibility lies with the Ministry of Road Transport and Highways (MoRTH). Hence, we must first begin by analysing the relevant circulars which have been issued by MoRTH., The first of these is the 2012 MoRTH Circular, titled “Capacity building and lane width of National Highways”. It stated: The Ministry intends to take up development of National Highways having carriageway width less than the two‑lane width. These roads are to be developed to a minimum level. Generally, the carriageway width is dictated by the expected traffic. National Highways which are the primary route have higher expectations in terms of level of service as well as safety. The Ministry observed that the NHs are serving mixed traffic. India has a dubious distinction in terms of fatalities on roads and there is a need to segregate slow moving traffic from fast moving traffic. To ensure safe and smooth traffic on NHs, it has been decided that efforts be made to convert all NHs to a minimum level of two lane with paved shoulders. Henceforth, whenever new projects of widening, bypass or realignment are taken up, the width of the carriageway shall be at least two lane with paved shoulders irrespective of the traffic thereon., The 2012 MoRTH Circular provides that every national highway, if it was presently less than a two‑lane width (i.e., less than 7 m) or if it was under development, had to meet the requirement of the DL‑PS standard in order to ensure safety and the smooth flow of traffic. Accompanying this circular was a pictorial representation of the new national highway width: a two‑lane width (7 m) with each side flanked by 1.5 m of paved shoulders, followed by 1 m of earth/granular shoulders., Following the 2012 MoRTH Circular, the IRC (an apex body of engineers in relation to road development) issued its 2015 IRC Guidelines on the standards to be followed while developing highways with the DL‑PS specification. Section 13 of the Guidelines dealt with the special requirements for hilly roads. While it is not necessary to explain the specific requirements here, the 2015 IRC Guidelines highlight that highways with the DL‑PS standard could be constructed for hilly roads., The 2012 MoRTH Circular was modified by the 2018 MoRTH Circular, titled “Standards for Lane width of National Highways and roads developed under Central Sector Schemes in Hilly and Mountainous terrains”. As the name suggests, the 2018 Circular modified the 2012 Circular to the extent that it applied to national highways in hilly and mountainous terrains. The relevant portions of the Circular read as follows: On the subject of Capacity building and lane width of National Highways, it has been stipulated vide this Ministry’s letter No. NH‑14019/6/2012‑P&M dated 05‑Oct‑2012.
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[2012 MoRTH Circular] that width of carriageway shall be at least two lane with paved shoulders irrespective of the traffic thereon in new projects undertaken for widening of carriageway/bypasses/realignments., However, challenges have come to the fore in adhering to these standards in the context of National Highways and roads in hilly and mountainous terrains. These challenges arise on account of destabilisation of hill slopes and progressive damaging effects on road alignments and structures in higher contours on hills due to excavation works, requirement for large‑scale felling of precious trees, associated environmental damages. Resultantly, there arises need to provide large‑scale protection works, acquisition of additional land for Right of Way (ROW), etc., The provisions of Ministry of Road Transport and Highways letter No. NH‑14019/6/2012P&M dated 05.10.2012 [2012 MoRTH Circular] have, accordingly, been reviewed and it has been decided with the approval of the Competent Authority that the following provisions shall be applicable henceforth for National Highways and roads under Central Sector Schemes in hilly and mountainous terrains until further orders., Following specific provisions shall be made for traffic volumes ranging from 3,000 Passenger Car Units (PCUs) per day to about 8,000 per day: The carriageway width shall be of intermediate lane configurations, i.e., 5.5 m width (18 ft), with two‑lane structures (23 ft). The passing places may have widths of 2.5 m and 12 m length and these may be provided on alternate sides of the road. The length of the tapered section may be 6 m on either side of their approaches. Accordingly, the length of the passing places may be 24 m inclusive of the tapered length. The roadway width for hilly and mountainous terrain as per Indian Roads Congress (IRC) SP‑2015 (Manual of Specifications and Standards for Two‑laning of Highways with paved shoulder) would stand amended accordingly., For traffic volume of more than 10,000 PCUs per day or the existing traffic volumes likely to witness a fast growth to reach this level within a period of 3 to 5 years, the carriageway width shall be of two‑lane National Highway configurations, i.e., 7 m width. The carriageway widths shall be of two‑lane National Highway configurations with paved shoulders only in cases where the traffic is likely to increase at about more than 10 % per annum., The provisions of Ministry of Road Transport and Highways letter No. NH‑14019/6/2012P&M dated 05.10.2012 [2012 MoRTH Circular] shall continue to be applicable in all other cases., The 2018 MoRTH Circular modifies its precursor of 2012 for hilly and mountainous terrains in the following ways: for areas where the PCUs are in the range of 4,000‑8,000 PCUs per day, the carriageway width cannot be of double lane with paved shoulder (DL‑PS) configuration but has to be of intermediate width (IW) standard (i.e., 5 m); along with this, adequate passing places with 2.5 m width have to be included; the 2015 IRC Guidelines stood amended; for areas where the PCUs are more than 10,000 per day (or expected to reach that level within 3 to 5 years), the carriageway width could be of double lane configuration (i.e., 7 m); and where the traffic is likely to increase by more than 10 % per annum, the width could be of DL‑PS configuration., Subsequently, the Indian Roads Congress issued its 2019 IRC Guidelines in relation to hilly roads. Of particular importance is Clause 6.2.2, which reads as follows: Width of carriageway, shoulders and roadway for various categories of roads are given in Table 6.2., Table 6.2 provides widths of carriageway, shoulder and roadway in mountainous and steep terrain (in hilly area) for National Highways and State Highways. For double lane (7.00 m) in open country with isolated built‑up area, the hill side shoulder is 1.5 m, valley side shoulder is 1.5 m, total shoulder width on one side is 4.00 m and on both sides is 11.00 m. For built‑up area and approaches to grade‑separated structures, hill side shoulder is 0.25 m + 1.5 m (raised) and valley side shoulder is 0.25 m + 1.5 m (raised), total shoulder width on both sides is 10.50 m., Notes: On roads subject to heavy snowfall, where snow clearance is done over long periods, roadway width may be increased by 1.5 m, subject to ground conditions, terrain, traffic and other influencing factors. Strategic and border roads for military, paramilitary or security forces operations shall be constructed for not less than two‑lane carriageway along with paved shoulder on hill side and paved and earthen shoulder on valley side on the same lines as National Highway. Clause (8) of the notes attached to Clause 6.2.2 provides that if a road is a strategic or a border road and is going to be used for military, paramilitary or security forces operations, then it must be of DL‑PS configuration (along with earthen shoulders), on the same lines as other National Highways., Finally, the 2020 MoRTH Circular modifies the 2018 MoRTH Circular, in view of the suggestions received from the Ministry of Defence. The circular, titled Standards for Lane Width of National Highways and roads developed under Central Sector Schemes in Hilly and Mountainous terrains, provides as follows, in so far as is material: The standards prescribed therein have been further reviewed in the Ministry in light of the issues raised by the Ministry of Defence. A committee of Chief Engineers considered the suggestions received in this regard and have recommended modifications to the standards prescribed in the circular referred above., It is observed that the standards prescribed in the circular do not address the issues concerning strategic roads as stipulated in clause 6.2.2 of IRC: 2019 Guidelines for the Alignment Survey & Geometric Design of Hill Roads. Accordingly, in partial modification of the circular cited above, the following additional guidelines are notified with immediate effect. For roads in hilly and mountainous terrain which act as feeder roads to the Indo‑China border or are of strategic importance for national security, the carriageway width should be 7 m with 1.5 m paved shoulder on either side., The 2020 MoRTH Circular amends the earlier circular of 2018 since its directions were incompatible with the recommendations under clause (8) of the notes attached to Clause 6.2.2 of the 2019 IRC Guidelines, according to which every strategic and border road has to be of DL‑PS configuration along with earthen shoulders. Hence, the 2020 MoRTH Circular provides that roads which may be located in hilly and mountainous regions but serve as feeder roads to the Indo‑China border or are of strategic importance for national security should also be of DL‑PS configuration., On a combined reading of the 2012, 2018 and 2020 MoRTH Circulars and 2015 and 2019 IRC Guidelines, it emerges that a road shall be of a DL‑PS configuration in the following circumstances: if it is a National Highway, other than in hilly or mountainous terrain; in hilly or mountainous terrain, a National Highway can be double‑laned if there are more than 10,000 PCUs per day or that level will be reached in 3 to 5 years; in hilly or mountainous terrain, a National Highway can be of DL‑PS configuration if the traffic is likely to increase more than about 10 % per annum; and in hilly or mountainous terrain, any road (including a National Highway) can be of DL‑PS configuration if it is strategic or a border road serving as a feeder road to the Indo‑China border or if it is of strategic importance to national security., F. Issues and Analysis – Road‑Width Issue. The issue that arises for consideration is regarding the road‑width to be adopted for the three strategic border roads, as indicated in MA No 2180 of 2020 filed by the Ministry of Defence, namely: Rishikesh to Gangotri (NH‑94 and NH‑108), Rishikesh to Mana (NH‑58), and Tanakpur to Pithoragarh (NH‑125). Broadly speaking, the appellants have argued that the present road infrastructure is sufficient to meet the needs of the Indian Army. Any further development, it has been urged, must be balanced keeping in mind the fragility of the Himalayas, the excessive damage caused to the environment and the need to ensure disaster‑resilient roads. On the other hand, the Union of India has stressed the necessity of developing these feeder roads for the security of the nation., Given the proximity of the roads to the Indo‑China border, and the necessity of free movement for transport of trucks, machines, equipment and personnel of the Indian Army, double‑lane configuration must be allowed, according to the Union of India. To analyse the issue, we shall first advert to the findings of the High Power Committee (HPC)., HPC Report dated 13 July 2020. The HPC report was finalised by its members functioning under Professor Ravi Chopra as its Chairperson. For the preparation of the HPC Report, the members conducted site‑visits, held meetings, interacted with the officers of Ministry of Road Transport and Highways, district officials and the local communities. The Report is divided into twelve chapters, each of which touches upon various aspects of the Project such as road‑widening; hill cutting; bypasses; muck dumping; environment quality; loss of forests and green cover; impact on wildlife; managing water courses; disaster management and socio‑cultural perspectives. For the purpose of the issue for consideration, i.e., the width of roads on the National Highways, Chapter II is of utmost relevance. The remaining chapters have been briefly summarised in Section F.2.1 of this judgment., Chapter II of the HPC Report titled Road Widening deals with the construction of highways and the width of roads. For determining the width of the road, the HPC highlighted that the following factors are to be borne in mind: ecological concerns, social concerns, traffic surveys, capacity of roads, geometric design, terrain classification, design speed, sight distance or visibility, right of way and setback distance at horizontal curves., According to the Indian Roads Congress Hill Roads Manual 1998, the following type of roads have been indicated, based on traffic volumes: Single lane – carriageway width 3.75 m for design service volume 1,600 PCU/day (low curvature) and 1,400 PCU/day (high curvature); Intermediate lane – carriageway width 5.5 m for 5,200 PCU/day (low curvature) and 4,500 PCU/day (high curvature); Two lane – carriageway width 7 m for 7,000 PCU/day (low curvature) and 5,000 PCU/day (high curvature); Two lanes with paved shoulder – carriageway width 7 m for 9,000 PCU/day., The 2012 MoRTH Circular, however, provided that for new projects of widening, bypass or realignment, the width of the carriageway will be at least two lane with paved shoulders, irrespective of the traffic., During the field visit, the HPC observed that though the routes for the Project are designed for the DL‑PS standard, in certain stretches the formation width varies from 12 m to 20 m depending on the geometric requirements. Further, many of the existing stretches, which were already developed to an intermediate width (IW) standard, are being widened. Due to the uniform standard, in some areas large hill‑cutting has been undertaken resulting in vertical slopes without adequate slope protection measures. This has led to landslides and reflects inadequate assessment of slope vulnerability., The discussion of the HPC revolved around the road‑width that should be adopted for the highways comprising the Project. Factors such as the road geometrics, traffic volume, ecological considerations (such as steep terrain, loss of forest cover, etc.) guided the discussion of the HPC. At present, the project requirement envisages a DL‑PS standard as given below: Hill side carriageway 7.0 m, paved shoulder 1.5 m, earthen shoulder 1.5‑1.9 m, valley side 1.0 m (drain + utility duct) 0.6‑1.0 m (including parapets), resulting in overall roadway width between 9 m and 12 m., A majority consisting of thirteen members of the HPC was of the opinion that the DL‑PS standard must be applied uniformly throughout the Project for the following reasons: the IRC Manual recommends a uniform application of design standards and any adjustments for slope variability must be intended for short distances; hill roads require protective works such as retaining walls, breast walls, catch drains, which form a substantial part of construction cost, and widening later would be expensive; some highways are important feeder roads to border areas, and the Border Roads Organisation has highlighted that terrain in border areas is snow‑bound and feeder routes such as Helong‑Mana and Barethi‑Gangotri must be double‑laned; the 2019 IRC Guidelines also suggest that strategic border roads for military and paramilitary forces be not less than two lanes with paved shoulders; suitable adjustments can be made after considering vulnerability of slopes, flood‑prone stretches, wildlife corridors and safeguards., A minority consisting of five members of the HPC, including the Chairperson, was in favour of adopting the intermediate width (IW) standard for the Project. Their opinion was based on the following reasons: the type of road must be determined based on traffic surveys, capacity of roads and ecological considerations; the 2012 MoRTH Circular recommended only an operational standard; the detailed project reports based the choice of road width on traffic survey data that was insufficient, as the traffic count was taken only for April‑May (a non‑peak period) and no surveys were conducted for the Higher Himalayas, suggesting that the DL‑PS standard is extremely wide; the current standard ignores overall environmental considerations such as geological fragility, slope destabilisation, recurring landslides, climate change and soil organic carbon loss, and MoRTH has not conducted an Environmental Impact Assessment for the Project; although border security concerns are relevant, not all routes lead to international borders, and more disaster‑resilient highways are needed, which would not be achieved by cutting fragile slopes; the Chief of the Army Staff’s statement on 20 September 2019 that the current roads adequately fulfilled the needs of the Army; the 2018 MoRTH Circular acknowledges that the DL‑PS standard has led to issues in mountainous terrains and recommended that road design be based on traffic volume, but this circular was not brought to the notice of the HPC members during the discussion., Since the 2018 MoRTH Circular, which was central to the discussion on road‑width, was inadequately considered by the HPC, it was suggested by the Chairperson that a final decision on this issue must be taken by the Supreme Court of India. Apart from the issue of road‑width, the majority of members also recommended that valley side filling must be given importance to avoid slope failures; a footpath for walking along the highways of the Project must be made for pilgrims; and in built‑up areas where roadside facilities and establishments exist, the width of the roads should be kept at 10.5 m (7 m carriageway and 1.75 m paved shoulder on either side)., With regard to the Border Environment Sensitive Zone (BESZ), the HPC noted that the Project has five unsanctioned projects which run through it. The Ministry of Road Transport and Highways plans to upgrade 100.5 km from Uttarkashi to Gangotri to conform to the DL‑PS standard. The following recommendations were made: the Border Roads Organisation, which is the implementing agency, must obtain all requisite clearances under the relevant notifications of the Ministry of Environment, Forests and Climate Change; road widening activities should only be undertaken after detailed Environmental Impact Assessments and mitigation measures; the felling of deodar trees should be avoided; feasibility studies should be conducted for the short tunnels proposed within the highways; and vulnerability evaluations and terrain assessments must be conducted., HPC Report dated 31 December 2020. Following the filing of MA No 1925 of 2020 and MA No 2180 of 2020, this Court by an order dated 2 December 2020 directed the HPC to consider the issues raised by Professor Ravi Chopra and the Ministry of Defence, and submit a detailed report. The HPC Report‑II was thereafter submitted. In relation to MA No 2180 of 2020 filed by the Ministry of Defence, a majority of 21 members recommended that further work to be undertaken by the Ministry of Road Transport and Highways should be according to the 2020 MoRTH Circular, as it is necessary for the security of the nation. A minority of three members was not persuaded that the order of this Court dated 8 September 2020 should be modified. One member recommended that the work on the National Highways from Rishikesh to Gangotri, Rishikesh to Mana, and Tanakpur to Pithoragarh may be carried out according to the 2020 MoRTH Circular, but a flexible approach should be adopted where necessary to minimise damage to forests and wildlife habitats. On the letters filed by the Chairperson, a majority of members recommended that the letters be withdrawn., The majority report indicates that the concerns raised by the Ministry of Defence had been deliberated by the HPC and the majority view in the HPC Report indicated the adoption of the DL‑PS standard. However, the majority report was overridden by the views of four members; the HPC Report discussed the strategic importance of the three National Highways: NH‑34 (previously NH‑94 + NH‑108), NH‑07 (previously NH‑58) and NH‑125; the District Magistrates of Uttarkashi, Chamoli and Champawat expressed concern that the local people wanted an all‑weather reliable road along with the requirement of the Ministry of Defence; and the Rapid Environmental Impact Assessment reports of the Rishikesh‑Rudraprayag stretch indicated that the impact of the Project is 32.25 per cent, which falls in the medium impact category. Thus, from an EIA perspective, the widening of the highways should be permitted., The minority of members stated that on the three feeder highways mentioned by the Ministry of Defence, 161 landslides/vulnerable zones were created. Due to the new landslides, the entire project would be counter‑productive for defence preparedness; the requirement of the Ministry of Defence for the feeder roads should be considered in the context of the need for disaster‑resilient roads, capacity of roads to ensure swift movement of Army vehicles, minimising environmental and social impact and long‑term feasibility of the roads; and the difference between the recommendation of the minority and the MA filed by the Ministry of Defence is in regard to the reduction of carriageway by 1.5 m, with due regard to the requirement of a footpath of 1.5 m for the local population and pilgrims., Analysis on the width of road. Pursuant to the order of this Court of 8 September 2020, the issue of the width of the National Highways that are a part of the Project has been raised in MA No 2180 of 2020 filed by the Ministry of Defence, which seeks modification of the order itself. The grounds listed in the MA indicate that the National Highways from Rishikesh to Mana, Rishikesh to Gangotri and Tanakpur to Pithoragarh are feeder roads to border areas and are vital from the perspective of national security. Thus, it has been urged that development of these highways should be according to the two‑lane configuration., The details of these roads and their proximity to the international border have been provided in the MA by the Ministry of Defence and are reproduced below: Rishikesh to Gangotri (NH‑94 and NH‑108) – 231 km from the Chinese border; Bhaironghati (close to Gangotri) to Muling La Pass – 54 km; Bhaironghati to Nilapani – 42 km; Bhaironghati to Naga – 32 km (being developed to double‑lane specifications, tarring yet to be completed for 11 km and only hill cutting completed in 1 km); Naga to Nilapani – 10 km (already double‑lane); Nilapani to Muling La Pass – approximately 34 km (no road at present, only a track); Bhaironghati to Thagla Pass – 78 km; Bhaironghati to Sumla – 64 km (under construction); Bhaironghati to Sonam – 44 km (being developed to double‑lane specifications – 32 km tarring done, 11 km formation cutting completed, 1 km under progress); Sonam to Sumla – 23 km (single lane completed); Sumla to Thangla Pass – 11 km (foot track)., Rishikesh to Mana – 281 km; distance from Mana to Mana Pass – 54 km; Mana to Mana Pass: Mana‑Ghastoli 21 km (already double‑laned); Ghastoli‑Rattakona 18 km (existing single lane, planned for double‑laning under Bharatmala); Rattakona‑Mana Pass 16 km (hill cutting completed for 12 m wide formation for double‑laning, tarring yet to be done). Distance from Joshimath to Niti Pass – 82 km; Joshimath‑Malari 62 km (already double‑laned); Malari‑Niti Pass 56 km (existing single lane being upgraded to double lane up to Niti village, i.e., for 20 km; ahead of Niti village, single lane road under development up to Geldung). Distance from Joshimath to Tunjun La Pass – 103 km; Joshimath‑Malari 62 km (already double‑laned); Malari‑Girthidobala 19 km (first 9 km already double‑laned and the next 10 km is a single lane); Girthidobala‑Rimkhim 22 km (existing single lane road); Rimkhim‑Tunjun La Pass – approximately 5 km (no road)., Tanakpur to Pithoragarh – 162 km; distance from Pithoragarh to Lipulekh Pass – approximately 209 km; Pithoragarh‑Tawaghat 108 km (under development to double‑lane specifications, of which 51 km completed); Tawaghat‑Ghatiabgarh 20 km (under development to double‑lane specifications); Ghatiabgarh‑Lipulekh 79 km (formation cutting to 10‑12 m width is under progress)., Based on the above description, it is evident that the National Highways provide vital connections to the establishments of the Armed Forces along the Nelong Axis, Mana Pass, Rimkhim Pass, Niti Pass and Lipulekh Pass. The importance of the requirement of double‑laned highways has been emphasized as it is necessary for the movement of trucks, equipment and personnel of the Armed Forces., The above table also indicates that the Ministry of Defence does not seek to widen only the three National Highways which act as feeder roads. Instead, the roads connecting the National Highways from Gangotri, Mana and Pithoragarh to the Army establishments across the border are also in various stages of development and attempts have been made to ensure double‑laned highways as far as possible. The Ministry of Defence has also highlighted that these feeder roads from Rishikesh to Gangotri and Joshimath to Mana were initially included in the Long‑Term Roll on Works Plan 2018‑19 to 2022‑23 of the Border Roads Organisation. This plan seeks to upgrade the National Highways to double‑lane specifications to meet the operational requirements of the Indian Army. Prior to 2016, these roads were under the purview of the Border Roads Organisation, which is an arm of the Ministry of Defence. It is only after 2017 that portions of these roads were handed over to the Public Works Department and National Highways and Infrastructure Development Corporation Limited for speedier development, given the expansive works to be undertaken for the Project., At the outset, therefore, we find that there are no mala‑fides in MA No 2180 of 2020 filed by the Ministry of Defence. The allegation that the application filed by the Ministry of Defence seeks to re‑litigate the matter or subvert the previous order of this Court are unfounded inasmuch as the Ministry of Defence, as the specialised body of the Government of India, is entitled to decide on the operational requirements of the Armed Forces. These requirements include infrastructural support needed for facilitating the movement of troops, equipment and machines. The bona fides of the Ministry of Defence are also evident from the fact that the issue of security concerns was raised during the discussions of the HPC and finds mention in the HPC Report. Thus, the Ministry of Defence has maintained the need for double‑laned roads to meet border security concerns., The appellants have referred to a statement made by the Chief of the Army Staff in 2019 in a media interview regarding the adequacy of infrastructure for troop movement. We do not find it necessary to place reliance on a statement made to the media, given the consistent stand of the Ministry of Defence during the deliberations of the HPC and before this Court. The security concerns as assessed by the Ministry of Defence may change over time. The recent past has thrown up serious challenges to national security. The Armed Forces cannot be held down to a statement made during a media interaction in 2019 as if it were a decree writ in stone., Similarly, the appellants have also raised a challenge to the 2020 MoRTH Circular and have sought a direction that this circular be revoked, on the ground that it recommends the DL‑PS standard without application of mind. This Court, in its exercise of judicial review, cannot second‑guess the infrastructural needs of the Armed Forces. The appellants would have this Court hold that the need of the Army will be subserved better by disaster‑resilient roads of a smaller dimension. The submission of the appellants requires the Court to override the modalities decided upon by the Army and the Ministry of Defence to safeguard the security of the nation’s borders (it is important to remember that the Ministry of Road Transport and Highways issued the 2020 MoRTH Circular based upon the recommendations received from the Ministry of Defence). The submission of the appellants requires the Court to interrogate the policy choice of the establishment which is entrusted by law with the defence of the nation. This is impermissible., We shall now advert to the position of law regarding the construction of double‑laned roads. The 2012 MoRTH Circular stipulated that all National Highways were to have a carriageway width of two lanes. While this circular acknowledged that, generally, the carriageway width is dictated by the traffic volume, in an attempt to ensure smooth flow of traffic, all highways were henceforth to be converted to two lanes with paved shoulders. Thus, according to the 2012 MoRTH Circular, all highways were to conform to the DL‑PS standard., The 2018 MoRTH Circular modified the 2012 version. The Circular of 2018 stipulated that in hills and mountainous terrains, for areas where the PCUs are in the range of 4,000‑8,000 PCUs per day, the carriageway width cannot be of double lane configuration but has to be of intermediate configuration (i.e., 5 m); along with this, adequate passing places with 2.5 m width have to be included; for areas where the PCUs are more than 10,000 per day (or expected to reach that level within 3 to 5 years), the carriageway width could be of double lane configuration (i.e., 7 m); and where the traffic is likely to increase at about more than 10 % per annum, the width could be of DL‑PS configuration. Thus, the 2018 MoRTH Circular did not entirely bar the construction of double‑laned highways in hilly and mountainous terrains. It only made the DL‑PS standard contingent on the current and projected traffic volume for the road., The 2019 IRC Guidelines, in relation to the width of carriageway for National Highways, provided that the DL‑PS standard should be adopted. More specifically, the 2019 IRC Guidelines dealt with National Highways in hills and mountainous terrain that serve as strategic roads and border roads for military and paramilitary operations.
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It provided that such roads should be constructed with not less than a two lane carriageway with a paved shoulder on the hill side and an earthen shoulder on the valley side. The relevant clause is reproduced below: Width of carriageway, shoulders and roadway for various categories of roads are given in Table 6.2. Notes: On roads subject to heavy snowfall, where snow clearance is done over long periods, roadway width may be increased by 1.5 m. However, the requirement of such widening may be examined with reference to ground conditions in each case considering terrain, traffic and other influencing conditions and factors. Strategic and border roads for military, paramilitary, security forces operations and movements shall be constructed for not less than two lane carriageway along with paved shoulder on hill side and paved and earthen shoulder on valley side on the same lines of national highway., The lack of clarity on this issue in the Ministry of Road Transport and Highways (MoRTH) circulars led to the 2020 MoRTH Circular being introduced. The Circular of 2020 reiterates the 2019 Indian Roads Congress (IRC) Guidelines and states that roads in hilly and mountainous terrain, which act as feeder roads to the Indo‑China border should be of Double Lane – Paved Shoulder (DL‑PS) standard, with a 7 m carriageway and 1.5 m paved shoulder. Neither the 2012 nor the 2018 MoRTH Circulars specifically addressed the issue of strategic border roads. The considerations for development of national highways in plains and in hilly and mountainous regions are not identical. Similarly, the considerations governing the construction of highways that are strategic roads from a defence perspective, and may be used by the Armed Forces of the nation, cannot be the same as those for other roads in hilly and mountainous regions. We must therefore arrive at a delicate balance of environmental considerations such that they do not impede infrastructural development, specifically in areas of strategic importance crucial to the security of the nation., Based on the above analysis, we find that the need for the development of national highways of a DL‑PS standard is proportionate to the object of fulfilling the security concerns of the nation as assessed by the Ministry of Defence (MoD). This is reinforced by the fact that the roads beyond the highways in the Project, beyond Gangotri, Mana and Pithoragarh are being developed by the MoD as double‑laned highways., Additionally, the current status of works for the three highways in question is as follows: Rishikesh to Gangotri – total length 231 km, hill cutting for 12 m formation completed 119 km (51.5 %), double laning/black topping completed 75 km (32 %). Rishikesh to Mana (NH‑58) – total length 281 km, hill cutting completed 215 km (76.5 %), double laning completed 151 km (54 %). Tanakpur to Pithoragarh (NH‑125) – total length 162 km, hill cutting completed 127 km (78 %), double laning completed 123 km (76 %). From the above tabulated statement provided by the MoD, it appears that more than 50 % of the hill cutting has already been completed in each of these national highways, and over 50 % of double‑laning has been completed on NH‑58 and NH‑125. In view of this, partial development of the highway compliant with the IW standard and the remaining in conformity with the DL‑PS standard would not be suitable for the needs of the Armed Forces and will, in fact, prolong the movement of troops and equipment., We now turn to the findings and recommendations of the High Power Committee (HPC) regarding the issue of road width. As reflected by the Supreme Court of India’s order dated 8 August 2019, the HPC comprised representatives from governmental bodies, including the MoD, who could highlight the requirements of border roads. The broad terms of reference of the HPC were as follows: to consider the cumulative and independent impact of the Project on the entire Himalayan valleys; to consider whether revision of the full Project (about 900 km) should take place to minimize adverse impact on the environment and social life; to identify sites where hill‑cutting has started and stretches where work has not yet started; to recommend measures for stabilising areas where hill‑cutting has taken place, including environmentally safe disposal of muck; to recommend measures for stretches where work has not started to minimise adverse impact, bring the project in conformity with steep valley terrain and carrying capacity, avoid triggering new landslides and ensure conservation of sensitive Himalayan valleys; to assess environmental degradation in terms of loss of forest land, trees, green cover, water resources, dumping of muck and impacts on wildlife and direct mitigation measures; and to assess and quantify the impact on social infrastructure and public life due to fresh landslides, air pollution, frequent road blocks, etc., and suggest measures for redressal, including preparation of disaster management plans prior to the monsoon., While the HPC was empowered to assess the environmental and social impact of the Project, it was not competent to address, assess or review the security needs of the nation. The work of the HPC was limited to giving recommendations to improve the Project in terms of its environmental impact and to suggest mitigation strategies. The competing interests that the HPC had to evaluate were environmental concerns versus infrastructural development, the primary reason of which in this Project was focused on increasing tourism, providing an impetus to the economy, and ease of transportation for undertaking the Char Dham pilgrimage. Balancing the interests of defence against environmental considerations was outside the ambit of the HPC., The HPC Report highlights that certain highways (NH‑94, NH‑108, NH‑58 and NH‑125) form feeder roads to border locations in the districts of Uttarkashi, Chamoli and Pithoragarh. An extract of the relevant portion of the HPC Report states: Roads beyond Joshimath and Uttarkashi are operationally very sensitive as they fall within 100 km of the Line of Actual Control (LAC). The border terrain lies in high‑altitude, snow‑bound regions. Indian Army and Indo‑Tibetan Border Police (ITBP) units maintain continuous vigil on the borders and important passes. To ensure better national security, the Government of India has given impetus for the development of double‑lane roads towards the border. Roads beyond Bhaironghati and Mana are already double‑laned but the important feeder roads Helong‑Mana and Barethi‑Gangotri are generally single lane (except some intermittent stretches which are improved to two lane) with steep gradients, sharp curves, narrow hairpin bends, avalanche‑prone locations and weak bridges which pose major challenges to vehicle movements. The single lane roads get closed due to snow accumulation and hinder the movement of soldiers even by foot for provisions of logistic and medical aid. Bearing the above observations in mind, a majority of the members of the HPC recommended the adoption of the DL‑PS standard as road width for the Project. This opinion was reiterated in HPC Report II, which considered the Ministry of Defence’s MA No 2180 of 2020., We find ourselves in agreement with this finding of the HPC. Based on the above reasons, we modify the order of the Supreme Court of India dated 8 September 2020 to the extent that the national highways from Rishikesh to Mana, Rishikesh to Gangotri, and Tanakpur to Pithoragarh be developed according to the double‑lane carriageway width with paved shoulder standard as provided in the 2020 MoRTH Circular., An ancillary issue regarding the width of the roads of the Project, apart from the above highways which are strategic feeder roads to border areas, is the interpretation of the order dated 8 September 2020. The Supreme Court of India held that the 2018 MoRTH circular should apply for the reasons given in the report. Consequently, the 2018 circular alone will apply. The other directions issued on 08 August 2019 must be strictly complied with, including the holding of quarterly meetings to ensure timely and proper compliance of the recommendations. Shri Tushar Mehta, learned Solicitor General, argued that the 2018 circular is only prospective in nature. The Court noted that the distinction between retrospective application to projects already completed and prospective application to ongoing projects requires taking stock of the current situation and then moving forward. Having taken stock of the current situation and of the fragility of the ecosystem in mountain terrain, the Court found that this argument has no merit., One of the arguments raised by the appellants in their MA 1925 of 2020 is that, pursuant to this order, MoRTH stated that the order will only be implemented for the 13 projects which have not been sanctioned and where work has not been initiated. In its affidavit dated 15 February 2021, MoRTH stated that the status of road construction work in the Char Dham Pariyojana shows that in almost every sanctioned project, hill cutting has been carried out at various stretches as the old formation width of 12 m, leaving unfinished stretches in between. It is submitted that in a particular sanctioned project, due to operational difficulties, hill cutting and laying down of a tarred road is often not carried out simultaneously or in linear form. Thus, reducing the width of the road to 5.5 m in those unfinished stretches at this stage would cause a serious road safety hazard. The details are reproduced below: Total length of the Char Dham Pariyojana 825 km; Total sanctioned length 662 km; Hill cutting (keeping 12 m in mind) completed as on 08 September 2020 – 537 km; Tarred road with 10 m width completed as on 09 September 2020 – 365 km; Length for which hill is already cut prior to 08 September 2020 but tarred road with 10 m width is yet to be laid – 172 km; Length for which hill cutting is yet to be commenced (which stopped on 08 September 2020) – 125 km. It is further stated that out of the total length of 825 km of the Char Dham Pariyojana, only 151 km consist of non‑strategic roads, whereas the remaining 674 km have immense strategic importance as feeder roads to the Indo‑China border under the control of the Ministry of Defence., The order of the Supreme Court of India dated 8 September 2020 clarified that the 2018 MoRTH Circular will hold the field, regardless of whether works on a highway had been completed or were ongoing. By allowing the Ministry of Defence’s MA for modification of this order, we have permitted the widening of the national highways from Rishikesh to Mana, Rishikesh to Gangotri, and Tanakpur to Pithoragarh, which are strategic feeder roads to border areas. To this extent, the order dated 8 September 2020 stands modified. However, we grant liberty to the respondents to pursue appropriate legal proceedings and seek reliefs in the event that it is necessary to implement the DL‑PS standard for the entire Project., While we have permitted the Union of India and the Ministry of Defence to apply a DL‑PS configuration to the highways mentioned in MA No 2180 of 2020, it is not the end of this matter. There may have been disagreement among the members of the HPC regarding the road‑width issue, but they unanimously agreed on other environmental issues in the manner in which the Project was being implemented by MoRTH. Some of these issues have also been pointed out by the appellants in MA No 1925 of 2020 and their affidavits thereafter, often based upon news reports in relation to the Project. We shall first note these issues as flagged by the HPC, consider their recommendations and, based on that, issue directions to MoRTH and MoD., The environmental and social concerns arising from the Project have been dealt with in Chapter III‑XI of the HPC Report, along with the recommendations and conclusions in Chapter XII. Apart from Chapter II on the issue of road width, the findings of the HPC on all other issues have been unanimous., Chapter III of the HPC Report deals with hill cutting and highlights that slope instability is one of the most frequent disasters in mountains. Hill cutting in the Himalayas is also a major reason for landslides and rockfalls. During field visits, the HPC observed large stretches of hill‑cutting with steep slopes and no protection measures, no slope drainage, and debris falling downhill, further destabilising the slope. The HPC recommended the following measures to mitigate damage and prevent landslides: (i) In many locations, hill‑cutting can be avoided by filling material on the valley side to widen the road; (ii) Sufficient vulnerability analysis must be conducted before further hill cutting and plans for maintenance of slopes must be made; (iii) Roadside drainage measures and protection against toe‑erosion must be undertaken; (iv) In case of near‑vertical cutting, a breast wall may be erected to avoid landslides; and (v) Damaged gabion structures must be repaired through back‑filling, etc., Chapter IV of the HPC Report concerns the 20 bypasses, realignments and tunnel projects proposed for some segments of the national highways as they are geologically unstable or in congested passages. The HPC observed that geological infirmities and the felling of deodar and oak trees are critical issues in these bypasses. It recommended that feasibility studies may be conducted for some of the bypasses, along with their impact on local area residents., Chapter V of the HPC Report concerns muck dumping. Muck management requires safe disposal of the material excavated, tunneled and dislodged. Within the Project, 435 muck‑dumping sites have been identified for the 53 projects. However, the following issues were identified: most projects do not have adequate muck dumping capacity; in five out of seven packages, the authorized capacity is below anticipated volumes; in one‑third of the projects, expected generation exceeds site capacity; most sites are located in gorges or natural drains, along concave sections of rivers, in or adjacent to forests, near agricultural fields or habitations which may not have been authorized; many large and tall sites with high slope angles have not been stabilised; and there is no financial provision for environmentally safe disposal of muck and no guidelines have been provided by MoRTH to EPC contractors, leading to variations in selection of sites and adoption of safe disposal practices, with some contractors dumping on private land on request., For adequate disposal of muck, the HPC recommended: (i) Muck dumping should generally be located downwind of habitation; (ii) Topsoil should be kept separately for later use in rehabilitating muck disposal; (iii) Large locally available boulders should be checked for mechanical properties and used appropriately; (iv) Before muck is dumped at identified locations and construction of protection measures, ensure that the substratum has enough shear strength to sustain the load without creating a slip hazard, and gabion/protection walls should be constructed along contours and above the highest flood level at a safe distance; (v) Muck dumping sites should not be located on the concave side of river meanders, gorges and natural drainage should be avoided; (vi) Plantation of locally available plant species should be preferred for rehabilitation of dump sites along with help from local people and forest department; (vii) MoRTH and implementing agencies must immediately coordinate with district authorities to acquire additional muck dumping sites and necessary clearances to ensure that muck generation equals carrying capacities of sites; (viii) Capacities of sites fully utilised must be stabilised at the earliest, preferably before the onset of the rainy season; (ix) Muck which has fallen on roads after landslides must not be pushed down slope; and (x) All natural drains/streams blocked with dumped muck should be cleared before the monsoons., Chapter VI of the HPC Report deals with environmental quality of the Project, which can be divided into short‑term and long‑term impacts. Short‑term impacts occur due to road construction activities like land clearing, ground excavation and cut‑and‑fill operations, and are visible in the vicinity of the construction activity. Long‑term impacts include climate warming due to soil organic carbon loss as a result of road construction and traffic problems. During their field visits, the HPC were unable to assess the impact of the project on environmental quality due to stoppage of work prior to the visit. However, they observed dust pollution where debris had not been cleared from the road. The HPC also identified long‑term impacts such as vehicular pollution, black soot emission, soil erosion from hill‑cutting and muck‑dumping and soil organic carbon loss due to the Project. The HPC made the following recommendations: (i) Reliable data should be obtained to formulate strategies to control pollution during the construction phase effectively; (ii) Continuous air quality monitoring stations must be placed at each of the Char Dham locations; (iii) A reduction in diesel and petrol vehicles is warranted in view of the ecological sensitivity of the Higher Himalayas; and (iv) Robust stabilisation measures are needed in the Lesser Himalayas and the Shivaliks to conserve their vast forests and soil organic carbon, as they are major carbon sinks., Chapter VII of the HPC Report deals with loss of forests, trees and green cover. Cutting of mountain slopes to widen roads leads to a reduction in green cover in the State. A total area of 689.23 hectares has been diverted from forest land for the Project. This loss of green cover leads to loss of riverine vegetation, topsoil, wildlife habitats and ecosystem services. To redress the loss of forest cover, the Uttarakhand Forest Department raised a plantation as part of the Compensatory Afforestation program. In addition, a Draft Action Plan focusing on afforestation on degraded waste land and forest land along the national highways, restoration of muck disposal, soil conservation works, rejuvenation of existing water resources and landscaping has also been proposed. The HPC recommended: (i) Felling of deodar trees should be avoided; (ii) Road width in dense forest patches may be reduced; (iii) In stretches that are yet to be widened, the topsoil must be separately stored from the remaining muck to facilitate regeneration; (iv) Regeneration of riverine vegetation should be included in the Draft Action Plan; and (v) The Net Present Value rates of forests need to be revised., Chapter VIII of the HPC Report discusses the impact of the Project on wildlife habitats. The Project lies close to the wildlife protected areas of Gangotri National Park, Kedarnath Wildlife Sanctuary, Govind National Park and Wildlife Sanctuary and Rajaji National Park. These protected areas have four highly endangered species: snow leopard, Tibetan argali, Eurasian lynx, Himalayan brown bear and Western Tragopan. Other threatened species include the Asiatic black bear, Tibetan wolf, Himalayan musk deer, pheasant and cheer pheasant. The Alaknanda and Bhagirathi river basins also host a wide range of habitats. During the field visits, the HPC observed that improper muck management resulted in destruction of vegetation cover, which has threatened aquatic habitats. Accordingly, it recommended: (i) Safe wildlife passage should be maintained and included in road building; (ii) Gentle slope shoulders on either side of the road, particularly around sharp bends/blind curves should be avoided; box‑type prefabricated culverts could be used by wildlife; (iii) A comprehensive study of the carrying capacities of the uppermost stretches of the Project and wildlife movement should be conducted; (iv) Opening of Char Dham locations in the winter season should be considered only after a thorough wildlife impact study; (v) Road widening work on NH‑109, NH‑94, NH‑94/134 and NH‑07/58, which are located in eco‑sensitive zones, should be conducted after due approvals; and (vi) Deterrent action must be taken against unauthorized muck dumps and compensatory afforestation should be carried out., Chapter IX of the HPC Report, titled Managing Mountain Water Courses, pertains to the management of springs, streams and surface drainage. The HPC observed poor management of subsurface flows at many locations due to improper structures. In places where perennial flow of water is present, toe drains had not been constructed. Further, due to the huge quantity of muck generated because of the cut‑and‑dump method and disposal into water courses, the water has been deemed unfit for human consumption. The HPC recommended: (i) Culvert design should be based on hydrological investigation to avoid under‑design or over‑design; (ii) Immediate action be taken to clear all natural drains/streams blocked with muck dumping; (iii) Perennial streams should be managed properly by constructing adequate structures; (iv) A diversion drain should be provided above the head of the hill cut area to safely drain water away from unstable or landslide‑prone areas; (v) Toe drains or catch drains must be provided on the uphill side of a road and connected to a culvert or main drain to dispose of water into a natural valley, and a breast wall or toe wall should be provided to prevent blockage of toe drains by fallen overburden soil/boulders; and (vi) There must be safe disposal of heavy runoff and debris through discharge channels or gullies., Chapter X of the HPC Report concerns disaster management measures that must be taken to prevent any disasters owing to the infrastructure activity from the Project. These disasters include natural hazards such as slope failures, flash floods, avalanches, forest fires; engineering hazards when poor quality protection measures are taken; and mass tourist hazards. The significant disaster in the Project has been due to the vulnerability of slopes. One of the main reasons for this occurrence is muck dumping which results in landslides, toe‑erosions and other consequences. Further, no effort has been made to stabilise the slopes already cut. Additionally, in a number of locations, such as at Badrinath, the carrying capacity has been reached. The HPC recommended: (i) A comprehensive study regarding the carrying capacity at various locations in the Project must be conducted; (ii) Given the large number of tourists, a Char Dham Early Warning System Network, connecting all villages, should be developed so that timely action can be taken in case of a disaster; (iii) A survey of vulnerable muck dumping sites must be undertaken, natural streams must be cleared, and slope protection measures should be taken; (iv) Climate vulnerability risk assessment must be conducted; and (v) Protective measures such as well‑constructed breast walls, retaining walls, soil nailing, geotextile sheathing, negative slopes and half‑tunnels in hard rock areas should be observed., Chapter XI of the HPC Report focuses on socio‑cultural perspectives. During the field visits, the HPC members observed broad support for the Project as it would economically benefit the people of the State. However, some issues that have not been addressed are the lack of footpaths for traditional pilgrimage, impact on traditional forest conservation methods, loss of livelihoods due to hill‑cutting without adequate safeguards, increased threat to lives and agriculture in case of heavy rainfall or cloud burst, and damage to schools and infrastructure due to slope failures. Based on these concerns, the HPC recommended: (i) Project authorities should initiate formal mechanisms to facilitate dialogue and receive feedback and grievances from the local community; (ii) A comfortable pathway for the pilgrims must be constructed; and (iii) Conservation of traditions should be encouraged., In Chapter XII of the HPC Report, the HPC summarized the conclusions and recommendations made in each of the preceding chapters., The analysis conducted by the HPC in the unanimous segment of its report is comprehensive and based upon empirical and scientific data. The HPC visited all project sites and individually identified a variety of issues. While these have been divided into chapters in the HPC Report, the underlying themes are evident: (i) In many instances, MoRTH has proceeded with the Project based on assertions that it is compatible with environmental guidelines or that its developmental benefits are proportionate to the harm. To reality‑test these assertions, the HPC has recommended that the State carry out relevant studies to ascertain the true reality, such as for creation of bypasses, maintenance of environmental quality, protection of wildlife habitats and disaster management preparedness; (ii) The HPC Report notes that best practices are not being followed in some areas of concern, such as hill cutting or muck dumping, and has recommended best practices for MoRTH to implement; (iii) In other areas, the HPC has noted harms already caused by the Project, recommended remedial measures such as protection of wildlife habitats (especially in ecologically‑sensitive zones) and maintenance of water resources, and suggested future action to reduce its effects, such as for hill cutting, muck dumping and protection of forest cover; (iv) For some areas, the HPC has highlighted that constant monitoring by MoRTH would be required and necessary systems should be set up, such as for maintenance of environmental quality and disaster management preparedness; and (v) The HPC has also noted the Project’s effect on socio‑cultural communities, and has mandated MoRTH to create avenues for dialogue through which concerns can be understood and resolved., The verdict of the HPC indicates that the Project is riddled with environmental issues, which need to be resolved in order to make it environmentally sustainable. Unfortunately, due to the ongoing litigation in relation to the road‑width issue, these concerns have taken a back seat. However, that cannot be the case going forward., The Attorney General has informed the Supreme Court of India that MoRTH and MoD are presently undertaking measures to address the concerns raised by the HPC, which have been noted in paragraphs 18 (iv) and (v) of our judgment. While we appreciate the measures which have been initiated, they are limited in scope and have been late in coming. In comparison to the issues raised by the HPC, the measures adopted have only begun to scratch the surface. Indeed, they do not address crucial issues such as muck disposal, which not only affects the environment directly but also causes issues for wildlife and availability of water resources. Even the remedial measures in relation to hill cutting and landslides have been tardy and limited and, from the submissions, seem to have been limited only to the roads which are the subject matter of the MoD’s MA No 2180 of 2020, which only concerns the roads of strategic importance to India’s national security. However, it is important to remember that the Project consists of 53 individual projects, not all of which are such roads.
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However, that does not mean that the environmental effect on these roads and their surroundings will be any less important and does not need to be remedied. The State has tried to justify the efficacy of its current measures solely by noting their benefits directly to the Armed Forces. Indeed, while that is a crucial factor, as this judgment acknowledges in Section F.1.3, it is not the only thing at stake in a project of this scale, which was conceived to provide a more efficient route for those undertaking the Char Dham pilgrimage. What is at stake in this project is also the health of the environment and its effects on all individuals who inhabit the area. It is thus important that there must be a significant alteration in the approach to this project by adopting sustainable measures. Piecemeal implementation of some mitigation measures for protection of the environment, without any concrete strategy in place, cannot pass muster., While we have granted our approval to the DL‑PS configuration for the roads mentioned in Ministry of Defence Memorandum No 2180 of 2020, it is made conditional upon the Ministry of Road Transport and Highways and the Ministry of Defence implementing the recommendations made by the High Power Committee, which have been outlined by the Supreme Court of India in Section F.2.1. These recommendations are unanimous. A majority of the members of the High Power Committee comprised government officials and experts. In line with the High Power Committee’s recommendations, there has to be an assessment of the nature of the problem by obtaining actual data through relevant studies for all individual projects. Specific mitigation measures then should be implemented for all projects, keeping in mind their unique concerns. In doing so, the general recommendations issued by the High Power Committee should form the baseline, i.e., they should be implemented at the very least, along with anything over and above that is deemed necessary based on the studies so conducted., More than anything else, this requires a concerned shift in the approach which has been adopted till date. Making the project environmentally compliant should not be seen as a checkbox to be obtained on the path to development, but rather as the path to sustained development itself. Thus, the measures adopted have to be well thought out and should actually address the specific concerns associated with the project. Understandably, this may make the project costlier, but that cannot be a valid justification to not operate within the framework of the environmental rule of law and sustainable development. In its bid to make the project more environmentally conscious, it is also imperative that the Ministry of Road Transport and Highways and the Ministry of Defence be transparent in the measures they adopt, in order for them to be held publicly accountable by spirited citizens. Thus, we direct that the Ministry of Road Transport and Highways and the Ministry of Defence can proceed with the project subject to the condition that it addresses all the concerns which have been raised by the High Power Committee and enumerated by the Supreme Court of India in Section F.2.1 of this judgment, through the recommendations mentioned accompanying these concerns (in paragraphs 82, 83, 85, 87, 88, 90, 91, 92 and 94 of this judgment)., We thus allow Ministry of Defence Memorandum No 2180 of 2020 by permitting the DL‑PS configuration for the three strategic highways in respect of which relief has been claimed. At the same time, we have also taken note of the environmental concerns which have been raised by the High Power Committee for the entirety of the project. We have noted the High Power Committee’s unanimous recommendations for taking remedial measures and direct that they have to be implemented by the Ministry of Road Transport and Highways and the Ministry of Defence, going forward. These specific recommendations have been mentioned in Section F.2.1 and are not being repeated here for the sake of brevity., Further, in order to ensure implementation of these recommendations, we also set up an Oversight Committee, which shall report directly to the Supreme Court of India. This Committee shall be chaired by Shri Justice Arjan Kumar Sikri, former Judge of the Supreme Court of India. In order to enable the Chairperson to receive technical assistance, he shall be aided by: a representative of the National Environmental Engineering Research Institute to be nominated by the Director; and a representative of the Forest Research Institute, Deemed to be University, Dehradun to be nominated by its Director General. The Oversight Committee shall receive all logistical and administrative assistance from the Uttarakhand Ombudsman, the Government of Uttarakhand, the Ministry of Road Transport and Highways, the Ministry of Defence and the Ministry of Environment, Forest and Climate Change. The Secretary of the Environment and Forest Department, Uttarakhand shall ensure that logistical assistance is provided to the Committee. The Ministry of Road Transport and Highways, the Ministry of Defence and the Ministry of Environment, Forest and Climate Change shall also nominate nodal officers for rendering assistance to the Committee, providing information and cooperating with the work of the Committee. The District Magistrates for the districts forming a part of the project shall also provide facilitation and assistance to the Committee., The objective of this Oversight Committee is not to undertake an environmental analysis of the project afresh but to assess the implementation of the recommendations already provided by the High Power Committee (which we have noted in Section F.2.1). A formal notification in terms of these directions shall be issued by the Uttarakhand Ombudsman within two weeks. Within four weeks thereafter, the Ministry of Road Transport and Highways and the Ministry of Defence shall place before the Committee the steps taken by them to adhere to the High Power Committee’s recommendations, along with a projected timeline for complying with the remaining recommendations. Monthly reports of this nature shall be placed before the Oversight Committee by the Ministry of Road Transport and Highways and the Ministry of Defence. The Oversight Committee shall then report on the progress undertaken to the Supreme Court of India every four months. In case of any issues with the implementation of the recommendations, the Chairperson of the Committee shall be at liberty to approach the Supreme Court of India. The honorarium for the Chairperson and members of the Oversight Committee shall be determined by the Chairperson and the payment shall be disbursed by..., We further note that by the order dated 8 August 2019 of the Supreme Court of India, the High Power Committee was tasked with overseeing the implementation of its recommendations and to suggest any further measures which may be required. To avoid any overlap between the scope of work of the High Power Committee and the Oversight Committee formed above, we clarify that the High Power Committee shall continue with its work on overseeing the implementation of its recommendations for the project, except for the national highways from Rishikesh to Mana, Rishikesh to Gangotri, and Tanakpur to Pithoragarh, which shall now fall under the purview of the Oversight Committee., With these directions, we allow Ministry of Defence Memorandum No 2180 of 2020, conditional upon the fulfillment of the conditions outlined above in our judgment and accordingly, Memorandum No 1925 of 2020 is disposed of. Pending applications, if any, shall stand disposed of. [Dr Dhananjaya Y Chandrachud] [Surya Kant] [Vikram Nath]
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Kangana Ranaut, Applicant, versus the State of Maharashtra and another Respondent. Mr. Rizwan Siddiquee, of Siddiquee and Associates, for the Applicant. Mr. A. R. Patil, Additional Public Prosecutor for Respondent No.1 (State). Mr. Jaykumar Bharadwaj, with Ms. Priya Darshini Arora and Ms. Sabiha S. Shaikh, for Respondent No.2. PSI Mr. Shrikant Dhumal from Juhu Police Station is present. Learned counsel for the applicant, Additional Public Prosecutor for Respondent No.1 (State) and counsel for Respondent No.2 were heard., By this application preferred under Section 482 of the Code of Criminal Procedure, the applicant has sought quashing of the criminal proceeding being Criminal Case No. 2575/SS/2020 initiated at the instance of the respondent No.2 in the Court of the Metropolitan Magistrate, 10th Court at Andheri, Mumbai, including quashing of all the orders and summons issued by the Magistrate., Mr. Siddiquee, counsel for the applicant, submitted that the cognizance taken by the Magistrate was without application of mind. He argued that the police report was one‑sided and biased and that the Magistrate should have inquired into the case himself rather than ordering an investigation by the police. He contended that the Magistrate ought to have recorded the statements of material witnesses under Section 200 of the Code of Criminal Procedure, as summoning a person results in serious consequences. While acknowledging that the Magistrate has discretion under Section 202 of the Code of Criminal Procedure to either inquire himself or direct an investigation, he maintained that the first option should have been chosen. He further alleged that the Magistrate illegally delegated the powers of inquiry to the Senior Inspector of Juhu Police Station, leading to the illegal collection of signed witness statements in contravention of Section 162 of the Code of Criminal Procedure. Consequently, the Magistrate could not have acted on those signed statements without examining them on oath. He also asserted that the police acted in a biased manner by not recording the statements of the applicant or her sister., In support of his submissions, counsel relied on the following judgments: M/s. Pepsi Foods Ltd. & Anr. v. Special Judicial Magistrate & Ors.; Sidharta Vashist v. State of NCT of Delhi; Arvindbhai Ravjibhai Patel v. Dhirubhai Sambhubhai Kakadia; Birla Corporation Limited & Ors. v. Adventz Investments & Holdings Ltd. & Ors.; Mehmood Ul Rehman & Ors. v. Khazir Mohammad Tunda & Ors.; Kaimala Bhargavi Amma v. Kundumadathil Ravindran Nair and Ors.; Anil Kumar and Ors. v. M. K. Aiyappa and Ors.; Aero Traders Pvt. Ltd. v. Ravinder Kumar Suri; Ram Khelawan v. State of Uttar Pradesh and others; Tej Kishan Sadhu v. State and others; S. Khushboo v. Kanniammal and others; Sakiri Vasu v. State of Uttar Pradesh and others; Pooja Pal v. Union of India and others; Gangadhar v. State of Madhya Pradesh; Hazari Lal v. State (Delhi Administration); Babubhai and others v. State of Gujarat and others; Zahira Habibullah Sheikh and others v. State of Gujarat and others; Nirmal Singh Kahlon v. State of Punjab and others; Hardeep Singh and others v. State of Punjab and others; Vinay Tyagi v. Irshad Ali and others; Jamatraj Kewalji Govani v. State of Maharashtra; State of Uttar Pradesh v. Bhagwant Kishore Joshi; Adalat Prasad v. Rooplal Jindal and others; Inder Mohan Goswami and others v. State of Uttarakhand and others; Seema Devi v. State of Uttar Pradesh and others; Vinubhai Haribhai Malaviya and others v. State of Gujarat and others; Vijay Dhanuka and others v. Najima Mamtaj and others., Learned counsel for Respondent No.2 opposed the application, submitting that no interference was warranted in the order issuing process or in the order passed by the Sessions Court dated 5 April 2021 dismissing the applicant's revision application. He argued that there is no challenge to the allegations in the complaint filed by Respondent No.2; the challenge is limited to the procedure adopted by the Magistrate. He maintained that the Magistrate followed due procedure as established by law, namely Sections 200, 202 and 204 of the Code of Criminal Procedure, and that it was within his discretion to adopt any of the three options available. He noted that the police had summoned the applicant for recording her statement, as evident from the applicant's tweet dated 21 January 2021, but the applicant did not appear before the police. He further contended that the order dated 1 February 2021 issuing process clearly reflects application of mind by the Magistrate and that the order was not based solely on the police report but on several other factors. He added that the revision before the Sessions Court was rightly dismissed after consideration of all aspects., The Additional Public Prosecutor also opposed the application., It is clarified that the applicant has not sought quashing of the proceedings on the basis of the averments in the complaint, i.e., the alleged defamation does not constitute an offence under Section 500 of the Indian Penal Code. The application is solely on the ground of alleged illegal procedure adopted by the Magistrate. Hence, it is not necessary to consider whether an offence of defamation is made out against the applicant., The respondent No.2 filed a private complaint bearing Criminal Case No. 2575/SS/2020 against the applicant in the Court of the Metropolitan Magistrate, 10th Court, Andheri, Mumbai, on 3 November 2020, alleging an offence punishable under Section 500 of the Indian Penal Code. According to the complainant, the applicant defamed him by making false and malicious statements in an interview given to a television channel on 20 July 2020, thereby damaging his reputation. The complaint was accompanied by a list of witnesses and documents, including a pen‑drive containing the recording of the interview, printouts of news articles published on the channel’s website and covering the alleged defamatory statements. A certificate under Section 65B of the Indian Evidence Act was annexed. The Magistrate recorded the verification statement of the complainant under Section 200 of the Code of Criminal Procedure on 3 December 2020., On 19 December 2020, the Magistrate passed the following order: 'Having gone through the complaint, verification statement on oath and documents furnished on record, and having heard Mr. Niranjan Mundargi, learned advocate for the complainant, I note that the proposed accused resides in Khar West, an area beyond the jurisdiction of this Court. Accordingly, as per Section 202(1) of the Code of Criminal Procedure, it is essential to refer this matter for inquiry to Juhu Police Station to ascertain whether there are sufficient grounds for proceeding. The matter is therefore referred for inquiry under Section 202 to the Senior Police Inspector of Juhu Police Station, who shall conduct the inquiry and submit his report on or before 16 January 2021.', The Senior Police Inspector conducted the inquiry and submitted a detailed report indicating that an offence punishable under Section 500 of the Indian Penal Code was made out against the applicant. Accordingly, the Magistrate issued process on 1 February 2021 for the alleged offences punishable under Sections 499 and 500 of the Indian Penal Code. The order read: 'This complaint is filed for offences of defamation under Sections 499 and 500 of the Indian Penal Code. The accused resides beyond the jurisdiction of this Court; therefore, issuance of process is postponed as per Section 202(1) of the Code of Criminal Procedure. Directions are issued to the Senior Inspector of Juhu Police Station to conduct an inquiry to decide whether sufficient ground exists for proceeding. The inquiry report, filed as Exhibit 07, finds that offences under Sections 499 and 500 of the Indian Penal Code are made out against the accused. Having perused the complaint, oath‑sworn statement, police report and other material, I am satisfied to issue process against the accused Kangana Ranaut for the offences punishable under Sections 499 and 500 of the Indian Penal Code. Summons returnable on 1 March 2021.', The relevant provisions are reproduced below: Section 200 (Examination of complainant) of the Code of Criminal Procedure provides that a Magistrate taking cognizance of an offence on complaint shall examine, on oath, the complainant and any witnesses present, reduce the substance of such examination to writing, and have it signed by the complainant, the witnesses and the Magistrate, subject to certain exceptions. Section 202 (Postponement of issue of process) of the Code of Criminal Procedure allows a Magistrate, on receipt of a complaint, to postpone the issue of process and either inquire into the case himself or direct an investigation by a police officer or any other person, for the purpose of deciding whether sufficient ground exists for proceeding, subject to limitations where the offence is triable exclusively by a Court of Session or where the complaint has not been made by a Court unless the complainant and witnesses have been examined on oath., In the present case, the Magistrate examined the complainant on oath on 3 December 2020 and then referred the complaint for investigation to the Senior Police Inspector of Juhu Police Station. This is a permissible exercise of the discretion conferred by Section 202 of the Code of Criminal Procedure, wherein the Magistrate may choose the option of directing an investigation. The police investigation, after recording statements of several witnesses, concluded that a cognizable offence was disclosed against the applicant. On receipt of the report, the Magistrate, after hearing counsel for Respondent No.2 and considering the evidence on record, issued process on 1 February 2021., The applicant contended that examination of witnesses was essential to enable cross‑examination. However, the question of cross‑examination does not arise at the pre‑cognizance stage under Sections 200 or 202. The Magistrate complied with Section 200 by examining the complainant on oath; the witnesses were not present, and therefore no further examination was required. The Magistrate’s discretion to postpone issuance of process under Section 202 was properly exercised., The order dated 19 February 2020 mistakenly used the term ‘inquiry’ instead of ‘investigation’. The term prescribed in Section 202 of the Code of Criminal Procedure is ‘investigation’, and the mistake is an inadvertent nomenclature error that does not affect the validity of the order., The order issuing process was not based solely on the police report; it was a combined analysis of the complainant’s verification statement, the allegations in the complaint, the CD/pen‑drive recording, the police report and other documents on record, which collectively provided uniform assurance of sufficient ground for proceeding., The applicant was summoned by the Juhu Police Station but did not appear. While the signatures of witnesses on statements recorded under Section 162 of the Code of Criminal Procedure should not have been taken, this does not render the statements inadmissible; it may only affect their evidentiary value, as recognized in case law such as Raleigh Investment Co. Ltd. v. The Governor General in Council., The Sessions Court in Mumbai rejected the applicant’s revision application against the order issuing process, providing cogent reasons. The order dated 5 April 2021 has not been challenged in the present application, and no infirmity is found in it., The judgments relied upon by counsel for both parties establish well‑settled propositions of law, and it is unnecessary to refer to each case individually., Having regard to the foregoing, no ground is made out for interfering with or quashing the proceedings on the basis of alleged procedural irregularity. The order issuing process dated 1 February 2021 reflects application of mind and therefore warrants no interference. Accordingly, the application is dismissed as devoid of merit.
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W.P.(C) No.21560 of 2021 Dated this the 21st day of December, 2021. This writ petition is filed with a prayer to declare that affixing the photograph of the Hon'ble Prime Minister of India in the COVID-19 Vaccination Certificate of the petitioner is an infringement of his fundamental right. There is a further prayer to issue appropriate direction to the first respondent to issue the petitioner a COVID-19 vaccination certificate without the photograph of the Hon'ble Prime Minister in it, along with access to the COWIN platform, to generate such a certificate when needed., The petitioner claims that he is a Right to Information activist and one of the State Coordinators of the National Campaign for the Peoples Right to Information (NCPRI). He also claims that he is an extension faculty of Kerala Institute of Local Administration and State Level Master Coach of the Jawaharlal Nehru Leadership Institute, New Delhi. The petitioner desired to take vaccination against the COVID-19 pandemic. Since the Government of Kerala issued a Government Order prohibiting non‑vaccinated persons from visiting public places, he decided to get vaccinated immediately. When the petitioner entered the COWIN (https://) app/site and registered, he secured a slot for a paid vaccination in a private hospital in Kottayam District, Kerala on 4‑8‑2021. At the time of entry into the COWIN portal, the petitioner was shown the landing page displaying the colour picture of the Hon'ble Prime Minister of India, Shri Narendra Modi, in both English and Hindi. The printout of the screenshot of the landing page is marked as Exhibit P1 in this writ petition., The petitioner took the first dose of COVID-19 and was administered the COVISHIELD vaccine by paying an amount of Rs 750. He was surprised to find that this certificate contains the colour photograph of the Hon'ble Prime Minister, Shri Narendra Modi. At the bottom half of the vaccination certificate, there is a message in Malayalam and English with the words “MEDICINE AND …” and the name of the Hon'ble Prime Minister is mentioned. This certificate is Exhibit P2., The petitioner produced Exhibit P3, the printout of the landing page of the Ministry of Health and Family Welfare website, which includes a message “largest vaccination campaign in the world” with a salute to the Hon'ble Prime Minister, “Thank You P.M. Modi”. He also states that on the birthday of the Hon'ble Prime Minister, celebrated on 18‑9‑2021, a nationwide campaign was carried out calling for a record number of vaccinations as a gift to the Prime Minister., Exhibit P4 is a printout of the screenshot of a tweet of a Cabinet Minister in charge of the Ministry of Health and Family Welfare. Exhibit P5 is a report in Economic Times e‑paper dated 15‑9‑2021, which says that the University Grants Commission has asked government‑funded universities and colleges to display banners and hoardings on free vaccination for all adults and a message thanking Prime Minister Narendra Modi for a free vaccination. Exhibit P6 is a direction sent to Kendriya Vidyalaya Sangathan, Bengaluru Region, for schools in that region to display similar banners thanking the Hon'ble Prime Minister for vaccinations for those above 18 years. Exhibit P7 is the landing page of the first respondent Aarogya Setu App, which also shows the photograph of the Hon'ble Prime Minister with a message “largest vaccine drive”., The petitioner alleges that the National Campaign against COVID‑19 is being converted into a media campaign for the Hon'ble Prime Minister. According to him, the presence of the Prime Minister’s photograph in COVID‑19 related campaigns and messaging in public places—including railway stations, airports, post offices, banks—and on public websites and social media handles of government entities, all with the photograph and name of the Hon'ble Prime Minister, appears designed not for a health campaign but as an effort to show the campaign as a one‑man show, a propaganda to project an individual at state expense., The petitioner produced Exhibit P8, a printout of a news item from The Indian Express, which reports that based on a complaint from a political party, the Election Commission of India directed authorities to remove the Prime Minister’s photograph from the COVID‑19 vaccination certificate in states heading to polls., The petitioner produced Exhibits P9(a) to (f), vaccination certificates of the United States of America, Indonesia, Israel, Kuwait, France, and Germany, to show that in those countries the Prime Minister’s photograph is not affixed in the vaccination certificate., The petitioner submitted Exhibit P10 to the first respondent requesting issuance of a certificate without the photograph of the Hon'ble Prime Minister. No response was received, and consequently the present writ petition is filed., Arguments of the parties, The petitioner was represented by counsel and by Advocate S. Manu, Assistant Solicitor General of India. The petitioner’s counsel submitted that even if the photograph of the Hon'ble Prime Minister in the vaccination certificate is accompanied by a motivational message, the petitioner is not interested in such a certificate. The counsel argued that the photograph forces the petitioner to compulsory viewing, which infringes his right, and that the accompanying message forces him to listen. When the government issues a certificate such as Exhibit P2, the recipient becomes a captive audience, unable to avoid the objectionable speech, namely the photograph of the Hon'ble Prime Minister and his message., The counsel submitted that the state, in its messaging to a captive audience, has no right to compel listening from those unwilling, and that the petitioner’s free speech right under Article 19 of the Constitution of India protects him against compulsory and forced listening. The petitioner produced a table in ground (F) of the writ petition indicating that the photograph of the Hon'ble Prime Minister in his certificate violates his fundamental right as a listener and viewer, corresponding to boxes 4 and 6., The above principle is adapted from Caroline Mala Corbin, “The First Amendment Right Against Compelled Listening”, Boston University Law Review, vol. 89, p. 939., The counsel argued that government messaging should not personify a leader such as the Hon'ble Prime Minister, who, besides being the head of the country, is also the leader of a political party and active in day‑to‑day politics. Campaigns funded by the government ought to be as content‑neutral as possible. The counsel relied upon the Supreme Court judgment in Peoples Union for Civil Liberties v. Union of India (2013 (10) SCC 1), which emphasizes that the essence of the electoral system is to ensure freedom of voters to exercise their free choice. The counsel also cited Common Cause v. Union of India (2015 KHC 4372), wherein the Supreme Court laid down guidelines for advertisements and campaigns using public money, relying on paragraphs 22 and 23 of that judgment., The Assistant Solicitor General of India, Sri S. Manu, submitted that the petition is frivolous and that this Supreme Court of India may not entertain such publicity‑oriented litigations. The ASGI referred to a question raised by a member of the Rajya Sabha and the answer given by the concerned Minister, stating that the photograph in the vaccination certificate is accompanied by a message and there is nothing wrong with the Prime Minister conveying a message to the nation through a vaccination certificate. The ASGI also relied upon the Supreme Court judgment in Sanjeev Bhatnagar v. Union of India (2005 KHC 782), where a petition to delete the word ‘song’ from the national anthem was dismissed with costs., Factual analysis and conclusion, Supreme Court of India considered the contentions of the petitioner and the Assistant Solicitor General. Although the petitioner produced Exhibits P1, P3, P4, and P7 to show that the photograph of the Hon'ble Prime Minister appears in those documents, his prayer is confined to the removal of the photograph from Exhibit P2, the petitioner’s vaccination certificate. In the Court’s opinion, the petitioner is raising fanciful arguments to support his contentions., The relevant portion of the Common Cause case is extracted: “22. … Publication of the photograph of an individual who is a state or party functionary has the tendency of associating that individual with the achievement(s) sought to be highlighted … Photographs therefore have the potential of developing a personality cult … 23. The legitimate and permissible object of an advertisement can always be achieved without publication of the photograph of any particular functionary … there should be an exception only in the case of the President, Prime Minister and Chief Justice of the country …”, Supreme Court of India perused Exhibit P2, the vaccination certificate issued to the petitioner. The certificate contains the statement: “Together, India will defeat COVID‑19” (translation of the Malayalam portion: “medicine and strict control Prime Minister Narendra Modi”)., Supreme Court of India noted that India has been facing the COVID‑19 pandemic for the last one and a half years, with first and second waves. Due to the efforts of vaccine experts, the country has been able to produce a vaccine and also import vaccines. With a population nearing 140 crore, vaccination of all citizens is essential to eliminate the pandemic. In such a situation, the inclusion of a message and photograph of the Prime Minister in the vaccination certificate, encouraging citizens that “medicine and strict control will defeat COVID‑19”, is not wrongful., Supreme Court of India rejected the petitioner’s claim that the photograph of the Hon'ble Prime Minister in his vaccination certificate is an intrusion into his privacy, observing that the Prime Minister, elected by the people, represents the nation, and a morale‑boosting message in a public health certificate does not constitute a violation of privacy., Supreme Court of India observed that the petitioner asserts that he is the State Coordinator of the National Campaign for Peoples Right to Information and an extension faculty of Kerala Institute of Local Administration and State Level Master Coach of the Jawaharlal Nehru Leadership Institute, New Delhi. The Court expressed disappointment, suggesting that the petitioner is pursuing publicity‑oriented litigation rather than a genuine cause., Supreme Court of India noted that the petitioner relied on an article by Caroline Mala Corbin of the University of Miami School of Law, arguing for a new First Amendment right against compelled listening. He produced a table based on that article, asserting speakers’ rights, listeners’ rights, and viewers’ rights, and contended that the photograph and message in the vaccination certificate constitute compelled viewing. The Court pointed out that the petitioner had not produced the full article, only a portion, and that the right against compelled listening applies only when the government forces its message onto an unwilling captive audience., “D. Right Against Compelled Listening – The same values that undergird the traditional free speech rights support a right against compelled listening. When the government forces its arguments or information onto unwilling recipients, it can distort the marketplace of ideas … The listener must be a captive audience … The state violates the right against compelled listening only when the government’s message crosses over from available to required viewing …”, Supreme Court of India held that the principle of a right against compelled listening is applicable only when there is a captive audience. In the present case, the petitioner can avert his eyes to the bottom of the certificate; therefore, the inclusion of the Prime Minister’s photograph and message does not amount to compelled viewing. The argument is deemed frivolous., Supreme Court of India observed that whether other countries choose to exhibit the photograph of their Prime Minister in vaccination certificates is a matter for those countries and does not warrant judicial intervention here., Supreme Court of India noted a general perception among some citizens that political leaders are corrupt, but cautioned against generalizing. It affirmed that the executive, judiciary, and legislature are the three organs envisaged in the Constitution, and that accountability mechanisms exist for each., Supreme Court of India concluded that citizens should respect the Hon'ble Prime Minister of India, and that carrying a vaccination certificate with his photograph and morale‑boosting message does not infringe any fundamental right or constitute compelled viewing. Such contentions are frivolous and should be curtailed., Supreme Court of India referred to the history of Indian democracy, citing Mahatma Gandhi’s description of democracy as a race where the winner must remember that without a loser there is no winner. It recalled the first Prime Minister, Pandit Jawaharlal Nehru, and the inclusive practices of the early Parliament, as well as remarks by former Prime Ministers Atal Bihari Vajpayee and P. V. Narasimha Rao on democratic traditions.
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id_1595
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As Bapuji said, the winner should know that he won the race because there is a loser. The loser should know that he is the loser and he is not the winner. There ends the dispute. Mutual respect is part of democracy. If that is not there, that will be the black day of democracy., Writ Petition (Civil) No. 21560 of 2021. The contentions of the petitioner in this case cannot be accepted at all. According to my opinion, this is a frivolous petition filed with ulterior motives and I have a strong doubt that there is a political agenda also to the petitioner. According to me, this is a publicity oriented litigation. Therefore, this is a fit case that is to be dismissed with a heavy cost., A citizen of this country argues before the Kerala High Court that carrying the photograph of his Prime Minister in the vaccination certificate with a morale boosting message in a pandemic situation is an intrusion to his privacy. The petitioner says that it is a compelled viewing. As I observed earlier, these are frivolous contentions, which never expect from a citizen. The petitioner should study the respect to be given to the Prime Minister and others by watching at least the parliamentary proceedings, which are available live on National TV. The opposition leaders will object to the policies of the Government with vehemence, but they will address the Prime Minister as the Honourable Prime Minister., According to me, an amount of Rupees One Lakh (Rs. 1,00,000) should be imposed as a cost in the facts and circumstances of this case. I know the above amount is big as far as a citizen is concerned. But when these types of frivolous contentions are raised by the petitioner, he should know the effect and the society also should know that if frivolous petitions are filed, the Kerala High Court will not accept the same., Thousands of convicted persons in criminal cases are in jail in our country waiting for hearing their appeals. Thousands of people are waiting for a result in their matrimonial disputes. Thousands of people are waiting for the result in their property disputes. In such a situation, this Court has to consider those litigations as early as possible and this Court is doing that every day. In such a situation, when frivolous petitions are filed, that should be dismissed with a heavy cost., There can be a direction to the petitioner to pay the cost within six weeks from today and the cost should be paid to the Kerala State Legal Services Authority, which is doing a great job in the state of Kerala by helping the poor genuine litigants. If the amount is not paid by the petitioner, the Kerala State Legal Services Authority should recover the same from the assets of the petitioner by taking appropriate steps through revenue recovery., Therefore, the above writ petition is dismissed imposing a cost of Rupees One Lakh (Rs. 1,00,000) which is to be paid by the petitioner to the Kerala State Legal Services Authority within six weeks. If the amount is not paid by the petitioner within six weeks, the Kerala State Legal Services Authority will take appropriate steps to recover the same through revenue recovery from the assets of the petitioner, in accordance with law forthwith and report the same before the Registrar General of the Kerala High Court after recovery. The registry will serve a copy of this judgment to the Member Secretary, Kerala State Legal Services Authority for compliance.
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id_1598
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Appellant: Uday Prakash; Respondent: Anand Pandit and Another. Counsel for Appellant: Shantanu. Counsel for Respondent: Ankur Tandon, Anubhav Shukla, Rahul Agarwal, Rahul Rathi, Ram Shiromani Shukla., This is a plaintiff's appeal from an order of Mr. Jitendra Kumar Sinha, the learned District Judge, Ghaziabad, rejecting his application for temporary injunction in a suit for infringement of copyright., The suit was instituted complaining of infringement of a copyright owned by the plaintiff relating to a story‑screenplay‑dialogues for a feature film, registered with the Copyright Office at New Delhi under Registration No. L‑28822/2007 dated 16.07.2007. The literary work was registered under the name Highway‑39 and shall hereinafter be referred to as the copyrighted work. The suit, wherein the temporary injunction application was made, was instituted in December 2019 and registered as Suit No. 2 of 2019. The reliefs claimed are: (A) a decree of perpetual/permanent injunction restraining the defendants, jointly and severally, from infringing the registered copyright of the plaintiff in respect of his story and screenplay titled Highway‑39 by converting and adopting the same into a motion picture/feature film in any name; and from producing, making, promoting, publicising, releasing or communicating to the public the infringed feature film. (B) a decree of mandatory injunction directing the defendants to deliver all versions of the story/script/screenplay, reels and/or the produced work based on the registered copyright work of the plaintiff; and to remove from the internet and other platforms, including social media, all promotional material of the infringed feature film. (C) a decree for the rendition of accounts of the advance amount received by the defendants from distribution companies, television channels or internet television networks by selling distribution, satellite or streaming rights of the feature film made by the defendants by infringing the plaintiff's copyright., The plaintiff‑appellant, Uday Prakash, hereinafter referred to as the plaintiff, claims to be a Hindi poet, scholar, filmmaker, journalist and former professor with Central Universities. He also claims to have worked as an administrator with the Government of India, as an editor, researcher and television director with national and private TV channels, and to write for major national dailies and periodicals on social and cultural issues. The pleading sets out his scholarly status and a list of prestigious literary awards and works of repute., The plaintiff states that he conceived, conceptualised and wrote the screenplay (the copyrighted work) and got it registered with the Film Writers Association, Mumbai, and with the Copyright Office, New Delhi on 16.07.2007 under Registration No. L‑28822/2007. He discussed the work with his acquaintance Mazhar Kamran, who was then working as a cameraman for the plaintiff on several audiovisual projects (2000‑2005). Kamran assured the plaintiff that he would show the work to a few prominent producers, including Anand Pandit, who is defendant No.1. Defendant No.1 is a well‑known producer and proprietor of Anand Pandit Motion Pictures; Rumi Jaffery of Saraswati Entertainment Pvt. Ltd., Mumbai, is defendant No.2. Jointly they are referred to as the defendants., In or about June 2019 the plaintiff learned from reliable sources in the film industry that defendant No.1 was making a movie under the direction of defendant No.2 that was very similar to the copyrighted work. The plaintiff was informed that defendant No.1 had scheduled a release of the movie under the title Chehre. Public information indicated that the movie went into production around May 2019. The plaintiff received reliable information that the feature film Chehre was based exactly on the same plot and premise as his copyrighted work. He issued a cease‑and‑desist notice on 14.06.2019 calling upon the defendants to stop using any portion of the copyrighted work, including his professional, intellectual and creative ideas, and to halt production of the feature film., The defendants replied on 29 June 2019 denying infringement. The plaintiff alleges that the defendants are knowingly infringing his copyright, have engaged high‑profile artists without his permission, and have not assigned, transferred or sold his copyright to any third party. The alleged infringement is said to cause loss of name and reputation, severe harassment, and a cascading effect on the plaintiff's professional prospects as an author., The plaintiff claims that the defendants' conduct not only infringes the registered copyright but also constitutes breach of confidence and unlawful trade, depriving him of the fruits of his intellectual labour invested with colossal time, intellect and effort., Alongside the suit, an application for interim injunction under Order XXXIX Rules 1 and 2 read with Section 151 of the Code of Civil Procedure was made. The prayer reads: “In the above mentioned circumstances and in the interest of justice this Hon'ble High Court may be pleased to grant ad‑interim ex‑parte injunction in favour of the applicant/plaintiff and against the defendants, their associates, musclemen, agents, legal heirs, representatives etc., till the pendency of the suit.”, The learned District Judge interpreted the prayer as an aid to the main relief, directing the defendants, pending suit, not to produce or release the feature film. Although not expressly stated, the order’s tenor leaves no doubt that this was the construction adopted by the learned District Judge., Defendant No.1 filed a written statement raising preliminary objections, contending that no cause of action was disclosed and that the copyrighted work lacked ingenuity and originality because it was an adoption of a banal theme in the public domain. It was pleaded that the work was borrowed from the Swiss novel A Dangerous Game by Friedrich Dürrenmatt, published as Traps in the United States and Die Panne in Germany, and that the theme has been used in stage plays, films and TV shows in Hindi and Marathi. The defendant asserted that the feature film is not similar to, nor connected with, the copyrighted work and does not infringe it., The defendants also claimed that the film was not scheduled for release in February 2020 and that the suit was therefore a quia timet action founded on unreliable sources and erroneous apprehension., The matter was heard before the Hon'ble High Court by Mr. Gaurav Bhardwaj, Mr. Shantanu, Ms. Poonam Meena, Mr. Mahir Malhotra, Mr. Raj Kumar Dhama (counsel for the plaintiff) and Mr. Shashi Nandan, Senior Advocate, assisted by Mr. Ankur Tandon (counsel for respondent No.1) and Mr. Rahul Agarwal, counsel for respondent No.2, together with Mr. Anubhav Shukla, Mr. Prafull Shukla and Mr. Nishchal Anand., Counsel for the plaintiff criticised the learned District Judge’s order for refusing the temporary injunction on irrelevant parameters, including the observation that the copyrighted work, though registered, was an unpublished document, and the suggestion that Mazhar Kamran should have been impleaded as a party. The plaintiff argued that an unpublished copyright, whether registered or not, is protected intellectual property and cannot be plagiarised merely because it has not been published. The plaintiff also contended that the failure to implead Kamran was immaterial because the cause of action does not seek relief against him; at most he may be examined as a witness., The Hon'ble High Court noted that the learned District Judge’s remarks about the unpublished nature of the work and the alleged need to implead Kamran were not relevant to the plea for a temporary injunction. An unpublished copyright is protected, and the plaintiff is not required to implead a person with whom he merely discussed the work. These observations were deemed erroneous but not the sole basis for refusing the injunction., The plaintiff submitted that the learned District Judge committed an error apparent on the face of the record by treating the matter as a summary trial and seeking evidence at the stage of the temporary injunction, which is manifestly illegal. The plaintiff relied on the Rajasthan High Court decision in Fateh Singh Mehta v. O.P. Singhal & Ors. and the Supreme Court decision in Wander Ltd. & Anr. v. Antox India P. Ltd., The defence argued that the sole substantial defence is the absence of a pleaded comparison between the feature film and the copyrighted work. The plaintiff had moved an application for discovery of documents under Order IX Rule 12 of the Code of Civil Procedure (along with a notice for production of documents under Order XII Rule 8) seeking the defendants’ story/script. The defendants refused to disclose the script, claiming it would jeopardise the commercial viability of the project. Consequently, the plaintiff could not plead details of the comparison. The plaintiff relied on the Supreme Court decision in Gopal Krishnaji Ketkar v. Mohamed Haji Latif & Ors., The defence further submitted that the belated approach to the Hon'ble High Court against the impugned order dated 08.04.2021, on the eve of the movie’s release, should disentitle the plaintiff to relief. The defence argued that the Covid‑19 pandemic’s second wave (April‑June 2021) created extraordinary circumstances, and the plaintiff only learned on 14 August that the defendants intended to release the film on 27 August 2021, moving the Court on 19.08.2021., The plaintiff contended that the defence’s claim that the suit is a quia timet action based on mere apprehension is no longer tenable. Reliance was placed on the Madras High Court decision in P.G. Narayanan v. The Union of India., The plaintiff further alleged that the defendants’ conduct is mala fide, unscrupulous and fraudulent, seeking to financially capitalise on his creativity, labour and scholarship in violation of a registered copyright. The plaintiff relied on the Telangana High Court decision in Super Cassettes Industries Private Limited & Another v. Nandi Chinni Kumar & Others and argued that the learned District Judge erred by not securing a copy of the script for comparison. The defence’s argument that the film’s investment of hundreds of crores of rupees precludes an injunction was described as abominable., Counsel for respondent No.1, Mr. Shashi Nandan, Senior Advocate, assisted by Mr. Ankur Tandon, argued that the plaintiff’s claim that he shared the copyrighted work with Mazhar Kamran is founded on sheer conjecture, with no proof that the script was shared or that Kamran passed it to the defendants. The suit, according to the defence, is based on hearsay, conjecture and surmise., Counsel for the defendants submitted that the plaint is bereft of a cause of action and fails to disclose that (a) the copyrighted work is an original literary work; (b) defendant No.1 had access to the work; and (c) the script of the feature film is substantially similar to the copyrighted work. The defence relied on the Bombay High Court decision in Mansoob Haider v. Yashraj Films Private Ltd., The defence further argued that the plaintiff’s case is speculative and does not meet the minimal standard of proof. It was submitted that at best the suit is a quia timet action, where the burden of proof is greater on the plaintiff. Reliance was placed on the Bombay High Court decisions in Graigola Merthyr Company Limited v. Mayor Alderman and Burjesses of Swansea and Zee Entertainment Enterprises Ltd. v. Sony Pictures Network Pvt. Ltd., The defence maintained that a civil suit cannot be a fishing or roving inquiry and must be based on established principles of law and accurate pleadings. The plaintiff’s application for discovery was objected to on legal grounds, and the trial judge never directed the defendants to submit the script for the Court’s perusal. The defence asserted that the script and the copyrighted work are both inspired by the theme of the novel A Dangerous Game., The defence submitted that even if a comparison of the two scripts shows a common theme, the treatment is completely different and therefore does not constitute infringement. It argued that the plaintiff’s claim lacks a prima facie case and is designed to prevent the defendants from commercially exploiting the near‑completed feature film, which has contracts with OTT platforms and distributors. An embargo on release would cause irreparable injury to the defendants and third parties, whereas any award to the plaintiff could be satisfied by monetary compensation and credit. The defence relied on the Bombay High Court decision in Akashaditya Harishchandra Lama v. Ashutosh Gowarikar and the Delhi High Court decision in John Hart Jr. and Another v. Mukul Deora and Others., The Hon'ble High Court considered the rival submissions and noted that the plaintiff’s contention that the learned District Judge erred by expecting evidence at the interim injunction stage is not substantially persuasive. The fundamental principles governing a motion for temporary injunction require the plaintiff to establish a prima facie case, irreparable loss, and the balance of convenience. While the injunction is discretionary and decided on affidavits, a prima facie case must be established on the pleadings. The Court referred to the Wander Ltd. decision, which outlines the need to protect the plaintiff against injury that cannot be adequately compensated in damages, balanced against the defendant’s right to continue his enterprise., The Court observed that the Fateh Singh Mehta decision, though cited by the plaintiff, is not highly relevant to the present issue., The Court examined whether a prima facie case of copyright infringement is made out. To establish such a case, the plaintiff must show that the literary work is his original creation, that the defendant had access to it, and that the offending script is substantially similar. While the plaintiff holds a registered copyright, the pleadings are vague. The plaintiff mentions discussion with Mazhar Kamran but does not state that the work was shown or handed over to him, leaving the intermediary’s role uncertain.
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id_1598
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A mere discussion of a work involving intellectual intricacies with another is not a case enough to impute that other with knowledge of its contents; and knowledge good enough to share it with a third party. The pleadings, therefore, are woefully vague about the access of the defendants to the copyrighted work., The next assertion in the plaint that the plaintiff was given information about Defendant No. 1 producing the feature film, which is essentially similar to the copyrighted work, is also utterly vague. It is set out in Paragraph 5 of the plaint. The plaintiff does not name the source through which he came to know that the feature film is based on a script that is a plagiarized version of the copyrighted work. The terms employed in the relevant pleadings are \reliable source/sources from the film industry\ which can hardly make a prima facie case or a triable case for the grant of a temporary injunction in an action for infringement of copyright., There is another issue which is required to be addressed. It is connected to the fundamental issue about whether the plaintiff at all had a cause of action to proceed for infringement with the kind of allegations that find place in the plaint. Prima facie, the plaintiff never had occasion to see the contents of the script leading to the feature film, the movie having not been released as yet and certainly not until the time the suit was filed. The plaintiff has inferred that it is a copy of his work on the basis of some hearsay, that he has expressed through vague allegations in the plaint, describing them as reliable sources from the film industry. The entire action is, therefore, based on the plaintiff's conjecture. This cannot be the basis of an action for infringement of copyright., In this connection, reference may be made to the decision of the Bombay High Court in Zee Entertainment Enterprises (supra). The aforesaid principle is well‑established that unless there is the infringing copy in the hands of the plaintiff, an action in the nature of quia timet would not lie, and even if it does, a temporary injunction on the basis of mere speculation would not be granted. In Zee Entertainment Enterprises, it was held: Mr. Kadam then relies on the decision of a learned Single Judge of the Bombay High Court (A.M. Khanwilkar, J as he then was) in Urmi Juvekar Chiang v. Global Broadcast News Ltd to say that what is required is not a hypercritical or meticulous scrutiny but an assessment from the perspective of the average viewer. I understand this to mean that having seen Sony's show, would the average viewer believe that this is in fact a copy of Zee's show. We cannot today adopt that standard, and this of Zee's making, because it chose to make this as a quia timet application. This is not without consequences. Sony's show is scheduled to release only on 8th April 2016. Nobody has seen it yet. What Zee proceeds on is something of speculation or conjecture. Effectively Zee asks me to conclude that Sony's show releasing this Saturday, 8th April 2016 must necessarily be an infringing copy of Zee's show; and this I am supposed to conclude or am invited to conclude on the basis of paragraphs 8, 9 and 10 of the plaint; although, as we have seen, in those paragraphs the distinct elements (in paragraph 10) have been disclaimed, and the other paragraphs only contain non‑specific generalities without any explanation as to the original labour or effort put in by Zee. During the rejoinder, I did ask Mr. Khandekar to consider whether he would prefer to wait till after the show is released on Saturday, on my closing the hearings today, so that the Plaintiffs would have had the opportunity to see the show's first episodes. Mr. Khandekar did take instructions and these were to proceed with the matter today rather than wait for the release. That is certainly something the Plaintiffs are entitled to do and it cannot prejudice the final results. But inevitably what it does mean is that Zee's case is then limited to a matter of speculation without even meeting a minimal standard of proof. This creates enough difficulties in the context of the claim in infringement but it creates even more difficulties in the context of the claim in passing off and to which I will next turn., On general principles governing an action that is in the nature of quia timet, it has long been held that for an injunction to be granted on a threat of injury, the evidence about the threat should be through some tangible evidence laid before the Bombay High Court. An injunction of this kind cannot be sought by a plaintiff on bald assertions based on hypothetical facts. The burden of proof in a quia timet action is also much heavier than in a case where the defendant has acted and wronged the plaintiff to his detriment., The principle is classically stated in the decision of the Court of Appeal in Graigola Merthyr Company Limited (supra), where Lord Hanworth M.R. said: \A quia timet action is not based upon hypothetical facts for the decision of an abstract question. When the Court has before it evidence sufficient to establish that an injury will be done if there is no intervention by the Court it will act at once, and protect the rights of the party who is in fear, and thus supply the need of what has been termed protective justice.\, In Graigola Merthyr Company Limited, in his separate but concurring opinion, Lawrence L.J. held: \The only difference between the two cases is that in a purely quia timet action the burden of proof resting on the plaintiff is far heavier than in an action where an act has already been done and has already caused actual damage. In both cases, however, the issue is the same namely, where the act (completed or intended) is an act causing substantial damage to the plaintiff.\, The submission of the learned counsel for the plaintiff that the defendants' plea that the suit is a quia timet action based on a mere apprehension is now no longer open, nor was it ever open, must be dealt with. Learned counsel for the plaintiff has also said that it is no longer a mere apprehension and is something that ought to be viewed in the plaintiff's favour. In urging this part of his submission, he has drawn inspiration from the decision of the Madras High Court in P.G. Narayanan (supra), where it was held: Learned counsel for the petitioner also submitted that the petitioner is entitled to invoke the jurisdiction of this Court for a quia timet action. Quia timet is an extraordinary relief granted by Courts to prevent irreparable harm. It gives relief to parties who face imminent threat or danger of a tortious harm for which there is no adequate legal relief available later. They are actually writs of prevention which require three conditions (a) no actual present injury, (b) reasonable fear of future harm, and (c) irreparable harm, if relief is not granted. According to the learned counsel for the petitioner, the violation has already occurred. If so, condition (a) is not satisfied. The petitioner has not made out a case of reasonable future harm. It is not clear how if the licence is granted to the sixth respondent, public interest will be injured and hence, condition (b) is not satisfied. Further, it is not as if even if the sixth respondent is granted the licence, the harm is irreparable, since it is seen from the guidelines that the licence is not a permanent one; it is for a period of ten years and it is terminable at the instance of the licensing authority, which is the Union Government. Quia timet action is defined as one a claimant may bring to obtain an injunction to prevent or restrain some threatened act which, if it is done, would or may cause substantial damage and for which money would not be a sufficient or appropriate remedy. None of these ingredients are satisfied in the present action., From what the Bombay High Court has been able to make out of this part of the submission by the plaintiff's learned counsel, it is that with the impending release of the feature film, the apprehension has turned into a potent threat staring the plaintiff in his face. It is true that it can no longer be said that the defendants are not about releasing the feature film and that part of the cause of action is based on a mere apprehension, which would not support a quia timet. The feature film has completed its gestation and would be released by the defendants in the morning hours tomorrow, but the mere release would not afford the plaintiff a cause of action prima facie to maintain a quia timet. He would have to demonstrate, from a case duly pleaded and evidence good enough to support an entitlement to a temporary injunction, that the copyrighted work and the script leading to the feature film are prima facie so similar in treatment, may be of a common theme, that it is no more than an offending copy of the plaintiff's copyright. Prima facie the plaintiff has not pleaded sufficiently and proved up to the threshold by a comparison of the two scripts a positive case of violation of his copyright. As already said, the allegations about violations of the plaintiff's copyright in the plaint are based on mere hearsay and no more. The decision in P.G. Narayanan is hardly attracted on the facts here., The next submission advanced on behalf of the plaintiff is based on the objection of the defendants that the plaintiff ought to have pleaded accurately the similarities between the copyrighted work and the script underlying the feature film, which was not done. Learned counsel for the plaintiff has largely said that considering the vantage at which the parties stand, the plaintiff did not have access to the script leading to the feature film. Therefore, it is impossible to expect him to have pleaded the similarities with full particulars therein in the plaint. It has also been said that the application for discovery, though made, was opposed with the result that neither the plaintiff nor the learned judge could ever have the advantage of comparing the two works. However, whatever the reason for the failure to plead in the plaint, the offending similarity between the copyrighted work and the script said to be the foundation of the feature film, would it entitle the plaintiff to maintain the action prima facie? Learned counsel for the plaintiff says that where there are no means for the plaintiff to know the contents of the infringing script and despite demand, the defendant does not disclose its contents in answer to an application made for the purpose, the burden must be placed on the shoulders of the one who withholds the best evidence which is in his possession, not only from the plaintiff but also from the Bombay High Court., In support of this contention, learned counsel for the plaintiff has drawn the Supreme Court of India's observations in Gopal Krishnaji Ketkar (supra): \Lastly, reference should be made to the important circumstance that the appellant has not produced the account of the Dargah income. In the course of his evidence the appellant admitted that he was enjoying the income of Plot No. 134 but he did not produce any accounts to substantiate his contention. He also admitted that he had got record of the Dargah income and that account was kept separately. But the appellant has not produced either his own accounts or the account of the Dargah to show as to how the income from Plot No. 134 was dealt with. Mr Gokhale, however, argued that it was no part of the appellant's duty to produce the accounts unless he was called upon to do so and the onus was upon the respondents to prove the case and to show that the Dargah was the owner of Plot No. 134. We are unable to accept this argument as correct. Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof. In Murugesam Pillai v. Manickavasaka Pandara, Lord Shaw observed: A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing, accordingly, to furnish to the Courts the best material for its decision. With regard to third parties, this may be right enough they have no responsibility for the conduct of the suit; but with regard to the parties to the suit it is, in Their Lordships' opinion, an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition. This passage was cited with approval by this Court in a recent decision Biltu Ram v. Jainandan Prasad. In that case, reliance was placed on behalf of the defendants upon the following passage from the decision of the Judicial Committee in Bilas Kunwar v. Desraj Ranjit Singh: But it is open to a litigant to refrain from producing any documents that he considers irrelevant; if the other litigant is dissatisfied it is for him to apply for an affidavit of documents and he can obtain inspection and production of all that appears to him in such affidavit to be relevant and proper. If he fails so to do, neither he nor the Court at his suggestion is entitled to draw any inference as to the contents of any such documents. Shah, J., speaking for the Court, stated: The observations of the Judicial Committee do not support the proposition that unless a party is called upon expressly to make an affidavit of documents and inspection and production of documents is demanded, the Court cannot raise an adverse inference against a party withholding evidence in his possession. Such a rule is inconsistent with Illustration (g) of Section 114 of the Evidence Act, and also an impressive body of authority.\, The question in Gopal Krishnaji Ketkar arose in the context of an issue, whether the land in dispute was the property of Peer Haji Malang Dargah or the appellant. It was in the context of the accounts relating to Plot No. 134, which the appellant admitted he was maintaining and did not produce. It was held that even if the burden of proof does not lie on a party, the Court may draw an adverse inference if that party withholds important documents that can throw light on the facts in issue. The proposition involved here is not at all about the burden of proof, but the cause of action itself. What is required to be examined is, as already said, what would be essential to make out a triable cause in an action for infringement of copyright. Those principles are well enunciated in Mansoob Haider., Mansoob Haider involved a temporary injunction application in a suit for infringement of copyright. The plaintiff was a professional film script writer whose father wrote scripts and dialogue for notable films. He is the author of the film script entitled \ONCE\, annexed to the plaint as Exhibit B. The plaintiff claims that the recently released film Dhoom 3 infringes his copyright in the script \ONCE\ and seeks an order that he be given credit in the titles of the film. The plaintiff claims that he had delivered this script to the first defendant's office. Three years later, the film Dhoom 3 was ..., The principles relating to what would be essential for the plaintiff to succeed in an action for infringement and, a fortiori, on a motion for temporary injunction pending suit, were laid down in Mansoob Haider: (a) Has the plaintiff proved that the defendant had access to his work? (b) On considering the two works, would an ordinary person inevitably conclude that the defendant had copied the plaintiff's work? (the subjective or intrinsic test); and (c) Is there a substantial and material overlapping or commonality of the original elements in the plaintiff's work? Even if a plaintiff fails on the first question, he may yet succeed on the second and third questions. But if he fails on the second question also, then he cannot succeed on the third alone., In the present case, the plaintiff fails on all three counts. His case is not even based on the second question, but only on the first and his own variation of the third: that the defendants had access and that there are common elements, even if these are not shown to be entirely unique. The plaintiff's variation on the third question is a sort of reductio ad absurdum: a vivisection of individual elements, a false and misleading juxtaposition of these, and, on that basis, to \round up the usual suspects\ and invite a finding of infringement. If these elements, however placed, are in support of an entirely different premise and storyline, there can be no copying, no piracy and no infringement., In my view, there is no case whatsoever for the grant of interim relief. The plaintiff has not made out a prima facie case. I am not convinced that the plaintiff has even been able to demonstrate that his work was given to, let alone seen by, the first defendant or any of its employees, officers or principal personnel. The two works are entirely different, each original in its own way. The film Dhoom 3 is not and cannot possibly be said to be a copy of the plaintiff's work \ONCE\. The material propositions and premise of the two works are entirely dissimilar. The mere use in both of certain well‑established and commonly used motifs, themes or elements, or even the perhaps coincidental placing of these in a certain juxtaposition gives the plaintiff no rights against the rival work., Therefore, the question that is required to be addressed is not about the burden of proof, or so to speak, the defendants' burden as the plaintiff claims, once they opposed the application for discovery to disclose the contents of the script that is the basis of the feature film, but whether the plaintiff has a triable case pleaded on the parameters of an action for infringement. It has already been held that there is absolutely vague pleading to show that the defendant could have had access to the copyrighted work. The Bombay High Court in Mansoob Haider, no doubt, has said that failing on the point of access, the plaintiff can still succeed, upon showing that on a comparison of the two works, an ordinary person would inevitably conclude that defendants had copied the plaintiff's work. There is some doubt whether access has to be necessarily proved, but assuming that it is required, it would still be necessary for the plaintiff to plead and show that an ordinary person, in comparing the copyrighted work and the feature film, would inevitably come to the conclusion that the latter is a copy of the former., It must be remarked here that before this Court, during the hearing, the Bombay High Court asked the defendants if they would produce the script on the foundation of which the feature film was produced. On instructions sought, the defendants said that they were willing and would produce it. They did so during the hearing on 26.08.2021. At the instance of the plaintiff, the defendants also filed an affidavit to the effect that the final script, on the foot whereof the feature film has been developed and produced, authored by Ranjeet Kapoor, is the one that is being passed on to the Court. However, the defendants declined to share the script with the plaintiff. The Court, therefore, compared the copyrighted script that was provided by the plaintiff and the script on which the feature film is founded, without sharing it with parties or the advantage of hearing learned counsel. The Court has nevertheless very carefully compared the two scripts. There is no doubt that they share a common theme. But it is equally true that the two are distinct and individual treatments of the same subject and theme developed by different individuals in their own way, as a result of their individual intellectual exertions. The two scripts prima facie are distinctly different treatments of the same theme. The similarity of the theme consists in the protagonist wandering onto a mysterious road, landing in distress amidst mysterious characters who are retired members of the legal profession: a judge, a prosecutor, a defence counsel and a hangman. The protagonist in both scripts has some wrongdoing, a crime to hide, which, in a game, these four men play about a mock court, he reveals when put on trial for the game's fun. In both themes, ultimately, he dies. This theme is found in the novel \A Dangerous Game\ authored by Friedrich Durrenmat. What is relevant is whether the plaintiff's treatment of the theme in his original way has been plagiarized. The law appears to be that infringement of a copyright is not about the novelty of the work, but about its originality. A very old theme may receive a different and distinctive creative development at the hands of different individuals. Both would be entitled to the copyrights of their originality. The commonality of the theme would not offer any cause of action for infringement., In this connection, reference may be made to the decision of the Bombay High Court in XYZ Films v. UTV Motion Pictures/UTV Software Communications Ltd. In the said decision, the test about what would constitute violation of a copyright was laid down thus: ..., The plaintiff's copyright does not subsist in any so‑called \central\ theme or concept. It subsists only in a particular realization of it; and if that is not copied, and the rival work is wholly different, there is no infringement. I must agree with this view that, generally speaking, there is no copyright in the central idea or theme of a story or a play. It subsists in a combination of situations, events and scenes which, working together, form the realization or expression of that idea or theme. If this combination is totally different and yields a completely different result, the taking of the idea or the theme is not copyright infringement. To my mind this would seem to apply almost exactly to the case at hand. As the Australian Court said, another author who materially varies the incidents and characters and materially changes the story is not an infringer of copyright., This question about what originality of the impugned work would mean in the context of a copyright violation was considered by the Rajasthan High Court in Fateh Singh Mehta (supra), where the principle was laid down: The originality which is required relates to the expression of the thought but the Act does not require that the expression must be in an original or novel form, but that the work must not be copied from another work; it should originate from the author. Thus it is well settled that originality in a work relates to the expression of thought. Much depends on the skill, labour, knowledge and the capacity to digest and utilise the new materials contributed by others in imparting to the product the quality and the character which those materials did not possess and which differentiate the product from the materials used. It was stated in the decision reported in AIR 1973 MP 261 that the law of copyright does not protect ideas but deals with the particular expression of ideas. It is always possible to arrive at the same result from independent sources. The compiler of a work in which absolute originality is of necessity excluded is entitled, without exposing himself to a charge of piracy, to make use of preceding work upon the subject, where he bestows such mental labour upon what he has taken, and subjects it to such revision and correction as to produce an original result. The question whether there has been an infringement of copyright depends on whether a colourable limitation has been made., Assuming that the plaintiff has a copyright in the copyrighted work, the law about what would possibly constitute a violation of that copyright has to be further examined for the purpose of this appeal, which asserts a right to a temporary injunction forbearing release of the feature film pending suit. In the opinion of this Court, it would be apposite to look to guidance in authority also where the point was whether the plaintiff acquired copyright in a literary work that he was entitled to protect. This is so because the criteria for the acquisition of copyright in a literary work would be the same as that in claiming a violation of it. The substance of the right is originality. In Macmillan and Company Limited v. K. and J. Cooper, a case that arose under the Copyright Act, 1911, the issue before the Privy Council was whether the plaintiff's work had sufficient originality to entitle it to a copyright. It was held that the word \original\ does not mean that the work must be the expression of original or inventive thought. Copyright Acts are not concerned with the origin of ideas but with the expression of thought; and in the case of a literary work, with the expression of thought in print or writing. The originality required relates to the expression of the thought; but the Act does not require that the expression be in an original or novel form, only that the work must not be copied from another work that it should originate from the author., The precise amount of knowledge, labour, judgment or literary skill or taste which the author of any book or other compilation must bestow upon its composition in order to acquire copyright in it within the meaning of the Copyright Act of 1911 cannot be defined in precise terms. In every case it must depend largely on the special facts of that case, and must in each case be very much a question of degree., This issue has engaged the attention of the Supreme Court of Canada in a relatively recent decision in Law Society of Upper Canada v. CCH Canadian Limited.
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The issue before the Supreme Court of Canada relating to violation of copyright arose in the context of provision of custom photocopying services by the Law Society of Upper Canada, a statutory non‑profit corporation of some standing. The law society maintained and operated a library equipped with reference and research material said to be the largest collection of legal material in Canada. The library provided a request‑based photocopy service for the law society members, judicial and other authorized researchers. Under its custom photocopy service, the desired photocopies of material were delivered in person or by mail to persons eligible to avail this facility of the library. The law society also maintained self‑service photocopiers for use by its patrons. Some publishers of law reports, photocopies whereof were permitted by the library to be taken by its patrons, commenced action for infringement of their copyright. This was broadly the contours of the action that ultimately travelled to the Supreme Court of Canada, where, amongst the several issues decided, one was the contemporary 2004 SCC OnLine Can SC 13 views of the Supreme Court of Canada about originality in the copyright law, albeit in the context of the Canadian Statute., The learned Chief Justice speaking for a unanimous Supreme Court of Canada held: Although many Canadian courts have adopted a rather low standard of originality, i.e., that of industriousness, more recently, some courts have begun to question whether this standard is appropriate. For example, the Federal Court of Appeal in Tele‑Direct, supra, held, at paragraph 29, that those cases which had adopted the sweat of the brow approach to originality should not be interpreted as concluding that labour, in and of itself, could ground a finding of originality. As Dary J.A. explained: If they did, I suggest that their approach was wrong and is irreconcilable with the standards of intellect and creativity that were expressly set out in NAFTA and endorsed in the 1993 amendments to the Copyright Act and that were already recognized in Anglo‑Canadian law. See also Dutile Inc. v. Automobile Protection Assn., [2000] 4 F.C. 195 (C.A.), at paragraph 8, adopting this passage., The United States Supreme Court explicitly rejected the sweat of the brow approach to originality in Feist, supra. In so doing, O'Connor J. explained at page 353 that, in her view, the sweat of the brow approach was not consistent with the underlying tenets of copyright law: The sweat of the brow doctrine had numerous flaws, the most glaring being that it extended copyright protection in a compilation beyond selection and arrangement, the compiler's original contributions to the facts themselves. Under the doctrine, the only defense to infringement was independent creation. A subsequent compiler was not entitled to take one word of information previously published, but rather had to independently work out the matter for himself, so as to arrive at the same result from the same common sources of information. Sweat of the brow courts thereby eschewed the most fundamental axiom of copyright law that no one may copyright facts or ideas. As the Supreme Court of Canada recognized in Compo, supra, at page 367, U.S. copyright cases may not be easily transferable to Canada given the key differences in the copyright concepts in Canadian and American copyright legislation. This said, in Canada, as in the United States, copyright protection does not extend to facts or ideas but is limited to the expression of ideas. As such, O'Connor J.'s concerns about the sweat of the brow doctrine's improper extension of copyright over facts also resonate in Canada. I would not, however, go as far as O'Connor J. in requiring that a work possess a minimal degree of creativity to be considered original. See Feist, supra, at pages 345., As mentioned, in Th berge, supra, the Supreme Court of Canada stated that the purpose of copyright law was to balance the public interest in promoting the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator. When courts adopt a standard of originality requiring only that something be more than a mere copy or that someone simply show industriousness to ground copyright in a work, they tip the scale in favour of the author's or creator's rights, at the loss of society's interest in maintaining a robust public domain that could help foster future creative innovation. By contrast, when an author must exercise skill and judgment to ground originality in a work, there is a safeguard against the author being overcompensated for his or her work. This helps ensure that there is room for the public domain to flourish as others are able to produce new works by building on the ideas and information contained in the works of others., Requiring that an original work be the product of an exercise of skill and judgment is a workable yet fair standard. The sweat of the brow approach to originality is too low a standard. It shifts the balance of copyright protection too far in favour of the owner's rights, and fails to allow copyright to protect the public's interest in maximizing the production and dissemination of intellectual works. On the other hand, the creativity standard of originality is too high. A creativity standard implies that something must be novel or non‑obvious, concepts more properly associated with patent law than copyright law. By contrast, a standard requiring the exercise of skill and judgment in the production of a work avoids these difficulties and provides a workable and appropriate standard for copyright protection that is consistent with the policy objectives of the Copyright Act., For these reasons, I conclude that an original work under the Copyright Act is one that originates from an author and is not copied from another work. That alone, however, is not sufficient to find that something is original. In addition, an original work must be the product of an author's exercise of skill and judgment. The exercise of skill and judgment required to produce the work must not be so trivial that it could be characterized as a purely mechanical exercise. While creative works will by definition be original and covered by copyright, creativity is not required to make a work original., The Canadian decision shows that the standard of originality, where the impugned work would not be regarded as infringement, ought to be an exercise of skill and judgment by the author, where the changes that he affects are not so trivial as may be regarded as purely mechanical. This standard would seem to give leeway to an author to write about a theme, that is the subject matter of the work of which infringement is claimed without risk, provided he puts in his intellectual skill, learning and judgment, in his own way, and not merely doing a cosmetic change over., Reference in this context must be made to a very old decision by the Circuit Court, D. Massachusetts in Greene v. Bishop, where the Court, faced with the same issue, held: Copying is not confined to literal repetition, but includes, also, the various modes in which the matter of any publication may be adopted, imitated, or transferred, with more or less colourable alterations to disguise the piracy. In all such cases, says Mr. Curtis (Curtis, Copyr. 253), the main question is whether the author of the work alleged to be a piracy has resorted to the original sources alike open to him and to all waiters, or whether he has adopted and used the plan of the work which it is alleged he has infringed, without resorting to the other sources from which he had a right to borrow., In India the law relating to copyright in its historical perspective finds reference in the decision of the Madhya Pradesh High Court in M/s. Mishra Bandhu Karyalaya and others v. Shivratanlal Koshal. The brief history of this legislation finds mention in paragraph 11 of the report, which reads: We are, however, concerned with the state of things prevalent prior to 21 January 1958, when the Copyright Act, 1957 (Act No. 14 of 1957), was brought into force. The law then in force was the Imperial Copyright Act, 1911 (1 and 2 Geo. V, Ch. 46) which, with slight modification, was made applicable to this Country by the Indian Copyright Act (Act No. 3 of 1914). The Imperial Copyright Act, 1911, either as operating proprio vigore or as applied by the Indian Copyright Act, 1914, was a law in force in the territory of India immediately before the commencement of the Constitution, and it, therefore, continued to be in force as the law of the land by virtue of Article 372(1) of the Constitution., We consider the following passage in Copinger and Skone James on Copyright, 9th Edition, pages 428‑9, as describing the position correctly. The United Kingdom Copyright Act, 1911, extended to India as part of His Majesty's dominions, but certain modifications were introduced by the Indian Copyright Act, 1914 (No. 3 of 1914). The effect of Section 18 of the Indian Independence Act, 1947 (10 & 11 Geo. VI, C. 30) appeared to be that copyright protection both in India and with respect to works originating there remained unchanged., The point under consideration was dealt with by the Division Bench of the Madhya Pradesh High Court in M/s. Mishra Bandhu Karyalaya, thus: It would thus appear that a copy is that which comes so near the original as to suggest the original to the mind of the reader. The dictum of Kekewich, J., in 1908‑1 Ch 519 has throughout been followed and applied in India. See Sitanath Basak v. Mohini Mohan Singh, 34 Cal WN 540 (AIR 1931 Cal 233), Mohendra Chandra Nath Ghosh v. Emperor, AIR 1928 Cal 359, Kartar Singh v. Ladha Singh, AIR 1934 Lah 777 and Gopal Das v. Jagannath Prasad, ILR (1938) All 370 (AIR 1938 All 266). Applying these principles to the present case, we are unable to find any material showing that the Purva Madhyamik Ank Ganeet published by the defendants was a copy or a colourful imitation of the Saral Middle School Ank Ganit written by the author. The laws of copyright do not protect ideas, but they deal with the particular expression of ideas. It is always possible to arrive at the same result from independent sources. The rule appears to be settled that the compiler of a work in which absolute originality is of necessity excluded is entitled, without exposing himself to a charge of piracy, to make use of preceding works upon the subject, where he bestows such mental labour upon what he has taken, and subjects it to such revision and correction as to produce an original result. See, Spiers v. Brown, 1858‑6 WR 352, Reade v. Lacy, (1861) 128 RR 508 and Hotten v. Arthur, (1863) 136 RR 249, cited by Bamet and Ganga Nath, JJ., in ILR (1938) All 370 (AIR 1938 All 266)., The decision of the Division Bench of the Madhya Pradesh High Court in M/s. Mishra Bandhu Karyalaya was overruled by a Full Bench of that Court in K.C. Bokadia and another v. Dinesh Chandra Dubey on a different point without disturbing the exposition of the law that is under consideration here., The distinction between what would constitute infringement of copyright on account of the statutory changes in the Copyright Act, 1957, varying the earlier provisions of the Imperial Copyright Act, 1911 or the Indian Copyright Act, 1914 fell for consideration of a Division Bench of the Madras High Court in The Daily Calendar Supplying Bureau, Sivakasi v. The United Concern. Learned Counsel Sri Sankara Ayyar, appearing for the appellant, drew our attention to a difference between the earlier Copyright Act and the Act of 1957. In section 35(1)(c) of the former Act infringing when applied to a copy of a work, in which copyright subsists, has been defined as any copy including any colourable imitation, made, or imported in contravention of the provisions of this Act. It was urged before us that the new Act did not refer to colourable imitation as constituting an infringement. It was contended that any person could now make a colourable imitation of a painting or other artistic work without being held guilty of infringement of the copyright. The earlier Act had already defined what infringement of a copyright meant in section 2(1) but in another place of the same Act in section 35(1) the meaning of the word infringement was again explained. What Act XIV of 1957 did apparently was to bring together the definition of infringement in one place in section 14(1). The English Act of 1956 appears to have also left out the term colourable imitation of an artistic work as constituting an element of infringement. Copinger observes in his Law of Copyright ninth edition at page 147: Section 35(1) of the Act of 1911 in defining infringing copy employed the expression colourable imitation but this expression does not appear in the Act of 1956. The question therefore appears to turn solely upon the interpretation of the expression reproduction and the definition of that word in section 48(1) of the Act of 1956 does not assist, as this definition merely includes certain special forms of reproduction. It is apprehended, however, that the word reproduction in the Act of 1956 has the same sense as the word copy has acquired in copyright law., After the deletion of the words colourable imitation in the Act of 1957, to find out the meaning of infringement one has therefore necessarily to interpret the words reproduce the work in any material form. Section 14(2) of the Act includes also the reproduction of a substantial part of the work, for the purposes of infringement of copyright. The word reproduce is a word of ordinary‑popular usage. However, the Shorter Oxford English Dictionary refers to the progressive evolution of its meaning: the action or process of bringing again before the mind in the same form; the action or process of repeating in a copy; a copy or counterpart; a copy of a picture or other work of art by means of engraving or some other process and finally a representation in some form or by some means of the essential features of a thing. It therefore appears quite likely that when Act XIV of 1957 repealed the earlier enactments and consolidated the law of copyright in India, it adopted the procedure followed in the English Act of 1956 of using the word reproduction both of the work itself or a substantial part of it, as a sufficient indication of the scope of infringement and dropped the term colourable imitation as superfluous or redundant., There was a wholesome consideration of the issue by the Supreme Court of India in R.G. Anand v. Delux Films and others, where what would constitute infringement of a copyright led to elaborate guidance about it. In R.G. Anand, it was held: Thus, on a careful consideration and elucidation of the various authorities and the case law on the subject discussed above, the following propositions emerge: 1. There can be no copyright in an idea, subject‑matter, themes, plots or historical or legendary facts and violation of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyrighted work. 2. Where the same idea is being developed in a different manner, it is manifest that the source being common, similarities are bound to occur. In such a case the courts should determine whether the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. If the defendant's work is nothing but a literal imitation of the copyrighted work with some variations here and there it would amount to violation of the copyright. In other words, to be actionable the copy must be a substantial and material one which at once leads to the conclusion that the defendant is guilty of an act of piracy. 3. One of the surest and the safest test to determine whether there has been a violation of copyright is to see if the reader, spectator or the viewer after having read or seen both works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original. 4. Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises. 5. Where however apart from the similarities appearing in the two works there are also material and broad dissimilarities which negate the intention to copy the original and the coincidences appearing in the two works are clearly incidental no infringement of the copyright comes into existence. 6. As a violation of copyright amounts to an act of piracy it must be proved by clear and cogent evidence after applying the various tests laid down by the case‑law discussed above. 7. Where however the question is of the violation of the copyright of a stage play by a film producer or a director the task of the plaintiff becomes more difficult to prove piracy. It is manifest that unlike a stage play a film has a much broader prospective, wider field and a bigger background where the defendants can by introducing a variety of incidents give a colour and complexion different from the manner in which the copyrighted work has expressed the idea. Even so, if the viewer after seeing the film gets a totality of impression that the film is by and large a copy of the original play, violation of the copyright may be said to be proved., Here, the comparison between the two scripts which the Supreme Court of India has undertaken albeit prima facie, shows that after the principal theme that is common to both scripts, there are a host of differences in the script leading to the feature film. The protagonist, Mehra, in the script relating to the feature film, suddenly takes a diversion while proceeding to Delhi, when he comes across a road sign, where the diversion that leads to the shortcut indicates a distance to destination of 210 km, instead of 285 km on the main highway. The scene is in a hilly terrain and the car is caught on a road full of snow. It is held up on account of a tree being uprooted and falling onto the road, causing the car to suddenly stop and bump against the snow., By contrast, in the copyrighted version, the theme stands with a welcome to the protagonist in a club along with his newly‑wedded wife (his second wife). There is a long course of events involving the protagonist Rohit and his newly‑wedded wife Tanya, until the time that he leaves to inspect a work site in between a holiday, with his wife. As he reaches the outskirts of the city, he comes across a mysterious petrol pump where he meets a very scary pump attendant. The highway that he then takes to his work site is mysterious and has no traffic. His car suddenly goes out of order, with steam rushing from somewhere under the bonnet. It does not restart. He walks on foot and finds himself in the midst of a forest. He returns back to the car. After some time, he gets out again, moves into the forest and meets another mysterious man, who ultimately takes him to a mysterious‑looking dwarf, who has an equally mysterious‑looking wife. The dwarf takes him to the house of a retired High Court Chief Justice, where he comes across four men from the legal profession in similar roles as in the script, giving rise to the feature film. The four men involved behave far more mysteriously than those in the feature film/script. They act and behave in a much different manner. The manner in which they accuse Rohit of a crime and mock‑trial him is quite different and distinctive prima facie. Rohit dies ultimately in a car accident at the same place where his first wife had died., Noticeably, in the script giving rise to the feature film, the four men of the legal profession and Mehra's introduction to them is in a much different fashion. The story leading to the mock trial is developed in its own individual way, much different from the copyrighted version. In the script that is the foundation of the feature film, there is a completely different end, where Mehra is sentenced to death by the Judge in the mock trial. He was made to believe that he would indeed be hanged. During the trial he goes into great distress and turns violent. During the trial and at the end of it, he utters many things, about which the men from the legal profession tell him that the camera connected to a recorder has captured crimes, to which Mehra has confessed during the mock trial and the incriminating facts that he had uttered. He is threatened with being put on trial before a real court. He then tries to break away using his revolver. Mehra ultimately dies while running away falling into a chasm, and cannot be saved despite efforts by the four men who mocked his trial., There is, thus, prima facie a materially different and distinctive development and treatment of the same theme in both the scripts. In the prima facie opinion of the Supreme Court of India, there is, apart from the fundamentals of the basic theme that appear to have come from a common source, no such distinctive feature in the copyrighted version that have been prima facie plagiarized. It must be remarked here that whatever comparison has been done is not, in any manner, a final expression of opinion on merits about the distinctive similarities or the dissimilarities. That is something that has to await trial, where wholesome evidence would now be led. All the remarks here are limited to the decision of the temporary injunction matter and nothing more., Now, a further issue that is required to be examined is what would happen if at the hearing, the plaintiff were to ultimately succeed. Would damages alone be recompense enough? Relief is sought by way of a decree for rendition of accounts of the advance amount received by the defendants from the distribution companies, television channels, OTT platforms, television networks by selling distribution rights/ streaming rights of the feature film, infringing the plaintiff's copyright. The decree would entitle the plaintiff, if he succeeds, to proportionate proceeds on account, as may be determined that the film earns. But, apart from that, if the copyright is ultimately held to be infringed at the trial, monetary compensation may not be recompense enough. It is therefore ordered that if the plaintiff succeeds, all further displays of the feature film shall have to carry an acknowledgment, suitably displayed, that the movie is based on the copyrighted work, which is the plaintiff's authorship. Also, the trial of the suit is to be expedited. Since the learned District Judge is hearing the suit himself, he will proceed with the suit, fixing one date every week and endeavour to conclude the trial within four months., Subject to the above directions, the impugned order does not deserve to be disturbed. The appeal is disposed of in terms of the aforesaid orders. Costs in this appeal shall abide the event in the suit. Let this order be communicated to the District Judge, Ghaziabad by the Registrar (Compliance).
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D.B. Criminal Death Reference No. 1/2019 State, through Public Prosecutor, Petitioner versus Atmaram, son of Norang Ram, belonging to Lakhara caste, resident of Anoopshahar, Police Station Bhadra, District Hanumangarh; Omprakash, Anoopshahar, Hanumangarh; Liladhar, Anoopshahar, Hanumangarh; Sharwan, Anoopshahar, Hanumangarh. Respondents connected with D.B. Criminal Appeal No. 208/2019: Aatma Ram, son of Shri Norangram, about 38 years old, Lakhara caste, resident of Anoop Shahar, Police Station Bhadra, District Hanumangarh; Omprakash, son of Shri Norangram, about 27 years old, Lakhara caste, resident of Anoop Shahar, Police Station Bhadra, District Hanumangarh; Leeladhar, son of Shri Norangram, about 50 years old, Lakhara caste, resident of Anoop Shahar, Police Station Bhadra, District Hanumangarh; Sharvan Kumar, son of Shri Leeladhar, about 20 years old, Lakhara caste, resident of Anoop Shahar, Police Station Bhadra, District Hanumangarh., Petitioners versus State, through Public Prosecutor. For Petitioners: Mr. Moti Singh Rajpurohit. For Respondents: Mr. R. R. Chhaparwal, Public Prosecutor; Mr. Suresh Kumbhat; Mr. Sheetal Kumbhat. Judgment pronouncement date: 01/04/2022. Judgment reserved on: 23/02/2022., D.B. Criminal Death Reference No. 1/2019 was instituted upon being forwarded by the learned Additional Sessions Judge, Bhadra, District Hanumangarh, under Section 366 of the Criminal Procedure Code for confirmation of the death sentence awarded to the accused‑respondents Aatma Ram, Omprakash, Leeladhar and Sharvan Kumar by judgment dated 01/06/2019 in Sessions Case No. 14/2014. D.B. Criminal Appeal No. 208/2019 was filed by these accused persons assailing the same judgment. The trial court convicted and sentenced them as follows: Aatma Ram – Section 302 read with Section 149 of the Indian Penal Code, death penalty with a fine of Rs 50,000 and, in default of payment, an additional rigorous imprisonment of one year; Omprakash – Section 147 IPC, two years simple imprisonment and a fine of Rs 1,000, and, in default, fifteen days additional simple imprisonment; Leeladhar – Section 148 IPC, three years simple imprisonment and a fine of Rs 5,000, and, in default, three months additional simple imprisonment; Sharvan Kumar – Section 452 IPC, seven years simple imprisonment and a fine of Rs 10,000, and, in default, six months additional simple imprisonment; additional convictions under Section 447 IPC (three months simple imprisonment, fine Rs 500, and seven days additional simple imprisonment) and Section 323 read with Section 149 IPC (one year simple imprisonment, fine Rs 1,000, and fifteen days additional simple imprisonment)., The present proceeding is the second round of litigation. Earlier, the trial court convicted and sentenced the accused in the same terms by judgment dated 03/11/2017, which was challenged by filing D.B. Criminal Appeal No. 33/2018. That appeal was allowed by judgment dated 13/12/2018 and the matter was remanded to the trial court for a de novo trial. The court observed a significant flaw: statements of material prosecution witnesses had been recorded without securing the presence of the accused in the dock, contrary to the mandate of Section 273 of the Criminal Procedure Code. After remand, those witnesses were re‑examined, the accused’s statements were recorded afresh under Section 313 of the Criminal Procedure Code, arguments were heard, and the trial court passed the judgment dated 01/06/2019 convicting and sentencing the appellants as above., Brief facts relevant for disposal of the reference and the appeal are as follows. Mr. Vikrant Sharma, Public Witness 12, then Station House Officer, Police Station Gogamedi, recorded a Parcha Bayan (Exhibit P/1) of Kailashchand, son of Bhanwar Lal, aged 16, resident of Anoopshahar, Police Station Bhadra, District Hanumangarh, at the Community Health Center, Bhadra on 13/10/2013 at 09:35 a.m. The statement alleged that family members of Kailash and the accused – Aatma Ram, Leeladhar, Omprakash, Pawan (sons of Naurang Ram Lakhara), Sharvan (son of Leeladhar) and Rakesh (son of Aatma Ram) – were embroiled in an ongoing land dispute. On the morning of 13/10/2013, at about 05:30–06:00 a.m., Kailash, his father Bhanwar Lal and brother Pankaj were harvesting Gwar crop in their field when the accused Leeladhar, Aatma Ram, Omprakash, Pawan, Sharvan, Rakesh and two to three unknown persons arrived on a tractor armed with lathis and axes. Omprakash held an axe; the others carried lathis, some fitted with iron heads. They assaulted the field, killing Bhanwar Lal and Pankaj on the spot, and assaulted Kailash, pouring a strong irritant liquid into his eyes, causing total loss of vision. The assailants then fled., Later, Ex‑Sarpanch Chandu Ram Varma, Kan Singh (son of Sabal Singh), Illiyas (son of Chiragdan) and Surendra Singh (son of Bhanwar Singh) took Kailash to his house, where they reported that the assailants had also attacked the residence, beating grandfather Moman Ram and sister Chandrakala with lathis and axes; the grandfather died and Chandrakala was injured. Mother Smt. Sushila locked herself inside a room, fearing death. Chandu Ram, Kan Singh, Illiyas and Surendra took Kailash, Chandrakala and Moman Ram to Bhadra Hospital. Kailash sustained injuries to his left hand, left arm and both legs and lost vision in both eyes. His right thumb impression was taken on the Parcha Bayan because his left thumb was bandaged. The statement was recorded in the presence of Chandu Ram Varma, who attested it. The Parcha Bayan was forwarded to Police Station Bhadra with Ramkaran, FC, where FIR No. 493/2013 (Exhibit P/57) was registered for offences punishable under Sections 302, 307, 452, 447, 323, 147, 148, 149 of the Indian Penal Code. Investigation was assigned to Mr. Rampratap, Public Witness 18, Station House Officer, Police Station Bhadra., During the investigation, Rampratap inspected the field of Moman Ram and prepared a site‑inspection memo (Exhibits P/9 and P/9‑A). The dead bodies of Bhanwar Lal and Pankaj were lifted and sent to the Community Health Center, Bhadra. Blood‑stained soil, control soil and a black polythene bag found at the spot were lifted and sealed. Requests were made to the CHC for post‑mortem examinations of Bhanwar Lal, Pankaj Kumar, Moman Ram and Kailash. Kailash and Chandrakala were referred to a higher centre and shifted to a hospital at Sirsa. Kailash died on the same day while undergoing treatment at a private hospital in Sirsa; his body was brought back to Bhadra for autopsy. The medical board issued post‑mortem reports of Moman Ram (aged 75, Exhibit P/43), Bhanwar Lal (aged 46, Exhibit P/44), Pankaj Kumar (aged 18, Exhibit P/45) and Kailash (aged 16, Exhibit P/46). Chandrakala was medically examined and a Medical Leave Certificate (Exhibit P/42) was issued. The dead bodies were handed over to relative Yashwant for cremation. The accused appellants were arrested and their informations were recorded under Section 27 of the Evidence Act. The investigating officer claimed to have effected recoveries; the sequence of arrests, informations and recoveries is summarised in the chart below., Arrest and recovery details: 1. Aatma Ram – arrested on 03/2013 at 03:50 p.m.; recovery of a lathi (stick) and a barccha (Exhibit P/60); one barccha and a 3 ft 2 in lathi (Exhibit P/19); blue powder thrown in the deceased’s eyes and a plastic bag (Exhibit P/64); one empty polythene bag recovered from Moman Ram’s farm (Exhibit P/13); farm tractor parked on the farm (Exhibit P/65); farm tractor (Exhibit P/18); clothes worn by the accused at the time of incident (Exhibit P/15). 2. Shravan Kumar – arrested on 03/2013 at 04:37 p.m.; recovery of the place where the lathi had been hidden (Exhibit P/62); blood‑covered lathi of length 5 ft 8 in (Exhibit P/21); clothes worn by the accused (Exhibit P/17). 3. Liladhar – arrested on 03/2013 at 05:35 p.m.; recovery of the place where the lathi had been hidden (Exhibit P/61); worn clothes and lathi (Exhibit P/20). 4. Omprakash – arrested on 03/2013 at 04:22 p.m.; recovery of the place where the bamboo lathi and theli (bag) had been hidden (Exhibit P/63); bamboo lathi and cloth theli (bag) (Exhibit P/22). The clothes of the deceased as well as the accused were recovered and preserved for serological examination. Statements of material witnesses were recorded under Section 161 of the Criminal Procedure Code. Medical papers of Chandrakala and Kailash were procured from Aastha Multispeciality Hospital, Sirsa., After concluding investigation, a charge‑sheet was filed against the appellants for offences punishable under Sections 147, 148, 452, 447, 302 read with Section 149, and 323 read with Section 149 of the Indian Penal Code. Two accused, Pawan Kumar and Rakesh, could not be apprehended and remain at large; consequently, the investigation remains open with respect to them. The case was committed to the Court of Additional Sessions Judge, Bhadra, District Hanumangarh, where charges were framed. The accused denied the charges and claimed trial. The prosecution examined 23 witnesses, exhibited 73 documents and 27 articles. The accused were questioned under Section 313 of the Criminal Procedure Code and denied the prosecution allegations, claiming innocence. No oral evidence was led in defence. The trial court convicted and sentenced the appellants to death by judgment dated 03/11/2017 and Reference No. 2/2017 was registered for confirmation of the death sentence. The accused preferred Appeal No. 33/2018; this court decided both matters by judgment dated 13/12/2018, turning down the reference and allowing the appeal on the ground of a procedural lacuna. The case was remanded for re‑examination of 12 prosecution witnesses and a fresh judgment. After de novo proceedings, the 12 witnesses were examined afresh, the accused’s statements were again recorded under Section 313, and the trial court again convicted and sentenced the appellants as above by judgment dated 01/06/2019. Reference No. 2/2017 and Appeal No. 33/2018 arise out of that judgment., Counsel for the appellant, Mr. Moti Singh Rajpurohit, did not dispute the fact of homicidal killings of the four victims but argued that the Parcha Bayan (Exhibit P/1) is a fabricated and unreliable document because (a) it was recorded in gross violation of Rule 6.22 and 6.23 of the Rajasthan Police Rules; (b) Mr. Vikrant Sharma, Public Witness 12, was Station House Officer of Police Station Gogamedi and had no occasion to go to Bhadra Hospital to record Kailash’s statement, nor was he authorized by any senior police official; (c) the dying declaration lacks endorsement of a medical jurist confirming Kailash’s fitness to give such a statement; (d) the attesting witness Chandu Ram (Public Witness 1) admitted in cross‑examination that he was not present when the Parcha Bayan was recorded and only signed it after purchasing medicines; (e) the statement contains a vivid description of an incident that took place in Moman Ram’s house, which Kailash could not have known as he was taken to the field and then to an ambulance; (f) the fitness certificate (Exhibit P/71) was not filed with the charge‑sheet, and the carbon copy was treated as primary evidence without the original being produced, contrary to the procedure under Section 311 of the Criminal Procedure Code., The appellant further urged that the recoveries effected by the investigating officer are fabricated. The weapons were allegedly recovered from Aatma Ram’s house on 16/10/2013, yet the investigating officer, Mr. Rampratap, visited the house on 13/10/2013, the day of the incident, making it implausible that the weapons could have gone unnoticed. Attesting witness Chandu Ram admitted that he signed all seizure memoranda between 13 and 15 October 2013, and Surendra Singh (Public Witness 3) confirmed that the Circle Inspector entered the house on 13/10/2013 at 05:00 p.m., seized lathis, barccha, axe and blood‑stained clothes, and obtained signatures. The defence argued that the recoveries are dubious because the articles were seized within a day or two of the incident and later shown as recovered on 16/10/2013, suggesting planting of evidence., The defence contended that the Forensic Science Laboratory report cannot be read in evidence because the prosecution failed to provide convincing evidence of the safekeeping of the recovered articles. The weapons and blood‑stained articles were forwarded to the Forensic Science Laboratory on 29/10/2015, more than two years after the incident. Witness Gopal Singh Dhaka (Public Witness 21) testified that the articles had been sent to the laboratory about 10–15 months earlier, but no evidence was produced to explain their fate after submission, breaching the chain of custody., The appellant submitted that even if the prosecution case is accepted, conviction under Section 302 read with Section 149 of the Indian Penal Code is unjustified because only four persons have been charge‑sheeted, and therefore an unlawful assembly within the meaning of Section 143 of the Indian Penal Code was not formed. Consequently, Section 149 IPC is inapplicable and the appellants deserve acquittal., The appellant further argued that once the Parcha Bayan (Exhibit P/1) is discarded, the entire prosecution case becomes doubtful. The statement of Chandrakala (Public Witness 2) is not reliable; she allegedly improved her evidence to corroborate the Parcha Bayan, and therefore her testimony should also be discarded. Without the Parcha Bayan and Chandrakala’s statement, there is no evidence linking the appellants to the alleged crime, rendering the conviction unsustainable., Regarding confirmation of the death sentence, the appellant contended that the case does not fall within the \rarest of rare\ category required to justify capital punishment. The trial court did not summon any report on the conduct of the accused in prison, which is mandatory as per Supreme Court jurisprudence. The appellants have been in custody for more than nine years without any adverse prison conduct report. All adult male members of the family have been incarcerated for almost ten years, leaving the women and children in abject poverty, having abandoned their homes and surviving by labour work. Even if conviction is affirmed, the case does not warrant the death penalty., The learned Public Prosecutor and counsel for the complainant opposed the appellant’s submissions, asserting that the first informant, Kailash, was a 16‑year‑old boy who, along with his father and brother, was brutally assaulted in the field. They argued that a dying person does not tell a lie, and therefore the Parcha Bayan (Exhibit P/1) is a valid dying declaration under Section 32 of the Evidence Act. They explained that the investigation was hampered because two accused, Rakesh and Pawan, were absconding, and the investigating officer could not collect the original fitness certificate, resulting in the carbon copy (Exhibit P/71) being filed with an application under Section 311 of the Criminal Procedure Code. The trial court accepted this application, and the fitness certificate was presented and proved during the investigating officer’s evidence without objection. Dr. Deepak Gindoda (Public Witness 16) was recalled to give additional evidence, and his supplementary statement on 12/07/2016 fortified the carbon copy of the certificate with his endorsement. The objection to the admissibility of the certificate was first raised during the de novo proceedings on 05/02/2019, and the trial court treated the carbon copy as primary evidence in accordance with Explanation (2) of Section 62 of the Evidence Act., The prosecution further emphasized that the graphic description in the Parcha Bayan (Exhibit P/1) regarding the brutal assault, the use of lathis and axes, and the pouring of a corrosive substance into Kailash’s eyes, as well as the killing of four male members of the family aged between 16 and 75 years, demonstrates extreme cruelty. They highlighted Chandrakala’s testimony that the accused, after the field assault, threatened to kill Moman Ram and the female members, which amounts to an extra‑judicial confession under Section 6 of the Evidence Act. They rejected the appellant’s claim that Section 149 IPC is inapplicable, noting that two accused remain at large, making the total number of assailants more than five, thereby satisfying the requirement of an unlawful assembly., Having considered the submissions, the Court re‑appreciated the evidence. The Medical Jurist’s injury reports for Ms. Chandrakala and Kailash and the post‑mortem reports of the four deceased persons were examined. The gist of the injuries noted by Dr. Deepak Gindoda is summarised below., Injury Report of Kailash (dated 13‑10‑2013, Exhibit P/41): 1. Lacerated wound with visual deformity, 4 cm × 2 cm × 0.5 cm on the middle one‑third of the right leg (anterior aspect) caused by blunt force; 2. Lacerated wound, 3 cm × 1.5 cm × 0.5 cm on the middle one‑third of the left leg (anterior aspect) caused by blunt force; 3. Bruise, 6 cm × 2 cm on the lateral aspect of the upper one‑third of the left arm caused by blunt force; 4. Abrasion and mild swelling, 3 cm × 0.6 cm between index finger and thumb on the dorsal aspect of the left hand caused by blunt force; 5. Swelling of the right arm, no external injury seen, caused by blunt force; 6. Lacerated wound, 3 cm × 2 cm × 0.5 cm on the dorsal aspect of the great toe of the left foot with mild swelling, caused by blunt force; 7. Bruise and mild swelling, 4.5 cm × 3 cm on the left temporal area of the head caused by blunt force; 8. Bluish conjunctiva and opaque cornea with bluish discoloration of the orbital and periorbital area, impairing vision in both eyes, caused by a chemical irritant., Injury Report of Chandrakala (dated 13‑10‑2013, Exhibit P/42): 1. Lacerated wound with visual deformity, 3 cm × 1 cm × 2.5 cm on the left frontal area of the forehead caused by blunt force; 2. Pain over the abdomen, no external injury seen, caused by blunt force; 3. Pain at the left elbow joint, no external injury seen, caused by blunt force; 4. Abrasion and mild swelling, 3 cm × 0.6 cm between index finger and thumb on the dorsal aspect of the left hand caused by blunt force. Post‑mortem findings for Moman Ram (aged 75) included lacerated wounds on both parietal areas of the head with underlying fractures and subdural haematomas.
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Lacerated wound measuring 3 cm by 1.5 cm extending to bone was found in the left occipital area of the head, associated with an underlying fracture of the left occipital bone. Abrasion measuring 3 cm by 1 cm was seen at the root of the nose. Lacerated wound measuring 3 cm by 1 cm by 0.5 cm was present on the dorsal aspect of the right hand. Bruise measuring 5 cm by 3 cm was observed on the posterior lateral aspect of the right arm. Four lacerated wounds were noted on the anterior aspect of the right leg: dimensions 2 cm by 1 cm, 5 cm by 1.5 cm, and 2 cm by 1.5 cm, each extending to bone, with crushing of all muscles, dried clotted blood, and underlying fractures of both right leg bones. A lacerated wound measuring 2 cm by 1 cm extending to bone was present on the left leg, with crushing of muscles, dried clotted blood, and an underlying fracture of the left fibula bone. Visual deformity of the left foot was noted, and dissection revealed fractures of the second and third bones of the left foot. An abrasion measuring 3 cm by 1 cm was observed on the posterior aspect of the left forearm. All injuries were determined to be antemortem., Lacerated wound measuring 6 cm by 4 cm extending to bone was found in the left occipital area of the head, with fracture of the left occipital bone and an underlying subdural haematoma measuring 3.5 cm by 2.5 cm of partial thickness. Lacerated wound measuring 8 cm by 4 cm extending to bone was present in the left parietal area of the head, with fracture of the left parietal bone and an underlying subdural haematoma measuring 5 cm by 3 cm with 7 mm partial thickness. Lacerated wound measuring 3 cm by 2 cm by 0.5 cm was located at the apex of the head. Bruise measuring 6 cm by 4 cm was seen on the right shoulder. Lacerated wound measuring 2.5 cm by 1.5 cm by 0.5 cm was observed between the index finger and thumb on the dorsal aspect of the left hand. Lacerated wound measuring 3 cm by 2 cm extending to bone was present on the left forearm, associated with crushing of muscles, dried clotted blood, and fracture of the lower one‑third of the ulna and radius. Lacerated wound measuring 3 cm by 2 cm extending to bone was seen on the lateral aspect of the right arm, with dried clotted blood and fracture of the upper one‑third of the humerus. Three lacerated wounds on the anterior aspect of the right leg measured 2 cm by 1 cm, 2.5 cm by 1.5 cm, and 3 cm by 2 cm, each extending to bone, with fractures of the tibia and fibula. Six lacerated wounds on the anterior aspect of the left leg, each approximately 2.5 cm by 1.5 cm extending to bone, were noted with dried clotted blood, crushing of muscles, and fracture of the tibia. Abrasion measuring 3 cm by 1 cm was seen on the left side of the chest. Abrasion measuring 3 cm by 1.5 cm was observed on the middle of the forehead. Three bruises measuring 5 cm by 4 cm, 4 cm by 3 cm, and 6 cm by 3 cm were found on the upper and middle back region. Abrasion measuring 3 cm by 2 cm was present on the lateral aspect of the left thigh. All injuries were determined to be antemortem., The Medical Board opined that the cause of death was shock and haemorrhage due to multiple injuries to the body, including the vital organ brain. All injuries were antemortem. Date and time of death: 13-10-2013 at 01:40 PM. Age: 46 years., Lacerated wound measuring 6 cm by 4 cm extending to bone was found in the left occipital area of the head, with fracture of the left occipital bone and an underlying subdural haematoma measuring 3 cm by 2.5 cm of partial thickness 5 mm. Abrasion measuring 3 cm by 1 cm was present on the posterior aspect of the right forearm, with obvious deformity and, on dissection, fractures of both bones of the right forearm. Two lacerated wounds on the left forearm measured 3 cm by 1.5 cm and 4 cm by 2 cm, each extending to bone, with crushing of muscles and fracture of both bones. A lacerated wound measuring 3 cm by 2 cm extending to bone was located in the lower one‑third of the left arm, with crushing of muscles and fracture of the left humerus. Four lacerated wounds on the anterior aspect of the right leg measured 3 cm by 1.5 cm, 3.5 cm by 2 cm, 3.5 cm by 1.5 cm, and 4 cm by 2 cm, each extending to bone, with crushing of muscles, dried clotted blood, and fracture of both bones of the right leg. Three lacerated wounds on the anterior aspect of the left leg measured 2 cm by 1.5 cm, 3 cm by 1.5 cm, and 4 cm by 2 cm, each extending to bone, with crushing of muscles, dried clotted blood, and fracture of the tibia of the left leg. All injuries were determined to be antemortem. The Medical Board opined that the cause of death was shock and haemorrhage due to multiple injuries to the body, including the brain. Date and time of death: 13-10-2013 at 01:40 PM. Age: 18 years., Bruise measuring 4.5 cm by 3.0 cm was observed over the left temporal region of the head; on dissection a subdural haematoma of 4 cm by 3.0 cm thickness was present in the parietal region. Lacerated wound measuring 4 cm by 2 cm by 0.5 cm was located on the middle one‑third of the right leg, with fracture of both leg bones and crushed muscle. Lacerated wound measuring 3 cm by 1.5 cm by 0.5 cm was present on the middle one‑third of the left leg, anterior aspect, with crushing of muscle. Bruise measuring 6 cm by 2 cm was found on the left arm, upper one‑third and over the lateral aspect. Lacerated wound measuring 3 cm by 2 cm by 0.5 cm was observed on the dorsal aspect of the left foot. Abrasion measuring 3 cm by 0.5 cm was present between the index finger and thumb on the dorsal aspect of the left hand. All injuries were determined to be antemortem. The Medical Board opined that the cause of death was haemorrhagic shock due to multiple injuries to the body, including the brain. Date and time of death: 14-10-2013 at 09:30 AM. Age: 16 years., The forensic examination was taken for forensic science laboratory analysis and handed over to the accompanying police officer of Police Station Bhadra. A perusal of the injuries clearly establishes that the death of the victims was homicidal in nature and that the accused causing such injuries were aware that the injuries could lead to death., The appellant’s counsel challenged the impugned judgment on the ground of admissibility and reliability of the Parcha Bayan (Exhibit P/1). The offence was committed in Anoopshahar town, which falls within the jurisdiction of Police Station Bhadra. Mr. Vikrant Sharma (Petitioner Witness 12), who recorded the Parcha Bayan, was posted as Station House Officer of Police Station Gogamedi on the date of the incident. The prosecution has not produced any evidence to show that Mr. Sharma was authorized to record the Parcha Bayan, even though the offence did not occur within the jurisdiction of the police station where he was posted. This is significant because Mr. Rampratap (Petitioner Witness 18), Station House Officer of Police Station Bhadra, had already received information about the incident and had reached the crime scene before the Parcha Bayan was recorded., The learned public prosecutor attempted to explain the discrepancy by stating that the incident was gruesome and that the Superintendent of Police, Hanumangarh, directed Mr. Rampratap to be at the crime scene while Mr. Sharma was sent to the hospital to take stock of the injured persons. However, the statements of Mr. Sharma and Mr. Rampratap make it clear that neither provided satisfactory evidence that Mr. Sharma was authorized to go to the hospital. Moreover, Mr. Rampratap did not explain why he himself did not proceed to the hospital or authorize any police officer posted at Bhadra to go there. The Roznamcha entry (Exhibit P/72) indicates that Mr. Ramniwas, Assistant Sub‑Inspector, and foot constables Mr. Ramkaran, Mr. Amarchand and Mr. Surajbhan were sent to the Government Hospital, Bhadra, but none of these officials were examined by the prosecution., The Parcha Bayan does not bear any endorsement of the Medical Jurist regarding the fitness, both mental and physical, of Mr. Kailash to give the statement. Mr. Sharma neither made such an endorsement nor recorded any satisfaction on the document that the victim was fit to give a lengthy statement., The prosecution filed an application dated 15-12-2015 claiming that Mr. Sharma had obtained a certificate from the Medical Jurist concerning Kailash’s fitness to give the statement. The document, proved as Exhibit P/71, was seriously questioned by the defence but was not produced by Mr. Sharma during his testimony. When cross‑examined, Mr. Sharma admitted that he did not record the presence of doctors in the Parcha Bayan because they were busy treating the injured, and he did not make any application to the magistrate to record the statement. He requested Kailash to sign the document, but Kailash could not do so, and only his thumb impression was appended., The requisition Exhibit P/71 (carbon copy) was purportedly presented to the Medical Jurist by Mr. Ramniwas, Assistant Sub‑Inspector, but the endorsement bears the signature of the Station House Officer of Police Station Bhadra. If this seal is ignored, the prosecution has given no explanation why Mr. Ramniwas was not examined to prove the document. The Medical Jurist, Doctor Deepak Gindoda (Petitioner Witness 16), stated that the police neither recorded his presence in the Parcha Bayan nor asked him to endorse it after it was recorded., Mr. Rampratap exhibited a carbon copy of Exhibit P/71, claiming that the original was handed over to him by Mr. Sharma. The prosecution did not attempt to procure the original document from the Government Hospital under Section 91 of the Code of Criminal Procedure read with Section 165 of the Evidence Act. The application filed on 15-12-2015 under Section 311 of the Code of Criminal Procedure sought to recall Doctor Gindoda as a witness to prove the fitness certificate (Exhibit P/71A) and contained a prayer to lead secondary evidence of the document. The trial court allowed the marking of the exhibit when Mr. Rampratap was examined on 20-06-2016. No objection was raised at that stage, but the defence later objected during the de novo trial on 05-02-2019. The trial court noted that the carbon copy, prepared in the same uniform mechanical process, qualifies as primary evidence under Section 62 Explanation (2) of the Evidence Act., Mr. Sharma claimed that the Parcha Bayan was attested by Chandu Ram Verma (Petitioner Witness 1). However, Chandu Ram, on oath, stated that he was not present beside Kailash when the police recorded the statement. Chandu Ram said he learned of the incident from Daata Ram (Petitioner Witness 8), who told him that the assailants were Aatma Ram, Leeladhar, Om Prakash, Pawan, Rakesh and Shrawan. Daata Ram testified that he saw the assault on Moman Ram and Chandrakala in the residential premises. When Chandu Ram reached the victims’ house, Chandrakala told him that six accused persons had assaulted Moman Ram and herself and had threatened that they had killed her father and two brothers in the field., Chandu Ram, together with Kan Singh, Illiyas and Surendra, took a vehicle to the field where they found Bhanwarlal and Pankaj dead and Kailash badly injured, his eyes having been injected with a substance that turned them blue. They placed Kailash in the vehicle and brought him to the village. A 108 ambulance arrived with police vehicles; Kailash and Moman Ram were boarded onto the ambulance and taken to Bhadra Hospital, while Chandrakala was taken in a separate vehicle. The witness stated that the police recorded Kailash’s statement. He was present beside the victim for a short time and went out to fetch medicines. After returning with medicines, Kailash was asked to attest the Parcha Bayan. The witness therefore was not present when the statement was recorded, making the attestation doubtful., Chandrakala, examined as Petitioner Witness 2, attempted to improve her testimony by claiming that Kailash gave a statement to the police narrating the entire incident. However, her earlier police statement (Exhibit D/1) contains no such disclosure, and the fitness certificate (Exhibit P/71) indicates that the Medical Jurist considered Chandrakala unfit to give a statement. She admitted that when she reached the hospital, Kailash’s bandages had been applied and he was conscious. The police asked her whether she could give a statement; she refused, saying she was deeply perturbed. Kailash told her that their father and brother had died. Surendra Singh (Petitioner Witness 3) testified that while he was with Kailash, the boy did not say anything to his mother or sister Chandrakala, and Kailash was unaware of the deaths of Bhanwarlal and Pankaj., Rule 6.22 of the Police Rules provides that a dying declaration should, whenever possible, be recorded by a magistrate, and the person making the declaration should be examined by a medical officer to ascertain mental capacity. If a magistrate is unavailable, the declaration may be recorded in the presence of two or more reliable witnesses not connected with the police, or, if that is not possible, in the presence of two or more police officers. A dying declaration made to a police officer should be signed by the declarant under Section 162 of the Code of Criminal Procedure. The Parcha Bayan does not comply with these requirements and therefore should be discarded. Excluding the Parcha Bayan leaves no direct evidence regarding the incident in the field, but substantial direct and circumstantial evidence remains on record., The testimony of Chandrakala establishes her presence at the residence where the second part of the incident occurred. Her narration of the sequence of events, including the threats made by the assailants, constitutes res gestae under Section 6 of the Indian Evidence Act and is admissible. Although the incident occurred in two parts at different times and places, the events are connected with the main fact in issue and form part of the same transaction, thereby supporting the prosecution’s case.
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The facts of the case at hand are identical with illustration (a) of Section 6 of the Evidence Act, which reads as follows: 6. Relevancy of facts forming part of same transaction.- Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places. Illustration (a): A is accused of the murder of B by beating him. Whatever was said or done by A or B or the standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact., Chandrakala is an injured witness and, although her version regarding the Parcha Bayan of Kailash cannot be believed as a sheer improvement, her testimony to the extent of the insinuation made by the accused in her presence that they had killed her three family members in the field and their subsequent offensive acts causing injuries to Chandrakala and Moman Ram at their residence is unimpeachable. In addition to Chandrakala (Witness 2), the prosecution also examined Dharmpal (Witness 4), who stated in his sworn testimony that he heard fervent cries coming from towards the house of Moman Ram and proceeded there. He saw that the accused appellants and the two absconding accused, Pawan and Rakesh, were trying to force their way inside the house of Moman Ram, hitting the doors with lathis and hurling insinuations. The witness tried to pacify the accused persons; they did not relent and threatened him as well. The accused forced open the gate of Moman Ram's house, went inside and assaulted Moman Ram and Chandrakala. A little while later, the assailants went towards their homes. The witness mustered courage and went to the house of Moman Ram, where he saw Chandrakala and her mother crying, while Moman Ram was lying on the floor and writhing in pain. On seeing the gory scene, he became terrified and went back to his home. Nothing significant was elicited in the cross‑examination of the witness. Chandrakala also corroborated that Dharmpal had seen the incident but fled from the spot out of fear., Hence, we have no hesitation in holding that, by virtue of the statements of Chandrakala (Witness 3) and Dharmpal (Witness 4), the prosecution has proved beyond all doubt that the accused appellants and the two absconding accused were the assailants who assaulted the victims Bhanwar Lal, Pankaj and Kailash in the agricultural field and Chandrakala and Moman Ram at the residential premises., Medical Evidence: The prosecution examined Dr. Deepak Gindoda (Witness 16), who proved the injury reports and post‑mortem reports as described supra. Though the learned defence counsel did not advance any serious arguments regarding the availability of ample medical evidence to bring home the charge of murder and attempt to murder, we have carefully re‑appreciated the evidence of the medical jurist Mr. Deepak Gindoda (Witness 16) and find that the medical evidence establishes beyond all doubt that four deceased persons, namely Bhanwar Lal, Pankaj, Moman Ram and Kailash, were inflicted multiple injuries by blunt and sharp weapons on vital body parts. The resultant injuries were very grave and the cumulative effect of all injuries was sufficient in the ordinary nature to cause death of the four victims. Thus, we have no hesitation in holding that the necessary ingredients required to bring home the charge for the offence punishable under Section 302 of the Indian Penal Code are proved beyond all doubt., Charge for the offence punishable under Section 149 of the Indian Penal Code: It was the fervent contention of the learned counsel Mr. Moti Singh Rajpurohit that the trial court committed gross illegality by invoking Section 149 of the Indian Penal Code for convicting the accused appellants for the offences punishable under Sections 302 and 323 of the Indian Penal Code. He asserted that only four persons have been convicted by the trial court and that the mandatory requirement of an assembly of five persons, as per Section 141 of the Indian Penal Code, is not satisfied. This argument has no merit. Witness Chandrakala (Witness 3) has categorically stated that six assailants, i.e., the four appellants and Rakesh and Pawan, launched an assault on the victims. Investigation concerning accused Rakesh and Pawan is still open because these two assailants are absconding and at large. Thus, without any doubt the prosecution has given unimpeachable evidence establishing active participation of more than five persons in the assault, and the argument regarding non‑applicability of Section 149 of the Indian Penal Code on account of the number of accused persons being less than five is totally frivolous and is turned down., Unfair investigation, lacunae in investigation and unreliable recoveries: Mr. Moti Singh, learned counsel representing the appellants, questioned the bonafides of the investigating agency primarily on the ground that the entire investigation was influenced by Yashwant (Witness 6), who, being closely related to the family of the accused, was working as a Police Constable. We are to some extent convinced by this argument. The Investigating Officer Mr. Rampratap (Witness 18) acted in a most casual manner while conducting investigation of this case. He claimed to have effected numerous recoveries during the course of investigation but failed to give proper evidence to prove their sanctity. The date on which recoveries were shown to have been effected, i.e., 16‑10‑2013, is not convincing as the recoveries were definitely made earlier. He also claims to have collected the carbon copy of the requisition (Exhibit P/71) from Ramniwas, but the same was not filed along with the charge‑sheet. No effort was made by the prosecution to examine Ramniwas, ASI, to prove the requisition (Exhibit P/71). The prosecution tried to link the incriminating recoveries effected at the instance of the accused through the testimony of Investigating Officer Rampratap (Witness 18). The incident took place in the year 2013. Ram Pratap, Sub‑Inspector, Police Station Bhadra (Witness 18), did not give any plausible evidence as to when the recovered articles/weapons were deposited in the Malkhana. He gave a bald and unconvincing statement that the seized articles were deposited in Malkhana in a sealed condition. The testimony of Head Constable Sahab Singh (Witness 20) shows that he received articles on 13‑10‑2013, 15‑10‑2013 and 16‑10‑2013. These Malkhana articles were surprisingly forwarded to the Forensic Science Laboratory as late as 29‑10‑2015. The Constable admitted in cross‑examination that the samples had been sent to the Forensic Science Laboratory earlier, but they were received back with objections, which he could not elaborate. Moreover, when the Malkhana articles were received back from the Forensic Science Laboratory with objections, he was not posted as Malkhana In‑charge at the Police Station. The Malkhana Register proved by the prosecution was of the year 2015, but the Malkhana registers of the years 2013 and 2014 were not exhibited in evidence. Thus, it is clear that the prosecution has failed to lead proper evidence to prove the sanctity and safekeeping of the recovered articles. A perusal of the entries made in the Malkhana register (Exhibit P/89) convinces us that there has been serious bungling in the manner in which the Malkhana articles were handled by the concerned police officials. Consequently, the Forensic Science Laboratory report (Exhibit P/68) loses significance and cannot be read in evidence against the accused persons., Plea of alibi: Regarding the defence theory of alibi for the accused Leeladhar and Sharwan Kumar, learned counsel Mr. Moti Singh advanced fervent arguments that these two accused persons were not present at the spot and were arrested from Gharsana, where they were living to pursue their respective occupations. However, this argument is, on its face, nothing but an afterthought. On a perusal of the statements of Chandrakala (Witness 2) and Dharmpal (Witness 4), it becomes apparent that both witnesses gave wholesome testimony regarding the presence and participation of both accused persons in the incident. The defence did not give any suggestion to either of these two witnesses regarding the plea of alibi taken by the accused. Even the statement of Sharwan recorded under Section 313 of the Code of Criminal Procedure shows that he did not utter a word that he was living at Gharsana at the time of the incident. The accused Leeladhar and Aatma Ram took a plea of being at Gharsana at the time of the incident; however, this plea is nothing but an afterthought, first raised during cross‑examination of the Investigating Officer after many years. It is a well‑settled proposition of law that a plea of alibi is a very weak plea and must be proved by leading unimpeachable evidence. Other than a bald suggestion to the Investigating Officer and a weak belated plea in the statement under Section 313 of the Code of Criminal Procedure, the defence did not lead any evidence whatsoever to prove this apparently frivolous plea of alibi. Hence, in face of the positive convincing evidence of witnesses Chandrakala (Witness 2) and Dharmpal (Witness 4), the cooked‑up plea of alibi has no legs to stand and is fit to be discarded., Consequently, we are of the firm opinion that the prosecution has proved by unimpeachable reliable testimony the fact of the assault made by the four accused appellants and the two absconding accused, Rakesh and Pawan, in the field where Bhanwar Lal and Pankaj were murdered and Kailash was seriously injured and later died, and in the residential premises where Moman Ram was murdered and Chandrakala sustained numerous injuries. Even if the Parcha Bayan of Kailash is excluded as unreliable, the prosecution has been able to bring home the guilt of the accused appellants by leading cogent, convincing and unimpeachable evidence of injured witness Chandrakala (Witness 2) and independent witness Dharmpal (Witness 4). As an upshot of the above discussion, we have no hesitation in holding that the accused appellants are liable to be and were rightly convicted by the trial court for the offences punishable under Sections 302, 149, 147, 148, 452, 447 of the Indian Penal Code., Having held so, we now consider the case regarding affirmation of the penalty of death sentence imposed by the trial court upon the accused appellants. The Hon'ble Supreme Court of India considered various facets of capital punishment to the accused in the case of Chhannu Lal Verma v. State of Chhattisgarh (All India Reporter 2019 Supreme Court 243) wherein the entire concept of death penalty was discussed in detail. The Hon'ble Supreme Court evaluated numerous cases in which the capital punishment awarded to the accused was affirmed as well as those cases in which death penalty was commuted to life sentence. It was held: In Bachan Singh (supra) while upholding the constitutional validity of death penalty in India, it was held that under Section 354(3) of the Code of Criminal Procedure, imprisonment for life is the rule and death sentence is the exception. The Court emphasized the need for principled sentencing without completely trampling the discretionary powers of the judges. It also held that the special reasons required to be recorded while awarding death sentence mean exceptional reasons founded on the exceptionally grave circumstances of the particular case relating to the crime as well as the criminal. Aggravating circumstances include: (a) murder committed after previous planning and involving extreme brutality; (b) murder involving exceptional depravity; (c) murder of a member of the armed forces or police or any public servant while on duty or in consequence of lawful discharge of duty; (d) murder of a person acting in lawful discharge of duty under Section 43 of the Code of Criminal Procedure, 1973, or who had rendered assistance to a Magistrate or police officer under Sections 37 and 129 of the said Code. Mitigating circumstances include: (1) offence committed under extreme mental or emotional disturbance; (2) age of the accused; (3) probability that the accused would not commit further violent acts; (4) probability that the accused can be reformed and rehabilitated; (5) belief that the accused was morally justified; (6) duress or domination by another person; (7) mental defect impairing capacity to appreciate criminality., The Court also clarified that while determining the punishment, due regard must be given to both the crime and the criminal. The aggravating and mitigating circumstances must be viewed from the perspective of both. The Court noted that the list of aggravating and mitigating circumstances is not exhaustive and that the scope of mitigating factors in death penalty cases must receive a liberal and expansive construction by the courts. Paragraph 209 of the Supreme Court judgment states that numerous other circumstances justify a lighter sentence, as there are counter‑vailing circumstances of aggravation. The Court emphasized that the scope and concept of mitigating factors in death‑penalty cases must receive a liberal and expansive construction in accord with the sentencing policy of Section 354(3). Judges should never be bloodthirsty; hanging of murderers has never been a good practice. Statistics furnished by the Union of India show that courts have inflicted the extreme penalty with extreme infrequency, reflecting caution and compassion in exercising sentencing discretion., In Machhi Singh v. State of Punjab (1983) 3 Supreme Court Cases 470, the Court summarized the findings in Bachan Singh (supra) and held that the extreme penalty of death need not be inflicted except in the gravest cases of extreme culpability. Before opting for death penalty, the circumstances of the offender must also be taken into consideration along with the circumstances of the crime. Life imprisonment is the rule and death sentence an exception. Death sentence must be imposed only when life imprisonment appears altogether inadequate, having regard to the relevant circumstances of the crime, and only if the option of life imprisonment cannot be conscientiously exercised. A balance sheet of aggravating and mitigating circumstances must be drawn up, giving full weightage to mitigating circumstances and striking a just balance before the option is exercised., In Shankar Kisanrao Khade v. State of Maharashtra (2013) 5 Supreme Court Cases 546, the Court held that the tests to be applied while awarding death sentence are the crime test, the criminal test and the rarest‑of‑rare test, not a balancing test. The crime test must be fully satisfied (100%) and the criminal test must show no mitigating circumstance (0%). If any mitigating circumstance favours the accused, such as lack of intention, possibility of reformation, young age, or no menace to society, the criminal test may favour the accused to avoid capital punishment. Even if both tests are satisfied, the rarest‑of‑rare test, which is society‑centric rather than judge‑centric, must be applied, considering factors such as societal abhorrence, extreme indignation and antipathy to certain types of crimes., In our opinion, the High Court has erroneously confirmed the death penalty without correctly applying the law laid down in Bachan Singh (supra), Machhi Singh (supra), Santosh Bariyar (supra) and Shankar Kisanrao Khade (supra). The decision to impose the highest punishment of death sentence in this case does not fulfil the test of rarest‑of‑rare where the alternative option is unquestionably foreclosed. The questions laid down in paragraph 39 of Machhi Singh (supra) have not been answered. No evidence as to the uncommon nature of the offence or the improbability of reformation or rehabilitation of the appellant has been adduced. Bachan Singh (supra) unambiguously sets out that death penalty shall be awarded only in the rarest‑of‑rare cases where life imprisonment would be wholly inadequate or futile owing to the nature of the crime and the circumstances relating to the criminal. Whether the person is capable of reformation and rehabilitation should also be taken into consideration. As laid down in Shankar Kisanrao Khade (supra), whether the person would be a threat to society or whether not granting death penalty would send a wrong message to society are additional factors to be looked at. The High Court failed to consider the aggravating and mitigating circumstances regarding the criminal, such as the appellant's lack of previous criminal record apart from an acquitted false implication under Section 376 of the Indian Penal Code, which should have been treated as an important mitigating circumstance.
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In the past four decades or so, the Supreme Court of India has been consistently echoing its concern on the constitutional ethos on value and dignity of life, when it said in Bachan Singh (supra) that extreme depravity (paragraph 201), it is the duty of the State to adduce evidence that there is no probability that the accused can be reformed (paragraph 206), liberal and expansive connotation (paragraph 209), alternative option is unquestionably foreclosed (paragraph 209) humane concern (paragraph 209), real and abiding concern for dignity of human life (paragraph 209), in Machhi Singh (supra) that gravest case of extreme culpability (paragraph 38), only when life appears to be an altogether inadequate punishment (paragraph 28), mitigating circumstances should be given full weightage (paragraph 38), in Santosh Bariyar (supra) that probability that the accused can be reformed and rehabilitated (paragraph 57), the rarest of rare case is a negative precept (paragraph 58), death is an exceptionally narrow opening (paragraph 58), extraordinary burden on the Supreme Court of India to impose death (paragraph 60), maximum weightage to mitigating circumstances and yet no alternative except death (paragraph 39), highest standards of judicial rigor and thoroughness (paragraph 61), and in Shankar Kisanrao Khade (supra) that possibility of reformation, young age of the accused, not a menace to the society, no previous track record (paragraph 52) etc. These factors have not received due consideration by either the High Court or the Trial Court., The appeal has been pending before the Supreme Court of India for the past four years. Since the appellant has been in jail, we wanted to know whether there was any attempt on his part for reformation. The superintendent of the jail has given a certificate that his conduct in jail has been good. Thus, there is a clear indication that despite having lost all hope, yet no frustration has set on the appellant. On the contrary, there was a conscious effort on his part to lead a good life for the remaining period. A convict is sent to jail with the hope and expectation that he would make amends and get reformed. That there is such a positive change on a death row convict, in our view, should also weigh with the Supreme Court of India while taking a decision as to whether the alternative option is unquestionably foreclosed. As held by the Constitution Bench in Bachan Singh (supra) it was the duty of the State to prove by evidence that the convict cannot be reformed or rehabilitated. That information not having been furnished by the State at the relevant time, the information now furnished by the State becomes all the more relevant. The standard set by the rarest of rare test in Bachan Singh (supra) is a high standard. The conduct of the convict in prison cannot be lost sight of. The fact that the prisoner has displayed good behaviour in prison certainly goes on to show that he is not beyond reform., In the matter of probability and possibility of reform of a criminal, we do not find that a proper psychological or psychiatric evaluation is done. Without the assistance of such a psychological or psychiatric assessment and evaluation it would not be proper to hold that there is no possibility or probability of reform. The State has to bear in mind this important aspect while proving by evidence that the convict cannot be reformed or rehabilitated., Another aspect that has been overlooked by the High Court is the procedural impropriety of not having a separate hearing for sentencing at the stage of trial. A bifurcated hearing for conviction and sentencing was a necessary condition laid down in Santosh Bariyar (supra). By conducting the hearing for sentencing on the same day, the Trial Court has failed to provide necessary time to the appellant to furnish evidence relevant to sentencing and mitigation., For the abovementioned reasons, we hold that the imposition of death sentence was not the only option and hence the same needs to be commuted to imprisonment for life. The accused appellants have suffered incarceration in prison since the year 2013. True it is that the conduct of the accused while launching the pre‑planned assault on the three victims in the field and on Moman Ram and Chandrakala at their residence was heinous as well as brutal. However, it is a universally acceptable proposition that reformative theory has to be given precedence over capital punishment, which should be considered a last resort. In the present case, the accused appellants have remained in custody for nearly nine years. For affirming the death sentence, the Supreme Court of India would be required to collect material regarding conduct of the accused while in prison to assess whether they have displayed behaviour indicating signs of reformation. Award of extreme penalty of death without undertaking such exercise is impermissible as held by the Honble Supreme Court while laying down the guidelines reproduced supra. Though the Trial Court has undertaken a superficial exercise of trying to assess the mitigating and aggravating circumstances, ex facie we are of the view that the case at hand does not satisfy the requirements for awarding the extreme death penalty., As a consequence, we hereby turn down Reference No. 1/2019 and partly accept Appeal No. 208/2019. Conviction of the accused appellants as recorded by the Trial Court for the offences punishable under Sections 302/149, 147, 148, 452, 447 and 323/149 of the Indian Penal Code is confirmed, but the reference for confirmation of death sentence is turned down. However, the conduct of the accused, who attacked the entire family of Mr Moman Ram with clear intention of eliminating them owing to the long‑standing land dispute, requires appropriate directions on the aspect of sentence of imprisonment. If the accused are permitted to roam at large without suffering imprisonment for life in its literal meaning, they would in all likelihood eliminate the remaining family members as well if set at liberty. Hence, the capital punishment awarded to the accused appellants by the Trial Court is commuted to life imprisonment, which shall enure till the natural life of the accused appellants without any possibility of permanent parole or premature release. The fine imposed and the default sentence awarded by the Trial Court on each count is maintained. The appeal of the accused appellants is partly allowed in these terms. The record be returned to the Trial Court.
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This file relates to reconsideration of the proposal for appointment of Shri Saurabh Kirpal, Advocate as Judge of the Delhi High Court. The recommendation unanimously made by the Collegium of the Delhi High Court on 13 October 2017 and approved by the Supreme Court Collegium on 11 November 2021 has been referred back to us on 25 November 2022 for reconsideration in light of the observations made in the file. The proposal has been pending for over five years., From the letters of the Research and Analysis Wing dated 11 April 2019 and 18 March 2021, it appears that there are two objections to the recommendation which was made by the Collegium of the Delhi High Court on 11 November 2021 approving the name of Shri Saurabh Kirpal namely: the partner of Shri Saurabh Kirpal is a Swiss National, and he is in an intimate relationship and is open about his sexual orientation., The letter of the Law Minister dated 01 April 2021 states that though homosexuality stands decriminalised in India, nonetheless same‑sex marriage still remains bereft of recognition either in codified statutory law or uncodified personal law in India. Moreover, it has been stated that the candidate’s ardent involvement and passionate attachment to the cause of gay‑rights would not rule out the possibility of bias and prejudice., Both the objections are dealt with below. As regards the first objection, the two communications of the Research and Analysis Wing do not reflect any apprehension in regard to the individual conduct or behaviour of the partner of Shri Saurabh Kirpal having a bearing on national security. There is no reason to presuppose that the partner of the candidate, who is a Swiss National, would be inimically disposed to our country, since the country of his origin is a friendly nation. Many persons in high positions including present and past holders of constitutional offices have and have had spouses who are foreign nationals. Hence, as a matter of principle, there can be no objection to the candidature of Shri Saurabh Kirpal on the ground that his partner is a foreign national., As regards the second objection, it needs to be noted that the decisions of the Constitution Bench of the Supreme Court of India have established the constitutional position that every individual is entitled to maintain their own dignity and individuality, based on sexual orientation. The fact that Mr Saurabh Kirpal has been open about his orientation is a matter which goes to his credit. As a prospective candidate for judgeship, he has not been surreptitious about his orientation. In view of the constitutionally recognized rights which the candidate espouses, it would be manifestly contrary to the constitutional principles laid down by the Supreme Court of India to reject his candidature on that ground., Shri Saurabh Kirpal possesses competence, integrity and intellect. His appointment will add value to the Bench of the Delhi High Court and provide inclusion and diversity. His conduct and behaviour have been above board. It may have been advisable for the candidate not to speak to the press in regard to the reasons which may have weighed in the recommendations of the Collegium being sent back for reconsideration. However, this aspect should not be considered as a negative feature, particularly since the name has remained pending for over five years. The overwhelmingly positive aspects of the candidature of Shri Saurabh Kirpal must, therefore, weigh in the balance., In this backdrop, the Collegium resolves to reiterate its recommendation dated 11 November 2021 for appointment of Shri Saurabh Kirpal as a Judge of the Delhi High Court which needs to be processed expeditiously.
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Anjali Guru Sanjana Jaan, Age: 42 years, Occupation: Household, Resident of Bhadli Bk., Taluka and District Jalgaon. The State of Maharashtra, through its Principal Secretary, Rural Development Department, Mantralaya, Mumbai. The State Election Commission, Amarprem Building, Near Gokhale College, Shimpoli Road, Mumbai. The District Collector, Jalgaon. The Tahasildar, Jalgaon. The Returning Officer, Elections to Grampanchayat, Bhadli Bk., Taluka and District Jalgaon. Shri A.P. Bhandari, Advocate for the petitioner. Shri S.B. Pulkundwar, Advocate General of the State for respondent Nos. 1, 3 and 4. Shri A.B. Kadethankar, Advocate for respondent Nos. 2 and 5. Date: 2 January 2021., Oral Judgment: The matter was not on the Board. It was mentioned and taken on the Production Board. The rule was made returnable forthwith and heard finally by the consent of the parties., The petitioner, undisputedly a transgender, is aggrieved by the rejection of her nomination form by the Returning Officer by virtue of the impugned order dated 31 December 2020. The petitioner has decided to choose the female gender and therefore tendered her nomination form for contesting the election from the ward reserved for women‑general category. The reason for rejecting the nomination form is that the petitioner is a transgender. It is stated that there is no reservation for the transgender category in the present Village Panchayat elections., The petitioner relies upon Section 4(2) of the Transgender Persons (Protection of Rights) Act, 2019 and also places reliance upon the judgment delivered by the Honourable Supreme Court of India in the matter of National Legal Services Authority versus Union of India and others, AIR 2014. The learned Advocate General of the State and the learned advocate representing the State Election Commission submit that they would not argue beyond the provisions of law and would not make submissions contrary to the law laid down by the Honourable Supreme Court of India in National Legal Services Authority., The learned advocate for the petitioner makes a categorical statement, on instructions, that this is the first occasion wherein the petitioner has opted for a right to a self‑perceived gender identity and has selected the female gender for all purposes during her lifetime. He submits that the petitioner, henceforth, shall not switch over to the male gender under any circumstances at any time in the future., The Honourable Supreme Court of India has dealt with the issue of the rights of transgender persons in National Legal Services Authority (supra) and has observed in paragraphs 53, 61, 66, 67 and 71 to 75 as follows: 53. Indian law, on the whole, only recognizes the paradigm of binary genders of male and female, based on a person’s sex assigned at birth, which permits a gender system, including the law relating to marriage, adoption, inheritance, succession and taxation and welfare legislations. The Court exhaustively referred to various articles contained in the Universal Declaration of Human Rights, 1948, the International Covenant on Economic, Social and Cultural Rights, 1966, the International Covenant on Civil and Political Rights, 1966 as well as the Yogyakarta Principles. Reference was also made to legislations enacted in other countries dealing with rights of persons of the transgender community. Unfortunately, there is no legislation in this country dealing with the rights of the transgender community. Due to the absence of suitable legislation protecting the rights of the members of the transgender community, they are facing discrimination in various areas and hence the necessity to follow the International Conventions to which India is a party and to give due respect to other non‑binding International Conventions and principles., Article 21 has been incorporated to safeguard those rights and a constitutional court cannot be a mute spectator when those rights are violated, but is expected to safeguard those rights knowing the pulse and feeling of that community, though a minority, especially when their rights have gained universal recognition and acceptance. 61. Article 14 of the Constitution of India states that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Equality includes the full and equal enjoyment of all rights and freedoms. Right to equality has been declared as the basic feature of the Constitution and treatment of equals as unequals or unequals as equals will be violative of the basic structure of the Constitution. Article 14 also ensures equal protection and hence a positive obligation on the State to ensure equal protection of laws by bringing in necessary social and economic changes, so that everyone including transgender persons may enjoy equal protection of laws and nobody is denied such protection. Article 14 does not restrict the word ‘person’ and its application only to male or female. Hijras/transgender persons who are neither male nor female fall within the expression ‘person’ and, hence, are entitled to legal protection of laws in all spheres of State activity, including employment, healthcare, education as well as equal civil and citizenship rights, as enjoyed by any other citizen of this country. 66. Articles 15 and 16 prohibit discrimination on the basis of sex, recognizing that sex discrimination is a historical fact and needs to be addressed. The Constitution makers gave emphasis to the fundamental right against sex discrimination so as to prevent direct or indirect attitudes to treat people differently for the reason of not being in conformity with stereotypical generalisations of binary genders. Both gender and biological attributes constitute distinct components of sex. Biological characteristics include genitals, chromosomes and secondary sexual features, but gender attributes include one’s self‑image, the deep psychological or emotional sense of sexual identity and character. Discrimination on the ground of sex under Articles 15 and 16 therefore includes discrimination on the ground of gender identity. The expression ‘sex’ used in Articles 15 and 16 is not just limited to biological sex of male or female, but intended to include people who consider themselves to be neither male nor female. 67. Transgender persons have been systematically denied the rights under Article 15(2) that they should not be subjected to any disability, liability, restriction or condition in regard to access to public places. They have also not been afforded special provisions envisaged under Article 15(4) for the advancement of the socially and educationally backward classes (SEBC) of citizens, which they are, and hence legally entitled and eligible to get the benefits of SEBC. The State is bound to take affirmative action for their advancement so that the injustice done to them for centuries could be remedied. Transgender persons are also entitled to enjoy economic, social, cultural and political rights without discrimination, because forms of discrimination on the ground of gender are violative of fundamental freedoms and human rights. They have also been denied rights under Article 16(2) and discriminated against in respect of employment or office under the State on the ground of sex. They are also entitled to reservation in the matter of appointment, as envisaged under Article 16(4) of the Constitution. The State is bound to take affirmative action to give them due representation in public services. 71. The principles referred to above clearly indicate that the freedom of expression guaranteed under Article 19(1)(a) includes the freedom to express one’s chosen gender identity through varied ways and means by way of expression, speech, mannerism, clothing etc. 72. Gender identity, therefore, lies at the core of one’s personal identity, gender expression and presentation and, therefore, it will have to be protected under Article 19(1)(a) of the Constitution of India. A transgender’s personality could be expressed by the transgender’s behaviour and presentation. The State cannot prohibit, restrict or interfere with a transgender’s expression of such personality, which reflects that inherent personality. Often the State and its authorities, either due to ignorance or otherwise, fail to digest the innate character and identity of such persons. We therefore hold that values of privacy, self‑identity, autonomy and personal integrity are fundamental rights guaranteed to members of the transgender community under Article 19(1)(a) of the Constitution of India and the State is bound to protect and recognise those rights., 73. Article 21 of the Constitution of India reads as follows: ‘Protection of life and personal liberty – No person shall be deprived of his life or personal liberty except according to procedure established by law.’ Article 21 is the heart and soul of the Indian Constitution, which speaks of the rights to life and personal liberty. Right to life is one of the basic fundamental rights and not even the State has the authority to violate or take away that right. Article 21 encompasses all aspects of life which make a person’s life meaningful. Article 21 protects the dignity of human life, one’s personal autonomy, one’s right to privacy, etc. Right to dignity has been recognised as an essential part of the right to life and accrues to all persons on account of being human. In Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 1 SCC 608 (paras 7 and 8), this Supreme Court of India held that the right to dignity forms an essential part of our constitutional culture which seeks to ensure the full development and evolution of persons and includes expressing oneself in diverse forms, freely moving about and mixing and mingling with fellow human beings. 74. Recognition of one’s gender identity lies at the heart of the fundamental right to dignity. Gender, as already indicated, constitutes the core of one’s sense of being as well as an integral part of a person’s identity. Legal recognition of gender identity is, therefore, part of the right to dignity and freedom guaranteed under our Constitution. 75. Article 21, as already indicated, guarantees the protection of personal autonomy of an individual. In Anuj Garg v. Hotel Association of India (2008) 3 SCC 1 (paras 34‑35), this Supreme Court of India held that personal autonomy includes both the negative right of not to be subject to interference by others and the positive right of individuals to make decisions about their life, to express themselves and to choose which activities to take part in. Self‑determination of gender is an integral part of personal autonomy and self‑expression and falls within the realm of personal liberty guaranteed under Article 21 of the Constitution of India., The Honourable Supreme Court of India concluded in paragraphs 131 to 135 as follows: 131. The rule of law is not merely public order. The rule of law is social justice based on public order. The law exists to ensure proper social life. Social life, however, is not a goal in itself but a means to allow the individual to live in dignity and develop himself. Human beings and human rights underlie this substantive perception of the rule of law, with a proper balance among the different rights and between human rights and the proper needs of society. The substantive rule of law is the rule of proper law, which balances the needs of society and the individual. This is the rule of law that strikes a balance between society’s need for political independence, social equality, economic development, and internal order, on the one hand, and the needs of the individual, his personal liberty, and his human dignity on the other. It is the duty of the Court to protect this rich concept of the rule of law. 132. By recognizing transgender persons as third gender, this Court is not only upholding the rule of law but also advancing justice to the class, so far deprived of their legitimate natural and constitutional rights. It is, therefore, the only just solution which ensures justice not only to transgender persons but also justice to society as well. Social justice does not mean equality before law in papers but to translate the spirit of the Constitution, enshrined in the Preamble, the Fundamental Rights and the Directive Principles of State Policy into action, whose arms are long enough to bring within its reach and embrace this right of recognition to the transgender persons which legitimately belongs to them. 133. Aristotle opined that treating all equal things equal and all unequal things unequal amounts to justice. Kant was of the view that at the basis of all conceptions of justice, no matter which culture or religion has inspired them, lies the golden rule that you should treat others as you would want everybody to treat everybody else, including yourself. When Locke conceived of individual liberties, the individuals he had in mind were independently rich males. Similarly, Kant thought of economically self‑sufficient males as the only possible citizens of a liberal democratic state. These theories may not be relevant in today’s context as it is perceived that the bias of their perspective is all too obvious to us. In post‑traditional liberal democratic theories of justice, the background assumption is that humans have equal value and should, therefore, be treated as equal, as well as by equal laws. This can be described as Reflective Equilibrium. The method of Reflective Equilibrium was first introduced by Nelson Goodman in Fact, Fiction and Forecast (1955). However, it is John Rawls who elaborated this method of Reflective Equilibrium by introducing the conception of Justice as Fairness. In his Theory of Justice, Rawls has proposed a model of just institutions for democratic societies. Herein he draws on certain pre‑theoretical elementary moral beliefs (considered judgments), which he assumes most members of democratic societies would accept. Justice as fairness tries to draw solely upon basic intuitive ideas that are embedded in the political institutions of a constitutional democratic regime and the public traditions of their interpretations. Justice as fairness is a political conception in part because it starts from within a certain political tradition. Based on this preliminary understanding of just institutions in a democratic society, Rawls aims at a set of universalistic rules with the help of which the justice of present formal and informal institutions can be assessed. The ensuing conception of justice is called justice as fairness. When we combine Rawls’s notion of Justice as Fairness with the notions of Distributive Justice, to which Nobel Laureate Professor Amartya Sen has also subscribed, we get a jurisprudential basis for doing justice to the vulnerable groups which definitely include transgender persons. Once it is accepted that transgender persons are also part of vulnerable groups and a marginalized section of society, we are only bringing them within the fold of aforesaid rights recognized in respect of other classes falling in the marginalized group. This is the minimum riposte in an attempt to assuage the insult and injury suffered by them so far as to pave way for fast‑tracking the realization of their human rights. 134. The aforesaid, thus, are my reasons for treating transgender persons as third gender for the purposes of safeguarding and enforcing appropriately their rights guaranteed under the Constitution. These are my reasons in support of our Constitution to the two issues in these petitions. 135. We, therefore, declare:, 135(1) Hijras, eunuchs, apart from binary gender, shall be treated as third gender for the purpose of safeguarding their rights under Part III of our Constitution and the laws made by Parliament and the State Legislature. 135(2) Transgender persons’ right to decide their self‑identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity as male, female or third gender. 135(3) The Centre and State Governments are directed to treat them as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission to educational institutions and for public appointments. 135(4) The Centre and State Governments are directed to operate separate HIV sero‑surveillance centres since hijras/transgender persons face several sexual health issues. 135(5) The Centre and State Governments should seriously address the problems being faced by hijras/transgender persons such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, social stigma, etc., and any insistence for sex reassignment surgery for declaring one’s gender is immoral and illegal. 135(6) The Centre and State Governments should take proper measures to provide medical care to transgender persons in hospitals and also provide them separate public toilets and other facilities. 135(7) The Centre and State Governments should also take steps for framing various social welfare schemes for their betterment. 135(8) The Centre and State Governments should take steps to create public awareness so that transgender persons will feel that they are also part and parcel of social life and are not treated as untouchables. 135(9) The Centre and State Governments should also take measures to regain their respect and place in society which they once enjoyed in our cultural and social life., The Government of India has introduced the Transgender Persons (Protection of Rights) Act, 2019 and has permitted a transgender person to have a right to be recognized and to have a self‑perceived gender identity. In the present case, the petitioner has opted for the female gender as her self‑perceived gender identity and makes a solemn statement, recorded as the statement made to the Court, that henceforth in her lifetime she would not switch over to the male gender driven by opportunism and would continue to opt for the female gender in future, except if there is a reservation provided for transgender persons in public life. It is quite apparent that the Returning Officer was handicapped as to the knowledge of law while deciding the fate of the nomination form of the petitioner. No other contesting candidate has raised any objection against the petitioner. The Returning Officer, who was circumspect about the nomination form, opted to reject the form believing that the petitioner can neither be male nor female and that the ward has been reserved for women‑general category. There is no ward reserved for transgender persons. In view of the above, this writ petition is allowed. The impugned order is quashed and set aside. Since the nomination form of the petitioner is otherwise complete in all respects, the same stands., The petitioner's nomination is accepted and she is permitted to contest the election from the ward and category which she has opted for in her nomination form. The rule is made absolute in the above terms. Since this judgment has been dictated in open court in the late hours of the day, and since it is informed that the internet facility in the High Court of Maharashtra has collapsed momentarily, the parties need not wait for this judgment to be uploaded on the High Court of Maharashtra website and shall proceed to act on this order.
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Bail Application No. 93/2022/C Sonia Doohan, Daughter of late Shri Sanshar Singh, aged 30 years, resident of VPO Petwar, District Hisar, Tehsil Narnanund 122053 Haryana, India. Applicant versus: Police Inspector Officer-in-Charge of Panaji Police Station, Panaji, Goa; Public Prosecutor, Panaji, Goa. Respondents' Advocate Mister R. Rawal present for Applicant. Lady Police Sub-Inspector Sapna Gawas present in person. (Delivered on 3rd July 2022) This order shall dispose of the present application for bail., It is the case of the Applicant that she was arrested by the Respondent No. 1 on 02-07-2022 in Crime No. 116/2022 for offences punishable under sections 419 and 420 read with section 34 of the Indian Penal Code. It is submitted that the Applicant is innocent and has been falsely implicated in the matter. There is no investigation to be conducted with the Applicant. The Applicant has no criminal antecedents and is ready and willing to abide by the conditions which the Honorable Court of India may impose and is also willing to cooperate with the investigation. It is thus prayed that the Applicant be enlarged on bail., The statement of the Investigating Officer was called for. The Investigating Officer has filed a statement and submitted that the crime committed by the Applicant is very serious in nature and sufficient time is required to collect more evidence. It is stated that the Applicant has a political background and if she is released on bail it is likely that she will threaten the witnesses and abscond. It is also stated that antecedents of the Applicant are yet to be verified and her identity is yet to be established., I have perused the record and heard learned Advocate Mister R. Rawal for the Applicant and the Investigating Officer who is present in person., The principles regarding granting of bail are well‑settled. In Sanjay Chandra v. CBI, AIR 2012 SC 830, the Honorable Supreme Court of India has held as follows: 14. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every person is deemed to be innocent until duly tried and duly found guilty. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un‑convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, ‘necessity’ is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter on which he has not been convicted or that in any circumstances he should be deprived of his liberty only on the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un‑convicted person for the purpose of giving him a taste of imprisonment as a lesson. 25. The grant or refusal to grant bail lies within the discretion of the Honorable Court of India. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Honorable Court of India, whether before or after conviction, to assure that he will submit to the jurisdiction of the Honorable Court of India and be in attendance thereon whenever his presence is required., Further, in the case of State of Rajasthan v. Balchand, (1977) 4 SCC 308, the Honorable Supreme Court of India observed as follows: 2. The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail from the Honorable Court of India. We do not intend to be exhaustive but only illustrative., Coming now to the case at hand, the Applicant is charged with offences punishable under sections 419 and 420 of the Indian Penal Code. The allegation is that the Applicant is attached to the students' wing of a political party and she checked into the resort with her accomplice by producing a fake identity proof and thereby committed the offence of cheating by impersonation. It is also alleged that Members of Legislative Assembly of some other political party were lodged in the same resort and a list of such members was found in possession of the Applicant. It is submitted that the Applicant had some mala fide intention of harming the members of the rival party at the behest of her own party., The offence under section 419 of the Indian Penal Code is bailable in nature. Further, even if the allegations are accepted on their face value, ex facie, the offence of cheating as defined under section 415 of the Indian Penal Code is not made out., Even otherwise, it is not the case of the Investigating Officer that there is any evidence to be collected at the instance of the Applicant. The bail application is opposed on vague grounds such as that the Applicant has a political background and she may threaten the witnesses and abscond. It is also stated that the address and the antecedents of the Applicant are yet to be verified and her identity has to be established. Such vague pleas cannot be the ground for rejecting the bail application., The apprehensions that the Applicant may abscond, etc., can be taken care of by putting the Applicant to terms. It is also needless to say that if the Investigating Officer does require the presence of the Applicant for verification of any facts, it is always open for the Investigating Officer to require the Applicant to remain present., Therefore, considering that further custodial detention of the Applicant is unnecessary and the Applicant has offered to furnish bail to the satisfaction of the Honorable Court of India and has also undertaken to abide by the conditions imposed by the Court, I allow the application and order the following: (1) Application is allowed. The Applicant is enlarged on bail in Panaji Police Station, Crime No. 116/2022, subject to the following conditions: a) Applicant shall furnish a personal bond of Rupees Twenty Thousand only (Rs. 20,000) and surety of the like amount to the satisfaction of the Investigating Officer; b) Applicant shall report to the Investigating Officer initially for a period of four days from 10:00 a.m. to 1:00 p.m. and thereafter as and when directed by the Investigating Officer until the final report is filed; c) Applicant shall not leave the State of Goa without giving prior intimation to the Investigating Officer; d) Applicant shall furnish to the Investigating Officer her detailed permanent address and local address supported with proof and contact numbers; e) Applicant shall not either directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of this case so as to dissuade him or her from disclosing such facts to the Court or to any police officer or any other authority; f) Applicant shall not tamper with the evidence in any manner; g) Applicant shall co‑operate with the investigation. (2) Applicant shall be released upon fulfilling conditions (a) and (d) above. Issue necessary letter to the Officer‑in‑Charge of Panaji Police Station accordingly. (3) It is made clear that the Applicant shall be set at liberty only if she is not required in any other crime.
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This first bail application is filed under Section 439 of the Code of Criminal Procedure, 1973 on behalf of the applicant Naresh Rajoriya Suresh Rajoriya, who has been in custody since 29 June 2022 in connection with Crime No. 84/2022 registered at Mahila Thana Police Station, District Bhopal, Madhya Pradesh, for offences punishable under Sections 376 and 506 of the Indian Penal Code. An earlier bail application under Section 438 of the Code of Criminal Procedure was dismissed as withdrawn by order dated 17 May 2022 in Miscellaneous Criminal Case No. 23195/2022., It is submitted that, although the website of the Hon'ble High Court of Madhya Pradesh mentions Miscellaneous Criminal Case No. 26587/2022, such an application was never filed by the present applicant. There is only one accused in the present crime. Shri Ankit Saxena, learned counsel for the applicant, states that the incident took place on 3 December 2020; on 18 March 2022 the prosecutrix pressurised the applicant for marriage, and on 12 April 2022 a First Information Report was lodged. The applicant is a differently abled person working as a Canteen Attendant in the Ministry of Defence. The prosecutrix was a consenting party and the allegation relates only to a false promise of marriage. There were stays in a hotel on seven occasions between 2020 and 2021. The prosecutrix initially refused to marry and later sent a message that the applicant could marry any other girl. There is a difference of five years in age between the complainant and the applicant, the complainant being older, and they belong to different castes. A charge‑sheet has been filed., The applicant relies on judgments of the Supreme Court in Deepak Gulati v. State of Haryana (2013) 7 SCC 675, Dr. Dhruvram Murlidhar Sonar v. State of Maharashtra, Maheshwar Tigga v. State of Jharkhand (2020) 10 SCC 108, Pramod Suryabhan Pawar v. State of Maharashtra (2019) 9 SCC 608, and Sonu v. State of Uttar Pradesh, 2021 SCC Online SC 181, to buttress the claim that where there is a consensual relationship, mere denial of marriage cannot be a ground to institute prosecution under Sections 376 and 506 of the Indian Penal Code. Shri Aditya Narayan Gupta, learned Government Advocate for the respondent State, and Shri Rajkumar Raghuwanshi, learned counsel for the objector, submit that the applicant sought time to obtain instructions because he was informed that he is willing to marry but family pressure forces him to withdraw. They contend that this is not a case of simplistic consensual pre‑marital sex. Both the applicant and the complainant are handicapped and knew each other. The applicant approached the complainant with a promise of marriage and enticed her into a physical relationship, later refusing to marry once he could obtain a job with the defence establishment., Shri Ankit Saxena further submits that the applicant’s sister is willing to arrange the marriage, but the applicant’s father has refused because of the age and caste differences, making marriage impossible. After hearing learned counsel for the parties and reviewing the record, it is evident that the applicant was aware of the age and caste differences. The only uniting factor was emotional bonding due to both being differently abled, and the applicant’s promise changed once he secured employment. In the 21st century, caste and creed continue to create social differentiation. The prosecutrix, a vulnerable witness, has not been examined in the Court of law, and if the applicant is released on bail there is a possibility of tampering with the witness. Having due respect to the judgments cited, the Hon'ble High Court of Madhya Pradesh is of the opinion that, to secure the interest of justice and the protection of a vulnerable witness, this is not the appropriate stage to extend bail. Accordingly, the bail application fails and is dismissed.
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Re: Appointment of Miss Justice Sonia G Gokani, Judge, High Court of Gujarat, as the Chief Justice of the High Court of Gujarat. By its resolution dated 31 January 2023, the Collegium has recommended the elevation of Mister Justice Aravind Kumar, Chief Justice of the High Court of Gujarat, as a Judge of the Supreme Court of India. A vacancy shall occur in the office of the Chief Justice of the High Court of Gujarat which needs to be filled up. Miss Justice Sonia G Gokani is the senior most Judge of the High Court of Gujarat. She was appointed on 17 February 2011 and is due to demit office on 25 February 2023. Miss Justice Gokani is drawn from the judicial service of the State of Gujarat., Besides being the senior most Judge, the appointment of Miss Justice Gokani as Chief Justice will bring a sense of inclusion and facilitate a representation for Judges drawn from the services in the office of Chief Justice. In terms of the Memorandum of Procedure, consultation has been held with the consultant Judges with a view to ascertain the suitability of Miss Justice Sonia G Gokani for appointment as the Chief Justice of the High Court of Gujarat. The consultant Judges have concurred with the proposal for the appointment of Miss Justice Gokani as the Chief Justice of the High Court of Gujarat., Having regard to all relevant factors, the Collegium is of the considered view that Miss Justice Sonia G Gokani has good credentials and is fit and suitable in all respects for being appointed as the Chief Justice of the High Court of Gujarat. The Collegium, therefore, resolves that Miss Justice Sonia G Gokani be appointed as the Chief Justice of the High Court of Gujarat immediately on the elevation of Mister Justice Aravind Kumar as a Judge of the Supreme Court. The recommendation should be processed on priority since she is due to retire on 25 February 2023.
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Petitioner: Satyaprakash. Respondent: State of Uttar Pradesh and six others. Counsel for the petitioner: Mohammad Khalid, Pawan Kumar Yadav. Counsel for the respondents: G. A. Additional Government Advocate Honourable Justice Anjani Kumar Mishra, Judge; Honourable Justice Deepak Verma, Judge. The learned counsel for the petitioner as well as the learned Additional Government Advocate for the State respondents appeared. The present petition has been filed seeking direction to the respondent authorities to conclude the fair investigation of Case Crime No. 610 of 2021, under Sections 363 and 366 of the Indian Penal Code, Gunnaur Police Station, District Sambhal. The contention of the learned counsel for the petitioner is that the police are acting in collusion with the accused persons and, as yet, neither the accused persons have been arrested nor any charge sheet has been filed against them. The petitioner is aggrieved by the manner of investigation said to have been conducted against private respondents., The Supreme Court of India in the case of Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage, (2016) 6 Supreme Court Cases 277, following its earlier decision in Sakiri Vasu v. State of Uttar Pradesh, (2008) 2 Supreme Court Cases 409, held as follows: “This Court has held in Sakiri Vasu v. State of Uttar Pradesh that if a person has a grievance that his first information report has not been registered by the police, or, having been registered, proper investigation is not being done, then the remedy of the aggrieved person is not to go to the High Court under Article 226 of the Constitution of India, but to approach the Magistrate concerned under Section 156(3) of the Code of Criminal Procedure. If such an application under Section 156(3) of the Code of Criminal Procedure is made and the Magistrate is, prima facie, satisfied, he can direct the FIR to be registered, or if it has already been registered, he can direct proper investigation to be done which includes, in his discretion, if he deems it necessary, recommending change of the investigating officer so that a proper investigation is done in the matter. We have said this in Sakiri Vasu case because what we have found in this country is that the High Courts have been flooded with writ petitions praying for registration of the first information report or praying for a proper investigation. We are of the opinion that if the High Courts entertain such writ petitions, then they will be flooded with such writ petitions and will not be able to do any other work except dealing with such writ petitions. Hence, we have held that the complainant must avail of his alternate remedy to approach the Magistrate concerned under Section 156(3) of the Code of Criminal Procedure and, if he does so, the Magistrate will ensure, if prima facie he is satisfied, registration of the first information report and also ensure a proper investigation in the matter, and he can also monitor the investigation.”, The power of the Magistrate to monitor investigation in exercise of his power under Section 156(3) of the Code of Criminal Procedure has also been recognized in the decision of the Supreme Court of India in the case of T. C. Thangaraj v. V. Engammal, (2011) 12 Supreme Court Cases 328; (2012) 1 Supreme Court (Criminal) 568, where, in the light of the law laid down in Sakiri Vasu’s case, it was observed as follows: “It should also be noted that Section 156(3) of the Code of Criminal Procedure provides for a check by the Magistrate on the police performing their duties and where the Magistrate finds that the police have not done their duty or not investigated satisfactorily, he can direct the police to carry out the investigation properly, and can monitor the same. (See Sakiri Vasu v. State of Uttar Pradesh).”, Recently, the Honourable Supreme Court of India in M. Subramaniam and another v. S. Janaki and another, 2020 Supreme Court Online 341, affirmed the view taken by the Supreme Court in Sakiri Vasu v. State of Uttar Pradesh and held as follows: “In our opinion Section 156(3) of the Code of Criminal Procedure is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an FIR and to order a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156(3) of the Code of Criminal Procedure, though briefly worded, in our opinion, is very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation.”, In view of the law noted above, we dispose of this petition with liberty to the petitioner to invoke the power of the Magistrate available under the Code of Criminal Procedure in the light of the law laid down by the Supreme Court of India.
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Presented on: 31/08/2016 Registered on: 01/09/2016 Decided on: 28/04/2022 Duration: 05 years 07 months 28 days Exhibit-27 The State of Maharashtra (Through Colaba Police Station, Mumbai) Crime Report No. 95/2016 dated 20/06/2016 Prosecution Rohit Chandrakant Jadhav, aged about 26 years, residing at G-3, Mandhareshwar Niwas, Manrel Pada Road, Kargil Nagar, Near Kalimata Mandir, Virar, Palghar 401305. Accused appearance: Learned State Public Prosecutor Mrs. Geeta Sharma for the prosecution. Learned Advocate Mr. Sudarshan Gamare for the accused., To protect the identity of the victim, her name and the names of her mother, relatives, and address are not disclosed in the judgment in view of the provisions of Section 33(7) of the Protection of Children from Sexual Offences Act, 2012., The accused is facing trial for offences punishable under Section 376(1) of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act, 2012., On 20/06/2016 the Colaba Police received a report from Nair Hospital that a minor girl was pregnant and admitted in the hospital. Police Sub-Inspector Sandeep Narsale reached Nair Hospital along with Police Sub-Inspector Devkar. Police Sub-Inspector Devkar recorded the statement of the victim. According to the 17‑year‑old victim, she had been residing with her maternal grandmother since 2010 and was studying in school., In the ninth standard the victim befriended Kushal Bhaguram Kadam. They were in love and used to meet at different places. In June 2015 both were in the tenth standard and attended tuition classes together, meeting at Priyadarshan Park., On 09/06/2015, after class, the victim and Kushal went to the victim’s house. Kushal expressed his desire to marry the victim and forcibly had sexual intercourse with her, threatening her from disclosing the incident to anyone. The victim began to avoid meeting Kushal., In February 2016, Kushal visited the victim’s house when she was alone and again forcibly had sexual relations with her., In March 2016 the victim missed her period and informed her mother by phone. On 20/06/2016 the victim returned from her village feeling unwell and was taken to Nair Hospital with her grandmother. The doctors reported her pregnancy and she gave a statement., Police Sub‑Inspector Narsale visited the victim’s school and found that no student named Kushal was enrolled. He again visited the victim and recorded a supplementary statement. In her statement dated 21/06/2016 the victim stated that her father was using the surname Kale of his adoptive parents instead of Yadav and that she also used the surname Kale. She also stated that three years earlier she had been in the ninth standard but left studies after failing., The accused was introduced to the victim by her friend Akshay. The victim befriended the accused and the relationship turned into a love affair. She used to visit Priyadarshani Park along with the accused. On 09/06/2015, when the victim was alone at home, the accused visited her, expressed his desire to marry her and, against her wishes, had penetrative sexual assault. The accused threatened the victim from revealing the incident to anyone. The victim started avoiding the accused, but in December 2015 on three to four occasions the accused again sexually assaulted the victim, and finally in February 2016 the accused again sexually assaulted her., The victim was scared and did not reveal the abuse to anyone. In March 2016 the victim missed her period and informed her mother about the accused. Her mother conducted a pregnancy test at home which was positive. On 20/06/2016 the victim experienced nausea and restlessness; her grandmother took her to Nair Hospital where her pregnancy was reported. The victim stated that because she was scared she had given wrong information to the police earlier., The birth certificate of the victim, produced by her mother, shows the victim’s age as 17 years. The offence was registered as Crime Report No. 95/2016 with Colaba Police Station under Section 376(1) of the Indian Penal Code and under Section 4 of the Protection of Children from Sexual Offences Act., The accused was arrested and a spot panchnama was performed. Medical examination of the accused was conducted and blood samples of the accused, the victim and the fetus were obtained for DNA testing. Upon completion of the investigation a charge‑sheet was filed against the accused., Charge was framed against the accused vide Exhibit‑5 under Section 376(1) of the Indian Penal Code and under Section 6 of the Protection of Children from Sexual Offences Act. The accused pleaded not guilty and claimed to be tried. The accused has not adduced any evidence in defence. The defence set up by the accused is that he was unaware of the minority of the victim, that they were having a love affair and that the accused was ready to marry the victim. The statement of the accused under Section 313 of the Code of Criminal Procedure is recorded at Exhibit‑26., The following points were considered for determination: (1) The prosecution proved that between 09/06/2015 and February 2016 the victim was under 18 years of age, thereby qualifying her as a child. (2) The prosecution proved that during the same period and at the victim’s house and other places the accused committed sexual intercourse with the 17‑year‑old victim by promising marriage, constituting an offence under Section 376(1) of the Indian Penal Code. (3) The prosecution further proved that the accused committed aggravated penetrative sexual assault on the victim on more than one occasion, constituting an offence under Section 6 of the Protection of Children from Sexual Offences Act, 2012., The prosecution relied upon the evidence of two witnesses: the victim (Exhibit‑14) and Police Sub‑Inspector Sandeep Narsale (Exhibit‑22). The following documents were proved by the prosecution: C.A. Report (Exhibits‑03 & 08), statement of the victim under Section 164 of the Code of Criminal Procedure (Exhibit‑04), DNA Report (Exhibit‑09), statement of the victim under Section 161 of the Code of Criminal Procedure (Exhibit‑15), supplementary statement of the victim (Exhibit‑16), birth certificate of the victim (Exhibit‑17), spot panchnama (Exhibit‑18), medical examination report of the victim (Exhibit‑19), medical examination report of the accused (Exhibit‑20), and FIR (Exhibit‑23)., To attract the provisions of the Protection of Children from Sexual Offences Act, 2012, the prosecution had to prove that the victim was under 18 years of age at the time of the incident. The birth certificate shows the victim’s date of birth as 19/09/1999, making her 15 years and 8 months old on 09/05/2016. The defence argued that the birth certificate was not proved and that the victim had told the accused she was a major. The Honorable Apex Court in State of Madhya Pradesh Vs. Anoop Singh, Criminal Appeal No. 442 of 2010, held that Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007, is applicable for determining the age of a victim of rape. The birth certificate issued by the Municipal Corporation of Greater Mumbai is conclusive proof of age. Although the victim’s surname differed on the complaint (Kale) and on the birth certificate (Yadav), the parents’ names matched and the difference was explained by the victim and not challenged by the accused., At the time of the medical examination of the victim, her age determination was not conducted by the doctor because the victim produced her birth certificate in the hospital. This finding is mentioned in the medical examination report of the victim (Exhibit‑19), which is admitted by the accused. Thus, the age of the victim is conclusively proved as 15 years and 8 months on the date of the offence., The offences alleged against the accused arose from the same transaction and are therefore discussed together. The evidence of the victim is of utmost importance. The prosecution bears the initial burden of proving the guilt of the accused beyond reasonable doubt. Once that burden is discharged, the court must raise the presumption under Sections 29 and 30 of the Protection of Children from Sexual Offences Act in favour of the victim, and the accused must rebut the presumption with rebuttable evidence. The learned prosecutor argued that although only two witnesses were examined, the quality of evidence was high. The victim was pregnant and hospitalized when she filed the complaint. The pregnancy was medically terminated and the DNA of the fetus revealed that the victim and the accused were the biological parents. The defence admitted the love affair between the victim and the accused, and therefore the penetrative sexual assault was not denied., The defence counsel argued that the love affair meant the victim initially gave a false name of the accused, that the sexual relations were consensual, that the accused was ready to marry the victim but the victim’s family opposed it, and therefore no offence was committed. The victim corroborated her complaint, supplementary statement and statement recorded under Section 164 of the Code of Criminal Procedure. She stated that the accused assured her of marriage and had sexual intercourse with her. The accused disclosed the matter to his brother Umesh, who spoke with the victim on phone and asked her not to worry. In cross‑examination the victim admitted belonging to the Hindu‑Maratha community and denied that her family was against the affair because the accused belongs to the Buddhist community., Further in cross‑examination the victim admitted that on 20/06/2016 she was ready to marry the accused and that both families were also ready for the marriage. She admitted that after the families learned of the love affair there were many meetings to discuss marriage, and that some social workers tried to influence her mother. The victim also admitted that she was not willing to file a complaint against the accused after learning of her pregnancy and that she filed the complaint at the insistence of her mother and grandmother., The defence counsel pointed out that in cross‑examination the victim admitted giving a false statement to the police to save the accused and specifically admitted that the sexual relations were consensual. The victim also admitted that she used to call the accused when her parents and grandmother were at work and her brother was at school, and that her father had no objection to her marriage with the accused, who was ready to marry her while committing sexual relations., From the cross‑examination it is clear that the victim and the accused were in a love affair and the sexual relations were consensual. However, it is already proved that the victim was a minor at the time of the incident. The defence submitted that the accused was not aware of the victim’s minority. Section 3 of the Protection of Children from Sexual Offences Act defines penetrative sexual assault on a child and makes the offence complete irrespective of the accused’s knowledge of the victim’s age. When the victim is below 18 years of age at the time of sexual intercourse, consent of the victim is immaterial, as held in Raju Deorao Bhurse Vs. State of Maharashtra (2019) ALL MR (Cri) 483. In Chotelal Kandhari Prajapati Vs. State of Maharashtra (2017) CJ (Bombay) 2067, the Bombay High Court held that the sole testimony of the victim can be relied upon if it is truthful and reliable, and further corroboration is required only if there is a discrepancy., The DNA report corroborates that there was penetrative sexual assault on the victim by the accused. As the victim was under 18 years of age and the accused committed repeated penetrative sexual assault, the offence attracts Section 5(l) of the Protection of Children from Sexual Offences Act, punishable under Section 6 of that Act. Hence, the prosecution has proved that the accused committed the offences alleged against him., The onus now shifts to the accused to rebut the presumption under Sections 29 and 30 of the Protection of Children from Sexual Offences Act. Apart from mere denial, the accused has not adduced any evidence or plausible explanation to rebut the presumption. Even in his statement recorded under Section 313 of the Code of Criminal Procedure, the accused stated that the victim informed him she was a major and had left studies, that he was unaware of her age, and that because he belongs to a lower caste the victim’s family were against their marriage and a false case was filed against him. As the presumption remains unrebutted, the inference is that the accused committed aggravated penetrative sexual assault upon a minor aged 15 years and 8 months on more than one occasion., The accused is found guilty under Section 5(l) punishable under Section 6 of the Protection of Children from Sexual Offences Act and under Section 376(1) of the Indian Penal Code. Accordingly, points 2 to 4 are answered in the affirmative., As the accused is found guilty for the offence punishable under Section 376(1) of the Indian Penal Code and under Section 6 of the Protection of Children from Sexual Offences Act, it is necessary to hear the accused on the quantum of sentence. The learned State Public Prosecutor submitted that the victim was only 15 years and 8 months old at the time of the incident, was cheated by the accused who assured her of marriage and then committed the offence, and therefore the maximum punishment should be imposed. The defence counsel submitted that the minimum punishment should be imposed and leniency shown because the accused is the sole earner of his family., The offence took place between 09/06/2015 and February 2016. The amendment in the Protection of Children from Sexual Offences Act providing for enhanced punishment came into effect on 16/08/2019; therefore, the punishment is to be imposed in accordance with the provisions of the Act prior to the amendment. Punishment for an offence under Section 376(1) of the Indian Penal Code is imprisonment for life or imprisonment of any description for a term not less than seven years and a fine, whereas the punishment provided in the Protection of Children from Sexual Offences Act prior to the amendment for an offence under Section 6 is rigorous imprisonment for a minimum of ten years which may extend to life imprisonment and a fine., Under Section 42 of the Protection of Children from Sexual Offences Act, where an act constitutes an offence punishable under that Act and also under Section 376‑D, 376‑E or 509 of the Indian Penal Code, the offender shall be liable to the punishment which is greater in degree. Consequently, a single punishment for both sections will serve the purpose, and the accused is punished under Section 6 of the Protection of Children from Sexual Offences Act., The judgment is as follows: (1) The accused Rohit Chandrakant Jadhav, residing at G-3, Mandhareshwar Niwas, Manrel Pada Road, Kargil Nagar, Near Kalimata Mandir, Virar, Palghar 401305, is hereby convicted vide Section 235(2) of the Code of Criminal Procedure in Crime No. 95/2016 registered by Colaba Police Station, Mumbai, for the offence punishable under Section 376(1) of the Indian Penal Code and under Section 6 of the Protection of Children from Sexual Offences Act, 2012. (2) The accused is sentenced to rigorous imprisonment for a period of ten (10) years and to pay a fine of Rs.5,000 (Rupees Five Thousand Only). In default of payment of the fine, he shall undergo further simple imprisonment of one (1) month in respect of the offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012. (3) No separate sentence is imposed for the offence punishable under Section 376(1) of the Indian Penal Code in view of Section 42 of the Protection of Children from Sexual Offences Act, 2012. (4) The period of inquiry, investigation and trial undergone by the accused from 21/06/2016 to 26/07/2016 shall be set off vide Section 428 of the Code of Criminal Procedure. (5) The accused is on bail and shall surrender his bail bond. (6) Upon realization of the fine, an amount of Rs.3,000 (Rupees Three Thousand Only) shall be given to the victim as compensation after the appeal period is over or subject to finality of any appeal. (7) Marked and unmarked articles, if any, being worthless, shall be destroyed according to law after the appeal period is over. (8) The accused is apprised of the provisions of appeal. (9) A certified copy of this judgment shall be given to the accused gratis and forwarded to the District Magistrate, Mumbai, vide Sections 353(4) and 365 of the Code of Criminal Procedure respectively. (10) As the matter is disposed of by this judgment, the record and proceedings shall be sent to the Record Department., The judgment was dictated and pronounced in open court at Mumbai by Designated Judge under the Protection of Children from Sexual Offences Act, 2012 for the Greater Bombay jurisdiction, Nazera S. Shaikh, on 28/04/2022. The certified copy is true and correct. The order was uploaded on 02/05/2022.
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Criminal Appeal No.213 of 2022 dated the 14th day of June, 2022 Jayachandran, J., Whether a Special Court constituted under the National Investigation Agency Act, 2008 can invoke the powers under Section 306 of the Code of Criminal Procedure to grant pardon to an accused at the post‑cognizance stage is the issue posed by the appellant in this appeal. The incidental issue is whether pardon can be granted at the post‑cognizance stage to a person who has not been arraigned as an accused in the final report., The appellant herein is presently the sixth accused in Special Court No.04/2021/NIA on the files of the Special Court for Trial of NIA Cases, Ernakulam. In the instant appeal, the appellant impugns the order dated 17‑1‑2022 in Criminal Miscellaneous Petition No.252/21, as per which an application filed by the National Investigation Agency at the investigation stage seeking grant of pardon to accused numbers 3, 8 and 14 was taken up for consideration in Criminal Appeal No.213/2022 at the post‑cognizance stage, overruling the objections raised by the appellant/A6 and directing production of the said accused persons before the Special Court on the next posting date., The prosecution allegations and incidents which culminated in the impugned order are narrated herein below: A Sri Lankan fishing boat by name 'Ravihansi' was intercepted by the Indian Coast Guard in the Arabian Sea, which contained huge quantities of narcotic drugs, along with five AK‑47 rifles and 1,000 numbers of 9 mm ammunition. The boat was seized by the Narcotic Control Bureau on 25‑3‑2021. A case, numbered 2/2021, in respect of the narcotic drug (heroin) seized, was registered against the six Sri Lankan nationals who travelled in the said boat on 26‑3‑2021. In respect of the other items found in possession of the accused persons, Crime No.498/2021 was registered before the Vizhinjam Police Station on 5‑4‑2021 under Section 27 of the Arms Act, read with Section 34 of the Penal Code against the six accused persons., Pursuant to a notification issued, the National Investigation Agency took over the investigation and the case was re‑registered as R.C.No.1/2021/NIA/KOC under Sections 7, read with 25(1AA) of the Arms Act. After effecting formal arrest of the six accused persons from the Central Jail, Poojappura, they were produced before the Special Court, Kochi. In the custodial interrogation of the accused persons, the role of accused numbers 7 (appellant herein) and 8 was revealed and they were arrested on 2‑8‑2021. According to the prosecution, accused numbers 7 and 8 are members of the proscribed organisation Liberation Tigers of Tamil Eelam (LTTE). Subsequently, offences under Sections 38, 39 and 40 of the Unlawful Activities (Prevention) Act were also incorporated., On 27‑9‑2021, the National Investigation Agency filed Criminal Miscellaneous Petition No.177/2021 before the Special Court seeking to record confession of accused numbers 3, 8 and 14. The Special Court directed the National Investigation Agency to file the necessary application before the Chief Judicial Magistrate. As directed by the Chief Judicial Magistrate, statements of accused numbers 8, 3 and 14 under Section 164 of the Code of Criminal Procedure were recorded by the Judicial First Class Magistrate's Court No‑III, Ernakulam on 20‑10‑2021, 24‑11‑2021 and 25‑11‑2021 respectively., On 4‑12‑2021, the National Investigation Agency filed the subject Criminal Miscellaneous Petition (Criminal Miscellaneous Petition No.252/2021) seeking tender of pardon to accused numbers 3, 8 and 14. On 15‑12‑2021, the National Investigation Agency filed a final report wherein the three persons have neither been arraigned as accused persons nor as witnesses. On account of the exclusion of the third accused (one among the three proposed approvers), the appellant, who was originally accused number 7, became accused number 6 in the array. On 30‑12‑2021, the Special Court took cognizance of the case., Thereafter, the Special Court proceeded to consider Criminal Miscellaneous Petition No.252/2021, whereupon the present appellant/A6 preferred Annexure‑4 objection. However, the impugned order dated 17‑1‑2022 was passed overruling the appellant's objection, challenging which the instant appeal is filed., Heard Smt. Sangeetha Lakshmana, learned counsel for the appellant/A6 and Sri S. Manu, learned Assistant Solicitor General of India for the respondent/National Investigation Agency., After taking us through Sections 306 and 307 of the Code, learned counsel for the appellant contended that an application for tender of pardon filed at the investigation stage/pre‑cognizance stage ought to have been proceeded under Section 306 of the Code by forwarding the request for compliance to the concerned Chief Judicial Magistrate, who alone has the power to tender pardon under Section 306. The Special Court seriously erred in considering such an application under Section 307 of the Code of Criminal Procedure after filing the final report and after the Special Court taking cognizance of the case. According to the learned counsel, the Special Court cannot mix up the powers under Sections 306 and 307 of the Code. Moreover, to invoke the powers under Section 307 by the Special Court at the post‑cognizance stage, accused numbers 3, 8 and 14 ought to have been in the array of accused in the final report filed by the National Investigation Agency. The National Investigation Agency having failed to show the said accused persons in the array, the Special Court lacks powers under Section 307 of the Code of Criminal Procedure to tender pardon to them. Learned counsel pointedly invited our attention to the fact that the said accused persons have not been arrayed even as witnesses in the final report., Secondly, learned counsel pointed out that the Special Court under the National Investigation Agency Act, going by Section 16(3) of the Act, is a Court of Session for all purposes and the offences are liable to be tried as if the Special Court is a Court of Session and in accordance with the procedure prescribed in the Code, wherefore an application preferred at the investigation stage, obviously under Section 306 of the Code, cannot be taken up by the Special Judge at the post‑cognizance stage to pass orders under Section 307 of the Code. Inasmuch as the Special Court has not taken cognizance as against accused numbers 3, 8 and 14 and has not issued summons to them, an application under Section 307 also cannot be entertained by the Special Court, is the submission of the learned counsel for the appellant., Since the revisional powers have not been conferred on the Sessions Court or, for that matter, a Special Court, the impugned order cannot be revised or modified and the only course open to the Special Court is to make a reference under Section 395 of the Code of Criminal Procedure to the High Court and to get the cognizance taken cancelled by setting aside the order dated 31‑12‑2021 to issue summons to the accused persons., Refuting the above contentions, learned Assistant Solicitor General of India submitted that the Special Court can invoke the powers under Sections 306 and 307, both, in the matter of grant of pardon, it being a court of original criminal jurisdiction. The legal position is settled by a catena of decisions of the Hon'ble Supreme Court. The learned ASGI placed specific reliance upon the judgments in P.C. Mishra v. State (CBI) and Ors. [(2014) 14 SCC 629], Bangaru Laxman v. State (through CBI) and Ors. [(2012) 1 SCC 500] and Harshad S. Mehta and Ors. v. State of Maharashtra [(2001) 8 SCC 257]. Inasmuch as the powers under Sections 306 and 307 are available to the Special Court, there is no procedural irregularity in the impugned order. Regarding non‑arraignment of accused numbers 3, 8 and 14, learned ASGI propounded a two‑fold argument, one based on facts and the other on interpretation of Sections 306 and 307 of the Code. On facts, learned ASGI submitted that the final report specifically refers to the pending application seeking pardon for the three accused persons and that the National Investigation Agency reserves its right to file a supplementary charge sheet if the application is rejected. On law, learned ASGI invited our attention to the language employed in Section 306 and Section 307, pointing out that the word 'accused' is not used; instead the language is 'any person supposed to have been directly or indirectly concerned in or privy to an offence'. Thus, it is not a requirement of law that a person for whom pardon is sought under Section 306 should have been arraigned as an accused person. The requirements are met if the person is supposed to have been directly or indirectly concerned in or privy to the offence. The learned ASGI contended that a co‑accused has no locus standi to challenge a proceeding for grant of pardon to another. The instant appeal is not maintainable, the learned ASGI concluded, as the impugned order is an interlocutory order, pure and simple., Having heard the learned counsel appearing on both sides, we will first examine the binding precedents on the powers of a Special Court in the matter of grant of pardon., In Commander Pascal Fernandes, Lt. v. State of Maharashtra and Others [AIR 1968 SC 594], a three‑Judge Bench of the Hon'ble Supreme Court, after discussing the powers under Sections 327 and 338 of the old Code (corresponding to Sections 306 and 307 of the new Code), held in paragraph no.11 that the powers of the Special Judge are not circumscribed by any condition except that they must be exercised with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, an offence. The Supreme Court also held that the Special Judge can exercise such power at any time after the case is received for trial and before its conclusion., In A. Deivendran v. State of Tamil Nadu [(1997) 11 SCC 720], a two‑Judge Bench of the Hon'ble Supreme Court held in paragraph no.6 that after committal of the case, it is the Court of Session which has the power to grant pardon under Section 307 of the Code. The legal position was analysed after juxtaposing Section 307 of the present Code with the corresponding Section 338 of the old Code, finding that the option available under Section 338 of the old Code to order the committing Magistrate or the District Magistrate to tender pardon is conspicuously absent in Section 307 of the new Code. The Supreme Court also held that a pardon tendered by the Chief Judicial Magistrate after committal proceedings is not a curable irregularity within the ambit of Section 460(g) of the Code., In this context, it is apposite to extract the following commentary from Sohoni's Code of Criminal Procedure (20th Edn.) on Sections 306 and 307 of the Code, which are essentially based on the dictum laid down in A. Deivendran (supra)., Tender of Pardon After Commitment to Sessions: There is a difference in the phraseology employed in Section 307 of the 1973 Code and that employed in the correspondent Section 338 of the 1898 Code. Under the scheme of the 1898 Code, the Court of Session, after the commitment of the case, had the power not only to grant pardon itself but could also direct the committing magistrate or the district magistrate to tender pardon. However, under Section 307 of the 1973 Code, only the court to which the commitment is made is competent to grant pardon. The retention of the marginal heading of Section 338 of the 1898 Code, 'Power to direct tender of pardon', without any change in Section 307 of the Code of Criminal Procedure 1973, may appear misleading. However, the marginal heading cannot be used to imply a power of the Court of Session to direct any subordinate magistrate to grant pardon after the committal of the case. The tender of pardon by the Chief Judicial Magistrate after the committal of the case is illegal and beyond his powers, and the said illegality can neither be cured under Section 460(g) Cr PC nor can Section 465 Cr PC be applied to such a patent error of jurisdiction. A tender of pardon by a magistrate in good faith but without authority may be curable, but a magistrate after committing the case to the Court of Session lacks jurisdiction to tender pardon. Under Section 525(8) of the 1898 Code, it was specifically stated that if any magistrate not empowered by law to tender pardon under sections 337 or 338 of the 1898 Code granted pardon, the same would not vitiate the proceedings. In Section 460 of the Code corresponding to Section 525 of the 1898 Code, the legislature omitted Section 307 from clause (g), and thus such irregularity committed by a magistrate is no longer curable., In Harshad S. Mehta and Ors. v. State of Maharashtra [(2001) 8 SCC 257], the Hon'ble Supreme Court examined the powers of a Special Court established under the Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992 in tendering pardon. Relying upon a Constitution Bench decision in A. R. Antulay v. Ramdas Sriniwas Nayak [(1984) 2 SCC 500], it was held that a Special Court is a court of original criminal jurisdiction and it has to function as such, not being bound by the terminological status description of a Magistrate's Court or a Court of Session. Under the Code, a Special Court enjoys all powers which a court of original criminal jurisdiction enjoys, save and except those specifically denied. The Supreme Court further held that a Special Court has all the powers of a Court of Session and/or Magistrate, and that the width of the power of the Special Court is the same whether trying cases instituted before it or transferred to it. Being a court of original criminal jurisdiction, the Special Court has all the powers of such a Court under the Code, including those of Sections 306 to 308, which have not been specifically excluded., In Bangaru Laxman v. State (through CBI) and Ors. [(2012) 1 SCC 500], the contention was that pardon could not be granted by the Special Court prior to the filing of a charge sheet, that the power to grant pardon is not an inherent power and must be specifically conferred, and that the powers under Section 306 of the Code having not been conferred, the Special Judge under the Prevention of Corruption Act, 1988 could not have exercised the same. The contention also argued that Section 5(2) of the P.C. Act specifically deemed the pardon granted by the Special Court to be one under Section 307, leaving no question of the Special Court invoking Section 306. The Supreme Court held that the power of the Special Judge to grant pardon is unfettered, subject to the stipulations in that section, and can be exercised at any stage. The deeming provision under Section 5(2) enables application of sub‑sections (1) to (5) of Section 308 to a pardon granted under Section 5(2) and does not exclude the power under Section 306. The Court also noted that even in the absence of a provision like Section 5(2) in the P.C. Act, a Special Court established for the trial of offences relating to transactions in securities is a court of original criminal jurisdiction having all the powers under the Code, including those under Sections 306 and 308. Further, reliance was placed upon State of Tamil Nadu v. V. Krishnaswami Naidu and Another [(1979) 4 SCC 5] to find that a Special Judge has the power of remand, since a magistrate includes a Special Judge under Section 3(32) of the General Clauses Act, 1897. The Supreme Court concluded that a Special Judge under the P.C. Act has the dual power of a Session Judge and a Magistrate and conducts proceedings under the Code both prior to and after filing the charge sheet. Consequently, the contention that a Special Court cannot grant pardon at the investigation stage was repelled, especially when the Special Court is not bound by terminological status descriptions of Magistrates or Courts of Session and is empowered to function as a court of original criminal jurisdiction., In P.C. Mishra v. State (CBI) and Ors. [(2014) 14 SCC 629], a two‑Judge Bench of the Hon'ble Supreme Court held that the powers under Section 306 of the Code of Criminal Procedure can be concurrently exercised by a Magistrate as well as a Special Judge during the pre‑committal stage; however, after committal, the power to grant pardon vests with the Special Court to which the case was committed. The dictum in A. Deivendran (supra) that a pardon granted by a magistrate after committal is not a curable irregularity was reiterated. Regarding the exercise of jurisdiction under Section 306 by a magistrate even after the appointment of a Special Judge, the Supreme Court held that such exercise is only a curable irregularity, incapable of vitiating the proceedings, especially when the Special Judge himself had referred the application for grant of pardon to the Chief Judicial Magistrate because the case was under investigation., In State through CBI, Chennai v. V. Arul Kumar [(2016) 11 SCC 733], the challenge was against an order of the Metropolitan Magistrate granting pardon to five accused persons for offences under the P.C. Act on the ground that only the Special Judge has the power to tender pardon. The Supreme Court held that Section 5(1) of the P.C. Act enabling the Special Judge to take cognizance without the accused being committed for trial only waives the mandate under Section 193 of the Code of Criminal Procedure and does not mean that the Special Court alone can take cognizance. The normal procedure under Section 190 of the Code, empowering the Magistrate to take cognizance, remains available. If the charge‑sheet is filed before the Magistrate, a committal proceeding should follow, and the Magistrate can exercise the power under Section 306. If the Special Judge takes cognizance directly, Section 306 is bypassed and the Special Judge gets the power under Section 307. The enabling provision under the P.C. Act, Section 5(1), bypassing the procedure under Section 190, is akin to Section 16(3) of the National Investigation Agency Act. In the present case there was no committal proceeding, and hence the Special Court could have exercised the power under Section 307 at any stage after cognizance was taken., A Full Bench of this Court in Mastiguda Aboobacker and Another v. National Investigation Agency & Others [2020 (6) KLT 522] held that the NIA Act does not prescribe a special procedure for investigating, inquiring into or trying offences under the Act. The NIA Act is intrinsically interlinked with the provisions of the Code in the matter of investigation and trial. The Full Bench examined Sections 14 and 16 of the NIA Act, the latter stipulating that a Special Court may take cognizance of any offence without the accused being committed to it for trial. After referring to the various provisions, the Full Bench concluded that, except for some minor deviations, all procedural aspects envisaged by the Code for trial of a Session Case are applicable in the trial before the Special Court constituted under the NIA Act., Having scanned the binding precedents, we will now examine and analyse the statutory provisions governing the topic. It is true that an enabling provision akin to Section 5(2) of the P.C. Act is not engrafted in the NIA Act to grant pardon. However, Section 16(3) specifically provides that a Special Court shall have all the powers of a Court of Session for the purpose of trial of any offence and shall try the offence as if it were a Court of Session, in accordance with the procedure prescribed in the Code for trial before a Court of Session. Section 5(2), as held in Bangaru Laxman (supra), only enables application of Section 308 of the Code in cases of default to testify after obtaining pardon under that provision, which is deemed to be a pardon granted under Section 307. For offences punishable with imprisonment for a term not exceeding three years or with fine, Section 16(2) provides that such offences can be tried summarily, in accordance with the procedure prescribed by the Code., Having bestowed our conscious attention to Section 16(3) of the Act, we are of the definite opinion that the said Section does not act as a fetter in resorting to any provisions of the Code of Criminal Procedure but is an enabling one. All powers of a Court of Session are vested in a Special Court, with certain modifications/exceptions, such as Section 16(1) of the NIA Act allowing cognizance without the accused being committed for trial. The purpose is to expedite the business of the Special Court and ensure a speedy trial of offences falling under the NIA Act. Therefore, the absence of an enabling provision to grant pardon, as is available in the P.C. Act, does not fetter a Special Court under the NIA Act, as it is stipulated that the Code will govern the procedure for trial before the Special Court. We are also justified in taking this view, supported by the authoritative pronouncement in A. R. Antulay (supra), that unless a Special Court is specifically denuded of a power, the power should be deemed to exist with such Court., Now, coming to Sections 306 and 307, it is clear from the provisions that for offences triable exclusively by a Court of Session or Special Court, the power under Section 306 is to be exercised in the pre‑committal stage, whereas the power under Section 307 is at the post‑committal stage. A. Deivendran (supra) held that the Chief Judicial Magistrate/Metropolitan Magistrate cannot order grant of pardon once a case has been committed to the Court of Session, and such an exercise is not a curable irregularity under Section 460 of the Code. However, in the case of a Special Court there is coalescence of the powers of both a Magistrate and a Special Judge, as held in Bangaru Laxman (supra). Therefore, irrespective of the stage of investigation, inquiry or trial, a Special Court can entertain an application for grant of pardon, since it has the powers under both Sections 306 and 307. It cannot be argued that an application preferred at such stage ought to have been forwarded to the Chief Judicial Magistrate for grant of pardon; and having failed to do so, the Special Court cannot consider such an application under Section 307, which contemplates power only at the post‑committal stage. We are unable to endorse the legal position canvassed by the learned counsel for the appellant. Being a court of original criminal jurisdiction and having been specifically bestowed with the power to take cognizance without a formal commitment of the case, a Special Court can exercise the powers to grant pardon, either under Section 306 or Section 307, at any stage of the proceedings, subject to propriety, good faith and bona fides of exercise of such power, which must be judicious., As regards the separation of authority regarding the power to grant pardon as envisaged under Sections 306 and 307, we find a specific logic. It is settled that the exercise of the power to grant pardon is a judicial act to be performed judiciously with due application of mind. Several factors referred to in Sections 306 and 307 must be considered and assessed by the Magistrate or the Sessions Judge, as the case may be. All relevant materials/records should be available with the Court tendering pardon for a proper exercise of such power. At the pre‑committal stage, such records are with the Magistrate; at the post‑committal stage, with the Sessions Court. This explains the bifurcation of power to grant pardon between the two courts as envisaged under Sections 306 and 307. This is the underlying logic in A. Deivendran (supra) that the Magistrate's Court does not have power to grant pardon once the case is committed to the Court of Sessions., In the light of the above discussion, we repel the first limb of the appellant's argument that a Special Court lacks power under Section 306 of the Code to entertain an application for tender of pardon preferred during the investigation stage after filing the charge sheet and taking cognizance. The second contention of the appellant is that the proceedings initiated to grant pardon to accused numbers 3, 8 and 14, who have not been arraigned as accused in the final report, are grossly illegal. In other words, the person to whom pardon is being granted under Section 306 or Section 307 should necessarily be an accused person. Learned counsel also attaches infirmity to the final report, as the three persons were not shown as witnesses either., For a correct understanding of this issue, it is necessary to have a closer look at Sections 306(1) and 307, which are extracted below: 306. Tender of pardon to accomplice. (1) With a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence to which this section applies, the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the investigation, inquiry into, or trial of, the offence, and the Magistrate of the first class inquiring into or trying the offence, at any stage of the inquiry or trial, may tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof. 307. Power to direct tender of pardon. At any time after commitment of a case but before judgment is passed, the Court to which the commitment is made may, with a view to obtaining at the trial the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, any such offence, tender a pardon on the same condition to such person., We notice that the language employed in Section 306 and Section 307 is not 'accused person' but 'any person supposed to have been directly or indirectly concerned in or privy to an offence' to which Section 306 applies. Thus, pardon can be tendered to any person who satisfies the above requirements; the person need not be an accused nor be arraigned as an accused in the final report. The non‑use of the term 'accused person' in Sections 306 and 307 answers the appellant's contention. The expression 'supposed to have been' is defined in Continental Casualty Co v. Paul [209 Ala 166] as something regarded as true without proof. In the law of evidence, an inference is a deduction from proved facts and differs from a supposition, which requires no such premise for justification., It could thus be seen that the person in whose favour pardon is sought should be supposed or considered to have been concerned in or privy to the offence. The expression 'supposed to have been' is elastic, providing ample room for the person concerned to have a lesser role., Again, the person to whom pardon is to be tendered need only be directly or indirectly concerned in or privy to the offence. The expression directly or indirectly indicates the nature of such person's involvement, the latter tending to be less incriminating. Relying upon R. Dalmia v. Commissioner of Income Tax [(1977) 2 SCC 467], Wharton's Law Lexicon (15th Edn.) defines the term 'concern' as not a term of art with a precise fixed meaning; it has several nuances and is used to convey diverse shades of meaning over a wide spectrum.
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The term \concerned\ as an adjective may mean interested or involved. The term \privy\ is defined in Wharton’s Law Lexicon (15th Edition) as having participation in some act, so as to be bound thereby (Woodhouse v. JenKins [(1832) 9 Bing 441]). Thus, the expression \privy to\ indicates a larger, active and direct participation in the crime., The same language employed in Section 306 is employed in Section 307 insofar as the recipient of pardon is concerned. We therefore conclude, on the basis of the above discussion and having regard to the terminology and expressions employed in Sections 306 and 307, that the person to whom pardon is to be tendered need not necessarily be an accused; rather it is not a sine qua non. The fact that on many occasions pardon is granted to an accused person is no indication that such person should always be arraigned as an accused., In adopting the above interpretation, we are fortified by the judgment of the Honourable Supreme Court of India in Commander Pascal Fernandes, the relevant findings of which are extracted below: There can be no doubt that the section is enabling and its terms are wide enough to enable the Special Judge to tender pardon to any person who is supposed to have been directly or indirectly concerned in, or privy to, an offence. This must necessarily include a person arraigned before him, but it may be possible to tender pardon to a person not so arraigned., A Division Bench of the Orissa High Court in Rabi Das & Ors v. State [1976 Criminal Law Journal 2004] and the Bombay High Court in Makbool Abdulrazzak v. State of Maharashtra [Laws (Bombay) 2004-8-141] took a similar view, with which we respectfully agree., The National Investigation Agency has a satisfactory explanation on the facts raised by the appellant. Firstly, accused numbers 3, 8 and 14, in whose favour tender of pardon is sought, have been arraigned as accused in the FIR. Secondly, the final report indicates that the application for tender of pardon to the aforesaid accused is pending and that the National Investigation Agency reserves its right to file a supplementary charge sheet in case the pardon sought is declined. The factual premise affords an adequate explanation for the non‑inclusion of the three accused persons in the array of accused persons in the final report. Nonetheless, we observe that, in the fitness of things, they should have been shown in the final report in the array of accused, with a rider proposed approver, and that the omission amounts to a minor irregularity, curable by filing a supplementary charge sheet or an additional list of witnesses depending upon the outcome of the tender of pardon., The following excerpt from a Privy Council decision in Faquir Singh v. Emperor [All India Reporter 1938 PC 266] is apt: If the manner in which the tender of pardon is made follows in substance the method prescribed in Section 337, then the Section must apply. Minor and immaterial irregularities or variations cannot be taken to affect the operation of the Section., Before leaving this judgment, we are persuaded to consider whether the appellant, in his capacity as a co‑accused, can assail an order or proceeding of the Special Court purporting to consider an application for tender of pardon preferred by the investigating officer. The contention of the National Investigation Agency that the appellant has no locus to challenge an order to consider the tender of pardon was accepted by the learned Special Judge in the impugned order., We note the judgment of the Honourable Supreme Court of India in CBI v. Ashok Kumar Aggarwal and Another [2014 (14) SCC 295], wherein it was held that the magistrate tendering pardon is bound to consider the consequence of the grant of pardon, taking into consideration the policy of the State and, to a certain extent, compare the culpability of the person seeking pardon with that of the other co‑accused. While the grant of pardon may have adverse consequences for the co‑accused, the Supreme Court clarified in paragraph 26 that a co‑accused has no legal right to raise any grievance in the matter of tender of pardon, particularly in view of the law laid down in Ranadhir Basu v. State of West Bengal [(2000) 3 SCC 161]. Nevertheless, the Supreme Court held that revisional powers under Sections 397 read with 401 of the Criminal Procedure Code can be exercised by the Court suo moto., In Ranadhir Basu v. State of West Bengal [(2000) 3 SCC 161], the Honourable Supreme Court distinguished the judgment in Suresh Chandra Bahri v. State of Bihar [(1995) Supp. 1 SCC 80] to hold that examination of the person to whom pardon was tendered in the Court of Magistrate taking cognizance, as contemplated in Section 306(4), need not be in the presence of the accused. The Court held that examination of a witness does not necessarily include cross‑examination and that the type of examination contemplated depends upon the object and purpose of the provision. Section 202 of the Criminal Procedure Code was relied upon to point out that examination of a witness stipulated therein occurs at a stage where the accused has no locus standi, having regard to the object and purpose of that Section., Taking stock of Ashok Kumar Aggarwal and Ranadhir Basu, we hold that a co‑accused has no locus standi to challenge an order for considering the tender of pardon sought by the investigating agency. Of course, a co‑accused gets a substantive right to assail the truth of the facts confessed by the approver when he is examined during the course of trial., Lastly, we notice that the instant appeal is liable to be dismissed on the question of maintainability as well. Sections 21(1) and 21(3) of the National Investigation Agency Act are relevant: 21(1) Notwithstanding anything contained in the Code, an appeal shall lie from any judgment, sentence or order, not being an interlocutory order, of a Special Court to the High Court both on facts and on law. 21(3) Except as aforesaid, no appeal or revision shall lie to any Court from judgment, sentence or order including an interlocutory order of a Special Court. The impugned order only rejected the appellant’s objections as to the legality of invoking the powers under Sections 306 and 307 of the Criminal Procedure Code, having regard to the stage at which it was sought. The order did not consider whether the pardon should be tendered. After rejecting the objections, the Special Court merely directed the accused persons to be produced on the next posting date, which is an interlocutory order; therefore, the appeal is not maintainable under Section 21(1). Regarding the scope of a revision under Sections 397 read with 401 of the Criminal Procedure Code, Section 21(3) bars a revision from any judgment, sentence or order of the Sub Court, including an interlocutory order. Consequently, the instant appeal is not maintainable., We therefore reject this appeal. However, we make it clear that we have not expressed any opinion as to the merits of the application seeking tender of pardon in favour of accused numbers 3, 8 and 14. The learned Special Judge will consider the said application on merits in accordance with law, taking stock of the statutory provisions and binding precedents, untrammeled by any of the observations made by us in this judgment.
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Supreme Court of India Collegium has recommended the name of Shri Arvind Kumar Verma, Judicial Officer, for appointment as Judge of the High Court of Chhattisgarh in the following terms: On 6 August 2023, the Chief Justice of the High Court of Chhattisgarh in consultation with his two senior-most colleagues made the above recommendation. The Chief Minister and the Governor of the State of Chhattisgarh have concurred with the recommendation., In terms of the Memorandum of Procedure, a Judge of the Supreme Court conversant with the affairs of the High Court of Chhattisgarh was consulted to ascertain the fitness and suitability of the candidate. For the purpose of assessing the merit and suitability of Shri Arvind Kumar Verma for elevation to the High Court, we have scrutinized and evaluated the material placed on record. Our sole consultee-colleague has opined that the officer is suitable for appointment as a Judge of the High Court. The Judgment Evaluation Committee constituted by the Chief Justice of the High Court has rated the quality of judgments authored by him as Very Good. Bearing in mind the views of the consultee-Judge on the suitability of the candidate, the report of the Judgment Assessment Committee and the assessment made by the Government of India in the file, the Collegium is of the considered view that the officer is suitable for appointment as a judge of the High Court of Chhattisgarh. While considering the above proposal, we have also taken note of the fact that the above proposal involves non-recommendation of some senior judicial officers. Cogent reasons have been recorded by the Collegium of the High Court for not recommending their names. We are therefore in agreement with the High Court Collegium for overlooking them. In view of the above, the Collegium resolves to recommend that Shri Arvind Kumar Verma, Judicial Officer, be appointed as a Judge of the High Court of Chhattisgarh.
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On 24 January 2022, per Hon'ble Mr Justice Ahsanuddin Amanullah, the Supreme Court of India heard Mr Ravi Teja Padiri, learned counsel for the petitioner, and Mr Subrahmanyam Sriram, learned Advocate General, along with Mr N Aswartha Narayana, learned Government Pleader, Services I, for the respondents No 1 to 3., The petitioner has moved the Supreme Court of India for relief, praying that the Court issue a writ of mandamus declaring Government Order No 1 of the Government of Andhra Pradesh dated 17 January 2022, published in Notification No 51, Amaravati, as illegal, arbitrary and contrary to the principles of natural justice, the Andhra Pradesh Reorganisation Act, 2014 and the Constitution of India. The petitioner further seeks a direction to the respondents to notify fresh revised scales of pay for 2022, taking into account the petitioner’s representation, to provide salary protection by continuing payment of existing emoluments such as House Rent Allowance, and to pass any other order deemed fit and proper., The matter was heard for some time and, due to paucity of time, was directed to be taken up again after the lunch recess. In view of certain developments brought to notice by the learned Advocate General relating to grievances over pay scales, the employees’ union sought and was granted an appointment with the Chief Secretary, Government of Andhra Pradesh at 3 pm on the same day to discuss the agitation schedule including notice of strike. The Supreme Court of India requested the employees’ representatives to join the proceedings virtually., The learned Advocate General submitted that when the Supreme Court of India had already been approached by way of this writ petition, albeit by a government employee in his individual capacity, it was not proper for the employees to call for or proceed on strike, which could bring the State’s administrative machinery to a grinding halt. It is well settled that Article 19(1)(a) of the Constitution of India guarantees all citizens the right to freedom of speech and expression, but that right is not absolute., In T K Rangarajan v Government of Tamil Nadu (2003) 6 Supreme Court Cases 581, the Supreme Court of India held: “Now coming to the question of right to strike whether fundamental, statutory or equitable/moral right, in our view, no such right exists with the government employees. There is no fundamental right to go on strike. Law on this subject is well settled and it has been repeatedly held by this Court that the employees have no fundamental right to resort to strike.”, The Court has consistently held that employees have no fundamental right to strike. In Kameshwar Prasad v State of Bihar (AIR 1962 SC 1166, 1962 Supplement (3) Supreme Court Reporter 369), the Constitution Bench held that the rule prohibiting strikes was valid since there is no fundamental right to resort to strike. In Radhey Shyam Sharma v Post Master General (AIR 1965 SC 311, (1964) 7 Supreme Court Reporter 403), the Court considered the Essential Services Maintenance Ordinance of 1960 and held that Sections 3, 4 and 5 did not violate the fundamental rights enshrined in Articles 19(1)(a) and (b), and reiterated that there is no fundamental right to strike. The Court also relied on All India Bank Employees’ Association v National Industrial Tribunal (AIR 1962 SC 171, (1962) 3 Supreme Court Reporter 269), where it was held that even a liberal interpretation of sub‑clause (c) of clause (1) of Article 19 cannot lead to the conclusion that trade unions have a guaranteed right to collective bargaining or to strike., In Ex‑Captain Harish Uppal v Union of India (2003) 2 Supreme Court Cases 45, the Constitution Bench held that lawyers have no right to go on strike or give a call for boycott and that even a token strike cannot be justified. The Court observed that a strike does more harm than any justice, and that society at large suffers., In Communist Party of India (M) v Bharat Kumar (1998) 1 Supreme Court Cases 201, a three‑Judge Bench approved the Kerala High Court decision, holding that the fundamental rights of the people as a whole cannot be subservient to the claim of a fundamental right of an individual or a section of the people, and that there can be no right to call or enforce a bandh which interferes with the exercise of the fundamental freedoms of other citizens., The relevant paragraph 17 of the Kerala High Court judgment states: “No political party or organisation can claim that it is entitled to paralyse the industry and commerce in the entire State or nation and is entitled to prevent citizens not in sympathy with its viewpoint from exercising their fundamental rights or performing their duties for their own benefit or for the benefit of the State or the nation. Such a claim would be unreasonable and could not be accepted as a legitimate exercise of a fundamental right by a political party or its members.”, The Tamil Nadu Government Servants Conduct Rules, 1973 prohibit government servants from striking. Rule 22 provides that no government servant shall engage in strike, incitement to strike or similar activities. The explanation defines “similar activities” to include absence from work without permission, neglect of duty with the object of compelling a superior officer or the Government to take or omit any official action, demonstrative fasts such as hunger strike, and concerted refusal to receive pay. Rule 22‑A prohibits any procession, meeting or address in any open ground adjoining a government office or inside office premises during office hours without prior permission of the head of the department., There is no moral or equitable justification to go on strike. Apart from statutory rights, government employees cannot claim to hold society hostage by striking. Even if there is perceived injustice, in a democratic welfare state employees must resort to the statutory mechanisms provided for grievance redressal. Strike is often misused, resulting in chaos and maladministration. When large numbers of employees strike, administration grinds to a halt, affecting education, health, transport and commerce, and may lead to damage of public property and public bitterness., Mr K K Venugopal, learned Senior Counsel appearing for the State of Tamil Nadu, submitted that there are about 12 lakh government employees in the State and approximately 90 percent of direct tax revenue is spent on their salaries. He argued that in a society with large‑scale unemployment and many qualified persons awaiting government jobs, strikes cannot be justified on any equitable ground., The Court agrees with the submission. While being conscious of rights, employees must be aware of their duties and responsibilities. For redressing grievances, working honestly, diligently and efficiently is preferable to striking, as government employees are part of the governing body and owe a duty to society., In the Ramlila Maidan Incident, In Re (2012) 5 Supreme Court Cases 1, it was noted that while it is difficult to anticipate a right to freedom without reasonable restriction, it is equally difficult to imagine a right not coupled with a duty. Part III of the Constitution confers rights, duties, regulations and restrictions, and freedom of speech is the bulwark of democratic government., In Mazdoor Kisan Shakti Sangathan v Union of India (2018) 17 Supreme Court Cases 324, the Court observed that peaceful demonstrations are a fundamental right enshrined in Articles 19(1)(a) and 19(1)(b) of the Constitution, guaranteeing freedom of speech and the right to assemble peacefully without arms. The Court emphasized that the right to protest is a fundamental right crucial to democracy, enabling citizens to voice grievances, expose governance flaws and demand accountability, especially for marginalized and poorly represented minorities., In Amit Sahni v Commissioner of Police (2020) Supreme Court Online SC 853 and (2020) 10 Supreme Court Cases 439, the Supreme Court observed that the existence of a constitutional challenge to a law does not take away the right of aggrieved persons to protest against the legislation., The Court notes that approaching a constitutional court for grievance redressal does not disqualify a citizen from protesting on the same subject, as the Court examines the dispute from a legal perspective, whereas protest aims to draw governmental attention. While Rangarajan dealt with protest/strike by government employees, the other cases relate to protests by citizens., If a rule analogous to Rule 22 of the Tamil Nadu Government Servants Conduct Rules, 1973 were applicable to employees of the Government of Andhra Pradesh, the situation would be different. However, the Court does not accept the proposition that approaching a Court would prohibit a person from protesting in a legally permissible manner, subject to the applicable rules and the person’s status as a government employee., The learned Advocate General submitted that Rule 4 of the Andhra Pradesh Civil Services (Conduct) Rules, 1964 reads: ‘No government employee shall participate in any strike or similar activities or incitement thereto.’ The explanation defines “similar activities” to include (i) absence from duty without permission, (ii) neglect of duty with the object of compelling a superior officer or the Government to take or omit any official action, (iii) any demonstrative fast such as a hunger strike, and (iv) concerted or organized refusal by government employees to receive their pay., With a view to engage in a dialogic conversation with all concerned stakeholders, the Court requested the government employees’ representatives to join the hearing virtually at 2.15 pm., After the Court rose for lunch recess, there was doubt regarding the matter before this Bench. The petitioner’s counsel took a categorical stand that he was representing only the petitioner, while the relief sought was in general terms against the pay scales notified by the Government, which, if interfered with, would affect all government employees, rendering the petition akin to a class action or public interest litigation. Consequently, under the present roster notified by the Chief Justice, the matter would not come under the Bench’s jurisdiction., The Court was informed that the request for joining the proceedings was conveyed to the concerned employees, but due to short notice they were unable to join the virtual proceeding., The Registry clarified that because the writ petition referenced the Andhra Pradesh Reorganisation Act, 2014, the matter was mistakenly listed before this Bench, although no dispute under the Act existed. The listing was therefore erroneous., The discussions above are provided as obiter observations in view of the order the Court proposes to pass., The Court orders that the instant petition be listed before the appropriate Bench after obtaining permission of the Chief Justice. The Registry will take follow‑up action forthwith., The parties are granted liberty to mention the matter before the Chief Justice or the concerned Bench, as nominated by the Chief Justice, for out‑of‑turn listing and priority hearing, given the urgency claimed.
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Samir Rajesh Sathe and Samir Hussain Shaikh, Appellant, versus the State of Maharashtra and Another, Respondents. Mr. Sunil R. Pandey with Mr. Raju Manpal for the Appellant. Ms. Anamika Malhotra, Additional Public Prosecutor for the State. Ms. Vrushali Raje, Appointed Advocate for Respondent No. 2., The Appellant is convicted, by the judgment of the Special Judge under the Protection of Children from Sexual Offences Act, Special Court, Mumbai on 22/11/2022 in POCSO Special Case No. 294 of 2022. He stands convicted for the offences punishable under Sections 354 and 354-A of the Indian Penal Code and directed to undergo Rigorous Imprisonment for two years and to pay fine of Rs.10,000/-, in default to suffer Simple Imprisonment for six months., Being aggrieved by the said judgment, he has preferred the present appeal, which is admitted on 06/02/2023. Notice was issued to Respondent No. 2 and, considering the sentence undergone, the appeal was directed to be listed for final hearing. Advocate Vrushali Raje was appointed through Legal Aid to represent Respondent No. 2. Since the record and pleadings are received, I have perused the same with the assistance of the learned counsel appearing for the respective parties and taken up the appeal for final hearing., The Appellant was charged for committing offences under Sections 8 and 12 of the Protection of Children from Sexual Offences Act and Sections 354, 354-A and 354-D of the Indian Penal Code, in the wake of the following allegations: that on 05/02/2022, from 1.30 p.m. to 7.00 p.m. towards Mahalaxmi station in front of HDFC Bank behind the bus stop, he used criminal force on the 17‑year‑old victim girl, assaulted her, pulled her hair, slapped her, gave abuses for forcing her to keep a love relationship with him; also at Churchgate he forcibly held her hand demanding a love relationship and thereby committed the act with sexual intent, an offence of sexual assault punishable under Section 8 of the POCSO Act. In the aforesaid incident, he is also charged for outraging the modesty of the victim, an offence under Section 354 of the Indian Penal Code, and for forcibly demanding a love relationship, an offence under Section 354-A of the Indian Penal Code., In support of the case of the prosecution, the victim girl entered the witness box as Witness 1, whereas a friend, who was accompanying her, was examined as Witness 2. An eye witness, a lemonade vendor present at Mahalaxmi Railway Station, was examined as Witness 4. The incident is alleged to have been recorded in CCTV footage installed outside Mahalaxmi Race Course and Witness 6, the Security Officer of Zenith House Pvt. Ltd., was examined for the purpose of proving the CCTV footage. The Investigating Officer is examined as Witness 7., The statement of the Accused under Section 313 of the Criminal Procedure Code is recorded, where he denied the prosecution case and, when asked why the prosecution witnesses have deposed against him, he responded: I had told her I do not want to be in a relationship. I had seen her with her boyfriend. I did not beat her. She said if I do not come into a relationship with her she will do many things, implicate me. I have photos and videos of our relationship., The victim girl disclosed her date of birth as 09/03/2005 and deposed in the witness box that she was studying in 12th standard when the incident occurred on 05/02/2022. According to her, she was in a relationship with the Appellant and, on the previous night, she had a telephonic conversation with him in which she expressed her intention to end the relationship; the Appellant asked her to meet for the last time and it was decided that they would meet at Churchgate station, with a common friend also to arrive there. While waiting for her friend to arrive at Churchgate station, she did not indulge in conversation with the Appellant. The Appellant took her phone, checked it, found a contact of her friend whom she had blocked, and suspected that because of the relationship with that friend she was ending the relationship with him. The Appellant called that friend from the phone of Witness 2, who told the Appellant that he was not in any relationship with Witness 1; still the Appellant blamed the person at the other end of the call for lying. When she wanted to leave, she was hit on the face and, before the Court, she gave a long version about how she was taken to Haji Ali and again hit there in public. She again got into the train towards Churchgate, when he pleaded that she should start the relationship afresh. He held her hand and snatched her mobile phone when she was attempting to call her paternal uncle. He pulled her hair in the bus; she got angry and hit him on the face and deboarded the bus. Her uncle reached there, when it is alleged that the Appellant spoke in bad language about her. This resulted in lodging a complaint with Colaba Police Station, which was exhibited as Exhibit 11. On the investigating machinery being set into motion, her statement under Section 164 of the Criminal Procedure Code was also recorded., In her cross‑examination, Witness 1 specifically admitted that she had known the Accused for the last two and a half years and that they were in a relationship, often roaming together and clicking pictures. She was confronted with a photograph marked as Article A, where they are seen in an intimate position. She also admitted that the Accused had blocked her in the mobile contacts and she requested him to unblock her, though she denied that the meeting was at her instance., When the cross‑examination of Witness 1 is perused, it is full of omissions concerning the narration of the complainant about her journey on the date of incident to Haji Ali by train, her demeanor when she refused to indulge the Accused, her being hit by him in public, and the manner in which she was alleged to have been carried in the luggage compartment. These omissions are proved through the Investigating Officer (Witness 7) and, on the omissions being proved, the case of the prosecution loses its credibility to a great extent and calls for close scrutiny of the version of Witness 1., The prosecution case states that the victim was accompanied by her friend Rasika, examined as Witness 2, but she denied knowing the Accused. Through her deposition, an entirely different version has come on record: she stated that on a particular date she, along with another friend and the victim, had gone to Haji Ali and, after having snacks, while walking towards Mahalaxmi Station, the victim’s boyfriend was with her. She deposed that at Churchgate the victim was present with the Accused and all of them boarded the train to Mahalaxmi and thereafter took the train back to Churchgate and reached their respective houses. She categorically stated that no incident happened in her presence between the victim and the Appellant. In cross‑examination, she admitted that they had been having an affair for the last two years and further clarified that she heard about their affair from outside sources. Witness 2 therefore does not support the version of Witness 1, which otherwise suffers from several inconsistencies and omissions., The lemonade vendor, examined as Witness 4, was brought in by the prosecution to establish that the Accused hit. In the examination‑in‑chief, he deposed that on a particular date, one boy and three girls were sitting near the bus stop and the boy gave 2‑4 slaps to the girl and pulled her hair. Thereafter, the public gathered and shouted at the boy and all four of them went inside the railway station. In cross‑examination, he admitted that his place of business is about 40 ft from the station and, since eight to ten months have lapsed from the incident, he does not remember much about it. He also admitted that he had not seen what they were talking about or the quarrel, as they were sitting at a distance of about 15 ft from him. He specifically stated that he had not worn spectacles on that day and could not see things at a far distance. While being asked to identify the Accused, he was unable to do so. The testimony of this witness therefore does not advance the prosecution case., The Security Officer of Zenith House Pvt. Ltd., examined as Witness 6, was examined to prove the contents of a CCTV footage of the alleged incident and to establish that Witness 1 was hit by the Accused. On receipt of a letter from Colaba Police Station, Witness 6 transmitted the footage of 05/02/2022 (05.02 to 05.17 minutes) from their computer into a pen drive brought by the lady constable. He recorded the certificate dated 09/03/2022 issued under Section 65‑B of the Evidence Act, bearing his signature and the company’s rubber stamp. He was confronted with a pen drive marked as Article A and a label marked as Article A/1, which contained footage of one boy at the bus stop beating a younger girl. The footage, when played before the Court, showed a footpath near the bus stop where a boy was seen assaulting a girl by kicks, blows and pulling her hair, and the girl being rescued by another girl. In cross‑examination, Witness 6 admitted that he does not know how to read and write English, though he understands it. He admitted that he is not in a position to read the contents of the certificate at Exhibit 22, that the contents were given by his office and he signed it without reading, and that he does not know how to transfer data onto a pen drive. He also admitted that he did not give the data on the pen drive. When specifically asked whether the image of the boy can be clearly seen in the pen drive, he stated that only when the image is zoomed can the face be seen., The above witness of the prosecution has also failed to add any credibility to the prosecution case, as the procedure prescribed under Section 65‑B, though followed, is of no consequence because the person who issued the certificate has admitted that he has not read its contents and merely signed it as instructed by the company., The testimony of the prosecution witnesses, including the complainant herself, has created a huge dent in the prosecution case. The certificate issued by Witness 6, which certifies that the computer in which the information was stored and generated was under his control and that the pen drive contains the footage information from that computer, loses its evidentiary value. It is settled law that the prosecution must establish its case beyond reasonable doubt. The Investigating Officer, who appeared as Witness 7 to prove the prosecution case, relied upon the spot panchnama as well as the CCTV footage drawn on the pen drive from Zenith House Pvt. Ltd. in the presence of panchas. Through him, the omissions in the statement of the key prosecution witness, Witness 1, are clearly brought on record. He specifically admitted that the pen drive containing the video was not sent for forensic analysis to identify whether the boy and the girl seen in the video are Witness 1 and the Accused, and that the technical procedure of obtaining the hash value of the recording was not adopted. He categorically admitted that there was a love affair between the victim and the Accused. In view of this material, with a specific denial by the Accused in his statement under Section 313 of the Criminal Procedure Code, the learned Judge found the Accused/Appellant guilty of committing the offences under Sections 354 and 354‑A of the Indian Penal Code., It is worth mentioning that Section 354‑A prescribes penalty for sexual harassment and, from the version of Witness 1, no case of sexual harassment is made out as the essentials of sexual harassment are not alleged. As far as Section 354 is concerned, it punishes a person who assaults or uses criminal force on any woman with intent to outrage or knowing it is likely to outrage her modesty. From the evidence led before the trial Judge, the offence is not made out and the learned Judge, in the impugned judgment, referred to some past criminal antecedents of the Accused and appears to have been carried away by his track record, though it is specifically recorded that the Accused is not found guilty of the said offences. The learned Judge, proceeding on moralistic ground, referred to a criminal case registered with Colaba Police Station in 2018, where a case was alleged by the prosecutrix against the Accused and the material reflected that the DNA report established that he was the biological father of the child born out of the relationship. In this background, the learned Judge concluded that the complainant had rightly decided not to continue her love affair with him and, therefore, she was assaulted when they met for the last time on 05/02/2022. The observations of the learned Judge in paragraphs 31 and 32 of the impugned judgment do not deserve confirmation, since the narration of Witness 1 herself does not prove the prosecution case, and her version is not corroborated by her friend (Witness 2), who shared friendship with her from first standard to tenth standard. The occurrence of the incident itself is doubtful and the learned Judge has erred in not accepting the fact that the two were in a relationship, which can be seen through the photograph (Article A) and the chat messages brought on record. True, the dignity of a woman is to be protected at any cost, but that does not absolve the prosecution from establishing its case beyond reasonable doubt and, since the prosecution has miserably failed to discharge the burden placed on it, the benefit must necessarily go to the Accused., In view of the discussion above, the appeal deserves to be allowed, by setting aside the impugned judgment dated 22/11/2022 passed in POCSO Special Case No. 294 of 2022, holding the Appellant guilty of the offences under Sections 354 and 354‑A of the Indian Penal Code and sentencing him to suffer Rigorous Imprisonment for two years. The Appellant stands acquitted of the charges levelled against him., It is informed that, upon the judgment delivered on 22/11/2022, the Appellant is in custody. He deserves his liberty in view of the reversal of the impugned judgment. He shall be set at liberty forthwith, if his custody is not warranted in any other case registered against him., Before I part, I deem it appropriate to record appreciation for Advocate Vrushali Raje, who has effectively represented the case of Respondent No. 2. The Legal Services Authority is directed to pay her legal remuneration within a period of six weeks from today.
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(Diary No. 45777/2018) Beghar Foundation through its Secretary and Another Petitioner versus Justice K.S. Puttaswamy (Retired) and Others Respondent; Jairam Ramesh Petitioner versus Union of India and Others Respondent; M.G. Devasahayam Petitioner versus Union of India and Another Respondent; Mathew Thomas Petitioner versus Union of India and Others Respondent; (Diary No. 48326/2018) Imtiyaz Ali Palsaniya Petitioner versus Union of India and Others Respondent., Permission to file Review Petitions is granted. Delay condoned. Prayer for open court/personal hearing of Review Petitions is rejected. The present Review Petitions have been filed against the final judgment and order dated 26 September 2018. We have perused the Review Petitions as well as the grounds in support thereof. In our opinion, no case for review of the judgment and order dated 26 September 2018 is made out. We hasten to add that change in the law or subsequent decision/judgment of a coordinate or larger Bench by itself cannot be regarded as a ground for review. The Review Petitions are accordingly dismissed. Consequently, prayer for urging additional grounds in Review Petition (Civil) No. 22/2019 stands rejected. (A.M. Khanwilkar) (Ashok Bhushan) (S. Abdul Nazeer) New Delhi; 11 January 2021., I regret my inability to agree with the decision of the majority in dismissing the present batch of Review Petitions. This batch of petitions seeks a review of the decision of a Constitution Bench of this Court in Puttaswamy (Aadhaar) v. Union of India. Among the issues which arose for decision, the Court had to answer two critical questions: (i) whether the decision of the Speaker of the Lok Sabha under Article 110(3) of the Constitution, to certify a Bill as a Money Bill under Article 110(1) is final and binding, or can be subject to judicial review; and (ii) if the decision is subject to judicial review, whether the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 had been correctly certified as a Money Bill under Article 110(1)., On the first question, the majority (speaking through Justice A.K. Sikri) stated that judicial review of whether a Bill is a Money Bill would be admissible under certain circumstances having regard to the law laid down by this Court. While answering the second question, the majority held that Section 7 of the Aadhaar Act had elements of a Money Bill, and the other provisions were incidental to the core of the Aadhaar Act. Hence, the majority held that the Aadhaar Act had been correctly certified as a Money Bill under Article 110(1)., In his concurring opinion, Justice Ashok Bhushan answered the first question by holding that the decision of the Speaker of the Lok Sabha under Article 110(1) could be subject to judicial review when it was in breach of a constitutional provision. Drawing a distinction between an irregularity of procedure and a substantive illegality, Justice Ashok Bhushan held: There is a clear difference between the subject irregularity of procedure and substantive illegality. When a Bill does not fulfil the essential constitutional condition under Article 110(1), the said requirement cannot be said to be evaporated only on certification by the Speaker. Accepting the submission that certification immunes the challenge on the ground of not fulfilling the constitutional condition, the Court will be permitting constitutional provisions to be ignored and bypassed. We are of the view that the decision of the Speaker certifying the Bill as a Money Bill is not only a matter of procedure and, if any illegality has occurred in the decision and the decision is clearly in breach of the constitutional provisions, the decision is subject to judicial review., However, in answering the second question, Justice Bhushan’s concurring opinion agreed with the majority and held that the Aadhaar Act had been correctly certified by the Speaker of the Lok Sabha as a Money Bill under Article 110(1)., The opinion authored by me answered the first question by holding that: The obligation placed on the Speaker of the Lok Sabha to certify whether a Bill is a Money Bill is not a mere matter of procedure contemplated under Article 122. It is a constitutional requirement, which has to be fulfilled according to the norms set out in Article 110. Article 122 will not save the action of the Speaker if it is contrary to constitutional norms provided under Article 110. The Court, in the exercise of its power of judicial review, can adjudicate upon the validity of the action of the Speaker if it causes constitutional infirmities. Article 122 does not envisage exemption from judicial review if there has been a constitutional infirmity. The Constitution does not endorse a complete prohibition of judicial review under Article 122; it is only limited to an irregularity of procedure., However, on the second question, my decision dissented with the majority and Justice Ashok Bhushan, and held that the decision of the Speaker of the Lok Sabha to certify the Aadhaar Act as a Money Bill under Article 110(1) was unconstitutional., The issue whether judicial review can be exercised over a decision of the Speaker of the Lok Sabha under Article 110(3) arose subsequently before another Constitution Bench in Rojer Mathew v. South Indian Bank Ltd. This was in the context of whether some of the provisions of the Finance Act, 2017 (relating to appointments to Tribunals and the conditions of service of members) could have been certified as a Money Bill under Article 110., The judgment delivered by the majority (speaking through Chief Justice Ranjan Gogoi) answered this question by referring to the judgment in Puttaswamy (Aadhaar) in the following terms: A coordinate Bench of this Court in K.S. Puttaswamy (Aadhaar) v. Union of India was tasked with a similar question of the certification of a Money Bill accorded to the Aadhaar Act, 2016 by the Speaker of the Lok Sabha. The majority opinion, after noting the important role of the Rajya Sabha in a bicameral legislative set‑up, observed that Article 110 being an exceptional provision must be interpreted narrowly. Although the majority opinion did not examine the correctness of the decisions in Mohd. Siddiqui and Yogendra Kumar Jaiswal or conclusively pronounce on the scope of jurisdiction or power of this Court to judicially review certification by the Speaker under Article 110(3), it independently reached a conclusion that the impugned enactment fell within the four corners of Article 110(1) and hence was a Money Bill. The minority view, however, explicitly overruled both Mohd. Siddiqui and Yogendra Kumar Jaiswal. The majority opinion in Puttaswamy, by examining whether the impugned enactment was in fact a Money Bill under Article 110 without explicitly dealing with whether certification of the Speaker is subject to judicial review, kept intact the power of judicial review under Article 110(3). It was further held that the expression Money Bill cannot be construed in a restrictive sense and that the wisdom of the Speaker of the Lok Sabha in this regard must be valued, save where it is blatantly violative of the scheme of the Constitution., We respectfully endorse the view in Puttaswamy and are in no doubt that Mohd. Siddiqui and Yogendra Kumar Jaiswal, insofar as they put decisions of the Speaker under Article 110(3) beyond judicial review, cannot be relied upon., However, the majority opinion noted that the first question was not adequately answered in the above decision in Puttaswamy. It also noted its doubts on the determination of the second question: Upon an extensive examination of the matter, we notice that the majority in K.S. Puttaswamy pronounced the nature of the impugned enactment without first delineating the scope of Article 110(1) and principles for interpretation or the repercussions of such process. It is clear to us that the majority dictum in K.S. Puttaswamy did not substantially discuss the effect of the word ‘only’ in Article 110(1) and offers little guidance on the repercussions of a finding when some of the provisions of an enactment passed as a Money Bill do not conform to Articles 110(1)(a) to (g). Its interpretation of the provisions of the Aadhaar Act was arguably liberal and the Court's satisfaction that the said provisions were incidental to Articles 110(1)(a) to (f) has been argued to be not convincingly reasoned and may not be in accord with the bicameral parliamentary system envisaged under our constitutional scheme. Without expressing a firm and final opinion, it has to be observed that the analysis in K.S. Puttaswamy makes its application difficult to the present case and raises a potential conflict between the judgments of coordinate Benches., Given the various challenges made to the scope of judicial review and interpretative principles, as adumbrated by the majority in K.S. Puttaswamy and the substantial precedential impact of its analysis of the Aadhaar Act, 2016, it becomes essential to determine its correctness. Being a Bench of equal strength as that in K.S. Puttaswamy, we accordingly direct that this batch of matters be placed before the Honourable Chief Justice of India, on the administrative side, for consideration by a larger Bench., As a consequence, the majority opinion held that the issue and question of Money Bill, as defined under Article 110(1) of the Constitution, and certification accorded by the Speaker of the Lok Sabha in respect of Part XIV of the Finance Act, 2017 is referred to a larger Bench., In his partly concurring and partly dissenting opinion, Justice Deepak Gupta agreed with the majority opinion in referring the first question of Money Bill to a larger Bench., I am in total agreement with the Chief Justice inasmuch as he has held that the decision of the Honourable Speaker of the Lok Sabha under Article 110(3) of the Constitution is not beyond judicial review. I also agree with his views that, keeping in view the high office of the Speaker, the scope of judicial review in such matters is extremely restricted. If two views are possible then there can be no doubt that the view of the Speaker must prevail. Keeping in view the lack of clarity as to what constitutes a Money Bill, I agree with the Honourable Chief Justice that the issue as to whether Part XIV of the Finance Act, 2017, is a Money Bill or not may be referred to a larger Bench., Similarly, another partly concurring and partly dissenting opinion, authored by me, held thus: Though the present judgment analyses the ambit of the word ‘only’ in Article 110(1) and the interpretation of sub‑clauses (a) to (g) of clause (1) of Article 110 and concludes that Part XIV of the Finance Act, 2017 could not have been validly enacted as a Money Bill, I am in agreement with the reasons set out by the learned Chief Justice of India to refer the aspect of Money Bill to a larger Bench and direct accordingly., Consequently, the correctness of the judgment in Puttaswamy, in relation to what constitutes a Money Bill under Article 110 of the Constitution, the extent of judicial review over a certification by the Speaker of the Lok Sabha and the interpretation placed on the provisions of the Aadhaar Act while holding the enactment to be a Money Bill, are issues which will be resolved by a larger Bench, which is yet to be constituted., The present batch of Review Petitions, in challenging the correctness of the judgment in Puttaswamy, assails the reasoning in the majority on whether the Aadhaar Act was a Money Bill under Article 110. The details of the Review Petitions are summarised below: (i) Review Petition (Civil) Diary No. 45777 of 2018 filed on 6 December 2018, seeking review of Puttaswamy on the basis that the majority opinion upheld the certification of the Aadhaar Act as a Money Bill, resting on the erroneous assumption that Section 7 of the Aadhaar Act is its core provision (Grounds XXIII‑XXVII). (ii) Review Petition (Civil) No. 3948 of 2018 filed on 23 October 2018, seeking review of Puttaswamy in relation to the majority opinion upholding the certification of the Aadhaar Act as a Money Bill within the meaning of Article 110 (Grounds I‑VII). (iii) Review Petition (Civil) No. 22 of 2019 filed on 15 December 2018, seeking review of Puttaswamy in relation to the majority opinion upholding the certification of the Aadhaar Act as a Money Bill and its consequence on the constitutionality of the enactment (Grounds I‑VI). (iv) Review Petition (Civil) No. 31 of 2019 filed on 21 December 2018, seeking review of Puttaswamy in relation to the majority opinion holding that the Aadhaar Act was correctly certified as a Money Bill by the Speaker of the Lok Sabha merely relying on Section 7 of the Aadhaar Act (Grounds G‑G‑II). (v) Diary No. 48326 of 2018 filed on 24 December 2018, seeking review of Puttaswamy in relation to the majority opinion upholding the Aadhaar Act’s certification as a Money Bill, which eliminated the possibility of discussion before the Rajya Sabha. (vi) Review Petition (Civil) No. 377 of 2019 filed on 10 January 2019, seeking review of Puttaswamy in relation to the majority opinion holding that the Aadhaar Act could have been certified as a Money Bill at the time of its introduction in the Lok Sabha (Ground A). (vii) Review Petition (Civil) No. 924 of 2019 filed on 12 January 2019, seeking review of Puttaswamy in relation to the majority opinion upholding the Aadhaar Act’s certification as a Money Bill in terms of Article 110(1) even though it contained provisions which affected the fundamental rights under Part III of the Constitution (Ground A)., If these Review Petitions are to be dismissed and the larger Bench reference in Rojer Mathew were to disagree with the analysis of the majority opinion in Puttaswamy, it would have serious consequences not just for judicial discipline, but also for the ends of justice. As such, the present batch of Review Petitions should be kept pending until the larger Bench decides the questions referred to it in Rojer Mathew., In Kantaru Rajeevaru (Right to Religion) v. Indian Young Lawyers Association, a nine‑judge Bench of this Court held that a reference could be made to a larger Bench in a pending Review Petition. The Court noted that such a question could also be a pure question of law. Chief Justice S.A. Bobde, speaking for the Bench, held that Order LV Rule 6 makes it crystal clear that the inherent power of this Court to make such orders as may be necessary for the ends of justice shall not be limited by the Rules. In S. Nagaraj v. State of Karnataka, it was observed that even when there was no statutory provision and no rules were framed by the highest court indicating the circumstances in which it could rectify its orders, the courts culled out such power to avoid abuse of process or miscarriage of justice. It was further held that this Court is not precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for the sake of justice., The present batch of Review Petitions should be kept pending until the larger Bench decides the questions referred to it in Rojer Mathew. In all humility, I conclude that the constitutional principles of consistency and the rule of law would require that a decision on the Review Petitions should await the reference to the Larger Bench., The operative portion of the order is as follows: The present Review Petitions have been filed against the final judgment and order dated 26 September 2018. We have perused the Review Petitions as well as the grounds in support thereof. In our opinion, no case for review of the judgment and order dated 26 September 2018 is made out. We hasten to add that change in the law or subsequent decision/judgment of a coordinate or larger Bench by itself cannot be regarded as a ground for review. The Review Petitions are accordingly dismissed. Consequently, prayer for urging additional grounds in Review Petition (Civil) No. 22/2019 stands rejected., Honourable Doctor Justice Dhananjaya Y. Chandrachud passed a separate dissenting judgment. The operative portion of the judgment is as follows: If these Review Petitions are to be dismissed and the larger Bench reference in Rojer Mathew were to disagree with the analysis of the majority opinion in Puttaswamy, it would have serious consequences not just for judicial discipline, but also for the ends of justice. As such, the present batch of Review Petitions should be kept pending until the larger Bench decides the questions referred to it in Rojer Mathew. In all humility, I conclude that the constitutional principles of consistency and the rule of law would require that a decision on the Review Petitions should await the reference to the Larger Bench. Pending applications, if any, stand disposed of.
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Date of Decision: 19th February, 2021. W.P. (C) 2297/2021 & CM Applications 6685/2021, 6686/2021. Through: Mr. Akhil Sibal, Senior Advocate with Ms. Vrinda Bhandari, Mr. Abhinav Sekhri, Ms. Sanjana Srikanumar, Mr. Krishnesh Sapat and Ms. Sonali Malik, Advocates versus Through: Mr. Tushar Mehta, Solicitor General, Mahajan, SPP, Mr. Rajat Nair, SPP and Mr. Dhruv Pande, Ms. Mallika Hiremath, Mr. Shantanu Sharma, Ms. Sairica Raju, Mr. A. Venkatesh, Mr. Guntur Pramod Kumar, Mr. Shaurya R. Rai, Ms. Zeal Shah, Ms. Aarushi Singh and Mr. Anshuman Singh, Advocates for Respondent 1/GNCTD. Mr. Chetan Sharma, Additional Solicitor General and Mr. Ajay Digpaul, CGSC with Mr. Amit Gupta, Mr. Vinay Yadav, Mr. Sahaj Garg, Mr. Akshay Gadeock and Mr. R.V. Prabhat, Advocates for Respondents. Nisha Bhambhani and Mr. Rahul Bhatia, Advocates for Respondent 3. Mr. Mrinal Bharti, Mr. Sumant De and Mr. Manish Shekhar, Advocates for Respondent 4. Mr. Hrishikesh Baruah, Mr. Pranav Jain, Ms. Mehma Kaur and Ms. Radhika Gupta, Advocates for Respondent 5. Mr. Kunal Tandon, Mr. Kumar Shashank Shekhar and Mr. Amandeep Singh, Advocates for Respondent 6. Prathiba M. Singh, J. (Oral)., This hearing was conducted in hybrid mode (physical and virtual). The present petition has been filed by Ms. Disha Ravi, an environmental activist, seeking various reliefs against the Ministry of Information and Broadcasting and various news channels in respect of alleged leakage of her messages and other investigation material which were broadcast and disseminated by the television channels at the behest of Delhi Police. The petitioner was arrested on 13th February 2021 in Bangalore and brought to Delhi. She was sent on police remand by order dated 14th February 2021 by the Duty Magistrate, Patiala House Courts., She claims that after her arrest, during the investigation, various messages were leaked by the police to the media, resulting in a large number of programmes, news bulletins and online dissemination of private messages and interventions which were broadcast. Some bulletins also alleged that she is associated with illegal and unlawful groups. Senior Counsel Akhil Sibal, appearing for the petitioner, submitted that the official Twitter handle of Delhi Police released comments about the investigation which formed the basis of the reports by the news channels. He also alleged that the petitioner apprehends that various messages were leaked by the police to the media. He states that there are four reliefs claimed: (1) the alleged WhatsApp conversation ought to be removed from the public domain and the police directed not to disseminate anything not part of the public record; (2) media houses directed to comply with the Programme Code and the Advertisement Code; (3) Delhi Police ought not to share investigation files; and (4) the police ought not to conduct any press briefings., Senior Counsel has placed on record various Twitter messages. Reliance is placed upon judgments that television channels and other media outlets should exercise responsibility while reporting on an ongoing investigation. The petitioner is claimed to have issued cease and desist notices, but the media channels did not exercise restraint, leading to the present petition. Reliance is also placed upon the office memorandum dated 1st April 2010 issued by the Ministry of Home Affairs, which provides broad guidelines for investigation and coverage., Mr. Raju, Senior Additional Solicitor General appearing for Delhi Police, presented an affidavit on behalf of Delhi Police sworn by Mr. Anyesh Roy, Deputy Commissioner of Police (Cyber Cell). The affidavit states that the petitioner’s allegation that investigation data has been leaked is false and incorrect. No information or documents forming part of the case files have been shared with any media houses or individuals, except for press briefings or broadcasts which are matters of record and not disputed. He further submits that the petitioner’s attempt to malign the police may have other sources, and assures the Supreme Court of India that police briefings will be in accordance with law., On a query from the Supreme Court of India, Mr. Raju confirmed that the office memorandum dated 1st April 2010 remains operative. He submitted that the present writ petition is a method to exert pressure on investigation agencies by maligning them and attempting to hamper the investigation., Mr. Chetan Sharma, Additional Solicitor General appearing for the Ministry of Information and Broadcasting, submitted that the Ministry is the nodal body for enforcing the Programme Code and Advertisement Code under the Cable Television Networks (Regulation) Act, 1995 and its Rules. The Ministry has constituted an inter‑Ministerial Committee headed by the Additional Secretary, I&B, to look into any complaints. As of date, no complaints have been received. He also challenged the maintainability of the writ petition., On behalf of the News Broadcasting Standards Authority, Senior Counsel Ms. Nisha Bhambhani submitted that the NBSA has no jurisdiction over tweets or internet articles. It works under the News Broadcasters Association, has nine members and is headed by a retired Supreme Court Judge. No complaint has been received by the NBSA to date; if any complaint is received, it shall be considered in accordance with the code of conduct applicable to members of the NBA. Senior Counsel further confirmed that the three television channels impleaded in the present petition are members of the NBA., Mr. Mrinal Bharti, Senior Counsel on behalf of News 18, stated that he wishes to take instructions as he has been served with the paper book a few hours ago. He wishes to verify the various broadcasts and submits that his channel would justify the broadcasts as they are not violative., On behalf of India Today, Senior Counsel Mr. Hrishikesh Baruah submitted that the only publication complained of is an online article and does not relate to India Today TV channels. He further submitted that the petitioner does not allege that the WhatsApp messages are false or incorrect and cannot be attributable to her. If that is the position, the broadcasting of the WhatsApp messages which are correct cannot be complained of. Reliance is placed upon the Supreme Court judgment in Central Public Information Officer, Supreme Court of India v. Subhash Chandra Agarwal, 2020 SCC 481 and the Queen’s Bench judgment in Douglas and Others v. Hello! Ltd [2001] QB 967., Mr. Kunal Tandon, Senior Counsel appearing for Times Now, placed four submissions: (1) all the information is in the public domain and he has not had the opportunity to view the videos shared with the Court; (2) considering the tweets posted by Delhi Police, the broadcast of those tweets or any other news relating to the investigation cannot be objectionable; (3) the petitioner’s right to privacy would be restricted only by overwhelming public interest as per the Supreme Court judgment in K.S. Puttaswamy and Anr. v. Union of India, 2017 SCC 1; and (4) if the petitioner wishes to enforce remedies under the Cable Television Networks (Regulation) Act and Rules, she has that remedy. Since the Government has not refused to entertain the petitioner’s complaint because she has not approached the Government, the maintainability of the petition is challenged., In rejoinder, it is submitted that a distinction must be maintained between public records and records in the public domain. The fact that the WhatsApp messages may be in the public domain does not make them part of the public record. The petitioner, having been arrested, experienced the entire leakage at the instance of Respondent No.1. Since the office memorandum respects the privacy of under‑trials, it should be complied with., Senior counsels for the parties were heard. The present petition raises issues of public importance: (1) the privacy and dignity of the individual concerned as well as her right to a fair trial; (2) the sovereignty and integrity of the country and whether reasonable restrictions can be imposed considering the nature of the ongoing investigation; and (3) the right to free speech and the public’s right to know. Repeated judgments of various courts, including the Supreme Court of India, have laid down broad principles and guidelines to ensure a correct balance., It is necessary to grant a detailed hearing, as several respondents have not had an opportunity to respond to the allegations or peruse the material placed on record today. Time will be granted to the respondents to file a reply to the application for interim relief., The question at this stage is whether the present state of affairs ought to continue. The Supreme Court of India has viewed the videos placed on record of News 18 and other materials, including tweets by Delhi Police and other online publications. Regulation of content in print and electronic media is a contested issue worldwide, and India is no exception. Content regulation is often viewed as directly affronting the right to free speech. While a journalist cannot be compelled to reveal sources, the source must be verified and authentic, and the content must not be speculative, conjectural, offensive, scandalising, and should be factual to the extent possible., The affidavit placed on record by Delhi Police reads as follows: I, Anyesh Roy, Deputy Commissioner of Police, Cyber Crime Unit – CyPAD, Special Cell, New Delhi, do hereby solemnly declare and affirm that I am the supervisory officer of FIR No. 49/2021 dated 04.02.2021, registered by the Special Cell, and am conversant with the facts and circumstances of the case. The present affidavit is filed in compliance with the statement made before this Honorable Court dated 18.02.2020. I state that the allegation that the petitioner’s chats have been leaked by Respondent No.1 is false and factually incorrect. No information or document forming part of the case file, including the chats, has been shared by Respondent No.1 with any media house or individual except for information communicated officially through press briefings or broadcasts, which are matters of record, and none has been leaked from Respondent No.1’s end., Thus, Delhi Police has taken an unequivocal position that it is not responsible for leaking messages or investigation material to media houses. The media houses, however, both in online articles and videos, claim the contrary. This requires more detailed examination and replies from the television channels., The question is what ad interim directions, if any, should be passed to ensure that the petitioner’s privacy, dignity and right to a fair trial; the sovereignty and integrity of the country; and the right to free speech are equally protected and balanced. Jurisprudence placed on record establishes two principles: the individual’s rights must be balanced with public interest., Print and electronic media play an important role in preventing sensationalism and adhering to responsible journalism. Recent coverage shows sensationalism. While police briefings and court proceedings may be broadcast, leaked investigation material ought not to be disseminated so as to prejudice the investigation., Accordingly, without further observations, the following directions are issued: (i) Delhi Police shall strictly abide by the affidavit dated 18th February 2021 and the Office Memorandum dated 1st April 2010, which remains in operation. Police or other investigation authorities may conduct briefings in accordance with law, provided petitioner’s rights are not violated; (ii) Media houses shall ensure that telecasts are from verified/authenticated sources, though sources need not be revealed, and all disseminated content shall strictly adhere to the Programme Code contained in the Cable Television Networks Rules 1994 and the Code of Ethics & Broadcasting Standards prescribed by the News Broadcasters Association; (iii) Editorial teams shall ensure that only broadcasts with verified data and content are communicated, exercising proper editorial control so that the petitioner’s investigation is not hampered; (iv) If a charge‑sheet is filed and made public, its contents may be disseminated once the investigation reaches a conclusion; (v) While there is an allegation that persons sympathetic to the petitioner are attempting to malign the police, Senior Counsel Akhil Sibal, denying the allegation, assures that the petitioner or any person directly associated with her does not intend to malign the police or investigating authorities; this assurance is accepted by the Supreme Court of India; (vi) The question of removal of content already in the public domain shall be considered with the hearing of the stay application at a later stage., All parties and the media shall adhere to the above directions. The News Broadcasting Standards Authority shall communicate these directions to all its members. For ready reference, a copy of the Office Memorandum dated 1st April 2010 is appended as Appendix A to this order., Reply to the stay application or the writ petition shall be filed within one week. Any rejoinder, if any, shall be filed within one week thereafter.
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Date of Decision: 24 August 2023. Through Mr Mahendra Kumar Mohanty, Petitioner-in-Person, versus through Mr Ajay Digpaul, Chief General Secretary with Mr Amit Gupta, Mr Kamal Digpaul, Ms Swati Kwatra, Mr Saurabh Tripathi, Mr Vikramaditya Singh and Mr Ghanshyam Jha, Advocates for Union of India. Mr Sanjay Katyal, Standing Counsel with Mr Nihal Singh, Advocate for Mr Sushil Kumar, computer operator., Mr Mahendra Kumar Mohanty, the petitioner, brings forth this public interest litigation challenging the membership criteria stipulated in the notice issued by Respondent No. 2, Delhi Development Authority, for the Qutab Golf Course located in Mehrauli, Delhi (hereinafter, public notice). He takes issue with an apparent disparity in membership provisions, specifically the subscription charges, between applicants from the government sector and those from the private sector. The petitioner is an accomplished athlete with accolades in various national‑level championships. A few years ago he was introduced to golf and in a short span developed deep admiration for the sport. Over time he honed his skills to achieve an impressive handicap of around ten. His dedication was recently recognized when he clinched the 15th Hindu College OSA tournament and the 1st Northend Super Golf series held at Qutab Golf Course. His association with sports makes him keenly interested in the membership of the Qutab Golf Course, which is a public facility managed entirely by the Delhi Development Authority, a government authority. The golf course, established on a vast expanse of government land and maintained using government resources, offers membership tenures to both government employees and the general public., The crux of the petitioner’s grievance hinges on the exorbitant membership fees of the Qutab Golf Course. There is a steep difference in the fee structure for government employees and private individuals. He references the following fee break‑up mentioned in the public notice: Category – Government: 5 years entry fee Rs 2.95 lakhs, monthly subscription Rs 1,416; 3 years entry fee Rs 1.77 lakhs, monthly subscription Rs 1,416. Category – Non‑government: 5 years entry fee Rs 8.85 lakhs, monthly subscription Rs 2,124; 3 years entry fee Rs 5.31 lakhs, monthly subscription Rs 2,124., The petitioner contends that utilization of the allotted public land and government funds for the benefit of a select group of elite government servants and private individuals is antithetical to the broader principles of public policy. Such practices, he argues, stand in stark contrast to the objectives outlined in various National Sports Policies. The overarching intent of the government’s sports policies, such as the National Sports Development Code, Fit India Movement and Khelo India, is to foster widespread public participation in sporting activities. These policies aim to achieve a dual goal of promoting sports as a mass activity while also nurturing excellence at the highest echelons. The aforementioned initiatives demonstrate the government’s commitment to enhancing India’s sports culture, right from the grassroots through structured talent identification and nurturing., It is contended that the impugned notice runs afoul of the directives of the Supreme Court of India elucidated in the case of Krishan Lal Gera v. State of Haryana. In that case the Apex Court critically examined the issue of a sports stadium being misappropriated for activities unrelated to sports. The Court observed that sports stadia cannot be used for personal enrichment or for serving the interests of a privileged few. Reliance is further placed on the order dated 13 July 2023 of this Court in Prem Nath Vasistha v. Union of India and Others., Mr Sanjay Katyal, representing the Delhi Development Authority, vehemently contends that the present petition is a misuse of the judicial process. He underscores that the fee stratification across different categories possesses a clear and discernible rationale and does not transgress the tenets of Article 14 of the Constitution of India, 1950, which guarantees equality before law. He points out that the differential fee structure for government and non‑government categories is not unique to Qutab Golf Course; other courses constructed on government lands follow similar stratifications. He further illuminates the financial strains that Qutab Golf Course, being entirely reliant on membership fees and green charges, grapples with. The club registered a loss of Rs 8.70 crores during the financial year 2021‑2022 and Rs 5.57 crores for the year 2022‑2023. In light of these challenges, he argues that the Delhi Development Authority has prudently calibrated its fee structure to ensure sustainable upkeep and maintenance of the golf course., The matter pertaining to the differentiation in membership fees of the Qutab Golf Course is not being presented to this Court for the first time. A learned Single Judge of this Court, in Writ Petition (Civil) No. 3365/2002, shed light on this contention, providing a logical perspective behind the difference in the fee structure. This decision, further reinforced by the Division Bench in LPA 526/2002, forms a substantial precedent. The Division Bench observed: The membership fee of different categories of members prescribed by the Delhi Development Authority for Qutab Golf Course under the Qutab Golf Course Rules and Regulations was challenged on the ground of arbitrary exercise of discretion. The learned Single Judge repelled this contention holding that the categories are based on intelligible differentia and the higher charges prescribed for non‑government members and even higher fee for corporate members are reasonable. Merely because the charges payable by government employees are lesser does not mean that non‑government employees or corporate members can claim the same fee. The learned counsel for the petitioner further contended that the classification has no correlation to the object sought to be achieved. The Court was unable to agree, noting that the concept of prescribing different charges for government and non‑government categories is prevalent in most clubs. The maintenance of a golf course requires considerable expenditure, justifying higher charges for non‑government and corporate memberships. The Court concluded that the petitioner does not have any right to seek membership at a lower rate nor is the impugned action amenable to interference under Article 226 of the Constitution of India. The appeal was dismissed., Having considered the rationale put forth by the learned Single Judge, we now turn to the present case. In our assessment the petition stands on shaky grounds. The petitioner is not being denied the chance to become a member of the club; the bone of contention is the quantum of the membership fee. A simple disparity in the fee structure, providing concessions to government employees, does not automatically translate into arbitrariness. This distinction is based on intelligible differentia, rooted in the variation in salary brackets and resources available to government employees compared to privately employed counterparts. Contrary to the petitioner’s claim that such facilities are exclusively reserved for elite government servants, the reality is otherwise. The determination of the membership fee emerges from a multitude of factors, including operational costs, maintenance, and other logistical considerations. Differential pricing in clubs and recreational spaces is not alien to our society. In the absence of manifest arbitrariness, the impugned fee structure does not present a case for judicial examination., The petitioner’s submissions seem to endorse the notion that the facilities should be availed at no cost because the golf course is established on government‑owned land. This perspective does not align with the practical nuances of the matter. Golf demands meticulous and regular maintenance of its courses, which requires substantial resources. These upkeep necessities inevitably lead to the levy of high membership or user fees. As highlighted by Mr Katyal, the maintenance of the infrastructure places a significant financial burden on the Delhi Development Authority. Thus, the fixed membership charges are not arbitrary but a result of thoughtful deliberation, aiming to balance provision of top‑notch facilities with their maintenance. The fact that the Delhi Development Authority falls under the aegis of the government does not absolve it from financial practicalities. Generating revenue through membership fees is indispensable to ensure that the golf course remains in prime condition and continues to offer premier facilities to its members., The precedent of Krishan Lal Gera cited by the petitioner is inapplicable to the circumstances of the present case. The Supreme Court observation related to the use of a stadium for non‑sports commercial activities such as a bar, restaurant or private events, which is distinct from the issue of membership fees at a golf course. Similarly, the order dated 13 July 2023 in Writ Petition (Civil) No. 7540/2020 does not provide a relevant parallel, as that case specifically revolved around the reservation policy of the Delhi Golf Course and the extension of membership privileges to senior dependents of existing members, not the general public., For the foregoing reasons this Court is not persuaded to entertain the present petition. The petition is dismissed in limine, along with the pending application.
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WP No. 9878/2021 High Court of Madhya Pradesh, Bench at Indore. Parties: Sonu Bairwa versus State of Madhya Pradesh and others. Date of order: 07/07/2021. Bench: Division Bench comprising Justice Sujoy Paul and Justice Anil Verma. Judgment delivered by Justice Sujoy Paul. Counsel for petitioner: Shri Mudit Maheshwari, learned counsel. Counsel for respondents: Shri Pushyamitra Bhargava, learned Additional Advocate General for the State., Law point: National Security Act, 1980, Section 3(2). The Act may be invoked in three contingencies to detain a citizen: (i) to prevent him from acting in any manner prejudicial to the security of the State; (ii) to prevent him from acting in any manner prejudicial to the maintenance of public order; (iii) to prevent him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community., Interpretation of statute: An explanation may be added to a statutory provision to include something within or to exclude something from the ambit of the main enactment or the connotation of a word occurring in it. The object of an explanation is ordinarily to explain the meaning and intendment of the Act, to clarify any obscurity or vagueness, to provide additional support to the dominant object of the Act, and to assist the court in interpreting the true purport of the enactment without interfering with or changing the enactment., Section 3(2) of the National Security Act, together with its explanation, does not eclipse the main provision. The explanation merely excludes from the scope of Section 3(2) the aspect of blacklisting of certain commodities covered by the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980. During a pandemic, the blacklisting of an essential drug such as Remdesivir brings the action within the purview of public order under Section 3(2)., The petitioner invoked the jurisdiction of the Indore Bench of the Madhya Pradesh High Court under Article 226 of the Constitution to assail the order dated 17/05/2021 whereby the District Magistrate, in exercise of power under Section 3(2) read with Section 3 of the National Security Act, detained the petitioner. The District Magistrate detained the petitioner on the ground that he indulged in black‑marketing of Remdesivir injections, two of which were recovered from him, at a time when Indore was facing the highest number of Covid patients. The detention order and its grounds were supplied to the petitioner., The petitioner’s counsel submitted that the detention order was supplied to the petitioner’s uncle and not to his parents, contrary to the observations of the Supreme Court in A.K. Roy v. Union of India (1982) 1 SCC 271. The counsel also argued that the petitioner was already in custody on the basis of an earlier FIR and that the District Magistrate incorrectly described the petitioner as absconding, which could affect the application of mind by the State government, Advisory Board or Central Government. Reliance was placed on the recent order of this Court in W.P. No. 9792/2021 (Yatindra Verma v. State of Madhya Pradesh) decided on 24/06/2021., The State, through Shri Pushyamitra Bhargava, learned Additional Advocate General, submitted that the ground of absconding is covered by the view taken in Yatindra Verma, and that the detention order was not interfered with because the petitioner was shown to be absconding. The State argued that the necessary ingredients for invoking the National Security Act were satisfied, that the petitioner’s act of black‑marketing Remdesivir threatened public order in Indore, and that the communication of the detention order to the petitioner’s paternal uncle sufficed to inform him of the grounds of detention., The petitioner relied on the ‘Explanation’ to Section 3(2), contending that if a person acts in a manner prejudicial to the maintenance of supplies and services essential to the community but such act falls within the ambit of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980, the person cannot be detained under the National Security Act. The petitioner submitted that the Essential Commodities Act, 1955, and the Blackmarketing Act define Remdesivir as an essential commodity, and therefore the detention order is contrary to the explanation., The Court noted that a judgment cannot be read as Euclid’s theorem and that a slight difference in facts may affect the precedential value of a decision. It reiterated that a person already in custody may be detained under the National Security Act if (i) the detaining authority had knowledge of the custody, (ii) there exists a real possibility of release on bail, and (iii) it is necessary to prevent the person from indulging in activities prejudicial to the security of the State or maintenance of public order upon release. The Court found that all three conditions were satisfied in the present case, citing Kamini Yadav v. State of Madhya Pradesh (WP No. 25986/2018) and Konungjao Singh v. State of Manipur (2012) 7 SCC 181., The Court held that the social media posts of the Chief Minister cannot be equated with an administrative order and that no clear nexus was established between those posts and the detention order. Consequently, the argument that the District Magistrate acted under dictate was rejected. Regarding communication of the detention order, the Court observed that no prejudice was caused to the petitioner by informing his uncle, and that the petitioner had promptly filed the petition seeking legal recourse., The Court concluded that the petitioner failed to demonstrate any flaw in the decision‑making process of the District Magistrate, that the detention order was made in accordance with law, and that no interference was warranted. The petition was dismissed as being without substance.
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Criminal Miscellaneous Petition No. 1861 of 2022. Hemant Soren, aged about 46 years, son of Shibu Soren, resident of Chief Minister House, P.O. Kanke, Police Station Gonda, District Ranchi, Petitioner versus (i) the State of Jharkhand and (ii) Rakesh Ranjan Oraon, Executive Magistrate, Sadar, P.O. and Police Station Ranchi, District Ranchi, Opposite Parties., The Office note indicates that notice has been personally served upon Opposite Party No. 2, who subsequently lodged the First Information Report in his personal capacity as Executive Magistrate, Sadar, Ranchi. Mrs. Vandana Bharti, learned counsel for the State, submits that there are legal points argued on behalf of the petitioner and requests that the matter be decided on those points. The matter is being heard on its merits. Learned counsel for the petitioner, Mr. Kaushik Sarkhel assisted by Mr. Abhishek Singh, and learned counsel for the State, Mrs. Vandana Bharti, appeared before the Jharkhand High Court., The petition seeks quashing of the entire criminal proceeding in connection with Argora Police Station Case No. 149/2019, corresponding to MP/MLA Case No. 15 of 2021, including the order dated 16 November 2019 whereby cognizance was taken under section 188 of the Indian Penal Code and section 130(e) of the Representation of People Act, 1951, pending before the learned Judicial Magistrate, First Class, Ranchi. The First Information Report lodged by Opposite Party No. 2 alleges that on 6 May 2019, while casting his vote in booth No. 288 in the Lok Sabha election 2019, the former Chief Minister Hemant Soren exhibited a party symbol by wearing a patta, which is alleged to be a violation of the model code of conduct and an offence under section 130(e) of the Representation of People Act, 1951., Counsel for the petitioner submits that the matter was investigated by the investigating officer, a notice under section 41-A of the Criminal Procedure Code was received by the petitioner, and the petitioner cooperated in the investigation. A charge sheet was submitted and cognizance was taken on 16 November 2019 under section 188 of the Indian Penal Code and section 130(e) of the Representation of People Act, 1951 against the petitioner. He argues that, in the absence of a judicial mind, cognizance was taken against the petitioner, but there is no allegation that the petitioner disobeyed any order promulgated by a lawfully empowered public servant. He further submits that section 195(1)(a) of the Criminal Procedure Code requires a complaint for such a case to be entertained, and that section 2(d) of the Criminal Procedure Code defines a complaint. He contends that section 130(e) of the Representation of People Act, 1951 is not attracted by the contents of the First Information Report. He argues that prosecution cannot be maintained solely by an authority whose order is alleged to have been violated, and that the Executive Magistrate had no locus to lodge the First Information Report. He also states that no competent authority such as the Election Commissioner of India or any person authorized on his behalf lodged the First Information Report., He relies on the decision of C. Muniappan & Others v. State of Tamil Nadu reported in (2010) 9 SCC 567, wherein the Supreme Court held: “Thus, in view of the above, the law can be summarised to the effect that there must be a complaint by the public servant whose lawful order has not been complied with. The complaint must be in writing. The provisions of Section 195 Criminal Procedure Code are mandatory. Non‑compliance with it would vitiate the prosecution and all other consequential orders. The court cannot assume cognizance of the case without such complaint. In the absence of such a complaint, the trial and conviction will be void ab initio being without jurisdiction. … The learned counsel for the appellants have submitted that as no charge could have been framed under Section 188 IPC in the absence of a written complaint by the officer authorised for that purpose, the conviction under Section 188 IPC is not sustainable. … Undoubtedly, the law does not permit taking cognizance of any offence under section 188 IPC unless there is a complaint in writing by the competent public servant. In the instant case, no such complaint had ever been filed.”, Counsel for the opposite parties submits that a violation did occur, which is why the First Information Report was lodged by the competent Executive Magistrate who was on duty, and that there is no illegality in lodging the First Information Report or in taking cognizance., The Jharkhand High Court notes that the First Information Report, Argora Police Station Case No. 149/2019, was lodged under section 188 of the Indian Penal Code and section 130(e) of the Representation of People Act, 1951, by Opposite Party No. 2. The issue to be determined is whether the Executive Magistrate has locus standi to file a First Information Report directly with the concerned police station for registration of a crime under section 188 of the Indian Penal Code and section 130(e) of the Representation of People Act, 1951 against the petitioner. Section 188 of the Indian Penal Code provides: “188. Disobedience to order duly promulgated by public servant. Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both; and if such disobedience causes or tends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. Explanation – It is not necessary that the offender should intend to produce harm, or contemplate his disobedience as likely to produce harm. It is sufficient that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm.”, The Court also refers to section 195 of the Criminal Procedure Code, which states: “195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence – (1) No Court shall take cognizance (a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code, or (ii) of any abetment of, or attempt to commit, such offence, or (iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate; …” The provision makes clear that a complaint must be in writing to a magistrate and not merely a police report. Section 2(d) of the Criminal Procedure Code defines “complaint” as any allegation made orally or in writing to a magistrate with a view to his taking action, and expressly excludes a police report., On a combined reading of section 188 of the Indian Penal Code and section 195 of the Criminal Procedure Code, it is evident that the court cannot take cognizance of an offence punishable under sections 172 to 188 of the Indian Penal Code except on a written complaint by the public servant concerned or a subordinate public servant. Consequently, the Executive Magistrate could not have validly registered the First Information Report for an offence under section 188 of the Indian Penal Code. The Supreme Court in C. Muniappan (supra) held that while the First Information Report may not be barred, taking cognizance is barred under section 195 of the Criminal Procedure Code. This view is supported by the decision in State of Punjab v. Raj Singh & Another (1998) 2 SCC 391., The Court finds that the First Information Report is silent on any consequence that would arise from the alleged disobedience, and therefore the requirement of a written complaint by the public servant is not satisfied. Accordingly, the order taking cognizance is not in accordance with law and is barred under section 195 of the Criminal Procedure Code. The petition falls within the ambit of paragraph 102(6) of the judgment of the Supreme Court in State of Haryana v. Bhajan Lal (1992) SCC (Supp) 1 335., In view of the foregoing facts, reasons and analysis, the entire criminal proceeding against the petitioner in connection with Argora Police Station Case No. 149/2019, corresponding to MP/MLA Case No. 15 of 2021, including the order dated 16 November 2019 whereby cognizance was taken under section 188 of the Indian Penal Code and section 130(e) of the Representation of People Act, 1951, pending before the learned Judicial Magistrate, First Class, Ranchi, is hereby quashed., The petition is allowed and disposed of. The interim order is vacated. (Sanjay Kumar Dwivedi, J.)
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Present: Hon'ble Justice Shampa Sarkar, Writ Petition Application 7882 of 2022, Sunita Shukla versus the State of West Bengal & Ors. For the petitioner: Mr. Pratik Dhar, Senior Advocate; Mr. Koustav Bagchi; Mr. Anirudhya Bhattacharyya; Mr. Debayan Ghosh; Ms. Priti Kar; Ms. Cardina Roy. For the State: Mr. Amitesh Banerjee, Senior Standing Counsel; Ms. Ipsita Banerjee; Uddhadev Adak. For the Central Bureau of Investigation: Mr. Billwal Hattacharyya, Deputy Solicitor General; Mr. Kallol Mondal. Hearing concluded on 20 January 2023. Judgment delivered by Justice Shampa Sarkar., The prime concern and endeavour of law should be to secure justice on the basis of truth, which ought to be unearthed through a committed and competent investigating agency. The writ petition is a plea of a mother who alleges that her son Vishal was a victim of police atrocities and was subjected to abuse of power by the police when he was illegally detained in Titagarh Police Station on 9 March 2022., The family lives together in a joint mess. Vishal is an accused against whom Titagarh Police Station Case No. 181 of 2022 dated 10 March 2022 under Section 21 of the Narcotic Drugs and Psychotropic Substances Act was registered. It was alleged that due to political reasons the officers of Titagarh Police Station, being hand in gloves with the ruling dispensation in the State of West Bengal, forcefully took Vishal into custody on 9 March 2022. Thereafter, Vishal was falsely implicated in a criminal case on the charge of commission of an offence punishable under the NDPS Act. The FIR was registered on 10 March 2022 at 6.15 hours. The petitioner approached this High Court of India under Article 226 of the Constitution of India, seeking enforcement of the right to personal liberty and dignity guaranteed under Article 21., The petitioner, as one of the family members of the victim, was aggrieved by the abuse of powers by the police authority which subjected not only her son but also the family members to indignity, mortification and social embarrassment on account of the alleged wrongful confinement of Vishal by implicating him in a false criminal case. The petitioner approached the Court with prayers for investigation by an independent agency beyond the control of the State of West Bengal, for a court‑monitored investigation of the NDPS case, for seizure and preservation of CCTV footage of Titagarh Police Station dated 9 March 2022 and 10 March 2022, and for quashing Titagarh Police Station Case No. 181 of 2022 dated 10 March 2022., The allegation of deprivation of the right to dignity, personal liberty and denial of a free and fair investigation are the issues for adjudication by this High Court of India. In the matter of Bhagalpur Blinding case v. State of Bihar, reported in 1981 Cri LJ 597, speaking for the bench, Bhagwati while considering the relief that could be granted by a court for violation of the constitutional rights guaranteed in Article 21 posed the following question: if life or personal liberty is violated otherwise than in accordance with such procedure, is the Court helpless to grant relief to the person who has suffered such deprivation? Why should the Court not be prepared to forge new tools and devise new remedies for the purpose of vindicating the most precious of the fundamental right to life and personal liberty?, The petitioner contended that Vishal's participation in the municipal elections of 2022 as an election agent of his cousin Rakesh Shukla, a candidate backed by the Indian National Congress, made Vishal a victim of political vendetta. Vishal had been constantly threatened by the police and was warned that he would be implicated in a criminal case if he did not withdraw his support for his cousin. After the declaration of the result on 2 March 2022, it was business as usual for all. Suddenly, on 9 March 2022 at about 12.37 p.m., two persons claiming to be officers from Titagarh Police Station went to the jewellery shop owned by the petitioner's husband (Vishal's father). Vishal was assisting his father in the family business. The police personnel were not in uniform. They picked up Vishal and took him to Titagarh Police Station in a Mahindra Scorpio bearing No. WB24AE4973. Vishal's father telephoned the Officer in charge but received no answer. The incident was captured by a CCTV camera installed in the shop., Vishal's father went to the police station and demanded answers. Ultimately, in the early hours of 10 March 2022 at about 5.00 a.m., Vishal was placed inside the police lock‑up. Vishal intimated his father that he had been physically assaulted and made to sign various documents without being given an opportunity to read their contents. Later, the petitioner and other family members learned that Vishal was charged with an offence punishable under Section 21(c) of the NDPS Act based on a suo motu complaint of Respondent No. 6, who was a Sub‑Inspector of Titagarh Police Station. Allegations were made that Vishal was detained in the police station throughout the entire day on 9 March 2022 and kept either in the PC party room or in the room adjacent to the police lock‑up., The crux of the complaint giving rise to the NDPS case was that on 10 March 2022 at about 1.13 a.m., Respondent No. 6 received secret information that a person was waiting at Koyla Depot, Math, within the jurisdiction of Titagarh Police Station with a large quantity of phensedyl. The de facto complainant noted the same via a General Diary Entry (GDE) of Titagarh Police Station No. 648 of 2022 dated 10 March 2022 and informed Respondent No. 4, the Officer in charge. The police authorities proceeded to the spot and arrested Vishal. Two and a half kilograms of codeine mixture was found in Vishal's possession. All formalities were maintained; the seized items were labelled and inventoried. The arrest took place at about 4.55 a.m. on 10 March 2022., The petitioner contended that her son had been framed in the NDPS case out of political vengeance and that the police acted in collusion with a local political leader belonging to the present political dispensation. It was further alleged that Vishal was picked up from the shop, taken to the police station, detained for the whole of 9 March 2022 and thereafter, in the early hours of 10 March 2022, shown to be arrested in connection with the NDPS case. The petitioner claimed that Vishal was never allowed to leave the police station on 9 March 2022 and that the FIR had been falsely registered., In the affidavit in opposition filed by Respondent No. 4, certain facts were disclosed from the side of the respondents. It was stated that Ramesh Shaw lodged a complaint that Vishal and his associates had assaulted and threatened Bimal Shaw, son of Ramesh Shaw. On the basis of such complaint, Titagarh Police Station Case No. 129 of 2022 dated 14 February 2022 under Sections 341, 325 and 34 of the Indian Penal Code was registered. On 9 March 2022, Ramesh Shaw intimated the police that Vishal had threatened him and others with dire consequences if they did not withdraw the pending criminal case. Consequently, Titagarh Police Station GDE No. 606 of 2022 was diarised on 9 March 2022 and Sub‑Inspector Sanjay Naskar was endorsed with the enquiry. Sanjay Naskar visited Nataraj Jewellers and met Vishal. Vishal allegedly displayed bad behaviour, non‑cooperation and unwillingness to answer the police officer's questions. Sanjay Naskar was compelled to arrest Vishal under Section 151 of the Code of Criminal Procedure in order to prevent commission of a cognizable offence; an arrest memo was issued. The persons present on spot refused to sign the same. Vishal was handed over to the duty officer by Sub‑Inspector Sanjay Naskar and sent for medical examination. The entire matter was reported to the Officer in charge, and Titagarh Police Station GDE No. 611 of 2022 dated 9 March 2022 was diarised. A bail bond was subsequently submitted by a clerk seeking Vishal's release. Vishal was released upon acceptance of the bail bond; the release was diarised as GDE No. 626 dated 9 March 2022., The allegation that Vishal was forced to sign blank papers in the police station and that the police authorities went to the shop in plain clothes without displaying their names on the uniform has not been specifically denied in the opposition. The police authorities further stated that upon furnishing the bail bond, Vishal was released at 3.45 p.m. on 9 March 2022, his signature was obtained on the bail bond and the police authorities placed strong reliance on the same. A report with regard to Vishal's arrest and release on 9 March 2022, along with all connected documents, was forwarded to the learned Additional Chief Judicial Magistrate, Barrackpore on 9 March 2022. A prayer for further enquiry was made and allowed by the learned jurisdictional magistrate., After Vishal's release, on the next day, i.e., 10 March 2022 at about 1.13 a.m., Respondent No. 6 received secret information that someone was waiting at Koyla Depot, Math, within the jurisdiction of Titagarh Police Station with a huge quantity of phensedyl. The matter was diarised as GDE No. 648 dated 10 March 2022. Following orders from the Officer in charge, Respondent No. 6, along with police personnel, went to the spot. At the site, codeine mixture was seized from Vishal's exclusive possession under a proper seizure list. Titagarh Police Station Case No. 181 of 2022 dated 10 March 2022 under Section 21 of the NDPS Act was registered. On the following day, Vishal was forwarded to the learned Additional Sessions Judge, First Court, Barrackpore, who directed the police authorities to collect the CCTV footage of Nataraj Jewellers. Allegedly, Vishal's father did not allow the police authorities to seize the storage device of the CCTV footage (DVR). Respondent No. 6 was compelled to prepare a NIL seizure list. Vishal's prayer for bail was refused., The primary contention of the petitioner was that truth should be unearthed. Her son had been wrongly incarcerated and had not been released from the police station on 9 March 2022. She urged that Vishal was a victim of police excess and that the CCTV footages of Titagarh Police Station dated 9 March 2022 and 10 March 2022 would establish the truth in her allegations against the police. Vishal was never allowed to leave the police station on 9 March 2022 and could not have been present with the codeine mixture on 10 March 2022 in the early hours of the morning., On 7 April 2022 the petitioner made a representation via e‑mail to Respondents Nos. 1, 2 and 3 seeking preservation of the CCTV footages of Titagarh Police Station dated 9 March 2022, asserting that the footage would substantiate the fact that her son had been falsely implicated in the NDPS case. In the course of hearing of the writ petition, this High Court directed the Commissioner of Police, Barrackpore Commissionerate to take necessary steps to obtain the pinpoint location of Vishal Shukla on 9 and 10 March 2022, and to indicate whether the direction of the Supreme Court with regard to preservation of CCTV footages had been complied with by Titagarh Police Station and other police stations under the administrative control of the commissionerate. The CDR report given by Reliance Jio could not trace the telephone of Vishal, yet it showed that Vishal moved from the tower at Titagarh M.G. Road (location of the shop) to the neighbouring tower at A. Devi Road (location near the police station) on 9 March 2022 between 12 hours and 13 hours. No calls were either received or made by Vishal between 1.06 p.m. on 9 March 2022 and the last date of the call record, and the tower location of A. Devi Road did not change., With regard to the Court's query as to whether the series of directions of the Hon'ble Supreme Court with regard to installation of CCTV cameras in police stations and preservation of the footages had been complied with by Titagarh Police Station, the Commissioner specifically stated that the Assistant Commissioner of Police (Headquarters), Barrackpore Police Commissionerate had been appointed as the nodal officer in the district to supervise the process and progress of the installation of CCTV cameras with one‑year backup capacity to keep records of the stored footages. The installations were being carried out in phases under the supervision of the State Level Oversight Committee. Once such work was complete, the direction of the Hon'ble Supreme Court would be strictly complied with. It was categorically stated that the CCTVs functioning in Titagarh Police Station at the relevant point in time had one‑month backup capacity and that video footages and recordings were automatically erased after a month. Consequently, the report dated 11 August 2022, which forms part of the records, stated that the video footages of the incident which took place on 9 March 2022 and 10 March 2022 at Titagarh Police Station were not available., Mr. Dhar, learned Senior Advocate appearing on behalf of the petitioner, submitted that the CCTV footages were a valuable piece of evidence which would demolish the charge that Vishal had committed an offence under the NDPS Act on 10 March 2022. He submitted that the petitioner had written a letter to the Officer in charge of the police station on 7 April 2022 with the allegation of wrongful detention and had asked for the footages, but the police authorities did not make any endeavour to store the same, although a letter had been written within a month from 9 March 2022, i.e., within the backup period. He further submitted that the First Information Report dated 10 March 2022 did not make any reference to the earlier incident which took place on 9 March 2022, although such incident would be a relevant piece of information in the subsequent FIR. He urged the Court to note that Vishal was falsely implicated in the NDPS case and that the NDPS case should be investigated by an independent agency as the conduct of the police authorities was unfair and in violation of the legal provisions relating to arrest., According to Mr. Dhar, the least that the family of the accused could expect from the investigating agency was a fair and impartial investigation. He submitted that the theory of \last seen together\ would be applicable in this case; Vishal was last seen at the police station and, by application of the theory, the Court should arrive at the conclusion that Vishal did not leave the police station on 9 March 2022. He further submitted that although a case was pending under Titagarh Police Station Case No. 129 of 2022 dated 14 February 2022 under Sections 341, 325 and 34 of the Indian Penal Code, Vishal was never questioned by the police authorities at any relevant point of time and no notice under Section 41A of the Code of Criminal Procedure had been served on Vishal. He urged that the arrest under Section 151 of the Code of Criminal Procedure on 9 March 2022 for prevention of commission of a cognizable offence was not preceded by an enquiry and that the police authorities had not satisfied themselves that a situation existed which would require preventive detention of Vishal. He placed reliance on the decisions of the Supreme Court in Paramvir Singh Saini v. Baljit Singh and Ors.; D.K. Basu v. State of West Bengal and Ors.; Lalita Kumari v. Government of U.P. & Ors.; State of West Bengal v. Committee for Protection of Democratic Rights, West Bengal & Ors.; Rini Johar v. State of M.P. & Ors.; Arnesh Kumar v. State of Bihar & Anr.; Youth Bar Association of India v. Union of India; and Pooja Pal v. Union of India & Ors., Mr. Amitesh Banerjee, learned Senior Standing Counsel appearing for the respondent, relied on the bail bond and PR bond. He submitted that Vishal had signed the bonds and that the signatures were evidence of Vishal's release on 9 March 2022. He placed further reliance on the permission granted by the learned Additional Chief Judicial Magistrate, Barrackpore, permitting the police to make an enquiry under Sections 155(2) and 155(3) of the Code of Criminal Procedure. He urged that the offence committed by Vishal on 9 March 2022 being non‑cognizable, permission from the Additional Chief Judicial Magistrate was mandatory for further enquiry. He submitted that the accused could not choose the investigating agency and hence the prayer of the petitioner for appointment of an independent investigating agency for investigation of the NDPS case should not be allowed. He further submitted that the investigation in the NDPS case had been completed and a charge sheet had been filed, and that the prayer for quashing the criminal case would not arise; the remedy of the accused would be under the Code of Criminal Procedure. He argued that the writ court should not enter into the domain of criminal law thereby converting itself to a special court which is empowered by law to try an offence under the Code., According to Mr. Banerjee, the mobile tower location of Vishal's phone was not clinching evidence and was not completely trustworthy; the exact location of Vishal could not be traced from the last location of the tower. He contended that the petitioner's claim that the last location of the tower was near Titagarh Police Station could not be a ground for the writ court to accept the contention that Vishal had not been released from custody on 9 March 2022. He further stated that the deletion of the CCTV footages of Titagarh Police Station of 9 and 10 March could not be a ground for the Court to presume that Vishal had not been released from the police station on 9 March 2022. He maintained that the police authorities had followed the norms laid down in Supreme Court decisions and arrested Vishal on 9 March 2022 from the shop by issuing a proper arrest memo; none of the persons present were willing to sign. Vishal was taken into police custody and then sent for medical check‑up; thereafter Vishal was released on bail bond as well as a PR bond. He argued that the factual aspects were matters of trial and the writ court should not decide such issues., The charge sheet filed in the NDPS case clearly indicates that Vishal was in possession of a codeine mixture, a contraband psychotropic substance, and that the seizure was made from Vishal's personal possession. Mr. Banerjee emphasized that the theory of \last seen together\ would not be applicable in this case. He submitted that in murder cases, when the duration between the time when the accused and the deceased were last seen alive and when the victim was found dead is so small that the possibility of any person other than the accused being the author of the crime becomes impossible, the theory is applied; but it is not applicable here. He urged that the writ court should not direct investigation by the Central Bureau of Investigation or any other independent investigating agency on the mere request of the petitioner. He stated that an aggrieved person could only claim that the offence in respect of which he has been implicated be investigated properly, but he does not have a right to claim that the investigation be conducted by any particular agency of his choice. He noted that the extraordinary powers of the Constitutional Courts directing the CBI to conduct investigation should be exercised sparingly and only under very special circumstances, namely, when there is lack of confidence in the investigating agency or in cases of national interest or to do complete justice. He urged the Court to keep in mind the self‑imposed limitation while exercising the extraordinary power under Article 226 of the Constitution of India., For the record, Vishal was granted bail by a Division Bench of this Court on 11 October 2022. The relevant portion of the order is quoted below: \We have considered the materials on record. Admittedly, the petitioner was arrested and brought to Titagarh Police Station on 09.03.2022 around 12.40 hours. Whether he was subsequently released on execution of PR bond is the moot question to determine the truthfulness of the allegation regarding recovery of narcotics from his possession on 10.03.2022 at 4.55 hours. The petitioner has filed a proceeding under Article 226 of the Constitution of India being Writ Petition Application 7882 of 2022 alleging illegal arrest and detention. A report was filed in the said proceeding wherein call detail records of the mobile of the petitioner are enclosed. We have perused the call detail records (CDRs) of the mobile of the petitioner which shows that the mobile phone of the petitioner was used at premises No. 24/20A, A.P. Devi Road, that is, Titagarh Police Station on and from 13.06 hours on 09.03.2022 and even after his alleged release on PR bond. These circumstances, prima facie, improbalise the allegation that the petitioner was a free agent at the time when he is said to be re‑arrested for the possession of narcotic. In view of the aforesaid circumstances, we are of the opinion that the petitioner has been able to rebut the statutory restrictions under Section 37 of the NDPS Act and he may be granted bail. Accordingly, the petitioner shall be released on bail upon furnishing a bond of Rs.20,000 with two sureties of like amount each, one of whom must be local, to the satisfaction of the learned Additional Chief Judicial Magistrate, Barrackpore, North 24 Parganas under the NDPS Act, North 24 Parganas, subject to the condition that he shall appear before the trial court on every date of hearing until further orders and shall not intimidate witnesses or tamper with evidence in any manner whatsoever and shall not enter the jurisdiction of North 24 Parganas and shall report and address the Officer in charge of Titagarh Police Station. It is further argued that the release of the petitioner on bail was duly reported to the jurisdictional Magistrate.\, Having heard the learned advocates for the respective parties, the Court arrives at the following conclusions: (i) The petitioner has a right to approach this Court for protection of the right to dignity and personal liberty guaranteed to her son under Article 21 of the Constitution and also to uphold the dignity of the family members. She has the right to seek a fair and impartial investigation so that truth can be unearthed. (ii) The right to life and personal liberty and also the right to dignity enshrined under Article 21 of the Constitution of India have a much wider connotation and the right to a fair and impartial investigation is an important ingredient of such right. (iii) In Basu (supra), the Hon'ble Apex Court observed that fundamental rights occupy a place of pride in the Indian Constitution; Article 21 provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. Personal liberty, thus, is a sacred and cherished right under the Constitution and includes the right to live with human dignity, a guarantee against torture and assault by the State or its functionaries. Article 22 guarantees protection against arrest and detention in certain cases and declares that no person who is arrested shall be detained in custody without being informed of the grounds of such arrest and shall not be denied the right to consult and defend himself by a legal practitioner of his choice. (iv) Observing that the worst case of violation of human rights took place during investigation, the Hon'ble Apex Court in Basu (supra) further observed in Joginder Kumar v. State of U.P. (1994 SCC (Cri) 1172) that no arrest can be made merely because it is lawful for the police officer to do so; the existence of the power to arrest is one thing, the justification for the exercise of it is quite another. No arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bonafides of a complaint and a reasonable belief both as to the person's complicity and as to the need to effect arrest. (v) In Nilabati Behera v. State of Orissa (1993 SCC (Cri) 527), the Apex Court pointed out that prisoners and detainees are not denuded of their fundamental rights under Article 21; only such restrictions as are permitted by law can be imposed on the enjoyment of the fundamental right by such persons. It is an obligation of the State to ensure that there is no infringement of the indefeasible rights of a citizen to life, except in accordance with law, while the citizen is in its custody.
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His liberty is in the very nature of things circumscribed by the very fact of his confinement and therefore his interest in the limited liberty left to him is rather precious. The duty of care on the part of the State is strict and admits of no exceptions. The wrongdoer is accountable and the State is responsible if a person in police custody is deprived of his life except according to the procedure established by law., In the matter of Romila Thapar, Justice D.Y. Chandrachud, dissenting, reiterated the principles of fair investigation and discussed various decisions. In E. Sivakumar v. Union of India (2018) 7 SCC 365, the petitioner was named in an FIR being investigated for the illegal manufacture and sale of pan masala and gutkha containing tobacco or nicotine. The petitioner challenged the High Court’s order to transfer the criminal investigation to the Central Bureau of Investigation. Justice Khanwilkar, authoring the judgment for the Bench, held that the High Court had examined all issues exhaustively and, being fully satisfied about the necessity to ensure a fair investigation, rightly issued a writ of mandamus directing the transfer to the Central Bureau of Investigation., The High Court’s judgment was upheld on the ground that the question of ensuring a fair and impartial investigation of a crime whose reach extended beyond the State of Tamil Nadu to other States and even overseas, involving high‑ranking officials of both the State and the Central Government, had been directly answered. For instilling confidence in victims and the public, the High Court found it necessary to entrust the investigation to the Central Bureau of Investigation. There is no infirmity in the conclusion reached by the High Court in the impugned judgment for having entrusted the investigation to the Central Bureau of Investigation., Drawing attention to the duty of this Court as adjudicator, it was observed that it is the bounden duty of a court of law to uphold the truth, which means the absence of deceit and fraud, and that a criminal investigation must be real and fair, not a sham. It is not acceptable for an impartial and truthful investigation to be compromised. If a grave suspicion arises regarding the investigation, should a constitutional court close its hands and accept the proposition that, as the trial has commenced, the matter is beyond it? The above observations remind this Court of its function as protector of the fundamental rights of citizens, which must be safeguarded particularly when failure to take a position may lead to a denial of justice., The writ court can enquire whether there has been any violation of Vishal’s right to personal liberty and human dignity by the overt actions of the police authorities. The dignity of family members is also a guaranteed right. As a sentinel of the Constitution, the writ court can enquire into a citizen’s complaint of infringement of fundamental rights enshrined under Article 21 of the Constitution of India. A responsibility has been cast on the State as the guardian of law and the court can play an active part to enquire whether such role has been discharged responsibly. The State is always accountable to the citizen for any lapse., In the matter of State of West Bengal v. Committee for Protection of Democratic Rights, the Hon’ble Supreme Court of India held that the Constitution is a living and organic document that must grow with the nation. Constitutional provisions must be construed broadly and liberally having regard to changed circumstances and the needs of time and polity., The observations of Justice Dickson of the Supreme Court of Canada in Hunter v. Southam Inc. (1984) 2 SCR 145 are apposite: the task of expounding a constitution is crucially different from that of construing a statute. A statute defines present rights and obligations and can be easily enacted and repealed, whereas a constitution is drafted with an eye to the future, providing a continuing framework for the legitimate exercise of governmental power and, when joined by a charter of rights, for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot be easily repealed or amended; therefore it must be capable of growth and development over time to meet new social, political and historical realities., In M. Nagaraj v. Union of India, the Constitution Bench observed that the Constitution is not an ephemeral legal document embodying a set of legal rules for the passing hour. It sets out principles for an expanding future and is intended to endure for ages, consequently to be adapted to various crises of human affairs. Therefore, a purposive rather than a strict literal approach to interpretation should be adopted, construing provisions in a wide and liberal manner so as to anticipate changing conditions and purposes., In I.R. Coelho (2007) 2 SCC 1, Chief Justice Y.K. Sabharwal, speaking for a nine‑Judge Bench of the Supreme Court of India, observed that the principle of constitutionalism requires control over the exercise of governmental power to ensure that it does not destroy the democratic principles upon which it is based, including the protection of fundamental rights. Constitutionalism advocates a check‑and‑balance model of separation of powers, requiring a diffusion of powers and independent centres of decision‑making, and underpins the principle of legality which requires courts to interpret legislation on the assumption that Parliament would not legislate contrary to fundamental rights., In the present case, the decision of the Hon’ble Supreme Court of India in Paramvir Singh Saini v. Baljit Singh (order dated 2 December 2020) directed that all States and Union Territories be impleaded to ascertain the exact position of CCTV cameras in each police station and to constitute an Oversight Committee in accordance with the order dated 3 April 2018 passed in Shafhi Mohammad v. State of Himachal Pradesh (2018) 5 SCC 311. Compliance affidavits and action‑taken reports were filed by the State of West Bengal, but the Supreme Court of India did not find the steps taken by any of the States satisfactory., The compliance affidavits filed by fourteen States and two Union Territories disclosed neither the total number of police stations nor the total number of CCTV cameras installed, their positioning, working condition, or recording capacity (whether the cameras have a recording facility and for how many days or hours). Details of the Oversight Committees, if constituted, were also omitted. The affidavits must be filed by the Principal Secretary of the State or the Secretary, Home Department of the State/Union Territory, and must include the details mentioned in paragraph 8 of the order, within six weeks from the date of the order., The observation in Shafhi Mohammad v. State of Himachal Pradesh that videography of the crime scene during investigation is of immense value in improving the administration of criminal justice was not complied with by the police authorities. The Supreme Court of India noted that technology is an important part of police administration and that new techniques and devices have evidentiary advantages, subject to safeguards. The Court approved the centrally driven plan of action prepared by the Committee of the Ministry of Home Affairs to introduce videography in investigations, particularly at crime scenes, as a best practice., In Basu v. State of West Bengal (2015) 8 SCC 744, the Supreme Court of India directed that CCTV cameras be installed in all police stations as well as in prisons to check human‑rights abuse. The Court further directed that each State create an oversight mechanism whereby an independent committee can study CCTV footage and periodically publish a report of its observations. The Central Ombudsman (COB) was instructed to issue appropriate instructions and to compile information on compliance within three months., It appears that the CCTV cameras installed at Titagarh police station did not have a backup of more than one month, whereas the Supreme Court of India in Paramvir Singh Saini v. Baljit Singh had directed that storage of CCTV footage should be for a period of eighteen months or at least one year. The order requires CCTV systems to be equipped with night vision, audio and video, and to provide clear image resolution and audio. The footage must be stored in digital video recorders or network video recorders for eighteen months; if equipment capable of such storage is not available, the State, Union Territory or Central Government must procure equipment that allows storage for the maximum period possible, but not less than one year., Even two years after the Supreme Court of India’s judgment, the CCTV camera at Titagarh police station had only one month of backup. It was the duty of the Officer‑in‑Charge to preserve the footage, as the petitioner had approached the police within a month of the first arrest on 9 March 2022. The duty and responsibility for the working, maintenance and recording of CCTV cameras rests with the police station concerned, and the Station House Officer (SHO) must immediately report any fault or malfunction to the District Level Officer in Charge (DLOC). If the cameras are not functioning, the SHO must inform the DLOC of the arrests or interrogations carried out and forward the records. The DLOC must then request the Station Level Officer in Charge (SLOC) for repair and purchase of equipment without delay., By not following the mandate of the Supreme Court of India and by failing to preserve the CCTV footage of 9 March and 10 March 2022 in any storage device, valuable evidence was lost. Such evidence could have helped the petitioner establish that her son had not been released from the police station on 9 March 2022 and was not involved in narcotics dealing as alleged, and could indicate whether Vishal remained in custody until 10 March 2022 when the Narcotic Drugs and Psychotropic Substances Act case was registered against him. The footage would also serve as an evidentiary advantage to the prosecution to prove the contrary., The method and manner in which the petitioner’s son was taken into custody and the records available regarding such action from arrest to purported release on 9 March show several discrepancies. It is unclear whether Vishal was arrested on 9 March 2022 to prevent the commission of a cognizable offence as alleged by the police, and whether the police recorded knowledge of a design to commit such an offence after Vishal returned from a medical examination on 9 March. A surety allegedly appeared before the police to release Vishal by offering a bail bond. The offence, as per the General Diary Entry, was criminal intimidation. The affidavit in opposition states that Vishal was unwilling to cooperate with the police when they questioned him at his shop on 9 March 2022, leading to his arrest., The affidavit in opposition does not aver that the police authorities were aware of any design by the accused to commit a cognizable offence, which would have compelled the Sub‑Inspector Sanjoy Naskar to invoke Section 151 of the Code of Criminal Procedure. Chapter XI of the Code of Criminal Procedure deals with preventive jurisdiction of the police. The police cannot arrest a person merely on an apprehension of breach of peace or that an offence is likely to be committed; the officer must have knowledge that the person was designing to commit a cognizable offence, and the arrest must be made only if it appears that the commission of the offence cannot be otherwise prevented., The absence of any input from the arresting officer to show that the accused was designing to commit a cognizable offence demonstrates an abuse of power by the police in curtailing Vishal Shukla’s liberty. In Ahmed Noormohamed Bhatti v. State of Gujarat, the Supreme Court of India held that Section 151 of the Code of Criminal Procedure allows a police officer to arrest without a magistrate’s order or a warrant only if the officer knows of a design to commit a cognizable offence and believes that the offence cannot be otherwise prevented. If these conditions are not fulfilled, the arresting authority may be exposed to legal proceedings. Sub‑section (2) provides that a person arrested under Section 151 shall be detained for not more than twenty‑four hours unless further detention is required or authorised under any other provision of the Code or any other law in force., Section 151 of the Code of Criminal Procedure reads: ‘A police officer knowing of a design to commit any cognizable offence may arrest, without orders from a magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented. No person arrested under sub‑section (1) shall be detained in custody for a period exceeding twenty‑four hours from the time of his arrest unless his further detention is required or authorised under any other provisions of this Code or any other law for the time being in force.’, There was no need for the police to obtain a surety bond and a personal recognizance bond. Moreover, both bonds specifically provided that Vishal would make himself available on 23 March 2022 before the Additional Chief Judicial Magistrate, when there was neither a registered FIR nor a criminal case. If the police were satisfied that Vishal could be released, there was no plausible reason for the police authority to take an undertaking from the surety and from Vishal that he would appear before the Additional Chief Judicial Magistrate on 23 March 2022, as no case had been registered at that time., The expression ‘inquiry’ and ‘investigation’ are not synonymous under the Code of Criminal Procedure. Section 2(g) defines ‘inquiry’ as every inquiry, other than a trial, conducted under the Code by a magistrate or court, while Section 2(h) defines ‘investigation’ as all proceedings under the Code for the collection of evidence conducted by a police officer or any person authorised by a magistrate. Section 9 of the Code provides that no police officer shall investigate a non‑cognizable case without an order of a magistrate having the power to try such case or commit it for trial. Thus, the police authorities did not require any order from the Additional Chief Judicial Magistrate to make any enquiry, which must have preceded the decision to arrest Vishal and then release him on bail and a personal recognizance bond., The Court accepts the contention of Mr. Banerjee that an accused cannot choose the investigating agency. In Romila Thapar, the Supreme Court of India, in the majority view, held that the issue is no longer res integra. In Narmada Bai v. State of Gujarat (2011) 5 SCC 79, the Court restated that it is trite law that accused persons do not have a say in the appointment of an investigating agency and cannot choose which agency must investigate the alleged offence. Similar pronouncements were made in Sanjiv Rajendra Bhatt v. Union of India (2016) 1 SCC 1, Union of India v. Chadha (1993) 4 SCC 260, Mayawati v. Union of India (2012) 8 SCC 106, Dinubhai Boghabhai Solanki v. State of Gujarat (2014) 4 SCC 626, and Janata Dal v. H.S. Chowdhary (1991) 3 SCC 756., The Court is of the view that once the investigation in the Narcotic Drugs and Psychotropic Substances Act case is complete and a charge sheet has been filed, the question of transferring the investigation to any other investigating agency does not arise. Moreover, the writ petition does not deal with the investigation in the NDPS case., In Sujatha Ravi Kiran v. State of Kerala, the Supreme Court of India held that the extraordinary power of constitutional courts to direct the Central Bureau of Investigation to conduct an investigation must be exercised rarely in exceptional circumstances, especially when there is a lack of confidence in the investigating agency, in the national interest, and for the purpose of complete justice. A Constitution Bench in State of West Bengal v. Committee for Protection of Democratic Rights (2010) 3 SCC 571 observed that a direction by a High Court, under Article 226 of the Constitution, to the Central Bureau of Investigation to investigate a cognizable offence alleged to have been committed within the territory of a State without the consent of that State does not impinge upon the federal structure nor violate the doctrine of separation of powers, and is valid in law., The Court emphasized that, while exercising the wide powers conferred by Articles 32 and 226 of the Constitution, courts must bear in mind self‑imposed limitations on the exercise of these constitutional powers. The plenitude of power under these articles requires great caution, and a direction to the Central Bureau of Investigation should not be passed as a matter of routine or merely because a party has leveled allegations against the local police.
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This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise the Central Bureau of Investigation would be flooded with a large number of cases and, with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations. The accused is always at liberty to raise all these points discussed hereinabove at the appropriate stage in the criminal proceeding. Every trial is a voyage of discovery, in which truth is the quest. The question of quashing the charge sheet does not arise as neither the registration of the First Information Report under Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act nor the investigation by the police were the subject matters of this proceeding., Several remedies are available to Vishal under the provisions of the Code of Criminal Procedure, 1973. All the points can also be urged at the trial. The High Court of West Bengal under Article 226 of the Constitution of India does not deem it fit and proper to quash the charge sheet. Vishal has an effective alternative remedy. However, the sequence of events and the discrepancies and irregularities which have been pointed out hereinabove indicate that the police authorities failed to discharge their duty in accordance with law. Disturbing features have been noticed by the High Court of West Bengal in the process of arrest of Vishal on 9 March 2022 and further arrest on 10 March 2022 for commission of offence. There is no evidence of his release apart from the two bonds which have been discussed earlier. There are irregularities in the procedure adopted by the police while arresting and reportedly releasing Vishal on 9 March. The inconsistencies in the actions taken by the police authorities compel this Court to conclude that there is substance in the contention of the petitioner., Jones v. National Coal Board reported by Lord Denning observed: “It’s all very well to paint justice blind, but she does better without a bandage round her eyes. She should be blind indeed to favour or prejudice, but clear to see which way lies the truth.”, In the matter of B.R. Ramabhadriah v. Secretary, Department of Food and Agriculture, the Hon'ble Supreme Court of India observed that the Court could undoubtedly take note of changed circumstances and suitably mould the relief to be granted to the party concerned in order to do complete justice. As far as possible, the anxiety and endeavour of the Court should be to remedy an injustice when it is brought to its notice rather than deny relief to an aggrieved party on purely technical and narrow procedural grounds., In the matter of Food Corporation of India v. S.N. Nagarkar, the Hon'ble Supreme Court of India also observed that in exercise of writ jurisdiction, the Court may mould the relief having regard to the facts of the case and in the interest of justice. The High Court of West Bengal can mould the relief and award compensation to the affected parties for various lapses and for failure of the State to uphold the dignity and personal liberty of an individual as enshrined in Article 21 of the Constitution. Some of such lapses are summarised below with respect to compliance of the direction of the Hon'ble Supreme Court regarding the installation and reservation of footage and data up to 18 months, proceeding in a manner not authorised by law, by detaining Vishal under Section 151 of the Criminal Procedure Code without recording any knowledge or design of commission of a cognizable offence., Vishal was released on both bail bond and personal recognizance bond with an undertaking that he would appear before the learned jurisdictional court. No case had been registered. The records do not reveal that a situation existed which required Vishal to be arrested on 9 March 2022 in order to prevent commission of a cognizable offence. The only allegation against Vishal was criminal intimidation., An FIR was already pending against Vishal at Titagarh Police Station, Case No. 129 of 2022 dated 14 February 2022, under Sections 341, 325 and 34 of the Indian Penal Code, but no steps had been taken by the police authorities in the progress of such investigation. Destruction of valuable piece of evidence namely the CCTV footage of 9 and 10 March 2022, which was important evidence in support of the petitioner’s contention, occurred. Failure to videograph the arrest and the search and seizure on the early morning of 10 March 2022 would have been the desirable and acceptable best practice, when neither independent witnesses were available nor was any magistrate present during such search and seizure., Reference to the observation of the Supreme Court of India in Shafi Mohammad (supra) is relevant. The direction in Shafi Mohammad (supra) was issued in 2018. In the matter of Kalu Singh @ Kuran and Kabir Singh v. State of West Bengal, decided in C.R.M. (NDPS) 492 of 2022 with C.R.M. (NDPS) 493 of 2022, the Hon'ble Division Bench of this High Court held as follows: In all cases involving recovery of narcotic substance, particularly recovery of narcotic above commercial quantity, seizing officers shall make a video recording of the entire procedure unless, for reasons beyond their control, they are unable to do so; (ii) Reasons for failing to videograph the recovery proceeding must be specifically recorded in the investigation records, particularly contemporaneous documents including seizure/inventory list; (iii) A Superior Police Officer not lower than the rank of Additional Superintendent of Police shall monitor recovery of narcotic substance above commercial quantity within their territorial jurisdiction and ensure due compliance of statutory provisions regarding search and seizure, including compliance of directives (i) and (ii) relating to videography of recovery and/or recording of adequate reasons for departure from such procedure; (iv) Non‑compliance of the directives (i) and (ii) relating to videography of recovery and/or failure to record just reasons in contemporaneous documents for its non‑compliance would attract departmental proceeding as far as the seizing officer is concerned; the Director General of Police shall issue necessary directions for due compliance with the aforesaid directives; (vi) The Superintendent of Police/Commissioner of Police in each district/commissionerate shall undertake training programmes to spread awareness and capacity building of officers regarding compliance of statutory requirements in the matter of search and seizure of narcotic substance under the Narcotic Drugs and Psychotropic Substances Act and compliance of the aforesaid directives relating to videograph of recovery, including collection, preservation and production of such electronic evidence in Court., In the decision of Prempal v. Commissioner of Police reported in SCC Online Delhi 1315, the Delhi High Court allowed compensation and held as follows: In Rudul Sah v. State of Bihar, (1983) 4 SCC 141, AIR 1983 SC 1086, the Supreme Court ordered compensation to be paid by the State to a person who had undergone wrongful incarceration for several years. The Court observed that the petitioner could have pursued the ordinary remedy of a suit if his claim to compensation was factually controversial, but that refusal by this Court to pass an order of compensation would be mere lip service to his fundamental right to liberty, which the State Government had grossly violated. Article 21, which guarantees the right to life and liberty, would be denuded of its significant content if the power of this Court were limited to passing orders for release from illegal detention. One of the ways to prevent violation of that right and to secure compliance with the mandate of Article 21 is to mulct the violators by the payment of monetary compensation. Administrative sclerosis leading to flagrant infringements of fundamental rights cannot be corrected by any other method open to the judiciary. The right to compensation is a palliative for the unlawful acts of instrumentalities which act in the name of public interest and present the powers of the State as a shield., Nilabati Behera v. State of Orissa, (1993) 2 SCC 746, AIR 1993 SC 16, clarified that the decision of this Court in Kasturilal, upholding the State’s plea of sovereign immunity for tortious acts of its servants, is confined to liability in tort, which is distinct from the State’s liability for contravention of fundamental rights, where the doctrine of sovereign immunity has no application. The constitutional remedy under Articles 32 and 226 of the Constitution enables award of compensation for contravention of fundamental rights, whereas Kasturilal related to damages for conversion of goods seized and not returned, and is therefore inapplicable here., While the reliefs prayed for in the writ petition are denied, the High Court of West Bengal awards compensation of Rs 2,00,000 to the entire family for the stigma, social embarrassment and indignity suffered by each of them, especially Vishal, and also for destruction of evidence (CCTV footage). The compensation shall be paid by the State within two months, and the appropriate department shall recover the same from the erring police official after an enquiry by the Commissioner of Barrackpore Commissionerate. CCTV cameras should be installed within two months in all police stations and units of the said commissionerate with at least one year backup capacity. Videography of seizure of commercial quantity of narcotics in all cases should be mandatorily done. The accused can raise all points at every stage of the criminal proceeding and avail of other remedies available under the Code of Criminal Procedure, before the competent courts of law. The writ petition is disposed of. There will be no order as to costs. Parties are directed to act on the server copy of this judgment. Mr. Banerjee, Learned Senior Standing Counsel prays for stay of the operation of this judgment and order. Prayer considered and refused. The GD entry copies have been returned to the learned Advocate for the State authorities.
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No. HHC/GAZ/L4-53/74-VI dated Shimla, 28 July 2021. In the interest of administration, the following transfers and postings of the members of the Himachal Pradesh Judicial Service in the cadre of District Judges, Additional District Judges, Senior Civil Judges and Civil Judges are hereby ordered with immediate effect., The services of Shri Arvind Malhotra, District and Sessions Judge (First Class), Shimla are placed at the disposal of the State Government for being posted as Presiding Officer, Labour Court‑cum‑Industrial Tribunal, Kangra at Dharamshala, vice Shri Yogesh Jaswal who, on being recalled, is transferred and posted as District and Sessions Judge, Kangra at Dharamshala., Shri Rakesh Kainthla, District and Sessions Judge, Hamirpur is transferred and posted as District and Sessions Judge, Mandi, vice Shri R. K. Sharma who is transferred and posted as the Director, Himachal Pradesh Judicial Academy, Shimla., Shri J. K. Sharma, District and Sessions Judge, Kangra at Dharamshala is transferred and posted as District and Sessions Judge, Hamirpur, vice Shri Rakesh Kainthla who is transferred and posted as District and Sessions Judge, Mandi., Shri Virender Sharma, Director, Himachal Pradesh Judicial Academy, Shimla is transferred and posted as District and Sessions Judge, Solan, vice Shri Bhupesh Sharma who is transferred and posted as District and Sessions Judge, Una., Shri R. K. Sharma, District and Sessions Judge, Mandi is transferred and posted as the Director, Himachal Pradesh Judicial Academy, Shimla, vice Shri Virender Sharma who is transferred and posted as District and Sessions Judge, Solan., Shri R. K. Chaudhary, District and Sessions Judge, Bilaspur is transferred and posted as District and Sessions Judge, Sirmour at Nahan, vice Shri Devender Kumar who is transferred and posted as District and Sessions Judge, Bilaspur., Shri D. R. Thakur, District and Sessions Judge, Una is transferred and posted as District and Sessions Judge (First Class), Shimla, vice Shri Arvind Malhotra whose services are placed at the disposal of the State Government for being posted as Presiding Officer, Labour Court‑cum‑Industrial Tribunal, Kangra at Dharamshala., Shri Devender Kumar, District and Sessions Judge, Sirmour at Nahan is transferred and posted as District and Sessions Judge, Bilaspur, vice Shri R. K. Chaudhary who is transferred and posted as District and Sessions Judge, Sirmour at Nahan., Shri Yogesh Jaswal, Presiding Officer, Labour Court‑cum‑Industrial Tribunal, Kangra at Dharamshala, on being recalled, is transferred and posted as District and Sessions Judge, Kangra at Dharamshala, vice Shri J. K. Sharma who is transferred and posted as District and Sessions Judge, Hamirpur., The services of Shri R. K. Tomar, District and Sessions Judge, Chamba are placed at the disposal of the State Government for being posted as Presiding Officer, Labour Court‑cum‑Industrial Tribunal, Shimla against a vacant post., Shri Sharad Kumar Lagwal, Special Judge (CBI), Shimla, on his placement as District and Sessions Judge, is transferred and posted as District and Sessions Judge, Chamba, vice Shri R. K. Tomar whose services are placed at the disposal of the State Government for being posted as Presiding Officer, Labour Court‑cum‑Industrial Tribunal, Shimla., Shri Paras Doger, Additional District Judge‑I, Kangra at Dharamshala, on his placement as District and Sessions Judge is transferred and posted as District and Sessions Judge, Kinnaur at Rampur against a vacant post., The services of Shri Jaswant Singh, Additional District Judge, Sirmour at Nahan, on his placement as District and Sessions Judge are placed at the disposal of the Honorable Acting Chief Justice for being posted as District and Sessions Judge (Leave/Training Reserve) in the Registry. This order will take effect from 01 August 2021., Shri Madan Kumar, Additional District Judge‑II, Shimla is transferred and posted as Presiding Officer, Family Trial Court, Protection of Children from Sexual Offences, Solan, vice Shrimati Praveen Chauhan who is transferred and posted as Special Judge (CBI), Shimla., Shri Hans Raj, Additional District Judge, Sundernagar is transferred and posted as Additional District Judge, Nalagarh, vice Shri Barinder Thakur who is transferred and posted as Additional District Judge, Kinnaur at Rampur., Ms. Preeti Thakur, Additional District Judge‑I, Una is transferred and posted as Additional District Judge‑I, Kangra at Dharamshala, vice Shri Paras Doger who is transferred and posted as District and Sessions Judge, Kinnaur at Rampur., Shri Barinder Thakur, Additional District Judge, Nalagarh is transferred and posted as Additional District Judge, Kinnaur at Rampur, vice Shrimati Anuja Sood who is transferred and posted as Additional District Judge, Sundernagar., Shri Krishan Kumar, Presiding Officer, Family Trial Court, Protection of Children from Sexual Offences, Kangra at Dharamshala is transferred and posted as Additional District Judge‑I, Una, vice Ms. Preeti Thakur who is transferred and posted as Additional District Judge‑I, Kangra at Dharamshala., Shri Jia Lal Azad, Additional District Judge‑II, Una is transferred and posted as Additional District Judge, Sarkaghat, District Mandi against the newly established Court of., Shrimati Aparna Sharma, Presiding Officer, Family Trial Court, Protection of Children from Sexual Offences, Mandi is transferred and posted as Additional District Judge‑II, Shimla, vice Shri Madan Kumar who is transferred and posted as Presiding Officer, Family Trial Court, Protection of Children from Sexual Offences, Solan., Ms. Anuja Sood, Additional District Judge, Kinnaur at Rampur is transferred and posted as Additional District Judge, Sundernagar, vice Shri Hans Raj who is transferred and posted as Additional District Judge, Nalagarh., Shrimati Parveen Chauhan, Presiding Officer, Family Trial Court, Protection of Children from Sexual Offences, Solan is transferred and posted as Special Judge (CBI), Shimla, vice Shri Sharad Lagwal who is transferred and posted as District and Sessions Judge, Chamba., Shri Prakash Rana, Additional District Judge, Chamba is transferred and posted as Presiding Officer, Family Trial Court, Protection of Children from Sexual Offences, Kangra at Dharamshala, vice Shri Krishan Kumar who is transferred and posted as Additional District Judge‑I, Una., Shri Pankaj Sharma, Additional District Judge‑II, Mandi is transferred and posted as Presiding Officer, Family Trial Court, Protection of Children from Sexual Offences, Mandi, vice Shrimati Aparna Sharma who is transferred and posted as Additional District Judge‑II, Shimla., Shri Rajesh Chauhan, Chief Judicial Magistrate, Solan is transferred and posted as Deputy Director, Himachal Pradesh Judicial Academy, Shimla, vice Dr. Abira Basu who is transferred and posted as Chief Judicial Magistrate, Sirmour at Nahan., Dr. Abira Basu, Deputy Director, Himachal Pradesh Judicial Academy, Shimla is transferred and posted as Chief Judicial Magistrate, Sirmour at Nahan on her request, vice Shri Pratap Thakur who is transferred and posted as Chief Judicial Magistrate, Shimla., Shri Sachin Raghu, Chief Judicial Magistrate, Kullu is transferred and posted as Chief Judicial Magistrate, Chamba, vice Shri Abhay Mandiyal who is transferred and posted as Chief Judicial Magistrate, Kinnaur., Shri Gaurav Mahajan, Administrative Officer, Himachal Pradesh State Legal Services Authority, Shimla, on being recalled, is transferred and posted as Chief Judicial Magistrate, Bilaspur, vice Shri Hitender Sharma whose services are placed at the disposal of the State Government for being posted as Administrative Officer, Himachal Pradesh State Legal Services Authority, Shimla., Shri Abhay Mandiyal, Chief Judicial Magistrate, Chamba is transferred and posted as Chief Judicial Magistrate, Kinnaur, vice Shri Hoshiar Singh Verma who is transferred and posted as Chief Judicial Magistrate, Law and Service at Kullu., Shri Pratap Thakur, Chief Judicial Magistrate, Sirmour at Nahan is transferred and posted as Chief Judicial Magistrate, Shimla, vice Dr. Parvinder Singh Arora who is transferred and posted as Chief Judicial Magistrate, Solan., Shri Arvind Kumar, Chief Judicial Magistrate, Law and Service at Kullu is transferred and posted as Chief Judicial Magistrate, Kullu, vice Shri Sachin Raghu who is transferred and posted as Chief Judicial Magistrate, Chamba., Dr. Parvinder Singh Arora, Chief Judicial Magistrate, Shimla is transferred and posted as Chief Judicial Magistrate, Solan on his request, vice Shri Rajesh Chauhan who is transferred and posted as Deputy Director, Himachal Pradesh Judicial Academy, Shimla., The services of Shri Hitender Sharma, Chief Judicial Magistrate, Bilaspur are placed at the disposal of the State Government for being posted as Administrative Officer, Himachal Pradesh State Legal Services Authority, Shimla, vice Shri Gaurav Mahajan who is transferred and posted as Chief Judicial Magistrate, Bilaspur., Shri Hoshiar Singh Verma, Chief Judicial Magistrate, Kinnaur is transferred and posted as Chief Judicial Magistrate, Law and Service at Kullu, vice Shri Arvind Kumar who is transferred and posted as Chief Judicial Magistrate, Kullu., Ms. Sheetal Sharma, Additional Chief Judicial Magistrate, Dehra is transferred and posted as Additional Chief Judicial Magistrate, Ghumarwin, vice Shri Vikrant Kaundal who is transferred and posted as Secretary, District Legal Services Authority, Kinnaur., Shri Basant Lal Verma, Secretary, District Legal Services Authority, Sirmour at Nahan is transferred and posted as Additional Chief Judicial Magistrate, Kangra, vice Shri Vivek Sharma‑II who is transferred and posted as Additional Chief Judicial Magistrate, Amb., Shri Anil Kumar, Secretary, District Legal Services Authority, Kullu & Law and Service is transferred and posted as Additional Chief Judicial Magistrate‑I, Shimla, vice Shri Sidharth Sarpal who is transferred and posted as Secretary, District Legal Services Authority, Hamirpur., Ms. Gurmeet Kaur, Secretary, District Legal Services Authority, Solan is transferred and posted as Additional Chief Judicial Magistrate, Theog, vice Shri Surya Prakash who is transferred and posted as Secretary, District Legal Services Authority, Mandi., Shri Amit Mandyal, Secretary, District Legal Services Authority, Kangra at Dharamshala is transferred and posted as Additional Chief Judicial Magistrate, Sarkaghat, vice Shri Harmesh Kumar who is transferred and posted as Secretary, District Legal Services Authority, Bilaspur., Shri Harmesh Kumar, Additional Chief Judicial Magistrate, Sarkaghat is transferred and posted as Secretary, District Legal Services Authority, Bilaspur, vice Ms. Akshi Sharma who is transferred and posted as Additional Chief Judicial Magistrate, Sundernagar., Shri Dhiru Thakur, Additional Chief Judicial Magistrate, Amb is transferred and posted as Secretary, District Legal Services Authority, Sirmour at Nahan, vice Shri Basant Lal Verma who is transferred and posted as Additional Chief Judicial Magistrate, Kangra., Shri Vivek Sharma‑II, Additional Chief Judicial Magistrate, Kangra is transferred and posted as Additional Chief Judicial Magistrate, Amb, vice Shri Dhiru Thakur who is transferred and posted as Secretary, District Legal Services Authority, Sirmour at Nahan., Shri Sidharth Sarpal, Additional Chief Judicial Magistrate‑I, Shimla is transferred and posted as Secretary, District Legal Services Authority, Hamirpur, vice Ms. Divya Jyoti Patial who is transferred and posted as Additional Chief Judicial Magistrate, Mandi., Shri Kapil Sharma, Additional Chief Judicial Magistrate‑II, Shimla is transferred and posted as Secretary, District Legal Services Authority, Solan on his request, vice Ms. Gurmeet Kaur who is transferred and posted as Additional Chief Judicial Magistrate, Theog., Shri Mohit Bansal, Chief Principal Clerk, Himachal Pradesh High Court, Shimla is transferred and posted as Additional Chief Judicial Magistrate, Nalagarh, vice Ms. Upasna Sharma who is transferred and posted as Additional Chief Judicial Magistrate, Paonta Sahib., Shri Nitin Mittal, Additional Chief Judicial Magistrate, Nurpur is transferred and posted as Additional Chief Judicial Magistrate, Hamirpur, vice Ms. Neha Dahiya who is transferred and posted as Additional Chief Judicial Magistrate, Dehra., Ms. Neha Dahiya, Additional Chief Judicial Magistrate, Hamirpur is transferred and posted as Additional Chief Judicial Magistrate, Dehra, vice Ms. Sheetal Sharma who is transferred and posted as Additional Chief Judicial Magistrate, Ghumarwin., Ms. Vijay Laxmi, Additional Chief Judicial Magistrate, Paonta Sahib is transferred and posted as Secretary, District Legal Services Authority, Kangra at Dharamshala, vice Shri Amit Mandyal who is transferred and posted as Additional Chief Judicial Magistrate, Sarkaghat., Shri Surya Prakash, Additional Chief Judicial Magistrate, Theog is transferred and posted as Secretary, District Legal Services Authority, Mandi, vice Shri Aslam Beg who is transferred and posted as Additional Chief Judicial Magistrate, Nurpur., Shri Vikrant Kaundal, Additional Chief Judicial Magistrate, Ghumarwin is transferred and posted as Secretary, District Legal Services Authority, Kinnaur, vice Shri Nikhil Aggarwal who is transferred and posted as Additional Chief Judicial Magistrate‑II, Shimla., Shri Amardeep Singh, Additional Chief Judicial Magistrate, Mandi is transferred and posted as Secretary, District Legal Services Authority, Kullu & Law and Service, vice Shri Anil Kumar who is transferred and posted as Additional Chief Judicial Magistrate‑I, Shimla., Shri Sandeep Singh Sihag, Additional Chief Judicial Magistrate, Rohru is transferred and posted as Additional Chief Judicial Magistrate, Una, vice Ms. Manisha Goyal who is transferred and posted as Additional Chief Judicial Magistrate, Rohru., Ms. Divya Jyoti Patial, Secretary, District Legal Services Authority, Hamirpur is transferred and posted as Additional Chief Judicial Magistrate, Mandi, vice Shri Amardeep Singh who is transferred and posted as Secretary, District Legal Services Authority, Kullu & Law and Service., Shri Nikhil Aggarwal, Secretary, District Legal Services Authority, Kinnaur is transferred and posted as Additional Chief Judicial Magistrate‑II, Shimla, vice Shri Kapil Sharma who is transferred and posted as Secretary, District Legal Services Authority, Solan., Shri Hakikat Dhanda, Additional Chief Judicial Magistrate, Sundernagar is transferred and posted as Central Project Coordinator, Himachal Pradesh High Court, Shimla, vice Shri Mohit Bansal who is transferred and posted as Additional Chief Judicial Magistrate, Nalagarh., Ms. Akshi Sharma, Secretary, District Legal Services Authority, Bilaspur is transferred and posted as Additional Chief Judicial Magistrate, Sundernagar, District Mandi, vice Shri Hakikat Dhanda who is transferred and posted as Central Project Coordinator, High Court of Himachal Pradesh, Shimla., Shri Aslam Beg, Secretary, District Legal Services Authority, Mandi is transferred and posted as Additional Chief Judicial Magistrate, Nurpur, vice Shri Nitin Mittal who is transferred and posted as Additional Chief Judicial Magistrate, Hamirpur., Ms. Manisha Goyal, Additional Chief Judicial Magistrate, Una is transferred and posted as Additional Chief Judicial Magistrate, Rohru, vice Shri Sandeep Singh Sihag who is transferred and posted as Additional Chief Judicial Magistrate, Una., Ms. Upasna Sharma, Additional Chief Judicial Magistrate, Nalagarh is transferred and posted as Additional Chief Judicial Magistrate, Paonta Sahib, vice Shrimati Vijay Laxmi who is transferred and posted as Secretary, District Legal Services Authority, Kangra at Dharamshala., Shri Ashok Kumar‑I, Judicial Magistrate (I), Dalhousie is transferred and posted as Judicial Magistrate (II), Dehra, vice Ms. Eeshani Sharma who is transferred and posted as Judicial Magistrate, Sundernagar., Ms. Geetika Kapila, Judicial Magistrate, Sirmour at Nahan is transferred and posted as Judicial Magistrate (II), Una, vice Ms. Vibhuti Bahuguna who is transferred and posted as Judicial Magistrate, Bilaspur., Shri Gaurav Kumar, Mobile Traffic Magistrate, Solan and Sirmour at Solan is transferred and posted as Civil Judge to the newly created Court at Jaisinghpur, District Kangra., Shri Vishal Kaundal, Civil Judge, Court‑III, Shimla is transferred and posted as Judicial Magistrate, Chamba, vice Shri Umesh Verma who is transferred and posted as Judicial Magistrate, Tissa., Shri Nav Kamal, Judicial Magistrate, Rajgarh is transferred and posted as Mobile Traffic Magistrate, Kangra and Una at Kangra against a vacant post., Shrimati Anshu Chaudhary, Civil Judge‑cum‑Judicial Magistrate‑III, Hamirpur is transferred and posted as Civil Judge Court No.1, Solan, vice Shri Rahul Kumar who is transferred and posted as Judicial Magistrate, Jogindernagar., Ms. Pratibha Negi, Judicial Magistrate‑IV, Shimla is transferred and posted as Judicial Magistrate‑III, Shimla, vice Shri Vishal Kaundal who is transferred and posted as Judicial Magistrate, Chamba., Ms. Anita Sharma, Judicial Magistrate, Jawali is transferred and posted as Judicial Magistrate‑III, Hamirpur, vice Shrimati Anshu Chaudhary who is transferred and posted as Judicial Magistrate‑I, Solan., Shri Jitender Kumar, Civil Judge, Court No.‑II, Nalagarh is transferred and posted as Civil Judge to the newly created Court at Jhandutta, District Bilaspur., Ms. Akanksha Dogra, Civil Judge‑cum‑Judicial Magistrate‑II, Palampur is transferred and posted as Civil Judge‑cum‑Judicial Magistrate, Chopal, vice Shri Vivek Kaisth who is transferred and posted as Judicial Magistrate, Jawali., Shri Vivek Kaisth, Civil Judge‑cum‑Judicial Magistrate, Chopal is transferred and posted as Civil Judge‑cum‑Judicial Magistrate, Jawali, vice Ms. Anita Sharma who is transferred and posted as Judicial Magistrate‑III, Hamirpur., Shri Kuldeep Sharma, Civil Judge Court No.II, Kangra is transferred and posted as Civil Judge, Shillai, vice Shri Tarun Walia who is transferred and posted as Judicial Magistrate‑III, Una., Shri Gaurav Chaudhary, Civil Judge‑cum‑Judicial Magistrate‑IV, Hamirpur is transferred and posted as Mobile Traffic Magistrate, Solan and Sirmour at Solan, vice Shri Gaurav Kumar who is transferred and posted as Judicial Magistrate, Jaisinghpur, District Kangra in a newly created court., Ms. Sonal Sharma, Judicial Magistrate‑V, Shimla is transferred and posted as Judicial Magistrate‑IV, Shimla, vice Ms. Pratibha Negi who is transferred and posted as Judicial Magistrate‑III, Shimla., Shri Ekansh Kapil, Judicial Magistrate‑II, Una is transferred and posted as Mobile Traffic Magistrate, Bilaspur & Hamirpur at Bilaspur against a vacant post., Shri Ravi, Judicial Magistrate, Anni is transferred and posted as Judicial Magistrate, Rajgarh, vice Shri Nav Kamal who is transferred and posted as Mobile Traffic Magistrate, Kangra and Una., Shri Vishal Tiwari, Judicial Magistrate, Sundernagar is transferred and posted as Judicial Magistrate‑II, Amb, vice Ms. Rosy Dahiya who is transferred and posted as Judicial Magistrate, Dalhousie., Shri Ashok Kumar‑II, Judicial Magistrate, Jogindernagar is transferred and posted as Judicial Magistrate, Anni, vice Shri Ravi Kumar who is transferred and posted as Judicial Magistrate, Rajgarh., Shri Tarun Walia, Civil Judge, Shillai is transferred and posted as Civil Judge‑III, Una, vice Shri Ekansh Kapil who is transferred and posted as Mobile Traffic Magistrate, Hamirpur and Bilaspur at Bilaspur., Ms. Rosy Dahiya, Civil Judge‑II, Amb is transferred and posted as Judicial Magistrate, Dalhousie, vice Shri Ashok Kumar‑I who is transferred and posted as Judicial Magistrate‑II, Dehra., Ms. Vibhuti Bahuguna, Judicial Magistrate‑III, Una is transferred and posted as Judicial Magistrate, Bilaspur, vice Ms. Nikita Tahim who is transferred and posted as Judicial Magistrate, Nalagarh., Ms. Nikita Tahim, Judicial Magistrate, Bilaspur is transferred and posted as Judicial Magistrate, Nalagarh on her request, vice Shri Jitender Kumar who is transferred and posted as Judicial Magistrate, Jhandutta, District Bilaspur in a newly created court., Ms. Swati Barwal, Judicial Magistrate‑VI, Shimla is transferred and posted as Judicial Magistrate‑V, Shimla, vice Ms. Sonal Sharma who is transferred and posted as Judicial Magistrate‑IV, Shimla., Shri Rahul, Judicial Magistrate‑I, Solan is transferred and posted as Judicial Magistrate, Jogindernagar, vice Shri Ashok Kumar‑II who is transferred and posted as Judicial Magistrate, Anni., Ms. Shweta Narula, Judicial Magistrate‑II, Solan is transferred and posted as Judicial Magistrate, Kangra, vice Shri Kuldeep Sharma who is transferred and posted as Judicial Magistrate, Shillai., Ms. Eeshani Sharma, Judicial Magistrate, Dehra is transferred and posted as Judicial Magistrate, Sundernagar, vice Shri Vishal Tiwari who is transferred and posted as Judicial Magistrate‑II, Amb., The Judicial Officers at S. No. 26, 32, 44 and 85 are not entitled to Travel Allowance/Dearness Allowance as their transfers have been made at their requests. (Virender Singh), Copy forwarded to: 1. The Principal Private Secretary to the Honorable Chief Justice, High Court of Himachal Pradesh, Shimla. 2. The Secretaries to the Honorable Judges, High Court of Himachal Pradesh, Shimla. 3. The Principal Secretary (Home) / Principal Secretary (Personnel) to the Government of Himachal Pradesh, Shimla. 4. The Registrar General / Registrar (Vigilance) / Secretary, Himachal Pradesh High Court Legal Services Committee / Registrar (Judicial) / Registrar (Rules, Judges Branch and Protocol) / Central Project Coordinator, High Court of Himachal Pradesh, Shimla. 5. The Law and Revenue‑cum‑Principal Secretary (Law) to the Government of Himachal Pradesh, Shimla. 6. All the District / Additional District and Sessions Judges / Senior Civil Judges / Secretaries, District Legal Services Authorities / Civil Judges / Mobile Traffic Magistrates in the State of Himachal Pradesh. 7. The Registrar, Honorable Lokayukta, Himachal Pradesh, Shimla. 8. All the Presidents, District Consumer Fora, Shimla, Mandi, Kangra at Dharamshala and Una. 9. The Presiding Officers, Labour Court‑cum‑Industrial Tribunal, Shimla and Dharamshala, Himachal Pradesh. 10. The Member Secretary / Administrative Officer, Himachal Pradesh State Legal Services Authority, Shimla. 11. The Director / Joint Director / Deputy Director, Himachal Pradesh Judicial Academy, Shimla. 12. The Chairman, Himachal Pradesh Waqf Tribunal, Kangra at Dharamshala. 13. The Accountant General (Audit), Himachal Pradesh, Shimla. 14. The Accountant General (Accounts & Expenditure), Shimla, Himachal Pradesh. 15. Both above‑named officers (by name) for information and necessary action. 16. All the Deputy Commissioners / Superintendents of Police, Himachal Pradesh. 17. The Special Secretary / Additional Secretary (Law) to the Government of Himachal Pradesh. 18. The Registrar (Establishment) / Registrar (Accounts) / All the Additional Registrars, High Court of Himachal Pradesh, Shimla. 19. All the Deputy Registrars / Assistant Registrars / Court Masters / Private Secretaries / Section Officers / Chief Librarian / Public Relations Officer / Estate Officer / Protocol Officer, High Court of Himachal Pradesh, Shimla. 20. The Treasury Officer, Capital Treasury, Shimla and District Treasury Officers / Treasury Offices, in Himachal Pradesh. 21. The Director of Estates, Himachal Pradesh, Shimla – 171002. 22. Personal files of the above‑named officer(s). 23. The NIC Coordinator, High Court for uploading the same in the High Court website today itself. 24. The Section Officer (Computer) of this Registry for conversion of the same into digital form on Gazette website.
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Date of decision: 22nd May, 2023. Through: Petitioner in person. (Mr. Vikrant N Goyal, Advocate for Respondent -1. Mr. Santosh Kr Tripathi, Senior Counsel, Civil, Government of National Capital Territory of Delhi with Mr. Arun Panwar, Mr. Pradyumn Rao and Ms. Mahak Rankawat, Advocate) vs. Prathiba M. Singh, Judge (Oral). This hearing has been done through hybrid mode., By way of the present petition, the Petitioner challenges the order dated 30th November, 2022 passed by the Honorable Lieutenant Governor, Delhi in Appeal No. 44/2020. By way of the said order, the application of the Petitioner seeking arms licence has been rejected., The Petitioner is a practicing advocate seeking directions for issuance of arms licence by the Joint Commissioner of Police (Licensing), which is the Licensing Authority under the Arms Act, 1959. The Petitioner had filed an application on 27th July, 2015 for issuance of an arms licence. Since the same was not disposed of, the Petitioner filed a writ petition being W.P.(C) 8808/2020 titled Advocate Shiv Kumar v. Union of India & Others seeking early decision on the same., Vide order dated 9th November, 2020, a learned Single Judge of the Delhi High Court had directed that the decision in respect of the said licensing application be taken within a period of four weeks. Thereafter, the licence application of the Petitioner was rejected by the Licensing Authority on 23rd November, 2020. An appeal against the said decision was filed by the Petitioner under section 18 of the Act, which was also rejected by the Appellate Authority i.e., the Honorable Lieutenant Governor on 30th November, 2022. The said orders are under challenge in this petition., Learned counsel for the Petitioner relies upon the judgment of the Delhi High Court in Vinod Kumar v. State 2014 (1) LRC 375 (Del) as also the judgment of the Gujarat High Court in Devshibhai Raydebhai Gadher v. State of Gujarat [C/SCA/13499/2021, decision dated 13th June, 2022] to argue that if none of the grounds under Section 14 of the Act are made out, the arms licence would have to be issued., On the other hand, learned Counsel for the Respondent relies upon the decision of the learned Single Judge of the Delhi High Court in W.P.(C) 6520/2015 titled Yashpal Singh v. Licensing Authority wherein vide order dated 2nd November, 2015, the Court has held that there can be no right to have an arms licence, which is in effect a privilege., A perusal of the impugned orders passed by the Licensing Authority as also the Appellate Authority would show that proper and due consideration has been afforded to the various facts which have been placed by the Petitioner. The Licensing Authority has observed that the primary reason on which the Petitioner seeks an arms licence is that he appears in various court proceedings on behalf of the accused persons or complainants. His apprehension is also of threats from accused persons when he appears for complainants. In respect of the said apprehension, the Licensing Authority has observed, in the impugned order, as follows: This is an application in form A‑1, under Rule 11 of The Arms Rules‑2016 from Shri Shiv Kumar son of Late Shri Rajender Singh, resident of 9526/1, Street No. 13, Multani Dharida, Pahar Ganj, Delhi, for the grant of an Arms Licence for possessing Non‑Prohibited borefire arms. The ground cited for possessing an Arms Licence is \Self Protection\. Local Police report under section 13(2) of The Arms Act has been received as \Not Recommended\ from Station House Officer Nabi Karim through Deputy Commissioner of Police/Central District. The applicant was called for assessment and was heard on 18‑11‑2020. The applicant is a practicing Advocate in Delhi. The applicant enrolled with the Bar Council of Delhi in the year 2011. The applicant is seeking an arms licence on account of self‑defence purpose only. The applicant has never been a victim of a crime. The applicant did not disclose any instance of threat to his life or property undergone by him. No personal enmity as well as dispute with anyone is disclosed. No specific threat to his life is disclosed. The applicant states that he appears in various court proceedings both on behalf of accused persons and complainants. The applicant apprehends threat from accused persons in cases where he appears on behalf of the complainants. The grounds put forward by the applicant are part of a job and may be classified as professional hazard. The applicant did not disclose any specific threat instance wherein an accused threatened him with bodily harm. There are thousands of practicing advocates in the city. If the ground put forward by the applicant were to be made a criteria for the grant of an arms licence, the Licensing Authority would be constrained to issue arms licences to practicing advocates in thousands. It is noted that most of the times advocates are engaged in court proceedings and weapon is not allowed in the court. Further, the licensed weapon cannot be kept either in a chamber or in the personal vehicle and therefore the very purpose of self‑protection is defeated. There is no justifiable reason to grant an arms licence to the applicant. In several judgments, Hon'ble Delhi High Court held that \threat perceptions can only be assessed by the investigating agency and that no one can claim an Arms Licence as a matter of legal right\ (W.P.(C) 8893/2015, Nirankar Rastogi v. Joint Commissioner of Police and Ors., Delhi High Court; W.P.(C) 6520/2015 Yashpal Singh v. Joint Commissioner of Police/Licensing, Delhi High Court; HC Bijay Prakash v. Hon'ble Lieutenant Governor, Delhi & Ors., LPA 295/16; DB Delhi High Court and LPA 44/16 Raj Kumar Pandey 937/2015; Nasim Beg v. Govt. of NCT of Delhi & Anr.). Therefore, the request of Shri Shiv Kumar son of Late Shri Rajender Singh is declined. The applicant can prefer an appeal against this order under section 18 of the Arms Act, 1959, to the Hon'ble Lieutenant Governor, Delhi within 30 days from the date of receipt of this letter., In the appeal preferred against the above order, the Appellate Authority i.e., the Honorable Lieutenant Governor has observed as follows: I have considered the submissions made by both sides and gone through the case file. I observe that as per record there seems to be no specific threat to the appellant or his family. Therefore, I am of the opinion that merely being apprehensive of his safety while practicing as an advocate is not a good enough reason for grant of an arms licence. The Licensing Authority, after considering all aspects of the matter, has passed a reasoned order keeping in view the facts and circumstances of the case. I, therefore, find no ground to interfere with it. The appeal is accordingly dismissed., The Delhi High Court has considered the provisions of the Arms Act, 1959 as also the decisions cited by the learned Counsels for the parties. Section 13 of the Act provides that an application for grant of a licence has to be made to the Licensing Authority as also the conditions under which the same would be issued. Section 14 specifies the situations wherein a Licensing Authority shall refuse to grant a licence. In the opinion of the Delhi High Court, Section 14 while setting out some of the situations in which the licence shall not be granted, does not make the same exhaustive. As held in Yashpal Singh (supra), no one can claim a right to own an arms licence. The relevant portion of the said order reads as follows: Reference may be made to the recent judgment dated 29th September, 2015 in W.P.(C) No.8000/2015 titled Rajkumar Pandey v. Additional Commissioner of Police, order dated 18th September, 2015 in W.P.(C) No.8893/2015 titled Nirankar Rastogi v. Joint Commissioner of Police and order dated 23rd September, 2015 in W.P.(C) No.8928/2014 titled Arvind Kumar Chauhan v. Lieutenant Governor, where on a conspectus of the case law on the subject, it has been held that there is no right to have an arms licence which is a privilege and it is a question of fact which is to be ascertained by the authorities concerned whether a person is entitled to the said privilege or not and no interference with such factual findings is possible in writ jurisdiction., The counsel for the petitioner at this stage states that the petitioner resides in New Usmanpur area of Delhi which is also crime‑infested and reaches his home late at night after holding conferences and has to park his car at a distance from his house. It is further stated that the petitioner as an Advocate is representing JVG group of companies, a large number of whose investors threaten the petitioner. It is further stated that the petitioner has a right to his life and has right to protect his life., None of the aforesaid contentions would make any difference. It is the duty of the State to protect life and property of the citizens. There is nothing to suggest that the said factual finding is incorrect in any way. Similarly, the fact that the petitioner is living in a crime‑infested locality or is unable to drive till inside his house would not entitle the petitioner to an arms licence. It has been held in the aforesaid judgments that threat perception also is a question of fact, finding whereby the authorities concerned are non‑interferable in writ jurisdiction., There is thus no merit in the petition. Dismissed. No costs. A Division Bench of the Delhi High Court in People for Animals v. Union of India [CM No. 11288/2002, date of decision 20th May, 2011] has held that carrying and possessing firearms is only a matter of statutory privilege and no citizen has a blanket right to carry firearms. The relevant portion of the said order reads as follows: It is well established that the matter of grant of licence for acquisition and possession of firearms is only a statutory privilege and not a matter of fundamental right under Article 21 of the Constitution of India., A Full Bench of the Allahabad High Court in Kailash Nath and Others v. State of Uttar Pradesh and Another, AIR 1985 All 291 observed that a right is distinct from a mere privilege. The case of a licencee to possess or use a firearm is materially different from a case of licence to deal in or sell firearms. Section 3 of the Arms Act, 1959 deals with acquisition and possession of firearms or ammunition on the strength of a licence whereas Section 5 provides for a licence for manufacture, sale etc. of arms and ammunition. The licence for acquisition and possession of firearms is materially different from a licence for manufacture, sale etc. While the latter confers a right to carry on a trade or business and is a source of earning livelihood, the former is merely a personal privilege for doing something which without such privilege would be unlawful. In my opinion the obtaining of a licence for acquisition and possession of firearms and ammunition under the Arms Act is nothing more than a privilege and the grant of such privilege does not involve the adjudication of the right of an individual nor does it entail civil consequences. I may, however, hasten to add that even an order rejecting the application for grant of licence may become legally vulnerable if it is passed arbitrarily or capriciously or without application of mind. No doubt, a citizen may apply for grant of a licence of firearms mostly with the object of protecting his person or property but that is mainly the function of the State. Even remotely this cannot be comprehended within the ambit of Article 21 of the Constitution which postulates the fundamental right of protection of life and personal liberty. In the same judgment it was also observed that the consistent trend of judicial decisions has been that the official granting of the licence involves the exercise of discretionary licensing powers which are concerned with privileges and not rights. See Randall v. Northcote Council (1910) 11 CLR 100, 117‑119; Metropolitan Meat Industry Board v. Finlayson (1916) 22 CLR 340; Ex P. Macarthy, re The Milk Board (1935) SR (NSW) 47; Nakkuda Ali v. Jayaratne 1951 AC 66; R v. Metropolitan Police Commissioner, ex p. Parker (1953) 1 WLR 1150; Modern Theatres (Provincial) Ltd. v. Peryman (1960) NZLR 191; see also Merchants Bank Ltd. v. Federal Minister of Finance (1961) 1 All NLR 598 (Nigeria). The decision in Nakkuda Ali v. Jayaratne 1951 AC 66 was to the effect that the Controller of Textiles in Ceylon had cancelled a textile dealer's licence in pursuance of a power to revoke a licence when he had reasonable grounds for believing its holder to be unfit to continue as a dealer. It was held that the Controller was not determining a question affecting the rights of subjects but was merely taking executive action to withdraw a privilege. It is therefore apparent that no citizen has a blanket right to carry firearms. Its grant is subject to his applying for a licence and fulfilling the qualifications and criteria spelt out in the Act and Rules. The National Rifle Association's position, therefore, that its members have a right to secure a licence, is untenable. They have, at best, a right to apply for, and be considered for the grant of a licence, subject to fulfilment of the prescribed qualifications., During the course of submissions, the Court has asked the Petitioner appearing in person as to the reasons for which he has applied for an arms licence. The only reason that is forthcoming is that the Petitioner wishes to own an arms licence for the purpose of his self‑defence/protection., Right to own a firearm is not a Fundamental Right in India. This legal position is settled in several decisions including the recent decision of the Supreme Court in Rajendra Singh v. The State of Uttar Pradesh [SLP(Crl.) No. 12831/2022, decision dated 13th February, 2023] where it has been observed as follows: It is again one of those cases where we find that according to the prosecution case, an unlicensed firearm was used in commission of the offence involving Section 302 IPC also. We have come across cases where there is this phenomenon of use of unlicensed firearms in the commission of serious offences and this is very disturbing. Unlike the Constitution of the United States where the right to bear firearms is a fundamental freedom, in the wisdom of our founding fathers, no such right has been conferred on anyone under the Constitution of India. The matter relating to regulation of firearms is governed by statute, viz., Arms Act, 1959, inter alia. It is of the greatest significance to preserve the life of all, that resort must not be made to unlicensed firearms. In particular, if unlicensed firearms are freely used, this will sound the death knell of rule of law., Arms licence is a creation of the statute and the Licensing Authority is vested with the discretion whether to grant or not grant such a licence, depending upon the fact situation in each case. All lawyers/advocates who are appearing on the criminal side for the accused or the prosecution cannot claim a right to own an arms licence, inasmuch as this could result in issuance of arms licences indiscriminately. The perceived weakness of the State, which is one of the grounds which the Petitioner has urged for seeking the arms licence, if accepted, would result in recognition of a right to own a firearm. This recognition leading to issuance of a licence and unbridled owning of firearms, could also pose a threat to the safety and security of the other citizens, which the Licensing Authority would have to keep in mind while allowing or rejecting the arms licence. The Licensing Authority has to assess the threat perception and the reasons for the request for a licence which has been given by the applicant concerned. It is only after assessing the same that such a licence can be issued. An application by an advocate merely based on the ground of appearance on behalf of the accused persons, in the opinion of the Delhi High Court, would not be sufficient to grant an arms licence., In the facts of this case, after having perused the impugned order, this Court is of the opinion that no interference is called for in writ jurisdiction as the refusal of grant of arms licence is well reasoned., The petition, along with all pending applications, is disposed of.
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Petitioner: Shahida. Respondent: State of Uttar Pradesh and three others. Counsel for Petitioner: Surendra Kumar Tripathi. Counsel for Respondent: Chief Standing Counsel. Honourable Justice Pritinker Diwaker, Honourable Justice Ashutosh Srivastava. Delivered by Honourable Justice Ashutosh Srivastava, Judge., This writ petition under Article 226 of the Constitution of India styled as Public Interest Litigation has been instituted for consideration of the representation dated 17 January 2022 (Annexure 4 to the writ petition) addressed to the District Magistrate, Mathura (respondent No. 2 herein) to grant leave to the persons / non-vegetarians of such twenty‑two wards of Mathura Vrindawan Nagar Nigam, Mathura notified as “Holy Place of Pilgrimage” under Notification dated 10 September 2021 issued by the Additional Chief Secretary, Government of Uttar Pradesh and consequently, notification imposing complete ban on running meat, fish, egg shops etc., and suspending the licence of shops, non-vegetarian hotels etc., with immediate effect and for permitting easy transportation of such restricted materials from outside for marriage and other ceremonial functions. It is also prayed that the local police may not harass such persons in transporting the restricted materials from outside into such twenty‑two notified wards., It is contended on behalf of the petitioner that she is a permanent resident of Mewati Mohalla, Matiya Gate, Govind Nagar, District Mathura and is a social worker elected as Parshad Ward No. 38, Matiya Gate, District Mathura. The State Government under Notification dated 10 September 2021 has notified twenty‑two wards of Mathura Vrindawan Nagar Nigam as “Holy Place of Pilgrimage”. A consequential order dated 11 September 2021 has been passed by the Food Processing Officer, Food Safety and Drugs Administration, Mathura wherein the registration of the shops selling meat and non-vegetarian restaurants have been suspended with immediate effect. It is contended that on account of such restrictions imposed, the non-vegetarian persons residing in the wards so notified are being deprived of their choice of meals and also from carrying on their business and livelihood. It is further argued that the restriction imposed is violative of Article 19(1)(g) and Article 21 of the Constitution of India. The authorities are also not permitting the transportation of the restricted materials from other wards where there is no such restriction for personal consumption or consumption in marriages and other ceremonial functions which restriction is most arbitrary and cannot be permitted. The representation on behalf of the residents of the wards seeking leave for easy transportation of the restricted item have not been considered and as such, the petitioner is constrained to approach this Allahabad High Court for redressal of her grievance which in fact is the grievance of the majority of the population of the wards declared as “Holy Place of Pilgrimage”., Shri Manish Goyal, learned Additional Advocate General assisted by Shri A. K. Goyal, learned Additional Chief Standing Counsel, in opposition to the writ (Public Interest Litigation), submits that Mathura and Vrindawan are prominent places having great historical and religious importance being the birthplace and play area of Lord Krishna. Lakhs and lakhs of devotees from India and abroad visit Mathura‑Vrindawan for holy darshan, blessing and virtuous upliftment. Several places of Mathura and Vrindawan are of religious and tourism importance. The State Government with a view to maintain the historical, religious, tourism importance and above all the sanctity of the holy places issued a Notification dated 10 September 2021 declaring twenty‑two wards of Nagar Nigam Mathura Vrindawan to be “Holy Place of Pilgrimage”. The State Government vide Government Order dated 17 September 2021 restricted the sale or purchase of meat, liquor and eggs in the aforesaid twenty‑two wards of Nagar Nigam Mathura Vrindawan. In other wards, there exists no such restriction. The petitioner has not challenged the Notification dated 10 September 2021 issued by the State Government nor the Government Order dated 17 September 2021 imposing restriction on sale of meat, eggs and liquor etc. It is further submitted that no fundamental right of the petitioner under Article 19(1)(g) and Article 19(6) of the Constitution of India can be said to have been infringed by imposing reasonable restrictions on twenty‑two wards only. Similar reasonable restrictions in respect of Rishikesh Municipality have been upheld in the case of Darshan Kumar and others versus State of Uttar Pradesh and another (AIR 1997 All 209) which decision has been affirmed by the Apex Court in the case of Om Prakash and others versus State of Uttar Pradesh and others reported in 2004 (3) SCC 402. It is accordingly submitted that the relief claimed in the writ (Public Interest Litigation) is not tenable and the writ (Public Interest Litigation) is liable to be dismissed., We have heard learned counsels for the parties and have perused the record. From a perusal of the averments made in the petition and the relief claimed therein, it is apparent that the Notification dated 10 September 2021 and the Government Order dated 17 September 2021 issued by the State Government have not been impugned in the writ petition. In the absence of any challenge to the above Notification and the Government Order, it can safely be presumed that the petitioner is not aggrieved by the same. This Allahabad High Court, therefore, does not deem it appropriate to dwell into the validity of the aforesaid Notification and the Government Order. The grievance of the petitioner appears to be with regard to the harassment being faced by the non‑vegetarian residents of the twenty‑two wards in transportation of such restricted materials from outside such restricted wards into the restricted wards for private consumption, for marriage and other ceremonial purposes. The Notification dated 10 September 2021 merely declares twenty‑two wards of the Nagar Nigam Mathura Vrindawan to be “Holy Place of Pilgrimage”. The petitioner cannot be said to have any grievance against the same. We also do not find any clear violation of any constitutional provision by the said Notification. It is the prerogative of the Government to declare any place as “Holy Place of Pilgrimage”. Mere declaration of any particular place as “Holy Place of Pilgrimage” does not mean that any restriction has been imposed and the said act is illegal. We are of the opinion that it is the privilege of the State to do so. India is a country of great diversity. It is absolutely essential if we wish to keep our country united to have tolerance and respect for all communities and sects. It was due to the wisdom of our founding fathers that we have a Constitution which is secular in character and which caters to all communities, sects, linguistic and ethnic groups etc., in the country. The Constitution of India is keeping us together despite all our tremendous diversity, because the Constitution gives equal respect to all communities, sects, linguistic and ethnic groups etc., in the country. The Government Order dated 17 September 2021 issued by the State Government on the other hand imposes a restriction upon the sale or purchase of meat, liquor and eggs in the twenty‑two wards of the Nagar Nigam Mathura‑Vrindawan. This restriction has been imposed only with respect to twenty‑two wards and is not applicable to other wards of the city. Thus, there is no complete ban. The allegation of the petitioner that State authorities are harassing such consumers of the restricted material (meat, liquor and eggs) in transportation of the same is merely a bald and sweeping statement. No material has been brought on record to substantiate this allegation. Though in the writ petition certain grounds have been taken by the petitioner in relation to violation of the fundamental rights and even violation has been pointed out, but surprisingly no relief has been prayed for in the writ petition. In view of the above, in absence of any challenge to the Notification dated 10 September 2021 or to the Government Order dated 17 September 2021, we deem it appropriate not to comment upon their validity or otherwise. We are not inclined to entertain this writ (Public Interest Litigation). It is accordingly dismissed.
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Date of decision: 10th December 2021. Through Mr. S. V. Rateria, Advocate, versus Through Mr. Amit Chadha, Assistant Public Prosecutor for the State with Sub-Inspector Sunil, Police Station Model Town. Ms. Mallika Parmar, Advocate for the complainant., This application under Section 438 Criminal Procedure Code has been filed for grant of bail to the petitioner in the event of arrest in FIR No. 56/2018 dated 11.02.2018, registered at PS Model Town for offences under Sections 498-A, 406 and 34 of Indian Penal Code., The relevant portion of the impugned order vide application no 1680/2018 in FIR no 56/2018 passed by the Additional Special Judge, Rohini, as extracted from the impugned order dated 04.08.2018 is as follows: Since, the custodial interrogation of the applicant is required to recover the dowry articles and Stridhan and the complainant is receiving the threat constantly on WhatsApp from the applicant. I find no ground to admit the accused on bail, at this stage. Aggrieved by this impugned order, the petitioner herein has filed the present bail application., The factual matrix which has transpired in this case is as follows: A complaint was filed by Anjali Sogarwal on 13.04.2017 to the SHO, Police Station Model Town, the DCP, Model Town and the Deputy Commissioner of Police, EOW office stating that her husband Pooran Singh, who is the petitioner herein, her mother‑in‑law Ratna Devi and both her sisters‑in‑law Kamlesh and Lata had insulted, beaten, pressurized, harassed and tortured the complainant for more dowry and threatened that if the complainant wanted a peaceful life, her father must further arrange a dowry amount of Rs. 50 lakh. It was also stated that the petitioner illegally procured the complainant’s SIM card from the service provider and uploaded pictures of his wife, i.e., the complainant, on social media websites and that the petitioner sent abusive/insulting messages from the complainant’s social media accounts to the friends of the complainant with malafide intentions. Based on the said complaint, FIR No. 56/2018, dated 11.02.2018 was registered at Police Station Model Town, North West Delhi for offences under Sections 498-A, 406 and 34 of Indian Penal Code. It is stated that on 16.02.2017, the complainant’s father transferred Rs. 90,000 into the accused’s account and Rs. 1.5 lakh into the complainant’s account which was further transferred into her husband’s account. It is further stated that on 21.01.2017, the petitioner invited three female friends of the complainant, one male friend, both the complainant’s brothers and one relative of the accused, namely Ravi. The petitioner mixed alcohol and served it to all his friends, took inappropriate photos and threatened them that he would upload them on the internet. It is also stated that the petitioner has taken the Stridhan of the complainant and forcibly given it to his mother. On 09.03.2017, the petitioner fought with the complainant and threw her out of the house and that the passport, ID and clothes of the complainant are with her husband who is the petitioner. It is also stated that the petitioner used all these documents to procure the SIM card from the service provider and logged into the complainant’s social media accounts by using the mobile number. It is also stated that the petitioner forced the complainant to bring money from her parents and the complainant had to undergo physical, mental and emotional torture. It is also stated that the petitioner forcibly committed explicit and unnatural relationship and also showed inappropriate pictures to her. It is also stated that on 25.03.2017, the petitioner was harassing the complainant after which the complainant called the Women helpline number 1091., A complaint was filed by the petitioner herein dated 20.03.2018 to the Commissioner of Police, I.P. Estate, ITO, New Delhi against the complainant i.e. Anjali Sogarwal, the complainant’s father i.e. Ramphal Singh, the complainant’s mother i.e. Sarangi, complainant’s brothers Amit Sogarwal and Mohit Sogarwal. It was stated in the complaint that Anjali Sogarwal (wife of petitioner) was not happy with her marriage and used to abuse her husband who is the petitioner. It is stated in the complaint that the petitioner was threatened by the complainant’s father stating that he works as an officer in Delhi Police Department and the accused should obey the complainant’s wishes, otherwise he would face dire consequences. It is also stated that on 10.03.2017, the wife of the petitioner left the house without giving any reason. It is also stated that the complainant lodged a written complaint at the CAW Cell, New Delhi against the petitioner herein under Section 12 of the Domestic Violence Act, 2005, which is pending before Rohini District Court, Delhi and also filed the present FIR No. 56/2018., Status report was filed which stated that on 10.06.2017, the complainant received a text message from the petitioner admitting that he was lying throughout. He also admitted that all the jewellery, passport and other personal belongings of the complainant are with the petitioner and that the petitioner hacked the Facebook account of the complainant by using her SIM which was illegally procured. Further, he exerted pressure on the complainant’s friends to extract more information on the complainant. On 30.08.2018, the petitioner moved an anticipatory bail application before this Additional Special Judge, Rohini, and this Court granted interim protection to the petitioner, subject to him joining the investigation. The petitioner joined the investigation but did not cooperate during the investigations., Mr. S. V. Rateria, learned counsel for the petitioner, states that the wedding of the petitioner and the complainant took place on 08.12.2016 and the complainant left her matrimonial house on 10.03.2017 without any rhyme or reason, and since then she has been residing at her parental house. The learned counsel submitted that the father of the complainant is Assistant Sub‑Inspector in Delhi Police and that he is threatening the petitioner and his family with dire consequences. He also submitted that the petitioner has joined the proceedings before the CAW Cell and the investigation before the concerned Investigating Officer. The learned counsel also stated that FIR No. 56/2018 does not contain any specific allegations regarding the entrustment of Stridhan against the accused. The learned counsel relied on the case of Neera Singh v. State, CRLMC‑7262/2006 regarding the justification of marriage expenses, observing that the complainant needs to provide necessary documents to make a prima facie case in her favour. The learned counsel prayed to enlarge the petitioner on bail in case of his arrest in FIR No. 56/2018., Per contra, Mr. Amit Chadha, learned Assistant Public Prosecutor for the State, and Ms. Mallika Parmar, learned advocate for the complainant, vehemently opposed the bail application by submitting that custodial interrogation of the petitioner is required to recover the dowry/Stridhan articles and the recovery of the mobile phone which was used for sending messages to the complainant and from which the complainant’s Facebook account hacking was done., Heard Mr. S. V. Rateria, learned counsel appearing for the petitioner, Mr. Amit Chadha, learned Assistant Public Prosecutor for the State and Ms. Mallika Parmar, learned advocate for the complainant and perused the material on record., The petitioner is accused of offences under Sections 498-A and 406 of Indian Penal Code. The perusal of the status report shows that the custodial interrogation of the petitioner is being sought only for recovery of Stridhan. The recovery of Stridhan alone cannot be a reason to deny anticipatory bail to the petitioner. The police are vested with sufficient powers under the Criminal Procedure Code to conduct searches of premises. Further, the material on record shows that there are cross‑complaints. The petitioner had filed a complaint in 2018 stating that the complainant’s father is threatening him. There is nothing on record to show that the petitioner and his family are in such a position that they would be able to threaten the witnesses. It is settled law that the police officer before arresting an accused who is charged with an offence punishable with imprisonment for a period of seven years must be satisfied that such arrest is necessary to prevent a person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the courts or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured. As stated earlier, the mere fact that the recovery of Stridhan cannot be the sole ground for arresting a person for an offence under Sections 498‑A and 406 of Indian Penal Code., For the above reasons, this Additional Special Judge, Rohini, Delhi District Court is inclined to grant bail to the petitioner in the event of arrest on the following conditions: (a) The petitioner shall furnish a personal bond in the sum of Rs. 50,000 with two sureties of the like amount, one of them should be a relative of the petitioner, to the satisfaction of the Investigating Officer/SHO concerned; (b) The petitioner is directed to reside at the address mentioned in the Memo of Parties i.e. House No. C‑4/7, 3rd Floor, Street No.‑1, Acharya Niketan, Mayur Vihar, Delhi, 110091. If there is any change in the address, he is directed to intimate the same to the Investigating Officer; (c) The petitioner is directed to report to the concerned police station twice a week i.e. every Tuesday and Friday and shall join the investigation as and when required by the Investigating Officer and an advance intimation of 24 hours be given to the petitioner; (d) The petitioner is directed to give all his mobile numbers to the Investigating Officer and to keep them operational at all times; (e) The petitioner is directed to attend all the proceedings of the Trial Court through Virtual Court or physically; (f) The petitioner is directed not to threaten or contact the complainant or her family. In case the petitioner attempts to do so, his protection shall stand forfeited; (g) Violation of any of the above conditions by the petitioner would result in the immediate cancellation of the bail granted., The application stands disposed of along with all pending applications, if any., Be it noted that this Additional Special Judge, Rohini, Delhi District Court has not made any observations on the merits of the case.
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Siddharth Mukesh Bhandari, Appellant, versus the State of Gujarat and others, Respondents., Feeling aggrieved and dissatisfied with the impugned interim order dated 14 February 2022 passed by the High Court of Gujarat at Ahmedabad in the respective Special Criminal Applications Nos. 9112 of 2019, 9111 of 2019 and 9475 of 2019, by which the High Court, while admitting the special criminal applications filed under Article 226 of the Constitution read with Section 482 of the Code of Criminal Procedure, granted interim relief and stayed the further proceedings of the respective criminal inquiry cases against the respondents accused, and also stayed the further investigation with respect to the criminal proceedings initiated by the petitioner‑complainant against the respondents, the original writ petitioners before the High Court, the original complainant has preferred the present appeals., At the outset, it is required to be noted that Special Criminal Application Nos. 9111 of 2019 and 9475 of 2019 arose out of FIR being M. Case No. 2 of 2019 initiated by the appellant‑original complainant, while Special Criminal Application No. 9112 of 2019 arose out of FIR being M. Case No. 3 of 2019. The private respondents, the original accused, approached the High Court of Gujarat at Ahmedabad by way of Special Criminal Applications Nos. 9112 of 2019, 9111 of 2019 and 9475 of 2019 to quash the criminal proceedings in exercise of powers under Article 226 of the Constitution read with Section 482 of the Code of Criminal Procedure. The said special criminal applications were filed before the High Court on 1 October 2019. Before any further investigation was carried out by the Investigating Officer, the learned Single Judge of the High Court, vide a common order dated 10 October 2019, passed an ex‑parte ad‑interim order directing that no coercive steps be taken against the original writ petitioners accused., The common interim order dated 10 October 2019 was the subject matter of special leave petitions before the Supreme Court of India. By order dated 9 December 2019, while issuing notice to the respondents, the Supreme Court stayed the interim order dated 10 October 2019. In continuation of that order, the Supreme Court passed a further order on 17 December 2019 observing that it shall be open for the accused respondents to seek anticipatory bail in accordance with law, which may be considered expeditiously. No record shows that thereafter any further proceedings were initiated by the respondents accused seeking anticipatory bail. The special leave petitions filed before the Supreme Court against the common order dated 10 October 2019 were converted into Criminal Appeals Nos. 1657, 1658, 1659 and 1660 of 2021. By a detailed judgment and order dated 17 December 2021, and after considering the decision of the Supreme Court in the case of M/s. Neeharika Infrastructure Pvt. Ltd. versus State of Maharashtra and others, AIR 2021 SC 1918, the Supreme Court quashed and set aside the interim orders dated 10 October 2019 passed in the respective special criminal applications. Despite the above order, the learned Single Judge of the High Court of Gujarat at Ahmedabad, while admitting the respective special criminal applications, again granted the impugned interim reliefs staying further criminal proceedings and consequently staying further investigation., We have heard Shri Harshit Tolia, learned Advocate appearing on behalf of the petitioner‑appellant original complainant; Shri K. M. Natraj, learned Additional Solicitor General appearing on behalf of the respondent State of Gujarat; and Shri P. S. Patwalia and Shri Maninder Singh, learned Senior Advocates appearing on behalf of the respondents, the original writ petitioners accused., Shri K. M. Natraj, learned Additional Solicitor General, filed a status report on the investigation carried out by the Investigating Officer after the order passed by the Supreme Court dated 9 December 2019 staying the earlier interim order dated 10 October 2019. The status report shows that the actual investigation started only after June 2020 and has proceeded at a snail’s pace. At every stage the investigation has been stalled, including after the impugned order, which cannot be said to be in the interest of the prosecution or the investigating agency. As observed by the Supreme Court in the earlier round of litigation (Criminal Appeals Nos. 1657, 1658, 1659 and 1660 of 2021), the investigating agency has the right to investigate criminal proceedings and only in the rarest of rare cases may the investigation be stalled or stayed., After making some submissions, Shri Maninder Singh and Shri Patwalia, learned Senior Advocates for the original writ petitioners accused, stated at the Bar that they do not invite any further reasoned order if this Court intends to quash and set aside the impugned interim order passed by the High Court of Gujarat at Ahmedabad dated 14 February 2022 in the respective Special Criminal Applications Nos. 9112 of 2019, 9111 of 2019 and 9475 of 2019. However, they requested suitable observations that the respective special criminal applications be decided and disposed of in accordance with law and on their own merits. Accordingly, we are not passing any further detailed reasoned order while quashing and setting aside the impugned interim order. It is sufficient to say that the learned Single Judge of the High Court has seriously erred in passing the impugned interim orders, which are contrary to our earlier judgment and order in the case of M/s. Neeharika Infrastructure Pvt. Ltd. and to Criminal Appeals Nos. 1657 to 1660 of 2021., It appears from the impugned order that the learned Single Judge did not properly appreciate or consider our earlier judgment and order in M/s. Neeharika Infrastructure Pvt. Ltd. The Judge also failed to understand the ratio of that decision. The Judge seemed to think that after giving reasons, the High Court can grant an interim stay of further investigation in a petition seeking quashing of the criminal complaint filed under Article 226 of the Constitution read with Section 482 of the Code of Criminal Procedure. The High Court has not properly appreciated the principles and law laid down by the Supreme Court in that case. The Supreme Court emphasized that a grant of any stay of investigation or any interim relief while exercising powers under Section 482 of the Code of Criminal Procedure would be only in the rarest of rare cases, and that the Investigating Officer has the right to investigate the criminal proceedings. In our earlier judgment we abstracted those principles in paragraph 4., Despite the earlier judgment and order of the Supreme Court quashing and setting aside the earlier interim orders of the High Court, the learned Single Judge again granted the same interim relief, which is contrary to our earlier judgment in M/s. Neeharika Infrastructure Pvt. Ltd. We are not observing anything further as the learned Senior Advocates for the original writ petitioners accused have prayed not to pass any further reasoned order., In view of the submissions of the learned Senior Advocates for the original writ petitioners accused and the private respondents, we set aside the impugned order dated 14 February 2022 passed in the respective Special Criminal Applications Nos. 9112 of 2019, 9111 of 2019 and 9475 of 2019. Consequently, there shall be no interim relief during the pendency of the aforesaid special criminal applications. The Investigating Officer is directed to complete the investigation at the earliest, preferably within three months from today, and to file an appropriate report or charge sheet before the concerned criminal court having jurisdiction. The High Court of Gujarat at Ahmedabad shall consider the special criminal applications in accordance with law and on their own merits. It is also observed that it will be open for the respective accused original writ petitioners to move appropriate applications for seeking anticipatory bail, as observed in our earlier order dated 17 December 2019, and if filed, the same shall be considered in accordance with law and on its own merits. The present appeals are allowed accordingly. Any pending application, if any, also stands disposed of.
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Criminal Miscellaneous Case No. 3654/2021 Dated this the 23rd day of February, 2022 Is the Creator or Administrator of a WhatsApp group criminally liable for offensive content posted by a group member?, Gone are the days, when we used short message service or a formal website chat-box to communicate with our kith and kin. They were replaced by personalised messaging apps like WhatsApp, Facebook Messenger, Viber etc. Launched in 2009, WhatsApp is a relatively latecomer to social media. Yet, it is reported to be growing faster than other social media platforms especially in recent years. According to the official note of WhatsApp, it serves more than 2 billion people in over 180 countries, with over a billion daily active users. Recent data shows WhatsApp topped the list of the most popular global mobile messaging apps in 2021. Currently, more than 100 billion messages are sent each day on WhatsApp, making it the most active messaging app in the world. This Android based multiplatform messaging app lets its users make video and voice calls, send text messages, share their status, photos, videos and more with no fees or subscriptions., WhatsApp has proved its relevance in exchange of information very fast. One of the unique features of this application is that it also enables formation of groups of people to chat and call thereon. WhatsApp groups bring together several people on a common platform, thereby enabling easier communication amongst them. The person who creates a WhatsApp group is called Administrator (Admin) of the group. He may also make other members of the group as Group Admin. These Admins have certain powers bestowed upon them, i.e., adding/removing a member etc. Due to lack of moderation of these groups, the members therein are at almost free reign to post/share any kind of data that they wish in terms of messages, voice notes, videos, songs etc. Many members of a WhatsApp group may put objectionable contents. The legal consequences and potential liability of the Administrator, stemming from such an objectionable post has come up for consideration in this Criminal Miscellaneous Case., The petitioner herein created a WhatsApp group by name FRIENDS. Being the creator, he was the Admin. There were two more Admins; the accused No.1 and CW4. On 29/03/2020 at 08.37 p.m., the accused No.1 posted in the group a porn video depicting children engaged in sexually explicit act. On 15/06/2020, the Ernakulam City police registered crime against the accused No.1 as Crime No. 864/2020 for the offences under Sections 67B (a)(b) and (d) of the Information Technology Act, 2000 (for short, the IT Act) and Sections 13, 14 and 15 of the Protection of Children from Sexual Offence Act, 2012 (for short, the POCSO Act). Later on, the petitioner was arrayed as the accused No.2 being the Creator of the group and Co‑Administrator. After investigation, final report was filed and the case is now pending as Special Court No.61/2021 at the Additional Sessions (Cases Relating to Atrocities and Sexual Violence Against Women and Children) Court, Ernakulam. According to the petitioner, even if the entire allegations in the First Information Report (FIR) statement or final report together with all the materials collected during the investigation are taken together at their face value, they do not constitute the offences alleged. It was in these circumstances this Criminal Miscellaneous Case has been filed invoking Section 482 of the Code of Criminal Procedure to quash all further Criminal Miscellaneous Case No. 3654/2021 proceedings against the petitioner., I have heard Sri. Anil Kumar M. Sivaraman, the learned Counsel for the petitioner and Smt. Pushpalatha, the learned Senior Public Prosecutor., Admittedly the objectionable post in question was posted by the accused No.1 and the petitioner was arrayed as the co‑accused merely in his capacity as the Creator/Administrator of the group. The question is, whether the petitioner could be vicariously held liable for the act of the accused No.1?, Vicarious liability is a form of a strict, secondary liability that arises under the common law doctrine of agency; respondent superior the responsibility of the superior for the acts of their subordinate, or, in a broader sense, the responsibility imposed on one person for the wrongful actions of another person. Such a liability arises usually because of some or the other legal relationship between the two. This often occurs in the context of civil law for example, in employment cases. In a criminal context, vicarious liability assigns guilt, or criminal liability, to a person for wrongful acts committed by someone else., Generally, a person can be criminally liable for the acts of another if they are a party to the offence. Now, strict vicarious criminal liability is somewhat of an exception to the general rule of direct personal culpability and is a modern development through statutory provisions. Such criminal vicarious liability can be attributed only if it is provided under a particular statute. Indian Penal Code (for short, the IPC) makes a departure from the general rule in few cases, on the principle of respondent superior. In such a case, a master is held liable under various Sections of the IPC for acts committed by his agents or servants. Section 149 of the IPC provides for vicarious liability. It states that if an offence is committed by any member of an unlawful assembly in prosecution of a common object thereof, or such as the members of that assembly knew that the offence was likely to be committed in prosecution of that object, every person who, at the time of committing that offence, was member, would be guilty of the offence committed. Section 154 of the IPC holds owners or occupiers of land, or persons having or claiming an interest in land, criminally liable for intentional failure of their servants or managers in giving information to the public authorities, or in taking adequate measures to stop the occurrence of an unlawful assembly or riot on their land. The liability on the owners or occupiers of land has been fixed on the assumption that such persons, by virtue of their position as landholders, possess the power of controlling and regulating such type of gatherings on their property, and to disperse if the object of such gatherings becomes illegal. Section 155 of the IPC fixes vicarious liability on the owners or occupiers of land or persons claiming interest in land, for the acts or omissions of their managers or agents, if a riot takes place or an unlawful assembly is held in the interest of such class of persons. Section 156 of the IPC imposes personal liability on the managers or the agents of such owners or occupiers of property on whose land a riot or an unlawful assembly is committed. Section 268 of the IPC explicitly deals with public nuisance. Under this Section, a master is made vicariously liable for the public nuisance committed by the servant. Section 499 of the IPC makes a master vicariously liable for publication of a libel by his servant. Defamation is an offence under this Section. The doctrine of vicarious liability is more frequently invoked under special enactments, such as Defence of India Rules 1962, the Indian Army Act, 1911, the Prevention of Food Adulteration Act, 1954 etc. A master is held criminally liable for the violation of rules contained under the aforesaid statutes, provided that his agent or servant, during the course of employment, committed such act. The Income Tax Act, 1961, the Drugs and Cosmetics Act, 1940 and the Negotiable Instruments Act, 1881 contain specific provisions which make the person running the affairs of a company vicariously liable for the offences committed by the company (See Priya Ashwini, Vicarious Liability Under Criminal Law in India, International Journal of Law and Legal Jurisprudence Studies: ISSN 2348-8212: Volume 3 Issue 3)., The Supreme Court of India has dealt with the issue of criminal vicarious liability many a time. In Sham Sunder v. State of Haryana [(1989) 4 SCC 630], it was held thus: \But we are concerned with a criminal liability under penal provision and not a civil liability. The penal provision must be strictly construed in the first place. Secondly, there is no vicarious liability in criminal law unless the statute takes that also within its fold. Section 10 does not provide for such liability. It does not make all the partners liable for the offence whether they do business or not.\ In Hira Lal Hari Lal Bhagwati v. Central Bureau of Investigation, New Delhi [(2003) 5 SCC 257], it was observed thus: \In our view, under the penal law, there is no concept of vicarious liability unless the said statute covers the same within its ambit. In the instant case, the said law which prevails in the field i.e. the Customs Act, 1962 the appellants have been thereinunder wholly discharged and the GCS granted immunity from prosecution.\ In R. Kalyani v. Janak C. Mehta and Others [(2009) 1 SCC 516], it was held thus: \Allegations contained in the FIR are for commission of offences under a general statute. A vicarious liability can be fastened only by reason of a provision of a statute and not otherwise. For the said purpose, a legal fiction has to be created. Even under a special statute when the vicarious criminal liability is fastened on a person on the premise that he was in charge of the affairs of the company and responsible to it, all the ingredients laid down under the statute must be fulfilled. A legal fiction must be confined to the object and purport for which it has been created.\, Thus, a vicarious criminal liability can be fastened only by reason of a provision of a statute and not otherwise. In the absence of a special penal law creating vicarious liability, an Admin of a WhatsApp group cannot be held liable for the objectionable post by a group member. The petitioner has been charged with Sections 67B (a), (b), and (d) of the IT Act and Sections 13, 14 and 15 of the POCSO Act. None of these provisions provide for such liability. There is no law by which an Admin of any messaging service can be held liable for a post made by a member in the group. A WhatsApp Admin cannot be an intermediary under the IT Act. He does not receive or transmit any record or provide any service with respect to such record. There is no master‑servant or a principal‑agent relationship between the Admin of a WhatsApp group and its members. It goes against basic principles of criminal law to hold an Admin liable for a post published by someone else in the group. It is the basic principle of criminal jurisprudence that mens rea must be an ingredient of an offence and both the act and intent must concur to constitute a crime., In Kishor Chintaman Tarone v. State of Maharashtra & Another (2021 ICO 1285), the Bombay High Court dealt with similar issue in terms of the liability of the Admin resulting from an indecent post shared by another member on the WhatsApp group. It was held that a Group Administrator cannot be held vicariously liable for an act of a member of the Group, who posts objectionable content, unless it is shown that there was common intention or pre‑arranged plan acting in concert pursuant to such plan by such member of a WhatsApp Group and the Administrator. In Ashish Bhalla v. Suresh Chawdhary & Ors (2016 SCC OnLine Del 6329), the Delhi High Court observed that defamation and defamatory statements made by any member of the group cannot make the Administrator liable therefor. Recently, the Madras High Court in R. Rajendran v. the Inspector of Police and Another (Crl.O.P. (MD) No. 8010/2021 decided on 15/12/2021), following Bombay High Court's Judgment directed the investigating officer to delete the name of the WhatsApp group Administrator while filing final report if his role is merely of an Administrator and nothing else., As has been held by both the Bombay and Delhi High Courts, the only privilege enjoyed by the Admin of a WhatsApp group over other members is that he can either add or delete any of the members from the group. He does not have physical or any control otherwise over what a member of a group is posting thereon. He cannot moderate or censor messages in a group. Thus, Creator or Administrator of a WhatsApp group, merely acting in that capacity, cannot be vicariously held liable for any objectionable content posted by a member of the group., Coming to the facts, there is no specific allegations as to how and on what basis the petitioner has committed the alleged offences. CWs 2 to 8, who were members of the group, in their statement to the police, did not say anything against the petitioner. According to them, they were added in the group by the accused No.1. They specifically stated that the post in question was posted by the accused No.1. They did not attribute anything against the petitioner with regard to the said post. None of the case diary witnesses has any case that there was a pre‑arranged plan by the accused No.1 and the petitioner and they acted in concert pursuant to such plan. There is nothing on record to suggest that the petitioner has published or transmitted or caused to be published or transmitted in any electronic form the alleged obscene material or he browsed or downloaded the said material or, in any way, facilitated abusing children online so as to attract Sections 67B (a), (b) or (d) of the IT Act. Similarly, the prosecution has no case that the petitioner used children in any form of media for his sexual gratification or used them for pornographic purpose or stored, for commercial purpose, any child pornographic material in order to attract Sections 13, 14 or 15 of the POCSO Act. Since the basic ingredients of the offences alleged are altogether absent as against the petitioner, I am of the view that it is a fit case where the extraordinary jurisdiction vested with the Additional Sessions (Cases Relating to Atrocities and Sexual Violence Against Women and Children) Court, Ernakulam under Section 482 of the Code of Criminal Procedure could be invoked. For the reasons stated above, the entire proceedings in Special Court No.61/2021 at the Additional Sessions (Cases Relating to Atrocities and Sexual Violence Against Women and Children) Court, Ernakulam as against the petitioner is hereby quashed. Criminal Miscellaneous Case, accordingly, stands allowed. Rp Criminal Miscellaneous Case No. 3654/2021
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The tone for this judgment can be set by adverting to the words of Saint Augustine (354‑430 A.D.) in his book, The City of God, Volume 1 (426 A.D.): Without justice, what else is the State but a great band of robbers?, The petitioners, being the owners of the lands in question, approach the Karnataka High Court with Writ Petition No. 61426 of 2016 challenging their acquisition by the Preliminary Notification dated 09‑01‑2007 issued under Section 28(1) and the Final Notification dated 17‑05‑2007 issued under Section 28(4) of the Karnataka Industrial Areas Development Act., Learned counsel for the petitioners seeks voiding of the acquisition on the following grounds: the petitioners were already owners of the subject lands and therefore their names ought to have been recorded in the acquisition notifications; the petitioners, by a letter dated 09‑01‑2013, requested the Karnataka Industrial Areas Development Board (KIADB) to pass the award and pay compensation, but there has been a stony silence, and payment of compensation is a precondition for sustaining acquisition; alternatively, compensation should be paid to the petitioners under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, especially when the KIADB has allotted the subject lands by charging a sum of approximately Rs 7.5 crore after giving a rebate of 50 percent to the allottees; there is an enormous unjustified delay in making the payment of compensation, which militates against the spirit of Article 300A of the Constitution guaranteeing the right to property; to date no payment has been made and nothing is stated about the same in the Statement of Objections filed by the KIADB., After service of notice, the State entered appearance through the learned Advocate General, and the KIADB was represented by its senior panel counsel, who filed a Statement of Objections opposing the acquisition. The panel counsel contended that, since the acquisition was completed by the issuance of the Final Notification on 17‑05‑2007, the lands had vested in the State and therefore could not be restored to the petitioners. After the land owners notified the change of khata pursuant to the sale deeds, the Government issued a Corrigendum Notification on 05‑06‑2014 mentioning their names; because of procedural delays, the payment of compensation was said to be forthcoming. Accordingly, the respondents sought dismissal of the writ petition., Having heard the learned counsel for the parties and having perused the petition papers, the Karnataka High Court, although rejecting the challenge to the acquisition of the lands, is inclined to grant relief with respect to the non‑payment of compensation for the following reasons:, The first petitioner bought five acres and one gunta of land in Survey No. 132 of Jonnahalli in Devanahalli Taluk by three registered sale deeds dated 27‑01‑2007, and his name was mutated in the revenue records by M.R. Nos. 48, 49 & 50 of 2006‑07 dated 22‑03‑2007. The second petitioner bought only thirty‑eight gunta of land in Survey No. 66/6 of the same village by two sale deeds both dated 23‑12‑2006, and his name was mutated in the revenue records by M.R. No. 43/2006‑07 dated 14‑04‑2007 and M.R. No. 60/2006‑07 dated 21‑04‑2007. Consequently, as on the date of the Preliminary Notification, 09‑01‑2007, the names of the petitioners had not appeared as khatedars in the revenue records, and the KIADB was justified in notifying the acquisition in the names of the vendors, who were then the khatedars., The vendors had not filed objections to the acquisition since they had lost ownership of the lands by virtue of the registered sale deeds. However, the petitioners, along with other land owners, filed objections on 15‑02‑2007 (Annexure Q1), pursuant to the notice dated 11‑01‑2007 issued by the State Legal Aid Officer under Section 28(2) of the 1966 Act. They informed the KIADB that the land was adjacent to the village and close to the flying zone of the International Airport at Devanahalli. No records were shown by the responding parties as to any objective consideration of their objections., The petitioners, by their representation dated 09‑01‑2013, requested the KIADB to pay compensation for the taking of their lands; a copy of this representation is produced by the KIADB itself as Annexure‑R1 to its Statement of Objections. They also sent reminders on 01‑07‑2014 and 03‑07‑2014. The Government issued a Corrigendum Notification dated 05‑06‑2014 mentioning their names, thereby entitling them to payment of compensation. However, compensation has not been paid to date, and no plausible explanation has been given for the withholding of compensation for more than a decade and a half., Payment of compensation is essential when private property is acquired for public purpose; this mandate is implicit in Article 300A of the Constitution. The obligation to pay compensation for property compulsorily acquired is not merely an ancillary element of eminent domain but an essential condition for the valid exercise of that power. The obligation arises from the natural right of the individual deprived of his property, counterbalancing the sovereign power to take property. In his 1792 essay on property, published in the National Gazette, James Madison, chief architect of the Fifth Amendment takings clause of the United States Constitution, wrote: “Government is instituted to protect property of every sort… This being the end of government, that alone is a just government, which impartially secures to every man whatever is his own.”, The petitioners’ property vested in the State by the Final Notification dated 17‑05‑2007. The Government issued the Corrigendum Notification dated 05‑06‑2014. The petitioners filed the writ petition on 28‑11‑2016, and a coordinate bench directed issuance of notice on 16‑01‑2017. After service of notice, the KIADB ought to have arranged for payment of compensation. Instead, it filed its Statement of Objections dated 09‑04‑2021 seeking dismissal of the writ petition, contending that it had already developed the land and allotted it to several entrepreneurs, as shown by allotment letters dated 09‑05‑2019, 18‑05‑2019 and 10‑06‑2019. Apart from mentioning rival claimants for compensation, there is no justification for withholding payment when the Corrigendum Notification of 05‑06‑2014 expressly named the petitioners., The government cannot act as a robber of citizens’ lands; taking private lands for a purported public purpose without compensation contravenes the spirit of the constitutional guarantee under Article 300A, even though the right to property is no longer a fundamental right. The State and its instrumentalities are constitutionally expected to conduct themselves with fairness and reasonableness. The KIADB and its officials, who fall within the description of the State under Article 12 of the Constitution, fall short of the fairness standards expected of them., The lands of the petitioners were acquired in 2007; their names were entered by virtue of the Corrigendum Notification dated 05‑06‑2014. Several representations have been made for payment of compensation. The sites formed on the petitioners’ lands have fetched Rs 7.5 crore to the KIADB, after a rebate of 50 percent of market value; otherwise the amount would have been Rs 15 crore. In the entire Statement of Objections, neither the State nor the KIADB has addressed the compensation payable to the petitioners. Their failure to pay reinforces a feudalistic attitude contrary to the transformative character of the Constitution. The non‑payment violates property rights guaranteed under Article 300A and undermines the objectives of a welfare state., Uttar Pradesh (2011) 5 SCC 545 observed that while examining a land‑owner’s challenge to acquisition under Article 226, the High Court should not adopt a pedantic approach but decide the matter keeping in view the constitutional goals of social and economic justice, noting that although the right to property is no longer a fundamental right, it remains an important constitutional right and, under Article 300A, no person can be deprived of his property except by authority of law., Justice Oliver Wendell Holmes, in Davis v. Mills, 194 U.S. 451 (1904), observed: “Constitutions are intended to preserve practical and substantial rights, not to maintain theories.”, Learned counsel for the petitioners submitted that compensation should be fixed on the principles enacted in the 2013 Act, given the enormity of delay and callousness of the respondents in withholding payment for about a decade and a half despite receiving approximately Rs 7.5 crore from the allottees after a 50 percent rebate. The counsel relied on a coordinate bench decision in W.P. Nos. 108802/2016 c/w 107748/2014, 100762/2017 (Sheenappa v. State of Karnataka) dated 18‑07‑2022 directing payment of compensation under the 2013 Act. However, that decision has been stayed by a Division Bench in W.A. No. 100393/2022. Nevertheless, the petitioners should be paid at least 50 percent of the compensation computed under the 2013 Act, along with solatium, interest and other benefits. In view of the stay, the provisions of the 2013 Act are to be used only for determining or re‑fixing the compensation amount on a normative basis until the decision in the writ appeal is rendered., In the above circumstances, the Karnataka High Court makes the following directions: (i) The writ petition succeeds in part. Although the challenge to the acquisition of the subject lands is negatived, a writ of mandamus is issued to Respondents Nos. 2 to 4 to determine and re‑fix the compensation at the rate of 50 percent to be computed under Section 77 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, along with solatium, interest and other benefits; (ii) Respondents Nos. 2 to 4 are directed to pay the petitioners, within eight weeks, the amount of compensation determined as per paragraph (i), with additional interest at the rate of 12 percent per annum computed from the date possession of the subject lands was taken away; (iii) In the event that Writ Appeal No. 100393/2022 is dismissed, upholding the coordinate bench judgment, the petitioners shall be paid the compensation determined under the 2013 Act minus what is paid pursuant to the above directions; (iv) The KIADB shall pay the petitioners costs computed at the rate of Rs 25,000 per acre. The time for compliance with all the above directions is three months. Should delay be brooked, the petitioners shall be paid an additional interest at the rate of 2 percent per month, recoverable from the erring officials of the State/KIADB in accordance with law., The Karnataka High Court places on record its deep appreciation for the research and assistance rendered by its official Law Clerk cum Research Assistant, Mr Faiz Afsar Sait. Before parting with this case, the Court expresses its deep anguish at the culpable action of the KIADB and its officials in putting the petitioner land‑losers to great hardship and misery.
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id_1635
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WPA 5441 of 2023 X (Redacted) – Versus The State of West Bengal & Others. Kaushik Gupta, Arijit Bhusan Bagchi for the petitioner; Debasish Ghosh, Debapriya Chatterjee for the State; Ms. Soma Chowdhury Bandhu for the respondent., The petitioner before the High Court of West Bengal is a minor and is a victim of trafficking and rape. The petitioner is aggrieved by an order dated 14 September 2022 passed by the District Legal Services Authority, North 24 Parganas, Barasat, by which the petitioner’s appeal from the first order of 4 December 2019 was dismissed., To explain the cause of the petitioner’s grievance, the first Court had computed the interim compensation payable to the petitioner under the West Bengal Victim Compensation Scheme, 2017 and the schedule appended thereto for an amount of Rs 1,25,000 for rape and Rs 25,000 for sexual assault., The petitioner challenged this order before the appellate authority, which is the District Legal Services Authority, and the appellate authority agreed with the view taken by the first Court and held that the petitioner’s compensation would be in accordance with the 2017 Scheme and was not inclined to interfere with the said order., Learned counsel appearing for the petitioner claims compensation in accordance with the specific Scheme of the National Legal Services Authority which provides for a minimum compensation of Rs 4,00,000 for a woman who is a victim of rape and Rs 7,00,000 as the upper limit. Counsel submits that by an order dated 5 September 2018 in Nipun Saxena & Anr. vs Union of India, a three‑Judge Bench of the Supreme Court made the Scheme and the Guidelines operational from 2 October 2018., Counsel also relies on a judgment of the Supreme Court in Suresh & Another vs State of Haryana (2015) which held, inter alia, that the States shall adopt a higher scale of the Schemes notified for the victim., Learned counsel appearing for the State Legal Services Authority and the District Legal Services Authority submits that the petitioner is entitled to receive compensation under the State Scheme of 2017. Counsel further submits that the Scheme of the National Legal Services Authority and the amounts recommended under the Scheme are not made available to the State Legal Services Authority or the State Government and hence the respondents cannot award compensation in accordance with the National Legal Services Authority Scheme., The High Court of West Bengal is unable to comprehend why the National Legal Services Authority’s Compensation Scheme for Women Victims/Survivors of Sexual Assault and other Crimes, 2018 would not be available to the State Legal Services Authority or the District Legal Services Authority and the victims in the State would be deprived of the amounts recommended under the said Scheme. The answer to this question is crucial since the Schemes of the National Legal Services Authority are made to benefit all women victims of crimes regardless of the particular State in which they are located., Learned counsel appearing for the petitioner is therefore directed to make the National Legal Services Authority a party to the writ petition and to serve a copy of the writ petition to the National Legal Services Authority. A copy of this order shall also be communicated. Leave is given to the counsel appearing for the petitioner to amend the cause title of the present writ petition. Moushumi Bhattacharya, Judge.
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Reserved on 17 January 2023 and pronounced on 29 March 2023. The appeal is presented through Mister S.N. Parashar, Advocate, versus through Mister Ravi Sabharwal, Advocate. The present appeal emanates from the judgment dated 12 January 2015 (Impugned Award) passed by the learned Presiding Officer, Motor Accident Claims Tribunal, Dwarka Courts, New Delhi in Motor Accident Claims Petition No. 27/2013 titled as Shrimati Sushila Devi and Others v. Shri Sandeep Kumar and Others, whereby the Petitioners/Claimants were awarded an amount of Rs. 17,49,491 as compensation with interest at 7.5 percent per annum from the date of filing the petition till realization by Respondent No.3, the Insurance Company. A deduction of 20 percent was also made towards contributory negligence in the awarded amount. The Appellants, by way of the present appeal, are seeking enhancement of the compensation awarded by the learned Claims Tribunal., It is the case of the Appellants that on 22 July 2012 at around 8:10 pm, Shri Subhash Chander (deceased) was driving a motorcycle bearing number DL‑9SJ‑5202 which collided with a Delhi Transport Corporation bus bearing number DL‑1P‑B‑5549 (Offending Vehicle). The offending vehicle was parked in the middle of the road without any signal or light indicator. The deceased, before the collision, had just crossed the underpass near Palam Airport and moved towards the IOC red light, where the offending vehicle was standing. As a result of the collision, the deceased sustained fatal injuries and was taken to Mata Chanan Devi Hospital, Janakpuri, New Delhi. The injuries proved to be fatal and he expired on 23 July 2012., Consequently, on 22 July 2012, a First Information Report No. 173/2012 was registered with Police Station Delhi Cantt under Sections 279 and 337 of the Indian Penal Code and a charge sheet was also filed under Sections 279 and 304‑A of the Indian Penal Code against Respondent No.1., Subsequently, the Appellants/Claimants preferred an application under Section 166 of the Motor Vehicles Act, 1988 (the Act) praying for compensation of Rs. 50,00,000 (Fifty Lakhs only) on various counts. At the time of the accident, Shri Subhash Chander (deceased), as per his ration card Exhibit PW1/3, was aged about 54 years and was employed as a Government Contractor within Delhi and the National Capital Region., Respondent No.3 filed its written statement stating that the offending vehicle was insured in the name of Respondent No.2 under Policy bearing number 0411003111P113414635 valid from 03 March 2012 to 02 March 2013. Further, Respondent No.3 stated that the deceased was himself a tortfeasor and the alleged incident took place due to the sole negligence of the deceased., In support of the claim petition, the Appellants/Claimants examined four witnesses. The Appellants examined Petitioner Witness No.1 as PW‑1, Shri Sunil Kumar as PW‑2 (eye‑witness), PW‑3 Shri Vijay Kumar from the office of Executive Engineer, Delhi Aviation Division, and PW‑4 Shri Joginder Singh from the Income Tax Office. However, the Insurer/Respondent No.3 has not examined any witnesses., The learned Claims Tribunal decided the issues in favour of the Claimants/Appellants by holding that they are entitled to a total compensation of Rs. 17,49,491 with interest at 7.5 percent per annum from the date of filing the petition till its realization. A deduction of 20 percent towards contributory negligence was also made in the awarded amount. The compensation awarded by the learned Claims Tribunal is as follows: (i) Loss of Dependency (Rs. 1,37,681 × 11) – Rs. 15,14,491; (ii) Funeral charges – Rs. 25,000; (iii) Loss of estate – Rs. 10,000; (iv) Loss of consortium – Rs. 1,00,000; (v) Loss of love and affection etc. – Rs. 1,00,000. Total compensation awarded Rs. 17,49,491., Aggrieved by the order of the learned Claims Tribunal, the Appellants herein filed the present appeal under Section 173 of the Act for enhancement of the compensation award by the learned Claims Tribunal., Mister S.N. Parashar, learned counsel for the Appellants, submitted that the learned Claims Tribunal erred in awarding a compensation of Rs. 17,49,491 against the claimed amount of Rs. 50,00,000., The learned counsel for the Appellants further submitted that the accident which resulted in the death of Shri Subhash Chander was caused due to the sole negligence of Respondent No.1. He further submits that Respondent No.1 left his vehicle unattended in the middle of the road at night without any signal, reflector or indicator. He also submitted that the learned Claims Tribunal erred in holding that the deceased was guilty of contributory negligence to the extent of 20 percent and that the respondents have not led any evidence to suggest that the deceased was negligent at the time of the accident., Mister S.N. Parashar, learned counsel for the Appellant, further submitted that the learned Claims Tribunal erred in taking the annual income of the deceased as Rs. 1,59,630. He submitted that PW‑4 Shri Joginder Singh, Tax Assistant, has proved two Income Tax Returns of the deceased Exhibit PW4/1 (colly) for the assessment year 2012‑2013. As per the original ITR, the annual income of the deceased is shown as Rs. 2,59,627 and as per the revised return, the annual income is shown as Rs. 4,14,606. It is his submission that the learned Claims Tribunal wrongly deducted the permissible savings of Rs. 1,00,000 allowed under Chapter VI‑A (Section 80U) of the Income Tax Act while calculating the income of the deceased., The learned counsel for the Appellant further submitted that the deceased left behind seven legal heirs as his dependents, which included his mother who unfortunately died during the pendency of the present petition. Therefore, the learned Claims Tribunal ought to have made a lesser deduction towards personal expenses., With regard to future prospects, the learned counsel for the Appellants contended that the learned Claims Tribunal erred in restricting the future prospects only to the extent of 15 percent and it should have been considered at a much higher rate. He further submitted that the deceased Shri Subhash Chander was not in service but was working as a Government Contractor with various government agencies. Furthermore, there was no retirement age for the deceased and his income was increasing, as is evident from the records., The learned counsel for the Appellant further submitted that the learned Claims Tribunal failed to consider the medical bills placed on record by the Appellant. After the accident on 22 July 2012, the deceased was taken to Mata Channan Devi Hospital, Janakpuri, New Delhi and the medical bills from the hospital amounting to Rs. 40,575 were placed on record as Exhibit PW1/2. However, the learned Claims Tribunal failed to grant any compensation on this head., Lastly, he submitted that the learned Claims Tribunal also failed to award compensation towards loss of filial consortium of Rs. 40,000 each., Per contra, Mister Ravi Sabharwal, learned counsel appearing on behalf of Respondent No.3, Insurance Company, vehemently argued that the accident of the deceased Shri Subhash Chander occurred due to the negligence of the deceased himself. He submitted that the deceased, while driving his motorcycle, hit the stationary bus from behind and there was no negligence on the part of Respondent No.1., It was further argued by the learned counsel for Respondent No.3 that the compensation awarded by the learned Claims Tribunal is more than sufficient and hence prayed for the dismissal of the present appeal., The Supreme Court of India has heard the arguments advanced by the learned counsels for both parties and perused the documents on record., Before adjudication of any other issue, it is quintessential to adjudicate on the issue of negligence. It is the contention of the learned counsel for the Appellants that the offending vehicle, which was being driven by Respondent No.1, was parked in the middle of the road without any signal or light indicator. On the contrary, learned counsel for Respondent No.3 argued that the accident of the deceased was caused due to the negligence of the deceased as he himself hit the stationary bus from behind., Exhibit PW‑2/A is the evidence of the eye‑witness, Shri Sunil Kumar (PW‑2), wherein he stated that the accident of the deceased Subhash Chander was caused due to the rash and negligent parking of Respondent No.1. He further stated that the deceased was his uncle who was returning back after attending a function on his motorcycle. He stated that when they crossed the underpass near Palam Airport and moved towards the IOC red light, he saw a DTC bus bearing number DL‑1P‑B‑5549 in the middle of the road and the deceased was ahead of him. He stated that it was not possible to make out whether the DTC bus was moving or standing as it was in the middle of the road. There was also no indication of any kind put on the bus or road and there was no road lighting. Furthermore, he stated that the deceased tried to avoid the bus on the road but his motorcycle hit the bus which was parked in the middle of the road. Relevant portion of the affidavit of PW‑2, exhibited as Exhibit PW‑2/A, is reproduced hereunder: (i) I am the eye‑witness of the incident that took place on 22 July 2012 in the above‑noted case and am fully competent to swear this affidavit. (ii) On the fateful day of 22 July 2012, along with my wife Shrimati Ritu Kumar, we were coming from Netaji Nagar after attending a family function on our motorcycle bearing number HR‑51‑AM‑0238 and the deceased, who was my uncle, was also returning back from the said function on his motorcycle bearing number DL‑9SJ‑5202. When we crossed the underpass near Palam Airport and moved towards the IOC red light, I saw that a DTC bus bearing number DL‑1P‑B‑5549 was in the middle of the road and the deceased was ahead of me. It was not possible to make out whether the DTC bus was moving or standing as it was in the middle of the road; there was no indication of any kind on the bus or road and there was no road lighting. I saw that the deceased tried to avoid the bus on the road but his motorcycle hit the bus while avoiding the bus that was parked in the middle of the road. (iii) The accident took place due to the rash and negligent parking of the bus by its driver, i.e., Respondent No.1, in the middle of the road., From the evidence of PW‑2, there is no doubt that the accident occurred due to the irresponsible and negligent parking of the offending vehicle by Respondent No.1 in the middle of the road. However, this Court is of the considered opinion that the accident could have been avoided if the deceased could have driven his motorcycle with all due care while crossing the stationary bus. PW‑2, who was travelling on another motorcycle behind the deceased, categorically stated that he saw a DTC bus in the middle of the road. Hence, if the deceased had taken proper care, he would have also seen the DTC bus standing in the middle of the road and the unfortunate accident would have been avoided., This Court is also of the opinion that rash and negligent driving does not in every case necessarily mean excessive speed. Not taking due care while driving the vehicle, particularly overtaking either a stationary or moving vehicle, also amounts to rash and negligent driving. Hence, this Court is in complete agreement with the learned Claims Tribunal and the deceased is guilty of contributory negligence to the extent of 20 percent., With respect to the income of the deceased, the learned counsel for the Appellants contended that as per the original ITR, the annual income of the deceased is shown as Rs. 2,59,627 and as per the revised return, it is shown as Rs. 4,14,606. He also contended that both ITRs, exhibited as Exhibit PW4/1 (colly), have been proved on record by PW‑4 and hence the learned Claims Tribunal erred in taking the income of the deceased as Rs. 1,59,630. He further contended that the learned Claims Tribunal wrongly deducted the permissible savings of Rs. 1,00,000 allowed under Chapter VI‑A (Section 80U) of the Income Tax Act., PW‑4, Shri Joginder Singh, Tax Assistant, gave the following statement: I am a summoned witness and have brought the income tax returns of the deceased Subhash Chander for the assessment years 2010‑11, 2011‑12 and 2012‑13. There is one original and one revised income tax return for the assessment year 2012‑13. The returns for the assessment year 2012‑13 cover the period from 01‑04‑2012 to 31‑03‑2013 and were filed on 16‑08‑2012. The income for the assessment year 2012‑13 is shown as Rs. 1,59,627. No further ITR has been filed for subsequent years. There is no other income shown in the returns., The Supreme Court of India examined both ITRs. As per the original return, the income was shown as Rs. 2,59,627 whereas, as per the revised return, the annual income of the deceased was shown as Rs. 4,14,606. Section 139(5) of the Income Tax Act, 1961 allows taxpayers to file revised ITRs if they have made mistakes in the returns filed earlier. A revised ITR substitutes the original ITR completely and is considered the final ITR of the taxpayer. In the present case, PW‑4 deposed that the income of the deceased for the assessment year 2012‑13 was Rs. 1,59,627. However, the revised return, proved on record as Exhibit PW4/1 (colly), should be taken as the correct income, i.e., Rs. 4,14,606., Therefore, the annual income of the deceased as per the revised ITR was Rs. 4,14,606 and the tax liability was Rs. 13,865. Hence, for the purpose of computation of the claim, the annual income is taken as annual income minus tax liability, i.e., Rs. 4,00,741., The Honorable Supreme Court in Sarla Verma v. DTC, reported as (2009) 6 SCC 121, established the principles for assessing compensation in cases of death. The criteria are: (i) the age of the deceased at the time of death; (ii) the number of dependents left behind; and (iii) the income of the deceased at the time of death. The issues to be determined for loss of dependency are: (i) additions/deductions to be made for arriving at the income; (ii) deduction towards personal living expenses of the deceased; and (iii) the multiplier to be applied with reference to the age of the deceased., The steps for ascertaining the multiplicand are: determine the income of the deceased per annum, deduct personal and living expenses, and the balance constitutes the multiplicand. The multiplier is selected based on the age of the deceased and period of active career, using the Table of multipliers identified by this Court., The Constitution Bench of the Honorable Supreme Court in National Insurance Company Ltd. v. Pranay Sethi, reported as (2017) 16 SCC 680, held that future prospects are to be awarded on the basis of (i) the nature of the deceased’s employment; and (ii) the age of the deceased. In the present case, the deceased was 54 years old and was working as a Government Contractor within Delhi and the National Capital Region. Relying on paragraph 59.4 of Pranay Sethi, while determining the income, an addition of 10 percent of actual salary to the income of the deceased towards future prospects should be made where the deceased is self‑employed and was between the ages of 50 and 60 years., At the time of death, the deceased was survived by seven dependents: wife, mother, three sons and two daughters. During the pendency of the proceedings before the learned Claims Tribunal, the mother of the deceased expired. Hence, while calculating deductions towards personal expenses, the number of dependents at the time of death is to be considered. As per the dicta of the Supreme Court in Sarla Verma, since the number of dependents was seven, the deduction towards personal expenses would be one‑fifth., The accident happened on 22 July 2012 and the deceased succumbed to his injuries on 23 July 2012. After the accident, the deceased was taken to Mata Channan Devi Hospital, Janakpuri, New Delhi and the Appellants proved the medical bills from the hospital amounting to Rs. 40,575 as Exhibit PW1/2. Hence, the Appellants are entitled to Rs. 40,575 towards the actual medical expenses incurred for the treatment of the deceased., The conventional heads, namely loss of estate, loss of consortium and funeral expenses, are fixed as Rs. 15,000, Rs. 40,000 and Rs. 15,000 respectively, with an increase of 10 percent after a period of three years. In view of the decision in United India Insurance Company Limited v. Satinder Kaur Alias Satwinder Kaur and Others (2021) 11 SCC 780, no compensation is to be granted under the head loss of love and affection., In light of the above discussion, the claimants are awarded compensation as follows: (i) Income – Rs. 4,00,741 per annum; (ii) Deduction towards personal expenditure – one‑fifth of Rs. 4,00,741 i.e. Rs. 80,148.20; (iii) Future prospects – 10 percent of the multiplicand; (iv) Multiplicand – Rs. 4,00,741 minus personal expenditure equals Rs. 3,20,592.80; adding 10 percent yields Rs. 3,52,652.08; (v) Multiplier (as per Sarla Verma) – 11; (vi) Loss of dependency – Rs. 38,79,172.88 (Rs. 3,52,652.08 × 11); (vii) Funeral expenses – Rs. 16,500; (viii) Loss of estate – Rs. 16,500; (ix) Medical expenses – Rs. 40,575; (x) Loss of consortium (spousal and parental) – Rs. 2,64,000. Total compensation awarded Rs. 42,16,747.88., Therefore, the compensation is increased from Rs. 17,49,491 to Rs. 42,16,747.88. However, 20 percent of the total awarded compensation is to be deducted as this is a case of contributory negligence. Consequently, Rs. 8,43,349.57 is to be deducted, leaving a net compensation of Rs. 33,73,398.31. The rate of interest fixed by the learned Claims Tribunal, i.e., 7.5 percent, is also maintained., Respondent No.3 is directed to deposit the enhanced amount with 7.5 percent interest from the date of filing of the present appeal till the date of deposit, within four weeks from today. Upon deposit of the said amount, the Registry is directed to release the amount to the Appellants in terms of the award passed by the learned Claims Tribunal. The statutory deposit with interest accrued thereon, if any, shall be released to the Appellants. The present appeal is allowed and disposed of in the above terms. No order as to costs.
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Pronounced on: 04.03.2024 Through: Mr. Samudra Sarangi, Ms. Shruti Raina, Ms. Saloni Jain, Ms. Nitya Jain and Mr. Akash Jain, Advocates versus Through: Mr. Abhimanyu Bhandari, Mr. Rishi K. Awasthi, Ms. Roohe Hina Dua, Ms. Shreya Arora and Mr. Avinash Ankit, Advocates for Defendant 1: Mr. Sanjay Ghose, Senior Advocate along with Mohd. Tasnimul Hassan, Mr. Siddharth Sharma, Mr. Martin G. George, Mr. Pulkit Agarwal, Mr. Rohan Mandal, Mr. K. P. Jayaram, Mr. Jai Anant D., Mr. Raghav Sehgal and Mr. Sagar Sharma, Advocates for Defendant 2., The instant suit has been filed by the plaintiff seeking the following prayers: IA.24255/2023 (on behalf of the plaintiff under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure, 1908 seeking temporary injunction against the defendants on account of ex‑facie false and per se defamatory statements made, endorsed, propagated or circulated against the plaintiff). A decree and an order of permanent injunction restraining the defendants and all others acting for and on their behalf from making, posting, publishing, uploading, writing, speaking, distributing or republishing any false defamatory content against the plaintiff on any platform whether online or offline in any media, including electronic media and social media, or publishing in any manner or form any content and material which is defamatory about the plaintiff which can bring disrepute and tarnish the plaintiff’s goodwill and reputation. An order against the defendants and all others acting for and on their behalf to remove or withdraw all the defamatory and scurrilous content posted, published, uploaded, written or spoken by them about the plaintiff which has brought disrepute and tarnish the plaintiff’s goodwill and reputation from all platforms whether online or offline. A decree and an order directing Defendant No. 1 and Defendant No. 2 to make and publish a retraction and an apology to the plaintiff in three English newspapers, three Hindi newspapers and three Bengali newspapers for the false and defamatory statements or allegations made by Defendant Nos. 1 and 2 against the plaintiff. Defendant No. 2 may be ordered by a decree of mandatory injunction to withdraw the letter dated 14 October 2023 issued by Defendant No. 2 to Defendant No. 1. The defendant be directed to pay damages suffered by the plaintiff, that shall be quantified at a later stage on account of the defamatory, derogatory and baseless statements made by Defendant No. 1 and 2. Costs of the suit be awarded to the plaintiff. Any other relief which the Honourable Supreme Court of India thinks fit and proper in the circumstances of the case is allowed in favour of the plaintiff and against the defendants., The prayers in the instant application are as under: an order of ex‑parte ad‑interim injunction restraining the defendants and all others acting for and on their behalf from making, posting, publishing, uploading, distributing or republishing any false and defamatory content as mentioned in the accompanying suit and the application against the plaintiff on any platform whether online or offline which can bring disrepute and tarnish the plaintiff’s goodwill and reputation; pass an ex‑parte ad‑interim injunction against Defendant No. 2 by way of a decree of mandatory injunction to withdraw the letter dated 14 October 2023 issued by Defendant No. 2 to Defendant No. 1; pass an ex‑parte ad‑interim injunction in favour of the plaintiff and against Defendant Nos. 1 and 2, directing them to provide a written apology for the false and defamatory content published, propagated, shared and circulated by them and also publish their written apology in the public domain; any other directions or reliefs which the Honourable Supreme Court of India deems fit and proper in the facts and circumstances of the present case may also be granted in favour of the plaintiff and against the defendants., The suit is predicated on the averment that the defendants are guilty of defaming the plaintiff on account of (i) making false and defamatory statements which impinge upon the plaintiff’s reputation; (ii) the said statements specifically refer to and make imputations against the plaintiff; (iii) publishing of the said defamatory statements., The plaintiff is stated to be a member of Lok Sabha elected from the constituency of Krishnanagar, West Bengal in 2019. The plaintiff claims to be a prominent and well‑respected politician holding an unblemished, untarnished and impeccable reputation of being an honest and upright public figure. There have been prior disputes between the plaintiff and Defendant No. 2. The plaintiff and Defendant No. 2 are stated to have been in a relationship for several years and are stated to have parted ways on acrimonious terms in 2023, following which certain police complaints were also filed by the plaintiff against Defendant No. 2 in March 2023 and September 2023., It is the contention of the plaintiff that Defendant No. 2 entered into a conspiracy with Defendant No. 1 to defame the plaintiff with a view to destroy her reputation and career. It is alleged that in pursuance of the said conspiracy, defamatory letters were allegedly addressed by Defendant No. 2 to the Central Bureau of Investigation and also to Defendant No. 1 on 14 October 2023. The said defamatory letters addressed by Defendant No. 2, in addition to containing per se, ex‑facie defamatory allegations against the plaintiff, also enclosed the complaint submitted by Defendant No. 2 to the Central Bureau of Investigation., It is contended that the false and baseless allegations contained in these communications are entirely uncorroborated by any evidence and have been made with malicious disregard for the truth. It is contended that immediately upon receipt of Defendant No. 2’s letter dated 14 October 2023, without any due diligence, inquiry of any manner or follow up to ascertain the veracity of Defendant No. 2’s allegations, Defendant No. 1 in his letter dated 15 October 2023 addressed to the Speaker of the Lok Sabha, claimed to have meticulously gone through all papers and documents and concluded that there is no iota of doubt about the accuracy of the allegations made against the plaintiff. The plaintiff contends that the said letter dated 15 October 2023 addressed by Defendant No. 1 to the Speaker of the Lok Sabha was instantaneously leaked to members of the media and was virally circulated on social media. The contents of the said letter are per se ex‑facie defamatory and were made by Defendant No. 1 with the sole objective of extracting a political vendetta against the plaintiff., A perusal of the letter dated 14 October 2023, addressed by Defendant No. 2 to Defendant No. 1, read with Defendant No. 2’s complaint to the Central Bureau of Investigation, reveals that the same seeks to level various allegations against the plaintiff, inter‑alia, that the plaintiff handed over complete and unfettered access to her online Lok Sabha account to one Shri Darshan Hiranandani, who posted questions in the name of the plaintiff using her account or got the same posted by her on his behalf. The communication also contained allegations of the plaintiff receiving multiple valuable gifts from Shri Darshan Hiranandani, and further alleged the same constituted a bribe or was in the nature of a quid pro quo., It is stated that the defamatory letters dated 14 October 2023 and 15 October 2023 were both wilfully and maliciously published. The letter dated 14 October 2023 is stated to have been published on account of the same being sent by Defendant No. 2 to Defendant No. 1. The letter dated 15 October 2023 is stated to have been published by Defendant No. 1 by leaking the same to the media., It is alleged on behalf of the plaintiff that the allegations against the plaintiff are false, uncorroborated, unsubstantiated and made with a reckless disregard towards the truth. There is no basis for the allegations of quid pro quo and bribery against the plaintiff and the same have been made in furtherance of a political conspiracy to tarnish the plaintiff’s reputation, image and career. The plaintiff submits that Defendant No. 2 continues to make social media posts against the plaintiff almost on a daily basis and offers his comments to media channels on the matter, thus continuing to damage and impact the plaintiff’s reputation with his deliberate and malicious falsehood., In the above background, learned counsel for the plaintiff strenuously submits that the plaintiff has made out a strong prima facie case. The balance of convenience is also stated to be entirely in favour of the plaintiff inasmuch as her reputation would be irreparably damaged if injunctive reliefs are not granted., The plaintiff has expressly denied the allegations contained in the defamatory letters including allegations of bribery or quid pro quo on her part. The defendants have not brought out any material on record till date to justify or offer any basis for making such wild, malicious, false and defamatory allegations against the plaintiff. It is further submitted that the defendants have defamed the plaintiff to further their own malicious designs with abject disregard towards the truth. Injunctive reliefs are liable to be granted to the plaintiff as she will continue to face irreparable injury and damage at the hands of the defendants if injunction is not granted, which cannot possibly be compensated in terms of money and damages., Learned counsel for the plaintiff has relied upon the following judgments to buttress the point that an injunction is liable to be granted when the defendants have made defamatory statements with reckless disregard for the truth involving a public figure: Vinay Kumar Saxena v. Aam Aadmi Party & Ors.; Smriti Zubin Irani v. Pawan Khera & Ors.; Hanuman Beniwal v. Vinay Mishra; Naresh Kumar v. Wire & Ors.; Yusuffali Musaliam Veetil Abdul Kader v. Shajan Skariah & Ors. (2022 SCC Online Delhi 309; 2022 SCC Online Delhi 2310; 2022 SCC Online Delhi 4882; 2023 SCC Online Delhi 7314). Order dated 26 May 2023 passed by this Court in CS (COMM) 360/2023., Further, learned counsel for the plaintiff has relied upon the following judgments to contend that the defendants were required to exercise due diligence and care while making the above allegations against the plaintiff: Sukra Mahto v. Basdeo Kumar Mahto & Anr.; Lakshmi Murdeshwar Puri v. Saket Gokhale; Shree Maheshwar Hydel Power Corporation Ltd. v. Chitroopa Palit & Anr.; Housing Development Finance Corporation Ltd. & Ors. v. Sureshchandra V. Parekh & Anr., On behalf of Defendant No. 1, it has been contended that the letter dated 15 October 2023 was not written with any malicious intent to lower or harm the reputation of the plaintiff. It is submitted that the said letter was addressed to the Speaker of the Lok Sabha so that immediate action could be taken on the unethical conduct of a parliamentarian. Reliance is placed upon Rule 233A of the Rules of Procedure and Conduct of Business in Lok Sabha to contend that it is the duty of Defendant No. 1 to immediately report to the relevant authority in case it comes across any information disclosing unethical conduct or behaviour by any other Member of Parliament. The actions of Defendant No. 1 in writing the said letter are within the contours of his duties as a parliamentarian and the same cannot be hindered. In this regard, reliance is placed upon the judgment of the Supreme Court in R. Rajagopal v. State of Tamil Nadu., It is further contended that there is no false averment in the letter dated 15 October 2023. The letter was written on the basis of the evidence which forms part of the letter dated 14 October 2023 of Defendant No. 2 addressed to Defendant No. 1. Apart from addressing the said letter dated 15 October 2023 to the Speaker of the Lok Sabha, Defendant No. 1 did not disseminate the said letter to the media or anyone else. As such, it is wholly incorrect on the part of the plaintiff to allege publication of defamatory remarks by Defendant No. 1., Learned counsel for Defendant No. 1 places reliance on the judgment of this Court in Kailash Gahlot v. Vijender Gupta & Ors., It is further contended that although the plaintiff has filed the present suit on the basis that the aforesaid letter dated 15 October 2023 contains false allegations and imputation, as a matter of fact, the plaintiff, after filing of the present suit, has given statements to media publications to the effect that the plaintiff had in fact entrusted her Lok Sabha login credentials with Shri Darshan Hiranandani, who then posted specifically curated questions as per his own requirements. This contends that the rights of representatives of the people and politicians to question the actions of their counterparts in a political set‑up ensures a healthy balance of power and the same cannot be curtailed by filing a suit for defamation (2022 SCC Online Delhi 679, paras 49‑50)., It is contended that the same clearly amounts to an admission as to the truth of the allegations levelled against the plaintiff in the letter dated 15 October 2023. Further, the same, according to the learned counsel for Defendant No. 1, also constitutes an admission as to the serious transgression of parliamentary privileges and duties by the plaintiff. In the circumstances, it is contended that the contents of the letter dated 15 October 2023 cannot be termed to be untrue in any manner. Reliance is placed upon the judgment of the Supreme Court in Subramanian Swamy v. Union of India., It is further contended that the veracity of the allegations regarding pecuniary benefits enjoyed by the plaintiff for sharing her Lok Sabha login credentials is substantiated by the affidavit submitted by Shri Darshan Hiranandani which is in the public domain, and which has been filed in these proceedings. It is contended that the same is also corroborated by the report of the Ethics Committee of the Lok Sabha which was tabled in the winter session of Parliament on 08 December 2023. In this regard, reliance is placed upon the findings given in paragraphs 65‑69 of the Ethics Committee Report which has been placed on record in these proceedings, to contend that defamation occurs only if an untrue statement is made with an intent to defame a person, which is not the case in the present case at all., In the circumstances, it is contended that the necessary ingredients for constituting the thought of defamation are not satisfied in the present case and as such, the plaintiff is not entitled to any injunction., Learned counsel for Defendant No. 2 has also placed strong reliance on the aforesaid Report of the Ethics Committee of the Lok Sabha, in particular paragraphs 64 to 69 thereof, which read as under: 64. The Committee further notes that Smt. Mahua Moitra allegedly demanded favours including cash, expensive luxury items, providing support on renovation of her officially allotted bungalow in Delhi, travel expenses, holidays, etc., apart from seeking secretarial and logistical help for her travels within India and to different parts of the world. 65. As a matter of fact, quite recently, Smt. Mahua Moitra, MP, while giving an interview to Shri Rajdeep Sardesai, which was widely telecast by India Today and available on YouTube, accepted that Shri Darshan Hiranandani had gifted her Hermes brand scarf, Bobbi Brown brand lipstick and eye shadow, makeup articles. Whenever she was visiting Mumbai or Dubai, Shri Hiranandani also provided her car and while renovating her official bungalow, Shri Hiranandani also provided her layout drawings. 66. As a matter of fact, Shri Darshan Hiranandani, at paragraph 12 of his notarized affidavit, corroborated gifting of these articles and providing amenities and various other facilities, stating: \Over a period, my friendship with Ms. Mahua Moitra grew, I also felt that, through her, I would get support in other states ruled by the Opposition, because she bonded extremely well with other leaders of the Opposition like Shri Gandhi, Shri Shashi Tharoor and Shri Pinaki Mishra, with whom also she shared close relations. Importantly, she also made frequent demands of me and kept asking me for various favours, which I had to fulfil in order to remain in close proximity with her and get her support. The demands that were made and favours that were asked included gifting her expensive luxury items, providing support on renovation of her officially allotted bungalow in Delhi, travel expenses, holidays, etc., apart from providing secretarial and logistical help for her travels within India and to different parts of the world.\ 67. It is also a matter of record that Smt. Mahua Moitra made a deposition before the Committee on Ethics on 2 November 2023, that she accepted taking a few gifts, use of his car and getting the layout plans of her official bungalow prepared by Shri Hiranandani. The Committee has noted the contradiction between the versions of Smt. Mahua Moitra and Shri Darshan Hiranandani, as the former claimed that these gifts, amenities and facilities were given by the latter, whereas Shri Hiranandani, in his notarized affidavit, worded this as \she also made frequent demands of me and kept asking me for various favours\. 68. In view of the totality of the facts and circumstances of the case, the Committee are of the opinion that the allegations of accepting illegal gratification by Smt. Mahua Moitra from Shri Darshan Hiranandani have been clearly established which are undeniable and based on systematic deliberations of the Committee on Ethics. The Committee also emphasises that taking gifts and other facilities from a businessman to whom she had even handed over her official login credentials so that this businessman could directly operate her Members' Portal and post parliamentary questions on his own choice, may be in small quantity or on a few occasions, amounts to illegal gratification and a quid pro quo, which is not only unbecoming of a Member of Parliament but also grossly an unethical conduct. 69. As regards taking cash from Shri Darshan Hiranandani as a sequel to quid pro quo, the Committee points out that they do not have the technical wherewithal and expertise to criminally investigate and unearth the money trail, which is invariably the task of Central Government institutions. The Committee therefore recommends that the cash transaction between Smt. Mahua Moitra and Shri Darshan Hiranandani as a part of quid pro quo could be investigated by the Government of India in a time‑bound manner., It is contended on behalf of Defendant No. 2 that in view of the truth of the allegations contained in the letter dated 14 October 2023 addressed by Defendant No. 2, it is evident that the present suit is nothing but an attempt to silence Defendant No. 2. It is further contended that a statutory complaint to the Central Bureau of Investigation does not amount to defamation. Further, the complaint addressed by Defendant No. 2 to Defendant No. 1 is stated to be under Rule 233A of the Rules of Procedure and Conduct of Business in Lok Sabha, and cannot also be held to be defamatory in nature., Emphasising the admissions made by the plaintiff and in the light of the factual position elucidated in the affidavit of Shri Darshan Hiranandani, it is contended that substantial truth in the allegations leveled by Defendant No. 2 stands established. Reliance is placed on the judgment of the Supreme Court in Ram Jethmalani v. Subramaniam Swamy., Reliance is placed by Defendant No. 2 on the following judgments to contend that a statutory complaint, even if false, does not amount to defamation and that truth or justification is a complete defence to the present suit and the instant application. The standard of proof of truth is not absolute but is limited to establishing that what was spoken was substantially correct: A.N. Shanmugam v. G. Saravanan; Vijay Gulati v. Radhika & Ors.; Prof. Imtiaz Ahmad v. Durdana Zamir; Mahavir Singh v. Surinder Singh., Reliance is also placed on the judgment of the Bombay High Court in Essel Infraprojects Limited v. Essel Infraprojects Limited to contend that even if the defendant honestly believes the statement to be true, no injunction can be granted. Further, reliance is placed on Kishore Balkrishna Nand v. State of Maharashtra., It is further contended that the Central Bureau of Investigation complaint of Defendant No. 2 was in public interest and cannot be termed as defamatory. In this regard, reliance is placed on the following judgments: Sasikala Pushpa v. Facebook India & Ors.; Sanj Daily Lokopchar, Khamgaon v. Gokulchand Govindlal Sananda; Mr. Mohanadevi v. Dr. C.V. Ranjan; Indian Potash Ltd. v. Media Contents and Communication Services (India) Pvt. Ltd., Defendant No. 2 has also contended that there was a clear link in the questions asked by the plaintiff in Parliament and the business interests of Shri Darshan Hiranandani. Relying upon the affidavit of Shri Darshan Hiranandani and the Report of the Ethics Committee of the Lok Sabha, Defendant No. 2 contends that the truth and veracity of the allegations in his complaints repel and negate the plaintiff’s plea alleging defamation on the part of Defendant No. 2., I have anxiously considered the submissions of respective counsel for the parties. Analysis and conclusion., At the outset, it is necessary to take note of the averments made by the plaintiff as regards the communication dated 14 October 2023 addressed by Defendant No. 2 to the Central Bureau of Investigation. As noticed hereinabove, the said communication contains the following specific allegations: (i) that the plaintiff handed over complete and unfettered access to her online Lok Sabha account to one Shri Darshan Hiranandani; (ii) questions were either posted directly by Shri Darshan Hiranandani in the name of the plaintiff using her account or were posted by her on his behalf, as per his liking and to further his agenda of profit and business rivalry; (iii) that the plaintiff has received multiple valuable gifts from Shri Hiranandani., It was the above letter dated 14 October 2023, which was enclosed by Defendant No. 2, with its communication sent to Defendant No. 1 on the same date. In the plaint, it has been specifically averred with regard thereto as under: including extensive designing and technical support from the Mumbai Hiranandani Construction Department for building her official residence at 9‑B, Telegraph Lane, New Delhi; the receipt of the above valuable gifts constituted bribes or quid pro quo in lieu of the access granted by her to her online Lok Sabha account., On 14 October 2023, Defendant No. 2 issued a letter to Defendant No. 1 making wild, false, baseless, vindictive, malicious and unfounded allegations against the plaintiff. A copy of the letter dated 14 October 2023 issued by Defendant No. 2 to Defendant No. 1 is annexed herewith and marked as Document No. 4. The contents of the letter dated 14 October 2023 are denied by the plaintiff in toto, including iPhones, diamond and emerald jewellery, luxury items such as scarves from Hermes and Louis Vuitton, about 35 pairs of shoes from Salvatore Ferragamo, dozens of bottles of expensive French and Italian wines, packets of luxury cosmetics from Dubai, bags of Gucci and crocodile leather bags from Berluti, regular delivery of packets of cash, both in Indian rupees and pound sterling, and allegations made therein are ex‑facie false, baseless and per se defamatory and were the first step in the conspiracy hatched by Defendant Nos. 1 and 2 to cause damage to the plaintiff’s reputation as a clean, upright and a politician with integrity and morals., By an additional affidavit filed by Defendant No. 1 vide diary no. 2243263 (filed on 12 December 2023), the defendant has sought to place on record a sworn affidavit of Shri Darshan Hiranandani, which also refers to the present proceedings initiated by the plaintiff. Paragraph 10 of the said affidavit clearly states that plaintiff was
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