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2. These appeals take exception to the common Judgment and decree of the High Court of Punjab and Haryana at Chandigarh 1, dated 27.05.2019 in R.S.A. Nos. 2901/2012 and 3881/2012, for short, “the High Court” whereby the High Court reversed the concurrent findings of the trial Court and the first appellate Court and decreed the suits of the plaintiff. 3. For convenience, the parties are referred to as per their status in Civil Suit No. 11/2001 before the Court of Civil Judge (Senior Division), Hoshiarpur2. The admitted factual position in the present cases is that one Harbans Singh had married Gurbachan Kaur and fathered Joginder Kaur (plaintiff – now deceased) in the wedlock. After the demise of Gurbachan Kaur, Harbans Singh married Piar Kaur and in that wedlock, he (defendant No. 4), Narinder Pal Singh (defendant No. 5) and Surjit Singh (defendant No. 6). Harcharan Kaur (defendant No. 1) is the wife of defendant No. 4 and the step sister­in­law of the plaintiff. Nirmal Gill (respondent herein) is daughter and the legal representative of the plaintiff (Joginder Kaur) and Charanjit Singh is her (plaintiff’s) son. 4. Harbans Singh was the owner of various stretches of land at Nawanshahr, Jalandhar and Hoshiarpur which, upon his death for short, “the trial Court” in the year 1963, devolved upon the plaintiff, her step brothers ­ defendant Nos. 3 to 6 and her step mother in six equal shares. 5. The plaintiff and the defendant Nos. 3 to 6 had cordial relations and the plaintiff used to frequently visit her maternal 6. The dispute between the parties pertains to a General Power of Attorney (GPA) purported to have been executed by the plaintiff on 28.06.19903 in favour of defendant No. 1 and consequently sale deeds executed by defendant No. 1 as an attorney of the plaintiff. Sale deeds dated 29.06.1990 and 03.07.1990 purported to have been executed directly by the plaintiff are also disputed by the plaintiff. The case of the plaintiff is that the defendants sought her signatures on blank papers in the year 1990 under the guise of preparation and processing of documents for the purpose of getting the estate left behind by their father mutated in their names. Reposing complete trust in her step brothers, the plaintiff signed the papers and handed it over to the person tasked for that purpose by the step brothers ­ defendant Nos. 3 to 6. Thereafter, the defendant No. 3 visited plaintiff’s matrimonial home at Delhi asking her to come to village for short, “the 1990 GPA” Kalyanpur in June 1990 for getting the said mutation effected. Accordingly, the plaintiff visited the village and stayed there for 3 or 4 days. 7. Subsequent to the retirement of her husband in the year 1999, the plaintiff shifted to Mohali and being closer to her maternal home, the frequency of her meeting the relatives increased. In a wedding function of a relative at Jalandhar in February 2001, where the plaintiff and her step brothers ­ defendant Nos. 3 to 6 were present, one of her cousins Rustam Singh had mentioned to her in a conversation that the defendant Nos. 3 to 6 had sold a part of the property which they jointly held with the plaintiff. 8. Upon learning about the said fact, the plaintiff made enquiries in that regard including verified revenue records whence she learnt about existence of a GPA purported to have been executed in 19634 by all the legal heirs of Harbans Singh including the plaintiff, in favour of defendant No. 3 and based on the said GPA, the estate of Harbans Singh had already been mutated in their joint names in November 1963. The plaintiff also discovered the existence of aforementioned disputed documents for short, “the 1963 GPA” which were executed without her knowledge, during her visit to the village in the year 1990. The plaintiff claimed the aforementioned documents to be a result of fraud perpetrated upon her by her step brothers ­ defendant Nos. 3 to 6 and her step sister­in­law ­ defendant No. 1, who got those documents scribed, forged the plaintiff’s signature onto them and got them 9. On the other hand, the defendants denied that defendant No. 3 went to Delhi to call the plaintiff to village Kalyanpur. They claimed that the plaintiff had come there on her own and stayed with the defendant Nos. 3 to 6 for about a month. She had personally instructed the scribe to prepare the aforesaid documents and she had duly executed and got them registered. Therefore, all the transactions made by the plaintiff directly, as well as through her constituted attorney, are valid. 10. In this backdrop, the plaintiff instituted a suit being C.S. No. 11/2001 before the trial Court on 23.04.2001 against the aforementioned defendant Nos. 1, 3 to 6 and 19 others, seeking “i, That the sale­deed dated 05.07.2000 vide document No. 2213 of land measuring 2 Marla 5 Sarsahi being 1/2 share of the land measuring 7 Marlas 2 Sarsahi bearing Khewat No. 1401, Khatauni No. 2098, Khasra No. 6967 (3­5), situated in Village Premgarh, H.B. No. 247, Tehsil and District Hoshiarpur, as per Jamabandi for the year 1996­97 by defendant no. 1 as Mukhtar of the plaintiff in favour of defendant no. 2 is illegal, void and ineffective as against the rights of the plaintiff and that the mutation no. 13795 to the extent of 1/2 share of 65/68 th share i.e. 1/2 share of 7 Marlas 2 Sarsahi is null and void and is liable to be set aside and the plaintiff is not bound by the same. ii, That the plaintiff is owner in possession of the land measuring 9 Marla out of the land measuring 4 Kanals 13 Marla bearing Khewat No. 1400, Khatauni Khatauni No. 2166 to 2168, Khasra No. 689 (2­19) situated in Premgarh, Hoshiarpur, H.B. No. 247, Tehsil and District Hoshiarpur, as per Jamabandi for the year 1996­97. And restraining the defendant no. 1 from alienating or transferring the land in dispute in any manner on the basis of General power of attorney dt. iii, That the sale deed dated 29.05.1990 in respect of the land measuring 39 Kanals 4 Marlas out of the land measuring 235 Kanals 6 Marlas being 1/6 share out of the land measuring Kahata No. 46/60 to 67 and 36/56 14), 53//1 (2­7), situated in Village Kalyanpur, H.B. No. 144, Tehsil Dasuya, District Hoshiarpur is illegal, void and has been obtained by way of fraud and the declaration that the plaintiff is owner in possession of land in dispute. In the alternative suit of joint iv, And declaration that the General Power of Attorney dated 28.06.1990 obtained by defendant no. 1 in connivance with her husband Rattan Singh defendant no. 4 is the result of fraud and that the plaintiff is not bound by the same as well as any transaction made by the defendant no. 1 on behalf of the plaintiff are also illegal and void and are liable to be set aside and that the defendant no. 1 has no power to act as General Attorney of the plaintiff.” 11. While the said suit was pending, the plaintiff discovered existence of more documents executed by her alleged attorney and thus filed another suit being C.S. No. 173/2002 on 12.06.2002 before the trial Court, wherein the defendant No. 4 was arrayed as defendant No. 1, defendant Nos. 3, 5 and 6 were arrayed as defendant Nos. 2 to 4 respectively and defendant No. 1 was arrayed as defendant No. 11. Inder Pal Singh and Rajinder Kaur5, who purchased the plot at Jalandhar through the alleged attorney of the plaintiff, were arrayed as defendant Nos. 9 and 10. The prayer in the said suit was for declaration as hereunder: “i. That the sale deed and mutation no. 11395 regarding the land measuring 1 Kanal 6½ Marlas out of land measuring 6 Kanals 4 Marlas bearing Khewat No. 602, Khatauni No. 662, Khasra No. 85/17 (6­14) by defendant no. 11 as attorney of plaintiff in favour of defendant no. 8 situated in Village Bajwara, H.B. No. 355, Tehsil and District Hoshiarpur, as per Jamabandi for the year 1995­96 is illegal, void and that the plaintiff is not bound by the same as the same has been executed and got sanctioned in absence and without consent of the plaintiff. ii. That the sale deed dated 03.07.1990 in respect of the land measuring 34 Kanals 5 Marlas Khasra Nos. 32­ for short, “the subsequent purchasers” (1­3), 4/6 (0­2), 17//13 (less than one Marla), 18//3 (4­12), 19 (8­0), i.e. 1/6th share of 205 Kanals 9 Marlas situated in Village Mehandipur, H.B. No. 46, Tehsil Dasuya, District Hoshiarpur as per Jamabandi for the year 1983­84 and also as per Jamabandi for the year 1994­95 is illegal, void without consideration and executed in absence of the plaintiff by producing other lady by the defendant no. 1 in collusion with defendant no. 11 and his wife and the plaintiff is not bound by the same and is owner in possession of the said land. iii. That the sale deed in favour of defendant no. 7 dated 20.05.1996 registered on 22.05.1996 in respect of the land measuring 2 Kanal 10 Marlas out of land measuring 14 Kanals 18 Marlas bearing Khewat No. R/5 (8­0), now Khewat No. 123 and Khatauni No. 140 and the same khasra number as per Jamabandi for the year 1997­98 executed by defendant no. 11 situated in Village Sareenpur, H.B. No. 139, is illegal, void and without the consent of the plaintiff and the same is executed in the absence of plaintiff by playing fraud on the plaintiff and the plaintiff is owner of the said iv. That the sale deed dated 18.03.1996 in favour of defendant no. 9 executed by defendant no. 11 in respect of plot bearing no. 373­R to the extent of 1/12 share in front of which there is a road behind house no. 378­Land other side 373­L owned by Mangat Singh and Avtar Singh and other side is H.No. 372­L owned by Mool Chand Bhandari situated in Model Town, Jalandhar, as per site plan attached with the plaint is illegal, void and without the consent of the plaintiff. v. That the sale deed dated 18.03.1996 registered on 21.03.1996 in favour of defendant no. 10 executed by defendant no. 11 in respect of 1/12 share as Mukhtar by defendant no. 11 is illegal and void and without consideration and without the consent of the plaintiff, One side present No. 372­L owned by Mool Chand One side 373­L owned by Mangat Singh and Avtar situated in Model Town, Jalandhar, shown red in the site plan attached. IN THE ALTERNATIVE suit for joint possession of the properties as detailed in the heading (i) to (iii) and also declaring that the plaintiff and defendant no. 9 and 10 are in joint possession as co­sharers of the property Nos. (iv) and (v).” 12. Both the suits were resisted by defendant No. 1 and defendant Nos. 3 to 6. The subsequent purchasers also contested the suits by filing their written statement in C.S. No. 173/2002. On the basis of rival pleadings, the trial Court framed issues in the aforementioned suits as follows: “1. Whether the Plaintiff is entitled for a decree of 2. Whether the suit is not maintainable in the present 3. Whether the suit is within limitation? OPP “1. Whether the plaintiff is entitled to declaration as 2. Whether the sale deeds alleged by the plaintiff are 3. Whether the plaintiff is entitled to joint possession as alternative relief as prayed for? OPP 4. Whether the suit of the plaintiff is not maintainable? 5. Whether the suit of the plaintiff is barred by 13. The aforementioned suits came to be clubbed and evidence was recorded in the leading suit being C.S. No. 11/2001. After analyzing the evidence on record, the trial Court dismissed both the suits of the plaintiff vide a common judgment and decree 14. Aggrieved by this decision, the plaintiff preferred Civil Appeal Nos. 3 and 4 both of 2009 against C.S. No. 11/2001 and C.S. No. 173/2002 respectively before the Additional District Judge (Ad­hoc), Fast Track Court – I, Hoshiarpur 6. During the pendency of the appeals, the plaintiff expired and since then came to be represented by her legal representative Nirmal Gill (respondent No. 1 herein). The first appellate Court once again appreciated the evidence on record and after elaborate analysis, whilst upholding the findings of the trial Court on material issues, vide its judgment and decree dated 30.11.2011, partly modified the decision of the trial Court in C.S. No. 11/2001. The for short, “the first appellate Court” first appellate Court was pleased to reverse the conclusion of the trial Court limited to subject land admeasuring 9 marlas on the finding that the jamabandi reflects plaintiff’s name recorded as co­owner in possession of the said property. Finally, the first “48. In view of my above discussion the appeal is partly accepted to the extent that the appellant­plaintiff is owner in possession of land measuring 9 marlas out of the land measuring 4 Kanals 13 Mis. As fully detailed in the sub head note (ii) of the plaint. Therefore, the findings of the learned trial Court with regard to this effect only are reversed and set aside. However, there is nothing on record calling interference of this court in the remaining findings arrived at by the Ld. Trial Court which are based on the correct appreciation of facts and evidence on the file. No order as to costs. Decree sheet be prepared. The learned lower court record be returned and appeal file be consigned to the record room.” The first appellate Court vide another judgment of even date, however, upheld the judgment of the trial Court in reference to C.S. No. 172/2002 in toto. 15. Nirmal Gill (respondent No. 1) filed second appeals before the High Court being R.S.A. No. 2901/2012 and R.S.A. No. 3881/2012 against Civil Appeal No. 3/2009 and Civil Appeal No. 4/2009 respectively. While admitting the second appeal, the High Court formulated two questions as substantial questions of law. “1. Whether the findings of the learned Courts below are sustainable in view of the fact that the question of 2. Whether the findings of the learned courts below are in accordance with the settled provisions of law and the questions of law and the question of fraud and limitation had been wrongly decided by the courts below?” 16. After reappreciating the factual matrix and the evidence on record, the High Court opined that the trial Court as well as the first appellate Court committed manifest error and misapplied the settled legal position. On this finding, the High Court went on to reverse the concurrent opinion of two Courts. 17. Being aggrieved, the defendant Nos. 1, 4 to 6 and the subsequent purchasers approached this Court by way of present appeals. The former set of appeals [arising out of SLP(C) Nos. 21326­21327/2019] had been preferred by defendant Nos. 1, 4 to 6 and the latter [arising out of SLP(C) Nos. 29775­29776/2019] by the subsequent purchasers. 18. According to the defendant Nos. 1, 4 to 6, interference by the High Court in the present matter was unwarranted as the same did not involve any substantial question of law. It was urged that judgments of the trial Court, as well as, the first appellate Court have been passed after proper appreciation of evidence, therefore, the High Court ought not to have interfered with the concurrent findings of facts – as re­appreciation of evidence is not permissible in second appeal. It was then argued that the plea of fraud was not taken in plaint in terms of Order 6 Rule 4 of the Civil Procedure Code7 and thus, the same cannot be considered. On merits, the aforesaid defendants contended that the evidence of the plaintiff was self­contradictory, as she first claimed that her signatures were taken on blank papers and then denied her signatures occurring on the 1990 GPA. The plea that the signatures were taken on blank papers was not substantiated as the 1990 GPA was executed on stamp papers. Further, the High Court observed that there was no need of the 1990 GPA when the 1963 GPA was in existence, without noting that the 1963 GPA was jointly executed by all the legal heirs of Harbans Singh; while the 1990 GPA was exclusively executed by the plaintiff in reference to her share in the suit property. The High Court then noted that the defendant No. 1 did not lead evidence to avoid being cross examined whilst ignoring the fact that she was residing abroad at the relevant time. The signatures of the plaintiff as well as the attesting witness Teja Singh Lamberdar For short, “the CPC” were examined by expert Arvind Sood (DW7) and he had opined that the same are genuine. As regards the address of the plaintiff wrongly mentioned in the 1990 GPA as 775 instead of 875, it was argued that the plaintiff denied her address only to support her case. The defendant No. 4 had categorically deposed in his evidence that the plaintiff had been living at 775 from 1987 to 1995. Further, the plaintiff’s witness ­ PW4 had read over the recitals of the 1990 GPA to the plaintiff, who appended her signatures upon being satisfied about its correctness. The High Court exceeded its jurisdiction in observing that PW4 was not declared hostile due to reasons best known to plaintiff’s counsel; and disregarding his evidence merely because he went to school with the defendant No. 4. The aforesaid defendants then urged that the payment of consideration received in lieu of sales made through the attorney was duly passed on to the plaintiff. Regarding the aspect of payment of Rs.5 lakhs to son of the plaintiff, Charanjit Singh, the same was not raised before the trial Court. Further, if he had carried the said cash with him from Delhi to Punjab, then there was no reason why he could not carry it back. As regards rights of the subsequent purchasers, it was urged that there was no dispute till 2001 and therefore, the aforesaid purchasers could not have doubted before purchasing. 19. The subsequent purchasers would submit that before purchasing the plot at Jalandhar, they duly verified the title deeds as also the correctness and genuineness of the 1990 GPA. The 1990 GPA is a registered document and enquiries were made by verifying the same in the Sub­Registrar’s office and only after being satisfied, the said plot was purchased bonafide for 20. The argument put forth by Nirmal Gill (respondent No. 1 ­ plaintiff) was that the High Court had rightly reversed the decisions of the trial Court and the first appellate Court, which were contrary to evidence brought on record and against the settled principles of law. It was submitted that after the death of Harbans Singh, defendant Nos. 3 and 4 were taking up the cultivation of the joint land with permission of the plaintiff, which shows that they enjoyed active confidence of the plaintiff. It was submitted that the plaintiff had never executed any GPA or sale deed in favour of the defendants. It was urged that the 1990 GPA was laden with many discrepancies which prove it being a product of fraud and forgery. The address of the plaintiff had wrongly been mentioned as 775 instead of 875 in the 1990 GPA as well as in the stamp vendor’s record. Further, the scribe (PW4) who claimed to have prepared it on the instructions of the plaintiff had failed to identify the plaintiff. Moreover, the PW4 was admittedly known to the defendant No. 4 since their school days. There appeared to be an alteration to the date of execution of the 1990 GPA and the serial number of the stamp paper, which showed that the same was done to suit the defendants. In regard to the documents registered on 29.06.1990, it was submitted that PW4 in his register had entered the 1990 GPA at Serial No. 390 after entering sale deed at Serial No. 388 and Special Power of Attorney in favour of defendant No. 1 at Serial No. 389, which defies reason that plaintiff first sold land to the defendant Nos. 3 and 4 and then executed GPA in respect of the said land in favour of defendant No. 1. 21. It was then contended that the attesting witnesses were defendants’ men and were not known to the plaintiff. The reason for execution of the 1990 GPA stated in its recitals was that the plaintiff was unable to look after the properties being a woman and then it was in turn executed in favour of another woman, defendant No. 1. The plaintiff’s photograph and thumb impression were also not affixed on the GPA and the same appears to have been registered by impersonating plaintiff. The handwriting expert Jassy Anand (PW10) had opined that the signatures were a result of copied forgery. With regard to the sale deeds, it was urged that the proof that the sale deeds were fabricated is that the consideration of the alleged sales had never been passed on to the plaintiff. It was pointed out that the defendants had mortgaged the joint lands several times without plaintiff’s consent as they were in need of money, to highlight the fact that they did not possess the means to purchase the lands for consideration. It was submitted that the defendants attempted to show that the consideration was paid out of proceeds received by sale of their mother’s property, however there was no evidence on record as to existence of any such property. Moreover, the attesting witness of the sale deeds could not identify the plaintiff. Similarly, the subsequent purchasers also could not identify the plaintiff. They had also failed to showcase that attempts were made in order to ascertain the genuineness of the 1990 GPA or to contact the plaintiff. The consideration of her step brothers/defendants was paid in their own names while the share of consideration of plaintiff was paid in the name of defendant No. 1. The defendant No. 4 also tried to pass off Charanjit Singh’s money returned to him as sale consideration received by him on behalf of the plaintiff in respect of sales executed by defendant No. 1. Further, it was submitted that the Special Power of Attorney dated 29.06.1990 could not be challenged as the same was not available in the Sub­Registrar’s office and was not produced by the defendants on record. The 1963 GPA could not be challenged, being a document more than thirty years old. The plaintiff and the defendant Nos. 3 to 6 were on cordial terms and hence they were in a fiduciary relationship with the plaintiff, therefore, the burden of proving that there was no presence of any fraud would lie on the defendants, which they failed to discharge. 22. We have heard Mr. T.S. Doabia, learned Senior counsel and Mr. Jagjit Singh Chhabra, learned counsel for defendant Nos. 1 and 3 to 6, Mr. Subhashish Bhowmik, learned counsel for the subsequent purchasers and Nirmal Gill, who appeared in person, as the legal representative of the plaintiff. 23. The questions that arise for our consideration in the present 1. Whether the suits filed by the plaintiff were within 2. Whether the 1990 GPA and sale deeds dated 29.06.1990 and 03.07.1990 purported to have been executed by the plaintiff is a result of fraud and forgery or whether the same had been executed by the plaintiff 24. Before venturing into the question of limitation, we deem it appropriate to examine the issue of fraud and its knowledge, which will go to the root of the case. 25. The fraud in the present lis is allegedly committed in respect of the 1990 GPA executed on 28.06.1990 and registered on 29.06.1990, and the Sale deeds executed and registered on 29.06.1990 and on 03.07.1990 respectively. We may examine the findings in respect of these documents separately. Fraud in respect of the 1990 GPA and sale deed dated 26. The plaintiff had pleaded that defendant No. 3 had come to Delhi to call her to village for the purpose of mutation of their father’s estate and accordingly, she had visited the village whereat the defendants obtained her signatures on blank papers on the pretext of preparing documents for mutation. When she learnt about the existence of the 1990 GPA and the sale deed, she verily believed that the said blank papers had been misused. However, upon production of the original GPA by the defendants during trial, she claimed that the said document is not scribed upon the blank signed papers and was instead a product of forgery and that the registration was done by impersonation. 27. In order to prove that the 1990 GPA was not executed by her, the plaintiff pointed out the discrepancies with respect to the address and alteration of the date of execution. Further, it was contended that if the reason for execution was that plaintiff is a woman, it defied logic to execute the same in favour of another woman. Reliance was placed on the testimony of the scribe (PW4), wherein he had stated that he would enter the documents in his register in order of execution, whereas the 1990 GPA which was allegedly executed on 28.09.1990 but had been entered in his register after the sale deed of 29.09.1990. The plaintiff also claimed that the attesting witnesses were not known to her. 28. Per contra, the defendants relying upon the testimony of the scribe (plaintiff’s witness ­ PW4), would urge that he (PW4) had prepared the aforesaid documents as per the instructions of the plaintiff. The defendants got the admitted signatures of Teja Singh Lamberdar, one of the attesting witnesses of the aforesaid documents, compared by the handwriting expert (DW7) and relied upon his opinion. The defendants had further relied upon the testimonies of Kultar Singh (DW2) and Avtar Singh (DW4), who identified the signatures of Teja Singh Lamberdar. 29. The trial Court while dealing with the aforesaid issue had found that the plaintiff was present in the village at the time of execution of the 1990 GPA and the sale deed dated 29.06.1990. Further, the stated documents scribed on the stamp papers purchased in name of the plaintiff, bear her signatures and endorsements made by the Sub­Registrar, evidencing its registration. Therefore, it was for the plaintiff to bring on record facts and circumstances under which fraud had been played. It was observed that had the plaintiff signed on blank papers for mutation, she would have enquired regarding the status thereof. The trial Court also noted that the signatures of the attesting witnesses were identified and proved. The trial Court then analysed the testimony of the scribe (PW4) that he had prepared the documents upon instructions of the plaintiff and read them over to her, and the plaintiff after admitting correctness of the documents had appended her signatures. The trial Court went on to observe that the scribe was plaintiff’s own witness and had not been declared hostile. Further, the plaintiff made no attempt to seek explanation from her witness (PW4) as to the sequence of the entries in his register and also as to the discrepancies in the 1990 GPA, in absence whereof, the testimony of PW4 militated against the plaintiff. The trial Court then noted that the signature of Teja Singh was proved to be genuine by DW2, DW4 and DW7 and thus concluded that the 1990 GPA and the sale deed stood proved. The relevant extracts of the judgment of the trial Court “48. Further, in my opinion, if as per the plaintiff, she gave her signatures on blank papers in the year 1990 for the purposes of sanctioning of mutation of inheritance, then whether she asked from her step brothers about those proceedings afterwards. Plaintiff is an educated lady. She knows the things very well. There is no such thing on the file that after giving her signatures on blank papers as alleged by her, she ever made any effort to ask her step brothers about those mutation proceedings. It does not appeal to reason that plaintiff would remain mum for such long period and would not ask anything about those proceedings from the defendants till as per the contention of the plaintiff, she came to know about the execution of power of attorney in the year 2001 in some family function. 51. ... The original power of attorney was put to Joginder Kaur during her cross­examination but she stated that it does not bear her signatures anywhere and she also replied that she need not see the original for this purpose because her signatures were obtained on blank papers at the instance of some person who said he would made said writing on it. 52. Here at this juncture I would like to make reference of statement of PW4 Balkar Singh because his reference would clinch the matter in controversy. PW­4 Balkar Singh is a deed writer at Tehsil Complex Dasuya. This witness in his examination in chief stated that he personally knows Joginder Kaur plaintiff and 53. The cross­examination of this witness is also relevant to be discussed. In his cross­examination, he has categorically stated that he scribed the document as the instance of Joginder Kaur, after scribing the power of attorney at his seat, he read over it to the parties, and then parties after admitting it to be correct put their signatures in the presence of the attesting witnesses. He categorically stated that Joginder Kaur plaintiff in his presence put her signatures in 64. Further the Learned Counsel for the plaintiff raised the point that when the plaintiff had not admitted the execution of power of attorney dated 28.06.1990 registered on 29.06.1990, then the defendant was required to examine the attesting witnesses of this document and in case of failure of non­examining of any of the attesting witnesses, the adverse inference should be taken against the defendants. Then at this juncture the Learned Defence Counsel raised the point that original attorney dated 28.06.90 was witnessed by Teja Singh Lambardar and Gurcharan Singh son of Gian Singh resident of Village Ludiani. He raised the point that Teja Singh Lambardar had since died. The defendant examined DW.2 Kultar Singh who deposed to this effect that the sale deed dated 25.01.1984 Ex. DW3/A was executed and Teja Singh Lambardar was one of the attesting witness of the same. Similarly, Kultar Singh DW.2 who was one of the executants of the sale deed Ex. DW3/A has identified his signature as well as signatures of Teja Singh Lambardar on the sale deed dated Ex. DW3/A and DW.4 Avatar Singh had identified the signatures of Teja Singh Lambardar on the sale deed dated 24.12.1981 Ex. DW2/A in Urdu script. DW.5 Gurdial Singh deposed that he purchased the land measuring 15 Kanals 7 Marlas from Teja Singh son of Bhag Singh and that Teja Singh vendor was Lambardar of Village Kalyanpur and he identified his signatures on the sale deed dated 15.06.1983 Ex. D5 and he further raised the point that DW.7 Arvind Sood the Hand writing Expert of the defendants got compared the signatures of Teja Singh appearing on the power of attorney dated 28.06.1990 with these signatures appearing on the above referred documents and in his report Ex. DW7/A stated that the questioned signatures as well as the disputed signatures are of one of the same person...” 30. The first appellate Court concurred with the trial Court’s findings and had held that a bare perusal of the evidence reveals that the 1990 GPA was executed by the plaintiff. Further, the haphazard entries made by the scribe will be of no avail, much less it would not disprove the registered documents. Further, the defendants cannot be burdened with the actions of the scribe, who was the plaintiff’s witness. 31. While reversing the findings of the trial Court and the first appellate Court, the High Court had observed that if the plaintiff could be available for execution of the sale deeds, it is unfathomable that the plaintiff would have ever executed the GPA. It further held that the testimony of PW4 cannot be believed as he was known to defendant No. 4 since his school days. It was observed that the 1990 GPA appears to have been executed by “In the present case, it is relevant to note that the General Power of Attorney dated 28.06.1990 contains a recital that it is being executed by the plaintiff as she is unable to look after the affairs regarding the land being a woman. In such a situation, it is opposed to all probabilities and common sense that the General Power of Attorney would have been executed in favour of another woman Harcharan Kaur, who is none other but the wife of Rattan Singh, the step brother of the plaintiff. In case, the power of attorney had to be executed, it would have been in favour of the brother himself. It is not difficult to appreciate that the plaintiff ­ Joginder Kaur being the child of Harbans Singh from his first marriage would have looked to her four step brothers being her parental family. It is natural that she would always look to them to keep alive that link to her father through her step brothers, especially as she was treated with love and affection, obviously showered upon her by them for considerations, which are apparent from the record. This is particularly understandable keeping in view the societal norms and values especially prevalent at that time. The defendants have admitted that the plaintiff maintained contact with her step brothers and would often visit and stay with them. The fraudulent intention and dishonest plan of the said defendants is apparent and can easily be inferred from the evidence on record. At this stage, it is necessary to make a mention of another General Power of Attorney 08.10.1963, purportedly executed by the plaintiff in favour of her brother Gurdial Singh. In case, such power of attorney by the plaintiff alongwith others, already stood executed, there was no requirement whatsoever for having executed another power of attorney in the year 1990. Address of plaintiff ­ Joginder Kaur was wrongly mentioned in the power of attorney as 775, Vikas Kunj/Vikas Puri, Delhi whereas there is no palpable reason for having mentioned an incorrect address in the power of attorney. There is merit in the argument that a fictitious address was deliberately inserted so that a third person may not be able to even contact the Furthermore, reliance by the learned courts below on the testimony of Balkar Singh PW 4, to accept the veracity of the General Power of Attorney and two of the sale deeds is clearly misplaced. This is so for the reason that it is a matter of record that PW 4 Balkar Singh was well known to the defendant Rattan Singh. PW 4 has testified that he knew Rattan Singh since school. Sequence of the entries in the register of PW 4, do raise a suspicion regarding the execution of the documents in question. PW 4 has testified that whenever he scribes a document, he carries out the necessary entry in his register and the documents are entered in the order in which he scribes them. It is a matter of record that the entry regarding sale deed dated 29.06.1990 is scribed at serial No. 388 i.e. prior to the entry at No. 390 in respect to the General Power of Attorney claimed to have been scribed on 28.06.1990. There is another special power of attorney purported to be executed by the plaintiff in favour of Harcharan Kaur wife of Rattan Singh. There is a cutting in date on the power of attorney insofar as the date '28' is concerned. ... The said witness was not declared hostile as per the appellant due to reasons best known to their counsel. ... In case, the plaintiff could be available for execution of the said sale deeds, it does not stand to reason, as to why she would have ever executed the General Power of Attorney in favour of Harcharan Kaur. Vide the said sale deeds, land in question was transferred to her step brothers Gurdial Singh and Rattan Singh. … The attesting witnesses of the sale deed dated 29.06.1990 were not examined. It bears reiteration that the above said facts have been discussed only to bring out the fraud perpetuated on the plaintiff ­ Joginder 32. To appreciate the findings arrived at by the Courts below, we must first see on whom the onus of proof lies. The record reveals that the disputed documents are registered. We are, therefore, guided by the settled legal principle that a document is presumed to be genuine if the same is registered, as held by this Court in Prem Singh and Ors. v. Birbal and Ors.8. The relevant portion of the said decision reads as below: “27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent 1 has not been able to rebut the said presumption.” In view thereof, in the present cases, the initial onus was on the plaintiff, who had challenged the stated registered document. 33. Be that as it may, before examining whether the plaintiff discharged that onus and thus shifted it on the defendants, we may take note of procedure prescribed for proof of execution of document. In this regard, we refer to Section 68 of the Indian Evidence Act, 18729. The same is reproduced hereunder: “68.­ Proof of execution of document required by law to be attested. ­ If a document is required by law to be attested, it shall not be used as evidence until one For short, “the 1872 Act” attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.” 34. As the execution of the 1990 GPA and the sale deeds in the present cases is denied by the plaintiff, it became necessary for the plaintiff to examine the attesting witnesses of the disputed documents to establish her allegation about its non­execution. For, the documents had been registered on 29.06.1990 and came to be attested by Teja Singh Lamberdar and Gurcharan Singh. However, both the attesting witnesses were not examined. Indeed, Teja Singh had since died but there is nothing on record regarding availability of Gurcharan Singh. Thus, we must now advert to Section 69 of the 1872 Act which provides for proof when no attesting witness is found. The same is extracted below: “69.­ Proof where no attesting witness found.­ If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the hand writing of that person.” 35. The fact that the subject documents were executed by plaintiff and attested by Teja Singh has been established from record in the shape of evidence of PW4 as well as defendant No. 4. The signatures of Teja Singh were identified by DW2, who deposed that he was conversant with Urdu language and could identify the signature of Teja Singh, which was in Urdu language. Further, DW4 deposed that he used to pay land revenue to Teja Singh and received receipts from him. Moreover, the handwriting expert (DW7) had also compared the admitted signatures of Teja Singh with those on the disputed documents and opined that it was signed by him, while the expert produced by the plaintiff as PW10 had not examined the admitted signatures of Teja Singh. Therefore, the signatures of Teja Singh stood proved as per the opinion of expert (DW7) and stood corroborated by DW2 and DW4, independent witnesses. 36. We may now usefully advert to Section 71 of the said Act, “71.­ Proof when attesting witness denies the execution.­ If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.” 37. Here, the evidence of plaintiff’s witness­PW4 comes to aid of the defendants as the same unveils that the stated documents were prepared on the basis of instructions of the plaintiff and had been duly executed by her in the presence of the attesting 38. At this stage, it may be noted that the trial Court and the first appellate Court had relied upon the evidence of PW4. The High Court, however, proceeded on surmises and conjectures and took a view which is perverse and tenuous. In that, the ground on which the High Court rejected the evidence of PW4 is that he was known to the defendant No. 4 since his school days. We do not find it to be a correct approach to disregard the credible testimony of the witness examined by the plaintiff herself (without declaring him as a hostile witness) and especially when it had come on record that the said scribe is a regular deed writer at the Tehsil complex, Dasuya. Notably, PW4 had not been declared hostile at the instance of the plaintiff and as such, this part of his testimony would be staring at the plaintiff. 39. The plaintiff had then contended that the burden of proving that there is no involvement of fraud would be on the defendants as they enjoyed active confidence of the plaintiff. To establish the presence of active confidence, the plaintiff relied upon the testimony of DW2 and DW4 whilst pointing out that the defendants were cultivating the joint lands. The plaintiff also contended that the same was with her permission. The fact that she was on visiting terms with the defendants also shows the existence of trust and hunky­dory between the parties. 40. The trial Court had justly placed the initial burden of proof upon the plaintiff as it was her case that the subject documents were forged or product of fraud and moreso because the documents bore her signature. The first appellate Court did not elaborate on that aspect. Even assuming that the burden had shifted upon the defendants, the witness identifying signatures of the dead attesting witness was examined by the defendants. Therefore, the documents stood proved and the burden was duly discharged by the defendants. 41. The High Court, however, went on to observe that defendants had abused their position of active confidence, in the The entire exercise indeed smacks of connivance, misrepresentation and fraud. This Court would be failing in its duty, if the necessary inference is not drawn from the evidence on record. Present is a clear­ cut case of an unsuspecting sister being defrauded by her own step brothers/bhabi in whom she had reposed implicit trust. It is a clear case of misuse and abuse of the position of confidence held by the step brothers of the plaintiff. …” The requirement regarding shifting of burden onto the defendants had been succinctly discussed in Anil Rishi v. Gurbaksh Singh10, wherein this Court had held that for shifting the burden of proof, it would require more than merely pleading that the relationship is a fiduciary one and it must be proved by producing tangible evidence. The relevant extract of the said “8. The initial burden of proof would be on the plaintiff in view of Section 101 of the Evidence Act, “101. Burden of proof.—Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. existence of any fact, it is said that the burden of proof lies on that person.” 9. In terms of the said provision, the burden of proving the fact rests on the party who substantially asserts the affirmative issues and not the party who denies it. The said rule may not be universal in its application and there may be an exception thereto. The learned trial court and the High Court proceeded on the basis that the defendant was in a dominating position and there had been a fiduciary relationship between the parties. The appellant in his written statement denied and disputed the said averments made in the plaint. 10. Pleading is not evidence, far less proof. Issues are raised on the basis of the pleadings. The defendant­ appellant having not admitted or acknowledged the fiduciary relationship between the parties, indisputably, the relationship between the parties itself would be an issue. The suit will fail if both the parties do not adduce any evidence, in view of Section 102 of the Evidence Act. Thus, ordinarily, the burden of proof would be on the party who asserts the affirmative of the issue and it rests, after evidence is gone into, upon the party against whom, at the time the question arises, judgment would be given, if no further evidence were to be adduced by either side. 11. The fact that the defendant was in a dominant position must, thus, be proved by the plaintiff at the first instance. 14. But before such a finding is arrived at, the averments as regards alleged fiduciary relationship must be established before a presumption of undue influence against a person in position of active confidence is drawn. The factum of active confidence should also be established. 15. Section 111 of the Evidence Act will apply when the bona fides of a transaction is in question but not when the real nature thereof is in question. The words “active confidence” indicate that the relationship between the parties must be such that one is bound to protect the interests of the other. 16. Thus, point for determination of binding interests or which are the cases which come within the rule of active confidence would vary from case to case. If the plaintiff fails to prove the existence of the fiduciary relationship or the position of active confidence held by the defendant­appellant, the burden would lie on him as he had alleged fraud. The trial court and the High Court, therefore, in our opinion, cannot be said to be correct in holding that without anything further, the burden of proof would be on the defendant.” 42. Let us now examine if the above requirement is satisfied in the fact situation of the present case and if the defendants enjoyed active confidence of the plaintiff. It is an admitted position that the plaintiff and defendants always had cordial relationship and the plaintiff was on visiting terms. Further, the fact that the defendant Nos. 3 and 4 were cultivating the joint lands is also not disputed. The defendant Nos. 3 and 4 were cultivating the lands along with their father Harbans Singh and continued to do so even after his death. The principle underlying the reported decision must come to the aid of defendants as the plaintiff had failed to prove the fact of misuse of trust by the defendants as such. 43. Further, the plaintiff attempted to project the 1990 GPA as a doubtful document stating that the same had discrepancies with respect to the address and the alteration of the date of execution. In absence of the attesting witness and in view of the evidence of PW4 scribe, it was for the plaintiff to get PW4 declared hostile and cross examine him in order to prove that he had deposed falsely, which the plaintiff had failed to do. 44. Emphasis was laid on the entries made in the PW4 scribe’s register showing the 1990 GPA to have been executed prior to the sale deed and it was submitted that there is no logic in first giving GPA and then executing sale deed if the plaintiff was available to execute the aforesaid documents. However, the same is of no avail to the plaintiff as the 1990 GPA was in respect of all her land holdings, whereas the sale was made only in respect of land situate at Kalyanpur village. 45. The other reason weighed with the High Court that 1990 GPA was allegedly executed by the plaintiff as she being a woman is also of no consequence as the words ‘being a lady’ were preceded by ‘I am old and weak’. Thus, the primary reason for executing the 1990 GPA was that the plaintiff was not residing in Punjab at the relevant point of time and that she was old and weak, and thus unable to look after her property situate at Punjab. The stress laid upon the fact that a woman was appointed in her place is, therefore, a matter of surmises and 46. Suffice it to observe that the contention that the registration of the 1990 GPA as well as the sale deeds, had been effected by impersonating the plaintiff has not been proved. No credible and tangible evidence has been led in that regard. It is merely a bald plea set up by the plaintiff. 47. The plaintiff’s denial of being acquainted with the attesting witnesses, is, also a ruse and not genuine. For, one of the attesting witnesses Teja Singh was a lamberdar of the village. A lamberdar’s job is to collect revenue in respect of the lands and issue receipts and as a practice, the lamberdar is called for attesting documents. Thus, when the plaintiff admittedly used to visit village frequently, her denial in knowing Teja Singh is far­ fetched. This is what two Courts had opined and being a possible view, no interference by the High Court was warranted in that regard. That is beyond the scope of second appeal, as held by this Court in Satya Gupta (Smt.) alias Madhu Gupta v. Brijesh Kumar11. The relevant paragraph of the said decision is extracted “16. At the outset, we would like to point out that the findings on facts by the lower appellate court as a final court of facts, are based on appreciation of evidence and the same cannot be treated as perverse or based on no evidence. That being the position, we are of the view that the High Court, after reappreciating the evidence and without finding that the conclusions reached by the lower appellate court were not based on the evidence, reversed the conclusions on facts on the ground that the view taken by it was also a possible view on the facts. The High Court, it is well settled, while exercising jurisdiction under Section 100 CPC, cannot reverse the findings of the lower appellate court on facts merely on the ground that on the facts found by the lower appellate court another view was possible.” Fraud in respect of sale deed dated 03.07.1990 48. Even with regard to the sale deed dated 03.07.1990, the plaintiff had asserted that the same was not executed by her. It was then contended that the sale consideration had not been passed on to her which makes it evident that the sale deed was never executed by her. The plaintiff relied upon the testimony of defendant No. 4, wherein he had stated that the defendants needed money and had taken loans on the joint lands, to prove that the defendants did not possess means to pay the sale consideration. Further, it was contended that the testimony of attesting witness, Anoop Singh (DW3) cannot be considered as he failed to identify the plaintiff. 49. In contrast, the defendants had claimed that the sale consideration had been duly paid out of the sale proceeds received by selling another land belonging to their mother. The defendants placed reliance on the testimonies of the scribe (PW4) 50. The trial Court analysed the testimony of DW3 and noted that he had clearly stated the plaintiff was known to him personally. He had deposed that sale deed was executed by the plaintiff in his presence and the same was for a sum of Rs. 86,000/­. It was further held that though the witness failed to identify the photographs of the plaintiff, adverse inference cannot be drawn as the sale deed was executed in the year 1990 whereas the evidence was given in the year 2007. 51. The first appellate Court also agreed with the view taken by the trial Court whilst observing that the plaintiff would not have executed the sale deed had she not received the sale 52. The High Court yet again deviated from the approach of the trial Court and the first appellate Court and held that testimony of DW3 was of no avail to the defendants to prove the said sale deed. Because, he had no clue regarding passing of consideration to the plaintiff. Further, the defendants had failed to prove the fact of handing over consideration amount to the plaintiff. Also, defendant No. 4 and DW3 denied each other’s presence. The relevant portion of the High Court’s judgment reads as under: … Testimony of DW 3 Anoop Singh, who is one of the attesting witnesses of the sale deed dated 03.07.1990, is extremely telling of the facts of the case. DW 3 though stated that the sale deed in question was read over to Joginder Kaur in his presence and in the presence of other witness Teja Singh, Lambardar, could not even identify the plaintiff. Therefore, it is apparent that his testimony is not useful to the defendants for proving sale deed dated 03.07.1990. He did not have a clue regarding the passing of consideration in this case. DW 6 Rattan Singh has asserted that Gurcharan Singh of Ludhiana was present. DW 3 and DW 6 have denied each others presence at the time of execution of the sale deed. …” 53. Before analysing the evidence of DW3, it may be noted that since the sale deed requires attestation by two witnesses, as discussed above, the same has to be proved as per procedure laid down under Section 68 of the 1872 Act. 54. The sale deed of 03.07.1990 had been attested by Teja Singh Lamberdar and Anoop Singh (DW3). The attesting witness (DW3) was examined and he had deposed that the said sale deed was executed by the plaintiff in his presence, as well as in presence of Teja Singh and defendant No. 3. He had denied presence of any other person. He stated that the sale consideration was paid at home directly and not in his presence. Indeed, he had failed to identify plaintiff in photographs. 55. We may here refer to a decision of this Court in Damodar v. State of Rajasthan12, wherein it has been held that a hypersensitive approach ought not be taken in cases where there has been a delay in recording evidence. The relevant portion of “7. In order to consider the correctness of conclusions arrived at by the two courts below, it has to be seen whether evidence of PW 15 has been rightly accepted to be truthful and reliable. So far as PW 15 is concerned, it has to be noted that at the time of occurrence he was about 13 years of age and was a student. The incident is of October 1990. PW 15 was examined in August 1997 i.e. nearly after seven years. It cannot be lost sight of that long passage of time sometimes erases the memory and minute details are lost sight of. In this background, it has been stated that if a case is proved perfectly it is argued that it is artificial. If a case has some flaws inevitably because human beings are prone to err, it is argued that it is too imperfect. While, therefore, assessing the evidence one has to keep realities in view and not adopt a hypersensitive approach. The so­called discrepancies pointed out by the learned counsel for the appellants like the vehicle from which the witness saw the approaching bus or with which part of the offending vehicle the cycle was hit are too trifle to affect the credibility of PW 15's evidence. Filtering out these minor discrepancies, cream of the evidence remains on which the credibility of the evidence lies. That being so, the conclusions arrived at by the two courts below on evaluation of evidence do not need any interference.” In the present cases, the disputed documents were executed in the year 1990 and the evidence of DW3 was recorded in the year 2007, after a passage of 17 long years. Thus, as discussed in the preceding paragraphs, the High Court erroneously doubted the evidence of DW3 merely because he could not identify photographs of plaintiff and because the defendant No. 4 and DW3 did not mention each other’s presence at the time of 56. Be that as it may, with reference to the said sale deed, the defendant No. 4 deposed that he was present at the time of execution of the sale deed on 03.07.1990 which was executed by the plaintiff in favour of defendants No. 3 and himself. He stated that Teja Singh and Gurcharan Singh were also present. 57. To examine the correctness of opinion of the High Court in disregarding the testimony of DW3 (on the ground that he could not identify the plaintiff and that the defendant No. 4 and DW3 denied each other’s presence), we may refer to the definition of ‘attested’ under Section 3 of the Transfer of Property Act, 1882 “3.­ Interpretation Clause.­ In this Act, unless there is something repugnant in the subject or context,­ "attested", in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary.” 58. The disputed sale deed dated 03.07.1990 was signed by plaintiff as vendor and defendant No. 3 as vendee and in the presence of DW3 and the other attesting witness Teja Singh. DW3 as an attesting witness had seen both plaintiff and defendant No. 3 signing the deed and he then attested the sale deed. The High Court also failed to note that the other attesting witness being dead and his signature having been identified by DW2 and DW4, and with the testimony of PW4 scribe, the evidence of the DW3 witness stood corroborated and therefore, the same could not be disregarded. 59. In Jagdish Chand Sharma v. Narain Singh Saini (dead) through legal representatives & Ors.13, this Court held as “57.1. Viewed in premise, Section 71 of the 1872 Act has to be necessarily accorded a strict interpretation. The two contingencies permitting the play of this provision, namely, denial or failure to recollect the execution by the attesting witness produced, thus a fortiori has to be extended a meaning to ensure that the limited liberty granted by Section 71 of the 1872 Act does not in any manner efface or emasculate the essence and efficacy of Section 63 of the Act and Section 68 of the 1872 Act. The distinction between failure on the part of an attesting witness to prove the execution and attestation of a will and his or her denial of the said event or failure to recollect the same, has to be essentially maintained. Any unwarranted indulgence, permitting extra liberal flexibility to these two stipulations, would render the predication of Section 63 of the Act and Section 68 of the 1872 Act, otiose. The propounder can be initiated to the benefit of Section 71 of the 1872 Act only if the attesting witness/witnesses, who is/are alive and is/are produced and in clear terms either denies/deny the execution of the document or cannot recollect the said incident. Not only, this witness/witnesses has/have to be credible and impartial, the evidence adduced ought to demonstrate unhesitant denial of the execution of the document or authenticate real forgetfulness of such fact. If the testimony evinces a casual account of the execution and attestation of the document disregardful of truth, and thereby fails to prove these two essentials as per law, the propounder cannot be permitted to adduce other evidence under cover of Section 71 of the 1872 Act. Such a sanction would not only be incompatible with the scheme of Section 63 of the Act read with Section 68 of the 1872 Act but also would be extinctive of the paramountcy and sacrosanctity thereof, a consequence, not legislatively intended. If the evidence of the witnesses produced by the propounder is inherently worthless and lacking in credibility, Section 71 of the 1872 Act cannot be invoked to bail him (the propounder) out of the situation to facilitate a roving pursuit. In absence of any touch of truthfulness and genuineness in the overall approach, this provision, which is not a substitute of Section 63(c) of the Act and Section 68 of the 1872 Act, cannot be invoked to supplement such failed speculative endeavour.” 60. It is noteworthy that defendant No. 4 had not signed the sale deed despite being a vendee. In Aloka Bose v. Parmatma Devi and Ors.14, it has been held that signature of the vendee is not mandatory in a sale deed. The relevant portion of the said “18. In any agreement of sale, the terms are always negotiated and thereafter reduced in the form of an agreement of sale and signed by both parties or the vendor alone (unless it is by a series of offers and counter­offers by letters or other modes of recognised communication). In India, an agreement of sale signed by the vendor alone and delivered to the purchaser, and accepted by the purchaser, has always been considered to be a valid contract. In the event of breach by the vendor, it can be specifically enforced by the purchaser. There is, however, no practice of purchaser alone signing an agreement of sale. 19. The defendant next contended that the agreement of sale in this case (Ext. 2) was clearly in a form which required signatures of both the vendor and purchaser. It is pointed out that the agreement begins as: “Agreement for sale between Kanika Bose and Parmatma Devi” and not an “Agreement of sale executed by Kanika Bose in favour of Parmatma Devi”. Our attention is also drawn to the testimonium clause (the provision at the end of the instrument stating when and by whom it was signed) of the agreement, which “In witnesses whereof, the parties hereto have hereunto set and subscribed their presents.” It is therefore contended that the agreement specifically contemplated execution by both parties; and as it was not so executed, it was incomplete and unenforceable. 20. We have carefully examined the agreement (Ext. 2), a photocopy of which is produced. The testimonium portion in the agreement is in an archaic form which has lost its meaning. Parties no longer “subscribe their respective hands and seals”. It is true that the format obviously contemplates signature by both parties. But it is clear that the intention of the parties was that it should be complete on signature by only the vendor. This is evident from the fact that the document is signed by the vendor and duly witnessed by four witnesses and was delivered to the purchaser. Apart from a separate endorsement made on the date of the agreement itself (7­9­1979) by the vendor acknowledging the receipt of Rs 2001 as advance, it also contains a second endorsement (which is also duly witnessed) made on 10­10­1979 by the vendor, acknowledging the receipt of a further sum of Rs 2000 and confirming that the total earnest money received was Rs 4001. This shows that the purchaser accepted and acted in terms of the agreement which was signed, witnessed and delivered to her as a complete instrument and that she then obtained an endorsement thereon by the vendor, in regard to second payment. If the agreement was not complete, the vendor would not have received a further amount and endorsed an acknowledgment thereon on 10­10­1979. 21. Apart from the above, the evidence of the witnesses also shows that there was a concluded contract. Therefore, even though the draftsman who prepared the agreement might have used a format intended for execution by both vendor and purchaser, the manner in which the parties had proceeded, clearly demonstrated that it was intended to be executed only by the vendor alone. 22. Thus we hold that the agreement of sale (Ext. 2) signed only by the vendor was valid and enforceable by the purchaser.” 61. Since the defendant No. 4 has not signed the sale deed as a vendee, his evidence cannot be discarded. In any case, the weight of evidence of DW3 remains unassailable. Therefore, the testimony of DW3 satisfies the requirements of the conditions required for a valid attestation. 62. The plaintiff also asserted that she had not received the consideration in relation to the stated transactions and that the defendants had no means to pay the consideration. It has come on record that the defendants had mortgaged the joint lands several times as they were in need of money. Further, the defendant No. 4 after admitting to have mortgaged the land had said that he used that money to install tubewells and buy tractors. The said fact does not conclusively prove that they did not possess funds as the said loans were obtained to make investments on the joint lands and not on the personal property of the defendant No. 4. Further, the defendant No. 4 had deposed that the sale consideration was paid from the sale proceeds received by selling the land of their mother in the village Ashrafpur. Since the attesting witness had proved the execution of the sale deeds, the primary onus upon the plaintiff had not shifted unto the defendants. Further, the plaintiff was obliged to rebut the positive evidence produced by the defendants regarding payment of consideration amount to the plaintiff; but also ought to have independently proved her case of non­receipt of the consideration amount. 63. A priori, we hold that the diverse grounds urged by the plaintiff in disputing the 1990 GPA and the sale deeds dated 29.06.1990 and 03.07.1990 are, as observed hitherto, unsubstantiated and untenable. 64. The plaintiff got her admitted signatures compared with the signatures on the disputed documents by a handwriting expert, Jassy Anand (PW10) who had come to a conclusion that the disputed signatures were a result of copied forgery. On the contrary, the defendants had also got the same document examined by their expert, Arvind Sood (DW7), who had determined the disputed signatures to have been signed by plaintiff herself. 65. The trial Court and the first appellate Court had not considered the contrary opinions of the experts and chose to form their opinion based on other evidence that has come on record. In our opinion, the expert evidence produced by the plaintiff in reference to the signature of the plaintiff is of no avail, in view of divergent opinions. The ground that the documents were a result of copied forgery cannot be substantiated only on the basis of the opinion of expert (PW10). Even otherwise, the expert opinions are not a binding piece of evidence and have to be corroborated with other pieces of evidence. Suffice it to say that the plaintiff failed to prove that her signatures on the subject documents are forged. 66. Further, the 1963 GPA is claimed to have been discovered during the enquiries made by the plaintiff subsequent to attaining knowledge of the fraud. However, the said GPA was never challenged by the plaintiff. The reason cited for not challenging the said GPA is that the document being a 30­year old document could not be challenged. 67. The trial Court had observed that the plaintiff in her cross examination, gave evasive replies when confronted with the 1963 GPA, which bears her signature. She had also admitted that she was taken to Tehsil office in 1963 after her father’s death. Therefore, it could be safely accepted that the plaintiff had executed the 1963 GPA and further she had knowledge of the sanction of mutation in pursuance of that GPA. Paragraph 45 of the judgment of the trial Court is extracted below: “45. Further, another fact which reveals that plaintiff was having knowledge regarding sanctioning of mutation of inheritance, is that, prior to sanctioning of mutation of inheritance of deceased Harbans Singh, she executed power of attorney along with other defendants dated 08.10.1963 Ex. D19 in favour of Gurdial Singh regarding the management of land and she admitted this thing in her cross­examination that after the death of Harbans Singh, she was taken to Tehsil Office and when she was shown that power of attorney which bears her signatures on different points, 68. The first appellate Court and the High Court had not made any observation in that regard. 69. Since the 1963 GPA is a document which is more than 30 years old, we may advert to Section 90 of the 1872 Act, which provides for the presumption in favour of a 30­year old document. The same is extracted below: “90.­ Presumption as to documents thirty years old.­ Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that persons handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. Explanation.­­ Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable. This explanation applies also to section 81.” 70. The aforesaid provision employs the words ‘may presume’. Thus, we may now refer to Section 4 of the 1872 Act in order to see the mode of dealing with the said presumption. The same is “4.­ “May Presume”.­ Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it.” 71. The presumption in favour of a 30­year old document is, therefore, a rebuttable presumption. Nothing prevented the plaintiff to rebut the presumption by leading appropriate evidence in order to disprove the same. Since the plaintiff failed to do so, the said document would be binding on the plaintiff. As a matter of fact, the parties had acted upon the terms of the said document without any demur since 1963 and it was, therefore, not open to resile therefrom at this distance of time. Hence, the trial Court was right in holding the 1963 GPA, to be a genuine 72. The plaintiff asserted that she had attended a family function in February, 2001 and in the said function, while she was interacting with one Rustam Singh, he disclosed that the defendants have sold a portion of the joint lands. Subsequently, she made enquiries in that regard. As such, she had inspected the jamabandis of the joint lands and thereupon got knowledge about the existence of the disputed documents. Immediately upon discovery of the said documents, she filed the suits. The suits are filed within 3 years from the date of acquiring knowledge and are thus within limitation. 73. To support her case, the plaintiff relied upon the testimonies of DW3 and defendant No. 4, wherein it had come on record that the plaintiff, Nirmal Gill (respondent No. 1) and Rustam Singh were present in the aforesaid function. Nirmal Gill in her testimony as PW8 had deposed that there was a family gathering in December, 2000 whereat the plaintiff enquired from defendant Nos. 5 and 6 about the status of mutation, who informed that the mutation could not be effected until the encroachments on the lands at Jalandhar and Premgarh are cleared. Thereafter, in February 2001, there was another family gathering wherein Rustam Singh had passed on the said information to the plaintiff in her presence. 74. The trial Court, while examining the issue of limitation, had opined that when the documents were proved to have been executed by the plaintiff in 1990, it ought to have been challenged within 3 years of its execution. It was further observed that when a specific plea is taken that the plaintiff acquired knowledge about fraud recently in a family function, she was obliged to examine such person who disclosed the information and the plaintiff failed to do so. Notably, the date of the family function had been wrongly mentioned by the trial Court as December, 2001. Paragraphs 94 and 98 of the trial Court’s “94. I find merits in these arguments advanced by Learned Defence Counsel because when the plaintiff is taking a specific plea that in some family function in December, 2001 which she as well as her daughter attended, this thing came to their knowledge that the power of attorney has been forged and on the basis of that Harcharan Kaur had executed the sale deeds of the share of plaintiff, then in those circumstances the plaintiff was required to examine that person who disclosed that information to the plaintiff. But the plaintiff has not examined any that person. 98. In my opinion, when the plaintiff is specifically stating to have received the information in some family function, then she was required to examine that person from whom she received the information. But no such evidence is coming forward. Moreover, when the Court has come to the conclusion that the disputed documents were executed by Harcharan Kaur (Joginder Kaur [sic]) on dated 29.06.1990, 28.06.1990, 03.07.1990, then in those circumstances, if any fraud etc. has been played upon by the plaintiff, the plaintiff was required to file the suit within the period of three years. So apparently the suit filed by the plaintiff is barred by limitation. Therefore, the said issues stand decided in favour of the defendants and against the plaintiff.” 75. The first appellate Court in its judgment confirmed the findings of the trial Court that the suits were barred by limitation. While doing so, the first appellate Court had also proceeded on the wrong premise that the family function was held in December, 2001. Finally, the first appellate Court held that since the 1990 GPA had been proved to have been executed by plaintiff, the question of acquiring knowledge in the family function loses significance. 76. In contrast, the High Court had noted that the factum of the family function and plaintiff’s presence thereat was admitted by defendant No. 4. The High Court then went on to reverse the findings of the trial Court and the first appellate Court whilst opining the testimony of Rustam Singh cements the case of the plaintiff and it was apparent that the plaintiff had no reason to suspect her brothers at an earlier point of time and she was not even aware of the acts of the defendants. The said facts came to light only after the plaintiff conducted inquiries. The relevant portion of the High Court’s judgment is set out hereunder: … Learned courts below have further erred in holding that the suits are barred by limitation. The plaintiff's case is that she came to know about the fraud being perpetuated by her own step brothers and sister­in­law after she settled in Punjab, subsequent to the retirement of her husband and consequent increased frequency of her interaction with her relatives. Marriage of her paternal uncle's son (Taya's son) is admitted by DW 6 Rattan Singh. It is further admitted that the plaintiff was present at the said wedding. Testimony of Rustam Singh cements the case of the plaintiff. ...” 77. Before analysing the correctness of the decisions arrived at, let us see the settled legal position as to effect of fraud on limitation as prescribed in Section 17 of the Limitation Act, 196315. The said provision reads as under: for short, “the 1963 Act” “17.– Effect of fraud or mistake.­ (1) Where, in the case of any suit or application for which a period of limitation is prescribed by this Act,— (b) the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person (c) the suit or application is for relief from establish the right of the plaintiff or applicant has been fraudulently concealed the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its 78. Therefore, for invoking Section 17 of the 1963 Act, two ingredients have to be pleaded and duly proved. One is existence of a fraud and the other is discovery of such fraud. In the present case, since the plaintiff failed to establish the existence of fraud, there is no occasion for its discovery. Thus, the plaintiff cannot be extended the benefit under the said provision. 79. It must be noted that the trial Court was in error to hold that the person who has disclosed the information was not examined by the plaintiff, when it had come on record through the testimony of Kultar Singh (DW2), that Rustam Singh expired before the suits came up for trial. If so, the finding of the High Court that the testimony of Rustam Singh strengthened the case of plaintiff is ex­facie erroneous and manifestly wrong. In as much as, the said person was never examined before the Court in these proceedings. Further, the trial Court and the first appellate Court had erroneously assumed the date of function in December, 2001 in place of February, 2001. However, that will have no bearing on the finding on the factum of non­existence of fraud. The concurring findings recorded by the trial Court and the first appellate Court ­ that the documents were executed by the plaintiff ­ belies and demolishes the case of the plaintiff, as to having acquired knowledge of alleged fraud in 2001. Therefore, the High Court committed manifest error in reversing the concurrent findings of the trial Court and the first appellate Court in that regard. 80. It is settled that the standard of proof required in a civil dispute is preponderance of probabilities and not beyond reasonable doubt. In the present cases, though the discrepancies in the 1990 GPA are bound to create some doubt, however, in absence of any tangible evidence produced by the plaintiff to support the plea of fraud, it does not take the matter further. Rather, in this case the testimony of the attesting witness, scribe and other independent witnesses plainly support the case of the defendants. That evidence dispels the doubt if any; and tilt the balance in favour of the defendants. 81. Suffice it to observe that since the plaintiff could not establish the existence of fraud, it must follow that the suits are ex­facie barred by limitation. 82. As to the title of the subsequent purchasers, since the 1990 GPA had been proved, there is no reason to doubt their 83. In view of the foregoing discussion, we hold that the trial Court and the first appellate Court had appreciated the evidence properly and that view being a possible view, the High Court ought not to have disturbed the same in the second appeal and that too on surmises and conjectures. 84. In the result, the present appeals are allowed and the impugned judgment and decree passed by the High Court is set aside. The judgment and decree passed by the first appellate Court is hereby restored. No order as to costs. Pending applications, if any, are disposed of.
The Supreme Court has again stated that if a document is officially registered, it is generally considered real. The person who claims it is fake is responsible for proving that it is not. In a lawsuit started in 2001, the plaintiff claimed that in 1990, the defendants tricked her into signing blank papers. They said these papers were for preparing documents to transfer their father's property into their names. This lawsuit was rejected by the first court (Trial Court) and the court that reviewed its decision (First Appellate Court). However, a higher court, the High Court, overturned those earlier rulings and decided in favor of the plaintiff. When the case reached the Supreme Court, the main question was whether a General Power of Attorney (a document giving someone power to act for another) and property sale documents, supposedly signed by the plaintiff in 1990, were actually created through fraud and faking signatures. While looking into this, the judges noted a principle from an earlier case: an officially registered document is assumed to have been signed correctly. The court also referred to another case that said to shift the responsibility of proof, it takes more than just saying there was a relationship of trust; it must be proven with real evidence. After reviewing the evidence, the judges concluded that the plaintiff had not proven that the defendants misused her trust. Another question in these appeals was whether the lawsuits filed by the plaintiff were submitted within the legal time limit. The court also discussed how fraud can change these time limits, as described in Section 17 of the Limitation Act of 1963. The two judges, Justices AM Khanwilkar and Dinesh Maheshwari, said: "Therefore, to use Section 17 of the 1963 Act, two things must be officially claimed and proven. First, that fraud truly happened, and second, that this fraud was discovered. In this case, since the plaintiff could not prove that fraud even existed, there was no chance for it to be discovered. This means the plaintiff cannot get the advantage offered by that law." While agreeing with the appeal and canceling the High Court's decision, the judges further stated: In these cases, even though some differences in the 1990 General Power of Attorney might cause a little doubt, the plaintiff failed to provide any real evidence to support her claim of fraud. This means her claim does not progress further. Instead, the statements from the person who witnessed the signing, the person who wrote the document, and other independent witnesses clearly supported the defendants' side. That evidence removes any doubt and makes the decision favor the defendants. It is enough to say that since the plaintiff could not prove fraud, it must mean her lawsuits were clearly filed after the legal deadline. As for the ownership of the later buyers, since the 1990 General Power of Attorney was proven to be real, there is no reason to question their honest intentions. Case: Rattan Singh vs. Nirmal Gill [CIVIL APPEAL NOS. 3681 3682 OF 2020]. The judges were Justices AM Khanwilkar and Dinesh Maheshwari. Lawyers included Sr. Adv T.S. Doabia, Advocates Jagjit Singh Chhabra, and Subhashish Bhowmik.
2. These appeals take exception to the common Judgment and decree of the High Court of Punjab and Haryana at Chandigarh 1, dated 27.05.2019 in R.S.A. Nos. 2901/2012 and 3881/2012, for short, “the High Court” whereby the High Court reversed the concurrent findings of the trial Court and the first appellate Court and decreed the suits of the plaintiff. 3. For convenience, the parties are referred to as per their status in Civil Suit No. 11/2001 before the Court of Civil Judge (Senior Division), Hoshiarpur2. The admitted factual position in the present cases is that one Harbans Singh had married Gurbachan Kaur and fathered Joginder Kaur (plaintiff – now deceased) in the wedlock. After the demise of Gurbachan Kaur, Harbans Singh married Piar Kaur and in that wedlock, he (defendant No. 4), Narinder Pal Singh (defendant No. 5) and Surjit Singh (defendant No. 6). Harcharan Kaur (defendant No. 1) is the wife of defendant No. 4 and the step sister­in­law of the plaintiff. Nirmal Gill (respondent herein) is daughter and the legal representative of the plaintiff (Joginder Kaur) and Charanjit Singh is her (plaintiff’s) son. 4. Harbans Singh was the owner of various stretches of land at Nawanshahr, Jalandhar and Hoshiarpur which, upon his death for short, “the trial Court” in the year 1963, devolved upon the plaintiff, her step brothers ­ defendant Nos. 3 to 6 and her step mother in six equal shares. 5. The plaintiff and the defendant Nos. 3 to 6 had cordial relations and the plaintiff used to frequently visit her maternal 6. The dispute between the parties pertains to a General Power of Attorney (GPA) purported to have been executed by the plaintiff on 28.06.19903 in favour of defendant No. 1 and consequently sale deeds executed by defendant No. 1 as an attorney of the plaintiff. Sale deeds dated 29.06.1990 and 03.07.1990 purported to have been executed directly by the plaintiff are also disputed by the plaintiff. The case of the plaintiff is that the defendants sought her signatures on blank papers in the year 1990 under the guise of preparation and processing of documents for the purpose of getting the estate left behind by their father mutated in their names. Reposing complete trust in her step brothers, the plaintiff signed the papers and handed it over to the person tasked for that purpose by the step brothers ­ defendant Nos. 3 to 6. Thereafter, the defendant No. 3 visited plaintiff’s matrimonial home at Delhi asking her to come to village for short, “the 1990 GPA” Kalyanpur in June 1990 for getting the said mutation effected. Accordingly, the plaintiff visited the village and stayed there for 3 or 4 days. 7. Subsequent to the retirement of her husband in the year 1999, the plaintiff shifted to Mohali and being closer to her maternal home, the frequency of her meeting the relatives increased. In a wedding function of a relative at Jalandhar in February 2001, where the plaintiff and her step brothers ­ defendant Nos. 3 to 6 were present, one of her cousins Rustam Singh had mentioned to her in a conversation that the defendant Nos. 3 to 6 had sold a part of the property which they jointly held with the plaintiff. 8. Upon learning about the said fact, the plaintiff made enquiries in that regard including verified revenue records whence she learnt about existence of a GPA purported to have been executed in 19634 by all the legal heirs of Harbans Singh including the plaintiff, in favour of defendant No. 3 and based on the said GPA, the estate of Harbans Singh had already been mutated in their joint names in November 1963. The plaintiff also discovered the existence of aforementioned disputed documents for short, “the 1963 GPA” which were executed without her knowledge, during her visit to the village in the year 1990. The plaintiff claimed the aforementioned documents to be a result of fraud perpetrated upon her by her step brothers ­ defendant Nos. 3 to 6 and her step sister­in­law ­ defendant No. 1, who got those documents scribed, forged the plaintiff’s signature onto them and got them 9. On the other hand, the defendants denied that defendant No. 3 went to Delhi to call the plaintiff to village Kalyanpur. They claimed that the plaintiff had come there on her own and stayed with the defendant Nos. 3 to 6 for about a month. She had personally instructed the scribe to prepare the aforesaid documents and she had duly executed and got them registered. Therefore, all the transactions made by the plaintiff directly, as well as through her constituted attorney, are valid. 10. In this backdrop, the plaintiff instituted a suit being C.S. No. 11/2001 before the trial Court on 23.04.2001 against the aforementioned defendant Nos. 1, 3 to 6 and 19 others, seeking “i, That the sale­deed dated 05.07.2000 vide document No. 2213 of land measuring 2 Marla 5 Sarsahi being 1/2 share of the land measuring 7 Marlas 2 Sarsahi bearing Khewat No. 1401, Khatauni No. 2098, Khasra No. 6967 (3­5), situated in Village Premgarh, H.B. No. 247, Tehsil and District Hoshiarpur, as per Jamabandi for the year 1996­97 by defendant no. 1 as Mukhtar of the plaintiff in favour of defendant no. 2 is illegal, void and ineffective as against the rights of the plaintiff and that the mutation no. 13795 to the extent of 1/2 share of 65/68 th share i.e. 1/2 share of 7 Marlas 2 Sarsahi is null and void and is liable to be set aside and the plaintiff is not bound by the same. ii, That the plaintiff is owner in possession of the land measuring 9 Marla out of the land measuring 4 Kanals 13 Marla bearing Khewat No. 1400, Khatauni Khatauni No. 2166 to 2168, Khasra No. 689 (2­19) situated in Premgarh, Hoshiarpur, H.B. No. 247, Tehsil and District Hoshiarpur, as per Jamabandi for the year 1996­97. And restraining the defendant no. 1 from alienating or transferring the land in dispute in any manner on the basis of General power of attorney dt. iii, That the sale deed dated 29.05.1990 in respect of the land measuring 39 Kanals 4 Marlas out of the land measuring 235 Kanals 6 Marlas being 1/6 share out of the land measuring Kahata No. 46/60 to 67 and 36/56 14), 53//1 (2­7), situated in Village Kalyanpur, H.B. No. 144, Tehsil Dasuya, District Hoshiarpur is illegal, void and has been obtained by way of fraud and the declaration that the plaintiff is owner in possession of land in dispute. In the alternative suit of joint iv, And declaration that the General Power of Attorney dated 28.06.1990 obtained by defendant no. 1 in connivance with her husband Rattan Singh defendant no. 4 is the result of fraud and that the plaintiff is not bound by the same as well as any transaction made by the defendant no. 1 on behalf of the plaintiff are also illegal and void and are liable to be set aside and that the defendant no. 1 has no power to act as General Attorney of the plaintiff.” 11. While the said suit was pending, the plaintiff discovered existence of more documents executed by her alleged attorney and thus filed another suit being C.S. No. 173/2002 on 12.06.2002 before the trial Court, wherein the defendant No. 4 was arrayed as defendant No. 1, defendant Nos. 3, 5 and 6 were arrayed as defendant Nos. 2 to 4 respectively and defendant No. 1 was arrayed as defendant No. 11. Inder Pal Singh and Rajinder Kaur5, who purchased the plot at Jalandhar through the alleged attorney of the plaintiff, were arrayed as defendant Nos. 9 and 10. The prayer in the said suit was for declaration as hereunder: “i. That the sale deed and mutation no. 11395 regarding the land measuring 1 Kanal 6½ Marlas out of land measuring 6 Kanals 4 Marlas bearing Khewat No. 602, Khatauni No. 662, Khasra No. 85/17 (6­14) by defendant no. 11 as attorney of plaintiff in favour of defendant no. 8 situated in Village Bajwara, H.B. No. 355, Tehsil and District Hoshiarpur, as per Jamabandi for the year 1995­96 is illegal, void and that the plaintiff is not bound by the same as the same has been executed and got sanctioned in absence and without consent of the plaintiff. ii. That the sale deed dated 03.07.1990 in respect of the land measuring 34 Kanals 5 Marlas Khasra Nos. 32­ for short, “the subsequent purchasers” (1­3), 4/6 (0­2), 17//13 (less than one Marla), 18//3 (4­12), 19 (8­0), i.e. 1/6th share of 205 Kanals 9 Marlas situated in Village Mehandipur, H.B. No. 46, Tehsil Dasuya, District Hoshiarpur as per Jamabandi for the year 1983­84 and also as per Jamabandi for the year 1994­95 is illegal, void without consideration and executed in absence of the plaintiff by producing other lady by the defendant no. 1 in collusion with defendant no. 11 and his wife and the plaintiff is not bound by the same and is owner in possession of the said land. iii. That the sale deed in favour of defendant no. 7 dated 20.05.1996 registered on 22.05.1996 in respect of the land measuring 2 Kanal 10 Marlas out of land measuring 14 Kanals 18 Marlas bearing Khewat No. R/5 (8­0), now Khewat No. 123 and Khatauni No. 140 and the same khasra number as per Jamabandi for the year 1997­98 executed by defendant no. 11 situated in Village Sareenpur, H.B. No. 139, is illegal, void and without the consent of the plaintiff and the same is executed in the absence of plaintiff by playing fraud on the plaintiff and the plaintiff is owner of the said iv. That the sale deed dated 18.03.1996 in favour of defendant no. 9 executed by defendant no. 11 in respect of plot bearing no. 373­R to the extent of 1/12 share in front of which there is a road behind house no. 378­Land other side 373­L owned by Mangat Singh and Avtar Singh and other side is H.No. 372­L owned by Mool Chand Bhandari situated in Model Town, Jalandhar, as per site plan attached with the plaint is illegal, void and without the consent of the plaintiff. v. That the sale deed dated 18.03.1996 registered on 21.03.1996 in favour of defendant no. 10 executed by defendant no. 11 in respect of 1/12 share as Mukhtar by defendant no. 11 is illegal and void and without consideration and without the consent of the plaintiff, One side present No. 372­L owned by Mool Chand One side 373­L owned by Mangat Singh and Avtar situated in Model Town, Jalandhar, shown red in the site plan attached. IN THE ALTERNATIVE suit for joint possession of the properties as detailed in the heading (i) to (iii) and also declaring that the plaintiff and defendant no. 9 and 10 are in joint possession as co­sharers of the property Nos. (iv) and (v).” 12. Both the suits were resisted by defendant No. 1 and defendant Nos. 3 to 6. The subsequent purchasers also contested the suits by filing their written statement in C.S. No. 173/2002. On the basis of rival pleadings, the trial Court framed issues in the aforementioned suits as follows: “1. Whether the Plaintiff is entitled for a decree of 2. Whether the suit is not maintainable in the present 3. Whether the suit is within limitation? OPP “1. Whether the plaintiff is entitled to declaration as 2. Whether the sale deeds alleged by the plaintiff are 3. Whether the plaintiff is entitled to joint possession as alternative relief as prayed for? OPP 4. Whether the suit of the plaintiff is not maintainable? 5. Whether the suit of the plaintiff is barred by 13. The aforementioned suits came to be clubbed and evidence was recorded in the leading suit being C.S. No. 11/2001. After analyzing the evidence on record, the trial Court dismissed both the suits of the plaintiff vide a common judgment and decree 14. Aggrieved by this decision, the plaintiff preferred Civil Appeal Nos. 3 and 4 both of 2009 against C.S. No. 11/2001 and C.S. No. 173/2002 respectively before the Additional District Judge (Ad­hoc), Fast Track Court – I, Hoshiarpur 6. During the pendency of the appeals, the plaintiff expired and since then came to be represented by her legal representative Nirmal Gill (respondent No. 1 herein). The first appellate Court once again appreciated the evidence on record and after elaborate analysis, whilst upholding the findings of the trial Court on material issues, vide its judgment and decree dated 30.11.2011, partly modified the decision of the trial Court in C.S. No. 11/2001. The for short, “the first appellate Court” first appellate Court was pleased to reverse the conclusion of the trial Court limited to subject land admeasuring 9 marlas on the finding that the jamabandi reflects plaintiff’s name recorded as co­owner in possession of the said property. Finally, the first “48. In view of my above discussion the appeal is partly accepted to the extent that the appellant­plaintiff is owner in possession of land measuring 9 marlas out of the land measuring 4 Kanals 13 Mis. As fully detailed in the sub head note (ii) of the plaint. Therefore, the findings of the learned trial Court with regard to this effect only are reversed and set aside. However, there is nothing on record calling interference of this court in the remaining findings arrived at by the Ld. Trial Court which are based on the correct appreciation of facts and evidence on the file. No order as to costs. Decree sheet be prepared. The learned lower court record be returned and appeal file be consigned to the record room.” The first appellate Court vide another judgment of even date, however, upheld the judgment of the trial Court in reference to C.S. No. 172/2002 in toto. 15. Nirmal Gill (respondent No. 1) filed second appeals before the High Court being R.S.A. No. 2901/2012 and R.S.A. No. 3881/2012 against Civil Appeal No. 3/2009 and Civil Appeal No. 4/2009 respectively. While admitting the second appeal, the High Court formulated two questions as substantial questions of law. “1. Whether the findings of the learned Courts below are sustainable in view of the fact that the question of 2. Whether the findings of the learned courts below are in accordance with the settled provisions of law and the questions of law and the question of fraud and limitation had been wrongly decided by the courts below?” 16. After reappreciating the factual matrix and the evidence on record, the High Court opined that the trial Court as well as the first appellate Court committed manifest error and misapplied the settled legal position. On this finding, the High Court went on to reverse the concurrent opinion of two Courts. 17. Being aggrieved, the defendant Nos. 1, 4 to 6 and the subsequent purchasers approached this Court by way of present appeals. The former set of appeals [arising out of SLP(C) Nos. 21326­21327/2019] had been preferred by defendant Nos. 1, 4 to 6 and the latter [arising out of SLP(C) Nos. 29775­29776/2019] by the subsequent purchasers. 18. According to the defendant Nos. 1, 4 to 6, interference by the High Court in the present matter was unwarranted as the same did not involve any substantial question of law. It was urged that judgments of the trial Court, as well as, the first appellate Court have been passed after proper appreciation of evidence, therefore, the High Court ought not to have interfered with the concurrent findings of facts – as re­appreciation of evidence is not permissible in second appeal. It was then argued that the plea of fraud was not taken in plaint in terms of Order 6 Rule 4 of the Civil Procedure Code7 and thus, the same cannot be considered. On merits, the aforesaid defendants contended that the evidence of the plaintiff was self­contradictory, as she first claimed that her signatures were taken on blank papers and then denied her signatures occurring on the 1990 GPA. The plea that the signatures were taken on blank papers was not substantiated as the 1990 GPA was executed on stamp papers. Further, the High Court observed that there was no need of the 1990 GPA when the 1963 GPA was in existence, without noting that the 1963 GPA was jointly executed by all the legal heirs of Harbans Singh; while the 1990 GPA was exclusively executed by the plaintiff in reference to her share in the suit property. The High Court then noted that the defendant No. 1 did not lead evidence to avoid being cross examined whilst ignoring the fact that she was residing abroad at the relevant time. The signatures of the plaintiff as well as the attesting witness Teja Singh Lamberdar For short, “the CPC” were examined by expert Arvind Sood (DW7) and he had opined that the same are genuine. As regards the address of the plaintiff wrongly mentioned in the 1990 GPA as 775 instead of 875, it was argued that the plaintiff denied her address only to support her case. The defendant No. 4 had categorically deposed in his evidence that the plaintiff had been living at 775 from 1987 to 1995. Further, the plaintiff’s witness ­ PW4 had read over the recitals of the 1990 GPA to the plaintiff, who appended her signatures upon being satisfied about its correctness. The High Court exceeded its jurisdiction in observing that PW4 was not declared hostile due to reasons best known to plaintiff’s counsel; and disregarding his evidence merely because he went to school with the defendant No. 4. The aforesaid defendants then urged that the payment of consideration received in lieu of sales made through the attorney was duly passed on to the plaintiff. Regarding the aspect of payment of Rs.5 lakhs to son of the plaintiff, Charanjit Singh, the same was not raised before the trial Court. Further, if he had carried the said cash with him from Delhi to Punjab, then there was no reason why he could not carry it back. As regards rights of the subsequent purchasers, it was urged that there was no dispute till 2001 and therefore, the aforesaid purchasers could not have doubted before purchasing. 19. The subsequent purchasers would submit that before purchasing the plot at Jalandhar, they duly verified the title deeds as also the correctness and genuineness of the 1990 GPA. The 1990 GPA is a registered document and enquiries were made by verifying the same in the Sub­Registrar’s office and only after being satisfied, the said plot was purchased bonafide for 20. The argument put forth by Nirmal Gill (respondent No. 1 ­ plaintiff) was that the High Court had rightly reversed the decisions of the trial Court and the first appellate Court, which were contrary to evidence brought on record and against the settled principles of law. It was submitted that after the death of Harbans Singh, defendant Nos. 3 and 4 were taking up the cultivation of the joint land with permission of the plaintiff, which shows that they enjoyed active confidence of the plaintiff. It was submitted that the plaintiff had never executed any GPA or sale deed in favour of the defendants. It was urged that the 1990 GPA was laden with many discrepancies which prove it being a product of fraud and forgery. The address of the plaintiff had wrongly been mentioned as 775 instead of 875 in the 1990 GPA as well as in the stamp vendor’s record. Further, the scribe (PW4) who claimed to have prepared it on the instructions of the plaintiff had failed to identify the plaintiff. Moreover, the PW4 was admittedly known to the defendant No. 4 since their school days. There appeared to be an alteration to the date of execution of the 1990 GPA and the serial number of the stamp paper, which showed that the same was done to suit the defendants. In regard to the documents registered on 29.06.1990, it was submitted that PW4 in his register had entered the 1990 GPA at Serial No. 390 after entering sale deed at Serial No. 388 and Special Power of Attorney in favour of defendant No. 1 at Serial No. 389, which defies reason that plaintiff first sold land to the defendant Nos. 3 and 4 and then executed GPA in respect of the said land in favour of defendant No. 1. 21. It was then contended that the attesting witnesses were defendants’ men and were not known to the plaintiff. The reason for execution of the 1990 GPA stated in its recitals was that the plaintiff was unable to look after the properties being a woman and then it was in turn executed in favour of another woman, defendant No. 1. The plaintiff’s photograph and thumb impression were also not affixed on the GPA and the same appears to have been registered by impersonating plaintiff. The handwriting expert Jassy Anand (PW10) had opined that the signatures were a result of copied forgery. With regard to the sale deeds, it was urged that the proof that the sale deeds were fabricated is that the consideration of the alleged sales had never been passed on to the plaintiff. It was pointed out that the defendants had mortgaged the joint lands several times without plaintiff’s consent as they were in need of money, to highlight the fact that they did not possess the means to purchase the lands for consideration. It was submitted that the defendants attempted to show that the consideration was paid out of proceeds received by sale of their mother’s property, however there was no evidence on record as to existence of any such property. Moreover, the attesting witness of the sale deeds could not identify the plaintiff. Similarly, the subsequent purchasers also could not identify the plaintiff. They had also failed to showcase that attempts were made in order to ascertain the genuineness of the 1990 GPA or to contact the plaintiff. The consideration of her step brothers/defendants was paid in their own names while the share of consideration of plaintiff was paid in the name of defendant No. 1. The defendant No. 4 also tried to pass off Charanjit Singh’s money returned to him as sale consideration received by him on behalf of the plaintiff in respect of sales executed by defendant No. 1. Further, it was submitted that the Special Power of Attorney dated 29.06.1990 could not be challenged as the same was not available in the Sub­Registrar’s office and was not produced by the defendants on record. The 1963 GPA could not be challenged, being a document more than thirty years old. The plaintiff and the defendant Nos. 3 to 6 were on cordial terms and hence they were in a fiduciary relationship with the plaintiff, therefore, the burden of proving that there was no presence of any fraud would lie on the defendants, which they failed to discharge. 22. We have heard Mr. T.S. Doabia, learned Senior counsel and Mr. Jagjit Singh Chhabra, learned counsel for defendant Nos. 1 and 3 to 6, Mr. Subhashish Bhowmik, learned counsel for the subsequent purchasers and Nirmal Gill, who appeared in person, as the legal representative of the plaintiff. 23. The questions that arise for our consideration in the present 1. Whether the suits filed by the plaintiff were within 2. Whether the 1990 GPA and sale deeds dated 29.06.1990 and 03.07.1990 purported to have been executed by the plaintiff is a result of fraud and forgery or whether the same had been executed by the plaintiff 24. Before venturing into the question of limitation, we deem it appropriate to examine the issue of fraud and its knowledge, which will go to the root of the case. 25. The fraud in the present lis is allegedly committed in respect of the 1990 GPA executed on 28.06.1990 and registered on 29.06.1990, and the Sale deeds executed and registered on 29.06.1990 and on 03.07.1990 respectively. We may examine the findings in respect of these documents separately. Fraud in respect of the 1990 GPA and sale deed dated 26. The plaintiff had pleaded that defendant No. 3 had come to Delhi to call her to village for the purpose of mutation of their father’s estate and accordingly, she had visited the village whereat the defendants obtained her signatures on blank papers on the pretext of preparing documents for mutation. When she learnt about the existence of the 1990 GPA and the sale deed, she verily believed that the said blank papers had been misused. However, upon production of the original GPA by the defendants during trial, she claimed that the said document is not scribed upon the blank signed papers and was instead a product of forgery and that the registration was done by impersonation. 27. In order to prove that the 1990 GPA was not executed by her, the plaintiff pointed out the discrepancies with respect to the address and alteration of the date of execution. Further, it was contended that if the reason for execution was that plaintiff is a woman, it defied logic to execute the same in favour of another woman. Reliance was placed on the testimony of the scribe (PW4), wherein he had stated that he would enter the documents in his register in order of execution, whereas the 1990 GPA which was allegedly executed on 28.09.1990 but had been entered in his register after the sale deed of 29.09.1990. The plaintiff also claimed that the attesting witnesses were not known to her. 28. Per contra, the defendants relying upon the testimony of the scribe (plaintiff’s witness ­ PW4), would urge that he (PW4) had prepared the aforesaid documents as per the instructions of the plaintiff. The defendants got the admitted signatures of Teja Singh Lamberdar, one of the attesting witnesses of the aforesaid documents, compared by the handwriting expert (DW7) and relied upon his opinion. The defendants had further relied upon the testimonies of Kultar Singh (DW2) and Avtar Singh (DW4), who identified the signatures of Teja Singh Lamberdar. 29. The trial Court while dealing with the aforesaid issue had found that the plaintiff was present in the village at the time of execution of the 1990 GPA and the sale deed dated 29.06.1990. Further, the stated documents scribed on the stamp papers purchased in name of the plaintiff, bear her signatures and endorsements made by the Sub­Registrar, evidencing its registration. Therefore, it was for the plaintiff to bring on record facts and circumstances under which fraud had been played. It was observed that had the plaintiff signed on blank papers for mutation, she would have enquired regarding the status thereof. The trial Court also noted that the signatures of the attesting witnesses were identified and proved. The trial Court then analysed the testimony of the scribe (PW4) that he had prepared the documents upon instructions of the plaintiff and read them over to her, and the plaintiff after admitting correctness of the documents had appended her signatures. The trial Court went on to observe that the scribe was plaintiff’s own witness and had not been declared hostile. Further, the plaintiff made no attempt to seek explanation from her witness (PW4) as to the sequence of the entries in his register and also as to the discrepancies in the 1990 GPA, in absence whereof, the testimony of PW4 militated against the plaintiff. The trial Court then noted that the signature of Teja Singh was proved to be genuine by DW2, DW4 and DW7 and thus concluded that the 1990 GPA and the sale deed stood proved. The relevant extracts of the judgment of the trial Court “48. Further, in my opinion, if as per the plaintiff, she gave her signatures on blank papers in the year 1990 for the purposes of sanctioning of mutation of inheritance, then whether she asked from her step brothers about those proceedings afterwards. Plaintiff is an educated lady. She knows the things very well. There is no such thing on the file that after giving her signatures on blank papers as alleged by her, she ever made any effort to ask her step brothers about those mutation proceedings. It does not appeal to reason that plaintiff would remain mum for such long period and would not ask anything about those proceedings from the defendants till as per the contention of the plaintiff, she came to know about the execution of power of attorney in the year 2001 in some family function. 51. ... The original power of attorney was put to Joginder Kaur during her cross­examination but she stated that it does not bear her signatures anywhere and she also replied that she need not see the original for this purpose because her signatures were obtained on blank papers at the instance of some person who said he would made said writing on it. 52. Here at this juncture I would like to make reference of statement of PW4 Balkar Singh because his reference would clinch the matter in controversy. PW­4 Balkar Singh is a deed writer at Tehsil Complex Dasuya. This witness in his examination in chief stated that he personally knows Joginder Kaur plaintiff and 53. The cross­examination of this witness is also relevant to be discussed. In his cross­examination, he has categorically stated that he scribed the document as the instance of Joginder Kaur, after scribing the power of attorney at his seat, he read over it to the parties, and then parties after admitting it to be correct put their signatures in the presence of the attesting witnesses. He categorically stated that Joginder Kaur plaintiff in his presence put her signatures in 64. Further the Learned Counsel for the plaintiff raised the point that when the plaintiff had not admitted the execution of power of attorney dated 28.06.1990 registered on 29.06.1990, then the defendant was required to examine the attesting witnesses of this document and in case of failure of non­examining of any of the attesting witnesses, the adverse inference should be taken against the defendants. Then at this juncture the Learned Defence Counsel raised the point that original attorney dated 28.06.90 was witnessed by Teja Singh Lambardar and Gurcharan Singh son of Gian Singh resident of Village Ludiani. He raised the point that Teja Singh Lambardar had since died. The defendant examined DW.2 Kultar Singh who deposed to this effect that the sale deed dated 25.01.1984 Ex. DW3/A was executed and Teja Singh Lambardar was one of the attesting witness of the same. Similarly, Kultar Singh DW.2 who was one of the executants of the sale deed Ex. DW3/A has identified his signature as well as signatures of Teja Singh Lambardar on the sale deed dated Ex. DW3/A and DW.4 Avatar Singh had identified the signatures of Teja Singh Lambardar on the sale deed dated 24.12.1981 Ex. DW2/A in Urdu script. DW.5 Gurdial Singh deposed that he purchased the land measuring 15 Kanals 7 Marlas from Teja Singh son of Bhag Singh and that Teja Singh vendor was Lambardar of Village Kalyanpur and he identified his signatures on the sale deed dated 15.06.1983 Ex. D5 and he further raised the point that DW.7 Arvind Sood the Hand writing Expert of the defendants got compared the signatures of Teja Singh appearing on the power of attorney dated 28.06.1990 with these signatures appearing on the above referred documents and in his report Ex. DW7/A stated that the questioned signatures as well as the disputed signatures are of one of the same person...” 30. The first appellate Court concurred with the trial Court’s findings and had held that a bare perusal of the evidence reveals that the 1990 GPA was executed by the plaintiff. Further, the haphazard entries made by the scribe will be of no avail, much less it would not disprove the registered documents. Further, the defendants cannot be burdened with the actions of the scribe, who was the plaintiff’s witness. 31. While reversing the findings of the trial Court and the first appellate Court, the High Court had observed that if the plaintiff could be available for execution of the sale deeds, it is unfathomable that the plaintiff would have ever executed the GPA. It further held that the testimony of PW4 cannot be believed as he was known to defendant No. 4 since his school days. It was observed that the 1990 GPA appears to have been executed by “In the present case, it is relevant to note that the General Power of Attorney dated 28.06.1990 contains a recital that it is being executed by the plaintiff as she is unable to look after the affairs regarding the land being a woman. In such a situation, it is opposed to all probabilities and common sense that the General Power of Attorney would have been executed in favour of another woman Harcharan Kaur, who is none other but the wife of Rattan Singh, the step brother of the plaintiff. In case, the power of attorney had to be executed, it would have been in favour of the brother himself. It is not difficult to appreciate that the plaintiff ­ Joginder Kaur being the child of Harbans Singh from his first marriage would have looked to her four step brothers being her parental family. It is natural that she would always look to them to keep alive that link to her father through her step brothers, especially as she was treated with love and affection, obviously showered upon her by them for considerations, which are apparent from the record. This is particularly understandable keeping in view the societal norms and values especially prevalent at that time. The defendants have admitted that the plaintiff maintained contact with her step brothers and would often visit and stay with them. The fraudulent intention and dishonest plan of the said defendants is apparent and can easily be inferred from the evidence on record. At this stage, it is necessary to make a mention of another General Power of Attorney 08.10.1963, purportedly executed by the plaintiff in favour of her brother Gurdial Singh. In case, such power of attorney by the plaintiff alongwith others, already stood executed, there was no requirement whatsoever for having executed another power of attorney in the year 1990. Address of plaintiff ­ Joginder Kaur was wrongly mentioned in the power of attorney as 775, Vikas Kunj/Vikas Puri, Delhi whereas there is no palpable reason for having mentioned an incorrect address in the power of attorney. There is merit in the argument that a fictitious address was deliberately inserted so that a third person may not be able to even contact the Furthermore, reliance by the learned courts below on the testimony of Balkar Singh PW 4, to accept the veracity of the General Power of Attorney and two of the sale deeds is clearly misplaced. This is so for the reason that it is a matter of record that PW 4 Balkar Singh was well known to the defendant Rattan Singh. PW 4 has testified that he knew Rattan Singh since school. Sequence of the entries in the register of PW 4, do raise a suspicion regarding the execution of the documents in question. PW 4 has testified that whenever he scribes a document, he carries out the necessary entry in his register and the documents are entered in the order in which he scribes them. It is a matter of record that the entry regarding sale deed dated 29.06.1990 is scribed at serial No. 388 i.e. prior to the entry at No. 390 in respect to the General Power of Attorney claimed to have been scribed on 28.06.1990. There is another special power of attorney purported to be executed by the plaintiff in favour of Harcharan Kaur wife of Rattan Singh. There is a cutting in date on the power of attorney insofar as the date '28' is concerned. ... The said witness was not declared hostile as per the appellant due to reasons best known to their counsel. ... In case, the plaintiff could be available for execution of the said sale deeds, it does not stand to reason, as to why she would have ever executed the General Power of Attorney in favour of Harcharan Kaur. Vide the said sale deeds, land in question was transferred to her step brothers Gurdial Singh and Rattan Singh. … The attesting witnesses of the sale deed dated 29.06.1990 were not examined. It bears reiteration that the above said facts have been discussed only to bring out the fraud perpetuated on the plaintiff ­ Joginder 32. To appreciate the findings arrived at by the Courts below, we must first see on whom the onus of proof lies. The record reveals that the disputed documents are registered. We are, therefore, guided by the settled legal principle that a document is presumed to be genuine if the same is registered, as held by this Court in Prem Singh and Ors. v. Birbal and Ors.8. The relevant portion of the said decision reads as below: “27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent 1 has not been able to rebut the said presumption.” In view thereof, in the present cases, the initial onus was on the plaintiff, who had challenged the stated registered document. 33. Be that as it may, before examining whether the plaintiff discharged that onus and thus shifted it on the defendants, we may take note of procedure prescribed for proof of execution of document. In this regard, we refer to Section 68 of the Indian Evidence Act, 18729. The same is reproduced hereunder: “68.­ Proof of execution of document required by law to be attested. ­ If a document is required by law to be attested, it shall not be used as evidence until one For short, “the 1872 Act” attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.” 34. As the execution of the 1990 GPA and the sale deeds in the present cases is denied by the plaintiff, it became necessary for the plaintiff to examine the attesting witnesses of the disputed documents to establish her allegation about its non­execution. For, the documents had been registered on 29.06.1990 and came to be attested by Teja Singh Lamberdar and Gurcharan Singh. However, both the attesting witnesses were not examined. Indeed, Teja Singh had since died but there is nothing on record regarding availability of Gurcharan Singh. Thus, we must now advert to Section 69 of the 1872 Act which provides for proof when no attesting witness is found. The same is extracted below: “69.­ Proof where no attesting witness found.­ If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the hand writing of that person.” 35. The fact that the subject documents were executed by plaintiff and attested by Teja Singh has been established from record in the shape of evidence of PW4 as well as defendant No. 4. The signatures of Teja Singh were identified by DW2, who deposed that he was conversant with Urdu language and could identify the signature of Teja Singh, which was in Urdu language. Further, DW4 deposed that he used to pay land revenue to Teja Singh and received receipts from him. Moreover, the handwriting expert (DW7) had also compared the admitted signatures of Teja Singh with those on the disputed documents and opined that it was signed by him, while the expert produced by the plaintiff as PW10 had not examined the admitted signatures of Teja Singh. Therefore, the signatures of Teja Singh stood proved as per the opinion of expert (DW7) and stood corroborated by DW2 and DW4, independent witnesses. 36. We may now usefully advert to Section 71 of the said Act, “71.­ Proof when attesting witness denies the execution.­ If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.” 37. Here, the evidence of plaintiff’s witness­PW4 comes to aid of the defendants as the same unveils that the stated documents were prepared on the basis of instructions of the plaintiff and had been duly executed by her in the presence of the attesting 38. At this stage, it may be noted that the trial Court and the first appellate Court had relied upon the evidence of PW4. The High Court, however, proceeded on surmises and conjectures and took a view which is perverse and tenuous. In that, the ground on which the High Court rejected the evidence of PW4 is that he was known to the defendant No. 4 since his school days. We do not find it to be a correct approach to disregard the credible testimony of the witness examined by the plaintiff herself (without declaring him as a hostile witness) and especially when it had come on record that the said scribe is a regular deed writer at the Tehsil complex, Dasuya. Notably, PW4 had not been declared hostile at the instance of the plaintiff and as such, this part of his testimony would be staring at the plaintiff. 39. The plaintiff had then contended that the burden of proving that there is no involvement of fraud would be on the defendants as they enjoyed active confidence of the plaintiff. To establish the presence of active confidence, the plaintiff relied upon the testimony of DW2 and DW4 whilst pointing out that the defendants were cultivating the joint lands. The plaintiff also contended that the same was with her permission. The fact that she was on visiting terms with the defendants also shows the existence of trust and hunky­dory between the parties. 40. The trial Court had justly placed the initial burden of proof upon the plaintiff as it was her case that the subject documents were forged or product of fraud and moreso because the documents bore her signature. The first appellate Court did not elaborate on that aspect. Even assuming that the burden had shifted upon the defendants, the witness identifying signatures of the dead attesting witness was examined by the defendants. Therefore, the documents stood proved and the burden was duly discharged by the defendants. 41. The High Court, however, went on to observe that defendants had abused their position of active confidence, in the The entire exercise indeed smacks of connivance, misrepresentation and fraud. This Court would be failing in its duty, if the necessary inference is not drawn from the evidence on record. Present is a clear­ cut case of an unsuspecting sister being defrauded by her own step brothers/bhabi in whom she had reposed implicit trust. It is a clear case of misuse and abuse of the position of confidence held by the step brothers of the plaintiff. …” The requirement regarding shifting of burden onto the defendants had been succinctly discussed in Anil Rishi v. Gurbaksh Singh10, wherein this Court had held that for shifting the burden of proof, it would require more than merely pleading that the relationship is a fiduciary one and it must be proved by producing tangible evidence. The relevant extract of the said “8. The initial burden of proof would be on the plaintiff in view of Section 101 of the Evidence Act, “101. Burden of proof.—Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. existence of any fact, it is said that the burden of proof lies on that person.” 9. In terms of the said provision, the burden of proving the fact rests on the party who substantially asserts the affirmative issues and not the party who denies it. The said rule may not be universal in its application and there may be an exception thereto. The learned trial court and the High Court proceeded on the basis that the defendant was in a dominating position and there had been a fiduciary relationship between the parties. The appellant in his written statement denied and disputed the said averments made in the plaint. 10. Pleading is not evidence, far less proof. Issues are raised on the basis of the pleadings. The defendant­ appellant having not admitted or acknowledged the fiduciary relationship between the parties, indisputably, the relationship between the parties itself would be an issue. The suit will fail if both the parties do not adduce any evidence, in view of Section 102 of the Evidence Act. Thus, ordinarily, the burden of proof would be on the party who asserts the affirmative of the issue and it rests, after evidence is gone into, upon the party against whom, at the time the question arises, judgment would be given, if no further evidence were to be adduced by either side. 11. The fact that the defendant was in a dominant position must, thus, be proved by the plaintiff at the first instance. 14. But before such a finding is arrived at, the averments as regards alleged fiduciary relationship must be established before a presumption of undue influence against a person in position of active confidence is drawn. The factum of active confidence should also be established. 15. Section 111 of the Evidence Act will apply when the bona fides of a transaction is in question but not when the real nature thereof is in question. The words “active confidence” indicate that the relationship between the parties must be such that one is bound to protect the interests of the other. 16. Thus, point for determination of binding interests or which are the cases which come within the rule of active confidence would vary from case to case. If the plaintiff fails to prove the existence of the fiduciary relationship or the position of active confidence held by the defendant­appellant, the burden would lie on him as he had alleged fraud. The trial court and the High Court, therefore, in our opinion, cannot be said to be correct in holding that without anything further, the burden of proof would be on the defendant.” 42. Let us now examine if the above requirement is satisfied in the fact situation of the present case and if the defendants enjoyed active confidence of the plaintiff. It is an admitted position that the plaintiff and defendants always had cordial relationship and the plaintiff was on visiting terms. Further, the fact that the defendant Nos. 3 and 4 were cultivating the joint lands is also not disputed. The defendant Nos. 3 and 4 were cultivating the lands along with their father Harbans Singh and continued to do so even after his death. The principle underlying the reported decision must come to the aid of defendants as the plaintiff had failed to prove the fact of misuse of trust by the defendants as such. 43. Further, the plaintiff attempted to project the 1990 GPA as a doubtful document stating that the same had discrepancies with respect to the address and the alteration of the date of execution. In absence of the attesting witness and in view of the evidence of PW4 scribe, it was for the plaintiff to get PW4 declared hostile and cross examine him in order to prove that he had deposed falsely, which the plaintiff had failed to do. 44. Emphasis was laid on the entries made in the PW4 scribe’s register showing the 1990 GPA to have been executed prior to the sale deed and it was submitted that there is no logic in first giving GPA and then executing sale deed if the plaintiff was available to execute the aforesaid documents. However, the same is of no avail to the plaintiff as the 1990 GPA was in respect of all her land holdings, whereas the sale was made only in respect of land situate at Kalyanpur village. 45. The other reason weighed with the High Court that 1990 GPA was allegedly executed by the plaintiff as she being a woman is also of no consequence as the words ‘being a lady’ were preceded by ‘I am old and weak’. Thus, the primary reason for executing the 1990 GPA was that the plaintiff was not residing in Punjab at the relevant point of time and that she was old and weak, and thus unable to look after her property situate at Punjab. The stress laid upon the fact that a woman was appointed in her place is, therefore, a matter of surmises and 46. Suffice it to observe that the contention that the registration of the 1990 GPA as well as the sale deeds, had been effected by impersonating the plaintiff has not been proved. No credible and tangible evidence has been led in that regard. It is merely a bald plea set up by the plaintiff. 47. The plaintiff’s denial of being acquainted with the attesting witnesses, is, also a ruse and not genuine. For, one of the attesting witnesses Teja Singh was a lamberdar of the village. A lamberdar’s job is to collect revenue in respect of the lands and issue receipts and as a practice, the lamberdar is called for attesting documents. Thus, when the plaintiff admittedly used to visit village frequently, her denial in knowing Teja Singh is far­ fetched. This is what two Courts had opined and being a possible view, no interference by the High Court was warranted in that regard. That is beyond the scope of second appeal, as held by this Court in Satya Gupta (Smt.) alias Madhu Gupta v. Brijesh Kumar11. The relevant paragraph of the said decision is extracted “16. At the outset, we would like to point out that the findings on facts by the lower appellate court as a final court of facts, are based on appreciation of evidence and the same cannot be treated as perverse or based on no evidence. That being the position, we are of the view that the High Court, after reappreciating the evidence and without finding that the conclusions reached by the lower appellate court were not based on the evidence, reversed the conclusions on facts on the ground that the view taken by it was also a possible view on the facts. The High Court, it is well settled, while exercising jurisdiction under Section 100 CPC, cannot reverse the findings of the lower appellate court on facts merely on the ground that on the facts found by the lower appellate court another view was possible.” Fraud in respect of sale deed dated 03.07.1990 48. Even with regard to the sale deed dated 03.07.1990, the plaintiff had asserted that the same was not executed by her. It was then contended that the sale consideration had not been passed on to her which makes it evident that the sale deed was never executed by her. The plaintiff relied upon the testimony of defendant No. 4, wherein he had stated that the defendants needed money and had taken loans on the joint lands, to prove that the defendants did not possess means to pay the sale consideration. Further, it was contended that the testimony of attesting witness, Anoop Singh (DW3) cannot be considered as he failed to identify the plaintiff. 49. In contrast, the defendants had claimed that the sale consideration had been duly paid out of the sale proceeds received by selling another land belonging to their mother. The defendants placed reliance on the testimonies of the scribe (PW4) 50. The trial Court analysed the testimony of DW3 and noted that he had clearly stated the plaintiff was known to him personally. He had deposed that sale deed was executed by the plaintiff in his presence and the same was for a sum of Rs. 86,000/­. It was further held that though the witness failed to identify the photographs of the plaintiff, adverse inference cannot be drawn as the sale deed was executed in the year 1990 whereas the evidence was given in the year 2007. 51. The first appellate Court also agreed with the view taken by the trial Court whilst observing that the plaintiff would not have executed the sale deed had she not received the sale 52. The High Court yet again deviated from the approach of the trial Court and the first appellate Court and held that testimony of DW3 was of no avail to the defendants to prove the said sale deed. Because, he had no clue regarding passing of consideration to the plaintiff. Further, the defendants had failed to prove the fact of handing over consideration amount to the plaintiff. Also, defendant No. 4 and DW3 denied each other’s presence. The relevant portion of the High Court’s judgment reads as under: … Testimony of DW 3 Anoop Singh, who is one of the attesting witnesses of the sale deed dated 03.07.1990, is extremely telling of the facts of the case. DW 3 though stated that the sale deed in question was read over to Joginder Kaur in his presence and in the presence of other witness Teja Singh, Lambardar, could not even identify the plaintiff. Therefore, it is apparent that his testimony is not useful to the defendants for proving sale deed dated 03.07.1990. He did not have a clue regarding the passing of consideration in this case. DW 6 Rattan Singh has asserted that Gurcharan Singh of Ludhiana was present. DW 3 and DW 6 have denied each others presence at the time of execution of the sale deed. …” 53. Before analysing the evidence of DW3, it may be noted that since the sale deed requires attestation by two witnesses, as discussed above, the same has to be proved as per procedure laid down under Section 68 of the 1872 Act. 54. The sale deed of 03.07.1990 had been attested by Teja Singh Lamberdar and Anoop Singh (DW3). The attesting witness (DW3) was examined and he had deposed that the said sale deed was executed by the plaintiff in his presence, as well as in presence of Teja Singh and defendant No. 3. He had denied presence of any other person. He stated that the sale consideration was paid at home directly and not in his presence. Indeed, he had failed to identify plaintiff in photographs. 55. We may here refer to a decision of this Court in Damodar v. State of Rajasthan12, wherein it has been held that a hypersensitive approach ought not be taken in cases where there has been a delay in recording evidence. The relevant portion of “7. In order to consider the correctness of conclusions arrived at by the two courts below, it has to be seen whether evidence of PW 15 has been rightly accepted to be truthful and reliable. So far as PW 15 is concerned, it has to be noted that at the time of occurrence he was about 13 years of age and was a student. The incident is of October 1990. PW 15 was examined in August 1997 i.e. nearly after seven years. It cannot be lost sight of that long passage of time sometimes erases the memory and minute details are lost sight of. In this background, it has been stated that if a case is proved perfectly it is argued that it is artificial. If a case has some flaws inevitably because human beings are prone to err, it is argued that it is too imperfect. While, therefore, assessing the evidence one has to keep realities in view and not adopt a hypersensitive approach. The so­called discrepancies pointed out by the learned counsel for the appellants like the vehicle from which the witness saw the approaching bus or with which part of the offending vehicle the cycle was hit are too trifle to affect the credibility of PW 15's evidence. Filtering out these minor discrepancies, cream of the evidence remains on which the credibility of the evidence lies. That being so, the conclusions arrived at by the two courts below on evaluation of evidence do not need any interference.” In the present cases, the disputed documents were executed in the year 1990 and the evidence of DW3 was recorded in the year 2007, after a passage of 17 long years. Thus, as discussed in the preceding paragraphs, the High Court erroneously doubted the evidence of DW3 merely because he could not identify photographs of plaintiff and because the defendant No. 4 and DW3 did not mention each other’s presence at the time of 56. Be that as it may, with reference to the said sale deed, the defendant No. 4 deposed that he was present at the time of execution of the sale deed on 03.07.1990 which was executed by the plaintiff in favour of defendants No. 3 and himself. He stated that Teja Singh and Gurcharan Singh were also present. 57. To examine the correctness of opinion of the High Court in disregarding the testimony of DW3 (on the ground that he could not identify the plaintiff and that the defendant No. 4 and DW3 denied each other’s presence), we may refer to the definition of ‘attested’ under Section 3 of the Transfer of Property Act, 1882 “3.­ Interpretation Clause.­ In this Act, unless there is something repugnant in the subject or context,­ "attested", in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary.” 58. The disputed sale deed dated 03.07.1990 was signed by plaintiff as vendor and defendant No. 3 as vendee and in the presence of DW3 and the other attesting witness Teja Singh. DW3 as an attesting witness had seen both plaintiff and defendant No. 3 signing the deed and he then attested the sale deed. The High Court also failed to note that the other attesting witness being dead and his signature having been identified by DW2 and DW4, and with the testimony of PW4 scribe, the evidence of the DW3 witness stood corroborated and therefore, the same could not be disregarded. 59. In Jagdish Chand Sharma v. Narain Singh Saini (dead) through legal representatives & Ors.13, this Court held as “57.1. Viewed in premise, Section 71 of the 1872 Act has to be necessarily accorded a strict interpretation. The two contingencies permitting the play of this provision, namely, denial or failure to recollect the execution by the attesting witness produced, thus a fortiori has to be extended a meaning to ensure that the limited liberty granted by Section 71 of the 1872 Act does not in any manner efface or emasculate the essence and efficacy of Section 63 of the Act and Section 68 of the 1872 Act. The distinction between failure on the part of an attesting witness to prove the execution and attestation of a will and his or her denial of the said event or failure to recollect the same, has to be essentially maintained. Any unwarranted indulgence, permitting extra liberal flexibility to these two stipulations, would render the predication of Section 63 of the Act and Section 68 of the 1872 Act, otiose. The propounder can be initiated to the benefit of Section 71 of the 1872 Act only if the attesting witness/witnesses, who is/are alive and is/are produced and in clear terms either denies/deny the execution of the document or cannot recollect the said incident. Not only, this witness/witnesses has/have to be credible and impartial, the evidence adduced ought to demonstrate unhesitant denial of the execution of the document or authenticate real forgetfulness of such fact. If the testimony evinces a casual account of the execution and attestation of the document disregardful of truth, and thereby fails to prove these two essentials as per law, the propounder cannot be permitted to adduce other evidence under cover of Section 71 of the 1872 Act. Such a sanction would not only be incompatible with the scheme of Section 63 of the Act read with Section 68 of the 1872 Act but also would be extinctive of the paramountcy and sacrosanctity thereof, a consequence, not legislatively intended. If the evidence of the witnesses produced by the propounder is inherently worthless and lacking in credibility, Section 71 of the 1872 Act cannot be invoked to bail him (the propounder) out of the situation to facilitate a roving pursuit. In absence of any touch of truthfulness and genuineness in the overall approach, this provision, which is not a substitute of Section 63(c) of the Act and Section 68 of the 1872 Act, cannot be invoked to supplement such failed speculative endeavour.” 60. It is noteworthy that defendant No. 4 had not signed the sale deed despite being a vendee. In Aloka Bose v. Parmatma Devi and Ors.14, it has been held that signature of the vendee is not mandatory in a sale deed. The relevant portion of the said “18. In any agreement of sale, the terms are always negotiated and thereafter reduced in the form of an agreement of sale and signed by both parties or the vendor alone (unless it is by a series of offers and counter­offers by letters or other modes of recognised communication). In India, an agreement of sale signed by the vendor alone and delivered to the purchaser, and accepted by the purchaser, has always been considered to be a valid contract. In the event of breach by the vendor, it can be specifically enforced by the purchaser. There is, however, no practice of purchaser alone signing an agreement of sale. 19. The defendant next contended that the agreement of sale in this case (Ext. 2) was clearly in a form which required signatures of both the vendor and purchaser. It is pointed out that the agreement begins as: “Agreement for sale between Kanika Bose and Parmatma Devi” and not an “Agreement of sale executed by Kanika Bose in favour of Parmatma Devi”. Our attention is also drawn to the testimonium clause (the provision at the end of the instrument stating when and by whom it was signed) of the agreement, which “In witnesses whereof, the parties hereto have hereunto set and subscribed their presents.” It is therefore contended that the agreement specifically contemplated execution by both parties; and as it was not so executed, it was incomplete and unenforceable. 20. We have carefully examined the agreement (Ext. 2), a photocopy of which is produced. The testimonium portion in the agreement is in an archaic form which has lost its meaning. Parties no longer “subscribe their respective hands and seals”. It is true that the format obviously contemplates signature by both parties. But it is clear that the intention of the parties was that it should be complete on signature by only the vendor. This is evident from the fact that the document is signed by the vendor and duly witnessed by four witnesses and was delivered to the purchaser. Apart from a separate endorsement made on the date of the agreement itself (7­9­1979) by the vendor acknowledging the receipt of Rs 2001 as advance, it also contains a second endorsement (which is also duly witnessed) made on 10­10­1979 by the vendor, acknowledging the receipt of a further sum of Rs 2000 and confirming that the total earnest money received was Rs 4001. This shows that the purchaser accepted and acted in terms of the agreement which was signed, witnessed and delivered to her as a complete instrument and that she then obtained an endorsement thereon by the vendor, in regard to second payment. If the agreement was not complete, the vendor would not have received a further amount and endorsed an acknowledgment thereon on 10­10­1979. 21. Apart from the above, the evidence of the witnesses also shows that there was a concluded contract. Therefore, even though the draftsman who prepared the agreement might have used a format intended for execution by both vendor and purchaser, the manner in which the parties had proceeded, clearly demonstrated that it was intended to be executed only by the vendor alone. 22. Thus we hold that the agreement of sale (Ext. 2) signed only by the vendor was valid and enforceable by the purchaser.” 61. Since the defendant No. 4 has not signed the sale deed as a vendee, his evidence cannot be discarded. In any case, the weight of evidence of DW3 remains unassailable. Therefore, the testimony of DW3 satisfies the requirements of the conditions required for a valid attestation. 62. The plaintiff also asserted that she had not received the consideration in relation to the stated transactions and that the defendants had no means to pay the consideration. It has come on record that the defendants had mortgaged the joint lands several times as they were in need of money. Further, the defendant No. 4 after admitting to have mortgaged the land had said that he used that money to install tubewells and buy tractors. The said fact does not conclusively prove that they did not possess funds as the said loans were obtained to make investments on the joint lands and not on the personal property of the defendant No. 4. Further, the defendant No. 4 had deposed that the sale consideration was paid from the sale proceeds received by selling the land of their mother in the village Ashrafpur. Since the attesting witness had proved the execution of the sale deeds, the primary onus upon the plaintiff had not shifted unto the defendants. Further, the plaintiff was obliged to rebut the positive evidence produced by the defendants regarding payment of consideration amount to the plaintiff; but also ought to have independently proved her case of non­receipt of the consideration amount. 63. A priori, we hold that the diverse grounds urged by the plaintiff in disputing the 1990 GPA and the sale deeds dated 29.06.1990 and 03.07.1990 are, as observed hitherto, unsubstantiated and untenable. 64. The plaintiff got her admitted signatures compared with the signatures on the disputed documents by a handwriting expert, Jassy Anand (PW10) who had come to a conclusion that the disputed signatures were a result of copied forgery. On the contrary, the defendants had also got the same document examined by their expert, Arvind Sood (DW7), who had determined the disputed signatures to have been signed by plaintiff herself. 65. The trial Court and the first appellate Court had not considered the contrary opinions of the experts and chose to form their opinion based on other evidence that has come on record. In our opinion, the expert evidence produced by the plaintiff in reference to the signature of the plaintiff is of no avail, in view of divergent opinions. The ground that the documents were a result of copied forgery cannot be substantiated only on the basis of the opinion of expert (PW10). Even otherwise, the expert opinions are not a binding piece of evidence and have to be corroborated with other pieces of evidence. Suffice it to say that the plaintiff failed to prove that her signatures on the subject documents are forged. 66. Further, the 1963 GPA is claimed to have been discovered during the enquiries made by the plaintiff subsequent to attaining knowledge of the fraud. However, the said GPA was never challenged by the plaintiff. The reason cited for not challenging the said GPA is that the document being a 30­year old document could not be challenged. 67. The trial Court had observed that the plaintiff in her cross examination, gave evasive replies when confronted with the 1963 GPA, which bears her signature. She had also admitted that she was taken to Tehsil office in 1963 after her father’s death. Therefore, it could be safely accepted that the plaintiff had executed the 1963 GPA and further she had knowledge of the sanction of mutation in pursuance of that GPA. Paragraph 45 of the judgment of the trial Court is extracted below: “45. Further, another fact which reveals that plaintiff was having knowledge regarding sanctioning of mutation of inheritance, is that, prior to sanctioning of mutation of inheritance of deceased Harbans Singh, she executed power of attorney along with other defendants dated 08.10.1963 Ex. D19 in favour of Gurdial Singh regarding the management of land and she admitted this thing in her cross­examination that after the death of Harbans Singh, she was taken to Tehsil Office and when she was shown that power of attorney which bears her signatures on different points, 68. The first appellate Court and the High Court had not made any observation in that regard. 69. Since the 1963 GPA is a document which is more than 30 years old, we may advert to Section 90 of the 1872 Act, which provides for the presumption in favour of a 30­year old document. The same is extracted below: “90.­ Presumption as to documents thirty years old.­ Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that persons handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested. Explanation.­­ Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable. This explanation applies also to section 81.” 70. The aforesaid provision employs the words ‘may presume’. Thus, we may now refer to Section 4 of the 1872 Act in order to see the mode of dealing with the said presumption. The same is “4.­ “May Presume”.­ Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it.” 71. The presumption in favour of a 30­year old document is, therefore, a rebuttable presumption. Nothing prevented the plaintiff to rebut the presumption by leading appropriate evidence in order to disprove the same. Since the plaintiff failed to do so, the said document would be binding on the plaintiff. As a matter of fact, the parties had acted upon the terms of the said document without any demur since 1963 and it was, therefore, not open to resile therefrom at this distance of time. Hence, the trial Court was right in holding the 1963 GPA, to be a genuine 72. The plaintiff asserted that she had attended a family function in February, 2001 and in the said function, while she was interacting with one Rustam Singh, he disclosed that the defendants have sold a portion of the joint lands. Subsequently, she made enquiries in that regard. As such, she had inspected the jamabandis of the joint lands and thereupon got knowledge about the existence of the disputed documents. Immediately upon discovery of the said documents, she filed the suits. The suits are filed within 3 years from the date of acquiring knowledge and are thus within limitation. 73. To support her case, the plaintiff relied upon the testimonies of DW3 and defendant No. 4, wherein it had come on record that the plaintiff, Nirmal Gill (respondent No. 1) and Rustam Singh were present in the aforesaid function. Nirmal Gill in her testimony as PW8 had deposed that there was a family gathering in December, 2000 whereat the plaintiff enquired from defendant Nos. 5 and 6 about the status of mutation, who informed that the mutation could not be effected until the encroachments on the lands at Jalandhar and Premgarh are cleared. Thereafter, in February 2001, there was another family gathering wherein Rustam Singh had passed on the said information to the plaintiff in her presence. 74. The trial Court, while examining the issue of limitation, had opined that when the documents were proved to have been executed by the plaintiff in 1990, it ought to have been challenged within 3 years of its execution. It was further observed that when a specific plea is taken that the plaintiff acquired knowledge about fraud recently in a family function, she was obliged to examine such person who disclosed the information and the plaintiff failed to do so. Notably, the date of the family function had been wrongly mentioned by the trial Court as December, 2001. Paragraphs 94 and 98 of the trial Court’s “94. I find merits in these arguments advanced by Learned Defence Counsel because when the plaintiff is taking a specific plea that in some family function in December, 2001 which she as well as her daughter attended, this thing came to their knowledge that the power of attorney has been forged and on the basis of that Harcharan Kaur had executed the sale deeds of the share of plaintiff, then in those circumstances the plaintiff was required to examine that person who disclosed that information to the plaintiff. But the plaintiff has not examined any that person. 98. In my opinion, when the plaintiff is specifically stating to have received the information in some family function, then she was required to examine that person from whom she received the information. But no such evidence is coming forward. Moreover, when the Court has come to the conclusion that the disputed documents were executed by Harcharan Kaur (Joginder Kaur [sic]) on dated 29.06.1990, 28.06.1990, 03.07.1990, then in those circumstances, if any fraud etc. has been played upon by the plaintiff, the plaintiff was required to file the suit within the period of three years. So apparently the suit filed by the plaintiff is barred by limitation. Therefore, the said issues stand decided in favour of the defendants and against the plaintiff.” 75. The first appellate Court in its judgment confirmed the findings of the trial Court that the suits were barred by limitation. While doing so, the first appellate Court had also proceeded on the wrong premise that the family function was held in December, 2001. Finally, the first appellate Court held that since the 1990 GPA had been proved to have been executed by plaintiff, the question of acquiring knowledge in the family function loses significance. 76. In contrast, the High Court had noted that the factum of the family function and plaintiff’s presence thereat was admitted by defendant No. 4. The High Court then went on to reverse the findings of the trial Court and the first appellate Court whilst opining the testimony of Rustam Singh cements the case of the plaintiff and it was apparent that the plaintiff had no reason to suspect her brothers at an earlier point of time and she was not even aware of the acts of the defendants. The said facts came to light only after the plaintiff conducted inquiries. The relevant portion of the High Court’s judgment is set out hereunder: … Learned courts below have further erred in holding that the suits are barred by limitation. The plaintiff's case is that she came to know about the fraud being perpetuated by her own step brothers and sister­in­law after she settled in Punjab, subsequent to the retirement of her husband and consequent increased frequency of her interaction with her relatives. Marriage of her paternal uncle's son (Taya's son) is admitted by DW 6 Rattan Singh. It is further admitted that the plaintiff was present at the said wedding. Testimony of Rustam Singh cements the case of the plaintiff. ...” 77. Before analysing the correctness of the decisions arrived at, let us see the settled legal position as to effect of fraud on limitation as prescribed in Section 17 of the Limitation Act, 196315. The said provision reads as under: for short, “the 1963 Act” “17.– Effect of fraud or mistake.­ (1) Where, in the case of any suit or application for which a period of limitation is prescribed by this Act,— (b) the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person (c) the suit or application is for relief from establish the right of the plaintiff or applicant has been fraudulently concealed the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its 78. Therefore, for invoking Section 17 of the 1963 Act, two ingredients have to be pleaded and duly proved. One is existence of a fraud and the other is discovery of such fraud. In the present case, since the plaintiff failed to establish the existence of fraud, there is no occasion for its discovery. Thus, the plaintiff cannot be extended the benefit under the said provision. 79. It must be noted that the trial Court was in error to hold that the person who has disclosed the information was not examined by the plaintiff, when it had come on record through the testimony of Kultar Singh (DW2), that Rustam Singh expired before the suits came up for trial. If so, the finding of the High Court that the testimony of Rustam Singh strengthened the case of plaintiff is ex­facie erroneous and manifestly wrong. In as much as, the said person was never examined before the Court in these proceedings. Further, the trial Court and the first appellate Court had erroneously assumed the date of function in December, 2001 in place of February, 2001. However, that will have no bearing on the finding on the factum of non­existence of fraud. The concurring findings recorded by the trial Court and the first appellate Court ­ that the documents were executed by the plaintiff ­ belies and demolishes the case of the plaintiff, as to having acquired knowledge of alleged fraud in 2001. Therefore, the High Court committed manifest error in reversing the concurrent findings of the trial Court and the first appellate Court in that regard. 80. It is settled that the standard of proof required in a civil dispute is preponderance of probabilities and not beyond reasonable doubt. In the present cases, though the discrepancies in the 1990 GPA are bound to create some doubt, however, in absence of any tangible evidence produced by the plaintiff to support the plea of fraud, it does not take the matter further. Rather, in this case the testimony of the attesting witness, scribe and other independent witnesses plainly support the case of the defendants. That evidence dispels the doubt if any; and tilt the balance in favour of the defendants. 81. Suffice it to observe that since the plaintiff could not establish the existence of fraud, it must follow that the suits are ex­facie barred by limitation. 82. As to the title of the subsequent purchasers, since the 1990 GPA had been proved, there is no reason to doubt their 83. In view of the foregoing discussion, we hold that the trial Court and the first appellate Court had appreciated the evidence properly and that view being a possible view, the High Court ought not to have disturbed the same in the second appeal and that too on surmises and conjectures. 84. In the result, the present appeals are allowed and the impugned judgment and decree passed by the High Court is set aside. The judgment and decree passed by the first appellate Court is hereby restored. No order as to costs. Pending applications, if any, are disposed of.
The Supreme Court has again stated that if a document is officially registered, it is generally considered real. The person who claims it is fake is responsible for proving that it is not. In a lawsuit started in 2001, the plaintiff claimed that in 1990, the defendants tricked her into signing blank papers. They said these papers were for preparing documents to transfer their father's property into their names. This lawsuit was rejected by the first court (Trial Court) and the court that reviewed its decision (First Appellate Court). However, a higher court, the High Court, overturned those earlier rulings and decided in favor of the plaintiff. When the case reached the Supreme Court, the main question was whether a General Power of Attorney (a document giving someone power to act for another) and property sale documents, supposedly signed by the plaintiff in 1990, were actually created through fraud and faking signatures. While looking into this, the judges noted a principle from an earlier case: an officially registered document is assumed to have been signed correctly. The court also referred to another case that said to shift the responsibility of proof, it takes more than just saying there was a relationship of trust; it must be proven with real evidence. After reviewing the evidence, the judges concluded that the plaintiff had not proven that the defendants misused her trust. Another question in these appeals was whether the lawsuits filed by the plaintiff were submitted within the legal time limit. The court also discussed how fraud can change these time limits, as described in Section 17 of the Limitation Act of 1963. The two judges, Justices AM Khanwilkar and Dinesh Maheshwari, said: "Therefore, to use Section 17 of the 1963 Act, two things must be officially claimed and proven. First, that fraud truly happened, and second, that this fraud was discovered. In this case, since the plaintiff could not prove that fraud even existed, there was no chance for it to be discovered. This means the plaintiff cannot get the advantage offered by that law." While agreeing with the appeal and canceling the High Court's decision, the judges further stated: In these cases, even though some differences in the 1990 General Power of Attorney might cause a little doubt, the plaintiff failed to provide any real evidence to support her claim of fraud. This means her claim does not progress further. Instead, the statements from the person who witnessed the signing, the person who wrote the document, and other independent witnesses clearly supported the defendants' side. That evidence removes any doubt and makes the decision favor the defendants. It is enough to say that since the plaintiff could not prove fraud, it must mean her lawsuits were clearly filed after the legal deadline. As for the ownership of the later buyers, since the 1990 General Power of Attorney was proven to be real, there is no reason to question their honest intentions. Case: Rattan Singh vs. Nirmal Gill [CIVIL APPEAL NOS. 3681 3682 OF 2020]. The judges were Justices AM Khanwilkar and Dinesh Maheshwari. Lawyers included Sr. Adv T.S. Doabia, Advocates Jagjit Singh Chhabra, and Subhashish Bhowmik.
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Case :- PUBLIC INTEREST LITIGATION (PIL) No. - 17 of 2022 Counsel for Petitioner :- Rama Kant Dixit,Asok Pande,Shraddha Tripathi Counsel for Respondent :- C.S.C. In the pre-lunch session today, after hearing the parties’ counsel we had passed the following order: “Heard Sri Ashok Pandey and Ms. Shraddha Tripathi, learned counsel for the petitioner and Sri O.P. Srivastava, learned Senior Counsel, assisted by Sri Kaushalendra Yadav and Ms. Anupriya Srivastava for the Election Commission of India and Sri Abhinav N. Trivedi, learned counsel for the State through virtual mode. For the reasons to be recorded, we decline to entertain the writ petition at the instance of the petitioners and the same is accordingly dismissed.” We now proceed to record the reasons as under: The present writ petition has questioned the legality of election schedule notified by the Election Commission of India on 8.1.2022 insofar as it relates to the holding of general elections of U.P. State Assembly. The notification is annexed as Annexure-1 to the writ petition. Sri O.P. Srivastava, learned Senior Counsel assisted by Sri Kaushalendra Yadav and Ms Anupriya Srivastava, learned counsel for the Election Commission of India and Sri Abhinav N. Trivedi, learned counsel for the State, have argued that the present writ petition filed by the petitioners is not maintainable; firstly for the reason that the petitioners in paragraph-3 of the writ petition are espousing a personal interest which they claim to have in the ongoing process of election and; secondly Article 329 of the Constitution of India bars the justiciability of any such cause relating to the election of a house of State Legislature under writ jurisdiction. Sri Ashok Pandey, assisted by Ms Shraddha Tripathi, learned counsel for the petitioner in reply to the preliminary objections raised by the learned counsel for opposite parties, is unable to justify as to how a person who is espousing his personal cause can maintain a writ petition in public interest. He, however, laid emphasis that a person having an interwoven cause inclusive of personal interest in the important matters cannot be prevented to approach this Court in public interest for adjudication on questions of public importance, no matter his own interest constitutes a part Public Interest Litigation in our humble opinion must remain away from any personal interest and to this extent the objection raised by learned counsel for opposite parties has More relevant is the objection that is raised on the touchstone of Article 329 of the Constitution of India which for ready reference is reproduced hereunder: “329. Bar to interference by courts in electoral matters:- Notwithstanding anything in this Constitution - (a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 327 or Article 328, shall not be called in question in (b) No election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate The rider operating upon the exercise of jurisdiction under Article 226 of the Constitution of India in relation to the matters of election to a State Legislative Assembly has invited the attention of this Court ever since the case of Ponnuswami (N.P. Ponnuswami v. Returning officer, Namakkal Constituency and others reported in 1952 AIR 64). In a catena of judgements rendered by the apex court, it has succinctly been held that justiciability of a cause relating to election pertaining to State Legislative Assembly is permissible only through an election petition. In the present case, it is not in dispute that a notification under Section 15 of the Representation of the People Act, 1951 has already come to be issued on 8.1.2022 and it is equally not in dispute that the prayer made in the writ petition affects the election process which has already commenced with the issuance of impugned notification. Public Interest Litigation is not an exception to Article 329 of the Constitution of India, thus, the objection raised on behalf of the opposite parties deserves to be sustained and we also do not find any fruitful purpose to be served in embarking upon merit of the case once the very cause agitated in the writ petition is not justiciable. Besides the above, we are unable to estimate the magnitude of affected parties as a result of relief sought in the present writ petition which undoubtedly suffers from non- joinder of the necessary parties. For the reasons recorded above, the writ petition has thus been dismissed. Digitally signed by NARENDRA Digitally signed by ATTAU RAHMAN
The Allahabad High Court recently decided not to hear a special public lawsuit, known as a Public Interest Litigation (PIL). This lawsuit had asked the court to delay the elections for the Uttar Pradesh state government, which were planned for February-March 2022, due to a sharp increase in COVID-19 cases. Two judges, Justice Attau Rahman Masoodi and Justice Narendra Kumar Johari, heard the case. After listening to the arguments, the court refused to accept the PIL. They explained that they would officially write down their reasons for this decision at a later time. The background of the PIL This special lawsuit was brought forward by Atul Kumar and another person, both of whom intended to run in the elections. Their lawyer, Ashok Pandey, claimed that the Election Commission did not fully consider the situation when it announced the dates for polling. The lawsuit stated that these individuals wanted to run for the U.P. State Assembly. However, because the elections were set to happen in the middle of the COVID pandemic, they felt they could not safely take part. The PIL argued that according to the law, general elections for Parliament (the national government) and state Assemblies (state governments) should take place after the current government's term officially ends or when its term is nearly finished. The lawsuit claimed this meant the U.P. Assembly elections should only be held once the current Assembly's full term has been completed. The PIL pointed to "Section 15 of the Representation of People Act, 1951." This law states that elections should occur when an Assembly's term runs out or when it has been officially dissolved (ended). There is an exception, called a "proviso," in Section 15 that allows elections to be held before the Assembly is dissolved. However, the lawsuit argued that an exception cannot override the main rule it is attached to. Usually, elections happen when the existing Assembly’s term has ended or it has been dissolved. As an exception, elections can sometimes be held within six months before the current Assembly’s term ends. The lawsuit stressed that the state assembly had not yet been dissolved and its term was scheduled to end on May 14, 2022. The lawsuit also argued that the current Uttar Pradesh Assembly's term lasts until May 2022. Therefore, to start the election process during a strong third wave of COVID and to finish it more than two months before the Assembly’s term officially ends was an extremely unreasonable, unfair, and improper decision by the Election Commission. It claimed this decision violated basic rights guaranteed by Article 14 (equality before the law) and Article 21 (protection of life and personal liberty) of the Constitution. The PIL also suggested that holding elections would lead to a further spread of COVID-19, as had happened during the U.P. local village elections and the West Bengal state elections in 2021. The state government of U.P. was also named as a party in the lawsuit, along with the Election Commission. The state government stated that it did not object to the Election Commission's plan to hold elections in February-March. The PIL further argued that if the election was not delayed, people who turn 18 (reach legal voting age) in January, February, or March would not be able to get their names added to the voter list and cast their votes in the election. The lawsuit also called the decision illegal because the Election Commission's election schedule did not explain why the election was being held when the current Assembly’s term had not yet ended and it had not been dissolved. The PIL argued there was no constitutional rule requiring the U.P. Legislative Assembly election to be finished by early March. Instead, it could have been delayed for two or three months, with the process starting in April or May and the vote counting also taking place in May.
Case :- PUBLIC INTEREST LITIGATION (PIL) No. - 17 of 2022 Counsel for Petitioner :- Rama Kant Dixit,Asok Pande,Shraddha Tripathi Counsel for Respondent :- C.S.C. In the pre-lunch session today, after hearing the parties’ counsel we had passed the following order: “Heard Sri Ashok Pandey and Ms. Shraddha Tripathi, learned counsel for the petitioner and Sri O.P. Srivastava, learned Senior Counsel, assisted by Sri Kaushalendra Yadav and Ms. Anupriya Srivastava for the Election Commission of India and Sri Abhinav N. Trivedi, learned counsel for the State through virtual mode. For the reasons to be recorded, we decline to entertain the writ petition at the instance of the petitioners and the same is accordingly dismissed.” We now proceed to record the reasons as under: The present writ petition has questioned the legality of election schedule notified by the Election Commission of India on 8.1.2022 insofar as it relates to the holding of general elections of U.P. State Assembly. The notification is annexed as Annexure-1 to the writ petition. Sri O.P. Srivastava, learned Senior Counsel assisted by Sri Kaushalendra Yadav and Ms Anupriya Srivastava, learned counsel for the Election Commission of India and Sri Abhinav N. Trivedi, learned counsel for the State, have argued that the present writ petition filed by the petitioners is not maintainable; firstly for the reason that the petitioners in paragraph-3 of the writ petition are espousing a personal interest which they claim to have in the ongoing process of election and; secondly Article 329 of the Constitution of India bars the justiciability of any such cause relating to the election of a house of State Legislature under writ jurisdiction. Sri Ashok Pandey, assisted by Ms Shraddha Tripathi, learned counsel for the petitioner in reply to the preliminary objections raised by the learned counsel for opposite parties, is unable to justify as to how a person who is espousing his personal cause can maintain a writ petition in public interest. He, however, laid emphasis that a person having an interwoven cause inclusive of personal interest in the important matters cannot be prevented to approach this Court in public interest for adjudication on questions of public importance, no matter his own interest constitutes a part Public Interest Litigation in our humble opinion must remain away from any personal interest and to this extent the objection raised by learned counsel for opposite parties has More relevant is the objection that is raised on the touchstone of Article 329 of the Constitution of India which for ready reference is reproduced hereunder: “329. Bar to interference by courts in electoral matters:- Notwithstanding anything in this Constitution - (a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 327 or Article 328, shall not be called in question in (b) No election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate The rider operating upon the exercise of jurisdiction under Article 226 of the Constitution of India in relation to the matters of election to a State Legislative Assembly has invited the attention of this Court ever since the case of Ponnuswami (N.P. Ponnuswami v. Returning officer, Namakkal Constituency and others reported in 1952 AIR 64). In a catena of judgements rendered by the apex court, it has succinctly been held that justiciability of a cause relating to election pertaining to State Legislative Assembly is permissible only through an election petition. In the present case, it is not in dispute that a notification under Section 15 of the Representation of the People Act, 1951 has already come to be issued on 8.1.2022 and it is equally not in dispute that the prayer made in the writ petition affects the election process which has already commenced with the issuance of impugned notification. Public Interest Litigation is not an exception to Article 329 of the Constitution of India, thus, the objection raised on behalf of the opposite parties deserves to be sustained and we also do not find any fruitful purpose to be served in embarking upon merit of the case once the very cause agitated in the writ petition is not justiciable. Besides the above, we are unable to estimate the magnitude of affected parties as a result of relief sought in the present writ petition which undoubtedly suffers from non- joinder of the necessary parties. For the reasons recorded above, the writ petition has thus been dismissed. Digitally signed by NARENDRA Digitally signed by ATTAU RAHMAN
The Allahabad High Court recently decided not to hear a special public lawsuit, known as a Public Interest Litigation (PIL). This lawsuit had asked the court to delay the elections for the Uttar Pradesh state government, which were planned for February-March 2022, due to a sharp increase in COVID-19 cases. Two judges, Justice Attau Rahman Masoodi and Justice Narendra Kumar Johari, heard the case. After listening to the arguments, the court refused to accept the PIL. They explained that they would officially write down their reasons for this decision at a later time. The background of the PIL This special lawsuit was brought forward by Atul Kumar and another person, both of whom intended to run in the elections. Their lawyer, Ashok Pandey, claimed that the Election Commission did not fully consider the situation when it announced the dates for polling. The lawsuit stated that these individuals wanted to run for the U.P. State Assembly. However, because the elections were set to happen in the middle of the COVID pandemic, they felt they could not safely take part. The PIL argued that according to the law, general elections for Parliament (the national government) and state Assemblies (state governments) should take place after the current government's term officially ends or when its term is nearly finished. The lawsuit claimed this meant the U.P. Assembly elections should only be held once the current Assembly's full term has been completed. The PIL pointed to "Section 15 of the Representation of People Act, 1951." This law states that elections should occur when an Assembly's term runs out or when it has been officially dissolved (ended). There is an exception, called a "proviso," in Section 15 that allows elections to be held before the Assembly is dissolved. However, the lawsuit argued that an exception cannot override the main rule it is attached to. Usually, elections happen when the existing Assembly’s term has ended or it has been dissolved. As an exception, elections can sometimes be held within six months before the current Assembly’s term ends. The lawsuit stressed that the state assembly had not yet been dissolved and its term was scheduled to end on May 14, 2022. The lawsuit also argued that the current Uttar Pradesh Assembly's term lasts until May 2022. Therefore, to start the election process during a strong third wave of COVID and to finish it more than two months before the Assembly’s term officially ends was an extremely unreasonable, unfair, and improper decision by the Election Commission. It claimed this decision violated basic rights guaranteed by Article 14 (equality before the law) and Article 21 (protection of life and personal liberty) of the Constitution. The PIL also suggested that holding elections would lead to a further spread of COVID-19, as had happened during the U.P. local village elections and the West Bengal state elections in 2021. The state government of U.P. was also named as a party in the lawsuit, along with the Election Commission. The state government stated that it did not object to the Election Commission's plan to hold elections in February-March. The PIL further argued that if the election was not delayed, people who turn 18 (reach legal voting age) in January, February, or March would not be able to get their names added to the voter list and cast their votes in the election. The lawsuit also called the decision illegal because the Election Commission's election schedule did not explain why the election was being held when the current Assembly’s term had not yet ended and it had not been dissolved. The PIL argued there was no constitutional rule requiring the U.P. Legislative Assembly election to be finished by early March. Instead, it could have been delayed for two or three months, with the process starting in April or May and the vote counting also taking place in May.
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1. Exemption is allowed, subject to all just exceptions. 2. The application is disposed of. 3. The petitioners have filed the present petition, inter alia, praying that the respondents be directed to allow the petitioners to change their course / seat mutually in the interest of justice. The petitioners also impugn the policy for allocation of seats – Common Seat Allocation System, 2022 (hereafter ‘the CSAS’) – as unconstitutional. 4. Respondent no.1, University of Delhi (hereafter ‘the DU’) has framed the policy for admitting students to the colleges affiliated to the DU through the Common University Entrance Test, 2022 (hereafter ‘the CUET-2022’). CUET-2022 was conducted during the period from 06.04.2022 to 26.06.2022 for admissions to various undergraduate courses in various colleges of the DU. The said test was conducted by the National Testing Agency (hereafter ‘the NTA’) and the results for CUET-2022 were declared 5. Thereafter, the online process for applying to the CSAS commenced on 12.10.2022. The candidates were required to give the preferences of their colleges and courses in combination. The candidates were entitled to choose and select a number of such preferences / combinations. The candidates also had the option to change their preference during the period 14.10.2022 to 6. The first list of CSAS (First Round) was declared on 18.10.2022. Both the petitioners are high-performing students. Petitioner No.1 had secured 800 out of the maximum of 800 marks, and Petitioner no.2 had secured 795 out of 800 marks in CUET-2022. Accordingly, the petitioners were allocated the seats as per their respective first preference. 7. On 21.10.2022, both the petitioners received identical automated e- mails, which is set out below: As per the Allocation Policy of University of Delhi's Common Seat Allocation System 2022, you have been allocated B.A Program (Any two disciplines out of these You must "Accept Allocation" under the User Action tab through your dashboard by 4:59PM, Friday, October 21, 1. On receiving the "Approval from College Principal", proceed to pay the fee to confirm your admission. 2. Take a printout of the acknowledgement receipt. You must also check the "Query" tab regularly and respond to it in case you have received a query from the concerned To participate in Subsequent CSAS Rounds you must take the admission in this round. Only the candidates who are admitted to a Program in a College will be able to opt for upgradation in subsequent round/s. Check the schedule and adhere to the deadlines. Ignore this email if you have already taken an action.” 8. Both the petitioners had, as per their respective first preference, accepted their admission with respondent no.2 – St. Stephen’s College. Petitioner took admission to the course of BA Programme and Petitioner no.2 took admission in the course of BA (Hons) English. 9. The petitioners now feel that their first preference was incorrect and seek to alter the same. They are aggrieved as the DU has declined their request for such change. 10. The present petition has been filed to address the said grievance. According to the petitioners, their grievance can be addressed by interchanging the seats allocated to them. 11. The learned counsel appearing for the DU has stoutly contested the present petition. He submits that in terms of the impugned Policy, it is not permissible for a candidate to change the seat after the candidate has secured admission in the course and college of his / her first preference. He also drew the attention of this Court to Chapter-7 of the impugned Policy, which Based on the availability of the seats that arise due to rejections, cancellations, and withdrawals, the University may announce multiple allocation rounds. The UoD will display the vacant seats on its admission website (admission.uoi.ac.in) before every allocation round. All candidates who have applied for CSAS-2022 will be eligible for all allocation rounds, except those whose allocated seat / admission has been canceled for whatever reason. All admitted candidates who opt for the “Upgrade” option in a particular round will be considered for respective CSAS- 2022 allocation round, subject to the availability of seats. Candidates who were allocated their first preference in any round will not be considered in subsequent rounds of allocation.” 12. It is apparent from the above that the fundamental premise on which the present petition is based – that is, a candidate, who has secured admission in a course and college of his / her first preference, is entitled to participate in the further rounds for allocation of seats, notwithstanding such admission – is contrary to the CSAS. 13. The reliance placed by the petitioners on the communication dated 21.10.2022 is also misplaced. A plain reading of the said communication indicates that the candidates were advised that they would require to take admissions, as offered, in the round but would be able to opt for upgradation in subsequent rounds. The use of the word ‘upgradation’ clearly indicates that such participation in further rounds would be available only to those candidates who had not secured admission in accordance with their first preference. Clearly, those students who had secured the admission as per their first preference would have no scope of further ‘upgradation’. 14. In terms of the CSAS, the change of seats as sought by the petitioners is not permissible. 15. The petitioners have also challenged the said policy (CSAS) on the ground that it violates Articles 14 and 21 of the Constitution of India. The said challenge is unsubstantial. There is no plausible reason to hold that CSAS is arbitrary, unreasonable and falls foul of Article 14 or Article 21 of the Constitution of India. 16. It is also trite law that the courts cannot interfere with policy matters unless it is found that the said policy offends any of the constitutional guarantees. In Rachna & Ors. v. Union of India: (2021) 5 SCC 638 and in National Board of Examinations v. G. Anand Ramamurthy & Ors.: (2006) 5 SCC 515, the Supreme Court has held that courts should be slow in interfering with the policy matters. 17. It is also well settled that the remedy under Article 226 of the Constitution of India is available only where there is a legal right. This Court is not persuaded to accept that the petitioners have any right to insist on the change of their seats or to participate in fresh rounds for reallocation of the seats. 18. In view of the above, the present petition is liable to be dismissed. 19. Having stated the above, this Court is also of the view that if the right other students is not adversely affected, the respondents (DU and St. Stephen’s College) ought to consider the request made by the petitioners. 20. Petitioner no.1 – Bhavikaa Keshwani – has also addressed the Court in person. She states that she had secured 800 out of 800 marks in CUET- 2022. There is no dispute that she would otherwise be entitled to a seat of her first preference; be it BA(Hons) English or B.A Programme. She states that petitioner no.2, who had secured 795 out of 800 marks, would have secured the seat in either of the said courses as well, as other students who had secured marks much below 795 marks have been allotted seats in the course of BA Programme. She states that students who have scored less than 600 marks out of 800 marks had also secured admission in BA Programme with respondent no.2. 21. Thus, although this Court finds no ground to interfere with the CSAS, and as already held that the petitioners have no right to seek the relief as sought; considering that no prejudice would have been caused to any of the students, this Court considers it apposite to direct the respondents to consider this as a one-off case. 22. It is clarified that if the requests of the petitioners are entertained, it would not constitute a precedent. 23. The petition is disposed of in the aforesaid terms.
The Delhi High Court has rejected a case that questioned Delhi University's system for assigning seats in its colleges. This system is used for admission to different bachelor's degree programs and is based on scores from the Common University Entrance Test in 2022. Judge Vibhu Bakhru, sitting on a special court panel, stated that the challenge had no real basis. The judge saw no good reason to say that the Common Seat Allocation System (CSAS) was unfair, illogical, or against the basic rights of equality or personal freedom protected by the Indian Constitution. The court was looking at a case brought by two students. Besides questioning the CSAS, these students also wanted to swap their chosen courses or seats with each other. In the first list of admissions from the CSAS, announced on October 18, 2022, one of the students got a perfect score of 800 out of 800 in the CUET-2022 exam. The other student scored 795 marks. Because of their high scores, both students were given seats for their top-choice programs and colleges. They both accepted admission to St. Stephen's College, one for a BA Programme and the other for a BA (Hons) English course. However, later on, they decided their first choices were mistakes and asked to change them. The university turned down their request. When the court rejected their case, it pointed out that the university had previously told students they must accept the admissions offered in the current round. But, it also said they could choose to "upgrade" their choices in later rounds. The court explained that "upgradation" meant students could participate in later rounds only if they hadn't gotten their top-choice seat. Students who did get their first-choice admission had no reason to "upgrade." Therefore, under the CSAS rules, the students' request to change their seats was not allowed. The court also disagreed with the students' argument that they had a right to demand a seat change or to join new rounds of seat assignment. However, the court added that if changing the seats wouldn't negatively impact other students, Delhi University and St. Stephen's College should still think about the students' request. So, even though the court found no reason to change the CSAS and confirmed that the students didn't have a right to what they asked for, it still ordered the university and college to consider their request. This was because no harm would come to other students. The court said this should be treated as a special, single instance. Judge Bakhru made it clear that if the students' requests were granted, this decision would not set a rule or example for other students in the future.
1. Exemption is allowed, subject to all just exceptions. 2. The application is disposed of. 3. The petitioners have filed the present petition, inter alia, praying that the respondents be directed to allow the petitioners to change their course / seat mutually in the interest of justice. The petitioners also impugn the policy for allocation of seats – Common Seat Allocation System, 2022 (hereafter ‘the CSAS’) – as unconstitutional. 4. Respondent no.1, University of Delhi (hereafter ‘the DU’) has framed the policy for admitting students to the colleges affiliated to the DU through the Common University Entrance Test, 2022 (hereafter ‘the CUET-2022’). CUET-2022 was conducted during the period from 06.04.2022 to 26.06.2022 for admissions to various undergraduate courses in various colleges of the DU. The said test was conducted by the National Testing Agency (hereafter ‘the NTA’) and the results for CUET-2022 were declared 5. Thereafter, the online process for applying to the CSAS commenced on 12.10.2022. The candidates were required to give the preferences of their colleges and courses in combination. The candidates were entitled to choose and select a number of such preferences / combinations. The candidates also had the option to change their preference during the period 14.10.2022 to 6. The first list of CSAS (First Round) was declared on 18.10.2022. Both the petitioners are high-performing students. Petitioner No.1 had secured 800 out of the maximum of 800 marks, and Petitioner no.2 had secured 795 out of 800 marks in CUET-2022. Accordingly, the petitioners were allocated the seats as per their respective first preference. 7. On 21.10.2022, both the petitioners received identical automated e- mails, which is set out below: As per the Allocation Policy of University of Delhi's Common Seat Allocation System 2022, you have been allocated B.A Program (Any two disciplines out of these You must "Accept Allocation" under the User Action tab through your dashboard by 4:59PM, Friday, October 21, 1. On receiving the "Approval from College Principal", proceed to pay the fee to confirm your admission. 2. Take a printout of the acknowledgement receipt. You must also check the "Query" tab regularly and respond to it in case you have received a query from the concerned To participate in Subsequent CSAS Rounds you must take the admission in this round. Only the candidates who are admitted to a Program in a College will be able to opt for upgradation in subsequent round/s. Check the schedule and adhere to the deadlines. Ignore this email if you have already taken an action.” 8. Both the petitioners had, as per their respective first preference, accepted their admission with respondent no.2 – St. Stephen’s College. Petitioner took admission to the course of BA Programme and Petitioner no.2 took admission in the course of BA (Hons) English. 9. The petitioners now feel that their first preference was incorrect and seek to alter the same. They are aggrieved as the DU has declined their request for such change. 10. The present petition has been filed to address the said grievance. According to the petitioners, their grievance can be addressed by interchanging the seats allocated to them. 11. The learned counsel appearing for the DU has stoutly contested the present petition. He submits that in terms of the impugned Policy, it is not permissible for a candidate to change the seat after the candidate has secured admission in the course and college of his / her first preference. He also drew the attention of this Court to Chapter-7 of the impugned Policy, which Based on the availability of the seats that arise due to rejections, cancellations, and withdrawals, the University may announce multiple allocation rounds. The UoD will display the vacant seats on its admission website (admission.uoi.ac.in) before every allocation round. All candidates who have applied for CSAS-2022 will be eligible for all allocation rounds, except those whose allocated seat / admission has been canceled for whatever reason. All admitted candidates who opt for the “Upgrade” option in a particular round will be considered for respective CSAS- 2022 allocation round, subject to the availability of seats. Candidates who were allocated their first preference in any round will not be considered in subsequent rounds of allocation.” 12. It is apparent from the above that the fundamental premise on which the present petition is based – that is, a candidate, who has secured admission in a course and college of his / her first preference, is entitled to participate in the further rounds for allocation of seats, notwithstanding such admission – is contrary to the CSAS. 13. The reliance placed by the petitioners on the communication dated 21.10.2022 is also misplaced. A plain reading of the said communication indicates that the candidates were advised that they would require to take admissions, as offered, in the round but would be able to opt for upgradation in subsequent rounds. The use of the word ‘upgradation’ clearly indicates that such participation in further rounds would be available only to those candidates who had not secured admission in accordance with their first preference. Clearly, those students who had secured the admission as per their first preference would have no scope of further ‘upgradation’. 14. In terms of the CSAS, the change of seats as sought by the petitioners is not permissible. 15. The petitioners have also challenged the said policy (CSAS) on the ground that it violates Articles 14 and 21 of the Constitution of India. The said challenge is unsubstantial. There is no plausible reason to hold that CSAS is arbitrary, unreasonable and falls foul of Article 14 or Article 21 of the Constitution of India. 16. It is also trite law that the courts cannot interfere with policy matters unless it is found that the said policy offends any of the constitutional guarantees. In Rachna & Ors. v. Union of India: (2021) 5 SCC 638 and in National Board of Examinations v. G. Anand Ramamurthy & Ors.: (2006) 5 SCC 515, the Supreme Court has held that courts should be slow in interfering with the policy matters. 17. It is also well settled that the remedy under Article 226 of the Constitution of India is available only where there is a legal right. This Court is not persuaded to accept that the petitioners have any right to insist on the change of their seats or to participate in fresh rounds for reallocation of the seats. 18. In view of the above, the present petition is liable to be dismissed. 19. Having stated the above, this Court is also of the view that if the right other students is not adversely affected, the respondents (DU and St. Stephen’s College) ought to consider the request made by the petitioners. 20. Petitioner no.1 – Bhavikaa Keshwani – has also addressed the Court in person. She states that she had secured 800 out of 800 marks in CUET- 2022. There is no dispute that she would otherwise be entitled to a seat of her first preference; be it BA(Hons) English or B.A Programme. She states that petitioner no.2, who had secured 795 out of 800 marks, would have secured the seat in either of the said courses as well, as other students who had secured marks much below 795 marks have been allotted seats in the course of BA Programme. She states that students who have scored less than 600 marks out of 800 marks had also secured admission in BA Programme with respondent no.2. 21. Thus, although this Court finds no ground to interfere with the CSAS, and as already held that the petitioners have no right to seek the relief as sought; considering that no prejudice would have been caused to any of the students, this Court considers it apposite to direct the respondents to consider this as a one-off case. 22. It is clarified that if the requests of the petitioners are entertained, it would not constitute a precedent. 23. The petition is disposed of in the aforesaid terms.
The Delhi High Court has rejected a case that questioned Delhi University's system for assigning seats in its colleges. This system is used for admission to different bachelor's degree programs and is based on scores from the Common University Entrance Test in 2022. Judge Vibhu Bakhru, sitting on a special court panel, stated that the challenge had no real basis. The judge saw no good reason to say that the Common Seat Allocation System (CSAS) was unfair, illogical, or against the basic rights of equality or personal freedom protected by the Indian Constitution. The court was looking at a case brought by two students. Besides questioning the CSAS, these students also wanted to swap their chosen courses or seats with each other. In the first list of admissions from the CSAS, announced on October 18, 2022, one of the students got a perfect score of 800 out of 800 in the CUET-2022 exam. The other student scored 795 marks. Because of their high scores, both students were given seats for their top-choice programs and colleges. They both accepted admission to St. Stephen's College, one for a BA Programme and the other for a BA (Hons) English course. However, later on, they decided their first choices were mistakes and asked to change them. The university turned down their request. When the court rejected their case, it pointed out that the university had previously told students they must accept the admissions offered in the current round. But, it also said they could choose to "upgrade" their choices in later rounds. The court explained that "upgradation" meant students could participate in later rounds only if they hadn't gotten their top-choice seat. Students who did get their first-choice admission had no reason to "upgrade." Therefore, under the CSAS rules, the students' request to change their seats was not allowed. The court also disagreed with the students' argument that they had a right to demand a seat change or to join new rounds of seat assignment. However, the court added that if changing the seats wouldn't negatively impact other students, Delhi University and St. Stephen's College should still think about the students' request. So, even though the court found no reason to change the CSAS and confirmed that the students didn't have a right to what they asked for, it still ordered the university and college to consider their request. This was because no harm would come to other students. The court said this should be treated as a special, single instance. Judge Bakhru made it clear that if the students' requests were granted, this decision would not set a rule or example for other students in the future.
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2. This appeal is directed against the judgment and order dated 13.11.2019 passed by the High Court of Patna in Criminal Writ Petition No. 1492 of 2019, filed by the Appellants under Section 482 of the Code of Criminal Procedure (hereinafter referred to as ‘CrPC’) challenging the FIR No. 248/2019 dated 01.04.2019 implicating the Appellants for offences under Sections 341, 323, 379, 354, 498A read with Section 34 of the Indian Penal Code (hereinafter referred to as ‘IPC’). The High Court vide order impugned herein dismissed the same. 3. The Complainant (Respondent No. 5 herein) Tarannum Akhtar @ Soni, was married to Md. Ikram on 18.09.17. The appellants herein are the in-laws of Respondent No. 5. On 11.12.17, the said Respondent initially instituted a criminal complaint against her husband and the appellants before the Court of Chief Judicial Magistrate, Purnea alleging demand for dowry and harassment. Thereafter, when the file was put up before the Sub Divisional Judicial Magistrate Court, Purnea, for passing order at the stage of issuance of summon, the Ld. Magistrate concluded that upon perusal of material evidence no prima-facie case was made against the in-laws and that the allegations levelled against them were not specific in nature. The said court, however, took cognizance for the offence under section 498A, 323 IPC against the husband Md. Ikram, and issued summons. This dispute was eventually resolved and Respondent No. 5 herein came back to the matrimonial home. 4. Subsequently, on 01.04.19, Respondent No. 5 herein, gave another written complaint for registration of FIR under sections 341, 323, 379, 354, 498A read with Section 34 IPC against her husband Md. Ikram and the appellants herein. The complaint inter-alia alleged that all the accused were pressurizing the Respondent wife herein to purchase a car as dowry, and threatened to forcibly terminate her pregnancy if the demands were not met. 5. Aggrieved, the Husband and appellant herein filed a criminal writ petition before the Patna High Court, for quashing of the said FIR dated 01.04.19, which was dismissed vide impugned judgment. The High Court observed that the averments made in the FIR prima-facie disclosed commission of an offence and therefore the matter was required to be investigated by the police. The Appellants herein, being the niece (Respondent No. 1), Mother in-law (Respondent No. 2), Sister in-law (Respondent No. 3), and brother in law (Respondent No. 4) have thereby approached this court by way of the present Special Leave Petition. 6. The counsel for the Appellants herein contends, that the Police Officer was duty bound to conduct a preliminary inquiry before registering the FIR as this instant case falls within the categories of cases on which a preliminary enquiry may be made, as mandated by this court in Lalita Kumari Vs. Government of U.P. & Ors; 7. It is also submitted that previously in the year 2017, the Respondent wife had instituted a criminal complaint on similar allegations, whereby the Ld. Judicial Magistrate after considering the evidence issued summons only against the husband, and found that the allegations made against the appellants herein were omnibus in nature. Further, it is submitted that the FIR in question has been made with a revengeful intent, merely to harass the Appellant in-laws herein, and should be dealt with accordingly. Reliance is placed on Social Action Forum for Manav Adhikar & Anr. Vs. Union of India, Ministry of Law And Justice & Ors.2, “4. Regarding the constitutionality of Section 498-A IPC, in Sushil Kumar Sharma v. "Provision of S. 498A of Penal Code is not unconstitutional and ultra vires. Mere possibility of abuse of a provision of law does not per se invalidate a legislation. Hence plea that S. 498A has no legal or constitutional foundation is not tenable. The object of the provisions is prevention of the dowry menace. But many instances have come to light where the complaints are not bona fide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreck personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations 2. (2018) 10 SCC 443 can be appropriately dealt with. Till then the Courts have to take care of the situation within the existing frame-work.” 8. Respondent No. 1 herein i.e., the State of Bihar, contends that the present FIR pertains to offences committed in the year 2019, after assurance was given by the husband Md. Ikram before the Ld. Principal Judge Purnea, to not harass the Respondent wife for dowry, and treat her properly. However, the husband and appellants, despite the assurances, have continued their demand for dowry and threatened with forcefully terminating the Respondent wife’s pregnancy. These acts constitute a fresh cause of action and therefore the FIR in question herein dated 01.04.19, is distinct and independent, and cannot be termed as a repetition of an earlier FIR dated 11.12.17. Moreover, an investigation was carried out pursuant to the FIR and the case has been found true against all accused persons, therefore Lalita Kumari (Supra) will not apply in the present case. 9. Respondent No. 5 contends that of the total seven accused, the FIR in question was challenged by only five accused including her husband. It is argued that the impugned order is evidently accepted by the accused husband Md. Ikram @Sikandar as he has not challenged the impugned High Court judgment. Further, as far as involvement of the four accused Appellant in-laws is concerned, it is not only reflected from the averments made in the FIR, but also corroborated from the oral and documentary evidence collected by the investigating officer during investigation, culminating into filing of charge-sheet against all seven accused including the four Appellants herein. The allegations thus made in the FIR are sufficient to make out a prima facie case, and non-mentioning of pendency of Complaint case of year 2017, at the time of filing the complaint 01.04.19 is not fatal for the case of the prosecution. 10. It is further submitted that the allegations made in the FIR are serious in nature and the Respondent wife has been repeatedly tortured physically and mentally in order to fulfil the demand for dowry. Further, even if the contentions made by the Respondent No. 5 herein are disputed, by the Appellant in-laws, their veracity can be tested in trial before the Trial Court. It is further contended that this court has also taken a consistent view with regard to exercise of power under S. 482 Cr.P.C., in Rajesh Bajaj Vs. State of NCT of Delhi & Ors; (1999) 3 SCC 259, wherein it has been clearly held that even if a prima facie case is made out disclosing the ingredients of an offence, Court should not quash the complaint. Therefore, the impugned order can in no way be termed as perverse, cryptic or erroneous and therefore warrant no interference by this Hon’ble Court. 11. Having perused the relevant facts and contentions made by the Appellants and Respondents, in our considered opinion, the foremost issue which requires determination in the instant case is whether allegations made against the in-laws Appellants are in the nature of general omnibus allegations and therefore liable to 12. Before we delve into greater detail on the nature and content of allegations made, it becomes pertinent to mention that incorporation of section 498A of IPC was aimed at preventing cruelty committed upon a woman by her husband and her in-laws, by facilitating rapid state intervention. However, it is equally true, that in recent times, matrimonial litigation in the country has also increased significantly and there is a greater disaffection and friction surrounding the institution of marriage, now, more than ever. This has resulted in an increased tendency to employ provisions such as 498A IPC as instruments to settle personal scores against the husband and his relatives. 13. This Court in its judgment in Rajesh Sharma and Ors. Vs. State of U.P. & Anr; “14. Section 498-A was inserted in the statute with the laudable object of punishing cruelty at the hands of husband or his relatives against a wife particularly when such cruelty had potential to result in suicide or murder of a woman as mentioned in the statement of Objects and Reasons of the Act 46 of 1983. The expression 'cruelty' in Section 498A covers conduct which may drive the woman to commit suicide or cause grave injury (mental or physical) or danger to life or harassment with a view to coerce her to meet unlawful demand. It is a matter of serious concern that large number of cases continue to be filed under already referred to some of the statistics from the Crime Records Bureau. This Court had earlier noticed the fact that most of such complaints are filed in the heat of the moment over trivial issues. Many of such complaints are not bona fide. At the time of filing of the complaint, implications and consequences are not visualized. At times such complaints lead to uncalled for harassment not only to the accused but also to the complainant. Uncalled for arrest may ruin the chances of settlement.” 14. Previously, in the landmark judgment of this court in Arnesh Kumar Vs. State “4. There is a phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-A IPC is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed- ridden grandfathers and grand-mothers of the husbands, their sisters living abroad for decades are 15. Further in Preeti Gupta & Anr. Vs. State of Jharkhand & Anr; (2010) 7 SCC “32. It is a matter of common experience that most of these complaints under section 498A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious concern. 33. The learned members of the Bar have enormous social responsibility and obligation to ensure that the social fiber of family life is not ruined or demolished. They must ensure that exaggerated versions of small incidents should not be reflected in the criminal complaints. Majority of the complaints are filed either on their advice or with their concurrence. The learned members of the Bar who belong to a noble profession must maintain its noble traditions and should treat every complaint under section 498A as a basic human problem and must make serious endeavour to help the parties in arriving at an amicable resolution of that human problem. They must discharge their duties to the best of their abilities to ensure that social fiber, peace and tranquility of the society remains intact. The members of the Bar should also ensure that one complaint should not lead to multiple cases. 34. Unfortunately, at the time of filing of the complaint the implications and consequences are not properly visualized by the complainant that such complaint can lead to insurmountable harassment, agony and pain to the complainant, accused and his close relations. 35. The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a herculean task in majority of these complaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband's close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection. 36. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband's relations had to remain in jail even for a few days, it would ruin the chances of amicable settlement altogether. The process of suffering is extremely long and painful.” 16. In Geeta Mehrotra & Anr. Vs. State of UP & Anr; (2012) 10 SCC 741, it was “21. It would be relevant at this stage to take note of an apt observation of this Court recorded in the matter of G.V. Rao vs. L.H.V. Prasad & Ors. reported in (2000) 3 SCC 693 wherein also in a matrimonial dispute, this Court had held that the High Court should have quashed the complaint arising out of a matrimonial dispute wherein all family members had been roped into the matrimonial litigation which was quashed and set aside. Their Lordships observed therein with which we “there has been an outburst of matrimonial dispute in recent times. Marriage is a sacred ceremony, main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate the disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their “young” days in chasing their cases in different courts.” The view taken by the judges in this matter was that the courts would not encourage such disputes.” 17. Recently, in K. Subba Rao v. The State of Telangana, (2018) 14 SCC 452 it was “6. The Courts should be careful in proceeding against the distant relatives in crimes pertaining to matrimonial disputes and dowry deaths. The relatives of the husband should not be roped in on the basis of omnibus allegations unless specific instances of their involvement in the crime are made out.” 18. The above-mentioned decisions clearly demonstrate that this court has at numerous instances expressed concern over the misuse of section 498A IPC and the increased tendency of implicating relatives of the husband in matrimonial disputes, without analysing the long term ramifications of a trial on the complainant as well as the accused. It is further manifest from the said judgments that false implication by way of general omnibus allegations made in the course of matrimonial dispute, if left unchecked would result in misuse of the process of law. Therefore, this court by way of its judgments has warned the courts from proceeding against the relatives and in-laws of the husband when no prima facie case is made out against them. 19. Coming to the facts of this case, upon a perusal of the contents of the FIR dated 01.04.19, it is revealed that general allegations are levelled against the Appellants. The complainant alleged that ‘all accused harassed her mentally and threatened her of terminating her pregnancy’. Furthermore, no specific and distinct allegations have been made against either of the Appellants herein, i.e., none of the Appellants have been attributed any specific role in furtherance of the general allegations made against them. This simply leads to a situation wherein one fails to ascertain the role played by each accused in furtherance of the offence. The allegations are therefore general and omnibus and can at best be said to have been made out on account of small skirmishes. Insofar as husband is concerned, since he has not appealed against the order of the High court, we have not examined the veracity of allegations made against him. However, as far as the Appellants are concerned, the allegations made against them being general and omnibus, do not warrant prosecution. 20. Furthermore, regarding similar allegations of harassment and demand for car as dowry made in a previous FIR. Respondent No. 1 i.e., the State of Bihar, contends that the present FIR pertained to offences committed in the year 2019, after assurance was given by the husband Md. Ikram before the Ld. Principal Judge Purnea, to not harass the Respondent wife herein for dowry, and treat her properly. However, despite the assurances, all accused continued their demands and harassment. It is thereby contended that the acts constitute a fresh cause of action and therefore the FIR in question herein dated 01.04.19, is distinct and independent, and cannot be termed as a repetition of an earlier FIR dated 21. Here it must be borne in mind that although the two FIRs may constitute two independent instances, based on separate transactions, the present complaint fails to establish specific allegations against the in-laws of the Respondent wife. Allowing prosecution in the absence of clear allegations against the in-laws Appellants would simply result in an abuse of the process of law. 22. Therefore, upon consideration of the relevant circumstances and in the absence of any specific role attributed to the accused appellants, it would be unjust if the Appellants are forced to go through the tribulations of a trial, i.e., general and omnibus allegations cannot manifest in a situation where the relatives of the complainant’s husband are forced to undergo trial. It has been highlighted by this court in varied instances, that a criminal trial leading to an eventual acquittal also inflicts severe scars upon the accused, and such an exercise must therefore be discouraged. 23. In view of the above facts and discussions, the impugned order dated 13.11.2019 passed by the High Court of Patna is set aside. The impugned F.I.R. No. 248 of 2019 against the Appellants under Sections 341, 323, 379, 354, 498A read with Section 34 IPC stands quashed. 24. As a result, appeal stands allowed.
The Supreme Court stated that charging a husband's relatives with a crime based on vague and general accusations is an unfair use of the legal system. The court also worried about the growing trend of using laws like Section 498A of the Indian Penal Code (IPC) as tools to get even with a husband and his family. The judges, S. Abdul Nazeer and Krishna Murari, pointed out that even if a person is found innocent, going through a criminal trial can deeply hurt them. Because of this, such trials should be avoided. Vague and general accusations alone should not force the husband's relatives to go through a trial, the judges added. In this particular case, the husband and his relatives asked the Patna High Court to cancel a police report (FIR) that the wife had filed. When the High Court rejected their request, the relatives (the in-laws) took their case to the Supreme Court. They argued that the police report was filed purely out of revenge and just to annoy them. The wife, on the other hand, argued that her accusations in the report were serious. She claimed she had been physically and mentally abused many times because of demands for dowry (money or gifts given by the bride's family to the groom's family). The main question the Supreme Court considered was whether the accusations against the in-laws were too vague and general, and if they should therefore be thrown out. To begin, the judges commented on the wrong use of Section 498A of the IPC. They said that this section was added to the law to prevent a woman from being abused by her husband and his family, by allowing the government to act quickly. However, they also noted that in recent times, legal fights related to marriage in the country have greatly increased. There is more unhappiness and conflict around marriage now than ever before. This has led to a growing habit of using laws like 498A IPC as tools to get even with a husband and his relatives. Referring to comments made in earlier court decisions, the court explained that these past rulings clearly show it has often worried about Section 498A IPC being used wrongly. The court is concerned about the growing habit of including the husband's relatives in marriage disputes without thinking about the long-term effects of a trial on both the person complaining and the person accused. These earlier judgments also make it clear that if false accusations, based on vague and general claims in a marriage dispute, are not stopped, it will lead to the legal system being used unfairly. So, the Supreme Court, in its previous rulings, has told other courts not to pursue cases against the husband's relatives and in-laws if there is no strong initial proof against them. After carefully reading the police report, the court noted that the wife claimed "all accused bothered her mentally and threatened her to end her pregnancy." However, no clear and separate accusations were made against the in-laws who were accused. The court therefore stated: "This simply means it's impossible to figure out what each accused person did to help commit the crime. The accusations are thus vague and general, and at most, they might be based on small arguments. As for the husband, since he did not challenge the High Court's decision, we did not check if the claims against him were true. But for the relatives who appealed, the accusations against them are vague and general, so they should not face criminal charges." So, while letting the appeal succeed and cancelling the criminal cases against the relatives who appealed, the judges said: After considering all the facts and because no specific actions were linked to the accused relatives who appealed, it would be unfair for them to suffer through a trial. In other words, vague and general accusations should not lead to a situation where the husband's relatives are forced into a trial. This court has often pointed out that even if someone is found innocent, going through a criminal trial can cause deep harm to them, and such an action should therefore be stopped.
2. This appeal is directed against the judgment and order dated 13.11.2019 passed by the High Court of Patna in Criminal Writ Petition No. 1492 of 2019, filed by the Appellants under Section 482 of the Code of Criminal Procedure (hereinafter referred to as ‘CrPC’) challenging the FIR No. 248/2019 dated 01.04.2019 implicating the Appellants for offences under Sections 341, 323, 379, 354, 498A read with Section 34 of the Indian Penal Code (hereinafter referred to as ‘IPC’). The High Court vide order impugned herein dismissed the same. 3. The Complainant (Respondent No. 5 herein) Tarannum Akhtar @ Soni, was married to Md. Ikram on 18.09.17. The appellants herein are the in-laws of Respondent No. 5. On 11.12.17, the said Respondent initially instituted a criminal complaint against her husband and the appellants before the Court of Chief Judicial Magistrate, Purnea alleging demand for dowry and harassment. Thereafter, when the file was put up before the Sub Divisional Judicial Magistrate Court, Purnea, for passing order at the stage of issuance of summon, the Ld. Magistrate concluded that upon perusal of material evidence no prima-facie case was made against the in-laws and that the allegations levelled against them were not specific in nature. The said court, however, took cognizance for the offence under section 498A, 323 IPC against the husband Md. Ikram, and issued summons. This dispute was eventually resolved and Respondent No. 5 herein came back to the matrimonial home. 4. Subsequently, on 01.04.19, Respondent No. 5 herein, gave another written complaint for registration of FIR under sections 341, 323, 379, 354, 498A read with Section 34 IPC against her husband Md. Ikram and the appellants herein. The complaint inter-alia alleged that all the accused were pressurizing the Respondent wife herein to purchase a car as dowry, and threatened to forcibly terminate her pregnancy if the demands were not met. 5. Aggrieved, the Husband and appellant herein filed a criminal writ petition before the Patna High Court, for quashing of the said FIR dated 01.04.19, which was dismissed vide impugned judgment. The High Court observed that the averments made in the FIR prima-facie disclosed commission of an offence and therefore the matter was required to be investigated by the police. The Appellants herein, being the niece (Respondent No. 1), Mother in-law (Respondent No. 2), Sister in-law (Respondent No. 3), and brother in law (Respondent No. 4) have thereby approached this court by way of the present Special Leave Petition. 6. The counsel for the Appellants herein contends, that the Police Officer was duty bound to conduct a preliminary inquiry before registering the FIR as this instant case falls within the categories of cases on which a preliminary enquiry may be made, as mandated by this court in Lalita Kumari Vs. Government of U.P. & Ors; 7. It is also submitted that previously in the year 2017, the Respondent wife had instituted a criminal complaint on similar allegations, whereby the Ld. Judicial Magistrate after considering the evidence issued summons only against the husband, and found that the allegations made against the appellants herein were omnibus in nature. Further, it is submitted that the FIR in question has been made with a revengeful intent, merely to harass the Appellant in-laws herein, and should be dealt with accordingly. Reliance is placed on Social Action Forum for Manav Adhikar & Anr. Vs. Union of India, Ministry of Law And Justice & Ors.2, “4. Regarding the constitutionality of Section 498-A IPC, in Sushil Kumar Sharma v. "Provision of S. 498A of Penal Code is not unconstitutional and ultra vires. Mere possibility of abuse of a provision of law does not per se invalidate a legislation. Hence plea that S. 498A has no legal or constitutional foundation is not tenable. The object of the provisions is prevention of the dowry menace. But many instances have come to light where the complaints are not bona fide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreck personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations 2. (2018) 10 SCC 443 can be appropriately dealt with. Till then the Courts have to take care of the situation within the existing frame-work.” 8. Respondent No. 1 herein i.e., the State of Bihar, contends that the present FIR pertains to offences committed in the year 2019, after assurance was given by the husband Md. Ikram before the Ld. Principal Judge Purnea, to not harass the Respondent wife for dowry, and treat her properly. However, the husband and appellants, despite the assurances, have continued their demand for dowry and threatened with forcefully terminating the Respondent wife’s pregnancy. These acts constitute a fresh cause of action and therefore the FIR in question herein dated 01.04.19, is distinct and independent, and cannot be termed as a repetition of an earlier FIR dated 11.12.17. Moreover, an investigation was carried out pursuant to the FIR and the case has been found true against all accused persons, therefore Lalita Kumari (Supra) will not apply in the present case. 9. Respondent No. 5 contends that of the total seven accused, the FIR in question was challenged by only five accused including her husband. It is argued that the impugned order is evidently accepted by the accused husband Md. Ikram @Sikandar as he has not challenged the impugned High Court judgment. Further, as far as involvement of the four accused Appellant in-laws is concerned, it is not only reflected from the averments made in the FIR, but also corroborated from the oral and documentary evidence collected by the investigating officer during investigation, culminating into filing of charge-sheet against all seven accused including the four Appellants herein. The allegations thus made in the FIR are sufficient to make out a prima facie case, and non-mentioning of pendency of Complaint case of year 2017, at the time of filing the complaint 01.04.19 is not fatal for the case of the prosecution. 10. It is further submitted that the allegations made in the FIR are serious in nature and the Respondent wife has been repeatedly tortured physically and mentally in order to fulfil the demand for dowry. Further, even if the contentions made by the Respondent No. 5 herein are disputed, by the Appellant in-laws, their veracity can be tested in trial before the Trial Court. It is further contended that this court has also taken a consistent view with regard to exercise of power under S. 482 Cr.P.C., in Rajesh Bajaj Vs. State of NCT of Delhi & Ors; (1999) 3 SCC 259, wherein it has been clearly held that even if a prima facie case is made out disclosing the ingredients of an offence, Court should not quash the complaint. Therefore, the impugned order can in no way be termed as perverse, cryptic or erroneous and therefore warrant no interference by this Hon’ble Court. 11. Having perused the relevant facts and contentions made by the Appellants and Respondents, in our considered opinion, the foremost issue which requires determination in the instant case is whether allegations made against the in-laws Appellants are in the nature of general omnibus allegations and therefore liable to 12. Before we delve into greater detail on the nature and content of allegations made, it becomes pertinent to mention that incorporation of section 498A of IPC was aimed at preventing cruelty committed upon a woman by her husband and her in-laws, by facilitating rapid state intervention. However, it is equally true, that in recent times, matrimonial litigation in the country has also increased significantly and there is a greater disaffection and friction surrounding the institution of marriage, now, more than ever. This has resulted in an increased tendency to employ provisions such as 498A IPC as instruments to settle personal scores against the husband and his relatives. 13. This Court in its judgment in Rajesh Sharma and Ors. Vs. State of U.P. & Anr; “14. Section 498-A was inserted in the statute with the laudable object of punishing cruelty at the hands of husband or his relatives against a wife particularly when such cruelty had potential to result in suicide or murder of a woman as mentioned in the statement of Objects and Reasons of the Act 46 of 1983. The expression 'cruelty' in Section 498A covers conduct which may drive the woman to commit suicide or cause grave injury (mental or physical) or danger to life or harassment with a view to coerce her to meet unlawful demand. It is a matter of serious concern that large number of cases continue to be filed under already referred to some of the statistics from the Crime Records Bureau. This Court had earlier noticed the fact that most of such complaints are filed in the heat of the moment over trivial issues. Many of such complaints are not bona fide. At the time of filing of the complaint, implications and consequences are not visualized. At times such complaints lead to uncalled for harassment not only to the accused but also to the complainant. Uncalled for arrest may ruin the chances of settlement.” 14. Previously, in the landmark judgment of this court in Arnesh Kumar Vs. State “4. There is a phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-A IPC is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed- ridden grandfathers and grand-mothers of the husbands, their sisters living abroad for decades are 15. Further in Preeti Gupta & Anr. Vs. State of Jharkhand & Anr; (2010) 7 SCC “32. It is a matter of common experience that most of these complaints under section 498A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious concern. 33. The learned members of the Bar have enormous social responsibility and obligation to ensure that the social fiber of family life is not ruined or demolished. They must ensure that exaggerated versions of small incidents should not be reflected in the criminal complaints. Majority of the complaints are filed either on their advice or with their concurrence. The learned members of the Bar who belong to a noble profession must maintain its noble traditions and should treat every complaint under section 498A as a basic human problem and must make serious endeavour to help the parties in arriving at an amicable resolution of that human problem. They must discharge their duties to the best of their abilities to ensure that social fiber, peace and tranquility of the society remains intact. The members of the Bar should also ensure that one complaint should not lead to multiple cases. 34. Unfortunately, at the time of filing of the complaint the implications and consequences are not properly visualized by the complainant that such complaint can lead to insurmountable harassment, agony and pain to the complainant, accused and his close relations. 35. The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a herculean task in majority of these complaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband's close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection. 36. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband's relations had to remain in jail even for a few days, it would ruin the chances of amicable settlement altogether. The process of suffering is extremely long and painful.” 16. In Geeta Mehrotra & Anr. Vs. State of UP & Anr; (2012) 10 SCC 741, it was “21. It would be relevant at this stage to take note of an apt observation of this Court recorded in the matter of G.V. Rao vs. L.H.V. Prasad & Ors. reported in (2000) 3 SCC 693 wherein also in a matrimonial dispute, this Court had held that the High Court should have quashed the complaint arising out of a matrimonial dispute wherein all family members had been roped into the matrimonial litigation which was quashed and set aside. Their Lordships observed therein with which we “there has been an outburst of matrimonial dispute in recent times. Marriage is a sacred ceremony, main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate the disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their “young” days in chasing their cases in different courts.” The view taken by the judges in this matter was that the courts would not encourage such disputes.” 17. Recently, in K. Subba Rao v. The State of Telangana, (2018) 14 SCC 452 it was “6. The Courts should be careful in proceeding against the distant relatives in crimes pertaining to matrimonial disputes and dowry deaths. The relatives of the husband should not be roped in on the basis of omnibus allegations unless specific instances of their involvement in the crime are made out.” 18. The above-mentioned decisions clearly demonstrate that this court has at numerous instances expressed concern over the misuse of section 498A IPC and the increased tendency of implicating relatives of the husband in matrimonial disputes, without analysing the long term ramifications of a trial on the complainant as well as the accused. It is further manifest from the said judgments that false implication by way of general omnibus allegations made in the course of matrimonial dispute, if left unchecked would result in misuse of the process of law. Therefore, this court by way of its judgments has warned the courts from proceeding against the relatives and in-laws of the husband when no prima facie case is made out against them. 19. Coming to the facts of this case, upon a perusal of the contents of the FIR dated 01.04.19, it is revealed that general allegations are levelled against the Appellants. The complainant alleged that ‘all accused harassed her mentally and threatened her of terminating her pregnancy’. Furthermore, no specific and distinct allegations have been made against either of the Appellants herein, i.e., none of the Appellants have been attributed any specific role in furtherance of the general allegations made against them. This simply leads to a situation wherein one fails to ascertain the role played by each accused in furtherance of the offence. The allegations are therefore general and omnibus and can at best be said to have been made out on account of small skirmishes. Insofar as husband is concerned, since he has not appealed against the order of the High court, we have not examined the veracity of allegations made against him. However, as far as the Appellants are concerned, the allegations made against them being general and omnibus, do not warrant prosecution. 20. Furthermore, regarding similar allegations of harassment and demand for car as dowry made in a previous FIR. Respondent No. 1 i.e., the State of Bihar, contends that the present FIR pertained to offences committed in the year 2019, after assurance was given by the husband Md. Ikram before the Ld. Principal Judge Purnea, to not harass the Respondent wife herein for dowry, and treat her properly. However, despite the assurances, all accused continued their demands and harassment. It is thereby contended that the acts constitute a fresh cause of action and therefore the FIR in question herein dated 01.04.19, is distinct and independent, and cannot be termed as a repetition of an earlier FIR dated 21. Here it must be borne in mind that although the two FIRs may constitute two independent instances, based on separate transactions, the present complaint fails to establish specific allegations against the in-laws of the Respondent wife. Allowing prosecution in the absence of clear allegations against the in-laws Appellants would simply result in an abuse of the process of law. 22. Therefore, upon consideration of the relevant circumstances and in the absence of any specific role attributed to the accused appellants, it would be unjust if the Appellants are forced to go through the tribulations of a trial, i.e., general and omnibus allegations cannot manifest in a situation where the relatives of the complainant’s husband are forced to undergo trial. It has been highlighted by this court in varied instances, that a criminal trial leading to an eventual acquittal also inflicts severe scars upon the accused, and such an exercise must therefore be discouraged. 23. In view of the above facts and discussions, the impugned order dated 13.11.2019 passed by the High Court of Patna is set aside. The impugned F.I.R. No. 248 of 2019 against the Appellants under Sections 341, 323, 379, 354, 498A read with Section 34 IPC stands quashed. 24. As a result, appeal stands allowed.
The Supreme Court stated that charging a husband's relatives with a crime based on vague and general accusations is an unfair use of the legal system. The court also worried about the growing trend of using laws like Section 498A of the Indian Penal Code (IPC) as tools to get even with a husband and his family. The judges, S. Abdul Nazeer and Krishna Murari, pointed out that even if a person is found innocent, going through a criminal trial can deeply hurt them. Because of this, such trials should be avoided. Vague and general accusations alone should not force the husband's relatives to go through a trial, the judges added. In this particular case, the husband and his relatives asked the Patna High Court to cancel a police report (FIR) that the wife had filed. When the High Court rejected their request, the relatives (the in-laws) took their case to the Supreme Court. They argued that the police report was filed purely out of revenge and just to annoy them. The wife, on the other hand, argued that her accusations in the report were serious. She claimed she had been physically and mentally abused many times because of demands for dowry (money or gifts given by the bride's family to the groom's family). The main question the Supreme Court considered was whether the accusations against the in-laws were too vague and general, and if they should therefore be thrown out. To begin, the judges commented on the wrong use of Section 498A of the IPC. They said that this section was added to the law to prevent a woman from being abused by her husband and his family, by allowing the government to act quickly. However, they also noted that in recent times, legal fights related to marriage in the country have greatly increased. There is more unhappiness and conflict around marriage now than ever before. This has led to a growing habit of using laws like 498A IPC as tools to get even with a husband and his relatives. Referring to comments made in earlier court decisions, the court explained that these past rulings clearly show it has often worried about Section 498A IPC being used wrongly. The court is concerned about the growing habit of including the husband's relatives in marriage disputes without thinking about the long-term effects of a trial on both the person complaining and the person accused. These earlier judgments also make it clear that if false accusations, based on vague and general claims in a marriage dispute, are not stopped, it will lead to the legal system being used unfairly. So, the Supreme Court, in its previous rulings, has told other courts not to pursue cases against the husband's relatives and in-laws if there is no strong initial proof against them. After carefully reading the police report, the court noted that the wife claimed "all accused bothered her mentally and threatened her to end her pregnancy." However, no clear and separate accusations were made against the in-laws who were accused. The court therefore stated: "This simply means it's impossible to figure out what each accused person did to help commit the crime. The accusations are thus vague and general, and at most, they might be based on small arguments. As for the husband, since he did not challenge the High Court's decision, we did not check if the claims against him were true. But for the relatives who appealed, the accusations against them are vague and general, so they should not face criminal charges." So, while letting the appeal succeed and cancelling the criminal cases against the relatives who appealed, the judges said: After considering all the facts and because no specific actions were linked to the accused relatives who appealed, it would be unfair for them to suffer through a trial. In other words, vague and general accusations should not lead to a situation where the husband's relatives are forced into a trial. This court has often pointed out that even if someone is found innocent, going through a criminal trial can cause deep harm to them, and such an action should therefore be stopped.
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Respondent :- State Of U.P. Thru. Prin. Secy. Medical Health And Ors. Counsel for Petitioner :- Shreya Chaudhary,Nishi Chaudhary,Rinku Counsel for Respondent :- C.S.C. 1. Heard Ms. Shreya Chaudhary, learned counsel for petitioner and learned Standing Counsel for the State. 2. Petitioner, by the present writ petition has challenged the order of transfer dated 12.07.2021 as well as order dated 12.08.2021 whereby representation of petitioner is rejected. 3. Learned counsel for petitioner submits that petitioner, who is Class-IV employee has been transferred from Lucknow to Kanpur by transfer order dated 12.07.2021 on administrative ground. The said order does not give any reason whatsoever for transferring the petitioner. Petitioner has approached this Court on ground that Class-IV employee cannot be transferred so far away. This Court directed the representation of petitioner to be considered and decided on merits. While deciding the representation, large number of allegations were leveled against the petitioner which includes that she remains on leave, she acts in whimsical manner which causes disturbances in the work, she is careless in attending insured persons/patients. Reference is made to certain letters written by some officers concerned. Learned counsel for petitioner submits that in the given circumstances the transfer amounts to transfer on punishment which could not be made except following due process. Learned counsel for petitioner further submits that even presuming Class-IV employee is to be transferred on punishment, the same cannot be to a far away place and has to be within the same district. Further submission is that the impugned order is also passed without providing any opportunity of hearing to the petitioner. 4. Learned Standing Counsel submits that looking into the conduct of petitioner, the transfer order is rightly passed. 5. In the given facts and circumstances of the case where allegations are being made against petitioner in rejecting her representation against the impugned transfer order, the transfer order becomes punitive in nature. No punishment can be awarded to the petitioner without giving any opportunity of hearing. Therefore, the impugned order cannot stand. It is further to be noted that no Class-IV employee should normally be transferred out of district. The department itself follows the said policy as is reflected in the transfer order dated 12.07.2021 itself, by which five Class-IV employees are transferred, three of them on personal request out of district, the fourth in public interest within the district and fifth, petitioner, is transferred out of district on administrative grounds. When the department is making out of district transfer only on request and otherwise accommodating persons within the district, there was no reason to transfer the petitioner out of district. 6. In view therefore, the impugned orders dated 12.07.2021 and 12.08.2021 cannot stand and are set aside. 7. The writ petition is allowed.
On Monday, the Allahabad High Court stated that low-level government workers, called Class-IV employees, should not usually be transferred to a different district. Justice Vivek Chaudhary made this comment. He was cancelling a transfer order for a Class-IV worker because it seemed to be a punishment. Ms. Maya, a Class-IV employee, was transferred by the State Medical Health Department from Lucknow to Kanpur. This transfer happened on July 12, 2021. The department said it was for general management reasons, but the officer who ordered it gave no specific explanation. So, Ms. Maya went to the Allahabad High Court, arguing that Class-IV employees should not be transferred so far away. After hearing her request, the Court first ordered that her formal complaint against the transfer be reviewed fairly. However, when her complaint was reviewed, many accusations were made against her. These included claims that she often took leave and acted unpredictably, causing problems at work. Her lawyer told the Court that even if a Class-IV employee is transferred as a punishment, it should not be to a distant place. It should be within the same district. Her lawyer also pointed out that Ms. Maya was not given a chance to speak or defend herself before the transfer order was made. Because of these events, the Court noticed that accusations were used to reject Ms. Maya's complaint about the transfer. This showed that the transfer order was actually a punishment. The Court stressed that no one can be punished without first being given a chance to explain their side. Therefore, the Court decided that the challenged transfer order could not stand. The Court also pointed out that Class-IV employees should normally not be transferred outside their district. The department itself usually follows this rule. For example, the same transfer order from July 12, 2021, involved five Class-IV employees. Three were moved out of the district because they asked for it. A fourth was moved within the district for public good. But Ms. Maya, the fifth person, was transferred out of the district for general management reasons. The Court noted that if the department only transfers people out of the district when they ask, and otherwise keeps them within their district, there was no good reason to transfer Ms. Maya away. With this, the Court cancelled the disputed transfer order.
Respondent :- State Of U.P. Thru. Prin. Secy. Medical Health And Ors. Counsel for Petitioner :- Shreya Chaudhary,Nishi Chaudhary,Rinku Counsel for Respondent :- C.S.C. 1. Heard Ms. Shreya Chaudhary, learned counsel for petitioner and learned Standing Counsel for the State. 2. Petitioner, by the present writ petition has challenged the order of transfer dated 12.07.2021 as well as order dated 12.08.2021 whereby representation of petitioner is rejected. 3. Learned counsel for petitioner submits that petitioner, who is Class-IV employee has been transferred from Lucknow to Kanpur by transfer order dated 12.07.2021 on administrative ground. The said order does not give any reason whatsoever for transferring the petitioner. Petitioner has approached this Court on ground that Class-IV employee cannot be transferred so far away. This Court directed the representation of petitioner to be considered and decided on merits. While deciding the representation, large number of allegations were leveled against the petitioner which includes that she remains on leave, she acts in whimsical manner which causes disturbances in the work, she is careless in attending insured persons/patients. Reference is made to certain letters written by some officers concerned. Learned counsel for petitioner submits that in the given circumstances the transfer amounts to transfer on punishment which could not be made except following due process. Learned counsel for petitioner further submits that even presuming Class-IV employee is to be transferred on punishment, the same cannot be to a far away place and has to be within the same district. Further submission is that the impugned order is also passed without providing any opportunity of hearing to the petitioner. 4. Learned Standing Counsel submits that looking into the conduct of petitioner, the transfer order is rightly passed. 5. In the given facts and circumstances of the case where allegations are being made against petitioner in rejecting her representation against the impugned transfer order, the transfer order becomes punitive in nature. No punishment can be awarded to the petitioner without giving any opportunity of hearing. Therefore, the impugned order cannot stand. It is further to be noted that no Class-IV employee should normally be transferred out of district. The department itself follows the said policy as is reflected in the transfer order dated 12.07.2021 itself, by which five Class-IV employees are transferred, three of them on personal request out of district, the fourth in public interest within the district and fifth, petitioner, is transferred out of district on administrative grounds. When the department is making out of district transfer only on request and otherwise accommodating persons within the district, there was no reason to transfer the petitioner out of district. 6. In view therefore, the impugned orders dated 12.07.2021 and 12.08.2021 cannot stand and are set aside. 7. The writ petition is allowed.
On Monday, the Allahabad High Court stated that low-level government workers, called Class-IV employees, should not usually be transferred to a different district. Justice Vivek Chaudhary made this comment. He was cancelling a transfer order for a Class-IV worker because it seemed to be a punishment. Ms. Maya, a Class-IV employee, was transferred by the State Medical Health Department from Lucknow to Kanpur. This transfer happened on July 12, 2021. The department said it was for general management reasons, but the officer who ordered it gave no specific explanation. So, Ms. Maya went to the Allahabad High Court, arguing that Class-IV employees should not be transferred so far away. After hearing her request, the Court first ordered that her formal complaint against the transfer be reviewed fairly. However, when her complaint was reviewed, many accusations were made against her. These included claims that she often took leave and acted unpredictably, causing problems at work. Her lawyer told the Court that even if a Class-IV employee is transferred as a punishment, it should not be to a distant place. It should be within the same district. Her lawyer also pointed out that Ms. Maya was not given a chance to speak or defend herself before the transfer order was made. Because of these events, the Court noticed that accusations were used to reject Ms. Maya's complaint about the transfer. This showed that the transfer order was actually a punishment. The Court stressed that no one can be punished without first being given a chance to explain their side. Therefore, the Court decided that the challenged transfer order could not stand. The Court also pointed out that Class-IV employees should normally not be transferred outside their district. The department itself usually follows this rule. For example, the same transfer order from July 12, 2021, involved five Class-IV employees. Three were moved out of the district because they asked for it. A fourth was moved within the district for public good. But Ms. Maya, the fifth person, was transferred out of the district for general management reasons. The Court noted that if the department only transfers people out of the district when they ask, and otherwise keeps them within their district, there was no good reason to transfer Ms. Maya away. With this, the Court cancelled the disputed transfer order.
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The petitioners are before this Court calling in question entire proceedings in Criminal Miscellaneous No.01 of 2018 which later become C.C.No.39 of 2018 registered for an offence punishable under Section 27(d) of the Drugs and Cosmetics Act, 1940 (‘the Act’ for short). 2. Shorn of unnecessary details, facts in brief that are germane for consideration of the issue in the lis, are as follows: The 1st petitioner is M/s Emcure Pharmaceuticals Limited, a drug manufacturing company engaged in the manufacture and sale of drugs (hereinafter referred to as ‘the Company’ for short). Petitioner Nos.2 and 3 who are accused Nos.2 ad 3 are the Managing Director and Director respectively of the said Company. The petitioners are in C.C.No.39 of 2018. The facts that led to the registration of crime are that on 5-01-2012, the Drugs Inspector, Bangalore visits M/s Tulasi Pharma and takes a legal sample of the drug manufactured by the Company, prepares Form No.17, issues it to the proprietor of M/s Tulasi Pharma and sends the sample so collected for test/analysis under the acknowledgment of the proprietor as required under Section 23 of the Act. On 6.01.2012, the sealed portion of the drug reaches Government Analyst at the Drugs Testing Laboratory, Bengaluru. The procedure stipulated under the Act was followed for drawing up and sending the sample. 3. On 21-07-2012, the Drugs Inspector who had sent the sample for its test receives the report of the drug in terms of CRL.P No. 6919 of 2022 Form No.13 from the Government Analyst, Drugs Testing Laboratory, Bengaluru and the report was that “Not of Standard Quality” with respect to “Assay for Folic Acid”. On 24-07-2012, a notice was served upon M/s Tulasi Pharma under Section 18A and 18B of the Act along with original report. On the very day, the proprietor of M/s Tulasi Pharma gives a statement disclosing that it had purchased the said drug from the Company. It is here the Company comes into the picture. 4. On 30-07-2012, the Drugs Inspector served another copy of the test report on the Company in terms of Section 23(4)(iii) of the Act. The Company responds to the said notice. On 2-08-2012, the Drugs Inspector addresses a letter to the Managing Director of the Company, the 2nd petitioner herein seeking certain information with regard to the report which had observed that the drug manufactured by it was not of standard quality. This was replied to by the Company on 5-09-2012 denying the fact that the sample was "Not of standard quality" with respect of "Assay for Folic Acid". CRL.P No. 6919 of 2022 5. On 8.10.2013, the Drugs Inspector submitted details of investigation to the Drugs Controller seeking his permission/sanction to prosecute the Company and the other petitioners herein under the provisions of the Act. Four years and 2 months after submission of the said requisition seeking sanction, the Drugs Controller permits institution of prosecution against the petitioners in terms of his communication dated 8-12-2017. On receipt of the said sanction, the Drugs Inspector registers a private complaint invoking Section 200 of the Cr.P.C. against the petitioners alleging contravention of Section 18(a)(1) which is punishable under Section 27(d) of the Act. Along with the complaint, an application seeking condonation of delay under Section 473 of the Cr.P.C. read with Section 5 of the Limitation Act was also filed. On 20th March, 2018, the concerned Court i.e., the Special Court for Economic Offences condoned the delay of 4 years and 10 months and takes cognizance of the offence. 6. Being aggrieved by the order taking cognizance and issuing of summons to the petitioners, the petitioners knocked CRL.P No. 6919 of 2022 the doors of the Sessions Court in Criminal Revision Petition No.323 of 2018 on both i.e., against allowing the application seeking condonation of delay and taking of cognizance. The revision was partly allowed by accepting the application for condonation of delay and rejecting the order taking cognizance with a further direction to the trial Court to proceed in accordance with law. It is this order of the learned Sessions Judge and the order which condoned the delay are called in question in the present proceedings. In effect, the entire proceedings in C.C.No.39 of 2018 are called in question. 7. Heard Sri Pramod Nair, learned Senior counsel appearing for the petitioners and Smt. K.P.Yashodha, learned High Court Government Pleader for the respondent. 8. The learned senior counsel Sri Pramod Nair would contend that the fact of condoning delay or taking cognizance or even the order of the learned Sessions Judge permitting trial are all acts without jurisdiction, as the limitation in terms of Section 468 Cr.P.C. was long over in the case at hand. The offence alleged is under Section 27(d) of the Act which CRL.P No. 6919 of 2022 mandates punishment for a maximum term of imprisonment of two years, and the limitation would run from the date on which the Drugs Inspector receives the sample from the Laboratory, which was on 21-07-2012. The complaint being registered on 2-01-2018 is close to 5 years and 7 months after such receipt and would, therefore, contend that the entire proceedings are vitiated on the ground of it being without jurisdiction. 9. On the other hand, the learned High Court Government Pleader would seek to justify the action of registering the complaint after 5 years and 7 months from 21.07.2012 on the ground that the Drugs Inspector was awaiting sanction from the hands of the Drugs Controller as obtaining under Section 33M of the Act and would submit that the issue stands covered by the judgments rendered by the Apex Court in the cases of UDAI SHANKAR AWASTHI v. STATE OF UTTAR PRADESH AND ANOTHER – Criminal Appeal No.61 of 2013 decided on 9-01-2013 and RAKESH KUMAR JAIN v. STATE CRL.P No. 6919 of 2022 10. Contra to the said submission, the learned senior counsel appearing for the petitioners takes this Court through the Act to contend that sanction/permission would become necessary only in certain circumstances as obtaining sanction under Section 33M of the Act is not necessary in every 11. I have given my anxious consideration to the submissions made by the respective learned counsel and perused the material on record. In furtherance whereof, the only issue that falls for my consideration is whether the impugned proceedings are hit by Section 468 of the Cr.P.C. 12. The afore-narrated facts are not in dispute. The link in the chain of events, narrated hereinbefore, are also not in dispute and are, therefore, not reiterated. To begin with, the receipt of report of sample from the Drugs Testing Laboratory would suffice. The sample was sent to the Laboratory by the Drugs Inspector on 5-01-2012. 6 months thereafter i.e., on 21.07.2012 the report of the Laboratory is received at the hands of the Drugs Inspector terming it to be “not of CRL.P No. 6919 of 2022 standard quality” for “Assay for Folic Acid”. On receipt of the report, the complaint ought to have been registered by the Drugs Inspector, but he chose to seek sanction/permission for registration of crime that too after about a year of receipt of sample i.e., on 8-10-2013. The authority which was competent to sanction i.e., the Drugs Controller accorded such sanction/permission on 8-12-2017. By then it was 5 years and 5 months after receipt of the sample from the hands of the Laboratory. The Drugs Inspector registers the crime invoking Section 200 of Cr.P.C. on 2-01-2018 which is 5 years and 6 months after receipt of the sample for offence punishable under Section 27(d) of the Act. 13. Section 27 of the Act reads as follows: “27. Penalty for manufacture, sale, etc., of drugs in contravention of this Chapter.—Whoever, himself or by any other person on his behalf, manufactures for sale or for distribution, or sells, or stocks or exhibits or offers for sale or (a) any drug deemed to be adulterated under Section 17-A or spurious under Section 17-B and which when used by any person for or in the diagnosis, treatment, mitigation, or prevention of any disease or disorder is likely to cause his death or is likely to cause such harm on his body as would amount to grievous hurt within the meaning of Section 320 of the Indian Penal Code (45 of 1860), solely on account of such drug being adulterated CRL.P No. 6919 of 2022 or spurious or not of standard quality, as the case may be, shall be punishable with imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine which shall not be less than ten lakh rupees or three times value of the drugs confiscated, whichever is Provided that the fine imposed on and released from, the person convicted under this clause shall be paid, by way of compensation, to the person who had used the adulterated or spurious drugs referred to in this clause: Provided further that where the use of the adulterated or spurious drugs referred to in this clause has caused the death of a person who used such drugs, the fine imposed on and realised from, the person convicted under this clause, shall be paid to the relative of the person who had died due to the use of the adulterated or spurious drugs referred to in this clause. Explanation.—For the purposes of the second proviso, the expression “relative” means— (i) spouse of the deceased person; or (ii) a minor legitimate son, and unmarried legitimate daughter and a widowed mother; or (iv) if wholly dependent on the earnings of the deceased person at the time of his death, a son or a daughter who has attained the age of eighteen (v) any person, if wholly or in part, dependent on the earnings of the deceased person at the time of his (a) the parent; or (b) a minor brother or an unmarried sister; or (c) a widowed daughter-in-law; or (e) a minor child of a pre-deceased son; or (f) a minor child of a pre-deceased daughter where no parent of the child is alive; or (g) the paternal grandparent if no parent of the CRL.P No. 6919 of 2022 (i) deemed to be adulterated under Section 17-A, but not being a drug referred to in clause (a), or (ii) without a valid licence as required under clause (c) of Section 18, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to five years and with fine which shall not be less than one lakh rupees or three times the value of the drugs confiscated, whichever is more: Provided that the Court may, for any adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of [less than three years and of fine of less than one lakh rupees; (c) any drug deemed to be spurious under Section 17-B, but not being a drug referred to in clause (a) shall be punishable with imprisonment for a term which shall not less than seven years but which may extend to imprisonment for life and with fine which shall not be (sic less than) three lakh rupees or three times the value of the drugs confiscated, whichever is more: Provided that the Court may, for any adequate and special reasons, to be recorded in the judgment, impose a sentence of imprisonment for a term of less than seven years but not less than three years and of fine of less than one lakh rupees; (d) any drug, other than a drug referred to in clause (a) or clause (b) or clause (c), in contravention of any other provision of this Chapter or any rule made thereunder, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to two years and with fine which shall not be less than twenty thousand rupees: Provided that the Court may for any adequate and special reasons to be recorded in the CRL.P No. 6919 of 2022 judgment impose a sentence of imprisonment for a term of less than one year.” The offence that is made punishable is under Section 27(d) of the Act. Section 27(d) of the Act mandates that contravention of any other provision of this chapter or any rule made there under shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to 2 years. Therefore, the maximum punishment that would become imposable upon one being proved guilty of offence under Section 27(d) of the Act would be for a period of two years. It is now germane to notice Section 468 of the Cr.P.C., it runs as “468. Bar to taking cognizance after lapse of the period of limitation.—(1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation. (2) The period of limitation shall be— (a) six months, if the offence is punishable with fine (b) one year, if the offence is punishable with imprisonment for a term not exceeding one (c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. (3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.” (emphasis supplied) Section 468 of the Cr.P.C. bars the concerned Court from taking cognizance after lapse of the period of limitation and the period of limitation is mandated to be one year if the offence is punishable with imprisonment for a term not exceeding one year and three years if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. Therefore, the case would fall within Section 468 of the Cr.P.C. In the teeth of the afore-quoted provisions of both the Act and the Cr.P.C. the facts are to be considered. The report of the Laboratory comes to the hands of the Drugs Inspector on 21-07-2012, the limitation according to Section 27(d) of the Act would expire on 20-07-2014. The complaint is registered on 2-01-2018, 3 years and 8 months after the period of limitation was over. Cognizance was taken by the learned Magistrate on 20-03-2018 by condoning the delay in registering CRL.P No. 6919 of 2022 the crime, notwithstanding the fact that such an order would run counter to Section 468 of the Cr.P.C. 14. The ground on which condonation of delay was sought was that that the Drugs Inspector who was to register the complaint was awaiting sanction/permission from the hands of the Drugs Controller for registration of the crime and it is in the process of seeking sanction/permission 5 years and 7 months had passed by and, therefore, the delay was condonable. While submitting justification for condonation of delay, the learned High Court Government Pleader seeks to take support of Section 33M of the Act. It therefore becomes germane to notice Section 33M of the Act. Section 33M of the Act forms a part of Chapter IV-A of the Act. The applicability under Chapter IV-A of the Act and Section 33M of the Act read CRL.P No. 6919 of 2022 33-B. Application of Chapter IV-A.—This Chapter shall apply only to 255[Ayurvedic, Siddha and Unani drugs]. “33-M. Cognizance of offences.—(1) No prosecution under this Chapter shall be instituted except by an Inspector with the previous sanction of the authority specified under sub-section (4) of Section 33- (2) No Court inferior to that of a Metropolitan Magistrate or of a Judicial Magistrate of the first class shall try an offence punishable under this Chapter.” Section 33B of the Act makes Chapter IV-A applicable to certain drugs which are Ayurvedic, Siddha or Unani. Section 33M of the Act deals with taking of cognizance of offences which mandates that no prosecution under this Chapter shall be instituted except by an Inspector with the previous sanction of the authority specified under sub-section (4) of Section 33G of the Act. Section 33M of the Act comes under Chapter-IVA. Chapter IVA exclusively deals with the provisions relating to Ayurvedic, Siddha and Unani drugs. Section 33M of the Act forms part of Chapter IVA which deals with the aforesaid drugs. Therefore, Section 33M of the Act cannot but be read to be for the purpose of those drugs enumerated in the said Chapter. CRL.P No. 6919 of 2022 Sanction under Section 33G of the Act for registration of the crime or cognizance by the concerned court under Section 33M of the Act would only be for enumerated drugs in Chapter IVA. Section 33B of the Act makes entire Chapter IVA to become applicable only to Ayurvedic, Siddha and Unani drugs. An unmistakable inference that would flow from a perusal of the provisions extracted hereinabove would be that for a prosecution to be initiated under Section 27(d) of the Act, sanction would be required only if the drugs would be either Ayurvedic, Siddha or Unani. Section 33M of the Act mandates so only if the drugs are those which come within the Chapter. 15. The drugs in the case at hand are not the ones which are either Ayurvedic, Siddha or Unani. They are allopathic drugs and therefore, Section 33M of the Act on the face of it, is inapplicable to the fact situation. The sheet anchor of the learned High Court Government Pleader to lend support to the enormous delay in registering the complaint taking recourse of Section 33M of the Act would thus tumble down. There was absolutely no necessity to await sanction/permission from the CRL.P No. 6919 of 2022 Drugs Controller to register the complaint as the legal sample of the drug that was drawn was not of either Ayurvedic, Siddha or Unani. If the Drugs Inspector has by taking recourse to a wrong provision of law sought sanction from the hands of the Drugs Controller to register prosecution, it cannot be said to be condonable as it was a question of jurisdiction. The statutory bar that kicks in terms of Section 468 of the Cr.P.C. could not have been condoned by both the Courts as it gets at the root of the matter. 16. It is not the date on which the Court takes cognizance of the offence, that would become applicable for the rigours of Section 468 of the Cr.P.C. to operate, but the date on which the crime comes to be registered. In the case at hand, the crime itself is registered after 5 years and 7 months of receipt of report of the sample from the hands of the Laboratory. Therefore, such delay which generates statutory bar could not have been condoned on the specious plea of the prosecution awaiting unnecessary sanction or permission on a misreading of the statute. Therefore, the entire proceedings right from registration of the crime are rendered unsustainable for they CRL.P No. 6919 of 2022 are all without jurisdiction, only in the teeth of Section 468 of 17. In so far as the judgments relied on by the learned High Court Government Pleader are concerned, they are all distinguishable on facts of those cases without much ado. The Apex Court in the case of Udai Shankar Awasthi (supra) has no doubt held that in exceptional circumstances, the Court can condone the delay. The Apex Court was not considering or interpreting the statutory provision akin to or even Section 468 Cr.P.C. The other judgment also follows suit. The issue in the case at hand is to be considered on the bedrock of the statutes which have not been interpreted by the Apex Court in the aforesaid judgments. Therefore, those judgments would lend no assistance to the learned High Court Government Pleader. 18. For the reasons rendered supra, it becomes necessary to direct the competent authority to register the crime in such cases, in quick succession and not resort to red tapism and let the alleged guilty go scot-free on the plea of CRL.P No. 6919 of 2022 limitation. The Authority should also necessarily peruse and understand the statute for registration of crimes in such matters, as delay will defeat the very object of penal action under the statute and it is always said that “procrastination is the thief of time” 19. For the aforesaid reasons, the following: I. The Criminal Petition is allowed. II. The order dated 31st March, 2022 passed by the Principal City Civil and Sessions Judge at Bangalore in Criminal Revision Petition No.323 of 2018 as also the order dated 20th March, 2018 passed by the Presiding Officer, Special Court for Economic Offices, Bangalore in Criminal Miscellaneous No.1 of 2018 stands quashed.
The Karnataka High Court has made it clear that official permission to file a lawsuit, as required by Section 33M of the Drugs & Cosmetics Act of 1940, applies only to Ayurvedic, Siddha, and Unani medicines. This permission is not needed when the case involves Western (Allopathic) drugs. Justice M Nagaprasanna, a single judge, made this statement while agreeing to a request from Emcure Pharmaceuticals and its two Directors. Their request was to cancel the complaint filed against them by a Drug Inspector under the Drugs and Cosmetics Act of 1940. The company and its directors questioned the Magistrate court's decision to accept their case and issue summons. They argued the alleged crime, under Section 27(d) of the Act, had a maximum penalty of two years in jail. The legal deadline for the complaint started on July 21, 2012. This was when the Drug Inspector received the lab report for the drug sample. However, the complaint was filed on January 2, 2018. This was nearly five years and seven months after the report was received. Because of this delay, the company claimed the whole case was invalid. They argued it went against Section 468 of the Criminal Procedure Code (CrPC). Section 468 of the CrPC stops a court from accepting a case after its legal deadline has passed. The deadline is one year if the crime carries a jail term of up to one year. It is three years if the crime carries a jail term of more than one year but up to three years. Findings: First, the court noted that since the lab report was given to the Drug Inspector on July 21, 2012, the deadline to file the complaint, according to Section 27(d) of the Act, should have ended on July 20, 2014. Therefore, the complaint filed on January 2, 2018, was three years and eight months after this deadline had passed. The Magistrate had accepted the case on March 20, 2018, by overlooking the delay in filing the crime. However, this decision went against the rules set by Section 468 of the CrPC. The court rejected the government lawyer's reason for excusing the delay, which was based on Section 33M of the Act. The judge explained that "Section 33M of the Act is part of Chapter-IVA. Chapter IVA only covers rules about Ayurvedic, Siddha, and Unani medicines. The drugs in this case are not Ayurvedic, Siddha, or Unani. They are Western (allopathic) drugs." The court ruled that the Inspector did not need to wait for permission from the Drugs Controller to file the complaint. This was because the drug sample taken was not Ayurvedic, Siddha, or Unani. If the Drug Inspector mistakenly used the wrong law to seek permission from the Drugs Controller for prosecution, that error cannot be excused. This is because it affects the court's power to hear the case. The legal block from Section 468 of the CrPC could not be overlooked by any court. It touches the very core of the matter. The responsible officials were advised not to get caught up in unnecessary official procedures and delays. When ending its decision, the court advised the responsible officials to file such criminal cases quickly. They should not use slow official processes or let accused people go free simply because a legal deadline was missed. Furthermore, the court observed, "The officials should also carefully read and understand the law for filing crimes in these situations. Delays will prevent the main goal of legal punishment from happening, and it is always said that 'putting things off wastes time.'"
The petitioners are before this Court calling in question entire proceedings in Criminal Miscellaneous No.01 of 2018 which later become C.C.No.39 of 2018 registered for an offence punishable under Section 27(d) of the Drugs and Cosmetics Act, 1940 (‘the Act’ for short). 2. Shorn of unnecessary details, facts in brief that are germane for consideration of the issue in the lis, are as follows: The 1st petitioner is M/s Emcure Pharmaceuticals Limited, a drug manufacturing company engaged in the manufacture and sale of drugs (hereinafter referred to as ‘the Company’ for short). Petitioner Nos.2 and 3 who are accused Nos.2 ad 3 are the Managing Director and Director respectively of the said Company. The petitioners are in C.C.No.39 of 2018. The facts that led to the registration of crime are that on 5-01-2012, the Drugs Inspector, Bangalore visits M/s Tulasi Pharma and takes a legal sample of the drug manufactured by the Company, prepares Form No.17, issues it to the proprietor of M/s Tulasi Pharma and sends the sample so collected for test/analysis under the acknowledgment of the proprietor as required under Section 23 of the Act. On 6.01.2012, the sealed portion of the drug reaches Government Analyst at the Drugs Testing Laboratory, Bengaluru. The procedure stipulated under the Act was followed for drawing up and sending the sample. 3. On 21-07-2012, the Drugs Inspector who had sent the sample for its test receives the report of the drug in terms of CRL.P No. 6919 of 2022 Form No.13 from the Government Analyst, Drugs Testing Laboratory, Bengaluru and the report was that “Not of Standard Quality” with respect to “Assay for Folic Acid”. On 24-07-2012, a notice was served upon M/s Tulasi Pharma under Section 18A and 18B of the Act along with original report. On the very day, the proprietor of M/s Tulasi Pharma gives a statement disclosing that it had purchased the said drug from the Company. It is here the Company comes into the picture. 4. On 30-07-2012, the Drugs Inspector served another copy of the test report on the Company in terms of Section 23(4)(iii) of the Act. The Company responds to the said notice. On 2-08-2012, the Drugs Inspector addresses a letter to the Managing Director of the Company, the 2nd petitioner herein seeking certain information with regard to the report which had observed that the drug manufactured by it was not of standard quality. This was replied to by the Company on 5-09-2012 denying the fact that the sample was "Not of standard quality" with respect of "Assay for Folic Acid". CRL.P No. 6919 of 2022 5. On 8.10.2013, the Drugs Inspector submitted details of investigation to the Drugs Controller seeking his permission/sanction to prosecute the Company and the other petitioners herein under the provisions of the Act. Four years and 2 months after submission of the said requisition seeking sanction, the Drugs Controller permits institution of prosecution against the petitioners in terms of his communication dated 8-12-2017. On receipt of the said sanction, the Drugs Inspector registers a private complaint invoking Section 200 of the Cr.P.C. against the petitioners alleging contravention of Section 18(a)(1) which is punishable under Section 27(d) of the Act. Along with the complaint, an application seeking condonation of delay under Section 473 of the Cr.P.C. read with Section 5 of the Limitation Act was also filed. On 20th March, 2018, the concerned Court i.e., the Special Court for Economic Offences condoned the delay of 4 years and 10 months and takes cognizance of the offence. 6. Being aggrieved by the order taking cognizance and issuing of summons to the petitioners, the petitioners knocked CRL.P No. 6919 of 2022 the doors of the Sessions Court in Criminal Revision Petition No.323 of 2018 on both i.e., against allowing the application seeking condonation of delay and taking of cognizance. The revision was partly allowed by accepting the application for condonation of delay and rejecting the order taking cognizance with a further direction to the trial Court to proceed in accordance with law. It is this order of the learned Sessions Judge and the order which condoned the delay are called in question in the present proceedings. In effect, the entire proceedings in C.C.No.39 of 2018 are called in question. 7. Heard Sri Pramod Nair, learned Senior counsel appearing for the petitioners and Smt. K.P.Yashodha, learned High Court Government Pleader for the respondent. 8. The learned senior counsel Sri Pramod Nair would contend that the fact of condoning delay or taking cognizance or even the order of the learned Sessions Judge permitting trial are all acts without jurisdiction, as the limitation in terms of Section 468 Cr.P.C. was long over in the case at hand. The offence alleged is under Section 27(d) of the Act which CRL.P No. 6919 of 2022 mandates punishment for a maximum term of imprisonment of two years, and the limitation would run from the date on which the Drugs Inspector receives the sample from the Laboratory, which was on 21-07-2012. The complaint being registered on 2-01-2018 is close to 5 years and 7 months after such receipt and would, therefore, contend that the entire proceedings are vitiated on the ground of it being without jurisdiction. 9. On the other hand, the learned High Court Government Pleader would seek to justify the action of registering the complaint after 5 years and 7 months from 21.07.2012 on the ground that the Drugs Inspector was awaiting sanction from the hands of the Drugs Controller as obtaining under Section 33M of the Act and would submit that the issue stands covered by the judgments rendered by the Apex Court in the cases of UDAI SHANKAR AWASTHI v. STATE OF UTTAR PRADESH AND ANOTHER – Criminal Appeal No.61 of 2013 decided on 9-01-2013 and RAKESH KUMAR JAIN v. STATE CRL.P No. 6919 of 2022 10. Contra to the said submission, the learned senior counsel appearing for the petitioners takes this Court through the Act to contend that sanction/permission would become necessary only in certain circumstances as obtaining sanction under Section 33M of the Act is not necessary in every 11. I have given my anxious consideration to the submissions made by the respective learned counsel and perused the material on record. In furtherance whereof, the only issue that falls for my consideration is whether the impugned proceedings are hit by Section 468 of the Cr.P.C. 12. The afore-narrated facts are not in dispute. The link in the chain of events, narrated hereinbefore, are also not in dispute and are, therefore, not reiterated. To begin with, the receipt of report of sample from the Drugs Testing Laboratory would suffice. The sample was sent to the Laboratory by the Drugs Inspector on 5-01-2012. 6 months thereafter i.e., on 21.07.2012 the report of the Laboratory is received at the hands of the Drugs Inspector terming it to be “not of CRL.P No. 6919 of 2022 standard quality” for “Assay for Folic Acid”. On receipt of the report, the complaint ought to have been registered by the Drugs Inspector, but he chose to seek sanction/permission for registration of crime that too after about a year of receipt of sample i.e., on 8-10-2013. The authority which was competent to sanction i.e., the Drugs Controller accorded such sanction/permission on 8-12-2017. By then it was 5 years and 5 months after receipt of the sample from the hands of the Laboratory. The Drugs Inspector registers the crime invoking Section 200 of Cr.P.C. on 2-01-2018 which is 5 years and 6 months after receipt of the sample for offence punishable under Section 27(d) of the Act. 13. Section 27 of the Act reads as follows: “27. Penalty for manufacture, sale, etc., of drugs in contravention of this Chapter.—Whoever, himself or by any other person on his behalf, manufactures for sale or for distribution, or sells, or stocks or exhibits or offers for sale or (a) any drug deemed to be adulterated under Section 17-A or spurious under Section 17-B and which when used by any person for or in the diagnosis, treatment, mitigation, or prevention of any disease or disorder is likely to cause his death or is likely to cause such harm on his body as would amount to grievous hurt within the meaning of Section 320 of the Indian Penal Code (45 of 1860), solely on account of such drug being adulterated CRL.P No. 6919 of 2022 or spurious or not of standard quality, as the case may be, shall be punishable with imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine which shall not be less than ten lakh rupees or three times value of the drugs confiscated, whichever is Provided that the fine imposed on and released from, the person convicted under this clause shall be paid, by way of compensation, to the person who had used the adulterated or spurious drugs referred to in this clause: Provided further that where the use of the adulterated or spurious drugs referred to in this clause has caused the death of a person who used such drugs, the fine imposed on and realised from, the person convicted under this clause, shall be paid to the relative of the person who had died due to the use of the adulterated or spurious drugs referred to in this clause. Explanation.—For the purposes of the second proviso, the expression “relative” means— (i) spouse of the deceased person; or (ii) a minor legitimate son, and unmarried legitimate daughter and a widowed mother; or (iv) if wholly dependent on the earnings of the deceased person at the time of his death, a son or a daughter who has attained the age of eighteen (v) any person, if wholly or in part, dependent on the earnings of the deceased person at the time of his (a) the parent; or (b) a minor brother or an unmarried sister; or (c) a widowed daughter-in-law; or (e) a minor child of a pre-deceased son; or (f) a minor child of a pre-deceased daughter where no parent of the child is alive; or (g) the paternal grandparent if no parent of the CRL.P No. 6919 of 2022 (i) deemed to be adulterated under Section 17-A, but not being a drug referred to in clause (a), or (ii) without a valid licence as required under clause (c) of Section 18, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to five years and with fine which shall not be less than one lakh rupees or three times the value of the drugs confiscated, whichever is more: Provided that the Court may, for any adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of [less than three years and of fine of less than one lakh rupees; (c) any drug deemed to be spurious under Section 17-B, but not being a drug referred to in clause (a) shall be punishable with imprisonment for a term which shall not less than seven years but which may extend to imprisonment for life and with fine which shall not be (sic less than) three lakh rupees or three times the value of the drugs confiscated, whichever is more: Provided that the Court may, for any adequate and special reasons, to be recorded in the judgment, impose a sentence of imprisonment for a term of less than seven years but not less than three years and of fine of less than one lakh rupees; (d) any drug, other than a drug referred to in clause (a) or clause (b) or clause (c), in contravention of any other provision of this Chapter or any rule made thereunder, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to two years and with fine which shall not be less than twenty thousand rupees: Provided that the Court may for any adequate and special reasons to be recorded in the CRL.P No. 6919 of 2022 judgment impose a sentence of imprisonment for a term of less than one year.” The offence that is made punishable is under Section 27(d) of the Act. Section 27(d) of the Act mandates that contravention of any other provision of this chapter or any rule made there under shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to 2 years. Therefore, the maximum punishment that would become imposable upon one being proved guilty of offence under Section 27(d) of the Act would be for a period of two years. It is now germane to notice Section 468 of the Cr.P.C., it runs as “468. Bar to taking cognizance after lapse of the period of limitation.—(1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation. (2) The period of limitation shall be— (a) six months, if the offence is punishable with fine (b) one year, if the offence is punishable with imprisonment for a term not exceeding one (c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. (3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.” (emphasis supplied) Section 468 of the Cr.P.C. bars the concerned Court from taking cognizance after lapse of the period of limitation and the period of limitation is mandated to be one year if the offence is punishable with imprisonment for a term not exceeding one year and three years if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. Therefore, the case would fall within Section 468 of the Cr.P.C. In the teeth of the afore-quoted provisions of both the Act and the Cr.P.C. the facts are to be considered. The report of the Laboratory comes to the hands of the Drugs Inspector on 21-07-2012, the limitation according to Section 27(d) of the Act would expire on 20-07-2014. The complaint is registered on 2-01-2018, 3 years and 8 months after the period of limitation was over. Cognizance was taken by the learned Magistrate on 20-03-2018 by condoning the delay in registering CRL.P No. 6919 of 2022 the crime, notwithstanding the fact that such an order would run counter to Section 468 of the Cr.P.C. 14. The ground on which condonation of delay was sought was that that the Drugs Inspector who was to register the complaint was awaiting sanction/permission from the hands of the Drugs Controller for registration of the crime and it is in the process of seeking sanction/permission 5 years and 7 months had passed by and, therefore, the delay was condonable. While submitting justification for condonation of delay, the learned High Court Government Pleader seeks to take support of Section 33M of the Act. It therefore becomes germane to notice Section 33M of the Act. Section 33M of the Act forms a part of Chapter IV-A of the Act. The applicability under Chapter IV-A of the Act and Section 33M of the Act read CRL.P No. 6919 of 2022 33-B. Application of Chapter IV-A.—This Chapter shall apply only to 255[Ayurvedic, Siddha and Unani drugs]. “33-M. Cognizance of offences.—(1) No prosecution under this Chapter shall be instituted except by an Inspector with the previous sanction of the authority specified under sub-section (4) of Section 33- (2) No Court inferior to that of a Metropolitan Magistrate or of a Judicial Magistrate of the first class shall try an offence punishable under this Chapter.” Section 33B of the Act makes Chapter IV-A applicable to certain drugs which are Ayurvedic, Siddha or Unani. Section 33M of the Act deals with taking of cognizance of offences which mandates that no prosecution under this Chapter shall be instituted except by an Inspector with the previous sanction of the authority specified under sub-section (4) of Section 33G of the Act. Section 33M of the Act comes under Chapter-IVA. Chapter IVA exclusively deals with the provisions relating to Ayurvedic, Siddha and Unani drugs. Section 33M of the Act forms part of Chapter IVA which deals with the aforesaid drugs. Therefore, Section 33M of the Act cannot but be read to be for the purpose of those drugs enumerated in the said Chapter. CRL.P No. 6919 of 2022 Sanction under Section 33G of the Act for registration of the crime or cognizance by the concerned court under Section 33M of the Act would only be for enumerated drugs in Chapter IVA. Section 33B of the Act makes entire Chapter IVA to become applicable only to Ayurvedic, Siddha and Unani drugs. An unmistakable inference that would flow from a perusal of the provisions extracted hereinabove would be that for a prosecution to be initiated under Section 27(d) of the Act, sanction would be required only if the drugs would be either Ayurvedic, Siddha or Unani. Section 33M of the Act mandates so only if the drugs are those which come within the Chapter. 15. The drugs in the case at hand are not the ones which are either Ayurvedic, Siddha or Unani. They are allopathic drugs and therefore, Section 33M of the Act on the face of it, is inapplicable to the fact situation. The sheet anchor of the learned High Court Government Pleader to lend support to the enormous delay in registering the complaint taking recourse of Section 33M of the Act would thus tumble down. There was absolutely no necessity to await sanction/permission from the CRL.P No. 6919 of 2022 Drugs Controller to register the complaint as the legal sample of the drug that was drawn was not of either Ayurvedic, Siddha or Unani. If the Drugs Inspector has by taking recourse to a wrong provision of law sought sanction from the hands of the Drugs Controller to register prosecution, it cannot be said to be condonable as it was a question of jurisdiction. The statutory bar that kicks in terms of Section 468 of the Cr.P.C. could not have been condoned by both the Courts as it gets at the root of the matter. 16. It is not the date on which the Court takes cognizance of the offence, that would become applicable for the rigours of Section 468 of the Cr.P.C. to operate, but the date on which the crime comes to be registered. In the case at hand, the crime itself is registered after 5 years and 7 months of receipt of report of the sample from the hands of the Laboratory. Therefore, such delay which generates statutory bar could not have been condoned on the specious plea of the prosecution awaiting unnecessary sanction or permission on a misreading of the statute. Therefore, the entire proceedings right from registration of the crime are rendered unsustainable for they CRL.P No. 6919 of 2022 are all without jurisdiction, only in the teeth of Section 468 of 17. In so far as the judgments relied on by the learned High Court Government Pleader are concerned, they are all distinguishable on facts of those cases without much ado. The Apex Court in the case of Udai Shankar Awasthi (supra) has no doubt held that in exceptional circumstances, the Court can condone the delay. The Apex Court was not considering or interpreting the statutory provision akin to or even Section 468 Cr.P.C. The other judgment also follows suit. The issue in the case at hand is to be considered on the bedrock of the statutes which have not been interpreted by the Apex Court in the aforesaid judgments. Therefore, those judgments would lend no assistance to the learned High Court Government Pleader. 18. For the reasons rendered supra, it becomes necessary to direct the competent authority to register the crime in such cases, in quick succession and not resort to red tapism and let the alleged guilty go scot-free on the plea of CRL.P No. 6919 of 2022 limitation. The Authority should also necessarily peruse and understand the statute for registration of crimes in such matters, as delay will defeat the very object of penal action under the statute and it is always said that “procrastination is the thief of time” 19. For the aforesaid reasons, the following: I. The Criminal Petition is allowed. II. The order dated 31st March, 2022 passed by the Principal City Civil and Sessions Judge at Bangalore in Criminal Revision Petition No.323 of 2018 as also the order dated 20th March, 2018 passed by the Presiding Officer, Special Court for Economic Offices, Bangalore in Criminal Miscellaneous No.1 of 2018 stands quashed.
The Karnataka High Court has made it clear that official permission to file a lawsuit, as required by Section 33M of the Drugs & Cosmetics Act of 1940, applies only to Ayurvedic, Siddha, and Unani medicines. This permission is not needed when the case involves Western (Allopathic) drugs. Justice M Nagaprasanna, a single judge, made this statement while agreeing to a request from Emcure Pharmaceuticals and its two Directors. Their request was to cancel the complaint filed against them by a Drug Inspector under the Drugs and Cosmetics Act of 1940. The company and its directors questioned the Magistrate court's decision to accept their case and issue summons. They argued the alleged crime, under Section 27(d) of the Act, had a maximum penalty of two years in jail. The legal deadline for the complaint started on July 21, 2012. This was when the Drug Inspector received the lab report for the drug sample. However, the complaint was filed on January 2, 2018. This was nearly five years and seven months after the report was received. Because of this delay, the company claimed the whole case was invalid. They argued it went against Section 468 of the Criminal Procedure Code (CrPC). Section 468 of the CrPC stops a court from accepting a case after its legal deadline has passed. The deadline is one year if the crime carries a jail term of up to one year. It is three years if the crime carries a jail term of more than one year but up to three years. Findings: First, the court noted that since the lab report was given to the Drug Inspector on July 21, 2012, the deadline to file the complaint, according to Section 27(d) of the Act, should have ended on July 20, 2014. Therefore, the complaint filed on January 2, 2018, was three years and eight months after this deadline had passed. The Magistrate had accepted the case on March 20, 2018, by overlooking the delay in filing the crime. However, this decision went against the rules set by Section 468 of the CrPC. The court rejected the government lawyer's reason for excusing the delay, which was based on Section 33M of the Act. The judge explained that "Section 33M of the Act is part of Chapter-IVA. Chapter IVA only covers rules about Ayurvedic, Siddha, and Unani medicines. The drugs in this case are not Ayurvedic, Siddha, or Unani. They are Western (allopathic) drugs." The court ruled that the Inspector did not need to wait for permission from the Drugs Controller to file the complaint. This was because the drug sample taken was not Ayurvedic, Siddha, or Unani. If the Drug Inspector mistakenly used the wrong law to seek permission from the Drugs Controller for prosecution, that error cannot be excused. This is because it affects the court's power to hear the case. The legal block from Section 468 of the CrPC could not be overlooked by any court. It touches the very core of the matter. The responsible officials were advised not to get caught up in unnecessary official procedures and delays. When ending its decision, the court advised the responsible officials to file such criminal cases quickly. They should not use slow official processes or let accused people go free simply because a legal deadline was missed. Furthermore, the court observed, "The officials should also carefully read and understand the law for filing crimes in these situations. Delays will prevent the main goal of legal punishment from happening, and it is always said that 'putting things off wastes time.'"
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In the night of 17.09.2010, Hasina Khatun suffered burn injuries at her matrimonial home. Five years prior to the incident, she was married to the appellant Piyarul. They had fallen in love and married. Initially, Nurjaman Ali (P.W. 1), father of Hasina did not approve the match. Subsequently, he accepted Piyarul as his son-in-law. A son, namely, Hasan was born to the couple. He was around 3½ years at the time of incident. Aruna Bibi (P.W. 10), sister of Hasina informed her parents about the incident. They came to the matrimonial home of Hasina and heard she had been shifted to Berhampore General Hospital. On the next day, i.e. 18.09.2010 they went to Berhampore General Hospital where it is claimed Hasina told them an altercation had cropped up between Piyarul and herself as she had received a phone call in the mobile phone of Piyarul from a lady. Piyarul became angry and set her on fire. In the morning of 20.09.2010, Hasina expired. On 21.09.2010, Nurjaman Ali (P.W. 1) lodged written complaint resulting in Daulatabad P.S. Case No. 149/10 dated 21.09.2010 under sections 498A and 302 of the Indian Penal Code. In the course of investigation, appellant was arrested and charge-sheet was filed against him. Charges were framed under sections 498A and 302 of I.P.C. against the appellant. Appellant pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined 16 witnesses and exhibited a number of documents. It was the specific defence of the appellant that the incident occurred around 10:00 p.m. and he was not present at his residence. Hasina’s saree accidentally caught fire from a lamp and she suffered burn injuries. Appellant and others removed her to hospital. After the death of Hasina, appellant was falsely implicated in the case. After considering the evidence, the learned trial Judge by the impugned judgment and order dated 26.04.2016 and 28.04.2016 convicted the appellant for commission of offence punishable under section 302 of I.P.C. and sentenced him to suffer imprisonment for life and to pay a fine of Rs. 5,000/-, in default, to undergo simple imprisonment for six months more with a further direction that a sum of Rs. 3,000/- out of the fine, if deposited, be awarded to Hasan Ali, son of the deceased and the remainder be paid to the State to defray the expenses incurred in the prosecution. Mr. Bibaswan Bhattacharyya as Amicus Curiae submits there are two sets of dying declarations made by the deceased. While P.Ws. 4 and 5 stated the victim told them she had suffered accidental burns, P.Ws. 1, 7 to 10 (relations of the deceased) stated the victim told them appellant had set her on fire. Trial Judge disbelieved both sets of dying declarations but relied on Hasan Ali, son of the deceased, to record a finding of guilt against the appellant. Hasan was six years of age at the time of his deposition in 2014 and would have been barely above two years at the time of the incident in 2010. Trial Judge erred in law in relying on a child witness who was barely three years of age at the time of occurrence and unable to appreciate the manner in which the incident occurred. He also disbelieved the alibi of the appellant as transpiring from P.W. 3, a tea stall owner, who stated that the appellant was present in his tea stall at the time of occurrence. There is no legally admissible evidence connecting the appellant with the murder. Hence, the appeal is liable to be allowed. Learned Counsel for the appellant adopts the submission of Mr. Learned Counsel for the State argues Aruna Bibi, sister of the deceased arrived at the spot on the fateful night and the victim made a dying declaration incriminating her husband. Aruna informed her parents and on the next day when they went to the hospital, the victim told them her husband had set her on fire. Trial Judge erroneously disbelieved their versions. No reliance ought to be placed on P.Ws. 4 and 5 as their statements are contrary to the defence case that the victim accidentally caught fire from a kerosene lamp. Victim suffered 98% burns and died at the hospital. Her minor son, P.W. 17, vividly described the manner in which the appellant had set her on fire. Hence, prosecution case has been proved beyond doubt. P.Ws. 1, 7 to 10 are the relations of the deceased. P.W. 1 is her father and first informant. He deposed Hasina was married to the appellant five years prior to the incident. She was tortured by the appellant. At the day of the incident, a phone call had come in the mobile phone of the appellant. His daughter had received the phone call. Appellant got angry and assaulted her daughter. Thereafter, the appellant put kerosene oil on his daughter and set her on fire. He came to the place of occurrence. His daughter stated that the appellant had set fire on her. She expired three days later in the hospital. After the death of his daughter, he filed written complaint which was scribed by P.W. 15, Montu Mohuri (Mondal). He put his LTI on the inquest report prepared by police (P.W. 14) as well as Magistrate. During cross-examination, P.W. 1 stated there was a love affair between the appellant and his daughter. Initially, he did not support the marriage. His daughter went to the house of the appellant and married. Subsequently, he accepted the appellant as his son-in-law. He denied the suggestion that his daughter had suffered accidental burns around 10:00 p.m. at night. Salema Bibi (P.W. 7) is the mother of the deceased. She deposed appellant had illicit relationship with a lady. As Hasina protested, the appellant assaulted her. Torture began after the birth of a son to the couple. Her elder daughter Aruna Bibi (P.W. 10) informed them that appellant had set Hasina on fire. They went to the matrimonial home of Hasina but could not find her. On the next day, i.e., 18.09.2010, they went to Berhampore New General Hospital. Hasina told them she had received phone call on the mobile of Piyarul. Piyarul became angry and threatened her. Thereafter, he set her on fire. Her version is corroborated by her sons Abu Taher (P.W. 8) and Abu Sayed Sk (P.W. 9). Aruna Bibi (P.W. 10) deposed she is a resident of Nowdapara where the appellant also resided. On the day of the incident, hearing hue and cry, she rushed to the matrimonial home of Hasina and found her in burnt condition. Hasina told her father of Hasan had set fire on her. Appellant and his mother took Hasina to hospital. She reported the incident to her parents. Hasina died after three days in hospital. In cross-examination, after three days she informed the incident to police. Three days thereafter police interrogated her. These witnesses have spoken of incriminating oral dying declaration made by the victim firstly, on the night of the incident to Aruna Bibi (P.W. 10) and, thereafter, on the next day in the morning to her parents (P.Ws. 1 and 7) and her brothers (P.W. 8 and 9). Trial Judge has rightly disbelieved this aspect of the prosecution P.W. 1, father of the victim has not corroborated Aruna. P.W. 1 is completely silent both in F.I.R. as well as in Court that Aruna had come to their house and informed them that the victim had stated that the appellant had set fire on her. Though P.Ws. 7 to 9 claimed Aruna heard the incident from the victim and reported the matter to them, this vital witness as per investigating officer (P.W. 16) was not ever at her residence and was belatedly examined on 29.09.2010, that is, about eight days after the registration of F.I.R. In view of the aforesaid circumstances, trial Judge was unwilling to rely on Aruna Bibi, P.W. 10, and give credence to her version that the victim had made an oral dying declaration to her on the very night of the incident. Even the oral dying declaration claimed to be made by the victim in the morning of the next day, i.e., 18.09.2010 to her relations appears to be doubtful when one juxtaposes such evidence against the notings of the medical officer (P.W. 13) in the treatment sheet marked as Exhibit-8. P.W. 1, 7 to 10 stated they visited the victim at Berhampore New General Hospial in the morning of 18.09.2010. P.W. 9 stated they had been to the hospital around 7:00 a.m. At that time, the victim made dying declaration to them. However, P.W. 13 examined the victim around 8:50 a.m. on that day and found her unconscious. He also noted no relations of the victim were present at that hour. These notings of the medical officer with regard to state of consciousness of the victim in the morning of 18.09.2010 and the absence of her relations in the hospital casts serious doubt whether the victim was at all conscious and in a fit state to make statement to her relations at that hour. In this backdrop, trial Judge rightly discounted the evidence of the relations of the victim with regard to dying declaration made to them in the morning of 18.09.2010. Another set of exonerative dying declarations is transpiring from the evidence on record. P.W. 4, Jyotsna Bibi, is a neighbour of the appellant. She deposed hearing hue and cry, she came to the residence of the appellant and found Hasina had caught fire. Victim was removed in a rickshaw van. In cross-examination, she stated she saw mother-in-law was pouring water on Hasina’s body. Hasina told her she had caught fire from the oven. Piyarul took her to hospital. P.W. 5 (Anowar Hossain), rickshaw van owner is a hostile witness. He altered his version in Court and stated victim told him at the time of cooking she had caught fire. Trial Court rightly disbelieved the so-called exonerative dying declarations made to the aforesaid witnesses. P.W. 5 spoke about the exonerative dying declaration for the first time in Court. His deposition in Court is at variance to his earlier statement to police wherein he had stated he heard appellant and his mother suggesting Hasina to state that she had accidentally caught fire as the mosquito net in the room got burnt from a kerosene lamp. Hence, this witness is wholly unreliable. Moreover, these exonerative dying declarations are even inconsistent with the defence of the appellant. During his examination under section 313 Cr.P.C. appellant claimed victim’s saree had accidentally caught fire from a lamp but P.Ws. 4 and 5 stated victim claimed to have caught fire while cooking. No oven or cooking utensils were recovered from the room where the victim had caught fire. These circumstances weighed heavily with the trial Judge who rightly discarded the evidence of these witnesses with regard to the so- called exonerative dying declaration. Trial Court also did not believe the abili of the appellant that he was not present at his residence when the incident occurred. With regard to his alibi, appellant has relied on P.W. 3, a tea stall owner. He claimed on the fateful night, appellant had come from Islampur by bus and was in his shop around 9:00 p.m. Suddenly, they heard hue and cry from the house of the appellant and rushed to the spot. P.W. 3 found Hasina lying in a ditch and her mother-in-law was pouring water on her body. Thereafter, she was removed in a rickshaw van to hospital. P.W. 3 was rightly disbelieved by the trial Judge. He claimed appellant had come from Islampur by bus and was in his tea stall around 9:00 p.m. when the incident occurred. Defence of the appellant as transpiring from the trend of cross-examination as well as his statement during his examination under section 313 Cr.P.C. show he claimed the incident occurred at 10.00 p.m. and not 9:00 p.m. as contended by P.W. 3. Appellant has also not uttered a single word with regard to his returning from Islampur by bus as stated by the said witness. Thus, version of P.W. 3 is untrustworthy and not even congruous with the defence taken by the appellant. There are other circumstances which improbabilises P.W. 3. Sketch map prepared by the investigation officer. P.W. 16 and marked as Exhibit-11 does not show the presence a tea stall in the vicinity of the house of the appellant. P.W. 3 was unable to produce documents to show that he was carrying on such business near the place of occurrence. P.W. 3 claimed he saw the body of the victim lying in a ditch near the house of the appellant. There is no ditch near the house of the appellant as per the sketch map prepared by the investigation officer. None of the witnesses stated the body of the victim was lying in a ditch near the house of the appellant. Trial Court rightly observed the facts and circumstances of the case improbabilises P.W. 3 with regard to the time of occurrence. Evidence on record shows victim was promptly brought to Islampur Hospital in a van rickshaw. It took 20 minutes to arrive at Islampur Hospital. Referral card (Exhibit-7) of Islampur Hospital shows the victim was referred to a higher medical centre for better treatment around 1:40 a.m. As the victim had been promptly brought to Islampur Hospital after the occurrence and immediately thereafter referred to a higher medical centre around 1:40 a.m., it is unlikely that the incident occurred around 9:00 p.m. On the contrary, the circumstances are consistent with the prosecution case that the incident occurred around midnight and, immediately thereafter, the victim had been shifted in a van rickshaw to Islampur Hospital from where she was referred to Berhampore New General Hospital. For these reasons, I am in agreement with the trial Judge that the alibi of the appellant is not believable. The Trial Court strongly relied on the evidence of the child witness Hasan Ali who was summoned by the Court under section 311 Cr.P.C. and examined to arrive at a just decision of the case as P.W. 17. Hasan stated he was six years old at the time of his examination on 28.11.2014. The Court put various questions to the child witness to test his understanding and capacity to depose. Upon being satisfied with the competence of the witness to depose, trial Judge recorded his evidence. Hasan deposed his mother sustained burns and passed away. He was in the house when the incident occurred. His father lit fire with a stick and burnt her. He closed the door from outside. He had gone outside to urinate and saw his father set his mother on fire inside the house. A person tried to open the door but his father kicked him. His mother was removed by his father and two persons to Islampur Hospital. She did not state anything at that time. His mother passed away in hospital. He stated the incident happened in midnight. He was unable to state the time from the clock in Court. After the death of his mother, he started living in his maternal uncles’ house. In cross-examination, he stated he learnt about his mother having sustained burn injuries and passing away at his maternal uncles’ house. Trial Court relied on the aforesaid witness and came to a finding of guilt against the appellant. When the prosecution primarily rests on the evidence of a child witness, it is the duty of the Court to examine the evidence of the said witness with utmost care and circumspection. A child of tender years is prone to prompting and tutoring. Hence, an onerous duty is cast on the Court to examine the deposition of a child witness not only on his capacity and ability to understand circumstances but also on the possibility of the witness being tutored by persons who have control and custody over him. In the F.I.R. P.W. 1 claimed Hasan was 3½ years at the time of the incident. But during his examination in Court on 28.11.2014 he claimed he was six years old. By such estimation he would be barely two years when the incident occurred. No clear proof with regard to the actual age of the child at the time of incident is On an approximation from the evidence on record, it appears the child was between 2-3½ years at the time of the incident. While admissibility of the evidence of a child witness is dependent on his ability to understand questions put to him and give rational answers thereto as per section 118 of the Evidence Act, probative value of his deposition would dependent on an additional factor, that is, his capacity to comprehend and understand the events at the time of occurrence. In the present case, though the child witness was six years old at the time of his examination and was capable of answering questions, rationally, it must be borne in mind he was deposing with regard to events which occurred in 2010 when he was barely 3½ years old (as per F.I.R.) and not even two years old (as per his own deposition in Court). The extremely tender age of the child witness, that is, between 2-3 years at the time when the incident occurred gives rise to serious doubt whether the said witness was able to comprehend the circumstances in which her mother had suffered burn injuries and died. I am further prompted to come to such a conclusion as the child witness stated these facts for the first time in Court after four years of the incident. During this time he was in the control and custody of her maternal grandparents and uncles. Had the child understood the circumstances in which her mother had suffered burn injuries, he would have certainly divulged them to his maternal grandparents and uncles. None of these relations have deposed that Hasan told them that the appellant had set his mother on fire. In the absence of corroboration from the relations of the deceased who had custody of the child I find it difficult to rely on his evidence narrated for the first time in Court after four years. It is also relevant to note that he had neither been interrogated by police nor cited as a witness for the prosecution. On the other hand, it is possible upon being summoned by the Court he had been tutored by his maternal grandparents/uncles to depose against the appellant. An in-depth scrutiny of his deposition also reveals various inconsistencies or exaggerations. In one of the part of his deposition, he stated he was in the room when his mother was set on fire, while in another part he stated he went out of the room to urinate and saw his father set his mother on fire. Incident occurred in the dead of the night and it is highly improbable a child barely three years old would go out on his own to urinate outside the house. He stated his father had locked the door of the room where his mother was burning from outside and had kicked a man who had tried to open the door. These events as narrated by the witness is wholly inconsistent with his deposition that the appellant had immediately after the incident brought a rickshaw van and removed his mother to hospital. Deposition of the child witness is, therefore, fraught with inconsistencies and exaggerations. Extreme tender age of the witness at the time of occurrence and the fact he had not narrated such facts to his grandparents or uncles with whom he had been residing for the last four years give rise to serious doubt as to his maturity to understand circumstances leading to the death of his mother. Hence, it would be unsafe to rely on this witness to come to a finding of guilt against the However, the evidence on record unequivocally established that at night of 17.09.2010 the victim housewife had suffered extensive burn injuries at her matrimonial home resulting in her death. P.W. 13, Dr. Md. N. Rahaman, medical officer who treated the victim at Berhampore General Hospital noted she had suffered 80% burn injury. P.W. 11, Dr. Swapan Kr. Mondal, post mortem doctor deposed he found burn injuries all over her body except scalp, i.e., 98% burn. He opined death was due to cardio respiratory failure owing to shock resulting from burn injury, ante mortem in nature. However, post mortem doctor did not opine whether the death was homicidal or not. If the child witness is not believed, there is no direct evidence how the victim housewife suffered burnt injuries. While prosecution insists appellant had set her on fire, it is the defence version she suffered accidental burns when her saree caught fire in a kerosene lamp. Attending facts and circumstances of the case do not wholly rule out the possibility of accidental burns. Immediately after the incident, appellant brought a rickshaw van and took the housewife to Islampur Hospital and, thereafter to Berhampore General Hospital. Had he intended to murder his wife, would he be so prompt to take her to hospital to save her life? Prosecution case that such effort was a mere ruse as mother-in- law of the victim was heard prompting to the latter that she should state that she suffered accidental burns is not supported by the rickshaw van puller, (P.W. 5) who is alleged to have heard such statement. P.W. 5 did not support the prosecution case in Court and was declared hostile. Under such circumstances, trial Court erred in law in relying on his previous statement to the investigating officer which was denied by him in Court. Appellant had stated that the victim had suffered accidental burn from the kerosene lamp. Kerosene lamps are ordinarily available in every village home. Recovery of half full bottle of kerosene and a burnt mat from the place of occurrence does not rule out the possibility of accidental burn as much as it does not lead to the inevitable conclusion of homicidal death. No investigation with regard to other compelling circumstances, namely, presence of smell of kerosene oil on the body or in the wearing apparels of the victim were undertaken to rule out the possibility of accidental burn. These loopholes in the prosecution case leave a lingering doubt that the victim may have suffered accidental burn injuries which prompted her husband that is the appellant and her mother-in-law to take all measures to save her life. In this backdrop, I am inclined to extend the benefit of the doubt to the appellant and acquit him of the charge levelled against him. Conviction and sentence of the appellant is set aside. The appellant shall be released from custody, if not wanted in any other case, upon execution of a bond to the satisfaction of the trial court which shall remain in force for a period of six months in terms of section 437A of the Code of Criminal Procedure. In view of disposal of the appeal, connected application, if any, is also disposed of. I record my appreciation for the able assistance rendered by Mr. Bibaswan Bhattacharya, learned advocate as Amicus Curiae in disposing of the appeal. Let a copy of this judgment along with the lower court records be forthwith sent down to the trial Court at once. Photostat certified copy of this judgment, if applied for, shall be made available to the appellants upon completion of all formalities. I agree.
A high court in Calcutta recently overturned a murder conviction against a man. The court decided that the child who witnessed the event was too young when it happened. Because of this, the child was not able to understand what was going on and might have been told what to say by others. In this case, the woman who died had burn injuries at her home. She later passed away in the hospital. Two judges, Justice Bivas Pattanayak and Justice Joymalya Bagchi, saw in the case files that the first court had heavily relied on what the child witness said. The child was called by the court to testify, and this testimony was used to find the woman's husband guilty. The court stressed that what a child witness says must be looked at with great care. The judges stated, "When the main case against someone depends mostly on what a child witness says, it is the court's job to examine that statement with extreme caution. A young child can easily be influenced or told what to say. So, the court has a major responsibility to check the child's testimony, not just to see if they could understand what happened, but also if they might have been coached by the people caring for them." The court also pointed out that the woman's child was just two years old when the event happened. There was no clear proof of the child's exact age at that time. The judges observed that for a child's statement to be allowed in court, they must be able to understand questions and give sensible answers (as per Section 118 of the Evidence Act, a specific law). However, how much value that statement has also depends on another factor: the child's ability to truly understand what was happening when the event took place. The court further stated that the child witness could not understand what happened when their mother died. The judges said, "In this case, even though the child witness was six years old when questioned and could answer questions sensibly, it's important to remember they were talking about events from 2010. At that time, the child was only about three and a half years old (according to the police report) or even less than two years old (according to the child's own statement in court). The child's very young age, between two and three years when the incident occurred, makes us seriously doubt if they could understand how their mother got burn injuries and died." The court also observed that the child testified in court four years after the event. During that time, the child had been living with their mother's parents and brothers. The court believed that if the child had understood how their mother got the burn injuries, they would have certainly told their grandparents and uncles. However, none of these relatives said anything in court about the child telling them such details. The court decided that without any support from the relatives who cared for the child, it was hard to trust the child's statement. This statement was given for the first time in court after four years. The court also noted that it was possible the child was coached by their mother's parents or brothers to testify against the husband, especially once called to court. The court also thought that the child's testimony had many contradictions. The judges emphasized, "The child's statement is full of things that don't match and exaggerations. The witness's very young age when the event happened, and the fact that they didn't tell their grandparents or uncles about it (even though they lived with them for four years), raises serious doubts about their ability to truly understand what led to their mother's death. Because of this, it would be unsafe to rely on this witness to find the husband guilty." The judges further pointed out that if the child witness cannot be trusted, then there is no other clear proof to show how the woman got her burn injuries. The court also believed that the other details and conditions of the case do not completely remove the chance that the burns were accidental. Because of this, the court found the husband not guilty. The judges stated, "These weaknesses in the case against him leave a remaining uncertainty that the woman might have gotten accidental burn injuries. This would have caused her husband and mother-in-law to try everything to save her life. Given these points, I have decided to give the husband the benefit of the doubt and find him not guilty of the accusation against him."
In the night of 17.09.2010, Hasina Khatun suffered burn injuries at her matrimonial home. Five years prior to the incident, she was married to the appellant Piyarul. They had fallen in love and married. Initially, Nurjaman Ali (P.W. 1), father of Hasina did not approve the match. Subsequently, he accepted Piyarul as his son-in-law. A son, namely, Hasan was born to the couple. He was around 3½ years at the time of incident. Aruna Bibi (P.W. 10), sister of Hasina informed her parents about the incident. They came to the matrimonial home of Hasina and heard she had been shifted to Berhampore General Hospital. On the next day, i.e. 18.09.2010 they went to Berhampore General Hospital where it is claimed Hasina told them an altercation had cropped up between Piyarul and herself as she had received a phone call in the mobile phone of Piyarul from a lady. Piyarul became angry and set her on fire. In the morning of 20.09.2010, Hasina expired. On 21.09.2010, Nurjaman Ali (P.W. 1) lodged written complaint resulting in Daulatabad P.S. Case No. 149/10 dated 21.09.2010 under sections 498A and 302 of the Indian Penal Code. In the course of investigation, appellant was arrested and charge-sheet was filed against him. Charges were framed under sections 498A and 302 of I.P.C. against the appellant. Appellant pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined 16 witnesses and exhibited a number of documents. It was the specific defence of the appellant that the incident occurred around 10:00 p.m. and he was not present at his residence. Hasina’s saree accidentally caught fire from a lamp and she suffered burn injuries. Appellant and others removed her to hospital. After the death of Hasina, appellant was falsely implicated in the case. After considering the evidence, the learned trial Judge by the impugned judgment and order dated 26.04.2016 and 28.04.2016 convicted the appellant for commission of offence punishable under section 302 of I.P.C. and sentenced him to suffer imprisonment for life and to pay a fine of Rs. 5,000/-, in default, to undergo simple imprisonment for six months more with a further direction that a sum of Rs. 3,000/- out of the fine, if deposited, be awarded to Hasan Ali, son of the deceased and the remainder be paid to the State to defray the expenses incurred in the prosecution. Mr. Bibaswan Bhattacharyya as Amicus Curiae submits there are two sets of dying declarations made by the deceased. While P.Ws. 4 and 5 stated the victim told them she had suffered accidental burns, P.Ws. 1, 7 to 10 (relations of the deceased) stated the victim told them appellant had set her on fire. Trial Judge disbelieved both sets of dying declarations but relied on Hasan Ali, son of the deceased, to record a finding of guilt against the appellant. Hasan was six years of age at the time of his deposition in 2014 and would have been barely above two years at the time of the incident in 2010. Trial Judge erred in law in relying on a child witness who was barely three years of age at the time of occurrence and unable to appreciate the manner in which the incident occurred. He also disbelieved the alibi of the appellant as transpiring from P.W. 3, a tea stall owner, who stated that the appellant was present in his tea stall at the time of occurrence. There is no legally admissible evidence connecting the appellant with the murder. Hence, the appeal is liable to be allowed. Learned Counsel for the appellant adopts the submission of Mr. Learned Counsel for the State argues Aruna Bibi, sister of the deceased arrived at the spot on the fateful night and the victim made a dying declaration incriminating her husband. Aruna informed her parents and on the next day when they went to the hospital, the victim told them her husband had set her on fire. Trial Judge erroneously disbelieved their versions. No reliance ought to be placed on P.Ws. 4 and 5 as their statements are contrary to the defence case that the victim accidentally caught fire from a kerosene lamp. Victim suffered 98% burns and died at the hospital. Her minor son, P.W. 17, vividly described the manner in which the appellant had set her on fire. Hence, prosecution case has been proved beyond doubt. P.Ws. 1, 7 to 10 are the relations of the deceased. P.W. 1 is her father and first informant. He deposed Hasina was married to the appellant five years prior to the incident. She was tortured by the appellant. At the day of the incident, a phone call had come in the mobile phone of the appellant. His daughter had received the phone call. Appellant got angry and assaulted her daughter. Thereafter, the appellant put kerosene oil on his daughter and set her on fire. He came to the place of occurrence. His daughter stated that the appellant had set fire on her. She expired three days later in the hospital. After the death of his daughter, he filed written complaint which was scribed by P.W. 15, Montu Mohuri (Mondal). He put his LTI on the inquest report prepared by police (P.W. 14) as well as Magistrate. During cross-examination, P.W. 1 stated there was a love affair between the appellant and his daughter. Initially, he did not support the marriage. His daughter went to the house of the appellant and married. Subsequently, he accepted the appellant as his son-in-law. He denied the suggestion that his daughter had suffered accidental burns around 10:00 p.m. at night. Salema Bibi (P.W. 7) is the mother of the deceased. She deposed appellant had illicit relationship with a lady. As Hasina protested, the appellant assaulted her. Torture began after the birth of a son to the couple. Her elder daughter Aruna Bibi (P.W. 10) informed them that appellant had set Hasina on fire. They went to the matrimonial home of Hasina but could not find her. On the next day, i.e., 18.09.2010, they went to Berhampore New General Hospital. Hasina told them she had received phone call on the mobile of Piyarul. Piyarul became angry and threatened her. Thereafter, he set her on fire. Her version is corroborated by her sons Abu Taher (P.W. 8) and Abu Sayed Sk (P.W. 9). Aruna Bibi (P.W. 10) deposed she is a resident of Nowdapara where the appellant also resided. On the day of the incident, hearing hue and cry, she rushed to the matrimonial home of Hasina and found her in burnt condition. Hasina told her father of Hasan had set fire on her. Appellant and his mother took Hasina to hospital. She reported the incident to her parents. Hasina died after three days in hospital. In cross-examination, after three days she informed the incident to police. Three days thereafter police interrogated her. These witnesses have spoken of incriminating oral dying declaration made by the victim firstly, on the night of the incident to Aruna Bibi (P.W. 10) and, thereafter, on the next day in the morning to her parents (P.Ws. 1 and 7) and her brothers (P.W. 8 and 9). Trial Judge has rightly disbelieved this aspect of the prosecution P.W. 1, father of the victim has not corroborated Aruna. P.W. 1 is completely silent both in F.I.R. as well as in Court that Aruna had come to their house and informed them that the victim had stated that the appellant had set fire on her. Though P.Ws. 7 to 9 claimed Aruna heard the incident from the victim and reported the matter to them, this vital witness as per investigating officer (P.W. 16) was not ever at her residence and was belatedly examined on 29.09.2010, that is, about eight days after the registration of F.I.R. In view of the aforesaid circumstances, trial Judge was unwilling to rely on Aruna Bibi, P.W. 10, and give credence to her version that the victim had made an oral dying declaration to her on the very night of the incident. Even the oral dying declaration claimed to be made by the victim in the morning of the next day, i.e., 18.09.2010 to her relations appears to be doubtful when one juxtaposes such evidence against the notings of the medical officer (P.W. 13) in the treatment sheet marked as Exhibit-8. P.W. 1, 7 to 10 stated they visited the victim at Berhampore New General Hospial in the morning of 18.09.2010. P.W. 9 stated they had been to the hospital around 7:00 a.m. At that time, the victim made dying declaration to them. However, P.W. 13 examined the victim around 8:50 a.m. on that day and found her unconscious. He also noted no relations of the victim were present at that hour. These notings of the medical officer with regard to state of consciousness of the victim in the morning of 18.09.2010 and the absence of her relations in the hospital casts serious doubt whether the victim was at all conscious and in a fit state to make statement to her relations at that hour. In this backdrop, trial Judge rightly discounted the evidence of the relations of the victim with regard to dying declaration made to them in the morning of 18.09.2010. Another set of exonerative dying declarations is transpiring from the evidence on record. P.W. 4, Jyotsna Bibi, is a neighbour of the appellant. She deposed hearing hue and cry, she came to the residence of the appellant and found Hasina had caught fire. Victim was removed in a rickshaw van. In cross-examination, she stated she saw mother-in-law was pouring water on Hasina’s body. Hasina told her she had caught fire from the oven. Piyarul took her to hospital. P.W. 5 (Anowar Hossain), rickshaw van owner is a hostile witness. He altered his version in Court and stated victim told him at the time of cooking she had caught fire. Trial Court rightly disbelieved the so-called exonerative dying declarations made to the aforesaid witnesses. P.W. 5 spoke about the exonerative dying declaration for the first time in Court. His deposition in Court is at variance to his earlier statement to police wherein he had stated he heard appellant and his mother suggesting Hasina to state that she had accidentally caught fire as the mosquito net in the room got burnt from a kerosene lamp. Hence, this witness is wholly unreliable. Moreover, these exonerative dying declarations are even inconsistent with the defence of the appellant. During his examination under section 313 Cr.P.C. appellant claimed victim’s saree had accidentally caught fire from a lamp but P.Ws. 4 and 5 stated victim claimed to have caught fire while cooking. No oven or cooking utensils were recovered from the room where the victim had caught fire. These circumstances weighed heavily with the trial Judge who rightly discarded the evidence of these witnesses with regard to the so- called exonerative dying declaration. Trial Court also did not believe the abili of the appellant that he was not present at his residence when the incident occurred. With regard to his alibi, appellant has relied on P.W. 3, a tea stall owner. He claimed on the fateful night, appellant had come from Islampur by bus and was in his shop around 9:00 p.m. Suddenly, they heard hue and cry from the house of the appellant and rushed to the spot. P.W. 3 found Hasina lying in a ditch and her mother-in-law was pouring water on her body. Thereafter, she was removed in a rickshaw van to hospital. P.W. 3 was rightly disbelieved by the trial Judge. He claimed appellant had come from Islampur by bus and was in his tea stall around 9:00 p.m. when the incident occurred. Defence of the appellant as transpiring from the trend of cross-examination as well as his statement during his examination under section 313 Cr.P.C. show he claimed the incident occurred at 10.00 p.m. and not 9:00 p.m. as contended by P.W. 3. Appellant has also not uttered a single word with regard to his returning from Islampur by bus as stated by the said witness. Thus, version of P.W. 3 is untrustworthy and not even congruous with the defence taken by the appellant. There are other circumstances which improbabilises P.W. 3. Sketch map prepared by the investigation officer. P.W. 16 and marked as Exhibit-11 does not show the presence a tea stall in the vicinity of the house of the appellant. P.W. 3 was unable to produce documents to show that he was carrying on such business near the place of occurrence. P.W. 3 claimed he saw the body of the victim lying in a ditch near the house of the appellant. There is no ditch near the house of the appellant as per the sketch map prepared by the investigation officer. None of the witnesses stated the body of the victim was lying in a ditch near the house of the appellant. Trial Court rightly observed the facts and circumstances of the case improbabilises P.W. 3 with regard to the time of occurrence. Evidence on record shows victim was promptly brought to Islampur Hospital in a van rickshaw. It took 20 minutes to arrive at Islampur Hospital. Referral card (Exhibit-7) of Islampur Hospital shows the victim was referred to a higher medical centre for better treatment around 1:40 a.m. As the victim had been promptly brought to Islampur Hospital after the occurrence and immediately thereafter referred to a higher medical centre around 1:40 a.m., it is unlikely that the incident occurred around 9:00 p.m. On the contrary, the circumstances are consistent with the prosecution case that the incident occurred around midnight and, immediately thereafter, the victim had been shifted in a van rickshaw to Islampur Hospital from where she was referred to Berhampore New General Hospital. For these reasons, I am in agreement with the trial Judge that the alibi of the appellant is not believable. The Trial Court strongly relied on the evidence of the child witness Hasan Ali who was summoned by the Court under section 311 Cr.P.C. and examined to arrive at a just decision of the case as P.W. 17. Hasan stated he was six years old at the time of his examination on 28.11.2014. The Court put various questions to the child witness to test his understanding and capacity to depose. Upon being satisfied with the competence of the witness to depose, trial Judge recorded his evidence. Hasan deposed his mother sustained burns and passed away. He was in the house when the incident occurred. His father lit fire with a stick and burnt her. He closed the door from outside. He had gone outside to urinate and saw his father set his mother on fire inside the house. A person tried to open the door but his father kicked him. His mother was removed by his father and two persons to Islampur Hospital. She did not state anything at that time. His mother passed away in hospital. He stated the incident happened in midnight. He was unable to state the time from the clock in Court. After the death of his mother, he started living in his maternal uncles’ house. In cross-examination, he stated he learnt about his mother having sustained burn injuries and passing away at his maternal uncles’ house. Trial Court relied on the aforesaid witness and came to a finding of guilt against the appellant. When the prosecution primarily rests on the evidence of a child witness, it is the duty of the Court to examine the evidence of the said witness with utmost care and circumspection. A child of tender years is prone to prompting and tutoring. Hence, an onerous duty is cast on the Court to examine the deposition of a child witness not only on his capacity and ability to understand circumstances but also on the possibility of the witness being tutored by persons who have control and custody over him. In the F.I.R. P.W. 1 claimed Hasan was 3½ years at the time of the incident. But during his examination in Court on 28.11.2014 he claimed he was six years old. By such estimation he would be barely two years when the incident occurred. No clear proof with regard to the actual age of the child at the time of incident is On an approximation from the evidence on record, it appears the child was between 2-3½ years at the time of the incident. While admissibility of the evidence of a child witness is dependent on his ability to understand questions put to him and give rational answers thereto as per section 118 of the Evidence Act, probative value of his deposition would dependent on an additional factor, that is, his capacity to comprehend and understand the events at the time of occurrence. In the present case, though the child witness was six years old at the time of his examination and was capable of answering questions, rationally, it must be borne in mind he was deposing with regard to events which occurred in 2010 when he was barely 3½ years old (as per F.I.R.) and not even two years old (as per his own deposition in Court). The extremely tender age of the child witness, that is, between 2-3 years at the time when the incident occurred gives rise to serious doubt whether the said witness was able to comprehend the circumstances in which her mother had suffered burn injuries and died. I am further prompted to come to such a conclusion as the child witness stated these facts for the first time in Court after four years of the incident. During this time he was in the control and custody of her maternal grandparents and uncles. Had the child understood the circumstances in which her mother had suffered burn injuries, he would have certainly divulged them to his maternal grandparents and uncles. None of these relations have deposed that Hasan told them that the appellant had set his mother on fire. In the absence of corroboration from the relations of the deceased who had custody of the child I find it difficult to rely on his evidence narrated for the first time in Court after four years. It is also relevant to note that he had neither been interrogated by police nor cited as a witness for the prosecution. On the other hand, it is possible upon being summoned by the Court he had been tutored by his maternal grandparents/uncles to depose against the appellant. An in-depth scrutiny of his deposition also reveals various inconsistencies or exaggerations. In one of the part of his deposition, he stated he was in the room when his mother was set on fire, while in another part he stated he went out of the room to urinate and saw his father set his mother on fire. Incident occurred in the dead of the night and it is highly improbable a child barely three years old would go out on his own to urinate outside the house. He stated his father had locked the door of the room where his mother was burning from outside and had kicked a man who had tried to open the door. These events as narrated by the witness is wholly inconsistent with his deposition that the appellant had immediately after the incident brought a rickshaw van and removed his mother to hospital. Deposition of the child witness is, therefore, fraught with inconsistencies and exaggerations. Extreme tender age of the witness at the time of occurrence and the fact he had not narrated such facts to his grandparents or uncles with whom he had been residing for the last four years give rise to serious doubt as to his maturity to understand circumstances leading to the death of his mother. Hence, it would be unsafe to rely on this witness to come to a finding of guilt against the However, the evidence on record unequivocally established that at night of 17.09.2010 the victim housewife had suffered extensive burn injuries at her matrimonial home resulting in her death. P.W. 13, Dr. Md. N. Rahaman, medical officer who treated the victim at Berhampore General Hospital noted she had suffered 80% burn injury. P.W. 11, Dr. Swapan Kr. Mondal, post mortem doctor deposed he found burn injuries all over her body except scalp, i.e., 98% burn. He opined death was due to cardio respiratory failure owing to shock resulting from burn injury, ante mortem in nature. However, post mortem doctor did not opine whether the death was homicidal or not. If the child witness is not believed, there is no direct evidence how the victim housewife suffered burnt injuries. While prosecution insists appellant had set her on fire, it is the defence version she suffered accidental burns when her saree caught fire in a kerosene lamp. Attending facts and circumstances of the case do not wholly rule out the possibility of accidental burns. Immediately after the incident, appellant brought a rickshaw van and took the housewife to Islampur Hospital and, thereafter to Berhampore General Hospital. Had he intended to murder his wife, would he be so prompt to take her to hospital to save her life? Prosecution case that such effort was a mere ruse as mother-in- law of the victim was heard prompting to the latter that she should state that she suffered accidental burns is not supported by the rickshaw van puller, (P.W. 5) who is alleged to have heard such statement. P.W. 5 did not support the prosecution case in Court and was declared hostile. Under such circumstances, trial Court erred in law in relying on his previous statement to the investigating officer which was denied by him in Court. Appellant had stated that the victim had suffered accidental burn from the kerosene lamp. Kerosene lamps are ordinarily available in every village home. Recovery of half full bottle of kerosene and a burnt mat from the place of occurrence does not rule out the possibility of accidental burn as much as it does not lead to the inevitable conclusion of homicidal death. No investigation with regard to other compelling circumstances, namely, presence of smell of kerosene oil on the body or in the wearing apparels of the victim were undertaken to rule out the possibility of accidental burn. These loopholes in the prosecution case leave a lingering doubt that the victim may have suffered accidental burn injuries which prompted her husband that is the appellant and her mother-in-law to take all measures to save her life. In this backdrop, I am inclined to extend the benefit of the doubt to the appellant and acquit him of the charge levelled against him. Conviction and sentence of the appellant is set aside. The appellant shall be released from custody, if not wanted in any other case, upon execution of a bond to the satisfaction of the trial court which shall remain in force for a period of six months in terms of section 437A of the Code of Criminal Procedure. In view of disposal of the appeal, connected application, if any, is also disposed of. I record my appreciation for the able assistance rendered by Mr. Bibaswan Bhattacharya, learned advocate as Amicus Curiae in disposing of the appeal. Let a copy of this judgment along with the lower court records be forthwith sent down to the trial Court at once. Photostat certified copy of this judgment, if applied for, shall be made available to the appellants upon completion of all formalities. I agree.
A high court in Calcutta recently overturned a murder conviction against a man. The court decided that the child who witnessed the event was too young when it happened. Because of this, the child was not able to understand what was going on and might have been told what to say by others. In this case, the woman who died had burn injuries at her home. She later passed away in the hospital. Two judges, Justice Bivas Pattanayak and Justice Joymalya Bagchi, saw in the case files that the first court had heavily relied on what the child witness said. The child was called by the court to testify, and this testimony was used to find the woman's husband guilty. The court stressed that what a child witness says must be looked at with great care. The judges stated, "When the main case against someone depends mostly on what a child witness says, it is the court's job to examine that statement with extreme caution. A young child can easily be influenced or told what to say. So, the court has a major responsibility to check the child's testimony, not just to see if they could understand what happened, but also if they might have been coached by the people caring for them." The court also pointed out that the woman's child was just two years old when the event happened. There was no clear proof of the child's exact age at that time. The judges observed that for a child's statement to be allowed in court, they must be able to understand questions and give sensible answers (as per Section 118 of the Evidence Act, a specific law). However, how much value that statement has also depends on another factor: the child's ability to truly understand what was happening when the event took place. The court further stated that the child witness could not understand what happened when their mother died. The judges said, "In this case, even though the child witness was six years old when questioned and could answer questions sensibly, it's important to remember they were talking about events from 2010. At that time, the child was only about three and a half years old (according to the police report) or even less than two years old (according to the child's own statement in court). The child's very young age, between two and three years when the incident occurred, makes us seriously doubt if they could understand how their mother got burn injuries and died." The court also observed that the child testified in court four years after the event. During that time, the child had been living with their mother's parents and brothers. The court believed that if the child had understood how their mother got the burn injuries, they would have certainly told their grandparents and uncles. However, none of these relatives said anything in court about the child telling them such details. The court decided that without any support from the relatives who cared for the child, it was hard to trust the child's statement. This statement was given for the first time in court after four years. The court also noted that it was possible the child was coached by their mother's parents or brothers to testify against the husband, especially once called to court. The court also thought that the child's testimony had many contradictions. The judges emphasized, "The child's statement is full of things that don't match and exaggerations. The witness's very young age when the event happened, and the fact that they didn't tell their grandparents or uncles about it (even though they lived with them for four years), raises serious doubts about their ability to truly understand what led to their mother's death. Because of this, it would be unsafe to rely on this witness to find the husband guilty." The judges further pointed out that if the child witness cannot be trusted, then there is no other clear proof to show how the woman got her burn injuries. The court also believed that the other details and conditions of the case do not completely remove the chance that the burns were accidental. Because of this, the court found the husband not guilty. The judges stated, "These weaknesses in the case against him leave a remaining uncertainty that the woman might have gotten accidental burn injuries. This would have caused her husband and mother-in-law to try everything to save her life. Given these points, I have decided to give the husband the benefit of the doubt and find him not guilty of the accusation against him."
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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 48444 of Case :- CRIMINAL MISC. BAIL APPLICATION No. - 49354 of Opposite Party :- State of U.P. Counsel for Applicant :- Harshit Pathak, Anurag Pathak 1. Since both the bail applications are connected and arisen from same case crime number, therefore, both the bail applications are being disposed off by a common order. 2. Heard Shri V.P. Srivastava, learned Senior Counsel assisted by Shri Satyendra Singh, learned counsel for the applicant (Vinay Kumar Tiwari), Shri Shyam Narayan Verma, Shri Anurag Pathak and Shri Harshit Pathak, learned counsel for the applicant (K.K. Sharma) and Shri Manish Goyal, learned Additional Advocate General assisted Tiwari and Shri Mayank Mishra, learned AGA, Shri Abhijeet Mukherjee, learned Brief Holder for the State and perused the record. 3. The present bail applications have been filed by the accused- applicants Vinay Kumar Tiwari and K.K. Sharma in Case Crime No. 0192 of 2020, under sections 147, 148, 149, 302, 307, 504, 506, 353, 332, 333, 396, 412, 120B, 34 IPC, section 7 of Criminal Law Amendment Act and section ¾ of Explosive Substances Act, P.S.- 4. In the year 1981, in Prem Chand (Paniwala) vs Union Of India, AIR 1981 SC 613, Justice V. R. Krishna Iyer opened the judgment with a question “Who will police the police?” About 40 years have passed, but, that question is still there with a bigger question mark. On the date of incident, the raid conducted by police force was countered by the gangster Vikas Dubey and member of his gang in a very planned way and 8 police personnels including Circle Officer of the area were brutally killed and several police personnels sustained serious firearms injuries. The accused persons were carrying sophisticated firearms and the accusation against the accused- applicants is that they were in collusion with the gangster and his associates. Under a conspiracy, they leaked information of police raid and gave them opportunity to remain in preparedness and did not render due support to police personnels nor informed the police force regarding their preparedness to effectively counter the raid and their being equipped with sophisticated firearms. 5. As per FIR version and police papers, the brief facts are that on 03.07.2020, at 1 AM in the midnight, the incident took place in respect of which on the same day in the early morning at 5:35 AM, the FIR was lodged in which 21 accused persons were named with 60 to 70 unnamed accused persons and the allegation was that an FIR was registered on 02.07.2020, Crime No. 191/20, under section 147, 148, 504, 323, 364, 342, 307 IPC and section 7 of Criminal Law Amendment Act, 1932 against Vikas Dubey, Sunil Kumar, Bal Govind, Shivam Dubey and Amar Dubey. In order to arrest the accused persons, with reference to GD No. 5 at 00:27 AM midnight, SO Vinay Kumar Tiwari with other SI and Constables keeping weapon and cartridges reached at Bela crossing, where, as planning CO Bilhaur Shri Devendra Kumar Mishra with other police officers along with Govt. Vehicle and Driver and SHO Bithoor, Shri Kaushalendra Pratap Singh with other police officers along with Government Vehicle and Driver and also SHO Shivrajpur, Shri Mahesh Yadav with SI and Constables (all mentioned in the FIR by name), after due consideration, set out from the place in search and arrest of the accused persons. Between the police parties of three police stations mentioned above, in view of fencing around the house of accused which is surrounded by big walls of adequate heights with barbed wire fencing and huge iron gates in different directions, it was decided that on reaching on the main gate in the leadership of CO Bilhour, the police will be divided into three teams. The first police team was led by CO Bilhour, the second by SHO Bithoor and the third by SO Chaubepur. The police teams and police officers ensured that there was no illegal article with them. Thereafter, the police party departed from Diwedi Atta Chakki to Bikru village and the moment they reached 20 meters close to the house of accused Vikas Dubey (now dead), it was found that on the road, a JCB machine was standing horizontally in such manner that the road was almost blocked. The police party anyhow, from the remaining space, managed to reach to the Tiraha close to the house gate of accused Vikas Dubey. The first police party lead by CO Bilhour stopped at the gate and the second party led by SO, Bithoor proceeded towards left side in east direction, and from the right side towards south direction the third police group led by SO Chaubeypur was proceeding. 6. All the police personnels were in police uniform except one Guard who was in civil dress. There was sufficient light of electricity and dragon light. Suddenly, from the room situating on the first floor on the north east side from the roof of Vikas Dubey, accused Vikas Dubey and other co-accused persons with rifle, pistol and firearms in their hands, in a preplanned way, with intention to kill the police personnels, opened fire shouting loudly how the police personnels dared to raid and nobody would escape alive from this place. Side by side, from the roof of Raja Ram alias Prem Kumar Pandey, situating in front of the house of accused Vikas Dubey, Prem Kumar Pandey and other accused persons Shyam Bajpai, Chhotu Shukla, Monu, Jahan Yadav and others, and from the roof of the house of Atul situating in the west of the house of accused Vikas Dubey, Atul Vishnu Pal Yadav, Ram Singh, Ramu Bajpai and other co-accused persons opened firing in a planned way with intention to kill the members of the police party. Because of this sudden and indiscriminate firing, most of the policemen of the first group and second group were seriously injured. Some of the members of police party after positioning themselves proceeded towards the house of Rajaram Pandey and some proceeded towards the open land of Pappu Mishra. At the same time when the police party was so proceeding, the accused persons from the roof of their house came down and started firing on already injured police personnel. The police party led by SO Caubeypur, because of indiscriminate firing, did not proceed further. There was no place to shelter and there was regular firing by the main accused persons from the roof. They, therefore, covered the firing in order to reach at a safe place. The accused persons coming from all sides surrounded the police personnel, fired and killed SI Anoop Kumar Singh Chawki in-charge Mandhana, Constable Jitendra Pal, Constable Bablu Kumar, Constable Rahul Kumar and Constable Sultan Singh by causing gunshot injuries. In the varanda of the house of accused Rajaram Pandey, SO Shivrajpur, Shri Mahesh Yadav and SI Nimbu Lal were also killed by the accused persons. CO Bilhour was dragged inside the house of Prem Kumar Pandy by accused Vikas Dubey, Prem Kumar Pandey, and Amar Dubey, Dubey, Balgovind, Bauwa Dubey, and other co-accused persons and was killed brutally by them by causing injuries by fire arms and sharp 7. Meanwhile, remaining members of first, second and third police party, in their self-defense, started firing and saved 7 police personnels including SO Bithour, Shri Kaushalendra Singh, SI Singh Sengar and took them to safe place. During the incident the accused persons looted the Govt. pistol of injured SO Bithour, but because of cover firing caused by the police party, the accused persons could not succeed in causing death of SO Bithour, Kaushalendra Singh. The accused persons looted the Government arms form the police personnels and absconded away. The alive policemen, in the light of electricity and other light, recognized the accused persons. Injured policemen were admitted in the Regency Hospital for their treatment. Thereafter, the police reached at the place of occurrence and found the dead body of the policemen lying there. 9MM pistol with 10 cartridges of SO Mahesh Chandra Yadav, 9MM pistol with 10 cartridges of SI Anoop Kumar Singh, AK-47 with 30 cartridges of Constable Jitendra Kumar, insas rifle with 20 round cartridges magazine of Constable Sultan Singh were already looted by the accused persons during incident. Besides the named accused persons, there were 60 to 70 more armed accused persons who in a very planned way, initially hiding themselves at a high place, with intention to kill the policemen, caused fire and subsequently, they jumped down from the roof and from very close range they committed brutal murder of the policemen. The policemen also fired, but, because of this incident and indiscriminate and daring firing by the accused persons, a situation of lawlessness and sense of fear was created. The accused persons were led by accused Vikas Dubey was a known gangster and history sheeter of the area and there remained fear and terror of the gangster and his gang around the vicinity. Because of the criminal activities, the gang had gained a lot of movable and immovable properties. The police inspected the place of occurrence where cartridges were scattered here and there and the sign of firing was also present on the walls around and other places. Human blood was also scattered all over the place. On this basis, the FIR was lodged by SO Vinay Kumar Tiwari, who is presently one of the accused applicants. 8. The statement of informant was recorded by the Investigating Officer. The dead bodies were also taken into possession, inquest report was prepared, dead bodies were sealed and were sent for postmortem. The statement of SI Azhar Ishrat was recorded on the same day who stated in accordance with the FIR version. Thereafter, the statement of SI Vishwanath Mishra, P.S. Chaubepur, was also recorded who also stated to the tune of FIR and had additionally stated that from the roof of the house of the Vikas Dubey some women were loudly shouting that no police personnel should escape today and they were instigating the accused persons to kill the policemen. These women were Smt. Chhama, Smt. Khushi, Smt. Rekha Agnihotri, a maid of accused Vikas Dubey who used to live in the house of accused Vikas Dubey and she was also involved in his criminal activities. 9. Thereafter, SO Vinay Kumar Tiwari was suspended by order dated 4th July, 2020 of SSP, Kanpur Nagar on account of his inaction, suspicious role and for not apprising the police force about the kind and quality of weapon accused Vikas Dubey and the members of his gang were keeping, nor he apprised about the way to get away from the place of occurrence. It was also found that when the firing started from the side of accused persons, the applicant did not lead his team and escaped from the place. Because the police personnels were not having any knowledge about the way to get away from the place, a number of them were killed and in a great number sustained injuries. 10. The IO recorded the statement of constable Rajeev Kumar who stated to the tune of SI Vishwanath Mishra and further added that SI Krishna Kumar Sharma and SO Vinay Kumar Tiwari of the police station were closely related with accused Vikas Dubey and prior to the incident, SI Krishna Kumar Sharma talked with Vikas Dubey for 20 minutes on mobile. He has also stated that these police officers (accused-applicants) were conspired with accused Vikas Dubey to humiliate and give lesson to CO Bilhour out of jealous and bad 11. Statement of constable Abhishek Kumar was also recorded and he also stated that SI Krishna Kumar Sharma and SO Vinay Kumar Tiwari were closely related with accused Vikas Dubey. He has also supported the statement of Constable Rajeev Kumar on that point. Statement of co-accused Suresh Verma was also recorded and he also stated in similar fashion showing the closeness of these two with accused Vikas Dubey and the prior talk with SI Krishna Kumar Sharma with him just before 20 minutes from the time of incident. 12. SI Azhar Ishrat was again examined by the IO, and despite that he supported the FIR version, he also stated about the involvement of the women who instigated the accused persons for commission of the offence and said that he saw Sanjay Dubey @ Sanju who was firing on the police party who was known to him because he used to come to the police station regularly. Co-accused Suresh Verma was also instigating the other accused persons. On being asked by the IO, he stated that SI K.K. Sharma was not present there during the raid who was present in the police station but deliberately did not join the raid. He was asked to join but he avoided. He had already given information about the raid much before the time of incident to gangster Vikas Dubey with whom he was closely related. He has also stated that he knew the accused persons with name because he is posted in the police station from the last about 3 years and he had gone to the village of Vikas Dubey several times in respect of his official duty and Vikas Dubey and his other associates were well known to him. He saw and recognized the accused persons in the solar light which is installed at the main gate of Vikas Dubey and also in the light on the roof of the house of Vikas Dubey, Prabhat Dubey, identified the other accused persons going from the side of house of Agar Dubey to the house of Vikas Dubey. The witness has stated that he also fired 7 times but realizing that by firing his location will be exposed, he stopped firing and concealed himself in the veranda of the neighbour of the Prabhat Mishra. Constable Navneet also concealed himself there. Thereafter there was power cut and Prabhat Mishra who was firing from his roof came down with his rifle and seeing them, he fired on Constable Navneet but because the witness intervened by slapping on the but of rifle, constable Navneet escaped and thereafter he and constable Navneet, because they were fully acquainted with the geographical situation, through the field, came to the road. The JCB driver was Rahul Pal and not Monu as he had stated earlier. He has named the accused persons who fired on the members of the police party. 13. Subsequent statement of SI Vishwanath Mishra was recorded and he has given detailed statement and besides that he supported the FIR version, he has also stated that the accused persons were firing from the roof of Prabhat Mishra. He has stated that Vikas Dubey was a known criminal and, in the area, he used to possess and grab lands of others with the help of police. He used to create terror and organize gambling. SO Vinay Kumar Tiwari was in his contact through SI K.K. Sharma and they used to regularly associate with them. This came in the knowledge of CO Bilhour and he had submitted adverse report about them to the superior authority. On the date of incident, K.K. Sharma deliberately avoided in participating in the raid and during the period he was regularly in touch with the accused persons. He and SO Vinay Kumar Tiwari just to lower down the image of CO Bilhour, conspired with the criminals and consequently 8 police persons were killed and 7 police persons sustained serious injuries. 14. SI Ajhar Ishrat was re-examined by IO and he also stated that the accused persons were well informed about the raid which is also clear from electronic surveillance and other evidence. The relationship between SO Chaubepur and Circle Officer was bad and the CO had sent adverse report regarding misconduct of SO Vinay Kumar Tiwari to superior officer. He stated that SI K.K. Sharma and SO Vinay Kumar Tiwari were in contact with accused Vikas Dubey and used to regularly associate with him and therefore, the accused persons succeeded in causing such a horrible incident only because SI K.K. Sharma and SO Vinay Kumar Tiwari leaked the information about raid to them. He has also stated that he recognized the accused persons in the road light and accused persons were also lighting torch from their roof and were shouting. 15. Certain call details have been also annexed at page 156 and onward showing that accused-applicant K.K. Sharma had talked with the gangster and his gangmen. The learned counsels for the applicants have contended that constable Rajeev Kumar was also in touch with Vikas Dubey. The audio conversation of Constable Rajeev Kumar with Vikas Dubey has also been annexed to show that he was in regular touch with Vikas Dubey and he has not been made accused. Constable Rajeev Kumar has been subsequently examined and he has stated that Vikas Dubey was having prior knowledge of the police raid and he rang him on mobile phone but, being occupied in work, he could not pick up the same and when he saw that there was miss call of Vikas Dubey, he dialed him and Vikas Dubey gave a lot of threatening and abuse and threatened that he will kill all the police personnels who will be found on the police jeep and he would commit such a big offence which will be unprecedented. The witness has stated that he recorded the phone call and told about this threatening to Vinay Tiwari, SO, Chaubepur and also said that the gangster has prior information of police raid, but, SO Vinay Tiwari ignored and did not take him seriously. He was also accompanying SO Vinay Tiwari during the raid. He recognized most of the accused persons. He has stated that Chhama Dubey, Khushi Dubey and Shanti Devi from the roof of Atul Dubey were disclosing the location of police personnels to the accused persons and were instigating them to kill the policemen. The accused persons continued firing from 1 AM in the night for 30 to 35 minutes. 16. From the description above, it is clear that 8 police personnel including the Circle Officer were brutally murdered by the accused persons and 7 police personnel sustained serious injuries. The accused persons who were named in the FIR with 60-70 more accused persons constituted unlawful assembly with firearms and deadly weapons killed eight police personnels in a brutal way and injured the police personnel very badly by causing firearm injuries. Some of the police personnels were killed and part of their limbs was also separated from body. The police witnesses who were one time colleagues of the accused applicants have given statement that the accused applicants were very close to gangster Vikas Dubey and his gangmen and they leaked the information of raid which gave opportunity to the accused persons to prepare and plan the brutal murder of the police personnels. 17. Submission of the learned Senior counsel for accused applicant Vinay Tiwari is that there is no direct or indirect evidence against him. It was a police raid conducted by the police party which was countered by the main accused persons and in the incident 8 police persons were killed by gunshot injuries and 7 policemen also sustained gunshot injuries. The accused applicant was himself leading one of the police party. He himself lodged the FIR against the main accused persons and he also lodged FIR on the basis of information given by Rahul Tiwari implicating them. Therefore, it has been submitted that there is no question of the accused-applicant being involved in the commission of the offence. He has no motive nor there was any reason for him to enter into so called conspiracy which resulted in such a heinous crime. Further submission is that the witnesses have changed their version when they were subsequently examined by IO and all of them in a tutored way have stated about the closeness of the accused-applicants with gangster Vikas Dubey and his gang. There is no substantial evidence and there is only some scattered evidence against the accused applicants which is insufficient for the accusation of criminal conspiracy. Nothing can be concluded against them on the basis of CDR, particularly against SO Vinay Tiwari who never made any communication on mobile with either Vikas Dubey or his gangmen. There is no such CDR collected by the Investigating Officer. 18. It has been further submitted that the applicants have been falsely implicated. Late CO Devendra Mishra was informed about the incident of Rahul Tiwari who directed him not to make entry in GD as the police is going to take stern action and this will alert gangster Vikas Dubey. The policemen including CO Devendra Kumar Mishra were posted there for much longer period and were well-versed with history sheeter Vikas Dubey. The accused-applicants had no cordial relation with them. The said viral letter of CO indicating close relation is forged and has been obtained from social media. No such letter was sent by CO Mishra to SP, Kanpur Nagar nor the applicant was put to any departmental proceeding nor any explanation was asked from him. It has also not been mentioned in his suspension order. The allegations regarding his conduct during raid are vague, imaginary and false and is not supported by any evidence. 19. On the contrary, the learned additional Advocate General Shri Manish Goyal has argued that it is not a case of simple crime and the crime has been committed because the police assisted the gangster and leaked the information with regard to raid and, because of the prior information about the raid, the gangster was in preparedness and he planned the murder of the policemen and it is why so many accused persons assembled with the main accused and were active at the time of raid. They were inhabitants of area falling within the same police station in which house of the gangster situated and where the incident took place. Being the member of police force and working at the local police station, the accused-applicants had enough information about the geographical situation and path ways around the vicinity. The police force reached to the place of gangster and could not get away from the place as the accused applicants did not render support nor cooperated and remained inactive. The role of SI K.K. Sharma is rather evident in view of the fact that he was regularly in touch with Vikas Dubey and his gang and through him SO Vinay Tiwari was also in his touch. Both the accused applicants certainly helped them and always closed their eyes towards the criminal activities of the gang. They, during the incident, maintained distance from the other police party and went away to save themselves. In case of such an organized crime where members of police force were assisting the gangster and his group, it is not possible to have a direct evidence. Moreover, in a case of conspiracy, there is no possibility of direct evidence. The evidence which can be available is only circumstantial in nature and may be in the form of inaction on the part of the accused applicants who, in their endeavor to assist the accused persons, kept themselves out from the picture. Therefore, the conclusion of conspiracy is to be drawn from the circumstances of the case and the situation that the applicants, being member of police force, were indulged in assisting gangster Vikas Dubey and his gang, and all the paper work was done by them. It has been submitted that the IO examined several witnesses of police force who worked with the accused applicants and they have stated about conspiracy and their close links with the gangster and his gang. 20. Moreover, it has been also pointed out on behalf of the State that, on being arrested, gangster Vikas Dubey gave statement to the IO revealing that the accused applicants used to give prior information of police activities and on the date of incident also he was informed about the police raid. The gangster is dead and his statement given to police is legally admissible as the same is statement of a dead man. Therefore, it has been submitted that taking into consideration over all circumstances, the culpability is writ large and the accused applicants do not deserve to be released on bail. 21. This case raises certain serious questions which relate to administration of criminal justice system in the country with reference to organized crime and criminals and the role and efficiency of police force in combating the problem. The police force is one of the most important force with great potential, easily approachable to the people facing criminal wrong and law and order problem and the most visible component of the criminal justice system. Like other departments, there has been a general fall and deterioration in the standard of functioning of the police force also. With time, it has been seen that the police force, not as a whole, but in small groups, has gone through a phase of moral and professional deterioration. There are black sheep also in the police force and they reflect upon the whole department which has led to growing concern, and a number of attempts have been made to mend this situation. In this direction, the past few years have been particularly eventful, with a number of positive developments having taken place towards a solution of the problem and the state appears to have observed zero tolerance policy towards organized crime and criminals. Strict and rigorous steps have been taken to break and demolish financial network of gangsters. In future, this shall certainly bring about more and more positive results towards restricting criminal activities and organized crime. 22. Organized crime is not confined to a single state, or any one country and has become an international problem in view of their wide spread network and sometimes they have been also found to be a natural ally of terrorist groups. Organized crime is an act of threat involving murder, kidnapping, gambling, arson, robbery, burglary, extortion or dealing in narcotics or dangerous drugs and other crime. The basic features of organized crime involves a group of individuals that is structured, sophisticated and widely spread across nations; it is a section of society that seeks to operate outside control of the people and government and it is a self-perpetuating, continuing criminal conspiracy for profit and power, using fear and corruption and seeking protection from law. The focus areas of organized crime are smuggling, drug trafficking, women and child trafficking, arms trade, hawala, circulation of fake currency, extortion and contract killing. With financial solidarity, these criminals have entered into business of film financing, hotel business, house building, government contracts and the like. The gangsters are divided into three categories, namely, sharp shooters, money collectors and liaison agents. The liaison agents deal with lawyers and law enforcement officials to resolve legal problems and to ensure easy bail to gangsters. (For details see S M Sharma The Organized Crime in India, Tokyo: United Nations Asia and Far East Institute (UNAFEI), 1999, Vol. 54, pp 23. The police force faces some real difficulty in combating with organized crime and criminal activities. The police personnels are mostly not provided with that kind of sophisticated arms which are available in plenty to the gangsters and their gang members. The police stations are mostly under-manned and the strength of police force is remarkably less in comparison to the population. The police has to act in accordance with legal norms and while acting so, they are required to avoid any excesses and human rights violation. They have to behave like a disciplined force actuated to uphold rule of law and motivated by sense of public security and service. The force also face the problem of some police personnels who may be close and in collusion with the local mafia. They can leak the confidential informations and strategy of police for taking action and conducting raid to arrest the gangsters. On the contrary, the organized criminals keep with them all kinds of sophisticated weapons, they use the same indiscriminately and they can cause any amount of damage to the human life and property. Where they are having support from some members of police force, their potential to execute criminal act is adequately enhanced. 24. The problems of police force has been time and again highlighted by several Law Commissions appointed for making recommendations for police reforms and needless to point out that several recommendations have been suggested from time to time. It is pertinent to mention that the Supreme Court has also issued directions in view of recommendations in some of the judgments such as Vineet Narain v Union of India, AIR 1998 SC 889 and Prakash Singh v Union of India, (2006) 8 SCC 1. Professor M P Singh, in his book Police Problems and Dilemmas in India 10 (1989) has discussed the fundamental complexities of Indian police system and has remarked that the police in the country faces tremendous challenges and works under extreme pressure due to a number of reasons such as growing unemployment, deterioration in educational environments, conflicting claims of socio-economic components, fluctuations in political order, rampant corruption etc. Frequent transfers to unfavorable positions or locations have demoralizing effects on the police force and it becomes a survival technique for police to have close relationship with one or other political person. 25. The purpose of the above discussion is to show the prevalent conditions in which the police has to perform the complicated and difficult job of ensuring law and order, maintaining security and peace, preventing crime and taking action against and causing arrest of offenders. These all require home work and team work and if any member of police force starts giving clues about and leak the police strategy, the strategies are bound to fail and shall certainly result sometimes, particularly when police is confronting against organized crime and criminals, in disastrous situation as has resulted in this case. In such situation, policing such police personnels is a big task and it requires early identification of such black sheep, monitoring of their conduct, isolating them and taking immediate strict disciplinary action against them. 26. Now coming to the facts of this case. The accusation against the accused-applicants is that they had close friendly relationship with the gangster Vikas Dubey who and the members of his gang were running organized criminal activities of all sorts and was residing and flourishing within the local jurisdiction of the police station in which both the applicants were posted. IO has examined several witnesses and they have stated about the close relationship of the applicants with the gangster Vikas Dubey and gang. Submission of the learned senior counsel and other counsel for the the applicants is that the witnesses have stated against the applicants only when they have been examined subsequently on second and third time and their subsequent statement is after thought to meet the case against the applicants. Otherwise, the witnesses had not stated anything against the applicants. 27. It is pertinent to mention that gangster Vikas Dubey was arrested in Ujjain and while he was being brought to Kanpur Nagar, the Investigating Officer took his statement. On the way, the police vehicle suffered accident. Vikas Dubey snatched the pistol of IO and attempted to run away from the police custody. He opened fire on police personnels and by police firing in self-defense, he was shot dead. The IO got hospitalized and after being discharged, he wrote the said statement of Vikas Dubey in CD. Some of the part of his statement has been also quoted in the bail application. In brief, Vikash Dubey, giving detailed description of the incident, has stated to the IO that on 2/3.07.2020, he had prior information of police raid at about 04:00 PM and the information was given by SI K.K. Sharma. The JCB of Sultaan Ahmad was working there from the last one and half months and in the night at about 12:00 PM, he called upon driver Rahul Pal with JCB and he got obstructed the road by JCB so that the police suddenly might not come to his house. He further stated that one Rahul Tiwari was harassing him by giving false complaints against him and the police was also supporting him. Therefore, hatred was generated in him towards the police and he had decided that he might be killed but he will give lesson and kill as many as police personnels as he can. He called his associates Raja Ram @ Prem Kumar (maternal brother), Shashi Kant, Shyamu Vajpayee, Chotu Yadav and Balloo Musalmaan. Licence holders came with their arms and to the remaining persons, he provided guns, country made pistols and cartridges. CO, Bilhaur, Devendra Mishra was behind him and, therefore, he was brutally killed. He was having animosity with SO, Shivrajpur also as in February, 2020, in the election in Kota, his nephew Aman Tiwari was contesting election and SO Shivrajpur got his man arrested with illegal pistol whereupon he felt very humiliated. His close companions were on the roof with arms and he had made planning on every pathway coming to his house to kill the police personnels. Fortunately, the police force came from the way on which J.C.B. was planted and it made the task very easy and they surrounded the police officials and killed them. When there was power cut, he used code words which was a signal to run away from the place. He had also intended to kill his distant associates in order to implicate the police force but this could not happen. The women of his family and close to him such as Rekha Agnihotri, Kshama, Khushi, Shanti Devi were told to cry seeing the police personnel as “thief-thief”. Manu Pandey was also having the knowledge of planning. Thereafter, with the help of his close associates, he went to 28. Submission, in this respect, from the side of accused-applicants has been two fold- that the statement of Vikas Dubey is not relevant against accused-applicants as he was the prime accused in the FIR and secondly, he did not state any thing against SO Vinay Tiwari and has only taken the name of SI K K Sharma. From the side of State, it has been contended that the statement of Vikas Dubey is statement of a dead man and it has legal effect under section 32(3) of the Indian Evidence Act. Moreover, other witnesses have stated that SO Vinay Tiwari was very much close to Vikas Dubey through SI K K Sharma and therefore, the statement can be well considered against both the applicants. Section 32(3) provides as follows: “32 Cases in which statement of relevant fact by person who is dead or cannot be found, etc, is relevant. — Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:—(3) or against interest of maker. —When the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages.” 29. It is clear from the reading of section 32(3) that statement of a dead man has been legally recognized and used in evidence even though the same does not relate to the cause of his death. Although, a final view is not required to be expressed at this stage as the same will be considered by the trial court, yet, this much is clear that the statement is of a dead man and the same has legal relevance in view of the provision of the Evidence Act. 30. CDR has been annexed with the bail application at page 156 to 163 to show the relationship of accused-applicants with the gangster. On the basis of study of CDR, the IO has noted that on the date of incident, prior to incident, the accused persons contacted each other and this call pattern is exceptional in the last one month as this type of communication between them is unique; the CDR of the mobile number of Vikas Dubey shows that his location was in Village Bikaru where the incident took place; between Vikas Dubey and co-accused persons of his gang, there is 15 calls by the gangster, again a unique pattern, by which he talked to the co-accused persons which indicates that he was preparing for the incident; Vikas Dubey talked with one police personnel Rajiv Kumar prior to incident which is full of abusive language and threatening to kill police personnels and of committing big criminal incident; it further indicates that he was having prior information of police raid and he was in full preparedness to commit the offence and kill police personnels as many as he can; and call details also show that between co-accused Ramsingh and applicant K.K. Sharma, there were two calls and the location was in Village Bikaru, and as such by the mobile of Ramsingh, Vikas Dubey was in contact before and during the incident. The accusation is that the accused-applicants, particularly accused-applicant K.K. Sharma, were giving information to the gangster and were working as agent to the aid and assistance of the gangster and it is why accused K.K. Sharma kept himself in the police station deliberately and both the accused-applicants had conspired with Vikas Dubey and gang as it was not possible for the accused-applicant Vinay Kumar Tiwari to contact the gangster at the time or during the incident. 31. The learned Senior Counsel for the accused-applicant Vinay Kumar Tiwari has submitted that constable Rajiv himself had also contacted on mobile with Vikas Dubey and as such he should have been also made accused on the basis of the analogy put forward by the State. Moreover, there appears to be no such communication by applicant Vinay Kumar Tiwari with the gangster or his gang-men. The statement of constable Rajiv however shows that he found a miss call of Vikas Dubey and he called back to him. In respect of second argument, it has been submitted by State that applicant Vinay Tiwari used to be in contact with the gangster through K.K. Sharma. Whatever the truth may be, this much is clear that the accused- applicants who were posted in the same police station could not have any professional relationship with the gangster and his men and communication on mobile with him is certainly a relevant circumstance which can be considered during trial. 32. From the side of the State it has been also pointed out that the incident took place in the notified area under the UP Dacoity Affected Area Act and due attention is required to be given to the law provided under section 10 of the Act. The relevant part of Section 10 is as Notwithstanding anything contained in the Code of convicted of a scheduled offence shall, if in custody, be (a) the prosecution has been given an opportunity to (b) where the prosecution opposes the application for bail, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence:.......” Submission is that after investigation, finding sufficient evidence, charge-sheet has been already submitted by police and at this stage there is no reason to believe that the accused- applicants are 33. From the side of accused-applicants, it has been pointed out that the witnesses examined by the IO initially did not state any thing against the accused-applicants and only in their second and third statements, they have started making allegations against them. As such, their subsequent statement is nothing but an after thought in order to falsely implicate the accused-applicants. It has been specifically mentioned that the allegations have been made by the witnesses mostly in the last part of their statements and a reading thereof shows that the words and expressions used are same and similar which is not possible if statements have been given by the witnesses individually and separately. This contention appears to have no weight as it has been rightly pointed out on behalf of the State that all the statements are part of CD and a view at this stage has to be taken after due consideration to all the material on record. 34. The bail applications have been also opposed on behalf of State on the ground that applicants are police officers and they are in a position to influence the witnesses if they are released on bail. They hatched conspiracy with the gangster and deliberately acted in such a manner which helped the gang in the commission of this offence. It has been submitted that in the counter affidavit dated 25.1.2021, in order to save skin, accused-applicant Vinay Tiwari set up a false case that while he was on patrolling duty on 2.7.2020, he saw Vikas Dubey and his gang-men beating one Rahul Tiwari and while he confronted him, Vikas Dubey pointed his rifle on him and to save himself, he came back and convinced Rahul Tiwari to lodge FIR against Vikas Dubey. The falsity of this version is clear from the two facts, one, this has not been mentioned by the accused-applicant in the relevant GD, and two, this fact has been nowhere mentioned in the FIR of Rahul Tiwari nor it has been mentioned therein that he saved the informant during the said incident. Further submission is that applicant Vinay Kumar Tiwari himself lodged FIR and all papers were either prepared by him or on his direction, and he made all efforts to save his skin and after the applicants were made accused in this case, during investigation, incriminatory things have been revealed against them. 35. Further submission is that the applicant as SHO of concerned police station was very much aware about the activities of Vikas Dubey and was having healthy relation with him. The then Circle officer Sri Devendra Mishra (deceased) had also made a complaint against the working of the applicant highlighting his close relationship with gangster Vikas Dubey. On the date of incident, the raid was planned which is clear from GD entry of 03.07.2020 of 12:27 AM in the mid night about movement of the police team. When the police team reached near the house of accused Vikas Dubey led by Circle Officer, Bilhaur, late Sri Devendra Mishra and SO Shivraj Pur, SHO Bithoor, the applicant requested to be the part of third team and convinced CO, Bilhaur to lead the main team and to enter from the main gate and while the team of CO proceeded towards the gate, they found that a JCB had blocked the main gate and a narrow passage was left there. Anyhow, when they reached close to the gate, suddenly from all the three sides, indiscriminate firing was started from the side of the gangster and his associates. The accused- applicant as per plan had to conduct raid from the right side. But neither he proceeded towards the right side nor he provided any help to the other teams. As such, the conduct of the accused-applicant shows that he was having knowledge of the plan of Vikas Dubey and he was also aware about the topography of the place and he knowingly avoided to lead the team which raided from the main gate and on account of conspiracy, the accused-applicant did not provide necessary information. 36. All the aforesaid contentions relate to one or other circumstance and they will be examined during trial and, therefore, it is not desirable to express any final opinion. The fact is that in the incident, CO Devendra Mishra, SHO Mahesh Kumar Yadav, two Sub Inspectors Anoop Kumar Singh, Nebulal and four Constables Jitendra Kumar, Sultan Singh, Rahul Kumar and Babloo Kumar were brutally murdered and seven police personnels SI Kaushalendra Pratap Singh, SI Sudhakar Pandey, Home Guard Jairam Katiyar, constables Ajay Singh Sengar, Shiv Murat Nishad and Ajay Kumar Kashyap received gun shot injuries and one person also received injury. Perusal of injuries found on the dead bodies shows that several gunshot injuries were caused to them and it was ensured that they could not survive. The gunshot injuries of all the deceased police personnels affirm that injuries were caused from close range as blackening and charring has been found. This also shows intention and knowledge in causing death and extreme culpability on the part of the main accused 37. At no point of time, applicant Vinay Tiwari along with the members of his team responded to provide any backup to the team. While the members of other two teams, late Sri Devendra Mishra, late Sri Mahesh Chandra Yadav and late Nabu Lal, Sub Inspector and from second team SHO Bithur Kaushlendra Singh sustained fire arm injury and from his team five other police personnels including Sub Inspector Anoop Kumar were shot dead, only two persons from the team of accused-applicant sustained injuries who, as submitted, by default joined the first team at the time of firing. The accused- applicant did not receive any injury and this also shows that he avoided active participation in the raid. The accused-applicant deliberately concealed the availability of automatic weapons with gangster Vikas Dubey and also concealed the incident which took place at the time of alleged saving of Rahul Tiwari. For this lapse and misconduct, the accused-applicant was suspended. 38. During the course of investigation, several witnesses present at the time of incident have stated that the accused-applicants were having cordial relationship with accused Vikash Dubey. Constable Rajeev Kumar who was the fellow of applicant Vinay Tiwari has in his first statement stated that the applicant Vinay Tiwari, co-accused Sub Inspector K.K Sharma were having cordial relationship with gangster Vikash Dubey. Constable Abhishek Kumar and others have also stated the same facts. The call details show that Sub Inspector K.K. Sharma on 02.07.2020 made several calls to the gangster and informed them about the raid as he talked with the accused for more than 20 minutes in different calls. There is enough evidence on record to show that the accused-applicants were having very good relationship and soft corner towards Vikas Dubey. This fact has also been stated by accused Kshama and Rekha Agnihotri in their 39. The witnesses have stated that Sub Inspector K.K. Sharma was regularly in touch with the main accused and was regularly informing him about the movement of police team. The call details of K.K. Sharma sufficiently demonstrate his involvement in the crime. Moreover, Applicant Vinay Kumar Tiwari was having jealous and bad relation with Circle Officer Devendra Mishra and it is why he was convinced by accused-applicant to lead from the main gate as a result of which 8 police personnels were killed and 7 policemen received gunshot injuries. After investigation, sufficient credible evidence was found against the accused-applicants showing their involvement in the whole criminal conspiracy which led to the commission of such a horrendous crime. They conspired with gangster Vikas Dubey, leaked confidential information about the raid and facilitated the gangster and his gang to commit such a crime which resulted in death of 8 police officers. The enmity and bad relation of accused-applicant with Circle Officer Devendra Mishra is very much evident and the Investigating Officer has taken note of the viral letter in his CD in which Circle Officer Devendra Mishra had intimated to higher authorities that integrity of Vinay Tiwary was completely doubtful and he was regularly meeting with Vikas Dubey and was communicating with him. It was also complained that if Vinay Tiwari does not modify his conduct, any time some serious incident can take place. With the CD, the report of Sri Devendra Mishra, Circle Officer has been annexed by the accused-applicant in his rejoinder affidavit dated 22.02.2021. At this stage, it cannot be ruled that the said letter of Devendra Mishra is fake as contended on behalf of accused-applicants. 40. It has been also argued from the side of accused-applicants that investigation has been completed and charge-sheet has been already filed in this matter. The applicants are in jail from the last more than one year. Their pretrial detention for such a long period is resulting in deprivation of their right to liberty and freedom. The learned counsel for applicant K.K. Sharma, has relied on the judgments of Dalvir Hussain v State of Gujarat, AIR 1991 SC 56, Pawan Kumar v State of UP, 2015(90) ACC 9 (SC), Mukesh Kumar Kashyap v State of Uttarakhand, 2015(89) ACC 903, State of UP v Rajju, 2005(53) ACC 343, and K R Purushothaman v State of Kerla, 2006(54) ACC 255(SC). Therefore, it has been requested that, taking into consideration overall circumstances and the long period to which they are in jail, the court should take sympathetic view and the applicants should be released on bail. 41. This court is not oblivious about the fact that the release on bail is crucial to the accused as the consequences of pretrial detention are grave. If release on bail is denied to the accused, it would mean that though he is presumed to be innocent till the guilt is proved beyond reasonable doubt, he would be subjected to the psychological and physical deprivations of jail life. The jailed accused loses his job and is prevented from contributing effectively to the preparation of his defence. Equally important, the burden of his detention frequently falls heavily on the innocent members of his family. But, if the accused is involved in a conspiracy for commission of a heinous offence by a hardened criminal, his release on bail will give him an opportunity to abscond or temper with witnesses. Against such crime, social reaction is also sharp. Therefore, a balance between the need for protection of individual liberty which is so important and the requirements of the society for being shielded from the hazards of being exposed to the misadventures of organized crime has to be 42. The criminal justice system is often criticized for its pro-active approach towards the accused. The rights of the accused are protected not only during trial but also during investigation and even after the delivery of judgment, more particularly when the case has resulted in conviction. The accused cannot be kept in police custody unless with the order of Magistrate and that too is possible only within first fifteen days of his arrest. The bail provisions are liberal and for arresting the accused there must be prima facie evidence collected by the Investigation Officer. He can also be released on anticipatory bail. The accused cannot be put to cruel or inhuman treatment at any stage. There is a strong presumption of innocence in favor of accused and consequently, it creates a heavy burden on prosecution to establish the guilt beyond any shadow of reasonable doubt. The accused has been given constitutional protection against self incrimination and he has right to keep silence throughout and his silence will not be taken adversely against him. Moreover, he enjoys all the rights associated with his fair trial claim including free legal aid and impartial justice delivery. Thus, protection of rights of accused is natural feature of democracy which is accorded for the simple reason that the criminal law machinery is controlled by the State. Accused is given free food, free lodging, free clothes etc. and if he has been directed to undergo rigorous imprisonment, he will have to be paid by the state for the work he has rendered during jail life. But, the victim who is the most adversely affected person by the criminal incident has no such claim. The guilty man is lodged, fed, clothed, entertained and educated by the state at the expense of the public, but ironically, the victim is left to pay for even his medical expenses which may be the result of that criminal event. There is no free education, free housing, free clothing and free food for the victim. The injured party, in the criminal law, often takes a back seat and after being examined in court as witness, he stands aside waiting and watching the criminal justice in action satisfied by conviction and sentence. He is fortunate if he gets a little compensation or even expenses of the litigation. The administration of criminal justice inspired and dominated by human rights and humanitarian causes does every effort to reform, treat and rehabilitate the offender, but does not show equal concern for the poor victim who has suffered loss or injury. ( See for details Stephen Schafer, Restitution to victim of crime, Stevens & Sons Ltd., London (1960) p. VII as quoted by Bharat C. Das, Victims in the criminal justice S.V. Joga Rao, Victim Restitution, the Lawyer, June 1990, p. 17 and Proff. A. Lakshminath & Dr. J. Krishnakumari, Criminal Trial and 43. Crime, corruption and population are three major problems the society is facing at present. While against crime and corruption, particularly when it is organized crime and corruption, strict state action and intervention is necessary to restrict and minimize the same to maximum extent, control over population growth requires legal steps and strategy inclusive of motivation, spread of education and awareness and some positive incentive to those who opt for family planning. Against crime and corruption, the State must continue with the policy of zero tolerance. The political parties should rise above board against crime and corruption without being influenced by consideration of “his man” and “our man” as this approach will not only undermine rule of law but will also damage the democratic set up of the nation. 44. This is not an unknown phenomenon that there are policemen, may be very few in numbers, who show their loyalty more to such gangster than to their department for the reasons best known to them. Such policemen tarnish the image, name and fame of police and it is necessary that suspicious police personnels should be taken to task and their conduct should be regularly monitored for which a mechanism should be evolved, and if it exists already, the same should be geared up at different levels. There is a concerning trend that one or other political party welcomes gangsters and criminals involved in organized crime in the party and try to back and protect them, painting and spreading an imaginary image of Robinhood. They are given tickets to contest elections and sometimes they win also. This trend needs to be stopped as soon as possible. All the political parties should sit and together a decision is required to be taken by them that gangsters and criminals will be discouraged in politics and no political party will give ticket to them in public elections. The political parties should rise to the occasion and must guide themselves keeping in view that there cannot be a concept of “my criminal” and “his criminal” or “my man” and “his man,” as a gangster is gangster only and is required to be condemned from all corners and even people/voters should also take note of it while making their choice for a candidate in a general election. We must have the idea in mind that if we are entrusted with responsibility of nation building, our responsibility is to think about the future generation to whom we have to handover a legacy. We need to ponder what kind of nation and society we want to leave for our future generation. A sooner decision is necessary lest one day these gangsters and criminals will become “Bhasmasur” and will give such serious dent to the country and democratic set up which cannot be 45. The pursuit of life, liberty and peace includes freedom from crime. The State’s foremost duty is to provide these basic rights to each citizen. The success of a Criminal Justice System can only be measured by how successful it is in ensuring these rights in word and spirit. The extent to which these rights are successfully protected, will be reflected in the confidence of the public in the system. The organized crime should be treated differently from traditional individual criminality. Conspiracy is an integral aspect of organized crime. There cannot be a direct evidence of conspiracy in such cases and the law has to deal with organized crime on a footing different from that of individual or conventional crime, as regards admissibility and appreciation of the evidence. 46. The discussion aforesaid certainly goes to show that the nature of offence and amount of culpability is serious, heinous, shocking and unprecedented. It is also evident that the main accused persons had prior information of the police raid and naturally, in the present set of facts, this information was revealed by police which not only made the main accused persons alert but also provided them fullest opportunity to prepare for attack and commit such a horrendous crime in which 8 police personnels including the Circle Officer sustained gunshot injuries and died. The situation of crime was such and so sudden that the police force could not get opportunity to sustain and counter and could do nothing. The accusation against the accused-applicants is that they conspired with the main accused for the commission of the offence because of their good relationship and loyalty with main accused and also they wanted to score their personal grudge with the Circle Officer. It is not possible to give a final opinion at this stage. Certain witnesses who were part of the police raid have given evidence against the accused-applicants showing their closeness with the main accused persons which is supported by circumstances such as the magnitude of the crime and the preparedness on the part of gangster Vikas Dubey and his associates; the statement of Vikas Dubey given to the IO before his death that he had prior information about the raid; the conduct of the accused-applicants before and during incident; applicant Vinay Kumar Tiwari though leading one team but did not give any backup support nor sustained any injury and showed complete inaction; and applicant K K Sharma deliberately avoided in participating in raid and the accusation is that he stayed and was deliberately left on police station to pass information to the gangster. 47. In view of the above discussion, the serious and heinous nature of the offence, complicity of the accused-applicants in the conspiracy and taking into consideration overall circumstances of the case, I do not find any reason sufficient to allow the bail applications. Hence, the bail applications of accused-applicants Vinay Kumar Tiwari and K. K. Sharma are rejected. 48. The learned trial court to expedite the trial. If the case is not disposed nor a substantial development is found towards progress of trial in one year, the accused-applicants will be at liberty to move fresh bail application. 49. It is also made clear that no observation of this Court in this order will have any binding effect on the trial court and the case shall be decided on the basis of evidence adduced during trial.
The Allahabad High Court today refused to let two police officers from Uttar Pradesh out of jail. These officers, SO Vinay Kumar Tiwari and Beat Officer Krishna Kumar Sharma, are accused of planning a crime. This is connected to a surprise attack in Bikru village on July 3, 2020. In that attack, eight policemen were shot and killed by the criminal Vikas Dubey. The Court began by recalling a famous question asked by Justice VR Krishna Iyer 40 years ago in a court decision: "Who will police the police?" "About 40 years have passed, but that question remains, with an even bigger question mark," the Court stated. The judge, Pradeep Kumar Srivastava, noted that it is common for some police officers, though perhaps very few, to be more loyal to criminals than to their own police force, for reasons unknown. The Court added, "Such police officers damage the good name and reputation of the police. It is important that officers who are suspected of wrongdoing should be held accountable. Their behavior should be watched closely, and a system to do this needs to be developed. If one already exists, it should be made stronger at different levels." The case against the accused-applicants The accused, Vinay Kumar Tiwari and K.K. Sharma, were charged with many serious crimes under India's main criminal law. These included rioting, murder, attempted murder, robbery, and planning a criminal act. They also faced charges under other laws related to criminal groups and explosives. It is claimed that they secretly planned to leak information about the police raid to Dubey. This allowed the criminals to be ready. It is also claimed that both officers did not properly help the police. They failed to tell the police force that the criminals were ready to fight back with advanced weapons. The accusation against the accused is that they had a close, friendly relationship with the criminal Vikas Dubey. He and his gang ran many types of organized crimes and were living and succeeding in the area covered by the police station where both officers worked. The police officer investigating the case talked to several witnesses. They spoke about the close relationship between the accused officers and the criminal Vikas Dubey and his gang. Submissions made before the Court The government's lawyer told the court that Vikas Dubey had said before his death that he knew about the raid beforehand. By looking at phone call records, the government's lawyer argued that on the day of the incident, before it happened, the accused called each other. This way of calling each other was very unusual compared to the past month. It was also argued that the accused made many calls to Dubey before the event. Importantly, it was also argued that the accused, K.K. Sharma, gave information to the gangster and was helping him as his agent. Because of this, he purposely stayed at the police station on the day of the raid. Lastly, it was said that Vinay Tiwari, along with his team members, did not come to help the team at any point. Court's observations First, the Court noted that it was clear the accused, who worked at the same police station, should not have had any work-related connection with the gangster and his group. Calling him on a mobile phone is certainly an important detail that can be used in the trial. Further, the court said that the type of crime and how much they are to blame is very serious, evil, shocking, and something that hasn't happened before. The Court added: "It is also clear that the main criminals knew about the police raid beforehand. It seems, based on these facts, that this information came from the police. This not only made the main criminals aware but also gave them a full chance to get ready for an attack and commit a terrible crime. In this crime, 8 police officers, including their leader, were shot and died. The attack was so sudden that the police could not defend themselves or fight back and could do nothing. The accusation against the accused is that they secretly planned the crime with the main criminal because they were close to him and were loyal. It is also believed they wanted to get back at the Circle Officer due to a personal disagreement." Lastly, to decide to refuse their request to be released on bail, the court considered the following points: The seriousness of the crime and how ready the gangster Vikas Dubey and his group were; Vikas Dubey's statement to the investigating officer before his death that he knew about the raid beforehand; The behavior of the accused before and during the event; Vinay Kumar Tiwari, even though he was leading one team, did not provide any help. He also did not get hurt, which showed he did nothing; and K.K. Sharma purposely stayed out of the raid. The accusation is that he was left at the police station on purpose to give information to the gangster.
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 48444 of Case :- CRIMINAL MISC. BAIL APPLICATION No. - 49354 of Opposite Party :- State of U.P. Counsel for Applicant :- Harshit Pathak, Anurag Pathak 1. Since both the bail applications are connected and arisen from same case crime number, therefore, both the bail applications are being disposed off by a common order. 2. Heard Shri V.P. Srivastava, learned Senior Counsel assisted by Shri Satyendra Singh, learned counsel for the applicant (Vinay Kumar Tiwari), Shri Shyam Narayan Verma, Shri Anurag Pathak and Shri Harshit Pathak, learned counsel for the applicant (K.K. Sharma) and Shri Manish Goyal, learned Additional Advocate General assisted Tiwari and Shri Mayank Mishra, learned AGA, Shri Abhijeet Mukherjee, learned Brief Holder for the State and perused the record. 3. The present bail applications have been filed by the accused- applicants Vinay Kumar Tiwari and K.K. Sharma in Case Crime No. 0192 of 2020, under sections 147, 148, 149, 302, 307, 504, 506, 353, 332, 333, 396, 412, 120B, 34 IPC, section 7 of Criminal Law Amendment Act and section ¾ of Explosive Substances Act, P.S.- 4. In the year 1981, in Prem Chand (Paniwala) vs Union Of India, AIR 1981 SC 613, Justice V. R. Krishna Iyer opened the judgment with a question “Who will police the police?” About 40 years have passed, but, that question is still there with a bigger question mark. On the date of incident, the raid conducted by police force was countered by the gangster Vikas Dubey and member of his gang in a very planned way and 8 police personnels including Circle Officer of the area were brutally killed and several police personnels sustained serious firearms injuries. The accused persons were carrying sophisticated firearms and the accusation against the accused- applicants is that they were in collusion with the gangster and his associates. Under a conspiracy, they leaked information of police raid and gave them opportunity to remain in preparedness and did not render due support to police personnels nor informed the police force regarding their preparedness to effectively counter the raid and their being equipped with sophisticated firearms. 5. As per FIR version and police papers, the brief facts are that on 03.07.2020, at 1 AM in the midnight, the incident took place in respect of which on the same day in the early morning at 5:35 AM, the FIR was lodged in which 21 accused persons were named with 60 to 70 unnamed accused persons and the allegation was that an FIR was registered on 02.07.2020, Crime No. 191/20, under section 147, 148, 504, 323, 364, 342, 307 IPC and section 7 of Criminal Law Amendment Act, 1932 against Vikas Dubey, Sunil Kumar, Bal Govind, Shivam Dubey and Amar Dubey. In order to arrest the accused persons, with reference to GD No. 5 at 00:27 AM midnight, SO Vinay Kumar Tiwari with other SI and Constables keeping weapon and cartridges reached at Bela crossing, where, as planning CO Bilhaur Shri Devendra Kumar Mishra with other police officers along with Govt. Vehicle and Driver and SHO Bithoor, Shri Kaushalendra Pratap Singh with other police officers along with Government Vehicle and Driver and also SHO Shivrajpur, Shri Mahesh Yadav with SI and Constables (all mentioned in the FIR by name), after due consideration, set out from the place in search and arrest of the accused persons. Between the police parties of three police stations mentioned above, in view of fencing around the house of accused which is surrounded by big walls of adequate heights with barbed wire fencing and huge iron gates in different directions, it was decided that on reaching on the main gate in the leadership of CO Bilhour, the police will be divided into three teams. The first police team was led by CO Bilhour, the second by SHO Bithoor and the third by SO Chaubepur. The police teams and police officers ensured that there was no illegal article with them. Thereafter, the police party departed from Diwedi Atta Chakki to Bikru village and the moment they reached 20 meters close to the house of accused Vikas Dubey (now dead), it was found that on the road, a JCB machine was standing horizontally in such manner that the road was almost blocked. The police party anyhow, from the remaining space, managed to reach to the Tiraha close to the house gate of accused Vikas Dubey. The first police party lead by CO Bilhour stopped at the gate and the second party led by SO, Bithoor proceeded towards left side in east direction, and from the right side towards south direction the third police group led by SO Chaubeypur was proceeding. 6. All the police personnels were in police uniform except one Guard who was in civil dress. There was sufficient light of electricity and dragon light. Suddenly, from the room situating on the first floor on the north east side from the roof of Vikas Dubey, accused Vikas Dubey and other co-accused persons with rifle, pistol and firearms in their hands, in a preplanned way, with intention to kill the police personnels, opened fire shouting loudly how the police personnels dared to raid and nobody would escape alive from this place. Side by side, from the roof of Raja Ram alias Prem Kumar Pandey, situating in front of the house of accused Vikas Dubey, Prem Kumar Pandey and other accused persons Shyam Bajpai, Chhotu Shukla, Monu, Jahan Yadav and others, and from the roof of the house of Atul situating in the west of the house of accused Vikas Dubey, Atul Vishnu Pal Yadav, Ram Singh, Ramu Bajpai and other co-accused persons opened firing in a planned way with intention to kill the members of the police party. Because of this sudden and indiscriminate firing, most of the policemen of the first group and second group were seriously injured. Some of the members of police party after positioning themselves proceeded towards the house of Rajaram Pandey and some proceeded towards the open land of Pappu Mishra. At the same time when the police party was so proceeding, the accused persons from the roof of their house came down and started firing on already injured police personnel. The police party led by SO Caubeypur, because of indiscriminate firing, did not proceed further. There was no place to shelter and there was regular firing by the main accused persons from the roof. They, therefore, covered the firing in order to reach at a safe place. The accused persons coming from all sides surrounded the police personnel, fired and killed SI Anoop Kumar Singh Chawki in-charge Mandhana, Constable Jitendra Pal, Constable Bablu Kumar, Constable Rahul Kumar and Constable Sultan Singh by causing gunshot injuries. In the varanda of the house of accused Rajaram Pandey, SO Shivrajpur, Shri Mahesh Yadav and SI Nimbu Lal were also killed by the accused persons. CO Bilhour was dragged inside the house of Prem Kumar Pandy by accused Vikas Dubey, Prem Kumar Pandey, and Amar Dubey, Dubey, Balgovind, Bauwa Dubey, and other co-accused persons and was killed brutally by them by causing injuries by fire arms and sharp 7. Meanwhile, remaining members of first, second and third police party, in their self-defense, started firing and saved 7 police personnels including SO Bithour, Shri Kaushalendra Singh, SI Singh Sengar and took them to safe place. During the incident the accused persons looted the Govt. pistol of injured SO Bithour, but because of cover firing caused by the police party, the accused persons could not succeed in causing death of SO Bithour, Kaushalendra Singh. The accused persons looted the Government arms form the police personnels and absconded away. The alive policemen, in the light of electricity and other light, recognized the accused persons. Injured policemen were admitted in the Regency Hospital for their treatment. Thereafter, the police reached at the place of occurrence and found the dead body of the policemen lying there. 9MM pistol with 10 cartridges of SO Mahesh Chandra Yadav, 9MM pistol with 10 cartridges of SI Anoop Kumar Singh, AK-47 with 30 cartridges of Constable Jitendra Kumar, insas rifle with 20 round cartridges magazine of Constable Sultan Singh were already looted by the accused persons during incident. Besides the named accused persons, there were 60 to 70 more armed accused persons who in a very planned way, initially hiding themselves at a high place, with intention to kill the policemen, caused fire and subsequently, they jumped down from the roof and from very close range they committed brutal murder of the policemen. The policemen also fired, but, because of this incident and indiscriminate and daring firing by the accused persons, a situation of lawlessness and sense of fear was created. The accused persons were led by accused Vikas Dubey was a known gangster and history sheeter of the area and there remained fear and terror of the gangster and his gang around the vicinity. Because of the criminal activities, the gang had gained a lot of movable and immovable properties. The police inspected the place of occurrence where cartridges were scattered here and there and the sign of firing was also present on the walls around and other places. Human blood was also scattered all over the place. On this basis, the FIR was lodged by SO Vinay Kumar Tiwari, who is presently one of the accused applicants. 8. The statement of informant was recorded by the Investigating Officer. The dead bodies were also taken into possession, inquest report was prepared, dead bodies were sealed and were sent for postmortem. The statement of SI Azhar Ishrat was recorded on the same day who stated in accordance with the FIR version. Thereafter, the statement of SI Vishwanath Mishra, P.S. Chaubepur, was also recorded who also stated to the tune of FIR and had additionally stated that from the roof of the house of the Vikas Dubey some women were loudly shouting that no police personnel should escape today and they were instigating the accused persons to kill the policemen. These women were Smt. Chhama, Smt. Khushi, Smt. Rekha Agnihotri, a maid of accused Vikas Dubey who used to live in the house of accused Vikas Dubey and she was also involved in his criminal activities. 9. Thereafter, SO Vinay Kumar Tiwari was suspended by order dated 4th July, 2020 of SSP, Kanpur Nagar on account of his inaction, suspicious role and for not apprising the police force about the kind and quality of weapon accused Vikas Dubey and the members of his gang were keeping, nor he apprised about the way to get away from the place of occurrence. It was also found that when the firing started from the side of accused persons, the applicant did not lead his team and escaped from the place. Because the police personnels were not having any knowledge about the way to get away from the place, a number of them were killed and in a great number sustained injuries. 10. The IO recorded the statement of constable Rajeev Kumar who stated to the tune of SI Vishwanath Mishra and further added that SI Krishna Kumar Sharma and SO Vinay Kumar Tiwari of the police station were closely related with accused Vikas Dubey and prior to the incident, SI Krishna Kumar Sharma talked with Vikas Dubey for 20 minutes on mobile. He has also stated that these police officers (accused-applicants) were conspired with accused Vikas Dubey to humiliate and give lesson to CO Bilhour out of jealous and bad 11. Statement of constable Abhishek Kumar was also recorded and he also stated that SI Krishna Kumar Sharma and SO Vinay Kumar Tiwari were closely related with accused Vikas Dubey. He has also supported the statement of Constable Rajeev Kumar on that point. Statement of co-accused Suresh Verma was also recorded and he also stated in similar fashion showing the closeness of these two with accused Vikas Dubey and the prior talk with SI Krishna Kumar Sharma with him just before 20 minutes from the time of incident. 12. SI Azhar Ishrat was again examined by the IO, and despite that he supported the FIR version, he also stated about the involvement of the women who instigated the accused persons for commission of the offence and said that he saw Sanjay Dubey @ Sanju who was firing on the police party who was known to him because he used to come to the police station regularly. Co-accused Suresh Verma was also instigating the other accused persons. On being asked by the IO, he stated that SI K.K. Sharma was not present there during the raid who was present in the police station but deliberately did not join the raid. He was asked to join but he avoided. He had already given information about the raid much before the time of incident to gangster Vikas Dubey with whom he was closely related. He has also stated that he knew the accused persons with name because he is posted in the police station from the last about 3 years and he had gone to the village of Vikas Dubey several times in respect of his official duty and Vikas Dubey and his other associates were well known to him. He saw and recognized the accused persons in the solar light which is installed at the main gate of Vikas Dubey and also in the light on the roof of the house of Vikas Dubey, Prabhat Dubey, identified the other accused persons going from the side of house of Agar Dubey to the house of Vikas Dubey. The witness has stated that he also fired 7 times but realizing that by firing his location will be exposed, he stopped firing and concealed himself in the veranda of the neighbour of the Prabhat Mishra. Constable Navneet also concealed himself there. Thereafter there was power cut and Prabhat Mishra who was firing from his roof came down with his rifle and seeing them, he fired on Constable Navneet but because the witness intervened by slapping on the but of rifle, constable Navneet escaped and thereafter he and constable Navneet, because they were fully acquainted with the geographical situation, through the field, came to the road. The JCB driver was Rahul Pal and not Monu as he had stated earlier. He has named the accused persons who fired on the members of the police party. 13. Subsequent statement of SI Vishwanath Mishra was recorded and he has given detailed statement and besides that he supported the FIR version, he has also stated that the accused persons were firing from the roof of Prabhat Mishra. He has stated that Vikas Dubey was a known criminal and, in the area, he used to possess and grab lands of others with the help of police. He used to create terror and organize gambling. SO Vinay Kumar Tiwari was in his contact through SI K.K. Sharma and they used to regularly associate with them. This came in the knowledge of CO Bilhour and he had submitted adverse report about them to the superior authority. On the date of incident, K.K. Sharma deliberately avoided in participating in the raid and during the period he was regularly in touch with the accused persons. He and SO Vinay Kumar Tiwari just to lower down the image of CO Bilhour, conspired with the criminals and consequently 8 police persons were killed and 7 police persons sustained serious injuries. 14. SI Ajhar Ishrat was re-examined by IO and he also stated that the accused persons were well informed about the raid which is also clear from electronic surveillance and other evidence. The relationship between SO Chaubepur and Circle Officer was bad and the CO had sent adverse report regarding misconduct of SO Vinay Kumar Tiwari to superior officer. He stated that SI K.K. Sharma and SO Vinay Kumar Tiwari were in contact with accused Vikas Dubey and used to regularly associate with him and therefore, the accused persons succeeded in causing such a horrible incident only because SI K.K. Sharma and SO Vinay Kumar Tiwari leaked the information about raid to them. He has also stated that he recognized the accused persons in the road light and accused persons were also lighting torch from their roof and were shouting. 15. Certain call details have been also annexed at page 156 and onward showing that accused-applicant K.K. Sharma had talked with the gangster and his gangmen. The learned counsels for the applicants have contended that constable Rajeev Kumar was also in touch with Vikas Dubey. The audio conversation of Constable Rajeev Kumar with Vikas Dubey has also been annexed to show that he was in regular touch with Vikas Dubey and he has not been made accused. Constable Rajeev Kumar has been subsequently examined and he has stated that Vikas Dubey was having prior knowledge of the police raid and he rang him on mobile phone but, being occupied in work, he could not pick up the same and when he saw that there was miss call of Vikas Dubey, he dialed him and Vikas Dubey gave a lot of threatening and abuse and threatened that he will kill all the police personnels who will be found on the police jeep and he would commit such a big offence which will be unprecedented. The witness has stated that he recorded the phone call and told about this threatening to Vinay Tiwari, SO, Chaubepur and also said that the gangster has prior information of police raid, but, SO Vinay Tiwari ignored and did not take him seriously. He was also accompanying SO Vinay Tiwari during the raid. He recognized most of the accused persons. He has stated that Chhama Dubey, Khushi Dubey and Shanti Devi from the roof of Atul Dubey were disclosing the location of police personnels to the accused persons and were instigating them to kill the policemen. The accused persons continued firing from 1 AM in the night for 30 to 35 minutes. 16. From the description above, it is clear that 8 police personnel including the Circle Officer were brutally murdered by the accused persons and 7 police personnel sustained serious injuries. The accused persons who were named in the FIR with 60-70 more accused persons constituted unlawful assembly with firearms and deadly weapons killed eight police personnels in a brutal way and injured the police personnel very badly by causing firearm injuries. Some of the police personnels were killed and part of their limbs was also separated from body. The police witnesses who were one time colleagues of the accused applicants have given statement that the accused applicants were very close to gangster Vikas Dubey and his gangmen and they leaked the information of raid which gave opportunity to the accused persons to prepare and plan the brutal murder of the police personnels. 17. Submission of the learned Senior counsel for accused applicant Vinay Tiwari is that there is no direct or indirect evidence against him. It was a police raid conducted by the police party which was countered by the main accused persons and in the incident 8 police persons were killed by gunshot injuries and 7 policemen also sustained gunshot injuries. The accused applicant was himself leading one of the police party. He himself lodged the FIR against the main accused persons and he also lodged FIR on the basis of information given by Rahul Tiwari implicating them. Therefore, it has been submitted that there is no question of the accused-applicant being involved in the commission of the offence. He has no motive nor there was any reason for him to enter into so called conspiracy which resulted in such a heinous crime. Further submission is that the witnesses have changed their version when they were subsequently examined by IO and all of them in a tutored way have stated about the closeness of the accused-applicants with gangster Vikas Dubey and his gang. There is no substantial evidence and there is only some scattered evidence against the accused applicants which is insufficient for the accusation of criminal conspiracy. Nothing can be concluded against them on the basis of CDR, particularly against SO Vinay Tiwari who never made any communication on mobile with either Vikas Dubey or his gangmen. There is no such CDR collected by the Investigating Officer. 18. It has been further submitted that the applicants have been falsely implicated. Late CO Devendra Mishra was informed about the incident of Rahul Tiwari who directed him not to make entry in GD as the police is going to take stern action and this will alert gangster Vikas Dubey. The policemen including CO Devendra Kumar Mishra were posted there for much longer period and were well-versed with history sheeter Vikas Dubey. The accused-applicants had no cordial relation with them. The said viral letter of CO indicating close relation is forged and has been obtained from social media. No such letter was sent by CO Mishra to SP, Kanpur Nagar nor the applicant was put to any departmental proceeding nor any explanation was asked from him. It has also not been mentioned in his suspension order. The allegations regarding his conduct during raid are vague, imaginary and false and is not supported by any evidence. 19. On the contrary, the learned additional Advocate General Shri Manish Goyal has argued that it is not a case of simple crime and the crime has been committed because the police assisted the gangster and leaked the information with regard to raid and, because of the prior information about the raid, the gangster was in preparedness and he planned the murder of the policemen and it is why so many accused persons assembled with the main accused and were active at the time of raid. They were inhabitants of area falling within the same police station in which house of the gangster situated and where the incident took place. Being the member of police force and working at the local police station, the accused-applicants had enough information about the geographical situation and path ways around the vicinity. The police force reached to the place of gangster and could not get away from the place as the accused applicants did not render support nor cooperated and remained inactive. The role of SI K.K. Sharma is rather evident in view of the fact that he was regularly in touch with Vikas Dubey and his gang and through him SO Vinay Tiwari was also in his touch. Both the accused applicants certainly helped them and always closed their eyes towards the criminal activities of the gang. They, during the incident, maintained distance from the other police party and went away to save themselves. In case of such an organized crime where members of police force were assisting the gangster and his group, it is not possible to have a direct evidence. Moreover, in a case of conspiracy, there is no possibility of direct evidence. The evidence which can be available is only circumstantial in nature and may be in the form of inaction on the part of the accused applicants who, in their endeavor to assist the accused persons, kept themselves out from the picture. Therefore, the conclusion of conspiracy is to be drawn from the circumstances of the case and the situation that the applicants, being member of police force, were indulged in assisting gangster Vikas Dubey and his gang, and all the paper work was done by them. It has been submitted that the IO examined several witnesses of police force who worked with the accused applicants and they have stated about conspiracy and their close links with the gangster and his gang. 20. Moreover, it has been also pointed out on behalf of the State that, on being arrested, gangster Vikas Dubey gave statement to the IO revealing that the accused applicants used to give prior information of police activities and on the date of incident also he was informed about the police raid. The gangster is dead and his statement given to police is legally admissible as the same is statement of a dead man. Therefore, it has been submitted that taking into consideration over all circumstances, the culpability is writ large and the accused applicants do not deserve to be released on bail. 21. This case raises certain serious questions which relate to administration of criminal justice system in the country with reference to organized crime and criminals and the role and efficiency of police force in combating the problem. The police force is one of the most important force with great potential, easily approachable to the people facing criminal wrong and law and order problem and the most visible component of the criminal justice system. Like other departments, there has been a general fall and deterioration in the standard of functioning of the police force also. With time, it has been seen that the police force, not as a whole, but in small groups, has gone through a phase of moral and professional deterioration. There are black sheep also in the police force and they reflect upon the whole department which has led to growing concern, and a number of attempts have been made to mend this situation. In this direction, the past few years have been particularly eventful, with a number of positive developments having taken place towards a solution of the problem and the state appears to have observed zero tolerance policy towards organized crime and criminals. Strict and rigorous steps have been taken to break and demolish financial network of gangsters. In future, this shall certainly bring about more and more positive results towards restricting criminal activities and organized crime. 22. Organized crime is not confined to a single state, or any one country and has become an international problem in view of their wide spread network and sometimes they have been also found to be a natural ally of terrorist groups. Organized crime is an act of threat involving murder, kidnapping, gambling, arson, robbery, burglary, extortion or dealing in narcotics or dangerous drugs and other crime. The basic features of organized crime involves a group of individuals that is structured, sophisticated and widely spread across nations; it is a section of society that seeks to operate outside control of the people and government and it is a self-perpetuating, continuing criminal conspiracy for profit and power, using fear and corruption and seeking protection from law. The focus areas of organized crime are smuggling, drug trafficking, women and child trafficking, arms trade, hawala, circulation of fake currency, extortion and contract killing. With financial solidarity, these criminals have entered into business of film financing, hotel business, house building, government contracts and the like. The gangsters are divided into three categories, namely, sharp shooters, money collectors and liaison agents. The liaison agents deal with lawyers and law enforcement officials to resolve legal problems and to ensure easy bail to gangsters. (For details see S M Sharma The Organized Crime in India, Tokyo: United Nations Asia and Far East Institute (UNAFEI), 1999, Vol. 54, pp 23. The police force faces some real difficulty in combating with organized crime and criminal activities. The police personnels are mostly not provided with that kind of sophisticated arms which are available in plenty to the gangsters and their gang members. The police stations are mostly under-manned and the strength of police force is remarkably less in comparison to the population. The police has to act in accordance with legal norms and while acting so, they are required to avoid any excesses and human rights violation. They have to behave like a disciplined force actuated to uphold rule of law and motivated by sense of public security and service. The force also face the problem of some police personnels who may be close and in collusion with the local mafia. They can leak the confidential informations and strategy of police for taking action and conducting raid to arrest the gangsters. On the contrary, the organized criminals keep with them all kinds of sophisticated weapons, they use the same indiscriminately and they can cause any amount of damage to the human life and property. Where they are having support from some members of police force, their potential to execute criminal act is adequately enhanced. 24. The problems of police force has been time and again highlighted by several Law Commissions appointed for making recommendations for police reforms and needless to point out that several recommendations have been suggested from time to time. It is pertinent to mention that the Supreme Court has also issued directions in view of recommendations in some of the judgments such as Vineet Narain v Union of India, AIR 1998 SC 889 and Prakash Singh v Union of India, (2006) 8 SCC 1. Professor M P Singh, in his book Police Problems and Dilemmas in India 10 (1989) has discussed the fundamental complexities of Indian police system and has remarked that the police in the country faces tremendous challenges and works under extreme pressure due to a number of reasons such as growing unemployment, deterioration in educational environments, conflicting claims of socio-economic components, fluctuations in political order, rampant corruption etc. Frequent transfers to unfavorable positions or locations have demoralizing effects on the police force and it becomes a survival technique for police to have close relationship with one or other political person. 25. The purpose of the above discussion is to show the prevalent conditions in which the police has to perform the complicated and difficult job of ensuring law and order, maintaining security and peace, preventing crime and taking action against and causing arrest of offenders. These all require home work and team work and if any member of police force starts giving clues about and leak the police strategy, the strategies are bound to fail and shall certainly result sometimes, particularly when police is confronting against organized crime and criminals, in disastrous situation as has resulted in this case. In such situation, policing such police personnels is a big task and it requires early identification of such black sheep, monitoring of their conduct, isolating them and taking immediate strict disciplinary action against them. 26. Now coming to the facts of this case. The accusation against the accused-applicants is that they had close friendly relationship with the gangster Vikas Dubey who and the members of his gang were running organized criminal activities of all sorts and was residing and flourishing within the local jurisdiction of the police station in which both the applicants were posted. IO has examined several witnesses and they have stated about the close relationship of the applicants with the gangster Vikas Dubey and gang. Submission of the learned senior counsel and other counsel for the the applicants is that the witnesses have stated against the applicants only when they have been examined subsequently on second and third time and their subsequent statement is after thought to meet the case against the applicants. Otherwise, the witnesses had not stated anything against the applicants. 27. It is pertinent to mention that gangster Vikas Dubey was arrested in Ujjain and while he was being brought to Kanpur Nagar, the Investigating Officer took his statement. On the way, the police vehicle suffered accident. Vikas Dubey snatched the pistol of IO and attempted to run away from the police custody. He opened fire on police personnels and by police firing in self-defense, he was shot dead. The IO got hospitalized and after being discharged, he wrote the said statement of Vikas Dubey in CD. Some of the part of his statement has been also quoted in the bail application. In brief, Vikash Dubey, giving detailed description of the incident, has stated to the IO that on 2/3.07.2020, he had prior information of police raid at about 04:00 PM and the information was given by SI K.K. Sharma. The JCB of Sultaan Ahmad was working there from the last one and half months and in the night at about 12:00 PM, he called upon driver Rahul Pal with JCB and he got obstructed the road by JCB so that the police suddenly might not come to his house. He further stated that one Rahul Tiwari was harassing him by giving false complaints against him and the police was also supporting him. Therefore, hatred was generated in him towards the police and he had decided that he might be killed but he will give lesson and kill as many as police personnels as he can. He called his associates Raja Ram @ Prem Kumar (maternal brother), Shashi Kant, Shyamu Vajpayee, Chotu Yadav and Balloo Musalmaan. Licence holders came with their arms and to the remaining persons, he provided guns, country made pistols and cartridges. CO, Bilhaur, Devendra Mishra was behind him and, therefore, he was brutally killed. He was having animosity with SO, Shivrajpur also as in February, 2020, in the election in Kota, his nephew Aman Tiwari was contesting election and SO Shivrajpur got his man arrested with illegal pistol whereupon he felt very humiliated. His close companions were on the roof with arms and he had made planning on every pathway coming to his house to kill the police personnels. Fortunately, the police force came from the way on which J.C.B. was planted and it made the task very easy and they surrounded the police officials and killed them. When there was power cut, he used code words which was a signal to run away from the place. He had also intended to kill his distant associates in order to implicate the police force but this could not happen. The women of his family and close to him such as Rekha Agnihotri, Kshama, Khushi, Shanti Devi were told to cry seeing the police personnel as “thief-thief”. Manu Pandey was also having the knowledge of planning. Thereafter, with the help of his close associates, he went to 28. Submission, in this respect, from the side of accused-applicants has been two fold- that the statement of Vikas Dubey is not relevant against accused-applicants as he was the prime accused in the FIR and secondly, he did not state any thing against SO Vinay Tiwari and has only taken the name of SI K K Sharma. From the side of State, it has been contended that the statement of Vikas Dubey is statement of a dead man and it has legal effect under section 32(3) of the Indian Evidence Act. Moreover, other witnesses have stated that SO Vinay Tiwari was very much close to Vikas Dubey through SI K K Sharma and therefore, the statement can be well considered against both the applicants. Section 32(3) provides as follows: “32 Cases in which statement of relevant fact by person who is dead or cannot be found, etc, is relevant. — Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:—(3) or against interest of maker. —When the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages.” 29. It is clear from the reading of section 32(3) that statement of a dead man has been legally recognized and used in evidence even though the same does not relate to the cause of his death. Although, a final view is not required to be expressed at this stage as the same will be considered by the trial court, yet, this much is clear that the statement is of a dead man and the same has legal relevance in view of the provision of the Evidence Act. 30. CDR has been annexed with the bail application at page 156 to 163 to show the relationship of accused-applicants with the gangster. On the basis of study of CDR, the IO has noted that on the date of incident, prior to incident, the accused persons contacted each other and this call pattern is exceptional in the last one month as this type of communication between them is unique; the CDR of the mobile number of Vikas Dubey shows that his location was in Village Bikaru where the incident took place; between Vikas Dubey and co-accused persons of his gang, there is 15 calls by the gangster, again a unique pattern, by which he talked to the co-accused persons which indicates that he was preparing for the incident; Vikas Dubey talked with one police personnel Rajiv Kumar prior to incident which is full of abusive language and threatening to kill police personnels and of committing big criminal incident; it further indicates that he was having prior information of police raid and he was in full preparedness to commit the offence and kill police personnels as many as he can; and call details also show that between co-accused Ramsingh and applicant K.K. Sharma, there were two calls and the location was in Village Bikaru, and as such by the mobile of Ramsingh, Vikas Dubey was in contact before and during the incident. The accusation is that the accused-applicants, particularly accused-applicant K.K. Sharma, were giving information to the gangster and were working as agent to the aid and assistance of the gangster and it is why accused K.K. Sharma kept himself in the police station deliberately and both the accused-applicants had conspired with Vikas Dubey and gang as it was not possible for the accused-applicant Vinay Kumar Tiwari to contact the gangster at the time or during the incident. 31. The learned Senior Counsel for the accused-applicant Vinay Kumar Tiwari has submitted that constable Rajiv himself had also contacted on mobile with Vikas Dubey and as such he should have been also made accused on the basis of the analogy put forward by the State. Moreover, there appears to be no such communication by applicant Vinay Kumar Tiwari with the gangster or his gang-men. The statement of constable Rajiv however shows that he found a miss call of Vikas Dubey and he called back to him. In respect of second argument, it has been submitted by State that applicant Vinay Tiwari used to be in contact with the gangster through K.K. Sharma. Whatever the truth may be, this much is clear that the accused- applicants who were posted in the same police station could not have any professional relationship with the gangster and his men and communication on mobile with him is certainly a relevant circumstance which can be considered during trial. 32. From the side of the State it has been also pointed out that the incident took place in the notified area under the UP Dacoity Affected Area Act and due attention is required to be given to the law provided under section 10 of the Act. The relevant part of Section 10 is as Notwithstanding anything contained in the Code of convicted of a scheduled offence shall, if in custody, be (a) the prosecution has been given an opportunity to (b) where the prosecution opposes the application for bail, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence:.......” Submission is that after investigation, finding sufficient evidence, charge-sheet has been already submitted by police and at this stage there is no reason to believe that the accused- applicants are 33. From the side of accused-applicants, it has been pointed out that the witnesses examined by the IO initially did not state any thing against the accused-applicants and only in their second and third statements, they have started making allegations against them. As such, their subsequent statement is nothing but an after thought in order to falsely implicate the accused-applicants. It has been specifically mentioned that the allegations have been made by the witnesses mostly in the last part of their statements and a reading thereof shows that the words and expressions used are same and similar which is not possible if statements have been given by the witnesses individually and separately. This contention appears to have no weight as it has been rightly pointed out on behalf of the State that all the statements are part of CD and a view at this stage has to be taken after due consideration to all the material on record. 34. The bail applications have been also opposed on behalf of State on the ground that applicants are police officers and they are in a position to influence the witnesses if they are released on bail. They hatched conspiracy with the gangster and deliberately acted in such a manner which helped the gang in the commission of this offence. It has been submitted that in the counter affidavit dated 25.1.2021, in order to save skin, accused-applicant Vinay Tiwari set up a false case that while he was on patrolling duty on 2.7.2020, he saw Vikas Dubey and his gang-men beating one Rahul Tiwari and while he confronted him, Vikas Dubey pointed his rifle on him and to save himself, he came back and convinced Rahul Tiwari to lodge FIR against Vikas Dubey. The falsity of this version is clear from the two facts, one, this has not been mentioned by the accused-applicant in the relevant GD, and two, this fact has been nowhere mentioned in the FIR of Rahul Tiwari nor it has been mentioned therein that he saved the informant during the said incident. Further submission is that applicant Vinay Kumar Tiwari himself lodged FIR and all papers were either prepared by him or on his direction, and he made all efforts to save his skin and after the applicants were made accused in this case, during investigation, incriminatory things have been revealed against them. 35. Further submission is that the applicant as SHO of concerned police station was very much aware about the activities of Vikas Dubey and was having healthy relation with him. The then Circle officer Sri Devendra Mishra (deceased) had also made a complaint against the working of the applicant highlighting his close relationship with gangster Vikas Dubey. On the date of incident, the raid was planned which is clear from GD entry of 03.07.2020 of 12:27 AM in the mid night about movement of the police team. When the police team reached near the house of accused Vikas Dubey led by Circle Officer, Bilhaur, late Sri Devendra Mishra and SO Shivraj Pur, SHO Bithoor, the applicant requested to be the part of third team and convinced CO, Bilhaur to lead the main team and to enter from the main gate and while the team of CO proceeded towards the gate, they found that a JCB had blocked the main gate and a narrow passage was left there. Anyhow, when they reached close to the gate, suddenly from all the three sides, indiscriminate firing was started from the side of the gangster and his associates. The accused- applicant as per plan had to conduct raid from the right side. But neither he proceeded towards the right side nor he provided any help to the other teams. As such, the conduct of the accused-applicant shows that he was having knowledge of the plan of Vikas Dubey and he was also aware about the topography of the place and he knowingly avoided to lead the team which raided from the main gate and on account of conspiracy, the accused-applicant did not provide necessary information. 36. All the aforesaid contentions relate to one or other circumstance and they will be examined during trial and, therefore, it is not desirable to express any final opinion. The fact is that in the incident, CO Devendra Mishra, SHO Mahesh Kumar Yadav, two Sub Inspectors Anoop Kumar Singh, Nebulal and four Constables Jitendra Kumar, Sultan Singh, Rahul Kumar and Babloo Kumar were brutally murdered and seven police personnels SI Kaushalendra Pratap Singh, SI Sudhakar Pandey, Home Guard Jairam Katiyar, constables Ajay Singh Sengar, Shiv Murat Nishad and Ajay Kumar Kashyap received gun shot injuries and one person also received injury. Perusal of injuries found on the dead bodies shows that several gunshot injuries were caused to them and it was ensured that they could not survive. The gunshot injuries of all the deceased police personnels affirm that injuries were caused from close range as blackening and charring has been found. This also shows intention and knowledge in causing death and extreme culpability on the part of the main accused 37. At no point of time, applicant Vinay Tiwari along with the members of his team responded to provide any backup to the team. While the members of other two teams, late Sri Devendra Mishra, late Sri Mahesh Chandra Yadav and late Nabu Lal, Sub Inspector and from second team SHO Bithur Kaushlendra Singh sustained fire arm injury and from his team five other police personnels including Sub Inspector Anoop Kumar were shot dead, only two persons from the team of accused-applicant sustained injuries who, as submitted, by default joined the first team at the time of firing. The accused- applicant did not receive any injury and this also shows that he avoided active participation in the raid. The accused-applicant deliberately concealed the availability of automatic weapons with gangster Vikas Dubey and also concealed the incident which took place at the time of alleged saving of Rahul Tiwari. For this lapse and misconduct, the accused-applicant was suspended. 38. During the course of investigation, several witnesses present at the time of incident have stated that the accused-applicants were having cordial relationship with accused Vikash Dubey. Constable Rajeev Kumar who was the fellow of applicant Vinay Tiwari has in his first statement stated that the applicant Vinay Tiwari, co-accused Sub Inspector K.K Sharma were having cordial relationship with gangster Vikash Dubey. Constable Abhishek Kumar and others have also stated the same facts. The call details show that Sub Inspector K.K. Sharma on 02.07.2020 made several calls to the gangster and informed them about the raid as he talked with the accused for more than 20 minutes in different calls. There is enough evidence on record to show that the accused-applicants were having very good relationship and soft corner towards Vikas Dubey. This fact has also been stated by accused Kshama and Rekha Agnihotri in their 39. The witnesses have stated that Sub Inspector K.K. Sharma was regularly in touch with the main accused and was regularly informing him about the movement of police team. The call details of K.K. Sharma sufficiently demonstrate his involvement in the crime. Moreover, Applicant Vinay Kumar Tiwari was having jealous and bad relation with Circle Officer Devendra Mishra and it is why he was convinced by accused-applicant to lead from the main gate as a result of which 8 police personnels were killed and 7 policemen received gunshot injuries. After investigation, sufficient credible evidence was found against the accused-applicants showing their involvement in the whole criminal conspiracy which led to the commission of such a horrendous crime. They conspired with gangster Vikas Dubey, leaked confidential information about the raid and facilitated the gangster and his gang to commit such a crime which resulted in death of 8 police officers. The enmity and bad relation of accused-applicant with Circle Officer Devendra Mishra is very much evident and the Investigating Officer has taken note of the viral letter in his CD in which Circle Officer Devendra Mishra had intimated to higher authorities that integrity of Vinay Tiwary was completely doubtful and he was regularly meeting with Vikas Dubey and was communicating with him. It was also complained that if Vinay Tiwari does not modify his conduct, any time some serious incident can take place. With the CD, the report of Sri Devendra Mishra, Circle Officer has been annexed by the accused-applicant in his rejoinder affidavit dated 22.02.2021. At this stage, it cannot be ruled that the said letter of Devendra Mishra is fake as contended on behalf of accused-applicants. 40. It has been also argued from the side of accused-applicants that investigation has been completed and charge-sheet has been already filed in this matter. The applicants are in jail from the last more than one year. Their pretrial detention for such a long period is resulting in deprivation of their right to liberty and freedom. The learned counsel for applicant K.K. Sharma, has relied on the judgments of Dalvir Hussain v State of Gujarat, AIR 1991 SC 56, Pawan Kumar v State of UP, 2015(90) ACC 9 (SC), Mukesh Kumar Kashyap v State of Uttarakhand, 2015(89) ACC 903, State of UP v Rajju, 2005(53) ACC 343, and K R Purushothaman v State of Kerla, 2006(54) ACC 255(SC). Therefore, it has been requested that, taking into consideration overall circumstances and the long period to which they are in jail, the court should take sympathetic view and the applicants should be released on bail. 41. This court is not oblivious about the fact that the release on bail is crucial to the accused as the consequences of pretrial detention are grave. If release on bail is denied to the accused, it would mean that though he is presumed to be innocent till the guilt is proved beyond reasonable doubt, he would be subjected to the psychological and physical deprivations of jail life. The jailed accused loses his job and is prevented from contributing effectively to the preparation of his defence. Equally important, the burden of his detention frequently falls heavily on the innocent members of his family. But, if the accused is involved in a conspiracy for commission of a heinous offence by a hardened criminal, his release on bail will give him an opportunity to abscond or temper with witnesses. Against such crime, social reaction is also sharp. Therefore, a balance between the need for protection of individual liberty which is so important and the requirements of the society for being shielded from the hazards of being exposed to the misadventures of organized crime has to be 42. The criminal justice system is often criticized for its pro-active approach towards the accused. The rights of the accused are protected not only during trial but also during investigation and even after the delivery of judgment, more particularly when the case has resulted in conviction. The accused cannot be kept in police custody unless with the order of Magistrate and that too is possible only within first fifteen days of his arrest. The bail provisions are liberal and for arresting the accused there must be prima facie evidence collected by the Investigation Officer. He can also be released on anticipatory bail. The accused cannot be put to cruel or inhuman treatment at any stage. There is a strong presumption of innocence in favor of accused and consequently, it creates a heavy burden on prosecution to establish the guilt beyond any shadow of reasonable doubt. The accused has been given constitutional protection against self incrimination and he has right to keep silence throughout and his silence will not be taken adversely against him. Moreover, he enjoys all the rights associated with his fair trial claim including free legal aid and impartial justice delivery. Thus, protection of rights of accused is natural feature of democracy which is accorded for the simple reason that the criminal law machinery is controlled by the State. Accused is given free food, free lodging, free clothes etc. and if he has been directed to undergo rigorous imprisonment, he will have to be paid by the state for the work he has rendered during jail life. But, the victim who is the most adversely affected person by the criminal incident has no such claim. The guilty man is lodged, fed, clothed, entertained and educated by the state at the expense of the public, but ironically, the victim is left to pay for even his medical expenses which may be the result of that criminal event. There is no free education, free housing, free clothing and free food for the victim. The injured party, in the criminal law, often takes a back seat and after being examined in court as witness, he stands aside waiting and watching the criminal justice in action satisfied by conviction and sentence. He is fortunate if he gets a little compensation or even expenses of the litigation. The administration of criminal justice inspired and dominated by human rights and humanitarian causes does every effort to reform, treat and rehabilitate the offender, but does not show equal concern for the poor victim who has suffered loss or injury. ( See for details Stephen Schafer, Restitution to victim of crime, Stevens & Sons Ltd., London (1960) p. VII as quoted by Bharat C. Das, Victims in the criminal justice S.V. Joga Rao, Victim Restitution, the Lawyer, June 1990, p. 17 and Proff. A. Lakshminath & Dr. J. Krishnakumari, Criminal Trial and 43. Crime, corruption and population are three major problems the society is facing at present. While against crime and corruption, particularly when it is organized crime and corruption, strict state action and intervention is necessary to restrict and minimize the same to maximum extent, control over population growth requires legal steps and strategy inclusive of motivation, spread of education and awareness and some positive incentive to those who opt for family planning. Against crime and corruption, the State must continue with the policy of zero tolerance. The political parties should rise above board against crime and corruption without being influenced by consideration of “his man” and “our man” as this approach will not only undermine rule of law but will also damage the democratic set up of the nation. 44. This is not an unknown phenomenon that there are policemen, may be very few in numbers, who show their loyalty more to such gangster than to their department for the reasons best known to them. Such policemen tarnish the image, name and fame of police and it is necessary that suspicious police personnels should be taken to task and their conduct should be regularly monitored for which a mechanism should be evolved, and if it exists already, the same should be geared up at different levels. There is a concerning trend that one or other political party welcomes gangsters and criminals involved in organized crime in the party and try to back and protect them, painting and spreading an imaginary image of Robinhood. They are given tickets to contest elections and sometimes they win also. This trend needs to be stopped as soon as possible. All the political parties should sit and together a decision is required to be taken by them that gangsters and criminals will be discouraged in politics and no political party will give ticket to them in public elections. The political parties should rise to the occasion and must guide themselves keeping in view that there cannot be a concept of “my criminal” and “his criminal” or “my man” and “his man,” as a gangster is gangster only and is required to be condemned from all corners and even people/voters should also take note of it while making their choice for a candidate in a general election. We must have the idea in mind that if we are entrusted with responsibility of nation building, our responsibility is to think about the future generation to whom we have to handover a legacy. We need to ponder what kind of nation and society we want to leave for our future generation. A sooner decision is necessary lest one day these gangsters and criminals will become “Bhasmasur” and will give such serious dent to the country and democratic set up which cannot be 45. The pursuit of life, liberty and peace includes freedom from crime. The State’s foremost duty is to provide these basic rights to each citizen. The success of a Criminal Justice System can only be measured by how successful it is in ensuring these rights in word and spirit. The extent to which these rights are successfully protected, will be reflected in the confidence of the public in the system. The organized crime should be treated differently from traditional individual criminality. Conspiracy is an integral aspect of organized crime. There cannot be a direct evidence of conspiracy in such cases and the law has to deal with organized crime on a footing different from that of individual or conventional crime, as regards admissibility and appreciation of the evidence. 46. The discussion aforesaid certainly goes to show that the nature of offence and amount of culpability is serious, heinous, shocking and unprecedented. It is also evident that the main accused persons had prior information of the police raid and naturally, in the present set of facts, this information was revealed by police which not only made the main accused persons alert but also provided them fullest opportunity to prepare for attack and commit such a horrendous crime in which 8 police personnels including the Circle Officer sustained gunshot injuries and died. The situation of crime was such and so sudden that the police force could not get opportunity to sustain and counter and could do nothing. The accusation against the accused-applicants is that they conspired with the main accused for the commission of the offence because of their good relationship and loyalty with main accused and also they wanted to score their personal grudge with the Circle Officer. It is not possible to give a final opinion at this stage. Certain witnesses who were part of the police raid have given evidence against the accused-applicants showing their closeness with the main accused persons which is supported by circumstances such as the magnitude of the crime and the preparedness on the part of gangster Vikas Dubey and his associates; the statement of Vikas Dubey given to the IO before his death that he had prior information about the raid; the conduct of the accused-applicants before and during incident; applicant Vinay Kumar Tiwari though leading one team but did not give any backup support nor sustained any injury and showed complete inaction; and applicant K K Sharma deliberately avoided in participating in raid and the accusation is that he stayed and was deliberately left on police station to pass information to the gangster. 47. In view of the above discussion, the serious and heinous nature of the offence, complicity of the accused-applicants in the conspiracy and taking into consideration overall circumstances of the case, I do not find any reason sufficient to allow the bail applications. Hence, the bail applications of accused-applicants Vinay Kumar Tiwari and K. K. Sharma are rejected. 48. The learned trial court to expedite the trial. If the case is not disposed nor a substantial development is found towards progress of trial in one year, the accused-applicants will be at liberty to move fresh bail application. 49. It is also made clear that no observation of this Court in this order will have any binding effect on the trial court and the case shall be decided on the basis of evidence adduced during trial.
The Allahabad High Court today refused to let two police officers from Uttar Pradesh out of jail. These officers, SO Vinay Kumar Tiwari and Beat Officer Krishna Kumar Sharma, are accused of planning a crime. This is connected to a surprise attack in Bikru village on July 3, 2020. In that attack, eight policemen were shot and killed by the criminal Vikas Dubey. The Court began by recalling a famous question asked by Justice VR Krishna Iyer 40 years ago in a court decision: "Who will police the police?" "About 40 years have passed, but that question remains, with an even bigger question mark," the Court stated. The judge, Pradeep Kumar Srivastava, noted that it is common for some police officers, though perhaps very few, to be more loyal to criminals than to their own police force, for reasons unknown. The Court added, "Such police officers damage the good name and reputation of the police. It is important that officers who are suspected of wrongdoing should be held accountable. Their behavior should be watched closely, and a system to do this needs to be developed. If one already exists, it should be made stronger at different levels." The case against the accused-applicants The accused, Vinay Kumar Tiwari and K.K. Sharma, were charged with many serious crimes under India's main criminal law. These included rioting, murder, attempted murder, robbery, and planning a criminal act. They also faced charges under other laws related to criminal groups and explosives. It is claimed that they secretly planned to leak information about the police raid to Dubey. This allowed the criminals to be ready. It is also claimed that both officers did not properly help the police. They failed to tell the police force that the criminals were ready to fight back with advanced weapons. The accusation against the accused is that they had a close, friendly relationship with the criminal Vikas Dubey. He and his gang ran many types of organized crimes and were living and succeeding in the area covered by the police station where both officers worked. The police officer investigating the case talked to several witnesses. They spoke about the close relationship between the accused officers and the criminal Vikas Dubey and his gang. Submissions made before the Court The government's lawyer told the court that Vikas Dubey had said before his death that he knew about the raid beforehand. By looking at phone call records, the government's lawyer argued that on the day of the incident, before it happened, the accused called each other. This way of calling each other was very unusual compared to the past month. It was also argued that the accused made many calls to Dubey before the event. Importantly, it was also argued that the accused, K.K. Sharma, gave information to the gangster and was helping him as his agent. Because of this, he purposely stayed at the police station on the day of the raid. Lastly, it was said that Vinay Tiwari, along with his team members, did not come to help the team at any point. Court's observations First, the Court noted that it was clear the accused, who worked at the same police station, should not have had any work-related connection with the gangster and his group. Calling him on a mobile phone is certainly an important detail that can be used in the trial. Further, the court said that the type of crime and how much they are to blame is very serious, evil, shocking, and something that hasn't happened before. The Court added: "It is also clear that the main criminals knew about the police raid beforehand. It seems, based on these facts, that this information came from the police. This not only made the main criminals aware but also gave them a full chance to get ready for an attack and commit a terrible crime. In this crime, 8 police officers, including their leader, were shot and died. The attack was so sudden that the police could not defend themselves or fight back and could do nothing. The accusation against the accused is that they secretly planned the crime with the main criminal because they were close to him and were loyal. It is also believed they wanted to get back at the Circle Officer due to a personal disagreement." Lastly, to decide to refuse their request to be released on bail, the court considered the following points: The seriousness of the crime and how ready the gangster Vikas Dubey and his group were; Vikas Dubey's statement to the investigating officer before his death that he knew about the raid beforehand; The behavior of the accused before and during the event; Vinay Kumar Tiwari, even though he was leading one team, did not provide any help. He also did not get hurt, which showed he did nothing; and K.K. Sharma purposely stayed out of the raid. The accusation is that he was left at the police station on purpose to give information to the gangster.
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1. A horrendous tragedy occurred on the night of 2nd and 3rd December 1984, due to the escape of deadly chemical fumes from the factory owned and operated by M/s Union Carbide India Limited (hereinafter referred as ‘UCIL’) in Bhopal. This Court labelled the mass disaster as “unparalleled in its magnitude and devastation and … a ghastly monument to the dehumanizing influence of inherently dangerous technologies”. Union of India has filed the present curative petitions seeking reconsideration of the settlement that was effected in the aftermath of the tragedy. 2. In order to provide remuneration to victims, and to create an institutional framework for disbursal of remedies, the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 (hereinafter referred as ‘the said Act’), was enacted by the Government of India on 20.02.1985. This granted the Central Government an exclusive right to represent and act in place of every person who was entitled to make a claim for compensation. It also empowered the Central Government to institute suits or other proceedings and to enter into a compromise. Consequently, the Bhopal Gas Leak Disaster (Registration and Processing of Claims) Scheme, 1985, was framed in exercise of powers conferred under Section 9 of the said Act. This Scheme dealt with the procedure for filing and processing of claims made to the Welfare Commissioner as per Section 6 of the said Act. 3. Thereafter, several actions for compensation were brought in the United States District Court for the Southern District of New York against Union Carbide Corporation (hereinafter referred as ‘UCC’). UCC was a New York based corporation which owned 50.9% stock in UCIL at the time of the tragedy. UCC resisted the jurisdiction of the New York Court on grounds of forum non conveniens, claiming that it had subjected itself to the Courts of India. Judge Keenan allowed this plea vide order dated 10.06.1986 and dismissed the consolidated action on the basis of several factors, including the presence of witnesses and evidence in India. The order however recorded UCC’s statement that it shall consent to submit to the jurisdiction of the Courts of India. 4. As a result of the same, a suit was filed by the Union of India against UCC before the District Judge, Bhopal, seeking compensation of approximately US $ 3.3 billion. Being apprehensive about funds being made available for compensation to victims, the Union sought interim compensation from UCC. This prayer received a favourable consideration from the District Judge, who passed an interim order on 17.12.1987 directing UCC to deposit a sum of Rs. 350 crores by way of interim compensation. However, in a revision petition(s) filed by UCC, this amount was reduced to Rs. 250 crores by the Madhya Pradesh High Court vide an order dated 04.04.1988. 5. Being aggrieved by this order, both contesting parties i.e. Union of India and UCC, filed SLPs before this Court. In terms of orders passed in those proceedings, the parties endeavoured to negotiate a settlement, possibly with a little nudge from the Court. The endeavour was successful and UCC agreed to pay a sum of US $ 470 million to the Union of India in settlement of all claims, rights, and liabilities relating to and arising out of the Bhopal Gas disaster. The terms of the settlement were set out in the orders of this Court passed on 14th and 15th February, 1989. This Court observed that there had been careful consideration for several days to the facts and circumstances placed before the Court by the parties; including the pleadings, data, material relating to proceedings in the Courts of USA, the offers and counter offers between the parties at different stages of various proceedings, the complex issues of law and facts raised, as well as the enormity of human suffering occasioned by the Bhopal Gas disaster and the pressing urgency to provide immediate and substantial relief to victims of the disaster. Thus, it was observed that a sum of US $ 470 million would be just, equitable, and reasonable. This was to be paid on or before 31.03.1989 and all civil and criminal proceedings were to be closed in the 6. A detailed order setting out the reasons that persuaded this Court to make the order of settlement was passed thereafter on 04.05.1989, reported as Union Carbide Corporation v. Union of India & Ors.1 We would like to highlight a few aspects of the said order. This Court noted that the basic consideration motivating the settlement was the compelling need for urgent relief. It was considered necessary to grant immediate remedy as it was a question of survival for the thousands of persons rendered destitute by the ghastly disaster. Regarding the quantum of the settlement, this Court added a caveat in paragraph 14 of the said order. It was observed that if any material was placed before the Court for drawing a reasonable inference that UCC had earlier offered to pay any sum higher than the out-right down payment of US $ 470 million; it would result in the Court initiating a suo motu action, requiring the parties to show why the settlement should not be set aside and the parties relegated to their respective original positions. Discussion then proceeded to the reasonableness of the settlement amount. It was opined that the question of reasonableness need not necessarily be construed on the basis of an accurate assessment by way of adjudication. Instead, the quantum was a broad and general estimate. What was significant was whether such settlement would avoid delays, uncertainties, and assure immediate payment. The Court considered it appropriate to proceed on some prima facie undisputed figures of cases of death and of substantially compensatable personal injuries. This Court referred to the factual scenario emanating from the High Court order dated 04.04.1988, where it was recorded that as per the Union of India, a total number of 2660 persons died and between 30,000 to 40,000 sustained serious injuries as a result of the disaster. The figures before the Supreme Court at the time were stated to be about 3000 fatal cases, and the number of grievous and serious personal injuries was about 30,000, as verifiable from hospital records. In estimating the amount of compensation, this Court set out the following basis in paragraph 24, which “24. So far as personal injury cases are concerned, about 30,000 was estimated as cases of permanent total or partial disability. Compensation ranging from Rs. 2 lakhs to Rs. 50,000 per individual according as the disability is total or partial and degrees of the latter was envisaged. This alone would account for Rs. 250 crores. In another 20,000 cases of temporary total or partial disability compensation ranging from Rs. 1 lakh down to Rs. 25,000 depending on the nature and extent of the injuries and extent and degree of the temporary incapacitation accounting for a further allocation of Rs. 100 crores, was envisaged. Again, there might be possibility of injuries of utmost severity in which case even Rs. 4 lakhs per individual might have to be considered. Rs. 80 crores, additionally for about 2000 of such cases were envisaged. A sum of Rs. 500 crores approximately was thought of as allocable to the fatal cases and 42,000 cases of such serious personal injuries leaving behind in their trail total or partial incapacitation cither of permanent or temporary character.” 7. Outlays were also made for specialised institutional medical treatment (Rs. 25 crores) and provision for cases which were not of permanent/temporary disabilities but of minor injuries, loss of personal belongings, loss of livestock etc. (Rs. 225 crores). The interest accruing on the corpus of settlement was also taken into account, being 14% to 8. On the aspect of the aforesaid broad allocations, it was clearly observed that even if a particular case was found to fall within such broad categories, the determination of actual compensation payable to the claimant had to be done by the authorities under the said Act. However, the Court concluded that if the total number of cases of death or disability became so large so as to counter the ‘basic assumptions underlying the settlement’, then it would not hesitate to exercise its powers of review. 9. The next round in the matter related to an endeavour by private parties to open the settlement by filing a review, inter alia on the powers of this Court to record a settlement. A Constitution Bench examined this issue in the Union Carbide Corporation & Others v. Union of India & Others. 2 The settlement was upheld with one caveat. The extinguishment of criminal liabilities by the settlement was held to not be appropriate and thus, that aspect of the original order was reviewed. As to the need to arrive at a settlement, Ranganath Mishra, J. (as he then was) detailed the factors that had guided this Court. The Court had to be cognizant of the fact that the Indian assets of UCC, through UCIL were around Rs. 100 crores at the time. Thus, any decree in excess of that amount would have to be executed in the courts of USA. If such decree were determined on the basis of prevailing law in India, i.e. absolute liability (different from the accepted basis in the USA, i.e. strict liability); the decree would be open to challenge on the grounds of due process and may not be executable. On this aspect, the principal judgment of the majority laid emphasis on balancing factors such as the need for expedient relief, as recorded in the original judgment. In so far as the present controversy before us is concerned, we would like to flag the Court’s observations on the path to be followed if the compensation is found to be inadequate. These are set out in paragraph 198 of Union Carbide Corporation & Others v. Union of India & Others3, which reads as under: “198. After a careful thought, it appears to us that while it may not be wise or proper to deprive the victims of the benefit of the settlement, it is, however, necessary to ensure that in the — perhaps unlikely — event of the settlement fund being found inadequate to meet the compensation determined in respect of all the present claimants, those persons who may have their claims determined after the fund is exhausted are not left to fend themselves. But, such a contingency may not arise having regard to the size of the settlement fund. If it should arise, the reasonable way to protect the interests of the victims is to hold that the Union of India, as a welfare State and in the circumstances in which the settlement was made, should not be found wanting in making good the deficiency, if any. We hold and declare accordingly.” 10. The aforesaid would show that the burden would fall on the Union of India, as a welfare state, to protect the interest of the victims. It is to be noted that Ahmadi J., dissented on this aspect of liability of the Union. However, naturally, the majority view 11. Another aspect noted in the review was qua the members of the population of Bhopal who were put at risk; and who though asymptomatic at the time and not having filed for compensation, might become symptomatic in future. In addition, care had to be taken of unborn children of mothers exposed to toxicity, where such children later develop congenital defects. For such an eventuality, a medical group insurance cover was envisaged. This is set out in paragraph 207 of Union Carbide Corporation & Others v. Union of India & Others4, which reads as under: “207. We are of the view that such contingencies shall be taken care of by obtaining an appropriate medical group insurance cover from the General Insurance Corporation of India or the Life Insurance Corporation of India for compensation to this contingent class of possible prospective victims. There shall be no individual upper monetary limit for the insurance liability. The period of insurance cover should be a period of eight years in the future. The number of persons to be covered by this Group Insurance scheme should be about and not less than one lakh of persons. Having regard to the population of the seriously affected wards of Bhopal city at the time of the disaster and having regard to the addition to the population by the subsequent births extrapolated on the basis of national average of birth rates over the past years and the future period of surveillance, this figure broadly accords with the percentage of (sic the) population of the affected wards bears to the number of persons found to be affected by medical categorisation. This insurance cover will virtually serve to render the settlement an open ended one so far as the contingent class of future victims both existing and after-born are concerned. The possible claimants fall into two categories: those who were in existence at the time of exposure; and those who were yet unborn and whose congenital defects are traceable to MIC toxicity inherited or derived congenitally.” 12. There is no dispute that the compensation was deposited within time. 13. Subsequently, certain endeavours were made on behalf of victims from time to time to open up the settlement. However, these were opposed by the Union of India and were not successful. The most recent such attempt was Bhopal Gas Peedith Mahila Udyog Sangathan & Anr. V. Union of India & Ors.5 14. We are confronted here with an application filed under this Court’s curative jurisdiction by the Union of India 19 years post the settlement (i.e. in 2010) seeking to reopen the same. It is noteworthy that the Union chose not to file the review petitions which culminated in this Court’s order dated 02.05.1989. Naturally, the present petitions have been strongly opposed by UCC, whereas groups stated to be representing the victims have endeavoured to ride piggyback on the curative petitions. 15. The curative petitions are broadly predicated on account of “wrong assumption of facts and data” which undergirded the quantum of the settlement. Thus, the plea is that this ‘incompleteness of facts’, particularly with respect to the number of victims, has vitiated the settlement itself. On this basis, the settlement amount needs to be reexamined by this Court. Nevertheless, we may note that the Union of India was quite conscious of the fact that if the settlement were to be reopened, it would result in a revival of the suit, something which the Union has not even claimed. What the Union of India claims in essence is to top up the settlement i.e. maintain the factum of the settlement but to increase the amount as canvassed by Mr. R. Venkataramani, the learned Attorney 16. The Union of India’s claims, as set out in the petitions, are based on three “Claim – I: Claim on account of incorrect and wrong assumption of facts and data in the impugned judgments and orders on following grounds: (i) Error in computation of Death Cases – Court recorded theestimated number of death cases was 3,000 whereas actual figure of death is 5,295 cases. (ii) Error in computation of Temporary Injury Cases – Courtrecorded the estimated number of temporary disability cases was 20,000 whereas actual figure of temporary disability is 35,455 (iii) Error in computation of Minor Injury Cases – Court recordedthat the estimated number of Minor Injury cases was 50,000 whereas actual figure of Minor Injury is 5,27,894 cases. (iv) Other Cases – In certain categories (viz. Permanent disability,utmost severe injuries, loss of property and loss of livestock), the actual number assumed by the court has been found to be on the higher side resulting in the extra provision of compensation in those categories.” 17. The total amount claimed under this category was Rs. 675.96 crore at the time of filing the curative petitions. This Court vide order dated 11.10.2022 requested for the latest figures available as on the said date. These details have been set out in tabular form 18. The last column of the chart shows the additional amount required to be paid. While there is an increase in the amount required for compensation for death and temporary disability, there is also a decrease in the amounts required for cases of permanent disability and utmost severe cases, as also for loss of property and loss of life. This may have been the result of some changes in the categorisation of cases on account of the available material. The real increase is on account of minor injuries where it is stated that the additional amount required is of Rs. 955.45 crores. Undoubtedly, a decision was taken by the Government of India on 08.09.1992 to increase the amount of compensation to victims in view of representations filed by various social action groups. “Claim – II: Claim of Rs.1,743.15 cr. on account of actual expenditure incurred by the State towards relief and rehabilitation measures.” 19. The aforesaid claim was further updated to Rs. 4,949.67 crores. “Claim – III: Claim of Rs.315.70 crore on account of environment degradation.” 20. The updated amount under this category is Rs. 486.78 crores. 21. The Union of India has also claimed that since the revised amount is being claimed a number of years after the settlement; several aspects, such as the devaluation of the rupee, interest rate, purchasing power parity, and the inflation index ought to be taken into account. These considerations were pleaded in alternative and are summarized in the * Calculations based on Yearly LIBOR Calculations by applying Consumer Price Index (CPI) for industrial workers Calculations based on 7% Compound Interest 22. The curative petitions were strongly opposed by Mr. Harish Salve, learned senior counsel appearing for UCC. 23. The preliminary objection was on the very maintainability of a curative petitions after two decades of the settlement. It was submitted that this was in breach of the principles enshrined in Rupa Ashok Hurra v. Ashok Hurra & Anr. 6 , wherein this Court had specified very limited contours for its curative jurisdiction: “51. Nevertheless, we think that a petitioner is entitled to relief ex debito justitiae if he establishes (1) violation of principles of natural justice in that he was not a party to the lis but the judgement adversely affected his interests or, if he was a party to the lis, he was not served with notice of the proceedings and the matter proceeded as if he had notice and (2) where in the proceedings a learned Judge failed to disclose his connection with the subject-matter or the parties giving scope for an apprehension of bias and the judgment adversely affects the petitioner.” 24. It was submitted that the present curative petitions did not fall under any of these parameters. Counsel for UCC also highlighted another procedural deficiency on the basis of paragraph 52 of Rupa Ashok Hurra,7 wherein the petitioner is required to specifically aver that the grounds mentioned in the curative petition had been taken in the review petition and subsequently dismissed by circulation. Since Union of India had not filed review petition(s), the curative petitions ought to be thrown out at the threshold. 25. In response, the Learned Attorney General contended that it was this Court’s prerogative to chart a new course in terms of its curative jurisdiction, and to not limit itself to the extant norms specified in Rupa Ashok Hurra.8 26. On this preliminary point, we may note that a curative petition relates to a re- examination of a final judgment of this Court, particularly one that has already undergone such re-examination through the Court’s review jurisdiction. Since this Court’s review jurisdiction itself is so restrictive, we find it difficult to accept that this Court can devise a curative jurisdiction that is expansive in character. 27. On the facts of this case, we have already noticed that when review petitions were filed against the orders recording the settlement, the Union of India sought to support the same. However, the Union subsequently opposed all other applications filed for reopening the settlement. We understand that such a strategy was adopted as the Union of India’s endeavour is not to set aside the settlement but merely to ‘top up’ the settlement amount. 28. We have great hesitation in allowing such a prayer and granting such sui generis relief through the means of curative petitions. Although this Court in Rupa Ashok Hurra9 chose not to enumerate all the grounds on which a curative petition could be entertained; the Court was clear in observing that its inherent power ought not to be exercised as a matter of course, and that it should be circumspect in reconsidering an order of this Court that had become final on dismissal of the review petition. Nevertheless, looking at the nature of the matter before us, it would be advisable to also examine the curative petition(s), apart from the aforesaid preliminary objection. 29. Turning to the objections on merits of the claims in the curative petitions, counsel for UCC emphasised that the US$ 470 million (Rs. 750 crore), required to be deposited were so deposited and, thus, if the settlement is to be set aside, then the only consequence would be to revive the suit. As a corollary, the Union of India would be required to lead evidence to establish UCC’s liability, and UCC would be entitled to have US$ 470 million remitted back to it by the Union of India with interest. 30. It was pointed out that an endeavour was made in the year 2007 by way of interlocutory applications to seek enhancement of the settlement fund by private organisations. This prayer was rejected by this Court in Bhopal Gas Peedith Mahila Udyog Sangathan10 on the ground that re-examination of the settlement could not be done as the issue had already been decided. With regards to individual victims and organisations, any grievances towards the amount of compensation had to be taken up before the appropriate authorities constituted under the said Act. It is noteworthy that the Union of India had opposed the plea of the private parties, and had taken a stand before this Court that claims had been adjudicated and compensation had been paid in terms of the scheme devised under the said Act. 31. The aforesaid was the latest endeavour prior to the filing of the present curative petitions. However, even before this, certain private organisations had filed interlocutory applications for disbursal of the surplus amount left from the settlement fund. This Court in Union Carbide Corporation Ltd. V. Union of India11 observed that approximately Rs. 1,503.01 crores from the settlement fund were available as on that date, and thus ordered that this amount be distributed on pro rata basis to those persons whose claims had been 32. There appear to be two reasons for the growth of the fund – (a) interest on it and (b) more importantly, an exchange rate fluctuation in favour of the US Dollar. We may hasten to add that the learned Attorney General was correct in submitting that UCC could not have taken benefit of a hypothetical fluctuation in the opposite direction, i.e. in favour of the Rupee. Nevertheless, the fact remains that the settlement fund, and the disbursement from the same underwent a significant increase considering the lapse of 33. Next, learned counsel for UCC contended that the language of this Court’s orders dated 14.02.1989 and 15.02.1989 left no doubt as to the comprehensive nature of the settlement. UCC had agreed to the settlement even without a finding as to its liability. UCC’s Indian holding, i.e. UCIL had been wound up. The settlement was accepted only on the basis that it was an overall settlement, which ended its potential exposure towards any legal proceedings. As a final stamp upon the settlement; this Court’s order dated 15.02.1989 had imposed a duty on the Union of India and the State of Madhya Pradesh to ensure that any suit, claim, or civil complaint filed in the future against UCC would be defended by the Union of India and would be disposed of in terms of the said order. 34. It was urged that the review judgment had confirmed the ‘basic assumptions underlying the settlement’ and the settlement itself had been upheld, save the aspect of closure of criminal proceedings. Moreover, the issues sought to be raised in the present curative petitions were in fact raised in the review petitions filed by the private parties and were finally decided by the order of this Court dated 03.10.1991. 35. Thus, it was contended that the substance of Union of India’s Claim-I, i.e. on account of error in computation of deaths, injuries etc. had actually been addressed by this Court in its review judgment. This Court had dealt with the risk of asymptomatic individuals later becoming ill and had directed the Union of India to obtain insurance cover for eight years and to provide free medical monitoring and treatment of victims. In case of any deficit in the settlement fund, the responsibility was placed on the Union of India as a welfare State to fulfil such deficiency. Mr. Salve emphasised that it would be hazardous to belittle the advantages of a settlement by questioning it on the anvil of adequacy or fairness, considering the complexity of the matter and the need to protect victims from the prospects of a protracted, exhausting, and uncertain litigation. 36. It was further contended that the settlement decree passed by this Court was not an adjudication upon either UCC’s liability or the quantum of compensation payable, as the suit never went to trial. A consensual settlement cannot be unilaterally enhanced without the consent of both the parties. The Union of India has not brought forth any allegation against the settlement or any ground to set it aside. The Union was fully aware of the consequences of setting aside the settlement and thus, restricted their petitions to a prayer for ‘topping up’ the settlement amount. 37. It was also emphasised that there was no basic assumption that could be considered to have gone wrong. In the table reproduced above, it would appear that the only head in which there was any major change was with respect to ‘minor injuries’. This however resulted from the Union’s own categorisation of injuries suffered in the aftermath of the tragedy, and their decision to expand the coverage of relief to a larger number of individuals. This was possible only because of the large amount of funds available with the Union, as is evident from the fact that this Court had in its order dated 19.05.2004 noted the availability of more than Rs. 1,500 crores available with the RBI and consequently awarded disbursal of the same on a pro rata basis. The Welfare Commissioner had recorded that after paying Rs.1,548.95 crores in the first round, a further Rs.1,509.14 crores had been disbursed on pro rata basis. Thus, a total of over Rs.3,000 crore had been paid to the victims. 38. In fact, it is admitted before us by the learned Attorney General that a sum of Rs. 50 crore was still lying with the Reserve Bank of India to take care of victims. 39. We may note that the intervenors, who are organisations representing victims, have also raised a similar line of arguments and their prayer is also to enhance the settlement amount. Mr. Sanjay Parekh, learned senior counsel, while seeking enhancement appeared to mirror the arguments of the learned Attorney General. In addition, he prayed for digitisation of medical records for the benefit of victims who had been attended to in the hospitals so as to enable a fair assessment of their injuries. This aspect is however stated to be pending before the Madhya Pradesh High Court. 40. We have bestowed our anxious consideration to the arguments put forth by both sides. While we sympathize with the victims of the awful tragedy, we are unable to disregard settled principles of law, particularly at the curative stage. Mere sympathy for the sufferers does not enable us to devise a panacea; more so while looking into the nature of dispute, and the multifarious occasions on which this Court has applied its mind to the settlement. 41. The very basis for the original settlement was the need to provide immediate succour to the victims - through medical relief, rehabilitation measures, setting up of facilities etc. This has been clearly observed by this Court at every step; be it in the orders recording the settlement, the order detailing reasons for the same, and the review judgment. We thus do not appreciate the endeavour by Ms. Karuna Nundy, counsel for the intervenors, in making out a case that there was a ‘midnight settlement’ whereby a fraud was played upon this Court and the Union. The Court was clearly occupied with the aspect of a settlement being entered into, and it was found, after a number of sittings and rounds of hearings, that this was the most appropriate course of action. 42. On the aspect of adequacy, we must also take note of the factual scenario which emerges as per the figures of the Union itself. Except for cases of minor injuries, the settlement amount was actually in excess as is apparent from the table reproduced above. As far as the issue of minor injuries is concerned, it appears from the Union’s own affidavit in IA Nos. 48-49/2004 in Civil Appeal No. 3187-88 of 1998 that in cases of injury, Rs. 50,000 to Rs. 4 lakh (original and pro rata compensation) and an additional Rs. 50,000 were paid in cases of mere presence in the gas affected areas of Bhopal on the fateful night. It has also been admitted in the said affidavit that the amount of compensation for all categories was allocated on the higher side, and after disbursal of the leftover amount on a pro rata basis, the overall rate of compensation has in fact been doubled. Suffice for us to say that as per the learned Attorney General, a figure of Rs. 50 crore remains with the Reserve Bank of India lying undisbursed. 43. We are conscious of the fact that the exchange rate worked in the Union’s favour as the exchange rate of the Dollar rate escalated. Some interest on the settlement amount also came in. This has allowed the Union to work out a more wholesome allotment for the 44. We are cognizant that no amount is truly adequate when such incidents occur. Nevertheless, a monetary determination had to take place, and the only compensatory mechanism known to common law is that of a lump-sum settlement. This was deemed far more preferable to the alternative option, whereby the suit would be allowed to be tried without a reasonable expectation of knowing when the trial would come to an end. This determination would of course be subject to further appeals and the process of execution, particularly as UCIL’s assets in India were only about Rs. 100 crores. Without a settlement, immediate funds would not have been available for the victims. All these factors weighed with this Court while arriving at the settlement. 45. It is the Union’s own stand that the Commissioner has adjudicated all claims through procedure established by law where the possibility of appeal was provided. Further, it has been admitted in the proceedings culminating in this Court’s order dated 19.07.2004 that the amount of settlement was found to be in surplus of the actual requirement, and thus the claimants had been “provided compensation that was more than what was reasonably awardable to them under law”. This reinforces the position that the settlement amount was sufficient to compensate the claimants. 46. The Union has filed the present curative petitions seeking to reopen the settlement after opposing attempts by private parties to do so. The scenario arising in case of a shortage was clearly outlined in the review judgment, i.e. the responsibility was placed on the Union of India, being a welfare State to make good the deficiency and to take out the relevant insurance policies. Surprisingly, we are informed that no such insurance policy was taken out. This is gross negligence on part of the Union of India and is a breach of the directions made in the review judgment. The Union cannot be negligent on this aspect and then seek a prayer from this Court to fix such liability on UCC. 47. Union of India’s claim for a ‘top up’ has no foundations in any known legal principle. Either a settlement is valid or it is to be set aside in cases where it is vitiated by fraud. No such fraud has been pleaded by the Union, and their only contention relates to a number of victims, injuries, and costs that were not contemplated at the time the settlement was effected. There is also specifically no pleading under the heading of Claims 2 and 3 that can be said to be admissible, or one that could not be envisaged at the stage of settlement. It was known that medical facilities would have to be extended to rehabilitate people and there was bound to be environmental degradation. In fact, it is the UCC’s allegation that the Union and State Governments did not proactively detoxify or decomission the site, thereby aggravating the problem. In any case, this cannot be a ground to seek annulment of the compromise, particularly as the settlement had to be reached in an expedient manner. The learned Attorney General’s response has been that a method for ‘topping up’ the settlement amount be devised under Article 142 of the Constitution of India. We believe this would not be an appropriate course of action or a method to impose a greater liability on UCC than it initially agreed to bear. 48. We are equally dissatisfied with the Union being unable to furnish any rationale for raking up this issue more than two decades after the incident. Even assuming that the figures of affected persons turned out to be larger than contemplated earlier, an excess amount of funds remained available to satisfy such claims. The Welfare Commissioner has in fact held in its order dated 31.01.2009 that on including the pro rata compensation, nearly six times the amount of compensation has been disbursed to victims in comparison with Motor Vehicle Accident claims. This order came in an application filed by organisations who sought enhancement of their claim amounts due to fluctuation in the conversion value of the Dollar vis-à-vis the Rupee prevailing at the time of the settlement in 1989. A sum of Rs.50 crore lying with the RBI shall be utilised by the Union of India to satisfy pending claims, if any, in accordance with the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 and the Scheme framed thereunder. 49. Providing closure to a lis is also a very important aspect. This is more so in the context of the scenario faced by the Indian judiciary, where delay is almost inevitable. This concern would be further amplified in respect of a tort claim such as the present one - if evidence were to be led for each claimant, this would open a pandora’s box in UCC’s favour and would only be to the detriment of the beneficiaries. The money was needed in the immediate aftermath of the tragedy and not after three decades. 50. Thus, finality was reached at an early stage by way of the settlement. Endeavours to reopen the same proved unsuccessful. Now the curative petitions have been filed by the Union of India having not filed review petitions. Private parties who are here before us seek to ride on the coattails of the Union. This is not something we can countenance. 51. We are thus of the view that for all the aforesaid reasons the curative petitions cannot be entertained and we thus dismiss it leaving the parties to bear their own costs.
A special group of Supreme Court judges recently rejected a legal appeal from the Indian government. The government wanted to change an old agreement with Union Carbide Corporation (now Dow Chemicals) to get more money for the victims of the 1984 Bhopal Gas Tragedy. The Court explained that such agreements can only be canceled if there was fraud, but the Indian government had not claimed any fraud. However, the Court did order the government to use 50 crore rupees, which are held by the central bank, to pay any remaining victim claims. The group of judges, who had waited to announce their decision since January 12, 2023, stated that the government's special request was not based on proper legal rules. The judges included Justice S.K. Kaul, Justice Sanjiv Khanna, Justice A.S. Oka, Justice Vikram Nath, and Justice J.K. Maheshwari. The Court pointed out that the Indian government itself had failed to buy insurance policies, even though the Supreme Court had told it to. This insurance was meant to cover any missing compensation. The judges called this a serious failure of duty by the government and against the court’s earlier decision. They stated that the government could not be careless about this and then ask the Court to blame Union Carbide for it. The Court further expressed its disappointment with the Indian government for not giving a good reason for bringing up this issue more than twenty years after the accident. The Court decided that the government's request for extra compensation wasn't based on legal rules. The judges noted, "Either an agreement is valid, or it has to be made invalid because of fraud. No such fraud has been claimed by the Indian government." The Court understood that the government's case was based on the idea that there were more victims and injuries than expected when the agreement was made. However, the judges noted that damage to the environment and the need for medical help to allow people to recover were expected. Union Carbide also claimed that the Indian government and the state government didn't quickly clean up the area, which made the problem worse. In any case, the Court noted that these were not reasons to ask for more money now. Even if there are more claims than expected, extra money is still available to pay those claims. The Court noted that the government's position is that the Commissioner judged all claims fairly, following the law. Also, during court proceedings that finished in 2004, it was agreed that the money provided was enough for what was actually needed. This means the victims received more than fair payment. This further supports the idea that the original agreement amount was sufficient. In 1989, Union Carbide agreed to pay 470 million US dollars to the Indian government to settle all claims and legal responsibilities from the Bhopal Gas disaster. The details of this agreement were written in Supreme Court orders on February 14th and 15th, 1989. Later, in 1991, a special group of judges officially approved this agreement after private groups asked for a review. Arguments Over three days, the judges heard points made by the government's top lawyer, Mr. R. Venkataramani, on behalf of the Indian government. They also heard from lawyers like Ms. Karuna Nundy and Mr. Sanjay Parikh, who were speaking for groups and victims of the disaster. Their points were argued against by a senior lawyer, Mr. Harish Salve, who represented Dow Chemicals. Right from the start, the judges questioned what such a special request could achieve. They worried that the Indian government was trying to change or add to an agreement that was reached a long time ago, in 1989. The Attorney General explained the government's position, saying the compensation amount was too little and needed to be changed because of new events. The judges were surprised that it took the Indian government 25 years to realize the compensation set in 1989 was not enough. Justice Kaul pointed out that the agreement in 1989 was made between the company and the Indian government, two powerful parties. So, no one was forced into it. The judges also stressed at different times during the hearing that a part of the compensation, about 50 crore and 25 lakh rupees, was still held by India's central bank. Mr. Salve told the judges that the Indian government's arguments in the special request went beyond what was discussed in the first lawsuit. He clearly stated that problems like victim support, recovery, and getting rid of dangerous waste were not part of the original case. However, the Attorney General strongly asked the judges to give more compensation because of how unusually large and serious the disaster was. Justice Oka pointed out that in an earlier review decision, the Supreme Court had said that if there was a missing amount in compensation, then the government should pay it. He also noted that in its 1991 decision, the Supreme Court had told the Indian government to buy insurance policies for at least 100,000 people to cover future claims. However, it seemed that the government had not done this. Justice Kaul also expressed his displeasure that the Indian government had failed to do something that could have helped the affected families greatly. On the third day, Ms. Nundy began making her points. Her arguments were based on the idea that there was a serious failure of justice and that the company committed fraud by hiding important facts central to the agreement. The judges felt that her request would mean restarting the entire court case and went beyond what a special request could cover. Mr. Parikh argued that the Supreme Court kept full control over the agreement process, and so the Court should make sure it doesn't lead to clear unfairness. But the judges did not agree with this point. They stated that the agreement was fully worked out by the two sides, and the Court never suggested how much money to pay. It only wrote down the amount they had agreed to. Mr. Salve, on behalf of Union Carbide Corporation (now Dow Chemicals), stated firmly that a complete and final agreement was reached between his client and the Indian government in 1989, and there was no reason to change it. The special request filed by the Indian government in December 2010 argued that the earlier agreement was based on wrong guesses about the number of deaths, injuries, and losses. It also didn't consider the later damage to the environment. According to the request, the earlier figures were 3,000 deaths and 70,000 injuries, but the actual figures were 5,295 deaths and 527,894 injuries. In 1985, the Parliament passed a law called the Bhopal Gas Leak (Processing of Claims) Act. This law allowed the Indian government to represent the victims of the disaster in court. Initially, the Indian government had filed a case in a US court in New York, asking for about 3 billion dollars in compensation. That case was rejected, and the court said the case should be heard in Indian courts. After that, a lawsuit was started in a local court in Bhopal. A temporary order was given by the local judge, telling Union Carbide to pay 350 crore rupees to the gas victims. Union Carbide, the company involved, went to the High Court in Madhya Pradesh. It disagreed with a decision made by an earlier judge. The High Court agreed that money should be paid to victims. However, it lowered the amount from 350 crore rupees to 250 crore rupees. Both Union Carbide and the Indian government then took their case to the Supreme Court. The Supreme Court asked both sides to try and agree on a payment. In 1989, Union Carbide and the Indian government reached an agreement, which the Supreme Court approved. Union Carbide paid 470 million dollars in this agreement. Later, some groups asked the Supreme Court to review its decision, but the Court refused to increase the payment. In 1991, the government tried to undo the agreement, but this request was denied. After almost 19 years, in 2010, the Indian government filed a special request, called a curative petition. A special group of Supreme Court judges is now deciding this request. Victims also filed several group lawsuits against Union Carbide in courts in the United States. When this case first came before the special group of judges in September 2022, they asked Mr. Tushar Mehta, a senior government lawyer, to find out the central government's current position on the special request it filed over ten years ago. In October 2022, another senior government lawyer, the Attorney General, told the judges that the government wanted to continue with the special request. So, the judges allowed the government to represent the victims of the Bhopal gas leak. However, the judges did not allow other non-governmental organizations to submit written arguments. But they still allowed these groups to speak in court. [Case Status: Union of India And Others v. Union Carbide Corporation And Others. Curative Petition (C) No. 345-347/2010] Bhopal Gas Tragedy - The Supreme Court rejected the government's special request to get more money from Union Carbide. This request aimed to undo the 1989 agreement, which the Supreme Court had already approved. The government had filed this new request after previously disagreeing with private groups trying to reopen the settlement. As a government that cares for its people, the Union of India was supposed to cover any missing funds and buy relevant insurance policies. Surprisingly, we were told that no such insurance policy was bought. The Supreme Court called this a serious failure by the Indian government and a breach of earlier court orders. The government cannot be careless in this way and then ask the Court to make Union Carbide pay for these added costs. - Paragraph 46 Bhopal Gas Tragedy - While we feel for the victims of this terrible event, we cannot ignore basic legal rules. This is especially true at this late stage of a special request. Simply feeling sorry for those who suffered does not allow us to create a perfect solution. This is even more true given the nature of this disagreement and how many times the Supreme Court has already looked at the agreement. - Paragraph 40 Bhopal Gas Tragedy - The Indian government's claim for extra money has no basis in any known legal rule. An agreement is either valid, or it can be canceled if there was fraud. The government did not claim there was any fraud. Their only argument was about a higher number of victims, injuries, and costs that they did not expect when the agreement was made. We are also unhappy that the government could not explain why it brought up this issue again more than twenty years after the incident. - Paragraph 47, 48 Bhopal Gas Tragedy - The Indian government must use the 50 crore rupees held by the Reserve Bank of India to pay any remaining claims. This must be done according to the 1985 law about processing claims from the Bhopal Gas Leak Disaster and the plan created under that law. - Paragraph 49 Bhopal Gas Tragedy - Bringing a legal case to an end is also very important. This is especially true in the Indian court system, where delays are almost certain. This concern would be even greater for a claim about harm caused by someone's actions, like this one. If evidence had to be collected for each person claiming damages, it would cause many problems for the victims and likely benefit Union Carbide. - Paragraph 50
1. A horrendous tragedy occurred on the night of 2nd and 3rd December 1984, due to the escape of deadly chemical fumes from the factory owned and operated by M/s Union Carbide India Limited (hereinafter referred as ‘UCIL’) in Bhopal. This Court labelled the mass disaster as “unparalleled in its magnitude and devastation and … a ghastly monument to the dehumanizing influence of inherently dangerous technologies”. Union of India has filed the present curative petitions seeking reconsideration of the settlement that was effected in the aftermath of the tragedy. 2. In order to provide remuneration to victims, and to create an institutional framework for disbursal of remedies, the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 (hereinafter referred as ‘the said Act’), was enacted by the Government of India on 20.02.1985. This granted the Central Government an exclusive right to represent and act in place of every person who was entitled to make a claim for compensation. It also empowered the Central Government to institute suits or other proceedings and to enter into a compromise. Consequently, the Bhopal Gas Leak Disaster (Registration and Processing of Claims) Scheme, 1985, was framed in exercise of powers conferred under Section 9 of the said Act. This Scheme dealt with the procedure for filing and processing of claims made to the Welfare Commissioner as per Section 6 of the said Act. 3. Thereafter, several actions for compensation were brought in the United States District Court for the Southern District of New York against Union Carbide Corporation (hereinafter referred as ‘UCC’). UCC was a New York based corporation which owned 50.9% stock in UCIL at the time of the tragedy. UCC resisted the jurisdiction of the New York Court on grounds of forum non conveniens, claiming that it had subjected itself to the Courts of India. Judge Keenan allowed this plea vide order dated 10.06.1986 and dismissed the consolidated action on the basis of several factors, including the presence of witnesses and evidence in India. The order however recorded UCC’s statement that it shall consent to submit to the jurisdiction of the Courts of India. 4. As a result of the same, a suit was filed by the Union of India against UCC before the District Judge, Bhopal, seeking compensation of approximately US $ 3.3 billion. Being apprehensive about funds being made available for compensation to victims, the Union sought interim compensation from UCC. This prayer received a favourable consideration from the District Judge, who passed an interim order on 17.12.1987 directing UCC to deposit a sum of Rs. 350 crores by way of interim compensation. However, in a revision petition(s) filed by UCC, this amount was reduced to Rs. 250 crores by the Madhya Pradesh High Court vide an order dated 04.04.1988. 5. Being aggrieved by this order, both contesting parties i.e. Union of India and UCC, filed SLPs before this Court. In terms of orders passed in those proceedings, the parties endeavoured to negotiate a settlement, possibly with a little nudge from the Court. The endeavour was successful and UCC agreed to pay a sum of US $ 470 million to the Union of India in settlement of all claims, rights, and liabilities relating to and arising out of the Bhopal Gas disaster. The terms of the settlement were set out in the orders of this Court passed on 14th and 15th February, 1989. This Court observed that there had been careful consideration for several days to the facts and circumstances placed before the Court by the parties; including the pleadings, data, material relating to proceedings in the Courts of USA, the offers and counter offers between the parties at different stages of various proceedings, the complex issues of law and facts raised, as well as the enormity of human suffering occasioned by the Bhopal Gas disaster and the pressing urgency to provide immediate and substantial relief to victims of the disaster. Thus, it was observed that a sum of US $ 470 million would be just, equitable, and reasonable. This was to be paid on or before 31.03.1989 and all civil and criminal proceedings were to be closed in the 6. A detailed order setting out the reasons that persuaded this Court to make the order of settlement was passed thereafter on 04.05.1989, reported as Union Carbide Corporation v. Union of India & Ors.1 We would like to highlight a few aspects of the said order. This Court noted that the basic consideration motivating the settlement was the compelling need for urgent relief. It was considered necessary to grant immediate remedy as it was a question of survival for the thousands of persons rendered destitute by the ghastly disaster. Regarding the quantum of the settlement, this Court added a caveat in paragraph 14 of the said order. It was observed that if any material was placed before the Court for drawing a reasonable inference that UCC had earlier offered to pay any sum higher than the out-right down payment of US $ 470 million; it would result in the Court initiating a suo motu action, requiring the parties to show why the settlement should not be set aside and the parties relegated to their respective original positions. Discussion then proceeded to the reasonableness of the settlement amount. It was opined that the question of reasonableness need not necessarily be construed on the basis of an accurate assessment by way of adjudication. Instead, the quantum was a broad and general estimate. What was significant was whether such settlement would avoid delays, uncertainties, and assure immediate payment. The Court considered it appropriate to proceed on some prima facie undisputed figures of cases of death and of substantially compensatable personal injuries. This Court referred to the factual scenario emanating from the High Court order dated 04.04.1988, where it was recorded that as per the Union of India, a total number of 2660 persons died and between 30,000 to 40,000 sustained serious injuries as a result of the disaster. The figures before the Supreme Court at the time were stated to be about 3000 fatal cases, and the number of grievous and serious personal injuries was about 30,000, as verifiable from hospital records. In estimating the amount of compensation, this Court set out the following basis in paragraph 24, which “24. So far as personal injury cases are concerned, about 30,000 was estimated as cases of permanent total or partial disability. Compensation ranging from Rs. 2 lakhs to Rs. 50,000 per individual according as the disability is total or partial and degrees of the latter was envisaged. This alone would account for Rs. 250 crores. In another 20,000 cases of temporary total or partial disability compensation ranging from Rs. 1 lakh down to Rs. 25,000 depending on the nature and extent of the injuries and extent and degree of the temporary incapacitation accounting for a further allocation of Rs. 100 crores, was envisaged. Again, there might be possibility of injuries of utmost severity in which case even Rs. 4 lakhs per individual might have to be considered. Rs. 80 crores, additionally for about 2000 of such cases were envisaged. A sum of Rs. 500 crores approximately was thought of as allocable to the fatal cases and 42,000 cases of such serious personal injuries leaving behind in their trail total or partial incapacitation cither of permanent or temporary character.” 7. Outlays were also made for specialised institutional medical treatment (Rs. 25 crores) and provision for cases which were not of permanent/temporary disabilities but of minor injuries, loss of personal belongings, loss of livestock etc. (Rs. 225 crores). The interest accruing on the corpus of settlement was also taken into account, being 14% to 8. On the aspect of the aforesaid broad allocations, it was clearly observed that even if a particular case was found to fall within such broad categories, the determination of actual compensation payable to the claimant had to be done by the authorities under the said Act. However, the Court concluded that if the total number of cases of death or disability became so large so as to counter the ‘basic assumptions underlying the settlement’, then it would not hesitate to exercise its powers of review. 9. The next round in the matter related to an endeavour by private parties to open the settlement by filing a review, inter alia on the powers of this Court to record a settlement. A Constitution Bench examined this issue in the Union Carbide Corporation & Others v. Union of India & Others. 2 The settlement was upheld with one caveat. The extinguishment of criminal liabilities by the settlement was held to not be appropriate and thus, that aspect of the original order was reviewed. As to the need to arrive at a settlement, Ranganath Mishra, J. (as he then was) detailed the factors that had guided this Court. The Court had to be cognizant of the fact that the Indian assets of UCC, through UCIL were around Rs. 100 crores at the time. Thus, any decree in excess of that amount would have to be executed in the courts of USA. If such decree were determined on the basis of prevailing law in India, i.e. absolute liability (different from the accepted basis in the USA, i.e. strict liability); the decree would be open to challenge on the grounds of due process and may not be executable. On this aspect, the principal judgment of the majority laid emphasis on balancing factors such as the need for expedient relief, as recorded in the original judgment. In so far as the present controversy before us is concerned, we would like to flag the Court’s observations on the path to be followed if the compensation is found to be inadequate. These are set out in paragraph 198 of Union Carbide Corporation & Others v. Union of India & Others3, which reads as under: “198. After a careful thought, it appears to us that while it may not be wise or proper to deprive the victims of the benefit of the settlement, it is, however, necessary to ensure that in the — perhaps unlikely — event of the settlement fund being found inadequate to meet the compensation determined in respect of all the present claimants, those persons who may have their claims determined after the fund is exhausted are not left to fend themselves. But, such a contingency may not arise having regard to the size of the settlement fund. If it should arise, the reasonable way to protect the interests of the victims is to hold that the Union of India, as a welfare State and in the circumstances in which the settlement was made, should not be found wanting in making good the deficiency, if any. We hold and declare accordingly.” 10. The aforesaid would show that the burden would fall on the Union of India, as a welfare state, to protect the interest of the victims. It is to be noted that Ahmadi J., dissented on this aspect of liability of the Union. However, naturally, the majority view 11. Another aspect noted in the review was qua the members of the population of Bhopal who were put at risk; and who though asymptomatic at the time and not having filed for compensation, might become symptomatic in future. In addition, care had to be taken of unborn children of mothers exposed to toxicity, where such children later develop congenital defects. For such an eventuality, a medical group insurance cover was envisaged. This is set out in paragraph 207 of Union Carbide Corporation & Others v. Union of India & Others4, which reads as under: “207. We are of the view that such contingencies shall be taken care of by obtaining an appropriate medical group insurance cover from the General Insurance Corporation of India or the Life Insurance Corporation of India for compensation to this contingent class of possible prospective victims. There shall be no individual upper monetary limit for the insurance liability. The period of insurance cover should be a period of eight years in the future. The number of persons to be covered by this Group Insurance scheme should be about and not less than one lakh of persons. Having regard to the population of the seriously affected wards of Bhopal city at the time of the disaster and having regard to the addition to the population by the subsequent births extrapolated on the basis of national average of birth rates over the past years and the future period of surveillance, this figure broadly accords with the percentage of (sic the) population of the affected wards bears to the number of persons found to be affected by medical categorisation. This insurance cover will virtually serve to render the settlement an open ended one so far as the contingent class of future victims both existing and after-born are concerned. The possible claimants fall into two categories: those who were in existence at the time of exposure; and those who were yet unborn and whose congenital defects are traceable to MIC toxicity inherited or derived congenitally.” 12. There is no dispute that the compensation was deposited within time. 13. Subsequently, certain endeavours were made on behalf of victims from time to time to open up the settlement. However, these were opposed by the Union of India and were not successful. The most recent such attempt was Bhopal Gas Peedith Mahila Udyog Sangathan & Anr. V. Union of India & Ors.5 14. We are confronted here with an application filed under this Court’s curative jurisdiction by the Union of India 19 years post the settlement (i.e. in 2010) seeking to reopen the same. It is noteworthy that the Union chose not to file the review petitions which culminated in this Court’s order dated 02.05.1989. Naturally, the present petitions have been strongly opposed by UCC, whereas groups stated to be representing the victims have endeavoured to ride piggyback on the curative petitions. 15. The curative petitions are broadly predicated on account of “wrong assumption of facts and data” which undergirded the quantum of the settlement. Thus, the plea is that this ‘incompleteness of facts’, particularly with respect to the number of victims, has vitiated the settlement itself. On this basis, the settlement amount needs to be reexamined by this Court. Nevertheless, we may note that the Union of India was quite conscious of the fact that if the settlement were to be reopened, it would result in a revival of the suit, something which the Union has not even claimed. What the Union of India claims in essence is to top up the settlement i.e. maintain the factum of the settlement but to increase the amount as canvassed by Mr. R. Venkataramani, the learned Attorney 16. The Union of India’s claims, as set out in the petitions, are based on three “Claim – I: Claim on account of incorrect and wrong assumption of facts and data in the impugned judgments and orders on following grounds: (i) Error in computation of Death Cases – Court recorded theestimated number of death cases was 3,000 whereas actual figure of death is 5,295 cases. (ii) Error in computation of Temporary Injury Cases – Courtrecorded the estimated number of temporary disability cases was 20,000 whereas actual figure of temporary disability is 35,455 (iii) Error in computation of Minor Injury Cases – Court recordedthat the estimated number of Minor Injury cases was 50,000 whereas actual figure of Minor Injury is 5,27,894 cases. (iv) Other Cases – In certain categories (viz. Permanent disability,utmost severe injuries, loss of property and loss of livestock), the actual number assumed by the court has been found to be on the higher side resulting in the extra provision of compensation in those categories.” 17. The total amount claimed under this category was Rs. 675.96 crore at the time of filing the curative petitions. This Court vide order dated 11.10.2022 requested for the latest figures available as on the said date. These details have been set out in tabular form 18. The last column of the chart shows the additional amount required to be paid. While there is an increase in the amount required for compensation for death and temporary disability, there is also a decrease in the amounts required for cases of permanent disability and utmost severe cases, as also for loss of property and loss of life. This may have been the result of some changes in the categorisation of cases on account of the available material. The real increase is on account of minor injuries where it is stated that the additional amount required is of Rs. 955.45 crores. Undoubtedly, a decision was taken by the Government of India on 08.09.1992 to increase the amount of compensation to victims in view of representations filed by various social action groups. “Claim – II: Claim of Rs.1,743.15 cr. on account of actual expenditure incurred by the State towards relief and rehabilitation measures.” 19. The aforesaid claim was further updated to Rs. 4,949.67 crores. “Claim – III: Claim of Rs.315.70 crore on account of environment degradation.” 20. The updated amount under this category is Rs. 486.78 crores. 21. The Union of India has also claimed that since the revised amount is being claimed a number of years after the settlement; several aspects, such as the devaluation of the rupee, interest rate, purchasing power parity, and the inflation index ought to be taken into account. These considerations were pleaded in alternative and are summarized in the * Calculations based on Yearly LIBOR Calculations by applying Consumer Price Index (CPI) for industrial workers Calculations based on 7% Compound Interest 22. The curative petitions were strongly opposed by Mr. Harish Salve, learned senior counsel appearing for UCC. 23. The preliminary objection was on the very maintainability of a curative petitions after two decades of the settlement. It was submitted that this was in breach of the principles enshrined in Rupa Ashok Hurra v. Ashok Hurra & Anr. 6 , wherein this Court had specified very limited contours for its curative jurisdiction: “51. Nevertheless, we think that a petitioner is entitled to relief ex debito justitiae if he establishes (1) violation of principles of natural justice in that he was not a party to the lis but the judgement adversely affected his interests or, if he was a party to the lis, he was not served with notice of the proceedings and the matter proceeded as if he had notice and (2) where in the proceedings a learned Judge failed to disclose his connection with the subject-matter or the parties giving scope for an apprehension of bias and the judgment adversely affects the petitioner.” 24. It was submitted that the present curative petitions did not fall under any of these parameters. Counsel for UCC also highlighted another procedural deficiency on the basis of paragraph 52 of Rupa Ashok Hurra,7 wherein the petitioner is required to specifically aver that the grounds mentioned in the curative petition had been taken in the review petition and subsequently dismissed by circulation. Since Union of India had not filed review petition(s), the curative petitions ought to be thrown out at the threshold. 25. In response, the Learned Attorney General contended that it was this Court’s prerogative to chart a new course in terms of its curative jurisdiction, and to not limit itself to the extant norms specified in Rupa Ashok Hurra.8 26. On this preliminary point, we may note that a curative petition relates to a re- examination of a final judgment of this Court, particularly one that has already undergone such re-examination through the Court’s review jurisdiction. Since this Court’s review jurisdiction itself is so restrictive, we find it difficult to accept that this Court can devise a curative jurisdiction that is expansive in character. 27. On the facts of this case, we have already noticed that when review petitions were filed against the orders recording the settlement, the Union of India sought to support the same. However, the Union subsequently opposed all other applications filed for reopening the settlement. We understand that such a strategy was adopted as the Union of India’s endeavour is not to set aside the settlement but merely to ‘top up’ the settlement amount. 28. We have great hesitation in allowing such a prayer and granting such sui generis relief through the means of curative petitions. Although this Court in Rupa Ashok Hurra9 chose not to enumerate all the grounds on which a curative petition could be entertained; the Court was clear in observing that its inherent power ought not to be exercised as a matter of course, and that it should be circumspect in reconsidering an order of this Court that had become final on dismissal of the review petition. Nevertheless, looking at the nature of the matter before us, it would be advisable to also examine the curative petition(s), apart from the aforesaid preliminary objection. 29. Turning to the objections on merits of the claims in the curative petitions, counsel for UCC emphasised that the US$ 470 million (Rs. 750 crore), required to be deposited were so deposited and, thus, if the settlement is to be set aside, then the only consequence would be to revive the suit. As a corollary, the Union of India would be required to lead evidence to establish UCC’s liability, and UCC would be entitled to have US$ 470 million remitted back to it by the Union of India with interest. 30. It was pointed out that an endeavour was made in the year 2007 by way of interlocutory applications to seek enhancement of the settlement fund by private organisations. This prayer was rejected by this Court in Bhopal Gas Peedith Mahila Udyog Sangathan10 on the ground that re-examination of the settlement could not be done as the issue had already been decided. With regards to individual victims and organisations, any grievances towards the amount of compensation had to be taken up before the appropriate authorities constituted under the said Act. It is noteworthy that the Union of India had opposed the plea of the private parties, and had taken a stand before this Court that claims had been adjudicated and compensation had been paid in terms of the scheme devised under the said Act. 31. The aforesaid was the latest endeavour prior to the filing of the present curative petitions. However, even before this, certain private organisations had filed interlocutory applications for disbursal of the surplus amount left from the settlement fund. This Court in Union Carbide Corporation Ltd. V. Union of India11 observed that approximately Rs. 1,503.01 crores from the settlement fund were available as on that date, and thus ordered that this amount be distributed on pro rata basis to those persons whose claims had been 32. There appear to be two reasons for the growth of the fund – (a) interest on it and (b) more importantly, an exchange rate fluctuation in favour of the US Dollar. We may hasten to add that the learned Attorney General was correct in submitting that UCC could not have taken benefit of a hypothetical fluctuation in the opposite direction, i.e. in favour of the Rupee. Nevertheless, the fact remains that the settlement fund, and the disbursement from the same underwent a significant increase considering the lapse of 33. Next, learned counsel for UCC contended that the language of this Court’s orders dated 14.02.1989 and 15.02.1989 left no doubt as to the comprehensive nature of the settlement. UCC had agreed to the settlement even without a finding as to its liability. UCC’s Indian holding, i.e. UCIL had been wound up. The settlement was accepted only on the basis that it was an overall settlement, which ended its potential exposure towards any legal proceedings. As a final stamp upon the settlement; this Court’s order dated 15.02.1989 had imposed a duty on the Union of India and the State of Madhya Pradesh to ensure that any suit, claim, or civil complaint filed in the future against UCC would be defended by the Union of India and would be disposed of in terms of the said order. 34. It was urged that the review judgment had confirmed the ‘basic assumptions underlying the settlement’ and the settlement itself had been upheld, save the aspect of closure of criminal proceedings. Moreover, the issues sought to be raised in the present curative petitions were in fact raised in the review petitions filed by the private parties and were finally decided by the order of this Court dated 03.10.1991. 35. Thus, it was contended that the substance of Union of India’s Claim-I, i.e. on account of error in computation of deaths, injuries etc. had actually been addressed by this Court in its review judgment. This Court had dealt with the risk of asymptomatic individuals later becoming ill and had directed the Union of India to obtain insurance cover for eight years and to provide free medical monitoring and treatment of victims. In case of any deficit in the settlement fund, the responsibility was placed on the Union of India as a welfare State to fulfil such deficiency. Mr. Salve emphasised that it would be hazardous to belittle the advantages of a settlement by questioning it on the anvil of adequacy or fairness, considering the complexity of the matter and the need to protect victims from the prospects of a protracted, exhausting, and uncertain litigation. 36. It was further contended that the settlement decree passed by this Court was not an adjudication upon either UCC’s liability or the quantum of compensation payable, as the suit never went to trial. A consensual settlement cannot be unilaterally enhanced without the consent of both the parties. The Union of India has not brought forth any allegation against the settlement or any ground to set it aside. The Union was fully aware of the consequences of setting aside the settlement and thus, restricted their petitions to a prayer for ‘topping up’ the settlement amount. 37. It was also emphasised that there was no basic assumption that could be considered to have gone wrong. In the table reproduced above, it would appear that the only head in which there was any major change was with respect to ‘minor injuries’. This however resulted from the Union’s own categorisation of injuries suffered in the aftermath of the tragedy, and their decision to expand the coverage of relief to a larger number of individuals. This was possible only because of the large amount of funds available with the Union, as is evident from the fact that this Court had in its order dated 19.05.2004 noted the availability of more than Rs. 1,500 crores available with the RBI and consequently awarded disbursal of the same on a pro rata basis. The Welfare Commissioner had recorded that after paying Rs.1,548.95 crores in the first round, a further Rs.1,509.14 crores had been disbursed on pro rata basis. Thus, a total of over Rs.3,000 crore had been paid to the victims. 38. In fact, it is admitted before us by the learned Attorney General that a sum of Rs. 50 crore was still lying with the Reserve Bank of India to take care of victims. 39. We may note that the intervenors, who are organisations representing victims, have also raised a similar line of arguments and their prayer is also to enhance the settlement amount. Mr. Sanjay Parekh, learned senior counsel, while seeking enhancement appeared to mirror the arguments of the learned Attorney General. In addition, he prayed for digitisation of medical records for the benefit of victims who had been attended to in the hospitals so as to enable a fair assessment of their injuries. This aspect is however stated to be pending before the Madhya Pradesh High Court. 40. We have bestowed our anxious consideration to the arguments put forth by both sides. While we sympathize with the victims of the awful tragedy, we are unable to disregard settled principles of law, particularly at the curative stage. Mere sympathy for the sufferers does not enable us to devise a panacea; more so while looking into the nature of dispute, and the multifarious occasions on which this Court has applied its mind to the settlement. 41. The very basis for the original settlement was the need to provide immediate succour to the victims - through medical relief, rehabilitation measures, setting up of facilities etc. This has been clearly observed by this Court at every step; be it in the orders recording the settlement, the order detailing reasons for the same, and the review judgment. We thus do not appreciate the endeavour by Ms. Karuna Nundy, counsel for the intervenors, in making out a case that there was a ‘midnight settlement’ whereby a fraud was played upon this Court and the Union. The Court was clearly occupied with the aspect of a settlement being entered into, and it was found, after a number of sittings and rounds of hearings, that this was the most appropriate course of action. 42. On the aspect of adequacy, we must also take note of the factual scenario which emerges as per the figures of the Union itself. Except for cases of minor injuries, the settlement amount was actually in excess as is apparent from the table reproduced above. As far as the issue of minor injuries is concerned, it appears from the Union’s own affidavit in IA Nos. 48-49/2004 in Civil Appeal No. 3187-88 of 1998 that in cases of injury, Rs. 50,000 to Rs. 4 lakh (original and pro rata compensation) and an additional Rs. 50,000 were paid in cases of mere presence in the gas affected areas of Bhopal on the fateful night. It has also been admitted in the said affidavit that the amount of compensation for all categories was allocated on the higher side, and after disbursal of the leftover amount on a pro rata basis, the overall rate of compensation has in fact been doubled. Suffice for us to say that as per the learned Attorney General, a figure of Rs. 50 crore remains with the Reserve Bank of India lying undisbursed. 43. We are conscious of the fact that the exchange rate worked in the Union’s favour as the exchange rate of the Dollar rate escalated. Some interest on the settlement amount also came in. This has allowed the Union to work out a more wholesome allotment for the 44. We are cognizant that no amount is truly adequate when such incidents occur. Nevertheless, a monetary determination had to take place, and the only compensatory mechanism known to common law is that of a lump-sum settlement. This was deemed far more preferable to the alternative option, whereby the suit would be allowed to be tried without a reasonable expectation of knowing when the trial would come to an end. This determination would of course be subject to further appeals and the process of execution, particularly as UCIL’s assets in India were only about Rs. 100 crores. Without a settlement, immediate funds would not have been available for the victims. All these factors weighed with this Court while arriving at the settlement. 45. It is the Union’s own stand that the Commissioner has adjudicated all claims through procedure established by law where the possibility of appeal was provided. Further, it has been admitted in the proceedings culminating in this Court’s order dated 19.07.2004 that the amount of settlement was found to be in surplus of the actual requirement, and thus the claimants had been “provided compensation that was more than what was reasonably awardable to them under law”. This reinforces the position that the settlement amount was sufficient to compensate the claimants. 46. The Union has filed the present curative petitions seeking to reopen the settlement after opposing attempts by private parties to do so. The scenario arising in case of a shortage was clearly outlined in the review judgment, i.e. the responsibility was placed on the Union of India, being a welfare State to make good the deficiency and to take out the relevant insurance policies. Surprisingly, we are informed that no such insurance policy was taken out. This is gross negligence on part of the Union of India and is a breach of the directions made in the review judgment. The Union cannot be negligent on this aspect and then seek a prayer from this Court to fix such liability on UCC. 47. Union of India’s claim for a ‘top up’ has no foundations in any known legal principle. Either a settlement is valid or it is to be set aside in cases where it is vitiated by fraud. No such fraud has been pleaded by the Union, and their only contention relates to a number of victims, injuries, and costs that were not contemplated at the time the settlement was effected. There is also specifically no pleading under the heading of Claims 2 and 3 that can be said to be admissible, or one that could not be envisaged at the stage of settlement. It was known that medical facilities would have to be extended to rehabilitate people and there was bound to be environmental degradation. In fact, it is the UCC’s allegation that the Union and State Governments did not proactively detoxify or decomission the site, thereby aggravating the problem. In any case, this cannot be a ground to seek annulment of the compromise, particularly as the settlement had to be reached in an expedient manner. The learned Attorney General’s response has been that a method for ‘topping up’ the settlement amount be devised under Article 142 of the Constitution of India. We believe this would not be an appropriate course of action or a method to impose a greater liability on UCC than it initially agreed to bear. 48. We are equally dissatisfied with the Union being unable to furnish any rationale for raking up this issue more than two decades after the incident. Even assuming that the figures of affected persons turned out to be larger than contemplated earlier, an excess amount of funds remained available to satisfy such claims. The Welfare Commissioner has in fact held in its order dated 31.01.2009 that on including the pro rata compensation, nearly six times the amount of compensation has been disbursed to victims in comparison with Motor Vehicle Accident claims. This order came in an application filed by organisations who sought enhancement of their claim amounts due to fluctuation in the conversion value of the Dollar vis-à-vis the Rupee prevailing at the time of the settlement in 1989. A sum of Rs.50 crore lying with the RBI shall be utilised by the Union of India to satisfy pending claims, if any, in accordance with the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 and the Scheme framed thereunder. 49. Providing closure to a lis is also a very important aspect. This is more so in the context of the scenario faced by the Indian judiciary, where delay is almost inevitable. This concern would be further amplified in respect of a tort claim such as the present one - if evidence were to be led for each claimant, this would open a pandora’s box in UCC’s favour and would only be to the detriment of the beneficiaries. The money was needed in the immediate aftermath of the tragedy and not after three decades. 50. Thus, finality was reached at an early stage by way of the settlement. Endeavours to reopen the same proved unsuccessful. Now the curative petitions have been filed by the Union of India having not filed review petitions. Private parties who are here before us seek to ride on the coattails of the Union. This is not something we can countenance. 51. We are thus of the view that for all the aforesaid reasons the curative petitions cannot be entertained and we thus dismiss it leaving the parties to bear their own costs.
A special group of Supreme Court judges recently rejected a legal appeal from the Indian government. The government wanted to change an old agreement with Union Carbide Corporation (now Dow Chemicals) to get more money for the victims of the 1984 Bhopal Gas Tragedy. The Court explained that such agreements can only be canceled if there was fraud, but the Indian government had not claimed any fraud. However, the Court did order the government to use 50 crore rupees, which are held by the central bank, to pay any remaining victim claims. The group of judges, who had waited to announce their decision since January 12, 2023, stated that the government's special request was not based on proper legal rules. The judges included Justice S.K. Kaul, Justice Sanjiv Khanna, Justice A.S. Oka, Justice Vikram Nath, and Justice J.K. Maheshwari. The Court pointed out that the Indian government itself had failed to buy insurance policies, even though the Supreme Court had told it to. This insurance was meant to cover any missing compensation. The judges called this a serious failure of duty by the government and against the court’s earlier decision. They stated that the government could not be careless about this and then ask the Court to blame Union Carbide for it. The Court further expressed its disappointment with the Indian government for not giving a good reason for bringing up this issue more than twenty years after the accident. The Court decided that the government's request for extra compensation wasn't based on legal rules. The judges noted, "Either an agreement is valid, or it has to be made invalid because of fraud. No such fraud has been claimed by the Indian government." The Court understood that the government's case was based on the idea that there were more victims and injuries than expected when the agreement was made. However, the judges noted that damage to the environment and the need for medical help to allow people to recover were expected. Union Carbide also claimed that the Indian government and the state government didn't quickly clean up the area, which made the problem worse. In any case, the Court noted that these were not reasons to ask for more money now. Even if there are more claims than expected, extra money is still available to pay those claims. The Court noted that the government's position is that the Commissioner judged all claims fairly, following the law. Also, during court proceedings that finished in 2004, it was agreed that the money provided was enough for what was actually needed. This means the victims received more than fair payment. This further supports the idea that the original agreement amount was sufficient. In 1989, Union Carbide agreed to pay 470 million US dollars to the Indian government to settle all claims and legal responsibilities from the Bhopal Gas disaster. The details of this agreement were written in Supreme Court orders on February 14th and 15th, 1989. Later, in 1991, a special group of judges officially approved this agreement after private groups asked for a review. Arguments Over three days, the judges heard points made by the government's top lawyer, Mr. R. Venkataramani, on behalf of the Indian government. They also heard from lawyers like Ms. Karuna Nundy and Mr. Sanjay Parikh, who were speaking for groups and victims of the disaster. Their points were argued against by a senior lawyer, Mr. Harish Salve, who represented Dow Chemicals. Right from the start, the judges questioned what such a special request could achieve. They worried that the Indian government was trying to change or add to an agreement that was reached a long time ago, in 1989. The Attorney General explained the government's position, saying the compensation amount was too little and needed to be changed because of new events. The judges were surprised that it took the Indian government 25 years to realize the compensation set in 1989 was not enough. Justice Kaul pointed out that the agreement in 1989 was made between the company and the Indian government, two powerful parties. So, no one was forced into it. The judges also stressed at different times during the hearing that a part of the compensation, about 50 crore and 25 lakh rupees, was still held by India's central bank. Mr. Salve told the judges that the Indian government's arguments in the special request went beyond what was discussed in the first lawsuit. He clearly stated that problems like victim support, recovery, and getting rid of dangerous waste were not part of the original case. However, the Attorney General strongly asked the judges to give more compensation because of how unusually large and serious the disaster was. Justice Oka pointed out that in an earlier review decision, the Supreme Court had said that if there was a missing amount in compensation, then the government should pay it. He also noted that in its 1991 decision, the Supreme Court had told the Indian government to buy insurance policies for at least 100,000 people to cover future claims. However, it seemed that the government had not done this. Justice Kaul also expressed his displeasure that the Indian government had failed to do something that could have helped the affected families greatly. On the third day, Ms. Nundy began making her points. Her arguments were based on the idea that there was a serious failure of justice and that the company committed fraud by hiding important facts central to the agreement. The judges felt that her request would mean restarting the entire court case and went beyond what a special request could cover. Mr. Parikh argued that the Supreme Court kept full control over the agreement process, and so the Court should make sure it doesn't lead to clear unfairness. But the judges did not agree with this point. They stated that the agreement was fully worked out by the two sides, and the Court never suggested how much money to pay. It only wrote down the amount they had agreed to. Mr. Salve, on behalf of Union Carbide Corporation (now Dow Chemicals), stated firmly that a complete and final agreement was reached between his client and the Indian government in 1989, and there was no reason to change it. The special request filed by the Indian government in December 2010 argued that the earlier agreement was based on wrong guesses about the number of deaths, injuries, and losses. It also didn't consider the later damage to the environment. According to the request, the earlier figures were 3,000 deaths and 70,000 injuries, but the actual figures were 5,295 deaths and 527,894 injuries. In 1985, the Parliament passed a law called the Bhopal Gas Leak (Processing of Claims) Act. This law allowed the Indian government to represent the victims of the disaster in court. Initially, the Indian government had filed a case in a US court in New York, asking for about 3 billion dollars in compensation. That case was rejected, and the court said the case should be heard in Indian courts. After that, a lawsuit was started in a local court in Bhopal. A temporary order was given by the local judge, telling Union Carbide to pay 350 crore rupees to the gas victims. Union Carbide, the company involved, went to the High Court in Madhya Pradesh. It disagreed with a decision made by an earlier judge. The High Court agreed that money should be paid to victims. However, it lowered the amount from 350 crore rupees to 250 crore rupees. Both Union Carbide and the Indian government then took their case to the Supreme Court. The Supreme Court asked both sides to try and agree on a payment. In 1989, Union Carbide and the Indian government reached an agreement, which the Supreme Court approved. Union Carbide paid 470 million dollars in this agreement. Later, some groups asked the Supreme Court to review its decision, but the Court refused to increase the payment. In 1991, the government tried to undo the agreement, but this request was denied. After almost 19 years, in 2010, the Indian government filed a special request, called a curative petition. A special group of Supreme Court judges is now deciding this request. Victims also filed several group lawsuits against Union Carbide in courts in the United States. When this case first came before the special group of judges in September 2022, they asked Mr. Tushar Mehta, a senior government lawyer, to find out the central government's current position on the special request it filed over ten years ago. In October 2022, another senior government lawyer, the Attorney General, told the judges that the government wanted to continue with the special request. So, the judges allowed the government to represent the victims of the Bhopal gas leak. However, the judges did not allow other non-governmental organizations to submit written arguments. But they still allowed these groups to speak in court. [Case Status: Union of India And Others v. Union Carbide Corporation And Others. Curative Petition (C) No. 345-347/2010] Bhopal Gas Tragedy - The Supreme Court rejected the government's special request to get more money from Union Carbide. This request aimed to undo the 1989 agreement, which the Supreme Court had already approved. The government had filed this new request after previously disagreeing with private groups trying to reopen the settlement. As a government that cares for its people, the Union of India was supposed to cover any missing funds and buy relevant insurance policies. Surprisingly, we were told that no such insurance policy was bought. The Supreme Court called this a serious failure by the Indian government and a breach of earlier court orders. The government cannot be careless in this way and then ask the Court to make Union Carbide pay for these added costs. - Paragraph 46 Bhopal Gas Tragedy - While we feel for the victims of this terrible event, we cannot ignore basic legal rules. This is especially true at this late stage of a special request. Simply feeling sorry for those who suffered does not allow us to create a perfect solution. This is even more true given the nature of this disagreement and how many times the Supreme Court has already looked at the agreement. - Paragraph 40 Bhopal Gas Tragedy - The Indian government's claim for extra money has no basis in any known legal rule. An agreement is either valid, or it can be canceled if there was fraud. The government did not claim there was any fraud. Their only argument was about a higher number of victims, injuries, and costs that they did not expect when the agreement was made. We are also unhappy that the government could not explain why it brought up this issue again more than twenty years after the incident. - Paragraph 47, 48 Bhopal Gas Tragedy - The Indian government must use the 50 crore rupees held by the Reserve Bank of India to pay any remaining claims. This must be done according to the 1985 law about processing claims from the Bhopal Gas Leak Disaster and the plan created under that law. - Paragraph 49 Bhopal Gas Tragedy - Bringing a legal case to an end is also very important. This is especially true in the Indian court system, where delays are almost certain. This concern would be even greater for a claim about harm caused by someone's actions, like this one. If evidence had to be collected for each person claiming damages, it would cause many problems for the victims and likely benefit Union Carbide. - Paragraph 50
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This petition is filed under Articles 226 and 227 of the Constitution of India read with Section 482 of Cr.P.C, praying this Court to quash the impugned order dated 08.06.2020 taking cognizance vide Annexure-A passed by the learned ACJ and JMFC, Bantwal, D.K. in C.C.No.813/2020 and set aside the entire proceedings in C.C.No.813/2020 against the petitioners, who are accused Nos.1 and 2 in FIR No.209/2016 for the offences punishable under Section 298 read with Section 34 of IPC and consequently to quash the FIR and grant such other relief as deemed fit in the circumstances of the case. 2. The factual matrix of the case is that the police have registered the case against the petitioners based on the compliant of one Smt. Madhura vide Annexure-B wherein allegations are made against the petitioners that they came to her residence and told that they came to give information about the website. In the beginning they told that they came to educate the children through videos and there were messages of Bible. They told that the Society is not in order and they have to do something for the future and gave the pamphlet. In the said pamphlet there was some information with regard to the website. The complainant enquired that there is no information about Quran and Bhagavadgita and they told that only Bible can tell the future and no other religious scripts give any information and tsunami is coming in the future. The Government can give only information and Yesu Christa can give protection if he is believed and if they believe they get all type of peace of mind and no other religion can provide the same. Hence, the complainant questioned them whether they have come for propagating the religious belief and whether they came for conversion and immediately they left the place. Based on the complaint, the police have registered the case against the petitioners for the offences punishable under Section 295A read with Section 34 of IPC in Crime No.209/2016. Thereafter, the police have investigated the matter and filed the charge-sheet and while filing the charge-sheet they invoked the offence under Section 298 read with Section 34 of IPC. The learned Magistrate after filing of the charge-sheet, vide his order dated 08.06.2020 took the cognizance. Hence, the present petition is filed before 3. The learned counsel for the petitioners would vehemently contend that the allegations made in the charge- sheet does not attract the ingredients of the offence punishable under Section 298 of IPC. The learned counsel would submit that the cognizance was taken after 3½ years and there was an inordinate delay in filing the charge-sheet. The learned Magistrate has not applied his mind while taking the cognizance and it is a clear case of non-application of mind. The filing of the case against the petitioners herein is violative of Articles 14, 21 and 25 of the Constitution of India. 4. The learned counsel for the petitioners in support of his arguments relied upon the judgment of the Gauhati High Court in the case of K. VIKHEHO SEMA v. STATE OF NAGALAND reported in 2007 Cri.L.J. 4266, wherein it is held that under Section 468(2)(c) of Cr.P.C., the Court can take cognizance of an offence punishable with imprisonment for a term not exceeding three years, if the criminal action is set in motion within a period of three years. The learned counsel brought to the notice of this Court paragraph Nos.12 and 13 of the judgment. In paragraph No.12 it is held that the object of the Criminal Procedure Code in putting a bar of limitation on prosecutions was clearly to prevent the parties from filing cases after a long time, as a result of which material evidence may disappear and also to prevent abuse of the process of the Court by filing vexatious and belated prosecutions long after the date of the offence. The object which the statutes seek to subserve is clearly in consonance with the concept of fairness of trial as enshrined in Article 21 of the Constitution of India. 5. The learned counsel also relied upon the unreported decision of this Court passed in W.P.No.102268/2015 dated 10.08.2015, wherein this Court in paragraph No.21 of the judgment discussed that if somebody wants to practice/propagate a particular religion, he cannot be attacked by persons belonging to any other denomination or religion of faith. He is entitled to every possible protection at the hands of the police. The police cannot abdicate their responsibility of protecting the individuals, who are exercising the rights guaranteed under Article 25 of the Constitution of India. Further, the protection guaranteed under Article 25 is not confined to matters of doctrine, but extends to acts done in exercise of the right to profess, practice and propagate religion 6. The learned counsel also relied upon the judgment of the Delhi High Court in the case of VINOD KUMAR JAM v. REGISTRAR OF COMPANIES reported in 1985 RLR 603, wherein in paragraph No.6 discussed with regard to Section 468, 469 and 473 of Cr.P.C. In paragraph No.15 it is held that the Magistrate must apply his judicial mind to the question of condoning the delay before taking cognizance of the offence and he cannot, after taking the cognizance, rectify the illegality by passing an order under Section 473 of Cr.P.C. so as to operate 7. The learned counsel also relied upon the Bombay High Court judgment in the case of KHALID AKHTAR ABDUL LATIF AHEMI v. THE STATE OF MAHARASHTRA passed in Criminal Application No.1665/2009 dated 30.06.2010 wherein exercising the power under Section 482 of Cr.P.C., the Bombay High Court discussed Sections 468, 469, 470 and 473 of Cr.P.C. and held that the Court is duty bound on the presentation of the charge-sheet to consider the question of limitation and to see as to whether it is competent to take cognizance and whether the limitation has expired or not. 8. The learned counsel also relied upon the Delhi High Court judgment in the case of SAREGAMA INDIA LTD. v. STATE NCT OF DELHI passed in Crl.M.C.No.149/2007 delivered on 27.01.2014, wherein the Delhi High Court discussed Section 468 of Cr.P.C. regarding taking of cognizance after lapse of period of limitation and also discussed Section 473 of Cr.P.C. which extends the period of limitation. 9. The learned counsel also relied upon the Apex Court judgment in the case of STATE OF HIMACHAL PRADESH v. TARA DUTT AND ANOTHER passed in Appeal (Crl.) No.1224/1999 delivered on 19.11.1999 wherein the Apex Court discussed Sections 468 and 473 of Cr.P.C. and observed that the discretion conferred on the Court has to be exercised judicially and on well recognized principles. While exercising the discretion, the same must be by a speaking order, indicating the satisfaction of the Court that the delay was satisfactorily explained and condonation of the same was in the interest of 10. The learned counsel also relied upon the Allahabad High Court judgment in the case of KAMLA KANT SINGH v. AND COMPANY LTD. AND OTHERS passed in Criminal Rev.No.667/1985 dated 27.07.1987, wherein it is discussed with regard to Section 298 of IPC. Under Section 298 of IPC what has been made punishable, is uttering words etc. with deliberate intention to wound religious feelings. What is to be marked is that even to wound the religious feelings is not punishable unless it is with deliberate intention. Deliberate intention means premeditated intention with sole object to wound the religious feelings. It is better to have the object in enacting Section 298 of IPC. The authors or the framers of the Code say that a warm expression dropped in the heat of controversy, or an argument urged by any person, not for the purpose of insulting and annoying the professors of a different creed, but in good faith for the purpose of vindicating his own, will not fall under the definition contained in this clause. 11. The learned counsel also relied upon the judgment of the Apex Court in the case of KRISHNA LAL CHAWLA AND OTHERS v. STATE OF U.P. AND ANOTHER passed in Criminal Appeal No.283/2021 delivered on 08.03.2021, wherein the Apex Court referring to paragraph No.28 of the judgment in the case of Pepsi Foods Ltd. v. Special Judicial Magistrate held that the power to issue a summoning order is a matter of grave importance, and that the Magistrate must only allow criminal law to take its course after satisfying himself that there is a real case to be made. The learned counsel also brought to the notice of this Court paragraph No.18 of the judgment wherein the Apex Court has observed that the Trial Courts have the power to not merely decide on acquittal or conviction of the accused person after the trial, but also the duty to nip frivolous litigations in the bud even before they reach the stage of trial by discharging the accused in fit cases. This would not only save judicial time that comes at the cost of public money, but would also protect the right to liberty that every person is entitled to under Article 21 of 12. The learned counsel referring the above judgments would submit that the proceedings initiated against the petitioners is liable to be quashed on the ground of limitation and also on merits. The learned Magistrate has not applied his judicious mind while taking the cognizance. 13. Per contra, the learned High Court Government Pleader appearing for respondent No.1 – State would contend that the Court has to take note of the date of the complaint and not filing of the charge-sheet. The incident was taken place on 06.12.2016 and the charge-sheet was filed on 08.06.2020. The learned counsel would contend that no application is filed under Section 473 of Cr.P.C. to condone the delay. The learned counsel would contend that the Constitutional Bench judgment of the Apex Court in the case of SARAH MATHEW AND OTHERS OTHERS reported in AIR 2014 SC 448 has held that when on a petition or complaint being filed before Magistrate, then a Magistrate applies his mind for proceeding under the various provisions of Chapter XIV of Cr.P.C. then it must be held to have taken cognizance of the offences mentioned in the complaint. The Apex Court also discussed Sections 468 and 473 of Cr.P.C. and held that the Magistrate has the power to take cognizance of an offence only if complaint in respect of, it is filed within prescribed limitation period. The Magistrate would however be entitled to exclude such time as is legally excludable. Section 473 of Cr.P.C. has a non-obstante clause which means that it has an overriding effect on Section 468 of Cr.P.C. For the purpose of computing the period of limitation under Section 468 of Cr.P.C., the relevant date is the date of filing of complaint or the date of institution of process and not the date on which the Magistrate takes cognizance. 14. The learned counsel referring this judgment would contend that this judgment is on the point and hence the judgments referred by the learned counsel for the petitioners are not applicable to the case on hand when the Constitutional Bench has delivered the judgment holding that for the purpose of computing the period of limitation under Section 468 of Cr.P.C. the relevant date is the date of filing of the complaint. The learned counsel would also contend that the FIR discloses that the cognizable offence was taken place and there was no delay in lodging the complaint and the FIR constitutes the offence i.e., degrading the other religions. No fundamental right is conferred on any religion to degrade the other religion. The same is a mixed question of fact and law and hence there cannot be any quashing of the proceedings against the petitioners. 15. In reply to the arguments of the learned High Court Government Pleader, the learned counsel for the petitioners would contend that the offences which have been invoked against the petitioners are barred by limitation and hence there cannot be any criminal prosecution against the petitioners. 16. Having heard the respective contention of both the counsel, this Court has to analyze the material available on record with the principles laid down by the judgments referred supra. It is settled law that the initiation of the criminal prosecution is a serious matter and the Apex Court in the recent judgment in the case of Krishna Lal Chawla (supra) held that the learned Magistrate has to take note of the materials placed before the Court and in paragraph No.18 it is held that it is the duty of the Magistrate to nip frivolous litigations in the bud even before they reach the stage of trial by discharging the accused in fit cases. 17. The learned counsel for the petitioners would contend that the charge-sheet is filed after 3½ years. It is also not in dispute that the incident was taken on 06.12.2016 and the charge-sheet was filed on 08.06.2020. It is an admitted fact that no application is filed under Section 473 of Cr.P.C. The Apex Court in the judgment in the case of Sarah Mathew (supra) discussed the scope of Sections 468 and 473 of Cr.P.C. The Apex Court categorically held that for the purpose of computing the period of limitation under Section 468 of Cr.P.C., the relevant date is the date of filing of complaint or the date of institution of process and not the date on which the Magistrate takes cognizance. In the case on hand, no doubt the cognizance is taken after filing of delayed charge-sheet, but the fact is that the complaint was given on 06.12.2016. When the Apex Court held that for the purpose of computing the period of limitation under Section 468 of Cr.P.C., the relevant date is the date of filing of complaint and in the case on hand, there was no delay in lodging the complaint and the complaint was filed on the very same day. 18. It is important to note that an allegation is made in the complaint that the accused persons have degraded the other religions stating that neither Bhagavadgita nor Quran will provide any peace of mind or comes to any rescue of any person except Yesu Christa. It is rightly pointed out by the learned counsel for the respondent/complainant that no fundamental right is given to any religion to degrade other religions. In the case on hand, specific allegation against the petitioners is that they have degraded the other religion. When such being the case, the very contention of the learned counsel for the petitioners that the charge-sheet is filed after delayed period cannot be accepted when the Constitutional Bench says that for the purpose of computing the period of limitation under Section 468 of Cr.P.C. the relevant date is the date of filing of complaint. I have already pointed out that there is no delay in lodging the complaint. The Apex Court in the case of Sarah Mathew (supra) discussed in detail regarding applicability of the period of limitation and computation of limitation in paragraph No.21 of the judgment after discussing Sections 467 to 473 of Cr.P.C. and so also discussed with regard to the words ‘taking cognizance’ has not been defined in the Code. Hence, the first contention that the proceedings initiated against the petitioners is barred by limitation cannot be accepted. 19. The second contention on merits is concerned is that the Magistrate has not applied his mind while taking the cognizance. On perusal of the impugned order at Annexure-A, the learned Magistrate after receiving the charge-sheet and the relevant documents, perused the same and found prima facie materials available on record to proceed against accused Nos.1 and 2. The learned Magistrate invoking Section 190(1)(b) of Cr.P.C. took the cognizance for the offence punishable under Section 298 read with Section 34 of IPC. It is settled law that while taking the cognizance, the learned Magistrate need not pass any elaborate order and it requires application of mind whether charge-sheet material and its enclosures constitute a prima facie material to proceed against the accused. When the learned Magistrate has applied his judicious mind while taking the cognizance, the very contention that the learned Magistrate has not applied his judicious mind cannot be accepted. 20. The other contention of the learned counsel for the petitioners that taking of cognizance violates Articles 14, 21 and 25 of the Constitution of India cannot be accepted for the reason that I have already pointed out that while professing any religion, the religious heads or professing by any person should not degrade other religion. Having perused the complaint averments and also the statements of the witnesses, it is specific that while propagating they specifically mentioned that other religious scripts does not say anything about anticipation of tsunami and only Yesu Christa can protect them. When such allegations are made in the complaint, the very contention of the learned counsel for the petitioners that the offences invoked against the petitioners does not attract the ingredients of Section 298 of IPC cannot be accepted. No doubt, while setting the law in motion invoked Section 295(A) of IPC regarding deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs and after the investigation, the Investigating Officer invoked Section 298 of IPC uttering, words, etc. with deliberate intention to wound the religious feelings of any person. Having taken note of the complaint averments and also the statement of witnesses, with deliberate intention to wound the religious feelings of other religion words are uttered while propogating. When such being the facts of the case, it attracts Section 298 of IPC. Hence, the contentions of the learned counsel for the petitioners that the charges levelled against the petitioners does not attract Section 298 of IPC and issue of process against the petitioners would vitiates Articles 14, 21 and 25 of the Constitution of India, cannot be accepted. 21. In view of the discussions made above, I pass the The petition is rejected. In view of rejection of the main petition, I.As, if any, does not survive for consideration and the same stands disposed of.
The Karnataka High Court stated that no religion has a basic legal right to insult or put down other religions. Justice HP Sandesh repeated this point, saying that religious leaders or anyone practicing their faith should not put down other religions. He made this observation when he decided not to cancel a criminal complaint against someone accused of insulting a religion. A woman had filed a complaint. She claimed that the person accused came to her home and insulted other religions. The accused said that neither the Bhagavad-Gita nor the Quran could offer peace or help, only Jesus Christ could. The accused then asked the High Court to stop the case from moving forward. They argued that continuing the case went against their basic rights to equality, life, and freedom of religion, as laid out in the Indian Constitution. When the court looked at the request to stop the case, it noted that there were clear accusations that the accused had insulted other religions. The court again stated that religious leaders and anyone practicing their faith should not insult other religions. It noted that after reviewing the complaint and witness reports, it was clear that while sharing their beliefs, the accused specifically said that other religious texts did not mention tsunamis and that only Jesus Christ could protect people. Given these accusations, the court disagreed with the accused's lawyers. The lawyers argued that the actions did not meet the definition of Section 298 of the Indian Penal Code (IPC). This section deals with saying words with a clear plan to hurt someone's religious feelings. The court explained that the case first started under Section 295(A) of the IPC, which covers intentional acts meant to deeply offend religious beliefs. But after investigation, the police decided Section 298 IPC was more fitting. Since words were spoken with a clear intention to hurt the religious feelings of others during their preaching, the court found that the case did fit Section 298 IPC. For these reasons, the court rejected the accused's claims that the charges were wrong or that continuing the case would violate their basic rights to equality, life, and freedom of religion. The court then dismissed their request.
This petition is filed under Articles 226 and 227 of the Constitution of India read with Section 482 of Cr.P.C, praying this Court to quash the impugned order dated 08.06.2020 taking cognizance vide Annexure-A passed by the learned ACJ and JMFC, Bantwal, D.K. in C.C.No.813/2020 and set aside the entire proceedings in C.C.No.813/2020 against the petitioners, who are accused Nos.1 and 2 in FIR No.209/2016 for the offences punishable under Section 298 read with Section 34 of IPC and consequently to quash the FIR and grant such other relief as deemed fit in the circumstances of the case. 2. The factual matrix of the case is that the police have registered the case against the petitioners based on the compliant of one Smt. Madhura vide Annexure-B wherein allegations are made against the petitioners that they came to her residence and told that they came to give information about the website. In the beginning they told that they came to educate the children through videos and there were messages of Bible. They told that the Society is not in order and they have to do something for the future and gave the pamphlet. In the said pamphlet there was some information with regard to the website. The complainant enquired that there is no information about Quran and Bhagavadgita and they told that only Bible can tell the future and no other religious scripts give any information and tsunami is coming in the future. The Government can give only information and Yesu Christa can give protection if he is believed and if they believe they get all type of peace of mind and no other religion can provide the same. Hence, the complainant questioned them whether they have come for propagating the religious belief and whether they came for conversion and immediately they left the place. Based on the complaint, the police have registered the case against the petitioners for the offences punishable under Section 295A read with Section 34 of IPC in Crime No.209/2016. Thereafter, the police have investigated the matter and filed the charge-sheet and while filing the charge-sheet they invoked the offence under Section 298 read with Section 34 of IPC. The learned Magistrate after filing of the charge-sheet, vide his order dated 08.06.2020 took the cognizance. Hence, the present petition is filed before 3. The learned counsel for the petitioners would vehemently contend that the allegations made in the charge- sheet does not attract the ingredients of the offence punishable under Section 298 of IPC. The learned counsel would submit that the cognizance was taken after 3½ years and there was an inordinate delay in filing the charge-sheet. The learned Magistrate has not applied his mind while taking the cognizance and it is a clear case of non-application of mind. The filing of the case against the petitioners herein is violative of Articles 14, 21 and 25 of the Constitution of India. 4. The learned counsel for the petitioners in support of his arguments relied upon the judgment of the Gauhati High Court in the case of K. VIKHEHO SEMA v. STATE OF NAGALAND reported in 2007 Cri.L.J. 4266, wherein it is held that under Section 468(2)(c) of Cr.P.C., the Court can take cognizance of an offence punishable with imprisonment for a term not exceeding three years, if the criminal action is set in motion within a period of three years. The learned counsel brought to the notice of this Court paragraph Nos.12 and 13 of the judgment. In paragraph No.12 it is held that the object of the Criminal Procedure Code in putting a bar of limitation on prosecutions was clearly to prevent the parties from filing cases after a long time, as a result of which material evidence may disappear and also to prevent abuse of the process of the Court by filing vexatious and belated prosecutions long after the date of the offence. The object which the statutes seek to subserve is clearly in consonance with the concept of fairness of trial as enshrined in Article 21 of the Constitution of India. 5. The learned counsel also relied upon the unreported decision of this Court passed in W.P.No.102268/2015 dated 10.08.2015, wherein this Court in paragraph No.21 of the judgment discussed that if somebody wants to practice/propagate a particular religion, he cannot be attacked by persons belonging to any other denomination or religion of faith. He is entitled to every possible protection at the hands of the police. The police cannot abdicate their responsibility of protecting the individuals, who are exercising the rights guaranteed under Article 25 of the Constitution of India. Further, the protection guaranteed under Article 25 is not confined to matters of doctrine, but extends to acts done in exercise of the right to profess, practice and propagate religion 6. The learned counsel also relied upon the judgment of the Delhi High Court in the case of VINOD KUMAR JAM v. REGISTRAR OF COMPANIES reported in 1985 RLR 603, wherein in paragraph No.6 discussed with regard to Section 468, 469 and 473 of Cr.P.C. In paragraph No.15 it is held that the Magistrate must apply his judicial mind to the question of condoning the delay before taking cognizance of the offence and he cannot, after taking the cognizance, rectify the illegality by passing an order under Section 473 of Cr.P.C. so as to operate 7. The learned counsel also relied upon the Bombay High Court judgment in the case of KHALID AKHTAR ABDUL LATIF AHEMI v. THE STATE OF MAHARASHTRA passed in Criminal Application No.1665/2009 dated 30.06.2010 wherein exercising the power under Section 482 of Cr.P.C., the Bombay High Court discussed Sections 468, 469, 470 and 473 of Cr.P.C. and held that the Court is duty bound on the presentation of the charge-sheet to consider the question of limitation and to see as to whether it is competent to take cognizance and whether the limitation has expired or not. 8. The learned counsel also relied upon the Delhi High Court judgment in the case of SAREGAMA INDIA LTD. v. STATE NCT OF DELHI passed in Crl.M.C.No.149/2007 delivered on 27.01.2014, wherein the Delhi High Court discussed Section 468 of Cr.P.C. regarding taking of cognizance after lapse of period of limitation and also discussed Section 473 of Cr.P.C. which extends the period of limitation. 9. The learned counsel also relied upon the Apex Court judgment in the case of STATE OF HIMACHAL PRADESH v. TARA DUTT AND ANOTHER passed in Appeal (Crl.) No.1224/1999 delivered on 19.11.1999 wherein the Apex Court discussed Sections 468 and 473 of Cr.P.C. and observed that the discretion conferred on the Court has to be exercised judicially and on well recognized principles. While exercising the discretion, the same must be by a speaking order, indicating the satisfaction of the Court that the delay was satisfactorily explained and condonation of the same was in the interest of 10. The learned counsel also relied upon the Allahabad High Court judgment in the case of KAMLA KANT SINGH v. AND COMPANY LTD. AND OTHERS passed in Criminal Rev.No.667/1985 dated 27.07.1987, wherein it is discussed with regard to Section 298 of IPC. Under Section 298 of IPC what has been made punishable, is uttering words etc. with deliberate intention to wound religious feelings. What is to be marked is that even to wound the religious feelings is not punishable unless it is with deliberate intention. Deliberate intention means premeditated intention with sole object to wound the religious feelings. It is better to have the object in enacting Section 298 of IPC. The authors or the framers of the Code say that a warm expression dropped in the heat of controversy, or an argument urged by any person, not for the purpose of insulting and annoying the professors of a different creed, but in good faith for the purpose of vindicating his own, will not fall under the definition contained in this clause. 11. The learned counsel also relied upon the judgment of the Apex Court in the case of KRISHNA LAL CHAWLA AND OTHERS v. STATE OF U.P. AND ANOTHER passed in Criminal Appeal No.283/2021 delivered on 08.03.2021, wherein the Apex Court referring to paragraph No.28 of the judgment in the case of Pepsi Foods Ltd. v. Special Judicial Magistrate held that the power to issue a summoning order is a matter of grave importance, and that the Magistrate must only allow criminal law to take its course after satisfying himself that there is a real case to be made. The learned counsel also brought to the notice of this Court paragraph No.18 of the judgment wherein the Apex Court has observed that the Trial Courts have the power to not merely decide on acquittal or conviction of the accused person after the trial, but also the duty to nip frivolous litigations in the bud even before they reach the stage of trial by discharging the accused in fit cases. This would not only save judicial time that comes at the cost of public money, but would also protect the right to liberty that every person is entitled to under Article 21 of 12. The learned counsel referring the above judgments would submit that the proceedings initiated against the petitioners is liable to be quashed on the ground of limitation and also on merits. The learned Magistrate has not applied his judicious mind while taking the cognizance. 13. Per contra, the learned High Court Government Pleader appearing for respondent No.1 – State would contend that the Court has to take note of the date of the complaint and not filing of the charge-sheet. The incident was taken place on 06.12.2016 and the charge-sheet was filed on 08.06.2020. The learned counsel would contend that no application is filed under Section 473 of Cr.P.C. to condone the delay. The learned counsel would contend that the Constitutional Bench judgment of the Apex Court in the case of SARAH MATHEW AND OTHERS OTHERS reported in AIR 2014 SC 448 has held that when on a petition or complaint being filed before Magistrate, then a Magistrate applies his mind for proceeding under the various provisions of Chapter XIV of Cr.P.C. then it must be held to have taken cognizance of the offences mentioned in the complaint. The Apex Court also discussed Sections 468 and 473 of Cr.P.C. and held that the Magistrate has the power to take cognizance of an offence only if complaint in respect of, it is filed within prescribed limitation period. The Magistrate would however be entitled to exclude such time as is legally excludable. Section 473 of Cr.P.C. has a non-obstante clause which means that it has an overriding effect on Section 468 of Cr.P.C. For the purpose of computing the period of limitation under Section 468 of Cr.P.C., the relevant date is the date of filing of complaint or the date of institution of process and not the date on which the Magistrate takes cognizance. 14. The learned counsel referring this judgment would contend that this judgment is on the point and hence the judgments referred by the learned counsel for the petitioners are not applicable to the case on hand when the Constitutional Bench has delivered the judgment holding that for the purpose of computing the period of limitation under Section 468 of Cr.P.C. the relevant date is the date of filing of the complaint. The learned counsel would also contend that the FIR discloses that the cognizable offence was taken place and there was no delay in lodging the complaint and the FIR constitutes the offence i.e., degrading the other religions. No fundamental right is conferred on any religion to degrade the other religion. The same is a mixed question of fact and law and hence there cannot be any quashing of the proceedings against the petitioners. 15. In reply to the arguments of the learned High Court Government Pleader, the learned counsel for the petitioners would contend that the offences which have been invoked against the petitioners are barred by limitation and hence there cannot be any criminal prosecution against the petitioners. 16. Having heard the respective contention of both the counsel, this Court has to analyze the material available on record with the principles laid down by the judgments referred supra. It is settled law that the initiation of the criminal prosecution is a serious matter and the Apex Court in the recent judgment in the case of Krishna Lal Chawla (supra) held that the learned Magistrate has to take note of the materials placed before the Court and in paragraph No.18 it is held that it is the duty of the Magistrate to nip frivolous litigations in the bud even before they reach the stage of trial by discharging the accused in fit cases. 17. The learned counsel for the petitioners would contend that the charge-sheet is filed after 3½ years. It is also not in dispute that the incident was taken on 06.12.2016 and the charge-sheet was filed on 08.06.2020. It is an admitted fact that no application is filed under Section 473 of Cr.P.C. The Apex Court in the judgment in the case of Sarah Mathew (supra) discussed the scope of Sections 468 and 473 of Cr.P.C. The Apex Court categorically held that for the purpose of computing the period of limitation under Section 468 of Cr.P.C., the relevant date is the date of filing of complaint or the date of institution of process and not the date on which the Magistrate takes cognizance. In the case on hand, no doubt the cognizance is taken after filing of delayed charge-sheet, but the fact is that the complaint was given on 06.12.2016. When the Apex Court held that for the purpose of computing the period of limitation under Section 468 of Cr.P.C., the relevant date is the date of filing of complaint and in the case on hand, there was no delay in lodging the complaint and the complaint was filed on the very same day. 18. It is important to note that an allegation is made in the complaint that the accused persons have degraded the other religions stating that neither Bhagavadgita nor Quran will provide any peace of mind or comes to any rescue of any person except Yesu Christa. It is rightly pointed out by the learned counsel for the respondent/complainant that no fundamental right is given to any religion to degrade other religions. In the case on hand, specific allegation against the petitioners is that they have degraded the other religion. When such being the case, the very contention of the learned counsel for the petitioners that the charge-sheet is filed after delayed period cannot be accepted when the Constitutional Bench says that for the purpose of computing the period of limitation under Section 468 of Cr.P.C. the relevant date is the date of filing of complaint. I have already pointed out that there is no delay in lodging the complaint. The Apex Court in the case of Sarah Mathew (supra) discussed in detail regarding applicability of the period of limitation and computation of limitation in paragraph No.21 of the judgment after discussing Sections 467 to 473 of Cr.P.C. and so also discussed with regard to the words ‘taking cognizance’ has not been defined in the Code. Hence, the first contention that the proceedings initiated against the petitioners is barred by limitation cannot be accepted. 19. The second contention on merits is concerned is that the Magistrate has not applied his mind while taking the cognizance. On perusal of the impugned order at Annexure-A, the learned Magistrate after receiving the charge-sheet and the relevant documents, perused the same and found prima facie materials available on record to proceed against accused Nos.1 and 2. The learned Magistrate invoking Section 190(1)(b) of Cr.P.C. took the cognizance for the offence punishable under Section 298 read with Section 34 of IPC. It is settled law that while taking the cognizance, the learned Magistrate need not pass any elaborate order and it requires application of mind whether charge-sheet material and its enclosures constitute a prima facie material to proceed against the accused. When the learned Magistrate has applied his judicious mind while taking the cognizance, the very contention that the learned Magistrate has not applied his judicious mind cannot be accepted. 20. The other contention of the learned counsel for the petitioners that taking of cognizance violates Articles 14, 21 and 25 of the Constitution of India cannot be accepted for the reason that I have already pointed out that while professing any religion, the religious heads or professing by any person should not degrade other religion. Having perused the complaint averments and also the statements of the witnesses, it is specific that while propagating they specifically mentioned that other religious scripts does not say anything about anticipation of tsunami and only Yesu Christa can protect them. When such allegations are made in the complaint, the very contention of the learned counsel for the petitioners that the offences invoked against the petitioners does not attract the ingredients of Section 298 of IPC cannot be accepted. No doubt, while setting the law in motion invoked Section 295(A) of IPC regarding deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs and after the investigation, the Investigating Officer invoked Section 298 of IPC uttering, words, etc. with deliberate intention to wound the religious feelings of any person. Having taken note of the complaint averments and also the statement of witnesses, with deliberate intention to wound the religious feelings of other religion words are uttered while propogating. When such being the facts of the case, it attracts Section 298 of IPC. Hence, the contentions of the learned counsel for the petitioners that the charges levelled against the petitioners does not attract Section 298 of IPC and issue of process against the petitioners would vitiates Articles 14, 21 and 25 of the Constitution of India, cannot be accepted. 21. In view of the discussions made above, I pass the The petition is rejected. In view of rejection of the main petition, I.As, if any, does not survive for consideration and the same stands disposed of.
The Karnataka High Court stated that no religion has a basic legal right to insult or put down other religions. Justice HP Sandesh repeated this point, saying that religious leaders or anyone practicing their faith should not put down other religions. He made this observation when he decided not to cancel a criminal complaint against someone accused of insulting a religion. A woman had filed a complaint. She claimed that the person accused came to her home and insulted other religions. The accused said that neither the Bhagavad-Gita nor the Quran could offer peace or help, only Jesus Christ could. The accused then asked the High Court to stop the case from moving forward. They argued that continuing the case went against their basic rights to equality, life, and freedom of religion, as laid out in the Indian Constitution. When the court looked at the request to stop the case, it noted that there were clear accusations that the accused had insulted other religions. The court again stated that religious leaders and anyone practicing their faith should not insult other religions. It noted that after reviewing the complaint and witness reports, it was clear that while sharing their beliefs, the accused specifically said that other religious texts did not mention tsunamis and that only Jesus Christ could protect people. Given these accusations, the court disagreed with the accused's lawyers. The lawyers argued that the actions did not meet the definition of Section 298 of the Indian Penal Code (IPC). This section deals with saying words with a clear plan to hurt someone's religious feelings. The court explained that the case first started under Section 295(A) of the IPC, which covers intentional acts meant to deeply offend religious beliefs. But after investigation, the police decided Section 298 IPC was more fitting. Since words were spoken with a clear intention to hurt the religious feelings of others during their preaching, the court found that the case did fit Section 298 IPC. For these reasons, the court rejected the accused's claims that the charges were wrong or that continuing the case would violate their basic rights to equality, life, and freedom of religion. The court then dismissed their request.
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This Criminal Revision Case is filed by the petitioner aggrieved by the order dated 06.04.2022 passed by the learned Judicial Magistrate No.I, Villupuram, in CMP.No.951 of 2021 in C.C.No.220 of 2020, whereby the application filed for further investigation on behalf of the prosecution under Section 173(8) of Cr.P.C., was rejected by the Trial Court. 2.The gist of the allegation in this case against the accused is that making a false promise to get a job as Assistant Engineer in the TNEB the accused had obtained money from the defacto complainant and cheated him. By directing the de-facto complainant to come to various places to hand over the amount, payments of money in cash were accepted by the accused. On 28.07.2018, a sum of Rs.10 Lakhs, was given at Woodlands Hotel at Villupuram. On 29.07.2018, a further sum of Rs.2 Lakhs was given at Elles Chathram Road corner. Another sum of Rs.3 Lakhs was given on 09.08.2018 at Appollo Medical Shop situated at Trichy to Chennai Road in Villupuram, a sum of Rs.5 Lakhs was given on 07.09.2018, at Avin Milk Shop situated at Villupuram District Collector office and a sum of Rs.2,50,000/- was given on 14.11.2018, near the Central Co-operative Bank. In the places mentioned in the complaint by the de-facto complainant, the CCTV footages were not collected by the prosecution during the course of investigation. This apart the accused had also contacted the defacto complainant in his mobile No.9443152542 to 9894298278 and the CDR particulars were not collected during the course of investigation. Further, in respect to certain documents produced along with the final report certificates as required under Section 65B of The Indian Evidence Act were not furnished. Therefore, for conducting further investigation and bringing all these materials on record and the application was filed on behalf of the prosecution. The said application was dismissed by the Trial Court by passing the following order :- ''The petition has been filed by the learned Additional Publice Prosecutor for ording further investigation. Accordingly to him the CCTV footage and CDR details are not collected by the Investigation Officer. Perused records it is seen that the trial has already been cammenced hence the petition filed and the learned APP on his own instance is not maintanable. Accordingly this Petition is dismissed.'' 3.The learned Counsel appearing on behalf of the revision petitioner would submit that firstly, the reasoning that the application is filed by the Additional Public Prosecutor on his own is factually incorrect and it is filed on the instructions of the respondent/Police. The second reasoning that the trial has already commenced and the petition need not to be entertained is fallacious. In support of his contention, he would rely upon the Judgment of the Hon'ble Supreme Court of India, in Sri Bhagwan Samardha Sreepada Vs. State of Andhra Pradesh & Ors1, wherein in paragraph No.2 it was held as follows:- '' ..... Powers of the police to conduct further investigation, after laying final report, is recognised under Section 173(8) of the Code of Criminal Procedure. Even after the court took cognizance of any investigation. This has been so stated by this Court in Ram Lal Narang v. State (Delhi Admn.) (AIR 1979 SC 1791). The only rider provided by the aforesaid decision is that it would be desirable that the police should inform the court and seek formal permission to make further investigation. In such a situation the power of the court to direct the police to conduct further investigation cannot have any inhibition.....'' 4.He would further rely upon the Judgment of the Hon'ble Supreme Court of India, in Rama Chaudhary v. State of Bihar2, more specifically mentioned the paragraph Nos.12 & 13, which reads as follows:- ''12.If we consider the above legal principles, the order dated 19.02.2008 of the trial Court summoning the witnesses named in the supplementary charge-sheet cannot be faulted with. It is true that after enquiry and investigation charges were framed on 11.03.2004 and thereafter in the course of trial about 21 witnesses were examined. In the meantime, Police submitted supplementary charge-sheet with certain new materials and on the basis of supplementary charge-sheet, the prosecution filed an application on 12.01.2008 in a pending Sessions Trial No.63 of 2004 to the trial Court for summoning the persons named in the charge-sheet for their examination as prosecution witnesses. On a careful perusal of the application, the trial Court, by order dated 19.02.2008, allowed the same and has summoned those witnesses named in the permission from the Magistrate for further investigation. It is settled law that carrying out further investigation even after filing of the charge- sheet is a statutory right of the Police. [vide K.Chandrasekar vs. State of Kerala and Others, (1998) 5 SCC 223.] The material collected in further investigation cannot be rejected only because it has been filed at the stage of trial. The facts and circumstances show that the trial Court is fully justified to summon witnesses examined in the course of further investigation. It is also clear from Section 231 of the Cr.P.C., that the prosecution is entitled to produce any person as witness even though such person is not named in the earlier charge-sheet. All those relevant aspects have been taken note of by the learned Magistrate while summoning the witnesses based on supplementary charge-sheet. This was correctly appreciated by the High Court by rightly rejecting the revision. We fully agree with the said conclusion.'' 5.The learned Government Advocate (Crl.side) appearing on behalf of the first respondent/Police would support the petitioner by stating that in this case, the findings of the learned Magistrate that the learned Additional Public Prosecutor filed the application on his own is incorrect and the application was filed on behalf of the prosecution. He would submit that further investigation is necessary to establish the truth in this case. 6.Mr.A.Arasu Ganesan, learned Counsel appearing on behalf of the second respondent/accused would submit that the accused resisted the application before the trial court. He would submit that only the prosecution is entitled to file the application for further investigation. In this case, it is the de-facto complainant who filed the revision before this Court and therefore, the revision is not maintainable. In respect of this proposition, he would rely upon the Judgment of this Court, in M.Viswanathan vs. State and Ors3, more specifically mentioned in paragraph No.9, which reads as https://www.mhc.tn.gov.in/judis of 2012 dated 27.07.2017 Crl.R.C.No.654 of 2022 ''As per the order of the Hon'ble Supreme Court in the above case, the Hon'ble Supreme Court has clarified the terms re-investigation and further investigation. As per the interpretation, further investigation is ordered, based on the additional material or evidence collected by the Police/Prosecution. However, re-investigation is ordered when the earlier investigation improperly conducted and not sustainable in law, to meet the ends of justice. Therefore, as per the provision of Section 173(8) of Cr.P.C., the aggrieved parties namely, the Police/Prosecution on collection of additional materials or evidence, the prosecution can seek for further investigation, but the case in hand, the defacto-complainant have no right for furhter investigation through the second respondent Central Bureau of Investigation.'' 7.It is his second contention that after the commencement of the trial, the application was filed. For the same proposition, he would rely upon another Judgment of the Hon'ble Supreme Court of India, in Reetha Nag vs. State of West Bengal & Ors4, more specifically in paragraph No.20 of the said Judgment, which reads as follows:- ''20.In the instant case, the investigating authorities did not apply for further investigation and it was only upon the application filed by the defacto complainant under Section 173(8), was a direction given by the learned Magistrate to re- investigate the matter. As we have already indicated above, such a course of action was beyond the jurisdictional competence of the Magistrate. Not only was the Magistrate wrong in directing a re-investigation on the application made by the de facto complainant, but he also exceeded his Crl.R.C.No.654 of 2022 jurisdiction in entertaining the said application filed by the de facto complainant.'' 8.He would further submit that this revision preferred by the de- facto complainant that too belatedly should not be entertained by this Court and he prayed for dismissal of the revision petition. 9. I have considered the rival submissions made on either side and perused the material records of this case. The following questions arise for consideration in the present Revision:- (i) Whether or not the Revision filed by the de-facto complainant against the order of the learned Magistrate dismissing the application filed by the prosecution under Section 173(8) of Cr.P.C., is maintainable? (ii) Whether the learned Magistrate was right in rejecting the application for further investigation on the ground that the trial is 10. In this case, the application for further investigation is filed by the prosecution and not by the de-facto complainant. As far as the judgments relied upon the learned Counsel for the petitioner in M.Viswanathan vs. State and Ors. (cited supra), it may be seen from the passage extracted above, when the prosecution has filed the Final Report, the de-facto complainant made a prayer that there should further investigation by the Central Bureau of Investigation, which was rejected in that case. As far as the case in Reetha Nag vs. State of West Bengal & Ors. (cited supra) is concerned, it was again holding that the learned Magistrate was not competent in directing the re-investigation and the power is given only to the prosecution under Section 173(8) of Cr.P.C. It is also pertinent to state here that even in respect of the power of the learned Magistrate, the judgment in Reetha Nag vs. State of West Bengal & Ors. (cited supra) has been expressely overruled by the Hon'ble Supreme Court of India in Vinubhai Haribhai Malaviya Versus the State of Gujarat5. On the other hand, the application in this case is filed only by the prosecution and if the learned Magistrate had rejected the same, this Court, in exercise of its power under Section 397 of Cr.P.C., is entitled to examine the correctness of the said revisable order. 11. In this connection, the de-facto complainant, by filing the Revision, is only bringing to the notice of this Court. In this context,it is Crl.R.C.No.654 of 2022 relevant to refer to the dictum of the Hon'ble Supreme Court of India in Rekha Murarka Vs. The State of West Bengal 6, which is reproduced hereunder, reads as follows:- “12.5. However, even if there is a situation where the Public Prosecutor fails to highlight some issue of importance despite it having been suggested by the victim’ s counsel, the victim’ s counsel may still not be given the unbridled mantle of making oral arguments or examining witnesses. This is because in such cases, he still has a recourse by channelling his questions or arguments through the Judge first. For instance, if the victim’ Prosecutor has not examined a witness properly and not incorporated his suggestions either, he may bring certain questions to the notice of the Court. If the Judge finds merit in them, he may take action accordingly by invoking his powers under Section 311 of the CrPC or Section 165 of the Indian Evidence Act, 1872. In this regard, we agree with the observations made by the Tripura High Court in Smt. Uma Saha v. State of Tripura 2014 SCC OnLine Tri 859 that the victim’s counsel has a limited right of assisting the prosecution, which may extend to suggesting questions to the Court or the prosecution, but not putting them by himself.”' ' (Emphasis supplied) Thus, (i) by filing the revision, the defacto complainant is only brining to the notice of this court of his perception that an erroneous order is passed which according to him will lead to injustice and therefore, would not amount to taking over of the prosecution; (ii) second, there is no express embargo Section 372 of Cr.P.C., for the defacto complainant to invoke the Crl.R.C.No.654 of 2022 jurisdiction of this Court and therefore the principle of private lawyer taking over the prosecution cannot be extrapolated to the situation on hand. Accordingly, I answer the question that the Revision filed by the de-facto complainant is maintainable and is in order. 12. As submitted by the learned Counsel for the petitioner, the Hon'ble Supreme Court of India in Rama Chaudhary v. State of Bihar (cited supra) of which paragraph No.12 is quoted supra, clearly holds that the application for further investigation can be made even after the commencement of trial. Further, the Hon'ble Supreme Court of India in Hasanbhai Valibhai Qureshi v. State of Gujarat7. “13. In Ram Lal Narang v. State (Delhi Admn.) it was observed by this Court that further investigation is not altogether ruled out merely because cognisance has been taken by the court. When defective investigation comes to light during course of trial, it may be cured by further investigation, if circumstances so permitted. It would ordinarily be desirable and all the more so in this case, that the police should inform the court and seek formal permission to make further investigation when fresh facts come to light instead of being silent over the matter keeping in view only the need for an early trial since an effective trial for real or actual offences found during course of proper investigation is as much relevant, desirable and necessary as an expeditious disposal of the matter by the courts. In view of the aforesaid position in law, if there is necessity for further investigation, the same can certainly be done as prescribed by law. The mere fact that there may be further delay in concluding the trial should not stand in the way of further investigation if that would help the court in arriving at the truth and do real and substantial as well as effective justice. We make it clear that we have not expressed any final opinion on the merits of the case.“ (empahsis supplied) 13. Similarly, the Hon'ble Supreme Court of Indian in Ram Lal Narang and Ors. vs. State (Delhi Administration)8, held in paragraph „21. ………In our view, notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the 1898 Code, the right of the police to further investigate was not exhausted and the police could exercise such right as often as necessary when fresh information came to light. Where the police desired to make a further investigation, the police could express their regard and respect for the Court by seeking its formal permission to make further investigation.“ (emphasis supplied) Therefore, in view of the same, the application for further investigation is maintainable even after the commencement of trial. 14. As far as the judgment of the Hon'ble Supreme Court of India in Vinubhai Haribhai Malaviya Versus the State of Gujarat (cited supra), though in paragraph No.38, it has been mentioned that the power of Police to further investigate the offence continues till the stage of the trial commences, but, however, it may be seen that even in the said judgment, the views expressed in the above two judgments of the Hon'ble Supreme Court of India in Hasanbhai Valibhai Qureshi v. State of Gujarat (cited supra) and Ram Lal Narang and Ors. vs. State (Delhi Administration) (cited supra) were approved. Further, a learned Judge of this Court, already in Ravi vs. The Inspector of Police, Kothagiri Circle9 , has considered the said judgment and has held that since the question decided was relating to the power of the learned Magistrate, the question as to whether the further investigation can be carried after commencement of the trial or not not being a question considered in the said judgment, the same cannot be considered as an authoritative pronouncement of the Hon'ble Supreme Court in respect of the question on hand and held that the prosecution is entitled to seek for further investigation even after commencement of trial. It is useful to extract the paragraph No.32 of the judgment, which reads as “32. In view of the same, this Court holds that the investigating agency/Police invoking Section 173(8) Cr.P.C., at any stage of the criminal proceedings cannot be doubted, objected and faulted with.“ 15. Section 173(8) of Cr.P.C., does not place any fetter on the Police to conduct further investigation in the case after commencement of trial and whenever they come across any additional information it is just and necessary that the same be brought to the notice of the Court. It is important to note that the Hon'ble Supreme Court of India in Vinubhai Haribhai Malaviya Vs. the State of Gujarat (cited supra) itself has clearly held that the purpose of further investigation is that any person who has wrongly been prosecuted cannot suffer the same and any person, who was actually committed the offence, should not escape punishment. In that view of the matter, since bringing out the truth is the primordial purpose of investigation and the present application serves the said purpose, I am of the view that the application filed by the prosecution even after the commencement of the trial in this case is maintainable and I answered the question accordingly. (i) The order of the learned Judicial Magistrate No.I, Villupuram in CMP.No.951 of 2021 in C.C.No.220 of 2020 is set aside. (ii) The application filed in CMP.No.951 of 2021 in C.C.No.220 of 2020 on the file of the Judicial Magistrate No.I, Villupuram is allowed; (iii) It is made clear that the observations made in this Order are for the purpose of disposing the application for further investigation alone and shall not have any bearing on the merits of the case. Speaking / Non-Speaking order 3.The Public Prosecutor, High Court of Madras.
The Madras High Court recently reviewed and approved a request to change a lower court judge's decision. This decision had initially turned down a request for more investigation. The High Court said that even after a trial has begun, a request for more investigation can still be made. The court felt finding the truth was extremely important. It also stated that a specific legal rule (Section 173(8) of the Code of Criminal Procedure, or CrPC) does not limit the police from doing more investigation once a trial has started. Justice Bharatha Chakravarthy explained this further. He said that Section 173(8) of the CrPC does not stop the police from carrying out more investigation even after a trial has begun. If the police find new information, it is right and necessary to tell the court about it. He added that the most important goal of any investigation is to uncover the truth. Since this current request helps achieve that goal, he believed the request filed by the prosecution (the legal team representing the government) was valid, even though the trial had already started. The High Court referred to a decision by the Supreme Court in an earlier case called HasanbhaiValibhai Qureshi v. State of Gujarat. In that case, the Supreme Court said that if an investigation was done poorly and this becomes clear during a trial, it can be fixed with more investigation, if the situation allows. Given this legal view, if there's a need for more investigation, it should definitely be carried out as the law permits. The court added that even if more investigation causes the trial to take longer, this delay should not stop it. The main goal is to help the court find the truth and deliver fair and real justice. The Supreme Court has supported this idea in many of its past decisions. The court also pointed out that the reason for doing more investigation is to make sure innocent people who were wrongly charged don't suffer. At the same time, it ensures that anyone who truly committed a crime does not get away without punishment. The Supreme Court expressed this view in the case of Vinubhai Haribhai Malaviya Vs. the State of Gujarat. Therefore, it was important to allow more investigation to uncover the truth. **Background** The main point of this specific case was that the person charged with the crime (the accused) had made a fake promise. He told the victim (the de facto complainant) he could get them a job as an Assistant Engineer at TNEB. He then took money from the victim many times and in different places, essentially cheating them. In the initial investigation, security camera footage from the places where the money was exchanged was not collected. Also, the records of calls made on the mobile phones used for communication were missing. A specific legal certificate (a Section 65B certificate, required for digital evidence under the Indian Evidence Act) for some documents was also not provided. To get all this missing evidence into the case, the prosecution (the government's legal team) filed a request for more investigation. However, the trial court turned down this request. The trial court said that the trial had already started and that the request was filed by a government lawyer (the Additional Public Prosecutor) on his own, without proper instruction. Because of this rejection, the victim (the de facto complainant) filed a new request to have the trial court's decision reviewed. It was argued that the request for more investigation was filed because the police asked for it, not because the government lawyer acted on his own, as the trial court had claimed. The police involved in the case (the Respondent Police) also supported this argument. The person who filed the request for review (the victim) also argued that the trial court's second reason was wrong. That reason was that because the trial had already started, the request for more investigation should not be considered. On the other side, the person accused in the case disagreed with these arguments. He stated that only the prosecution (the government's legal team) had the right to file a request for more investigation. He pointed out that in this case, the request was filed by the victim. He also argued that the request was made after the trial had already begun. Therefore, he asked that the victim's request, which was also filed too late, should not be considered and should be rejected. **Revision Application Filed By Defacto Complainant** One of the main arguments against considering the request for review was that it had been filed by the victim. The accused challenged this, claiming that only the prosecution could file such a request. To support his argument, he referred to an earlier decision by the Madras High Court in the case of M.Viswanathan vs. State and Ors. In that case, the court had noted that a victim did not have the right to ask for more investigation. However, the court noted that in this current case, the prosecution had originally filed the request for more investigation, and a lower court judge had rejected it. Therefore, the High Court had the right to check if that rejection was correct. The victim was simply bringing this issue to the court's attention. Referring to a decision by the Supreme Court in the case of Rekha Murarka Vs. The State of West Bengal, the court noted that when the victim filed the request for review, they were simply telling the court that a mistaken decision had been made, which they believed would lead to unfairness. This action would not mean they were taking control of the case from the government's lawyers. The court also pointed out that there was no clear legal ban in Section 372 of the CrPC that stopped a victim from bringing such an issue to the court. For these reasons, the court decided that the request for review was valid and could be considered.
This Criminal Revision Case is filed by the petitioner aggrieved by the order dated 06.04.2022 passed by the learned Judicial Magistrate No.I, Villupuram, in CMP.No.951 of 2021 in C.C.No.220 of 2020, whereby the application filed for further investigation on behalf of the prosecution under Section 173(8) of Cr.P.C., was rejected by the Trial Court. 2.The gist of the allegation in this case against the accused is that making a false promise to get a job as Assistant Engineer in the TNEB the accused had obtained money from the defacto complainant and cheated him. By directing the de-facto complainant to come to various places to hand over the amount, payments of money in cash were accepted by the accused. On 28.07.2018, a sum of Rs.10 Lakhs, was given at Woodlands Hotel at Villupuram. On 29.07.2018, a further sum of Rs.2 Lakhs was given at Elles Chathram Road corner. Another sum of Rs.3 Lakhs was given on 09.08.2018 at Appollo Medical Shop situated at Trichy to Chennai Road in Villupuram, a sum of Rs.5 Lakhs was given on 07.09.2018, at Avin Milk Shop situated at Villupuram District Collector office and a sum of Rs.2,50,000/- was given on 14.11.2018, near the Central Co-operative Bank. In the places mentioned in the complaint by the de-facto complainant, the CCTV footages were not collected by the prosecution during the course of investigation. This apart the accused had also contacted the defacto complainant in his mobile No.9443152542 to 9894298278 and the CDR particulars were not collected during the course of investigation. Further, in respect to certain documents produced along with the final report certificates as required under Section 65B of The Indian Evidence Act were not furnished. Therefore, for conducting further investigation and bringing all these materials on record and the application was filed on behalf of the prosecution. The said application was dismissed by the Trial Court by passing the following order :- ''The petition has been filed by the learned Additional Publice Prosecutor for ording further investigation. Accordingly to him the CCTV footage and CDR details are not collected by the Investigation Officer. Perused records it is seen that the trial has already been cammenced hence the petition filed and the learned APP on his own instance is not maintanable. Accordingly this Petition is dismissed.'' 3.The learned Counsel appearing on behalf of the revision petitioner would submit that firstly, the reasoning that the application is filed by the Additional Public Prosecutor on his own is factually incorrect and it is filed on the instructions of the respondent/Police. The second reasoning that the trial has already commenced and the petition need not to be entertained is fallacious. In support of his contention, he would rely upon the Judgment of the Hon'ble Supreme Court of India, in Sri Bhagwan Samardha Sreepada Vs. State of Andhra Pradesh & Ors1, wherein in paragraph No.2 it was held as follows:- '' ..... Powers of the police to conduct further investigation, after laying final report, is recognised under Section 173(8) of the Code of Criminal Procedure. Even after the court took cognizance of any investigation. This has been so stated by this Court in Ram Lal Narang v. State (Delhi Admn.) (AIR 1979 SC 1791). The only rider provided by the aforesaid decision is that it would be desirable that the police should inform the court and seek formal permission to make further investigation. In such a situation the power of the court to direct the police to conduct further investigation cannot have any inhibition.....'' 4.He would further rely upon the Judgment of the Hon'ble Supreme Court of India, in Rama Chaudhary v. State of Bihar2, more specifically mentioned the paragraph Nos.12 & 13, which reads as follows:- ''12.If we consider the above legal principles, the order dated 19.02.2008 of the trial Court summoning the witnesses named in the supplementary charge-sheet cannot be faulted with. It is true that after enquiry and investigation charges were framed on 11.03.2004 and thereafter in the course of trial about 21 witnesses were examined. In the meantime, Police submitted supplementary charge-sheet with certain new materials and on the basis of supplementary charge-sheet, the prosecution filed an application on 12.01.2008 in a pending Sessions Trial No.63 of 2004 to the trial Court for summoning the persons named in the charge-sheet for their examination as prosecution witnesses. On a careful perusal of the application, the trial Court, by order dated 19.02.2008, allowed the same and has summoned those witnesses named in the permission from the Magistrate for further investigation. It is settled law that carrying out further investigation even after filing of the charge- sheet is a statutory right of the Police. [vide K.Chandrasekar vs. State of Kerala and Others, (1998) 5 SCC 223.] The material collected in further investigation cannot be rejected only because it has been filed at the stage of trial. The facts and circumstances show that the trial Court is fully justified to summon witnesses examined in the course of further investigation. It is also clear from Section 231 of the Cr.P.C., that the prosecution is entitled to produce any person as witness even though such person is not named in the earlier charge-sheet. All those relevant aspects have been taken note of by the learned Magistrate while summoning the witnesses based on supplementary charge-sheet. This was correctly appreciated by the High Court by rightly rejecting the revision. We fully agree with the said conclusion.'' 5.The learned Government Advocate (Crl.side) appearing on behalf of the first respondent/Police would support the petitioner by stating that in this case, the findings of the learned Magistrate that the learned Additional Public Prosecutor filed the application on his own is incorrect and the application was filed on behalf of the prosecution. He would submit that further investigation is necessary to establish the truth in this case. 6.Mr.A.Arasu Ganesan, learned Counsel appearing on behalf of the second respondent/accused would submit that the accused resisted the application before the trial court. He would submit that only the prosecution is entitled to file the application for further investigation. In this case, it is the de-facto complainant who filed the revision before this Court and therefore, the revision is not maintainable. In respect of this proposition, he would rely upon the Judgment of this Court, in M.Viswanathan vs. State and Ors3, more specifically mentioned in paragraph No.9, which reads as https://www.mhc.tn.gov.in/judis of 2012 dated 27.07.2017 Crl.R.C.No.654 of 2022 ''As per the order of the Hon'ble Supreme Court in the above case, the Hon'ble Supreme Court has clarified the terms re-investigation and further investigation. As per the interpretation, further investigation is ordered, based on the additional material or evidence collected by the Police/Prosecution. However, re-investigation is ordered when the earlier investigation improperly conducted and not sustainable in law, to meet the ends of justice. Therefore, as per the provision of Section 173(8) of Cr.P.C., the aggrieved parties namely, the Police/Prosecution on collection of additional materials or evidence, the prosecution can seek for further investigation, but the case in hand, the defacto-complainant have no right for furhter investigation through the second respondent Central Bureau of Investigation.'' 7.It is his second contention that after the commencement of the trial, the application was filed. For the same proposition, he would rely upon another Judgment of the Hon'ble Supreme Court of India, in Reetha Nag vs. State of West Bengal & Ors4, more specifically in paragraph No.20 of the said Judgment, which reads as follows:- ''20.In the instant case, the investigating authorities did not apply for further investigation and it was only upon the application filed by the defacto complainant under Section 173(8), was a direction given by the learned Magistrate to re- investigate the matter. As we have already indicated above, such a course of action was beyond the jurisdictional competence of the Magistrate. Not only was the Magistrate wrong in directing a re-investigation on the application made by the de facto complainant, but he also exceeded his Crl.R.C.No.654 of 2022 jurisdiction in entertaining the said application filed by the de facto complainant.'' 8.He would further submit that this revision preferred by the de- facto complainant that too belatedly should not be entertained by this Court and he prayed for dismissal of the revision petition. 9. I have considered the rival submissions made on either side and perused the material records of this case. The following questions arise for consideration in the present Revision:- (i) Whether or not the Revision filed by the de-facto complainant against the order of the learned Magistrate dismissing the application filed by the prosecution under Section 173(8) of Cr.P.C., is maintainable? (ii) Whether the learned Magistrate was right in rejecting the application for further investigation on the ground that the trial is 10. In this case, the application for further investigation is filed by the prosecution and not by the de-facto complainant. As far as the judgments relied upon the learned Counsel for the petitioner in M.Viswanathan vs. State and Ors. (cited supra), it may be seen from the passage extracted above, when the prosecution has filed the Final Report, the de-facto complainant made a prayer that there should further investigation by the Central Bureau of Investigation, which was rejected in that case. As far as the case in Reetha Nag vs. State of West Bengal & Ors. (cited supra) is concerned, it was again holding that the learned Magistrate was not competent in directing the re-investigation and the power is given only to the prosecution under Section 173(8) of Cr.P.C. It is also pertinent to state here that even in respect of the power of the learned Magistrate, the judgment in Reetha Nag vs. State of West Bengal & Ors. (cited supra) has been expressely overruled by the Hon'ble Supreme Court of India in Vinubhai Haribhai Malaviya Versus the State of Gujarat5. On the other hand, the application in this case is filed only by the prosecution and if the learned Magistrate had rejected the same, this Court, in exercise of its power under Section 397 of Cr.P.C., is entitled to examine the correctness of the said revisable order. 11. In this connection, the de-facto complainant, by filing the Revision, is only bringing to the notice of this Court. In this context,it is Crl.R.C.No.654 of 2022 relevant to refer to the dictum of the Hon'ble Supreme Court of India in Rekha Murarka Vs. The State of West Bengal 6, which is reproduced hereunder, reads as follows:- “12.5. However, even if there is a situation where the Public Prosecutor fails to highlight some issue of importance despite it having been suggested by the victim’ s counsel, the victim’ s counsel may still not be given the unbridled mantle of making oral arguments or examining witnesses. This is because in such cases, he still has a recourse by channelling his questions or arguments through the Judge first. For instance, if the victim’ Prosecutor has not examined a witness properly and not incorporated his suggestions either, he may bring certain questions to the notice of the Court. If the Judge finds merit in them, he may take action accordingly by invoking his powers under Section 311 of the CrPC or Section 165 of the Indian Evidence Act, 1872. In this regard, we agree with the observations made by the Tripura High Court in Smt. Uma Saha v. State of Tripura 2014 SCC OnLine Tri 859 that the victim’s counsel has a limited right of assisting the prosecution, which may extend to suggesting questions to the Court or the prosecution, but not putting them by himself.”' ' (Emphasis supplied) Thus, (i) by filing the revision, the defacto complainant is only brining to the notice of this court of his perception that an erroneous order is passed which according to him will lead to injustice and therefore, would not amount to taking over of the prosecution; (ii) second, there is no express embargo Section 372 of Cr.P.C., for the defacto complainant to invoke the Crl.R.C.No.654 of 2022 jurisdiction of this Court and therefore the principle of private lawyer taking over the prosecution cannot be extrapolated to the situation on hand. Accordingly, I answer the question that the Revision filed by the de-facto complainant is maintainable and is in order. 12. As submitted by the learned Counsel for the petitioner, the Hon'ble Supreme Court of India in Rama Chaudhary v. State of Bihar (cited supra) of which paragraph No.12 is quoted supra, clearly holds that the application for further investigation can be made even after the commencement of trial. Further, the Hon'ble Supreme Court of India in Hasanbhai Valibhai Qureshi v. State of Gujarat7. “13. In Ram Lal Narang v. State (Delhi Admn.) it was observed by this Court that further investigation is not altogether ruled out merely because cognisance has been taken by the court. When defective investigation comes to light during course of trial, it may be cured by further investigation, if circumstances so permitted. It would ordinarily be desirable and all the more so in this case, that the police should inform the court and seek formal permission to make further investigation when fresh facts come to light instead of being silent over the matter keeping in view only the need for an early trial since an effective trial for real or actual offences found during course of proper investigation is as much relevant, desirable and necessary as an expeditious disposal of the matter by the courts. In view of the aforesaid position in law, if there is necessity for further investigation, the same can certainly be done as prescribed by law. The mere fact that there may be further delay in concluding the trial should not stand in the way of further investigation if that would help the court in arriving at the truth and do real and substantial as well as effective justice. We make it clear that we have not expressed any final opinion on the merits of the case.“ (empahsis supplied) 13. Similarly, the Hon'ble Supreme Court of Indian in Ram Lal Narang and Ors. vs. State (Delhi Administration)8, held in paragraph „21. ………In our view, notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the 1898 Code, the right of the police to further investigate was not exhausted and the police could exercise such right as often as necessary when fresh information came to light. Where the police desired to make a further investigation, the police could express their regard and respect for the Court by seeking its formal permission to make further investigation.“ (emphasis supplied) Therefore, in view of the same, the application for further investigation is maintainable even after the commencement of trial. 14. As far as the judgment of the Hon'ble Supreme Court of India in Vinubhai Haribhai Malaviya Versus the State of Gujarat (cited supra), though in paragraph No.38, it has been mentioned that the power of Police to further investigate the offence continues till the stage of the trial commences, but, however, it may be seen that even in the said judgment, the views expressed in the above two judgments of the Hon'ble Supreme Court of India in Hasanbhai Valibhai Qureshi v. State of Gujarat (cited supra) and Ram Lal Narang and Ors. vs. State (Delhi Administration) (cited supra) were approved. Further, a learned Judge of this Court, already in Ravi vs. The Inspector of Police, Kothagiri Circle9 , has considered the said judgment and has held that since the question decided was relating to the power of the learned Magistrate, the question as to whether the further investigation can be carried after commencement of the trial or not not being a question considered in the said judgment, the same cannot be considered as an authoritative pronouncement of the Hon'ble Supreme Court in respect of the question on hand and held that the prosecution is entitled to seek for further investigation even after commencement of trial. It is useful to extract the paragraph No.32 of the judgment, which reads as “32. In view of the same, this Court holds that the investigating agency/Police invoking Section 173(8) Cr.P.C., at any stage of the criminal proceedings cannot be doubted, objected and faulted with.“ 15. Section 173(8) of Cr.P.C., does not place any fetter on the Police to conduct further investigation in the case after commencement of trial and whenever they come across any additional information it is just and necessary that the same be brought to the notice of the Court. It is important to note that the Hon'ble Supreme Court of India in Vinubhai Haribhai Malaviya Vs. the State of Gujarat (cited supra) itself has clearly held that the purpose of further investigation is that any person who has wrongly been prosecuted cannot suffer the same and any person, who was actually committed the offence, should not escape punishment. In that view of the matter, since bringing out the truth is the primordial purpose of investigation and the present application serves the said purpose, I am of the view that the application filed by the prosecution even after the commencement of the trial in this case is maintainable and I answered the question accordingly. (i) The order of the learned Judicial Magistrate No.I, Villupuram in CMP.No.951 of 2021 in C.C.No.220 of 2020 is set aside. (ii) The application filed in CMP.No.951 of 2021 in C.C.No.220 of 2020 on the file of the Judicial Magistrate No.I, Villupuram is allowed; (iii) It is made clear that the observations made in this Order are for the purpose of disposing the application for further investigation alone and shall not have any bearing on the merits of the case. Speaking / Non-Speaking order 3.The Public Prosecutor, High Court of Madras.
The Madras High Court recently reviewed and approved a request to change a lower court judge's decision. This decision had initially turned down a request for more investigation. The High Court said that even after a trial has begun, a request for more investigation can still be made. The court felt finding the truth was extremely important. It also stated that a specific legal rule (Section 173(8) of the Code of Criminal Procedure, or CrPC) does not limit the police from doing more investigation once a trial has started. Justice Bharatha Chakravarthy explained this further. He said that Section 173(8) of the CrPC does not stop the police from carrying out more investigation even after a trial has begun. If the police find new information, it is right and necessary to tell the court about it. He added that the most important goal of any investigation is to uncover the truth. Since this current request helps achieve that goal, he believed the request filed by the prosecution (the legal team representing the government) was valid, even though the trial had already started. The High Court referred to a decision by the Supreme Court in an earlier case called HasanbhaiValibhai Qureshi v. State of Gujarat. In that case, the Supreme Court said that if an investigation was done poorly and this becomes clear during a trial, it can be fixed with more investigation, if the situation allows. Given this legal view, if there's a need for more investigation, it should definitely be carried out as the law permits. The court added that even if more investigation causes the trial to take longer, this delay should not stop it. The main goal is to help the court find the truth and deliver fair and real justice. The Supreme Court has supported this idea in many of its past decisions. The court also pointed out that the reason for doing more investigation is to make sure innocent people who were wrongly charged don't suffer. At the same time, it ensures that anyone who truly committed a crime does not get away without punishment. The Supreme Court expressed this view in the case of Vinubhai Haribhai Malaviya Vs. the State of Gujarat. Therefore, it was important to allow more investigation to uncover the truth. **Background** The main point of this specific case was that the person charged with the crime (the accused) had made a fake promise. He told the victim (the de facto complainant) he could get them a job as an Assistant Engineer at TNEB. He then took money from the victim many times and in different places, essentially cheating them. In the initial investigation, security camera footage from the places where the money was exchanged was not collected. Also, the records of calls made on the mobile phones used for communication were missing. A specific legal certificate (a Section 65B certificate, required for digital evidence under the Indian Evidence Act) for some documents was also not provided. To get all this missing evidence into the case, the prosecution (the government's legal team) filed a request for more investigation. However, the trial court turned down this request. The trial court said that the trial had already started and that the request was filed by a government lawyer (the Additional Public Prosecutor) on his own, without proper instruction. Because of this rejection, the victim (the de facto complainant) filed a new request to have the trial court's decision reviewed. It was argued that the request for more investigation was filed because the police asked for it, not because the government lawyer acted on his own, as the trial court had claimed. The police involved in the case (the Respondent Police) also supported this argument. The person who filed the request for review (the victim) also argued that the trial court's second reason was wrong. That reason was that because the trial had already started, the request for more investigation should not be considered. On the other side, the person accused in the case disagreed with these arguments. He stated that only the prosecution (the government's legal team) had the right to file a request for more investigation. He pointed out that in this case, the request was filed by the victim. He also argued that the request was made after the trial had already begun. Therefore, he asked that the victim's request, which was also filed too late, should not be considered and should be rejected. **Revision Application Filed By Defacto Complainant** One of the main arguments against considering the request for review was that it had been filed by the victim. The accused challenged this, claiming that only the prosecution could file such a request. To support his argument, he referred to an earlier decision by the Madras High Court in the case of M.Viswanathan vs. State and Ors. In that case, the court had noted that a victim did not have the right to ask for more investigation. However, the court noted that in this current case, the prosecution had originally filed the request for more investigation, and a lower court judge had rejected it. Therefore, the High Court had the right to check if that rejection was correct. The victim was simply bringing this issue to the court's attention. Referring to a decision by the Supreme Court in the case of Rekha Murarka Vs. The State of West Bengal, the court noted that when the victim filed the request for review, they were simply telling the court that a mistaken decision had been made, which they believed would lead to unfairness. This action would not mean they were taking control of the case from the government's lawyers. The court also pointed out that there was no clear legal ban in Section 372 of the CrPC that stopped a victim from bringing such an issue to the court. For these reasons, the court decided that the request for review was valid and could be considered.
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By way of instant petition filed under S. 439 CrPC, prayer has been made on behalf the bail petitioner namely Ankit Ashok Kumar, who is behind the bars for grant of regular bail in case FIR No. 315, dated 20.12.2020, under Sections 20 & 29 of the Narcotic Drugs and Psychotropic Substances Act (in short “the Act”) registered at Police Station Bhuntar, District Kullu, Himachal 2. Respondent-State has filed status report and ASI Vij Ram, Police record. Record perused and returned. Station Bhuntar, District Kullu, Himachal Pradesh has also come Present with Close scrutiny of the record as well as status report made available to this Court reveals that on 19.12.2020, police party present at TCP Bajaura in connection with traffic checking, stopped Volvo Bus bearing registration No. HR38Z- 0003 for checking. Allegedly, police party after having associated two independent witnesses, i.e. driver and conductor of the bus namely Pawan Kumar and Suresh Kumar, started checking of the luggage of the passengers. Since, person sitting on seat No.3, got perplexed after having seen police and passed over one rucksack/Pithu bag to his co-passenger sitting on seat No.4, i.e. Mihi Ojha; and passenger sitting on seat No.4, tried to hide the same below his seat, police deemed it necessary to cause personal search of the passengers sitting on seat Nos. 3 & 4 as well as rucksack kept by them under their seats. On checking police allegedly recovered commercial quantity of contraband, i.e. 1.816 grams charas from the bag. Since, no plausible explanation came to be rendered on record qua the possession of aforesaid H commercial quantity of contraband from the passengers sitting on seat Nos. 3 & 4, police after having de-boarded them from bus and after completion of necessary codal formalities, lodged FIR, detailed hereinabove against both the accused namely Mihir Oza and Ankit i.e. present bail petitioner and since then, present bail petitioner is behind the bars and co-accused Mihir Ojha stands enlarged on bail. Allegedly, both the above-named persons disclosed to the police during investigation that some unknown persons had handed over rucksack/Pithu to them for further delivering the same to somebody at Delhi and they were told that in lieu of that, they would get Rs.40,000/-. Since, police was not satisfied with the aforesaid disclosure made by above-named persons, it deemed necessary to investigate the .P. matter with regard to financial transactions, if any, from the bank accounts of the persons named hereinabove. During investigation, police found that both the above-named persons sent Rs. 49,000/- each on 18.12.2020 to person namely Sonam Dorje, owner of Shanti Cafe situate at Kasol Manikaran. Apprehending that aforesaid transaction was made with regard to illegal trade of narcotics, police also interrogated Sonam Dorje, owner of the Shanti Cafe, who allegedly admitted that the aforesaid amount was received by him for sale/purchase of contraband allegedly recovered from the conscious possession of the persons, namely Mihir Ojha and Ankit, i.e. the present bail petitioner. Since investigation in the case is complete and nothing remains to be recovered from the present bail petitioner, he has approached this Court in the instant proceedings, for grant of regular bail ig h 4. It may be noticed that prior to filing of petition at hand, petitioner had earlier approached this Court by way of CrMP(M) No. 2469 of 2021, but the same was dismissed as withdrawn on 5.1.2022, reserving liberty to the H petitioner to file appropriate proceedings in appropriate court of law at an appropriator stage. 5. Mr. Sudhir Bhatnagar, learned Additional Advocate General while fairly admitting the factum with regard to filing of challan in the competent court of law, contends that though nothing remains to be recovered from the present bail petitioner, but keeping in view the gravity of the offences alleged to have been committed by him, he does not deserve any leniency. Mr. Bhatnagar further states that there is overwhelming evidence adduced on record by respondent-State suggestive of the fact that the bail petitioner transferred money in the account of person namely Sonam Dorje, who in turn provided them commercial quantity of Charas and as such, it cannot be said that they have been falsely implicated. While making this Court to peruse the record made available by investigating agency, Mr. Bhatnagar, also states that the commercial quantity of contraband was recovered from the bag of the present bail petitioner and co-accused Mihir Ojha in the presence of independent witnesses. He states that though independent witnesses were declared hostile, but if cross-examination conducted upon these witnesses is perused in its entirety, it clearly establishes the case of the prosecution and as such, prayer made on behalf of the petitioner deserves outright rejection. Having heard learned counsel representing the parties and perused the material available on record, this Court finds that the case of the prosecution is that on 19.12.2020, police officials present at TCP Bajaura stopped Volvo Bus bearing No. HR-38Z-0003 for checking and allegedly recovered one bag kept under seats Nos. 3 and 4 occupied by present bail petitioner and co-accused Mihir Ojha in the presence of two independent witnesses namely Suresh Kumar and Pawan Kumar, i.e. driver and conductor H of the bus, but if the statements made by these witnesses in the trial court are perused juxtaposing each other, it creates serious doubt with regard to recovery of contraband that too, from the bag/luggage of present bail petitioner and co-accused Mihir Ojha. As per police, person sitting on seat No. 3, got perplexed after having seen the police and handed /passed over bag to his co-passenger sitting on seat No.4 i.e. Mihir Ojha, who in turn tried to hide the same below his seat, but such claim of the police is otherwise contrary to the fard/recovery memo, which reveals that the police officials pulled out the bag from below the seat of passengers sitting on seat Nos. 3 and 4 in the presence of independent witnesses. Both the above named independent witnesses have categorically stated that the bus was stopped for checking by Narco officials and bag was recovered from the rack over the seats No.3 & 4. PW-10 Suresh Kumar, stated that the officials searched the bus along with Pawan Kumar, i.e. Conductor of the Bus and recovered one bag kept on the rack above seat Nos. 3 & 4. He further deposed that police inquired the passengers as well as conductor about the bag, but they disowned the same and thereafter officials took out black colour bag inside TCP Bajaura and on opening the same, black colour substance was found in the polythene packet. He deposed that police officials came after one and half hour on the spot and thereafter, papers were prepared by them. Police also procured our signatures on the papers and cloth. Since the passengers sitting in the bus were pressurizing them to take the bus, as such, they were allowed to take the bus. Though this witness was declared hostile, but cross- examination conducted upon this witnesses nowhere suggests that the prosecution was able to extract anything contrary to what this witness stated in his cross-examination. Though learned Public Prosecutor made a serious H effort to get it extracted from this witness that bus was got stopped for checking by police officials, but repeatedly he voluntarily stated that the bus was stopped by Narco officials and after one and half hour police came on the spot. 8. PW-11 Pawan Kumar, conductor of bus, deposed that when bus reached at TCP Bajaura, officials signalled the bus to stop and told that they are Narco officials. This witness stated that they parked the bus on the side of the road and he and driver of bus got down from the bus; and 3-4 officials entered the bus. They checked the bus and found one bag in the bus. They inquired from the passengers about the bag and passengers disowned the bag. This witness further stated that thereafter officials of Narco asked him about the bag, then he again asked the passengers about the bag and they again disowned the same. He deposed that since the bag was found above seats Nos. 3 and 4, the officials suspected the passengers sitting on seat Nos. 3 and 4 and thereafter they took both the passengers alongwith bag to the room of TCP Bajaura. It is deposed by this witness that the officials opened the bag and found black coloured substance in a polythene bag and thereafter, the officials telephonically called the police officials, who came on the spot after one and half hour. Police officials interrogated the accused and thereafter, this witness was asked about their luggage. He took out the luggage of both the passengers, sitting on seat Nos. 3 and 4 and thereafter, police checked the same. He deposed that on personal search of both the passengers, police recovered their PAN cards, DL and Adhaar cards etc. ig h 9. If the statements made by the aforesaid independent witnesses are read in conjunction, it cannot be said that there are any inconsistencies and contradictions, rather both these witnesses in unison have stated that the bus H was stopped by Narco officials and on checking contraband was recovered from the bag kept on rack above the passengers sitting on seats Nos. 3 and 4, not from below the seats Nos. 3 and 4. Most importantly, PW-11 Pawan categorically stated that on personal search of both the passengers, police recovered their DL, Pan Cards, Adhaar Cards etc. 10. Interestingly, the case of the prosecution is that DL, PAN Cards and Adhaar Cards of both the accused were recovered from the bag containing the contraband, which fact is totally contradictory to the statements made by independent witnesses. Record reveals that the police officials after having effected personal search of the accused prepared Fard/Jama Talashi and allegedly recovered wallet, watch, currency notes, one ATM card and One Mobile Phone. Once, the bail petitioner was found carrying the wallet, it is not understood, rather is highly unbelievable that a person would keep his driving licence and Adhaar card in a bag containing the contraband. Had one of the accused kept his DL /Adhaar card in bag containing contraband, this court may have accepted that version, but it is highly unbelievable that both the accused had kept their Adhaar Card and DL card in the bag, allegedly recovered by the police, containing commercial quantity of the contraband. Leaving everything aside, independent witnesses namely Pawan Kumar PW-11 has categorically stated that DL, PAN Cards and Adhaar Cards were recovered on personal search of the accused persons. Similarly, PW-10 has categorically stated in his examination-in-chief that the documents referred to hereinabove, were recovered by the Police during personal search of the accused persons. As per both the above said independent witnesses, bus for checking was stopped at the first instance by Narco officials, who in H turn, after one and half hour of seizure of the contraband, telephonically informed the police. It is not understood that why such facts are totally missing in the status report as well as record made available to this court, rather, specific case of the prosecution as has been canvassed before this Court is that the Police party at TCP Bajaura, stopped the vehicle for checking and allegedly recovered the commercial quantity of contraband, from the bag kept by the passengers sitting on Seats Nos. 3 and 4 below their seats. Both the independent witnesses have categorically stated that the bag was recovered from the rack above seats Nos. 3 and 4 and none of the passengers sitting in the bus owned the bag and as such, same was taken to TCP Bajaura and after some time, the police made the passengers sitting on seat Nos. 3 and 4 alight from the bus. No doubt, both these witnesses have admitted their signatures on recovery memo, but they have also stated that their signatures were obtained on blank papers and since the passengers sitting in the bus were pressurizing them to take the bus, as such, they were allowed to take the bus. These witnesses have also stated that since some of the passengers had to take flight from Chandigarh and were to appear in examination, police permitted them to take the bus and as such, they left the place. There is no cross-examination qua aforesaid aspect of the matter conducted by the prosecution upon these two witnesses, who nowhere supported the case of the prosecution. Learned Additional Advocate General, while inviting attention of this court to the visitors’ register of Shanti Cafe, contended that present bail petitioner alongwith co-accused Mihir Ojha not only visited Shanti Cafe with a purpose to purchase contraband from Sonam Dorje, owner of Shanti Coffee House, but in that regard, they also transferred money on-line. However, H having carefully perused the visitors’ register, this court finds that all the entries except at Sr. No.71 have been made by one person, having specific handwriting, but entry made at Sr. No.71 is altogether different from the entries made at other serial numbers. Aforesaid fact gains significance because of statement given by PW-9, Pawan, Cook working in the Shanti Coffee House. This witness deposed that on 17.12.2020, Ankit Kumar son of Ashok resident of Santosh Naggar, i.e. present bail petitioner, alongwith co- accused Mihir Ojha visited the Cafe and during evening at 7.00 p.m made entry in the register in this regard and they departed from the Cafe on next day at 9/10 A.M. In his cross-examination, this witness admitted that there is cutting in the column of date and time of arrival (Ext. PW- 9/A) at Sr. Nos. 69, 71 & 72. He also admitted that in the column of date and time of arrival in Ext. PW-9/A, date “15” has been written over figure “19”, similarly, “18” has been converted into “16” at Sr. No. 70 and date “18” has been written by cutting date “28”. Most importantly, this witness in his cross-examination self stated that three police personnel had come to Cafe and asked him to make entry at Sr. No. 71 in the register and he has done so at their instance. No doubt, financial transactions placed on record by the prosecution reveals that the present bail petitioner and co-accused Ashok Ankit, transferred some amount in the name of Sonam Dorje, but that may not be sufficient to conclude complicity, if any, of the bail petitioner in the case, especially, when they specifically set up a case that they do tour, travelling and event management business. ig h 14. Though the case at hand is to be decided by learned trial court in the totality of the facts and evidence led on record by prosecution, but keeping in view aforesaid glaring aspects of the matter, especially with regard to mode H and manner of recovery coupled with the fact that both the independent witnesses have nowhere supported the case of the prosecution that the bag containing contraband was recovered from below the seats Nos. 3 and 4, this Court sees no reason to let bail petitioner incarcerate in jail for an indefinite period during trial. 15. Leaving everything aside, as has been taken note herein above, it is highly unbelievable that the persons carrying/transporting commercial quantity of contraband, would keep documents relating to his/her identity in the bag containing contraband, which itself creates suspicion with regard to or pocket not in bag. correctness of the prosecution story, as normally, Adhaar card is kept in purse Since, in the case at hand, commercial quantity of contraband came to be recovered, rigors of Section 37 are attracted, but bare perusal of Section 37 of the Act, nowhere suggests that there is complete bar for this Court to grant bail in cases involving commercial quantity, rather, in such like cases, court after having afforded an opportunity of being heard to the public prosecutor can proceed to grant bail in cases involving commercial quantity, if it is satisfied that the accused has been falsely implicated and there is no likelihood of his indulging in such activities again during trial. In the case at hand, for the facts/reasons noted/stated hereinabove, this Court has a reason to presume and believe that recovery is doubtful and perusal of status report clearly reveals that at present no other case save and except the case at hand stands registered against the bail petitioner under Narcotic Drugs & 17. Hon'ble Apex Court as well as this Court in catena of cases have H repeatedly held that till the time, guilt of a person is proved in accordance with law, he/she is deemed to be innocent and as such, no fruitful purpose would be served by keeping the bail petitioner behind the bars for an indefinite period during trial, especially when nothing remains to be recovered from him. Apprehension expressed by learned Additional Advocate General that in the event of bail petitioner being enlarged on bail, he may flee from justice, can be best met by putting him to the stringent conditions. 18. Hon'ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr decided on 6.2.2018 has held that freedom of an individual can not be curtailed for indefinite period, especially when his/her guilt is yet to be proved. It has been further held by the Hon'ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty. Hon’ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49 has held that gravity alone cannot be a decisive ground to deny bail, rather competing factors are required to be balanced by the court while exercising its discretion. It has been repeatedly held by the Hon’ble Apex Court that object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218, Hon'ble Apex Court has held that the object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is H whether it is probable that the party will appear to take his trial. Otherwise also, normal rule is of bail and not jail. Apart from above, Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment, which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime. 21. The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another (2010) 14 SCC 496, has laid down various principles to be kept in mind, while deciding petition for bail viz. prima facie case, nature and gravity of accusation, punishment involved, apprehension of repetition of offence and witnesses being influenced. In view of above, bail petitioner has carved out a case for himself, as such, present petition is allowed. of Bail petitioner is ordered to be enlarged on bail, subject to furnishing bail bonds in the sum of Rs.2.00 Lakh with one local surety in the like amount, to the satisfaction of the learned trial Court, besides the following conditions: He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application; C He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner ig h (c) He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer; and H (d) He shall not leave the territory of India without the prior permission of the Court. 23. It is clarified that if the petitioner misuses the liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail. 24. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this petition alone. The petition stands accordingly disposed of.
When deciding whether to let an accused person out on bail under the Narcotic Drugs and Psychotropic Substances Act of 1985 (laws against illegal drugs), the Himachal Pradesh High Court found it very hard to believe that people carrying a large amount of illegal drugs would keep their identity documents in the same bag. Justice Sandeep Sharma felt this made the police's story seem suspicious. He said that people usually keep their ID cards in a purse or pocket, not in a bag with illegal drugs. The judge observed, "Since the person asking for bail already had a wallet, it is highly unbelievable that someone would keep their driver's license and Adhaar card (a common Indian ID) in a bag holding illegal drugs. If only one of the accused had kept their ID in a drug pack, the court might have accepted it. But it is very hard to believe that both accused kept their Adhaar and driver's license cards in the bag that the police claimed contained a large amount of illegal drugs." The accused had asked the court for bail under specific sections of the law. The police claimed they stopped a bus, found bags with the accused, and these bags contained illegal drugs. The accused, however, said an unknown person had given them the bags to deliver to someone in Delhi. They also stated that their driver's licenses, PAN cards, and Adhaar cards were found in the same bag as the illegal drugs. A government lawyer, Sudhir Bhatnagar, agreed that the police had finished their investigation and filed the official report in court. However, he argued that even though the police didn't need to find anything else from the accused, the accused should still not be treated leniently. The bus driver and conductor gave statements as witnesses, but their stories did not match. The Court said this caused serious doubt about whether the illegal drugs were truly found with the accused. It also found differences between the police's story and the official report of what was found. The Court pointed out that while both witnesses admitted their signatures were on the official report, they claimed they had signed blank papers. They stated that passengers on the bus were pressuring them to leave, so they were allowed to take the bus. The police also showed records of money transfers from the accused to a cafe owner in a different state. But the Court said this wasn't enough to prove the accused was part of a conspiracy, especially since the accused clearly stated they ran a business involving tours, travel, and event planning. The Court recognized that being accused of carrying a large amount of illegal drugs usually makes it very hard to get bail because of a specific law, Section 37. However, the Court explained that just by reading Section 37, it was clear there is not a complete ban on giving bail in cases involving large drug amounts. Instead, in such cases, the court can grant bail after hearing from the government lawyer, if it is convinced that the accused was wrongly accused and is unlikely to commit similar crimes again during the trial. The Court saw no reason to doubt that the drugs were found as claimed. Also, the police's update report showed that the accused currently had no other cases under the drug laws. The Court referred to previous court decisions which held that a person is considered innocent until proven guilty. It said there was no good reason to keep the accused in jail for a very long time during the trial, especially since the police didn't need to find any more evidence from him. The Court mentioned a case, Dataram Singh vs. State of Uttar Pradesh, where it was decided that a person's freedom should not be limited indefinitely, especially when their guilt has not yet been proven. In another case, Sanjay Chandra v. Central Bureau of Investigation (2012), the Supreme Court said that how serious a crime is cannot be the only reason to deny bail. Instead, the court must carefully weigh different factors when making its decision. The top court has often said that the main goal of bail is to ensure the accused shows up for trial by setting a fair bail amount. Bail is not meant to be a punishment or to prevent future crimes. The Court concluded that, generally, the rule is to grant bail, not to keep someone in jail. The Supreme Court, in the case of Prasanta Kumar Sarkar v. Ashis Chatterjee, set out several key rules for giving bail. These include looking at whether there's enough initial evidence, how serious the accusation is, the possible punishment, if there's a risk of the crime happening again, and if witnesses might be influenced. This case was officially called Ankit Ashok Nisar and others against the State of Himachal Pradesh.
By way of instant petition filed under S. 439 CrPC, prayer has been made on behalf the bail petitioner namely Ankit Ashok Kumar, who is behind the bars for grant of regular bail in case FIR No. 315, dated 20.12.2020, under Sections 20 & 29 of the Narcotic Drugs and Psychotropic Substances Act (in short “the Act”) registered at Police Station Bhuntar, District Kullu, Himachal 2. Respondent-State has filed status report and ASI Vij Ram, Police record. Record perused and returned. Station Bhuntar, District Kullu, Himachal Pradesh has also come Present with Close scrutiny of the record as well as status report made available to this Court reveals that on 19.12.2020, police party present at TCP Bajaura in connection with traffic checking, stopped Volvo Bus bearing registration No. HR38Z- 0003 for checking. Allegedly, police party after having associated two independent witnesses, i.e. driver and conductor of the bus namely Pawan Kumar and Suresh Kumar, started checking of the luggage of the passengers. Since, person sitting on seat No.3, got perplexed after having seen police and passed over one rucksack/Pithu bag to his co-passenger sitting on seat No.4, i.e. Mihi Ojha; and passenger sitting on seat No.4, tried to hide the same below his seat, police deemed it necessary to cause personal search of the passengers sitting on seat Nos. 3 & 4 as well as rucksack kept by them under their seats. On checking police allegedly recovered commercial quantity of contraband, i.e. 1.816 grams charas from the bag. Since, no plausible explanation came to be rendered on record qua the possession of aforesaid H commercial quantity of contraband from the passengers sitting on seat Nos. 3 & 4, police after having de-boarded them from bus and after completion of necessary codal formalities, lodged FIR, detailed hereinabove against both the accused namely Mihir Oza and Ankit i.e. present bail petitioner and since then, present bail petitioner is behind the bars and co-accused Mihir Ojha stands enlarged on bail. Allegedly, both the above-named persons disclosed to the police during investigation that some unknown persons had handed over rucksack/Pithu to them for further delivering the same to somebody at Delhi and they were told that in lieu of that, they would get Rs.40,000/-. Since, police was not satisfied with the aforesaid disclosure made by above-named persons, it deemed necessary to investigate the .P. matter with regard to financial transactions, if any, from the bank accounts of the persons named hereinabove. During investigation, police found that both the above-named persons sent Rs. 49,000/- each on 18.12.2020 to person namely Sonam Dorje, owner of Shanti Cafe situate at Kasol Manikaran. Apprehending that aforesaid transaction was made with regard to illegal trade of narcotics, police also interrogated Sonam Dorje, owner of the Shanti Cafe, who allegedly admitted that the aforesaid amount was received by him for sale/purchase of contraband allegedly recovered from the conscious possession of the persons, namely Mihir Ojha and Ankit, i.e. the present bail petitioner. Since investigation in the case is complete and nothing remains to be recovered from the present bail petitioner, he has approached this Court in the instant proceedings, for grant of regular bail ig h 4. It may be noticed that prior to filing of petition at hand, petitioner had earlier approached this Court by way of CrMP(M) No. 2469 of 2021, but the same was dismissed as withdrawn on 5.1.2022, reserving liberty to the H petitioner to file appropriate proceedings in appropriate court of law at an appropriator stage. 5. Mr. Sudhir Bhatnagar, learned Additional Advocate General while fairly admitting the factum with regard to filing of challan in the competent court of law, contends that though nothing remains to be recovered from the present bail petitioner, but keeping in view the gravity of the offences alleged to have been committed by him, he does not deserve any leniency. Mr. Bhatnagar further states that there is overwhelming evidence adduced on record by respondent-State suggestive of the fact that the bail petitioner transferred money in the account of person namely Sonam Dorje, who in turn provided them commercial quantity of Charas and as such, it cannot be said that they have been falsely implicated. While making this Court to peruse the record made available by investigating agency, Mr. Bhatnagar, also states that the commercial quantity of contraband was recovered from the bag of the present bail petitioner and co-accused Mihir Ojha in the presence of independent witnesses. He states that though independent witnesses were declared hostile, but if cross-examination conducted upon these witnesses is perused in its entirety, it clearly establishes the case of the prosecution and as such, prayer made on behalf of the petitioner deserves outright rejection. Having heard learned counsel representing the parties and perused the material available on record, this Court finds that the case of the prosecution is that on 19.12.2020, police officials present at TCP Bajaura stopped Volvo Bus bearing No. HR-38Z-0003 for checking and allegedly recovered one bag kept under seats Nos. 3 and 4 occupied by present bail petitioner and co-accused Mihir Ojha in the presence of two independent witnesses namely Suresh Kumar and Pawan Kumar, i.e. driver and conductor H of the bus, but if the statements made by these witnesses in the trial court are perused juxtaposing each other, it creates serious doubt with regard to recovery of contraband that too, from the bag/luggage of present bail petitioner and co-accused Mihir Ojha. As per police, person sitting on seat No. 3, got perplexed after having seen the police and handed /passed over bag to his co-passenger sitting on seat No.4 i.e. Mihir Ojha, who in turn tried to hide the same below his seat, but such claim of the police is otherwise contrary to the fard/recovery memo, which reveals that the police officials pulled out the bag from below the seat of passengers sitting on seat Nos. 3 and 4 in the presence of independent witnesses. Both the above named independent witnesses have categorically stated that the bus was stopped for checking by Narco officials and bag was recovered from the rack over the seats No.3 & 4. PW-10 Suresh Kumar, stated that the officials searched the bus along with Pawan Kumar, i.e. Conductor of the Bus and recovered one bag kept on the rack above seat Nos. 3 & 4. He further deposed that police inquired the passengers as well as conductor about the bag, but they disowned the same and thereafter officials took out black colour bag inside TCP Bajaura and on opening the same, black colour substance was found in the polythene packet. He deposed that police officials came after one and half hour on the spot and thereafter, papers were prepared by them. Police also procured our signatures on the papers and cloth. Since the passengers sitting in the bus were pressurizing them to take the bus, as such, they were allowed to take the bus. Though this witness was declared hostile, but cross- examination conducted upon this witnesses nowhere suggests that the prosecution was able to extract anything contrary to what this witness stated in his cross-examination. Though learned Public Prosecutor made a serious H effort to get it extracted from this witness that bus was got stopped for checking by police officials, but repeatedly he voluntarily stated that the bus was stopped by Narco officials and after one and half hour police came on the spot. 8. PW-11 Pawan Kumar, conductor of bus, deposed that when bus reached at TCP Bajaura, officials signalled the bus to stop and told that they are Narco officials. This witness stated that they parked the bus on the side of the road and he and driver of bus got down from the bus; and 3-4 officials entered the bus. They checked the bus and found one bag in the bus. They inquired from the passengers about the bag and passengers disowned the bag. This witness further stated that thereafter officials of Narco asked him about the bag, then he again asked the passengers about the bag and they again disowned the same. He deposed that since the bag was found above seats Nos. 3 and 4, the officials suspected the passengers sitting on seat Nos. 3 and 4 and thereafter they took both the passengers alongwith bag to the room of TCP Bajaura. It is deposed by this witness that the officials opened the bag and found black coloured substance in a polythene bag and thereafter, the officials telephonically called the police officials, who came on the spot after one and half hour. Police officials interrogated the accused and thereafter, this witness was asked about their luggage. He took out the luggage of both the passengers, sitting on seat Nos. 3 and 4 and thereafter, police checked the same. He deposed that on personal search of both the passengers, police recovered their PAN cards, DL and Adhaar cards etc. ig h 9. If the statements made by the aforesaid independent witnesses are read in conjunction, it cannot be said that there are any inconsistencies and contradictions, rather both these witnesses in unison have stated that the bus H was stopped by Narco officials and on checking contraband was recovered from the bag kept on rack above the passengers sitting on seats Nos. 3 and 4, not from below the seats Nos. 3 and 4. Most importantly, PW-11 Pawan categorically stated that on personal search of both the passengers, police recovered their DL, Pan Cards, Adhaar Cards etc. 10. Interestingly, the case of the prosecution is that DL, PAN Cards and Adhaar Cards of both the accused were recovered from the bag containing the contraband, which fact is totally contradictory to the statements made by independent witnesses. Record reveals that the police officials after having effected personal search of the accused prepared Fard/Jama Talashi and allegedly recovered wallet, watch, currency notes, one ATM card and One Mobile Phone. Once, the bail petitioner was found carrying the wallet, it is not understood, rather is highly unbelievable that a person would keep his driving licence and Adhaar card in a bag containing the contraband. Had one of the accused kept his DL /Adhaar card in bag containing contraband, this court may have accepted that version, but it is highly unbelievable that both the accused had kept their Adhaar Card and DL card in the bag, allegedly recovered by the police, containing commercial quantity of the contraband. Leaving everything aside, independent witnesses namely Pawan Kumar PW-11 has categorically stated that DL, PAN Cards and Adhaar Cards were recovered on personal search of the accused persons. Similarly, PW-10 has categorically stated in his examination-in-chief that the documents referred to hereinabove, were recovered by the Police during personal search of the accused persons. As per both the above said independent witnesses, bus for checking was stopped at the first instance by Narco officials, who in H turn, after one and half hour of seizure of the contraband, telephonically informed the police. It is not understood that why such facts are totally missing in the status report as well as record made available to this court, rather, specific case of the prosecution as has been canvassed before this Court is that the Police party at TCP Bajaura, stopped the vehicle for checking and allegedly recovered the commercial quantity of contraband, from the bag kept by the passengers sitting on Seats Nos. 3 and 4 below their seats. Both the independent witnesses have categorically stated that the bag was recovered from the rack above seats Nos. 3 and 4 and none of the passengers sitting in the bus owned the bag and as such, same was taken to TCP Bajaura and after some time, the police made the passengers sitting on seat Nos. 3 and 4 alight from the bus. No doubt, both these witnesses have admitted their signatures on recovery memo, but they have also stated that their signatures were obtained on blank papers and since the passengers sitting in the bus were pressurizing them to take the bus, as such, they were allowed to take the bus. These witnesses have also stated that since some of the passengers had to take flight from Chandigarh and were to appear in examination, police permitted them to take the bus and as such, they left the place. There is no cross-examination qua aforesaid aspect of the matter conducted by the prosecution upon these two witnesses, who nowhere supported the case of the prosecution. Learned Additional Advocate General, while inviting attention of this court to the visitors’ register of Shanti Cafe, contended that present bail petitioner alongwith co-accused Mihir Ojha not only visited Shanti Cafe with a purpose to purchase contraband from Sonam Dorje, owner of Shanti Coffee House, but in that regard, they also transferred money on-line. However, H having carefully perused the visitors’ register, this court finds that all the entries except at Sr. No.71 have been made by one person, having specific handwriting, but entry made at Sr. No.71 is altogether different from the entries made at other serial numbers. Aforesaid fact gains significance because of statement given by PW-9, Pawan, Cook working in the Shanti Coffee House. This witness deposed that on 17.12.2020, Ankit Kumar son of Ashok resident of Santosh Naggar, i.e. present bail petitioner, alongwith co- accused Mihir Ojha visited the Cafe and during evening at 7.00 p.m made entry in the register in this regard and they departed from the Cafe on next day at 9/10 A.M. In his cross-examination, this witness admitted that there is cutting in the column of date and time of arrival (Ext. PW- 9/A) at Sr. Nos. 69, 71 & 72. He also admitted that in the column of date and time of arrival in Ext. PW-9/A, date “15” has been written over figure “19”, similarly, “18” has been converted into “16” at Sr. No. 70 and date “18” has been written by cutting date “28”. Most importantly, this witness in his cross-examination self stated that three police personnel had come to Cafe and asked him to make entry at Sr. No. 71 in the register and he has done so at their instance. No doubt, financial transactions placed on record by the prosecution reveals that the present bail petitioner and co-accused Ashok Ankit, transferred some amount in the name of Sonam Dorje, but that may not be sufficient to conclude complicity, if any, of the bail petitioner in the case, especially, when they specifically set up a case that they do tour, travelling and event management business. ig h 14. Though the case at hand is to be decided by learned trial court in the totality of the facts and evidence led on record by prosecution, but keeping in view aforesaid glaring aspects of the matter, especially with regard to mode H and manner of recovery coupled with the fact that both the independent witnesses have nowhere supported the case of the prosecution that the bag containing contraband was recovered from below the seats Nos. 3 and 4, this Court sees no reason to let bail petitioner incarcerate in jail for an indefinite period during trial. 15. Leaving everything aside, as has been taken note herein above, it is highly unbelievable that the persons carrying/transporting commercial quantity of contraband, would keep documents relating to his/her identity in the bag containing contraband, which itself creates suspicion with regard to or pocket not in bag. correctness of the prosecution story, as normally, Adhaar card is kept in purse Since, in the case at hand, commercial quantity of contraband came to be recovered, rigors of Section 37 are attracted, but bare perusal of Section 37 of the Act, nowhere suggests that there is complete bar for this Court to grant bail in cases involving commercial quantity, rather, in such like cases, court after having afforded an opportunity of being heard to the public prosecutor can proceed to grant bail in cases involving commercial quantity, if it is satisfied that the accused has been falsely implicated and there is no likelihood of his indulging in such activities again during trial. In the case at hand, for the facts/reasons noted/stated hereinabove, this Court has a reason to presume and believe that recovery is doubtful and perusal of status report clearly reveals that at present no other case save and except the case at hand stands registered against the bail petitioner under Narcotic Drugs & 17. Hon'ble Apex Court as well as this Court in catena of cases have H repeatedly held that till the time, guilt of a person is proved in accordance with law, he/she is deemed to be innocent and as such, no fruitful purpose would be served by keeping the bail petitioner behind the bars for an indefinite period during trial, especially when nothing remains to be recovered from him. Apprehension expressed by learned Additional Advocate General that in the event of bail petitioner being enlarged on bail, he may flee from justice, can be best met by putting him to the stringent conditions. 18. Hon'ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr decided on 6.2.2018 has held that freedom of an individual can not be curtailed for indefinite period, especially when his/her guilt is yet to be proved. It has been further held by the Hon'ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty. Hon’ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49 has held that gravity alone cannot be a decisive ground to deny bail, rather competing factors are required to be balanced by the court while exercising its discretion. It has been repeatedly held by the Hon’ble Apex Court that object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218, Hon'ble Apex Court has held that the object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is H whether it is probable that the party will appear to take his trial. Otherwise also, normal rule is of bail and not jail. Apart from above, Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment, which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime. 21. The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another (2010) 14 SCC 496, has laid down various principles to be kept in mind, while deciding petition for bail viz. prima facie case, nature and gravity of accusation, punishment involved, apprehension of repetition of offence and witnesses being influenced. In view of above, bail petitioner has carved out a case for himself, as such, present petition is allowed. of Bail petitioner is ordered to be enlarged on bail, subject to furnishing bail bonds in the sum of Rs.2.00 Lakh with one local surety in the like amount, to the satisfaction of the learned trial Court, besides the following conditions: He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application; C He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner ig h (c) He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer; and H (d) He shall not leave the territory of India without the prior permission of the Court. 23. It is clarified that if the petitioner misuses the liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail. 24. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this petition alone. The petition stands accordingly disposed of.
When deciding whether to let an accused person out on bail under the Narcotic Drugs and Psychotropic Substances Act of 1985 (laws against illegal drugs), the Himachal Pradesh High Court found it very hard to believe that people carrying a large amount of illegal drugs would keep their identity documents in the same bag. Justice Sandeep Sharma felt this made the police's story seem suspicious. He said that people usually keep their ID cards in a purse or pocket, not in a bag with illegal drugs. The judge observed, "Since the person asking for bail already had a wallet, it is highly unbelievable that someone would keep their driver's license and Adhaar card (a common Indian ID) in a bag holding illegal drugs. If only one of the accused had kept their ID in a drug pack, the court might have accepted it. But it is very hard to believe that both accused kept their Adhaar and driver's license cards in the bag that the police claimed contained a large amount of illegal drugs." The accused had asked the court for bail under specific sections of the law. The police claimed they stopped a bus, found bags with the accused, and these bags contained illegal drugs. The accused, however, said an unknown person had given them the bags to deliver to someone in Delhi. They also stated that their driver's licenses, PAN cards, and Adhaar cards were found in the same bag as the illegal drugs. A government lawyer, Sudhir Bhatnagar, agreed that the police had finished their investigation and filed the official report in court. However, he argued that even though the police didn't need to find anything else from the accused, the accused should still not be treated leniently. The bus driver and conductor gave statements as witnesses, but their stories did not match. The Court said this caused serious doubt about whether the illegal drugs were truly found with the accused. It also found differences between the police's story and the official report of what was found. The Court pointed out that while both witnesses admitted their signatures were on the official report, they claimed they had signed blank papers. They stated that passengers on the bus were pressuring them to leave, so they were allowed to take the bus. The police also showed records of money transfers from the accused to a cafe owner in a different state. But the Court said this wasn't enough to prove the accused was part of a conspiracy, especially since the accused clearly stated they ran a business involving tours, travel, and event planning. The Court recognized that being accused of carrying a large amount of illegal drugs usually makes it very hard to get bail because of a specific law, Section 37. However, the Court explained that just by reading Section 37, it was clear there is not a complete ban on giving bail in cases involving large drug amounts. Instead, in such cases, the court can grant bail after hearing from the government lawyer, if it is convinced that the accused was wrongly accused and is unlikely to commit similar crimes again during the trial. The Court saw no reason to doubt that the drugs were found as claimed. Also, the police's update report showed that the accused currently had no other cases under the drug laws. The Court referred to previous court decisions which held that a person is considered innocent until proven guilty. It said there was no good reason to keep the accused in jail for a very long time during the trial, especially since the police didn't need to find any more evidence from him. The Court mentioned a case, Dataram Singh vs. State of Uttar Pradesh, where it was decided that a person's freedom should not be limited indefinitely, especially when their guilt has not yet been proven. In another case, Sanjay Chandra v. Central Bureau of Investigation (2012), the Supreme Court said that how serious a crime is cannot be the only reason to deny bail. Instead, the court must carefully weigh different factors when making its decision. The top court has often said that the main goal of bail is to ensure the accused shows up for trial by setting a fair bail amount. Bail is not meant to be a punishment or to prevent future crimes. The Court concluded that, generally, the rule is to grant bail, not to keep someone in jail. The Supreme Court, in the case of Prasanta Kumar Sarkar v. Ashis Chatterjee, set out several key rules for giving bail. These include looking at whether there's enough initial evidence, how serious the accusation is, the possible punishment, if there's a risk of the crime happening again, and if witnesses might be influenced. This case was officially called Ankit Ashok Nisar and others against the State of Himachal Pradesh.
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1. Petitioner is the husband of the alleged detenue. He seeks issuance of a writ of habeas corpus to cause production of the alleged detenue, on the premise that she is under illegal detention of her father/fifth respondent. The petitioner would aver that he married the alleged detenue, pursuant to a deep love affair, on 26.4.2022. They belong to different religions and due to the possible objections from their families, their marriage was got registered under the Special Marriage Act. However, from 12.5.2022 onwards, the detenue is not contacting the petitioner and she has been illegally confined by her father/the fifth respondent. Ext.P2 complaint preferred by the petitioner before the jurisdictional police evoked no response and, hence, the writ petition is filed. 2. As per order dated 19.5.2022, we directed the third respondent/S.H.O to get a statement of the alleged detenue by a Woman Civil Police Officer, without the presence of the parents or any other family members of the alleged detenue. Such statement is produced before us, wherein the alleged detenue would state that the marriage before the Sub Registrar, Kuttippuram was registered without the knowledge of their parents; that the detenue thought of accompanying the petitioner after one month, since her mother was alone in their house; that both the families, who came to know about the marriage, are not willing to accept them; that the parents of the petitioner would never permit them to live together; that the detenue is seriously apprehensive of her safety at the house of the petitioner and that she is not under any illegal detention of her parents. The alleged detenue would state that she was not subjected to any torture, whatsoever. Even when the alleged detenue would express that she is desirous of living with the petitioner, she fears that she would be ill-treated by the parents of the petitioner. 3. We see that the alleged detenue is ambivalent in her stand and she prevaricates as between her desire to be with the petitioner on the one hand, and her serious apprehension and fear of being ill-treated by the parents of the petitioner, on the other hand. 4. Having regard to our limited jurisdiction, where issuance of writ of habeas corpus is sought for, we are not in a position to pass any order enabling the alleged detenue to live along with the petitioner. When the detenue is categoric in her statement that she is not under any illegal detention of her parents, we find no ground to issue a writ of habeas corpus. We, therefore, dismiss this writ petition.
The Kerala High Court recently rejected a legal petition from a husband who asked for his wife to be brought before the court. This request, known as a "habeas corpus petition," was dismissed because the wife expressed significant concerns about her safety at her husband's residence. The couple had an interfaith marriage. A panel of two judges, Justice K. Vinod Chandran and Justice C. Jayachandran, heard the case. The husband had argued that his wife was being held unlawfully by her father. However, the wife clearly stated she had not been subjected to any harm. Although she expressed a desire to live with her husband, she also feared potential mistreatment from his parents. The Court found that the wife was unsure about her decision, torn between her wish to be with her husband and her serious fears of ill-treatment by his parents. According to the husband, he and his wife were from different religions, and they officially registered their marriage under the Special Marriage Act without informing their parents. However, he claimed that less than one month into the marriage, his wife stopped communicating with him. Suspecting that her father was holding her against her will, he filed a complaint with the local police, but nothing came of it. Because of this, he then brought this formal legal request to the High Court. When the matter first came up for review, the Court had directed the Station House Officer, who is the police chief, to obtain a statement from the wife. This statement was to be taken by a female police officer, ensuring her parents or any other family members were not present. In her statement, the wife explained that she had planned to live with her husband at his home after one month of marriage, as her mother would be alone at her place. However, news of their marriage spread quickly, and both families were unwilling to accept the relationship. She stated that her husband's family would never allow them to live together, and she was concerned for her safety at his house. The wife also confirmed that her parents were not detaining her unlawfully, nor had she been subjected to any harm. The judges noted that the wife had clearly stated she was not being held unlawfully by her parents. Therefore, the court dismissed the husband's petition, concluding that it could not issue an order allowing the wife to live with him, especially given her stated fears.
1. Petitioner is the husband of the alleged detenue. He seeks issuance of a writ of habeas corpus to cause production of the alleged detenue, on the premise that she is under illegal detention of her father/fifth respondent. The petitioner would aver that he married the alleged detenue, pursuant to a deep love affair, on 26.4.2022. They belong to different religions and due to the possible objections from their families, their marriage was got registered under the Special Marriage Act. However, from 12.5.2022 onwards, the detenue is not contacting the petitioner and she has been illegally confined by her father/the fifth respondent. Ext.P2 complaint preferred by the petitioner before the jurisdictional police evoked no response and, hence, the writ petition is filed. 2. As per order dated 19.5.2022, we directed the third respondent/S.H.O to get a statement of the alleged detenue by a Woman Civil Police Officer, without the presence of the parents or any other family members of the alleged detenue. Such statement is produced before us, wherein the alleged detenue would state that the marriage before the Sub Registrar, Kuttippuram was registered without the knowledge of their parents; that the detenue thought of accompanying the petitioner after one month, since her mother was alone in their house; that both the families, who came to know about the marriage, are not willing to accept them; that the parents of the petitioner would never permit them to live together; that the detenue is seriously apprehensive of her safety at the house of the petitioner and that she is not under any illegal detention of her parents. The alleged detenue would state that she was not subjected to any torture, whatsoever. Even when the alleged detenue would express that she is desirous of living with the petitioner, she fears that she would be ill-treated by the parents of the petitioner. 3. We see that the alleged detenue is ambivalent in her stand and she prevaricates as between her desire to be with the petitioner on the one hand, and her serious apprehension and fear of being ill-treated by the parents of the petitioner, on the other hand. 4. Having regard to our limited jurisdiction, where issuance of writ of habeas corpus is sought for, we are not in a position to pass any order enabling the alleged detenue to live along with the petitioner. When the detenue is categoric in her statement that she is not under any illegal detention of her parents, we find no ground to issue a writ of habeas corpus. We, therefore, dismiss this writ petition.
The Kerala High Court recently rejected a legal petition from a husband who asked for his wife to be brought before the court. This request, known as a "habeas corpus petition," was dismissed because the wife expressed significant concerns about her safety at her husband's residence. The couple had an interfaith marriage. A panel of two judges, Justice K. Vinod Chandran and Justice C. Jayachandran, heard the case. The husband had argued that his wife was being held unlawfully by her father. However, the wife clearly stated she had not been subjected to any harm. Although she expressed a desire to live with her husband, she also feared potential mistreatment from his parents. The Court found that the wife was unsure about her decision, torn between her wish to be with her husband and her serious fears of ill-treatment by his parents. According to the husband, he and his wife were from different religions, and they officially registered their marriage under the Special Marriage Act without informing their parents. However, he claimed that less than one month into the marriage, his wife stopped communicating with him. Suspecting that her father was holding her against her will, he filed a complaint with the local police, but nothing came of it. Because of this, he then brought this formal legal request to the High Court. When the matter first came up for review, the Court had directed the Station House Officer, who is the police chief, to obtain a statement from the wife. This statement was to be taken by a female police officer, ensuring her parents or any other family members were not present. In her statement, the wife explained that she had planned to live with her husband at his home after one month of marriage, as her mother would be alone at her place. However, news of their marriage spread quickly, and both families were unwilling to accept the relationship. She stated that her husband's family would never allow them to live together, and she was concerned for her safety at his house. The wife also confirmed that her parents were not detaining her unlawfully, nor had she been subjected to any harm. The judges noted that the wife had clearly stated she was not being held unlawfully by her parents. Therefore, the court dismissed the husband's petition, concluding that it could not issue an order allowing the wife to live with him, especially given her stated fears.
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1. The instant petition under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter “Arbitration Act”) has been filed on behalf of the petitioner against the ex-parte Arbitral Award dated 21st October 2019 (hereinafter “the Award”) passed by the learned Sole Arbitrator. The following reliefs are prayed for on behalf of the “a) Set aside the ex-parte award dated 21.10.2019 received on 05.11.2019 passed by Hon'ble Mr. Justice K. Ramamoorthy (Retd.) in arbitration proceedings held between M/s Gail Gas Ltd. and M/s Mittal Pigments Pvt. Ltd. O.M.P. (COMM) 509/2020 Page 1 of 29 b) And/or pass such other order/orders as this Hon'ble Court may deem it to be fit and proper in the facts and circumstances of the case.” 2. The facts relevant for adjudication of the instant petition are as a. The petitioner is a Private Limited Company engaged in manufacturing of metals and chemicals and the respondent is a Central Public Sector Undertaking having diversified interests across the Natural Gas value chain of trading, transmission, LPG production & transmission, LNG re-gasification, petrochemicals, city gas, etc. b. The petitioner obtained supply of Natural Gas for its factory premises located at A-203, Road No.5, Indraprastha Industrial Area, Kota, Rajasthan-324005 and accordingly, on 9th March 2010 a Gas Sale Agreement (hereinafter “the Agreement”) was executed between the parties. In terms of the Agreement, the supply was to commence from 1st August 2010 and was to continue till 2025. c. As per the agreement, Minimum Guaranteed Quantity of Gas (hereinafter “MGQ”) had to be purchased every month equivalent to the quantity obtained by multiplying 90% of the daily Nominated Quantity. Moreover, in accordance with a Price Side Letter dated 9th March 2010, the selling price of the Gas for the quarter beginning from January 2010 to March 2010 was decided O.M.P. (COMM) 509/2020 Page 2 of 29 to be Rs. 17.2/- SCM, including taxes. Another Side Letter dated 15th April 2010 was executed between the parties, whereby certain clauses of the Agreement were amended/revised, including the d. The amended Arbitration Clause read as follows:- “If any dispute, difference or question shall at any time hereafter arise between the parties hereto or their respective representatives in respect of the construction of these presents or concerning anything hereunder contained or arising out of these presents or as to the rights, liabilities or duties of the said parties hereunder, which cannot be mutually resolved by the parties, within (60) days after written notice of a dispute by one party to the other party, the same shall be referred to sole Arbitration. After the expiration of sixty (60) days seller shall suggest a panel of three (3) distinguished persons to the Buyer to select any one among them to act as the sole Arbitrator within thirty (30) days. The Buyer shall select sole Arbitrator within thirty (30) days from the receipt of communication suggesting the panel of Arbitrators. In the event of failure of the Buyer to select the sole Arbitrator within thirty (30) days from the receipt of the communication suggesting the panel of Arbitrator, the right of selection of Sole Arbitrator by the Buyer shall stand forfeighted and the seller shall have discretion to proceed with the appointment of sole Arbitrator. The decision of the Arbitrator shall be binding on both the parties. “The Arbitration proceedings shall be held in accordance with the provision of the Arbitration and Conciliation Act, 1996, as amended from time to time. The Arbitrator shall decide by whom and in what proportions the Arbitrator‟s fees as well as cost incurred in Arbitration shall be borne. The Arbitrator may, with the consent of the parties, enlarge the time, O.M.P. (COMM) 509/2020 Page 3 of 29 from time to time, to make and publish award, as the case may be. The venue of Arbitration shall be at e. During the course of the business between the parties, certain disputes arose amongst them, regarding which communications were also made. The issue initially arose regarding the delay in commencement date and thereafter, regarding the modification in the Daily Nominated Quantity, then regarding the invoices and ultimately regarding the payment and the default thereto. f. The respondent, vide its letter dated 7th August 2017, intimated the petitioner that its failure to clear outstanding dues of Rs. 1,29,73,780.01/- within the stipulated period entitled the respondent to terminate the Agreement, as per Clause 15.2 (vi) of the Agreement. Thereafter, the respondent also served a Legal Notice dated 27th March 2017 upon the petitioner invoking the Arbitration Clause of the Agreement and suggesting three names of potential Sole Arbitrators. g. The petitioner was advised not to participate in the arbitration proceedings since the petitioner had already approached the District Court at Kota, Rajasthan against the respondent seeking injunction against the invocation of Letter of Credit. In the month of December 2018, the petitioner was furnished a letter from the Arbitrator informing the date and place of arbitration, where the petitioner did not partake. h. Meanwhile, the Arbitrator initiated, held and concluded the O.M.P. (COMM) 509/2020 Page 4 of 29 arbitration proceedings and made an ex-parte Award dated 21st i. Aggrieved by the said ex-parte Award, the petitioner has approached this Court, seeking a challenge to the same. 3. Learned counsel appearing on behalf of the petitioner submitted that the Award was erroneous and bad in law. There was no attempt to serve the petitioner with a Show Cause Notice or any other pre-emptory notice/order before the learned Arbitrator proceeded ex-parte against the petitioner. It is also submitted that the learned Arbitrator failed to observe the provisions laid down under Section 25 (b) and 25 (c) of the Arbitration Act. According to the said provisions, the learned Arbitrator had the powers to inquire whether there was sufficient cause for absence of the party at the hearing and for the same should have issued a notice before proceeding ex-parte. 4. It is submitted that not only is the Award liable to be set aside for the reason of being proceeded with ex-parte without sufficient notice, but also because the learned Arbitrator has passed an unreasoned order, summarily allowing the claims of the respondent without sufficient cause or elaborate analysis and evaluation. 5. Learned counsel submitted that the Award has been passed without proper appreciation of the terms of the Agreement executed between the parties. Referring to Clause 11.1 (A)(ii) of the Agreement, learned counsel for the petitioner submitted that the respondent was duty bound to raise MGQ obligations, if any, in the second fortnight invoice of each O.M.P. (COMM) 509/2020 Page 5 of 29 month which was not done by the respondent, however, the learned Arbitrator overlooked this aspect. 6. It is submitted that the learned Arbitrator erroneously awarded interest @24% without considering the fact that the long term prime lending rate of State Bank of India in the year 2016 was 14.05%. It is also submitted that the learned Tribunal went beyond the terms of the contract between the parties. Learned counsel relied upon the judgment of State of Rajasthan vs. Nav Bharat Construction Company Ltd., (2006) 1 SCC 86, Bharat Coking Coal Ltd. vs. Annapurna Construction, (2003) 8 SCC 154 to give force to his arguments. 7. It is also submitted that the learned Arbitrator did not consider crucial facts in consonance with the terms of the contract, which led to several erroneous findings. Moreover, the petitioner did not get the opportunity to present its case before the learned Arbitrator. 8. In light of the aforesaid contentions, it is prayed that the impugned order may be set aside. 9. Per Contra, the learned counsel appearing on behalf of the respondent vehemently opposed the instant petition and submitted that although the petitioner has raised the challenge to the Award stating that the learned Arbitrator failed to give reasons for the order, however, has not argued the same in its pleadings. The petitioner is attempting to travel beyond the pleadings. Reliance has been placed upon National Thermal Power Corporation Ltd. vs. Wig Brothers Builders and Engineers Ltd., 2009 SCC OnLine Del 911, to submit that objections must be pleaded in the Section 34 petition for them to be entertained by the Court at the time O.M.P. (COMM) 509/2020 Page 6 of 29 of hearing. 10. It is submitted that there is no error in the impugned Award as the learned Arbitrator has given sufficient reasons while passing the Award. It is submitted that an arbitral award need not be elaborate and is to be read in context of the material referred to in it. 11. It is further submitted that the petitioner has entered into the facts and merits of the case which would amount to re-appreciation of evidence, and this Court does not have to power to enter into detailed evidence at this stage under Section 34 of the Arbitration Act. 12. Learned counsel for the respondent opposed the submission made on behalf of the petitioner that no notice was served with respect to the arbitration proceedings, however, it is also admitted that in December 2018, a notice was served upon the petitioner by the learned Arbitrator. Despite the said notice, the petitioner chose not to attend proceedings and has now approached this Court seeking remedy under Section 34 of the 13. It is submitted that the learned Arbitrator has considered all material facts, circumstances, claims and the material before it while passing the Award which is free from errors and hence, there is no merit in the objections raised on behalf of the petitioner. Therefore, it is submitted that the instant petition is liable to be dismissed. 14. Heard learned counsel for the parties and perused the record, including the impugned Award dated 21st October 2019. O.M.P. (COMM) 509/2020 Page 7 of 29 15. The petitioner has invoked the jurisdiction of this Court under Section 34 of the Arbitration Act which reads as under:- “34. Application for setting aside arbitral award.— (1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3). (2) An arbitral award may be set aside by the Court only if— (a) the party making the application [establishes on the basis of the record of the arbitral tribunal that]— (i) a party was under some incapacity, or (ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or (iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or (iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration: Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or (v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in O.M.P. (COMM) 509/2020 Page 8 of 29 accordance with this Part; or (i) the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or (ii) the arbitral award is in conflict with the public policy of India. [Explanation 1.—For the avoidance of any doubt, it is clarified that an award is in conflict with the public policy of (i) the making of the award was induced or affected by fraud or corruption or was in violation of section 75 or section 81; or (ii) it is in contravention with the fundamental policy of Indian law; or (iii) it is in conflict with the most basic notions of morality or justice. Explanation 2.—For the avoidance of doubt, the test as to whether there is a contravention with the fundamental policy of Indian law shall not entail a review on the merits of the 16. The scope of Section 34 of the Arbitration Act is limited yet extensive. The contents of the provision abundantly show that the intention of legislature while enacting the Arbitration and Conciliation Act, as well as while amending the same, was that there should be limited intervention of the Courts in arbitral proceedings, especially after the proceedings have been concluded and an Award thereto has been made by the concerned Arbitrator(s). Therefore, the situations in which a Court can have been clearly laid down under the provision where a Court can interfere. It is an established principle of law that a Court exercising its jurisdiction under Section 34 of the Arbitration Act cannot enter in to the O.M.P. (COMM) 509/2020 Page 9 of 29 merits of the case while appreciating facts and evidence afresh. Therefore, this Court as well, without entering into the merits of the case, shall examine the impugned Award dated 21st October 2019. 17. By way of filing the instant petition, the petitioner has sought indulgence of this Court while challenging the Arbitral Award in question. Upon a perusal of the pleadings and the upon hearing the learned counsel for the parties at length, this Court finds that the controversy between the parties qua the impugned Arbitral Award may be narrowed down to the following issues:- Issue I- Whether sufficient notice was served upon the petitioner regarding arbitration proceedings as well as ex-parte proceedings. Issue II- Whether the Award dated 21st October 2019 was a reasoned Award not inviting the interference from this Court. 18. A preliminary objection raised on behalf of the petitioner is that sufficient notice was not served upon it before the arbitration proceedings were proceeded against him ex-parte. 19. The respondent had furnished the notice dated 27 th March 2018 upon the petitioner, in accordance with Section 21 of the Arbitration Act, suggesting three Arbitrators to adjudicate the disputes between the parties. To the said notice, the petitioner furnished its reply dated 4th May 2018, whereby the respondent was intimated that proceedings under Suit No. 311/2016 before the Civil Court against the respondent were initiated and pending, therefore, the petitioner could not participate in the O.M.P. (COMM) 509/2020 Page 10 of 29 arbitration proceedings. 20. Thereafter, admittedly no communication was made by or on behalf of the respondent intimating the initiation of arbitration proceedings. It was only in the month of December 2018, that the petitioner had received a communication from the Arbitrator concerned, calling upon the petitioner to appear for the arbitration proceedings at the time and place decided. It is the case of the petitioner that since the proceedings against the respondent pertaining to the disputes between the parties were already pending, which was also in the knowledge of the respondent, the arbitration proceedings ought not to have been initiated or continued. 21. The Section 25 of the Arbitration Act, provides for powers of the Arbitrator to terminate the arbitration proceedings, forfeit the right of defence, and proceed ex-parte in the following cases:- “25.Default of a party.— Unless otherwise agreed by the parties, where, without showing sufficient cause,— (a) the claimant fails to communicate his statement of claim in accordance with sub-section (1) of section 23, the arbitral tribunal shall terminate the proceedings; (b) the respondent fails to communicate his statement of defence in accordance with sub-section (1) of section 23, the arbitral tribunal shall continue the proceedings without treating that failure in itself as an admission of the allegations by the claimant [and shall have the discretion to treat the right of the respondent to file such statement of defence as having been forfeited]. (c) a party fails to appear at an oral hearing or to produce documentary evidence, the arbitral tribunal may O.M.P. (COMM) 509/2020 Page 11 of 29 continue the proceedings and make the arbitral award on the evidence before it.” 22. The instant case lies within the ambit of Section 25(c) of the Arbitration Act. Here, the petitioner chose not to appear before the learned Arbitrator. However, the pertinent question to be answered is whether before proceeding ex-parte against the petitioner, was there any procedural requirement, including furnishing of notice etc., to be fulfilled by the learned Arbitrator or the respondent. 23. A bare reading of the provision shows that an Arbitrator may continue the proceedings and make the arbitral award on the evidence before it where a party fails to appear at an oral hearing or to produce documentary evidence without showing sufficient cause, unless otherwise is decided amongst the parties. It is clear, that before taking an action in accordance with Section 25(c) of the Arbitration Act, the Arbitrator is to examine whether the absence of the parties is with or without showing sufficient cause. Therefore, it is evident that an opportunity is to be given to a party to the dispute before the Arbitrator decides to proceed on the basis of the evidence before it. 24. In the landmark judgment of Juggilal Kamlapat v. General Fibre Dealers Ltd., 1954 SCC OnLine Cal 53, the principle of pre-emptory notice for ex-parte proceedings and principle of prejudice being cause in case of such ex-parte proceedings was discussed:- “20. On those facts, the Court held that the holding of the arbitration proceedings on the first day without any notice to the defendants was itself sufficient to invalidate the award and that, throughout, the arbitrators had rushed the hearing of the case without paying any attention to the protests of the O.M.P. (COMM) 509/2020 Page 12 of 29 defendants. Referring to the meeting of the first day, the learned Chief Justice observed that in holding that meeting, the arbitrators did not appear to him to have acted “with that absolute impartiality, with that sense of fairness to both sides”, which was “so essential and so preliminary an element” in cases of that class. The necessity of giving a notice of an intention to proceed ex parte in the event of the non-appearance of a party was not specifically referred to in the judgment, but the learned Chief Justice said that it was a strong thing for the arbitrators to proceed after the letter of the defendants' attorney without giving any further intimation that they intended to proceed. The conduct of the arbitrators, it was held, amounted to misconduct. 25. More or less of the same nature was the case of — „Bhowanidas Ramgobind v. Harsukhdas Balkishendas‟, AIR 1924 Cal 524 (D), decided by Mookerjee and Rankin, JJ. There also, no notice was given by the arbitrators that they would proceed ex parte against any party who would not appear and an award was made against certain parties, who were the sellers, in their absence. The principles laid down in the earlier case of AIR 1920 Cal 853 (C), were reiterated in the judgment. As to the facts, it was pointed out that on a certain date the sellers had intimated that they would not submit to the jurisdiction of the tribunal of arbitrators as in their view, that tribunal could not possibly have any jurisdiction over the subject matter of the dispute. They had not also taken a part in the arbitration proceedings at any stage, those circumstances, the Court held that the sells could not be said to have been prejudiced by the course taken by the arbitrators and, therefore, the award, although made ex parte against them, … not liable to be set aside. 29. If, on the other hand, it appears that the defaulting party had absented himself with a view to preventing justice or defeating the object of the reference, the arbitrator should issue a notice that he intends at a specified time and place to proceed with the reference and that if the party concerned does not attend, he will proceed in his absence. But if after making such a peremptory appointment and issuing such a O.M.P. (COMM) 509/2020 Page 13 of 29 notice, the arbitrator does not in fact proceed ex parte on the day fixed, but fixes another subsequent date, he can-, not proceed ex parte on such subsequent date unless he issues a similar notice in respect of that date as well. 30. If he issues a similar notice and the party concerned does not appear, an award made ex parte, will be in order. But if he does not issue such a notice on the second occasion, but nevertheless proceeds ex parte, the award will be liable to be set aside in spite of a notice of a peremptory hearing having been given in respect of the earlier date, subject, however, to the condition that prejudice was caused to the party against whom the ex parte order was made. But this duty to give notice of an intention to proceed ex parte is not an absolute duty. 31. If it appears from the circumstances of the case that a particular party is determined not to appear before the arbitrators in any event, as when he has openly repudiated either the reference itself or the particular arbitrators and has shown no desire to recant, the arbitrators are not required to issue a notice of an intention to proceed ex parte against such a recusant person and may proceed ex parte and make a valid award without issuing a notice. The better course, however, even in such a case is to issue a notice and give the party concerned a chance to change his mind. 32. The above is what the arbitrators are required on their own part to do. Where the question arises after an ex parte award has, in fact, been made and it appears that no notice of an intention to proceed ex parte had been given, the principle to be applied is that the award will not be upheld, unless it is shown or it appears that the omission to give a notice has not caused any prejudice to the party against whom the ex parte award was made, because he had made it abundantly clear that he would not appear before the arbitrators in any circumstances. When there has been an omission to give a notice, there will, however, always be a presumption that prejudice has been caused. But the presumption can be rebutted by the other party or can be O.M.P. (COMM) 509/2020 Page 14 of 29 seen to be rebutted by circumstances appearing on the face of the record. The principle to be borne in mind in such cases is that the failure to attend is not required to be explained on satisfactory grounds in order to dislodge the ex parte in ward, but the ex parte award requires to be defended by establishing that the omission to issue in notice of an intention to proceed ex parte has not caused any prejudice.” 25. A Co-ordinate Bench of this Court in Lovely Benefit Chit Fund & Finance Pvt. Ltd vs. Shri Puran Dutt Sood & Ors., 1983 SCC OnLine Del 22, made observations on the principle of ex-parte proceedings as “10. The question for decision is whether in this case the arbitrator should have given notice of change of venue and of his intention to proceed ex-parte against the respondents when they had not appeared before him. There is no hard and fast rule of giving notice by the arbitrator of his intention to proceed exparte or to change the venue of arbitration proceedings. But the principles of natural justice require that a person cannot be condemned unheard and he should be afforded a reasonable opportunity of being heard. In the instant case all the respondents are not residents of Delhi but of Ludhiana. The petitioner-claiment has its registered office at New Delhi. The respondents selected their Advocate, briefed him and paid his fee. They can remain confident that their lawyer will look after their interest and as such they have done what was in their power and expect the lawyer to do the needful. The respondents after having appointed the lawyer should not suffer for the in action or deliberate ommission of their counsel. In Rafiq and another v. Munshilal and another, AIR 1931 S.C. 1400 it has been held that a party should not suffer for the inaction of his counsel. In that case appeal was dismissed for default of appellant's counsel. The dismissal was set aside by the Supreme Court. In the instant case, as already stated, the respondents are residents of Ludhiana and therefore the arbitrator before proceeding ex parte ought to have given O.M.P. (COMM) 509/2020 Page 15 of 29 notice of his intention to proceed ex parte against them on a specified date, time and place of arbitration proceedings. In Halsbury's Laws of England, Fourth Edition, Vol. 2 Page 590 page 306 it has been stated as under: “Where the arbitrator proposes to proceed with the reference notwithstanding the absence if one of the parties, it is advisable that he should give that party distinct notice of his intention to do so. If reasonable excuse for not attending the appointment can be shown, the court will set aside an award made by an arbitrator who has proceeded ex parte.” In Russell on Arbitration, Nineteenth Edition page 271 the following passage appears. “Notice of intention to proceed ex parte: In general, the arbitrator is not justified in proceeding ex parte without giving the party absenting himself due notice. It is advisable to give the notice in writing to each of the parties or their solicitors. It should express the arbitrator's intention clearly, otherwise the award may be set aside. An ordinary appointment for a meeting with the addition of the word” “Peremptory” marked on it is, however, sufficient. If the arbitrator declines to proceed on the first failure to attend a peremptory appointment, and gives another appointment, he is not authorised to proceed ex-parte at the second meeting, unless the appointment for it was also marked “peremptory” or contained a similar intimation of his intention.” In Bhowanidas Ramgobind v. Harasukhdas Balkishendas, AIR 1924 Calcutta 524 a Division Bench has held that arbitrators should give notice of their intention to proceed ex-parte if one of the parties should not appear but their award is valid if the complainant has not been prejudiced in any manner by the failure of the arbitrators to give such notice. In Udaichand Panna Lall v. Debibux Jewanram AIR 1920 Calcutta 553 it has been observed that before an O.M.P. (COMM) 509/2020 Page 16 of 29 arbitrator proceeds ex-parte he should give notice in writing to each of the parties, otherwise the award may be liable to be set aside. In Bratapsingh v. Kishanprasad and Co. Ltd. AIR 1932 Bombay 68 it has been observed that even when an arbitrator considers that the time and place fixed by him for the meeting are reasonable and if after service of notice one of the parties to the arbitration fails to attend before him he is entitled to proceed with the arbitration ex-parte. But it is still advisable for him though it is not compulsory, that he should give that party notice of his intention to do so. Similar observation were made in Ariyur Mohammad Habeebur Rahman and others v. Aasuri Varama (died) and another AIR 1974 Andhra Pradesh 113(118) and Prem Nath L. Harsaran Dass and another v. Om Parkash L. Ram Kishen Dass Kamlapat v. General Fibre Dealers Ltd. AIR 1955 Calcutta 354 the following principles have been alaid down to determine whether the failure of the arbitrator to give notice of his intention to proceed ex parte amounts to misconduct. 1. If a party to an arbitration agreement fails to appear at one of the sittings, the arbitrator cannot or, at least, ought not to, proceed ex parte against him at that sitting. Where in such a case it does not appear that the non appearance was anything but accidental or causual, the arbitrator ought ordinarily to proceed in the ordinary way, fixing another date of hearing and awaiting the future behaviour of the defaulting party. 2. If, on the other hand, it appears that the defaulting party had absented himself with a view to preventing justice or defeating the object of the reference, the arbitrator should issue a notice that he intends at a specified time and place to proceed with the reference and that if the party concerned does not attend, he will proceed in his absence. But if after making such a peremptory appointment and issuing such a notice, the arbitrator does not in fact proceed ex parte on the day O.M.P. (COMM) 509/2020 Page 17 of 29 fixed, but fixes another subsequent date, he cannot proceed ex parte on such subsequent date unless he issues a similar notice in respect of that date as well. 3. If he issues a similar notice and the party concerned does not appear, an award made ex parte, will be in order. But if he does not issue such a notice on the second occasion, but nevertheless proceeds ex parte, the award will be liable to be set aside in spite of a notice of a peremptory hearing having been given in respect of the earlier date, subject, however, to the condition that prejudice was caused to the party against whom the ex parte order was made. But this duty to give notice of an intention to proceed ex parte is not an absolute duty. 4. If it appears from the circumstances of the case that a particular party is determined not to appear before the arbitrators in any event, as when he has openly repudiated either the reference itself or the particular arbitrators and has shown no desire to recent the arbitrators are not required to issue a notice of an intention to proceed ex parte against such a re-sant person and may proceed ex parte and make a valid award without issuing a notice. The better course, however, even in such a case is to issue a notice and give the party concerned a change to change his mind. 5. Where the question arises after an ex parte award has, in fact, been made an it appears that no notice of an intention to proceed ex parte had been given, the principle to be applied is that the award will not be unheld, unless it is shown or it appears that the omission to give a notice has not caused any prejudice to the party against whom the ex parte award was made, because he had made it abundantly clear that he would not appear before the arbitrators in any circumstances. When there has been an omission to give a notice, there will, however, always be a presumption that prejudice has been caused. But the O.M.P. (COMM) 509/2020 Page 18 of 29 presumption can be rebutted by the other party or can be borne in mind in such cases is that the appearing on the face of the record. The principle to be borne in mind in such cases is that the failure to attend is not required to be explained on satisfactory grounds in order to dislodge the ex parte award, but the ex parte award requires to be defended by establishing that the omission to issue a notice of an intention to proceed ex parte has not caused any prejudice.” In Mt. Amir Begam v. Syed Badr-ud-din Husait and others, AIR 1914 Privy Council 105 it has been observed that if irregularities in procedure can be proved which would amount to no proper hearing of the matters in dispute, there would be misconduct sufficient to vitiate the award without any imputation on the honesty or partiality of the arbitrator. Similar observations were made in Sadu Singh and others v. Ramdeo Singh, AIR 1943 Patna 318. 11. From these authorities, it is apparent that an arbitrator ought not to proceed ex parte against a party if he has failed to appear at one of the sittings. The arbitrator should fix another date for hearing and give notice to the defaulting party, of his intention to proceed ex parte on a specified date time and place. Even after notice if the defaulting party does not take part in the proceedings the arbitrator may proceed in his absence. 12. When an ex parte award has been made the principle to be applied is that the award will not be upheld unless it is apparent that the failure to give notice of intention to proceed ex parte has not caused any prejudice to the party against whom the ex parte award was made.” 26. The Calcutta High Court in Magma Leasing Limited vs. Gujarat Composite Limited, 2006 SCC OnLine Cal 235, entertaining the question whether the Arbitrator therein was right to proceed ex-parte due to non-appearance of the party on one hearing observed as under, while remitting the case back to the arbitrator:- O.M.P. (COMM) 509/2020 Page 19 of 29 “10. Now coming to the merit of the matter it appears to us that learned first Court has held upon applying his mind that opportunity of being heard was not given and also that no reason was given by the learned Arbitrator. We shall deal with the decision of the first Court regarding giving of opportunity. It appears from the records that learned Arbitrator at one point of time proceeded with this matter without any evidence being adduced. And we think this procedure is not illegal. 11. From the records we find the notices were given upon both the parties on each and every occasion. The respondent appeared before the learned Arbitrator and participated in the proceedings either effectively making submission or obtaining adjournment. However, on the last occasion the respondent failed to appear and on that date itself the learned Arbitrator proceeded with finally and concluded the hearing and thereafter award was passed. 13. In our opinion the aforesaid provision is enabling provision and ample discretion has been left with learned tribunal with the word “may”. It is settled position of law that power of discretion is exercised with restraint and when there other option left, in particular in judicial and quasi- judicial proceedings. It does not mean that the learned Arbitrator should exercise this extreme power in case of one default. We are not for a single moment supporting any lackadaisical litigant to take refuge to the aforesaid discretionary provision. Discretion is always a judicial if not judicious. Judicious action demands in a case of this nature that on one hand unnecessary latitude of indulgence should not be given, and on the other hand the learned Arbitrator should not proceed hastily. There are decisions of this Court while considering and discussing the procedure of arbitration proceedings held under repealed Arbitration Act, 1940 wherein Court formulated concept of serving peremptory notice of hearing so that a litigant may be warned if he defaults in future, final act may be performed by the learned Arbitrator. In this connection a decision of Division Bench of this Court reported in AIR 1955 Cal 354 O.M.P. (COMM) 509/2020 Page 20 of 29 may be referred to. 4. Here factually the respondent defaulted only on one day and we think the learned Arbitrator should not have exercised discretionary power while concluding the hearing. 15. We think another chance should have been given because in the record there is no successive failure on the part of the respondent, although adjournment was sought for, true. But in all fairness a peremptory notice should have been given. Under those circumstances, we feel the reasoning of the first Court is justified. However, the aforesaid elaborate discussion was not recorded by His Lordship. 18. Learned Arbitrator shall proceed on day-to-day basis and shall give chance of hearing to the respondent on merit and he shall proceed from the stage where it was left by him and will not start de novo…” 27. Therefore, it is abundantly clear that, though not stipulated under the Act in clear terms, it has always been preferred and encouraged that an Arbitrator provides a preemptory notice to any party against whom it is seeking to proceed ex-parte. There is no doubt to the fact that in the instant case the learned Arbitrator did not communicate the facts of proceedings being initiated, continued and proceeded with ex-parte to the petitioner, which it ought to have at some point of time before making the Award. Strong observations have been made on this question by the Courts and hence, this Court also submits to the observations as quoted in the foregoing paragraphs. The action on part of the learned Arbitrator was erroneous and hence, warrants interference from this Court. 28. Another aspect to be seen it that as per the reply dated 4th May 2018, the respondent also had the knowledge of pending proceedings before the Civil Court at Kota, Rajasthan, yet after over six months, the arbitration proceedings were initiated, continued and concluded without O.M.P. (COMM) 509/2020 Page 21 of 29 the petitioner. Therefore, this Court finds that the Suit pertaining to the same issues between the parties being pending was in itself sufficient cause for learned Arbitrator not to proceed ex-parte against the petitioner after only one intimation and opportunity to appear for arbitration proceedings. 29. To evaluate second issue, it is to be seen whether an Arbitrator is to pass a well reasoned order while passing an award, if yes, whether in the instant case the impugned Award could said to have been a reasoned award. 30. At the very outset, this Court deems it fit to refer to Section 31(3) of the Arbitration Act, which is reproduced hereunder:- “31. Form and contents of arbitral award.- (3) The arbitral award shall state the reasons upon which it is based, unless— (a) the parties have agreed that no reasons are to be (b) the award is an arbitral award on agreed terms under Section 30.” 31. It is apparent that one of the essential requirements to be met while making an award includes that the reasons for passing the award must be stated. 32. The Hon’ble Supreme Court in Dyna Technologies (P) Ltd. vs. Crompton Greaves Ltd., (2019) 20 SCC 1, while determining a similar question held as under:- “26. Having established the basic jurisprudence behind O.M.P. (COMM) 509/2020 Page 22 of 29 Section 34 of the Arbitration Act, we must focus on the analysis of the case. The primary contention of the learned counsel appearing on behalf of the appellant is that the award by the learned Tribunal was perverse for want of reasons. The necessity of providing reasons has been provided under Section 31 of the Arbitration Act, which “31. Form and contents of arbitral award.—(1)-(2) (3) The arbitral award shall state the reasons upon which it is based, unless— (a) the parties have agreed that no reasons are to be (b) the award is an arbitral award on agreed terms under Section 30.” 27. Under the Uncitral Model Law the aforesaid provision is provided as under: “31. (2) The award shall state the reasons upon which it is based, unless the parties have agreed that no reasons are to be given or the award is an award on agreed terms under Article 30.” 28. Similar to the position under the Model Law, India also adopts a default rule to provide for reasons unless the parties agree otherwise. As with most countries like England, America and Model Law, Indian law recognises enforcement of the reasonless award if it has been so agreed between the parties. 35. When we consider the requirement of a reasoned order, three characteristics of a reasoned order can be fathomed. They are: proper, intelligible and adequate. If the reasonings in the order are improper, they reveal a flaw in the decision- making process. If the challenge to an award is based on impropriety or perversity in the reasoning, then it can be challenged strictly on the grounds provided under Section 34 of the Arbitration Act. If the challenge to an award is based O.M.P. (COMM) 509/2020 Page 23 of 29 on the ground that the same is unintelligible, the same would be equivalent of providing no reasons at all. Coming to the last aspect concerning the challenge on adequacy of reasons, the Court while exercising jurisdiction under Section 34 has to adjudicate the validity of such an award based on the degree of particularity of reasoning required having regard to the nature of issues falling for consideration. The degree of particularity cannot be stated in a precise manner as the same would depend on the complexity of the issue. Even if the Court comes to a conclusion that there were gaps in the reasoning for the conclusions reached by the Tribunal, the Court needs to have regard to the documents submitted by the parties and the contentions raised before the Tribunal so that awards with inadequate reasons are not set aside in casual and cavalier manner. On the other hand, ordinarily unintelligible awards are to be set aside, subject to party autonomy to do away with the reasoned award. Therefore, the courts are required to be careful while distinguishing between inadequacy of reasons in an award and unintelligible awards. 37. In case of absence of reasoning the utility has been provided under Section 34(4) of the Arbitration Act to cure such defects. When there is complete perversity in the reasoning then only it can be challenged under the provisions of Section 34 of the Arbitration Act. The power vested under Section 34(4) of the Arbitration Act to cure defects can be utilised in cases where the arbitral award does not provide any reasoning or if the award has some gap in the reasoning or otherwise and that can be cured so as to avoid a challenge based on the aforesaid curable defects under Section 34 of the Arbitration Act. However, in this case such remand to the Tribunal would not be beneficial as this case has taken more than 25 years for its adjudication. It is in this state of affairs that we lament that the purpose of arbitration as an effective and expeditious forum itself stands effaced. 42. From the facts, we can only state that from a perusal of the award, in the facts and circumstances of the case, it has been rendered without reasons. However, the muddled and O.M.P. (COMM) 509/2020 Page 24 of 29 confused form of the award has invited the High Court to state that the arbitrator has merely restated the contentions of both parties. From a perusal of the award, the inadequate reasoning and basing the award on the approval of the respondent herein cannot be stated to be appropriate considering the complexity of the issue involved herein, and accordingly the award is unintelligible and cannot be sustained.” 33. Further, Som Datt Builders Ltd. vs. State of Kerala, (2009) 10 SCC 259, an elaborate finding regarding reasoned arbitral awards was made by the Hon’ble Supreme Court, which is reproduced hereunder:- “20. Section 31(3) mandates that the arbitral award shall state the reasons upon which it is based, unless—(a) the parties have agreed that no reasons are to be given, or (b) the award is an arbitral award under Section 30. ….. By legislative mandate, it is now essential for the Arbitral Tribunal to give reasons in support of the award. It is pertinent to notice here that the 1996 Act is based on UNCITRAL Model Law which has a provision of stating the reasons upon which the award is based. 21. In Union of India v. Mohan Lal Capoor [(1973) 2 SCC 836: 1974 SCC (L&S) 5] this Court said: (SCC p. 854, para “28. … Reasons are the links between the materials on which certain conclusions are based and the actual conclusions.” 22. In Woolcombers of India Ltd. v. Workers' Union [(1974) 3 SCC 318 : 1973 SCC (L&S) 551 : AIR 1973 SC 2758] this Court stated: (SCC pp. 320-21, para 5) “5. … The giving of reasons in support of their conclusions by judicial and quasijudicial authorities when exercising initial jurisdiction is essential for various reasons. First, it is calculated to prevent unconscious unfairness or arbitrariness in reaching the conclusions. The very search O.M.P. (COMM) 509/2020 Page 25 of 29 for reasons will put the authority on the alert and minimise the chances of unconscious infiltration of personal bias or unfairness in the conclusion. The authority will adduce reasons which will be regarded as fair and legitimate by a reasonable man and will discard irrelevant or extraneous considerations.” 23. In S.N. Mukherjee v. Union of India [(1990) 4 SCC 594 : 445] the Constitution Bench held that recording of reasons “(i) guarantee consideration by the authority; (ii) introduce clarity in the decisions; and (iii) minimise chances of arbitrariness in decision-making.” (SCC p. 25. The requirement of reasons in support of the award under Section 31(3) is not an empty formality. It guarantees fair and legitimate consideration of the controversy by the Arbitral Tribunal. It is true that the Arbitral Tribunal is not expected to write a judgment like a court nor is it expected to give elaborate and detailed reasons in support of its finding(s) but mere noticing the submissions of the parties or reference to documents is no substitute for reasons which the Arbitral Tribunal is obliged to give. Howsoever brief these may be, reasons must be indicated in the award as that would reflect the thought process leading to a particular conclusion. To satisfy the requirement of Section 31(3), the reasons must be stated by the Arbitral Tribunal upon which the award is based; want of reasons would make such award legally flawed.” 34. Therefore, it is evident that the Hon’ble Supreme Court has reiterated the significance of passing a reasoned award. As per the interpretation as aforesaid, the award is not just to be reasoned by such reasons, which give effect to the findings and the final award, must be proper, intelligible and adequate. The recording of reasons and the O.M.P. (COMM) 509/2020 Page 26 of 29 findings thereto is also a testament to the fact that the concerned arbitrator has applied his mind while passing the award and deciding claims in favour of either or both the parties. An award without reasons and findings is mere reiteration of the claims of the parties. Hence, the passing of a reasoned award laying down the grounds and findings was imperative for the learned Arbitrator. 35. The question which now remains is whether the impugned Award dated 21st October 2019 was reasoned. The relevant portion of the Award whereby the claims were decided in the favour of the respondent is reproduced herein:- “9. Having considered the materials submitted by the claimant, I am satisfied that the claimant has proved its claim against the respondent for the amount due from the respondent at Rs.1,75,86,533.78. 12. In view of this, the claimant is entitled to interest at the rate of 24% P.A. on the sum of Rs. 1,75,86,533.78 w.e.f. 01.04.2019 till the date of payment. 13. Regarding the costs, I direct the respondent to pay the claimant a sum of Rs. 1,76,962/-. 14. I place on record all assistance rendered by Mr. Deepayan Mandal Ld. Counsel for the Claimant on the projection of the case explaining the details of the matter in clear terms. I. Directing the respondent to pay Rs. 1,75,86,533.78 II. Directing the respondent to pay Interest at the rate of 24% P.A on the sum of Rs. 1,75,86,533.78 w.e.f. 01.04.2019 till the date of payment.” 36. A perusal of the order reveals that the same is a mere four page order reiterating the claims of the respondent and making the aforesaid O.M.P. (COMM) 509/2020 Page 27 of 29 summary findings while accepting the said claims. The order does not reveal appreciation of evidence or material or record and also does not lay down the grounds taken for the decision made. The claims were decided in the favour of the respondent as they were claimed and pleaded before the learned Arbitrator. 37. The learned Arbitrator need not have given elaborate, comprehensive or extensive Award but the mere recording of reasons for the findings made was an indispensable requirement to be met. Fulfilling the requirements under Section 31(3) of the Arbitration Act, is not a mere formality, but this provision makes way for a fair, reasonable and equitable opportunity to have the objective knowledge of the reasons why a claim is not decided in their favour. Accordingly, this Court finds that the principles laid down by the Hon’ble Supreme Court favour the case of the petitioner qua the requirement of passing a reasoned order being indispensable. 38. In light of the facts, circumstances, contentions raised in the pleadings, argument made on behalf of the parties, the observations of the Hon’ble Supreme Court and other High Courts of the country, the provisions of the Arbitration Act and the discussion in the foregoing paragraphs, this Court finds merit in the petition and is inclined to allow the same. 39. The Arbitral Award dated 21st October 2019 was passed without proper communication to the petitioner, before proceeding ex-parte, and without affording reasonable opportunity to present its case. The learned O.M.P. (COMM) 509/2020 Page 28 of 29 Arbitrator did not make adequate efforts to be satisfied that sufficient cause was to be shown for non-appearance before proceeding ex-parte against the petitioner. Further, it was incumbent for the learned Arbitrator to furnish reasons for his findings in favour of the respondent. 40. Accordingly, the instant petition and the prayers therein are allowed and ex-parte Arbitral Award dated 21st October 2019 is set aside for the reasons stated as above. 41. Pending applications stand disposed of, in light of the observations made above. 42. The order be uploaded on the website forthwith. Click here to check corrigendum, if any O.M.P. (COMM) 509/2020 Page 29 of 29
The Delhi High Court has overturned a decision made by an arbitrator because the arbitrator did not properly tell one side about the hearing before making a decision without them. The court also found that the arbitrator did not try hard enough to find out if the missing party had a good reason for not showing up. Justice Chandra Dhari Singh's court decided that under the Arbitration and Conciliation Act of 1996, it's always best for an arbitrator to send a warning notice before moving ahead without one party. This is true even if the Act does not clearly state that such a notice is required. The Court also pointed out that a separate lawsuit about the same problem was already ongoing between the two sides. This ongoing lawsuit was a good enough reason for the arbitrator not to decide the case without the missing party, especially since they only got one notice to show up. Mittal Pigments Pvt Ltd and GAIL Gas Ltd had signed an agreement to sell gas. When disagreements came up, GAIL used a part of the agreement that said arguments should be settled by an arbitrator. Because of this, an arbitrator made a decision favoring GAIL without Mittal Pigments being present. Mittal Pigments, the company that lost the arbitration, challenged this decision. They filed a formal request with the Delhi High Court under Section 34 of the A&C Act to overturn the award. Mittal Pigments told the High Court that they did not get enough warning before the arbitrator made a decision without them. They argued that the arbitrator did not try to send them any kind of warning notice or order before moving forward without their presence. Mittal Pigments also argued that the arbitrator's decision did not explain why it favored GAIL. They said the arbitrator quickly approved GAIL's demands without good reason or a careful review. Looking at the details of the case, the judge noted that Mittal Pigments had told GAIL, in its response to the arbitration notice, that it had started a lawsuit against GAIL in a court in Rajasthan. Because of this, Mittal Pigments could not take part in the arbitration. The Court noticed that Mittal Pigments had received only one notice from the arbitrator, asking it to attend the arbitration, before the arbitrator made a decision without them. Mittal Pigments argued to the High Court that since a lawsuit about the same problem was already ongoing against GAIL in the District Court, and GAIL knew about it, the arbitration should not have been started or continued. The Court noted that Section 25 of the A&C Act allows an arbitrator to stop arbitration, take away a party's right to defend itself, and make a decision without one party in certain situations. Specifically, Section 25(c) states that an arbitrator can continue and make a decision based on the evidence they have if a party does not show up for a meeting or provide documents, as long as they don't have a good reason for their absence, unless the parties have agreed otherwise. The judge noted that because Mittal Pigments decided not to appear before the arbitrator, this case seemed to fit the rules of Section 25(c) of the A&C Act. However, the Court added that before an arbitrator acts under Section 25(c), they must check if the missing party has a good reason for not being there. So, the Court decided it is clear that a party must be given a chance to explain their absence before the arbitrator makes a decision without them, based on the evidence at hand. The judge concluded that it is very clear that the A&C Act strongly suggests an arbitrator should send a warning notice to any party they plan to make a decision against without them. This is true even if the Act does not clearly state this as a requirement. The Court also noted another point: according to a reply from May 4, 2018, GAIL knew that a lawsuit was already ongoing in a court in Rajasthan. Still, more than six months later, the arbitration started, continued, and finished without Mittal Pigments. The judge further said that the ongoing lawsuit about the same problems between the parties was, by itself, a good enough reason for the arbitrator not to make a decision without Mittal Pigments, especially after only sending them one notice and one chance to appear. The Court also pointed out that it is absolutely necessary for the arbitrator to write down the reasons for the decisions made in their ruling. After looking closely at the arbitrator's decision that favored GAIL, the Court said: "The decision is only four pages long. It just repeated what GAIL asked for and quickly agreed to those demands. The order does not show that the arbitrator carefully reviewed any evidence or documents. It also does not explain the reasons for the decision. GAIL's demands were simply approved as they were presented to the arbitrator." The judge therefore decided: "The arbitrator's decision from October 21, 2019, was made without properly communicating with Mittal Pigments before deciding without them. It also did not give Mittal Pigments a fair chance to present its side. The arbitrator did not try hard enough to make sure there was no good reason for Mittal Pigments not showing up before proceeding without them. Furthermore, the arbitrator had a duty to explain the reasons for his decisions that favored GAIL." Because of all this, the Court approved Mittal Pigments' request and cancelled the arbitrator's decision that was made without them.
1. The instant petition under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter “Arbitration Act”) has been filed on behalf of the petitioner against the ex-parte Arbitral Award dated 21st October 2019 (hereinafter “the Award”) passed by the learned Sole Arbitrator. The following reliefs are prayed for on behalf of the “a) Set aside the ex-parte award dated 21.10.2019 received on 05.11.2019 passed by Hon'ble Mr. Justice K. Ramamoorthy (Retd.) in arbitration proceedings held between M/s Gail Gas Ltd. and M/s Mittal Pigments Pvt. Ltd. O.M.P. (COMM) 509/2020 Page 1 of 29 b) And/or pass such other order/orders as this Hon'ble Court may deem it to be fit and proper in the facts and circumstances of the case.” 2. The facts relevant for adjudication of the instant petition are as a. The petitioner is a Private Limited Company engaged in manufacturing of metals and chemicals and the respondent is a Central Public Sector Undertaking having diversified interests across the Natural Gas value chain of trading, transmission, LPG production & transmission, LNG re-gasification, petrochemicals, city gas, etc. b. The petitioner obtained supply of Natural Gas for its factory premises located at A-203, Road No.5, Indraprastha Industrial Area, Kota, Rajasthan-324005 and accordingly, on 9th March 2010 a Gas Sale Agreement (hereinafter “the Agreement”) was executed between the parties. In terms of the Agreement, the supply was to commence from 1st August 2010 and was to continue till 2025. c. As per the agreement, Minimum Guaranteed Quantity of Gas (hereinafter “MGQ”) had to be purchased every month equivalent to the quantity obtained by multiplying 90% of the daily Nominated Quantity. Moreover, in accordance with a Price Side Letter dated 9th March 2010, the selling price of the Gas for the quarter beginning from January 2010 to March 2010 was decided O.M.P. (COMM) 509/2020 Page 2 of 29 to be Rs. 17.2/- SCM, including taxes. Another Side Letter dated 15th April 2010 was executed between the parties, whereby certain clauses of the Agreement were amended/revised, including the d. The amended Arbitration Clause read as follows:- “If any dispute, difference or question shall at any time hereafter arise between the parties hereto or their respective representatives in respect of the construction of these presents or concerning anything hereunder contained or arising out of these presents or as to the rights, liabilities or duties of the said parties hereunder, which cannot be mutually resolved by the parties, within (60) days after written notice of a dispute by one party to the other party, the same shall be referred to sole Arbitration. After the expiration of sixty (60) days seller shall suggest a panel of three (3) distinguished persons to the Buyer to select any one among them to act as the sole Arbitrator within thirty (30) days. The Buyer shall select sole Arbitrator within thirty (30) days from the receipt of communication suggesting the panel of Arbitrators. In the event of failure of the Buyer to select the sole Arbitrator within thirty (30) days from the receipt of the communication suggesting the panel of Arbitrator, the right of selection of Sole Arbitrator by the Buyer shall stand forfeighted and the seller shall have discretion to proceed with the appointment of sole Arbitrator. The decision of the Arbitrator shall be binding on both the parties. “The Arbitration proceedings shall be held in accordance with the provision of the Arbitration and Conciliation Act, 1996, as amended from time to time. The Arbitrator shall decide by whom and in what proportions the Arbitrator‟s fees as well as cost incurred in Arbitration shall be borne. The Arbitrator may, with the consent of the parties, enlarge the time, O.M.P. (COMM) 509/2020 Page 3 of 29 from time to time, to make and publish award, as the case may be. The venue of Arbitration shall be at e. During the course of the business between the parties, certain disputes arose amongst them, regarding which communications were also made. The issue initially arose regarding the delay in commencement date and thereafter, regarding the modification in the Daily Nominated Quantity, then regarding the invoices and ultimately regarding the payment and the default thereto. f. The respondent, vide its letter dated 7th August 2017, intimated the petitioner that its failure to clear outstanding dues of Rs. 1,29,73,780.01/- within the stipulated period entitled the respondent to terminate the Agreement, as per Clause 15.2 (vi) of the Agreement. Thereafter, the respondent also served a Legal Notice dated 27th March 2017 upon the petitioner invoking the Arbitration Clause of the Agreement and suggesting three names of potential Sole Arbitrators. g. The petitioner was advised not to participate in the arbitration proceedings since the petitioner had already approached the District Court at Kota, Rajasthan against the respondent seeking injunction against the invocation of Letter of Credit. In the month of December 2018, the petitioner was furnished a letter from the Arbitrator informing the date and place of arbitration, where the petitioner did not partake. h. Meanwhile, the Arbitrator initiated, held and concluded the O.M.P. (COMM) 509/2020 Page 4 of 29 arbitration proceedings and made an ex-parte Award dated 21st i. Aggrieved by the said ex-parte Award, the petitioner has approached this Court, seeking a challenge to the same. 3. Learned counsel appearing on behalf of the petitioner submitted that the Award was erroneous and bad in law. There was no attempt to serve the petitioner with a Show Cause Notice or any other pre-emptory notice/order before the learned Arbitrator proceeded ex-parte against the petitioner. It is also submitted that the learned Arbitrator failed to observe the provisions laid down under Section 25 (b) and 25 (c) of the Arbitration Act. According to the said provisions, the learned Arbitrator had the powers to inquire whether there was sufficient cause for absence of the party at the hearing and for the same should have issued a notice before proceeding ex-parte. 4. It is submitted that not only is the Award liable to be set aside for the reason of being proceeded with ex-parte without sufficient notice, but also because the learned Arbitrator has passed an unreasoned order, summarily allowing the claims of the respondent without sufficient cause or elaborate analysis and evaluation. 5. Learned counsel submitted that the Award has been passed without proper appreciation of the terms of the Agreement executed between the parties. Referring to Clause 11.1 (A)(ii) of the Agreement, learned counsel for the petitioner submitted that the respondent was duty bound to raise MGQ obligations, if any, in the second fortnight invoice of each O.M.P. (COMM) 509/2020 Page 5 of 29 month which was not done by the respondent, however, the learned Arbitrator overlooked this aspect. 6. It is submitted that the learned Arbitrator erroneously awarded interest @24% without considering the fact that the long term prime lending rate of State Bank of India in the year 2016 was 14.05%. It is also submitted that the learned Tribunal went beyond the terms of the contract between the parties. Learned counsel relied upon the judgment of State of Rajasthan vs. Nav Bharat Construction Company Ltd., (2006) 1 SCC 86, Bharat Coking Coal Ltd. vs. Annapurna Construction, (2003) 8 SCC 154 to give force to his arguments. 7. It is also submitted that the learned Arbitrator did not consider crucial facts in consonance with the terms of the contract, which led to several erroneous findings. Moreover, the petitioner did not get the opportunity to present its case before the learned Arbitrator. 8. In light of the aforesaid contentions, it is prayed that the impugned order may be set aside. 9. Per Contra, the learned counsel appearing on behalf of the respondent vehemently opposed the instant petition and submitted that although the petitioner has raised the challenge to the Award stating that the learned Arbitrator failed to give reasons for the order, however, has not argued the same in its pleadings. The petitioner is attempting to travel beyond the pleadings. Reliance has been placed upon National Thermal Power Corporation Ltd. vs. Wig Brothers Builders and Engineers Ltd., 2009 SCC OnLine Del 911, to submit that objections must be pleaded in the Section 34 petition for them to be entertained by the Court at the time O.M.P. (COMM) 509/2020 Page 6 of 29 of hearing. 10. It is submitted that there is no error in the impugned Award as the learned Arbitrator has given sufficient reasons while passing the Award. It is submitted that an arbitral award need not be elaborate and is to be read in context of the material referred to in it. 11. It is further submitted that the petitioner has entered into the facts and merits of the case which would amount to re-appreciation of evidence, and this Court does not have to power to enter into detailed evidence at this stage under Section 34 of the Arbitration Act. 12. Learned counsel for the respondent opposed the submission made on behalf of the petitioner that no notice was served with respect to the arbitration proceedings, however, it is also admitted that in December 2018, a notice was served upon the petitioner by the learned Arbitrator. Despite the said notice, the petitioner chose not to attend proceedings and has now approached this Court seeking remedy under Section 34 of the 13. It is submitted that the learned Arbitrator has considered all material facts, circumstances, claims and the material before it while passing the Award which is free from errors and hence, there is no merit in the objections raised on behalf of the petitioner. Therefore, it is submitted that the instant petition is liable to be dismissed. 14. Heard learned counsel for the parties and perused the record, including the impugned Award dated 21st October 2019. O.M.P. (COMM) 509/2020 Page 7 of 29 15. The petitioner has invoked the jurisdiction of this Court under Section 34 of the Arbitration Act which reads as under:- “34. Application for setting aside arbitral award.— (1) Recourse to a Court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and sub-section (3). (2) An arbitral award may be set aside by the Court only if— (a) the party making the application [establishes on the basis of the record of the arbitral tribunal that]— (i) a party was under some incapacity, or (ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or (iii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or (iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration: Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or (v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in O.M.P. (COMM) 509/2020 Page 8 of 29 accordance with this Part; or (i) the subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or (ii) the arbitral award is in conflict with the public policy of India. [Explanation 1.—For the avoidance of any doubt, it is clarified that an award is in conflict with the public policy of (i) the making of the award was induced or affected by fraud or corruption or was in violation of section 75 or section 81; or (ii) it is in contravention with the fundamental policy of Indian law; or (iii) it is in conflict with the most basic notions of morality or justice. Explanation 2.—For the avoidance of doubt, the test as to whether there is a contravention with the fundamental policy of Indian law shall not entail a review on the merits of the 16. The scope of Section 34 of the Arbitration Act is limited yet extensive. The contents of the provision abundantly show that the intention of legislature while enacting the Arbitration and Conciliation Act, as well as while amending the same, was that there should be limited intervention of the Courts in arbitral proceedings, especially after the proceedings have been concluded and an Award thereto has been made by the concerned Arbitrator(s). Therefore, the situations in which a Court can have been clearly laid down under the provision where a Court can interfere. It is an established principle of law that a Court exercising its jurisdiction under Section 34 of the Arbitration Act cannot enter in to the O.M.P. (COMM) 509/2020 Page 9 of 29 merits of the case while appreciating facts and evidence afresh. Therefore, this Court as well, without entering into the merits of the case, shall examine the impugned Award dated 21st October 2019. 17. By way of filing the instant petition, the petitioner has sought indulgence of this Court while challenging the Arbitral Award in question. Upon a perusal of the pleadings and the upon hearing the learned counsel for the parties at length, this Court finds that the controversy between the parties qua the impugned Arbitral Award may be narrowed down to the following issues:- Issue I- Whether sufficient notice was served upon the petitioner regarding arbitration proceedings as well as ex-parte proceedings. Issue II- Whether the Award dated 21st October 2019 was a reasoned Award not inviting the interference from this Court. 18. A preliminary objection raised on behalf of the petitioner is that sufficient notice was not served upon it before the arbitration proceedings were proceeded against him ex-parte. 19. The respondent had furnished the notice dated 27 th March 2018 upon the petitioner, in accordance with Section 21 of the Arbitration Act, suggesting three Arbitrators to adjudicate the disputes between the parties. To the said notice, the petitioner furnished its reply dated 4th May 2018, whereby the respondent was intimated that proceedings under Suit No. 311/2016 before the Civil Court against the respondent were initiated and pending, therefore, the petitioner could not participate in the O.M.P. (COMM) 509/2020 Page 10 of 29 arbitration proceedings. 20. Thereafter, admittedly no communication was made by or on behalf of the respondent intimating the initiation of arbitration proceedings. It was only in the month of December 2018, that the petitioner had received a communication from the Arbitrator concerned, calling upon the petitioner to appear for the arbitration proceedings at the time and place decided. It is the case of the petitioner that since the proceedings against the respondent pertaining to the disputes between the parties were already pending, which was also in the knowledge of the respondent, the arbitration proceedings ought not to have been initiated or continued. 21. The Section 25 of the Arbitration Act, provides for powers of the Arbitrator to terminate the arbitration proceedings, forfeit the right of defence, and proceed ex-parte in the following cases:- “25.Default of a party.— Unless otherwise agreed by the parties, where, without showing sufficient cause,— (a) the claimant fails to communicate his statement of claim in accordance with sub-section (1) of section 23, the arbitral tribunal shall terminate the proceedings; (b) the respondent fails to communicate his statement of defence in accordance with sub-section (1) of section 23, the arbitral tribunal shall continue the proceedings without treating that failure in itself as an admission of the allegations by the claimant [and shall have the discretion to treat the right of the respondent to file such statement of defence as having been forfeited]. (c) a party fails to appear at an oral hearing or to produce documentary evidence, the arbitral tribunal may O.M.P. (COMM) 509/2020 Page 11 of 29 continue the proceedings and make the arbitral award on the evidence before it.” 22. The instant case lies within the ambit of Section 25(c) of the Arbitration Act. Here, the petitioner chose not to appear before the learned Arbitrator. However, the pertinent question to be answered is whether before proceeding ex-parte against the petitioner, was there any procedural requirement, including furnishing of notice etc., to be fulfilled by the learned Arbitrator or the respondent. 23. A bare reading of the provision shows that an Arbitrator may continue the proceedings and make the arbitral award on the evidence before it where a party fails to appear at an oral hearing or to produce documentary evidence without showing sufficient cause, unless otherwise is decided amongst the parties. It is clear, that before taking an action in accordance with Section 25(c) of the Arbitration Act, the Arbitrator is to examine whether the absence of the parties is with or without showing sufficient cause. Therefore, it is evident that an opportunity is to be given to a party to the dispute before the Arbitrator decides to proceed on the basis of the evidence before it. 24. In the landmark judgment of Juggilal Kamlapat v. General Fibre Dealers Ltd., 1954 SCC OnLine Cal 53, the principle of pre-emptory notice for ex-parte proceedings and principle of prejudice being cause in case of such ex-parte proceedings was discussed:- “20. On those facts, the Court held that the holding of the arbitration proceedings on the first day without any notice to the defendants was itself sufficient to invalidate the award and that, throughout, the arbitrators had rushed the hearing of the case without paying any attention to the protests of the O.M.P. (COMM) 509/2020 Page 12 of 29 defendants. Referring to the meeting of the first day, the learned Chief Justice observed that in holding that meeting, the arbitrators did not appear to him to have acted “with that absolute impartiality, with that sense of fairness to both sides”, which was “so essential and so preliminary an element” in cases of that class. The necessity of giving a notice of an intention to proceed ex parte in the event of the non-appearance of a party was not specifically referred to in the judgment, but the learned Chief Justice said that it was a strong thing for the arbitrators to proceed after the letter of the defendants' attorney without giving any further intimation that they intended to proceed. The conduct of the arbitrators, it was held, amounted to misconduct. 25. More or less of the same nature was the case of — „Bhowanidas Ramgobind v. Harsukhdas Balkishendas‟, AIR 1924 Cal 524 (D), decided by Mookerjee and Rankin, JJ. There also, no notice was given by the arbitrators that they would proceed ex parte against any party who would not appear and an award was made against certain parties, who were the sellers, in their absence. The principles laid down in the earlier case of AIR 1920 Cal 853 (C), were reiterated in the judgment. As to the facts, it was pointed out that on a certain date the sellers had intimated that they would not submit to the jurisdiction of the tribunal of arbitrators as in their view, that tribunal could not possibly have any jurisdiction over the subject matter of the dispute. They had not also taken a part in the arbitration proceedings at any stage, those circumstances, the Court held that the sells could not be said to have been prejudiced by the course taken by the arbitrators and, therefore, the award, although made ex parte against them, … not liable to be set aside. 29. If, on the other hand, it appears that the defaulting party had absented himself with a view to preventing justice or defeating the object of the reference, the arbitrator should issue a notice that he intends at a specified time and place to proceed with the reference and that if the party concerned does not attend, he will proceed in his absence. But if after making such a peremptory appointment and issuing such a O.M.P. (COMM) 509/2020 Page 13 of 29 notice, the arbitrator does not in fact proceed ex parte on the day fixed, but fixes another subsequent date, he can-, not proceed ex parte on such subsequent date unless he issues a similar notice in respect of that date as well. 30. If he issues a similar notice and the party concerned does not appear, an award made ex parte, will be in order. But if he does not issue such a notice on the second occasion, but nevertheless proceeds ex parte, the award will be liable to be set aside in spite of a notice of a peremptory hearing having been given in respect of the earlier date, subject, however, to the condition that prejudice was caused to the party against whom the ex parte order was made. But this duty to give notice of an intention to proceed ex parte is not an absolute duty. 31. If it appears from the circumstances of the case that a particular party is determined not to appear before the arbitrators in any event, as when he has openly repudiated either the reference itself or the particular arbitrators and has shown no desire to recant, the arbitrators are not required to issue a notice of an intention to proceed ex parte against such a recusant person and may proceed ex parte and make a valid award without issuing a notice. The better course, however, even in such a case is to issue a notice and give the party concerned a chance to change his mind. 32. The above is what the arbitrators are required on their own part to do. Where the question arises after an ex parte award has, in fact, been made and it appears that no notice of an intention to proceed ex parte had been given, the principle to be applied is that the award will not be upheld, unless it is shown or it appears that the omission to give a notice has not caused any prejudice to the party against whom the ex parte award was made, because he had made it abundantly clear that he would not appear before the arbitrators in any circumstances. When there has been an omission to give a notice, there will, however, always be a presumption that prejudice has been caused. But the presumption can be rebutted by the other party or can be O.M.P. (COMM) 509/2020 Page 14 of 29 seen to be rebutted by circumstances appearing on the face of the record. The principle to be borne in mind in such cases is that the failure to attend is not required to be explained on satisfactory grounds in order to dislodge the ex parte in ward, but the ex parte award requires to be defended by establishing that the omission to issue in notice of an intention to proceed ex parte has not caused any prejudice.” 25. A Co-ordinate Bench of this Court in Lovely Benefit Chit Fund & Finance Pvt. Ltd vs. Shri Puran Dutt Sood & Ors., 1983 SCC OnLine Del 22, made observations on the principle of ex-parte proceedings as “10. The question for decision is whether in this case the arbitrator should have given notice of change of venue and of his intention to proceed ex-parte against the respondents when they had not appeared before him. There is no hard and fast rule of giving notice by the arbitrator of his intention to proceed exparte or to change the venue of arbitration proceedings. But the principles of natural justice require that a person cannot be condemned unheard and he should be afforded a reasonable opportunity of being heard. In the instant case all the respondents are not residents of Delhi but of Ludhiana. The petitioner-claiment has its registered office at New Delhi. The respondents selected their Advocate, briefed him and paid his fee. They can remain confident that their lawyer will look after their interest and as such they have done what was in their power and expect the lawyer to do the needful. The respondents after having appointed the lawyer should not suffer for the in action or deliberate ommission of their counsel. In Rafiq and another v. Munshilal and another, AIR 1931 S.C. 1400 it has been held that a party should not suffer for the inaction of his counsel. In that case appeal was dismissed for default of appellant's counsel. The dismissal was set aside by the Supreme Court. In the instant case, as already stated, the respondents are residents of Ludhiana and therefore the arbitrator before proceeding ex parte ought to have given O.M.P. (COMM) 509/2020 Page 15 of 29 notice of his intention to proceed ex parte against them on a specified date, time and place of arbitration proceedings. In Halsbury's Laws of England, Fourth Edition, Vol. 2 Page 590 page 306 it has been stated as under: “Where the arbitrator proposes to proceed with the reference notwithstanding the absence if one of the parties, it is advisable that he should give that party distinct notice of his intention to do so. If reasonable excuse for not attending the appointment can be shown, the court will set aside an award made by an arbitrator who has proceeded ex parte.” In Russell on Arbitration, Nineteenth Edition page 271 the following passage appears. “Notice of intention to proceed ex parte: In general, the arbitrator is not justified in proceeding ex parte without giving the party absenting himself due notice. It is advisable to give the notice in writing to each of the parties or their solicitors. It should express the arbitrator's intention clearly, otherwise the award may be set aside. An ordinary appointment for a meeting with the addition of the word” “Peremptory” marked on it is, however, sufficient. If the arbitrator declines to proceed on the first failure to attend a peremptory appointment, and gives another appointment, he is not authorised to proceed ex-parte at the second meeting, unless the appointment for it was also marked “peremptory” or contained a similar intimation of his intention.” In Bhowanidas Ramgobind v. Harasukhdas Balkishendas, AIR 1924 Calcutta 524 a Division Bench has held that arbitrators should give notice of their intention to proceed ex-parte if one of the parties should not appear but their award is valid if the complainant has not been prejudiced in any manner by the failure of the arbitrators to give such notice. In Udaichand Panna Lall v. Debibux Jewanram AIR 1920 Calcutta 553 it has been observed that before an O.M.P. (COMM) 509/2020 Page 16 of 29 arbitrator proceeds ex-parte he should give notice in writing to each of the parties, otherwise the award may be liable to be set aside. In Bratapsingh v. Kishanprasad and Co. Ltd. AIR 1932 Bombay 68 it has been observed that even when an arbitrator considers that the time and place fixed by him for the meeting are reasonable and if after service of notice one of the parties to the arbitration fails to attend before him he is entitled to proceed with the arbitration ex-parte. But it is still advisable for him though it is not compulsory, that he should give that party notice of his intention to do so. Similar observation were made in Ariyur Mohammad Habeebur Rahman and others v. Aasuri Varama (died) and another AIR 1974 Andhra Pradesh 113(118) and Prem Nath L. Harsaran Dass and another v. Om Parkash L. Ram Kishen Dass Kamlapat v. General Fibre Dealers Ltd. AIR 1955 Calcutta 354 the following principles have been alaid down to determine whether the failure of the arbitrator to give notice of his intention to proceed ex parte amounts to misconduct. 1. If a party to an arbitration agreement fails to appear at one of the sittings, the arbitrator cannot or, at least, ought not to, proceed ex parte against him at that sitting. Where in such a case it does not appear that the non appearance was anything but accidental or causual, the arbitrator ought ordinarily to proceed in the ordinary way, fixing another date of hearing and awaiting the future behaviour of the defaulting party. 2. If, on the other hand, it appears that the defaulting party had absented himself with a view to preventing justice or defeating the object of the reference, the arbitrator should issue a notice that he intends at a specified time and place to proceed with the reference and that if the party concerned does not attend, he will proceed in his absence. But if after making such a peremptory appointment and issuing such a notice, the arbitrator does not in fact proceed ex parte on the day O.M.P. (COMM) 509/2020 Page 17 of 29 fixed, but fixes another subsequent date, he cannot proceed ex parte on such subsequent date unless he issues a similar notice in respect of that date as well. 3. If he issues a similar notice and the party concerned does not appear, an award made ex parte, will be in order. But if he does not issue such a notice on the second occasion, but nevertheless proceeds ex parte, the award will be liable to be set aside in spite of a notice of a peremptory hearing having been given in respect of the earlier date, subject, however, to the condition that prejudice was caused to the party against whom the ex parte order was made. But this duty to give notice of an intention to proceed ex parte is not an absolute duty. 4. If it appears from the circumstances of the case that a particular party is determined not to appear before the arbitrators in any event, as when he has openly repudiated either the reference itself or the particular arbitrators and has shown no desire to recent the arbitrators are not required to issue a notice of an intention to proceed ex parte against such a re-sant person and may proceed ex parte and make a valid award without issuing a notice. The better course, however, even in such a case is to issue a notice and give the party concerned a change to change his mind. 5. Where the question arises after an ex parte award has, in fact, been made an it appears that no notice of an intention to proceed ex parte had been given, the principle to be applied is that the award will not be unheld, unless it is shown or it appears that the omission to give a notice has not caused any prejudice to the party against whom the ex parte award was made, because he had made it abundantly clear that he would not appear before the arbitrators in any circumstances. When there has been an omission to give a notice, there will, however, always be a presumption that prejudice has been caused. But the O.M.P. (COMM) 509/2020 Page 18 of 29 presumption can be rebutted by the other party or can be borne in mind in such cases is that the appearing on the face of the record. The principle to be borne in mind in such cases is that the failure to attend is not required to be explained on satisfactory grounds in order to dislodge the ex parte award, but the ex parte award requires to be defended by establishing that the omission to issue a notice of an intention to proceed ex parte has not caused any prejudice.” In Mt. Amir Begam v. Syed Badr-ud-din Husait and others, AIR 1914 Privy Council 105 it has been observed that if irregularities in procedure can be proved which would amount to no proper hearing of the matters in dispute, there would be misconduct sufficient to vitiate the award without any imputation on the honesty or partiality of the arbitrator. Similar observations were made in Sadu Singh and others v. Ramdeo Singh, AIR 1943 Patna 318. 11. From these authorities, it is apparent that an arbitrator ought not to proceed ex parte against a party if he has failed to appear at one of the sittings. The arbitrator should fix another date for hearing and give notice to the defaulting party, of his intention to proceed ex parte on a specified date time and place. Even after notice if the defaulting party does not take part in the proceedings the arbitrator may proceed in his absence. 12. When an ex parte award has been made the principle to be applied is that the award will not be upheld unless it is apparent that the failure to give notice of intention to proceed ex parte has not caused any prejudice to the party against whom the ex parte award was made.” 26. The Calcutta High Court in Magma Leasing Limited vs. Gujarat Composite Limited, 2006 SCC OnLine Cal 235, entertaining the question whether the Arbitrator therein was right to proceed ex-parte due to non-appearance of the party on one hearing observed as under, while remitting the case back to the arbitrator:- O.M.P. (COMM) 509/2020 Page 19 of 29 “10. Now coming to the merit of the matter it appears to us that learned first Court has held upon applying his mind that opportunity of being heard was not given and also that no reason was given by the learned Arbitrator. We shall deal with the decision of the first Court regarding giving of opportunity. It appears from the records that learned Arbitrator at one point of time proceeded with this matter without any evidence being adduced. And we think this procedure is not illegal. 11. From the records we find the notices were given upon both the parties on each and every occasion. The respondent appeared before the learned Arbitrator and participated in the proceedings either effectively making submission or obtaining adjournment. However, on the last occasion the respondent failed to appear and on that date itself the learned Arbitrator proceeded with finally and concluded the hearing and thereafter award was passed. 13. In our opinion the aforesaid provision is enabling provision and ample discretion has been left with learned tribunal with the word “may”. It is settled position of law that power of discretion is exercised with restraint and when there other option left, in particular in judicial and quasi- judicial proceedings. It does not mean that the learned Arbitrator should exercise this extreme power in case of one default. We are not for a single moment supporting any lackadaisical litigant to take refuge to the aforesaid discretionary provision. Discretion is always a judicial if not judicious. Judicious action demands in a case of this nature that on one hand unnecessary latitude of indulgence should not be given, and on the other hand the learned Arbitrator should not proceed hastily. There are decisions of this Court while considering and discussing the procedure of arbitration proceedings held under repealed Arbitration Act, 1940 wherein Court formulated concept of serving peremptory notice of hearing so that a litigant may be warned if he defaults in future, final act may be performed by the learned Arbitrator. In this connection a decision of Division Bench of this Court reported in AIR 1955 Cal 354 O.M.P. (COMM) 509/2020 Page 20 of 29 may be referred to. 4. Here factually the respondent defaulted only on one day and we think the learned Arbitrator should not have exercised discretionary power while concluding the hearing. 15. We think another chance should have been given because in the record there is no successive failure on the part of the respondent, although adjournment was sought for, true. But in all fairness a peremptory notice should have been given. Under those circumstances, we feel the reasoning of the first Court is justified. However, the aforesaid elaborate discussion was not recorded by His Lordship. 18. Learned Arbitrator shall proceed on day-to-day basis and shall give chance of hearing to the respondent on merit and he shall proceed from the stage where it was left by him and will not start de novo…” 27. Therefore, it is abundantly clear that, though not stipulated under the Act in clear terms, it has always been preferred and encouraged that an Arbitrator provides a preemptory notice to any party against whom it is seeking to proceed ex-parte. There is no doubt to the fact that in the instant case the learned Arbitrator did not communicate the facts of proceedings being initiated, continued and proceeded with ex-parte to the petitioner, which it ought to have at some point of time before making the Award. Strong observations have been made on this question by the Courts and hence, this Court also submits to the observations as quoted in the foregoing paragraphs. The action on part of the learned Arbitrator was erroneous and hence, warrants interference from this Court. 28. Another aspect to be seen it that as per the reply dated 4th May 2018, the respondent also had the knowledge of pending proceedings before the Civil Court at Kota, Rajasthan, yet after over six months, the arbitration proceedings were initiated, continued and concluded without O.M.P. (COMM) 509/2020 Page 21 of 29 the petitioner. Therefore, this Court finds that the Suit pertaining to the same issues between the parties being pending was in itself sufficient cause for learned Arbitrator not to proceed ex-parte against the petitioner after only one intimation and opportunity to appear for arbitration proceedings. 29. To evaluate second issue, it is to be seen whether an Arbitrator is to pass a well reasoned order while passing an award, if yes, whether in the instant case the impugned Award could said to have been a reasoned award. 30. At the very outset, this Court deems it fit to refer to Section 31(3) of the Arbitration Act, which is reproduced hereunder:- “31. Form and contents of arbitral award.- (3) The arbitral award shall state the reasons upon which it is based, unless— (a) the parties have agreed that no reasons are to be (b) the award is an arbitral award on agreed terms under Section 30.” 31. It is apparent that one of the essential requirements to be met while making an award includes that the reasons for passing the award must be stated. 32. The Hon’ble Supreme Court in Dyna Technologies (P) Ltd. vs. Crompton Greaves Ltd., (2019) 20 SCC 1, while determining a similar question held as under:- “26. Having established the basic jurisprudence behind O.M.P. (COMM) 509/2020 Page 22 of 29 Section 34 of the Arbitration Act, we must focus on the analysis of the case. The primary contention of the learned counsel appearing on behalf of the appellant is that the award by the learned Tribunal was perverse for want of reasons. The necessity of providing reasons has been provided under Section 31 of the Arbitration Act, which “31. Form and contents of arbitral award.—(1)-(2) (3) The arbitral award shall state the reasons upon which it is based, unless— (a) the parties have agreed that no reasons are to be (b) the award is an arbitral award on agreed terms under Section 30.” 27. Under the Uncitral Model Law the aforesaid provision is provided as under: “31. (2) The award shall state the reasons upon which it is based, unless the parties have agreed that no reasons are to be given or the award is an award on agreed terms under Article 30.” 28. Similar to the position under the Model Law, India also adopts a default rule to provide for reasons unless the parties agree otherwise. As with most countries like England, America and Model Law, Indian law recognises enforcement of the reasonless award if it has been so agreed between the parties. 35. When we consider the requirement of a reasoned order, three characteristics of a reasoned order can be fathomed. They are: proper, intelligible and adequate. If the reasonings in the order are improper, they reveal a flaw in the decision- making process. If the challenge to an award is based on impropriety or perversity in the reasoning, then it can be challenged strictly on the grounds provided under Section 34 of the Arbitration Act. If the challenge to an award is based O.M.P. (COMM) 509/2020 Page 23 of 29 on the ground that the same is unintelligible, the same would be equivalent of providing no reasons at all. Coming to the last aspect concerning the challenge on adequacy of reasons, the Court while exercising jurisdiction under Section 34 has to adjudicate the validity of such an award based on the degree of particularity of reasoning required having regard to the nature of issues falling for consideration. The degree of particularity cannot be stated in a precise manner as the same would depend on the complexity of the issue. Even if the Court comes to a conclusion that there were gaps in the reasoning for the conclusions reached by the Tribunal, the Court needs to have regard to the documents submitted by the parties and the contentions raised before the Tribunal so that awards with inadequate reasons are not set aside in casual and cavalier manner. On the other hand, ordinarily unintelligible awards are to be set aside, subject to party autonomy to do away with the reasoned award. Therefore, the courts are required to be careful while distinguishing between inadequacy of reasons in an award and unintelligible awards. 37. In case of absence of reasoning the utility has been provided under Section 34(4) of the Arbitration Act to cure such defects. When there is complete perversity in the reasoning then only it can be challenged under the provisions of Section 34 of the Arbitration Act. The power vested under Section 34(4) of the Arbitration Act to cure defects can be utilised in cases where the arbitral award does not provide any reasoning or if the award has some gap in the reasoning or otherwise and that can be cured so as to avoid a challenge based on the aforesaid curable defects under Section 34 of the Arbitration Act. However, in this case such remand to the Tribunal would not be beneficial as this case has taken more than 25 years for its adjudication. It is in this state of affairs that we lament that the purpose of arbitration as an effective and expeditious forum itself stands effaced. 42. From the facts, we can only state that from a perusal of the award, in the facts and circumstances of the case, it has been rendered without reasons. However, the muddled and O.M.P. (COMM) 509/2020 Page 24 of 29 confused form of the award has invited the High Court to state that the arbitrator has merely restated the contentions of both parties. From a perusal of the award, the inadequate reasoning and basing the award on the approval of the respondent herein cannot be stated to be appropriate considering the complexity of the issue involved herein, and accordingly the award is unintelligible and cannot be sustained.” 33. Further, Som Datt Builders Ltd. vs. State of Kerala, (2009) 10 SCC 259, an elaborate finding regarding reasoned arbitral awards was made by the Hon’ble Supreme Court, which is reproduced hereunder:- “20. Section 31(3) mandates that the arbitral award shall state the reasons upon which it is based, unless—(a) the parties have agreed that no reasons are to be given, or (b) the award is an arbitral award under Section 30. ….. By legislative mandate, it is now essential for the Arbitral Tribunal to give reasons in support of the award. It is pertinent to notice here that the 1996 Act is based on UNCITRAL Model Law which has a provision of stating the reasons upon which the award is based. 21. In Union of India v. Mohan Lal Capoor [(1973) 2 SCC 836: 1974 SCC (L&S) 5] this Court said: (SCC p. 854, para “28. … Reasons are the links between the materials on which certain conclusions are based and the actual conclusions.” 22. In Woolcombers of India Ltd. v. Workers' Union [(1974) 3 SCC 318 : 1973 SCC (L&S) 551 : AIR 1973 SC 2758] this Court stated: (SCC pp. 320-21, para 5) “5. … The giving of reasons in support of their conclusions by judicial and quasijudicial authorities when exercising initial jurisdiction is essential for various reasons. First, it is calculated to prevent unconscious unfairness or arbitrariness in reaching the conclusions. The very search O.M.P. (COMM) 509/2020 Page 25 of 29 for reasons will put the authority on the alert and minimise the chances of unconscious infiltration of personal bias or unfairness in the conclusion. The authority will adduce reasons which will be regarded as fair and legitimate by a reasonable man and will discard irrelevant or extraneous considerations.” 23. In S.N. Mukherjee v. Union of India [(1990) 4 SCC 594 : 445] the Constitution Bench held that recording of reasons “(i) guarantee consideration by the authority; (ii) introduce clarity in the decisions; and (iii) minimise chances of arbitrariness in decision-making.” (SCC p. 25. The requirement of reasons in support of the award under Section 31(3) is not an empty formality. It guarantees fair and legitimate consideration of the controversy by the Arbitral Tribunal. It is true that the Arbitral Tribunal is not expected to write a judgment like a court nor is it expected to give elaborate and detailed reasons in support of its finding(s) but mere noticing the submissions of the parties or reference to documents is no substitute for reasons which the Arbitral Tribunal is obliged to give. Howsoever brief these may be, reasons must be indicated in the award as that would reflect the thought process leading to a particular conclusion. To satisfy the requirement of Section 31(3), the reasons must be stated by the Arbitral Tribunal upon which the award is based; want of reasons would make such award legally flawed.” 34. Therefore, it is evident that the Hon’ble Supreme Court has reiterated the significance of passing a reasoned award. As per the interpretation as aforesaid, the award is not just to be reasoned by such reasons, which give effect to the findings and the final award, must be proper, intelligible and adequate. The recording of reasons and the O.M.P. (COMM) 509/2020 Page 26 of 29 findings thereto is also a testament to the fact that the concerned arbitrator has applied his mind while passing the award and deciding claims in favour of either or both the parties. An award without reasons and findings is mere reiteration of the claims of the parties. Hence, the passing of a reasoned award laying down the grounds and findings was imperative for the learned Arbitrator. 35. The question which now remains is whether the impugned Award dated 21st October 2019 was reasoned. The relevant portion of the Award whereby the claims were decided in the favour of the respondent is reproduced herein:- “9. Having considered the materials submitted by the claimant, I am satisfied that the claimant has proved its claim against the respondent for the amount due from the respondent at Rs.1,75,86,533.78. 12. In view of this, the claimant is entitled to interest at the rate of 24% P.A. on the sum of Rs. 1,75,86,533.78 w.e.f. 01.04.2019 till the date of payment. 13. Regarding the costs, I direct the respondent to pay the claimant a sum of Rs. 1,76,962/-. 14. I place on record all assistance rendered by Mr. Deepayan Mandal Ld. Counsel for the Claimant on the projection of the case explaining the details of the matter in clear terms. I. Directing the respondent to pay Rs. 1,75,86,533.78 II. Directing the respondent to pay Interest at the rate of 24% P.A on the sum of Rs. 1,75,86,533.78 w.e.f. 01.04.2019 till the date of payment.” 36. A perusal of the order reveals that the same is a mere four page order reiterating the claims of the respondent and making the aforesaid O.M.P. (COMM) 509/2020 Page 27 of 29 summary findings while accepting the said claims. The order does not reveal appreciation of evidence or material or record and also does not lay down the grounds taken for the decision made. The claims were decided in the favour of the respondent as they were claimed and pleaded before the learned Arbitrator. 37. The learned Arbitrator need not have given elaborate, comprehensive or extensive Award but the mere recording of reasons for the findings made was an indispensable requirement to be met. Fulfilling the requirements under Section 31(3) of the Arbitration Act, is not a mere formality, but this provision makes way for a fair, reasonable and equitable opportunity to have the objective knowledge of the reasons why a claim is not decided in their favour. Accordingly, this Court finds that the principles laid down by the Hon’ble Supreme Court favour the case of the petitioner qua the requirement of passing a reasoned order being indispensable. 38. In light of the facts, circumstances, contentions raised in the pleadings, argument made on behalf of the parties, the observations of the Hon’ble Supreme Court and other High Courts of the country, the provisions of the Arbitration Act and the discussion in the foregoing paragraphs, this Court finds merit in the petition and is inclined to allow the same. 39. The Arbitral Award dated 21st October 2019 was passed without proper communication to the petitioner, before proceeding ex-parte, and without affording reasonable opportunity to present its case. The learned O.M.P. (COMM) 509/2020 Page 28 of 29 Arbitrator did not make adequate efforts to be satisfied that sufficient cause was to be shown for non-appearance before proceeding ex-parte against the petitioner. Further, it was incumbent for the learned Arbitrator to furnish reasons for his findings in favour of the respondent. 40. Accordingly, the instant petition and the prayers therein are allowed and ex-parte Arbitral Award dated 21st October 2019 is set aside for the reasons stated as above. 41. Pending applications stand disposed of, in light of the observations made above. 42. The order be uploaded on the website forthwith. Click here to check corrigendum, if any O.M.P. (COMM) 509/2020 Page 29 of 29
The Delhi High Court has overturned a decision made by an arbitrator because the arbitrator did not properly tell one side about the hearing before making a decision without them. The court also found that the arbitrator did not try hard enough to find out if the missing party had a good reason for not showing up. Justice Chandra Dhari Singh's court decided that under the Arbitration and Conciliation Act of 1996, it's always best for an arbitrator to send a warning notice before moving ahead without one party. This is true even if the Act does not clearly state that such a notice is required. The Court also pointed out that a separate lawsuit about the same problem was already ongoing between the two sides. This ongoing lawsuit was a good enough reason for the arbitrator not to decide the case without the missing party, especially since they only got one notice to show up. Mittal Pigments Pvt Ltd and GAIL Gas Ltd had signed an agreement to sell gas. When disagreements came up, GAIL used a part of the agreement that said arguments should be settled by an arbitrator. Because of this, an arbitrator made a decision favoring GAIL without Mittal Pigments being present. Mittal Pigments, the company that lost the arbitration, challenged this decision. They filed a formal request with the Delhi High Court under Section 34 of the A&C Act to overturn the award. Mittal Pigments told the High Court that they did not get enough warning before the arbitrator made a decision without them. They argued that the arbitrator did not try to send them any kind of warning notice or order before moving forward without their presence. Mittal Pigments also argued that the arbitrator's decision did not explain why it favored GAIL. They said the arbitrator quickly approved GAIL's demands without good reason or a careful review. Looking at the details of the case, the judge noted that Mittal Pigments had told GAIL, in its response to the arbitration notice, that it had started a lawsuit against GAIL in a court in Rajasthan. Because of this, Mittal Pigments could not take part in the arbitration. The Court noticed that Mittal Pigments had received only one notice from the arbitrator, asking it to attend the arbitration, before the arbitrator made a decision without them. Mittal Pigments argued to the High Court that since a lawsuit about the same problem was already ongoing against GAIL in the District Court, and GAIL knew about it, the arbitration should not have been started or continued. The Court noted that Section 25 of the A&C Act allows an arbitrator to stop arbitration, take away a party's right to defend itself, and make a decision without one party in certain situations. Specifically, Section 25(c) states that an arbitrator can continue and make a decision based on the evidence they have if a party does not show up for a meeting or provide documents, as long as they don't have a good reason for their absence, unless the parties have agreed otherwise. The judge noted that because Mittal Pigments decided not to appear before the arbitrator, this case seemed to fit the rules of Section 25(c) of the A&C Act. However, the Court added that before an arbitrator acts under Section 25(c), they must check if the missing party has a good reason for not being there. So, the Court decided it is clear that a party must be given a chance to explain their absence before the arbitrator makes a decision without them, based on the evidence at hand. The judge concluded that it is very clear that the A&C Act strongly suggests an arbitrator should send a warning notice to any party they plan to make a decision against without them. This is true even if the Act does not clearly state this as a requirement. The Court also noted another point: according to a reply from May 4, 2018, GAIL knew that a lawsuit was already ongoing in a court in Rajasthan. Still, more than six months later, the arbitration started, continued, and finished without Mittal Pigments. The judge further said that the ongoing lawsuit about the same problems between the parties was, by itself, a good enough reason for the arbitrator not to make a decision without Mittal Pigments, especially after only sending them one notice and one chance to appear. The Court also pointed out that it is absolutely necessary for the arbitrator to write down the reasons for the decisions made in their ruling. After looking closely at the arbitrator's decision that favored GAIL, the Court said: "The decision is only four pages long. It just repeated what GAIL asked for and quickly agreed to those demands. The order does not show that the arbitrator carefully reviewed any evidence or documents. It also does not explain the reasons for the decision. GAIL's demands were simply approved as they were presented to the arbitrator." The judge therefore decided: "The arbitrator's decision from October 21, 2019, was made without properly communicating with Mittal Pigments before deciding without them. It also did not give Mittal Pigments a fair chance to present its side. The arbitrator did not try hard enough to make sure there was no good reason for Mittal Pigments not showing up before proceeding without them. Furthermore, the arbitrator had a duty to explain the reasons for his decisions that favored GAIL." Because of all this, the Court approved Mittal Pigments' request and cancelled the arbitrator's decision that was made without them.
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Case :- HABEAS CORPUS WRIT PETITION No. - 716 of 2020 Counsel for Respondent :- G.A.,Ajay Kumar Singh,Rajeev Kumar 1. Case is taken up through video conferencing. 2. This habeas corpus writ petition has been filed by seeking following i. Issue a writ order or direction in the nature of mandamus directing and commanding the respondent no.2 and 3 to appear personally before this Hon'ble Court and to produce corpus child namely Shradha Kannaujia (Minor) from the custody of the respondent no.4 to 6. ii. Issue a writ order or direction in the nature of mandamus directing the respondents to handover in the custody of minor child (corpus) to her mother/petitioner no.2 and ensure the life of corpus (minor child). iii. Issue such other further writ order or direction which this Hon'ble Court may deem fit and proper in the nature and circumstances of the present case. iv. Award the costs of the petition to the petitioners. 3. Heard learned counsel for the petitioners, learned counsel for the private respondents and learned A.G.A. for the State. 4. It has been argued by the learned counsel for the petitioners that petitioner No.2 is mother of corpus/minor girl, aged four years. The marriage of petitioner No.2 with respondent No.4 has taken place in the year 2014 and they were blessed with a girl child on 18.11.2016. Learned counsel argued that petitioner No.2 was harassed by her husband and other private respondents and on 26.09.2020 they have driven her out from the and her minor girl (corpus) was snatched by the private respondents. It was submitted that the respondent No.4 is not treating the petitioner No.1well and that she has been illegally detained by the respondent No. 4 to 6. In this connection the petitioner No.2 has approached police authorities but of no avail. No information is being given to the petitioner No.2 regarding petitioner No.1. It was submitted that the custody of petitioner No.1 be handed over to the petitioner No.2. 5. Learned counsel for the private respondents has opposed. 6. Perusal of record shows that in pursuance to earlier order, the petitioner No.1/ corpus was produced before this Court by the respondent No.4, however as she is a minor child of four years age, thus, it was found difficult to ascertain her wishes. The petitioner No.2 is mother of petitioner No.1 and respondent No.4 is her father. It appears that there has been some matrimonial dispute between petitioner No.2 and respondent No.4 and that a petition under Section 13B Hindu Marriage Act, 1955 for divorce has already been filed. 7. It is well settled that writ of habeas corpus is a prerogative writ and an extraordinary remedy. The object and scope of a writ of habeas corpus in the context of a claim relating to custody of a minor child fell for consideration in case of Sayed Saleemuddin vs. Dr. Rukhsana and others (2001)5 SCC 247 and it was held that in a habeas corpus petition seeking transfer of custody of a child from one parent to the other, the principal consideration for the court would be to ascertain whether the custody of the child can be said to be unlawful or illegal and whether the welfare of the child requires that the present custody should be changed. In said case "11. ...it is clear that in an application seeking a writ of Habeas Corpus for custody of minor children the principal consideration for the Court is to ascertain whether the custody of the children can be said to be unlawful or illegal and whether the welfare of the children requires that present custody should be changed and the children should be left in care and custody of somebody else. The principle is well settled that in a matter of custody of a child the welfare of the child is of paramount consideration of the Court..." Delhi) and another 2017 8 SCC 454, it was held that the principal duty of the court in such matters is to ascertain whether the custody of the child is unlawful and illegal and whether the welfare of the child requires that his present custody should be changed and the child be handed over to the care and custody of any other person. The relevant observations made in "44. The present appeal emanates from a petition seeking a writ of habeas corpus for the production and custody of a minor child. This Court in Kanu Sanyal v. District Magistrate, Darjeeling, (1973) 2 SCC 674, has held that habeas corpus was essentially a procedural writ dealing with machinery of justice. The object underlying the writ was to secure the release of a person who is illegally deprived of his liberty. The writ of habeas corpus is a command addressed to the person who is alleged to have another in unlawful custody, requiring him to produce the body of such person before the court. On production of the person before the court, the circumstances in which the custody of the person concerned has been detained can be inquired into by the court and upon due inquiry into the alleged unlawful restraint pass appropriate direction as may be deemed just and proper. The High Court in such proceedings conducts an inquiry for immediate determination of the right of the person's freedom and his release when the detention is found to be unlawful. 45. In a petition for issuance of a writ of habeas corpus in relation to the custody of a minor child, this Court in Sayed Saleemuddin v. Rukhsana, (2001) 5 SCC 247, has held that the principal duty of the court is to ascertain whether the custody of child is unlawful or illegal and whether the welfare of the child requires that his present custody should be changed and the child be handed over to the care and custody of any other person. While doing so, the paramount consideration must be about the welfare of the child. In Elizabeth Dinshaw v. Arvand M. Dinshaw, (1987) 1 SCC 42, it is held that in such cases the matter must be decided not by reference to the legal rights of the parties but on the sole and predominant criterion of what would best serve the interests and welfare of the minor. The role of the High Court in examining the cases of custody of a minor is on the touchstone of principle of parens patriae jurisdiction, as the minor is within the jurisdiction of the Court [see Paul Mohinder Gahun Vs. State (NCT of Delhi), 2004 SCC OnLine Del 699, relied upon by the appellant]. It is not necessary to multiply the authorities on this proposition. 46. The High Court while dealing with the petition for issuance of a writ of habeas corpus concerning a minor child, in a given case, may direct return of the child or decline to change the custody of the child keeping in mind all the attending facts and circumstances including the settled legal position referred to above. Once again, we may hasten to add that the decision of the court, in each case, must depend on the totality of the facts and circumstances of the case brought before it whilst considering the welfare of the child which is of paramount consideration. The order of the foreign court must yield to the welfare of the child. Further, the remedy of writ of habeas corpus cannot be used for mere enforcement of the directions given by the foreign court against a person within its jurisdiction and convert that jurisdiction into that of an executing court. Indubitably, the writ petitioner can take recourse to such other remedy as may be permissible in law for enforcement of the order passed by the foreign court or to resort to any other proceedings as may be permissible in law before the Indian Court for the custody of the child, if so advised. 47. In a habeas corpus petition as aforesaid, the High Court must examine at the threshold whether the minor is in lawful or unlawful custody of another person (private respondent named in the writ petition). For considering that issue, in a case such as the present one, it is enough to note that the private respondent was none other than the natural guardian of the minor being her biological mother. Once that fact is ascertained, it can be presumed that the custody of the minor with his/her mother is lawful. In such a case, only in exceptionable situation, the custody of the minor (girl child) may be ordered to be taken away from her mother for being given to any other person including the husband (father of the child), in exercise of writ jurisdiction. Instead, the other parent can be asked to resort to a substantive prescribed remedy for getting custody of the child." 9. The issue of maintainability of a habeas corpus petition under Article 226 of the Constitution of India in matters of custody of minor was also considered in case of Tejaswini Gaud and others vs. Shekhar Jagdish Prasad Tewari and others (2019) 7 SCC 42, and it was held that the petition would be maintainable where detention by parents or others is found to be illegal and without any authority of law and the extraordinary remedy of a prerogative writ of habeas corpus can be availed in exceptional cases where ordinary remedy provided by the law is either unavailable or ineffective. The observations made in the judgment in this "14. Writ of habeas corpus is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from an illegal or improper detention. The writ also extends its influence to restore the custody of a minor to his guardian when wrongfully deprived of it. The detention of a minor by a person who is not entitled to his legal custody is treated as equivalent to illegal detention for the purpose of granting writ, directing custody of the minor child. For restoration of the custody of a minor from a person who according to the personal law, is not his legal or natural guardian, in appropriate cases, the writ court has jurisdiction. 19. Habeas corpus proceedings is not to justify or examine the legality of the custody. Habeas corpus proceedings is a medium through which the custody of the child is addressed to the discretion of the court. Habeas corpus is a prerogative writ which is an extraordinary remedy and the writ is issued where in the circumstances of the particular case, ordinary remedy provided by the law is either not available or is ineffective; otherwise a writ will not be issued. In child custody matters, the power of the High Court in granting the writ is qualified only in cases where the detention of a minor by a person who is not entitled to his legal custody. In view of the pronouncement on the issue in question by the Supreme Court and the High Courts, in our view, in child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of 20. In child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be. In cases arising out of the proceedings under the Guardians and Wards Act, the jurisdiction of the court is determined by whether the minor ordinarily resides within the area on which the court exercises such jurisdiction. There are significant differences between the enquiry under the Guardians and Wards Act and the exercise of powers by a writ court which is of summary in nature. What is important is the welfare of the child. In the writ court, rights are determined only on the basis of affidavits. Where the court is of the view that a detailed enquiry is required, the court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the civil court. It is only in exceptional cases, the rights of the parties to the custody of the minor will be determined in exercise of extraordinary jurisdiction on a petition for 10. What emerges from above stated authorities is that the exercise of the extraordinary jurisdiction for issuance of a writ of habeas corpus would, therefore, be considered to be dependent on the jurisdictional fact, where the applicant establishes a prima facie case that the detention is unlawful. It is only where the aforementioned jurisdictional fact is established that the applicant would become entitled to the writ. In an application seeking a writ of habeas corpus for custody of minor child, as is the case herein, the principal consideration for the court would be to ascertain whether the custody of the child can be said to be unlawful and illegal and whether his/her welfare requires that the present custody should be changed and the child should be handed over in the care and custody of someone else. Proceedings in the of habeas corpus may not be used to examine the question of the custody of a child. The prerogative writ of habeas corpus, is in the nature of extraordinary remedy and the writ is issued, where in the circumstances of a particular case, the ordinary remedy provided under law is either not available or is ineffective. The power of the High Court, in granting a writ, in child custody matters, may be invoked only in cases where the legal custody. 11. In the instant case it is not disputed that the petitioner No. 1 is aged about four years and she is stated to be under the care and custody of her father / respondent No.4, who living with his parents (respondent No. 5 & 6). It is also admitted position that the petitioner No. 2 and the respondent No. 4 are living separately, as the petitioner No. 2 has alleged that she was driven out from the matrimonial home. It is also clear from the averments of the petition that a petition under section 13-B Hindu Marriage Act has already been filed in the court. Thus, the matter relating to custody of child during the pendency of the proceedings under the Hindu Marriage Act, 1955 HMA is governed in terms of the provisions contained under Section 26 thereof. The aforesaid section applies to "any proceeding" under the HMA and it gives power to the court to make provisions in regard to: (i) custody, (ii) maintenance, and (iii) education of minor children. For this purpose the court may make such provisions in the decree as it may deem just and proper and it may also pass interim orders during the pendency of the proceedings and all such orders even after passing of the decree. Section 26 of the Hindu Marriage Act, 1955 provides for custody of children and declares that in any proceeding under the said Act, the Court could make, from time to time, such interim orders as it might deem just and proper with respect to custody, maintenance and education of minor children, consistently with their wishes, wherever possible. As observed earlier, a petition for a writ of habeas corpus concerning a minor child, the Court, in a given case, may direct to change the custody of the child or decline the same keeping in view the attending facts and circumstances. For the said purpose the main consideration is whether the custody of the minor with the private respondent, who is named in the petition, is lawful or unlawful. In the present case, the private respondents are none other than the biological father and grand parents of the minor child. This being the position, it can not be said that the custody of the child with private respondents is unlawful. However, it is open to the mother / petitioner No. 2 to take resort to the substantive statutory remedy in respect of his claim regarding custody of the child. As stated earlier, in matter of custody of a child, a writ of habeas corpus would be entertainable, where it is established that the detention of the minor child by the parent or others is illegal and without authority of law. In a writ court, where rights are determined on the basis of affidavits and that in a case where the court is of a view that a detailed enquiry would be required, it may decline to exercise the extraordinary jurisdiction and direct the parties to approach the appropriate forum. 12. Considering the facts of the matter as well as the aforesaid position of law, it is apparent that the remedy in such matters would lie under the Hindu Minority and Guardianship Act, 1956 or Guardians and Wards Act, 1890 GWA, as the case may be. In view of aforesaid, this Court is not inclined to exercise its extraordinary jurisdiction to entertain the present petition seeking a writ of habeas 13. The petition lacks merit and it is hereby dismissed.
The Allahabad High Court has explained that it can only use its special power to issue a "writ of Habeas Corpus" in child custody cases if a child is being held by someone who does not have the legal right to keep them. Because of this rule, a court led by Justice Raj Beer Singh rejected a mother's request for a Habeas Corpus order. She wanted her 5-year-old daughter back from her husband, who is the child's father. The Court noted that the correct way to handle such cases is through other laws, like the Hindu Minority and Guardianship Act of 1956 or the Guardians and Wards Act of 1890. The case in brief The mother, who made the complaint, claimed her husband and other people were bothering her. She said that in September 2020, they forced her out of her home and took her young daughter. After this, she went to the High Court with her Habeas Corpus request. She argued that her husband was not treating their daughter well and that the others were holding the child illegally. Because of this, she asked the Court to bring her daughter before them. Court's order The Court first looked at decisions from the Supreme Court, which is the highest court. It stated that a Habeas Corpus request can be accepted in child custody cases if parents or others are holding a child illegally, meaning they don't have a legal right to do so. However, based on the details of this specific case, the Court pointed out that the people holding the child were her biological father and grandparents. Because of this, the Court decided that their custody of the child was not against the law. The Court also emphasized that a Habeas Corpus case is not meant to decide who should have custody of a child. The Court commented: "When someone asks for a Habeas Corpus order for a child, like in this situation, the main thing the court considers is if the child's current custody is against the law. The court also considers if changing who has the child would be better for the child's well-being, by moving them to someone else's care." As a result, the Court noted that a request for divorce had already been filed under Section 13-B of the Hindu Marriage Act. The Court explained that when a divorce case is ongoing, decisions about child custody are handled by Section 26 of the Hindu Marriage Act of 1955. The Court added, "Section 26 of the Hindu Marriage Act, 1955, deals with child custody. It states that during any case under this Act, the Court can issue temporary orders when it sees fit. These orders would cover the custody, financial support, and schooling of young children, taking their wishes into account if possible." Finally, the Court rejected the mother's request. It stated that in a special "writ court," decisions are usually made based on written statements sworn under oath. If a court believes a case needs a more thorough investigation, it might choose not to use its special powers. Instead, it would tell the people involved to go to other courts or places that are better suited to handle such detailed inquiries.
Case :- HABEAS CORPUS WRIT PETITION No. - 716 of 2020 Counsel for Respondent :- G.A.,Ajay Kumar Singh,Rajeev Kumar 1. Case is taken up through video conferencing. 2. This habeas corpus writ petition has been filed by seeking following i. Issue a writ order or direction in the nature of mandamus directing and commanding the respondent no.2 and 3 to appear personally before this Hon'ble Court and to produce corpus child namely Shradha Kannaujia (Minor) from the custody of the respondent no.4 to 6. ii. Issue a writ order or direction in the nature of mandamus directing the respondents to handover in the custody of minor child (corpus) to her mother/petitioner no.2 and ensure the life of corpus (minor child). iii. Issue such other further writ order or direction which this Hon'ble Court may deem fit and proper in the nature and circumstances of the present case. iv. Award the costs of the petition to the petitioners. 3. Heard learned counsel for the petitioners, learned counsel for the private respondents and learned A.G.A. for the State. 4. It has been argued by the learned counsel for the petitioners that petitioner No.2 is mother of corpus/minor girl, aged four years. The marriage of petitioner No.2 with respondent No.4 has taken place in the year 2014 and they were blessed with a girl child on 18.11.2016. Learned counsel argued that petitioner No.2 was harassed by her husband and other private respondents and on 26.09.2020 they have driven her out from the and her minor girl (corpus) was snatched by the private respondents. It was submitted that the respondent No.4 is not treating the petitioner No.1well and that she has been illegally detained by the respondent No. 4 to 6. In this connection the petitioner No.2 has approached police authorities but of no avail. No information is being given to the petitioner No.2 regarding petitioner No.1. It was submitted that the custody of petitioner No.1 be handed over to the petitioner No.2. 5. Learned counsel for the private respondents has opposed. 6. Perusal of record shows that in pursuance to earlier order, the petitioner No.1/ corpus was produced before this Court by the respondent No.4, however as she is a minor child of four years age, thus, it was found difficult to ascertain her wishes. The petitioner No.2 is mother of petitioner No.1 and respondent No.4 is her father. It appears that there has been some matrimonial dispute between petitioner No.2 and respondent No.4 and that a petition under Section 13B Hindu Marriage Act, 1955 for divorce has already been filed. 7. It is well settled that writ of habeas corpus is a prerogative writ and an extraordinary remedy. The object and scope of a writ of habeas corpus in the context of a claim relating to custody of a minor child fell for consideration in case of Sayed Saleemuddin vs. Dr. Rukhsana and others (2001)5 SCC 247 and it was held that in a habeas corpus petition seeking transfer of custody of a child from one parent to the other, the principal consideration for the court would be to ascertain whether the custody of the child can be said to be unlawful or illegal and whether the welfare of the child requires that the present custody should be changed. In said case "11. ...it is clear that in an application seeking a writ of Habeas Corpus for custody of minor children the principal consideration for the Court is to ascertain whether the custody of the children can be said to be unlawful or illegal and whether the welfare of the children requires that present custody should be changed and the children should be left in care and custody of somebody else. The principle is well settled that in a matter of custody of a child the welfare of the child is of paramount consideration of the Court..." Delhi) and another 2017 8 SCC 454, it was held that the principal duty of the court in such matters is to ascertain whether the custody of the child is unlawful and illegal and whether the welfare of the child requires that his present custody should be changed and the child be handed over to the care and custody of any other person. The relevant observations made in "44. The present appeal emanates from a petition seeking a writ of habeas corpus for the production and custody of a minor child. This Court in Kanu Sanyal v. District Magistrate, Darjeeling, (1973) 2 SCC 674, has held that habeas corpus was essentially a procedural writ dealing with machinery of justice. The object underlying the writ was to secure the release of a person who is illegally deprived of his liberty. The writ of habeas corpus is a command addressed to the person who is alleged to have another in unlawful custody, requiring him to produce the body of such person before the court. On production of the person before the court, the circumstances in which the custody of the person concerned has been detained can be inquired into by the court and upon due inquiry into the alleged unlawful restraint pass appropriate direction as may be deemed just and proper. The High Court in such proceedings conducts an inquiry for immediate determination of the right of the person's freedom and his release when the detention is found to be unlawful. 45. In a petition for issuance of a writ of habeas corpus in relation to the custody of a minor child, this Court in Sayed Saleemuddin v. Rukhsana, (2001) 5 SCC 247, has held that the principal duty of the court is to ascertain whether the custody of child is unlawful or illegal and whether the welfare of the child requires that his present custody should be changed and the child be handed over to the care and custody of any other person. While doing so, the paramount consideration must be about the welfare of the child. In Elizabeth Dinshaw v. Arvand M. Dinshaw, (1987) 1 SCC 42, it is held that in such cases the matter must be decided not by reference to the legal rights of the parties but on the sole and predominant criterion of what would best serve the interests and welfare of the minor. The role of the High Court in examining the cases of custody of a minor is on the touchstone of principle of parens patriae jurisdiction, as the minor is within the jurisdiction of the Court [see Paul Mohinder Gahun Vs. State (NCT of Delhi), 2004 SCC OnLine Del 699, relied upon by the appellant]. It is not necessary to multiply the authorities on this proposition. 46. The High Court while dealing with the petition for issuance of a writ of habeas corpus concerning a minor child, in a given case, may direct return of the child or decline to change the custody of the child keeping in mind all the attending facts and circumstances including the settled legal position referred to above. Once again, we may hasten to add that the decision of the court, in each case, must depend on the totality of the facts and circumstances of the case brought before it whilst considering the welfare of the child which is of paramount consideration. The order of the foreign court must yield to the welfare of the child. Further, the remedy of writ of habeas corpus cannot be used for mere enforcement of the directions given by the foreign court against a person within its jurisdiction and convert that jurisdiction into that of an executing court. Indubitably, the writ petitioner can take recourse to such other remedy as may be permissible in law for enforcement of the order passed by the foreign court or to resort to any other proceedings as may be permissible in law before the Indian Court for the custody of the child, if so advised. 47. In a habeas corpus petition as aforesaid, the High Court must examine at the threshold whether the minor is in lawful or unlawful custody of another person (private respondent named in the writ petition). For considering that issue, in a case such as the present one, it is enough to note that the private respondent was none other than the natural guardian of the minor being her biological mother. Once that fact is ascertained, it can be presumed that the custody of the minor with his/her mother is lawful. In such a case, only in exceptionable situation, the custody of the minor (girl child) may be ordered to be taken away from her mother for being given to any other person including the husband (father of the child), in exercise of writ jurisdiction. Instead, the other parent can be asked to resort to a substantive prescribed remedy for getting custody of the child." 9. The issue of maintainability of a habeas corpus petition under Article 226 of the Constitution of India in matters of custody of minor was also considered in case of Tejaswini Gaud and others vs. Shekhar Jagdish Prasad Tewari and others (2019) 7 SCC 42, and it was held that the petition would be maintainable where detention by parents or others is found to be illegal and without any authority of law and the extraordinary remedy of a prerogative writ of habeas corpus can be availed in exceptional cases where ordinary remedy provided by the law is either unavailable or ineffective. The observations made in the judgment in this "14. Writ of habeas corpus is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from an illegal or improper detention. The writ also extends its influence to restore the custody of a minor to his guardian when wrongfully deprived of it. The detention of a minor by a person who is not entitled to his legal custody is treated as equivalent to illegal detention for the purpose of granting writ, directing custody of the minor child. For restoration of the custody of a minor from a person who according to the personal law, is not his legal or natural guardian, in appropriate cases, the writ court has jurisdiction. 19. Habeas corpus proceedings is not to justify or examine the legality of the custody. Habeas corpus proceedings is a medium through which the custody of the child is addressed to the discretion of the court. Habeas corpus is a prerogative writ which is an extraordinary remedy and the writ is issued where in the circumstances of the particular case, ordinary remedy provided by the law is either not available or is ineffective; otherwise a writ will not be issued. In child custody matters, the power of the High Court in granting the writ is qualified only in cases where the detention of a minor by a person who is not entitled to his legal custody. In view of the pronouncement on the issue in question by the Supreme Court and the High Courts, in our view, in child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of 20. In child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be. In cases arising out of the proceedings under the Guardians and Wards Act, the jurisdiction of the court is determined by whether the minor ordinarily resides within the area on which the court exercises such jurisdiction. There are significant differences between the enquiry under the Guardians and Wards Act and the exercise of powers by a writ court which is of summary in nature. What is important is the welfare of the child. In the writ court, rights are determined only on the basis of affidavits. Where the court is of the view that a detailed enquiry is required, the court may decline to exercise the extraordinary jurisdiction and direct the parties to approach the civil court. It is only in exceptional cases, the rights of the parties to the custody of the minor will be determined in exercise of extraordinary jurisdiction on a petition for 10. What emerges from above stated authorities is that the exercise of the extraordinary jurisdiction for issuance of a writ of habeas corpus would, therefore, be considered to be dependent on the jurisdictional fact, where the applicant establishes a prima facie case that the detention is unlawful. It is only where the aforementioned jurisdictional fact is established that the applicant would become entitled to the writ. In an application seeking a writ of habeas corpus for custody of minor child, as is the case herein, the principal consideration for the court would be to ascertain whether the custody of the child can be said to be unlawful and illegal and whether his/her welfare requires that the present custody should be changed and the child should be handed over in the care and custody of someone else. Proceedings in the of habeas corpus may not be used to examine the question of the custody of a child. The prerogative writ of habeas corpus, is in the nature of extraordinary remedy and the writ is issued, where in the circumstances of a particular case, the ordinary remedy provided under law is either not available or is ineffective. The power of the High Court, in granting a writ, in child custody matters, may be invoked only in cases where the legal custody. 11. In the instant case it is not disputed that the petitioner No. 1 is aged about four years and she is stated to be under the care and custody of her father / respondent No.4, who living with his parents (respondent No. 5 & 6). It is also admitted position that the petitioner No. 2 and the respondent No. 4 are living separately, as the petitioner No. 2 has alleged that she was driven out from the matrimonial home. It is also clear from the averments of the petition that a petition under section 13-B Hindu Marriage Act has already been filed in the court. Thus, the matter relating to custody of child during the pendency of the proceedings under the Hindu Marriage Act, 1955 HMA is governed in terms of the provisions contained under Section 26 thereof. The aforesaid section applies to "any proceeding" under the HMA and it gives power to the court to make provisions in regard to: (i) custody, (ii) maintenance, and (iii) education of minor children. For this purpose the court may make such provisions in the decree as it may deem just and proper and it may also pass interim orders during the pendency of the proceedings and all such orders even after passing of the decree. Section 26 of the Hindu Marriage Act, 1955 provides for custody of children and declares that in any proceeding under the said Act, the Court could make, from time to time, such interim orders as it might deem just and proper with respect to custody, maintenance and education of minor children, consistently with their wishes, wherever possible. As observed earlier, a petition for a writ of habeas corpus concerning a minor child, the Court, in a given case, may direct to change the custody of the child or decline the same keeping in view the attending facts and circumstances. For the said purpose the main consideration is whether the custody of the minor with the private respondent, who is named in the petition, is lawful or unlawful. In the present case, the private respondents are none other than the biological father and grand parents of the minor child. This being the position, it can not be said that the custody of the child with private respondents is unlawful. However, it is open to the mother / petitioner No. 2 to take resort to the substantive statutory remedy in respect of his claim regarding custody of the child. As stated earlier, in matter of custody of a child, a writ of habeas corpus would be entertainable, where it is established that the detention of the minor child by the parent or others is illegal and without authority of law. In a writ court, where rights are determined on the basis of affidavits and that in a case where the court is of a view that a detailed enquiry would be required, it may decline to exercise the extraordinary jurisdiction and direct the parties to approach the appropriate forum. 12. Considering the facts of the matter as well as the aforesaid position of law, it is apparent that the remedy in such matters would lie under the Hindu Minority and Guardianship Act, 1956 or Guardians and Wards Act, 1890 GWA, as the case may be. In view of aforesaid, this Court is not inclined to exercise its extraordinary jurisdiction to entertain the present petition seeking a writ of habeas 13. The petition lacks merit and it is hereby dismissed.
The Allahabad High Court has explained that it can only use its special power to issue a "writ of Habeas Corpus" in child custody cases if a child is being held by someone who does not have the legal right to keep them. Because of this rule, a court led by Justice Raj Beer Singh rejected a mother's request for a Habeas Corpus order. She wanted her 5-year-old daughter back from her husband, who is the child's father. The Court noted that the correct way to handle such cases is through other laws, like the Hindu Minority and Guardianship Act of 1956 or the Guardians and Wards Act of 1890. The case in brief The mother, who made the complaint, claimed her husband and other people were bothering her. She said that in September 2020, they forced her out of her home and took her young daughter. After this, she went to the High Court with her Habeas Corpus request. She argued that her husband was not treating their daughter well and that the others were holding the child illegally. Because of this, she asked the Court to bring her daughter before them. Court's order The Court first looked at decisions from the Supreme Court, which is the highest court. It stated that a Habeas Corpus request can be accepted in child custody cases if parents or others are holding a child illegally, meaning they don't have a legal right to do so. However, based on the details of this specific case, the Court pointed out that the people holding the child were her biological father and grandparents. Because of this, the Court decided that their custody of the child was not against the law. The Court also emphasized that a Habeas Corpus case is not meant to decide who should have custody of a child. The Court commented: "When someone asks for a Habeas Corpus order for a child, like in this situation, the main thing the court considers is if the child's current custody is against the law. The court also considers if changing who has the child would be better for the child's well-being, by moving them to someone else's care." As a result, the Court noted that a request for divorce had already been filed under Section 13-B of the Hindu Marriage Act. The Court explained that when a divorce case is ongoing, decisions about child custody are handled by Section 26 of the Hindu Marriage Act of 1955. The Court added, "Section 26 of the Hindu Marriage Act, 1955, deals with child custody. It states that during any case under this Act, the Court can issue temporary orders when it sees fit. These orders would cover the custody, financial support, and schooling of young children, taking their wishes into account if possible." Finally, the Court rejected the mother's request. It stated that in a special "writ court," decisions are usually made based on written statements sworn under oath. If a court believes a case needs a more thorough investigation, it might choose not to use its special powers. Instead, it would tell the people involved to go to other courts or places that are better suited to handle such detailed inquiries.
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For the State : Mr. S. G. Mukherjee, learned P.P. The appeal is directed against the judgment and order dated 16.05.2015 and 18.05.2015 passed by the learned Additional District & Track First Court, Islampur, Uttar Dinajpur in Sessions Trial No. 35 of 2014 arising out of Sessions Case No. 127 of 2014 under Section 376 of the Indian Penal Code and sentenced him to suffer imprisonment for 10 years and a fine of Rs.50,000/-, in default to suffer further imprisonment for one year. Prosecution case as alleged against the appellant is to the effect that the appellant cohabited with the victim girl, who is a minor, on the false promise of marriage. As a result, the girl became pregnant. When she asked the appellant to marry her, he evaded the issue. Appellant had last cohabited with the victim on 16.02.2010 at 8.30p.m. in a bamboo grove. The matter came to the knowledge of the family members. A salish was held. At the salish, appellant refused to marry the victim girl due to strong objection of his family members. Under such circumstances, victim girl lodged first information report with the police resulting in registration of Chakulia Police Station Case No. 61 of 2010 dated 01.03.2010 under Sections 376/493 of the Indian Penal Code. In conclusion of trial, charge-sheet was filed and charges were framed against the appellant under Sections 376/493 of the Indian During trial prosecution examined eight witnesses to prove its case. Defence of the appellant was one of innocence and false implication. In conclusion of trial, learned Trial Judge by impugned judgment and order convicted and sentenced the appellant, as Learned Counsel appearing for the appellant submits that the victim was a consenting party. The appellant was a young person and there was free mixing between the parties. Marriage between the couple could not fructify due to resistance of the parents of the appellant. Hence, the appeal ought to be allowed. Learned Counsel appearing for the State submits that the victim was a minor at the time of occurrence and the appellant had forcibly ravished the girl on the first occasion. Thereafter, he had repeatedly cohabited with the victim on the false promise of marriage. Hence, the appeal is liable to be dismissed. P.W. 1 is the minor victim. She deposed that the appellant took her in a bamboo grove and committed rape on her. She has tried to resist him but he did not listen. The appellant promised to marry her. Thereafter, she cohabited with him on a number of times on the assurance of marriage. As a result, she conceived. When she approached the appellant he refused to marry her. A salish took place wherein the appellant agreed to marry her but his parents did not agree with the marriage. As a result, she lodged first information report. She gave birth to a child who is 4½ years of age. Evidence of P.W. 1 is corroborated by her mother, P.W. 4. P.W. 5 has proved the salish wherein the appellant had admitted the incident but his parents did not agree with the marriage. P.W. 2 is the medical officer who examined the victim and found her 24 weeks pregnant. P.W. 6 is the headmaster of Khikirtola M.S.K. where the victim studied. He proved her Transfer Certificate (Exhibit – 2) wherein her date of birth is recorded as 18.03.1993. Hence, the victim was below 17 years at the time of the incident. P.W. 7 is the scribe and P.W. 8 is the investigating officer. The evidence of record clearly establishes that the appellant had cohabited with her on the promise of marriage. However, I find it is difficult to accept that the initial cohabitation was forceful as such allegation is significantly absent in the first information report lodged by P.W. 1. It is argued that the appellant had agreed to marry her but the marriage could not fructify due to resistance of his parents. Hence, it cannot be said that the appellant did not intend to marry her at the time when they cohabited. I find much substance in such submission. Mere failure to keep a promise without anything more cannot lead to the irresistible conclusion that the promise had been dishonestly made from the inception. Evidence has come on record that the appellant and the victim girl wanted to marry each other and cohabited. As a result, she became pregnant but due to resistance of the parents of the appellant marriage was not held. Thus, it cannot be said that the appellant did not have intention to marry the victim at the time when they cohabited but such marriage was not possible due to obstruction from elders in the family. Moreover, it appears from “Exhibit – 2” that the date of birth of the victim is 18.03.1993 and she was above 16 years at the time of occurrence. Thus, victim had crossed the age of consent. From the materials on record, it appears that the cohabitation was consensual. Appellant was a young person and the marriage proposal did not come to fruition due to opposition from elders. Hence, it cannot be said that the appellant did not intend to marry from the inception of the relationship. Furthermore, it would be incorrect to punish the appellant as the promise to marry did not fructify due to subsequent event, namely, opposition from family elders which is not attributable to In this regard reference may be made to Deelip Singh @ Dilip Kumar vs. State of Bihar1 wherein the court held as follows:- “30. ...whether the promise to marry, if made by the accused, was false to his knowledge and belief from the very inception and it was never intended to be acted upon by him. As pointed out by this Court in Uday case the burden is on the prosecution to prove that there was absence of consent. Of course, the position is different if the case is covered by Section 114-A of the Evidence Act. Consent or absence of it could be gathered from the attendant circumstances. The previous or contemporaneous acts or the subsequent conduct can be legitimate guides.” In light of the aforesaid discussion, I am inclined to set aside the conviction and sentence and acquit the appellant of the charges levelled against him. Appellant Saddam Hussain shall be forthwith released from custody, if not wanted in any other case, upon executing a bond to the satisfaction of the trial court for a period of six months in terms of section 437A of the Code of Criminal Procedure. The appeal is, accordingly, allowed. All connected applications, if any pending, be disposed of. Let a copy of this judgment along with the lower court records be forthwith sent down to the trial court at once. Photostat certified copy of this judgment, if applied for, shall be made available to the appellant within a week from the date of putting in the requisites. I agree.
The Calcutta High Court recently found a man not guilty of rape charges. The court said it would be wrong to punish someone for rape if their promise to marry wasn't kept due to events out of their control. For example, if family members opposed the marriage, and this wasn't the man's fault. The judges, Justice Joymalya Bagchi and Justice Bivas Pattanayak, noted that the man was young. They decided the marriage proposal didn't happen because his older family members were against it. Therefore, they ruled it wasn't a case of sex based on a fake promise to marry, which can sometimes be considered rape. The matter in brief This case was an appeal from Saddam Hussain. He was challenging an earlier court decision from 2015. That court had found him guilty of rape and sentenced him to 10 years in prison. The prosecution, which represents the government, claimed that Saddam had lived with the girl, who was under 18. They said he promised to marry her, but it was a fake promise. She became pregnant, and then he avoided marrying her and refused to do so. During the first trial, the prosecution brought eight people to testify. Saddam's lawyers argued that he was innocent and had been wrongly accused. In the end, the first court found him guilty and gave him the prison sentence mentioned before. When he appealed to the High Court, Saddam argued that the girl had agreed to be with him. He also said that the marriage didn't happen because his parents opposed it. Court's observations First, the High Court noted that the evidence showed Saddam had lived with the girl after promising to marry her. However, the court added that she wasn't forced at first. The initial police report did not claim that there was any force. The court also thought about Saddam's argument that he had agreed to marry her. But the marriage could not happen because his parents were against it. The judges said: "So, we cannot say that Saddam never planned to marry her when they lived together. Just because a promise isn't kept, it doesn't automatically mean the promise was a lie from the very beginning." Because of all this, the Court decided that Saddam did intend to marry the girl when they were together. However, the marriage was not possible because older family members stopped it. The prosecution also argued that the girl was under 18 when it happened. But the Court found that she was older than 16 at that time. Therefore, the Court decided she was old enough to give her consent. Because of all these reasons, the High Court canceled the earlier guilty verdict and prison sentence. It found Saddam not guilty of the charges against him. Case title - Saddam Hussain v. State of West Bengal
For the State : Mr. S. G. Mukherjee, learned P.P. The appeal is directed against the judgment and order dated 16.05.2015 and 18.05.2015 passed by the learned Additional District & Track First Court, Islampur, Uttar Dinajpur in Sessions Trial No. 35 of 2014 arising out of Sessions Case No. 127 of 2014 under Section 376 of the Indian Penal Code and sentenced him to suffer imprisonment for 10 years and a fine of Rs.50,000/-, in default to suffer further imprisonment for one year. Prosecution case as alleged against the appellant is to the effect that the appellant cohabited with the victim girl, who is a minor, on the false promise of marriage. As a result, the girl became pregnant. When she asked the appellant to marry her, he evaded the issue. Appellant had last cohabited with the victim on 16.02.2010 at 8.30p.m. in a bamboo grove. The matter came to the knowledge of the family members. A salish was held. At the salish, appellant refused to marry the victim girl due to strong objection of his family members. Under such circumstances, victim girl lodged first information report with the police resulting in registration of Chakulia Police Station Case No. 61 of 2010 dated 01.03.2010 under Sections 376/493 of the Indian Penal Code. In conclusion of trial, charge-sheet was filed and charges were framed against the appellant under Sections 376/493 of the Indian During trial prosecution examined eight witnesses to prove its case. Defence of the appellant was one of innocence and false implication. In conclusion of trial, learned Trial Judge by impugned judgment and order convicted and sentenced the appellant, as Learned Counsel appearing for the appellant submits that the victim was a consenting party. The appellant was a young person and there was free mixing between the parties. Marriage between the couple could not fructify due to resistance of the parents of the appellant. Hence, the appeal ought to be allowed. Learned Counsel appearing for the State submits that the victim was a minor at the time of occurrence and the appellant had forcibly ravished the girl on the first occasion. Thereafter, he had repeatedly cohabited with the victim on the false promise of marriage. Hence, the appeal is liable to be dismissed. P.W. 1 is the minor victim. She deposed that the appellant took her in a bamboo grove and committed rape on her. She has tried to resist him but he did not listen. The appellant promised to marry her. Thereafter, she cohabited with him on a number of times on the assurance of marriage. As a result, she conceived. When she approached the appellant he refused to marry her. A salish took place wherein the appellant agreed to marry her but his parents did not agree with the marriage. As a result, she lodged first information report. She gave birth to a child who is 4½ years of age. Evidence of P.W. 1 is corroborated by her mother, P.W. 4. P.W. 5 has proved the salish wherein the appellant had admitted the incident but his parents did not agree with the marriage. P.W. 2 is the medical officer who examined the victim and found her 24 weeks pregnant. P.W. 6 is the headmaster of Khikirtola M.S.K. where the victim studied. He proved her Transfer Certificate (Exhibit – 2) wherein her date of birth is recorded as 18.03.1993. Hence, the victim was below 17 years at the time of the incident. P.W. 7 is the scribe and P.W. 8 is the investigating officer. The evidence of record clearly establishes that the appellant had cohabited with her on the promise of marriage. However, I find it is difficult to accept that the initial cohabitation was forceful as such allegation is significantly absent in the first information report lodged by P.W. 1. It is argued that the appellant had agreed to marry her but the marriage could not fructify due to resistance of his parents. Hence, it cannot be said that the appellant did not intend to marry her at the time when they cohabited. I find much substance in such submission. Mere failure to keep a promise without anything more cannot lead to the irresistible conclusion that the promise had been dishonestly made from the inception. Evidence has come on record that the appellant and the victim girl wanted to marry each other and cohabited. As a result, she became pregnant but due to resistance of the parents of the appellant marriage was not held. Thus, it cannot be said that the appellant did not have intention to marry the victim at the time when they cohabited but such marriage was not possible due to obstruction from elders in the family. Moreover, it appears from “Exhibit – 2” that the date of birth of the victim is 18.03.1993 and she was above 16 years at the time of occurrence. Thus, victim had crossed the age of consent. From the materials on record, it appears that the cohabitation was consensual. Appellant was a young person and the marriage proposal did not come to fruition due to opposition from elders. Hence, it cannot be said that the appellant did not intend to marry from the inception of the relationship. Furthermore, it would be incorrect to punish the appellant as the promise to marry did not fructify due to subsequent event, namely, opposition from family elders which is not attributable to In this regard reference may be made to Deelip Singh @ Dilip Kumar vs. State of Bihar1 wherein the court held as follows:- “30. ...whether the promise to marry, if made by the accused, was false to his knowledge and belief from the very inception and it was never intended to be acted upon by him. As pointed out by this Court in Uday case the burden is on the prosecution to prove that there was absence of consent. Of course, the position is different if the case is covered by Section 114-A of the Evidence Act. Consent or absence of it could be gathered from the attendant circumstances. The previous or contemporaneous acts or the subsequent conduct can be legitimate guides.” In light of the aforesaid discussion, I am inclined to set aside the conviction and sentence and acquit the appellant of the charges levelled against him. Appellant Saddam Hussain shall be forthwith released from custody, if not wanted in any other case, upon executing a bond to the satisfaction of the trial court for a period of six months in terms of section 437A of the Code of Criminal Procedure. The appeal is, accordingly, allowed. All connected applications, if any pending, be disposed of. Let a copy of this judgment along with the lower court records be forthwith sent down to the trial court at once. Photostat certified copy of this judgment, if applied for, shall be made available to the appellant within a week from the date of putting in the requisites. I agree.
The Calcutta High Court recently found a man not guilty of rape charges. The court said it would be wrong to punish someone for rape if their promise to marry wasn't kept due to events out of their control. For example, if family members opposed the marriage, and this wasn't the man's fault. The judges, Justice Joymalya Bagchi and Justice Bivas Pattanayak, noted that the man was young. They decided the marriage proposal didn't happen because his older family members were against it. Therefore, they ruled it wasn't a case of sex based on a fake promise to marry, which can sometimes be considered rape. The matter in brief This case was an appeal from Saddam Hussain. He was challenging an earlier court decision from 2015. That court had found him guilty of rape and sentenced him to 10 years in prison. The prosecution, which represents the government, claimed that Saddam had lived with the girl, who was under 18. They said he promised to marry her, but it was a fake promise. She became pregnant, and then he avoided marrying her and refused to do so. During the first trial, the prosecution brought eight people to testify. Saddam's lawyers argued that he was innocent and had been wrongly accused. In the end, the first court found him guilty and gave him the prison sentence mentioned before. When he appealed to the High Court, Saddam argued that the girl had agreed to be with him. He also said that the marriage didn't happen because his parents opposed it. Court's observations First, the High Court noted that the evidence showed Saddam had lived with the girl after promising to marry her. However, the court added that she wasn't forced at first. The initial police report did not claim that there was any force. The court also thought about Saddam's argument that he had agreed to marry her. But the marriage could not happen because his parents were against it. The judges said: "So, we cannot say that Saddam never planned to marry her when they lived together. Just because a promise isn't kept, it doesn't automatically mean the promise was a lie from the very beginning." Because of all this, the Court decided that Saddam did intend to marry the girl when they were together. However, the marriage was not possible because older family members stopped it. The prosecution also argued that the girl was under 18 when it happened. But the Court found that she was older than 16 at that time. Therefore, the Court decided she was old enough to give her consent. Because of all these reasons, the High Court canceled the earlier guilty verdict and prison sentence. It found Saddam not guilty of the charges against him. Case title - Saddam Hussain v. State of West Bengal
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1. This appeal is directed against the order of conviction and sentence passed by Special Judge (POCSO), Andaman and Nicobar Islands, Port Blair in Sessions Case No. 24 of 2017 on 06.11.2017, whereby the appellant has been convicted for commission of offence punishable under Section 6 of the POCSO Act, read with section 376 IPC and sentenced to suffer rigorous imprisonment for twenty-five years with fine of Rs. 1 Lakh and in default to suffer further simple imprisonment for one year for committing of offence under Section 5(j)(ii) of POCSO 2. In the present case the criminal proceeding against the Appellant perpetrator, who happens to be the step father of the prosecutrix has been set in motion on the initiative taken by PW3 Sister Rose Ann, sister-in-charge of Nirmala Shishu Bhawan, Port Blair (the Children’s Home of Missionaries of Charity for abandoned street babies and children or a shelter home or institution meant for minor children in need of care and protection) where the victim girl who was six months old pregnant was admitted by her own mother and the perpetrator- step father on 08.06.2017. 3. That Sister Ann on finding the victim to be a minor pregnant girl and on learning that she was impregnated by her own step father put criminal law in motion by informing the concerned authority i.e. Mr. P.C. James (PW10) Nodal Officer of Social Welfare Department and who in turn appears to have informed District Child Protection Unit, Port Blair. On receiving information from Mr. James, Dr. Sheetal Anup, DCPO, Port Blair along with child line workers Renu Singh and Suman Barla (PW2) proceeded to Nirmala Shishu Bhawan after informing Women Police Cell of Port Blair. That members of DCPU and lady police official of Women Police Cell, Port Blair after reaching the Children’s Home enquired the victim girl and who invariably told them that it was her step father who committed sexual offence/rape on her and which resulted in her pregnancy. Then they obtained a written complaint duly signed by the victim and on which the members of DCPU too have signed and forwarded the same to Aberdeen P.S. for taking necessary legal action. On receiving such complaint of victim from DCPU and official of police women cell, PW 12 Station Writer of Aberdeen PS started Zero FIR dated 15.06.2017 under Section 5(j)(ii)/6 of POCSO Act read with Section 376 IPC and transmitted the same to the Hutbay PS for initiating regular case or FIR. 4. PW13 Mohd. Mustafa, Head Moharar of Hutbay PS on receiving Zero FIR and on direction of PW 14 Inspector Bishal Ram registered Hutbay PS case No 44/17 dated 16.06.2017 under section 5(j)(ii)/6 of POCSO Act read with Section 376 IPC against the accused. PW 14 Inspector Bishal Ram, the then SHO of HutBay P.S. took up the investigation of the case suo moto and arrested the perpetrator the convict/accused. That on completion of investigation and having found sufficient materials against the accused for committing offence under section 5(j)(ii)/6 of POCSO Act read with Section 376 IPC submitted charge sheet under those sections. 5. From the above discussed facts, it appears when the mother of the victim found her eldest daughter was six months pregnant, instead of lodging any FIR against the actual perpetrator and without ascertaining the identity of actual perpetrator from the daughter seems to have brought the pregnant girl along with her second husband all the way from Hutbay to Port Blair and dumped her in a Children’s Shelter Home run by Missionaries of Charity. P.W.3 the Sister In-charge of the shelter home in her evidence has stated that parents of the victim were in hurry to catch return ship to HutBay from Port Blair and they just left behind the victim with an assurance to take her back after delivery. Such unusual conduct on the part of the biological mother of the victim gives rise to presumption that she was very much aware of the involvement of her second husband of few months in the crime and knew him to be the real perpetrator and thereby she wanted to give protection to him or she wanted to hush- up the entire incident just to save the family from being ostracized in the local community and/or to save her second marriage, and therefore, did not bother to lodge any FIR or find out from the daughter about the real culprit. 6. It is true the prosecution has failed to examine the mother of the victim who has been cited as a Charge Sheet witness No. 18, but non examination of the mother of the victim does not appear to be fatal to the prosecution case in view of the discussion to be followed. 7. Learned counsel appearing for the respondent contended conviction in rape case can be based on the sole testimony of victim that stands and is not countered. Non-examination of other witnesses per se cannot vitiate the prosecution case and referred to following decisions in support of her such contention: - a. State of Punjab vs. Gurmeet Singh reported in (1996) 2 SCC b. State of UP vs. Pappu reported in (2005) 3 SCC 594 c. Bipin Kumar Mondal vs. State of West Bengal reported in In fact, after going through the evidence which have come on record it appears the entire prosecution case lies on the sole evidence of the victim and DNA report of the child born to the victim. 8. It has been held by the Hon’ble Supreme Court of India in various decisions that barring serious exceptions, the evidence of victim of sexual assault is enough for conviction. A girl, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person’s lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. Maintaining that the sole and trust worthy evidence of a woman, who is a victim of a sexual offence, is enough to find her assailant guilty. An accused guilty for committing of offence of rape, the solitary evidence of the prosecutrix is sufficient, provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. Further, it has been held rape is not mere physical assault but instead destroys the whole personality of the victim. The rapist degrades the very soul of the helpless female and therefore, the testimony of the prosecutrix must be appreciated on the background of the entire case, even if the mother turns hostile. 9. On this backdrop let me evaluate the evidence of the victim. The victim in her evidence-in-chief categorically reiterated what she has alleged in her FIR and in the statement recorded u/s 164 Cr.P.C. by learned Judicial Magistrate. Her evidence also shows that criminal motion against her step father started only after her admission in the shelter home and at the initiative taken by the sister in-charge of the home and other concerned authorities. She appears to have given her evidence before the Court after the delivery of child. She in her cross- examination categorically denied that she became pregnant as she had physical relationship with a boyfriend. Unfortunately, the defence/appellant has failed to bring on record the details and particulars of the alleged boyfriend of the victim or victim’s physical access to some other male at the relevant period of time. On the contrary, the victim in her evidence recorded under oath corroborated what she had alleged in the FIR and in her Section 164 Cr.P.C. statement recorded by Magistrate during investigation stage. In fact, no substantial materials have come during cross examination of the victim to shatter what she has stated in her chief or in the complaint/FIR and in her statement recorded under section 164 Cr.P.C. There is nothing to disbelieve the evidence given by the victim. 10. Exhibit 10, certificate of marriage, issued by Parish Priest of St. Anthony’s Church, Hutbay prima facie proves that Sunita Tigga, mother of the victim married Ram Sevak Lohar on 24 th June, 2016. The victim in her evidence both in chief and cross categorically stated that her father Christopher Tete died in the year 2010 and her mother married her perpetrator in the year 2016. That after marriage Ram Sevak Lohar started to reside with them in their house. Nothing has come on record from the side of defence to show that after marriage mother of the victim and her newly married husband resided in a separate house from the victim and her sister. In fact Exhibit 14, photographs of place of occurrence, and evidence of IO PW 14 show that accused used to live in Tsunami shelter having two rooms along with his newly married wife and her two daughters. The statement of the mother of the victim recorded by police under Section 161 Cr.P.C during investigation shows that the accused appellant is an ordinary resident of Bamboo flat. She was introduced with the accused by one of her friends who happens to be the relative of the accused. That after marriage the accused came to Hutbay and started living in her house. Such facts prima facie proves during the alleged occurrence the accused had access of the victim as they used to live in the same house. 11. The victim in her evidence has stated that sometime in the month of July, 2016 when her mother and sister were not at home at that time finding her alone in the house her step father made a sexual advance by touching sensitive parts of her body including her private part. On that day she objected and accused spared her, but she could not save herself from the lust of the accused on the subsequent occasions. Whenever her mother and sister used to be away from home, then the accused taking advantage of the situation raped and ravished her sexually on several occasions in between July, 2016 till she informed her mother about missing of her period. When she found her menstruation has stopped, she informed her mother who took her to the Hospital at Hutbay. On medical examination she was found six months pregnant and she was brought to Port Blair by her mother and step father and left her at Nirmala Shishu Bhawan. 12. It is true in the present case the prosecution has failed to examine the Doctor of Hutbay, who medically examined the victim and found her to be six months old pregnant, but non examination of such Doctor is not likely to affect the prosecution case as the fact remains that when the victim was admitted in Nirmala Shishu Bhawan on 08.06.2017 she was in advance stage of pregnancy and she delivered a baby boy at G.B. Pant Hospital on 09.08.2017. 13. It has been contended by Mr. Deep Chaim Kabir, learned counsel for the appellant appointed by the Court, if the victim was really raped by the accused and against her will then she could have raised hue and cry which could have come to the hearing of the persons residing adjacent to her house. He draws attention of the Court to the sketch map of the place of occurrence Exhibit 17 and Exhibit 14 the four photographs of the place of occurrence and which show the house of the grandmother of the victim is the adjacent room having common partition wall and house of PW4 and that of his brother K. Murugan is the next nearby house. 14. He further contended if the victim was really sexually ravished by the accused, then she could have informed about the incident to her own mother and sister. Failure on her part to disclose about the incident to her mother or to the person to whom she can confide raises an adverse inference against the victim. 15. It is true the victim in her evidence recorded by the Court invariably stated that she did not inform about the incident to any person including her mother and she did not even tell her mother that her step father was the one who made her pregnant out of fear. 16. For the sake of argument, even if we assume that victim is a consenting party to the sexual acts committed by her step father, the step father cannot evade the legal consequences for his misdeed as Exhibit 9, the birth certificate of the victim, shows she was born on 18.12.2001 and when the alleged incident took place in between July, 2016 to early part of 2017 the victim was a minor girl below 16 years of age. It is settled principle of law that a minor’s consent is no consent in eyes of law in rape cases. 17. In view of clause 6 of Section 375 IPC sexual intercourse with a girl not related as wife below 16 years is an offence of rape. No matter whether the victim girl consented or not consented to sexual intercourse. Even if the victim girl is not modest or is a willing party or even if she invited the accused to have the sexual intercourse with her, the act of sexual intercourse would be still be an offence. 18. The evidence of PW 5 Dr. Anthony who was posted as Medical Officer at PHC, Hutbay and PW 6 Jyoti Basu a Head Worker of PHC Hutbay in their evidence have stated that one Ram Sevak Lohar was brought to the PHC by police for medical examination on 16.06.2017. On medical examination the accused was found to be potent and capable to have sexual intercourse. That police made seizure of sample of pubic hair and penis swab of Ram Sevak Lohar collected in two test tubes under a seizure list in their presence and who identified their signatures on the seizure list and labels. Such evidence of Dr. Anthony proves that accused is sexually active and capable of having sexual intercourse. 19. It has been contended by the counsel for the appellant the conviction of the accused has been based on DNA report (Exhibit 19) of the child born to the victim on 09.08.2017 while she was staying in Children’s Shelter Home at Port Blair. But manner in which the sample was collected was not done scientifically and there is manipulation in the sample collected. He submitted that blood sample of the victim and that of the child were collected on 07.09.2017 and that of the accused was collected on 08.09.2017. DNA is at a molecular level and which renders it extremely fragile and subject to contamination. The samples were never packed, sealed and labelled properly. The FTA Card were simply put together and sent in an envelope to the lab and which had every chance of contamination at any point of time, with cross contact between the sample FTA Cards. CFSL Kolkata received the sample on 09.10.2017 and tested the same on 27.11.2017 to 30.11.2017. The long delays and gaps in between the collection and examination, there is every chance of sample being contaminated and as such the report cannot be relied on. 20. He further submits that doctor who collected the sample was not examined and even the Serologist/Forensic Scientist who did the DNA profiles of the blood sample collected from the victim, the child and the accused is not examined as a witness and as such the DNA profiles report cannot be taken into consideration. 21. It is true Dr. Ganesh Samadder, Chief Medical Officer, G.B Pant Hospital, Port Blair who collected the blood sample of the victim, the accused and the child born to the victim in presence of PW2 and Renu Singh, Member of DCPU were not examined by prosecution. But the victim and PW2 another member of DCPU, in their evidence have stated that blood sample was obtained at G.B. Pant Hospital on 07.09.2017. PW14 I.O. in his evidence stated that the samples were collected in the presence of independent witnesses and in whose presence, he made seizure of the same. Thereafter, he sent the sample to CFSL, Kolkata for DNA profile. 22. On the other hand, learned counsel for the State submitted DNA report is a conclusive proof and referred to Rajender Prasad Rao Wasnik Vs. State of Maharashtra reported in AIR 2019 SC 1. 23. PW15 Sub-Inspector M Sarvanand stated that he received the DNA report of the victim, accused and the child from Director CFSL, Kolkata. Thereafter, he submitted supplementary charge sheet on 30.01.2018. The DNA report along with forwarding letter has been marked collectively as Exhibit 19 and without examining the expert who did the DNA profiles test. This Court is of view non-examination of the expert is not likely to discard the evidentiary value of the DNA report in view of provision of Section 293 Cr.P.C. 24. Section 293 Cr.P.C deals with reports of certain Government, Scientific Experts and reads as follows: (1) Any document purporting to be a report under the hand of a Government scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this (2) The Court may, if it thinks fit, summon and examine any such expert as to the subject-matter of his report. (3) Where any such expert is summoned by a Court and he is unable to attend personally, he may, unless the Court has expressly directed him to appear personally, depute any responsible officer working with him to attend the Court, if such officer is conversant with the facts of the case and can satisfactorily depose in Court on his behalf. (4) This section applies to the following Government scientific experts, (a) any Chemical Examiner or Assistant Chemical Examiner to (b) the Chief Controller of Explosives; (d) the Director, Haffkeine Institute, Bombay; (e) the Director [, Deputy Director or Assistant Director] of a Central Forensic Science Laboratory or a State Forensic Science (f) the Serologist to the Government. (g) any other government Scientific Expert specified by notification, by the Central government for this purposed. 25. Sub-section (2) of Section 293 lays down that expert covered by this Section should not be examined as a matter of routine at the instance of a party. The Court has discretion in the matter and only when the court finds that it is expedient to do so in the interest of justice the expert should be summoned and the expert’s opinion should be tested by cross-examination. Summoning of an expert is within the discretionary power of the Court and such discretionary power is to be exercised depending on facts of each case. 26. It appears the accused or his counsel did not find necessary to examine the expert and they have failed to file any application challenging the DNA test report before the Trial Court before or after the same was marked as Exhibit 19 on production by PW 15. Therefore, this court is of view the accused cannot raise any objection against non examination of the expert at the appellate stage. Thus, this Court is of the view the learned Trial Court has rightly exercised discretion provided under Section 293 (2) Cr.P.C. 27. That apart, DNA profile test report being submitted by Central Forensic Laboratory, Kolkata a Government undertaking for conducting DNA test and as such it can be admitted in evidence without examination of the expert. 28. DNA test report confirm the accused Ram Sevak Lohar, the step father of the victim to be the father of the child born to the victim and leaves no room for doubt that the accused is the one who impregnated the victim by sexually abusing her. It appears the accused instead of becoming a guardian and protector of the minor children of his newly married wife made the victim, the eldest daughter of his wife, an object of his sexual pleasure and lust and that too within a month of his marriage. 29. Further, it has been urged by learned counsel for the accused the charge as framed against the accused is bad in law as in view of provision of Section 212 of Cr.P.C the time, date and place of occurrence needs to be specifically mentioned, but the charge which has been framed against the accused is silent about the particulars as to time date and place of the alleged offence. Defective framing of charge amounts to failure of justice in terms of Section 464 Cr.P.C and refers to Wille Slaney vs. State report in AIR 1956 SC 116. 30. From the lower court records it is revealed that the accused has failed to challenge the defect in the framing of charge before the Court below and allowed the trial to proceed against him on such charge. After holding him guilty of the charge he cannot raise such issue before the appellate Court. 31. He further contended the manner in which the accused has been examined under Section 313 Cr.P.C was done in a stereotype manner and failed to put question to the accused on the circumstances derived from the evidence and which has prejudiced the trial. He refers to Maheswar Tigga vs. State reported in AIR 2020 SC 4535 and Naval Kishor Singh vs. State reported in (2004) 7 SCC 502 to buttress his above argument. 32. Perused Section 313 Cr.P.C statement of the accused and this Court finds that the learned Court below has examined the accused on all the adverse circumstances and evidence which have come on record against him and accused appears to have given evasive replies to all those questions put to him. 33. Further, Section 29 of the Act provides that where a person is prosecuted for committing or abetting or attempting to commit any offence under Section 3, 5, 7 and 9 of this Act, the Special Court shall presume such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved. In the present case, the defence has failed to demolish the presumption by adducing defence witness or by producing substantial evidence to prove his innocence. No substantial materials have come in the cross-examination of prosecution witnesses including the victim to disbelieve the evidence which they have given in chief. 34. In view of the discussions and findings made above this Court is of the considered view that prosecution has been able to prove that the victim who was below 16 years was subjected to penetrative sexual assault repeatedly by her own step father immediately after becoming a member or part of their family and that too in their shared household beyond all reasonable doubt and accused has failed to rebut the presumption under Section 29 of the POCSO Act. Accordingly, this Court does not find any illegality or infirmity in the judgement of conviction passed by the learned Trial Court against the accused/appellant for committing offence under Section 5 of POCSO Act, 2012 punishable under Section 6 of the Act. 35. However, this Court finds that the learned Court below while passing the sentence has overlooked the fact that occurrence having taken place sometime in the year 2016 and 2017 prior to the amendment in Section 6 of POCSO Act, by Amendment Act 25 of 2019 and which has been given effect from 16.08.2019 has sentenced the accused by invoking the amended provision of section 6 of the Act and thereby sentenced the accused to suffer rigorous imprisonment for a term of twenty five years and fine of Rs.1 Lakh and in default to suffer S.I. for another one year. 36. Section 6 of the POCSO Act prior to amendment which has taken effect from 16.08.2019 read as: “Punishment for aggravated penetrative sexual assault. - Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine.” The amended Section 6 of the POCSO Act reads as follows. - 1) Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person, and shall also be liable to fine or with death. (2) The fine impose under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim.” 37. In view of Article 20 of the Constitution of India no one shall be subjected to a greater penalty for an offence than what was provided under the law in force when the offence was committed. The expression law in force refers to the law factually in operation at the time when the offence was committed and does not relate to a law subsequently made. 38. In the present case the alleged offence having taken place in between July, 2016 to April, 2017 and in view of provision of Article 20 of the Constitution of India, the accused is liable to be sentenced as per the original provision of Section 6 of the POCSO Act and not as per the amended provisions of Section 6 of the POCSO Act, which came into effect from 16.08.2019. 39. That apart no materials have come on record to show any criminal antecedents of the appellant or his involvement in similar offences earlier. The victim in her evidence has admitted that she has not heard about Ram Savek Lohar committing offence of sexual assault on any other person. 40. Therefore, this Court sets aside the sentence imposed by the Trial Court being void and illegal and hereby sentences the accused Ram Sevak Lohar for committing offence punishable under Section 6 of the POCSO Act read with Section 376 IPC with rigorous imprisonment for fourteen years and fine of Rs. 50,000/- and in default R.I. for another six months. The period of detention undergone by the accused is subject to set-off against the sentence of imprisonment under Section 428 of Cr.P.C. 41. Let copy of this judgement be supplied free of cost to the accused/convict. 42. Accordingly, CRA 12 of 2021 is disposed of and connected application is also disposed of. 43. Let the lower court records be sent down along with the copy of this judgement immediately. 44. All parties to act in terms of the copy of the order downloaded from the official website of this Court. 45. Urgent certified copy of this order if applied for may be supplied to the parties upon compliance of usual formalities. 46. I have had the pleasure of perusing the judgement craftily penned by my sister judge and I am completely at consensus ad idem with her. The present case is one where the prosecution has laid the foundations as required under Section 29 of the POCSO Act, 2012. It is a fountain that has not been repelled or shattered in any manner by the defence. On a perusal of the evidence, it is clear that the defence could not bring any credible witness to rebut the presumption and foundation of the prosecutors’ case. The arguments and submissions made by Mr. Kabir, amicus curiae appointed by this court, especially with regard to the procedure for handling the DNA samples is commendable. However, since the sole testimony of the victim has stood steadfast and unblemished, one can clearly hold that the case of the prosecution has been proved beyond reasonable doubt. 47. We would like to thank the counsel appearing on behalf of both the parties for diligently putting forward their arguments. It is evident from the judgements cited and arguments put forward by the counsel appearing on behalf of both the parties that pain-staking efforts have been undertaken by them. In conclusion, I wholeheartedly subscribe to the view taken by my learned sister judge and agree with the judgement passed by her.
The Calcutta High Court stated on Friday that just the word of a sexual assault victim is enough to find someone guilty. The Court also said that a victim's statement should not be doubted as much as the statement of someone who helped commit the crime. Two judges, Justice Shekhar B. Saraf and Justice Kesang Doma Bhutia, noted that the Supreme Court has often ruled that, except in very serious cases, a sexual assault victim's statement alone is enough to lead to a guilty verdict. The Court stressed that a sexual assault victim's statement should not be doubted as much as that of someone who helped commit the crime. The Court explained, "A girl who is a victim of sexual assault is not someone who helped with the crime, but is suffering because of another person's bad intentions. Therefore, her statement should not be doubted as much as an accomplice's. The reliable statement of a woman who is a victim of a sexual crime is enough to find her attacker guilty. For someone accused of rape, the victim's single statement is enough, as long as it seems believable, completely trustworthy, perfect, and of very high quality." The Court also observed that a statement from a minor sexual assault victim must be judged carefully, considering everything about the case. It was noted that even if the victim's mother changes her mind or refuses to cooperate, the victim's own reliable statement can still be enough to get a guilty verdict. The Court further stated, "Rape is not just a physical attack; it deeply harms the victim's entire personality. The rapist deeply damages the victim's spirit. So, the victim's statement must be looked at in the context of the whole case, even if the mother doesn't cooperate." **Background** This case was an appeal challenging a decision from November 6, 2017. In that decision, a lower court had found the accused person guilty of a serious sexual assault involving penetration, under Section 6 of the POCSO Act (Protection of Children from Sexual Offences), and rape, under Section 376 of the IPC (Indian Penal Code). The accused person, who is the victim's stepfather, had raped the minor girl many times between July 2016 until she told her mother about her period being late. The stepfather would rape the minor victim whenever her mother and sister were not home. After being told, the minor victim's mother took her to a hospital. A medical check-up showed she was six months pregnant. As a result, the mother and stepfather placed the minor victim in Nirmala Shishu Bhawan, a children's home in Port Blair, on June 8, 2017. They promised to take her back after she gave birth. When the staff at the Children's Home found out the minor victim was pregnant and learned that her stepfather had gotten her pregnant, the Sister-in-charge started the legal process. She informed the Nodal Officer of the Social Welfare Department, who then informed the District Child Protection Unit (DCPU) in Port Blair. Members of the DCPU and a female police officer from the Women Police Cell in Port Blair then spoke to the victim. She consistently told them that her stepfather had committed the sexual crime against her. They then got a written complaint, properly signed by the victim and also by the DCPU members. This complaint was later sent to the police station to start legal action. Afterward, an initial police report (a zero FIR) was filed on June 5, 2017. It was filed under Section 5(j)(ii)/6 of the POCSO Act (for serious sexual assault involving penetration) and Section 376 of the IPC (for rape). **Observations** Right away, the Court strongly criticized the victim's biological mother for her involvement and for not filing a police report against the stepfather. She did this to try and save her second marriage. The Court observed, "Such unusual behavior from the victim's biological mother suggests that she knew her second husband of only a few months was involved in the crime and knew he was the real attacker. She wanted to protect him or keep the whole incident quiet to save the family from being shunned in the local community, or to save her second marriage. So, she did not bother to file a police report or ask her daughter about the real culprit." After carefully looking at the minor victim's evidence, the Court found no reason to not believe what the victim said. The Court noted that in her main statement in court, the victim clearly repeated what she had claimed in her initial police report and in the statement she gave to a judge during the investigation. The Court also considered that the minor, when questioned by the defense lawyer, clearly denied that she became pregnant because of an alleged physical relationship with a boyfriend. The Court stated, "Unfortunately, the defense and the accused person failed to provide any specific information about the victim's alleged boyfriend or if the victim had contact with any other male during the time the crime happened. Instead, the victim, in her sworn statement, confirmed what she had claimed in the initial police report and in her statement recorded by a judge during the investigation. In fact, nothing important came up during the victim's cross-examination to break down what she had said in her main statement or in her complaint/police report and her statement recorded by a judge." The Court also stressed that it does not matter if the minor victim consented or did not consent to the sexual act. This is because Section 376 of the IPC states that sexual acts with a girl under 16 years old, who is not a wife, is considered the crime of rape. It is an established legal rule that a minor's consent is not legally valid in rape cases, the Court further stated. The Court noted that in this case, the minor victim was born on December 18, 2001. When the reported events took place between July 2016 and early 2017, the victim was a minor girl under 16 years of age. Therefore, the Court confirmed that the accused person was guilty under Section 5 of the POCSO Act, 2012, which is punishable under Section 6 of the Act. The Court observed, "This Court strongly believes that the legal team has been able to prove, with no real doubt, that the victim, who was under 16, was repeatedly sexually assaulted by her own stepfather soon after he became part of their family, and this happened in their shared home. The accused person also failed to prove false the legal assumption of guilt under Section 29 of the POCSO Act. Therefore, this Court finds nothing wrong or unlawful in the guilty verdict passed by the lower court against the accused person/stepfather for committing a crime under Section 5 of the POCSO Act, 2012, punishable under Section 6 of the Act." However, the Court noted that since the reported crime happened between July 2016 and April 2017, the accused person should be punished according to the older version of Section 6 of the POCSO Act, not the changed rules of Section 6 of the POCSO Act, which became active on August 16, 2019. This is based on Article 20 of the Constitution, which states that no one should receive a harsher punishment for a crime than what was allowed by the law that was active when the crime was committed. Accordingly, the Court ruled, "This Court sets aside The punishment given by the first court was found to be invalid and against the law. So, Ram Sevak Lohar is now sentenced for a crime that breaks Section 6 of the POCSO Act (a law protecting children) and Section 376 of the IPC (a law about sexual assault). He will go to a tough prison for fourteen years. He must also pay a fine of 50,000 rupees. If he does not pay the fine, he will spend an extra six months in tough prison. Any time Ram Sevak Lohar has already spent in jail before his conviction will be subtracted from his fourteen-year prison sentence. This is allowed by Section 428 of the Cr.P.C., which is the Code of Criminal Procedure.
1. This appeal is directed against the order of conviction and sentence passed by Special Judge (POCSO), Andaman and Nicobar Islands, Port Blair in Sessions Case No. 24 of 2017 on 06.11.2017, whereby the appellant has been convicted for commission of offence punishable under Section 6 of the POCSO Act, read with section 376 IPC and sentenced to suffer rigorous imprisonment for twenty-five years with fine of Rs. 1 Lakh and in default to suffer further simple imprisonment for one year for committing of offence under Section 5(j)(ii) of POCSO 2. In the present case the criminal proceeding against the Appellant perpetrator, who happens to be the step father of the prosecutrix has been set in motion on the initiative taken by PW3 Sister Rose Ann, sister-in-charge of Nirmala Shishu Bhawan, Port Blair (the Children’s Home of Missionaries of Charity for abandoned street babies and children or a shelter home or institution meant for minor children in need of care and protection) where the victim girl who was six months old pregnant was admitted by her own mother and the perpetrator- step father on 08.06.2017. 3. That Sister Ann on finding the victim to be a minor pregnant girl and on learning that she was impregnated by her own step father put criminal law in motion by informing the concerned authority i.e. Mr. P.C. James (PW10) Nodal Officer of Social Welfare Department and who in turn appears to have informed District Child Protection Unit, Port Blair. On receiving information from Mr. James, Dr. Sheetal Anup, DCPO, Port Blair along with child line workers Renu Singh and Suman Barla (PW2) proceeded to Nirmala Shishu Bhawan after informing Women Police Cell of Port Blair. That members of DCPU and lady police official of Women Police Cell, Port Blair after reaching the Children’s Home enquired the victim girl and who invariably told them that it was her step father who committed sexual offence/rape on her and which resulted in her pregnancy. Then they obtained a written complaint duly signed by the victim and on which the members of DCPU too have signed and forwarded the same to Aberdeen P.S. for taking necessary legal action. On receiving such complaint of victim from DCPU and official of police women cell, PW 12 Station Writer of Aberdeen PS started Zero FIR dated 15.06.2017 under Section 5(j)(ii)/6 of POCSO Act read with Section 376 IPC and transmitted the same to the Hutbay PS for initiating regular case or FIR. 4. PW13 Mohd. Mustafa, Head Moharar of Hutbay PS on receiving Zero FIR and on direction of PW 14 Inspector Bishal Ram registered Hutbay PS case No 44/17 dated 16.06.2017 under section 5(j)(ii)/6 of POCSO Act read with Section 376 IPC against the accused. PW 14 Inspector Bishal Ram, the then SHO of HutBay P.S. took up the investigation of the case suo moto and arrested the perpetrator the convict/accused. That on completion of investigation and having found sufficient materials against the accused for committing offence under section 5(j)(ii)/6 of POCSO Act read with Section 376 IPC submitted charge sheet under those sections. 5. From the above discussed facts, it appears when the mother of the victim found her eldest daughter was six months pregnant, instead of lodging any FIR against the actual perpetrator and without ascertaining the identity of actual perpetrator from the daughter seems to have brought the pregnant girl along with her second husband all the way from Hutbay to Port Blair and dumped her in a Children’s Shelter Home run by Missionaries of Charity. P.W.3 the Sister In-charge of the shelter home in her evidence has stated that parents of the victim were in hurry to catch return ship to HutBay from Port Blair and they just left behind the victim with an assurance to take her back after delivery. Such unusual conduct on the part of the biological mother of the victim gives rise to presumption that she was very much aware of the involvement of her second husband of few months in the crime and knew him to be the real perpetrator and thereby she wanted to give protection to him or she wanted to hush- up the entire incident just to save the family from being ostracized in the local community and/or to save her second marriage, and therefore, did not bother to lodge any FIR or find out from the daughter about the real culprit. 6. It is true the prosecution has failed to examine the mother of the victim who has been cited as a Charge Sheet witness No. 18, but non examination of the mother of the victim does not appear to be fatal to the prosecution case in view of the discussion to be followed. 7. Learned counsel appearing for the respondent contended conviction in rape case can be based on the sole testimony of victim that stands and is not countered. Non-examination of other witnesses per se cannot vitiate the prosecution case and referred to following decisions in support of her such contention: - a. State of Punjab vs. Gurmeet Singh reported in (1996) 2 SCC b. State of UP vs. Pappu reported in (2005) 3 SCC 594 c. Bipin Kumar Mondal vs. State of West Bengal reported in In fact, after going through the evidence which have come on record it appears the entire prosecution case lies on the sole evidence of the victim and DNA report of the child born to the victim. 8. It has been held by the Hon’ble Supreme Court of India in various decisions that barring serious exceptions, the evidence of victim of sexual assault is enough for conviction. A girl, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person’s lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. Maintaining that the sole and trust worthy evidence of a woman, who is a victim of a sexual offence, is enough to find her assailant guilty. An accused guilty for committing of offence of rape, the solitary evidence of the prosecutrix is sufficient, provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality. Further, it has been held rape is not mere physical assault but instead destroys the whole personality of the victim. The rapist degrades the very soul of the helpless female and therefore, the testimony of the prosecutrix must be appreciated on the background of the entire case, even if the mother turns hostile. 9. On this backdrop let me evaluate the evidence of the victim. The victim in her evidence-in-chief categorically reiterated what she has alleged in her FIR and in the statement recorded u/s 164 Cr.P.C. by learned Judicial Magistrate. Her evidence also shows that criminal motion against her step father started only after her admission in the shelter home and at the initiative taken by the sister in-charge of the home and other concerned authorities. She appears to have given her evidence before the Court after the delivery of child. She in her cross- examination categorically denied that she became pregnant as she had physical relationship with a boyfriend. Unfortunately, the defence/appellant has failed to bring on record the details and particulars of the alleged boyfriend of the victim or victim’s physical access to some other male at the relevant period of time. On the contrary, the victim in her evidence recorded under oath corroborated what she had alleged in the FIR and in her Section 164 Cr.P.C. statement recorded by Magistrate during investigation stage. In fact, no substantial materials have come during cross examination of the victim to shatter what she has stated in her chief or in the complaint/FIR and in her statement recorded under section 164 Cr.P.C. There is nothing to disbelieve the evidence given by the victim. 10. Exhibit 10, certificate of marriage, issued by Parish Priest of St. Anthony’s Church, Hutbay prima facie proves that Sunita Tigga, mother of the victim married Ram Sevak Lohar on 24 th June, 2016. The victim in her evidence both in chief and cross categorically stated that her father Christopher Tete died in the year 2010 and her mother married her perpetrator in the year 2016. That after marriage Ram Sevak Lohar started to reside with them in their house. Nothing has come on record from the side of defence to show that after marriage mother of the victim and her newly married husband resided in a separate house from the victim and her sister. In fact Exhibit 14, photographs of place of occurrence, and evidence of IO PW 14 show that accused used to live in Tsunami shelter having two rooms along with his newly married wife and her two daughters. The statement of the mother of the victim recorded by police under Section 161 Cr.P.C during investigation shows that the accused appellant is an ordinary resident of Bamboo flat. She was introduced with the accused by one of her friends who happens to be the relative of the accused. That after marriage the accused came to Hutbay and started living in her house. Such facts prima facie proves during the alleged occurrence the accused had access of the victim as they used to live in the same house. 11. The victim in her evidence has stated that sometime in the month of July, 2016 when her mother and sister were not at home at that time finding her alone in the house her step father made a sexual advance by touching sensitive parts of her body including her private part. On that day she objected and accused spared her, but she could not save herself from the lust of the accused on the subsequent occasions. Whenever her mother and sister used to be away from home, then the accused taking advantage of the situation raped and ravished her sexually on several occasions in between July, 2016 till she informed her mother about missing of her period. When she found her menstruation has stopped, she informed her mother who took her to the Hospital at Hutbay. On medical examination she was found six months pregnant and she was brought to Port Blair by her mother and step father and left her at Nirmala Shishu Bhawan. 12. It is true in the present case the prosecution has failed to examine the Doctor of Hutbay, who medically examined the victim and found her to be six months old pregnant, but non examination of such Doctor is not likely to affect the prosecution case as the fact remains that when the victim was admitted in Nirmala Shishu Bhawan on 08.06.2017 she was in advance stage of pregnancy and she delivered a baby boy at G.B. Pant Hospital on 09.08.2017. 13. It has been contended by Mr. Deep Chaim Kabir, learned counsel for the appellant appointed by the Court, if the victim was really raped by the accused and against her will then she could have raised hue and cry which could have come to the hearing of the persons residing adjacent to her house. He draws attention of the Court to the sketch map of the place of occurrence Exhibit 17 and Exhibit 14 the four photographs of the place of occurrence and which show the house of the grandmother of the victim is the adjacent room having common partition wall and house of PW4 and that of his brother K. Murugan is the next nearby house. 14. He further contended if the victim was really sexually ravished by the accused, then she could have informed about the incident to her own mother and sister. Failure on her part to disclose about the incident to her mother or to the person to whom she can confide raises an adverse inference against the victim. 15. It is true the victim in her evidence recorded by the Court invariably stated that she did not inform about the incident to any person including her mother and she did not even tell her mother that her step father was the one who made her pregnant out of fear. 16. For the sake of argument, even if we assume that victim is a consenting party to the sexual acts committed by her step father, the step father cannot evade the legal consequences for his misdeed as Exhibit 9, the birth certificate of the victim, shows she was born on 18.12.2001 and when the alleged incident took place in between July, 2016 to early part of 2017 the victim was a minor girl below 16 years of age. It is settled principle of law that a minor’s consent is no consent in eyes of law in rape cases. 17. In view of clause 6 of Section 375 IPC sexual intercourse with a girl not related as wife below 16 years is an offence of rape. No matter whether the victim girl consented or not consented to sexual intercourse. Even if the victim girl is not modest or is a willing party or even if she invited the accused to have the sexual intercourse with her, the act of sexual intercourse would be still be an offence. 18. The evidence of PW 5 Dr. Anthony who was posted as Medical Officer at PHC, Hutbay and PW 6 Jyoti Basu a Head Worker of PHC Hutbay in their evidence have stated that one Ram Sevak Lohar was brought to the PHC by police for medical examination on 16.06.2017. On medical examination the accused was found to be potent and capable to have sexual intercourse. That police made seizure of sample of pubic hair and penis swab of Ram Sevak Lohar collected in two test tubes under a seizure list in their presence and who identified their signatures on the seizure list and labels. Such evidence of Dr. Anthony proves that accused is sexually active and capable of having sexual intercourse. 19. It has been contended by the counsel for the appellant the conviction of the accused has been based on DNA report (Exhibit 19) of the child born to the victim on 09.08.2017 while she was staying in Children’s Shelter Home at Port Blair. But manner in which the sample was collected was not done scientifically and there is manipulation in the sample collected. He submitted that blood sample of the victim and that of the child were collected on 07.09.2017 and that of the accused was collected on 08.09.2017. DNA is at a molecular level and which renders it extremely fragile and subject to contamination. The samples were never packed, sealed and labelled properly. The FTA Card were simply put together and sent in an envelope to the lab and which had every chance of contamination at any point of time, with cross contact between the sample FTA Cards. CFSL Kolkata received the sample on 09.10.2017 and tested the same on 27.11.2017 to 30.11.2017. The long delays and gaps in between the collection and examination, there is every chance of sample being contaminated and as such the report cannot be relied on. 20. He further submits that doctor who collected the sample was not examined and even the Serologist/Forensic Scientist who did the DNA profiles of the blood sample collected from the victim, the child and the accused is not examined as a witness and as such the DNA profiles report cannot be taken into consideration. 21. It is true Dr. Ganesh Samadder, Chief Medical Officer, G.B Pant Hospital, Port Blair who collected the blood sample of the victim, the accused and the child born to the victim in presence of PW2 and Renu Singh, Member of DCPU were not examined by prosecution. But the victim and PW2 another member of DCPU, in their evidence have stated that blood sample was obtained at G.B. Pant Hospital on 07.09.2017. PW14 I.O. in his evidence stated that the samples were collected in the presence of independent witnesses and in whose presence, he made seizure of the same. Thereafter, he sent the sample to CFSL, Kolkata for DNA profile. 22. On the other hand, learned counsel for the State submitted DNA report is a conclusive proof and referred to Rajender Prasad Rao Wasnik Vs. State of Maharashtra reported in AIR 2019 SC 1. 23. PW15 Sub-Inspector M Sarvanand stated that he received the DNA report of the victim, accused and the child from Director CFSL, Kolkata. Thereafter, he submitted supplementary charge sheet on 30.01.2018. The DNA report along with forwarding letter has been marked collectively as Exhibit 19 and without examining the expert who did the DNA profiles test. This Court is of view non-examination of the expert is not likely to discard the evidentiary value of the DNA report in view of provision of Section 293 Cr.P.C. 24. Section 293 Cr.P.C deals with reports of certain Government, Scientific Experts and reads as follows: (1) Any document purporting to be a report under the hand of a Government scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this (2) The Court may, if it thinks fit, summon and examine any such expert as to the subject-matter of his report. (3) Where any such expert is summoned by a Court and he is unable to attend personally, he may, unless the Court has expressly directed him to appear personally, depute any responsible officer working with him to attend the Court, if such officer is conversant with the facts of the case and can satisfactorily depose in Court on his behalf. (4) This section applies to the following Government scientific experts, (a) any Chemical Examiner or Assistant Chemical Examiner to (b) the Chief Controller of Explosives; (d) the Director, Haffkeine Institute, Bombay; (e) the Director [, Deputy Director or Assistant Director] of a Central Forensic Science Laboratory or a State Forensic Science (f) the Serologist to the Government. (g) any other government Scientific Expert specified by notification, by the Central government for this purposed. 25. Sub-section (2) of Section 293 lays down that expert covered by this Section should not be examined as a matter of routine at the instance of a party. The Court has discretion in the matter and only when the court finds that it is expedient to do so in the interest of justice the expert should be summoned and the expert’s opinion should be tested by cross-examination. Summoning of an expert is within the discretionary power of the Court and such discretionary power is to be exercised depending on facts of each case. 26. It appears the accused or his counsel did not find necessary to examine the expert and they have failed to file any application challenging the DNA test report before the Trial Court before or after the same was marked as Exhibit 19 on production by PW 15. Therefore, this court is of view the accused cannot raise any objection against non examination of the expert at the appellate stage. Thus, this Court is of the view the learned Trial Court has rightly exercised discretion provided under Section 293 (2) Cr.P.C. 27. That apart, DNA profile test report being submitted by Central Forensic Laboratory, Kolkata a Government undertaking for conducting DNA test and as such it can be admitted in evidence without examination of the expert. 28. DNA test report confirm the accused Ram Sevak Lohar, the step father of the victim to be the father of the child born to the victim and leaves no room for doubt that the accused is the one who impregnated the victim by sexually abusing her. It appears the accused instead of becoming a guardian and protector of the minor children of his newly married wife made the victim, the eldest daughter of his wife, an object of his sexual pleasure and lust and that too within a month of his marriage. 29. Further, it has been urged by learned counsel for the accused the charge as framed against the accused is bad in law as in view of provision of Section 212 of Cr.P.C the time, date and place of occurrence needs to be specifically mentioned, but the charge which has been framed against the accused is silent about the particulars as to time date and place of the alleged offence. Defective framing of charge amounts to failure of justice in terms of Section 464 Cr.P.C and refers to Wille Slaney vs. State report in AIR 1956 SC 116. 30. From the lower court records it is revealed that the accused has failed to challenge the defect in the framing of charge before the Court below and allowed the trial to proceed against him on such charge. After holding him guilty of the charge he cannot raise such issue before the appellate Court. 31. He further contended the manner in which the accused has been examined under Section 313 Cr.P.C was done in a stereotype manner and failed to put question to the accused on the circumstances derived from the evidence and which has prejudiced the trial. He refers to Maheswar Tigga vs. State reported in AIR 2020 SC 4535 and Naval Kishor Singh vs. State reported in (2004) 7 SCC 502 to buttress his above argument. 32. Perused Section 313 Cr.P.C statement of the accused and this Court finds that the learned Court below has examined the accused on all the adverse circumstances and evidence which have come on record against him and accused appears to have given evasive replies to all those questions put to him. 33. Further, Section 29 of the Act provides that where a person is prosecuted for committing or abetting or attempting to commit any offence under Section 3, 5, 7 and 9 of this Act, the Special Court shall presume such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved. In the present case, the defence has failed to demolish the presumption by adducing defence witness or by producing substantial evidence to prove his innocence. No substantial materials have come in the cross-examination of prosecution witnesses including the victim to disbelieve the evidence which they have given in chief. 34. In view of the discussions and findings made above this Court is of the considered view that prosecution has been able to prove that the victim who was below 16 years was subjected to penetrative sexual assault repeatedly by her own step father immediately after becoming a member or part of their family and that too in their shared household beyond all reasonable doubt and accused has failed to rebut the presumption under Section 29 of the POCSO Act. Accordingly, this Court does not find any illegality or infirmity in the judgement of conviction passed by the learned Trial Court against the accused/appellant for committing offence under Section 5 of POCSO Act, 2012 punishable under Section 6 of the Act. 35. However, this Court finds that the learned Court below while passing the sentence has overlooked the fact that occurrence having taken place sometime in the year 2016 and 2017 prior to the amendment in Section 6 of POCSO Act, by Amendment Act 25 of 2019 and which has been given effect from 16.08.2019 has sentenced the accused by invoking the amended provision of section 6 of the Act and thereby sentenced the accused to suffer rigorous imprisonment for a term of twenty five years and fine of Rs.1 Lakh and in default to suffer S.I. for another one year. 36. Section 6 of the POCSO Act prior to amendment which has taken effect from 16.08.2019 read as: “Punishment for aggravated penetrative sexual assault. - Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine.” The amended Section 6 of the POCSO Act reads as follows. - 1) Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person, and shall also be liable to fine or with death. (2) The fine impose under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim.” 37. In view of Article 20 of the Constitution of India no one shall be subjected to a greater penalty for an offence than what was provided under the law in force when the offence was committed. The expression law in force refers to the law factually in operation at the time when the offence was committed and does not relate to a law subsequently made. 38. In the present case the alleged offence having taken place in between July, 2016 to April, 2017 and in view of provision of Article 20 of the Constitution of India, the accused is liable to be sentenced as per the original provision of Section 6 of the POCSO Act and not as per the amended provisions of Section 6 of the POCSO Act, which came into effect from 16.08.2019. 39. That apart no materials have come on record to show any criminal antecedents of the appellant or his involvement in similar offences earlier. The victim in her evidence has admitted that she has not heard about Ram Savek Lohar committing offence of sexual assault on any other person. 40. Therefore, this Court sets aside the sentence imposed by the Trial Court being void and illegal and hereby sentences the accused Ram Sevak Lohar for committing offence punishable under Section 6 of the POCSO Act read with Section 376 IPC with rigorous imprisonment for fourteen years and fine of Rs. 50,000/- and in default R.I. for another six months. The period of detention undergone by the accused is subject to set-off against the sentence of imprisonment under Section 428 of Cr.P.C. 41. Let copy of this judgement be supplied free of cost to the accused/convict. 42. Accordingly, CRA 12 of 2021 is disposed of and connected application is also disposed of. 43. Let the lower court records be sent down along with the copy of this judgement immediately. 44. All parties to act in terms of the copy of the order downloaded from the official website of this Court. 45. Urgent certified copy of this order if applied for may be supplied to the parties upon compliance of usual formalities. 46. I have had the pleasure of perusing the judgement craftily penned by my sister judge and I am completely at consensus ad idem with her. The present case is one where the prosecution has laid the foundations as required under Section 29 of the POCSO Act, 2012. It is a fountain that has not been repelled or shattered in any manner by the defence. On a perusal of the evidence, it is clear that the defence could not bring any credible witness to rebut the presumption and foundation of the prosecutors’ case. The arguments and submissions made by Mr. Kabir, amicus curiae appointed by this court, especially with regard to the procedure for handling the DNA samples is commendable. However, since the sole testimony of the victim has stood steadfast and unblemished, one can clearly hold that the case of the prosecution has been proved beyond reasonable doubt. 47. We would like to thank the counsel appearing on behalf of both the parties for diligently putting forward their arguments. It is evident from the judgements cited and arguments put forward by the counsel appearing on behalf of both the parties that pain-staking efforts have been undertaken by them. In conclusion, I wholeheartedly subscribe to the view taken by my learned sister judge and agree with the judgement passed by her.
The Calcutta High Court stated on Friday that just the word of a sexual assault victim is enough to find someone guilty. The Court also said that a victim's statement should not be doubted as much as the statement of someone who helped commit the crime. Two judges, Justice Shekhar B. Saraf and Justice Kesang Doma Bhutia, noted that the Supreme Court has often ruled that, except in very serious cases, a sexual assault victim's statement alone is enough to lead to a guilty verdict. The Court stressed that a sexual assault victim's statement should not be doubted as much as that of someone who helped commit the crime. The Court explained, "A girl who is a victim of sexual assault is not someone who helped with the crime, but is suffering because of another person's bad intentions. Therefore, her statement should not be doubted as much as an accomplice's. The reliable statement of a woman who is a victim of a sexual crime is enough to find her attacker guilty. For someone accused of rape, the victim's single statement is enough, as long as it seems believable, completely trustworthy, perfect, and of very high quality." The Court also observed that a statement from a minor sexual assault victim must be judged carefully, considering everything about the case. It was noted that even if the victim's mother changes her mind or refuses to cooperate, the victim's own reliable statement can still be enough to get a guilty verdict. The Court further stated, "Rape is not just a physical attack; it deeply harms the victim's entire personality. The rapist deeply damages the victim's spirit. So, the victim's statement must be looked at in the context of the whole case, even if the mother doesn't cooperate." **Background** This case was an appeal challenging a decision from November 6, 2017. In that decision, a lower court had found the accused person guilty of a serious sexual assault involving penetration, under Section 6 of the POCSO Act (Protection of Children from Sexual Offences), and rape, under Section 376 of the IPC (Indian Penal Code). The accused person, who is the victim's stepfather, had raped the minor girl many times between July 2016 until she told her mother about her period being late. The stepfather would rape the minor victim whenever her mother and sister were not home. After being told, the minor victim's mother took her to a hospital. A medical check-up showed she was six months pregnant. As a result, the mother and stepfather placed the minor victim in Nirmala Shishu Bhawan, a children's home in Port Blair, on June 8, 2017. They promised to take her back after she gave birth. When the staff at the Children's Home found out the minor victim was pregnant and learned that her stepfather had gotten her pregnant, the Sister-in-charge started the legal process. She informed the Nodal Officer of the Social Welfare Department, who then informed the District Child Protection Unit (DCPU) in Port Blair. Members of the DCPU and a female police officer from the Women Police Cell in Port Blair then spoke to the victim. She consistently told them that her stepfather had committed the sexual crime against her. They then got a written complaint, properly signed by the victim and also by the DCPU members. This complaint was later sent to the police station to start legal action. Afterward, an initial police report (a zero FIR) was filed on June 5, 2017. It was filed under Section 5(j)(ii)/6 of the POCSO Act (for serious sexual assault involving penetration) and Section 376 of the IPC (for rape). **Observations** Right away, the Court strongly criticized the victim's biological mother for her involvement and for not filing a police report against the stepfather. She did this to try and save her second marriage. The Court observed, "Such unusual behavior from the victim's biological mother suggests that she knew her second husband of only a few months was involved in the crime and knew he was the real attacker. She wanted to protect him or keep the whole incident quiet to save the family from being shunned in the local community, or to save her second marriage. So, she did not bother to file a police report or ask her daughter about the real culprit." After carefully looking at the minor victim's evidence, the Court found no reason to not believe what the victim said. The Court noted that in her main statement in court, the victim clearly repeated what she had claimed in her initial police report and in the statement she gave to a judge during the investigation. The Court also considered that the minor, when questioned by the defense lawyer, clearly denied that she became pregnant because of an alleged physical relationship with a boyfriend. The Court stated, "Unfortunately, the defense and the accused person failed to provide any specific information about the victim's alleged boyfriend or if the victim had contact with any other male during the time the crime happened. Instead, the victim, in her sworn statement, confirmed what she had claimed in the initial police report and in her statement recorded by a judge during the investigation. In fact, nothing important came up during the victim's cross-examination to break down what she had said in her main statement or in her complaint/police report and her statement recorded by a judge." The Court also stressed that it does not matter if the minor victim consented or did not consent to the sexual act. This is because Section 376 of the IPC states that sexual acts with a girl under 16 years old, who is not a wife, is considered the crime of rape. It is an established legal rule that a minor's consent is not legally valid in rape cases, the Court further stated. The Court noted that in this case, the minor victim was born on December 18, 2001. When the reported events took place between July 2016 and early 2017, the victim was a minor girl under 16 years of age. Therefore, the Court confirmed that the accused person was guilty under Section 5 of the POCSO Act, 2012, which is punishable under Section 6 of the Act. The Court observed, "This Court strongly believes that the legal team has been able to prove, with no real doubt, that the victim, who was under 16, was repeatedly sexually assaulted by her own stepfather soon after he became part of their family, and this happened in their shared home. The accused person also failed to prove false the legal assumption of guilt under Section 29 of the POCSO Act. Therefore, this Court finds nothing wrong or unlawful in the guilty verdict passed by the lower court against the accused person/stepfather for committing a crime under Section 5 of the POCSO Act, 2012, punishable under Section 6 of the Act." However, the Court noted that since the reported crime happened between July 2016 and April 2017, the accused person should be punished according to the older version of Section 6 of the POCSO Act, not the changed rules of Section 6 of the POCSO Act, which became active on August 16, 2019. This is based on Article 20 of the Constitution, which states that no one should receive a harsher punishment for a crime than what was allowed by the law that was active when the crime was committed. Accordingly, the Court ruled, "This Court sets aside The punishment given by the first court was found to be invalid and against the law. So, Ram Sevak Lohar is now sentenced for a crime that breaks Section 6 of the POCSO Act (a law protecting children) and Section 376 of the IPC (a law about sexual assault). He will go to a tough prison for fourteen years. He must also pay a fine of 50,000 rupees. If he does not pay the fine, he will spend an extra six months in tough prison. Any time Ram Sevak Lohar has already spent in jail before his conviction will be subtracted from his fourteen-year prison sentence. This is allowed by Section 428 of the Cr.P.C., which is the Code of Criminal Procedure.
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4. The learned advocate for the petitioner – original defendant No. 2 submitted that the respondent No. 1 – original plaintiff has filed a suit being Regular Civil Suit No. 50 of 2018 before the concerned Civil Court at Bodeli for declaration and permanent injunction and partition in respect of the suit property being agricultural land bearing survey Nos. 123, 127, 196, 240, 244 and others, situated at Village: Nava Timberva, Taluka: Bodeli, District: Chhotaudepur. In the said suit, the petitioner – defendant No. 2 was duly served with the summons, however, could not file his written statement in time and hence, the learned Civil Court concerned, closed the right of the petitioner to file the written statement. Against which, an application Exh. 18 was preferred by the petitioner, which came to be rejected vide order dated 21.08.2019, observing therein that, filing of written statement after a period of 120 days is not permissible. Against the said order, the petitioner preferred Misc. Civil Appeal No. 27 of 2019, which also came to be rejected by the learned Additional District Judge, Chhotaudepur vide order dated 13.01.2020 on the ground of maintainability of the said appeal as well as on merits. 4.1 The learned advocate for the petitioner submitted that the learned trial Judge has wrongly applied the decisions of the Apex Court. The learned advocate, relying upon the decision of the Apex Court in Salem Advocate Bar Association, Tamil Nadu v. Respondent:Union of India (UOI), MANU/SC/0450/2005, he submitted that, as directed by the Apex Court, the period of 120 days is directory and not mandatory. 4.2 The learned advocate for the petitioner further submitted that the trial of the suit is yet to be commenced and the suit is at the stage of deciding the Exh. 5 application only and in the circumstance, allowing to file the written statement per se would not affect the right of the plaintiff in any way. The learned advocate for the petitioner, referring to the copies of death certificates produced on record, submitted that out of all the defendants, the defendant Nos. 1 and 3 have expired and their legal heirs are also required to be brought on record of the suit and in the circumstance, rejection of the said application would certainly jeopardize the right of the defendants. Besides, due to prevalent pandemic situation and the restriction therefor also, the petitioner could not pursue the matter. 4.3 The learned advocate for the petitioner, on instructions, submitted that the petitioner – defendant is ready and willing to pay the cost as may be imposed by the Court and accordingly, making such submissions, it is urged that this writ petition may be allowed, setting aside the impugned orders and the petitioner may be permitted to file the written statement in the pending 5. It may be reiterated that though served and although sufficient opportunity is given to the respondents, no one has put in appearance. 6. Regard being had to the submissions advanced and perusing the material placed on record, it appears that against the orders passed by two learned Courts below, rejecting to open the right of the defendant to file the written statement in the pending suit, present writ petition has been filed. 6.1 In this regard, if the relevant provisions as regards the written statement is referred to in the CPC under O. VIII, the “Written Statement.—The Defendant shall, within thirty days from the date of service of summons on him, present Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons. Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the written statement on such other day, as may be specified by the Court, for reasons to be recorded in writing and on payment of such costs as the Court deems fit, but which shall not be later than one hundred twenty days from the date of service of summons and on expiry of one hundred twenty days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the Court shall not allow the written statement to be taken on record.” 6.2 Thus, by virtue of the aforesaid provision, the Court may, for the reasons to be recorded in writing, and on payment of such costs as the Court deems fit, allow the defendant to file the written statement on such other day, but which shall not be later than one hundred twenty days from the date of service of summons and on expiry of one hundred twenty days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the Court shall not allow the written statement to be taken on record. The learned advocate for the petitioner has relied upon the decision of the Apex Court “(d) Order VIII, Rule 1--Amendment by Act 46 of 1999 providing that defendant shall within 30 days from date of service of summons on him, present written statement of his defence--Court can extend time for filing written statement upto 90 days--Whether Court has power or jurisdiction to extend period beyond 90 days?--Held, "yes"--Provision providing for maximum period of 90 days is not mandatory but only directory. The use of the word 'shall' in Order VIII, Rule 1 by itself is not conclusive to determine whether the provision is mandatory or directory. We have to ascertain the object which is required to be served by this provision and its design and context in which it is enacted. The use of the word 'shall' is ordinarily indicative of mandatory nature of the provision but having regard to the context in which it is used or having regard to the intention of the legislation, the same can be construed as directory. The rule in question has to advance the cause of justice and not to defeat it. The rules of procedure are made to advance the cause of justice and not to defeat it. Construction of the rule or procedure which promotes justice and prevents miscarriage has to be preferred. The rules or procedure are hand-maid of justice and not its mistress. In the present context, the strict interpretation would defeat justice. The maximum period of 90 days to file written statement has been provided but the consequences on failure to file written statement within the said period have not been provided for in Order VIII, Rule 1. In construing this provision, support can also be had from Order VIII, Rule 10 which provides that where any party from whom a written statement is required under Rule 1 or Rule 9, fails to present the same within the time permitted or fixed by the Court, the Court shall pronounce judgment against him, or make such other order in relation to the suit as it thinks fit. On failure to file written statement under this provision, the Court has been given the discretion either to pronounce judgment against the defendant or make such other order in relation to suit as it thinks fit. In the context of the provision, despite use of the word 'shall', the Court has been given the discretion to pronounce or not to pronounce the judgment against the defendant even if written statement is not filed and instead pass such order as it may think fit in relation to the suit. In construing the provision of Order VIII, Rule 1 and Rule 10, the doctrine of harmonious construction is required to be applied. The effect would be that under Rule 10 of Order VIII, the Court in its discretion would have power to allow the defendant to file written statement even after expiry of period of 90 days provided in Order VIII, Rule 1. There is no restriction in Order VIII, Rule 10 that after expiry of ninety days, further time cannot be granted. The Court has wide power to 'make such order in relation to the suit as it thinks fit'. Clearly, therefore, the provision of Order VIII, Rule 1 providing for upper limit of 90 days to file written statement is directory. However, the order extending time to file written statement cannot be made in routine. The time can be extended only in exceptionally hard cases. While extending time, it has to be borne in mind that the Legislature has fixed the upper time limit of 90 days. The discretion of the Court to extend the time shall not be so frequently and routinely exercised so as to nullify the period fixed by Order VIII, Rule 1.” 6.3 Thus, the provision providing for maximum period of 90 days is not mandatory but only directory, however, exercise of discretion should not be a routine course and such powers should be exercised sparingly and in appropriate cases. 6.4 Further, as the facts go, the trial in the suit is yet to be commenced and the suit is pending at the stage of deciding application Exh. 5 and accordingly, considering the submissions made by the learned advocate for the petitioner so also considering the extant pandemic situation and the fact that allowing the petitioner to file the written statement may not prejudiciously affect to the other side and also with a view to see that the suit in question be decided on merits and in the interest of justice, the petition deserves favourable consideration, however, with exemplary cost. 7. In view of the above, this writ petition is allowed. The order dated dated 21.08.2019 passed by the learned Additional Civil Judge, Bodeli in the application Exh. 18 in Regular Civil Suit No. 50 of 2018 and the order dated 13.01.2020 passed by the learned Additional District Judge, Chhotaudepur below Exh. 6 in Misc. Civil Appeal No. 27 of 2019 are hereby set aside. The petitioner is permitted to file the written statement, which shall be filed within a period of 15 days and subject to payment of cost of Rs.10,000/- (Rupees Ten Thousand only), which shall be deposited before the trial Court concerned within 10 days and the trial Court concerned shall permit the original plaintiff to withdraw the same, on due verification and following due procedure. Rule is made absolute accordingly. 7.1 It is made clear that this order is passed in the peculiar facts and circumstances of the case and shall not be treated as precedent in any other case.
The Gujarat High Court, with Justice Ashok Kumar Joshi, has made a key decision about court rules. There's a rule, Order VIII Rule 1, that sets a 90-day limit for filing a 'written statement,' which is a defendant's written response to a lawsuit. The court decided this 90-day limit is a guideline, not a strict rule. This means courts *can* sometimes allow a defendant more time. However, judges should be careful with this power and not give extra time all the time. **Background** The defendant (the person being sued) had asked a higher court to overturn rulings from a lower court judge and another judge called the ADJ. These earlier rulings had prevented the defendant from filing their written statement in a lawsuit. This case was about how to divide shared property. The defendant had gotten the official court notice correctly but didn't file their written statement on time. The ADJ had previously said that a written statement could not be filed if it was over 120 days late. The defendant argued that, according to a previous Supreme Court decision, the 120-day limit for filing a written statement was only a guideline, not a strict rule. They also said that the main trial hadn't even begun yet, so filing the statement now wouldn't hurt the plaintiff's (the person suing) rights. In addition, two other defendants had died, and their legal heirs (their lawful successors) hadn't been officially included in the case. Therefore, not allowing the written statement would unfairly harm the defendants' rights. The defendant also explained the delay was due to the COVID-19 pandemic and its restrictions. Finally, they offered to cover any court fees for filing their written statement late. **Judgement** When the judge looked closely at Order VIII Rule 1, he noted something key. He pointed out that the word 'shall' usually means a rule is mandatory (strictly required). However, for this specific rule, the 90-day time period is only a guideline. The previous Supreme Court decision in Salem Advocate also confirmed this. The court also mentioned that it's a well-known principle that court rules are meant to help justice, not stop it. The judge stated: "The rules or procedure are hand-maid of justice and not its mistress. In the present context, the strict interpretation would defeat justice." To support this way of thinking, the judge also looked at Order VIII Rule 1 and another rule, Order VIII Rule 10, to see how they work together. Rule 10 states that if a defendant fails to file their written statement, the court can either rule against them or make any other fitting decision for the case. This shows that Order VIII Rule 10 doesn't strictly prevent giving more time, even after the initial 90 days. However, such extensions should only be given in 'very difficult cases.' Courts should not just ignore the time limit by giving extensions too often. Lastly, because the main trial had not yet started, and considering the COVID-19 pandemic and its restrictions, giving more time would not unfairly hurt the plaintiff's rights. Therefore, the defendant's request (called a writ petition) was approved. However, the defendant also had to pay a sizeable penalty.
4. The learned advocate for the petitioner – original defendant No. 2 submitted that the respondent No. 1 – original plaintiff has filed a suit being Regular Civil Suit No. 50 of 2018 before the concerned Civil Court at Bodeli for declaration and permanent injunction and partition in respect of the suit property being agricultural land bearing survey Nos. 123, 127, 196, 240, 244 and others, situated at Village: Nava Timberva, Taluka: Bodeli, District: Chhotaudepur. In the said suit, the petitioner – defendant No. 2 was duly served with the summons, however, could not file his written statement in time and hence, the learned Civil Court concerned, closed the right of the petitioner to file the written statement. Against which, an application Exh. 18 was preferred by the petitioner, which came to be rejected vide order dated 21.08.2019, observing therein that, filing of written statement after a period of 120 days is not permissible. Against the said order, the petitioner preferred Misc. Civil Appeal No. 27 of 2019, which also came to be rejected by the learned Additional District Judge, Chhotaudepur vide order dated 13.01.2020 on the ground of maintainability of the said appeal as well as on merits. 4.1 The learned advocate for the petitioner submitted that the learned trial Judge has wrongly applied the decisions of the Apex Court. The learned advocate, relying upon the decision of the Apex Court in Salem Advocate Bar Association, Tamil Nadu v. Respondent:Union of India (UOI), MANU/SC/0450/2005, he submitted that, as directed by the Apex Court, the period of 120 days is directory and not mandatory. 4.2 The learned advocate for the petitioner further submitted that the trial of the suit is yet to be commenced and the suit is at the stage of deciding the Exh. 5 application only and in the circumstance, allowing to file the written statement per se would not affect the right of the plaintiff in any way. The learned advocate for the petitioner, referring to the copies of death certificates produced on record, submitted that out of all the defendants, the defendant Nos. 1 and 3 have expired and their legal heirs are also required to be brought on record of the suit and in the circumstance, rejection of the said application would certainly jeopardize the right of the defendants. Besides, due to prevalent pandemic situation and the restriction therefor also, the petitioner could not pursue the matter. 4.3 The learned advocate for the petitioner, on instructions, submitted that the petitioner – defendant is ready and willing to pay the cost as may be imposed by the Court and accordingly, making such submissions, it is urged that this writ petition may be allowed, setting aside the impugned orders and the petitioner may be permitted to file the written statement in the pending 5. It may be reiterated that though served and although sufficient opportunity is given to the respondents, no one has put in appearance. 6. Regard being had to the submissions advanced and perusing the material placed on record, it appears that against the orders passed by two learned Courts below, rejecting to open the right of the defendant to file the written statement in the pending suit, present writ petition has been filed. 6.1 In this regard, if the relevant provisions as regards the written statement is referred to in the CPC under O. VIII, the “Written Statement.—The Defendant shall, within thirty days from the date of service of summons on him, present Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons. Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the written statement on such other day, as may be specified by the Court, for reasons to be recorded in writing and on payment of such costs as the Court deems fit, but which shall not be later than one hundred twenty days from the date of service of summons and on expiry of one hundred twenty days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the Court shall not allow the written statement to be taken on record.” 6.2 Thus, by virtue of the aforesaid provision, the Court may, for the reasons to be recorded in writing, and on payment of such costs as the Court deems fit, allow the defendant to file the written statement on such other day, but which shall not be later than one hundred twenty days from the date of service of summons and on expiry of one hundred twenty days from the date of service of summons, the defendant shall forfeit the right to file the written statement and the Court shall not allow the written statement to be taken on record. The learned advocate for the petitioner has relied upon the decision of the Apex Court “(d) Order VIII, Rule 1--Amendment by Act 46 of 1999 providing that defendant shall within 30 days from date of service of summons on him, present written statement of his defence--Court can extend time for filing written statement upto 90 days--Whether Court has power or jurisdiction to extend period beyond 90 days?--Held, "yes"--Provision providing for maximum period of 90 days is not mandatory but only directory. The use of the word 'shall' in Order VIII, Rule 1 by itself is not conclusive to determine whether the provision is mandatory or directory. We have to ascertain the object which is required to be served by this provision and its design and context in which it is enacted. The use of the word 'shall' is ordinarily indicative of mandatory nature of the provision but having regard to the context in which it is used or having regard to the intention of the legislation, the same can be construed as directory. The rule in question has to advance the cause of justice and not to defeat it. The rules of procedure are made to advance the cause of justice and not to defeat it. Construction of the rule or procedure which promotes justice and prevents miscarriage has to be preferred. The rules or procedure are hand-maid of justice and not its mistress. In the present context, the strict interpretation would defeat justice. The maximum period of 90 days to file written statement has been provided but the consequences on failure to file written statement within the said period have not been provided for in Order VIII, Rule 1. In construing this provision, support can also be had from Order VIII, Rule 10 which provides that where any party from whom a written statement is required under Rule 1 or Rule 9, fails to present the same within the time permitted or fixed by the Court, the Court shall pronounce judgment against him, or make such other order in relation to the suit as it thinks fit. On failure to file written statement under this provision, the Court has been given the discretion either to pronounce judgment against the defendant or make such other order in relation to suit as it thinks fit. In the context of the provision, despite use of the word 'shall', the Court has been given the discretion to pronounce or not to pronounce the judgment against the defendant even if written statement is not filed and instead pass such order as it may think fit in relation to the suit. In construing the provision of Order VIII, Rule 1 and Rule 10, the doctrine of harmonious construction is required to be applied. The effect would be that under Rule 10 of Order VIII, the Court in its discretion would have power to allow the defendant to file written statement even after expiry of period of 90 days provided in Order VIII, Rule 1. There is no restriction in Order VIII, Rule 10 that after expiry of ninety days, further time cannot be granted. The Court has wide power to 'make such order in relation to the suit as it thinks fit'. Clearly, therefore, the provision of Order VIII, Rule 1 providing for upper limit of 90 days to file written statement is directory. However, the order extending time to file written statement cannot be made in routine. The time can be extended only in exceptionally hard cases. While extending time, it has to be borne in mind that the Legislature has fixed the upper time limit of 90 days. The discretion of the Court to extend the time shall not be so frequently and routinely exercised so as to nullify the period fixed by Order VIII, Rule 1.” 6.3 Thus, the provision providing for maximum period of 90 days is not mandatory but only directory, however, exercise of discretion should not be a routine course and such powers should be exercised sparingly and in appropriate cases. 6.4 Further, as the facts go, the trial in the suit is yet to be commenced and the suit is pending at the stage of deciding application Exh. 5 and accordingly, considering the submissions made by the learned advocate for the petitioner so also considering the extant pandemic situation and the fact that allowing the petitioner to file the written statement may not prejudiciously affect to the other side and also with a view to see that the suit in question be decided on merits and in the interest of justice, the petition deserves favourable consideration, however, with exemplary cost. 7. In view of the above, this writ petition is allowed. The order dated dated 21.08.2019 passed by the learned Additional Civil Judge, Bodeli in the application Exh. 18 in Regular Civil Suit No. 50 of 2018 and the order dated 13.01.2020 passed by the learned Additional District Judge, Chhotaudepur below Exh. 6 in Misc. Civil Appeal No. 27 of 2019 are hereby set aside. The petitioner is permitted to file the written statement, which shall be filed within a period of 15 days and subject to payment of cost of Rs.10,000/- (Rupees Ten Thousand only), which shall be deposited before the trial Court concerned within 10 days and the trial Court concerned shall permit the original plaintiff to withdraw the same, on due verification and following due procedure. Rule is made absolute accordingly. 7.1 It is made clear that this order is passed in the peculiar facts and circumstances of the case and shall not be treated as precedent in any other case.
The Gujarat High Court, with Justice Ashok Kumar Joshi, has made a key decision about court rules. There's a rule, Order VIII Rule 1, that sets a 90-day limit for filing a 'written statement,' which is a defendant's written response to a lawsuit. The court decided this 90-day limit is a guideline, not a strict rule. This means courts *can* sometimes allow a defendant more time. However, judges should be careful with this power and not give extra time all the time. **Background** The defendant (the person being sued) had asked a higher court to overturn rulings from a lower court judge and another judge called the ADJ. These earlier rulings had prevented the defendant from filing their written statement in a lawsuit. This case was about how to divide shared property. The defendant had gotten the official court notice correctly but didn't file their written statement on time. The ADJ had previously said that a written statement could not be filed if it was over 120 days late. The defendant argued that, according to a previous Supreme Court decision, the 120-day limit for filing a written statement was only a guideline, not a strict rule. They also said that the main trial hadn't even begun yet, so filing the statement now wouldn't hurt the plaintiff's (the person suing) rights. In addition, two other defendants had died, and their legal heirs (their lawful successors) hadn't been officially included in the case. Therefore, not allowing the written statement would unfairly harm the defendants' rights. The defendant also explained the delay was due to the COVID-19 pandemic and its restrictions. Finally, they offered to cover any court fees for filing their written statement late. **Judgement** When the judge looked closely at Order VIII Rule 1, he noted something key. He pointed out that the word 'shall' usually means a rule is mandatory (strictly required). However, for this specific rule, the 90-day time period is only a guideline. The previous Supreme Court decision in Salem Advocate also confirmed this. The court also mentioned that it's a well-known principle that court rules are meant to help justice, not stop it. The judge stated: "The rules or procedure are hand-maid of justice and not its mistress. In the present context, the strict interpretation would defeat justice." To support this way of thinking, the judge also looked at Order VIII Rule 1 and another rule, Order VIII Rule 10, to see how they work together. Rule 10 states that if a defendant fails to file their written statement, the court can either rule against them or make any other fitting decision for the case. This shows that Order VIII Rule 10 doesn't strictly prevent giving more time, even after the initial 90 days. However, such extensions should only be given in 'very difficult cases.' Courts should not just ignore the time limit by giving extensions too often. Lastly, because the main trial had not yet started, and considering the COVID-19 pandemic and its restrictions, giving more time would not unfairly hurt the plaintiff's rights. Therefore, the defendant's request (called a writ petition) was approved. However, the defendant also had to pay a sizeable penalty.
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1. The technological age has produced digital platforms – not like the railway platforms where trains were regulated on arrival and departure. These digital platforms can be imminently uncontrollable at times and carry their own challenges. One form of digital platforms are the intermediaries that claim to be providing a platform for exchange of ideas without any contribution of their own. It is their say that they are not responsible for all that transpires on their platform; though on complaints being made, they do remove offensive content based on their internal guidelines. The power and potentiality of these intermediaries is vast, running across borders. These are multinational corporations with large wealth and influence at their command. By the very reason of the platform they provide, their influence extends over populations across borders. Facebook is one such corporation. 2. A testament to the wide-ranging services which Facebook offers is 1 “Preface”; See A. M. Singhvi et. al., The Law of Emergency Powers – the fact that it has about 2.85 billion monthly active users as of March, 2021.2 This is over 1/3rd of the total population of this planet. In the national context, Facebook is the most popular social media platform in India with about 270 million registered users. Such vast powers must necessarily come with responsibility. Entities like Facebook have to remain accountable to those who entrust them with such power. While Facebook has played a crucial role in enabling free speech by providing a voice to the voiceless and a means to escape state censorship, we cannot lose sight of the fact that it has simultaneously become a platform for disruptive messages, voices, and ideologies. The successful functioning of a liberal democracy can only be ensured when citizens are able to make informed decisions. Such decisions have to be made keeping in mind a plurality of perspectives and ideas. The information explosion in the digital age is capable of creating new challenges that are insidiously modulating the debate on issues where opinions can be vastly divided. Thus, while social media, on the one hand, is enhancing equal and open dialogue between citizens and policy makers; on the other hand, it has become a tool in the hands of various interest groups who have 2 Facebook, Press Release, Facebook reports 1st Quarter 2021 Results, (2021) accessible at https://www.prnewswire.com/news-releases/facebook-reports-first- recognised its disruptive potential. This results in a paradoxical outcome where extremist views are peddled into the mainstream, thereby spreading misinformation. Established independent democracies are seeing the effect of such ripples across the globe and are concerned. Election and voting processes, the very foundation of a democratic government, stand threatened by social media manipulation. This has given rise to significant debates about the increasing concentration of power in platforms like Facebook, more so as they are said to employ business models that are privacy-intrusive and attention soliciting. 3 The effect on a stable society can be cataclysmic with citizens being ‘polarized and parlayzed’ by such “debates”, dividing the society vertically. Less informed individuals might have a tendency to not verify information sourced from friends, or to treat information received from populist leaders as the gospel truth. 3. It is interesting to note that the Oxford Dictionary in 2016 chose “Post-Truth” as the word of the year. The adjective has been defined as “relating to or denoting circumstances in which objective facts are less 3 UNESCO, Concept Note, Media for Democracy, Journalism and Elections in times of Misinformation, (2019) accessible at: influential in shaping public opinion than appeals to emotion and personal belief.”4 This expression has a period relevance when it came to be recognised contextually with divided debates about the 2016 US Presidential Elections and Brexit – two important events with effects beyond their territorial limits. The obfuscation of facts, abandonment of evidentiary standards in reasoning, and outright lying in the public sphere left many aghast. A lot of blame was sought to be placed at the door of social media, it being a source of this evolving contemporary phenomenon where objective truth is becoming a commodity with diminishing value. George Orwell, in his 1943 essay titled “Looking Back on the Spanish War” had expressed “…the very concept of objective truth is fading out of the world. After all, the chances are that those lies, or at any rate similar lies will pass into history”5 – the words have proved to be prophetic. 4. In the conspectus of the aforesaid, it is difficult to accept the simplistic approach adopted by Facebook - that it is merely a platform posting third party information and has no role in generating, controlling 4 Oxford Dictionary Word of the Year 2016, accessible at: 5 See K. Gessen, Introduction, 26, in All Art Is Propaganda: Critical Essays (G. Orwell et. al., 2008). or modulating that information. The endeavour to hide behind such simplistic models have been found to be unacceptable by the UK Parliament. The House of Commons Digital, Culture, Media and Sport Select Committee in its 2018 Report had opined that this would amount to shirking of their responsibilities with respect to content regulation on 5. Serious questions have been raised about whether there is a faulty architecture of such intermediary platforms and whether the kind of free, liberal debate which they sought to encourage has itself become a casualty, defeating the very objective of providing that platform. It is too late in the day for companies like Facebook to deny that they use algorithms (which are sequences of instructions) with some human intervention to personalise content and news to target users. The algorithms select the content based on several factors including social connections, location, and past online activity of the user. These algorithms are often far from objective with biases capable of getting 6 Digital, Culture, Media and Sport Committee, U.K. House of Commons, Disinformation and 'fake news': Final Report, 20-44 (18/02/2019), accessible at: replicated and reinforced. The role played by Facebook is, thus, more active and not as innocuous as is often presented when dealing with third party content. 6. In fact, in the proceedings before us, it is their contention that there are times when they are at the receiving end of both groups alleging bias towards the other but then this is a sequitur to their ability to decide which content to amplify, suggest, and elevate. Internationally, Facebook has had to recognise its role in failing to prevent division and incitement of offline violence in the context of the stated ethnic cleansing in Myanmar where a crescendo of misinformation and posts, somehow missed by Facebook employees, helped fuel the violence. 7 The platform similarly apologised for its lack of serious response to evident signs of abuse of the platform in Sri Lanka, which again is stated to have stoked widespread violence in 2018 in the country and had to acknowledge its need to be regulated though the exact method is still unclear and a prerogative of law making authority. 7 Facebook admits it was used to 'incite offline violence' in Myanmar , BBC (06/11/2018), accessible at: https://www.bbc.com/news/world-asia-46105934. Joshua Brustein, Facebook Apologizes for Role in Sri Lankan Violence , Bloomberg (13/05/2020), accessible at: https://www.bloomberg.com/news/articles/2020-05- 7. There have been endeavours in light of the aforesaid by countries like Australia, US, the UK, and the EU for ways to regulate platforms such as Facebook in an efficient manner but their efforts are still at a nascent stage as studies are undertaken to understand the dynamism of the platform and its disruptive potential. A recent example has been Australia’s effort to formulate a legislation that would require Facebook to pay publishers for using their news stories. The law was seen as a tool to regulate the platform’s unchecked influence over political discourse, society, and democracy. In response, Facebook blocked all news on its platform across the country with the result that there was some relaxation but ultimately a via media was found. The US has also seen heated debates arising from the 2016 Presidential elections with allegations of supposed interference by Russia allegedly facilitated by platforms like Facebook. Last year, the EU formulated legislative proposals namely the Digital Services Act and Digital Markets Act, setting out rules for 8 News Media and Digital Platforms Mandatory Bargaining Code Bill, 2020 was formulated by Australia; See Alex Barker, Jamie Smyth et al., Facebook bans Australian news as impact of media law is felt globally, Financial Times (18/02/2021), accessible at: https://www.ft.com/content/cec5d055-c2d1-4d5f- a392-a6343beb0b01. See also European Parliament, Social media and democracy: we need laws, not platform guidelines (10/02/2021) accessible at: 8. We have penned down a detailed introduction to appreciate the gravity of what was debated before us in the context of Facebook’s hands off approach, who have urged that they cannot be compelled to participate in proceedings of Sub Committees formed by the Parliament or the Legislative Assemblies. The immense power that platforms like Facebook wield has stirred a debate not only in our country but across the world. The endeavour has been to draw a line between tackling hate speech and fake news on the one hand and suppressing legitimate speech which may make those in power uncomfortable, on the other. This delicate balance has thus far only been maintained by the intermediaries by being value-neutral. The significance of this is all the more in a democracy which itself rests on certain core values. This unprecedented degree of influence necessitates safeguards and caution in consonance with democratic values. Platforms and intermediaries must subserve the principal objective as a valuable tool for public good upholding democratic values. 9. The sheer population of our country makes it an important destination for Facebook. We are possibly more diverse than the whole of Europe in local culture, food, clothing, language, religion, traditions and yet have a history of what has now commonly been called ‘unity in diversity’. This cannot be disrupted at any cost or under any professed freedom by a giant like Facebook claiming ignorance or lack of any pivotal role. 10. Delhi, the capital of our country, witnessed an unfortunate eruption of violence between 24th and 29th February, 2020 with communal riots in different parts of North-East Delhi. This caused loss of life and property and disrupted the working of civic services in Delhi. It need not be stated that like any other incident of this nature, it also took a political colour. This produced a divide in the society with people across political affiliations blaming each other. 11. In the wake of these riots, the Legislative Assembly of the National Capital Territory of Delhi (“the Assembly”) resolved to constitute a Committee on Peace and Harmony (“the Committee”) under the chairmanship of Mr. Raghav Chadha, Member, Legislative Assembly on 02.03.2020, to inter alia “consider the factors and situations which have the potential to disturb communal harmony in the National Capital Territory of Delhi and suggest measures to eliminate such factors and deal with such situations so as to establish harmony among different religious or linguistic communities or social groups.” It is the say of the Assembly and the Committee, that it is their objective to detect what happened and formulate recommendations to ensure it does not happen again. It is appropriate to extract the Terms of Reference of the Committee dated 12.03.2020 as issued by the Assembly Secretariat as (General information relating to legislative and other matters) Subject: Terms of Reference of the Committee on Peace and Hon’ble Members are hereby informed that Hon’ble Speaker has approved the following Terms of Reference for the Committee on Peace and Harmony constituted on 02.03.2020: 1. There shall be a Committee on Peace and Harmony inter-alia to consider the factors and situations which have the potential to disturb communal harmony in the National Capital Territory of Delhi and suggest measures to eliminate such factors and deal with such situations so as to establish harmony among different religious or linguistic communities or social groups. 2. The Committee shall consist of nine members who shall be nominated by the Speaker. 3. The term of the Committee shall be one year. 4. The functions of the Committee shall be:- (i) to consider the petitions, complaints or reports from the members of the public, social organizations, journalists etc. on the situations prevailing in a particular area/areas which have the potential to disturb communal peace and harmony or where communal riots have occurred and to examine in detail and identify the factors responsible for it. (ii) to recommend suitable measures to defuse the situation and restore harmony among religious communities, linguistic communities or social groups. (iii) to recognise, reward and felicitate individuals who played a role in the protection of fellow citizens during acts of communal violence, or undertook any activity that led to the restoration of peace in the state. (iv) to recognize, reward and felicitate individuals whose information resulted in the registration of First Information Reports (FIRs) in relation to the crimes committed during the communal (v) to undertake scientific study of the religious, linguistic and social composition of the population of NCR Delhi, with a view to identifying and strengthening the factors which unite the people despite the diversity in terms of their social, religious, economic and cultural tradition. (vi) to recommend measures to be undertaken by the government towards establishing communal harmony and peace in the state. (vii) to recommend action against such persons against whom incriminating evidence is found or prima facie case is made out for incitement to violence. (viii) to examine such other matters, broadly in conformity with the objectives of the Committee, as may seem fit to the Committee or are specifically referred to it by the House or the Speaker. (ix) The Committee shall submit its report to the House. If the House is not in session the Committee may submit the report to the Speaker who may forward the same to the Govt. for necessary action thereon. The Secretary shall lay the report on the Table of the House on the first day of the next session. (x) As soon as maybe after the submission of the report to the House by the Committee, the Govt. shall take appropriate action in the matter dealt with in the report and a complete statement on the action taken by all the authorities thereon shall be laid in the House within two weeks after the report is presented in the House. (xi) In considering/examining the complaints/reports etc., the Committee may engage the services of experts. (xii) The Speaker shall reconstitute the Committee on the expiry of its term. (xiii) Except in respect of matters provided in these rules, other matters in connection with the Committee shall be dealt with under the general rules relating to the Committees. (xiv) The Speaker may issue such directions as he may consider necessary for regulating the procedure in connection with all matters involving the consideration of any question that may be brought up before the Committee. (xv) The Committee shall have all the powers, privileges and immunities as are available to the Committees of the Legislative Assembly of National Capital Territory of Delhi. 12. It appears that the first public meeting was held on 05.03.2020, which was attended by religious leaders, social workers and various officials from different walks of life. It is the say of the Committee that thousands of complaints were received which inter alia suggested that Facebook had been used as a platform for fomenting hate and jeopardising communal harmony. This was further fuelled by an article published in the Wall Street Journal on 14.8.2020 titled “Facebook’s Hate-Speech Rules Collide with Indian Politics” (“the Article”) suggesting that there was a broad pattern of favouritism towards the ruling party and Hindu hardliners. The Article also made serious allegations of lapses on the part of Facebook India in addressing hate speech content. 13. The aforesaid resulted in two important developments. The first was that on 20.08.2020 the Parliamentary Standing Committee on Information Technology (“Parliamentary Committee”) issued a notice requesting Mr. Ajit Mohan, Petitioner No. 1 herein, Vice President and Managing Director of Petitioner No. 2 Facebook India Online Services Private Limited, to appear before the Parliamentary Committee on 02.09.2020. The notice stated that the Committee was seeking Facebook India’s views inter alia on the subject of “safeguarding citizens’ rights and prevention of misuse of social/online news media platforms including special emphasis on women security in the digital space.” The Subject: Examination of the subject ‘Safeguarding citizens’ rights and prevention of misuse of social/online news media platforms including special emphasis on women security in the digital space’ I am directed to state that the Standing Committee on Information Technology are examining the subject ‘Safeguarding citizens’ rights and prevention of misuse of social/online news media platforms including special emphasis on women security in the digital space’. 2. Keeping in view the importance of the subject and its wider implications in the present context, the Committee have decided to hear the views of representatives of Facebook India on the above subject at their sitting scheduled to be held on Wednesday, 2 nd September, 2020 from 1600 hrs. onwards in Main Committee 3. It is, therefore, requested that senior most representatives of Facebook India may make it convenient to appear before the Committee on the said date, time and venue. The names/designations of the representatives from Facebook India who will appear before the Committee may be intimated to this Secretariat by 27th August, 2020 or before positively. In view of the COVID-19 pandemic, you are requested to restrict the number of representatives who will attend the scheduled sitting on 2 nd September, 2020 to a maximum of 5 persons. 4. You may like to submit a brief note highlighting your views/comments on the subject matter to the Committee before sitting. The same can be e-mailed at comit@sansad.nic.in. 5. Entry passes to the venue of the sitting may be collected from the IT Committee Branch in advance. 6. A copy of the points of Conduct and Etiquette to be observed by non-official witnesses appearing before the Committee is enclosed at Annexure-I for your guidance. comit@sansad.nic.in” 14. Along with the aforesaid letter was annexed as Annexure-I the Points of Conduct and Etiquette for the guidance of witnesses appearing before the Parliamentary Committees or their sub-committees, which inter alia in para 8, set out as to what would constitute breach of privilege and contempt of the Parliamentary Committee. The said The witnesses should note the following points while appearing before Parliamentary Committee: 1. Due respects to the Chairman and the Committee/Sub- Committee should be shown by the witness by bowing while taking his seat. 2. The witness should take the seat earmarked for him opposite to the seat of the Chairman. 3. The witness should take the oath, or make affirmation, if so asked by the Chairman. The oath or affirmation will be administered by the Secretary. The witness will take the oath or make affirmation standing in his seat and bow to the Chair just before taking the oath or making the affirmation and immediately 4. The witness should answer specific questions put to him either by the Chairman, or by a Member of the Committee or by any other person authorized by the Chairman. The witness may be asked to place before the Committee any other points that have not been covered and which a witness thinks are essential to be placed before the Committee. 5. All submissions to the Chair and the Committee should be couched in courteous and polite language. 6. When the evidence is completed, and the witness is asked to withdraw, he should, while leaving, bow to the Chair. 7. The witness should not smoke or chew when he is seated before the Committee. 8. Subject to the provisions of Rule 270 of the Rules of Procedure and Conduct of Business in the Lok Sabha, the witness should note that following acts shall constitute breaches of (a) Refusal to answer questions. (b) Prevarication or willfully giving false evidence or suppressing the truth or misleading the Committee. (c) Trifling with the Committee; returning insulting answers. (d) Destroying or damaging a material document relative to the enquiry. 9. The witness should not bring cellular phones inside the xxxxx” 15. Mr. Ajit Mohan, Petitioner No. 1, duly appeared before the Parliamentary Committee and offered his views. 16. The second development took place on 31.08.2020 when the Chairman of the Committee held a press conference (“the press conference”) wherein he summarised the complaints received in the hearings conducted between 25.08.2020 and 31.08.2020. In this process, he stated that it prima facie appeared that Facebook had colluded with vested interests during the Delhi riots in February, 2020. Comments were also made by the Chairman to the effect that Facebook ought to be treated as a co-accused and an independent investigation should be carried out into its role in the riots. It was stated that if the investigation uncovered strong evidence against Facebook, a supplementary chargesheet should be filed in this regard (we may note here itself that the stand taken during the course of arguments was that these were not the Chairman’s own views but were merely the views expressed by the Committee). Since Facebook had not been heard, it was observed in the press conference that before any action is taken in writing, Facebook should be given a chance to appear before the Committee. Consequently, notice for appearance was issued on 10.09.2020 (“First Impugned Summons”) by the Assembly to Mr. Ajit Mohan in the capacity of Vice President and Managing Director of Facebook India. The First Impugned Summons highlighted the factum of numerous complaints alleging intentional omission and deliberate inaction on the part of Facebook in tackling hate speech online. The Article was also referred to and Mr. Ajit Mohan was called upon to deliver insights to the Committee with respect to Facebook India’s internal functioning and enforcement of policies in view of the special knowledge that he possessed. It was clearly stated that he was being called as a witness for testifying on oath before the Committee on 15.09.2020. Significantly, no consequences in the form of breach of parliamentary privilege were intimated in case Mr. Ajit Mohan refused to Subject: Notice for Appearance before the Delhi Legislative Assembly’s Committee on Peace and Harmony, NCT of Delhi. The Delhi Legislative Assembly’s committee on ‘Peace and Harmony’, headed by Hon’ble Member of Legislative Assembly of NCT of Delhi, Mr. Raghav Chadha, as its Chairman along with other Hon’ble Members of the Legislative Assembly, assisting and facilitating the state’s endeavour to maintain and promote an irenic atmosphere in the city as well as establishing a conducive milieu of concordance, peace and pacification amongst different communities residing in NCT of Delhi. Pertinently, the committee has received numerous complaints alleging inter alia intentional omission and deliberate inaction on the part of social media platform-Facebook to apply hate speech rules and Polices which has allegedly led to serious repercussions and disruption of peace and harmony across the NCT of Delhi. A few complainants have also drawn considerable strength from the news report published by The Wall Street Journal on 14.08.2020, titled as ‘Facebook’s Hate-Speech Rules Collide With Indian Politics’. The committee had promptly taken cognizance of serious allegations set out in the vetted complaints and have begun the proceedings in this regard, pursuant to which numerous witnesses have been examined. Significantly, in the wake of serious allegations leveled against Facebook India unit which you have been spearheading since 2019, you, the addressee, as the Vice-President and Managing Director of Facebook India and as a representative of the same, are best suited to deliver insights to the committee with respect to Facebook India’s internal functioning and enforcement of policies, and thus, your special knowledge in this regard would be imperative for the committee while examining the current issue in hand. In view thereof, the committee, under the Chairmanship of Hon’be (sic) MLA Sh. Raghav Chadha, calls you, the addressee, as a witness for testifying on oath and for rendering your assistance by providing the relevant information and explanations in order to smoothly expedite the determination of the veracity of allegations leveled against Facebook in the complaints and depositions made before the committee. In pursuance thereof, we hereby summon you, the addressee, to appear before the committee on 15 th September, 2020 at 12 Noon at MLA Lounge-1, Delhi Vidhan Sabha, for the purpose of recording your deposition on oath and participating in the proceedings carried out by the committee. Email ID dvscommittee@delhi.gov.in” 17. One Mr. Vikram Langeh, Director of Trust and Safety, Facebook sent a reply dated 13.09.2020 emphasising that Facebook’s internal policies seek to protect user safety and security and also emphasised the different mechanisms it employs to tackle hate speech content. The factum of Facebook having given testimony before the Parliamentary Committee was also set out. A plea was raised that the role of regulation of intermediaries like Facebook squarely fell within the exclusive authority of Union of India; in exercise of which the Parliament had enacted the Information Technology Act, 2000 (“the IT Act”). Not only that, the subject of law and order in the NCT of Delhi was stated to fall within the exclusive domain of the Union of India. On these pleas the First Impugned Summons was objected to and requested to be recalled. Delhi Legislative Assembly, NCT of Delhi. Subject: Response to Notice for Appearance before the Delhi Legislative Assembly’s Committee on Peace and Harmony, NCT Facebook India Online Services Private Limited is in receipt of the notice dated September 10, 2020 (“Notice”) issued by the Delhi Legislative Assembly’s Committee on Peace and Harmony Facebook, Inc. (“Facebook”) operates and manages the Facebook platform, and provides the Facebook service to users in India. Facebook shares the Committee’s concerns regarding the dissemination of hate speech online and has implemented robust measures to curb its spread on Facebook’s platforms. Facebook bans individuals and groups that proclaim a hateful and violent mission from having a presence on its platforms. Facebook seeks to apply its comprehensive standards uniformly and has identified a range of such individual and groups across the globe. Facebook has also built some of the most advanced systems in the world to protect its users’ safety and security, investing billions of dollars in technology and hiring tens of thousands of people to work on safety and security. Based on these efforts, we removed 22.5 million pieces of hate speech content in the second quarter of 2020 (up from just 1.6 million pieces of hate speech removed in the last quarter of 2017), nearly 95 percent of which we removed before it was reported to us. Facebook is committed to being more transparent about how it combats hate speech and routinely publishes a Transparency Report, which provides details about steps taken by Facebook to prevent and action content that violates its policies. In view of the importance of this subject, the Parliament’s Standing Committee on Information Technology (“Parliamentary Standing Committee”) is examining the issues raised in your Notice as a part of its inquiry into “Safeguarding citizens’ rights”. We gave testimony before the Parliamentary Standing Committee. We are enclosing the notice received from the Parliamentary Standing Committee for your reference. (Annexure A) As you are well aware, the regulation of intermediaries like Facebook falls within the exclusive authority of the Union of India and in exercise of this power to regulate “communications”, Parliament has enacted the Information Technology Act, 2000. Further, the subject of “law and order” in the National Capital Territory of Delhi also falls within the exclusive domain of the Union of India. Given that the issues raised by the Notice involve subject matter within the exclusive domain of the Union of India, and that the matters are under active consideration by Parliament, we respectfully object to the Notice and request that you recall it. Facebook responds to the Notice without prejudice to, and expressly reserving, any and all of its rights. 18. The aforesaid was not acceptable to the Committee, which formulated a reply to Facebook’s response on 18.09.2020, this time addressing it to both Mr. Ajit Mohan and Mr. Vikram Langeh. The three annexures enclosed with the reply were: (a) Terms of Reference of the Committee (“Terms of Reference”); (b) Sections 18 and 37 of the Government of National Capital Territory Act, 1991 (“GNCTD Act”); and (c) fresh summons issued to Mr. Ajit Mohan (“Second Impugned Summons”) under Rule 172 of the Rules of Procedure and Conduct of Business in the Legislative Assembly of NCT of Delhi (“the Rules”). 19. The Committee’s reply alluded to its Terms of Reference to emphasise that it was in furtherance of the objective of good governance and to carry out responsibilities of the State under the Constitution. The purpose, it was stated, was to invite the public to join this exploratory process, the remit of which included making suggestions to the Union Government beyond using the mechanisms of the Inter-State Council. This was stated to be in line with the principles of cooperative federalism, which encompassed a large number of areas. It is at this stage that a perceived element of threat was held out to Mr. Ajit Mohan stating that his refusal to appear was inconsistent with the law of privileges of a legislature (which extends to the Committee and its members). He was asked to appear before the Committee on 23.09.2020 in the “spirit of democratic participation and constitutional mandates.” Importantly, it was clearly stated that non-compliance would be treated as breach of privilege of the Committee and necessary action would be 20. It is the aforesaid Second Impugned Summons which triggered the filing of the present proceedings under Article 32 of the Constitution of India by Mr. Ajit Mohan as the first petitioner, in his capacity as the Vice President and Managing Director of Facebook India Online Services Private Limited, which is the 2nd petitioner. The third petitioner is the parent company, Facebook Inc., US. The array of respondents include the Assembly as the first Respondent while Respondent Nos. 2 to 4 are the Union of India, represented through different Ministries, being Ministry of Law and Justice, Ministry of Home Affairs and Ministry of Electronics and Information Technology. Respondent Nos. 5 & 6 are the Lok Sabha and the Rajya Sabha respectively. Delhi Police was impleaded as the 7 th respondent. We may note that in the course of the proceedings the Committee sought to be impleaded as a party and in terms of the consent order dated 20.01.2021 the said entity was permitted to intervene. The prayers made in the writ petition are as under: “a. Issue a writ/order or direction in the nature of Mandamus setting aside the Impugned Summonses dated September 10, 2020 b. Issue a writ/order or direction in the nature of Prohibition restraining Respondent No.1 from taking any coercive action against Petitioners in furtherance of the Impugned Summonses; c. Issue or pass any writ, direction or order, which this Hon’ble Court may deem fit and proper under the facts and circumstances of the case.” 21. On 23.09.2020, in the presence of the counsel of the parties, notice was issued. Dr. Singhvi, learned Senior Advocate appearing for Respondent No.1, on instructions, stated that the meeting scheduled for the said date had already been deferred and no further meeting would be fixed qua the petitioners till the next date of hearing. Further, on the Court’s query regarding the role of Respondent Nos. 5 and 6 (the Lok Sabha and the Rajya Sabha respectively), Mr. Harish Salve, learned Senior Advocate appearing for Petitioner Nos. 1 and 2 submitted that the only purpose of serving them was that although no relief was claimed, there was a perception that there may be some interplay of powers between the Delhi Secretariat and the Secretariat of the Central 22. The aforesaid interim arrangement continued as pleadings were completed. The matter was set down for hearing with rule nisi being issued on 21.01.2021. The issue was debated before us on numerous dates thereafter and the hearing concluded on 24.02.2021. We recorded that the counsels had argued over a period of 26 hours, leaving the task to us to pen down the judgment - which we seek to perform now. 23. At this stage, we must note a significant development that arose during the course of the proceedings, possibly emanating from certain questions posed by the Court qua the press conference, the summonses issued to Petitioner No.1, and on account of certain submissions advanced by learned counsel for the Petitioners. An affidavit was placed before us (as recorded in the proceedings of 04.02.2021) in terms whereof the two impugned summonses issued to Petitioner No.1 dated 10.09.2020 and 18.09.2020 stood withdrawn. A fresh notice was issued on 03.02.2021 (“The New Summons”) to Petitioner No. 2, i.e. Facebook India alone. The New Summons dated 03.02.2021 reads as under: Subject: Notice for Appearance under Rule 172 of Rules of Procedure and Conduct of Business in the Legislative Assembly of NCT of Delhi. 1. In supersession of earlier notice(s)/summons dated 10.09.2020 and 18.09.2020, the present notice for appearance is being issued. 2. I am directed to state that the National Capital Territory of Delhi had witnessed unprecedented communal disharmony and violence in February 2020. The Hon’ble Speaker of the Legislative Assembly of NCT of Delhi has constituted a Committee on Peace on (sic.) Harmony under the Chairmanship of Sh. Raghav Chadha along with other Hon’ble Members of the Legislative Assembly to recommend suitable measures to defuse the situation and restore harmony among religious communities, linguistic communities or social groups. The Committee aims to recommend preventive and remedial measures concerning issues of governance, social cohesion, unity, brotherhood and peace. The Committee further aims to recommend measures to strengthen overall social and economic development in the context of establishing communal harmony and peace in society in the NCT of Delhi. 3. Keeping in view the importance of the above subject and its implication on persons in the NCT of Delhi, various persons including journalists, former bureaucrats and community leaders have appeared before the Committee to offer their evidence and suggestions. The Committee has observed and is of the opinion that social media has a very important role in curbing the spread of false, provocative and malicious messages which can fan the violence and disharmony. 4. Since, Facebook has lakhs of users in the NCT of Delhi, in the above-stated context, the Committee has decided to hear the views of representative(s) of Facebook India on the above subject at their sitting scheduled to be held on 25th February, 2021 from 11 AM onwards in MLA Lounge-1, Assembly Complex, Old Secretariat, Delhi-110054 as per the Rules of Procedure and Conduct of Business of the House. 5. It is, therefore, requested that a competent senior representative(s) of Facebook India well conversant with the issues involved may appear before the Committee on the said date, time and venue as a witness. The names/designations of the representatives from Facebook India who will appear before the Committee may be intimated to this Secretariat by 24 th February, 2021 or before positively. Because of the COVID-19 pandemic, you are requested to restrict the number of representatives to a minimum. 6. Please note that failure to send a representative as summoned above, could in terms of the Rules of Procedure and Conduct of Business in the Legislative Assembly of NCT of Delhi lead to initiation of proceedings for breach of privilege/contempt of the 7. In light of the abovementioned supersession, previous notice(s)/summons dated 10.09.2020 and 18.09.2020 stand E-mail ID: dvscommittee@delhi.gov.in ” Dr. Singhvi submitted that since the legal position was being debated in the larger context, the New Summons would not make a difference, except that the specific challenge to the earlier summonses would not stand as they stood withdrawn and had been substituted with the New Summons. It was Mr. Salve’s view, that this would not really be a redeeming feature and the matter still had to be debated. 24. Notably, a discordant note did arise in the stands canvassed on behalf of the Assembly by Dr. Singhvi and on behalf of the Committee by Dr. Rajeev Dhavan. In the perspective of Dr. Dhavan, the earlier summons were as good in law as the New Summons and, thus, it made no difference. Obviously, Dr. Singhvi thought otherwise, as there would have been no occasion to withdraw the earlier summons and issue a fresh summons. We say so as this is one aspect emphasised in the course of arguments in rejoinder by Mr. Salve. 25. One aspect to be noticed is that the New Summons dated 03.02.2021 has been issued by the Deputy Secretary of the Committee. Thus, on the one hand, the Committee deemed it appropriate to withdraw the earlier summons and issue a fresh one (apparently wiser after some arguments from Mr. Salve and possibly some remarks of the Court) while on the other hand as an intervening entity, peculiarly, the stand of Dr. Dhavan was that this was not required to be done! On this, we say no 26. In his opening arguments Mr. Salve punched hard on the issue that niceties aside, one has to consider the true intent with which the summons was issued. In short, it was his say that the objective was to file a supplementary chargesheet and rope in Facebook. To substantiate this contention, he refers to three factors, i.e. (a) Para 4 (vii) read with 4 (i) of the terms of reference of the Committee; (b) the Article and (c) the press conference dated 31.08.2020. 27. The aforesaid was in the background of what was a politically polarised issue and Mr. Salve contended that the Petitioner had no intent to become part of such a debate. The parent company (Facebook Inc.) being an intermediary based in the US, could hardly be expected to be roped into this political battle which formed the basis of the summonses that have been issued. It was emphasised that the Committee’s actions amounted to a clear and present danger of coercive action, which was in violation of Petitioner No. 1’s fundamental rights. In the process of reading his note of arguments, which were more detailed with different nuances, broadly four issues were sketched out:  Does a House have a privilege to summon a person to give evidence who is not directly or indirectly part of the executive?  Do powers of privilege extend to summoning an individual and compelling them to give evidence on matters of fact or seek  If there does indeed exist a privilege, how is the same to be reconciled with an individual’s right to privacy and free speech?  Is the House constrained by the subject matter which constitutes a part of the business of the House relating to its legislative In light of these four issues canvassed by Mr. Salve, we propose to set out the detailed arguments and thereafter proceed with our analysis under three broad heads – (a) the privileges issue, (b) privilege, right to privacy and free speech and (c) legislative competence. 28. Mr. Salve took us through the history of the notion of privilege, how it emanated, and how it is to be understood in the current context. He urged that privilege is a special right enjoyed by the House as a shield in order to enable it to work without fear or interference. It owes its origination in the United Kingdom under the rubric of the constitutional role of the House of Commons (functioning as a court). This role, however, has to be appropriately adapted to the Indian Constitution where there is a sharp separation of powers. A distinction was, thus, sought to be drawn that while privileges have arisen by virtue of House of Commons being a Court (with powers such as summoning persons to its “bar”) it cannot be read into the privileges of a Parliament of a republic. It was, thus, argued that in the Indian context, parliamentary privileges are strictly restricted to legislative functions. Privileges serve the distinct purpose of safeguarding the integrity of the legislative functions against obstructions which could be caused by either members or non-members. Learned counsel sought to refer to certain judicial pronouncements in this behalf. (i) In State of Karnataka v. Union of India 9 the proceedings related to a Commission of Inquiry appointed by the Central Government under the Commission of Inquiry Act, 1952 against the then Chief Minister of Karnataka. The challenge was laid by the State Government which was repelled by a majority judgment of six Judges with one dissenting Judge. The most significant aspect emphasised was that the “powers” meant to be indicated in Article 194(3) are not independent but are such powers which depend upon and are necessary for the conduct of business of each House. Thus, they could not be expanded into those of the House of Commons in England for all purposes. The Constitution is sovereign or supreme and thus, the Parliament as well as each legislature of the State in India enjoys only such legislative powers as the Constitution confers upon it. A distinction was made in the role performed by the Parliament and Legislative Assembly while exercising its legislative power as against a court of justice. In taking up proceedings which are quasi judicial in cases of contempt of its authority and motions concerning its “privileges” and “immunities”, the House only seeks removal of obstructions to the due performance of its legislative functions. However, if the question of jurisdiction arises as to whether a matter falls here or not, it has to be decided by the ordinary courts in appropriate (ii) The next judgment relied upon is Amarinder Singh v. Special Committee, Punjab Vidhan Sabha & Ors. 11 In this case, Shri Amarinder Singh, then a Member of the Punjab Vidhan Sabha was expelled for the remaining part of the 13th Vidhan Sabha on allegations of criminal misconduct relating back to his tenure as the Chief Minister of Punjab during the 12th term of the Vidhan Sabha qua alleged responsibility for improper exemption of a vacant plot of land licensed to a private party. On a challenge being laid, the Supreme Court opined in favour of Shri Amarinder Singh holding that the proper course of action for the State Government should have been to move the criminal law machinery with the filing of a complaint followed by investigation as contemplated under the Code of Criminal Procedure and thus, the Punjab Vidhan Sabha had exceeded its powers by expelling the appellant on the ground of breach of privilege when there existed 10 Smt. Indira Nehru Gandhi v. Shri Raj Narain & Anr., (1975) 2 SCC 159. none. The alleged improper exemption of land was only an executive act and it did not distort, obstruct, or threaten the integrity of legislative proceedings in any manner observed the Constitution Bench of five Judges. In coming to the conclusion, the scope of the powers, privileges and immunities available under Articles 105(3) and 194(3) have been discussed in paras 33 to 37. It was noticed that they were not codified by way of statute till date and, thus, the Supreme Court held that it could consider the principles and precedents relatable to the British House of Commons. This Court had adopted a similar approach towards the concept of legislative privileges to interpret Article 194(3) in Re. Special Reference 1 of 1964.12 An aspect emphasised was that there was a distinction between exercise of legislative privileges and ordinary legislative functions. In that context it was observed “45. In U.P. Assembly case (supra.), this Court had also drawn a distinction between the exercise of legislative privileges and that of ordinary legislative functions in the "70. ….There is a distinction between privilege and function, though it is not always apparent. On the whole, however, it is more convenient to reserve the term `privilege' to certain fundamental rights of each House which are generally accepted as necessary for the exercise of its constitutional functions. The distinctive mark of a privilege is its ancillary character. The privileges of Parliament are rights which are ‘absolutely necessary for the due execution of its powers.’ They are enjoyed by individual Members, because the House cannot perform its functions without unimpeded use of the services of its Members; and by each House for the protection of its Members and the vindication of its own (iii) The next judgment relied upon is in the case of Justice (Retd.) Markandey Katju v. Lok Sabha & Anr.13 Facebook, as an intermediary, was used by Justice Markandey Katju, former Judge of this Court to make a statement that Mahatma Gandhi was a British agent causing harm to India and that Netaji Subhash Chandra Bose was an agent of Japanese fascism. This naturally invoked the hackles of the Parliamentarians and a discussion took place in the Rajya Sabha. A resolution was passed unanimously with the Lok Sabha doing the same on the next day unequivocally condemning the remarks of Justice (Retd.) Katju. Letters and e- mails were written questioning this methodology as he was not given an opportunity of hearing in compliance with the principles of natural justice. Since it provoked no response, these resolutions were sought to be assailed by Justice (Retd.) Katju in judicial proceedings before this Court. Since no aspect of privilege was invoked and it was an expression of the views of the Parliament falling within the domain of freedom of speech in Parliament, the petition was rejected. It is in that context that a distinction was made between the exercise of contempt or breach of privilege where action was sought to be initiated against a citizen,-whether a member or a non-member. The law has developed that the action of such citizen must have interfered with fundamental functioning of the House so as to enable the House to initiate any proceedings against the citizen. The earlier judgments inter alia in the case of MSM Sharma v. Dr. Shree Sri Krishna Sinha14, Raja Ram Pal15, Special Reference No. 1 of 1964 and Amarinder Singh17 were discussed to conclude that Chapter 20 of the Lok Sabha Rules 16 Supra note 12. entitled privileges and Rules 222 to 228 thereof deal with matters of privileges. Similarly Rules 187 to 203 of the Rajya Sabha Rules deal with issues concerning privileges. Thus, an inquiry would be along the lines submitted by the petitioner only if such a privilege action was proposed to be taken which was not so in that case. In the conspectus of the aforesaid legal principles, it was urged that the petitioners in the instant case being non-members could only be summoned if they had intruded upon any functions of the Assembly. Their non-appearance or unwillingness to participate in the debate in which they were compelled to participate did not in any manner disrupt the functioning of the Committee so as to face the consequences of breach of privilege. The Committee could always make its recommendations but the petitioners do not want to be part of it. There were no legislative functions to be performed and thus, the contention was that this was a case of expanding unbridled privileges in the garb of an amorphous set of rules to make an exception to the rule of law. As such, it was argued that the Terms of Reference had to be given a restrictive meaning. 29. Next, Mr. Salve sought to deal with the issue of judicial scrutiny of proceedings of the Assembly by seeking to canvas that there is no absolute bar on Courts to look into the validity of the proceedings of the Assembly. In the context of Article 212 of the Constitution read with relevant sections of the GNCTD Act, if proceedings adopted by the Assembly suffer from lack of jurisdiction or are illegal or unconstitutional, a challenge can be made before the competent court. Learned senior counsel relied upon judicial pronouncements in Special Reference No.1 of 196418, Raja Ram Pal v. Hon’ble Speaker, Lok Sabha & Ors.19 and Kalpana Mehta And Ors. vs Union of India And 30. In Special Reference No.1 of 196421 the dispute arose out of a conflict between the legislature and the judiciary, if one may say so, as a consequence of the power exercised by the U.P. Assembly in sentencing one Keshav Singh to be detained in a civil prison for a period of 7 days and the judiciary (Allahabad High Court) enlarging him on bail thereafter. This was taken as an affront by the legislature, which passed a 18 Supra note 12. resolution against the two concerned judges to be brought in custody before the House. A Full Bench of 28 judges consisting of the strength of the Court thereafter assembled to deal with the petitions filed by the two judges against this resolution. The bench restrained the Speaker from issuing a warrant against the judges and the Marshal of the House from executing the warrant. In order to resolve this confrontation, the President of India decided to exercise the power to make a reference to this Court under Art. 143(1) of the Constitution. The reference was on the important question of the exercise of powers, privileges and immunities of the State legislature vis-à-vis the power of the High Court and the Judges to discharge their duties. Suffice to say that the opinion rendered by the Court in the reference was that the powers conferred on the High Court under Article 226 of the Constitution and the authority of the Supreme Court under Article 32 of the Constitution are not subject to any restrictions. It could not be said that a citizen cannot move the High Court or the Supreme Court to invoke its jurisdiction, even in cases where fundamental rights have been violated. Once the judiciary was authorized to consider the validity of the actions of the legislature, it was opined that the judiciary cannot be prevented from scrutinizing the validity of the actions of the legislatures trespassing on the fundamental rights conferred on the citizens. 31. In Raja Ram Pal22 a private channel’s telecast based on a sting operation in the “cash for query case” where 10 Members of Parliament accepted money through middlemen to raise certain questions in the House resulted in an inquiry and subsequent expulsion of these members from the House. The members challenged the said expulsion. The three questions framed by the Supreme Court were all answered in the affirmative – (i) that the Supreme Court within our constitutional scheme has the jurisdiction to decide the content and scope of powers, privileges and immunities of the legislature and its members; (ii) the power and privileges of the legislature in India, in particular reference to Article 105 of the Constitution, includes the power of expulsion of its members; and (iii) in case of expulsion, the Supreme Court had jurisdiction to interfere to exercise such power and privileges. While rejecting the plea on expulsion, the Court expounded on the scope of such judicial review. Significantly, it was opined that though there would be a presumption that the Parliament would always perform its functions and exercise its 22 Supra note 15. powers within a reasonable manner, there could be no scope for a general rule that the exercise of power by the legislature was not amenable to judicial review. This would neither be in the letter nor the spirit of the Constitution. The touchstone, however, would not be that of an ordinary administrative action but the legislature could not be said to have the licence even to commit a jurisdictional error. 32. In Kalpana Mehta and Ors.23 a vaccination drive conducted by NGOs without the vaccine going through all the pre-requisite trials caused loss of life, resulting in a parliamentary standing committee being constituted to inquire into the matter. The report of the standing committee was sought to be relied on in a Public Interest Litigation dealing with the issue. The question which arose was whether such a report of a standing committee could be relied upon in the judicial review. The relevant observations for our purposes are the summary of conclusions which deal with the judicial review of such legislative action. It was opined that constitutional courts are not prevented from scrutinising the validity of the actions of the legislature trespassing on the fundamental rights conferred on the citizens. There could, thus, be no 23 Supra note 20. immunity to parliamentary proceedings under Article 105(3) of the Constitution though it was subject to the restriction contained in other constitutional provisions such as Article 122 or Article 212. The prohibition on the jurisdiction of the Court was restricted to the ground of irregularity of procedure but if the proceedings are tainted on account of substantive or gross illegality or unconstitutionality, there would be no protection against judicial scrutiny. 33. Finally, on the issue of privileges, Mr. Salve referred to the prevalent position in some other countries regarding the exercise of privilege powers. It was contended that such privilege powers could not be used to compel speech, more so when the organisation in question is an American corporation. We may notice at this stage itself that we really do not appreciate the second limb of this submission. When these corporations are working within the territory of our country and are subject to the jurisdiction of this Court, then what kind of special privilege would they have by reason of being an American corporation or a corporation incorporated in any other country! Now turning to the two enactments sought to be referred to by learned senior counsel – the first one is the Scotland Act, 1998, more specifically Section 23 and the Government of Wales Act, 2006, more specifically Section 37. We reproduce the relevant provisions as under: 23. Power to call for witnesses and documents (1)The Parliament may require any person— (a)to attend its proceedings for the purpose of giving evidence, (b)to produce documents in his custody or under his control, concerning any subject for which any member of the Scottish Executive has general responsibility. “Section 37 of the Government of Wales Act, 2006 (1) Subject as follows, the Assembly may require any person— (a) to attend Assembly proceedings for the purpose of giving (b) to produce for the purposes of the Assembly (or a committee of the Assembly or a sub-committee of such a committee) documents in the possession, or under the control, of the person, concerning any matter relevant to the exercise by the Welsh Ministers of any of their functions. 34. In the context of the aforesaid provisions, emphasis was laid on the expression “may” to submit that there is no element of compulsion. The second aspect emphasised was that, as these legislations suggest, privilege should relate to matters in connection with functions of the ministers. This in turn was sought to be linked with the argument that what the Committee was seeking to perform was not a core function of the Assembly and thus, cannot be said to be their function. Further, if only an opinion was being sought, as had been urged by the respondents, then it was submitted that oath could only be on a question of fact and not a matter of opinion. 35. Learned senior counsel also assailed the intent of the New Summons as only a subterfuge. Compelling experts to give an opinion in a democratic polity, it was argued, would be an “abhorrent proposition” as it could only be a voluntary act. As such, the act of Assembly it was stated, reeked of constitutional arrogance. In fact, what senior counsel sought to stress was that his submission was not challenging the exercise of privilege power but the very existence of the same. In this behalf it was stressed that the Assembly (the Committee being only a smaller group constituted) would have to reconcile with where their powers to summon originate from. Entry 39 of List II (Powers, privileges and immunities of the Legislative Assemblies) could not be a source of power of the Assembly and the scenario was rather of a statutory source of power emanating from Section 18 of the GNCTD Act, which was enacted in pursuance of Article 239AA (3)(a) and (3)(b) of the Constitution. Thus, a distinction was sought to be made between a power directly emanating from the Constitution and one flowing from a statutory provision. In the given facts, this was a case of the latter, which, it was urged would necessarily have to be tested on the touchstone of Part III of the Constitution. The relevant provisions are extracted hereinunder to 239AA. Special provisions with respect to Delhi.— (3) (a) Subject to the provisions of this Constitution, the Legislative Assembly shall have power to make laws for the whole or any part of the National Capital Territory with respect to any of the matters enumerated in the State List or in the Concurrent List in so far as any such matter is applicable to Union territories except matters with respect to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of that List in so far as they relate to the said Entries 1, 2 and 18. (b) Nothing in sub-clause (a) shall derogate from the powers of Parliament under this Constitution to make laws with respect to any matter for a Union territory or any part thereof.” 18. Powers, privileges, etc., of members.—(1) Subject to the provisions of this Act and to the rules and standing orders regulating the procedure of the Legislative Assembly, there shall be freedom of speech in the Legislative Assembly. (2) No member of the Legislative Assembly shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Assembly or any committee thereof and no person shall be so liable in respect of the publication by or under the authority of such Assembly of any report, paper, votes or proceedings. (3) In other respects, the powers, privileges and immunities of the Legislative Assembly and of the members and the committees thereof shall be such as are for the time being enjoyed by the House of the People and its members and committees. (4) The provisions of sub-sections (1), (2) and (3) shall apply in relation to persons who by virtue of this Act have the right to speak in, and otherwise to take part in the proceedings of, the Legislative Assembly or any committee thereof as they apply in relation to members of that Assembly.” 36. We may clarify at this stage that since the submissions were drawn in the context of certain questions raised, this latter submission really arises in the context of privilege powers vis-à-vis the constitutional provisions under Part III of the Constitution which are to be considered under a separate section. 37. It appears that the petitioners wanted to avail of the benefit of another senior counsel, possibly to further buttress their submissions and thus, Mr. Arvind Datar, learned senior counsel sought to address us next, on behalf of Petitioner No. 3, Facebook Inc. 38. Mr. Datar, in an endeavour to trace out the constitutional history, referred to the origin of powers and privileges by inviting our attention to Section 71 of the Government of India Act, 1935. It was stressed that the provincial legislatures had no powers but only privileges; they did not have powers to punish people under that Act. Next, in the context of Erskine May’s seminal commentary on Parliamentary Practices, it was pointed out that Chapter XI deals with powers and Chapter XII deals with privileges and immunities which are used interchangeably. 24 Power, however, remains, distinct. The primary power given to the House was to make laws or legislative powers. It is these powers from the Act of 1935, which are stated to have been adopted under Article 194(3) of the 24 Erskine May’s Treatise on the law, privileges, proceedings, and usage of Indian Constitution, which applies to the State Government and every 39. Learned senior counsel submitted that Delhi is different as it is on a special footing being categorised as a Union Territory in Article 239AA of the Constitution. Reiterating Mr. Salve’s argument, Mr. Datar stressed that the powers and privileges conferred on the Delhi Assembly are not derived from the Constitution but by reason of statutory enactments, i.e., Section 18 of the GNCTD Act. The privilege and powers of the Assembly are, thus, undoubtedly to be tested against Part III of the Constitution. These being statutory in nature, the aspect of constitutional balancing of powers with fundamental rights, as arose in In Special Reference No.1 of 1964 and MSM Sharma26 does not arise in the present case. The privilege here is a “derivative” from an Act of Parliament and not from any Constitutional provision. 40. We now turn to the submissions of the respondents on this issue, which were as vehemently argued. Dr. Singhvi, learned senior counsel 25 Supra note 12. seeking to address submissions on behalf of the Assembly, sketched out (i) The occasion to argue privilege has not even arisen and was premature as there was no actual notice of privilege. There was, thus, no factual matrix before the Court to analyse the exercise of the power and what was being sought by the petitioners qua the aspect of privilege amounted to seeking an advance ruling on the issue. (ii) Were the arguments of the petitioners to be accepted, it would have wide ramifications on the working of the committees across the nation both at the State as well as the Parliamentary levels. The argument of the petitioners, it was urged, had the propensity to destroy the system of committees which had been found historically to do yeoman work, possibly away from the more aggressive stances in the Parliament. (iii) The petitioners could not be conferred with the privilege to appear before the kind of committees they want to appear before. The petitioners admittedly had appeared on more than one occasion of a similar nature without any qualms. (iv) In the similar vein, the reference to the IT Act was premature as the Assembly was not debating any legislation of the issue but only discussing a particular aspect. (v) Arguments of the petitioners were premised on lack of mutual respect and difference between the organs of our democracy. (vi) Committee proceedings are House proceedings and the Supreme Court would normally never interfere with House proceedings and therefore also not with committee proceedings. 41. The obvious political divergence between Central Government and the State Government came out quite openly during the arguments where Dr. Singhvi sought to put forth the argument that the bold stand of the petitioners stood on a support base from the Central Government. The appearance before the Parliamentary Committee was sought to be justified by the petitioners as being based on commercial and operational reasons and not in view of any compulsion (an aspect disputed by learned Solicitor General on behalf of the Central Government). The petitioners, it was argued, were actually canvassing a case on absence of any commercial and operational consequences/compulsions rather than lack of jurisdiction. It was, however, fairly assured and rightly so, that the Assembly and the Committee were not oblivious to the constitutional exclusion of entries 1, 2 and 18 of List II and the respondent would never contend to encroach upon this constitutional demarcation. One aspect which Dr. Singhvi sought to emphasise, in our view not very convincingly, was that the issue of the press conference was an afterthought, raised by the petitioners to create prejudice. We say so as the press conference being held is not in doubt nor what transpired there. The only turn which Dr. Singhvi could seek to give to this is that what the Chairman of the Committee mentioned in the press conference were views of the persons who had deposed and not his own view per se. To say the least, we find this submission very difficult to accept and we will deal with it at the relevant stage. 42. The other aspect which Dr. Singhvi pointed out was the withdrawal of the Second Impugned Summons and the New Summons being issued, which no longer compelled Petitioner No.1 to appear before the Committee. However, this aspect has been labeled as a “subterfuge” by Mr. Salve, on account of the divergent views taken on the aspect of withdrawal by Dr. Singhvi and Dr. Dhavan– and surprisingly so. Consequently Dr. Singhvi will have to bear the burden of the cross for the 43. On the specific plea of privilege Dr. Singhvi commenced by seeking to establish that all committees of legislatures have the power to summon and compel attendance. Any power, without subsidiary powers to ensure implementation, it was urged, was akin to having no power at all. The power to compel attendance by initiating privilege proceedings is therefore, an essential power. The argument was further supplemented with the contention that the power of privileges was amorphous in common law and the Parliament has consciously not codified this area of law so that they can cater to unimagined situations in the future. 44. Dr. Singhvi, in fact, cautioned that this Court should not embark on the path suggested by Mr. Salve, who had argued that it was time that these privileges were codified. Dr. Singhvi urged this Court to not even opine on the necessity of codifying such privileges and that the same should be left to the Parliament, if they so desire without any nudge by 45. Dr. Singhvi sought to erase the distinction between the exercise of privilege powers under the Constitution and under the GNCTD Act by putting them on the same pedestal, urging that the two together provide for the scheme of operation. Learned senior counsel referred to provisions (7)(a) & (b) of Article 239AA in the context that the GNCTD Act was not to be deemed to be an amendment to the Constitution for purposes of Article 368 of the Constitution notwithstanding that it may contain any provision which amends or has the effect of amending the Constitution. The Assembly was, thus, submitted to be a privileged body with members enjoying freedom of speech in the House as well as freedom to vote and had all the privileges (under Section 18 of the GNCTD Act) as are enjoyed by Members of Parliament. It was thus urged that calling into question the proceedings of the Committee amounted to calling into question the proceedings of the Assembly in a court of law for which the powers were not vested. The regulation of the procedure of conduct of business was not subject to jurisdiction of the courts. In order to establish parity of the privilege powers, Dr. Singhvi drew the attention of the Court to Article 105 of the Constitution, Section 18 of the GNCTD Act coupled with Rule 172 of the Rules. 46. On this aspect, parity was sought to be drawn by relying on Parliamentary privileges in Entry 74 of List I and that of the Legislative Assembly in Entry 39 of List II which were stated to be pari materia. Delhi was no different, it was submitted, and thus the powers of the Assembly are the same under entry 39 of List II as any other Assembly in the context of Article 239AA of the Constitution. To further amplify this aspect, learned counsel sought to draw strength from the observations of this Court in State (NCT of Delhi) v. Union of India and Anr. 27 which comprehensively dealt with the segregation of powers between the State and the Central Government in view of an ongoing conflict on various issues in this behalf. It was opined by this Court that all entries in List II will have full play except three specific entries which were excluded, i.e. 47. In view of Article 239AA(3)(a) the power to summon and compel attendance was stated to be akin to that of any other legislative assembly. Testimonies before committees were stated to be mostly under oath and the rationale for the same was that the process was solemn in nature and that it would improve the quality of debate. There was stated to be no competing entry in List I and the question of repugnancy would only arise in terms of any entry in List III where there are central statutes in a given scenario. The committees of legislatures all over the country (including Delhi), thus, possess the power to compel attendance of witnesses as a part of their constitutionally recognized powers and privileges and there could be no distinction based on the kind of committee or the type of person who is summoned in exercise of these 48. We may note another submission of Dr. Singhvi where he cautioned the court against ruling in a manner wished for by the petitioners on account of its wider ramifications especially in the context of observations made in Kalpana Mehta And Ors.28on the importance of committees. Any hampering of the working of the committee would hamper the working of the Assembly as passing laws is not the only function of the Assembly. Thus, the practice of passing resolutions by Assemblies on the sense of the house would be disrupted. On the significance of the working of these committees, it is not necessary to go into depth as the issue has been well considered in Kalpana Mehta And 28 Supra note 20. Ors.29 We, thus, consider it appropriate to only extract some of the 66. Woodrow Wilson, the 28th President of the United States, was quoted as saying in 1885 that “it is not far from the truth to say that Congress in session is Congress on public exhibition, whilst Congress in its Committee rooms is Congress at work.” This is because most of the work of Congress was referred to committees for detailed review to inform debate on the floor of the House.” “70. The importance of Committees in today's democracy has “Committees may not be of much service in the more spectacular aspect of these democratic institutions, and they might not be of much use in shaping fundamental policy, or laying down basic principles of government. But they are absolutely indispensable for the detailed work of supervision and control of the administration. Not infrequently, do they carry out great pieces of constructive legislation of public economy. Investigation of a complicated social problem, prior to legislation, maybe and is frequently carried out by such legislative committees, the value of whose service cannot be exaggerated. They are useful for obtaining expert advice when the problem is a technical one involving several branches within an organization, or when experts are required to advise upon a highly technical problem definable within narrow limits. The provision of advice based on an inquiry involving the examination of witnesses is also a task suitable for a committee. The employment of small committees, chosen from the members of the House, for dealing with some of the items of the business of the House is not only convenience but is also in accordance with the established convention of Parliament. This procedure is particularly helpful in dealing with matters which, because of their 29 Supra note 20. special or technical nature, are better considered in detail by a committee of House. Besides expediting legislative business, committees serve other useful services. Service on these committees keeps the members adequately supplied with information, deepens their insight into affairs and steady their judgment, providing invaluable training to aspirants to office, and the general level of knowledge and ability in the legislature rises. Committees properly attuned to the spirit and forms parliamentary government can serve the country well as the eyes and ears and to some extent the brain of the legislature, the more so since the functions and fields of interest of the government increase day by day.” 49. Dr. Singhvi concluded by emphasising that not a single judicial precedent had been cited from our country or outside where the Court had intervened at the stage of summoning of a witness by the legislature (sub-committee). Reliance was placed on the judgment of the Madras High Court in C. Subramaniam v. The Speaker, Madras Legislative Assembly.30 In this case, on a speech being made by a former Member of the Madras Assembly a show-cause notice was issued by the Speaker of the Assembly as to why his conduct should not be treated as a breach of privilege. The endeavour to assail the notice was rejected by the Full Bench of the High Court, on the short ground that it was premature at that stage as no action had been taken. It was held to be akin to a writ of prohibition restraining the Speaker of the Legislative Assembly from proceeding further, which was virtually on the ground of absence of an ab initio jurisdiction. It was further opined that the power vested under Article 194(3) of the Constitution empowered the Speaker with the right to call upon a third party like the writ petitioner to show cause against an alleged breach of privilege by way of contempt. In the facts of the present case, it was urged, even a show cause notice had not been issued as the Petitioner had only been called upon to depose. Thus, there was not even an initiation of any privilege proceedings. 50. We now turn to the arguments of Dr. Rajeev Dhavan on behalf of the Committee which sought to intervene in the present proceedings. We may note at the threshold that the Committee is really a creation of the Assembly, but it appears that like the petitioners, the respondents wanted assistance of more than one counsel in the belief that it would further advance their case. In the process, as noticed above, some contradiction of stand came into being regarding the implication of the issuance of the New Summons and withdrawal of the old one. 51. Dr. Dhavan laid great emphasis on the main functions of the Committee as enunciated, taking a cue from its very description as a “Peace and Harmony Committee.” The main functions, thus, were to consider viewpoints across society about prevalence of such a situation which had the potential to disturb communal peace and harmony or where communal riots had occurred and to examine in detail and identify the factors responsible for it. This was coupled with the mandate to undertake scientific study on religious, linguistic, and social compositions of the population of Delhi NCR, with a view to identify and strengthen the factors which unite people despite their diversity. The Committee also sought to recommend measures to be undertaken by the government towards establishing communal harmony and peace in the State. We may note with some trepidation Dr. Dhavan’s submissions while seeking intervention that even if a writ was issued to the Assembly it could not be deemed to have been issued to the Committee because the Committee was an autonomous body which would eventually report to the Assembly and thus, enjoys a separate legal existence. Suffice for us to say at this stage that if the Committee is the creation of the Assembly and seeks to derive its powers and strength from the Assembly, it is surprising to note a submission that the -Committee would not be bound by a direction of this Court if it was not specifically made a party. Be that as it may, we did permit the Committee to intervene and to that extent there was no objection from Mr. Salve. 52. The initial rebuttal to the challenge is based on the anticipatory nature of the proceedings, being presumptive and pre-emptive. There are several stages of scrutiny before a breach of privilege notice is even issued; much less any conviction arising from such a breach of privilege. 53. It was further contended that no factual basis had been laid for the concerns regarding the First and Second Impugned Summons and the press conference. Fundamental rights could not be said to be violated by a mere issuance of summons. There was stated to be lack of specificity of any claim of mala fides which could not be general in character but must be specifically pleaded and proved by all material particulars in relation to the persons concerned.31 This was an aspect absent in the present case. Dr. Dhavan categorised the writ petition as a SLAPP (Strategic Lawsuit 31 State of Madhya Pradesh v. Nandlal Jaiswal (1986) 4 SCC 566; K. Nagraj v. State of Andhra Pradesh (1985) 1 SCC 523. Against Public Participation), engineered to silence the Committee and interfere with the democratic process. 54. Dr. Dhavan clarified the statements made by Mr. Raghav Chadha during the press conference on 31.08.2020 to contend that it was merely a summary of the complaints received by the Committee. They were stated not to represent the Chairman’s views, the Committee’s conclusions or the scope of the Committee’s functions. The Committee had not suo moto decided that the petitioners were responsible for causing disharmony. It had received complaints from several different people, who specifically attributed the disharmony caused by the riots in Delhi to Facebook. The statements made in the press conference were, thus, not made in bad faith and were simply repetitions of the depositions made to the effect that Facebook may have had a role in the riots. 55. The contention on the Committee’s Terms of Reference recommending criminal action was stated to be “toothless.” Thus, in a sense what was conceded was that the said part of the Committee’s Terms of Reference (i.e. in paragraph 4(vii)) was “otiose.” The Committee could, at best, make recommendations. Whether criminal action was, in fact, initiated was entirely the remit of the police or the judiciary and in that context no real threat was made to the petitioners either by the Terms of Reference or by the impromptu statements made by the Chairman in the press conference. 56. The aforesaid submissions, in our view, may have mollified the petitioners though apparently not Mr. Salve. As per his submissions, all the aspects would have to be read together to come to a conclusion whether the petitioners had a real concern to approach the Court or not. We say so in the context of the Terms of Reference which included recommending criminal action, the utterances of Mr. Raghav Chadha in the press conference (undoubtedly in the background of the depositions before the Committee) and the limitation on the legislative domain by carving out of certain entries from List II as applicable to the Assembly. We will pen down our view on this aspect at a later stage. 57. We now come to arguments of Dr. Dhavan that were in sync with what Dr. Singhvi had argued, i.e., in view of the judicial observations, these committees are the eyes and ears of the Parliament, essential for the democratic polity. The functions performed by the committees are part of the core legislative functions of State Assemblies, which may include (a) supervising administration, (b) taking evidence on legislation, and (c) dealing with a crisis or governance generally. In that context, Dr. Dhavan pointed out that the petitioners had not challenged the constitution of the Committee itself or its Terms of Reference. The petitioners had also not challenged the summons issued by the Parliament despite Parliament’s threat to initiate breach of privilege proceedings in case they refused to appear. As such, Facebook could not be said to have any issues while appearing before the Parliamentary Committee. The role of intermediaries in governance was relevant and the testimony of the petitioners was important in that context. The refusal was sought to be labeled down as one relating to “political reasons.” 58. Dr. Dhavan then turned to the aspect of the distinction drawn by Dr. Singhvi between members and non-members in the context of the legislature’s power to summon witnesses or initiate breach of privilege proceedings. He canvassed that no rule existed as per which non- members have the power to refuse a summons issued by a legislative committee. The core function of the legislature is democracy and not just to legislate, an aspect we agree with. Thus, it was the obligation of every person to cooperate with the legislature and appear when requested to assist in the realisation of this core function. There were several ways in which the legislature may seek democratic participation, one example was appearance before committees. 59. In support of the aforesaid plea, Dr. Dhavan illustrated the proposition by giving instances of notices issued to non-members which also form a subject matter of a treatise by Dr. Dhavan “Only the Good News: On the Law of the Press in India” published in 1987. Legislative Assembly) – Reprimand to person who questioned the partiality of Speaker. Bengal) – The West Bengal Legislature was maligned and the feature writer did not apologise but the editor did. (Karnataka) – An unrepentant editor of a newspaper reprimanded by the Legislature for accusations of harassing educational institutions. – An editor, who criticized the alleged leak of a budget by the Chief Minister, subject to imprisonment for a day. - Varsha Joshi and K.W. Deson (1982), (1982) XXVII P.D. (No.1) (Gujarat) – The threat to institute legal proceedings against a speaker for allowing discussion on sub judice matters caused the Committee to recommend imprisonment of a person.” 60. On the constitutional status of the Assembly, Dr. Dhavan sought to make a distinction between all Union Territories on the one hand, and Delhi and Puducherry on the other. A second distinction was made between the Delhi and the Puducherry Legislative Assemblies. The significant distinction was stated to be that while the Puducherry Legislative Assembly was created through an exercise of constituent power by the 69th Amendment Act, 1991. Thus, while Article 239AA excluded police power and public order from the scope of the Assembly’s competence, that did not detract from it being a full-fledged working Legislative Assembly similar to the Parliament. This aspect was stated to be reinforced by Sections 33 to 37 of the GNCTD Act. In Dr. Dhavan’s view, the powers of privilege of the Assembly could be traced to Article 239AA(2) & (7) of the Constitution, Section 18(3) of the GNCTD Act and Rules 160 and 172(4) of the Rules. Dr. Dhavan drew strength from Article 212(1) to canvas that the Constitution grants internal autonomy to each House of the State legislature and the validity of any proceedings cannot be questioned on an allegation of “irregularity of procedure.”32 There were conceded to be limitations to Article 212(1) of the Constitution and this Court had held that interference with the internal functioning of the State Legislative Assemblies can only be limited to cases of “gross illegality and unconstitutionality.” 33 No such illegality having occurred in this case and only a summons being issued, no proceedings for breach of privilege had been initiated and no question had been asked. As such there was no occasion whatsoever to call for interference by this Court. 61. Akin to Dr. Singhvi’s submission, Dr. Dhavan also emphasised on the sui generis nature of parliamentary powers and privileges and vehemently opposed the suggestion that these privileges needed to be codified. The powers and privileges of the legislature do not require a law and learned senior counsel sought to repel the argument of Mr. Salve that the amorphous nature of privileges offends the law and due process. It would not amount to claiming privilege as they want, as the Supreme Court has recognized a “Lakshman Rekha” to confine the extent and 32 Supra note 14. 33 Supra notes 12 and 15. exercise of their powers.34 There could be many other legal concepts that are similarly amorphous or in HLA Hart’s language “open textured.” This would not amount to ipso facto undermining the credibility of these concepts or reducing the importance of the meaning given to them by the Supreme Court. Thus, at this stage, the only question was whether a simpliciter issuance of summons from a sub-committee was constitutionally improper to which the answer should be in the negative. 62. The last set of arguments on this point by Mr. Tushar Mehta, learned Solicitor General of India, were in a limited contour. He supported learned counsel for the respondents on the power of the Parliament and Assemblies per se to summon but that would be subject to judicial review. However, his next submission was in sync with the submission of the petitioners that the Assembly lacks legislative competence to deal with the subject matter in question. That being his submission, it was felt that a complete argument on privilege was not required to be considered. In substance, his contention was that the summonses could not have been issued because of lack of legislative competence but if the Assembly had the legislative competence, then the 34 Supra note 12. principles as enunciated by learned counsel for the respondents were the correct principles. 63. We have dealt with the aspect of rival contentions arising from the privilege of the House to summon a person, to compel them to give evidence on matters of fact, and seek their opinion – which are the first two questions framed by Mr. Salve under the head of privileges as aforesaid. Having done so, we proceed to the third question dealing with the interesting aspect of privileges vis-à-vis an individual’s right to privacy and free speech. 64. We may at the threshold note that Mr. Salve had to deal with the aspect raised by the respondents on the petition being premature – both in the context of privilege per se and in the interaction between privileges and fundamental rights. 65. Mr. Salve strongly refuted the plea of the petition being premature on the basis of the summonses issued by the Committee where it was threatened that “necessary action” would be taken against the petitioners for breach of privilege if they do not appear. He submitted that even a threatened breach of fundamental rights is sufficient to invoke jurisdiction of this Court under Article 32 of the Constitution.35 Further elucidating on this aspect, Mr. Salve submitted that access to justice is a human right available where there is even a threat to personal liberties. 36 In that context, he stated that the Second Impugned Summons left no room for doubt that Respondent No. 2 was determined that the failure to appear would constitute a breach of privilege for which “necessary action” will be taken, which included the risk of arrest and imprisonment. This argument arose from the plea of Mr. Salve that the petitioner had a right to not appear and in the alternative a right to remain silent if he so 66. In view of the aforesaid fact and the plea that the summons itself was without jurisdiction, it was submitted that the threat of coercive action is itself without jurisdiction and a person need not wait for injury to occur before seeking the Court’s protection.37 Mr. Salve emphasised the importance of the observations made in S.M.D. Kiran Pasha v. Government of A.P. and Ors. , where the Court recognized that “if a 35 K.K. Kochunni v. State of Madras, AIR 1959 SC 725, at 729-730; D.A.V. College v. State of Punjab (1971) 2 SCC 261, at para 5; Anita Kushwaha v. Pushap Sudan (2016) 8 SCC 509, at para 42. 36 Tashi Dalek Gaming Solutions Ltd. v. State of Karnataka (2006) 1 SCC 442. 37 Chief of Army Staff v. Major Dharam Pal Kukrety (1985) 2 SCC 412. threatened invasion of a right is removed by restraining the potential violator from taking any steps towards violation, the rights remain protected and the compulsion against its violation is enforced.”38 Mr. Salve further relied on Bengal Immunity Co. Ltd. v. State of Bihar and Ors., wherein the Court observed “It is, therefore, not reasonable to expect the person served with such an order or notice to ignore it on the ground that it is illegal, for he can only do so at his own risk and peril.”39 The certainty of a legal proposition qua the right of a person was, thus, emphasised by this Court observing “a person placed in such a situation has the right to be told definitely by the proper legal authority exactly where he stands and what he may or may not do.”40 67. The plea raised by Mr. Salve is on the premise that even if a right of privilege validly accrued, the same would have to be narrowly construed and reconciled with the petitioner’s right under Part III of the Constitution . The First and Second Impugned Summons addressed to Petitioner No.1 explicitly stated that it was so addressed to him as the one “spearheading Facebook”, and thus, no option was left to Facebook to 38 (1990) 1 SCC 328, at para 14. 39 (1955) 2 SCR 603 at para 7. decide who would appear before the Committee. Of course, with the recall of the Second Impugned Summons and the issuance of the New Summons; this aspect urged before the recall of the first notice would not really survive. 68. Learned counsel, once again, took us to Article 194(3) of the Constitution to contend that it provided that privilege powers would, from time to time, be defined. The submission was that the Constitution makers had envisaged a clear ambit to be defined for privilege powers, which has unfortunately never happened. That is why, the plea has been made to the effect that either this Court defines the privilege power or direct/request the legislature to at least consider the issue of defining these privilege powers on the pari materia basis as in Scotland and Wales. In the context of the language of Article 194(3), it was submitted that only such privileges are available to legislatures that can be exercised without impinging on fundamental rights. 69. In the conspectus of this general proposition, it was urged that the summons issued to the petitioner violated his right to remain silent which was not limited to Article 20 (which was inapplicable by virtue of these not being criminal proceedings); but also implicit in his rights under Article 19(1)(a) and Article 21 of the Constitution. The right of personal autonomy has been held by this Court to include aspects of the choice between speaking and remaining silent.41 70. The summons per se, as per the submissions, were violative of the petitioner’s right against arbitrary State action under Articles 14, 19, and 21 of the Constitution. Learned counsel was conscious of the judgment of this Court in MSM Sharma42 and the view expressed therein about powers, privileges, and immunities available in terms of Articles 105(3) and 194(3) of the Constitution. The Court had taken the view that such powers, privileges, and immunities stood in the same position as Part III of the Constitution and that the fundamental right to free speech and expression under Article 19(1)(a) must yield to Article 194. Mr. Salve sought to distinguish this proposition in view of subsequent judicial developments. The principle propounded was submitted to have been eroded by subsequent constitutional developments as per which the right to free speech under Article 19 was to be seen as part of a trilogy of rights 41 Selvi and Ors. v. State of Karnataka (2010) 7 SCC 263; K.S. Puttaswamy and Anr. v. Union of India and Ors. (2017) 10 SCC 1; Excel Wear v. Union of India & 42 Supra note 14. along with Articles 14 and 21, and the rights no longer existed in silos. It was thus, his contention, that the fundamental proposition that privileges can override Article 19 but not Article 21 stood overruled in view of the judicial pronouncements in Maneka Gandhi v. Union of India43 and R.C. Cooper v. Union of India44. It would be relevant to reproduce para 6 of Maneka Gandhi45 as it traces the constitutional development in this regard through various judicial pronouncements as under: “6. We may at this stage consider the interrelation between Article 21 on the one hand and Articles 14 and 19 on the other. We have already pointed out that the view taken by the majority in A.K. Gopalan case [AIR 1950 SC 27 : 1950 SCR 88 : 51 Cri LJ 1383] was that so long as a law of preventive detention satisfies the requirements of Article 22, it would be within the terms of Article 21 and it would not be required to meet the challenge of Article 19. This view proceeded on the assumption that “certain articles in the Constitution exclusively deal with specific matters” and where the requirements of an article dealing with the particular matter in question are satisfied and there is no infringement of the fundamental right guaranteed by that article, no recourse can be had to a fundamental right conferred by another article. This doctrine of exclusivity was seriously questioned in R.C. Cooper case [(1970) 2 SCC 298 : (1971) 1 SCR 512] and it was over-ruled by a majority of the full Court, only Ray, J., as he then was, dissenting. The majority Judges held that though a law of preventive detention may pass the test of Article 22, it has yet to satisfy the requirements of other fundamental rights such as Article 45 Supra note 43. 71. We may note in the end an aspect which was raised in the writ petition, but not really contended on behalf of the petitioners: a similar question related to the interplay between the State Legislature’s privilege powers under Article 194(3) and a non-member’s fundamental rights was pending before a 7-Judge Bench of the Supreme Court in N. Ravi v. Legislative Assembly46 on account of a perceived conflict between MSM Sharma47 and Special Reference No.1 of 196448. Dr. Singhvi mentioned this issue only to distinguish and state that N. Ravi49 was a case that related to the conviction of a non-member which is not so in the facts of the present case. 72. Dr. Singhvi, on behalf of Respondent No.1, once again, at the threshold submitted that akin to the privileges issue, this issue is also premature as no coercive action has been taken against the petitioner and none was intended if the authorised representative fairly attended and participated in the proceedings as a witness. The transparency of the proceedings was sought to be emphasised as there was a live broadcast 47 Supra note 14. and therefore there could be no question of any apprehension in respect of the proceedings. 73. Learned counsel also sought to assail the maintainability of the writ petition because Petitioner Nos. 2 & 3 are not citizens of India and no shareholder had been impleaded as a petitioner. But then one must note that the initial summons was sent to Petitioner No.1, who is a citizen of India, albeit holding an office in Petitioner No.2 organisation. Subsequently, the summons issued to him was withdrawn and re-worded summons was issued. However, the parties had agreed to proceed on the basis of existing pleadings and questions raised. We are thus, not inclined at the threshold itself to look into this contention with any seriousness. 74. Insofar as the submission about the summons issued to Petitioner No.1 is concerned (even though summons was withdrawn), it was urged that a witness could not claim his right to remain silent or to be let alone in response to a summon to depose before a lawful committee of an empowered legislature. Such a right was not a fundamental right under Article 20 of the Constitution unless a person is an accused; as was the case in Selvi50 which involved rights of an accused in context of narco 50 Supra note 41. analysis and other tests. Petitioner No.1, and for that matter anyone who deposes, is not an accused. There is no conflict between Article 19(1)(a) of the Constitution and Rule 174 of the Rules. The right to remain silent is relevant only in criminal investigations. The proceedings before the Committee are not criminal or judicial proceedings. There is no accused before the Committee. All persons who appear before it are witnesses and subject to examination by the members as per the Rules of the House. These Rules have been made in exercise of the powers conferred under Section 33 of the GNCTD Act, which in turn draws its strength from Article 239AA(7) of the Constitution. Thus, it was submitted that the mere summons to give expert deposition before the Committee on the issues falling within the remit of the Committee cannot be said to be a violation of any fundamental rights so as to invoke Article 32 of the Constitution. We may note at this stage that the third issue we will deal with is the perceived remit of the Committee and whether the remit has the sanction of the Constitution in the context of division of subject matter under the three Lists of the 7th Schedule. 75. The distinction between members and non-members carved out by Mr. Salve was sought to be brushed aside by Dr. Singhvi by submitting that there was no such distinction as Article 105(4) uses the expression “in relation to persons”. The apprehension about self-incrimination was also urged to be misconceived in view of the constitutional protection envisaged under Article 105(2) of the Constitution. 76. Dr. Singhvi then engaged with the arguments of the petitioners regarding encroachment of fundamental rights, the submissions originally addressed by both parties being in the context of Petitioner No.1. In this regard, it was submitted that not even a prima facie case was established for the breach of any fundamental right. Petitioner No.1 had not been summoned to speak as a private individual but to speak on behalf of Petitioner No.2. Only a shareholder could have asserted the right on behalf of Petitioner Nos. 2 & 3, as they were corporate entities, because individuals’ rights are not to be subsumed in the company.51 77. We may note that surprisingly, Dr. Singhvi sought to urge that Petitioner No.1 has not been summoned to speak as a private individual but to speak for Petitioner No.2. We are saying this is surprising because the New Summons also permits any suitable officer to speak on behalf of 51 Supra note 44; Bennett Coleman & Ors. v. Union of India (1972) 2 SCC 788; Divisional Forest Officer v. Bishwanath Tea Co. Ltd. (1981) 3 SCC 238. Petitioner No. 2 and if a shareholder can urge a right under Article 32 of the Constitution, we fail to appreciate why an officer of a corporation to the extent he has been asked to speak cannot urge this aspect. The First and Second Impugned Summons were specifically addressed to Petitioner No.1 and only during the course of arguments, facing certain difficulties (which somehow Dr. Dhavan did not consider relevant) the initial summons was withdrawn and a new summons issued. 78. The more relevant submission is that in the context of Article 21, at this stage, only a summons to appear was issued and there was no question of restriction of personal liberty. The proceedings were not for breach of privilege. No coercive action was taken or was intended if Petitioner No.1 (or any other officer) merely appeared and assisted the Committee as a witness. On the issue of right to privacy under Article 21, it was urged that Article 21 itself would have to be read as confined to a person while a corporation has no personhood.52 79. The argument of Mr. Salve, based on the trilogy of rights under Articles 14, 19, and 21, was submitted by Dr. Singhvi to be out of context 52 Chiranjit Lal Chowdhury v. Union of India 1950 SCR 869; Petronet LNG Ltd. v. Indian Petronet Group and Anr. (2009) 158 DLT 759. in the present case as the Constitution sets clear parameters for the applicability of certain fundamental rights. Article 19 is still available only to citizens. Article 21 is available only to humans who are capable of having personhood and Article 19(1)(a) continues to be unavailable when legislative privilege is invoked especially if the legislatures are to function effectively. In that context it was urged that the ratio of the decisions in MSM Sharma53 and In Special Reference 1 of 196454 still hold good. On the right to remain silent, it was urged that this was not a right protected under Article 19(1)(a) of the Constitution as it was not a general right; and if at all this right had to be pleaded, it was to be before the legislature which had summoned Petitioner No. 1, and not before the Supreme Court. If silence is to be pleaded for a good reason in response to a specific question, that request should be dealt with by the Committee as per applicable rules. Reliance in the petition on the pending reference in N. Ravi55 would be of no avail to the petitioners as there has been no punishment for any breach so far, making the present case 53 Supra note 14. 80. Dr. Dhavan while advancing his case on behalf of the Committee sought to lift the corporate veil between Petitioner Nos. 1 & 2, as the true petitioner is Facebook and not Ajit Mohan. The purpose of the summons was to seek Facebook’s assistance regarding its role as a social media platform/intermediary in a situation like the Delhi riot, where persons had deposed before the Committee and pointed out the aggravation which had taken place because of platforms like Facebook. The summons had been issued to Facebook’s senior representative who could be of assistance and the summon itself had made it clear that this notice was issued to Facebook India, not to a specific individual: inasmuch as the notice was issued to Petitioner No.1 in his capacity as a representative of Facebook. Thus, it was contended that neither Article 32 nor Article 19(1)(a) of the Constitution were available to the petitioners as these rights do not extend to corporations. This was stated to be of significance as the petitioner had claimed the right against compelled speech under Article 19(1)(a) of the Constitution. As far as corporations are concerned, there are no personal liberties for corporations though they have certain 56 Supra notes 44 and 51. 81. Learned counsel took us through Article 194(3) to emphasise that it has two parts. The first part deals with privileges being enacted statutorily, while the second part states that until such a law is enacted, legislative privileges are frozen as they stood on 20.06.1979. A trilogy of pre-1979 cases authoritatively discussed which fundamental rights are attracted in relation to a breach of privilege. 57 MSM Sharma58 declared that the relevant portion of the Ganupati Keshavan Reddy59 was obiter and therefore not binding. Thus, it was submitted that the correct legal position regarding privileges and fundamental rights was laid down in MSM Sharma60 and Special Reference No. 1 of 1964 61; i.e., Article 19 of the Constitution does not apply to exercise of privileges under Article 194(3). The relevant portion of the judgment in MSM Sharma62 as part “27. .…Article 19(1)(a) and Art. 194(3) have to be reconciled and the only way of reconciling the same is to read Art. 19(1)(a) as subject to the latter part of Art. 194(3), just as Art. 31 has been read as subject to Art. 265 in the cases of Ramjilal v. Income-tax Officer, Mohindargarh (1) and Laxmanappa Hanumantappa v. 57 Ganupati Keshavan Reddy v. Nafisul Hasan AIR 1954 SC 636 (“the Blitz case”); Supra note 14 (“the Searchlight case”); Supra note 12 (“the Legislative Assembly 58 Supra note 14. Union of India (2), where this Court has held that Art. 31(1) has to be read as referring to deprivation of property otherwise than by way of taxation. In the light of the foregoing discussion, the observations in the Madhya Bharat case (3) relied on by the petitioner, cannot, with respect, be supported as correct. Our decision in Gunupati Keshavram Reddy v. Nafisul Hasan (4), also relied on by learned advocate for the petitioner, proceeded entirely on a concession of counsel and -cannot be regarded as a considered opinion on the subject. In our judgment the principle of harmonious construction must be adopted and so construed, the provisions of Art. 19(1)(a), which are general, must yield to Art. 194(1) and the latter part of its el. (3) which are special.” 82. Dr. Dhavan in sync with the arguments of Dr. Singhvi disputed Mr. Salve’s case that Articles 14, 19, & 21 of the Constitution were integrated by R. C. Cooper63 and Maneka Gandhi64 into one single right. He submitted that the effect of these cases was only to create India’s due process as far as constitutional limitations are concerned. Each of these rights have their own independent existence and correspondingly their own independent limitations. The golden triangle does not invalidate the cases ruling that Article 194(3) of the Constitution, though subject to Article 21, was not subject to Article 19 of the Constitution. The argument of Mr. Salve was, thus, pleaded to be overstated and 63 Supra note 44. 83. In the end it was contended that no fundamental right was violated by issuance of summons to the petitioner. 84. Suffice to say that so far as learned Solicitor General is concerned no specific arguments were addressed in this behalf except that he drew attention of this Court to N. Ravi65. 85. Elaborate submissions were addressed on the first three aspects by Mr. Salve even though one of the primary issues was whether it was more speculative in character and premature, as at this stage of the assailed proceedings only summons had been issued to the petitioners. The bedrock of Mr. Salve’s submissions was based on the alleged lack of legislative competence of the Assembly and consequently of the Committee to look into the subject matter qua which the notice had been issued to the petitioners. The submission, thus, was that in the absence of any such legislative competence, the petitioners were entitled to approach the Court at this stage itself rather than being compelled to wait for further progress in the proceedings. 65 Supra note 46. 86. There were three limbs of this submission. The first limb was in respect of the statutory enactments, i.e., the IT Act, enacted by the Parliament under List I, governs and regulates Facebook. This could not be an aspect with which the State Government was concerned. In fact, this was stated to be the reason why the petitioners had willingly cooperated and appeared before the Parliamentary Committee in the past. The second limb was based on the subject matter which the Committee wanted to go into, even though it had been specifically denuded of the power as those subject matters fall within the jurisdiction of the Central Government under Entry 31 (Communications) and under Article 239AA(3)(a) of the Constitution read with Entries 1 and 2 in List II (Public Order and Police). The third limb flowed from these two issues and is based on the unique status of Delhi. He argued that the constitutional scheme specifically took away certain subject matters which would normally fall in List II and would ordinarily be dealt with by a State Assembly. However, in Delhi’s case, these powers were conferred on the Central Government. 87. He then took us through the provisions of the IT Act to contend that it is undisputed that Facebook was an intermediary within the definition of the IT Act. Section 2(1)(w) of the IT Act defines “2(1). In this Act, unless the context requires otherwise, [(w) "intermediary", with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes;]” 88. In the context of the controversy sought to be raised as regards the role of intermediaries during such law and order problems, Mr. Salve contended that this aspect was covered by the power to issue directions to block public access to any information and was thus, squarely covered by Section 69A of the IT Act. 89. The aforesaid provision and its role was not a grey area in view of the judicial pronouncement of this Court in Shreya Singhal v. Union of India.66 Thus, a well-developed procedure to deal with such issues was already in place and consequently, the matter was an occupied field by 90. Another issue raised by Mr. Salve was that the legislative domains of “public order” and “police” both stood explicitly outside the competence of the Assembly. It was contended that recommendations in matters which fall within List I or which do not fall within List II cannot be said to be legislative functions. It was stressed that the purpose for which the summons was issued, and the issue sought to be addressed by the Committee were aspects of public order and therefore they were not primary functions of the Assembly. 91. The utterances in the press conference were pointed out to contend that it was amply clear that the purpose behind its exercise was to file a supplementary chargesheet which was alien to the powers of the 92. The endeavour of Respondent No.1 had been confirmed in the reply filed by the respondents to compel Petitioner No.1 to testify as an expert witness as part of its decision “to delve into the matter of concern raised in the complaints (about Facebook)”. The complaints, in turn, dealt with content allegedly posted on Facebook and how they contributed to the Delhi riots. By respondents’ own pleadings, the endeavour of compelling Petitioner No.1 to appear before it was in a. Examine testimonies relating to Facebook’s alleged role in the b. Examine instances of inaction/inability on the part of social media platform (Facebook) to enforce its policies against c. Seek views of Petitioner No.1 as a representative of Facebook to understand Facebook India’s internal policies and their implementation. d. Ascertain (Petitioners’) views on the question whether the said company’s platform has contributed to the Delhi riots and also how these platforms could be used to strengthen unity among the citizens of Delhi in the future. 93. Conscious of the line sought to be adopted by the respondents by referring to “Cooperative Federalism”, Mr. Salve contended that the same was misconceived as it arose in a factual matrix where the Union and the State exercise overlapping powers. The exercise of power by the Assembly in question had no connection with any such area of overlap. He argued that cooperative federalism cannot be converted into an independent head of power in addition to the powers conferred by the statute. In this regard reference was made to two judicial pronouncements in K. Lakshminarayan v. Union of India & Anr. 67 and State (NCT of Delhi) v. Union of India68. 94. In order to appreciate what is meant by “cooperative federalism” in the context of what appears to be a continuous judicial battle between the Central Government and the State Government has been enunciated in State (NCT of Delhi) (2018), where the Court encouraged walking hand- in-hand even if there are different political dispensations in power. We do believe and may note at this stage that such hope has been repeatedly belied! The enunciation of the principle is set out in para 119 as under:69 “119. Thus, the idea behind the concept of collaborative federalism is negotiation and coordination so as to iron out the differences which may arise between the Union and the State Governments in their respective pursuits of development. The Union Government and the State Governments should endeavour to address the common problems with the intention to 68 Supra note 27. 69 Supra note 27 at para 119. arrive at a solution by showing statesmanship, combined action and sincere cooperation. In collaborative federalism, the Union and the State Governments should express their readiness to achieve the common objective and work together for achieving it. In a functional Constitution, the authorities should exhibit sincere concern to avoid any conflict. This concept has to be borne in mind when both intend to rely on the constitutional provision as the source of authority. We are absolutely unequivocal that both the Centre and the States must work within their spheres and not think of any encroachment. But in the context of exercise of authority within their spheres, there should be perception of mature statesmanship so that the constitutionally bestowed responsibilities are shared by them. Such an approach requires continuous and seamless interaction between the Union and the State Governments. We may hasten to add that this idea of collaborative federalism would be more clear when we understand the very essence of the special status of NCT of Delhi and the power conferred on the Chief Minister and the Council of Ministers on the one hand and the Lieutenant Governor on the other by the Constitution.” 95. Thus, Mr. Salve contended that while the Court has touched on the concept of collaborative federalism, it has also simultaneously observed in “absolutely unequivocal” terms that both the Centre and the State have to work within their spheres and not think of any encroachment. It was, thus, contended that what was sought to be done was clearly an encroachment by relying on the larger principle of cooperative 96. An important aspect has, once again, been emphasized in K. Lakshminarayan70, that the Assembly can seek to exercise power as conferred under the GNCTD Act, promulgated by the Parliament exercising its residuary powers under Entry 74 of List I. In that context it was emphasised that there is a difference between Articles 239A and 239AA of the Constitution. The former is with respect to the Union Territory of Puducherry, which simply provided purely enabling provisions while the latter contained extensive provisions among which sub-clause (7) empowered the Parliament to legislate and give effect to all the provisions. Mr. Salve assailed the endeavour of the Assembly to “clutch at a jurisdiction that is not available”. 97. In response to the Court’s queries arising from the earlier summons being superseded by the New Summons, the respondents’ contention that the aspect of privilege had not arisen, and whether the petitioners could claim to be an unaccountable platform; Mr. Salve contended that the petitioners were ready to comply with any Indian law and had been doing so. What they were not desirous of doing was to be drawn into an aspect of political divide. To emphasise this point he referred to a letter dated 70 Supra note 67. 01.09.2020 by the Union Communication Minister alleging inter alia that Facebook India was leading a concerted effort to shrink the space for dialogue for those with a right-of-centre ideology. It was, thus, submitted that on the one hand the respondents seem to allege that there was a pro- Government or a pro-right bias of Facebook while the Central Government claimed the opposite – the common factor being that both positions were for their respective political reasons by alleging bias against the petitioners albeit from different sides. Mr. Salve’s contention was that an Assembly must limit itself to its core function of legislation. Even if it were to summon a witness, this must be in relation to matters that were within its ambit as demarcated by the Court in the judgment of State (NCT of Delhi) v. Union of India 71. This judgment made it clear that in reference to the Code of Criminal Procedure, 1973, the powers in relation to the Entry of public order were conferred on the Parliament and consequently denuded from the powers of the Assembly. In that context, even if the widest amplitude was given to the Entries, that was with the objective of not restricting the legislative competence of the Parliament or the Assembly in a field which they in principle were competent to 71 Supra note 27 and Govt. of NCT of Delhi v. Union of India 2020 12 SCC 259. legislate. In the present case, one was concerned with the powers of the Central Government vis-à-vis the State Government and therefore the principle of widest meaning of entries could not result in overlapping powers as that can hardly be conducive to administrative exigencies. That it was so was obvious from the submission of the learned Solicitor General who contended that the doctrine of pith and substance would have to be applied to the reading of the entries while dealing with them to demarcate the ‘Lakshman Rekha’ for the Parliament and the State Assemblies. In the context of the controversy, it was urged, that allowing such wide reading of entries would lead to a slippery slope. 98. In the end, Mr. Salve also emphasised the ‘doublespeak’ between the stand of the counsel for the Assembly and the Committee; which was a telltale sign that the New Summons was only subterfuge to get over the possibility or anticipation of an adverse judicial consideration. The right to remain silent was a virtuous right and in today’s noisy times, should not be curbed or abrogated. 99. Mr. Datar, learned senior counsel for Petitioner No.3, once again, supporting the stand of Mr. Salve sought to urge that any powers or privileges were in turn circumscribed by the legislative competence of the Assembly. Thus, any powers or privileges have to be exercised within the assigned legislative fields. He sought to draw strength from May’s Commentary as also the Commentary of Kaul and Shakdher in this context where it was observed in the former “Disobedience to the order of a committee made within its authority is a contempt of the House.” (emphasis supplied).72 In the latter it was observed “Disobedience to the orders of a Committee of the House is treated as a contempt of the House itself, provided the order disobeyed is within the scope of the Committee’s authority…” (emphasis supplied).73 Learned counsel thereafter turned to the judicial precedents in this regard.74 100. He submitted that the powers and privileges are controlled by the basic concepts of the written Constitution which could be exercised within the legislative fields allotted to their jurisdiction by the three lists under the 7th Schedule; and the legislatures were not competent to travel 101. It was, thus, contended that if a primary legislation can be struck down for being outside the legislative domain, then a committee cannot 72 Supra note 24 at para 38.57. 73 M. N. Kaul and S. L. Shakhder, Practice and Procedure of Parliament , 303 (A. 74 Supra notes 9 and 15. 75 Supra note 20. be formed to deal with such matters. Thus, it was argued that the respondents could not say that they had the power to go into a roving and fishing inquiry before the Committee relating to all perceived fields based on a belief that the State Assembly deals with the core functions in Delhi. Its legislative competence by various entries should not be read in such an expansive manner as to not be restricted by specific exclusions, at least for the purposes of discussion. 102. Mr. Datar then turned to judicial precedents from the United States to analyse the similar federal structure of governance in both India and USA. The cases dealt with enquires by the Congress. 103. In Watkins v. United States76 it was observed that “no enquiry is an end in itself, it must be related to a legitimate task of Congress.” Thus, academic enquiries cannot be undertaken – it is only what is within the powers of the Congress that can be enquired into. “Broad is the power of inquiry, but not unlimited.”77 Such power of enquiry of the Congress is limited to its “legitimate tasks”, which would imply legislative competence in the present case. 76 354 US 178 (1957) at pg. 187. 104. We may note at this stage that a plea was advanced by Dr. Dhavan that this judgment stood overruled in Barenblatt v. United States78 and Eastland v. United States Servicemen’s Fund79. Mr. Datar clarified that the aspect he was seeking to rely upon the judgment for was not only not overruled, but there was confirmation on the limits on the power of inquiry of the Congress as laid down in Watkins80. 105. He next referred to the judgment in Howard Jarvis Taxpayers Association v. Padilla81 for the observation that the legislature may not use its powers to “defeat or materially impair” the exercise of its fellow branches’ constitutional functions, nor “intrude upon a core zone” of another branch’s authority. The investigative powers may not be used to trench upon matters falling outside the legislative purview and the investigative power permits inquiry only into those subjects in reference to which the legislature has power to act. 106. In the context of the requirement of reading of entries widely, Mr. Datar contended that the power to legislate conferred by Article 239AA(3)(a) was in respect of matters in List II except Entries 1, 2 & 18. 78 360 US 109 (1959) at pg. 111-112. 79 421 US 491 (1975) at pg. 504. 80 Supra note 76. 81 62 Cali 486 (2016) at pg. 499. If the principle of reading entries widely is to be applied in this context, even the excluded entries have to be read widely as conferring the power on the Parliament. It could not be said that entries conferring power on the State Assembly were to be read widely while at the same time a restrictive meaning was to be given to entries under which powers have been specifically excluded. The phraseology “with respect to” entails that the entries encompass anything with a nexus to public order and/or the police. The powers with respect to such activities, thus, squarely lie with the Parliament. Once again, a judicial view already taken was clear and explicit, i.e., that the Assembly did not have any power – legislative or executive, over the police and its functions. 82 Thus, exempted entries would have to be read in substance and not hyper-technically, and Article 239AA would have to be read contextually as also widely to include all ancillary and subsidiary matters. This in turn denuded the Assembly and the Committee of the powers to legislate or enquire into that aspect. As such, what has been specifically denied to the Assembly could not be achieved through Committees under the garb of “peace and harmony.” The Assembly had no jurisdiction to address violence and communal 82 Govt. of NCT of Delhi v. Union of India 2020 12 SCC 259. riots, if Entries 1 & 2 of List II are interpreted as submitted. In the end there could be no power even to investigate these matters. 107. The Committee, it was argued, was a creation of the Assembly and could not have a larger jurisdiction than the Assembly itself. The Bulletin issued on 02.03.2020 suggested that the Committee was formed to deal with matters falling in Entries 1 & 2 of List II while stating this to be “in view of the recent communal riots and violence….”. This made it amply clear that the Committee was meant to deal with the violence and disturbance caused to public order during the riots. The expression “public order” has to be interpreted broadly and would encompass communal peace and harmony. The summons issued by the Committee related to the law and order situation of Delhi for which the Assembly had no power to investigate or formulate law. If there was no competence with regard to such matters, the summons in that context would be without jurisdiction and, thus, void ab initio. 108. Since cooperative federalism was propagated as the basis to justify the constitutionality of the actions of the respondents, it was submitted that the same would not amount to a license to place reliance on Entries 1 & 2 of List III to sidestep the explicit exclusion in Article 239AA(3)(a) of the Constitution. The relevant Entries are as under: 1. Criminal law, including all matters included in the Indian Penal Code at the commencement of this Constitution but excluding offences against laws with respect to any of the matters specified in List I or List II and excluding the use of naval, military or air forces or any other armed forces of the Union in aid of the civil power. 2. Criminal procedure, including all matters included in the Code of Criminal Procedure at the commencement of this Constitution.” 109. The matters relating to criminal law would not include power to legislate on issues pertaining to public order and communal peace and harmony as the same is traceable to “public order”, if the latter is to be interpreted broadly. 110. Mr. Datar further argued that Entry 45 of List III, which relates to inquiries, cannot enable the Assembly to inquire into public order, police functions or communications. The power of inquiry has to be directly related to the legitimate subjects over which the Assembly has powers to legislate. To buttress his argument on the concept of collaborative federalism, Mr. Datar relied upon the observations of this Court in State (NCT of Delhi) v. Union of India 83 which held that “both the Centre and the States must work within their spheres and not think of any 111. Mr. Datar argued that obviously the Central Government and the State Government had different perceptions as to what transpired in Delhi and it can hardly be disputed that it was a law and order issue arising from communal riots. This was not an aspect that either the Assembly or any of its committees could deal with. If the Assembly cannot legislate on a subject, it cannot explore the same under an executive investigation. The mere reluctance to participate could not be threatened with a breach of privilege and the subject matter being dealt with by the Committee was outside the purview and power of the Assembly. 112. Mr. Datar emphasised that the role of Facebook was of an intermediary and, thus, the relevant regulatory mechanism was under the IT Act. He went as far as to contend that there was no jurisdiction to examine Facebook, as its operations were covered by Entry 31, List I, under “other forms of communication”. Since the Parliament has overriding power to legislate with respect to entries in List I under Article 83 Supra note 27. 246(1) of the Constitution, the Assembly could not intervene in matters relating to intermediaries/other forms of communication. In addition, it was urged that this special entry of “communication” overrides the general entries of “inquiries” and “criminal law” (List III), which the Delhi Assembly had attempted to rely on.84 113. Learned counsel next turned to Section 79 of the IT Act which deals with exemption from liability of intermediaries in certain cases. 114. Mr. Datar finally urged that an intermediary like Facebook has no control over the content hosted on it and is in fact, prohibited from knowing the substance of the content on their platform or exercising any control over the same except as prescribed by law. It was, thus, submitted that an intermediary cannot be held liable for any third party data/information made available/hosted by them. Facebook was simply a platform where messages are transferred from one person to the other. Whatsapp, Signal, Telegram are even end-to-end encrypted. These are intermediaries who are not liable for third party information hosted on them. The only obligation which Section 79 of the IT Act imposes is that of due diligence on the part of intermediaries as Facebook did not initiate 84 Kerala State Electricity Board v. The Indian Aluminium Co. Ltd. (1976) 1 SCC the transmissions, nor controlled the same. Hence, they cannot be held liable and any action taken against intermediary has to be in the manner prescribed by the Act.85 It was stated that the New Summons did not change the position in any way as the content of the inquiry was the 115. Dr. Singhvi, seeking to rebut the arguments canvassed on behalf of the petitioners sought to emphasise that it is not appropriate to equate the expression “peace and harmony” with “law and order” as the former was a much broader term. In any case, Legislative Assemblies have wide inquisitorial powers,86 i.e. areas which are otherwise not available to a legislature for legislative interference are still available to a committee of the legislature. The relevant para from Kalpana Mehta reads as under: “335. Various committees of both Rajya Sabha and Lok Sabha are entrusted with enormous duties and responsibilities in reference to the functions of the Parliament. Maitland in 'Constitutional History of England' while referring to the committees of the Houses of British Parliament noticed the functions of the committees in the following “...Then again by means of committees the Houses now exercise what we may call an inquisitorial power. If anything is going wrong in public affairs a committee may be appointed to investigate the matter; witnesses can be summoned to give evidence on oath, and if they will 85 Supra note 66. not testify they can be committed for contempt. All manner of subjects concerning the public have of late been investigated by parliamentary commissions; thus information is obtained which may be used as a basis for legislation or for the recommendation of administrative reforms.” 116. This was stated to be in furtherance of the legislative competence of an Assembly and in exercise of the Committee’s inquisitorial powers to make the best possible recommendations. 117. Dr. Singhvi contended that selective extracts of the press conference cannot be the basis for giving a different meaning to the proceedings than the Terms of Reference. He sought to clarify that the scope of the Committee was purely recommendatory, including making positive recommendations to ensure peace and harmony in the NCT of Delhi in the future which relates to various heads of competence of the Assembly in List II and List III of the 7th Schedule. No federal unit can function in the absence of peace and harmony amongst various groups of people who reside, live and work in that federal unit. Thus, the domain of peace and harmony in the NCT of Delhi is something very broad and inherent to the legislature of the federal unit and encompasses within it many areas of competence of the Assembly both in List II and List III. It was further contended that “fraternity” is a preambular value which, like equality and liberty, imbues the functioning of the entire Constitution. He referred to Entry 39 of List II relating to “Powers, privileges and immunities of Legislative Assembly” to emphasise that enforcement of attendance of persons for giving evidence or producing documents before committees of the Legislature of the State was an intrinsic part of its functions. This coupled with Entry 45 of List III dealing with Inquiries and Statistics for the purposes of any of the matters specified in List II or List III would completely cover the aspects sought to be gone into by the 118. Dr. Singhvi, in support of the manner in which such committees can function and their remit, referred to three judicial pronouncements from the United States: (i) Eastland v. The United States Servicemen’s Fund87, (ii) Watkins v. United States88 and (iii) Barenblatt v. United States89. The common thread which permeates these judgments is that the power to investigate is inherent in the power to make law as a legislative body cannot legislate wisely or effectively in the absence of information with respect to the conditions that the legislation is intended 87 Supra note 79. to affect or change. In that context, the issuance of subpoenas could be exercised by a committee acting on behalf of the House. It was thus said: “To conclude that the power of inquiry is other than an integral part of the legislative process would be a miserly reading of the Speech or Debate Clause is derogation of the integrity of the legislature.”90 119. Such an inquiry was not in turn circumscribed by what the end result would be: “Nor is the legitimacy of a congressional inquiry to be defined by what it produces.” 91 Such investigative function was akin to any research with the possibility of researchers ending up in some “blind alleys” and into non-productive enterprises, as “to be a valid legislative inquiry there need be no predictable end result.” 92 120. On the duty of a citizen to cooperate with US Congress in an effort to obtain the facts, it was held to be an “unremitting obligation to respond to subpoenas, to respect the dignity of the Congress and its committees and to testify full with respect to matters within the province 90 Supra note 79. 121. On an aspect of teaching which is pursued in educational institutions, it was observed that inquiries cannot be made into a constitutional protection against the freedom to teach. But this would not preclude the Congress from interrogating a witness merely because he is a teacher. Thus, “an educational institution is not a constitutional sanctuary from inquiry into matters that may otherwise be within the constitutional legislative domain merely for the reason that inquiry is 122. Dr. Singhvi submitted that it was inappropriate for the petitioners to link the competence to discuss the subject matter with the powers to exercise privilege. The Terms of Reference that define the scope and competence not having been challenged, it was submitted that it was not appropriate for the petitioners to invite a view of this Court on the competence of the Committee. The argument about excluded Entries was labeled as a “smokescreen”. In the context of the claim of exclusion arising from Entries it was submitted that any such exclusion would have 94 Supra note 78. 95 Synthetics and Chemicals Ltd. v. State of U.P. (1990) 1 SCC 109. 123. Dr. Dhavan adopted the same line of argument as Dr. Singhvi, referring to the same judicial pronouncements. He submitted that the holding in Watkins96 was based on Chief Justice Warren’s exclamatory resentment of McCarthyism in the 1950s and has since been criticized as unnecessarily limiting the powers of Congress. On the same lines were the subsequent judgments of the Supreme Court which settled major issues of congressional authorisation and relevance of the first amendment.97 The view taken thereafter by the US Supreme Court reinforces powers of the Committee rather than undermines them. 98 The essence of American Law, he contended, is that when you are summoned, you must appear but can plead the fifth amendment in not answering 124. Dr. Dhavan proceeded with his arguments on a larger canvas that the Delhi Government was empowered to cover every aspect of its governance, and peace and harmony could not be equated solely with police functions and public order. The argument can be said to be on four different planes: (i) harmonious interpretation of entries; (ii) the ragbag 96 Supra note 76. 97 Wilkinson v. United States 365 US 399 (1961); Braden v. United States 365 US 98 Supra note 79. approach; (iii) wide scope of inquiries under Entry 45 of List III; and (iv) executive power must be interpreted widely. The emphasis of Dr. Dhavan’s argument was that communal harmony is an important part of Delhi’s governance that goes beyond the limited remit of police functions and public order. The incident of February, 2020 in Delhi was stated to prove that in addition to affecting public order, communal disharmony has a harmful effect on trade and commerce, transportation, education and governance generally. Considering the implication of these domains, it was contended that it would be deeply harmful if the police were the sole custodians of peace and harmony. The initial course of action requires people to be educated and that governing authorities liaise with them in order to calm tensions. To agree to the submissions of the petitioners would be to permit the argument that there was none in the Delhi Government who could address the issue of peace and harmony. On a larger canvas, the message that would permeate to non-members would be that they could get away by not appearing before the Legislative Assemblies, as the latter had no power to compel their appearance. It was submitted that this would make the entire system of Committee proceedings farcical. The need for harmonious construction required that legislative entries must be given the widest amplitude and, thus, he submitted that it was the duty of the Court to reconcile entries that may appear to overlap or may be in direct conflict.99 125. Dr. Dhavan sought to introduce the concept of ragbag legislation, submitting that this was an expression used by the Indian Supreme Court in income tax jurisprudence.100 The ragbag approach suggested that legislative and executive powers need not be traced to only one entry, but may instead be traced to multiple entries in the relevant list in the 7 th Schedule. Thus, this perspective of multiple entries may empower the Committee to consider peace and harmony – some that were directly applicable like education, and others that applied indirectly like trade and commerce. Peace and harmony was a concept much beyond public order and police, and illustrations of the same were given from List II and List III. The relevant portions of List II and List III as given in the 7 th 5. Local government, that is to say, the constitution and powers of municipal corporations, improvement trusts, districts boards, mining settlement authorities and other 99 Jilubhai Nanbhai v. State of Gujarat (1995) Supp. 1 SCC 596. 100 Ujagar Prints (II) v. Union of India (1989) 3 SCC 488. local authorities for the purpose of local self-government or village administration. 6. Public health and sanitation; hospitals and dispensaries. 7. Pilgrimages, other than pilgrimages to places outside 10. Burials and burial grounds; cremations and cremation 12. Libraries, museums and other similar institutions controlled or financed by the State; ancient and historical monuments and records other than those [declared by or under law made by Parliament] to be of national importance. 13. Communications, that is to say, roads, bridges, ferries, and other means of communication not specified in List I; municipal tramways; ropeways; inland waterways and traffic thereon subject to the provisions of List I and List III with regard to such waterways; vehicles other than mechanically propelled vehicles. 17. Water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power subject to the provisions of entry 56 of List I. 22. Courts of wards subject to the provisions of entry 34 of List I; encumbered and attached estates. 24. Industries subject to the provisions of [entries 7 and 52] 26. Trade and commerce within the State subject to the provisions of entry 33 of List III. 27. Production, supply and distribution of goods subject to the provisions of entry 33 of List III. 28. Markets and fairs. 32. Incorporation, regulation and winding up of corporations, other than those specified in List I, and universities; unincorporated trading, literary, scientific, religious and other societies and associations; co-operative 35. Works, lands and buildings vested in or in the possession of the State. 37. Elections to the Legislature of the State subject to the provisions of any law made by Parliament. 39. Powers, privileges and immunities of the Legislative Assembly and of the members and the committees thereof, and, if there is a Legislative Council, of that Council and of the members and the committees thereof; enforcement of attendance of persons for giving evidence or producing documents before committees of the Legislature of the State. 65. Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List.” 1. Criminal law, including all matters included in the Indian Penal Code at the commencement of this Constitution but excluding offences against laws with respect to any of the matters specified in List I or List II and excluding the use of naval, military or air forces or any other armed forces of the Union in aid of the civil power. 3. Preventive detention for reasons connected with the security of a State, the maintenance of public order, or the maintenance of supplies and services essential to the community; persons subjected to such detention. 8. Actionable wrongs. 12. Evidence and oaths; recognition of laws, public acts and records, and judicial proceedings. 15. Vagrancy; nomadic and migratory tribes. 16. Lunacy and mental deficiency, including places for the reception or treatment of lunatics and mental deficients. 20. Economic and social planning. 23. Social security and social insurance; employment and 25. Education, including technical education, medical education and universities, subject to the provisions of entries 63, 64, 65 and 66 of List I; vocational and technical training of labour. 28. Charities and charitable institutions, charitable and religious endowments and religious institutions. 33. Trade and commerce in, and the production, supply and (a) the products of any industry where the control of such industry by the Union is declared by Parliament by law to be expedient in the public interest, and imported goods of the (b) foodstuffs, including edible oilseeds and oils; (c) cattle fodder, including oilcakes and other concentrates; (d) raw cotton, whether ginned or unginned, and cotton seed; (e) raw jute. 39. Newspapers, books and printing presses. 40. Archaeological sites and remains other than those [declared by or under law made by Parliament] to be of national importance. 45. Inquiries and statistics for the purposes of any of the matters specified in List II or List III.” 126. Dr. Dhavan further submitted that the constitutional obligation to take preventive action to ensure non-discrimination provided for the Government’s duty to examine and recommend action in respect of peace and harmony as also to protect religion, cultural rights and dignity of individuals as envisaged in various constitutional provisions, i.e., Articles 14, 15, 16, 17, 21, 25 to 30, 39A, 39(b), 40, 41, 46 and 47. These provisions are really an amalgam of fundamental rights and directive principles of state policy. Considerable emphasis was placed by Dr. Dhavan on Entry 45 in List III, which is a self-standing entry that has been given the widest amplitude by this Court. 101 This entry deals with the executive power to make committees of inquiry. In that context it has been observed that these inquiries would encompass any matter enumerated in any of the Lists and would not be confined to those matters as mere heads of legislative topics – extending the inquiries into collateral matters. Further referring to Entry 39 of List II, Dr. Dhavan 101 Sriram Krishna Dalmia v. Justice Tendolkar 1959 SCR 279 at pgs. 289, 291. urged that this entry was wide enough from a bare reading to include the power to summon non-members having used the expression of “enforcement of attendance of persons”. 127. The thread which permeated Dr. Dhavan’s arguments was that the task of governance is much wider than merely drafting legislation and executing it. Executive power would collapse if it were to be reduced to simply executing the laws enacted by the Legislature and, thus, the Supreme Court had explained that executive power without law had to be 128. After having dealt with the four aspects referred to aforesaid, Dr. Dhavan sought to respond to Mr. Salve’s argument of the legislative domain being occupied by the IT Act. It was Dr. Dhavan’s submission that the IT Act was an example of “cooperative federalism” as the Act empowered both the State and the Centre in terms of the definition of “appropriate government” in Section 2(e). Thus, provisions such as Section 6 and 69 of the IT Act could refer to either the Centre or the State and the legislative domain could not be said to be exclusively occupied by the Centre. This is more so in the context of a mere summons that 102 Rai Sahib Ram Jawaya Kapur v. State of Punjab (1955) 2 SCR 225. required the petitioner’s appearance without reaching the stage at which punitive action may be considered. The Committee was submitted not to be engaged in any inquisitorial exercise but was only limited to aid in the spirit of cooperative federalism. 129. Cooperative federalism was contended not to be a source of power but rather a part of the principles that underlie the Constitution. It was a method of communication that makes federalism more effective requiring both Centre and State to work together to address common problems. Thus, the State could not exist without collaborative or cooperative federalism.103 This was stated to be of even greater significance in light of the tug of war between the Centre and the State in respect of the unique position of the Delhi Legislative Assembly. As such, peace and harmony issues ought to be resolved by a coordinated effort. He did, of course, concede that the history of two governments was testament to a tussle which was closer to being competitive rather than collaborative. 130. Dr. Dhavan, thus, concluded his arguments by submitting on this 103 Supra note 27. (a) it was not his contention that conventions and broad concepts (b) underlying principles, however, are fundamental to both interpretation of the Constitution and powers exercised through the (c) a recommendatory committee has a duty to inform the Central Government of the problems it encounters so that organs of Government can act in furtherance of this principle of cooperative (d) the Committee by itself did not claim the power to punish the breach though it does possess the power to summon without penal consequences. It could at best make a recommendation which would have to be examined by the House through the process of a privileges committee. This was a routine part of every summon, only indicative of the power of the Parliament/Assembly. 131. Mr.Tushar Mehta, learned Solicitor General sought to advance submissions substantially on this aspect as there was a conflict in the stands taken by the State and the Central Government on this issue. As noticed earlier – while on the one hand he was with the State Government on the issue of the right to summon per se, a difference arose on account of his argument that in the given factual situation, the power to summon vested solely with the Central Government. Mr. Mehta referred to Article 212 of the Constitution, which reads as under: “212. Courts not to inquire into proceedings of the (1) The validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure. (2) No officer or member of the Legislature of a State in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers.” 132. It was his submission that proper effect should be given to the above provision and the Court did not really have the power to deal with the functioning/internal administration of the Parliament/Assemblies and the committees thereof. There was, however, a narrow scope of judicial review permitted in the present case as the person involved was not a member of the House. The enquiry being ultra vires the powers conferred on the Assembly, he contended that the subjects specifically excluded by the Constitution could not be surreptitiously brought within the purview of the Assembly by categorising the issue as “peace and harmony.” It was intrinsically a law and order issue, which was an occupied field and also an excluded field so far as the Assembly was 133. While accepting that privilege was necessarily connected with legislative power, the same (if the aspect so arose) would have to be considered in the context of legislative competence. The plenary powers of the legislature were circumscribed by the written Constitution which set out the legislative fields allotted to each of their jurisdictions by the three Lists in the 7th Schedule putting an embargo on the Legislatures to travel beyond the entries in their respective lists.104 134. Learned Solicitor General sought to emphasise on the unique case of Delhi with reference to its excluded entries. It was not at par with any other State Assembly. Delhi was the national capital and thus, the law makers had consciously made a provision keeping this larger picture in mind and reserving to the Parliament three entries which would otherwise be available in List II to the State Assemblies. In the absence of legislative competence, it would be a colourable exercise of power to engage in the subject matter. The formation of a “peace and harmony” 104 Supra note 12. committee was stated to be one such colourable exercise of power. This became apparent from the summons issued which explicitly provided that, in effect, the Committee was dealing with law and order and the police. The battle between the Centre and the State qua Delhi which gave rise to the previous judicial pronouncements, clarified which of the two had powers qua specific excluded entries. It would be a betrayal of the mandate of these judgments which had upheld the rationale behind exclusion of entries drawing from the unique position of Delhi.105 135. The pith and substance argument was sought to be advanced to contend that reliance on entries in List II and List III was not justified if the matter directedly related to excluded entries.106 136. Learned Solicitor General, while accepting the proposition that entries have to be read widely, submitted that where there is a specific entry dealing with a particular subject, that specific entry would prevail to the exclusion of the general entry.107 The entries relied upon by the respondents were general in nature, while the entries of “law and order” and “police” were specific and thus, must prevail. The subsequent 105 Supra notes 27 and 82. 106 A.S. Krishna v. State of Madras AIR 1957 SC 297 at para 8; Kartar Singh v. State of Punjab (1994) 3 SCC 569 at para 60; Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra & Ors. (2010) 5 SCC 246 at para 40. 107 Supra note 84. executive action was also not permissible for the Assembly as the Central Government had sole jurisdiction even over executive matters relatable to those entries in view of Article 73 of the Constitution. The executive powers were mandated to be co-terminus with legislative competence and the legislature could not be allowed to intervene through the indirect method of committees and its privilege, thereby overreaching the 137. The principle of cooperative and collaborative federalism was not disputed but then it was urged that the summons did not say that the Assembly and the Committee wanted to give any recommendations. This was only a defence and an afterthought. By way of example, Mr. Mehta averred that on a defence strategy matter, the Assembly could not be permitted to call the Chief of Defence Staff (CDS). In fact, it was submitted that cooperative/collaborative federalism required the Assembly to function within the confines of the powers conferred on it and not commit an overreach – to read it otherwise would be combative or competitive federalism. 138. On the doctrine of occupied field, it was urged that the subjects which the Committee sought to go into were already occupied by the Parliament. Facebook was an intermediary, and in that regard would be covered under “communication”, which is Entry 31 of List I. In fact, all three fields of intermediaries, law and order or police were occupied by the Parliament. There was no perceived conflict of entries and the specific omission of Entries 1 & 2 of List II and the presence of Entry 31 of List I, clearly indicated which fields were specifically occupied by the Parliament and what has been specifically omitted for the Assembly.108 139. It was submitted that the Parliamentary Standing Committee on Information Technology was already in seisin of the aspect of “Safeguarding citizens’ rights and preservation of misuse of social/online news media platforms including special emphasis on women security in the digital space”. It was in pursuance thereto that a notice was issued to Petitioner No.1 on 20.08.2020 to provide his views and the said petitioner duly appeared before that Committee on 02.09.2020. There was, thus, no occasion for the Committee to go into this aspect. 140. On the aspect of the IT Act, a field occupied by the Parliament, it was submitted that even rules have been framed thereunder including the 108 ITC Ltd. v. State of Karnataka 1985 Supp SCC 476 at paras 17, 32; Hoechst Pharmaceuticals Ltd. v. State of Bihar (1983) 4 SCC 45 at para 51; Offshore Holdings (P) Ltd. v. Bangalore Development Authority (2011) 3 SCC 139 at para IT (Procedure and Safeguards for Blocking for Access of Information by Public) Rules that provide an elaborate procedure for blocking of information by an online intermediary and their criminal liability for failing to do so. The IT Act has been formulated under Entry 31 of List I, which covers “other forms of communication”. Thus, in that sense the intermediaries were beyond the competence of the Assembly. Section 69A of the IT Act specifically deals with blocking of content, including hate speech. 141. It was his submission that the legal issues involving law and order, public order, and the corresponding responsibility of online intermediaries to address hate speech on their platforms have already been addressed by the Central Government. The Assembly not having legislative competence, cannot also have the competence to examine people and prepare a report. There was no power to give recommendations and the summons did not even clarify that the exercise was for making recommendations. 142. Finally, the learned Solicitor General referred to the case in N. Ravi109 to contend that the issue in contention, i.e., the interplay of 109 Supra note 46. fundamental rights and parliamentary privileges, was already pending before a 7-Judge Bench. 143. In COVID times there have been some fast-paced developments around the world qua the role and management of intermediaries. In view of there being some time gap between the date of reserving the judgment and its pronouncement, we consider it appropriate to pen down these developments over the last four months. The UK Commons Privileges Committee published a new report on select committee powers on 03.05.2021, looking to strengthen the ability of select committees to call for persons, papers, and records. The background to this is the reluctance, or in some cases even refusal, of individuals to appear before these committees in a number of high-profile cases. The Privileges Committee has proposed a Parliamentary Committees (Witnesses) Bill, which would introduce new criminal offences relating to refusal to attend a summons or failing to provide information or documents without a reasonable excuse110. Prospect Magazine (07/05/2021), accessible at: Intermediaries and platforms have seen a hot pursuit in the US for regulating the consequences of their business. The House Energy and Commerce Committee of the US House of Representatives issued a summons to Facebook CEO Mark Zuckerberg, Google CEO Sundar Pichai, and Twitter CEO Jack Dorsey on 25.03.2021, with which they duly complied. The House Committee pointed out false claims about COVID-19 vaccines and the supposed election fraud that had proliferated on social media platforms.111 The background was the incident at the Capitol post the US Presidential Election results being declared in 2021. It is of significance to note the comments of the Chairman of the Committee, Frank Pallone that, “For far too long, big tech has failed to acknowledge the role they have played in fomenting and elevating blatantly false information to its online audiences. Industry self- regulation has failed.”112 The Chairmen of two other sub-committees remarked, “We must begin the work of changing incentives driving social Appearance Before Congress In March, CNBC (18/02/2021), accessible at: 112 House Committee on Energy and Commerce , Press Release, , E&C Committee Announces Hearing with Tech CEOs on the Misinformation and Disinformation Plaguing Online Platforms, (18/02/2021), accessible at: media companies to allow and even promote misinformation and disinformation.”113 The divergence of views between Republicans and Democrats was also evident. While the former claimed that conservative viewpoints are maligned on social media platforms, the latter sought action against misinformation and hate speech with special attention to its impact on minority communities including the LGBTQ+ community, the Black community, Asian Americans, and Latin Americans. These developments, to our mind, are apposite to be examined in the context of the argument advanced on behalf of the petitioners that they do not want to appear before the Committee on account of a divided political milieu. 144. In India, since 2020, a Joint Parliamentary Committee has been examining the Personal Data Protection Bill, 2019 in relation to the issues of data protection and security.114 The Committee summoned telecom operators Jio and Airtel as well as aggregators Ola and Uber in November, 2020. Google, PayTM, Facebook, Twitter and Amazon have 114 Ministry of Parliamentary Affairs, Press Release, Joint Committee on the Personal Data Protection Bill, 2019 Seeks Views and Suggestions , (03/02/2020), accessibleat: https://pib.gov.in/PressReleasePage.aspx?PRID=1601695. earlier deposed before this Committee115 and the report of the parliamentary committee is stated to be in its final stages. 145. A significant development has been the notification of The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 on 25.02.2021116, a day after the judgment was reserved. These rules introduce a range of due diligence measures to be implemented by intermediaries and lay down a code of ethics for digital news platforms in relation to digital media. These Rules have been assailed before different High Courts across the country including Kerala, Karnataka, Madras, and Delhi, and are currently pending consideration. 146. Yet another significant development in the context of the controversy before us, in the legislative domain, has been the amendment Truecaller Over Data Security Concerns, India Today, aaccessible at: 116 The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Notification of the Ministry of Electronics & Information Technology No. 2021 G.S.R. 139(E) (25/02/2021), accessible at: of the GNCTD Act which came into force on 27.04.2021117. The a. The term ‘Government’ referred to in any law made by the Delhi Legislative Assembly will mean the Lieutenant Governor b. The LG must reserve for the consideration of the President all bills that incidentally cover any matters that fall outside the purview of the powers conferred on the Legislative Assembly. c. Rules made by the Delhi Legislative Assembly to regulate its own procedure and conduct of business in the Assembly must be consistent with the Rules of Procedure and Conduct of Business in the Lok Sabha. d. The Delhi Legislative Assembly will not be entitled to make rules to (i) enable itself or its Committees to consider matters of day-to-day administration of the NCT of Delhi, or (ii) conduct any inquiry in relation to administrative decisions; and any such rules made prior to this amendment will be void. 117 Ministry of Home Affairs, Press Release, , Amendments to GNCTD Act, 1991 Do not Alter Constitutional and Legal Responsibilities of Elected Government in Respect of Transferred Subjects in State & Concurrent Lists (29/04/2021), accessible at: https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1714828. e. Any executive action taken by the Delhi Government will be in the name of the LG and the requirement of a prior opinion of the LG by the Delhi Legislative Assembly before it takes any executive action in respect of certain matters with such matters being specified by a general or special order issued by the LG. 147. The object of the aforesaid as per the Statement of Objects and Reasons of these amendments is stated to be to promote “harmonious relations between the legislature and the executive” and to define the responsibilities of the elected government and the LG in accordance with the two NCT judgments118. Suffice to state that these amendments have been assailed before the Delhi High Court and are pending consideration. 148. We say that these amendments are significant as in a way they appear to be an offshoot of the continuous tussle between the State Assembly and the Central Government. The present proceedings where such difference of opinion is clearly reflected seem to also be a trigger, possibly in an attempt to control what the Assembly and the Committee intended. However, we are concerned with the situation prevalent at the relevant time and the arguments advanced in that behalf. We have not 118 Supra notes 27 and 82. been called upon to comment on the consequences of these amendments qua the subject matter of the present proceedings, more so when the challenge in respect of the same is pending before the Delhi High Court. 149. We must begin our opinion by noticing at the inception itself, the vast and influential role of an intermediary like Facebook. In this modern technological age, it would be too simplistic for the petitioners to contend that they are merely a platform for exchange of ideas without performing any significant role themselves – especially given their manner of functioning and business model. Debate in the free world has shown the concern expressed by Governments across the board and the necessity of greater accountability by these intermediaries which have become big business corporations with influence across borders and over millions of people. Facebook today has influence over 1/3 rd population of this planet! In India, Facebook claims to be the most popular social media with 270 million registered users. The width of such access cannot be without responsibility as these platforms have become power centres themselves, having the ability to influence vast sections of opinions. Without undermining the role performed by Facebook in giving a voice to various sections of society across the world, it has to be noted that their platform has also hosted disruptive voices replete with misinformation. These have had a direct impact on vast areas of subject matter which ultimately affect the governance of States. It is this role which has been persuading independent democracies to ensure that these mediums do not become tools of manipulative power structures. These platforms are by no means altruistic in character but rather employ business models that can be highly privacy intrusive and have the potential to polarize public debates. For them to say that they can sidestep this criticism is a fallacy as they are right in the centre of these 150. Facebook as a platform is in the nature of a mass circulation media which raises concerns of editorial responsibility over the content circulated through its medium. The width of the reach of published material cannot be understated or minimized. Facebook has acknowledged in their reply that they removed 22.5 million pieces of hate speech content in the second quarter of 2020 itself, which shows that they exercise a substantial degree of control over the content that is allowed to be disseminated on its platform. To that extent, a parallel may be drawn with editorial responsibility cast on other mass circulation media. 151. The business modelof intermediaries like the petitioner being one across countries, they cannot be permitted to take contradictory stands in different jurisdictions. Thus, for example in the United States of America, Facebook projected itself in the category of a publisher 119, giving them protection under the ambit of the First Amendment of its control over the material which are disseminated in their platform. This identity has allowed it to justify moderation and removal of content. Conspicuously in India, however, it has chosen to identify itself purely as a social media platform, despite its similar functions and services in the two countries. Thus, dependent on the nature of controversy, Facebook having almost identical reach to population of different countries seeks to modify its stand depending upon its suitability and convenience. 152. We are afraid we are not inclined to accept the simplistic approach sought to be canvassed by Mr. Salve on the role of Facebook. Forceful as it may be, it does not convince us. Developments around the world, as 119 Facebook’s Motion to Dismiss Pursuant to Federal Rule Of Civil Procedure 12(B)(6) and Incorporated Memorandum Of Law in Laura Loomer v. Facebook Inc. Case No.9: 19-cv-80893-RS, accessible at https://docs.reclaimthenet.org/Loomer- we have noted above, reflect rising concerns across borders. The concern is whether the liberal debate which these platforms profess to encourage has itself become a casualty. We have noticed in the beginning that algorithms, which are sequences of instructions, have human interventions to personalise content and influence opinions as part of the business model. As such, their primary objective is to subserve their business interests. It is first a business and then anything else. As per their own acknowledgement, they would only appear before any committee if it served their commercial and operational interests, as it did when they appeared before the parliamentary committee. But if their business interests are not served, they seek a right to stay away. Such a stand is completely unacceptable to us. Facebook has the power of not simply a hand but a fist, gloved as it may be. 153. We now turn to the incident at hand, that of an unfortunate violent eruption. The need to go into this incident both from a legal and social perspective cannot be belittled. The capital of the country can ill-afford any repetition of the occurrence and thus, the role of Facebook in this context must be looked into by the powers that be. It is in this background that the Assembly sought to constitute a peace and harmony committee – whether it has the legislative competence or not is an aspect we will deal with it under the relevant head. The Assembly being a local legislative and governance body, it cannot be said that their concerns were misconceived or illegitimate. It is not only their concern but their duty to ensure that “peace and harmony” prevails. However, we may note that the long and repeated battles between the State and the Centre appear to have cast a shadow even over the well-meaning intent of the Committee to assess peace and harmony as reflected in the Terms of 154. We may record that the Central Government and the State Government have been unable to see eye to eye on governance issues in Delhi. This has been responsible for a spate of litigation and despite repeated judicial counsel to work in tandem, this endeavour has not been successful. There is little doubt that the constitution of the governance model in Delhi is somewhat unique. This itself flows from Delhi being the capital of the country. Delhi has had a history of having an Assembly replaced by a model of Union Territory governance by Executive Councilors. There were long years of tussle to have a Legislative Assembly with commonality of objectives across the primary political space, but whoever was in governance found it difficult to let go. The model that came into being, thus, had somewhat of a hybrid character, giving an expanded role to the Central Government as compared to any other Legislative Assembly. To that extent, there was a diminishing of the federal structure but there appears to have been a consensus on this 155. The aforesaid arrangement worked well for many years even with different political dispensations in power in the Centre and the State. But the last few years have seen an unfortunate tussle on every aspect with the State Government seeking to exercise powers as any other Assembly and the Central Government unwilling to let them do so. The bone of contention has not only been the three subject matters of which the State was denuded of its powers, i.e., Entries 1, 2 & 18 from List II; but it is almost a daily governance tussle. 156. The political dispensation which is in power in the State has to recognise the constitutional scheme of division of powers in Delhi which circumscribes their ability to work only within those powers. When they got elected, they knew what they were getting elected for – not what they thought should be the division of powers. On the other hand, the Central Government is required to work in tandem, albeit with a different political dispensation. Maturity is required from both sides and we have to reluctantly note the absence of such maturity in this important inter- 157. To work well, the Central Government and the State Government have to walk hand in hand or at least walk side by side for better governance. The failure to do so is really a breach of their respective electoral mandate, the seven Lok Sabha seats are all held by the powers that be in the Central Government but a very different result came in the Assembly Elections. This has seen a repeat. It is a reflection of the maturity of the electorate which has chosen to put one dispensation in power in the Centre while seeking to choose another in the State as the roles are divergent. The concerns are different. The two powers unfortunately do not seek to recognise this aspect, and that is the bane of this structure requiring collaboration and concurrence. Unfortunately, it has become an endeavour to score points over the other. Some prior discussion and understanding could easily solve this problem instead of wasting large amounts of judicial time repeatedly arising from the failure of the two dispensations to have a broader outlook. In fact, the current round is, in our view, arising from the petitioners seeking to take advantage of this divergence of view and their inability to see a common 158. No governance model requiring such collaboration can work if either of the two sides take a ‘my way or the high way’ approach –which both seem to have adopted. We have expressed our view on the contours of the dispute and the facts have already been set out hereinabove. We see no purpose in repeating those facts. We now turn to the four propositions which form the basis of the writ petition (dealt with under three heads) to record our views qua them. 159. The privilege issue arises out of the plea advanced by the petitioners that both, the First Impugned Summons dated 10.09.2020 and the Second Impugned Summons dated 18.09.2020, were to summon Petitioner No.1 or a duly authorized representative of Petitioner No. 2 respectively with a threat of “privilege”. This argument was coupled with a plea that such power of privilege cannot extend to compel an individual, who is not a member of the House, into giving evidence/opinion that they are not inclined to state. 160. We may note the elaborate arguments addressed by Mr. Salve, based on a premise that privilege power is really a special right enjoyed as a shield in order to facilitate the working of the Assembly. It is not a sword for assertion of power. It was argued that the constitutional schemes of the UK and of India, a republic, are different and thus, the privilege powers in the latter must be strictly confined to legislative functions. Only if the integrity of the legislative functions is impaired, either by a member or by non-members, would the occasion arise for exercise of such power. 161. In fact, Mr. Salve sought to contend that it is time that exercise of privilege power is codified, and to that extent an intent was expressed by the Constitution makers in sub-clause (3) of Article 194. The relevant portion states that such privileges “shall be such as may from time to time be defined by the Legislature by law.”, and thus, the submission was that this clause operated for a period “until (privilege powers were) so defined.” Mr. Salve sought to persuade us to either lay down the guiding principles or at least nudge the Parliament/Legislature to do so. We have already noticed that this is an aspect seriously disputed by all the counsel for the respondents. 162. We may notice in the aforesaid context that the wordings of Article 194(3) are unambiguous and clear, and thus do not require us to give our own twist or interpretation to them. These are not wordings of a statute, but that of the primary document – the Constitution. The powers, privileges and immunities of a House of the State Legislature as well as its committees have been clearly defined as those of the House and all members and committees thereof before the coming into force of Section 26 of the Constitution 44th Amendment Act, 1978. There was no timeline provided for codification of powers, privileges and immunities of a House. The Constitution has given leeway to the Legislature to define the same from time to time, but there was no compulsion qua the same. If the Legislature in its wisdom is of the opinion that it needs to be so done, they will do so. Is it for this constitutional court to nudge them in that direction? Our answer would be in the negative. 163. We say so as this is itself a debatable issue. There is a divergence of views even amongst constitutional experts whether full play must be given to the powers, privileges, and immunities of legislative bodies, as originally defined in the Constitution, or is it to be restricted. Such opinion would have to be debated before the Parliament/Legislature of the State to come to a conclusion, one way or the other. It is not even a subject matter where it could be said that any one opinion must prevail, or a nudge must be given by this Court, or a recommendation must be made for consideration by the legislative body. That Scotland and Wales have considered it appropriate to have their own enactments in this context, is a deliberate legislative exercise by those bodies. There is no uniformity across the world in this regard. 164. The notion of individual constitutional rights and the right to privacy is sought to be expanded by the petitioners to encompass the right of refusal even to appear in pursuance of the summons. The debates across democratic policy including some of the developments recorded by us, would show that there is a turn towards recognising the importance of an element of compulsion (if so required) for deposition/opinions relating to the present subject matter. This is more so in the context of monolithic business models having vast financial and technical powers at their disposal. As a constitutional court, we are not inclined to step into 165. It is not disputed that committee proceedings cannot be equated to proceedings before the court of law.120 No doubt these powers have to work in the context of the business of each House, and no House can be a knight in shining armour to correct issues in respect of which it has no legislative power. Yet, it would be a monumental tragedy to conclude that the legislature is restricted to the function of enacting laws. The role of the legislature is sought to be diminished by such an argument. The legislature debates many aspects, and at times records a sense of the House. This is not unusual or without precedent. The judgment in Amarinder Singh121 is of little assistance to the petitioner as that was a case of an executive act of exemption of land, and in no way obstructed or threatened the integrity of the legislative proceedings. The facts of each case are important and propositions of law must apply in the context of the facts. 166. Once we recognize the wider array of functions performed by an elected Parliament or Assembly, not confined to only enacting laws, any 120 Lord Denning’s observations as noted in State of Karnataka v. Union of India on note 9. act in furtherance of this wider role and any obstruction to the same will certainly give rise to an issue of parliamentary privilege.122 167. There is little quibble with the proposition recognized in the Special Reference No.1/1964123 that there is a distinction between exercise of legislative privileges and ordinary legislative functions. A similar line of reasoning has been expressed in Justice (Retd.) Markandey Katju v. Lok Sabha and Anr., when the hackles of the Parliamentarians were raised on account of some utterances by Justice (Retd.) Markandey Katju.124 We, however, fail to appreciate the line of argument that no non-member could be summoned if they had not intruded on the functioning of the Assembly; or that the non-participation of the petitioner would not have adverse consequences as it did not disrupt the functioning of the Committee. The petitioners, more so with their expanded role as an intermediary, can hardly contend that they have some exceptional privilege to abstain from appearing before a committee duly constituted by the Assembly. 168. We really do not have any quibble with the propositions advanced by Mr. Salve that there can be judicial scrutiny of an endeavour to 122 Supra note 24. exercise the power of privilege, which inherently suffers from lack of jurisdiction, if illegal or unconstitutional.125 The issue, however, is whether the situation has at all arisen meriting scrutiny by this Court- which in turn has to be preceded by initiation of the privilege proceedings, an aspect emphasised by learned counsel for the Assembly as well as the Committee. 169. In the factual matrix, only a summons has been issued for appearance before the Committee. The question of any privilege power being exercised is yet far away. It has been rightly pointed out by the learned counsels for the respondents, that even if there was any breach of privilege recorded by the Committee, the Committee would in turn have to make a recommendation to the Assembly. The Assembly then would be entitled to consider whether it is a fit case to exercise the power of breach of privilege. In many cases, it may well be that the Assembly considers that it is not worthwhile to do so, even if the Committee was to prima facie opine so. The exercise by the Assembly is further dependent on the opinion of the Privileges Committee. Thus, there are various tiers of scrutiny before there is culmination of the exercise of power of 125 Supra notes 12, 15 and 20. privilege. None of those eventualities have at all arisen in the present case. This case is a preventive endeavour by the petitioner to preclude the respondents from even considering the aspect of privilege by seeking this Court’s intervention at a pre-threshold stage, only on the premise of the absence of legislative power. We will, of course, consider the aspect of absence of legislative power as the last aspect on the questions framed - but we cannot accept the fetters Mr. Salve seeks to place on the Assembly and the Committee at the threshold. We may notice the arguments of the respondents that recording of the consequences of breach of privilege in a notice to appear is apparently something which is done in a routine manner in such notices. This is possibly to make the noticee conscious of the consequences. That would not mean that an action for privilege has been triggered off at the outset. 170. We would like to turn to the aspect of the importance of the working of committees; as, if there is no power to compel attendance, we have little doubt that the working of these committees would be badly 171. The committees constituted by legislative bodies like the Assemblies for the States and Parliament for the Union, perform a key role in the functioning and the working of the Houses. In fact, it is often said that the real work is done in these committees - away from the din of the Parliament. These committees witness more vociferous reflection of the divergent view, slightly away from public gaze. It is said that there is a more reasonable and applied discussion in these committees. This is an aspect recognized all over the world qua the functioning of such committees. These committees are bodies which have the capability to undertake wide-scale consultative processes, engage in dialogue, and build consensus through intelligent deliberations. In fact, such an exercise is intrinsic to the legislative process where public policies would require detailed studies and concentration. These committees undertake deliberations and provide recommendations as precursors to legislative activities, and the effective working of committees is a prelude to the core working of the Assemblies. 172. The committees are an extension of the legislature itself and do informed work. Their significance has been exhaustively dealt with in Kalpana Mehta126 which we have extracted hereinabove. US Representative James Shannon’s words were noted with approval in the 126 Supra note 20. judgment, recognising that “around the world there is a trend to move toward reliance on committees to conduct the work of parliament, and the greatest reason for this trend is a concern for efficiency.”127 It is not possible for us to accept the contention of the petitioners to create an artificial division between Assembly’s core/essential and non-essential functions, with any restrictive clauses being placed on the deliberations of the committees. Such water-tight compartmentalisation is not advisable. Unless the committee embarks on a course completely devoid of its functional mandate specified by the Assembly, or the Assembly itself lacks jurisdiction to deal with the subject matter, we are of the view that the widest amplitude must be given to the functioning of these committees. It is the parliamentary committee system that has been recognised as a creative way of parliaments to perform their basic functions. The same principle would apply, even if it is to some extent beyond their legislative domain. This is because they will not be able to make any valid legislative recommendations in the absence of competence over the subject matter. However, they may debate aspects 127 Comment of US Representative James Shannon during the 1995 Conference on the Role of Committees in Malawi’s Legislature as noted in Kalpana Mehta at which may be a reflection of their sense and consequently the sense of the House, if so adopted by the House. 173. Walter Bagehot in his seminal work “The English Constitution” 128 elucidated five significant functions of the House - elective, expressive, teaching, informing and finally, the legislative. The legislative function itself is a broad umbrella under which multiple responsibilities and tasks are carried out in synchronization. The legislature is a “democratic nucleus”, whereby such title entails the law-making process itself as being multi-functional; involving receipt of informed opinions and balancing interests of various stakeholders.129 Committees actually are in the nature of specialised forums as Mallory states: “The flow of public business is now so great, and its nature so complicated, that it can only be handled by bodies with the technical competence and the rational organization to master it. As Dr. Bernard The novels of C. P. Snow, Professor Parkinson’s Law and K. C. Wheare’s Government by Committee are all, in different ways, testimonies to the truth that the most important work of central government is conducted not by civil servants or M.P.’s working as individuals, but by committees (Bernard Crick, Reform of the Commons. Fabian Tract No.319 (London, 1959), p.13).” 129 J.R. Mallory, The Uses of Legislative Committees, 6 Canadian Public 174. The inquisitorial role of the committee in the functioning of House is of great significance, and as recognized, the investigation of a complicated social problem prior to legislation often rests frequently on such legislative committees.130 This task involves the examination of witnesses and is helpful in dealing with matters of special and technical nature, wisened by insight into affairs of the workings of different aspects and the views expressed by different stakeholders. It can hardly be said that in the context of what has been debated, the petitioners have no role to play or are “outsiders”. Intelligent legislative action and deliberation thereon rests on the power to investigate into questions of public importance and, thus, issuance of summons is key to this investigative exercise - a role clearly recognised in Kalpana Mehta131. 175. We have no hesitation in stating that the endeavour of the petitioners to sidestep their appearance before the Committee on a perceived notion of not being an official representative - is not acceptable to us – whether the exercise is for a legislative enactment, or for other 130 Promila Suri, Growth of Committee System in Central Legislature of India 131 Supra note 20. purposes connected with its legislative domain. After all, “To be a valid legislative inquiry there need be no predictable end result.”132 176. The Committee is yet to start its work qua the assistance to be rendered by the petitioners. The petitioners cannot themselves frame and presume possible questions that they might face before the Committee, and then seek to encompass it under the argument of legislative incompetence. The work of The Committee could encompass several fields where organisations and individuals are expected to cooperate. 177. We are also not impressed by the argument that the privilege powers of the Assembly are not constitutional in character but flow only from the GNCTD Act. The scheme of privilege has to be seen in the context of provisions of Article 239AA of the Constitution, as well as the GNCTD Act. They are not divorced from each other. Dr. Singhvi, thus, rightly referred to clauses 7(a) and 7(b) of Article 239AA to contend that the GNCTD Act was not deemed to be an amendment to the Constitution for the purposes of Article 368, notwithstanding that it may contain any provision which amends or has the effect of amending the Constitution. Rights and privileges are the same as any other House and, thus, the 132 Supra note 79. calling into question of the proceedings of a sub-committee amounts to calling into question the proceedings of the Assembly. At the cost of repetition, we say that there has been no exercise of privilege power. However, we have been called upon to deliberate, if one may say, to some extent unnecessarily over this issue on account of insistence of the petitioners to advance this argument prematurely. We do not know whether on participation of the petitioners any question of privilege would arise, whether the Committee would make a reference to the Assembly, whether the Assembly would consider it to be referred to the Privileges Committee, what would be the opinion of the Privileges Committee and finally whether the Assembly itself would embark on a path of a breach of privilege by the petitioners. This is a completely speculative exercise. 178. The Assembly is no different from any other State assembly, except to the extent that certain powers in List II of the Seventh Schedule have not been conferred (i.e., Entries 1, 2 & 18). As a principle of law, we are required to read all entries widely. Neither the included Entries nor the excluded Entries have to be read restrictively. That is the principle we will have to keep in mind. 179. Dr. Singhvi rightly pointed out that there is no judicial precedent shown before us where judicial review has been successfully exercised at such a threshold stage. Thus, judicial precedents would have to be read in their factual matrix. The stage for any possible judicial intervention has not arisen in the present case. In fact, such a threshold intervention was sought and repelled by the Full Bench of the Madras High Court in C. 180. We have little doubt that a “Peace and Harmony” Committee may have a much wider amplitude than what is excluded in Entries 1, 2 & 18 of List II. As to the issue of the extent of legislative power, we will deal with it in the third part of our conclusion. 181. We have already noted with some disquiet the divergence of views taken by Dr. Dhavan and Dr. Singhvi on the issue of the earlier notice being withdrawn, and a subsequent notice being sent. Dr. Dhavan expressed that this was really of not much significance. We are of the view that the Committee is a creation of the Assembly. The notice was withdrawn by the respondents themselves. In the wisdom of the Committee, they sent a fresh notice- that the same was possibly not under 133 Supra note 30. the advice of Dr. Dhavan or may have been on the advice of Dr. Singhvi is of little relevance to us. Such conflict of submissions was best avoided and unnecessarily gave rise to another set of arguments on behalf of the petitioners to read some intent into the same. Dr. Dhavan was, however, right in seeking to repel the challenge as based on anticipatory nature of proceedings – being presumptive and preemptive. 182. The aspect of Dr. Dhavan’s submission that the Committee’s threat to recommend criminal action was “toothless” and the Committee Chairman’s statements during the press conference in this regard are both best dealt with under the third aspect. Suffice to say at this stage that, in our view, greater care would be required while framing the Terms of Reference so as to not include something which would be termed by the counsel as “otiose” before this constitutional court. The utterances of the Chairman of the Committee, which would give rise to petitioner’s apprehensions are best avoided. We are noticing these aspects because these two factors can be the only reasons for the petitioners to have approached this Court at this stage. In our view, there would have been nothing to argue but for these two aspects – the first effectively withdrawn during the course of argument, and the second sought to be explained away as views of the people who deposed before the Committee. We find it very difficult to accept both these aspects, and we can safely say that these gave the petitioners an ostensible cause for approaching this Court. This is an issue we cannot ignore - but for these aspects, we would have possibly burdened the petitioners with exemplary costs to have approached the court at this stage. A number of past illustrations have been rightly given by Dr. Dhavan to illustrate notices issued to non-members which we have already recorded in para 58 and there is no need to repeat them. 183. We may record, at the end, that there is actually no serious dispute about the per se competence of the Committee to discuss matters outside the legislative domain of the Assembly but it was with a caveat that it could not give rise to exercise of power of breach of privilege and the right to summon a non-member. That being the position, we have already noticed that any plea raised on the exercise of privilege is a pre- emptive strike in the absence of underlying facts. Where that situation arises in the given factual context, the petitioners could have and would be entitled to assail the same, but this Court will not indulge in an advance ruling on this aspect. We have already clarified that we are not inclined to accept the distinction between a member and non-member in the aforesaid context; and the power of the Assembly to summon in the format it sought to do is beyond exception and in accordance with law. So much for the aspect of privilege. 184. Mr. Salve sought to pit the expanded right of free speech and privacy against privilege, emphasising that the petitioner had a right to remain silent. In the context of the plea of the petition being premature (which we have found against the petitioners as aforesaid), his submission was that the mere threat of “necessary action” i.e., the possibility of a breach of privilege, was enough to infringe both the right to free speech and privacy. Thus, “the threatened invasion of the right” could be “removed by restraining the potential violator”.134 185. The more restricted plea advanced by Mr. Salve was that even if the right of privilege is recognised, it must be narrowly construed so as to give maximum play to the fundamental rights to privacy and free speech, which includes the right to remain silent. We may note that in view of the original notice being withdrawn, Facebook’s plea of not having the 134 Supra note 38. option of choosing whom to send stands whittled away. The interesting part is that Petitioner No.1 did appear before the Parliament. 186. We find it rather difficult to countenance the plea that the judgment of this Court in MSM Sharma135 stands whittled down by subsequent judicial pronouncements or that powers, privileges and immunities under Articles 105(3) and 194(3) of the Constitution must give way to the more fundamental right of free speech under Article 19(1)(a) of the Constitution in view of the reference pending before the larger Bench in 187. We have discussed at some length the aspect of privilege and the rights which flow from it. Though such proceedings are not taking place in Court, where depositions also take place, privileges of an elected body of the Legislative Assembly and consequently of its committees must be given full play. 188. We would also not like to delve on this issue in more depth as we are conscious of the fact that the perceived conflict between MSM 135 Supra note 14. Sharma137 and Special Reference No.1 of 1964138 is pending consideration before a larger Bench in N. Ravi139. Suffice for us to add that this reference has been pending since 2005. It may be stated that this reference needs to be given some priority to settle the legal principles involved, especially in the context of the expanding conflict on such subject matters. 189. Be that as it may, we also agree with what Dr. Singhvi contended -that this is another aspect which is premature. No coercive action has been taken against the petitioner, and none was intended if the authorised representative of the petitioners simply participated in the proceedings as a witness. Emphasis was also laid on the transparency of these proceedings in view of them being broadcasted live. The summons having been lawfully issued by an empowered committee (subject, of course to the legislative competence discussed hereinafter), the same must be answered. The proceedings are not criminal or judicial in nature as there is no accused before the Committee. Naturally, the Rules framed by the House under Section 33 of the GNCTD Act (which in turn draws 137 Supra note 14. strength from Article 239AA(7) of the Constitution) would be followed. Protection of proceedings before the Assembly or the Committee under Article 194 would include deposition of members or non-members. 190. We may add here that the option to not answer a question before the Committee cannot seriously be disputed qua certain aspects if so pleaded for good reasons, an aspect which would be examined by the Committee as per Rules. 191. We would not like to say anything more on this subject in view of the reference pending in N. Ravi,140 and the fact that the complete plea of the petitioners is premature as nothing has really happened other than them having been asked to appear before the Committee. 192. Is the Assembly embarking on a path which is blocked for them? This is the core question of legislative competence of the Assembly in the context of its powers and privileges not being akin to other State Assemblies. The endeavour of Mr. Salve was to persuade us that once the Assembly lacks competence, the petitioners have a right to stay away, as 140 Supra note 46. all proceedings before the Committee would be devoid of any constitutional mandate. 193. It is undisputed that the Assembly is different from the other State Assemblies to the extent that certain subject matters of List II have been specifically excluded and conferred on the Central Government. It is, thus, nobody’s case that aspects covered by Entries 1, 2 & 18 in List II can be dealt with by the Assembly and consequently, the Committee. In fact, the submission of Mr. Salve can be summarised as advancing a plea that the Assembly and the Committee cannot be permitted to do indirectly what they cannot do directly. 194. While there is no dispute about the principle of reading the Entries as widely as possible, that proposition is in the context of challenging a law for lack of legislative competence. Here we are concerned with the interplay of Entries. The issue would be whether the Central Government has the legislative competence or the Assembly. The widest amplitude has to be given even to the three Entries of which the legislative competence has been denuded from the Assembly and conferred on the Parliament. 195. It is in the aforesaid context that it was emphasised that apart from the aforesaid three Entries, what is also to be appreciated is that the business of Facebook is directly covered under a Parliamentary enactment, i.e., the I.T. Act. In this respect, petitioners have willingly cooperated with proceedings before the Parliamentary Committee in the 196. That Facebook is an intermediary was submitted to be apparent from Section 2(1)(w) of the I.T. Act. The role of the intermediaries is covered by this enactment including the right of the Central Government to issue directions to block public access to any information under Section 69A of the I.T. Act and this is no more res integra in view of the judgment in Shreya Singhal141 where a procedure for the same has been laid down. 197. The intent of the Committee (and for that matter the Assembly) was argued by Mr. Salve to be quite clear, i.e., to encroach on the very domain which was prohibited. This was stated to be apparent from the Terms of Reference. The Terms of Reference contained in paragraph 4 (i) (to consider the complaints from the members of the public, social 141 Supra note 66. organisations, journalists, etc. on the situation prevailing in a particular area/areas which have the potential to disturb communal peace and harmony or where communal riots have occurred) have to be read in context of para 4(vii) which tasks the Committee with recommending action against such persons against whom incriminating evidence is found. The respondents could not get away by simply saying that the power of recommending action against such persons against whom incriminating evidence is found is not capable of being enforced in view of the lack of legislative competence. These are the aspects which were sought to be given teeth by threatening privilege in the last paragraph of the Terms of Reference. 198. Mr. Salve also sought to rely on the reply of the respondents to justify that these were not mere apprehensions. We have set out these aspects as reflected in para 90. 199. It could not be seriously disputed before us that collaborative federalism was an integral part of the working of the Indian Constitution as emphasised by the Court. However, it was simultaneously accepted that such functioning had to be within respective spheres of legislative competence. Were the Assembly to encroach upon matters covered by List I (and similarly, if the Central Government were to encroach upon the powers of the Assembly in List II), it would lead to a chaotic situation and a breakdown of the division of powers inter se the Centre and the 200. We are, however, not impressed with the argument of Mr. Salve that the petitioners cannot be drawn into what is perceived to be a political divide. Facebook is a platform where such political differences are reflected. They cannot wash their hands off the issue as this is their very business. As noticed earlier, their role is not as innocuous as they are seeking to contend. 201. Similarly, we cannot accept the plea that an Assembly must confine itself to the core function of legislation. This would be unreasonably restricting the role of an elected body. 202. Mr. Salve’s emphasis was that all that transpired was a subterfuge as the real intent of the Committee was to look into issues that were beyond their scope, while expanding their powers on account of a political conflict between the Central and State Governments over the issue of the riots in question. This was stated to be quite apparent from the nature of depositions recorded before the Committee and the statements made in the press conference by the Chairman of the 203. As already stated, we have little doubt over the proposition that the division of powers between the Centre and the State Assemblies must be mutually respected. The concept of a wide reading of Entries cannot be allowed to encroach upon a subject matter where there is a specific entry conferring power on the other body. It is this very principle which was in the minds of the Constitution makers, considering the wide diversity and the federal nature of the country. Thus, whether it is the argument of Mr. Salve or Mr. Datar in this context, we find them unexceptionable. The illustrations given by Mr. Datar for exercise of such powers and their judicial scrutiny in the US also support the proposition, i.e., that an inquiry could not be an end in itself and has to be related to a legitimate task of the Congress (legislative body). 142 There could not be exercise of power which may “defeat or materially impair” the exercise of its fellow 142 Supra note 76. branches’ constitutional functions, nor “intrude upon a core zone” of 204. We are also of the view that the recourse to Entries 1 & 2 of List III cannot be said to include what has been excluded from the powers of List II, i.e., Entries 1, 2 & 18. Similarly, Entry 45 of List III relating to inquiries would again not permit the Assembly or the Committee to inquire into the aspects of public order or police functions. That a law and order situation arose is not disputed by anyone, and that this law and order issue related to communal riots also cannot be seriously disputed. That the Assembly cannot deal with the issue of law and order and police is also quite clear. Thus, the moot points would be (a) what is the scope of inquiry of the Committee; (b) whether it could be said that there is any aspect of the inquiry which falls within the legislative domain of the Assembly; and (c) whether the attendance of the petitioners could be compelled legitimately. 205. We may say that both Dr. Singhvi and Dr. Dhavan were quite conscious of the limitations which inherently exist on the powers of the Assembly. It is in that context that their argument was premised on a 143 Supra note 81. broader understanding of the expression “peace and harmony”, as opposed to it being restricted to law and order. However, the difficulty that they face relates to the part of the Terms of Reference that was clearly outside the purview of the powers vested with the Assembly. This problem was compounded by what transpired in the press conference held by the Chairman of the Committee. Speaking on behalf of the members of the Committee, the Chairman made certain statements that assume greater significance by virtue of being in the public domain. 206. We also do not disagree with the in-principle submission of Dr. Dhavan, drawing strength from judicial precedents in the US, that the power to investigate is inherent in the power to make laws by the legislative body.144 But while recognising this, the issue in the present case is whether the Assembly can at all legislate on the matter. The investigative function of committees carries with it the possibility of researchers ending up in some “blind alleys”.145 This would have to presuppose that there is an alley. Thus, while we respect the right of the Committee to the extent that there exists an obligation on the petitioners to respond to the summons, we cannot permit the proceedings to go on in 144 Supra notes 76, 78, 79. 145 Supra note 79. a manner that encroaches upon the prohibited entries. We hasten to add that we are not seeking to control how the Committee proceeds. In fact, the Committee is yet to proceed. But certain provisions of the Terms of Reference coupled with the press conference is what has persuaded us to say something more than simply leaving it to the wisdom of the Committee to proceed in the manner they deem fit. 207. Once again, we do appreciate the contention of Dr. Dhavan that the police cannot be the sole custodian of peace and harmony and that the expression itself has various connotations. Despite the State Government being denuded of certain powers, it has to be noted that governance has many manifestations, and functions of the Government can be realised in different ways. This is especially true in the present case where the situation was admittedly created through an intrinsically law and order issue. 208. The moot point is whether the expression “peace and harmony” can be read in as expanded a manner as Dr. Dhavan seeks to do by relying a on a number of Entries in List II and List III. We have no doubt that peace and harmony, whether in the National Capital or in a State context, is of great importance. But it would be too much to permit the argument that peace and harmony would impact practically everything and thus, gives power under different entries across the three lists. We, do, however, recognise that the inquisitorial and recommendatory powers can be utilised under the principle of better governance. 209. In the aforesaid conspectus, while keeping in mind Article 212 which restrains courts from inquiring into the proceedings of a legislature, we must also note that a narrow scope of judicial review has always been appreciated and understood. We are confronted with a situation where the two legislative bodies are not on the same page as to what transpired and there is in a sense, a tug of war on the issue as to who would look into what happened and what ought not to have happened. It is in this context that the learned Solicitor General emphasised the doctrine of pith and substance to locate the power within the entries which have been taken out of List II and thus, seeks to block the inquiry by the Committee on aspects which are already covered under the three excluded entries or under the I.T. Act. 210. The divergent contentions lead us to conclude that the Committee can trace its legitimacy to several Entries in List II and List III without encroaching upon the excluded fields of public order or police toundertake a concerted effort albeit not to the extent as canvassed by Dr. Dhavan. Facebook cannot excuse themselves from appearing pursuant to the New Summons issued to them on 03.02.2021. Areas which are not otherwise available to the legislature for its legislative exercise may, however, be legitimately available to a committee for its deliberations. This is so in the context of a broad area of governmental functions. Ultimately, it is the State Government and the State Assembly which has to deal with the ground reality even in the dual power structure in Delhi. If we may say so, it is only the factum of Delhi being the capital and the sensitivities arising therefrom in respect of public order or police which has possibly persuaded these powers to be retained by the Central Government. We cannot say that informed deliberation inter alia on the best measures through which online mass hate and violence in their geographical jurisdiction can be addressed would not be within the Committee’s area of competence as it would undermine the very purpose of a vital democratic polity. 211. The unfortunate communal riots between 24th and 29th February, 2020 in various parts of Delhi, led to the death of 53 persons, caused significant damage to public and private property, disruptions to schools, transport, water supply, medical and other civic amenities.146 The complexity of communal tensions and their wide-ranging ramifications is a matter affecting citizens of Delhi and it cannot be said that the Government of NCT of Delhi cannot look into the causal factors in order to formulate appropriate remedial measures. Appropriate recommendations made by the State Government in this regard could be of significance in the collaborative effort between the Centre and the State to deal with governance issues. It is in that context that this Court had recognised that certain local interests are best addressed by the elected representatives of the concerned State: “130. Sawer’s “federal principles” reiterate this concept of “Power of the centre is limited, in theory at least, to those matters which concern the nation as a whole. The regions are intended to be as free as possible to pursue their own local 146 Delhi Minorities Commission, Government of NCT of Delhi, Report of the DMC Fact-Finding Committee on North-East Delhi Riots of February, 2020, :accessible at: https://archive.org/details/dmc-delhi-riot-fact-report-2020. 212. We are of the view that because of the pervasive impact of the riots, the Committee could legitimately attend to such grievances encompassing varied elements of public life. Thus, it would be entitled to receive information and deliberate on the same to examine their bearing on peace and harmony without transgressing into any fields reserved for the Union Government in the Seventh Schedule. 213. Let us now turn to the Terms of Reference. In the larger context of what the Committee is supposed to do, reliance was placed on paragraph 4(i), i.e., to consider the factors and situations which have the potential to disturb communal harmony in the National Capital Territory of Delhi and suggest measures to eliminate such factors and deal with such situations with the object of establishing harmony among different religious or linguistic communities or social groups. This is not purely a law and order or policing aspect and has several connotations. It was not necessary at that stage for the Terms of Reference to spell out as to what aspects it would legislate upon (having legislative competence) and on what aspects it would like to consider making recommendations. That would have been a pre-hearing of the issue. 214. If we turn to para 4(i) of the Terms of Reference, the object was to consider petitions, complaints or reports from the members of the public, social organisationsand journalists on the matter in issue where communal riots have occurred. Once again this was intrinsically linked to the larger issue. However, the real troublesome aspect is para 4(vii), which we reproduce, once again, to appreciate the context: “(vii) to recommend action against such persons against whom incriminating evidence is found or prima facie case is made out for incitement to violence” 215. Clearly it is not within the remit of the Assembly to recommend action against such persons against whom incriminating evidence is found or prima facie case is made out for incitement of violence. This is an aspect purely governed by policing. It is the function of the police to locate the wrong doer by investigation and charge them before a competent court and this is what has really given a handle to the petitioners to approach this Court. 216. We have noticed the submissions of Dr. Singhvi and Dr. Dhavan, which really amount to saying that this paragraph is insignificant as no action can be taken. If that be so, then in that sense, this paragraph does not stand even though the petitioners may not have directly assailed it. In order to justify the legislative competence and the remit of the Committee, the respondents have practically given up this para 4(vii) and we record the same and make it clear that this cannot be part of the remit of the Committee. 217. We may say that wiser advice prevailed in issuing the New Summons dated 03.02.2021, which consciously specified the diluted area of inquiry, conscious of the aforesaid limitation and if we may say, rightly so. What it takes care of is that it is not addressed to Petitioner No.1 directly but instead it calls for the views of an authorised representative of Petitioner No. 2, Facebook India. It has rightly used the expression “requested” and also used the expression “could” in the context of initiation of proceedings for breach of privilege and has categorically withdrawn the previous notices and summons. On the lighter side, possibly Dr. Singhvi’s advice was adhered to. 218. The result of the aforesaid is that fallacies in the notices stand 219. We have already noticed that the statements made by the Chairman of the Committee during the press conference cannot be diluted or brushed aside in a manner as learned counsel for the respondents seek to do. No doubt some part of the press conference refers to the complaints received and statements made by persons deposing before the Committee. But, at the same time, it was stated by the Chairman that the material placed before the Committee had resulted in a “preliminary conclusion”. Thereafter it was stated that “prima facie it seems that Facebook has colluded with vested interests during Delhi riots”. It does “Facebook should be treated as a co-accused and investigated as a co-accused in Delhi riots investigation.” and “As the issue of Delhi riots is still going in the court, a supplementary chargesheet should be filled (sic) considering Facebook as a co-accused.” The aforesaid statements and conclusions are completely outside the remit of the Committee and should not have been made. That it may give rise to apprehension in the minds of the petitioners can also not be 220. The further utterances also show that the findings have already given out of the proceedings including 3-4 significant important aspects including posting by Facebook of incriminating material on the platform in spite of continuous request to remove the same and that Facebook colluded with such web news channels, which has a sole agenda to confuse content and disturb social harmony. The Chairman also states that material has come before them which shows that wherever there is content of harmonious nature, Facebook removes that content while disharmonious content is promoted. A reference has also been made to the race clashes in the US. 221. Towards the end it is also sought to be conveyed that in view of the “incriminating material”, the representatives of Facebook would be called upon to satisfy principles of natural justice before conviction. The prima facie view expressed is that Facebook is a co-accused and hence investigations regarding their role during the Delhi riots should be carried out and after such investigation, a supplementary chargesheet should be 222. If it may be said, it is as if the Committee was convinced that Facebook must be prosecuted, and as if the Committee itself was the prosecutor with a right to direct the filing of a supplementary chargesheet. It was meeting as a formality to give a right of hearing before doing so, i.e. “before taking any action.” What more is to be said! 223. We can only say that such statements are hardly conducive to fair proceedings before the Committee and should have been desisted from. This is especially so as that was not even the legislative mandate, and the Assembly or the Committee had no power to do any of these things. 224. In view of the aforesaid, thus, while giving the widest amplitude in respect of inquiry by a legislative committee, we are constrained to put certain fetters in the given factual scenario otherwise tomorrow the proceedings itself can be claimed to be vitiated. 225. The importance of Committees cannot be over emphasised. The Kalpana Mehta148 case discusses this issue in some depth. Committees seek to perform the function of holding the Government accountable to implement its policies, and its duties under legislation and the performance of governmental agencies can be the subject matter of 148 Supra note 20. reports formulated by these Committees. However, in the context of the present case, we are dealing with a scenario where on a particular subject matter there is no legislative mandate to enact a legislation even if, in a broader sense, an inquiry is made. Thus, the aspect of holding the State Government accountable is not really envisaged as per the Terms of Reference. Rather, it seems as if the Committee seeks to hold certain private players responsible for a law and order scenario, which is within the domain of the Central Government. Therefore, the general principles applicable to Committees would apply with a little difference in the given 226. We are conscious of the rationale emphasised that the wide jurisdictions of the High Court under Article 226 or of this Court under Article 32 of the Constitution should not normally be exercised in a manner oblivious to the enormous work carried out by the Parliamentary Committees “in the field”. An Assembly, more so in the nature of Delhi Assembly with its own peculiarities (i.e., the exclusion of certain powers), even if given the widest amplitude and powers which a Committee should have; cannot step on the toes or rather shoes of an entity having exclusive jurisdiction by reason of List I. 227. We cannot lose sight of the repeated brushes which have occurred between the current dispensation in the Central Government and the State Government and the Courts being called upon to define the contours of their powers. Sagacious advice to act in concert appears to have fallen on deaf ears. We are, faced with a scenario which is a little different from the normal and, thus, much as we would not like to, some fetters have to be placed qua the exercise sought to be undertaken by the Committee in question. One set of fetters is not required because it has already been conceded that para 4(vii) of the Terms of Reference is otiose and that there will be no endeavour to prosecute. However, another set of fetters become necessary because of the history recorded aforesaid and the significance of the press conference given by the Chairman of the Committee. The subject matter went much further than it ought to have and as a result, we have analysed the press conference in detail to repel the contention on behalf of the respondents that this aspect should not be taken seriously or is more preemptory in nature. We are clearly of the view that it is not so. The Committee cannot have a misconception that it is some kind of a prosecuting agency which can embark on the path of holding people guilty and direct the filing of supplementary chargesheet against them. We, thus, opine that this aspect has to be kept in mind by the Committee so as to not vitiate future proceedings and give rise to another challenge. We are of the view that in any eventuality, as speculative as it may be, if the Committee seeks to traverse the path relating to the excluded Entries, i.e. law and order and police, any representative of Facebook who would appear before the Committee would be well within their right to refuse to answer the query and such an approach cannot be taken amiss with possibility of inviting privilege proceedings. It is a delicate balance to follow and we do not seek to give an excuse to the representative of the petitioners to not answer questions and frustrate the proceedings before the Committee qua the petitioners. However, at the same time, we give this very limited protection were the Committee to embark on these prohibited areas. We are quite confident that such an eventuality will not arise, given the important role that the Committee is performing and that it will accept the sagacious advice. So much and not further. 228. We have penned down our views on the issues raised by the petitioners, but in view of the elaborate arguments and length of the judgment, we consider it appropriate to summarise the ratio/directions in I. There is no dispute about the right of the Assembly or the Committee to proceed on grounds of breach of privilege per se. II. The power to compel attendance by initiating privilege proceedings is an essential power. III. Members and non-Members (like the petitioners) can equally be directed to appear before the Committee and depose on oath. IV. In the given facts of the case, the issue of privileges is premature. Having said that, the insertion of para 4(vii) of the Terms of Reference taken along with the press conference of the Chairman of the Committee could legitimately give rise to apprehensions in the mind of the petitioners on account of which a caveat has been made. V. Canvassing a clash between privilege powers and certain fundamental rights is also preemptory in the present case. VI. In any case, the larger issue of privileges vis-a-vis the right of free speech, silence, and privacy in the context of Part III of the Constitution is still at large in view of the reference to the larger 149 Supra note 46. VII. The Assembly admittedly does not have any power to legislate on aspects of law and order and police in view of Entries 1 and 2 of List II in the Seventh Schedule inter alia being excluded. Further, regulation of intermediaries is also subject matter covered by the I.T. VIII. The Assembly does not only perform the function of legislating; there are many other aspects of governance which can form part of the essential functions of the Legislative Assembly and consequently the Committee. In the larger context, the concept of peace and harmony goes much beyond law and order and police, more so in view of on- the-ground governance being in the hands of the Delhi Government. IX. Para 4(vii) of the Terms of Reference does not survive for any opinion of the Committee. It will not be permissible for the Committee to encroach upon any aspects strictly within the domain of Entries 1 and 2 of List II of the Seventh Schedule. As such, any representative of the petitioners would have the right to not answer questions directly covered by these two fields. 229. That brings us to the end of this saga. The writ petition is accordingly dismissed, subject to terms aforesaid. 1. COVID times have been difficult for everyone. The Judiciary and the Bar are no exception. It has been a contributing factor in there being a period of four months between reserving the judgment and pronouncement of the order, but that is not the only reason. 2. We have noticed the presumptive nature of grievances and the invitation to the court to opine on the same with undoubtedly a handle being provided by the respondents. The saga of the hearing lasted 26 hours – which is a lot of judicial time. Daily time period was recorded. Apart from pleadings, there were written synopses, additional written synopses, rejoinders and replies filed liberally by both parties. The convenience compilations themselves were very voluminous, in contradiction to their very purpose. Our concern is if this is how the proceedings will go on in the future, it will be very difficult to deal with the post COVID period, which is likely to see a surge in the number of cases pending adjudication. 3. What is the way forward? We do believe that there needs to be clarity in the thought process on what is to be addressed before the Court. Counsels must be clear on the contours of their submissions from the very inception of the arguments. This should be submitted as a brief synopsis by both sides and then strictly adhered to. Much as the legal fraternity would not want, restriction of time period for oral submissions is an aspect which must be brought into force. We really doubt whether any judicial forum anywhere in the world would allow such time periods to be taken for oral submissions and these be further supplemented by written synopsis thereafter. Instead of restricting oral arguments it has become a competing arena of who gets to argue for the longest time. 4. We have looked into this aspect to see if there are any international best practices and would like to refer to some of them without a very expansive discussion. 5. Article 6 of the European Convention on Human Rights, while recognising the right of fair trial and public hearing, qualifies it inter alia to be completed “within a reasonable time”. 150 This is intrinsically linked to administering justice without delays. Delay in judicial proceedings has been the bane of our country and there cannot be a refusal to part ways from old practices especially when they have outlived their purpose. It is the litigants who bear the costs of our complex and prolonged adjudicatory process. We are conscious of the equal responsibility of this side of the bench – it is the need of the hour to write clear and short judgments which the litigant can understand. The Wren & Martin principles of precis writing must be adopted. But then how is this to be achieved if the submissions itself go on for hours on end with vast amounts of material being placed before the Court; with the expectation that each aspect would be dealt with in detail failing which review applications will be filed (not that they are not 150 Article 6, European Convention on Human Rights, 1953. filed otherwise!) We are weighed down by judicial precedent. Often a reference is made to the judgment of the Privy Council or the earlier years of the Supreme Court, which saw short and crisp judgments but then, the volume of precedents we face today was not present then. In a technological age like ours, all that is required is to instruct the junior counsel to take out all judgments on a particular point of view and submit it to the court in a nice spiral binding. On every aspect there may be multiple judgments. In our view if the proposition of law is not doubted by the Court, it does not need a precedent unless asked for. If a question is raised about a legal proposition, the judgment must be relatable to that proposition – and not multiple judgments. The other scenario is if the facts of the cited judgments are so apposite to the facts of the case that it could act as a guiding principle. In R. v. Erskine; R. v. Williams 151 a well-known aphorism of Viscount Falkland in 1641 was noticed “if it is not necessary to refer to a previous decision of the court, it is necessary not to refer to it. Similarly, if it is not necessary to include a previous decision in the bundle of authorities, it is necessary to exclude it. That approach will be rigidly enforced.” This forms the basis of the criminal practice directions in the UK which apply to all criminal matters before the Court of Appeals, Crown Court, and the Magistrate’s Court. Criminal practice directions (vii) clarifies that if a judgment does not refer to a cited case, it is not that the court has not referred to it but rather, that the court was not assisted by it. We adopt the same as we can say no better. 6. The contribution to the development of law can be nurtured by comprehensible precedent. There may be times when the complexity of matters gives rise to complex opinions. But we find that judgments are becoming more complex and verbose only on account of large number of precedents cited and the necessity to deal with them and not merely refer to them as is done in other countries. 7. We have for long discussed case management but seldom is it followed in its true letter and spirit. This may possibly be because of the large volumes of cases but then this is all the more reason for better 8. The US Supreme Court is more restrictive in its time frame – not that UK Courts are far behind. The norms and the traditions take care of the requirement of restrictive time frames to address submissions; which are preceded by the contours of arguments given in the written synopsis and the material sought to be relied upon. We do not doubt that lawyers think on their feet but then given the current milieu, there has to be clarity before the lawyers get on their feet keeping a little leeway in mind for something which may evolve during the arguments. 9. The Supreme Court of India as on 01.05.2021 had 67,898 pending matters.152 The time spent on routine matters leaves little time to settle legal principles pending before larger Benches that may have an impact down the line on the judicial system. We have a straight example of this with a reference to a larger Bench pending in N. Ravi153. 10. Another matter of concern is prolonged interim proceedings. In criminal matters, even bail matters are being argued for hours together and at multiple levels. The position is no different in civil proceedings where considerable time is spent at interim stage when the objective should be only to safeguard the rights of the parties by a short order, and spend the time on the substantive proceedings instead which could bring an end to the lis rather than on the interim arrangement. In fact, interim orders in civil proceedings are of no precedential value. This is the reason it is said that we have become courts of interim proceedings where final proceedings conclude after ages- only for another round to start in civil proceedings of 152Statistics, Monthly Pending Cases, Types of matters pending in Supreme Court of India as on 01.05.2021 , Supreme Court India, accessible at: 153 Supra note 46. 11. The purpose of our post script is only to start a discussion among the legal fraternity by bringing to notice the importance of succinctly framed written synopsis in advance, and the same being adhered to in course of oral arguments to be addressed over a limited time period and more crisp, clear and precise judgments so that the common man can understand what is the law being laid down. After all, it is for ‘the common man’ that the judicial system exists.
The Supreme Court said that social media manipulation puts elections and voting at risk. This was part of their decision on Thursday in a case called Facebook vs. Delhi Assembly. Companies like Facebook must be responsible to the people who give them so much power. Facebook has been very important for free speech, helping people share their views and avoid government control. However, the court, led by Justice Sanjay Kishan Kaul, also pointed out that Facebook has become a place for harmful messages, ideas, and opinions. To show what they meant, the Court mentioned the argument around the 2016 US Presidential elections. There were claims that Russia interfered, possibly with help from platforms like Facebook. As an introduction to their decision, the court, which also included Justices Dinesh Maheshwari and Hrishikesh Roy, stated that Facebook is India's most popular social media platform, with around 270 million users. The court then shared these thoughts: Companies like Facebook must be responsible to the people who give them so much power. Such great power must come with responsibility. Companies like Facebook must be responsible to those who give them this power. While Facebook has been important for free speech, helping people share their views and avoid government control, we can't forget that it has also become a place for harmful messages, ideas, and opinions. A strong democracy works best when citizens can make informed decisions. These decisions should come from understanding many different viewpoints. The huge amount of information available today creates new challenges. It subtly changes how we discuss topics where people have very different opinions. So, while social media helps citizens and lawmakers talk to each other, it has also become a tool for different groups. Facebook has also become a place for harmful messages, ideas, and opinions. Facebook has been key for free speech, giving a voice to those without one and helping people avoid government control. But we can't forget it has also become a place for harmful messages, ideas, and views. A successful democracy needs citizens to make smart choices. These choices should come from considering many different opinions and ideas. The huge amount of information online today creates new problems. It subtly changes how we discuss topics where opinions are very divided. So, while social media helps citizens and leaders talk openly, it also serves as a tool for various groups. These groups know how to use its power to cause trouble. This leads to a strange outcome: extreme ideas become common, spreading false information. Stable democracies around the world are seeing these effects and are worried. Elections and voting, which are the core of a democratic government, are now at risk because of social media manipulation. This has led to big discussions about how much power platforms like Facebook have. People also worry that their business models collect private data and try to grab everyone's attention. A stable society can be severely damaged when citizens become 'divided and stuck' by these online discussions, splitting society apart. Less informed people might not check if information from friends is true, or they might believe everything popular leaders say without question. The court also mentioned that countries like Australia, the US, the UK, and the EU have tried to manage platforms like Facebook better. However, these efforts are still new. Studies are being done to understand how these platforms work and how much trouble they can cause. For instance, Australia recently tried to create a law. This law would have made Facebook pay news publishers for using their stories. Australia saw this law as a way to control Facebook's strong influence on politics, society, and democracy. In response, Facebook stopped all news on its platform in Australia. After some back and forth, they found a compromise. The US also had big debates after the 2016 Presidential elections. There were claims that Russia interfered, possibly with help from platforms like Facebook. Last year, the EU created new proposed laws, called the Digital Services Act and Digital Markets Act. These laws set rules for platforms to follow, the court explained. Also from the Judgment: The Supreme Court supported the Delhi Assembly's request for Facebook to appear. The court stated that Delhi cannot handle more riots, and Facebook's role in them must be examined. The Supreme Court said Facebook cannot break India's 'unity in diversity' by claiming it didn't know or didn't play a key part. In the Facebook vs. Delhi Assembly case, the Supreme Court ruled that the Assembly's job is not just to make laws. It can also investigate matters. The Supreme Court stressed that the legal system is for everyone. It emphasized that court decisions should be short and clear, and oral arguments should be limited.
1. The technological age has produced digital platforms – not like the railway platforms where trains were regulated on arrival and departure. These digital platforms can be imminently uncontrollable at times and carry their own challenges. One form of digital platforms are the intermediaries that claim to be providing a platform for exchange of ideas without any contribution of their own. It is their say that they are not responsible for all that transpires on their platform; though on complaints being made, they do remove offensive content based on their internal guidelines. The power and potentiality of these intermediaries is vast, running across borders. These are multinational corporations with large wealth and influence at their command. By the very reason of the platform they provide, their influence extends over populations across borders. Facebook is one such corporation. 2. A testament to the wide-ranging services which Facebook offers is 1 “Preface”; See A. M. Singhvi et. al., The Law of Emergency Powers – the fact that it has about 2.85 billion monthly active users as of March, 2021.2 This is over 1/3rd of the total population of this planet. In the national context, Facebook is the most popular social media platform in India with about 270 million registered users. Such vast powers must necessarily come with responsibility. Entities like Facebook have to remain accountable to those who entrust them with such power. While Facebook has played a crucial role in enabling free speech by providing a voice to the voiceless and a means to escape state censorship, we cannot lose sight of the fact that it has simultaneously become a platform for disruptive messages, voices, and ideologies. The successful functioning of a liberal democracy can only be ensured when citizens are able to make informed decisions. Such decisions have to be made keeping in mind a plurality of perspectives and ideas. The information explosion in the digital age is capable of creating new challenges that are insidiously modulating the debate on issues where opinions can be vastly divided. Thus, while social media, on the one hand, is enhancing equal and open dialogue between citizens and policy makers; on the other hand, it has become a tool in the hands of various interest groups who have 2 Facebook, Press Release, Facebook reports 1st Quarter 2021 Results, (2021) accessible at https://www.prnewswire.com/news-releases/facebook-reports-first- recognised its disruptive potential. This results in a paradoxical outcome where extremist views are peddled into the mainstream, thereby spreading misinformation. Established independent democracies are seeing the effect of such ripples across the globe and are concerned. Election and voting processes, the very foundation of a democratic government, stand threatened by social media manipulation. This has given rise to significant debates about the increasing concentration of power in platforms like Facebook, more so as they are said to employ business models that are privacy-intrusive and attention soliciting. 3 The effect on a stable society can be cataclysmic with citizens being ‘polarized and parlayzed’ by such “debates”, dividing the society vertically. Less informed individuals might have a tendency to not verify information sourced from friends, or to treat information received from populist leaders as the gospel truth. 3. It is interesting to note that the Oxford Dictionary in 2016 chose “Post-Truth” as the word of the year. The adjective has been defined as “relating to or denoting circumstances in which objective facts are less 3 UNESCO, Concept Note, Media for Democracy, Journalism and Elections in times of Misinformation, (2019) accessible at: influential in shaping public opinion than appeals to emotion and personal belief.”4 This expression has a period relevance when it came to be recognised contextually with divided debates about the 2016 US Presidential Elections and Brexit – two important events with effects beyond their territorial limits. The obfuscation of facts, abandonment of evidentiary standards in reasoning, and outright lying in the public sphere left many aghast. A lot of blame was sought to be placed at the door of social media, it being a source of this evolving contemporary phenomenon where objective truth is becoming a commodity with diminishing value. George Orwell, in his 1943 essay titled “Looking Back on the Spanish War” had expressed “…the very concept of objective truth is fading out of the world. After all, the chances are that those lies, or at any rate similar lies will pass into history”5 – the words have proved to be prophetic. 4. In the conspectus of the aforesaid, it is difficult to accept the simplistic approach adopted by Facebook - that it is merely a platform posting third party information and has no role in generating, controlling 4 Oxford Dictionary Word of the Year 2016, accessible at: 5 See K. Gessen, Introduction, 26, in All Art Is Propaganda: Critical Essays (G. Orwell et. al., 2008). or modulating that information. The endeavour to hide behind such simplistic models have been found to be unacceptable by the UK Parliament. The House of Commons Digital, Culture, Media and Sport Select Committee in its 2018 Report had opined that this would amount to shirking of their responsibilities with respect to content regulation on 5. Serious questions have been raised about whether there is a faulty architecture of such intermediary platforms and whether the kind of free, liberal debate which they sought to encourage has itself become a casualty, defeating the very objective of providing that platform. It is too late in the day for companies like Facebook to deny that they use algorithms (which are sequences of instructions) with some human intervention to personalise content and news to target users. The algorithms select the content based on several factors including social connections, location, and past online activity of the user. These algorithms are often far from objective with biases capable of getting 6 Digital, Culture, Media and Sport Committee, U.K. House of Commons, Disinformation and 'fake news': Final Report, 20-44 (18/02/2019), accessible at: replicated and reinforced. The role played by Facebook is, thus, more active and not as innocuous as is often presented when dealing with third party content. 6. In fact, in the proceedings before us, it is their contention that there are times when they are at the receiving end of both groups alleging bias towards the other but then this is a sequitur to their ability to decide which content to amplify, suggest, and elevate. Internationally, Facebook has had to recognise its role in failing to prevent division and incitement of offline violence in the context of the stated ethnic cleansing in Myanmar where a crescendo of misinformation and posts, somehow missed by Facebook employees, helped fuel the violence. 7 The platform similarly apologised for its lack of serious response to evident signs of abuse of the platform in Sri Lanka, which again is stated to have stoked widespread violence in 2018 in the country and had to acknowledge its need to be regulated though the exact method is still unclear and a prerogative of law making authority. 7 Facebook admits it was used to 'incite offline violence' in Myanmar , BBC (06/11/2018), accessible at: https://www.bbc.com/news/world-asia-46105934. Joshua Brustein, Facebook Apologizes for Role in Sri Lankan Violence , Bloomberg (13/05/2020), accessible at: https://www.bloomberg.com/news/articles/2020-05- 7. There have been endeavours in light of the aforesaid by countries like Australia, US, the UK, and the EU for ways to regulate platforms such as Facebook in an efficient manner but their efforts are still at a nascent stage as studies are undertaken to understand the dynamism of the platform and its disruptive potential. A recent example has been Australia’s effort to formulate a legislation that would require Facebook to pay publishers for using their news stories. The law was seen as a tool to regulate the platform’s unchecked influence over political discourse, society, and democracy. In response, Facebook blocked all news on its platform across the country with the result that there was some relaxation but ultimately a via media was found. The US has also seen heated debates arising from the 2016 Presidential elections with allegations of supposed interference by Russia allegedly facilitated by platforms like Facebook. Last year, the EU formulated legislative proposals namely the Digital Services Act and Digital Markets Act, setting out rules for 8 News Media and Digital Platforms Mandatory Bargaining Code Bill, 2020 was formulated by Australia; See Alex Barker, Jamie Smyth et al., Facebook bans Australian news as impact of media law is felt globally, Financial Times (18/02/2021), accessible at: https://www.ft.com/content/cec5d055-c2d1-4d5f- a392-a6343beb0b01. See also European Parliament, Social media and democracy: we need laws, not platform guidelines (10/02/2021) accessible at: 8. We have penned down a detailed introduction to appreciate the gravity of what was debated before us in the context of Facebook’s hands off approach, who have urged that they cannot be compelled to participate in proceedings of Sub Committees formed by the Parliament or the Legislative Assemblies. The immense power that platforms like Facebook wield has stirred a debate not only in our country but across the world. The endeavour has been to draw a line between tackling hate speech and fake news on the one hand and suppressing legitimate speech which may make those in power uncomfortable, on the other. This delicate balance has thus far only been maintained by the intermediaries by being value-neutral. The significance of this is all the more in a democracy which itself rests on certain core values. This unprecedented degree of influence necessitates safeguards and caution in consonance with democratic values. Platforms and intermediaries must subserve the principal objective as a valuable tool for public good upholding democratic values. 9. The sheer population of our country makes it an important destination for Facebook. We are possibly more diverse than the whole of Europe in local culture, food, clothing, language, religion, traditions and yet have a history of what has now commonly been called ‘unity in diversity’. This cannot be disrupted at any cost or under any professed freedom by a giant like Facebook claiming ignorance or lack of any pivotal role. 10. Delhi, the capital of our country, witnessed an unfortunate eruption of violence between 24th and 29th February, 2020 with communal riots in different parts of North-East Delhi. This caused loss of life and property and disrupted the working of civic services in Delhi. It need not be stated that like any other incident of this nature, it also took a political colour. This produced a divide in the society with people across political affiliations blaming each other. 11. In the wake of these riots, the Legislative Assembly of the National Capital Territory of Delhi (“the Assembly”) resolved to constitute a Committee on Peace and Harmony (“the Committee”) under the chairmanship of Mr. Raghav Chadha, Member, Legislative Assembly on 02.03.2020, to inter alia “consider the factors and situations which have the potential to disturb communal harmony in the National Capital Territory of Delhi and suggest measures to eliminate such factors and deal with such situations so as to establish harmony among different religious or linguistic communities or social groups.” It is the say of the Assembly and the Committee, that it is their objective to detect what happened and formulate recommendations to ensure it does not happen again. It is appropriate to extract the Terms of Reference of the Committee dated 12.03.2020 as issued by the Assembly Secretariat as (General information relating to legislative and other matters) Subject: Terms of Reference of the Committee on Peace and Hon’ble Members are hereby informed that Hon’ble Speaker has approved the following Terms of Reference for the Committee on Peace and Harmony constituted on 02.03.2020: 1. There shall be a Committee on Peace and Harmony inter-alia to consider the factors and situations which have the potential to disturb communal harmony in the National Capital Territory of Delhi and suggest measures to eliminate such factors and deal with such situations so as to establish harmony among different religious or linguistic communities or social groups. 2. The Committee shall consist of nine members who shall be nominated by the Speaker. 3. The term of the Committee shall be one year. 4. The functions of the Committee shall be:- (i) to consider the petitions, complaints or reports from the members of the public, social organizations, journalists etc. on the situations prevailing in a particular area/areas which have the potential to disturb communal peace and harmony or where communal riots have occurred and to examine in detail and identify the factors responsible for it. (ii) to recommend suitable measures to defuse the situation and restore harmony among religious communities, linguistic communities or social groups. (iii) to recognise, reward and felicitate individuals who played a role in the protection of fellow citizens during acts of communal violence, or undertook any activity that led to the restoration of peace in the state. (iv) to recognize, reward and felicitate individuals whose information resulted in the registration of First Information Reports (FIRs) in relation to the crimes committed during the communal (v) to undertake scientific study of the religious, linguistic and social composition of the population of NCR Delhi, with a view to identifying and strengthening the factors which unite the people despite the diversity in terms of their social, religious, economic and cultural tradition. (vi) to recommend measures to be undertaken by the government towards establishing communal harmony and peace in the state. (vii) to recommend action against such persons against whom incriminating evidence is found or prima facie case is made out for incitement to violence. (viii) to examine such other matters, broadly in conformity with the objectives of the Committee, as may seem fit to the Committee or are specifically referred to it by the House or the Speaker. (ix) The Committee shall submit its report to the House. If the House is not in session the Committee may submit the report to the Speaker who may forward the same to the Govt. for necessary action thereon. The Secretary shall lay the report on the Table of the House on the first day of the next session. (x) As soon as maybe after the submission of the report to the House by the Committee, the Govt. shall take appropriate action in the matter dealt with in the report and a complete statement on the action taken by all the authorities thereon shall be laid in the House within two weeks after the report is presented in the House. (xi) In considering/examining the complaints/reports etc., the Committee may engage the services of experts. (xii) The Speaker shall reconstitute the Committee on the expiry of its term. (xiii) Except in respect of matters provided in these rules, other matters in connection with the Committee shall be dealt with under the general rules relating to the Committees. (xiv) The Speaker may issue such directions as he may consider necessary for regulating the procedure in connection with all matters involving the consideration of any question that may be brought up before the Committee. (xv) The Committee shall have all the powers, privileges and immunities as are available to the Committees of the Legislative Assembly of National Capital Territory of Delhi. 12. It appears that the first public meeting was held on 05.03.2020, which was attended by religious leaders, social workers and various officials from different walks of life. It is the say of the Committee that thousands of complaints were received which inter alia suggested that Facebook had been used as a platform for fomenting hate and jeopardising communal harmony. This was further fuelled by an article published in the Wall Street Journal on 14.8.2020 titled “Facebook’s Hate-Speech Rules Collide with Indian Politics” (“the Article”) suggesting that there was a broad pattern of favouritism towards the ruling party and Hindu hardliners. The Article also made serious allegations of lapses on the part of Facebook India in addressing hate speech content. 13. The aforesaid resulted in two important developments. The first was that on 20.08.2020 the Parliamentary Standing Committee on Information Technology (“Parliamentary Committee”) issued a notice requesting Mr. Ajit Mohan, Petitioner No. 1 herein, Vice President and Managing Director of Petitioner No. 2 Facebook India Online Services Private Limited, to appear before the Parliamentary Committee on 02.09.2020. The notice stated that the Committee was seeking Facebook India’s views inter alia on the subject of “safeguarding citizens’ rights and prevention of misuse of social/online news media platforms including special emphasis on women security in the digital space.” The Subject: Examination of the subject ‘Safeguarding citizens’ rights and prevention of misuse of social/online news media platforms including special emphasis on women security in the digital space’ I am directed to state that the Standing Committee on Information Technology are examining the subject ‘Safeguarding citizens’ rights and prevention of misuse of social/online news media platforms including special emphasis on women security in the digital space’. 2. Keeping in view the importance of the subject and its wider implications in the present context, the Committee have decided to hear the views of representatives of Facebook India on the above subject at their sitting scheduled to be held on Wednesday, 2 nd September, 2020 from 1600 hrs. onwards in Main Committee 3. It is, therefore, requested that senior most representatives of Facebook India may make it convenient to appear before the Committee on the said date, time and venue. The names/designations of the representatives from Facebook India who will appear before the Committee may be intimated to this Secretariat by 27th August, 2020 or before positively. In view of the COVID-19 pandemic, you are requested to restrict the number of representatives who will attend the scheduled sitting on 2 nd September, 2020 to a maximum of 5 persons. 4. You may like to submit a brief note highlighting your views/comments on the subject matter to the Committee before sitting. The same can be e-mailed at comit@sansad.nic.in. 5. Entry passes to the venue of the sitting may be collected from the IT Committee Branch in advance. 6. A copy of the points of Conduct and Etiquette to be observed by non-official witnesses appearing before the Committee is enclosed at Annexure-I for your guidance. comit@sansad.nic.in” 14. Along with the aforesaid letter was annexed as Annexure-I the Points of Conduct and Etiquette for the guidance of witnesses appearing before the Parliamentary Committees or their sub-committees, which inter alia in para 8, set out as to what would constitute breach of privilege and contempt of the Parliamentary Committee. The said The witnesses should note the following points while appearing before Parliamentary Committee: 1. Due respects to the Chairman and the Committee/Sub- Committee should be shown by the witness by bowing while taking his seat. 2. The witness should take the seat earmarked for him opposite to the seat of the Chairman. 3. The witness should take the oath, or make affirmation, if so asked by the Chairman. The oath or affirmation will be administered by the Secretary. The witness will take the oath or make affirmation standing in his seat and bow to the Chair just before taking the oath or making the affirmation and immediately 4. The witness should answer specific questions put to him either by the Chairman, or by a Member of the Committee or by any other person authorized by the Chairman. The witness may be asked to place before the Committee any other points that have not been covered and which a witness thinks are essential to be placed before the Committee. 5. All submissions to the Chair and the Committee should be couched in courteous and polite language. 6. When the evidence is completed, and the witness is asked to withdraw, he should, while leaving, bow to the Chair. 7. The witness should not smoke or chew when he is seated before the Committee. 8. Subject to the provisions of Rule 270 of the Rules of Procedure and Conduct of Business in the Lok Sabha, the witness should note that following acts shall constitute breaches of (a) Refusal to answer questions. (b) Prevarication or willfully giving false evidence or suppressing the truth or misleading the Committee. (c) Trifling with the Committee; returning insulting answers. (d) Destroying or damaging a material document relative to the enquiry. 9. The witness should not bring cellular phones inside the xxxxx” 15. Mr. Ajit Mohan, Petitioner No. 1, duly appeared before the Parliamentary Committee and offered his views. 16. The second development took place on 31.08.2020 when the Chairman of the Committee held a press conference (“the press conference”) wherein he summarised the complaints received in the hearings conducted between 25.08.2020 and 31.08.2020. In this process, he stated that it prima facie appeared that Facebook had colluded with vested interests during the Delhi riots in February, 2020. Comments were also made by the Chairman to the effect that Facebook ought to be treated as a co-accused and an independent investigation should be carried out into its role in the riots. It was stated that if the investigation uncovered strong evidence against Facebook, a supplementary chargesheet should be filed in this regard (we may note here itself that the stand taken during the course of arguments was that these were not the Chairman’s own views but were merely the views expressed by the Committee). Since Facebook had not been heard, it was observed in the press conference that before any action is taken in writing, Facebook should be given a chance to appear before the Committee. Consequently, notice for appearance was issued on 10.09.2020 (“First Impugned Summons”) by the Assembly to Mr. Ajit Mohan in the capacity of Vice President and Managing Director of Facebook India. The First Impugned Summons highlighted the factum of numerous complaints alleging intentional omission and deliberate inaction on the part of Facebook in tackling hate speech online. The Article was also referred to and Mr. Ajit Mohan was called upon to deliver insights to the Committee with respect to Facebook India’s internal functioning and enforcement of policies in view of the special knowledge that he possessed. It was clearly stated that he was being called as a witness for testifying on oath before the Committee on 15.09.2020. Significantly, no consequences in the form of breach of parliamentary privilege were intimated in case Mr. Ajit Mohan refused to Subject: Notice for Appearance before the Delhi Legislative Assembly’s Committee on Peace and Harmony, NCT of Delhi. The Delhi Legislative Assembly’s committee on ‘Peace and Harmony’, headed by Hon’ble Member of Legislative Assembly of NCT of Delhi, Mr. Raghav Chadha, as its Chairman along with other Hon’ble Members of the Legislative Assembly, assisting and facilitating the state’s endeavour to maintain and promote an irenic atmosphere in the city as well as establishing a conducive milieu of concordance, peace and pacification amongst different communities residing in NCT of Delhi. Pertinently, the committee has received numerous complaints alleging inter alia intentional omission and deliberate inaction on the part of social media platform-Facebook to apply hate speech rules and Polices which has allegedly led to serious repercussions and disruption of peace and harmony across the NCT of Delhi. A few complainants have also drawn considerable strength from the news report published by The Wall Street Journal on 14.08.2020, titled as ‘Facebook’s Hate-Speech Rules Collide With Indian Politics’. The committee had promptly taken cognizance of serious allegations set out in the vetted complaints and have begun the proceedings in this regard, pursuant to which numerous witnesses have been examined. Significantly, in the wake of serious allegations leveled against Facebook India unit which you have been spearheading since 2019, you, the addressee, as the Vice-President and Managing Director of Facebook India and as a representative of the same, are best suited to deliver insights to the committee with respect to Facebook India’s internal functioning and enforcement of policies, and thus, your special knowledge in this regard would be imperative for the committee while examining the current issue in hand. In view thereof, the committee, under the Chairmanship of Hon’be (sic) MLA Sh. Raghav Chadha, calls you, the addressee, as a witness for testifying on oath and for rendering your assistance by providing the relevant information and explanations in order to smoothly expedite the determination of the veracity of allegations leveled against Facebook in the complaints and depositions made before the committee. In pursuance thereof, we hereby summon you, the addressee, to appear before the committee on 15 th September, 2020 at 12 Noon at MLA Lounge-1, Delhi Vidhan Sabha, for the purpose of recording your deposition on oath and participating in the proceedings carried out by the committee. Email ID dvscommittee@delhi.gov.in” 17. One Mr. Vikram Langeh, Director of Trust and Safety, Facebook sent a reply dated 13.09.2020 emphasising that Facebook’s internal policies seek to protect user safety and security and also emphasised the different mechanisms it employs to tackle hate speech content. The factum of Facebook having given testimony before the Parliamentary Committee was also set out. A plea was raised that the role of regulation of intermediaries like Facebook squarely fell within the exclusive authority of Union of India; in exercise of which the Parliament had enacted the Information Technology Act, 2000 (“the IT Act”). Not only that, the subject of law and order in the NCT of Delhi was stated to fall within the exclusive domain of the Union of India. On these pleas the First Impugned Summons was objected to and requested to be recalled. Delhi Legislative Assembly, NCT of Delhi. Subject: Response to Notice for Appearance before the Delhi Legislative Assembly’s Committee on Peace and Harmony, NCT Facebook India Online Services Private Limited is in receipt of the notice dated September 10, 2020 (“Notice”) issued by the Delhi Legislative Assembly’s Committee on Peace and Harmony Facebook, Inc. (“Facebook”) operates and manages the Facebook platform, and provides the Facebook service to users in India. Facebook shares the Committee’s concerns regarding the dissemination of hate speech online and has implemented robust measures to curb its spread on Facebook’s platforms. Facebook bans individuals and groups that proclaim a hateful and violent mission from having a presence on its platforms. Facebook seeks to apply its comprehensive standards uniformly and has identified a range of such individual and groups across the globe. Facebook has also built some of the most advanced systems in the world to protect its users’ safety and security, investing billions of dollars in technology and hiring tens of thousands of people to work on safety and security. Based on these efforts, we removed 22.5 million pieces of hate speech content in the second quarter of 2020 (up from just 1.6 million pieces of hate speech removed in the last quarter of 2017), nearly 95 percent of which we removed before it was reported to us. Facebook is committed to being more transparent about how it combats hate speech and routinely publishes a Transparency Report, which provides details about steps taken by Facebook to prevent and action content that violates its policies. In view of the importance of this subject, the Parliament’s Standing Committee on Information Technology (“Parliamentary Standing Committee”) is examining the issues raised in your Notice as a part of its inquiry into “Safeguarding citizens’ rights”. We gave testimony before the Parliamentary Standing Committee. We are enclosing the notice received from the Parliamentary Standing Committee for your reference. (Annexure A) As you are well aware, the regulation of intermediaries like Facebook falls within the exclusive authority of the Union of India and in exercise of this power to regulate “communications”, Parliament has enacted the Information Technology Act, 2000. Further, the subject of “law and order” in the National Capital Territory of Delhi also falls within the exclusive domain of the Union of India. Given that the issues raised by the Notice involve subject matter within the exclusive domain of the Union of India, and that the matters are under active consideration by Parliament, we respectfully object to the Notice and request that you recall it. Facebook responds to the Notice without prejudice to, and expressly reserving, any and all of its rights. 18. The aforesaid was not acceptable to the Committee, which formulated a reply to Facebook’s response on 18.09.2020, this time addressing it to both Mr. Ajit Mohan and Mr. Vikram Langeh. The three annexures enclosed with the reply were: (a) Terms of Reference of the Committee (“Terms of Reference”); (b) Sections 18 and 37 of the Government of National Capital Territory Act, 1991 (“GNCTD Act”); and (c) fresh summons issued to Mr. Ajit Mohan (“Second Impugned Summons”) under Rule 172 of the Rules of Procedure and Conduct of Business in the Legislative Assembly of NCT of Delhi (“the Rules”). 19. The Committee’s reply alluded to its Terms of Reference to emphasise that it was in furtherance of the objective of good governance and to carry out responsibilities of the State under the Constitution. The purpose, it was stated, was to invite the public to join this exploratory process, the remit of which included making suggestions to the Union Government beyond using the mechanisms of the Inter-State Council. This was stated to be in line with the principles of cooperative federalism, which encompassed a large number of areas. It is at this stage that a perceived element of threat was held out to Mr. Ajit Mohan stating that his refusal to appear was inconsistent with the law of privileges of a legislature (which extends to the Committee and its members). He was asked to appear before the Committee on 23.09.2020 in the “spirit of democratic participation and constitutional mandates.” Importantly, it was clearly stated that non-compliance would be treated as breach of privilege of the Committee and necessary action would be 20. It is the aforesaid Second Impugned Summons which triggered the filing of the present proceedings under Article 32 of the Constitution of India by Mr. Ajit Mohan as the first petitioner, in his capacity as the Vice President and Managing Director of Facebook India Online Services Private Limited, which is the 2nd petitioner. The third petitioner is the parent company, Facebook Inc., US. The array of respondents include the Assembly as the first Respondent while Respondent Nos. 2 to 4 are the Union of India, represented through different Ministries, being Ministry of Law and Justice, Ministry of Home Affairs and Ministry of Electronics and Information Technology. Respondent Nos. 5 & 6 are the Lok Sabha and the Rajya Sabha respectively. Delhi Police was impleaded as the 7 th respondent. We may note that in the course of the proceedings the Committee sought to be impleaded as a party and in terms of the consent order dated 20.01.2021 the said entity was permitted to intervene. The prayers made in the writ petition are as under: “a. Issue a writ/order or direction in the nature of Mandamus setting aside the Impugned Summonses dated September 10, 2020 b. Issue a writ/order or direction in the nature of Prohibition restraining Respondent No.1 from taking any coercive action against Petitioners in furtherance of the Impugned Summonses; c. Issue or pass any writ, direction or order, which this Hon’ble Court may deem fit and proper under the facts and circumstances of the case.” 21. On 23.09.2020, in the presence of the counsel of the parties, notice was issued. Dr. Singhvi, learned Senior Advocate appearing for Respondent No.1, on instructions, stated that the meeting scheduled for the said date had already been deferred and no further meeting would be fixed qua the petitioners till the next date of hearing. Further, on the Court’s query regarding the role of Respondent Nos. 5 and 6 (the Lok Sabha and the Rajya Sabha respectively), Mr. Harish Salve, learned Senior Advocate appearing for Petitioner Nos. 1 and 2 submitted that the only purpose of serving them was that although no relief was claimed, there was a perception that there may be some interplay of powers between the Delhi Secretariat and the Secretariat of the Central 22. The aforesaid interim arrangement continued as pleadings were completed. The matter was set down for hearing with rule nisi being issued on 21.01.2021. The issue was debated before us on numerous dates thereafter and the hearing concluded on 24.02.2021. We recorded that the counsels had argued over a period of 26 hours, leaving the task to us to pen down the judgment - which we seek to perform now. 23. At this stage, we must note a significant development that arose during the course of the proceedings, possibly emanating from certain questions posed by the Court qua the press conference, the summonses issued to Petitioner No.1, and on account of certain submissions advanced by learned counsel for the Petitioners. An affidavit was placed before us (as recorded in the proceedings of 04.02.2021) in terms whereof the two impugned summonses issued to Petitioner No.1 dated 10.09.2020 and 18.09.2020 stood withdrawn. A fresh notice was issued on 03.02.2021 (“The New Summons”) to Petitioner No. 2, i.e. Facebook India alone. The New Summons dated 03.02.2021 reads as under: Subject: Notice for Appearance under Rule 172 of Rules of Procedure and Conduct of Business in the Legislative Assembly of NCT of Delhi. 1. In supersession of earlier notice(s)/summons dated 10.09.2020 and 18.09.2020, the present notice for appearance is being issued. 2. I am directed to state that the National Capital Territory of Delhi had witnessed unprecedented communal disharmony and violence in February 2020. The Hon’ble Speaker of the Legislative Assembly of NCT of Delhi has constituted a Committee on Peace on (sic.) Harmony under the Chairmanship of Sh. Raghav Chadha along with other Hon’ble Members of the Legislative Assembly to recommend suitable measures to defuse the situation and restore harmony among religious communities, linguistic communities or social groups. The Committee aims to recommend preventive and remedial measures concerning issues of governance, social cohesion, unity, brotherhood and peace. The Committee further aims to recommend measures to strengthen overall social and economic development in the context of establishing communal harmony and peace in society in the NCT of Delhi. 3. Keeping in view the importance of the above subject and its implication on persons in the NCT of Delhi, various persons including journalists, former bureaucrats and community leaders have appeared before the Committee to offer their evidence and suggestions. The Committee has observed and is of the opinion that social media has a very important role in curbing the spread of false, provocative and malicious messages which can fan the violence and disharmony. 4. Since, Facebook has lakhs of users in the NCT of Delhi, in the above-stated context, the Committee has decided to hear the views of representative(s) of Facebook India on the above subject at their sitting scheduled to be held on 25th February, 2021 from 11 AM onwards in MLA Lounge-1, Assembly Complex, Old Secretariat, Delhi-110054 as per the Rules of Procedure and Conduct of Business of the House. 5. It is, therefore, requested that a competent senior representative(s) of Facebook India well conversant with the issues involved may appear before the Committee on the said date, time and venue as a witness. The names/designations of the representatives from Facebook India who will appear before the Committee may be intimated to this Secretariat by 24 th February, 2021 or before positively. Because of the COVID-19 pandemic, you are requested to restrict the number of representatives to a minimum. 6. Please note that failure to send a representative as summoned above, could in terms of the Rules of Procedure and Conduct of Business in the Legislative Assembly of NCT of Delhi lead to initiation of proceedings for breach of privilege/contempt of the 7. In light of the abovementioned supersession, previous notice(s)/summons dated 10.09.2020 and 18.09.2020 stand E-mail ID: dvscommittee@delhi.gov.in ” Dr. Singhvi submitted that since the legal position was being debated in the larger context, the New Summons would not make a difference, except that the specific challenge to the earlier summonses would not stand as they stood withdrawn and had been substituted with the New Summons. It was Mr. Salve’s view, that this would not really be a redeeming feature and the matter still had to be debated. 24. Notably, a discordant note did arise in the stands canvassed on behalf of the Assembly by Dr. Singhvi and on behalf of the Committee by Dr. Rajeev Dhavan. In the perspective of Dr. Dhavan, the earlier summons were as good in law as the New Summons and, thus, it made no difference. Obviously, Dr. Singhvi thought otherwise, as there would have been no occasion to withdraw the earlier summons and issue a fresh summons. We say so as this is one aspect emphasised in the course of arguments in rejoinder by Mr. Salve. 25. One aspect to be noticed is that the New Summons dated 03.02.2021 has been issued by the Deputy Secretary of the Committee. Thus, on the one hand, the Committee deemed it appropriate to withdraw the earlier summons and issue a fresh one (apparently wiser after some arguments from Mr. Salve and possibly some remarks of the Court) while on the other hand as an intervening entity, peculiarly, the stand of Dr. Dhavan was that this was not required to be done! On this, we say no 26. In his opening arguments Mr. Salve punched hard on the issue that niceties aside, one has to consider the true intent with which the summons was issued. In short, it was his say that the objective was to file a supplementary chargesheet and rope in Facebook. To substantiate this contention, he refers to three factors, i.e. (a) Para 4 (vii) read with 4 (i) of the terms of reference of the Committee; (b) the Article and (c) the press conference dated 31.08.2020. 27. The aforesaid was in the background of what was a politically polarised issue and Mr. Salve contended that the Petitioner had no intent to become part of such a debate. The parent company (Facebook Inc.) being an intermediary based in the US, could hardly be expected to be roped into this political battle which formed the basis of the summonses that have been issued. It was emphasised that the Committee’s actions amounted to a clear and present danger of coercive action, which was in violation of Petitioner No. 1’s fundamental rights. In the process of reading his note of arguments, which were more detailed with different nuances, broadly four issues were sketched out:  Does a House have a privilege to summon a person to give evidence who is not directly or indirectly part of the executive?  Do powers of privilege extend to summoning an individual and compelling them to give evidence on matters of fact or seek  If there does indeed exist a privilege, how is the same to be reconciled with an individual’s right to privacy and free speech?  Is the House constrained by the subject matter which constitutes a part of the business of the House relating to its legislative In light of these four issues canvassed by Mr. Salve, we propose to set out the detailed arguments and thereafter proceed with our analysis under three broad heads – (a) the privileges issue, (b) privilege, right to privacy and free speech and (c) legislative competence. 28. Mr. Salve took us through the history of the notion of privilege, how it emanated, and how it is to be understood in the current context. He urged that privilege is a special right enjoyed by the House as a shield in order to enable it to work without fear or interference. It owes its origination in the United Kingdom under the rubric of the constitutional role of the House of Commons (functioning as a court). This role, however, has to be appropriately adapted to the Indian Constitution where there is a sharp separation of powers. A distinction was, thus, sought to be drawn that while privileges have arisen by virtue of House of Commons being a Court (with powers such as summoning persons to its “bar”) it cannot be read into the privileges of a Parliament of a republic. It was, thus, argued that in the Indian context, parliamentary privileges are strictly restricted to legislative functions. Privileges serve the distinct purpose of safeguarding the integrity of the legislative functions against obstructions which could be caused by either members or non-members. Learned counsel sought to refer to certain judicial pronouncements in this behalf. (i) In State of Karnataka v. Union of India 9 the proceedings related to a Commission of Inquiry appointed by the Central Government under the Commission of Inquiry Act, 1952 against the then Chief Minister of Karnataka. The challenge was laid by the State Government which was repelled by a majority judgment of six Judges with one dissenting Judge. The most significant aspect emphasised was that the “powers” meant to be indicated in Article 194(3) are not independent but are such powers which depend upon and are necessary for the conduct of business of each House. Thus, they could not be expanded into those of the House of Commons in England for all purposes. The Constitution is sovereign or supreme and thus, the Parliament as well as each legislature of the State in India enjoys only such legislative powers as the Constitution confers upon it. A distinction was made in the role performed by the Parliament and Legislative Assembly while exercising its legislative power as against a court of justice. In taking up proceedings which are quasi judicial in cases of contempt of its authority and motions concerning its “privileges” and “immunities”, the House only seeks removal of obstructions to the due performance of its legislative functions. However, if the question of jurisdiction arises as to whether a matter falls here or not, it has to be decided by the ordinary courts in appropriate (ii) The next judgment relied upon is Amarinder Singh v. Special Committee, Punjab Vidhan Sabha & Ors. 11 In this case, Shri Amarinder Singh, then a Member of the Punjab Vidhan Sabha was expelled for the remaining part of the 13th Vidhan Sabha on allegations of criminal misconduct relating back to his tenure as the Chief Minister of Punjab during the 12th term of the Vidhan Sabha qua alleged responsibility for improper exemption of a vacant plot of land licensed to a private party. On a challenge being laid, the Supreme Court opined in favour of Shri Amarinder Singh holding that the proper course of action for the State Government should have been to move the criminal law machinery with the filing of a complaint followed by investigation as contemplated under the Code of Criminal Procedure and thus, the Punjab Vidhan Sabha had exceeded its powers by expelling the appellant on the ground of breach of privilege when there existed 10 Smt. Indira Nehru Gandhi v. Shri Raj Narain & Anr., (1975) 2 SCC 159. none. The alleged improper exemption of land was only an executive act and it did not distort, obstruct, or threaten the integrity of legislative proceedings in any manner observed the Constitution Bench of five Judges. In coming to the conclusion, the scope of the powers, privileges and immunities available under Articles 105(3) and 194(3) have been discussed in paras 33 to 37. It was noticed that they were not codified by way of statute till date and, thus, the Supreme Court held that it could consider the principles and precedents relatable to the British House of Commons. This Court had adopted a similar approach towards the concept of legislative privileges to interpret Article 194(3) in Re. Special Reference 1 of 1964.12 An aspect emphasised was that there was a distinction between exercise of legislative privileges and ordinary legislative functions. In that context it was observed “45. In U.P. Assembly case (supra. ), this Court had also drawn a distinction between the exercise of legislative privileges and that of ordinary legislative functions in the "70. ….There is a distinction between privilege and function, though it is not always apparent. On the whole, however, it is more convenient to reserve the term `privilege' to certain fundamental rights of each House which are generally accepted as necessary for the exercise of its constitutional functions. The distinctive mark of a privilege is its ancillary character. The privileges of Parliament are rights which are ‘absolutely necessary for the due execution of its powers.’ They are enjoyed by individual Members, because the House cannot perform its functions without unimpeded use of the services of its Members; and by each House for the protection of its Members and the vindication of its own (iii) The next judgment relied upon is in the case of Justice (Retd.) Markandey Katju v. Lok Sabha & Anr.13 Facebook, as an intermediary, was used by Justice Markandey Katju, former Judge of this Court to make a statement that Mahatma Gandhi was a British agent causing harm to India and that Netaji Subhash Chandra Bose was an agent of Japanese fascism. This naturally invoked the hackles of the Parliamentarians and a discussion took place in the Rajya Sabha. A resolution was passed unanimously with the Lok Sabha doing the same on the next day unequivocally condemning the remarks of Justice (Retd.) Katju. Letters and e- mails were written questioning this methodology as he was not given an opportunity of hearing in compliance with the principles of natural justice. Since it provoked no response, these resolutions were sought to be assailed by Justice (Retd.) Katju in judicial proceedings before this Court. Since no aspect of privilege was invoked and it was an expression of the views of the Parliament falling within the domain of freedom of speech in Parliament, the petition was rejected. It is in that context that a distinction was made between the exercise of contempt or breach of privilege where action was sought to be initiated against a citizen,-whether a member or a non-member. The law has developed that the action of such citizen must have interfered with fundamental functioning of the House so as to enable the House to initiate any proceedings against the citizen. The earlier judgments inter alia in the case of MSM Sharma v. Dr. Shree Sri Krishna Sinha14, Raja Ram Pal15, Special Reference No. 1 of 1964 and Amarinder Singh17 were discussed to conclude that Chapter 20 of the Lok Sabha Rules 16 Supra note 12. entitled privileges and Rules 222 to 228 thereof deal with matters of privileges. Similarly Rules 187 to 203 of the Rajya Sabha Rules deal with issues concerning privileges. Thus, an inquiry would be along the lines submitted by the petitioner only if such a privilege action was proposed to be taken which was not so in that case. In the conspectus of the aforesaid legal principles, it was urged that the petitioners in the instant case being non-members could only be summoned if they had intruded upon any functions of the Assembly. Their non-appearance or unwillingness to participate in the debate in which they were compelled to participate did not in any manner disrupt the functioning of the Committee so as to face the consequences of breach of privilege. The Committee could always make its recommendations but the petitioners do not want to be part of it. There were no legislative functions to be performed and thus, the contention was that this was a case of expanding unbridled privileges in the garb of an amorphous set of rules to make an exception to the rule of law. As such, it was argued that the Terms of Reference had to be given a restrictive meaning. 29. Next, Mr. Salve sought to deal with the issue of judicial scrutiny of proceedings of the Assembly by seeking to canvas that there is no absolute bar on Courts to look into the validity of the proceedings of the Assembly. In the context of Article 212 of the Constitution read with relevant sections of the GNCTD Act, if proceedings adopted by the Assembly suffer from lack of jurisdiction or are illegal or unconstitutional, a challenge can be made before the competent court. Learned senior counsel relied upon judicial pronouncements in Special Reference No.1 of 196418, Raja Ram Pal v. Hon’ble Speaker, Lok Sabha & Ors.19 and Kalpana Mehta And Ors. vs Union of India And 30. In Special Reference No.1 of 196421 the dispute arose out of a conflict between the legislature and the judiciary, if one may say so, as a consequence of the power exercised by the U.P. Assembly in sentencing one Keshav Singh to be detained in a civil prison for a period of 7 days and the judiciary (Allahabad High Court) enlarging him on bail thereafter. This was taken as an affront by the legislature, which passed a 18 Supra note 12. resolution against the two concerned judges to be brought in custody before the House. A Full Bench of 28 judges consisting of the strength of the Court thereafter assembled to deal with the petitions filed by the two judges against this resolution. The bench restrained the Speaker from issuing a warrant against the judges and the Marshal of the House from executing the warrant. In order to resolve this confrontation, the President of India decided to exercise the power to make a reference to this Court under Art. 143(1) of the Constitution. The reference was on the important question of the exercise of powers, privileges and immunities of the State legislature vis-à-vis the power of the High Court and the Judges to discharge their duties. Suffice to say that the opinion rendered by the Court in the reference was that the powers conferred on the High Court under Article 226 of the Constitution and the authority of the Supreme Court under Article 32 of the Constitution are not subject to any restrictions. It could not be said that a citizen cannot move the High Court or the Supreme Court to invoke its jurisdiction, even in cases where fundamental rights have been violated. Once the judiciary was authorized to consider the validity of the actions of the legislature, it was opined that the judiciary cannot be prevented from scrutinizing the validity of the actions of the legislatures trespassing on the fundamental rights conferred on the citizens. 31. In Raja Ram Pal22 a private channel’s telecast based on a sting operation in the “cash for query case” where 10 Members of Parliament accepted money through middlemen to raise certain questions in the House resulted in an inquiry and subsequent expulsion of these members from the House. The members challenged the said expulsion. The three questions framed by the Supreme Court were all answered in the affirmative – (i) that the Supreme Court within our constitutional scheme has the jurisdiction to decide the content and scope of powers, privileges and immunities of the legislature and its members; (ii) the power and privileges of the legislature in India, in particular reference to Article 105 of the Constitution, includes the power of expulsion of its members; and (iii) in case of expulsion, the Supreme Court had jurisdiction to interfere to exercise such power and privileges. While rejecting the plea on expulsion, the Court expounded on the scope of such judicial review. Significantly, it was opined that though there would be a presumption that the Parliament would always perform its functions and exercise its 22 Supra note 15. powers within a reasonable manner, there could be no scope for a general rule that the exercise of power by the legislature was not amenable to judicial review. This would neither be in the letter nor the spirit of the Constitution. The touchstone, however, would not be that of an ordinary administrative action but the legislature could not be said to have the licence even to commit a jurisdictional error. 32. In Kalpana Mehta and Ors.23 a vaccination drive conducted by NGOs without the vaccine going through all the pre-requisite trials caused loss of life, resulting in a parliamentary standing committee being constituted to inquire into the matter. The report of the standing committee was sought to be relied on in a Public Interest Litigation dealing with the issue. The question which arose was whether such a report of a standing committee could be relied upon in the judicial review. The relevant observations for our purposes are the summary of conclusions which deal with the judicial review of such legislative action. It was opined that constitutional courts are not prevented from scrutinising the validity of the actions of the legislature trespassing on the fundamental rights conferred on the citizens. There could, thus, be no 23 Supra note 20. immunity to parliamentary proceedings under Article 105(3) of the Constitution though it was subject to the restriction contained in other constitutional provisions such as Article 122 or Article 212. The prohibition on the jurisdiction of the Court was restricted to the ground of irregularity of procedure but if the proceedings are tainted on account of substantive or gross illegality or unconstitutionality, there would be no protection against judicial scrutiny. 33. Finally, on the issue of privileges, Mr. Salve referred to the prevalent position in some other countries regarding the exercise of privilege powers. It was contended that such privilege powers could not be used to compel speech, more so when the organisation in question is an American corporation. We may notice at this stage itself that we really do not appreciate the second limb of this submission. When these corporations are working within the territory of our country and are subject to the jurisdiction of this Court, then what kind of special privilege would they have by reason of being an American corporation or a corporation incorporated in any other country! Now turning to the two enactments sought to be referred to by learned senior counsel – the first one is the Scotland Act, 1998, more specifically Section 23 and the Government of Wales Act, 2006, more specifically Section 37. We reproduce the relevant provisions as under: 23. Power to call for witnesses and documents (1)The Parliament may require any person— (a)to attend its proceedings for the purpose of giving evidence, (b)to produce documents in his custody or under his control, concerning any subject for which any member of the Scottish Executive has general responsibility. “Section 37 of the Government of Wales Act, 2006 (1) Subject as follows, the Assembly may require any person— (a) to attend Assembly proceedings for the purpose of giving (b) to produce for the purposes of the Assembly (or a committee of the Assembly or a sub-committee of such a committee) documents in the possession, or under the control, of the person, concerning any matter relevant to the exercise by the Welsh Ministers of any of their functions. 34. In the context of the aforesaid provisions, emphasis was laid on the expression “may” to submit that there is no element of compulsion. The second aspect emphasised was that, as these legislations suggest, privilege should relate to matters in connection with functions of the ministers. This in turn was sought to be linked with the argument that what the Committee was seeking to perform was not a core function of the Assembly and thus, cannot be said to be their function. Further, if only an opinion was being sought, as had been urged by the respondents, then it was submitted that oath could only be on a question of fact and not a matter of opinion. 35. Learned senior counsel also assailed the intent of the New Summons as only a subterfuge. Compelling experts to give an opinion in a democratic polity, it was argued, would be an “abhorrent proposition” as it could only be a voluntary act. As such, the act of Assembly it was stated, reeked of constitutional arrogance. In fact, what senior counsel sought to stress was that his submission was not challenging the exercise of privilege power but the very existence of the same. In this behalf it was stressed that the Assembly (the Committee being only a smaller group constituted) would have to reconcile with where their powers to summon originate from. Entry 39 of List II (Powers, privileges and immunities of the Legislative Assemblies) could not be a source of power of the Assembly and the scenario was rather of a statutory source of power emanating from Section 18 of the GNCTD Act, which was enacted in pursuance of Article 239AA (3)(a) and (3)(b) of the Constitution. Thus, a distinction was sought to be made between a power directly emanating from the Constitution and one flowing from a statutory provision. In the given facts, this was a case of the latter, which, it was urged would necessarily have to be tested on the touchstone of Part III of the Constitution. The relevant provisions are extracted hereinunder to 239AA. Special provisions with respect to Delhi.— (3) (a) Subject to the provisions of this Constitution, the Legislative Assembly shall have power to make laws for the whole or any part of the National Capital Territory with respect to any of the matters enumerated in the State List or in the Concurrent List in so far as any such matter is applicable to Union territories except matters with respect to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of that List in so far as they relate to the said Entries 1, 2 and 18. (b) Nothing in sub-clause (a) shall derogate from the powers of Parliament under this Constitution to make laws with respect to any matter for a Union territory or any part thereof.” 18. Powers, privileges, etc., of members.—(1) Subject to the provisions of this Act and to the rules and standing orders regulating the procedure of the Legislative Assembly, there shall be freedom of speech in the Legislative Assembly. (2) No member of the Legislative Assembly shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Assembly or any committee thereof and no person shall be so liable in respect of the publication by or under the authority of such Assembly of any report, paper, votes or proceedings. (3) In other respects, the powers, privileges and immunities of the Legislative Assembly and of the members and the committees thereof shall be such as are for the time being enjoyed by the House of the People and its members and committees. (4) The provisions of sub-sections (1), (2) and (3) shall apply in relation to persons who by virtue of this Act have the right to speak in, and otherwise to take part in the proceedings of, the Legislative Assembly or any committee thereof as they apply in relation to members of that Assembly.” 36. We may clarify at this stage that since the submissions were drawn in the context of certain questions raised, this latter submission really arises in the context of privilege powers vis-à-vis the constitutional provisions under Part III of the Constitution which are to be considered under a separate section. 37. It appears that the petitioners wanted to avail of the benefit of another senior counsel, possibly to further buttress their submissions and thus, Mr. Arvind Datar, learned senior counsel sought to address us next, on behalf of Petitioner No. 3, Facebook Inc. 38. Mr. Datar, in an endeavour to trace out the constitutional history, referred to the origin of powers and privileges by inviting our attention to Section 71 of the Government of India Act, 1935. It was stressed that the provincial legislatures had no powers but only privileges; they did not have powers to punish people under that Act. Next, in the context of Erskine May’s seminal commentary on Parliamentary Practices, it was pointed out that Chapter XI deals with powers and Chapter XII deals with privileges and immunities which are used interchangeably. 24 Power, however, remains, distinct. The primary power given to the House was to make laws or legislative powers. It is these powers from the Act of 1935, which are stated to have been adopted under Article 194(3) of the 24 Erskine May’s Treatise on the law, privileges, proceedings, and usage of Indian Constitution, which applies to the State Government and every 39. Learned senior counsel submitted that Delhi is different as it is on a special footing being categorised as a Union Territory in Article 239AA of the Constitution. Reiterating Mr. Salve’s argument, Mr. Datar stressed that the powers and privileges conferred on the Delhi Assembly are not derived from the Constitution but by reason of statutory enactments, i.e., Section 18 of the GNCTD Act. The privilege and powers of the Assembly are, thus, undoubtedly to be tested against Part III of the Constitution. These being statutory in nature, the aspect of constitutional balancing of powers with fundamental rights, as arose in In Special Reference No.1 of 1964 and MSM Sharma26 does not arise in the present case. The privilege here is a “derivative” from an Act of Parliament and not from any Constitutional provision. 40. We now turn to the submissions of the respondents on this issue, which were as vehemently argued. Dr. Singhvi, learned senior counsel 25 Supra note 12. seeking to address submissions on behalf of the Assembly, sketched out (i) The occasion to argue privilege has not even arisen and was premature as there was no actual notice of privilege. There was, thus, no factual matrix before the Court to analyse the exercise of the power and what was being sought by the petitioners qua the aspect of privilege amounted to seeking an advance ruling on the issue. (ii) Were the arguments of the petitioners to be accepted, it would have wide ramifications on the working of the committees across the nation both at the State as well as the Parliamentary levels. The argument of the petitioners, it was urged, had the propensity to destroy the system of committees which had been found historically to do yeoman work, possibly away from the more aggressive stances in the Parliament. (iii) The petitioners could not be conferred with the privilege to appear before the kind of committees they want to appear before. The petitioners admittedly had appeared on more than one occasion of a similar nature without any qualms. (iv) In the similar vein, the reference to the IT Act was premature as the Assembly was not debating any legislation of the issue but only discussing a particular aspect. (v) Arguments of the petitioners were premised on lack of mutual respect and difference between the organs of our democracy. (vi) Committee proceedings are House proceedings and the Supreme Court would normally never interfere with House proceedings and therefore also not with committee proceedings. 41. The obvious political divergence between Central Government and the State Government came out quite openly during the arguments where Dr. Singhvi sought to put forth the argument that the bold stand of the petitioners stood on a support base from the Central Government. The appearance before the Parliamentary Committee was sought to be justified by the petitioners as being based on commercial and operational reasons and not in view of any compulsion (an aspect disputed by learned Solicitor General on behalf of the Central Government). The petitioners, it was argued, were actually canvassing a case on absence of any commercial and operational consequences/compulsions rather than lack of jurisdiction. It was, however, fairly assured and rightly so, that the Assembly and the Committee were not oblivious to the constitutional exclusion of entries 1, 2 and 18 of List II and the respondent would never contend to encroach upon this constitutional demarcation. One aspect which Dr. Singhvi sought to emphasise, in our view not very convincingly, was that the issue of the press conference was an afterthought, raised by the petitioners to create prejudice. We say so as the press conference being held is not in doubt nor what transpired there. The only turn which Dr. Singhvi could seek to give to this is that what the Chairman of the Committee mentioned in the press conference were views of the persons who had deposed and not his own view per se. To say the least, we find this submission very difficult to accept and we will deal with it at the relevant stage. 42. The other aspect which Dr. Singhvi pointed out was the withdrawal of the Second Impugned Summons and the New Summons being issued, which no longer compelled Petitioner No.1 to appear before the Committee. However, this aspect has been labeled as a “subterfuge” by Mr. Salve, on account of the divergent views taken on the aspect of withdrawal by Dr. Singhvi and Dr. Dhavan– and surprisingly so. Consequently Dr. Singhvi will have to bear the burden of the cross for the 43. On the specific plea of privilege Dr. Singhvi commenced by seeking to establish that all committees of legislatures have the power to summon and compel attendance. Any power, without subsidiary powers to ensure implementation, it was urged, was akin to having no power at all. The power to compel attendance by initiating privilege proceedings is therefore, an essential power. The argument was further supplemented with the contention that the power of privileges was amorphous in common law and the Parliament has consciously not codified this area of law so that they can cater to unimagined situations in the future. 44. Dr. Singhvi, in fact, cautioned that this Court should not embark on the path suggested by Mr. Salve, who had argued that it was time that these privileges were codified. Dr. Singhvi urged this Court to not even opine on the necessity of codifying such privileges and that the same should be left to the Parliament, if they so desire without any nudge by 45. Dr. Singhvi sought to erase the distinction between the exercise of privilege powers under the Constitution and under the GNCTD Act by putting them on the same pedestal, urging that the two together provide for the scheme of operation. Learned senior counsel referred to provisions (7)(a) & (b) of Article 239AA in the context that the GNCTD Act was not to be deemed to be an amendment to the Constitution for purposes of Article 368 of the Constitution notwithstanding that it may contain any provision which amends or has the effect of amending the Constitution. The Assembly was, thus, submitted to be a privileged body with members enjoying freedom of speech in the House as well as freedom to vote and had all the privileges (under Section 18 of the GNCTD Act) as are enjoyed by Members of Parliament. It was thus urged that calling into question the proceedings of the Committee amounted to calling into question the proceedings of the Assembly in a court of law for which the powers were not vested. The regulation of the procedure of conduct of business was not subject to jurisdiction of the courts. In order to establish parity of the privilege powers, Dr. Singhvi drew the attention of the Court to Article 105 of the Constitution, Section 18 of the GNCTD Act coupled with Rule 172 of the Rules. 46. On this aspect, parity was sought to be drawn by relying on Parliamentary privileges in Entry 74 of List I and that of the Legislative Assembly in Entry 39 of List II which were stated to be pari materia. Delhi was no different, it was submitted, and thus the powers of the Assembly are the same under entry 39 of List II as any other Assembly in the context of Article 239AA of the Constitution. To further amplify this aspect, learned counsel sought to draw strength from the observations of this Court in State (NCT of Delhi) v. Union of India and Anr. 27 which comprehensively dealt with the segregation of powers between the State and the Central Government in view of an ongoing conflict on various issues in this behalf. It was opined by this Court that all entries in List II will have full play except three specific entries which were excluded, i.e. 47. In view of Article 239AA(3)(a) the power to summon and compel attendance was stated to be akin to that of any other legislative assembly. Testimonies before committees were stated to be mostly under oath and the rationale for the same was that the process was solemn in nature and that it would improve the quality of debate. There was stated to be no competing entry in List I and the question of repugnancy would only arise in terms of any entry in List III where there are central statutes in a given scenario. The committees of legislatures all over the country (including Delhi), thus, possess the power to compel attendance of witnesses as a part of their constitutionally recognized powers and privileges and there could be no distinction based on the kind of committee or the type of person who is summoned in exercise of these 48. We may note another submission of Dr. Singhvi where he cautioned the court against ruling in a manner wished for by the petitioners on account of its wider ramifications especially in the context of observations made in Kalpana Mehta And Ors.28on the importance of committees. Any hampering of the working of the committee would hamper the working of the Assembly as passing laws is not the only function of the Assembly. Thus, the practice of passing resolutions by Assemblies on the sense of the house would be disrupted. On the significance of the working of these committees, it is not necessary to go into depth as the issue has been well considered in Kalpana Mehta And 28 Supra note 20. Ors.29 We, thus, consider it appropriate to only extract some of the 66. Woodrow Wilson, the 28th President of the United States, was quoted as saying in 1885 that “it is not far from the truth to say that Congress in session is Congress on public exhibition, whilst Congress in its Committee rooms is Congress at work.” This is because most of the work of Congress was referred to committees for detailed review to inform debate on the floor of the House.” “70. The importance of Committees in today's democracy has “Committees may not be of much service in the more spectacular aspect of these democratic institutions, and they might not be of much use in shaping fundamental policy, or laying down basic principles of government. But they are absolutely indispensable for the detailed work of supervision and control of the administration. Not infrequently, do they carry out great pieces of constructive legislation of public economy. Investigation of a complicated social problem, prior to legislation, maybe and is frequently carried out by such legislative committees, the value of whose service cannot be exaggerated. They are useful for obtaining expert advice when the problem is a technical one involving several branches within an organization, or when experts are required to advise upon a highly technical problem definable within narrow limits. The provision of advice based on an inquiry involving the examination of witnesses is also a task suitable for a committee. The employment of small committees, chosen from the members of the House, for dealing with some of the items of the business of the House is not only convenience but is also in accordance with the established convention of Parliament. This procedure is particularly helpful in dealing with matters which, because of their 29 Supra note 20. special or technical nature, are better considered in detail by a committee of House. Besides expediting legislative business, committees serve other useful services. Service on these committees keeps the members adequately supplied with information, deepens their insight into affairs and steady their judgment, providing invaluable training to aspirants to office, and the general level of knowledge and ability in the legislature rises. Committees properly attuned to the spirit and forms parliamentary government can serve the country well as the eyes and ears and to some extent the brain of the legislature, the more so since the functions and fields of interest of the government increase day by day.” 49. Dr. Singhvi concluded by emphasising that not a single judicial precedent had been cited from our country or outside where the Court had intervened at the stage of summoning of a witness by the legislature (sub-committee). Reliance was placed on the judgment of the Madras High Court in C. Subramaniam v. The Speaker, Madras Legislative Assembly.30 In this case, on a speech being made by a former Member of the Madras Assembly a show-cause notice was issued by the Speaker of the Assembly as to why his conduct should not be treated as a breach of privilege. The endeavour to assail the notice was rejected by the Full Bench of the High Court, on the short ground that it was premature at that stage as no action had been taken. It was held to be akin to a writ of prohibition restraining the Speaker of the Legislative Assembly from proceeding further, which was virtually on the ground of absence of an ab initio jurisdiction. It was further opined that the power vested under Article 194(3) of the Constitution empowered the Speaker with the right to call upon a third party like the writ petitioner to show cause against an alleged breach of privilege by way of contempt. In the facts of the present case, it was urged, even a show cause notice had not been issued as the Petitioner had only been called upon to depose. Thus, there was not even an initiation of any privilege proceedings. 50. We now turn to the arguments of Dr. Rajeev Dhavan on behalf of the Committee which sought to intervene in the present proceedings. We may note at the threshold that the Committee is really a creation of the Assembly, but it appears that like the petitioners, the respondents wanted assistance of more than one counsel in the belief that it would further advance their case. In the process, as noticed above, some contradiction of stand came into being regarding the implication of the issuance of the New Summons and withdrawal of the old one. 51. Dr. Dhavan laid great emphasis on the main functions of the Committee as enunciated, taking a cue from its very description as a “Peace and Harmony Committee.” The main functions, thus, were to consider viewpoints across society about prevalence of such a situation which had the potential to disturb communal peace and harmony or where communal riots had occurred and to examine in detail and identify the factors responsible for it. This was coupled with the mandate to undertake scientific study on religious, linguistic, and social compositions of the population of Delhi NCR, with a view to identify and strengthen the factors which unite people despite their diversity. The Committee also sought to recommend measures to be undertaken by the government towards establishing communal harmony and peace in the State. We may note with some trepidation Dr. Dhavan’s submissions while seeking intervention that even if a writ was issued to the Assembly it could not be deemed to have been issued to the Committee because the Committee was an autonomous body which would eventually report to the Assembly and thus, enjoys a separate legal existence. Suffice for us to say at this stage that if the Committee is the creation of the Assembly and seeks to derive its powers and strength from the Assembly, it is surprising to note a submission that the -Committee would not be bound by a direction of this Court if it was not specifically made a party. Be that as it may, we did permit the Committee to intervene and to that extent there was no objection from Mr. Salve. 52. The initial rebuttal to the challenge is based on the anticipatory nature of the proceedings, being presumptive and pre-emptive. There are several stages of scrutiny before a breach of privilege notice is even issued; much less any conviction arising from such a breach of privilege. 53. It was further contended that no factual basis had been laid for the concerns regarding the First and Second Impugned Summons and the press conference. Fundamental rights could not be said to be violated by a mere issuance of summons. There was stated to be lack of specificity of any claim of mala fides which could not be general in character but must be specifically pleaded and proved by all material particulars in relation to the persons concerned.31 This was an aspect absent in the present case. Dr. Dhavan categorised the writ petition as a SLAPP (Strategic Lawsuit 31 State of Madhya Pradesh v. Nandlal Jaiswal (1986) 4 SCC 566; K. Nagraj v. State of Andhra Pradesh (1985) 1 SCC 523. Against Public Participation), engineered to silence the Committee and interfere with the democratic process. 54. Dr. Dhavan clarified the statements made by Mr. Raghav Chadha during the press conference on 31.08.2020 to contend that it was merely a summary of the complaints received by the Committee. They were stated not to represent the Chairman’s views, the Committee’s conclusions or the scope of the Committee’s functions. The Committee had not suo moto decided that the petitioners were responsible for causing disharmony. It had received complaints from several different people, who specifically attributed the disharmony caused by the riots in Delhi to Facebook. The statements made in the press conference were, thus, not made in bad faith and were simply repetitions of the depositions made to the effect that Facebook may have had a role in the riots. 55. The contention on the Committee’s Terms of Reference recommending criminal action was stated to be “toothless.” Thus, in a sense what was conceded was that the said part of the Committee’s Terms of Reference (i.e. in paragraph 4(vii)) was “otiose.” The Committee could, at best, make recommendations. Whether criminal action was, in fact, initiated was entirely the remit of the police or the judiciary and in that context no real threat was made to the petitioners either by the Terms of Reference or by the impromptu statements made by the Chairman in the press conference. 56. The aforesaid submissions, in our view, may have mollified the petitioners though apparently not Mr. Salve. As per his submissions, all the aspects would have to be read together to come to a conclusion whether the petitioners had a real concern to approach the Court or not. We say so in the context of the Terms of Reference which included recommending criminal action, the utterances of Mr. Raghav Chadha in the press conference (undoubtedly in the background of the depositions before the Committee) and the limitation on the legislative domain by carving out of certain entries from List II as applicable to the Assembly. We will pen down our view on this aspect at a later stage. 57. We now come to arguments of Dr. Dhavan that were in sync with what Dr. Singhvi had argued, i.e., in view of the judicial observations, these committees are the eyes and ears of the Parliament, essential for the democratic polity. The functions performed by the committees are part of the core legislative functions of State Assemblies, which may include (a) supervising administration, (b) taking evidence on legislation, and (c) dealing with a crisis or governance generally. In that context, Dr. Dhavan pointed out that the petitioners had not challenged the constitution of the Committee itself or its Terms of Reference. The petitioners had also not challenged the summons issued by the Parliament despite Parliament’s threat to initiate breach of privilege proceedings in case they refused to appear. As such, Facebook could not be said to have any issues while appearing before the Parliamentary Committee. The role of intermediaries in governance was relevant and the testimony of the petitioners was important in that context. The refusal was sought to be labeled down as one relating to “political reasons.” 58. Dr. Dhavan then turned to the aspect of the distinction drawn by Dr. Singhvi between members and non-members in the context of the legislature’s power to summon witnesses or initiate breach of privilege proceedings. He canvassed that no rule existed as per which non- members have the power to refuse a summons issued by a legislative committee. The core function of the legislature is democracy and not just to legislate, an aspect we agree with. Thus, it was the obligation of every person to cooperate with the legislature and appear when requested to assist in the realisation of this core function. There were several ways in which the legislature may seek democratic participation, one example was appearance before committees. 59. In support of the aforesaid plea, Dr. Dhavan illustrated the proposition by giving instances of notices issued to non-members which also form a subject matter of a treatise by Dr. Dhavan “Only the Good News: On the Law of the Press in India” published in 1987. Legislative Assembly) – Reprimand to person who questioned the partiality of Speaker. Bengal) – The West Bengal Legislature was maligned and the feature writer did not apologise but the editor did. (Karnataka) – An unrepentant editor of a newspaper reprimanded by the Legislature for accusations of harassing educational institutions. – An editor, who criticized the alleged leak of a budget by the Chief Minister, subject to imprisonment for a day. - Varsha Joshi and K.W. Deson (1982), (1982) XXVII P.D. (No.1) (Gujarat) – The threat to institute legal proceedings against a speaker for allowing discussion on sub judice matters caused the Committee to recommend imprisonment of a person.” 60. On the constitutional status of the Assembly, Dr. Dhavan sought to make a distinction between all Union Territories on the one hand, and Delhi and Puducherry on the other. A second distinction was made between the Delhi and the Puducherry Legislative Assemblies. The significant distinction was stated to be that while the Puducherry Legislative Assembly was created through an exercise of constituent power by the 69th Amendment Act, 1991. Thus, while Article 239AA excluded police power and public order from the scope of the Assembly’s competence, that did not detract from it being a full-fledged working Legislative Assembly similar to the Parliament. This aspect was stated to be reinforced by Sections 33 to 37 of the GNCTD Act. In Dr. Dhavan’s view, the powers of privilege of the Assembly could be traced to Article 239AA(2) & (7) of the Constitution, Section 18(3) of the GNCTD Act and Rules 160 and 172(4) of the Rules. Dr. Dhavan drew strength from Article 212(1) to canvas that the Constitution grants internal autonomy to each House of the State legislature and the validity of any proceedings cannot be questioned on an allegation of “irregularity of procedure.”32 There were conceded to be limitations to Article 212(1) of the Constitution and this Court had held that interference with the internal functioning of the State Legislative Assemblies can only be limited to cases of “gross illegality and unconstitutionality.” 33 No such illegality having occurred in this case and only a summons being issued, no proceedings for breach of privilege had been initiated and no question had been asked. As such there was no occasion whatsoever to call for interference by this Court. 61. Akin to Dr. Singhvi’s submission, Dr. Dhavan also emphasised on the sui generis nature of parliamentary powers and privileges and vehemently opposed the suggestion that these privileges needed to be codified. The powers and privileges of the legislature do not require a law and learned senior counsel sought to repel the argument of Mr. Salve that the amorphous nature of privileges offends the law and due process. It would not amount to claiming privilege as they want, as the Supreme Court has recognized a “Lakshman Rekha” to confine the extent and 32 Supra note 14. 33 Supra notes 12 and 15. exercise of their powers.34 There could be many other legal concepts that are similarly amorphous or in HLA Hart’s language “open textured.” This would not amount to ipso facto undermining the credibility of these concepts or reducing the importance of the meaning given to them by the Supreme Court. Thus, at this stage, the only question was whether a simpliciter issuance of summons from a sub-committee was constitutionally improper to which the answer should be in the negative. 62. The last set of arguments on this point by Mr. Tushar Mehta, learned Solicitor General of India, were in a limited contour. He supported learned counsel for the respondents on the power of the Parliament and Assemblies per se to summon but that would be subject to judicial review. However, his next submission was in sync with the submission of the petitioners that the Assembly lacks legislative competence to deal with the subject matter in question. That being his submission, it was felt that a complete argument on privilege was not required to be considered. In substance, his contention was that the summonses could not have been issued because of lack of legislative competence but if the Assembly had the legislative competence, then the 34 Supra note 12. principles as enunciated by learned counsel for the respondents were the correct principles. 63. We have dealt with the aspect of rival contentions arising from the privilege of the House to summon a person, to compel them to give evidence on matters of fact, and seek their opinion – which are the first two questions framed by Mr. Salve under the head of privileges as aforesaid. Having done so, we proceed to the third question dealing with the interesting aspect of privileges vis-à-vis an individual’s right to privacy and free speech. 64. We may at the threshold note that Mr. Salve had to deal with the aspect raised by the respondents on the petition being premature – both in the context of privilege per se and in the interaction between privileges and fundamental rights. 65. Mr. Salve strongly refuted the plea of the petition being premature on the basis of the summonses issued by the Committee where it was threatened that “necessary action” would be taken against the petitioners for breach of privilege if they do not appear. He submitted that even a threatened breach of fundamental rights is sufficient to invoke jurisdiction of this Court under Article 32 of the Constitution.35 Further elucidating on this aspect, Mr. Salve submitted that access to justice is a human right available where there is even a threat to personal liberties. 36 In that context, he stated that the Second Impugned Summons left no room for doubt that Respondent No. 2 was determined that the failure to appear would constitute a breach of privilege for which “necessary action” will be taken, which included the risk of arrest and imprisonment. This argument arose from the plea of Mr. Salve that the petitioner had a right to not appear and in the alternative a right to remain silent if he so 66. In view of the aforesaid fact and the plea that the summons itself was without jurisdiction, it was submitted that the threat of coercive action is itself without jurisdiction and a person need not wait for injury to occur before seeking the Court’s protection.37 Mr. Salve emphasised the importance of the observations made in S.M.D. Kiran Pasha v. Government of A.P. and Ors. , where the Court recognized that “if a 35 K.K. Kochunni v. State of Madras, AIR 1959 SC 725, at 729-730; D.A.V. College v. State of Punjab (1971) 2 SCC 261, at para 5; Anita Kushwaha v. Pushap Sudan (2016) 8 SCC 509, at para 42. 36 Tashi Dalek Gaming Solutions Ltd. v. State of Karnataka (2006) 1 SCC 442. 37 Chief of Army Staff v. Major Dharam Pal Kukrety (1985) 2 SCC 412. threatened invasion of a right is removed by restraining the potential violator from taking any steps towards violation, the rights remain protected and the compulsion against its violation is enforced.”38 Mr. Salve further relied on Bengal Immunity Co. Ltd. v. State of Bihar and Ors., wherein the Court observed “It is, therefore, not reasonable to expect the person served with such an order or notice to ignore it on the ground that it is illegal, for he can only do so at his own risk and peril.”39 The certainty of a legal proposition qua the right of a person was, thus, emphasised by this Court observing “a person placed in such a situation has the right to be told definitely by the proper legal authority exactly where he stands and what he may or may not do.”40 67. The plea raised by Mr. Salve is on the premise that even if a right of privilege validly accrued, the same would have to be narrowly construed and reconciled with the petitioner’s right under Part III of the Constitution . The First and Second Impugned Summons addressed to Petitioner No.1 explicitly stated that it was so addressed to him as the one “spearheading Facebook”, and thus, no option was left to Facebook to 38 (1990) 1 SCC 328, at para 14. 39 (1955) 2 SCR 603 at para 7. decide who would appear before the Committee. Of course, with the recall of the Second Impugned Summons and the issuance of the New Summons; this aspect urged before the recall of the first notice would not really survive. 68. Learned counsel, once again, took us to Article 194(3) of the Constitution to contend that it provided that privilege powers would, from time to time, be defined. The submission was that the Constitution makers had envisaged a clear ambit to be defined for privilege powers, which has unfortunately never happened. That is why, the plea has been made to the effect that either this Court defines the privilege power or direct/request the legislature to at least consider the issue of defining these privilege powers on the pari materia basis as in Scotland and Wales. In the context of the language of Article 194(3), it was submitted that only such privileges are available to legislatures that can be exercised without impinging on fundamental rights. 69. In the conspectus of this general proposition, it was urged that the summons issued to the petitioner violated his right to remain silent which was not limited to Article 20 (which was inapplicable by virtue of these not being criminal proceedings); but also implicit in his rights under Article 19(1)(a) and Article 21 of the Constitution. The right of personal autonomy has been held by this Court to include aspects of the choice between speaking and remaining silent.41 70. The summons per se, as per the submissions, were violative of the petitioner’s right against arbitrary State action under Articles 14, 19, and 21 of the Constitution. Learned counsel was conscious of the judgment of this Court in MSM Sharma42 and the view expressed therein about powers, privileges, and immunities available in terms of Articles 105(3) and 194(3) of the Constitution. The Court had taken the view that such powers, privileges, and immunities stood in the same position as Part III of the Constitution and that the fundamental right to free speech and expression under Article 19(1)(a) must yield to Article 194. Mr. Salve sought to distinguish this proposition in view of subsequent judicial developments. The principle propounded was submitted to have been eroded by subsequent constitutional developments as per which the right to free speech under Article 19 was to be seen as part of a trilogy of rights 41 Selvi and Ors. v. State of Karnataka (2010) 7 SCC 263; K.S. Puttaswamy and Anr. v. Union of India and Ors. (2017) 10 SCC 1; Excel Wear v. Union of India & 42 Supra note 14. along with Articles 14 and 21, and the rights no longer existed in silos. It was thus, his contention, that the fundamental proposition that privileges can override Article 19 but not Article 21 stood overruled in view of the judicial pronouncements in Maneka Gandhi v. Union of India43 and R.C. Cooper v. Union of India44. It would be relevant to reproduce para 6 of Maneka Gandhi45 as it traces the constitutional development in this regard through various judicial pronouncements as under: “6. We may at this stage consider the interrelation between Article 21 on the one hand and Articles 14 and 19 on the other. We have already pointed out that the view taken by the majority in A.K. Gopalan case [AIR 1950 SC 27 : 1950 SCR 88 : 51 Cri LJ 1383] was that so long as a law of preventive detention satisfies the requirements of Article 22, it would be within the terms of Article 21 and it would not be required to meet the challenge of Article 19. This view proceeded on the assumption that “certain articles in the Constitution exclusively deal with specific matters” and where the requirements of an article dealing with the particular matter in question are satisfied and there is no infringement of the fundamental right guaranteed by that article, no recourse can be had to a fundamental right conferred by another article. This doctrine of exclusivity was seriously questioned in R.C. Cooper case [(1970) 2 SCC 298 : (1971) 1 SCR 512] and it was over-ruled by a majority of the full Court, only Ray, J., as he then was, dissenting. The majority Judges held that though a law of preventive detention may pass the test of Article 22, it has yet to satisfy the requirements of other fundamental rights such as Article 45 Supra note 43. 71. We may note in the end an aspect which was raised in the writ petition, but not really contended on behalf of the petitioners: a similar question related to the interplay between the State Legislature’s privilege powers under Article 194(3) and a non-member’s fundamental rights was pending before a 7-Judge Bench of the Supreme Court in N. Ravi v. Legislative Assembly46 on account of a perceived conflict between MSM Sharma47 and Special Reference No.1 of 196448. Dr. Singhvi mentioned this issue only to distinguish and state that N. Ravi49 was a case that related to the conviction of a non-member which is not so in the facts of the present case. 72. Dr. Singhvi, on behalf of Respondent No.1, once again, at the threshold submitted that akin to the privileges issue, this issue is also premature as no coercive action has been taken against the petitioner and none was intended if the authorised representative fairly attended and participated in the proceedings as a witness. The transparency of the proceedings was sought to be emphasised as there was a live broadcast 47 Supra note 14. and therefore there could be no question of any apprehension in respect of the proceedings. 73. Learned counsel also sought to assail the maintainability of the writ petition because Petitioner Nos. 2 & 3 are not citizens of India and no shareholder had been impleaded as a petitioner. But then one must note that the initial summons was sent to Petitioner No.1, who is a citizen of India, albeit holding an office in Petitioner No.2 organisation. Subsequently, the summons issued to him was withdrawn and re-worded summons was issued. However, the parties had agreed to proceed on the basis of existing pleadings and questions raised. We are thus, not inclined at the threshold itself to look into this contention with any seriousness. 74. Insofar as the submission about the summons issued to Petitioner No.1 is concerned (even though summons was withdrawn), it was urged that a witness could not claim his right to remain silent or to be let alone in response to a summon to depose before a lawful committee of an empowered legislature. Such a right was not a fundamental right under Article 20 of the Constitution unless a person is an accused; as was the case in Selvi50 which involved rights of an accused in context of narco 50 Supra note 41. analysis and other tests. Petitioner No.1, and for that matter anyone who deposes, is not an accused. There is no conflict between Article 19(1)(a) of the Constitution and Rule 174 of the Rules. The right to remain silent is relevant only in criminal investigations. The proceedings before the Committee are not criminal or judicial proceedings. There is no accused before the Committee. All persons who appear before it are witnesses and subject to examination by the members as per the Rules of the House. These Rules have been made in exercise of the powers conferred under Section 33 of the GNCTD Act, which in turn draws its strength from Article 239AA(7) of the Constitution. Thus, it was submitted that the mere summons to give expert deposition before the Committee on the issues falling within the remit of the Committee cannot be said to be a violation of any fundamental rights so as to invoke Article 32 of the Constitution. We may note at this stage that the third issue we will deal with is the perceived remit of the Committee and whether the remit has the sanction of the Constitution in the context of division of subject matter under the three Lists of the 7th Schedule. 75. The distinction between members and non-members carved out by Mr. Salve was sought to be brushed aside by Dr. Singhvi by submitting that there was no such distinction as Article 105(4) uses the expression “in relation to persons”. The apprehension about self-incrimination was also urged to be misconceived in view of the constitutional protection envisaged under Article 105(2) of the Constitution. 76. Dr. Singhvi then engaged with the arguments of the petitioners regarding encroachment of fundamental rights, the submissions originally addressed by both parties being in the context of Petitioner No.1. In this regard, it was submitted that not even a prima facie case was established for the breach of any fundamental right. Petitioner No.1 had not been summoned to speak as a private individual but to speak on behalf of Petitioner No.2. Only a shareholder could have asserted the right on behalf of Petitioner Nos. 2 & 3, as they were corporate entities, because individuals’ rights are not to be subsumed in the company.51 77. We may note that surprisingly, Dr. Singhvi sought to urge that Petitioner No.1 has not been summoned to speak as a private individual but to speak for Petitioner No.2. We are saying this is surprising because the New Summons also permits any suitable officer to speak on behalf of 51 Supra note 44; Bennett Coleman & Ors. v. Union of India (1972) 2 SCC 788; Divisional Forest Officer v. Bishwanath Tea Co. Ltd. (1981) 3 SCC 238. Petitioner No. 2 and if a shareholder can urge a right under Article 32 of the Constitution, we fail to appreciate why an officer of a corporation to the extent he has been asked to speak cannot urge this aspect. The First and Second Impugned Summons were specifically addressed to Petitioner No.1 and only during the course of arguments, facing certain difficulties (which somehow Dr. Dhavan did not consider relevant) the initial summons was withdrawn and a new summons issued. 78. The more relevant submission is that in the context of Article 21, at this stage, only a summons to appear was issued and there was no question of restriction of personal liberty. The proceedings were not for breach of privilege. No coercive action was taken or was intended if Petitioner No.1 (or any other officer) merely appeared and assisted the Committee as a witness. On the issue of right to privacy under Article 21, it was urged that Article 21 itself would have to be read as confined to a person while a corporation has no personhood.52 79. The argument of Mr. Salve, based on the trilogy of rights under Articles 14, 19, and 21, was submitted by Dr. Singhvi to be out of context 52 Chiranjit Lal Chowdhury v. Union of India 1950 SCR 869; Petronet LNG Ltd. v. Indian Petronet Group and Anr. (2009) 158 DLT 759. in the present case as the Constitution sets clear parameters for the applicability of certain fundamental rights. Article 19 is still available only to citizens. Article 21 is available only to humans who are capable of having personhood and Article 19(1)(a) continues to be unavailable when legislative privilege is invoked especially if the legislatures are to function effectively. In that context it was urged that the ratio of the decisions in MSM Sharma53 and In Special Reference 1 of 196454 still hold good. On the right to remain silent, it was urged that this was not a right protected under Article 19(1)(a) of the Constitution as it was not a general right; and if at all this right had to be pleaded, it was to be before the legislature which had summoned Petitioner No. 1, and not before the Supreme Court. If silence is to be pleaded for a good reason in response to a specific question, that request should be dealt with by the Committee as per applicable rules. Reliance in the petition on the pending reference in N. Ravi55 would be of no avail to the petitioners as there has been no punishment for any breach so far, making the present case 53 Supra note 14. 80. Dr. Dhavan while advancing his case on behalf of the Committee sought to lift the corporate veil between Petitioner Nos. 1 & 2, as the true petitioner is Facebook and not Ajit Mohan. The purpose of the summons was to seek Facebook’s assistance regarding its role as a social media platform/intermediary in a situation like the Delhi riot, where persons had deposed before the Committee and pointed out the aggravation which had taken place because of platforms like Facebook. The summons had been issued to Facebook’s senior representative who could be of assistance and the summon itself had made it clear that this notice was issued to Facebook India, not to a specific individual: inasmuch as the notice was issued to Petitioner No.1 in his capacity as a representative of Facebook. Thus, it was contended that neither Article 32 nor Article 19(1)(a) of the Constitution were available to the petitioners as these rights do not extend to corporations. This was stated to be of significance as the petitioner had claimed the right against compelled speech under Article 19(1)(a) of the Constitution. As far as corporations are concerned, there are no personal liberties for corporations though they have certain 56 Supra notes 44 and 51. 81. Learned counsel took us through Article 194(3) to emphasise that it has two parts. The first part deals with privileges being enacted statutorily, while the second part states that until such a law is enacted, legislative privileges are frozen as they stood on 20.06.1979. A trilogy of pre-1979 cases authoritatively discussed which fundamental rights are attracted in relation to a breach of privilege. 57 MSM Sharma58 declared that the relevant portion of the Ganupati Keshavan Reddy59 was obiter and therefore not binding. Thus, it was submitted that the correct legal position regarding privileges and fundamental rights was laid down in MSM Sharma60 and Special Reference No. 1 of 1964 61; i.e., Article 19 of the Constitution does not apply to exercise of privileges under Article 194(3). The relevant portion of the judgment in MSM Sharma62 as part “27. .…Article 19(1)(a) and Art. 194(3) have to be reconciled and the only way of reconciling the same is to read Art. 19(1)(a) as subject to the latter part of Art. 194(3), just as Art. 31 has been read as subject to Art. 265 in the cases of Ramjilal v. Income-tax Officer, Mohindargarh (1) and Laxmanappa Hanumantappa v. 57 Ganupati Keshavan Reddy v. Nafisul Hasan AIR 1954 SC 636 (“the Blitz case”); Supra note 14 (“the Searchlight case”); Supra note 12 (“the Legislative Assembly 58 Supra note 14. Union of India (2), where this Court has held that Art. 31(1) has to be read as referring to deprivation of property otherwise than by way of taxation. In the light of the foregoing discussion, the observations in the Madhya Bharat case (3) relied on by the petitioner, cannot, with respect, be supported as correct. Our decision in Gunupati Keshavram Reddy v. Nafisul Hasan (4), also relied on by learned advocate for the petitioner, proceeded entirely on a concession of counsel and -cannot be regarded as a considered opinion on the subject. In our judgment the principle of harmonious construction must be adopted and so construed, the provisions of Art. 19(1)(a), which are general, must yield to Art. 194(1) and the latter part of its el. (3) which are special.” 82. Dr. Dhavan in sync with the arguments of Dr. Singhvi disputed Mr. Salve’s case that Articles 14, 19, & 21 of the Constitution were integrated by R. C. Cooper63 and Maneka Gandhi64 into one single right. He submitted that the effect of these cases was only to create India’s due process as far as constitutional limitations are concerned. Each of these rights have their own independent existence and correspondingly their own independent limitations. The golden triangle does not invalidate the cases ruling that Article 194(3) of the Constitution, though subject to Article 21, was not subject to Article 19 of the Constitution. The argument of Mr. Salve was, thus, pleaded to be overstated and 63 Supra note 44. 83. In the end it was contended that no fundamental right was violated by issuance of summons to the petitioner. 84. Suffice to say that so far as learned Solicitor General is concerned no specific arguments were addressed in this behalf except that he drew attention of this Court to N. Ravi65. 85. Elaborate submissions were addressed on the first three aspects by Mr. Salve even though one of the primary issues was whether it was more speculative in character and premature, as at this stage of the assailed proceedings only summons had been issued to the petitioners. The bedrock of Mr. Salve’s submissions was based on the alleged lack of legislative competence of the Assembly and consequently of the Committee to look into the subject matter qua which the notice had been issued to the petitioners. The submission, thus, was that in the absence of any such legislative competence, the petitioners were entitled to approach the Court at this stage itself rather than being compelled to wait for further progress in the proceedings. 65 Supra note 46. 86. There were three limbs of this submission. The first limb was in respect of the statutory enactments, i.e., the IT Act, enacted by the Parliament under List I, governs and regulates Facebook. This could not be an aspect with which the State Government was concerned. In fact, this was stated to be the reason why the petitioners had willingly cooperated and appeared before the Parliamentary Committee in the past. The second limb was based on the subject matter which the Committee wanted to go into, even though it had been specifically denuded of the power as those subject matters fall within the jurisdiction of the Central Government under Entry 31 (Communications) and under Article 239AA(3)(a) of the Constitution read with Entries 1 and 2 in List II (Public Order and Police). The third limb flowed from these two issues and is based on the unique status of Delhi. He argued that the constitutional scheme specifically took away certain subject matters which would normally fall in List II and would ordinarily be dealt with by a State Assembly. However, in Delhi’s case, these powers were conferred on the Central Government. 87. He then took us through the provisions of the IT Act to contend that it is undisputed that Facebook was an intermediary within the definition of the IT Act. Section 2(1)(w) of the IT Act defines “2(1). In this Act, unless the context requires otherwise, [(w) "intermediary", with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes;]” 88. In the context of the controversy sought to be raised as regards the role of intermediaries during such law and order problems, Mr. Salve contended that this aspect was covered by the power to issue directions to block public access to any information and was thus, squarely covered by Section 69A of the IT Act. 89. The aforesaid provision and its role was not a grey area in view of the judicial pronouncement of this Court in Shreya Singhal v. Union of India.66 Thus, a well-developed procedure to deal with such issues was already in place and consequently, the matter was an occupied field by 90. Another issue raised by Mr. Salve was that the legislative domains of “public order” and “police” both stood explicitly outside the competence of the Assembly. It was contended that recommendations in matters which fall within List I or which do not fall within List II cannot be said to be legislative functions. It was stressed that the purpose for which the summons was issued, and the issue sought to be addressed by the Committee were aspects of public order and therefore they were not primary functions of the Assembly. 91. The utterances in the press conference were pointed out to contend that it was amply clear that the purpose behind its exercise was to file a supplementary chargesheet which was alien to the powers of the 92. The endeavour of Respondent No.1 had been confirmed in the reply filed by the respondents to compel Petitioner No.1 to testify as an expert witness as part of its decision “to delve into the matter of concern raised in the complaints (about Facebook)”. The complaints, in turn, dealt with content allegedly posted on Facebook and how they contributed to the Delhi riots. By respondents’ own pleadings, the endeavour of compelling Petitioner No.1 to appear before it was in a. Examine testimonies relating to Facebook’s alleged role in the b. Examine instances of inaction/inability on the part of social media platform (Facebook) to enforce its policies against c. Seek views of Petitioner No.1 as a representative of Facebook to understand Facebook India’s internal policies and their implementation. d. Ascertain (Petitioners’) views on the question whether the said company’s platform has contributed to the Delhi riots and also how these platforms could be used to strengthen unity among the citizens of Delhi in the future. 93. Conscious of the line sought to be adopted by the respondents by referring to “Cooperative Federalism”, Mr. Salve contended that the same was misconceived as it arose in a factual matrix where the Union and the State exercise overlapping powers. The exercise of power by the Assembly in question had no connection with any such area of overlap. He argued that cooperative federalism cannot be converted into an independent head of power in addition to the powers conferred by the statute. In this regard reference was made to two judicial pronouncements in K. Lakshminarayan v. Union of India & Anr. 67 and State (NCT of Delhi) v. Union of India68. 94. In order to appreciate what is meant by “cooperative federalism” in the context of what appears to be a continuous judicial battle between the Central Government and the State Government has been enunciated in State (NCT of Delhi) (2018), where the Court encouraged walking hand- in-hand even if there are different political dispensations in power. We do believe and may note at this stage that such hope has been repeatedly belied! The enunciation of the principle is set out in para 119 as under:69 “119. Thus, the idea behind the concept of collaborative federalism is negotiation and coordination so as to iron out the differences which may arise between the Union and the State Governments in their respective pursuits of development. The Union Government and the State Governments should endeavour to address the common problems with the intention to 68 Supra note 27. 69 Supra note 27 at para 119. arrive at a solution by showing statesmanship, combined action and sincere cooperation. In collaborative federalism, the Union and the State Governments should express their readiness to achieve the common objective and work together for achieving it. In a functional Constitution, the authorities should exhibit sincere concern to avoid any conflict. This concept has to be borne in mind when both intend to rely on the constitutional provision as the source of authority. We are absolutely unequivocal that both the Centre and the States must work within their spheres and not think of any encroachment. But in the context of exercise of authority within their spheres, there should be perception of mature statesmanship so that the constitutionally bestowed responsibilities are shared by them. Such an approach requires continuous and seamless interaction between the Union and the State Governments. We may hasten to add that this idea of collaborative federalism would be more clear when we understand the very essence of the special status of NCT of Delhi and the power conferred on the Chief Minister and the Council of Ministers on the one hand and the Lieutenant Governor on the other by the Constitution.” 95. Thus, Mr. Salve contended that while the Court has touched on the concept of collaborative federalism, it has also simultaneously observed in “absolutely unequivocal” terms that both the Centre and the State have to work within their spheres and not think of any encroachment. It was, thus, contended that what was sought to be done was clearly an encroachment by relying on the larger principle of cooperative 96. An important aspect has, once again, been emphasized in K. Lakshminarayan70, that the Assembly can seek to exercise power as conferred under the GNCTD Act, promulgated by the Parliament exercising its residuary powers under Entry 74 of List I. In that context it was emphasised that there is a difference between Articles 239A and 239AA of the Constitution. The former is with respect to the Union Territory of Puducherry, which simply provided purely enabling provisions while the latter contained extensive provisions among which sub-clause (7) empowered the Parliament to legislate and give effect to all the provisions. Mr. Salve assailed the endeavour of the Assembly to “clutch at a jurisdiction that is not available”. 97. In response to the Court’s queries arising from the earlier summons being superseded by the New Summons, the respondents’ contention that the aspect of privilege had not arisen, and whether the petitioners could claim to be an unaccountable platform; Mr. Salve contended that the petitioners were ready to comply with any Indian law and had been doing so. What they were not desirous of doing was to be drawn into an aspect of political divide. To emphasise this point he referred to a letter dated 70 Supra note 67. 01.09.2020 by the Union Communication Minister alleging inter alia that Facebook India was leading a concerted effort to shrink the space for dialogue for those with a right-of-centre ideology. It was, thus, submitted that on the one hand the respondents seem to allege that there was a pro- Government or a pro-right bias of Facebook while the Central Government claimed the opposite – the common factor being that both positions were for their respective political reasons by alleging bias against the petitioners albeit from different sides. Mr. Salve’s contention was that an Assembly must limit itself to its core function of legislation. Even if it were to summon a witness, this must be in relation to matters that were within its ambit as demarcated by the Court in the judgment of State (NCT of Delhi) v. Union of India 71. This judgment made it clear that in reference to the Code of Criminal Procedure, 1973, the powers in relation to the Entry of public order were conferred on the Parliament and consequently denuded from the powers of the Assembly. In that context, even if the widest amplitude was given to the Entries, that was with the objective of not restricting the legislative competence of the Parliament or the Assembly in a field which they in principle were competent to 71 Supra note 27 and Govt. of NCT of Delhi v. Union of India 2020 12 SCC 259. legislate. In the present case, one was concerned with the powers of the Central Government vis-à-vis the State Government and therefore the principle of widest meaning of entries could not result in overlapping powers as that can hardly be conducive to administrative exigencies. That it was so was obvious from the submission of the learned Solicitor General who contended that the doctrine of pith and substance would have to be applied to the reading of the entries while dealing with them to demarcate the ‘Lakshman Rekha’ for the Parliament and the State Assemblies. In the context of the controversy, it was urged, that allowing such wide reading of entries would lead to a slippery slope. 98. In the end, Mr. Salve also emphasised the ‘doublespeak’ between the stand of the counsel for the Assembly and the Committee; which was a telltale sign that the New Summons was only subterfuge to get over the possibility or anticipation of an adverse judicial consideration. The right to remain silent was a virtuous right and in today’s noisy times, should not be curbed or abrogated. 99. Mr. Datar, learned senior counsel for Petitioner No.3, once again, supporting the stand of Mr. Salve sought to urge that any powers or privileges were in turn circumscribed by the legislative competence of the Assembly. Thus, any powers or privileges have to be exercised within the assigned legislative fields. He sought to draw strength from May’s Commentary as also the Commentary of Kaul and Shakdher in this context where it was observed in the former “Disobedience to the order of a committee made within its authority is a contempt of the House.” (emphasis supplied).72 In the latter it was observed “Disobedience to the orders of a Committee of the House is treated as a contempt of the House itself, provided the order disobeyed is within the scope of the Committee’s authority…” (emphasis supplied).73 Learned counsel thereafter turned to the judicial precedents in this regard.74 100. He submitted that the powers and privileges are controlled by the basic concepts of the written Constitution which could be exercised within the legislative fields allotted to their jurisdiction by the three lists under the 7th Schedule; and the legislatures were not competent to travel 101. It was, thus, contended that if a primary legislation can be struck down for being outside the legislative domain, then a committee cannot 72 Supra note 24 at para 38.57. 73 M. N. Kaul and S. L. Shakhder, Practice and Procedure of Parliament , 303 (A. 74 Supra notes 9 and 15. 75 Supra note 20. be formed to deal with such matters. Thus, it was argued that the respondents could not say that they had the power to go into a roving and fishing inquiry before the Committee relating to all perceived fields based on a belief that the State Assembly deals with the core functions in Delhi. Its legislative competence by various entries should not be read in such an expansive manner as to not be restricted by specific exclusions, at least for the purposes of discussion. 102. Mr. Datar then turned to judicial precedents from the United States to analyse the similar federal structure of governance in both India and USA. The cases dealt with enquires by the Congress. 103. In Watkins v. United States76 it was observed that “no enquiry is an end in itself, it must be related to a legitimate task of Congress.” Thus, academic enquiries cannot be undertaken – it is only what is within the powers of the Congress that can be enquired into. “Broad is the power of inquiry, but not unlimited.”77 Such power of enquiry of the Congress is limited to its “legitimate tasks”, which would imply legislative competence in the present case. 76 354 US 178 (1957) at pg. 187. 104. We may note at this stage that a plea was advanced by Dr. Dhavan that this judgment stood overruled in Barenblatt v. United States78 and Eastland v. United States Servicemen’s Fund79. Mr. Datar clarified that the aspect he was seeking to rely upon the judgment for was not only not overruled, but there was confirmation on the limits on the power of inquiry of the Congress as laid down in Watkins80. 105. He next referred to the judgment in Howard Jarvis Taxpayers Association v. Padilla81 for the observation that the legislature may not use its powers to “defeat or materially impair” the exercise of its fellow branches’ constitutional functions, nor “intrude upon a core zone” of another branch’s authority. The investigative powers may not be used to trench upon matters falling outside the legislative purview and the investigative power permits inquiry only into those subjects in reference to which the legislature has power to act. 106. In the context of the requirement of reading of entries widely, Mr. Datar contended that the power to legislate conferred by Article 239AA(3)(a) was in respect of matters in List II except Entries 1, 2 & 18. 78 360 US 109 (1959) at pg. 111-112. 79 421 US 491 (1975) at pg. 504. 80 Supra note 76. 81 62 Cali 486 (2016) at pg. 499. If the principle of reading entries widely is to be applied in this context, even the excluded entries have to be read widely as conferring the power on the Parliament. It could not be said that entries conferring power on the State Assembly were to be read widely while at the same time a restrictive meaning was to be given to entries under which powers have been specifically excluded. The phraseology “with respect to” entails that the entries encompass anything with a nexus to public order and/or the police. The powers with respect to such activities, thus, squarely lie with the Parliament. Once again, a judicial view already taken was clear and explicit, i.e., that the Assembly did not have any power – legislative or executive, over the police and its functions. 82 Thus, exempted entries would have to be read in substance and not hyper-technically, and Article 239AA would have to be read contextually as also widely to include all ancillary and subsidiary matters. This in turn denuded the Assembly and the Committee of the powers to legislate or enquire into that aspect. As such, what has been specifically denied to the Assembly could not be achieved through Committees under the garb of “peace and harmony.” The Assembly had no jurisdiction to address violence and communal 82 Govt. of NCT of Delhi v. Union of India 2020 12 SCC 259. riots, if Entries 1 & 2 of List II are interpreted as submitted. In the end there could be no power even to investigate these matters. 107. The Committee, it was argued, was a creation of the Assembly and could not have a larger jurisdiction than the Assembly itself. The Bulletin issued on 02.03.2020 suggested that the Committee was formed to deal with matters falling in Entries 1 & 2 of List II while stating this to be “in view of the recent communal riots and violence….”. This made it amply clear that the Committee was meant to deal with the violence and disturbance caused to public order during the riots. The expression “public order” has to be interpreted broadly and would encompass communal peace and harmony. The summons issued by the Committee related to the law and order situation of Delhi for which the Assembly had no power to investigate or formulate law. If there was no competence with regard to such matters, the summons in that context would be without jurisdiction and, thus, void ab initio. 108. Since cooperative federalism was propagated as the basis to justify the constitutionality of the actions of the respondents, it was submitted that the same would not amount to a license to place reliance on Entries 1 & 2 of List III to sidestep the explicit exclusion in Article 239AA(3)(a) of the Constitution. The relevant Entries are as under: 1. Criminal law, including all matters included in the Indian Penal Code at the commencement of this Constitution but excluding offences against laws with respect to any of the matters specified in List I or List II and excluding the use of naval, military or air forces or any other armed forces of the Union in aid of the civil power. 2. Criminal procedure, including all matters included in the Code of Criminal Procedure at the commencement of this Constitution.” 109. The matters relating to criminal law would not include power to legislate on issues pertaining to public order and communal peace and harmony as the same is traceable to “public order”, if the latter is to be interpreted broadly. 110. Mr. Datar further argued that Entry 45 of List III, which relates to inquiries, cannot enable the Assembly to inquire into public order, police functions or communications. The power of inquiry has to be directly related to the legitimate subjects over which the Assembly has powers to legislate. To buttress his argument on the concept of collaborative federalism, Mr. Datar relied upon the observations of this Court in State (NCT of Delhi) v. Union of India 83 which held that “both the Centre and the States must work within their spheres and not think of any 111. Mr. Datar argued that obviously the Central Government and the State Government had different perceptions as to what transpired in Delhi and it can hardly be disputed that it was a law and order issue arising from communal riots. This was not an aspect that either the Assembly or any of its committees could deal with. If the Assembly cannot legislate on a subject, it cannot explore the same under an executive investigation. The mere reluctance to participate could not be threatened with a breach of privilege and the subject matter being dealt with by the Committee was outside the purview and power of the Assembly. 112. Mr. Datar emphasised that the role of Facebook was of an intermediary and, thus, the relevant regulatory mechanism was under the IT Act. He went as far as to contend that there was no jurisdiction to examine Facebook, as its operations were covered by Entry 31, List I, under “other forms of communication”. Since the Parliament has overriding power to legislate with respect to entries in List I under Article 83 Supra note 27. 246(1) of the Constitution, the Assembly could not intervene in matters relating to intermediaries/other forms of communication. In addition, it was urged that this special entry of “communication” overrides the general entries of “inquiries” and “criminal law” (List III), which the Delhi Assembly had attempted to rely on.84 113. Learned counsel next turned to Section 79 of the IT Act which deals with exemption from liability of intermediaries in certain cases. 114. Mr. Datar finally urged that an intermediary like Facebook has no control over the content hosted on it and is in fact, prohibited from knowing the substance of the content on their platform or exercising any control over the same except as prescribed by law. It was, thus, submitted that an intermediary cannot be held liable for any third party data/information made available/hosted by them. Facebook was simply a platform where messages are transferred from one person to the other. Whatsapp, Signal, Telegram are even end-to-end encrypted. These are intermediaries who are not liable for third party information hosted on them. The only obligation which Section 79 of the IT Act imposes is that of due diligence on the part of intermediaries as Facebook did not initiate 84 Kerala State Electricity Board v. The Indian Aluminium Co. Ltd. (1976) 1 SCC the transmissions, nor controlled the same. Hence, they cannot be held liable and any action taken against intermediary has to be in the manner prescribed by the Act.85 It was stated that the New Summons did not change the position in any way as the content of the inquiry was the 115. Dr. Singhvi, seeking to rebut the arguments canvassed on behalf of the petitioners sought to emphasise that it is not appropriate to equate the expression “peace and harmony” with “law and order” as the former was a much broader term. In any case, Legislative Assemblies have wide inquisitorial powers,86 i.e. areas which are otherwise not available to a legislature for legislative interference are still available to a committee of the legislature. The relevant para from Kalpana Mehta reads as under: “335. Various committees of both Rajya Sabha and Lok Sabha are entrusted with enormous duties and responsibilities in reference to the functions of the Parliament. Maitland in 'Constitutional History of England' while referring to the committees of the Houses of British Parliament noticed the functions of the committees in the following “...Then again by means of committees the Houses now exercise what we may call an inquisitorial power. If anything is going wrong in public affairs a committee may be appointed to investigate the matter; witnesses can be summoned to give evidence on oath, and if they will 85 Supra note 66. not testify they can be committed for contempt. All manner of subjects concerning the public have of late been investigated by parliamentary commissions; thus information is obtained which may be used as a basis for legislation or for the recommendation of administrative reforms.” 116. This was stated to be in furtherance of the legislative competence of an Assembly and in exercise of the Committee’s inquisitorial powers to make the best possible recommendations. 117. Dr. Singhvi contended that selective extracts of the press conference cannot be the basis for giving a different meaning to the proceedings than the Terms of Reference. He sought to clarify that the scope of the Committee was purely recommendatory, including making positive recommendations to ensure peace and harmony in the NCT of Delhi in the future which relates to various heads of competence of the Assembly in List II and List III of the 7th Schedule. No federal unit can function in the absence of peace and harmony amongst various groups of people who reside, live and work in that federal unit. Thus, the domain of peace and harmony in the NCT of Delhi is something very broad and inherent to the legislature of the federal unit and encompasses within it many areas of competence of the Assembly both in List II and List III. It was further contended that “fraternity” is a preambular value which, like equality and liberty, imbues the functioning of the entire Constitution. He referred to Entry 39 of List II relating to “Powers, privileges and immunities of Legislative Assembly” to emphasise that enforcement of attendance of persons for giving evidence or producing documents before committees of the Legislature of the State was an intrinsic part of its functions. This coupled with Entry 45 of List III dealing with Inquiries and Statistics for the purposes of any of the matters specified in List II or List III would completely cover the aspects sought to be gone into by the 118. Dr. Singhvi, in support of the manner in which such committees can function and their remit, referred to three judicial pronouncements from the United States: (i) Eastland v. The United States Servicemen’s Fund87, (ii) Watkins v. United States88 and (iii) Barenblatt v. United States89. The common thread which permeates these judgments is that the power to investigate is inherent in the power to make law as a legislative body cannot legislate wisely or effectively in the absence of information with respect to the conditions that the legislation is intended 87 Supra note 79. to affect or change. In that context, the issuance of subpoenas could be exercised by a committee acting on behalf of the House. It was thus said: “To conclude that the power of inquiry is other than an integral part of the legislative process would be a miserly reading of the Speech or Debate Clause is derogation of the integrity of the legislature.”90 119. Such an inquiry was not in turn circumscribed by what the end result would be: “Nor is the legitimacy of a congressional inquiry to be defined by what it produces.” 91 Such investigative function was akin to any research with the possibility of researchers ending up in some “blind alleys” and into non-productive enterprises, as “to be a valid legislative inquiry there need be no predictable end result.” 92 120. On the duty of a citizen to cooperate with US Congress in an effort to obtain the facts, it was held to be an “unremitting obligation to respond to subpoenas, to respect the dignity of the Congress and its committees and to testify full with respect to matters within the province 90 Supra note 79. 121. On an aspect of teaching which is pursued in educational institutions, it was observed that inquiries cannot be made into a constitutional protection against the freedom to teach. But this would not preclude the Congress from interrogating a witness merely because he is a teacher. Thus, “an educational institution is not a constitutional sanctuary from inquiry into matters that may otherwise be within the constitutional legislative domain merely for the reason that inquiry is 122. Dr. Singhvi submitted that it was inappropriate for the petitioners to link the competence to discuss the subject matter with the powers to exercise privilege. The Terms of Reference that define the scope and competence not having been challenged, it was submitted that it was not appropriate for the petitioners to invite a view of this Court on the competence of the Committee. The argument about excluded Entries was labeled as a “smokescreen”. In the context of the claim of exclusion arising from Entries it was submitted that any such exclusion would have 94 Supra note 78. 95 Synthetics and Chemicals Ltd. v. State of U.P. (1990) 1 SCC 109. 123. Dr. Dhavan adopted the same line of argument as Dr. Singhvi, referring to the same judicial pronouncements. He submitted that the holding in Watkins96 was based on Chief Justice Warren’s exclamatory resentment of McCarthyism in the 1950s and has since been criticized as unnecessarily limiting the powers of Congress. On the same lines were the subsequent judgments of the Supreme Court which settled major issues of congressional authorisation and relevance of the first amendment.97 The view taken thereafter by the US Supreme Court reinforces powers of the Committee rather than undermines them. 98 The essence of American Law, he contended, is that when you are summoned, you must appear but can plead the fifth amendment in not answering 124. Dr. Dhavan proceeded with his arguments on a larger canvas that the Delhi Government was empowered to cover every aspect of its governance, and peace and harmony could not be equated solely with police functions and public order. The argument can be said to be on four different planes: (i) harmonious interpretation of entries; (ii) the ragbag 96 Supra note 76. 97 Wilkinson v. United States 365 US 399 (1961); Braden v. United States 365 US 98 Supra note 79. approach; (iii) wide scope of inquiries under Entry 45 of List III; and (iv) executive power must be interpreted widely. The emphasis of Dr. Dhavan’s argument was that communal harmony is an important part of Delhi’s governance that goes beyond the limited remit of police functions and public order. The incident of February, 2020 in Delhi was stated to prove that in addition to affecting public order, communal disharmony has a harmful effect on trade and commerce, transportation, education and governance generally. Considering the implication of these domains, it was contended that it would be deeply harmful if the police were the sole custodians of peace and harmony. The initial course of action requires people to be educated and that governing authorities liaise with them in order to calm tensions. To agree to the submissions of the petitioners would be to permit the argument that there was none in the Delhi Government who could address the issue of peace and harmony. On a larger canvas, the message that would permeate to non-members would be that they could get away by not appearing before the Legislative Assemblies, as the latter had no power to compel their appearance. It was submitted that this would make the entire system of Committee proceedings farcical. The need for harmonious construction required that legislative entries must be given the widest amplitude and, thus, he submitted that it was the duty of the Court to reconcile entries that may appear to overlap or may be in direct conflict.99 125. Dr. Dhavan sought to introduce the concept of ragbag legislation, submitting that this was an expression used by the Indian Supreme Court in income tax jurisprudence.100 The ragbag approach suggested that legislative and executive powers need not be traced to only one entry, but may instead be traced to multiple entries in the relevant list in the 7 th Schedule. Thus, this perspective of multiple entries may empower the Committee to consider peace and harmony – some that were directly applicable like education, and others that applied indirectly like trade and commerce. Peace and harmony was a concept much beyond public order and police, and illustrations of the same were given from List II and List III. The relevant portions of List II and List III as given in the 7 th 5. Local government, that is to say, the constitution and powers of municipal corporations, improvement trusts, districts boards, mining settlement authorities and other 99 Jilubhai Nanbhai v. State of Gujarat (1995) Supp. 1 SCC 596. 100 Ujagar Prints (II) v. Union of India (1989) 3 SCC 488. local authorities for the purpose of local self-government or village administration. 6. Public health and sanitation; hospitals and dispensaries. 7. Pilgrimages, other than pilgrimages to places outside 10. Burials and burial grounds; cremations and cremation 12. Libraries, museums and other similar institutions controlled or financed by the State; ancient and historical monuments and records other than those [declared by or under law made by Parliament] to be of national importance. 13. Communications, that is to say, roads, bridges, ferries, and other means of communication not specified in List I; municipal tramways; ropeways; inland waterways and traffic thereon subject to the provisions of List I and List III with regard to such waterways; vehicles other than mechanically propelled vehicles. 17. Water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power subject to the provisions of entry 56 of List I. 22. Courts of wards subject to the provisions of entry 34 of List I; encumbered and attached estates. 24. Industries subject to the provisions of [entries 7 and 52] 26. Trade and commerce within the State subject to the provisions of entry 33 of List III. 27. Production, supply and distribution of goods subject to the provisions of entry 33 of List III. 28. Markets and fairs. 32. Incorporation, regulation and winding up of corporations, other than those specified in List I, and universities; unincorporated trading, literary, scientific, religious and other societies and associations; co-operative 35. Works, lands and buildings vested in or in the possession of the State. 37. Elections to the Legislature of the State subject to the provisions of any law made by Parliament. 39. Powers, privileges and immunities of the Legislative Assembly and of the members and the committees thereof, and, if there is a Legislative Council, of that Council and of the members and the committees thereof; enforcement of attendance of persons for giving evidence or producing documents before committees of the Legislature of the State. 65. Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List.” 1. Criminal law, including all matters included in the Indian Penal Code at the commencement of this Constitution but excluding offences against laws with respect to any of the matters specified in List I or List II and excluding the use of naval, military or air forces or any other armed forces of the Union in aid of the civil power. 3. Preventive detention for reasons connected with the security of a State, the maintenance of public order, or the maintenance of supplies and services essential to the community; persons subjected to such detention. 8. Actionable wrongs. 12. Evidence and oaths; recognition of laws, public acts and records, and judicial proceedings. 15. Vagrancy; nomadic and migratory tribes. 16. Lunacy and mental deficiency, including places for the reception or treatment of lunatics and mental deficients. 20. Economic and social planning. 23. Social security and social insurance; employment and 25. Education, including technical education, medical education and universities, subject to the provisions of entries 63, 64, 65 and 66 of List I; vocational and technical training of labour. 28. Charities and charitable institutions, charitable and religious endowments and religious institutions. 33. Trade and commerce in, and the production, supply and (a) the products of any industry where the control of such industry by the Union is declared by Parliament by law to be expedient in the public interest, and imported goods of the (b) foodstuffs, including edible oilseeds and oils; (c) cattle fodder, including oilcakes and other concentrates; (d) raw cotton, whether ginned or unginned, and cotton seed; (e) raw jute. 39. Newspapers, books and printing presses. 40. Archaeological sites and remains other than those [declared by or under law made by Parliament] to be of national importance. 45. Inquiries and statistics for the purposes of any of the matters specified in List II or List III.” 126. Dr. Dhavan further submitted that the constitutional obligation to take preventive action to ensure non-discrimination provided for the Government’s duty to examine and recommend action in respect of peace and harmony as also to protect religion, cultural rights and dignity of individuals as envisaged in various constitutional provisions, i.e., Articles 14, 15, 16, 17, 21, 25 to 30, 39A, 39(b), 40, 41, 46 and 47. These provisions are really an amalgam of fundamental rights and directive principles of state policy. Considerable emphasis was placed by Dr. Dhavan on Entry 45 in List III, which is a self-standing entry that has been given the widest amplitude by this Court. 101 This entry deals with the executive power to make committees of inquiry. In that context it has been observed that these inquiries would encompass any matter enumerated in any of the Lists and would not be confined to those matters as mere heads of legislative topics – extending the inquiries into collateral matters. Further referring to Entry 39 of List II, Dr. Dhavan 101 Sriram Krishna Dalmia v. Justice Tendolkar 1959 SCR 279 at pgs. 289, 291. urged that this entry was wide enough from a bare reading to include the power to summon non-members having used the expression of “enforcement of attendance of persons”. 127. The thread which permeated Dr. Dhavan’s arguments was that the task of governance is much wider than merely drafting legislation and executing it. Executive power would collapse if it were to be reduced to simply executing the laws enacted by the Legislature and, thus, the Supreme Court had explained that executive power without law had to be 128. After having dealt with the four aspects referred to aforesaid, Dr. Dhavan sought to respond to Mr. Salve’s argument of the legislative domain being occupied by the IT Act. It was Dr. Dhavan’s submission that the IT Act was an example of “cooperative federalism” as the Act empowered both the State and the Centre in terms of the definition of “appropriate government” in Section 2(e). Thus, provisions such as Section 6 and 69 of the IT Act could refer to either the Centre or the State and the legislative domain could not be said to be exclusively occupied by the Centre. This is more so in the context of a mere summons that 102 Rai Sahib Ram Jawaya Kapur v. State of Punjab (1955) 2 SCR 225. required the petitioner’s appearance without reaching the stage at which punitive action may be considered. The Committee was submitted not to be engaged in any inquisitorial exercise but was only limited to aid in the spirit of cooperative federalism. 129. Cooperative federalism was contended not to be a source of power but rather a part of the principles that underlie the Constitution. It was a method of communication that makes federalism more effective requiring both Centre and State to work together to address common problems. Thus, the State could not exist without collaborative or cooperative federalism.103 This was stated to be of even greater significance in light of the tug of war between the Centre and the State in respect of the unique position of the Delhi Legislative Assembly. As such, peace and harmony issues ought to be resolved by a coordinated effort. He did, of course, concede that the history of two governments was testament to a tussle which was closer to being competitive rather than collaborative. 130. Dr. Dhavan, thus, concluded his arguments by submitting on this 103 Supra note 27. (a) it was not his contention that conventions and broad concepts (b) underlying principles, however, are fundamental to both interpretation of the Constitution and powers exercised through the (c) a recommendatory committee has a duty to inform the Central Government of the problems it encounters so that organs of Government can act in furtherance of this principle of cooperative (d) the Committee by itself did not claim the power to punish the breach though it does possess the power to summon without penal consequences. It could at best make a recommendation which would have to be examined by the House through the process of a privileges committee. This was a routine part of every summon, only indicative of the power of the Parliament/Assembly. 131. Mr.Tushar Mehta, learned Solicitor General sought to advance submissions substantially on this aspect as there was a conflict in the stands taken by the State and the Central Government on this issue. As noticed earlier – while on the one hand he was with the State Government on the issue of the right to summon per se, a difference arose on account of his argument that in the given factual situation, the power to summon vested solely with the Central Government. Mr. Mehta referred to Article 212 of the Constitution, which reads as under: “212. Courts not to inquire into proceedings of the (1) The validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure. (2) No officer or member of the Legislature of a State in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers.” 132. It was his submission that proper effect should be given to the above provision and the Court did not really have the power to deal with the functioning/internal administration of the Parliament/Assemblies and the committees thereof. There was, however, a narrow scope of judicial review permitted in the present case as the person involved was not a member of the House. The enquiry being ultra vires the powers conferred on the Assembly, he contended that the subjects specifically excluded by the Constitution could not be surreptitiously brought within the purview of the Assembly by categorising the issue as “peace and harmony.” It was intrinsically a law and order issue, which was an occupied field and also an excluded field so far as the Assembly was 133. While accepting that privilege was necessarily connected with legislative power, the same (if the aspect so arose) would have to be considered in the context of legislative competence. The plenary powers of the legislature were circumscribed by the written Constitution which set out the legislative fields allotted to each of their jurisdictions by the three Lists in the 7th Schedule putting an embargo on the Legislatures to travel beyond the entries in their respective lists.104 134. Learned Solicitor General sought to emphasise on the unique case of Delhi with reference to its excluded entries. It was not at par with any other State Assembly. Delhi was the national capital and thus, the law makers had consciously made a provision keeping this larger picture in mind and reserving to the Parliament three entries which would otherwise be available in List II to the State Assemblies. In the absence of legislative competence, it would be a colourable exercise of power to engage in the subject matter. The formation of a “peace and harmony” 104 Supra note 12. committee was stated to be one such colourable exercise of power. This became apparent from the summons issued which explicitly provided that, in effect, the Committee was dealing with law and order and the police. The battle between the Centre and the State qua Delhi which gave rise to the previous judicial pronouncements, clarified which of the two had powers qua specific excluded entries. It would be a betrayal of the mandate of these judgments which had upheld the rationale behind exclusion of entries drawing from the unique position of Delhi.105 135. The pith and substance argument was sought to be advanced to contend that reliance on entries in List II and List III was not justified if the matter directedly related to excluded entries.106 136. Learned Solicitor General, while accepting the proposition that entries have to be read widely, submitted that where there is a specific entry dealing with a particular subject, that specific entry would prevail to the exclusion of the general entry.107 The entries relied upon by the respondents were general in nature, while the entries of “law and order” and “police” were specific and thus, must prevail. The subsequent 105 Supra notes 27 and 82. 106 A.S. Krishna v. State of Madras AIR 1957 SC 297 at para 8; Kartar Singh v. State of Punjab (1994) 3 SCC 569 at para 60; Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra & Ors. (2010) 5 SCC 246 at para 40. 107 Supra note 84. executive action was also not permissible for the Assembly as the Central Government had sole jurisdiction even over executive matters relatable to those entries in view of Article 73 of the Constitution. The executive powers were mandated to be co-terminus with legislative competence and the legislature could not be allowed to intervene through the indirect method of committees and its privilege, thereby overreaching the 137. The principle of cooperative and collaborative federalism was not disputed but then it was urged that the summons did not say that the Assembly and the Committee wanted to give any recommendations. This was only a defence and an afterthought. By way of example, Mr. Mehta averred that on a defence strategy matter, the Assembly could not be permitted to call the Chief of Defence Staff (CDS). In fact, it was submitted that cooperative/collaborative federalism required the Assembly to function within the confines of the powers conferred on it and not commit an overreach – to read it otherwise would be combative or competitive federalism. 138. On the doctrine of occupied field, it was urged that the subjects which the Committee sought to go into were already occupied by the Parliament. Facebook was an intermediary, and in that regard would be covered under “communication”, which is Entry 31 of List I. In fact, all three fields of intermediaries, law and order or police were occupied by the Parliament. There was no perceived conflict of entries and the specific omission of Entries 1 & 2 of List II and the presence of Entry 31 of List I, clearly indicated which fields were specifically occupied by the Parliament and what has been specifically omitted for the Assembly.108 139. It was submitted that the Parliamentary Standing Committee on Information Technology was already in seisin of the aspect of “Safeguarding citizens’ rights and preservation of misuse of social/online news media platforms including special emphasis on women security in the digital space”. It was in pursuance thereto that a notice was issued to Petitioner No.1 on 20.08.2020 to provide his views and the said petitioner duly appeared before that Committee on 02.09.2020. There was, thus, no occasion for the Committee to go into this aspect. 140. On the aspect of the IT Act, a field occupied by the Parliament, it was submitted that even rules have been framed thereunder including the 108 ITC Ltd. v. State of Karnataka 1985 Supp SCC 476 at paras 17, 32; Hoechst Pharmaceuticals Ltd. v. State of Bihar (1983) 4 SCC 45 at para 51; Offshore Holdings (P) Ltd. v. Bangalore Development Authority (2011) 3 SCC 139 at para IT (Procedure and Safeguards for Blocking for Access of Information by Public) Rules that provide an elaborate procedure for blocking of information by an online intermediary and their criminal liability for failing to do so. The IT Act has been formulated under Entry 31 of List I, which covers “other forms of communication”. Thus, in that sense the intermediaries were beyond the competence of the Assembly. Section 69A of the IT Act specifically deals with blocking of content, including hate speech. 141. It was his submission that the legal issues involving law and order, public order, and the corresponding responsibility of online intermediaries to address hate speech on their platforms have already been addressed by the Central Government. The Assembly not having legislative competence, cannot also have the competence to examine people and prepare a report. There was no power to give recommendations and the summons did not even clarify that the exercise was for making recommendations. 142. Finally, the learned Solicitor General referred to the case in N. Ravi109 to contend that the issue in contention, i.e., the interplay of 109 Supra note 46. fundamental rights and parliamentary privileges, was already pending before a 7-Judge Bench. 143. In COVID times there have been some fast-paced developments around the world qua the role and management of intermediaries. In view of there being some time gap between the date of reserving the judgment and its pronouncement, we consider it appropriate to pen down these developments over the last four months. The UK Commons Privileges Committee published a new report on select committee powers on 03.05.2021, looking to strengthen the ability of select committees to call for persons, papers, and records. The background to this is the reluctance, or in some cases even refusal, of individuals to appear before these committees in a number of high-profile cases. The Privileges Committee has proposed a Parliamentary Committees (Witnesses) Bill, which would introduce new criminal offences relating to refusal to attend a summons or failing to provide information or documents without a reasonable excuse110. Prospect Magazine (07/05/2021), accessible at: Intermediaries and platforms have seen a hot pursuit in the US for regulating the consequences of their business. The House Energy and Commerce Committee of the US House of Representatives issued a summons to Facebook CEO Mark Zuckerberg, Google CEO Sundar Pichai, and Twitter CEO Jack Dorsey on 25.03.2021, with which they duly complied. The House Committee pointed out false claims about COVID-19 vaccines and the supposed election fraud that had proliferated on social media platforms.111 The background was the incident at the Capitol post the US Presidential Election results being declared in 2021. It is of significance to note the comments of the Chairman of the Committee, Frank Pallone that, “For far too long, big tech has failed to acknowledge the role they have played in fomenting and elevating blatantly false information to its online audiences. Industry self- regulation has failed.”112 The Chairmen of two other sub-committees remarked, “We must begin the work of changing incentives driving social Appearance Before Congress In March, CNBC (18/02/2021), accessible at: 112 House Committee on Energy and Commerce , Press Release, , E&C Committee Announces Hearing with Tech CEOs on the Misinformation and Disinformation Plaguing Online Platforms, (18/02/2021), accessible at: media companies to allow and even promote misinformation and disinformation.”113 The divergence of views between Republicans and Democrats was also evident. While the former claimed that conservative viewpoints are maligned on social media platforms, the latter sought action against misinformation and hate speech with special attention to its impact on minority communities including the LGBTQ+ community, the Black community, Asian Americans, and Latin Americans. These developments, to our mind, are apposite to be examined in the context of the argument advanced on behalf of the petitioners that they do not want to appear before the Committee on account of a divided political milieu. 144. In India, since 2020, a Joint Parliamentary Committee has been examining the Personal Data Protection Bill, 2019 in relation to the issues of data protection and security.114 The Committee summoned telecom operators Jio and Airtel as well as aggregators Ola and Uber in November, 2020. Google, PayTM, Facebook, Twitter and Amazon have 114 Ministry of Parliamentary Affairs, Press Release, Joint Committee on the Personal Data Protection Bill, 2019 Seeks Views and Suggestions , (03/02/2020), accessibleat: https://pib.gov.in/PressReleasePage.aspx?PRID=1601695. earlier deposed before this Committee115 and the report of the parliamentary committee is stated to be in its final stages. 145. A significant development has been the notification of The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 on 25.02.2021116, a day after the judgment was reserved. These rules introduce a range of due diligence measures to be implemented by intermediaries and lay down a code of ethics for digital news platforms in relation to digital media. These Rules have been assailed before different High Courts across the country including Kerala, Karnataka, Madras, and Delhi, and are currently pending consideration. 146. Yet another significant development in the context of the controversy before us, in the legislative domain, has been the amendment Truecaller Over Data Security Concerns, India Today, aaccessible at: 116 The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Notification of the Ministry of Electronics & Information Technology No. 2021 G.S.R. 139(E) (25/02/2021), accessible at: of the GNCTD Act which came into force on 27.04.2021117. The a. The term ‘Government’ referred to in any law made by the Delhi Legislative Assembly will mean the Lieutenant Governor b. The LG must reserve for the consideration of the President all bills that incidentally cover any matters that fall outside the purview of the powers conferred on the Legislative Assembly. c. Rules made by the Delhi Legislative Assembly to regulate its own procedure and conduct of business in the Assembly must be consistent with the Rules of Procedure and Conduct of Business in the Lok Sabha. d. The Delhi Legislative Assembly will not be entitled to make rules to (i) enable itself or its Committees to consider matters of day-to-day administration of the NCT of Delhi, or (ii) conduct any inquiry in relation to administrative decisions; and any such rules made prior to this amendment will be void. 117 Ministry of Home Affairs, Press Release, , Amendments to GNCTD Act, 1991 Do not Alter Constitutional and Legal Responsibilities of Elected Government in Respect of Transferred Subjects in State & Concurrent Lists (29/04/2021), accessible at: https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1714828. e. Any executive action taken by the Delhi Government will be in the name of the LG and the requirement of a prior opinion of the LG by the Delhi Legislative Assembly before it takes any executive action in respect of certain matters with such matters being specified by a general or special order issued by the LG. 147. The object of the aforesaid as per the Statement of Objects and Reasons of these amendments is stated to be to promote “harmonious relations between the legislature and the executive” and to define the responsibilities of the elected government and the LG in accordance with the two NCT judgments118. Suffice to state that these amendments have been assailed before the Delhi High Court and are pending consideration. 148. We say that these amendments are significant as in a way they appear to be an offshoot of the continuous tussle between the State Assembly and the Central Government. The present proceedings where such difference of opinion is clearly reflected seem to also be a trigger, possibly in an attempt to control what the Assembly and the Committee intended. However, we are concerned with the situation prevalent at the relevant time and the arguments advanced in that behalf. We have not 118 Supra notes 27 and 82. been called upon to comment on the consequences of these amendments qua the subject matter of the present proceedings, more so when the challenge in respect of the same is pending before the Delhi High Court. 149. We must begin our opinion by noticing at the inception itself, the vast and influential role of an intermediary like Facebook. In this modern technological age, it would be too simplistic for the petitioners to contend that they are merely a platform for exchange of ideas without performing any significant role themselves – especially given their manner of functioning and business model. Debate in the free world has shown the concern expressed by Governments across the board and the necessity of greater accountability by these intermediaries which have become big business corporations with influence across borders and over millions of people. Facebook today has influence over 1/3 rd population of this planet! In India, Facebook claims to be the most popular social media with 270 million registered users. The width of such access cannot be without responsibility as these platforms have become power centres themselves, having the ability to influence vast sections of opinions. Without undermining the role performed by Facebook in giving a voice to various sections of society across the world, it has to be noted that their platform has also hosted disruptive voices replete with misinformation. These have had a direct impact on vast areas of subject matter which ultimately affect the governance of States. It is this role which has been persuading independent democracies to ensure that these mediums do not become tools of manipulative power structures. These platforms are by no means altruistic in character but rather employ business models that can be highly privacy intrusive and have the potential to polarize public debates. For them to say that they can sidestep this criticism is a fallacy as they are right in the centre of these 150. Facebook as a platform is in the nature of a mass circulation media which raises concerns of editorial responsibility over the content circulated through its medium. The width of the reach of published material cannot be understated or minimized. Facebook has acknowledged in their reply that they removed 22.5 million pieces of hate speech content in the second quarter of 2020 itself, which shows that they exercise a substantial degree of control over the content that is allowed to be disseminated on its platform. To that extent, a parallel may be drawn with editorial responsibility cast on other mass circulation media. 151. The business modelof intermediaries like the petitioner being one across countries, they cannot be permitted to take contradictory stands in different jurisdictions. Thus, for example in the United States of America, Facebook projected itself in the category of a publisher 119, giving them protection under the ambit of the First Amendment of its control over the material which are disseminated in their platform. This identity has allowed it to justify moderation and removal of content. Conspicuously in India, however, it has chosen to identify itself purely as a social media platform, despite its similar functions and services in the two countries. Thus, dependent on the nature of controversy, Facebook having almost identical reach to population of different countries seeks to modify its stand depending upon its suitability and convenience. 152. We are afraid we are not inclined to accept the simplistic approach sought to be canvassed by Mr. Salve on the role of Facebook. Forceful as it may be, it does not convince us. Developments around the world, as 119 Facebook’s Motion to Dismiss Pursuant to Federal Rule Of Civil Procedure 12(B)(6) and Incorporated Memorandum Of Law in Laura Loomer v. Facebook Inc. Case No.9: 19-cv-80893-RS, accessible at https://docs.reclaimthenet.org/Loomer- we have noted above, reflect rising concerns across borders. The concern is whether the liberal debate which these platforms profess to encourage has itself become a casualty. We have noticed in the beginning that algorithms, which are sequences of instructions, have human interventions to personalise content and influence opinions as part of the business model. As such, their primary objective is to subserve their business interests. It is first a business and then anything else. As per their own acknowledgement, they would only appear before any committee if it served their commercial and operational interests, as it did when they appeared before the parliamentary committee. But if their business interests are not served, they seek a right to stay away. Such a stand is completely unacceptable to us. Facebook has the power of not simply a hand but a fist, gloved as it may be. 153. We now turn to the incident at hand, that of an unfortunate violent eruption. The need to go into this incident both from a legal and social perspective cannot be belittled. The capital of the country can ill-afford any repetition of the occurrence and thus, the role of Facebook in this context must be looked into by the powers that be. It is in this background that the Assembly sought to constitute a peace and harmony committee – whether it has the legislative competence or not is an aspect we will deal with it under the relevant head. The Assembly being a local legislative and governance body, it cannot be said that their concerns were misconceived or illegitimate. It is not only their concern but their duty to ensure that “peace and harmony” prevails. However, we may note that the long and repeated battles between the State and the Centre appear to have cast a shadow even over the well-meaning intent of the Committee to assess peace and harmony as reflected in the Terms of 154. We may record that the Central Government and the State Government have been unable to see eye to eye on governance issues in Delhi. This has been responsible for a spate of litigation and despite repeated judicial counsel to work in tandem, this endeavour has not been successful. There is little doubt that the constitution of the governance model in Delhi is somewhat unique. This itself flows from Delhi being the capital of the country. Delhi has had a history of having an Assembly replaced by a model of Union Territory governance by Executive Councilors. There were long years of tussle to have a Legislative Assembly with commonality of objectives across the primary political space, but whoever was in governance found it difficult to let go. The model that came into being, thus, had somewhat of a hybrid character, giving an expanded role to the Central Government as compared to any other Legislative Assembly. To that extent, there was a diminishing of the federal structure but there appears to have been a consensus on this 155. The aforesaid arrangement worked well for many years even with different political dispensations in power in the Centre and the State. But the last few years have seen an unfortunate tussle on every aspect with the State Government seeking to exercise powers as any other Assembly and the Central Government unwilling to let them do so. The bone of contention has not only been the three subject matters of which the State was denuded of its powers, i.e., Entries 1, 2 & 18 from List II; but it is almost a daily governance tussle. 156. The political dispensation which is in power in the State has to recognise the constitutional scheme of division of powers in Delhi which circumscribes their ability to work only within those powers. When they got elected, they knew what they were getting elected for – not what they thought should be the division of powers. On the other hand, the Central Government is required to work in tandem, albeit with a different political dispensation. Maturity is required from both sides and we have to reluctantly note the absence of such maturity in this important inter- 157. To work well, the Central Government and the State Government have to walk hand in hand or at least walk side by side for better governance. The failure to do so is really a breach of their respective electoral mandate, the seven Lok Sabha seats are all held by the powers that be in the Central Government but a very different result came in the Assembly Elections. This has seen a repeat. It is a reflection of the maturity of the electorate which has chosen to put one dispensation in power in the Centre while seeking to choose another in the State as the roles are divergent. The concerns are different. The two powers unfortunately do not seek to recognise this aspect, and that is the bane of this structure requiring collaboration and concurrence. Unfortunately, it has become an endeavour to score points over the other. Some prior discussion and understanding could easily solve this problem instead of wasting large amounts of judicial time repeatedly arising from the failure of the two dispensations to have a broader outlook. In fact, the current round is, in our view, arising from the petitioners seeking to take advantage of this divergence of view and their inability to see a common 158. No governance model requiring such collaboration can work if either of the two sides take a ‘my way or the high way’ approach –which both seem to have adopted. We have expressed our view on the contours of the dispute and the facts have already been set out hereinabove. We see no purpose in repeating those facts. We now turn to the four propositions which form the basis of the writ petition (dealt with under three heads) to record our views qua them. 159. The privilege issue arises out of the plea advanced by the petitioners that both, the First Impugned Summons dated 10.09.2020 and the Second Impugned Summons dated 18.09.2020, were to summon Petitioner No.1 or a duly authorized representative of Petitioner No. 2 respectively with a threat of “privilege”. This argument was coupled with a plea that such power of privilege cannot extend to compel an individual, who is not a member of the House, into giving evidence/opinion that they are not inclined to state. 160. We may note the elaborate arguments addressed by Mr. Salve, based on a premise that privilege power is really a special right enjoyed as a shield in order to facilitate the working of the Assembly. It is not a sword for assertion of power. It was argued that the constitutional schemes of the UK and of India, a republic, are different and thus, the privilege powers in the latter must be strictly confined to legislative functions. Only if the integrity of the legislative functions is impaired, either by a member or by non-members, would the occasion arise for exercise of such power. 161. In fact, Mr. Salve sought to contend that it is time that exercise of privilege power is codified, and to that extent an intent was expressed by the Constitution makers in sub-clause (3) of Article 194. The relevant portion states that such privileges “shall be such as may from time to time be defined by the Legislature by law.”, and thus, the submission was that this clause operated for a period “until (privilege powers were) so defined.” Mr. Salve sought to persuade us to either lay down the guiding principles or at least nudge the Parliament/Legislature to do so. We have already noticed that this is an aspect seriously disputed by all the counsel for the respondents. 162. We may notice in the aforesaid context that the wordings of Article 194(3) are unambiguous and clear, and thus do not require us to give our own twist or interpretation to them. These are not wordings of a statute, but that of the primary document – the Constitution. The powers, privileges and immunities of a House of the State Legislature as well as its committees have been clearly defined as those of the House and all members and committees thereof before the coming into force of Section 26 of the Constitution 44th Amendment Act, 1978. There was no timeline provided for codification of powers, privileges and immunities of a House. The Constitution has given leeway to the Legislature to define the same from time to time, but there was no compulsion qua the same. If the Legislature in its wisdom is of the opinion that it needs to be so done, they will do so. Is it for this constitutional court to nudge them in that direction? Our answer would be in the negative. 163. We say so as this is itself a debatable issue. There is a divergence of views even amongst constitutional experts whether full play must be given to the powers, privileges, and immunities of legislative bodies, as originally defined in the Constitution, or is it to be restricted. Such opinion would have to be debated before the Parliament/Legislature of the State to come to a conclusion, one way or the other. It is not even a subject matter where it could be said that any one opinion must prevail, or a nudge must be given by this Court, or a recommendation must be made for consideration by the legislative body. That Scotland and Wales have considered it appropriate to have their own enactments in this context, is a deliberate legislative exercise by those bodies. There is no uniformity across the world in this regard. 164. The notion of individual constitutional rights and the right to privacy is sought to be expanded by the petitioners to encompass the right of refusal even to appear in pursuance of the summons. The debates across democratic policy including some of the developments recorded by us, would show that there is a turn towards recognising the importance of an element of compulsion (if so required) for deposition/opinions relating to the present subject matter. This is more so in the context of monolithic business models having vast financial and technical powers at their disposal. As a constitutional court, we are not inclined to step into 165. It is not disputed that committee proceedings cannot be equated to proceedings before the court of law.120 No doubt these powers have to work in the context of the business of each House, and no House can be a knight in shining armour to correct issues in respect of which it has no legislative power. Yet, it would be a monumental tragedy to conclude that the legislature is restricted to the function of enacting laws. The role of the legislature is sought to be diminished by such an argument. The legislature debates many aspects, and at times records a sense of the House. This is not unusual or without precedent. The judgment in Amarinder Singh121 is of little assistance to the petitioner as that was a case of an executive act of exemption of land, and in no way obstructed or threatened the integrity of the legislative proceedings. The facts of each case are important and propositions of law must apply in the context of the facts. 166. Once we recognize the wider array of functions performed by an elected Parliament or Assembly, not confined to only enacting laws, any 120 Lord Denning’s observations as noted in State of Karnataka v. Union of India on note 9. act in furtherance of this wider role and any obstruction to the same will certainly give rise to an issue of parliamentary privilege.122 167. There is little quibble with the proposition recognized in the Special Reference No.1/1964123 that there is a distinction between exercise of legislative privileges and ordinary legislative functions. A similar line of reasoning has been expressed in Justice (Retd.) Markandey Katju v. Lok Sabha and Anr., when the hackles of the Parliamentarians were raised on account of some utterances by Justice (Retd.) Markandey Katju.124 We, however, fail to appreciate the line of argument that no non-member could be summoned if they had not intruded on the functioning of the Assembly; or that the non-participation of the petitioner would not have adverse consequences as it did not disrupt the functioning of the Committee. The petitioners, more so with their expanded role as an intermediary, can hardly contend that they have some exceptional privilege to abstain from appearing before a committee duly constituted by the Assembly. 168. We really do not have any quibble with the propositions advanced by Mr. Salve that there can be judicial scrutiny of an endeavour to 122 Supra note 24. exercise the power of privilege, which inherently suffers from lack of jurisdiction, if illegal or unconstitutional.125 The issue, however, is whether the situation has at all arisen meriting scrutiny by this Court- which in turn has to be preceded by initiation of the privilege proceedings, an aspect emphasised by learned counsel for the Assembly as well as the Committee. 169. In the factual matrix, only a summons has been issued for appearance before the Committee. The question of any privilege power being exercised is yet far away. It has been rightly pointed out by the learned counsels for the respondents, that even if there was any breach of privilege recorded by the Committee, the Committee would in turn have to make a recommendation to the Assembly. The Assembly then would be entitled to consider whether it is a fit case to exercise the power of breach of privilege. In many cases, it may well be that the Assembly considers that it is not worthwhile to do so, even if the Committee was to prima facie opine so. The exercise by the Assembly is further dependent on the opinion of the Privileges Committee. Thus, there are various tiers of scrutiny before there is culmination of the exercise of power of 125 Supra notes 12, 15 and 20. privilege. None of those eventualities have at all arisen in the present case. This case is a preventive endeavour by the petitioner to preclude the respondents from even considering the aspect of privilege by seeking this Court’s intervention at a pre-threshold stage, only on the premise of the absence of legislative power. We will, of course, consider the aspect of absence of legislative power as the last aspect on the questions framed - but we cannot accept the fetters Mr. Salve seeks to place on the Assembly and the Committee at the threshold. We may notice the arguments of the respondents that recording of the consequences of breach of privilege in a notice to appear is apparently something which is done in a routine manner in such notices. This is possibly to make the noticee conscious of the consequences. That would not mean that an action for privilege has been triggered off at the outset. 170. We would like to turn to the aspect of the importance of the working of committees; as, if there is no power to compel attendance, we have little doubt that the working of these committees would be badly 171. The committees constituted by legislative bodies like the Assemblies for the States and Parliament for the Union, perform a key role in the functioning and the working of the Houses. In fact, it is often said that the real work is done in these committees - away from the din of the Parliament. These committees witness more vociferous reflection of the divergent view, slightly away from public gaze. It is said that there is a more reasonable and applied discussion in these committees. This is an aspect recognized all over the world qua the functioning of such committees. These committees are bodies which have the capability to undertake wide-scale consultative processes, engage in dialogue, and build consensus through intelligent deliberations. In fact, such an exercise is intrinsic to the legislative process where public policies would require detailed studies and concentration. These committees undertake deliberations and provide recommendations as precursors to legislative activities, and the effective working of committees is a prelude to the core working of the Assemblies. 172. The committees are an extension of the legislature itself and do informed work. Their significance has been exhaustively dealt with in Kalpana Mehta126 which we have extracted hereinabove. US Representative James Shannon’s words were noted with approval in the 126 Supra note 20. judgment, recognising that “around the world there is a trend to move toward reliance on committees to conduct the work of parliament, and the greatest reason for this trend is a concern for efficiency.”127 It is not possible for us to accept the contention of the petitioners to create an artificial division between Assembly’s core/essential and non-essential functions, with any restrictive clauses being placed on the deliberations of the committees. Such water-tight compartmentalisation is not advisable. Unless the committee embarks on a course completely devoid of its functional mandate specified by the Assembly, or the Assembly itself lacks jurisdiction to deal with the subject matter, we are of the view that the widest amplitude must be given to the functioning of these committees. It is the parliamentary committee system that has been recognised as a creative way of parliaments to perform their basic functions. The same principle would apply, even if it is to some extent beyond their legislative domain. This is because they will not be able to make any valid legislative recommendations in the absence of competence over the subject matter. However, they may debate aspects 127 Comment of US Representative James Shannon during the 1995 Conference on the Role of Committees in Malawi’s Legislature as noted in Kalpana Mehta at which may be a reflection of their sense and consequently the sense of the House, if so adopted by the House. 173. Walter Bagehot in his seminal work “The English Constitution” 128 elucidated five significant functions of the House - elective, expressive, teaching, informing and finally, the legislative. The legislative function itself is a broad umbrella under which multiple responsibilities and tasks are carried out in synchronization. The legislature is a “democratic nucleus”, whereby such title entails the law-making process itself as being multi-functional; involving receipt of informed opinions and balancing interests of various stakeholders.129 Committees actually are in the nature of specialised forums as Mallory states: “The flow of public business is now so great, and its nature so complicated, that it can only be handled by bodies with the technical competence and the rational organization to master it. As Dr. Bernard The novels of C. P. Snow, Professor Parkinson’s Law and K. C. Wheare’s Government by Committee are all, in different ways, testimonies to the truth that the most important work of central government is conducted not by civil servants or M.P.’s working as individuals, but by committees (Bernard Crick, Reform of the Commons. Fabian Tract No.319 (London, 1959), p.13).” 129 J.R. Mallory, The Uses of Legislative Committees, 6 Canadian Public 174. The inquisitorial role of the committee in the functioning of House is of great significance, and as recognized, the investigation of a complicated social problem prior to legislation often rests frequently on such legislative committees.130 This task involves the examination of witnesses and is helpful in dealing with matters of special and technical nature, wisened by insight into affairs of the workings of different aspects and the views expressed by different stakeholders. It can hardly be said that in the context of what has been debated, the petitioners have no role to play or are “outsiders”. Intelligent legislative action and deliberation thereon rests on the power to investigate into questions of public importance and, thus, issuance of summons is key to this investigative exercise - a role clearly recognised in Kalpana Mehta131. 175. We have no hesitation in stating that the endeavour of the petitioners to sidestep their appearance before the Committee on a perceived notion of not being an official representative - is not acceptable to us – whether the exercise is for a legislative enactment, or for other 130 Promila Suri, Growth of Committee System in Central Legislature of India 131 Supra note 20. purposes connected with its legislative domain. After all, “To be a valid legislative inquiry there need be no predictable end result.”132 176. The Committee is yet to start its work qua the assistance to be rendered by the petitioners. The petitioners cannot themselves frame and presume possible questions that they might face before the Committee, and then seek to encompass it under the argument of legislative incompetence. The work of The Committee could encompass several fields where organisations and individuals are expected to cooperate. 177. We are also not impressed by the argument that the privilege powers of the Assembly are not constitutional in character but flow only from the GNCTD Act. The scheme of privilege has to be seen in the context of provisions of Article 239AA of the Constitution, as well as the GNCTD Act. They are not divorced from each other. Dr. Singhvi, thus, rightly referred to clauses 7(a) and 7(b) of Article 239AA to contend that the GNCTD Act was not deemed to be an amendment to the Constitution for the purposes of Article 368, notwithstanding that it may contain any provision which amends or has the effect of amending the Constitution. Rights and privileges are the same as any other House and, thus, the 132 Supra note 79. calling into question of the proceedings of a sub-committee amounts to calling into question the proceedings of the Assembly. At the cost of repetition, we say that there has been no exercise of privilege power. However, we have been called upon to deliberate, if one may say, to some extent unnecessarily over this issue on account of insistence of the petitioners to advance this argument prematurely. We do not know whether on participation of the petitioners any question of privilege would arise, whether the Committee would make a reference to the Assembly, whether the Assembly would consider it to be referred to the Privileges Committee, what would be the opinion of the Privileges Committee and finally whether the Assembly itself would embark on a path of a breach of privilege by the petitioners. This is a completely speculative exercise. 178. The Assembly is no different from any other State assembly, except to the extent that certain powers in List II of the Seventh Schedule have not been conferred (i.e., Entries 1, 2 & 18). As a principle of law, we are required to read all entries widely. Neither the included Entries nor the excluded Entries have to be read restrictively. That is the principle we will have to keep in mind. 179. Dr. Singhvi rightly pointed out that there is no judicial precedent shown before us where judicial review has been successfully exercised at such a threshold stage. Thus, judicial precedents would have to be read in their factual matrix. The stage for any possible judicial intervention has not arisen in the present case. In fact, such a threshold intervention was sought and repelled by the Full Bench of the Madras High Court in C. 180. We have little doubt that a “Peace and Harmony” Committee may have a much wider amplitude than what is excluded in Entries 1, 2 & 18 of List II. As to the issue of the extent of legislative power, we will deal with it in the third part of our conclusion. 181. We have already noted with some disquiet the divergence of views taken by Dr. Dhavan and Dr. Singhvi on the issue of the earlier notice being withdrawn, and a subsequent notice being sent. Dr. Dhavan expressed that this was really of not much significance. We are of the view that the Committee is a creation of the Assembly. The notice was withdrawn by the respondents themselves. In the wisdom of the Committee, they sent a fresh notice- that the same was possibly not under 133 Supra note 30. the advice of Dr. Dhavan or may have been on the advice of Dr. Singhvi is of little relevance to us. Such conflict of submissions was best avoided and unnecessarily gave rise to another set of arguments on behalf of the petitioners to read some intent into the same. Dr. Dhavan was, however, right in seeking to repel the challenge as based on anticipatory nature of proceedings – being presumptive and preemptive. 182. The aspect of Dr. Dhavan’s submission that the Committee’s threat to recommend criminal action was “toothless” and the Committee Chairman’s statements during the press conference in this regard are both best dealt with under the third aspect. Suffice to say at this stage that, in our view, greater care would be required while framing the Terms of Reference so as to not include something which would be termed by the counsel as “otiose” before this constitutional court. The utterances of the Chairman of the Committee, which would give rise to petitioner’s apprehensions are best avoided. We are noticing these aspects because these two factors can be the only reasons for the petitioners to have approached this Court at this stage. In our view, there would have been nothing to argue but for these two aspects – the first effectively withdrawn during the course of argument, and the second sought to be explained away as views of the people who deposed before the Committee. We find it very difficult to accept both these aspects, and we can safely say that these gave the petitioners an ostensible cause for approaching this Court. This is an issue we cannot ignore - but for these aspects, we would have possibly burdened the petitioners with exemplary costs to have approached the court at this stage. A number of past illustrations have been rightly given by Dr. Dhavan to illustrate notices issued to non-members which we have already recorded in para 58 and there is no need to repeat them. 183. We may record, at the end, that there is actually no serious dispute about the per se competence of the Committee to discuss matters outside the legislative domain of the Assembly but it was with a caveat that it could not give rise to exercise of power of breach of privilege and the right to summon a non-member. That being the position, we have already noticed that any plea raised on the exercise of privilege is a pre- emptive strike in the absence of underlying facts. Where that situation arises in the given factual context, the petitioners could have and would be entitled to assail the same, but this Court will not indulge in an advance ruling on this aspect. We have already clarified that we are not inclined to accept the distinction between a member and non-member in the aforesaid context; and the power of the Assembly to summon in the format it sought to do is beyond exception and in accordance with law. So much for the aspect of privilege. 184. Mr. Salve sought to pit the expanded right of free speech and privacy against privilege, emphasising that the petitioner had a right to remain silent. In the context of the plea of the petition being premature (which we have found against the petitioners as aforesaid), his submission was that the mere threat of “necessary action” i.e., the possibility of a breach of privilege, was enough to infringe both the right to free speech and privacy. Thus, “the threatened invasion of the right” could be “removed by restraining the potential violator”.134 185. The more restricted plea advanced by Mr. Salve was that even if the right of privilege is recognised, it must be narrowly construed so as to give maximum play to the fundamental rights to privacy and free speech, which includes the right to remain silent. We may note that in view of the original notice being withdrawn, Facebook’s plea of not having the 134 Supra note 38. option of choosing whom to send stands whittled away. The interesting part is that Petitioner No.1 did appear before the Parliament. 186. We find it rather difficult to countenance the plea that the judgment of this Court in MSM Sharma135 stands whittled down by subsequent judicial pronouncements or that powers, privileges and immunities under Articles 105(3) and 194(3) of the Constitution must give way to the more fundamental right of free speech under Article 19(1)(a) of the Constitution in view of the reference pending before the larger Bench in 187. We have discussed at some length the aspect of privilege and the rights which flow from it. Though such proceedings are not taking place in Court, where depositions also take place, privileges of an elected body of the Legislative Assembly and consequently of its committees must be given full play. 188. We would also not like to delve on this issue in more depth as we are conscious of the fact that the perceived conflict between MSM 135 Supra note 14. Sharma137 and Special Reference No.1 of 1964138 is pending consideration before a larger Bench in N. Ravi139. Suffice for us to add that this reference has been pending since 2005. It may be stated that this reference needs to be given some priority to settle the legal principles involved, especially in the context of the expanding conflict on such subject matters. 189. Be that as it may, we also agree with what Dr. Singhvi contended -that this is another aspect which is premature. No coercive action has been taken against the petitioner, and none was intended if the authorised representative of the petitioners simply participated in the proceedings as a witness. Emphasis was also laid on the transparency of these proceedings in view of them being broadcasted live. The summons having been lawfully issued by an empowered committee (subject, of course to the legislative competence discussed hereinafter), the same must be answered. The proceedings are not criminal or judicial in nature as there is no accused before the Committee. Naturally, the Rules framed by the House under Section 33 of the GNCTD Act (which in turn draws 137 Supra note 14. strength from Article 239AA(7) of the Constitution) would be followed. Protection of proceedings before the Assembly or the Committee under Article 194 would include deposition of members or non-members. 190. We may add here that the option to not answer a question before the Committee cannot seriously be disputed qua certain aspects if so pleaded for good reasons, an aspect which would be examined by the Committee as per Rules. 191. We would not like to say anything more on this subject in view of the reference pending in N. Ravi,140 and the fact that the complete plea of the petitioners is premature as nothing has really happened other than them having been asked to appear before the Committee. 192. Is the Assembly embarking on a path which is blocked for them? This is the core question of legislative competence of the Assembly in the context of its powers and privileges not being akin to other State Assemblies. The endeavour of Mr. Salve was to persuade us that once the Assembly lacks competence, the petitioners have a right to stay away, as 140 Supra note 46. all proceedings before the Committee would be devoid of any constitutional mandate. 193. It is undisputed that the Assembly is different from the other State Assemblies to the extent that certain subject matters of List II have been specifically excluded and conferred on the Central Government. It is, thus, nobody’s case that aspects covered by Entries 1, 2 & 18 in List II can be dealt with by the Assembly and consequently, the Committee. In fact, the submission of Mr. Salve can be summarised as advancing a plea that the Assembly and the Committee cannot be permitted to do indirectly what they cannot do directly. 194. While there is no dispute about the principle of reading the Entries as widely as possible, that proposition is in the context of challenging a law for lack of legislative competence. Here we are concerned with the interplay of Entries. The issue would be whether the Central Government has the legislative competence or the Assembly. The widest amplitude has to be given even to the three Entries of which the legislative competence has been denuded from the Assembly and conferred on the Parliament. 195. It is in the aforesaid context that it was emphasised that apart from the aforesaid three Entries, what is also to be appreciated is that the business of Facebook is directly covered under a Parliamentary enactment, i.e., the I.T. Act. In this respect, petitioners have willingly cooperated with proceedings before the Parliamentary Committee in the 196. That Facebook is an intermediary was submitted to be apparent from Section 2(1)(w) of the I.T. Act. The role of the intermediaries is covered by this enactment including the right of the Central Government to issue directions to block public access to any information under Section 69A of the I.T. Act and this is no more res integra in view of the judgment in Shreya Singhal141 where a procedure for the same has been laid down. 197. The intent of the Committee (and for that matter the Assembly) was argued by Mr. Salve to be quite clear, i.e., to encroach on the very domain which was prohibited. This was stated to be apparent from the Terms of Reference. The Terms of Reference contained in paragraph 4 (i) (to consider the complaints from the members of the public, social 141 Supra note 66. organisations, journalists, etc. on the situation prevailing in a particular area/areas which have the potential to disturb communal peace and harmony or where communal riots have occurred) have to be read in context of para 4(vii) which tasks the Committee with recommending action against such persons against whom incriminating evidence is found. The respondents could not get away by simply saying that the power of recommending action against such persons against whom incriminating evidence is found is not capable of being enforced in view of the lack of legislative competence. These are the aspects which were sought to be given teeth by threatening privilege in the last paragraph of the Terms of Reference. 198. Mr. Salve also sought to rely on the reply of the respondents to justify that these were not mere apprehensions. We have set out these aspects as reflected in para 90. 199. It could not be seriously disputed before us that collaborative federalism was an integral part of the working of the Indian Constitution as emphasised by the Court. However, it was simultaneously accepted that such functioning had to be within respective spheres of legislative competence. Were the Assembly to encroach upon matters covered by List I (and similarly, if the Central Government were to encroach upon the powers of the Assembly in List II), it would lead to a chaotic situation and a breakdown of the division of powers inter se the Centre and the 200. We are, however, not impressed with the argument of Mr. Salve that the petitioners cannot be drawn into what is perceived to be a political divide. Facebook is a platform where such political differences are reflected. They cannot wash their hands off the issue as this is their very business. As noticed earlier, their role is not as innocuous as they are seeking to contend. 201. Similarly, we cannot accept the plea that an Assembly must confine itself to the core function of legislation. This would be unreasonably restricting the role of an elected body. 202. Mr. Salve’s emphasis was that all that transpired was a subterfuge as the real intent of the Committee was to look into issues that were beyond their scope, while expanding their powers on account of a political conflict between the Central and State Governments over the issue of the riots in question. This was stated to be quite apparent from the nature of depositions recorded before the Committee and the statements made in the press conference by the Chairman of the 203. As already stated, we have little doubt over the proposition that the division of powers between the Centre and the State Assemblies must be mutually respected. The concept of a wide reading of Entries cannot be allowed to encroach upon a subject matter where there is a specific entry conferring power on the other body. It is this very principle which was in the minds of the Constitution makers, considering the wide diversity and the federal nature of the country. Thus, whether it is the argument of Mr. Salve or Mr. Datar in this context, we find them unexceptionable. The illustrations given by Mr. Datar for exercise of such powers and their judicial scrutiny in the US also support the proposition, i.e., that an inquiry could not be an end in itself and has to be related to a legitimate task of the Congress (legislative body). 142 There could not be exercise of power which may “defeat or materially impair” the exercise of its fellow 142 Supra note 76. branches’ constitutional functions, nor “intrude upon a core zone” of 204. We are also of the view that the recourse to Entries 1 & 2 of List III cannot be said to include what has been excluded from the powers of List II, i.e., Entries 1, 2 & 18. Similarly, Entry 45 of List III relating to inquiries would again not permit the Assembly or the Committee to inquire into the aspects of public order or police functions. That a law and order situation arose is not disputed by anyone, and that this law and order issue related to communal riots also cannot be seriously disputed. That the Assembly cannot deal with the issue of law and order and police is also quite clear. Thus, the moot points would be (a) what is the scope of inquiry of the Committee; (b) whether it could be said that there is any aspect of the inquiry which falls within the legislative domain of the Assembly; and (c) whether the attendance of the petitioners could be compelled legitimately. 205. We may say that both Dr. Singhvi and Dr. Dhavan were quite conscious of the limitations which inherently exist on the powers of the Assembly. It is in that context that their argument was premised on a 143 Supra note 81. broader understanding of the expression “peace and harmony”, as opposed to it being restricted to law and order. However, the difficulty that they face relates to the part of the Terms of Reference that was clearly outside the purview of the powers vested with the Assembly. This problem was compounded by what transpired in the press conference held by the Chairman of the Committee. Speaking on behalf of the members of the Committee, the Chairman made certain statements that assume greater significance by virtue of being in the public domain. 206. We also do not disagree with the in-principle submission of Dr. Dhavan, drawing strength from judicial precedents in the US, that the power to investigate is inherent in the power to make laws by the legislative body.144 But while recognising this, the issue in the present case is whether the Assembly can at all legislate on the matter. The investigative function of committees carries with it the possibility of researchers ending up in some “blind alleys”.145 This would have to presuppose that there is an alley. Thus, while we respect the right of the Committee to the extent that there exists an obligation on the petitioners to respond to the summons, we cannot permit the proceedings to go on in 144 Supra notes 76, 78, 79. 145 Supra note 79. a manner that encroaches upon the prohibited entries. We hasten to add that we are not seeking to control how the Committee proceeds. In fact, the Committee is yet to proceed. But certain provisions of the Terms of Reference coupled with the press conference is what has persuaded us to say something more than simply leaving it to the wisdom of the Committee to proceed in the manner they deem fit. 207. Once again, we do appreciate the contention of Dr. Dhavan that the police cannot be the sole custodian of peace and harmony and that the expression itself has various connotations. Despite the State Government being denuded of certain powers, it has to be noted that governance has many manifestations, and functions of the Government can be realised in different ways. This is especially true in the present case where the situation was admittedly created through an intrinsically law and order issue. 208. The moot point is whether the expression “peace and harmony” can be read in as expanded a manner as Dr. Dhavan seeks to do by relying a on a number of Entries in List II and List III. We have no doubt that peace and harmony, whether in the National Capital or in a State context, is of great importance. But it would be too much to permit the argument that peace and harmony would impact practically everything and thus, gives power under different entries across the three lists. We, do, however, recognise that the inquisitorial and recommendatory powers can be utilised under the principle of better governance. 209. In the aforesaid conspectus, while keeping in mind Article 212 which restrains courts from inquiring into the proceedings of a legislature, we must also note that a narrow scope of judicial review has always been appreciated and understood. We are confronted with a situation where the two legislative bodies are not on the same page as to what transpired and there is in a sense, a tug of war on the issue as to who would look into what happened and what ought not to have happened. It is in this context that the learned Solicitor General emphasised the doctrine of pith and substance to locate the power within the entries which have been taken out of List II and thus, seeks to block the inquiry by the Committee on aspects which are already covered under the three excluded entries or under the I.T. Act. 210. The divergent contentions lead us to conclude that the Committee can trace its legitimacy to several Entries in List II and List III without encroaching upon the excluded fields of public order or police toundertake a concerted effort albeit not to the extent as canvassed by Dr. Dhavan. Facebook cannot excuse themselves from appearing pursuant to the New Summons issued to them on 03.02.2021. Areas which are not otherwise available to the legislature for its legislative exercise may, however, be legitimately available to a committee for its deliberations. This is so in the context of a broad area of governmental functions. Ultimately, it is the State Government and the State Assembly which has to deal with the ground reality even in the dual power structure in Delhi. If we may say so, it is only the factum of Delhi being the capital and the sensitivities arising therefrom in respect of public order or police which has possibly persuaded these powers to be retained by the Central Government. We cannot say that informed deliberation inter alia on the best measures through which online mass hate and violence in their geographical jurisdiction can be addressed would not be within the Committee’s area of competence as it would undermine the very purpose of a vital democratic polity. 211. The unfortunate communal riots between 24th and 29th February, 2020 in various parts of Delhi, led to the death of 53 persons, caused significant damage to public and private property, disruptions to schools, transport, water supply, medical and other civic amenities.146 The complexity of communal tensions and their wide-ranging ramifications is a matter affecting citizens of Delhi and it cannot be said that the Government of NCT of Delhi cannot look into the causal factors in order to formulate appropriate remedial measures. Appropriate recommendations made by the State Government in this regard could be of significance in the collaborative effort between the Centre and the State to deal with governance issues. It is in that context that this Court had recognised that certain local interests are best addressed by the elected representatives of the concerned State: “130. Sawer’s “federal principles” reiterate this concept of “Power of the centre is limited, in theory at least, to those matters which concern the nation as a whole. The regions are intended to be as free as possible to pursue their own local 146 Delhi Minorities Commission, Government of NCT of Delhi, Report of the DMC Fact-Finding Committee on North-East Delhi Riots of February, 2020, :accessible at: https://archive.org/details/dmc-delhi-riot-fact-report-2020. 212. We are of the view that because of the pervasive impact of the riots, the Committee could legitimately attend to such grievances encompassing varied elements of public life. Thus, it would be entitled to receive information and deliberate on the same to examine their bearing on peace and harmony without transgressing into any fields reserved for the Union Government in the Seventh Schedule. 213. Let us now turn to the Terms of Reference. In the larger context of what the Committee is supposed to do, reliance was placed on paragraph 4(i), i.e., to consider the factors and situations which have the potential to disturb communal harmony in the National Capital Territory of Delhi and suggest measures to eliminate such factors and deal with such situations with the object of establishing harmony among different religious or linguistic communities or social groups. This is not purely a law and order or policing aspect and has several connotations. It was not necessary at that stage for the Terms of Reference to spell out as to what aspects it would legislate upon (having legislative competence) and on what aspects it would like to consider making recommendations. That would have been a pre-hearing of the issue. 214. If we turn to para 4(i) of the Terms of Reference, the object was to consider petitions, complaints or reports from the members of the public, social organisationsand journalists on the matter in issue where communal riots have occurred. Once again this was intrinsically linked to the larger issue. However, the real troublesome aspect is para 4(vii), which we reproduce, once again, to appreciate the context: “(vii) to recommend action against such persons against whom incriminating evidence is found or prima facie case is made out for incitement to violence” 215. Clearly it is not within the remit of the Assembly to recommend action against such persons against whom incriminating evidence is found or prima facie case is made out for incitement of violence. This is an aspect purely governed by policing. It is the function of the police to locate the wrong doer by investigation and charge them before a competent court and this is what has really given a handle to the petitioners to approach this Court. 216. We have noticed the submissions of Dr. Singhvi and Dr. Dhavan, which really amount to saying that this paragraph is insignificant as no action can be taken. If that be so, then in that sense, this paragraph does not stand even though the petitioners may not have directly assailed it. In order to justify the legislative competence and the remit of the Committee, the respondents have practically given up this para 4(vii) and we record the same and make it clear that this cannot be part of the remit of the Committee. 217. We may say that wiser advice prevailed in issuing the New Summons dated 03.02.2021, which consciously specified the diluted area of inquiry, conscious of the aforesaid limitation and if we may say, rightly so. What it takes care of is that it is not addressed to Petitioner No.1 directly but instead it calls for the views of an authorised representative of Petitioner No. 2, Facebook India. It has rightly used the expression “requested” and also used the expression “could” in the context of initiation of proceedings for breach of privilege and has categorically withdrawn the previous notices and summons. On the lighter side, possibly Dr. Singhvi’s advice was adhered to. 218. The result of the aforesaid is that fallacies in the notices stand 219. We have already noticed that the statements made by the Chairman of the Committee during the press conference cannot be diluted or brushed aside in a manner as learned counsel for the respondents seek to do. No doubt some part of the press conference refers to the complaints received and statements made by persons deposing before the Committee. But, at the same time, it was stated by the Chairman that the material placed before the Committee had resulted in a “preliminary conclusion”. Thereafter it was stated that “prima facie it seems that Facebook has colluded with vested interests during Delhi riots”. It does “Facebook should be treated as a co-accused and investigated as a co-accused in Delhi riots investigation.” and “As the issue of Delhi riots is still going in the court, a supplementary chargesheet should be filled (sic) considering Facebook as a co-accused.” The aforesaid statements and conclusions are completely outside the remit of the Committee and should not have been made. That it may give rise to apprehension in the minds of the petitioners can also not be 220. The further utterances also show that the findings have already given out of the proceedings including 3-4 significant important aspects including posting by Facebook of incriminating material on the platform in spite of continuous request to remove the same and that Facebook colluded with such web news channels, which has a sole agenda to confuse content and disturb social harmony. The Chairman also states that material has come before them which shows that wherever there is content of harmonious nature, Facebook removes that content while disharmonious content is promoted. A reference has also been made to the race clashes in the US. 221. Towards the end it is also sought to be conveyed that in view of the “incriminating material”, the representatives of Facebook would be called upon to satisfy principles of natural justice before conviction. The prima facie view expressed is that Facebook is a co-accused and hence investigations regarding their role during the Delhi riots should be carried out and after such investigation, a supplementary chargesheet should be 222. If it may be said, it is as if the Committee was convinced that Facebook must be prosecuted, and as if the Committee itself was the prosecutor with a right to direct the filing of a supplementary chargesheet. It was meeting as a formality to give a right of hearing before doing so, i.e. “before taking any action.” What more is to be said! 223. We can only say that such statements are hardly conducive to fair proceedings before the Committee and should have been desisted from. This is especially so as that was not even the legislative mandate, and the Assembly or the Committee had no power to do any of these things. 224. In view of the aforesaid, thus, while giving the widest amplitude in respect of inquiry by a legislative committee, we are constrained to put certain fetters in the given factual scenario otherwise tomorrow the proceedings itself can be claimed to be vitiated. 225. The importance of Committees cannot be over emphasised. The Kalpana Mehta148 case discusses this issue in some depth. Committees seek to perform the function of holding the Government accountable to implement its policies, and its duties under legislation and the performance of governmental agencies can be the subject matter of 148 Supra note 20. reports formulated by these Committees. However, in the context of the present case, we are dealing with a scenario where on a particular subject matter there is no legislative mandate to enact a legislation even if, in a broader sense, an inquiry is made. Thus, the aspect of holding the State Government accountable is not really envisaged as per the Terms of Reference. Rather, it seems as if the Committee seeks to hold certain private players responsible for a law and order scenario, which is within the domain of the Central Government. Therefore, the general principles applicable to Committees would apply with a little difference in the given 226. We are conscious of the rationale emphasised that the wide jurisdictions of the High Court under Article 226 or of this Court under Article 32 of the Constitution should not normally be exercised in a manner oblivious to the enormous work carried out by the Parliamentary Committees “in the field”. An Assembly, more so in the nature of Delhi Assembly with its own peculiarities (i.e., the exclusion of certain powers), even if given the widest amplitude and powers which a Committee should have; cannot step on the toes or rather shoes of an entity having exclusive jurisdiction by reason of List I. 227. We cannot lose sight of the repeated brushes which have occurred between the current dispensation in the Central Government and the State Government and the Courts being called upon to define the contours of their powers. Sagacious advice to act in concert appears to have fallen on deaf ears. We are, faced with a scenario which is a little different from the normal and, thus, much as we would not like to, some fetters have to be placed qua the exercise sought to be undertaken by the Committee in question. One set of fetters is not required because it has already been conceded that para 4(vii) of the Terms of Reference is otiose and that there will be no endeavour to prosecute. However, another set of fetters become necessary because of the history recorded aforesaid and the significance of the press conference given by the Chairman of the Committee. The subject matter went much further than it ought to have and as a result, we have analysed the press conference in detail to repel the contention on behalf of the respondents that this aspect should not be taken seriously or is more preemptory in nature. We are clearly of the view that it is not so. The Committee cannot have a misconception that it is some kind of a prosecuting agency which can embark on the path of holding people guilty and direct the filing of supplementary chargesheet against them. We, thus, opine that this aspect has to be kept in mind by the Committee so as to not vitiate future proceedings and give rise to another challenge. We are of the view that in any eventuality, as speculative as it may be, if the Committee seeks to traverse the path relating to the excluded Entries, i.e. law and order and police, any representative of Facebook who would appear before the Committee would be well within their right to refuse to answer the query and such an approach cannot be taken amiss with possibility of inviting privilege proceedings. It is a delicate balance to follow and we do not seek to give an excuse to the representative of the petitioners to not answer questions and frustrate the proceedings before the Committee qua the petitioners. However, at the same time, we give this very limited protection were the Committee to embark on these prohibited areas. We are quite confident that such an eventuality will not arise, given the important role that the Committee is performing and that it will accept the sagacious advice. So much and not further. 228. We have penned down our views on the issues raised by the petitioners, but in view of the elaborate arguments and length of the judgment, we consider it appropriate to summarise the ratio/directions in I. There is no dispute about the right of the Assembly or the Committee to proceed on grounds of breach of privilege per se. II. The power to compel attendance by initiating privilege proceedings is an essential power. III. Members and non-Members (like the petitioners) can equally be directed to appear before the Committee and depose on oath. IV. In the given facts of the case, the issue of privileges is premature. Having said that, the insertion of para 4(vii) of the Terms of Reference taken along with the press conference of the Chairman of the Committee could legitimately give rise to apprehensions in the mind of the petitioners on account of which a caveat has been made. V. Canvassing a clash between privilege powers and certain fundamental rights is also preemptory in the present case. VI. In any case, the larger issue of privileges vis-a-vis the right of free speech, silence, and privacy in the context of Part III of the Constitution is still at large in view of the reference to the larger 149 Supra note 46. VII. The Assembly admittedly does not have any power to legislate on aspects of law and order and police in view of Entries 1 and 2 of List II in the Seventh Schedule inter alia being excluded. Further, regulation of intermediaries is also subject matter covered by the I.T. VIII. The Assembly does not only perform the function of legislating; there are many other aspects of governance which can form part of the essential functions of the Legislative Assembly and consequently the Committee. In the larger context, the concept of peace and harmony goes much beyond law and order and police, more so in view of on- the-ground governance being in the hands of the Delhi Government. IX. Para 4(vii) of the Terms of Reference does not survive for any opinion of the Committee. It will not be permissible for the Committee to encroach upon any aspects strictly within the domain of Entries 1 and 2 of List II of the Seventh Schedule. As such, any representative of the petitioners would have the right to not answer questions directly covered by these two fields. 229. That brings us to the end of this saga. The writ petition is accordingly dismissed, subject to terms aforesaid. 1. COVID times have been difficult for everyone. The Judiciary and the Bar are no exception. It has been a contributing factor in there being a period of four months between reserving the judgment and pronouncement of the order, but that is not the only reason. 2. We have noticed the presumptive nature of grievances and the invitation to the court to opine on the same with undoubtedly a handle being provided by the respondents. The saga of the hearing lasted 26 hours – which is a lot of judicial time. Daily time period was recorded. Apart from pleadings, there were written synopses, additional written synopses, rejoinders and replies filed liberally by both parties. The convenience compilations themselves were very voluminous, in contradiction to their very purpose. Our concern is if this is how the proceedings will go on in the future, it will be very difficult to deal with the post COVID period, which is likely to see a surge in the number of cases pending adjudication. 3. What is the way forward? We do believe that there needs to be clarity in the thought process on what is to be addressed before the Court. Counsels must be clear on the contours of their submissions from the very inception of the arguments. This should be submitted as a brief synopsis by both sides and then strictly adhered to. Much as the legal fraternity would not want, restriction of time period for oral submissions is an aspect which must be brought into force. We really doubt whether any judicial forum anywhere in the world would allow such time periods to be taken for oral submissions and these be further supplemented by written synopsis thereafter. Instead of restricting oral arguments it has become a competing arena of who gets to argue for the longest time. 4. We have looked into this aspect to see if there are any international best practices and would like to refer to some of them without a very expansive discussion. 5. Article 6 of the European Convention on Human Rights, while recognising the right of fair trial and public hearing, qualifies it inter alia to be completed “within a reasonable time”. 150 This is intrinsically linked to administering justice without delays. Delay in judicial proceedings has been the bane of our country and there cannot be a refusal to part ways from old practices especially when they have outlived their purpose. It is the litigants who bear the costs of our complex and prolonged adjudicatory process. We are conscious of the equal responsibility of this side of the bench – it is the need of the hour to write clear and short judgments which the litigant can understand. The Wren & Martin principles of precis writing must be adopted. But then how is this to be achieved if the submissions itself go on for hours on end with vast amounts of material being placed before the Court; with the expectation that each aspect would be dealt with in detail failing which review applications will be filed (not that they are not 150 Article 6, European Convention on Human Rights, 1953. filed otherwise!) We are weighed down by judicial precedent. Often a reference is made to the judgment of the Privy Council or the earlier years of the Supreme Court, which saw short and crisp judgments but then, the volume of precedents we face today was not present then. In a technological age like ours, all that is required is to instruct the junior counsel to take out all judgments on a particular point of view and submit it to the court in a nice spiral binding. On every aspect there may be multiple judgments. In our view if the proposition of law is not doubted by the Court, it does not need a precedent unless asked for. If a question is raised about a legal proposition, the judgment must be relatable to that proposition – and not multiple judgments. The other scenario is if the facts of the cited judgments are so apposite to the facts of the case that it could act as a guiding principle. In R. v. Erskine; R. v. Williams 151 a well-known aphorism of Viscount Falkland in 1641 was noticed “if it is not necessary to refer to a previous decision of the court, it is necessary not to refer to it. Similarly, if it is not necessary to include a previous decision in the bundle of authorities, it is necessary to exclude it. That approach will be rigidly enforced.” This forms the basis of the criminal practice directions in the UK which apply to all criminal matters before the Court of Appeals, Crown Court, and the Magistrate’s Court. Criminal practice directions (vii) clarifies that if a judgment does not refer to a cited case, it is not that the court has not referred to it but rather, that the court was not assisted by it. We adopt the same as we can say no better. 6. The contribution to the development of law can be nurtured by comprehensible precedent. There may be times when the complexity of matters gives rise to complex opinions. But we find that judgments are becoming more complex and verbose only on account of large number of precedents cited and the necessity to deal with them and not merely refer to them as is done in other countries. 7. We have for long discussed case management but seldom is it followed in its true letter and spirit. This may possibly be because of the large volumes of cases but then this is all the more reason for better 8. The US Supreme Court is more restrictive in its time frame – not that UK Courts are far behind. The norms and the traditions take care of the requirement of restrictive time frames to address submissions; which are preceded by the contours of arguments given in the written synopsis and the material sought to be relied upon. We do not doubt that lawyers think on their feet but then given the current milieu, there has to be clarity before the lawyers get on their feet keeping a little leeway in mind for something which may evolve during the arguments. 9. The Supreme Court of India as on 01.05.2021 had 67,898 pending matters.152 The time spent on routine matters leaves little time to settle legal principles pending before larger Benches that may have an impact down the line on the judicial system. We have a straight example of this with a reference to a larger Bench pending in N. Ravi153. 10. Another matter of concern is prolonged interim proceedings. In criminal matters, even bail matters are being argued for hours together and at multiple levels. The position is no different in civil proceedings where considerable time is spent at interim stage when the objective should be only to safeguard the rights of the parties by a short order, and spend the time on the substantive proceedings instead which could bring an end to the lis rather than on the interim arrangement. In fact, interim orders in civil proceedings are of no precedential value. This is the reason it is said that we have become courts of interim proceedings where final proceedings conclude after ages- only for another round to start in civil proceedings of 152Statistics, Monthly Pending Cases, Types of matters pending in Supreme Court of India as on 01.05.2021 , Supreme Court India, accessible at: 153 Supra note 46. 11. The purpose of our post script is only to start a discussion among the legal fraternity by bringing to notice the importance of succinctly framed written synopsis in advance, and the same being adhered to in course of oral arguments to be addressed over a limited time period and more crisp, clear and precise judgments so that the common man can understand what is the law being laid down. After all, it is for ‘the common man’ that the judicial system exists.
The Supreme Court said that social media manipulation puts elections and voting at risk. This was part of their decision on Thursday in a case called Facebook vs. Delhi Assembly. Companies like Facebook must be responsible to the people who give them so much power. Facebook has been very important for free speech, helping people share their views and avoid government control. However, the court, led by Justice Sanjay Kishan Kaul, also pointed out that Facebook has become a place for harmful messages, ideas, and opinions. To show what they meant, the Court mentioned the argument around the 2016 US Presidential elections. There were claims that Russia interfered, possibly with help from platforms like Facebook. As an introduction to their decision, the court, which also included Justices Dinesh Maheshwari and Hrishikesh Roy, stated that Facebook is India's most popular social media platform, with around 270 million users. The court then shared these thoughts: Companies like Facebook must be responsible to the people who give them so much power. Such great power must come with responsibility. Companies like Facebook must be responsible to those who give them this power. While Facebook has been important for free speech, helping people share their views and avoid government control, we can't forget that it has also become a place for harmful messages, ideas, and opinions. A strong democracy works best when citizens can make informed decisions. These decisions should come from understanding many different viewpoints. The huge amount of information available today creates new challenges. It subtly changes how we discuss topics where people have very different opinions. So, while social media helps citizens and lawmakers talk to each other, it has also become a tool for different groups. Facebook has also become a place for harmful messages, ideas, and opinions. Facebook has been key for free speech, giving a voice to those without one and helping people avoid government control. But we can't forget it has also become a place for harmful messages, ideas, and views. A successful democracy needs citizens to make smart choices. These choices should come from considering many different opinions and ideas. The huge amount of information online today creates new problems. It subtly changes how we discuss topics where opinions are very divided. So, while social media helps citizens and leaders talk openly, it also serves as a tool for various groups. These groups know how to use its power to cause trouble. This leads to a strange outcome: extreme ideas become common, spreading false information. Stable democracies around the world are seeing these effects and are worried. Elections and voting, which are the core of a democratic government, are now at risk because of social media manipulation. This has led to big discussions about how much power platforms like Facebook have. People also worry that their business models collect private data and try to grab everyone's attention. A stable society can be severely damaged when citizens become 'divided and stuck' by these online discussions, splitting society apart. Less informed people might not check if information from friends is true, or they might believe everything popular leaders say without question. The court also mentioned that countries like Australia, the US, the UK, and the EU have tried to manage platforms like Facebook better. However, these efforts are still new. Studies are being done to understand how these platforms work and how much trouble they can cause. For instance, Australia recently tried to create a law. This law would have made Facebook pay news publishers for using their stories. Australia saw this law as a way to control Facebook's strong influence on politics, society, and democracy. In response, Facebook stopped all news on its platform in Australia. After some back and forth, they found a compromise. The US also had big debates after the 2016 Presidential elections. There were claims that Russia interfered, possibly with help from platforms like Facebook. Last year, the EU created new proposed laws, called the Digital Services Act and Digital Markets Act. These laws set rules for platforms to follow, the court explained. Also from the Judgment: The Supreme Court supported the Delhi Assembly's request for Facebook to appear. The court stated that Delhi cannot handle more riots, and Facebook's role in them must be examined. The Supreme Court said Facebook cannot break India's 'unity in diversity' by claiming it didn't know or didn't play a key part. In the Facebook vs. Delhi Assembly case, the Supreme Court ruled that the Assembly's job is not just to make laws. It can also investigate matters. The Supreme Court stressed that the legal system is for everyone. It emphasized that court decisions should be short and clear, and oral arguments should be limited.
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1. Challenging the order of the High Court confirming the order of the Executing Court dismissing their application under Section 47 of the Code of Civil Procedure, 1908 (hereinafter referred to as the ‘Code’), the legal representatives of the judgment­debtor have come up with the above appeal. Incidentally, this litigation is exactly half a century old (it started with a suit filed in 1971) and this appeal arises out of the fifth round of litigation at the stage of execution of a simple money decree and we wish that it is the knock out round. 2. We have heard Mr. Rauf Rahim, learned counsel for the appellants, and Mr. Raja Chatterjee, learned counsel appearing for the respondent nos.1­7/auction purchasers. 3. One Ms. Rama Rani Devi, filed a simple suit for recovery of money in Money Suit No.16 of 1971 on the file of the District Munsif Court, Bongaon, District 24 Parganas, West Bengal, against one Sasadhar Biswas, for recovery of a sum of Rs.3000/­. The suit was decreed ex parte on 25.07.1974, directing the defendant to pay the decretal amount in six equal instalments with a default clause. 4. Since the decree was not honoured, the decree holder filed an execution petition in Execution Case No.2 of 1975, praying for the attachment and sale of 17 decimal of land (approximately about 7450 Sq.ft.) in Plot No.26/159 under Khatian No.2555 of Mouza Bongaon. It appears that a sale proclamation was issued by the executing court on 16.07.1975 after which Sasadhar Biswas, the Judgment­debtor filed an application in Miscellaneous Case No.151 of 1975 assailing the sale proclamation issued by the executing court, on the ground of material irregularity and fraud. But the same was dismissed on 03.09.1975. 5. An auction sale was held on 30.05.1979, in which two brothers by name, Sachindra Nath Mukherjee and Dulal Kanti Mukherjee became the highest bidders, they having offered a sum of Rs.5500/­, as the highest bid amount. The highest bidders also deposited the money into court. 6. Mr. Sasadhar Biswas, the judgment­debtor then filed an application on 27.06.1979 under Order XXI, Rule 90 read with Section 152 of the Code praying for setting aside the auction sale on the ground of irregularities in the sale proclamation. During the pendency of this petition in Miscellaneous Case No.47 of 1979, the judgment­debtor Sasadhar Biswas entered into a compromise on 19.07.1980, not with the decree holder but with the auction purchasers. The memo of compromise reads as follows:­ “The petitioner and the auction purchaser Opp. party do settle the suit mutually in the following manner. 1) If the petitioner debtor pays the entire money due to the auction purchaser opposite part in cash within 15 th December or if he deposits it in their credit in the court and the auction shall be revoked and the original execution case shall be disposed on full satisfaction. 2) Otherwise that is if the petitioner debtor does not pay the entire money due to the auction purchaser opposite party in cash within 15th December on deposits that amount in court within that date then the said auction shall remain effective and this present suit shall be dismissed with costs. Hence it is prayed that according to the contents of this solenama and for compliance with the conditions of the solenama the final date of this suit may be kept on 16.12.80 on the expiry of the 15th December.” 7. It is relevant to point out that the amount of money deposited by the auction purchasers into court was Rs.5500/­, but the decree debt was around Rs.3360/­. Though the compromise memo entered into by the judgment­debtor with the auction purchasers did not refer to the decree debt, but repeatedly mentioned the words, “entire money due to the auction purchasers”, the judgment­debtor admittedly deposited on 15.12.1980, only a sum of Rs.3700/­, purportedly on the basis of the calculation provided by the court officer in terms of Order XXI, Rule 89 of the Code. 8. Since the deadline for payment of the entire money due to the auction purchasers expired on 15.12.1980 and also since the judgment­debtor deposited only a sum of Rs.3700/­, as against the amount of Rs.5500/­ deposited by the auction purchasers, the executing court dismissed the application under Order XXI, Rule 90 in Miscellaneous Case No.47 of 1979. 9. But within four days, the executing court again passed an order on 20.12.1980 recalling the order dated 16.12.1980 and recording full satisfaction in the execution. Shocked at this order, the auction purchasers filed an application on 22.12.1980 for recalling the order dated 20.12.1980, passed purportedly behind their back. This application was dismissed by the executing court on 12.09.1981. Challenging the said order dated 12.09.1981, passed by the executing court, the auction purchasers filed a revision in C.R.No.3577 of 1981 on the file of the High Court. The High Court allowed the revision by an order dated 21.06.1983 and remanded the matter back to the executing court, for re­hearing the application of the auction purchasers for recall of the order dated 10. The executing court passed a fresh order dated 11.07.1987 rejecting the application of the auction purchasers on merits, but this order was set aside by the High Court in a revision in C.O.No.2487 of 1987, by an order dated 20.12.1990. By this order the High Court held that the judgment­debtor failed to honour the commitment made in the compromise memo to deposit the entire amount due to the auction purchasers and that therefore the auction sale should be confirmed in favour of the auction purchasers. It may be relevant to extract Clause No.4 of the operative portion of the order of the High Court in C.O. No.2487 of 1987 dated 20.12.1990. It reads as follows:­ 4. None of the parties shall have any claim whatsoever as against the applicant in respect of the purchased property which shall be deemed to be his absolute property on and from the expiry of 15th December, 1980.” 11. Thereafter, a mention was made before the learned judge, on behalf of the counsel for the judgment­debtor seeking recall of the order in C.O.No.2487 of 1987 on the ground that the counsel was not present at the time of disposal of the revision petition. Therefore, the leaned Judge again heard the matter and passed a detailed order dated 08.08.1991, reiterating his earlier order. A special leave petition filed against the order dated 08.08.1991, in SLP(C)No.18092 of 1991 was dismissed by this Court on 24.02.1992. The judgment­debtor moved a petition for review before this Court but the same was also dismissed on 12.08.1992. Thus, the 1st round of litigation kicked off with an application under Order XXI, Rule 90, in the year 1979, came to an end in 1992. 12. The judgment­debtor then started the 2 nd round by filing a suit in suit No.249 of 1992 on the file of the District Munsif, Bongaon, for a declaration that the auction sale is void but the said suit was dismissed as abated, on 02.12.1992. 13. In the meantime, the auction purchasers filed petitions for the issue of sale certificate and the judgment­debtor filed a petition under Order XXI, Rule 29 for stay of execution proceedings. But the application of the judgment­debtor was dismissed and the applications of the auction purchasers were allowed by the executing court by an order dated 31.01.1994. A direction was given for the issue of a sale certificate to the auction purchasers in terms of Order XXI, Rule 94. Accordingly, a sale certificate was issued on 08.02.1994. The sale certificate was also duly registered. 14. Challenging the order dated 31.01.1994 passed by the executing court directing the issue of sale certificate, the judgment­ debtor filed a revision in C.O.No.1232 of 1994 on the file of the High Court. Though the High Court entertained the revision and initially granted a stay of further proceedings in the execution, the High Court eventually dismissed the revision petition by an order dated 05.09.2001 holding that the earlier order in C.O.No.2487 of 1987 dated 08.08.1991 had already clinched the issue. With this order, the third round came to an end. 15. The 4th round began with an application by the auction purchasers seeking delivery of possession. This application was allowed by the executing court on 15.03.2002, directing delivery to be effected by 16.04.2002. Since the judgment­debtor had, in the meantime, constructed a building on the land sold in execution of the decree, the executing court directed the building so constructed illegally, to be demolished. 16. The order of the executing court for delivery of possession was challenged by the appellants herein (the legal representatives of the judgment­debtor) in a Civil Petition No.106 of 2002 before the Additional District Judge, Barasat. The same was dismissed on 26.02.2003. This order was challenged before the High Court in C.O.No.1276 of 2003, but the same was dismissed by the High Court by an order dated 11.02.2005 pointing out that the issue has already been clinched by the previous orders. The special leave petition SLP(C) No.12925 of 2005 filed against the said order, was dismissed by this Court on 18.07.2005. The petition seeking review of the said order was also dismissed by this Court on 10.01.2006. Thus, the fourth round of litigation came to a close. 17. Not to be put off by repeated failures, the appellants herein, like the tireless Vikramaditya, (who made repeated attempts to capture ‘Betal’) started the present round (hopefully the final round), by moving a petition in Miscellaneous Case No.15 of 2006 before the executing court under Section 47 of the Code, on the ground that the mandate of Order XXI Rule 64 was not followed in the auction and that therefore a jurisdictional error has crept in and that the same could be corrected at any point of time and at any stage of the proceeding. This petition filed on 10.02.2006 was dismissed by the executing court by an order dated 20.01.2007. 18. Challenging the said order dismissing their application under Section 47, the appellants filed a revision in C.O. No.1115 of 2007 on the file of the High Court. This revision was dismissed by the High Court by an order dated 28.03.2008, on the ground that the issue, never having been raised earlier, cannot be allowed to be raised at this distance of time. It is against the said order of the High Court dated 28.03.2008, in C.O.No.1115 of 2007 that the legal representatives of the judgment­debtor have come up with the above appeal. 19. The only mantra, by the recitation of which, the appellants hope to succeed in this half­a­century old litigation, is Order XXI, Rule 64 of the Code. This provision enables an executing court to order “that any property attached by it and liable to sale or such portion thereof as may seem necessary to satisfy the decree, shall be sold and that the proceeds of such sale or a sufficient portion thereof shall be paid to the party entitled under the decree to receive the 20. It is the contention of the learned counsel for the appellants that Order XXI, Rule 64 casts not a discretion, but an obligation, to sell only such portion of the property as may be sufficient to satisfy the decree. In support of this proposition, the learned counsel for the appellants cited a few decisions, which we shall now deal with. In Takkaseela Pedda Subba Reddi vs. Pujari Padmavathamma & Ors1, this Court held that the, “executing court derives jurisdiction to sell properties attached, only to the point at which the decree is fully satisfied”, and that the words, “necessary to satisfy the decree”, clearly indicate that no sale can be allowed beyond the decretal amount mentioned in the sale proclamation. This Court went further to hold that the issue flowing out of Order XXI, Rule 64 goes to the very root of the jurisdiction of the executing court and that therefore the fact that an objection in this regard was not raised before the executing court is not sufficient to put him out of 21. But the aforesaid decision arose out of a case where the decretal amount for which the properties were to be sold was mentioned in the warrant of sale and sale proclamation as Rs.16,715/­. The lands in two villages namely Devanoor and Gudipadu were brought to sale. The sale of lands in one village alone fetched Rs.16,880/­. Yet the executing court proceeded to sell the lands in Gudipadu also. It is in that context that this Court held as aforesaid. 22. The decision in Ambati Narasayya vs M. Subha Rao & Anr2, while following T.P. Subba Reddi (supra), went a step further and held that if the property is large and the decree to be satisfied is small, the court must bring only such portion of the property, the proceeds of which would be sufficient to satisfy the decree debt and that it is immaterial whether the property is one or several. 23. But the decision in Ambati Narasayya (supra) also arose out of a particular context. The land that was sold in Ambati Narasayya (supra) was of the extent of 10 acres and it was sold for Rs.17,000/­ for the satisfaction of a claim of Rs.2400/­. The land of the extent of 10 acres is certainly large enough and is capable of division. But in the case on hand, the extent of land is only 17 decimals, working out to (7450 Sq.ft.). 24. It must be pointed out at this stage that under Order XXI, Rule 66 (1) the executing court should cause proclamation of the intended sale to be drawn up in the language of the court. Under sub rule (2) of Rule 66 of Order XXI, such proclamation should be drawn up after notice to the decree holder and the judgment­debtor. 66. Proclamation of sales by public auction.­ (1) Where any property is ordered to be sold by public auction in execution of a decree, the Court shall cause a proclamation of the intended sale to be made in the language of such Court. (2) Such proclamation shall be drawn up after notice to the decree­holder and the judgment­debtor and shall state the time and place of sale, and specify as fairly and accurately as (a) the property to be sold, or, where a part of the property would be sufficient to satisfy the decree, such part; (b) the revenue assessed upon the estate or part of the estate, where the property to be sold is an interest in an estate or in part of an estate paying revenue to the Government; (c) any incumbrance to which the property is liable; (d) the amount for the recovery of which the sale is ordered; (e) every other thing which the Court considers material for a purchaser to know in order to judge of the nature and value of Provided that where notice of the date for settling the terms of the proclamation has been given to the judgment­ debtor by means of an order under rule 54, it shall not be necessary to give notice under this rule to the judgment­ debtor unless the Court otherwise directs: Provided further that nothing in this rule shall be construed as requiring the Court to enter in the proclamation of sale its own estimate of the value of the property, but the proclamation shall include the estimate, if any, given, by either or both of the parties. (3) Every application for an order for sale under this rule shall be accompanied by a statement signed and verified in the manner hereinbefore prescribed for the signing and verification of pleadings and containing, so far as they are known to or can be ascertained by the person making the verification, the matters required by sub­rule (2) to be specified in the proclamation. (4) For the purpose of ascertaining the matters to be specified in the proclamation, the Court may summon any person whom it thinks necessary to summon and may examine him in respect to any such matters and require him to produce any document in his possession or power relating thereto. 25. It is important to note here that two significant changes were made to Order XXI, Rule 66 by Act 104 of 1976 w.e.f. 01.02.1977. Both these changes were made to sub rule (2) of Rule 66. One of the changes was the insertion of the words “or where a part of the property would be sufficient to satisfy the decree, such part” in clause (a) of sub rule (2). The second change was the insertion of two provisos under sub rule (2). 26. As an aside, it may be noted that the second proviso to sub rule (2) inserted by Central Act 104 of 1976, was redundant in so far as Calcutta is concerned, since Calcutta already had a similar proviso inserted through a local amendment. 27. The first proviso under sub rule (2) of Rule 66 of Order XXI gives a discretion to the court not to give notice under Order XXI, Rule 66 to the judgment­debtor, if a notice for settling the terms of the proclamation had been given to the judgment­debtor by means of an order under Rule 54. 28. Rule 54 of Order XXI prescribes the method of attachment of immovable property. Sub rule (1A) of Rule 54, also inserted by Act 104 of 1976, mandates that the prohibitory order under sub rule(1) shall require the judgment­debtor to attend court on a specified date to take notice of the date to be fixed for settling the terms of the proclamation of sale. This is why the first proviso to sub rule (2) of Rule 66 gives a discretion to the court to dispense with a second notice under Order XXI, Rule 66(2). 29. Keeping in mind the above statutory prescriptions, if we come to the facts of the case, it is seen that the appellants have filed as additional document in Annexure A­3, the copy of the extract of relevant orders passed in Money Execution Case No.2 of 1975 by the District Munsif Court, Bongaon. This document reveals that on 10.01.1975, the executing court ordered the issue of notice of attachment under Order XXI, Rule 54 of the Code. It was only thereafter that the court directed on 16.07.1975, the issue of sale proclamation under Order XXI, Rule 66. 30. Thereafter, the judgment­debtor filed a petition under Section 47 of the Code on 02.09.1975 (this was the first petition under Section 47, while the appeal on hand arises out of the second petition 31. The executing court, at the instance of the judgment­debtor also granted stay of further proceedings on 26.09.1975. But it is not clear from Annexure A­3 of the additional documents filed by the appellants, as to when the said petition under Section 47 was disposed of. However it is clear from the order passed on 22.04.1978 that the decree holder was directed to take further 32. Even after directing the publication of the sale proclamation in the newspaper, the executing court was more than fair to the judgment­debtor, as could be seen from the order passed on 16.03.1979. On the said date the executing court found that in the newspaper publication, the case number was wrongly mentioned. Therefore, the court directed the issue of fresh sale proclamation and fresh publication. It is only thereafter that the judgment­debtor moved a petition on 30.05.1979 for postponement of the auction. It was rejected and the court proceeded with the auction. The decree holder himself participated in the auction after getting permission from the court. However, it is only the third parties who succeeded in getting the sale confirmed. 33. The above sequence of events would show that the judgment­ debtor had sufficient opportunity to object to the inclusion of the entire property when an order was passed under Order XXI, Rule 54. Subsequently he had an opportunity to object to the inclusion of the whole of the property, by taking advantage of the amended clause (a) of sub rule (2) of Rule 66 of Order XXI, which speaks about a part of the property that would be sufficient to satisfy the decree. But the judgment­debtor despite filing a petition under Section 47 on 02.09.1975, did not point out how the property being a vacant land of an extent of 17 decimals could have been divided. It must be pointed out at the cost of repetition that the notice of attachment under Order XXI, Rule 54 was ordered on 10.01.1975 and the sale proclamation under Order XXI, Rule 66 was directed to be issued on 16.07.1975. It is only thereafter that the first petition under Section 47 was filed on 02.09.1975. Therefore, the appellants cannot compare themselves to the judgment­debtors in T.P. Subba Reddi or Ambati Narasayya (supra). 34. As we have pointed out elsewhere, the objection relating to Order XXI, Rule 64 has been raised by the appellants for the first time in the 5th round of litigation in execution. In the 1 st round, the appellants exhausted the gun­powder available under Order XXI, Rule 90, by taking recourse to a compromise with the auction purchasers, after alleging material irregularity in the conduct of the auction. The 1st round which commenced in 1979 came to an end in 1992 with the dismissal of SLP(C) No.18092 of 1991. In the order of the High Court dated 20.12.1990 that was under challenge in the said SLP, the High Court made it clear that none of the parties shall have any claim whatsoever as against the auction purchaser in respect of the purchased property (we have extracted this in Para 10 above). 35. The 2nd round was kick­started with a suit in Suit No.249 of 1992 for a declaration that the auction sale was void. This is despite the express bar of a separate suit, under Section 47(1) of the Code. But the 2nd round got aborted with the dismissal of the suit due to abatement. 36. The 3rd round started with objections to the issue of sale certificate and it came to an end in the year 2001. The 4 th round commenced when the auction purchasers moved the executing court for delivery of possession. Delivery was ordered by the executing court on 15.03.2002. This round came to a close with the dismissal of a SLP in the year 2005 and a review petition in the year 2006, arising out of the dismissal of a revision petition challenging the order of the executing court for delivery of possession. It is only thereafter that the 5th round of litigation was started by the appellants by filing a petition under Section 47 and raising the bogey of “jurisdictional error” on account of non­compliance with the mandate of Order XXI, Rule 64. In other words, the appellants have now exhausted almost all provisions available to a judgment­debtor to stall execution and the case on hand is fit to be included in the syllabus of a law school as a study material for students to get equipped with the various provisions of the Code relating to 37. The appellants cannot be allowed to raise the issue relating to the breach of Order XXI, Rule 64 for the following reasons:­ (i) A judgment­debtor cannot be allowed to raise objections as to the method of execution in instalments. After having failed to raise the issue in four earlier rounds of litigation, the appellants cannot (ii) As we have pointed out elsewhere, the original judgment­ debtor himself filed a petition under Section 47, way back on 02.09.1975. What is on hand is a second petition under Section 47 and, hence, it is barred by res judicata. It must be pointed out at this stage that before Act 104 of 1976 came into force, there was one view that the provisions of Section 11 of the Code had no application to execution proceedings. But under Act 104 of 1976 Explanation VII was inserted under Section 11 and it says that the provisions of this Section shall apply to a proceeding for the execution of a decree and reference in this Section to any suit, issue or former suit shall be construed as references to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree; (iii) Even in the 5th round, the appellants have not pointed out the lay of the property, its dimensions on all sides and the possibility of dividing the same into two or more pieces, with a view to sell one or more of those pieces for the realisation of the decree debt; (iv) The observations in paragraph 4 of the order of the High Court dated 20.12.1990 in C.O.No.2487 of 1987 that, “none of the parties shall have any claim whatsoever as against the applicant in respect of the purchased property which shall be deemed to be his absolute property on and from the expiry of 15th December, 1980”, has (v) Section 65 of the Code says that, “where immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute”. The sale of a property becomes absolute under Order XXI, Rule 92(1) after an application made under Rule 89, Rule 90 or Rule 91 is disallowed and the court passes an order confirming the same. After the sale of an immovable property becomes absolute in terms of Order XXI, Rule 92(1), the Court has to grant a certificate under Rule 94. The certificate has to bear the date and the day on which the sale became absolute. Thus a conjoint reading of Section 65, Order XXI, Rule 92 and Order XXI, Rule 94 would show that it passes through three important stages (other than certain intervening stages). They are, (i) conduct of sale; (ii) sale becoming absolute; and (iii) issue of sale certificate. After all these three stages are crossed, the 4 th stage of delivery of possession comes under Rule 95 of Order XXI. It is at this 4 th stage that the appellants have raised the objection relating to Order XXI, Rule 64. It is not as if the appellants were not aware of the fact that the property in entirety was included in the proclamation of sale. Therefore, the claim on the basis of Order XXI, Rule 64 was rightly rejected by the High Court. 38. In view of the above, the appeal is devoid of merits and, hence, it is dismissed. There will be no order as to costs.
The Supreme Court has stated that a legal rule called "res judicata" also applies to the process of carrying out court orders. This rule means that once a court has made a final decision on a matter, you cannot keep bringing up the same legal arguments again. The Court added that a person who owes money from a court order cannot keep making new objections to how that order is being carried out, especially after earlier attempts. Two judges, Justices Hemant Gupta and V Ramasubramanian, made this point. They rejected a new argument from a person who owed money, which was made against the process of selling property at auction. This was the fifth time the case had reached this stage. To delay the carrying out of a court order from 1974, which was to recover 3000 rupees in a money lawsuit, the heirs of the people who owed the money filed a new request. This happened during the fifth round of legal fighting. They argued that the property sale did not follow Rule 64 of the Code of Civil Procedure. This rule essentially states that only enough property should be sold to cover the amount owed by the court's order. This new request was turned down first by the trial court, then by a higher court that reviews decisions, and then by the High Court. Finally, the case was taken to the Supreme Court for further review. The Supreme Court noted that the argument about Rule 64 had not been made in the earlier stages of the case. It was brought up for the first time in 2006. The party involved had many chances to raise this argument before. Justice Ramasubramanian, who wrote the court's decision, stated that a person who owes money from a court order cannot be allowed to keep raising new objections about how that order is being carried out. He added, "After failing to bring up the issue in four previous rounds of legal fighting, the people appealing the case cannot be allowed to raise it now." The court's decision explained that the rule of "res judicata" (where a decided legal issue cannot be re-argued) applies to the process of carrying out court orders as well. The court pointed out that this current request was a second one made under Section 47, and so it was blocked by the "res judicata" rule. It is important to know that before a specific law (Act 104 of 1976) was passed, some believed that Section 11 of the Code (which includes "res judicata") did not apply to carrying out court orders. However, the 1976 law added a clarification, Explanation VII, to Section 11. This explanation made it clear that Section 11 *does* apply to the process of carrying out a court's order. It says that when Section 11 mentions a lawsuit or a past lawsuit, it should also be understood to mean the process of carrying out a court order, any issues that come up during that process, and any past steps taken to carry out that order. Because the specific argument for defense was not brought up in the earlier court cases, it falls under a rule called "constructive res judicata." This rule means that if an argument *should* have been made in a previous case but wasn't, it is treated as if it *was* an important issue decided in that past case. This is further explained in Explanation IV of Section 11 of the Code of Civil Procedure. The Supreme Court also remarked in its judgment that this case was "Fit Case To Be Included In Law School Syllabus." This highlighted its significance as the fifth round of legal fighting that was delaying the execution of an order in a lawsuit that was 50 years old.
1. Challenging the order of the High Court confirming the order of the Executing Court dismissing their application under Section 47 of the Code of Civil Procedure, 1908 (hereinafter referred to as the ‘Code’), the legal representatives of the judgment­debtor have come up with the above appeal. Incidentally, this litigation is exactly half a century old (it started with a suit filed in 1971) and this appeal arises out of the fifth round of litigation at the stage of execution of a simple money decree and we wish that it is the knock out round. 2. We have heard Mr. Rauf Rahim, learned counsel for the appellants, and Mr. Raja Chatterjee, learned counsel appearing for the respondent nos.1­7/auction purchasers. 3. One Ms. Rama Rani Devi, filed a simple suit for recovery of money in Money Suit No.16 of 1971 on the file of the District Munsif Court, Bongaon, District 24 Parganas, West Bengal, against one Sasadhar Biswas, for recovery of a sum of Rs.3000/­. The suit was decreed ex parte on 25.07.1974, directing the defendant to pay the decretal amount in six equal instalments with a default clause. 4. Since the decree was not honoured, the decree holder filed an execution petition in Execution Case No.2 of 1975, praying for the attachment and sale of 17 decimal of land (approximately about 7450 Sq.ft.) in Plot No.26/159 under Khatian No.2555 of Mouza Bongaon. It appears that a sale proclamation was issued by the executing court on 16.07.1975 after which Sasadhar Biswas, the Judgment­debtor filed an application in Miscellaneous Case No.151 of 1975 assailing the sale proclamation issued by the executing court, on the ground of material irregularity and fraud. But the same was dismissed on 03.09.1975. 5. An auction sale was held on 30.05.1979, in which two brothers by name, Sachindra Nath Mukherjee and Dulal Kanti Mukherjee became the highest bidders, they having offered a sum of Rs.5500/­, as the highest bid amount. The highest bidders also deposited the money into court. 6. Mr. Sasadhar Biswas, the judgment­debtor then filed an application on 27.06.1979 under Order XXI, Rule 90 read with Section 152 of the Code praying for setting aside the auction sale on the ground of irregularities in the sale proclamation. During the pendency of this petition in Miscellaneous Case No.47 of 1979, the judgment­debtor Sasadhar Biswas entered into a compromise on 19.07.1980, not with the decree holder but with the auction purchasers. The memo of compromise reads as follows:­ “The petitioner and the auction purchaser Opp. party do settle the suit mutually in the following manner. 1) If the petitioner debtor pays the entire money due to the auction purchaser opposite part in cash within 15 th December or if he deposits it in their credit in the court and the auction shall be revoked and the original execution case shall be disposed on full satisfaction. 2) Otherwise that is if the petitioner debtor does not pay the entire money due to the auction purchaser opposite party in cash within 15th December on deposits that amount in court within that date then the said auction shall remain effective and this present suit shall be dismissed with costs. Hence it is prayed that according to the contents of this solenama and for compliance with the conditions of the solenama the final date of this suit may be kept on 16.12.80 on the expiry of the 15th December.” 7. It is relevant to point out that the amount of money deposited by the auction purchasers into court was Rs.5500/­, but the decree debt was around Rs.3360/­. Though the compromise memo entered into by the judgment­debtor with the auction purchasers did not refer to the decree debt, but repeatedly mentioned the words, “entire money due to the auction purchasers”, the judgment­debtor admittedly deposited on 15.12.1980, only a sum of Rs.3700/­, purportedly on the basis of the calculation provided by the court officer in terms of Order XXI, Rule 89 of the Code. 8. Since the deadline for payment of the entire money due to the auction purchasers expired on 15.12.1980 and also since the judgment­debtor deposited only a sum of Rs.3700/­, as against the amount of Rs.5500/­ deposited by the auction purchasers, the executing court dismissed the application under Order XXI, Rule 90 in Miscellaneous Case No.47 of 1979. 9. But within four days, the executing court again passed an order on 20.12.1980 recalling the order dated 16.12.1980 and recording full satisfaction in the execution. Shocked at this order, the auction purchasers filed an application on 22.12.1980 for recalling the order dated 20.12.1980, passed purportedly behind their back. This application was dismissed by the executing court on 12.09.1981. Challenging the said order dated 12.09.1981, passed by the executing court, the auction purchasers filed a revision in C.R.No.3577 of 1981 on the file of the High Court. The High Court allowed the revision by an order dated 21.06.1983 and remanded the matter back to the executing court, for re­hearing the application of the auction purchasers for recall of the order dated 10. The executing court passed a fresh order dated 11.07.1987 rejecting the application of the auction purchasers on merits, but this order was set aside by the High Court in a revision in C.O.No.2487 of 1987, by an order dated 20.12.1990. By this order the High Court held that the judgment­debtor failed to honour the commitment made in the compromise memo to deposit the entire amount due to the auction purchasers and that therefore the auction sale should be confirmed in favour of the auction purchasers. It may be relevant to extract Clause No.4 of the operative portion of the order of the High Court in C.O. No.2487 of 1987 dated 20.12.1990. It reads as follows:­ 4. None of the parties shall have any claim whatsoever as against the applicant in respect of the purchased property which shall be deemed to be his absolute property on and from the expiry of 15th December, 1980.” 11. Thereafter, a mention was made before the learned judge, on behalf of the counsel for the judgment­debtor seeking recall of the order in C.O.No.2487 of 1987 on the ground that the counsel was not present at the time of disposal of the revision petition. Therefore, the leaned Judge again heard the matter and passed a detailed order dated 08.08.1991, reiterating his earlier order. A special leave petition filed against the order dated 08.08.1991, in SLP(C)No.18092 of 1991 was dismissed by this Court on 24.02.1992. The judgment­debtor moved a petition for review before this Court but the same was also dismissed on 12.08.1992. Thus, the 1st round of litigation kicked off with an application under Order XXI, Rule 90, in the year 1979, came to an end in 1992. 12. The judgment­debtor then started the 2 nd round by filing a suit in suit No.249 of 1992 on the file of the District Munsif, Bongaon, for a declaration that the auction sale is void but the said suit was dismissed as abated, on 02.12.1992. 13. In the meantime, the auction purchasers filed petitions for the issue of sale certificate and the judgment­debtor filed a petition under Order XXI, Rule 29 for stay of execution proceedings. But the application of the judgment­debtor was dismissed and the applications of the auction purchasers were allowed by the executing court by an order dated 31.01.1994. A direction was given for the issue of a sale certificate to the auction purchasers in terms of Order XXI, Rule 94. Accordingly, a sale certificate was issued on 08.02.1994. The sale certificate was also duly registered. 14. Challenging the order dated 31.01.1994 passed by the executing court directing the issue of sale certificate, the judgment­ debtor filed a revision in C.O.No.1232 of 1994 on the file of the High Court. Though the High Court entertained the revision and initially granted a stay of further proceedings in the execution, the High Court eventually dismissed the revision petition by an order dated 05.09.2001 holding that the earlier order in C.O.No.2487 of 1987 dated 08.08.1991 had already clinched the issue. With this order, the third round came to an end. 15. The 4th round began with an application by the auction purchasers seeking delivery of possession. This application was allowed by the executing court on 15.03.2002, directing delivery to be effected by 16.04.2002. Since the judgment­debtor had, in the meantime, constructed a building on the land sold in execution of the decree, the executing court directed the building so constructed illegally, to be demolished. 16. The order of the executing court for delivery of possession was challenged by the appellants herein (the legal representatives of the judgment­debtor) in a Civil Petition No.106 of 2002 before the Additional District Judge, Barasat. The same was dismissed on 26.02.2003. This order was challenged before the High Court in C.O.No.1276 of 2003, but the same was dismissed by the High Court by an order dated 11.02.2005 pointing out that the issue has already been clinched by the previous orders. The special leave petition SLP(C) No.12925 of 2005 filed against the said order, was dismissed by this Court on 18.07.2005. The petition seeking review of the said order was also dismissed by this Court on 10.01.2006. Thus, the fourth round of litigation came to a close. 17. Not to be put off by repeated failures, the appellants herein, like the tireless Vikramaditya, (who made repeated attempts to capture ‘Betal’) started the present round (hopefully the final round), by moving a petition in Miscellaneous Case No.15 of 2006 before the executing court under Section 47 of the Code, on the ground that the mandate of Order XXI Rule 64 was not followed in the auction and that therefore a jurisdictional error has crept in and that the same could be corrected at any point of time and at any stage of the proceeding. This petition filed on 10.02.2006 was dismissed by the executing court by an order dated 20.01.2007. 18. Challenging the said order dismissing their application under Section 47, the appellants filed a revision in C.O. No.1115 of 2007 on the file of the High Court. This revision was dismissed by the High Court by an order dated 28.03.2008, on the ground that the issue, never having been raised earlier, cannot be allowed to be raised at this distance of time. It is against the said order of the High Court dated 28.03.2008, in C.O.No.1115 of 2007 that the legal representatives of the judgment­debtor have come up with the above appeal. 19. The only mantra, by the recitation of which, the appellants hope to succeed in this half­a­century old litigation, is Order XXI, Rule 64 of the Code. This provision enables an executing court to order “that any property attached by it and liable to sale or such portion thereof as may seem necessary to satisfy the decree, shall be sold and that the proceeds of such sale or a sufficient portion thereof shall be paid to the party entitled under the decree to receive the 20. It is the contention of the learned counsel for the appellants that Order XXI, Rule 64 casts not a discretion, but an obligation, to sell only such portion of the property as may be sufficient to satisfy the decree. In support of this proposition, the learned counsel for the appellants cited a few decisions, which we shall now deal with. In Takkaseela Pedda Subba Reddi vs. Pujari Padmavathamma & Ors1, this Court held that the, “executing court derives jurisdiction to sell properties attached, only to the point at which the decree is fully satisfied”, and that the words, “necessary to satisfy the decree”, clearly indicate that no sale can be allowed beyond the decretal amount mentioned in the sale proclamation. This Court went further to hold that the issue flowing out of Order XXI, Rule 64 goes to the very root of the jurisdiction of the executing court and that therefore the fact that an objection in this regard was not raised before the executing court is not sufficient to put him out of 21. But the aforesaid decision arose out of a case where the decretal amount for which the properties were to be sold was mentioned in the warrant of sale and sale proclamation as Rs.16,715/­. The lands in two villages namely Devanoor and Gudipadu were brought to sale. The sale of lands in one village alone fetched Rs.16,880/­. Yet the executing court proceeded to sell the lands in Gudipadu also. It is in that context that this Court held as aforesaid. 22. The decision in Ambati Narasayya vs M. Subha Rao & Anr2, while following T.P. Subba Reddi (supra), went a step further and held that if the property is large and the decree to be satisfied is small, the court must bring only such portion of the property, the proceeds of which would be sufficient to satisfy the decree debt and that it is immaterial whether the property is one or several. 23. But the decision in Ambati Narasayya (supra) also arose out of a particular context. The land that was sold in Ambati Narasayya (supra) was of the extent of 10 acres and it was sold for Rs.17,000/­ for the satisfaction of a claim of Rs.2400/­. The land of the extent of 10 acres is certainly large enough and is capable of division. But in the case on hand, the extent of land is only 17 decimals, working out to (7450 Sq.ft.). 24. It must be pointed out at this stage that under Order XXI, Rule 66 (1) the executing court should cause proclamation of the intended sale to be drawn up in the language of the court. Under sub rule (2) of Rule 66 of Order XXI, such proclamation should be drawn up after notice to the decree holder and the judgment­debtor. 66. Proclamation of sales by public auction.­ (1) Where any property is ordered to be sold by public auction in execution of a decree, the Court shall cause a proclamation of the intended sale to be made in the language of such Court. (2) Such proclamation shall be drawn up after notice to the decree­holder and the judgment­debtor and shall state the time and place of sale, and specify as fairly and accurately as (a) the property to be sold, or, where a part of the property would be sufficient to satisfy the decree, such part; (b) the revenue assessed upon the estate or part of the estate, where the property to be sold is an interest in an estate or in part of an estate paying revenue to the Government; (c) any incumbrance to which the property is liable; (d) the amount for the recovery of which the sale is ordered; (e) every other thing which the Court considers material for a purchaser to know in order to judge of the nature and value of Provided that where notice of the date for settling the terms of the proclamation has been given to the judgment­ debtor by means of an order under rule 54, it shall not be necessary to give notice under this rule to the judgment­ debtor unless the Court otherwise directs: Provided further that nothing in this rule shall be construed as requiring the Court to enter in the proclamation of sale its own estimate of the value of the property, but the proclamation shall include the estimate, if any, given, by either or both of the parties. (3) Every application for an order for sale under this rule shall be accompanied by a statement signed and verified in the manner hereinbefore prescribed for the signing and verification of pleadings and containing, so far as they are known to or can be ascertained by the person making the verification, the matters required by sub­rule (2) to be specified in the proclamation. (4) For the purpose of ascertaining the matters to be specified in the proclamation, the Court may summon any person whom it thinks necessary to summon and may examine him in respect to any such matters and require him to produce any document in his possession or power relating thereto. 25. It is important to note here that two significant changes were made to Order XXI, Rule 66 by Act 104 of 1976 w.e.f. 01.02.1977. Both these changes were made to sub rule (2) of Rule 66. One of the changes was the insertion of the words “or where a part of the property would be sufficient to satisfy the decree, such part” in clause (a) of sub rule (2). The second change was the insertion of two provisos under sub rule (2). 26. As an aside, it may be noted that the second proviso to sub rule (2) inserted by Central Act 104 of 1976, was redundant in so far as Calcutta is concerned, since Calcutta already had a similar proviso inserted through a local amendment. 27. The first proviso under sub rule (2) of Rule 66 of Order XXI gives a discretion to the court not to give notice under Order XXI, Rule 66 to the judgment­debtor, if a notice for settling the terms of the proclamation had been given to the judgment­debtor by means of an order under Rule 54. 28. Rule 54 of Order XXI prescribes the method of attachment of immovable property. Sub rule (1A) of Rule 54, also inserted by Act 104 of 1976, mandates that the prohibitory order under sub rule(1) shall require the judgment­debtor to attend court on a specified date to take notice of the date to be fixed for settling the terms of the proclamation of sale. This is why the first proviso to sub rule (2) of Rule 66 gives a discretion to the court to dispense with a second notice under Order XXI, Rule 66(2). 29. Keeping in mind the above statutory prescriptions, if we come to the facts of the case, it is seen that the appellants have filed as additional document in Annexure A­3, the copy of the extract of relevant orders passed in Money Execution Case No.2 of 1975 by the District Munsif Court, Bongaon. This document reveals that on 10.01.1975, the executing court ordered the issue of notice of attachment under Order XXI, Rule 54 of the Code. It was only thereafter that the court directed on 16.07.1975, the issue of sale proclamation under Order XXI, Rule 66. 30. Thereafter, the judgment­debtor filed a petition under Section 47 of the Code on 02.09.1975 (this was the first petition under Section 47, while the appeal on hand arises out of the second petition 31. The executing court, at the instance of the judgment­debtor also granted stay of further proceedings on 26.09.1975. But it is not clear from Annexure A­3 of the additional documents filed by the appellants, as to when the said petition under Section 47 was disposed of. However it is clear from the order passed on 22.04.1978 that the decree holder was directed to take further 32. Even after directing the publication of the sale proclamation in the newspaper, the executing court was more than fair to the judgment­debtor, as could be seen from the order passed on 16.03.1979. On the said date the executing court found that in the newspaper publication, the case number was wrongly mentioned. Therefore, the court directed the issue of fresh sale proclamation and fresh publication. It is only thereafter that the judgment­debtor moved a petition on 30.05.1979 for postponement of the auction. It was rejected and the court proceeded with the auction. The decree holder himself participated in the auction after getting permission from the court. However, it is only the third parties who succeeded in getting the sale confirmed. 33. The above sequence of events would show that the judgment­ debtor had sufficient opportunity to object to the inclusion of the entire property when an order was passed under Order XXI, Rule 54. Subsequently he had an opportunity to object to the inclusion of the whole of the property, by taking advantage of the amended clause (a) of sub rule (2) of Rule 66 of Order XXI, which speaks about a part of the property that would be sufficient to satisfy the decree. But the judgment­debtor despite filing a petition under Section 47 on 02.09.1975, did not point out how the property being a vacant land of an extent of 17 decimals could have been divided. It must be pointed out at the cost of repetition that the notice of attachment under Order XXI, Rule 54 was ordered on 10.01.1975 and the sale proclamation under Order XXI, Rule 66 was directed to be issued on 16.07.1975. It is only thereafter that the first petition under Section 47 was filed on 02.09.1975. Therefore, the appellants cannot compare themselves to the judgment­debtors in T.P. Subba Reddi or Ambati Narasayya (supra). 34. As we have pointed out elsewhere, the objection relating to Order XXI, Rule 64 has been raised by the appellants for the first time in the 5th round of litigation in execution. In the 1 st round, the appellants exhausted the gun­powder available under Order XXI, Rule 90, by taking recourse to a compromise with the auction purchasers, after alleging material irregularity in the conduct of the auction. The 1st round which commenced in 1979 came to an end in 1992 with the dismissal of SLP(C) No.18092 of 1991. In the order of the High Court dated 20.12.1990 that was under challenge in the said SLP, the High Court made it clear that none of the parties shall have any claim whatsoever as against the auction purchaser in respect of the purchased property (we have extracted this in Para 10 above). 35. The 2nd round was kick­started with a suit in Suit No.249 of 1992 for a declaration that the auction sale was void. This is despite the express bar of a separate suit, under Section 47(1) of the Code. But the 2nd round got aborted with the dismissal of the suit due to abatement. 36. The 3rd round started with objections to the issue of sale certificate and it came to an end in the year 2001. The 4 th round commenced when the auction purchasers moved the executing court for delivery of possession. Delivery was ordered by the executing court on 15.03.2002. This round came to a close with the dismissal of a SLP in the year 2005 and a review petition in the year 2006, arising out of the dismissal of a revision petition challenging the order of the executing court for delivery of possession. It is only thereafter that the 5th round of litigation was started by the appellants by filing a petition under Section 47 and raising the bogey of “jurisdictional error” on account of non­compliance with the mandate of Order XXI, Rule 64. In other words, the appellants have now exhausted almost all provisions available to a judgment­debtor to stall execution and the case on hand is fit to be included in the syllabus of a law school as a study material for students to get equipped with the various provisions of the Code relating to 37. The appellants cannot be allowed to raise the issue relating to the breach of Order XXI, Rule 64 for the following reasons:­ (i) A judgment­debtor cannot be allowed to raise objections as to the method of execution in instalments. After having failed to raise the issue in four earlier rounds of litigation, the appellants cannot (ii) As we have pointed out elsewhere, the original judgment­ debtor himself filed a petition under Section 47, way back on 02.09.1975. What is on hand is a second petition under Section 47 and, hence, it is barred by res judicata. It must be pointed out at this stage that before Act 104 of 1976 came into force, there was one view that the provisions of Section 11 of the Code had no application to execution proceedings. But under Act 104 of 1976 Explanation VII was inserted under Section 11 and it says that the provisions of this Section shall apply to a proceeding for the execution of a decree and reference in this Section to any suit, issue or former suit shall be construed as references to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree; (iii) Even in the 5th round, the appellants have not pointed out the lay of the property, its dimensions on all sides and the possibility of dividing the same into two or more pieces, with a view to sell one or more of those pieces for the realisation of the decree debt; (iv) The observations in paragraph 4 of the order of the High Court dated 20.12.1990 in C.O.No.2487 of 1987 that, “none of the parties shall have any claim whatsoever as against the applicant in respect of the purchased property which shall be deemed to be his absolute property on and from the expiry of 15th December, 1980”, has (v) Section 65 of the Code says that, “where immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute”. The sale of a property becomes absolute under Order XXI, Rule 92(1) after an application made under Rule 89, Rule 90 or Rule 91 is disallowed and the court passes an order confirming the same. After the sale of an immovable property becomes absolute in terms of Order XXI, Rule 92(1), the Court has to grant a certificate under Rule 94. The certificate has to bear the date and the day on which the sale became absolute. Thus a conjoint reading of Section 65, Order XXI, Rule 92 and Order XXI, Rule 94 would show that it passes through three important stages (other than certain intervening stages). They are, (i) conduct of sale; (ii) sale becoming absolute; and (iii) issue of sale certificate. After all these three stages are crossed, the 4 th stage of delivery of possession comes under Rule 95 of Order XXI. It is at this 4 th stage that the appellants have raised the objection relating to Order XXI, Rule 64. It is not as if the appellants were not aware of the fact that the property in entirety was included in the proclamation of sale. Therefore, the claim on the basis of Order XXI, Rule 64 was rightly rejected by the High Court. 38. In view of the above, the appeal is devoid of merits and, hence, it is dismissed. There will be no order as to costs.
The Supreme Court has stated that a legal rule called "res judicata" also applies to the process of carrying out court orders. This rule means that once a court has made a final decision on a matter, you cannot keep bringing up the same legal arguments again. The Court added that a person who owes money from a court order cannot keep making new objections to how that order is being carried out, especially after earlier attempts. Two judges, Justices Hemant Gupta and V Ramasubramanian, made this point. They rejected a new argument from a person who owed money, which was made against the process of selling property at auction. This was the fifth time the case had reached this stage. To delay the carrying out of a court order from 1974, which was to recover 3000 rupees in a money lawsuit, the heirs of the people who owed the money filed a new request. This happened during the fifth round of legal fighting. They argued that the property sale did not follow Rule 64 of the Code of Civil Procedure. This rule essentially states that only enough property should be sold to cover the amount owed by the court's order. This new request was turned down first by the trial court, then by a higher court that reviews decisions, and then by the High Court. Finally, the case was taken to the Supreme Court for further review. The Supreme Court noted that the argument about Rule 64 had not been made in the earlier stages of the case. It was brought up for the first time in 2006. The party involved had many chances to raise this argument before. Justice Ramasubramanian, who wrote the court's decision, stated that a person who owes money from a court order cannot be allowed to keep raising new objections about how that order is being carried out. He added, "After failing to bring up the issue in four previous rounds of legal fighting, the people appealing the case cannot be allowed to raise it now." The court's decision explained that the rule of "res judicata" (where a decided legal issue cannot be re-argued) applies to the process of carrying out court orders as well. The court pointed out that this current request was a second one made under Section 47, and so it was blocked by the "res judicata" rule. It is important to know that before a specific law (Act 104 of 1976) was passed, some believed that Section 11 of the Code (which includes "res judicata") did not apply to carrying out court orders. However, the 1976 law added a clarification, Explanation VII, to Section 11. This explanation made it clear that Section 11 *does* apply to the process of carrying out a court's order. It says that when Section 11 mentions a lawsuit or a past lawsuit, it should also be understood to mean the process of carrying out a court order, any issues that come up during that process, and any past steps taken to carry out that order. Because the specific argument for defense was not brought up in the earlier court cases, it falls under a rule called "constructive res judicata." This rule means that if an argument *should* have been made in a previous case but wasn't, it is treated as if it *was* an important issue decided in that past case. This is further explained in Explanation IV of Section 11 of the Code of Civil Procedure. The Supreme Court also remarked in its judgment that this case was "Fit Case To Be Included In Law School Syllabus." This highlighted its significance as the fifth round of legal fighting that was delaying the execution of an order in a lawsuit that was 50 years old.
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1. Steel products were supplied by the respondent to one M/s. Diamond Engineering Pvt. Ltd. [“the company”] from 21.09.2015 to 11.11.2016, as a result of which INR 24,20,91,054/- was due and payable by the company. As many as 51 cheques were issued by the company in favour of the respondent towards amounts payable for supplies, all of which were returned dishonoured for the reason “funds insufficient” on 03.03.2017. As a result, on 31.03.2017, the respondent issued a statutory demand notice under Section 138 read with Section 141 of the Negotiable Instruments Act, 1881, calling upon the company and its three Directors, the appellants no.1-3 herein, to pay this amount within 15 days of the receipt of the notice. 2. On 28.04.2017, two cheques for a total amount of INR 80,70,133/- presented by the respondent for encashment were returned dishonoured for the reason “funds insufficient”. A second demand notice dated 05.05.2017 was therefore issued under the selfsame Sections by the respondent, calling upon the company and the appellants to pay this amount within 15 days of the receipt of the notice. 3. Since no payment was forthcoming pursuant to the two statutory demand notices, two criminal complaints, being Criminal Complaint No.SS/552/2017 and Criminal Complaint No. SS/690/2017 dated 17.05.2017 and 21.06.2017, respectively, were filed by the respondent against the company and the appellants under Section 138 read with Section 141 of the Negotiable Instruments Act before the Additional Chief summons were issued by the ACMM to the company and the appellants in both the criminal complaints. 4. Meanwhile, as a statutory notice under Section 8 of the Insolvency and Bankruptcy Code, 2016 [“IBC”] had been issued on 21.03.2017 by the respondent to the company, and as an order dated 06.06.2017 was passed by the Adjudicating Authority admitting the application under Section 9 of the IBC and directing commencement of the corporate insolvency resolution process with respect to the company, a moratorium in terms of Section 14 of the IBC was ordered. Pursuant thereto, on 24.05.2018, the Adjudicating Authority stayed further proceedings in the two criminal complaints pending before the ACMM. In an appeal filed to the National Company Law Appellate Tribunal [“NCLAT”], the NCLAT set aside this order, holding that Section 138, being a criminal law provision, cannot be held to be a “proceeding” within the meaning of Section 14 of the IBC. In an appeal filed before this Court, on 26.10.2018, this Court ordered a stay of further proceedings in the two complaints pending before the learned ACMM. On 30.09.2019, since a resolution plan submitted by the promoters of the company had been approved by the committee of creditors, the Adjudicating Authority approved such plan as a result of which, the moratorium order dated 06.06.2017 ceased to have effect. It may only be added that at present, an application for withdrawal of approval of this resolution plan has been filed by the financial creditors of the company before the Adjudicating Authority. Equally, an application to extend time for implementation of this plan has been filed by the resolution applicant sometime in October 2020 before the Adjudicating Authority. Both these applications have yet to be decided by the Adjudicating Authority, the next date of hearing before such Authority being 08.02.2021. 5. The important question that arises in this appeal is whether the institution or continuation of a proceeding under Section 138/141 of the Negotiable Instruments Act can be said to be covered by the moratorium provision, namely, Section 14 of the IBC. 6. Shri Jayanth Muth Raj, learned Senior Advocate appearing on behalf of the appellants, has painstakingly taken us through various provisions of the IBC and has argued that the object of Section 14 being that the assets of the corporate debtor be preserved during the corporate insolvency resolution process, it would be most incongruous to hold that a Section 138 proceeding, which, although a criminal proceeding, is in essence to recover the amount of the bounced cheque, be kept out of the word “proceedings” contained in Section 14(1)(a) of the IBC. According to the learned Senior Advocate, given the object of Section 14, there is no reason to curtail the meaning of the expression “proceedings”, which would therefore include all proceedings against the corporate debtor, civil or criminal, which would result in “execution” of any judgment for payment of compensation. He emphasised the fact that Section 14(1)(a) was extremely wide and ought not to be cut down by judicial interpretation given the expression “any” occurring twice in Section 14(1)(a), thus emphasising that so long as there is a judgment by any court of law (which even extends to an order by an authority) which results in coercive steps being taken against the assets of the corporate debtor, all such proceedings are necessarily subsumed within the meaning of Section 14(1)(a). He also referred to the width of Section 14(1)(b) and the language of Section 14(1)(b) and therefore argued that given the object of Section 14, no rule of construction, be it ejusdem generis or noscitur a sociis can be used to cut down the plain meaning of the words used in Section 14(1)(a). He cited a number of judgments in support of this proposition. He also argued that in any event, even if criminal proceedings properly so-called are to be excluded from Section 14(1)(a), a Section 138 proceeding being quasi-criminal in nature, whose dominant object is compensation being payable to the person in whose favour a cheque is made, which has bounced, the punitive aspect of Section 138 being only to act as an in terrorem proceeding to achieve this result, it is clear that in any event, a hybrid proceeding partaking of this nature would certainly be covered. He cited a number of judgments in order to buttress this proposition as well. 7. Shri Jayant Mehta, learned Advocate appearing on behalf of the respondent, rebutted each of these submissions with erudition and grace. He referred to the Report of the Insolvency Law Committee of February 2020 to drive home his point that the object of Section 14 being a limited one, a criminal proceeding could not possibly be included within it. He further went on to juxtapose the moratorium provisions which would apply in the case of individuals and firms in Sections 85, 96, and 101 of the IBC, emphasising that the language of these provisions being wider would, by way of contrast, include a Section 138 proceeding so far as individuals and firms are concerned, which has been expressly eschewed so far as Section 14’s applicability to corporate debtors is concerned. He relied upon the ejusdem generis/noscitur a sociis rules of construction that had, in fact, been applied to Section 14(1)(a) by the Bombay High Court and the Calcutta High Court to press home his point that since the expression “proceedings” takes its colour from the previous expression “suits”, such proceedings must necessarily be civil in nature. He cited judgments which distinguish between civil and criminal proceedings and went on to argue that Section 138 of the Negotiable Instruments Act is a criminal proceeding whose object may be two fold, the primary object being to make what was once a civil wrong punishable by a jail sentence and/or fine. He relied heavily upon judgments which construed like expressions contained in Section 22(1) of the Sick Industrial Companies Act, 1985 [“SICA”], and Section 446(2) of the Companies Act, 1956. He also was at pains to point out from several judgments that the Delhi High Court had not applied Section 14 of the IBC to stay proceedings under Section 34 of the Arbitration and Conciliation Act, 1996; the Bombay High Court had not applied Section 14 of the IBC to stay prosecution under the Employees’ Provident Funds Act, 1952; and that the Delhi High Court had not stayed proceedings covered by the Prevention of Money-Laundering Act, 2002, stating that criminal proceedings were not the subject matter of Section 14 of the IBC. He thus supported the judgment under appeal, stating that the consistent view of the High Courts has been that Section 138, being a criminal law provision, could not possibly be said to be covered by Section 14 of the IBC. He also relied upon the provision contained in Section 33(5) of the IBC to argue that when a liquidation order is passed, no suit or other legal proceeding can be instituted by or against a corporate debtor, similar to what is contained in Section 446 of the Companies Act, 1956, and if those decisions are seen, then the expression “or other legal proceeding” obviously cannot include criminal proceedings. On the other hand, in any case, the expression “or other legal proceeding” should be contrasted with the word “proceedings” in Section 14(1)(a) of the IBC, which cannot possibly include a criminal proceeding, given its object. Lastly, he also relied upon Section 32A of the IBC, which was introduced by the Insolvency and Bankruptcy Code (Amendment) Act, 2020 w.e.f. 28.12.2019, and emphasised the fact that the liability of a corporate debtor for an offence committed prior to the commencement of the corporate insolvency resolution process shall cease in certain circumstances. This provision would have been wholly unnecessary if Section 14(1)(a) were to cover criminal offences as well, as they would cease for the period of moratorium. Thus, he argued that this Section throws considerable light on the fact that criminal prosecutions are outside the ken of the expression “proceedings” contained in Section 14(1)(a) of the IBC. 8. Shri Aman Lekhi, learned Additional Solicitor General, appearing on behalf of the Union of India in W.P. (Crl.) No. 297/2020, has comprehensively taken us through Chapter XVII of the Negotiable Instruments Act to argue that a plain reading of the said Chapter would reveal that the offence under Section 138 is a purely criminal offence which results in imposition of a jail sentence or fine or both, being punishments exclusively awardable under Section 53 of the Indian Penal Code, 1860 only in a criminal proceeding, and hence, does not fall within “proceedings” contemplated by Section 14 of the IBC. He further states that since compounding under criminal law can only take place at the instance of the complainant/injured party, a subordinate criminal court has no inherent power to terminate proceedings under Section 138/141 upon “payment of compensation to the satisfaction of the court”. He then relied upon the rule of noscitur a sociis to state that since the expression “proceedings” contained in Section 14(1)(a) of the IBC is preceded by the expression “suits” and followed by the expression “execution”, it has to be read in a sense analogous to civil proceedings dealing with private rights of action as contrasted with criminal proceedings which deal with public wrongs. According to the learned Additional Solicitor General, the intent manifest in Section 14 of the IBC is reinforced by the introduction of Section 32A to the IBC in that if the intent of Section 14 were to prohibit initiation or continuation of criminal proceedings, the legislature would not have contemplated the introduction of Section 32A by way of amendment. He further states that if the expression “proceedings” contained in Section 14 were to be construed so as to include criminal proceedings, it would render the first proviso to Section 32, which deals with institution of prosecution against a corporate debtor during the corporate insolvency resolution process, and the second proviso, which indicates pendency of criminal prosecution against those in charge of and responsible for the conduct of the corporate debtor, otiose. He relied on the judgment in Aneeta Hada v. Godfather Travels & Tours (P) Ltd., (2012) 5 SCC 661 [“Aneeta Hada”] to buttress his submission that criminal liability can fall on Directors/persons in charge of and responsible for the conduct of the corporate debtor even where the corporate debtor may not be proceeded against by virtue of Section 14 or Section 32A. He lastly submits that Sections 81 and 101 of the IBC, in speaking of a moratorium in context of “any debt” also lend support to his contention that moratorium under the IBC only applies to civil proceedings within the realm of private law, and that since Section 138 proceedings are not proceedings for the recovery of a debt, they cannot fall within the moratorium provisions set out by Sections 14 or 81 or 101. 9. Having heard learned counsel, it is important at this stage to set out Section 14 of the IBC, which reads as follows: “14. Moratorium.—(1) Subject to provisions of sub-sections (2) and (3), on the insolvency commencement date, the Adjudicating Authority shall by order declare moratorium for prohibiting all of the following, namely— (a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel (b) transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; (c) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, (d) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. Explanation.—For the purposes of this sub-section, it is hereby clarified that notwithstanding anything contained in any other law for the time being in force, a license, permit, registration, quota, concession, clearances or a similar grant or right given by the Central Government, State Government, local authority, sectoral regulator or any other authority constituted under any other law for the time being in force, shall not be suspended or terminated on the grounds of insolvency, subject to the condition that there is no default in payment of current dues arising for the use or continuation of the license, permit, registration, quota, concession, clearances or a similar grant or right during the moratorium period. (2) The supply of essential goods or services to the corporate debtor as may be specified shall not be terminated or suspended or interrupted during moratorium period. (2-A) Where the interim resolution professional or resolution professional, as the case may be, considers the supply of goods or services critical to protect and preserve the value of the corporate debtor and manage the operations of such corporate debtor as a going concern, then the supply of such goods or services shall not be terminated, suspended or interrupted during the period of moratorium, except where such corporate debtor has not paid dues arising from such supply during the moratorium period or in such circumstances as may be specified. (3) The provisions of sub-section (1) shall not apply to— (a) such transactions, agreements or other arrangements as may be notified by the Central Government in consultation with any financial sector (b) a surety in a contract of guarantee to a corporate debtor. (4) The order of moratorium shall have effect from the date of such order till the completion of the corporate insolvency Provided that where at any time during the corporate insolvency resolution process period, if the Adjudicating Authority approves the resolution plan under sub-section (1) of Section 31 or passes an order for liquidation of corporate debtor under Section 33, the moratorium shall cease to have effect from the date of such approval or liquidation order, as the case may be.” 10. A cursory look at Section 14(1) makes it clear that subject to the exceptions contained in sub-sections (2) and (3), on the insolvency commencement date, the Adjudicating Authority shall mandatorily, by order, declare a moratorium to prohibit what follows in clauses (a) to (d). Importantly, under sub-section (4), this order of moratorium does not continue indefinitely, but has effect only from the date of the order declaring moratorium till the completion of the corporate insolvency resolution process which is time bound, either culminating in the order of the Adjudicating Authority approving a resolution plan or in liquidation. 11. The two exceptions to Section 14(1) are contained in sub-sections (2) and (3) of Section 14. Under sub-section (2), the supply of essential goods or services to the corporate debtor during this period cannot be terminated or suspended or even interrupted, as otherwise the corporate debtor would be brought to its knees and would not able to function as a going concern during this period. The exception created in sub-section (3) (a) is important as it refers to “transactions” as may be notified by the Central Government in consultation with experts in finance. The expression “financial sector regulator” is defined by Section 3(18) as “3. Definitions.—In this Code, unless the context otherwise (18) “financial sector regulator” means an authority or body constituted under any law for the time being in force to regulate services or transactions of financial sector and includes the Reserve Bank of India, the Securities and Exchange Board of India, the Insurance Regulatory and Development Authority of India, the Pension Fund Regulatory Authority and such other regulatory authorities as may be xxx xxx xxx” 12. Thus, the Central Government, in consultation with experts, may state that the moratorium provision will not apply to such transactions as may be notified. This is of some importance as Section 14(1)(a) does not indicate as to what the proceedings contained therein apply to. Sub- section 3(a) provides the answer – that such “proceedings” relate to “transactions” entered into by the corporate debtor pre imposition of the moratorium. Section 3(33) defines “transaction” as follows: “3. Definitions.—In this Code, unless the context otherwise (33) “transaction” includes an agreement or arrangement in writing for the transfer of assets, or funds, goods or services, xxx xxx xxx” 13. This definition being an inclusive one is extremely wide in nature and would include a transaction evidencing a debt or liability. This is made clear by Section 96(3) and Section 101(3) which contain the same language as Section 14(3)(a), these Sections speaking of ‘debts’ of the individual or firm. Equally important is Section 14(3)(b), by which a surety in a contract of guarantee of a debt owed by a corporate debtor cannot avail of the benefit of a moratorium as a result of which a creditor can enforce a guarantee, though not being able to enforce the principal debt during the period of moratorium – see State Bank of India v. V. Ramakrishnan, (2018) 17 SCC 394 (at paragraph 20) [“V. 14. We now come to the language of Section 14(1)(a). It will be noticed that the expression “or” occurs twice in the first part of Section 14(1)(a) – first, between the expressions “institution of suits” and “continuation of pending suits” and second, between the expressions “continuation of pending suits” and “proceedings against the corporate debtor…”. The sweep of the provision is very wide indeed as it includes institution, continuation, judgment and execution of suits and proceedings. It is important to note that an award of an arbitration panel or an order of an authority is also included. This being the case, it would be incongruous to hold that the expression “the institution of suits or continuation of pending suits” must be read disjunctively as otherwise, the institution of arbitral proceedings and proceedings before authorities cannot be subsumed within the expression institution of “suits” which are proceedings in civil courts instituted by a plaint (see Section 26 of the Code of Civil Procedure, 1908). Therefore, it is clear that the expression “institution of suits or continuation of pending suits” is to be read as one category, and the disjunctive “or” before the word “proceedings” would make it clear that proceedings against the corporate debtor would be a separate category. What throws light on the width of the expression “proceedings” is the expression “any judgment, decree or order” and “any court of law, tribunal, arbitration panel or other authority”. Since criminal proceedings under the Code of Criminal Procedure, 1973 [“CrPC”] are conducted before the courts mentioned in Section 6, CrPC, it is clear that a Section 138 proceeding being conducted before a Magistrate would certainly be a proceeding in a court of law in respect of a transaction which relates to a debt owed by the corporate debtor. Let us now see as to whether the expression “proceedings” can be cut down to mean civil proceedings stricto sensu by the use of rules of interpretation such as ejusdem generis and noscitur a sociis. 15. Shri Aman Lekhi, learned Additional Solicitor General, relied upon the judgment in State of Assam v. Ranga Mahammad, (1967) 1 SCR 454. The Court was concerned with the meaning of the expression “posting” which occurs in Article 233 of the Constitution, qua District Judges in a State. Applying the doctrine of noscitur a sociis, this Court held that given the fact that the expression “posting” comes in between “appointment” and “promotion” of District Judges, it is clear that a narrower meaning has to be assigned to it, namely, that of assigning someone to a post which would not include “transfer”. Quite apart from the positioning of the word “posting” in between “appointment” and “promotion”, from which it took its colour, even otherwise, Articles 234 and 235 of the Constitution would make it clear that since “transfer” of District Judges is with the High Court and not with the State Government, quite obviously, the expression “posting” could not be used in its wider sense – see pages 460 and 461. This judgment is an early application of the rule of noscitur a sociis, given the position of a wider word between two narrow words, and more importantly, the reading of other allied provisions in the Constitution. 16. In Jagdish Chander Gupta v. Kajaria Traders (India) Ltd., (1964) 8 SCR 50, a five-Judge Bench of this Court had to decide as to whether the expression “or other proceeding” occurring in Section 69(3) of the Indian Partnership Act, 1932 would include a proceeding to appoint an arbitrator under Section 8(2) of the Arbitration Act, 1940. This Court held: “It remains, however, to consider whether by reason of the fact that the words “other proceeding” stand opposed to the words “a claim of set-off” any limitation in their meaning was contemplated. It is on this aspect of the case that the learned Judges have seriously differed. When in a statute particular classes are mentioned by name and then are followed by general words, the general words are sometimes construed ejusdem generis i.e. limited to the same category or genus comprehended by the particular words but it is not necessary that this rule must always apply. The nature of the special words and the general words must be considered before the rule is applied. In Allen v. Emersons [(1944) IKB 362] Asquith, J., gave interesting examples of particular words followed by general words where the principle of ejusdem generis might or might not apply. We think that the following illustration will clear any difficulty. In the expression “books, pamphlets, newspapers and other documents” private letters may not be held included if “other documents” be interpreted ejusdem generis with what goes before. But in a provision which reads “newspapers or other document likely to convey secrets to the enemy”, the words “other document” would include document of any kind and would not take their colour from “newspapers”. It follows, therefore, that interpretation ejusdem generis or noscitur a sociis need not always be made when words showing particular classes are followed by general words. Before the general words can be so interpreted there must be a genus constituted or a category disclosed with reference to which the general words can and are intended to be restricted. Here the expression “claim of set-off” does not disclose a category or a genus. Set-offs are of two kinds — legal and equitable — and both are already comprehended and it is difficult to think of any right “arising from a contract” which is of the same nature as a claim of set-off and can be raised by a defendant in a suit. Mr B.C. Misra, whom we invited to give us examples, admitted frankly that it was impossible for him to think of any proceeding of the nature of a claim of set-off other than a claim of set-off which could be raised in a suit such as is described in the second sub-section. In respect of the first sub-section he could give only two examples. They are (i) a claim by a pledger of goods-with an unregistered firm whose good are attached and who has to make an objection under Order 21 Rule 58 of the Code of Civil Procedure and (ii) proving a debt before a liquidator. The latter is not raised as a defence and cannot belong to the same genus as a “claim of set-off”. The former can be made to fit but by a stretch of some considerable imagination. It is difficult for us to accept that the legislature was thinking of such far-fetched things when it spoke of “other proceeding” ejusdem generis with a claim of set-off.” “In our judgment, the words “other proceeding” in sub- section (3) must receive their full meaning untrammelled by the words “a claim of set-off”. The latter words neither intend nor can be construed to cut down the generality of the words “other proceeding”. The sub-section provides for the application of the provisions of sub-sections (1) and (2) to claims of set-off and also to other proceedings of any kind which can properly be said to be for enforcement of any right arising from contract except those expressly mentioned as exceptions in sub-section (3) and sub-section (4).” 17. Likewise, in Rajasthan State Electricity Board v. Mohan Lal, (1967) 3 SCR 377, this Court had to decide whether the expression “other authorities” in Article 12 of the Constitution of India took its colour from the preceding expressions used in the said Article, making such authorities only those authorities who exercised governmental power. This was emphatically turned down by a Constitution Bench of this Court, stating: “In our opinion, the High Courts fell into an error in applying the principle of ejusdem generis when interpreting the expression “other authorities” in Article 12 of the Constitution, as they overlooked the basic principle of interpretation that, to invoke the application of ejusdem generis rule, there must be a distinct genus or category running through the bodies already named. Craies on, Statute Law summarises the “The ejusdem generis rule is one to be applied with caution and not pushed too far…. To invoke the application of the ejusdem generis rule there must be a distinct genus or category. The specific words must apply not to different objects of a widely differing character but to something which can be called a class or kind of objects. Where this is lacking, the rule cannot apply, but the mention of a single species does not constitute a genus [Craies on Statute Law, 6th Edn, p 181].” Maxwell in his book on ‘Interpretation of Statutes’ explained the principle by saying: “But the general word which follows particular and specific words of the same nature as itself takes its meaning from them, and is presumed to be restricted to the same genus as those words …. Unless there is a genus or category, there is no room for the application of the ejusdem generis doctrine [Maxwell on Interpretation of Statutes, 11th Edn pp. 326, 327]”. In United Towns Electric Co., Ltd. v. Attorney-General for Newfoundland [(1939) I AER 423] , the Privy Council held that, in their opinion, there is no room for the application of the principle of ejusdem generis in the absence of any mention of a genus, since the mention of a single species — for example, water rates — does not constitute a genus. In Article 12 of the Constitution, the bodies specifically named are the Executive Governments of the Union and the States, the Legislatures of the Union and the States, and local authorities. We are unable to find any common genus running through these named bodies, nor can these bodies be placed in one single category on any rational basis. The doctrine of ejusdem generis could not, therefore, be, applied to the interpretation of the expression “other authorities” in this article. The meaning of the word “authority” given in Webster's Third New International Dictionary, which can be applicable, is a public administrative agency or corporation having quasi- governmental powers and authorised to administer a revenue- producing public enterprise. This dictionary meaning of the word “authority” is clearly wide enough to include all bodies created by a statute on which powers are conferred to carry out governmental or quasi-governmental functions. The expression “other authorities” is wide enough to include within it every authority created by a statute and functioning within the territory of India, or under the control of the Government of India; and we do not see any reason to narrow down this meaning in the context in which the words “other authorities” are used in Article 12 of the Constitution.” 18. In CBI v. Braj Bhushan Prasad, (2001) 9 SCC 432, this Court was asked to construe Section 89 of the Bihar Reorganisation Act with reference to noscitur a sociis. In turning this down, this Court held: “26. We pointed out the above different shades of meanings in order to determine as to which among them has to be chosen for interpreting the said word falling in Section 89 of the Act. The doctrine of noscitur a sociis (meaning of a word should be known from its accompanying or associating words) has much relevance in understanding the import of words in a statutory provision. The said doctrine has been resorted to with advantage by this Court in a number of cases vide Bangalore Water Supply & Sewerage Board v. A. Rajappa [(1978) 2 SCC 213 : 1978 SCC (L&S) 215], Rohit Pulp and Paper Mills Ltd. v. CCE [(1990) 3 SCC 447], Oswal Agro Mills Ltd. v. CCE [1993 Supp (3) SCC 716], K. Bhagirathi G. Shenoy v. K.P. Ballakuraya [(1999) 4 SCC 135] and Lokmat Newspapers (P) Ltd. v. Shankarprasad [(1999) 6 SCC 275 : 1999 SCC (L&S) 27. If so, we have to gauge the implication of the words “proceeding relating exclusively to the territory” from the surrounding context. Section 89 of the Act says that proceeding pending prior to the appointed day before “a court (other than the High Court), tribunal, authority or officer” shall stand transferred to the “corresponding court, tribunal, authority or officer” of Jharkhand State. A very useful index is provided in the Section by defining the words “corresponding court, tribunal, authority or officer in the State of Jharkhand” “The court, tribunal, authority or officer in which, or before whom, the proceeding would have laid if it had been instituted after the appointed day;” 28. Look at the words “would have laid if it had been instituted after the appointed day”. In considering the question as to where the proceeding relating to the 36 cases involved in these appeals would have laid, had they been instituted after the appointed day, we have absolutely no doubt that the meaning of the word “exclusively” should be understood as “substantially all or for the greater part or principally”. 29. We cannot overlook the main object of Section 89 of the Act. It must not be forgotten that transfer of criminal cases is not the only subject covered by the Section. The provision seeks to allocate the files or records relating to all proceedings, after the bifurcation if they were to be instituted after the appointed day. Any interpretation should be one which achieves that object and not that which might create confusion or perplexity or even bewilderment to the officers of the respective States. In other words, the interpretation should be made with pragmatism, not pedantically or in a stilted manner. For the purpose of criminal cases, we should bear in mind the subject-matter of the case to be transferred. When so considering, we have to take into account further that all the 36 cases are primarily for the offences under the PC Act and hence they are all triable before the Courts of Special Judges. Hence, the present question can be determined by reference to the provisions of the PC Act.” 19. In Godfrey Phillips India Ltd. v. State of U.P., (2005) 2 SCC 515, a Constitution Bench of this Court had to construe the meaning of the expression “luxury” in Entry 62 of List 2 of the Seventh Schedule to the Constitution of India. In this context, the rule of noscitur a sociis was applied by the Court, the Court also pointing out how a court must be careful before blindly applying the principle, as follows: “77. In the present context the general meaning of “luxury” has been explained or clarified and must be understood in a sense analogous to that of the less general words such as entertainments, amusements, gambling and betting, which are clubbed with it. This principle of interpretation known as “noscitur a sociis” has received approval in Rainbow Steels Ltd. v. CST [(1981) 2 SCC 141 : 1981 SCC (Tax) 90] , SCC at p. 145 although doubted in its indiscriminate application in State of Bombay v. Hospital Mazdoor Sabha [(1960) 2 SCR 866 : AIR 1960 SC 610] . In the latter case this Court was required to construe Section 2(j) of the Industrial Disputes Act “2(j) ‘industry’ means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen.” 78. It was found that the words in the definition were of very wide and definite import. It was suggested that these words should be read in a restricted sense having regard to the included items on the principle of “noscitur a sociis”. The suggestion was rejected in the following language: (Hospital Mazdoor Sabha case [(1960) 2 SCR 866 : AIR 1960 SC 610] , “It must be borne in mind that noscitur a sociis is merely a rule of construction and it cannot prevail in cases where it is clear that the wider words have been deliberately used in order to make the scope of the defined word correspondingly wider. It is only where the intention of the legislature in associating wider words with words of narrower significance is doubtful, or otherwise not clear that the present rule of construction can be usefully applied. It can also be applied where the meaning of the words of wider import is doubtful; but, where the object of the legislature in using wider words is clear and free of ambiguity, the rule of construction in question cannot be pressed into service.” (AIR p. 614, para 79. We do not read this passage as excluding the application of the principle of noscitur a sociis to the present case since it has been amply demonstrated with reference to authority that the meaning of the word “luxury” in Entry 62 is doubtful and has been defined and construed in different senses. 81. We are aware that the maxim of noscitur a sociis may be a treacherous one unless the “societas” to which the “socii” belong, are known. The risk may be present when there is no other factor except contiguity to suggest the “societas”. But where there is, as here, a term of wide denotation which is not free from ambiguity, the addition of the words such as “including” is sufficiently indicative of the societas. As we have said, the word “includes” in the present context indicates a commonality or shared features or attributes of the including word with the included. 83. Hence on an application of general principles of interpretation, we would hold that the word “luxuries” in Entry 62 of List II means the activity of enjoyment of or indulgence in that which is costly or which is generally recognised as being beyond the necessary requirements of an average member of society and not articles of luxury.” 20. In Vikram Singh v. Union of India, (2015) 9 SCC 502, this Court was asked to construe the expression “government or any other person” contained in Section 364-A of the Indian Penal Code, 1860 with reference to ejusdem generis. This Court, in repelling the contention, went on to “26. We may before parting with this aspect of the matter also deal with the argument that the expression “any other person” appearing in Section 364-A IPC ought to be read ejusdem generis with the expression preceding the said words. The argument needs notice only to be rejected. The rule of ejusdem generis is a rule of construction and not a rule of law. Courts have to be very careful in applying the rule while interpreting statutory provisions. Having said that the rule applies in situations where specific words forming a distinct genus class or category are followed by general words. The first stage of any forensic application of the rule, therefore, has to be to find out whether the preceding words constitute a genus class or category so that the general words that follow them can be given the same colour as the words preceding. In cases where it is not possible to find the genus in the use of the words preceding the general words, the rule of ejusdem generis will have no application. 27. In Siddeshwari Cotton Mills (P) Ltd. v. Union of India Venkatachaliah, J., as His Lordship then was, examined the rationale underlying ejusdem generis as a rule of construction “14. The principle underlying this approach to statutory construction is that the subsequent general words were only intended to guard against some accidental omission in the objects of the kind mentioned earlier and were not intended to extend to objects of a wholly different kind. This is a presumption and operates unless there is some contrary indication. But the preceding words or expressions of restricted meaning must be susceptible of the import that they represent a class. If no class can be found, ejusdem generis rule is not attracted and such broad construction as the subsequent words may admit will be favoured. As a ‘… if a class can be found, but the specific words exhaust the class, then rejection of the rule may be favoured because its adoption would make the general words unnecessary; if, however, the specific words do not exhaust the class, then adoption of the rule may be favoured because its rejection would [See: Construction of Statutes by E.A. Driedger p. 95 quoted by Francis Bennion in his Statutory Construction, pp. 829 and 830.]” 28. Relying upon the observations made by Francis Bennion in his Statutory Construction and English decision in Magnhild v. McIntyre Bros. & Co. [(1920) 3 KB 321] and those rendered by this Court in Tribhuban Parkash Nayyar v. Union of India [(1969) 3 SCC 99], U.P. SEB v. Hari Shankar Jain summed up the legal principle in the following words: (Siddeshwari Cotton Mills case [(1989) 2 SCC 458 : 1989 “19. The preceding words in the statutory provision which, under this particular rule of construction, control and limit the meaning of the subsequent words must represent a genus or a family which admits of a number of species or members. If there is only one species it cannot supply the idea of a genus.” 29. Applying the above to the case at hand, we find that Section 364-A added to IPC made use of only two expressions viz. “Government” or “any other person”. Parliament did not use multiple expressions in the provision constituting a distinct genus class or category. It used only one single expression viz. “Government” which does not constitute a genus, even when it may be a specie. The situation, at hand, is somewhat similar to what has been enunciated in Craies on Statute Law (7th Edn.) at pp. 181-82 “… The modern tendency of the law, it was said [by Asquith, J. in Allen v. Emerson (1944 KB 362 : (1944) 1 All ER 344)], is ‘to attenuate the application of the rule of ejusdem generis’. To invoke the application of the ejusdem generis rule there must be a distinct genus or category. The specific words must apply not to different objects of a widely differing character but to something which can be called a class or kind of objects. Where this is lacking, the rule cannot apply (Hood-Barrs v. IRC [(1946) 2 All ER 768 (CA)]), but the mention of a single species does not constitute a genus. (Per Lord Thankerton in United Towns Electric Co. Ltd. v. Attorney General for Newfoundland [(1939) 1 All ER 423 (PC)].) ‘Unless you can find a category’, said Farwell L.J. (Tillmanns and Co. v. S.S. Knutsford Ltd. [(1908) 2 KB 385 (CA)] ), ‘there is no room for the application of the ejusdem generis doctrine’, and where the words are clearly wide in their meaning they ought not to be qualified on the ground of their association with other words. For instance, where a local Act required that ‘theatres and other places of public entertainment’ should be licensed, the question arose whether a ‘fun-fair’ for which no fee was charged for admission was within the Act. It was held to be so, and that the ejusdem generis rule did not apply to confine the words ‘other places’ to places of the same kind as theatres. So the insertion of such words as ‘or things of whatever description’ would exclude the rule. (Attorney General v. Leicester Corpn. [(1910) 2 Ch 359 : of Local Govt. Officers v. Bolton Corpn. [1943 AC referred to a definition of ‘workman’ as any person who has entered into a works under a contract with an employer whether the contract be by way of manual labour, clerical work ‘or otherwise’ and said: ‘The use of the words “or otherwise” does not bring into play the ejusdem generis principle: for “manual labour” and “clerical work” do not belong to a single limited genus' and Lord Wright in the same case said: ‘The ejusdem generis rule is often useful or convenient, but it is merely a rule of construction, not a rule of law. In the present case it is entirely inapt. It presupposes a “genus” but here the only “genus” is a contract with an employer’. 30. The above passage was quoted with approval by this Court in Grasim Industries Ltd. v. Collector of Customs [(2002) 4 SCC 297] holding that Note 1(a) of Chapter 84 relevant to that case was clear and unambiguous. It did not speak of a class, category or genus followed by general words making the rule of ejusdem generis inapplicable.” “32. This would mean that the term “person” appearing in Section 364-A IPC would include a company or association or body of persons whether incorporated or not, apart from natural persons. The tenor of the provision, the context and the statutory definition of the expression “person” all militate against any attempt to restrict the meaning of the term “person” to the “Government” or “foreign State” or “international inter-governmental organisations” only.” 21. In Pioneer Urban Land and Infrastructure Ltd. v. Union of India, (2019) 8 SCC 416, this Court laid down the limits of the application of the rule of construction that is contained in the expression “noscitur a sociis” “84. It was then argued, relying on a large number of judgments that Section 5(8)(f) must be construed noscitur a sociis with clauses (a) to (e) and (g) to (i), and so construed would only refer to loans or other financial transactions which would involve money at both ends. This, again, is not correct in view of the fact that Section 5(8)(f) is clearly a residuary “catch all” provision, taking within it matters which are not subsumed within the other sub-clauses. Even otherwise, in CED v. Kantilal Trikamlal [CED v. Kantilal Trikamlal, (1976) 4 SCC 643 : 1977 SCC (Tax) 90] , this Court has held that when an expression is a residuary one, ejusdem generis will not apply. It was thus held: (SCC p. 655, para 21) “21. … We have also to stress the expression “other right” in the explanation which is of the widest import and cannot be constricted by reading it ejusdem generis with “debt”. “Other right”, in the context, is expressly meant considerably to widen the concept and therefore suggests a somewhat contrary intention to the application of the ejusdem generis rule. We may derive instruction from Green's construction of the identical expression in the English Act. [Section ‘A disclaimer is an extinguishment of a right for this purpose. Although in the event the person disclaiming never has any right in the property, he has the right to obtain it, this inchoate right is a “right” for the purposes of Section 45(2). The ejusdem generis rule does not apply to the words “a debt or other right” and the word “right” is a word of the widest import. Moreover, the expression “at the expense of the deceased” is used in an ordinary and natural manner; and is apt to cover not only cases where the extinguishment involves a loss to the deceased of a benefit he already enjoyed, but also those where it prevents him from acquiring the benefit.’” 85. Also, in Subramanian Swamy v. Union of India [Subramanian Swamy v. Union of India, (2016) 7 SCC 221 : (2016) 3 SCC (Cri) 1], this Court held: (SCC pp. 291-93, paras “70. The other aspect that is being highlighted in the context of Article 19(2) is that defamation even if conceived of to include a criminal offence, it must have the potentiality to “incite to cause an offence”. To elaborate, the submission is the words “incite to cause an offence” should be read to give attributes and characteristics of criminality to the word “defamation”. It must have the potentiality to lead to breach of peace and public order. It has been urged that the intention of clause (2) of Article 19 is to include a public law remedy in respect of a grievance that has a collective impact but not as an actionable claim under the common law by an individual and, therefore, the word “defamation” has to be understood in that context, as the associate words are “incitement to an offence” would so warrant. Mr Rao, learned Senior Counsel, astutely canvassed that unless the word “defamation” is understood in this manner applying the principle of noscitur a sociis, the cherished and natural right of freedom of speech and expression which has been recognised under Article 19(1)(a) would be absolutely at peril. Mr Narasimha, learned ASG would contend that the said rule of construction would not be applicable to understand the meaning of the term “defamation”. Be it noted, while construing the provision of Article 19(2), it is the duty of the Court to keep in view the exalted spirit, essential aspects, the value and philosophy of the Constitution. There is no doubt that the principle of noscitur a sociis can be taken recourse to in order to understand and interpret the Constitution but while applying the principle, one has applicability of the said principle. 71. In State of Bombay v. Hospital Mazdoor Sabha [State of Bombay v. Hospital Mazdoor Sabha, AIR 1960 SC 610 : (1960) 2 SCR 866] , it has been held that it must be borne in mind that noscitur a sociis is merely a rule of construction and it cannot prevail in cases where it is clear that wider words have been deliberately used in order to make the scope of the defined word correspondingly wider. It is only where the intention of the legislature in associating wider words with words of narrower significance is doubtful, or otherwise not clear that the said rule of construction can be usefully applied. It can also be applied where the meaning of the words of wider import is doubtful; but, where the object of the legislature in using wider words is clear and free of ambiguity, the rule of construction in question cannot be pressed into service. 72. In Bank of India v. Vijay Transport [Bank of India v. Vijay Transport, 1988 Supp SCC 47] , the Court was dealing with the contention that a literal interpretation is not always the only interpretation of a provision in a statute and the court has to look at the setting in which the words are used and the circumstances in which the law came to be passed to decide whether there is something implicit behind the words actually used which would control the literal meaning of the words used. For the said purpose, reliance was placed on R.L. Arora v. State of U.P. [R.L. Arora v. State of U.P., (1964) 6 SCR 784 : AIR 1964 SC 1230] Dealing with the said aspect, the Court has observed thus: (Vijay Transport case [Bank of India v. Vijay Transport, 1988 Supp SCC 47], SCC ‘11. … It may be that in interpreting the words of the provision of a statute, the setting in which consideration, but that does not mean that even though the words which are to be interpreted convey a clear meaning, still a different interpretation or meaning should be given to them because of the setting. In other words, while the setting of the words may sometimes be necessary for the interpretation of the words of the statute, but that has not been ruled by this Court to be the only and the surest method 73. The Constitution Bench, in Godfrey Phillips (India) Ltd. v. State of U.P. [Godfrey Phillips (India) Ltd. v. State of U.P., (2005) 2 SCC 515], while expressing its opinion on the aforesaid rule of construction, opined: (SCC pp. 550 & 551, paras 81 ‘81. We are aware that the maxim of noscitur a sociis may be a treacherous one unless the “societas” to which the “socii” belong, are known. The risk may be present when there is no other factor except contiguity to suggest the “societas”. But where there is, as here, a term ambiguity, the addition of the words such as “including” is sufficiently indicative of “includes” in the present context indicates a commonality or shared features or attributes of the including word with the included. principles of interpretation, we would hold that the word “luxuries” in Entry 62 of List II means the activity of enjoyment of or indulgence in that which is costly or which is generally recognised as being beyond the necessary requirements of an average member of society and not articles 74. At this juncture, we may note that in Ahmedabad Private Primary Teachers’ Assn. v. Administrative Assn. v. Administrative Officer, (2004) 1 SCC 755 : 2004 SCC (L&S) 306], it has been stated that noscitur a sociis is a legitimate rule of construction to construe the words in an Act of Parliament with reference to the words found in immediate connection with them. In this regard, we may refer to a passage from Justice G.P. Singh, Principles of where the learned author has referred to the lucid explanation given by Gajendragadkar, J. We think it ‘It is a rule wider than the rule of ejusdem generis; rather the latter rule is only an application of the former. The rule has been lucidly explained by Gajendragadkar, J. in the [Maxwell, Interpretation of Statutes (11th Edn., words which are susceptible of analogous understood to be used in their cognate sense. They take as it were their colour from each other, that is, the more general is restricted to a The learned author on further discussion has expressed the view that meaning of a word is to be judged from the company it keeps i.e. connection with them. It applies when two or meanings are coupled together, to be read and understood in their cognate sense. [G.P. Singh, Principles of Statutory Interpretation (8th Edn.) 379.] Noscitur a sociis is merely a rule of construction and cannot prevail where it is clear that wider and diverse etymology is intentionally and deliberately used in the provision. It is only when and where the intention of the legislature narrowest significance is doubtful or otherwise not clear, that the rule of noscitur a sociis is useful.” 86. It is clear from a reading of these judgments that noscitur a sociis being a mere rule of construction cannot be applied in the present case as it is clear that wider words have been deliberately used in a residuary provision, to make the scope of the definition of “financial debt” subsume matters which are not found in the other sub-clauses of Section 5(8). This contention must also, therefore, be rejected.” 22. A reading of these judgments would show that ejusdem generis and noscitur a sociis, being rules as to the construction of statutes, cannot be exalted to nullify the plain meaning of words used in a statute if they are designedly used in a wide sense. Importantly, where a residuary phrase is used as a catch-all expression to take within its scope what may reasonably be comprehended by a provision, regard being had to its object and setting, noscitur a sociis cannot be used to colour an otherwise wide expression so as to whittle it down and stultify the object of a statutory provision. 23. This then brings us to the object sought to be achieved by Section 14 of the IBC. The Report of the Insolvency Law Committee of February, 2020 throws some light on Section 14. Paragraphs 8.2 and 8.11 thereof “8.2. The moratorium under Section 14 is intended to keep the corporate debtor’s assets together during the insolvency resolution process and facilitating orderly completion of the processes envisaged during the insolvency resolution process and ensuring that the company may continue as a going concern while the creditors take a view on resolution of default. Keeping the corporate debtor running as a going concern during the CIRP helps in achieving resolution as a going concern as well, which is likely to maximize value for all stakeholders. In other jurisdictions too, a moratorium may be put in place on the advent of formal insolvency proceedings, including liquidation and reorganization proceedings. The UNCITRAL Guide notes that a moratorium is critical during reorganization proceedings since it facilitates the continued operation of the business and allows the debtor a breathing space to organize its affairs, time for preparation and approval of a reorganization plan and for other steps such as shedding unprofitable activities and onerous contracts, where appropriate.” “8.11. Further, the purpose of the moratorium is to keep the assets of the debtor together for successful insolvency resolution, and it does not bar all actions, especially where countervailing public policy concerns are involved. For instance, criminal proceedings are not considered to be barred by the moratorium, since they do not constitute “money claims or recovery” proceedings. In this regard, the Committee also noted that in some jurisdictions, laws allow regulatory claims, such as those which are not designed to collect money for the estate but to protect vital and urgent public interests, restraining activities causing environmental damage or activities that are detrimental to public health and safety to be continued during the moratorium period.” It can be seen that paragraph 8.11 refers to the very judgment under appeal before us, and cannot therefore be said to throw any light on the correct position in law which has only to be finally settled by this Court. However, paragraph 8.2 is important in that the object of a moratorium provision such as Section 14 is to see that there is no depletion of a corporate debtor’s assets during the insolvency resolution process so that it can be kept running as a going concern during this time, thus maximising value for all stakeholders. The idea is that it facilitates the continued operation of the business of the corporate debtor to allow it breathing space to organise its affairs so that a new management may ultimately take over and bring the corporate debtor out of financial sickness, thus benefitting all stakeholders, which would include workmen of the corporate debtor. Also, the judgment of this Court in Swiss Ribbons (P) Ltd. v. Union of India, (2019) 4 SCC 17 states the raison d’être for Section 14 in paragraph 28 as follows: “28. It can thus be seen that the primary focus of the legislation is to ensure revival and continuation of the corporate debtor by protecting the corporate debtor from its own management and from a corporate death by liquidation. The Code is thus a beneficial legislation which puts the corporate debtor back on its feet, not being a mere recovery legislation for creditors. The interests of the corporate debtor have, therefore, been bifurcated and separated from that of its promoters/those who are in management. Thus, the resolution process is not adversarial to the corporate debtor but, in fact, protective of its interests. The moratorium imposed by Section 14 is in the interest of the corporate debtor itself, thereby preserving the assets of the corporate debtor during the resolution process. The timelines within which the resolution process is to take place again protects the corporate debtor's assets from further dilution, and also protects all its creditors and workers by seeing that the resolution process goes through as fast as possible so that another management can, through its entrepreneurial skills, resuscitate the corporate debtor to achieve all these ends.” 24. It can thus be seen that regard being had to the object sought to be achieved by the IBC in imposing this moratorium, a quasi-criminal proceeding which would result in the assets of the corporate debtor being depleted as a result of having to pay compensation which can amount to twice the amount of the cheque that has bounced would directly impact the corporate insolvency resolution process in the same manner as the institution, continuation, or execution of a decree in such suit in a civil court for the amount of debt or other liability. Judged from the point of view of this objective, it is impossible to discern any difference between the impact of a suit and a Section 138 proceeding, insofar as the corporate debtor is concerned, on its getting the necessary breathing space to get back on its feet during the corporate insolvency resolution process. Given this fact, it is difficult to accept that noscitur a sociis or ejusdem generis should be used to cut down the width of the expression “proceedings” so as to make such proceedings analogous to civil suits. 25. Viewed from another point of view, clause (b) of Section 14(1) also makes it clear that during the moratorium period, any transfer, encumbrance, alienation, or disposal by the corporate debtor of any of its assets or any legal right or beneficial interest therein being also interdicted, yet a liability in the form of compensation payable under Section 138 would somehow escape the dragnet of Section 14(1). While Section 14(1)(a) refers to monetary liabilities of the corporate debtor, Section 14(1)(b) refers to the corporate debtor’s assets, and together, these two clauses form a scheme which shields the corporate debtor from pecuniary attacks against it in the moratorium period so that the corporate debtor gets breathing space to continue as a going concern in order to ultimately rehabilitate itself. Any crack in this shield is bound to have adverse consequences, given the object of Section 14, and cannot, by any process of interpretation, be allowed to occur. 26. Even otherwise, when some of the other provisions as to moratorium are seen in the context of individuals and firms, the provisions of Section 14 become even clearer. Thus, in Part III of the IBC, which deals with insolvency resolution and bankruptcy for individuals and partnership firms, Section 81, which occurs in Chapter II thereof, entitled “Fresh Start Process”, an interim moratorium is imposed thus: “81. Application for fresh start order.—(1) When an application is filed under Section 80 by a debtor, an interim- moratorium shall commence on the date of filing of said application in relation to all the debts and shall cease to have effect on the date of admission or rejection of such application, as the case may be. (2) During the interim-moratorium period,— (i) any legal action or legal proceeding pending in respect of any of his debts shall be deemed to (ii) no creditor shall initiate any legal action or proceedings in respect of such debt. (3) The application under Section 80 shall be in such form and manner and accompanied by such fee, as may be prescribed. (4) The application under sub-section (3) shall contain the following information supported by an affidavit, namely— (a) a list of all debts owed by the debtor as on the date of the said application along with details relating to the amount of each debt, interest payable thereon and the names of the creditors to whom each debt (b) the interest payable on the debts and the rate (c) a list of security held in respect of any of the debts; (d) the financial information of the debtor and his immediate family up to two years prior to the date of (e) the particulars of the debtor's personal details, as (f) the reasons for making the application; (g) the particulars of any legal proceedings which, to the debtor's knowledge has been commenced (h) the confirmation that no previous fresh start order under this Chapter has been made in respect of the qualifying debts of the debtor in the preceding twelve months of the date of the application.” Similarly, in Section 85, which also occurs in Chapter II in Part III of the “85. Effect of admission of application.—(1) On the date of admission of the application, the moratorium period shall commence in respect of all the debts. (a) any pending legal action or legal proceeding in respect of any debt shall be deemed to have been (b) subject to the provisions of Section 86, the creditors shall not initiate any legal action or proceedings in respect of any debt. (3) During the moratorium period, the debtor shall— (a) not act as a director of any company, or directly or indirectly take part in or be concerned in the (b) not dispose of or alienate any of his assets; (c) inform his business partners that he is undergoing (d) be required to inform prior to entering into any financial or commercial transaction of such value as may be notified by the Central Government, either individually or jointly, that he is undergoing a (e) disclose the name under which he enters into business transactions, if it is different from the name in the application admitted under Section (f) not travel outside India except with the permission of the Adjudicating Authority. (4) The moratorium ceases to have effect at the end of the period of one hundred and eighty days beginning with the date of admission unless the order admitting the application is revoked under sub-section (2) of Section 91.” 27. When the language of Section 14 and Section 85 are contrasted, it becomes clear that though the language of Section 85 is only in respect of debts, the moratorium contained in Section 14 is not subject specific. The only light thrown on the subject is by the exception provision contained in Section 14(3)(a) which is that “transactions” are the subject matter of Section 14(1). “Transaction” is, as we have seen, a much wider expression than “debt”, and subsumes it. Also, the expression “proceedings” used by the legislature in Section 14(1)(a) is not trammelled by the word “legal” as a prefix that is contained in the moratorium provisions qua individuals and firms. Likewise, the provisions of Section 96 and Section 101 are moratorium provisions in Chapter III of Part III dealing with the insolvency resolution process of individuals and firms, the same expression, namely, “debts” is used as is used in Section 85. “96. Interim-moratorium.—(1) When an application is filed (a) an interim-moratorium shall commence on the date of the application in relation to all the debts and shall cease to have effect on the date of admission (b) during the interim-moratorium period— (i) any legal action or proceeding pending in respect (ii) the creditors of the debtor shall not initiate any legal action or proceedings in respect of any debt. (2) Where the application has been made in relation to a firm, the interim-moratorium under sub-section (1) shall operate against all the partners of the firm as on the date of the application. (3) The provisions of sub-section (1) shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator.” “101. Moratorium.—(1) When the application is admitted under Section 100, a moratorium shall commence in relation to all the debts and shall cease to have effect at the end of the period of one hundred and eighty days beginning with the date of admission of the application or on the date the Adjudicating Authority passes an order on the repayment plan under Section 114, whichever is earlier. (a) any pending legal action or proceeding in respect of any debt shall be deemed to have been stayed; (b) the creditors shall not initiate any legal action or legal proceedings in respect of any debt; and (c) the debtor shall not transfer, alienate, encumber or dispose of any of his assets or his legal rights or (3) Where an order admitting the application under Section 96 has been made in relation to a firm, the moratorium under sub-section (1) shall operate against all the partners of the firm. (4) The provisions of this Section shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator.” A legal action or proceeding in respect of any debt would, on its plain language, include a Section 138 proceeding. This is for the reason that a Section 138 proceeding would be a legal proceeding “in respect of” a debt. “In respect of” is a phrase which is wide and includes anything done directly or indirectly – see Macquarie Bank Ltd. v. Shilpi Cable Technologies Ltd., (2018) 2 SCC 674 (at page 709) and Giriraj Garg v. Coal India Ltd., (2019) 5 SCC 192 (at pages 202-203). This, coupled with the fact that the Section is not limited to ‘recovery’ of any debt, would indicate that any legal proceeding even indirectly relatable to recovery of any debt would be covered. 28. When the language of these Sections is juxtaposed against the language of Section 14, it is clear that the width of Section 14 is even greater, given that Section 14 declares a moratorium prohibiting what is mentioned in clauses (a) to (d) thereof in respect of transactions entered into by the corporate debtor, inclusive of transactions relating to debts, as is contained in Sections 81, 85, 96, and 101. Also, Section 14(1)(d) is conspicuous by its absence in any of these Sections. Thus, where individuals or firms are concerned, the recovery of any property by an owner or lessor, where such property is occupied by or in possession of the individual or firm can be recovered during the moratorium period, unlike the property of a corporate debtor. For all these reasons, therefore, given the object and context of Section 14, the expression “proceedings” cannot be cut down by any rule of construction and must be given a fair meaning consonant with the object and context. It is conceded before us that criminal proceedings which are not directly related to transactions evidencing debt or liability of the corporate debtor would be outside the scope of this expression. 29. V. Ramakrishnan (supra) looked at and contrasted Section 14 with Sections 96 and 101 from the point of view of a guarantor to a debt, and “26. We are also of the opinion that Sections 96 and 101, when contrasted with Section 14, would show that Section 14 cannot possibly apply to a personal guarantor. When an application is filed under Part III, an interim-moratorium or a moratorium is applicable in respect of any debt due. First and foremost, this is a separate moratorium, applicable separately in the case of personal guarantors against whom insolvency resolution processes may be initiated under Part III. Secondly, the protection of the moratorium under these Sections is far greater than that of Section 14 in that pending legal proceedings in respect of the debt and not the debtor are stayed. The difference in language between Sections 14 and 101 is for a reason. 26.1. Section 14 refers only to debts due by corporate debtors, who are limited liability companies, and it is clear that in the vast majority of cases, personal guarantees are given by Directors who are in management of the companies. The object of the Code is not to allow such guarantors to escape from an independent and co-extensive liability to pay off the entire outstanding debt, which is why Section 14 is not applied to them. However, insofar as firms and individuals are concerned, guarantees are given in respect of individual debts by persons who have unlimited liability to pay them. And such guarantors may be complete strangers to the debtor — often it could be a personal friend. It is for this reason that the moratorium mentioned in Section 101 would cover such persons, as such moratorium is in relation to the debt and not the debtor.” These observations, when viewed in context, are correct. However, this case is distinguishable in that the difference between these provisions and Section 14 was not examined qua moratorium provisions as a whole in relation to corporate debtors vis-à-vis individuals/firms. 30. Shri Mehta, however, strongly relied upon Section 32A(1) of the IBC, which was introduced by the Insolvency and Bankruptcy Code (Amendment) Act, 2020, to argue that the first proviso to Section 32A(1) would make it clear that “prosecutions” that had been instituted during the corporate insolvency resolution process against a corporate debtor will result in a discharge of the corporate debtor from the prosecution, subject to the other requirements of sub-section (1) having been fulfilled. According to him, therefore, a prosecution of the corporate debtor under Section 138/141 of the Negotiable Instruments Act can be instituted during the corporate insolvency resolution process, making it clear that such prosecutions are, therefore, outside the ken of the moratorium provisions contained in Section 14 of the IBC. Section 32A(1) of the IBC “32A. Liability for prior offences, etc.—(1) Notwithstanding anything to the contrary contained in this Code or any other law for the time being in force, the liability of a corporate debtor for an offence committed prior to the commencement of the corporate insolvency resolution process shall cease, and the corporate debtor shall not be prosecuted for such an offence from the date the resolution plan has been approved by the Adjudicating Authority under Section 31, if the resolution plan results in the change in the management or control of the corporate debtor to a person who was not— (a) a promoter or in the management or control of the corporate debtor or a related party of such a person; or (b) a person with regard to whom the relevant investigating authority has, on the basis of material in its possession, reason to believe that he had abetted or conspired for the commission of the offence, and has submitted or filed a report or a complaint to the relevant statutory Provided that if a prosecution had been instituted during the corporate insolvency resolution process against such corporate debtor, it shall stand discharged from the date of approval of the resolution plan subject to requirements of this Provided further that every person who was a “designated partner” as defined in clause (j) of Section 2 of the Limited Liability Partnership Act, 2008 (6 of 2009), or an “officer who is in default”, as defined in clause (60) of Section 2 of the Companies Act, 2013 (18 of 2013), or was in any manner incharge of, or responsible to the corporate debtor for the conduct of its business or associated with the corporate debtor in any manner and who was directly or indirectly involved in the commission of such offence as per the report submitted or complaint filed by the investigating authority, shall continue to be liable to be prosecuted and punished for such an offence committed by the corporate debtor notwithstanding that the corporate debtor's liability has ceased under this sub-section. 31. The raison d’être for the enactment of Section 32A has been stated by the Report of the Insolvency Law Committee of February, 2020, which 17.1. Section 17 of the Code provides that on commencement of the CIRP, the powers of management of the corporate debtor vest with the interim resolution professional. Further, the powers of the Board of Directors or partners of the corporate debtor stand suspended, and are to be exercised by the interim resolution professional. Thereafter, Section 29A, read with Section 35(1)(f), places restrictions on related parties of the corporate debtor from proposing a resolution plan and purchasing the property of the corporate debtor in the CIRP and liquidation process, respectively. Thus, in most cases, the provisions of the Code effectuate a change in control of the corporate debtor that results in a clean break of the corporate debtor from its erstwhile management. However, the legal form of the corporate debtor continues in the CIRP, and may be preserved in the resolution plan. Additionally, while the property of the corporate debtor may also change hands upon resolution or liquidation, such property also continues to exist, either as property of the corporate debtor, or in the hands of the purchaser. 17.2. However, even after commencement of CIRP or after its successful resolution or liquidation, the corporate debtor, along with its property, would be susceptible to investigations or proceedings related to criminal offences committed by it prior to the commencement of a CIRP, leading to the imposition of certain liabilities and restrictions on the corporate debtor and its properties even after they were lawfully acquired by a resolution applicant or a successful bidder, respectively. Liability where a Resolution Plan has been Approved 17.3. It was brought to the Committee that this had created apprehension amongst potential resolution applicants, who did not want to take on the liability for any offences committed prior to commencement of CIRP. In one case, JSW Steel had specifically sought certain reliefs and concessions, within an annexure to the resolution plan it had submitted for approval of the Adjudicating Authority. Without relief from imposition of the such liability, the Committee noted that in the long run, potential resolution applicants could be disincentivised from proposing a resolution plan. The Committee was also concerned that resolution plans could be priced lower on an average, even where the corporate debtor did not commit any offence and was not subject to investigation, due to adverse selection by resolution applicants who might be apprehensive that they might be held liable for offences that they have not been able to detect due to information asymmetry. Thus, the threat of liability falling on bona fide persons who acquire the legal entity, could substantially lower the chances of its successful takeover by potential resolution applicants. 17.4. This could have substantially hampered the Code’s goal of value maximisation, and lowered recoveries to creditors, including financial institutions who take recourse to the Code for resolution of the NPAs on their balance sheet. At the same time, the Committee was also conscious that authorities are duty bound to penalise the commission of any offence, especially in cases involving substantial public interest. Thus, two competing concerns need to be balanced. 17.6. Given this, the Committee felt that a distinction must be drawn between the corporate debtor which may have committed offences under the control of its previous management, prior to the CIRP, and the corporate debtor that is resolved, and taken over by an unconnected resolution applicant. While the corporate debtor’s actions prior to the commencement of the CIRP must be investigated and penalised, the liability must be affixed only upon those who were responsible for the corporate debtor’s actions in this period. However, the new management of the corporate debtor, which has nothing to do with such past offences, should not be penalised for the actions of the erstwhile management of the corporate debtor, unless they themselves were involved in the commission of the offence, or were related parties, promoters or other persons in management and control of the corporate debtor at the time of or any time following the commission of the offence, and could acquire the corporate debtor, notwithstanding the prohibition under 17.7. Thus, the Committee agreed that a new Section should be inserted to provide that where the corporate debtor is successfully resolved, it should not be held liable for any offence committed prior to the commencement of the CIRP, unless the successful resolution applicant was also involved in the commission of the offence, or was a related party, promoter or other person in management and control of the corporate debtor at the time of or any time following the commission of the offence. 17.8. Notwithstanding this, those persons who were responsible to the corporate debtor for the conduct of its business at the time of the commission of such offence, should continue to be liable for such an offence, vicariously or otherwise, regardless of the fact that the corporate debtor’s liability has ceased.” 32. This Court, in Manish Kumar v. Union of India, 2021 SCC OnLine SC 30, upheld the constitutional validity of this provision. This Court “280. We are of the clear view that no case whatsoever is made out to seek invalidation of Section 32A. The boundaries of this Court's jurisdiction are clear. The wisdom of the legislation is not open to judicial review. Having regard to the object of the Code, the experience of the working of the code, the interests of all stakeholders including most importantly the imperative need to attract resolution applicants who would not shy away from offering reasonable and fair value as part of the resolution plan if the legislature thought that immunity be granted to the corporate debtor as also its property, it hardly furnishes a ground for this this Court to interfere. The provision is carefully thought out. It is not as if the wrongdoers are allowed to get away. They remain liable. The extinguishment of the criminal liability of the corporate debtor is apparently important to the new management to make a clean break with the past and start on a clean slate. We must also not overlook the principle that the impugned provision is part of an economic measure. The reverence courts justifiably hold such laws in cannot but be applicable in the instant case as well. The provision deals with reference to offences committed prior to the commencement of the CIRP. With the admission of the application the management of the corporate debtor passes into the hands of the Interim Resolution Professional and thereafter into the hands of the Resolution Professional subject undoubtedly to the control by the Committee of Creditors. As far as protection afforded to the property is concerned there is clearly a rationale behind it. Having regard to the object of the statute we hardly see any manifest arbitrariness in the provision.” 33. Section 32A cannot possibly be said to throw any light on the true interpretation of Section 14(1)(a) as the reason for introducing Section 32A had nothing whatsoever to do with any moratorium provision. At the heart of the Section is the extinguishment of criminal liability of the corporate debtor, from the date the resolution plan has been approved by the Adjudicating Authority, so that the new management may make a clean break with the past and start on a clean slate. A moratorium provision, on the other hand, does not extinguish any liability, civil or criminal, but only casts a shadow on proceedings already initiated and on proceedings to be initiated, which shadow is lifted when the moratorium period comes to an end. Also, Section 32A(1) operates only after the moratorium comes to an end. At the heart of Section 32A is the IBC’s goal of value maximisation and the need to obviate lower recoveries to creditors as a result of the corporate debtor continuing to be exposed to criminal liability. Unfortunately, the Section is inelegantly drafted. The second proviso to Section 32A(1) speaks of persons who are in any manner in charge of, or responsible to the corporate debtor for the conduct of its business or associated with the corporate debtor and who are, directly or indirectly, involved in the commission of “such offence”, i.e., the offence referred to in sub-section (1), “as per the report submitted or complaint filed by the investigating authority …”. The report submitted here refers to a police report under Section 173 of the CrPC, and complaints filed by investigating authorities under special Acts, as opposed to private complaints. If the language of the second proviso is taken to interpret the language of Section 32A(1) in that the “offence committed” under Section 32A(1) would not include offences based upon complaints under Section 2(d) of the CrPC, the width of the language would be cut down and the object of Section 32A(1) would not be achieved as all prosecutions emanating from private complaints would be excluded. Obviously, Section 32A(1) cannot be read in this fashion and clearly incudes the liability of the corporate debtor for all offences committed prior to the commencement of the corporate insolvency resolution process. Doubtless, a Section 138 proceeding would be included, and would, after the moratorium period comes to an end with a resolution plan by a new management being approved by the Adjudicating Authority, cease to be an offence qua the corporate debtor. 34. A section which has been introduced by an amendment into an Act with its focus on cesser of liability for offences committed by the corporate debtor prior to the commencement of the corporate insolvency resolution process cannot be so construed so as to limit, by a sidewind as it were, the moratorium provision contained in Section 14, with which it is not at all concerned. If the first proviso to Section 32A(1) is read in the manner suggested by Shri Mehta, it will impact Section 14 by taking out of its ken Section 138/141 proceedings, which is not the object of Section 32A(1) at all. Assuming, therefore, that there is a clash between Section 14 of the IBC and the first proviso of Section 32A(1), this clash is best resolved by applying the doctrine of harmonious construction so that the objects of both the provisions get subserved in the process, without damaging or limiting one provision at the expense of the other. If, therefore, the expression “prosecution” in the first proviso of Section 32A(1) refers to criminal proceedings properly so-called either through the medium of a First Information Report or complaint filed by an investigating authority or complaint and not to quasi-criminal proceedings that are instituted under Sections 138/141 of the Negotiable Instruments Act against the corporate debtor, the object of Section 14(1) of the IBC gets subserved, as does the object of Section 32A, which does away with criminal prosecutions in all cases against the corporate debtor, thus absolving the corporate debtor from the same after a new management comes in. 35. This brings us to the nature of proceedings under Chapter XVII of the Negotiable Instruments Act. Sections 138 to 142 of the Negotiable Instruments Act were added by Chapter XVII by an Amendment Act of “138. Dishonour of cheque for insufficiency, etc., of funds in the account.—Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this Section shall apply (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving cheque, within thirty days of the receipt of information by him from the bank regarding the (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice. Explanation.—For the purposes of this Section, “debt or other liability” means a legally enforceable debt or other liability.” 36. Section 138 contains within it the ingredients of the offence made out. The deeming provision is important in that the legislature is cognizant of the fact that what is otherwise a civil liability is now also deemed to be an offence, since this liability is made punishable by law. It is important to note that the transaction spoken of is a commercial transaction between two parties which involves payment of money for a debt or liability. The explanation to Section 138 makes it clear that such debt or other liability means a legally enforceable debt or other liability. Thus, a debt or other liability barred by the law of limitation would be outside the scope of Section 138. This, coupled with fine that may extend to twice the amount of the cheque that is payable as compensation to the aggrieved party to cover both the amount of the cheque and the interest and costs thereupon, would show that it is really a hybrid provision to enforce payment under a bounced cheque if it is otherwise enforceable in civil law. Further, though the ingredients of the offence are contained in the first part of Section 138 when the cheque is returned by the bank unpaid for the reasons given in the Section, the proviso gives an opportunity to the drawer of the cheque, stating that the drawer must fail to make payment of the amount within 15 days of the receipt of a notice, again making it clear that the real object of the provision is not to penalise the wrongdoer for an offence that is already made out, but to compensate the victim. 37. Likewise, under Section 139, a presumption is raised that the holder of a cheque received the cheque for the discharge, in whole or in part, of any debt or other liability. To rebut this presumption, facts must be adduced which, on a preponderance of probability (not beyond reasonable doubt as in the case of criminal offences), must then be proved. Section 140 is also important, in that it shall not be a defence in a prosecution for an offence under Section 138 that the drawer had no reason to believe when he issued the cheque that the cheque may be dishonoured on presentment for the reasons stated in that Section, thus making it clear that strict liability will attach, mens rea being no ingredient of the offence. Section 141 then makes Directors and other persons statutorily liable, provided the ingredients of the section are met. Interestingly, for the purposes of this Section, explanation (a) defines “company” as meaning any body corporate and includes a firm or other association of individuals. 38. We have already seen how the language of Sections 96 and 101 would include a Section 138/141 proceeding against a firm so that the moratorium stated therein would apply to such proceedings. If Shri Mehta’s arguments were to be accepted, under the same Section, namely, Section 141, two different results would ensue – so far as bodies corporate, which include limited liability partnerships, are concerned, the moratorium provision contained in Section 14 of the IBC would not apply, but so far as a partnership firm is concerned, being covered by Sections 96 and 101 of the IBC, a Section 138/141 proceeding would be stopped in its tracks by virtue of the moratorium imposed by these Sections. Thus, under Section 141(1), whereas a Section 138 proceeding against a corporate body would continue after initiation of the corporate insolvency resolution process, yet, the same proceeding against a firm, being interdicted by Sections 96 and 101, would not so continue. This startling result is one of the consequences of accepting the argument of Shri Mehta, which again leads to the position that inelegant drafting alone cannot lead to such startling results, the object of Sections 14 and 96 and 101 being the same, namely, to see that during the insolvency resolution process for corporate persons/individuals and firms, the corporate body/firm/individual should be given breathing space to recuperate for a successful resolution of its debts – in the case of a corporate debtor, through a new management coming in; and in the case of individuals and firms, through resolution plans which are accepted by a committee of creditors, by which the debtor is given breathing space in which to pay back his/its debts, which would result in creditors getting more than they would in a bankruptcy proceeding against an individual or a firm. 39. Section 142 is important and is set out hereunder: “142. Cognizance of offences.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (a) no court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the (b) such complaint is made within one month of the date on which the cause of action arises under Provided that the cognizance of a complaint may be taken by the court after the prescribed period, if the complainant satisfies the court that he had sufficient cause for not making a complaint within such period. (c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under Section 138. (2) The offence under Section 138 shall be inquired into and tried only by a court within whose local jurisdiction,— (a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains (b) if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated. Explanation.—For the purposes of clause (a), where a cheque is delivered for collection at any branch of the bank of the payee or holder in due course, then, the cheque shall be deemed to have been delivered to the branch of the bank in which the payee or holder in due course, as the case may be, maintains the account.” 40. A cursory reading of Section 142 will again make it clear that the procedure under the CrPC has been departed from. First and foremost, no court is to take cognizance of an offence punishable under Section 138 except on a complaint made in writing by the payee or the holder in due course of the cheque – the victim. Further, the language of Section 142(1) (b) would again show the hybrid nature of these provisions inasmuch as a complaint must be made within one month of the date on which the “cause of action” under clause (c) of the proviso to Section 138 arises. The expression “cause of action” is a foreigner to criminal jurisprudence, and would apply only in civil cases to recover money. Chapter XIII of the CrPC, consisting of Sections 177 to 189, is a chapter dealing with the jurisdiction of the criminal courts in inquiries and trials. When the jurisdiction of a criminal court is spoken of by these Sections, the expression “cause of action” is conspicuous by its absence. 41. By an Amendment Act of 2002, various other sections were added to this Chapter. Thus, under Section 143, it is lawful for a Magistrate to pass a sentence of imprisonment for a term not exceeding one year and a fine exceeding INR 5,000/- summarily. This provision is again an important pointer to the fact that the payment of compensation is at the heart of the provision in that a fine exceeding INR 5000/-, the sky being the limit, can be imposed by way of a summary trial which, after application of Section 357 of the CrPC, results in compensating the victim up to twice the amount of the bounced cheque. Under Section 144, the mode of service of summons is done as in civil cases, eschewing the mode contained in Sections 62 to 64 of the CrPC. Likewise, under Section 145, evidence is to be given by the complainant on affidavit, as it is given in civil proceedings, notwithstanding anything contained in the CrPC. Most importantly, by Section 147, offences under this Act are compoundable without any intervention of the court, as is required by Section 320(2) of the CrPC. 42. By another amendment made in 2018, the hybrid nature of these provisions gets a further tilt towards a civil proceeding, by the power to direct interim compensation under Sections 143A and 148 which are set “143-A. Power to direct interim compensation.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the Court trying an offence under Section 138 may order the drawer of the cheque to pay interim compensation to the complainant— (a) in a summary trial or a summons case, where he pleads not guilty to the accusation made in the (b) in any other case, upon framing of charge. (2) The interim compensation under sub-section (1) shall not exceed twenty per cent of the amount of the cheque. (3) The interim compensation shall be paid within sixty days from the date of the order under sub-section (1), or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the drawer of the cheque. (4) If the drawer of the cheque is acquitted, the Court shall direct the complainant to repay to the drawer the amount of interim compensation, with interest at the bank rate as published by the Reserve Bank of India, prevalent at the beginning of the relevant financial year, within sixty days from the date of the order, or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the complainant. (5) The interim compensation payable under this Section may be recovered as if it were a fine under Section 421 of the Code of Criminal Procedure, 1973 (2 of 1974). (6) The amount of fine imposed under Section 138 or the amount of compensation awarded under Section 357 of the Code of Criminal Procedure, 1973 (2 of 1974), shall be reduced by the amount paid or recovered as interim compensation under this Section.” “148. Power of Appellate Court to order payment pending appeal against conviction.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), in an appeal by the drawer against conviction under Section 138, the Appellate Court may order the appellant to deposit such sum which shall be a minimum of twenty per cent of the fine or compensation awarded by the trial Court: Provided that the amount payable under this sub-section shall be in addition to any interim compensation paid by the appellant under Section 143-A. (2) The amount referred to in sub-section (1) shall be deposited within sixty days from the date of the order, or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the appellant. (3) The Appellate Court may direct the release of the amount deposited by the appellant to the complainant at any time Provided that if the appellant is acquitted, the Court shall direct the complainant to repay to the appellant the amount so released, with interest at the bank rate as published by the Reserve Bank of India, prevalent at the beginning of the relevant financial year, within sixty days from the date of the order, or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the complainant.” 43. With this analysis of Chapter XVII, let us look at some of the decided cases. In CIT v. Ishwarlal Bhagwandas, (1966) 1 SCR 190, this Court distinguished between civil proceedings and criminal proceedings in the context of Article 132 of the Constitution thus: “… The expression “civil proceeding” is not defined in the Constitution, nor in the General Clauses Act. The expression in our judgment covers all proceedings in which a party asserts the existence of a civil right conferred by the civil law or by statute, and claims relief for breach thereof. A criminal proceeding on the other hand is ordinarily one in which if carried to its conclusion it may result in the imposition of sentences such as death, imprisonment, fine or forfeiture of property. It also includes proceedings in which in the larger interest of the State, orders to prevent apprehended breach of the peace, orders to bind down persons who are a danger to the maintenance of peace and order, or orders aimed at preventing vagrancy are contemplated to be passed. But the whole area of proceedings, which reach the High Courts is not exhausted by classifying the proceedings as civil and criminal. There are certain proceedings which may be regarded as neither civil nor criminal. For instance, proceeding for contempt of court, and for exercise of disciplinary jurisdiction against lawyers or other professionals, such as Chartered Accountants may not fall within the classification of proceedings, civil or criminal. But there is no warrant for the view that from the category of civil proceedings, it was intended to exclude proceedings relating to or which seek relief against enforcement of taxation laws of the State. The primary object of a taxation statute is to collect revenue for the governance of the State or for providing specific services and such laws directly affect the civil rights of the tax-payer. If a person is called upon to pay tax which the State is not competent to levy, or which is not imposed in accordance with the law which permits imposition of the tax, or in the levy, assessment and collection of which rights of the tax-payer are infringed in a manner not warranted by the statute, a proceeding to obtain relief whether it is from the tribunal set up by the taxing statute, or from the civil court would be regarded as a civil proceeding. The character of the proceeding, in our judgment, depends not upon the nature of the tribunal which is invested with authority to grant relief, but upon the nature of the right violated and the appropriate relief which may be claimed. A civil proceeding is, therefore, one in which a person seeks to enforce by appropriate relief the alleged infringement of his civil rights against another person or the State, and which if the claim is proved would result in the declaration express or implied of the right claimed and relief such as payment of debt, damages, compensation, delivery of specific property, enforcement of personal rights, determination of status etc.” “A large number of cases have arisen before the High Courts in India in which conflicting views about the meaning of the expression “civil proceeding” were pressed. In some cases it was held that the expression “civil proceeding” excludes a proceeding instituted in the High Court for the issue of a writ whatever may be the nature of the right infringed and the relief claimed in other cases it has been held that a proceeding resulting from an application for a writ under Article 226 of the Constitution may in certain cases be deemed to be a “civil proceeding”, if the claim made, the right infringed and the relief sought warrant that inference: in still another set of cases it has been held that even if a proceeding commenced by a petition for a writ be generally categorised as a civil proceeding, where the jurisdiction which the High Court exercises relates to revenue, the proceeding is not civil. A perusal of the reasons given in the cases prompt the following observations. There are two preliminary conditions to the exercise of the power to grant certificate: (a) there must be a judgment, decree or final order, and that judgment, decree or final order must be made in a civil proceeding. An advisory opinion in a tax reference may not be appealed from with certificate under Article 133 because the opinion is not a judgment, decree or final order, and (b) a proceeding does not cease to be civil, when relief is claimed for enforcement of civil rights merely because the proceeding is not tried as a civil suit. In a large majority of the cases in which the jurisdiction of the High Court to certify a case under Article 133(1) was negatived it appears to have been assumed that the expression “other proceeding” used in Article 132 of the Constitution is or includes a proceeding of the nature of a revenue proceeding, and therefore the expression “civil proceeding” in Article 133(1) does not include a revenue proceeding. This assumption for reasons already set out is erroneous.” A perusal of this judgment would show that a civil proceeding is not necessarily a proceeding which begins with the filing of a suit and culminates in execution of a decree. It would include a revenue proceeding as well as a writ petition filed under Article 226 of the Constitution, if the reliefs therein are to enforce rights of a civil nature. Interestingly, criminal proceedings are stated to be proceedings in which the larger interest of the State is concerned. Given these tests, it is clear that a Section 138 proceeding can be said to be a “civil sheep” in a “criminal wolf’s” clothing, as it is the interest of the victim that is sought to be protected, the larger interest of the State being subsumed in the victim alone moving a court in cheque bouncing cases, as has been seen by us in the analysis made hereinabove of Chapter XVII of the Negotiable 44. In Goaplast (P) Ltd. v. Chico Ursula D’Souza, (2003) 3 SCC 232, the object sought to be achieved by Section 138 is succinctly set out in “3. The learned counsel for the appellant has submitted that mere writing of letter to the bank stopping payment of the post-dated cheques does not take the case out of the purview of the Act. He has invited our attention to the object behind the provision contained in Chapter XVII of the Act. For appreciating the issue involved in the present case, it is necessary to refer to the object behind introduction of Chapter XVII containing Sections 138 to 142. This chapter was introduced in the Act by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 (Act 66 of 1988) with the object of inculcating faith in the efficacy of banking operations and giving credibility to negotiable instruments in business transactions and in order to promote efficacy of banking operations. With the policy of liberalisation adopted by the country which brought about increase in international trade and commerce, it became necessary to inculcate faith in banking. World trade is carried through banking operations rather than cash transactions. The amendment was intended to create an atmosphere of faith and reliance on banking system. Therefore, while considering the question of applicability of Section 138 of the Act to a situation presented by the facts of the present case, it is necessary to keep the objects of the legislation in mind. If a party is allowed to use a cheque as a mode of deferred payment and the payee of the cheque on the faith that he will get his payment on the due date accepts such deferred payment by way of cheque, he should not normally suffer on account of non-payment. The faith, which the legislature has desired that such instruments should inspire in commercial transactions would be completely lost if parties are as a matter of routine allowed to interdict payment by issuing instruction to banks to stop payment of cheques. In today's world where use of cash in day-to-day life is almost getting extinct and people are using negotiable instruments in commercial transactions and plastic money for their daily needs as consumers, it is all the more necessary that people's faith in such instruments should be strengthened rather than weakened. Provisions contained in Sections 138 to 142 of the Act are intended to discourage people from not honouring their commitments by way of payment through cheques. It is desirable that the court should lean in favour of an interpretation which serves the object of the statute. The penal provisions contained in Sections 138 to 142 of the Act are intended to ensure that obligations undertaken by issuing cheques as a mode of payment are honoured. A post-dated cheque will lose its credibility and acceptability if its payment can be stopped routinely. A cheque is a well-recognized mode of payment and post-dated cheques are often used in various transactions in daily life. The purpose of a post-dated cheque is to provide some accommodation to the drawer of the cheque. Therefore, it is all the more necessary that the drawer of the cheque should not be allowed to abuse the accommodation given to him by a creditor by way of acceptance of a post-dated cheque. If stoppage of payment of a post-dated cheque is permitted to take the case out of the purview of Section 138 of the Act, it will amount to allowing the party to take advantage of his own wrong.” 45. In Vinay Devanna Nayak v. Ryot Sewa Sahakari Bank Ltd., (2008) 2 SCC 305, a Division Bench of this Court referred to the object of “16. Section 138 of the Act was inserted by the Banking, Public Financial Institutions and Negotiable Instruments Law (Amendment) Act, 1988 (Act 66 of 1988) to regulate financial promises in growing business, trade, commerce and industrial activities of the country and the strict liability to promote greater vigilance in financial matters. The incorporation of the provision is designed to safeguard the faith of the creditor in the drawer of the cheque, which is essential to the economic life of a developing country like India. The provision has been introduced with a view to curb cases of issuing cheques indiscriminately by making stringent provisions and safeguarding interest of creditors. 17. As observed by this Court in Electronics Trade & Technology Development Corpn. Ltd. v. Indian Technologists SCC (Cri) 454] the object of bringing Section 138 in the statute book is to inculcate faith in the efficacy of banking operations and credibility in transacting business on negotiable instruments. The provision is intended to prevent dishonesty on the part of the drawer of negotiable instruments in issuing cheques without sufficient funds or with a view to inducing the payee or holder in due course to act upon it. It thus seeks to promote the efficacy of bank operations and ensures credibility in transacting business through cheques. In such matters, therefore, normally compounding of offences should not be denied. Presumably, Parliament also realised this aspect and inserted Section 147 by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 (Act 55 of 2002). The said Section reads thus: Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under this Act shall be compoundable.” 46. Damodar S. Prabhu v. Sayed Babalal H., (2010) 5 SCC 663 is an important judgment of three Hon’ble Judges of this Court. This judgment dealt, in particular, with the compounding provision contained in Section 147 of the Negotiable Instruments Act. Setting out the provision, the Court “10. At present, we are of course concerned with Section 147 Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under this Act shall be compoundable.” At this point, it would be apt to clarify that in view of the non obstante clause, the compounding of offences under the Negotiable Instruments Act, 1881 is controlled by Section 147 and the scheme contemplated by Section 320 of the Code of Criminal Procedure (hereinafter “CrPC”) will not be applicable in the strict sense since the latter is meant for the specified offences under the Penal Code, 1860. 11. So far as CrPC is concerned, Section 320 deals with offences which are compoundable, either by the parties without the leave of the court or by the parties but only with the leave of the court. Sub-section (1) of Section 320 enumerates the offences which are compoundable without the leave of the court, while sub-section (2) of the said Section specifies the offences which are compoundable with the leave of the court. 12. Section 147 of the Negotiable Instruments Act, 1881 is in the nature of an enabling provision which provides for the compounding of offences prescribed under the same Act, thereby serving as an exception to the general rule incorporated in sub-section (9) of Section 320 CrPC which states that “No offence shall be compounded except as provided by this Section”. A bare reading of this provision would lead us to the inference that offences punishable under laws other than the Penal Code also cannot be compounded. However, since Section 147 was inserted by way of an amendment to a special law, the same will override the effect of Section 320(9) CrPC, especially keeping in mind that Section 147 carries a non obstante clause.” “15. The compounding of the offence at later stages of litigation in cheque bouncing cases has also been held to be permissible in a recent decision of this Court, reported as K.M. Ibrahim v. K.P. Mohammed [(2010) 1 SCC 798 : (2010) 1 SCC (Cri) 921 : (2009) 14 Scale 262] wherein Kabir, “13. As far as the non obstante clause included in Section 147 of the 1881 Act is concerned, the 1881 Act being a special statute, the provisions of Section 147 will have an overriding effect over the provisions of the Code relating to compounding of 14. It is true that the application under Section 147 of the Negotiable Instruments Act was made by the parties after the proceedings had been concluded before the appellate forum. However, Section 147 of the aforesaid Act does not bar the parties from compounding an offence under Section 138 even at the appellate stage of the proceedings. Accordingly, we find no reason to reject the application under Section 147 of the aforesaid Act even in a proceeding under Article 136 of the Constitution.” 16. It is evident that the permissibility of the compounding of an offence is linked to the perceived seriousness of the offence and the nature of the remedy provided. On this point we can refer to the following extracts from an academic commentary [cited from: K.N.C. Pillai, R.V. Kelkar's Criminal “17.2. Compounding of offences.—A crime is essentially a wrong against the society and the State. Therefore any compromise between the accused person and the individual victim of the crime should not absolve the accused from criminal responsibility. However, where the offences are essentially of a private nature and relatively not quite serious, the Code considers it compoundable offences and some others as compoundable only with the permission of the court.” 17. In a recently published commentary, the following observations have been made with regard to the offence punishable under Section 138 of the Act [cited from: Arun Mohan, Some thoughts towards law reforms on the topic of Section 138, Negotiable Instruments Act—Tackling an avalanche of cases (New Delhi: Universal Law Publishing Co. “… Unlike that for other forms of crime, the punishment here (insofar as the complainant is concerned) is not a means of seeking retribution, but is more a means to ensure payment of money. The complainant's interest lies primarily in recovering the money rather than seeing the drawer of the cheque in jail. The threat of jail is only a mode to ensure recovery. As against the accused who is willing to undergo a jail term, there is little available as remedy for the holder of the cheque. If we were to examine the number of complaints filed which were ‘compromised’ or ‘settled’ before the final judgment on one side and the cases which proceeded to judgment and conviction on the other, we will find that the bulk was settled and only a miniscule number continued.” 18. It is quite obvious that with respect to the offence of dishonour of cheques, it is the compensatory aspect of the remedy which should be given priority over the punitive aspect. …” This judgment was followed by a Division Bench of this Court in JIK Industries Ltd. v. Amarlal V. Jumani, (2012) 3 SCC 255, stating: “68. It is clear from a perusal of the aforesaid Statement of Objects and Reasons that offence under the NI Act, which was previously non-compoundable in view of Section 320 sub- section (9) of the Code has now become compoundable. That does not mean that the effect of Section 147 is to obliterate all statutory provisions of Section 320 of the Code relating to the mode and manner of compounding of an offence. Section 147 will only override Section 320(9) of the Code insofar as offence under Section 147 of the NI Act is concerned. This is also the ratio in Damodar [(2010) 5 SCC 663 : (2010) 2 SCC (Civ) 520 : (2010) 2 SCC (Cri) 1328] (see para 12). Therefore, the submission of the learned counsel for the appellant to the contrary cannot be accepted.” The Court then went into the history of compounding in criminal law as “78. Compounding as codified in Section 320 of the Code has a historical background. In common law compounding was considered a misdemeanour. In Kenny’s Outlines of Criminal Law (19th Edn., 1966) the concept of compounding has been “422. Mercy should be shown, not sold.—It is a misdemeanour at common law to ‘compound’ a misdemeanour); i.e. to bargain, for value, to abstain from prosecuting the offender who has committed a crime. You commit this offence if you promise a thief not to prosecute him if only he will return the goods he stole from you; but you may lawfully take them back if you make no such promise. You may show mercy, but must not sell mercy. This offence of compounding is committed by the bare act of agreement; even though the compounder afterwards breaks his agreement and prosecutes the criminal. And inasmuch as the law permits not merely the person injured by a crime, but also all other members of the community, to prosecute, it is criminal for anyone to make such a composition; even though he suffered no injury and indeed has no concern with the crime.” 79. Russell on Crime (12th Edn.) also describes: “Agreements not to prosecute or to stifle a prosecution for a criminal offence are in certain cases criminal.” 80. Later on compounding was permitted in certain categories of cases where the rights of the public in general are not affected but in all cases such compounding is permissible with the consent of the injured party. 81. In our country also when the Criminal Procedure Code, 1861 was enacted it was silent about the compounding of offence. Subsequently, when the next Code of 1872 was introduced it mentioned about compounding in Section 188 by providing the mode of compounding. However, it did not contain any provision declaring what offences were compoundable. The decision as to what offences were compoundable was governed by reference to the exception to Section 214 of the Penal Code. The subsequent Code of 1898 provided Section 345 indicating the offences which were compoundable but the said section was only made applicable to compounding of offences defined and permissible under the Penal code. The present Code, which repealed the 1898 Code, contains Section 320 containing comprehensive provisions for compounding. 82. A perusal of Section 320 makes it clear that the provisions contained in Section 320 and the various sub-sections is a code by itself relating to compounding of offence. It provides for the various parameters and procedures and guidelines in the matter of compounding. If this Court upholds the contention of the appellant that as a result of incorporation of Section 147 in the NI Act, the entire gamut of procedure of Section 320 of the Code are made inapplicable to compounding of an offence under the NI Act, in that case the compounding of offence under the NI Act will be left totally unguided or uncontrolled. Such an interpretation apart from being an absurd or unreasonable one will also be contrary to the provisions of Section 4(2) of the Code, which has been discussed above. There is no other statutory procedure for compounding of offence under the NI Act. Therefore, Section 147 of the NI Act must be reasonably construed to mean that as a result of the said section the offences under the NI Act are made compoundable, but the main principle of such compounding, namely, the consent of the person aggrieved or the person injured or the complainant cannot be wished away nor can the same be substituted by virtue of Section 147 of the NI Act.” 47. In Kaushalya Devi Massand v. Roopkishore Khore, (2011) 4 SCC 593, a Division Bench of this Court succinctly stated: “11. Having considered the submissions made on behalf of the parties, we are of the view that the gravity of a complaint under the Negotiable Instruments Act cannot be equated with an offence under the provisions of the Penal Code, 1860 or other criminal offences. An offence under Section 138 of the Negotiable Instruments Act, 1881, is almost in the nature of a civil wrong which has been given criminal overtones.” (This is the clearest enunciation of a Section 138 proceeding being a “civil sheep” in a “criminal wolf’s” clothing.) 48. In R. Vijayan v. Baby, (2012) 1 SCC 260, this Court referred to the provisions of Chapter XVII of the Negotiable Instruments Act, observing that Chapter XVII is a unique exercise which blurs the dividing line between civil and criminal jurisdictions. The Court held: “16. We propose to address an aspect of the cases under Section 138 of the Act, which is not dealt with in Damodar S. 2 SCC (Civ) 520] . It is sometimes said that cases arising under Section 138 of the Act are really civil cases masquerading as criminal cases. The avowed object of Chapter XVII of the Act is to “encourage the culture of use of cheques and enhance the credibility of the instrument”. In effect, its object appears to be both punitive as also compensatory and restitutive, in regard to cheque dishonour cases. Chapter XVII of the Act is a unique exercise which blurs the dividing line between civil and criminal jurisdictions. It provides a single forum and single proceeding, for enforcement of criminal liability (for dishonouring the cheque) and for enforcement of the civil liability (for realisation of the cheque amount) thereby obviating the need for the creditor to move two different fora for relief. This is evident from the following provisions of Chapter XVII of the Act: (i) The provision for levy of fine which is linked to the amount of the cheque (Section 138) thereby rendering Section 357(3) virtually infructuous insofar as cheque dishonour cases are concerned. (ii) The provision enabling a First Class Magistrate to levy fine exceeding Rs 5000 (Section 143) notwithstanding the ceiling to the fine, as Rs 5000 imposed by Section 29(2) of the Code. (iii) The provision relating to mode of service of summons (Section 144) as contrasted from the mode prescribed for criminal cases in Section 62 of the Code. (iv) The provision for taking evidence of the complainant by affidavit (Section 145) which is more prevalent in civil proceedings, as contrasted from the procedure for recording evidence in the (v) The provision making all offences punishable under Section 138 of the Act compoundable. 17. The apparent intention is to ensure that not only the offender is punished, but also ensure that the complainant invariably receives the amount of the cheque by way of compensation under Section 357(1)(b) of the Code. Though a complaint under Section 138 of the Act is in regard to criminal liability for the offence of dishonouring the cheque and not for the recovery of the cheque amount (which strictly speaking, has to be enforced by a civil suit), in practice once the criminal complaint is lodged under Section 138 of the Act, a civil suit is seldom filed to recover the amount of the cheque. This is because of the provision enabling the court to levy a fine linked to the cheque amount and the usual direction in such cases is for payment as compensation, the cheque amount, as loss incurred by the complainant on account of dishonour of cheque, under Section 357(1)(b) of the Code and the provision for compounding the offences under Section 138 of the Act. Most of the cases (except those where liability is denied) get compounded at one stage or the other by payment of the cheque amount with or without interest. Even where the offence is not compounded, the courts tend to direct payment of compensation equal to the cheque amount (or even something more towards interest) by levying a fine commensurate with the cheque amount. A stage has reached when most of the complainants, in particular the financing institutions (particularly private financiers) view the proceedings under Section 138 of the Act, as a proceeding for the recovery of the cheque amount, the punishment of the drawer of the cheque for the offence of dishonour, becoming secondary.” 49. In Dashrath Rupsingh Rathod v. State of Maharashtra, (2014) 9 SCC 129, a three-Judge Bench of this Court answered the question as to whether the territorial jurisdiction for filing of cheque dishonour complaints is restricted to the court within whose territorial jurisdiction the offence is committed, which is the location where the cheque is dishonoured, i.e., returned unpaid by the bank on which it is drawn. This judgment has been legislatively overruled by Section 142(2) of the Negotiable Instruments Act set out hereinabove. However, Shri Mehta relied upon paragraphs 15.2 and 17 of the judgment of Vikramjit Sen, J., which states as follows: “15.2. We have undertaken this succinct study mindful of the fact that Parliamentary debates have a limited part to play in interpretation of statutes, the presumption being that legislators have the experience, expertise and language skills to draft laws which unambiguously convey their intentions and expectations for the enactments. What is palpably clear is that Parliament was aware that they were converting civil liability into criminal content inter alia by the deeming fiction of culpability in terms of the pandect comprising Section 138 and the succeeding sections, which severely curtail defences to prosecution. Parliament was also aware that the offence of cheating, etc. already envisaged in IPC, continued to be available.” “17. The marginal note of Section 138 of the NI Act explicitly defines the offence as being the dishonour of cheques for insufficiency, etc. of funds in the account. Of course, the headings, captions or opening words of a piece of legislation are normally not strictly or comprehensively determinative of the sweep of the actual Section itself, but it does presage its intendment. See Frick India Ltd. v. Union of India [(1990) 1 SCC 400 : 1990 SCC (Tax) 185] and Forage & Co. v. Municipal Corpn. of Greater Bombay [(1999) 8 SCC 577]. Accordingly, unless the provisions of the section clearly point to the contrary, the offence is concerned with the dishonour of a cheque; and in the conundrum before us the body of this provision speaks in the same timbre since it refers to a cheque being “returned by the bank unpaid”. None of the provisions of IPC have been rendered nugatory by Section 138 of the NI Act and both operate on their own. It is trite that mens rea is the quintessential of every crime. The objective of Parliament was to strengthen the use of cheques, distinct from other negotiable instruments, as mercantile tender and therefore it became essential for Section 138 of the NI Act offence to be freed from the requirement of proving mens rea. This has been achieved by deeming the commission of an offence dehors mens rea not only under Section 138 but also by virtue of the succeeding two sections. Section 139 carves out the presumption that the holder of a cheque has received it for the discharge of any liability. Section 140 clarifies that it will not be available as a defence to the drawer that he had no reason to believe, when he issued the cheque, that it would be dishonoured. Section 138 unequivocally states that the offence is committed no sooner the drawee bank returns the cheque unpaid.” The focus in this case was on the court within whose jurisdiction the offence under Section 138 can be said to have taken place. This case, therefore, has no direct relevance to the point that has been urged before 50. In Lafarge Aggregates & Concrete India (P) Ltd. v. Sukarsh Azad, (2014) 13 SCC 779, this Court, continuing the trend of the earlier judgments in describing the hybrid nature of these provisions, held: “6. The respondents have agreed to pay the said amount but the appellant has refused to accept the payment and insisted that the appeal against rejection of the recall application should be allowed by this Court. The counsel for the appellant submitted that merely because the accused has offered to make the payment at a later stage, the same cannot compel the complainant appellant to accept it and the complainant appellant would be justified in pursuing the complaint which was lodged under the Negotiable Instruments Act, 1881. In support of his submission, the counsel for the appellant also relied on Rajneesh Aggarwal v. Amit J. Bhalla [(2001) 1 SCC 7. However, we do not feel persuaded to accept this submission as the appellant has to apprise himself that the primary object and reason of the Negotiable Instruments Act, 1 The judgment in Rajneesh Aggarwal v. Amit J. Bhalla, (2001) 1 SCC 631 was delivered prior to the 2002 and 2018 Amendment Acts to the Negotiable Instruments Act. The perceptible shift in the provisions by introducing Sections 143 to 148 has been noticed by this Court hereinabove, as a result of which the observations contained in this judgment would no longer be valid. 1881, is not merely penal in nature but is to maintain the efficiency and value of a negotiable instrument by making the accused honour the negotiable instrument and paying the amount for which the instrument had been executed. 8. The object of bringing Sections 138 to 142 of the Negotiable Instruments Act on statute appears to be to inculcate faith in the efficacy of banking operations and credibility in transacting business of negotiable instruments. Despite several remedies, Section 138 of the Act is intended to prevent dishonesty on the part of the drawer of negotiable instrument to draw a cheque without sufficient funds in his account maintained by him in a bank and induces the payee or holder in due course to act upon it. Therefore, once a cheque is drawn by a person of an account maintained by him for payment of any amount or discharge of liability or debt or is returned by a bank with endorsement like (i) refer to drawer, (ii) exceeds arrangements, and (iii) instruction for stop payment and like other usual endorsement, it amounts to dishonour within the meaning of Section 138 of the Act. Therefore, even after issuance of notice if the payee or holder does not make the payment within the stipulated period, the statutory presumption would be of dishonest intention exposing to criminal liability.” “10. However, in the interest of equity, justice and fair play, we deem it appropriate to direct the respondents to make the payment to the appellant by issuing a demand draft in their favour for a sum of Rs 5 lakhs, which would be treated as an overall amount including interest and compensation towards the cheque for which stop-payment instructions had been issued. If the same is not acceptable to the appellant, it is their choice but that would not allow them to prosecute the respondents herein in pursuance to the complaint which they have lodged implicating these two respondents.” 51. In Meters and Instruments (P) Ltd. v. Kanchan Mehta, (2018) 1 SCC 560, this Court noticed the object of Section 138 and the amendments made to Chapter XVII, and summarised the case law as “6. The object of introducing Section 138 and other provisions of Chapter XVII in the Act in the year 1988 [Vide the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988] was to enhance the acceptability of cheques in the settlement of liabilities. The drawer of cheque is made liable to prosecution on dishonour of cheque with safeguards to prevent harassment of honest drawers. The Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 to amend the Act was brought in, inter alia, to simplify the procedure to deal with such matters. The amendment includes provision for service of summons by speed post/courier, summary trial and making the offence compoundable. 7. This Court has noted that the object of the statute was to facilitate smooth functioning of business transactions. The provision is necessary as in many transactions cheques were issued merely as a device to defraud the creditors. Dishonour of cheque causes incalculable loss, injury and inconvenience to the payee and credibility of business transactions suffers a setback. [Goaplast (P) Ltd. v. Chico Ursula D'Souza, (2004) 2 SCC 235, p. 248, para 26 : 2004 SCC (Cri) 499] At the same time, it was also noted that nature of offence under Section 138 primarily related to a civil wrong and the 2002 Amendment specifically made it compoundable. [Vinay Devanna Nayak v. Ryot Sewa Sahakari Bank Ltd., (2008) 2 The offence was also described as “regulatory offence”. The burden of proof was on the accused in view of presumption under Section 139 and the standard of proof was of “preponderance of probabilities”. [Rangappa v. Sri Mohan, (2010) 11 SCC 441, p. 454, para 28 : (2010) 4 SCC (Civ) 477 : (2011) 1 SCC (Cri) 184] The object of the provision was described as both punitive as well as compensatory. The intention of the provision was to ensure that the complainant received the amount of cheque by way of compensation. Though proceedings under Section 138 could not be treated as civil suits for recovery, the scheme of the provision, providing for punishment with imprisonment or with fine which could extend to twice the amount of the cheque or to both, made the intention of law clear. The complainant could be given not only the cheque amount but double the amount so as to cover interest and costs. Section 357(1)(b) CrPC provides for payment of compensation for the loss caused by the offence out of the fine. [R. Vijayan v. Baby, (2012) 1 SCC 260, p. 264, para 9 : (2012) 1 SCC (Civ) 79 : (2012) 1 SCC (Cri) 520] Where fine is not imposed, compensation can be awarded under Section 357(3) CrPC to the person who suffered loss. Sentence in default can also be imposed. The object of the provision is not merely penal but to make the accused honour the negotiable instruments. [Lafarge Aggregates & Concrete India (P) Ltd. v. Sukarsh Azad, (2014) 13 SCC 779, p. 781, para 7 : (2014) 5 SCC (Cri) 818]” “18. From the above discussion the following aspects emerge: 18.1. Offence under Section 138 of the Act is primarily a civil wrong. Burden of proof is on the accused in view of presumption under Section 139 but the standard of such proof is “preponderance of probabilities”. The same has to be normally tried summarily as per provisions of summary trial under CrPC but with such variation as may be appropriate to proceedings under Chapter XVII of the Act. Thus read, principle of Section 258 CrPC will apply and the court can close the proceedings and discharge the accused on satisfaction that the cheque amount with assessed costs and interest is paid and if there is no reason to proceed with the punitive aspect. 18.2. The object of the provision being primarily compensatory, punitive element being mainly with the object of enforcing the compensatory element, compounding at the initial stage has to be encouraged but is not debarred at later stage subject to appropriate compensation as may be found acceptable to the parties or the court. 18.3. Though compounding requires consent of both parties, even in absence of such consent, the court, in the interests of justice, on being satisfied that the complainant has been duly compensated, can in its discretion close the proceedings and discharge the accused. 18.4. Procedure for trial of cases under Chapter XVII of the Act has normally to be summary. The discretion of the Magistrate under second proviso to Section 143, to hold that it was undesirable to try the case summarily as sentence of more than one year may have to be passed, is to be exercised after considering the further fact that apart from the sentence of imprisonment, the court has jurisdiction under Section 357(3) CrPC to award suitable compensation with default sentence under Section 64 IPC and with further powers of recovery under Section 431 CrPC. With this approach, prison sentence of more than one year may not be required in all cases. 18.5. Since evidence of the complaint can be given on affidavit, subject to the court summoning the person giving affidavit and examining him and the bank's slip being prima facie evidence of the dishonour of cheque, it is unnecessary for the Magistrate to record any further preliminary evidence. Such affidavit evidence can be read as evidence at all stages of trial or other proceedings. The manner of examination of the person giving affidavit can be as per Section 264 CrPC. The scheme is to follow summary procedure except where exercise of power under second proviso to Section 143 becomes necessary, where sentence of one year may have to be awarded and compensation under Section 357(3) is considered inadequate, having regard to the amount of the cheque, the financial capacity and the conduct of the accused 52. In a recent judgment in M. Abbas Haji v. T.N. Channakeshava, “6. It is urged before us that the High Court overstepped the limits which the appellate court is bound by criminal cases setting aside an order of acquittal. Proceedings under Section 138 of the Act are quasi-criminal proceedings. The principles, which apply to acquittal in other criminal cases, cannot apply to these cases. …” Likewise, in H.N. Jagadeesh v. R. Rajeshwari, (2019) 16 SCC 730, this Court again alluded to the quasi-criminal nature of the offence as follows: “7. The learned counsel for the respondent has submitted that in order to advance the cause of justice, such an approach is 2 This judgment was subsequently referred to with approval in Makwana Mangaldas Tulsidas v. State of Gujarat, (2020) 4 SCC 695 (at paragraphs 17 and 18). permissible and for this purpose he has relied upon the judgment of this Court in Zahira Habibulla H. Sheikh v. State of Gujarat [Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158 : 2004 SCC (Cri) 999] . We are afraid that the ratio of the aforesaid judgment cannot be extended to the facts of this case, particularly when we find that the present case is a complaint case filed by the respondent under Section 138 of the Act and where the proceedings are also of quasi-criminal nature.” 53. A conspectus of these judgments would show that the gravamen of a proceeding under Section 138, though couched in language making the act complained of an offence, is really in order to get back through a summary proceeding, the amount contained in the dishonoured cheque together with interest and costs, expeditiously and cheaply. We have already seen how it is the victim alone who can file the complaint which ordinarily culminates in the payment of fine as compensation which may extend to twice the amount of the cheque which would include the amount of the cheque and the interest and costs thereupon. Given our analysis of Chapter XVII of the Negotiable Instruments Act together with the amendments made thereto and the case law cited hereinabove, it is clear that a quasi-criminal proceeding that is contained in Chapter XVII of the Negotiable Instruments Act would, given the object and context of Section 14 of the IBC, amount to a “proceeding” within the meaning of Section 14(1)(a), the moratorium therefore attaching to such proceeding. 54. Shri Lekhi, learned Additional Solicitor General, took strong objection to the use of the expression “quasi-criminal” to describe proceedings under Section 138 of the Negotiable Instruments Act, which, according to him, can only be described as criminal proceedings. This is for the reason that these proceedings result in imprisonment or fine or both, which are punishments that can be imposed only in criminal proceedings as stated by Section 53 of the Indian Penal Code. It is difficult to agree with Shri Lekhi. There are many instances of acts which are punishable by imprisonment or fine or both which have been described as quasi-criminal. One instance is the infraction of Section 630 of the Companies Act, 1956. This section reads as follows: “630. Penalty for wrongful withholding of property.—(1) If (a) wrongfully obtains possession of any property of a (b) having any such property in his possession, wrongfully withholds it or knowingly applies it to purposes other than those expressed or directed in the articles and authorised by he shall, on the complaint of the company or any creditor or contributory thereof, be punishable with fine which may extend to ten thousand rupees. (2) The Court trying the offence may also order such officer or employee to deliver up or refund, within a time to be fixed by the Court, any such property wrongfully obtained or wrongfully withheld or knowingly misapplied or in default, to suffer imprisonment for a term which may extend to two years.” In Abhilash Vinodkumar Jain v. Cox & Kings (India) Ltd., (1995) 3 SCC 732, this Court examined whether a petition under Section 630 of the Companies Act, 1956 is maintainable against the legal heirs of a deceased officer or employee for retrieval of the company’s property. In holding that it was so retrievable, this Court held: “15. Even though Section 630 of the Act falls in Part XIII of the Companies Act and provides for penal consequences for wrongful withholding of the property of the company, the provisions strictly speaking are not penal in the sense as understood under the penal law. The provisions are quasi- criminal. They have been enacted with the main object of providing speedy relief to a company when its property is wrongfully obtained or wrongfully withheld by an employee or officer or an ex-employee or ex-officer or anyone claiming under them. In our opinion, a proper construction of the section would be that the term “officer or employee” of a company in Section 630 of the Act would by a deeming fiction include the legal heirs and representatives of the employee or the officer concerned continuing in occupation of the property of the company after the death of the employee or the officer. 16. Under sub-section (1) of Section 630 for the wrongful obtaining of the possession of the property of the company or wrongfully withholding it or knowingly applying it to a purpose other than that authorised by the company, the employee or the officer concerned is “punishable with fine which may extend to one thousand rupees”. The ‘fine’ under this sub- section is to be understood in the nature of ‘compensation’ for wrongful withholding of the property of the company. Under sub-section (2) what is made punishable is the disobedience of the order of the Court, directing the person, continuing in occupation, after the right of the employee or the officer to occupation has extinguished, to deliver up or refund within a time to be fixed by the court, the property of the company obtained or wrongfully withheld or knowingly misapplied. Thus, it is in the event of the disobedience of the order of the court, that imprisonment for a term which may extend to two years has been prescribed. The provision makes the defaulter, whether an employee or a past employee or the legal heir of the employee, who disobeys the order of the court to hand back the property to the company within the prescribed time liable for punishment.” Having so held, the Court did not construe the provision strictly, which it would have been bound to do had it been a purely criminal one, but instead gave it a broad, liberal, and purposeful construction as follows: “18. Section 630 of the Act provides speedy relief to the company where its property is wrongfully obtained or wrongfully withheld by an “employee or an officer” or a “past employee or an officer” or “legal heirs and representatives” deriving their colour and content from such an employee or officer insofar as the occupation and possession of the property belonging to the company is concerned. The failure to deliver property back to the employer on the termination, resignation, superannuation or death of an employee would render the ‘holding’ of that property wrongful and actionable under Section 630 of the Act. To hold that the “legal heirs” would not be covered by the provisions of Section 630 of the Act would be unrealistic and illogical. It would defeat the ‘beneficent’ provision and ignore the factual realities that the legal heirs or family members who are continuing in possession of the allotted property had obtained the right of occupancy with the employee concerned in the property of the employer only by virtue of their relationship with the employee/officer and had not obtained or acquired the right to possession of the property in any other capacity, status or right. The legislature, which is supposed to know and appreciate the needs of the people, by enacting Section 630 of the Act manifested that it was conscious of the position that today in the corporate sector — private or public enterprise — the employees/officers are often provided residential accommodation by the employer for the “use and occupation” of the employee concerned during the course of his employment. More often than not, it is a part of the service conditions of the employee that the employer shall provide him residential accommodation during the course of his employment. If an employee or a past employee or anyone claiming the right of occupancy under them, were to continue to ‘hold’ the property belonging to the company after the right to be in occupation has ceased for one reason or the other, it would not only create difficulties for the company, which shall not be able to allot that property to its other employees, but would also cause hardship for the employee awaiting allotment and defeat the intention of the legislature. The courts are therefore obliged to place a broader, liberal and purposeful construction on the provisions of Section 630 of the Act in furtherance of the object and purpose of the legislation and construe it in a wider sense to effectuate the intendment of the provision. The “heirs and legal representatives” of the deceased employee have no independent capacity or status to continue in occupation and possession of the property, which stood allotted to the employee or the officer concerned or resist the return of the property to the employer in the absence of any express agreement to the contrary entered with them by the employer. The court, when approached by the employer for taking action under Section 630 of the Act, can examine the basis on which the petition/complaint is filed and if it is found that the company's right to retrieve its property is quite explicit and the stand of the employee, or anyone claiming through him, to continue in possession is baseless, it shall proceed to act under Section 630 of the Act and pass appropriate orders. Only an independent valid right, not only to occupation but also to possession of the property belonging to the company, unconnected with the employment of the deceased employee can defeat an action under Section 630 of the Act if it can be established that the deceased employee concerned had not wrongfully nor knowingly applied it for purposes other than those authorised by the employer. In interpreting a beneficent provision, the court must be forever alive to the principle that it is the duty of the court to defend the law from clever evasion and defeat and prevent perpetration of a legal fraud.” 55. Likewise, contempt of court proceedings have been described as “quasi-criminal” in a long series of judgments. We may point out that the predecessor to the Contempt of Courts Act, 1971, namely, the Contempt of Courts Act, 1952 did not contain any definition of the expression “contempt of court”. A Committee was appointed by the Government of India, referred to as the Sanyal Committee, which then went into whether this expression needs to be defined. The Sanyal Committee Report, 1963 then broadly divided contempts into two kinds – civil and criminal “2.1. … Broadly speaking, the classification follows the method of dividing contempt into criminal and civil contempts. The Shawcross Committee adopted the same classification on the grounds of convenience. Broadly speaking, civil contempts are contempts which involve a private injury occasioned by disobedience to the judgment, order or other process of the court. On the other hand, criminal contempts are right from their inception in the nature of offences. In Legal Remembrancer v. Matilal Ghose, I.L.R. 41 Cal. 173 at 252, Mukerji J. observed thus: “A criminal contempt is conduct that is directed against the dignity and authority of the court. A civil contempt is failure to do something ordered to be done by a court in a civil action for the benefit of the opposing party therein. Consequently, in the case of a civil contempt, the proceeding for its punishment is at the instance of the party interested and is civil in its character; in the case of a criminal contempt, the proceeding is for punishment of an act committed against the majesty of the law, and, as the primary purpose of the punishment is the vindication of the public authority, the proceedings conform as nearly as possible to proceedings in criminal cases. It is conceivable that the dividing line between the acts constituting criminal and those constituting civil contempts may become indistinct in those cases where the two gradually merge into each other.” 2.2. Notwithstanding the existence of a broad distinction between civil and criminal contempts, a large number of cases have shown that the dividing line between the two is almost imperceptible. For instance, in Dulal Chandra v. Sukumar, A.I.R. 1958 Cal. 474 at 476, 477, the following observations “The line between civil and criminal contempt can be broad as well as thin. Where the contempt consists in mere failure to comply with or carry out an order of a court made for the benefit of a private party, it is plainly civil contempt and it has been said that when the party, in whose interest the order was made, moves the court for action to be taken in contempt against the contemner with a view to an enforcement of his right, the proceeding is only a form of execution. In such a case, there is no criminality in the disobedience, and the contempt, such as it is, is not criminal. If, however, the contemner adds defiance of the court to disobedience of the order and conducts himself in interference with the course of justice, the character, partaking as between him and his opponent of the nature of a civil contempt and as between him and the court or the State, of the nature of a criminal contempt. In cases of this type, no clear distinction between civil and criminal committed cannot be broadly classed as either civil or criminal contempt … To put the matter in other words, a contempt is merely a civil wrong where there has been disobedience of an order made for the benefit of a particular party, but where it has consisted in setting the authority of the courts at nought and has had a tendency to invade the efficacy of the machinery maintained by the State for the administration of justice, it is a public wrong and consequently criminal in nature.” 2.3. In other words, the question whether a contempt is civil or criminal is not to be judged with reference to the penalty which may be inflicted but with reference to the cause for which the penalty has been inflicted. …” 56. The Statement of Objects and Reasons for the Contempt of Courts Act, 1971 expressly states that the said Act was in pursuance of the “Statement of Objects and Reasons.—It is generally felt that the existing law relating to contempt of courts is somewhat uncertain, undefined and unsatisfactory. The jurisdiction to punish for contempt touches upon two important fundamental rights of the citizen, namely, the right to personal liberty and the right to freedom of expression. It was, therefore, considered advisable to have the entire law on the subject scrutinised by a special committee. In pursuance of this, a Committee was set up in 1961 under the Chairmanship of the late Shri H. N. Sanyal the then Additional Solicitor General. The Committee made a comprehensive examination of the law and problems relating to contempt of Court in the light of the position obtaining in our own country and various foreign countries. The recommendations which the Committee made took note of the importance given to freedom of speech in the Constitution and of the need for safeguarding the status and dignity of Courts and interests of administration of justice. The recommendations of the Committee have been generally accepted by Government after considering the views expressed on those recommendations by the State Governments, Union Territory Administrations the Supreme Court, the High Courts and the Judicial Commissioners. The Bill seeks to give effect to the accepted recommendations of the Sanyal Committee.” 57. The Contempt of Courts Act, 1971 defines “civil contempt” and “2. Definitions.—In this Act, unless the context otherwise (b) “civil contempt” means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court; (c) “criminal contempt” means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of (i) scandalises or tends to scandalise, or lowers or tends to lower the authority of any court; or (ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or (iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of xxx xxx xxx” 58. Whether the contempt committed is civil or criminal, the High Court is empowered to try such “offences” whether the person allegedly guilty is within or outside its territorial jurisdiction. Thus, Section 11 of the “11. Power of High Court to try offences committed or offenders found outside jurisdiction.—A High Court shall have jurisdiction to inquire into or try a contempt of itself or of any court subordinate to it, whether the contempt is alleged to have been committed within or outside the local limits of its jurisdiction, and whether the person alleged to be guilty of contempt is within or outside such limits.” Punishments awarded for contempt of court, whether civil or criminal, are then dealt with by Section 12 of the Act, which states: “12. Punishment for contempt of court.—(1) Save as otherwise expressly provided in this Act or in any other law, a contempt of court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both: Provided that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the court. Explanation.—An apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bona fide. (2) Notwithstanding anything contained in any law for the time being in force, no court shall impose a sentence in excess of that specified in sub-section(1) for any contempt either in respect of itself or of a court subordinate to it. (3) Notwithstanding anything contained in this section, where a person is found guilty of a civil contempt, the court, if it considers that a fine will not meet the ends of justice and that a sentence of imprisonment is necessary shall, instead of sentencing him to simple imprisonment, direct that he be detained in a civil prison for such period not exceeding six months as it may think fit. (4) Where the person found guilty of contempt of court in respect of any undertaking given to a court is a company, every person who, at the time the contempt was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the contempt and the punishment may be enforced with the leave of the court, by the detention in civil prison of each such person: Provided that nothing contained in this sub-section shall render any such person liable to such punishment if he proves that the contempt was committed without his knowledge or that he exercised all due diligence to prevent its commission. (5) Notwithstanding anything contained in sub-section (4), where the contempt of court referred to therein has been committed by a company and it is proved that the contempt has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of the contempt and the punishment may be enforced, with the leave of the court, by the detention in civil prison of such director, manager, secretary or other officer. Explanation.—For the purpose of sub-sections (4) and (5),— (a) “company” means any body corporate and includes a firm or other association of individuals; (b) “director”, in relation to a firm, means a partner in the firm.” 59. In criminal contempt cases, “cognizance” in contempts other than those referred to in Section 14 of the Act is taken by the Supreme Court or the High Court in the manner provided by Section 15. Section 17 then lays down the procedure that is to be followed after cognizance is taken. Finally, by Section 23, the Supreme Court and the High Courts are given the power to make rules, not inconsistent with the provisions of the Act, providing for any matter relating to its procedure. 60. This Court, in Niaz Mohd. v. State of Haryana, (1994) 6 SCC 332, spoke of the hybrid nature of a civil contempt as follows: “9. Section 2(b) of the Contempt of Courts Act, 1971 (hereinafter referred to as ‘the Act’) defines “civil contempt” to mean “wilful disobedience to any judgment, decree, direction, order, writ or other process of a court …”. Where the contempt consists in failure to comply with or carry out an order of a court made in favour of a party, it is a civil contempt. The person or persons in whose favour such order or direction has been made can move the court for initiating proceeding for contempt against the alleged contemner, with a view to enforce the right flowing from the order or direction in 10. … In Halsbury’s Laws of England, 4th Edn., Vol. 9, para “Although contempt may be committed in the absence of wilful disobedience on the part of the contemner, committal or sequestration will not be order unless the contempt involves a degree of fault or misconduct.” “In circumstances involving misconduct, civil contempt bears a twofold character, implying as between the parties to the proceedings merely a right to exercise and a liability to submit to a form of civil execution, but as between the party in default and the State, a penal or disciplinary jurisdiction to be exercised by the court in the public interest.” In T.N. Godavarman Thirumulpad (102) v. Ashok Khot, (2006) 5 SCC “33. Proceedings for contempt are essentially personal and punitive. This does not mean that it is not open to the court, as a matter of law to make a finding of contempt against any official of the Government say, Home Secretary or a Minister. 34. While contempt proceedings usually have these characteristics and contempt proceedings against a government department or a Minister in an official capacity would not be either personal or punitive (it would clearly not be appropriate to fine or sequester the assets of the Crown or a government department or an officer of the Crown acting in his official capacity), this does not mean that a finding of contempt against a government department or Minister would be pointless. The very fact of making such a finding would vindicate the requirements of justice. In addition, an order for costs could be made to underline the significance of a contempt. A purpose of the court’s powers to make findings of contempt is to ensure that the orders of the court are obeyed. This jurisdiction is required to be coextensive with the court's jurisdiction to make orders which need the protection which the jurisdiction to make findings of contempt provides. In civil proceedings the court can now make orders (other than injunctions or for specific performance) against authorised government departments or the Attorney General. On applications for judicial review orders can be made against Ministers. In consequence such orders must be taken not to offend the theory that the Crown can supposedly do no wrong. Equally, if such orders are made and not obeyed, the body against whom the orders were made can be found guilty of contempt without offending that theory, which could be the only justifiable impediment against making a finding of contempt. (See M. v. Home Office [(1993) 3 All ER 537 : 61. The description of contempt proceedings being “quasi-criminal” in nature has its origin in the celebrated Privy Council judgment of Andre Paul Terence Ambard v. Attorney-General of Trinidad and Tobago, AIR 1936 PC 141 in which Lord Atkin referred to contempt of court proceedings as quasi-criminal (see page 143). 62. In Sahdeo v. State of U.P., (2010) 3 SCC 705, this Court again referred to the “quasi-criminal” nature of contempt proceedings as follows: “15. The proceedings of contempt are quasi-criminal in nature. In a case where the order passed by the court is not complied with by mistake, inadvertence or by misunderstanding of the meaning and purport of the order, unless it is intentional, no charge of contempt can be brought home. There may possibly be a case where disobedience is accidental. If that is so, there would be no contempt. [Vide B.K. Kar v. Chief Justice and Justices of the Orissa High Court [AIR 1961 SC 1367 : (1961) 18. In Sukhdev Singh v. Teja Singh [AIR 1954 SC 186 : 1954 Cri LJ 460] this Court placing reliance upon the judgment of the Privy Council in Andre Paul Terence Ambard v. Attorney General of Trinidad and Tabago [AIR 1936 PC 141] , held that the proceedings under the Contempt of Courts Act are quasi- criminal in nature and orders passed in those proceedings are to be treated as orders passed in criminal cases. 19. In S. Abdul Karim v. M.K. Prakash [(1976) 1 SCC 975 : Ram v. Urvashi Gulati [(2001) 7 SCC 530 : 2001 SCC (L&S) 1196] , Anil Ratan Sarkar v. Hirak Ghosh [(2002) 4 SCC 21 : AIR 2002 SC 1405] , Daroga Singh v. B.K. Pandey [(2004) 5 SCC 26 : 2004 SCC (Cri) 1521] and All India Anna Dravida Munnetra Kazhagam v. L.K. Tripathi [(2009) 5 SCC 417 : (2009) 2 SCC (Cri) 673 : AIR 2009 SC 1314] , this Court held that burden and standard of proof in contempt proceedings, being quasi-criminal in nature, is the standard of proof required in criminal proceedings, for the reason that contempt proceedings are quasi-criminal in nature. 20. Similarly, in Mrityunjoy Das v. Sayed Hasibur Rahaman 1293] this Court placing reliance upon a large number of its earlier judgments, including V.G. Nigam v. Kedar Nath Gupta 400 : AIR 1992 SC 2153] and Murray & Co. v. Ashok Kumar SC 833], held that jurisdiction of contempt has been conferred on the Court to punish an offender for his contemptuous conduct or obstruction to the majesty of law, but in the case of quasi-criminal in nature, charges have to be proved beyond reasonable doubt and the alleged contemnor becomes entitled to the benefit of doubt. It would be very hazardous to impose sentence in contempt proceedings on some probabilities. 27. In view of the above, the law can be summarised that the High Court has a power to initiate the contempt proceedings suo motu for ensuring the compliance with the orders passed by the Court. However, contempt proceedings being quasi- criminal in nature, the same standard of proof is required in the same manner as in other criminal cases. The alleged contemnor is entitled to the protection of all safeguards/rights which are provided in the criminal jurisprudence, including the benefit of doubt. There must be a clear-cut case of obstruction of administration of justice by a party intentionally to bring the matter within the ambit of the said provision. The alleged contemnor is to be informed as to what is the charge, he has to meet. Thus, specific charge has to be framed in precision. The alleged contemnor may ask the Court to permit him to cross-examine the witnesses i.e. the deponents of affidavits, who have deposed against him. In spite of the fact that contempt proceedings are quasi-criminal in nature, provisions of the Code of Criminal Procedure, 1973 (hereinafter called “CrPC”) and the Evidence Act are not attracted for the reason that proceedings have to be concluded expeditiously. Thus, the trial has to be concluded as early as possible. The case should not rest only on surmises and conjectures. There must be clear and reliable evidence to substantiate the allegations against the alleged contemnor. The proceedings must be concluded giving strict adherence to the statutory rules framed for the purpose.” In Maninderjit Singh Bitta v. Union of India, (2012) 1 SCC 273, this Court again referred to “civil” and “criminal” contempt as follows: “17. Section 12 of the 1971 Act deals with the contempt of court and its punishment while Section 15 deals with cognizance of criminal contempt. Civil contempt would be wilful breach of an undertaking given to the court or wilful disobedience of any judgment or order of the court, while criminal contempt would deal with the cases where by words, spoken or written, signs or any matter or doing of any act which scandalises, prejudices or interferes, obstructs or even tends to obstruct the due course of any judicial proceedings, any court and the administration of justice in any other manner. Under the English law, the distinction between criminal and civil contempt is stated to be very little and that too of academic significance. However, under both the English and Indian law these are proceedings sui generis. 19. Under the Indian law the conduct of the parties, the act of disobedience and the attendant circumstances are relevant to consider whether a case would fall under civil contempt or criminal contempt. For example, disobedience of an order of a court simpliciter would be civil contempt but when it is coupled with conduct of the parties which is contemptuous, prejudicial and is in flagrant violation of the law of the land, it may be treated as a criminal contempt. Even under the English law, the courts have the power to enforce its judgment and orders against the recalcitrant parties.” That contempt proceedings are “quasi-criminal” is also stated in Kanwar Singh Saini v. High Court of Delhi, (2012) 4 SCC 307 (at paragraph 38) and in T.C. Gupta v. Bimal Kumar Dutta, (2014) 14 SCC 446 (at paragraph 10). 63. What is clear from the aforesaid is that though there may not be any watertight distinction between civil and criminal contempt, yet, an analysis of the aforesaid authorities would make it clear that civil contempt is essentially an action which is moved by the party in whose interest an order was made with a view to enforce its personal right, where contumacious disregard for such order results in punishment of the offender in public interest, whereas a criminal contempt is, in essence, a proceeding which relates to the public interest in seeing that the administration of justice remains unpolluted. What is of importance is to note that even in cases of civil contempt, fine or imprisonment or both may be imposed. The mere fact that punishments that are awardable relate to Section 53 of the Indian Penal Code would not, therefore, render a civil contempt proceeding a criminal proceeding. There is a great deal of wisdom in the finding of the Sanyal Committee Report that the question whether a contempt is civil or criminal is not to be judged with reference to the penalty which may be inflicted but with reference to the cause for which the penalty has been inflicted. 64. Clearly, therefore, given the hybrid nature of a civil contempt proceeding, described as “quasi-criminal” by several judgments of this Court, there is nothing wrong with the same appellation “quasi-criminal” being applied to a Section 138 proceeding for the reasons given by us on an analysis of Chapter XVII of the Negotiable Instruments Act. We, therefore, reject the learned Additional Solicitor General’s strenuous argument that the appellation “quasi-criminal” is a misnomer when it comes to Section 138 proceedings and that therefore some of the cases cited in this judgment should be given a fresh look. 65. Shri Mehta then argued that Section 33(5) of the IBC may also be seen, as it is a provision analogous to Section 14(1)(a). Section 33(5) (5) Subject to Section 52, when a liquidation order has been passed, no suit or other legal proceeding shall be instituted by Provided that a suit or other legal proceeding may be instituted by the liquidator, on behalf of the corporate debtor, with the prior approval of the Adjudicating Authority. xxx xxx xxx” It will be noted that under this Section, the expression “no suit or other legal proceeding” occurs both in the enacting part as well as the proviso. Going by the proviso first, given the object that the liquidator now has to act on behalf of the company after a winding-up order is passed, which includes filing of suits and other legal proceedings on behalf of the company, there is no earthly reason as to why a Section 138/141 proceeding would be outside the ken of the proviso. On the contrary, as the liquidator alone now represents the company, it is obvious that whatever the company could do pre-liquidation is now vested in the liquidator, and in order to realise monies that are due to the company, there is no reason why the liquidator cannot institute a Section 138/141 proceeding against a defaulting debtor of the company. Obviously, this language needs to be construed in the widest possible form as there cannot be any residuary category of “other legal proceedings” which can be instituted against some person other than the liquidator or by the liquidator who now alone represents the company. Given the object of this provision also, what has been said earlier with regard to the non- application of the doctrines of ejusdem generis and noscitur a sociis would apply with all force to this provision as well. 66. In fact, several other provisions of the IBC may also be looked at in this context. Thus, when it comes to the duties of a resolution professional who takes over the management of the company during the corporate insolvency resolution process, Section 25(2)(b) states as follows: “25. Duties of resolution professional.— (2) For the purposes of sub-section (1), the resolution professional shall undertake the following actions, namely— (b) represent and act on behalf of the corporate debtor with third parties, exercise rights for the benefit of the corporate debtor in judicial, quasi- xxx xxx xxx” Here again, given the fact that it is the resolution professional alone who is now to preserve and protect the assets of the corporate debtor in this interregnum, the resolution professional therefore is to represent and act on behalf of the corporate debtor in all judicial, quasi-judicial, or arbitration proceedings, which would include criminal proceedings. Here again, the word “judicial” cannot be construed noscitur a sociis so as to cut down its plain meaning, as otherwise, quasi-judicial or arbitration proceedings, not being criminal proceedings, the word “judicial” would then take colour from them. This would stultify the object sought to be achieved by Section 25 and result in an absurdity, namely, that during this interregnum, nobody can represent or act on behalf of the corporate debtor in criminal proceedings. Likewise, if a corporate debtor cannot be taken over by a new management and has to be condemned to liquidation, the powers and duties of the liquidator, while representing the corporate debtor, are enumerated in Section 35. Section 35(1)(k), in particular, states as “35. Powers and duties of liquidator.—(1) Subject to the directions of the Adjudicating Authority, the liquidator shall have the following powers and duties, namely:— (k) to institute or defend any suit, prosecution or other legal proceedings, civil or criminal, in the name of on behalf of the corporate debtor; xxx xxx xxx” This provision specifically speaks of “prosecution” and “criminal proceedings”. Contrasted with Section 25(2)(b) and Section 33(5), an argument could be made that the absence of the expressions “prosecution” and “criminal proceedings” in Section 25(2)(b) and Section 33(5) would show that they were designedly eschewed by the legislature. We have seen how inelegant drafting cannot lead to absurd results or results which stultify the object of a provision, given its otherwise wide language. Thus, nothing can be gained by juxtaposing various provisions against each other and arriving at conclusions that are plainly untenable in law. 67. Shri Mehta then relied strongly upon judgments under Section 22(1) of the SICA and under Section 446(2) of the Companies Act, 1956. He relied upon BSI Ltd. v. Gift Holdings (P) Ltd., (2000) 2 SCC 737, which judgment held that the expression “suit” in Section 22(1) of the SICA would not include a Section 138 proceeding. The Court was directly concerned with only this expression and, therefore, held: “19. The said contention is also devoid of merits. The word “suit” envisaged in Section 22(1) cannot be stretched to criminal prosecutions. The suit mentioned therein is restricted to “recovery of money or for enforcement of any security against the industrial company or of any guarantee in respect of any loans or advance granted to the industrial company”. As the suit is clearly delineated in the provision itself, the context would not admit of any other stretching process. 20. A criminal prosecution is neither for recovery of money nor for enforcement of any security etc. Section 138 of the NI Act is a penal provision the commission of which offence entails a conviction and sentence on proof of the guilt in duly conducted criminal proceedings. Once the offence under Section 138 is completed the prosecution proceedings can be initiated not for recovery of the amount covered by the cheque but for bringing the offender to penal liability. What was considered in Maharashtra Tubes Ltd. [(1993) 2 SCC 144] is whether the remedy provided in Section 29 or Section 31 of the State Finance Corporation Act, 1951 could be pursued notwithstanding the ban contained in Section 22 of SICA. Hence the legal principle adumbrated in the said decision is of no avail to the appellants. 21. In the above context it is pertinent to point out that Section 138 of the NI Act was introduced in 1988 when SICA was already in vogue. Even when the amplitude of the word “company” mentioned in Section 141 of the NI Act was widened through the explanation added to the Section, Parliament did not think it necessary to exclude companies falling under Section 22 of SICA from the operation thereof. If Parliament intended to exempt sick companies from prosecution proceedings, necessary provision would have been included in Section 141 of the NI Act. More significantly, when Section 22(1) of SICA was amended in 1994 by “and no suit for the recovery of money or for the enforcement of any security against the industrial company or of any guarantee in respect of any loans or advance granted to the industrial company” Parliament did not specifically include prosecution proceedings within the ambit of the said ban.” This case is wholly distinguishable as the word “proceedings” did not come up for consideration at all. Further, given the object of Section 22(1) of the SICA, which was amended in 1994 by inserting the words that were interpreted by this Court, parliament restricted proceedings only to suits for recovery of money etc., thereby expressly not including prosecution proceedings, as was held by this Court. The observations contained in paragraph 20, that Section 138 of the Negotiable Instruments Act is a penal provision in a criminal proceeding cannot now be said to be good law given the march of events, in particular, the amendments of 2002 and 2018 to the Negotiable Instruments Act, as pointed out hereinabove, and the later judgments of this Court interpreting Chapter XVII of the 68. The next decision relied upon by Shri Mehta is the judgment in Kusum Ingots & Alloys Ltd. v. Pennar Peterson Securities Ltd., (2000) 2 SCC 745, which merely followed this judgment (see paragraphs 69. Likewise, all the judgments cited under Section 446(2) of the Companies Act, 1956 are distinguishable. Section 446(2) states as (2) The Tribunal shall, notwithstanding anything contained in any other law for the time being in force, have jurisdiction to (a) any suit or proceeding by or against the company; (b) any claim made by or against the company (including claims by or against any of its branches (c) any application made under Section 391 by or in (d) any question of priorities or any other question whatsoever, whether of law or fact, which may relate to or arise in course of the winding up of the whether such suit or proceeding has been instituted or is instituted, or such claim or question has arisen or arises or such application has been made or is made before or after the order for the winding up of the company, or before or after the commencement of the Companies (Amendment) Act, 1960. xxx xxx xxx” 70. In S.V. Kandeakar v. V.M. Deshpande, (1972) 1 SCC 438 [“S.V. Kandeakar”], this Court explained why income tax proceedings would be outside the purview of Section 446(2) as follows: “17. Turning now to the Income Tax Act it is noteworthy that Section 148 occurs in Chapter XIV which beginning with Section 139 prescribes the procedure for assessment and Section 147 provides for assessment or reassessment of income escaping assessment. This Section empowers the Income Tax Officer concerned subject to the provisions of Sections 148 to 153 to assess or re-assess escaped income. While holding these assessment proceedings the Income Tax Officer does not, in our view, perform the functions of a Court as contemplated by Section 446(2) of the Act. Looking at the legislative history and the scheme of the Indian Companies Act, particularly the language of Section 446, read as a whole, it appears to us that the expression “other legal proceeding” in sub-section (1) and the expression “legal proceeding” in sub- section (2) convey the same sense and the proceedings in both the sub-sections must be such as can appropriately be dealt with by the winding up court. The Income Tax Act is, in our opinion, a complete code and it is particularly so with respect to the assessment and re-assessment of income tax with which alone we are concerned in the present case. The fact that after the amount of tax payable by an assessee has been determined or quantified its realisation from a company in liquidation is governed by the Act because the income tax payable also being a debt has to rank pari passu with other debts due from the company does not mean that the assessment proceedings for computing the amount of tax must be held to be such other legal proceedings as can only be started or continued with the leave of the liquidation court under Section 446 of the Act. The liquidation court, in our opinion, cannot perform the functions of Income Tax Officers while assessing the amount of tax payable by the assessees even if the assessee be the company which is being wound up by the Court. The orders made by the Income Tax Officer in the course of assessment or re-assessment proceedings are subject to appeal to the higher hierarchy under the Income Tax Act. There are also provisions for reference to the High Court and for appeals from the decisions of the High Court to the Supreme Court and then there are provisions for revision by the Commissioner of Income Tax. It would lead to anomalous consequences if the winding up court were to be held empowered to transfer the assessment proceedings to itself and assess the company to income tax. The argument on behalf of the appellant by Shri Desai is that the winding up court is empowered in its discretion to decline to transfer the assessment proceedings in a given case but the power on the plain language of Section 446 of the Act must be held to vest in that court to be exercised only if considered expedient. We are not impressed by this argument. The language of Section 446 must be so construed as to eliminate such startling consequences as investing the winding up court with the powers of an Income Tax Officer conferred on him by the Income Tax Act, because in our view the legislature could not have intended such a result. 18. The argument that the proceedings for assessment or re- assessment of a company which is being wound up can only be started or continued with the leave of the liquidation court is also, on the scheme both of the Act and of the Income Tax Act, unacceptable. We have not been shown any principle on which the liquidation court should be vested with the power to stop assessment proceedings for determining the amount of tax payable by the company which is being wound up. The liquidation court would have full power to scrutinise the claim of the revenue after income tax has been determined and its payment demanded from the liquidator. It would be open to the liquidation court then to decide how far under the law the amount of income tax determined by the Department should be accepted as a lawful liability on the funds of the company in liquidation. At that stage the winding up court can fully safeguard the interests of the company and its creditors under the Act. Incidentally, it may be pointed out that at the Bar no English decision was brought to our notice under which the assessment proceedings were held to be controlled by the winding up court. On the view that we have taken, the decisions in the case of Seth Spinning Mills Ltd., (In Liquidation) and the Mysore Spun Silk Mills Ltd., (In Liquidation) do not seem to lay down the correct rule of law that the Income Tax Officers must obtain leave of the winding up court for commencing or continuing assessment or re- assessment proceedings.” From this judgment, what becomes clear is the fact that the winding-up court under Section 446(2) is to take up all matters which the company court itself can conveniently dispose of rather than exposing a company which is under winding up to expensive litigation in other courts. This being the object of Section 446(2), the expression “proceeding” was given a limited meaning as it is obvious that a company court cannot dispose of an assessment proceeding in income tax or a criminal proceeding. This is further made clear in Sudarshan Chits (I) Ltd. v. O. Sukumaran Pillai, (1984) 4 SCC 657 (at paragraph 8) and in Central Bank of India v. Elmot Engineering Co., (1994) 4 SCC 159 (at paragraph 14). 71. Shri Mehta also relied upon D.K. Kapur v. Reserve Bank of India, 2001 SCC OnLine Del 67 : (2001) 58 DRJ 424 (DB). This judgment referred to Section 446(1) and (2) of the Companies Act, 1956 and contrasted the language contained therein with the language contained in Section 457 of the same Act, which made it clear that the liquidator in a winding up by the court shall have power, with the sanction of the court, to institute or defend any suit, prosecution, or other legal proceeding, civil or criminal, in the name and on behalf of the company. Thus, the Delhi High “12. Mere look at the aforesaid provisions would show that on the one hand, in Section 457 of the Act, the legislature has empowered the liquidator to institute or defend any ‘suit’ or ‘prosecution’ or ‘other legal proceedings’ civil or criminal in the name and on behalf of company after permission from the court; and by Section 454 (5A) of the Act the legislature has empowered the Company Court itself to take cognizance of the offence under sub-section (5) of Section 454 of the Act and to try such offenders as per the procedure provided for trial of summons cases under the Code of Criminal Procedure, 1974; but on the other hand in Sections 442 and 446 of the Act the legislature has used only the expression “suit or other legal proceedings”. The words “prosecution” or “criminal case” are conspicuously missing in these Sections. It appears quite logical as purpose and object of Sections 442 and 446 of the Act is to enable the Company Court to oversee the affairs of the company and to avoid wasteful expenditure. Therefore the intention of the legislature under these Sections does not appear to provide jurisdiction to the Company Court over criminal proceedings either against the company or against its directors. Wherever legislature thought it necessary to provide such jurisdiction it has used the appropriate expressions.” It then set out the judgment in S.V. Kandeakar (supra) in paragraph 14, “15. The reasoning adopted by the Supreme Court in the above case would be fully applicable to the facts at hand. Complaints under the penal provisions of other statutes against the company or its directors, (except those provided under the Companies Act) cannot be appropriately dealt with by the Company Court. Orders passed by the criminal court are subject to the appeal and revision etc. under the Code of Criminal Procedure. If the winding up court is held to be empowered to transfer these criminal proceedings to itself it would lead to anomalous consequences.” It was in this context that the Court therefore ultimately held: “20. … The expression “other legal proceedings” must be read in ejusdem generis with the expression “suit” in Section 446 of the Act. If so read it can only refer to any civil proceedings and criminal proceedings have to be excluded. Therefore, no permission was required to be taken from Company Court for filing criminal complaint either against the company or against its directors.” 72. Shri Mehta’s reliance on Indorama Synthetics (I) Ltd. v. State of Maharashtra, 2016 SCC OnLine Bom 2611 : (2016) 4 Mah LJ 249, is also misplaced, for the reason that the finding of the Bombay High Court that Section 138 proceedings were not included in Section 446 of the Companies Act only follows the reasoning of the earlier judgments on the scope of Section 446 of the Companies Act. Significantly, given the object of Section 446 of the Companies Act, it was held that a Section 138 proceeding is not a proceeding which has a direct bearing on the collection or distribution of assets in the winding up of a company. The ultimate conclusion of the court is contained in paragraph 30, which reads “30. Thus, there is a long line of decisions making the position clear that the expression ‘suit or legal proceedings’, used in Section 446(1) of the Companies Act, can mean only those proceedings which can have a bearing on the assets of the companies in winding-up or have some relation with the issue in winding-up. It does not mean each and every civil proceedings, which has no bearing on the winding-up proceedings, or criminal offences where the Director of the Company is presently liable for penal action.” 73. As the language, object, and context of Section 22(1) of the SICA and Section 446(2) of the Companies Act are far removed from Section 14(1) of the IBC, none of the aforesaid judgments have any application to Section 14 of the IBC and are therefore distinguishable. 74. Shri Mehta then relied upon Power Grid Corporation of India Ltd. v. Jyoti Structures Ltd., 2017 SCC OnLine Del 12189 : (2018) 246 DLT 485, in which the Delhi High Court held that a Section 34 application to set aside an award under the Arbitration and Conciliation Act, 1996 would not be covered by Section 14 of the IBC. This judgment does not state the law correctly as it is clear that a Section 34 proceeding is certainly a proceeding against the corporate debtor which may result in an arbitral award against the corporate debtor being upheld, as a result of which, monies would then be payable by the corporate debtor. A Section 34 proceeding is a proceeding against the corporate debtor in a court of law pertaining to a challenge to an arbitral award and would be covered just as an appellate proceeding in a decree from a suit would be covered. This judgment does not, therefore, state the law correctly. 75. Shri Mehta then relied upon Inderjit C. Parekh v. V.K. Bhatt, (1974) 4 SCC 313. This judgment dealt with a moratorium provision contained in the Bombay Relief Undertakings (Special Provisions) Act, 1958. In the context of a prosecution under paragraph 76(a) of the Employees’ Provident Fund Scheme, 1952 this Court held: “6. The object of Section 4(1)(a)(iv) is to declare, so to say, a moratorium on actions against the undertaking during the currency of the notification declaring it to be a relief undertaking. By sub-clause (iv), any remedy for the enforcement of an obligation or liability against the relief undertaking is suspended and proceedings which are already commenced are to be stayed during the operation of the notification. Under Section 4(b), on the notification ceasing to have force, such obligations and liabilities revive and become enforceable and the proceedings which are stayed can be continued. These provisions are aimed at resurrecting and rehabilitating industrial undertakings brought by inefficiency or mismanagement to the brink of dissolution, posing thereby the grave threat of unemployment of industrial workers. “Relief undertaking” means under Section 2(2) an industrial undertaking in respect of which a declaration under Section 3 is in force. By Section 3, power is conferred on the State Government to declare an industrial undertaking as a relief undertaking, “as a measure of preventing unemployment or of unemployment relief”. Relief undertakings, so long as they continue as such, are given immunity from legal actions so as to render their working smooth and effective. Such undertakings can be run more effectively as a measure of unemployment relief, if the conduct of their affairs is unhampered by legal proceedings or the threat of such proceedings. That is the genesis and justification of Section 4(1)(a)(iv) of the Act. 7. Thus, neither the language of the statute nor its object would justify the extension of the immunity so as to cover the individual obligations and liabilities of the directors and other officers of the undertaking. If they have incurred such obligations or liabilities, as distinct from the obligations or liabilities of the undertaking, they are liable to be proceeded against for their personal acts of commission and omission. The remedy in that behalf cannot be suspended nor can a proceeding already commenced against them in their individual capacity be stayed. Indeed, it would be strange if any such thing was within the contemplation of law. Normally, the occasion for declaring an industry as a relief undertaking would arise out of causes connected with defaults on the part of its directors and other officers. To declare a moratorium on legal actions against persons whose activities have necessitated the issuance of a notification in the interest of unemployment relief is to give to such persons the benefit of their own wrong. Section 4(1)(a)(iv) therefore advisedly limits the power of the State Government to direct suspension of remedies and stay of proceedings involving the obligations and liabilities in relation to a relief undertaking and which were incurred before the undertaking was declared a relief undertaking. 8. Para 38(1) of the Employees’ Provident Funds Scheme, 1952 imposes an obligation on “The employer” to pay the provident fund contribution to the Fund within 15 days of the close of every month. The Scheme does not define “Employee” but para 2(m) says that words and expressions which are not defined by the Scheme shall have the meaning assigned to them in the Employees' Provident Funds Act. Section 2(e)(ii) of that Act defines an “Employer”, to the extent material, as the person who, or the authority which, has the ultimate control over the affairs of an establishment and where the said affairs are entrusted to a manager, managing director or managing agent, such manager, managing director or managing agent. Thus the responsibility to pay the contributions to the Fund was of the appellants and if they have defaulted in paying the amount, they are liable to be prosecuted under para 76(a) of the Scheme which says that if any person fails to pay any contribution which he is liable to pay under the Scheme, he shall be punishable with six months' imprisonment or with fine which may extend to one thousand rupees or with both. Such a personal liability does not fall within the scope of Section 4(1)(a)(iv) of the Act.” Significantly, this Court did not hold that the moratorium provision would not extend to criminal liability. On the contrary, on the assumption that it would so extend, a distinction was made between personal liability of the Directors of the undertaking and the undertaking itself, stating that as the “employer” under the Employees’ Provident Fund Scheme would only refer to those individuals managing the relief undertaking and not the relief undertaking itself, the personal liability of such persons would not fall within the scope of the moratorium provision. This judgment also, therefore, does not, in any manner, support Shri Mehta. 76. Lastly, Shri Mehta relied upon Deputy Director, Directorate of Enforcement Delhi v. Axis Bank, 2019 SCC OnLine Del 7854 : (2019) 259 DLT 500, and in particular, on paragraphs 127, 128, and 146 to 148 for the proposition that an offence under the Prevention of Money- Laundering Act could not be covered under Section 14(1)(a). The Delhi High Court’s reasoning is contained in paragraphs 139 and 141, which “139. From the above discussion, it is clear that the objects and reasons of enactment of the four legislations are distinct, each operating in different field. There is no overlap. While RDBA has been enacted to provide for speedier remedy for banks and financial institutions to recover their dues, SARFAESI Act (with added chapter on registration of secured creditor) aims at facilitating the secured creditors to expeditiously and effectively enforce their security interest. In each case, the amount to be recovered is “due” to the claimant i.e. the banks or the financial institutions or the secured creditor, as the case may be, the claim being against the debtor (or his guarantor). The Insolvency Code, in contrast, seeks to primarily protect the interest of creditors by entrusting them with the responsibility to seek resolution through a professional (RP), failure on his part leading eventually to the liquidation process.” “141. This court finds it difficult to accept the proposition that the jurisdiction conferred on the State by PMLA to confiscate the “proceeds of crime” concerns a property the value whereof is “debt” due or payable to the Government (Central or State) or local authority. The Government, when it exercises its power under PMLA to seek attachment leading to confiscation of proceeds of crime, does not stand as a creditor, the person alleged to be complicit in the offence of money-laundering similarly not acquiring the status of a debtor. The State is not claiming the prerogative to deprive such offender of ill-gotten assets so as to be perceived to be sharing the loot, not the least so as to levy tax thereupon such as to give it a colour of legitimacy or lawful earning, the idea being to take away what has been illegitimately secured by proscribed criminal activity.” This raison d’être is completely different from what has been advocated by Shri Mehta. The confiscation of the proceeds of crime is by the government acting statutorily and not as a creditor. This judgment, again, does not further his case. 77. As far as the Directors/persons in management or control of the corporate debtor are concerned, a Section 138/141 proceeding against them cannot be initiated or continued without the corporate debtor – see Aneeta Hada (supra). This is because Section 141 of the Negotiable Instruments Act speaks of persons in charge of, and responsible to the company for the conduct of the business of the company, as well as the company. The Court, therefore, in Aneeta Hada (supra) held as under: “51. We have already opined that the decision in Sheoratan Agarwal [(1984) 4 SCC 352 : 1984 SCC (Cri) 620] runs counter to the ratio laid down in C.V. Parekh [(1970) 3 SCC 491 : 1971 SCC (Cri) 97] which is by a larger Bench and hence, is a binding precedent. On the aforesaid ratiocination, the decision in Anil Hada [(2000) 1 SCC 1 : 2001 SCC (Cri) 174] has to be treated as not laying down the correct law as far as it states that the Director or any other officer can be prosecuted without impleadment of the company. Needless to emphasise, the matter would stand on a different footing where there is some legal impediment and the doctrine of lex non cogit ad impossibilia gets attracted.” “56. We have referred to the aforesaid passages only to highlight that there has to be strict observance of the provisions regard being had to the legislative intendment because it deals with penal provisions and a penalty is not to be imposed affecting the rights of persons, whether juristic entities or individuals, unless they are arrayed as accused. It is to be kept in mind that the power of punishment is vested in the legislature and that is absolute in Section 141 of the Act which clearly speaks of commission of offence by the company. The learned counsel for the respondents have vehemently urged that the use of the term “as well as” in the Section is of immense significance and, in its tentacle, it brings in the company as well as the Director and/or other officers who are responsible for the acts of the company and, therefore, a prosecution against the Directors or other officers is tenable even if the company is not arraigned as an accused. The words “as well as” have to be understood in the context.” “58. Applying the doctrine of strict construction, we are of the considered opinion that commission of offence by the company is an express condition precedent to attract the vicarious liability of others. Thus, the words “as well as the company” appearing in the Section make it absolutely unmistakably clear that when the company can be prosecuted, then only the persons mentioned in the other categories could be vicariously liable for the offence subject to the averments in the petition and proof thereof. One cannot be oblivious of the fact that the company is a juristic person and it has its own respectability. If a finding is recorded against it, it would create a concavity in its reputation. There can be situations when the corporate reputation is affected when a Director is indicted. 59. In view of our aforesaid analysis, we arrive at the irresistible conclusion that for maintaining the prosecution under Section 141 of the Act, arraigning of a company as an accused is imperative. The other categories of offenders can only be brought in the drag-net on the touchstone of vicarious liability as the same has been stipulated in the provision itself. We say so on the basis of the ratio laid down in C.V. Parekh [(1970) 3 SCC 491 : 1971 SCC (Cri) 97] which is a three-Judge Bench decision. Thus, the view expressed in does not correctly lay down the law and, accordingly, is hereby overruled. The decision in Anil Hada [(2000) 1 SCC 1 : 2001 SCC (Cri) 174] is overruled with the qualifier as stated in para 51. The decision in Modi Distillery [(1987) 3 SCC 684 : 1987 SCC (Cri) 632] has to be treated to be restricted to its own facts as has been explained by us hereinabove.” Since the corporate debtor would be covered by the moratorium provision contained in Section 14 of the IBC, by which continuation of Section 138/141 proceedings against the corporate debtor and initiation of Section 138/141 proceedings against the said debtor during the corporate insolvency resolution process are interdicted, what is stated in paragraphs 51 and 59 in Aneeta Hada (supra) would then become applicable. The legal impediment contained in Section 14 of the IBC would make it impossible for such proceeding to continue or be instituted against the corporate debtor. Thus, for the period of moratorium, since no Section 138/141 proceeding can continue or be initiated against the corporate debtor because of a statutory bar, such proceedings can be initiated or continued against the persons mentioned in Section 141(1) and (2) of the Negotiable Instruments Act. This being the case, it is clear that the moratorium provision contained in Section 14 of the IBC would apply only to the corporate debtor, the natural persons mentioned in Section 141 continuing to be statutorily liable under Chapter XVII of the Negotiable 78. In conclusion, disagreeing with the Bombay High Court and the Calcutta High Court judgments in Tayal Cotton Pvt. Ltd. v. State of Maharashtra, 2018 SCC OnLine Bom 2069 : (2019) 1 Mah LJ 312 and M/s MBL Infrastructure Ltd. v. Manik Chand Somani, CRR 3456/2018 (Calcutta High Court; decided on 16.04.2019), respectively, we hold that a Section 138/141 proceeding against a corporate debtor is covered by Section 14(1)(a) of the IBC. 79. Resultantly, the civil appeal is allowed and the judgment under appeal is set aside. However, the Section 138/141 proceedings in this case will continue both against the company as well as the appellants for the reason given by us in paragraph 77 above as well as the fact that the insolvency resolution process does not involve a new management taking over. We may also note that the moratorium period has come to an end in this case. Criminal Appeal arising out of SLP (Criminal) Diary No.32585 of 2019 1. Delay condoned. Leave granted. 2. Shri S. Nagamuthu, learned Senior Advocate appearing on behalf of the appellant, has made various submissions before us. Suffice it to state that his first submission is that as a moratorium is imposed against the corporate debtor w.e.f. 10.07.2017, the Section 138 complaint that was preferred on 19.09.2017 must be quashed. 3. On the facts of this case, three cheques – for INR 25,00,000/- dated 31.05.2017, for INR 25,00,000/- dated 30.06.2017, and for INR 23,51,408/- dated 31.07.2017 were issued by the appellant in favour of the respondent. Before the cheques could be presented for payment, on 10.07.2017, the Adjudicating Authority admitted a petition by an operational creditor under Section 9 of the IBC and imposed a moratorium under Section 14. The three cheques were presented for payment, but were returned citing “insufficient funds” as the reason on 04.08.2017. The legal notice to initiate proceedings under Section 138 of the Negotiable Instruments Act was issued by the respondent on 12.08.2017. As no payment was forthcoming within the time specified, the respondent preferred a complaint against the corporate debtor alone on 19.09.2017. 4. The respondent did not dispute the aforesaid dates, only reiterating that the High Court was right in dismissing a quash petition filed by the appellant under Section 482 of the CrPC. 5. Since the complaint that has been filed in the present case is against the corporate debtor alone, without joining any of the persons in charge of and responsible for the conduct of the business of the corporate debtor, the complaint needs to be quashed, given our judgment in Civil Appeal No.10355 of 2018. The judgment under appeal, dated 02.04.2019, is therefore set aside and the appeal is allowed. Criminal Appeals arising out of SLP ( Criminal) Nos.10587/2019, 1. Leave granted. 2. On the facts of these cases, all the complaints filed by different creditors of the same appellant under Section 138 read with Section 141 of the Negotiable Instruments Act were admittedly filed long before the Adjudicating Authority admitted a petition under Section 7 of the IBC and imposed moratorium on 19.03.2019. 3. Given our judgment in Civil Appeal No.10355 of 2018, the said moratorium order would not cover the appellant in these cases, who is not a corporate debtor, but a Director thereof. Thus, the impugned order issuing a proclamation under Section 82 CrPC cannot be faulted with on this ground. The appeals are therefore dismissed. Criminal Appeal arising out of SLP (Criminal) Nos.2246-2247 of 2020 1. Leave granted. 2. In this case, the two complaints dated 12.03. 2018 and 14.03.2018 under Section 138 read with Section 141 of the Negotiable Instruments Act were filed by the respondent against the corporate debtor along with persons in charge of and responsible for the conduct of business of the corporate debtor. On 14.02.2020, the Adjudicating Authority admitted a petition under Section 9 of the IBC against the corporate debtor and imposed a moratorium. The impugned interim order dated 20.02.2020 is for the issuance of non-bailable warrants against two of the accused individuals. 3. Given our judgment in Civil Appeal No.10355 of 2018, the moratorium provision not extending to persons other than the corporate debtor, this appeal also stands dismissed. Criminal Appeal arising out of SLP (Criminal) No.2496 of 2020 1. Leave granted. 2. In the present case, a complaint under Section 138 read with Section 141 of the Negotiable Instruments Act was filed by Respondent No.1 against the corporate debtor together with its Managing Director and Director on 15.05.2018. It is only thereafter that a petition under Section 9 of the IBC, filed by Respondent No.1, was admitted by the Adjudicating Authority and a moratorium was imposed on 30.10.2018. The impugned judgment dated 16.10.2019 held that a petition under Section 482, CrPC to quash the said proceeding would be rejected as Section 14 of the IBC did not apply to Section 138 proceedings. 3. The impugned judgment is set aside in view of our judgment in Civil Appeal No.10355 of 2018, and the complaint is directed to be continued against the Managing Director and Director, respectively. Criminal Appeal arising out of SLP (Criminal) No.3500 of 2020 1. Leave granted. 2. The complaint in the present case was filed by the respondent on 28.07.2016. An application under Section 7, IBC was admitted by the Adjudicating Authority only on 20.02.2018 and moratorium imposed on the same date. The impugned judgment rejected a petition under Section 482 of the CrPC on the ground that Section 138 proceedings are not covered by Section 14 of the IBC. 3. The impugned judgment is set aside in view of our judgment in Civil Appeal No.10355 of 2018, and the complaint is directed to be continued against the appellant. Criminal Appeal arising out of SLP (Criminal) No.5638-5651/2020, Leave granted. In these appeals, the appellants have approached us directly from the learned Magistrate’s impugned orders. The learned Magistrate has held that Section 14 of the IBC would not cover proceedings under Section 138 of the Negotiable Instruments Act. As a result, warrants of attachment have been issued under Section 431 read with Section 421 CrPC against various accused persons, including the corporate debtor and persons who are since deceased. While setting aside the impugned judgments, given our judgment in Civil Appeal No.10355 of 2018, we remand these cases to the Magistrate to apply the law laid down by us in Civil Appeal No.10355 of 2018, and thereafter decide all other points that may arise in these cases in accordance with law. 1. All these writ petitions have been filed under Article 32 of the Constitution of India by erstwhile Directors/persons in charge of and responsible for the conduct of the business of the corporate debtor. They are all premised upon the fact that Section 138 proceedings are covered by Section 14 of the IBC and hence, cannot continue against the corporate debtor and consequently, against the petitioners. 2. Given our judgment in Civil Appeal No.10355 of 2018, all these writ petitions have to be dismissed in view of the fact that such proceedings can continue against erstwhile Directors/persons in charge of and responsible for the conduct of the business of the corporate debtor.
The Supreme Court has said that legal cases about bouncing checks are "quasi-criminal" in nature. This means they are a mix of civil (money-related) and criminal (punishment-related) actions. These cases fall under Section 138 of the Negotiable Instruments Act. The Court also made an interesting comment, saying that these Section 138 cases are like a "civil sheep" in "criminal wolf's clothing." A group of judges, including Justices RF Nariman, Navin Sinha, and KM Joseph, made these comments. They were deciding if a temporary halt on legal actions, called a "moratorium," applied to these check-bouncing cases. This moratorium is put in place under Section 14 of the Insolvency and Bankruptcy Code for companies facing financial trouble. One main question for the Court was whether a Section 138 check-bouncing case counted as a "proceeding" under Section 14 of the Insolvency and Bankruptcy Code. Many lower courts had believed that since check-bouncing cases were criminal, they would not be stopped by this moratorium. To decide if those lower court views were correct, the judges looked closely at what Section 138 check-bouncing cases really are. The judges noted that when this law was created, lawmakers knew that "what is normally a civil debt can also be treated as a crime." Also, old debts that cannot be legally collected anymore are not covered by Section 138. The fact that the law can order a fine up to twice the check amount, paid as compensation to the person who was wronged, shows its mixed nature. This payment covers the check amount, interest, and other costs. It is truly a mixed law designed to make sure a bounced check gets paid if it would otherwise be legally enforceable in a civil court. Because the law requires the person who wrote the check to be given a chance to pay back the money, through an official demand notice, the Court said that "the real goal of this law is not to punish the person who did wrong, but to pay back the victim." The judges also pointed out that you don't need to prove the person intended to commit a crime (known as "mens rea") for this offense. They also noticed that the process for these check cases is different from the usual steps in criminal law. First, no court can start a Section 138 case unless the victim (the person the check was written to, or who legally owns it) files a written complaint. Also, there's a concept called "cause of action" in Section 142(1)(b), meaning the complaint must be filed within one month of the event that led to the lawsuit. The judgment noted that the idea of a "cause of action" is clearly missing from the part of criminal law that deals with where criminal courts have the power to hear cases. The judges then said that a change made to the Negotiable Instruments Act in 2018, which allowed for temporary compensation payments, made these cases seem even more like civil cases. Referring to an earlier court decision, the judgment explained that "a civil case isn't always one that starts with filing a lawsuit and ends with enforcing a court order." "Given these tests, it is clear that a Section 138 case can be called a 'civil sheep' in 'criminal wolf's clothing'," the judges said. This is because the law aims to protect the victim's interests. The broader interests of the state (government) are included only when the victim themselves takes the check-bouncing case to court, as their review of the law showed. **Moratorium Under Section 14 IBC Covers Section 138 NI Act Proceedings Against Corporate Debtor For Cheque Dishonour : Supreme Court** **Quasi-criminal proceedings** A government lawyer, Aman Lekhi, disagreed with calling Section 138 cases "quasi-criminal." He argued that since the law allows for punishments like those listed in Section 53 of the Indian Penal Code, it cannot be called "quasi-criminal." The Court rejected this argument. They said there are many actions punishable by jail time or fines, or both, that are still described as "quasi-criminal." Examples include criminal contempt (disobeying a court) or breaking rules in company law. "Therefore, it is clear, given the mixed nature of a civil contempt case, which several court rulings have called 'quasi-criminal,' there is nothing wrong with calling a Section 138 case 'quasi-criminal' too. This is for the reasons we have given after analyzing the Negotiable Instruments Act," the judges said. "We, therefore, reject the government lawyer's strong argument that 'quasi-criminal' is the wrong name for Section 138 cases, and that some past cases should be reconsidered." The Court decided that Section 138 cases against a company that owes money will be covered by Section 14 of the Insolvency and Bankruptcy Code. "Based on our review of the Negotiable Instruments Act, its changes, and the previous court cases mentioned, it is clear that a quasi-criminal case under this law would count as a 'proceeding' under Section 14(1)(a) of the Insolvency and Bankruptcy Code. This means the moratorium will apply to such cases," Justice Nariman wrote in the judgment. Case Details Case Title :P Mohanraj and others v M/s Shah Brothers Ispat Ltd and connected cases Coram : Justices RF Nariman, Navin Sinha and KM Joseph
1. Steel products were supplied by the respondent to one M/s. Diamond Engineering Pvt. Ltd. [“the company”] from 21.09.2015 to 11.11.2016, as a result of which INR 24,20,91,054/- was due and payable by the company. As many as 51 cheques were issued by the company in favour of the respondent towards amounts payable for supplies, all of which were returned dishonoured for the reason “funds insufficient” on 03.03.2017. As a result, on 31.03.2017, the respondent issued a statutory demand notice under Section 138 read with Section 141 of the Negotiable Instruments Act, 1881, calling upon the company and its three Directors, the appellants no.1-3 herein, to pay this amount within 15 days of the receipt of the notice. 2. On 28.04.2017, two cheques for a total amount of INR 80,70,133/- presented by the respondent for encashment were returned dishonoured for the reason “funds insufficient”. A second demand notice dated 05.05.2017 was therefore issued under the selfsame Sections by the respondent, calling upon the company and the appellants to pay this amount within 15 days of the receipt of the notice. 3. Since no payment was forthcoming pursuant to the two statutory demand notices, two criminal complaints, being Criminal Complaint No.SS/552/2017 and Criminal Complaint No. SS/690/2017 dated 17.05.2017 and 21.06.2017, respectively, were filed by the respondent against the company and the appellants under Section 138 read with Section 141 of the Negotiable Instruments Act before the Additional Chief summons were issued by the ACMM to the company and the appellants in both the criminal complaints. 4. Meanwhile, as a statutory notice under Section 8 of the Insolvency and Bankruptcy Code, 2016 [“IBC”] had been issued on 21.03.2017 by the respondent to the company, and as an order dated 06.06.2017 was passed by the Adjudicating Authority admitting the application under Section 9 of the IBC and directing commencement of the corporate insolvency resolution process with respect to the company, a moratorium in terms of Section 14 of the IBC was ordered. Pursuant thereto, on 24.05.2018, the Adjudicating Authority stayed further proceedings in the two criminal complaints pending before the ACMM. In an appeal filed to the National Company Law Appellate Tribunal [“NCLAT”], the NCLAT set aside this order, holding that Section 138, being a criminal law provision, cannot be held to be a “proceeding” within the meaning of Section 14 of the IBC. In an appeal filed before this Court, on 26.10.2018, this Court ordered a stay of further proceedings in the two complaints pending before the learned ACMM. On 30.09.2019, since a resolution plan submitted by the promoters of the company had been approved by the committee of creditors, the Adjudicating Authority approved such plan as a result of which, the moratorium order dated 06.06.2017 ceased to have effect. It may only be added that at present, an application for withdrawal of approval of this resolution plan has been filed by the financial creditors of the company before the Adjudicating Authority. Equally, an application to extend time for implementation of this plan has been filed by the resolution applicant sometime in October 2020 before the Adjudicating Authority. Both these applications have yet to be decided by the Adjudicating Authority, the next date of hearing before such Authority being 08.02.2021. 5. The important question that arises in this appeal is whether the institution or continuation of a proceeding under Section 138/141 of the Negotiable Instruments Act can be said to be covered by the moratorium provision, namely, Section 14 of the IBC. 6. Shri Jayanth Muth Raj, learned Senior Advocate appearing on behalf of the appellants, has painstakingly taken us through various provisions of the IBC and has argued that the object of Section 14 being that the assets of the corporate debtor be preserved during the corporate insolvency resolution process, it would be most incongruous to hold that a Section 138 proceeding, which, although a criminal proceeding, is in essence to recover the amount of the bounced cheque, be kept out of the word “proceedings” contained in Section 14(1)(a) of the IBC. According to the learned Senior Advocate, given the object of Section 14, there is no reason to curtail the meaning of the expression “proceedings”, which would therefore include all proceedings against the corporate debtor, civil or criminal, which would result in “execution” of any judgment for payment of compensation. He emphasised the fact that Section 14(1)(a) was extremely wide and ought not to be cut down by judicial interpretation given the expression “any” occurring twice in Section 14(1)(a), thus emphasising that so long as there is a judgment by any court of law (which even extends to an order by an authority) which results in coercive steps being taken against the assets of the corporate debtor, all such proceedings are necessarily subsumed within the meaning of Section 14(1)(a). He also referred to the width of Section 14(1)(b) and the language of Section 14(1)(b) and therefore argued that given the object of Section 14, no rule of construction, be it ejusdem generis or noscitur a sociis can be used to cut down the plain meaning of the words used in Section 14(1)(a). He cited a number of judgments in support of this proposition. He also argued that in any event, even if criminal proceedings properly so-called are to be excluded from Section 14(1)(a), a Section 138 proceeding being quasi-criminal in nature, whose dominant object is compensation being payable to the person in whose favour a cheque is made, which has bounced, the punitive aspect of Section 138 being only to act as an in terrorem proceeding to achieve this result, it is clear that in any event, a hybrid proceeding partaking of this nature would certainly be covered. He cited a number of judgments in order to buttress this proposition as well. 7. Shri Jayant Mehta, learned Advocate appearing on behalf of the respondent, rebutted each of these submissions with erudition and grace. He referred to the Report of the Insolvency Law Committee of February 2020 to drive home his point that the object of Section 14 being a limited one, a criminal proceeding could not possibly be included within it. He further went on to juxtapose the moratorium provisions which would apply in the case of individuals and firms in Sections 85, 96, and 101 of the IBC, emphasising that the language of these provisions being wider would, by way of contrast, include a Section 138 proceeding so far as individuals and firms are concerned, which has been expressly eschewed so far as Section 14’s applicability to corporate debtors is concerned. He relied upon the ejusdem generis/noscitur a sociis rules of construction that had, in fact, been applied to Section 14(1)(a) by the Bombay High Court and the Calcutta High Court to press home his point that since the expression “proceedings” takes its colour from the previous expression “suits”, such proceedings must necessarily be civil in nature. He cited judgments which distinguish between civil and criminal proceedings and went on to argue that Section 138 of the Negotiable Instruments Act is a criminal proceeding whose object may be two fold, the primary object being to make what was once a civil wrong punishable by a jail sentence and/or fine. He relied heavily upon judgments which construed like expressions contained in Section 22(1) of the Sick Industrial Companies Act, 1985 [“SICA”], and Section 446(2) of the Companies Act, 1956. He also was at pains to point out from several judgments that the Delhi High Court had not applied Section 14 of the IBC to stay proceedings under Section 34 of the Arbitration and Conciliation Act, 1996; the Bombay High Court had not applied Section 14 of the IBC to stay prosecution under the Employees’ Provident Funds Act, 1952; and that the Delhi High Court had not stayed proceedings covered by the Prevention of Money-Laundering Act, 2002, stating that criminal proceedings were not the subject matter of Section 14 of the IBC. He thus supported the judgment under appeal, stating that the consistent view of the High Courts has been that Section 138, being a criminal law provision, could not possibly be said to be covered by Section 14 of the IBC. He also relied upon the provision contained in Section 33(5) of the IBC to argue that when a liquidation order is passed, no suit or other legal proceeding can be instituted by or against a corporate debtor, similar to what is contained in Section 446 of the Companies Act, 1956, and if those decisions are seen, then the expression “or other legal proceeding” obviously cannot include criminal proceedings. On the other hand, in any case, the expression “or other legal proceeding” should be contrasted with the word “proceedings” in Section 14(1)(a) of the IBC, which cannot possibly include a criminal proceeding, given its object. Lastly, he also relied upon Section 32A of the IBC, which was introduced by the Insolvency and Bankruptcy Code (Amendment) Act, 2020 w.e.f. 28.12.2019, and emphasised the fact that the liability of a corporate debtor for an offence committed prior to the commencement of the corporate insolvency resolution process shall cease in certain circumstances. This provision would have been wholly unnecessary if Section 14(1)(a) were to cover criminal offences as well, as they would cease for the period of moratorium. Thus, he argued that this Section throws considerable light on the fact that criminal prosecutions are outside the ken of the expression “proceedings” contained in Section 14(1)(a) of the IBC. 8. Shri Aman Lekhi, learned Additional Solicitor General, appearing on behalf of the Union of India in W.P. (Crl.) No. 297/2020, has comprehensively taken us through Chapter XVII of the Negotiable Instruments Act to argue that a plain reading of the said Chapter would reveal that the offence under Section 138 is a purely criminal offence which results in imposition of a jail sentence or fine or both, being punishments exclusively awardable under Section 53 of the Indian Penal Code, 1860 only in a criminal proceeding, and hence, does not fall within “proceedings” contemplated by Section 14 of the IBC. He further states that since compounding under criminal law can only take place at the instance of the complainant/injured party, a subordinate criminal court has no inherent power to terminate proceedings under Section 138/141 upon “payment of compensation to the satisfaction of the court”. He then relied upon the rule of noscitur a sociis to state that since the expression “proceedings” contained in Section 14(1)(a) of the IBC is preceded by the expression “suits” and followed by the expression “execution”, it has to be read in a sense analogous to civil proceedings dealing with private rights of action as contrasted with criminal proceedings which deal with public wrongs. According to the learned Additional Solicitor General, the intent manifest in Section 14 of the IBC is reinforced by the introduction of Section 32A to the IBC in that if the intent of Section 14 were to prohibit initiation or continuation of criminal proceedings, the legislature would not have contemplated the introduction of Section 32A by way of amendment. He further states that if the expression “proceedings” contained in Section 14 were to be construed so as to include criminal proceedings, it would render the first proviso to Section 32, which deals with institution of prosecution against a corporate debtor during the corporate insolvency resolution process, and the second proviso, which indicates pendency of criminal prosecution against those in charge of and responsible for the conduct of the corporate debtor, otiose. He relied on the judgment in Aneeta Hada v. Godfather Travels & Tours (P) Ltd., (2012) 5 SCC 661 [“Aneeta Hada”] to buttress his submission that criminal liability can fall on Directors/persons in charge of and responsible for the conduct of the corporate debtor even where the corporate debtor may not be proceeded against by virtue of Section 14 or Section 32A. He lastly submits that Sections 81 and 101 of the IBC, in speaking of a moratorium in context of “any debt” also lend support to his contention that moratorium under the IBC only applies to civil proceedings within the realm of private law, and that since Section 138 proceedings are not proceedings for the recovery of a debt, they cannot fall within the moratorium provisions set out by Sections 14 or 81 or 101. 9. Having heard learned counsel, it is important at this stage to set out Section 14 of the IBC, which reads as follows: “14. Moratorium.—(1) Subject to provisions of sub-sections (2) and (3), on the insolvency commencement date, the Adjudicating Authority shall by order declare moratorium for prohibiting all of the following, namely— (a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel (b) transferring, encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; (c) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, (d) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. Explanation.—For the purposes of this sub-section, it is hereby clarified that notwithstanding anything contained in any other law for the time being in force, a license, permit, registration, quota, concession, clearances or a similar grant or right given by the Central Government, State Government, local authority, sectoral regulator or any other authority constituted under any other law for the time being in force, shall not be suspended or terminated on the grounds of insolvency, subject to the condition that there is no default in payment of current dues arising for the use or continuation of the license, permit, registration, quota, concession, clearances or a similar grant or right during the moratorium period. (2) The supply of essential goods or services to the corporate debtor as may be specified shall not be terminated or suspended or interrupted during moratorium period. (2-A) Where the interim resolution professional or resolution professional, as the case may be, considers the supply of goods or services critical to protect and preserve the value of the corporate debtor and manage the operations of such corporate debtor as a going concern, then the supply of such goods or services shall not be terminated, suspended or interrupted during the period of moratorium, except where such corporate debtor has not paid dues arising from such supply during the moratorium period or in such circumstances as may be specified. (3) The provisions of sub-section (1) shall not apply to— (a) such transactions, agreements or other arrangements as may be notified by the Central Government in consultation with any financial sector (b) a surety in a contract of guarantee to a corporate debtor. (4) The order of moratorium shall have effect from the date of such order till the completion of the corporate insolvency Provided that where at any time during the corporate insolvency resolution process period, if the Adjudicating Authority approves the resolution plan under sub-section (1) of Section 31 or passes an order for liquidation of corporate debtor under Section 33, the moratorium shall cease to have effect from the date of such approval or liquidation order, as the case may be.” 10. A cursory look at Section 14(1) makes it clear that subject to the exceptions contained in sub-sections (2) and (3), on the insolvency commencement date, the Adjudicating Authority shall mandatorily, by order, declare a moratorium to prohibit what follows in clauses (a) to (d). Importantly, under sub-section (4), this order of moratorium does not continue indefinitely, but has effect only from the date of the order declaring moratorium till the completion of the corporate insolvency resolution process which is time bound, either culminating in the order of the Adjudicating Authority approving a resolution plan or in liquidation. 11. The two exceptions to Section 14(1) are contained in sub-sections (2) and (3) of Section 14. Under sub-section (2), the supply of essential goods or services to the corporate debtor during this period cannot be terminated or suspended or even interrupted, as otherwise the corporate debtor would be brought to its knees and would not able to function as a going concern during this period. The exception created in sub-section (3) (a) is important as it refers to “transactions” as may be notified by the Central Government in consultation with experts in finance. The expression “financial sector regulator” is defined by Section 3(18) as “3. Definitions.—In this Code, unless the context otherwise (18) “financial sector regulator” means an authority or body constituted under any law for the time being in force to regulate services or transactions of financial sector and includes the Reserve Bank of India, the Securities and Exchange Board of India, the Insurance Regulatory and Development Authority of India, the Pension Fund Regulatory Authority and such other regulatory authorities as may be xxx xxx xxx” 12. Thus, the Central Government, in consultation with experts, may state that the moratorium provision will not apply to such transactions as may be notified. This is of some importance as Section 14(1)(a) does not indicate as to what the proceedings contained therein apply to. Sub- section 3(a) provides the answer – that such “proceedings” relate to “transactions” entered into by the corporate debtor pre imposition of the moratorium. Section 3(33) defines “transaction” as follows: “3. Definitions.—In this Code, unless the context otherwise (33) “transaction” includes an agreement or arrangement in writing for the transfer of assets, or funds, goods or services, xxx xxx xxx” 13. This definition being an inclusive one is extremely wide in nature and would include a transaction evidencing a debt or liability. This is made clear by Section 96(3) and Section 101(3) which contain the same language as Section 14(3)(a), these Sections speaking of ‘debts’ of the individual or firm. Equally important is Section 14(3)(b), by which a surety in a contract of guarantee of a debt owed by a corporate debtor cannot avail of the benefit of a moratorium as a result of which a creditor can enforce a guarantee, though not being able to enforce the principal debt during the period of moratorium – see State Bank of India v. V. Ramakrishnan, (2018) 17 SCC 394 (at paragraph 20) [“V. 14. We now come to the language of Section 14(1)(a). It will be noticed that the expression “or” occurs twice in the first part of Section 14(1)(a) – first, between the expressions “institution of suits” and “continuation of pending suits” and second, between the expressions “continuation of pending suits” and “proceedings against the corporate debtor…”. The sweep of the provision is very wide indeed as it includes institution, continuation, judgment and execution of suits and proceedings. It is important to note that an award of an arbitration panel or an order of an authority is also included. This being the case, it would be incongruous to hold that the expression “the institution of suits or continuation of pending suits” must be read disjunctively as otherwise, the institution of arbitral proceedings and proceedings before authorities cannot be subsumed within the expression institution of “suits” which are proceedings in civil courts instituted by a plaint (see Section 26 of the Code of Civil Procedure, 1908). Therefore, it is clear that the expression “institution of suits or continuation of pending suits” is to be read as one category, and the disjunctive “or” before the word “proceedings” would make it clear that proceedings against the corporate debtor would be a separate category. What throws light on the width of the expression “proceedings” is the expression “any judgment, decree or order” and “any court of law, tribunal, arbitration panel or other authority”. Since criminal proceedings under the Code of Criminal Procedure, 1973 [“CrPC”] are conducted before the courts mentioned in Section 6, CrPC, it is clear that a Section 138 proceeding being conducted before a Magistrate would certainly be a proceeding in a court of law in respect of a transaction which relates to a debt owed by the corporate debtor. Let us now see as to whether the expression “proceedings” can be cut down to mean civil proceedings stricto sensu by the use of rules of interpretation such as ejusdem generis and noscitur a sociis. 15. Shri Aman Lekhi, learned Additional Solicitor General, relied upon the judgment in State of Assam v. Ranga Mahammad, (1967) 1 SCR 454. The Court was concerned with the meaning of the expression “posting” which occurs in Article 233 of the Constitution, qua District Judges in a State. Applying the doctrine of noscitur a sociis, this Court held that given the fact that the expression “posting” comes in between “appointment” and “promotion” of District Judges, it is clear that a narrower meaning has to be assigned to it, namely, that of assigning someone to a post which would not include “transfer”. Quite apart from the positioning of the word “posting” in between “appointment” and “promotion”, from which it took its colour, even otherwise, Articles 234 and 235 of the Constitution would make it clear that since “transfer” of District Judges is with the High Court and not with the State Government, quite obviously, the expression “posting” could not be used in its wider sense – see pages 460 and 461. This judgment is an early application of the rule of noscitur a sociis, given the position of a wider word between two narrow words, and more importantly, the reading of other allied provisions in the Constitution. 16. In Jagdish Chander Gupta v. Kajaria Traders (India) Ltd., (1964) 8 SCR 50, a five-Judge Bench of this Court had to decide as to whether the expression “or other proceeding” occurring in Section 69(3) of the Indian Partnership Act, 1932 would include a proceeding to appoint an arbitrator under Section 8(2) of the Arbitration Act, 1940. This Court held: “It remains, however, to consider whether by reason of the fact that the words “other proceeding” stand opposed to the words “a claim of set-off” any limitation in their meaning was contemplated. It is on this aspect of the case that the learned Judges have seriously differed. When in a statute particular classes are mentioned by name and then are followed by general words, the general words are sometimes construed ejusdem generis i.e. limited to the same category or genus comprehended by the particular words but it is not necessary that this rule must always apply. The nature of the special words and the general words must be considered before the rule is applied. In Allen v. Emersons [(1944) IKB 362] Asquith, J., gave interesting examples of particular words followed by general words where the principle of ejusdem generis might or might not apply. We think that the following illustration will clear any difficulty. In the expression “books, pamphlets, newspapers and other documents” private letters may not be held included if “other documents” be interpreted ejusdem generis with what goes before. But in a provision which reads “newspapers or other document likely to convey secrets to the enemy”, the words “other document” would include document of any kind and would not take their colour from “newspapers”. It follows, therefore, that interpretation ejusdem generis or noscitur a sociis need not always be made when words showing particular classes are followed by general words. Before the general words can be so interpreted there must be a genus constituted or a category disclosed with reference to which the general words can and are intended to be restricted. Here the expression “claim of set-off” does not disclose a category or a genus. Set-offs are of two kinds — legal and equitable — and both are already comprehended and it is difficult to think of any right “arising from a contract” which is of the same nature as a claim of set-off and can be raised by a defendant in a suit. Mr B.C. Misra, whom we invited to give us examples, admitted frankly that it was impossible for him to think of any proceeding of the nature of a claim of set-off other than a claim of set-off which could be raised in a suit such as is described in the second sub-section. In respect of the first sub-section he could give only two examples. They are (i) a claim by a pledger of goods-with an unregistered firm whose good are attached and who has to make an objection under Order 21 Rule 58 of the Code of Civil Procedure and (ii) proving a debt before a liquidator. The latter is not raised as a defence and cannot belong to the same genus as a “claim of set-off”. The former can be made to fit but by a stretch of some considerable imagination. It is difficult for us to accept that the legislature was thinking of such far-fetched things when it spoke of “other proceeding” ejusdem generis with a claim of set-off.” “In our judgment, the words “other proceeding” in sub- section (3) must receive their full meaning untrammelled by the words “a claim of set-off”. The latter words neither intend nor can be construed to cut down the generality of the words “other proceeding”. The sub-section provides for the application of the provisions of sub-sections (1) and (2) to claims of set-off and also to other proceedings of any kind which can properly be said to be for enforcement of any right arising from contract except those expressly mentioned as exceptions in sub-section (3) and sub-section (4).” 17. Likewise, in Rajasthan State Electricity Board v. Mohan Lal, (1967) 3 SCR 377, this Court had to decide whether the expression “other authorities” in Article 12 of the Constitution of India took its colour from the preceding expressions used in the said Article, making such authorities only those authorities who exercised governmental power. This was emphatically turned down by a Constitution Bench of this Court, stating: “In our opinion, the High Courts fell into an error in applying the principle of ejusdem generis when interpreting the expression “other authorities” in Article 12 of the Constitution, as they overlooked the basic principle of interpretation that, to invoke the application of ejusdem generis rule, there must be a distinct genus or category running through the bodies already named. Craies on, Statute Law summarises the “The ejusdem generis rule is one to be applied with caution and not pushed too far…. To invoke the application of the ejusdem generis rule there must be a distinct genus or category. The specific words must apply not to different objects of a widely differing character but to something which can be called a class or kind of objects. Where this is lacking, the rule cannot apply, but the mention of a single species does not constitute a genus [Craies on Statute Law, 6th Edn, p 181].” Maxwell in his book on ‘Interpretation of Statutes’ explained the principle by saying: “But the general word which follows particular and specific words of the same nature as itself takes its meaning from them, and is presumed to be restricted to the same genus as those words …. Unless there is a genus or category, there is no room for the application of the ejusdem generis doctrine [Maxwell on Interpretation of Statutes, 11th Edn pp. 326, 327]”. In United Towns Electric Co., Ltd. v. Attorney-General for Newfoundland [(1939) I AER 423] , the Privy Council held that, in their opinion, there is no room for the application of the principle of ejusdem generis in the absence of any mention of a genus, since the mention of a single species — for example, water rates — does not constitute a genus. In Article 12 of the Constitution, the bodies specifically named are the Executive Governments of the Union and the States, the Legislatures of the Union and the States, and local authorities. We are unable to find any common genus running through these named bodies, nor can these bodies be placed in one single category on any rational basis. The doctrine of ejusdem generis could not, therefore, be, applied to the interpretation of the expression “other authorities” in this article. The meaning of the word “authority” given in Webster's Third New International Dictionary, which can be applicable, is a public administrative agency or corporation having quasi- governmental powers and authorised to administer a revenue- producing public enterprise. This dictionary meaning of the word “authority” is clearly wide enough to include all bodies created by a statute on which powers are conferred to carry out governmental or quasi-governmental functions. The expression “other authorities” is wide enough to include within it every authority created by a statute and functioning within the territory of India, or under the control of the Government of India; and we do not see any reason to narrow down this meaning in the context in which the words “other authorities” are used in Article 12 of the Constitution.” 18. In CBI v. Braj Bhushan Prasad, (2001) 9 SCC 432, this Court was asked to construe Section 89 of the Bihar Reorganisation Act with reference to noscitur a sociis. In turning this down, this Court held: “26. We pointed out the above different shades of meanings in order to determine as to which among them has to be chosen for interpreting the said word falling in Section 89 of the Act. The doctrine of noscitur a sociis (meaning of a word should be known from its accompanying or associating words) has much relevance in understanding the import of words in a statutory provision. The said doctrine has been resorted to with advantage by this Court in a number of cases vide Bangalore Water Supply & Sewerage Board v. A. Rajappa [(1978) 2 SCC 213 : 1978 SCC (L&S) 215], Rohit Pulp and Paper Mills Ltd. v. CCE [(1990) 3 SCC 447], Oswal Agro Mills Ltd. v. CCE [1993 Supp (3) SCC 716], K. Bhagirathi G. Shenoy v. K.P. Ballakuraya [(1999) 4 SCC 135] and Lokmat Newspapers (P) Ltd. v. Shankarprasad [(1999) 6 SCC 275 : 1999 SCC (L&S) 27. If so, we have to gauge the implication of the words “proceeding relating exclusively to the territory” from the surrounding context. Section 89 of the Act says that proceeding pending prior to the appointed day before “a court (other than the High Court), tribunal, authority or officer” shall stand transferred to the “corresponding court, tribunal, authority or officer” of Jharkhand State. A very useful index is provided in the Section by defining the words “corresponding court, tribunal, authority or officer in the State of Jharkhand” “The court, tribunal, authority or officer in which, or before whom, the proceeding would have laid if it had been instituted after the appointed day;” 28. Look at the words “would have laid if it had been instituted after the appointed day”. In considering the question as to where the proceeding relating to the 36 cases involved in these appeals would have laid, had they been instituted after the appointed day, we have absolutely no doubt that the meaning of the word “exclusively” should be understood as “substantially all or for the greater part or principally”. 29. We cannot overlook the main object of Section 89 of the Act. It must not be forgotten that transfer of criminal cases is not the only subject covered by the Section. The provision seeks to allocate the files or records relating to all proceedings, after the bifurcation if they were to be instituted after the appointed day. Any interpretation should be one which achieves that object and not that which might create confusion or perplexity or even bewilderment to the officers of the respective States. In other words, the interpretation should be made with pragmatism, not pedantically or in a stilted manner. For the purpose of criminal cases, we should bear in mind the subject-matter of the case to be transferred. When so considering, we have to take into account further that all the 36 cases are primarily for the offences under the PC Act and hence they are all triable before the Courts of Special Judges. Hence, the present question can be determined by reference to the provisions of the PC Act.” 19. In Godfrey Phillips India Ltd. v. State of U.P., (2005) 2 SCC 515, a Constitution Bench of this Court had to construe the meaning of the expression “luxury” in Entry 62 of List 2 of the Seventh Schedule to the Constitution of India. In this context, the rule of noscitur a sociis was applied by the Court, the Court also pointing out how a court must be careful before blindly applying the principle, as follows: “77. In the present context the general meaning of “luxury” has been explained or clarified and must be understood in a sense analogous to that of the less general words such as entertainments, amusements, gambling and betting, which are clubbed with it. This principle of interpretation known as “noscitur a sociis” has received approval in Rainbow Steels Ltd. v. CST [(1981) 2 SCC 141 : 1981 SCC (Tax) 90] , SCC at p. 145 although doubted in its indiscriminate application in State of Bombay v. Hospital Mazdoor Sabha [(1960) 2 SCR 866 : AIR 1960 SC 610] . In the latter case this Court was required to construe Section 2(j) of the Industrial Disputes Act “2(j) ‘industry’ means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen.” 78. It was found that the words in the definition were of very wide and definite import. It was suggested that these words should be read in a restricted sense having regard to the included items on the principle of “noscitur a sociis”. The suggestion was rejected in the following language: (Hospital Mazdoor Sabha case [(1960) 2 SCR 866 : AIR 1960 SC 610] , “It must be borne in mind that noscitur a sociis is merely a rule of construction and it cannot prevail in cases where it is clear that the wider words have been deliberately used in order to make the scope of the defined word correspondingly wider. It is only where the intention of the legislature in associating wider words with words of narrower significance is doubtful, or otherwise not clear that the present rule of construction can be usefully applied. It can also be applied where the meaning of the words of wider import is doubtful; but, where the object of the legislature in using wider words is clear and free of ambiguity, the rule of construction in question cannot be pressed into service.” (AIR p. 614, para 79. We do not read this passage as excluding the application of the principle of noscitur a sociis to the present case since it has been amply demonstrated with reference to authority that the meaning of the word “luxury” in Entry 62 is doubtful and has been defined and construed in different senses. 81. We are aware that the maxim of noscitur a sociis may be a treacherous one unless the “societas” to which the “socii” belong, are known. The risk may be present when there is no other factor except contiguity to suggest the “societas”. But where there is, as here, a term of wide denotation which is not free from ambiguity, the addition of the words such as “including” is sufficiently indicative of the societas. As we have said, the word “includes” in the present context indicates a commonality or shared features or attributes of the including word with the included. 83. Hence on an application of general principles of interpretation, we would hold that the word “luxuries” in Entry 62 of List II means the activity of enjoyment of or indulgence in that which is costly or which is generally recognised as being beyond the necessary requirements of an average member of society and not articles of luxury.” 20. In Vikram Singh v. Union of India, (2015) 9 SCC 502, this Court was asked to construe the expression “government or any other person” contained in Section 364-A of the Indian Penal Code, 1860 with reference to ejusdem generis. This Court, in repelling the contention, went on to “26. We may before parting with this aspect of the matter also deal with the argument that the expression “any other person” appearing in Section 364-A IPC ought to be read ejusdem generis with the expression preceding the said words. The argument needs notice only to be rejected. The rule of ejusdem generis is a rule of construction and not a rule of law. Courts have to be very careful in applying the rule while interpreting statutory provisions. Having said that the rule applies in situations where specific words forming a distinct genus class or category are followed by general words. The first stage of any forensic application of the rule, therefore, has to be to find out whether the preceding words constitute a genus class or category so that the general words that follow them can be given the same colour as the words preceding. In cases where it is not possible to find the genus in the use of the words preceding the general words, the rule of ejusdem generis will have no application. 27. In Siddeshwari Cotton Mills (P) Ltd. v. Union of India Venkatachaliah, J., as His Lordship then was, examined the rationale underlying ejusdem generis as a rule of construction “14. The principle underlying this approach to statutory construction is that the subsequent general words were only intended to guard against some accidental omission in the objects of the kind mentioned earlier and were not intended to extend to objects of a wholly different kind. This is a presumption and operates unless there is some contrary indication. But the preceding words or expressions of restricted meaning must be susceptible of the import that they represent a class. If no class can be found, ejusdem generis rule is not attracted and such broad construction as the subsequent words may admit will be favoured. As a ‘… if a class can be found, but the specific words exhaust the class, then rejection of the rule may be favoured because its adoption would make the general words unnecessary; if, however, the specific words do not exhaust the class, then adoption of the rule may be favoured because its rejection would [See: Construction of Statutes by E.A. Driedger p. 95 quoted by Francis Bennion in his Statutory Construction, pp. 829 and 830. ]” 28. Relying upon the observations made by Francis Bennion in his Statutory Construction and English decision in Magnhild v. McIntyre Bros. & Co. [(1920) 3 KB 321] and those rendered by this Court in Tribhuban Parkash Nayyar v. Union of India [(1969) 3 SCC 99], U.P. SEB v. Hari Shankar Jain summed up the legal principle in the following words: (Siddeshwari Cotton Mills case [(1989) 2 SCC 458 : 1989 “19. The preceding words in the statutory provision which, under this particular rule of construction, control and limit the meaning of the subsequent words must represent a genus or a family which admits of a number of species or members. If there is only one species it cannot supply the idea of a genus.” 29. Applying the above to the case at hand, we find that Section 364-A added to IPC made use of only two expressions viz. “Government” or “any other person”. Parliament did not use multiple expressions in the provision constituting a distinct genus class or category. It used only one single expression viz. “Government” which does not constitute a genus, even when it may be a specie. The situation, at hand, is somewhat similar to what has been enunciated in Craies on Statute Law (7th Edn.) at pp. 181-82 “… The modern tendency of the law, it was said [by Asquith, J. in Allen v. Emerson (1944 KB 362 : (1944) 1 All ER 344)], is ‘to attenuate the application of the rule of ejusdem generis’. To invoke the application of the ejusdem generis rule there must be a distinct genus or category. The specific words must apply not to different objects of a widely differing character but to something which can be called a class or kind of objects. Where this is lacking, the rule cannot apply (Hood-Barrs v. IRC [(1946) 2 All ER 768 (CA)]), but the mention of a single species does not constitute a genus. (Per Lord Thankerton in United Towns Electric Co. Ltd. v. Attorney General for Newfoundland [(1939) 1 All ER 423 (PC)].) ‘Unless you can find a category’, said Farwell L.J. (Tillmanns and Co. v. S.S. Knutsford Ltd. [(1908) 2 KB 385 (CA)] ), ‘there is no room for the application of the ejusdem generis doctrine’, and where the words are clearly wide in their meaning they ought not to be qualified on the ground of their association with other words. For instance, where a local Act required that ‘theatres and other places of public entertainment’ should be licensed, the question arose whether a ‘fun-fair’ for which no fee was charged for admission was within the Act. It was held to be so, and that the ejusdem generis rule did not apply to confine the words ‘other places’ to places of the same kind as theatres. So the insertion of such words as ‘or things of whatever description’ would exclude the rule. (Attorney General v. Leicester Corpn. [(1910) 2 Ch 359 : of Local Govt. Officers v. Bolton Corpn. [1943 AC referred to a definition of ‘workman’ as any person who has entered into a works under a contract with an employer whether the contract be by way of manual labour, clerical work ‘or otherwise’ and said: ‘The use of the words “or otherwise” does not bring into play the ejusdem generis principle: for “manual labour” and “clerical work” do not belong to a single limited genus' and Lord Wright in the same case said: ‘The ejusdem generis rule is often useful or convenient, but it is merely a rule of construction, not a rule of law. In the present case it is entirely inapt. It presupposes a “genus” but here the only “genus” is a contract with an employer’. 30. The above passage was quoted with approval by this Court in Grasim Industries Ltd. v. Collector of Customs [(2002) 4 SCC 297] holding that Note 1(a) of Chapter 84 relevant to that case was clear and unambiguous. It did not speak of a class, category or genus followed by general words making the rule of ejusdem generis inapplicable.” “32. This would mean that the term “person” appearing in Section 364-A IPC would include a company or association or body of persons whether incorporated or not, apart from natural persons. The tenor of the provision, the context and the statutory definition of the expression “person” all militate against any attempt to restrict the meaning of the term “person” to the “Government” or “foreign State” or “international inter-governmental organisations” only.” 21. In Pioneer Urban Land and Infrastructure Ltd. v. Union of India, (2019) 8 SCC 416, this Court laid down the limits of the application of the rule of construction that is contained in the expression “noscitur a sociis” “84. It was then argued, relying on a large number of judgments that Section 5(8)(f) must be construed noscitur a sociis with clauses (a) to (e) and (g) to (i), and so construed would only refer to loans or other financial transactions which would involve money at both ends. This, again, is not correct in view of the fact that Section 5(8)(f) is clearly a residuary “catch all” provision, taking within it matters which are not subsumed within the other sub-clauses. Even otherwise, in CED v. Kantilal Trikamlal [CED v. Kantilal Trikamlal, (1976) 4 SCC 643 : 1977 SCC (Tax) 90] , this Court has held that when an expression is a residuary one, ejusdem generis will not apply. It was thus held: (SCC p. 655, para 21) “21. … We have also to stress the expression “other right” in the explanation which is of the widest import and cannot be constricted by reading it ejusdem generis with “debt”. “Other right”, in the context, is expressly meant considerably to widen the concept and therefore suggests a somewhat contrary intention to the application of the ejusdem generis rule. We may derive instruction from Green's construction of the identical expression in the English Act. [Section ‘A disclaimer is an extinguishment of a right for this purpose. Although in the event the person disclaiming never has any right in the property, he has the right to obtain it, this inchoate right is a “right” for the purposes of Section 45(2). The ejusdem generis rule does not apply to the words “a debt or other right” and the word “right” is a word of the widest import. Moreover, the expression “at the expense of the deceased” is used in an ordinary and natural manner; and is apt to cover not only cases where the extinguishment involves a loss to the deceased of a benefit he already enjoyed, but also those where it prevents him from acquiring the benefit.’” 85. Also, in Subramanian Swamy v. Union of India [Subramanian Swamy v. Union of India, (2016) 7 SCC 221 : (2016) 3 SCC (Cri) 1], this Court held: (SCC pp. 291-93, paras “70. The other aspect that is being highlighted in the context of Article 19(2) is that defamation even if conceived of to include a criminal offence, it must have the potentiality to “incite to cause an offence”. To elaborate, the submission is the words “incite to cause an offence” should be read to give attributes and characteristics of criminality to the word “defamation”. It must have the potentiality to lead to breach of peace and public order. It has been urged that the intention of clause (2) of Article 19 is to include a public law remedy in respect of a grievance that has a collective impact but not as an actionable claim under the common law by an individual and, therefore, the word “defamation” has to be understood in that context, as the associate words are “incitement to an offence” would so warrant. Mr Rao, learned Senior Counsel, astutely canvassed that unless the word “defamation” is understood in this manner applying the principle of noscitur a sociis, the cherished and natural right of freedom of speech and expression which has been recognised under Article 19(1)(a) would be absolutely at peril. Mr Narasimha, learned ASG would contend that the said rule of construction would not be applicable to understand the meaning of the term “defamation”. Be it noted, while construing the provision of Article 19(2), it is the duty of the Court to keep in view the exalted spirit, essential aspects, the value and philosophy of the Constitution. There is no doubt that the principle of noscitur a sociis can be taken recourse to in order to understand and interpret the Constitution but while applying the principle, one has applicability of the said principle. 71. In State of Bombay v. Hospital Mazdoor Sabha [State of Bombay v. Hospital Mazdoor Sabha, AIR 1960 SC 610 : (1960) 2 SCR 866] , it has been held that it must be borne in mind that noscitur a sociis is merely a rule of construction and it cannot prevail in cases where it is clear that wider words have been deliberately used in order to make the scope of the defined word correspondingly wider. It is only where the intention of the legislature in associating wider words with words of narrower significance is doubtful, or otherwise not clear that the said rule of construction can be usefully applied. It can also be applied where the meaning of the words of wider import is doubtful; but, where the object of the legislature in using wider words is clear and free of ambiguity, the rule of construction in question cannot be pressed into service. 72. In Bank of India v. Vijay Transport [Bank of India v. Vijay Transport, 1988 Supp SCC 47] , the Court was dealing with the contention that a literal interpretation is not always the only interpretation of a provision in a statute and the court has to look at the setting in which the words are used and the circumstances in which the law came to be passed to decide whether there is something implicit behind the words actually used which would control the literal meaning of the words used. For the said purpose, reliance was placed on R.L. Arora v. State of U.P. [R.L. Arora v. State of U.P., (1964) 6 SCR 784 : AIR 1964 SC 1230] Dealing with the said aspect, the Court has observed thus: (Vijay Transport case [Bank of India v. Vijay Transport, 1988 Supp SCC 47], SCC ‘11. … It may be that in interpreting the words of the provision of a statute, the setting in which consideration, but that does not mean that even though the words which are to be interpreted convey a clear meaning, still a different interpretation or meaning should be given to them because of the setting. In other words, while the setting of the words may sometimes be necessary for the interpretation of the words of the statute, but that has not been ruled by this Court to be the only and the surest method 73. The Constitution Bench, in Godfrey Phillips (India) Ltd. v. State of U.P. [Godfrey Phillips (India) Ltd. v. State of U.P., (2005) 2 SCC 515], while expressing its opinion on the aforesaid rule of construction, opined: (SCC pp. 550 & 551, paras 81 ‘81. We are aware that the maxim of noscitur a sociis may be a treacherous one unless the “societas” to which the “socii” belong, are known. The risk may be present when there is no other factor except contiguity to suggest the “societas”. But where there is, as here, a term ambiguity, the addition of the words such as “including” is sufficiently indicative of “includes” in the present context indicates a commonality or shared features or attributes of the including word with the included. principles of interpretation, we would hold that the word “luxuries” in Entry 62 of List II means the activity of enjoyment of or indulgence in that which is costly or which is generally recognised as being beyond the necessary requirements of an average member of society and not articles 74. At this juncture, we may note that in Ahmedabad Private Primary Teachers’ Assn. v. Administrative Assn. v. Administrative Officer, (2004) 1 SCC 755 : 2004 SCC (L&S) 306], it has been stated that noscitur a sociis is a legitimate rule of construction to construe the words in an Act of Parliament with reference to the words found in immediate connection with them. In this regard, we may refer to a passage from Justice G.P. Singh, Principles of where the learned author has referred to the lucid explanation given by Gajendragadkar, J. We think it ‘It is a rule wider than the rule of ejusdem generis; rather the latter rule is only an application of the former. The rule has been lucidly explained by Gajendragadkar, J. in the [Maxwell, Interpretation of Statutes (11th Edn., words which are susceptible of analogous understood to be used in their cognate sense. They take as it were their colour from each other, that is, the more general is restricted to a The learned author on further discussion has expressed the view that meaning of a word is to be judged from the company it keeps i.e. connection with them. It applies when two or meanings are coupled together, to be read and understood in their cognate sense. [G.P. Singh, Principles of Statutory Interpretation (8th Edn.) 379.] Noscitur a sociis is merely a rule of construction and cannot prevail where it is clear that wider and diverse etymology is intentionally and deliberately used in the provision. It is only when and where the intention of the legislature narrowest significance is doubtful or otherwise not clear, that the rule of noscitur a sociis is useful.” 86. It is clear from a reading of these judgments that noscitur a sociis being a mere rule of construction cannot be applied in the present case as it is clear that wider words have been deliberately used in a residuary provision, to make the scope of the definition of “financial debt” subsume matters which are not found in the other sub-clauses of Section 5(8). This contention must also, therefore, be rejected.” 22. A reading of these judgments would show that ejusdem generis and noscitur a sociis, being rules as to the construction of statutes, cannot be exalted to nullify the plain meaning of words used in a statute if they are designedly used in a wide sense. Importantly, where a residuary phrase is used as a catch-all expression to take within its scope what may reasonably be comprehended by a provision, regard being had to its object and setting, noscitur a sociis cannot be used to colour an otherwise wide expression so as to whittle it down and stultify the object of a statutory provision. 23. This then brings us to the object sought to be achieved by Section 14 of the IBC. The Report of the Insolvency Law Committee of February, 2020 throws some light on Section 14. Paragraphs 8.2 and 8.11 thereof “8.2. The moratorium under Section 14 is intended to keep the corporate debtor’s assets together during the insolvency resolution process and facilitating orderly completion of the processes envisaged during the insolvency resolution process and ensuring that the company may continue as a going concern while the creditors take a view on resolution of default. Keeping the corporate debtor running as a going concern during the CIRP helps in achieving resolution as a going concern as well, which is likely to maximize value for all stakeholders. In other jurisdictions too, a moratorium may be put in place on the advent of formal insolvency proceedings, including liquidation and reorganization proceedings. The UNCITRAL Guide notes that a moratorium is critical during reorganization proceedings since it facilitates the continued operation of the business and allows the debtor a breathing space to organize its affairs, time for preparation and approval of a reorganization plan and for other steps such as shedding unprofitable activities and onerous contracts, where appropriate.” “8.11. Further, the purpose of the moratorium is to keep the assets of the debtor together for successful insolvency resolution, and it does not bar all actions, especially where countervailing public policy concerns are involved. For instance, criminal proceedings are not considered to be barred by the moratorium, since they do not constitute “money claims or recovery” proceedings. In this regard, the Committee also noted that in some jurisdictions, laws allow regulatory claims, such as those which are not designed to collect money for the estate but to protect vital and urgent public interests, restraining activities causing environmental damage or activities that are detrimental to public health and safety to be continued during the moratorium period.” It can be seen that paragraph 8.11 refers to the very judgment under appeal before us, and cannot therefore be said to throw any light on the correct position in law which has only to be finally settled by this Court. However, paragraph 8.2 is important in that the object of a moratorium provision such as Section 14 is to see that there is no depletion of a corporate debtor’s assets during the insolvency resolution process so that it can be kept running as a going concern during this time, thus maximising value for all stakeholders. The idea is that it facilitates the continued operation of the business of the corporate debtor to allow it breathing space to organise its affairs so that a new management may ultimately take over and bring the corporate debtor out of financial sickness, thus benefitting all stakeholders, which would include workmen of the corporate debtor. Also, the judgment of this Court in Swiss Ribbons (P) Ltd. v. Union of India, (2019) 4 SCC 17 states the raison d’être for Section 14 in paragraph 28 as follows: “28. It can thus be seen that the primary focus of the legislation is to ensure revival and continuation of the corporate debtor by protecting the corporate debtor from its own management and from a corporate death by liquidation. The Code is thus a beneficial legislation which puts the corporate debtor back on its feet, not being a mere recovery legislation for creditors. The interests of the corporate debtor have, therefore, been bifurcated and separated from that of its promoters/those who are in management. Thus, the resolution process is not adversarial to the corporate debtor but, in fact, protective of its interests. The moratorium imposed by Section 14 is in the interest of the corporate debtor itself, thereby preserving the assets of the corporate debtor during the resolution process. The timelines within which the resolution process is to take place again protects the corporate debtor's assets from further dilution, and also protects all its creditors and workers by seeing that the resolution process goes through as fast as possible so that another management can, through its entrepreneurial skills, resuscitate the corporate debtor to achieve all these ends.” 24. It can thus be seen that regard being had to the object sought to be achieved by the IBC in imposing this moratorium, a quasi-criminal proceeding which would result in the assets of the corporate debtor being depleted as a result of having to pay compensation which can amount to twice the amount of the cheque that has bounced would directly impact the corporate insolvency resolution process in the same manner as the institution, continuation, or execution of a decree in such suit in a civil court for the amount of debt or other liability. Judged from the point of view of this objective, it is impossible to discern any difference between the impact of a suit and a Section 138 proceeding, insofar as the corporate debtor is concerned, on its getting the necessary breathing space to get back on its feet during the corporate insolvency resolution process. Given this fact, it is difficult to accept that noscitur a sociis or ejusdem generis should be used to cut down the width of the expression “proceedings” so as to make such proceedings analogous to civil suits. 25. Viewed from another point of view, clause (b) of Section 14(1) also makes it clear that during the moratorium period, any transfer, encumbrance, alienation, or disposal by the corporate debtor of any of its assets or any legal right or beneficial interest therein being also interdicted, yet a liability in the form of compensation payable under Section 138 would somehow escape the dragnet of Section 14(1). While Section 14(1)(a) refers to monetary liabilities of the corporate debtor, Section 14(1)(b) refers to the corporate debtor’s assets, and together, these two clauses form a scheme which shields the corporate debtor from pecuniary attacks against it in the moratorium period so that the corporate debtor gets breathing space to continue as a going concern in order to ultimately rehabilitate itself. Any crack in this shield is bound to have adverse consequences, given the object of Section 14, and cannot, by any process of interpretation, be allowed to occur. 26. Even otherwise, when some of the other provisions as to moratorium are seen in the context of individuals and firms, the provisions of Section 14 become even clearer. Thus, in Part III of the IBC, which deals with insolvency resolution and bankruptcy for individuals and partnership firms, Section 81, which occurs in Chapter II thereof, entitled “Fresh Start Process”, an interim moratorium is imposed thus: “81. Application for fresh start order.—(1) When an application is filed under Section 80 by a debtor, an interim- moratorium shall commence on the date of filing of said application in relation to all the debts and shall cease to have effect on the date of admission or rejection of such application, as the case may be. (2) During the interim-moratorium period,— (i) any legal action or legal proceeding pending in respect of any of his debts shall be deemed to (ii) no creditor shall initiate any legal action or proceedings in respect of such debt. (3) The application under Section 80 shall be in such form and manner and accompanied by such fee, as may be prescribed. (4) The application under sub-section (3) shall contain the following information supported by an affidavit, namely— (a) a list of all debts owed by the debtor as on the date of the said application along with details relating to the amount of each debt, interest payable thereon and the names of the creditors to whom each debt (b) the interest payable on the debts and the rate (c) a list of security held in respect of any of the debts; (d) the financial information of the debtor and his immediate family up to two years prior to the date of (e) the particulars of the debtor's personal details, as (f) the reasons for making the application; (g) the particulars of any legal proceedings which, to the debtor's knowledge has been commenced (h) the confirmation that no previous fresh start order under this Chapter has been made in respect of the qualifying debts of the debtor in the preceding twelve months of the date of the application.” Similarly, in Section 85, which also occurs in Chapter II in Part III of the “85. Effect of admission of application.—(1) On the date of admission of the application, the moratorium period shall commence in respect of all the debts. (a) any pending legal action or legal proceeding in respect of any debt shall be deemed to have been (b) subject to the provisions of Section 86, the creditors shall not initiate any legal action or proceedings in respect of any debt. (3) During the moratorium period, the debtor shall— (a) not act as a director of any company, or directly or indirectly take part in or be concerned in the (b) not dispose of or alienate any of his assets; (c) inform his business partners that he is undergoing (d) be required to inform prior to entering into any financial or commercial transaction of such value as may be notified by the Central Government, either individually or jointly, that he is undergoing a (e) disclose the name under which he enters into business transactions, if it is different from the name in the application admitted under Section (f) not travel outside India except with the permission of the Adjudicating Authority. (4) The moratorium ceases to have effect at the end of the period of one hundred and eighty days beginning with the date of admission unless the order admitting the application is revoked under sub-section (2) of Section 91.” 27. When the language of Section 14 and Section 85 are contrasted, it becomes clear that though the language of Section 85 is only in respect of debts, the moratorium contained in Section 14 is not subject specific. The only light thrown on the subject is by the exception provision contained in Section 14(3)(a) which is that “transactions” are the subject matter of Section 14(1). “Transaction” is, as we have seen, a much wider expression than “debt”, and subsumes it. Also, the expression “proceedings” used by the legislature in Section 14(1)(a) is not trammelled by the word “legal” as a prefix that is contained in the moratorium provisions qua individuals and firms. Likewise, the provisions of Section 96 and Section 101 are moratorium provisions in Chapter III of Part III dealing with the insolvency resolution process of individuals and firms, the same expression, namely, “debts” is used as is used in Section 85. “96. Interim-moratorium.—(1) When an application is filed (a) an interim-moratorium shall commence on the date of the application in relation to all the debts and shall cease to have effect on the date of admission (b) during the interim-moratorium period— (i) any legal action or proceeding pending in respect (ii) the creditors of the debtor shall not initiate any legal action or proceedings in respect of any debt. (2) Where the application has been made in relation to a firm, the interim-moratorium under sub-section (1) shall operate against all the partners of the firm as on the date of the application. (3) The provisions of sub-section (1) shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator.” “101. Moratorium.—(1) When the application is admitted under Section 100, a moratorium shall commence in relation to all the debts and shall cease to have effect at the end of the period of one hundred and eighty days beginning with the date of admission of the application or on the date the Adjudicating Authority passes an order on the repayment plan under Section 114, whichever is earlier. (a) any pending legal action or proceeding in respect of any debt shall be deemed to have been stayed; (b) the creditors shall not initiate any legal action or legal proceedings in respect of any debt; and (c) the debtor shall not transfer, alienate, encumber or dispose of any of his assets or his legal rights or (3) Where an order admitting the application under Section 96 has been made in relation to a firm, the moratorium under sub-section (1) shall operate against all the partners of the firm. (4) The provisions of this Section shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator.” A legal action or proceeding in respect of any debt would, on its plain language, include a Section 138 proceeding. This is for the reason that a Section 138 proceeding would be a legal proceeding “in respect of” a debt. “In respect of” is a phrase which is wide and includes anything done directly or indirectly – see Macquarie Bank Ltd. v. Shilpi Cable Technologies Ltd., (2018) 2 SCC 674 (at page 709) and Giriraj Garg v. Coal India Ltd., (2019) 5 SCC 192 (at pages 202-203). This, coupled with the fact that the Section is not limited to ‘recovery’ of any debt, would indicate that any legal proceeding even indirectly relatable to recovery of any debt would be covered. 28. When the language of these Sections is juxtaposed against the language of Section 14, it is clear that the width of Section 14 is even greater, given that Section 14 declares a moratorium prohibiting what is mentioned in clauses (a) to (d) thereof in respect of transactions entered into by the corporate debtor, inclusive of transactions relating to debts, as is contained in Sections 81, 85, 96, and 101. Also, Section 14(1)(d) is conspicuous by its absence in any of these Sections. Thus, where individuals or firms are concerned, the recovery of any property by an owner or lessor, where such property is occupied by or in possession of the individual or firm can be recovered during the moratorium period, unlike the property of a corporate debtor. For all these reasons, therefore, given the object and context of Section 14, the expression “proceedings” cannot be cut down by any rule of construction and must be given a fair meaning consonant with the object and context. It is conceded before us that criminal proceedings which are not directly related to transactions evidencing debt or liability of the corporate debtor would be outside the scope of this expression. 29. V. Ramakrishnan (supra) looked at and contrasted Section 14 with Sections 96 and 101 from the point of view of a guarantor to a debt, and “26. We are also of the opinion that Sections 96 and 101, when contrasted with Section 14, would show that Section 14 cannot possibly apply to a personal guarantor. When an application is filed under Part III, an interim-moratorium or a moratorium is applicable in respect of any debt due. First and foremost, this is a separate moratorium, applicable separately in the case of personal guarantors against whom insolvency resolution processes may be initiated under Part III. Secondly, the protection of the moratorium under these Sections is far greater than that of Section 14 in that pending legal proceedings in respect of the debt and not the debtor are stayed. The difference in language between Sections 14 and 101 is for a reason. 26.1. Section 14 refers only to debts due by corporate debtors, who are limited liability companies, and it is clear that in the vast majority of cases, personal guarantees are given by Directors who are in management of the companies. The object of the Code is not to allow such guarantors to escape from an independent and co-extensive liability to pay off the entire outstanding debt, which is why Section 14 is not applied to them. However, insofar as firms and individuals are concerned, guarantees are given in respect of individual debts by persons who have unlimited liability to pay them. And such guarantors may be complete strangers to the debtor — often it could be a personal friend. It is for this reason that the moratorium mentioned in Section 101 would cover such persons, as such moratorium is in relation to the debt and not the debtor.” These observations, when viewed in context, are correct. However, this case is distinguishable in that the difference between these provisions and Section 14 was not examined qua moratorium provisions as a whole in relation to corporate debtors vis-à-vis individuals/firms. 30. Shri Mehta, however, strongly relied upon Section 32A(1) of the IBC, which was introduced by the Insolvency and Bankruptcy Code (Amendment) Act, 2020, to argue that the first proviso to Section 32A(1) would make it clear that “prosecutions” that had been instituted during the corporate insolvency resolution process against a corporate debtor will result in a discharge of the corporate debtor from the prosecution, subject to the other requirements of sub-section (1) having been fulfilled. According to him, therefore, a prosecution of the corporate debtor under Section 138/141 of the Negotiable Instruments Act can be instituted during the corporate insolvency resolution process, making it clear that such prosecutions are, therefore, outside the ken of the moratorium provisions contained in Section 14 of the IBC. Section 32A(1) of the IBC “32A. Liability for prior offences, etc.—(1) Notwithstanding anything to the contrary contained in this Code or any other law for the time being in force, the liability of a corporate debtor for an offence committed prior to the commencement of the corporate insolvency resolution process shall cease, and the corporate debtor shall not be prosecuted for such an offence from the date the resolution plan has been approved by the Adjudicating Authority under Section 31, if the resolution plan results in the change in the management or control of the corporate debtor to a person who was not— (a) a promoter or in the management or control of the corporate debtor or a related party of such a person; or (b) a person with regard to whom the relevant investigating authority has, on the basis of material in its possession, reason to believe that he had abetted or conspired for the commission of the offence, and has submitted or filed a report or a complaint to the relevant statutory Provided that if a prosecution had been instituted during the corporate insolvency resolution process against such corporate debtor, it shall stand discharged from the date of approval of the resolution plan subject to requirements of this Provided further that every person who was a “designated partner” as defined in clause (j) of Section 2 of the Limited Liability Partnership Act, 2008 (6 of 2009), or an “officer who is in default”, as defined in clause (60) of Section 2 of the Companies Act, 2013 (18 of 2013), or was in any manner incharge of, or responsible to the corporate debtor for the conduct of its business or associated with the corporate debtor in any manner and who was directly or indirectly involved in the commission of such offence as per the report submitted or complaint filed by the investigating authority, shall continue to be liable to be prosecuted and punished for such an offence committed by the corporate debtor notwithstanding that the corporate debtor's liability has ceased under this sub-section. 31. The raison d’être for the enactment of Section 32A has been stated by the Report of the Insolvency Law Committee of February, 2020, which 17.1. Section 17 of the Code provides that on commencement of the CIRP, the powers of management of the corporate debtor vest with the interim resolution professional. Further, the powers of the Board of Directors or partners of the corporate debtor stand suspended, and are to be exercised by the interim resolution professional. Thereafter, Section 29A, read with Section 35(1)(f), places restrictions on related parties of the corporate debtor from proposing a resolution plan and purchasing the property of the corporate debtor in the CIRP and liquidation process, respectively. Thus, in most cases, the provisions of the Code effectuate a change in control of the corporate debtor that results in a clean break of the corporate debtor from its erstwhile management. However, the legal form of the corporate debtor continues in the CIRP, and may be preserved in the resolution plan. Additionally, while the property of the corporate debtor may also change hands upon resolution or liquidation, such property also continues to exist, either as property of the corporate debtor, or in the hands of the purchaser. 17.2. However, even after commencement of CIRP or after its successful resolution or liquidation, the corporate debtor, along with its property, would be susceptible to investigations or proceedings related to criminal offences committed by it prior to the commencement of a CIRP, leading to the imposition of certain liabilities and restrictions on the corporate debtor and its properties even after they were lawfully acquired by a resolution applicant or a successful bidder, respectively. Liability where a Resolution Plan has been Approved 17.3. It was brought to the Committee that this had created apprehension amongst potential resolution applicants, who did not want to take on the liability for any offences committed prior to commencement of CIRP. In one case, JSW Steel had specifically sought certain reliefs and concessions, within an annexure to the resolution plan it had submitted for approval of the Adjudicating Authority. Without relief from imposition of the such liability, the Committee noted that in the long run, potential resolution applicants could be disincentivised from proposing a resolution plan. The Committee was also concerned that resolution plans could be priced lower on an average, even where the corporate debtor did not commit any offence and was not subject to investigation, due to adverse selection by resolution applicants who might be apprehensive that they might be held liable for offences that they have not been able to detect due to information asymmetry. Thus, the threat of liability falling on bona fide persons who acquire the legal entity, could substantially lower the chances of its successful takeover by potential resolution applicants. 17.4. This could have substantially hampered the Code’s goal of value maximisation, and lowered recoveries to creditors, including financial institutions who take recourse to the Code for resolution of the NPAs on their balance sheet. At the same time, the Committee was also conscious that authorities are duty bound to penalise the commission of any offence, especially in cases involving substantial public interest. Thus, two competing concerns need to be balanced. 17.6. Given this, the Committee felt that a distinction must be drawn between the corporate debtor which may have committed offences under the control of its previous management, prior to the CIRP, and the corporate debtor that is resolved, and taken over by an unconnected resolution applicant. While the corporate debtor’s actions prior to the commencement of the CIRP must be investigated and penalised, the liability must be affixed only upon those who were responsible for the corporate debtor’s actions in this period. However, the new management of the corporate debtor, which has nothing to do with such past offences, should not be penalised for the actions of the erstwhile management of the corporate debtor, unless they themselves were involved in the commission of the offence, or were related parties, promoters or other persons in management and control of the corporate debtor at the time of or any time following the commission of the offence, and could acquire the corporate debtor, notwithstanding the prohibition under 17.7. Thus, the Committee agreed that a new Section should be inserted to provide that where the corporate debtor is successfully resolved, it should not be held liable for any offence committed prior to the commencement of the CIRP, unless the successful resolution applicant was also involved in the commission of the offence, or was a related party, promoter or other person in management and control of the corporate debtor at the time of or any time following the commission of the offence. 17.8. Notwithstanding this, those persons who were responsible to the corporate debtor for the conduct of its business at the time of the commission of such offence, should continue to be liable for such an offence, vicariously or otherwise, regardless of the fact that the corporate debtor’s liability has ceased.” 32. This Court, in Manish Kumar v. Union of India, 2021 SCC OnLine SC 30, upheld the constitutional validity of this provision. This Court “280. We are of the clear view that no case whatsoever is made out to seek invalidation of Section 32A. The boundaries of this Court's jurisdiction are clear. The wisdom of the legislation is not open to judicial review. Having regard to the object of the Code, the experience of the working of the code, the interests of all stakeholders including most importantly the imperative need to attract resolution applicants who would not shy away from offering reasonable and fair value as part of the resolution plan if the legislature thought that immunity be granted to the corporate debtor as also its property, it hardly furnishes a ground for this this Court to interfere. The provision is carefully thought out. It is not as if the wrongdoers are allowed to get away. They remain liable. The extinguishment of the criminal liability of the corporate debtor is apparently important to the new management to make a clean break with the past and start on a clean slate. We must also not overlook the principle that the impugned provision is part of an economic measure. The reverence courts justifiably hold such laws in cannot but be applicable in the instant case as well. The provision deals with reference to offences committed prior to the commencement of the CIRP. With the admission of the application the management of the corporate debtor passes into the hands of the Interim Resolution Professional and thereafter into the hands of the Resolution Professional subject undoubtedly to the control by the Committee of Creditors. As far as protection afforded to the property is concerned there is clearly a rationale behind it. Having regard to the object of the statute we hardly see any manifest arbitrariness in the provision.” 33. Section 32A cannot possibly be said to throw any light on the true interpretation of Section 14(1)(a) as the reason for introducing Section 32A had nothing whatsoever to do with any moratorium provision. At the heart of the Section is the extinguishment of criminal liability of the corporate debtor, from the date the resolution plan has been approved by the Adjudicating Authority, so that the new management may make a clean break with the past and start on a clean slate. A moratorium provision, on the other hand, does not extinguish any liability, civil or criminal, but only casts a shadow on proceedings already initiated and on proceedings to be initiated, which shadow is lifted when the moratorium period comes to an end. Also, Section 32A(1) operates only after the moratorium comes to an end. At the heart of Section 32A is the IBC’s goal of value maximisation and the need to obviate lower recoveries to creditors as a result of the corporate debtor continuing to be exposed to criminal liability. Unfortunately, the Section is inelegantly drafted. The second proviso to Section 32A(1) speaks of persons who are in any manner in charge of, or responsible to the corporate debtor for the conduct of its business or associated with the corporate debtor and who are, directly or indirectly, involved in the commission of “such offence”, i.e., the offence referred to in sub-section (1), “as per the report submitted or complaint filed by the investigating authority …”. The report submitted here refers to a police report under Section 173 of the CrPC, and complaints filed by investigating authorities under special Acts, as opposed to private complaints. If the language of the second proviso is taken to interpret the language of Section 32A(1) in that the “offence committed” under Section 32A(1) would not include offences based upon complaints under Section 2(d) of the CrPC, the width of the language would be cut down and the object of Section 32A(1) would not be achieved as all prosecutions emanating from private complaints would be excluded. Obviously, Section 32A(1) cannot be read in this fashion and clearly incudes the liability of the corporate debtor for all offences committed prior to the commencement of the corporate insolvency resolution process. Doubtless, a Section 138 proceeding would be included, and would, after the moratorium period comes to an end with a resolution plan by a new management being approved by the Adjudicating Authority, cease to be an offence qua the corporate debtor. 34. A section which has been introduced by an amendment into an Act with its focus on cesser of liability for offences committed by the corporate debtor prior to the commencement of the corporate insolvency resolution process cannot be so construed so as to limit, by a sidewind as it were, the moratorium provision contained in Section 14, with which it is not at all concerned. If the first proviso to Section 32A(1) is read in the manner suggested by Shri Mehta, it will impact Section 14 by taking out of its ken Section 138/141 proceedings, which is not the object of Section 32A(1) at all. Assuming, therefore, that there is a clash between Section 14 of the IBC and the first proviso of Section 32A(1), this clash is best resolved by applying the doctrine of harmonious construction so that the objects of both the provisions get subserved in the process, without damaging or limiting one provision at the expense of the other. If, therefore, the expression “prosecution” in the first proviso of Section 32A(1) refers to criminal proceedings properly so-called either through the medium of a First Information Report or complaint filed by an investigating authority or complaint and not to quasi-criminal proceedings that are instituted under Sections 138/141 of the Negotiable Instruments Act against the corporate debtor, the object of Section 14(1) of the IBC gets subserved, as does the object of Section 32A, which does away with criminal prosecutions in all cases against the corporate debtor, thus absolving the corporate debtor from the same after a new management comes in. 35. This brings us to the nature of proceedings under Chapter XVII of the Negotiable Instruments Act. Sections 138 to 142 of the Negotiable Instruments Act were added by Chapter XVII by an Amendment Act of “138. Dishonour of cheque for insufficiency, etc., of funds in the account.—Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this Section shall apply (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving cheque, within thirty days of the receipt of information by him from the bank regarding the (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice. Explanation.—For the purposes of this Section, “debt or other liability” means a legally enforceable debt or other liability.” 36. Section 138 contains within it the ingredients of the offence made out. The deeming provision is important in that the legislature is cognizant of the fact that what is otherwise a civil liability is now also deemed to be an offence, since this liability is made punishable by law. It is important to note that the transaction spoken of is a commercial transaction between two parties which involves payment of money for a debt or liability. The explanation to Section 138 makes it clear that such debt or other liability means a legally enforceable debt or other liability. Thus, a debt or other liability barred by the law of limitation would be outside the scope of Section 138. This, coupled with fine that may extend to twice the amount of the cheque that is payable as compensation to the aggrieved party to cover both the amount of the cheque and the interest and costs thereupon, would show that it is really a hybrid provision to enforce payment under a bounced cheque if it is otherwise enforceable in civil law. Further, though the ingredients of the offence are contained in the first part of Section 138 when the cheque is returned by the bank unpaid for the reasons given in the Section, the proviso gives an opportunity to the drawer of the cheque, stating that the drawer must fail to make payment of the amount within 15 days of the receipt of a notice, again making it clear that the real object of the provision is not to penalise the wrongdoer for an offence that is already made out, but to compensate the victim. 37. Likewise, under Section 139, a presumption is raised that the holder of a cheque received the cheque for the discharge, in whole or in part, of any debt or other liability. To rebut this presumption, facts must be adduced which, on a preponderance of probability (not beyond reasonable doubt as in the case of criminal offences), must then be proved. Section 140 is also important, in that it shall not be a defence in a prosecution for an offence under Section 138 that the drawer had no reason to believe when he issued the cheque that the cheque may be dishonoured on presentment for the reasons stated in that Section, thus making it clear that strict liability will attach, mens rea being no ingredient of the offence. Section 141 then makes Directors and other persons statutorily liable, provided the ingredients of the section are met. Interestingly, for the purposes of this Section, explanation (a) defines “company” as meaning any body corporate and includes a firm or other association of individuals. 38. We have already seen how the language of Sections 96 and 101 would include a Section 138/141 proceeding against a firm so that the moratorium stated therein would apply to such proceedings. If Shri Mehta’s arguments were to be accepted, under the same Section, namely, Section 141, two different results would ensue – so far as bodies corporate, which include limited liability partnerships, are concerned, the moratorium provision contained in Section 14 of the IBC would not apply, but so far as a partnership firm is concerned, being covered by Sections 96 and 101 of the IBC, a Section 138/141 proceeding would be stopped in its tracks by virtue of the moratorium imposed by these Sections. Thus, under Section 141(1), whereas a Section 138 proceeding against a corporate body would continue after initiation of the corporate insolvency resolution process, yet, the same proceeding against a firm, being interdicted by Sections 96 and 101, would not so continue. This startling result is one of the consequences of accepting the argument of Shri Mehta, which again leads to the position that inelegant drafting alone cannot lead to such startling results, the object of Sections 14 and 96 and 101 being the same, namely, to see that during the insolvency resolution process for corporate persons/individuals and firms, the corporate body/firm/individual should be given breathing space to recuperate for a successful resolution of its debts – in the case of a corporate debtor, through a new management coming in; and in the case of individuals and firms, through resolution plans which are accepted by a committee of creditors, by which the debtor is given breathing space in which to pay back his/its debts, which would result in creditors getting more than they would in a bankruptcy proceeding against an individual or a firm. 39. Section 142 is important and is set out hereunder: “142. Cognizance of offences.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (a) no court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the (b) such complaint is made within one month of the date on which the cause of action arises under Provided that the cognizance of a complaint may be taken by the court after the prescribed period, if the complainant satisfies the court that he had sufficient cause for not making a complaint within such period. (c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under Section 138. (2) The offence under Section 138 shall be inquired into and tried only by a court within whose local jurisdiction,— (a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains (b) if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated. Explanation.—For the purposes of clause (a), where a cheque is delivered for collection at any branch of the bank of the payee or holder in due course, then, the cheque shall be deemed to have been delivered to the branch of the bank in which the payee or holder in due course, as the case may be, maintains the account.” 40. A cursory reading of Section 142 will again make it clear that the procedure under the CrPC has been departed from. First and foremost, no court is to take cognizance of an offence punishable under Section 138 except on a complaint made in writing by the payee or the holder in due course of the cheque – the victim. Further, the language of Section 142(1) (b) would again show the hybrid nature of these provisions inasmuch as a complaint must be made within one month of the date on which the “cause of action” under clause (c) of the proviso to Section 138 arises. The expression “cause of action” is a foreigner to criminal jurisprudence, and would apply only in civil cases to recover money. Chapter XIII of the CrPC, consisting of Sections 177 to 189, is a chapter dealing with the jurisdiction of the criminal courts in inquiries and trials. When the jurisdiction of a criminal court is spoken of by these Sections, the expression “cause of action” is conspicuous by its absence. 41. By an Amendment Act of 2002, various other sections were added to this Chapter. Thus, under Section 143, it is lawful for a Magistrate to pass a sentence of imprisonment for a term not exceeding one year and a fine exceeding INR 5,000/- summarily. This provision is again an important pointer to the fact that the payment of compensation is at the heart of the provision in that a fine exceeding INR 5000/-, the sky being the limit, can be imposed by way of a summary trial which, after application of Section 357 of the CrPC, results in compensating the victim up to twice the amount of the bounced cheque. Under Section 144, the mode of service of summons is done as in civil cases, eschewing the mode contained in Sections 62 to 64 of the CrPC. Likewise, under Section 145, evidence is to be given by the complainant on affidavit, as it is given in civil proceedings, notwithstanding anything contained in the CrPC. Most importantly, by Section 147, offences under this Act are compoundable without any intervention of the court, as is required by Section 320(2) of the CrPC. 42. By another amendment made in 2018, the hybrid nature of these provisions gets a further tilt towards a civil proceeding, by the power to direct interim compensation under Sections 143A and 148 which are set “143-A. Power to direct interim compensation.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the Court trying an offence under Section 138 may order the drawer of the cheque to pay interim compensation to the complainant— (a) in a summary trial or a summons case, where he pleads not guilty to the accusation made in the (b) in any other case, upon framing of charge. (2) The interim compensation under sub-section (1) shall not exceed twenty per cent of the amount of the cheque. (3) The interim compensation shall be paid within sixty days from the date of the order under sub-section (1), or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the drawer of the cheque. (4) If the drawer of the cheque is acquitted, the Court shall direct the complainant to repay to the drawer the amount of interim compensation, with interest at the bank rate as published by the Reserve Bank of India, prevalent at the beginning of the relevant financial year, within sixty days from the date of the order, or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the complainant. (5) The interim compensation payable under this Section may be recovered as if it were a fine under Section 421 of the Code of Criminal Procedure, 1973 (2 of 1974). (6) The amount of fine imposed under Section 138 or the amount of compensation awarded under Section 357 of the Code of Criminal Procedure, 1973 (2 of 1974), shall be reduced by the amount paid or recovered as interim compensation under this Section.” “148. Power of Appellate Court to order payment pending appeal against conviction.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), in an appeal by the drawer against conviction under Section 138, the Appellate Court may order the appellant to deposit such sum which shall be a minimum of twenty per cent of the fine or compensation awarded by the trial Court: Provided that the amount payable under this sub-section shall be in addition to any interim compensation paid by the appellant under Section 143-A. (2) The amount referred to in sub-section (1) shall be deposited within sixty days from the date of the order, or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the appellant. (3) The Appellate Court may direct the release of the amount deposited by the appellant to the complainant at any time Provided that if the appellant is acquitted, the Court shall direct the complainant to repay to the appellant the amount so released, with interest at the bank rate as published by the Reserve Bank of India, prevalent at the beginning of the relevant financial year, within sixty days from the date of the order, or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the complainant.” 43. With this analysis of Chapter XVII, let us look at some of the decided cases. In CIT v. Ishwarlal Bhagwandas, (1966) 1 SCR 190, this Court distinguished between civil proceedings and criminal proceedings in the context of Article 132 of the Constitution thus: “… The expression “civil proceeding” is not defined in the Constitution, nor in the General Clauses Act. The expression in our judgment covers all proceedings in which a party asserts the existence of a civil right conferred by the civil law or by statute, and claims relief for breach thereof. A criminal proceeding on the other hand is ordinarily one in which if carried to its conclusion it may result in the imposition of sentences such as death, imprisonment, fine or forfeiture of property. It also includes proceedings in which in the larger interest of the State, orders to prevent apprehended breach of the peace, orders to bind down persons who are a danger to the maintenance of peace and order, or orders aimed at preventing vagrancy are contemplated to be passed. But the whole area of proceedings, which reach the High Courts is not exhausted by classifying the proceedings as civil and criminal. There are certain proceedings which may be regarded as neither civil nor criminal. For instance, proceeding for contempt of court, and for exercise of disciplinary jurisdiction against lawyers or other professionals, such as Chartered Accountants may not fall within the classification of proceedings, civil or criminal. But there is no warrant for the view that from the category of civil proceedings, it was intended to exclude proceedings relating to or which seek relief against enforcement of taxation laws of the State. The primary object of a taxation statute is to collect revenue for the governance of the State or for providing specific services and such laws directly affect the civil rights of the tax-payer. If a person is called upon to pay tax which the State is not competent to levy, or which is not imposed in accordance with the law which permits imposition of the tax, or in the levy, assessment and collection of which rights of the tax-payer are infringed in a manner not warranted by the statute, a proceeding to obtain relief whether it is from the tribunal set up by the taxing statute, or from the civil court would be regarded as a civil proceeding. The character of the proceeding, in our judgment, depends not upon the nature of the tribunal which is invested with authority to grant relief, but upon the nature of the right violated and the appropriate relief which may be claimed. A civil proceeding is, therefore, one in which a person seeks to enforce by appropriate relief the alleged infringement of his civil rights against another person or the State, and which if the claim is proved would result in the declaration express or implied of the right claimed and relief such as payment of debt, damages, compensation, delivery of specific property, enforcement of personal rights, determination of status etc.” “A large number of cases have arisen before the High Courts in India in which conflicting views about the meaning of the expression “civil proceeding” were pressed. In some cases it was held that the expression “civil proceeding” excludes a proceeding instituted in the High Court for the issue of a writ whatever may be the nature of the right infringed and the relief claimed in other cases it has been held that a proceeding resulting from an application for a writ under Article 226 of the Constitution may in certain cases be deemed to be a “civil proceeding”, if the claim made, the right infringed and the relief sought warrant that inference: in still another set of cases it has been held that even if a proceeding commenced by a petition for a writ be generally categorised as a civil proceeding, where the jurisdiction which the High Court exercises relates to revenue, the proceeding is not civil. A perusal of the reasons given in the cases prompt the following observations. There are two preliminary conditions to the exercise of the power to grant certificate: (a) there must be a judgment, decree or final order, and that judgment, decree or final order must be made in a civil proceeding. An advisory opinion in a tax reference may not be appealed from with certificate under Article 133 because the opinion is not a judgment, decree or final order, and (b) a proceeding does not cease to be civil, when relief is claimed for enforcement of civil rights merely because the proceeding is not tried as a civil suit. In a large majority of the cases in which the jurisdiction of the High Court to certify a case under Article 133(1) was negatived it appears to have been assumed that the expression “other proceeding” used in Article 132 of the Constitution is or includes a proceeding of the nature of a revenue proceeding, and therefore the expression “civil proceeding” in Article 133(1) does not include a revenue proceeding. This assumption for reasons already set out is erroneous.” A perusal of this judgment would show that a civil proceeding is not necessarily a proceeding which begins with the filing of a suit and culminates in execution of a decree. It would include a revenue proceeding as well as a writ petition filed under Article 226 of the Constitution, if the reliefs therein are to enforce rights of a civil nature. Interestingly, criminal proceedings are stated to be proceedings in which the larger interest of the State is concerned. Given these tests, it is clear that a Section 138 proceeding can be said to be a “civil sheep” in a “criminal wolf’s” clothing, as it is the interest of the victim that is sought to be protected, the larger interest of the State being subsumed in the victim alone moving a court in cheque bouncing cases, as has been seen by us in the analysis made hereinabove of Chapter XVII of the Negotiable 44. In Goaplast (P) Ltd. v. Chico Ursula D’Souza, (2003) 3 SCC 232, the object sought to be achieved by Section 138 is succinctly set out in “3. The learned counsel for the appellant has submitted that mere writing of letter to the bank stopping payment of the post-dated cheques does not take the case out of the purview of the Act. He has invited our attention to the object behind the provision contained in Chapter XVII of the Act. For appreciating the issue involved in the present case, it is necessary to refer to the object behind introduction of Chapter XVII containing Sections 138 to 142. This chapter was introduced in the Act by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 (Act 66 of 1988) with the object of inculcating faith in the efficacy of banking operations and giving credibility to negotiable instruments in business transactions and in order to promote efficacy of banking operations. With the policy of liberalisation adopted by the country which brought about increase in international trade and commerce, it became necessary to inculcate faith in banking. World trade is carried through banking operations rather than cash transactions. The amendment was intended to create an atmosphere of faith and reliance on banking system. Therefore, while considering the question of applicability of Section 138 of the Act to a situation presented by the facts of the present case, it is necessary to keep the objects of the legislation in mind. If a party is allowed to use a cheque as a mode of deferred payment and the payee of the cheque on the faith that he will get his payment on the due date accepts such deferred payment by way of cheque, he should not normally suffer on account of non-payment. The faith, which the legislature has desired that such instruments should inspire in commercial transactions would be completely lost if parties are as a matter of routine allowed to interdict payment by issuing instruction to banks to stop payment of cheques. In today's world where use of cash in day-to-day life is almost getting extinct and people are using negotiable instruments in commercial transactions and plastic money for their daily needs as consumers, it is all the more necessary that people's faith in such instruments should be strengthened rather than weakened. Provisions contained in Sections 138 to 142 of the Act are intended to discourage people from not honouring their commitments by way of payment through cheques. It is desirable that the court should lean in favour of an interpretation which serves the object of the statute. The penal provisions contained in Sections 138 to 142 of the Act are intended to ensure that obligations undertaken by issuing cheques as a mode of payment are honoured. A post-dated cheque will lose its credibility and acceptability if its payment can be stopped routinely. A cheque is a well-recognized mode of payment and post-dated cheques are often used in various transactions in daily life. The purpose of a post-dated cheque is to provide some accommodation to the drawer of the cheque. Therefore, it is all the more necessary that the drawer of the cheque should not be allowed to abuse the accommodation given to him by a creditor by way of acceptance of a post-dated cheque. If stoppage of payment of a post-dated cheque is permitted to take the case out of the purview of Section 138 of the Act, it will amount to allowing the party to take advantage of his own wrong.” 45. In Vinay Devanna Nayak v. Ryot Sewa Sahakari Bank Ltd., (2008) 2 SCC 305, a Division Bench of this Court referred to the object of “16. Section 138 of the Act was inserted by the Banking, Public Financial Institutions and Negotiable Instruments Law (Amendment) Act, 1988 (Act 66 of 1988) to regulate financial promises in growing business, trade, commerce and industrial activities of the country and the strict liability to promote greater vigilance in financial matters. The incorporation of the provision is designed to safeguard the faith of the creditor in the drawer of the cheque, which is essential to the economic life of a developing country like India. The provision has been introduced with a view to curb cases of issuing cheques indiscriminately by making stringent provisions and safeguarding interest of creditors. 17. As observed by this Court in Electronics Trade & Technology Development Corpn. Ltd. v. Indian Technologists SCC (Cri) 454] the object of bringing Section 138 in the statute book is to inculcate faith in the efficacy of banking operations and credibility in transacting business on negotiable instruments. The provision is intended to prevent dishonesty on the part of the drawer of negotiable instruments in issuing cheques without sufficient funds or with a view to inducing the payee or holder in due course to act upon it. It thus seeks to promote the efficacy of bank operations and ensures credibility in transacting business through cheques. In such matters, therefore, normally compounding of offences should not be denied. Presumably, Parliament also realised this aspect and inserted Section 147 by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 (Act 55 of 2002). The said Section reads thus: Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under this Act shall be compoundable.” 46. Damodar S. Prabhu v. Sayed Babalal H., (2010) 5 SCC 663 is an important judgment of three Hon’ble Judges of this Court. This judgment dealt, in particular, with the compounding provision contained in Section 147 of the Negotiable Instruments Act. Setting out the provision, the Court “10. At present, we are of course concerned with Section 147 Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under this Act shall be compoundable.” At this point, it would be apt to clarify that in view of the non obstante clause, the compounding of offences under the Negotiable Instruments Act, 1881 is controlled by Section 147 and the scheme contemplated by Section 320 of the Code of Criminal Procedure (hereinafter “CrPC”) will not be applicable in the strict sense since the latter is meant for the specified offences under the Penal Code, 1860. 11. So far as CrPC is concerned, Section 320 deals with offences which are compoundable, either by the parties without the leave of the court or by the parties but only with the leave of the court. Sub-section (1) of Section 320 enumerates the offences which are compoundable without the leave of the court, while sub-section (2) of the said Section specifies the offences which are compoundable with the leave of the court. 12. Section 147 of the Negotiable Instruments Act, 1881 is in the nature of an enabling provision which provides for the compounding of offences prescribed under the same Act, thereby serving as an exception to the general rule incorporated in sub-section (9) of Section 320 CrPC which states that “No offence shall be compounded except as provided by this Section”. A bare reading of this provision would lead us to the inference that offences punishable under laws other than the Penal Code also cannot be compounded. However, since Section 147 was inserted by way of an amendment to a special law, the same will override the effect of Section 320(9) CrPC, especially keeping in mind that Section 147 carries a non obstante clause.” “15. The compounding of the offence at later stages of litigation in cheque bouncing cases has also been held to be permissible in a recent decision of this Court, reported as K.M. Ibrahim v. K.P. Mohammed [(2010) 1 SCC 798 : (2010) 1 SCC (Cri) 921 : (2009) 14 Scale 262] wherein Kabir, “13. As far as the non obstante clause included in Section 147 of the 1881 Act is concerned, the 1881 Act being a special statute, the provisions of Section 147 will have an overriding effect over the provisions of the Code relating to compounding of 14. It is true that the application under Section 147 of the Negotiable Instruments Act was made by the parties after the proceedings had been concluded before the appellate forum. However, Section 147 of the aforesaid Act does not bar the parties from compounding an offence under Section 138 even at the appellate stage of the proceedings. Accordingly, we find no reason to reject the application under Section 147 of the aforesaid Act even in a proceeding under Article 136 of the Constitution.” 16. It is evident that the permissibility of the compounding of an offence is linked to the perceived seriousness of the offence and the nature of the remedy provided. On this point we can refer to the following extracts from an academic commentary [cited from: K.N.C. Pillai, R.V. Kelkar's Criminal “17.2. Compounding of offences.—A crime is essentially a wrong against the society and the State. Therefore any compromise between the accused person and the individual victim of the crime should not absolve the accused from criminal responsibility. However, where the offences are essentially of a private nature and relatively not quite serious, the Code considers it compoundable offences and some others as compoundable only with the permission of the court.” 17. In a recently published commentary, the following observations have been made with regard to the offence punishable under Section 138 of the Act [cited from: Arun Mohan, Some thoughts towards law reforms on the topic of Section 138, Negotiable Instruments Act—Tackling an avalanche of cases (New Delhi: Universal Law Publishing Co. “… Unlike that for other forms of crime, the punishment here (insofar as the complainant is concerned) is not a means of seeking retribution, but is more a means to ensure payment of money. The complainant's interest lies primarily in recovering the money rather than seeing the drawer of the cheque in jail. The threat of jail is only a mode to ensure recovery. As against the accused who is willing to undergo a jail term, there is little available as remedy for the holder of the cheque. If we were to examine the number of complaints filed which were ‘compromised’ or ‘settled’ before the final judgment on one side and the cases which proceeded to judgment and conviction on the other, we will find that the bulk was settled and only a miniscule number continued.” 18. It is quite obvious that with respect to the offence of dishonour of cheques, it is the compensatory aspect of the remedy which should be given priority over the punitive aspect. …” This judgment was followed by a Division Bench of this Court in JIK Industries Ltd. v. Amarlal V. Jumani, (2012) 3 SCC 255, stating: “68. It is clear from a perusal of the aforesaid Statement of Objects and Reasons that offence under the NI Act, which was previously non-compoundable in view of Section 320 sub- section (9) of the Code has now become compoundable. That does not mean that the effect of Section 147 is to obliterate all statutory provisions of Section 320 of the Code relating to the mode and manner of compounding of an offence. Section 147 will only override Section 320(9) of the Code insofar as offence under Section 147 of the NI Act is concerned. This is also the ratio in Damodar [(2010) 5 SCC 663 : (2010) 2 SCC (Civ) 520 : (2010) 2 SCC (Cri) 1328] (see para 12). Therefore, the submission of the learned counsel for the appellant to the contrary cannot be accepted.” The Court then went into the history of compounding in criminal law as “78. Compounding as codified in Section 320 of the Code has a historical background. In common law compounding was considered a misdemeanour. In Kenny’s Outlines of Criminal Law (19th Edn., 1966) the concept of compounding has been “422. Mercy should be shown, not sold.—It is a misdemeanour at common law to ‘compound’ a misdemeanour); i.e. to bargain, for value, to abstain from prosecuting the offender who has committed a crime. You commit this offence if you promise a thief not to prosecute him if only he will return the goods he stole from you; but you may lawfully take them back if you make no such promise. You may show mercy, but must not sell mercy. This offence of compounding is committed by the bare act of agreement; even though the compounder afterwards breaks his agreement and prosecutes the criminal. And inasmuch as the law permits not merely the person injured by a crime, but also all other members of the community, to prosecute, it is criminal for anyone to make such a composition; even though he suffered no injury and indeed has no concern with the crime.” 79. Russell on Crime (12th Edn.) also describes: “Agreements not to prosecute or to stifle a prosecution for a criminal offence are in certain cases criminal.” 80. Later on compounding was permitted in certain categories of cases where the rights of the public in general are not affected but in all cases such compounding is permissible with the consent of the injured party. 81. In our country also when the Criminal Procedure Code, 1861 was enacted it was silent about the compounding of offence. Subsequently, when the next Code of 1872 was introduced it mentioned about compounding in Section 188 by providing the mode of compounding. However, it did not contain any provision declaring what offences were compoundable. The decision as to what offences were compoundable was governed by reference to the exception to Section 214 of the Penal Code. The subsequent Code of 1898 provided Section 345 indicating the offences which were compoundable but the said section was only made applicable to compounding of offences defined and permissible under the Penal code. The present Code, which repealed the 1898 Code, contains Section 320 containing comprehensive provisions for compounding. 82. A perusal of Section 320 makes it clear that the provisions contained in Section 320 and the various sub-sections is a code by itself relating to compounding of offence. It provides for the various parameters and procedures and guidelines in the matter of compounding. If this Court upholds the contention of the appellant that as a result of incorporation of Section 147 in the NI Act, the entire gamut of procedure of Section 320 of the Code are made inapplicable to compounding of an offence under the NI Act, in that case the compounding of offence under the NI Act will be left totally unguided or uncontrolled. Such an interpretation apart from being an absurd or unreasonable one will also be contrary to the provisions of Section 4(2) of the Code, which has been discussed above. There is no other statutory procedure for compounding of offence under the NI Act. Therefore, Section 147 of the NI Act must be reasonably construed to mean that as a result of the said section the offences under the NI Act are made compoundable, but the main principle of such compounding, namely, the consent of the person aggrieved or the person injured or the complainant cannot be wished away nor can the same be substituted by virtue of Section 147 of the NI Act.” 47. In Kaushalya Devi Massand v. Roopkishore Khore, (2011) 4 SCC 593, a Division Bench of this Court succinctly stated: “11. Having considered the submissions made on behalf of the parties, we are of the view that the gravity of a complaint under the Negotiable Instruments Act cannot be equated with an offence under the provisions of the Penal Code, 1860 or other criminal offences. An offence under Section 138 of the Negotiable Instruments Act, 1881, is almost in the nature of a civil wrong which has been given criminal overtones.” (This is the clearest enunciation of a Section 138 proceeding being a “civil sheep” in a “criminal wolf’s” clothing.) 48. In R. Vijayan v. Baby, (2012) 1 SCC 260, this Court referred to the provisions of Chapter XVII of the Negotiable Instruments Act, observing that Chapter XVII is a unique exercise which blurs the dividing line between civil and criminal jurisdictions. The Court held: “16. We propose to address an aspect of the cases under Section 138 of the Act, which is not dealt with in Damodar S. 2 SCC (Civ) 520] . It is sometimes said that cases arising under Section 138 of the Act are really civil cases masquerading as criminal cases. The avowed object of Chapter XVII of the Act is to “encourage the culture of use of cheques and enhance the credibility of the instrument”. In effect, its object appears to be both punitive as also compensatory and restitutive, in regard to cheque dishonour cases. Chapter XVII of the Act is a unique exercise which blurs the dividing line between civil and criminal jurisdictions. It provides a single forum and single proceeding, for enforcement of criminal liability (for dishonouring the cheque) and for enforcement of the civil liability (for realisation of the cheque amount) thereby obviating the need for the creditor to move two different fora for relief. This is evident from the following provisions of Chapter XVII of the Act: (i) The provision for levy of fine which is linked to the amount of the cheque (Section 138) thereby rendering Section 357(3) virtually infructuous insofar as cheque dishonour cases are concerned. (ii) The provision enabling a First Class Magistrate to levy fine exceeding Rs 5000 (Section 143) notwithstanding the ceiling to the fine, as Rs 5000 imposed by Section 29(2) of the Code. (iii) The provision relating to mode of service of summons (Section 144) as contrasted from the mode prescribed for criminal cases in Section 62 of the Code. (iv) The provision for taking evidence of the complainant by affidavit (Section 145) which is more prevalent in civil proceedings, as contrasted from the procedure for recording evidence in the (v) The provision making all offences punishable under Section 138 of the Act compoundable. 17. The apparent intention is to ensure that not only the offender is punished, but also ensure that the complainant invariably receives the amount of the cheque by way of compensation under Section 357(1)(b) of the Code. Though a complaint under Section 138 of the Act is in regard to criminal liability for the offence of dishonouring the cheque and not for the recovery of the cheque amount (which strictly speaking, has to be enforced by a civil suit), in practice once the criminal complaint is lodged under Section 138 of the Act, a civil suit is seldom filed to recover the amount of the cheque. This is because of the provision enabling the court to levy a fine linked to the cheque amount and the usual direction in such cases is for payment as compensation, the cheque amount, as loss incurred by the complainant on account of dishonour of cheque, under Section 357(1)(b) of the Code and the provision for compounding the offences under Section 138 of the Act. Most of the cases (except those where liability is denied) get compounded at one stage or the other by payment of the cheque amount with or without interest. Even where the offence is not compounded, the courts tend to direct payment of compensation equal to the cheque amount (or even something more towards interest) by levying a fine commensurate with the cheque amount. A stage has reached when most of the complainants, in particular the financing institutions (particularly private financiers) view the proceedings under Section 138 of the Act, as a proceeding for the recovery of the cheque amount, the punishment of the drawer of the cheque for the offence of dishonour, becoming secondary.” 49. In Dashrath Rupsingh Rathod v. State of Maharashtra, (2014) 9 SCC 129, a three-Judge Bench of this Court answered the question as to whether the territorial jurisdiction for filing of cheque dishonour complaints is restricted to the court within whose territorial jurisdiction the offence is committed, which is the location where the cheque is dishonoured, i.e., returned unpaid by the bank on which it is drawn. This judgment has been legislatively overruled by Section 142(2) of the Negotiable Instruments Act set out hereinabove. However, Shri Mehta relied upon paragraphs 15.2 and 17 of the judgment of Vikramjit Sen, J., which states as follows: “15.2. We have undertaken this succinct study mindful of the fact that Parliamentary debates have a limited part to play in interpretation of statutes, the presumption being that legislators have the experience, expertise and language skills to draft laws which unambiguously convey their intentions and expectations for the enactments. What is palpably clear is that Parliament was aware that they were converting civil liability into criminal content inter alia by the deeming fiction of culpability in terms of the pandect comprising Section 138 and the succeeding sections, which severely curtail defences to prosecution. Parliament was also aware that the offence of cheating, etc. already envisaged in IPC, continued to be available.” “17. The marginal note of Section 138 of the NI Act explicitly defines the offence as being the dishonour of cheques for insufficiency, etc. of funds in the account. Of course, the headings, captions or opening words of a piece of legislation are normally not strictly or comprehensively determinative of the sweep of the actual Section itself, but it does presage its intendment. See Frick India Ltd. v. Union of India [(1990) 1 SCC 400 : 1990 SCC (Tax) 185] and Forage & Co. v. Municipal Corpn. of Greater Bombay [(1999) 8 SCC 577]. Accordingly, unless the provisions of the section clearly point to the contrary, the offence is concerned with the dishonour of a cheque; and in the conundrum before us the body of this provision speaks in the same timbre since it refers to a cheque being “returned by the bank unpaid”. None of the provisions of IPC have been rendered nugatory by Section 138 of the NI Act and both operate on their own. It is trite that mens rea is the quintessential of every crime. The objective of Parliament was to strengthen the use of cheques, distinct from other negotiable instruments, as mercantile tender and therefore it became essential for Section 138 of the NI Act offence to be freed from the requirement of proving mens rea. This has been achieved by deeming the commission of an offence dehors mens rea not only under Section 138 but also by virtue of the succeeding two sections. Section 139 carves out the presumption that the holder of a cheque has received it for the discharge of any liability. Section 140 clarifies that it will not be available as a defence to the drawer that he had no reason to believe, when he issued the cheque, that it would be dishonoured. Section 138 unequivocally states that the offence is committed no sooner the drawee bank returns the cheque unpaid.” The focus in this case was on the court within whose jurisdiction the offence under Section 138 can be said to have taken place. This case, therefore, has no direct relevance to the point that has been urged before 50. In Lafarge Aggregates & Concrete India (P) Ltd. v. Sukarsh Azad, (2014) 13 SCC 779, this Court, continuing the trend of the earlier judgments in describing the hybrid nature of these provisions, held: “6. The respondents have agreed to pay the said amount but the appellant has refused to accept the payment and insisted that the appeal against rejection of the recall application should be allowed by this Court. The counsel for the appellant submitted that merely because the accused has offered to make the payment at a later stage, the same cannot compel the complainant appellant to accept it and the complainant appellant would be justified in pursuing the complaint which was lodged under the Negotiable Instruments Act, 1881. In support of his submission, the counsel for the appellant also relied on Rajneesh Aggarwal v. Amit J. Bhalla [(2001) 1 SCC 7. However, we do not feel persuaded to accept this submission as the appellant has to apprise himself that the primary object and reason of the Negotiable Instruments Act, 1 The judgment in Rajneesh Aggarwal v. Amit J. Bhalla, (2001) 1 SCC 631 was delivered prior to the 2002 and 2018 Amendment Acts to the Negotiable Instruments Act. The perceptible shift in the provisions by introducing Sections 143 to 148 has been noticed by this Court hereinabove, as a result of which the observations contained in this judgment would no longer be valid. 1881, is not merely penal in nature but is to maintain the efficiency and value of a negotiable instrument by making the accused honour the negotiable instrument and paying the amount for which the instrument had been executed. 8. The object of bringing Sections 138 to 142 of the Negotiable Instruments Act on statute appears to be to inculcate faith in the efficacy of banking operations and credibility in transacting business of negotiable instruments. Despite several remedies, Section 138 of the Act is intended to prevent dishonesty on the part of the drawer of negotiable instrument to draw a cheque without sufficient funds in his account maintained by him in a bank and induces the payee or holder in due course to act upon it. Therefore, once a cheque is drawn by a person of an account maintained by him for payment of any amount or discharge of liability or debt or is returned by a bank with endorsement like (i) refer to drawer, (ii) exceeds arrangements, and (iii) instruction for stop payment and like other usual endorsement, it amounts to dishonour within the meaning of Section 138 of the Act. Therefore, even after issuance of notice if the payee or holder does not make the payment within the stipulated period, the statutory presumption would be of dishonest intention exposing to criminal liability.” “10. However, in the interest of equity, justice and fair play, we deem it appropriate to direct the respondents to make the payment to the appellant by issuing a demand draft in their favour for a sum of Rs 5 lakhs, which would be treated as an overall amount including interest and compensation towards the cheque for which stop-payment instructions had been issued. If the same is not acceptable to the appellant, it is their choice but that would not allow them to prosecute the respondents herein in pursuance to the complaint which they have lodged implicating these two respondents.” 51. In Meters and Instruments (P) Ltd. v. Kanchan Mehta, (2018) 1 SCC 560, this Court noticed the object of Section 138 and the amendments made to Chapter XVII, and summarised the case law as “6. The object of introducing Section 138 and other provisions of Chapter XVII in the Act in the year 1988 [Vide the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988] was to enhance the acceptability of cheques in the settlement of liabilities. The drawer of cheque is made liable to prosecution on dishonour of cheque with safeguards to prevent harassment of honest drawers. The Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 to amend the Act was brought in, inter alia, to simplify the procedure to deal with such matters. The amendment includes provision for service of summons by speed post/courier, summary trial and making the offence compoundable. 7. This Court has noted that the object of the statute was to facilitate smooth functioning of business transactions. The provision is necessary as in many transactions cheques were issued merely as a device to defraud the creditors. Dishonour of cheque causes incalculable loss, injury and inconvenience to the payee and credibility of business transactions suffers a setback. [Goaplast (P) Ltd. v. Chico Ursula D'Souza, (2004) 2 SCC 235, p. 248, para 26 : 2004 SCC (Cri) 499] At the same time, it was also noted that nature of offence under Section 138 primarily related to a civil wrong and the 2002 Amendment specifically made it compoundable. [Vinay Devanna Nayak v. Ryot Sewa Sahakari Bank Ltd., (2008) 2 The offence was also described as “regulatory offence”. The burden of proof was on the accused in view of presumption under Section 139 and the standard of proof was of “preponderance of probabilities”. [Rangappa v. Sri Mohan, (2010) 11 SCC 441, p. 454, para 28 : (2010) 4 SCC (Civ) 477 : (2011) 1 SCC (Cri) 184] The object of the provision was described as both punitive as well as compensatory. The intention of the provision was to ensure that the complainant received the amount of cheque by way of compensation. Though proceedings under Section 138 could not be treated as civil suits for recovery, the scheme of the provision, providing for punishment with imprisonment or with fine which could extend to twice the amount of the cheque or to both, made the intention of law clear. The complainant could be given not only the cheque amount but double the amount so as to cover interest and costs. Section 357(1)(b) CrPC provides for payment of compensation for the loss caused by the offence out of the fine. [R. Vijayan v. Baby, (2012) 1 SCC 260, p. 264, para 9 : (2012) 1 SCC (Civ) 79 : (2012) 1 SCC (Cri) 520] Where fine is not imposed, compensation can be awarded under Section 357(3) CrPC to the person who suffered loss. Sentence in default can also be imposed. The object of the provision is not merely penal but to make the accused honour the negotiable instruments. [Lafarge Aggregates & Concrete India (P) Ltd. v. Sukarsh Azad, (2014) 13 SCC 779, p. 781, para 7 : (2014) 5 SCC (Cri) 818]” “18. From the above discussion the following aspects emerge: 18.1. Offence under Section 138 of the Act is primarily a civil wrong. Burden of proof is on the accused in view of presumption under Section 139 but the standard of such proof is “preponderance of probabilities”. The same has to be normally tried summarily as per provisions of summary trial under CrPC but with such variation as may be appropriate to proceedings under Chapter XVII of the Act. Thus read, principle of Section 258 CrPC will apply and the court can close the proceedings and discharge the accused on satisfaction that the cheque amount with assessed costs and interest is paid and if there is no reason to proceed with the punitive aspect. 18.2. The object of the provision being primarily compensatory, punitive element being mainly with the object of enforcing the compensatory element, compounding at the initial stage has to be encouraged but is not debarred at later stage subject to appropriate compensation as may be found acceptable to the parties or the court. 18.3. Though compounding requires consent of both parties, even in absence of such consent, the court, in the interests of justice, on being satisfied that the complainant has been duly compensated, can in its discretion close the proceedings and discharge the accused. 18.4. Procedure for trial of cases under Chapter XVII of the Act has normally to be summary. The discretion of the Magistrate under second proviso to Section 143, to hold that it was undesirable to try the case summarily as sentence of more than one year may have to be passed, is to be exercised after considering the further fact that apart from the sentence of imprisonment, the court has jurisdiction under Section 357(3) CrPC to award suitable compensation with default sentence under Section 64 IPC and with further powers of recovery under Section 431 CrPC. With this approach, prison sentence of more than one year may not be required in all cases. 18.5. Since evidence of the complaint can be given on affidavit, subject to the court summoning the person giving affidavit and examining him and the bank's slip being prima facie evidence of the dishonour of cheque, it is unnecessary for the Magistrate to record any further preliminary evidence. Such affidavit evidence can be read as evidence at all stages of trial or other proceedings. The manner of examination of the person giving affidavit can be as per Section 264 CrPC. The scheme is to follow summary procedure except where exercise of power under second proviso to Section 143 becomes necessary, where sentence of one year may have to be awarded and compensation under Section 357(3) is considered inadequate, having regard to the amount of the cheque, the financial capacity and the conduct of the accused 52. In a recent judgment in M. Abbas Haji v. T.N. Channakeshava, “6. It is urged before us that the High Court overstepped the limits which the appellate court is bound by criminal cases setting aside an order of acquittal. Proceedings under Section 138 of the Act are quasi-criminal proceedings. The principles, which apply to acquittal in other criminal cases, cannot apply to these cases. …” Likewise, in H.N. Jagadeesh v. R. Rajeshwari, (2019) 16 SCC 730, this Court again alluded to the quasi-criminal nature of the offence as follows: “7. The learned counsel for the respondent has submitted that in order to advance the cause of justice, such an approach is 2 This judgment was subsequently referred to with approval in Makwana Mangaldas Tulsidas v. State of Gujarat, (2020) 4 SCC 695 (at paragraphs 17 and 18). permissible and for this purpose he has relied upon the judgment of this Court in Zahira Habibulla H. Sheikh v. State of Gujarat [Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158 : 2004 SCC (Cri) 999] . We are afraid that the ratio of the aforesaid judgment cannot be extended to the facts of this case, particularly when we find that the present case is a complaint case filed by the respondent under Section 138 of the Act and where the proceedings are also of quasi-criminal nature.” 53. A conspectus of these judgments would show that the gravamen of a proceeding under Section 138, though couched in language making the act complained of an offence, is really in order to get back through a summary proceeding, the amount contained in the dishonoured cheque together with interest and costs, expeditiously and cheaply. We have already seen how it is the victim alone who can file the complaint which ordinarily culminates in the payment of fine as compensation which may extend to twice the amount of the cheque which would include the amount of the cheque and the interest and costs thereupon. Given our analysis of Chapter XVII of the Negotiable Instruments Act together with the amendments made thereto and the case law cited hereinabove, it is clear that a quasi-criminal proceeding that is contained in Chapter XVII of the Negotiable Instruments Act would, given the object and context of Section 14 of the IBC, amount to a “proceeding” within the meaning of Section 14(1)(a), the moratorium therefore attaching to such proceeding. 54. Shri Lekhi, learned Additional Solicitor General, took strong objection to the use of the expression “quasi-criminal” to describe proceedings under Section 138 of the Negotiable Instruments Act, which, according to him, can only be described as criminal proceedings. This is for the reason that these proceedings result in imprisonment or fine or both, which are punishments that can be imposed only in criminal proceedings as stated by Section 53 of the Indian Penal Code. It is difficult to agree with Shri Lekhi. There are many instances of acts which are punishable by imprisonment or fine or both which have been described as quasi-criminal. One instance is the infraction of Section 630 of the Companies Act, 1956. This section reads as follows: “630. Penalty for wrongful withholding of property.—(1) If (a) wrongfully obtains possession of any property of a (b) having any such property in his possession, wrongfully withholds it or knowingly applies it to purposes other than those expressed or directed in the articles and authorised by he shall, on the complaint of the company or any creditor or contributory thereof, be punishable with fine which may extend to ten thousand rupees. (2) The Court trying the offence may also order such officer or employee to deliver up or refund, within a time to be fixed by the Court, any such property wrongfully obtained or wrongfully withheld or knowingly misapplied or in default, to suffer imprisonment for a term which may extend to two years.” In Abhilash Vinodkumar Jain v. Cox & Kings (India) Ltd., (1995) 3 SCC 732, this Court examined whether a petition under Section 630 of the Companies Act, 1956 is maintainable against the legal heirs of a deceased officer or employee for retrieval of the company’s property. In holding that it was so retrievable, this Court held: “15. Even though Section 630 of the Act falls in Part XIII of the Companies Act and provides for penal consequences for wrongful withholding of the property of the company, the provisions strictly speaking are not penal in the sense as understood under the penal law. The provisions are quasi- criminal. They have been enacted with the main object of providing speedy relief to a company when its property is wrongfully obtained or wrongfully withheld by an employee or officer or an ex-employee or ex-officer or anyone claiming under them. In our opinion, a proper construction of the section would be that the term “officer or employee” of a company in Section 630 of the Act would by a deeming fiction include the legal heirs and representatives of the employee or the officer concerned continuing in occupation of the property of the company after the death of the employee or the officer. 16. Under sub-section (1) of Section 630 for the wrongful obtaining of the possession of the property of the company or wrongfully withholding it or knowingly applying it to a purpose other than that authorised by the company, the employee or the officer concerned is “punishable with fine which may extend to one thousand rupees”. The ‘fine’ under this sub- section is to be understood in the nature of ‘compensation’ for wrongful withholding of the property of the company. Under sub-section (2) what is made punishable is the disobedience of the order of the Court, directing the person, continuing in occupation, after the right of the employee or the officer to occupation has extinguished, to deliver up or refund within a time to be fixed by the court, the property of the company obtained or wrongfully withheld or knowingly misapplied. Thus, it is in the event of the disobedience of the order of the court, that imprisonment for a term which may extend to two years has been prescribed. The provision makes the defaulter, whether an employee or a past employee or the legal heir of the employee, who disobeys the order of the court to hand back the property to the company within the prescribed time liable for punishment.” Having so held, the Court did not construe the provision strictly, which it would have been bound to do had it been a purely criminal one, but instead gave it a broad, liberal, and purposeful construction as follows: “18. Section 630 of the Act provides speedy relief to the company where its property is wrongfully obtained or wrongfully withheld by an “employee or an officer” or a “past employee or an officer” or “legal heirs and representatives” deriving their colour and content from such an employee or officer insofar as the occupation and possession of the property belonging to the company is concerned. The failure to deliver property back to the employer on the termination, resignation, superannuation or death of an employee would render the ‘holding’ of that property wrongful and actionable under Section 630 of the Act. To hold that the “legal heirs” would not be covered by the provisions of Section 630 of the Act would be unrealistic and illogical. It would defeat the ‘beneficent’ provision and ignore the factual realities that the legal heirs or family members who are continuing in possession of the allotted property had obtained the right of occupancy with the employee concerned in the property of the employer only by virtue of their relationship with the employee/officer and had not obtained or acquired the right to possession of the property in any other capacity, status or right. The legislature, which is supposed to know and appreciate the needs of the people, by enacting Section 630 of the Act manifested that it was conscious of the position that today in the corporate sector — private or public enterprise — the employees/officers are often provided residential accommodation by the employer for the “use and occupation” of the employee concerned during the course of his employment. More often than not, it is a part of the service conditions of the employee that the employer shall provide him residential accommodation during the course of his employment. If an employee or a past employee or anyone claiming the right of occupancy under them, were to continue to ‘hold’ the property belonging to the company after the right to be in occupation has ceased for one reason or the other, it would not only create difficulties for the company, which shall not be able to allot that property to its other employees, but would also cause hardship for the employee awaiting allotment and defeat the intention of the legislature. The courts are therefore obliged to place a broader, liberal and purposeful construction on the provisions of Section 630 of the Act in furtherance of the object and purpose of the legislation and construe it in a wider sense to effectuate the intendment of the provision. The “heirs and legal representatives” of the deceased employee have no independent capacity or status to continue in occupation and possession of the property, which stood allotted to the employee or the officer concerned or resist the return of the property to the employer in the absence of any express agreement to the contrary entered with them by the employer. The court, when approached by the employer for taking action under Section 630 of the Act, can examine the basis on which the petition/complaint is filed and if it is found that the company's right to retrieve its property is quite explicit and the stand of the employee, or anyone claiming through him, to continue in possession is baseless, it shall proceed to act under Section 630 of the Act and pass appropriate orders. Only an independent valid right, not only to occupation but also to possession of the property belonging to the company, unconnected with the employment of the deceased employee can defeat an action under Section 630 of the Act if it can be established that the deceased employee concerned had not wrongfully nor knowingly applied it for purposes other than those authorised by the employer. In interpreting a beneficent provision, the court must be forever alive to the principle that it is the duty of the court to defend the law from clever evasion and defeat and prevent perpetration of a legal fraud.” 55. Likewise, contempt of court proceedings have been described as “quasi-criminal” in a long series of judgments. We may point out that the predecessor to the Contempt of Courts Act, 1971, namely, the Contempt of Courts Act, 1952 did not contain any definition of the expression “contempt of court”. A Committee was appointed by the Government of India, referred to as the Sanyal Committee, which then went into whether this expression needs to be defined. The Sanyal Committee Report, 1963 then broadly divided contempts into two kinds – civil and criminal “2.1. … Broadly speaking, the classification follows the method of dividing contempt into criminal and civil contempts. The Shawcross Committee adopted the same classification on the grounds of convenience. Broadly speaking, civil contempts are contempts which involve a private injury occasioned by disobedience to the judgment, order or other process of the court. On the other hand, criminal contempts are right from their inception in the nature of offences. In Legal Remembrancer v. Matilal Ghose, I.L.R. 41 Cal. 173 at 252, Mukerji J. observed thus: “A criminal contempt is conduct that is directed against the dignity and authority of the court. A civil contempt is failure to do something ordered to be done by a court in a civil action for the benefit of the opposing party therein. Consequently, in the case of a civil contempt, the proceeding for its punishment is at the instance of the party interested and is civil in its character; in the case of a criminal contempt, the proceeding is for punishment of an act committed against the majesty of the law, and, as the primary purpose of the punishment is the vindication of the public authority, the proceedings conform as nearly as possible to proceedings in criminal cases. It is conceivable that the dividing line between the acts constituting criminal and those constituting civil contempts may become indistinct in those cases where the two gradually merge into each other.” 2.2. Notwithstanding the existence of a broad distinction between civil and criminal contempts, a large number of cases have shown that the dividing line between the two is almost imperceptible. For instance, in Dulal Chandra v. Sukumar, A.I.R. 1958 Cal. 474 at 476, 477, the following observations “The line between civil and criminal contempt can be broad as well as thin. Where the contempt consists in mere failure to comply with or carry out an order of a court made for the benefit of a private party, it is plainly civil contempt and it has been said that when the party, in whose interest the order was made, moves the court for action to be taken in contempt against the contemner with a view to an enforcement of his right, the proceeding is only a form of execution. In such a case, there is no criminality in the disobedience, and the contempt, such as it is, is not criminal. If, however, the contemner adds defiance of the court to disobedience of the order and conducts himself in interference with the course of justice, the character, partaking as between him and his opponent of the nature of a civil contempt and as between him and the court or the State, of the nature of a criminal contempt. In cases of this type, no clear distinction between civil and criminal committed cannot be broadly classed as either civil or criminal contempt … To put the matter in other words, a contempt is merely a civil wrong where there has been disobedience of an order made for the benefit of a particular party, but where it has consisted in setting the authority of the courts at nought and has had a tendency to invade the efficacy of the machinery maintained by the State for the administration of justice, it is a public wrong and consequently criminal in nature.” 2.3. In other words, the question whether a contempt is civil or criminal is not to be judged with reference to the penalty which may be inflicted but with reference to the cause for which the penalty has been inflicted. …” 56. The Statement of Objects and Reasons for the Contempt of Courts Act, 1971 expressly states that the said Act was in pursuance of the “Statement of Objects and Reasons.—It is generally felt that the existing law relating to contempt of courts is somewhat uncertain, undefined and unsatisfactory. The jurisdiction to punish for contempt touches upon two important fundamental rights of the citizen, namely, the right to personal liberty and the right to freedom of expression. It was, therefore, considered advisable to have the entire law on the subject scrutinised by a special committee. In pursuance of this, a Committee was set up in 1961 under the Chairmanship of the late Shri H. N. Sanyal the then Additional Solicitor General. The Committee made a comprehensive examination of the law and problems relating to contempt of Court in the light of the position obtaining in our own country and various foreign countries. The recommendations which the Committee made took note of the importance given to freedom of speech in the Constitution and of the need for safeguarding the status and dignity of Courts and interests of administration of justice. The recommendations of the Committee have been generally accepted by Government after considering the views expressed on those recommendations by the State Governments, Union Territory Administrations the Supreme Court, the High Courts and the Judicial Commissioners. The Bill seeks to give effect to the accepted recommendations of the Sanyal Committee.” 57. The Contempt of Courts Act, 1971 defines “civil contempt” and “2. Definitions.—In this Act, unless the context otherwise (b) “civil contempt” means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court; (c) “criminal contempt” means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of (i) scandalises or tends to scandalise, or lowers or tends to lower the authority of any court; or (ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or (iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of xxx xxx xxx” 58. Whether the contempt committed is civil or criminal, the High Court is empowered to try such “offences” whether the person allegedly guilty is within or outside its territorial jurisdiction. Thus, Section 11 of the “11. Power of High Court to try offences committed or offenders found outside jurisdiction.—A High Court shall have jurisdiction to inquire into or try a contempt of itself or of any court subordinate to it, whether the contempt is alleged to have been committed within or outside the local limits of its jurisdiction, and whether the person alleged to be guilty of contempt is within or outside such limits.” Punishments awarded for contempt of court, whether civil or criminal, are then dealt with by Section 12 of the Act, which states: “12. Punishment for contempt of court.—(1) Save as otherwise expressly provided in this Act or in any other law, a contempt of court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both: Provided that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the court. Explanation.—An apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bona fide. (2) Notwithstanding anything contained in any law for the time being in force, no court shall impose a sentence in excess of that specified in sub-section(1) for any contempt either in respect of itself or of a court subordinate to it. (3) Notwithstanding anything contained in this section, where a person is found guilty of a civil contempt, the court, if it considers that a fine will not meet the ends of justice and that a sentence of imprisonment is necessary shall, instead of sentencing him to simple imprisonment, direct that he be detained in a civil prison for such period not exceeding six months as it may think fit. (4) Where the person found guilty of contempt of court in respect of any undertaking given to a court is a company, every person who, at the time the contempt was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the contempt and the punishment may be enforced with the leave of the court, by the detention in civil prison of each such person: Provided that nothing contained in this sub-section shall render any such person liable to such punishment if he proves that the contempt was committed without his knowledge or that he exercised all due diligence to prevent its commission. (5) Notwithstanding anything contained in sub-section (4), where the contempt of court referred to therein has been committed by a company and it is proved that the contempt has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of the contempt and the punishment may be enforced, with the leave of the court, by the detention in civil prison of such director, manager, secretary or other officer. Explanation.—For the purpose of sub-sections (4) and (5),— (a) “company” means any body corporate and includes a firm or other association of individuals; (b) “director”, in relation to a firm, means a partner in the firm.” 59. In criminal contempt cases, “cognizance” in contempts other than those referred to in Section 14 of the Act is taken by the Supreme Court or the High Court in the manner provided by Section 15. Section 17 then lays down the procedure that is to be followed after cognizance is taken. Finally, by Section 23, the Supreme Court and the High Courts are given the power to make rules, not inconsistent with the provisions of the Act, providing for any matter relating to its procedure. 60. This Court, in Niaz Mohd. v. State of Haryana, (1994) 6 SCC 332, spoke of the hybrid nature of a civil contempt as follows: “9. Section 2(b) of the Contempt of Courts Act, 1971 (hereinafter referred to as ‘the Act’) defines “civil contempt” to mean “wilful disobedience to any judgment, decree, direction, order, writ or other process of a court …”. Where the contempt consists in failure to comply with or carry out an order of a court made in favour of a party, it is a civil contempt. The person or persons in whose favour such order or direction has been made can move the court for initiating proceeding for contempt against the alleged contemner, with a view to enforce the right flowing from the order or direction in 10. … In Halsbury’s Laws of England, 4th Edn., Vol. 9, para “Although contempt may be committed in the absence of wilful disobedience on the part of the contemner, committal or sequestration will not be order unless the contempt involves a degree of fault or misconduct.” “In circumstances involving misconduct, civil contempt bears a twofold character, implying as between the parties to the proceedings merely a right to exercise and a liability to submit to a form of civil execution, but as between the party in default and the State, a penal or disciplinary jurisdiction to be exercised by the court in the public interest.” In T.N. Godavarman Thirumulpad (102) v. Ashok Khot, (2006) 5 SCC “33. Proceedings for contempt are essentially personal and punitive. This does not mean that it is not open to the court, as a matter of law to make a finding of contempt against any official of the Government say, Home Secretary or a Minister. 34. While contempt proceedings usually have these characteristics and contempt proceedings against a government department or a Minister in an official capacity would not be either personal or punitive (it would clearly not be appropriate to fine or sequester the assets of the Crown or a government department or an officer of the Crown acting in his official capacity), this does not mean that a finding of contempt against a government department or Minister would be pointless. The very fact of making such a finding would vindicate the requirements of justice. In addition, an order for costs could be made to underline the significance of a contempt. A purpose of the court’s powers to make findings of contempt is to ensure that the orders of the court are obeyed. This jurisdiction is required to be coextensive with the court's jurisdiction to make orders which need the protection which the jurisdiction to make findings of contempt provides. In civil proceedings the court can now make orders (other than injunctions or for specific performance) against authorised government departments or the Attorney General. On applications for judicial review orders can be made against Ministers. In consequence such orders must be taken not to offend the theory that the Crown can supposedly do no wrong. Equally, if such orders are made and not obeyed, the body against whom the orders were made can be found guilty of contempt without offending that theory, which could be the only justifiable impediment against making a finding of contempt. (See M. v. Home Office [(1993) 3 All ER 537 : 61. The description of contempt proceedings being “quasi-criminal” in nature has its origin in the celebrated Privy Council judgment of Andre Paul Terence Ambard v. Attorney-General of Trinidad and Tobago, AIR 1936 PC 141 in which Lord Atkin referred to contempt of court proceedings as quasi-criminal (see page 143). 62. In Sahdeo v. State of U.P., (2010) 3 SCC 705, this Court again referred to the “quasi-criminal” nature of contempt proceedings as follows: “15. The proceedings of contempt are quasi-criminal in nature. In a case where the order passed by the court is not complied with by mistake, inadvertence or by misunderstanding of the meaning and purport of the order, unless it is intentional, no charge of contempt can be brought home. There may possibly be a case where disobedience is accidental. If that is so, there would be no contempt. [Vide B.K. Kar v. Chief Justice and Justices of the Orissa High Court [AIR 1961 SC 1367 : (1961) 18. In Sukhdev Singh v. Teja Singh [AIR 1954 SC 186 : 1954 Cri LJ 460] this Court placing reliance upon the judgment of the Privy Council in Andre Paul Terence Ambard v. Attorney General of Trinidad and Tabago [AIR 1936 PC 141] , held that the proceedings under the Contempt of Courts Act are quasi- criminal in nature and orders passed in those proceedings are to be treated as orders passed in criminal cases. 19. In S. Abdul Karim v. M.K. Prakash [(1976) 1 SCC 975 : Ram v. Urvashi Gulati [(2001) 7 SCC 530 : 2001 SCC (L&S) 1196] , Anil Ratan Sarkar v. Hirak Ghosh [(2002) 4 SCC 21 : AIR 2002 SC 1405] , Daroga Singh v. B.K. Pandey [(2004) 5 SCC 26 : 2004 SCC (Cri) 1521] and All India Anna Dravida Munnetra Kazhagam v. L.K. Tripathi [(2009) 5 SCC 417 : (2009) 2 SCC (Cri) 673 : AIR 2009 SC 1314] , this Court held that burden and standard of proof in contempt proceedings, being quasi-criminal in nature, is the standard of proof required in criminal proceedings, for the reason that contempt proceedings are quasi-criminal in nature. 20. Similarly, in Mrityunjoy Das v. Sayed Hasibur Rahaman 1293] this Court placing reliance upon a large number of its earlier judgments, including V.G. Nigam v. Kedar Nath Gupta 400 : AIR 1992 SC 2153] and Murray & Co. v. Ashok Kumar SC 833], held that jurisdiction of contempt has been conferred on the Court to punish an offender for his contemptuous conduct or obstruction to the majesty of law, but in the case of quasi-criminal in nature, charges have to be proved beyond reasonable doubt and the alleged contemnor becomes entitled to the benefit of doubt. It would be very hazardous to impose sentence in contempt proceedings on some probabilities. 27. In view of the above, the law can be summarised that the High Court has a power to initiate the contempt proceedings suo motu for ensuring the compliance with the orders passed by the Court. However, contempt proceedings being quasi- criminal in nature, the same standard of proof is required in the same manner as in other criminal cases. The alleged contemnor is entitled to the protection of all safeguards/rights which are provided in the criminal jurisprudence, including the benefit of doubt. There must be a clear-cut case of obstruction of administration of justice by a party intentionally to bring the matter within the ambit of the said provision. The alleged contemnor is to be informed as to what is the charge, he has to meet. Thus, specific charge has to be framed in precision. The alleged contemnor may ask the Court to permit him to cross-examine the witnesses i.e. the deponents of affidavits, who have deposed against him. In spite of the fact that contempt proceedings are quasi-criminal in nature, provisions of the Code of Criminal Procedure, 1973 (hereinafter called “CrPC”) and the Evidence Act are not attracted for the reason that proceedings have to be concluded expeditiously. Thus, the trial has to be concluded as early as possible. The case should not rest only on surmises and conjectures. There must be clear and reliable evidence to substantiate the allegations against the alleged contemnor. The proceedings must be concluded giving strict adherence to the statutory rules framed for the purpose.” In Maninderjit Singh Bitta v. Union of India, (2012) 1 SCC 273, this Court again referred to “civil” and “criminal” contempt as follows: “17. Section 12 of the 1971 Act deals with the contempt of court and its punishment while Section 15 deals with cognizance of criminal contempt. Civil contempt would be wilful breach of an undertaking given to the court or wilful disobedience of any judgment or order of the court, while criminal contempt would deal with the cases where by words, spoken or written, signs or any matter or doing of any act which scandalises, prejudices or interferes, obstructs or even tends to obstruct the due course of any judicial proceedings, any court and the administration of justice in any other manner. Under the English law, the distinction between criminal and civil contempt is stated to be very little and that too of academic significance. However, under both the English and Indian law these are proceedings sui generis. 19. Under the Indian law the conduct of the parties, the act of disobedience and the attendant circumstances are relevant to consider whether a case would fall under civil contempt or criminal contempt. For example, disobedience of an order of a court simpliciter would be civil contempt but when it is coupled with conduct of the parties which is contemptuous, prejudicial and is in flagrant violation of the law of the land, it may be treated as a criminal contempt. Even under the English law, the courts have the power to enforce its judgment and orders against the recalcitrant parties.” That contempt proceedings are “quasi-criminal” is also stated in Kanwar Singh Saini v. High Court of Delhi, (2012) 4 SCC 307 (at paragraph 38) and in T.C. Gupta v. Bimal Kumar Dutta, (2014) 14 SCC 446 (at paragraph 10). 63. What is clear from the aforesaid is that though there may not be any watertight distinction between civil and criminal contempt, yet, an analysis of the aforesaid authorities would make it clear that civil contempt is essentially an action which is moved by the party in whose interest an order was made with a view to enforce its personal right, where contumacious disregard for such order results in punishment of the offender in public interest, whereas a criminal contempt is, in essence, a proceeding which relates to the public interest in seeing that the administration of justice remains unpolluted. What is of importance is to note that even in cases of civil contempt, fine or imprisonment or both may be imposed. The mere fact that punishments that are awardable relate to Section 53 of the Indian Penal Code would not, therefore, render a civil contempt proceeding a criminal proceeding. There is a great deal of wisdom in the finding of the Sanyal Committee Report that the question whether a contempt is civil or criminal is not to be judged with reference to the penalty which may be inflicted but with reference to the cause for which the penalty has been inflicted. 64. Clearly, therefore, given the hybrid nature of a civil contempt proceeding, described as “quasi-criminal” by several judgments of this Court, there is nothing wrong with the same appellation “quasi-criminal” being applied to a Section 138 proceeding for the reasons given by us on an analysis of Chapter XVII of the Negotiable Instruments Act. We, therefore, reject the learned Additional Solicitor General’s strenuous argument that the appellation “quasi-criminal” is a misnomer when it comes to Section 138 proceedings and that therefore some of the cases cited in this judgment should be given a fresh look. 65. Shri Mehta then argued that Section 33(5) of the IBC may also be seen, as it is a provision analogous to Section 14(1)(a). Section 33(5) (5) Subject to Section 52, when a liquidation order has been passed, no suit or other legal proceeding shall be instituted by Provided that a suit or other legal proceeding may be instituted by the liquidator, on behalf of the corporate debtor, with the prior approval of the Adjudicating Authority. xxx xxx xxx” It will be noted that under this Section, the expression “no suit or other legal proceeding” occurs both in the enacting part as well as the proviso. Going by the proviso first, given the object that the liquidator now has to act on behalf of the company after a winding-up order is passed, which includes filing of suits and other legal proceedings on behalf of the company, there is no earthly reason as to why a Section 138/141 proceeding would be outside the ken of the proviso. On the contrary, as the liquidator alone now represents the company, it is obvious that whatever the company could do pre-liquidation is now vested in the liquidator, and in order to realise monies that are due to the company, there is no reason why the liquidator cannot institute a Section 138/141 proceeding against a defaulting debtor of the company. Obviously, this language needs to be construed in the widest possible form as there cannot be any residuary category of “other legal proceedings” which can be instituted against some person other than the liquidator or by the liquidator who now alone represents the company. Given the object of this provision also, what has been said earlier with regard to the non- application of the doctrines of ejusdem generis and noscitur a sociis would apply with all force to this provision as well. 66. In fact, several other provisions of the IBC may also be looked at in this context. Thus, when it comes to the duties of a resolution professional who takes over the management of the company during the corporate insolvency resolution process, Section 25(2)(b) states as follows: “25. Duties of resolution professional.— (2) For the purposes of sub-section (1), the resolution professional shall undertake the following actions, namely— (b) represent and act on behalf of the corporate debtor with third parties, exercise rights for the benefit of the corporate debtor in judicial, quasi- xxx xxx xxx” Here again, given the fact that it is the resolution professional alone who is now to preserve and protect the assets of the corporate debtor in this interregnum, the resolution professional therefore is to represent and act on behalf of the corporate debtor in all judicial, quasi-judicial, or arbitration proceedings, which would include criminal proceedings. Here again, the word “judicial” cannot be construed noscitur a sociis so as to cut down its plain meaning, as otherwise, quasi-judicial or arbitration proceedings, not being criminal proceedings, the word “judicial” would then take colour from them. This would stultify the object sought to be achieved by Section 25 and result in an absurdity, namely, that during this interregnum, nobody can represent or act on behalf of the corporate debtor in criminal proceedings. Likewise, if a corporate debtor cannot be taken over by a new management and has to be condemned to liquidation, the powers and duties of the liquidator, while representing the corporate debtor, are enumerated in Section 35. Section 35(1)(k), in particular, states as “35. Powers and duties of liquidator.—(1) Subject to the directions of the Adjudicating Authority, the liquidator shall have the following powers and duties, namely:— (k) to institute or defend any suit, prosecution or other legal proceedings, civil or criminal, in the name of on behalf of the corporate debtor; xxx xxx xxx” This provision specifically speaks of “prosecution” and “criminal proceedings”. Contrasted with Section 25(2)(b) and Section 33(5), an argument could be made that the absence of the expressions “prosecution” and “criminal proceedings” in Section 25(2)(b) and Section 33(5) would show that they were designedly eschewed by the legislature. We have seen how inelegant drafting cannot lead to absurd results or results which stultify the object of a provision, given its otherwise wide language. Thus, nothing can be gained by juxtaposing various provisions against each other and arriving at conclusions that are plainly untenable in law. 67. Shri Mehta then relied strongly upon judgments under Section 22(1) of the SICA and under Section 446(2) of the Companies Act, 1956. He relied upon BSI Ltd. v. Gift Holdings (P) Ltd., (2000) 2 SCC 737, which judgment held that the expression “suit” in Section 22(1) of the SICA would not include a Section 138 proceeding. The Court was directly concerned with only this expression and, therefore, held: “19. The said contention is also devoid of merits. The word “suit” envisaged in Section 22(1) cannot be stretched to criminal prosecutions. The suit mentioned therein is restricted to “recovery of money or for enforcement of any security against the industrial company or of any guarantee in respect of any loans or advance granted to the industrial company”. As the suit is clearly delineated in the provision itself, the context would not admit of any other stretching process. 20. A criminal prosecution is neither for recovery of money nor for enforcement of any security etc. Section 138 of the NI Act is a penal provision the commission of which offence entails a conviction and sentence on proof of the guilt in duly conducted criminal proceedings. Once the offence under Section 138 is completed the prosecution proceedings can be initiated not for recovery of the amount covered by the cheque but for bringing the offender to penal liability. What was considered in Maharashtra Tubes Ltd. [(1993) 2 SCC 144] is whether the remedy provided in Section 29 or Section 31 of the State Finance Corporation Act, 1951 could be pursued notwithstanding the ban contained in Section 22 of SICA. Hence the legal principle adumbrated in the said decision is of no avail to the appellants. 21. In the above context it is pertinent to point out that Section 138 of the NI Act was introduced in 1988 when SICA was already in vogue. Even when the amplitude of the word “company” mentioned in Section 141 of the NI Act was widened through the explanation added to the Section, Parliament did not think it necessary to exclude companies falling under Section 22 of SICA from the operation thereof. If Parliament intended to exempt sick companies from prosecution proceedings, necessary provision would have been included in Section 141 of the NI Act. More significantly, when Section 22(1) of SICA was amended in 1994 by “and no suit for the recovery of money or for the enforcement of any security against the industrial company or of any guarantee in respect of any loans or advance granted to the industrial company” Parliament did not specifically include prosecution proceedings within the ambit of the said ban.” This case is wholly distinguishable as the word “proceedings” did not come up for consideration at all. Further, given the object of Section 22(1) of the SICA, which was amended in 1994 by inserting the words that were interpreted by this Court, parliament restricted proceedings only to suits for recovery of money etc., thereby expressly not including prosecution proceedings, as was held by this Court. The observations contained in paragraph 20, that Section 138 of the Negotiable Instruments Act is a penal provision in a criminal proceeding cannot now be said to be good law given the march of events, in particular, the amendments of 2002 and 2018 to the Negotiable Instruments Act, as pointed out hereinabove, and the later judgments of this Court interpreting Chapter XVII of the 68. The next decision relied upon by Shri Mehta is the judgment in Kusum Ingots & Alloys Ltd. v. Pennar Peterson Securities Ltd., (2000) 2 SCC 745, which merely followed this judgment (see paragraphs 69. Likewise, all the judgments cited under Section 446(2) of the Companies Act, 1956 are distinguishable. Section 446(2) states as (2) The Tribunal shall, notwithstanding anything contained in any other law for the time being in force, have jurisdiction to (a) any suit or proceeding by or against the company; (b) any claim made by or against the company (including claims by or against any of its branches (c) any application made under Section 391 by or in (d) any question of priorities or any other question whatsoever, whether of law or fact, which may relate to or arise in course of the winding up of the whether such suit or proceeding has been instituted or is instituted, or such claim or question has arisen or arises or such application has been made or is made before or after the order for the winding up of the company, or before or after the commencement of the Companies (Amendment) Act, 1960. xxx xxx xxx” 70. In S.V. Kandeakar v. V.M. Deshpande, (1972) 1 SCC 438 [“S.V. Kandeakar”], this Court explained why income tax proceedings would be outside the purview of Section 446(2) as follows: “17. Turning now to the Income Tax Act it is noteworthy that Section 148 occurs in Chapter XIV which beginning with Section 139 prescribes the procedure for assessment and Section 147 provides for assessment or reassessment of income escaping assessment. This Section empowers the Income Tax Officer concerned subject to the provisions of Sections 148 to 153 to assess or re-assess escaped income. While holding these assessment proceedings the Income Tax Officer does not, in our view, perform the functions of a Court as contemplated by Section 446(2) of the Act. Looking at the legislative history and the scheme of the Indian Companies Act, particularly the language of Section 446, read as a whole, it appears to us that the expression “other legal proceeding” in sub-section (1) and the expression “legal proceeding” in sub- section (2) convey the same sense and the proceedings in both the sub-sections must be such as can appropriately be dealt with by the winding up court. The Income Tax Act is, in our opinion, a complete code and it is particularly so with respect to the assessment and re-assessment of income tax with which alone we are concerned in the present case. The fact that after the amount of tax payable by an assessee has been determined or quantified its realisation from a company in liquidation is governed by the Act because the income tax payable also being a debt has to rank pari passu with other debts due from the company does not mean that the assessment proceedings for computing the amount of tax must be held to be such other legal proceedings as can only be started or continued with the leave of the liquidation court under Section 446 of the Act. The liquidation court, in our opinion, cannot perform the functions of Income Tax Officers while assessing the amount of tax payable by the assessees even if the assessee be the company which is being wound up by the Court. The orders made by the Income Tax Officer in the course of assessment or re-assessment proceedings are subject to appeal to the higher hierarchy under the Income Tax Act. There are also provisions for reference to the High Court and for appeals from the decisions of the High Court to the Supreme Court and then there are provisions for revision by the Commissioner of Income Tax. It would lead to anomalous consequences if the winding up court were to be held empowered to transfer the assessment proceedings to itself and assess the company to income tax. The argument on behalf of the appellant by Shri Desai is that the winding up court is empowered in its discretion to decline to transfer the assessment proceedings in a given case but the power on the plain language of Section 446 of the Act must be held to vest in that court to be exercised only if considered expedient. We are not impressed by this argument. The language of Section 446 must be so construed as to eliminate such startling consequences as investing the winding up court with the powers of an Income Tax Officer conferred on him by the Income Tax Act, because in our view the legislature could not have intended such a result. 18. The argument that the proceedings for assessment or re- assessment of a company which is being wound up can only be started or continued with the leave of the liquidation court is also, on the scheme both of the Act and of the Income Tax Act, unacceptable. We have not been shown any principle on which the liquidation court should be vested with the power to stop assessment proceedings for determining the amount of tax payable by the company which is being wound up. The liquidation court would have full power to scrutinise the claim of the revenue after income tax has been determined and its payment demanded from the liquidator. It would be open to the liquidation court then to decide how far under the law the amount of income tax determined by the Department should be accepted as a lawful liability on the funds of the company in liquidation. At that stage the winding up court can fully safeguard the interests of the company and its creditors under the Act. Incidentally, it may be pointed out that at the Bar no English decision was brought to our notice under which the assessment proceedings were held to be controlled by the winding up court. On the view that we have taken, the decisions in the case of Seth Spinning Mills Ltd., (In Liquidation) and the Mysore Spun Silk Mills Ltd., (In Liquidation) do not seem to lay down the correct rule of law that the Income Tax Officers must obtain leave of the winding up court for commencing or continuing assessment or re- assessment proceedings.” From this judgment, what becomes clear is the fact that the winding-up court under Section 446(2) is to take up all matters which the company court itself can conveniently dispose of rather than exposing a company which is under winding up to expensive litigation in other courts. This being the object of Section 446(2), the expression “proceeding” was given a limited meaning as it is obvious that a company court cannot dispose of an assessment proceeding in income tax or a criminal proceeding. This is further made clear in Sudarshan Chits (I) Ltd. v. O. Sukumaran Pillai, (1984) 4 SCC 657 (at paragraph 8) and in Central Bank of India v. Elmot Engineering Co., (1994) 4 SCC 159 (at paragraph 14). 71. Shri Mehta also relied upon D.K. Kapur v. Reserve Bank of India, 2001 SCC OnLine Del 67 : (2001) 58 DRJ 424 (DB). This judgment referred to Section 446(1) and (2) of the Companies Act, 1956 and contrasted the language contained therein with the language contained in Section 457 of the same Act, which made it clear that the liquidator in a winding up by the court shall have power, with the sanction of the court, to institute or defend any suit, prosecution, or other legal proceeding, civil or criminal, in the name and on behalf of the company. Thus, the Delhi High “12. Mere look at the aforesaid provisions would show that on the one hand, in Section 457 of the Act, the legislature has empowered the liquidator to institute or defend any ‘suit’ or ‘prosecution’ or ‘other legal proceedings’ civil or criminal in the name and on behalf of company after permission from the court; and by Section 454 (5A) of the Act the legislature has empowered the Company Court itself to take cognizance of the offence under sub-section (5) of Section 454 of the Act and to try such offenders as per the procedure provided for trial of summons cases under the Code of Criminal Procedure, 1974; but on the other hand in Sections 442 and 446 of the Act the legislature has used only the expression “suit or other legal proceedings”. The words “prosecution” or “criminal case” are conspicuously missing in these Sections. It appears quite logical as purpose and object of Sections 442 and 446 of the Act is to enable the Company Court to oversee the affairs of the company and to avoid wasteful expenditure. Therefore the intention of the legislature under these Sections does not appear to provide jurisdiction to the Company Court over criminal proceedings either against the company or against its directors. Wherever legislature thought it necessary to provide such jurisdiction it has used the appropriate expressions.” It then set out the judgment in S.V. Kandeakar (supra) in paragraph 14, “15. The reasoning adopted by the Supreme Court in the above case would be fully applicable to the facts at hand. Complaints under the penal provisions of other statutes against the company or its directors, (except those provided under the Companies Act) cannot be appropriately dealt with by the Company Court. Orders passed by the criminal court are subject to the appeal and revision etc. under the Code of Criminal Procedure. If the winding up court is held to be empowered to transfer these criminal proceedings to itself it would lead to anomalous consequences.” It was in this context that the Court therefore ultimately held: “20. … The expression “other legal proceedings” must be read in ejusdem generis with the expression “suit” in Section 446 of the Act. If so read it can only refer to any civil proceedings and criminal proceedings have to be excluded. Therefore, no permission was required to be taken from Company Court for filing criminal complaint either against the company or against its directors.” 72. Shri Mehta’s reliance on Indorama Synthetics (I) Ltd. v. State of Maharashtra, 2016 SCC OnLine Bom 2611 : (2016) 4 Mah LJ 249, is also misplaced, for the reason that the finding of the Bombay High Court that Section 138 proceedings were not included in Section 446 of the Companies Act only follows the reasoning of the earlier judgments on the scope of Section 446 of the Companies Act. Significantly, given the object of Section 446 of the Companies Act, it was held that a Section 138 proceeding is not a proceeding which has a direct bearing on the collection or distribution of assets in the winding up of a company. The ultimate conclusion of the court is contained in paragraph 30, which reads “30. Thus, there is a long line of decisions making the position clear that the expression ‘suit or legal proceedings’, used in Section 446(1) of the Companies Act, can mean only those proceedings which can have a bearing on the assets of the companies in winding-up or have some relation with the issue in winding-up. It does not mean each and every civil proceedings, which has no bearing on the winding-up proceedings, or criminal offences where the Director of the Company is presently liable for penal action.” 73. As the language, object, and context of Section 22(1) of the SICA and Section 446(2) of the Companies Act are far removed from Section 14(1) of the IBC, none of the aforesaid judgments have any application to Section 14 of the IBC and are therefore distinguishable. 74. Shri Mehta then relied upon Power Grid Corporation of India Ltd. v. Jyoti Structures Ltd., 2017 SCC OnLine Del 12189 : (2018) 246 DLT 485, in which the Delhi High Court held that a Section 34 application to set aside an award under the Arbitration and Conciliation Act, 1996 would not be covered by Section 14 of the IBC. This judgment does not state the law correctly as it is clear that a Section 34 proceeding is certainly a proceeding against the corporate debtor which may result in an arbitral award against the corporate debtor being upheld, as a result of which, monies would then be payable by the corporate debtor. A Section 34 proceeding is a proceeding against the corporate debtor in a court of law pertaining to a challenge to an arbitral award and would be covered just as an appellate proceeding in a decree from a suit would be covered. This judgment does not, therefore, state the law correctly. 75. Shri Mehta then relied upon Inderjit C. Parekh v. V.K. Bhatt, (1974) 4 SCC 313. This judgment dealt with a moratorium provision contained in the Bombay Relief Undertakings (Special Provisions) Act, 1958. In the context of a prosecution under paragraph 76(a) of the Employees’ Provident Fund Scheme, 1952 this Court held: “6. The object of Section 4(1)(a)(iv) is to declare, so to say, a moratorium on actions against the undertaking during the currency of the notification declaring it to be a relief undertaking. By sub-clause (iv), any remedy for the enforcement of an obligation or liability against the relief undertaking is suspended and proceedings which are already commenced are to be stayed during the operation of the notification. Under Section 4(b), on the notification ceasing to have force, such obligations and liabilities revive and become enforceable and the proceedings which are stayed can be continued. These provisions are aimed at resurrecting and rehabilitating industrial undertakings brought by inefficiency or mismanagement to the brink of dissolution, posing thereby the grave threat of unemployment of industrial workers. “Relief undertaking” means under Section 2(2) an industrial undertaking in respect of which a declaration under Section 3 is in force. By Section 3, power is conferred on the State Government to declare an industrial undertaking as a relief undertaking, “as a measure of preventing unemployment or of unemployment relief”. Relief undertakings, so long as they continue as such, are given immunity from legal actions so as to render their working smooth and effective. Such undertakings can be run more effectively as a measure of unemployment relief, if the conduct of their affairs is unhampered by legal proceedings or the threat of such proceedings. That is the genesis and justification of Section 4(1)(a)(iv) of the Act. 7. Thus, neither the language of the statute nor its object would justify the extension of the immunity so as to cover the individual obligations and liabilities of the directors and other officers of the undertaking. If they have incurred such obligations or liabilities, as distinct from the obligations or liabilities of the undertaking, they are liable to be proceeded against for their personal acts of commission and omission. The remedy in that behalf cannot be suspended nor can a proceeding already commenced against them in their individual capacity be stayed. Indeed, it would be strange if any such thing was within the contemplation of law. Normally, the occasion for declaring an industry as a relief undertaking would arise out of causes connected with defaults on the part of its directors and other officers. To declare a moratorium on legal actions against persons whose activities have necessitated the issuance of a notification in the interest of unemployment relief is to give to such persons the benefit of their own wrong. Section 4(1)(a)(iv) therefore advisedly limits the power of the State Government to direct suspension of remedies and stay of proceedings involving the obligations and liabilities in relation to a relief undertaking and which were incurred before the undertaking was declared a relief undertaking. 8. Para 38(1) of the Employees’ Provident Funds Scheme, 1952 imposes an obligation on “The employer” to pay the provident fund contribution to the Fund within 15 days of the close of every month. The Scheme does not define “Employee” but para 2(m) says that words and expressions which are not defined by the Scheme shall have the meaning assigned to them in the Employees' Provident Funds Act. Section 2(e)(ii) of that Act defines an “Employer”, to the extent material, as the person who, or the authority which, has the ultimate control over the affairs of an establishment and where the said affairs are entrusted to a manager, managing director or managing agent, such manager, managing director or managing agent. Thus the responsibility to pay the contributions to the Fund was of the appellants and if they have defaulted in paying the amount, they are liable to be prosecuted under para 76(a) of the Scheme which says that if any person fails to pay any contribution which he is liable to pay under the Scheme, he shall be punishable with six months' imprisonment or with fine which may extend to one thousand rupees or with both. Such a personal liability does not fall within the scope of Section 4(1)(a)(iv) of the Act.” Significantly, this Court did not hold that the moratorium provision would not extend to criminal liability. On the contrary, on the assumption that it would so extend, a distinction was made between personal liability of the Directors of the undertaking and the undertaking itself, stating that as the “employer” under the Employees’ Provident Fund Scheme would only refer to those individuals managing the relief undertaking and not the relief undertaking itself, the personal liability of such persons would not fall within the scope of the moratorium provision. This judgment also, therefore, does not, in any manner, support Shri Mehta. 76. Lastly, Shri Mehta relied upon Deputy Director, Directorate of Enforcement Delhi v. Axis Bank, 2019 SCC OnLine Del 7854 : (2019) 259 DLT 500, and in particular, on paragraphs 127, 128, and 146 to 148 for the proposition that an offence under the Prevention of Money- Laundering Act could not be covered under Section 14(1)(a). The Delhi High Court’s reasoning is contained in paragraphs 139 and 141, which “139. From the above discussion, it is clear that the objects and reasons of enactment of the four legislations are distinct, each operating in different field. There is no overlap. While RDBA has been enacted to provide for speedier remedy for banks and financial institutions to recover their dues, SARFAESI Act (with added chapter on registration of secured creditor) aims at facilitating the secured creditors to expeditiously and effectively enforce their security interest. In each case, the amount to be recovered is “due” to the claimant i.e. the banks or the financial institutions or the secured creditor, as the case may be, the claim being against the debtor (or his guarantor). The Insolvency Code, in contrast, seeks to primarily protect the interest of creditors by entrusting them with the responsibility to seek resolution through a professional (RP), failure on his part leading eventually to the liquidation process.” “141. This court finds it difficult to accept the proposition that the jurisdiction conferred on the State by PMLA to confiscate the “proceeds of crime” concerns a property the value whereof is “debt” due or payable to the Government (Central or State) or local authority. The Government, when it exercises its power under PMLA to seek attachment leading to confiscation of proceeds of crime, does not stand as a creditor, the person alleged to be complicit in the offence of money-laundering similarly not acquiring the status of a debtor. The State is not claiming the prerogative to deprive such offender of ill-gotten assets so as to be perceived to be sharing the loot, not the least so as to levy tax thereupon such as to give it a colour of legitimacy or lawful earning, the idea being to take away what has been illegitimately secured by proscribed criminal activity.” This raison d’être is completely different from what has been advocated by Shri Mehta. The confiscation of the proceeds of crime is by the government acting statutorily and not as a creditor. This judgment, again, does not further his case. 77. As far as the Directors/persons in management or control of the corporate debtor are concerned, a Section 138/141 proceeding against them cannot be initiated or continued without the corporate debtor – see Aneeta Hada (supra). This is because Section 141 of the Negotiable Instruments Act speaks of persons in charge of, and responsible to the company for the conduct of the business of the company, as well as the company. The Court, therefore, in Aneeta Hada (supra) held as under: “51. We have already opined that the decision in Sheoratan Agarwal [(1984) 4 SCC 352 : 1984 SCC (Cri) 620] runs counter to the ratio laid down in C.V. Parekh [(1970) 3 SCC 491 : 1971 SCC (Cri) 97] which is by a larger Bench and hence, is a binding precedent. On the aforesaid ratiocination, the decision in Anil Hada [(2000) 1 SCC 1 : 2001 SCC (Cri) 174] has to be treated as not laying down the correct law as far as it states that the Director or any other officer can be prosecuted without impleadment of the company. Needless to emphasise, the matter would stand on a different footing where there is some legal impediment and the doctrine of lex non cogit ad impossibilia gets attracted.” “56. We have referred to the aforesaid passages only to highlight that there has to be strict observance of the provisions regard being had to the legislative intendment because it deals with penal provisions and a penalty is not to be imposed affecting the rights of persons, whether juristic entities or individuals, unless they are arrayed as accused. It is to be kept in mind that the power of punishment is vested in the legislature and that is absolute in Section 141 of the Act which clearly speaks of commission of offence by the company. The learned counsel for the respondents have vehemently urged that the use of the term “as well as” in the Section is of immense significance and, in its tentacle, it brings in the company as well as the Director and/or other officers who are responsible for the acts of the company and, therefore, a prosecution against the Directors or other officers is tenable even if the company is not arraigned as an accused. The words “as well as” have to be understood in the context.” “58. Applying the doctrine of strict construction, we are of the considered opinion that commission of offence by the company is an express condition precedent to attract the vicarious liability of others. Thus, the words “as well as the company” appearing in the Section make it absolutely unmistakably clear that when the company can be prosecuted, then only the persons mentioned in the other categories could be vicariously liable for the offence subject to the averments in the petition and proof thereof. One cannot be oblivious of the fact that the company is a juristic person and it has its own respectability. If a finding is recorded against it, it would create a concavity in its reputation. There can be situations when the corporate reputation is affected when a Director is indicted. 59. In view of our aforesaid analysis, we arrive at the irresistible conclusion that for maintaining the prosecution under Section 141 of the Act, arraigning of a company as an accused is imperative. The other categories of offenders can only be brought in the drag-net on the touchstone of vicarious liability as the same has been stipulated in the provision itself. We say so on the basis of the ratio laid down in C.V. Parekh [(1970) 3 SCC 491 : 1971 SCC (Cri) 97] which is a three-Judge Bench decision. Thus, the view expressed in does not correctly lay down the law and, accordingly, is hereby overruled. The decision in Anil Hada [(2000) 1 SCC 1 : 2001 SCC (Cri) 174] is overruled with the qualifier as stated in para 51. The decision in Modi Distillery [(1987) 3 SCC 684 : 1987 SCC (Cri) 632] has to be treated to be restricted to its own facts as has been explained by us hereinabove.” Since the corporate debtor would be covered by the moratorium provision contained in Section 14 of the IBC, by which continuation of Section 138/141 proceedings against the corporate debtor and initiation of Section 138/141 proceedings against the said debtor during the corporate insolvency resolution process are interdicted, what is stated in paragraphs 51 and 59 in Aneeta Hada (supra) would then become applicable. The legal impediment contained in Section 14 of the IBC would make it impossible for such proceeding to continue or be instituted against the corporate debtor. Thus, for the period of moratorium, since no Section 138/141 proceeding can continue or be initiated against the corporate debtor because of a statutory bar, such proceedings can be initiated or continued against the persons mentioned in Section 141(1) and (2) of the Negotiable Instruments Act. This being the case, it is clear that the moratorium provision contained in Section 14 of the IBC would apply only to the corporate debtor, the natural persons mentioned in Section 141 continuing to be statutorily liable under Chapter XVII of the Negotiable 78. In conclusion, disagreeing with the Bombay High Court and the Calcutta High Court judgments in Tayal Cotton Pvt. Ltd. v. State of Maharashtra, 2018 SCC OnLine Bom 2069 : (2019) 1 Mah LJ 312 and M/s MBL Infrastructure Ltd. v. Manik Chand Somani, CRR 3456/2018 (Calcutta High Court; decided on 16.04.2019), respectively, we hold that a Section 138/141 proceeding against a corporate debtor is covered by Section 14(1)(a) of the IBC. 79. Resultantly, the civil appeal is allowed and the judgment under appeal is set aside. However, the Section 138/141 proceedings in this case will continue both against the company as well as the appellants for the reason given by us in paragraph 77 above as well as the fact that the insolvency resolution process does not involve a new management taking over. We may also note that the moratorium period has come to an end in this case. Criminal Appeal arising out of SLP (Criminal) Diary No.32585 of 2019 1. Delay condoned. Leave granted. 2. Shri S. Nagamuthu, learned Senior Advocate appearing on behalf of the appellant, has made various submissions before us. Suffice it to state that his first submission is that as a moratorium is imposed against the corporate debtor w.e.f. 10.07.2017, the Section 138 complaint that was preferred on 19.09.2017 must be quashed. 3. On the facts of this case, three cheques – for INR 25,00,000/- dated 31.05.2017, for INR 25,00,000/- dated 30.06.2017, and for INR 23,51,408/- dated 31.07.2017 were issued by the appellant in favour of the respondent. Before the cheques could be presented for payment, on 10.07.2017, the Adjudicating Authority admitted a petition by an operational creditor under Section 9 of the IBC and imposed a moratorium under Section 14. The three cheques were presented for payment, but were returned citing “insufficient funds” as the reason on 04.08.2017. The legal notice to initiate proceedings under Section 138 of the Negotiable Instruments Act was issued by the respondent on 12.08.2017. As no payment was forthcoming within the time specified, the respondent preferred a complaint against the corporate debtor alone on 19.09.2017. 4. The respondent did not dispute the aforesaid dates, only reiterating that the High Court was right in dismissing a quash petition filed by the appellant under Section 482 of the CrPC. 5. Since the complaint that has been filed in the present case is against the corporate debtor alone, without joining any of the persons in charge of and responsible for the conduct of the business of the corporate debtor, the complaint needs to be quashed, given our judgment in Civil Appeal No.10355 of 2018. The judgment under appeal, dated 02.04.2019, is therefore set aside and the appeal is allowed. Criminal Appeals arising out of SLP ( Criminal) Nos.10587/2019, 1. Leave granted. 2. On the facts of these cases, all the complaints filed by different creditors of the same appellant under Section 138 read with Section 141 of the Negotiable Instruments Act were admittedly filed long before the Adjudicating Authority admitted a petition under Section 7 of the IBC and imposed moratorium on 19.03.2019. 3. Given our judgment in Civil Appeal No.10355 of 2018, the said moratorium order would not cover the appellant in these cases, who is not a corporate debtor, but a Director thereof. Thus, the impugned order issuing a proclamation under Section 82 CrPC cannot be faulted with on this ground. The appeals are therefore dismissed. Criminal Appeal arising out of SLP (Criminal) Nos.2246-2247 of 2020 1. Leave granted. 2. In this case, the two complaints dated 12.03. 2018 and 14.03.2018 under Section 138 read with Section 141 of the Negotiable Instruments Act were filed by the respondent against the corporate debtor along with persons in charge of and responsible for the conduct of business of the corporate debtor. On 14.02.2020, the Adjudicating Authority admitted a petition under Section 9 of the IBC against the corporate debtor and imposed a moratorium. The impugned interim order dated 20.02.2020 is for the issuance of non-bailable warrants against two of the accused individuals. 3. Given our judgment in Civil Appeal No.10355 of 2018, the moratorium provision not extending to persons other than the corporate debtor, this appeal also stands dismissed. Criminal Appeal arising out of SLP (Criminal) No.2496 of 2020 1. Leave granted. 2. In the present case, a complaint under Section 138 read with Section 141 of the Negotiable Instruments Act was filed by Respondent No.1 against the corporate debtor together with its Managing Director and Director on 15.05.2018. It is only thereafter that a petition under Section 9 of the IBC, filed by Respondent No.1, was admitted by the Adjudicating Authority and a moratorium was imposed on 30.10.2018. The impugned judgment dated 16.10.2019 held that a petition under Section 482, CrPC to quash the said proceeding would be rejected as Section 14 of the IBC did not apply to Section 138 proceedings. 3. The impugned judgment is set aside in view of our judgment in Civil Appeal No.10355 of 2018, and the complaint is directed to be continued against the Managing Director and Director, respectively. Criminal Appeal arising out of SLP (Criminal) No.3500 of 2020 1. Leave granted. 2. The complaint in the present case was filed by the respondent on 28.07.2016. An application under Section 7, IBC was admitted by the Adjudicating Authority only on 20.02.2018 and moratorium imposed on the same date. The impugned judgment rejected a petition under Section 482 of the CrPC on the ground that Section 138 proceedings are not covered by Section 14 of the IBC. 3. The impugned judgment is set aside in view of our judgment in Civil Appeal No.10355 of 2018, and the complaint is directed to be continued against the appellant. Criminal Appeal arising out of SLP (Criminal) No.5638-5651/2020, Leave granted. In these appeals, the appellants have approached us directly from the learned Magistrate’s impugned orders. The learned Magistrate has held that Section 14 of the IBC would not cover proceedings under Section 138 of the Negotiable Instruments Act. As a result, warrants of attachment have been issued under Section 431 read with Section 421 CrPC against various accused persons, including the corporate debtor and persons who are since deceased. While setting aside the impugned judgments, given our judgment in Civil Appeal No.10355 of 2018, we remand these cases to the Magistrate to apply the law laid down by us in Civil Appeal No.10355 of 2018, and thereafter decide all other points that may arise in these cases in accordance with law. 1. All these writ petitions have been filed under Article 32 of the Constitution of India by erstwhile Directors/persons in charge of and responsible for the conduct of the business of the corporate debtor. They are all premised upon the fact that Section 138 proceedings are covered by Section 14 of the IBC and hence, cannot continue against the corporate debtor and consequently, against the petitioners. 2. Given our judgment in Civil Appeal No.10355 of 2018, all these writ petitions have to be dismissed in view of the fact that such proceedings can continue against erstwhile Directors/persons in charge of and responsible for the conduct of the business of the corporate debtor.
The Supreme Court has said that legal cases about bouncing checks are "quasi-criminal" in nature. This means they are a mix of civil (money-related) and criminal (punishment-related) actions. These cases fall under Section 138 of the Negotiable Instruments Act. The Court also made an interesting comment, saying that these Section 138 cases are like a "civil sheep" in "criminal wolf's clothing." A group of judges, including Justices RF Nariman, Navin Sinha, and KM Joseph, made these comments. They were deciding if a temporary halt on legal actions, called a "moratorium," applied to these check-bouncing cases. This moratorium is put in place under Section 14 of the Insolvency and Bankruptcy Code for companies facing financial trouble. One main question for the Court was whether a Section 138 check-bouncing case counted as a "proceeding" under Section 14 of the Insolvency and Bankruptcy Code. Many lower courts had believed that since check-bouncing cases were criminal, they would not be stopped by this moratorium. To decide if those lower court views were correct, the judges looked closely at what Section 138 check-bouncing cases really are. The judges noted that when this law was created, lawmakers knew that "what is normally a civil debt can also be treated as a crime." Also, old debts that cannot be legally collected anymore are not covered by Section 138. The fact that the law can order a fine up to twice the check amount, paid as compensation to the person who was wronged, shows its mixed nature. This payment covers the check amount, interest, and other costs. It is truly a mixed law designed to make sure a bounced check gets paid if it would otherwise be legally enforceable in a civil court. Because the law requires the person who wrote the check to be given a chance to pay back the money, through an official demand notice, the Court said that "the real goal of this law is not to punish the person who did wrong, but to pay back the victim." The judges also pointed out that you don't need to prove the person intended to commit a crime (known as "mens rea") for this offense. They also noticed that the process for these check cases is different from the usual steps in criminal law. First, no court can start a Section 138 case unless the victim (the person the check was written to, or who legally owns it) files a written complaint. Also, there's a concept called "cause of action" in Section 142(1)(b), meaning the complaint must be filed within one month of the event that led to the lawsuit. The judgment noted that the idea of a "cause of action" is clearly missing from the part of criminal law that deals with where criminal courts have the power to hear cases. The judges then said that a change made to the Negotiable Instruments Act in 2018, which allowed for temporary compensation payments, made these cases seem even more like civil cases. Referring to an earlier court decision, the judgment explained that "a civil case isn't always one that starts with filing a lawsuit and ends with enforcing a court order." "Given these tests, it is clear that a Section 138 case can be called a 'civil sheep' in 'criminal wolf's clothing'," the judges said. This is because the law aims to protect the victim's interests. The broader interests of the state (government) are included only when the victim themselves takes the check-bouncing case to court, as their review of the law showed. **Moratorium Under Section 14 IBC Covers Section 138 NI Act Proceedings Against Corporate Debtor For Cheque Dishonour : Supreme Court** **Quasi-criminal proceedings** A government lawyer, Aman Lekhi, disagreed with calling Section 138 cases "quasi-criminal." He argued that since the law allows for punishments like those listed in Section 53 of the Indian Penal Code, it cannot be called "quasi-criminal." The Court rejected this argument. They said there are many actions punishable by jail time or fines, or both, that are still described as "quasi-criminal." Examples include criminal contempt (disobeying a court) or breaking rules in company law. "Therefore, it is clear, given the mixed nature of a civil contempt case, which several court rulings have called 'quasi-criminal,' there is nothing wrong with calling a Section 138 case 'quasi-criminal' too. This is for the reasons we have given after analyzing the Negotiable Instruments Act," the judges said. "We, therefore, reject the government lawyer's strong argument that 'quasi-criminal' is the wrong name for Section 138 cases, and that some past cases should be reconsidered." The Court decided that Section 138 cases against a company that owes money will be covered by Section 14 of the Insolvency and Bankruptcy Code. "Based on our review of the Negotiable Instruments Act, its changes, and the previous court cases mentioned, it is clear that a quasi-criminal case under this law would count as a 'proceeding' under Section 14(1)(a) of the Insolvency and Bankruptcy Code. This means the moratorium will apply to such cases," Justice Nariman wrote in the judgment. Case Details Case Title :P Mohanraj and others v M/s Shah Brothers Ispat Ltd and connected cases Coram : Justices RF Nariman, Navin Sinha and KM Joseph
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. This Bench has been specially constituted to hear the petitioner’s aforesaid petition and other petitions, by the Hon’ble Chief Justice. Both the members of this Bench preside over their respective Benches and have to disturb their regular boards, to assemble only for these matters. 1.1. On 27th April 2022, we heard the learned counsel for the parties from 4:30 p.m. to 7:00 p.m. and closed the matter for orders. 1.2. This Writ Petition under Article 226 of the Constitution of India is filed by the petitioner thereby taking an exception to the order dated 16.08.2019 passed by respondent No.1 - Presiding Officer of the Maintenance and Welfare of Parents and Senior Citizens’ Tribunal (for 1.3. The only substantive prayer in the petition reads as under:- ii. That this Hon’ble Court be pleased to call for the records and proceedings from the Respondent No.1 and after perusing the legality and propriety of the impugned order dated 16.08.2019 passed by the Respondent No.1, this Hon’ble Court be pleased to issue a Writ of Certiorari and/or any other appropriate Writ, order or direction under Article 226 of the Constitution of India and quash and set aside the impugned order dated 16.08.2019 passed by the Respondent No.1 at 2. During the pendency of this petition, the Division Bench of this Court (Coram: S. C. Dharmadhikari and G. S. Patel, JJ.), by order dated “5.(c) Since it is stated that the Petitioner may be dispossessed tomorrow and by using force, we direct that until further orders of this Court, the operative direction No.3 which directs the Petitioner to hand over vacant and peaceful possession of the premises to her in-laws be not acted upon or implemented.” 2.1. The aforesaid direction / interim order is in force till date. 3. Background facts leading to the filing of this petition are as 3.1. Respondent No.1 / non-applicant has passed the order (impugned in the present petition) in the proceedings instituted by Smt. Nalini Mahendra Shah - respondent No.2 herein and her husband - Mahendra Shah. Since during the pendency of the present writ petition, husband of respondent No.2 died, with the permission of the Court, his name has been deleted from the array of the respondents. Respondent No.4 - Mr. Devang Shah is the husband of the petitioner as also the son of respondent No.2. Present petitioner - Ms. Sheetal Shah is the daughter- in-law of respondent No.2 and respondent No.3 (deleted). 4. For the sake of convenience, parties shall be referred to by their names and not by their status before the Tribunal or this Court. 5. Nalini Shah and her husband Mahendra Shah filed the application No.SDO/SCNo.SDO/JNVMP/Desk-6/SR-38 of 2018 before the Tribunal constituted under the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. Briefly stated contentions of the applicants therein viz., Nalini Shah and Mahendra Shah, were as under:- a. that, they are staying at Saprem, Plot No.20, 3 rd Road, Juhu referred to as the ‘residential premises’). b. Devang Shah is the only son of Nalini Shah and Mahendra Shah and Sheetal Shah is their daughter-in-law. They all are residing in the aforesaid residential premises. c. Nalini Shah is the housewife and her husband Mahendra Shah (deceased) was employed in the renowned business of diamond and diamond jewellery at Opera House. Mahendra Shah retired from the said business in the year 2016 and he had no other residential premises, save and except the residential premises at Saprem, Plot No.20, 3 rd Road, Juhu d. Devang Shah is the employee of Supergems India Private Limited and Sheetal Shah is working as a fashion designer. Both of them are receiving handsome salary. e. the aforesaid residential premises is in the name of Mahendra Shah and Nalini Shah. f. It was alleged that Sheetal Shah and Devang Shah are unable to look after Nalini Shah and Mahendra Shah and from last one year, they are not looking after necessities of life of Nalini Shah and Mahendra Shah. From January - February 2017 till the filing of the application, they were harassed in the said residential premises though they are the owners of the said house. Sheetal Shah and Devang Shah, both, are torturing Nalini Shah and Mahendra Shah, physically as well as mentally. g. Nalini Shah is suffering from asthma, vergio, back pain and leg pain. 5.1. In the aforesaid background, facts and circumstances, the said application was filed by Nalini Shah and her husband Mahendra Shah. 6. From a perusal of the original record summoned from the office of respondent No.1 before whom the proceedings were instituted by Nalini Shah and Mahendra Shah, it appears that various criminal complaints have been filed by both of them before the police authorities thereby making serious allegations, particularly against Sheetal Shah. The tenor of the said allegations is that Sheetal Shah and her husband Devang Shah have made their life miserable and there is a continuous physical and mental torture / harassment to them in their old age and that too in their own house. 7. Respondent No.1, before whom the application was filed by Nalini Shah and Mahendra Shah, had issued show cause notice to Sheetal Shah and Devang Shah. 8. Pursuant to the said notice, Sheetal Shah filed her detailed reply with annexures contending therein, that she has also filed various criminal complaints for physical and mental harassment by her mother- in-law and father-in-law i.e., Nalini Shah and Mahendra Shah respectively, to her and her two children. It appears that to the said complaints, Sheetal Shah had also annexed petition filed by her before the Family Court, the orders passed thereon and the other proceedings initiated by her, under the Protection of Women from Domestic Violence 8.1. Sheetal Shah also stated in her reply that the application filed by Nalini Shah and Mahendra Shah suffered from suppression of important facts. She, therefore, prayed for rejection of the application at the threshold. It is stated that the residential premises in question is a joint household where Nalini Shah, Mahendra Shah, Devang Shah and her two precious children are residing. The said residential premises is the part of Navyug Co-operative Housing Society Limited. Mahendra Shah’s father namely, P. G. Shah had procured the said residential premises and after his and his wife’s death, the said residential premises are in the joint ownership of the remaining members. It is stated that Devang Shah has been paying rent towards the said residential premises. It is further stated that Mahendra Shah and Devang Shah are working together in the family business of Diamond Trading and Jewellery (Ridham and Co.), share trading and land estate and that they have concealed these facts. 8.2. It is alleged in the said reply that Mahendra Shah and Devang Shah have transacted in shares to the tunes of several crores and traded in diamonds under the name of Sheetal Shah without her knowledge or approval. It is further alleged that Nalini Shah, Mahendra Shah and Devang Shah have committed grave economical crimes against her. There are further allegations made in the said reply against Nalini Shah, Mahendra Shah and Devang Shah. 8.3. There is a reference to the proceedings instituted by Sheetal Shah under the Protection of Women from Domestic Violence Act, 2005. It is alleged that in the said pending proceedings, her husband Devang Shah and his advocates have been forging her signatures. There are other allegations made against her husband - Devang Shah. Along with the written statement and various documents, the photographs showing the incidents occurred in and around the house and the injuries suffered by Sheetal Shah as also the medical certificates to that effect have been annexed. It is stated that at the relevant time, Nalini Shah and Mahendra Shah were residing permanently in Lonavala. However, the said fact has been suppressed by Nalini Shah and Mahendra Shah in their application filed before the Tribunal. It is stated that the residential premises is a HUF (Hindu Undivided Family) property, and that Nalini Shah and Mahendra Shah have permanently moved to Lonavala and Mahendra Shah, at the relevant time, moved the petition before the High Court that he be declared as co-owner of the residential premises in question, which proves beyond doubt that Mahendra Shah was not the co-owner of the said residential premises, till the date of filing of proceedings before the High Court, seeking such a declaration. 9. Since Sheetal Shah has filed a very detailed reply to the said proceedings, we may refer to the said reply, the averments in the application and documents placed on record by the parties in the said proceedings instituted before the Tribunal as and when we deem it 10. Respondent No.1 - Tribunal allowed the aforesaid application filed by Nalini Shah and Mahendra Shah and directed Sheetal Shah and Devang Shah together to pay Rs.25,000/- (Rupees Twenty Five Thousand only) per month to Nalini Shah and Mahendra Shah for their maintenance, subsistence and medical expenses by depositing the said amount in the bank accounts of Nalini Shah and Mahendra Shah. Sheetal Shah and Devang Shah were directed to handover the possession of the entire residential premises to Nalini Shah and Mahendra Shah in a very peaceful manner within 15 days from the date of receipt of the order. Devang Shah and Sheetal Shah were directed to make separate arrangement for their accommodation elsewhere. It was further observed that if Devang Shah and Sheetal Shah failed to implement the order on their own, Nalini Shah and Mahendra Shah were at liberty to contact the police station immediately for execution of the order. 11. Being aggrieved by the said order, the present writ petition is 12. Ms. Yasmin Tavaria, learned counsel appearing for Sheetal Shah submitted that Section 2(a) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as the ‘Senior Citizens Act’) defines the category of persons under the caption ‘children’ which would include son, daughter, grandson and grand- daughter but does not include a minor. It is submitted that a bare perusal of the said provision would make it clear that Sheetal Shah, who is a daughter-in-law of Nalini Shah and Mahendra Shah, is not covered under the said definition, and therefore, she is not liable to pay maintenance to Nalini Shah. It is submitted that the proceedings instituted by Sheetal Shah are pending before the Family Court at Bandra, which are the substantive proceedings in which an order is passed, directing Devang Shah or his servants, agents or any other person on his behalf not to prevent Sheetal Shah to enter the matrimonial house, her stay in the bed-room in which she is residing and using the kitchen. Learned counsel invites our attention to the said order dated 03.09.2019 passed by the Family Court. 12.1. It is submitted that the order impugned in the petition was received by Sheetal Shah on 05.09.2019 though the said order was passed on 16.08.2019. Section 8 of the said Act sets out the procedure to be followed in case of enquiry. Sub-clause (2) clearly indicates that the Tribunal shall have all the powers of a civil court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses. It is submitted that though the Tribunal framed the issues, the findings recorded are without any evidence on record. 12.2. It was submitted that Nalini Shah was not having any right to move the Tribunal and that she was not having any right to evict Sheetal Shah from the residential premises. Divorce proceedings are still pending and Family Court has passed order on 03.09.2019 thereby directing Devang Shah not to prevent Sheetal Shah from entering the matrimonial house. She submitted that interim orders speak of the immense wealth of Devang Shah and his parents. 12.3. It is submitted that the Tribunal closed the matter for order on 16.04.2019. However, the order was passed in the month of August, 2019, after several months and after Mahendra Shah, father-in-law of Sheetal Shah had expired. It is submitted that the Division Bench of this Court (Coram : S. C. Dharmadhikari and G. S. Patel, JJ.) has stayed the order passed by the Tribunal. 12.4. It is further submitted that Nalini Shah and Mahendra Shah have submitted documents under oath before the Tribunal to the effect that the matrimonial residence i.e., the residential premises will be inherited by Devang Shah, after the death of Mahendra Shah. 12.5. It is submitted that the entire case papers filed by Nalini Shah and Mahendra Shah in the Tribunal, has been annexed to the petition. The property nomination letter duly accepting Devang Shah as a nominee is also annexed. The R.T.I. (Right to Information) copy of the same is also annexed to the additional compilation of documents. The same is signed by Nalini Shah under oath before the Tribunal, whereby, it is stated that the Society had accepted the nomination declaration approving Devang Shah as a sole nominee of Mahendra Shah (since deceased) for the right, title and interest in the share certificate of Plot No.20 in Navyug Society. She submitted that the eviction orders against Sheetal Shah were rightfully stayed. 12.6. It is submitted that Devang Shah neither filed a reply before the Tribunal nor did he oppose the relief claimed by Nalini Shah and Mahendra Shah, and that Nalini Shah and Devang Shah are acting in collusion with a common intention of causing and ousting Sheetal Shah from her matrimonial house, despite the fact, that substantive proceedings i.e., divorce proceedings were pending before the Family Court at Bandra, in which Sheetal Shah had succeeded in getting interim orders against Nalini Shah and Devang Shah, thereby, preventing them from evicting Sheetal Shah from the matrimonial house. It is submitted that Nalini Shah and Mahendra Shah have a property in Lonavala and they were residing there permanently, before they arrived at the matrimonial house. She submitted that Devang Shah and his mother Nalini Shah have deputed bouncers, who are residing in the said residential premises and they have assaulted and abused Sheetal Shah and her sons making their lives, living hell. 12.7. Ms. Tavaria, learned counsel invites our attention to the compilation of documents to demonstrate that Nalini Shah and Mahendra Shah are / were residing in the house at Lonavala. The photographs of the said house in Lonavala, which according to Sheetal Shah is approximately 4000 sq.ft., are placed on record along with the compilation. She also invites our attention to a copy of the ration card at Annexure-K and submits that the names of Sheetal Shah and her sons have been mentioned in the ration card. It is submitted that Devang Shah has transferred huge amount in the account of Nalini Shah. 12.8. Learned counsel invites our attention to the written submissions, which are placed on record and submits that the said residential premises wherein Sheetal Shah and her sons are residing, is a HUF property, and that Devang Shah is holding on to all the wealth, bequeathed to her two sons from the Will of late Mahendra Shah. She, therefore, prays that the petition deserves to be allowed. 13. Mr. Vivek Kantawala, learned counsel appearing for Nalini Shah invites our attention to the list of dates and events mentioned in the written submissions, which are placed on record and submits that there is continuous mental and physical harassment to Nalini Shah and Mahendra Shah (prior to his death) by Sheetal Shah and her husband Devang Shah, that Sheetal Shah and Devang Shah, in collusion started harassing Nalini Shah and her husband Mahendra Shah, from the year 2017-18, and that they have made the life of Nalini Shah miserable and have created a situation, wherein Nalini Shah cannot live peacefully in her own house. 13.1. It is submitted that the order of the Family Court was passed in the absence of Nalini Shah as the proceedings before the said Court were between the husband and wife i.e., Devang Shah and Sheetal Shah respectively, and therefore, the said order is not binding upon Nalini Shah. It is submitted that Sheetal Shah had suppressed the fact, that proceedings were pending against her, before the Senior Citizens Forum in the Family Court. She also remained absent on couple of dates of hearing before the said Forum though she was duly served. He submitted that a perusal of the impugned order passed by the Tribunal would show that the proceedings were properly served upon Sheetal Shah and Devang Shah, however, Devang Shah chose not to file a written statement, whilst, Sheetal Shah filed a detailed written statement. The impugned order under issue No.1 states that the law that has been promulgated is for the purpose of taking care of the senior citizens who cannot look after themselves. The impugned order further proceeds to record that Sheetal Shah has been unable to furnish any proof that the senior citizens are doing business. Hence, on the basis of preamble of the said Act, a finding is recorded against issue No.1, taking into consideration the age of the senior citizens and their inability to earn, is 13.2. He submitted that with regard to issue No.2, the Tribunal has observed that atrocities that have been meted out to the senior citizens from February 2018 and various complaints made to the police authorities. Cross-complaints filed before the police authorities, establish the disputes and the atrocities have been recognized by the Tribunal and have been reproduced in the impugned order under issue No.2. He submitted that the impugned order recognizes the relationship between Devang Shah and Sheetal Shah, and recognizes the demeanour of Sheetal Shah, at the time of arguments. Learned counsel submits that the Tribunal has also recognized that the plea of the senior citizens living in Lonavala, has not been substantiated with any proof and thus proceeded to give an affirmative finding against issue No.2. 13.3. Mr. Kantawala submitted that the Tribunal also recognized the powers vested in it under Section 23 of the said Act and considered the plea of Sheetal Shah who had “a claim in future time” on the property, which even assuming for the sake of argument would be a submission, then it is necessary to note that such right to Sheetal Shah only devolves to her husband Devang Shah, whose eviction also has been sought by Nalini Shah and Mahendra Shah. 13.4. He submitted that the preamble for the promulgation of the Senior Citizens Act, was on the basis that a noticeable trend was seen in the society where traditional norms and values of providing care for the elderly was given a go-by. In particular, widows were compelled to spend their sunset years all alone and were exposed to emotional and physical as well as financial neglect which caused the imbalance in the social sphere. Though there are other provisions available, the Bill, which proposed the Senior Citizens Act, was with an endeavour to cast an obligation on persons who inherit property to maintain such aged senior citizens. The preamble of the said Act was also on the touchstone of proper medical facility and protection to the life and property of senior citizens. Hence, to achieve such objectives, the promulgation of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 was brought into force on and from 29.12.2007. 13.5. Mr. Kantawala submitted that the said Act, is an Act with summary procedure. At various levels, there has been a contention raised as to would it be appropriate to carry out a summary procedure without leading evidence. The submissions on various quarters of leading evidence itself vitiates the purpose and objects of the said Act. The purpose and object of the said Act was not to make people who are in their 70’s and 80’s to lead evidence, to cross-examine or to be cross- examined and wait endlessly for years to come for finality of such proceedings. The purpose and object of the said Act was only to aid “sunset years of senior citizens as otherwise if this procedure was to be followed then the Civil Courts were already equipped with such mechanizms.” However, to give speedy disposal, the objective of the Act, was to carry out proceedings in a summary manner. Moreover, legal representation is not permitted before proceedings under the said Act, which in itself shows that mere pleading and appropriate averments as well as supporting documents and submissions are only necessary for the purposes of passing orders in a summary manner under the said Act. He submitted that the Tribunal is a creature of the statute, hence like the DRT and CEGAT, the Tribunal is to only decide on issues in a summary manner. In support of these submissions, he relied upon the judgment of the Division Bench of this Court (Coram: G. S. Patel and Madhav J. Jamdar, JJ.) in the case of Shweta Shetty Vs. State of Maharashtra decided on 25.11.2021 in Writ Petition (L) No.9374 of 2020, and more particularly paragraph 18 thereof, relevant portion thereof reads thus, “18. … We do not believe that it is the statutory intent that the harassment towards Senior Citizens should continue while the Tribunal is flooded or inundated with some evidence or the other only to prolong or delay matters. The one thing that Senior Citizens do not have the benefit or luxury is of time. It is not on their side, and every days delay before a Tribunal like this hurts Senior Citizens exponentially more than the younger generation. …” 13.6. He submitted that the judgment in Shweta Shetty (supra) also dealt with the issue as to whether an eviction is contemplated under the Senior Citizens Act? The said judgment also deals with an imaginary claim over a property and proceeds to confirm the views as were decided in the case of Ashish Vinod Dalal & ors. Vz. Vinod Ramanlal Dalal & Ors. decided in Writ Petition No.2400 of 2021 by this Court on 15.09.2021. In essence, the Division Bench whilst taking the view which originated from a case in Delhi High Court in the case of Sunny Paul vs. State of NCT of Delhi, in paragraph 23 of the judgment passed by this Hon’ble Court, simplifies and substantiates as under; a. A Senior Citizen has a right to approach the Tribunal; b. A Senior Citizen has to only establish through pleadings and appropriate documents that the Senior Citizen is a victim of harassment, exploitation, neglect, physiological disturbances, [physiological means and all possible facets to safeguard their physical and mental health as is recognized under Section 4 (sub section 2) and Section 4 (sub section 3)]. The concept of normal life under these provisions would have a deeper meaning which stems out from the fundamental right of livelihood which is guaranteed under Article 21 of the Constitution of India. The statement and objects reflects in the intention behind the legislation which also requires a suitable mechanism for protection of life and property of older persons and thus invocation of the Senior Citizens Act is the remedy for seeking a relief on the basis of which the statute provides. 14. To substantiate his submission that under Section 23 of the Act, a senior citizen can seek eviction, he relied upon the following a] Dattatrey Shivaji Mane Vs. Lilabai Shivaji Mane, Writ petition (St.) No.10611 of 2018 decided on 18.07.2018; b] S. Vanitha Vs. Deputy Commissioner, Bengaluru Urban District and others, Civil Appeal No.3822 of 2020 [arising out of SLP (C) No.29760 of 2019] decided on 15.12.2020; c] Ashish Vinod Dalal and others Vs Vinod Ramanlal Dalal and others, Writ petition No.2400 of 2021 decided on d] Shefali Sanjiv Patel and another Vs. Jyotiben Manubhai Patel and another, Writ petition No.2441 of 2021 decided on e] Shweta Shetty (supra). 15. Mr. Yadav, learned counsel appearing for Devang Shah has tendered across the Bar submissions on behalf of the petitioner, which is taken on record. 15.1. He submits that Sheetal Shah has filed the present Petition against the impugned order passed by the Tribunal on an application filed by Nalini Shah and Mahendra Shah under the said Act. Devang Shah is a formal party because there is no any prayer in the Petition 15.2. Learned counsel further submits that Devang Shah is the son of Nalini Shah and Mahendra Shah and the husband of Sheetal Shah. Devang Shah married Sheetal Shah in the year 1994 and during the first 24 years of marriage, there was no NC / complaint against each other, in any other Court of law or in any police station. Suddenly, in May 2018, Sheetal Shah lodged an FIR with the Juhu Police Station and subsequently, filed a Domestic Violence Case, in the Andheri Metropolitan Magistrate Court, which was subsequently transferred to the Family Court at Bandra, Mumbai. He submits that the family disputes started between Sheetal Shah and Devang Shah for reasons best known to Sheetal Shah only and that she had deliberately implicated his mother in false cases in various forums and started harassing him and his 15.3. It is submitted that Devang Shah is ready to vacate the premises as per the Tribunal’s order alongwith Sheetal Shah. After passing of the order by the Tribunal, Sheetal Shah started harassing his mother Nalini Shah physically and mentally, therefore, various NCs are lodged by his mother against Sheetal Shah and he is a witness for that. It is further submitted that Sheetal Shah has been deliberately damaging and destroying Devang Shah’s parent’s house, threatening Nalini Shah to the extent that since over 3 years Devang Shah and Nalini Shah are dependent on outside food and cannot even cook in the kitchen due to the harassment caused by Sheetal Shah. 15.4. It is submitted that, after passing of the order by the said Tribunal, Sheetal Shah became aggressive and has broken doors, windows and glasses of the property; switches and furniture items have been stolen by her and loose electric wires are hanging with risk of fire. It is further submitted that Sheetal Shah goes to the extent of getting and breaking eggs in the house, to hurt their sentiments as they are Jains by religion, and that they do not get or have eggs, being pure vegetarians. Continuously threats are being given by Sheetal Shah to Nalini Shah, with an intent to harass her and eventually grab her property. 15.5. It is submitted that Devang Shah is sandwiched between Sheetal Shah and Nalini Shah and Devang Shah is ready to vacate the house along with Sheetal Shah to bring some peace to his family and safeguard the life of his aged mother - Nalini Shah. He further submits that there is no way Nalini Shah can stay with Sheetal Shah in her own house and Devang Shah would not like to take any chance for any further crime to be committed by Sheetal Shah, who was violent on many occasions earlier. It is submitted that father of Devang Shah, late Mahendra Shah passed away on 08.08.2019 succumbing to harassment by Sheetal Shah and therefore, Devang Shah does not want to lose his mother, with an undignified death in her own house. 15.6. It is submitted that Devang Shah is a law abiding citizen and he is ready to vacate the premises as per the Tribunal’s order. He once again submits that there is no any substantive prayer made in the petition against Devang Shah. 16. We have heard learned counsel appearing for respective parties at length. With their able assistance, we have carefully perused the pleadings and the grounds taken in the petition along with the annexures, the order passed by the Tribunal, written submissions filed by the counsel for Sheetal Shah, Nalini Shah and Devang Shah, original record summoned from the office of respondent No.1 and the judgments cited across the Bar. 17. Though various contentions are raised by the parties, touching various proceedings pending before various Forums and also the criminal cases filed against each other, we deem it appropriate to confine the adjudication of the present petition keeping in view the substantive prayer therein and the issues dealt with and answered by the Tribunal. 18. Before we proceed to discuss the issues considered and answered by the Tribunal and the correctness of the impugned order passed by the Tribunal, it would be apt to make reference to the statement of objects and reasons for bringing the said Act / legislation into force. The statement of objects and reasons stated in the preamble of the Act reads “ An Act to provide for more effective provisions for the maintenance and welfare of parents and senior citizens guaranteed and recognized under the Constitution and for matters connected therewith or incidental thereto. Be it enacted by Parliament in the Fifty-eighth Year of Statement of Objects and Reasons.- Traditional norms and values of the Indian society laid stress on providing care for the elderly. However, due to withering of the joint family system, a large number of elderly are not being looked after by their family. Consequently, many older persons, particularly widowed women are now forced to spend their twilight years all alone and are exposed to emotional neglect and to lack of physical and financial support. This clearly reveals that ageing has become a major social challenge and there is a need to give more attention to the care and protection for the older persons. Though the parents can claim maintenance under the Code of Criminal Procedure, 1973, the procedure is both time- consuming as well as expensive. Hence, there is a need to have simple, inexpensive and speedy provisions to claim maintenance for parents. 2. The Bill proposes to cast an obligation on the persons who inherit the property of their aged relatives to maintain such aged relatives and also proposes to make provisions for setting-up oldage homes for providing maintenance to the indigent older persons. The Bill further proposes to provide better medical facilities to the senior citizens and provisions for protection of their life and property. 3. The Bill, therefore, proposes to provide for:- (a) appropriate mechanism to be set up to provide need-based maintenance to the parents and senior citizens; (b) providing better medical facilities to senior (c) for institutionalisation of a suitable mechanism for protection of life and property of older persons; (d) setting up of oldage homes in every district.” 19. In Section 2 (a), “children” is defined and includes son, daughter, grandson and grand-daughter but does not include a minor. Section 2(b) defines “maintenance” to include provisions for food, clothing, residence and medical attendance and treatment. Section 2(d) defines “parent” to mean father or mother whether biological, adoptive or step father or step mother, as the case may be, whether or not the father or the mother is a senior citizen. Section 2(f) provides for definition of “property” to mean the property of any kind, whether movable or immovable, ancestral or self-acquired, tangible or intangible and includes rights or interests in such property. Section (g) defines “relative” to mean any legal heir of the childless senior citizen who is not a minor and is in possession of or would inherit his property after his death. Section 2(h) defines “senior citizen” to mean any person being a citizen of India, who has attained the age of sixty years or above; As per Section 2(j), “Tribunal” means the Maintenance Tribunal constituted under section 7 and under Section 2(k), “welfare” means provision for food, health care, recreation centres and other amenities necessary for the senior citizens. 20. The important section is Section 3, which reads as under:- “3. Act to have overriding effect.- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act, or in any instrument having effect by virtue of any enactment other than this Act.” 20.1. Section 3 would make it abundantly clear that the provisions of this Act shall have overriding effect on the provisions of any other Acts, which are inconsistent with the provisions of the said Act. 21. There is a provision under Section 4, which states about maintenance of parents and senior citizens, which reads as under:- “4. Maintenance of parents and senior citizens.- (1) A senior citizen including parent who is unable to maintain himself from his own earning or out of the property owned by him, shall be entitled to make an application under section 5 in case of— (i) parent or grand-parent, against one or more of his (ii) a childless senior citizen, against such of his relative referred to in clause (g) of section 2. (2) The obligation of the children or relative, as the case may be, to maintain a senior citizen extends to the needs of such citizen so that senior citizen may lead a normal life. (3) The obligation of the children to maintain his or her parent extends to the needs of such parent either father or mother or both, as the case may be, so that such parent may lead a normal life. (4) Any person being a relative of a senior citizen and having sufficient means shall maintain such senior citizen provided he is in possession of the property of such citizen or he would Provided that where more than one relatives are entitled to inherit the property of a senior citizen, the maintenance shall be payable by such relative in the proportion in which they would inherit his property.” 22. In Section 5, there is a provision for filing the application for maintenance. The said application can be filed taking recourse to Section 4 of the said Act by a senior citizen or a parent, as the case may be, or if he is incapable, by any other person or organization authorized by him or the Tribunal may take cognizance suo motu. In Section 6, jurisdiction and procedure has been mentioned. Section 8 provides for summary procedure in case of inquiry. For the purpose of such enquiry, sub- section (2) of section 8 states that “The Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed; and the Tribunal shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).” 23. Section 9 speaks about the order for maintenance. Section 16 provides for appeals. However, such appeal can be filed by any senior citizen, or a parent, as the case may be, aggrieved by an order of a Tribunal within sixty days from passing such order. Section 19 provides for establishment of oldage homes. Section 20 provides for medical support for senior citizens. Section 21 provides for measures for publicity, awareness, etc. for welfare of senior citizens. Section 22 provides for authorities, who may be specified for implementing the provisions of the Act. Section 23 provides for transfer of property to be void in certain circumstances. 24. The said Act has been enacted with a laudable object to provide for more effective provisions, for the maintenance and welfare of parents and senior citizens, as guaranteed and recognized under the Constitution and other Statutes. In the light of the aforementioned statement of objects and reasons, so also the provisions recorded hereinabove, we proceed to consider whether the Tribunal, while passing the impugned order, has framed appropriate issues and answered the same keeping in view the provisions of the Act and the Rules thereunder, so also the documents and materials placed on record. 25. The Tribunal framed the following four issues of enquiry, which “1) Are the applicants capable of supporting themselves 2) Is there any evidence that the respondent is not taking proper care of the applicant and is causing mental and 3) Can the request made by the applicant be accepted? 4) What will be the orders?” 26. The Tribunal, after adverting to the contentions raised by the parties and documents placed on record, observed that at the relevant time, applicant No.1 - Nalini Shah was 77 years old and applicant No.2 - Mahendra Shah was 79 years old. It is also observed that the said applicants are not in a position to work. The Tribunal observed that though it is contended by Sheetal Shah, that Nalini Shah is having share trading business and also Mahendra Shah has business of diamond and jewellery, Sheetal Shah has not submitted any evidence before the Tribunal to that effect. It is further observed, that even if the said contention of Sheetal Shah is accepted, in that case also, considering the age of Nalini Shah and Mahendra Shah, it cannot be said that they are capable of supporting themselves from their own earnings. It is also observed that the family members viz., Devang Shah and Sheetal Shah should treat Nalini Shah and Mahendra Shah with kindness, consideration and respect and that they should provide them basic necessities for a peaceful life. It is also observed that the kindness, consideration and respect cannot be bought with money. It is the responsibility of Devang Shah and Sheetal Shah being son and daughter- in-law of Nalini Shah and Mahendra Shah to pay attention to the daily needs of the applicants and to try their best to meet those needs. Nalini Shah and Mahendra Shah are dependent upon Devang Shah and Sheetal Shah for their daily necessities, mental support and care and accordingly, issue No.1 is answered in the affirmative. 27. Upon perusal of the original record of the proceedings instituted by Nalini Shah, we are in respectful agreement with the said observations made by the Tribunal while answering issue No.1 except to the extent that, it holds Sheetal Shah, (daughter-in-law of Nalini Shah) alongwith Devang Shah, liable to pay maintenance. 28. We have carefully perused the observations made by the Tribunal while answering issue No.2 i.e., whether there is any evidence that Shetal Shah is not taking proper care of Nalini Shah and Mahendra Shah and is causing mental and physical harassment to them. We have no doubt in our mind, that the observations made and the findings recorded by the Tribunal, that Sheetal Shah and Devang Shah are not taking proper care of the applicants and causing mental and physical harassment to Nalini Shah and Mahendra Shah, are in consonance with the documents on record. We have also carefully perused the various complaints filed by Nalini Shah and Sheetal Shah, and we find that there is no peace and harmony in the house. There is unrest and also there is a mental and physical harassment to the old aged parents of Devang Shah. While exercising writ jurisdiction, it is not desirable to undertake exercise of disputed questions of fact, and more particularly, when we find that the observations / findings recorded by the Tribunal, while answering issue No.2, that Sheetal Shah and Devang Shah in the said application are causing mental and physical harassment to Nalini Shah and Mahendra Shah, are made keeping in view the material placed on 29. The Tribunal, while discussing issue No.3 i.e., “Can the request made by the applicant be accepted?”, has made reference to various documents placed on record by the parties and in particular documents in relation to the said residential premises wherein, the parties are residing, and has reached a conclusion, that the residential premises is in the name of Mahendra Shah, who has inherited the same, from his parents. The Tribunal has also considered the effect of giving such property as a gift by Mahendra Shah to Devang Shah and after adverting to the provisions of Section 23 of the said Act, which provides for protection of life and property of senior citizens and as such, has correctly reached the conclusion, that the applicants’ (Nalini and Mahendra Shah) request for exclusion of Devang Shah from the suit property can be granted. It would be relevant to reproduce hereinbelow the provisions of Section 23(1) of the said Act, which reads as under:- “23. Transfer of property to be void in certain circumstances.- (1) Where any senior citizen who, after the commencement of this Act, has transferred by way of gift or otherwise, his property, subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor and such transferee refuses or fails to provide such amenities and physical needs, the said transfer of property shall be deemed to have been made by fraud or coercion or under undue influence and shall at the option of the transferor be declared void by the Tribunal.” 30. The Tribunal, ultimately concluded, that Sheetal Shah and Devang Shah are not taking proper care of Nalini Shah and Mahendra Shah, but are causing mental and physical harassment to them. As already observed, the age of Nalini Shah and her husband Mahendra Shah was 77 and 79 years respectively, at the relevant time, when they preferred the application. It is brought on record by the parties, that during the pendency of the petition, Mahendra Shah died. At present, Nalini Shah, wife of Mahendra Shah, is aged about 82 years. On couple of dates of hearing before us, she attended Court proceedings sitting on a wheel chair, that itself shows, that she is certainly dependent upon Sheetal Shah and Devang Shah for physical and mental support. 31. After answering the issues framed, the Tribunal accepted the case of Nalini Shah and Mahendra Shah and directed Devang Shah and Sheetal Shah together to pay Rs.25,000/- (Rupees Twenty Five Thousand only) per month to Nalini Shah and Mahendra Shah for their maintenance, subsistence and medical expenses, by depositing the said amount, in the bank accounts of Nalini Shah and Mahendra Shah. 32. We have reservations about such direction to Sheetal Shah to pay maintenance amount to Nalini Shah. As already observed, in Section 2(a), ‘children’ include son, daughter, grandson and grand-daughter and there is no reference to the daughter-in-law. Be that as it may, upon perusal of the original record, we do not find a single document showing the earnings of Sheetal Shah. In that view of the matter, the Impugned Order, to the extent that it directs Sheetal Shah to pay Rs.25,000/- alongwith her husband Devang Shah to Nalini Shah and Mahendra Shah, cannot be legally sustained. However, so far direction given to Devang Shah to pay the said maintenance amount to Nalini Shah, the same is legally sustainable. 33. The Tribunal has directed Devang Shah and Sheetal Shah to handover the possession of entire residential premises i.e., Saprem, Plot No.20, 3rd Road, Juhu Scheme, Vile Parle (West), Mumbai - 400 056 to Nalini Shah and Mahendra Shah (since deceased) in a peaceful manner. In our opinion, said direction given by the Tribunal is legally and factually sustainable, in as much as, when the application was decided by the Tribunal, the subject property stood in the name of husband of Nalini Shah, namely, Mahendra Shah. Relying upon the various documents placed on record including criminal complaints and other materials, the Tribunal has correctly reached a conclusion, that there is a continuous mental as well as physical harassment to Nalini Shah and Mahendra Shah (since deceased). 34. In that view of the matter, we are of the opinion that the view taken by the Tribunal, after adverting to the material placed on record, is legally as well as factually sustainable. Therefore, we confirm the order passed by the Tribunal except the direction to Sheetal Shah to pay jointly with Devang Shah, maintenance of Rs.25,000/- to Nalini Shah and Mahendra Shah. Therefore, the direction to Sheetal Shah to that extent is quashed and set aside. However, as already observed, the son of Nalini Shah namely, Devang Shah is obliged to pay the said maintenance amount to Nalini Shah. 35. The Tribunal in clause (3) of the operative order has observed that, within 15 days from the date of receipt of the order, Sheetal Shah and Devang Shah shall handover the entire possession of the residential premises in question, to Nalini Shah and Mahendra Shah (deceased) in a peaceful manner and at the same time, observed that Sheetal Shah and Devang Shah, should make separate arrangements for their own accommodation elsewhere. Keeping in view the said direction, we are of the opinion that Devang Shah, being the husband of Sheetal Shah is obliged to provide separate accommodation to Sheetal Shah and her sons 36. With the above observations, we dismiss the writ petition. 37. Rule is discharged accordingly. 38. Since the interim relief is operating till date, we deem it appropriate to grant further six weeks’ time to the petitioner, to act in compliance with the directions contained in clause (3) of the operative part of Tribunal’s order i.e. Sheetal Shah and Devang Shah should hand over the entire possession of the residential premises in question, to Nalini Shah in a peaceful manner. In the said clause (3), the Tribunal has also directed Sheetal Shah and Devang Shah to make separate arrangements for their own accommodation elsewhere. As already observed in para 35 hereinabove, Devang Shah (respondent No.4), being husband of Sheetal Shah and thus guardian of two sons is legally obliged to provide them accommodation befitting his status, income and assets. 39. The observations made hereinabove, are restricted to adjudication of the present proceedings and will have no bearing on the proceedings pending between the parties and the orders passed therein, by the appropriate courts of competent jurisdiction or forum provided under the 40. All concerned parties to act upon ordinary copy of this order duly authenticate by court Sheristadar.
The Bombay High Court has said that a daughter-in-law cannot be ordered to pay financial support to her sick mother-in-law, especially if there's no proof of the daughter-in-law's income. The High Court had doubts about telling the daughter-in-law to pay money to her mother-in-law. The court also added that after looking at the original court documents, they found no papers showing the daughter-in-law's earnings. The court pointed out that a law called the Maintenance and Welfare of Parents and Senior Citizens Act of 2007, which defines 'children,' lists sons, daughters, grandsons, and granddaughters. However, it does not include a daughter-in-law. Because of this, the judges, SS Shinde and Revati Mohite Dere, cancelled only part of the order made by the special court for Parents and Senior Citizens. But the court did agree with the part of the order that told the son and daughter-in-law to leave the fancy Juhu house, which was based on the mother's complaint. However, the judges ordered the son to pay the full Rs 25,000 each month to his mother, an amount decided by the special court. By doing this, the High Court freed the daughter-in-law from having to pay any money. The court also told the husband, who is a diamond merchant, to arrange a place for his wife and children to live outside the family house. The judges said that a son, as a husband and the person responsible for his two children, is legally required to provide them with a place to live that matches his wealth, earnings, and possessions. Facts of the case An elderly couple, 77 and 79 years old, went to the special court for help. That court had told their son and daughter-in-law to leave their house and together pay the mother Rs 25,000 a month for her support. The daughter-in-law then went to the High Court to challenge this order from 2019. The father-in-law died while the court case was happening. The daughter-in-law claimed that the house was family property that her father-in-law had received from his ancestors. She also said her husband was paying the rent for the house. Her lawyer, Yasmin Tavaria, argued that in 2019, another court, the Family Court, had issued an order stopping the husband, or anyone working for him, from entering the family home. She also stated that the special court for Senior Citizens made its order without hearing any proof. The mother-in-law's lawyer, Vivek Kantawala, argued that his client faced constant mental and physical abuse, and because of this, the special court's order should be supported. He mentioned that the daughter-in-law had tried to upset their religious feelings by throwing eggs, even though she knew the family followed Jainism. He also said that the Family Court's order was made without the mother-in-law being present because she was not involved in that case. First, the court noted that Section 3 of the Senior Citizens Act states that this law is more important than any other law that conflicts with it. This meant that the special court's orders would remain valid, even if the Family Court had made a different decision. The court agreed with the special court's comments that "family members, like the son and daughter-in-law, should treat the mother-in-law with kindness, thought, and respect, and provide her with basic needs for a calm life. The court also noted that kindness, thought, and respect cannot be bought with money." The court also stated that it was the couple's job to pay attention to the mother-in-law's daily needs and do their best to fulfill them. The court recognized that "there is trouble and also mental and physical abuse happening to the elderly parents." The judges pointed out that the mother had come to court many times in a wheelchair. Based on Sections 3 and 23 of the Act, which protect the lives and property of senior citizens, the High Court observed that the special court was right to decide that the senior citizen's request to remove her son's name from the disputed property could be allowed, giving her the help she sought.
. This Bench has been specially constituted to hear the petitioner’s aforesaid petition and other petitions, by the Hon’ble Chief Justice. Both the members of this Bench preside over their respective Benches and have to disturb their regular boards, to assemble only for these matters. 1.1. On 27th April 2022, we heard the learned counsel for the parties from 4:30 p.m. to 7:00 p.m. and closed the matter for orders. 1.2. This Writ Petition under Article 226 of the Constitution of India is filed by the petitioner thereby taking an exception to the order dated 16.08.2019 passed by respondent No.1 - Presiding Officer of the Maintenance and Welfare of Parents and Senior Citizens’ Tribunal (for 1.3. The only substantive prayer in the petition reads as under:- ii. That this Hon’ble Court be pleased to call for the records and proceedings from the Respondent No.1 and after perusing the legality and propriety of the impugned order dated 16.08.2019 passed by the Respondent No.1, this Hon’ble Court be pleased to issue a Writ of Certiorari and/or any other appropriate Writ, order or direction under Article 226 of the Constitution of India and quash and set aside the impugned order dated 16.08.2019 passed by the Respondent No.1 at 2. During the pendency of this petition, the Division Bench of this Court (Coram: S. C. Dharmadhikari and G. S. Patel, JJ. ), by order dated “5. (c) Since it is stated that the Petitioner may be dispossessed tomorrow and by using force, we direct that until further orders of this Court, the operative direction No.3 which directs the Petitioner to hand over vacant and peaceful possession of the premises to her in-laws be not acted upon or implemented.” 2.1. The aforesaid direction / interim order is in force till date. 3. Background facts leading to the filing of this petition are as 3.1. Respondent No.1 / non-applicant has passed the order (impugned in the present petition) in the proceedings instituted by Smt. Nalini Mahendra Shah - respondent No.2 herein and her husband - Mahendra Shah. Since during the pendency of the present writ petition, husband of respondent No.2 died, with the permission of the Court, his name has been deleted from the array of the respondents. Respondent No.4 - Mr. Devang Shah is the husband of the petitioner as also the son of respondent No.2. Present petitioner - Ms. Sheetal Shah is the daughter- in-law of respondent No.2 and respondent No.3 (deleted). 4. For the sake of convenience, parties shall be referred to by their names and not by their status before the Tribunal or this Court. 5. Nalini Shah and her husband Mahendra Shah filed the application No.SDO/SCNo.SDO/JNVMP/Desk-6/SR-38 of 2018 before the Tribunal constituted under the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. Briefly stated contentions of the applicants therein viz., Nalini Shah and Mahendra Shah, were as under:- a. that, they are staying at Saprem, Plot No.20, 3 rd Road, Juhu referred to as the ‘residential premises’). b. Devang Shah is the only son of Nalini Shah and Mahendra Shah and Sheetal Shah is their daughter-in-law. They all are residing in the aforesaid residential premises. c. Nalini Shah is the housewife and her husband Mahendra Shah (deceased) was employed in the renowned business of diamond and diamond jewellery at Opera House. Mahendra Shah retired from the said business in the year 2016 and he had no other residential premises, save and except the residential premises at Saprem, Plot No.20, 3 rd Road, Juhu d. Devang Shah is the employee of Supergems India Private Limited and Sheetal Shah is working as a fashion designer. Both of them are receiving handsome salary. e. the aforesaid residential premises is in the name of Mahendra Shah and Nalini Shah. f. It was alleged that Sheetal Shah and Devang Shah are unable to look after Nalini Shah and Mahendra Shah and from last one year, they are not looking after necessities of life of Nalini Shah and Mahendra Shah. From January - February 2017 till the filing of the application, they were harassed in the said residential premises though they are the owners of the said house. Sheetal Shah and Devang Shah, both, are torturing Nalini Shah and Mahendra Shah, physically as well as mentally. g. Nalini Shah is suffering from asthma, vergio, back pain and leg pain. 5.1. In the aforesaid background, facts and circumstances, the said application was filed by Nalini Shah and her husband Mahendra Shah. 6. From a perusal of the original record summoned from the office of respondent No.1 before whom the proceedings were instituted by Nalini Shah and Mahendra Shah, it appears that various criminal complaints have been filed by both of them before the police authorities thereby making serious allegations, particularly against Sheetal Shah. The tenor of the said allegations is that Sheetal Shah and her husband Devang Shah have made their life miserable and there is a continuous physical and mental torture / harassment to them in their old age and that too in their own house. 7. Respondent No.1, before whom the application was filed by Nalini Shah and Mahendra Shah, had issued show cause notice to Sheetal Shah and Devang Shah. 8. Pursuant to the said notice, Sheetal Shah filed her detailed reply with annexures contending therein, that she has also filed various criminal complaints for physical and mental harassment by her mother- in-law and father-in-law i.e., Nalini Shah and Mahendra Shah respectively, to her and her two children. It appears that to the said complaints, Sheetal Shah had also annexed petition filed by her before the Family Court, the orders passed thereon and the other proceedings initiated by her, under the Protection of Women from Domestic Violence 8.1. Sheetal Shah also stated in her reply that the application filed by Nalini Shah and Mahendra Shah suffered from suppression of important facts. She, therefore, prayed for rejection of the application at the threshold. It is stated that the residential premises in question is a joint household where Nalini Shah, Mahendra Shah, Devang Shah and her two precious children are residing. The said residential premises is the part of Navyug Co-operative Housing Society Limited. Mahendra Shah’s father namely, P. G. Shah had procured the said residential premises and after his and his wife’s death, the said residential premises are in the joint ownership of the remaining members. It is stated that Devang Shah has been paying rent towards the said residential premises. It is further stated that Mahendra Shah and Devang Shah are working together in the family business of Diamond Trading and Jewellery (Ridham and Co.), share trading and land estate and that they have concealed these facts. 8.2. It is alleged in the said reply that Mahendra Shah and Devang Shah have transacted in shares to the tunes of several crores and traded in diamonds under the name of Sheetal Shah without her knowledge or approval. It is further alleged that Nalini Shah, Mahendra Shah and Devang Shah have committed grave economical crimes against her. There are further allegations made in the said reply against Nalini Shah, Mahendra Shah and Devang Shah. 8.3. There is a reference to the proceedings instituted by Sheetal Shah under the Protection of Women from Domestic Violence Act, 2005. It is alleged that in the said pending proceedings, her husband Devang Shah and his advocates have been forging her signatures. There are other allegations made against her husband - Devang Shah. Along with the written statement and various documents, the photographs showing the incidents occurred in and around the house and the injuries suffered by Sheetal Shah as also the medical certificates to that effect have been annexed. It is stated that at the relevant time, Nalini Shah and Mahendra Shah were residing permanently in Lonavala. However, the said fact has been suppressed by Nalini Shah and Mahendra Shah in their application filed before the Tribunal. It is stated that the residential premises is a HUF (Hindu Undivided Family) property, and that Nalini Shah and Mahendra Shah have permanently moved to Lonavala and Mahendra Shah, at the relevant time, moved the petition before the High Court that he be declared as co-owner of the residential premises in question, which proves beyond doubt that Mahendra Shah was not the co-owner of the said residential premises, till the date of filing of proceedings before the High Court, seeking such a declaration. 9. Since Sheetal Shah has filed a very detailed reply to the said proceedings, we may refer to the said reply, the averments in the application and documents placed on record by the parties in the said proceedings instituted before the Tribunal as and when we deem it 10. Respondent No.1 - Tribunal allowed the aforesaid application filed by Nalini Shah and Mahendra Shah and directed Sheetal Shah and Devang Shah together to pay Rs.25,000/- (Rupees Twenty Five Thousand only) per month to Nalini Shah and Mahendra Shah for their maintenance, subsistence and medical expenses by depositing the said amount in the bank accounts of Nalini Shah and Mahendra Shah. Sheetal Shah and Devang Shah were directed to handover the possession of the entire residential premises to Nalini Shah and Mahendra Shah in a very peaceful manner within 15 days from the date of receipt of the order. Devang Shah and Sheetal Shah were directed to make separate arrangement for their accommodation elsewhere. It was further observed that if Devang Shah and Sheetal Shah failed to implement the order on their own, Nalini Shah and Mahendra Shah were at liberty to contact the police station immediately for execution of the order. 11. Being aggrieved by the said order, the present writ petition is 12. Ms. Yasmin Tavaria, learned counsel appearing for Sheetal Shah submitted that Section 2(a) of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (hereinafter referred to as the ‘Senior Citizens Act’) defines the category of persons under the caption ‘children’ which would include son, daughter, grandson and grand- daughter but does not include a minor. It is submitted that a bare perusal of the said provision would make it clear that Sheetal Shah, who is a daughter-in-law of Nalini Shah and Mahendra Shah, is not covered under the said definition, and therefore, she is not liable to pay maintenance to Nalini Shah. It is submitted that the proceedings instituted by Sheetal Shah are pending before the Family Court at Bandra, which are the substantive proceedings in which an order is passed, directing Devang Shah or his servants, agents or any other person on his behalf not to prevent Sheetal Shah to enter the matrimonial house, her stay in the bed-room in which she is residing and using the kitchen. Learned counsel invites our attention to the said order dated 03.09.2019 passed by the Family Court. 12.1. It is submitted that the order impugned in the petition was received by Sheetal Shah on 05.09.2019 though the said order was passed on 16.08.2019. Section 8 of the said Act sets out the procedure to be followed in case of enquiry. Sub-clause (2) clearly indicates that the Tribunal shall have all the powers of a civil court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses. It is submitted that though the Tribunal framed the issues, the findings recorded are without any evidence on record. 12.2. It was submitted that Nalini Shah was not having any right to move the Tribunal and that she was not having any right to evict Sheetal Shah from the residential premises. Divorce proceedings are still pending and Family Court has passed order on 03.09.2019 thereby directing Devang Shah not to prevent Sheetal Shah from entering the matrimonial house. She submitted that interim orders speak of the immense wealth of Devang Shah and his parents. 12.3. It is submitted that the Tribunal closed the matter for order on 16.04.2019. However, the order was passed in the month of August, 2019, after several months and after Mahendra Shah, father-in-law of Sheetal Shah had expired. It is submitted that the Division Bench of this Court (Coram : S. C. Dharmadhikari and G. S. Patel, JJ.) has stayed the order passed by the Tribunal. 12.4. It is further submitted that Nalini Shah and Mahendra Shah have submitted documents under oath before the Tribunal to the effect that the matrimonial residence i.e., the residential premises will be inherited by Devang Shah, after the death of Mahendra Shah. 12.5. It is submitted that the entire case papers filed by Nalini Shah and Mahendra Shah in the Tribunal, has been annexed to the petition. The property nomination letter duly accepting Devang Shah as a nominee is also annexed. The R.T.I. (Right to Information) copy of the same is also annexed to the additional compilation of documents. The same is signed by Nalini Shah under oath before the Tribunal, whereby, it is stated that the Society had accepted the nomination declaration approving Devang Shah as a sole nominee of Mahendra Shah (since deceased) for the right, title and interest in the share certificate of Plot No.20 in Navyug Society. She submitted that the eviction orders against Sheetal Shah were rightfully stayed. 12.6. It is submitted that Devang Shah neither filed a reply before the Tribunal nor did he oppose the relief claimed by Nalini Shah and Mahendra Shah, and that Nalini Shah and Devang Shah are acting in collusion with a common intention of causing and ousting Sheetal Shah from her matrimonial house, despite the fact, that substantive proceedings i.e., divorce proceedings were pending before the Family Court at Bandra, in which Sheetal Shah had succeeded in getting interim orders against Nalini Shah and Devang Shah, thereby, preventing them from evicting Sheetal Shah from the matrimonial house. It is submitted that Nalini Shah and Mahendra Shah have a property in Lonavala and they were residing there permanently, before they arrived at the matrimonial house. She submitted that Devang Shah and his mother Nalini Shah have deputed bouncers, who are residing in the said residential premises and they have assaulted and abused Sheetal Shah and her sons making their lives, living hell. 12.7. Ms. Tavaria, learned counsel invites our attention to the compilation of documents to demonstrate that Nalini Shah and Mahendra Shah are / were residing in the house at Lonavala. The photographs of the said house in Lonavala, which according to Sheetal Shah is approximately 4000 sq.ft., are placed on record along with the compilation. She also invites our attention to a copy of the ration card at Annexure-K and submits that the names of Sheetal Shah and her sons have been mentioned in the ration card. It is submitted that Devang Shah has transferred huge amount in the account of Nalini Shah. 12.8. Learned counsel invites our attention to the written submissions, which are placed on record and submits that the said residential premises wherein Sheetal Shah and her sons are residing, is a HUF property, and that Devang Shah is holding on to all the wealth, bequeathed to her two sons from the Will of late Mahendra Shah. She, therefore, prays that the petition deserves to be allowed. 13. Mr. Vivek Kantawala, learned counsel appearing for Nalini Shah invites our attention to the list of dates and events mentioned in the written submissions, which are placed on record and submits that there is continuous mental and physical harassment to Nalini Shah and Mahendra Shah (prior to his death) by Sheetal Shah and her husband Devang Shah, that Sheetal Shah and Devang Shah, in collusion started harassing Nalini Shah and her husband Mahendra Shah, from the year 2017-18, and that they have made the life of Nalini Shah miserable and have created a situation, wherein Nalini Shah cannot live peacefully in her own house. 13.1. It is submitted that the order of the Family Court was passed in the absence of Nalini Shah as the proceedings before the said Court were between the husband and wife i.e., Devang Shah and Sheetal Shah respectively, and therefore, the said order is not binding upon Nalini Shah. It is submitted that Sheetal Shah had suppressed the fact, that proceedings were pending against her, before the Senior Citizens Forum in the Family Court. She also remained absent on couple of dates of hearing before the said Forum though she was duly served. He submitted that a perusal of the impugned order passed by the Tribunal would show that the proceedings were properly served upon Sheetal Shah and Devang Shah, however, Devang Shah chose not to file a written statement, whilst, Sheetal Shah filed a detailed written statement. The impugned order under issue No.1 states that the law that has been promulgated is for the purpose of taking care of the senior citizens who cannot look after themselves. The impugned order further proceeds to record that Sheetal Shah has been unable to furnish any proof that the senior citizens are doing business. Hence, on the basis of preamble of the said Act, a finding is recorded against issue No.1, taking into consideration the age of the senior citizens and their inability to earn, is 13.2. He submitted that with regard to issue No.2, the Tribunal has observed that atrocities that have been meted out to the senior citizens from February 2018 and various complaints made to the police authorities. Cross-complaints filed before the police authorities, establish the disputes and the atrocities have been recognized by the Tribunal and have been reproduced in the impugned order under issue No.2. He submitted that the impugned order recognizes the relationship between Devang Shah and Sheetal Shah, and recognizes the demeanour of Sheetal Shah, at the time of arguments. Learned counsel submits that the Tribunal has also recognized that the plea of the senior citizens living in Lonavala, has not been substantiated with any proof and thus proceeded to give an affirmative finding against issue No.2. 13.3. Mr. Kantawala submitted that the Tribunal also recognized the powers vested in it under Section 23 of the said Act and considered the plea of Sheetal Shah who had “a claim in future time” on the property, which even assuming for the sake of argument would be a submission, then it is necessary to note that such right to Sheetal Shah only devolves to her husband Devang Shah, whose eviction also has been sought by Nalini Shah and Mahendra Shah. 13.4. He submitted that the preamble for the promulgation of the Senior Citizens Act, was on the basis that a noticeable trend was seen in the society where traditional norms and values of providing care for the elderly was given a go-by. In particular, widows were compelled to spend their sunset years all alone and were exposed to emotional and physical as well as financial neglect which caused the imbalance in the social sphere. Though there are other provisions available, the Bill, which proposed the Senior Citizens Act, was with an endeavour to cast an obligation on persons who inherit property to maintain such aged senior citizens. The preamble of the said Act was also on the touchstone of proper medical facility and protection to the life and property of senior citizens. Hence, to achieve such objectives, the promulgation of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 was brought into force on and from 29.12.2007. 13.5. Mr. Kantawala submitted that the said Act, is an Act with summary procedure. At various levels, there has been a contention raised as to would it be appropriate to carry out a summary procedure without leading evidence. The submissions on various quarters of leading evidence itself vitiates the purpose and objects of the said Act. The purpose and object of the said Act was not to make people who are in their 70’s and 80’s to lead evidence, to cross-examine or to be cross- examined and wait endlessly for years to come for finality of such proceedings. The purpose and object of the said Act was only to aid “sunset years of senior citizens as otherwise if this procedure was to be followed then the Civil Courts were already equipped with such mechanizms.” However, to give speedy disposal, the objective of the Act, was to carry out proceedings in a summary manner. Moreover, legal representation is not permitted before proceedings under the said Act, which in itself shows that mere pleading and appropriate averments as well as supporting documents and submissions are only necessary for the purposes of passing orders in a summary manner under the said Act. He submitted that the Tribunal is a creature of the statute, hence like the DRT and CEGAT, the Tribunal is to only decide on issues in a summary manner. In support of these submissions, he relied upon the judgment of the Division Bench of this Court (Coram: G. S. Patel and Madhav J. Jamdar, JJ.) in the case of Shweta Shetty Vs. State of Maharashtra decided on 25.11.2021 in Writ Petition (L) No.9374 of 2020, and more particularly paragraph 18 thereof, relevant portion thereof reads thus, “18. … We do not believe that it is the statutory intent that the harassment towards Senior Citizens should continue while the Tribunal is flooded or inundated with some evidence or the other only to prolong or delay matters. The one thing that Senior Citizens do not have the benefit or luxury is of time. It is not on their side, and every days delay before a Tribunal like this hurts Senior Citizens exponentially more than the younger generation. …” 13.6. He submitted that the judgment in Shweta Shetty (supra) also dealt with the issue as to whether an eviction is contemplated under the Senior Citizens Act? The said judgment also deals with an imaginary claim over a property and proceeds to confirm the views as were decided in the case of Ashish Vinod Dalal & ors. Vz. Vinod Ramanlal Dalal & Ors. decided in Writ Petition No.2400 of 2021 by this Court on 15.09.2021. In essence, the Division Bench whilst taking the view which originated from a case in Delhi High Court in the case of Sunny Paul vs. State of NCT of Delhi, in paragraph 23 of the judgment passed by this Hon’ble Court, simplifies and substantiates as under; a. A Senior Citizen has a right to approach the Tribunal; b. A Senior Citizen has to only establish through pleadings and appropriate documents that the Senior Citizen is a victim of harassment, exploitation, neglect, physiological disturbances, [physiological means and all possible facets to safeguard their physical and mental health as is recognized under Section 4 (sub section 2) and Section 4 (sub section 3)]. The concept of normal life under these provisions would have a deeper meaning which stems out from the fundamental right of livelihood which is guaranteed under Article 21 of the Constitution of India. The statement and objects reflects in the intention behind the legislation which also requires a suitable mechanism for protection of life and property of older persons and thus invocation of the Senior Citizens Act is the remedy for seeking a relief on the basis of which the statute provides. 14. To substantiate his submission that under Section 23 of the Act, a senior citizen can seek eviction, he relied upon the following a] Dattatrey Shivaji Mane Vs. Lilabai Shivaji Mane, Writ petition (St.) No.10611 of 2018 decided on 18.07.2018; b] S. Vanitha Vs. Deputy Commissioner, Bengaluru Urban District and others, Civil Appeal No.3822 of 2020 [arising out of SLP (C) No.29760 of 2019] decided on 15.12.2020; c] Ashish Vinod Dalal and others Vs Vinod Ramanlal Dalal and others, Writ petition No.2400 of 2021 decided on d] Shefali Sanjiv Patel and another Vs. Jyotiben Manubhai Patel and another, Writ petition No.2441 of 2021 decided on e] Shweta Shetty (supra). 15. Mr. Yadav, learned counsel appearing for Devang Shah has tendered across the Bar submissions on behalf of the petitioner, which is taken on record. 15.1. He submits that Sheetal Shah has filed the present Petition against the impugned order passed by the Tribunal on an application filed by Nalini Shah and Mahendra Shah under the said Act. Devang Shah is a formal party because there is no any prayer in the Petition 15.2. Learned counsel further submits that Devang Shah is the son of Nalini Shah and Mahendra Shah and the husband of Sheetal Shah. Devang Shah married Sheetal Shah in the year 1994 and during the first 24 years of marriage, there was no NC / complaint against each other, in any other Court of law or in any police station. Suddenly, in May 2018, Sheetal Shah lodged an FIR with the Juhu Police Station and subsequently, filed a Domestic Violence Case, in the Andheri Metropolitan Magistrate Court, which was subsequently transferred to the Family Court at Bandra, Mumbai. He submits that the family disputes started between Sheetal Shah and Devang Shah for reasons best known to Sheetal Shah only and that she had deliberately implicated his mother in false cases in various forums and started harassing him and his 15.3. It is submitted that Devang Shah is ready to vacate the premises as per the Tribunal’s order alongwith Sheetal Shah. After passing of the order by the Tribunal, Sheetal Shah started harassing his mother Nalini Shah physically and mentally, therefore, various NCs are lodged by his mother against Sheetal Shah and he is a witness for that. It is further submitted that Sheetal Shah has been deliberately damaging and destroying Devang Shah’s parent’s house, threatening Nalini Shah to the extent that since over 3 years Devang Shah and Nalini Shah are dependent on outside food and cannot even cook in the kitchen due to the harassment caused by Sheetal Shah. 15.4. It is submitted that, after passing of the order by the said Tribunal, Sheetal Shah became aggressive and has broken doors, windows and glasses of the property; switches and furniture items have been stolen by her and loose electric wires are hanging with risk of fire. It is further submitted that Sheetal Shah goes to the extent of getting and breaking eggs in the house, to hurt their sentiments as they are Jains by religion, and that they do not get or have eggs, being pure vegetarians. Continuously threats are being given by Sheetal Shah to Nalini Shah, with an intent to harass her and eventually grab her property. 15.5. It is submitted that Devang Shah is sandwiched between Sheetal Shah and Nalini Shah and Devang Shah is ready to vacate the house along with Sheetal Shah to bring some peace to his family and safeguard the life of his aged mother - Nalini Shah. He further submits that there is no way Nalini Shah can stay with Sheetal Shah in her own house and Devang Shah would not like to take any chance for any further crime to be committed by Sheetal Shah, who was violent on many occasions earlier. It is submitted that father of Devang Shah, late Mahendra Shah passed away on 08.08.2019 succumbing to harassment by Sheetal Shah and therefore, Devang Shah does not want to lose his mother, with an undignified death in her own house. 15.6. It is submitted that Devang Shah is a law abiding citizen and he is ready to vacate the premises as per the Tribunal’s order. He once again submits that there is no any substantive prayer made in the petition against Devang Shah. 16. We have heard learned counsel appearing for respective parties at length. With their able assistance, we have carefully perused the pleadings and the grounds taken in the petition along with the annexures, the order passed by the Tribunal, written submissions filed by the counsel for Sheetal Shah, Nalini Shah and Devang Shah, original record summoned from the office of respondent No.1 and the judgments cited across the Bar. 17. Though various contentions are raised by the parties, touching various proceedings pending before various Forums and also the criminal cases filed against each other, we deem it appropriate to confine the adjudication of the present petition keeping in view the substantive prayer therein and the issues dealt with and answered by the Tribunal. 18. Before we proceed to discuss the issues considered and answered by the Tribunal and the correctness of the impugned order passed by the Tribunal, it would be apt to make reference to the statement of objects and reasons for bringing the said Act / legislation into force. The statement of objects and reasons stated in the preamble of the Act reads “ An Act to provide for more effective provisions for the maintenance and welfare of parents and senior citizens guaranteed and recognized under the Constitution and for matters connected therewith or incidental thereto. Be it enacted by Parliament in the Fifty-eighth Year of Statement of Objects and Reasons.- Traditional norms and values of the Indian society laid stress on providing care for the elderly. However, due to withering of the joint family system, a large number of elderly are not being looked after by their family. Consequently, many older persons, particularly widowed women are now forced to spend their twilight years all alone and are exposed to emotional neglect and to lack of physical and financial support. This clearly reveals that ageing has become a major social challenge and there is a need to give more attention to the care and protection for the older persons. Though the parents can claim maintenance under the Code of Criminal Procedure, 1973, the procedure is both time- consuming as well as expensive. Hence, there is a need to have simple, inexpensive and speedy provisions to claim maintenance for parents. 2. The Bill proposes to cast an obligation on the persons who inherit the property of their aged relatives to maintain such aged relatives and also proposes to make provisions for setting-up oldage homes for providing maintenance to the indigent older persons. The Bill further proposes to provide better medical facilities to the senior citizens and provisions for protection of their life and property. 3. The Bill, therefore, proposes to provide for:- (a) appropriate mechanism to be set up to provide need-based maintenance to the parents and senior citizens; (b) providing better medical facilities to senior (c) for institutionalisation of a suitable mechanism for protection of life and property of older persons; (d) setting up of oldage homes in every district.” 19. In Section 2 (a), “children” is defined and includes son, daughter, grandson and grand-daughter but does not include a minor. Section 2(b) defines “maintenance” to include provisions for food, clothing, residence and medical attendance and treatment. Section 2(d) defines “parent” to mean father or mother whether biological, adoptive or step father or step mother, as the case may be, whether or not the father or the mother is a senior citizen. Section 2(f) provides for definition of “property” to mean the property of any kind, whether movable or immovable, ancestral or self-acquired, tangible or intangible and includes rights or interests in such property. Section (g) defines “relative” to mean any legal heir of the childless senior citizen who is not a minor and is in possession of or would inherit his property after his death. Section 2(h) defines “senior citizen” to mean any person being a citizen of India, who has attained the age of sixty years or above; As per Section 2(j), “Tribunal” means the Maintenance Tribunal constituted under section 7 and under Section 2(k), “welfare” means provision for food, health care, recreation centres and other amenities necessary for the senior citizens. 20. The important section is Section 3, which reads as under:- “3. Act to have overriding effect.- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act, or in any instrument having effect by virtue of any enactment other than this Act.” 20.1. Section 3 would make it abundantly clear that the provisions of this Act shall have overriding effect on the provisions of any other Acts, which are inconsistent with the provisions of the said Act. 21. There is a provision under Section 4, which states about maintenance of parents and senior citizens, which reads as under:- “4. Maintenance of parents and senior citizens.- (1) A senior citizen including parent who is unable to maintain himself from his own earning or out of the property owned by him, shall be entitled to make an application under section 5 in case of— (i) parent or grand-parent, against one or more of his (ii) a childless senior citizen, against such of his relative referred to in clause (g) of section 2. (2) The obligation of the children or relative, as the case may be, to maintain a senior citizen extends to the needs of such citizen so that senior citizen may lead a normal life. (3) The obligation of the children to maintain his or her parent extends to the needs of such parent either father or mother or both, as the case may be, so that such parent may lead a normal life. (4) Any person being a relative of a senior citizen and having sufficient means shall maintain such senior citizen provided he is in possession of the property of such citizen or he would Provided that where more than one relatives are entitled to inherit the property of a senior citizen, the maintenance shall be payable by such relative in the proportion in which they would inherit his property.” 22. In Section 5, there is a provision for filing the application for maintenance. The said application can be filed taking recourse to Section 4 of the said Act by a senior citizen or a parent, as the case may be, or if he is incapable, by any other person or organization authorized by him or the Tribunal may take cognizance suo motu. In Section 6, jurisdiction and procedure has been mentioned. Section 8 provides for summary procedure in case of inquiry. For the purpose of such enquiry, sub- section (2) of section 8 states that “The Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed; and the Tribunal shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).” 23. Section 9 speaks about the order for maintenance. Section 16 provides for appeals. However, such appeal can be filed by any senior citizen, or a parent, as the case may be, aggrieved by an order of a Tribunal within sixty days from passing such order. Section 19 provides for establishment of oldage homes. Section 20 provides for medical support for senior citizens. Section 21 provides for measures for publicity, awareness, etc. for welfare of senior citizens. Section 22 provides for authorities, who may be specified for implementing the provisions of the Act. Section 23 provides for transfer of property to be void in certain circumstances. 24. The said Act has been enacted with a laudable object to provide for more effective provisions, for the maintenance and welfare of parents and senior citizens, as guaranteed and recognized under the Constitution and other Statutes. In the light of the aforementioned statement of objects and reasons, so also the provisions recorded hereinabove, we proceed to consider whether the Tribunal, while passing the impugned order, has framed appropriate issues and answered the same keeping in view the provisions of the Act and the Rules thereunder, so also the documents and materials placed on record. 25. The Tribunal framed the following four issues of enquiry, which “1) Are the applicants capable of supporting themselves 2) Is there any evidence that the respondent is not taking proper care of the applicant and is causing mental and 3) Can the request made by the applicant be accepted? 4) What will be the orders?” 26. The Tribunal, after adverting to the contentions raised by the parties and documents placed on record, observed that at the relevant time, applicant No.1 - Nalini Shah was 77 years old and applicant No.2 - Mahendra Shah was 79 years old. It is also observed that the said applicants are not in a position to work. The Tribunal observed that though it is contended by Sheetal Shah, that Nalini Shah is having share trading business and also Mahendra Shah has business of diamond and jewellery, Sheetal Shah has not submitted any evidence before the Tribunal to that effect. It is further observed, that even if the said contention of Sheetal Shah is accepted, in that case also, considering the age of Nalini Shah and Mahendra Shah, it cannot be said that they are capable of supporting themselves from their own earnings. It is also observed that the family members viz., Devang Shah and Sheetal Shah should treat Nalini Shah and Mahendra Shah with kindness, consideration and respect and that they should provide them basic necessities for a peaceful life. It is also observed that the kindness, consideration and respect cannot be bought with money. It is the responsibility of Devang Shah and Sheetal Shah being son and daughter- in-law of Nalini Shah and Mahendra Shah to pay attention to the daily needs of the applicants and to try their best to meet those needs. Nalini Shah and Mahendra Shah are dependent upon Devang Shah and Sheetal Shah for their daily necessities, mental support and care and accordingly, issue No.1 is answered in the affirmative. 27. Upon perusal of the original record of the proceedings instituted by Nalini Shah, we are in respectful agreement with the said observations made by the Tribunal while answering issue No.1 except to the extent that, it holds Sheetal Shah, (daughter-in-law of Nalini Shah) alongwith Devang Shah, liable to pay maintenance. 28. We have carefully perused the observations made by the Tribunal while answering issue No.2 i.e., whether there is any evidence that Shetal Shah is not taking proper care of Nalini Shah and Mahendra Shah and is causing mental and physical harassment to them. We have no doubt in our mind, that the observations made and the findings recorded by the Tribunal, that Sheetal Shah and Devang Shah are not taking proper care of the applicants and causing mental and physical harassment to Nalini Shah and Mahendra Shah, are in consonance with the documents on record. We have also carefully perused the various complaints filed by Nalini Shah and Sheetal Shah, and we find that there is no peace and harmony in the house. There is unrest and also there is a mental and physical harassment to the old aged parents of Devang Shah. While exercising writ jurisdiction, it is not desirable to undertake exercise of disputed questions of fact, and more particularly, when we find that the observations / findings recorded by the Tribunal, while answering issue No.2, that Sheetal Shah and Devang Shah in the said application are causing mental and physical harassment to Nalini Shah and Mahendra Shah, are made keeping in view the material placed on 29. The Tribunal, while discussing issue No.3 i.e., “Can the request made by the applicant be accepted?”, has made reference to various documents placed on record by the parties and in particular documents in relation to the said residential premises wherein, the parties are residing, and has reached a conclusion, that the residential premises is in the name of Mahendra Shah, who has inherited the same, from his parents. The Tribunal has also considered the effect of giving such property as a gift by Mahendra Shah to Devang Shah and after adverting to the provisions of Section 23 of the said Act, which provides for protection of life and property of senior citizens and as such, has correctly reached the conclusion, that the applicants’ (Nalini and Mahendra Shah) request for exclusion of Devang Shah from the suit property can be granted. It would be relevant to reproduce hereinbelow the provisions of Section 23(1) of the said Act, which reads as under:- “23. Transfer of property to be void in certain circumstances.- (1) Where any senior citizen who, after the commencement of this Act, has transferred by way of gift or otherwise, his property, subject to the condition that the transferee shall provide the basic amenities and basic physical needs to the transferor and such transferee refuses or fails to provide such amenities and physical needs, the said transfer of property shall be deemed to have been made by fraud or coercion or under undue influence and shall at the option of the transferor be declared void by the Tribunal.” 30. The Tribunal, ultimately concluded, that Sheetal Shah and Devang Shah are not taking proper care of Nalini Shah and Mahendra Shah, but are causing mental and physical harassment to them. As already observed, the age of Nalini Shah and her husband Mahendra Shah was 77 and 79 years respectively, at the relevant time, when they preferred the application. It is brought on record by the parties, that during the pendency of the petition, Mahendra Shah died. At present, Nalini Shah, wife of Mahendra Shah, is aged about 82 years. On couple of dates of hearing before us, she attended Court proceedings sitting on a wheel chair, that itself shows, that she is certainly dependent upon Sheetal Shah and Devang Shah for physical and mental support. 31. After answering the issues framed, the Tribunal accepted the case of Nalini Shah and Mahendra Shah and directed Devang Shah and Sheetal Shah together to pay Rs.25,000/- (Rupees Twenty Five Thousand only) per month to Nalini Shah and Mahendra Shah for their maintenance, subsistence and medical expenses, by depositing the said amount, in the bank accounts of Nalini Shah and Mahendra Shah. 32. We have reservations about such direction to Sheetal Shah to pay maintenance amount to Nalini Shah. As already observed, in Section 2(a), ‘children’ include son, daughter, grandson and grand-daughter and there is no reference to the daughter-in-law. Be that as it may, upon perusal of the original record, we do not find a single document showing the earnings of Sheetal Shah. In that view of the matter, the Impugned Order, to the extent that it directs Sheetal Shah to pay Rs.25,000/- alongwith her husband Devang Shah to Nalini Shah and Mahendra Shah, cannot be legally sustained. However, so far direction given to Devang Shah to pay the said maintenance amount to Nalini Shah, the same is legally sustainable. 33. The Tribunal has directed Devang Shah and Sheetal Shah to handover the possession of entire residential premises i.e., Saprem, Plot No.20, 3rd Road, Juhu Scheme, Vile Parle (West), Mumbai - 400 056 to Nalini Shah and Mahendra Shah (since deceased) in a peaceful manner. In our opinion, said direction given by the Tribunal is legally and factually sustainable, in as much as, when the application was decided by the Tribunal, the subject property stood in the name of husband of Nalini Shah, namely, Mahendra Shah. Relying upon the various documents placed on record including criminal complaints and other materials, the Tribunal has correctly reached a conclusion, that there is a continuous mental as well as physical harassment to Nalini Shah and Mahendra Shah (since deceased). 34. In that view of the matter, we are of the opinion that the view taken by the Tribunal, after adverting to the material placed on record, is legally as well as factually sustainable. Therefore, we confirm the order passed by the Tribunal except the direction to Sheetal Shah to pay jointly with Devang Shah, maintenance of Rs.25,000/- to Nalini Shah and Mahendra Shah. Therefore, the direction to Sheetal Shah to that extent is quashed and set aside. However, as already observed, the son of Nalini Shah namely, Devang Shah is obliged to pay the said maintenance amount to Nalini Shah. 35. The Tribunal in clause (3) of the operative order has observed that, within 15 days from the date of receipt of the order, Sheetal Shah and Devang Shah shall handover the entire possession of the residential premises in question, to Nalini Shah and Mahendra Shah (deceased) in a peaceful manner and at the same time, observed that Sheetal Shah and Devang Shah, should make separate arrangements for their own accommodation elsewhere. Keeping in view the said direction, we are of the opinion that Devang Shah, being the husband of Sheetal Shah is obliged to provide separate accommodation to Sheetal Shah and her sons 36. With the above observations, we dismiss the writ petition. 37. Rule is discharged accordingly. 38. Since the interim relief is operating till date, we deem it appropriate to grant further six weeks’ time to the petitioner, to act in compliance with the directions contained in clause (3) of the operative part of Tribunal’s order i.e. Sheetal Shah and Devang Shah should hand over the entire possession of the residential premises in question, to Nalini Shah in a peaceful manner. In the said clause (3), the Tribunal has also directed Sheetal Shah and Devang Shah to make separate arrangements for their own accommodation elsewhere. As already observed in para 35 hereinabove, Devang Shah (respondent No.4), being husband of Sheetal Shah and thus guardian of two sons is legally obliged to provide them accommodation befitting his status, income and assets. 39. The observations made hereinabove, are restricted to adjudication of the present proceedings and will have no bearing on the proceedings pending between the parties and the orders passed therein, by the appropriate courts of competent jurisdiction or forum provided under the 40. All concerned parties to act upon ordinary copy of this order duly authenticate by court Sheristadar.
The Bombay High Court has said that a daughter-in-law cannot be ordered to pay financial support to her sick mother-in-law, especially if there's no proof of the daughter-in-law's income. The High Court had doubts about telling the daughter-in-law to pay money to her mother-in-law. The court also added that after looking at the original court documents, they found no papers showing the daughter-in-law's earnings. The court pointed out that a law called the Maintenance and Welfare of Parents and Senior Citizens Act of 2007, which defines 'children,' lists sons, daughters, grandsons, and granddaughters. However, it does not include a daughter-in-law. Because of this, the judges, SS Shinde and Revati Mohite Dere, cancelled only part of the order made by the special court for Parents and Senior Citizens. But the court did agree with the part of the order that told the son and daughter-in-law to leave the fancy Juhu house, which was based on the mother's complaint. However, the judges ordered the son to pay the full Rs 25,000 each month to his mother, an amount decided by the special court. By doing this, the High Court freed the daughter-in-law from having to pay any money. The court also told the husband, who is a diamond merchant, to arrange a place for his wife and children to live outside the family house. The judges said that a son, as a husband and the person responsible for his two children, is legally required to provide them with a place to live that matches his wealth, earnings, and possessions. Facts of the case An elderly couple, 77 and 79 years old, went to the special court for help. That court had told their son and daughter-in-law to leave their house and together pay the mother Rs 25,000 a month for her support. The daughter-in-law then went to the High Court to challenge this order from 2019. The father-in-law died while the court case was happening. The daughter-in-law claimed that the house was family property that her father-in-law had received from his ancestors. She also said her husband was paying the rent for the house. Her lawyer, Yasmin Tavaria, argued that in 2019, another court, the Family Court, had issued an order stopping the husband, or anyone working for him, from entering the family home. She also stated that the special court for Senior Citizens made its order without hearing any proof. The mother-in-law's lawyer, Vivek Kantawala, argued that his client faced constant mental and physical abuse, and because of this, the special court's order should be supported. He mentioned that the daughter-in-law had tried to upset their religious feelings by throwing eggs, even though she knew the family followed Jainism. He also said that the Family Court's order was made without the mother-in-law being present because she was not involved in that case. First, the court noted that Section 3 of the Senior Citizens Act states that this law is more important than any other law that conflicts with it. This meant that the special court's orders would remain valid, even if the Family Court had made a different decision. The court agreed with the special court's comments that "family members, like the son and daughter-in-law, should treat the mother-in-law with kindness, thought, and respect, and provide her with basic needs for a calm life. The court also noted that kindness, thought, and respect cannot be bought with money." The court also stated that it was the couple's job to pay attention to the mother-in-law's daily needs and do their best to fulfill them. The court recognized that "there is trouble and also mental and physical abuse happening to the elderly parents." The judges pointed out that the mother had come to court many times in a wheelchair. Based on Sections 3 and 23 of the Act, which protect the lives and property of senior citizens, the High Court observed that the special court was right to decide that the senior citizen's request to remove her son's name from the disputed property could be allowed, giving her the help she sought.
0.999084
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This petition is directed against the order dated 13.04.2022 passed by the Additional District Judge, Court No. 5/Special Judge (U.P. Gangsters and Anti-social Activities (Prevention) Act, 1986) Muzaffarnagar, dismissing Civil Revision No. 18 of 2022 and affirming an order dated 07.03.2022 passed by the Civil Judge (Senior Division) Fast Track Court, Muzaffarnagar in Original Suit No. 372 of 2013, rejecting the petitioner’s application 85C seeking to recall orders dated 26.10.2021 and 14.12.2021. 2. By the order dated 26.10.2021, an application for adjournment by the defendant has been rejected and his opportunity to cross-examine P.W.1 closed. The suit was directed to come up for arguments. By the order dated 14.12.2021, in the absence of the defendant, the suit was directed to come up for arguments ex-parte on 03.01.2022. A perusal of the record shows that Original Suit No. 372 of 2013 was filed by Vipul Mittal against Yogendra Kumar Garg before the Court of the Civil Judge (Senior Division), Muzaffarnagar for partition of his half share in House No. 212/1, situate at Mohalla Civil Lines, West, Muzaffarnagar, detailed in Schedule A to the plaint. The plaintiff sought a decree in terms that after the determination of his share, the suit property be partitioned by metes and bounds and separate possession delivered to him. A decree for permanent injunction was also sought to the effect that the defendants, prior to the partition being effected, may not mortgage the suit property or alter the nature and character of the house in dispute. The original defendant to the suit, Yogendra Kumar Garg, appears to have passed away pending suit and was substituted by his heirs and L.Rs., numbering five, and arrayed as defendant nos. 1/1 to 1/5 to the suit. The suit is one of the year 2013. The suit has proceeded to trial and it appears that the plaintiff had filed his evidence on affidavit and 16.10.2021 was the date scheduled for cross-examination of P.W.1. On the said date, the Counsel for the defendant made an application for adjournment, which was opposed by the plaintiff. The application for adjournment was rejected and opportunity to cross-examine P.W.1 was closed. The suit was directed to come up for arguments on 09.11.2021. On 09.11.2021, 17.11.2021 and 01.12.2021, the suit was adjourned eventlessly. It was adjourned on 09.11.2021 because the Presiding Officer was on leave, but the parties were also absent. On 17.11.2021, it was adjourned because the learned Members of the Bar had abstained from judicial work. Again, on 01.12.2021, the case was adjourned because the Presiding Officer was on leave. On 01.12.2021, it was adjourned to 14.12.2021. On 14.12.2021, when the suit came up for arguments, the Counsel for the plaintiff was present, but no one appeared on behalf of the defendant. It was in those circumstances that the Trial Court directed that the suit may come up for arguments ex-parte on 03.01.2022. In the said order, it was recorded that the Bar Association has proposed no work from 17.12.2021, due to elections of the Bar. 3. By the application dated 04.01.2022, the defendant has sought recall of the order dated 14.12.2021 that directs the suit to come up for address of arguments ex-parte. This application bears Paper No. 85C. By the other application dated 07.03.2022, the defendant has sought recall of the order dated 26.10.2021 that has closed the defendant’s opportunity to cross-examine P.W.1 and once again asked for recall of the order dated 14.12.2021, setting down the suit for address of arguments ex-parte. It is these applications that the Trial Judge has rejected vide his order dated 4. Heard Mr. Anil Kumar Aditya, learned Counsel for the petitioner in support of the motion to admit this petition to hearing and Ms. Shreya Gupta, learned Counsel appearing for the plaintiff- respondents at length. The records have been carefully perused. 5. The impugned order passed by the Trial Judge shows that he has rejected the Application 85C seeking recall of the order dated 14.12.2021 alone, that is to say, the application dated 04.01.2022 on the ground that there is no order dated 14.12.2021. That remark or reason to reject by the Trial Court is not borne out from the record. There is definitely an order dated 14.12.2021 passed by the Trial Court, directing the suit to come up for address of arguments ex-parte. So far as the other application is concerned, the Trial Court has dismissed it on the ground that the order dated 14.12.2021 is non-existent and the order dated 26.10.2021 ought not to be recalled, because the defendant is merely trying to delay the trial. It has also been remarked that the Application 85C (the application dated 07.03.2022 that seeks recall of both orders dated 26.10.2021 and 14.12.2021) is not supported by an affidavit. It is for the reason that Application 89C has been rejected. The Revisional Court has upheld the orders impugned on the ground Matters under Art. 227 No. 3265 of 2022 that both the applications 85C and 89C have been made much beyond limitation, without an application or prayer for condonation of delay; but, this is one facet of the reasoning that the Revisional Court has adopted. The Revisional Court has looked wholesomely into the record to arrive at a conclusion that the defendant is attempting to delay trial of the suit, which has been expedited under orders of this Court dated 14.09.2018 passed in some supervisory proceedings. It appears that there is some order of this Court, directing the suit to be decided within two years and that schedule was violated because of the dilatory tactics adopted by the defendant. It is bearing all these facts in mind that the Revisional Court has declined to interfere with the orders made by the learned Trial Judge. 6. This Court has carefully looked into the order-sheet. It must be remarked that indeed, there have been determined efforts to delay trial of the suit. On 08.01.2021, the plaintiff’s evidence on affidavit was accepted and the suit was scheduled for cross- examination of P.W.on 28.01.2021. From 28.01.2021 to 26.10.2021, 18 dates were fixed prior to 26.10.2021, but for one reason or the other, the defendant did not cross examine P.W.1. The Trial Judge in between 28.01.2021 and 26.10.2021 has taken note of the orders of this Court in the order recorded on 02.08.2021, saying that the High Court has issued directions for concluding the trial within two years, and further, that the suit has been assigned to him by the District Judge. It is not that the order dated 26.10.2021, closing the defendant’s opportunity has been passed surreptitiously or suddenly. The defendant has been given enough opportunity by the orders passed by the Trial Court on earlier dates, and also, by all those ominous resolutions of the Bar, directing its members to abstain from judicial work. It must be Matters under Art. 227 No. 3265 of 2022 remarked that Resolutions of the Bar, asking its Members to abstain from judicial work, are absolutely unlawful, in view of the directions of the Supreme Court in Ex-Capt. Harish Uppal v. Union of India and another 1, Common Cause, a registered society and others v. Union of India and others 2, Krishnakant Tamrakar v. State of Madhya Pradesh, (2018) 17 SCC 27 3 and District Bar Association, Dehradun through its Secretary v. Ishwar Shandilya and others4. Such resolutions being per se illegal, no litigant can derive any advantage out of these. The orders passed on 01.09.2021, 13.09.2021, 14.09.2021, 08.10.2021 and 26.10.2021 must be taken particular note of, as these immediately preceded the order dated 26.10.2021 passed by the learned Trial Judge. These orders are extracted below : Called out. Counsel on behalf of the df. Present and filed adjournment 82D stating that O.S. 982/10 is a connected case and is pending in the Court of Civil Judge S.D. df. are trying to get the connected case transferred to one Court. Hence adjournment is moved. Application allowed in interest of justice. Put up on 13-09-2021. Proposal of Bar to abstain from judicial work. Hon’ble H.C. has pass direction to dispose off the case within 2 years. Even on repeated requests to the counsels, no sides are appearing. In the interest of justice, last opportunity is granted to parties. Put up on 24-09-2021. 7. This Court takes particular notice of the order dated 13.09.2021, where the learned Trial Judge has observed that the High Court has directed the suit to be decided within two years, but despite repeated requests to the learned Counsel, no one is appearing. This was so because the Bar had abstained from judicial work. This conduct of the Bar is not only reprehensible, but also downright illegal. The Bar Association is, after all, a registered society and cannot hold up the functioning of a Sovereign Court by their resolutions. Whatever they do, they do it at the peril of the litigants whose interest their Members represent. If the learned Counsel refuse to appear and so do the parties, the Court is supposed to pass orders in accordance with the Code of Civil Procedure, 1908 that provides for orders to be made when parties, both or one, are absent. The impugned order passed on 26.10.2021, which follows the order dated 10.10.2021 recorded hereinabove, reads : Counsel of Df. filed an adjournment 84D which is strongly opposed by pf. On perusal it is observed that df. is continuously delaying the case by not turning up. In the light of conduct of df., opportunity to cross examine PW1 is closed. Adjournment rejected. 8. The other order of which recall was sought is the one dated 14.12.2021. It reads : Put up on 03-01-2022 for ex-parte arguments, as BAR proposed no work from 17-12-2021 due to elections of BAR. 9. Again on 14.12.2021, the Members of the Bar abstained from judicial work, because Bar Elections were going on. It is beyond imagination that the work of a Court would be brought to a grinding halt, because the elections of a registered society are to be held. No doubt, learned Members of the Bar are superior officers of the Court, but the Bar Association is no more than a registered society established for the welfare of the learned Members of the Bar and to positively contribute to the functioning of its individual Members. The Bar Association is not established to obstruct functioning of the Court and interfere with the discharge of its sovereign functions. The Trial Court was, therefore, absolutely right when it made the order dated 14.12.2021, directing the suit to come up for address of arguments ex-parte. 10. It must be noted that on 14.12.2021, learned Counsel for the plaintiff was present. Had the learned Counsel for the plaintiff not been present on 14.12.2021, the Trial Court would have dismissed the suit in default also. But, it was the defendant’s Counsel alone who was absent and not the plaintiff. The order dated 14.12.2021, Matters under Art. 227 No. 3265 of 2022 like the order dated 26.10.2021, is unexceptionable. It must be noted that on 26.10.2021 also, the plaintiff, along with his Counsel, was present. The Revisional Court has upheld the order on the ground of limitation, besides taking the conduct of the defendant into account, though not eloquently said in the order impugned passed by the learned Additional District Judge. 11. For the added reasons mentioned, this Court concurs in the conclusion reached by the two Courts below unanimously. 12. In the result, this petition fails and stands dismissed. 13. There shall, however, be no order as to costs. 14. The Registrar General is directed to circulate this order to all the learned District Judges, the Presiding Officers of Land Acquisition, Rehabilitation and Resettlement Tribunals, the Principal Judges of Family Courts, the Presiding Officers of Motor Accident Claim Tribunals and the Chairman, Board of Revenue.
The Allahabad High Court said that court cases shouldn't stop just because a registered group is holding elections. Justice J. J. Munir, the judge, also stated that the Bar Association (a group of lawyers) is not there to block the court's work or get in the way of its main duties. The Court made these comments while looking at a request from a person named Rajani. She was asking to overturn a decision made by a lower court in Muzaffarnagar. That lower court had rejected her request to cancel two previous orders in a civil lawsuit. Basically, she wanted to cancel these two decisions: (1) The first decision was from October 26, 2021. In it, the court denied the defendant's request to delay the case, took away his chance to question a witness (P.W.1), and scheduled the case for final arguments. (2) The second decision was from December 14, 2021. It said that since the defendant wasn't present, the case would proceed to arguments without him (ex-parte) on January 3, 2022. It's important to know that another higher court had also agreed with these two decisions. The High Court checked the case records and found clear attempts to slow down the trial. The Court also noted that on January 8, 2021, the plaintiff's written sworn statement (evidence) was accepted. The case was then set for the questioning of witness P.W.1 on January 28, 2021. The High Court also pointed out that between January 28, 2021, and October 26, 2021, the court set 18 different dates. However, the defendant, for various reasons, never questioned witness P.W.1. This happened even though the High Court had previously ordered the trial to be finished within two years. The Court found good reasons for its decision to end the defendant's chance to question the witness. It then commented: "The decision on October 26, 2021, to close the defendant's opportunity was not made secretly or suddenly. The lower court gave the defendant many chances on earlier dates. He also had chances because of the lawyers' group (Bar Association) repeatedly calling its members to stop working in court. It's important to say that these calls from the Bar Association for its members to stop court work are completely illegal, according to the Supreme Court's orders." The Court also noted that on several dates, no one showed up to argue the case because the Bar Association had told its members to stop court work. The Court strongly criticized the lawyers' group for calling these strikes and then said: "This behavior by the Bar Association is not just wrong, but completely illegal. The Bar Association is a registered group and cannot stop a powerful court from doing its job with their decisions. Whatever they do, it puts their clients – the people they represent in court – at risk. If the lawyers and their clients refuse to show up, the Court has to make decisions according to the law (Code of Civil Procedure, 1908), which explains what to do when one or both sides are not present." The Court further emphasized that the Bar Association's role is not to block the court's work or interfere with its main duties. Because of this, the High Court agreed with the lower court's decision from December 14, 2021, which said the case should proceed to arguments without the defendant (ex-parte). In the end, Rajani's request was denied and thrown out. Also, the top court administrator (Registrar General) was told to share this order with all district judges and leaders of various specialized courts and tribunals across the region.
This petition is directed against the order dated 13.04.2022 passed by the Additional District Judge, Court No. 5/Special Judge (U.P. Gangsters and Anti-social Activities (Prevention) Act, 1986) Muzaffarnagar, dismissing Civil Revision No. 18 of 2022 and affirming an order dated 07.03.2022 passed by the Civil Judge (Senior Division) Fast Track Court, Muzaffarnagar in Original Suit No. 372 of 2013, rejecting the petitioner’s application 85C seeking to recall orders dated 26.10.2021 and 14.12.2021. 2. By the order dated 26.10.2021, an application for adjournment by the defendant has been rejected and his opportunity to cross-examine P.W.1 closed. The suit was directed to come up for arguments. By the order dated 14.12.2021, in the absence of the defendant, the suit was directed to come up for arguments ex-parte on 03.01.2022. A perusal of the record shows that Original Suit No. 372 of 2013 was filed by Vipul Mittal against Yogendra Kumar Garg before the Court of the Civil Judge (Senior Division), Muzaffarnagar for partition of his half share in House No. 212/1, situate at Mohalla Civil Lines, West, Muzaffarnagar, detailed in Schedule A to the plaint. The plaintiff sought a decree in terms that after the determination of his share, the suit property be partitioned by metes and bounds and separate possession delivered to him. A decree for permanent injunction was also sought to the effect that the defendants, prior to the partition being effected, may not mortgage the suit property or alter the nature and character of the house in dispute. The original defendant to the suit, Yogendra Kumar Garg, appears to have passed away pending suit and was substituted by his heirs and L.Rs., numbering five, and arrayed as defendant nos. 1/1 to 1/5 to the suit. The suit is one of the year 2013. The suit has proceeded to trial and it appears that the plaintiff had filed his evidence on affidavit and 16.10.2021 was the date scheduled for cross-examination of P.W.1. On the said date, the Counsel for the defendant made an application for adjournment, which was opposed by the plaintiff. The application for adjournment was rejected and opportunity to cross-examine P.W.1 was closed. The suit was directed to come up for arguments on 09.11.2021. On 09.11.2021, 17.11.2021 and 01.12.2021, the suit was adjourned eventlessly. It was adjourned on 09.11.2021 because the Presiding Officer was on leave, but the parties were also absent. On 17.11.2021, it was adjourned because the learned Members of the Bar had abstained from judicial work. Again, on 01.12.2021, the case was adjourned because the Presiding Officer was on leave. On 01.12.2021, it was adjourned to 14.12.2021. On 14.12.2021, when the suit came up for arguments, the Counsel for the plaintiff was present, but no one appeared on behalf of the defendant. It was in those circumstances that the Trial Court directed that the suit may come up for arguments ex-parte on 03.01.2022. In the said order, it was recorded that the Bar Association has proposed no work from 17.12.2021, due to elections of the Bar. 3. By the application dated 04.01.2022, the defendant has sought recall of the order dated 14.12.2021 that directs the suit to come up for address of arguments ex-parte. This application bears Paper No. 85C. By the other application dated 07.03.2022, the defendant has sought recall of the order dated 26.10.2021 that has closed the defendant’s opportunity to cross-examine P.W.1 and once again asked for recall of the order dated 14.12.2021, setting down the suit for address of arguments ex-parte. It is these applications that the Trial Judge has rejected vide his order dated 4. Heard Mr. Anil Kumar Aditya, learned Counsel for the petitioner in support of the motion to admit this petition to hearing and Ms. Shreya Gupta, learned Counsel appearing for the plaintiff- respondents at length. The records have been carefully perused. 5. The impugned order passed by the Trial Judge shows that he has rejected the Application 85C seeking recall of the order dated 14.12.2021 alone, that is to say, the application dated 04.01.2022 on the ground that there is no order dated 14.12.2021. That remark or reason to reject by the Trial Court is not borne out from the record. There is definitely an order dated 14.12.2021 passed by the Trial Court, directing the suit to come up for address of arguments ex-parte. So far as the other application is concerned, the Trial Court has dismissed it on the ground that the order dated 14.12.2021 is non-existent and the order dated 26.10.2021 ought not to be recalled, because the defendant is merely trying to delay the trial. It has also been remarked that the Application 85C (the application dated 07.03.2022 that seeks recall of both orders dated 26.10.2021 and 14.12.2021) is not supported by an affidavit. It is for the reason that Application 89C has been rejected. The Revisional Court has upheld the orders impugned on the ground Matters under Art. 227 No. 3265 of 2022 that both the applications 85C and 89C have been made much beyond limitation, without an application or prayer for condonation of delay; but, this is one facet of the reasoning that the Revisional Court has adopted. The Revisional Court has looked wholesomely into the record to arrive at a conclusion that the defendant is attempting to delay trial of the suit, which has been expedited under orders of this Court dated 14.09.2018 passed in some supervisory proceedings. It appears that there is some order of this Court, directing the suit to be decided within two years and that schedule was violated because of the dilatory tactics adopted by the defendant. It is bearing all these facts in mind that the Revisional Court has declined to interfere with the orders made by the learned Trial Judge. 6. This Court has carefully looked into the order-sheet. It must be remarked that indeed, there have been determined efforts to delay trial of the suit. On 08.01.2021, the plaintiff’s evidence on affidavit was accepted and the suit was scheduled for cross- examination of P.W.on 28.01.2021. From 28.01.2021 to 26.10.2021, 18 dates were fixed prior to 26.10.2021, but for one reason or the other, the defendant did not cross examine P.W.1. The Trial Judge in between 28.01.2021 and 26.10.2021 has taken note of the orders of this Court in the order recorded on 02.08.2021, saying that the High Court has issued directions for concluding the trial within two years, and further, that the suit has been assigned to him by the District Judge. It is not that the order dated 26.10.2021, closing the defendant’s opportunity has been passed surreptitiously or suddenly. The defendant has been given enough opportunity by the orders passed by the Trial Court on earlier dates, and also, by all those ominous resolutions of the Bar, directing its members to abstain from judicial work. It must be Matters under Art. 227 No. 3265 of 2022 remarked that Resolutions of the Bar, asking its Members to abstain from judicial work, are absolutely unlawful, in view of the directions of the Supreme Court in Ex-Capt. Harish Uppal v. Union of India and another 1, Common Cause, a registered society and others v. Union of India and others 2, Krishnakant Tamrakar v. State of Madhya Pradesh, (2018) 17 SCC 27 3 and District Bar Association, Dehradun through its Secretary v. Ishwar Shandilya and others4. Such resolutions being per se illegal, no litigant can derive any advantage out of these. The orders passed on 01.09.2021, 13.09.2021, 14.09.2021, 08.10.2021 and 26.10.2021 must be taken particular note of, as these immediately preceded the order dated 26.10.2021 passed by the learned Trial Judge. These orders are extracted below : Called out. Counsel on behalf of the df. Present and filed adjournment 82D stating that O.S. 982/10 is a connected case and is pending in the Court of Civil Judge S.D. df. are trying to get the connected case transferred to one Court. Hence adjournment is moved. Application allowed in interest of justice. Put up on 13-09-2021. Proposal of Bar to abstain from judicial work. Hon’ble H.C. has pass direction to dispose off the case within 2 years. Even on repeated requests to the counsels, no sides are appearing. In the interest of justice, last opportunity is granted to parties. Put up on 24-09-2021. 7. This Court takes particular notice of the order dated 13.09.2021, where the learned Trial Judge has observed that the High Court has directed the suit to be decided within two years, but despite repeated requests to the learned Counsel, no one is appearing. This was so because the Bar had abstained from judicial work. This conduct of the Bar is not only reprehensible, but also downright illegal. The Bar Association is, after all, a registered society and cannot hold up the functioning of a Sovereign Court by their resolutions. Whatever they do, they do it at the peril of the litigants whose interest their Members represent. If the learned Counsel refuse to appear and so do the parties, the Court is supposed to pass orders in accordance with the Code of Civil Procedure, 1908 that provides for orders to be made when parties, both or one, are absent. The impugned order passed on 26.10.2021, which follows the order dated 10.10.2021 recorded hereinabove, reads : Counsel of Df. filed an adjournment 84D which is strongly opposed by pf. On perusal it is observed that df. is continuously delaying the case by not turning up. In the light of conduct of df., opportunity to cross examine PW1 is closed. Adjournment rejected. 8. The other order of which recall was sought is the one dated 14.12.2021. It reads : Put up on 03-01-2022 for ex-parte arguments, as BAR proposed no work from 17-12-2021 due to elections of BAR. 9. Again on 14.12.2021, the Members of the Bar abstained from judicial work, because Bar Elections were going on. It is beyond imagination that the work of a Court would be brought to a grinding halt, because the elections of a registered society are to be held. No doubt, learned Members of the Bar are superior officers of the Court, but the Bar Association is no more than a registered society established for the welfare of the learned Members of the Bar and to positively contribute to the functioning of its individual Members. The Bar Association is not established to obstruct functioning of the Court and interfere with the discharge of its sovereign functions. The Trial Court was, therefore, absolutely right when it made the order dated 14.12.2021, directing the suit to come up for address of arguments ex-parte. 10. It must be noted that on 14.12.2021, learned Counsel for the plaintiff was present. Had the learned Counsel for the plaintiff not been present on 14.12.2021, the Trial Court would have dismissed the suit in default also. But, it was the defendant’s Counsel alone who was absent and not the plaintiff. The order dated 14.12.2021, Matters under Art. 227 No. 3265 of 2022 like the order dated 26.10.2021, is unexceptionable. It must be noted that on 26.10.2021 also, the plaintiff, along with his Counsel, was present. The Revisional Court has upheld the order on the ground of limitation, besides taking the conduct of the defendant into account, though not eloquently said in the order impugned passed by the learned Additional District Judge. 11. For the added reasons mentioned, this Court concurs in the conclusion reached by the two Courts below unanimously. 12. In the result, this petition fails and stands dismissed. 13. There shall, however, be no order as to costs. 14. The Registrar General is directed to circulate this order to all the learned District Judges, the Presiding Officers of Land Acquisition, Rehabilitation and Resettlement Tribunals, the Principal Judges of Family Courts, the Presiding Officers of Motor Accident Claim Tribunals and the Chairman, Board of Revenue.
The Allahabad High Court said that court cases shouldn't stop just because a registered group is holding elections. Justice J. J. Munir, the judge, also stated that the Bar Association (a group of lawyers) is not there to block the court's work or get in the way of its main duties. The Court made these comments while looking at a request from a person named Rajani. She was asking to overturn a decision made by a lower court in Muzaffarnagar. That lower court had rejected her request to cancel two previous orders in a civil lawsuit. Basically, she wanted to cancel these two decisions: (1) The first decision was from October 26, 2021. In it, the court denied the defendant's request to delay the case, took away his chance to question a witness (P.W.1), and scheduled the case for final arguments. (2) The second decision was from December 14, 2021. It said that since the defendant wasn't present, the case would proceed to arguments without him (ex-parte) on January 3, 2022. It's important to know that another higher court had also agreed with these two decisions. The High Court checked the case records and found clear attempts to slow down the trial. The Court also noted that on January 8, 2021, the plaintiff's written sworn statement (evidence) was accepted. The case was then set for the questioning of witness P.W.1 on January 28, 2021. The High Court also pointed out that between January 28, 2021, and October 26, 2021, the court set 18 different dates. However, the defendant, for various reasons, never questioned witness P.W.1. This happened even though the High Court had previously ordered the trial to be finished within two years. The Court found good reasons for its decision to end the defendant's chance to question the witness. It then commented: "The decision on October 26, 2021, to close the defendant's opportunity was not made secretly or suddenly. The lower court gave the defendant many chances on earlier dates. He also had chances because of the lawyers' group (Bar Association) repeatedly calling its members to stop working in court. It's important to say that these calls from the Bar Association for its members to stop court work are completely illegal, according to the Supreme Court's orders." The Court also noted that on several dates, no one showed up to argue the case because the Bar Association had told its members to stop court work. The Court strongly criticized the lawyers' group for calling these strikes and then said: "This behavior by the Bar Association is not just wrong, but completely illegal. The Bar Association is a registered group and cannot stop a powerful court from doing its job with their decisions. Whatever they do, it puts their clients – the people they represent in court – at risk. If the lawyers and their clients refuse to show up, the Court has to make decisions according to the law (Code of Civil Procedure, 1908), which explains what to do when one or both sides are not present." The Court further emphasized that the Bar Association's role is not to block the court's work or interfere with its main duties. Because of this, the High Court agreed with the lower court's decision from December 14, 2021, which said the case should proceed to arguments without the defendant (ex-parte). In the end, Rajani's request was denied and thrown out. Also, the top court administrator (Registrar General) was told to share this order with all district judges and leaders of various specialized courts and tribunals across the region.
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1. Being aggrieved and dissatisfied with the impugned judgment and order dated 19.06.2007 passed by the High Court of Uttaranchal at Nainital passed in A.O. No. 1489 of 2001 by which the High Court has allowed the said appeal and has set aside the award dated 08.01.1998 made by the learned Arbitrator and the order dated 20.04.2001 passed by the learned Civil Judge (Senior Division), Roorkee making the said award Rule of the Court, original claimant, M/s. Laxmi Continental Construction has preferred the present appeal. 2. The facts leading to the present appeal in nutshell are as under:- 2.1 A contract was entered into between the appellant and the respondents regarding the earthwork including lining of V.U.G.C. from KM 10 to KM 11 vide agreement dated 06.02.1988. During the contract work, various disputes and differences arose between the parties. All disputes and differences between the parties were required to be resolved through arbitration in pursuance of clause 52 of the agreement. Clause 52 of the agreement reads as under:- which the decision is not final and conclusive, shall be referred for arbitration to a sole arbitrator Within thirty days of receipt of notice from the contractor of his intention to refer the dispute to arbitration the Chief Engineer shall send to the contractor a list of three officers of the rank of Superintending Engineer or higher, who have not been connected with the work under this contract. The contractor shall within fifteen days of receipt of this list select and communicate to the Chief Engineer the name of one officer from the list who shall then be appointed as the sole arbitrator. If contractor fails to communicate his selection of name, within the stipulated period, the Chief Engineer shall without delay select one officer arbitrator. If the Chief Engineer fails to send such a list within thirty days, as stipulated, the contractor shall send a similar list to the Chief Engineer within fifteen days. The Chief Engineer shall then select an officer from the list and appoint him as the sole arbitrator within fifteen days. If the Chief Engineer fails to do so the Engineer the name of one officer from the list, who shall then be the sole arbitrator. The arbitration shall be conducted in accordance with the provisions of the Indian Arbitration Act, 1940 or any statutory modification thereof. The decision of the sole arbitrator shall be final and binding on the parties thereto. The arbitrator shall determine the amount of costs of arbitration to be awarded to either parties. Performance under the contract shall continue during arbitration proceedings and payments due withheld, unless they are the subject matter of the arbitration proceedings. awards amount to Rs.1.00 Lakh and above, such awarded. Neither party is entitled to bring a claim to arbitration if arbitrator has not been appointed before the expiration of thirty days after defect liability period.” 2.2 Arbitrator was required to be appointed as provided under clause 52 of the agreement. The Chief Engineer appointed one Shri S.S. Manocha, who at the relevant time was also a Chief Engineer, as an Arbitrator vide order dated 31.10.1992. The Sole Arbitrator entered into the Reference on 19.11.1992 and issued notice to the parties directing them to submit the relevant papers and documents etc. The claimant filed its claim giving all details. The respondents also filed their objections to the said claim of the claimant. The respondents, thus, participated in the proceedings before the Sole Arbitrator. On various dates, the arbitration proceedings were adjourned at the instance of the respondents. During the period, the learned Arbitrator Shri S.S. Manocha superannuated on completion of superannuation age on 30.11.1995. During the hearing, the time for making and publishing the award was extended from time to time by the respondents. That the Superintending Engineer vide its letter dated 09.08.1996 refused to extend the period of arbitration particularly when the arbitration was about to close and the same could not be completed due to lapses, default and seeking adjournments on the part of the respondents. 2.3 The appellant thereafter filed Arbitration Suit No.116 of 1996 before the Civil Judge (Senior Division), Roorkee under Section 28 of the Arbitration Act, 1940 praying for extension of time for making the award and for hearing and conducting the arbitration. The respondents took their objections that the arbitrator has got retired and, therefore, the arbitration proceedings should not be proceeded further by the Sole Arbitrator, who has retired. Even the respondents also filed Misc. Suit No. 122 of 1997 with a prayer for declaring Reference sent to the Sole Arbitrator as inoperative and illegal. 2.4 Both the suits were heard together by the learned Civil Judge (Senior Division), Roorkee. By common order dated 11.12.1997, the learned Civil Judge (Senior Division) extended the period of arbitration for 30 days and directed the Sole Arbitrator, Shri S.S. Manocha to decide the same within the extended period of time. That thereafter, the learned Sole Arbitrator, Shri S.S. Manocha declared the award on 08.01.1998 and ordered the respondents to pay a total sum of Rs.10,97,024.00 with interest on the said sum from 01.10.1990 to 07.01.1998. The respondents filed their objections under Section 30/33 of the Arbitration Act, 1940 vide Misc. Case No. 3 of 1998, challenging the said award and made prayer therein for setting aside the award dated 08.01.1998 before the learned Civil Judge (Senior Division), 2.5 Having found that arbitration clause 52 of the agreement does not provide for terminating the mandate of the Arbitrator on his retirement, the learned Civil Judge (Senior Division), Roorkee overruled the objections raised by the respondents herein and made the award dated 08.01.1998 Rule of the 2.6 Feeling aggrieved, dissatisfied with the judgment and order dated 20.04.2001 passed by the learned Civil Judge (Senior Division), Roorkee, overruling/rejecting the objections of the respondents and making the award dated 08.01.1998 Rule of the Court, the respondents preferred appeal before the High Court and by impugned judgment and order the High Court has allowed the said appeal and has quashed and set aside the award dated 08.01.1998 made by Shri S.S. Manocha, the then Chief Engineer and the Sole Arbitrator and the order dated 20.04.2001 passed by the learned Civil Judge (Senior Division), Roorkee making the award Rule of the Court, solely and mainly on the ground that after the retirement of the Sole Arbitrator, Shri S.S. Manocha as Chief Engineer, he has misconducted himself by proceeding further with the arbitration proceedings. 2.7 Feeling aggrieved and dissatisfied by the impugned judgment and order passed by the High Court, the original claimant has preferred the present appeal. 3. Shri Mukesh Kumar Sharma, learned Advocate has appeared on behalf of the appellant and Shri Ravindra Raizada, learned Senior Advocate has appeared on behalf of the respondents – State of U.P. 4. Shri Mukesh Kumar Sharma, learned Advocate appearing on behalf of the appellant has vehemently submitted that in the facts and circumstances of the case, the High Court has materially erred in quashing and setting aside the award declared by the Sole Arbitrator as well as the order passed by the learned Civil Judge (Senior Division), Roorkee making the award Rule of the Court. 5. It is submitted that both the parties are bound by the arbitration clause contained in the agreement, in particularly, contained in clause 52 of the agreement. It is submitted that clause 52 of the agreement provides for nomination of the arbitrator by the Chief Engineer out of the three officers of the rank of Superintending Engineer or higher, who have not been connected with the work under the contract. It is submitted that clause 52 does not provide that the arbitrator nominated and/or appointed shall have a mandate to continue the arbitration proceedings till he remains in service, and, thereafter, on his retirement his mandate is terminated. It is submitted that in absence of such a provision in the clause 52, once an Arbitrator is appointed considering the qualification mentioned in clause 52, thereafter, he continues as an Arbitrator till the arbitration proceedings are concluded unless clause 52 provides other way round. It is further submitted by learned Advocate appearing on behalf of the appellant that even otherwise the High Court ought to have appreciated that throughout the respondents participated in the arbitration proceedings even after the Sole Arbitrator, Shri S.S. Manocha attained the age of superannuation. It is submitted that High Court has also not appreciated that even thereafter by order dated 11.12.1997, the learned Civil Judge (Senior Division), Roorkee extended the time to complete the arbitration proceedings after overruling the objections raised by the respondents and that after the retirement, Shri S.S. Manocha, the learned Sole Arbitrator cannot continue with the arbitration proceedings. It is submitted that the order dated 11.12.1997 passed by the learned Civil Judge (Senior Division), Roorkee remained unchallenged and attained the finality. It is submitted, therefore, that thereafter it was not open for the respondents again to raise the same objection that after the learned Sole Arbitrator, Shri S.S. Manocha attained the age of superannuation on 30.11.1995, he cannot continue with the arbitration proceedings, the objection which as such was overruled/rejected by the learned Civil Judge (Senior Division), Roorkee while passing the order dated 11.12.1997. 6. Making the aforesaid submissions and relying upon the decisions of this Court in Himalayan Construction Co. Vs. Executive Engineer, Irrigation Division, J&K and Anr., (2001) 9 SCC 359, Prasun Roy Vs. Calcutta Metropolitan Development Authority and Anr., (1987) 4 SCC 217 and N. Chellappan Vs. Secretary, Kerala State Electricity Board and Anr., (1975) 1 SCC 289, learned Advocate appearing for the appellant prayed to allow the present appeal and quash and set aside the impugned judgment and order passed by the High Court and consequently to restore the award declared by the Sole Arbitrator and the order passed by the learned Civil Judge (Senior Division), Roorkee making the award Rule of the Court. 7. The present appeal is opposed by Shri Raizada, learned Senior Advocate appearing on behalf of the respondents. 8. It is vehemently submitted by Shri Raizada, learned Senior Advocate appearing on behalf of the respondents that it is not in dispute that the learned Sole Arbitrator was appointed as per clause 52 and as he was the Chief Engineer. It is submitted, therefore, that once he retired on attaining the age of superannuation and he did not continue as a Chief Engineer, his mandate is terminated to continue with the arbitration proceedings and a new Arbitrator is to be nominated and appointed afresh as per clause 52 of the agreement. It is further submitted that right from the retirement of the Sole Arbitrator, the respondents raised an objection against his continuing with the arbitration proceedings and despite the same, he continued with the arbitration proceedings even after his retirement, as rightly observed by the High Court, he has misconducted himself, and, therefore, the High Court has rightly quashed and set aside the award declared by Shri S.S. Manocha, the learned Sole Arbitrator, who is held to have been 9. Shri Raizada, learned Senior Advocate has also heavily relied upon the State Amendment of Section 4 of the Arbitration Act, 1940 by submitting that as per the State Amendment applicable to the State of U.P., in every case, where any appointed arbitrator neglects or refuses to act, or becomes incapable of acting or dies, the vacancy shall be supplied by the person designated as mentioned in sub-section (1) of Section 4. Making the aforesaid submissions, it is prayed to dismiss the present appeal. 10. Heard the learned counsel appearing for the respective parties at length. The short question which is posed for consideration before this Court is whether once an officer of the department is appointed as an Arbitrator considering the arbitration clause, whether his mandate to continue the arbitration proceedings shall come to an end on his retirement? The further question which is posed is whether continuance of the arbitration proceedings by such an Arbitrator after his retirement can be said to be committing a misconduct by such a Sole Arbitrator? 11. For the aforesaid question, the relevant arbitration clause required to be considered is clause 52. In the present case, arbitration agreement contains arbitration clause as per clause 52 of the agreement, which is reproduced hereinabove. It provides that on the receipt of the notice from the contractor of his intention to refer the dispute to the arbitration the Chief Engineer shall send to the contractor a list of three officers of the rank of Superintending Engineer or higher, who have not been connected with the work under the contract. Thereafter, the contractor shall within fifteen days of receipt of the list select and communicate to the Chief Engineer the name of one officer from the list, who shall then be appointed as the Sole Arbitrator. It further provides that if a contractor is failed to communicate his selection of name, within the stipulated period, the Chief Engineer shall without delay select one officer from the list and appoint him as the Sole Arbitrator. It further provides that if the Chief Engineer fails to send such a list within 30 days, as stipulated, the contractor shall send a similar list to the Chief Engineer within fifteen days and the Chief Engineer shall then select an officer from the list and appoint him as the Sole Arbitrator within fifteen days. It further provides that the arbitration shall be conducted in accordance with the provisions of the Indian Arbitration Act, 1940. Therefore, the only qualification for appointment as an arbitrator is that he should be the officer of the rank of the Superintending Engineer or higher. Once such an officer is appointed as an Arbitrator, he continues to be the Sole Arbitrator till the arbitration proceedings are concluded unless he incurs the disqualification under the provisions of the Indian Arbitration Act, 1940. Even after his retirement, the arbitration proceedings have to be continued by the same Arbitrator. Clause 52 of the agreement does not provide at all that on the retirement of such an officer, who is appointed as a Sole Arbitrator, he shall not continue as a Sole Arbitrator and/or the mandate to continue with the arbitration proceedings will come to an end. 12. Identical question came to be considered by this Court in the case of Himalayan Construction Co. (supra). The question before this Court was whether the High Court was justified in taking the view that the award, which is made the Rule of the Court by the learned Single Judge was illegal and liable to be set aside on the ground that the arbitrator, who was appointed by designation had retired and has ceased to hold his office when he passed the award. In that case also, the Sole Arbitrator even after his retirement prayed for extension of time and the extension was granted after hearing the parties and as no such objection was raised at that time, and thereafter the nominated Arbitrator, who was the officer, passed the award. This Court overruled the objection that after the retirement of the Sole Arbitrator, who was appointed by designation cannot continue arbitration proceedings after his retirement and cannot pass the award. 13. In the present case also the Sole Arbitrator, who at the relevant time was the Chief Engineer and was qualified to become the Sole Arbitrator was even nominated and/or appointed by the Chief Engineer as per clause 52. Therefore, considering the clause 52 of the agreement, it cannot be said that his mandate to continue with the arbitration proceedings would come to an end on his retirement. 14. It is further required to be noted that even the very objection was raised by the respondents before the learned Civil Judge (Senior Division), Roorkee when the question of extension of time was being considered by the learned Civil Judge (Senior Division), Roorkee. The learned Civil Judge (Senior Division), Roorkee overruled such an objection and granted further one month’s extension to the Sole Arbitrator to complete the arbitration proceedings. The said order has attained the finality. Therefore, thereafter, it was not open for the respondents to again raise such an objection. 15. Now, so far as the reliance placed upon the amendment to Section 4 of the Indian Arbitration Act, 1940 as applicable to the State of U.P. is concerned, the aforesaid has no substance. State amendment of Section 4 of Arbitration Act, 1940 as applicable to State of U.P. upon which the reliance has been placed reads as under:- (2) In every such case where any appointed arbitrator neglects or refuses to act, or becomes incapable of acting or dies, the vacancy shall be supplied by the person designated as aforesaid.” On fair reading of the aforesaid provision, we are afraid that the aforesaid provision shall be applicable at all. It cannot be said that the Sole Arbitrator had become incapable of acting on his retirement from 16. Even the observations made by the High Court in the impugned judgment and order that the Sole Arbitrator has misconducted himself by continuing with the arbitration proceedings after his retirement is also not tenable at law. In the present case, the learned Civil Judge (Senior Division), Roorkee extended the time to the Sole Arbitrator to complete the arbitration proceedings and granted further period of 30 days which was after his retirement and after specifically overruling/rejecting the objections raised by the respondents that after retirement, he cannot continue with the arbitration proceedings. Therefore, once the learned Sole Arbitrator continued with the arbitration proceedings and passed the award within the extended period of time, it cannot be said that he has misconducted himself as he continued with the arbitration proceedings. 17. In view of the above and for the reasons stated above, the impugned judgment and order passed by the High Court quashing and setting aside the award as well as the order passed by the learned Civil Judge (Senior Division), Roorkee making the impugned award Rule of the Court deserves to be quashed and set aside. Accordingly, the present appeal is allowed. The impugned judgment and order passed by the High Court dated 19.06.2007 passed in A.O. No.1489 of 2001 is quashed and set aside and the award passed by the learned Sole Arbitrator dated 08.01.1998 and the order passed by the learned Civil Judge (Senior Division), Roorkee dated 20.04.2001 passed in Original Suit No. 4 of 1998 and Misc. Suit No.3 of 1998 making the award, Rule of the Court are hereby restored. 18. In the facts and circumstances of the case, there shall be no order as to costs.
The Supreme Court recently heard an appeal about the Arbitration Act of 1940, a law that deals with settling disagreements outside of court. The Court decided that a government officer, chosen to settle a dispute (called an arbitrator), can keep doing that job even after they retire from their regular work. Two judges, Justices MR Shah and AS Bopanna, were trying to answer a specific question. They asked: "If a government officer is chosen to be an arbitrator because of a special part of a contract, does his right to continue settling the dispute end when he retires?" They also wondered if an arbitrator who keeps working on a case after retiring is doing something wrong or acting improperly. This whole disagreement started with a contract from 1988 between a construction company and the State of Uttar Pradesh. The contract had a special rule, called an Arbitration Clause, which said the Chief Engineer would be the only person to settle any disputes. The process of settling the dispute began in 1992. The arbitrator made a decision, called an "award," in 1998 that favored the contractor. However, in 2007, the High Court of Uttaranchal canceled this decision. The High Court believed that the arbitrator's right to act ended when he retired, and continuing after retirement was wrong. In 2008, an appeal was filed with the Supreme Court against the High Court's ruling. The Supreme Court, after looking closely at the rules of the Arbitration Act of 1940 and the specific contract, decided that there was no legal error or problem with the arbitrator continuing the case after he retired. Justice Shah wrote the court's decision, explaining: "...the only requirement to be chosen as an arbitrator is that the person must be a Superintending Engineer or a higher-ranking officer. Once this officer is appointed, they remain the only arbitrator until the dispute is fully settled, unless something in the Indian Arbitration Act of 1940 says they can no longer serve. Even if they retire from their job, the same arbitrator must continue handling the case." He also noted, "In this particular case, the sole arbitrator, who at the relevant time was the Chief Engineer and met the requirements, was also chosen and appointed by the Chief Engineer as per clause 52 of the agreement. Because of this clause, we cannot say that his right to continue settling the dispute would stop when he retired." The Supreme Court decided that the High Court's statements – that the sole arbitrator acted improperly by continuing the case after retiring – were not legally sound or valid. As a result, the Supreme Court canceled the High Court's decision and brought back the original decision (award) made by the sole arbitrator on January 8, 1998. Case Details Title: M/s Laxmi Continental Construction Co v. State of UP Judges: Justices MR Shah and AS Bopanna
1. Being aggrieved and dissatisfied with the impugned judgment and order dated 19.06.2007 passed by the High Court of Uttaranchal at Nainital passed in A.O. No. 1489 of 2001 by which the High Court has allowed the said appeal and has set aside the award dated 08.01.1998 made by the learned Arbitrator and the order dated 20.04.2001 passed by the learned Civil Judge (Senior Division), Roorkee making the said award Rule of the Court, original claimant, M/s. Laxmi Continental Construction has preferred the present appeal. 2. The facts leading to the present appeal in nutshell are as under:- 2.1 A contract was entered into between the appellant and the respondents regarding the earthwork including lining of V.U.G.C. from KM 10 to KM 11 vide agreement dated 06.02.1988. During the contract work, various disputes and differences arose between the parties. All disputes and differences between the parties were required to be resolved through arbitration in pursuance of clause 52 of the agreement. Clause 52 of the agreement reads as under:- which the decision is not final and conclusive, shall be referred for arbitration to a sole arbitrator Within thirty days of receipt of notice from the contractor of his intention to refer the dispute to arbitration the Chief Engineer shall send to the contractor a list of three officers of the rank of Superintending Engineer or higher, who have not been connected with the work under this contract. The contractor shall within fifteen days of receipt of this list select and communicate to the Chief Engineer the name of one officer from the list who shall then be appointed as the sole arbitrator. If contractor fails to communicate his selection of name, within the stipulated period, the Chief Engineer shall without delay select one officer arbitrator. If the Chief Engineer fails to send such a list within thirty days, as stipulated, the contractor shall send a similar list to the Chief Engineer within fifteen days. The Chief Engineer shall then select an officer from the list and appoint him as the sole arbitrator within fifteen days. If the Chief Engineer fails to do so the Engineer the name of one officer from the list, who shall then be the sole arbitrator. The arbitration shall be conducted in accordance with the provisions of the Indian Arbitration Act, 1940 or any statutory modification thereof. The decision of the sole arbitrator shall be final and binding on the parties thereto. The arbitrator shall determine the amount of costs of arbitration to be awarded to either parties. Performance under the contract shall continue during arbitration proceedings and payments due withheld, unless they are the subject matter of the arbitration proceedings. awards amount to Rs.1.00 Lakh and above, such awarded. Neither party is entitled to bring a claim to arbitration if arbitrator has not been appointed before the expiration of thirty days after defect liability period.” 2.2 Arbitrator was required to be appointed as provided under clause 52 of the agreement. The Chief Engineer appointed one Shri S.S. Manocha, who at the relevant time was also a Chief Engineer, as an Arbitrator vide order dated 31.10.1992. The Sole Arbitrator entered into the Reference on 19.11.1992 and issued notice to the parties directing them to submit the relevant papers and documents etc. The claimant filed its claim giving all details. The respondents also filed their objections to the said claim of the claimant. The respondents, thus, participated in the proceedings before the Sole Arbitrator. On various dates, the arbitration proceedings were adjourned at the instance of the respondents. During the period, the learned Arbitrator Shri S.S. Manocha superannuated on completion of superannuation age on 30.11.1995. During the hearing, the time for making and publishing the award was extended from time to time by the respondents. That the Superintending Engineer vide its letter dated 09.08.1996 refused to extend the period of arbitration particularly when the arbitration was about to close and the same could not be completed due to lapses, default and seeking adjournments on the part of the respondents. 2.3 The appellant thereafter filed Arbitration Suit No.116 of 1996 before the Civil Judge (Senior Division), Roorkee under Section 28 of the Arbitration Act, 1940 praying for extension of time for making the award and for hearing and conducting the arbitration. The respondents took their objections that the arbitrator has got retired and, therefore, the arbitration proceedings should not be proceeded further by the Sole Arbitrator, who has retired. Even the respondents also filed Misc. Suit No. 122 of 1997 with a prayer for declaring Reference sent to the Sole Arbitrator as inoperative and illegal. 2.4 Both the suits were heard together by the learned Civil Judge (Senior Division), Roorkee. By common order dated 11.12.1997, the learned Civil Judge (Senior Division) extended the period of arbitration for 30 days and directed the Sole Arbitrator, Shri S.S. Manocha to decide the same within the extended period of time. That thereafter, the learned Sole Arbitrator, Shri S.S. Manocha declared the award on 08.01.1998 and ordered the respondents to pay a total sum of Rs.10,97,024.00 with interest on the said sum from 01.10.1990 to 07.01.1998. The respondents filed their objections under Section 30/33 of the Arbitration Act, 1940 vide Misc. Case No. 3 of 1998, challenging the said award and made prayer therein for setting aside the award dated 08.01.1998 before the learned Civil Judge (Senior Division), 2.5 Having found that arbitration clause 52 of the agreement does not provide for terminating the mandate of the Arbitrator on his retirement, the learned Civil Judge (Senior Division), Roorkee overruled the objections raised by the respondents herein and made the award dated 08.01.1998 Rule of the 2.6 Feeling aggrieved, dissatisfied with the judgment and order dated 20.04.2001 passed by the learned Civil Judge (Senior Division), Roorkee, overruling/rejecting the objections of the respondents and making the award dated 08.01.1998 Rule of the Court, the respondents preferred appeal before the High Court and by impugned judgment and order the High Court has allowed the said appeal and has quashed and set aside the award dated 08.01.1998 made by Shri S.S. Manocha, the then Chief Engineer and the Sole Arbitrator and the order dated 20.04.2001 passed by the learned Civil Judge (Senior Division), Roorkee making the award Rule of the Court, solely and mainly on the ground that after the retirement of the Sole Arbitrator, Shri S.S. Manocha as Chief Engineer, he has misconducted himself by proceeding further with the arbitration proceedings. 2.7 Feeling aggrieved and dissatisfied by the impugned judgment and order passed by the High Court, the original claimant has preferred the present appeal. 3. Shri Mukesh Kumar Sharma, learned Advocate has appeared on behalf of the appellant and Shri Ravindra Raizada, learned Senior Advocate has appeared on behalf of the respondents – State of U.P. 4. Shri Mukesh Kumar Sharma, learned Advocate appearing on behalf of the appellant has vehemently submitted that in the facts and circumstances of the case, the High Court has materially erred in quashing and setting aside the award declared by the Sole Arbitrator as well as the order passed by the learned Civil Judge (Senior Division), Roorkee making the award Rule of the Court. 5. It is submitted that both the parties are bound by the arbitration clause contained in the agreement, in particularly, contained in clause 52 of the agreement. It is submitted that clause 52 of the agreement provides for nomination of the arbitrator by the Chief Engineer out of the three officers of the rank of Superintending Engineer or higher, who have not been connected with the work under the contract. It is submitted that clause 52 does not provide that the arbitrator nominated and/or appointed shall have a mandate to continue the arbitration proceedings till he remains in service, and, thereafter, on his retirement his mandate is terminated. It is submitted that in absence of such a provision in the clause 52, once an Arbitrator is appointed considering the qualification mentioned in clause 52, thereafter, he continues as an Arbitrator till the arbitration proceedings are concluded unless clause 52 provides other way round. It is further submitted by learned Advocate appearing on behalf of the appellant that even otherwise the High Court ought to have appreciated that throughout the respondents participated in the arbitration proceedings even after the Sole Arbitrator, Shri S.S. Manocha attained the age of superannuation. It is submitted that High Court has also not appreciated that even thereafter by order dated 11.12.1997, the learned Civil Judge (Senior Division), Roorkee extended the time to complete the arbitration proceedings after overruling the objections raised by the respondents and that after the retirement, Shri S.S. Manocha, the learned Sole Arbitrator cannot continue with the arbitration proceedings. It is submitted that the order dated 11.12.1997 passed by the learned Civil Judge (Senior Division), Roorkee remained unchallenged and attained the finality. It is submitted, therefore, that thereafter it was not open for the respondents again to raise the same objection that after the learned Sole Arbitrator, Shri S.S. Manocha attained the age of superannuation on 30.11.1995, he cannot continue with the arbitration proceedings, the objection which as such was overruled/rejected by the learned Civil Judge (Senior Division), Roorkee while passing the order dated 11.12.1997. 6. Making the aforesaid submissions and relying upon the decisions of this Court in Himalayan Construction Co. Vs. Executive Engineer, Irrigation Division, J&K and Anr., (2001) 9 SCC 359, Prasun Roy Vs. Calcutta Metropolitan Development Authority and Anr., (1987) 4 SCC 217 and N. Chellappan Vs. Secretary, Kerala State Electricity Board and Anr., (1975) 1 SCC 289, learned Advocate appearing for the appellant prayed to allow the present appeal and quash and set aside the impugned judgment and order passed by the High Court and consequently to restore the award declared by the Sole Arbitrator and the order passed by the learned Civil Judge (Senior Division), Roorkee making the award Rule of the Court. 7. The present appeal is opposed by Shri Raizada, learned Senior Advocate appearing on behalf of the respondents. 8. It is vehemently submitted by Shri Raizada, learned Senior Advocate appearing on behalf of the respondents that it is not in dispute that the learned Sole Arbitrator was appointed as per clause 52 and as he was the Chief Engineer. It is submitted, therefore, that once he retired on attaining the age of superannuation and he did not continue as a Chief Engineer, his mandate is terminated to continue with the arbitration proceedings and a new Arbitrator is to be nominated and appointed afresh as per clause 52 of the agreement. It is further submitted that right from the retirement of the Sole Arbitrator, the respondents raised an objection against his continuing with the arbitration proceedings and despite the same, he continued with the arbitration proceedings even after his retirement, as rightly observed by the High Court, he has misconducted himself, and, therefore, the High Court has rightly quashed and set aside the award declared by Shri S.S. Manocha, the learned Sole Arbitrator, who is held to have been 9. Shri Raizada, learned Senior Advocate has also heavily relied upon the State Amendment of Section 4 of the Arbitration Act, 1940 by submitting that as per the State Amendment applicable to the State of U.P., in every case, where any appointed arbitrator neglects or refuses to act, or becomes incapable of acting or dies, the vacancy shall be supplied by the person designated as mentioned in sub-section (1) of Section 4. Making the aforesaid submissions, it is prayed to dismiss the present appeal. 10. Heard the learned counsel appearing for the respective parties at length. The short question which is posed for consideration before this Court is whether once an officer of the department is appointed as an Arbitrator considering the arbitration clause, whether his mandate to continue the arbitration proceedings shall come to an end on his retirement? The further question which is posed is whether continuance of the arbitration proceedings by such an Arbitrator after his retirement can be said to be committing a misconduct by such a Sole Arbitrator? 11. For the aforesaid question, the relevant arbitration clause required to be considered is clause 52. In the present case, arbitration agreement contains arbitration clause as per clause 52 of the agreement, which is reproduced hereinabove. It provides that on the receipt of the notice from the contractor of his intention to refer the dispute to the arbitration the Chief Engineer shall send to the contractor a list of three officers of the rank of Superintending Engineer or higher, who have not been connected with the work under the contract. Thereafter, the contractor shall within fifteen days of receipt of the list select and communicate to the Chief Engineer the name of one officer from the list, who shall then be appointed as the Sole Arbitrator. It further provides that if a contractor is failed to communicate his selection of name, within the stipulated period, the Chief Engineer shall without delay select one officer from the list and appoint him as the Sole Arbitrator. It further provides that if the Chief Engineer fails to send such a list within 30 days, as stipulated, the contractor shall send a similar list to the Chief Engineer within fifteen days and the Chief Engineer shall then select an officer from the list and appoint him as the Sole Arbitrator within fifteen days. It further provides that the arbitration shall be conducted in accordance with the provisions of the Indian Arbitration Act, 1940. Therefore, the only qualification for appointment as an arbitrator is that he should be the officer of the rank of the Superintending Engineer or higher. Once such an officer is appointed as an Arbitrator, he continues to be the Sole Arbitrator till the arbitration proceedings are concluded unless he incurs the disqualification under the provisions of the Indian Arbitration Act, 1940. Even after his retirement, the arbitration proceedings have to be continued by the same Arbitrator. Clause 52 of the agreement does not provide at all that on the retirement of such an officer, who is appointed as a Sole Arbitrator, he shall not continue as a Sole Arbitrator and/or the mandate to continue with the arbitration proceedings will come to an end. 12. Identical question came to be considered by this Court in the case of Himalayan Construction Co. (supra). The question before this Court was whether the High Court was justified in taking the view that the award, which is made the Rule of the Court by the learned Single Judge was illegal and liable to be set aside on the ground that the arbitrator, who was appointed by designation had retired and has ceased to hold his office when he passed the award. In that case also, the Sole Arbitrator even after his retirement prayed for extension of time and the extension was granted after hearing the parties and as no such objection was raised at that time, and thereafter the nominated Arbitrator, who was the officer, passed the award. This Court overruled the objection that after the retirement of the Sole Arbitrator, who was appointed by designation cannot continue arbitration proceedings after his retirement and cannot pass the award. 13. In the present case also the Sole Arbitrator, who at the relevant time was the Chief Engineer and was qualified to become the Sole Arbitrator was even nominated and/or appointed by the Chief Engineer as per clause 52. Therefore, considering the clause 52 of the agreement, it cannot be said that his mandate to continue with the arbitration proceedings would come to an end on his retirement. 14. It is further required to be noted that even the very objection was raised by the respondents before the learned Civil Judge (Senior Division), Roorkee when the question of extension of time was being considered by the learned Civil Judge (Senior Division), Roorkee. The learned Civil Judge (Senior Division), Roorkee overruled such an objection and granted further one month’s extension to the Sole Arbitrator to complete the arbitration proceedings. The said order has attained the finality. Therefore, thereafter, it was not open for the respondents to again raise such an objection. 15. Now, so far as the reliance placed upon the amendment to Section 4 of the Indian Arbitration Act, 1940 as applicable to the State of U.P. is concerned, the aforesaid has no substance. State amendment of Section 4 of Arbitration Act, 1940 as applicable to State of U.P. upon which the reliance has been placed reads as under:- (2) In every such case where any appointed arbitrator neglects or refuses to act, or becomes incapable of acting or dies, the vacancy shall be supplied by the person designated as aforesaid.” On fair reading of the aforesaid provision, we are afraid that the aforesaid provision shall be applicable at all. It cannot be said that the Sole Arbitrator had become incapable of acting on his retirement from 16. Even the observations made by the High Court in the impugned judgment and order that the Sole Arbitrator has misconducted himself by continuing with the arbitration proceedings after his retirement is also not tenable at law. In the present case, the learned Civil Judge (Senior Division), Roorkee extended the time to the Sole Arbitrator to complete the arbitration proceedings and granted further period of 30 days which was after his retirement and after specifically overruling/rejecting the objections raised by the respondents that after retirement, he cannot continue with the arbitration proceedings. Therefore, once the learned Sole Arbitrator continued with the arbitration proceedings and passed the award within the extended period of time, it cannot be said that he has misconducted himself as he continued with the arbitration proceedings. 17. In view of the above and for the reasons stated above, the impugned judgment and order passed by the High Court quashing and setting aside the award as well as the order passed by the learned Civil Judge (Senior Division), Roorkee making the impugned award Rule of the Court deserves to be quashed and set aside. Accordingly, the present appeal is allowed. The impugned judgment and order passed by the High Court dated 19.06.2007 passed in A.O. No.1489 of 2001 is quashed and set aside and the award passed by the learned Sole Arbitrator dated 08.01.1998 and the order passed by the learned Civil Judge (Senior Division), Roorkee dated 20.04.2001 passed in Original Suit No. 4 of 1998 and Misc. Suit No.3 of 1998 making the award, Rule of the Court are hereby restored. 18. In the facts and circumstances of the case, there shall be no order as to costs.
The Supreme Court recently heard an appeal about the Arbitration Act of 1940, a law that deals with settling disagreements outside of court. The Court decided that a government officer, chosen to settle a dispute (called an arbitrator), can keep doing that job even after they retire from their regular work. Two judges, Justices MR Shah and AS Bopanna, were trying to answer a specific question. They asked: "If a government officer is chosen to be an arbitrator because of a special part of a contract, does his right to continue settling the dispute end when he retires?" They also wondered if an arbitrator who keeps working on a case after retiring is doing something wrong or acting improperly. This whole disagreement started with a contract from 1988 between a construction company and the State of Uttar Pradesh. The contract had a special rule, called an Arbitration Clause, which said the Chief Engineer would be the only person to settle any disputes. The process of settling the dispute began in 1992. The arbitrator made a decision, called an "award," in 1998 that favored the contractor. However, in 2007, the High Court of Uttaranchal canceled this decision. The High Court believed that the arbitrator's right to act ended when he retired, and continuing after retirement was wrong. In 2008, an appeal was filed with the Supreme Court against the High Court's ruling. The Supreme Court, after looking closely at the rules of the Arbitration Act of 1940 and the specific contract, decided that there was no legal error or problem with the arbitrator continuing the case after he retired. Justice Shah wrote the court's decision, explaining: "...the only requirement to be chosen as an arbitrator is that the person must be a Superintending Engineer or a higher-ranking officer. Once this officer is appointed, they remain the only arbitrator until the dispute is fully settled, unless something in the Indian Arbitration Act of 1940 says they can no longer serve. Even if they retire from their job, the same arbitrator must continue handling the case." He also noted, "In this particular case, the sole arbitrator, who at the relevant time was the Chief Engineer and met the requirements, was also chosen and appointed by the Chief Engineer as per clause 52 of the agreement. Because of this clause, we cannot say that his right to continue settling the dispute would stop when he retired." The Supreme Court decided that the High Court's statements – that the sole arbitrator acted improperly by continuing the case after retiring – were not legally sound or valid. As a result, the Supreme Court canceled the High Court's decision and brought back the original decision (award) made by the sole arbitrator on January 8, 1998. Case Details Title: M/s Laxmi Continental Construction Co v. State of UP Judges: Justices MR Shah and AS Bopanna
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1) The petitioner has challenged the complaint filed by the respondent against it before the Court of learned Chief Judicial Magistrate, Anantnag, as also order dated 31.07.2018 passed by the learned Magistrate in the said 2) Before coming to the grounds of challenge raised in the petition, it would be apt to refer to the allegations contained in the complaint filed by the respondent. 3) A complaint came to be filed by respondent before learned Chief Judicial Magistrate, Anantnag, seeking a direction for conducting enquiry/registration of FIR against the officials of the State Bank of India, Branch office Anantnag. The particulars of the officials of the Bank are given in para (7) of the complaint. It was alleged in the complaint that respondent is maintaining a cash credit account No.11419005877 with State Bank of India, Branch Office, Anantnag. It was further averred that on 29.01.2018, it came to the knowledge of the complainant/respondent that a huge amount has been credited and debited in his said account with effect from 01.01.2009 to 03.04.2014 at his back and without his knowledge, the details of which are projected in the statement of account issued by the Bank. It is also averred that the officials of the petitioner Bank have deceitfully and dishonestly used his account for ulterior motives supposedly in the name of ‘Window Dressing”, a process of operating the accounts, the knowledge of which the respondent herein got through reliable sources. The respondent is alleged to have made a representation on 31.01.2018 to the Branch Manager of the Bank, who issued revised statement of account after deleting the fictitious entries and also issued a certificate to the effect that inflated debit and credit entries made in the account do not belong to the account holder but the same have been made by the Bank officials as a means of “Window Dressing”. It was also alleged in the complaint that by making these illegal/fictitious transactions, the officials of the Bank have committed serious offences thereby tarnishing image of the respondent/complainant. It is contended that due to these fictitious credit and debit entries in the account of the respondent/complainant, his position became dubious before the Income Tax Department, as a result whereof, the Income Tax Authorities issued notices under Section 133(6) of the Income Tax Act for the year 2010- 2011 and 2011-2012 against the respondent/complainant. With these allegations, the respondent/complainant sought direction that the matter be investigated under law. 4) It appears that on 17.04.2018, another application was made by the respondent/complainant whereby he sought permission to place on record the reply dated 09.04.2018 sent to him by the Branch Manager, State Bank of India, 5) Upon the aforesaid complaint filed by respondent/complainant, the learned Chief Judicial Magistrate, Anantnag, recorded preliminary statement of the respondent/complainant and one more witness, whereafter the learned Magistrate recorded in his order dated 17.04.2018, that the matter needs to be enquired into. On 31.07.2018, another order came to be passed by the learned Magistrate, whereby the learned Magistrate forwarded the complainant of respondent/complainant to police for conducting preliminary verification. It was observed in the said order that the record highlights the fact that the officials/unknown persons have operated the bank account of the complainant illegally thereby inflating the bank account without the knowledge of the complainant and fictitious entries/transactions have been made in the account head of the complainant, which requires a detailed enquiry. 6) The petitioner has challenged the impugned order as well as the impugned complaint filed by the respondent/complainant on the ground that the allegations made in the complaint do not make out any offence against the petitioner nor recording of entries in the account of respondent constitute any offence under any penal law. It is further contended that the first application filed by the respondents before the learned Magistrate was sent to the police for enquiry, as such, when second application was made by respondent before the learned Magistrate on 17.04.2018, it was not open to the learned Magistrate to direct enquiry in terms of Section 202 of Cr. P. C. It is also contended that the alleged entries were made from the year 2009 to 2014, but the complaint has been filed by the complainant/respondent in February, 2018. Thus, the same is barred by limitation. Another contention that has been raised by the petitioner is that the officials of the petitioner Bank being public servants, cognizance of offences against them cannot be taken without previous sanction and that this aspect of the matter has been ignored by the learned Magistrate. 7) I have heard learned counsel for the parties and perused the material on record. 3) So far as the first contention of learned counsel for the petitioner that no offence is made out against the officials of the petitioner Bank is concerned, the determination of merits of the said contention at this moment of time when no process has been issued against the officials of the petitioner Bank would be premature. Any opinion that may be rendered by this Court in this regard would definitely have a bearing upon the course that may be adopted by the learned Chief Judicial Magistrate after getting the report of enquiry from the police. The petitioner has, it seems, prematurely approached this Court when not even process has been issued against the officials of the petitioner Bank, which means that learned Chief Judicial Magistrate has yet to make up his mind whether any offence is made out on the basis of the material before him. In fact, the enquiry report has still not been produced by the police before the learned Chief Judicial Magistrate. It is only thereafter that the learned Magistrate would be in a position to make a, prima facie, opinion as to whether any offence is made out against the officials of the petitioner Bank. The filing of the instant petition, even prior to issuance of process against the officials of the petitioner Bank, is premature, as a prospective accused has no right or locus standi to be heard on the question whether the process should be issued against him or not. 4) Coming to the second contention raised by learned counsel for the petitioner that it was not open to the learned Magistrate to direct the police to conduct the preliminary verification, the same also appears to be without any merit. A perusal of the trial court record shows that there is no order on record of the file that would indicate that the first complaint filed by the respondent was referred to the police for enquiry by the order of the learned Magistrate. There is only an endorsement by clerk of the Court of Chief Judicial Magistrate, which records that earlier application has been sent for enquiry but no order of the Court could be found on the record of the file to this effect. Although respondent in his complaint filed before the learned Chief Judicial Magistrate had prayed that an FIR should be registered against the officials of the petitioner Bank, yet the learned Magistrate instead of directing registration of the FIR in terms of Section 156(3) of Cr. P. C recorded the preliminary evidence and took cognizance of the complaint, whereafter in terms of Section 202 of Cr. P. C, a direction was issued on 31.07.2018 asking the concerned police to conduct the preliminary verification. The course adopted by the learned Chief Judicial Magistrate is in accordance with law and cannot be found fault 5) The third contention which has been raised by learned counsel for the petitioner is with regard to the bar of limitation. According to the petitioner, cognizance of the offences alleged in the complaint cannot be taken in view of the bar contained in Section 538-B of J&K Cr. P. C. The argument of the learned counsel is misplaced for the reason that respondent in the complaint has alleged commission of offences under Section 409, 420, 120-B, 467, 471 of RPC. Some of these offences carry punishment upto imprisonment for life. Therefore, provisions contained in section 538-B of J&K Cr. P. C, which create a bar to take cognizance after lapse of the period of limitation, is not attracted to the instant case, as the bar to take cognizance of offences carrying punishment of life imprisonment is not applicable at all. 6) Lastly, it has been argued by learned counsel for the petitioner that officials of the petitioner Bank are public servants and, as such, cognizance of offences against them cannot be taken without previous sanction. He has pressed into service provisions of Section 197 of Cr. P. C in this regard. 7) It is true that the officials of the petitioner Bank come within the definition of public servant as contained in Section 21 of IPC but the officials of the bank are not the public servants who cannot be removed from their office save by or with the sanction of the Government. The appointing and removing authority of the officials of the petitioner Bank is not the Government but it is the competent authority of the State Bank of India who is empowered to do so. Thus, the provisions of Section 197 of the Cr. P. C are not attracted to the case of the petitioners. I am supported in my aforesaid view by the judgment of the High Court of Madras in the case of Ramesh Gelli vs. The Inspector of Police, Central Bureau of Investigation, 2017 Supreme (Mad) 1915, wherein, while considering this question, the Court observed as under: “18. Even that is so, it is not the Government who has appointed him and it is not the competent authority to remove him from office. Therefore, banking sector, being governed by the Reserve Bank of India and considered as virtue of Section 46A of Banking Regulation Act, the petitioner is deemed to be a ‘public servant’ for the purpose of provisions under the Prevention of Corruption Act. It cannot be extended to I.P.C. 12. Even for the sake of argument, if the petitioner should be considered as a ‘public servant’ for I.P.C offences also, the protection available under Section 197 Cr. P. C, is not available for the petitioner herein since the conditions in-built in Section 197 Cr. P. C, which say a person removable from office save or by sanction to committed in discharge of official duty, does not attract to the facts of the present case.” 8) From the foregoing enunciation of law on the subject, it is clear that an official of the bank may qualify to be a public servant and for prosecuting such an official in connection with offences under the provisions of Prevention of Corruption Act, a previous sanction has to be obtained but so far as prosecution of officials of the bank in connection with offences under I.P.C/RPC are concerned, no previous sanction is 9) For the foregoing reasons, I do not find any merit in this petition. The same is, accordingly, dismissed. It is, however, provided that the learned Magistrate shall, after obtaining the enquiry report from the enquiry officer, consider the material on record and thereafter take a decision as to whether any offence is made out against the officials of the petitioner Bank without being influenced by the observations made by him in his order dated 31.07.2018. 10) A copy of this order be sent to the learned Magistrate for information and compliance.
The High Court in Jammu and Kashmir and Ladakh said that no special permission is needed to charge bank officials with crimes. This applies to crimes under general laws, like the Indian Penal Code. Justice Sanjay Dhar's court team also noted something important. The government does not hire or fire these bank officials. Instead, the State Bank of India's own management has that power. This means a specific law, Section 197 of the Criminal Procedure Code, does not apply to bank officials. That law usually protects judges and government workers from being charged without special permission. The case in brief The situation started when a person, the complainant, filed an official complaint with a judge in Anantnag. They asked the judge to order an investigation or for the police to file a First Information Report (FIR). This was against employees of the State Bank of India's Anantnag branch. The complaint claimed that bank employees or unknown people illegally used the complainant's bank account. They supposedly increased the money in the account without the owner knowing. Also, fake records or transactions were made in it. The judge decided that the issue needed to be looked into. So, he sent the complaint to the police. The police were asked to do an initial check of the claims. The bank officials disagreed with the judge's order and the complaint itself. They argued that they are "public servants." Because of this, a court cannot even begin to consider crimes against them without getting special permission first. They believed the judge had ignored this important point. Court's order To begin with, the High Court felt that the bank officials' appeal was too early. No formal legal steps, like sending out summons, had even been taken against them yet. This meant the Chief Judicial Magistrate had not yet decided if the information he had pointed to an actual crime. Also, the bank officials argued that special permission was missing. The Court agreed that bank officials fit the description of a "public servant" under Section 21 of the Indian Penal Code. However, the Court further explained that these bank officials are not the kind of public servants who can only be removed from their jobs with the government's permission. The court emphasized that a bank official is a public servant. Special permission is needed to charge them under anti-corruption laws. But, no such permission is necessary when charging them with crimes under general laws like the Indian Penal Code. After saying this, the court rejected the bank officials' appeal.
1) The petitioner has challenged the complaint filed by the respondent against it before the Court of learned Chief Judicial Magistrate, Anantnag, as also order dated 31.07.2018 passed by the learned Magistrate in the said 2) Before coming to the grounds of challenge raised in the petition, it would be apt to refer to the allegations contained in the complaint filed by the respondent. 3) A complaint came to be filed by respondent before learned Chief Judicial Magistrate, Anantnag, seeking a direction for conducting enquiry/registration of FIR against the officials of the State Bank of India, Branch office Anantnag. The particulars of the officials of the Bank are given in para (7) of the complaint. It was alleged in the complaint that respondent is maintaining a cash credit account No.11419005877 with State Bank of India, Branch Office, Anantnag. It was further averred that on 29.01.2018, it came to the knowledge of the complainant/respondent that a huge amount has been credited and debited in his said account with effect from 01.01.2009 to 03.04.2014 at his back and without his knowledge, the details of which are projected in the statement of account issued by the Bank. It is also averred that the officials of the petitioner Bank have deceitfully and dishonestly used his account for ulterior motives supposedly in the name of ‘Window Dressing”, a process of operating the accounts, the knowledge of which the respondent herein got through reliable sources. The respondent is alleged to have made a representation on 31.01.2018 to the Branch Manager of the Bank, who issued revised statement of account after deleting the fictitious entries and also issued a certificate to the effect that inflated debit and credit entries made in the account do not belong to the account holder but the same have been made by the Bank officials as a means of “Window Dressing”. It was also alleged in the complaint that by making these illegal/fictitious transactions, the officials of the Bank have committed serious offences thereby tarnishing image of the respondent/complainant. It is contended that due to these fictitious credit and debit entries in the account of the respondent/complainant, his position became dubious before the Income Tax Department, as a result whereof, the Income Tax Authorities issued notices under Section 133(6) of the Income Tax Act for the year 2010- 2011 and 2011-2012 against the respondent/complainant. With these allegations, the respondent/complainant sought direction that the matter be investigated under law. 4) It appears that on 17.04.2018, another application was made by the respondent/complainant whereby he sought permission to place on record the reply dated 09.04.2018 sent to him by the Branch Manager, State Bank of India, 5) Upon the aforesaid complaint filed by respondent/complainant, the learned Chief Judicial Magistrate, Anantnag, recorded preliminary statement of the respondent/complainant and one more witness, whereafter the learned Magistrate recorded in his order dated 17.04.2018, that the matter needs to be enquired into. On 31.07.2018, another order came to be passed by the learned Magistrate, whereby the learned Magistrate forwarded the complainant of respondent/complainant to police for conducting preliminary verification. It was observed in the said order that the record highlights the fact that the officials/unknown persons have operated the bank account of the complainant illegally thereby inflating the bank account without the knowledge of the complainant and fictitious entries/transactions have been made in the account head of the complainant, which requires a detailed enquiry. 6) The petitioner has challenged the impugned order as well as the impugned complaint filed by the respondent/complainant on the ground that the allegations made in the complaint do not make out any offence against the petitioner nor recording of entries in the account of respondent constitute any offence under any penal law. It is further contended that the first application filed by the respondents before the learned Magistrate was sent to the police for enquiry, as such, when second application was made by respondent before the learned Magistrate on 17.04.2018, it was not open to the learned Magistrate to direct enquiry in terms of Section 202 of Cr. P. C. It is also contended that the alleged entries were made from the year 2009 to 2014, but the complaint has been filed by the complainant/respondent in February, 2018. Thus, the same is barred by limitation. Another contention that has been raised by the petitioner is that the officials of the petitioner Bank being public servants, cognizance of offences against them cannot be taken without previous sanction and that this aspect of the matter has been ignored by the learned Magistrate. 7) I have heard learned counsel for the parties and perused the material on record. 3) So far as the first contention of learned counsel for the petitioner that no offence is made out against the officials of the petitioner Bank is concerned, the determination of merits of the said contention at this moment of time when no process has been issued against the officials of the petitioner Bank would be premature. Any opinion that may be rendered by this Court in this regard would definitely have a bearing upon the course that may be adopted by the learned Chief Judicial Magistrate after getting the report of enquiry from the police. The petitioner has, it seems, prematurely approached this Court when not even process has been issued against the officials of the petitioner Bank, which means that learned Chief Judicial Magistrate has yet to make up his mind whether any offence is made out on the basis of the material before him. In fact, the enquiry report has still not been produced by the police before the learned Chief Judicial Magistrate. It is only thereafter that the learned Magistrate would be in a position to make a, prima facie, opinion as to whether any offence is made out against the officials of the petitioner Bank. The filing of the instant petition, even prior to issuance of process against the officials of the petitioner Bank, is premature, as a prospective accused has no right or locus standi to be heard on the question whether the process should be issued against him or not. 4) Coming to the second contention raised by learned counsel for the petitioner that it was not open to the learned Magistrate to direct the police to conduct the preliminary verification, the same also appears to be without any merit. A perusal of the trial court record shows that there is no order on record of the file that would indicate that the first complaint filed by the respondent was referred to the police for enquiry by the order of the learned Magistrate. There is only an endorsement by clerk of the Court of Chief Judicial Magistrate, which records that earlier application has been sent for enquiry but no order of the Court could be found on the record of the file to this effect. Although respondent in his complaint filed before the learned Chief Judicial Magistrate had prayed that an FIR should be registered against the officials of the petitioner Bank, yet the learned Magistrate instead of directing registration of the FIR in terms of Section 156(3) of Cr. P. C recorded the preliminary evidence and took cognizance of the complaint, whereafter in terms of Section 202 of Cr. P. C, a direction was issued on 31.07.2018 asking the concerned police to conduct the preliminary verification. The course adopted by the learned Chief Judicial Magistrate is in accordance with law and cannot be found fault 5) The third contention which has been raised by learned counsel for the petitioner is with regard to the bar of limitation. According to the petitioner, cognizance of the offences alleged in the complaint cannot be taken in view of the bar contained in Section 538-B of J&K Cr. P. C. The argument of the learned counsel is misplaced for the reason that respondent in the complaint has alleged commission of offences under Section 409, 420, 120-B, 467, 471 of RPC. Some of these offences carry punishment upto imprisonment for life. Therefore, provisions contained in section 538-B of J&K Cr. P. C, which create a bar to take cognizance after lapse of the period of limitation, is not attracted to the instant case, as the bar to take cognizance of offences carrying punishment of life imprisonment is not applicable at all. 6) Lastly, it has been argued by learned counsel for the petitioner that officials of the petitioner Bank are public servants and, as such, cognizance of offences against them cannot be taken without previous sanction. He has pressed into service provisions of Section 197 of Cr. P. C in this regard. 7) It is true that the officials of the petitioner Bank come within the definition of public servant as contained in Section 21 of IPC but the officials of the bank are not the public servants who cannot be removed from their office save by or with the sanction of the Government. The appointing and removing authority of the officials of the petitioner Bank is not the Government but it is the competent authority of the State Bank of India who is empowered to do so. Thus, the provisions of Section 197 of the Cr. P. C are not attracted to the case of the petitioners. I am supported in my aforesaid view by the judgment of the High Court of Madras in the case of Ramesh Gelli vs. The Inspector of Police, Central Bureau of Investigation, 2017 Supreme (Mad) 1915, wherein, while considering this question, the Court observed as under: “18. Even that is so, it is not the Government who has appointed him and it is not the competent authority to remove him from office. Therefore, banking sector, being governed by the Reserve Bank of India and considered as virtue of Section 46A of Banking Regulation Act, the petitioner is deemed to be a ‘public servant’ for the purpose of provisions under the Prevention of Corruption Act. It cannot be extended to I.P.C. 12. Even for the sake of argument, if the petitioner should be considered as a ‘public servant’ for I.P.C offences also, the protection available under Section 197 Cr. P. C, is not available for the petitioner herein since the conditions in-built in Section 197 Cr. P. C, which say a person removable from office save or by sanction to committed in discharge of official duty, does not attract to the facts of the present case.” 8) From the foregoing enunciation of law on the subject, it is clear that an official of the bank may qualify to be a public servant and for prosecuting such an official in connection with offences under the provisions of Prevention of Corruption Act, a previous sanction has to be obtained but so far as prosecution of officials of the bank in connection with offences under I.P.C/RPC are concerned, no previous sanction is 9) For the foregoing reasons, I do not find any merit in this petition. The same is, accordingly, dismissed. It is, however, provided that the learned Magistrate shall, after obtaining the enquiry report from the enquiry officer, consider the material on record and thereafter take a decision as to whether any offence is made out against the officials of the petitioner Bank without being influenced by the observations made by him in his order dated 31.07.2018. 10) A copy of this order be sent to the learned Magistrate for information and compliance.
The High Court in Jammu and Kashmir and Ladakh said that no special permission is needed to charge bank officials with crimes. This applies to crimes under general laws, like the Indian Penal Code. Justice Sanjay Dhar's court team also noted something important. The government does not hire or fire these bank officials. Instead, the State Bank of India's own management has that power. This means a specific law, Section 197 of the Criminal Procedure Code, does not apply to bank officials. That law usually protects judges and government workers from being charged without special permission. The case in brief The situation started when a person, the complainant, filed an official complaint with a judge in Anantnag. They asked the judge to order an investigation or for the police to file a First Information Report (FIR). This was against employees of the State Bank of India's Anantnag branch. The complaint claimed that bank employees or unknown people illegally used the complainant's bank account. They supposedly increased the money in the account without the owner knowing. Also, fake records or transactions were made in it. The judge decided that the issue needed to be looked into. So, he sent the complaint to the police. The police were asked to do an initial check of the claims. The bank officials disagreed with the judge's order and the complaint itself. They argued that they are "public servants." Because of this, a court cannot even begin to consider crimes against them without getting special permission first. They believed the judge had ignored this important point. Court's order To begin with, the High Court felt that the bank officials' appeal was too early. No formal legal steps, like sending out summons, had even been taken against them yet. This meant the Chief Judicial Magistrate had not yet decided if the information he had pointed to an actual crime. Also, the bank officials argued that special permission was missing. The Court agreed that bank officials fit the description of a "public servant" under Section 21 of the Indian Penal Code. However, the Court further explained that these bank officials are not the kind of public servants who can only be removed from their jobs with the government's permission. The court emphasized that a bank official is a public servant. Special permission is needed to charge them under anti-corruption laws. But, no such permission is necessary when charging them with crimes under general laws like the Indian Penal Code. After saying this, the court rejected the bank officials' appeal.
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This case is referred to our Hon’ble High Court under Section 113 read with Order XLVI Rule 1 of the Code of Civil Procedure, 1908, to consider the following aspects: 1) To declare sub-sections (2) and (3) of Section 23- A of the Karnataka Civil Courts Act, 1964 [inserted vide Karnataka Civil Courts (Second 28/1978 with effect from 1/2/1979)], are ultra vires the Constitution of India. 2) To consider if the Notification bearing No. GOB 460/78 issued by our Hon’ble High Court, published in the Gazette on 29-03-1979, clothes the powers of a District Judge under the Indian Succession Act, 1925, upon Senior Civil Judges or Civil Judges in the State of Karnataka, in respect of issuance of Probates and Letters of Administration, in view of the divergent views expressed in the decisions of co-ordinate benches of our Hon’ble High Court.” 2. Brief facts of the case are, one Smt.Boppanda Boji Kalappa executed her Will on May 3, 1995. First respondent filed an application in P & SC No.2/1996 on the file of learned Principal District Judge, Kodagu, Madikeri under Section 276 of the Indian Succession Act, 19951, for grant of Probate. Upon being contested, probate petition was converted as O.S. No.1/1997. 3. On December 11, 2003, the suit was transferred to the Court of Civil Judge, Senior Division, Kodagu on the ground of valuation and it was re-numbered as O.S. No.3/2004. 4. On February 28, 2006, as per the order passed by the learned District Judge, the case was again transferred to the Court of District Judge, Madikeri and re-numbered as O.S. No.7/2006. ‘Indian Succession Act’ for short 5. By order dated February 2, 2013, the suit was again transferred to the Court of Senior Civil Judge, Madikeri, in view of Notification No. GOB 460/78 issued by this Court under Section 23-A of the Karnataka Civil Courts Act, 19642 and the suit was re-numbered as O.S. was decreed by the learned Senior Civil Judge, Madikeri holding that the Will was proved in favour of first respondent. Feeling aggrieved, the first defendant in the suit filed R.A. No.11/2017 in the Court of First Additional District Judge, Kodagu, 7. It was contended on behalf of the appellant before the learned District Judge that the Court of Senior Civil Judge did not have jurisdiction ‘Civil Courts Act’ for short to issue the Probate of the Will because, as per Notification No.GOB 460/78, the Civil Judges and Senior Civil Judges had jurisdiction to adjudicate upon the cases relating to issuance of Succession Certificates. Therefore, in matters relating to issuance of Probate the jurisdiction vested with the 8. It was contended on behalf of the first respondent that under Section 23-A of the Civil Courts Act, the High Court is empowered to invest all or any powers of the District Judge under the Indian Succession Act. The amendment incorporating Section 23-A in the Civil Courts Act had received the accent of the President on November 22, 1978. By the Notification No. GOB 560/1978, all Civil Judges and Senior Civil Judges were invested with the powers of the District Judge. 9. Before the learned District Judge, following authorities were cited: • B.R. Jayanthi Vs. Radhamma and others3 wherein, the challenge to the jurisdiction of Civil Judge on a transferred Probate Petition was negatived; • B.R. Jayanthi Vs. Radhamma and others4 wherein, this Court had relegated the appellants therein to file an appeal before the learned District Judge in view of Section 23-A of the Act and the Notification issued by this Ltd., and others5 wherein, the decision in ILR 2008 KAR 4612 was followed. 10. In view of the above, the learned District Judge framed following questions for his 1) Whether sub-sections (2) and (3) of Section 23-A of the Karnataka Civil Courts Act, 1964 [inserted vide Karnataka Civil Courts {Second RFA No.1324/2012 decided on 13.12.2012. W.P. No.39334/2015 decided on 23.09.2015 28/1978 with effect from 1/2/1979)], are ultra vires the Constitution of India? 2) Whether the Notification bearing No. GOB 460/78 issued by our Hon’ble High Court, published in the Gazette on 29-03-1979, clothes the powers of a District Judge under the Indian Succession Act, 1925, upon Senior Civil Judges or Civil Judges in the State of Karnataka, in respect of issuance of Probates and Letters of and answered the first question in the affirmative and held that the second question requires consideration in view of divergent views expressed by this Court. 11. Shri. A.V. Gangadharappa, learned Advocate for the appellant submitted that under Section 276 of the Indian Succession Act, 1925, an application for Probate has to be filed before the learned District Judge and it was rightly filed by the first respondent at the first instance. However, in view of the Notification dated March 12, 1979, the suit was transferred to the Court of the learned Senior Civil Judge, Madikeri and the same has been decreed. Placing reliance on Mrs. Joyce Enet Ugare Vs. James I. P. Roche6, he submitted that the power to invest jurisdiction in any inferior Courts in grade to the Court of District Judge is only in relation to proceedings for issue of Succession Certificate provided under Part-X of the Indian Succession Act. Therefore, the judgment and decree passed by the learned Senior Civil Judge is a nullity. Consequently, the appeal filed before the learned District Judge is not maintainable and this Court may direct the learned District Judge to conduct the proceedings denova. 12. In reply, Smt. Laksha Kalappa for the respondents submitted that the Notification issued in the year 1979 is under Section 23-A of the Civil Courts Act. By the said Notification, all powers of the District Judge have been conferred upon the M.F.A. No.3618/2010 decided on 19.06.2012 (para 8) Civil Judges. Therefore, the judgment and decree passed by the Senior Civil Judge is in accordance with law. Consequently, the appeal is maintainable before the learned District Judge. 13. We have carefully considered the Reference order, the submissions of learned Advocates on both sides and perused the records. 14. Section 388 of the Indian Succession Act reads as follows: “388. Investiture of inferior courts with jurisdiction of District Court for purposes of this Act.— (1) The State Government may by notification in the Official Gazette, invest any court inferior in grade to a District Judge with power to exercise the functions of a District Judge under this Part. (2) Any inferior court so invested shall, within the local limits of its jurisdiction, have concurrent jurisdiction with the District Judge in the exercise of all the powers conferred by this Part upon the District Judge, and the provisions of this Part relating to the District Judge shall apply to such an inferior court as if it were a District Judge: Provided that an appeal from any such order of an inferior court as is mentioned in sub-section (1) of section 384 shall lie to the District Judge, and not to the High Court, and that the District Judge may, if he thinks fit, by his order on the appeal, make any such declaration and direction as that sub-section authorises the High Court to make by its order on an appeal from an order of a District Judge. 94 (3) An order of a District Judge on an appeal from an order of an inferior Court under the last foregoing sub-section shall, subject to the provisions as to reference to and revision by the High Court and as to review of judgment of the Code of Civil Procedure, 1908 (5 of 1908), as applied by section 141 of that Code, be final. (4) The District Judge may withdraw any proceedings under this Part from an inferior court, and may either himself dispose of them or transfer them to another such court established within the local limits of the jurisdiction of the District Judge and having authority to dispose of the proceedings. (5) A notification under sub-section (1) may specify any inferior court specially or any class of such courts in any local area. (6) Any Civil Court which for any of the purposes of any enactment is subordinate to, or subject to the control of, a District Judge shall, for the purposes of this section, be deemed to be a court inferior in grade to a District Judge.” 15. Section 23-A of the Karnataka Civil Courts Act, 1964 reads as follows: “23-A. Investiture of subordinate Courts with jurisdiction of District Court under the (1) The High Court may, by notification, invest any Senior Civil Judge or Civil Judge, within such local limits and subject to such pecuniary and other limitations as may be specified in such notification, with all or any of the powers of a District Judge under the Indian Succession Act, 1925 (Central Act 39 of (2) Any Senior Civil Judge or Civil Judge invested with powers under sub-section (1) shall have concurrent jurisdiction with the District Judge in the exercise of the powers conferred by the said Act upon the District Judge, and the provisions of the said Act relating to the District Judge shall apply to such Senior Civil Judge or Civil Judge, as the case may be, as if he were the District Judge: Provided that every order made by the Senior Civil Judge or the Civil Judge by virtue of the powers conferred upon him under sub-section (1) shall be subject to appeal.– (i) to the District Court, when the amount or value of the subject matter is less than twenty thousand (ii) To the High Court, in other cases. (3) Every order of the District Judge passed on appeal under the proviso to sub-section (2) shall be subject to appeal to the High Court under the rules contained in the Code of Civil Procedure, 1908, applicable to appeals from appellate decrees.” 16. Under Section 23-A of the Civil Courts Act, the investiture of power is regulated by the High Court. The reference made by the learned District Judge has stemmed out of the divergent views noted above. 17. It is relevant to record that in Circular No. R(J)5/2020 dated January 20, 2020, it has been ordered that the Notification No. GOB 460/78 dated March 12, 1979 has limited scope and invests the power in Senior Civil Judges only for issuance of Succession Certificates under Part-X of the Indian Succession Act and not for Probate. 18. Thus, the conflict in the judicial pronouncements has been resolved by the Circular 19. Hence, both questions referred are answered in the negative. 20. Incidentally, it was also argued by Smt. Laksha Kalappa that the learned District Judge be directed to proceed further to hear the arguments of the parties as evidence has been adduced and the same is on record. 21. Admittedly, the proceedings were initiated before the learned District Judge and it was submitted at the Bar that some evidence has been recorded in that Court. The evidence recorded in the proceedings before learned Senior Civil Judge is without jurisdiction. Therefore, the same cannot looked into. In view of the Circular dated January 20, 2020, fresh proceedings will have to be conducted before the learned District Judge. 22. In view of the above, the following: (a) Questions No. 1 and 2 referred by the learned District Judge are answered in the (b) Judgment and decree passed in O.S. No.33/2013 on the file of the Senior Civil Judge is set-aside and the said suit shall stand transferred to the Court of learned Principal District Judge, (c) The learned Principal District Judge or the Additional District Judge to whom the file is made over, shall commence fresh proceedings from the stage of transfer of file from the Court of District Judge to the Court of Senior Civil Judge, Madikeri and complete the same as expeditiously as
The Karnataka High Court recently made it clear that a rule they issued in 1979 has a narrow focus. This rule only gives Senior Civil Judges the power to issue Succession Certificates, which are legal documents used to claim a deceased person's debts and assets. It does *not* give them the power to issue Probate, which is a court process to prove a will is valid and handle the deceased's property. Two judges, Justice P.S. Dinesh Kumar and Justice M.G. Uma, gave this explanation. They did so after a judge from a lower court, the First Additional District Judge in Kodagu, Madikeri, asked the High Court for guidance on the issue. The lower court judge had asked the High Court to clarify two main points: First, the judge wanted to know if certain parts of a law called the Karnataka Civil Courts Act of 1964 were unconstitutional. This means checking if these parts went against the basic rules of the Indian Constitution. Second, the judge asked if the 1979 rule from the High Court gave Senior Civil Judges or other Civil Judges in Karnataka the same powers as a District Judge for issuing Probate and Letters of Administration. Letters of Administration are like Probate but for cases where there is no will. This question came up because different High Court judges had expressed conflicting opinions on the matter. The High Court answered "no" to both of these questions. The District Judge sought the High Court's help because earlier court decisions had shown different opinions on the matter. For example, in one case, the High Court upheld a Civil Judge's power to handle a Probate case that had been moved to their court. However, in a different case, the High Court told those appealing a decision to file their appeal with the District Judge instead, based on the same law and 1979 rule. A third case then followed the first decision, adding to the confusion. Petitioner arguments: The lawyer for the person appealing the decision, Advocate A.V. Gangadharappa, argued that according to the Indian Succession Act of 1925, requests for Probate must be filed with a District Judge. He said the case was correctly started with a District Judge. However, because of the 1979 rule, the case was then moved to a Senior Civil Judge, who then made a final decision on it. He further argued that the power to give legal authority to judges lower than a District Judge only applies to cases involving Succession Certificates. Because of this, the decision made by the Senior Civil Judge was legally invalid, or a "nullity." He claimed the ongoing appeal before the District Judge was invalid and asked the High Court to order the District Judge to restart the entire case from the beginning. Respondent arguments: Advocate Laksha Kalappa, representing the other side (the respondents), argued that the 1979 rule was issued under a specific section of the Civil Courts Act. He claimed that this rule gave all the powers of a District Judge to Civil Judges. Therefore, he said, the decision made by the Senior Civil Judge was legal and correct, and the appeal could properly be heard by the District Judge. Court findings The judges on the High Court bench looked at Section 23-A of the Karnataka Civil Courts Act. They stated that the High Court controls how powers are given to judges. They also noted that the District Judge asked for this clarification because of the conflicting opinions mentioned earlier. The High Court judges also pointed out that an official notice, called a Circular, was issued on January 20, 2020. This Circular clearly stated that the 1979 rule has a narrow purpose and only gives Senior Civil Judges the authority to issue Succession Certificates, not Probate. This new Circular settled the disagreements from earlier court decisions. Therefore, both questions asked by the District Judge were answered with a "no." Regarding the specific case that was before the First Additional District Judge, the High Court judges said that any evidence gathered during the case by the Senior Civil Judge was invalid because that judge did not have the proper legal authority to hear the case. Because of the Circular from January 20, 2020, the case must now be heard again by the District Judge. Therefore, the High Court ordered that the decision made by the Senior Civil Judge in that specific case is cancelled. The case will now be moved to the Principal District Judge in Madikeri, Kodagu. The Principal District Judge, or another Additional District Judge handling the case, must restart the proceedings from the point where the case was originally transferred from the District Judge to the Senior Civil Judge. They must complete the case as quickly as possible.
This case is referred to our Hon’ble High Court under Section 113 read with Order XLVI Rule 1 of the Code of Civil Procedure, 1908, to consider the following aspects: 1) To declare sub-sections (2) and (3) of Section 23- A of the Karnataka Civil Courts Act, 1964 [inserted vide Karnataka Civil Courts (Second 28/1978 with effect from 1/2/1979)], are ultra vires the Constitution of India. 2) To consider if the Notification bearing No. GOB 460/78 issued by our Hon’ble High Court, published in the Gazette on 29-03-1979, clothes the powers of a District Judge under the Indian Succession Act, 1925, upon Senior Civil Judges or Civil Judges in the State of Karnataka, in respect of issuance of Probates and Letters of Administration, in view of the divergent views expressed in the decisions of co-ordinate benches of our Hon’ble High Court.” 2. Brief facts of the case are, one Smt.Boppanda Boji Kalappa executed her Will on May 3, 1995. First respondent filed an application in P & SC No.2/1996 on the file of learned Principal District Judge, Kodagu, Madikeri under Section 276 of the Indian Succession Act, 19951, for grant of Probate. Upon being contested, probate petition was converted as O.S. No.1/1997. 3. On December 11, 2003, the suit was transferred to the Court of Civil Judge, Senior Division, Kodagu on the ground of valuation and it was re-numbered as O.S. No.3/2004. 4. On February 28, 2006, as per the order passed by the learned District Judge, the case was again transferred to the Court of District Judge, Madikeri and re-numbered as O.S. No.7/2006. ‘Indian Succession Act’ for short 5. By order dated February 2, 2013, the suit was again transferred to the Court of Senior Civil Judge, Madikeri, in view of Notification No. GOB 460/78 issued by this Court under Section 23-A of the Karnataka Civil Courts Act, 19642 and the suit was re-numbered as O.S. was decreed by the learned Senior Civil Judge, Madikeri holding that the Will was proved in favour of first respondent. Feeling aggrieved, the first defendant in the suit filed R.A. No.11/2017 in the Court of First Additional District Judge, Kodagu, 7. It was contended on behalf of the appellant before the learned District Judge that the Court of Senior Civil Judge did not have jurisdiction ‘Civil Courts Act’ for short to issue the Probate of the Will because, as per Notification No.GOB 460/78, the Civil Judges and Senior Civil Judges had jurisdiction to adjudicate upon the cases relating to issuance of Succession Certificates. Therefore, in matters relating to issuance of Probate the jurisdiction vested with the 8. It was contended on behalf of the first respondent that under Section 23-A of the Civil Courts Act, the High Court is empowered to invest all or any powers of the District Judge under the Indian Succession Act. The amendment incorporating Section 23-A in the Civil Courts Act had received the accent of the President on November 22, 1978. By the Notification No. GOB 560/1978, all Civil Judges and Senior Civil Judges were invested with the powers of the District Judge. 9. Before the learned District Judge, following authorities were cited: • B.R. Jayanthi Vs. Radhamma and others3 wherein, the challenge to the jurisdiction of Civil Judge on a transferred Probate Petition was negatived; • B.R. Jayanthi Vs. Radhamma and others4 wherein, this Court had relegated the appellants therein to file an appeal before the learned District Judge in view of Section 23-A of the Act and the Notification issued by this Ltd., and others5 wherein, the decision in ILR 2008 KAR 4612 was followed. 10. In view of the above, the learned District Judge framed following questions for his 1) Whether sub-sections (2) and (3) of Section 23-A of the Karnataka Civil Courts Act, 1964 [inserted vide Karnataka Civil Courts {Second RFA No.1324/2012 decided on 13.12.2012. W.P. No.39334/2015 decided on 23.09.2015 28/1978 with effect from 1/2/1979)], are ultra vires the Constitution of India? 2) Whether the Notification bearing No. GOB 460/78 issued by our Hon’ble High Court, published in the Gazette on 29-03-1979, clothes the powers of a District Judge under the Indian Succession Act, 1925, upon Senior Civil Judges or Civil Judges in the State of Karnataka, in respect of issuance of Probates and Letters of and answered the first question in the affirmative and held that the second question requires consideration in view of divergent views expressed by this Court. 11. Shri. A.V. Gangadharappa, learned Advocate for the appellant submitted that under Section 276 of the Indian Succession Act, 1925, an application for Probate has to be filed before the learned District Judge and it was rightly filed by the first respondent at the first instance. However, in view of the Notification dated March 12, 1979, the suit was transferred to the Court of the learned Senior Civil Judge, Madikeri and the same has been decreed. Placing reliance on Mrs. Joyce Enet Ugare Vs. James I. P. Roche6, he submitted that the power to invest jurisdiction in any inferior Courts in grade to the Court of District Judge is only in relation to proceedings for issue of Succession Certificate provided under Part-X of the Indian Succession Act. Therefore, the judgment and decree passed by the learned Senior Civil Judge is a nullity. Consequently, the appeal filed before the learned District Judge is not maintainable and this Court may direct the learned District Judge to conduct the proceedings denova. 12. In reply, Smt. Laksha Kalappa for the respondents submitted that the Notification issued in the year 1979 is under Section 23-A of the Civil Courts Act. By the said Notification, all powers of the District Judge have been conferred upon the M.F.A. No.3618/2010 decided on 19.06.2012 (para 8) Civil Judges. Therefore, the judgment and decree passed by the Senior Civil Judge is in accordance with law. Consequently, the appeal is maintainable before the learned District Judge. 13. We have carefully considered the Reference order, the submissions of learned Advocates on both sides and perused the records. 14. Section 388 of the Indian Succession Act reads as follows: “388. Investiture of inferior courts with jurisdiction of District Court for purposes of this Act.— (1) The State Government may by notification in the Official Gazette, invest any court inferior in grade to a District Judge with power to exercise the functions of a District Judge under this Part. (2) Any inferior court so invested shall, within the local limits of its jurisdiction, have concurrent jurisdiction with the District Judge in the exercise of all the powers conferred by this Part upon the District Judge, and the provisions of this Part relating to the District Judge shall apply to such an inferior court as if it were a District Judge: Provided that an appeal from any such order of an inferior court as is mentioned in sub-section (1) of section 384 shall lie to the District Judge, and not to the High Court, and that the District Judge may, if he thinks fit, by his order on the appeal, make any such declaration and direction as that sub-section authorises the High Court to make by its order on an appeal from an order of a District Judge. 94 (3) An order of a District Judge on an appeal from an order of an inferior Court under the last foregoing sub-section shall, subject to the provisions as to reference to and revision by the High Court and as to review of judgment of the Code of Civil Procedure, 1908 (5 of 1908), as applied by section 141 of that Code, be final. (4) The District Judge may withdraw any proceedings under this Part from an inferior court, and may either himself dispose of them or transfer them to another such court established within the local limits of the jurisdiction of the District Judge and having authority to dispose of the proceedings. (5) A notification under sub-section (1) may specify any inferior court specially or any class of such courts in any local area. (6) Any Civil Court which for any of the purposes of any enactment is subordinate to, or subject to the control of, a District Judge shall, for the purposes of this section, be deemed to be a court inferior in grade to a District Judge.” 15. Section 23-A of the Karnataka Civil Courts Act, 1964 reads as follows: “23-A. Investiture of subordinate Courts with jurisdiction of District Court under the (1) The High Court may, by notification, invest any Senior Civil Judge or Civil Judge, within such local limits and subject to such pecuniary and other limitations as may be specified in such notification, with all or any of the powers of a District Judge under the Indian Succession Act, 1925 (Central Act 39 of (2) Any Senior Civil Judge or Civil Judge invested with powers under sub-section (1) shall have concurrent jurisdiction with the District Judge in the exercise of the powers conferred by the said Act upon the District Judge, and the provisions of the said Act relating to the District Judge shall apply to such Senior Civil Judge or Civil Judge, as the case may be, as if he were the District Judge: Provided that every order made by the Senior Civil Judge or the Civil Judge by virtue of the powers conferred upon him under sub-section (1) shall be subject to appeal.– (i) to the District Court, when the amount or value of the subject matter is less than twenty thousand (ii) To the High Court, in other cases. (3) Every order of the District Judge passed on appeal under the proviso to sub-section (2) shall be subject to appeal to the High Court under the rules contained in the Code of Civil Procedure, 1908, applicable to appeals from appellate decrees.” 16. Under Section 23-A of the Civil Courts Act, the investiture of power is regulated by the High Court. The reference made by the learned District Judge has stemmed out of the divergent views noted above. 17. It is relevant to record that in Circular No. R(J)5/2020 dated January 20, 2020, it has been ordered that the Notification No. GOB 460/78 dated March 12, 1979 has limited scope and invests the power in Senior Civil Judges only for issuance of Succession Certificates under Part-X of the Indian Succession Act and not for Probate. 18. Thus, the conflict in the judicial pronouncements has been resolved by the Circular 19. Hence, both questions referred are answered in the negative. 20. Incidentally, it was also argued by Smt. Laksha Kalappa that the learned District Judge be directed to proceed further to hear the arguments of the parties as evidence has been adduced and the same is on record. 21. Admittedly, the proceedings were initiated before the learned District Judge and it was submitted at the Bar that some evidence has been recorded in that Court. The evidence recorded in the proceedings before learned Senior Civil Judge is without jurisdiction. Therefore, the same cannot looked into. In view of the Circular dated January 20, 2020, fresh proceedings will have to be conducted before the learned District Judge. 22. In view of the above, the following: (a) Questions No. 1 and 2 referred by the learned District Judge are answered in the (b) Judgment and decree passed in O.S. No.33/2013 on the file of the Senior Civil Judge is set-aside and the said suit shall stand transferred to the Court of learned Principal District Judge, (c) The learned Principal District Judge or the Additional District Judge to whom the file is made over, shall commence fresh proceedings from the stage of transfer of file from the Court of District Judge to the Court of Senior Civil Judge, Madikeri and complete the same as expeditiously as
The Karnataka High Court recently made it clear that a rule they issued in 1979 has a narrow focus. This rule only gives Senior Civil Judges the power to issue Succession Certificates, which are legal documents used to claim a deceased person's debts and assets. It does *not* give them the power to issue Probate, which is a court process to prove a will is valid and handle the deceased's property. Two judges, Justice P.S. Dinesh Kumar and Justice M.G. Uma, gave this explanation. They did so after a judge from a lower court, the First Additional District Judge in Kodagu, Madikeri, asked the High Court for guidance on the issue. The lower court judge had asked the High Court to clarify two main points: First, the judge wanted to know if certain parts of a law called the Karnataka Civil Courts Act of 1964 were unconstitutional. This means checking if these parts went against the basic rules of the Indian Constitution. Second, the judge asked if the 1979 rule from the High Court gave Senior Civil Judges or other Civil Judges in Karnataka the same powers as a District Judge for issuing Probate and Letters of Administration. Letters of Administration are like Probate but for cases where there is no will. This question came up because different High Court judges had expressed conflicting opinions on the matter. The High Court answered "no" to both of these questions. The District Judge sought the High Court's help because earlier court decisions had shown different opinions on the matter. For example, in one case, the High Court upheld a Civil Judge's power to handle a Probate case that had been moved to their court. However, in a different case, the High Court told those appealing a decision to file their appeal with the District Judge instead, based on the same law and 1979 rule. A third case then followed the first decision, adding to the confusion. Petitioner arguments: The lawyer for the person appealing the decision, Advocate A.V. Gangadharappa, argued that according to the Indian Succession Act of 1925, requests for Probate must be filed with a District Judge. He said the case was correctly started with a District Judge. However, because of the 1979 rule, the case was then moved to a Senior Civil Judge, who then made a final decision on it. He further argued that the power to give legal authority to judges lower than a District Judge only applies to cases involving Succession Certificates. Because of this, the decision made by the Senior Civil Judge was legally invalid, or a "nullity." He claimed the ongoing appeal before the District Judge was invalid and asked the High Court to order the District Judge to restart the entire case from the beginning. Respondent arguments: Advocate Laksha Kalappa, representing the other side (the respondents), argued that the 1979 rule was issued under a specific section of the Civil Courts Act. He claimed that this rule gave all the powers of a District Judge to Civil Judges. Therefore, he said, the decision made by the Senior Civil Judge was legal and correct, and the appeal could properly be heard by the District Judge. Court findings The judges on the High Court bench looked at Section 23-A of the Karnataka Civil Courts Act. They stated that the High Court controls how powers are given to judges. They also noted that the District Judge asked for this clarification because of the conflicting opinions mentioned earlier. The High Court judges also pointed out that an official notice, called a Circular, was issued on January 20, 2020. This Circular clearly stated that the 1979 rule has a narrow purpose and only gives Senior Civil Judges the authority to issue Succession Certificates, not Probate. This new Circular settled the disagreements from earlier court decisions. Therefore, both questions asked by the District Judge were answered with a "no." Regarding the specific case that was before the First Additional District Judge, the High Court judges said that any evidence gathered during the case by the Senior Civil Judge was invalid because that judge did not have the proper legal authority to hear the case. Because of the Circular from January 20, 2020, the case must now be heard again by the District Judge. Therefore, the High Court ordered that the decision made by the Senior Civil Judge in that specific case is cancelled. The case will now be moved to the Principal District Judge in Madikeri, Kodagu. The Principal District Judge, or another Additional District Judge handling the case, must restart the proceedings from the point where the case was originally transferred from the District Judge to the Senior Civil Judge. They must complete the case as quickly as possible.
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This Civil Revision Petition has been preferred challenging the order of learned V Additional Judge, City Civil Court, Chennai dated 15.03.2022 made in I.A.No.2 of 2021 in OS.No.5174 of 2020. 2. The 1st respondent/plaintiff filed the suit in OS.No.5174 of 2020, seeking for the relief of damages to the tune of Rs.50,00,000/- against the revision petitioner herein and other defendants along with interest. The 1st defendant is the Bar Council of Tamilnadu and Puducherry, which is a statutory authority under the Advocates Act, 3. Mr.V.K.Sethukumar, 1st respondent/plaintiff is an advocate, who was originally enrolled with the Bar Council of Kerala and later got himself transferred to the Bar Council of Tamilnadu and Puducherry in the year 1983. The 7th defendant, Mr.T.Mahesh Kumar Bhandari has filed a complaint against the plaintiff to the Bar Council of Tamilnadu by alleging some professional misconduct. In the disciplinary proceedings in D.C.C.No.37/2012 taken by the Bar Council of Tamilnadu, by its order dated 22.06.2013, the 1st respondent/ plaintiff was found guilty of professional misconduct and he was reprimanded with certain directions. The 1st respondent/plaintiff-V.K.Sethukumar filed an Appeal before the Bar Council of India in DC. Appeal No.39 of 2013 and in the said Appeal, the order of the Disciplinary Committee of the Tamil Nadu Bar Council was set-aside, by its proceedings dated 29.11.2014. Having got the above order in his favour from the Bar Council of India, V.K.Sethukumar has filed the present suit in OS.No.5174 of 2020. 4. Originally the said suit was filed before the High Court in its Original Side jurisdiction. Later, the suit was transferred to the jurisdiction of the City Civil Court, Chennai on the point of jurisdiction. During the pendency of the said suit, the 1st defendant namely the Bar Council of Tamilnadu and Puducherry has filed an application in I.A.No.2 of 2021 under Order VII Rule 11 to reject the plaint. The said application was dismissed by the impugned order. Aggrieved over that, the 1st defendant has filed this Civil Revision Petition. 5. Heard the submissions made by the learned counsel for the revision petitioner and the 1st respondent appearing in person and also perused the materials available on record. 6. Mr.C.K.Chandrasekar, learned senior counsel appearing for the petitioner submitted that the Bar Council of Tamilnadu is a Statutory Body and the Disciplinary Committee of the Bar Council of Tamil Nadu has been vested with the powers of the Civil Court, while conducting disciplinary proceedings on the complaints against the advocates for any alleged misconduct; as per Section 42 (2) of the Advocates Act, all proceedings before the Disciplinary Committee of the Bar Council shall be deemed to be judicial proceedings within the meaning of Sections 193 and 228 of the Indian Panel Code and every such Disciplinary Committee shall be deemed to be a Civil Court for the purposes of Sections 480, 482 and 485 of the Code of Criminal Procedure. 6.1. It is further submitted that such proceedings or orders passed by the Disciplinary Committee are indemnified against any legal proceedings before this Court by virtue of Section 48 of the Advocates Act; if the 1st respondent /plaintiff-V.K.Sethukumar is aggrieved due to the order of the Disciplinary Committee of the Bar Council of Tamilnadu, he is entitled to prefer an Appeal before the Bar Council of India; if the order of the Bar Council of India is also not satisfactory to either of the parties, they are entitled to challenge the same before the Supreme Court of India; the above scheme in the Advocates Act would only show how much of sanctity is given to the orders of the Disciplinary Committee; neither the Committee nor its Members can be dragged to Court for having done anything in good faith while discharging their functions under the Advocates Act; while so, it is wrong on the part of the Civil Court to take the plaint on file; such proceedings are explicitly barred under Section 48 of the Advocates Act; when an Appellate Forum is seized of the matter and passes any order, the order of the Disciplinary Committee gets merged with the order of the Appellate Forum; in view of the above merger, the Bar Council of Tamil Nadu or any of its members cannot be sued for performing their official functions. 6.2. For the obvious reasons, the proceedings before the Disciplinary Committee are deemed to be judicial proceedings; even while the order of the Disciplinary Committee of the Bar Council of Tamilnadu was set-aside by the Bar Council of India, no costs has been awarded to the plaintiff; so, that would only show the good intention of the Bar Council of Tamilnadu in taking up the Disciplinary proceedings against V.K.Sethukumar; since the Disciplinary Committee and its Members are conferred with statutory immunity, the suit filed by the plaintiff against the Bar Council of Tamilnadu is not maintainable. 6.3. Before seeking the remedy to reject the plaint by way of filing an application under Order VII Rule 11 of the Civil Procedure Code, the Bar Council of Tamilnadu has filed a Civil Revision Petition in CRP(PD)No.2125/2021 before this Court to strike off the plaint; the said civil revision petition was dismissed on 23.11.2021 with an observation that it is open to the Bar Council of Tamilnadu to file an application under Order VII Rule 11 of the Civil Procedure Code for seeking rejection of the plaint; only subsequent to that, the application in I.A.No.2 of 2021 was filed before the trial Court; but, the Trial Court, without taking into consideration of the bar under Section 48 of the Advocates Act, had chosen to dismiss the application. Since the order of the trial Court is contrary to Section 48 of the Advocates Act, which explicitly bars any Civil suit to entertain suits against the Bar Council of Tamilnadu for its actions done in good faith, the order of the learned Trial Judge should be set-aside. 6.4. In support of his above contentions, Mr.C.K.Chandrasekar has cited the following decisions: Sl. Citations submitted by the appellant’s Reported in (Gajra) Dead through legal representative Court Cases 366 3 Kunhayammed and others Vs. State of Kerala (2000)6 Supreme and another Court Cases 359 4 M/s Frost International Limited Vs. M/S Milan The judgement of Developers and Builders (P) Limited & the Supreme Court another held in Civil Appeal 7. Mr.V.K.Sethukumar – the 1st respondent/plaintiff appearing in person has submitted that the benefit of indemnity conferred under Section 48 of the Advocates Act is available to the petitioner herein only if the action is taken in good faith. The plaintiff has established several facts to prove that the Disciplinary Committee of the Bar Council of Tamil Nadu has acted in a malafide manner while conducting the disciplinary proceedings against the plaintiff and hence, the Bar Council of Tamil Nadu cannot be allowed to enjoy the immunity given under Section 48 of the Advocates Act; before the disciplinary proceedings, itself the members of the Disciplinary Committee had predetermined the and they also exhibited their biased attitude; in fact, during one of the hearings, one of the Members of the Disciplinary Committee called the 7th defendant and asked him to attend the proceedings; the above gesture shown by one of the members, even while sitting on the dais and too in front of the other party namely the petitioner herein, would only substantiate the lack of good faith on the part of the Disciplinary Committee in initiating the disciplinary action against him. 7.1. In fact, the case which stood posted for plaintiff's evidence on 22.6.2013, was suo motu advanced to 21.06.2013 without notice to the plaintiff; on 21.06.2013 the plaintiff was called absent and set exparte; on 22.06.2013, the order was passed; the manner, in which the proceedings were conducted, would show that the Members of the Disciplinary Committee were hand-in-glove with the 7th defendant; since the first respondent has not established the mala-fide intention of the 1st defendant, the learned trial Judge is right in dismissing the application. 7.2. In support of his above contention, Mr.V.K.Sethukumar has cited the following decisions: Sl. Citations submitted by the Reported in No appellant’s counsel 1 Bar Council of India, New Delhi-1 Vs. AIR 1983 ALLAHABAD Manikant Tewari and Others 357 and Parties, Vessel M.V.Fortune Express and ors. Whether the order of the learned Trial Judge in dismissing the application filed under Order VII Rule 11 is fair and proper? 9. Before adverting to merits of the case, it is essential to have a bird’s eye view about the facts: Mr.V.K.Sethukumar - 1st respondent/ plaintiff is a practising advocate; as per the contention of the 1st respondent/plaintiff, one Mr.Tarachand Bhandari - father of the 7th defendant was his old client; the said Mr.Tarachand Bhandari was a financier; the plaintiff had housed his office in the shopping complex of Tarachand Bhandari at Door No.14, Rameswaram Road, T.Nagar, Chennai 600 017; since the said Mr.Tarachand Bhandari became old, his two sons Mr.Harish Kumar Bhandari and Mr.Mahesh Kumar Bhandari took over the business; they also continued to engage the legal services of the petitioner; unlike the father, his sons were not cordial in maintaining the relationship with plaintiff; in one case where the plaintiff was engaged, one of the sons Mr.Harish Kumar Bhandari was a party. Since the plaintiff's wife met with an accident and died, the plaintiff was depressed and due to that he was not attending the Court for some time; after the plaintiff resumed office, he asked the 7th defendant to come and take back the bundles after settling his fees; instead of coming and collecting the bundles directly from the plaintiff, the 7th defendant had illegally removed the bundles from the office of the plaintiff by breaking open the door and spoiling the professional materials kept inside the office; in view of that, the plaintiff gave a police complaint against the 7th defendant; as a counter blast, the 7th defendant gave a complaint against the plaintiff to the Bar Council of Tamilnadu by making false allegations professional misconduct. 10. The above facts led to the disciplinary action taken by the Bar Council of Tamilnadu, in which the 1st plaintiff was found guilty for professional misconduct and he was reprimanded. In the Appeal filed by the 1st respondent/plaintiff, the order of the Disciplinary Committee of the Bar Council of Tamilnadu was set-aside. Only subsequent to that, the suit has been filed by the 1st respondent / plaintiff for claiming damages against defendants 1 to 7. Out of the defendants 1 to 7, 1st defendant is the Bar council of Tamilnadu and the 2nd defendant is the Chairman of the Bar Council of Tamilnadu. Defendants 3 to 6 were Members of the Bar Council of Tamilnadu and the 7 th defendant is the complainant. 11. The Advocates Act, 1961 was enacted with the objective to consolidate the law relating to legal practitioners. The advocates play an integral part in the administration of justice and as officers of the Court, they are expected to conduct themselves in a dignified manner, suit to the profession. As per the scheme of the Act, whenever a complaint is made to the State Bar Council against an advocate by alleging misconduct, the matter should be referred to the Disciplinary Committee. The proceedings before the Disciplinary Committee should be conducted by adhering the principles of natural justice and by hearing both parties, after sending notice to them. Once such allegation was made by the 7th defendant against the 1st respondent/plaintiff herein and the said complaint was taken on file by the State Bar Council for enquiry and a finding was also rendered that the 1st respondent/plaintiff has committed professional misconduct and was given with a minimum punishment of reprimanding. 12. The complaint was initiated by a private person, who is the 7th defendant in the suit. Even according to the allegations made by the 1st respondent/plaintiff, the 7th defendant had given the complaint as a counter blast to the police complaint filed by the 1st respondent/plaintiff against the 7th defendant. It was not the submission of the 1st respondent/plaintiff that the complaint was originated from any kind of involvement of defendants 1 to 7. In other words, the complaint was not given at the instigation of defendants 1 to 6. 13. As per Section 35 of the Advocates Act, the State Bar Council may, either of its own motion or on application made to it by any person interested, withdraw a proceeding pending before its Disciplinary Committee and direct the inquiry to be made by any other Disciplinary Committee of that State Bar Council. The State Bar Council is expected to take a call and take action against any advocate if a complaint is preferred against the advocate and when the State Bar Council has reasons to believe that the advocate has been found guilty of professional misconduct or other misconduct, as per Section 42 of the Advocates Act, the Disciplinary Committee of the Bar Council is conferred with certain powers of the Civil Court for the purpose of conducting the disciplinary proceedings. In fact, under sec. 42((2) of the Advocates Act, the disciplinary proceedings so conducted shall be deemed to be the judicial proceedings. And hence statutory immunity has been given under Section 48 of the Advocates Act. 14. The relevant provisions of the Advocates Act are extracted as Section 42(2) : All proceedings before a disciplinary committee of a Bar Council shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Indian Penal Code, 1860 (45 of 1860), and every such disciplinary committee shall be deemed to be a civil court for the purposes of sections 480, 482 and 485 of the Code of proceeding shall lie against any Bar Council or any committee thereof or a member of a Bar Council or any Committee thereof for any act in good faith done or intended to be done in pursuance of the provisions of this Act or of any rules made there under. 15. The contention of the 1st respondent/ plaintiff is that while conducting the proceedings, the Members of the Disciplinary Committee have conducted themselves in a biased manner. In fact, the hearing was advanced suomoto without notice to the 1st respondent/plaintiff and an adverse order was passed against him and they also exhibited biased conduct and hence the action taken by the Bar Council of Tamilnadu can not be taken as action taken in good faith. 16. Per contra, the learned counsel for the petitioner/first defendant submitted that even if an erroneous or perverse order is passed by a Bar Council of a State, that alone will not render the proceedings mala-fide. In support of his above argument, the judgement of the Supreme Court held in the case of Chandra supra) is relied upon. 17. In the judgment in the case of Chandra Prakash Mishra Vs. Flipkart India Private Limited & Ors (cited supra), it is held as “13. Having examined the matter in its totality, we are of the view that even if the High Court found that the impugned actions of the authorities concerned, particularly of the appellant, had not been strictly in conformity with law or were irregular or were illegal or even perverse, such findings, by themselves, were not leading to an inference as corollary that there had been any deliberate action or Authority or the Registering Authority; or that any ‘tactics’ were adopted, as per the expression employed by the High Court. Every erroneous, illegal or even perverse order/action, by itself, cannot be termed as wanting in good faith or suffering from malafide. 14. In the present case, when admittedly the respondent No. 1 itself had applied for registration of the change of place of business nearly 11 months after the alleged event; and at the time of drawing up the assessment orders, the appellant as the Assessing Authority had no other registered address of the respondent No. 1 on record, his actions of passing ex parte assessment orders could not have been termed as being deliberate or wanting in good faith, particularly in view of the facts that attempts were indeed made from his office to get the notices served on the respondent No. 1 at its registered address and even at its alleged changed address at Ghaziabad. Even if such attempts, of serving notices, were held to be illegal or irregular by the High Court, its deduction that the impugned actions were deliberate or lacking in good faith is difficult to be endorsed. 14.1. The appellant, while functioning as an Assessing Authority could not have kept the assessment proceedings pending for an indefinite length of time. In this context, the aforementioned facts relating to shortcomings on the part of the respondent No. 1 in first of all not seeking registration of the changed business address for nearly 11 months and then, rejection of its belatedly made prayer by the competent authority (not the appellant) cannot be ignored altogether.” 18. It is asserted by the 1st respondent/plaintiff that the actions taken by defendants 1 to 6 cannot be construed as done in good faith as the members of the disciplinary committee personally involved with one of the parties to the proceedings. In this regard he cited the decision of the Allahabad High Court held in Bar Council of India, New Delhi-1 Vs.Manikant Tewari and others (cited supra). 19. In the above case the Allahabad High Court has held as “28. Sri S.N. Verma, learned counsel for the appellant drew our attention to S. 48 of the Advocates Act and submitted that as no suit or other legal proceeding can lie against any Bar Council or any Committee thereof or a member of the Bar Council for any act, the issue No. 5 was bound to be decided in favour of the appellant S. 48 no doubt confers indemnity against legal proceedings but as indemnity is attached only to any act done in good faith, for being act to be in good faith, it is necessary that it must have been done honestly. If the act is not done honestly and a decision maker is personally involved with one of the parties, the decision may not be said to have been made exclusively on the merits. This issue for its decision, therefore, requires the evidence of the parties and it is not possible to adjudicate upon it without the same 29. In case the act complained against is not honest exercise of discretion, but on the contrary proceeded from malice or a corrupt or of improper motive, the plaintiff may seek relief in a court of law. No action lies in respect of any mere abuse of jurisdiction of a court of law. If a Judge does an act in the purported performance of his jurisdictional function and it was within its jurisdiction then any error committed in arriving at the finding will neither make him nor his judgment liable to damages. The Judge would be protected if he had been mistaken in his belief that he had power to act judicially, to such an act done in good faith attaches full immunity. So long as he does his work in the honest belief that it is within his jurisdiction, he is not liable to an action. He may be mistaken in fact he may be ignorant in 30. The above appears to be the settled position with regard to Judges. The principle behind this should also apply to the members of the Disciplinary Committee who do judicial work while dealing with a case referred to it. This principle of course applies only to a case where he acts in good faith.” 20. By citing the above judgement, it is submitted that the conduct of the members of the Disciplinary Committee during the enquiry would reveal that they had acted in a biased manner in favour of one party and they even preponed the hearing without notice to the 1st respondent/plaintiff. The 1st respondent/plaintiff has alleged bias in the minds of the members of the Disciplinary Committee because he happened to see one of the Disciplinary Committee members calling the 7th defendant on a hearing date and made the plaintiff to wait until he came. While making such an allegation, it is also stated by the 1st respondent/plaintiff that one of the staff members of the Bar Council, first made a call to the 7th defendant and thereafter, he handed over the phone to a Member. 21. The call made by one of the staff members may be to ensure the presence of the other party for the enquiry. Though it is not obligatory on the part of either staff or the member of the Bar Council of Tamilnadu to call a party or his counsel through phone and to get their assurance for attending the proceedings, under certain compelling circumstances, the counsels are called by the staff themselves just in order to presume a time-plan by having only those ready cases alone on board for the day. Had the staff or the member had any ulterior motive to make a call to the 7th defendant, the calls would not have been made publicly and it would have been made behind the back of the 1st respondent/plaintiff. Obliviously, the circumstances, in which, the call was said to have been made to the 7th defendant or his counsel is just to get confirmation and nothing else. With the above conduct on the part of the staff of the Bar Council or the member himself, one cannot arrive at a conclusion that the disciplinary action taken against the 1st respondent / plaintiff, was taken only with some mala fide intention. 22. The other allegation made by the 1st respondent/plaintiff is that despite the date of hearing was fixed originally on 22.06.2013, all of a sudden it was preponed to 21.06.2013 without notice to the 1st respondent and on which date he was set ex-parte. In its order dated 22.06.2013, the Disciplinary Committee has stated the reasons for advancement of the hearing and it is reproduced below: ” 2.......The above matter was posted for the evidence of the respondent on 22.06.2013 and it was advanced to 21.06.2013 after sending prior notice to both parties by way of Franch Express on 17.06.2013 as the period of one year for the dispose of the complaint ends with 22.06.2013. As per the Receipt No.1102470980 the said change of hearing date notice was sent to the respondent to his Chennai 600 014. But the respondent as well as his counsel were not present on the said date to give evidence on his side. The above respondent as he was absent. Again it was called at about 12.00 noon and at that time also the respondent was absent. He was set ex-parte. But the complainant was present with his counsel Mr.J.Selvaraja and he was So the above order dated 22.06.2013 will show that the advancement of hearing was done made for certain specific reasons. Since the unreasonableness of the above order for advancement of the hearing has already been raised as a ground for appeal and contested before the Bar Council of India, this Court cannot once again discuss the merits of the order for advancing the hearing from 22.06.2013 to 23. The appeal remedies are provided to parties to the disciplinary proceedings, whenever a party aggrieved is not satisfied with the order and intends to assail the order on the grounds of bias, perversity, irregularity or illegality. The 1st respondent/ plaintiff has also taken such a recourse by way of preferring an appeal before the Bar Council of India and got the order of the Bar Council of Tamilnadu set-aside. While invoking the appeal remedy to challenge the order of the Disciplinary Committee of the Bar Council of Tamilnadu, the 1st respondent/ plaintiff was always at liberty to raise grounds like bias, attitude, perversity, irregularity or illegality of the actions of Disciplinary Committee of the State Bar Council. From the order of the Bar Council of India, it is not known whether the 1st respondent/plaintiff had raised all these grounds in the appeal preferred by him. 24. Had the 1st respondent/plaintiff made those allegations before the Bar Council of Tamil Nadu and grounded his Appeal, it would have been possible for the Bar council of India to record any observation or finding on those grounds. In the order of the Bar Council of India, it is observed that the State Bar Council was in a hurry to dispose the case at the impending expiry of one year. It is observed further that the opportunity given to the 1st respondent is not sufficient. On those reasons the order of the State Bar Council was setaside. 25. The learned counsel for the revision petitioners submitted that while reversing the order of the State Bar Council, the Bar Council of India has not imposed any costs and has chosen to make the following explicit order in respect of cost. “with no order as to costs” 26. The learned counsel for the petitioner further submitted that if the decision of the Subordinate court or any other judicial or forum is modified, reversed or affirmed by the Appellate forum, the order of the lower forum merges with the order of the appellate forum. In support of his submission on the doctrine of merger, the learned counsel cited upon the decision of the Hon'ble Supreme Court in the case of Kunhayammed and others Vs. State of Kerala and another (cited supra). 27. In the judgement of Kunhayammed and others Vs. State of Kerala and another (cited supra), the Hon’ble Supreme Court has “28. Incidentally we may notice two other decisions of this Court which though not directly in point, the law laid down wherein would be of some assistance to us. In Shankar Dattatraya Bapat AIR 1970 SC 1, this Court vide para 7 has emphasized three pre conditions attracting applicability of doctrine of merger. They are : i) the jurisdiction exercised should be appellate or revisional jurisdiction; ii) the jurisdiction should have been exercised after issue of notice; and, iii) after a full hearing in presence of both the parties. Then the appellate or revisional order would replace the judgment of the lower court and constitute the only final judgment. In Sushil Kumar Sen Vs. State of Bihar AIR 1975 SC 1185 the doctrine of merger usually applicable to orders passed in exercise of appellate or revisional jurisdiction was held to be applicable also to orders passed in exercise of review jurisdiction. This Court held that the effect of allowing an application for review of a decree is to vacate a decree passed. The decree that is subsequently passed on review whether it modifies, reverses or confirms the decree originally passed, is a new decree superseding the original one. The distinction is clear. Entertaining an application for review does not vacate the decree sought to be reviewed. It is only when the application for review has been allowed that the decree under review is vacated. Thereafter the matter is heard afresh and the decree passed therein, whatever be the nature of the new decree, would be a decree superseding the earlier one. The principle or logic flowing from the above-said decisions can usefully be utilised for resolving the issue at hand. Mere pendency of an application seeking leave to appeal does not put in jeopardy the finality of the decree or order sought to be subjected to exercise of appellate jurisdiction by the Supreme Court. It is only if the application is allowed and leave to appeal granted then the finality of the decree or order under challenge is jeopardised as the pendency of appeal reopens the issues decided and this court is then scrutinising the correctness of the decision in exercise of its appellate jurisdiction. This question directly arises in the case before 34. The doctrine of merger and the right of review are concepts which are closely inter- linked. If the judgment of the High Court has come up to this Court by way of a special leave, and special leave is granted and the appeal is disposed of with or without reasons, by affirmance or otherwise, the judgment of the High Court merges with that of this Court. In that event, it is not permissible to move the High Court by review because the judgment of the High Court has merged with the judgment of this Court. But where the special leave petition is dismissed - there being no merger, the aggrieved party is not deprived of any statutory right of review, if it was available and he can pursue it. It may be that the review court may interfere, or it may not interfere depending upon the law and principles applicable to interference in the review. But the High Court, if it exercises a power of review or deals with a review application on merits - in a case where the High Courts order had not merged with an order passed by this Court after grant of special leave - the High Court could not, in law, be said to be wrong in exercising statutory jurisdiction or power vested in it.” 28. Since the Disciplinary Committee of the Bar Council of Tamil Nadu performs quasi judicial functions and the proceedings before the Disciplinary Committee are deemed to be considered as judicial proceedings, anyone affected by its orders has to challenge the same by invoking the Appeal remedies provided under the Advocates Act. And once the appellate forum reverses the order of the lower forum, the order of the appellate forum replaces the order of the lower forum by having the order of the lower forum set aside. So, even if the Subordinate Forum has acted in a biased or short sighted manner, a person aggrieved is not without any remedy. 29. In the case in hand, the first respondent who was aggrieved by the order of the State bar Council has exhausted his appeal remedy by challenging the order of the State bar council before the Bar council of India and got it reversed. Since the grounds of appeal before an appellate forum should include all the shortfalls in the order of the lower forum and the appellate order forum while considering the appeal, does the purging function and removes the dirt or deficiency in the order of the lower forum and passes an order on merit either by setting aside or confirming the order of the lower forum. Once an order is passed by an appellate forum and it is accepted by the appellant, it is deemed that the aggrieved had exhausted his appeal remedy. Unless one chooses to challenge the order of the first appellate forum also before the next rightful forum, there can not be any more grievance left out. 30. As stated already, the 1st respondent /plaintiff has rightly filed an appeal before the Bar council of India and got the order of the state bar council set aside. If he feels that his grievance is not yet redressed or just partially redressed, the next course open to him is to challenge the order of the appellate forum before the Supreme Court of India, by invoking Section 38 of the Advocates Act. 31. Apparently, the order of the Bar Council of India, which reversed the order of the Disciplinary Committee of the State Bar Council did not make any observations or rendered any finding that there was malice on the part of the defendants 1 to 6 to take up the disciplinary proceedings against the first respondent. The 1st respondent/plaintiff seems to have got satisfied with the order of the Bar Council of India. And he has not chosen to take up those unattended grievances, or those matters now pleaded in this petition, before the Supreme Court by way of filing appropriate proceedings in accordance with the scheme of the Advocates Act. At the risk of repetition it is reiterated that when the order of the lower forum merges with the order of the Appellate forum and if the appellant has chosen to accept the order of the Appellate forum, that would only mean that his grievance is properly addressed and resolved. 32. Under such circumstances, the first respondent can not once again come and say that the action taken by the State bar council against him while exercising their statutory function was lacking in good faith and hence they are not entitled to be guarded with the statutory indemnity provided under Section 48 of the Advocates Act. The Disciplinary Committee has exercised its power and initiated disciplinary action against the 1st respondent/plaintiff not suomoto, but on a complaint given by the 7th defendant. 33. The word 'good faith' means to believe something to be true. When the complaint is made before the Bar Council of Tamil Nadu with prima facie materials and if it satisfies the appropriate authority of a Forum that the allegation are believable on the face of it, the Forum has to initiate action. Any such statutory forum cannot refrain itself from initiating action and thereby abstain from doing its statutory function, even after getting satisfied on the prima-case presented before it. 34. As stated already, the 7th defendant, who is the complainant, is the son of the 1st respondent/plaintiff's long standing client. After the sons of the erstwhile client of the 1st respondent/plaintiff were inducted into their father's business, they also started interacting with the 1st respondent/plaintiff by keeping his as their counsel. So, the compliant has originated from the relationship of the 1st respondent/ plaintiff with the family of the 7th defendant in the course of his profession as an advocate. Obviously the Bar Council of Tamilnadu is totally unconnected to whatever happened between the 7th defendant and the 1st respondent/plaintiff. 35. The pattern of action before the Bar Council is similar to that of actions taken by the Courts on receiving complaints. There may be instances where an order of the court tainted with bias or prejudice. Only because there are probabilities for imperfection in the order of the lower forum, the legal system does not make the order of the lower forum as an ultimate one, but provide opportunities for appeal. The error, illegality or perversity in the orders passed by the lower forum can be corrected by the Appellate forum in the interest of justice. Once the interest of justice is served and the imperfections or the impurities in the order of the lower forum are dealt and purified, the order of the lower court disappears and looses its identity. This is especially so, when the order of the lower forum is reversed or modified. In case, the order of the lower forum is confirmed by the appellate forum, the order of the lower forum does not get vanished but stands firmer with an added strength. 36. In the case in hand, the order of the Disciplinary Committee of the Bar Council of Tamil Nadu is found to be falling short of merit due to the insufficiency of the opportunity given to the first respondent and for that reason order of the Bar council of TamilNadu was set aside. When a party gets the remedy from the Appellate forum, it would only mean that they have got what actually due to them from the lower forum itself. Or in other words, the order of the lower forum got merged with the order of the Appellate Forum and lost its identity. The 1st respondent /plaintiff has not challenged the order of the Bar Council of Tamilnadu before the Supreme Court. Since the 1st respondent/plaintiff had omitted to avail the statutory remedy by knocking at the next door in the hierarchy he is accepted the order of the bar council, he is estopped from alleging bias or lack of good faith on the part of the defendants 1 to 6. 37. Hence, the 1st respondent/plaintiff cannot have any cause of action as against defendants 1 to 6. So far as the private 7 th defendant is concerned, the cause of action as against the 7th defendant is not barred by any Act. So, it is up to the 1st respondent/plaintiff to prove malice if any against the 7th defendant for giving the complaint. 38. The application under Order VII Rule 11 of the Civil Procedure Code has been filed to reject the plaint in toto. For the reasons now discussed, if the plaint is rejected, then the 1st respondent/plaintiff will not be able to pursue the case as against the 7th defendant, for whom there is no statutory indemnity. At the best it can be held that the revision petitioners/ defendants 1 to 6 are not necessary parties to the suit, since there is no cause of action against them. As per Order I Rule 9 of the Civil Procedure Code, no suit shall be defeated by reason of misjoinder or nonjoinder of the parties. Just because defendants 1 to 6 have been included in a suit filed by the first respondent/plaintiff for claiming damages for malicious prosecution initiated by the 7th defendant against the 1st respondent / plaintiff, the suit itself cannot be struck off in entirety. However, the Court may, at any stage of the proceedings, pass orders to strike out the parties to the suit proceedings for appropriate reasons. Since defendants 1 to 6 have been improperly added in a suit where the plaintiff can have a cause of action only against the 7th defendant, the names of defendants 1 to 6 alone need to be struck out. It is learnt that defendants 5 and 6 had died. But it is not known whether the trial Court has recorded abatement against D5 and D6 or ordered for steps, if any. In order to avoid any further complications, it is appropriate to strike out the names of the deceased D5 and D6 along with D1 to D4. In view of the above stated reasons, the Civil Revision Petition is allowed and the order and decretal order of the learned V Additional Judge, City Civil Court, Chennai dated 15.03.2022 made in I.A.No.2 of 2021 in OS.No.5174 of 2020 is set aside and modified to the extent that the defendants 1 to 6 are struck out from the plaint filed by the first respondent in OS.No.5174 of 2020. No costs. Consequently connected miscellaneous petition is closed. Bar Council of Tamilnadu and Puducherry,
The Madras High Court recently highlighted a legal protection, called "statutory indemnity," that Bar Councils have. This protection applies when they take fair and honest disciplinary actions against lawyers. The court was looking at a case brought by the Bar Council of Tamil Nadu and Puducherry. They were appealing a lower court's decision. That lower court had refused their request to throw out a lawsuit filed by a lawyer. This lawyer was suing the Bar Council for money. Justice RN Manjula's group of judges made these points: A State Bar Council must investigate and act if someone complains about a lawyer. If the Bar Council believes a lawyer is guilty of misbehaving professionally or otherwise, it can take action. According to Section 42 of the Advocates Act, the Bar Council's Disciplinary Committee has powers similar to a civil court when handling these disciplinary cases. In fact, Section 42(2) of the Advocates Act says that these disciplinary proceedings are treated like court cases. Because of this, Section 48 of the Advocates Act gives them "statutory immunity," meaning legal protection. The main part of this case started when a person (the fifth respondent) complained that VK Sethukumar, a lawyer, acted unprofessionally. The Bar Council of Tamil Nadu and Puducherry looked into it, found him guilty, and gave him a warning with instructions. Mr. Sethukumar then appealed this decision to the Bar Council of India, which overturned the Tamil Nadu Bar Council's ruling. After this, Mr. Sethukumar sued the Bar Council and the original person who complained, asking for money (damages). The Bar Council asked the court to dismiss his lawsuit, but the court refused. The Bar Council argued that all cases handled by its Disciplinary Committee are considered court proceedings. They said that under Section 48 of the Advocates Act, they are protected from being sued over these legal actions or decisions. Therefore, they felt the Civil Court should not have accepted Mr. Sethukumar's lawsuit. On the other hand, Mr. Sethukumar argued that the protection of Section 48 only applies when the Bar Council acts honestly and with good intentions. He claimed that in his case, the Bar Council acted in bad faith, meaning with dishonest intentions. He pointed out that a member of the Disciplinary Committee had called the original person who complained and asked them to come to the hearing. Mr. Sethukumar felt this showed the Committee was not acting fairly when they started the disciplinary action against him. Although Mr. Sethukumar accused the committee members of being unfair, the court said that the phone call might have simply been to make sure all parties were present for the hearing. The court also pointed out that if there was a secret, bad reason for the call, it likely would not have been made openly or where Mr. Sethukumar could find out about it. Therefore, the court decided that this action by the committee member did not prove they had bad intentions. The court explained that because the Bar Council's proceedings are like court cases ("quasi-judicial"), an unhappy party can appeal the decision using the options given in the Advocates Act. An appeal should list all the problems with the first decision. So, if no further appeal is made after the first appeal, it means there are no more complaints left to address. When someone appeals, their appeal should point out all the flaws in the original decision. The appeals court then reviews these issues. It corrects any mistakes or problems in the first decision. Then it makes its own ruling, either by overturning or upholding the original decision. Once an appeals court makes a decision, and the person who appealed accepts it, it's considered that they have used up all their appeal options. If they don't challenge the first appeals court's decision in a higher court, they can't claim to have any remaining complaints about the case. When Mr. Sethukumar appealed, the appeals authority did not find that the Bar Council acted with bad intentions. Also, Mr. Sethukumar chose not to take his remaining complaints to the Supreme Court. This meant he accepted the appeals authority's decision, which implied his complaint was properly handled and settled. Therefore, he could not then claim that the State Bar Council's original action was done with bad intentions. The court explained a legal idea called "merger." This means that when an appeals court makes a decision, the original decision from the lower court becomes part of the appeals court's decision. It then no longer exists on its own. Mr. Sethukumar, the lawyer who sued (the plaintiff), did not challenge the Bar Council of Tamil Nadu's decision in the Supreme Court. Since he failed to use this legal option by appealing to the next higher court, he is considered to have accepted the Bar Council's decision. Because of this, he is legally prevented from claiming that the Bar Council members (defendants 1 to 6) acted unfairly or with bad intentions. Therefore, the court found there was no valid reason to sue the Bar Council, its chairman, and members (respondents 1 to 6). Their names were removed from the lawsuit. Regarding the seventh respondent, who was the person who originally complained, the court said there was no law preventing Mr. Sethukumar from suing him. However, Mr. Sethukumar would have to prove that this person acted with bad intentions.
This Civil Revision Petition has been preferred challenging the order of learned V Additional Judge, City Civil Court, Chennai dated 15.03.2022 made in I.A.No.2 of 2021 in OS.No.5174 of 2020. 2. The 1st respondent/plaintiff filed the suit in OS.No.5174 of 2020, seeking for the relief of damages to the tune of Rs.50,00,000/- against the revision petitioner herein and other defendants along with interest. The 1st defendant is the Bar Council of Tamilnadu and Puducherry, which is a statutory authority under the Advocates Act, 3. Mr.V.K.Sethukumar, 1st respondent/plaintiff is an advocate, who was originally enrolled with the Bar Council of Kerala and later got himself transferred to the Bar Council of Tamilnadu and Puducherry in the year 1983. The 7th defendant, Mr.T.Mahesh Kumar Bhandari has filed a complaint against the plaintiff to the Bar Council of Tamilnadu by alleging some professional misconduct. In the disciplinary proceedings in D.C.C.No.37/2012 taken by the Bar Council of Tamilnadu, by its order dated 22.06.2013, the 1st respondent/ plaintiff was found guilty of professional misconduct and he was reprimanded with certain directions. The 1st respondent/plaintiff-V.K.Sethukumar filed an Appeal before the Bar Council of India in DC. Appeal No.39 of 2013 and in the said Appeal, the order of the Disciplinary Committee of the Tamil Nadu Bar Council was set-aside, by its proceedings dated 29.11.2014. Having got the above order in his favour from the Bar Council of India, V.K.Sethukumar has filed the present suit in OS.No.5174 of 2020. 4. Originally the said suit was filed before the High Court in its Original Side jurisdiction. Later, the suit was transferred to the jurisdiction of the City Civil Court, Chennai on the point of jurisdiction. During the pendency of the said suit, the 1st defendant namely the Bar Council of Tamilnadu and Puducherry has filed an application in I.A.No.2 of 2021 under Order VII Rule 11 to reject the plaint. The said application was dismissed by the impugned order. Aggrieved over that, the 1st defendant has filed this Civil Revision Petition. 5. Heard the submissions made by the learned counsel for the revision petitioner and the 1st respondent appearing in person and also perused the materials available on record. 6. Mr.C.K.Chandrasekar, learned senior counsel appearing for the petitioner submitted that the Bar Council of Tamilnadu is a Statutory Body and the Disciplinary Committee of the Bar Council of Tamil Nadu has been vested with the powers of the Civil Court, while conducting disciplinary proceedings on the complaints against the advocates for any alleged misconduct; as per Section 42 (2) of the Advocates Act, all proceedings before the Disciplinary Committee of the Bar Council shall be deemed to be judicial proceedings within the meaning of Sections 193 and 228 of the Indian Panel Code and every such Disciplinary Committee shall be deemed to be a Civil Court for the purposes of Sections 480, 482 and 485 of the Code of Criminal Procedure. 6.1. It is further submitted that such proceedings or orders passed by the Disciplinary Committee are indemnified against any legal proceedings before this Court by virtue of Section 48 of the Advocates Act; if the 1st respondent /plaintiff-V.K.Sethukumar is aggrieved due to the order of the Disciplinary Committee of the Bar Council of Tamilnadu, he is entitled to prefer an Appeal before the Bar Council of India; if the order of the Bar Council of India is also not satisfactory to either of the parties, they are entitled to challenge the same before the Supreme Court of India; the above scheme in the Advocates Act would only show how much of sanctity is given to the orders of the Disciplinary Committee; neither the Committee nor its Members can be dragged to Court for having done anything in good faith while discharging their functions under the Advocates Act; while so, it is wrong on the part of the Civil Court to take the plaint on file; such proceedings are explicitly barred under Section 48 of the Advocates Act; when an Appellate Forum is seized of the matter and passes any order, the order of the Disciplinary Committee gets merged with the order of the Appellate Forum; in view of the above merger, the Bar Council of Tamil Nadu or any of its members cannot be sued for performing their official functions. 6.2. For the obvious reasons, the proceedings before the Disciplinary Committee are deemed to be judicial proceedings; even while the order of the Disciplinary Committee of the Bar Council of Tamilnadu was set-aside by the Bar Council of India, no costs has been awarded to the plaintiff; so, that would only show the good intention of the Bar Council of Tamilnadu in taking up the Disciplinary proceedings against V.K.Sethukumar; since the Disciplinary Committee and its Members are conferred with statutory immunity, the suit filed by the plaintiff against the Bar Council of Tamilnadu is not maintainable. 6.3. Before seeking the remedy to reject the plaint by way of filing an application under Order VII Rule 11 of the Civil Procedure Code, the Bar Council of Tamilnadu has filed a Civil Revision Petition in CRP(PD)No.2125/2021 before this Court to strike off the plaint; the said civil revision petition was dismissed on 23.11.2021 with an observation that it is open to the Bar Council of Tamilnadu to file an application under Order VII Rule 11 of the Civil Procedure Code for seeking rejection of the plaint; only subsequent to that, the application in I.A.No.2 of 2021 was filed before the trial Court; but, the Trial Court, without taking into consideration of the bar under Section 48 of the Advocates Act, had chosen to dismiss the application. Since the order of the trial Court is contrary to Section 48 of the Advocates Act, which explicitly bars any Civil suit to entertain suits against the Bar Council of Tamilnadu for its actions done in good faith, the order of the learned Trial Judge should be set-aside. 6.4. In support of his above contentions, Mr.C.K.Chandrasekar has cited the following decisions: Sl. Citations submitted by the appellant’s Reported in (Gajra) Dead through legal representative Court Cases 366 3 Kunhayammed and others Vs. State of Kerala (2000)6 Supreme and another Court Cases 359 4 M/s Frost International Limited Vs. M/S Milan The judgement of Developers and Builders (P) Limited & the Supreme Court another held in Civil Appeal 7. Mr.V.K.Sethukumar – the 1st respondent/plaintiff appearing in person has submitted that the benefit of indemnity conferred under Section 48 of the Advocates Act is available to the petitioner herein only if the action is taken in good faith. The plaintiff has established several facts to prove that the Disciplinary Committee of the Bar Council of Tamil Nadu has acted in a malafide manner while conducting the disciplinary proceedings against the plaintiff and hence, the Bar Council of Tamil Nadu cannot be allowed to enjoy the immunity given under Section 48 of the Advocates Act; before the disciplinary proceedings, itself the members of the Disciplinary Committee had predetermined the and they also exhibited their biased attitude; in fact, during one of the hearings, one of the Members of the Disciplinary Committee called the 7th defendant and asked him to attend the proceedings; the above gesture shown by one of the members, even while sitting on the dais and too in front of the other party namely the petitioner herein, would only substantiate the lack of good faith on the part of the Disciplinary Committee in initiating the disciplinary action against him. 7.1. In fact, the case which stood posted for plaintiff's evidence on 22.6.2013, was suo motu advanced to 21.06.2013 without notice to the plaintiff; on 21.06.2013 the plaintiff was called absent and set exparte; on 22.06.2013, the order was passed; the manner, in which the proceedings were conducted, would show that the Members of the Disciplinary Committee were hand-in-glove with the 7th defendant; since the first respondent has not established the mala-fide intention of the 1st defendant, the learned trial Judge is right in dismissing the application. 7.2. In support of his above contention, Mr.V.K.Sethukumar has cited the following decisions: Sl. Citations submitted by the Reported in No appellant’s counsel 1 Bar Council of India, New Delhi-1 Vs. AIR 1983 ALLAHABAD Manikant Tewari and Others 357 and Parties, Vessel M.V.Fortune Express and ors. Whether the order of the learned Trial Judge in dismissing the application filed under Order VII Rule 11 is fair and proper? 9. Before adverting to merits of the case, it is essential to have a bird’s eye view about the facts: Mr.V.K.Sethukumar - 1st respondent/ plaintiff is a practising advocate; as per the contention of the 1st respondent/plaintiff, one Mr.Tarachand Bhandari - father of the 7th defendant was his old client; the said Mr.Tarachand Bhandari was a financier; the plaintiff had housed his office in the shopping complex of Tarachand Bhandari at Door No.14, Rameswaram Road, T.Nagar, Chennai 600 017; since the said Mr.Tarachand Bhandari became old, his two sons Mr.Harish Kumar Bhandari and Mr.Mahesh Kumar Bhandari took over the business; they also continued to engage the legal services of the petitioner; unlike the father, his sons were not cordial in maintaining the relationship with plaintiff; in one case where the plaintiff was engaged, one of the sons Mr.Harish Kumar Bhandari was a party. Since the plaintiff's wife met with an accident and died, the plaintiff was depressed and due to that he was not attending the Court for some time; after the plaintiff resumed office, he asked the 7th defendant to come and take back the bundles after settling his fees; instead of coming and collecting the bundles directly from the plaintiff, the 7th defendant had illegally removed the bundles from the office of the plaintiff by breaking open the door and spoiling the professional materials kept inside the office; in view of that, the plaintiff gave a police complaint against the 7th defendant; as a counter blast, the 7th defendant gave a complaint against the plaintiff to the Bar Council of Tamilnadu by making false allegations professional misconduct. 10. The above facts led to the disciplinary action taken by the Bar Council of Tamilnadu, in which the 1st plaintiff was found guilty for professional misconduct and he was reprimanded. In the Appeal filed by the 1st respondent/plaintiff, the order of the Disciplinary Committee of the Bar Council of Tamilnadu was set-aside. Only subsequent to that, the suit has been filed by the 1st respondent / plaintiff for claiming damages against defendants 1 to 7. Out of the defendants 1 to 7, 1st defendant is the Bar council of Tamilnadu and the 2nd defendant is the Chairman of the Bar Council of Tamilnadu. Defendants 3 to 6 were Members of the Bar Council of Tamilnadu and the 7 th defendant is the complainant. 11. The Advocates Act, 1961 was enacted with the objective to consolidate the law relating to legal practitioners. The advocates play an integral part in the administration of justice and as officers of the Court, they are expected to conduct themselves in a dignified manner, suit to the profession. As per the scheme of the Act, whenever a complaint is made to the State Bar Council against an advocate by alleging misconduct, the matter should be referred to the Disciplinary Committee. The proceedings before the Disciplinary Committee should be conducted by adhering the principles of natural justice and by hearing both parties, after sending notice to them. Once such allegation was made by the 7th defendant against the 1st respondent/plaintiff herein and the said complaint was taken on file by the State Bar Council for enquiry and a finding was also rendered that the 1st respondent/plaintiff has committed professional misconduct and was given with a minimum punishment of reprimanding. 12. The complaint was initiated by a private person, who is the 7th defendant in the suit. Even according to the allegations made by the 1st respondent/plaintiff, the 7th defendant had given the complaint as a counter blast to the police complaint filed by the 1st respondent/plaintiff against the 7th defendant. It was not the submission of the 1st respondent/plaintiff that the complaint was originated from any kind of involvement of defendants 1 to 7. In other words, the complaint was not given at the instigation of defendants 1 to 6. 13. As per Section 35 of the Advocates Act, the State Bar Council may, either of its own motion or on application made to it by any person interested, withdraw a proceeding pending before its Disciplinary Committee and direct the inquiry to be made by any other Disciplinary Committee of that State Bar Council. The State Bar Council is expected to take a call and take action against any advocate if a complaint is preferred against the advocate and when the State Bar Council has reasons to believe that the advocate has been found guilty of professional misconduct or other misconduct, as per Section 42 of the Advocates Act, the Disciplinary Committee of the Bar Council is conferred with certain powers of the Civil Court for the purpose of conducting the disciplinary proceedings. In fact, under sec. 42((2) of the Advocates Act, the disciplinary proceedings so conducted shall be deemed to be the judicial proceedings. And hence statutory immunity has been given under Section 48 of the Advocates Act. 14. The relevant provisions of the Advocates Act are extracted as Section 42(2) : All proceedings before a disciplinary committee of a Bar Council shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Indian Penal Code, 1860 (45 of 1860), and every such disciplinary committee shall be deemed to be a civil court for the purposes of sections 480, 482 and 485 of the Code of proceeding shall lie against any Bar Council or any committee thereof or a member of a Bar Council or any Committee thereof for any act in good faith done or intended to be done in pursuance of the provisions of this Act or of any rules made there under. 15. The contention of the 1st respondent/ plaintiff is that while conducting the proceedings, the Members of the Disciplinary Committee have conducted themselves in a biased manner. In fact, the hearing was advanced suomoto without notice to the 1st respondent/plaintiff and an adverse order was passed against him and they also exhibited biased conduct and hence the action taken by the Bar Council of Tamilnadu can not be taken as action taken in good faith. 16. Per contra, the learned counsel for the petitioner/first defendant submitted that even if an erroneous or perverse order is passed by a Bar Council of a State, that alone will not render the proceedings mala-fide. In support of his above argument, the judgement of the Supreme Court held in the case of Chandra supra) is relied upon. 17. In the judgment in the case of Chandra Prakash Mishra Vs. Flipkart India Private Limited & Ors (cited supra), it is held as “13. Having examined the matter in its totality, we are of the view that even if the High Court found that the impugned actions of the authorities concerned, particularly of the appellant, had not been strictly in conformity with law or were irregular or were illegal or even perverse, such findings, by themselves, were not leading to an inference as corollary that there had been any deliberate action or Authority or the Registering Authority; or that any ‘tactics’ were adopted, as per the expression employed by the High Court. Every erroneous, illegal or even perverse order/action, by itself, cannot be termed as wanting in good faith or suffering from malafide. 14. In the present case, when admittedly the respondent No. 1 itself had applied for registration of the change of place of business nearly 11 months after the alleged event; and at the time of drawing up the assessment orders, the appellant as the Assessing Authority had no other registered address of the respondent No. 1 on record, his actions of passing ex parte assessment orders could not have been termed as being deliberate or wanting in good faith, particularly in view of the facts that attempts were indeed made from his office to get the notices served on the respondent No. 1 at its registered address and even at its alleged changed address at Ghaziabad. Even if such attempts, of serving notices, were held to be illegal or irregular by the High Court, its deduction that the impugned actions were deliberate or lacking in good faith is difficult to be endorsed. 14.1. The appellant, while functioning as an Assessing Authority could not have kept the assessment proceedings pending for an indefinite length of time. In this context, the aforementioned facts relating to shortcomings on the part of the respondent No. 1 in first of all not seeking registration of the changed business address for nearly 11 months and then, rejection of its belatedly made prayer by the competent authority (not the appellant) cannot be ignored altogether.” 18. It is asserted by the 1st respondent/plaintiff that the actions taken by defendants 1 to 6 cannot be construed as done in good faith as the members of the disciplinary committee personally involved with one of the parties to the proceedings. In this regard he cited the decision of the Allahabad High Court held in Bar Council of India, New Delhi-1 Vs.Manikant Tewari and others (cited supra). 19. In the above case the Allahabad High Court has held as “28. Sri S.N. Verma, learned counsel for the appellant drew our attention to S. 48 of the Advocates Act and submitted that as no suit or other legal proceeding can lie against any Bar Council or any Committee thereof or a member of the Bar Council for any act, the issue No. 5 was bound to be decided in favour of the appellant S. 48 no doubt confers indemnity against legal proceedings but as indemnity is attached only to any act done in good faith, for being act to be in good faith, it is necessary that it must have been done honestly. If the act is not done honestly and a decision maker is personally involved with one of the parties, the decision may not be said to have been made exclusively on the merits. This issue for its decision, therefore, requires the evidence of the parties and it is not possible to adjudicate upon it without the same 29. In case the act complained against is not honest exercise of discretion, but on the contrary proceeded from malice or a corrupt or of improper motive, the plaintiff may seek relief in a court of law. No action lies in respect of any mere abuse of jurisdiction of a court of law. If a Judge does an act in the purported performance of his jurisdictional function and it was within its jurisdiction then any error committed in arriving at the finding will neither make him nor his judgment liable to damages. The Judge would be protected if he had been mistaken in his belief that he had power to act judicially, to such an act done in good faith attaches full immunity. So long as he does his work in the honest belief that it is within his jurisdiction, he is not liable to an action. He may be mistaken in fact he may be ignorant in 30. The above appears to be the settled position with regard to Judges. The principle behind this should also apply to the members of the Disciplinary Committee who do judicial work while dealing with a case referred to it. This principle of course applies only to a case where he acts in good faith.” 20. By citing the above judgement, it is submitted that the conduct of the members of the Disciplinary Committee during the enquiry would reveal that they had acted in a biased manner in favour of one party and they even preponed the hearing without notice to the 1st respondent/plaintiff. The 1st respondent/plaintiff has alleged bias in the minds of the members of the Disciplinary Committee because he happened to see one of the Disciplinary Committee members calling the 7th defendant on a hearing date and made the plaintiff to wait until he came. While making such an allegation, it is also stated by the 1st respondent/plaintiff that one of the staff members of the Bar Council, first made a call to the 7th defendant and thereafter, he handed over the phone to a Member. 21. The call made by one of the staff members may be to ensure the presence of the other party for the enquiry. Though it is not obligatory on the part of either staff or the member of the Bar Council of Tamilnadu to call a party or his counsel through phone and to get their assurance for attending the proceedings, under certain compelling circumstances, the counsels are called by the staff themselves just in order to presume a time-plan by having only those ready cases alone on board for the day. Had the staff or the member had any ulterior motive to make a call to the 7th defendant, the calls would not have been made publicly and it would have been made behind the back of the 1st respondent/plaintiff. Obliviously, the circumstances, in which, the call was said to have been made to the 7th defendant or his counsel is just to get confirmation and nothing else. With the above conduct on the part of the staff of the Bar Council or the member himself, one cannot arrive at a conclusion that the disciplinary action taken against the 1st respondent / plaintiff, was taken only with some mala fide intention. 22. The other allegation made by the 1st respondent/plaintiff is that despite the date of hearing was fixed originally on 22.06.2013, all of a sudden it was preponed to 21.06.2013 without notice to the 1st respondent and on which date he was set ex-parte. In its order dated 22.06.2013, the Disciplinary Committee has stated the reasons for advancement of the hearing and it is reproduced below: ” 2.......The above matter was posted for the evidence of the respondent on 22.06.2013 and it was advanced to 21.06.2013 after sending prior notice to both parties by way of Franch Express on 17.06.2013 as the period of one year for the dispose of the complaint ends with 22.06.2013. As per the Receipt No.1102470980 the said change of hearing date notice was sent to the respondent to his Chennai 600 014. But the respondent as well as his counsel were not present on the said date to give evidence on his side. The above respondent as he was absent. Again it was called at about 12.00 noon and at that time also the respondent was absent. He was set ex-parte. But the complainant was present with his counsel Mr.J.Selvaraja and he was So the above order dated 22.06.2013 will show that the advancement of hearing was done made for certain specific reasons. Since the unreasonableness of the above order for advancement of the hearing has already been raised as a ground for appeal and contested before the Bar Council of India, this Court cannot once again discuss the merits of the order for advancing the hearing from 22.06.2013 to 23. The appeal remedies are provided to parties to the disciplinary proceedings, whenever a party aggrieved is not satisfied with the order and intends to assail the order on the grounds of bias, perversity, irregularity or illegality. The 1st respondent/ plaintiff has also taken such a recourse by way of preferring an appeal before the Bar Council of India and got the order of the Bar Council of Tamilnadu set-aside. While invoking the appeal remedy to challenge the order of the Disciplinary Committee of the Bar Council of Tamilnadu, the 1st respondent/ plaintiff was always at liberty to raise grounds like bias, attitude, perversity, irregularity or illegality of the actions of Disciplinary Committee of the State Bar Council. From the order of the Bar Council of India, it is not known whether the 1st respondent/plaintiff had raised all these grounds in the appeal preferred by him. 24. Had the 1st respondent/plaintiff made those allegations before the Bar Council of Tamil Nadu and grounded his Appeal, it would have been possible for the Bar council of India to record any observation or finding on those grounds. In the order of the Bar Council of India, it is observed that the State Bar Council was in a hurry to dispose the case at the impending expiry of one year. It is observed further that the opportunity given to the 1st respondent is not sufficient. On those reasons the order of the State Bar Council was setaside. 25. The learned counsel for the revision petitioners submitted that while reversing the order of the State Bar Council, the Bar Council of India has not imposed any costs and has chosen to make the following explicit order in respect of cost. “with no order as to costs” 26. The learned counsel for the petitioner further submitted that if the decision of the Subordinate court or any other judicial or forum is modified, reversed or affirmed by the Appellate forum, the order of the lower forum merges with the order of the appellate forum. In support of his submission on the doctrine of merger, the learned counsel cited upon the decision of the Hon'ble Supreme Court in the case of Kunhayammed and others Vs. State of Kerala and another (cited supra). 27. In the judgement of Kunhayammed and others Vs. State of Kerala and another (cited supra), the Hon’ble Supreme Court has “28. Incidentally we may notice two other decisions of this Court which though not directly in point, the law laid down wherein would be of some assistance to us. In Shankar Dattatraya Bapat AIR 1970 SC 1, this Court vide para 7 has emphasized three pre conditions attracting applicability of doctrine of merger. They are : i) the jurisdiction exercised should be appellate or revisional jurisdiction; ii) the jurisdiction should have been exercised after issue of notice; and, iii) after a full hearing in presence of both the parties. Then the appellate or revisional order would replace the judgment of the lower court and constitute the only final judgment. In Sushil Kumar Sen Vs. State of Bihar AIR 1975 SC 1185 the doctrine of merger usually applicable to orders passed in exercise of appellate or revisional jurisdiction was held to be applicable also to orders passed in exercise of review jurisdiction. This Court held that the effect of allowing an application for review of a decree is to vacate a decree passed. The decree that is subsequently passed on review whether it modifies, reverses or confirms the decree originally passed, is a new decree superseding the original one. The distinction is clear. Entertaining an application for review does not vacate the decree sought to be reviewed. It is only when the application for review has been allowed that the decree under review is vacated. Thereafter the matter is heard afresh and the decree passed therein, whatever be the nature of the new decree, would be a decree superseding the earlier one. The principle or logic flowing from the above-said decisions can usefully be utilised for resolving the issue at hand. Mere pendency of an application seeking leave to appeal does not put in jeopardy the finality of the decree or order sought to be subjected to exercise of appellate jurisdiction by the Supreme Court. It is only if the application is allowed and leave to appeal granted then the finality of the decree or order under challenge is jeopardised as the pendency of appeal reopens the issues decided and this court is then scrutinising the correctness of the decision in exercise of its appellate jurisdiction. This question directly arises in the case before 34. The doctrine of merger and the right of review are concepts which are closely inter- linked. If the judgment of the High Court has come up to this Court by way of a special leave, and special leave is granted and the appeal is disposed of with or without reasons, by affirmance or otherwise, the judgment of the High Court merges with that of this Court. In that event, it is not permissible to move the High Court by review because the judgment of the High Court has merged with the judgment of this Court. But where the special leave petition is dismissed - there being no merger, the aggrieved party is not deprived of any statutory right of review, if it was available and he can pursue it. It may be that the review court may interfere, or it may not interfere depending upon the law and principles applicable to interference in the review. But the High Court, if it exercises a power of review or deals with a review application on merits - in a case where the High Courts order had not merged with an order passed by this Court after grant of special leave - the High Court could not, in law, be said to be wrong in exercising statutory jurisdiction or power vested in it.” 28. Since the Disciplinary Committee of the Bar Council of Tamil Nadu performs quasi judicial functions and the proceedings before the Disciplinary Committee are deemed to be considered as judicial proceedings, anyone affected by its orders has to challenge the same by invoking the Appeal remedies provided under the Advocates Act. And once the appellate forum reverses the order of the lower forum, the order of the appellate forum replaces the order of the lower forum by having the order of the lower forum set aside. So, even if the Subordinate Forum has acted in a biased or short sighted manner, a person aggrieved is not without any remedy. 29. In the case in hand, the first respondent who was aggrieved by the order of the State bar Council has exhausted his appeal remedy by challenging the order of the State bar council before the Bar council of India and got it reversed. Since the grounds of appeal before an appellate forum should include all the shortfalls in the order of the lower forum and the appellate order forum while considering the appeal, does the purging function and removes the dirt or deficiency in the order of the lower forum and passes an order on merit either by setting aside or confirming the order of the lower forum. Once an order is passed by an appellate forum and it is accepted by the appellant, it is deemed that the aggrieved had exhausted his appeal remedy. Unless one chooses to challenge the order of the first appellate forum also before the next rightful forum, there can not be any more grievance left out. 30. As stated already, the 1st respondent /plaintiff has rightly filed an appeal before the Bar council of India and got the order of the state bar council set aside. If he feels that his grievance is not yet redressed or just partially redressed, the next course open to him is to challenge the order of the appellate forum before the Supreme Court of India, by invoking Section 38 of the Advocates Act. 31. Apparently, the order of the Bar Council of India, which reversed the order of the Disciplinary Committee of the State Bar Council did not make any observations or rendered any finding that there was malice on the part of the defendants 1 to 6 to take up the disciplinary proceedings against the first respondent. The 1st respondent/plaintiff seems to have got satisfied with the order of the Bar Council of India. And he has not chosen to take up those unattended grievances, or those matters now pleaded in this petition, before the Supreme Court by way of filing appropriate proceedings in accordance with the scheme of the Advocates Act. At the risk of repetition it is reiterated that when the order of the lower forum merges with the order of the Appellate forum and if the appellant has chosen to accept the order of the Appellate forum, that would only mean that his grievance is properly addressed and resolved. 32. Under such circumstances, the first respondent can not once again come and say that the action taken by the State bar council against him while exercising their statutory function was lacking in good faith and hence they are not entitled to be guarded with the statutory indemnity provided under Section 48 of the Advocates Act. The Disciplinary Committee has exercised its power and initiated disciplinary action against the 1st respondent/plaintiff not suomoto, but on a complaint given by the 7th defendant. 33. The word 'good faith' means to believe something to be true. When the complaint is made before the Bar Council of Tamil Nadu with prima facie materials and if it satisfies the appropriate authority of a Forum that the allegation are believable on the face of it, the Forum has to initiate action. Any such statutory forum cannot refrain itself from initiating action and thereby abstain from doing its statutory function, even after getting satisfied on the prima-case presented before it. 34. As stated already, the 7th defendant, who is the complainant, is the son of the 1st respondent/plaintiff's long standing client. After the sons of the erstwhile client of the 1st respondent/plaintiff were inducted into their father's business, they also started interacting with the 1st respondent/plaintiff by keeping his as their counsel. So, the compliant has originated from the relationship of the 1st respondent/ plaintiff with the family of the 7th defendant in the course of his profession as an advocate. Obviously the Bar Council of Tamilnadu is totally unconnected to whatever happened between the 7th defendant and the 1st respondent/plaintiff. 35. The pattern of action before the Bar Council is similar to that of actions taken by the Courts on receiving complaints. There may be instances where an order of the court tainted with bias or prejudice. Only because there are probabilities for imperfection in the order of the lower forum, the legal system does not make the order of the lower forum as an ultimate one, but provide opportunities for appeal. The error, illegality or perversity in the orders passed by the lower forum can be corrected by the Appellate forum in the interest of justice. Once the interest of justice is served and the imperfections or the impurities in the order of the lower forum are dealt and purified, the order of the lower court disappears and looses its identity. This is especially so, when the order of the lower forum is reversed or modified. In case, the order of the lower forum is confirmed by the appellate forum, the order of the lower forum does not get vanished but stands firmer with an added strength. 36. In the case in hand, the order of the Disciplinary Committee of the Bar Council of Tamil Nadu is found to be falling short of merit due to the insufficiency of the opportunity given to the first respondent and for that reason order of the Bar council of TamilNadu was set aside. When a party gets the remedy from the Appellate forum, it would only mean that they have got what actually due to them from the lower forum itself. Or in other words, the order of the lower forum got merged with the order of the Appellate Forum and lost its identity. The 1st respondent /plaintiff has not challenged the order of the Bar Council of Tamilnadu before the Supreme Court. Since the 1st respondent/plaintiff had omitted to avail the statutory remedy by knocking at the next door in the hierarchy he is accepted the order of the bar council, he is estopped from alleging bias or lack of good faith on the part of the defendants 1 to 6. 37. Hence, the 1st respondent/plaintiff cannot have any cause of action as against defendants 1 to 6. So far as the private 7 th defendant is concerned, the cause of action as against the 7th defendant is not barred by any Act. So, it is up to the 1st respondent/plaintiff to prove malice if any against the 7th defendant for giving the complaint. 38. The application under Order VII Rule 11 of the Civil Procedure Code has been filed to reject the plaint in toto. For the reasons now discussed, if the plaint is rejected, then the 1st respondent/plaintiff will not be able to pursue the case as against the 7th defendant, for whom there is no statutory indemnity. At the best it can be held that the revision petitioners/ defendants 1 to 6 are not necessary parties to the suit, since there is no cause of action against them. As per Order I Rule 9 of the Civil Procedure Code, no suit shall be defeated by reason of misjoinder or nonjoinder of the parties. Just because defendants 1 to 6 have been included in a suit filed by the first respondent/plaintiff for claiming damages for malicious prosecution initiated by the 7th defendant against the 1st respondent / plaintiff, the suit itself cannot be struck off in entirety. However, the Court may, at any stage of the proceedings, pass orders to strike out the parties to the suit proceedings for appropriate reasons. Since defendants 1 to 6 have been improperly added in a suit where the plaintiff can have a cause of action only against the 7th defendant, the names of defendants 1 to 6 alone need to be struck out. It is learnt that defendants 5 and 6 had died. But it is not known whether the trial Court has recorded abatement against D5 and D6 or ordered for steps, if any. In order to avoid any further complications, it is appropriate to strike out the names of the deceased D5 and D6 along with D1 to D4. In view of the above stated reasons, the Civil Revision Petition is allowed and the order and decretal order of the learned V Additional Judge, City Civil Court, Chennai dated 15.03.2022 made in I.A.No.2 of 2021 in OS.No.5174 of 2020 is set aside and modified to the extent that the defendants 1 to 6 are struck out from the plaint filed by the first respondent in OS.No.5174 of 2020. No costs. Consequently connected miscellaneous petition is closed. Bar Council of Tamilnadu and Puducherry,
The Madras High Court recently highlighted a legal protection, called "statutory indemnity," that Bar Councils have. This protection applies when they take fair and honest disciplinary actions against lawyers. The court was looking at a case brought by the Bar Council of Tamil Nadu and Puducherry. They were appealing a lower court's decision. That lower court had refused their request to throw out a lawsuit filed by a lawyer. This lawyer was suing the Bar Council for money. Justice RN Manjula's group of judges made these points: A State Bar Council must investigate and act if someone complains about a lawyer. If the Bar Council believes a lawyer is guilty of misbehaving professionally or otherwise, it can take action. According to Section 42 of the Advocates Act, the Bar Council's Disciplinary Committee has powers similar to a civil court when handling these disciplinary cases. In fact, Section 42(2) of the Advocates Act says that these disciplinary proceedings are treated like court cases. Because of this, Section 48 of the Advocates Act gives them "statutory immunity," meaning legal protection. The main part of this case started when a person (the fifth respondent) complained that VK Sethukumar, a lawyer, acted unprofessionally. The Bar Council of Tamil Nadu and Puducherry looked into it, found him guilty, and gave him a warning with instructions. Mr. Sethukumar then appealed this decision to the Bar Council of India, which overturned the Tamil Nadu Bar Council's ruling. After this, Mr. Sethukumar sued the Bar Council and the original person who complained, asking for money (damages). The Bar Council asked the court to dismiss his lawsuit, but the court refused. The Bar Council argued that all cases handled by its Disciplinary Committee are considered court proceedings. They said that under Section 48 of the Advocates Act, they are protected from being sued over these legal actions or decisions. Therefore, they felt the Civil Court should not have accepted Mr. Sethukumar's lawsuit. On the other hand, Mr. Sethukumar argued that the protection of Section 48 only applies when the Bar Council acts honestly and with good intentions. He claimed that in his case, the Bar Council acted in bad faith, meaning with dishonest intentions. He pointed out that a member of the Disciplinary Committee had called the original person who complained and asked them to come to the hearing. Mr. Sethukumar felt this showed the Committee was not acting fairly when they started the disciplinary action against him. Although Mr. Sethukumar accused the committee members of being unfair, the court said that the phone call might have simply been to make sure all parties were present for the hearing. The court also pointed out that if there was a secret, bad reason for the call, it likely would not have been made openly or where Mr. Sethukumar could find out about it. Therefore, the court decided that this action by the committee member did not prove they had bad intentions. The court explained that because the Bar Council's proceedings are like court cases ("quasi-judicial"), an unhappy party can appeal the decision using the options given in the Advocates Act. An appeal should list all the problems with the first decision. So, if no further appeal is made after the first appeal, it means there are no more complaints left to address. When someone appeals, their appeal should point out all the flaws in the original decision. The appeals court then reviews these issues. It corrects any mistakes or problems in the first decision. Then it makes its own ruling, either by overturning or upholding the original decision. Once an appeals court makes a decision, and the person who appealed accepts it, it's considered that they have used up all their appeal options. If they don't challenge the first appeals court's decision in a higher court, they can't claim to have any remaining complaints about the case. When Mr. Sethukumar appealed, the appeals authority did not find that the Bar Council acted with bad intentions. Also, Mr. Sethukumar chose not to take his remaining complaints to the Supreme Court. This meant he accepted the appeals authority's decision, which implied his complaint was properly handled and settled. Therefore, he could not then claim that the State Bar Council's original action was done with bad intentions. The court explained a legal idea called "merger." This means that when an appeals court makes a decision, the original decision from the lower court becomes part of the appeals court's decision. It then no longer exists on its own. Mr. Sethukumar, the lawyer who sued (the plaintiff), did not challenge the Bar Council of Tamil Nadu's decision in the Supreme Court. Since he failed to use this legal option by appealing to the next higher court, he is considered to have accepted the Bar Council's decision. Because of this, he is legally prevented from claiming that the Bar Council members (defendants 1 to 6) acted unfairly or with bad intentions. Therefore, the court found there was no valid reason to sue the Bar Council, its chairman, and members (respondents 1 to 6). Their names were removed from the lawsuit. Regarding the seventh respondent, who was the person who originally complained, the court said there was no law preventing Mr. Sethukumar from suing him. However, Mr. Sethukumar would have to prove that this person acted with bad intentions.
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1. The appellant-Bank, a nationalised one, took the ultimate step against the respondent as an employee in pursuance of departmental proceedings having found him guilty on various counts inter alia including breach of duty as a custodian of public money and dishonesty, fraud or manipulation of documents. The Industrial Tribunal ultimately upheld the decision of the appellant-Bank but in terms of the impugned judgment of the Allahabad High Court, five of the charges were found not proved while qua two of the charges the matter was remitted back to the Industrial Tribunal with a limited mandate. 2. The said decision was, however, stayed by this Court on 5.3.2019. 3. The respondent was employed with the appellant-Bank as a clerk- cum-cashier w.e.f. 14.9.1981. The appellant-Bank received a complaint dated 8.10.1994 from the sister-in-law of the respondent, Smt. Meera Srivastava, that the respondent had opened and operated a savings account No. 7882 in the joint name of the respondent and his sister-in- law by forging her signatures, and encashed a demand draft of Rs. 20,000/- which was issued to her by way of interim relief by Kalyan Nigam Limited in which her husband was employed as a Junior Engineer, who had unfortunately passed away in a road accident on 15.4.1994. The respondent was placed under suspension on 5.11.1994 by the Bank for committing acts of grave misconduct at the Gorakhpur Branch and he was issued a chargesheet dated 22.3.1995. The charges “Charge No.1: On 28.9.94 you went to the clearing house without collecting the outward clearing cheques from Mr. T.K. Sridhar officer in violation of the specific instructions of the Branch Manager Mr. R.N. Saxena and thus you committed an act of wilful insubordination which is a gross misconduct under para 19.5(e) of the Bipartite Settlement dated 19.10.66. Charge No.2: You refused to include the outward clearing cheques for Rs.2,21,161.47 for the day’s clearing on 28.9.94 when Mr. A.K. Chakraborthy and Mr. S.N. Pandey officer handed over the said cheques at the clearing house before 10.30 a.m., despite the specific instructions given by them, which is an act of wilful insubordination and is a gross misconduct under para 19.5(e) of the Bipartite Settlement dated 19.10.66. Charge No.3: By refusing to include the outward clearing cheques for Rs.2,21,161.47 for the day’s clearing on 28.9.94, you caused inconvenience and hardship to the Bank’s customers concerned and thus acted in a manner prejudicial to the interests of the Bank, which is a gross misconduct under para 19.5(j) of the Bipartite Settlement dated 19.10.66. Charge No.4: You fraudulently and dishonestly opened savings bank account No.7882 in the joint names of yourself and your sister-in-law Mrs. Meera Srivastava by forging the signature of the latter which is an act prejudicial to the interests of the Bank and a gross misconduct under para 19.5(j) of the Bipartite Settlement dated 19.10.66. Charge No.5: You fraudulently and dishonestly withdrew from the joint account No.7882 a sum of Rs.20,000/- (being the proceedings of the demand draft issued in favour of Mrs. Meera Srivastava and credited into the account) in two instalments of Rs.7,000/- and Rs.13,000/- on 20.5.94 and 13.6.94 respectively by forging the signature of Mrs. Meera Srivastava in the withdrawal slip which is an act prejudicial to the interests of the Bank and a gross misconduct under para 19.5(j) of the Bipartite Settlement dated 19.10.66. Charge No.6: By Gheraoing the Branch Manager Mr. R.N. Saxena along with a few outsiders and staff members, by threatening and abusing the Branch Manager I unparliamentary language and by forcibly taking the copy of the suspension order after searching the Branch Manager’s brief case, table drawer and his pocket on 9.11.94, you behaved in a riotous, disorderly and indecent manner which is a gross misconduct under para 19.5(c) of the Bipartite Settlement dated 19.10.66. Charge No.7: By erasing i) your own acknowledgement contained in the duplicate copy of the suspension order dated 5.11.94, ii) the narration made against your name in the attendance register through application of white fluid, you tampered with the records of the branch and thus acted in a manner prejudicial to the interest of the Bank which is a gross misconduct under para 19.5(j) of the Bipartite Settlement dated 4. The respondent denied the allegations in response to the chargesheet. An inquiry officer was appointed to adjudicate upon the charges. It is the appellant’s case that all principles of natural justice were followed and the respondent was supplied with all documents/material relied upon by the appellant-Bank. The inquiry officer concluded the inquiry and submitted the report dated 6.12.1995 opining that all charges stood proved against the respondent. Consequently, the respondent was served with a show cause notice dated 28.2.1996 by the Disciplinary Authority proposing the punishment of dismissal from service. The respondent submitted a reply but the Disciplinary Authority after considering the reply proceeded to uphold the finding and impose the penalty of dismissal from service vide order 5. The respondent filed an appeal before the appellate authority but the appellate authority rejected the appeal vide order dated 10.9.1996. 6. The respondent sought to raise an industrial dispute and the Central Government referred the dispute vide G.O. dated 30.10.2003 to Kanpur on the issue whether the action of the Management imposing the penalty of dismissal was justified and legal. 7. The proceedings were contested before the Tribunal and the Tribunal framed a preliminary issue on the question of fairness of the domestic inquiry. The Tribunal vide order dated 15.11.2011 decided the preliminary issue against the appellant as the appellant- Management/Bank had failed to produce original documents and most photocopies of the relevant pages were not readable. It was, thus, concluded that there was violation of the principles of natural justice. However, the Tribunal granted an opportunity to the appellant-Bank to prove the charges against respondent by adducing evidence. The Bank led its evidence by producing five witnesses while the respondent examined himself. The Tribunal vide award dated 21.2.2013 answered the reference against the respondent opining that the appellant- Bank/Management had been successful in establishing all the charges against the respondent. On the issue of quantum of punishment also it was held that the same was commensurate to the charges levelled and proved against the respondent. 8. The appellant sought to assail this order of the Tribunal by filing writ petition, being WP(C) No. 53458/2013, before the High Court of Judicature at Allahabad. In terms of the impugned judgment dated 31.5.2018, the said writ petition has been allowed while remitting matter back in respect of charges 4 & 5. The impugned judgment held that when the earlier departmental proceedings were found to be violative of the principles of natural justice then no findings vis-a-vis charges 1, 2, 3, 6 & 7 should have been arrived at, based on the plea that the Bank led evidence only in respect of charges 4 & 5. In respect of charges 4 & 5 it was opined that on the request of the respondent the signatures of Mrs. Meera Srivastava should have been got compared with her admitted signatures by an expert and then only a correct conclusion could have been arrived at whether the signatures on the account opening form or the withdrawal form have been forged by the respondent or not and the Tribunal should have refrained from acting like an expert. This was so as fraud was alleged and a degree of investigation should have been a standard which is resorted to by a criminal court. 9. We may notice at this stage that the inquiry officer had opined that while observing the admitted signatures in comparison with the signatures in question from a banker’s eye it could be said that there is absence of similarity. Mrs. Meera Srivastava’s claim was that even the account was opened fraudulently without her ever visiting the bank. The position was the same with respect to two withdrawal slips of Rs.7,000/- and Rs.13,000/-. Mrs. Meera Srivastava had corroborated this aspect in her deposition. In the deposition she accepted that both her and the respondent were members of a joint family but the drafts were given to the respondent for safe-keeping and when after one and a half month she asked the respondent to return her draft he refused to do so on one pretext or the other. Thus, two or three months later she complained to the bank on learning that the drafts had been encashed at the Branch. On making the complaint she got her money from the Bank. In her cross- examination it was never put to her that she had gone to the Bank to open the account and the account opening form bears her signatures nor was it put to her that she had gone to the Bank to withdraw the amounts of Rs.7,000/- and Rs.13,000/-. Her statement was opined to have been trustworthy by both the inquiry officer and the Industrial Tribunal. 10. It was the submission of the learned counsel for the appellant that the High Court fell into an error in applying the standards of proof of criminal proceedings to disciplinary proceedings as the misconduct by an employee in disciplinary proceedings is to be evaluated on the basis of probabilities and preponderance of evidence. There was sufficient evidence to show that the respondent committed fraud and forgery by manipulating the signatures of the complainant Mrs. Meera Srivastava, opening an account, operating the account and appropriating the sum of Rs.20,000/- received through a demand draft as compensation on the demise of her husband. The respondent took advantage of the complainant being his sister-in-law. The complainant has given clear and unequivocal testimony on oath before the Tribunal and nothing had come out to the contrary in her cross-examination. In fact, regarding this aspect, it was submitted that there was no material cross-examination and there is no reason to doubt her testimony. 11. Insofar as the remaining charges are concerned, the documents led to an irresistible conclusion that even those charges relating to insubordination, disobeying the orders of the higher authorities, forging the suspension letters were proved and even by themselves were sufficient to award the punishment of dismissal from service. 12. Learned counsel for the respondent on the other hand pleaded that in terms of the impugned judgment charges other than charges 4 & 5 were in any case not proved as no evidence had been led in that behalf and reliance could not be placed only on documents. 13. It was further submitted that charges 4 & 5 were also not proved and sought to refer to the judgment of this Court in Lalit Popli v. Canara Bank1 more specifically para 13, which reads as under: “13. It is to be noted that under Sections 45 and 47 of the Evidence Act, the Court has to take a view on the opinion of others, whereas under Section 73 of the said Act, the Court by its own comparison of writings can form its opinion. Evidence of the identity of handwriting is dealt with in three Sections of the Evidence Act. They are Sections 45, 47 and 73. Both under Sections 45 and 47 the evidence is an opinion. In the former case it is by a scientific comparison and in the latter on the basis of familiarity resulting from frequent observations and experiences. In both the cases, the Court is required to satisfy itself by such means as are open to conclude that the opinion may be acted upon. Irrespective of an opinion of the Handwriting Expert, the Court can compare the admitted writing with disputed writing and come to its own independent conclusion. Such exercise of comparison is permissible under Section 73 of the Evidence Act. Ordinarily, Sections 45 and 73 are complementary to each other. Evidence of Handwriting Expert need not be invariably corroborated. It is for the Court to decide whether to accept such an uncorroborated evidence or not. It is clear that even when experts' evidence is not there, Court has power to compare the writings and decide the matter. [See Murari Lal vs. State of Madhya Pradesh (1980) 1 SCC 14. On having considered the rival submissions of the learned counsel for the parties, we are of the view that the High Court has fallen into an error in coming to the conclusion in the impugned judgment and directing, once again, the matter to be remitted to the Industrial Tribunal to now seek opinion of a hand writing expert. 15. We would like to emphasise at the threshold that there are certain inherent legal limitations to the scrutiny of an award of a Tribunal by the High Court while exercising jurisdiction under Article 226 of the Constitution of India. We may refer to the judgment of this Court in GE Power India Ltd. (Formerly Known as M/s. Alstom Projects Ltd.) v. A. Aziz2. If there is no jurisdictional error or violation of natural justice or error of law apparent on the face of the record, there is no occasion for the High Court to get into the merits of the controversy as an appellate court. That too, on the aspect of an opinion formed in respect of two sets of signatures where the inquiry was held by an officer of the bank who came to an opinion on a bare comparison of the signatures that there is a difference in the same. It has been looked at from the perspective of a “banker’s eye”. This is, of course, apart from the testimony of the sister- in-law of the respondent. 16. We have in the course of noting the submissions of the learned counsel for the parties in the context of the factual matrix recorded in para 9 that the Inquiry Officer had himself opined while observing the admitted signatures in comparison with the signatures in question from a “banker’s eye”, it was not just the ipse dixit of the Inquiry Officer but was based on the deposition of the sister-in-law of the respondent, Mrs. Meera Srivastava. The deposition of Mrs. Meera Srivastava was clear and unambiguous. She was staying in a joint family of which the respondent was a part. She unfortunately lost her husband in an accident. The two drafts were received from his employer and those drafts were kept in custody with the respondent, possibly because he was a banker and the elder brother of her deceased husband. Instead of extending the benefits of the same to her, the respondent went on a path of opening an account jointly in his and his sister-in-law’s name, presenting the drafts, and drawing the amounts with appropriation of the same to himself. Mrs. Meera Srivastava had not even visited the bank to sign the account opening form or the signature cards, nor had she presented the drafts or signed the encashment vouchers. In fact, it is only when she complained about not receiving the amount that the bank inquired into it and, at least, the money was transferred to her. Her cross-examination elicited nothing, nor for that matter was it put to her in cross-examination that she had ever visited the bank, opened the account or signed the encashment vouchers. The relationships in the family were not estranged nor was there any endeavour to “fix” the respondent by a relative. In our view this evidence was enough to implicate the respondent. 17. The High Court appears to have applied the test of criminal proceedings to departmental proceedings while traversing the path of requirement of a hand writing expert to be called for the said purpose. This would go contrary to the settled legal position enunciated by this Court. It would suffice for us to refer to a recent judgment in Ashoo Surendranath Tewari v. Deputy Superintendent of Police, EOW, CBI 3 where it has been observed while referring to earlier judicial precedents, that the standard of proof in departmental proceedings, being based on preponderance of probability, is somewhat lower than the standard of proof in criminal proceedings where the case has to be proved beyond reasonable doubt. 18. We may also notice that the High Court has opined that only charges 4 & 5 could really have been gone into by the Industrial Tribunal, which required further evidence in its opinion, of a hand writing expert. So far as the other charges are concerned, a conclusion was reached that no further evidence was led. 19. In our view this is neither the correct approach nor borne out of the record. Evidence was led. Even earlier, the material in respect of other charges emanates from the record of the bank which shows the conduct of the respondent which are apparent from the manner of framing of the charges themselves and the material led in support thereof. Thus, even the aspect of the other charges could not have been brushed aside in the manner it purports to. On the matter being remitted back, two witnesses deposed as to these aspects, being MW-3 and MW-4. The respondent was a clerk-cum-cashier. It is a post of confidence. The respondent breached that confidence. In fact, the respondent breached the trust of a widowed sister-in-law as well as of the bank, making it hardly a case for interference either on law or on moral grounds. The punishment imposed on the respondent could also hardly be said to be disproportionate. The conduct established of the respondent did not entitle him to continue in service. 20. We are, thus, of the view that the impugned judgment dated 31.5.2018 of the High Court is liable to be set aside and the challenge to the award of the Industrial Tribunal dated 21.2.2013 is repelled. 21. The appeal is accordingly allowed leaving the parties to bear their own costs.
In a case where a bank employee faked signatures to cash a check called a Demand Draft, the Supreme Court decided that the bank didn't need to call a handwriting expert for its internal investigation. The Court supported the way the bank's investigator compared the signatures himself, using his expert knowledge as a "banker." The Supreme Court explained that the rules for criminal court cases shouldn't be used in a company's internal investigation, especially when deciding if a handwriting expert is needed. The Supreme Court clarified that in company investigations, proof only needs to show something is 'more likely true than not.' This is a lower level of proof than in criminal cases, where something must be 'proven beyond all reasonable doubt.' Two Supreme Court judges, Justices Sanjay Kishan Kaul and M.M. Sundresh, approved an appeal from the Indian Overseas Bank. The bank was challenging a decision by the Allahabad High Court. That High Court had said five out of seven accusations against the employee were not proven. For the remaining charges, the High Court sent the case back to a special court for worker-employer disputes, called an Industrial Tribunal. It's important to know that the Tribunal had originally agreed with the Bank's decision to fire the employee. Factual Background On September 14, 1981, the employee started working as a clerk and cashier at the Indian Overseas Bank. On October 8, 1994, the Bank received a complaint from the employee's sister-in-law. She claimed he had opened a joint bank account with her by faking her signatures. She also said he had cashed a Rs. 20,000 Demand Draft meant for her as payment after her husband's death. The Bank suspended the employee on November 5, 1994, because of his serious bad behavior and disobedience. He received a formal list of accusations on March 22, 1995. An investigation officer looked into these charges fairly and concluded they were true. The bank's department in charge of employee discipline then sent him a notice on February 28, 1996, asking him to explain himself. After considering his answer, the bank fired him on May 11, 1996. His appeal within the bank was also denied. After this, the employee started a formal disagreement over his firing, which was sent to the Industrial Tribunal in Kanpur. The Tribunal first found that the Bank had not followed fair rules. However, it finally ruled against the employee because the Bank successfully proved the accusations. The employee then challenged this decision, but the Allahabad High Court cancelled it. The High Court sent the case back to the Tribunal, but only to decide on the 4th and 5th charges, which were about fraud and faking documents to open the joint account and cash the Demand Draft. Submissions made by the appellant The main lawyer for the Bank argued that the High Court was wrong to use the strict rules for proving a crime in an internal company investigation. The lawyer said that the employee's bad behavior should only need to be shown as 'more likely than not,' not 'beyond all reasonable doubt.' The lawyer claimed there was plenty of evidence to show that the employee had committed fraud and faked documents to open the joint account and take money from it. The sister-in-law had also given a very clear and direct statement about this. The lawyer also argued there was enough evidence for the charges of disobedience and general bad behavior to punish the employee. Submissions made by the respondent The employee's lawyer argued that the charges other than the 4th and 5th were not proven because no evidence was presented for them. The lawyer also referred to a previous court case (Lalit Popli v. Canara Bank). Based on this, the lawyer argued that the 4th and 5th charges were also not proven because a handwriting expert had not examined the signatures. Analysis by the Supreme Court First, the Supreme Court referred to a previous case (GE Power India Ltd. v. A. Aziz). The Court noted that under a specific part of the Constitution (Article 226), the High Court usually has limited power to review decisions made by lower courts like the Tribunal. The Supreme Court said that if there were no serious legal errors, unfair processes, or clear mistakes in the records, the High Court should not have reviewed the actual facts of the case. Furthermore, the original investigator had compared two signatures himself and found them to be different, using his professional "banker's eye." The Court also noted the sister-in-law's clear and direct statement, which could not be disproven when she was questioned. The Court also pointed out that the sister-in-law never went to the bank or tried to cash the check herself. After considering what both lawyers said, the Court believed there was enough evidence to show the employee was involved. Referring to another case (Ashoo Surendranath Tewari v. Deputy Superintendent of police), the Court believed the High Court had used the rules for criminal cases in an internal company investigation by insisting on a handwriting expert to check the signatures. The Supreme Court also disagreed with the High Court's idea that the Tribunal should have only looked at the 4th and 5th charges. The High Court had said this because the bank supposedly didn't present evidence for the other five charges, and because it thought a handwriting expert was needed for the 4th and 5th charges. The Court explained why firing the employee was the correct punishment, stating: "The employee worked as a clerk and cashier. This job requires trust. The employee broke that trust. In fact, the employee broke the trust of a widowed sister-in-law as well as the bank. This makes it a clear case where the court should not change the decision, either legally or morally. The punishment given to the employee could also hardly be called too severe. The employee's proven actions meant he did not deserve to continue working for the bank." Case Name: Indian Overseas Bank And Ors. v. Om Prakash Lal Srivastava Case No. and Date: Civil Appeal No. 267 of 2022 | 19 Jan 2022 Corum: Justices Sanjay Kishan Kaul and M.M. Sundresh
1. The appellant-Bank, a nationalised one, took the ultimate step against the respondent as an employee in pursuance of departmental proceedings having found him guilty on various counts inter alia including breach of duty as a custodian of public money and dishonesty, fraud or manipulation of documents. The Industrial Tribunal ultimately upheld the decision of the appellant-Bank but in terms of the impugned judgment of the Allahabad High Court, five of the charges were found not proved while qua two of the charges the matter was remitted back to the Industrial Tribunal with a limited mandate. 2. The said decision was, however, stayed by this Court on 5.3.2019. 3. The respondent was employed with the appellant-Bank as a clerk- cum-cashier w.e.f. 14.9.1981. The appellant-Bank received a complaint dated 8.10.1994 from the sister-in-law of the respondent, Smt. Meera Srivastava, that the respondent had opened and operated a savings account No. 7882 in the joint name of the respondent and his sister-in- law by forging her signatures, and encashed a demand draft of Rs. 20,000/- which was issued to her by way of interim relief by Kalyan Nigam Limited in which her husband was employed as a Junior Engineer, who had unfortunately passed away in a road accident on 15.4.1994. The respondent was placed under suspension on 5.11.1994 by the Bank for committing acts of grave misconduct at the Gorakhpur Branch and he was issued a chargesheet dated 22.3.1995. The charges “Charge No.1: On 28.9.94 you went to the clearing house without collecting the outward clearing cheques from Mr. T.K. Sridhar officer in violation of the specific instructions of the Branch Manager Mr. R.N. Saxena and thus you committed an act of wilful insubordination which is a gross misconduct under para 19.5(e) of the Bipartite Settlement dated 19.10.66. Charge No.2: You refused to include the outward clearing cheques for Rs.2,21,161.47 for the day’s clearing on 28.9.94 when Mr. A.K. Chakraborthy and Mr. S.N. Pandey officer handed over the said cheques at the clearing house before 10.30 a.m., despite the specific instructions given by them, which is an act of wilful insubordination and is a gross misconduct under para 19.5(e) of the Bipartite Settlement dated 19.10.66. Charge No.3: By refusing to include the outward clearing cheques for Rs.2,21,161.47 for the day’s clearing on 28.9.94, you caused inconvenience and hardship to the Bank’s customers concerned and thus acted in a manner prejudicial to the interests of the Bank, which is a gross misconduct under para 19.5(j) of the Bipartite Settlement dated 19.10.66. Charge No.4: You fraudulently and dishonestly opened savings bank account No.7882 in the joint names of yourself and your sister-in-law Mrs. Meera Srivastava by forging the signature of the latter which is an act prejudicial to the interests of the Bank and a gross misconduct under para 19.5(j) of the Bipartite Settlement dated 19.10.66. Charge No.5: You fraudulently and dishonestly withdrew from the joint account No.7882 a sum of Rs.20,000/- (being the proceedings of the demand draft issued in favour of Mrs. Meera Srivastava and credited into the account) in two instalments of Rs.7,000/- and Rs.13,000/- on 20.5.94 and 13.6.94 respectively by forging the signature of Mrs. Meera Srivastava in the withdrawal slip which is an act prejudicial to the interests of the Bank and a gross misconduct under para 19.5(j) of the Bipartite Settlement dated 19.10.66. Charge No.6: By Gheraoing the Branch Manager Mr. R.N. Saxena along with a few outsiders and staff members, by threatening and abusing the Branch Manager I unparliamentary language and by forcibly taking the copy of the suspension order after searching the Branch Manager’s brief case, table drawer and his pocket on 9.11.94, you behaved in a riotous, disorderly and indecent manner which is a gross misconduct under para 19.5(c) of the Bipartite Settlement dated 19.10.66. Charge No.7: By erasing i) your own acknowledgement contained in the duplicate copy of the suspension order dated 5.11.94, ii) the narration made against your name in the attendance register through application of white fluid, you tampered with the records of the branch and thus acted in a manner prejudicial to the interest of the Bank which is a gross misconduct under para 19.5(j) of the Bipartite Settlement dated 4. The respondent denied the allegations in response to the chargesheet. An inquiry officer was appointed to adjudicate upon the charges. It is the appellant’s case that all principles of natural justice were followed and the respondent was supplied with all documents/material relied upon by the appellant-Bank. The inquiry officer concluded the inquiry and submitted the report dated 6.12.1995 opining that all charges stood proved against the respondent. Consequently, the respondent was served with a show cause notice dated 28.2.1996 by the Disciplinary Authority proposing the punishment of dismissal from service. The respondent submitted a reply but the Disciplinary Authority after considering the reply proceeded to uphold the finding and impose the penalty of dismissal from service vide order 5. The respondent filed an appeal before the appellate authority but the appellate authority rejected the appeal vide order dated 10.9.1996. 6. The respondent sought to raise an industrial dispute and the Central Government referred the dispute vide G.O. dated 30.10.2003 to Kanpur on the issue whether the action of the Management imposing the penalty of dismissal was justified and legal. 7. The proceedings were contested before the Tribunal and the Tribunal framed a preliminary issue on the question of fairness of the domestic inquiry. The Tribunal vide order dated 15.11.2011 decided the preliminary issue against the appellant as the appellant- Management/Bank had failed to produce original documents and most photocopies of the relevant pages were not readable. It was, thus, concluded that there was violation of the principles of natural justice. However, the Tribunal granted an opportunity to the appellant-Bank to prove the charges against respondent by adducing evidence. The Bank led its evidence by producing five witnesses while the respondent examined himself. The Tribunal vide award dated 21.2.2013 answered the reference against the respondent opining that the appellant- Bank/Management had been successful in establishing all the charges against the respondent. On the issue of quantum of punishment also it was held that the same was commensurate to the charges levelled and proved against the respondent. 8. The appellant sought to assail this order of the Tribunal by filing writ petition, being WP(C) No. 53458/2013, before the High Court of Judicature at Allahabad. In terms of the impugned judgment dated 31.5.2018, the said writ petition has been allowed while remitting matter back in respect of charges 4 & 5. The impugned judgment held that when the earlier departmental proceedings were found to be violative of the principles of natural justice then no findings vis-a-vis charges 1, 2, 3, 6 & 7 should have been arrived at, based on the plea that the Bank led evidence only in respect of charges 4 & 5. In respect of charges 4 & 5 it was opined that on the request of the respondent the signatures of Mrs. Meera Srivastava should have been got compared with her admitted signatures by an expert and then only a correct conclusion could have been arrived at whether the signatures on the account opening form or the withdrawal form have been forged by the respondent or not and the Tribunal should have refrained from acting like an expert. This was so as fraud was alleged and a degree of investigation should have been a standard which is resorted to by a criminal court. 9. We may notice at this stage that the inquiry officer had opined that while observing the admitted signatures in comparison with the signatures in question from a banker’s eye it could be said that there is absence of similarity. Mrs. Meera Srivastava’s claim was that even the account was opened fraudulently without her ever visiting the bank. The position was the same with respect to two withdrawal slips of Rs.7,000/- and Rs.13,000/-. Mrs. Meera Srivastava had corroborated this aspect in her deposition. In the deposition she accepted that both her and the respondent were members of a joint family but the drafts were given to the respondent for safe-keeping and when after one and a half month she asked the respondent to return her draft he refused to do so on one pretext or the other. Thus, two or three months later she complained to the bank on learning that the drafts had been encashed at the Branch. On making the complaint she got her money from the Bank. In her cross- examination it was never put to her that she had gone to the Bank to open the account and the account opening form bears her signatures nor was it put to her that she had gone to the Bank to withdraw the amounts of Rs.7,000/- and Rs.13,000/-. Her statement was opined to have been trustworthy by both the inquiry officer and the Industrial Tribunal. 10. It was the submission of the learned counsel for the appellant that the High Court fell into an error in applying the standards of proof of criminal proceedings to disciplinary proceedings as the misconduct by an employee in disciplinary proceedings is to be evaluated on the basis of probabilities and preponderance of evidence. There was sufficient evidence to show that the respondent committed fraud and forgery by manipulating the signatures of the complainant Mrs. Meera Srivastava, opening an account, operating the account and appropriating the sum of Rs.20,000/- received through a demand draft as compensation on the demise of her husband. The respondent took advantage of the complainant being his sister-in-law. The complainant has given clear and unequivocal testimony on oath before the Tribunal and nothing had come out to the contrary in her cross-examination. In fact, regarding this aspect, it was submitted that there was no material cross-examination and there is no reason to doubt her testimony. 11. Insofar as the remaining charges are concerned, the documents led to an irresistible conclusion that even those charges relating to insubordination, disobeying the orders of the higher authorities, forging the suspension letters were proved and even by themselves were sufficient to award the punishment of dismissal from service. 12. Learned counsel for the respondent on the other hand pleaded that in terms of the impugned judgment charges other than charges 4 & 5 were in any case not proved as no evidence had been led in that behalf and reliance could not be placed only on documents. 13. It was further submitted that charges 4 & 5 were also not proved and sought to refer to the judgment of this Court in Lalit Popli v. Canara Bank1 more specifically para 13, which reads as under: “13. It is to be noted that under Sections 45 and 47 of the Evidence Act, the Court has to take a view on the opinion of others, whereas under Section 73 of the said Act, the Court by its own comparison of writings can form its opinion. Evidence of the identity of handwriting is dealt with in three Sections of the Evidence Act. They are Sections 45, 47 and 73. Both under Sections 45 and 47 the evidence is an opinion. In the former case it is by a scientific comparison and in the latter on the basis of familiarity resulting from frequent observations and experiences. In both the cases, the Court is required to satisfy itself by such means as are open to conclude that the opinion may be acted upon. Irrespective of an opinion of the Handwriting Expert, the Court can compare the admitted writing with disputed writing and come to its own independent conclusion. Such exercise of comparison is permissible under Section 73 of the Evidence Act. Ordinarily, Sections 45 and 73 are complementary to each other. Evidence of Handwriting Expert need not be invariably corroborated. It is for the Court to decide whether to accept such an uncorroborated evidence or not. It is clear that even when experts' evidence is not there, Court has power to compare the writings and decide the matter. [See Murari Lal vs. State of Madhya Pradesh (1980) 1 SCC 14. On having considered the rival submissions of the learned counsel for the parties, we are of the view that the High Court has fallen into an error in coming to the conclusion in the impugned judgment and directing, once again, the matter to be remitted to the Industrial Tribunal to now seek opinion of a hand writing expert. 15. We would like to emphasise at the threshold that there are certain inherent legal limitations to the scrutiny of an award of a Tribunal by the High Court while exercising jurisdiction under Article 226 of the Constitution of India. We may refer to the judgment of this Court in GE Power India Ltd. (Formerly Known as M/s. Alstom Projects Ltd.) v. A. Aziz2. If there is no jurisdictional error or violation of natural justice or error of law apparent on the face of the record, there is no occasion for the High Court to get into the merits of the controversy as an appellate court. That too, on the aspect of an opinion formed in respect of two sets of signatures where the inquiry was held by an officer of the bank who came to an opinion on a bare comparison of the signatures that there is a difference in the same. It has been looked at from the perspective of a “banker’s eye”. This is, of course, apart from the testimony of the sister- in-law of the respondent. 16. We have in the course of noting the submissions of the learned counsel for the parties in the context of the factual matrix recorded in para 9 that the Inquiry Officer had himself opined while observing the admitted signatures in comparison with the signatures in question from a “banker’s eye”, it was not just the ipse dixit of the Inquiry Officer but was based on the deposition of the sister-in-law of the respondent, Mrs. Meera Srivastava. The deposition of Mrs. Meera Srivastava was clear and unambiguous. She was staying in a joint family of which the respondent was a part. She unfortunately lost her husband in an accident. The two drafts were received from his employer and those drafts were kept in custody with the respondent, possibly because he was a banker and the elder brother of her deceased husband. Instead of extending the benefits of the same to her, the respondent went on a path of opening an account jointly in his and his sister-in-law’s name, presenting the drafts, and drawing the amounts with appropriation of the same to himself. Mrs. Meera Srivastava had not even visited the bank to sign the account opening form or the signature cards, nor had she presented the drafts or signed the encashment vouchers. In fact, it is only when she complained about not receiving the amount that the bank inquired into it and, at least, the money was transferred to her. Her cross-examination elicited nothing, nor for that matter was it put to her in cross-examination that she had ever visited the bank, opened the account or signed the encashment vouchers. The relationships in the family were not estranged nor was there any endeavour to “fix” the respondent by a relative. In our view this evidence was enough to implicate the respondent. 17. The High Court appears to have applied the test of criminal proceedings to departmental proceedings while traversing the path of requirement of a hand writing expert to be called for the said purpose. This would go contrary to the settled legal position enunciated by this Court. It would suffice for us to refer to a recent judgment in Ashoo Surendranath Tewari v. Deputy Superintendent of Police, EOW, CBI 3 where it has been observed while referring to earlier judicial precedents, that the standard of proof in departmental proceedings, being based on preponderance of probability, is somewhat lower than the standard of proof in criminal proceedings where the case has to be proved beyond reasonable doubt. 18. We may also notice that the High Court has opined that only charges 4 & 5 could really have been gone into by the Industrial Tribunal, which required further evidence in its opinion, of a hand writing expert. So far as the other charges are concerned, a conclusion was reached that no further evidence was led. 19. In our view this is neither the correct approach nor borne out of the record. Evidence was led. Even earlier, the material in respect of other charges emanates from the record of the bank which shows the conduct of the respondent which are apparent from the manner of framing of the charges themselves and the material led in support thereof. Thus, even the aspect of the other charges could not have been brushed aside in the manner it purports to. On the matter being remitted back, two witnesses deposed as to these aspects, being MW-3 and MW-4. The respondent was a clerk-cum-cashier. It is a post of confidence. The respondent breached that confidence. In fact, the respondent breached the trust of a widowed sister-in-law as well as of the bank, making it hardly a case for interference either on law or on moral grounds. The punishment imposed on the respondent could also hardly be said to be disproportionate. The conduct established of the respondent did not entitle him to continue in service. 20. We are, thus, of the view that the impugned judgment dated 31.5.2018 of the High Court is liable to be set aside and the challenge to the award of the Industrial Tribunal dated 21.2.2013 is repelled. 21. The appeal is accordingly allowed leaving the parties to bear their own costs.
In a case where a bank employee faked signatures to cash a check called a Demand Draft, the Supreme Court decided that the bank didn't need to call a handwriting expert for its internal investigation. The Court supported the way the bank's investigator compared the signatures himself, using his expert knowledge as a "banker." The Supreme Court explained that the rules for criminal court cases shouldn't be used in a company's internal investigation, especially when deciding if a handwriting expert is needed. The Supreme Court clarified that in company investigations, proof only needs to show something is 'more likely true than not.' This is a lower level of proof than in criminal cases, where something must be 'proven beyond all reasonable doubt.' Two Supreme Court judges, Justices Sanjay Kishan Kaul and M.M. Sundresh, approved an appeal from the Indian Overseas Bank. The bank was challenging a decision by the Allahabad High Court. That High Court had said five out of seven accusations against the employee were not proven. For the remaining charges, the High Court sent the case back to a special court for worker-employer disputes, called an Industrial Tribunal. It's important to know that the Tribunal had originally agreed with the Bank's decision to fire the employee. Factual Background On September 14, 1981, the employee started working as a clerk and cashier at the Indian Overseas Bank. On October 8, 1994, the Bank received a complaint from the employee's sister-in-law. She claimed he had opened a joint bank account with her by faking her signatures. She also said he had cashed a Rs. 20,000 Demand Draft meant for her as payment after her husband's death. The Bank suspended the employee on November 5, 1994, because of his serious bad behavior and disobedience. He received a formal list of accusations on March 22, 1995. An investigation officer looked into these charges fairly and concluded they were true. The bank's department in charge of employee discipline then sent him a notice on February 28, 1996, asking him to explain himself. After considering his answer, the bank fired him on May 11, 1996. His appeal within the bank was also denied. After this, the employee started a formal disagreement over his firing, which was sent to the Industrial Tribunal in Kanpur. The Tribunal first found that the Bank had not followed fair rules. However, it finally ruled against the employee because the Bank successfully proved the accusations. The employee then challenged this decision, but the Allahabad High Court cancelled it. The High Court sent the case back to the Tribunal, but only to decide on the 4th and 5th charges, which were about fraud and faking documents to open the joint account and cash the Demand Draft. Submissions made by the appellant The main lawyer for the Bank argued that the High Court was wrong to use the strict rules for proving a crime in an internal company investigation. The lawyer said that the employee's bad behavior should only need to be shown as 'more likely than not,' not 'beyond all reasonable doubt.' The lawyer claimed there was plenty of evidence to show that the employee had committed fraud and faked documents to open the joint account and take money from it. The sister-in-law had also given a very clear and direct statement about this. The lawyer also argued there was enough evidence for the charges of disobedience and general bad behavior to punish the employee. Submissions made by the respondent The employee's lawyer argued that the charges other than the 4th and 5th were not proven because no evidence was presented for them. The lawyer also referred to a previous court case (Lalit Popli v. Canara Bank). Based on this, the lawyer argued that the 4th and 5th charges were also not proven because a handwriting expert had not examined the signatures. Analysis by the Supreme Court First, the Supreme Court referred to a previous case (GE Power India Ltd. v. A. Aziz). The Court noted that under a specific part of the Constitution (Article 226), the High Court usually has limited power to review decisions made by lower courts like the Tribunal. The Supreme Court said that if there were no serious legal errors, unfair processes, or clear mistakes in the records, the High Court should not have reviewed the actual facts of the case. Furthermore, the original investigator had compared two signatures himself and found them to be different, using his professional "banker's eye." The Court also noted the sister-in-law's clear and direct statement, which could not be disproven when she was questioned. The Court also pointed out that the sister-in-law never went to the bank or tried to cash the check herself. After considering what both lawyers said, the Court believed there was enough evidence to show the employee was involved. Referring to another case (Ashoo Surendranath Tewari v. Deputy Superintendent of police), the Court believed the High Court had used the rules for criminal cases in an internal company investigation by insisting on a handwriting expert to check the signatures. The Supreme Court also disagreed with the High Court's idea that the Tribunal should have only looked at the 4th and 5th charges. The High Court had said this because the bank supposedly didn't present evidence for the other five charges, and because it thought a handwriting expert was needed for the 4th and 5th charges. The Court explained why firing the employee was the correct punishment, stating: "The employee worked as a clerk and cashier. This job requires trust. The employee broke that trust. In fact, the employee broke the trust of a widowed sister-in-law as well as the bank. This makes it a clear case where the court should not change the decision, either legally or morally. The punishment given to the employee could also hardly be called too severe. The employee's proven actions meant he did not deserve to continue working for the bank." Case Name: Indian Overseas Bank And Ors. v. Om Prakash Lal Srivastava Case No. and Date: Civil Appeal No. 267 of 2022 | 19 Jan 2022 Corum: Justices Sanjay Kishan Kaul and M.M. Sundresh
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and C.M.P. Nos.9919, 9922, 9925, 9937 and 9939 of 2021 1.The State of Tamil Nadu, ...Appellants in W.A.Nos.1573,1574 and 1577 of 2021 ...Appellants in W.A.Nos.1574 and 1577 of 2021 Common Prayer: The Writ Appeal is filed under Clause 15 of Letters Patent praying to set aside the common order dated 18.12.2020 passed in W.P.Nos.8916, 9555 and 9559 of 2019. [Order of the Court was made by S.VAIDYANATHAN,J. and N.MALA,J.] The issues raised in all the writ appeals are common. Therefore all the three writ appeals are taken up together and disposed by this common order. The individual facts of each case is dealt with separately as there are slight variations in the service particulars of the respondent/writ petitioners. 2. Brief Facts in W.A. No. 1573 of 2021: The respondent was appointed as secondary grade teacher on 07.12.1998 in the second respondent school which is an aided elementary school governed by Tamil Nadu Private School Regulation Act. The respondent was appointed against sanctioned vacancy in view of the resignation of the earlier incumbent on 31.07.1997. The proposal for approval of the respondents appointment was rejected by the District Elementary Educational officer, the 3rd appellant herein, on the ground that the respondents appointment was in violation of G.O.Ms.No.559 dated 11.07.1995 which prohibited the appointment of higher qualified persons to The respondent was appointed as a secondary grade teacher on 05.03.2001 in the second respondent school which is an aided elementary school governed by Tamil Nadu Private School Regulation Act. The respondent was appointed against the sanctioned vacancy which arose in view of the resignation of the earlier incumbent on 05.04.1998. Soon after the appointment of the respondent a proposal was sent for approval of her appointment to the third appellant for approval. The proposal was rejected by the 3rd Appellant on the ground that her appointment was in violation of G.O.Ms.No.559 dated 11.07.1995 which prohibited the appointment of higher qualified persons to the post of secondary grade teacher. 4. Brief Facts in W.A. No. 1577 of 2021: The respondent was appointed as a secondary grade teacher on 25.11.1998 in the second respondent school which is an aided elementary school governed by Tamil Nadu Private School Regulation Act. The respondent was appointed against the sanctioned vacancy which arose in view of the resignation of the earlier incumbent on 03.10.1996. Soon after the appointment of the respondent a proposal was sent for approval of her appointment to the third appellant. The proposal was rejected by the 3rd appellant on the ground that her appointment was in violation of G.O.Ms.No.559 dated 11.07.1995 which prohibited the appointment of higher qualified persons to the post of secondary grade teacher. 5. The further facts apart from the above brief facts are as follows: The Government of Tamil Nadu passed G.O.Ms.No.559 School Education Department dated 11.07.1995 prohibiting the appointment of graduate teachers in secondary grade vacancy. The schools in question appointed the respondents on the dates mentioned supra, which was against G.O.Ms. 559 dated 11.07.1995. The appellants therefore did not approve the appointment of the respondents. Teachers who were affected by Go.Ms.No.559 dated 11.07.1995 approached the Hon'ble Court in W.P. No. 6388 of 1993 and W.A Nos. 991 to 998 of 1998 and the Hon'ble Division Bench by order dated 29.06.2001 upheld the validity of the said G.O with a direction to approve the appointments made from 11.07.1995 to 19.05.1998. Consequent to the judgment of this Hon'ble Court the Government passed G.O.Ms.No.155 School Education Department dated 03.10.2002 with a direction to approve the appointment up to 19.05.1998, subject to the completion of one month Child Psychology Training by the said teachers. In pursuance to G.O.Ms.No. 155 dated 03.10.2002 the teachers covered under the said G.O underwent one month Child Psychology Training and on completion of the training their appointments were approved in the regular time scale of pay in the year 2003. 6.The respondents and 19 similarly placed teachers who were not considered for extension of benefits under G.O.Ms.No.155 dated 03.10.2002 on the ground that their appointments were beyond the cut off date of 19.05.1998 through an association which espoused their cause submitted a memorandum to the Government seeking extension of benefit of G.O.Ms.No.155 dated 03.10.2002 in respect of the teachers who were appointed upto the order of the Hon'ble Division Bench Judgment dated 29.06.2001. The Government considered the memorandum favourably and issued G.O.Ms.No.150 dated 02.07.2007 extending the benefits of G.O.Ms.No.155 dated 03.10.2002 to the respondents and 19 similarly placed teachers. In pursuance of G.O.Ms.No.150 of 02.07.2007 the Government approved the appointments of the teachers covered under the said G.O. on completion of Child Psychology Training vide proceeding dated 04.12.2007 with effect from 7.As G.O.Ms.No.155 dated 03.10.2002 not only covered the approval of the secondary grade teachers with higher qualification but also contained certain provisions which contemplated recovery of payments from the teachers the aggrieved teachers filed several cases in W.A.Nos. 249, 282 and 448 to 452 of 2002 and 80 of 2004 and W.P.No. 42067 batch. The Hon'ble Division Bench vide the Judgment dated 02.04.2004 reported in 2004(2) Law Weekly 591 while setting aside a part of the Government order which directed the recovery from the teachers held that the past services however shall be counted for pension. The said order of the Hon'ble Division Bench was taken up by way of appeal to the Hon'ble Supreme Court in Civil Appeal No. 5012 of 2006 and the same was dismissed. Meanwhile the Government implemented the New Contributory Pension scheme for those who joined Government service on or after 01.04.2003 vide G.O.Ms.No.430 dated 06.08.2004. The secondary grade teachers who were appointed between the period from 11.07.1995 to 19.05.1998 and who were covered by G.O.Ms.No.155 dated 03.10.2002 filed writ petitions in W.P.Nos 26933 and 26934 of 2007, W.P. (MD) Nos. 10447 and 5174 of 2008, 4537 of 2009, 1375 of 2010, 12280 to 12282 of 2010 before this Hon'ble Court praying for direction to count their past services prior to completion of Child Psychology Training for the purpose of pensionary benefits. This Hon'ble Court in the said writ petitions held that the petitioners therein, were to be extended the pension scheme prevailing prior to 01.04.2003 and that they would not be covered by G.O.Ms.No.430 dated 06.08.2004. In pursuance of the said orders of the Hon'ble Court, the Government issued G.O.Ms.No.413 dated 04.11.2010 extending the Old Pension Scheme to the secondary grade teachers appointed between 11.07.1995 to 19.05.1998 and whose services were regularised as per G.O.Ms.No.155 dated 03.10.2002 while clarifying that the New Pension Scheme in G.O.Ms.No.430 dated 06.08.2004 would not apply to them. 8.It is the case of the respondents that they are similarly placed to the teachers covered under G.O.Ms.No.155 dated 03.10.2002 and even the Government had passed G.O.Ms.No.150 dated 02.07.2007 extending the benefit of G.O.Ms.No.155 dated 03.10.2002 to the respondents and 19 others and as much the respondents who were appointed as secondary grade teachers with effect from 07.12.1998, 05.03.2001 and 25.11.1998 were entitled to the benefit of counting of past services for pensionary benefits. In this regard the first respondent in W.A. No. 1574 and W.A. No. 1577 earlier filed writ petitions in W.P.No. 30137 and 30143 of 2010 and the Hon'ble Court vide order dated 29.12.2010 directed the appellants to consider the representation of the respondents and to pass appropriate orders extending the Old Pension Scheme as directed in the order. The respondents further relied on the Judgment of the Hon'ble Court passed in the case of Shri. Jayapal and Shri. Sampasivam, wherein the Hon'ble Court allowed the counting of past service from 26.02.1999 to 08.11.2007 for the purpose of pensionary benefits on par with the secondary grade teachers who were appointed prior to 01.04.2003. The Government preferred an appeal against the said order which was dismissed on the ground of limitation. Thereafter on threat of contempt G.O.Ms. 34 dated 15.02.2017 was passed extending the benefit of the Old Pension Scheme to the said two persons only, even though similar orders were passed in favour of the respondents also. The respondents therefore filed the present writ petitions claiming benefit of G.O.Ms.No.34 dated 15.02.2017. 9.The appellants filed counter affidavit disputing the entitlement of the respondents/writ petitioners to the relief claimed in the writ petition. According to the appellants, as the approval of appointment of the respondents was issued on 09.11.2007 the respondents were not entitled to the benefit of Old Pension Scheme. The appellants submitted that the counting of past service for the purpose of pension would take effect from the date of approval of regular appointment and not from the date of initial appointment. The appellants further relied on the Judgement of this Hon'ble Court dated 08.02.2017 in W.P.(MD).No. 2356 of 2011 and order dated 21.03.2018 in W.P. No. 74 of 2015 and 957 of 2016 in support of their case. 10.The learned Judge after hearing the arguments of the respective counsels and on perusal of the records found favour with the respondents. The appellants aggrieved by the order of the learned Single Judge have preferred the above appeal. 11.The factual narratives stated above are not denied. The pivotal issue raised in the factual matrix of the case is whether the respondents are entitled for pensionary benefits under the Old Pension Scheme or under the New Pension Scheme notified in G.O.Ms.No. 430 dated 06.08.2004. 12.The learned Government Advocate submitted that as the respondents appointments were approved only after the completion of the Child Psychology Training programme, the date of appointment should be reckoned from the date of the approval of the appointment dated 09.11.2007 and not from the date of initial appointment which is 07.12.1998, 05.03.2001 and 25.11.1998. The learned Government Advocate further submitted that the respondents would be covered by G.O.Ms.No. 430 dated 06.08.2004 under which the New Pension Scheme was introduced with effect from 01.04.2003. The learned Government Advocate submitted that as the respondents appointments were approved after 01.04.2003 they would be covered by the New Pension Scheme which is Contributory Pension Scheme and not under the Old Pension Scheme. The learned Government Advocate relied on the Judgment of this Hon'ble Court in W.P.(MD). 2356 of 2011 dated 08.02.2017 and the W.A.No. 74 and 957 of 2016 dated 21.03.2018 in support of his submissions. 13.Per contra, the counsel for the respondents submitted that the date for determining the entitlement to the Old Pension Scheme would be the date of initial appointment and not the date of approval of appointment as contended by the appellants. The learned counsel further submitted that, in view of the orders passed by this Hon'ble Court in their favour in W.P.No. 30137 of 2010 and 30143 of 2010 dated 29.12.2010, the appellants are bound to extend the benefit of Old Pension Scheme to them. The respondents counsel further submitted that when similarly placed Secondary Grade teachers were extended the benefit of the Old Pension Scheme vide G.O.Ms.No. 34 dated 15.02.2017, the failure to extend the same benefit to the respondents is discriminatory and violative of Article 14 and 21 of the Constitution of India. The learned counsel for the respondents therefore prayed that the writ appeal may be dismissed and the order of the learned Single Judge may be affirmed. 14.We have heard the learned counsel for both sides and we have perused the records. 15.The genesis of the issue relates back to the issuance of G.O.Ms. No.559 dated 11.07.1985, wherein the Government directed not to approve the appointment of higher qualified persons to the post of Secondary Grade teachers. The said Government order was challenged before this Hon'ble Court in W.A.Nos. 991 to 998 of 1998 and the Hon'ble Division Bench was pleased to uphold the G.O with a direction to the Government to consider the approval of appointments made between 11.07.1995 and 19.05.1998. In pursuance and in compliance of the above said Division Bench order the appellants issued G.O.Ms.No. 155 dated 03.10.2002 giving permission for approval for B.T teachers who were appointed as Secondary Grade teachers during the period from 11.07.1995 to 19.05.1998, subject to their undergoing one month Child Psychology Training. The teachers covered under G.O.Ms.No.155 dated 03.10.2002 on completion of Child Psychology Training were granted approval of appointment with effect from 02.06.2003 in the regular time scale of pay. The respondents as also 19 other secondary grade teachers who were appointed subsequent to the cut off date of 19.05.1998 were not covered by G.O.Ms.No. 155 dated 03.10.2002. A representation was given by the President of Tamil Nadu recognised aided School Managers Association requesting for extension of benefit of G.O.Ms. 155 dated 03.10.2002 to the teachers appointed till the order of the Hon'ble Division Bench dated 29.06.2001. The Government accepted the representation and issued G.O.Ms.No. 150 dated 02.07.2007 extending the benefits of G.O.Ms.No.155 dated 03.10.2002 to the 22 teachers who were appointed subsequent to the cut off date of 19.05.1998 and before the order of the Hon'ble Division Bench dated 29.06.2001. All the 22 teachers who were covered by G.O.Ms.No.150 dated 02.07.2007 completed their Child Psychology Training and thereafter their appointments were approved by the third appellant vide proceeding dated 05.06.2008 with effect from 09.11.2007. 16.The secondary grade teachers who were covered under G.O.Ms.No. 155 dated 03.10.2002 challenged certain provisions of the said G.O in W.A.Nos. 249, 282, 448, 452 of 2002 and 80 of 2004 before this Hon'ble Court. The Hon'ble Divison bench vide order dated 02.04.2004 was pleased to set aside para 7 of the G.O which directed the recovery from the teachers. The G.O was confirmed with respect to other aspects, except that the Government was directed to consider the past service of the teachers for the purpose of pensionary benefits. After the Judgement of the Hon'ble Division Bench, the Government passed G.O.Ms.No.430 dated 06.08.2004 introducing New Pension Scheme and the cut off date for New Pension Scheme was given as 01.04.2003. The teachers covered under GO.Ms.No. 155 dated 03.10.2002 filed writ petitions before this Hon'ble Court praying for a direction to count their past services prior to completion of Child Psychology Training for pensionary benefits. This Hon'ble Court in the said writ petitions ordered that the petitioners therein would be entitled to the pension scheme in force prior to 01.04.2003 and that they would not be governed by G.O.Ms.No. 430 dated 06.08.2004. The Government passed G.O.Ms.Ms.413 dated 04.11.2010 implementing the above said order of the Hon'ble Court. 17.One Mr.Jayapal and Mr.Sampasivam, secondary grade teachers whose appointments were approved on completion of training with effect from 09.11.2007 filed writ petitions in W.P.No.29163 and 29164 of 2010 seeking the benefit of the Old Pension Scheme by counting their service from 26.02.1999 to 08.11.2000 (i.e) their date of appointment. This Hon'ble Court passed a common order on 22.12.2010 ordering that they would be entitled to the pension scheme applicable to teachers prior to 01.04.2003 and they would not be governed by G.O.Ms.No.430 dated 06.08.2004. The appellants preferred an appeal before this Hon'ble Court against the said order and the same was dismissed on the ground of delay. Thereafter the appellants on threat of contempt passed G.O.Ms.No34 dated 15.02.2017 implementing the Old Pension Scheme to Mr.Jayapal and 18.The main ground on which the appellants sought to deny the respondents, the relief claimed by them was that their appointments were approved with effect from 09.11.2007 and therefore they would not be covered by the Old Pension Scheme, but would be covered only, under the New Pension Scheme introduced vide G.O.Ms.No.430 dated 06.08.2004. The appellants in this regard relied on two Judgments of this Hon'ble Court in W.P.(MD).No. 2356 of 2011 dated 08.02.2017 and W.A.No. 74 of 2015 and 957 of 2016 dated 21.03.2018 in support of their submissions. 19.We are not inclined to accept the submissions of the appellant. The Hon'ble Division Bench of this Hon'ble Court in V.Vasanthi Vs. State of Tamil Nadu 2019(4) CTC 865 held that the relevant date for claiming Old Pension Scheme is the date of actual appointment and not the date of approval of appointment. The relevant para from the Hon'ble Division Bench Judgment in Vasanthi's case is extracted hereunder: “A careful perusal of the above observation made in the said Pallivasal Primary School case would show that even though approval of the Appointment of the Teacher, who has undergone Child Psychology Training, will take effect only on completion of such training the past service rendered by such Teacher i.e., service rendered before the completion of such training, is bound to be counted for Pension. In other words, the service period of such teacher commences from the date of the Appointment and not from the date of approval, even though the Monetary benefits start to accrue only from the date of completion of the training. Therefore, for all practical purposes, the date of Appointment is not altered and remain to be the same. Therefore, the date of Approval of Appointment of the Writ Petitioner cannot be construed as the date relevant for considering the applicability of the Pension Scheme and on the other hand, it is the original date on which the Writ Petitioner got appointed that matters for considering as to whether the Writ Petitioner is governed under the Old Pension Scheme or not. At this juncture, it is relevant to note that in G.O.Ms.No.259, Finance (Pension) Department, dated 06.08.2003, a Proviso to Rule 2 of the Tamil Nadu Pension Rule 1978, was introduced by way of amendment, wherein and whereby, it is contemplated that the Tamil Nadu Pension Rules, 1978 shall not apply to Government Servants “appointed” on or after 1st April 2003 to services and posts. The word “appointed” referred in the said Proviso cannot be construed to mean approval of such Appointment. Accordingly, the Writ Appeal is allowed and the Order of the Writ Court is set aside. Consequently, the Writ Petition filed by the Petitioner/Appellant is allowed and the Respondents are directed to permit the Petitioner to continue under the Old Pension Scheme, namely, Teacher Provident Fund The said Judgment of the Hon'ble Division Bench squarely covers the issue raised before us. 20.We are of the view that the Judgment relied on by the appellants are not applicable to the facts of the present case. The Judgment passed in W.P.2356 of 2011 dated 08.02.2017 was by a learned Single Judge of this Hon'ble Court and the same was also long prior to the Division Bench Judgment in Vasanthi's case. As regards the other Judgment relied by the appellants dated 21.03.2018 we find that the issue therein was with reference to disbursement of salary from the date of original appointment and the Hon'ble Division Bench in the light of the explicit condition contained in G.O.Ms.No.155 dated 03.10.2002 held that the disbursement of salary from the date of original appointment order could not be sustained as the G.O specifically stated that the salary would be paid from the date of completion of training, after approving the said appointment. The Hon'ble Division Bench Judgment is with reference to disbursement of salary and therefore has no relevance to the present issue. 21.We are therefore of the view that the issue raised in this writ appeal is covered by the Judgment of the Hon'ble Division Bench in V.Vasanthi's case. The contention of the respondent that the relevant date would be the date of approval of appointment cannot be countenanced and hence, the same stands rejected. 22.It is pertinent to note here that two of the respondents in W.A.No.1574 and 1577 earlier filed writ petitions in W.P.No. 30137 of 2010 and 30143 of 2010 wherein the learned Single Judge of this Hon'ble Court was pleased to pass the “In view of the said submission, it is ordered that the petitioners are to be extended the Pension Scheme applicable to the Teachers appointed prior to 01.04.2003 and they are not governed under G.O.Ms.No.430 Finance(Pension) Department date 06.08.2004. If the pensionary contributions if any, payable by the petitioners as per Tamil Nadu Pension Rules 1978 are not paid till date by the petitioners, it is open to the respondents to claim the same from the petitioners. The writ petitions are ordered in the above terms. Consequently, connected Miscellaneous Petitions are closed. No costs. In view of the same, the respondents 1 to 3 are directed to consider the representation of the petitioner dated 24.12.2010 in the light of the above said paragraphs and pass appropriate order extending the Pension Scheme not as per G.O.Ms.No.430 Finance(Pension) Department dated 06.08.2004 but in terms of paragraph No.9 of the above said order and such order shall be passed within a period of eight weeks from the date of receipt of a copy of this order” Inspite of the said orders, the appellants did not consider the respondents claim. What is more appalling is that the second appellant in his proceedings dated 21.03.2016 recommended that the benefit of G.O.Ms.No.413 can be extended to the 22 Secondary Grade teachers covered under G.O.Ms.No.150 dated 02.07.2007 inspite of such recommendation the appellants restricted G.O.Ms.No.34 dated 15.02.2017 to the said two persons thereby driving the respondents to this 2 nd round of litigation. In the light of the above facts we find absolutely no infirmity in the orders by the learned Single Judge and hence the same is confirmed. In fine the Writ Appeals are dismissed. Four months time is granted for the appellants to extend their benefits to the writ petitioners, if not already extended. PRE-DELIVERY JUDGMENT IN W.A.Nos. 1573, 1574 and 1577 of 2021 C.M.P. Nos.9919, 9922, 9925, 9937 and 9939 of 2021
The Madras High Court recently said that when calculating retirement money for teachers, the important date is when they started working, not when their job was officially approved. Justices S. Vaidyanathan and N. Mala used a past ruling from the V.Vasanthi versus State of Tamil Nadu case. In that similar situation, the court had decided that teachers' work time starts from the day they were hired, not the day their job was approved. This was true even though they only started getting paid after finishing their training. So, the time they worked before finishing training also had to be counted towards their retirement money. Because of the ruling in Vasanthi's case, the court stated the following: "Therefore, we believe that the problem in this legal challenge is already settled by the respected court's decision in V.Vasanthi's case. The government's argument that the important date should be when the job was officially approved cannot be accepted and is therefore denied." **Background** The government of Tamil Nadu issued an order (G.O.Ms.No.559) on July 11, 1995. This order stopped schools from hiring college-educated teachers for certain lower-level teaching jobs (secondary grade vacancies). Some schools hired these teachers anyway, going against this order. The authorities (who are now appealing the decision) did not approve these jobs. The affected teachers went to the High Court. The High Court said the government order was valid but also ordered that the jobs made between July 11, 1995, and May 19, 1998, should be approved. Following this order, the Government issued another order (G.O.Ms.No. 155) on October 3, 2002. This order allowed for the approval of B.T. (Bachelor of Teaching) teachers who had been hired for lower-level teaching jobs between July 11, 1995, and May 19, 1998. However, they first had to complete one month of training in child psychology. These teachers only had their jobs officially approved after they finished this one-month training. At the same time, the head of the Tamil Nadu Aided School Managers Association asked if the benefits of the October 3, 2002 order (G.O.Ms. 155) could also be given to teachers hired up until the High Court made its ruling. The government agreed to this request and issued a new order (G.O.Ms.No. 150). This extended the benefits of the earlier order to 22 teachers who were hired after the original deadline but before the High Court's ruling. The teachers who were covered by G.O.Ms. 155 disputed a part of that order regarding recovering money from them. They took this to the High Court, and their challenge was successful. A single judge ordered the government to count these teachers' previous work time for their retirement money. Following this court decision, the Government issued G.O.Ms.No.430 on August 6, 2004, which started a New Pension Scheme. The effective date for this new scheme was April 1, 2003. The teachers covered by G.O.Ms. 155 filed legal requests asking the court to order that their work time before they finished their Child Psychology Training should be counted for their retirement money. The court ruled in favor of the teachers, and the Government then issued G.O.Ms.No.413, carrying out the court's order. Two other teachers, whose jobs were approved after they finished training on November 9, 2007, also went to court. They wanted the benefits of the old retirement plan. On December 22, 2010, the court issued a single ruling. It stated that these teachers should receive the retirement plan benefits that applied to teachers before April 1, 2003. This meant they would not have to follow the rules of the New Pension Scheme introduced by G.O.Ms.No.430 on August 6, 2004. The main reason the authorities (who are appealing this case) were arguing against this was that these teachers' jobs were approved starting from November 9, 2007. Because of this, the authorities argued, these teachers should not be included in the Old Pension Scheme. Instead, they should only be included in the New Pension Scheme that came out with G.O.Ms.No.430 on August 6, 2004. However, the court did not agree with this argument. Seeing nothing wrong with the single judge's order, the court upheld that decision. It then ordered the government (the appellants) to give the retirement benefits to the teachers (the respondents) within four months.
and C.M.P. Nos.9919, 9922, 9925, 9937 and 9939 of 2021 1.The State of Tamil Nadu, ...Appellants in W.A.Nos.1573,1574 and 1577 of 2021 ...Appellants in W.A.Nos.1574 and 1577 of 2021 Common Prayer: The Writ Appeal is filed under Clause 15 of Letters Patent praying to set aside the common order dated 18.12.2020 passed in W.P.Nos.8916, 9555 and 9559 of 2019. [Order of the Court was made by S.VAIDYANATHAN,J. and N.MALA,J.] The issues raised in all the writ appeals are common. Therefore all the three writ appeals are taken up together and disposed by this common order. The individual facts of each case is dealt with separately as there are slight variations in the service particulars of the respondent/writ petitioners. 2. Brief Facts in W.A. No. 1573 of 2021: The respondent was appointed as secondary grade teacher on 07.12.1998 in the second respondent school which is an aided elementary school governed by Tamil Nadu Private School Regulation Act. The respondent was appointed against sanctioned vacancy in view of the resignation of the earlier incumbent on 31.07.1997. The proposal for approval of the respondents appointment was rejected by the District Elementary Educational officer, the 3rd appellant herein, on the ground that the respondents appointment was in violation of G.O.Ms.No.559 dated 11.07.1995 which prohibited the appointment of higher qualified persons to The respondent was appointed as a secondary grade teacher on 05.03.2001 in the second respondent school which is an aided elementary school governed by Tamil Nadu Private School Regulation Act. The respondent was appointed against the sanctioned vacancy which arose in view of the resignation of the earlier incumbent on 05.04.1998. Soon after the appointment of the respondent a proposal was sent for approval of her appointment to the third appellant for approval. The proposal was rejected by the 3rd Appellant on the ground that her appointment was in violation of G.O.Ms.No.559 dated 11.07.1995 which prohibited the appointment of higher qualified persons to the post of secondary grade teacher. 4. Brief Facts in W.A. No. 1577 of 2021: The respondent was appointed as a secondary grade teacher on 25.11.1998 in the second respondent school which is an aided elementary school governed by Tamil Nadu Private School Regulation Act. The respondent was appointed against the sanctioned vacancy which arose in view of the resignation of the earlier incumbent on 03.10.1996. Soon after the appointment of the respondent a proposal was sent for approval of her appointment to the third appellant. The proposal was rejected by the 3rd appellant on the ground that her appointment was in violation of G.O.Ms.No.559 dated 11.07.1995 which prohibited the appointment of higher qualified persons to the post of secondary grade teacher. 5. The further facts apart from the above brief facts are as follows: The Government of Tamil Nadu passed G.O.Ms.No.559 School Education Department dated 11.07.1995 prohibiting the appointment of graduate teachers in secondary grade vacancy. The schools in question appointed the respondents on the dates mentioned supra, which was against G.O.Ms. 559 dated 11.07.1995. The appellants therefore did not approve the appointment of the respondents. Teachers who were affected by Go.Ms.No.559 dated 11.07.1995 approached the Hon'ble Court in W.P. No. 6388 of 1993 and W.A Nos. 991 to 998 of 1998 and the Hon'ble Division Bench by order dated 29.06.2001 upheld the validity of the said G.O with a direction to approve the appointments made from 11.07.1995 to 19.05.1998. Consequent to the judgment of this Hon'ble Court the Government passed G.O.Ms.No.155 School Education Department dated 03.10.2002 with a direction to approve the appointment up to 19.05.1998, subject to the completion of one month Child Psychology Training by the said teachers. In pursuance to G.O.Ms.No. 155 dated 03.10.2002 the teachers covered under the said G.O underwent one month Child Psychology Training and on completion of the training their appointments were approved in the regular time scale of pay in the year 2003. 6.The respondents and 19 similarly placed teachers who were not considered for extension of benefits under G.O.Ms.No.155 dated 03.10.2002 on the ground that their appointments were beyond the cut off date of 19.05.1998 through an association which espoused their cause submitted a memorandum to the Government seeking extension of benefit of G.O.Ms.No.155 dated 03.10.2002 in respect of the teachers who were appointed upto the order of the Hon'ble Division Bench Judgment dated 29.06.2001. The Government considered the memorandum favourably and issued G.O.Ms.No.150 dated 02.07.2007 extending the benefits of G.O.Ms.No.155 dated 03.10.2002 to the respondents and 19 similarly placed teachers. In pursuance of G.O.Ms.No.150 of 02.07.2007 the Government approved the appointments of the teachers covered under the said G.O. on completion of Child Psychology Training vide proceeding dated 04.12.2007 with effect from 7.As G.O.Ms.No.155 dated 03.10.2002 not only covered the approval of the secondary grade teachers with higher qualification but also contained certain provisions which contemplated recovery of payments from the teachers the aggrieved teachers filed several cases in W.A.Nos. 249, 282 and 448 to 452 of 2002 and 80 of 2004 and W.P.No. 42067 batch. The Hon'ble Division Bench vide the Judgment dated 02.04.2004 reported in 2004(2) Law Weekly 591 while setting aside a part of the Government order which directed the recovery from the teachers held that the past services however shall be counted for pension. The said order of the Hon'ble Division Bench was taken up by way of appeal to the Hon'ble Supreme Court in Civil Appeal No. 5012 of 2006 and the same was dismissed. Meanwhile the Government implemented the New Contributory Pension scheme for those who joined Government service on or after 01.04.2003 vide G.O.Ms.No.430 dated 06.08.2004. The secondary grade teachers who were appointed between the period from 11.07.1995 to 19.05.1998 and who were covered by G.O.Ms.No.155 dated 03.10.2002 filed writ petitions in W.P.Nos 26933 and 26934 of 2007, W.P. (MD) Nos. 10447 and 5174 of 2008, 4537 of 2009, 1375 of 2010, 12280 to 12282 of 2010 before this Hon'ble Court praying for direction to count their past services prior to completion of Child Psychology Training for the purpose of pensionary benefits. This Hon'ble Court in the said writ petitions held that the petitioners therein, were to be extended the pension scheme prevailing prior to 01.04.2003 and that they would not be covered by G.O.Ms.No.430 dated 06.08.2004. In pursuance of the said orders of the Hon'ble Court, the Government issued G.O.Ms.No.413 dated 04.11.2010 extending the Old Pension Scheme to the secondary grade teachers appointed between 11.07.1995 to 19.05.1998 and whose services were regularised as per G.O.Ms.No.155 dated 03.10.2002 while clarifying that the New Pension Scheme in G.O.Ms.No.430 dated 06.08.2004 would not apply to them. 8.It is the case of the respondents that they are similarly placed to the teachers covered under G.O.Ms.No.155 dated 03.10.2002 and even the Government had passed G.O.Ms.No.150 dated 02.07.2007 extending the benefit of G.O.Ms.No.155 dated 03.10.2002 to the respondents and 19 others and as much the respondents who were appointed as secondary grade teachers with effect from 07.12.1998, 05.03.2001 and 25.11.1998 were entitled to the benefit of counting of past services for pensionary benefits. In this regard the first respondent in W.A. No. 1574 and W.A. No. 1577 earlier filed writ petitions in W.P.No. 30137 and 30143 of 2010 and the Hon'ble Court vide order dated 29.12.2010 directed the appellants to consider the representation of the respondents and to pass appropriate orders extending the Old Pension Scheme as directed in the order. The respondents further relied on the Judgment of the Hon'ble Court passed in the case of Shri. Jayapal and Shri. Sampasivam, wherein the Hon'ble Court allowed the counting of past service from 26.02.1999 to 08.11.2007 for the purpose of pensionary benefits on par with the secondary grade teachers who were appointed prior to 01.04.2003. The Government preferred an appeal against the said order which was dismissed on the ground of limitation. Thereafter on threat of contempt G.O.Ms. 34 dated 15.02.2017 was passed extending the benefit of the Old Pension Scheme to the said two persons only, even though similar orders were passed in favour of the respondents also. The respondents therefore filed the present writ petitions claiming benefit of G.O.Ms.No.34 dated 15.02.2017. 9.The appellants filed counter affidavit disputing the entitlement of the respondents/writ petitioners to the relief claimed in the writ petition. According to the appellants, as the approval of appointment of the respondents was issued on 09.11.2007 the respondents were not entitled to the benefit of Old Pension Scheme. The appellants submitted that the counting of past service for the purpose of pension would take effect from the date of approval of regular appointment and not from the date of initial appointment. The appellants further relied on the Judgement of this Hon'ble Court dated 08.02.2017 in W.P.(MD).No. 2356 of 2011 and order dated 21.03.2018 in W.P. No. 74 of 2015 and 957 of 2016 in support of their case. 10.The learned Judge after hearing the arguments of the respective counsels and on perusal of the records found favour with the respondents. The appellants aggrieved by the order of the learned Single Judge have preferred the above appeal. 11.The factual narratives stated above are not denied. The pivotal issue raised in the factual matrix of the case is whether the respondents are entitled for pensionary benefits under the Old Pension Scheme or under the New Pension Scheme notified in G.O.Ms.No. 430 dated 06.08.2004. 12.The learned Government Advocate submitted that as the respondents appointments were approved only after the completion of the Child Psychology Training programme, the date of appointment should be reckoned from the date of the approval of the appointment dated 09.11.2007 and not from the date of initial appointment which is 07.12.1998, 05.03.2001 and 25.11.1998. The learned Government Advocate further submitted that the respondents would be covered by G.O.Ms.No. 430 dated 06.08.2004 under which the New Pension Scheme was introduced with effect from 01.04.2003. The learned Government Advocate submitted that as the respondents appointments were approved after 01.04.2003 they would be covered by the New Pension Scheme which is Contributory Pension Scheme and not under the Old Pension Scheme. The learned Government Advocate relied on the Judgment of this Hon'ble Court in W.P.(MD). 2356 of 2011 dated 08.02.2017 and the W.A.No. 74 and 957 of 2016 dated 21.03.2018 in support of his submissions. 13.Per contra, the counsel for the respondents submitted that the date for determining the entitlement to the Old Pension Scheme would be the date of initial appointment and not the date of approval of appointment as contended by the appellants. The learned counsel further submitted that, in view of the orders passed by this Hon'ble Court in their favour in W.P.No. 30137 of 2010 and 30143 of 2010 dated 29.12.2010, the appellants are bound to extend the benefit of Old Pension Scheme to them. The respondents counsel further submitted that when similarly placed Secondary Grade teachers were extended the benefit of the Old Pension Scheme vide G.O.Ms.No. 34 dated 15.02.2017, the failure to extend the same benefit to the respondents is discriminatory and violative of Article 14 and 21 of the Constitution of India. The learned counsel for the respondents therefore prayed that the writ appeal may be dismissed and the order of the learned Single Judge may be affirmed. 14.We have heard the learned counsel for both sides and we have perused the records. 15.The genesis of the issue relates back to the issuance of G.O.Ms. No.559 dated 11.07.1985, wherein the Government directed not to approve the appointment of higher qualified persons to the post of Secondary Grade teachers. The said Government order was challenged before this Hon'ble Court in W.A.Nos. 991 to 998 of 1998 and the Hon'ble Division Bench was pleased to uphold the G.O with a direction to the Government to consider the approval of appointments made between 11.07.1995 and 19.05.1998. In pursuance and in compliance of the above said Division Bench order the appellants issued G.O.Ms.No. 155 dated 03.10.2002 giving permission for approval for B.T teachers who were appointed as Secondary Grade teachers during the period from 11.07.1995 to 19.05.1998, subject to their undergoing one month Child Psychology Training. The teachers covered under G.O.Ms.No.155 dated 03.10.2002 on completion of Child Psychology Training were granted approval of appointment with effect from 02.06.2003 in the regular time scale of pay. The respondents as also 19 other secondary grade teachers who were appointed subsequent to the cut off date of 19.05.1998 were not covered by G.O.Ms.No. 155 dated 03.10.2002. A representation was given by the President of Tamil Nadu recognised aided School Managers Association requesting for extension of benefit of G.O.Ms. 155 dated 03.10.2002 to the teachers appointed till the order of the Hon'ble Division Bench dated 29.06.2001. The Government accepted the representation and issued G.O.Ms.No. 150 dated 02.07.2007 extending the benefits of G.O.Ms.No.155 dated 03.10.2002 to the 22 teachers who were appointed subsequent to the cut off date of 19.05.1998 and before the order of the Hon'ble Division Bench dated 29.06.2001. All the 22 teachers who were covered by G.O.Ms.No.150 dated 02.07.2007 completed their Child Psychology Training and thereafter their appointments were approved by the third appellant vide proceeding dated 05.06.2008 with effect from 09.11.2007. 16.The secondary grade teachers who were covered under G.O.Ms.No. 155 dated 03.10.2002 challenged certain provisions of the said G.O in W.A.Nos. 249, 282, 448, 452 of 2002 and 80 of 2004 before this Hon'ble Court. The Hon'ble Divison bench vide order dated 02.04.2004 was pleased to set aside para 7 of the G.O which directed the recovery from the teachers. The G.O was confirmed with respect to other aspects, except that the Government was directed to consider the past service of the teachers for the purpose of pensionary benefits. After the Judgement of the Hon'ble Division Bench, the Government passed G.O.Ms.No.430 dated 06.08.2004 introducing New Pension Scheme and the cut off date for New Pension Scheme was given as 01.04.2003. The teachers covered under GO.Ms.No. 155 dated 03.10.2002 filed writ petitions before this Hon'ble Court praying for a direction to count their past services prior to completion of Child Psychology Training for pensionary benefits. This Hon'ble Court in the said writ petitions ordered that the petitioners therein would be entitled to the pension scheme in force prior to 01.04.2003 and that they would not be governed by G.O.Ms.No. 430 dated 06.08.2004. The Government passed G.O.Ms.Ms.413 dated 04.11.2010 implementing the above said order of the Hon'ble Court. 17.One Mr.Jayapal and Mr.Sampasivam, secondary grade teachers whose appointments were approved on completion of training with effect from 09.11.2007 filed writ petitions in W.P.No.29163 and 29164 of 2010 seeking the benefit of the Old Pension Scheme by counting their service from 26.02.1999 to 08.11.2000 (i.e) their date of appointment. This Hon'ble Court passed a common order on 22.12.2010 ordering that they would be entitled to the pension scheme applicable to teachers prior to 01.04.2003 and they would not be governed by G.O.Ms.No.430 dated 06.08.2004. The appellants preferred an appeal before this Hon'ble Court against the said order and the same was dismissed on the ground of delay. Thereafter the appellants on threat of contempt passed G.O.Ms.No34 dated 15.02.2017 implementing the Old Pension Scheme to Mr.Jayapal and 18.The main ground on which the appellants sought to deny the respondents, the relief claimed by them was that their appointments were approved with effect from 09.11.2007 and therefore they would not be covered by the Old Pension Scheme, but would be covered only, under the New Pension Scheme introduced vide G.O.Ms.No.430 dated 06.08.2004. The appellants in this regard relied on two Judgments of this Hon'ble Court in W.P.(MD).No. 2356 of 2011 dated 08.02.2017 and W.A.No. 74 of 2015 and 957 of 2016 dated 21.03.2018 in support of their submissions. 19.We are not inclined to accept the submissions of the appellant. The Hon'ble Division Bench of this Hon'ble Court in V.Vasanthi Vs. State of Tamil Nadu 2019(4) CTC 865 held that the relevant date for claiming Old Pension Scheme is the date of actual appointment and not the date of approval of appointment. The relevant para from the Hon'ble Division Bench Judgment in Vasanthi's case is extracted hereunder: “A careful perusal of the above observation made in the said Pallivasal Primary School case would show that even though approval of the Appointment of the Teacher, who has undergone Child Psychology Training, will take effect only on completion of such training the past service rendered by such Teacher i.e., service rendered before the completion of such training, is bound to be counted for Pension. In other words, the service period of such teacher commences from the date of the Appointment and not from the date of approval, even though the Monetary benefits start to accrue only from the date of completion of the training. Therefore, for all practical purposes, the date of Appointment is not altered and remain to be the same. Therefore, the date of Approval of Appointment of the Writ Petitioner cannot be construed as the date relevant for considering the applicability of the Pension Scheme and on the other hand, it is the original date on which the Writ Petitioner got appointed that matters for considering as to whether the Writ Petitioner is governed under the Old Pension Scheme or not. At this juncture, it is relevant to note that in G.O.Ms.No.259, Finance (Pension) Department, dated 06.08.2003, a Proviso to Rule 2 of the Tamil Nadu Pension Rule 1978, was introduced by way of amendment, wherein and whereby, it is contemplated that the Tamil Nadu Pension Rules, 1978 shall not apply to Government Servants “appointed” on or after 1st April 2003 to services and posts. The word “appointed” referred in the said Proviso cannot be construed to mean approval of such Appointment. Accordingly, the Writ Appeal is allowed and the Order of the Writ Court is set aside. Consequently, the Writ Petition filed by the Petitioner/Appellant is allowed and the Respondents are directed to permit the Petitioner to continue under the Old Pension Scheme, namely, Teacher Provident Fund The said Judgment of the Hon'ble Division Bench squarely covers the issue raised before us. 20.We are of the view that the Judgment relied on by the appellants are not applicable to the facts of the present case. The Judgment passed in W.P.2356 of 2011 dated 08.02.2017 was by a learned Single Judge of this Hon'ble Court and the same was also long prior to the Division Bench Judgment in Vasanthi's case. As regards the other Judgment relied by the appellants dated 21.03.2018 we find that the issue therein was with reference to disbursement of salary from the date of original appointment and the Hon'ble Division Bench in the light of the explicit condition contained in G.O.Ms.No.155 dated 03.10.2002 held that the disbursement of salary from the date of original appointment order could not be sustained as the G.O specifically stated that the salary would be paid from the date of completion of training, after approving the said appointment. The Hon'ble Division Bench Judgment is with reference to disbursement of salary and therefore has no relevance to the present issue. 21.We are therefore of the view that the issue raised in this writ appeal is covered by the Judgment of the Hon'ble Division Bench in V.Vasanthi's case. The contention of the respondent that the relevant date would be the date of approval of appointment cannot be countenanced and hence, the same stands rejected. 22.It is pertinent to note here that two of the respondents in W.A.No.1574 and 1577 earlier filed writ petitions in W.P.No. 30137 of 2010 and 30143 of 2010 wherein the learned Single Judge of this Hon'ble Court was pleased to pass the “In view of the said submission, it is ordered that the petitioners are to be extended the Pension Scheme applicable to the Teachers appointed prior to 01.04.2003 and they are not governed under G.O.Ms.No.430 Finance(Pension) Department date 06.08.2004. If the pensionary contributions if any, payable by the petitioners as per Tamil Nadu Pension Rules 1978 are not paid till date by the petitioners, it is open to the respondents to claim the same from the petitioners. The writ petitions are ordered in the above terms. Consequently, connected Miscellaneous Petitions are closed. No costs. In view of the same, the respondents 1 to 3 are directed to consider the representation of the petitioner dated 24.12.2010 in the light of the above said paragraphs and pass appropriate order extending the Pension Scheme not as per G.O.Ms.No.430 Finance(Pension) Department dated 06.08.2004 but in terms of paragraph No.9 of the above said order and such order shall be passed within a period of eight weeks from the date of receipt of a copy of this order” Inspite of the said orders, the appellants did not consider the respondents claim. What is more appalling is that the second appellant in his proceedings dated 21.03.2016 recommended that the benefit of G.O.Ms.No.413 can be extended to the 22 Secondary Grade teachers covered under G.O.Ms.No.150 dated 02.07.2007 inspite of such recommendation the appellants restricted G.O.Ms.No.34 dated 15.02.2017 to the said two persons thereby driving the respondents to this 2 nd round of litigation. In the light of the above facts we find absolutely no infirmity in the orders by the learned Single Judge and hence the same is confirmed. In fine the Writ Appeals are dismissed. Four months time is granted for the appellants to extend their benefits to the writ petitioners, if not already extended. PRE-DELIVERY JUDGMENT IN W.A.Nos. 1573, 1574 and 1577 of 2021 C.M.P. Nos.9919, 9922, 9925, 9937 and 9939 of 2021
The Madras High Court recently said that when calculating retirement money for teachers, the important date is when they started working, not when their job was officially approved. Justices S. Vaidyanathan and N. Mala used a past ruling from the V.Vasanthi versus State of Tamil Nadu case. In that similar situation, the court had decided that teachers' work time starts from the day they were hired, not the day their job was approved. This was true even though they only started getting paid after finishing their training. So, the time they worked before finishing training also had to be counted towards their retirement money. Because of the ruling in Vasanthi's case, the court stated the following: "Therefore, we believe that the problem in this legal challenge is already settled by the respected court's decision in V.Vasanthi's case. The government's argument that the important date should be when the job was officially approved cannot be accepted and is therefore denied." **Background** The government of Tamil Nadu issued an order (G.O.Ms.No.559) on July 11, 1995. This order stopped schools from hiring college-educated teachers for certain lower-level teaching jobs (secondary grade vacancies). Some schools hired these teachers anyway, going against this order. The authorities (who are now appealing the decision) did not approve these jobs. The affected teachers went to the High Court. The High Court said the government order was valid but also ordered that the jobs made between July 11, 1995, and May 19, 1998, should be approved. Following this order, the Government issued another order (G.O.Ms.No. 155) on October 3, 2002. This order allowed for the approval of B.T. (Bachelor of Teaching) teachers who had been hired for lower-level teaching jobs between July 11, 1995, and May 19, 1998. However, they first had to complete one month of training in child psychology. These teachers only had their jobs officially approved after they finished this one-month training. At the same time, the head of the Tamil Nadu Aided School Managers Association asked if the benefits of the October 3, 2002 order (G.O.Ms. 155) could also be given to teachers hired up until the High Court made its ruling. The government agreed to this request and issued a new order (G.O.Ms.No. 150). This extended the benefits of the earlier order to 22 teachers who were hired after the original deadline but before the High Court's ruling. The teachers who were covered by G.O.Ms. 155 disputed a part of that order regarding recovering money from them. They took this to the High Court, and their challenge was successful. A single judge ordered the government to count these teachers' previous work time for their retirement money. Following this court decision, the Government issued G.O.Ms.No.430 on August 6, 2004, which started a New Pension Scheme. The effective date for this new scheme was April 1, 2003. The teachers covered by G.O.Ms. 155 filed legal requests asking the court to order that their work time before they finished their Child Psychology Training should be counted for their retirement money. The court ruled in favor of the teachers, and the Government then issued G.O.Ms.No.413, carrying out the court's order. Two other teachers, whose jobs were approved after they finished training on November 9, 2007, also went to court. They wanted the benefits of the old retirement plan. On December 22, 2010, the court issued a single ruling. It stated that these teachers should receive the retirement plan benefits that applied to teachers before April 1, 2003. This meant they would not have to follow the rules of the New Pension Scheme introduced by G.O.Ms.No.430 on August 6, 2004. The main reason the authorities (who are appealing this case) were arguing against this was that these teachers' jobs were approved starting from November 9, 2007. Because of this, the authorities argued, these teachers should not be included in the Old Pension Scheme. Instead, they should only be included in the New Pension Scheme that came out with G.O.Ms.No.430 on August 6, 2004. However, the court did not agree with this argument. Seeing nothing wrong with the single judge's order, the court upheld that decision. It then ordered the government (the appellants) to give the retirement benefits to the teachers (the respondents) within four months.
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2. This appeal challenges the judgment and order dated 29.9.2021 passed by the High Court of Karnataka at Bengaluru, dismissing Writ Petition No. 53944/2016 (GM-Res) preferred by the appellant herein. Said writ petition had prayed, inter alia, for following reliefs: - (A) “Issue appropriate writs, orders or directions Digitally signed by directing the Respondents to produce mercy files Reason: pertaining to the Petitioner, all the relevant papers and correspondence pertaining to the Petitioner’s mercy petition, for the perusal of the Court since the Petitioner has been able to show a grave, and unexceptionable delay in such processes as undertaken by the Respondents. (B) Issue appropriate writs, orders or directions directing production of medical file of the Petitioner from prison from the date of his arrest. (C) Issue appropriate writs, orders or directions and in particular a writ of Declaration, declaring that the execution of the sentence of death on the Petitioner (as communicated through letter dated 15.05.2013 - F.No.14/1/2011-Judicial Cell, Annexure N hereto) pursuant to the rejection of his mercy petition by the office of the Hon’ble President of India is unconstitutional and bad in law. (D) Issue appropriate writs, orders or directions commuting the death sentence of the Petitioner to imprisonment for life. (E) Declare that the decision of the office of the Hon’ble President of India rejecting the mercy petition filed by the Petitioner is illegal, void and unenforceable; (F) Declare that the decision of the office of the Hon’ble Governor of Karnataka rejecting the mercy petition filed by the Petitioner is illegal, void and (G) Quash and set aside the order of President of India rejecting the mercy petition filed by the Petitioner; (H) Quash and set aside the order of the Governor of Karnataka rejecting the mercy petition filed by the (I) Grant inspection of the documents mentioned in (A) and (B) to the Petitioner; (J) Issue any such other writs, orders and directions as this Hon’ble Court deems fit in the facts and circumstances of the case in the interest of justice and equity. 3. The basic facts leading to the filing of said Writ Petition are (a) One Jayashri, wife of Maradi Subbaiah was found raped and murdered in her home on 28.02.1998, which led to the registration of Crime No. 108/1998 with Division, Bengaluru City. The appellant was arrested in connection with said crime on 2.3.1998 and has been in custody since then. After due investigation, the appellant was tried in Sessions Case No. 725/1999 on the file of Sessions Judge, Fast Track Court-VII, Bengaluru for having committed offences punishable under Sections 302, 376 and 392 of the Indian Penal (b) By its judgment dated 26.10.2006, the trial Court convicted the appellant for the aforesaid offences and by order dated 27.10.2006, awarded punishment of death sentence, subject to confirmation by the High Court. The appellant was immediately transferred to Belgaum Central Prison and according to the appellant, he was kept in solitary confinement. (c) Case for confirmation of death sentence was registered as Criminal Reference No. 3/2006 before the High Court. The appellant also filed Criminal Appeal No. 2408/2006 challenging his conviction. The matter was heard by a Bench of two Judges, which confirmed the order of conviction, but disagreed on the sentence to be imposed. While Mr. Justice V.G. Sabhahit confirmed the award of death sentence, Mr. Justice R.B. Naik commuted the death sentence to life imprisonment. (d) The matter was therefore referred to the third Judge i.e., Mr. Justice S.R. Bannurmath on the issue of sentence, who affirmed the award of death sentence by his judgment dated 18.2.2009. (e) The matter was carried further by the appellant by filing Criminal Appeal Nos. 285-286/2011 before this Court, which were dismissed by this Court vide order dated 1.2.20112, affirming the appellant’s conviction and sentence of death imposed upon him. B.A. Umesh v. High Court of Karnataka, (2011) 3 SCC 85. (f) According to the procedure governing petitions for mercy in death sentence cases, a death convict can prefer a petition for mercy within seven (7) days after the dismissal of his appeal by this Court or rejection of application for special leave to appeal. The relevant instructions in that behalf read as under: - “I. A convict under sentence of death shall be allowed, if he has not already submitted a petition for mercy, for the preparation and submission of a petition for mercy, seven days after, and exclusive of, the date on which the Superintendent of Jail informs him of the dismissal by the Supreme Court of his appeal or of his application for special leave to appeal to the Supreme Court. Provided that in cases where no appeal to the Supreme Court, has been preferred or no application for special leave to appeal to the Supreme Court has been lodged, the said period of seven days shall be computed from the date next after the date on which the period allowed for an appeal to the Supreme Court or for lodging an application for special leave to appeal to the Supreme Court expires. (g) Having been informed about his right to file a mercy petition as per procedure, the appellant preferred a petition seeking mercy on 8.2.2011, i.e., within seven days. The appellant also preferred Review Petition against the decision dated 1.2.2011 passed by this Court. Around the same time, Writ Petition (Crl.) No. 52/2011 was preferred by the appellant in this Court praying, inter alia, for the relief of open Court hearing in review petition. In said writ petition, this Court by order dated 9.3.2011, directed stay of execution of death sentence. The Review Petition filed by the appellant was dismissed by circulation by this Court vide its order dated 7.9.2011. (h) Mercy petition preferred by the appellant was rejected by the Hon’ble President on 12.5.2013. An intimation in that behalf was sent vide letter dated 15.5.2013 to the appellant. (i) Writ Petition (Crl.) No. 52/2011 preferred by the appellant was decided alongwith Writ Petition (Crl.) No. 77/2014 (Mohd. Arif @ Ashfaq vs. Registrar General, Supreme Court of India & Ors.) by a Constitution Bench of this Court vide judgment dated 2.9.20143. It was held by majority that review petitions arising out of award of death sentence be heard in open Court by a Bench of three Judges of this Court. (j) Consequently, the Review Petition which was rejected earlier on 7.9.2011, was listed for re-hearing before a Bench of three Judges of this Court, which by its order dated 3.10.20164, dismissed the Review Petition and affirmed the award of death sentence. The order stated that on careful comparison of aggravating and mitigating circumstances and keeping in view the principles of law laid down by this Court, the Court was not inclined to allow the Review Petition or modify the order dated 1.2.2011. (k) Within few days thereafter, Writ Petition No. 53944/2016 was preferred by the appellant seeking reliefs as extracted hereinabove. The High Court by its order dated 20.10.2016, stayed execution of death sentence imposed upon the appellant. Thereafter, statements of objections were preferred on behalf of the Union of India and State of Karnataka, to which rejoinders were filed. An application under Section 151 of the Code of Civil Procedure, 1908 was also preferred to bring on record certain documents regarding medical condition of the appellant. 4. By its judgment and order dated 29.9.2021, the High Court dismissed the aforesaid writ petition. After considering the submissions advanced on behalf of the parties, the following conclusions were arrived at by the High Court: - “(i) There is no excessive, unexplained, inordinate delay attributable to the respondents in deciding the mercy (ii) There is no violation of the petitioner’s right under Article 21 of the Constitution of India; (iii) All the relevant and crucial materials required for deciding the mercy petition were placed before His Excellency, the Governor and His Excellency, the President of India and nothing has been kept out of (iv) Petitioner cannot be said to have been kept in solitary confinement.” 5. In the challenge raised in the instant matter, while issuing notice, the order dated 31.1.2022 passed by this Court noted the submissions on behalf of the appellants as under: - “a) Even after recording a finding that there was avoidable delay to the extent of 550 days in disposing of the mercy petition, the High Court did not grant any relief to the petitioner. b) Going by the letter written by a Medical Officer, which letter was not controverted, the petitioner was kept in solitary confinement for about 11 years. Thus, the law laid down by this Court in Sunil Batra v. Delhi Administration & Others5 was violated. c) The letter written by the Medical Officer was quite clear that because of the psychological condition, the petitioner was unable to make any mercy petition. This fact was also not taken into account in correct perspective by the High Court.” By said order, this Court also called for certain documents as “a. The State shall place before us the Report(s) of all the Probation Officer(s) relating to the accused before the next date of hearing. In case there have been more than one Report, let all Reports be placed for the consideration of this Court. b. Since the National Institute of Mental Health and Neuro Sciences (NIMHANS) at Bengaluru, has on the earlier occasion made psychological assessment of the petitioner, the Director NIMHANS is directed to constitute a suitable team for psychological evaluation of the petitioner and send a Report before the next date of hearing. c. The Jail Authorities, Belgaum Central Prison where the petitioner is presently lodged shall render complete co- operation in facilitating access to and due evaluation of the petitioner in all respects.” 6. When the matter was taken up on 21.4.2022, after noting the submission advanced on behalf of the appellant that the appellant had been kept in solitary confinement right from the decision of the Sessions Court, directions were issued to the District Judge, Belgaum to cause an inspection to be undertaken and submit a report. The text of the order was as under: - “The basic submissions raised on behalf of the petitioner were recorded in the order dated 31.01.2022. While elaborating those submissions, Dr. Yug Mohit Chaudhry, learned advocate, has stressed the point that the petitioner was kept in solitary confinement right from the decision of the Sessions Court awarding him death sentence. Our attention is invited to various documents including the Prison Manual in support of the submission that, as the petitioner was segregated and kept in a separate Cell, that would amount to solitary confinement, in terms of the law laid down in Sunil Batra Etc. vs Delhi Administration and The submission is opposed on behalf of the State Government and though no specific reply was filed in the High Court controverting the basic allegations in the writ petition, Mr. Nikhil Goel, learned AAG for the State, on instructions, submits that video conferencing can be arranged so that this Court can have clear knowledge about the circumstances in which the petitioner has been lodged in a Cell. It is true that the Hon’ble Judges constituting the Bench in Sunil Batra’s5 case had visited the jail premises themselves in order to have first-hand knowledge about the conditions in which said petitioner was lodged. We may at this stage rely upon the local inspection to be conducted by the District Judge, Belgaum who also holds the charge as the Chairman of the District Legal Services Committee, Belgaum. We therefore, direct the District Judge, Belgaum to cause local inspection done by himself and place a report alongwith pictures, if any, to enable us have a clear understanding of the ground situation. The report shall concentrate on location of the barracks in which the cells of Death Row Convicts are situated. It is made clear that the Cells which are close to the gallows and are used for keeping persons about to be executed, are different from the Cells for the Death Row Convicts. The inspection shall cover issues whether the inmates of the concerned cells are allowed to intermingle with fellow prisoners, the way the meals are served to them and the duration for which the inmates are allowed to come out of their individual cells. These are only illustrative pointers. What we want to gather is the typical life-style of Death Row Convicts and how their days are spent. Let the report be made as early as possible and latest by The report shall be sent through electronic mode at the following Email id.: vc2.appearance@sci.nic.in. Let copy of this order be sent through electronic mode to the District Judge, Belgaum. To our specific query as to the manner in which the Mercy Petition of the petitioner was processed, Ms. Sonia Mathur, learned Senior Advocate appearing for Union of India has placed the concerned file for our perusal. The Registry is directed to make copies of the file and return the same to the concerned advocate on record by tomorrow.” 7. Accordingly, report dated 21.4.2022 has been placed on record by Principal District & Sessions Judge, Belgaum alongwith picture photograph(s) of the concerned Jail barracks and the cells. The Report is as under: - 1. “As per the directions, I visited Central Prison, Hindalaga at 2.15 p.m. without prior notice to the Jail Authorities. 2. The concerned barrack wherein the death convict Sri B A Umesh is housed is on the North-Eastern side facing East in the Central Prison Hindalga. There are six cells each measuring 8x10 feet approximately. Each cell has a toilet in the corner with an adequate water facility. Each of the prisoners is given a flat mattress and they are at liberty to have their own bedding. There is electric light in each of the cells which can be put on at their wish and they have one window facing towards the West. The cells are covered with grill doors and adequate light and air is available. These six cells are of tiled roof. Encircling the six cells, there is guard room and another common toilet outside within the compound. Even in the compound of the barrack, there is a facility for washing of the clothes etc. It was informed that prison also has R.O. Water facility which would be provided in plastic pots. 3. Out of these six cells, five are occupied. In one of the cells, there are four persons involved in an offence of kidnapping, robbery, and murder. They are Siddhalingesh, Suraj, Akshay and Jameer. In another cell, there are two occupants viz., Sameer and Shakib, who are involved in offence under Section 307 of IPC. Another cell is occupied by Balu involved in a murder case. They are all under trial prisoners. 4. The Remaining two cells are occupied by one person each i.e, Akash Desai convicted for offence under NDPS Act for 10 years. Southern most cell is occupied by death convict Shri. B.A. Umesh. They informed that they are in the said cells for the last 3 months to 8 years. The other 26 death convicts are in other barracks including high security barrack, women barrack and a hospital. 5. The inmates of the cell informed that they are unlocked from the cells at about 6.00 a.m. They are allowed to wander in the compound of the barrack. The barrack is guarded by five guards and it was informed that they are free to wash their clothes and take bath outside and sit under the trees in the compound. There is also hospital block in the prison and if necessary, they will be escorted to the hospital where there is a Medical Officer available. Hospital also has inpatient facilities and mini laboratory is also adjoining it. The inmates also told me that they can talk to fellow prisoners and there are no restrictions during daytime. The cells will be locked again at 6.00 p.m. in the evening. 6. It is informed that breakfast is served at about 7.30 in the morning, lunch will be served at about 11.00 a.m. and supper would be served at 4.30 p.m. The inmates are free to consume the supper at any time they find it convenient and they can eat sitting together. All the inmates including Shri. B.A. Umesh informed that the quality of food is good and adequate. It was informed by the jail authorities that a minimum of five guards are posted in the barrack on a rotation basis. 7. It was also informed that in one of the cells there is a TV fixed which may be seen by all the inmates together. 8. It was also informed that prisoners are at liberty to purchase bakery items which are prepared by the inmates and sold in the prison itself. It was informed that the prisoners purchase the bakery items out of the earnings made by them. 9. Adjoining the said barrack of six cells, on the northern side, there is a gate leading to the gallows. There is no separate cell meant for death convict, who would be kept in the cell before he is taken to the gallows. 10. Thus it is observed that the cells have adequate light, air, drinking water facilities, a common facility to view TV, and adequate water for bathing and washing of the clothes. The cells are enclosed in a separate compound within the prison. They can move around the cells freely between 6.00 a.m. and 6.00 p.m. 11. The photographs and videos of the cells are attached with this report for kind perusal.” 8. On the subsequent date, the submissions advanced on behalf of the appellant were discussed in the order dated 26.4.2022 as “The Principal District and Sessions Judge, Belagavi has placed on record his Report dated 21.04.2022. Copies of the Report have been furnished to the parties. Dr. Yug Mohit Chaudhry, learned advocate submits that since the last date of hearing, the counsel for the petitioner have had interactions with the petitioner. Dr. Chaudhry fairly accepts that whatever is stated in the Report corresponds to the instructions received from the petitioner and that the Report depicts true state of affairs in the concerned Barrack and the Cell. He, however submits that the petitioner was kept in what is commonly called “Andheri Block” in Belagavi Prison from 2006 to October, 2016 i.e. till stay was granted by the High Court to the execution of death sentence. It is submitted that there are 12 Cells in that Block and only one prisoner is kept in a Cell; the petitioner was not allowed to get out of his Cell at any time during the entire length of stay except for 2 Yoga sessions which were conducted and one function where inmates were allowed to offer prayers to Lord Ayyappa. In his submission that was the worst period of his stay inside the prison and the imprisonment in the Cell in “Andheri Block” can certainly be said to be “Solitary confinement” as described in Sunil Batra Etc. vs Delhi Administration and Ors. Etc.5. Dr. Chaudhry further submits that after October, 2016 till January, 2019 the petitioner was lodged in same “Andheri Block” but was allowed to come out of the Cell thrice a day and after January, 2019 he was shifted to the present Barrack with respect to which the Report has been made. We have also had the benefit of interaction with the concerned Jail Superintendent who is present in Court. He has accepted that the petitioner was kept in “Andheri Block” till January, 2019. He has also accepted that only one inmate is kept in a cell in said “Andheri Block”. It is however, stated that all the inmates are allowed to come out of their cells thrice a day for the duration of 2-3 hours each. It is submitted that they are taken out at about 6.30 A.M. in the morning and are re-lodged after the breakfast, again to be taken out for the purposes of lunch and supper and are finally re-lodged around 5.00 P.M. In sum and substance, according to him, the inmates are allowed to come out of their Cells for about 6 hours everyday. It is further stated that the petitioner was shifted to the present Barrack in January, 2019 by his predecessor and since then the petitioner has been confined in the present Barrack in circumstances described in the Report. Thereafter, submissions were advanced by Mr. Nikhil Goel, learned AAG for the State and Ms. Sonia Mathur, learned Senior Advocate for Union of India. After conclusion of their submissions, Dr. Chaudhry made his submissions in rejoinder.…..” 9. We heard Dr. Yug Mohit Chaudhry, learned advocate assisted by Ms. Payoshi Roy, learned advocate for the appellant, Mr. Nikhil Goel, learned Additional Advocate General for the State and Ms. Sonia Mathur, learned Senior Advocate for Union of India. After conclusion of submissions, the matter was reserved for 10. The parties thereafter filed written submissions and, in the submissions filed on behalf of the appellant, the challenge has principally been raised on two grounds: (i) delay in deciding mercy petition and (ii) the Solitary Confinement that the appellant was subjected to. On the first issue, following chart has been placed on “Chunks of Unexplained Delay 1. 3.3.11 The Central Government forwards No explanation for why it took 1 the mercy petition to the State year, 2 months and 5 days (432 Government asking the Governor to days) to send a consider the mercy petition first. recommendation to the 7.5.12 A decision to reject the mercy Governor, or any account of petition is taken in the Cabinet what steps were taken to Meeting and recommendation is process the mercy petition sent to the Governor. during this period. 2. 6.6.12 The mercy petition is rejected by 2 months and 25 days (85 days) the Governor delay to forward the mercy 30.8.12 The State Government forwards the petition to the Central mercy petition for consideration by Government. the President. 3. 18.9.12 The Central Government seeks the 3 months and 9 days delay to following information from the send information that is readily State Government – available with the State (i) Copy of mercy petition Government. submitted by the Despite the Central condemned prisoner Government’s request that this himself, if any. information be sent at the (ii) Details of previous earliest (21.11.2012 letter), the criminal record. State Government still took (iii) Medical Health Report another 1 month. The fact that (iv) Nominal Roll. a reminder had to be sent by the 27.11.12 The Central Government sends a Central Government itself reminder letter to the State testifies to the delay. Government to send information 26.12.12 The State Government forwards the information requested vide letter 4. 15.5.13 The Central Government informs No explanation for the delay of the State Government about the 4 months and 20 days in rejection of mercy petition. deciding the mercy petition, or any account of what steps were Time Period Relevant to the Mercy Petition Adjudication Total Custody suffered till Date 2.3.1998-23.2.2021 22 years, 11 months, 22 days Total Custody suffered under 27.10.2006-23.2.2021 14 years, 3 months, 28 days Sentence of Death (5,234 days) Total Delay caused in Disposal 8.2.2011-15.5.2013 2 years, 3 months, 7 days (827 of Mercy Petition by State days) i.e. 2.26 years” Govt. and Govt. of India On the point of Solitary Confinement, it has been submitted:- “31. The Petitioner submits that he was kept in single cell from 2006 to 2016 in a block called the Andheri Block. During this time, he was kept for most of the day inside the cell. The only other person he saw was the prison guard. He was made to eat and use the toilet within his cell and was not allowed to meet or speak to any other inmates, to this entire duration he was allowed to participate in a pooja and a yoga camp only in one instance. Therefore from 2006-2016 the Petitioner was kept in strict solitary confinement. 32. The Petitioner concedes that after 2016 the conditions of his incarceration were gradually relaxed and at present, even though he is kept in a single cell, he is allowed to mingle with other inmates in the yard during the day. 33. The Petitioner submits that despite having pleaded the specific conditions of his solitary confinement till 2016 in his writ petition before the Hon’ble High Court as well as in his SLP before this Hon’ble Court the Respondent has not brought on record any material to the contrary. 34. In its reply dated 9.1.2017 before the Hon'ble High Court (SLP Pg 316-325) and before this Hon‘ble Court the Respondent has merely stated that the Petitioner was allowed visits to the library and canteen and allowed visitors from time to time and hence his incarceration did not constitute solitary confinement. 35. That neither before the High Court nor in its affidavit in reply before this Hon’ble Court did the Respondent aver that the Petitioner was allowed to mingle with other prisoners between 2006-2016. That had the Petitioner been allowed to mingle with other prisoners, the Respondents would have mentioned the same in their affidavit in reply along with the fact of visits to the library and canteen. Therefore, it is clear that the Respondent's oral argument made before this Hon'ble Court is nothing but an afterthought and sans any evidentiary basis. 36. Further, the statements made by the superintendent of Belagum Central Prison before this Hon‘ble Court only pertains to the conditions of incarceration after 2019, when the Superintendent assumed his duties in Belgaum Central Prison. These statements do not attest to the conditions of incarceration prior to 2019.” 11. In the written submissions filed on behalf of Union of India, it has been asserted: - It is submitted that the Petitioner has conceded that there is no inordinate delay on part of the Respondent No.1 in deciding the mercy petition. It is a settled position of law that there can be no specific time limit prescribed for deciding mercy petitions [See, Para 41-44 of Shatrughan Chauhan and Anr. v. Union of India and Ors.6] and only undue or inordinate delay is what is to be looked at [See, Para 16-17, Para 71-76 of Triveniben v. State of Gujarat7]. The time taken for collating the information and analyzing the same is not to be considered as undue. Further, it is also established that there can be no absolute or unqualified rule laid down for the purposes of determining delay in mercy petitions and several factors are required to be taken into account while considering the question as to whether the death sentence should be vacated or not [See, Para 19 of Sher Singh & Ors. v. State of Punjab8]. Every case is required to be considered on its own facts and circumstances. 01.02.2011 Conviction of the Petitioner and imposition of death sentence on him is confirmed by the Hon’ble Supreme 08.02.2011 Petitioner’s mother files a mercy petition on behalf of the Petitioner. 17.02.2011 Review Petition is filed against the Hon’ble Supreme Court judgement 07.09.2011 The Review Petition is dismissed. 06.06.2012 The Mercy Petition is rejected by the 30.08.2012 Mercy petition is forwarded by the Respondent No.2 to Respondent No.1. 18.09.2012, Respondent No.1 requests certain 27.11.2012 documents, including the medical health report of the Petitioner, to be sent by the Respondent No. 2. 26.12.2012 Respondent No. 2 replied to the letter dated 18.09.2012 providing the 12.05.2013 The Mercy Petition was rejected by the It is submitted that the delay, if any, on part of the Respondent No. 1 has to be calculated from 26.12.2012 [when the required information was sent to the Central Govt.] till 12.05.2013 [when the mercy petition was finally rejected]. This amounts to approximately 5 months, which cannot be considered as inordinate delay. In any-event, the Petitioner has himself conceded that the delay in considering the mercy petition is not on account of the Without prejudice to the above, it is further submitted that the Petitioner did not prefer a Writ Petition till 17.10.2016 against the order of rejection of mercy petition by the Hon’ble President that was done on 12.05.2013. This step of seeking a judicial review of the rejection of the mercy petition was only taken after the Review Petition was finally rejected by the Hon’ble Supreme Court after granting a hearing in Open Court. The Convict was protected by the stay on execution granted by this Hon’ble Court in Writ Petition No. 52 of 2011 (B.A. Umesh v. Registrar, Supreme Court of India). The Petitioner couldn't be placed on the same pedestal as a convict condemned to death as he still had a judicial avenue open and no real apprehension of execution. It is submitted that the aspect of solitary confinement, if any, of the Petitioner is within the purview of the State Government/ Respondent No. 2 and therefore, no specific submissions are being made in this regard on behalf of the Respondent No.1. In any event, vide order dated 21.04.2022, the Hon’ble Supreme Court had directed the District Judge, Belgaum, to conduct a local inspection of the jail, concentrating on the location of the barracks in which the cells of the Death Row Convicts are situated, and place a report before the Hon’ble Court along with pictures, if any. In terms of the same, a report was placed before the Hon’ble Court which clearly indicated that the Petitioner was not placed in solitary confinement. It is submitted that the relevant documents were duly considered by the Hon’ble President before rejecting the Mercy Petition of the Petitioner. The Mercy Petition was forwarded to Respondent No.1 on 30.08.2012 for consideration by the Hon’ble President under Article 72 of the Constitution of India along with the relevant documents. On 18.09.2012, Respondent No. 1 sought additional information/documents with regard to the Medical Health Report, details of previous criminal record and few other aspects concerning the Petitioner [Letter dated 18.09.2012 at page 17 of the Additional Documents filed by the Petitioner]. In response to the said letter, the required documents/information was sent by the Respondent No. 2 vide letter dated 26.12.2012, including medical report of the Petitioner dated 05.10.2012 [Letter dated 26.12.2012 at page 19 of the Additional Documents filed by the 12. We now consider the first submission regarding delay in execution of death sentence due to pendency of Mercy Petition(s). At this stage, we may refer to the following passage from the three Judge Bench decision of this Court in Ajay Kumar Pal v. Union of India & Anr.9 (to which one of us was a party) which noted some of the decisions rendered by this Court on the point: “7. The question whether delay in execution of death sentence can be a sufficient ground or reason for substituting such sentence by life imprisonment has engaged the attention of this Court over a period of time. Some of those salient instances are: 7.1. In T.V. Vatheeswaran v. State of Tamil Nadu10, in an appeal arising from the Judgment of the High Court confirming the death sentence, the fact that the appellant was awarded death sentence by the first court eight years earlier, was noted by this Court. After referring to few earlier cases, where such delay during the pendency of the appellate proceedings was considered, it was observed: (SCC pp. 78-79, paras 21-21) "20. . . . In the United States of America where the right to a speedy trial is a constitutionally guaranteed right, the denial of a speedy trial has been held to entitle an accused person to the dismissal of the indictment or the vacation of the sentence (vide Strunk v. United States [1973] 37 L.Ed. 56). Analogy of American Law is not permissible, but interpreting our Constitution sui generis, as we are bound to do, we find no impediment in holding that the dehumanising factor of prolonged delay in the execution of a sentence of death has the constitutional implication of depriving a person of his life in an unjust, unfair and unreasonable way as to offend the constitutional guarantee that no person shall be deprived of his life or personal liberty except according to procedure established by law. The appropriate relief in such a case is to vacate the sentence of death. 21. . . . Making all reasonable allowance for the time necessary for appeal and consideration of reprieve, we think that delay exceeding two years in the execution of a sentence of death should be considered sufficient to entitle the person under sentence of death to invoke Article 21 and demand the quashing of the sentence of death. We therefore accept the special leave petition, allow the appeal as also the Writ Petition and quash the sentence of death. In the place of the sentence of death, we substitute the sentence of imprisonment for life." 7.2. Sher Singh and others v. State of Punjab8 was a case where the death sentence already stood confirmed by dismissal of appeal and review petition therefrom by this Court. Relying on the observations in Vatheeswaran10, delay in execution was projected as a ground in a petition under Article 32 of the Constitution of India. Though the Court was broadly in agreement with observations in Vatheeswaran10 it did not agree with the statement to the effect: (SCC p. 79, para 21) "21. . . . that delay exceeding two years in the execution of sentence of death should be considered sufficient to entitle the person under sentence to death to invoke Article 21 and demand the questioning of the sentence of death." However, in the context of Mercy Petitions and exercise of power in connection thereto, it was observed in para 23 as under: (Sher Singh Case8, SCC "23. We must take this opportunity to impress upon the Government of India and the State Governments that petitions filed under Articles 72 and 161 of the Constitution or under Sections 432 and 433 of the Criminal Procedure Code must be disposed of expeditiously. A self- imposed rule should be followed by the executive authorities rigorously, that every such petition shall be disposed of within a period of three months from the date on which it is received. Long and interminable delays in the disposal of these petitions are a serious hurdle in the dispensation of justice and indeed, such delays tend to shake the confidence of the people in the very system of justice. Several instances can be cited, to which the record of this Court will bear testimony, in which petitions are pending before the State Governments and the Government of India for an inexplicably long period. Undoubtedly, the executive has the power, in appropriate cases, to act under the aforesaid provisions but, if we may remind, all exercise of power is preconditioned by the duty to be fair and quick. Delay defeats justice." 7.3. The issue was settled by the Constitution Bench decision in Triveniben v. State of Gujarat7, where it was concluded "No fixed period of delay could be held to make the sentence of death inexecutable ...". The scope and ambit of exercise of jurisdiction in such cases was delineated thus in para 22: (SCC p. 697) "22. . . . the only jurisdiction which could be sought to be exercised by a prisoner for infringement of his rights can be to challenge the subsequent events after the final judicial verdict is pronounced and it is because of this that on the ground of long or inordinate delay a condemned prisoner could approach this Court and that is what has consistently been held by this Court. But it will not be open to this Court in exercise of jurisdiction under Article 32 to go behind or to examine the final verdict reached by a competent court convicting and sentencing the condemned prisoner and even while considering the circumstances in order to reach a conclusion as to whether the inordinate delay coupled with subsequent circumstances could be held to be sufficient for coming to a conclusion that execution of the sentence of death will not be just and proper. The nature of the offence, circumstances in which the offence was committed will have to be taken as found by the competent court while finally passing the verdict. It may also be open to the court to examine or consider any circumstances after the final verdict was pronounced if it is considered relevant. The question of improvement in the conduct of the prisoner after the final verdict also cannot be considered for coming to the conclusion whether the sentence could be altered on that ground also." 7.4. In Shatrughan Chauhan6 after considering law on the point as regards delay in execution of the death sentence and the resultant effect, as also the scope and ambit of exercise of power, it was observed in paras 38, 41 and 42 as under: (SCC pp. 38-39) "44. In view of the above, we hold that undue long delay in execution of sentence of death will entitle the condemned prisoner to approach this Court under Article 32. However, this Court will only examine the circumstances surrounding the delay that has occurred and those that have ensued after sentence was finally confirmed by the judicial process. This Court cannot reopen the conclusion already reached but may consider the question of inordinate delay to decide whether the execution of sentence should be carried out or should be altered into imprisonment for life. 47. It is clear that after the completion of the judicial process, if the convict files a mercy petition to the Governor/President, it is incumbent on the authorities to dispose of the same expeditiously. Though no time limit can be fixed for the Governor and the President, it is the duty of the executive to expedite the matter at every stage, viz., calling for the records, orders and documents filed in the court, preparation of the note for approval of the Minister concerned, and the ultimate decision of the constitutional authorities. This court, in Triveniben7, further held that in doing so, if it is established that there was prolonged delay in the execution of death sentence, it is an important and relevant consideration for determining whether the sentence should be allowed to be executed or not. 48. Accordingly, if there is undue, unexplained and inordinate delay in execution due to pendency of mercy petitions or the executive as well as the constitutional authorities have failed to take note of/consider the relevant aspects, this Court is well within its powers under Article 32 to hear the grievance of the convict and commute the death sentence into life imprisonment on this ground alone however, only after satisfying that the delay was not caused at the instance of the accused himself. To this extent, the jurisprudence has developed in the light of the mandate given in our Constitution as well as various Universal Declarations and directions issued by the United Nations." 13. In Ajay Kumar Pal9 the delay in question was three years and ten months which was found to be inordinate and that said delay was not to the account of said petitioner but to the account of the functionaries and authorities in question. Pertinently, the matter was also considered from the standpoint of solitary confinement and violations in that behalf. 14. Paras 44 and 48 of the decision of this Court in Shatrughan Chauhan6 which were quoted in Ajay Kumar Pal9, had laid down that undue long delay in execution of death sentence would entitle the condemned prisoner to pray for commuting the death sentence to that of life imprisonment. The individual cases were thereafter dealt with in Shatrughan Chauhan6 and paragraph 105 onwards of said decision show that in cases where there was a delay of 12 years (para 118), 9 ½ years (Para 137), 9 ½ years (Para 147), 7 years and 8 months (Para 161), 5 years and 8 months (Para 175) and 7 years and 5 months (Para 209), the benefit of commutation was extended by this Court. 15. If the instant matter is considered in light of these cases and the settled principles, the alleged period in the instant matter is of two years and three months i.e., starting from the receipt of the mercy petition on 3.3.2011 by the Central Government till the disposal on 15.5.2013. It must be stated that soon after the receipt of the said mercy petition, the Ministry of Home Affairs, Government of India forwarded the mercy petition to the Principal Secretary, Home Department, Karnataka so that the Governor, Karnataka could consider the mercy petition first. In the meantime, on 9.3.2011 in Writ Petition No.52 of 2011 preferred by the appellant, this Court had granted stay of execution of death The matter was considered by the State Cabinet on 7.5.2012 which decided to approve the note prepared by the Home Department recommending rejection of the mercy petition. The matter was then placed before the Hon’ble Governor who rejected the mercy petition on 06.06.2012. The copy of the order passed by the Hon’ble Governor and relevant documents were forwarded by the State Government to the Central Government on On 18.09.2012, certain information was sought by the Central Government from the State Government which was furnished to the Central Government on 26.12.2012. The matter was thereafter taken up at the Central Government level. The Ministry of Home Affairs prepared an appropriate note for the Hon’ble President who after considering the entirety of the matter rejected the mercy petition on 12.05.2013. 16. Thus, the entire period beginning from 03.03.2011 to 15.05.2013 spanning over a period of 2 years and 3 months saw disposal of mercy petition at two different levels, one, by the Hon’ble Governor and other by the Hon’ble President. All the while, there was an order of stay granted by this Court on 19.3.2011 which was operating all through. 17. First and foremost, the time taken by each of these authorities and the functionaries assisting them cannot be called or termed as “inordinate delay” and secondly, it was not as if every passing day was adding to the agony of appellant. The order of stay of execution had put the matter in a different perspective. In the given facts and circumstances of the case, in our view, the first submission does not merit acceptance. We are conscious of the fact that in a recent decision in A.G. Perarivalan vs. State through Superintendent of Police & Anr.11, a Bench of three judges of this court commuted the sentence of death to life as the petition preferred under Article 161 of the Constitution had remained pending for two and half years with the Hon’ble Governor, despite the recommendations of the State Cabinet for remission of the sentence. In that case no decision was taken by the Hon’ble Governor in spite of the recommendations of the State Cabinet and as such the benefit of commutation was extended. The facts which came up for consideration in said decision thus stand on a completely different footing as against the instant 18. We now move to the second submission pertaining to solitary confinement of the appellant. Reliance in this behalf has been placed on the decision of this Court in Sunil Batra vs. Delhi Administration & Ors.5; and also on the decision of Ajay Kumar Pal9 in which segregation of the concerned petitioner, from the day he was awarded death sentence till his mercy petition was disposed of, was taken to be in violation of the law laid down by this Court in Sunil Batra5 and the death sentence was commuted to life on both counts, namely; inordinate delay in considering the mercy petition and the solitary confinement that the concerned petitioner was subjected to. 19. In the instant case, the letter written by Medical Officer, Belgaum Central Prison on 6.11.2011 did say that the appellant was kept in solitary confinement and said letter has been heavily relied upon by the appellant in support of the second submission. According to the letter, the appellant was kept in solitary confinement since his admission to the prison in October, 2006 and that apart from common illness such as diarrhoea, fever, running nose and backache, the appellant was found to be suffering from psychosis with depression. Pertinently, on 8.11.2011, a letter was sent by the Chief Superintendent, Belagavi Central Prison to Additional DGP and IG Prisons, Karnataka to the following effect: - “….. With respect to the above subject, we submit, that the death penalty convict no. 307, Umesh B.R. son of Ajjappa Reddy’s appeal petition was rejected by the Hon’ble Supreme Court, New Delhi and a letter confirming his death sentence has been sent to this office as mentioned in the reference. The said subject matter and processes have been explained in detail several times to the convict in the presence of all officers, but as the convict is mentally ill he is not agreeing to submit any more mercy petitions. So we have not received any mercy petitions from him. The convict was examined by the Prison Doctors and have given a medical report which is attached with this letter for your perusal and for further This letter also affirms the fact that the appellant was mentally ill. 20. The act on part of the medical officer in checking the health and well-being of the appellant was obviously because of the mandate of Section 29 of the Prisons Act, 1894 which is to the following effect: - “29. Solitary confinement. – No cell shall be used for solitary confinement unless it is furnished with the means of enabling the prisoner to communicate at any time with an officer of the prison, and every prisoner so confined in a cell for more than twenty-four hours, whether as a punishment or otherwise, shall be visited at least once a day by the Medical Officer or Medical Subordinate.” It must, therefore, be taken to be accepted that from 2006 till 2016, the appellant was kept in solitary confinement in “Andheri Block” and it was only thereafter, some relaxation in the rigours of the solitary confinement was effected and as the record shows, from 2016 onwards the conditions were gradually relaxed. 21. The law on the point, as declared in Sunil Batra5 is very clear and as was held by this Court in Ajay Kumar Pal9, segregation of a convict from the day when he was awarded death sentence till his mercy petition was disposed of, would be in violation of law laid down by this Court in Sunil Batra5. In the instant case, the death sentence was awarded to the appellant in 2006 by the trial Court and the mercy petition was finally disposed of by the Hon’ble President on 12.5.2013, which means that the incarceration of the appellant in solitary confinement and segregation from 2006 to 2013 was without the sanction of law and completely opposed to the principles laid down by this Court 22. In Ajay Kumar Pal9, on the issue of segregation of the convict in violation of the principles laid down in Sunil Batra5, this Court observed: - “9. Furthermore, as submitted in the petition, the petitioner has all the while been in solitary confinement i.e. since the day he was awarded death sentence. While dealing with Section 30(2) of the Prisons Act, 1894, which postulates segregation of a person “under sentence of death” Krishna Iyer, J. in Sunil Batra5 observed: (SCC p. 563, para 197-A) “197-A. (5) The crucial holding under Section 30(2) is that a person is not ‘under sentence of death’, even if the sessions court has sentenced him to death subject to confirmation by the High Court. He is not ‘under sentence of death’ even if the High Court imposes, by confirmation or fresh appellate infliction, death penalty, so long as an appeal to the Supreme Court is likely to be or has been moved or is pending. Even if this Court has awarded capital sentence, Section 30 does not cover him so long as his petition for mercy to the Governor and/or to the President permitted by the Constitution, Code and Prison Rules, has not been disposed. Of course, once rejected by the Governor and the President, and on further application there is no stay of execution by the authorities, he is ‘under sentence of death’, even if he goes on making further mercy petitions. During that interregnum he attracts the custodial segregation specified in Section 30(2), subject to the ameliorative meaning assigned to the provision. To be ‘under sentence of death’ means ‘to be under a finally executable death sentence’.” (emphasis in original) Speaking for the majority in the concurring judgment D.A. Desai, J. stated thus : (Sunil Batra case5, SCC p. 572, para “223. The expression ‘prisoner under sentence of death’ in the context of sub-section (2) of Section 30 can only mean the prisoner whose sentence of death has become final, conclusive and indefeasible which cannot be annulled or voided by any judicial or constitutional procedure. In other words, it must be a sentence which the authority charged with the duty to execute and carry out must proceed to carry out without intervention from any outside authority.” 10. In the light of the enunciation of law by this Court, the petitioner could never have been “segregated” till his mercy petition was disposed of. It is only after such disposal that he could be said to be under a finally executable death sentence. The law laid down by this Court was not adhered to at all while confining the petitioner in solitary confinement right since the order of death sentence by the first court. In our view, this is complete transgression of the right under Article 21 of the Constitution causing incalculable harm to the petitioner. 11. The combined effect of the inordinate delay in disposal of mercy petition and the solitary confinement for such a long period, in our considered view has caused deprivation of the most cherished right. A case is definitely made out under Article 32 of the Constitution of India and this Court deems it proper to reach out and grant solace to the petitioner for the ends of justice. We, therefore, commute the sentence and substitute the sentence of life imprisonment in place of death sentence awarded to the petitioner. The writ petition thus stands allowed.” 23. In its jurisdiction under Article 32 of the Constitution of India, this Court had thus deemed it proper to reach out and grant solace to the petitioner on both grounds, namely, delay in disposal of mercy petition and solitary confinement for a long period. The period of solitary confinement in Ajay Kumar Pal9 in violation of the law laid down in Sunil Batra5 was from 2007 till 2014, i.e., for nearly seven years. In the instant case, the period of solitary confinement is for about ten years and has two elements: one, from 2006 till the disposal of mercy petition in 2013; and secondly from the date of such disposal till 2016. The question then arises: whether on this ground alone, the appellant is entitled to have the death sentence commuted? 24. In Shatrughan Chauhan6, solitary confinement was accepted and recognised as one of the grounds on the basis of which death sentence can be commuted. However, in the batch of matters under consideration in Shatrughan Chauhan6, no benefit was granted to any of the convicts on this ground. Paragraph 88 onwards, the effect of the law laid down by this Court in Sunil Batra5 and other cases was noticed and it was concluded “90. It was, therefore, held in Sunil Batra case5, that the solitary confinement, even if mollified and modified marginally, is not sanctioned by Section 30 of the Prisons Act for prisoners “under sentence of death”. The crucial holding under Section 30(2) is that a person is not “under sentence of death”, even if the Sessions Court has sentenced him to death subject to confirmation by the High Court. He is not “under sentence of death” even if the High Court imposes, by confirmation or fresh appellate infliction, death penalty, so long as an appeal to the Supreme Court is likely to be or has been moved or is pending. Even if this Court has awarded capital sentence, it was held that Section 30 does not cover him so long as his petition for mercy to the Governor and/or to the President permitted by the Constitution, has not been disposed of. Of course, once rejected by the Governor and the President, and on further application, there is no stay of execution by the authorities, the person is under sentence of death. During that interregnum, he attracts the custodial segregation specified in Section 30(2), subject to the ameliorative meaning assigned to the provision. To be “under sentence of death” means “to be under a finally executable death sentence”. 91. Even in Triveniben v. State of Gujarat7, this Court observed that keeping a prisoner in solitary confinement is contrary to the ruling in Sunil Batra5 and would amount to inflicting “additional and separate” punishment not authorised by law. It is completely unfortunate that despite enduring pronouncement on judicial side, the actual implementation of the provisions is far from reality. We take this occasion to urge to the Jail Authorities to comprehend and implement the actual intent of the verdict in Sunil Batra v. Delhi Admn.5.” 25. The benefit of commutation was, however, granted in Ajay Kumar Pal9 on the ground that the solitary confinement was against the principles laid down in Sunil Batra5 and also on the ground of delay. Having considered the entirety of matter, in our view, the impact of solitary confinement were obviously evident in the instant case, as would be clear from the letter given by the medical professional on 6.11.2011 and the communication emanating from the jail on 8.11.2011. The incarceration in solitary confinement thus did show ill effects on the well-being of the appellant. In the backdrop of these features of the matter, in our view, the appellant is entitled to have the death sentence imposed upon him to be commuted to death sentence to life. 26. At this stage, we may refer to a recent decision by a three- Judge Bench in Mohd. Mannan alias Abdul Mannan vs. State of Bihar12, where while accepting the review petition, the sentence of death was commuted to imprisonment for life. However, it was observed in paragraphs 87 and 88 as under: - “87. Even though life imprisonment means imprisonment for entire life, convicts are often granted reprieve and/or remission of sentence after imprisonment of not less than 14 years. In this case, considering the heinous, revolting, abhorrent and despicable nature of the crime committed by the petitioner, we feel that the petitioner should undergo imprisonment for life, till his natural death and no remission of sentence be granted to him. 88. We, therefore, commute the death sentence imposed on the petitioner to life imprisonment, till his natural death, without reprieve or remission.” 27. Considering the entirety of facts and circumstances on record, in our view, ends of justice would be met if while commuting the death sentence awarded to the appellant, we impose upon him sentence of life imprisonment with a rider that he shall undergo minimum sentence of 30 years and if any application for remission is moved on his behalf, the same shall be considered on its own merits only after he has undergone actual sentence of 30 years. If no remission is granted, it goes without saying that as laid down by this Court in Gopal Vinayak Godse vs. State of Maharashtra13, the sentence of imprisonment for life shall mean till the remainder of his life. 28. The appeal is allowed accordingly. 29. Before we part, we must observe that the instruction quoted in paragraph 3(f) of this Judgment leads to an incongruous situation. According to it, the mercy petition must be filed within seven days of the disposal of the appeal or dismissal of special leave petition. A convicted accused is entitled to file a review petition within thirty days. An anomalous situation, like the present one, may arise where even before the review is filed, the mercy petition is required to be filed. The concerned instruction requires suitable modification so as to enable the convicted accused to file mercy petition after exhaustion of remedies in Court of law. Date : 04-11-2022 This appeal was called on for pronouncement of Judgment today. UPON hearing the counsel the Court made the following Hon’ble the Chief Justice of India pronounced the Reportable Judgment of the Bench comprising Hon’ble the Chief Justice of India, Hon’ble Mr. Justice S. Ravindra Bhat and Hon’ble Mr. Justice The operative portion of the judgment reads as under: “1. Leave granted. 27. Considering the entirety of facts and circumstances on record, in our view, ends of justice would be met if while commuting the death sentence awarded to the appellant, we impose upon him sentence of life imprisonment with a rider that he shall undergo minimum sentence of 30 years and if any application for remission is moved on his behalf, the same shall be considered on its own merits only after he has undergone actual sentence of 30 years. If no remission is granted, it goes without saying that as laid down by this Court in Gopal Vinayak Godse vs. State of Maharashtra1, the sentence of imprisonment for life shall mean till the remainder of his life. 28. The appeal is allowed accordingly. 29. Before we part, we must observe that the instruction quoted in paragraph 3(f) of this Judgment leads to an incongruous situation. According to it, the mercy petition must be filed within seven days of the disposal of the appeal or dismissal of special leave petition. A convicted accused is entitled to file a review petition within thirty days. An anomalous situation, like the present one, may arise where even before the review is filed, the mercy petition is required to be filed. The concerned instruction requires suitable modification so as to enable the convicted accused to file mercy petition after exhaustion of remedies in Court of law.” Pending applications, if any, also stand disposed of. (Signed Reportable Judgment is placed on the File)
The Supreme Court changed the death sentence of a person convicted of murder. They did this because he was illegally kept in solitary confinement for about ten years. BA Umesh, also known as Umesh Reddy, was a former police officer. A local court in Bengaluru sentenced him to death in 2006 after he was found guilty of rape and murder. He was convicted of raping and murdering a housewife. The Supreme Court later confirmed his death sentence in 2011. The President of India turned down his request for mercy. He then went to the Karnataka High Court to challenge this decision. When the High Court rejected his legal request, he went to the Supreme Court. At the Supreme Court, Umesh's lawyers argued that he was kept in solitary confinement in a special cell called "Andheri Block" from 2006 to 2016. This was against a past Supreme Court ruling from a case called Sunil Batra vs. Delhi Administration & Others (1978). His lawyers also pointed to another case, Ajay Kumar Pal vs Union of India (2015). In that case, another person's death sentence was changed because they had been kept alone from the day they were sentenced to death until their request for mercy was decided. The court in that case said this was also against the law established in the Sunil Batra case. The court looked at this argument and all the other important documents shown to them. They then stated: "After considering everything in this case, we believe that the negative effects of solitary confinement were very clear. This is evident from a letter written by a doctor on November 6, 2011, and a report from the jail on November 8, 2011. Being held in solitary confinement clearly caused harm to Umesh's health and well-being. Given these facts, we believe that Umesh deserves to have his death sentence changed to life imprisonment." So, the court changed the death sentence to life imprisonment. However, they added a condition: he must serve a minimum of 30 years in prison. The court also added: "If someone asks for his early release from prison, that request will only be looked at fairly after he has served 30 years. If early release is not given, it means that, as this Court has decided before, a life sentence means he will stay in prison for the rest of his life."
2. This appeal challenges the judgment and order dated 29.9.2021 passed by the High Court of Karnataka at Bengaluru, dismissing Writ Petition No. 53944/2016 (GM-Res) preferred by the appellant herein. Said writ petition had prayed, inter alia, for following reliefs: - (A) “Issue appropriate writs, orders or directions Digitally signed by directing the Respondents to produce mercy files Reason: pertaining to the Petitioner, all the relevant papers and correspondence pertaining to the Petitioner’s mercy petition, for the perusal of the Court since the Petitioner has been able to show a grave, and unexceptionable delay in such processes as undertaken by the Respondents. (B) Issue appropriate writs, orders or directions directing production of medical file of the Petitioner from prison from the date of his arrest. (C) Issue appropriate writs, orders or directions and in particular a writ of Declaration, declaring that the execution of the sentence of death on the Petitioner (as communicated through letter dated 15.05.2013 - F.No.14/1/2011-Judicial Cell, Annexure N hereto) pursuant to the rejection of his mercy petition by the office of the Hon’ble President of India is unconstitutional and bad in law. (D) Issue appropriate writs, orders or directions commuting the death sentence of the Petitioner to imprisonment for life. (E) Declare that the decision of the office of the Hon’ble President of India rejecting the mercy petition filed by the Petitioner is illegal, void and unenforceable; (F) Declare that the decision of the office of the Hon’ble Governor of Karnataka rejecting the mercy petition filed by the Petitioner is illegal, void and (G) Quash and set aside the order of President of India rejecting the mercy petition filed by the Petitioner; (H) Quash and set aside the order of the Governor of Karnataka rejecting the mercy petition filed by the (I) Grant inspection of the documents mentioned in (A) and (B) to the Petitioner; (J) Issue any such other writs, orders and directions as this Hon’ble Court deems fit in the facts and circumstances of the case in the interest of justice and equity. 3. The basic facts leading to the filing of said Writ Petition are (a) One Jayashri, wife of Maradi Subbaiah was found raped and murdered in her home on 28.02.1998, which led to the registration of Crime No. 108/1998 with Division, Bengaluru City. The appellant was arrested in connection with said crime on 2.3.1998 and has been in custody since then. After due investigation, the appellant was tried in Sessions Case No. 725/1999 on the file of Sessions Judge, Fast Track Court-VII, Bengaluru for having committed offences punishable under Sections 302, 376 and 392 of the Indian Penal (b) By its judgment dated 26.10.2006, the trial Court convicted the appellant for the aforesaid offences and by order dated 27.10.2006, awarded punishment of death sentence, subject to confirmation by the High Court. The appellant was immediately transferred to Belgaum Central Prison and according to the appellant, he was kept in solitary confinement. (c) Case for confirmation of death sentence was registered as Criminal Reference No. 3/2006 before the High Court. The appellant also filed Criminal Appeal No. 2408/2006 challenging his conviction. The matter was heard by a Bench of two Judges, which confirmed the order of conviction, but disagreed on the sentence to be imposed. While Mr. Justice V.G. Sabhahit confirmed the award of death sentence, Mr. Justice R.B. Naik commuted the death sentence to life imprisonment. (d) The matter was therefore referred to the third Judge i.e., Mr. Justice S.R. Bannurmath on the issue of sentence, who affirmed the award of death sentence by his judgment dated 18.2.2009. (e) The matter was carried further by the appellant by filing Criminal Appeal Nos. 285-286/2011 before this Court, which were dismissed by this Court vide order dated 1.2.20112, affirming the appellant’s conviction and sentence of death imposed upon him. B.A. Umesh v. High Court of Karnataka, (2011) 3 SCC 85. (f) According to the procedure governing petitions for mercy in death sentence cases, a death convict can prefer a petition for mercy within seven (7) days after the dismissal of his appeal by this Court or rejection of application for special leave to appeal. The relevant instructions in that behalf read as under: - “I. A convict under sentence of death shall be allowed, if he has not already submitted a petition for mercy, for the preparation and submission of a petition for mercy, seven days after, and exclusive of, the date on which the Superintendent of Jail informs him of the dismissal by the Supreme Court of his appeal or of his application for special leave to appeal to the Supreme Court. Provided that in cases where no appeal to the Supreme Court, has been preferred or no application for special leave to appeal to the Supreme Court has been lodged, the said period of seven days shall be computed from the date next after the date on which the period allowed for an appeal to the Supreme Court or for lodging an application for special leave to appeal to the Supreme Court expires. (g) Having been informed about his right to file a mercy petition as per procedure, the appellant preferred a petition seeking mercy on 8.2.2011, i.e., within seven days. The appellant also preferred Review Petition against the decision dated 1.2.2011 passed by this Court. Around the same time, Writ Petition (Crl.) No. 52/2011 was preferred by the appellant in this Court praying, inter alia, for the relief of open Court hearing in review petition. In said writ petition, this Court by order dated 9.3.2011, directed stay of execution of death sentence. The Review Petition filed by the appellant was dismissed by circulation by this Court vide its order dated 7.9.2011. (h) Mercy petition preferred by the appellant was rejected by the Hon’ble President on 12.5.2013. An intimation in that behalf was sent vide letter dated 15.5.2013 to the appellant. (i) Writ Petition (Crl.) No. 52/2011 preferred by the appellant was decided alongwith Writ Petition (Crl.) No. 77/2014 (Mohd. Arif @ Ashfaq vs. Registrar General, Supreme Court of India & Ors.) by a Constitution Bench of this Court vide judgment dated 2.9.20143. It was held by majority that review petitions arising out of award of death sentence be heard in open Court by a Bench of three Judges of this Court. (j) Consequently, the Review Petition which was rejected earlier on 7.9.2011, was listed for re-hearing before a Bench of three Judges of this Court, which by its order dated 3.10.20164, dismissed the Review Petition and affirmed the award of death sentence. The order stated that on careful comparison of aggravating and mitigating circumstances and keeping in view the principles of law laid down by this Court, the Court was not inclined to allow the Review Petition or modify the order dated 1.2.2011. (k) Within few days thereafter, Writ Petition No. 53944/2016 was preferred by the appellant seeking reliefs as extracted hereinabove. The High Court by its order dated 20.10.2016, stayed execution of death sentence imposed upon the appellant. Thereafter, statements of objections were preferred on behalf of the Union of India and State of Karnataka, to which rejoinders were filed. An application under Section 151 of the Code of Civil Procedure, 1908 was also preferred to bring on record certain documents regarding medical condition of the appellant. 4. By its judgment and order dated 29.9.2021, the High Court dismissed the aforesaid writ petition. After considering the submissions advanced on behalf of the parties, the following conclusions were arrived at by the High Court: - “(i) There is no excessive, unexplained, inordinate delay attributable to the respondents in deciding the mercy (ii) There is no violation of the petitioner’s right under Article 21 of the Constitution of India; (iii) All the relevant and crucial materials required for deciding the mercy petition were placed before His Excellency, the Governor and His Excellency, the President of India and nothing has been kept out of (iv) Petitioner cannot be said to have been kept in solitary confinement.” 5. In the challenge raised in the instant matter, while issuing notice, the order dated 31.1.2022 passed by this Court noted the submissions on behalf of the appellants as under: - “a) Even after recording a finding that there was avoidable delay to the extent of 550 days in disposing of the mercy petition, the High Court did not grant any relief to the petitioner. b) Going by the letter written by a Medical Officer, which letter was not controverted, the petitioner was kept in solitary confinement for about 11 years. Thus, the law laid down by this Court in Sunil Batra v. Delhi Administration & Others5 was violated. c) The letter written by the Medical Officer was quite clear that because of the psychological condition, the petitioner was unable to make any mercy petition. This fact was also not taken into account in correct perspective by the High Court.” By said order, this Court also called for certain documents as “a. The State shall place before us the Report(s) of all the Probation Officer(s) relating to the accused before the next date of hearing. In case there have been more than one Report, let all Reports be placed for the consideration of this Court. b. Since the National Institute of Mental Health and Neuro Sciences (NIMHANS) at Bengaluru, has on the earlier occasion made psychological assessment of the petitioner, the Director NIMHANS is directed to constitute a suitable team for psychological evaluation of the petitioner and send a Report before the next date of hearing. c. The Jail Authorities, Belgaum Central Prison where the petitioner is presently lodged shall render complete co- operation in facilitating access to and due evaluation of the petitioner in all respects.” 6. When the matter was taken up on 21.4.2022, after noting the submission advanced on behalf of the appellant that the appellant had been kept in solitary confinement right from the decision of the Sessions Court, directions were issued to the District Judge, Belgaum to cause an inspection to be undertaken and submit a report. The text of the order was as under: - “The basic submissions raised on behalf of the petitioner were recorded in the order dated 31.01.2022. While elaborating those submissions, Dr. Yug Mohit Chaudhry, learned advocate, has stressed the point that the petitioner was kept in solitary confinement right from the decision of the Sessions Court awarding him death sentence. Our attention is invited to various documents including the Prison Manual in support of the submission that, as the petitioner was segregated and kept in a separate Cell, that would amount to solitary confinement, in terms of the law laid down in Sunil Batra Etc. vs Delhi Administration and The submission is opposed on behalf of the State Government and though no specific reply was filed in the High Court controverting the basic allegations in the writ petition, Mr. Nikhil Goel, learned AAG for the State, on instructions, submits that video conferencing can be arranged so that this Court can have clear knowledge about the circumstances in which the petitioner has been lodged in a Cell. It is true that the Hon’ble Judges constituting the Bench in Sunil Batra’s5 case had visited the jail premises themselves in order to have first-hand knowledge about the conditions in which said petitioner was lodged. We may at this stage rely upon the local inspection to be conducted by the District Judge, Belgaum who also holds the charge as the Chairman of the District Legal Services Committee, Belgaum. We therefore, direct the District Judge, Belgaum to cause local inspection done by himself and place a report alongwith pictures, if any, to enable us have a clear understanding of the ground situation. The report shall concentrate on location of the barracks in which the cells of Death Row Convicts are situated. It is made clear that the Cells which are close to the gallows and are used for keeping persons about to be executed, are different from the Cells for the Death Row Convicts. The inspection shall cover issues whether the inmates of the concerned cells are allowed to intermingle with fellow prisoners, the way the meals are served to them and the duration for which the inmates are allowed to come out of their individual cells. These are only illustrative pointers. What we want to gather is the typical life-style of Death Row Convicts and how their days are spent. Let the report be made as early as possible and latest by The report shall be sent through electronic mode at the following Email id. : vc2.appearance@sci.nic.in. Let copy of this order be sent through electronic mode to the District Judge, Belgaum. To our specific query as to the manner in which the Mercy Petition of the petitioner was processed, Ms. Sonia Mathur, learned Senior Advocate appearing for Union of India has placed the concerned file for our perusal. The Registry is directed to make copies of the file and return the same to the concerned advocate on record by tomorrow.” 7. Accordingly, report dated 21.4.2022 has been placed on record by Principal District & Sessions Judge, Belgaum alongwith picture photograph(s) of the concerned Jail barracks and the cells. The Report is as under: - 1. “As per the directions, I visited Central Prison, Hindalaga at 2.15 p.m. without prior notice to the Jail Authorities. 2. The concerned barrack wherein the death convict Sri B A Umesh is housed is on the North-Eastern side facing East in the Central Prison Hindalga. There are six cells each measuring 8x10 feet approximately. Each cell has a toilet in the corner with an adequate water facility. Each of the prisoners is given a flat mattress and they are at liberty to have their own bedding. There is electric light in each of the cells which can be put on at their wish and they have one window facing towards the West. The cells are covered with grill doors and adequate light and air is available. These six cells are of tiled roof. Encircling the six cells, there is guard room and another common toilet outside within the compound. Even in the compound of the barrack, there is a facility for washing of the clothes etc. It was informed that prison also has R.O. Water facility which would be provided in plastic pots. 3. Out of these six cells, five are occupied. In one of the cells, there are four persons involved in an offence of kidnapping, robbery, and murder. They are Siddhalingesh, Suraj, Akshay and Jameer. In another cell, there are two occupants viz., Sameer and Shakib, who are involved in offence under Section 307 of IPC. Another cell is occupied by Balu involved in a murder case. They are all under trial prisoners. 4. The Remaining two cells are occupied by one person each i.e, Akash Desai convicted for offence under NDPS Act for 10 years. Southern most cell is occupied by death convict Shri. B.A. Umesh. They informed that they are in the said cells for the last 3 months to 8 years. The other 26 death convicts are in other barracks including high security barrack, women barrack and a hospital. 5. The inmates of the cell informed that they are unlocked from the cells at about 6.00 a.m. They are allowed to wander in the compound of the barrack. The barrack is guarded by five guards and it was informed that they are free to wash their clothes and take bath outside and sit under the trees in the compound. There is also hospital block in the prison and if necessary, they will be escorted to the hospital where there is a Medical Officer available. Hospital also has inpatient facilities and mini laboratory is also adjoining it. The inmates also told me that they can talk to fellow prisoners and there are no restrictions during daytime. The cells will be locked again at 6.00 p.m. in the evening. 6. It is informed that breakfast is served at about 7.30 in the morning, lunch will be served at about 11.00 a.m. and supper would be served at 4.30 p.m. The inmates are free to consume the supper at any time they find it convenient and they can eat sitting together. All the inmates including Shri. B.A. Umesh informed that the quality of food is good and adequate. It was informed by the jail authorities that a minimum of five guards are posted in the barrack on a rotation basis. 7. It was also informed that in one of the cells there is a TV fixed which may be seen by all the inmates together. 8. It was also informed that prisoners are at liberty to purchase bakery items which are prepared by the inmates and sold in the prison itself. It was informed that the prisoners purchase the bakery items out of the earnings made by them. 9. Adjoining the said barrack of six cells, on the northern side, there is a gate leading to the gallows. There is no separate cell meant for death convict, who would be kept in the cell before he is taken to the gallows. 10. Thus it is observed that the cells have adequate light, air, drinking water facilities, a common facility to view TV, and adequate water for bathing and washing of the clothes. The cells are enclosed in a separate compound within the prison. They can move around the cells freely between 6.00 a.m. and 6.00 p.m. 11. The photographs and videos of the cells are attached with this report for kind perusal.” 8. On the subsequent date, the submissions advanced on behalf of the appellant were discussed in the order dated 26.4.2022 as “The Principal District and Sessions Judge, Belagavi has placed on record his Report dated 21.04.2022. Copies of the Report have been furnished to the parties. Dr. Yug Mohit Chaudhry, learned advocate submits that since the last date of hearing, the counsel for the petitioner have had interactions with the petitioner. Dr. Chaudhry fairly accepts that whatever is stated in the Report corresponds to the instructions received from the petitioner and that the Report depicts true state of affairs in the concerned Barrack and the Cell. He, however submits that the petitioner was kept in what is commonly called “Andheri Block” in Belagavi Prison from 2006 to October, 2016 i.e. till stay was granted by the High Court to the execution of death sentence. It is submitted that there are 12 Cells in that Block and only one prisoner is kept in a Cell; the petitioner was not allowed to get out of his Cell at any time during the entire length of stay except for 2 Yoga sessions which were conducted and one function where inmates were allowed to offer prayers to Lord Ayyappa. In his submission that was the worst period of his stay inside the prison and the imprisonment in the Cell in “Andheri Block” can certainly be said to be “Solitary confinement” as described in Sunil Batra Etc. vs Delhi Administration and Ors. Etc.5. Dr. Chaudhry further submits that after October, 2016 till January, 2019 the petitioner was lodged in same “Andheri Block” but was allowed to come out of the Cell thrice a day and after January, 2019 he was shifted to the present Barrack with respect to which the Report has been made. We have also had the benefit of interaction with the concerned Jail Superintendent who is present in Court. He has accepted that the petitioner was kept in “Andheri Block” till January, 2019. He has also accepted that only one inmate is kept in a cell in said “Andheri Block”. It is however, stated that all the inmates are allowed to come out of their cells thrice a day for the duration of 2-3 hours each. It is submitted that they are taken out at about 6.30 A.M. in the morning and are re-lodged after the breakfast, again to be taken out for the purposes of lunch and supper and are finally re-lodged around 5.00 P.M. In sum and substance, according to him, the inmates are allowed to come out of their Cells for about 6 hours everyday. It is further stated that the petitioner was shifted to the present Barrack in January, 2019 by his predecessor and since then the petitioner has been confined in the present Barrack in circumstances described in the Report. Thereafter, submissions were advanced by Mr. Nikhil Goel, learned AAG for the State and Ms. Sonia Mathur, learned Senior Advocate for Union of India. After conclusion of their submissions, Dr. Chaudhry made his submissions in rejoinder.…..” 9. We heard Dr. Yug Mohit Chaudhry, learned advocate assisted by Ms. Payoshi Roy, learned advocate for the appellant, Mr. Nikhil Goel, learned Additional Advocate General for the State and Ms. Sonia Mathur, learned Senior Advocate for Union of India. After conclusion of submissions, the matter was reserved for 10. The parties thereafter filed written submissions and, in the submissions filed on behalf of the appellant, the challenge has principally been raised on two grounds: (i) delay in deciding mercy petition and (ii) the Solitary Confinement that the appellant was subjected to. On the first issue, following chart has been placed on “Chunks of Unexplained Delay 1. 3.3.11 The Central Government forwards No explanation for why it took 1 the mercy petition to the State year, 2 months and 5 days (432 Government asking the Governor to days) to send a consider the mercy petition first. recommendation to the 7.5.12 A decision to reject the mercy Governor, or any account of petition is taken in the Cabinet what steps were taken to Meeting and recommendation is process the mercy petition sent to the Governor. during this period. 2. 6.6.12 The mercy petition is rejected by 2 months and 25 days (85 days) the Governor delay to forward the mercy 30.8.12 The State Government forwards the petition to the Central mercy petition for consideration by Government. the President. 3. 18.9.12 The Central Government seeks the 3 months and 9 days delay to following information from the send information that is readily State Government – available with the State (i) Copy of mercy petition Government. submitted by the Despite the Central condemned prisoner Government’s request that this himself, if any. information be sent at the (ii) Details of previous earliest (21.11.2012 letter), the criminal record. State Government still took (iii) Medical Health Report another 1 month. The fact that (iv) Nominal Roll. a reminder had to be sent by the 27.11.12 The Central Government sends a Central Government itself reminder letter to the State testifies to the delay. Government to send information 26.12.12 The State Government forwards the information requested vide letter 4. 15.5.13 The Central Government informs No explanation for the delay of the State Government about the 4 months and 20 days in rejection of mercy petition. deciding the mercy petition, or any account of what steps were Time Period Relevant to the Mercy Petition Adjudication Total Custody suffered till Date 2.3.1998-23.2.2021 22 years, 11 months, 22 days Total Custody suffered under 27.10.2006-23.2.2021 14 years, 3 months, 28 days Sentence of Death (5,234 days) Total Delay caused in Disposal 8.2.2011-15.5.2013 2 years, 3 months, 7 days (827 of Mercy Petition by State days) i.e. 2.26 years” Govt. and Govt. of India On the point of Solitary Confinement, it has been submitted:- “31. The Petitioner submits that he was kept in single cell from 2006 to 2016 in a block called the Andheri Block. During this time, he was kept for most of the day inside the cell. The only other person he saw was the prison guard. He was made to eat and use the toilet within his cell and was not allowed to meet or speak to any other inmates, to this entire duration he was allowed to participate in a pooja and a yoga camp only in one instance. Therefore from 2006-2016 the Petitioner was kept in strict solitary confinement. 32. The Petitioner concedes that after 2016 the conditions of his incarceration were gradually relaxed and at present, even though he is kept in a single cell, he is allowed to mingle with other inmates in the yard during the day. 33. The Petitioner submits that despite having pleaded the specific conditions of his solitary confinement till 2016 in his writ petition before the Hon’ble High Court as well as in his SLP before this Hon’ble Court the Respondent has not brought on record any material to the contrary. 34. In its reply dated 9.1.2017 before the Hon'ble High Court (SLP Pg 316-325) and before this Hon‘ble Court the Respondent has merely stated that the Petitioner was allowed visits to the library and canteen and allowed visitors from time to time and hence his incarceration did not constitute solitary confinement. 35. That neither before the High Court nor in its affidavit in reply before this Hon’ble Court did the Respondent aver that the Petitioner was allowed to mingle with other prisoners between 2006-2016. That had the Petitioner been allowed to mingle with other prisoners, the Respondents would have mentioned the same in their affidavit in reply along with the fact of visits to the library and canteen. Therefore, it is clear that the Respondent's oral argument made before this Hon'ble Court is nothing but an afterthought and sans any evidentiary basis. 36. Further, the statements made by the superintendent of Belagum Central Prison before this Hon‘ble Court only pertains to the conditions of incarceration after 2019, when the Superintendent assumed his duties in Belgaum Central Prison. These statements do not attest to the conditions of incarceration prior to 2019.” 11. In the written submissions filed on behalf of Union of India, it has been asserted: - It is submitted that the Petitioner has conceded that there is no inordinate delay on part of the Respondent No.1 in deciding the mercy petition. It is a settled position of law that there can be no specific time limit prescribed for deciding mercy petitions [See, Para 41-44 of Shatrughan Chauhan and Anr. v. Union of India and Ors.6] and only undue or inordinate delay is what is to be looked at [See, Para 16-17, Para 71-76 of Triveniben v. State of Gujarat7]. The time taken for collating the information and analyzing the same is not to be considered as undue. Further, it is also established that there can be no absolute or unqualified rule laid down for the purposes of determining delay in mercy petitions and several factors are required to be taken into account while considering the question as to whether the death sentence should be vacated or not [See, Para 19 of Sher Singh & Ors. v. State of Punjab8]. Every case is required to be considered on its own facts and circumstances. 01.02.2011 Conviction of the Petitioner and imposition of death sentence on him is confirmed by the Hon’ble Supreme 08.02.2011 Petitioner’s mother files a mercy petition on behalf of the Petitioner. 17.02.2011 Review Petition is filed against the Hon’ble Supreme Court judgement 07.09.2011 The Review Petition is dismissed. 06.06.2012 The Mercy Petition is rejected by the 30.08.2012 Mercy petition is forwarded by the Respondent No.2 to Respondent No.1. 18.09.2012, Respondent No.1 requests certain 27.11.2012 documents, including the medical health report of the Petitioner, to be sent by the Respondent No. 2. 26.12.2012 Respondent No. 2 replied to the letter dated 18.09.2012 providing the 12.05.2013 The Mercy Petition was rejected by the It is submitted that the delay, if any, on part of the Respondent No. 1 has to be calculated from 26.12.2012 [when the required information was sent to the Central Govt.] till 12.05.2013 [when the mercy petition was finally rejected]. This amounts to approximately 5 months, which cannot be considered as inordinate delay. In any-event, the Petitioner has himself conceded that the delay in considering the mercy petition is not on account of the Without prejudice to the above, it is further submitted that the Petitioner did not prefer a Writ Petition till 17.10.2016 against the order of rejection of mercy petition by the Hon’ble President that was done on 12.05.2013. This step of seeking a judicial review of the rejection of the mercy petition was only taken after the Review Petition was finally rejected by the Hon’ble Supreme Court after granting a hearing in Open Court. The Convict was protected by the stay on execution granted by this Hon’ble Court in Writ Petition No. 52 of 2011 (B.A. Umesh v. Registrar, Supreme Court of India). The Petitioner couldn't be placed on the same pedestal as a convict condemned to death as he still had a judicial avenue open and no real apprehension of execution. It is submitted that the aspect of solitary confinement, if any, of the Petitioner is within the purview of the State Government/ Respondent No. 2 and therefore, no specific submissions are being made in this regard on behalf of the Respondent No.1. In any event, vide order dated 21.04.2022, the Hon’ble Supreme Court had directed the District Judge, Belgaum, to conduct a local inspection of the jail, concentrating on the location of the barracks in which the cells of the Death Row Convicts are situated, and place a report before the Hon’ble Court along with pictures, if any. In terms of the same, a report was placed before the Hon’ble Court which clearly indicated that the Petitioner was not placed in solitary confinement. It is submitted that the relevant documents were duly considered by the Hon’ble President before rejecting the Mercy Petition of the Petitioner. The Mercy Petition was forwarded to Respondent No.1 on 30.08.2012 for consideration by the Hon’ble President under Article 72 of the Constitution of India along with the relevant documents. On 18.09.2012, Respondent No. 1 sought additional information/documents with regard to the Medical Health Report, details of previous criminal record and few other aspects concerning the Petitioner [Letter dated 18.09.2012 at page 17 of the Additional Documents filed by the Petitioner]. In response to the said letter, the required documents/information was sent by the Respondent No. 2 vide letter dated 26.12.2012, including medical report of the Petitioner dated 05.10.2012 [Letter dated 26.12.2012 at page 19 of the Additional Documents filed by the 12. We now consider the first submission regarding delay in execution of death sentence due to pendency of Mercy Petition(s). At this stage, we may refer to the following passage from the three Judge Bench decision of this Court in Ajay Kumar Pal v. Union of India & Anr.9 (to which one of us was a party) which noted some of the decisions rendered by this Court on the point: “7. The question whether delay in execution of death sentence can be a sufficient ground or reason for substituting such sentence by life imprisonment has engaged the attention of this Court over a period of time. Some of those salient instances are: 7.1. In T.V. Vatheeswaran v. State of Tamil Nadu10, in an appeal arising from the Judgment of the High Court confirming the death sentence, the fact that the appellant was awarded death sentence by the first court eight years earlier, was noted by this Court. After referring to few earlier cases, where such delay during the pendency of the appellate proceedings was considered, it was observed: (SCC pp. 78-79, paras 21-21) "20. . . . In the United States of America where the right to a speedy trial is a constitutionally guaranteed right, the denial of a speedy trial has been held to entitle an accused person to the dismissal of the indictment or the vacation of the sentence (vide Strunk v. United States [1973] 37 L.Ed. 56). Analogy of American Law is not permissible, but interpreting our Constitution sui generis, as we are bound to do, we find no impediment in holding that the dehumanising factor of prolonged delay in the execution of a sentence of death has the constitutional implication of depriving a person of his life in an unjust, unfair and unreasonable way as to offend the constitutional guarantee that no person shall be deprived of his life or personal liberty except according to procedure established by law. The appropriate relief in such a case is to vacate the sentence of death. 21. . . . Making all reasonable allowance for the time necessary for appeal and consideration of reprieve, we think that delay exceeding two years in the execution of a sentence of death should be considered sufficient to entitle the person under sentence of death to invoke Article 21 and demand the quashing of the sentence of death. We therefore accept the special leave petition, allow the appeal as also the Writ Petition and quash the sentence of death. In the place of the sentence of death, we substitute the sentence of imprisonment for life." 7.2. Sher Singh and others v. State of Punjab8 was a case where the death sentence already stood confirmed by dismissal of appeal and review petition therefrom by this Court. Relying on the observations in Vatheeswaran10, delay in execution was projected as a ground in a petition under Article 32 of the Constitution of India. Though the Court was broadly in agreement with observations in Vatheeswaran10 it did not agree with the statement to the effect: (SCC p. 79, para 21) "21. . . . that delay exceeding two years in the execution of sentence of death should be considered sufficient to entitle the person under sentence to death to invoke Article 21 and demand the questioning of the sentence of death." However, in the context of Mercy Petitions and exercise of power in connection thereto, it was observed in para 23 as under: (Sher Singh Case8, SCC "23. We must take this opportunity to impress upon the Government of India and the State Governments that petitions filed under Articles 72 and 161 of the Constitution or under Sections 432 and 433 of the Criminal Procedure Code must be disposed of expeditiously. A self- imposed rule should be followed by the executive authorities rigorously, that every such petition shall be disposed of within a period of three months from the date on which it is received. Long and interminable delays in the disposal of these petitions are a serious hurdle in the dispensation of justice and indeed, such delays tend to shake the confidence of the people in the very system of justice. Several instances can be cited, to which the record of this Court will bear testimony, in which petitions are pending before the State Governments and the Government of India for an inexplicably long period. Undoubtedly, the executive has the power, in appropriate cases, to act under the aforesaid provisions but, if we may remind, all exercise of power is preconditioned by the duty to be fair and quick. Delay defeats justice." 7.3. The issue was settled by the Constitution Bench decision in Triveniben v. State of Gujarat7, where it was concluded "No fixed period of delay could be held to make the sentence of death inexecutable ...". The scope and ambit of exercise of jurisdiction in such cases was delineated thus in para 22: (SCC p. 697) "22. . . . the only jurisdiction which could be sought to be exercised by a prisoner for infringement of his rights can be to challenge the subsequent events after the final judicial verdict is pronounced and it is because of this that on the ground of long or inordinate delay a condemned prisoner could approach this Court and that is what has consistently been held by this Court. But it will not be open to this Court in exercise of jurisdiction under Article 32 to go behind or to examine the final verdict reached by a competent court convicting and sentencing the condemned prisoner and even while considering the circumstances in order to reach a conclusion as to whether the inordinate delay coupled with subsequent circumstances could be held to be sufficient for coming to a conclusion that execution of the sentence of death will not be just and proper. The nature of the offence, circumstances in which the offence was committed will have to be taken as found by the competent court while finally passing the verdict. It may also be open to the court to examine or consider any circumstances after the final verdict was pronounced if it is considered relevant. The question of improvement in the conduct of the prisoner after the final verdict also cannot be considered for coming to the conclusion whether the sentence could be altered on that ground also." 7.4. In Shatrughan Chauhan6 after considering law on the point as regards delay in execution of the death sentence and the resultant effect, as also the scope and ambit of exercise of power, it was observed in paras 38, 41 and 42 as under: (SCC pp. 38-39) "44. In view of the above, we hold that undue long delay in execution of sentence of death will entitle the condemned prisoner to approach this Court under Article 32. However, this Court will only examine the circumstances surrounding the delay that has occurred and those that have ensued after sentence was finally confirmed by the judicial process. This Court cannot reopen the conclusion already reached but may consider the question of inordinate delay to decide whether the execution of sentence should be carried out or should be altered into imprisonment for life. 47. It is clear that after the completion of the judicial process, if the convict files a mercy petition to the Governor/President, it is incumbent on the authorities to dispose of the same expeditiously. Though no time limit can be fixed for the Governor and the President, it is the duty of the executive to expedite the matter at every stage, viz., calling for the records, orders and documents filed in the court, preparation of the note for approval of the Minister concerned, and the ultimate decision of the constitutional authorities. This court, in Triveniben7, further held that in doing so, if it is established that there was prolonged delay in the execution of death sentence, it is an important and relevant consideration for determining whether the sentence should be allowed to be executed or not. 48. Accordingly, if there is undue, unexplained and inordinate delay in execution due to pendency of mercy petitions or the executive as well as the constitutional authorities have failed to take note of/consider the relevant aspects, this Court is well within its powers under Article 32 to hear the grievance of the convict and commute the death sentence into life imprisonment on this ground alone however, only after satisfying that the delay was not caused at the instance of the accused himself. To this extent, the jurisprudence has developed in the light of the mandate given in our Constitution as well as various Universal Declarations and directions issued by the United Nations." 13. In Ajay Kumar Pal9 the delay in question was three years and ten months which was found to be inordinate and that said delay was not to the account of said petitioner but to the account of the functionaries and authorities in question. Pertinently, the matter was also considered from the standpoint of solitary confinement and violations in that behalf. 14. Paras 44 and 48 of the decision of this Court in Shatrughan Chauhan6 which were quoted in Ajay Kumar Pal9, had laid down that undue long delay in execution of death sentence would entitle the condemned prisoner to pray for commuting the death sentence to that of life imprisonment. The individual cases were thereafter dealt with in Shatrughan Chauhan6 and paragraph 105 onwards of said decision show that in cases where there was a delay of 12 years (para 118), 9 ½ years (Para 137), 9 ½ years (Para 147), 7 years and 8 months (Para 161), 5 years and 8 months (Para 175) and 7 years and 5 months (Para 209), the benefit of commutation was extended by this Court. 15. If the instant matter is considered in light of these cases and the settled principles, the alleged period in the instant matter is of two years and three months i.e., starting from the receipt of the mercy petition on 3.3.2011 by the Central Government till the disposal on 15.5.2013. It must be stated that soon after the receipt of the said mercy petition, the Ministry of Home Affairs, Government of India forwarded the mercy petition to the Principal Secretary, Home Department, Karnataka so that the Governor, Karnataka could consider the mercy petition first. In the meantime, on 9.3.2011 in Writ Petition No.52 of 2011 preferred by the appellant, this Court had granted stay of execution of death The matter was considered by the State Cabinet on 7.5.2012 which decided to approve the note prepared by the Home Department recommending rejection of the mercy petition. The matter was then placed before the Hon’ble Governor who rejected the mercy petition on 06.06.2012. The copy of the order passed by the Hon’ble Governor and relevant documents were forwarded by the State Government to the Central Government on On 18.09.2012, certain information was sought by the Central Government from the State Government which was furnished to the Central Government on 26.12.2012. The matter was thereafter taken up at the Central Government level. The Ministry of Home Affairs prepared an appropriate note for the Hon’ble President who after considering the entirety of the matter rejected the mercy petition on 12.05.2013. 16. Thus, the entire period beginning from 03.03.2011 to 15.05.2013 spanning over a period of 2 years and 3 months saw disposal of mercy petition at two different levels, one, by the Hon’ble Governor and other by the Hon’ble President. All the while, there was an order of stay granted by this Court on 19.3.2011 which was operating all through. 17. First and foremost, the time taken by each of these authorities and the functionaries assisting them cannot be called or termed as “inordinate delay” and secondly, it was not as if every passing day was adding to the agony of appellant. The order of stay of execution had put the matter in a different perspective. In the given facts and circumstances of the case, in our view, the first submission does not merit acceptance. We are conscious of the fact that in a recent decision in A.G. Perarivalan vs. State through Superintendent of Police & Anr.11, a Bench of three judges of this court commuted the sentence of death to life as the petition preferred under Article 161 of the Constitution had remained pending for two and half years with the Hon’ble Governor, despite the recommendations of the State Cabinet for remission of the sentence. In that case no decision was taken by the Hon’ble Governor in spite of the recommendations of the State Cabinet and as such the benefit of commutation was extended. The facts which came up for consideration in said decision thus stand on a completely different footing as against the instant 18. We now move to the second submission pertaining to solitary confinement of the appellant. Reliance in this behalf has been placed on the decision of this Court in Sunil Batra vs. Delhi Administration & Ors.5; and also on the decision of Ajay Kumar Pal9 in which segregation of the concerned petitioner, from the day he was awarded death sentence till his mercy petition was disposed of, was taken to be in violation of the law laid down by this Court in Sunil Batra5 and the death sentence was commuted to life on both counts, namely; inordinate delay in considering the mercy petition and the solitary confinement that the concerned petitioner was subjected to. 19. In the instant case, the letter written by Medical Officer, Belgaum Central Prison on 6.11.2011 did say that the appellant was kept in solitary confinement and said letter has been heavily relied upon by the appellant in support of the second submission. According to the letter, the appellant was kept in solitary confinement since his admission to the prison in October, 2006 and that apart from common illness such as diarrhoea, fever, running nose and backache, the appellant was found to be suffering from psychosis with depression. Pertinently, on 8.11.2011, a letter was sent by the Chief Superintendent, Belagavi Central Prison to Additional DGP and IG Prisons, Karnataka to the following effect: - “….. With respect to the above subject, we submit, that the death penalty convict no. 307, Umesh B.R. son of Ajjappa Reddy’s appeal petition was rejected by the Hon’ble Supreme Court, New Delhi and a letter confirming his death sentence has been sent to this office as mentioned in the reference. The said subject matter and processes have been explained in detail several times to the convict in the presence of all officers, but as the convict is mentally ill he is not agreeing to submit any more mercy petitions. So we have not received any mercy petitions from him. The convict was examined by the Prison Doctors and have given a medical report which is attached with this letter for your perusal and for further This letter also affirms the fact that the appellant was mentally ill. 20. The act on part of the medical officer in checking the health and well-being of the appellant was obviously because of the mandate of Section 29 of the Prisons Act, 1894 which is to the following effect: - “29. Solitary confinement. – No cell shall be used for solitary confinement unless it is furnished with the means of enabling the prisoner to communicate at any time with an officer of the prison, and every prisoner so confined in a cell for more than twenty-four hours, whether as a punishment or otherwise, shall be visited at least once a day by the Medical Officer or Medical Subordinate.” It must, therefore, be taken to be accepted that from 2006 till 2016, the appellant was kept in solitary confinement in “Andheri Block” and it was only thereafter, some relaxation in the rigours of the solitary confinement was effected and as the record shows, from 2016 onwards the conditions were gradually relaxed. 21. The law on the point, as declared in Sunil Batra5 is very clear and as was held by this Court in Ajay Kumar Pal9, segregation of a convict from the day when he was awarded death sentence till his mercy petition was disposed of, would be in violation of law laid down by this Court in Sunil Batra5. In the instant case, the death sentence was awarded to the appellant in 2006 by the trial Court and the mercy petition was finally disposed of by the Hon’ble President on 12.5.2013, which means that the incarceration of the appellant in solitary confinement and segregation from 2006 to 2013 was without the sanction of law and completely opposed to the principles laid down by this Court 22. In Ajay Kumar Pal9, on the issue of segregation of the convict in violation of the principles laid down in Sunil Batra5, this Court observed: - “9. Furthermore, as submitted in the petition, the petitioner has all the while been in solitary confinement i.e. since the day he was awarded death sentence. While dealing with Section 30(2) of the Prisons Act, 1894, which postulates segregation of a person “under sentence of death” Krishna Iyer, J. in Sunil Batra5 observed: (SCC p. 563, para 197-A) “197-A. (5) The crucial holding under Section 30(2) is that a person is not ‘under sentence of death’, even if the sessions court has sentenced him to death subject to confirmation by the High Court. He is not ‘under sentence of death’ even if the High Court imposes, by confirmation or fresh appellate infliction, death penalty, so long as an appeal to the Supreme Court is likely to be or has been moved or is pending. Even if this Court has awarded capital sentence, Section 30 does not cover him so long as his petition for mercy to the Governor and/or to the President permitted by the Constitution, Code and Prison Rules, has not been disposed. Of course, once rejected by the Governor and the President, and on further application there is no stay of execution by the authorities, he is ‘under sentence of death’, even if he goes on making further mercy petitions. During that interregnum he attracts the custodial segregation specified in Section 30(2), subject to the ameliorative meaning assigned to the provision. To be ‘under sentence of death’ means ‘to be under a finally executable death sentence’.” (emphasis in original) Speaking for the majority in the concurring judgment D.A. Desai, J. stated thus : (Sunil Batra case5, SCC p. 572, para “223. The expression ‘prisoner under sentence of death’ in the context of sub-section (2) of Section 30 can only mean the prisoner whose sentence of death has become final, conclusive and indefeasible which cannot be annulled or voided by any judicial or constitutional procedure. In other words, it must be a sentence which the authority charged with the duty to execute and carry out must proceed to carry out without intervention from any outside authority.” 10. In the light of the enunciation of law by this Court, the petitioner could never have been “segregated” till his mercy petition was disposed of. It is only after such disposal that he could be said to be under a finally executable death sentence. The law laid down by this Court was not adhered to at all while confining the petitioner in solitary confinement right since the order of death sentence by the first court. In our view, this is complete transgression of the right under Article 21 of the Constitution causing incalculable harm to the petitioner. 11. The combined effect of the inordinate delay in disposal of mercy petition and the solitary confinement for such a long period, in our considered view has caused deprivation of the most cherished right. A case is definitely made out under Article 32 of the Constitution of India and this Court deems it proper to reach out and grant solace to the petitioner for the ends of justice. We, therefore, commute the sentence and substitute the sentence of life imprisonment in place of death sentence awarded to the petitioner. The writ petition thus stands allowed.” 23. In its jurisdiction under Article 32 of the Constitution of India, this Court had thus deemed it proper to reach out and grant solace to the petitioner on both grounds, namely, delay in disposal of mercy petition and solitary confinement for a long period. The period of solitary confinement in Ajay Kumar Pal9 in violation of the law laid down in Sunil Batra5 was from 2007 till 2014, i.e., for nearly seven years. In the instant case, the period of solitary confinement is for about ten years and has two elements: one, from 2006 till the disposal of mercy petition in 2013; and secondly from the date of such disposal till 2016. The question then arises: whether on this ground alone, the appellant is entitled to have the death sentence commuted? 24. In Shatrughan Chauhan6, solitary confinement was accepted and recognised as one of the grounds on the basis of which death sentence can be commuted. However, in the batch of matters under consideration in Shatrughan Chauhan6, no benefit was granted to any of the convicts on this ground. Paragraph 88 onwards, the effect of the law laid down by this Court in Sunil Batra5 and other cases was noticed and it was concluded “90. It was, therefore, held in Sunil Batra case5, that the solitary confinement, even if mollified and modified marginally, is not sanctioned by Section 30 of the Prisons Act for prisoners “under sentence of death”. The crucial holding under Section 30(2) is that a person is not “under sentence of death”, even if the Sessions Court has sentenced him to death subject to confirmation by the High Court. He is not “under sentence of death” even if the High Court imposes, by confirmation or fresh appellate infliction, death penalty, so long as an appeal to the Supreme Court is likely to be or has been moved or is pending. Even if this Court has awarded capital sentence, it was held that Section 30 does not cover him so long as his petition for mercy to the Governor and/or to the President permitted by the Constitution, has not been disposed of. Of course, once rejected by the Governor and the President, and on further application, there is no stay of execution by the authorities, the person is under sentence of death. During that interregnum, he attracts the custodial segregation specified in Section 30(2), subject to the ameliorative meaning assigned to the provision. To be “under sentence of death” means “to be under a finally executable death sentence”. 91. Even in Triveniben v. State of Gujarat7, this Court observed that keeping a prisoner in solitary confinement is contrary to the ruling in Sunil Batra5 and would amount to inflicting “additional and separate” punishment not authorised by law. It is completely unfortunate that despite enduring pronouncement on judicial side, the actual implementation of the provisions is far from reality. We take this occasion to urge to the Jail Authorities to comprehend and implement the actual intent of the verdict in Sunil Batra v. Delhi Admn.5.” 25. The benefit of commutation was, however, granted in Ajay Kumar Pal9 on the ground that the solitary confinement was against the principles laid down in Sunil Batra5 and also on the ground of delay. Having considered the entirety of matter, in our view, the impact of solitary confinement were obviously evident in the instant case, as would be clear from the letter given by the medical professional on 6.11.2011 and the communication emanating from the jail on 8.11.2011. The incarceration in solitary confinement thus did show ill effects on the well-being of the appellant. In the backdrop of these features of the matter, in our view, the appellant is entitled to have the death sentence imposed upon him to be commuted to death sentence to life. 26. At this stage, we may refer to a recent decision by a three- Judge Bench in Mohd. Mannan alias Abdul Mannan vs. State of Bihar12, where while accepting the review petition, the sentence of death was commuted to imprisonment for life. However, it was observed in paragraphs 87 and 88 as under: - “87. Even though life imprisonment means imprisonment for entire life, convicts are often granted reprieve and/or remission of sentence after imprisonment of not less than 14 years. In this case, considering the heinous, revolting, abhorrent and despicable nature of the crime committed by the petitioner, we feel that the petitioner should undergo imprisonment for life, till his natural death and no remission of sentence be granted to him. 88. We, therefore, commute the death sentence imposed on the petitioner to life imprisonment, till his natural death, without reprieve or remission.” 27. Considering the entirety of facts and circumstances on record, in our view, ends of justice would be met if while commuting the death sentence awarded to the appellant, we impose upon him sentence of life imprisonment with a rider that he shall undergo minimum sentence of 30 years and if any application for remission is moved on his behalf, the same shall be considered on its own merits only after he has undergone actual sentence of 30 years. If no remission is granted, it goes without saying that as laid down by this Court in Gopal Vinayak Godse vs. State of Maharashtra13, the sentence of imprisonment for life shall mean till the remainder of his life. 28. The appeal is allowed accordingly. 29. Before we part, we must observe that the instruction quoted in paragraph 3(f) of this Judgment leads to an incongruous situation. According to it, the mercy petition must be filed within seven days of the disposal of the appeal or dismissal of special leave petition. A convicted accused is entitled to file a review petition within thirty days. An anomalous situation, like the present one, may arise where even before the review is filed, the mercy petition is required to be filed. The concerned instruction requires suitable modification so as to enable the convicted accused to file mercy petition after exhaustion of remedies in Court of law. Date : 04-11-2022 This appeal was called on for pronouncement of Judgment today. UPON hearing the counsel the Court made the following Hon’ble the Chief Justice of India pronounced the Reportable Judgment of the Bench comprising Hon’ble the Chief Justice of India, Hon’ble Mr. Justice S. Ravindra Bhat and Hon’ble Mr. Justice The operative portion of the judgment reads as under: “1. Leave granted. 27. Considering the entirety of facts and circumstances on record, in our view, ends of justice would be met if while commuting the death sentence awarded to the appellant, we impose upon him sentence of life imprisonment with a rider that he shall undergo minimum sentence of 30 years and if any application for remission is moved on his behalf, the same shall be considered on its own merits only after he has undergone actual sentence of 30 years. If no remission is granted, it goes without saying that as laid down by this Court in Gopal Vinayak Godse vs. State of Maharashtra1, the sentence of imprisonment for life shall mean till the remainder of his life. 28. The appeal is allowed accordingly. 29. Before we part, we must observe that the instruction quoted in paragraph 3(f) of this Judgment leads to an incongruous situation. According to it, the mercy petition must be filed within seven days of the disposal of the appeal or dismissal of special leave petition. A convicted accused is entitled to file a review petition within thirty days. An anomalous situation, like the present one, may arise where even before the review is filed, the mercy petition is required to be filed. The concerned instruction requires suitable modification so as to enable the convicted accused to file mercy petition after exhaustion of remedies in Court of law.” Pending applications, if any, also stand disposed of. (Signed Reportable Judgment is placed on the File)
The Supreme Court changed the death sentence of a person convicted of murder. They did this because he was illegally kept in solitary confinement for about ten years. BA Umesh, also known as Umesh Reddy, was a former police officer. A local court in Bengaluru sentenced him to death in 2006 after he was found guilty of rape and murder. He was convicted of raping and murdering a housewife. The Supreme Court later confirmed his death sentence in 2011. The President of India turned down his request for mercy. He then went to the Karnataka High Court to challenge this decision. When the High Court rejected his legal request, he went to the Supreme Court. At the Supreme Court, Umesh's lawyers argued that he was kept in solitary confinement in a special cell called "Andheri Block" from 2006 to 2016. This was against a past Supreme Court ruling from a case called Sunil Batra vs. Delhi Administration & Others (1978). His lawyers also pointed to another case, Ajay Kumar Pal vs Union of India (2015). In that case, another person's death sentence was changed because they had been kept alone from the day they were sentenced to death until their request for mercy was decided. The court in that case said this was also against the law established in the Sunil Batra case. The court looked at this argument and all the other important documents shown to them. They then stated: "After considering everything in this case, we believe that the negative effects of solitary confinement were very clear. This is evident from a letter written by a doctor on November 6, 2011, and a report from the jail on November 8, 2011. Being held in solitary confinement clearly caused harm to Umesh's health and well-being. Given these facts, we believe that Umesh deserves to have his death sentence changed to life imprisonment." So, the court changed the death sentence to life imprisonment. However, they added a condition: he must serve a minimum of 30 years in prison. The court also added: "If someone asks for his early release from prison, that request will only be looked at fairly after he has served 30 years. If early release is not given, it means that, as this Court has decided before, a life sentence means he will stay in prison for the rest of his life."
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Hiqh Court of ludic a t u re at A ah a bad Functioninq of High Court during COVID-l9 ln suppression of all earlier direction / guidelines the Modalities & Arrangement as per following details will be effective w.e.f. 01.03.2021 - 1. The High Court will function as usual and all the Courts will function in routine manner. 2. The Hon'ble Judges and their supporting staff (Private Secretary, Bench Secretary, Peon etc.) will attend the High Court in full strength. 3. The sections of the Court will be opened in routine manner and the Officers, Officials & Staff will attend the High Court in full strength. 4. The Learned Advocates will file their Cases / Documents / Petitions / Applications in e-mode or in physical form in the Stamp Reporting Section and the Application Section, at Counters located In the premises of the High Court as per arrangement prior to the 5. There shall be no requirement of Urgency Applications for listing of Listed matters. 6. The defects reported by the Stamp Reporting Sections in fresh cases shall be cured as per the arrangement which was existing before 18.03.2020. 7. The Listed matters shall continue to be listed in Additional Cause List and Daily Cause List shall not be printed i published till further orde rs. 8. The Photo-Affidavit Centre will start functioning in routine manner w.e.f.01.03.2021. 9. The Counters will function outside the premises of the High Court to charge Court Fee through e-mode. 10. The work-flow for e-Filing along with the screen shots is already available on the ofticial website of Allahabad High Court namely www.allahabadhighcourt.in and the same may be accessed by the Advocates who are facing problem in this regard. 11. The files will be sent from the sections to the Hon'ble Courts after proper sanitization. L2. The Gates of the High Court will be opened as following for entry / o2 Gate No. 2 Main Building Entry / Exit of Hon'ble 03. Gate No. 3 Main Building Entry of Employees, of High Court. 04. Gate No. 3-A Main Building Entry of Employees, of High Court. 05. Gate No. 3-B Main Building Exit of Employees, of High Court. 06 Gate No. 4 Main Building Exit of Employees, of High Court. o7 Gate No. 5 Main Building Entry of Employees, of High Court. 10. Gate No. I C.l.T. Building Entry / Exit of Employees of High Court. 11. Gate No. 9 Mediation Entry / Exit of Employees Centre Advocates A tnei'r ilerf s Building of High Court. t2. Back Gate 30 Court Entry / Exit of Hon'ble 13. Front Gate 30 Court Entry / Exit of Hon'ble 13. Only those Learned Advocates will enter in the High Court through E-Pass, whose case(s) are to be taken by the Hon,ble Court(s). Such Learned Advocates will enter in the High Court through Gates as specified at Serial No. 13. 14. The Litigant-ln-Person will be permitted to physically appear before the Court. The Gate-pass will be issued to them, if required. 15. Any person desirous of joining Court proceedings through Video_ Conferencing shall have to send an email indicating his/her mobile number along with case details (parties, Name, Nature Case Number, Year etc.) and his email id with a request provided a Video Conferencing link to enable him proceedings. This email has to be lodged with the later than 1:00 p.M. one working day before the date of hearing. The e-mail id is:- request_vc_alld@a llahabadhig hcourt.in. It is clarified that the counsel on record/AcA"/Counsel for the Respondent is not permitted to share the Video link with any other individual except with those who are disclosed as representing the party on the e-flle/petition/application. Not more than two advocates for a party shall be permitted on the video platform of actual hearing. The Video Conference Software works best on 16. ln all such matters where petition has been filed in hard copies, and an application, Counter Affidavit etc. is required to be filed, such applications / objections etc. can be filed in e_filing module. Link of the same is avairabre on the officiar website of Ailrahabad 17. The chambers of Learned Advocates in the High court premises will be opened w.e.f.0I.03.2021. 18. The cleiks to the Advocates if they possess varid gate pass wiil be permitted entry in the High Court. 19. No Litigants will be permitted entry in the High Court. 20. The Canteens of the Advocates and the Employees, Canteen situated in the High Court premises function in routine manner. 21. The Advocates and the staff wifl not be permitted to roam in the Hon'ble Judges' Corridor / Gallery (Ground Floor and First Floor). 22. The Hon'ble Judges and the Learned Lawyers will wear Robes and Coat as prescribed in routine manner. 23. The Learned Advocates appearing in the Court will wear mask and will adhere to all necessary conditions prescribed for social and physical d istancing. 24. Not more than 6 (Six) Advocates will be permitted to remain in the Court Room at any given time. 25. The Learned Advocates shall leave the Court Room immediately after hearing of their case(s). 26. No person shall be allowed to enter in the High Court campus without observing all protocol necessary to maintain social and physical distancing. 27. Consumption of liquor, ,paan,, ,gutka,, tobacco inside the premises of the High Court will be prohibited and consumption of the same will attract punishment. 28. spitting in the premises of the High court is prohibited and will attract punishment. 29' Provision of handwash and sanitizer wi be made avairabre at operational entry, exit points and in common area. 30. The Chief Medical & Health Officer, prayagraj and Lucknow respectively shall arrange all necessary medical assistance and attendance in the High court campus at Aflahabad and Lucknow to meet any urgent medical eventuality. 31. Frequent sanitization of the premises of the High Court, common facirities and all points which come into human contact viz. door- knobs, chairs, tables etc. will be ensured. 32. Parking of vehicles to be made as per existing arrangement i.e. outside the premises of the High Court but with proper social distancing measures. 33. All the guidelines regarding COVID_19 issued by the Central Government, Government of Uttar pradesh and the High Court of Judicature at Alrahabad wiil be fo[owed by ail concerned stricily.
The Allahabad High Court will go back to working normally starting March 1, 2021. Chief Justice Govind Mathur has ordered that court cases will be heard in person again from that date. To make this happen, all Judges and their staff will be at the High Court, as usual. Here are the rules for how things will work: Lawyers can only enter the High Court with an e-pass if their case is scheduled for that day. Employees, lawyers, and their clerks can enter through Gates 3, 3A, and 5 of the Main Building. They can leave through Gates 3B and 4 of the Main Building. Gate 9 of the Mediation Centre Building can be used for both entering and leaving by employees, lawyers, and their clerks. People involved in lawsuits (litigants) cannot come into the High Court unless they are representing themselves. Only up to six lawyers can be in a courtroom at once. The High Court will still allow court hearings through video calls for now. Anyone who wants to join a court hearing by video call must send an email. This email needs to include their phone number, details about the case (like who is involved, the case name, type, number, and year), and their own email address. They should ask for a video conferencing link to join the hearing. This email must be sent to the High Court by 1:00 PM on the working day before the hearing date. The email address for this is: [email protected] Lawyers can submit their case documents online or in person. They should go to the Stamp Reporting Section and the Application Section counters inside the High Court, just like they did before the lockdown. They will not need to file special "Urgency Applications" to get cases that are already scheduled listed. If the Stamp Reporting Section finds mistakes in new cases, those mistakes must be fixed following the rules that were in place before March 18, 2020, which was before the pandemic. Cases that are already set for hearing will still appear on the "Additional Cause List." The regular "Daily Cause List" will not be printed or published until new orders are given. There will be counters outside the High Court where people can pay court fees online. The Photo-Affidavit Centre will open and work normally from March 1, 2021. Lawyers' offices inside the High Court will also open from March 1, 2021. The canteens for lawyers and employees inside the High Court will work as usual. Judges and lawyers will wear their traditional robes and coats, as they normally do. Cars must be parked as they were before, meaning outside the court building, while also keeping social distance.
Hiqh Court of ludic a t u re at A ah a bad Functioninq of High Court during COVID-l9 ln suppression of all earlier direction / guidelines the Modalities & Arrangement as per following details will be effective w.e.f. 01.03.2021 - 1. The High Court will function as usual and all the Courts will function in routine manner. 2. The Hon'ble Judges and their supporting staff (Private Secretary, Bench Secretary, Peon etc.) will attend the High Court in full strength. 3. The sections of the Court will be opened in routine manner and the Officers, Officials & Staff will attend the High Court in full strength. 4. The Learned Advocates will file their Cases / Documents / Petitions / Applications in e-mode or in physical form in the Stamp Reporting Section and the Application Section, at Counters located In the premises of the High Court as per arrangement prior to the 5. There shall be no requirement of Urgency Applications for listing of Listed matters. 6. The defects reported by the Stamp Reporting Sections in fresh cases shall be cured as per the arrangement which was existing before 18.03.2020. 7. The Listed matters shall continue to be listed in Additional Cause List and Daily Cause List shall not be printed i published till further orde rs. 8. The Photo-Affidavit Centre will start functioning in routine manner w.e.f.01.03.2021. 9. The Counters will function outside the premises of the High Court to charge Court Fee through e-mode. 10. The work-flow for e-Filing along with the screen shots is already available on the ofticial website of Allahabad High Court namely www.allahabadhighcourt.in and the same may be accessed by the Advocates who are facing problem in this regard. 11. The files will be sent from the sections to the Hon'ble Courts after proper sanitization. L2. The Gates of the High Court will be opened as following for entry / o2 Gate No. 2 Main Building Entry / Exit of Hon'ble 03. Gate No. 3 Main Building Entry of Employees, of High Court. 04. Gate No. 3-A Main Building Entry of Employees, of High Court. 05. Gate No. 3-B Main Building Exit of Employees, of High Court. 06 Gate No. 4 Main Building Exit of Employees, of High Court. o7 Gate No. 5 Main Building Entry of Employees, of High Court. 10. Gate No. I C.l.T. Building Entry / Exit of Employees of High Court. 11. Gate No. 9 Mediation Entry / Exit of Employees Centre Advocates A tnei'r ilerf s Building of High Court. t2. Back Gate 30 Court Entry / Exit of Hon'ble 13. Front Gate 30 Court Entry / Exit of Hon'ble 13. Only those Learned Advocates will enter in the High Court through E-Pass, whose case(s) are to be taken by the Hon,ble Court(s). Such Learned Advocates will enter in the High Court through Gates as specified at Serial No. 13. 14. The Litigant-ln-Person will be permitted to physically appear before the Court. The Gate-pass will be issued to them, if required. 15. Any person desirous of joining Court proceedings through Video_ Conferencing shall have to send an email indicating his/her mobile number along with case details (parties, Name, Nature Case Number, Year etc.) and his email id with a request provided a Video Conferencing link to enable him proceedings. This email has to be lodged with the later than 1:00 p.M. one working day before the date of hearing. The e-mail id is:- request_vc_alld@a llahabadhig hcourt.in. It is clarified that the counsel on record/AcA"/Counsel for the Respondent is not permitted to share the Video link with any other individual except with those who are disclosed as representing the party on the e-flle/petition/application. Not more than two advocates for a party shall be permitted on the video platform of actual hearing. The Video Conference Software works best on 16. ln all such matters where petition has been filed in hard copies, and an application, Counter Affidavit etc. is required to be filed, such applications / objections etc. can be filed in e_filing module. Link of the same is avairabre on the officiar website of Ailrahabad 17. The chambers of Learned Advocates in the High court premises will be opened w.e.f.0I.03.2021. 18. The cleiks to the Advocates if they possess varid gate pass wiil be permitted entry in the High Court. 19. No Litigants will be permitted entry in the High Court. 20. The Canteens of the Advocates and the Employees, Canteen situated in the High Court premises function in routine manner. 21. The Advocates and the staff wifl not be permitted to roam in the Hon'ble Judges' Corridor / Gallery (Ground Floor and First Floor). 22. The Hon'ble Judges and the Learned Lawyers will wear Robes and Coat as prescribed in routine manner. 23. The Learned Advocates appearing in the Court will wear mask and will adhere to all necessary conditions prescribed for social and physical d istancing. 24. Not more than 6 (Six) Advocates will be permitted to remain in the Court Room at any given time. 25. The Learned Advocates shall leave the Court Room immediately after hearing of their case(s). 26. No person shall be allowed to enter in the High Court campus without observing all protocol necessary to maintain social and physical distancing. 27. Consumption of liquor, ,paan,, ,gutka,, tobacco inside the premises of the High Court will be prohibited and consumption of the same will attract punishment. 28. spitting in the premises of the High court is prohibited and will attract punishment. 29' Provision of handwash and sanitizer wi be made avairabre at operational entry, exit points and in common area. 30. The Chief Medical & Health Officer, prayagraj and Lucknow respectively shall arrange all necessary medical assistance and attendance in the High court campus at Aflahabad and Lucknow to meet any urgent medical eventuality. 31. Frequent sanitization of the premises of the High Court, common facirities and all points which come into human contact viz. door- knobs, chairs, tables etc. will be ensured. 32. Parking of vehicles to be made as per existing arrangement i.e. outside the premises of the High Court but with proper social distancing measures. 33. All the guidelines regarding COVID_19 issued by the Central Government, Government of Uttar pradesh and the High Court of Judicature at Alrahabad wiil be fo[owed by ail concerned stricily.
The Allahabad High Court will go back to working normally starting March 1, 2021. Chief Justice Govind Mathur has ordered that court cases will be heard in person again from that date. To make this happen, all Judges and their staff will be at the High Court, as usual. Here are the rules for how things will work: Lawyers can only enter the High Court with an e-pass if their case is scheduled for that day. Employees, lawyers, and their clerks can enter through Gates 3, 3A, and 5 of the Main Building. They can leave through Gates 3B and 4 of the Main Building. Gate 9 of the Mediation Centre Building can be used for both entering and leaving by employees, lawyers, and their clerks. People involved in lawsuits (litigants) cannot come into the High Court unless they are representing themselves. Only up to six lawyers can be in a courtroom at once. The High Court will still allow court hearings through video calls for now. Anyone who wants to join a court hearing by video call must send an email. This email needs to include their phone number, details about the case (like who is involved, the case name, type, number, and year), and their own email address. They should ask for a video conferencing link to join the hearing. This email must be sent to the High Court by 1:00 PM on the working day before the hearing date. The email address for this is: [email protected] Lawyers can submit their case documents online or in person. They should go to the Stamp Reporting Section and the Application Section counters inside the High Court, just like they did before the lockdown. They will not need to file special "Urgency Applications" to get cases that are already scheduled listed. If the Stamp Reporting Section finds mistakes in new cases, those mistakes must be fixed following the rules that were in place before March 18, 2020, which was before the pandemic. Cases that are already set for hearing will still appear on the "Additional Cause List." The regular "Daily Cause List" will not be printed or published until new orders are given. There will be counters outside the High Court where people can pay court fees online. The Photo-Affidavit Centre will open and work normally from March 1, 2021. Lawyers' offices inside the High Court will also open from March 1, 2021. The canteens for lawyers and employees inside the High Court will work as usual. Judges and lawyers will wear their traditional robes and coats, as they normally do. Cars must be parked as they were before, meaning outside the court building, while also keeping social distance.
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1) The petitioner has challenged FIR No.187/2018 for offence under Section 13 ULA(P) Act registered with Police Station, Kulgam 2) It is averred in the petition that the petitioner is an advocate practicing in District Court, Kulgam, for last about 10 years. On 21.10.2018, six civilians were killed and more than sixty injured including men, women and children in a blast at a gunfight site at Laroo Village in Kulgam triggering outrage across Kashmir. It is further averred that even Union Home Minister of India condemned these unfortunate killings and expressed his heartfelt condolence to the families of the deceased and announced relief of Rs.5.00 lacs to each family of the deceased. It is also contended that the Governor of Jammu and Kashmir also termed the killing of six civilians as unfortunate. Similar views were published and expressed by several local and national newspapers. It is averred that the petitioner, being a resident of the village in which the tragedy had happened, made certain comments regarding the incident on the Facebook. According to the petitioner, the theme of these posts was that there has been negligence which led to the killing of these civilians and that District Police, Kulgam, and the local administration were principally responsible for the same. The petitioner is stated to have expressed his outrage and shock on similar other incidents in his Facebook posts and has also made comment that India has lost opportunity to resolve the issue with Pakistan by not responding to the offer of the Prime Minister of Pakistan. 3) According to the petitioner, there is nothing illegal in the posts which were uploaded by him on his Facebook but still then on the basis of letter dated 13.11.2018, issued by respondent No.2 to respondent No.3, the impugned FIR has been registered by branding him as an anti- national element. It is contended that the action of the petitioner does not come within the definition of ‘unlawful activity’ as contained in Section 2(o) of ULA(P) Act. Thus, according to the petitioner, on the face of it, the allegations made in the FIR do not constitute an offence against the petitioner and, as such, the same is liable to be quashed. 4) The respondents have resisted the petition by filing a reply thereto. In their reply, respondents have submitted that Police Station, Kulgam received a letter dated 13.11.2018 from District Police, Kulgam, along with extracts of Facebook posts pertaining to the petitioner and other advocates. It was found that the petitioner and other advocates are uploading /spreading seditions, pro-separatist contents through Social Medial especially on Facebook, as such, there was an apprehension of disruption of peaceful atmosphere in South Kashmir, particularly in District Kulgam. On receiving this letter, the impugned FIR came to be registered but due to the stay of investigation ordered by this Court, the investigation could not proceed further 5) I have heard learned counsel for the parties and perused the record including the Case Diary. 6) Learned counsel for the petitioner has vehemently argued that the posts which were uploaded by the petitioner on his Facebook were not intended to create any disaffection or encourage any anti-national activities but he had only expressed his outrage at the happenings which had taken place in his native village. Learned counsel has submitted that even the responsible functionaries of the Government of India including Home Minister and the Governor of Jammu and Kashmir had expressed shock and outrage at the incident and most of the local and national daily newspapers had expressed similar views in the matter. Learned counsel, while buttressing his arguments, has referred to the judgment of the Supreme Court in the case of Vinod Dua v. Union of India and others, AIR 2021 SC 3239, in which it has been laid down that a citizen has a right to criticize or comment upon the measures undertaken by the Government and its functionaries, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder. According to the learned counsel, the posts on the basis of which the petitioner has been booked for offence under Section 13 of ULA(P) Act do not in any manner incite public to violence against the Government nor do they create an apprehension of public disorder. Therefore, no offence is made out against the petitioner. 7) Before testing the merits of the contention raised by learned counsel for the petitioner, it would be apt to refer to the provisions contained in Section 13 of ULA(P) Act. It reads as under: “13. Punishment for unlawful activities.—(1) Whoever— (a) takes part in or commits, or (b) advocates, abets, advises or incites the any unlawful activity, shall be punishable with imprisonment for a term which may extend to seven years and shall also be liable to fine. (2) Whoever, in any way, assists any unlawful activity of any association, declared unlawful under section 3, after the notification by which it has been so declared has become effective under sub-section (3) of that section, shall be punishable with imprisonment for a term which may extend to five years, or with fine, or with both. (3) Nothing in this section shall apply to any treaty, agreement or convention entered into between the Government of India and the Government of any other country or to any negotiations therefor carried on by any person authorised in this behalf by the Government of India.” 8) From a perusal of the aforesaid provision, it is clear that a person can be punished for unlawful activities if he takes part in or commits, advocates, abets, advises or incites the commission of any unlawful activity. Even if a person assists any unlawful activity of any association declared as unlawful, he can be subjected to punishment under the aforesaid provision 9) ‘Unlawful activity’ has been defined in Section 2(0) of the ULA(P) Act. It reads as under: “unlawful activity”, in relation to an individual or association, means any action taken by such individual or association (whether by committing an act or by words, either spoken or written, or by signs or by visible representation or otherwise),— (i) which is intended, or supports any claim, to bring about, on any ground whatsoever, the cession of a part of the territory of India or the secession of a part of the territory of India from the Union, or which incites any individual or group of individuals to bring about such cession or secession; or (ii) which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of (iii) which causes or is intended to cause disaffection 10) From a perusal of the aforesaid provision, it is clear that ‘unlawful activity’ means any action taken by an individual, whether by committing an act or by words, either spoken or written or otherwise, which is intended or supports any claim, to bring about, on any ground whatsoever, the cession of a part of the territory of India from the Union or which incites any individual or group of individuals to bring about such cession or session. ‘Unlawful activity’ also includes any action which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India or if it is intended to cause disaffection against India. 11) “Cession” has been defined in Section 2(1)(b) to include admission of the claim of any foreign country to any such part of territory of India whereas ‘secession’ has been defined in Section 2(1)(i) to include the assertion of any claim to determine whether such part will remain a part of the territory of India. 12) In the light of the aforesaid provisions of law, let us now consider as to whether the Facebook posts of the petitioner, on the basis of which the impugned FIR has been registered, make out a case of ‘unlawful activity’ which is punishable under Section 13 of the Act. In this regard, it would be apt to refer to the contents of the posts allegedly uploaded by the petitioner on the basis of which the impugned FIR has been lodged. The Case Diary contains print out of a number of posts allegedly uploaded by the petitioner on his Facebook account but some of these posts are not being reproduced here as in those posts the petitioner has only expressed outrage and condemnation of certain incidents which comes within the ambit of his legitimate right to freedom of expression as guaranteed under Article 19 of the Constitution. The two posts which require to be considered for the purpose of determining the issue at hand are reproduced as under: (i) “Karbala in Laroo. Genocide and mayhem in my native hamlet Laroo. One of the most intense gunfights in my village culminated into mass massacre, bloodshed, cries, wailings, and brutal carnage. A military operation culminated into an organised state negligence which led to killings of 8teenagers and injuring 60 others. The military establishment and district police Kulgam, including local administration is principally and directly responsible for the murder of eight sweethearts in my No combing and non-sanitization of the encounter site sprinkled hot blood of my fellow brothers in every corner of the damaged house and the roads of village One cannot even imagine the nature of horror and misery the poor and broken inhabitants of my village were confronted with and broken inhabitants of my village were confronted with and the senses were so scary and heart wrenching that we were not in a position to carry the coffins of these budding brothers to the graveyards. I could witness people of my village from 8 to 80 tearing their clothes and stroking their faces hard for hours The hot blood clots and soaked jeans of talib and rest brothers will haunt me for decades together. For the first time in my life, I felt broken and weak and I could acknowledge that were are slaves and slaves have no life of their own. Talib was my next door neighbour and distinction holder who used to do labour during the day and study during night. Father of Talib Dr. Maqbool laway died when talib was a baby and since then talib and his mom contained the quagmire and hardships of life together. Every passing hour I can hear the cries of talibs Mom who lost her only hope in life. I feel so shattered for the best friends of Talib, mugeem and rest other martyrs. I could see one of their common friends dying with Shrieks at their graves. I feel so broken for that toddler that went I left the grave that friend of talib and his shrieks created and an indelible mark in my mind and I could remember few verse for that surviving friends and buddy Ghar ho Khushi se Bhara My village is not that busy hustle bustle hamlet anymore now the blood soaked roads are testament to a genocide perpetuated and organized by colonial establishment. The highest that I could sum up from his disaster is the quote of Dr. Manan Wani Occupation is like a cancer which will consume everyone of us.” (ii)“Manan’s finger on trigger is more than the mechanism that sets off the firing action of a gun. It is not an isolated incident. If reflects the culmination of systemic failure. If reflects on those heartless structures that celebrate occupation of military bonhomie in cozy champagne circuits and page three parties of gupkar. He may be a looser in the natural lottery called life, but his death reflects a writing on the wall. With his death, may God answer our silent prayers ad change the frigid ad uncaring hearts of those who perpetuate this war and enjoy its franchise.” 13) The highlighted portions of the first post quoted above indicate that the petitioner advocates that the people of Kashmir are slaves and it is under occupation which is like a cancer. The highlighted portions of the other post quoted above indicate that the petitioner is advocating that this part of the Country is under the occupation of Indian military. 14) In my opinion, the freedom of speech and expression guaranteed under the Constitution cannot be stretched to such a limit as to allow a person to question the status of a part of the Country or its people. It is one thing to criticize the Government for its negligence and express outrage on the violation of human rights of the people but it is quite another to advocate that the people of a particular part of the Country are slaves of the Government of India or that they are under occupation of armed forces of the Country. While the former i.e., expression of outrage at the negligence and inhuman attitude of the security forces, police and establishment would come within the ambit of freedom of expression of an individual which includes freedom to criticize the Government of the day which is permissible under law but the same may not be the position if an individual questions the fact of a State being a part of the Country by using the expression ‘occupation of military or the people being slaves etc.’. The petitioner, who happens to be an advocate, can very well understand the import of these expressions. By making these comments, he is certainly advocating and supporting the claim that Jammu and Kashmir is not a part of India and that it is occupied by Indian military with the people having being reduced to the status of slaves. Thus, he is questioning the sovereignty and territorial integrity of the Country. 15) The petitioner by uploading these posts has cross the Lakshman Rekha which demarcates the freedom of expression guaranteed under Article 19 of the Constitution of India from the reasonable restrictions imposed on such freedom on the ground of sovereignty and integrity of India. The intention of a person can be gathered from the words spoke or written or other expressions. Therefore, the expressions used by the petitioner, who happens to be a law knowing person, clearly show that he intended to advocate a particular ideology which supports the claim of cessions of Jammu and Kashmir, which is an integral part of India. This act of the petitioner, therefore, prima facie, falls within the definition of ‘unlawful activity’ as contained in Section 2(o) of the ULA(P) Act punishable under Section 13 of the Act. 16) The ratio laid down by the Supreme Court in Vindod Dua’s case (supra), on which learned counsel for the petitioner has placed reliance, is not applicable to the facts of the instant case. This is so because in Vinod Dua’s case (supra), the petitioner therein who happened to be a journalist, had criticized the functioning of the Government of the day and he had not supported and advocated any claim relating to cession of a part of the Country whereas, in the instant case, the petitioner by uploading the posts on his Facebook, has supported the claim of cession of a particular part of the Country. Besides this, in Vinod Dua’s case, the petitioner was booked for offence of sedition defined in Section 124A of IPC whereas in this case, the petitioner has been booked for commission of offence under Section 13 of ULA(P) Act. The ingredients of two offences are distinct from each other. Thus, the ratio laid down in Vinod Dua’s case is not applicable to the facts of the instant case. 17) For the forgoing reasons, it cannot be stated that no offence is made out from the contents of the impugned FIR and the material annexed thereto. Therefore, this is not a fit case where this Court should exercise its power under Section 482 of Cr. P. C to quash the proceedings at this stage. Quashing the proceedings at this stage would amount to stifling a genuine prosecution, which is not permissible in view of the ratio laid down by the Supreme Court in the case of Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra and 18) Thus, there is no merit in this petition. The same is, accordingly, dismissed. The interim order shall stand vacated. 19) Case Diary be returned to the learned counsel for the
The High Court in Jammu and Kashmir and Ladakh recently ruled that freedom of speech has specific boundaries. This freedom does not allow an individual to claim that the military occupies Kashmir or that the people of Kashmir are held as slaves. A group of judges, including Justice Sanjay Dhar, explained their view. He stated that the freedom of speech protected by the Constitution cannot be stretched to question whether a part of the country or its people truly belong. It is acceptable to criticize the government for its errors or to express anger about human rights violations. However, it is fundamentally different to argue that people in a specific region of the country are slaves of the Indian government or are under the control of its armed forces. The Court made these comments while rejecting a request from a lawyer named Muzamil Butt. He had asked the Court to cancel a police report, known as an FIR, which was filed against him under Section 13 of the Unlawful Activities (Prevention) Act. The lawyer was charged in 2018 for posting comments on Facebook. These comments were about the deaths of six civilians in an explosion at a conflict site in Kulgam, an event that had caused widespread anger across Kashmir. In his Facebook post, the lawyer wrote, among other things: "For the first time in my life, I felt broken and weak and I could acknowledge that we are slaves and slaves have no life of their own...It reflects on those heartless structures that celebrate occupation of military bonhomie in cozy champagne circuits and page three parties of Gupkar." Justice Dhar believed that the petitioner, being a lawyer, fully understood the meaning of these statements. The judges noted that by making such comments, he was clearly promoting the idea that Jammu and Kashmir is not truly part of India. He was suggesting it is occupied by the Indian military and its people have been reduced to the status of slaves. Therefore, he was questioning India's self-governance and its control over its land. The judges observed that by uploading these posts, the lawyer had crossed an important boundary, often called a "Lakshman Rekha." This line separates the freedom of expression, which is protected by Article 19 of India's Constitution, from the reasonable limits placed on this freedom. These limits exist to protect India's sovereignty and unity. As a result, he is legally responsible and must face the law. While deciding the case, the judges found it important to clarify a point. They explained that expressing anger at the negligence and inhumane behavior of security forces, police, and government departments is part of an individual's freedom of expression. This also includes the right to criticize the government, which is allowed by law. However, the situation changes if someone questions whether a state is actually a part of the country by using terms like 'occupation of military' or calling its people 'slaves.' Further discussing the topic, the judges noted that a person's intentions can be understood from their spoken or written words or other forms of expression. The specific words used by the petitioner, who is knowledgeable about law, clearly showed that he aimed to support a particular belief. This belief suggests that Jammu and Kashmir should separate from India, even though it is considered an essential part of the country. The judges recorded that, at first glance, this action by the petitioner fits the definition of 'unlawful activity' as described in Section 2(o) of the Unlawful Activities (Prevention) Act and is punishable under Section 13 of the Act. For all the reasons mentioned above, the Court stated that it could not claim no crime had been committed based on the contents of the police report. Therefore, this was not an appropriate situation for them to use their special authority under Section 482 of the Criminal Procedure Code.
1) The petitioner has challenged FIR No.187/2018 for offence under Section 13 ULA(P) Act registered with Police Station, Kulgam 2) It is averred in the petition that the petitioner is an advocate practicing in District Court, Kulgam, for last about 10 years. On 21.10.2018, six civilians were killed and more than sixty injured including men, women and children in a blast at a gunfight site at Laroo Village in Kulgam triggering outrage across Kashmir. It is further averred that even Union Home Minister of India condemned these unfortunate killings and expressed his heartfelt condolence to the families of the deceased and announced relief of Rs.5.00 lacs to each family of the deceased. It is also contended that the Governor of Jammu and Kashmir also termed the killing of six civilians as unfortunate. Similar views were published and expressed by several local and national newspapers. It is averred that the petitioner, being a resident of the village in which the tragedy had happened, made certain comments regarding the incident on the Facebook. According to the petitioner, the theme of these posts was that there has been negligence which led to the killing of these civilians and that District Police, Kulgam, and the local administration were principally responsible for the same. The petitioner is stated to have expressed his outrage and shock on similar other incidents in his Facebook posts and has also made comment that India has lost opportunity to resolve the issue with Pakistan by not responding to the offer of the Prime Minister of Pakistan. 3) According to the petitioner, there is nothing illegal in the posts which were uploaded by him on his Facebook but still then on the basis of letter dated 13.11.2018, issued by respondent No.2 to respondent No.3, the impugned FIR has been registered by branding him as an anti- national element. It is contended that the action of the petitioner does not come within the definition of ‘unlawful activity’ as contained in Section 2(o) of ULA(P) Act. Thus, according to the petitioner, on the face of it, the allegations made in the FIR do not constitute an offence against the petitioner and, as such, the same is liable to be quashed. 4) The respondents have resisted the petition by filing a reply thereto. In their reply, respondents have submitted that Police Station, Kulgam received a letter dated 13.11.2018 from District Police, Kulgam, along with extracts of Facebook posts pertaining to the petitioner and other advocates. It was found that the petitioner and other advocates are uploading /spreading seditions, pro-separatist contents through Social Medial especially on Facebook, as such, there was an apprehension of disruption of peaceful atmosphere in South Kashmir, particularly in District Kulgam. On receiving this letter, the impugned FIR came to be registered but due to the stay of investigation ordered by this Court, the investigation could not proceed further 5) I have heard learned counsel for the parties and perused the record including the Case Diary. 6) Learned counsel for the petitioner has vehemently argued that the posts which were uploaded by the petitioner on his Facebook were not intended to create any disaffection or encourage any anti-national activities but he had only expressed his outrage at the happenings which had taken place in his native village. Learned counsel has submitted that even the responsible functionaries of the Government of India including Home Minister and the Governor of Jammu and Kashmir had expressed shock and outrage at the incident and most of the local and national daily newspapers had expressed similar views in the matter. Learned counsel, while buttressing his arguments, has referred to the judgment of the Supreme Court in the case of Vinod Dua v. Union of India and others, AIR 2021 SC 3239, in which it has been laid down that a citizen has a right to criticize or comment upon the measures undertaken by the Government and its functionaries, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder. According to the learned counsel, the posts on the basis of which the petitioner has been booked for offence under Section 13 of ULA(P) Act do not in any manner incite public to violence against the Government nor do they create an apprehension of public disorder. Therefore, no offence is made out against the petitioner. 7) Before testing the merits of the contention raised by learned counsel for the petitioner, it would be apt to refer to the provisions contained in Section 13 of ULA(P) Act. It reads as under: “13. Punishment for unlawful activities.—(1) Whoever— (a) takes part in or commits, or (b) advocates, abets, advises or incites the any unlawful activity, shall be punishable with imprisonment for a term which may extend to seven years and shall also be liable to fine. (2) Whoever, in any way, assists any unlawful activity of any association, declared unlawful under section 3, after the notification by which it has been so declared has become effective under sub-section (3) of that section, shall be punishable with imprisonment for a term which may extend to five years, or with fine, or with both. (3) Nothing in this section shall apply to any treaty, agreement or convention entered into between the Government of India and the Government of any other country or to any negotiations therefor carried on by any person authorised in this behalf by the Government of India.” 8) From a perusal of the aforesaid provision, it is clear that a person can be punished for unlawful activities if he takes part in or commits, advocates, abets, advises or incites the commission of any unlawful activity. Even if a person assists any unlawful activity of any association declared as unlawful, he can be subjected to punishment under the aforesaid provision 9) ‘Unlawful activity’ has been defined in Section 2(0) of the ULA(P) Act. It reads as under: “unlawful activity”, in relation to an individual or association, means any action taken by such individual or association (whether by committing an act or by words, either spoken or written, or by signs or by visible representation or otherwise),— (i) which is intended, or supports any claim, to bring about, on any ground whatsoever, the cession of a part of the territory of India or the secession of a part of the territory of India from the Union, or which incites any individual or group of individuals to bring about such cession or secession; or (ii) which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of (iii) which causes or is intended to cause disaffection 10) From a perusal of the aforesaid provision, it is clear that ‘unlawful activity’ means any action taken by an individual, whether by committing an act or by words, either spoken or written or otherwise, which is intended or supports any claim, to bring about, on any ground whatsoever, the cession of a part of the territory of India from the Union or which incites any individual or group of individuals to bring about such cession or session. ‘Unlawful activity’ also includes any action which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India or if it is intended to cause disaffection against India. 11) “Cession” has been defined in Section 2(1)(b) to include admission of the claim of any foreign country to any such part of territory of India whereas ‘secession’ has been defined in Section 2(1)(i) to include the assertion of any claim to determine whether such part will remain a part of the territory of India. 12) In the light of the aforesaid provisions of law, let us now consider as to whether the Facebook posts of the petitioner, on the basis of which the impugned FIR has been registered, make out a case of ‘unlawful activity’ which is punishable under Section 13 of the Act. In this regard, it would be apt to refer to the contents of the posts allegedly uploaded by the petitioner on the basis of which the impugned FIR has been lodged. The Case Diary contains print out of a number of posts allegedly uploaded by the petitioner on his Facebook account but some of these posts are not being reproduced here as in those posts the petitioner has only expressed outrage and condemnation of certain incidents which comes within the ambit of his legitimate right to freedom of expression as guaranteed under Article 19 of the Constitution. The two posts which require to be considered for the purpose of determining the issue at hand are reproduced as under: (i) “Karbala in Laroo. Genocide and mayhem in my native hamlet Laroo. One of the most intense gunfights in my village culminated into mass massacre, bloodshed, cries, wailings, and brutal carnage. A military operation culminated into an organised state negligence which led to killings of 8teenagers and injuring 60 others. The military establishment and district police Kulgam, including local administration is principally and directly responsible for the murder of eight sweethearts in my No combing and non-sanitization of the encounter site sprinkled hot blood of my fellow brothers in every corner of the damaged house and the roads of village One cannot even imagine the nature of horror and misery the poor and broken inhabitants of my village were confronted with and broken inhabitants of my village were confronted with and the senses were so scary and heart wrenching that we were not in a position to carry the coffins of these budding brothers to the graveyards. I could witness people of my village from 8 to 80 tearing their clothes and stroking their faces hard for hours The hot blood clots and soaked jeans of talib and rest brothers will haunt me for decades together. For the first time in my life, I felt broken and weak and I could acknowledge that were are slaves and slaves have no life of their own. Talib was my next door neighbour and distinction holder who used to do labour during the day and study during night. Father of Talib Dr. Maqbool laway died when talib was a baby and since then talib and his mom contained the quagmire and hardships of life together. Every passing hour I can hear the cries of talibs Mom who lost her only hope in life. I feel so shattered for the best friends of Talib, mugeem and rest other martyrs. I could see one of their common friends dying with Shrieks at their graves. I feel so broken for that toddler that went I left the grave that friend of talib and his shrieks created and an indelible mark in my mind and I could remember few verse for that surviving friends and buddy Ghar ho Khushi se Bhara My village is not that busy hustle bustle hamlet anymore now the blood soaked roads are testament to a genocide perpetuated and organized by colonial establishment. The highest that I could sum up from his disaster is the quote of Dr. Manan Wani Occupation is like a cancer which will consume everyone of us.” (ii)“Manan’s finger on trigger is more than the mechanism that sets off the firing action of a gun. It is not an isolated incident. If reflects the culmination of systemic failure. If reflects on those heartless structures that celebrate occupation of military bonhomie in cozy champagne circuits and page three parties of gupkar. He may be a looser in the natural lottery called life, but his death reflects a writing on the wall. With his death, may God answer our silent prayers ad change the frigid ad uncaring hearts of those who perpetuate this war and enjoy its franchise.” 13) The highlighted portions of the first post quoted above indicate that the petitioner advocates that the people of Kashmir are slaves and it is under occupation which is like a cancer. The highlighted portions of the other post quoted above indicate that the petitioner is advocating that this part of the Country is under the occupation of Indian military. 14) In my opinion, the freedom of speech and expression guaranteed under the Constitution cannot be stretched to such a limit as to allow a person to question the status of a part of the Country or its people. It is one thing to criticize the Government for its negligence and express outrage on the violation of human rights of the people but it is quite another to advocate that the people of a particular part of the Country are slaves of the Government of India or that they are under occupation of armed forces of the Country. While the former i.e., expression of outrage at the negligence and inhuman attitude of the security forces, police and establishment would come within the ambit of freedom of expression of an individual which includes freedom to criticize the Government of the day which is permissible under law but the same may not be the position if an individual questions the fact of a State being a part of the Country by using the expression ‘occupation of military or the people being slaves etc.’. The petitioner, who happens to be an advocate, can very well understand the import of these expressions. By making these comments, he is certainly advocating and supporting the claim that Jammu and Kashmir is not a part of India and that it is occupied by Indian military with the people having being reduced to the status of slaves. Thus, he is questioning the sovereignty and territorial integrity of the Country. 15) The petitioner by uploading these posts has cross the Lakshman Rekha which demarcates the freedom of expression guaranteed under Article 19 of the Constitution of India from the reasonable restrictions imposed on such freedom on the ground of sovereignty and integrity of India. The intention of a person can be gathered from the words spoke or written or other expressions. Therefore, the expressions used by the petitioner, who happens to be a law knowing person, clearly show that he intended to advocate a particular ideology which supports the claim of cessions of Jammu and Kashmir, which is an integral part of India. This act of the petitioner, therefore, prima facie, falls within the definition of ‘unlawful activity’ as contained in Section 2(o) of the ULA(P) Act punishable under Section 13 of the Act. 16) The ratio laid down by the Supreme Court in Vindod Dua’s case (supra), on which learned counsel for the petitioner has placed reliance, is not applicable to the facts of the instant case. This is so because in Vinod Dua’s case (supra), the petitioner therein who happened to be a journalist, had criticized the functioning of the Government of the day and he had not supported and advocated any claim relating to cession of a part of the Country whereas, in the instant case, the petitioner by uploading the posts on his Facebook, has supported the claim of cession of a particular part of the Country. Besides this, in Vinod Dua’s case, the petitioner was booked for offence of sedition defined in Section 124A of IPC whereas in this case, the petitioner has been booked for commission of offence under Section 13 of ULA(P) Act. The ingredients of two offences are distinct from each other. Thus, the ratio laid down in Vinod Dua’s case is not applicable to the facts of the instant case. 17) For the forgoing reasons, it cannot be stated that no offence is made out from the contents of the impugned FIR and the material annexed thereto. Therefore, this is not a fit case where this Court should exercise its power under Section 482 of Cr. P. C to quash the proceedings at this stage. Quashing the proceedings at this stage would amount to stifling a genuine prosecution, which is not permissible in view of the ratio laid down by the Supreme Court in the case of Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra and 18) Thus, there is no merit in this petition. The same is, accordingly, dismissed. The interim order shall stand vacated. 19) Case Diary be returned to the learned counsel for the
The High Court in Jammu and Kashmir and Ladakh recently ruled that freedom of speech has specific boundaries. This freedom does not allow an individual to claim that the military occupies Kashmir or that the people of Kashmir are held as slaves. A group of judges, including Justice Sanjay Dhar, explained their view. He stated that the freedom of speech protected by the Constitution cannot be stretched to question whether a part of the country or its people truly belong. It is acceptable to criticize the government for its errors or to express anger about human rights violations. However, it is fundamentally different to argue that people in a specific region of the country are slaves of the Indian government or are under the control of its armed forces. The Court made these comments while rejecting a request from a lawyer named Muzamil Butt. He had asked the Court to cancel a police report, known as an FIR, which was filed against him under Section 13 of the Unlawful Activities (Prevention) Act. The lawyer was charged in 2018 for posting comments on Facebook. These comments were about the deaths of six civilians in an explosion at a conflict site in Kulgam, an event that had caused widespread anger across Kashmir. In his Facebook post, the lawyer wrote, among other things: "For the first time in my life, I felt broken and weak and I could acknowledge that we are slaves and slaves have no life of their own...It reflects on those heartless structures that celebrate occupation of military bonhomie in cozy champagne circuits and page three parties of Gupkar." Justice Dhar believed that the petitioner, being a lawyer, fully understood the meaning of these statements. The judges noted that by making such comments, he was clearly promoting the idea that Jammu and Kashmir is not truly part of India. He was suggesting it is occupied by the Indian military and its people have been reduced to the status of slaves. Therefore, he was questioning India's self-governance and its control over its land. The judges observed that by uploading these posts, the lawyer had crossed an important boundary, often called a "Lakshman Rekha." This line separates the freedom of expression, which is protected by Article 19 of India's Constitution, from the reasonable limits placed on this freedom. These limits exist to protect India's sovereignty and unity. As a result, he is legally responsible and must face the law. While deciding the case, the judges found it important to clarify a point. They explained that expressing anger at the negligence and inhumane behavior of security forces, police, and government departments is part of an individual's freedom of expression. This also includes the right to criticize the government, which is allowed by law. However, the situation changes if someone questions whether a state is actually a part of the country by using terms like 'occupation of military' or calling its people 'slaves.' Further discussing the topic, the judges noted that a person's intentions can be understood from their spoken or written words or other forms of expression. The specific words used by the petitioner, who is knowledgeable about law, clearly showed that he aimed to support a particular belief. This belief suggests that Jammu and Kashmir should separate from India, even though it is considered an essential part of the country. The judges recorded that, at first glance, this action by the petitioner fits the definition of 'unlawful activity' as described in Section 2(o) of the Unlawful Activities (Prevention) Act and is punishable under Section 13 of the Act. For all the reasons mentioned above, the Court stated that it could not claim no crime had been committed based on the contents of the police report. Therefore, this was not an appropriate situation for them to use their special authority under Section 482 of the Criminal Procedure Code.
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Through: Mr. Sandeep Sethi, Sr. Advocate with 1. This hearing has been done through hybrid mode. 2. The Plaintiff has filed the present suit seeking permanent injunction, restraining infringement of trademark, passing off, dilution, unfair competition, delivery up, rendition of accounts, damages, and other reliefs in respect of the trademark ‘PLANT POWERED’. 3. The case of the Plaintiff is that it was incorporated in the year 2016, and over the years, it has sold various baby care and personal care products which are natural and eco-friendly, including detergent, lotions, face wash, face cream, sunscreen face mask etc., under the trademark ‘PLANT POWERED’. The trademark ‘PLANT POWERED’ was adopted by the Plaintiff in the year 2019, and has been using the said trademark along with Application No.4363416 dated 30th November, 2019 was filed by the Plaintiff in Class 3, along with the label which was used by the Plaintiff. The said mark was registered. Apart from the said application, the Plaintiff has sought registrations by way of other applications in Class 5, which are currently objected to and are pending examination. The Plaintiff has also sought registration of the device mark (‘PLANT 4. The sales of the Plaintiff’s products since the year 2019 is claimed to be Rs.5.95 crores, and the promotional expenses are claimed to be over Rs.4 crores. Various products of the Plaintiff have also been duly licenced under The Drugs and Cosmetics Act, 1940. 5. The grievance of the Plaintiff, in the present case, is that the Defendant No.1 – Mr. Aayush Gupta, who is also running two entities which are known by the names ‘Plant Powered’ and ‘Bo International’, applied for the registration of the mark (PLANT POWERED) with a flower logo. The said application was filed on 29th December, 2020 in Class 3 on a ‘proposed to be used’ basis. The said mark proceeded for registration and the Plaintiff has now filed a rectification seeking cancellation of the said 6. As per the Plaintiff, upon gaining knowledge of the said registration, the Plaintiff conducted a market survey and found a number of Defendant’s products on the e-commerce platform www.amazon.in (“Amazon”). The details of the said products, along with product codes, and Amazon Standard Identification Number (ASIN) are also set out in the plaint. 7. Mr. Sethi, ld. Senior Counsel appearing for the Plaintiff has made the i. A cease and desist notice was issued by the Plaintiff on 1st February, 2022. However, the Defendant did not respond to the same. Upon receiving the cease and desist notice, the Defendant wrote a complaint to Amazon, raising a grievance against the Plaintiff’s products, which resulted in an email being sent to the Plaintiff on 8th February, 2022. Subsequent emails were also received from Amazon, and the Plaintiff’s products were delisted from Amazon. Thus, the Defendant chose not to reply to the legal notice, but parallelly, took action against the Plaintiff which had addressed the legal notice to the Defendant. He submits that this shows the mala fide and dishonest nature of the Defendant’s conduct. ii. The Defendant is also using the name ‘PLANT POWERED’ as a trading style for identical goods. The domain name www.plantpowered.in has also been registered on 9th October, 2021. In view of the dates on which the trademark applications were filed and the domain name was registered, it is submitted that the Plaintiff is the prior user and adopter of the mark in respect of identical products. iii. It is also brought to the notice of this Court that the invoices which have been placed on record by the Defendant to plead user in the year 2020 are also completely manipulated and fabricated inasmuch as the corresponding e-way bills, which can be downloaded from the GST portal, would show that the mark ‘PLANT POWERED’ is not reflected in the corresponding e-way bill. Thus, it is submitted that strict action is liable to be taken against the Defendant for filing such manipulated and forged documents. iv. The website of the Defendant i.e., www.plantpowered.in, as on 21st February, 2022, merely mentioned ‘Opening Soon'. On the website www.boessentialoil.com as well, there was no reflection of any product by the name ‘PLANT POWERED’. 8. On the other hand, Ms. Mukherjee, ld. Counsel on behalf of the Defendant, makes the following submissions: i. The term ‘PLANT POWERED’ is a descriptive mark and there can be no monopoly over the same. There is no similarity between the Plaintiff’s products and the Defendants’ products. The products are clearly distinguishable as the house mark ‘MOTHER SPARSH’ is used by the Plaintiff for its products. Reliance is placed upon the judgments in Marico Limited v. Agro Tech Foods Limited [174 (2010) DLT 279], Intex Technologies v. 7392] as also ITC Ltd. & Ors. v. Britannia Industries Ltd. [2021 SCC OnLine Del 1489] to argue that once there is a house mark which a distinguishing factor between the two parties, if the Defendant adds the name ‘Bo International’ or ‘Bio International’ as a prefix to their mark, it would be sufficient to distinguish the Defendant’s products from the Plaintiff’s products. She further submits that her client is willing to incorporate a hyphen between the word ‘PLANT’ and ‘POWERED’ so that the same is clearly distinguishable from the Plaintiff’s products. ii. The gap between the adoption of the mark by the Plaintiff and the Defendant is not too long. The Defendant having spent huge amounts of money for promoting the products, the Defendant should be permitted to use the mark ‘PLANT POWERED’ along with the logo ‘Bio International’ or ‘Bo International’. In this background, she submits that some distinguishable features can be added which could distinguish the Defendant’s products with Plaintiff’s products. iii. She seeks to clarify and explain the discrepancy between the e- way bills and the invoice by submitting that the ‘PLANT POWERED’ name cannot be manually incorporated into the e- way bill. 9. Heard ld. Counsels for the parties. The question, in the present case, relates to the use of the word and the mark ‘PLANT POWERED’. Upon a perusal of the documents placed on record, prima facie, this Court is convinced that the Plaintiff is the prior adopter and the user of the said mark since the year 2019. The earliest document placed on record by the Defendant is one of December, 2020, when the trademark application was filed by the Defendant. 10. It is further noticed that the product of the Defendant is not described with any prefix on the website of Amazon. In fact, it is described as ‘PLANT POWERED’. Thus, it is clear that the mark ‘PLANT POWERED’ is being used as a trademark and not as a description of the products. Moreover, the fact that the Defendant itself applied for the trademark application and registration of the mark ‘PLANT POWERED’ means that they are estopped from claiming that the same is the description of the product. This is the settled legal position as per the judgement of this Court in Automatic Electric Limited v. R. K. Dhawan & Ors. [77 (1999) DLT 292]. The relevant observations from the said judgment read as under: “16. The defendants got their trade mark "DIMMER DOT" registered in Australia. The fact that the defendant itself has sought to claim trade proprietary right and monopoly in "DIMMER DOT", it does not lie in their mouth to say that the word "DIMMER" is a generic expression. User of the word "DIMMER" by others cannot be a defense available to the defendants, if it could be shown that the same is being used in violation of the statutory right of the plaintiff. In this connection, reference may be made to the decision of this Court in Prakash Road line Ltd. Vs. Prakash Parcel Service (P) Ltd.; reported in 1992(2) Arbitration Law Reporter page 174. Reference may also be made to the decision in P.M. Diesels Ltd. Vs . S.M. Diesels; reported in MANU/DE/0636/1994 : AIR1994Delhi264 . It was held in those decision that if the plaintiff is a proprietor of the registered trade mark, the same gives to the proprietor of the registered trade mark the exclusive right to use the trade mark with relation to goods in respect of which the trade mark is registered under the provisions of Section 28 of the Trade and Merchandise Marks Act. It was also held that such statutory right cannot be lost merely on the question of principles of delay, laches or acquiescence. It was also held that in general mere delay after knowledge of infringement does not deprive the registered proprietor of a trade mark of his statutory rights or of the appropriate remedy for the enforcement of those rights so long as the said delay is not an inordinate delay. In my considered opinion, the ratio of the aforesaid decisions are squarely applicable to the facts of the present case.” 11. Similar is the view taken in Procter & Gamble Manufacturing (Tianjin) Co. Ltd. and Ors. v. Anchor Health & Beauty Care Pvt. Ltd. [211 (2014) DLT 466], wherein it was held as under: respondent/plaintiff not using the registered trade mark "ALLROUND" owing to having suffixed it with the word "PROTECTION" is concerned, again, the appellants/defendants in the US, obtained registration of the mark "ALL-AROUND PROTECTION" disclaiming the word "PROTECTION". The same is indicative of the appellants/defendants admitted that use of the word "PROTECTION" as a suffix to the use of the registered mark "ALL-AROUND" not negating the use of the trade mark. The same reasoning, of approbate and reprobate, applied by the learned Single Judge, in our opinion, would apply to this aspect as well. (xix) As far as the contention, of Automatic Electric Ltd. (supra) having stood overruled by Marico Limited (supra) is concerned, we have perused Indian Hotels Company Ltd. (supra) and are unable to agree that the reference therein to Automatic Electric Ltd. is without affirming the same. It was the contention in Indian Hotels Company Ltd. also that the word "JIVA" therein was a descriptive word which could not be protected as a trade mark. The Division Bench however negated the said argument by holding that the appellant therein having itself applied for registration of "JIVA" as a trade mark, could not argue that the mark was descriptive. Reference to Automatic Electric Ltd. was made in support of the said reasoning. Unfortunately, neither Automatic Electric Ltd. nor Indian Hotels Company Ltd. were noticed in the subsequent judgment of the Division Bench in Marico Limited. We, at this interim stage are inclined to go along with the affirmation by the Division Bench in Indian Hotels Company Ltd. with the view in 12. The sales of the Plaintiff have been sworn on affidavit and have been placed on record. On the other hand, due to the various discrepancies in the invoices which have been highlighted by the Plaintiff, the sales of the Defendant are not clear at this stage. It appears that there is also some manipulation of the e-way bill and tax invoice which has been placed on record. On the one hand, the tax invoices claim that the products sold are of ‘PLANT POWERED’, whereas in the e-way bill, there is no mention of the 13. The words ‘PLANT’ and ‘POWER’ by themselves, when considered as standalone words, may be descriptive. However, when used in conjunction with each other for identical products, there is likely to be confusion between the Plaintiff’s products and Defendant’s products, as is clear from the invoices which are placed on record by the ld. Counsel for the Defendant even today. 14. In this regard, the observations of the Supreme Court in Godfrey Philips India Ltd. v. Girnar Food and Beverages Pvt. Ltd. [(2004) 5 SCC 257] are relevant. The said observations reads as under: “4. Without going into the question whether the conclusion arrived at by the Division Bench that the trade mark is descriptive is correct or not, it appears to us, and as is conceded by both parties before us, that the enunciation of principle of law with regard to the protection available even in respect of the descriptive trade mark was wrong. A descriptive trade mark may be entitled to protection if it has assumed a secondary meaning which identifies it with a particular product or as being from a particular source. We, therefore, remand the matter back to the Division Bench of the High Court so that it may address its mind to this question without disturbing the other conclusions arrived at this stage. In the event, the Division Bench answers the additional issue formulated by us against the appellant, it will be open to the appellant to raise all the issues which have already been concluded and which are the subject matter of this appeal in any further appeal as it may be entitled to prefer from the final decision of the Division Bench. The Division Bench is directed to dispose of the appeal as expeditiously as is conveniently possible. It is made clear that the trial of the suit may also be proceeded with and concluded expeditiously without being inhibited either by the pendency of the appeal or by any observation in the orders of the High Court on the interlocutory application.” 15. This principle of law has been reiterated by the Bombay High Court in Sky Enterprise Private Ltd. v. Abaad Masala & Co. [2020 (5) ABR 500] “8. It is not in dispute that the Plaintiff not only has trademark registrations both for the device and word marks using the words 'Star Zing', such as 'Star Zing White Chinese Pepper Masala' and 'Star Zing Black Chinese Pepper Masala', but even for the word marks 'White Chinese Pepper Masala' and 'Black Chinese Pepper Masala' themselves, as separate and distinct registrations, and as of the date of this interim application, these registrations are very much valid and subsisting. If that is so, the Plaintiff is prima facie entitled to an interim injunction restraining the world at large from using these trademarks in connection with similar goods, unless the registration of these trademarks by the Plaintiffs can be shown to be demonstrably or ex facie illegal or fraudulent or shocking to the conscience of the Court. As noted by our Full Bench in Lupin Limited (Supra), the object of providing for registration of a trademark is to obviate the difficulty in proving in each and every case the plaintiff's title to the trademark; this object is achieved by raising a strong presumption in law as to the validity of the registration and conversely, by casting a heavy burden on the defendant to question such validity or rebut such presumption at the interlocutory stage. It is not sufficient for the Defendant in such a case to show that he has an arguable case in support of invalidity of the registration. Even prima facie satisfaction of the Court for stay of a trial under Section 124 of the Act is not enough to refuse such injunction. There is only a small window for opposing grant of such injunction, in the form of three exceptional circumstances, as noted by the Full Bench in Lupin Limited (Supra), namely, (i) ex facie illegality of registration, or (ii) fraudulent registration or (iii) registration that would shock the conscience of the Court. It is only through this small window that the Defendant can successfully defend his use of the infringing word/s. All that is alleged in support of such plea in the present case is that the marks consist of descriptive words. In the first place, it is not in any and every case, where the words forming part of a trademark are descriptive, that the applicant for registration is not entitled to it. Individual words in a given case may be descriptive, but their peculiar combination may yet create a unique appearance or identity. Secondly, by virtue of a long history of trading, it is quite possible that the mark, though it contains descriptive words, may have come to acquire a distinctive reputation and association with the Plaintiff's product alone and with no others. In all these cases, it is perfectly legitimate to obtain a registration and prevent use of identical or deceptively similar marks by others, in spite of the descriptive words forming part of the Plaintiff's trademark. Indeed, as the Supreme Court has observed in Godfrey Philips India Ltd. vs. Girnar Food and Beverages Pvt. Ltd. MANU/SC/0541/2004, a descriptive trademark may well be entitled to protection, if it has come to assume a secondary meaning, which identifies a particular product or products as coming from a particular source. 9. In the Plaintiff's case here, each individual word forming part of its registered trademark may well be a descriptive word; it may not be possible to claim any proprietary right over it; but no rival trader can use the particular combination and order in which the Plaintiff uses these words in its registered trademark to distinguish its goods, if the particular combination or order is not generally used in the trade for describing the character or quality of goods. A rival trader, for example, in the present case, may describe his product as 'pepper masala'; he may describe it as 'Chinese masala', he may even call it 'black masala', if that is the colour of its product; he may even write on the label that the product is a black masala made of pepper and is for Chinese cookery. But he surely cannot describe his goods as 'White Chinese Pepper Masala' or 'Black Chinese Pepper Masala', using the very same combination and order of words, which form the registered trademarks of the Plaintiff. Secondly, the Plaintiff has an arguable claim to registration of these trademarks, though they may be in a broad sense descriptive, on the footing that through their extensive use as trademarks for sale and promotion of its goods, the trademarks have come to acquire a distinctive reputation and association with its goods and no others. There is even material in the plaint to indicate that. The Plaintiff had initially registered its trademarks 'Star Zing White Chinese Pepper Masala' and 'Star Zing Black Chinese Pepper Masala' as far back as in 2012. Between the years 2012-2013 and 2015-2016, the Plaintiff's goods under the trademarks 'Star Zing White Chinese Pepper Masala' and 'Star Zing Black Chinese Pepper Masala' were extensively sold in the market, the sales rising progressively and exponentially and finally reaching to the tune of over Rs. 12.38 crores in the year 2015-2016 for 'Star Zing White Chinese Pepper Masala' and in the same year, of over Rs. 4.40 crores for 'Star Zing Black Chinese Pepper Masala'. It is possible to say that by that year, the words 'White Chinese Pepper Masala' and 'Black Chinese Pepper Masala' themselves had obtained a secondary meaning and association with the Plaintiff's goods and with no others. In fact, presumably in the light of this circumstance, in the year 2015-2016, the Plaintiff appears to have made an application for registration of word marks 'White Chinese Pepper Masala' and 'Black Chinese Pepper Masala' as separate word marks citing their user since 2012, and indeed, on that basis, even obtained registration from the Trademarks Registry. If that is so, it is permissible to term the words, in their peculiar combination and order, as distinctive, that is to say, as having acquired a secondary meaning and seek their registration as trademarks. Prima facie it is not possible to claim such registration as either ex facie illegal or fraudulent or shocking to the conscience of the 16. Similar is the view taken by the ld. Single Judge of this Court in Natures Essence Private Limited v. Protogreen Retail Solutions Private Limited and Ors. [2021 (86) PTC 225 (Del)]. The relevant paragraphs are “46.8. The contention, of Mr. Sharma, that the plaintiff cannot claim any trademark rights over the word "Nature", as it is descriptive in nature, is neither here nor there. In the first place, the plaintiffs trademark, of which it alleges infringement, is not "NATURE" per se, but "NATURE'S INC." or "NATURE'S ESSENCE". As I have already held hereinbefore, the defendant's mark is, visually and phonetically, deceptively similar to the plaintiff's "NATURE'S INC." mark, and conveys a deceptively similar idea to that conveyed by "NATURE'S ESSENCE", as has the potential of confusing a customer of average intelligence and imperfect recollection. Whether an intellectual property monopoly can be claimed in respect of the word "NATURE" is, therefore, really off the mark. It would be totally antithetical to all canons of trademark jurisprudence to question the validity of the or marks because Nature is a descriptive word. Once "Nature's" is used in conjunction with "Inc.", or "Essence", it assumes a definite and distinct- as well as distinctive-connotation and meaning, which is totally different from "Nature" per se. Even if "Inc." were to be treated as an acronym for Incorporated, the mark has a distinctive identity all its own, immediately apparent to the naked eye. Once, therefore, deceptive similarity is established, violation of the proprietorial right, of the plaintiff, over the or trademark, stands made out. Infringement being in the nature of a violation of the proprietorial right of the owner of a registered trade mark, a case of infringement stands, thereby, prima facie established.” 17. Similarly in Living Media India Limited v. Jitender V. Jain & Ors. [98 (2002) DLT 430], a ld. Single Judge of this Court has observed as under: “25. The word trade mark has been defined as a registered trade mark or a mark used in relation to goods for the purpose of indicating so as to indicate a connection in the course of trade between the goods and some person having the right as proprietor to use the mark. If any mark is used in relation to goods for the purpose of indicating or so as to indicate and some person having the right as proprietor it is a trade mark which becomes the property of its prior user even if it happens to be descriptive in nature but has been coined by it. 26. The mark is always used for the purpose of indicating either a connection in the course of trade between the goods and it is the prior user which provides the right of protection. Thus even if the adjective "Khabrein" is pre- fixed it does not make the trade mark "Khabrein Aaj Tak" distinct or different from the mark "AAJ TAK". 27. The word "AAJ TAK" itself is no distinctive that it has acquired such a meaning that any pre-fix of suffix would be of no relevance so far as the action of passing of is concerned. The only object and design of the defendant to adopt the word "AAJ TAK" was to trade and encash upon the goodwill of the plaintiff earned over the years through the advertisements and because of its extensive popularity. The mark "AAJ TAK" has become synonymous with the plaintiff so far as the news channel is concerned. 28. The word "AAJ" and "TAK" may be individually descriptive and dictionary word and may not be monopolised by any person but their combination does provide a protection as a trademark if it has been in long, prior and continuous user in relation to particular goods manufactured, sold by a particular person and by virtue of such user the mark gets identified with that person. It is so irrespective of the fact whether such a combination is descriptive in nature and has even a dictionary meaning. In such a case any other person may choose any of the two words viz. either "AAJ" or "TAK" as its trade name or mark but it has to prohibited from using the combination of these words as such a user not only creates confusion as to its source or origin but also bares the design or motive of its subsequent adopter. 29. Any kind of prefix or suffix would not make any difference so far as the trade name or for that purpose the domain name "AAJ TAK" is concerned. It is immaterial whether the defendant has no clientele or publication in Delhi. Channel "AAJ TAK" is a National Channel. It has widespread reputation and goodwill. Adoption of similar or deceptively similar mark amounts to passing off even if it has no local physical market, goodwill or reputation of a product or person is all pervasive. It is not confined in the four walls or to a particular territory. It has to be protected wherever it is threatened or is sought to be eroded or exploited. Merely because the product or mark adopted by a rival has no circulation or sale in the territory of the plaintiff's mark or product is no defense against protection of the mark. Protection of mark is in actuality protection of reputation and goodwill. At every cost the reputation has to be protected and preserved.” 18. In the opinion of this Court, both parties are selling the same kind of products. The mark of the Plaintiff is used prominently on its products. The Plaintiff is clearly the prior adopter and user of the mark. The Defendant’s conduct is far from bona fide as the user documents of 2020 filed by the Defendant do not inspire confidence at this stage. The Defendant not only uses the mark ‘PLANT POWERED’ as a mark but also as a trading style. When a search is conducted for a product of this nature on any e-commerce platform, it is normal for a user to type the words ‘PLANT POWERED’ in order to search for the product. If such a search is carried out, it would automatically throw up the results with the Plaintiff’s and Defendant’s product, which ought to be avoided. 19. In light of the facts and circumstances of the present case, the ex parte injunction granted on 24th February, 2022 is confirmed. The Defendant shall stand injuncted during the pendency of the present suit, from using the mark ‘PLANT POWERED’ conjunctively in relation to baby care or personal care products or any other goods falling under Classes 3 and 5, including but not limited to, face wash, face cream, shampoo, etc., and/or such allied and cognate goods. This would, however, not preclude the Defendant from using the word ‘PLANT’ and ‘POWER’ separately in a manner, so as to not cause any deception and confusion to the consumers, with the Plaintiff’s mark 20. As is evident from the packaging of the Defendant’s products, the products are shown to be marketed by ‘PLANT POWERED’. Thus, henceforth, the Defendant shall also not use the trading style ‘PLANT POWERED’ as an entity. The domain name ‘plantpowered.in’ shall also stand injuncted during the pendency of the present suit. 21. Insofar as discrepancy between the e-way bills and tax invoices, as elaborated above, is concerned, the Plaintiff is permitted to move an application seeking appropriate reliefs against the Defendant in this regard. 22. I.A. 3107/2022 is disposed of, in the above terms. 23. This is an application filed by the Plaintiff seeking appointment of Local Commissioner. Application is not pressed at this stage. 24. I.A. 3108/2022 is disposed of. 25. Written statements be filed in accordance with the timelines of the Commercial Courts Act, 2015, along with documents. Replication be also 26. List before the Registrar for completion of pleadings and marking of exhibits, on 28th April, 2022. (Corrected and released on 30th March, 2022)
The Delhi High Court recently upheld a temporary court order against someone, which was given without hearing the other side. This order helps "Plant Powered," a company that sells baby and personal care items. It's part of a lawsuit about using a brand name without permission. The Court disagreed with the company being sued (the "Defendant"). This company was also using 'Plant Powered' to sell similar products. The Defendant argued that 'Plant Powered' is just a descriptive term, meaning it simply describes the products, so no one company should own the right to use it. The Court said no to this argument. Justice Pratibha M. Singh said that since the Defendant themselves tried to register 'PLANT POWERED' as their own brand name, they can't now claim that it's just a general description of a product. The Judge also pointed out that on Amazon's website, the Defendant's product is simply called 'Plant Powered,' with no other words before it. This showed that 'Plant Powered' was being used as a brand name, not just to describe what the product does. The Court referred to a past case, Automatic Electric Limited versus R. K. Dhawan. In that case, it was decided that if a company tries to own a brand name like "DIMMER DOT," they can't then argue that "DIMMER" is just a common, general word. The High Court also noted that both the Plaintiff's and Defendant's products were sold on Amazon. This means if someone searched for 'Plant Powered,' both companies' products would appear, which the Court said should not happen because it causes confusion. Background The Court was reviewing a lawsuit started by Mother Sparsh Baby Care Pvt Ltd. This company wanted a permanent court order to stop the Defendant from illegally using their 'Plant Powered' brand name and from pretending their products were Mother Sparsh's (this is called "passing off"). The Plaintiff stated that their company was formed in 2016 and they started using the brand name 'Plant Powered' in 2019. They also said their product sales since 2019 totaled over 5.95 crore rupees, and they spent more than 4 crore rupees on advertising. The Plaintiff argued that after learning about the Defendant's actions, they sent a legal letter telling the Defendant to stop. But instead of replying, the Defendant complained to Amazon about the Plaintiff's products. This led to Amazon removing the Plaintiff's products from its website. The Plaintiff argued that the Defendant not only ignored the legal warning but also took steps against the Plaintiff at the same time. They said this showed the Defendant's bad intentions and dishonest behavior. On the other side, the Defendant claimed that 'Plant Powered' is just a descriptive name. They also said their products were easy to tell apart from the Plaintiff's because the Plaintiff uses its main brand name, 'Mother Sparsh,' on its products. The Defendant argued that they should also be allowed to use 'Plant Powered' as long as they added their own company logo, 'Bio International' or 'Bo International,' to it. The Defendant referred to another case, ITC Ltd. versus Britannia Industries Ltd. They argued that if a main brand name already makes two companies' products different, then adding 'Bo International' or 'Bio International' before 'Plant Powered' would be enough to clearly separate the Defendant's products from the Plaintiff's. Findings The High Court was initially convinced that the Plaintiff was the first to use and claim the 'Plant Powered' brand name since 2019. The Court stated that while "PLANT" and "POWER" on their own might just be descriptive words, when put together and used for the same kinds of products, they are likely to cause confusion between the Plaintiff's and Defendant's goods. The Court said this was evident even from the Defendant's own sales records presented in court. The Court also referred to the case of Godfrey Philips India Ltd. versus Girnar Food and Beverages Pvt. Ltd. This case decided that even a descriptive brand name can be protected if it has become so well-known that people associate it with a specific product or company. The Court also observed what seemed like changes or inconsistencies in the Defendant's electronic waybills and tax invoices. It pointed out that while the tax invoices stated the products were 'PLANT POWERED,' the e-way bills did not mention that brand name at all. Based on all these findings, the Defendant was temporarily ordered to stop using the name 'PLANT POWERED' together for baby care or personal care products, or any similar items in product categories 3 and 5, such as face wash, face cream, or shampoo, while the lawsuit is ongoing. The Defendant was also forbidden from using 'PLANT POWERED' as the name for their business or as a website address (plantpowered.in) while the case continues. However, the Court clarified that this order doesn't stop the Defendant from using the words 'PLANT' and 'POWER' separately, as long as it doesn't trick or confuse customers by making them think it's related to the Plaintiff's 'PLANT POWERED' brand. Regarding the differences found in the Defendant's e-way bills and tax invoices, the Plaintiff is allowed to ask the Court for further action against the Defendant.
Through: Mr. Sandeep Sethi, Sr. Advocate with 1. This hearing has been done through hybrid mode. 2. The Plaintiff has filed the present suit seeking permanent injunction, restraining infringement of trademark, passing off, dilution, unfair competition, delivery up, rendition of accounts, damages, and other reliefs in respect of the trademark ‘PLANT POWERED’. 3. The case of the Plaintiff is that it was incorporated in the year 2016, and over the years, it has sold various baby care and personal care products which are natural and eco-friendly, including detergent, lotions, face wash, face cream, sunscreen face mask etc., under the trademark ‘PLANT POWERED’. The trademark ‘PLANT POWERED’ was adopted by the Plaintiff in the year 2019, and has been using the said trademark along with Application No.4363416 dated 30th November, 2019 was filed by the Plaintiff in Class 3, along with the label which was used by the Plaintiff. The said mark was registered. Apart from the said application, the Plaintiff has sought registrations by way of other applications in Class 5, which are currently objected to and are pending examination. The Plaintiff has also sought registration of the device mark (‘PLANT 4. The sales of the Plaintiff’s products since the year 2019 is claimed to be Rs.5.95 crores, and the promotional expenses are claimed to be over Rs.4 crores. Various products of the Plaintiff have also been duly licenced under The Drugs and Cosmetics Act, 1940. 5. The grievance of the Plaintiff, in the present case, is that the Defendant No.1 – Mr. Aayush Gupta, who is also running two entities which are known by the names ‘Plant Powered’ and ‘Bo International’, applied for the registration of the mark (PLANT POWERED) with a flower logo. The said application was filed on 29th December, 2020 in Class 3 on a ‘proposed to be used’ basis. The said mark proceeded for registration and the Plaintiff has now filed a rectification seeking cancellation of the said 6. As per the Plaintiff, upon gaining knowledge of the said registration, the Plaintiff conducted a market survey and found a number of Defendant’s products on the e-commerce platform www.amazon.in (“Amazon”). The details of the said products, along with product codes, and Amazon Standard Identification Number (ASIN) are also set out in the plaint. 7. Mr. Sethi, ld. Senior Counsel appearing for the Plaintiff has made the i. A cease and desist notice was issued by the Plaintiff on 1st February, 2022. However, the Defendant did not respond to the same. Upon receiving the cease and desist notice, the Defendant wrote a complaint to Amazon, raising a grievance against the Plaintiff’s products, which resulted in an email being sent to the Plaintiff on 8th February, 2022. Subsequent emails were also received from Amazon, and the Plaintiff’s products were delisted from Amazon. Thus, the Defendant chose not to reply to the legal notice, but parallelly, took action against the Plaintiff which had addressed the legal notice to the Defendant. He submits that this shows the mala fide and dishonest nature of the Defendant’s conduct. ii. The Defendant is also using the name ‘PLANT POWERED’ as a trading style for identical goods. The domain name www.plantpowered.in has also been registered on 9th October, 2021. In view of the dates on which the trademark applications were filed and the domain name was registered, it is submitted that the Plaintiff is the prior user and adopter of the mark in respect of identical products. iii. It is also brought to the notice of this Court that the invoices which have been placed on record by the Defendant to plead user in the year 2020 are also completely manipulated and fabricated inasmuch as the corresponding e-way bills, which can be downloaded from the GST portal, would show that the mark ‘PLANT POWERED’ is not reflected in the corresponding e-way bill. Thus, it is submitted that strict action is liable to be taken against the Defendant for filing such manipulated and forged documents. iv. The website of the Defendant i.e., www.plantpowered.in, as on 21st February, 2022, merely mentioned ‘Opening Soon'. On the website www.boessentialoil.com as well, there was no reflection of any product by the name ‘PLANT POWERED’. 8. On the other hand, Ms. Mukherjee, ld. Counsel on behalf of the Defendant, makes the following submissions: i. The term ‘PLANT POWERED’ is a descriptive mark and there can be no monopoly over the same. There is no similarity between the Plaintiff’s products and the Defendants’ products. The products are clearly distinguishable as the house mark ‘MOTHER SPARSH’ is used by the Plaintiff for its products. Reliance is placed upon the judgments in Marico Limited v. Agro Tech Foods Limited [174 (2010) DLT 279], Intex Technologies v. 7392] as also ITC Ltd. & Ors. v. Britannia Industries Ltd. [2021 SCC OnLine Del 1489] to argue that once there is a house mark which a distinguishing factor between the two parties, if the Defendant adds the name ‘Bo International’ or ‘Bio International’ as a prefix to their mark, it would be sufficient to distinguish the Defendant’s products from the Plaintiff’s products. She further submits that her client is willing to incorporate a hyphen between the word ‘PLANT’ and ‘POWERED’ so that the same is clearly distinguishable from the Plaintiff’s products. ii. The gap between the adoption of the mark by the Plaintiff and the Defendant is not too long. The Defendant having spent huge amounts of money for promoting the products, the Defendant should be permitted to use the mark ‘PLANT POWERED’ along with the logo ‘Bio International’ or ‘Bo International’. In this background, she submits that some distinguishable features can be added which could distinguish the Defendant’s products with Plaintiff’s products. iii. She seeks to clarify and explain the discrepancy between the e- way bills and the invoice by submitting that the ‘PLANT POWERED’ name cannot be manually incorporated into the e- way bill. 9. Heard ld. Counsels for the parties. The question, in the present case, relates to the use of the word and the mark ‘PLANT POWERED’. Upon a perusal of the documents placed on record, prima facie, this Court is convinced that the Plaintiff is the prior adopter and the user of the said mark since the year 2019. The earliest document placed on record by the Defendant is one of December, 2020, when the trademark application was filed by the Defendant. 10. It is further noticed that the product of the Defendant is not described with any prefix on the website of Amazon. In fact, it is described as ‘PLANT POWERED’. Thus, it is clear that the mark ‘PLANT POWERED’ is being used as a trademark and not as a description of the products. Moreover, the fact that the Defendant itself applied for the trademark application and registration of the mark ‘PLANT POWERED’ means that they are estopped from claiming that the same is the description of the product. This is the settled legal position as per the judgement of this Court in Automatic Electric Limited v. R. K. Dhawan & Ors. [77 (1999) DLT 292]. The relevant observations from the said judgment read as under: “16. The defendants got their trade mark "DIMMER DOT" registered in Australia. The fact that the defendant itself has sought to claim trade proprietary right and monopoly in "DIMMER DOT", it does not lie in their mouth to say that the word "DIMMER" is a generic expression. User of the word "DIMMER" by others cannot be a defense available to the defendants, if it could be shown that the same is being used in violation of the statutory right of the plaintiff. In this connection, reference may be made to the decision of this Court in Prakash Road line Ltd. Vs. Prakash Parcel Service (P) Ltd.; reported in 1992(2) Arbitration Law Reporter page 174. Reference may also be made to the decision in P.M. Diesels Ltd. Vs . S.M. Diesels; reported in MANU/DE/0636/1994 : AIR1994Delhi264 . It was held in those decision that if the plaintiff is a proprietor of the registered trade mark, the same gives to the proprietor of the registered trade mark the exclusive right to use the trade mark with relation to goods in respect of which the trade mark is registered under the provisions of Section 28 of the Trade and Merchandise Marks Act. It was also held that such statutory right cannot be lost merely on the question of principles of delay, laches or acquiescence. It was also held that in general mere delay after knowledge of infringement does not deprive the registered proprietor of a trade mark of his statutory rights or of the appropriate remedy for the enforcement of those rights so long as the said delay is not an inordinate delay. In my considered opinion, the ratio of the aforesaid decisions are squarely applicable to the facts of the present case.” 11. Similar is the view taken in Procter & Gamble Manufacturing (Tianjin) Co. Ltd. and Ors. v. Anchor Health & Beauty Care Pvt. Ltd. [211 (2014) DLT 466], wherein it was held as under: respondent/plaintiff not using the registered trade mark "ALLROUND" owing to having suffixed it with the word "PROTECTION" is concerned, again, the appellants/defendants in the US, obtained registration of the mark "ALL-AROUND PROTECTION" disclaiming the word "PROTECTION". The same is indicative of the appellants/defendants admitted that use of the word "PROTECTION" as a suffix to the use of the registered mark "ALL-AROUND" not negating the use of the trade mark. The same reasoning, of approbate and reprobate, applied by the learned Single Judge, in our opinion, would apply to this aspect as well. (xix) As far as the contention, of Automatic Electric Ltd. (supra) having stood overruled by Marico Limited (supra) is concerned, we have perused Indian Hotels Company Ltd. (supra) and are unable to agree that the reference therein to Automatic Electric Ltd. is without affirming the same. It was the contention in Indian Hotels Company Ltd. also that the word "JIVA" therein was a descriptive word which could not be protected as a trade mark. The Division Bench however negated the said argument by holding that the appellant therein having itself applied for registration of "JIVA" as a trade mark, could not argue that the mark was descriptive. Reference to Automatic Electric Ltd. was made in support of the said reasoning. Unfortunately, neither Automatic Electric Ltd. nor Indian Hotels Company Ltd. were noticed in the subsequent judgment of the Division Bench in Marico Limited. We, at this interim stage are inclined to go along with the affirmation by the Division Bench in Indian Hotels Company Ltd. with the view in 12. The sales of the Plaintiff have been sworn on affidavit and have been placed on record. On the other hand, due to the various discrepancies in the invoices which have been highlighted by the Plaintiff, the sales of the Defendant are not clear at this stage. It appears that there is also some manipulation of the e-way bill and tax invoice which has been placed on record. On the one hand, the tax invoices claim that the products sold are of ‘PLANT POWERED’, whereas in the e-way bill, there is no mention of the 13. The words ‘PLANT’ and ‘POWER’ by themselves, when considered as standalone words, may be descriptive. However, when used in conjunction with each other for identical products, there is likely to be confusion between the Plaintiff’s products and Defendant’s products, as is clear from the invoices which are placed on record by the ld. Counsel for the Defendant even today. 14. In this regard, the observations of the Supreme Court in Godfrey Philips India Ltd. v. Girnar Food and Beverages Pvt. Ltd. [(2004) 5 SCC 257] are relevant. The said observations reads as under: “4. Without going into the question whether the conclusion arrived at by the Division Bench that the trade mark is descriptive is correct or not, it appears to us, and as is conceded by both parties before us, that the enunciation of principle of law with regard to the protection available even in respect of the descriptive trade mark was wrong. A descriptive trade mark may be entitled to protection if it has assumed a secondary meaning which identifies it with a particular product or as being from a particular source. We, therefore, remand the matter back to the Division Bench of the High Court so that it may address its mind to this question without disturbing the other conclusions arrived at this stage. In the event, the Division Bench answers the additional issue formulated by us against the appellant, it will be open to the appellant to raise all the issues which have already been concluded and which are the subject matter of this appeal in any further appeal as it may be entitled to prefer from the final decision of the Division Bench. The Division Bench is directed to dispose of the appeal as expeditiously as is conveniently possible. It is made clear that the trial of the suit may also be proceeded with and concluded expeditiously without being inhibited either by the pendency of the appeal or by any observation in the orders of the High Court on the interlocutory application.” 15. This principle of law has been reiterated by the Bombay High Court in Sky Enterprise Private Ltd. v. Abaad Masala & Co. [2020 (5) ABR 500] “8. It is not in dispute that the Plaintiff not only has trademark registrations both for the device and word marks using the words 'Star Zing', such as 'Star Zing White Chinese Pepper Masala' and 'Star Zing Black Chinese Pepper Masala', but even for the word marks 'White Chinese Pepper Masala' and 'Black Chinese Pepper Masala' themselves, as separate and distinct registrations, and as of the date of this interim application, these registrations are very much valid and subsisting. If that is so, the Plaintiff is prima facie entitled to an interim injunction restraining the world at large from using these trademarks in connection with similar goods, unless the registration of these trademarks by the Plaintiffs can be shown to be demonstrably or ex facie illegal or fraudulent or shocking to the conscience of the Court. As noted by our Full Bench in Lupin Limited (Supra), the object of providing for registration of a trademark is to obviate the difficulty in proving in each and every case the plaintiff's title to the trademark; this object is achieved by raising a strong presumption in law as to the validity of the registration and conversely, by casting a heavy burden on the defendant to question such validity or rebut such presumption at the interlocutory stage. It is not sufficient for the Defendant in such a case to show that he has an arguable case in support of invalidity of the registration. Even prima facie satisfaction of the Court for stay of a trial under Section 124 of the Act is not enough to refuse such injunction. There is only a small window for opposing grant of such injunction, in the form of three exceptional circumstances, as noted by the Full Bench in Lupin Limited (Supra), namely, (i) ex facie illegality of registration, or (ii) fraudulent registration or (iii) registration that would shock the conscience of the Court. It is only through this small window that the Defendant can successfully defend his use of the infringing word/s. All that is alleged in support of such plea in the present case is that the marks consist of descriptive words. In the first place, it is not in any and every case, where the words forming part of a trademark are descriptive, that the applicant for registration is not entitled to it. Individual words in a given case may be descriptive, but their peculiar combination may yet create a unique appearance or identity. Secondly, by virtue of a long history of trading, it is quite possible that the mark, though it contains descriptive words, may have come to acquire a distinctive reputation and association with the Plaintiff's product alone and with no others. In all these cases, it is perfectly legitimate to obtain a registration and prevent use of identical or deceptively similar marks by others, in spite of the descriptive words forming part of the Plaintiff's trademark. Indeed, as the Supreme Court has observed in Godfrey Philips India Ltd. vs. Girnar Food and Beverages Pvt. Ltd. MANU/SC/0541/2004, a descriptive trademark may well be entitled to protection, if it has come to assume a secondary meaning, which identifies a particular product or products as coming from a particular source. 9. In the Plaintiff's case here, each individual word forming part of its registered trademark may well be a descriptive word; it may not be possible to claim any proprietary right over it; but no rival trader can use the particular combination and order in which the Plaintiff uses these words in its registered trademark to distinguish its goods, if the particular combination or order is not generally used in the trade for describing the character or quality of goods. A rival trader, for example, in the present case, may describe his product as 'pepper masala'; he may describe it as 'Chinese masala', he may even call it 'black masala', if that is the colour of its product; he may even write on the label that the product is a black masala made of pepper and is for Chinese cookery. But he surely cannot describe his goods as 'White Chinese Pepper Masala' or 'Black Chinese Pepper Masala', using the very same combination and order of words, which form the registered trademarks of the Plaintiff. Secondly, the Plaintiff has an arguable claim to registration of these trademarks, though they may be in a broad sense descriptive, on the footing that through their extensive use as trademarks for sale and promotion of its goods, the trademarks have come to acquire a distinctive reputation and association with its goods and no others. There is even material in the plaint to indicate that. The Plaintiff had initially registered its trademarks 'Star Zing White Chinese Pepper Masala' and 'Star Zing Black Chinese Pepper Masala' as far back as in 2012. Between the years 2012-2013 and 2015-2016, the Plaintiff's goods under the trademarks 'Star Zing White Chinese Pepper Masala' and 'Star Zing Black Chinese Pepper Masala' were extensively sold in the market, the sales rising progressively and exponentially and finally reaching to the tune of over Rs. 12.38 crores in the year 2015-2016 for 'Star Zing White Chinese Pepper Masala' and in the same year, of over Rs. 4.40 crores for 'Star Zing Black Chinese Pepper Masala'. It is possible to say that by that year, the words 'White Chinese Pepper Masala' and 'Black Chinese Pepper Masala' themselves had obtained a secondary meaning and association with the Plaintiff's goods and with no others. In fact, presumably in the light of this circumstance, in the year 2015-2016, the Plaintiff appears to have made an application for registration of word marks 'White Chinese Pepper Masala' and 'Black Chinese Pepper Masala' as separate word marks citing their user since 2012, and indeed, on that basis, even obtained registration from the Trademarks Registry. If that is so, it is permissible to term the words, in their peculiar combination and order, as distinctive, that is to say, as having acquired a secondary meaning and seek their registration as trademarks. Prima facie it is not possible to claim such registration as either ex facie illegal or fraudulent or shocking to the conscience of the 16. Similar is the view taken by the ld. Single Judge of this Court in Natures Essence Private Limited v. Protogreen Retail Solutions Private Limited and Ors. [2021 (86) PTC 225 (Del)]. The relevant paragraphs are “46.8. The contention, of Mr. Sharma, that the plaintiff cannot claim any trademark rights over the word "Nature", as it is descriptive in nature, is neither here nor there. In the first place, the plaintiffs trademark, of which it alleges infringement, is not "NATURE" per se, but "NATURE'S INC." or "NATURE'S ESSENCE". As I have already held hereinbefore, the defendant's mark is, visually and phonetically, deceptively similar to the plaintiff's "NATURE'S INC." mark, and conveys a deceptively similar idea to that conveyed by "NATURE'S ESSENCE", as has the potential of confusing a customer of average intelligence and imperfect recollection. Whether an intellectual property monopoly can be claimed in respect of the word "NATURE" is, therefore, really off the mark. It would be totally antithetical to all canons of trademark jurisprudence to question the validity of the or marks because Nature is a descriptive word. Once "Nature's" is used in conjunction with "Inc.", or "Essence", it assumes a definite and distinct- as well as distinctive-connotation and meaning, which is totally different from "Nature" per se. Even if "Inc." were to be treated as an acronym for Incorporated, the mark has a distinctive identity all its own, immediately apparent to the naked eye. Once, therefore, deceptive similarity is established, violation of the proprietorial right, of the plaintiff, over the or trademark, stands made out. Infringement being in the nature of a violation of the proprietorial right of the owner of a registered trade mark, a case of infringement stands, thereby, prima facie established.” 17. Similarly in Living Media India Limited v. Jitender V. Jain & Ors. [98 (2002) DLT 430], a ld. Single Judge of this Court has observed as under: “25. The word trade mark has been defined as a registered trade mark or a mark used in relation to goods for the purpose of indicating so as to indicate a connection in the course of trade between the goods and some person having the right as proprietor to use the mark. If any mark is used in relation to goods for the purpose of indicating or so as to indicate and some person having the right as proprietor it is a trade mark which becomes the property of its prior user even if it happens to be descriptive in nature but has been coined by it. 26. The mark is always used for the purpose of indicating either a connection in the course of trade between the goods and it is the prior user which provides the right of protection. Thus even if the adjective "Khabrein" is pre- fixed it does not make the trade mark "Khabrein Aaj Tak" distinct or different from the mark "AAJ TAK". 27. The word "AAJ TAK" itself is no distinctive that it has acquired such a meaning that any pre-fix of suffix would be of no relevance so far as the action of passing of is concerned. The only object and design of the defendant to adopt the word "AAJ TAK" was to trade and encash upon the goodwill of the plaintiff earned over the years through the advertisements and because of its extensive popularity. The mark "AAJ TAK" has become synonymous with the plaintiff so far as the news channel is concerned. 28. The word "AAJ" and "TAK" may be individually descriptive and dictionary word and may not be monopolised by any person but their combination does provide a protection as a trademark if it has been in long, prior and continuous user in relation to particular goods manufactured, sold by a particular person and by virtue of such user the mark gets identified with that person. It is so irrespective of the fact whether such a combination is descriptive in nature and has even a dictionary meaning. In such a case any other person may choose any of the two words viz. either "AAJ" or "TAK" as its trade name or mark but it has to prohibited from using the combination of these words as such a user not only creates confusion as to its source or origin but also bares the design or motive of its subsequent adopter. 29. Any kind of prefix or suffix would not make any difference so far as the trade name or for that purpose the domain name "AAJ TAK" is concerned. It is immaterial whether the defendant has no clientele or publication in Delhi. Channel "AAJ TAK" is a National Channel. It has widespread reputation and goodwill. Adoption of similar or deceptively similar mark amounts to passing off even if it has no local physical market, goodwill or reputation of a product or person is all pervasive. It is not confined in the four walls or to a particular territory. It has to be protected wherever it is threatened or is sought to be eroded or exploited. Merely because the product or mark adopted by a rival has no circulation or sale in the territory of the plaintiff's mark or product is no defense against protection of the mark. Protection of mark is in actuality protection of reputation and goodwill. At every cost the reputation has to be protected and preserved.” 18. In the opinion of this Court, both parties are selling the same kind of products. The mark of the Plaintiff is used prominently on its products. The Plaintiff is clearly the prior adopter and user of the mark. The Defendant’s conduct is far from bona fide as the user documents of 2020 filed by the Defendant do not inspire confidence at this stage. The Defendant not only uses the mark ‘PLANT POWERED’ as a mark but also as a trading style. When a search is conducted for a product of this nature on any e-commerce platform, it is normal for a user to type the words ‘PLANT POWERED’ in order to search for the product. If such a search is carried out, it would automatically throw up the results with the Plaintiff’s and Defendant’s product, which ought to be avoided. 19. In light of the facts and circumstances of the present case, the ex parte injunction granted on 24th February, 2022 is confirmed. The Defendant shall stand injuncted during the pendency of the present suit, from using the mark ‘PLANT POWERED’ conjunctively in relation to baby care or personal care products or any other goods falling under Classes 3 and 5, including but not limited to, face wash, face cream, shampoo, etc., and/or such allied and cognate goods. This would, however, not preclude the Defendant from using the word ‘PLANT’ and ‘POWER’ separately in a manner, so as to not cause any deception and confusion to the consumers, with the Plaintiff’s mark 20. As is evident from the packaging of the Defendant’s products, the products are shown to be marketed by ‘PLANT POWERED’. Thus, henceforth, the Defendant shall also not use the trading style ‘PLANT POWERED’ as an entity. The domain name ‘plantpowered.in’ shall also stand injuncted during the pendency of the present suit. 21. Insofar as discrepancy between the e-way bills and tax invoices, as elaborated above, is concerned, the Plaintiff is permitted to move an application seeking appropriate reliefs against the Defendant in this regard. 22. I.A. 3107/2022 is disposed of, in the above terms. 23. This is an application filed by the Plaintiff seeking appointment of Local Commissioner. Application is not pressed at this stage. 24. I.A. 3108/2022 is disposed of. 25. Written statements be filed in accordance with the timelines of the Commercial Courts Act, 2015, along with documents. Replication be also 26. List before the Registrar for completion of pleadings and marking of exhibits, on 28th April, 2022. (Corrected and released on 30th March, 2022)
The Delhi High Court recently upheld a temporary court order against someone, which was given without hearing the other side. This order helps "Plant Powered," a company that sells baby and personal care items. It's part of a lawsuit about using a brand name without permission. The Court disagreed with the company being sued (the "Defendant"). This company was also using 'Plant Powered' to sell similar products. The Defendant argued that 'Plant Powered' is just a descriptive term, meaning it simply describes the products, so no one company should own the right to use it. The Court said no to this argument. Justice Pratibha M. Singh said that since the Defendant themselves tried to register 'PLANT POWERED' as their own brand name, they can't now claim that it's just a general description of a product. The Judge also pointed out that on Amazon's website, the Defendant's product is simply called 'Plant Powered,' with no other words before it. This showed that 'Plant Powered' was being used as a brand name, not just to describe what the product does. The Court referred to a past case, Automatic Electric Limited versus R. K. Dhawan. In that case, it was decided that if a company tries to own a brand name like "DIMMER DOT," they can't then argue that "DIMMER" is just a common, general word. The High Court also noted that both the Plaintiff's and Defendant's products were sold on Amazon. This means if someone searched for 'Plant Powered,' both companies' products would appear, which the Court said should not happen because it causes confusion. Background The Court was reviewing a lawsuit started by Mother Sparsh Baby Care Pvt Ltd. This company wanted a permanent court order to stop the Defendant from illegally using their 'Plant Powered' brand name and from pretending their products were Mother Sparsh's (this is called "passing off"). The Plaintiff stated that their company was formed in 2016 and they started using the brand name 'Plant Powered' in 2019. They also said their product sales since 2019 totaled over 5.95 crore rupees, and they spent more than 4 crore rupees on advertising. The Plaintiff argued that after learning about the Defendant's actions, they sent a legal letter telling the Defendant to stop. But instead of replying, the Defendant complained to Amazon about the Plaintiff's products. This led to Amazon removing the Plaintiff's products from its website. The Plaintiff argued that the Defendant not only ignored the legal warning but also took steps against the Plaintiff at the same time. They said this showed the Defendant's bad intentions and dishonest behavior. On the other side, the Defendant claimed that 'Plant Powered' is just a descriptive name. They also said their products were easy to tell apart from the Plaintiff's because the Plaintiff uses its main brand name, 'Mother Sparsh,' on its products. The Defendant argued that they should also be allowed to use 'Plant Powered' as long as they added their own company logo, 'Bio International' or 'Bo International,' to it. The Defendant referred to another case, ITC Ltd. versus Britannia Industries Ltd. They argued that if a main brand name already makes two companies' products different, then adding 'Bo International' or 'Bio International' before 'Plant Powered' would be enough to clearly separate the Defendant's products from the Plaintiff's. Findings The High Court was initially convinced that the Plaintiff was the first to use and claim the 'Plant Powered' brand name since 2019. The Court stated that while "PLANT" and "POWER" on their own might just be descriptive words, when put together and used for the same kinds of products, they are likely to cause confusion between the Plaintiff's and Defendant's goods. The Court said this was evident even from the Defendant's own sales records presented in court. The Court also referred to the case of Godfrey Philips India Ltd. versus Girnar Food and Beverages Pvt. Ltd. This case decided that even a descriptive brand name can be protected if it has become so well-known that people associate it with a specific product or company. The Court also observed what seemed like changes or inconsistencies in the Defendant's electronic waybills and tax invoices. It pointed out that while the tax invoices stated the products were 'PLANT POWERED,' the e-way bills did not mention that brand name at all. Based on all these findings, the Defendant was temporarily ordered to stop using the name 'PLANT POWERED' together for baby care or personal care products, or any similar items in product categories 3 and 5, such as face wash, face cream, or shampoo, while the lawsuit is ongoing. The Defendant was also forbidden from using 'PLANT POWERED' as the name for their business or as a website address (plantpowered.in) while the case continues. However, the Court clarified that this order doesn't stop the Defendant from using the words 'PLANT' and 'POWER' separately, as long as it doesn't trick or confuse customers by making them think it's related to the Plaintiff's 'PLANT POWERED' brand. Regarding the differences found in the Defendant's e-way bills and tax invoices, the Plaintiff is allowed to ask the Court for further action against the Defendant.
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This matrimonial appeal filed by wife is directed against the judgment of the Family Court, Mavelikkara (for short, 'the court below') dismissing the original petition filed by her against her husband for divorce on the ground of cruelty and desertion. 2. The marriage between the appellant and the respondent was solemnized on 28/6/2009 as per the Hindu religious rites and ceremonies. In the wedlock, a child was born 3. The appellant as well as the respondent were working at Sultanate of Oman at the time of marriage. After a few days of marriage, i.e, on 15/7/2009, the appellant and the respondent went back to Sultanate of Oman to resume their job. According to the appellant, while they were living together in Sultanate of Oman, the respondent made false allegations of unchastity against her and the said allegations were spread among his relatives as well as the co-workers of her father. The appellant alleged that the respondent spread about the said false allegations of unchastity to his maternal uncle, Sri.Hari and his aunt, Smt.Usha Pillai, residing at U.S.A who in turn sent Ext. A2 email message to her alleging infidelity on her part. According to the appellant, the said false imputation of adulterous conduct made by the respondent lowered her reputation in the estimate of others including co-workers and, thus, she cannot be expected to live with the respondent. It is further alleged that while they were living together at Sultanate of Oman, the respondent used to pick up quarrels with her on the issue of unchastity and on 1/3/2012, he brutally assaulted her as well. It is also alleged that, from 1/3/2012 onwards, she has been living separately from the respondent who has deserted her with permanent intention to break the marital relationship between them. It was in these circumstances, the appellant preferred the Original Petition for dissolution of marriage on the ground of cruelty and desertion. 4. The respondent entered appearance in the court below and filed objection statement. He specifically denied the instance of cruelty allegedly exercised by him on the appellant and pleaded in the original petition. The respondent also denied the allegation in the original petition that he has made false allegation of unchastity against the appellant. According to him, it was the appellant who often quarelled with him and failed to discharge her marital obligation. It is also contended that the appellant has always been highly passionate for luxurious life and he was forced to succumb to her needs. Ext. A2 email was denied. He asserted that he is ready to reside with the appellant and discharge his marital obligations even now. The respondent sought for the dismissal of the petition. 5. The respondent has also filed a petition under the Guardian and Wards Act for the permanent custody of the child before the court below. Both original petitions were tried together by the court below. On the side of the appellant, PW1 and PW2 were examined and Exts. A1 to A3 were marked. On the side of the respondent, RW1 and RW2 were examined and Exts. B1 to B5 series were marked. After trial, the court below found that the appellant has failed to prove cruelty as well as desertion and accordingly the original petition was dismissed as per the impugned judgment. Challenging the said judgment, the appellant preferred this appeal. 6. We have heard Sri.Nagaraj Narayanan, the learned counsel for the appellant and Sri.Jacob P.Alex, the learned counsel for the respondent. 7. The learned counsel for the appellant submitted that the appellant is not pressing the prayer for dissolution of marriage on the ground of desertion. Thus, what survives for consideration is only the ground of cruelty. 8. The learned counsel for the appellant assails the impugned judgment on the ground that the court below was unreasonable and unrealistic in the appreciation of oral as well as documentary evidence. The learned counsel submitted that the evidence on record, both oral and documentary, would clearly prove that the respondent has exercised cruelty, both physically and mentally, on the appellant. The learned counsel for the respondent on the contrary submitted that the evidence on record is insufficient to prove cruelty alleged so as to grant a decree for dissolution of marriage and, thus, the court below was absolutely justified in dismissing the original petition. 9. As stated already, at the time of marriage, both the appellant and the respondent were employed at Sultanate of Oman. The father of the appellant was employed in the same company where the respondent was employed. After a few days of marriage, the appellant and the respondent went to Sultanate of Oman and they resided together. According to the appellant, during this period, matrimonial dispute developed between them which were further intensified by passage of time. It is specifically alleged by the appellant that, on 1/3/2012, there was an incident of physical assault and from the said date onwards they have been living separately. This is specifically disputed by the respondent. However, the respondent also admits that since 23/3/2014, they have been living separately. 10. Cruelty as a matrimonial offence is the conduct in relation to or in respect of matrimonial duties and obligations. It is settled that physical violence is not absolutely essential to constitute cruelty; a cruelty complained of may be mental or physical. Mental cruelty is a state of mind and feeling with one of the spouses due to the behaviour or behavioural pattern by the other and inference can be drawn from the attending facts and circumstances taken cumulatively. The Supreme Court in Dr.N.G.Dastane v. Mrs.S.Dastane (AIR 1995 SC 1534) has held that the standard of proof in matrimonial cases would be same as in civil cases, i.e., the Court has to decide the cases based on preponderance of probabilities. Therefore, the Court has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. 11. The main allegation of mental cruelty on the part of the respondent canvassed by the appellant is the false allegation of unchastity made by him against her. It is settled that the unsubstantiated accusation and character assassination by one spouse against the other would constitute mental cruelty. The Supreme Court in Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate (AIR 2003 SC 2462) has held that unsubstantiated disgusting accusations made by one spouse against the other in the written statement constitutes mental cruelty for sustaining the claim for divorce. In K. Srinivas Rao v. D. A. Deepa (AIR 2013 SC 2176), it was held that making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings amount to causing mental cruelty to the other spouse. Again, the Supreme Court in Raj Talreja v. Kavita Talreja (2017 KHC 6335) has held that the reckless, defamatory and false accusations made by the wife against her husband, his family members and colleagues would definitely have the effect of lowering his reputation in the eyes of his peers and, thus amounts to cruelty. In Gangadharan v. T. T. Thankam (AIR 1988 Kerala 244), this Court held that false, scandalous, malicious, baseless and unproved allegation made by one spouse, whether by letters or written statement or by any other mode, amounts to cruelty. 12. The appellant relies on her own evidence as PW1 and the oral testimony of her mother, who was examined as PW2 and Ext. A2, the copy of the email, to prove the case set up by her. The court below on appreciation of evidence found that the oral testimonies of PW1 and PW2 are not reliable and that Ext. A2 cannot be relied on without examining its author. It was further found that the there is nothing on record to show that the imputations in Ext. A2 regarding the infidelity of the appellant was furnished by the respondent to his aunt, who sent Ext.A2 to him. Relying on the entries in Ext. B4 passport of the respondent, it was found that the respondent was in India on 1/3/2012, the date of the alleged physical cruelty, and hence, the said incident also cannot be said to be proved. 13. The pleadings, oral evidence of PW1 and PW2 as well as the contents in Ext. A2 have to be appreciated and evaluated together to find out whether the case set up by the appellant that the respondent has made false accusation of unchastity against her is true or not. There is specific pleading in the petition that while the parties were living together at Sultanate of Oman, the respondent made false allegation of unchastity against the appellant, the allegation was also spread among the relatives of the respondent as well as among the co-workers of the father of the appellant and that the respondent spread about the alleged unchastity to his uncle and aunt residing at USA and on 4/3/2012, the respondent's aunt Smt.Usha Pillai sent an email message to the appellant alleging that she was caught hold of by police with a boy friend and both of them were taken to police station. The appellant asserted that there was no such incident as alleged in the email and there is absolutely no truth in the allegation of unchastity levelled against her. The appellant also gave oral evidence in tune with the pleadings. 14. To corroborate her oral testimony, the appellant has produced the most crucial document Ext. A2, the copy of the email. The learned counsel for the respondent submitted that Ext. A2 could not have been even admitted in view of the provisions of Sections 65 and 65B of the Evidence Act. The learned counsel further submitted that Ext. A2 is only an unauthenticated copy and its author has not been examined and hence no reliance can be placed on the same. The counsel also submitted that even if it is admitted that Ext. A2 is an email message sent by Smt. Usha Pillai, the aunt of the respondent, then also, the respondent cannot be held liable for its contents inasmuch as nowhere is it stated in Ext. A2 that the information about the illicit affair of the appellant was furnished by the respondent. We are unable to agree with the learned counsel for the respondent. 15. The technicalities of the Evidence Act cannot be imported to a proceedings before the Family Court because Section 14 of the Family Courts Act authorizes a Family Court to receive as evidence any report, statement, document, information or matter that may, in its opinion assist it to deal effectually with a dispute irrespective of whether it is relevant or admissible under the Indian Evidence Act, 1972. It is discernible from Section 14 that the technicalities of Indian Evidence Act regarding the admissibility or relevancy of evidence are not strictly applicable to the proceedings under the Family Court and in the matrimonial dispute before the Family Court, a discretion has been given to the court to rely on the documents produced if the court is satisfied that it is required to assist the court to effectively deal with the dispute. 16. Now, we will come to the contents of Ext. A2. Ext. A2 mail was sent by the aunt of the respondent Smt. Usha Pillai to the appellant on 04/03/2012. In fact, it was in response to a mail sent by the appellant to her on 29/01/2012. The said mail also forms part of Ext. A2. A reading of the mail dated 29/01/2012 would show that the appellant informed about her strained relationship with the respondent to Smt.Usha Pillai and sought her version in the matter. A reading of the mail dated 04/03/2012 which runs into two pages would show that Smt.Usha Pillai and her husband Sri.Hari knew about the marital problems between the appellant and the respondent and they had intervened in it. It is specifically stated in the mail that Smt.Usha Pillai had spoken to the respondent about the marital problems between him and the appellant and she heard what the respondent has to say in the matter. It is also further stated in the said mail that the respondent had knowledge about the boy friend of the appellant even before the marriage. There is a specific aspersion in Ext. A2 that the appellant was caught hold of by police along with a boy friend and both of them were taken to police station. It is further stated in Ext. A2 that the respondent had told Smt. Usha Pillai and her husband that the appellant was trying to get the baby’s surgery done without his consent. Smt. Usha Pillai has even doubted the paternity of the child. The respondent was cross- examined in length as to the contents of Ext. A2. He deposed that he came to know of Ext. A2 and its contents including the allegation regarding unchastity when he received the notice in the original petition. Still, he did not ask about it to Smt.Usha Pillai. At the same time, he stated that he enquired about Ext. A2 with his uncle, the husband of Smt. Usha Pillai, who admitted that Smt. Usha Pillai had sent Ext. A2 to the appellant. He also stated that he picked up quarrel with his uncle on that count. That apart, in the original petition for custody filed by the respondent before the court below, he has stated that the appellant had an affair with another person. All these circumstances indicate that it was the respondent who told Smt. Usha Pillai that the appellant was caught hold of by the police along with a boy friend and both of them were taken to the police station. Fore all theses reasons, we are of the view that the contents in Ext. A2 can safely be relied upon. 17. PW2, the mother of PW1, has also given evidence that the respondent used to pick up quarrel with the appellant alleging that she was having extra-marital relationship with another person. She deposed that the respondent has spread the said allegation among his relatives. Even though PW2 has been cross- examined in length, nothing tangible has been brought out to discredit her testimony. We also find no reason to disbelieve the evidence tendered by PW1 that the allegation of unchastity was spread by the respondent among the co-workers of her father. Admittedly, father of the appellant and the respondent were working in the same company in the Sultanate of Oman. The respondent has miserably failed to substantiate the imputation made by him that the appellant has relationship with another person and she is an unchaste woman. Levelling disgusting accusation of unchastity and attributing aspersions of perfidiousness to the wife would undoubtedly amount to worst form of mental cruelty. No wife can tolerate such accusation. On going through the relevant portions of imputations in Ext. A2, we find that they are of such quality, magnitude and consequence as to cause reasonable apprehension in the mind of the appellant that it is not safe for her to continue the marital tie. Inasmuch as the mental cruelty on this ground has been established, it is immaterial whether the allegation of physical assault on 1/3/2012 has been substantiated or not in order to grant a decree for dissolution of marriage on the ground of cruelty. 18. On an overall appreciation of the pleadings and evidence, we find that the appellant has made out a case for granting a decree for dissolution of marriage on the ground of cruelty u/s 13(1)(ib) of the Hindu Marriage Act, 1955. The court below went wrong in dismissing the original petition for dissolution of marriage. The impugned judgment, thus, rejecting the prayer for dissolution of marriage on the ground of cruelty is liable to be set aside. We do so. In the result, the appeal is allowed. The impugned judgment is set aside. OP No.758/2014 on the file of Family Court, Mavelikkara is allowed. The marriage between the appellant and the respondent solemnized on 28/6/2009 stands dissolved. No order as to costs.
The Kerala High Court decided on Monday that making untrue accusations and attacking the character of a spouse counts as "mental cruelty" in a marriage. This decision was made when they approved an appeal in a marriage case. Two judges, Justice A. Muhamed Mustaqu and Justice Kauser Edappagath, said the following: "The husband (respondent) could not prove his claim that his wife (appellant) was having an affair and was not faithful. Making such terrible accusations that a wife is unfaithful and dishonest is clearly a very bad kind of mental cruelty." The wife, Sabitha Unnikrishnan, took her case to the High Court. She was appealing a decision by the Mavelikkara Family Court. That court had rejected her request for a divorce, saying she hadn't shown enough proof of cruelty from her husband. Both the husband and wife worked in Oman. The wife said that while they lived together, her husband falsely accused her of being unfaithful. He spread these rumors to his family and at his workplace, which was also where her father worked. Later, the wife received an email from her husband's aunt in the U.S. The email claimed the wife had been unfaithful. It said she was caught by the police with her boyfriend and taken to the police station with him. The wife stated that these false claims from her husband about her being unfaithful damaged her reputation, even among her co-workers. Because of this, she argued she couldn't be expected to live with him anymore. She also said her husband often argued with her, doubting her faithfulness. The appeal also mentioned that the husband physically attacked his wife in March 2012. After that incident, they stopped living together. The wife's lawyer, Adv. Nagaraj Narayanan, argued that the spoken and written evidence clearly showed the husband had been both mentally and physically cruel to his wife. But the husband's lawyer, Adv. Jacob P. Alex, denied these claims. He said his client was still willing to live with his wife and fulfill his duties as a husband. Because of this, the husband asked the court to reject the divorce request. Also, the husband argued that the email was just an unverified copy, and the person who wrote it hadn't been questioned in court. So, he said the email shouldn't be used as proof. Even if the court accepted that his aunt sent the email, the husband claimed he wasn't responsible for what it said. He argued the email didn't state that *he* was the one who told his aunt about his wife's supposed unfaithfulness. The two judges looked at the arguments from both lawyers. They noted that the strict rules of the Evidence Act don't always apply in Family Court cases. Section 14 of the Family Courts Act allows a Family Court to use any document if the court believes it will help them resolve the case properly. The Court also pointed out that the situation suggested the husband was the one who told his aunt about his wife being caught with her boyfriend by the police. Because of this, the Court decided that the email's content could be trusted. The husband also couldn't provide any solid evidence to prove his wife's statements were false. The judges then spoke about the claim of cruelty made by the wife, saying: "Cruelty in a marriage means actions related to a couple's duties to each other. It is understood that physical violence isn't always needed for cruelty to exist; cruelty can be mental or physical. Mental cruelty happens when one spouse feels upset because of the other's actions. This can be figured out by looking at all the facts and situations together." The Court weighed the likelihood of what happened in this case. They found that the wife's main claim of mental cruelty from her husband was his false accusation that she was unfaithful. Therefore, the Court decided that the husband's accusations were serious enough to make the wife reasonably fear that it was not safe for her to stay married. The judges gave the wife a divorce based on cruelty, according to Section 13(1)(ib) of the Hindu Marriage Act. This decision came after carefully reviewing all the statements and evidence. The wife's appeal was approved, and the earlier court decision was overturned.
This matrimonial appeal filed by wife is directed against the judgment of the Family Court, Mavelikkara (for short, 'the court below') dismissing the original petition filed by her against her husband for divorce on the ground of cruelty and desertion. 2. The marriage between the appellant and the respondent was solemnized on 28/6/2009 as per the Hindu religious rites and ceremonies. In the wedlock, a child was born 3. The appellant as well as the respondent were working at Sultanate of Oman at the time of marriage. After a few days of marriage, i.e, on 15/7/2009, the appellant and the respondent went back to Sultanate of Oman to resume their job. According to the appellant, while they were living together in Sultanate of Oman, the respondent made false allegations of unchastity against her and the said allegations were spread among his relatives as well as the co-workers of her father. The appellant alleged that the respondent spread about the said false allegations of unchastity to his maternal uncle, Sri.Hari and his aunt, Smt.Usha Pillai, residing at U.S.A who in turn sent Ext. A2 email message to her alleging infidelity on her part. According to the appellant, the said false imputation of adulterous conduct made by the respondent lowered her reputation in the estimate of others including co-workers and, thus, she cannot be expected to live with the respondent. It is further alleged that while they were living together at Sultanate of Oman, the respondent used to pick up quarrels with her on the issue of unchastity and on 1/3/2012, he brutally assaulted her as well. It is also alleged that, from 1/3/2012 onwards, she has been living separately from the respondent who has deserted her with permanent intention to break the marital relationship between them. It was in these circumstances, the appellant preferred the Original Petition for dissolution of marriage on the ground of cruelty and desertion. 4. The respondent entered appearance in the court below and filed objection statement. He specifically denied the instance of cruelty allegedly exercised by him on the appellant and pleaded in the original petition. The respondent also denied the allegation in the original petition that he has made false allegation of unchastity against the appellant. According to him, it was the appellant who often quarelled with him and failed to discharge her marital obligation. It is also contended that the appellant has always been highly passionate for luxurious life and he was forced to succumb to her needs. Ext. A2 email was denied. He asserted that he is ready to reside with the appellant and discharge his marital obligations even now. The respondent sought for the dismissal of the petition. 5. The respondent has also filed a petition under the Guardian and Wards Act for the permanent custody of the child before the court below. Both original petitions were tried together by the court below. On the side of the appellant, PW1 and PW2 were examined and Exts. A1 to A3 were marked. On the side of the respondent, RW1 and RW2 were examined and Exts. B1 to B5 series were marked. After trial, the court below found that the appellant has failed to prove cruelty as well as desertion and accordingly the original petition was dismissed as per the impugned judgment. Challenging the said judgment, the appellant preferred this appeal. 6. We have heard Sri.Nagaraj Narayanan, the learned counsel for the appellant and Sri.Jacob P.Alex, the learned counsel for the respondent. 7. The learned counsel for the appellant submitted that the appellant is not pressing the prayer for dissolution of marriage on the ground of desertion. Thus, what survives for consideration is only the ground of cruelty. 8. The learned counsel for the appellant assails the impugned judgment on the ground that the court below was unreasonable and unrealistic in the appreciation of oral as well as documentary evidence. The learned counsel submitted that the evidence on record, both oral and documentary, would clearly prove that the respondent has exercised cruelty, both physically and mentally, on the appellant. The learned counsel for the respondent on the contrary submitted that the evidence on record is insufficient to prove cruelty alleged so as to grant a decree for dissolution of marriage and, thus, the court below was absolutely justified in dismissing the original petition. 9. As stated already, at the time of marriage, both the appellant and the respondent were employed at Sultanate of Oman. The father of the appellant was employed in the same company where the respondent was employed. After a few days of marriage, the appellant and the respondent went to Sultanate of Oman and they resided together. According to the appellant, during this period, matrimonial dispute developed between them which were further intensified by passage of time. It is specifically alleged by the appellant that, on 1/3/2012, there was an incident of physical assault and from the said date onwards they have been living separately. This is specifically disputed by the respondent. However, the respondent also admits that since 23/3/2014, they have been living separately. 10. Cruelty as a matrimonial offence is the conduct in relation to or in respect of matrimonial duties and obligations. It is settled that physical violence is not absolutely essential to constitute cruelty; a cruelty complained of may be mental or physical. Mental cruelty is a state of mind and feeling with one of the spouses due to the behaviour or behavioural pattern by the other and inference can be drawn from the attending facts and circumstances taken cumulatively. The Supreme Court in Dr.N.G.Dastane v. Mrs.S.Dastane (AIR 1995 SC 1534) has held that the standard of proof in matrimonial cases would be same as in civil cases, i.e., the Court has to decide the cases based on preponderance of probabilities. Therefore, the Court has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. 11. The main allegation of mental cruelty on the part of the respondent canvassed by the appellant is the false allegation of unchastity made by him against her. It is settled that the unsubstantiated accusation and character assassination by one spouse against the other would constitute mental cruelty. The Supreme Court in Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate (AIR 2003 SC 2462) has held that unsubstantiated disgusting accusations made by one spouse against the other in the written statement constitutes mental cruelty for sustaining the claim for divorce. In K. Srinivas Rao v. D. A. Deepa (AIR 2013 SC 2176), it was held that making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings amount to causing mental cruelty to the other spouse. Again, the Supreme Court in Raj Talreja v. Kavita Talreja (2017 KHC 6335) has held that the reckless, defamatory and false accusations made by the wife against her husband, his family members and colleagues would definitely have the effect of lowering his reputation in the eyes of his peers and, thus amounts to cruelty. In Gangadharan v. T. T. Thankam (AIR 1988 Kerala 244), this Court held that false, scandalous, malicious, baseless and unproved allegation made by one spouse, whether by letters or written statement or by any other mode, amounts to cruelty. 12. The appellant relies on her own evidence as PW1 and the oral testimony of her mother, who was examined as PW2 and Ext. A2, the copy of the email, to prove the case set up by her. The court below on appreciation of evidence found that the oral testimonies of PW1 and PW2 are not reliable and that Ext. A2 cannot be relied on without examining its author. It was further found that the there is nothing on record to show that the imputations in Ext. A2 regarding the infidelity of the appellant was furnished by the respondent to his aunt, who sent Ext.A2 to him. Relying on the entries in Ext. B4 passport of the respondent, it was found that the respondent was in India on 1/3/2012, the date of the alleged physical cruelty, and hence, the said incident also cannot be said to be proved. 13. The pleadings, oral evidence of PW1 and PW2 as well as the contents in Ext. A2 have to be appreciated and evaluated together to find out whether the case set up by the appellant that the respondent has made false accusation of unchastity against her is true or not. There is specific pleading in the petition that while the parties were living together at Sultanate of Oman, the respondent made false allegation of unchastity against the appellant, the allegation was also spread among the relatives of the respondent as well as among the co-workers of the father of the appellant and that the respondent spread about the alleged unchastity to his uncle and aunt residing at USA and on 4/3/2012, the respondent's aunt Smt.Usha Pillai sent an email message to the appellant alleging that she was caught hold of by police with a boy friend and both of them were taken to police station. The appellant asserted that there was no such incident as alleged in the email and there is absolutely no truth in the allegation of unchastity levelled against her. The appellant also gave oral evidence in tune with the pleadings. 14. To corroborate her oral testimony, the appellant has produced the most crucial document Ext. A2, the copy of the email. The learned counsel for the respondent submitted that Ext. A2 could not have been even admitted in view of the provisions of Sections 65 and 65B of the Evidence Act. The learned counsel further submitted that Ext. A2 is only an unauthenticated copy and its author has not been examined and hence no reliance can be placed on the same. The counsel also submitted that even if it is admitted that Ext. A2 is an email message sent by Smt. Usha Pillai, the aunt of the respondent, then also, the respondent cannot be held liable for its contents inasmuch as nowhere is it stated in Ext. A2 that the information about the illicit affair of the appellant was furnished by the respondent. We are unable to agree with the learned counsel for the respondent. 15. The technicalities of the Evidence Act cannot be imported to a proceedings before the Family Court because Section 14 of the Family Courts Act authorizes a Family Court to receive as evidence any report, statement, document, information or matter that may, in its opinion assist it to deal effectually with a dispute irrespective of whether it is relevant or admissible under the Indian Evidence Act, 1972. It is discernible from Section 14 that the technicalities of Indian Evidence Act regarding the admissibility or relevancy of evidence are not strictly applicable to the proceedings under the Family Court and in the matrimonial dispute before the Family Court, a discretion has been given to the court to rely on the documents produced if the court is satisfied that it is required to assist the court to effectively deal with the dispute. 16. Now, we will come to the contents of Ext. A2. Ext. A2 mail was sent by the aunt of the respondent Smt. Usha Pillai to the appellant on 04/03/2012. In fact, it was in response to a mail sent by the appellant to her on 29/01/2012. The said mail also forms part of Ext. A2. A reading of the mail dated 29/01/2012 would show that the appellant informed about her strained relationship with the respondent to Smt.Usha Pillai and sought her version in the matter. A reading of the mail dated 04/03/2012 which runs into two pages would show that Smt.Usha Pillai and her husband Sri.Hari knew about the marital problems between the appellant and the respondent and they had intervened in it. It is specifically stated in the mail that Smt.Usha Pillai had spoken to the respondent about the marital problems between him and the appellant and she heard what the respondent has to say in the matter. It is also further stated in the said mail that the respondent had knowledge about the boy friend of the appellant even before the marriage. There is a specific aspersion in Ext. A2 that the appellant was caught hold of by police along with a boy friend and both of them were taken to police station. It is further stated in Ext. A2 that the respondent had told Smt. Usha Pillai and her husband that the appellant was trying to get the baby’s surgery done without his consent. Smt. Usha Pillai has even doubted the paternity of the child. The respondent was cross- examined in length as to the contents of Ext. A2. He deposed that he came to know of Ext. A2 and its contents including the allegation regarding unchastity when he received the notice in the original petition. Still, he did not ask about it to Smt.Usha Pillai. At the same time, he stated that he enquired about Ext. A2 with his uncle, the husband of Smt. Usha Pillai, who admitted that Smt. Usha Pillai had sent Ext. A2 to the appellant. He also stated that he picked up quarrel with his uncle on that count. That apart, in the original petition for custody filed by the respondent before the court below, he has stated that the appellant had an affair with another person. All these circumstances indicate that it was the respondent who told Smt. Usha Pillai that the appellant was caught hold of by the police along with a boy friend and both of them were taken to the police station. Fore all theses reasons, we are of the view that the contents in Ext. A2 can safely be relied upon. 17. PW2, the mother of PW1, has also given evidence that the respondent used to pick up quarrel with the appellant alleging that she was having extra-marital relationship with another person. She deposed that the respondent has spread the said allegation among his relatives. Even though PW2 has been cross- examined in length, nothing tangible has been brought out to discredit her testimony. We also find no reason to disbelieve the evidence tendered by PW1 that the allegation of unchastity was spread by the respondent among the co-workers of her father. Admittedly, father of the appellant and the respondent were working in the same company in the Sultanate of Oman. The respondent has miserably failed to substantiate the imputation made by him that the appellant has relationship with another person and she is an unchaste woman. Levelling disgusting accusation of unchastity and attributing aspersions of perfidiousness to the wife would undoubtedly amount to worst form of mental cruelty. No wife can tolerate such accusation. On going through the relevant portions of imputations in Ext. A2, we find that they are of such quality, magnitude and consequence as to cause reasonable apprehension in the mind of the appellant that it is not safe for her to continue the marital tie. Inasmuch as the mental cruelty on this ground has been established, it is immaterial whether the allegation of physical assault on 1/3/2012 has been substantiated or not in order to grant a decree for dissolution of marriage on the ground of cruelty. 18. On an overall appreciation of the pleadings and evidence, we find that the appellant has made out a case for granting a decree for dissolution of marriage on the ground of cruelty u/s 13(1)(ib) of the Hindu Marriage Act, 1955. The court below went wrong in dismissing the original petition for dissolution of marriage. The impugned judgment, thus, rejecting the prayer for dissolution of marriage on the ground of cruelty is liable to be set aside. We do so. In the result, the appeal is allowed. The impugned judgment is set aside. OP No.758/2014 on the file of Family Court, Mavelikkara is allowed. The marriage between the appellant and the respondent solemnized on 28/6/2009 stands dissolved. No order as to costs.
The Kerala High Court decided on Monday that making untrue accusations and attacking the character of a spouse counts as "mental cruelty" in a marriage. This decision was made when they approved an appeal in a marriage case. Two judges, Justice A. Muhamed Mustaqu and Justice Kauser Edappagath, said the following: "The husband (respondent) could not prove his claim that his wife (appellant) was having an affair and was not faithful. Making such terrible accusations that a wife is unfaithful and dishonest is clearly a very bad kind of mental cruelty." The wife, Sabitha Unnikrishnan, took her case to the High Court. She was appealing a decision by the Mavelikkara Family Court. That court had rejected her request for a divorce, saying she hadn't shown enough proof of cruelty from her husband. Both the husband and wife worked in Oman. The wife said that while they lived together, her husband falsely accused her of being unfaithful. He spread these rumors to his family and at his workplace, which was also where her father worked. Later, the wife received an email from her husband's aunt in the U.S. The email claimed the wife had been unfaithful. It said she was caught by the police with her boyfriend and taken to the police station with him. The wife stated that these false claims from her husband about her being unfaithful damaged her reputation, even among her co-workers. Because of this, she argued she couldn't be expected to live with him anymore. She also said her husband often argued with her, doubting her faithfulness. The appeal also mentioned that the husband physically attacked his wife in March 2012. After that incident, they stopped living together. The wife's lawyer, Adv. Nagaraj Narayanan, argued that the spoken and written evidence clearly showed the husband had been both mentally and physically cruel to his wife. But the husband's lawyer, Adv. Jacob P. Alex, denied these claims. He said his client was still willing to live with his wife and fulfill his duties as a husband. Because of this, the husband asked the court to reject the divorce request. Also, the husband argued that the email was just an unverified copy, and the person who wrote it hadn't been questioned in court. So, he said the email shouldn't be used as proof. Even if the court accepted that his aunt sent the email, the husband claimed he wasn't responsible for what it said. He argued the email didn't state that *he* was the one who told his aunt about his wife's supposed unfaithfulness. The two judges looked at the arguments from both lawyers. They noted that the strict rules of the Evidence Act don't always apply in Family Court cases. Section 14 of the Family Courts Act allows a Family Court to use any document if the court believes it will help them resolve the case properly. The Court also pointed out that the situation suggested the husband was the one who told his aunt about his wife being caught with her boyfriend by the police. Because of this, the Court decided that the email's content could be trusted. The husband also couldn't provide any solid evidence to prove his wife's statements were false. The judges then spoke about the claim of cruelty made by the wife, saying: "Cruelty in a marriage means actions related to a couple's duties to each other. It is understood that physical violence isn't always needed for cruelty to exist; cruelty can be mental or physical. Mental cruelty happens when one spouse feels upset because of the other's actions. This can be figured out by looking at all the facts and situations together." The Court weighed the likelihood of what happened in this case. They found that the wife's main claim of mental cruelty from her husband was his false accusation that she was unfaithful. Therefore, the Court decided that the husband's accusations were serious enough to make the wife reasonably fear that it was not safe for her to stay married. The judges gave the wife a divorce based on cruelty, according to Section 13(1)(ib) of the Hindu Marriage Act. This decision came after carefully reviewing all the statements and evidence. The wife's appeal was approved, and the earlier court decision was overturned.
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1. These two sets of appeals are being disposed of by this common judgment. 2. In the first set of appeals, six appeals1 emanate from common judgment and order dated 14.08.2019 passed by the High Court of 1 arising out of SLP (C) No. 27881 of 2019; SLP (C) Nos.27907­27916 of 2019; SLP (C) No. 27987 of 2019; SLP (C) No. 2942 of 2020; SLP (C) No. 5902 of 2020; and SLP (C) No …………. of 2021 @ Diary No(s). 6803 of 2020; Judicature for Rajasthan at Jodhpur and two other appeals 2 against the judgment and order dated 11.02.2020 of the Jaipur Bench of the same High Court, which followed the earlier decision of the Jodhpur seat referred to above. In these matters, the appellants (Management(s) of private unaided schools in the State of Rajasthan) had assailed the validity of the Rajasthan Schools (Regulation of Fee) Act, 20163, in particular Sections 3, 4, 6 to 11, 15 and 16 and the Rules framed thereunder titled Rajasthan Schools (Regulation of Fee) Rules, 2017 4, in particular Rules 3, 4, 6 to 8 and 11 thereof being ultra vires the Constitution and abridge the fundamental right guaranteed under Article 19(1)(g) of the Constitution of India. 3. In the second set of appeals, four appeals5, also filed by the Management(s) of private unaided schools in the State of Rajasthan, emanate from the common judgment and order dated 18.12.2020 of the same High Court. In these appeals, the challenge is to the orders passed by the State Authorities on 09.04.2020, 07.07.2020 2 arising out of SLP (C) Nos. 5470 and 5589 of 2020 3 for short, “the Act of 2016” 4 for short, “the Rules of 2017” 5 arising out of SLP (C) No …………. of 2021 @ Diary No(s). 44 of 2021; SLP (C) No. 431 of 2021; SLP (C) Nos. 577­579 of 2021; and SLP (C) No. 2494 of 2021 and 28.10.2020 regarding deferment of collection of school fees including reduction of fees limited to 70 per cent of tuition fees by schools affiliated with the Central Board of Secondary Education and 60 per cent from the schools affiliated with Rajasthan Board of Secondary Education, in view of reduction of syllabus by the respective­Boards due to aftermath of pandemic (lockdown) from 4. The issues involved in all these appeals concern around 36,000 private unaided schools including 220 minority private unaided schools in the State of Rajasthan governed by the provisions of the Act of 2016 referred to above. Accordingly, all these appeals were clubbed and heard analogously. However, as aforesaid, two broad issues would arise for our consideration. 5. Reverting to the first set of appeals, the challenge is to the provisions of the Act of 2016 and Rules of 2017 being violative of rights guaranteed under Article 19(1)(g) of the Constitution to carry on occupation of imparting education which includes autonomy to determine the school fees by the Managements of private unaided schools. It is urged that any restriction imposed in that regard would be arbitrary and unreasonable. Further, the impugned provisions inevitably limit the autonomy of the school Management of private unaided schools to the level of merely proposing the school fees to the School Level Fee Committee 6, in which the Management has only one representative as against eight others i.e., five parents, three teachers and one principal. This imbalance in the constitution of the SLFC negates the effective control of the Management in the affairs of the school and in particular the autonomy to determine its own school fees. Notably, five parents, who are appointed as members of the SLFC are chosen by draw of lots from amongst the willing parents of the wards pursuing education in the schools concerned and could include even the wards who are availing free education under the Right of Children to Free and Compulsory Education Act, 20097. In fact, the latter have no stakes in the matter of determination of school fees. As the willing parents are selected by lottery system, in the process even the person who has no modicum of knowledge of development of a 6 for short, “the SLFC” 7 for short, “the RTE Act” school, management of finances and dynamics of quality education, would become part of the process of determination of school fees. The members of the SLFC would inevitably have conflicting interest. They would be interested in ensuring that minimum school fee is finalised. The nominated teachers may constantly seek favour of the Management by exploiting their position as member of the SLFC. In the process, an environment of constant difference of opinion would prevail between the school Management on one side and the parents of the wards and teachers, who would form part of the SLFC. Pertinently, the provisions of the impugned Act of 2016 give authority to the SLFC to override the proposal of the school Management in the matter of school fees to be collected from the wards during the relevant period. Effectively, the parents who are members of the SLFC, would control the decision­making process impacting the autonomy of the school Management in regard to determination of school fees, guaranteed under Article 19(1)(g) of the Constitution. The parents­teachers duo who are part of the SLFC would have no intention or motivation to create new facilities or commitment to develop the school towards excellence. Moreover, they would not be accountable for anything that finally impacts the quality of education in the school concerned. It is only the school Management who would be held accountable in that regard, whilst school Management is denuded of its autonomy to determine school fees. The school fees so determined by the SLFC as per the provisions of the impugned Act of 2016, would remain unchanged and binding for next three years with no provision for increase in case of contingency of funds needed for new development or general inflation or hike in salary and wages of staff or any other legitimate purpose. 6. The impugned Act of 2016 also gives wide powers to the Divisional Fee Regulatory Committee8 and Revision Committee including power to issue summons, search, seizure and penalties as if the occupation of imparting education is akin to res extra commercium. The school Management­appellants apprehend that dispute with regard to determination of school fees would be endless and get embroiled in the process of appeal, revision and judicial proceedings. Resultantly, schools would suffer uncertainty in financial matters. Furthermore, there is no mechanism provided to guarantee the recovery of school fees after it is finally determined 8 for short, “the DFRC” under the Act of 2016. The working of the impugned Act of 2016 would eventually stifle the growth and development of the private unaided schools and that all schools — small and big, would be treated equally with same measure, which would be arbitrary and discriminatory and against the principle expounded by this Court that the school fees of private unaided schools should be school­ based and not a rigid or uniform arrangement. According to the appellants, the factors enumerated for determination of school fees are vague, subjective and irrelevant. The crucial factors such as for making a good school are not even adverted to in Section 8 of the impugned Act of 2016. The process of determination of school fees is a dynamic exercise and could be effectively done by the school Management on its own while keeping in mind that establishing a school is essentially a charity. According to the appellants, the provisions of the impugned Act of 2016 are unworkable and violate the fundamental right guaranteed under Article 19(1)(g) of the Constitution. The State can only regulate the fees determined by the private unaided schools only if it shows that the same entails in profiteering or capitation, which is prohibited by law. 7. It is urged that by now it is well­established that the private unaided schools ought to have maximum autonomy with regard to administration including the right of appointment, disciplinary powers, admission of students and the “fees to be charged” as expounded by this Court in T.M.A. Pai Foundation & Ors. vs. State of Karnataka & Ors.9. The Court noted that it is in the interests of the general public that more good quality schools are established. Autonomy and non­regulation of the school administration in matters referred to above will ensure that more such institutions are established. This view has been restated in Society for Unaided Private Schools of Rajasthan vs. Union of 8. According to the appellants, the activities of school level education are qualitatively different from that of professional level education. The determination of school fees, therefore, stands on a totally different footing than determination of fees for professional colleges for medicine etc. The impugned Act of 2016 falls foul of doctrine of proportionality — as restrictions imposed on the school Management in respect of determination of school fees have no cogent nexus/object sought to be achieved. 9. It is lastly urged that the legislative field regarding regulation of school fees is already occupied by the law made by the Parliament being the RTE Act 11 and the Rules12 framed thereunder. Hence, it was not open to the State legislature to enact a law on the same subject. 10. These points were urged even before the High Court at the instance of the appellants. The respondent­State countered the same on the argument that the impugned Act of 2016 was in the nature of a regulatory law, with complete autonomy to the school Management to decide about its fee structure which, however, could be given effect to upon approval given by the SLFC. The SLFC consists of not only parents of wards, but also the school Management and their representatives in the form of teachers. It ensures participation of all the stakeholders and democratisation of the decision­making process. The proposal of the school Management, if found to be in order, is generally approved and it is 12 The Right of Children to Free and Compulsory Education Rules, 2010 (Rules 12, 15 open to the SLFC to give counter suggestion which if acceptable to the school Management can be acted upon by it. In case there is a difference of opinion, only then the matter goes for adjudication of the rival claims before the DFRC and the decision of that Authority becomes binding on the parties. Further, the school Management, the SLFC as well as the Adjudicatory­cum­Regulatory Authority, each one of them is guided by the principles and factors delineated in Section 8 of the Act of 2016 and Rule 10 of the Rules of 2017 in the matter of determination of school fees. Such external regulation for fee fixation has been recognised and approved by this Court in successive decisions viz., Islamic Academy of Education & Anr. vs. State of Karnataka & Ors.13, P.A. Inamdar & Ors. vs. State of Maharashtra & Ors.14, Modern School vs. Union of India & Ors.15, Action Committee, Unaided Private Schools & Ors. vs. Director of Education, Delhi & Ors. 16 and Modern Dental College and Research Centre & Ors. vs. State of Madhya Pradesh & Ors.17. According to the respondent­State, the setting up of External Fee Regulatory Authority is consistent with the jurisprudential exposition of this Court and held not to be violative of Article 19(1)(g) or Article 30 of the Constitution of India. According to the State, there is no ambiguity in the provisions of the Act of 2016. In that, the principles enunciated in the statutory provisions under consideration are not irrelevant or irrational as suggested by the appellants. 11. The respondent­State has also refuted the challenge to the impugned Act of 2016 merely on the basis of its nomenclature. According to the State, non­mentioning of the words prevention of profiteering and charging of capitation fee in the impugned Act of 2016, does not ipso facto make the same constitutionally suspect. It is urged that a Constitution Bench of this Court in Modern Dental College and Research Centre (supra) has upheld the validity of identical provisions enacted by the State of Madhya Pradesh in relation to fixation of fee by external committees and, therefore, the challenge set up by the appellants cannot be countenanced. 12. The respondent­State would urge that the High Court in the impugned judgment after adverting to the exposition of different Constitution Benches of this Court, justly concluded that the impugned Act of 2016 did not violate Article 19(1)(g) of the Constitution as the right flowing therefrom was not an absolute fundamental right. Further, there is no substance in the grounds set forth to assail the validity of the impugned Act of 2016. 13. The High Court did advert to these arguments canvassed by both sides and eventually dismissed the challenge to the validity of the impugned Act of 2016 vide common judgment and order dated 14.08.2019. The High Court after adverting to the exposition in T.M.A. Pai Foundation (supra), Islamic Academy of Education (supra), Modern School (supra) and Modern Dental College and Research Centre (supra), proceeded to dismiss the writ petitions by “19. Therefore, in the backdrop of law laid down by Constitution Bench in Modern Dental College & Research Centre (supra), if the impugned Act and the provisions sought to be assailed by the petitioners and the regulatory measures provided under the Rules are examined objectively with pragmatic approach, then, it would ipso facto reveal that State has not made any endeavour to trench into autonomy of petitioner­institutions. The provisions are regulatory in nature with the solemn object of preventing profiteering and commercialization in school education. The constitution of the Committee for regulating fee structure, by no stretch of imagination be construed as an attempt to completely bye­pass the school management. The Committee as such is chaired by representative of the management besides principal as a Secretary with three teachers nominated by the management and five parents nominated from parent teachers association. Thus, the contention of the petitioners that State has completely chipped the wings of management or invaded their autonomy is an euphonious plea bereft of any merit. The criteria for determining fee are also based on legitimate considerations provided under Section 8 of the Act. Thus, even while considering fee structure of the school, the Committee cannot be allowed to act at its whims and fancy but for adhering to the criteria laid down under Section 8 of the Act. That apart, the remedy against the fee determined by the Committee is also provided in the Statute by way of appeal/reference and second appeal, which sufficiently repudiate the contention of the petitioners about unreasonable restrictions on their autonomy within the mischief of unacceptable constraints envisaged under clause (6) of Article 19 of the Constitution. 20. Switching on to the coercive measures and penal provisions provided under the Statute and enforcement methodology prescribed under the Rules, it would be just and appropriate to observe that all these provisions are essential and necessary concomitant of regulatory mechanism for achieving desired objectives, and therefore cannot be categorized as unreasonable restrictions. In the overall scenario, we are also convinced that Sections 13 to 18 of the impugned Act and Rule 11 of the Rules are not intended to be invoked on sundry occasions for interfering with day to day functioning of the unaided recognized schools. Thus, complaint of the petitioners about fanciful and capricious supplication of these provisions per se appears to be a far cry without any substance. Indisputably, the Rules are in the nature of subordinate legislation and framed by the Government in exercise of power under Section 19 of the Act for carrying out all or any of the purposes of the Act. Thus, the Rules as such are neither assailable on the ground of lack of legislative competence, nor for failure to conform to the parent statute under which Rules are made. Moreover, these rules are also not offending any right conferred on the petitioners under Part III of the Constitution or in violation of any provision of the Constitution, therefore, challenge to the Rules is wholly unsustainable. 21. The argument of the learned counsel for the petitioners, that the impugned Act is unconstitutional as being in derogation to Article 13(2) of the Constitution, appears to be quite alluring but of no substance. Analyzing this argument meticulously in the backdrop of lis involved in these matters, we have already repudiated the same. At the cost of repetition, we may reiterate here that the impugned Act and its other provisions are not taking away or abridges rights of the petitioners conferred by Part III of the Constitution. We may hasten to add that entire edifice of challenge in these petitions is alleged infraction of Article 19(1)(g) of the Constitution, which indisputably is not an absolute fundamental right. As observed hereinabove, the said fundamental right is subject to reasonable restrictions and such restrictions are permissible as they are aimed at seeking laudable objectives in the larger public interest. Therefore, viewed from any angle, the impugned provisions of the Act as well as Rules are intra­vires of the Constitution not being in violation of Article 13(2) and 19(1)(g) of the The upshot of above discussion is that all these petitions fail and are hereby dismissed. The stay petitions are also dismissed and interim order passed on 9th of April, 2018 is vacated.” 14. We have heard Mr. Pallav Shishodia, learned senior counsel for the appellants, Dr. Manish Singhvi and Mr. Devadatt Kamat, learned senior counsel for the State of Rajasthan. 15. After cogitating over the rival arguments and considering the impugned judgment, we have no hesitation in observing that although the High Court was right in its conclusion, it has disposed of the challenge to the validity of different provisions of the impugned Act of 2016 and the Rules framed thereunder in a summary manner. We agree that merely adverting to the decisions of this Court was not enough. The High Court should have then analysed the challenge to the respective provisions and also the overall scheme of the Act of 2016. Ordinarily, we would have relegated the parties before the High Court for reconsideration of the entire matter afresh. However, considering the nature of issues raised and the concerns expressed by the parties, we proceed to address the challenge to the relevant provisions of the Act of 2016 in this judgment itself. 16. Indeed, a Constitution Bench of this Court in T.M.A. Pai Foundation (supra) has expounded that the private unaided school management must have absolute autonomy to determine the school fees. But at the same time the consistent view of this Court has been restated and enunciated by the Constitution Bench in Modern Dental College and Research Centre (supra) in paragraph 75 of the reported decision. In that, though the fee can be fixed by the educational institutions and it may vary from institution to institution depending upon the quality of education provided by each of such institutions, commercialisation is not permissible; and in order to ensure that the educational institutions are not indulging in commercialisation and exploitation, the Government is equipped with necessary powers to take regulatory measures and to ensure that the private unaided schools keep playing vital and pivotal role to spread education and not to make money. The Court further noted that when it comes to the notice of the Government that the institution was charging fee or other charges which are excessive, it has complete authority coupled with its duty to issue directions to such an institution to reduce the same so as to avoid profiteering and commercialisation. 17. In paragraph 76 of the same decision, the Court then proceeded to consider the next question as to how a regulatory framework for ensuring that no excessive fee is charged by the educational institutions, can be put in place. For that, the Court adverted to the decision in T.M.A. Pai Foundation (supra), Islamic Academy of Education (supra), Modern School (supra) and P.A. Inamdar (supra) and noted that primary education is a fundamental right, but it was not an absolute right as private schools cannot be allowed to receive capitation fee or indulge in profiteering in the guise of autonomy to determine the school fees itself. The Court plainly noted that every school management of private unaided school is free to devise its own fee structure, but the same can be regulated by the Government in the interests of general public for preventing profiteering and/or charging of capitation fee. Further, fixation of fees needs to be regulated and controlled at the initial stage itself. The Constitution Bench noted with approval the exposition in Association of Private Dental and Medical Colleges vs. State of M.P.18, which reads thus: “42. We are of the view that Sections 4(1) and 4(8) of the 2007 Act have to be read with Section 9(1) of the 2007 Act, which deals with factors which have to be taken into consideration by the Committee while determining the fee to be charged by a private unaided professional educational institution. A reading of sub­section (1) of Section 9 of the 2007 Act would show that the location of private unaided professional educational institution, the nature of the professional course, the cost of land and building, the available infrastructure, teaching, non­teaching staff and equipment, the expenditure on administration and maintenance, a reasonable surplus required for growth and development of the professional institution and any other relevant factor, have to be taken into consideration by the Committee while determining the fees to be charged by a private unaided professional educational institution. Thus, all the cost components of the particular private unaided professional educational institution as well as the reasonable surplus required for growth and development of the institution and all other factors relevant for imparting professional education have to be considered by the Committee while determining the fee. Section 4(8) of the 2007 Act further provides that the Committee may require a private aided or unaided professional educational institution to furnish information that may be necessary for enabling the Committee to determine the fees that may be charged by the institution in respect of each professional course. Each professional educational institution, therefore, can furnish information with regard to the fees that it proposes to charge from the candidates seeking admission taking into account all the cost components, the reasonable surplus required for growth and development and other factors relevant to impart professional education as mentioned in Section 9(1) of the 2007 Act and the function of the Committee is only to find out, after giving due opportunity of being heard to the institution as provided in Section 9(2) of the 2007 Act whether the fees proposed by the institution to be charged to the student are based on the factors mentioned in Section 9(1) of the 2007 Act and did not amount to profiteering and commercialisation of the education. The word “determination” has been defined in Black's Law Dictionary, Eighth Edn., to mean a final decision by the Court or an administrative agency. The Committee, therefore, while determining the fee only gives the final approval to the proposed fee to be charged after being satisfied that it was based on the factors mentioned in Section 9(1) of the 2007 Act and there was no profiteering or commercialisation of education. The expression “fixation of fees” in Section 4(1) of the 2007 Act means that the fee to be charged from candidates seeking admission in the private professional educational institution did not vary from student to student and also remained fixed for a certain period as mentioned in Section 4(8) of the 2007 Act. As has been held by the Supreme Court in Peerless General Finance and Investment Co. Ltd. v. RBI19, the Court has to examine the substance of the provisions of the law to find out whether provisions of the law impose reasonable restrictions in the interest of the general public. The provisions in Sections 4(1), 4(8) and 9 of the 2007 Act in substance empower the Committee to be only satisfied that the fee proposed by a private professional educational institution did not amount to profiteering or commercialisation of education and was based on the factors mentioned in Section 9(1) of the 2007 Act. The provisions of the 2007 Act do not therefore, violate the right of private professional educational institution to charge its own fee.” 18. After having quoted the above exposition with approval in paragraph 81, the Court then proceeded to examine the need for a regulatory mechanism. It noted that the regulatory measures are felt necessary to promote basic well­being for individuals in need. In paragraphs 90 to 92 in Modern Dental College and Research Centre (supra), this Court noted as follows: “90. Thus, it is felt that in any welfare economy, even for private industries, there is a need for regulatory body and such a regulatory framework for education sector becomes all the more necessary. It would be more so when, unlike other industries, commercialisation of education is not permitted as mandated by the Constitution of India, backed by various judgments of this Court to the effect that profiteering in the education is to be avoided. 91. Thus, when there can be regulators which can fix the charges for telecom companies in respect of various services that such companies provide to the consumers; when regulators can fix the premium and other charges which the insurance companies are supposed to receive from the persons who are insured; when regulators can fix the rates at which the producer of electricity is to supply the electricity to the distributors; we fail to understand as to why there cannot be a regulatory mechanism when it comes to education which is not treated as purely economic activity but welfare activity aimed at achieving more egalitarian and prosperous society by empowering the people of this country by educating them. In the field of education, therefore, this constitutional goal remains pivotal which makes it distinct and special in contradistinction with other economic activities as the purpose of education is to bring about social transformation and thereby a better society as it aims at creating better human resource which would contribute to the socio­economic and political upliftment of the nation. The concept of welfare of the society would apply more vigorously in the field of education. Even otherwise, for economist, education as an economic activity, favourably compared to those of other economic concerns like agriculture and industry, has its own inputs and outputs; and is thus analysed in terms of the basic economic tools like the laws of return, principle of equimarginal utility and the public finance. Guided by these principles, the State is supposed to invest in education up to a point where the socio­economic returns to education equal to those from other State expenditures, whereas the individual is guided in his decision to pay for a type of education by the possibility of returns accruable to him. All these considerations make out a case for setting up of a stable regulatory mechanism. 92. In this sense, when imparting of quality education to cross­section of the society, particularly, the weaker section and when such private educational institutions are to rub shoulders with the State managed educational institution to meet the challenge of the implementing ambitious constitutional promises, the matter is to be examined in a different hue. It is this spirit which we have kept in mind while balancing the right of these educational institutions given to them under Article 19(1)(g) on the one hand and reasonableness of the restrictions which have been imposed by the impugned legislation. The right to admission or right to fix the fee guaranteed to these appellants is not taken away completely, as feared. T.M.A. Pai Foundation20 gives autonomy to such institutions which remains intact. Holding of CET under the control of the State does not impinge on this autonomy. Admission is still in the hands of these institutions. Once it is even conceded by the appellants that in admission of students “triple test” is to be met, the impugned legislation aims at that. After all, the sole purpose of holding CET is to adjudge merit and to ensure that admissions which are done by the educational institutions, are strictly on merit. This is again to ensure larger public interest. It is beyond comprehension that merely by assuming the power to hold CET, fundamental right of the appellants to admit the students is taken away. Likewise, when it comes to fixation of fee, as already dealt with in detail, the main purpose is that the State acts as a regulator and satisfies itself that the fee which is proposed by the educational institution does not have the element of profiteering and also that no capitation fee, etc. is charged. In fact, this dual function of regulatory nature is going to advance the public interest inasmuch as those students who are otherwise meritorious but are not in a position to meet unreasonable demands of capitation fee, etc. are not deprived of getting admissions. The impugned provisions, therefore, are aimed at seeking laudable objectives in larger public interest. Law is not static, it has to change with changing times and changing social/societal conditions.” 19. After this jurisprudential exposition, it is not open to argue that the Government cannot provide for external regulatory mechanism for determination of school fees or so to say fixation of “just” and “permissible” school fees at the initial stage itself. 20. The question is: whether the impugned enactment stands the test of reasonableness and rationality and balances the right of the educational institutions (private unaided schools) guaranteed to them under Article 19(1)(g) of the Constitution in the matter of determination of school fees? The Act of 2016 has been enacted by the State legislature. It was enacted as it was noticed that the earlier enactment on the self­same subject did not include provision of appeal against the orders of fee determination by the Fee Determination Committee. It was also noticed that there are large number of private schools (approximately 34,000) and a single fee determination committee cannot determine the fee of such schools in a proper manner in time. For that reason, the Act of 2016 came into being to provide for regulation of collection of fees by schools in the State of Rajasthan and matters connected therewith and incidental thereto. It extends to the whole of the State of Rajasthan and applies to both aided and unaided schools. The Act provides for a regulatory mechanism. The expression “aided school” is defined in Section 2(b) to mean a school receiving any sum of money as aid from the State Government. The expression “unaided school” has not been defined. It must, however, follow that all other private schools, other than aided schools would qualify that category (i.e., unaided private schools). The expression “school” has been defined in Section 2(t), which reads thus: “2. Definitions.­ In this Act, unless the context otherwise (t) “school” means the school imparting elementary, secondary and senior secondary education recognized by the Government and managed by any management and affiliated to any Indian or foreign course or Board, whether aided, partially aided, un­aided including the school run by the minority educational institution but does not include a school imparting religious instructions only;” 21. The expression “private school” has been defined in Section “2. Definitions.­ In this Act, unless the context otherwise (p) “private school” means a school established and administered or maintained by any person or body of persons and which is a recognized institution within the meaning of clause (q) of Section 2 of the Rajasthan Non­ (ii) a school established and administered or maintained by the Central Government or the State Government or any local authority;” It is, thus, clear that the Act of 2016 applies to all the schools within the State of Rajasthan referred to in Section 2(t) including private schools as defined in Section 2(p). 22. Section 3 of the Act of 2016 predicates that no school itself or on its behalf shall collect any fee in excess of the fee fixed or approved under the Act of 2016. The expression “fee” has been defined in Section 2(h), which reads thus: “2. Definitions.­ In this Act, unless the context otherwise (h) “fee” means any amount, by whatever name called, collected, directly or indirectly, by a school for admission of a pupil to any Standard or course of study;” 23. Besides the definition of expression “fee”, it would be apposite to advert to the factors for determination of fee under the Act of 2016 as delineated in Section 8 of the Act of 2016. The same reads “8. Factors for determination of fee. ­ The following factors shall be considered while deciding the fee leviable by a (b) the infrastructure made available to the students for the qualitative education, the facilities provided and as mentioned in the prospectus or web­site of the school; (c) the education standard of the school as the State (d) the expenditure on administration and maintenance; (e) the excess fund generated from non­resident Indians, as a part of charity by the management and contribution by the Government for providing free­ship in fee or for other items under various Government schemes given to the school for the Scheduled Castes, the Scheduled Tribes, Other Backward Class and (f) qualified teaching and non­teaching staff as per the (g) reasonable amount for yearly salary increments; (h) expenditure incurred on the students over total (i) reasonable revenue surplus for the purpose of development of education and expansion of the school; (j) any other factor as may be prescribed.” 24. In addition to Section 8, it is essential to take note of Rule 10 of the Rules of 2017 which provides for additional factors to be reckoned for determination of school fees. Rule 10 reads thus: “10. Additional factors for determination of fee. ­ The following factors shall be considered while deciding the fee in addition to the factors specified in section 8 of the Act, (i) facilities made available by the school under e­governance i.e. hardware and software facilities; (iii) other facilities made available to students such as swimming pool, horse riding, shooting, archery and (iv) supply of books, notebooks, etc. and other educational material provided to students; (vi) any other factor submitted by the Management before the School Level Fee Committee.” 25. After adverting to Section 8 and Rule 10, it is amply clear that the relevant factors for determination of reasonable school fees under the Act of 2016 and Rules framed thereunder have been duly articulated and are based on objective parameters. It was urged that clause (a) of Section 8 is vague. We find force in the argument of the respondent­State that the factors referred to in Section 8 and Rule 10 for determination of fee are founded on the dictum of this Court in successive reported precedents, as relevant factors. The factor of location of the school is certainly relevant for determination of fee as are the other factors referred to in Section 8 and Rule 10. The totality of the effect of all the specified factors is to be reckoned for determining the school fees of the concerned school for the relevant period. The location of the school is not the only factor that is to be taken into account. 26. At the end, what is relevant is that the institution is entitled to fix its own fee structure, which may include reasonable revenue surplus for the purpose of development of education and expansion of the institution, as long as it does not entail in profiteering and commercialisation. Whether fee structure evolved by the concerned school results in profiteering or otherwise is a matter which eventually would become final with the determination/adjudication by the Statutory Regulatory Committees constituted under Sections 7 and 10 of the Act of 2016, namely, Divisional Fee Regulatory Committee (DFRC) and Revision Committee respectively, as the case may be. That adjudication, however, becomes necessary only if the SLFC were to disapprove the proposal of the school Management regarding fee structure determined by the school. Whereas, if the SLFC were to accept the proposal of the school Management regarding fee structure as it is, that would be the fees under the Act of 2016 for the relevant period and then there would be no need for the DFRC to adjudicate upon the fixation of fee in the concerned school. 27. The SLFC is constituted institution or school wise, whereas the DFRC is an independent statutory regulatory authority empowered to enquire into the factum of whether fee structure of the given school determined by its Management entails in profiteering. In the event, the SLFC disapproves the proposal of the school Management, the dispensation provided for adjudication of the contentious position between the stakeholders in no manner violate the fundamental right of establishment of educational institution guaranteed under Article 19(1)(g) of the Constitution. 28. Section 4 of the Act of 2016 provides for Parent­Teachers “4. Parent­Teachers Association. ­ (1)(a) Every private school shall constitute the Parent­Teachers Association. (b) The Parent­Teachers Association shall be formed by the head of the school within thirty days from the beginning of each academic year. Every teacher of the school and parent of every student in the school shall be a member of the Parent­Teachers Association and an annual amount of rupees fifty, in case of urban area and rupees twenty, in case of rural area, shall be collected from each member of such association. (c) On formation of the Parent­Teachers Association, a lottery shall be conducted by drawing a lot of the willing parents to constitute the School Level Fee Committee and a notice of one week before such lottery shall be given to the member of the Parent­Teachers Association. (2)(a) The School Level Fee Committee shall consist of, ­ (i) Chairperson ­ representative of management of the (ii) Secretary ­ Principal of the private school; (iii) Member ­ three teachers nominated by the (iv) Member ­ five parents from Parent­Teachers (b) The list of members of the School Level Fee Committee shall be displayed on the notice board within a period of fifteen days from formation of the School Level Fee Committee and copy thereof shall forthwith be forwarded to the District Education Officer concerned. (c) The term of the School Level Fee Committee shall be for one academic year and no parent member shall be eligible for drawing a lot by lottery within the period of next three years since the expiry of his/her last term as the member of the School Level Fee Committee. (d) The School Level Fee Committee shall meet at least once in three months. The procedure to be followed for conducting the meeting of the School Level Fee Committee shall be such as may be prescribed. (e) The Parent­Teachers Association shall have a general meeting at least once before the 15th August of every year. The procedure to be followed for conducting the meeting of the Parent­Teachers Association shall be such as may be prescribed. The Parent­Teachers Association shall discharge such duties and perform such functions as may be assigned to it under this Act and as may be prescribed.” Section 4 predicates that every private school shall constitute the Parent­Teachers Association, which is to be formed by the head of the school within thirty days from the beginning of each academic year. Section 4(1)(b) envisages that every teacher of the school and parent of every student in the school shall be a member of the Parent­Teachers Association. Section 4(1)(c) provides that on formation of the Parent­Teachers Association, a lottery shall be conducted by drawing a lot of the willing parents to constitute the SLFC. In the context of this provision, it was urged that for choosing the willing parent to become member of the SLFC by draw of lots, no eligibility criteria has been prescribed in the Act of 2016 or the Rules of 2017. Besides, willing parent of the ward, who is admitted in the school against the 25 per cent quota of free education under the RTE Act, may also fit into this category even though he would have no stakes in the fee structure proposed by the school Management. The argument seems to be attractive, but for that reason the provision need not be struck down or declared as violative of any constitutional right of management of the school. This provision can be read down to mean that the draw of lots would be in respect of willing parents whose wards have been admitted against the seats other than the seats reserved for free education under the RTE Act. Further, for ensuring that the willing parent must be well­informed and capable of (meaningful) interacting in the discourse on the proposal of fee structure presented by the school Management, he/she must have some minimum educational qualification and also familiar with the development of school, management of finances and dynamics of quality education. The desirability of such eligibility of the willing parent ought to be specified. 29. Absence of such provisions in the Act or Rules, however, can be no basis to suspect the validity of the provision in question. We say so because draw of lots can be one of the ways of identifying the willing parent who could become member of the SLFC. Whether the member should be chosen by election from amongst the willing parents or draw of lots or by nomination including his/her eligibility conditions, is a legislative policy. They may serve the same purpose for constituting the SLFC to give representation to the parents of the wards who are already admitted in the school and are pursuing education thereat. In any case, this argument of the appellants will not take the matter any further much less to declare the relevant provision ultra vires as being violative of fundamental right of the appellants as such. 30. The composition of the SLFC has been specified in Section 4(2) (a) of the Act of 2016. It consists of a Chairperson being representative of management of the private school nominated by such management; Secretary — Principal of the private school (Ex officio); three teachers nominated by the management of private school as to be the members of the SLFC; and five parents from Parent­Teachers Association chosen by a lottery conducted by drawing a lot of willing parents. The SLFC consists of ten members — five are, in a way, representatives or nominees of the Management and five parents from the Parent­Teachers Association. The SLFC so constituted would continue to function for one academic year and the member chosen from Parent­ Teachers Association is not eligible to participate again for a period of three years thereafter from the date of expiry of his/her term as the member of the SLFC. By this process, the parents representing different wards get opportunity to be part of the SLFC. Suffice it to observe that the constitution of the SLFC and for the nature of its function, no fault can be found with Section 4 of the Act of 2016 much less on the ground that it violates the fundamental right to establish an educational institution. 31. Section 5 of the Act of 2016 deals with fixation of fee in “Government schools” and “aided schools”. However, we are not concerned with the said provision in the cases before us. 32. Section 6 deals with regulation of fees in private schools and the procedure to be followed for finalisation of the fee structure. “6. Regulation of fees in private schools. ­ (1) The management of the private schools shall be competent to propose the fee in such schools. (2) On the formation of the School Level Fee Committee, the management shall submit the details of the proposed fee along with the relevant record to the School Level Fee Committee for its approval at least six months before the commencement of the next academic year. While giving the approval, the School Level Fee Committee shall have the authority to decide the amount of fee afresh. (3) After considering all the relevant factors laid down under Section 8, the School Level Fee Committee shall approve the fee within a period of thirty days from the date of receipt of the details of the proposed fee and the record under sub­ section (2) and communicate the details of the fee so approved in writing to the management forthwith. The details of the fee so approved by the School Level Fee committee shall be displayed on the notice board in Hindi, English and in the respective medium of school, and if such school has its own website it shall be displayed on the same and it shall be binding for three academic years. (4) The School Level Fee Committee shall indicate the different heads under which the fee shall be levied. (5) If the School Level Fee Committee fails to decide the fee within the period specified in sub­section (3), the management shall immediately refer the matter to the Divisional Fee Regulatory Committee for its decision under intimation to the School Level Fee Committee in such manner as may be prescribed. During the pendency of the reference, the management shall be at liberty to collect the fee of the previous academic year plus ten percent increase in such fee till the final decision of the Divisional Fee (6) The Divisional Fee Regulatory Committee shall decide the appeal or reference as far as possible within the period of sixty days from the date of its filing after giving the opposite party an opportunity of being heard. (7) The management or the School Level Fee Committee aggrieved by the decision of the Divisional Fee Regulatory Committee in appeal or reference may, within thirty days from the date of such decision, prefer an appeal before the Revision Committee in such manner as may be prescribed.” 33. On bare perusal of this provision, it is noticed that the Management has the prerogative to submit its proposal regarding the fee structure in the given school. That proposal is submitted to the SLFC set up under Section 4 of the Act of 2016. The mechanism provided in Section 6 onwards would primarily apply to private unaided schools. Indeed, the expression “propose” used in Section 6(1) would mean that the proposal of the school Management is its in­principle decision regarding the fee structure for the relevant period. The usage of expression “propose” in no way undermines the autonomy of the school Management, in particular to determine its own fee structure for the relevant period. The consequence of proposal not being accepted by the SLFC is a different issue. Notably, the SLFC’s decision under Section 6(2) is not binding on the school Management. For, it is open to the school Management to then refer the matter for adjudication to the DFRC constituted under Section 7 of the Act of 2016, who in turn is obliged to decide the reference one way or the other. Indeed, that decision would be binding on both — the school Management as well as the parents, unless it is interdicted by the Revision Committee constituted under Section 10 of the Act of 2016 at the instance of the other party. 34. The stipulation such as in Section 6(3) of the Act of 2016 that the decision of fee structure proposed by the school Management, if approved by the SLFC, would be binding for three academic years, had been recognised and approved in Islamic Academy of Education (supra) in paragraphs 7 and 161 and also noted in P.A. 35. To put it differently, the dispensation envisaged under Section 6 of the impugned Act of 2016 is not intended to undermine the autonomy of the school Management in the matter of determination of fee structure itself. What it envisages is that the school Management may determine its own fee structure, but may finalise or give effect to the same after interacting with the SLFC. It is a broad­based committee, consisting of representatives of the school Management as well as five parents from Parent­Teachers Association. This is merely a consultative process and democratisation of the decision­making process by taking all the stakeholders on board. The SLFC does not sit over the proposal submitted by the school Management as a court of appeal, but only reassures itself as to whether the proposed fee structure entails in profiteering by the school on applying the parameters specified in Section 8 and Rule 10. In other words, it is open to the SLFC to take a different view regarding the school fees proposed by the school Management and arrive at a different fee structure. If that counter proposal is acceptable to the school Management, nothing further is required to be done and the decision so taken by the school Management would become binding for three academic years on all concerned. However, in case the school Management disagrees with the recommendations of the SLFC, it is open to both sides, namely, the school Management as well as the parents of wards to take the matter to the DFRC for adjudication on that aspect. 36. While deciding the school fees, the school Management/SLFC including the Statutory Regulatory Authorities, all concerned are guided by the factors delineated in Section 8 of the Act of 2016 and Rule 10 of the Rules of 2017. Suffice it to note that the process envisaged in Section 6 is democratic and consensual resolution of the issue of fee structure for the relevant period between the school Management and the parents’ representative being part of the SLFC. It is not to give final authority to the SLFC to determine the fee structure itself which, as aforesaid, is the prerogative of the school Management as per Section 6(1) of the Act of 2016. In that sense, the autonomy of the school Management to determine the fee structure itself in the first place is untrammelled and not undermined in any way. 37. Section 7 of the Act of 2016 is about the constitution of the “7. Constitution of Divisional Fee Regulatory Committee. ­ (1) The Government shall, by notification in the Official Gazette, constitute a Divisional Fee Regulatory Committee for each Revenue Division, which shall consist of (g) two representatives of ­ Member. (2)(a) The term of office of the representatives of private schools and parents shall be for a period of two years from the date of their nomination and in case of vacancy arising earlier, for any reason, such vacancy shall be filled for the remainder period of the term. (b) The representatives of private schools and parents shall not be eligible for reappointment. (c) The representatives of private schools and parents may resign from the office in writing addressed to the Divisional Commissioner and on such resignation being accepted, his office shall become vacant and may be filled in within a period of three month from the date of occurrence of vacancy. (d) A representative of private schools and parents may be removed, if he does any act which, in the opinion of the Divisional Commissioner, is unbecoming of a member of Provided that no representative of private schools or parents shall be removed from the Divisional Fee Regulation Committee without giving him an opportunity of being heard. (e) The other terms and conditions for the service of the representatives of private schools and parents shall be such as may be prescribed.” From the bare perusal of Section 7(1), it is noticed that first five members are official members. It is a broad­based independent Committee which includes two representatives of private schools in the divisional area “nominated by the Divisional Commissioner” and similarly two representatives of parents “nominated by the Divisional Commissioner”. The representation is given to the concerned stakeholders in the matter of determination of fee structure and in particular in the matter of enquiry into the factum whether fee structure proposed by the concerned school Management entails in profiteering or otherwise. In reference to Section 7(2)(a), we must observe that the term of office of representatives of the private schools and, in particular parents has been earmarked as two years from the date of their nomination. This would mean, necessarily, that the concerned parent would be eligible until his/her ward continues in the school during the tenure and is not a member of the SLFC of any school within the divisional area. Any member not fulfilling this criterion would be deemed to have vacated his office forthwith and, in his place, a new member can be nominated by the competent authority from amongst the parents of the wards pursuing studies in the school in the concerned divisional area. Moreover, while nominating representative of parents, the Divisional Commissioner must keep in mind that the person so nominated must possess basic qualification of accounting, development of a school and dynamics of quality education; and whose ward has not secured admission against 25 per cent quota of free education under the RTE Act. Thus understood, even Section 7 of the Act of 2016 does not violate the fundamental right guaranteed under Article 19(1)(g) of the Constitution in respect of establishment of educational institution. 38. Needless to underscore that the Divisional Commissioner, who is empowered to nominate two representatives of private schools would keep in mind that his/her nominees are from the schools within the divisional area and at least one amongst them should be chosen from a minority school so that representation is given to all stakeholders, including minority and non­minority private unaided schools. At the same time, it must be borne in mind that such a person is already not a member of the SLFC of any school in the divisional area. The dispensation provided in Section 7, is, thus, to create an independent machinery for adjudication of the question as to whether the fee structure proposed/determined by the school Management of the concerned school entails in profiteering, commercialisation or otherwise. 39. As regards challenge to Section 8 of the Act of 2016, the usage of expression “determination”, in our opinion, does not take away the autonomy of the school Management in determining its own fee structure. This provision is only an indicator as to what factors should be reckoned for determination of fee and on that scale the SLFC as well as the Statutory Regulatory Committees will be in a position to analyse the claim of the school Management. This provision, in fact, sets forth objective parameters as to what would be the reasonable fee structure — not resulting in profiteering and commercialisation by the school Management. As aforesaid, this provision will have to be read along with Rule 10 of the Rules of 2017 which provides for additional factors to be borne in mind while examining the question regarding reasonableness of the fee structure proposed by the school Management. 40. Reverting to Section 9, which reads thus: “9. Powers and functions of Divisional Fee Regulatory Committee. ­ (1) The powers and functions of the Divisional Fee Regulatory Committee shall be to adjudicate the dispute between the management and the Parent­Teachers Association regarding fee to be charged by the school management from the students. (2) The Divisional Fee Regulatory Committee may authorize any officer not below the rank of the Head Master of Secondary School to enter any private school or any premises belonging to the management of such school, if the Divisional Fee Regulatory Committee finds so necessary, and search, inspect and seize any records, accounts, registers or other documents belonging to such school or the management in so far as such records, accounts, registers or other documents are necessary and relevant to decide the issues before the said Committee. The provisions of the Code of Criminal Procedure, 1973 (Central Act No. 2 of 1974) relating to searches and seizures shall apply, so far as may be, to searches and seizures under this section. (3) The Divisional Fee Regulatory Committee shall regulate its own procedure, for the discharge of its functions, and shall, for the purpose of making any inquiry under this Act, have all powers of a civil court under the Code of Civil Procedure, 1908 (Central Act No. 5 of 1908) while trying a suit, in respect of the following matters, namely: ­ (i) the summoning and enforcing the attendance of any (ii) the discovery and production of any document; (iii) the reception of evidence on affidavits; (iv) the issue of commission for the examination of the (4) No order shall be passed by the Divisional Fee Regulatory Committee in the absence of the Chairperson. The order of the Divisional Fee Regulatory Committee shall be binding on the parties to the proceedings before it for three academic years. It shall not be called in question in any civil court except by way of an appeal before the Revision Committee constituted under this Act. (5) At the time of resolving the dispute, the Divisional Fee Regulatory Committee shall not grant any interim stay to the fee determined by the management. On decision in appeal or reference, the Divisional Fee Regulatory Committee may pass appropriate orders for refund of the excess fee to the student concerned. In case the management fails to refund the excess fee to such student, the Divisional Fee Regulatory Committee shall proceed to recover such excess fee from the management as an arrear of land revenue and pay the same to such student. (6) The Divisional Fee Regulatory Committee shall, on determining the fee leviable by a private school, communicates its decision to the parties concerned. (7) Every private school preferring an appeal before the Divisional Fee Regulatory Committee shall place the copy of decision in appeal on its notice board, and if such school has (8) The Divisional Fee Regulatory Committee shall indicate the different heads under which the fee shall be levied. (9) The orders passed by the Divisional Fee Regulatory Committee shall be binding on the private school for three academic years. At the end of the said period, the private school shall be at liberty to propose changes in its fee structure by following the procedure as laid down under this Section 9 deals with powers and functions of the DFRC inter alia to adjudicate the dispute between the Management and the Parent­ Teachers Association regarding fee to be charged by the school Management from the students. The DFRC has been empowered to undertake search, inspect and seize any records, accounts, registers or other documents belonging to the concerned school or the management in so far as such records, accounts, registers or other documents are necessary and relevant to decide the issues before the said Committee. It can regulate its own procedure for the discharge of its functions and exercise all powers of a civil court under the Code of Civil Procedure, 1908. 41. Essentially, Section 9 bestows power upon the DFRC to adjudicate the dispute between the school Management and Parent­ Teachers Association regarding difference of opinion in respect of fee structure for the concerned school. What is significant to note is that Section 9(5) makes it amply clear that the DFRC has no power to grant any interim stay to the fee determined by the Management. However, in light of Section 6(5) during the pendency of the appeal or reference before the DFRC, school Management is at liberty to collect fee of the previous academic year plus ten per cent increase in such fee till the final decision of the DFRC, as predicated in Section 6(5) of the Act of 2016. The decision of the DFRC is amenable to appeal before the Revision Committee constituted under Section 10 of the Act of 2016. None of these violate the fundamental right of the school Management guaranteed under Article 19(1)(g) of the Constitution to determine its own fee structure in any manner. 42. Section 10 deals with constitution of Revision Committee. This Committee discharges the function of an appellate authority where the aggrieved party, namely, school Management or the Parent­Teachers Association can assail the decision of the DFRC. This is a final adjudicatory body created under Section 10 consisting of official members including two representatives of private schools nominated by the State Government and two representatives of parents nominated by the State Government. This is again a broad­based independent Committee to consider the revision preferred against the decision of the DFRC, constituted on similar lines. The latter Committee is constituted under Section 7 of the Act of 2016. The observations made in reference to the constitution of the DFRC under Section 7 hitherto would, therefore, apply with full force to this provision as well. 43. The procedure to be followed by the Revision Committee is specified in Section 11 of the Act of 2016, which provision makes it amply clear that the decision of the Revision Committee shall be final and conclusive and shall be binding on the parties for three academic years. Setting up of an independent final adjudicatory authority especially created for considering the question as to whether the fee structure proposed by the school Management results in profiteering or otherwise, it does not impinge upon the fundamental right of the school Management guaranteed under Article 19(1)(g) of the Constitution. 44. Even the challenge to the validity of Sections 15 and 16 of the Act of 2016 is devoid of merit. Section 15 deals with consequences of contravention of the provisions of the Act of 2016 or the Rules made thereunder by an individual. Whereas, Section 16 deals with consequences of violation by a management and persons responsible therefor. It is unfathomable as to how these provisions can have the propensity to violate the fundamental right of the school Management under Article 19(1)(g) of the Constitution especially when violation of the mandate of certain compliances under the Act of 2016 and Rules framed thereunder has been made an offence and persons responsible for committing such violation can be proceeded with on that count. 45. The appellants having failed to substantiate the challenge to the validity of the relevant provisions of the Act of 2016, must also fail with regard to the challenge to Rules 3, 4, 6 to 8 and 11 of the Rules of 2017. 46. Rule 3 provides for a procedure for conducting meeting of Parent­Teachers Association. The school Management can have no grievance regarding the procedure for conducting meeting of Parent­ Teachers Association of the school concerned much less violating its fundamental right guaranteed under Article 19(1)(g) of the Constitution regarding establishment of educational institution and administration thereof, including determination of fee structure on its own. 47. Rule 4 deals with duties and functions of Parent­Teachers “4. Duties and functions of Parent­Teachers Association. ­ The Association shall discharge the following duties and perform the following functions, namely:­ (i) to get information about Tuition fees, Term fees and fees for co­curricular activities as decided by the School (ii) to observe completion of syllabus as per the (iii) to assist school for planning of other co­curricular (iv) to assess the needs of co­curricular activities.” The above Rule enables the Parent­Teachers Association to get information about tuition fees, term fees and fees for co­curricular activities as decided by the SLFC; to also observe completion of syllabus as per the planning; to assist school for planning of other co­curricular activities; and to assess the needs of co­curricular activities. This is an enabling provision bestowing power coupled with duty in the Parent­Teachers Association. This in no way affect the right of the school Management in the matter of determination of school fees by itself. The purpose of above provision is to empower the Parent­Teachers Association to get information about tuition fees, term fees and fees for co­curricular activities, to facilitate it to analyse the claim of the school Management regarding the fee structure being reasonable or otherwise. It is on the basis of that information, the representatives of the Parent­Teachers Association, forming part of the SLFC, will be in a position to meaningfully interact either to give counter offer or agree with the proposal submitted by the school Management. Even though, the Act of 2016 is largely for regulation of fee, the information regarding the incidental aspect thereof as to whether co­curricular activities proposed by the school Management are necessary or not is significant. For, if Parent­Teachers Association is of the view that it is unnecessary, it can project its perception in that regard during the interaction to persuade the school Management to avoid such co­curricular activities and to reduce the burden of expenses to be incurred therefor. That would resultantly reduce the liability of the parents commensurately due to reduced fee liability. 48. Rule 6 deals with duties and functions of the SLFC. It specifies the additional duties to be performed by the SLFC besides the powers and functions specified in the Act of 2016. Rule 6 reads “6. Duties and functions of School Level Fee Committee. ­ The School Level Fee Committee shall, in addition to the powers and functions specified in the Act, discharge the following duties and perform the following (a) to oversee the compliance of the provisions of the Act (b) to take decision on proposals received from Management, regarding determination of fee within time specified in sub­section (3) of section 6 of the Act; and (c) to make available necessary documents to the Divisional Fee Regulatory Committee or Revision Committee, as the case may be, where appeal is filed by the Management.” We fail to understand as to how Rule 6 would come in the way or infringe the fundamental right of the school Management guaranteed under Article 19(1)(g) of the Constitution. This Rule gives additional powers to the SLFC for ensuring compliances of the provisions of the Act of 2016 and the Rules made thereunder including regarding determination of school fees. 49. Rules 7 and 8 of the Rules of 2017 deal with meeting of the SLFC and procedure to refer proposal to DFRC and to file appeal and revision before the Statutory Regulatory Committees “7. Meeting of the School Level Fee Committee. ­ (1) The Chairperson of the School Level Fee Committee shall call the meetings of the School Level Fee Committee. The Secretary of the committee shall issue notice of meeting to the members of the School Level Fee Committee in Form­II. The notice shall be issued fifteen days before the date of meeting. (2) The notice shall be sent to each member of the School Level Fee Committee by registered post or delivered through any other mode. The acknowledgement of notice shall be preserved for a period of one year. (3) No business shall be transacted in the meeting of the School Level Fee Committee unless four members are present out of which at least two shall be the parent members of the School Level Fee Committee. If there is no quorum, the Chairperson of the School Level Fee Committee shall adjourn the meeting. The adjourned meeting shall be recalled again after the lapse of ten days from the date of the meeting which is adjourned. (4) The Secretary of the School Level Fee Committee shall prepare minutes of the meeting and circulate the same to all the members within fifteen days from the date of the meeting. (5) The minutes of the meeting shall be made available to the District Education Officer or Deputy Director concerned, as and when required. (6) If a parent member is absent for three consecutive meetings, his membership shall be deemed to be cancelled and such vacancy shall be filled in by lottery, from amongst the applications received for that academic year under rule 8. Procedure to refer proposal to Divisional Fee Regulatory Committee and to file appeal before Divisional Fee Regulatory Committee and Revision Committee under section 6 of the Act. ­ (1) The Management of the school shall submit fee proposal to the School Level Fee Committee at least six months before the commencement of the next academic year in Form­III. (2) If the School Level Fee Committee fails to decide the fees within the period specified in sub­section (3) of section 6 of the Act, the management shall immediately refer the matter in Form­IV, along­with the proposal submitted to the School Level Fee Committee, to the Divisional Fee Regulatory Committee, within thirty days of expiry of the period specified in sub­section (3) of section 6 of the Act, for its decision. (3) The management may prefer an appeal in Form­V against the decision of the School Level Fee Committee within 30 days from the date of decision of the School Level Fee (4) The management or School Level Fee Committee aggrieved by the decision of the Divisional Fee Regulatory Committee in appeal or reference may, within thirty days from the date of such decision, prefer an appeal, in Form­VI, before the Revision Committee along with the proposal of fees submitted by management and the copy of the decision of the School Level Fee Committee and Divisional Fee These Rules deal with purely procedural matters and are in line with the powers and functions of the concerned Committees. The Rules provide for the manner in which the proposal is to be submitted by the school Management and to be taken forward. These provisions in no way affect the fundamental right guaranteed under Article 19(1)(g) of the Constitution much less autonomy of the school Management to determine the fee structure itself in the first place including the administration of the school as such. 50. The next challenge is to Rule 11 which obligates the private schools to maintain accounts and other records in the manner prescribed thereunder. The same reads thus: “11. Maintenance of accounts and other records.­ (1) (a) maintain separate accounts for different kinds of transactions, such as, fees collected, grants received, financial assistance received, payments of salary to staff, purchase of machinery and equipment, laboratory apparatus and consumables, library books, stationery, computers, software and other expenditure incurred; (b) keep the registers, accounts and records within the premises of their school as they shall be made available at all reasonable time for inspection; and (c) preserve the accounts maintained, together with all vouchers relating to various items or receipts and expenditure, until the audit of accounts is over and objections, if any, raised are settled. (2) Every private school shall, in addition to accounts and records specified in sub­rule (1), maintain the following, (g) Staff Attendance Register and Staff Salary Register; (3) Every private school shall also maintain the other record of the institution as per the orders issued by the Government, from time to time.” In our opinion, even this provision by no stretch of imagination would affect the fundamental right of the school Management under Article 19(1)(g) of the Constitution much less to administer the school. This provision, however, is to ensure that a meaningful inquiry can be undertaken by the SLFC or the Statutory Regulatory­cum­Adjudicatory Authorities in determination of the fact whether the fee structure propounded by the school Management results in profiteering or otherwise. If information is furnished in any other manner (other than the manner specified in Rule 11), it would become difficult for the concerned Committees/Authorities to answer the contentious issue regarding profiteering. The fee structure determined by the school Management can be altered by the Adjudicatory Authorities only upon recording a negative finding on the factum of amount claimed towards school fees relating to particular activities is an essential expenditure or otherwise; and that the fee would be in excess of reasonable profit being ploughed back for the development of the institution or otherwise. The recovery of excess amount beyond permissible limit would result in profiteering and commercialisation. In our opinion, therefore, even Rule 11 is a relevant and reasonable provision and does not impact or abridge the fundamental right under Article 19(1)(g) of the Constitution. 51. The last assail was on the argument that the field regarding (school) fee, in particular capitation fee is already covered by the law enacted by the Parliament being RTE Act and for that reason, it was not open to the State to enact law on the same subject such as the impugned Act of 2016. This argument is completely misplaced and tenuous. For, the purpose for which the RTE Act has been enacted by the Parliament is qualitatively different. It is to provide for free and compulsory education to all children of the age of 6 to 14 years, which is markedly different from the purpose for which the Act of 2016 has been enacted by the State legislature. Merely because the Central Act refers to the expression “capitation fee” as defined in Section 2(b) and also in Section 13 of the RTE Act — mandating that no school or person shall, while admitting a child, collect any capitation fee, does not mean that the Central Act deals with the mechanism needed for regulating fee structure to ensure that the schools do not collect fees resulting in profiteering and commercialisation. By its very definition, the capitation fee under the Central Act means any kind of donation or contribution or payment other than the fee notified by the school. On the other hand, fee to be notified by the school is to be done under the impugned Act of 2016 after it is so determined by the school Management and approved by the SLFC or by the Statutory Regulatory Authorities, as the case may be. Suffice it to observe that the field occupied by the Central Act is entirely different than the field occupied by the State legislation under the impugned Act of 2016. The impugned Act of 2016 deals specifically with the subject of regulating fee structure propounded by the private unaided school management. Hence, there is no substance in this challenge. 52. Taking overall view of the matter, therefore, we uphold the conclusion of the High Court in rejecting the challenge to the validity of the impugned Act of 2016 and Rules framed thereunder. However, we do so by reading down Sections 4, 7 and 10 of the Act in the manner indicated in paragraphs 28; 37/38 and 42 respectively of this judgment. These provisions as interpreted be given effect to, henceforth, in conformity with the law declared in this judgment. For the reasons mentioned hitherto, we hold that the High Court rightly concluded that the provisions of the Act of 2016 as well as the Rules of 2017 are intra vires the Constitution of India and not violative of Articles 13(2) and 19(1)(g) of the 53. These appeals assail the common judgment and order dated 18.12.2020 of the Division Bench of the High Court of Judicature for Rajasthan at Jaipur whereby all the connected cases involving challenge to the orders dated 09.04.2020, 07.07.2020 and 28.10.2020 issued by the State Authorities were disposed of. 54. The order dated 09.04.2020 was issued by the Director, Secondary Education, in the wake of COVID­19 pandemic, directing the private schools recognised by the Primary and Secondary Education Departments to defer collection of school fees for a period of three months. The said order reads thus: As per the direction issued by Hon’ble Chief Minister, order is being issued in regard to collection of fees by Elementary and Secondary Education Department recognized non­ government schools, which is as follows:­ 1. No fee will be charged by non­government schools from the students/guardians of the period after 15 th March, the applicable fees at present and payment of advance fees which is deferred for 3 months. In case of non deposition of fees during this period, name of such student will not be struck off from the rolls of the school. 2. In case of continuation of the studies in the non­ government schools, the deferred fees for the present session 2020­21 will be chargeable after deferment period is over. 3. After completion of the Lock down period, if any student of non­government school wants his Transfer Certificate for continuing studies in another school then the same can be obtained after depositing fees of the previous session 2019­ 20 and obtaining the no­dues certificate. dated 09.04.2020” 55. Before expiry of the period noted in the aforementioned order, the Director, Secondary Education issued another order on In continuation of the Government letter No.P.8(3) Shiksha­ 5/COVID­19 Fees Staghan/2020 dated 01.07.2020, for collection of fees by Elementary and Secondary Education Department recognized non­government schools, the 1. The fee chargeable by non­government schools from the students/guardians after 15th March, the applicable fees at present and payment of advance fee was deferred for 3 months, as per the direction of the State Government the said deferment is extended till the reopening of the schools. In case of non­deposition of fees during the said period, name of such student will not be struck off from the rolls of the school. 2. Remaining all will be as per order No. (Shivra/Ma/PSP/Sikayat/Vetan/2019­20) dated 56. The private unaided schools then filed writ petition(s) before the High Court challenging the aforesaid orders dated 09.04.2020 and 07.07.2020. The learned Single Judge of the High Court Bench at Jaipur considered the prayer for interim relief and vide order dated 07.09.2020 directed the school Authorities to allow the students to continue their studies online and also to deposit only 70 per cent of the tuition fees element from the total fees chargeable for the period from March 2020 in three instalments. The relevant extract of the order of the learned Single Judge dealing with the prayer for interim relief at the instance of the appellants­Schools “13. I have considered the submissions as above and perusal the material available on record. 14. While there are myriad issues involved in the present batch of the writ petitions, which are required to be examined finally; at this interim stage, this Court finds that a balance is required to be struck between financial difficulty of the school management relating to release of the salary of the staff and minimum upkeep of school on one side and the financial pressure, which has come on the parents due to the pandemic and lock­down as noticed above. 15. After noticing the judgments passed by the High Court of Gujarat at Ahmedabad in the case of Nareshbhai Kanubhai Shah Versus State of Gujarat & 2 Others: R/Writ Petition (PIL) No.64/2020 and other connected matters decided on 31.7.2020, the High Court of Punjab and Haryana at Chandigarh in the case of Independent Schools Association Versus State of Punjab & Others: CWP No.7409/2020 and other connected matters decided on 30.6.2020 and the High Court of Delhi in the case of Rajat Vats Versus Govt. of Nct of Delhi & Another: WP (C) No.2977/2020 decided on 20.4.2020, this Court is of the view that prima facie, members of the petitioner association cannot be deprived of receiving the tuition fees for the students, who continued to remain on their rolls. 16. However, this Court notices that total infrastructure cost, which the school may incur for the regular studies during normal days, has been definitely reduced day to day schools are not opening. It is noticed that the tuition fees is assessed on the basis of the infrastructure expenditure including staff salary and operation cost incurred by the schools in terms of the provisions of the Rajasthan Schools (Regulation of Fee) Act, 2016, after following the procedures laid down therein. 17. This Court agrees prima facie with the counsel for intervenors that while the institutes had to incur certain additional expenditure for developing online classes process, the same would be less than individual expenditure being incurred by the parents for providing infrastructure to their each ward, who is undergoing online classes at home. There may be also cases where the parents may have two or three children. To each one separate laptop or computer will be required to provide as all of them would be undergoing online classes at the same time. Thus, comparative balance is required to be maintained. 18. Prima facie, this Court is also of the view that under the Act of 2005, the authorities would have jurisdiction to lay down policy, guideline and direction, which may be found to be suitable for the purpose of providing the relief to the persons affected by the disaster as mentioned in Section 22 of the Act of 2005. The guidelines can be laid down for mitigation of such loss to the citizens. The powers and functions of the State Executive Committee under Section 22(j) provide that the State Executive Committee shall ensure that non­governmental organizations carry out their activities in an equitable and non­discriminatory manner. The petitioners are all non­governmental organizations and are expected therefore to play their necessary role in mitigating the sufferance caused to the public at large, while at the same time also protect their own staff from facing financial difficulties. This Court is also conscious of the fact that the State­respondents, while passing the impugned orders, have not taken into consideration the difficulties, which the staff of the concerned school would face on account of non­payment of the fees. However, burdening the parents with complete tuition fees would not be appropriate and justified. 19. In view of the above, this Court by an interim measure and till the situation gets normalized, directs the school authorities to allow the students to continue their studies online and allow them to deposit 70% of the tuition fees element from the total fees being charged for the year. The said 70% of the tuition fees shall be paid for the period from March, 2020 in three installments to the respective schools. However, it is made clear that on non­payment of the said fees, the student(s) may not be allowed to join online classes, but shall not be expelled from the school. The three installments shall be fixed by depositing the first installment on or before 30.9.2020 while the second installment shall be paid by 30.11.2020 and third installment shall be paid by 31.1.2021. However, it is further made clear that the question regarding remaining fees shall be examined at the stage of final disposal of these writ petitions. The orders are being passed as interim arrangement subject to final adjudication of the case. 20. The stay applications are accordingly disposed of.” 57. Against this decision, intra­court cross appeals came to be filed. In those appeals, the Division Bench vide order dated 01.10.2020 stayed the operation of the interim order passed by the learned Single Judge. The appeals were then heard on 12.10.2020 and reserved for orders. However, as representations were received from several counsel that they were unable to interact with the court through video conferencing, the matters were notified for further hearing on 14.10.2020. The Court then directed listing of appeals on 20.10.2020. However, before next date of hearing, the State Government vide order dated 16.10.2020 constituted a four­ member Committee to give suggestions to the State Government in relation to recovery of fees from parents/students by Private/Non­ Government Educational Institutions during the academic session 2020­21. The High Court was apprised about this development when the matters were taken up on 23.10.2020 as is noticed from Mr. Rajesh Maharshi, AAG, submits that a committee has been constituted for determination of fees to be charged by the private schools for the period of lockdown imposed due to Covid­19 Pandemic. The Committee is in process to finalize its recommendations and accordingly the affidavit shall be filed on behalf of the State Government on 2 nd of November 2020 positively. Mr. Kamlakar Sharma learned Senior advocate raised serious objection and prayed for interim measure in view of the great hardship being faced by the private schools to run their institutions. Considering the hardship of the private schools, it is directed that the State Government shall issue necessary directions by 28.10.2020 positively regarding interim fees which the private schools shall be allowed to charge subject to final decision in this regard. In the meanwhile, necessary affidavit in compliance of earlier directions shall be filed by the State Government by 02.11.2020 without fail after providing a copy of the same to all the parties. List on 03.11.2020” 58. The appeals were, thus, directed to be notified on 3.11.2020. Before that date, however, the Director, Secondary Education issued order dated 28.10.2020, which reads thus: The Hon’ble High Court in DB Special Appeal No.637/2020 Sunil Samdria versus State of Rajasthan and other Special Appeals passed an order dated 23.10.2020 directing the State Government to take a decision in regard to charging of school fees from guardians/students for academic session 2020­21 keeping in view COVID pandemic and the guidelines be issued by 28.10.2020. In compliance of the order passed by Hon’ble Rajasthan High Court, Jaipur dated 23.10.2020 and in pursuance to the State Government’s letter No. P.8(3) Shiksha­5/COVID­19 Fees Staghan/2020 dated 28.10.2020, the guidelines for charging of school fees for the academic session 2020­21 by non­government educational institutions from students/guardians, are issued which are as follows:­ 1. After reopening of the school only tuition fees will be charged from the students. 2. The tuition fees will be as per the prescribed syllabus for teaching. Like CBSE for class 9th to 12th has reduced 30% of the syllabus and has prescribed 70% of the syllabus, hence, the fees to be charged for this session will be 70% of the tuition fees of last academic session. Similarly, Rajasthan Board of Secondary Education for class 9th to 12th has reduced 40% of the syllabus and has prescribed 60% of the syllabus, hence, the fees to be charged for this session will be 60% of the tuition fees of last academic session. 3. Looking to the circumstance arising out of COVID­19 pandemic, the decision to call the students of Class 1 st to 8th to school has not been taken, hence whenever the decision is taken and as per the reduction of syllabus, in the same proportion the fees will be charged. 4. The fees decided as per above payable to the school for which guardians/student will be given option of payment of fees monthly/quarterly. 5. The schools will not change the uniform prescribed in the previous academic session. 6. The facilities not being utilized by students like laboratory, sports, library, curricular activities, development fees, boarding fees etc. no fees under this head will be charged by schools. 7. For presence of the students in the school, written consent of the guardians will be required. 8. In case the student is using conveyance provided by the school like Bal Vaihani etc. then the conveyance charges can be charged but it will not be more than the conveyance fees charged during the previous academic session. The conveyance fees will be in proportion to the number of working days after reopening of the schools. 9. The conveyance being provide by the schools for students will have to follow the COVID­19 guidelines prescribed by State Government and any other directions issued by 10. The SOP issued by State Government will have to be adhered to by the non­government schools. 1. The schools will determine the fees to be charged from students after reopening of the school as per the prescribed syllabus for teaching. 2. Before opening of the schools the online teaching work was for making them acquainted i.e. capacity building was the objective. Hence, the fees chargeable will be termed as capacity building fees. 3. The schools which were/which are imparting online teaching then capacity building fees can be charged from such students which will be 60% of the tuition fees. For online teaching, the consent of the guardians will be necessary and capacity building charges can be charged from consenting students. 4. When the schools reopen, it will be duty of schools to impart the complete syllabus as prescribed by the board to the students who did not study in online classes and the said syllabus will have to be completed by the schools the schools will ensure equality between the online and offline students. 5. The capacity building charges will be charge from the guardians in monthly installments. 6. Till the permission is granted by Government for starting class/classes of students and online teaching is imparted regularly for that period only the capacity building fees will be charged. 7. If any student does not subscribe to the online education being provided by the school, no capacity building fees will be charged. 1. The fees determined by school fee committee formed as per Rajasthan Schools (Regulation of Fees) 2016 and Rules 2017 will be the basis for aforesaid determination of fees which will clearly mention the various fees i.e. tuition fees, library fee etc. 2. The prescribed total fees and tuition fees of last year will not be increased. 3. Every guardian will be provided of receipt of tuition fees/capacity building fees. The said receipt will contain the details of the prescribed fees and the reduced fees necessarily. 4. The students who are undergoing online classes and want to continue with online classes but their guardians are unable to pay the fees, in such cases a committee will be formed at school level which will examine such cases and will take a decision in regard to the relaxation of fees to be granted looking to the circumstances from case to case. 5. The remaining fees for the academic session 2019­20 (remaining till the schools remained open) will be charged in equal monthly installments. The guardians of such students will not compelled to pay the fees in single installment. 6. No student will be prevented from registration for Board Examination even if he has not attended the online classes and has not paid the fees, even the transfer certificate of such students will not be issued. 7. If any student wants to take transfer certificate and has attended online classes than capacity building fees as per aforesaid provision can be charged. 8. For charging fees as per aforesaid the non­government schools will pay prescribed salary to the employees had teachers and no retrenchment will be done due to circumstances of COVID­19. The aforesaid has been approved by competent level. All concerned ensure the compliance. 59. This order was assailed by some of the private schools before the High Court by way of substantive writ petition(s), which, as per the High Court Rules was required to proceed before the Single Judge in the first place. In addition, applications were filed in the pending intra­court appeals before the Division Bench seeking liberty to challenge the order dated 28.10.2020 issued by the Director, Secondary Education. As a result, the Division Bench with the consent of parties thought it appropriate to hear all the matters including involving challenge to the order dated 28.10.2020 of the Director, Secondary Education. 60. Accordingly, the appeals and writ petitions were heard and decided together by the common judgment and order pronounced on 18.12.2020, which is impugned in the present appeals. The Division Bench vide impugned judgment opined that the State Government was competent and had jurisdiction to issue directions as given vide order dated 28.10.2020 of the Director, Secondary Education, being a policy decision necessitated due to aftermath of pandemic situation. The Court held that in absence of any legal provision to address the unprecedented difficulties faced by the parents and their wards across the State, it was open to issue administrative directions in exercise of power under Article 162 of the Constitution and especially when there was no legal provision prohibiting issuance of such directions. The Division Bench also opined that such order could be issued even in exercise of power under Section 22 of the Disaster Management Act, 2005 21. The Division Bench rejected the argument of the appellants that the stated order dated 28.10.2020 does not mention the source of power under which the same has been issued by the Director, Secondary Education or that it was vitiated due to lack of opportunity of hearing to the school Management(s). Instead, the Court held that even if there is no formal authentication of the order, it would be of no consequence. For, the direction was given by the Chief Minister being the administrative and political head of the State Government. It was the bounden duty of the State Government to reckon the ground realities and strike a balance between the interests of private schools as well as of the parents and students and to mitigate the plight of the citizens due to unprecedented crisis post COVID­19 pandemic. The Court did advert to the fact that the school Management was obliged to honour its commitment, rather obligation to pay salary to its staff on account of governing statutory provisions despite the pandemic situation. Further, the State of Rajasthan had adopted a different 21 for short, “the Act of 2005” pattern of substantially reducing the school fees in comparison to other States. Nevertheless, it noted that it is always open to the school Management as well as the parents to approach the statutory forum for determination of just fee under the Act of 2016. The Division Bench finally proceeded to conclude as follows: “In view of the above discussion, the rest of the petitions are I. All the private schools recognized by the Primary and Secondary Education Department shall be entitled to collect school fees from the parents of their students including the students of pre­primary classes in terms of the order dated 28.10.2020 issued by the State Government subject to special determination of fees as being directed hereunder. II. All the private schools are directed to form necessary bodies required for special determination of fees within 15 days, if such bodies have not been constituted so far in terms of Rajasthan Schools (Regulation of Fee) Act 2016, and Rajasthan Schools (Regulation of Fee) Rules 2017. III. In order to safeguard the interests of the schools’ management and the parents, it is further directed that all the private schools recognized by the Primary and Secondary School Education Department shall specially determine the school fees for the period in which schools remained closed due to COVID­19 pandemic and after opening of the schools in the Session 2020­ 2021 in terms of the provisions of Section 8 of Rajasthan Schools (Regulation of Fee) Act, 2016 and for this purpose all the schools shall publish necessary details including the strength and salary paid to the staff during the period in which the schools remained closed for such special determination on their notice boards as well as on their websites. This special determination of school fees shall be completed within two months from the date of order positively. IV. With the object to prevent any unfair practice of collection of fees in the process of this special determination of fees the component of tuition fees shall be specifically determined and for that purpose, all heads of the school fees shall be bifurcated as mandated under Section 6(4) of the Act of 2016. V. Besides this, the schools’ management or the parents may take recourse of the provision of appeal/reference before as the case may be in case any of them are aggrieved of such special determination. Needless to say, that in the process of above special determination of school fees, it will be open for the schools’ management and the parents to determine the fees in consonance with the directions contained in order dated 28.10.2020 or they may increase or decrease the fees to be collected for the current session. VI. The interim order dated 07.09.2020 passed by learned Single Judge stands vacated.” 61. In this backdrop, the management of private unaided schools in the State of Rajasthan have approached this Court to assail the impugned judgment of the Division Bench of the High Court and also the order dated 28.10.2020 issued by the Director, Secondary Education. As a matter of fact, challenge to the orders issued by the Director, Secondary Education on 09.04.2020 and 07.07.2020 had worked out due to efflux of time. For, by these orders the school Management was merely directed to defer collection of school fees for specified period as noted therein; and that period had already expired. Thus, our focus in this judgment will be and ought to be only on the legality and rationality of the order issued by the Director, Secondary Education on 28.10.2020 and applicable to academic year 2020­21 only, including the basis on which the same has been upheld by the High Court vide impugned judgment. 62. According to the appellants (private unaided schools), the school fee charged from their students was fixed by the SLFC in its meeting held on 28.10.2017, by following procedure prescribed under the Act of 2016 and the Rules framed thereunder. The same was to remain in force for the academic years 2018­19, 2019­20 and 2020­21. In the present appeals, as aforementioned, we are concerned only with the school fees pertaining to the academic year 2020­21, in light of the impugned order dated 28.10.2020 issued by the Director, Secondary Education. 63. The appellants would urge that being a responsive school administration and also being deeply concerned with the development of wards pursuing education in the concerned schools, the school Management “on their own” had decided to offer scholarship of 25 per cent of the annual fee to their students. That was to mitigate the difficulties faced by the parents and keeping in mind that certain recurring expenses were not being incurred by the school Management during the lockdown period. Be that as it may, in law, it is not open to the State Authorities to modify the school fees once fixed by the SLFC for the relevant academic year that too in the manner done by the Director, Secondary Education vide order dated 28.10.2020. The fact that the parties are at liberty to challenge the modification/reduction of school fees before the statutory forum does not justify the issue of such an order — unless the State Authorities have clear mandate to do so under the governing law. The departure made by the Director, Secondary Education vide order dated 28.10.2020 was not acceptable to the school Management, being ex facie illegal. It does not disclose the source of power under which it has been issued. At best, it can rely on the interim observations made by the High Court in the proceedings pending at the relevant time. Those observations cannot confer power on the State Authorities when no such power exists in the State Government in relation to modification/reduction of fee structure determined by the school Management and approved by the SLFC. Moreover, it is well­established that there can be no rigid uniform fee structure for all the private unaided schools in the State. The High Court had erroneously assumed that the power exercised by the Director, Secondary Education was ascribable to Article 162 of the Constitution. For, the subject of school fees is fully covered and governed by the provisions of the Act of 2016 and the Rules framed thereunder. Therefore, in the name of policy decision, the impugned order dated 28.10.2020 cannot be sustained, which on the face of it is not in conformity with the express statutory provisions governing the subject of school fees. 64. It is urged that there was no express provision in the Act of 2016 permitting such intervention by the State Authorities in respect of school fees already fixed under the Act of 2016. Reliance placed on Section 18 of the Act of 2016 was completely inapposite as that merely confers power upon the State Government to issue directions consistent with the provisions of the Act of 2016 and for carrying out the purposes of that Act or for giving effect to any of the provisions of that Act. Thus, recourse cannot be taken by the State Authorities to the provisions of the Act of 2016 much less Section 18 to justify the impugned order dated 28.10.2020. In any case that order, on the face of it, is unreasonable, arbitrary and irrational. For, Section 8 provides for the parameters for determination of school fee and admittedly the school fee had already been fixed by the SLFC on 28.10.2017 which was still in force and applicable for the academic year 2020­21 as well. Therefore, it was not open to reduce the same much less limit it to only one parameter of tuition fee amongst other parameters referred to in Section 8. 65. It is urged that reliance placed on Section 18 of the Act of 2016 is completely ill­advised. There is no mechanism in the Act of 2016 to review or reduce the school fees once approved by the SLFC or determined by the Statutory Regulatory Authorities. On the other hand, as per Section 6(3) such school fee is binding on all concerned for three academic years, which in the present case was to remain in force until the academic year 2020­21. Further, the reduction of school fees has been erroneously linked to the instructions issued by the concerned Board. In fact, the Board had issued directives to complete the course including through online training/teaching. Moreover, there is no concept of “capacity building fee” under the Act of 2016. The expression “capacity building” obviously has been borrowed from the legislation such as the Act of 2005. In any case, it is necessary to make factual enquiry school wise as to whether the concerned school had completed the entire syllabus for the relevant academic year; and also, whether the liability of the school towards teaching and non­ teaching staff and their administrative and infrastructure (recurring) expenses, had been discharged by the school 66. It is then urged that the High Court committed manifest error in upholding the impugned order dated 28.10.2020 as being ascribable to exercise of power under the Act of 2005. For, the stated Act provides express mechanism as to when and by whom the power to issue directions can be exercised. The Director, Secondary Education has no such power under the Act of 2005 nor the State Government could do so thereunder much less to reduce the school fees fixed after approval of the SLFC in terms of the mechanism stipulated under the Act of 2016. The provisions of the Act of 2005 are limited to providing effective management of disasters and for matters connected therewith or incidental thereto. 67. The manner and method of addressing such disaster and in particular “disaster management” as defined in Section 2(e) of the Act of 2005 is by preparation of a plan for disaster management by the authority concerned under that Act. A National Plan, State Plan or District Plan is required to be prepared under the Act of 2005. That is in respect of prevention of disasters or mitigation of their effects. It is the direct effect of disaster that is required to be mitigated and not indirect hardship caused to individuals much less in respect of contractual matters. The plan must advert to the measures to be taken for the integration of mitigation measures in the development plans and the measures to be taken for preparedness and capacity building to effectively respond to any threatening disaster situations or disaster including the roles and responsibilities of different Ministries or Departments of the Government of India. In any case, the action is to be initiated by the State Authorities, established under the Act of 2005, namely, the Disaster Management Authority at the concerned level. In the scheme of the Act of 2005, there is nothing to indicate that the Authorities can interfere with contractual matters or indirect hardships — such as inability of parents to pay school fees due to pandemic situation. The Director, Secondary Education, in no way, is concerned with the preparation of a disaster plan or its enforcement and implementation under the Act of 2005. As a result, the order dated 28.10.2020 cannot be sustained with reference to the provisions of the Act of 2005. The provision in the form of Section 72 of the Act of 2005 is also of no avail because the same is in reference to the provisions of the Act, which, as aforesaid, in no way apply to the subject of fixation and collection of school fees. That subject is exclusively governed under the Act of 68. Even the invocation of provisions of the Rajasthan Epidemic Diseases Act, 202022 by the State to justify the stated order has been stoutly refuted by the appellants. The powers required to be exercised by the State Government under the Act of 2020 are delineated in Section 4 of the Act of 2020. None of these measures (referred to in Section 4) concern the subject of determination of school fees much less reduction of school fees once it is approved by the SLFC and is in force for the concerned academic year. The general provision in Section 4(2)(g) permitting the Government to 22 for short, “the Act of 2020” regulate or restrict the functioning of offices, Government and private and educational institutions in the State, would not give authority to the State Government to decide about the fee structure of the concerned unaided private school. The regulation can be in regard to the timings when the school should be opened and closed and the protocol to be followed by the school during the working hours, as the case may be. That provision does not empower the State Government to reduce the school fees which is approved by the SLFC and is in force for the concerned academic year. 69. According to the appellants neither the order dated 28.10.2020 issued by the Director, Secondary Education can be sustained in law nor the reasons weighed with the Division Bench of the High Court in the impugned judgment to uphold the same can stand the test of judicial scrutiny. 70. Learned counsel for the minority private unaided school additionally contended that the order issued by the Director, Secondary Education violates the fundamental rights guaranteed under Article 19(1)(g) as well as Article 30(1) of the Constitution. That the right to fix the school fees is a fundamental right under Articles 19(1)(g) and 30 of the Constitution which cannot be regulated by the State except for preventing profiteering and capitation fee. To buttress his submission, reliance was placed on the dictum in T.M.A. Pai Foundation23 (supra), P.A. Inamdar24 (supra) and Modern School25 (supra). He would submit that in the case of minorities, the State regulation on minority right has to satisfy a dual test — the test of reasonableness and the test that it is regulative of the educational character of the institution and is conducive to make the institution an effective vehicle of education for the minority community and for other persons to resort to it. Learned counsel has also relied upon the decision dated 20.05.2020 of the Delhi High Court in the case of Ramjas School vs. Directorate of Education26 wherein the High Court noted that in the case of unaided educational institutions, availability of surplus is no ground to disapprove the fee hike. Absent any charging of capitation fee/profiteering, the State Authorities cannot reject the fee proposal of the school Management and that the quantum of fee to be charged is an element of administrative functioning of the 26 Writ Petition (C) No.9688 of 2018 (paras 66, 78, 88 and 91) school, over which the autonomy of the unaided educational institution cannot be compromised. He has also placed reliance on the decision of the Delhi High Court in Naresh Kumar vs. Director of Education, Delhi27 decided on 24.04.2020. He then invited our attention to the decision of this Court in Pramati Educational and Cultural Trust (Registered) & Ors. vs. Union of India & Ors.28 wherein the Constitution Bench opined that the RTE Act will not apply to minority educational institutions. Whereas, non­ minority institutions are bound by the RTE Act to provide 25 per cent admission to economically weaker sections of the society and to get reimbursement from the Government towards unit cost. In substance, he has iterated the argument that the school Management(s) of private unaided schools has a right to fix their fee structure and to collect school fees as approved by the SLFC or the 71. Per contra, learned counsel appearing for the State and representing the parents submit that due to extraordinary and unprecedented situation arisen due to complete lockdown for such 27 Writ Petition (C) No.2993 of 2020 (paras 18 to 21) a long period, the parents are not in a position to pay the fixed school fees. It is only because of large number of representations made by them, the State Government responded by issuing orders on 09.04.2020 and later on 07.07.2020 to defer the payment of school fees and finally to reduce the school fees in terms of order dated 28.10.2020 issued by the Director, Secondary Education. The dispensation provided in the order dated 28.10.2020 is merely to take mitigating measures and to assuage the concerns of the parents who were in dire need of such assistance. The measures taken by the State Government in terms of Sections 38 and 39 of the Act of 2005, cast onerous responsibility upon the Government to take all measures for mitigation and capacity building in the wake of a pandemic. These provisions must be given widest meaning as narrow construction would result in curtailing the powers of a welfare State to undertake measures for dealing with the unprecedented situation. The spirit of the provisions must be kept in mind and the court must uphold the validity of the impugned order which has been issued in larger public interest. Reliance has been placed on the dictum of this Court in the State of M.P. & Ors. vs. Nandlal Jaiswal & Ors. 29and Pathan Mohammed Suleman Rehmatkhan vs. State of Gujarat & Ors.30, to buttress this submission. 72. According to the respondents, Section 72 of the Act of 2005 gives an overriding effect over all other laws and, therefore, the power of the State Government exercised in terms of Sections 38 and 39 in respect of measures articulated therein, need not be constricted keeping in mind the language of the said provisions. In other words, all that is required to be done by the State to assuage the concerns of the society and citizenry related to the situation arisen from the lockdown due to pandemic, is permissible within the meaning of the said provisions. 73. It is urged that mere omission to mention the source of power will not invalidate the exercise of power itself as long as there is a valid source to that exercise of power as noted by this Court in High Court of Gujarat & Anr. vs. Gujarat Kishan Mazdoor Panchayat & Ors.31, M.T. Khan & Ors. v. Govt. of A.P. & Ors.32 and N. Mani vs. Sangeetha Theatre & Ors.33. 74. It is then urged that the order dated 28.10.2020 was necessitated and was in furtherance of the observations made by the Division Bench vide order dated 23.10.2020. That was, obviously, to fulfil the parens patriae obligations of the court as well as of the State. It is urged that the State has a legitimate interest under its parens patriae powers in providing care to its citizens and since the direction issued is to fulfil that obligation which was necessitated because of the unprecedented situation coupled with the fact that even the High Court had expressed a benign hope that the State Government ought to find out some arrangement, it became necessary to issue direction vide order dated 28.10.2020. Such power could be exercised even as a policy matter and the State Government is competent to do so under Article 162 of the 75. It is also urged that the direction given by the Director, Secondary Education vide order dated 28.10.2020 could be issued by the State in exercise of power under Section 18 of the Act of 2016 and hence, no fault can be found with the State Government having exercised that power. 76. It is urged on behalf of State that the issue in the present appeals is limited to the justness of the order dated 28.10.2020 and, therefore, the direction given to the State in the interim order passed by this Court on 08.02.2021 to ensure that all government outstanding dues towards unit cost payable to respective unaided school are settled within one month from the date of the order, was inapposite and needs to be recalled. It is urged that computation of the unit cost is complex and assessment thereof is a time­ consuming process. 77. Learned counsel for the State in his written submission has finally suggested to modulate the relief to be given in these appeals “5. Re: Modulation of the relief in the present matter  The initial notification issued by the State Government on 09.04.2020 and 07.07.2020 have outlived its utility and worked itself out. The Constitutional Courts do not pronounce upon any academic matter. The validity of the Circular dated 09.04.2020 and 07.07.2020 have become academic in wake of subsequent events.  The order dated 28.10.2020 can also become passed if following relief, with utmost humility, is granted: (a) The management of each school shall propose the fee structure in terms of Section 6(1) and place it before the school­level committee within a period of 15 days from the date of judgment of this Hon’ble Court. This shall be exclusively for Covid Year (2020­2021) irrespective of earlier determination of fees. (b) The management shall take into account the special circumstances of the COVID and curtailment of expenses during COVID along with the factors mentioned in Section 8 of the Act of 2016. The management shall be reasonable and explain expenditure under each head as enjoined by the statute. Section 6(4) read in conjunction with Section 8 of the Act. (c) The school­level fee committee will approve the fee within a period of 30 days. (d) There shall be compulsory fixation of fee for COVID year 2020­21 separately (alone) for each school in accordance with the provisions of the Act of 2016. (e) The fixation of fee for 2021­22 can, thereafter, take place normally in accordance with the provisions of the Act of 2016.  Thus, the final school fee shall come into existence for the COVID year 2020­21 within a period of 45 days from the date of judgment of this Hon’ble Court and the order of 28.10.2020 interim order passed by this Hon’ble Court shall subsume in the same.” 78. According to Ms. Pragya Baghel, learned counsel representing the parents, the State Government had not followed proper procedure for determination of 70 per cent of the tuition fees and that decision is not backed by any tangible material on record. Moreover, the impugned decision was taken without giving opportunity to the stakeholders, in particular the parents’ association. For which reason, such a decision should not be allowed to be taken forward by the State Government. It is then urged that the action taken under the Act of 2005 was obviously in larger public interest and being a policy decision would not be amenable to judicial review. In any case, the appropriate course would be to relegate the parties before a special Committee comprising of a retired Judge of the High Court, one Chartered Accountant and retired Teachers/Officers nominated by the Director of Public Education Board, who can take an appropriate decision after hearing all the stakeholders. 79. A written submission has also been filed on behalf of parents (by Mr. Sushil Sharma and others) contending that online classes are not a recognised form of education and that is being done by the private schools on their own without any defined syllabus by the Board. No planning or infrastructure required for online education is in place. No permission has been obtained by the private schools to conduct online classes from the concerned Boards nor any feedback is taken from the parents about the efficacy of the online teaching. It is urged that there is no uniformity in the teaching methodology or any standard operating procedure or protocol prescribed by the concerned Boards to be followed by the private schools. The focus is essentially on the disadvantage of online classes conducted by the private schools. It is also urged in the written submission that the recommendation made by the State Government and recognition of online classes as capacity building classes are inappropriate. At the end, it is urged that this Court ought to direct waiver of complete fees for the duration schools were closed and direct the State to prescribe a fixed fee for online classes to a standard uniform charge on par with NOIS across schools and to declare exams taken by the schools so far as invalid in law and to issue such other direction as may be necessary. 80. Another written submission filed for the intervener ­ Mr. Charanpal Singh Bagri, claiming to be parent in a private school in the State of Punjab. He has raised several issues including the questions pertaining to the matters concerning the schools in the State of Punjab which are sub judice. In our opinion, it is not necessary to dilate on this written submission as the present appeals pertain to the issues concerning the private unaided schools in the State of Rajasthan governed by the Act of 2016 and the Rules framed thereunder. It will be open to the intervener to pursue all the points raised in the written submission in the proceedings pending in the High Court or this Court concerning the private schools in the State of Punjab. We may not be understood to have expressed any opinion in that regard. 81. We also have the benefit of written submission filed by Mr. Sunil Samdaria, appearing in­person who has essentially commended us to uphold the impugned judgment and order dated 18.12.2020 of the High Court of Rajasthan and seeking directions to further reduce the school fees below the percentage specified in the order dated 28.10.2020 and as upheld by the High Court. In fact, he has gone to the extent of suggesting that no fee should be charged for the period the schools have remained closed in the academic session 2020­21 as that would result in profiteering by the school Management. According to this respondent, the schools have saved colossal amount of money towards electricity charges, water charges, stationary charges and other miscellaneous charges which are required for physical running of the school and which may not be collected by the school for the relevant period. 82. When the hearing of these appeals was in progress considering the urgency involved, we thought it appropriate to pass interim directions which were intended to address the concerns of all parties in some measure. That order was passed on 08.02.2021, List the matter on 15th February, 2021. Diary No(s). 44/2021 (XV), SLP (C) No. 577­579/2021 and Special Leave Petition (C) Diary No. 3533 of 2021 is taken up along with these matters, at the request of the petitioners therein. The hearing of these cases has been commenced and is part heard. But, since the hearing is likely to take some more time, we deem it appropriate to pass interim directions which will address the concerns of all parties in some measure. We propose to stay the impugned order on the following (a) The management/school may collect fees for the academic year 2019­2020 as well as 2020­2021 from the students, equivalent to fees amount notified for the academic year 2019­2020, in six monthly installments commencing from 5th March, 2021 and ending on 5th (b) The Management shall not debar any student from attending either online classes or physical classes on account of non­payment of fees, arrears/outstanding fees including the installments, referred to above, and shall not withhold the results of the examinations of any student on that account. (c) Where the parents have difficulty in remitting the fee in terms of this interim order, it will be open to those parents to approach the school concerned by an individual representation and the management of the school will consider such representation on a case­to­case basis sympathetically. (d) The above arrangement will not affect collection of fees for the academic year 2021­2022, which would be payable by the students as and when it becomes due and payable, and as notified by the management/school. (e) In respect of the ensuing Board examinations for classes X and XII (to be conducted in 2021) the school management shall not withhold the name of any student/candidate on the ground of non­payment of the fee/arrears, if any, on obtaining undertaking of the concerned parent/student. (f) The above arrangements would be subject to the outcome of these matters including the final directions to be given to the parties and without prejudice to the rights and contentions of the parties in these proceedings. (g) We also direct the State of Rajasthan to ensure that all government outstanding dues towards unit cost payable to respective unaided schools are settled within one month from the today and, in any case, before 31st Ordered accordingly. Heard in part. Hearing of the aforesaid cases, shall continue on 15th 83. Learned counsel appearing for the appellants had stated that if the Court were to make this interim arrangement absolute, the appellants would be satisfied with such a direction. However, as aforesaid, the respondents, namely, the State Government and the parents have a different perception and have addressed us fully to oppose grant of any relief to the appellants. 84. We have heard Mr. Pallav Shishodia, Mr. Shyam Divan, learned senior counsel, Mr. Puneet Jain and Mr. Romy Chacko, learned counsel for the appellants, Dr. Manish Singhvi and Mr. Devadatt Kamat, learned senior counsel for the State of Rajasthan and Mr. Sunil Samdaria, in­person. 85. At the outset, in this judgment we consciously opt to limit our analysis to the challenge/grounds concerning the legality and justness of the order dated 28.10.2020 issued by the Director, Secondary Education concerning private unaided schools in the State of Rajasthan and as applicable to the academic year 2020­21 only. We do not wish to advert to or analyse any other issue raised by the parties and we may not be understood to have expressed any opinion either way in that regard. 86. Undeniably, an unprecedented situation has had evolved on account of complete lockdown due to pandemic. It had serious effect on the individuals, entrepreneurs, industries and the nation as a whole including in the matter of economy and purchasing capacity of one and all. A large number of people have lost their jobs and livelihood as aftermath of such economic upheaval. The parents who were under severe stress and even unable to manage their day­to­day affairs and the basic need of their family made fervent representation to the school Management(s) across the State. A public discourse in that regard surfaced in the media which impelled the political dispensation to intervene. Thus, on the directions of the Chief Minister of the State of Rajasthan, the Department initially issued order dated 09.04.2020 merely to defer the collection of school fees which restriction was extended by subsequent order dated 07.07.2020. 87. The matter had reached the High Court and by way of interim arrangement, learned Single Judge of the High Court issued certain directions against which the parties approached the Division Bench of the High Court by way of intra­court appeals. During the pendency of intra­court appeals in deference to the observations of the court, the State Authority proceeded to issue further order on 28.10.2020, which, essentially is the subject matter of assail in these appeals. 88. The State cannot be heard to rest its argument to defend the impugned order dated 28.10.2020 as having been issued in light of benign hope expressed by the High Court. It could do so only if the law permitted the State Government to intervene on the subject of school fees of private unaided schools (minority or non­minority, as the case may be). Resultantly, what we need to examine in these appeals is whether order dated 28.10.2020 issued by the Director, Secondary Education can be sustained in law. 89. Although the stated order makes no reference to the source of power under which it had been issued, four different perspectives have been invoked by the State to justify the exercise of that power. First, it is competent to do so under Section 18 of the Act of 2016 itself. Second, being a policy decision, it could issue an executive direction to mitigate the concerns of the parents in exercise of power under Article 162 of the Constitution. Third, such power can be exercised by the State Government for mitigating the concerns of the parents and for capacity building of the stakeholders as one of the measures under the Act of 2005. Lastly, such direction could be issued also in exercise of power under the Act of 2020 by the 90. We now proceed to test the correctness of the pleas taken by the State Government in seriatim. 91. The source of power derived from Section 18 of the Act of 2016 is a flimsy argument. Section 18 of the Act of 2016 reads thus: “18. Power to issue directions. ­ The State Government may issue to any school such general or special directions consistent with the provision of this Act and the rules made thereunder as in its opinion are necessary or expedient for carrying out the purposes of this Act or for giving effect to any of the provisions contained therein or in any rules or orders made thereunder and the management of the school shall comply with every such direction.” This provision does bestow power on the State Government to issue general or special directions to any school within the State. However, such direction must be consistent with the provisions of the Act of 2016 and the Rules framed thereunder. It cannot be in conflict with the mandate of the Act and the Rules. Additionally, such directions must be necessitated due to expediency for carrying out the purposes of the Act and the Rules or to give effect to the applicable provisions. If the direction issued by the State Government does not qualify these parameters, it must follow that the same has been issued in excess of power bestowed under Section 18 of the Act of 2016. 92. After analysing the scheme of the Act of 2016, at least two aspects are amply clear. The first is that a firm mechanism has been specified under the Act of 2016 regarding determination of fee structure in the form of approval by the SLFC and, if required, adjudication by the DFRC and the Revision Committee. There is no express provision in the Act or Rules authorising the stated functionaries/authorities to modify the school fees once finalised in the manner provided by the Act of 2016. Whereas, the explicit mandate in the Act of 2016 is that, the fees so fixed by the concerned functionaries/authorities shall be binding on all concerned for three academic years. This is a clear indication of not altering the school fees unilaterally after it is fixed under the Act of 2016 in any manner for the specified period. If we may say so, it is in the nature of prohibition or a mandate to continue the same fee structure for at least three academic years, after it is fixed by the concerned authority under the Act. By its very nature, the direction given by the State Government is in conflict with the scheme of finalisation of fee structure under the Act of 2016 and also the binding effect thereof for the specified period of three academic years on all concerned. Thus understood, the direction issued by the State Government in the form of order dated 28.10.2020 does not satisfy the twin tests of being consistent with the provisions of the Act; and also being necessary or expedient for carrying out the purposes of the Act, as the case may be. 93. Suffice it to observe that the order dated 28.10.2020 being in the nature of direction, has been issued in breach of the pre­ conditions specified in Section 18 of the Act of 2016. As a matter of law, the State Government had no power, whatsoever, to interdict the fee structure much less which has been finalised and fixed by the concerned functionaries/authorities under the Act of 2016 itself before expiry of the statutory period as specified. As a result, Section 18 of the Act of 2016 will be of no avail to the respondents, in particular the State Government to justify the order dated 94. A fortiori, even the argument of the respondents relying upon the existence of executive power under Article 162 of the Constitution, ought to fail. It is well­established position that the executive power of a State under Article 162 of the Constitution extends to the matters upon which the legislature of the State has competency to legislate and is not confined to matters over which legislation has already been passed. It is also well­settled that the State Government cannot go against the provisions of the Constitution or any law. The subject of determination of fee structure and whether it entails in profiteering, is already covered by the legislation in the form of the Act of 2016 and the Rules framed thereunder. It is not as if there is no enactment covering that subject or any incidental aspects thereof. The Act of 2016, which in itself is a self­contained code on the said subject, not only provides for the manner in which the concerned school ought to finalise its fee structure, but also declares that the fee so finalised either by consensus or through adjudication mode shall be binding on all concerned for a period of three academic years. In any case, determination of fees including reduction thereof is the exclusive prerogative of the management of the private unaided school. The State can provide independent mechanism only to regulate that decision of the school Management to the extent that it does not result in profiteering and commercialisation. 95. Viewed thus, reliance placed on Union of India vs. Moolchand Kharaiti Ram Trust34 will be of no avail. In that case, the hospitals were obligated to render free treatment in lieu of allotment of government land to them for earning no profit and held in trust for public good. The Court opined that there was no necessity of enacting a law and the policy formulated by the State Government in that regard cannot be disregarded. 96. In the present case, we need not dilate on the factum as to whether the Director, Secondary Education could have issued such a policy document in exercise of executive power under Article 162 of the Constitution, which power exclusively vests in the State Government alone. The fact remains that the direction issued in terms of impugned order dated 28.10.2020, on the face of it, collide with the dispensation specified in the Act of 2016 in the matter of determination of school fees and its binding effect on all concerned for a period of three academic years, without any exception. The fact that in the proceedings before the High Court the State Government had ratified the impugned order, does not take the matter any further. In that, there can be no ex post facto ratification by the State Government in respect of subject, on which, it itself could not issue such direction in law. 97. Even the exposition in Rai Sahib Ram Jawaya Kapur & Ors. vs. State of Punjab35 and Secretary, A.P.D. Jain Pathshala & Ors. vs. Shivaji Bhagwat More & Ors. 36 will not come to the aid of the respondents for the same reasons. Notably, not only the subject of finalisation of fee structure and the matters incidental thereto have been codified in the form of the Act of 2016, but also a law has been enacted to deal with the matters during the pandemic situation in the form of Central Act, namely, the Act of 2005 including the State legislation i.e., the Act of 2020. In fact, the State legislation deals with the subject of epidemic diseases and its management. Even those enactments do not vest any power in the State Government to issue direction with regard to commercial or economic aspects of matters between private parties with which the State has no direct causal connection, which we shall examine later at the appropriate place. In other words, the power of the State Government to deal with matters during the pandemic situation have already been delineated by the Parliament as well as the State legislature. 98. As such, it is not open to the State Government to issue directions in respect of commercial or economic aspects of legitimate subsisting contracts/transactions between two private parties with which the State has no direct causal connection, in the guise of management of pandemic situation or to provide “mitigation to one” of the two private parties “at the cost of the other”. This is akin to – rob Peter to pay Paul. It is a different matter, if as a policy, the State Government takes the responsibility to subsidise the school fees of students of private unaided schools, but cannot arrogate power to itself much less under Article 162 of the Constitution to issue impugned directions (to school Management to collect reduced school fee for the concerned academic year). We have no hesitation in observing that the asservation of the State Government of existence of power to issue directions even in respect of economic aspects of legitimate subsisting contracts/transactions between two private parties, if accepted in respect of fee structure of private unaided schools, is fraught with undefined infinite risk and uncertainty for the State. For, applying the same logic the State Government may have to assuage similar concerns in respect of other contractual matters or transactions between two private individuals in every aspect of life which may have bearing on right to life guaranteed under the Constitution. That would not only open pandora’s box, but also push the State Government to entertain demands including to grant subsidy, from different quarters and sections of the society in the name of mitigating measures making it financially impossible and unwieldy for the State and eventually burden the honest tax payers ­ who also deserve similar indulgence. Selective intervention of the State in response to such demands may also suffer from the vice of discrimination and also likely to impinge upon the rights of private individual(s) — the supplier of goods or service provider, as the case may be. The State cannot exercise executive power under Article 162 of the Constitution to denude the person offering service(s) or goods of his just claim to get fair compensation/cost from the recipient of such service(s) or goods, whence the State has no direct causal relationship therewith. 99. It is one thing to say that the State may regulate the fee structure of private unaided schools to ensure that the school Management does not indulge in profiteering and commercialisation, but in the guise of exercise of that power, it cannot transcend the line of regulation and impinge upon the autonomy of the school to fix and collect “just” and “permissible” school fees from its students. It is certainly not an essential commodity governed by the legislation such as Essential Commodities Act, 1955 empowering the State to fix tariff or price thereof. In light of consistent enunciation by this Court including the Constitution Bench, that determination of school fee structure (which includes reduction of fixed school fee for the relevant period) is the exclusive prerogative of the school Management running a private unaided school, it is not open to the Legislature to make a law touching upon that aspect except to provide statutory mechanism to regulate fees for ensuring that it does not result in profiteering and commercialisation by the school Management. Ex­ consequenti, the State Government also cannot exercise power under Article 162 of the Constitution in that regard. 100. Notably, the direction given in the impugned order to the school Management is to collect only specified percentage of annual tuition fees on the assumption that the schools will not be required to complete the course for the academic year 2020­21. This assumption has been rebutted by the appellants by relying on the instructions issued by the concerned Board indicating to the contrary. In any case, that does not extricate the school Management from incurring recurring capital and revenue expenditure including to pay their academic and non­academic staff their full salary and emoluments for the relevant period. For, no corresponding authority is given to the school Management to deduct suitable amount from their salaries. Thus, the effect of the impugned order is to reduce school fees determined under the Act in absence of authority to do so including under the Act of 2016. Further, on the face of it, the direction given is inconsistent with the provisions of the stated Act. To put it tersely, the impugned order issued is in respect of matters beyond the power of the State Government ­ to regulate the fee structure for ensuring that the school Management does not indulge in profiteering and commercialisation. Accordingly, the impugned order dated 28.10.2020 cannot be sustained even in reference to executive power under Article 162 of the Constitution. 101. Reverting to the provisions of the Act of 2005, no doubt Section 72 thereof predicates that the provisions of the Act will have overriding effect on other laws for the time being in force or anything inconsistent in any instrument having effect by virtue of any law other than the Act of 2005. This provision, however, would come into effect only if it is to be held that the Statutory Authorities under the Act of 2005 have power to deal with the subject of school fee structure of private unaided schools. 102. For that, we may usefully refer to Section 23 of the Act of 2005 which provides for the contents of the plan for disaster management to be prepared for every State called the State Disaster Management “23. State Plan.— (1) There shall be a plan for disaster management for every State to be called the State Disaster (2) The State Plan shall be prepared by the State Executive Committee having regard to the guidelines laid down by the National Authority and after such consultation with local authorities, district authorities and the people's representatives as the State Executive Committee may deem (3) The State Plan prepared by the State Executive Committee under sub­section (2) shall be approved by the (a) the vulnerability of different parts of the State to (b) the measures to be adopted for prevention and (c) the manner in which the mitigation measures shall be integrated with the development plans and projects; (d) the capacity­building and preparedness measures to (e) the roles and responsibilities of each Department of the Government of the State in relation to the measures specified in clauses (b), (c) and (d) above; (f) the roles and responsibilities of different Departments of the Government of the State in responding to any threatening disaster situation or disaster; (5) The State Plan shall be reviewed and updated annually. (6) Appropriate provisions shall be made by the State Government for financing for the measures to be carried out under the State Plan. (7) Copies of the State Plan referred to in sub­ sections (2) and (5) shall be made available to the Departments of the Government of the State and such Departments shall draw up their own plans in accordance with the State Plan.” 103. Going by the scheme of the Act of 2005, the State Authority established under Section 14 known as State Disaster Management Authority is expected to formulate policies and plans for disaster management in the State. Indeed, such policies and plans may include mitigation37 measures in respect of persons affected by disaster. The mitigation measures, however, are aimed merely for reducing the risk/impact or effects of a disaster or threatening disaster situation. Considering the sphere of functions of the State 37 Section 2(i) “mitigation” means measures aimed at reducing the risk, impact or effects of a disaster or threatening disaster situation; Authority including the State Executive Committee or different Authorities established at concerned level within the State, there is not even a tittle of indication that in the name of mitigating measures, the disaster management plan may comprehend issue of direction in respect of economic aspects of legitimate subsisting contracts or transactions between two private individuals with which the State has no direct causal relationship, and especially when the determination of compensation/cost/fees is the prerogative of the supplier or manufacturer of the goods or service provider of the services. The scheme of the Act of 2005 obligates the State Authority to assuage the concerns of the persons arising from “direct impact” of the disaster and to take mitigation measures to minimise the impact of such disaster and for that purpose, resort of capacity­building38 including of its own resources39 to wit, manpower, services, materials and provisions as noted in Section 2(p), and preparedness40 measures referred to in Section 2(m). It is 38 Section 2(b) “capacity­building” includes— (i) identification of existing resources and resources to be acquired or (ii) acquiring or creating resources identified under sub­clause (i); (iii) organisation and training of personnel and coordination of such training for 39 Section 2(p) “resources” includes manpower, services, materials and provisions; 40 Section 2(m) “preparedness” means the state of readiness to deal with a threatening disaster situation or disaster and the effects thereof; not possible to countenance the persuasive argument of the respondents that expansive meaning be assigned to the provisions of the Act of 2005 so as to include power to reduce school fees of private unaided school albeit fixed under the Act of 2016 and which by law is to remain in force until academic year 2020­21. 104. As is noticed from the preamble of the Act of 2005, it is to provide for the effective management of disasters and for matters connected therewith or incidental thereto. It extends to the whole of India. The Act is to establish Statutory Committees at different level for carrying out the purposes for which the Act has been enacted. It is essentially for effective management of disasters and for matters connected therewith or incidental thereto. The expression “disaster” has been defined in Section 2(d) of the Act of “2. Definitions.­ In this Act, unless the context otherwise (d) “disaster” means a catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or man made causes, or by accident or negligence which results in substantial loss of life or human suffering or damage to, and destruction of, property, or damage to, or degradation of, environment, and is of such a nature or magnitude as to be beyond the coping capacity of the community of the affected area;” 105. The Authorities created under the Act of 2005 are expected to deal with matters concerning the disaster management. The expression “disaster management” has been defined as follows: “2. Definitions.­ In this Act, unless the context otherwise (e) “disaster management” means a continuous and integrated process of planning, organising, coordinating and implementing measures which are necessary or expedient for (i) prevention of danger or threat of any disaster; (ii) mitigation or reduction of risk of any disaster or its (iv) preparedness to deal with any disaster; (v) prompt response to any threatening disaster situation or (vi) assessing the severity or magnitude of effects of any (viii) rehabilitation and reconstruction;” 106. It is also useful to advert to Section 18 of the Act of 2005 which provides for powers and functions of State Authority established under Section 14 consisting of Chief Minister of the State, who acts as Chairperson (Ex officio) and other Chairpersons of the respective Authorities. Section 18 reads thus: “18. Powers and functions of State Authority.— (1) Subject to the provisions of this Act, a State Authority shall have the responsibility for laying down policies and plans for disaster management in the State. (2) Without prejudice to the generality of provisions contained in sub­section (1), the State Authority may— (a) lay down the State disaster management policy; (b) approve the State Plan in accordance with the guidelines laid down by the National Authority; (c) approve the disaster management plans prepared by the departments of the Government of the State; (d) lay down guidelines to be followed by the departments of the Government of the State for the purposes of integration of measures for prevention of disasters and mitigation in their development plans and projects and provide necessary technical assistance (e) coordinate the implementation of the State Plan; (f) recommend provision of funds for mitigation and (g) review the development plans of the different departments of the State and ensure that prevention and mitigation measures are integrated therein; (h) review the measures being taken for mitigation, capacity building and preparedness by the departments of the Government of the State and issue such guidelines as may be necessary. (3) The Chairperson of the State Authority shall, in the case of emergency, have power to exercise all or any of the powers of the State Authority but the exercise of such powers shall be subject to ex post facto ratification of the State Authority.” 107. The obligation of the State Government for the purpose of disaster management can be culled out from Section 38, which “38. State Government to take measures.— (1) Subject to the provisions of this Act, each State Government shall take all measures specified in the guidelines laid down by the National Authority and such further measures as it deems necessary or expedient, for the purpose of disaster management. (2) The measures which the State Government may take under sub­section (1) include measures with respect to all or (a) coordination of actions of different departments of the Government of the State, the State Authority, District Authorities, local authority and other non­ (b) cooperation and assistance in the disaster management to the National Authority and National Executive Committee, the State Authority and the State Executive Committee, and the District Authorities; (c) cooperation with, and assistance to, the Ministries or Departments of the Government of India in disaster management, as requested by them or otherwise (d) allocation of funds for measures for prevention of disaster, mitigation, capacity­building and preparedness by the departments of the Government of the State in accordance with the provisions of the State Plan and the (e) ensure that the integration of measures for prevention of disaster or mitigation by the departments of the Government of the State in their development (f) integrate in the State development plan, measures to reduce or mitigate the vulnerability of different parts of (g) ensure the preparation of disaster management plans by different departments of the State in accordance with the guidelines laid down by the National Authority and (h) establishment of adequate warning systems up to (i) ensure that different departments of the Government of the State and the District Authorities take (j) ensure that in a threatening disaster situation or disaster, the resources of different departments of the Government of the State are made available to the National Executive Committee or the State Executive Committee or the District Authorities, as the case may be, for the purposes of effective response, rescue and relief in any threatening disaster situation or disaster; (k) provide rehabilitation and reconstruction assistance (l) such other matters as it deems necessary or expedient for the purpose of securing effective implementation of provisions of this Act.” 108. The corresponding responsibilities of departments of the State Government have been delineated in Section 39, which reads thus: “39. Responsibilities of departments of the State Government.— It shall be the responsibility of every department of the Government of a State to— (a) take measures necessary for prevention of disasters, mitigation, preparedness and capacity building in accordance with the guidelines laid down by the National Authority and the State Authority; (b) integrate into its development plans and projects, the measures for prevention of disaster and mitigation; (c) allocate funds for prevention of disaster, mitigation, (d) respond effectively and promptly to any threatening disaster situation or disaster in accordance with the State Plan, and in accordance with the guidelines or directions of the National Executive Committee and the (e) review the enactments administered by it, its policies, rules and regulations with a view to incorporate therein the provisions necessary for prevention of disasters, (f) provide assistance, as required, by the National Executive Committee, the State Executive Committee (i) drawing up mitigation, preparedness and response plans, capacity­building, data collection and identification and training of personnel in relation to (ii) assessing the damage from any disaster; (iii) carrying out rehabilitation and reconstruction; (g) make provision for resources in consultation with the State Authority for the implementation of the District Plan by its authorities at the district level; (h) make available its resources to the National Executive Committee or the State Executive Committee or the District Authorities for the purposes of responding promptly and effectively to any disaster in (i) providing emergency communication with a (ii) transporting personnel and relief goods to and from (iii) providing evacuation, rescue, temporary shelter or (iv) carrying out evacuation of persons or live­stock from an area of any threatening disaster situation or (v) setting up temporary bridges, jetties and landing (vi) providing drinking water, essential provisions, healthcare and services in an affected area; (i) such other actions as may be necessary for disaster management.” 109. The State Executive Committee constituted under the Act of 2005 vide Section 20 is obligated to discharge the functions delineated in Section 22 of the Act. The same reads thus: “22. Functions of the State Executive Committee.— (1) The State Executive Committee shall have the responsibility for implementing the National Plan and State Plan and act as the coordinating and monitoring body for management of disaster in the State. (2) Without prejudice to the generality of the provisions of sub­section (1), the State Executive Committee may— (a) coordinate and monitor the implementation of the National Policy, the National Plan and the State Plan; (b) examine the vulnerability of different parts of the State to different forms of disasters and specify measures to be taken for their prevention or mitigation; (c) lay down guidelines for preparation of disaster management plans by the departments of the Government of the State and the District Authorities; (d) monitor the implementation of disaster management plans prepared by the departments of the Government (e) monitor the implementation of the guidelines laid down by the State Authority for integrating of measures for prevention of disasters and mitigation by the departments in their development plans and projects; (f) evaluate preparedness at all governmental or non­ governmental levels to respond to any threatening disaster situation or disaster and give directions, where necessary, for enhancing such preparedness; (g) coordinate response in the event of any threatening (h) give directions to any Department of the Government of the State or any other authority or body in the State regarding actions to be taken in response to any threatening disaster situation or disaster; (i) promote general education, awareness and community training in regard to the forms of disasters to which different parts of the State are vulnerable and the measures that may be taken by such community to prevent the disaster, mitigate and respond to such (j) advise, assist and coordinate the activities of the Departments of the Government of the State, District Authorities, statutory bodies and other governmental and non­governmental organisations engaged in (k) provide necessary technical assistance or give advice to District Authorities and local authorities for carrying (l) advise the State Government regarding all financial matters in relation to disaster management; (m) examine the construction, in any local area in the State and, if it is of the opinion that the standards laid for such construction for the prevention of disaster is not being or has not been followed, may direct the District Authority or the local authority, as the case may be, to take such action as may be necessary to secure (n) provide information to the National Authority relating to different aspects of disaster management; (o) lay down, review and update State level response plans and guidelines and ensure that the district level plans are prepared, reviewed and updated; (p) ensure that communication systems are in order and the disaster management drills are carried out (q) perform such other functions as may be assigned to it by the State Authority or as it may consider necessary.” 110. Having regard to the purport of the Act of 2005, it is unfathomable as to how the State Authorities established under the stated Act can arrogate unto themselves power to issue directions to private parties on economic aspects of legitimate subsisting contractual matters or transactions between them inter se. In any case, the impugned order has not been issued by the State Authority referred to in the Act of 2005. It is not enough to say that the same was issued under the directions of the Chief Minister of the State. For, the Chief Minister is only the Chairperson (Ex officio) of the State Disaster Management Authority established under Section 14 of the Act of 2005. Suffice it to observe that there is no provision in the Act of 2005 which concerns or governs the subject of interdicting the school fee structure fixed under the Act of 2016. 111. Section 72 of the Act of 2005 was pressed into service. However, that cannot be the basis to justify the impugned order dated 28.10.2020. Section 72 reads thus: “72. Act to have overriding effect.— The provisions of this Act, shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.” The Act of 2005 is not a panacea for all difficulties much less not concerning disaster management [Section 2(e)] as such. As noted earlier, there is no express provision in the Act of 2005 which empowers the Director, Secondary Education (or the State Government) to issue order and directions in respect of school fee structure because of the pandemic situation. 112. For the same reasons, reliance placed on the provisions of the State legislation, namely, the Act of 2020 dealing with epidemic diseases will be of no avail to justify the impugned order dated 28.10.2020 issued by the Director, Secondary Education. The power to take special measures and specify regulation as to epidemic disease can be exercised by the State Government under Section 4 of the Act of 2020. Section 4 reads thus: “4. Power to take special measures and specify regulations as to epidemic disease.— (1) When at any time the Government is satisfied that the State or any part thereof is visited by or threatened with an outbreak of any epidemic disease, the Government may take such measures, as it deems necessary for the purpose, by notification in the Official Gazette, specify such temporary regulations or orders to be observed by the public or by any person or class of persons so as to prevent the outbreak of such epidemic disease or the spread thereof and require or empower District Collectors to exercise such powers and duties as may be specified in the said regulations or orders. (2) In particular and without prejudice to the generality of the foregoing provisions, the Government may take (a) to prohibit any usage or act which the Government considers sufficient to spread or transmit epidemic diseases from person to person in any gathering, celebration, worship or other such activities within the (b) to inspect the persons arriving in the State by air, rail, road or any other means or in quarantine or in isolation, as the case may be, in hospital, temporary accommodation, home or otherwise of persons suspected of being infected with any such disease by the officer authorized in the regulation or orders; (c) to seal State Borders for such period as may be (d) to impose restrictions on the operation of public and (e) to prescribe social distancing norms or any other instructions for the public to observe that are considered necessary for public health and safety on (f) to restrict or prohibit congregation of persons in public places and religious institutions or places of (g) to regulate or restrict the functioning of offices, Government and private and educational institutions in (h) to impose prohibition or restrictions on the functioning of shops and commercial and other offices, establishments, factories, workshops and godowns; (i) to restrict duration of services in essential or emergency services such as banks, media, health care, food supply, electricity, water, fuel etc.; and (j) such other measures as may be necessary for the regulation and prevention of epidemic diseases as decided by the Government.” The measures enunciated in Section 4 of the Act of 2020 in no way deal with the “tariffs” of air, rail, road, hospital, temporary accommodation. It only enables the Authority to prohibit any usage or activities which the Government considers sufficient to spread or transmit epidemic diseases and for that purpose to inspect various places suspected of being infected with such diseases. Indeed, it can regulate or restrict the functioning of offices, Government and private and educational institutions in the State. That, however, would be only in respect of manner of its use and its timings including to observe standard operating procedures to ensure that epidemic diseases do not transmit or spread on account of activities carried out therein. That power to regulate cannot be invoked to control the tariffs, fees or cost of goods and services and in particular economic aspects of contractual matters between two private parties or so to say school fees of private unaided schools. Accordingly, even the last point urged by the State to justify the impugned order dated 28.10.2020 falls to the ground. 113. A priori, it must follow that the Director, Secondary Education had no authority whatsoever to issue direction in respect of fee structure determined under the Act of 2016 including to reduce the same for the academic year 2020­21 in respect of private unaided schools. Having failed to trace the legitimate source of power under which the directions have been issued, as aforesaid, the respondents ­ State Authorities cannot fall back upon the benign hope expressed by the High Court to do the needful in the backdrop of the representations made by several parents about the difficulties encountered by them due to pandemic situation. It would have been a different matter if the Director, Secondary Education had used his good offices to impress upon the school management(s) of the concerned school(s) to explore the mitigating measures/options on their own for the academic year 2020­21 and to give concession to their students to the extent possible at least in respect of unutilised facilities and savings on overheads by the school Management in that behalf or to give concession in the form of scholarship to deserving students. It is stated by the appellants that the school Management on their own had offered scholarship of 25 per cent of the annual fee to their students. In other words, the Director, Secondary Education could have mediated between the Association of the school Management and representatives of the Parent­Teachers Association for arriving at an amicable solution due to pandemic situation for the academic year 2020­21, on humanitarian grounds, but could not issue the impugned order when even the State had no power to issue the same. 114. Accordingly, the appellants are justified in assailing the order dated 28.10.2020 issued by the Director, Secondary Education and must succeed. However, that does not give licence to the appellants to be rigid and not be sensitive about aftermath of pandemic. The school Management supposedly engaged in doing charitable activity of imparting education, is expected to be responsive and alive to that situation and take necessary remedial measures to mitigate the hardship suffered by the students and their parents. It is for the school Management to reschedule payment of school fee in such a way that not even a single student is left out or denied opportunity of pursuing his/her education, so as to effectuate the adage “live and let live”. 115. In law, the school Management cannot be heard to collect fees in respect of activities and facilities which are, in fact, not provided to or availed by its students due to circumstances beyond their control. Demanding fees even in respect of overheads on such activities would be nothing short of indulging in profiteering and commercialisation. It is a well­known fact and judicial notice can also be taken that, due to complete lockdown the schools were not allowed to open for substantially long period during the academic year 2020­21. Resultantly, the school Management must have saved overheads and recurring cost on various items such as petrol/diesel, electricity, maintenance cost, water charges, stationery charges, etc. Indeed, overheads and operational cost so saved would be nothing, but an amount undeservedly earned by the school without offering such facilities to the students during the relevant period. Being fee, the principle of quid pro quo must come into play. However, no accurate (factual) empirical data has been furnished by either side about the extent to which such saving has been or could have been made or benefit derived by the school Management. Without insisting for mathematical exactitude approach, we would assume that the school Management(s) must have saved around 15 per cent of the annual school fees fixed by the school/adjudicated by the Statutory Regulatory Authorities for the relevant period. 116. At this stage, we must advert to the stand taken by the learned counsel for the appellants that the appellants would be content with the interim order passed by this Court on 08.02.2021, being confirmed as a final order. This suggestion is indeed attractive, but that arrangement does not provision for the amounts saved by the school Management towards unspent overheads/expenses in respect of facilities not utilised or could not be offered by the school Management to the students due to lockdown situation. As aforesaid, we would assume that at least 15 per cent of the annual school fees would be towards overheads/expenses saved by the school Management. Arguendo, this assumption is on the higher side than the actual savings by the school Management of private unaided schools, yet we are inclined to fix that percentage because the educational institutions are engaged in doing charitable activity of imparting and spreading education and not make money. That they must willingly and proactively do. Hence, collection of commensurate amount (15 per cent of the annual school fees for academic year 2020­2021), would be a case of profiteering and commercialisation by the school 117. Ordinarily, we would have thought it appropriate to relegate the parties before the Regulatory Authority to refix the school fees for the academic year 2020­21 after taking into account all aspects of the matter including the advantage gained by the school Management due to unspent overheads/expenses in respect of facilities not availed by the students. However, that course can be obviated by the arrangement that we propose to direct in terms of this judgment. To avoid multiplicity of proceedings (as school fee structure is linked to school — school wise) including uncertainty of legal processes by over 36,000 schools in determination of annual fee structure for the academic year 2020­21, as a one­time measure to do complete justice between the parties, we propose to issue (i) The appellants (school Management of the concerned private unaided school) shall collect annual school fees from their students as fixed under the Act of 2016 for the academic year 2019­20, but by providing deduction of 15 per cent on that amount in lieu of unutilised facilities by the students during the relevant period of academic year 2020­21. (ii) The amount so payable by the concerned students be paid in six equal monthly instalments before 05.08.2021 as noted in our order dated (iii) Regardless of the above, it will be open to the appellants (concerned schools) to give further concession to their students or to evolve a different pattern for giving concession over and above those noted in clauses (i) and (ii) above. (iv) The school Management shall not debar any student from attending either online classes or physical classes on account of non­payment of fees, arrears/outstanding fees including the installments, referred to above, and shall not withhold the results of the examinations of any student on that account. (v) If any individual request is made by the parent/ward finding it difficult to remit annual fees for the academic year 2020­21 in the above terms, the school Management to consider such representation on case­to­case basis sympathetically. (vi) The above arrangement will not affect collection of fees for the academic year 2021­22, as is payable by the students of the concerned school as and when it becomes due and payable. (vii) The school Management shall not withhold the name of any student/candidate for the ensuing Board examinations for Classes X and XII on the ground of non­payment of fee/arrears for the academic year 2020­21, if any, on obtaining undertaking of the concerned parents/students. 118. We are conscious of the fact that we are issuing general uniform direction of deduction of 15 per cent of the annual school fees in lieu of unutilised facilities/activities and not on the basis of actual data school­wise. As aforesaid, we have chosen to do so with a view to obviate avoidable litigation and to give finality to the issue of determination and collection of school fees for the academic year 2020­21, as a one­time measure which is the subject matter of these appeals. We have consciously limited the quantum of deduction from annual school fees to 15 per cent although the school Management had mentioned about its willingness to provide 25 per cent scholarship to deserving students, as we have compelled the school Management to collect annual school fees for the academic year 2020­21 as was fixed for the academic year 2019­20 on which some of the school Management(s) could have legitimately asked for increase of at least 10 per cent in terms of Section 6(5) of the Act of 2016. 119. As we are disposing of the appeals in terms of this judgment, the contempt petition(s) filed before the High Court on the basis of impugned judgment also need to be disposed of. Accordingly, we deem it appropriate to dispose of all the contempt petition(s) initiated in reference to the impugned judgment, as the same is being overturned by this decision. 120. While parting, we must note that the respondent­State of Rajasthan has moved a formal application for recall/modification of direction given in clause (g) of the order of this Court dated 08.02.2021 — to ensure payment of outstanding dues towards unit cost payable to respective unaided schools within specified time. It is urged that due to complexity of facts, it was not possible to complete the process of computation before 31.03.2021. In the first place, there is no question of recall or modification of that direction. We were conscious of the fact that that is not the subject matter of the appeals before this Court. Nevertheless, such direction was issued taking into account totality of the situation and to give relief to the private unaided schools by directing the State of Rajasthan to discharge its statutory obligation within specified time, of paying the outstanding dues of the concerned private unaided schools towards unit cost. Accordingly, we reiterate that direction but give further time to the State Government to complete the process of calculation and disbursal of the outstanding amount payable towards unit cost to the concerned unaided schools in the State of Rajasthan before the end of July 2021. The outstanding dues to be paid in terms of this direction would be obviously in respect of academic year upto 2020­21. 121. We must also note that we have not dilated on each of the reported decisions relied upon by the parties, as it is not necessary to do so for the view taken by us. For, there is nothing inconsistent in those decisions. (a) we dispose of the first set of appeals challenging the validity of the Act of 2016 and the Rules framed thereunder with observations and the conclusion recorded in paragraph 52 above by reading down Sections 4, 7 and 10 of the Act and direct that henceforth the same be applied in conformity with the law declared in this judgment. (b) The second set of appeals, however, are allowed in the above terms including mentioned in paragraph 117. The impugned judgment and order of the High Court dated 18.12.2020 is quashed and set aside. Instead, the intra­court appeals preferred by the appellants questioning the decision of the learned Single Judge and the writ petitions filed before the High Court to assail the impugned order dated 28.10.2020, shall stand disposed of in terms of this judgment. (c) The contempt petition(s) pending before the High Court in connection with the subject matter of these appeals also stand disposed of. No order as to costs. Pending applications, if any, also stand disposed of.
The Supreme Court decided that if schools ask for money for things students didn't use during the lockdown, like certain facilities or activities, it's like "making too much money" and "treating education like a business." The Supreme Court understood that since classes were online last school year, schools saved money on things like running costs and other expenses. The Court figured schools saved at least 15% this way. Because of these savings, schools must reduce their yearly fees by that much. The Court stated schools "should willingly and actively" lower fees. The Court based its decision on past rulings, like those in cases such as TMA Pai and PA Inamdar. These past cases said that schools' fees should match the services they provide. Schools should not "make too much money" or "treat education like a business." The Court said private schools can set their own fees, but only if they don't "profiteer" or "commercialize." The government can make rules to stop schools from doing this. The Court stated that collecting more money than allowed would be considered "profiteering" and "commercialization." Justices AM Khanwilkar and Dinesh Maheshwari were the judges who made this important decision in a case called Indian School, Jodhpur vs. State of Rajasthan. They were looking at many challenges to an order from the Rajasthan government. This order had allowed CBSE schools in the state to collect only 70% of the yearly fees, and state board schools to collect only 60%. The Supreme Court partly agreed with the schools' request. It said schools could collect their yearly tuition fees, but only after lowering them by 15% to account for the money saved on running costs and other expenses. The Court also allowed parents to pay the fees in six monthly payments. The relevant observations made in the judgment(paragraphs 116 and 117) are : The Court said that schools legally cannot charge money for activities and facilities that students didn't use or get because of things outside their control. Asking for fees, even for the costs of running such activities, would be pure "profiteering" or "treating education like a business." It's well-known, and the Court recognized, that schools were closed for a long time during the 2020-21 school year because of the lockdown. This means school managements must have saved money on running costs and regular expenses for things like fuel, electricity, maintenance, water, and school supplies. The Court added that the money schools saved on running costs and expenses was money they didn't earn fairly. This is because they didn't provide those services to students during that time. For fees, the idea of "something for something" (quid pro quo) must apply. However, neither side gave exact information about how much schools saved or could have saved. Without needing a perfectly precise number, the Court estimated that schools must have saved about 15% of the yearly fees, which are either set by the school or by official regulators for that time. The Court said it would assume that at least 15% of the yearly school fees covered running costs and expenses that schools saved. Even if this amount is more than what private schools actually saved, the Court still set this percentage. This is because schools are meant to be charity organizations that provide education, not businesses that make money. Schools should do this willingly. So, collecting this extra 15% of the yearly fees for the 2020-2021 school year would be seen as "profiteering" and "treating education like a business" by the school management. Schools must be responsive to the hardships faced by students and parents The Court further observed : School managements, who are supposed to be doing charity work by providing education, should understand the difficult situation. They should take steps to lessen the problems faced by students and their parents. It is up to the school management to change the fee payment schedule so that no student is left out or prevented from continuing their education. This helps make the idea of "live and let live" a reality. While the Court let schools charge 85% of the yearly fees, it also ordered that no student should be stopped from attending online or in-person classes for not paying fees. This includes any unpaid past fees or installments. Schools also cannot hold back a student's exam results because of unpaid fees. If a parent or guardian asks for help because they find it hard to pay the yearly fees for the 2020-21 school year, the school management must consider each request kindly. School managements cannot keep any student's name from being sent for the upcoming Class 10 and 12 Board exams because of unpaid fees from the 2020-21 school year. This is true if the parents or students give a promise to pay later.
1. These two sets of appeals are being disposed of by this common judgment. 2. In the first set of appeals, six appeals1 emanate from common judgment and order dated 14.08.2019 passed by the High Court of 1 arising out of SLP (C) No. 27881 of 2019; SLP (C) Nos.27907­27916 of 2019; SLP (C) No. 27987 of 2019; SLP (C) No. 2942 of 2020; SLP (C) No. 5902 of 2020; and SLP (C) No …………. of 2021 @ Diary No(s). 6803 of 2020; Judicature for Rajasthan at Jodhpur and two other appeals 2 against the judgment and order dated 11.02.2020 of the Jaipur Bench of the same High Court, which followed the earlier decision of the Jodhpur seat referred to above. In these matters, the appellants (Management(s) of private unaided schools in the State of Rajasthan) had assailed the validity of the Rajasthan Schools (Regulation of Fee) Act, 20163, in particular Sections 3, 4, 6 to 11, 15 and 16 and the Rules framed thereunder titled Rajasthan Schools (Regulation of Fee) Rules, 2017 4, in particular Rules 3, 4, 6 to 8 and 11 thereof being ultra vires the Constitution and abridge the fundamental right guaranteed under Article 19(1)(g) of the Constitution of India. 3. In the second set of appeals, four appeals5, also filed by the Management(s) of private unaided schools in the State of Rajasthan, emanate from the common judgment and order dated 18.12.2020 of the same High Court. In these appeals, the challenge is to the orders passed by the State Authorities on 09.04.2020, 07.07.2020 2 arising out of SLP (C) Nos. 5470 and 5589 of 2020 3 for short, “the Act of 2016” 4 for short, “the Rules of 2017” 5 arising out of SLP (C) No …………. of 2021 @ Diary No(s). 44 of 2021; SLP (C) No. 431 of 2021; SLP (C) Nos. 577­579 of 2021; and SLP (C) No. 2494 of 2021 and 28.10.2020 regarding deferment of collection of school fees including reduction of fees limited to 70 per cent of tuition fees by schools affiliated with the Central Board of Secondary Education and 60 per cent from the schools affiliated with Rajasthan Board of Secondary Education, in view of reduction of syllabus by the respective­Boards due to aftermath of pandemic (lockdown) from 4. The issues involved in all these appeals concern around 36,000 private unaided schools including 220 minority private unaided schools in the State of Rajasthan governed by the provisions of the Act of 2016 referred to above. Accordingly, all these appeals were clubbed and heard analogously. However, as aforesaid, two broad issues would arise for our consideration. 5. Reverting to the first set of appeals, the challenge is to the provisions of the Act of 2016 and Rules of 2017 being violative of rights guaranteed under Article 19(1)(g) of the Constitution to carry on occupation of imparting education which includes autonomy to determine the school fees by the Managements of private unaided schools. It is urged that any restriction imposed in that regard would be arbitrary and unreasonable. Further, the impugned provisions inevitably limit the autonomy of the school Management of private unaided schools to the level of merely proposing the school fees to the School Level Fee Committee 6, in which the Management has only one representative as against eight others i.e., five parents, three teachers and one principal. This imbalance in the constitution of the SLFC negates the effective control of the Management in the affairs of the school and in particular the autonomy to determine its own school fees. Notably, five parents, who are appointed as members of the SLFC are chosen by draw of lots from amongst the willing parents of the wards pursuing education in the schools concerned and could include even the wards who are availing free education under the Right of Children to Free and Compulsory Education Act, 20097. In fact, the latter have no stakes in the matter of determination of school fees. As the willing parents are selected by lottery system, in the process even the person who has no modicum of knowledge of development of a 6 for short, “the SLFC” 7 for short, “the RTE Act” school, management of finances and dynamics of quality education, would become part of the process of determination of school fees. The members of the SLFC would inevitably have conflicting interest. They would be interested in ensuring that minimum school fee is finalised. The nominated teachers may constantly seek favour of the Management by exploiting their position as member of the SLFC. In the process, an environment of constant difference of opinion would prevail between the school Management on one side and the parents of the wards and teachers, who would form part of the SLFC. Pertinently, the provisions of the impugned Act of 2016 give authority to the SLFC to override the proposal of the school Management in the matter of school fees to be collected from the wards during the relevant period. Effectively, the parents who are members of the SLFC, would control the decision­making process impacting the autonomy of the school Management in regard to determination of school fees, guaranteed under Article 19(1)(g) of the Constitution. The parents­teachers duo who are part of the SLFC would have no intention or motivation to create new facilities or commitment to develop the school towards excellence. Moreover, they would not be accountable for anything that finally impacts the quality of education in the school concerned. It is only the school Management who would be held accountable in that regard, whilst school Management is denuded of its autonomy to determine school fees. The school fees so determined by the SLFC as per the provisions of the impugned Act of 2016, would remain unchanged and binding for next three years with no provision for increase in case of contingency of funds needed for new development or general inflation or hike in salary and wages of staff or any other legitimate purpose. 6. The impugned Act of 2016 also gives wide powers to the Divisional Fee Regulatory Committee8 and Revision Committee including power to issue summons, search, seizure and penalties as if the occupation of imparting education is akin to res extra commercium. The school Management­appellants apprehend that dispute with regard to determination of school fees would be endless and get embroiled in the process of appeal, revision and judicial proceedings. Resultantly, schools would suffer uncertainty in financial matters. Furthermore, there is no mechanism provided to guarantee the recovery of school fees after it is finally determined 8 for short, “the DFRC” under the Act of 2016. The working of the impugned Act of 2016 would eventually stifle the growth and development of the private unaided schools and that all schools — small and big, would be treated equally with same measure, which would be arbitrary and discriminatory and against the principle expounded by this Court that the school fees of private unaided schools should be school­ based and not a rigid or uniform arrangement. According to the appellants, the factors enumerated for determination of school fees are vague, subjective and irrelevant. The crucial factors such as for making a good school are not even adverted to in Section 8 of the impugned Act of 2016. The process of determination of school fees is a dynamic exercise and could be effectively done by the school Management on its own while keeping in mind that establishing a school is essentially a charity. According to the appellants, the provisions of the impugned Act of 2016 are unworkable and violate the fundamental right guaranteed under Article 19(1)(g) of the Constitution. The State can only regulate the fees determined by the private unaided schools only if it shows that the same entails in profiteering or capitation, which is prohibited by law. 7. It is urged that by now it is well­established that the private unaided schools ought to have maximum autonomy with regard to administration including the right of appointment, disciplinary powers, admission of students and the “fees to be charged” as expounded by this Court in T.M.A. Pai Foundation & Ors. vs. State of Karnataka & Ors.9. The Court noted that it is in the interests of the general public that more good quality schools are established. Autonomy and non­regulation of the school administration in matters referred to above will ensure that more such institutions are established. This view has been restated in Society for Unaided Private Schools of Rajasthan vs. Union of 8. According to the appellants, the activities of school level education are qualitatively different from that of professional level education. The determination of school fees, therefore, stands on a totally different footing than determination of fees for professional colleges for medicine etc. The impugned Act of 2016 falls foul of doctrine of proportionality — as restrictions imposed on the school Management in respect of determination of school fees have no cogent nexus/object sought to be achieved. 9. It is lastly urged that the legislative field regarding regulation of school fees is already occupied by the law made by the Parliament being the RTE Act 11 and the Rules12 framed thereunder. Hence, it was not open to the State legislature to enact a law on the same subject. 10. These points were urged even before the High Court at the instance of the appellants. The respondent­State countered the same on the argument that the impugned Act of 2016 was in the nature of a regulatory law, with complete autonomy to the school Management to decide about its fee structure which, however, could be given effect to upon approval given by the SLFC. The SLFC consists of not only parents of wards, but also the school Management and their representatives in the form of teachers. It ensures participation of all the stakeholders and democratisation of the decision­making process. The proposal of the school Management, if found to be in order, is generally approved and it is 12 The Right of Children to Free and Compulsory Education Rules, 2010 (Rules 12, 15 open to the SLFC to give counter suggestion which if acceptable to the school Management can be acted upon by it. In case there is a difference of opinion, only then the matter goes for adjudication of the rival claims before the DFRC and the decision of that Authority becomes binding on the parties. Further, the school Management, the SLFC as well as the Adjudicatory­cum­Regulatory Authority, each one of them is guided by the principles and factors delineated in Section 8 of the Act of 2016 and Rule 10 of the Rules of 2017 in the matter of determination of school fees. Such external regulation for fee fixation has been recognised and approved by this Court in successive decisions viz., Islamic Academy of Education & Anr. vs. State of Karnataka & Ors.13, P.A. Inamdar & Ors. vs. State of Maharashtra & Ors.14, Modern School vs. Union of India & Ors.15, Action Committee, Unaided Private Schools & Ors. vs. Director of Education, Delhi & Ors. 16 and Modern Dental College and Research Centre & Ors. vs. State of Madhya Pradesh & Ors.17. According to the respondent­State, the setting up of External Fee Regulatory Authority is consistent with the jurisprudential exposition of this Court and held not to be violative of Article 19(1)(g) or Article 30 of the Constitution of India. According to the State, there is no ambiguity in the provisions of the Act of 2016. In that, the principles enunciated in the statutory provisions under consideration are not irrelevant or irrational as suggested by the appellants. 11. The respondent­State has also refuted the challenge to the impugned Act of 2016 merely on the basis of its nomenclature. According to the State, non­mentioning of the words prevention of profiteering and charging of capitation fee in the impugned Act of 2016, does not ipso facto make the same constitutionally suspect. It is urged that a Constitution Bench of this Court in Modern Dental College and Research Centre (supra) has upheld the validity of identical provisions enacted by the State of Madhya Pradesh in relation to fixation of fee by external committees and, therefore, the challenge set up by the appellants cannot be countenanced. 12. The respondent­State would urge that the High Court in the impugned judgment after adverting to the exposition of different Constitution Benches of this Court, justly concluded that the impugned Act of 2016 did not violate Article 19(1)(g) of the Constitution as the right flowing therefrom was not an absolute fundamental right. Further, there is no substance in the grounds set forth to assail the validity of the impugned Act of 2016. 13. The High Court did advert to these arguments canvassed by both sides and eventually dismissed the challenge to the validity of the impugned Act of 2016 vide common judgment and order dated 14.08.2019. The High Court after adverting to the exposition in T.M.A. Pai Foundation (supra), Islamic Academy of Education (supra), Modern School (supra) and Modern Dental College and Research Centre (supra), proceeded to dismiss the writ petitions by “19. Therefore, in the backdrop of law laid down by Constitution Bench in Modern Dental College & Research Centre (supra), if the impugned Act and the provisions sought to be assailed by the petitioners and the regulatory measures provided under the Rules are examined objectively with pragmatic approach, then, it would ipso facto reveal that State has not made any endeavour to trench into autonomy of petitioner­institutions. The provisions are regulatory in nature with the solemn object of preventing profiteering and commercialization in school education. The constitution of the Committee for regulating fee structure, by no stretch of imagination be construed as an attempt to completely bye­pass the school management. The Committee as such is chaired by representative of the management besides principal as a Secretary with three teachers nominated by the management and five parents nominated from parent teachers association. Thus, the contention of the petitioners that State has completely chipped the wings of management or invaded their autonomy is an euphonious plea bereft of any merit. The criteria for determining fee are also based on legitimate considerations provided under Section 8 of the Act. Thus, even while considering fee structure of the school, the Committee cannot be allowed to act at its whims and fancy but for adhering to the criteria laid down under Section 8 of the Act. That apart, the remedy against the fee determined by the Committee is also provided in the Statute by way of appeal/reference and second appeal, which sufficiently repudiate the contention of the petitioners about unreasonable restrictions on their autonomy within the mischief of unacceptable constraints envisaged under clause (6) of Article 19 of the Constitution. 20. Switching on to the coercive measures and penal provisions provided under the Statute and enforcement methodology prescribed under the Rules, it would be just and appropriate to observe that all these provisions are essential and necessary concomitant of regulatory mechanism for achieving desired objectives, and therefore cannot be categorized as unreasonable restrictions. In the overall scenario, we are also convinced that Sections 13 to 18 of the impugned Act and Rule 11 of the Rules are not intended to be invoked on sundry occasions for interfering with day to day functioning of the unaided recognized schools. Thus, complaint of the petitioners about fanciful and capricious supplication of these provisions per se appears to be a far cry without any substance. Indisputably, the Rules are in the nature of subordinate legislation and framed by the Government in exercise of power under Section 19 of the Act for carrying out all or any of the purposes of the Act. Thus, the Rules as such are neither assailable on the ground of lack of legislative competence, nor for failure to conform to the parent statute under which Rules are made. Moreover, these rules are also not offending any right conferred on the petitioners under Part III of the Constitution or in violation of any provision of the Constitution, therefore, challenge to the Rules is wholly unsustainable. 21. The argument of the learned counsel for the petitioners, that the impugned Act is unconstitutional as being in derogation to Article 13(2) of the Constitution, appears to be quite alluring but of no substance. Analyzing this argument meticulously in the backdrop of lis involved in these matters, we have already repudiated the same. At the cost of repetition, we may reiterate here that the impugned Act and its other provisions are not taking away or abridges rights of the petitioners conferred by Part III of the Constitution. We may hasten to add that entire edifice of challenge in these petitions is alleged infraction of Article 19(1)(g) of the Constitution, which indisputably is not an absolute fundamental right. As observed hereinabove, the said fundamental right is subject to reasonable restrictions and such restrictions are permissible as they are aimed at seeking laudable objectives in the larger public interest. Therefore, viewed from any angle, the impugned provisions of the Act as well as Rules are intra­vires of the Constitution not being in violation of Article 13(2) and 19(1)(g) of the The upshot of above discussion is that all these petitions fail and are hereby dismissed. The stay petitions are also dismissed and interim order passed on 9th of April, 2018 is vacated.” 14. We have heard Mr. Pallav Shishodia, learned senior counsel for the appellants, Dr. Manish Singhvi and Mr. Devadatt Kamat, learned senior counsel for the State of Rajasthan. 15. After cogitating over the rival arguments and considering the impugned judgment, we have no hesitation in observing that although the High Court was right in its conclusion, it has disposed of the challenge to the validity of different provisions of the impugned Act of 2016 and the Rules framed thereunder in a summary manner. We agree that merely adverting to the decisions of this Court was not enough. The High Court should have then analysed the challenge to the respective provisions and also the overall scheme of the Act of 2016. Ordinarily, we would have relegated the parties before the High Court for reconsideration of the entire matter afresh. However, considering the nature of issues raised and the concerns expressed by the parties, we proceed to address the challenge to the relevant provisions of the Act of 2016 in this judgment itself. 16. Indeed, a Constitution Bench of this Court in T.M.A. Pai Foundation (supra) has expounded that the private unaided school management must have absolute autonomy to determine the school fees. But at the same time the consistent view of this Court has been restated and enunciated by the Constitution Bench in Modern Dental College and Research Centre (supra) in paragraph 75 of the reported decision. In that, though the fee can be fixed by the educational institutions and it may vary from institution to institution depending upon the quality of education provided by each of such institutions, commercialisation is not permissible; and in order to ensure that the educational institutions are not indulging in commercialisation and exploitation, the Government is equipped with necessary powers to take regulatory measures and to ensure that the private unaided schools keep playing vital and pivotal role to spread education and not to make money. The Court further noted that when it comes to the notice of the Government that the institution was charging fee or other charges which are excessive, it has complete authority coupled with its duty to issue directions to such an institution to reduce the same so as to avoid profiteering and commercialisation. 17. In paragraph 76 of the same decision, the Court then proceeded to consider the next question as to how a regulatory framework for ensuring that no excessive fee is charged by the educational institutions, can be put in place. For that, the Court adverted to the decision in T.M.A. Pai Foundation (supra), Islamic Academy of Education (supra), Modern School (supra) and P.A. Inamdar (supra) and noted that primary education is a fundamental right, but it was not an absolute right as private schools cannot be allowed to receive capitation fee or indulge in profiteering in the guise of autonomy to determine the school fees itself. The Court plainly noted that every school management of private unaided school is free to devise its own fee structure, but the same can be regulated by the Government in the interests of general public for preventing profiteering and/or charging of capitation fee. Further, fixation of fees needs to be regulated and controlled at the initial stage itself. The Constitution Bench noted with approval the exposition in Association of Private Dental and Medical Colleges vs. State of M.P.18, which reads thus: “42. We are of the view that Sections 4(1) and 4(8) of the 2007 Act have to be read with Section 9(1) of the 2007 Act, which deals with factors which have to be taken into consideration by the Committee while determining the fee to be charged by a private unaided professional educational institution. A reading of sub­section (1) of Section 9 of the 2007 Act would show that the location of private unaided professional educational institution, the nature of the professional course, the cost of land and building, the available infrastructure, teaching, non­teaching staff and equipment, the expenditure on administration and maintenance, a reasonable surplus required for growth and development of the professional institution and any other relevant factor, have to be taken into consideration by the Committee while determining the fees to be charged by a private unaided professional educational institution. Thus, all the cost components of the particular private unaided professional educational institution as well as the reasonable surplus required for growth and development of the institution and all other factors relevant for imparting professional education have to be considered by the Committee while determining the fee. Section 4(8) of the 2007 Act further provides that the Committee may require a private aided or unaided professional educational institution to furnish information that may be necessary for enabling the Committee to determine the fees that may be charged by the institution in respect of each professional course. Each professional educational institution, therefore, can furnish information with regard to the fees that it proposes to charge from the candidates seeking admission taking into account all the cost components, the reasonable surplus required for growth and development and other factors relevant to impart professional education as mentioned in Section 9(1) of the 2007 Act and the function of the Committee is only to find out, after giving due opportunity of being heard to the institution as provided in Section 9(2) of the 2007 Act whether the fees proposed by the institution to be charged to the student are based on the factors mentioned in Section 9(1) of the 2007 Act and did not amount to profiteering and commercialisation of the education. The word “determination” has been defined in Black's Law Dictionary, Eighth Edn., to mean a final decision by the Court or an administrative agency. The Committee, therefore, while determining the fee only gives the final approval to the proposed fee to be charged after being satisfied that it was based on the factors mentioned in Section 9(1) of the 2007 Act and there was no profiteering or commercialisation of education. The expression “fixation of fees” in Section 4(1) of the 2007 Act means that the fee to be charged from candidates seeking admission in the private professional educational institution did not vary from student to student and also remained fixed for a certain period as mentioned in Section 4(8) of the 2007 Act. As has been held by the Supreme Court in Peerless General Finance and Investment Co. Ltd. v. RBI19, the Court has to examine the substance of the provisions of the law to find out whether provisions of the law impose reasonable restrictions in the interest of the general public. The provisions in Sections 4(1), 4(8) and 9 of the 2007 Act in substance empower the Committee to be only satisfied that the fee proposed by a private professional educational institution did not amount to profiteering or commercialisation of education and was based on the factors mentioned in Section 9(1) of the 2007 Act. The provisions of the 2007 Act do not therefore, violate the right of private professional educational institution to charge its own fee.” 18. After having quoted the above exposition with approval in paragraph 81, the Court then proceeded to examine the need for a regulatory mechanism. It noted that the regulatory measures are felt necessary to promote basic well­being for individuals in need. In paragraphs 90 to 92 in Modern Dental College and Research Centre (supra), this Court noted as follows: “90. Thus, it is felt that in any welfare economy, even for private industries, there is a need for regulatory body and such a regulatory framework for education sector becomes all the more necessary. It would be more so when, unlike other industries, commercialisation of education is not permitted as mandated by the Constitution of India, backed by various judgments of this Court to the effect that profiteering in the education is to be avoided. 91. Thus, when there can be regulators which can fix the charges for telecom companies in respect of various services that such companies provide to the consumers; when regulators can fix the premium and other charges which the insurance companies are supposed to receive from the persons who are insured; when regulators can fix the rates at which the producer of electricity is to supply the electricity to the distributors; we fail to understand as to why there cannot be a regulatory mechanism when it comes to education which is not treated as purely economic activity but welfare activity aimed at achieving more egalitarian and prosperous society by empowering the people of this country by educating them. In the field of education, therefore, this constitutional goal remains pivotal which makes it distinct and special in contradistinction with other economic activities as the purpose of education is to bring about social transformation and thereby a better society as it aims at creating better human resource which would contribute to the socio­economic and political upliftment of the nation. The concept of welfare of the society would apply more vigorously in the field of education. Even otherwise, for economist, education as an economic activity, favourably compared to those of other economic concerns like agriculture and industry, has its own inputs and outputs; and is thus analysed in terms of the basic economic tools like the laws of return, principle of equimarginal utility and the public finance. Guided by these principles, the State is supposed to invest in education up to a point where the socio­economic returns to education equal to those from other State expenditures, whereas the individual is guided in his decision to pay for a type of education by the possibility of returns accruable to him. All these considerations make out a case for setting up of a stable regulatory mechanism. 92. In this sense, when imparting of quality education to cross­section of the society, particularly, the weaker section and when such private educational institutions are to rub shoulders with the State managed educational institution to meet the challenge of the implementing ambitious constitutional promises, the matter is to be examined in a different hue. It is this spirit which we have kept in mind while balancing the right of these educational institutions given to them under Article 19(1)(g) on the one hand and reasonableness of the restrictions which have been imposed by the impugned legislation. The right to admission or right to fix the fee guaranteed to these appellants is not taken away completely, as feared. T.M.A. Pai Foundation20 gives autonomy to such institutions which remains intact. Holding of CET under the control of the State does not impinge on this autonomy. Admission is still in the hands of these institutions. Once it is even conceded by the appellants that in admission of students “triple test” is to be met, the impugned legislation aims at that. After all, the sole purpose of holding CET is to adjudge merit and to ensure that admissions which are done by the educational institutions, are strictly on merit. This is again to ensure larger public interest. It is beyond comprehension that merely by assuming the power to hold CET, fundamental right of the appellants to admit the students is taken away. Likewise, when it comes to fixation of fee, as already dealt with in detail, the main purpose is that the State acts as a regulator and satisfies itself that the fee which is proposed by the educational institution does not have the element of profiteering and also that no capitation fee, etc. is charged. In fact, this dual function of regulatory nature is going to advance the public interest inasmuch as those students who are otherwise meritorious but are not in a position to meet unreasonable demands of capitation fee, etc. are not deprived of getting admissions. The impugned provisions, therefore, are aimed at seeking laudable objectives in larger public interest. Law is not static, it has to change with changing times and changing social/societal conditions.” 19. After this jurisprudential exposition, it is not open to argue that the Government cannot provide for external regulatory mechanism for determination of school fees or so to say fixation of “just” and “permissible” school fees at the initial stage itself. 20. The question is: whether the impugned enactment stands the test of reasonableness and rationality and balances the right of the educational institutions (private unaided schools) guaranteed to them under Article 19(1)(g) of the Constitution in the matter of determination of school fees? The Act of 2016 has been enacted by the State legislature. It was enacted as it was noticed that the earlier enactment on the self­same subject did not include provision of appeal against the orders of fee determination by the Fee Determination Committee. It was also noticed that there are large number of private schools (approximately 34,000) and a single fee determination committee cannot determine the fee of such schools in a proper manner in time. For that reason, the Act of 2016 came into being to provide for regulation of collection of fees by schools in the State of Rajasthan and matters connected therewith and incidental thereto. It extends to the whole of the State of Rajasthan and applies to both aided and unaided schools. The Act provides for a regulatory mechanism. The expression “aided school” is defined in Section 2(b) to mean a school receiving any sum of money as aid from the State Government. The expression “unaided school” has not been defined. It must, however, follow that all other private schools, other than aided schools would qualify that category (i.e., unaided private schools). The expression “school” has been defined in Section 2(t), which reads thus: “2. Definitions.­ In this Act, unless the context otherwise (t) “school” means the school imparting elementary, secondary and senior secondary education recognized by the Government and managed by any management and affiliated to any Indian or foreign course or Board, whether aided, partially aided, un­aided including the school run by the minority educational institution but does not include a school imparting religious instructions only;” 21. The expression “private school” has been defined in Section “2. Definitions.­ In this Act, unless the context otherwise (p) “private school” means a school established and administered or maintained by any person or body of persons and which is a recognized institution within the meaning of clause (q) of Section 2 of the Rajasthan Non­ (ii) a school established and administered or maintained by the Central Government or the State Government or any local authority;” It is, thus, clear that the Act of 2016 applies to all the schools within the State of Rajasthan referred to in Section 2(t) including private schools as defined in Section 2(p). 22. Section 3 of the Act of 2016 predicates that no school itself or on its behalf shall collect any fee in excess of the fee fixed or approved under the Act of 2016. The expression “fee” has been defined in Section 2(h), which reads thus: “2. Definitions.­ In this Act, unless the context otherwise (h) “fee” means any amount, by whatever name called, collected, directly or indirectly, by a school for admission of a pupil to any Standard or course of study;” 23. Besides the definition of expression “fee”, it would be apposite to advert to the factors for determination of fee under the Act of 2016 as delineated in Section 8 of the Act of 2016. The same reads “8. Factors for determination of fee. ­ The following factors shall be considered while deciding the fee leviable by a (b) the infrastructure made available to the students for the qualitative education, the facilities provided and as mentioned in the prospectus or web­site of the school; (c) the education standard of the school as the State (d) the expenditure on administration and maintenance; (e) the excess fund generated from non­resident Indians, as a part of charity by the management and contribution by the Government for providing free­ship in fee or for other items under various Government schemes given to the school for the Scheduled Castes, the Scheduled Tribes, Other Backward Class and (f) qualified teaching and non­teaching staff as per the (g) reasonable amount for yearly salary increments; (h) expenditure incurred on the students over total (i) reasonable revenue surplus for the purpose of development of education and expansion of the school; (j) any other factor as may be prescribed.” 24. In addition to Section 8, it is essential to take note of Rule 10 of the Rules of 2017 which provides for additional factors to be reckoned for determination of school fees. Rule 10 reads thus: “10. Additional factors for determination of fee. ­ The following factors shall be considered while deciding the fee in addition to the factors specified in section 8 of the Act, (i) facilities made available by the school under e­governance i.e. hardware and software facilities; (iii) other facilities made available to students such as swimming pool, horse riding, shooting, archery and (iv) supply of books, notebooks, etc. and other educational material provided to students; (vi) any other factor submitted by the Management before the School Level Fee Committee.” 25. After adverting to Section 8 and Rule 10, it is amply clear that the relevant factors for determination of reasonable school fees under the Act of 2016 and Rules framed thereunder have been duly articulated and are based on objective parameters. It was urged that clause (a) of Section 8 is vague. We find force in the argument of the respondent­State that the factors referred to in Section 8 and Rule 10 for determination of fee are founded on the dictum of this Court in successive reported precedents, as relevant factors. The factor of location of the school is certainly relevant for determination of fee as are the other factors referred to in Section 8 and Rule 10. The totality of the effect of all the specified factors is to be reckoned for determining the school fees of the concerned school for the relevant period. The location of the school is not the only factor that is to be taken into account. 26. At the end, what is relevant is that the institution is entitled to fix its own fee structure, which may include reasonable revenue surplus for the purpose of development of education and expansion of the institution, as long as it does not entail in profiteering and commercialisation. Whether fee structure evolved by the concerned school results in profiteering or otherwise is a matter which eventually would become final with the determination/adjudication by the Statutory Regulatory Committees constituted under Sections 7 and 10 of the Act of 2016, namely, Divisional Fee Regulatory Committee (DFRC) and Revision Committee respectively, as the case may be. That adjudication, however, becomes necessary only if the SLFC were to disapprove the proposal of the school Management regarding fee structure determined by the school. Whereas, if the SLFC were to accept the proposal of the school Management regarding fee structure as it is, that would be the fees under the Act of 2016 for the relevant period and then there would be no need for the DFRC to adjudicate upon the fixation of fee in the concerned school. 27. The SLFC is constituted institution or school wise, whereas the DFRC is an independent statutory regulatory authority empowered to enquire into the factum of whether fee structure of the given school determined by its Management entails in profiteering. In the event, the SLFC disapproves the proposal of the school Management, the dispensation provided for adjudication of the contentious position between the stakeholders in no manner violate the fundamental right of establishment of educational institution guaranteed under Article 19(1)(g) of the Constitution. 28. Section 4 of the Act of 2016 provides for Parent­Teachers “4. Parent­Teachers Association. ­ (1)(a) Every private school shall constitute the Parent­Teachers Association. (b) The Parent­Teachers Association shall be formed by the head of the school within thirty days from the beginning of each academic year. Every teacher of the school and parent of every student in the school shall be a member of the Parent­Teachers Association and an annual amount of rupees fifty, in case of urban area and rupees twenty, in case of rural area, shall be collected from each member of such association. (c) On formation of the Parent­Teachers Association, a lottery shall be conducted by drawing a lot of the willing parents to constitute the School Level Fee Committee and a notice of one week before such lottery shall be given to the member of the Parent­Teachers Association. (2)(a) The School Level Fee Committee shall consist of, ­ (i) Chairperson ­ representative of management of the (ii) Secretary ­ Principal of the private school; (iii) Member ­ three teachers nominated by the (iv) Member ­ five parents from Parent­Teachers (b) The list of members of the School Level Fee Committee shall be displayed on the notice board within a period of fifteen days from formation of the School Level Fee Committee and copy thereof shall forthwith be forwarded to the District Education Officer concerned. (c) The term of the School Level Fee Committee shall be for one academic year and no parent member shall be eligible for drawing a lot by lottery within the period of next three years since the expiry of his/her last term as the member of the School Level Fee Committee. (d) The School Level Fee Committee shall meet at least once in three months. The procedure to be followed for conducting the meeting of the School Level Fee Committee shall be such as may be prescribed. (e) The Parent­Teachers Association shall have a general meeting at least once before the 15th August of every year. The procedure to be followed for conducting the meeting of the Parent­Teachers Association shall be such as may be prescribed. The Parent­Teachers Association shall discharge such duties and perform such functions as may be assigned to it under this Act and as may be prescribed.” Section 4 predicates that every private school shall constitute the Parent­Teachers Association, which is to be formed by the head of the school within thirty days from the beginning of each academic year. Section 4(1)(b) envisages that every teacher of the school and parent of every student in the school shall be a member of the Parent­Teachers Association. Section 4(1)(c) provides that on formation of the Parent­Teachers Association, a lottery shall be conducted by drawing a lot of the willing parents to constitute the SLFC. In the context of this provision, it was urged that for choosing the willing parent to become member of the SLFC by draw of lots, no eligibility criteria has been prescribed in the Act of 2016 or the Rules of 2017. Besides, willing parent of the ward, who is admitted in the school against the 25 per cent quota of free education under the RTE Act, may also fit into this category even though he would have no stakes in the fee structure proposed by the school Management. The argument seems to be attractive, but for that reason the provision need not be struck down or declared as violative of any constitutional right of management of the school. This provision can be read down to mean that the draw of lots would be in respect of willing parents whose wards have been admitted against the seats other than the seats reserved for free education under the RTE Act. Further, for ensuring that the willing parent must be well­informed and capable of (meaningful) interacting in the discourse on the proposal of fee structure presented by the school Management, he/she must have some minimum educational qualification and also familiar with the development of school, management of finances and dynamics of quality education. The desirability of such eligibility of the willing parent ought to be specified. 29. Absence of such provisions in the Act or Rules, however, can be no basis to suspect the validity of the provision in question. We say so because draw of lots can be one of the ways of identifying the willing parent who could become member of the SLFC. Whether the member should be chosen by election from amongst the willing parents or draw of lots or by nomination including his/her eligibility conditions, is a legislative policy. They may serve the same purpose for constituting the SLFC to give representation to the parents of the wards who are already admitted in the school and are pursuing education thereat. In any case, this argument of the appellants will not take the matter any further much less to declare the relevant provision ultra vires as being violative of fundamental right of the appellants as such. 30. The composition of the SLFC has been specified in Section 4(2) (a) of the Act of 2016. It consists of a Chairperson being representative of management of the private school nominated by such management; Secretary — Principal of the private school (Ex officio); three teachers nominated by the management of private school as to be the members of the SLFC; and five parents from Parent­Teachers Association chosen by a lottery conducted by drawing a lot of willing parents. The SLFC consists of ten members — five are, in a way, representatives or nominees of the Management and five parents from the Parent­Teachers Association. The SLFC so constituted would continue to function for one academic year and the member chosen from Parent­ Teachers Association is not eligible to participate again for a period of three years thereafter from the date of expiry of his/her term as the member of the SLFC. By this process, the parents representing different wards get opportunity to be part of the SLFC. Suffice it to observe that the constitution of the SLFC and for the nature of its function, no fault can be found with Section 4 of the Act of 2016 much less on the ground that it violates the fundamental right to establish an educational institution. 31. Section 5 of the Act of 2016 deals with fixation of fee in “Government schools” and “aided schools”. However, we are not concerned with the said provision in the cases before us. 32. Section 6 deals with regulation of fees in private schools and the procedure to be followed for finalisation of the fee structure. “6. Regulation of fees in private schools. ­ (1) The management of the private schools shall be competent to propose the fee in such schools. (2) On the formation of the School Level Fee Committee, the management shall submit the details of the proposed fee along with the relevant record to the School Level Fee Committee for its approval at least six months before the commencement of the next academic year. While giving the approval, the School Level Fee Committee shall have the authority to decide the amount of fee afresh. (3) After considering all the relevant factors laid down under Section 8, the School Level Fee Committee shall approve the fee within a period of thirty days from the date of receipt of the details of the proposed fee and the record under sub­ section (2) and communicate the details of the fee so approved in writing to the management forthwith. The details of the fee so approved by the School Level Fee committee shall be displayed on the notice board in Hindi, English and in the respective medium of school, and if such school has its own website it shall be displayed on the same and it shall be binding for three academic years. (4) The School Level Fee Committee shall indicate the different heads under which the fee shall be levied. (5) If the School Level Fee Committee fails to decide the fee within the period specified in sub­section (3), the management shall immediately refer the matter to the Divisional Fee Regulatory Committee for its decision under intimation to the School Level Fee Committee in such manner as may be prescribed. During the pendency of the reference, the management shall be at liberty to collect the fee of the previous academic year plus ten percent increase in such fee till the final decision of the Divisional Fee (6) The Divisional Fee Regulatory Committee shall decide the appeal or reference as far as possible within the period of sixty days from the date of its filing after giving the opposite party an opportunity of being heard. (7) The management or the School Level Fee Committee aggrieved by the decision of the Divisional Fee Regulatory Committee in appeal or reference may, within thirty days from the date of such decision, prefer an appeal before the Revision Committee in such manner as may be prescribed.” 33. On bare perusal of this provision, it is noticed that the Management has the prerogative to submit its proposal regarding the fee structure in the given school. That proposal is submitted to the SLFC set up under Section 4 of the Act of 2016. The mechanism provided in Section 6 onwards would primarily apply to private unaided schools. Indeed, the expression “propose” used in Section 6(1) would mean that the proposal of the school Management is its in­principle decision regarding the fee structure for the relevant period. The usage of expression “propose” in no way undermines the autonomy of the school Management, in particular to determine its own fee structure for the relevant period. The consequence of proposal not being accepted by the SLFC is a different issue. Notably, the SLFC’s decision under Section 6(2) is not binding on the school Management. For, it is open to the school Management to then refer the matter for adjudication to the DFRC constituted under Section 7 of the Act of 2016, who in turn is obliged to decide the reference one way or the other. Indeed, that decision would be binding on both — the school Management as well as the parents, unless it is interdicted by the Revision Committee constituted under Section 10 of the Act of 2016 at the instance of the other party. 34. The stipulation such as in Section 6(3) of the Act of 2016 that the decision of fee structure proposed by the school Management, if approved by the SLFC, would be binding for three academic years, had been recognised and approved in Islamic Academy of Education (supra) in paragraphs 7 and 161 and also noted in P.A. 35. To put it differently, the dispensation envisaged under Section 6 of the impugned Act of 2016 is not intended to undermine the autonomy of the school Management in the matter of determination of fee structure itself. What it envisages is that the school Management may determine its own fee structure, but may finalise or give effect to the same after interacting with the SLFC. It is a broad­based committee, consisting of representatives of the school Management as well as five parents from Parent­Teachers Association. This is merely a consultative process and democratisation of the decision­making process by taking all the stakeholders on board. The SLFC does not sit over the proposal submitted by the school Management as a court of appeal, but only reassures itself as to whether the proposed fee structure entails in profiteering by the school on applying the parameters specified in Section 8 and Rule 10. In other words, it is open to the SLFC to take a different view regarding the school fees proposed by the school Management and arrive at a different fee structure. If that counter proposal is acceptable to the school Management, nothing further is required to be done and the decision so taken by the school Management would become binding for three academic years on all concerned. However, in case the school Management disagrees with the recommendations of the SLFC, it is open to both sides, namely, the school Management as well as the parents of wards to take the matter to the DFRC for adjudication on that aspect. 36. While deciding the school fees, the school Management/SLFC including the Statutory Regulatory Authorities, all concerned are guided by the factors delineated in Section 8 of the Act of 2016 and Rule 10 of the Rules of 2017. Suffice it to note that the process envisaged in Section 6 is democratic and consensual resolution of the issue of fee structure for the relevant period between the school Management and the parents’ representative being part of the SLFC. It is not to give final authority to the SLFC to determine the fee structure itself which, as aforesaid, is the prerogative of the school Management as per Section 6(1) of the Act of 2016. In that sense, the autonomy of the school Management to determine the fee structure itself in the first place is untrammelled and not undermined in any way. 37. Section 7 of the Act of 2016 is about the constitution of the “7. Constitution of Divisional Fee Regulatory Committee. ­ (1) The Government shall, by notification in the Official Gazette, constitute a Divisional Fee Regulatory Committee for each Revenue Division, which shall consist of (g) two representatives of ­ Member. (2)(a) The term of office of the representatives of private schools and parents shall be for a period of two years from the date of their nomination and in case of vacancy arising earlier, for any reason, such vacancy shall be filled for the remainder period of the term. (b) The representatives of private schools and parents shall not be eligible for reappointment. (c) The representatives of private schools and parents may resign from the office in writing addressed to the Divisional Commissioner and on such resignation being accepted, his office shall become vacant and may be filled in within a period of three month from the date of occurrence of vacancy. (d) A representative of private schools and parents may be removed, if he does any act which, in the opinion of the Divisional Commissioner, is unbecoming of a member of Provided that no representative of private schools or parents shall be removed from the Divisional Fee Regulation Committee without giving him an opportunity of being heard. (e) The other terms and conditions for the service of the representatives of private schools and parents shall be such as may be prescribed.” From the bare perusal of Section 7(1), it is noticed that first five members are official members. It is a broad­based independent Committee which includes two representatives of private schools in the divisional area “nominated by the Divisional Commissioner” and similarly two representatives of parents “nominated by the Divisional Commissioner”. The representation is given to the concerned stakeholders in the matter of determination of fee structure and in particular in the matter of enquiry into the factum whether fee structure proposed by the concerned school Management entails in profiteering or otherwise. In reference to Section 7(2)(a), we must observe that the term of office of representatives of the private schools and, in particular parents has been earmarked as two years from the date of their nomination. This would mean, necessarily, that the concerned parent would be eligible until his/her ward continues in the school during the tenure and is not a member of the SLFC of any school within the divisional area. Any member not fulfilling this criterion would be deemed to have vacated his office forthwith and, in his place, a new member can be nominated by the competent authority from amongst the parents of the wards pursuing studies in the school in the concerned divisional area. Moreover, while nominating representative of parents, the Divisional Commissioner must keep in mind that the person so nominated must possess basic qualification of accounting, development of a school and dynamics of quality education; and whose ward has not secured admission against 25 per cent quota of free education under the RTE Act. Thus understood, even Section 7 of the Act of 2016 does not violate the fundamental right guaranteed under Article 19(1)(g) of the Constitution in respect of establishment of educational institution. 38. Needless to underscore that the Divisional Commissioner, who is empowered to nominate two representatives of private schools would keep in mind that his/her nominees are from the schools within the divisional area and at least one amongst them should be chosen from a minority school so that representation is given to all stakeholders, including minority and non­minority private unaided schools. At the same time, it must be borne in mind that such a person is already not a member of the SLFC of any school in the divisional area. The dispensation provided in Section 7, is, thus, to create an independent machinery for adjudication of the question as to whether the fee structure proposed/determined by the school Management of the concerned school entails in profiteering, commercialisation or otherwise. 39. As regards challenge to Section 8 of the Act of 2016, the usage of expression “determination”, in our opinion, does not take away the autonomy of the school Management in determining its own fee structure. This provision is only an indicator as to what factors should be reckoned for determination of fee and on that scale the SLFC as well as the Statutory Regulatory Committees will be in a position to analyse the claim of the school Management. This provision, in fact, sets forth objective parameters as to what would be the reasonable fee structure — not resulting in profiteering and commercialisation by the school Management. As aforesaid, this provision will have to be read along with Rule 10 of the Rules of 2017 which provides for additional factors to be borne in mind while examining the question regarding reasonableness of the fee structure proposed by the school Management. 40. Reverting to Section 9, which reads thus: “9. Powers and functions of Divisional Fee Regulatory Committee. ­ (1) The powers and functions of the Divisional Fee Regulatory Committee shall be to adjudicate the dispute between the management and the Parent­Teachers Association regarding fee to be charged by the school management from the students. (2) The Divisional Fee Regulatory Committee may authorize any officer not below the rank of the Head Master of Secondary School to enter any private school or any premises belonging to the management of such school, if the Divisional Fee Regulatory Committee finds so necessary, and search, inspect and seize any records, accounts, registers or other documents belonging to such school or the management in so far as such records, accounts, registers or other documents are necessary and relevant to decide the issues before the said Committee. The provisions of the Code of Criminal Procedure, 1973 (Central Act No. 2 of 1974) relating to searches and seizures shall apply, so far as may be, to searches and seizures under this section. (3) The Divisional Fee Regulatory Committee shall regulate its own procedure, for the discharge of its functions, and shall, for the purpose of making any inquiry under this Act, have all powers of a civil court under the Code of Civil Procedure, 1908 (Central Act No. 5 of 1908) while trying a suit, in respect of the following matters, namely: ­ (i) the summoning and enforcing the attendance of any (ii) the discovery and production of any document; (iii) the reception of evidence on affidavits; (iv) the issue of commission for the examination of the (4) No order shall be passed by the Divisional Fee Regulatory Committee in the absence of the Chairperson. The order of the Divisional Fee Regulatory Committee shall be binding on the parties to the proceedings before it for three academic years. It shall not be called in question in any civil court except by way of an appeal before the Revision Committee constituted under this Act. (5) At the time of resolving the dispute, the Divisional Fee Regulatory Committee shall not grant any interim stay to the fee determined by the management. On decision in appeal or reference, the Divisional Fee Regulatory Committee may pass appropriate orders for refund of the excess fee to the student concerned. In case the management fails to refund the excess fee to such student, the Divisional Fee Regulatory Committee shall proceed to recover such excess fee from the management as an arrear of land revenue and pay the same to such student. (6) The Divisional Fee Regulatory Committee shall, on determining the fee leviable by a private school, communicates its decision to the parties concerned. (7) Every private school preferring an appeal before the Divisional Fee Regulatory Committee shall place the copy of decision in appeal on its notice board, and if such school has (8) The Divisional Fee Regulatory Committee shall indicate the different heads under which the fee shall be levied. (9) The orders passed by the Divisional Fee Regulatory Committee shall be binding on the private school for three academic years. At the end of the said period, the private school shall be at liberty to propose changes in its fee structure by following the procedure as laid down under this Section 9 deals with powers and functions of the DFRC inter alia to adjudicate the dispute between the Management and the Parent­ Teachers Association regarding fee to be charged by the school Management from the students. The DFRC has been empowered to undertake search, inspect and seize any records, accounts, registers or other documents belonging to the concerned school or the management in so far as such records, accounts, registers or other documents are necessary and relevant to decide the issues before the said Committee. It can regulate its own procedure for the discharge of its functions and exercise all powers of a civil court under the Code of Civil Procedure, 1908. 41. Essentially, Section 9 bestows power upon the DFRC to adjudicate the dispute between the school Management and Parent­ Teachers Association regarding difference of opinion in respect of fee structure for the concerned school. What is significant to note is that Section 9(5) makes it amply clear that the DFRC has no power to grant any interim stay to the fee determined by the Management. However, in light of Section 6(5) during the pendency of the appeal or reference before the DFRC, school Management is at liberty to collect fee of the previous academic year plus ten per cent increase in such fee till the final decision of the DFRC, as predicated in Section 6(5) of the Act of 2016. The decision of the DFRC is amenable to appeal before the Revision Committee constituted under Section 10 of the Act of 2016. None of these violate the fundamental right of the school Management guaranteed under Article 19(1)(g) of the Constitution to determine its own fee structure in any manner. 42. Section 10 deals with constitution of Revision Committee. This Committee discharges the function of an appellate authority where the aggrieved party, namely, school Management or the Parent­Teachers Association can assail the decision of the DFRC. This is a final adjudicatory body created under Section 10 consisting of official members including two representatives of private schools nominated by the State Government and two representatives of parents nominated by the State Government. This is again a broad­based independent Committee to consider the revision preferred against the decision of the DFRC, constituted on similar lines. The latter Committee is constituted under Section 7 of the Act of 2016. The observations made in reference to the constitution of the DFRC under Section 7 hitherto would, therefore, apply with full force to this provision as well. 43. The procedure to be followed by the Revision Committee is specified in Section 11 of the Act of 2016, which provision makes it amply clear that the decision of the Revision Committee shall be final and conclusive and shall be binding on the parties for three academic years. Setting up of an independent final adjudicatory authority especially created for considering the question as to whether the fee structure proposed by the school Management results in profiteering or otherwise, it does not impinge upon the fundamental right of the school Management guaranteed under Article 19(1)(g) of the Constitution. 44. Even the challenge to the validity of Sections 15 and 16 of the Act of 2016 is devoid of merit. Section 15 deals with consequences of contravention of the provisions of the Act of 2016 or the Rules made thereunder by an individual. Whereas, Section 16 deals with consequences of violation by a management and persons responsible therefor. It is unfathomable as to how these provisions can have the propensity to violate the fundamental right of the school Management under Article 19(1)(g) of the Constitution especially when violation of the mandate of certain compliances under the Act of 2016 and Rules framed thereunder has been made an offence and persons responsible for committing such violation can be proceeded with on that count. 45. The appellants having failed to substantiate the challenge to the validity of the relevant provisions of the Act of 2016, must also fail with regard to the challenge to Rules 3, 4, 6 to 8 and 11 of the Rules of 2017. 46. Rule 3 provides for a procedure for conducting meeting of Parent­Teachers Association. The school Management can have no grievance regarding the procedure for conducting meeting of Parent­ Teachers Association of the school concerned much less violating its fundamental right guaranteed under Article 19(1)(g) of the Constitution regarding establishment of educational institution and administration thereof, including determination of fee structure on its own. 47. Rule 4 deals with duties and functions of Parent­Teachers “4. Duties and functions of Parent­Teachers Association. ­ The Association shall discharge the following duties and perform the following functions, namely:­ (i) to get information about Tuition fees, Term fees and fees for co­curricular activities as decided by the School (ii) to observe completion of syllabus as per the (iii) to assist school for planning of other co­curricular (iv) to assess the needs of co­curricular activities.” The above Rule enables the Parent­Teachers Association to get information about tuition fees, term fees and fees for co­curricular activities as decided by the SLFC; to also observe completion of syllabus as per the planning; to assist school for planning of other co­curricular activities; and to assess the needs of co­curricular activities. This is an enabling provision bestowing power coupled with duty in the Parent­Teachers Association. This in no way affect the right of the school Management in the matter of determination of school fees by itself. The purpose of above provision is to empower the Parent­Teachers Association to get information about tuition fees, term fees and fees for co­curricular activities, to facilitate it to analyse the claim of the school Management regarding the fee structure being reasonable or otherwise. It is on the basis of that information, the representatives of the Parent­Teachers Association, forming part of the SLFC, will be in a position to meaningfully interact either to give counter offer or agree with the proposal submitted by the school Management. Even though, the Act of 2016 is largely for regulation of fee, the information regarding the incidental aspect thereof as to whether co­curricular activities proposed by the school Management are necessary or not is significant. For, if Parent­Teachers Association is of the view that it is unnecessary, it can project its perception in that regard during the interaction to persuade the school Management to avoid such co­curricular activities and to reduce the burden of expenses to be incurred therefor. That would resultantly reduce the liability of the parents commensurately due to reduced fee liability. 48. Rule 6 deals with duties and functions of the SLFC. It specifies the additional duties to be performed by the SLFC besides the powers and functions specified in the Act of 2016. Rule 6 reads “6. Duties and functions of School Level Fee Committee. ­ The School Level Fee Committee shall, in addition to the powers and functions specified in the Act, discharge the following duties and perform the following (a) to oversee the compliance of the provisions of the Act (b) to take decision on proposals received from Management, regarding determination of fee within time specified in sub­section (3) of section 6 of the Act; and (c) to make available necessary documents to the Divisional Fee Regulatory Committee or Revision Committee, as the case may be, where appeal is filed by the Management.” We fail to understand as to how Rule 6 would come in the way or infringe the fundamental right of the school Management guaranteed under Article 19(1)(g) of the Constitution. This Rule gives additional powers to the SLFC for ensuring compliances of the provisions of the Act of 2016 and the Rules made thereunder including regarding determination of school fees. 49. Rules 7 and 8 of the Rules of 2017 deal with meeting of the SLFC and procedure to refer proposal to DFRC and to file appeal and revision before the Statutory Regulatory Committees “7. Meeting of the School Level Fee Committee. ­ (1) The Chairperson of the School Level Fee Committee shall call the meetings of the School Level Fee Committee. The Secretary of the committee shall issue notice of meeting to the members of the School Level Fee Committee in Form­II. The notice shall be issued fifteen days before the date of meeting. (2) The notice shall be sent to each member of the School Level Fee Committee by registered post or delivered through any other mode. The acknowledgement of notice shall be preserved for a period of one year. (3) No business shall be transacted in the meeting of the School Level Fee Committee unless four members are present out of which at least two shall be the parent members of the School Level Fee Committee. If there is no quorum, the Chairperson of the School Level Fee Committee shall adjourn the meeting. The adjourned meeting shall be recalled again after the lapse of ten days from the date of the meeting which is adjourned. (4) The Secretary of the School Level Fee Committee shall prepare minutes of the meeting and circulate the same to all the members within fifteen days from the date of the meeting. (5) The minutes of the meeting shall be made available to the District Education Officer or Deputy Director concerned, as and when required. (6) If a parent member is absent for three consecutive meetings, his membership shall be deemed to be cancelled and such vacancy shall be filled in by lottery, from amongst the applications received for that academic year under rule 8. Procedure to refer proposal to Divisional Fee Regulatory Committee and to file appeal before Divisional Fee Regulatory Committee and Revision Committee under section 6 of the Act. ­ (1) The Management of the school shall submit fee proposal to the School Level Fee Committee at least six months before the commencement of the next academic year in Form­III. (2) If the School Level Fee Committee fails to decide the fees within the period specified in sub­section (3) of section 6 of the Act, the management shall immediately refer the matter in Form­IV, along­with the proposal submitted to the School Level Fee Committee, to the Divisional Fee Regulatory Committee, within thirty days of expiry of the period specified in sub­section (3) of section 6 of the Act, for its decision. (3) The management may prefer an appeal in Form­V against the decision of the School Level Fee Committee within 30 days from the date of decision of the School Level Fee (4) The management or School Level Fee Committee aggrieved by the decision of the Divisional Fee Regulatory Committee in appeal or reference may, within thirty days from the date of such decision, prefer an appeal, in Form­VI, before the Revision Committee along with the proposal of fees submitted by management and the copy of the decision of the School Level Fee Committee and Divisional Fee These Rules deal with purely procedural matters and are in line with the powers and functions of the concerned Committees. The Rules provide for the manner in which the proposal is to be submitted by the school Management and to be taken forward. These provisions in no way affect the fundamental right guaranteed under Article 19(1)(g) of the Constitution much less autonomy of the school Management to determine the fee structure itself in the first place including the administration of the school as such. 50. The next challenge is to Rule 11 which obligates the private schools to maintain accounts and other records in the manner prescribed thereunder. The same reads thus: “11. Maintenance of accounts and other records.­ (1) (a) maintain separate accounts for different kinds of transactions, such as, fees collected, grants received, financial assistance received, payments of salary to staff, purchase of machinery and equipment, laboratory apparatus and consumables, library books, stationery, computers, software and other expenditure incurred; (b) keep the registers, accounts and records within the premises of their school as they shall be made available at all reasonable time for inspection; and (c) preserve the accounts maintained, together with all vouchers relating to various items or receipts and expenditure, until the audit of accounts is over and objections, if any, raised are settled. (2) Every private school shall, in addition to accounts and records specified in sub­rule (1), maintain the following, (g) Staff Attendance Register and Staff Salary Register; (3) Every private school shall also maintain the other record of the institution as per the orders issued by the Government, from time to time.” In our opinion, even this provision by no stretch of imagination would affect the fundamental right of the school Management under Article 19(1)(g) of the Constitution much less to administer the school. This provision, however, is to ensure that a meaningful inquiry can be undertaken by the SLFC or the Statutory Regulatory­cum­Adjudicatory Authorities in determination of the fact whether the fee structure propounded by the school Management results in profiteering or otherwise. If information is furnished in any other manner (other than the manner specified in Rule 11), it would become difficult for the concerned Committees/Authorities to answer the contentious issue regarding profiteering. The fee structure determined by the school Management can be altered by the Adjudicatory Authorities only upon recording a negative finding on the factum of amount claimed towards school fees relating to particular activities is an essential expenditure or otherwise; and that the fee would be in excess of reasonable profit being ploughed back for the development of the institution or otherwise. The recovery of excess amount beyond permissible limit would result in profiteering and commercialisation. In our opinion, therefore, even Rule 11 is a relevant and reasonable provision and does not impact or abridge the fundamental right under Article 19(1)(g) of the Constitution. 51. The last assail was on the argument that the field regarding (school) fee, in particular capitation fee is already covered by the law enacted by the Parliament being RTE Act and for that reason, it was not open to the State to enact law on the same subject such as the impugned Act of 2016. This argument is completely misplaced and tenuous. For, the purpose for which the RTE Act has been enacted by the Parliament is qualitatively different. It is to provide for free and compulsory education to all children of the age of 6 to 14 years, which is markedly different from the purpose for which the Act of 2016 has been enacted by the State legislature. Merely because the Central Act refers to the expression “capitation fee” as defined in Section 2(b) and also in Section 13 of the RTE Act — mandating that no school or person shall, while admitting a child, collect any capitation fee, does not mean that the Central Act deals with the mechanism needed for regulating fee structure to ensure that the schools do not collect fees resulting in profiteering and commercialisation. By its very definition, the capitation fee under the Central Act means any kind of donation or contribution or payment other than the fee notified by the school. On the other hand, fee to be notified by the school is to be done under the impugned Act of 2016 after it is so determined by the school Management and approved by the SLFC or by the Statutory Regulatory Authorities, as the case may be. Suffice it to observe that the field occupied by the Central Act is entirely different than the field occupied by the State legislation under the impugned Act of 2016. The impugned Act of 2016 deals specifically with the subject of regulating fee structure propounded by the private unaided school management. Hence, there is no substance in this challenge. 52. Taking overall view of the matter, therefore, we uphold the conclusion of the High Court in rejecting the challenge to the validity of the impugned Act of 2016 and Rules framed thereunder. However, we do so by reading down Sections 4, 7 and 10 of the Act in the manner indicated in paragraphs 28; 37/38 and 42 respectively of this judgment. These provisions as interpreted be given effect to, henceforth, in conformity with the law declared in this judgment. For the reasons mentioned hitherto, we hold that the High Court rightly concluded that the provisions of the Act of 2016 as well as the Rules of 2017 are intra vires the Constitution of India and not violative of Articles 13(2) and 19(1)(g) of the 53. These appeals assail the common judgment and order dated 18.12.2020 of the Division Bench of the High Court of Judicature for Rajasthan at Jaipur whereby all the connected cases involving challenge to the orders dated 09.04.2020, 07.07.2020 and 28.10.2020 issued by the State Authorities were disposed of. 54. The order dated 09.04.2020 was issued by the Director, Secondary Education, in the wake of COVID­19 pandemic, directing the private schools recognised by the Primary and Secondary Education Departments to defer collection of school fees for a period of three months. The said order reads thus: As per the direction issued by Hon’ble Chief Minister, order is being issued in regard to collection of fees by Elementary and Secondary Education Department recognized non­ government schools, which is as follows:­ 1. No fee will be charged by non­government schools from the students/guardians of the period after 15 th March, the applicable fees at present and payment of advance fees which is deferred for 3 months. In case of non deposition of fees during this period, name of such student will not be struck off from the rolls of the school. 2. In case of continuation of the studies in the non­ government schools, the deferred fees for the present session 2020­21 will be chargeable after deferment period is over. 3. After completion of the Lock down period, if any student of non­government school wants his Transfer Certificate for continuing studies in another school then the same can be obtained after depositing fees of the previous session 2019­ 20 and obtaining the no­dues certificate. dated 09.04.2020” 55. Before expiry of the period noted in the aforementioned order, the Director, Secondary Education issued another order on In continuation of the Government letter No.P.8(3) Shiksha­ 5/COVID­19 Fees Staghan/2020 dated 01.07.2020, for collection of fees by Elementary and Secondary Education Department recognized non­government schools, the 1. The fee chargeable by non­government schools from the students/guardians after 15th March, the applicable fees at present and payment of advance fee was deferred for 3 months, as per the direction of the State Government the said deferment is extended till the reopening of the schools. In case of non­deposition of fees during the said period, name of such student will not be struck off from the rolls of the school. 2. Remaining all will be as per order No. (Shivra/Ma/PSP/Sikayat/Vetan/2019­20) dated 56. The private unaided schools then filed writ petition(s) before the High Court challenging the aforesaid orders dated 09.04.2020 and 07.07.2020. The learned Single Judge of the High Court Bench at Jaipur considered the prayer for interim relief and vide order dated 07.09.2020 directed the school Authorities to allow the students to continue their studies online and also to deposit only 70 per cent of the tuition fees element from the total fees chargeable for the period from March 2020 in three instalments. The relevant extract of the order of the learned Single Judge dealing with the prayer for interim relief at the instance of the appellants­Schools “13. I have considered the submissions as above and perusal the material available on record. 14. While there are myriad issues involved in the present batch of the writ petitions, which are required to be examined finally; at this interim stage, this Court finds that a balance is required to be struck between financial difficulty of the school management relating to release of the salary of the staff and minimum upkeep of school on one side and the financial pressure, which has come on the parents due to the pandemic and lock­down as noticed above. 15. After noticing the judgments passed by the High Court of Gujarat at Ahmedabad in the case of Nareshbhai Kanubhai Shah Versus State of Gujarat & 2 Others: R/Writ Petition (PIL) No.64/2020 and other connected matters decided on 31.7.2020, the High Court of Punjab and Haryana at Chandigarh in the case of Independent Schools Association Versus State of Punjab & Others: CWP No.7409/2020 and other connected matters decided on 30.6.2020 and the High Court of Delhi in the case of Rajat Vats Versus Govt. of Nct of Delhi & Another: WP (C) No.2977/2020 decided on 20.4.2020, this Court is of the view that prima facie, members of the petitioner association cannot be deprived of receiving the tuition fees for the students, who continued to remain on their rolls. 16. However, this Court notices that total infrastructure cost, which the school may incur for the regular studies during normal days, has been definitely reduced day to day schools are not opening. It is noticed that the tuition fees is assessed on the basis of the infrastructure expenditure including staff salary and operation cost incurred by the schools in terms of the provisions of the Rajasthan Schools (Regulation of Fee) Act, 2016, after following the procedures laid down therein. 17. This Court agrees prima facie with the counsel for intervenors that while the institutes had to incur certain additional expenditure for developing online classes process, the same would be less than individual expenditure being incurred by the parents for providing infrastructure to their each ward, who is undergoing online classes at home. There may be also cases where the parents may have two or three children. To each one separate laptop or computer will be required to provide as all of them would be undergoing online classes at the same time. Thus, comparative balance is required to be maintained. 18. Prima facie, this Court is also of the view that under the Act of 2005, the authorities would have jurisdiction to lay down policy, guideline and direction, which may be found to be suitable for the purpose of providing the relief to the persons affected by the disaster as mentioned in Section 22 of the Act of 2005. The guidelines can be laid down for mitigation of such loss to the citizens. The powers and functions of the State Executive Committee under Section 22(j) provide that the State Executive Committee shall ensure that non­governmental organizations carry out their activities in an equitable and non­discriminatory manner. The petitioners are all non­governmental organizations and are expected therefore to play their necessary role in mitigating the sufferance caused to the public at large, while at the same time also protect their own staff from facing financial difficulties. This Court is also conscious of the fact that the State­respondents, while passing the impugned orders, have not taken into consideration the difficulties, which the staff of the concerned school would face on account of non­payment of the fees. However, burdening the parents with complete tuition fees would not be appropriate and justified. 19. In view of the above, this Court by an interim measure and till the situation gets normalized, directs the school authorities to allow the students to continue their studies online and allow them to deposit 70% of the tuition fees element from the total fees being charged for the year. The said 70% of the tuition fees shall be paid for the period from March, 2020 in three installments to the respective schools. However, it is made clear that on non­payment of the said fees, the student(s) may not be allowed to join online classes, but shall not be expelled from the school. The three installments shall be fixed by depositing the first installment on or before 30.9.2020 while the second installment shall be paid by 30.11.2020 and third installment shall be paid by 31.1.2021. However, it is further made clear that the question regarding remaining fees shall be examined at the stage of final disposal of these writ petitions. The orders are being passed as interim arrangement subject to final adjudication of the case. 20. The stay applications are accordingly disposed of.” 57. Against this decision, intra­court cross appeals came to be filed. In those appeals, the Division Bench vide order dated 01.10.2020 stayed the operation of the interim order passed by the learned Single Judge. The appeals were then heard on 12.10.2020 and reserved for orders. However, as representations were received from several counsel that they were unable to interact with the court through video conferencing, the matters were notified for further hearing on 14.10.2020. The Court then directed listing of appeals on 20.10.2020. However, before next date of hearing, the State Government vide order dated 16.10.2020 constituted a four­ member Committee to give suggestions to the State Government in relation to recovery of fees from parents/students by Private/Non­ Government Educational Institutions during the academic session 2020­21. The High Court was apprised about this development when the matters were taken up on 23.10.2020 as is noticed from Mr. Rajesh Maharshi, AAG, submits that a committee has been constituted for determination of fees to be charged by the private schools for the period of lockdown imposed due to Covid­19 Pandemic. The Committee is in process to finalize its recommendations and accordingly the affidavit shall be filed on behalf of the State Government on 2 nd of November 2020 positively. Mr. Kamlakar Sharma learned Senior advocate raised serious objection and prayed for interim measure in view of the great hardship being faced by the private schools to run their institutions. Considering the hardship of the private schools, it is directed that the State Government shall issue necessary directions by 28.10.2020 positively regarding interim fees which the private schools shall be allowed to charge subject to final decision in this regard. In the meanwhile, necessary affidavit in compliance of earlier directions shall be filed by the State Government by 02.11.2020 without fail after providing a copy of the same to all the parties. List on 03.11.2020” 58. The appeals were, thus, directed to be notified on 3.11.2020. Before that date, however, the Director, Secondary Education issued order dated 28.10.2020, which reads thus: The Hon’ble High Court in DB Special Appeal No.637/2020 Sunil Samdria versus State of Rajasthan and other Special Appeals passed an order dated 23.10.2020 directing the State Government to take a decision in regard to charging of school fees from guardians/students for academic session 2020­21 keeping in view COVID pandemic and the guidelines be issued by 28.10.2020. In compliance of the order passed by Hon’ble Rajasthan High Court, Jaipur dated 23.10.2020 and in pursuance to the State Government’s letter No. P.8(3) Shiksha­5/COVID­19 Fees Staghan/2020 dated 28.10.2020, the guidelines for charging of school fees for the academic session 2020­21 by non­government educational institutions from students/guardians, are issued which are as follows:­ 1. After reopening of the school only tuition fees will be charged from the students. 2. The tuition fees will be as per the prescribed syllabus for teaching. Like CBSE for class 9th to 12th has reduced 30% of the syllabus and has prescribed 70% of the syllabus, hence, the fees to be charged for this session will be 70% of the tuition fees of last academic session. Similarly, Rajasthan Board of Secondary Education for class 9th to 12th has reduced 40% of the syllabus and has prescribed 60% of the syllabus, hence, the fees to be charged for this session will be 60% of the tuition fees of last academic session. 3. Looking to the circumstance arising out of COVID­19 pandemic, the decision to call the students of Class 1 st to 8th to school has not been taken, hence whenever the decision is taken and as per the reduction of syllabus, in the same proportion the fees will be charged. 4. The fees decided as per above payable to the school for which guardians/student will be given option of payment of fees monthly/quarterly. 5. The schools will not change the uniform prescribed in the previous academic session. 6. The facilities not being utilized by students like laboratory, sports, library, curricular activities, development fees, boarding fees etc. no fees under this head will be charged by schools. 7. For presence of the students in the school, written consent of the guardians will be required. 8. In case the student is using conveyance provided by the school like Bal Vaihani etc. then the conveyance charges can be charged but it will not be more than the conveyance fees charged during the previous academic session. The conveyance fees will be in proportion to the number of working days after reopening of the schools. 9. The conveyance being provide by the schools for students will have to follow the COVID­19 guidelines prescribed by State Government and any other directions issued by 10. The SOP issued by State Government will have to be adhered to by the non­government schools. 1. The schools will determine the fees to be charged from students after reopening of the school as per the prescribed syllabus for teaching. 2. Before opening of the schools the online teaching work was for making them acquainted i.e. capacity building was the objective. Hence, the fees chargeable will be termed as capacity building fees. 3. The schools which were/which are imparting online teaching then capacity building fees can be charged from such students which will be 60% of the tuition fees. For online teaching, the consent of the guardians will be necessary and capacity building charges can be charged from consenting students. 4. When the schools reopen, it will be duty of schools to impart the complete syllabus as prescribed by the board to the students who did not study in online classes and the said syllabus will have to be completed by the schools the schools will ensure equality between the online and offline students. 5. The capacity building charges will be charge from the guardians in monthly installments. 6. Till the permission is granted by Government for starting class/classes of students and online teaching is imparted regularly for that period only the capacity building fees will be charged. 7. If any student does not subscribe to the online education being provided by the school, no capacity building fees will be charged. 1. The fees determined by school fee committee formed as per Rajasthan Schools (Regulation of Fees) 2016 and Rules 2017 will be the basis for aforesaid determination of fees which will clearly mention the various fees i.e. tuition fees, library fee etc. 2. The prescribed total fees and tuition fees of last year will not be increased. 3. Every guardian will be provided of receipt of tuition fees/capacity building fees. The said receipt will contain the details of the prescribed fees and the reduced fees necessarily. 4. The students who are undergoing online classes and want to continue with online classes but their guardians are unable to pay the fees, in such cases a committee will be formed at school level which will examine such cases and will take a decision in regard to the relaxation of fees to be granted looking to the circumstances from case to case. 5. The remaining fees for the academic session 2019­20 (remaining till the schools remained open) will be charged in equal monthly installments. The guardians of such students will not compelled to pay the fees in single installment. 6. No student will be prevented from registration for Board Examination even if he has not attended the online classes and has not paid the fees, even the transfer certificate of such students will not be issued. 7. If any student wants to take transfer certificate and has attended online classes than capacity building fees as per aforesaid provision can be charged. 8. For charging fees as per aforesaid the non­government schools will pay prescribed salary to the employees had teachers and no retrenchment will be done due to circumstances of COVID­19. The aforesaid has been approved by competent level. All concerned ensure the compliance. 59. This order was assailed by some of the private schools before the High Court by way of substantive writ petition(s), which, as per the High Court Rules was required to proceed before the Single Judge in the first place. In addition, applications were filed in the pending intra­court appeals before the Division Bench seeking liberty to challenge the order dated 28.10.2020 issued by the Director, Secondary Education. As a result, the Division Bench with the consent of parties thought it appropriate to hear all the matters including involving challenge to the order dated 28.10.2020 of the Director, Secondary Education. 60. Accordingly, the appeals and writ petitions were heard and decided together by the common judgment and order pronounced on 18.12.2020, which is impugned in the present appeals. The Division Bench vide impugned judgment opined that the State Government was competent and had jurisdiction to issue directions as given vide order dated 28.10.2020 of the Director, Secondary Education, being a policy decision necessitated due to aftermath of pandemic situation. The Court held that in absence of any legal provision to address the unprecedented difficulties faced by the parents and their wards across the State, it was open to issue administrative directions in exercise of power under Article 162 of the Constitution and especially when there was no legal provision prohibiting issuance of such directions. The Division Bench also opined that such order could be issued even in exercise of power under Section 22 of the Disaster Management Act, 2005 21. The Division Bench rejected the argument of the appellants that the stated order dated 28.10.2020 does not mention the source of power under which the same has been issued by the Director, Secondary Education or that it was vitiated due to lack of opportunity of hearing to the school Management(s). Instead, the Court held that even if there is no formal authentication of the order, it would be of no consequence. For, the direction was given by the Chief Minister being the administrative and political head of the State Government. It was the bounden duty of the State Government to reckon the ground realities and strike a balance between the interests of private schools as well as of the parents and students and to mitigate the plight of the citizens due to unprecedented crisis post COVID­19 pandemic. The Court did advert to the fact that the school Management was obliged to honour its commitment, rather obligation to pay salary to its staff on account of governing statutory provisions despite the pandemic situation. Further, the State of Rajasthan had adopted a different 21 for short, “the Act of 2005” pattern of substantially reducing the school fees in comparison to other States. Nevertheless, it noted that it is always open to the school Management as well as the parents to approach the statutory forum for determination of just fee under the Act of 2016. The Division Bench finally proceeded to conclude as follows: “In view of the above discussion, the rest of the petitions are I. All the private schools recognized by the Primary and Secondary Education Department shall be entitled to collect school fees from the parents of their students including the students of pre­primary classes in terms of the order dated 28.10.2020 issued by the State Government subject to special determination of fees as being directed hereunder. II. All the private schools are directed to form necessary bodies required for special determination of fees within 15 days, if such bodies have not been constituted so far in terms of Rajasthan Schools (Regulation of Fee) Act 2016, and Rajasthan Schools (Regulation of Fee) Rules 2017. III. In order to safeguard the interests of the schools’ management and the parents, it is further directed that all the private schools recognized by the Primary and Secondary School Education Department shall specially determine the school fees for the period in which schools remained closed due to COVID­19 pandemic and after opening of the schools in the Session 2020­ 2021 in terms of the provisions of Section 8 of Rajasthan Schools (Regulation of Fee) Act, 2016 and for this purpose all the schools shall publish necessary details including the strength and salary paid to the staff during the period in which the schools remained closed for such special determination on their notice boards as well as on their websites. This special determination of school fees shall be completed within two months from the date of order positively. IV. With the object to prevent any unfair practice of collection of fees in the process of this special determination of fees the component of tuition fees shall be specifically determined and for that purpose, all heads of the school fees shall be bifurcated as mandated under Section 6(4) of the Act of 2016. V. Besides this, the schools’ management or the parents may take recourse of the provision of appeal/reference before as the case may be in case any of them are aggrieved of such special determination. Needless to say, that in the process of above special determination of school fees, it will be open for the schools’ management and the parents to determine the fees in consonance with the directions contained in order dated 28.10.2020 or they may increase or decrease the fees to be collected for the current session. VI. The interim order dated 07.09.2020 passed by learned Single Judge stands vacated.” 61. In this backdrop, the management of private unaided schools in the State of Rajasthan have approached this Court to assail the impugned judgment of the Division Bench of the High Court and also the order dated 28.10.2020 issued by the Director, Secondary Education. As a matter of fact, challenge to the orders issued by the Director, Secondary Education on 09.04.2020 and 07.07.2020 had worked out due to efflux of time. For, by these orders the school Management was merely directed to defer collection of school fees for specified period as noted therein; and that period had already expired. Thus, our focus in this judgment will be and ought to be only on the legality and rationality of the order issued by the Director, Secondary Education on 28.10.2020 and applicable to academic year 2020­21 only, including the basis on which the same has been upheld by the High Court vide impugned judgment. 62. According to the appellants (private unaided schools), the school fee charged from their students was fixed by the SLFC in its meeting held on 28.10.2017, by following procedure prescribed under the Act of 2016 and the Rules framed thereunder. The same was to remain in force for the academic years 2018­19, 2019­20 and 2020­21. In the present appeals, as aforementioned, we are concerned only with the school fees pertaining to the academic year 2020­21, in light of the impugned order dated 28.10.2020 issued by the Director, Secondary Education. 63. The appellants would urge that being a responsive school administration and also being deeply concerned with the development of wards pursuing education in the concerned schools, the school Management “on their own” had decided to offer scholarship of 25 per cent of the annual fee to their students. That was to mitigate the difficulties faced by the parents and keeping in mind that certain recurring expenses were not being incurred by the school Management during the lockdown period. Be that as it may, in law, it is not open to the State Authorities to modify the school fees once fixed by the SLFC for the relevant academic year that too in the manner done by the Director, Secondary Education vide order dated 28.10.2020. The fact that the parties are at liberty to challenge the modification/reduction of school fees before the statutory forum does not justify the issue of such an order — unless the State Authorities have clear mandate to do so under the governing law. The departure made by the Director, Secondary Education vide order dated 28.10.2020 was not acceptable to the school Management, being ex facie illegal. It does not disclose the source of power under which it has been issued. At best, it can rely on the interim observations made by the High Court in the proceedings pending at the relevant time. Those observations cannot confer power on the State Authorities when no such power exists in the State Government in relation to modification/reduction of fee structure determined by the school Management and approved by the SLFC. Moreover, it is well­established that there can be no rigid uniform fee structure for all the private unaided schools in the State. The High Court had erroneously assumed that the power exercised by the Director, Secondary Education was ascribable to Article 162 of the Constitution. For, the subject of school fees is fully covered and governed by the provisions of the Act of 2016 and the Rules framed thereunder. Therefore, in the name of policy decision, the impugned order dated 28.10.2020 cannot be sustained, which on the face of it is not in conformity with the express statutory provisions governing the subject of school fees. 64. It is urged that there was no express provision in the Act of 2016 permitting such intervention by the State Authorities in respect of school fees already fixed under the Act of 2016. Reliance placed on Section 18 of the Act of 2016 was completely inapposite as that merely confers power upon the State Government to issue directions consistent with the provisions of the Act of 2016 and for carrying out the purposes of that Act or for giving effect to any of the provisions of that Act. Thus, recourse cannot be taken by the State Authorities to the provisions of the Act of 2016 much less Section 18 to justify the impugned order dated 28.10.2020. In any case that order, on the face of it, is unreasonable, arbitrary and irrational. For, Section 8 provides for the parameters for determination of school fee and admittedly the school fee had already been fixed by the SLFC on 28.10.2017 which was still in force and applicable for the academic year 2020­21 as well. Therefore, it was not open to reduce the same much less limit it to only one parameter of tuition fee amongst other parameters referred to in Section 8. 65. It is urged that reliance placed on Section 18 of the Act of 2016 is completely ill­advised. There is no mechanism in the Act of 2016 to review or reduce the school fees once approved by the SLFC or determined by the Statutory Regulatory Authorities. On the other hand, as per Section 6(3) such school fee is binding on all concerned for three academic years, which in the present case was to remain in force until the academic year 2020­21. Further, the reduction of school fees has been erroneously linked to the instructions issued by the concerned Board. In fact, the Board had issued directives to complete the course including through online training/teaching. Moreover, there is no concept of “capacity building fee” under the Act of 2016. The expression “capacity building” obviously has been borrowed from the legislation such as the Act of 2005. In any case, it is necessary to make factual enquiry school wise as to whether the concerned school had completed the entire syllabus for the relevant academic year; and also, whether the liability of the school towards teaching and non­ teaching staff and their administrative and infrastructure (recurring) expenses, had been discharged by the school 66. It is then urged that the High Court committed manifest error in upholding the impugned order dated 28.10.2020 as being ascribable to exercise of power under the Act of 2005. For, the stated Act provides express mechanism as to when and by whom the power to issue directions can be exercised. The Director, Secondary Education has no such power under the Act of 2005 nor the State Government could do so thereunder much less to reduce the school fees fixed after approval of the SLFC in terms of the mechanism stipulated under the Act of 2016. The provisions of the Act of 2005 are limited to providing effective management of disasters and for matters connected therewith or incidental thereto. 67. The manner and method of addressing such disaster and in particular “disaster management” as defined in Section 2(e) of the Act of 2005 is by preparation of a plan for disaster management by the authority concerned under that Act. A National Plan, State Plan or District Plan is required to be prepared under the Act of 2005. That is in respect of prevention of disasters or mitigation of their effects. It is the direct effect of disaster that is required to be mitigated and not indirect hardship caused to individuals much less in respect of contractual matters. The plan must advert to the measures to be taken for the integration of mitigation measures in the development plans and the measures to be taken for preparedness and capacity building to effectively respond to any threatening disaster situations or disaster including the roles and responsibilities of different Ministries or Departments of the Government of India. In any case, the action is to be initiated by the State Authorities, established under the Act of 2005, namely, the Disaster Management Authority at the concerned level. In the scheme of the Act of 2005, there is nothing to indicate that the Authorities can interfere with contractual matters or indirect hardships — such as inability of parents to pay school fees due to pandemic situation. The Director, Secondary Education, in no way, is concerned with the preparation of a disaster plan or its enforcement and implementation under the Act of 2005. As a result, the order dated 28.10.2020 cannot be sustained with reference to the provisions of the Act of 2005. The provision in the form of Section 72 of the Act of 2005 is also of no avail because the same is in reference to the provisions of the Act, which, as aforesaid, in no way apply to the subject of fixation and collection of school fees. That subject is exclusively governed under the Act of 68. Even the invocation of provisions of the Rajasthan Epidemic Diseases Act, 202022 by the State to justify the stated order has been stoutly refuted by the appellants. The powers required to be exercised by the State Government under the Act of 2020 are delineated in Section 4 of the Act of 2020. None of these measures (referred to in Section 4) concern the subject of determination of school fees much less reduction of school fees once it is approved by the SLFC and is in force for the concerned academic year. The general provision in Section 4(2)(g) permitting the Government to 22 for short, “the Act of 2020” regulate or restrict the functioning of offices, Government and private and educational institutions in the State, would not give authority to the State Government to decide about the fee structure of the concerned unaided private school. The regulation can be in regard to the timings when the school should be opened and closed and the protocol to be followed by the school during the working hours, as the case may be. That provision does not empower the State Government to reduce the school fees which is approved by the SLFC and is in force for the concerned academic year. 69. According to the appellants neither the order dated 28.10.2020 issued by the Director, Secondary Education can be sustained in law nor the reasons weighed with the Division Bench of the High Court in the impugned judgment to uphold the same can stand the test of judicial scrutiny. 70. Learned counsel for the minority private unaided school additionally contended that the order issued by the Director, Secondary Education violates the fundamental rights guaranteed under Article 19(1)(g) as well as Article 30(1) of the Constitution. That the right to fix the school fees is a fundamental right under Articles 19(1)(g) and 30 of the Constitution which cannot be regulated by the State except for preventing profiteering and capitation fee. To buttress his submission, reliance was placed on the dictum in T.M.A. Pai Foundation23 (supra), P.A. Inamdar24 (supra) and Modern School25 (supra). He would submit that in the case of minorities, the State regulation on minority right has to satisfy a dual test — the test of reasonableness and the test that it is regulative of the educational character of the institution and is conducive to make the institution an effective vehicle of education for the minority community and for other persons to resort to it. Learned counsel has also relied upon the decision dated 20.05.2020 of the Delhi High Court in the case of Ramjas School vs. Directorate of Education26 wherein the High Court noted that in the case of unaided educational institutions, availability of surplus is no ground to disapprove the fee hike. Absent any charging of capitation fee/profiteering, the State Authorities cannot reject the fee proposal of the school Management and that the quantum of fee to be charged is an element of administrative functioning of the 26 Writ Petition (C) No.9688 of 2018 (paras 66, 78, 88 and 91) school, over which the autonomy of the unaided educational institution cannot be compromised. He has also placed reliance on the decision of the Delhi High Court in Naresh Kumar vs. Director of Education, Delhi27 decided on 24.04.2020. He then invited our attention to the decision of this Court in Pramati Educational and Cultural Trust (Registered) & Ors. vs. Union of India & Ors.28 wherein the Constitution Bench opined that the RTE Act will not apply to minority educational institutions. Whereas, non­ minority institutions are bound by the RTE Act to provide 25 per cent admission to economically weaker sections of the society and to get reimbursement from the Government towards unit cost. In substance, he has iterated the argument that the school Management(s) of private unaided schools has a right to fix their fee structure and to collect school fees as approved by the SLFC or the 71. Per contra, learned counsel appearing for the State and representing the parents submit that due to extraordinary and unprecedented situation arisen due to complete lockdown for such 27 Writ Petition (C) No.2993 of 2020 (paras 18 to 21) a long period, the parents are not in a position to pay the fixed school fees. It is only because of large number of representations made by them, the State Government responded by issuing orders on 09.04.2020 and later on 07.07.2020 to defer the payment of school fees and finally to reduce the school fees in terms of order dated 28.10.2020 issued by the Director, Secondary Education. The dispensation provided in the order dated 28.10.2020 is merely to take mitigating measures and to assuage the concerns of the parents who were in dire need of such assistance. The measures taken by the State Government in terms of Sections 38 and 39 of the Act of 2005, cast onerous responsibility upon the Government to take all measures for mitigation and capacity building in the wake of a pandemic. These provisions must be given widest meaning as narrow construction would result in curtailing the powers of a welfare State to undertake measures for dealing with the unprecedented situation. The spirit of the provisions must be kept in mind and the court must uphold the validity of the impugned order which has been issued in larger public interest. Reliance has been placed on the dictum of this Court in the State of M.P. & Ors. vs. Nandlal Jaiswal & Ors. 29and Pathan Mohammed Suleman Rehmatkhan vs. State of Gujarat & Ors.30, to buttress this submission. 72. According to the respondents, Section 72 of the Act of 2005 gives an overriding effect over all other laws and, therefore, the power of the State Government exercised in terms of Sections 38 and 39 in respect of measures articulated therein, need not be constricted keeping in mind the language of the said provisions. In other words, all that is required to be done by the State to assuage the concerns of the society and citizenry related to the situation arisen from the lockdown due to pandemic, is permissible within the meaning of the said provisions. 73. It is urged that mere omission to mention the source of power will not invalidate the exercise of power itself as long as there is a valid source to that exercise of power as noted by this Court in High Court of Gujarat & Anr. vs. Gujarat Kishan Mazdoor Panchayat & Ors.31, M.T. Khan & Ors. v. Govt. of A.P. & Ors.32 and N. Mani vs. Sangeetha Theatre & Ors.33. 74. It is then urged that the order dated 28.10.2020 was necessitated and was in furtherance of the observations made by the Division Bench vide order dated 23.10.2020. That was, obviously, to fulfil the parens patriae obligations of the court as well as of the State. It is urged that the State has a legitimate interest under its parens patriae powers in providing care to its citizens and since the direction issued is to fulfil that obligation which was necessitated because of the unprecedented situation coupled with the fact that even the High Court had expressed a benign hope that the State Government ought to find out some arrangement, it became necessary to issue direction vide order dated 28.10.2020. Such power could be exercised even as a policy matter and the State Government is competent to do so under Article 162 of the 75. It is also urged that the direction given by the Director, Secondary Education vide order dated 28.10.2020 could be issued by the State in exercise of power under Section 18 of the Act of 2016 and hence, no fault can be found with the State Government having exercised that power. 76. It is urged on behalf of State that the issue in the present appeals is limited to the justness of the order dated 28.10.2020 and, therefore, the direction given to the State in the interim order passed by this Court on 08.02.2021 to ensure that all government outstanding dues towards unit cost payable to respective unaided school are settled within one month from the date of the order, was inapposite and needs to be recalled. It is urged that computation of the unit cost is complex and assessment thereof is a time­ consuming process. 77. Learned counsel for the State in his written submission has finally suggested to modulate the relief to be given in these appeals “5. Re: Modulation of the relief in the present matter  The initial notification issued by the State Government on 09.04.2020 and 07.07.2020 have outlived its utility and worked itself out. The Constitutional Courts do not pronounce upon any academic matter. The validity of the Circular dated 09.04.2020 and 07.07.2020 have become academic in wake of subsequent events.  The order dated 28.10.2020 can also become passed if following relief, with utmost humility, is granted: (a) The management of each school shall propose the fee structure in terms of Section 6(1) and place it before the school­level committee within a period of 15 days from the date of judgment of this Hon’ble Court. This shall be exclusively for Covid Year (2020­2021) irrespective of earlier determination of fees. (b) The management shall take into account the special circumstances of the COVID and curtailment of expenses during COVID along with the factors mentioned in Section 8 of the Act of 2016. The management shall be reasonable and explain expenditure under each head as enjoined by the statute. Section 6(4) read in conjunction with Section 8 of the Act. (c) The school­level fee committee will approve the fee within a period of 30 days. (d) There shall be compulsory fixation of fee for COVID year 2020­21 separately (alone) for each school in accordance with the provisions of the Act of 2016. (e) The fixation of fee for 2021­22 can, thereafter, take place normally in accordance with the provisions of the Act of 2016.  Thus, the final school fee shall come into existence for the COVID year 2020­21 within a period of 45 days from the date of judgment of this Hon’ble Court and the order of 28.10.2020 interim order passed by this Hon’ble Court shall subsume in the same.” 78. According to Ms. Pragya Baghel, learned counsel representing the parents, the State Government had not followed proper procedure for determination of 70 per cent of the tuition fees and that decision is not backed by any tangible material on record. Moreover, the impugned decision was taken without giving opportunity to the stakeholders, in particular the parents’ association. For which reason, such a decision should not be allowed to be taken forward by the State Government. It is then urged that the action taken under the Act of 2005 was obviously in larger public interest and being a policy decision would not be amenable to judicial review. In any case, the appropriate course would be to relegate the parties before a special Committee comprising of a retired Judge of the High Court, one Chartered Accountant and retired Teachers/Officers nominated by the Director of Public Education Board, who can take an appropriate decision after hearing all the stakeholders. 79. A written submission has also been filed on behalf of parents (by Mr. Sushil Sharma and others) contending that online classes are not a recognised form of education and that is being done by the private schools on their own without any defined syllabus by the Board. No planning or infrastructure required for online education is in place. No permission has been obtained by the private schools to conduct online classes from the concerned Boards nor any feedback is taken from the parents about the efficacy of the online teaching. It is urged that there is no uniformity in the teaching methodology or any standard operating procedure or protocol prescribed by the concerned Boards to be followed by the private schools. The focus is essentially on the disadvantage of online classes conducted by the private schools. It is also urged in the written submission that the recommendation made by the State Government and recognition of online classes as capacity building classes are inappropriate. At the end, it is urged that this Court ought to direct waiver of complete fees for the duration schools were closed and direct the State to prescribe a fixed fee for online classes to a standard uniform charge on par with NOIS across schools and to declare exams taken by the schools so far as invalid in law and to issue such other direction as may be necessary. 80. Another written submission filed for the intervener ­ Mr. Charanpal Singh Bagri, claiming to be parent in a private school in the State of Punjab. He has raised several issues including the questions pertaining to the matters concerning the schools in the State of Punjab which are sub judice. In our opinion, it is not necessary to dilate on this written submission as the present appeals pertain to the issues concerning the private unaided schools in the State of Rajasthan governed by the Act of 2016 and the Rules framed thereunder. It will be open to the intervener to pursue all the points raised in the written submission in the proceedings pending in the High Court or this Court concerning the private schools in the State of Punjab. We may not be understood to have expressed any opinion in that regard. 81. We also have the benefit of written submission filed by Mr. Sunil Samdaria, appearing in­person who has essentially commended us to uphold the impugned judgment and order dated 18.12.2020 of the High Court of Rajasthan and seeking directions to further reduce the school fees below the percentage specified in the order dated 28.10.2020 and as upheld by the High Court. In fact, he has gone to the extent of suggesting that no fee should be charged for the period the schools have remained closed in the academic session 2020­21 as that would result in profiteering by the school Management. According to this respondent, the schools have saved colossal amount of money towards electricity charges, water charges, stationary charges and other miscellaneous charges which are required for physical running of the school and which may not be collected by the school for the relevant period. 82. When the hearing of these appeals was in progress considering the urgency involved, we thought it appropriate to pass interim directions which were intended to address the concerns of all parties in some measure. That order was passed on 08.02.2021, List the matter on 15th February, 2021. Diary No(s). 44/2021 (XV), SLP (C) No. 577­579/2021 and Special Leave Petition (C) Diary No. 3533 of 2021 is taken up along with these matters, at the request of the petitioners therein. The hearing of these cases has been commenced and is part heard. But, since the hearing is likely to take some more time, we deem it appropriate to pass interim directions which will address the concerns of all parties in some measure. We propose to stay the impugned order on the following (a) The management/school may collect fees for the academic year 2019­2020 as well as 2020­2021 from the students, equivalent to fees amount notified for the academic year 2019­2020, in six monthly installments commencing from 5th March, 2021 and ending on 5th (b) The Management shall not debar any student from attending either online classes or physical classes on account of non­payment of fees, arrears/outstanding fees including the installments, referred to above, and shall not withhold the results of the examinations of any student on that account. (c) Where the parents have difficulty in remitting the fee in terms of this interim order, it will be open to those parents to approach the school concerned by an individual representation and the management of the school will consider such representation on a case­to­case basis sympathetically. (d) The above arrangement will not affect collection of fees for the academic year 2021­2022, which would be payable by the students as and when it becomes due and payable, and as notified by the management/school. (e) In respect of the ensuing Board examinations for classes X and XII (to be conducted in 2021) the school management shall not withhold the name of any student/candidate on the ground of non­payment of the fee/arrears, if any, on obtaining undertaking of the concerned parent/student. (f) The above arrangements would be subject to the outcome of these matters including the final directions to be given to the parties and without prejudice to the rights and contentions of the parties in these proceedings. (g) We also direct the State of Rajasthan to ensure that all government outstanding dues towards unit cost payable to respective unaided schools are settled within one month from the today and, in any case, before 31st Ordered accordingly. Heard in part. Hearing of the aforesaid cases, shall continue on 15th 83. Learned counsel appearing for the appellants had stated that if the Court were to make this interim arrangement absolute, the appellants would be satisfied with such a direction. However, as aforesaid, the respondents, namely, the State Government and the parents have a different perception and have addressed us fully to oppose grant of any relief to the appellants. 84. We have heard Mr. Pallav Shishodia, Mr. Shyam Divan, learned senior counsel, Mr. Puneet Jain and Mr. Romy Chacko, learned counsel for the appellants, Dr. Manish Singhvi and Mr. Devadatt Kamat, learned senior counsel for the State of Rajasthan and Mr. Sunil Samdaria, in­person. 85. At the outset, in this judgment we consciously opt to limit our analysis to the challenge/grounds concerning the legality and justness of the order dated 28.10.2020 issued by the Director, Secondary Education concerning private unaided schools in the State of Rajasthan and as applicable to the academic year 2020­21 only. We do not wish to advert to or analyse any other issue raised by the parties and we may not be understood to have expressed any opinion either way in that regard. 86. Undeniably, an unprecedented situation has had evolved on account of complete lockdown due to pandemic. It had serious effect on the individuals, entrepreneurs, industries and the nation as a whole including in the matter of economy and purchasing capacity of one and all. A large number of people have lost their jobs and livelihood as aftermath of such economic upheaval. The parents who were under severe stress and even unable to manage their day­to­day affairs and the basic need of their family made fervent representation to the school Management(s) across the State. A public discourse in that regard surfaced in the media which impelled the political dispensation to intervene. Thus, on the directions of the Chief Minister of the State of Rajasthan, the Department initially issued order dated 09.04.2020 merely to defer the collection of school fees which restriction was extended by subsequent order dated 07.07.2020. 87. The matter had reached the High Court and by way of interim arrangement, learned Single Judge of the High Court issued certain directions against which the parties approached the Division Bench of the High Court by way of intra­court appeals. During the pendency of intra­court appeals in deference to the observations of the court, the State Authority proceeded to issue further order on 28.10.2020, which, essentially is the subject matter of assail in these appeals. 88. The State cannot be heard to rest its argument to defend the impugned order dated 28.10.2020 as having been issued in light of benign hope expressed by the High Court. It could do so only if the law permitted the State Government to intervene on the subject of school fees of private unaided schools (minority or non­minority, as the case may be). Resultantly, what we need to examine in these appeals is whether order dated 28.10.2020 issued by the Director, Secondary Education can be sustained in law. 89. Although the stated order makes no reference to the source of power under which it had been issued, four different perspectives have been invoked by the State to justify the exercise of that power. First, it is competent to do so under Section 18 of the Act of 2016 itself. Second, being a policy decision, it could issue an executive direction to mitigate the concerns of the parents in exercise of power under Article 162 of the Constitution. Third, such power can be exercised by the State Government for mitigating the concerns of the parents and for capacity building of the stakeholders as one of the measures under the Act of 2005. Lastly, such direction could be issued also in exercise of power under the Act of 2020 by the 90. We now proceed to test the correctness of the pleas taken by the State Government in seriatim. 91. The source of power derived from Section 18 of the Act of 2016 is a flimsy argument. Section 18 of the Act of 2016 reads thus: “18. Power to issue directions. ­ The State Government may issue to any school such general or special directions consistent with the provision of this Act and the rules made thereunder as in its opinion are necessary or expedient for carrying out the purposes of this Act or for giving effect to any of the provisions contained therein or in any rules or orders made thereunder and the management of the school shall comply with every such direction.” This provision does bestow power on the State Government to issue general or special directions to any school within the State. However, such direction must be consistent with the provisions of the Act of 2016 and the Rules framed thereunder. It cannot be in conflict with the mandate of the Act and the Rules. Additionally, such directions must be necessitated due to expediency for carrying out the purposes of the Act and the Rules or to give effect to the applicable provisions. If the direction issued by the State Government does not qualify these parameters, it must follow that the same has been issued in excess of power bestowed under Section 18 of the Act of 2016. 92. After analysing the scheme of the Act of 2016, at least two aspects are amply clear. The first is that a firm mechanism has been specified under the Act of 2016 regarding determination of fee structure in the form of approval by the SLFC and, if required, adjudication by the DFRC and the Revision Committee. There is no express provision in the Act or Rules authorising the stated functionaries/authorities to modify the school fees once finalised in the manner provided by the Act of 2016. Whereas, the explicit mandate in the Act of 2016 is that, the fees so fixed by the concerned functionaries/authorities shall be binding on all concerned for three academic years. This is a clear indication of not altering the school fees unilaterally after it is fixed under the Act of 2016 in any manner for the specified period. If we may say so, it is in the nature of prohibition or a mandate to continue the same fee structure for at least three academic years, after it is fixed by the concerned authority under the Act. By its very nature, the direction given by the State Government is in conflict with the scheme of finalisation of fee structure under the Act of 2016 and also the binding effect thereof for the specified period of three academic years on all concerned. Thus understood, the direction issued by the State Government in the form of order dated 28.10.2020 does not satisfy the twin tests of being consistent with the provisions of the Act; and also being necessary or expedient for carrying out the purposes of the Act, as the case may be. 93. Suffice it to observe that the order dated 28.10.2020 being in the nature of direction, has been issued in breach of the pre­ conditions specified in Section 18 of the Act of 2016. As a matter of law, the State Government had no power, whatsoever, to interdict the fee structure much less which has been finalised and fixed by the concerned functionaries/authorities under the Act of 2016 itself before expiry of the statutory period as specified. As a result, Section 18 of the Act of 2016 will be of no avail to the respondents, in particular the State Government to justify the order dated 94. A fortiori, even the argument of the respondents relying upon the existence of executive power under Article 162 of the Constitution, ought to fail. It is well­established position that the executive power of a State under Article 162 of the Constitution extends to the matters upon which the legislature of the State has competency to legislate and is not confined to matters over which legislation has already been passed. It is also well­settled that the State Government cannot go against the provisions of the Constitution or any law. The subject of determination of fee structure and whether it entails in profiteering, is already covered by the legislation in the form of the Act of 2016 and the Rules framed thereunder. It is not as if there is no enactment covering that subject or any incidental aspects thereof. The Act of 2016, which in itself is a self­contained code on the said subject, not only provides for the manner in which the concerned school ought to finalise its fee structure, but also declares that the fee so finalised either by consensus or through adjudication mode shall be binding on all concerned for a period of three academic years. In any case, determination of fees including reduction thereof is the exclusive prerogative of the management of the private unaided school. The State can provide independent mechanism only to regulate that decision of the school Management to the extent that it does not result in profiteering and commercialisation. 95. Viewed thus, reliance placed on Union of India vs. Moolchand Kharaiti Ram Trust34 will be of no avail. In that case, the hospitals were obligated to render free treatment in lieu of allotment of government land to them for earning no profit and held in trust for public good. The Court opined that there was no necessity of enacting a law and the policy formulated by the State Government in that regard cannot be disregarded. 96. In the present case, we need not dilate on the factum as to whether the Director, Secondary Education could have issued such a policy document in exercise of executive power under Article 162 of the Constitution, which power exclusively vests in the State Government alone. The fact remains that the direction issued in terms of impugned order dated 28.10.2020, on the face of it, collide with the dispensation specified in the Act of 2016 in the matter of determination of school fees and its binding effect on all concerned for a period of three academic years, without any exception. The fact that in the proceedings before the High Court the State Government had ratified the impugned order, does not take the matter any further. In that, there can be no ex post facto ratification by the State Government in respect of subject, on which, it itself could not issue such direction in law. 97. Even the exposition in Rai Sahib Ram Jawaya Kapur & Ors. vs. State of Punjab35 and Secretary, A.P.D. Jain Pathshala & Ors. vs. Shivaji Bhagwat More & Ors. 36 will not come to the aid of the respondents for the same reasons. Notably, not only the subject of finalisation of fee structure and the matters incidental thereto have been codified in the form of the Act of 2016, but also a law has been enacted to deal with the matters during the pandemic situation in the form of Central Act, namely, the Act of 2005 including the State legislation i.e., the Act of 2020. In fact, the State legislation deals with the subject of epidemic diseases and its management. Even those enactments do not vest any power in the State Government to issue direction with regard to commercial or economic aspects of matters between private parties with which the State has no direct causal connection, which we shall examine later at the appropriate place. In other words, the power of the State Government to deal with matters during the pandemic situation have already been delineated by the Parliament as well as the State legislature. 98. As such, it is not open to the State Government to issue directions in respect of commercial or economic aspects of legitimate subsisting contracts/transactions between two private parties with which the State has no direct causal connection, in the guise of management of pandemic situation or to provide “mitigation to one” of the two private parties “at the cost of the other”. This is akin to – rob Peter to pay Paul. It is a different matter, if as a policy, the State Government takes the responsibility to subsidise the school fees of students of private unaided schools, but cannot arrogate power to itself much less under Article 162 of the Constitution to issue impugned directions (to school Management to collect reduced school fee for the concerned academic year). We have no hesitation in observing that the asservation of the State Government of existence of power to issue directions even in respect of economic aspects of legitimate subsisting contracts/transactions between two private parties, if accepted in respect of fee structure of private unaided schools, is fraught with undefined infinite risk and uncertainty for the State. For, applying the same logic the State Government may have to assuage similar concerns in respect of other contractual matters or transactions between two private individuals in every aspect of life which may have bearing on right to life guaranteed under the Constitution. That would not only open pandora’s box, but also push the State Government to entertain demands including to grant subsidy, from different quarters and sections of the society in the name of mitigating measures making it financially impossible and unwieldy for the State and eventually burden the honest tax payers ­ who also deserve similar indulgence. Selective intervention of the State in response to such demands may also suffer from the vice of discrimination and also likely to impinge upon the rights of private individual(s) — the supplier of goods or service provider, as the case may be. The State cannot exercise executive power under Article 162 of the Constitution to denude the person offering service(s) or goods of his just claim to get fair compensation/cost from the recipient of such service(s) or goods, whence the State has no direct causal relationship therewith. 99. It is one thing to say that the State may regulate the fee structure of private unaided schools to ensure that the school Management does not indulge in profiteering and commercialisation, but in the guise of exercise of that power, it cannot transcend the line of regulation and impinge upon the autonomy of the school to fix and collect “just” and “permissible” school fees from its students. It is certainly not an essential commodity governed by the legislation such as Essential Commodities Act, 1955 empowering the State to fix tariff or price thereof. In light of consistent enunciation by this Court including the Constitution Bench, that determination of school fee structure (which includes reduction of fixed school fee for the relevant period) is the exclusive prerogative of the school Management running a private unaided school, it is not open to the Legislature to make a law touching upon that aspect except to provide statutory mechanism to regulate fees for ensuring that it does not result in profiteering and commercialisation by the school Management. Ex­ consequenti, the State Government also cannot exercise power under Article 162 of the Constitution in that regard. 100. Notably, the direction given in the impugned order to the school Management is to collect only specified percentage of annual tuition fees on the assumption that the schools will not be required to complete the course for the academic year 2020­21. This assumption has been rebutted by the appellants by relying on the instructions issued by the concerned Board indicating to the contrary. In any case, that does not extricate the school Management from incurring recurring capital and revenue expenditure including to pay their academic and non­academic staff their full salary and emoluments for the relevant period. For, no corresponding authority is given to the school Management to deduct suitable amount from their salaries. Thus, the effect of the impugned order is to reduce school fees determined under the Act in absence of authority to do so including under the Act of 2016. Further, on the face of it, the direction given is inconsistent with the provisions of the stated Act. To put it tersely, the impugned order issued is in respect of matters beyond the power of the State Government ­ to regulate the fee structure for ensuring that the school Management does not indulge in profiteering and commercialisation. Accordingly, the impugned order dated 28.10.2020 cannot be sustained even in reference to executive power under Article 162 of the Constitution. 101. Reverting to the provisions of the Act of 2005, no doubt Section 72 thereof predicates that the provisions of the Act will have overriding effect on other laws for the time being in force or anything inconsistent in any instrument having effect by virtue of any law other than the Act of 2005. This provision, however, would come into effect only if it is to be held that the Statutory Authorities under the Act of 2005 have power to deal with the subject of school fee structure of private unaided schools. 102. For that, we may usefully refer to Section 23 of the Act of 2005 which provides for the contents of the plan for disaster management to be prepared for every State called the State Disaster Management “23. State Plan.— (1) There shall be a plan for disaster management for every State to be called the State Disaster (2) The State Plan shall be prepared by the State Executive Committee having regard to the guidelines laid down by the National Authority and after such consultation with local authorities, district authorities and the people's representatives as the State Executive Committee may deem (3) The State Plan prepared by the State Executive Committee under sub­section (2) shall be approved by the (a) the vulnerability of different parts of the State to (b) the measures to be adopted for prevention and (c) the manner in which the mitigation measures shall be integrated with the development plans and projects; (d) the capacity­building and preparedness measures to (e) the roles and responsibilities of each Department of the Government of the State in relation to the measures specified in clauses (b), (c) and (d) above; (f) the roles and responsibilities of different Departments of the Government of the State in responding to any threatening disaster situation or disaster; (5) The State Plan shall be reviewed and updated annually. (6) Appropriate provisions shall be made by the State Government for financing for the measures to be carried out under the State Plan. (7) Copies of the State Plan referred to in sub­ sections (2) and (5) shall be made available to the Departments of the Government of the State and such Departments shall draw up their own plans in accordance with the State Plan.” 103. Going by the scheme of the Act of 2005, the State Authority established under Section 14 known as State Disaster Management Authority is expected to formulate policies and plans for disaster management in the State. Indeed, such policies and plans may include mitigation37 measures in respect of persons affected by disaster. The mitigation measures, however, are aimed merely for reducing the risk/impact or effects of a disaster or threatening disaster situation. Considering the sphere of functions of the State 37 Section 2(i) “mitigation” means measures aimed at reducing the risk, impact or effects of a disaster or threatening disaster situation; Authority including the State Executive Committee or different Authorities established at concerned level within the State, there is not even a tittle of indication that in the name of mitigating measures, the disaster management plan may comprehend issue of direction in respect of economic aspects of legitimate subsisting contracts or transactions between two private individuals with which the State has no direct causal relationship, and especially when the determination of compensation/cost/fees is the prerogative of the supplier or manufacturer of the goods or service provider of the services. The scheme of the Act of 2005 obligates the State Authority to assuage the concerns of the persons arising from “direct impact” of the disaster and to take mitigation measures to minimise the impact of such disaster and for that purpose, resort of capacity­building38 including of its own resources39 to wit, manpower, services, materials and provisions as noted in Section 2(p), and preparedness40 measures referred to in Section 2(m). It is 38 Section 2(b) “capacity­building” includes— (i) identification of existing resources and resources to be acquired or (ii) acquiring or creating resources identified under sub­clause (i); (iii) organisation and training of personnel and coordination of such training for 39 Section 2(p) “resources” includes manpower, services, materials and provisions; 40 Section 2(m) “preparedness” means the state of readiness to deal with a threatening disaster situation or disaster and the effects thereof; not possible to countenance the persuasive argument of the respondents that expansive meaning be assigned to the provisions of the Act of 2005 so as to include power to reduce school fees of private unaided school albeit fixed under the Act of 2016 and which by law is to remain in force until academic year 2020­21. 104. As is noticed from the preamble of the Act of 2005, it is to provide for the effective management of disasters and for matters connected therewith or incidental thereto. It extends to the whole of India. The Act is to establish Statutory Committees at different level for carrying out the purposes for which the Act has been enacted. It is essentially for effective management of disasters and for matters connected therewith or incidental thereto. The expression “disaster” has been defined in Section 2(d) of the Act of “2. Definitions.­ In this Act, unless the context otherwise (d) “disaster” means a catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or man made causes, or by accident or negligence which results in substantial loss of life or human suffering or damage to, and destruction of, property, or damage to, or degradation of, environment, and is of such a nature or magnitude as to be beyond the coping capacity of the community of the affected area;” 105. The Authorities created under the Act of 2005 are expected to deal with matters concerning the disaster management. The expression “disaster management” has been defined as follows: “2. Definitions.­ In this Act, unless the context otherwise (e) “disaster management” means a continuous and integrated process of planning, organising, coordinating and implementing measures which are necessary or expedient for (i) prevention of danger or threat of any disaster; (ii) mitigation or reduction of risk of any disaster or its (iv) preparedness to deal with any disaster; (v) prompt response to any threatening disaster situation or (vi) assessing the severity or magnitude of effects of any (viii) rehabilitation and reconstruction;” 106. It is also useful to advert to Section 18 of the Act of 2005 which provides for powers and functions of State Authority established under Section 14 consisting of Chief Minister of the State, who acts as Chairperson (Ex officio) and other Chairpersons of the respective Authorities. Section 18 reads thus: “18. Powers and functions of State Authority.— (1) Subject to the provisions of this Act, a State Authority shall have the responsibility for laying down policies and plans for disaster management in the State. (2) Without prejudice to the generality of provisions contained in sub­section (1), the State Authority may— (a) lay down the State disaster management policy; (b) approve the State Plan in accordance with the guidelines laid down by the National Authority; (c) approve the disaster management plans prepared by the departments of the Government of the State; (d) lay down guidelines to be followed by the departments of the Government of the State for the purposes of integration of measures for prevention of disasters and mitigation in their development plans and projects and provide necessary technical assistance (e) coordinate the implementation of the State Plan; (f) recommend provision of funds for mitigation and (g) review the development plans of the different departments of the State and ensure that prevention and mitigation measures are integrated therein; (h) review the measures being taken for mitigation, capacity building and preparedness by the departments of the Government of the State and issue such guidelines as may be necessary. (3) The Chairperson of the State Authority shall, in the case of emergency, have power to exercise all or any of the powers of the State Authority but the exercise of such powers shall be subject to ex post facto ratification of the State Authority.” 107. The obligation of the State Government for the purpose of disaster management can be culled out from Section 38, which “38. State Government to take measures.— (1) Subject to the provisions of this Act, each State Government shall take all measures specified in the guidelines laid down by the National Authority and such further measures as it deems necessary or expedient, for the purpose of disaster management. (2) The measures which the State Government may take under sub­section (1) include measures with respect to all or (a) coordination of actions of different departments of the Government of the State, the State Authority, District Authorities, local authority and other non­ (b) cooperation and assistance in the disaster management to the National Authority and National Executive Committee, the State Authority and the State Executive Committee, and the District Authorities; (c) cooperation with, and assistance to, the Ministries or Departments of the Government of India in disaster management, as requested by them or otherwise (d) allocation of funds for measures for prevention of disaster, mitigation, capacity­building and preparedness by the departments of the Government of the State in accordance with the provisions of the State Plan and the (e) ensure that the integration of measures for prevention of disaster or mitigation by the departments of the Government of the State in their development (f) integrate in the State development plan, measures to reduce or mitigate the vulnerability of different parts of (g) ensure the preparation of disaster management plans by different departments of the State in accordance with the guidelines laid down by the National Authority and (h) establishment of adequate warning systems up to (i) ensure that different departments of the Government of the State and the District Authorities take (j) ensure that in a threatening disaster situation or disaster, the resources of different departments of the Government of the State are made available to the National Executive Committee or the State Executive Committee or the District Authorities, as the case may be, for the purposes of effective response, rescue and relief in any threatening disaster situation or disaster; (k) provide rehabilitation and reconstruction assistance (l) such other matters as it deems necessary or expedient for the purpose of securing effective implementation of provisions of this Act.” 108. The corresponding responsibilities of departments of the State Government have been delineated in Section 39, which reads thus: “39. Responsibilities of departments of the State Government.— It shall be the responsibility of every department of the Government of a State to— (a) take measures necessary for prevention of disasters, mitigation, preparedness and capacity building in accordance with the guidelines laid down by the National Authority and the State Authority; (b) integrate into its development plans and projects, the measures for prevention of disaster and mitigation; (c) allocate funds for prevention of disaster, mitigation, (d) respond effectively and promptly to any threatening disaster situation or disaster in accordance with the State Plan, and in accordance with the guidelines or directions of the National Executive Committee and the (e) review the enactments administered by it, its policies, rules and regulations with a view to incorporate therein the provisions necessary for prevention of disasters, (f) provide assistance, as required, by the National Executive Committee, the State Executive Committee (i) drawing up mitigation, preparedness and response plans, capacity­building, data collection and identification and training of personnel in relation to (ii) assessing the damage from any disaster; (iii) carrying out rehabilitation and reconstruction; (g) make provision for resources in consultation with the State Authority for the implementation of the District Plan by its authorities at the district level; (h) make available its resources to the National Executive Committee or the State Executive Committee or the District Authorities for the purposes of responding promptly and effectively to any disaster in (i) providing emergency communication with a (ii) transporting personnel and relief goods to and from (iii) providing evacuation, rescue, temporary shelter or (iv) carrying out evacuation of persons or live­stock from an area of any threatening disaster situation or (v) setting up temporary bridges, jetties and landing (vi) providing drinking water, essential provisions, healthcare and services in an affected area; (i) such other actions as may be necessary for disaster management.” 109. The State Executive Committee constituted under the Act of 2005 vide Section 20 is obligated to discharge the functions delineated in Section 22 of the Act. The same reads thus: “22. Functions of the State Executive Committee.— (1) The State Executive Committee shall have the responsibility for implementing the National Plan and State Plan and act as the coordinating and monitoring body for management of disaster in the State. (2) Without prejudice to the generality of the provisions of sub­section (1), the State Executive Committee may— (a) coordinate and monitor the implementation of the National Policy, the National Plan and the State Plan; (b) examine the vulnerability of different parts of the State to different forms of disasters and specify measures to be taken for their prevention or mitigation; (c) lay down guidelines for preparation of disaster management plans by the departments of the Government of the State and the District Authorities; (d) monitor the implementation of disaster management plans prepared by the departments of the Government (e) monitor the implementation of the guidelines laid down by the State Authority for integrating of measures for prevention of disasters and mitigation by the departments in their development plans and projects; (f) evaluate preparedness at all governmental or non­ governmental levels to respond to any threatening disaster situation or disaster and give directions, where necessary, for enhancing such preparedness; (g) coordinate response in the event of any threatening (h) give directions to any Department of the Government of the State or any other authority or body in the State regarding actions to be taken in response to any threatening disaster situation or disaster; (i) promote general education, awareness and community training in regard to the forms of disasters to which different parts of the State are vulnerable and the measures that may be taken by such community to prevent the disaster, mitigate and respond to such (j) advise, assist and coordinate the activities of the Departments of the Government of the State, District Authorities, statutory bodies and other governmental and non­governmental organisations engaged in (k) provide necessary technical assistance or give advice to District Authorities and local authorities for carrying (l) advise the State Government regarding all financial matters in relation to disaster management; (m) examine the construction, in any local area in the State and, if it is of the opinion that the standards laid for such construction for the prevention of disaster is not being or has not been followed, may direct the District Authority or the local authority, as the case may be, to take such action as may be necessary to secure (n) provide information to the National Authority relating to different aspects of disaster management; (o) lay down, review and update State level response plans and guidelines and ensure that the district level plans are prepared, reviewed and updated; (p) ensure that communication systems are in order and the disaster management drills are carried out (q) perform such other functions as may be assigned to it by the State Authority or as it may consider necessary.” 110. Having regard to the purport of the Act of 2005, it is unfathomable as to how the State Authorities established under the stated Act can arrogate unto themselves power to issue directions to private parties on economic aspects of legitimate subsisting contractual matters or transactions between them inter se. In any case, the impugned order has not been issued by the State Authority referred to in the Act of 2005. It is not enough to say that the same was issued under the directions of the Chief Minister of the State. For, the Chief Minister is only the Chairperson (Ex officio) of the State Disaster Management Authority established under Section 14 of the Act of 2005. Suffice it to observe that there is no provision in the Act of 2005 which concerns or governs the subject of interdicting the school fee structure fixed under the Act of 2016. 111. Section 72 of the Act of 2005 was pressed into service. However, that cannot be the basis to justify the impugned order dated 28.10.2020. Section 72 reads thus: “72. Act to have overriding effect.— The provisions of this Act, shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.” The Act of 2005 is not a panacea for all difficulties much less not concerning disaster management [Section 2(e)] as such. As noted earlier, there is no express provision in the Act of 2005 which empowers the Director, Secondary Education (or the State Government) to issue order and directions in respect of school fee structure because of the pandemic situation. 112. For the same reasons, reliance placed on the provisions of the State legislation, namely, the Act of 2020 dealing with epidemic diseases will be of no avail to justify the impugned order dated 28.10.2020 issued by the Director, Secondary Education. The power to take special measures and specify regulation as to epidemic disease can be exercised by the State Government under Section 4 of the Act of 2020. Section 4 reads thus: “4. Power to take special measures and specify regulations as to epidemic disease.— (1) When at any time the Government is satisfied that the State or any part thereof is visited by or threatened with an outbreak of any epidemic disease, the Government may take such measures, as it deems necessary for the purpose, by notification in the Official Gazette, specify such temporary regulations or orders to be observed by the public or by any person or class of persons so as to prevent the outbreak of such epidemic disease or the spread thereof and require or empower District Collectors to exercise such powers and duties as may be specified in the said regulations or orders. (2) In particular and without prejudice to the generality of the foregoing provisions, the Government may take (a) to prohibit any usage or act which the Government considers sufficient to spread or transmit epidemic diseases from person to person in any gathering, celebration, worship or other such activities within the (b) to inspect the persons arriving in the State by air, rail, road or any other means or in quarantine or in isolation, as the case may be, in hospital, temporary accommodation, home or otherwise of persons suspected of being infected with any such disease by the officer authorized in the regulation or orders; (c) to seal State Borders for such period as may be (d) to impose restrictions on the operation of public and (e) to prescribe social distancing norms or any other instructions for the public to observe that are considered necessary for public health and safety on (f) to restrict or prohibit congregation of persons in public places and religious institutions or places of (g) to regulate or restrict the functioning of offices, Government and private and educational institutions in (h) to impose prohibition or restrictions on the functioning of shops and commercial and other offices, establishments, factories, workshops and godowns; (i) to restrict duration of services in essential or emergency services such as banks, media, health care, food supply, electricity, water, fuel etc. ; and (j) such other measures as may be necessary for the regulation and prevention of epidemic diseases as decided by the Government.” The measures enunciated in Section 4 of the Act of 2020 in no way deal with the “tariffs” of air, rail, road, hospital, temporary accommodation. It only enables the Authority to prohibit any usage or activities which the Government considers sufficient to spread or transmit epidemic diseases and for that purpose to inspect various places suspected of being infected with such diseases. Indeed, it can regulate or restrict the functioning of offices, Government and private and educational institutions in the State. That, however, would be only in respect of manner of its use and its timings including to observe standard operating procedures to ensure that epidemic diseases do not transmit or spread on account of activities carried out therein. That power to regulate cannot be invoked to control the tariffs, fees or cost of goods and services and in particular economic aspects of contractual matters between two private parties or so to say school fees of private unaided schools. Accordingly, even the last point urged by the State to justify the impugned order dated 28.10.2020 falls to the ground. 113. A priori, it must follow that the Director, Secondary Education had no authority whatsoever to issue direction in respect of fee structure determined under the Act of 2016 including to reduce the same for the academic year 2020­21 in respect of private unaided schools. Having failed to trace the legitimate source of power under which the directions have been issued, as aforesaid, the respondents ­ State Authorities cannot fall back upon the benign hope expressed by the High Court to do the needful in the backdrop of the representations made by several parents about the difficulties encountered by them due to pandemic situation. It would have been a different matter if the Director, Secondary Education had used his good offices to impress upon the school management(s) of the concerned school(s) to explore the mitigating measures/options on their own for the academic year 2020­21 and to give concession to their students to the extent possible at least in respect of unutilised facilities and savings on overheads by the school Management in that behalf or to give concession in the form of scholarship to deserving students. It is stated by the appellants that the school Management on their own had offered scholarship of 25 per cent of the annual fee to their students. In other words, the Director, Secondary Education could have mediated between the Association of the school Management and representatives of the Parent­Teachers Association for arriving at an amicable solution due to pandemic situation for the academic year 2020­21, on humanitarian grounds, but could not issue the impugned order when even the State had no power to issue the same. 114. Accordingly, the appellants are justified in assailing the order dated 28.10.2020 issued by the Director, Secondary Education and must succeed. However, that does not give licence to the appellants to be rigid and not be sensitive about aftermath of pandemic. The school Management supposedly engaged in doing charitable activity of imparting education, is expected to be responsive and alive to that situation and take necessary remedial measures to mitigate the hardship suffered by the students and their parents. It is for the school Management to reschedule payment of school fee in such a way that not even a single student is left out or denied opportunity of pursuing his/her education, so as to effectuate the adage “live and let live”. 115. In law, the school Management cannot be heard to collect fees in respect of activities and facilities which are, in fact, not provided to or availed by its students due to circumstances beyond their control. Demanding fees even in respect of overheads on such activities would be nothing short of indulging in profiteering and commercialisation. It is a well­known fact and judicial notice can also be taken that, due to complete lockdown the schools were not allowed to open for substantially long period during the academic year 2020­21. Resultantly, the school Management must have saved overheads and recurring cost on various items such as petrol/diesel, electricity, maintenance cost, water charges, stationery charges, etc. Indeed, overheads and operational cost so saved would be nothing, but an amount undeservedly earned by the school without offering such facilities to the students during the relevant period. Being fee, the principle of quid pro quo must come into play. However, no accurate (factual) empirical data has been furnished by either side about the extent to which such saving has been or could have been made or benefit derived by the school Management. Without insisting for mathematical exactitude approach, we would assume that the school Management(s) must have saved around 15 per cent of the annual school fees fixed by the school/adjudicated by the Statutory Regulatory Authorities for the relevant period. 116. At this stage, we must advert to the stand taken by the learned counsel for the appellants that the appellants would be content with the interim order passed by this Court on 08.02.2021, being confirmed as a final order. This suggestion is indeed attractive, but that arrangement does not provision for the amounts saved by the school Management towards unspent overheads/expenses in respect of facilities not utilised or could not be offered by the school Management to the students due to lockdown situation. As aforesaid, we would assume that at least 15 per cent of the annual school fees would be towards overheads/expenses saved by the school Management. Arguendo, this assumption is on the higher side than the actual savings by the school Management of private unaided schools, yet we are inclined to fix that percentage because the educational institutions are engaged in doing charitable activity of imparting and spreading education and not make money. That they must willingly and proactively do. Hence, collection of commensurate amount (15 per cent of the annual school fees for academic year 2020­2021), would be a case of profiteering and commercialisation by the school 117. Ordinarily, we would have thought it appropriate to relegate the parties before the Regulatory Authority to refix the school fees for the academic year 2020­21 after taking into account all aspects of the matter including the advantage gained by the school Management due to unspent overheads/expenses in respect of facilities not availed by the students. However, that course can be obviated by the arrangement that we propose to direct in terms of this judgment. To avoid multiplicity of proceedings (as school fee structure is linked to school — school wise) including uncertainty of legal processes by over 36,000 schools in determination of annual fee structure for the academic year 2020­21, as a one­time measure to do complete justice between the parties, we propose to issue (i) The appellants (school Management of the concerned private unaided school) shall collect annual school fees from their students as fixed under the Act of 2016 for the academic year 2019­20, but by providing deduction of 15 per cent on that amount in lieu of unutilised facilities by the students during the relevant period of academic year 2020­21. (ii) The amount so payable by the concerned students be paid in six equal monthly instalments before 05.08.2021 as noted in our order dated (iii) Regardless of the above, it will be open to the appellants (concerned schools) to give further concession to their students or to evolve a different pattern for giving concession over and above those noted in clauses (i) and (ii) above. (iv) The school Management shall not debar any student from attending either online classes or physical classes on account of non­payment of fees, arrears/outstanding fees including the installments, referred to above, and shall not withhold the results of the examinations of any student on that account. (v) If any individual request is made by the parent/ward finding it difficult to remit annual fees for the academic year 2020­21 in the above terms, the school Management to consider such representation on case­to­case basis sympathetically. (vi) The above arrangement will not affect collection of fees for the academic year 2021­22, as is payable by the students of the concerned school as and when it becomes due and payable. (vii) The school Management shall not withhold the name of any student/candidate for the ensuing Board examinations for Classes X and XII on the ground of non­payment of fee/arrears for the academic year 2020­21, if any, on obtaining undertaking of the concerned parents/students. 118. We are conscious of the fact that we are issuing general uniform direction of deduction of 15 per cent of the annual school fees in lieu of unutilised facilities/activities and not on the basis of actual data school­wise. As aforesaid, we have chosen to do so with a view to obviate avoidable litigation and to give finality to the issue of determination and collection of school fees for the academic year 2020­21, as a one­time measure which is the subject matter of these appeals. We have consciously limited the quantum of deduction from annual school fees to 15 per cent although the school Management had mentioned about its willingness to provide 25 per cent scholarship to deserving students, as we have compelled the school Management to collect annual school fees for the academic year 2020­21 as was fixed for the academic year 2019­20 on which some of the school Management(s) could have legitimately asked for increase of at least 10 per cent in terms of Section 6(5) of the Act of 2016. 119. As we are disposing of the appeals in terms of this judgment, the contempt petition(s) filed before the High Court on the basis of impugned judgment also need to be disposed of. Accordingly, we deem it appropriate to dispose of all the contempt petition(s) initiated in reference to the impugned judgment, as the same is being overturned by this decision. 120. While parting, we must note that the respondent­State of Rajasthan has moved a formal application for recall/modification of direction given in clause (g) of the order of this Court dated 08.02.2021 — to ensure payment of outstanding dues towards unit cost payable to respective unaided schools within specified time. It is urged that due to complexity of facts, it was not possible to complete the process of computation before 31.03.2021. In the first place, there is no question of recall or modification of that direction. We were conscious of the fact that that is not the subject matter of the appeals before this Court. Nevertheless, such direction was issued taking into account totality of the situation and to give relief to the private unaided schools by directing the State of Rajasthan to discharge its statutory obligation within specified time, of paying the outstanding dues of the concerned private unaided schools towards unit cost. Accordingly, we reiterate that direction but give further time to the State Government to complete the process of calculation and disbursal of the outstanding amount payable towards unit cost to the concerned unaided schools in the State of Rajasthan before the end of July 2021. The outstanding dues to be paid in terms of this direction would be obviously in respect of academic year upto 2020­21. 121. We must also note that we have not dilated on each of the reported decisions relied upon by the parties, as it is not necessary to do so for the view taken by us. For, there is nothing inconsistent in those decisions. (a) we dispose of the first set of appeals challenging the validity of the Act of 2016 and the Rules framed thereunder with observations and the conclusion recorded in paragraph 52 above by reading down Sections 4, 7 and 10 of the Act and direct that henceforth the same be applied in conformity with the law declared in this judgment. (b) The second set of appeals, however, are allowed in the above terms including mentioned in paragraph 117. The impugned judgment and order of the High Court dated 18.12.2020 is quashed and set aside. Instead, the intra­court appeals preferred by the appellants questioning the decision of the learned Single Judge and the writ petitions filed before the High Court to assail the impugned order dated 28.10.2020, shall stand disposed of in terms of this judgment. (c) The contempt petition(s) pending before the High Court in connection with the subject matter of these appeals also stand disposed of. No order as to costs. Pending applications, if any, also stand disposed of.
The Supreme Court decided that if schools ask for money for things students didn't use during the lockdown, like certain facilities or activities, it's like "making too much money" and "treating education like a business." The Supreme Court understood that since classes were online last school year, schools saved money on things like running costs and other expenses. The Court figured schools saved at least 15% this way. Because of these savings, schools must reduce their yearly fees by that much. The Court stated schools "should willingly and actively" lower fees. The Court based its decision on past rulings, like those in cases such as TMA Pai and PA Inamdar. These past cases said that schools' fees should match the services they provide. Schools should not "make too much money" or "treat education like a business." The Court said private schools can set their own fees, but only if they don't "profiteer" or "commercialize." The government can make rules to stop schools from doing this. The Court stated that collecting more money than allowed would be considered "profiteering" and "commercialization." Justices AM Khanwilkar and Dinesh Maheshwari were the judges who made this important decision in a case called Indian School, Jodhpur vs. State of Rajasthan. They were looking at many challenges to an order from the Rajasthan government. This order had allowed CBSE schools in the state to collect only 70% of the yearly fees, and state board schools to collect only 60%. The Supreme Court partly agreed with the schools' request. It said schools could collect their yearly tuition fees, but only after lowering them by 15% to account for the money saved on running costs and other expenses. The Court also allowed parents to pay the fees in six monthly payments. The relevant observations made in the judgment(paragraphs 116 and 117) are : The Court said that schools legally cannot charge money for activities and facilities that students didn't use or get because of things outside their control. Asking for fees, even for the costs of running such activities, would be pure "profiteering" or "treating education like a business." It's well-known, and the Court recognized, that schools were closed for a long time during the 2020-21 school year because of the lockdown. This means school managements must have saved money on running costs and regular expenses for things like fuel, electricity, maintenance, water, and school supplies. The Court added that the money schools saved on running costs and expenses was money they didn't earn fairly. This is because they didn't provide those services to students during that time. For fees, the idea of "something for something" (quid pro quo) must apply. However, neither side gave exact information about how much schools saved or could have saved. Without needing a perfectly precise number, the Court estimated that schools must have saved about 15% of the yearly fees, which are either set by the school or by official regulators for that time. The Court said it would assume that at least 15% of the yearly school fees covered running costs and expenses that schools saved. Even if this amount is more than what private schools actually saved, the Court still set this percentage. This is because schools are meant to be charity organizations that provide education, not businesses that make money. Schools should do this willingly. So, collecting this extra 15% of the yearly fees for the 2020-2021 school year would be seen as "profiteering" and "treating education like a business" by the school management. Schools must be responsive to the hardships faced by students and parents The Court further observed : School managements, who are supposed to be doing charity work by providing education, should understand the difficult situation. They should take steps to lessen the problems faced by students and their parents. It is up to the school management to change the fee payment schedule so that no student is left out or prevented from continuing their education. This helps make the idea of "live and let live" a reality. While the Court let schools charge 85% of the yearly fees, it also ordered that no student should be stopped from attending online or in-person classes for not paying fees. This includes any unpaid past fees or installments. Schools also cannot hold back a student's exam results because of unpaid fees. If a parent or guardian asks for help because they find it hard to pay the yearly fees for the 2020-21 school year, the school management must consider each request kindly. School managements cannot keep any student's name from being sent for the upcoming Class 10 and 12 Board exams because of unpaid fees from the 2020-21 school year. This is true if the parents or students give a promise to pay later.
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Nobody has appeared for respondent Nos. 1 and 2 despite repeated service of Leave granted. Having heard learned counsel for the petitioners and learned counsel for the State, and having perused the material placed on record, we are clearly of the view that the impugned order dated 19.12.2018 as passed by the High Court, transferring the proceedings in Sessions Trial No. 715 of 2017 from the Court of Additional Sessions Judge First, Aligarh to the corresponding Court at Mathura, cannot be approved. It appears that the learned Single Judge of the High Court felt dissatisfied with the conduct of the staff of the Subordinate Court in not taking on record the order passed by the High Court and for that matter, made elaborate comments in the order impugned on the conduct of the Trial Judge and then, proceeded to order transfer of the trial. With respect, we are unable to endorse the approach in the order impugned. It is noticed that transfer was sought by the accused persons, inter alia, with the grievances that the discharge application moved by some of the accused persons was not being decided and they were asked to appear before the Court at Aligarh on every date. The High Court had earlier ordered for disposal of the discharge application but the same remained pending. However, the proceedings in the High Court swelled to the extent of the Court asking the Trial Judge to appear in-person, who was required to appear and submit In the totality of circumstances of the case, we do not wish to make any comments on the nature of proceedings this matter has undergone but, we are clearly of the view that because of any fault or shortcoming on the part of the staff of the Subordinate Court and for that matter, any delay in compliance by the Court were hardly the reasons for the High Court to immediately adopt the course of transferring the matter and that too, to a different station. While examining this matter on 23.01.2019 at the initial stage, this Court had stayed the operation of the impugned order dated 19.12.2018. We are informed that while the operation of the said order has remained stayed but the trial has not proceeded Without any further elaboration, suffice it to observe that we find no reason to allow the impugned order dated 19.12.2018 to operate or to order transfer of the proceedings on the grounds as suggested before the High Court. Thus, it appears just and proper that the impugned order be set aside. Accordingly, the impugned order dated 19.12.2018 in T.A. No. 492 of 2018 is set aside while leaving all other aspects of the matter open for consideration of the Trial Court in accordance with law. The appeal stands allowed accordingly. All pending applications stand disposed of.
The Supreme Court said that mistakes made by the staff of a lower court, or any delays by that court, are not by themselves good enough reasons to move a case to a different court. In this specific case, the Allahabad High Court moved a criminal case from a court in Aligarh to a similar court in Mathura. The High Court did this because it was unhappy with how the lower court's staff acted, as they failed to officially record an order that the High Court had made. Also, some people accused in the case had asked for it to be moved. They claimed that their request to be released from the charges was not being decided, and they had to keep showing up in court in Aligarh every time. The High Court even made the judge in charge of the trial come to court and apologize in person. When the Supreme Court reviewed the High Court's order, two judges, Justices Dinesh Maheshwari and Aniruddha Bose, stated: "Looking at everything that happened in this case, we don't want to comment on the way the case was handled before. However, we strongly believe that mistakes by the lower court's staff, or any delays by the court, were clearly not enough reasons for the High Court to immediately decide to move the case, especially to a different city." Because of this, the Supreme Court canceled the High Court's order and sent the case back to be handled by the court in Aligarh. Case details Nazma Naz vs Rukhsana Bano | (SC) 532 | CrA 820 OF 2022 | 17 May 2022 Coram : Justices Dinesh Maheshwari and Aniruddha Bose Headnotes Code of Criminal Procedure, 1973; Section 407 - The Supreme Court found that mistakes or problems from the lower court staff, or any delays by that court, were not strong enough reasons for the High Court to quickly decide to move the case.
Nobody has appeared for respondent Nos. 1 and 2 despite repeated service of Leave granted. Having heard learned counsel for the petitioners and learned counsel for the State, and having perused the material placed on record, we are clearly of the view that the impugned order dated 19.12.2018 as passed by the High Court, transferring the proceedings in Sessions Trial No. 715 of 2017 from the Court of Additional Sessions Judge First, Aligarh to the corresponding Court at Mathura, cannot be approved. It appears that the learned Single Judge of the High Court felt dissatisfied with the conduct of the staff of the Subordinate Court in not taking on record the order passed by the High Court and for that matter, made elaborate comments in the order impugned on the conduct of the Trial Judge and then, proceeded to order transfer of the trial. With respect, we are unable to endorse the approach in the order impugned. It is noticed that transfer was sought by the accused persons, inter alia, with the grievances that the discharge application moved by some of the accused persons was not being decided and they were asked to appear before the Court at Aligarh on every date. The High Court had earlier ordered for disposal of the discharge application but the same remained pending. However, the proceedings in the High Court swelled to the extent of the Court asking the Trial Judge to appear in-person, who was required to appear and submit In the totality of circumstances of the case, we do not wish to make any comments on the nature of proceedings this matter has undergone but, we are clearly of the view that because of any fault or shortcoming on the part of the staff of the Subordinate Court and for that matter, any delay in compliance by the Court were hardly the reasons for the High Court to immediately adopt the course of transferring the matter and that too, to a different station. While examining this matter on 23.01.2019 at the initial stage, this Court had stayed the operation of the impugned order dated 19.12.2018. We are informed that while the operation of the said order has remained stayed but the trial has not proceeded Without any further elaboration, suffice it to observe that we find no reason to allow the impugned order dated 19.12.2018 to operate or to order transfer of the proceedings on the grounds as suggested before the High Court. Thus, it appears just and proper that the impugned order be set aside. Accordingly, the impugned order dated 19.12.2018 in T.A. No. 492 of 2018 is set aside while leaving all other aspects of the matter open for consideration of the Trial Court in accordance with law. The appeal stands allowed accordingly. All pending applications stand disposed of.
The Supreme Court said that mistakes made by the staff of a lower court, or any delays by that court, are not by themselves good enough reasons to move a case to a different court. In this specific case, the Allahabad High Court moved a criminal case from a court in Aligarh to a similar court in Mathura. The High Court did this because it was unhappy with how the lower court's staff acted, as they failed to officially record an order that the High Court had made. Also, some people accused in the case had asked for it to be moved. They claimed that their request to be released from the charges was not being decided, and they had to keep showing up in court in Aligarh every time. The High Court even made the judge in charge of the trial come to court and apologize in person. When the Supreme Court reviewed the High Court's order, two judges, Justices Dinesh Maheshwari and Aniruddha Bose, stated: "Looking at everything that happened in this case, we don't want to comment on the way the case was handled before. However, we strongly believe that mistakes by the lower court's staff, or any delays by the court, were clearly not enough reasons for the High Court to immediately decide to move the case, especially to a different city." Because of this, the Supreme Court canceled the High Court's order and sent the case back to be handled by the court in Aligarh. Case details Nazma Naz vs Rukhsana Bano | (SC) 532 | CrA 820 OF 2022 | 17 May 2022 Coram : Justices Dinesh Maheshwari and Aniruddha Bose Headnotes Code of Criminal Procedure, 1973; Section 407 - The Supreme Court found that mistakes or problems from the lower court staff, or any delays by that court, were not strong enough reasons for the High Court to quickly decide to move the case.
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In re : UTP Dipak Joshi @ Jaisi @ Jaishi, S/o Champakha Jaisi, lodged in Dum Dum Central Mr. V. Tripathy …for the High Court Admn. Mr. Nazir Ahamed …for the SLSA. Mr. Subhrojyoti Ghosh …for the Relative of Mr. Hirak Sinha for the Consulate General of Nepal. Mr. Debasish Ghosh …for the State. The learned 1st Additional District & Sessions Judge, Darjeeling where Sessions Case No.31 of 1981 is pending, will trace out the records and send it to this Court through a special messenger within a period of two days without fail. List this matter for further consideration on 18.3.2021 at the top. Registrar General is directed to communicate this order forthwith telephonically and by email or other mode to the Court below. 1. This matter relates to an Under Trial Prisoner who, going by the report of the West Bengal State Legal Services Authority; for short, “SLSA” and the Directorate of Correctional Services; for short, “DCS”, is in the Dum Dum Central Correctional Home for nearly 41 years by now. 2. The Department of Psychology, University Colleges of Science, Technology and Agriculture, Calcutta University through Dr. Manisha Dasgupta, Associate Professor and Dr. Somdeb Mitra, assessed the said under trial prisoner; for short, “UTP”, namely, Dipak Joshi @ Jaisi @ Jaishi and has stated that his IQ level indicates that his current mental age in terms of intellectual functioning is around 9 years and 9 months. That is the report given by that University Department on 11.01.2021 upon the presentation of Dipak Joshi @ Jaisi @ Jaishi before them with the intervention of SLSA. 3. From the material papers, we find that the UTP is to stand trial for an offence punishable under Section 302 of IPC. 4. Following the efforts taken by the SLSA and the Officers under its command and through different other supporting Institutions, the Consulate General of Nepal has placed on record, the fact that the whereabouts of the near relatives of the UTP have been traced out and his mother is 90 years of age. It is also submitted on behalf of the Consulate General of Nepal in India at Kolkata that the Consulate is requested to do the needful to support the affairs of the UTP. 5. An affidavit has been placed on record by Prakash Chandra Sharma Timsina. He states that he is the elder son of the UTP’s uncle. UTP and Prakash Chandra Sharma Timsina are stated to be the grandchildren of late Premlal Timsina. Therefore, Prakash Chandra Sharma Timsina is a near relative of the UTP. 6. On the basis of the materials on record, we see that after the assessment of the UTP’s mental status, sometime in January, 1982, when he was found to be not mentally fit to stand trial, there is no contrary report at any point of time even as of now before the Court of Session where the case is pending for trial. 7. In the aforesaid view of the matter, we do not see that any useful purpose will subserve the ends of justice by continuing to detain UTP Dipak Joshi @ Jaisi @ Jaishi in the Correctional Home. We are, therefore, of the view that in exercise of authority under Section 482 of Cr.P.C. and Articles 226 and 227 of the Constitution of India; and, also applying the substance of the directions given by the Hon’ble Supreme Court of India in News Item “38 years in jail without trial” published in Hindustan Times, In Re Vs. Union of India, reported in (2007) 15 SCC 18, the UTP Dipak Joshi @ Jaisi @ Jaishi, S/o Champakha Jaisi could be entrusted to the custody of his near relative, Prakash Chandra Sharma Timsina who has filed an affidavit and application seeking release of UTP Dipak Joshi @ Jaisi @ Jaishi, S/o Champakha Jaisi. This course will also be in consonance with the power of the Court to grant bail pending trial. 8. For the aforesaid reasons, it is ordered that the UTP namely Dipak Joshi @ Jaisi @ Jaishi, S/o Champakha Jaisi, now housed in Dum Dum Correctional Home in connection with Sessions Case No.31 of 1981 in the First Additional District & Sessions Judges, Darjeeling is released from the Correctional Home and entrusted to the custody of Prakash Chandra Sharma Timsina. It is impossible and impermissible to direct the UTP to execute any bond in view of the deficit in his mental capacity. Ends of justice will be satisfied if his release is supported by a simple bond executed by the aforementioned, Prakash Chandra Sharma Timsina in favour of the Registrar General of this Court undertaking to produce the UTP as and when directed by this Court. That bond should be attested by Mr. Satish Thapa, Office Secretary of Consulate General of Nepal in India at Kolkata. Upon such bond being executed to the satisfaction of the Registrar General at the earliest, preferably today or tomorrow, the Dum Dum Central Correction Home shall release the said person into the custody of Prakash Chandra Sharma Timsina who will execute requisite receipt to the Dum Dum Central Correctional Home upon taking charge of the said UTP. Prakash Chandra Sharma Timsina will thereupon keep the Consulate General of Nepal in India at Kolkata updated once in six months, until otherwise ordered, with requisite inputs as may be required at that end regarding the affairs of UTP. Upon his release, we direct that all Statutory Authorities will ensure and do the needful to facilitate the transit of UTP Dipak Joshi @ Jaisi @ Jaishi to Nepal under the aegis of the Consulate General of Nepal in India at
The Calcutta High Court, a high-level court in India, ordered on Wednesday, March 17th, that a Nepali man be set free. He had been arrested about 41 years ago and held in custody ever since. The two judges, Chief Justice Thottathil B. Radhakrishnan and Justice Aniruddha Roy, made this decision. They noted that the man’s current mental ability, or how he thinks, is like that of a child aged about 9 years and 9 months. The judges were looking at the case of Dipak Joshi. He was arrested on May 12, 1980, and had already spent over 40 years locked up. Nepali Man In Jail For 40 Years: Calcutta High Court To See If His Case Should Be Ended By The Court Itself The Court looked at all the evidence and official papers. They noticed that after doctors checked his mental health in January 1982 and found him too unwell to face a trial, no other report ever said anything different. This was true even up to the present day, in the lower court where his case was still waiting to be heard. So, using its power from certain laws (Section 482 of the criminal procedure code and Articles 226 and 227 of the Indian Constitution), the Court ordered him to be set free. The judges explained: "Looking at the situation, we don't believe it helps justice in any useful way to keep Dipak Joshi, who is an under-trial prisoner, locked up in the jail." The Court ordered that the man, who was staying in Dum Dum Jail because of a case from 1981 in Darjeeling, be released from jail. He was then placed into the care of Prakash Chandra Sharma Timsina. The Court added: "It's not possible or allowed to ask the under-trial prisoner to sign any promise to appear in court because of his mental health issues. Justice will be served if his release is backed by a simple promise, signed by Prakash Chandra Sharma Timsina, agreeing to bring the prisoner to court whenever this Court asks." Finally, the Court told all government agencies to help Dipak Joshi travel to Nepal after he is freed. This travel would happen with the support of the Consulate General of Nepal in India, located in Kolkata. The name of the case is: The Court acting on its own: Regarding the under-trial prisoner Dipak Joshi, held at Dum Dum Central Jail [W.P.A. (P) 27 of 2021].
In re : UTP Dipak Joshi @ Jaisi @ Jaishi, S/o Champakha Jaisi, lodged in Dum Dum Central Mr. V. Tripathy …for the High Court Admn. Mr. Nazir Ahamed …for the SLSA. Mr. Subhrojyoti Ghosh …for the Relative of Mr. Hirak Sinha for the Consulate General of Nepal. Mr. Debasish Ghosh …for the State. The learned 1st Additional District & Sessions Judge, Darjeeling where Sessions Case No.31 of 1981 is pending, will trace out the records and send it to this Court through a special messenger within a period of two days without fail. List this matter for further consideration on 18.3.2021 at the top. Registrar General is directed to communicate this order forthwith telephonically and by email or other mode to the Court below. 1. This matter relates to an Under Trial Prisoner who, going by the report of the West Bengal State Legal Services Authority; for short, “SLSA” and the Directorate of Correctional Services; for short, “DCS”, is in the Dum Dum Central Correctional Home for nearly 41 years by now. 2. The Department of Psychology, University Colleges of Science, Technology and Agriculture, Calcutta University through Dr. Manisha Dasgupta, Associate Professor and Dr. Somdeb Mitra, assessed the said under trial prisoner; for short, “UTP”, namely, Dipak Joshi @ Jaisi @ Jaishi and has stated that his IQ level indicates that his current mental age in terms of intellectual functioning is around 9 years and 9 months. That is the report given by that University Department on 11.01.2021 upon the presentation of Dipak Joshi @ Jaisi @ Jaishi before them with the intervention of SLSA. 3. From the material papers, we find that the UTP is to stand trial for an offence punishable under Section 302 of IPC. 4. Following the efforts taken by the SLSA and the Officers under its command and through different other supporting Institutions, the Consulate General of Nepal has placed on record, the fact that the whereabouts of the near relatives of the UTP have been traced out and his mother is 90 years of age. It is also submitted on behalf of the Consulate General of Nepal in India at Kolkata that the Consulate is requested to do the needful to support the affairs of the UTP. 5. An affidavit has been placed on record by Prakash Chandra Sharma Timsina. He states that he is the elder son of the UTP’s uncle. UTP and Prakash Chandra Sharma Timsina are stated to be the grandchildren of late Premlal Timsina. Therefore, Prakash Chandra Sharma Timsina is a near relative of the UTP. 6. On the basis of the materials on record, we see that after the assessment of the UTP’s mental status, sometime in January, 1982, when he was found to be not mentally fit to stand trial, there is no contrary report at any point of time even as of now before the Court of Session where the case is pending for trial. 7. In the aforesaid view of the matter, we do not see that any useful purpose will subserve the ends of justice by continuing to detain UTP Dipak Joshi @ Jaisi @ Jaishi in the Correctional Home. We are, therefore, of the view that in exercise of authority under Section 482 of Cr.P.C. and Articles 226 and 227 of the Constitution of India; and, also applying the substance of the directions given by the Hon’ble Supreme Court of India in News Item “38 years in jail without trial” published in Hindustan Times, In Re Vs. Union of India, reported in (2007) 15 SCC 18, the UTP Dipak Joshi @ Jaisi @ Jaishi, S/o Champakha Jaisi could be entrusted to the custody of his near relative, Prakash Chandra Sharma Timsina who has filed an affidavit and application seeking release of UTP Dipak Joshi @ Jaisi @ Jaishi, S/o Champakha Jaisi. This course will also be in consonance with the power of the Court to grant bail pending trial. 8. For the aforesaid reasons, it is ordered that the UTP namely Dipak Joshi @ Jaisi @ Jaishi, S/o Champakha Jaisi, now housed in Dum Dum Correctional Home in connection with Sessions Case No.31 of 1981 in the First Additional District & Sessions Judges, Darjeeling is released from the Correctional Home and entrusted to the custody of Prakash Chandra Sharma Timsina. It is impossible and impermissible to direct the UTP to execute any bond in view of the deficit in his mental capacity. Ends of justice will be satisfied if his release is supported by a simple bond executed by the aforementioned, Prakash Chandra Sharma Timsina in favour of the Registrar General of this Court undertaking to produce the UTP as and when directed by this Court. That bond should be attested by Mr. Satish Thapa, Office Secretary of Consulate General of Nepal in India at Kolkata. Upon such bond being executed to the satisfaction of the Registrar General at the earliest, preferably today or tomorrow, the Dum Dum Central Correction Home shall release the said person into the custody of Prakash Chandra Sharma Timsina who will execute requisite receipt to the Dum Dum Central Correctional Home upon taking charge of the said UTP. Prakash Chandra Sharma Timsina will thereupon keep the Consulate General of Nepal in India at Kolkata updated once in six months, until otherwise ordered, with requisite inputs as may be required at that end regarding the affairs of UTP. Upon his release, we direct that all Statutory Authorities will ensure and do the needful to facilitate the transit of UTP Dipak Joshi @ Jaisi @ Jaishi to Nepal under the aegis of the Consulate General of Nepal in India at
The Calcutta High Court, a high-level court in India, ordered on Wednesday, March 17th, that a Nepali man be set free. He had been arrested about 41 years ago and held in custody ever since. The two judges, Chief Justice Thottathil B. Radhakrishnan and Justice Aniruddha Roy, made this decision. They noted that the man’s current mental ability, or how he thinks, is like that of a child aged about 9 years and 9 months. The judges were looking at the case of Dipak Joshi. He was arrested on May 12, 1980, and had already spent over 40 years locked up. Nepali Man In Jail For 40 Years: Calcutta High Court To See If His Case Should Be Ended By The Court Itself The Court looked at all the evidence and official papers. They noticed that after doctors checked his mental health in January 1982 and found him too unwell to face a trial, no other report ever said anything different. This was true even up to the present day, in the lower court where his case was still waiting to be heard. So, using its power from certain laws (Section 482 of the criminal procedure code and Articles 226 and 227 of the Indian Constitution), the Court ordered him to be set free. The judges explained: "Looking at the situation, we don't believe it helps justice in any useful way to keep Dipak Joshi, who is an under-trial prisoner, locked up in the jail." The Court ordered that the man, who was staying in Dum Dum Jail because of a case from 1981 in Darjeeling, be released from jail. He was then placed into the care of Prakash Chandra Sharma Timsina. The Court added: "It's not possible or allowed to ask the under-trial prisoner to sign any promise to appear in court because of his mental health issues. Justice will be served if his release is backed by a simple promise, signed by Prakash Chandra Sharma Timsina, agreeing to bring the prisoner to court whenever this Court asks." Finally, the Court told all government agencies to help Dipak Joshi travel to Nepal after he is freed. This travel would happen with the support of the Consulate General of Nepal in India, located in Kolkata. The name of the case is: The Court acting on its own: Regarding the under-trial prisoner Dipak Joshi, held at Dum Dum Central Jail [W.P.A. (P) 27 of 2021].
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1. Petitioner, through the medium of instant writ petition, seeks quashment of the Order No.538-B of 2009 dated 28.07.2009 (for short ‘impugned order’) issued by the Secretary J&K State Board of School Education Srinagar (respondent No.2 herein), whereby the petitioner was debarred from any further promotion for a period of two years with effect from the date he becomes eligible for the next promotion. 2. Briefly stated facts of the case are that the petitioner, who was working as Senior Assistant in the J&K State Board of School Education, had been served the show cause notice dated 24.04.2009 for accepting the examination application form of an ineligible candidate for secondary school examination Session-2008 Bi-annual. The said notice was replied by the petitioner, wherein it was admitted that he had accepted the admission form without assessing the previous attempts made by the said candidate. However, respondents, after examining the reply to the show cause notice, found the same not satisfactory and passed the impugned order, whereby the petitioner was awarded the punishment debarring him from further promotion for a period of two years, compelling the petitioner to file the instant petition. 3. It would be worth to mention here that earlier this Court, vide order dated 26.08.2009, dismissed the said petition. An appeal bearing LPA No.188/2009 came to be filed against the said order of dismissal dated 26.08.2009. The Division Bench after hearing the said LPA, set aside the order dated 26.08.2009 passed by the Single Bench, vide its order dated 16.04.2013, remanding back the matter to the Writ Court with the request to decide the writ petition after hearing both the parties. Accordingly, the Writ Court heard the matter afresh and admitted the Writ Petition to hearing. 4. Thereafter, in terms of the order dated 24.06.2020, the Writ Court while observing that the matter falls within the definition of ‘service matters’ as contained in Section 3(q) of the Administrative Tribunals Act, 1985 which had become applicable to the Union Territories of Jammu and Kashmir and Ladakh after coming into force of the Jammu and Kashmir Re-Organization Act, 2019 with effect from 31.10.2019, and Section 29 of the said Act provides for transfer of the pending cases of such nature to the Central Administrative Tribunal, transferred the matter to the Central Administrative Tribunal Jammu Bench. However, the learned Tribunal sent back the matter with an observation that the Tribunal has no jurisdiction over the Jammu and Kashmir Board of School 5. Respondents have filed their counter affidavit, wherein it is stated that the petitioner, while posted at Branch Office Kulgam in the year 2008 allowed one Mohammad Yaseen Magray to fill the admission/examination form of SSE (10th Class) Session-2008 Bi- Annual at late stage and entertained it notwithstanding the fact that the said candidate had already passed the SSE in the year 2003 under Roll No.610509. The form of the said candidate was accepted by the petitioner without checking the previous record. Respondents constituted a Fact Finding Committee to probe and fix the responsibility of the erring officer/official. The Committee held the said candidate guilty of unfair means and also held the petitioner responsible for the said irregularity. Respondents further stated that the Committee, so constituted, had considered the matter and decided to take a lenient view and only withheld the promotion of the petitioner for two years. It is further stated that the petitioner was given an opportunity of being heard during the course of probe, also was served the show cause notice, to which he had replied and the same was considered by the respondents but was found not convincing. Respondents in their counter affidavit had stated that none of the rights of the petitioner have been violated. The punishment imposed on the petitioner was only for dereliction of his official duty. 6. Heard learned counsel for the parties, perused and considered. 7. Learned counsel for the petitioner, while arguing the matter submits that holding departmental proceeding and recording finding of guilt against any delinquent and imposing punishment is a quasi-judicial function and not administrative function. The authorities have to strictly adhere to the statutory rules while imposing punishment. 8. Another ground of contention raised by learned counsel for the petitioner is that when a departmental enquiry is conducted against a Government employee, it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with the closed mind. The Enquiry Officer has to be unbiased. The rules of natural justice are required to be observed to ensure that a Government employee is treated fairly in the proceedings which may culminate in imposition of punishment including dismissal/removal from service. In this regard reliance was placed on the judgment rendered in the case ‘State of UP & Ors. Vs. Saroj Kumar Sinha AIR 2010 SC 3131’. 9. The next limb of the argument of the petitioner is that the delinquent is entitled to a copy of the enquiry report for making representation against it, if he so desires, and non-furnishing of the enquiry report would amount to violation of natural justice. There is no question of furnishing copy of any report to the delinquent where the disciplinary authority is himself conducting enquiry. It is the further contention of learned counsel for the petitioner that if a departmental enquiry is initiated against Government employee but the same is not completed during the period of his service, it must be completed within six months after his retirement from service. No proceedings can be allowed to continue against the retired Government employee after six months of his retirement from service. It is being stated that the petitioner has since retired from service after attaining the age of superannuation. 10. Learned counsel further argued that a Government employee cannot be punished on the findings of a preliminary enquiry without holding a disciplinary enquiry after serving charge-sheet. 11. On perusal of the record, as has been produced, and the submissions made by learned counsel for the parties, the Enquiry Committee, which conducted the enquiry, held the petitioner responsible for omission and commission of act, accordingly recommended to withhold the promotion of the petitioner for a period of two years from the date he becomes eligible for next promotion. It appears that no subsequent enquiry was held in the matter; ultimately the impugned order was passed against him. The enquiry which was held in the matter was an preliminary enquiry which is always done in the cases of such incidents to find out who was responsible for the same. 12. The findings reached by the enquiry committee, as a result of the preliminary enquiry, cannot be said to be findings made against the petitioner in a departmental enquiry initiated against him for alleged negligence of duty or violation of the statutory rules. The authorities concerned took the view that the departmental enquiry into the incident was enough but that clearly is not right. At the departmental enquiry nobody is accused of negligence or dereliction of duty. It is a kind of investigation made by the department under statutory rules. Therefore, the petitioner is justified in challenging the validity of the impugned order on the ground that a proper enquiry has not been made and he has not been given a reasonable opportunity to meet the charge against him. 13. A Committee comprising of Joint Secretary General (KD) and Dy. Secretary Legal/Cert.(KD) delegated with the powers of Joint Secretary was constituted vide Order No. 757-B of 2008 dated 25.10.2008 to probe the case relating to submission of admission cum permission form of SSE (10th class) Bi-Annual 2008 (July) at late stage through Branch office Kulgam and his subsequent appearance in the said examination under Roll No.184538 when the said candidate is reported to have passed this examination in the year 2003 and was the student of B.A final year at that point of time. The committee was asked to submit the finding at the earliest and pinpoint the responsible officials of Branch office Kulgam for entertaining the form at late stage without any authority and without checking the previous particulars of the said form. 14. This committee vide No. F (Estt. Commtt) B/08 dated 17.03.2009 submitted its report after conducting the enquiry and had drawn conclusion that Mr. Ab.Ahad Yatoo, the then Section Officer Sub Office Kulgam had exceeded the powers beyond his jurisdiction ignoring his officer Incharge, whereas the petitioner Ab. Rehman Dar, the then Dealing Assistant, who was to ascertain the eligibility of the candidate as per his back reference which he didn’t do, and that the dealing assistant was answerable as to why he had entertained the admission/permission form without checking the entries of the form, enrolment and marks certificate because the marks sheet shows re-appear in two subjects only, whileas the candidate mentioned all the subjects in which to appear in the enrolment and admission cum permission form. The committee, after conducting preliminary enquiry, recommended that Ab. Ahad Yatoo, S.O be warned to be careful in future and to withhold the promotion of the petitioner herein for the period of two years from the date he becomes eligible for the next promotion. The committee further recommended to forward the case to the Director School Education Kashmir for further necessary administrative action against the then Principal/Incharge admissions, Govt. HSS, Devsar. 15. Based on this report, show cause notice was issued to the petitioner vide No. E(Admn-B)CU/09 dated 24.04.2009, asking him to show cause as to why the proposed punishment be not imposed upon him and was asked to tender his reply within 15 days from the receipt of the notice. The petitioner in response to this notice, tendered his explanation, stating therein that one candidate namely M.Yaseen Magray S/O Ab. Salam Magray R/O Devsar, managed to fill up his admission form and his duly attested admission cum permission form through HSS Devsar, who had complete record in its possession about the candidate like enrolment/result etc.; and that the candidate had given the affidavit about his failure and through production of failure marks card after duly marked by the then S.O Ab. Ahad Yatoo, he had entertained his admission form without assessing the attempts of the said candidate. It is the school authorities who are on the fault where previous records are easily available and the other particulars of the candidate were also known. He prayed that the decision be reviewed as there was no misconduct on his part and it may be treated as out of oversight and the proposed heavy punishment would be injustice for him. 16. On consideration of the show cause notice, respondents vide Order No. 538-B of 2009 dated 28.07.2009, finding the reply of the petitioner unsatisfactory, passed the following order:- “....that he (Mr.Ab. Rehman Dar, S.A) be debarred from any further promotion for a period of two years, with effect from the date he becomes eligible for the next promotion.” The petitioner aggrieved of this order has impugned the same in this writ petition. 17. On perusal of the record, it is crystal clear that no disciplinary committee was constituted by the respondents to conduct regular enquiry into the charges against the petitioner. The committee, so constituted, had been asked to pinpoint and probe into the irregularity committed by the officials of the Sub Office Kulgam including the petitioner, and to fix responsibility of the Principal HSS Devsar, S.O, and the petitioner herein. The committee had also recommended action to be taken against the then Principal HSS Devsar, the then S.O, who was warned to be careful in future, whereas the petitioner was recommended to be penalized by withholding his next promotion for a period of two years. Respondents acted upon the afore-stated report without conducting the disciplinary enquiry to look into the charge against the petitioner. As per the Service Law Jurisprudence, the official having committed misconduct during his service is to be charge-sheeted by framing articles of charge and to lead evidence before the enquiry officer as appointed, where the delinquent official must have a right to cross examine the witnesses and also lead evidence in his defense. 18. Here in this case it appears that the respondents have said goodbye to this established procedure and have hastily rushed to impose penalty, as was recommended by the committee, which was just holding preliminary enquiry to pinpoint and probe the role of the different officials including the petitioner herein. It was incumbent upon the respondents to appoint an enquiry officer, serve charge sheet upon the petitioner as delinquent, lead evidence in support of the charge of misconduct and allow him to bring evidence in his defense. Respondents have thus, committed grave irregularity by not conducting regular enquiry and imposing penalty of withholding next promotion of the petitioner for the period of two years from the date he becomes due for next promotion. 19. Hon’ble Supreme Court in case titled ‘Kuldeep Singh Vs. Commissioner of Police & Ors., (1999) 2 SCC 10’, had held that where reliance was placed by the enquiry officer on the previous statement of the witness without supplying a copy thererof to the delinquent and without affording an opportunity to cross-examine the witness, and that the reasonable opportunity contemplated by Article 311(2) of the Constitution by providing an opportunity of being heard in accordance with the principle of natural justice, is not the compliance thereof. To conduct departmental enquiry against a Government servant is not a casual exercise. It cannot be conducted with a closed mind. The enquiry officer has to be unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but it is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment. Holding departmental proceedings and recording finding of guilt against any delinquent and imposing punishment for the same, is quasi-judicial function and not administrative function. 20. In this case, on the basis of record produced by the respondents, it can be concluded that only preliminary enquiry had been conducted and the purpose behind holding preliminary enquiry is only to take prima facie view as to whether there can be some substance in the allegations made against an employee, which may warrant regular enquiry. The evidence recorded in the preliminary enquiry cannot be used in regular departmental enquiry, as the delinquent is not associated with it and opportunity to cross examine the persons examined in such enquiry is not given. Using of such evidence has been held by the Hon’ble Apex Court in the case Nirmala J.Jhala Vs. State of Gujarat & Anr., (AIR 2013 SC 1513), as violative of the principles of natural justice. A preliminary enquiry is only a fact finding enquiry for the satisfaction of the Authority as to whether the allegations noticed against the employee concerned deserve any merit and as to whether a departmental enquiry be initiated against the employee or not. There is no requirement under any statutory provision or otherwise which requires opportunity of participation of delinquent employee in the preliminary enquiry. 21. Hon’ble Apex Court in the case ‘Amalendu Ghosh Vs. North 1960 SC 992’, had been pleased to hold that the government servant cannot be punished on the findings of preliminary enquiry without holding a disciplinary enquiry after serving a charge sheet. 22. On a close scrutiny of the case on hand having regard to the factual as well as legal aspects of the same, this Court comes to the conclusion that the penalty of withholding promotion of the petitioner herein from the date he becomes due for next promotion, is arbitrary and is not sustainable for the reason that no departmental regular enquiry was conducted into the alleged misconduct. The petitioner is stated to have superannuated and there is no question of conducting any enquiry against him at this stage. The penalty imposed on the petitioner in absence of being held guilty in regular enquiry is the abuse of power by the respondents and this arbitrary action on the part of the respondents cannot be upheld. 23. For the foregoing reasons and the observations made hereinabove, the impugned order, having been passed in arbitrary manner without conducting disciplinary enquiry into the alleged misconduct against the petitioner, is not sustainable. 24. As a sequel to the afore-stated discussion, petition is allowed and as a result the impugned order is quashed.
The High Court of Jammu & Kashmir and Ladakh recently confirmed that when a department investigates an employee, decides if they are guilty, and gives them a punishment, this process is like a court making a decision, not just a simple management task. The court canceled a decision made by the head of the J&K School Board against an employee, a Senior Assistant. The court said that stopping the employee's promotion as a punishment was unfair and not valid because a full internal investigation into the supposed wrongdoing was never done. The court, led by Justice M.A Chowdhary, noted that punishing the employee without first proving their guilt in a proper investigation was a misuse of power by the School Board officials. This unfair action could not be supported. The court pointed out that only an initial check had been done. The purpose of this first check is just to see if there seems to be enough truth in the accusations against an employee to justify a full, formal investigation. Following rules set by the Supreme Court in an earlier case, the court stated that a government employee cannot be punished based only on the results of an initial check. A formal investigation must be held after the employee has been officially told what they are accused of. The J&K School Board, in its defense, argued that the employee, while working at a branch office, allowed a student to submit a 10th-grade exam form late for a 2008 exam. This happened even though the student had already passed the 10th grade in 2003. The Board also stated that they created a committee to investigate and find out who was responsible for the mistake. This committee found the student guilty of cheating and also held the employee responsible for this error. After reviewing the evidence, the court observed that it was very clear that the School Board had not formed a formal investigation committee to conduct a full inquiry into the accusations against the employee. The committee that was formed was only for an initial check, tasked with identifying the mistake made by the sub-office officials and deciding who was responsible. The court also noted that by acting on the initial report without conducting a formal investigation into the accusation against the employee, the School Board officials completely ignored the proper legal procedures for employees. The court repeated that the established legal rule is that an employee accused of wrongdoing must be officially charged with specific wrongdoings. They must then be allowed to present proof to an assigned investigator, have the right to question witnesses against them, and also present proof to defend themselves. The court further noted that information gathered during an initial check cannot be used in a full internal investigation. This is because the accused employee is not involved in the initial check and doesn't get a chance to question the people interviewed. The court said that using such information goes against basic fairness, a point already made by the Supreme Court in a case called Nirmala J.Jhala Vs. State of Gujarat & Anr. The court recorded that, given this situation, the School Board officials were required to assign an investigator, officially inform the employee of the charges against them, present proof to support the accusation of wrongdoing, and allow the employee to present their own proof to defend themselves. The court said, "The School Board officials therefore made a serious mistake by not conducting a full investigation and by punishing the employee by stopping his next promotion for two years from when he was supposed to get it." Agreeing with the employee's request, the court noted that the employee has since retired, so it's too late to conduct any investigation against him now. Therefore, the decision made by the Board was unfair and done without a formal investigation into the supposed wrongdoing against the employee. For these reasons, the decision cannot be upheld and is canceled.
1. Petitioner, through the medium of instant writ petition, seeks quashment of the Order No.538-B of 2009 dated 28.07.2009 (for short ‘impugned order’) issued by the Secretary J&K State Board of School Education Srinagar (respondent No.2 herein), whereby the petitioner was debarred from any further promotion for a period of two years with effect from the date he becomes eligible for the next promotion. 2. Briefly stated facts of the case are that the petitioner, who was working as Senior Assistant in the J&K State Board of School Education, had been served the show cause notice dated 24.04.2009 for accepting the examination application form of an ineligible candidate for secondary school examination Session-2008 Bi-annual. The said notice was replied by the petitioner, wherein it was admitted that he had accepted the admission form without assessing the previous attempts made by the said candidate. However, respondents, after examining the reply to the show cause notice, found the same not satisfactory and passed the impugned order, whereby the petitioner was awarded the punishment debarring him from further promotion for a period of two years, compelling the petitioner to file the instant petition. 3. It would be worth to mention here that earlier this Court, vide order dated 26.08.2009, dismissed the said petition. An appeal bearing LPA No.188/2009 came to be filed against the said order of dismissal dated 26.08.2009. The Division Bench after hearing the said LPA, set aside the order dated 26.08.2009 passed by the Single Bench, vide its order dated 16.04.2013, remanding back the matter to the Writ Court with the request to decide the writ petition after hearing both the parties. Accordingly, the Writ Court heard the matter afresh and admitted the Writ Petition to hearing. 4. Thereafter, in terms of the order dated 24.06.2020, the Writ Court while observing that the matter falls within the definition of ‘service matters’ as contained in Section 3(q) of the Administrative Tribunals Act, 1985 which had become applicable to the Union Territories of Jammu and Kashmir and Ladakh after coming into force of the Jammu and Kashmir Re-Organization Act, 2019 with effect from 31.10.2019, and Section 29 of the said Act provides for transfer of the pending cases of such nature to the Central Administrative Tribunal, transferred the matter to the Central Administrative Tribunal Jammu Bench. However, the learned Tribunal sent back the matter with an observation that the Tribunal has no jurisdiction over the Jammu and Kashmir Board of School 5. Respondents have filed their counter affidavit, wherein it is stated that the petitioner, while posted at Branch Office Kulgam in the year 2008 allowed one Mohammad Yaseen Magray to fill the admission/examination form of SSE (10th Class) Session-2008 Bi- Annual at late stage and entertained it notwithstanding the fact that the said candidate had already passed the SSE in the year 2003 under Roll No.610509. The form of the said candidate was accepted by the petitioner without checking the previous record. Respondents constituted a Fact Finding Committee to probe and fix the responsibility of the erring officer/official. The Committee held the said candidate guilty of unfair means and also held the petitioner responsible for the said irregularity. Respondents further stated that the Committee, so constituted, had considered the matter and decided to take a lenient view and only withheld the promotion of the petitioner for two years. It is further stated that the petitioner was given an opportunity of being heard during the course of probe, also was served the show cause notice, to which he had replied and the same was considered by the respondents but was found not convincing. Respondents in their counter affidavit had stated that none of the rights of the petitioner have been violated. The punishment imposed on the petitioner was only for dereliction of his official duty. 6. Heard learned counsel for the parties, perused and considered. 7. Learned counsel for the petitioner, while arguing the matter submits that holding departmental proceeding and recording finding of guilt against any delinquent and imposing punishment is a quasi-judicial function and not administrative function. The authorities have to strictly adhere to the statutory rules while imposing punishment. 8. Another ground of contention raised by learned counsel for the petitioner is that when a departmental enquiry is conducted against a Government employee, it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with the closed mind. The Enquiry Officer has to be unbiased. The rules of natural justice are required to be observed to ensure that a Government employee is treated fairly in the proceedings which may culminate in imposition of punishment including dismissal/removal from service. In this regard reliance was placed on the judgment rendered in the case ‘State of UP & Ors. Vs. Saroj Kumar Sinha AIR 2010 SC 3131’. 9. The next limb of the argument of the petitioner is that the delinquent is entitled to a copy of the enquiry report for making representation against it, if he so desires, and non-furnishing of the enquiry report would amount to violation of natural justice. There is no question of furnishing copy of any report to the delinquent where the disciplinary authority is himself conducting enquiry. It is the further contention of learned counsel for the petitioner that if a departmental enquiry is initiated against Government employee but the same is not completed during the period of his service, it must be completed within six months after his retirement from service. No proceedings can be allowed to continue against the retired Government employee after six months of his retirement from service. It is being stated that the petitioner has since retired from service after attaining the age of superannuation. 10. Learned counsel further argued that a Government employee cannot be punished on the findings of a preliminary enquiry without holding a disciplinary enquiry after serving charge-sheet. 11. On perusal of the record, as has been produced, and the submissions made by learned counsel for the parties, the Enquiry Committee, which conducted the enquiry, held the petitioner responsible for omission and commission of act, accordingly recommended to withhold the promotion of the petitioner for a period of two years from the date he becomes eligible for next promotion. It appears that no subsequent enquiry was held in the matter; ultimately the impugned order was passed against him. The enquiry which was held in the matter was an preliminary enquiry which is always done in the cases of such incidents to find out who was responsible for the same. 12. The findings reached by the enquiry committee, as a result of the preliminary enquiry, cannot be said to be findings made against the petitioner in a departmental enquiry initiated against him for alleged negligence of duty or violation of the statutory rules. The authorities concerned took the view that the departmental enquiry into the incident was enough but that clearly is not right. At the departmental enquiry nobody is accused of negligence or dereliction of duty. It is a kind of investigation made by the department under statutory rules. Therefore, the petitioner is justified in challenging the validity of the impugned order on the ground that a proper enquiry has not been made and he has not been given a reasonable opportunity to meet the charge against him. 13. A Committee comprising of Joint Secretary General (KD) and Dy. Secretary Legal/Cert.(KD) delegated with the powers of Joint Secretary was constituted vide Order No. 757-B of 2008 dated 25.10.2008 to probe the case relating to submission of admission cum permission form of SSE (10th class) Bi-Annual 2008 (July) at late stage through Branch office Kulgam and his subsequent appearance in the said examination under Roll No.184538 when the said candidate is reported to have passed this examination in the year 2003 and was the student of B.A final year at that point of time. The committee was asked to submit the finding at the earliest and pinpoint the responsible officials of Branch office Kulgam for entertaining the form at late stage without any authority and without checking the previous particulars of the said form. 14. This committee vide No. F (Estt. Commtt) B/08 dated 17.03.2009 submitted its report after conducting the enquiry and had drawn conclusion that Mr. Ab.Ahad Yatoo, the then Section Officer Sub Office Kulgam had exceeded the powers beyond his jurisdiction ignoring his officer Incharge, whereas the petitioner Ab. Rehman Dar, the then Dealing Assistant, who was to ascertain the eligibility of the candidate as per his back reference which he didn’t do, and that the dealing assistant was answerable as to why he had entertained the admission/permission form without checking the entries of the form, enrolment and marks certificate because the marks sheet shows re-appear in two subjects only, whileas the candidate mentioned all the subjects in which to appear in the enrolment and admission cum permission form. The committee, after conducting preliminary enquiry, recommended that Ab. Ahad Yatoo, S.O be warned to be careful in future and to withhold the promotion of the petitioner herein for the period of two years from the date he becomes eligible for the next promotion. The committee further recommended to forward the case to the Director School Education Kashmir for further necessary administrative action against the then Principal/Incharge admissions, Govt. HSS, Devsar. 15. Based on this report, show cause notice was issued to the petitioner vide No. E(Admn-B)CU/09 dated 24.04.2009, asking him to show cause as to why the proposed punishment be not imposed upon him and was asked to tender his reply within 15 days from the receipt of the notice. The petitioner in response to this notice, tendered his explanation, stating therein that one candidate namely M.Yaseen Magray S/O Ab. Salam Magray R/O Devsar, managed to fill up his admission form and his duly attested admission cum permission form through HSS Devsar, who had complete record in its possession about the candidate like enrolment/result etc.; and that the candidate had given the affidavit about his failure and through production of failure marks card after duly marked by the then S.O Ab. Ahad Yatoo, he had entertained his admission form without assessing the attempts of the said candidate. It is the school authorities who are on the fault where previous records are easily available and the other particulars of the candidate were also known. He prayed that the decision be reviewed as there was no misconduct on his part and it may be treated as out of oversight and the proposed heavy punishment would be injustice for him. 16. On consideration of the show cause notice, respondents vide Order No. 538-B of 2009 dated 28.07.2009, finding the reply of the petitioner unsatisfactory, passed the following order:- “....that he (Mr.Ab. Rehman Dar, S.A) be debarred from any further promotion for a period of two years, with effect from the date he becomes eligible for the next promotion.” The petitioner aggrieved of this order has impugned the same in this writ petition. 17. On perusal of the record, it is crystal clear that no disciplinary committee was constituted by the respondents to conduct regular enquiry into the charges against the petitioner. The committee, so constituted, had been asked to pinpoint and probe into the irregularity committed by the officials of the Sub Office Kulgam including the petitioner, and to fix responsibility of the Principal HSS Devsar, S.O, and the petitioner herein. The committee had also recommended action to be taken against the then Principal HSS Devsar, the then S.O, who was warned to be careful in future, whereas the petitioner was recommended to be penalized by withholding his next promotion for a period of two years. Respondents acted upon the afore-stated report without conducting the disciplinary enquiry to look into the charge against the petitioner. As per the Service Law Jurisprudence, the official having committed misconduct during his service is to be charge-sheeted by framing articles of charge and to lead evidence before the enquiry officer as appointed, where the delinquent official must have a right to cross examine the witnesses and also lead evidence in his defense. 18. Here in this case it appears that the respondents have said goodbye to this established procedure and have hastily rushed to impose penalty, as was recommended by the committee, which was just holding preliminary enquiry to pinpoint and probe the role of the different officials including the petitioner herein. It was incumbent upon the respondents to appoint an enquiry officer, serve charge sheet upon the petitioner as delinquent, lead evidence in support of the charge of misconduct and allow him to bring evidence in his defense. Respondents have thus, committed grave irregularity by not conducting regular enquiry and imposing penalty of withholding next promotion of the petitioner for the period of two years from the date he becomes due for next promotion. 19. Hon’ble Supreme Court in case titled ‘Kuldeep Singh Vs. Commissioner of Police & Ors., (1999) 2 SCC 10’, had held that where reliance was placed by the enquiry officer on the previous statement of the witness without supplying a copy thererof to the delinquent and without affording an opportunity to cross-examine the witness, and that the reasonable opportunity contemplated by Article 311(2) of the Constitution by providing an opportunity of being heard in accordance with the principle of natural justice, is not the compliance thereof. To conduct departmental enquiry against a Government servant is not a casual exercise. It cannot be conducted with a closed mind. The enquiry officer has to be unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but it is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment. Holding departmental proceedings and recording finding of guilt against any delinquent and imposing punishment for the same, is quasi-judicial function and not administrative function. 20. In this case, on the basis of record produced by the respondents, it can be concluded that only preliminary enquiry had been conducted and the purpose behind holding preliminary enquiry is only to take prima facie view as to whether there can be some substance in the allegations made against an employee, which may warrant regular enquiry. The evidence recorded in the preliminary enquiry cannot be used in regular departmental enquiry, as the delinquent is not associated with it and opportunity to cross examine the persons examined in such enquiry is not given. Using of such evidence has been held by the Hon’ble Apex Court in the case Nirmala J.Jhala Vs. State of Gujarat & Anr., (AIR 2013 SC 1513), as violative of the principles of natural justice. A preliminary enquiry is only a fact finding enquiry for the satisfaction of the Authority as to whether the allegations noticed against the employee concerned deserve any merit and as to whether a departmental enquiry be initiated against the employee or not. There is no requirement under any statutory provision or otherwise which requires opportunity of participation of delinquent employee in the preliminary enquiry. 21. Hon’ble Apex Court in the case ‘Amalendu Ghosh Vs. North 1960 SC 992’, had been pleased to hold that the government servant cannot be punished on the findings of preliminary enquiry without holding a disciplinary enquiry after serving a charge sheet. 22. On a close scrutiny of the case on hand having regard to the factual as well as legal aspects of the same, this Court comes to the conclusion that the penalty of withholding promotion of the petitioner herein from the date he becomes due for next promotion, is arbitrary and is not sustainable for the reason that no departmental regular enquiry was conducted into the alleged misconduct. The petitioner is stated to have superannuated and there is no question of conducting any enquiry against him at this stage. The penalty imposed on the petitioner in absence of being held guilty in regular enquiry is the abuse of power by the respondents and this arbitrary action on the part of the respondents cannot be upheld. 23. For the foregoing reasons and the observations made hereinabove, the impugned order, having been passed in arbitrary manner without conducting disciplinary enquiry into the alleged misconduct against the petitioner, is not sustainable. 24. As a sequel to the afore-stated discussion, petition is allowed and as a result the impugned order is quashed.
The High Court of Jammu & Kashmir and Ladakh recently confirmed that when a department investigates an employee, decides if they are guilty, and gives them a punishment, this process is like a court making a decision, not just a simple management task. The court canceled a decision made by the head of the J&K School Board against an employee, a Senior Assistant. The court said that stopping the employee's promotion as a punishment was unfair and not valid because a full internal investigation into the supposed wrongdoing was never done. The court, led by Justice M.A Chowdhary, noted that punishing the employee without first proving their guilt in a proper investigation was a misuse of power by the School Board officials. This unfair action could not be supported. The court pointed out that only an initial check had been done. The purpose of this first check is just to see if there seems to be enough truth in the accusations against an employee to justify a full, formal investigation. Following rules set by the Supreme Court in an earlier case, the court stated that a government employee cannot be punished based only on the results of an initial check. A formal investigation must be held after the employee has been officially told what they are accused of. The J&K School Board, in its defense, argued that the employee, while working at a branch office, allowed a student to submit a 10th-grade exam form late for a 2008 exam. This happened even though the student had already passed the 10th grade in 2003. The Board also stated that they created a committee to investigate and find out who was responsible for the mistake. This committee found the student guilty of cheating and also held the employee responsible for this error. After reviewing the evidence, the court observed that it was very clear that the School Board had not formed a formal investigation committee to conduct a full inquiry into the accusations against the employee. The committee that was formed was only for an initial check, tasked with identifying the mistake made by the sub-office officials and deciding who was responsible. The court also noted that by acting on the initial report without conducting a formal investigation into the accusation against the employee, the School Board officials completely ignored the proper legal procedures for employees. The court repeated that the established legal rule is that an employee accused of wrongdoing must be officially charged with specific wrongdoings. They must then be allowed to present proof to an assigned investigator, have the right to question witnesses against them, and also present proof to defend themselves. The court further noted that information gathered during an initial check cannot be used in a full internal investigation. This is because the accused employee is not involved in the initial check and doesn't get a chance to question the people interviewed. The court said that using such information goes against basic fairness, a point already made by the Supreme Court in a case called Nirmala J.Jhala Vs. State of Gujarat & Anr. The court recorded that, given this situation, the School Board officials were required to assign an investigator, officially inform the employee of the charges against them, present proof to support the accusation of wrongdoing, and allow the employee to present their own proof to defend themselves. The court said, "The School Board officials therefore made a serious mistake by not conducting a full investigation and by punishing the employee by stopping his next promotion for two years from when he was supposed to get it." Agreeing with the employee's request, the court noted that the employee has since retired, so it's too late to conduct any investigation against him now. Therefore, the decision made by the Board was unfair and done without a formal investigation into the supposed wrongdoing against the employee. For these reasons, the decision cannot be upheld and is canceled.
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Date of decision: 14th November, 2022 + CS(COMM) 364/2021 and I.A. 9865/2021 for D-43. (M:7727660808) Ms. Shweta Sahu, Advocate for D-46. 1. This hearing has been done through hybrid mode. 2. The present suit has been filed by Plaintiff No. 1- Star India Pvt. Ltd. and Plaintiff No.2- Novi Digital Entertainment Pvt. Ltd. against various rogue websites arrayed as Defendant Nos.1 to 42 in the plaint. In the suit, the Plaintiffs seek a permanent injunction restraining the said websites from retransmitting, broadcasting, streaming or in any manner communicating to the public the cinematograph film „Bhuj: The Pride of India‟. 3. The Plaintiffs are producers and owners of various television channels as also ‘Disney + Hotstar’ mobile application and OTT platform. The case of the Plaintiffs is that they are a leading production house and own exclusive copyrights in respect of a large number of cinematograph films as Digitally Signed CS(COMM) 364/2021 Page 1 of 8 also other copyrighted content. The present suit relates to a cinematograph film titled „Bhuj: The Pride of India‟ which was set for release in 2021-22. It is a film related to the Indo-Pak war of 1971 and inspired from persons involved in the said war. The rights in the said cinematograph film are exclusively owned by the Plaintiffs. 4. The Plaintiffs had apprehensions, owing to various facts pleaded in the plaint, that the Defendant rogue websites were likely to indulge in unlawful streaming of pirated copies of the said film which would have had adverse monetary impact on the Plaintiffs. Accordingly, the Plaintiffs filed the present suit seeking the following reliefs against rogue websites as also the Domain Name Registrars (hereinafter „DNRs‟) of some of the domain names, ISPs and DoT & MeitY: “i. Pass an order and decree of permanent injunction restraining the Defendants No. 1 to 42 on both 'http' and 'https' (and such other websites / entities which are discovered during the course of the proceedings to have been engaging in infringing the Plaintiffs' exclusive rights and Copyrights), their owners, partners, proprietors, officers, servants, employees, and all others in capacity of principal or agent acting for and on their behalf, or anyone claiming through, by or under it, from in any manner communicating, hosting, streaming, and/or making available for viewing and downloading, without authorization, on their websites or other platforms, through the internet in any manner whatsoever, the Film and content related thereto, so as to infringe the Plaintiffs exclusive rights and Copyrights; ii. Pass an order and decree directing the Defendant No. 46, its directors, partners, proprietors, officers, affiliates, servants, employees, and all others in capacity of principal or agent acting for and, on its Digitally Signed CS(COMM) 364/2021 Page 2 of 8 behalf, or anyone claiming through, by or under it, to suspend the domain name registration of domain names of Defendant Nos. 41 and 42 by Defendant No. 46 (GoDaddy) as already identified by the Plaintiffs in the instant suit in Memo of Parties or such other domain names that may subsequently be notified by the Plaintiff to be Rogue Websites which infringe its exclusive rights; iii. Pass an order and decree directing the Defendant Nos. 47 to 55, their directors, partners, proprietors, officers, affiliates, servants, employees, and all others in capacity of principal or agent acting for and on their behalf, or anyone claiming through, by or under it, to block access to the various websites identified by the Plaintiff in the instant suit at S. No. 1 of the Documents or such other websites that may subsequently be notified by the Plaintiff to be infringing of its exclusive rights; iv. Pass an order and decree directing the Defendant Nos. 56 and 57 to issue a notification calling upon the various internet and telecom service providers registered under it to block access to the various websites identified by the Plaintiff in the instant suit at S. No. I of the Documents or such other websites that may subsequently be notified by the Plaintiff to be infringing of its exclusive rights; v. An order for damages of Rs. 2,00,01,000/- to be paid by the Defendant Nos. 1 to 42 and such other websites / entities which are discovered during the course of the proceedings to have been engaging in infringing the Plaintiffs' exclusive rights, to the Plaintiff on account of . their illegal and infringing activities and a decree for the said amount be passed in favour of the Plaintiff (the Plaintiff reserves its right to claim additional damages and amend the pleadings accordingly once the magnitude of the Defendants' illegal / infringing activities and the revenues earned by the Defendants' Digitally Signed CS(COMM) 364/2021 Page 3 of 8 in pursuance to such illegal / infringing activities is ascertained upon discovery in the instant action); vi. An order for delivery of all the apparatus and/or material that the Defendant Nos. 1 to 42 use or may be using to infringe the Plaintiffs' exclusive rights, to the authorized representatives of the Plaintiffs for the purposes of destruction; viii. An order for rendition of accounts of profits illegally earned by the Defendant Nos. 1 to 42, (and such other websites / entities which are discovered during the course of the proceedings to have been engaging in infringing the Plaintiffs' exclusive rights), on account of their illegal hosting, streaming, publishing, exhibiting, making available and/or communicating to the public of the Plaintiffs' Channels including the internet and telecom service providers registered under it; vii. An order for costs in the present proceedings in favour of the Plaintiff; and” 5. Vide order dated 9th August, 2021, the Court had considered the matter and had issued the following directions: “5. It is the case of the plaintiffs that the said film 'Bhuj: The Pride of India' is likely to be released on 13.08.2021 and the plaintiffs apprehend that the said defendants No. 1 to 42 would violate the copyright and other rights of the plaintiffs by broadcasting or in any other manner dealing with the aforesaid film which would cause irreparable harm and damage to the plaintiffs. 6. The plaintiffs have made out a prima facie case. The defendants No. 1 to 42 and any other website identified subsequently by the plaintiffs on an affidavit to be filed in court, their owners, partners, proprietors, etc. are restrained from in any manner communicating to the public, hosting, storing, Digitally Signed CS(COMM) 364/2021 Page 4 of 8 reproducing, streaming, broadcasting, etc. the aforesaid film of the plaintiffs which would tentamount to infringement of the plaintiffs copyright and broadcast reproduction rights. A direction is passed against defendant No. 46 directing defendant No. 46 to suspend the domain registration of defendants No. 41 and 42 and any other domain names identified subsequently by the plaintiffs on an affidavit to be filed in court. An interim injunction is also passed directing defendants No. 47 to 55, their partners, owners, etc. to take steps to block access to the various domains identified by the plaintiffs at Serial No. 1 of the documents list filed by the plaintiffs who are said to be responsible for hosting, reproducing, streaming, etc. and any other domain names identified subsequently by the plaintiffs on an affidavit to be filed in court, the aforesaid film of the plaintiffs amounting to infringement of the plaintiffs' copyright. A direction is also passed to defendants No. 56 and 57 to issue a notification calling upon the various internet and telecom service providers registered under it to block access to the various domains identified by the plaintiffs in the instant suit at Serial No. 1 of the documents as noted above or any other domain names which are identified subsequently by the plaintiffs on an affidavit to be filed in court. The defendants will take immediate steps on the orders passed today by this court which will be uploaded on the website.” 6. Pursuant to the said order, further additional URLs / domain names were also found to be illegally streaming the cinematograph film. Accordingly, the Plaintiffs have brought on record the following infringing domain names/ websites by way of affidavits: Digitally Signed CS(COMM) 364/2021 Page 5 of 8 S.No. No. of Additional Websites Date of Filing 7. Parallelly, Defendant No.56 and 57, namely, DoT & MeitY are stated to have blocked all the infringing websites upon being intimated about the same by the Plaintiffs. The ISPs are also stated to have given effect to the said orders. 8. Today, ld. Counsel for the Plaintiffs submits that the cinematograph film subject of the present suit has already been released on various online platforms and OTT platforms. 9. Despite being served, none of the rogue websites have entered Digitally Signed CS(COMM) 364/2021 Page 6 of 8 appearance. On behalf of Defendant No.46- GoDaddy.com, LLC, it is submitted by Ms. Sahu, ld. Counsel that Defendant No.42- khatrimaza.casa was not under the control of GoDaddy at the time of the passing of the injunction order and the same was moved to another DNR just prior to the injunction order dated 9th August, 2021. It is further submitted by Ms. Sahu, ld. Counsel that the domain name of Defendant No.41- btcmovies.xyz was put under suspension by GoDaddy after the injunction order. However, since no locking order was passed, the said domain name has moved out of the control of GoDaddy. In respect of btcmovies.xyz, she confirms that blocking orders issued by the DoT/MeitY have been given effect to and the said domain name continues to remain suspended. Mr. Siddharth Varshney, ld.Counsel has appeared for Defendant No.43- Super Cassettes Industries 10. Heard. All the Defendant rogue websites have been served or are aware of the orders passed by this Court. However, none of the Defendant- domain names or further domain names which have been added have appeared before the Court. Vide order dated 1st September, 2022, ld. Joint Registrar has closed the right of the Defendant rogue websites to file written statement. The movie has already been released on various platforms including the OTT platforms and other online platforms. In view thereof, since the rights of the Plaintiffs are not in question, a permanent injunction is liable to be granted in terms of paragraph 66(i) of the plaint against all the rogue websites i.e., Defendant Nos. 1 to 42 and the other domain names added by subsequent affidavits totalling 689 additional websites/ domain names. 11. Insofar as the other Defendants who are Domain Name Registrars are Digitally Signed CS(COMM) 364/2021 Page 7 of 8 concerned, they shall ensure that the impugned domain names are suspended, locked and status quo is maintained in respect of the same. The same shall not be permitted to be transferred to any third party. The orders of blocking shall also stand confirmed permanently in respect of all the impugned domain names / websites. 12. In view of the above, the Plaintiffs do not press for any further reliefs of damages or rendition of accounts. 13. The suit is decreed in the above terms. Decree sheet be drawn accordingly. 14. All pending applications are disposed of. Digitally Signed CS(COMM) 364/2021 Page 8 of 8
The Delhi High Court has permanently stopped a total of 732 illegal websites from showing and streaming the movie "Bhuj: The Pride of India," which stars Ajay Devgn. Abhishek Dudhaiya directed the film, which came out on August 13 of last year. This movie is about the 1971 war between India and Pakistan. It is now available on many online streaming services and websites. Justice Pratibha M Singh made a decision in a lawsuit that Star India Private Limited and Novi Digital Entertainment Private Limited filed last year. They sued 42 illegal websites, asking the court to stop them forever from showing the movie to the public. On August 9 last year, the court had issued a temporary order against those 42 illegal websites, as listed in the original complaint. This order told them to stop showing the movie. But even with that temporary order, the court learned that more website addresses (URLs and domain names) were also illegally streaming the film. Because of this, the companies that filed the lawsuit (the plaintiffs) then submitted sworn statements, listing many other website addresses and websites. The court pointed out that the movie was already available on many platforms, like streaming services and other online sites. So, the court ordered: "Considering this, and since no one is questioning the rights of the companies who filed the lawsuit, a permanent order to stop these actions should be given. This applies to all the illegal websites, including the first 42 that were sued and the 689 additional website addresses and names added later through other sworn statements." The court also told the companies that register website names to make sure the disputed website addresses are stopped, locked, and kept in their current state. "These website addresses cannot be given to anyone else. The orders to block all the disputed website addresses and websites are also now made permanent," the court further stated.
Date of decision: 14th November, 2022 + CS(COMM) 364/2021 and I.A. 9865/2021 for D-43. (M:7727660808) Ms. Shweta Sahu, Advocate for D-46. 1. This hearing has been done through hybrid mode. 2. The present suit has been filed by Plaintiff No. 1- Star India Pvt. Ltd. and Plaintiff No.2- Novi Digital Entertainment Pvt. Ltd. against various rogue websites arrayed as Defendant Nos.1 to 42 in the plaint. In the suit, the Plaintiffs seek a permanent injunction restraining the said websites from retransmitting, broadcasting, streaming or in any manner communicating to the public the cinematograph film „Bhuj: The Pride of India‟. 3. The Plaintiffs are producers and owners of various television channels as also ‘Disney + Hotstar’ mobile application and OTT platform. The case of the Plaintiffs is that they are a leading production house and own exclusive copyrights in respect of a large number of cinematograph films as Digitally Signed CS(COMM) 364/2021 Page 1 of 8 also other copyrighted content. The present suit relates to a cinematograph film titled „Bhuj: The Pride of India‟ which was set for release in 2021-22. It is a film related to the Indo-Pak war of 1971 and inspired from persons involved in the said war. The rights in the said cinematograph film are exclusively owned by the Plaintiffs. 4. The Plaintiffs had apprehensions, owing to various facts pleaded in the plaint, that the Defendant rogue websites were likely to indulge in unlawful streaming of pirated copies of the said film which would have had adverse monetary impact on the Plaintiffs. Accordingly, the Plaintiffs filed the present suit seeking the following reliefs against rogue websites as also the Domain Name Registrars (hereinafter „DNRs‟) of some of the domain names, ISPs and DoT & MeitY: “i. Pass an order and decree of permanent injunction restraining the Defendants No. 1 to 42 on both 'http' and 'https' (and such other websites / entities which are discovered during the course of the proceedings to have been engaging in infringing the Plaintiffs' exclusive rights and Copyrights), their owners, partners, proprietors, officers, servants, employees, and all others in capacity of principal or agent acting for and on their behalf, or anyone claiming through, by or under it, from in any manner communicating, hosting, streaming, and/or making available for viewing and downloading, without authorization, on their websites or other platforms, through the internet in any manner whatsoever, the Film and content related thereto, so as to infringe the Plaintiffs exclusive rights and Copyrights; ii. Pass an order and decree directing the Defendant No. 46, its directors, partners, proprietors, officers, affiliates, servants, employees, and all others in capacity of principal or agent acting for and, on its Digitally Signed CS(COMM) 364/2021 Page 2 of 8 behalf, or anyone claiming through, by or under it, to suspend the domain name registration of domain names of Defendant Nos. 41 and 42 by Defendant No. 46 (GoDaddy) as already identified by the Plaintiffs in the instant suit in Memo of Parties or such other domain names that may subsequently be notified by the Plaintiff to be Rogue Websites which infringe its exclusive rights; iii. Pass an order and decree directing the Defendant Nos. 47 to 55, their directors, partners, proprietors, officers, affiliates, servants, employees, and all others in capacity of principal or agent acting for and on their behalf, or anyone claiming through, by or under it, to block access to the various websites identified by the Plaintiff in the instant suit at S. No. 1 of the Documents or such other websites that may subsequently be notified by the Plaintiff to be infringing of its exclusive rights; iv. Pass an order and decree directing the Defendant Nos. 56 and 57 to issue a notification calling upon the various internet and telecom service providers registered under it to block access to the various websites identified by the Plaintiff in the instant suit at S. No. I of the Documents or such other websites that may subsequently be notified by the Plaintiff to be infringing of its exclusive rights; v. An order for damages of Rs. 2,00,01,000/- to be paid by the Defendant Nos. 1 to 42 and such other websites / entities which are discovered during the course of the proceedings to have been engaging in infringing the Plaintiffs' exclusive rights, to the Plaintiff on account of . their illegal and infringing activities and a decree for the said amount be passed in favour of the Plaintiff (the Plaintiff reserves its right to claim additional damages and amend the pleadings accordingly once the magnitude of the Defendants' illegal / infringing activities and the revenues earned by the Defendants' Digitally Signed CS(COMM) 364/2021 Page 3 of 8 in pursuance to such illegal / infringing activities is ascertained upon discovery in the instant action); vi. An order for delivery of all the apparatus and/or material that the Defendant Nos. 1 to 42 use or may be using to infringe the Plaintiffs' exclusive rights, to the authorized representatives of the Plaintiffs for the purposes of destruction; viii. An order for rendition of accounts of profits illegally earned by the Defendant Nos. 1 to 42, (and such other websites / entities which are discovered during the course of the proceedings to have been engaging in infringing the Plaintiffs' exclusive rights), on account of their illegal hosting, streaming, publishing, exhibiting, making available and/or communicating to the public of the Plaintiffs' Channels including the internet and telecom service providers registered under it; vii. An order for costs in the present proceedings in favour of the Plaintiff; and” 5. Vide order dated 9th August, 2021, the Court had considered the matter and had issued the following directions: “5. It is the case of the plaintiffs that the said film 'Bhuj: The Pride of India' is likely to be released on 13.08.2021 and the plaintiffs apprehend that the said defendants No. 1 to 42 would violate the copyright and other rights of the plaintiffs by broadcasting or in any other manner dealing with the aforesaid film which would cause irreparable harm and damage to the plaintiffs. 6. The plaintiffs have made out a prima facie case. The defendants No. 1 to 42 and any other website identified subsequently by the plaintiffs on an affidavit to be filed in court, their owners, partners, proprietors, etc. are restrained from in any manner communicating to the public, hosting, storing, Digitally Signed CS(COMM) 364/2021 Page 4 of 8 reproducing, streaming, broadcasting, etc. the aforesaid film of the plaintiffs which would tentamount to infringement of the plaintiffs copyright and broadcast reproduction rights. A direction is passed against defendant No. 46 directing defendant No. 46 to suspend the domain registration of defendants No. 41 and 42 and any other domain names identified subsequently by the plaintiffs on an affidavit to be filed in court. An interim injunction is also passed directing defendants No. 47 to 55, their partners, owners, etc. to take steps to block access to the various domains identified by the plaintiffs at Serial No. 1 of the documents list filed by the plaintiffs who are said to be responsible for hosting, reproducing, streaming, etc. and any other domain names identified subsequently by the plaintiffs on an affidavit to be filed in court, the aforesaid film of the plaintiffs amounting to infringement of the plaintiffs' copyright. A direction is also passed to defendants No. 56 and 57 to issue a notification calling upon the various internet and telecom service providers registered under it to block access to the various domains identified by the plaintiffs in the instant suit at Serial No. 1 of the documents as noted above or any other domain names which are identified subsequently by the plaintiffs on an affidavit to be filed in court. The defendants will take immediate steps on the orders passed today by this court which will be uploaded on the website.” 6. Pursuant to the said order, further additional URLs / domain names were also found to be illegally streaming the cinematograph film. Accordingly, the Plaintiffs have brought on record the following infringing domain names/ websites by way of affidavits: Digitally Signed CS(COMM) 364/2021 Page 5 of 8 S.No. No. of Additional Websites Date of Filing 7. Parallelly, Defendant No.56 and 57, namely, DoT & MeitY are stated to have blocked all the infringing websites upon being intimated about the same by the Plaintiffs. The ISPs are also stated to have given effect to the said orders. 8. Today, ld. Counsel for the Plaintiffs submits that the cinematograph film subject of the present suit has already been released on various online platforms and OTT platforms. 9. Despite being served, none of the rogue websites have entered Digitally Signed CS(COMM) 364/2021 Page 6 of 8 appearance. On behalf of Defendant No.46- GoDaddy.com, LLC, it is submitted by Ms. Sahu, ld. Counsel that Defendant No.42- khatrimaza.casa was not under the control of GoDaddy at the time of the passing of the injunction order and the same was moved to another DNR just prior to the injunction order dated 9th August, 2021. It is further submitted by Ms. Sahu, ld. Counsel that the domain name of Defendant No.41- btcmovies.xyz was put under suspension by GoDaddy after the injunction order. However, since no locking order was passed, the said domain name has moved out of the control of GoDaddy. In respect of btcmovies.xyz, she confirms that blocking orders issued by the DoT/MeitY have been given effect to and the said domain name continues to remain suspended. Mr. Siddharth Varshney, ld.Counsel has appeared for Defendant No.43- Super Cassettes Industries 10. Heard. All the Defendant rogue websites have been served or are aware of the orders passed by this Court. However, none of the Defendant- domain names or further domain names which have been added have appeared before the Court. Vide order dated 1st September, 2022, ld. Joint Registrar has closed the right of the Defendant rogue websites to file written statement. The movie has already been released on various platforms including the OTT platforms and other online platforms. In view thereof, since the rights of the Plaintiffs are not in question, a permanent injunction is liable to be granted in terms of paragraph 66(i) of the plaint against all the rogue websites i.e., Defendant Nos. 1 to 42 and the other domain names added by subsequent affidavits totalling 689 additional websites/ domain names. 11. Insofar as the other Defendants who are Domain Name Registrars are Digitally Signed CS(COMM) 364/2021 Page 7 of 8 concerned, they shall ensure that the impugned domain names are suspended, locked and status quo is maintained in respect of the same. The same shall not be permitted to be transferred to any third party. The orders of blocking shall also stand confirmed permanently in respect of all the impugned domain names / websites. 12. In view of the above, the Plaintiffs do not press for any further reliefs of damages or rendition of accounts. 13. The suit is decreed in the above terms. Decree sheet be drawn accordingly. 14. All pending applications are disposed of. Digitally Signed CS(COMM) 364/2021 Page 8 of 8
The Delhi High Court has permanently stopped a total of 732 illegal websites from showing and streaming the movie "Bhuj: The Pride of India," which stars Ajay Devgn. Abhishek Dudhaiya directed the film, which came out on August 13 of last year. This movie is about the 1971 war between India and Pakistan. It is now available on many online streaming services and websites. Justice Pratibha M Singh made a decision in a lawsuit that Star India Private Limited and Novi Digital Entertainment Private Limited filed last year. They sued 42 illegal websites, asking the court to stop them forever from showing the movie to the public. On August 9 last year, the court had issued a temporary order against those 42 illegal websites, as listed in the original complaint. This order told them to stop showing the movie. But even with that temporary order, the court learned that more website addresses (URLs and domain names) were also illegally streaming the film. Because of this, the companies that filed the lawsuit (the plaintiffs) then submitted sworn statements, listing many other website addresses and websites. The court pointed out that the movie was already available on many platforms, like streaming services and other online sites. So, the court ordered: "Considering this, and since no one is questioning the rights of the companies who filed the lawsuit, a permanent order to stop these actions should be given. This applies to all the illegal websites, including the first 42 that were sued and the 689 additional website addresses and names added later through other sworn statements." The court also told the companies that register website names to make sure the disputed website addresses are stopped, locked, and kept in their current state. "These website addresses cannot be given to anyone else. The orders to block all the disputed website addresses and websites are also now made permanent," the court further stated.
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1. This hearing has been done through hybrid mode. 2. If there is one film that transcends generations of Indians, it is ‘SHOLAY’. The said film, its characters, dialogues, settings, box office collections are legendary. Undoubtedly, ‘SHOLAY’ is one of the biggest, record-breaking films that India has ever produced, in the history of Indian 3. The present suit has been filed by Sholay Media and Entertainment Pvt Ltd. and Sippy Films Pvt. Ltd. against Defendant Nos. 1 to 8 who are described hereinbelow. Defendant Nos. 1 to 3 are members of the Patel family: Mr. Yogesh Patel, Mr. Jayesh Patel and Ms. Bhavna Patel and Defendant No.4 is ‘Sholay.com Pvt. Ltd’. The said Defendants have registered the domain name ‘www.sholay.com’, published a magazine using CS(COMM) 8/2016 Page 1 of 30 the mark/name Sholay and have put on sale various merchandise, using scenes and names from the movie ‘SHOLAY’. Defendant No.5 – Netangle.com Pvt. Ltd. is a company registered by Defendant Nos. 1 to 3 as well. Defendant Nos. 6, 7, and 8 are controlling entities of the domain name 4. The film ‘SHOLAY’ was produced by Mr. G. P. Sippy and the censor certificate for the film was issued on 8th August 1975, who was running M/s. Sippy Films. It was released on Independence Day i.e., 15th August 1975. Several well-known actors and actresses namely, Mr. Sanjeev Kumar, Mr. and Amjad Khan, featured in the said film. It would not be inapposite to state that ‘SHOLAY’ has acquired a cult status and the film’s appeal has cut across geographical boundaries, language, ideology, class, etc. It has been rightly described as a film which is a part of India’s heritage. Some of the dialogues used in this film such as ‘Jo dar gaya, samjho mar gaya’, ‘Ai chhammia’, ‘Arre o Sambha’, Kitne aadmi the?’ are part of colloquial language in the Hindi heartland. It received unbeatable reviews which led to the movie being run ‘Housefull’ for more than five years. As per the Plaint, the movie is stated to have very unique features some of which are: i. ‘SHOLAY’ was the first Indian movie to market its background music/songs and dialogues. ii. The film made use of several cinematic innovations, such as the use of 70 mm format with 6 track stereophonic sound. iii. SHOLAY chalked up the record of maximum shows and the highest number of prints (1100) among Indian movies. In fact, it continues to have over 100 prints in circulation even today. CS(COMM) 8/2016 Page 2 of 30 5. Enormous investment went into the making of the film. The mention of the word ‘SHOLAY’ immediately creates a connection with the movie ‘SHOLAY’. There are industry estimates which claim that, although the words ‘SHOLAY’ may have a dictionary meaning in Hindi (specifically, ‘burning coal’), upon the movie going public, the word ‘SHOLAY’ came to be associated only with the film. 6. The rights in the word ‘SHOLAY’, which is also a registered trademark, have been recognised by Courts in favour of the Plaintiff. In judgment dated 24th August, 2015, in CS(OS) 1892/2006 titled Sholay Media and Entertainment Pvt. Ltd. and Anr. v. Parag Sanghavi and Ors. the history of the Plaintiff Companies and the devolution of rights was summarised and the Court had recognised the rights of the Plaintiffs herein - Sholay Media and Entertainment Pvt. Ltd. and Sippy Films Pvt. Ltd., in the mark ‘SHOLAY’. It was also observed that the copyright in the film which was produced by Sippy Films Pvt. Ltd. vests in the producer, in terms of Section 17 in the Copyright Act, 1957. The findings of the Court are extracted hereinbelow. 7. The grievance of the Plaintiffs in the present case is that upon coming across a magazine released in December, 2000 titled “IT-Information Technology”, the Plaintiffs learnt that the Defendants had registered the domain name ‘www.sholay.com’. The magazine was accompanied by a free compact disk (“CD”) containing the advertisement of the website. In the said article published in the magazine, the representation made was that the biggest Bollywood blockbuster has hit the internet. The article claimed ‘SHOLAY.com’ is a comprehensive site that offers you much more than its Bollywood alias did. In the said advertisement of the website, the CS(COMM) 8/2016 Page 3 of 30 Defendants sought to create an entertainment portal having various services such as chat, e-greetings, countdowns, horoscopes kid zone, classifieds, matrimonial, and grocery store, as depicted below. The website covered various subjects including, politics to cricket, finance to shopping, news updates, and bulletins from Bollywood. The said advertisement is set out CS(COMM) 8/2016 Page 4 of 30 8. The logo used by the Defendant on the CD is also extracted below: 9. The Plaintiff also learnt that the Defendants had filed a trademark application dated 11th February 1999 bearing Serial No.75638935 for the mark ‘SHOLAY’ with the United States Patent and Trademark Office (“USPTO”) in Class 42, as also in India. The said application with the USPTO was filed in the name of a Company called ‘SHOLAY.COM., INC’, which was based out of Bridgewater, New Jersey. In India, the trademark application, was filed by the Defendant No.5 Company - Netangle.com Pvt. Ltd. which was registered in Hyderabad with Mr. Jayesh Patel, Ms. Bhavna Patel and Mr. Yogesh Patel as its directors. 10. The Defendants also registered Defendant No.4-Company by the name of Sholay.com Pvt Ltd. The said name was objected to by the Plaintiffs under the provisions of Section 22 of the Companies Act, 2013. The Regional Director, Southern Region, Registrar of Companies, Chennai, in its order dated 20th December, 2000 directed the Defendant No. 2 to delete the word ‘Sholay’ from its existing name. The relevant observations of the Regional Director in its order dated 20th December, 2000 are extracted CS(COMM) 8/2016 Page 5 of 30 ''to delete the word SHOLAY from its existing name and change to some other prefix appropriately, within three months from the date of this order". "Undoubtedly it is true that the movie SHOLAY was one of the most successful films in the Indian film industry and thus it has acquired a unique reputation and goodwill. Also, the material placed before me shows that there has been a wide coverage by all leading newspapers regarding the achievements of Sholay and also the proposed new projects of the applicant company. The respondent company's name is Sholay.com Pvt Ltd and no significance of any nature was shown for the word SHOLAY and thus it is undesirable in terms of Guideline No. 23 framed under Section 20 of the Companies Act, 1956. In view of the reputation the word SHOLAY earned, the public may bonafide believe that Sholay.com Pvt. Ltd is associated with or an associate of Sholay film or the company which is the owner of the said film.” 11. A writ petition being W.P. (C) No. 4823 of 2001 was filed by the Defendants challenging the above order before the High Court of Madras. Vide final order dated 22nd April, 2003 allowing the writ petition, the impugned order dated 20th December, 2000 passed by the Regional Director, Company Affairs, Southern Region, was set aside solely on the ground of violation of principles of natural justice. The operative portion of the said order reads as under: “ 10. It is not in dispute that the petitioner has registered its name as “Sholay.Com" as early as on 21.12.1999. A direction has been given in the impugned order to the writ petitioner to delete the name "Sholay" and change the said name to some CS(COMM) 8/2016 Page 6 of 30 other prefix. Such a direction would certainly affect the right accrued on the petitioner, by virtue of the incorporation of the company and consequentially its trade. 11. Hence, in my considered view, in the absence of a reasonable opportunity to defend the application filed by the second respondent seeking for a direction under Section 22 of the Companies Act, the impugned order is liable to be set aside. Accordingly, the impugned order is set aside solely on the ground of violation of principles of natural justice. The first respondent is directed to hold the enquiry on 5.5.2003 commencing from 10.00 a.m. and if necessary on a further date fixed by him, duly intimate to either parties and pass orders on merits of the case after hearing both the petitioner and the second respondent. I make it clear that I have not expressed any opinion on the merits of the rival claims. 12. With the above observation, the impugned order is set aside and the writ petition is allowed. No costs.” 12. As per the Plaint, the manner in which the Defendants sought to misappropriate the rights of the Plaintiffs in the mark ‘SHOLAY’ has been elucidated below: “i) registering the same as a series of domain names, c) e-sholay.com, ii) Using SHOLAY as a trademark on their website, www.sholay.com in relation to various online services such as “Sholay Jobs”, “Sholay Calendar”, “Sholay Chat”, “Sholay matrimony”, “Sholay e-messages” etc. iii) Incorporating companies with the name SHOLAY, including the following: iv) Applying to register the name SHOLAY as a trademark in India and the United States of America.” 13. Apart from the above, the Defendants were also using a similar logo, colour scheme, and device and offering Ganpati silver coins, sweets and savouries from Indian Mithai shops, DVDs of the movie ‘SHOLAY’ on their website. The word ‘SHOLAY’ was also being used as a metatag by the Defendants on their web pages. 14. The use of the mark ‘SHOLAY’ on the internet caused actual confusion which has been narrated in the Plaint. A search of the word ‘SHOLAY’ returned the Defendants’ website in the list of results on various search engines, causing actual instances of confusion. The said instances have been summarised in paragraph 41 of the Plaint as under: i. On August 26, 2000, the CEO of Plaintiff No. 2, Mr. Sascha Sippy, received a letter from iAnswers.com, a New York based organisation, which stated as follows: "The other day I notice that the company sholay.com has solicited us to become one of our affiliate partners. CS(COMM) 8/2016 Page 8 of 30 If I am not mistaking you are in charge of this company and I was wondering if we could set up a meeting to discuss how iAnswers.com and sholay.com may become partners beyond a simple affiliate relationship.” ii. In and around January 2001, during a meeting between Mr. Sascha Sippy and Ms. Judi Kilachand, director of Business Programs for the Asia Society at New York, in relation to the movie SHOLAY and the Plaintiffs website esholay.com, Ms. Kilachand remarked that she was under the impression that the plaintiffs owned the website www.sholay.com. Mr. Sippy then clarified to Ms. Kilachand that this was not their website, wherein Ms. Kilachand further remarked that this website was being heavily promoted amongst the Indian community in the US. 15. According to the Plaintiffs, such use constitutes infringement, passing off, dilution and tarnishment of the well-known mark ‘SHOLAY’. The Plaintiffs, thus, filed the present suit seeking permanent injunction restraining the infringement of their registered trademark ‘SHOLAY’ by the Defendants, passing off, damages, rendition of accounts, delivery up, etc. The reliefs sought by the Defendants are extracted below: “(i) An order for permanent injunction restraining the Defendants, their directors, partners or proprietors as the case may be, their principal officers, servants and agents from operating any business, making, selling, offering for sale, advertising, or in any other manner dealing in any goods or services, under the name SHOLAY or any other name which is identical with or deceptively similar to the Plaintiffs trademark SHOLAY as an essential or dominant feature thereof, whether in the physical world or on the Internet and from doing any other thing as is likely to lead to CS(COMM) 8/2016 Page 9 of 30 passing off of the websites, business or goods/services of the Defendants as and for those of Plaintiffs; (A) An order for permanent injunction restraining the Defendants, their principal officers, partners or proprietors as the case may be, servants and agents from manufacturing, selling, offer for sale, advertising, directly or indirectly dealing in any goods/services infringing the Plaintiff’s trademark SHOLAY under application no.No.928687 and 966278 or any other mark which is deceptively similar to the Plaintiffs registered trademark SHOLAY or doing any other thing amounting to infringement of the Plaintiff’s registered trademark. (B) An order for permanent injunction restraining the Defendants, their principal officers, partners or proprietors as the case may be, servants and agents from manufacturing, selling, offer for sale, advertising, directly or indirectly dealing in any goods/services infringing the Plaintiffs trademark SHOLAY under registration Nos. 967055, 928686, 966276, 966277 and 966279 or any other mark which is deceptively similar to the Plaintiffs registered trademark SHOLAY or doing any other thing amounting to infringement of the Plaintiffs registered trademark. (ii) An order for permanent injunction restraining the Defendants, their directors, partners or proprietor as the case may be, their principal officers, servants and agents from registering domain names incorporating the name SHOLAY or any other deceptive variant thereof or using such names on the Internet, so as to lead to passing off of the website, business and goods/services of the Defendants as and for those of (iii) An order for permanent injunction restraining the Defendants, their directors, partners or proprietor as CS(COMM) 8/2016 Page 10 of 30 the case may be, their principal officers, servants and agents from operating any business, and making, selling, offering for sale, advertising, promoting or in any other manner dealing in any goods or services, under the trading style name SHOLAY or any other name which is identical with or deceptively similar to the Plaintiff’s trademark SHOLAY as an essential or dominant feature thereof, whether in the physical world or on the Internet and from doing any other thing as is likely to lead to passing off of the websites, business and goods/services of the Defendants as and for those of Plaintiffs; (iv) An order for permanent injunction restraining the Defendants, it's partners or proprietor as the case may be, it's principal officers, servants and agents and all others acting for and on it's behalf from passing off the Defendant's website as and for that of the Plaintiffs, by including the Plaintiffs trademark SHOLAY or any other receptively similar trademark thereto as a metatag in the source code of the Defendant's website, and thereby passing off such website as and for that of (v) An order for permanent injunction restraining the Defendants, their directors, partners or proprietor as the case may be, their principal officers, servants and agents from operating any business, making, selling, offering for sale, or in any manner dealing in any goods or services, under the name SHOLAY or any other name which is identical with or deceptively similar to the Plaintiff’s trademark SHOLAY as an essential or dominant feature thereof, on the Internet or otherwise and from doing any other thing as is likely to dilute the Plaintiffs trademark SHOLAY or to lead of tarnishment of the asset, which is the movie title corporate name and trademark SHOLAY. (vi) An order for transfer of all domain names incorporating the name SHOLAY or any deceptively CS(COMM) 8/2016 Page 11 of 30 similar variation thereof including sholay.com, sholay.net, e-sholay.com, sholaychat.com, sholayindia.com, sholaymall.com, sholaynews.com, sholayonline.com. sholayradio.com, sholaytv.com, Mysholay.com, Asksholay.com, sholay.fm and sholay.co.in to the Plaintiff and for delivery-up of all impugned materials, including but not limited to brochures, stationery and other printed matter, for purposes of destruction and/or erasure; (vii) An order for rendition of accounts of profit illegally earned by the Defendants on account of the infringing activities and a decree for the amount ascertained be passed in favour of the Plaintiff; (viii) An order of damages of 10 lakhs which the Plaintiff has suffered by way of the Defendants' infringing activities, such activities having seriously eroded, diluted and reduced the value of the Plaintiff’s trademark SHOLAY and caused the Plaintiff loss of business, reputation and untold hardship. (ix) An order for costs in these proceedings; and” 16. Vide order dated 21st August, 2001 in the present suit, an ex parte ad interim injunction was granted in the following terms: It is an application for exemption. Allowed, subject to all just exceptions. Suit No. 1714 /2001 & IA 7665/2001(Be numbered). Plaint be registered as suit. Summons in the suit and notice of the application be issued to the defendants by ordinary process as well as by Regd. AD cover, returnable on It has been contended by Mr. V.P. Singh, learned counsel for the plaintiff that the plaintiff has been using the word Sholay in relation to CS(COMM) 8/2016 Page 12 of 30 cinematography films, vinyl records, audio tapes and DVDs etc and has also made application for registration of trade mark ‘Sholay’ in relation to various goods, details of which have been given at page 9 of the application. The Plaintiff has also in order to expand its presence and operation on the internet registered itself in the names of SHOLAYENT.COM and SHOLAYTWO.COM’ It has been contended by Mr. V.P. Singh, learned counsel for the plaintiff that defendants 1 and 2 are directors of defendant no.4. Defendant no.5 is a sister concern of defendant no.4. Defendant no.3 who is wife of defendant no.2 and she is one of the directors of defendant no.5. Defendant no.6-Sholay.com Inc and defendant no.7 -Sybanet communications Inc. and defendant no.8- Sholay DOT Co. Incorporation are using the word ‘Sholay’ to enchash the reputation and good will of the plaintiff's trade name ‘Sholay’ which has acquired tremendous clout, good will and reputation and word SHOLAY has assumed secondary meaning. It was also contended by Mr. V. P. Singh, learned counsel for the plaintiff that from the perusal of the documents placed on record at page 240, 241 and 318, it will be borne out that the defendants are using the internationally known film Sholay's name produced by plaintiff no.2 which has now been gifted to plaintiff no.1 in advertising ‘Sholay.com’. At page 242 of the documents, the Defendants have been used on the letter head of their website Sholay.com to the following effect:- “The biggest Bollywood blockbuster has hit the Net too. Sholay.com is a comprehensive site that offers you much more than its Bollywood alias did.” From the perusal of the documents, pleadings and after hearing arguments of learned counsel for the plaintiff/ applicant, a prima facie case is made out by the applicant for grant of an ex parte injunction CS(COMM) 8/2016 Page 13 of 30 limited to the extent that defendants are restrained from using film Sholay its characters, songs, sequences, clippings in the manner whatsoever so as to promote its website Sholay.com till the next the next date of hearing. They are further restrained from using the word Sholay in relation to any film which they want to their website Sholay.com. Plaintiff to comply with the provisions of Rule 3 of Order 39 C.P.C. within one week.” 17. Thereafter, the Defendants entered appearance and filed an application challenging the territorial jurisdiction of this Court. During pendency of the present suit, some of the trademark applications of the Plaintiffs in relation to the mark ‘SHOLAY’, which were also pleaded in the Plaint, were granted registration. The Plaintiff sought amendment of the Plaint to add the said registrations which was allowed on 28th August, 2006. 18. Vide judgment dated 27th January, 2010, the application under Order 7 Rule 11 CPC was allowed and the Plaint was returned. The Plaintiffs filed an appeal against the said order - FAO (OS) No.222 of 2010 titled Sholay Media and Entertainment Pvt. Ltd. & Anr. v. Mr. Yogesh Patel & Ors. By order dated 13th March, 2014, the judgment dated 27th January, 2010 was set aside and CS (OS) No. 1714/2001 was restored along with the interim injunction. The operative portion of the said order is set out below: “3. The impugned order is patently erroneous and overlooks that the respondents have distributed CDs along with the December issue of IT Magazine which was extensively circulated in Delhi in which respondent's website SHOLAY.COM was advertised. The learned Single Judge has overlooked that when the CD was loaded it displayed the website www.sholav.com with prominence such that any user would click the same on the link to be transported to CS(COMM) 8/2016 Page 14 of 30 respondent's website and in turn could then avail of various services such as e-greetings/e-chat and goods such as DVDs sold by the respondent. The learned Single Judge has overlooked that the respondent's website is a virtual store with the ‘essential interactive features’ that permits a visitor to order goods or services and communicate with the respondents via e- mail. Cumulatively read there are sufficient pleadings to show the respondents promoting their business actively in Delhi. 6. The appeal is allowed. Impugned order dated April 27, 2010 is set aside. CS (OS) No.1714/2001 is restored. Pending applications which were dismissed as a result of the plaint being returned are revived and so are the interim injunctions which were operating.” 19. In the written statement, the Defendants took the stand that they are in the business of computer products. It is urged that the intention of the Plaintiffs is to extract money from the Defendants who have created a popular website called www.sholay.com, registered by the Defendants in the USA. The case of the Defendant was that the suit did not disclose a cause of action. The Defendants urged that a movie title is not entitled to any rights and, hence, there can be no passing off. The Plaintiffs, however, rely on Krishika Lulla v. Shyam Vithalrao Devkatta and Ors. [(2016) 2 SCC 521], to rebut that contention. 20. It was further urged that the order dated 20th December, 2000 passed by the Registrar of Companies and extracted hereinabove, was stayed by the Madras High Court, vide order dated 13th March, 2001. In fact, the Plaintiff's plea that there was no stay of the said order was false. The Defendants also claimed that the website did not have any resemblance to the movie CS(COMM) 8/2016 Page 15 of 30 ‘SHOLAY’ and the word ‘SHOLAY’ has a common dictionary meaning. In addition, third-party use of the mark ‘SHOLAY’ was also cited. The Defendants also challenged the reputation of the Plaintiffs. 21. In the year 2016, the present suit was amended again due to further registrations granted in favour of the Plaintiffs in relation to the mark ‘SHOLAY’. The various trademark registrations presently valid and subsisting are set out below: 2. SHOLAY 928619 9 Video films, tapes, cassettes etc. 3. SHOLAY 966272 14 Clocks, wristwatches, costume, Jewellery 4. SHOLAY 928687 16 Albums, Articles of paper etc. 5. SHOLAY 966273 18 All kinds of leather and imitations of 6. SHOLAY 967054 21 Cleaning material like backets etc., 7. SHOLAY 966274 25 T-shirts, jeans, caps 8. SHOLAY 966275 28 Stuffed toy figures and toy animals etc. 9. SHOLAY 966276 29 Meat, fish, poultry and game etc. 10. SHOLAY 966277 30 Coffee, tea, cocoa, sugar rice etc. 13. SHOLAY 966271 9 Video films, tapes, cassettes, etc. 14. SHOLAY 928686 9 Video films, tapes, cassettes, etc. 22. Mediation was explored to resolve the disputes. However, the same had failed. There has been no appearance on behalf of the Defendants 20th March, 2019 onwards. The interim order already granted on 21st August, 2001 was confirmed on 14th March 2022 by this Court. Even today, none appears for the Defendants. 23. Mr. Anand, ld. Counsel appearing for the Plaintiffs submits that he has filed his written submissions and has urged that the Defendants were misusing the mark ‘SHOLAY’. He further argued that the Defendants’ adoption of the mark was not bona fide or innocent. The Defendants did not adopt the mark ‘SHOLAY’ only as a part of the domain name being www.sholay.com, but also in the following manner: i. by registering a series of domain names; ii. by using the word ‘SHOLAY’ as part of the corporate name; iii. by applying for the registrations of the mark ‘SHOLAY’ in India as also in the USA; iv. by using an identical logo of ‘SHOLAY’; v. by offering the DVD of the Plaintiff’s film ‘SHOLAY’ on their vi. by using the name ‘SHOLAY’ as a meta tag. 24. The Plaintiffs revealed the intention of the Defendants to foreclose the CS(COMM) 8/2016 Page 17 of 30 natural expansion of the Plaintiffs in the virtual space. The various defences raised by the Defendants in the written statement have also been addressed by the Plaintiffs in their written submissions. 25. The Defendants have already been proceeded ex parte in this matter. The rights in the mark ‘SHOLAY’ vesting in the Plaintiff’s has already been judicially recognised in the decision dated 24th August, 2015 in CS(OS) 1892/2006 titled Sholay Media and Entertainment Pvt. Ltd. and Anr. v. Parag Sanghavi and Ors. 26. Thus, the question that arises is whether any ex parte evidence would be required in this case. On behalf of the Plaintiffs, the following two aspects have been urged: i. That the rights in the mark ‘SHOLAY’ vest in the Plaintiffs, ii. That the Defendants conduct constitutes infringement and violation of statutory and common law rights in the mark 27. Insofar as the first aspect of the rights of the Plaintiffs, is concerned, the same has already been recognised in the earlier judicial decision dated 24th August, 2015 in CS(OS) 1892/2006 titled Sholay Media and Entertainment Pvt. Ltd. and Anr. v. Parag Sanghavi and Ors. The findings in the said decision are set out below: “3. The plaintiffs are the copyright owners and administer all intellectual property in respect of 32 cinematograph films, including the iconic and eternal hit film "SHOLAY". The other hits in the Sippy repertoire of films include films such as ‘Johar Mehmood in Goa', Bhramachari', Bandhan', Andaz', CS(COMM) 8/2016 Page 18 of 30 Phool', Sheshensha Hameshaa' etc. 4. The history of the plaintiffs companies and devolution of rights in the film is summarized herein a) 26th November, 1954: Plaintiff No.2 was incorporated under the leadership of the late Mr. G.P. Sippy to produce and handle distribution of cinematograph films. Certificate of Incorporation and Memorandum and Articles of Association of plaintiff No.2 has been exhibited as Ex PW 1/3 and Ex PW 1/4. b) 3rd August, 1965: M/s Sippy Films, a partnership firm, was formed. Films belonging to the Sippy repertoire were produced through this firm. Table summarizing the dates of appointment and retirement of various members of the Sippy family who became partners in the firm and Directors of plaintiff No.2 has been marked as Mark A. • Mr. Ajit Sippy (defendant No.7), through whom defendant Nos.3, 5 and 6 claimed to have acquired certain rights, was admitted as a partner of M/s Sippy Films on 1st January, 1976 and retired on 15th September, 1976. The retirement deed by virtue of which defendant No.7 relinquished all rights in the Sippy repertoire has been exhibited as Ex PW1/5. c) 10th September, 1997: Plaintiff No.2 was admitted as a partner in the partnership firm. The deed of partnership has been marked as Mark N. d) 11th September, 1997: M/s Sippy films, the erstwhile partnership firm has only two partners remaining i.e. Mr. Vijay Sippy and plaintiff No.2. The deed of partnership has been marked as Mark O. e) 17th April, 1998: Dissolution of the partnership firm on the death of Mr. Vijay Sippy. Extract from the Register of Partnerships certifying the dissolution of CS(COMM) 8/2016 Page 19 of 30 M/s Sippy Films has been exhibited Ex PW1/9. After dissolution of the partnership firm, plaintiff No.2 through Mr. Sascha Sippy, the sole heir of Mr. Vijay Sippy and one of the Directors of plaintiff No.2, continued to exercise all rights in the Sippy repertoire and the name Sippy Films' came to denote a proprietary concern of plaintiff No.2. The last will of Mr. Vijay Sippy in favour of his son Mr. Sascha Sippy has been marked Mark C. f) 11th September, 2000: Plaintiff No.1 was incorporated in order to capitalize on the brand value and merchandising potential inherent in the iconic hit film ‘Sholay'. Copies of the certificate of Incorporation, Articles and Memorandum of Association of plaintiff No.1 has been exhibited as Ex PW 1/11and Ex PW 1/12. The gift deed dated 14th September, 2000 whereby plaintiff No.2 transferred all the right, title and interest in the film Sholay to plaintiff No.1 has been exhibited as Ex PW1/13. 16. As a consequence of gift deed dated 14th September, 2000, the copyright in the cinematographic film SHOLAY stood transferred to plaintiff No.1. Thus, plaintiff No.1 is the owner of the copyright as well as all common law rights in the cinematographic film SHOLAY and the constituent parts of the cinematographic film SHOLAY. By virtue of being the owner of copyright in the cinematographic film SHOLAY as well as those of its constituent parts i.e. the screenplay, script, sound recordings (i.e., songs and recording of the back ground music), musical works, lyrics, artwork etc. the plaintiffs are thus according certain exclusive rights under Section 14 of the Copyright Act, 1957. These exclusive rights accord plaintiff No.1 the exclusive right to exploit the cinematographic film SHOLAY under Section 14(d) of the Copyright Act, 1957.” 28. In view of the above conclusions, the aspect of rights vested in the Plaintiffs stands adjudicated and there appears to be no challenge to the same. Ld. Counsel for the Plaintiff has submitted that the said judgement is not under challenge. 29. Thus, only the second issue remains to be considered, as to whether the future use of the word/mark/name ‘SHOLAY’ is liable to be injuncted. The Defendants do not dispute the following facts: i. That the Defendants have registered various domain names with the mark ‘SHOLAY’. ii. That the Defendants have applied for registrations of the marks in India and in the USA. iii. That the Defendants are using the word ‘SHOLAY’ as a prominent part of their corporate name. 30. The Defendants only seek to justify their use of the Plaintiffs’ mark ‘SHOLAY’ by urging that: i. Film titles are not entitled to protection and that they have applied for registration earlier. ii. There is no probability of confusion on the internet and that ‘SHOLAY’ is a dictionary word. 31. In respect of the above contentions of the Defendants, following the rationale of the judgment of the ld. Single Judge of this Court in Disney Enterprises Inc. & Anr. v. Balraj Muttneja &Ors. [CS (OS) 3466/2012 decided on 20th February, 2014], this Court is of the opinion that no evidence needs to be adduced inasmuch as the facts are not seriously in dispute in this case. The same has been reiterated by the Court in S. Oliver Bernd Freier GMBH & CO. KG v. Jaikara Apparels and Ors. [210 (2014) CS(COMM) 8/2016 Page 21 of 30 DLT 381], as also, in United Coffee House v. Raghav Kalra and Ors. [2013 (55) PTC 414 (Del)]. The relevant observations from the judgment in Disney Enterprises Inc. (supra), are as under: “3. Though the defendants entered appearance through their counsel on 01.02.2013 but remained unrepresented thereafter and failed to file a written statement as well. The defendants were thus directed to be proceeded ex-parte vide order dated 04.10.2013and the plaintiffs permitted to file affidavits by way of exparte evidence. 4. The plaintiffs, despite having been granted sufficient time and several opportunities, have failed to get their affidavits for leading ex-parte evidence on record. However, it is not deemed expedient to further await the same and allow this matter to languish, for the reason that I have in Indian Performing Rights MANU/DE/0582/2013 held that where the defendant is ex parte and the material before the Court is sufficient to allow the claim of the plaintiff, the time of the Court should not be wasted in directing ex parte evidence to be recorded and which mostly is nothing buta repetition of the contents of the plaint.” 32. Since the Defendants have not entered appearance and led evidence in support of the contentions raised, the defences raised by the Defendants in their pleadings are considered hereinbelow: i. Contention: That the Defendants applied for the mark ‘SHOLAY’ on 16th April, 1999 in India and 11th February, 1999 in the USA, prior to the Plaintiffs. The Defendants also incorporated the Defendant No.4- Company with the name ‘SHOLAY’ as early as on 21st December, 1999. Admittedly, the Plaintiffs applied for registrations in the USA in the year 2000 and in India, the earliest application dates back to CS(COMM) 8/2016 Page 22 of 30 Finding: The Defendants claim that their application is prior to the application and registration of the mark by the Plaintiffs. This claim is bereft of any force, inasmuch as the film ‘SHOLAY’ of the Plaintiffs was released in the year 1975, much before the application for registration and the incorporation of the Company by the Defendants. The manner of use of the word ‘SHOLAY’ by the Defendants, is not descriptive, but is a clear indication of an association with the Plaintiffs’ film. The offering of the CD and the DVD of the film ‘SHOLAY’ on the website of the Defendants shows that the Defendants’ adoption is, in fact, mala fide and dishonest. Moreover, the Defendants have registered a series of domain names identical and deceptively similar to the name of the film ‘SHOLAY’, which cannot be justified in any manner, especially when the Defendants own and could have used any of their other registered domain names, such as ‘zerozone.com’. Their use of identical domain names is nothing but an attempt to encash the goodwill enjoyed by the blockbuster movie ‘SHOLAY’ of the Plaintiffs. The Plaintiffs clearly have a cause of action under Section 27 of the Trademarks Act, 1999 to sue for passing off. The mark ‘Sholay’ enjoys continued goodwill in India. As and when more and more media have evolved for the communication of a film, the rights in ‘SHOLAY’ have been licensed/assigned by the Plaintiffs. The mark ‘SHOLAY’ has already been recognised as a well-known mark. Thus, the mere earlier trademark applications or use as part of a corporate name would not vest any prior rights in favour of the Defendants. CS(COMM) 8/2016 Page 23 of 30 ii. Contention: The goods and services offered by the Plaintiffs and Defendants are different, unrelated and not overlapping. Finding: The Plaintiffs have a large number of registrations as set out hereinabove. The activities of the Defendants would be covered by most of these registrations. The content in a movie is no longer merely restricted to theatrical screening, but also to online platforms and other electronic platforms. Thus, the internet has itself created an additional market for ‘SHOLAY’, which is a film nearly 50 years old. The adoption by the Defendants is with complete knowledge of the Plaintiffs’ film, especially considering that the Defendants’ companies are being run by Indians, who are more than likely to be aware of the film ‘SHOLAY’. The goods and services being offered can be considered as being off shoots emanating from the Plaintiffs. iii. Contention: Titles of films cannot be Trademarks. Finding: The word ‘SHOLAY’, is the title of an iconic film, and consequently, as a mark having been associated with the film, produced and now vesting in the Plaintiffs, cannot be held to be devoid of protection. Certain films cross the boundaries of just being ordinary words and the title of the film ‘SHOLAY’ is one of them. Titles and films are capable of being recognised under trademark law and in India ‘SHOLAY’ would be a classic example of such a case. On this issue, the Supreme Court in Krishika Lulla & Ors. V. Shyam Vithalrao Devkatta & Anr. [(2016) 2 SCC 521] has held as under: “19. We are thus, of the view that no copyright subsists in the title of a literary work and a plaintiff or a complainant is not entitled to relief on such basis except in an action for passing off or in respect of a CS(COMM) 8/2016 Page 24 of 30 registered trade mark comprising such titles. This does not mean that in no case can a title be a proper subject of protection against being copied as held in Dicks v. Yates where Jessel M.R. said “there might be copyright in a title as for instance a whole page of title or something of that kind requiring invention” or as observed by Copinger (supra).” Similar is the view taken by the ld. Single Judge of this Court in Kanungo Media (P) Ltd. v. RGV Film Factory & Ors. [2007 SCC OnLine Del 314], wherein it was observed as under: “18. Whether titles of single literary works can be registered as trade mark or not has itself become debatable in the US, though in the case of titles of series of literary work, judicial opinion is that they are registrable. However, it is not necessary to go into this debate inasmuch as the plaintiff's title ‘Nisshabd’ for its film is not registered as trademark. The case at hand is, therefore, while applying the legal protection given to such titles under the Trade Marks Act is to be considered on the principle applicable in the cases of passing off of such trademarks. In passing off, necessary ingredient to be established is the likelihood of confusion and for establishing this ingredient it becomes necessary to prove that the title has acquired secondary meaning. Thus, in case of unregistered title following ingredients are to be proved in order to triumph in an injunction suit:— (i) Title has acquired the secondary meaning; (ii) There is likelihood of confusion of source, affiliation, sponsorship or connection of potential buyers/audience/viewers.” iv. Contention: The Defendants contend that ‘Sholay.com’ is a website on the internet which is used by educated persons, which would consequently lead to lesser likelihood of confusion. CS(COMM) 8/2016 Page 25 of 30 Finding: Insofar as internet usage is concerned, the said platform is now being accessed by billions of users across the world who may range from very educated to even illiterate people. In this day and age, the internet as a medium has become a platform for dissemination, communication and empowerment to the common man. Thus, in the opinion of this Court, the contention that the internet is only being used by educated persons is unacceptable. It would be easy for any person, not just educated individuals, to establish a connection between the Plaintiffs’ film and the Defendants’ website. The use of identical logos, marks and names originating from the movie ‘SHOLAY’ further confound the issue. Moreover, the chances of confusion which have been narrated in the Plaint and extracted hereinabove, leave no doubt in the mind of the Court that there is every likelihood of confusion. v. Contention: The subject matter of the present suit is substantially similar to that in the proceedings in the writ petition filed before Finding: The writ petition being W.P. (C) No. 4823 of 2001, filed before the Madras High Court which emanated under Section 22 of the Companies Act was of limited scope. The said writ petition now stands disposed of. The present suit is a broad suit seeking prayers qua infringement, passing off, dilution, etc. The use of the mark ‘SHOLAY’ as part of domain names and company names, etc. are completely illegal and unlawful in these facts. The acclaimed status of the film ‘SHOLAY’ in India has also been recognised by the Bombay High Court while dealing with a case relating to another movie titled CS(COMM) 8/2016 Page 26 of 30 ‘Veere Di Wedding’. In the said judgement in Anil Kapoor Film Co. Pvt. Ltd. v. Make My Day Entertainment & Anr [2017 SCC OnLine Bom 8119], Justice G.S. Patel has observed the following in relation “20. Finally, there is the title itself. It is a common place phrase in one or more of our many vernacular tongues. It means “my best friend’s wedding”. There are, I imagine, titles of some books and movies (and songs or melodies) that by themselves are sufficiently unique: Gravity’s Rainbow, perhaps, or The Catcher in the Rye, To Kill A Mockingbird, and so on. In cinema, too, this may be so: Citizen Kane, Blade Runner, many of the Bond movies (Goldfinger, Thunderball, The Quantum of Solace), Aguirre the Wrath of God, Fitzcarraldo, etc. But the fact that the title is unique is not in itself sufficient to establish reputation, nor is the fact that there has been a previous book or a film with the same name. There is absolutely no shortage of films that have exactly the same title but are very different otherwise and share nothing else in common. These instances put us squarely within the frame of the ration in KM Multani: in that case, too, there were two competing films with the same name but nothing else. There exist many films with exactly the same title but different contents. It is not shown, or even urged, that for these films an action in passing off succeeded, was ever filed, or even could have been filed merely because the two titles were the same. George Tillman Jr’s 2009 Notorious is about as far as it is possible to be from Alfred Hitchcock’s 1946 work of the same name; and this is true too of several others. There is not a suggestion in the plaint that, apart from the title, there is any commonality between the Plaintiff’s forthcoming film and that of the 1st Defendant. When therefore the Plaintiff argues that an action in passing off lies in respect of a title of a film, CS(COMM) 8/2016 Page 27 of 30 though not in copyright infringement, this is inaccurate. A work may gain reputation on publication or release. In showing reputation, a plaintiff must show that his work with that name is associated in the public mind only with that film or book, one that exists. When the title is unusual or unique, it might make the task of a plaintiff somewhat easier, but I think it is difficult to conceive of a reputation attaching to a non-existent thing — a film not made or a book not written — no matter how unique the title. Where the title is more commonplace, the burden of establishing a reputation might lie heavier; but that burden is never discharged by saying only, as the present Plaintiff does, that it has plans to make a movie with a particular title and others have spoken of it. Films with names Gaslight, Birth of a Nation, Casablanca, Bicycle Thieves, or hundreds of others; and, closer home, of films with commonplace titles like Zanjeer, Deewar, Anand, Pyaasa or Sholay — the list is endless — are all instances of film that, with possibly ordinary titles, acquired a reputation in those titles upon their release. The ‘reputation’ of these films has, over time, been so established that the titles uniquely connote these films and no other. I do not think that is even remotely true of the Plaintiff’s yet-to-be-made film. Thus, when a plaintiff claims passing off in a title simpliciter, independently of any content similarity, he reaches well beyond the considerations of KM Multani (where, incidentally, there was, in relation to reputation, an overview of the content). It is, I think, prima facie exceedingly difficult to conceive of reputation attaching to a title alone, of a thing not in existence, divorced entirely from content. This burden is not, prima facie, sufficiently discharged to warrant an ad- interim injunction.” 33. The highlighted portion of the paragraph above judicially acknowledges the reputation in the film title ‘SHOLAY’, which is now CS(COMM) 8/2016 Page 28 of 30 34. Under the facts and circumstances of the present case, the following directions are issued: i. The present suit is decreed in terms of the reliefs sought in paragraph 60(i) to (vi) as also 60(viii) and (ix) of the Plaint. Accordingly, the Defendants, their directors, partners, proprietor and anyone acting for and on their behalf are restrained from using the name ‘SHOLAY’ in respect of any goods and services and also from using the domain name ‘Sholay.com’ and making any reference to the movie ‘SHOLAY’ or using any images or clippings from the said movie, as also from selling merchandise using the name SHOLAY or any images from the said cinematographic film. The Defendants shall also stand restrained from using any variation of the mark/name ‘SHOLAY’ on the internet or otherwise including use as a metatag in the source code. ii. In terms of the relief as sought in paragraph 60(vi), the concerned domain names registrars are directed to transfer the infringing domain names to the Plaintiffs, within one week of the receipt of the present order and the details of the Plaintiffs. iii. The statement of costs has been filed by the Plaintiffs. The same is taken on record. Though, the cost statement has been filed showing expenses to the tune of Rs.6,58,036.00/- on various accounts including court fee, miscellaneous expenses and legal fee. It is also submitted by ld. Counsel for Plaintiffs that a substantial quantum of services were rendered even on pro bono basis. Considering the observations of the Supreme Court on the issue of costs to be awarded CS(COMM) 8/2016 Page 29 of 30 in commercial matters in Uflex Ltd. v. Government of Tamil Nadu & Ors. [Civil Appeal Nos.4862-4863 of 2021, decided on 17th September, 2021], actual costs ought to be awarded, keeping in mind the bill of costs, including counsel fees. In the present case, the Defendants have contested this matter for over 20 years. The adoption of the mark ‘SHOLAY’ by the Defendants was clearly mala fide and dishonest, owing to the use of the infringing logo, designs, selling of the DVD of the film ‘SHOLAY’ on the Defendants’ website, etc. For the reasons contained above, this Court is convinced that this is a fit case for award of costs to the Plaintiffs. Accordingly, the present suit is decreed for a sum of Rs.25,00,000/- as costs and damages, in terms of the relief as sought in paragraph 60(ix) of the Plaint. 35. The Defendant shall pay the said amount within three months, failing which, the Plaintiff is permitted to avail of its remedies in accordance with law for execution of the decree. 36. All pending applications are also disposed of. Decree sheet be drawn (corrected & released on 23rd May, 2022) CS(COMM) 8/2016 Page 30 of 30
The Delhi High Court recently disagreed with the argument that movie titles cannot be protected as brand names. It decided that 'SHOLAY,' as the title of a very famous movie, deserves legal protection. Justice Pratibha M Singh also said that some movies become more than just common words, and 'SHOLAY' is one such movie title. The Court stated that movie titles can be recognized and protected by trademark law, and 'SHOLAY' is a perfect example of this in India. It added that if there is one movie that connects with all age groups in India, it is 'SHOLAY.' The movie, its characters, lines, locations, and earnings are all legendary. Without a doubt, 'SHOLAY' is one of the biggest, record-breaking films ever made in Indian cinema. Just hearing the word 'SHOLAY' immediately makes people think of the movie. Film experts suggest that even though 'SHOLAY' may mean 'burning coal' in Hindi, most moviegoers now only link the word to the film. Therefore, the Court ordered a payment of Rs. 25,00,000/- for expenses and harm to Sholay Media and Entertainment Pvt Ltd. and Sippy Films Pvt. Ltd., the companies that own the rights to the movie. The Court ruled against the Defendants (the people who were sued). They had registered the website address 'www.sholay.com,' published a magazine using the name 'Sholay,' and sold various products with scenes and names from the movie 'SHOLAY.' The Court pointed out that the legal rights to the word 'SHOLAY,' which is also a registered brand name, had already been confirmed by earlier court decisions, favoring the companies that sued. It mentioned that in a ruling from August 24, 2015, in a case called Sholay Media and Entertainment Pvt. Ltd. and another versus Parag Sanghavi and others, the Court had upheld the Plaintiffs' rights to the 'SHOLAY' brand name. The Plaintiffs' complaint was that they found out about the Defendants' actions when they saw a magazine called "IT-Information Technology" in December 2000. They discovered that the Defendants had registered the website 'www.sholay.com.' The Plaintiffs also learned that the Defendants had tried to register 'SHOLAY' as a brand name in both the United States and India back in February 1999. According to the Plaintiffs, the Defendants' use of the name was illegal. They said it was *infringement* (copying their protected brand name), *passing off* (making people think their products were linked to the movie), and *dilution* (making the famous 'SHOLAY' brand less special or hurting its reputation). So, the Plaintiffs filed a lawsuit asking for a *permanent injunction* (a lasting court order) to stop the Defendants from violating their registered 'SHOLAY' trademark, from deceiving people, and also asked for money for the harm caused, among other legal actions. The Court stated that the brand name 'SHOLAY' is already known as a very famous brand. Therefore, the Defendants' earlier attempts to register the trademark or their use of 'Sholay' in a company name did not give them any superior legal rights. Furthermore, it noted that billions of people worldwide, from highly educated to those who cannot read, use the internet today. It said that the internet has become a way to share information, communicate, and give power to ordinary people. Thus, in the opinion of this Court, the argument that only educated people use the internet was wrong. It said that any person, not just educated individuals, could easily see a connection between the Plaintiffs' movie and the Defendants' website. The use of the same logos, trademarks, and names from the movie 'SHOLAY' made the problem even clearer. Also, the chances of confusion, as explained in the lawsuit and mentioned earlier, left no doubt in the Court's mind that people would very likely be confused. Therefore, the Court ordered the Defendants to stop using the name 'SHOLAY' for any products or services. They were also forbidden from using the website address 'Sholay.com,' mentioning the movie 'SHOLAY' in any way, or using any pictures or video clips from the movie. This also included selling products with the name 'SHOLAY' or images from the film. The Court further stated that the Defendants must also stop using any similar version of the 'SHOLAY' name or brand online or anywhere else, including using it as a hidden tag in website code. Further noting that the Defendants had fought this case for over 20 years, the Court believed that the Defendants' decision to use the 'SHOLAY' brand name was clearly done with bad intentions and was dishonest. This was evident from their use of a logo and designs that violated rights, and by selling the 'SHOLAY' movie DVD on their website. Because of all the reasons mentioned, this Court was sure that this was a suitable case to order payment for the Plaintiffs' legal costs. Accordingly, the Court ordered the Defendants to pay Rs. 25,00,000/- for expenses and damages, just as the Plaintiffs had requested in their initial lawsuit.
1. This hearing has been done through hybrid mode. 2. If there is one film that transcends generations of Indians, it is ‘SHOLAY’. The said film, its characters, dialogues, settings, box office collections are legendary. Undoubtedly, ‘SHOLAY’ is one of the biggest, record-breaking films that India has ever produced, in the history of Indian 3. The present suit has been filed by Sholay Media and Entertainment Pvt Ltd. and Sippy Films Pvt. Ltd. against Defendant Nos. 1 to 8 who are described hereinbelow. Defendant Nos. 1 to 3 are members of the Patel family: Mr. Yogesh Patel, Mr. Jayesh Patel and Ms. Bhavna Patel and Defendant No.4 is ‘Sholay.com Pvt. Ltd’. The said Defendants have registered the domain name ‘www.sholay.com’, published a magazine using CS(COMM) 8/2016 Page 1 of 30 the mark/name Sholay and have put on sale various merchandise, using scenes and names from the movie ‘SHOLAY’. Defendant No.5 – Netangle.com Pvt. Ltd. is a company registered by Defendant Nos. 1 to 3 as well. Defendant Nos. 6, 7, and 8 are controlling entities of the domain name 4. The film ‘SHOLAY’ was produced by Mr. G. P. Sippy and the censor certificate for the film was issued on 8th August 1975, who was running M/s. Sippy Films. It was released on Independence Day i.e., 15th August 1975. Several well-known actors and actresses namely, Mr. Sanjeev Kumar, Mr. and Amjad Khan, featured in the said film. It would not be inapposite to state that ‘SHOLAY’ has acquired a cult status and the film’s appeal has cut across geographical boundaries, language, ideology, class, etc. It has been rightly described as a film which is a part of India’s heritage. Some of the dialogues used in this film such as ‘Jo dar gaya, samjho mar gaya’, ‘Ai chhammia’, ‘Arre o Sambha’, Kitne aadmi the?’ are part of colloquial language in the Hindi heartland. It received unbeatable reviews which led to the movie being run ‘Housefull’ for more than five years. As per the Plaint, the movie is stated to have very unique features some of which are: i. ‘SHOLAY’ was the first Indian movie to market its background music/songs and dialogues. ii. The film made use of several cinematic innovations, such as the use of 70 mm format with 6 track stereophonic sound. iii. SHOLAY chalked up the record of maximum shows and the highest number of prints (1100) among Indian movies. In fact, it continues to have over 100 prints in circulation even today. CS(COMM) 8/2016 Page 2 of 30 5. Enormous investment went into the making of the film. The mention of the word ‘SHOLAY’ immediately creates a connection with the movie ‘SHOLAY’. There are industry estimates which claim that, although the words ‘SHOLAY’ may have a dictionary meaning in Hindi (specifically, ‘burning coal’), upon the movie going public, the word ‘SHOLAY’ came to be associated only with the film. 6. The rights in the word ‘SHOLAY’, which is also a registered trademark, have been recognised by Courts in favour of the Plaintiff. In judgment dated 24th August, 2015, in CS(OS) 1892/2006 titled Sholay Media and Entertainment Pvt. Ltd. and Anr. v. Parag Sanghavi and Ors. the history of the Plaintiff Companies and the devolution of rights was summarised and the Court had recognised the rights of the Plaintiffs herein - Sholay Media and Entertainment Pvt. Ltd. and Sippy Films Pvt. Ltd., in the mark ‘SHOLAY’. It was also observed that the copyright in the film which was produced by Sippy Films Pvt. Ltd. vests in the producer, in terms of Section 17 in the Copyright Act, 1957. The findings of the Court are extracted hereinbelow. 7. The grievance of the Plaintiffs in the present case is that upon coming across a magazine released in December, 2000 titled “IT-Information Technology”, the Plaintiffs learnt that the Defendants had registered the domain name ‘www.sholay.com’. The magazine was accompanied by a free compact disk (“CD”) containing the advertisement of the website. In the said article published in the magazine, the representation made was that the biggest Bollywood blockbuster has hit the internet. The article claimed ‘SHOLAY.com’ is a comprehensive site that offers you much more than its Bollywood alias did. In the said advertisement of the website, the CS(COMM) 8/2016 Page 3 of 30 Defendants sought to create an entertainment portal having various services such as chat, e-greetings, countdowns, horoscopes kid zone, classifieds, matrimonial, and grocery store, as depicted below. The website covered various subjects including, politics to cricket, finance to shopping, news updates, and bulletins from Bollywood. The said advertisement is set out CS(COMM) 8/2016 Page 4 of 30 8. The logo used by the Defendant on the CD is also extracted below: 9. The Plaintiff also learnt that the Defendants had filed a trademark application dated 11th February 1999 bearing Serial No.75638935 for the mark ‘SHOLAY’ with the United States Patent and Trademark Office (“USPTO”) in Class 42, as also in India. The said application with the USPTO was filed in the name of a Company called ‘SHOLAY.COM., INC’, which was based out of Bridgewater, New Jersey. In India, the trademark application, was filed by the Defendant No.5 Company - Netangle.com Pvt. Ltd. which was registered in Hyderabad with Mr. Jayesh Patel, Ms. Bhavna Patel and Mr. Yogesh Patel as its directors. 10. The Defendants also registered Defendant No.4-Company by the name of Sholay.com Pvt Ltd. The said name was objected to by the Plaintiffs under the provisions of Section 22 of the Companies Act, 2013. The Regional Director, Southern Region, Registrar of Companies, Chennai, in its order dated 20th December, 2000 directed the Defendant No. 2 to delete the word ‘Sholay’ from its existing name. The relevant observations of the Regional Director in its order dated 20th December, 2000 are extracted CS(COMM) 8/2016 Page 5 of 30 ''to delete the word SHOLAY from its existing name and change to some other prefix appropriately, within three months from the date of this order". "Undoubtedly it is true that the movie SHOLAY was one of the most successful films in the Indian film industry and thus it has acquired a unique reputation and goodwill. Also, the material placed before me shows that there has been a wide coverage by all leading newspapers regarding the achievements of Sholay and also the proposed new projects of the applicant company. The respondent company's name is Sholay.com Pvt Ltd and no significance of any nature was shown for the word SHOLAY and thus it is undesirable in terms of Guideline No. 23 framed under Section 20 of the Companies Act, 1956. In view of the reputation the word SHOLAY earned, the public may bonafide believe that Sholay.com Pvt. Ltd is associated with or an associate of Sholay film or the company which is the owner of the said film.” 11. A writ petition being W.P. (C) No. 4823 of 2001 was filed by the Defendants challenging the above order before the High Court of Madras. Vide final order dated 22nd April, 2003 allowing the writ petition, the impugned order dated 20th December, 2000 passed by the Regional Director, Company Affairs, Southern Region, was set aside solely on the ground of violation of principles of natural justice. The operative portion of the said order reads as under: “ 10. It is not in dispute that the petitioner has registered its name as “Sholay.Com" as early as on 21.12.1999. A direction has been given in the impugned order to the writ petitioner to delete the name "Sholay" and change the said name to some CS(COMM) 8/2016 Page 6 of 30 other prefix. Such a direction would certainly affect the right accrued on the petitioner, by virtue of the incorporation of the company and consequentially its trade. 11. Hence, in my considered view, in the absence of a reasonable opportunity to defend the application filed by the second respondent seeking for a direction under Section 22 of the Companies Act, the impugned order is liable to be set aside. Accordingly, the impugned order is set aside solely on the ground of violation of principles of natural justice. The first respondent is directed to hold the enquiry on 5.5.2003 commencing from 10.00 a.m. and if necessary on a further date fixed by him, duly intimate to either parties and pass orders on merits of the case after hearing both the petitioner and the second respondent. I make it clear that I have not expressed any opinion on the merits of the rival claims. 12. With the above observation, the impugned order is set aside and the writ petition is allowed. No costs.” 12. As per the Plaint, the manner in which the Defendants sought to misappropriate the rights of the Plaintiffs in the mark ‘SHOLAY’ has been elucidated below: “i) registering the same as a series of domain names, c) e-sholay.com, ii) Using SHOLAY as a trademark on their website, www.sholay.com in relation to various online services such as “Sholay Jobs”, “Sholay Calendar”, “Sholay Chat”, “Sholay matrimony”, “Sholay e-messages” etc. iii) Incorporating companies with the name SHOLAY, including the following: iv) Applying to register the name SHOLAY as a trademark in India and the United States of America.” 13. Apart from the above, the Defendants were also using a similar logo, colour scheme, and device and offering Ganpati silver coins, sweets and savouries from Indian Mithai shops, DVDs of the movie ‘SHOLAY’ on their website. The word ‘SHOLAY’ was also being used as a metatag by the Defendants on their web pages. 14. The use of the mark ‘SHOLAY’ on the internet caused actual confusion which has been narrated in the Plaint. A search of the word ‘SHOLAY’ returned the Defendants’ website in the list of results on various search engines, causing actual instances of confusion. The said instances have been summarised in paragraph 41 of the Plaint as under: i. On August 26, 2000, the CEO of Plaintiff No. 2, Mr. Sascha Sippy, received a letter from iAnswers.com, a New York based organisation, which stated as follows: "The other day I notice that the company sholay.com has solicited us to become one of our affiliate partners. CS(COMM) 8/2016 Page 8 of 30 If I am not mistaking you are in charge of this company and I was wondering if we could set up a meeting to discuss how iAnswers.com and sholay.com may become partners beyond a simple affiliate relationship.” ii. In and around January 2001, during a meeting between Mr. Sascha Sippy and Ms. Judi Kilachand, director of Business Programs for the Asia Society at New York, in relation to the movie SHOLAY and the Plaintiffs website esholay.com, Ms. Kilachand remarked that she was under the impression that the plaintiffs owned the website www.sholay.com. Mr. Sippy then clarified to Ms. Kilachand that this was not their website, wherein Ms. Kilachand further remarked that this website was being heavily promoted amongst the Indian community in the US. 15. According to the Plaintiffs, such use constitutes infringement, passing off, dilution and tarnishment of the well-known mark ‘SHOLAY’. The Plaintiffs, thus, filed the present suit seeking permanent injunction restraining the infringement of their registered trademark ‘SHOLAY’ by the Defendants, passing off, damages, rendition of accounts, delivery up, etc. The reliefs sought by the Defendants are extracted below: “(i) An order for permanent injunction restraining the Defendants, their directors, partners or proprietors as the case may be, their principal officers, servants and agents from operating any business, making, selling, offering for sale, advertising, or in any other manner dealing in any goods or services, under the name SHOLAY or any other name which is identical with or deceptively similar to the Plaintiffs trademark SHOLAY as an essential or dominant feature thereof, whether in the physical world or on the Internet and from doing any other thing as is likely to lead to CS(COMM) 8/2016 Page 9 of 30 passing off of the websites, business or goods/services of the Defendants as and for those of Plaintiffs; (A) An order for permanent injunction restraining the Defendants, their principal officers, partners or proprietors as the case may be, servants and agents from manufacturing, selling, offer for sale, advertising, directly or indirectly dealing in any goods/services infringing the Plaintiff’s trademark SHOLAY under application no.No.928687 and 966278 or any other mark which is deceptively similar to the Plaintiffs registered trademark SHOLAY or doing any other thing amounting to infringement of the Plaintiff’s registered trademark. (B) An order for permanent injunction restraining the Defendants, their principal officers, partners or proprietors as the case may be, servants and agents from manufacturing, selling, offer for sale, advertising, directly or indirectly dealing in any goods/services infringing the Plaintiffs trademark SHOLAY under registration Nos. 967055, 928686, 966276, 966277 and 966279 or any other mark which is deceptively similar to the Plaintiffs registered trademark SHOLAY or doing any other thing amounting to infringement of the Plaintiffs registered trademark. (ii) An order for permanent injunction restraining the Defendants, their directors, partners or proprietor as the case may be, their principal officers, servants and agents from registering domain names incorporating the name SHOLAY or any other deceptive variant thereof or using such names on the Internet, so as to lead to passing off of the website, business and goods/services of the Defendants as and for those of (iii) An order for permanent injunction restraining the Defendants, their directors, partners or proprietor as CS(COMM) 8/2016 Page 10 of 30 the case may be, their principal officers, servants and agents from operating any business, and making, selling, offering for sale, advertising, promoting or in any other manner dealing in any goods or services, under the trading style name SHOLAY or any other name which is identical with or deceptively similar to the Plaintiff’s trademark SHOLAY as an essential or dominant feature thereof, whether in the physical world or on the Internet and from doing any other thing as is likely to lead to passing off of the websites, business and goods/services of the Defendants as and for those of Plaintiffs; (iv) An order for permanent injunction restraining the Defendants, it's partners or proprietor as the case may be, it's principal officers, servants and agents and all others acting for and on it's behalf from passing off the Defendant's website as and for that of the Plaintiffs, by including the Plaintiffs trademark SHOLAY or any other receptively similar trademark thereto as a metatag in the source code of the Defendant's website, and thereby passing off such website as and for that of (v) An order for permanent injunction restraining the Defendants, their directors, partners or proprietor as the case may be, their principal officers, servants and agents from operating any business, making, selling, offering for sale, or in any manner dealing in any goods or services, under the name SHOLAY or any other name which is identical with or deceptively similar to the Plaintiff’s trademark SHOLAY as an essential or dominant feature thereof, on the Internet or otherwise and from doing any other thing as is likely to dilute the Plaintiffs trademark SHOLAY or to lead of tarnishment of the asset, which is the movie title corporate name and trademark SHOLAY. (vi) An order for transfer of all domain names incorporating the name SHOLAY or any deceptively CS(COMM) 8/2016 Page 11 of 30 similar variation thereof including sholay.com, sholay.net, e-sholay.com, sholaychat.com, sholayindia.com, sholaymall.com, sholaynews.com, sholayonline.com. sholayradio.com, sholaytv.com, Mysholay.com, Asksholay.com, sholay.fm and sholay.co.in to the Plaintiff and for delivery-up of all impugned materials, including but not limited to brochures, stationery and other printed matter, for purposes of destruction and/or erasure; (vii) An order for rendition of accounts of profit illegally earned by the Defendants on account of the infringing activities and a decree for the amount ascertained be passed in favour of the Plaintiff; (viii) An order of damages of 10 lakhs which the Plaintiff has suffered by way of the Defendants' infringing activities, such activities having seriously eroded, diluted and reduced the value of the Plaintiff’s trademark SHOLAY and caused the Plaintiff loss of business, reputation and untold hardship. (ix) An order for costs in these proceedings; and” 16. Vide order dated 21st August, 2001 in the present suit, an ex parte ad interim injunction was granted in the following terms: It is an application for exemption. Allowed, subject to all just exceptions. Suit No. 1714 /2001 & IA 7665/2001(Be numbered). Plaint be registered as suit. Summons in the suit and notice of the application be issued to the defendants by ordinary process as well as by Regd. AD cover, returnable on It has been contended by Mr. V.P. Singh, learned counsel for the plaintiff that the plaintiff has been using the word Sholay in relation to CS(COMM) 8/2016 Page 12 of 30 cinematography films, vinyl records, audio tapes and DVDs etc and has also made application for registration of trade mark ‘Sholay’ in relation to various goods, details of which have been given at page 9 of the application. The Plaintiff has also in order to expand its presence and operation on the internet registered itself in the names of SHOLAYENT.COM and SHOLAYTWO.COM’ It has been contended by Mr. V.P. Singh, learned counsel for the plaintiff that defendants 1 and 2 are directors of defendant no.4. Defendant no.5 is a sister concern of defendant no.4. Defendant no.3 who is wife of defendant no.2 and she is one of the directors of defendant no.5. Defendant no.6-Sholay.com Inc and defendant no.7 -Sybanet communications Inc. and defendant no.8- Sholay DOT Co. Incorporation are using the word ‘Sholay’ to enchash the reputation and good will of the plaintiff's trade name ‘Sholay’ which has acquired tremendous clout, good will and reputation and word SHOLAY has assumed secondary meaning. It was also contended by Mr. V. P. Singh, learned counsel for the plaintiff that from the perusal of the documents placed on record at page 240, 241 and 318, it will be borne out that the defendants are using the internationally known film Sholay's name produced by plaintiff no.2 which has now been gifted to plaintiff no.1 in advertising ‘Sholay.com’. At page 242 of the documents, the Defendants have been used on the letter head of their website Sholay.com to the following effect:- “The biggest Bollywood blockbuster has hit the Net too. Sholay.com is a comprehensive site that offers you much more than its Bollywood alias did.” From the perusal of the documents, pleadings and after hearing arguments of learned counsel for the plaintiff/ applicant, a prima facie case is made out by the applicant for grant of an ex parte injunction CS(COMM) 8/2016 Page 13 of 30 limited to the extent that defendants are restrained from using film Sholay its characters, songs, sequences, clippings in the manner whatsoever so as to promote its website Sholay.com till the next the next date of hearing. They are further restrained from using the word Sholay in relation to any film which they want to their website Sholay.com. Plaintiff to comply with the provisions of Rule 3 of Order 39 C.P.C. within one week.” 17. Thereafter, the Defendants entered appearance and filed an application challenging the territorial jurisdiction of this Court. During pendency of the present suit, some of the trademark applications of the Plaintiffs in relation to the mark ‘SHOLAY’, which were also pleaded in the Plaint, were granted registration. The Plaintiff sought amendment of the Plaint to add the said registrations which was allowed on 28th August, 2006. 18. Vide judgment dated 27th January, 2010, the application under Order 7 Rule 11 CPC was allowed and the Plaint was returned. The Plaintiffs filed an appeal against the said order - FAO (OS) No.222 of 2010 titled Sholay Media and Entertainment Pvt. Ltd. & Anr. v. Mr. Yogesh Patel & Ors. By order dated 13th March, 2014, the judgment dated 27th January, 2010 was set aside and CS (OS) No. 1714/2001 was restored along with the interim injunction. The operative portion of the said order is set out below: “3. The impugned order is patently erroneous and overlooks that the respondents have distributed CDs along with the December issue of IT Magazine which was extensively circulated in Delhi in which respondent's website SHOLAY.COM was advertised. The learned Single Judge has overlooked that when the CD was loaded it displayed the website www.sholav.com with prominence such that any user would click the same on the link to be transported to CS(COMM) 8/2016 Page 14 of 30 respondent's website and in turn could then avail of various services such as e-greetings/e-chat and goods such as DVDs sold by the respondent. The learned Single Judge has overlooked that the respondent's website is a virtual store with the ‘essential interactive features’ that permits a visitor to order goods or services and communicate with the respondents via e- mail. Cumulatively read there are sufficient pleadings to show the respondents promoting their business actively in Delhi. 6. The appeal is allowed. Impugned order dated April 27, 2010 is set aside. CS (OS) No.1714/2001 is restored. Pending applications which were dismissed as a result of the plaint being returned are revived and so are the interim injunctions which were operating.” 19. In the written statement, the Defendants took the stand that they are in the business of computer products. It is urged that the intention of the Plaintiffs is to extract money from the Defendants who have created a popular website called www.sholay.com, registered by the Defendants in the USA. The case of the Defendant was that the suit did not disclose a cause of action. The Defendants urged that a movie title is not entitled to any rights and, hence, there can be no passing off. The Plaintiffs, however, rely on Krishika Lulla v. Shyam Vithalrao Devkatta and Ors. [(2016) 2 SCC 521], to rebut that contention. 20. It was further urged that the order dated 20th December, 2000 passed by the Registrar of Companies and extracted hereinabove, was stayed by the Madras High Court, vide order dated 13th March, 2001. In fact, the Plaintiff's plea that there was no stay of the said order was false. The Defendants also claimed that the website did not have any resemblance to the movie CS(COMM) 8/2016 Page 15 of 30 ‘SHOLAY’ and the word ‘SHOLAY’ has a common dictionary meaning. In addition, third-party use of the mark ‘SHOLAY’ was also cited. The Defendants also challenged the reputation of the Plaintiffs. 21. In the year 2016, the present suit was amended again due to further registrations granted in favour of the Plaintiffs in relation to the mark ‘SHOLAY’. The various trademark registrations presently valid and subsisting are set out below: 2. SHOLAY 928619 9 Video films, tapes, cassettes etc. 3. SHOLAY 966272 14 Clocks, wristwatches, costume, Jewellery 4. SHOLAY 928687 16 Albums, Articles of paper etc. 5. SHOLAY 966273 18 All kinds of leather and imitations of 6. SHOLAY 967054 21 Cleaning material like backets etc., 7. SHOLAY 966274 25 T-shirts, jeans, caps 8. SHOLAY 966275 28 Stuffed toy figures and toy animals etc. 9. SHOLAY 966276 29 Meat, fish, poultry and game etc. 10. SHOLAY 966277 30 Coffee, tea, cocoa, sugar rice etc. 13. SHOLAY 966271 9 Video films, tapes, cassettes, etc. 14. SHOLAY 928686 9 Video films, tapes, cassettes, etc. 22. Mediation was explored to resolve the disputes. However, the same had failed. There has been no appearance on behalf of the Defendants 20th March, 2019 onwards. The interim order already granted on 21st August, 2001 was confirmed on 14th March 2022 by this Court. Even today, none appears for the Defendants. 23. Mr. Anand, ld. Counsel appearing for the Plaintiffs submits that he has filed his written submissions and has urged that the Defendants were misusing the mark ‘SHOLAY’. He further argued that the Defendants’ adoption of the mark was not bona fide or innocent. The Defendants did not adopt the mark ‘SHOLAY’ only as a part of the domain name being www.sholay.com, but also in the following manner: i. by registering a series of domain names; ii. by using the word ‘SHOLAY’ as part of the corporate name; iii. by applying for the registrations of the mark ‘SHOLAY’ in India as also in the USA; iv. by using an identical logo of ‘SHOLAY’; v. by offering the DVD of the Plaintiff’s film ‘SHOLAY’ on their vi. by using the name ‘SHOLAY’ as a meta tag. 24. The Plaintiffs revealed the intention of the Defendants to foreclose the CS(COMM) 8/2016 Page 17 of 30 natural expansion of the Plaintiffs in the virtual space. The various defences raised by the Defendants in the written statement have also been addressed by the Plaintiffs in their written submissions. 25. The Defendants have already been proceeded ex parte in this matter. The rights in the mark ‘SHOLAY’ vesting in the Plaintiff’s has already been judicially recognised in the decision dated 24th August, 2015 in CS(OS) 1892/2006 titled Sholay Media and Entertainment Pvt. Ltd. and Anr. v. Parag Sanghavi and Ors. 26. Thus, the question that arises is whether any ex parte evidence would be required in this case. On behalf of the Plaintiffs, the following two aspects have been urged: i. That the rights in the mark ‘SHOLAY’ vest in the Plaintiffs, ii. That the Defendants conduct constitutes infringement and violation of statutory and common law rights in the mark 27. Insofar as the first aspect of the rights of the Plaintiffs, is concerned, the same has already been recognised in the earlier judicial decision dated 24th August, 2015 in CS(OS) 1892/2006 titled Sholay Media and Entertainment Pvt. Ltd. and Anr. v. Parag Sanghavi and Ors. The findings in the said decision are set out below: “3. The plaintiffs are the copyright owners and administer all intellectual property in respect of 32 cinematograph films, including the iconic and eternal hit film "SHOLAY". The other hits in the Sippy repertoire of films include films such as ‘Johar Mehmood in Goa', Bhramachari', Bandhan', Andaz', CS(COMM) 8/2016 Page 18 of 30 Phool', Sheshensha Hameshaa' etc. 4. The history of the plaintiffs companies and devolution of rights in the film is summarized herein a) 26th November, 1954: Plaintiff No.2 was incorporated under the leadership of the late Mr. G.P. Sippy to produce and handle distribution of cinematograph films. Certificate of Incorporation and Memorandum and Articles of Association of plaintiff No.2 has been exhibited as Ex PW 1/3 and Ex PW 1/4. b) 3rd August, 1965: M/s Sippy Films, a partnership firm, was formed. Films belonging to the Sippy repertoire were produced through this firm. Table summarizing the dates of appointment and retirement of various members of the Sippy family who became partners in the firm and Directors of plaintiff No.2 has been marked as Mark A. • Mr. Ajit Sippy (defendant No.7), through whom defendant Nos.3, 5 and 6 claimed to have acquired certain rights, was admitted as a partner of M/s Sippy Films on 1st January, 1976 and retired on 15th September, 1976. The retirement deed by virtue of which defendant No.7 relinquished all rights in the Sippy repertoire has been exhibited as Ex PW1/5. c) 10th September, 1997: Plaintiff No.2 was admitted as a partner in the partnership firm. The deed of partnership has been marked as Mark N. d) 11th September, 1997: M/s Sippy films, the erstwhile partnership firm has only two partners remaining i.e. Mr. Vijay Sippy and plaintiff No.2. The deed of partnership has been marked as Mark O. e) 17th April, 1998: Dissolution of the partnership firm on the death of Mr. Vijay Sippy. Extract from the Register of Partnerships certifying the dissolution of CS(COMM) 8/2016 Page 19 of 30 M/s Sippy Films has been exhibited Ex PW1/9. After dissolution of the partnership firm, plaintiff No.2 through Mr. Sascha Sippy, the sole heir of Mr. Vijay Sippy and one of the Directors of plaintiff No.2, continued to exercise all rights in the Sippy repertoire and the name Sippy Films' came to denote a proprietary concern of plaintiff No.2. The last will of Mr. Vijay Sippy in favour of his son Mr. Sascha Sippy has been marked Mark C. f) 11th September, 2000: Plaintiff No.1 was incorporated in order to capitalize on the brand value and merchandising potential inherent in the iconic hit film ‘Sholay'. Copies of the certificate of Incorporation, Articles and Memorandum of Association of plaintiff No.1 has been exhibited as Ex PW 1/11and Ex PW 1/12. The gift deed dated 14th September, 2000 whereby plaintiff No.2 transferred all the right, title and interest in the film Sholay to plaintiff No.1 has been exhibited as Ex PW1/13. 16. As a consequence of gift deed dated 14th September, 2000, the copyright in the cinematographic film SHOLAY stood transferred to plaintiff No.1. Thus, plaintiff No.1 is the owner of the copyright as well as all common law rights in the cinematographic film SHOLAY and the constituent parts of the cinematographic film SHOLAY. By virtue of being the owner of copyright in the cinematographic film SHOLAY as well as those of its constituent parts i.e. the screenplay, script, sound recordings (i.e., songs and recording of the back ground music), musical works, lyrics, artwork etc. the plaintiffs are thus according certain exclusive rights under Section 14 of the Copyright Act, 1957. These exclusive rights accord plaintiff No.1 the exclusive right to exploit the cinematographic film SHOLAY under Section 14(d) of the Copyright Act, 1957.” 28. In view of the above conclusions, the aspect of rights vested in the Plaintiffs stands adjudicated and there appears to be no challenge to the same. Ld. Counsel for the Plaintiff has submitted that the said judgement is not under challenge. 29. Thus, only the second issue remains to be considered, as to whether the future use of the word/mark/name ‘SHOLAY’ is liable to be injuncted. The Defendants do not dispute the following facts: i. That the Defendants have registered various domain names with the mark ‘SHOLAY’. ii. That the Defendants have applied for registrations of the marks in India and in the USA. iii. That the Defendants are using the word ‘SHOLAY’ as a prominent part of their corporate name. 30. The Defendants only seek to justify their use of the Plaintiffs’ mark ‘SHOLAY’ by urging that: i. Film titles are not entitled to protection and that they have applied for registration earlier. ii. There is no probability of confusion on the internet and that ‘SHOLAY’ is a dictionary word. 31. In respect of the above contentions of the Defendants, following the rationale of the judgment of the ld. Single Judge of this Court in Disney Enterprises Inc. & Anr. v. Balraj Muttneja &Ors. [CS (OS) 3466/2012 decided on 20th February, 2014], this Court is of the opinion that no evidence needs to be adduced inasmuch as the facts are not seriously in dispute in this case. The same has been reiterated by the Court in S. Oliver Bernd Freier GMBH & CO. KG v. Jaikara Apparels and Ors. [210 (2014) CS(COMM) 8/2016 Page 21 of 30 DLT 381], as also, in United Coffee House v. Raghav Kalra and Ors. [2013 (55) PTC 414 (Del)]. The relevant observations from the judgment in Disney Enterprises Inc. (supra), are as under: “3. Though the defendants entered appearance through their counsel on 01.02.2013 but remained unrepresented thereafter and failed to file a written statement as well. The defendants were thus directed to be proceeded ex-parte vide order dated 04.10.2013and the plaintiffs permitted to file affidavits by way of exparte evidence. 4. The plaintiffs, despite having been granted sufficient time and several opportunities, have failed to get their affidavits for leading ex-parte evidence on record. However, it is not deemed expedient to further await the same and allow this matter to languish, for the reason that I have in Indian Performing Rights MANU/DE/0582/2013 held that where the defendant is ex parte and the material before the Court is sufficient to allow the claim of the plaintiff, the time of the Court should not be wasted in directing ex parte evidence to be recorded and which mostly is nothing buta repetition of the contents of the plaint.” 32. Since the Defendants have not entered appearance and led evidence in support of the contentions raised, the defences raised by the Defendants in their pleadings are considered hereinbelow: i. Contention: That the Defendants applied for the mark ‘SHOLAY’ on 16th April, 1999 in India and 11th February, 1999 in the USA, prior to the Plaintiffs. The Defendants also incorporated the Defendant No.4- Company with the name ‘SHOLAY’ as early as on 21st December, 1999. Admittedly, the Plaintiffs applied for registrations in the USA in the year 2000 and in India, the earliest application dates back to CS(COMM) 8/2016 Page 22 of 30 Finding: The Defendants claim that their application is prior to the application and registration of the mark by the Plaintiffs. This claim is bereft of any force, inasmuch as the film ‘SHOLAY’ of the Plaintiffs was released in the year 1975, much before the application for registration and the incorporation of the Company by the Defendants. The manner of use of the word ‘SHOLAY’ by the Defendants, is not descriptive, but is a clear indication of an association with the Plaintiffs’ film. The offering of the CD and the DVD of the film ‘SHOLAY’ on the website of the Defendants shows that the Defendants’ adoption is, in fact, mala fide and dishonest. Moreover, the Defendants have registered a series of domain names identical and deceptively similar to the name of the film ‘SHOLAY’, which cannot be justified in any manner, especially when the Defendants own and could have used any of their other registered domain names, such as ‘zerozone.com’. Their use of identical domain names is nothing but an attempt to encash the goodwill enjoyed by the blockbuster movie ‘SHOLAY’ of the Plaintiffs. The Plaintiffs clearly have a cause of action under Section 27 of the Trademarks Act, 1999 to sue for passing off. The mark ‘Sholay’ enjoys continued goodwill in India. As and when more and more media have evolved for the communication of a film, the rights in ‘SHOLAY’ have been licensed/assigned by the Plaintiffs. The mark ‘SHOLAY’ has already been recognised as a well-known mark. Thus, the mere earlier trademark applications or use as part of a corporate name would not vest any prior rights in favour of the Defendants. CS(COMM) 8/2016 Page 23 of 30 ii. Contention: The goods and services offered by the Plaintiffs and Defendants are different, unrelated and not overlapping. Finding: The Plaintiffs have a large number of registrations as set out hereinabove. The activities of the Defendants would be covered by most of these registrations. The content in a movie is no longer merely restricted to theatrical screening, but also to online platforms and other electronic platforms. Thus, the internet has itself created an additional market for ‘SHOLAY’, which is a film nearly 50 years old. The adoption by the Defendants is with complete knowledge of the Plaintiffs’ film, especially considering that the Defendants’ companies are being run by Indians, who are more than likely to be aware of the film ‘SHOLAY’. The goods and services being offered can be considered as being off shoots emanating from the Plaintiffs. iii. Contention: Titles of films cannot be Trademarks. Finding: The word ‘SHOLAY’, is the title of an iconic film, and consequently, as a mark having been associated with the film, produced and now vesting in the Plaintiffs, cannot be held to be devoid of protection. Certain films cross the boundaries of just being ordinary words and the title of the film ‘SHOLAY’ is one of them. Titles and films are capable of being recognised under trademark law and in India ‘SHOLAY’ would be a classic example of such a case. On this issue, the Supreme Court in Krishika Lulla & Ors. V. Shyam Vithalrao Devkatta & Anr. [(2016) 2 SCC 521] has held as under: “19. We are thus, of the view that no copyright subsists in the title of a literary work and a plaintiff or a complainant is not entitled to relief on such basis except in an action for passing off or in respect of a CS(COMM) 8/2016 Page 24 of 30 registered trade mark comprising such titles. This does not mean that in no case can a title be a proper subject of protection against being copied as held in Dicks v. Yates where Jessel M.R. said “there might be copyright in a title as for instance a whole page of title or something of that kind requiring invention” or as observed by Copinger (supra).” Similar is the view taken by the ld. Single Judge of this Court in Kanungo Media (P) Ltd. v. RGV Film Factory & Ors. [2007 SCC OnLine Del 314], wherein it was observed as under: “18. Whether titles of single literary works can be registered as trade mark or not has itself become debatable in the US, though in the case of titles of series of literary work, judicial opinion is that they are registrable. However, it is not necessary to go into this debate inasmuch as the plaintiff's title ‘Nisshabd’ for its film is not registered as trademark. The case at hand is, therefore, while applying the legal protection given to such titles under the Trade Marks Act is to be considered on the principle applicable in the cases of passing off of such trademarks. In passing off, necessary ingredient to be established is the likelihood of confusion and for establishing this ingredient it becomes necessary to prove that the title has acquired secondary meaning. Thus, in case of unregistered title following ingredients are to be proved in order to triumph in an injunction suit:— (i) Title has acquired the secondary meaning; (ii) There is likelihood of confusion of source, affiliation, sponsorship or connection of potential buyers/audience/viewers.” iv. Contention: The Defendants contend that ‘Sholay.com’ is a website on the internet which is used by educated persons, which would consequently lead to lesser likelihood of confusion. CS(COMM) 8/2016 Page 25 of 30 Finding: Insofar as internet usage is concerned, the said platform is now being accessed by billions of users across the world who may range from very educated to even illiterate people. In this day and age, the internet as a medium has become a platform for dissemination, communication and empowerment to the common man. Thus, in the opinion of this Court, the contention that the internet is only being used by educated persons is unacceptable. It would be easy for any person, not just educated individuals, to establish a connection between the Plaintiffs’ film and the Defendants’ website. The use of identical logos, marks and names originating from the movie ‘SHOLAY’ further confound the issue. Moreover, the chances of confusion which have been narrated in the Plaint and extracted hereinabove, leave no doubt in the mind of the Court that there is every likelihood of confusion. v. Contention: The subject matter of the present suit is substantially similar to that in the proceedings in the writ petition filed before Finding: The writ petition being W.P. (C) No. 4823 of 2001, filed before the Madras High Court which emanated under Section 22 of the Companies Act was of limited scope. The said writ petition now stands disposed of. The present suit is a broad suit seeking prayers qua infringement, passing off, dilution, etc. The use of the mark ‘SHOLAY’ as part of domain names and company names, etc. are completely illegal and unlawful in these facts. The acclaimed status of the film ‘SHOLAY’ in India has also been recognised by the Bombay High Court while dealing with a case relating to another movie titled CS(COMM) 8/2016 Page 26 of 30 ‘Veere Di Wedding’. In the said judgement in Anil Kapoor Film Co. Pvt. Ltd. v. Make My Day Entertainment & Anr [2017 SCC OnLine Bom 8119], Justice G.S. Patel has observed the following in relation “20. Finally, there is the title itself. It is a common place phrase in one or more of our many vernacular tongues. It means “my best friend’s wedding”. There are, I imagine, titles of some books and movies (and songs or melodies) that by themselves are sufficiently unique: Gravity’s Rainbow, perhaps, or The Catcher in the Rye, To Kill A Mockingbird, and so on. In cinema, too, this may be so: Citizen Kane, Blade Runner, many of the Bond movies (Goldfinger, Thunderball, The Quantum of Solace), Aguirre the Wrath of God, Fitzcarraldo, etc. But the fact that the title is unique is not in itself sufficient to establish reputation, nor is the fact that there has been a previous book or a film with the same name. There is absolutely no shortage of films that have exactly the same title but are very different otherwise and share nothing else in common. These instances put us squarely within the frame of the ration in KM Multani: in that case, too, there were two competing films with the same name but nothing else. There exist many films with exactly the same title but different contents. It is not shown, or even urged, that for these films an action in passing off succeeded, was ever filed, or even could have been filed merely because the two titles were the same. George Tillman Jr’s 2009 Notorious is about as far as it is possible to be from Alfred Hitchcock’s 1946 work of the same name; and this is true too of several others. There is not a suggestion in the plaint that, apart from the title, there is any commonality between the Plaintiff’s forthcoming film and that of the 1st Defendant. When therefore the Plaintiff argues that an action in passing off lies in respect of a title of a film, CS(COMM) 8/2016 Page 27 of 30 though not in copyright infringement, this is inaccurate. A work may gain reputation on publication or release. In showing reputation, a plaintiff must show that his work with that name is associated in the public mind only with that film or book, one that exists. When the title is unusual or unique, it might make the task of a plaintiff somewhat easier, but I think it is difficult to conceive of a reputation attaching to a non-existent thing — a film not made or a book not written — no matter how unique the title. Where the title is more commonplace, the burden of establishing a reputation might lie heavier; but that burden is never discharged by saying only, as the present Plaintiff does, that it has plans to make a movie with a particular title and others have spoken of it. Films with names Gaslight, Birth of a Nation, Casablanca, Bicycle Thieves, or hundreds of others; and, closer home, of films with commonplace titles like Zanjeer, Deewar, Anand, Pyaasa or Sholay — the list is endless — are all instances of film that, with possibly ordinary titles, acquired a reputation in those titles upon their release. The ‘reputation’ of these films has, over time, been so established that the titles uniquely connote these films and no other. I do not think that is even remotely true of the Plaintiff’s yet-to-be-made film. Thus, when a plaintiff claims passing off in a title simpliciter, independently of any content similarity, he reaches well beyond the considerations of KM Multani (where, incidentally, there was, in relation to reputation, an overview of the content). It is, I think, prima facie exceedingly difficult to conceive of reputation attaching to a title alone, of a thing not in existence, divorced entirely from content. This burden is not, prima facie, sufficiently discharged to warrant an ad- interim injunction.” 33. The highlighted portion of the paragraph above judicially acknowledges the reputation in the film title ‘SHOLAY’, which is now CS(COMM) 8/2016 Page 28 of 30 34. Under the facts and circumstances of the present case, the following directions are issued: i. The present suit is decreed in terms of the reliefs sought in paragraph 60(i) to (vi) as also 60(viii) and (ix) of the Plaint. Accordingly, the Defendants, their directors, partners, proprietor and anyone acting for and on their behalf are restrained from using the name ‘SHOLAY’ in respect of any goods and services and also from using the domain name ‘Sholay.com’ and making any reference to the movie ‘SHOLAY’ or using any images or clippings from the said movie, as also from selling merchandise using the name SHOLAY or any images from the said cinematographic film. The Defendants shall also stand restrained from using any variation of the mark/name ‘SHOLAY’ on the internet or otherwise including use as a metatag in the source code. ii. In terms of the relief as sought in paragraph 60(vi), the concerned domain names registrars are directed to transfer the infringing domain names to the Plaintiffs, within one week of the receipt of the present order and the details of the Plaintiffs. iii. The statement of costs has been filed by the Plaintiffs. The same is taken on record. Though, the cost statement has been filed showing expenses to the tune of Rs.6,58,036.00/- on various accounts including court fee, miscellaneous expenses and legal fee. It is also submitted by ld. Counsel for Plaintiffs that a substantial quantum of services were rendered even on pro bono basis. Considering the observations of the Supreme Court on the issue of costs to be awarded CS(COMM) 8/2016 Page 29 of 30 in commercial matters in Uflex Ltd. v. Government of Tamil Nadu & Ors. [Civil Appeal Nos.4862-4863 of 2021, decided on 17th September, 2021], actual costs ought to be awarded, keeping in mind the bill of costs, including counsel fees. In the present case, the Defendants have contested this matter for over 20 years. The adoption of the mark ‘SHOLAY’ by the Defendants was clearly mala fide and dishonest, owing to the use of the infringing logo, designs, selling of the DVD of the film ‘SHOLAY’ on the Defendants’ website, etc. For the reasons contained above, this Court is convinced that this is a fit case for award of costs to the Plaintiffs. Accordingly, the present suit is decreed for a sum of Rs.25,00,000/- as costs and damages, in terms of the relief as sought in paragraph 60(ix) of the Plaint. 35. The Defendant shall pay the said amount within three months, failing which, the Plaintiff is permitted to avail of its remedies in accordance with law for execution of the decree. 36. All pending applications are also disposed of. Decree sheet be drawn (corrected & released on 23rd May, 2022) CS(COMM) 8/2016 Page 30 of 30
The Delhi High Court recently disagreed with the argument that movie titles cannot be protected as brand names. It decided that 'SHOLAY,' as the title of a very famous movie, deserves legal protection. Justice Pratibha M Singh also said that some movies become more than just common words, and 'SHOLAY' is one such movie title. The Court stated that movie titles can be recognized and protected by trademark law, and 'SHOLAY' is a perfect example of this in India. It added that if there is one movie that connects with all age groups in India, it is 'SHOLAY.' The movie, its characters, lines, locations, and earnings are all legendary. Without a doubt, 'SHOLAY' is one of the biggest, record-breaking films ever made in Indian cinema. Just hearing the word 'SHOLAY' immediately makes people think of the movie. Film experts suggest that even though 'SHOLAY' may mean 'burning coal' in Hindi, most moviegoers now only link the word to the film. Therefore, the Court ordered a payment of Rs. 25,00,000/- for expenses and harm to Sholay Media and Entertainment Pvt Ltd. and Sippy Films Pvt. Ltd., the companies that own the rights to the movie. The Court ruled against the Defendants (the people who were sued). They had registered the website address 'www.sholay.com,' published a magazine using the name 'Sholay,' and sold various products with scenes and names from the movie 'SHOLAY.' The Court pointed out that the legal rights to the word 'SHOLAY,' which is also a registered brand name, had already been confirmed by earlier court decisions, favoring the companies that sued. It mentioned that in a ruling from August 24, 2015, in a case called Sholay Media and Entertainment Pvt. Ltd. and another versus Parag Sanghavi and others, the Court had upheld the Plaintiffs' rights to the 'SHOLAY' brand name. The Plaintiffs' complaint was that they found out about the Defendants' actions when they saw a magazine called "IT-Information Technology" in December 2000. They discovered that the Defendants had registered the website 'www.sholay.com.' The Plaintiffs also learned that the Defendants had tried to register 'SHOLAY' as a brand name in both the United States and India back in February 1999. According to the Plaintiffs, the Defendants' use of the name was illegal. They said it was *infringement* (copying their protected brand name), *passing off* (making people think their products were linked to the movie), and *dilution* (making the famous 'SHOLAY' brand less special or hurting its reputation). So, the Plaintiffs filed a lawsuit asking for a *permanent injunction* (a lasting court order) to stop the Defendants from violating their registered 'SHOLAY' trademark, from deceiving people, and also asked for money for the harm caused, among other legal actions. The Court stated that the brand name 'SHOLAY' is already known as a very famous brand. Therefore, the Defendants' earlier attempts to register the trademark or their use of 'Sholay' in a company name did not give them any superior legal rights. Furthermore, it noted that billions of people worldwide, from highly educated to those who cannot read, use the internet today. It said that the internet has become a way to share information, communicate, and give power to ordinary people. Thus, in the opinion of this Court, the argument that only educated people use the internet was wrong. It said that any person, not just educated individuals, could easily see a connection between the Plaintiffs' movie and the Defendants' website. The use of the same logos, trademarks, and names from the movie 'SHOLAY' made the problem even clearer. Also, the chances of confusion, as explained in the lawsuit and mentioned earlier, left no doubt in the Court's mind that people would very likely be confused. Therefore, the Court ordered the Defendants to stop using the name 'SHOLAY' for any products or services. They were also forbidden from using the website address 'Sholay.com,' mentioning the movie 'SHOLAY' in any way, or using any pictures or video clips from the movie. This also included selling products with the name 'SHOLAY' or images from the film. The Court further stated that the Defendants must also stop using any similar version of the 'SHOLAY' name or brand online or anywhere else, including using it as a hidden tag in website code. Further noting that the Defendants had fought this case for over 20 years, the Court believed that the Defendants' decision to use the 'SHOLAY' brand name was clearly done with bad intentions and was dishonest. This was evident from their use of a logo and designs that violated rights, and by selling the 'SHOLAY' movie DVD on their website. Because of all the reasons mentioned, this Court was sure that this was a suitable case to order payment for the Plaintiffs' legal costs. Accordingly, the Court ordered the Defendants to pay Rs. 25,00,000/- for expenses and damages, just as the Plaintiffs had requested in their initial lawsuit.
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This judgment has been divided into the following sections to facilitate analysis: D.1 Ineligibility during the resolution process and liquidation D.2 Interplay : IBC liquidation and Section 230 of the Act of 2013 D.4 Constitutional Validity of Regulation 2B - Liquidation Process 1 By its judgment dated 24 October 2019, the National Company Law Appellate Tribunal2 held that a person who is ineligible under Section 29A of the Insolvency Bankruptcy Code, 20163 to submit a resolution plan, is also barred from proposing a scheme of compromise and arrangement under Section 230 of the Companies Act, 20134. The judgment was rendered in an appeal5 filed by Jindal Steel and Power Limited6, an unsecured creditor of the corporate debtor, Gujarat NRE Coke Limited7. The appeal was preferred against an order passed by the National Company Law Tribunal8 in an application9 under Sections 230 to 232 of the Act of 2013, preferred by Mr Arun Kumar Jagatramka, who is a promoter of GNCL. The NCLT had allowed the application and issued directions for convening a meeting of the shareholders and creditors. In its decision dated 24 October 2019, the NCLAT reversed this decision and allowed the appeal by JSPL. The decision of the NCLAT dated 24 October 2019 is challenged in the appeal before this Court. 2 Mr Arun Kumar Jagatramka, assails the order dated 24 October 2019 of the NCLAT, inter alia, on the ground that Section 230 of the Act of 2013 does not place any embargo on any person for the purpose of submitting a scheme. the “Act of 2013” According to the appellant, in the absence of a disqualification, the NCLAT could not have read the ineligibility under Section 29A of the IBC into Section 230 of the Act of 2013. This would, in the submission, amount to a judicial reframing of legislation by the NCLAT, which is impermissible. 3 Before we advert to the submissions of the counsels on questions of law, it will be useful to outline the salient facts of this dispute to understand the contours of the controversy. GNCL, the corporate debtor, moved an application under Section 10 of the IBC before the NCLT for initiating the Corporate Insolvency Resolution Process10. The application was admitted on 7 April 2017. 4 Mr Arun Kumar Jagatramka submitted a resolution plan for GNCL on 1 November 2017, which was presented by the Resolution Professional11 before the Committee of Creditors12. The plan was to be put to a vote in a meeting of the CoC scheduled on 23-24 November 2017. 5 The IBC was amended by the Insolvency and Bankruptcy Code (Amendment) Act, 2018. Section 29A which was inserted with retrospective effect from 23 November 2017 provides a list of persons who are ineligible to be resolution applicants. Sub-section (g) of Section 29A disqualifies a person from being a resolution applicant if they have been a promoter or in the management or control of a corporate debtor in which a preferential transaction, undervalued transaction, extortionate credit transaction or fraudulent transaction has taken place and in respect of which an order has been made by the NCLT under the “CIRP” or “resolution process” IBC. A second amendment was made to various provisions of IBC, including Section 29A, under the Insolvency and Bankruptcy Code (Second Amendment) Act, 2018, effective from 6 June 2018. A proviso was added to sub-Section (g) of Section 29A. Section 29A of the IBC in its present form reads as follows: “29A. Persons not eligible to be resolution applicant: A person shall not be eligible to submit a resolution plan, if such person, or any other person acting jointly or in concert (b) is a wilful defaulter in accordance with the guidelines of the Reserve Bank of India issued under the Banking (c) at the time of submission of the resolution plan has an account, or an account of a corporate debtor under the management or control of such person or of whom such person is a promoter, classified as non-performing asset in accordance with the guidelines of the Reserve Bank of India issued under the Banking Regulation Act, 1949 (10 of 1949) or the guidelines of a financial sector regulator issued under any other law for the time being in force, and at least a period of one year has lapsed from the date of such classification till the date of commencement of the corporate insolvency resolution process of the corporate debtor: Provided that the person shall be eligible to submit a resolution plan if such person makes payment of all overdue amounts with interest thereon and charges relating to non- performing asset accounts before submission of resolution Provided further that nothing in this clause shall apply to a resolution applicant where such applicant is a financial entity and is not a related party to the corporate debtor. Explanation I.-- For the purposes of this proviso, the expression "related party" shall not include a financial entity, regulated by a financial sector regulator, if it is a financial creditor of the corporate debtor and is a related party of the corporate debtor solely on account of conversion or substitution of debt into equity shares or instruments convertible into equity shares or completion of such transactions as may be prescribed, prior to the insolvency commencement date. Explanation II.-- For the purposes of this clause, where a resolution applicant has an account, or an account of a corporate debtor under the management or control of such person or of whom such person is a promoter, classified as non-performing asset and such account was acquired pursuant to a prior resolution plan approved under this Code, then, the provisions of this clause shall not apply to such resolution applicant for a period of three years from the date of approval of such resolution plan by the Adjudicating (d) has been convicted for any offence punishable with (i) for two years or more under any Act specified under the (ii) for seven years or more under any other law for the time Provided that this clause shall not apply to a person after the expiry of a period of two years from the date of his release Provided further that this clause shall not apply in relation to a connected person referred to in clause (iii) of Explanation I; (e) is disqualified to act as a director under the Companies Provided that this clause shall not apply in relation to a connected person referred to in clause (iii) of Explanation I; (f) is prohibited by the Securities and Exchange Board of India from trading in securities or accessing the securities (g) has been a promoter or in the management or control of a corporate debtor in which a preferential transaction, undervalued transaction, extortionate credit transaction or fraudulent transaction has taken place and in respect of which an order has been made by the Adjudicating Provided that this clause shall not apply if a preferential transaction, undervalued transaction, extortionate credit transaction or fraudulent transaction has taken place prior to the acquisition of the corporate debtor by the resolution applicant pursuant to a resolution plan approved under this Code or pursuant to a scheme or plan approved by a financial sector regulator or a court, and such resolution applicant has not otherwise contributed to the preferential transaction, undervalued transaction, extortionate credit transaction or (h) has executed a guarantee in favour of a creditor in respect of a corporate debtor against which an application for insolvency resolution made by such creditor has been admitted under this Code and such guarantee has been invoked by the creditor and remains (i) is subject to any disability, corresponding to clauses (a) to (h), under any law in a jurisdiction outside India; or (j) has a connected person not eligible under clauses (a) to Explanation I -- For the purposes of this clause, the (i) any person who is the promoter or in the management or (ii) any person who shall be the promoter or in management or control of the business of the corporate debtor during the (iii) the holding company, subsidiary company, associate company or related party of a person referred to in clauses (i) Provided that nothing in clause (iii) of Explanation I shall apply to a resolution applicant where such applicant is a financial entity and is not a related party of the corporate Provided further that the expression "related party" shall not include a financial entity, regulated by a financial sector regulator, if it is a financial creditor of the corporate debtor and is a related party of the corporate debtor solely on account of conversion or substitution of debt into equity shares or instruments convertible into equity shares 9[or completion of such transactions as may be prescribed], prior Explanation II.-- For the purposes of this section, "financial entity" shall mean the following entities which meet such criteria or conditions as the Central Government may, in consultation with the financial sector regulator, notify in this (b) any entity regulated by a foreign central bank or a securities market regulator or other financial sector regulator of a jurisdiction outside India which jurisdiction is compliant with the Financial Action Task Force Standards and is a signatory to the International Organisation of Securities Commissions Multilateral Memorandum of Understanding; (c) any investment vehicle, registered foreign institutional investor, registered foreign portfolio investor or a foreign venture capital investor, where the terms shall have the meaning assigned to them in regulation 2 of the Foreign Exchange Management (Transfer or Issue of Security by a Person Resident Outside India) Regulations, 2017 made under the Foreign Exchange Management Act, 1999 (42 of (d) an asset reconstruction company registered with the Reserve Bank of India under Section 3 of the Securitisation and Reconstruction of Financial Assets and Enforcement of (e) an Alternate Investment Fund registered with the (f) such categories of persons as may be notified by the Due to the insertion of Section 29A, Mr Arun Kumar Jagmatramka became ineligible to submit a resolution plan. 6 No further resolution plan was approved by the CoC due to the paucity of time. In the absence of a resolution plan, the NCLT passed an order of liquidation on 11 January 2018, after the expiry of 270 days. The order of the NCLT ordering liquidation was challenged in appeal13 by Mr Arun Kumar Jagatramka before the NCLAT. The appeal was dismissed by the NCLAT by its order dated 10 July 2018. The dismissal of the appeal by the NCLAT was assailed before this Court, which issued notice to GNCL on 19 July 2019. 7 During the pendency of the appeal before NCLAT, where the order of liquidation passed by the NCLT was assailed, Mr Arun Kumar Jagatramka moved an application under Sections 230 to 232 of the Act of 2013 before the NCLT proposing a scheme for compromise and arrangement between the erstwhile promoters and creditors. This application was allowed by the NCLT through its order dated 15 May 2018, and a direction was issued for convening of a meeting of shareholders, secured creditors, unsecured creditors and FCCB holders for approval of the scheme of compromise and arrangement. 8 JSPL, an operational creditor of GNCL, preferred an appeal against the order of the NCLT dated 15 May 2018 before the NCLAT. The NCLAT allowed the appeal by its judgement dated 24 October 2019, holding that promoters who are ineligible to propose a resolution plan under Section 29A of the IBC are not entitled to file an application for compromise and arrangement under Sections 230 to 232 of the Act of 2013. The basis of this finding is contained in paragraphs 10 to 12 of the impugned judgement which is extracted below: “10. As noticed above, the Hon'ble Supreme Court in Swiss Ribbons Pvt. Ltd. & Anr. Vs. Union of India & Ors. - Writ Petition (Civil) No.99 of 2019 held that the 'primary focus of the legislation is to ensure revival and continuation of the corporate debtor by protecting the corporate debtor from its own management and from a corporate death by liquidation'. 11. The aforesaid judgment makes it clear that even during the period of Liquidation, for the purpose of Section 230 to 232 of the Companies Act, the 'Corporate Debtor' is to be saved from its own management, meaning thereby the Promoters, who are ineligible under Section 29A, are not entitled to file application for Compromise and Arrangement in their favour under Section 230 to 232 of the Companies Act. Proviso to Section 35(f) prohibits the Liquidator to sell the immovable and movable property or actionable claims of the 'Corporate Debtor' in Liquidation to any person who is not eligible to be a Resolution Applicant, quoted below: - "35. Powers and duties of Liquidator.-(1) Subject to the directions of the Adjudicating Authority, the liquidator shall (f) subject to section 52, to sell the immovable and movable property and actionable claims of the corporate debtor in liquidation by public auction or private contract, with power to transfer such property to any person or body corporate, or to sell the same in parcels in such manner as may be specified. Provided that the liquidator shall not sell the immovable and movable property or actionable claims of the corporate debtor in liquidation to any person who is not eligible to be a resolution applicant.” 12. From the aforesaid provision, it is clear that the Promoter, if ineligible under Section 29A cannot make an application for Compromise and Arrangement for taking back the immovable and movable property or actionable claims of the 'Corporate 9 The judgment and order of the NCLAT is the subject of the appeal. 10 This appeal has been filed for assailing an order dated 19 December 2019 of the NCLAT in which it relied on the judgment dated 24 October 2019 impugned in the earlier appeal, to hold that an individual ineligible for proposing a resolution plan under Section 29A of the IBC, is also ineligible to propose a scheme of compromise and arrangement under Section 230 of the Act of 2013. 11 The appellant - Mr Kunwer Sachdev - was the promoter and director (since suspended) of Su-Kam Power Systems Limited15. An application16 under Section 7 of the IBC was filed by one of the financial creditors of Su-Kam, which was admitted by the NCLT through its order dated 5 April 2018. The CIRP was initiated against Su-Kam. 12 When the RP invited applications for resolution plans for Su-Kam, Mr Kunwar Sachdev submitted a plan along with Phoenix ARC Private Limited on 15 November 2018. However, Mr Kunwar Sachdev was informed by an email dated 27 December 2018 issued by the RP, that the CoC had found him to be ineligible under Section 29A(h) of the IBC and consequently annulled his resolution plan. 13 This decision was challenged by filing an application17 before the NCLT. However, this was dismissed by the NCLT through its order dated 2 April 2019. This order was not challenged. 14 In the interim, due to the absence of any other resolution plan, the NCLT passed an order dated 3 April 2019, under Section 34(1) of the IBC, directing the liquidation of Su-Kam and appointing a Liquidator. The appointment of the Liquidator was challenged before the NCLAT in an appeal18, which was disposed of by an order dated 29 April 2019 upholding the appointment of the Liquidator. The Liquidator was also directed to accept applications for schemes of compromise and arrangement under Sections 230 to 232 of the Act of 2013. 15 When the Liquidator invited expressions of interest for submitting schemes of compromise and arrangement, Mr Kunwar Sachdev again expressed his interest. Emails were exchanged between the Liquidator and Mr Kunwar Sachdev, during the course of which Mr Kunwar Sachdev was invited to present his plan to the lenders of Su-Kam. However, before this could materialise, Mr Kunwar Sachdev was informed by the Liquidator through an email dated 19 September 2019, that he was ineligible to propose a scheme under Section 230 of the Act of 2013 in view of his ineligibility under Section 29A(h) of the IBC. 16 Mr Kunwar Sachdev challenged this decision in an application19 filed before the NCLT, which was dismissed by an order dated 31 October 2019 relying on the judgment dated 24 October 2019 impugned in the earlier appeal, and on the basis of Section 29A and Section 35(1)(f) of the IBC. 17 Mr Kunwar Sachdev then filed an appeal20 against this order dated 31 October 2019 before the NCLAT, which dismissed it by an order dated 19 December 2019. Mr Kunwar Sachdev now comes before this Court in appeal. 18 Before averting to Writ Petition (Civil) No 269 of 2020, it is important to first understand the controversy surrounding the Insolvency and Bankruptcy Board of 19 The Liquidation Process Regulations have been issued by the Insolvency and Bankruptcy Board of India22, constituted under Part IV of the IBC, in exercise Company Appeal (AT) (Insolvency) No. 1498 of 2019 of the powers conferred by Sections 5, 33, 34, 35, 37, 38, 39, 40, 41, 43, 45, 49, 50, 51, 52, 54, 196 and 208 read with Section 240 of the IBC. 20 The Liquidation Process Regulations were amended by the IBBI by a notification23 dated 25 July 2019, which inserted Regulation 2B. Sub-section (1) of Regulation 2B provides that a compromise or arrangement proposed under Section 230 of the Act of 2013 shall have to be completed within 90 days of the order of liquidation issued under sub-sections (1) and (4) of Section 33 of the IBC. Further, Sub-section (2) provides that the time taken in a compromise or arrangement, not exceeding 90 days, shall not be included within the liquidation period. Finally, Sub-section (3) provides that any cost which is incurred by the Liquidator in relation to the compromise or arrangement shall be borne by the corporate debtor, if such compromise or arrangement is sanctioned by the NCLT under Section 230(6). However, a proviso to Sub-section (3) notes that if such compromise or arrangement is not sanctioned by the NCLT under Section 230(6), the cost shall be borne by the parties who proposed the compromise or arrangement. 21 Regulation 2B was amended by a notification24 dated 6 January 2020, by which a proviso was added to Sub-section (1) of Regulation 2B, which provides that a party ineligible to propose a resolution plan under the IBC cannot be a party to a compromise or arrangement. Regulation 2B, in its present form, reads “2-B. Compromise or arrangement.—(1) Where a compromise or arrangement is proposed under Section 230 of the Companies Act, 2013 (18 of 2013), it shall be completed within ninety days of the order of liquidation under Provided that a person, who is not eligible under the Code to submit a resolution plan for insolvency resolution of the corporate debtor, shall not be a party in any manner to such compromise or arrangement. (2) The time taken on compromise or arrangement, not exceeding ninety days, shall not be included in the liquidation period. (3) Any cost incurred by the liquidator in relation to compromise or arrangement shall be borne by the corporate debtor, where such compromise or arrangement is sanctioned by the Tribunal under sub-section (6) of Section Provided that such cost shall be borne by the parties who proposed compromise or arrangement, where such compromise or arrangement is not sanctioned by the Tribunal under sub-section (6) of Section 230.” 22 Writ Petition (Civil) No 269 of 2020 has been filed by Mr Arun Kumar Jagatramka, also the appellant in the First Appeal, assailing the notifications dated 25 July 2019 and 6 January 2020 issued by the IBBI, through which it inserted Regulation 2B into the Liquidation Process Regulations, and subsequently amended it. As the petitioner, he contends that Regulation 2B is ultra vires the IBC and the Act of 2013, and also violates Articles 14, 19 and 21 of the Constitution. The prayer in the writ petition has been extracted below: “In the premises set forth above, the Petitioner prays that this a. Writ, Order or Direction more particularly in the nature of WRIT OF DECLARATION declaring that the provisions of Notifications dated 25.07.2019 and 06.01.2020 issued by the Insolvency and Bankruptcy Board of India are ultra vires the Insolvency and Bankruptcy Code, 2016 as well as the Companies Act, 2013 and violative of Article 14, 19, 21 of the Constitution of India.” 23 Having detailed the factual background of these petitions, we shall now turn to the issues before this Court and the submissions of counsels. 24 The NCLAT formulated two principal issues in the first of its judgments in “(i) Whether in a liquidation proceeding under Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the 'l&B Code') the Scheme for Compromise and Arrangement can be made in terms of Sections 230 to 232 of the (ii) If so permissible, whether the Promoter is eligible to file application for Compromise and Arrangement, while he is ineligible under Section 29A of the I&B to submit a 25 The first of the above issues has been answered in the affirmative by the NCLAT, to which, as Mr Sandeep Bajaj, learned Counsel for the appellant noted, there is no challenge. The real bone of dispute relates to the second issue. In the submission of Mr Sandeep Bajaj, what the NCLAT determined while addressing itself to the issue in dispute is whether the ineligibility under Section 29A of the IBC can be read into the provisions of Section 230 of the Act of 2013. In essence, Mr Bajaj’s approach to the issue is that a disqualification which is not provided by the legislature cannot be introduced by a judicial determination. In the present case, he submitted, Section 29A does not expressly provide that it extends to Section 230 of the Act of 2013. Section 230, in his submission, is a ‘different section in different enactment’ to which the ineligibility under Section 29A of the IBC cannot be attracted. 26 Mr Amit Sibal, learned Senior Counsel appearing for the respondent in the Second Appeal, on the other hand, submitted that the correct question to pose is whether a person who is ineligible under Section 29A of the IBC is permitted to propose a scheme for revival under Section 230 of the Act of 2013 at the stage of liquidation either themselves or in concert with others. 27 The nuanced manner in which the contesting sides have prefaced their submissions is indicative of the broad nature of the contest. On one hand, Mr Bajaj submits that the ineligibility under Section 29A of the IBC attaches to the proceedings under the IBC alone, involving the submission of a resolution plan. On the other hand, what Mr Sibal urges is that when an order of liquidation has been passed under and in pursuance of proceedings which were initiated under the IBC, Section 230 of the Act of 2013 expressly contemplates that the liquidator appointed under the IBC may move the NCLT where a compromise or arrangement is proposed. Hence, the proposal for a compromise or arrangement under Section 230, where a company is in liquidation under the IBC, is in continuation of that liquidation process. Hence, according to Mr Sibal, a person who is ineligible under Section 29A cannot propose a scheme for revival under 28 Having thus elucidated the battle lines of legal conflict, we proceed to enumerate the submissions. 29 Mr Sandeep Bajaj, learned Counsel appearing on behalf of the appellant in the First Appeal and the Petition under Article 32 submitted that: (i) Chapter II of the IBC indicates that the CIRP can be invoked in three (a) By a financial creditor under Section 7; (b) By an operational creditor under Section 9; and (c) By a corporate debtor under Section 10. (ii) The IBC and its regulations indicate that there is a clear distinction (a) the settlement mechanism which allows for a settlement upon which the corporate debtor would stand restored to the promoter together (b) the resolution mechanism under which, upon the acceptance of a resolution plan, the company moves over to the control of the acquirer on a clean slate for a fixed consideration, consequent to the (iii) Section 29A is a part of the resolution mechanism, the object and purpose of which is to prevent a back-door entry to the promoter who should not be allowed to have advantage of their own wrong; (iv) Though the appellant falls in the prohibited category under Section 29A, the purpose of the prohibition is to prevent the promoter from submitting a resolution plan with reference to the provisions of Sections 30 and 31 of (v) Chapter III of the IBC, commencing with Section 33, deals with the liquidation process and Regulation 32 of the Liquidation Process Regulations deals with “sale of assets etc. by the liquidator”. In the course of the liquidation under Chapter III, the liquidation estate is to be formed under Section 36 and the sale under Regulation 32 is an intrinsic part of the liquidation estate. The consequence is that acquirer begins on a clean slate. The ineligibility under Section 29A which attaches for the purpose of Chapter II, in the context of a resolution plan, has been extended under Section 35(1)(f) to Chapter III on the basis of the above rationale, i.e., that the liquidator shall not sell the moveable or immoveable property of the corporate debtor or its actionable claims in liquidation to any person who is (vi) Rule 8 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 contemplates that the NCLT, in its role as the Adjudicating Authority, may permit withdrawal of an application by the financial creditor, operational creditor or corporate applicant on a request made by the applicant before its admission. This is indicative of the position that the NCLAT does not have an inherent power to allow for withdrawal of the application after admission; (vii) Section 12-A was inserted in the IBC by Amending Act 26 of 2018 with retrospective effect from 6 June 2018 so as to permit the NCLT to allow the withdrawal of an application which has been admitted under Sections 7, 9 or 10 on an application made by the applicant, with the approval of ninety per cent of a voting share of the CoC in such a manner as may be (viii) Regulation 30-A of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (which was inserted on 3 July 2018) allowed for the withdrawal under Section 12-A before the issuance of an invitation for expression of interest under Regulation 36-A. In the decision of this Court in Swiss Ribbons Private Limited v. Union of India25 which was rendered on 25 January 2019, the Court held that a withdrawal of an application can be permitted between admission of the application and the constitution of the CoC. Following up on this, Regulation 30-A was substituted on 25 July 2019 to allow an application for withdrawal under Section 12-A both before and after the constitution of the CoC. However, where the application is made after the constitution of the CoC (under Regulation 30-A(1)(b)), and after the issuance of the invitation for expression of interest, the reasons justifying the withdrawal are required to be stated; (2019) 4 SCC 17; herein, referred to as “Swiss Ribbons” (ix) The decision in Brilliant Alloys (P) Ltd. v. S Rajagopal26 would indicate that a withdrawal can be permitted even after the expression of interest, as a consequence of which Regulation 30-A is directory in nature; (x) The consequence of a withdrawal of the application under Sections 7, 9 or 10 is that the corporate debtor stands restored to the promoter. As such, Section 29A does not operate as an ineligibility on the settlement mechanism. On the withdrawal of the application the corporate debtor goes back to the same promoter, even if they are ineligible under Section 29A for the submission of the resolution plan; (xi) The ineligibility under Section 29A, which forms a part of Chapter II of the IBC, is only during the resolution process; (xii) The rationale for imposing an ineligibility under Section 29A in the resolution process is that the successful resolution applicant under Section 31 of the IBC obtains the company on a clean slate, as indicated in the decision of this Court in Committee of Creditors of Essar Steel India Limited v. Satish Kumar Gupta27. This benefit is not available where an application is simpliciter withdrawn under Section 12-A; (xiii) Section 230 of the Act of 2013 is a part of the settlement mechanism and is at par with the provisions of Section 12-A. The impact of a compromise or arrangement is also that company is restored to the promoters with all its liabilities. While Section 12-A of the IBC permits withdrawal of an 2018 SCC OnLine SC 3154; hereinafter, referred to as “Brilliant Alloys” application, Sections 230 and 230-A of the Act of 2013 envisage a compromise or arrangement. As such, they both form a part of the settlement mechanism and are not part of the resolution mechanism, to which alone the ineligibility under Section 29A applies. Hence, this ineligibility cannot now be engrafted into Section 230; (xiv) Section 230 was amended on 15 November 2016 and under Sub-Section (6), the compromise or arrangement becomes binding if 3/4th in value of the creditors or class of creditors or members agree to it, and if it is sanctioned by the NCLT. The compromise or arrangement then becomes binding on the liquidator appointed under the IBC as a whole. The provisions of Section 230 are, however, not restricted to liquidation. They are not regulated by the IBC. Section 230 operates in an area independent of the IBC. Following the amendment of Section 230(1) on 15 November 2016, the application for a compromise can also be proposed by the liquidator appointed under the IBC. However, the right of the liquidator to make an application under Section 230(1) is in addition to the others enumerated therein and not exclusive, in view of the principle which was laid down by this Court while construing the corresponding provisions of (xv) The discussion papers circulated by the IBBI in April and November 2019 clearly demonstrate that IBBI was aware of the fact that the ineligibility which attaches to the resolution process under Section 29A will not attach the “Act of 1956” to Section 230 of the Act of 2013. The proviso to Regulation 2B was notified by the IBBI on 6 January 2020 to stipulate that a person who is not eligible under the IBC to submit a resolution plan for insolvency resolution of the corporate debtor shall not be a party to such compromise or arrangement. Regulation 2B is ultra vires the provisions of Section 230 of the Act of 2013. IBBI had no statutory authority to make the Regulation 2B, through which it has effectively provided a disqualification under the Act of 2013, even though the mandate of IBBI is confined only to the IBC; and (xvi) Regulation 2B is violative of Articles 14, 19 and 21 of the Constitution as it seeks to import an ineligibility under the provisions of the IBC to a dissimilar provision in the Act of 2013. Moreover, when ineligibility is not attracted under Section 12-A of the IBC, imposing this ineligibility under Section 230 of the Act of 2013 is arbitrary. 30 Adopting the submissions which were urged by Mr Sandeep Bajaj, Mr Shiv Shankar Banerjee, learned Counsel appearing on behalf of the appellant in the (i) A complete procedure has been stipulated under the provisions of the IBC (ii) Where a sale of the assets of the corporate debtor or sale of the business of the corporate debtor takes place in the course of the liquidation, Section 35(1)(f) of the IBC stipulates that the assets cannot be sold to a person who is ineligible under Section 29A. The object is to ensure that liquidation should not be used to allow the promoter to get the assets free from (iii) In contrast to a successful resolution applicant under Chapter II or the person who benefits from the sale of assets in liquidation under Chapter III of the IBC, the person who proposes a compromise or arrangement under Section 230 under the Act of 2013 does not have the benefit of acquiring the company free of encumbrances. There is thus no reason or justification to exclude the promoter from invoking the provisions of Section 230; (iv) Section 230(1) makes a reference to a liquidator appointed under the IBC because when the provision of Sections 7, 9 or 10 have been invoked, and an order of admission has been passed, liquidation, if required, will take place under the provisions of Section 35 of the IBC; (v) The mischief which was sought to be remedied by the adoption of Section 29A is restricted to the resolution process, its object being that persons should not take advantage of their own wrong. It is justifiable if a defaulter is excluded from the resolution process which may result in the creditors taking a haircut of their outstanding claims. Moreover, a successful resolution applicant begins on a clean slate. In contrast, under Section 230, the scheme has to be sanctioned by the NCLT only upon which it will (vi) The insertion of the proviso in Regulation 2B of the Liquidation Process Regulations is a clear indicator of the fact that a disqualification or ineligibility under Section 29A is not a part of Section 230 of the Act of 31 The above submissions have been contested by Mr Amit Sibal, learned Senior Counsel appearing on behalf of the respondents in the Second Appeal. (i) A proposal under Section 230 of the Act of 2013 need not result in the revival of the company. The proposal may apply only to a class of creditors or shareholders. Even prior to its amendment, this Court had held that additional conditions apply when a plan under the erstwhile provisions of Section 391 of the Act of 1956 is propounded at the time of liquidation of (ii) Section 29A has several ineligibilities apart from those that attach to promoters. To allow a person who is ineligible under Section 29A from submitting a compromise or arrangement under Section 230 at the liquidation stage is contrary to the letter and spirit of the IBC; (iii) The NCLT while dealing with an application for a compromise or arrangement under Section 230 of the Act of 2013, in respect of a company which is being liquidated under the IBC, performs a dual role: firstly, as an Adjudicating Authority under the IBC and as a Tribunal under the Act of 2013. Therefore, it can insist on adherence to additional (a) The proposed compromise or arrangement must result in a revival of (b) The compromise or arrangement cannot be proposed by a person (iv) When the IBC was originally enacted there was no bar of the nature found in Section 29A on who can propose a resolution plan either pre or post (v) The ineligibility under Section 29A and Section 35(1)(f) was introduced by a legislative amendment on 23 November 201729, both at the pre and post (vi) The purpose of the disqualification is to ensure a sustainable revival, which means that those responsible for the state of affairs of a company and other persons regarded by the legislature as undesirable should be (vii) Persons who are ineligible under Section 29A or Section 35(1)(f) cannot (c) by purchasing the assets during liquidation. (viii) Section 29A does not apply only to conduct in relation to the corporate debtor, but in relation to other companies as well; (ix) The ineligibility engrafted in Section 29A extends to Chapter III by virtue of the provision of Section 35(1)(f). This must be read together with “Act 8 of 2018” Regulation 32 of the Liquidation Process Regulations. Regulation 32 provides six modes of realization of assets, out of which four involve the sale of assets and two involve the transfer of the corporate debtor or its (x) Regulation 44(1), through its proviso, allows for an additional period of ninety days for the liquidation process where the sale is through Regulation 32-A(1) so as to encourage a revival of the company; (xi) There is no reference in the body of the IBC to a scheme of compromise under Section 230. Section 230 (especially sub-Sections (1) and (6)) (a) a compromise can be with a sub-set of creditors; (b) liquidation is one scenario in which Section 230 can be invoked; and (c) a compromise with only a class of creditors will bind only that class (xii) While construing the corresponding provisions of erstwhile Section 391 of the Act of 1956, this Court held in Meghal Homes Pvt. Ltd. v Shree Niwas Girni K. K. Samiti30 that where a scheme of compromise and arrangement is proposed in respect of the company in liquidation, additional requirements need to be established, namely that the scheme must be for the revival of company. The impact of a scheme under Section 391, where the company is in liquidation, is that the proposers of the scheme enter into the management with the debt having been resolved. (2007) 7 SCC 753; herein, referred to as “Meghal Homes” This makes the scheme of compromise or arrangement under Section 230 qualitatively different from a simpliciter withdrawal of an application under Section 12-A of the IBC. Section 12-A does not incorporate any requirement for the revival of the company; (xiii) The IBC provides for three modes of revival: (b) sale of a company in liquidation as a going concern (read with (c) a scheme of compromise or arrangement under Section 230 of the Act of 2013, following upon an order for liquidation being passed The prohibition or ineligibility which applies in (a) and (b) must necessarily attach to (c) as well. When a plan for compromise or arrangement is proposed at the liquidation stage of IBC under Section 230 of the Act of 2013, it must satisfy the rigors of the IBC. Hence, a person who is ineligible under Section 29A cannot submit a plan under Section 230 of the Act of (xiv) In construing the provisions of Sections 29A and 35(1)(f) of the IBC, notice must be taken of the fact that the ineligibility was made applicable both to the resolution stage as well as the stage of liquidation. In interpreting these provisions, the purpose and object of the amendment must be borne in mind, which is that a scheme of revival cannot be proposed by a person who stands disqualified under Section 29A; (xv) The proposal of a compromise or arrangement under Section 230 in a situation where the company is in liquidation under the IBC is a facet of the liquidation process under the IBC. Section 230 was amended to include a liquidator appointed under the IBC. The statutory scheme indicates that: (a) A liquidation under the IBC follows upon the entire gamut of (b) Section 230 of the Act of 2013 provides one of the modes of revival (c) Other activities of the liquidator do not cease while inviting schemes under Section 230. The steps required to be taken by the liquidator in liquidation include a compromise or arrangement under Section 230. It is in this context that the NCLT performs a dual role - that of an Adjudicating Authority in the matter of liquidation under the IBC as well as of a Tribunal for a scheme of compromise and (xvi) The fundamental postulate of the IBC is that a corporate debtor has to be protected from its management and corporate debt. Hence, it would be anomalous if a compromise or arrangement can be entertained from a person who is responsible for the state of affairs of the corporate debtor; (xvii) Where a company is in liquidation under the provisions of the IBC, the submission of a compromise or arrangement under Section 230 has distinct features of commonality with a resolution plan namely: (b) Once officially approved, it assumes a binding character; These intrinsic elements of revival and of the binding nature permeate both a resolution plan on the one hand and a compromise or arrangement on the other, which is arrived at in the course of liquidation; (xviii) The introduction of the proviso to Regulation 2(B) of the Liquidation Process Regulations with effect from 6 January 2020 is only by way of a (xix) Dehors the provisions of the IBC, the rigors of the IBC will not apply to a proceeding under Section 230 of the Act of 2013. In other words, the ineligibility under Sections 29A and 35(1)(f) applies only to a situation where a corporate debtor has come within the purview of the IBC and has been taken into liquidation under Chapter III. It is only where a compromise or arrangement under Section 230 of the Act of 2013 is proposed in respect of a company which is undergoing liquidation under the IBC that the rigors of Section 29A and 35(1)(f) would stand attracted; (xx) An absurdity will result if persons found to be derelict or guilty of (b) obtaining a sale of assets in liquidation; and (c) obtaining a sale of the company as a going concern. can still propose a compromise under Section 230 of the Act of 2013. It is a settled principle of law that an interpretation which leads to absurdity (xxi) There is a fallacy in equating the provisions of Section 230 of the Act of 2013 with an application for withdrawal under Section 12-A of the IBC. Section 12-A is not intended to be the culmination of the resolution process but is at the inception. The withdrawal by an applicant leads to a status quo ante in respect of liabilities of the corporate debtor and does not require that the defaults in respect of all creditors are brought to an end. In (a) a resolution plan under Section 31 of the IBC (as well as the scheme under Section 230 of the Act of 2013) binds all the (b) results in a clean slate unlike Section 12-A; and (c) constitutes a culmination of the resolution plan. As distinct from the provisions of Section 31 of the IBC and Section 230 of the Act of 2013, a withdrawal under Section 12-A restores the status quo ante and is hence not concerned with ineligibilities under Section 29A; and (xxii) Section 240 of the IBC enunciates the power to make regulations to carry out the provisions of the Code. The insertion of the proviso to Regulation (a) the amendment is consistent with the IBC and carries out its (b) it is clarificatory in nature since even in its absence, the ineligibility under Section 29A would govern. (i) Where a company is in liquidation under Chapter III of the IBC, a proposed scheme of compromise or arrangement under Section 230 of the Act of 2013 must comply with the requirements of the IBC; (ii) The specific requirements which must be fulfilled under (i) above are that: (a) the scheme must be for the revival of the company; and (b) it must not be proposed by a person who is ineligible under Section (iii) The above requirements are IBC specific and not inconsistent with the provisions of Section 230 of the Act of 2013; (iv) Sections 29A and 35(1)(f) of the IBC prohibit a certain category of persons from proposing a revival of the company in the course of the CIRP, liquidation process and in purchasing the assets in the course of liquidation. To make an exception in a plan for revival under Section 230 of the Act of 2013 in the context of a scheme of compromise or arrangement will defeat the object and intent of the amendment to the IBC and lead to an absurdity. This would perpetrate the mischief which was sought to be (v) When a company is in liquidation under the IBC, a scheme proposed under Section 230 is a facet of the liquidation process and the same rationale which permeates the liquidation process must also govern it; and (vi) Section 12-A stands on a completely different footing. It provides for a withdrawal at the inception of the CIRP and is not a culmination of a resolution process. Nor does a Section 12-A withdrawal bind all stakeholders. 33 Mr Gopal Jain, learned Senior Counsel appearing for the respondents in the First Appeal, has urged submissions along the same lines as Mr Amit Sibal. (i) The commencement or the initiation process attracting the IBC is an (ii) In the present case, an application was filed under Section 10 as a consequence of which the case has to be analyzed through the prism of (iii) The IBC is an economic legislation and its key objectives are to ensure: (c) protect the integrity of the resolution process; (e) foster respect for the rule of law. The IBC is premised on the principle that there is a significant element of public interest in facilitating a creditor-centric regime for achieving economic growth. Ensuring that resolution plans are submitted by credible persons is intrinsic to the scheme of the IBC. Speed is of the essence. The IBC has sought to convert a legal regime which was a debtor’s paradise into a regime governed by corporate justness. The regime under the IBC is dynamic, which is reflected by eight amendments which took place between November (iv) The basic principle is that an entity which is barred under Section 29A and Section 35(1)(f) should not be in control of the assets of the corporate debtor. The objective is that defaulting promoters: (v) In order to achieve the above objectives, the Parliament enacted a simultaneous amendment of both Section 29A and Section 35(1)(f) to maintain a level playing field by comprehensively catering to all situations relating to defaulting or barred promoters; (vi) In interpreting the IBC, legal sanctity and clarity are of utmost importance. But for Section 29A, promoters would have got back into management after securing a haircut to lenders in the course of the resolution plans. Section 29A which applies to the resolution process and Section 35(1)(f) which applies to the liquidation process were intended to plug a loophole. To accept the submissions of the appellants would be creating a new loophole. Section 29A is in the nature of a see-through provision. The submissions of the appellants will in fact scare away genuine creditors and (vii) According to Section 238 of the IBC, in case of any inconsistency between the provisions of the IBC and any other law in force, the provisions of the IBC are to have an overriding effect. 34 Mr Tushar Mehta, learned Solicitor of General of India, defended the validity of Regulation 2B, more specifically the proviso. The learned Solicitor (i) The trigger is the liquidation resulting from the operation of the provisions (ii) Regulation 2B facilitates an additional period of ninety days for a compromise under Section 230 of the Act of 2013 because the entire (iii) Even if the legal position is assessed independent of Regulation 2B, the same embargo as contained in Section 29A and Section 35(1)(f) would apply to a compromise or arrangement proposed under Section 230 of the Act of 2013 in respect of a company which is undergoing liquidation under (iv) Regulation 2B is essentially clarificatory; (v) The basis of Regulation 2B is the same as Sections 29A and 35(1)(f), which is that a person who is the cause of the problem either by a design or default cannot be a part of the process solution; (vi) The IBC is a beneficial legislation. Prior to the enactment of the IBC: (a) individual creditors had individual remedies; and (b) the debtor would remain in possession of the company and its assets. With the introduction of the IBC, there has been a paradigm shift in that: (a) under the new legal regime there is a collective effort of all creditors (b) the creditor is in control instead of the debtor in possession; and (vii) Sections 196 and 240 of the IBC reflect a specific conferment of power on the IBBI to frame regulations subject to the stipulation that: (i) they are not inconsistent with the provisions of the IBC; and (ii) they carry out the purposes of the IBC. Both these conditions are fulfilled by Regulation 2(B); (viii) A regulation which is framed under a statute in exercise of the authority which is conferred on the delegate can be challenged on the ground of (b) being contrary to the provisions of Part III of the Constitution; To suffer from unreasonableness, a regulation must be held to be manifestly arbitrary. Regulation 2(B) is consistent with the object and purpose of the IBC; and does not suffer from manifest arbitrariness; and (ix) Sections 29A and 35(1)(f) apply to liquidation pursuant to the IBC. The principle of Section 29A stands absorbed in the hybrid process of compromise during liquidation under the IBC, by way of a device of incorporation by reference. 35 Mr Balbir Singh, learned Additional Solicitor General, has addressed submissions also along the above lines. 36 Having narrated the submissions advanced by both sides, we now turn to the legal position and the interplay between the proposal of a scheme of compromise and arrangement under Section 230 of the Act of 2013 and liquidation proceedings initiated under Chapter III of the IBC. D.1 Ineligibility during the resolution process and liquidation 37 Section 29A of the IBC was introduced with effect from 23 November 2017 by Act 8 of 2018. The birth of the provision is an event attributable to the experience which was gained from the actual working of the provisions of the statute since it was published in the Gazette of India on 28 May 2016. The provisions of the IBC were progressively brought into force thereafter. 38 The IBC is a law which consolidated and amended existing legislation relating to re-organisation and insolvency resolution of corporate persons, partnerships and individuals. The long title to the legislation indicates the specific objects, which it is intended to facilitate. These objects include: (i) A time bound process of re-organization and insolvency resolution; (iv) Facilitating the availability of credit; and (v) Balancing the interests of all stakeholders. 39 Some of the key drawbacks of the legal regime, as it existed prior to the (i) The absence of a single legislation governing insolvency and bankruptcy; (ii) A multiplicity of laws governing insolvency and bankruptcy of corporate (iii) The existence of multiple fora established to deal with the enforcement of (iv) The complexity caused by a maze of statutes resulting in inadequate, ineffective and delayed resolutions, occasioned by the (then) existing framework. These inadequacies were noticed in the Statement of Objects and Reasons accompanying the introduction of the Bill. The IBC reflects a fundamental change in the erstwhile legal regime. A timely resolution of corporate insolvency was conceived as an instrument to support the development of credit markets, encourage entrepreneurship, enhance the ease of doing business and provide an environment conducive to investment, setting the economy on the path to growth and development. In resolving some of the complex issues which arise under the new legal regime envisaged under the IBC, it then becomes necessary to vacuum the cobwebs of the past. Interpreting the IBC in a manner which would facilitate the salutary objects which it is intended to achieve requires all stakeholders to shed concepts and notions associated with the earlier legal regime, which was largely a debtor’s paradise. The earlier regime was one in which the debtor would largely remain in possession of the company and its assets and individual creditors were left to paddle their own canoe in headwinds controlled by those in debt and default. 40 The enactment of the IBC has marked a quantum change in corporate governance and the rule of law. First and foremost, the IBC perceives good corporate governance, respect for and adherence to the rule of law as central to the resolution of corporate insolvencies. Second, the IBC perceives corporate insolvency not as an isolated problem faced by an individual business entities but places it in the context of a framework which is founded on public interest in facilitating economic growth by balancing diverse stakeholder interests. Third, the IBC attributes a primacy to the business decisions taken by creditors acting as a collective body, on the premise that the timely resolution of corporate insolvency is necessary to ensure the growth of credit markets and encourage investment. Fourth, in its diverse provisions, the IBC ensures that the interests of corporate enterprises are not conflated with the interests of their promoters; the economic value of corporate structures is broader in content than the partisan interests of their managements. These salutary objectives of the IBC can be achieved if the integrity of the resolution process is placed at the forefront. Primarily, the IBC is a legislation aimed at re-organization and resolution of insolvencies. Liquidation is a matter of last resort. These objectives can be achieved only through a purposive interpretation which requires courts, while infusing meaning and content to its provisions, to ensure that the problems which beset the earlier regime do not enter through the backdoor through disingenuous stratagems. 41 On 23 November 2017, Parliament intervened through its amending power to introduce Section 29A into the provisions of Chapter II and Section 35(1)(f) into the provisions of Chapter III. Chapter II of the IBC ,which enunciates provisions for the CIRP, has evolved over the previous four years. Chapter III enunciates provisions in regard to the liquidation process. Section 29A stipulates diverse categories of persons who will not be eligible to submit a resolution plan. 42 By the same amending Act through which Section 29A was introduced, Section 35(1)(f) was also amended with the introduction of a proviso. Section 35 specifies the powers of the liquidator as well as their duties, which are subject to the directions of the Adjudicating Authority. Section 35(1)(f) provides as follows: “35. Powers and duties of liquidator.—(1) Subject to the directions of the Adjudicating Authority, the liquidator shall have the following powers and duties, namely:— (f) subject to section 52, to sell the immovable and movable property and actionable claims of the corporate debtor in liquidation by public auction or private contract, with power to transfer such property to any person or body corporate, or to sell the same in parcels in such manner as may be specified: Provided that the liquidator shall not sell the immovable and movable property or actionable claims of the corporate debtor in liquidation to any person who is not eligible to be a resolution applicant.” 43 The Statement of Objects and Reasons accompanying the introduction of the Bill proposing the amendment dated 23 November 2017, elucidates the purpose of introducing the new provisions: “2. The provisions for insolvency resolution and liquidation of a corporate person in the Code did not restrict or bar any person from submitting a resolution plan or participating in the acquisition process of the assets of a company at the time of liquidation. Concerns have been raised that persons who, with their misconduct contributed to defaults of companies or are otherwise undesirable, may misuse this situation due to lack of prohibition or restrictions to participate in the resolution or liquidation process, and gain or regain control of the corporate debtor. This may undermine the processes laid down in the Code as the unscrupulous person would be seen to be rewarded at the expense of creditors. In addition, in order to check that the undesirable persons who may have submitted their resolution plans in the absence of such a provision, responsibility is also being entrusted on the committee of creditors to give a reasonable period to repay overdue amounts and become eligible.” 44 During the course of the debate in the Lok Sabha on 29 December 2017, the Finance Minister noted that the IBC had been in operation for about a year. The new legislation had been a “learning experience”. The Ordinance was promulgated since a large number of cases were “already pending resolution mechanism itself” and there was a danger that if the amendment was not immediately brought in, persons who were “ineligible” would have started applying as resolution applicants. The Finance Minister in the course of his speech highlighted the reason for the amendments when he observed as follows: “…What do you do with promoters who are themselves responsible for these NPAs, that is clause C. Every creditor takes his haircut and there is an equitable distribution in the case of dissolution. In the case of resolution also, all type of creditors may take some haircut and the man who created the insolvency pays a fraction of the amount and comes back into management. Should we allow that to continue? The overwhelming view, as expressed by the Members, is that it should not be allowed. This was a gap which was there in the original Bill and by bringing in 29(a) we have tried to fill in that gap. That is the objective. In order that this provision must apply to all existing cases of resolution which are pending, that is the case for urgency. If we had not done this, then all such defaulters would have rejoiced because they would have merely walked back into these companies by paying only a fraction of these amounts. That is something which besides being commercially imprudent would also be morally unacceptable. That is the real rationale behind this particular Bill:.” 45 The Report of the Insolvency Law Committee dated 3 March 2018 states that the intent behind introducing Section 29A was to prevent unscrupulous persons from gaining control over the affairs of the company. These persons included those who by their misconduct have contributed to the defaults of the company or are otherwise undesirable. The Committee observed: “14.1. Section 29A was added to the Code by the Amendment Act. Owing to this provision, persons, who by their misconduct contributed to the defaults of the corporate debtor or are otherwise undesirable, are prevented from gaining or regaining control of the corporate debtor. This provision protects creditors of the company by preventing unscrupulous persons from rewarding themselves at the expense of creditors and undermining the processes laid down in the Code.” 46 Significantly, the ineligibility which was engrafted by the amending legislation was incorporated in both the provisions of Chapter II dealing with the CIRP as well as in Chapter III dealing with the liquidation process. Section 29A stipulates the category of persons who “shall not be eligible to submit a resolution plan”. The proviso to Section 35(1)(f) incorporates the same norm in the liquidation process, when it stipulates that the liquidator shall not sell the immovable and movable or actionable claims of the corporate debtor in liquidation “to any person who is not eligible to be a resolution applicant”. These words in Section 35(1)(f) are clearly referable to the ineligibility which is set up in 47 The underlying purpose of introducing Section 29A was adverted to in a judgment of this court in Chitra Sharma v. Union of India31. One of us (Justice DY Chandrachud) speaking for a Bench of three learned judges took note of the Statement of Objects and Reasons accompanying the Bill and emphasised the 38. Parliament has introduced Section 29A into IBC with a specific purpose. The provisions of Section 29A are intended to ensure that among others, persons responsible for insolvency of the corporate debtor do not participate in the resolution process. The Statement of Objects and Reasons appended to the Insolvency and Bankruptcy Code (Amendment) Bill, 2017, which was ultimately enacted as Act “2. The provisions for insolvency resolution and liquidation of a corporate person in the Code did not restrict or bar any person from submitting a resolution plan or participating in the acquisition process of the liquidation. Concerns have been raised that persons who, with their misconduct contributed to defaults of companies or are otherwise undesirable, may misuse this situation due to lack of prohibition or restrictions to participate in the resolution or liquidation process, and gain or regain control of the corporate debtor. This may undermine the processes laid down in the Code as the unscrupulous person would be seen to be rewarded at the expense of creditors. In addition, in (2018) 18 SCC 575; hereinafter, referred to as “Chitra Sharma” order to check that the undesirable persons who may have submitted their resolution plans in the absence of such a provision, responsibility is also being entrusted on the committee of creditors to give a reasonable eligible.” Parliament was evidently concerned over the fact that persons whose misconduct has contributed to defaults on the part of debtor companies misuse the absence of a bar on their participation in the resolution process to gain an entry. Parliament was of the view that to allow such persons to participate in the resolution process would undermine the salutary object and purpose of the Act. It was in this background that Section 29A has now specified a list of persons who are not eligible to be resolution applicants.” 48 The Court held that “Section 29A has been enacted in the larger public interest and to facilitate effective corporate governance”. The Court further observed that “Parliament rectified a loophole in the Act which allowed backdoor entry to erstwhile managements in the CIRP”. 49 In Arcelormittal India Private Limited v. Satish Kumar Gupta & Ors.32, Justice Rohinton F Nariman, speaking for himself and Justice Indu Malhotra, reiterated the same principle when he underscored the need to impart a purposive interpretation to Section 29A “depending both on the text and context “30. A purposive interpretation of Section 29A, depending both on the text and the context in which the provision was enacted, must, therefore, inform our interpretation of the (2019) 2 SCC 1; hereinafter, referred to as “Arcelormittal” same. We are concerned in the present matter with clauses (c), (f), (i) and (j) thereof.” The decision adverts to Section 29A as “a typical instance of a ‘see-through provision’ so that one is able to arrive at persons who are actually in ‘control’, whether jointly or in concert with other persons33. 50 In Swiss Ribbons (supra), the constitutionality of certain provisions of the IBC was challenged. Justice Rohinton F Nariman emphasised the object of the “27. As is discernible, the Preamble gives an insight into what is sought to be achieved by the Code. The Code is first and foremost, a Code for reorganization and insolvency resolution of corporate debtors. Unless such reorganization is effected in a time-bound manner, the value of the assets of such persons will deplete. Therefore, maximization of value of the assets of such persons so that they are efficiently run as going concerns is another very important objective of the Code. This, in turn, will promote entrepreneurship as the persons in management of the corporate debtor are removed and replaced by entrepreneurs. When, therefore, a resolution plan takes off and the corporate debtor is brought back into the economic mainstream, it is able to repay its debts, which, in turn, enhances the viability of credit in the hands of banks and financial institutions. Above all, ultimately, the interests of all stakeholders are looked after as the corporate debtor itself becomes a beneficiary of the resolution scheme—workers are “32. The opening lines of Section 29A of the Amendment Act refer to a de facto as opposed to a de jure position of the persons mentioned therein. This is a typical instance of a “see-through provision”, so that one is able to arrive at persons who are actually in “control”, whether jointly, or in concert, with other persons. A wooden, literal, interpretation would obviously not permit a tearing of the corporate veil when it comes to the “person” whose eligibility is to be gone into. However, a purposeful and contextual interpretation, such as is the felt necessity of interpretation of such a provision as Section 29A, alone governs. For example, it is well settled that a shareholder is a separate legal entity from the company in which he holds shares. This may be true generally speaking, but when it comes to a corporate vehicle that is set up for the purpose of submission of a resolution plan, it is not only permissible but imperative for the competent authority to find out as to who are the constituent elements that make up such a company. In such cases, the principle laid down in Salomon v. A. Salomon & Co. Ltd. [Salomon v. A. Salomon & Co. Ltd., 1897 AC 22 (HL)] will not apply. For it is important to discover in such cases as to who are the real individuals or entities who are acting jointly or in concert, and who have set up such a corporate vehicle for the purpose of submission of a resolution plan.” paid, the creditors in the long run will be repaid in full, and shareholders/investors are able to maximize their investment. Timely resolution of a corporate debtor who is in the red, by an effective legal framework, would go a long way to support the development of credit markets. Since more investment can be made with funds that have come back into the economy, business then eases up, which leads, overall, to higher economic growth and development of the Indian economy. What is interesting to note is that the Preamble does not, in any manner, refer to liquidation, which is only availed of as a last resort if there is either no resolution plan or the resolution plans submitted are not up to the mark. Even in liquidation, the liquidator can sell the business of the corporate debtor as a going concern. (See ArcelorMittal [ArcelorMittal (India) (P) Ltd. v. Satish Kumar Gupta, (2019) 2 SCC 1] at para 83, fn 3). 28. It can thus be seen that the primary focus of the legislation is to ensure revival and continuation of the corporate debtor by protecting the corporate debtor from its own management and from a corporate death by liquidation. The Code is thus a beneficial legislation which puts the corporate debtor back on its feet, not being a mere recovery legislation for creditors. The interests of the corporate debtor have, therefore, been bifurcated and separated from that of its promoters/those who are in management. Thus, the resolution process is not adversarial to the corporate debtor but, in fact, protective of its interests. The moratorium imposed by Section 14 is in the interest of the corporate debtor itself, thereby preserving the assets of the corporate debtor during the resolution process. The timelines within which the resolution process is to take place again protects the corporate debtor’s assets from further dilution, and also protects all its creditors and workers by seeing that the resolution process goes through as fast as possible so that another management can, through its entrepreneurial skills, resuscitate the corporate debtor to achieve all these ends.” 51 While adverting to the earlier decision in Chitra Sharma and Arcelormittal (supra), which had elucidated the object underlying Section 29A, this Court in Swiss Ribbons (supra) held that the norm underlying Section 29A “continues to permeate” Section 35(1)(f) “when it applies not merely to resolution applicants, but to liquidation also”. Rejecting the plea that Section 35(1)(f) is ultra “102. According to the learned counsel for the petitioners, when immovable and movable property is sold in liquidation, it ought to be sold to any person, including persons who are not eligible to be resolution applicants as, often, it is the erstwhile promoter who alone may purchase such properties piecemeal by public auction or by private contract. The same rationale that has been provided earlier in this judgment will apply to this proviso as well — there is no vested right in an erstwhile promoter of a corporate debtor to bid for the immovable and movable property of the corporate debtor in liquidation. Further, given the categories of persons who are ineligible under Section 29A, which includes persons who are malfeasant, or persons who have fallen foul of the law in some way, and persons who are unable to pay their debts in the grace period allowed, are further, by this proviso, interdicted from purchasing assets of the corporate debtor whose debts they have either willfully not paid or have been unable to pay. The legislative purpose which permeates Section 29A continues to permeate the section when it applies not merely to resolution applicants, but to liquidation also. Consequently, this plea is also rejected.” 52 This line of decisions, beginning with Chitra Sharma (supra) and continuing to Arcelormittal (supra) and Swiss Ribbons (supra) is significant in adopting a purposive interpretation of Section 29A. Section 29A has been construed to be a crucial link in ensuring that the objects of the IBC are not defeated by allowing “ineligible persons”, including but not confined to those in the management who have run the company aground, to return in the new avatar of resolution applicants. Section 35(1)(f) is placed in the same continuum when the Court observes that the erstwhile promoters of a corporate debtor have no vested right to bid for the property of the corporate debtor in liquidation. The values which animate Section 29A continue to provide sustenance to the rationale underlying the exclusion of the same category of persons from the process of liquidation involving the sale of assets, by virtue of the provisions of Section 35(1)(f). More recent precedents of this Court continue to adopt a purposive interpretation of the provisions of the IBC. (See in this context the judgments in Phoenix ARC Private Limited v. Spade Financial Service34 , Ramesh Kymal v. M/s Siemens Gamesa Renewable Power Pvt Ltd.35 and Anuj Jain, Interim Resolution Professional for Jaypee Infratech Limited v. 53 The purpose of the ineligibility under Section 29A is to achieve a sustainable revival and to ensure that a person who is the cause of the problem either by a design or a default cannot be a part of the process of solution. Section 29A, it must be noted, encompasses not only conduct in relation to the corporate debtor but in relation to other companies as well. This is evident from clause (c) (“an account of a corporate debtor under the management or control of such person or of whom such person is a promoter, classified as a non-performing asset”), and clauses (e), (f), (g), (h) and (i) which have widened the net beyond the conduct in relation to the corporate debtor. 54 The prohibition which has been enacted under Section 29A has extended, as noted above, to Chapter III while being incorporated in the proviso to Section 35(1)(f). Under the Liquidation Process Regulations, Chapter VI deals with the realization of assets. Regulation 32 is in the following terms: “32. Sale of Assets, etc. C.A. No. 4050 of 2020, decided on 9 February 2021, at paragraphs 23 and 25 (e) the corporate debtor as a going concern; or (f) the business(s) of the corporate debtor as a going concern: Provided that where an asset is subject to security interest, it shall not be sold under any of the clauses (a) to (f) unless the security interest therein has been relinquished to the liquidation estate.” Clauses (a) to (d) of Regulation 32 deal with the sale of assets on a stand-alone basis in a slump sale collectively or in parcels. Clauses (e) and (f) deal with the sale of the corporate debtor or its business as a going concern. “32A. Sale as a going concern. (1) Where the committee of creditors has recommended sale under clause (e) or (f) of regulation 32 or where the liquidator is of the opinion that sale under clause (e) or (f) of regulation 32 shall maximize the value of the corporate debtor, he shall endeavor to first sell under the said clauses.” Regulation 32-A(1) emphasizes the importance placed on the transfer of the corporate debtor or its business on a going concern basis. 56 Regulation 44 allows for a period of one year for the liquidation of the corporate debtor from the liquidation commencement date. Its proviso, however, allows for an additional period up to ninety days where the sale is attempted under sub-Regulation (1) of Regulation 32A. Regulation 44 is as follows: “44. Completion of liquidation. (1) The liquidator shall liquidate the corporate debtor within a period of one year from the liquidation commencement date, notwithstanding pendency of any application for avoidance of transactions under Chapter III of Part II of the Code, before the Adjudicating Authority or any action thereof: Provided that where the sale is attempted under sub- regulation (1) of regulation 32A, the liquidation process may take an additional period up to ninety days.] (2) If the liquidator fails to liquidate the corporate debtor within 29[one year], he shall make an application to the Adjudicating Authority to continue such liquidation, along with a report explaining why the liquidation has not been completed and specifying the additional time that shall be required for liquidation.” D.2 Interplay : IBC liquidation and Section 230 of the Act of 2013 57 Section 230 of the Act of 2013 is incorporated in Chapter XV which is titled “compromise, arrangement and amalgamations”. Sub-section (1) of Section 230 “230. Power to compromise or make arrangements with creditors and members.— (1) Where a compromise or (a) between a company and its creditors or any class of them; (b) between a company and its members or any class of them, the Tribunal may, on the application of the company or of any creditor or member of the company, or in the case of a company which is being wound up, of the liquidator, order a meeting of the creditors or class of creditors, or of the members or class of members, as the case may be, to be called, held and conducted in such manner as the Tribunal directs. Explanation.—For the purposes of this sub-section, arrangement includes a reorganization of the company‘s share capital by the consolidation of shares of different classes or by the division of shares into shares of different classes, or by both of those methods.” 58 A compromise or arrangement under Sub-section (1) of Section 230 may (i) between a company and its creditors or any subset of creditors; or (ii) between a company and its members or subset of members. 59 Liquidation is one of the factual situations in which the provisions of Section 230 can be invoked. Section 230(1) can also be invoked in the case of a company which is wound up, as is evident from the statutory provision itself, which contemplates that an application may be submitted to the NCLT, acting as the Tribunal, by the liquidator. 60 Sub-section (1) of Section 230 was amended by Act 31 of 2016 with effect from 15 November 2016. Prior to the amendment, an application for compromise or arrangement could be moved before the Tribunal by: (iv) in the case of a company which is being wound up, by the liquidator. Following the amendment, Section 230(1) envisages that an application in the case of a company which is being wound up may be presented by a liquidator who has been appointed under the Act of 2013 or under the IBC. Interestingly, Section 230 (except Sub-sections (11) and (12)) came into force on 7 December 2016. Where a compromise has been entered into with only a class of creditors, it will bind that class under the provisions of Section 230(6), which reads thus: “(6) Where, at a meeting held in pursuance of sub-section (1), majority of persons representing three fourths in value of the creditors, or class of creditors or members or class of members, as the case may be, voting in person or by proxy or by postal ballot, agree to any compromise or arrangement and if such compromise or arrangement is sanctioned by the Tribunal by an order, the same shall be binding on the company, all the creditors, or class of creditors or members or class of members, as the case may be, or, in case of a company being wound up, on the liquidator and the contributories of the company.” 61 Under Sub-section (6) of Section 230, the comprise or arrangement has to be agreed to by a "majority of persons representing 3/4th in value" of the creditors, members or a class of them. Upon the sanctioning of the compromise or arrangement by the NCLT, it binds the company, all the creditors or members or a class of them, as may be, or in the case of a company being wound up, the liquidator appointed under the Act of 2013 or the IBC and the contributories. The Companies’ Act 1956 : Section 391 and Meghal Homes 62 Prior to the enforcement of the Act of 2013, the erstwhile legislation - the Act of 1956 - contained an analogous provision in Section 391. 63 The provisions of Section 391 came up for interpretation in a decision of this Court in Meghal Homes (supra). Justice PK Balasubramanyan, speaking for the two judge Bench of this Court, adverted to the earlier decision in Miheer H Mafatlal v. Mafatlal Industries Ltd.37 which had dealt with the jurisdiction of the Company Court (or the Company Law Board as it then was) while sanctioning a scheme of merger or amalgamation of two companies. The earlier decision, as this Court noted, did not involve either a transferor or transferee in liquidation. Hence, this Court did not have occasion to consider whether "any additional tests have to be satisfied when the company concerned is in liquidation and a compromise or arrangement in respect of it is proposed". Dealing specifically with a company which has been ordered to be wound up, this Court observed that the Company Court (before whom the jurisdiction under the erstwhile Section 391 was vested at the material time) had “necessarily to see whether the scheme contemplates revival of the business of the company". In that context, this Court “47. When a company is ordered to be wound up, the assets of it are put in possession of the Official Liquidator. The assets become custodia legis. The follow-up, in the absence of a revival of the company, is the realisation of the assets of the company by the Official Liquidator and distribution of the proceeds to the creditors, workers and contributories of the company ultimately resulting in the death of the company by an order under Section 481 of the Act, being passed. But, nothing stands in the way of the Company Court, before the ultimate step is taken or before the assets are disposed of, to accept a scheme or proposal for revival of the Company. In that context, the court has necessarily to see whether the scheme contemplates revival of the business of the company, makes provisions for paying off creditors or for satisfying their claims as agreed to by them and for meeting the liability of the workers in terms of Section 529 and Section 529A of the Act. Of course, the court has to see to the bona fides of the scheme and to ensure that what is put forward is not a ruse to dispose of the assets of the company in liquidation.” Moreover, the Court held that in the case of a company which has been wound up it would have to perceive aspects of public interest, commercial morality and the existence of a bona fide intent to revive the company, while considering whether a compromise or arrangement put forward under Section 391 should be accepted. While the Court would not sit in appeal over the commercial wisdom of the shareholders, "it will certainly consider whether there is a genuine attempt to revive the company that has gone into liquidation and whether such revival is in public interest and conforms to commercial morality”. On the facts of the case, the Court found that it was difficult to hold that "it is a scheme for revival of the Company, the clear statutory intention behind entertaining a proposal under Section 391". These observations of the two judge Bench in Meghal Homes (supra) have a significant bearing on the nature of a compromise or arrangement which fell within the purview of Section 391 of the Act of 1956. This Court emphasized that where a company is in liquidation, its assets are custodia legis, the liquidator being the custodian for the distribution of the liquidation estate. A compromise or arrangement in respect of a company in liquidation must foster a revival of the company, this being (as the Court termed it ) "the clear statutory intention behind entertaining a proposal under Section 391” in respect of a company in liquidation. IBC liquidation and Section 230 scheme : a statutory continuum 64 Now, there is no reference in the body of the IBC to a scheme of compromise or arrangement under Section 230 of the Act of 2013. Sub-section (1) of Section 230 was however amended with effect from 15 November 2016 so as to allow for a scheme of compromise or arrangement being proposed on the application of a liquidator who has been appointed under the provisions of the IBC. The substratum of the submission of Mr Sandeep Bajaj, learned Counsel for the appellants, is that Section 230 is not regulated by the IBC but is a provision independent of it, though after the amendment of Sub-section (1), a compromise or arrangement can be proposed by the liquidator appointed under the IBC. Aligned to this submission, he urged that the decision in Meghal Homes (supra) recognises that the liquidator is an additional person who may submit an application under Section 391 of the Act of 1956 (corresponding to Section 230 of the Act of 2013). The submission of Mr Bajaj however misses the crucial interface between the provisions of Section 230 of the Act of 2013 in their engagement with a company in respect of which the provisions of the IBC have been invoked, resulting in an order of liquidation under Section 33 of the IBC. Liquidation of the company under the IBC, as emphasized by this Court in its previous decisions, is a matter of last resort. Section 33 requires the NCLT, acting as the Adjudicating Authority, to pass an order for the liquidation of the (i) before the expiry of the insolvency resolution process period or the maximum period contemplated for its completion a resolution plan has not been received under Sub-section (6) of Section 30; or (ii) the resolution plan has been rejected under Section 31 for non-compliance with the requirements of the provision. 65 Under Sub-Section (2) of Section 33, the Adjudicating Authority has to pass a liquidation order where the resolution professional, during the CIRP but before the confirmation of the resolution plan, intimates the Adjudicating Authority of the decision of the CoC approved by not less than 66 per cent of the voting shares to liquidate the corporate debtor. Under Section 34, upon the Adjudication Authority passing an order for liquidation of the corporate debtor under Section 33, the resolution professional appointed for the CIRP under Chapter II is to act as a liquidator for the purpose of liquidation. Section 35 proceeds to stipulate that subject to the directions of the Adjudicating Authority, the liquidator shall have the powers and duties enumerated in the provision. 66 What emerges from the above discussion is that the provisions of the IBC contain a comprehensive scheme, first, for the initiation of the CIRP at the behest of financial creditor under Section 7 or at the behest of the operational creditor under Section 9 or the corporate debtor under Section 10. Chapter II provides for the appointment of an interim resolution professional38 in Section 17 and the constitution of a CoC under Section 21. Chapter II contemplates the submission of a resolution plan in Section 30 and the approval of the plan in Section 31. Liquidation forms a part of a distinct Chapter - Chapter III. Liquidation under Section 33 is contemplated in specific eventualities which are adverted to in Sub- Section (1) and Sub-section (2) as noted above. 67 Now, it is in this backdrop that it becomes necessary to revisit, in the context of the above discussion the three modes in which a revival is contemplated under the provisions of the IBC. The first of those modes of revival is in the form of the CIRP elucidated in the provisions of Chapter II of the IBC. The second mode is where the corporate debtor or its business is sold as a going concern within the purview of clauses (e) and (f) of Regulation 32. The third is when a revival is contemplated through the modalities provided in Section 230 of the Act of 2013. A scheme of compromise or arrangement under Section 230, in the context of a company which is in liquidation under the IBC, follows upon an order under Section 33 and the appointment of a liquidator under Section 34. While there is no direct recognition of the provisions of Section 230 of the Act of 2013 in the IBC, a decision was rendered by the NCLAT on 27 February 2019 in Y Shivram Prasad v. S Dhanapal39. NCLAT in the course of its decision observed that during the liquidation process the steps which are required to be taken by the liquidator include a compromise or arrangement in terms of Section 230 of the Act of 2013, so as to ensure the revival and continuance of the corporate debtor by protecting it from its management and from "a death by liquidation". The decision by NCLAT took note of the fact that while passing the order under Section 230, the Adjudicating Authority would perform a dual role: one as the Adjudicating Authority in the matter of liquidation under the IBC and the other as a Tribunal for passing an order under Section 230 of the Act of 2013. Following the decision of NCLAT, an amendment was made on 25 July 2019 to the Liquidation Process Regulations by the IBBI so as to refer to the process envisaged under Section 230 of the Act of 2013. 68 The statutory scheme underlying the IBC and the legislative history of its linkage with Section 230 of the Act of 2013, in the context of a company which is in liquidation, has important consequences for the outcome of the controversy in the present case. The first point is that a liquidation under Chapter III of the IBC follows upon the entire gamut of proceedings contemplated under that statute. The second point to be noted is that one of the modes of revival in the course of the liquidation process is envisaged in the enabling provisions of Section 230 of the Act of 2013, to which recourse can be taken by the liquidator appointed under Section 34 of the IBC. The third point is that the statutorily contemplated 2019 SCC OnLine NCLAT 172; herein, referred to as “Y Shivram Prasad” activities of the liquidator do not cease while inviting a scheme of compromise or arrangement under Section 230. The appointment of the liquidator in an IBC liquidation is provided in Section 34 and their duties are specified in Section 35. In taking recourse to the provisions of Section 230 of the Act of 2013, the liquidator appointed under the IBC is , above all, to attempt a revival of the corporate debtor so as to save it from the prospect of a corporate death. The consequence of the approval of the scheme of revival or compromise, and its sanction thereafter by the Tribunal under Sub-section (6), is that the scheme attains a binding character upon stakeholders including the liquidator who has been appointed under the IBC. In this backdrop, it is difficult to accept the submission of Mr Bajaj that Section 230 of the Act of 2013 is a standalone provision which has no connect with the provisions of the IBC. Undoubtedly, Section 230 of the Act of 2013 is wider in its ambit in the sense that it is not confined only to a company in liquidation or to corporate debtor which is being wound up under Chapter III of the IBC. Obviously, therefore, the rigors of the IBC will not apply to proceedings under Section 230 of the Act of 2013 where the scheme of compromise or arrangement proposed is in relation to an entity which is not the subject of a proceeding under the IBC. But, when, as in the present case, the process of invoking the provisions of Section 230 of the Act of 2013 traces its origin or, as it may be described, the trigger to the liquidation proceedings which have been initiated under the IBC, it becomes necessary to read both sets of provisions in harmony. A harmonious construction between the two statutes40 would ensure that while on the one hand a scheme of compromise G.P. Singh, Principles of Statutory Interpretation (1 edn., Lexis Nexis 2015) which notes that “Further, these or arrangement under Section 230 is being pursued, this takes place in a manner which is consistent with the underlying principles of the IBC because the scheme is proposed in respect of an entity which is undergoing liquidation under Chapter III of the IBC. As such, the company has to be protected from its management and a corporate death. It would lead to a manifest absurdity if the very persons who are ineligible for submitting a resolution plan, participating in the sale of assets of the company in liquidation or participating in the sale of the corporate debtor as a ‘going concern’, are somehow permitted to propose a compromise or arrangement under Section 230 of the Act of 2013. 69 The IBC has made a provision for ineligibility under Section 29A which operates during the course of the CIRP. A similar provision is engrafted in Section 35(1)(f) which forms a part of the liquidation provisions contained in Chapter III as well. In the context of the statutory linkage provided by the provisions of Section 230 of the Act of 2013 with Chapter III of the IBC, where a scheme is proposed of a company which is in liquidation under the IBC, it would be far-fetched to hold that the ineligibilities which attach under Section 35(1)(f) read with Section 29A would not apply when Section 230 is sought to be invoked. principles [referring to the principle of harmonious construction] have also been applied in resolving a conflict between two different Acts” and providing the following examples – “Jogendra Lal Saha v. State of Bihar, 1991 Supp (2) SCC 654 (Sections 82 and 83 of the Forest Act, 1927 are special provisions which prevail over the provisions in the Sale of Goods Act ); Jasbir Singh v. Vipin Kumar Jaggi, (2001) 8 SCC 289 (Section 64 of NDPS Act will prevail over section 307 CrPC 1974 as it is a special provision in a Special Act which is also later); P.V. Hemlatha v. Kattam Kandi Puthiya Maliackal Saheeda, (2002) 5 SCC 548 (conflict between section 23 of the Travancore Cochin High Court Act and section 98(3) Civil Procedure Code resolved by holding the latter to be special law); Talchar Municipality v. Talcher Regulated Market Committee, (2004) 6 SCC 178 (Section 4(4) of the Orissa Agricultural Produce Markets Act, 1956 was held to prevail over section 295 of the Orissa Municipalities Act, 1950 as the former was a special provision and also started with a non-obstante clause); and Iridium India Telecom Ltd. v. Motorola Inc, (2005) 2 SCC 145 (Letters Patent and rules made under it constitute special law for the High Court concerned and are not displaced by the general provisions of the Civil Such an interpretation would result in defeating the provisions of the IBC and must be eschewed. 70 An argument has also been advanced by the appellants and the petitioners that attaching the ineligibilities under Section 29A and Section 35(1)(f) of the IBC to a scheme of compromise and arrangement under Section 230 of the Act of 2013 would be violative of Article 14 of the Constitution as the appellant would be “deemed ineligible” to submit a proposal under Section 230 of the Act of 2013. We find no merit in this contention. As explained above, the stages of submitting a resolution plan, selling assets of a company in liquidation and selling the company as a going concern during liquidation, all indicate that the promoter or those in the management of the company must not be allowed a back-door entry in the company and are hence, ineligible to participate during these stages. Proposing a scheme of compromise or arrangement under Section 230 of the Act of 2013, while the company is undergoing liquidation under the provisions of the IBC lies in a similar continuum. Thus, the prohibitions that apply in the former situations must naturally also attach to the latter to ensure that like situations are treated equally. 71 A crucial limb of the submissions which have been urged by Mr Sandeep Bajaj and Mr Shiv Shankar Banerjee, learned Counsel appearing for the appellants and the petitioner is that both Section 12-A of the IBC and Section 230 of the Act of 2013 belong to what is described as the “settlement mechanism” which is distinct from the “resolution mechanism”. The corporate debtor, it has been urged, will proceed to liquidation if no resolution is possible. Section 29A was designed to prevent a back-door entry to a class of persons considered to be ineligible to participate in the resolution process. Section 35(1)(f) extends the ineligibility where the liquidator is conducting a sale of the assets of the corporate debtor in liquidation. It has been submitted in this context that where an application for withdrawal under Section 12-A is allowed, the company reverts to the promoter. Placing a scheme under Section 230 of the Act of 2013 on the same pedestal, it has been urged that there is no reason to prevent a person who falls in the class of those ineligible under Section 29A from submitting a scheme of compromise or arrangement under Section 230 of the Act of 2013. In order to amplify the line of submissions as recorded above, the following points have (i) Though eight amendments have been brought about to the IBC between November 2017 and September 2020, the ineligibility contemplated by Section 29A and Section 35(1)(f) has not been expressly incorporated in Section 230 of the Act of 2013 even after the amendment to the IBC; (ii) Under Section 230, the persons competent to submit a scheme are (c) a member. Section 230 does not prohibit a promoter or a person belonging to the ex- management, from proposing a scheme of compromise or arrangement. This creates a “front door opportunity” to the erstwhile management to (iii) Under Section 30(1) of the IBC, a resolution plan can be submitted by a person who is not ineligible with reference to Section 29A. Under Sub- section (4) of Section 30, for the approval of the resolution plan, a 66 per cent voting share only of the financial creditors is required. Sub-section 2(b) of Section 30 requires the resolution professional to examine whether the resolution plan provides for the payment of the debt of operational creditors which shall not be less than the amount which is payable to them in the event of liquidation. On the other hand, the provisions of Section 230 of the Act of 2013 are far more stringent in that they require a voting share of 75 per cent and, where the company is in liquidation, a settlement with all creditors including the operational creditors; (iv) Section 35(1)(f) applies to the liquidator but does not apply to the NCLT, acting as either the Adjudicating Authority or as the Tribunal; (v) A resolution plan upon being approved becomes binding on all stakeholders and is attended with all benefits unlike Section 230 of the Act (vi) Under Regulation 32 of the Liquidation Process Regulations, two modes are contemplated for the sale of the corporate debtor as a ‘going concern’, while four modes are contemplated for the sale of the assets of the corporate debtor. The prohibition under Section 35(1)(f) will apply only to a sale which is governed by Regulation 32, and will have no application to a scheme of compromise or arrangement which is proposed under Section (vii) There is no mechanism in the IBC for effecting a compromise or arrangement, and since the only provision is contained in Section 230, there is no inconsistency with the IBC. 72 Section 12A41 of the IBC was inserted with effect from 6 June 2018 by Amending Act 26 of 2018. Under Section 12A, the Adjudicating Authority may allow the withdrawal of an application which is admitted under Sections 7, 9 and 10, on an application made by the applicant with the approval of a 90 per cent voting share of the CoC in such manner as may be specified. Rule 8 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 201642, on the other hand, contemplates that the NCLT, functioning as the Adjudicating Authority, may permit a withdrawal of an application made under Rule 4 (by the financial creditor), Rule 6 (by the operational creditor) or Rule 7 (by the corporate applicant) on the request made by the applicant before its admission. Regulation 30-A of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 contains provisions for the withdrawal of an application. Under Regulation 30-A43, as it originally stood, an “12A. Withdrawal of application admitted under section 7, 9 or 10 - The Adjudicating Authority may allow the withdrawal of application admitted under section 7 or section 9 or section 10, on an application made by the applicant with the approval of ninety per cent. voting share of the committee of creditors, in such manner as may be specified.” “30A. Withdrawal of Application- (1) An application for withdrawal under section 12A shall be submitted to the interim resolution professional or the resolution professional, as the case may be, in Form FA of the Schedule before issue of invitation for expression of interest under regulation 36A. application for withdrawal under Section 12-A was required to be submitted before the issuance of an invitation for the expression of interest under Regulation 36-A. In the decision of this Court in Swiss Ribbons (supra), which was rendered on 25 January 2019, it was contemplated that an application for withdrawal may be presented between the period commencing from the admission of the application and the date of the constitution of the CoC. This led to the substitution of the Regulation 30-A44 on 25 July 2019. As substituted, Regulation 30-A stipulates that an application for withdrawal under Section 12-A (2) The application in sub-regulation (1) shall be accompanied by a bank guarantee towards estimated cost incurred for purposes of clauses (c) and (d) of regulation 31 till the date of application. (3) The committee shall consider the application made under sub-regulation (1) within seven days of its constitution or seven days of receipt of the application, whichever is later. (4) Where the application is approved by the committee with ninety percent voting share, the resolution professional shall submit the application under sub-regulation (1) to the Adjudicating Authority on behalf of the applicant, within three days of such approval. (5) The Adjudicating Authority may, by order, approve the application submitted under sub-regulation (4).” “30A. Withdrawal of Application- (1) An application for withdrawal under section 12A may be made to the (a) before the constitution of the committee, by the applicant through the interim resolution professional; (b) after the constitution of the committee, by the applicant through the interim resolution professional or the resolution professional, as the case may be: Provided that where the application is made under clause (b) after the issue of invitation for expression of interest under regulation 36A, the applicant shall state the reasons justifying withdrawal after issue of such invitation. (2) The application under sub-regulation (1) shall be made in Form FA of the Schedule accompanied by a bank (a) towards estimated expenses incurred on or by the interim resolution professional for purposes of regulation 33, till the date of filing of the application under clause (a) of sub-regulation (1); or (b) towards estimated expenses incurred for purposes of clauses (aa), (ab), (c) and (d) of regulation 31, till the date of filing of the application under clause (b) of sub-regulation (1). (3) Where an application for withdrawal is under clause (a) of sub-regulation (1), the interim resolution professional shall submit the application to the Adjudicating Authority on behalf of the applicant, within three days of its receipt. (4) Where an application for withdrawal is under clause (b) of sub-regulation (1), the committee shall consider the application, within seven days of its receipt. (5) Where the application referred to in sub-regulation (4) is approved by the committee with ninety percent voting share, the resolution professional shall submit such application along with the approval of the committee, to the Adjudicating Authority on behalf of the applicant, within three days of such approval. (6) The Adjudicating Authority may, by order, approve the application submitted under sub-regulation (3) or (5). (7) Where the application is approved under sub-regulation (6), the applicant shall deposit an amount, towards the actual expenses incurred for the purposes referred to in clause (a) or clause (b) of sub-regulation (2) till the date of approval by the Adjudicating Authority, as determined by the interim resolution professional or resolution professional, as the case may be, within three days of such approval, in the bank account of the corporate debtor, failing which the bank guarantee received under sub-regulation (2) shall be invoked, without prejudice to any other action permissible against the applicant under the Code.” (a) before the constitution of the CoC, by the applicant through the IRP; (b) after the constitution of the CoC, by the applicant through the IRP or the RP as the case may be. However, where the application under clause (b) is made after the issuance of the invitation for expression of interest, the applicant has to state the reasons justifying withdrawal after the issuance of the invitation. In the decision of this Court in Brilliant Alloys (supra), it has been held that a withdrawal may be contemplated even after the issuance of invitation of expression of interest. In Swiss Ribbons (supra), the provisions of Section 12-A were upheld against the challenge that they violated Article 14 of the Constitution. Justice Rohinton F Nariman, while adverting to the decision in Brilliant Alloys (supra), noted that Regulation 30-A(1) has been held not to be mandatory but directory because in a given case an application for withdrawal may be allowed for exceptional reasons even after issuance of an invitation for expression of interest under Section 36-A. Dealing with the provisions of Section 12-A, this Court “82. It is clear that once the Code gets triggered by admission of a creditor's petition under Sections 7 to 9, the proceeding that is before the adjudicating authority, being a collective proceeding, is a proceeding in rem. Being a proceeding in rem, it is necessary that the body which is to oversee the resolution process must be consulted before any individual corporate debtor is allowed to settle its claim.· A question arises as to what is to happen before a Committee of Creditors is constituted (as per the timelines that are specified, a Committee of Creditors can be appointed at any time within 30 days from the date of appointment of the interim resolution professional). We make it clear that at any stage where the Committee of Creditors is not yet constituted, a party can approach NCLT directly, which Tribunal may, in exercise of its inherent powers under Rule 11 of NCLT Rules, 2016, allow or disallow an application for withdrawal or settlement. This will be decided after hearing all the parties concerned and considering all relevant factors on the facts of each case. 83. The main thrust against the provision of Section 12-A is the fact that ninety per cent of the Committee of Creditors has to allow withdrawal. This high threshold has been explained in the ILC Report as all financial creditors have to put their heads together to allow such withdrawal as, ordinarily, an omnibus settlement involving all creditors ought, ideally, to be entered into . This explains why ninety per cent, which is substantially all the financial creditors, have to grant their approval to an individual withdrawal or settlement. In any case, the figure of ninety per cent, in the absence of anything further to show that it is arbitrary, must pertain to the domain of legislative policy, which has been explained by the Report (supra). Also, it is clear, that under Section 60 of the Code, the Committee of Creditors do not have the last word on the subject. If the Committee of Creditors arbitrarily rejects a just settlement and/or withdrawal claim, NCLT, and thereafter, NCLAT can always set aside such decision under Section 60 of the Code. For all these reasons, we are of the view that Section 12-A also passes constitutional muster.” Distinction between a withdrawal simpliciter and scheme of 73 The submission is that on the withdrawal of the application under Sections 7, 9 and 10, as the case may be, the company goes back to the same promoter in spite of such a promoter being ineligible under Section 29A for submitting a resolution plan. As such, it was urged that there is no reason or justification then to preclude a promoter from presenting a scheme of compromise or arrangement under Section 230. 74 There is a fundamental fallacy in the submission. An application for withdrawal under Section 12-A is not intended to be a culmination of the resolution process. This, as the statutory scheme would indicate, is at the inception of the process. Rule 8 of the Adjudicating Authority Rules, as we have seen earlier, contemplates a withdrawal before admission. Section 12-A subjects a withdrawal of an application, which has been admitted under Sections 7, 9 and 10, to the requirement of an approval of ninety per cent voting shares of the CoC. The decision of this Court in Swiss Ribbons (para 82 extracted above) stipulates that where the CoC has not yet been constituted, the NCLT, functioning as the Adjudicating Authority, may be moved directly for withdrawal which, in the exercise of its inherent powers under Rule 11 of the Adjudicating Authority Rules, may allow or disallow the application for withdrawal or settlement after hearing the parties and considering the relevant factors on the facts of each case. A withdrawal in other words is by the applicant. The withdrawal leads to a status quo ante in respect of the liabilities of the corporate debtor. A withdrawal under Section 12-A is in the nature of settlement, which has to be distinguished both from a resolution plan which is approved under Section 31 and a scheme which is sanctioned under Section 230 of the Act of 2013. A resolution plan upon approval under Section 31(1) of the IBC is binding on the corporate debtor, its employees, members, creditors (including the central and state governments), local authorities, guarantors and other stakeholders. The approval of a resolution plan under Section 31 results in a “clean slate,” as held in the judgment of this Court in Committee of Creditors of Essar Steel India Limited v. Satish Kumar Gupta45. Justice Rohinton F Nariman, speaking for the three judge Bench of this “105. Section 31(1) of the Code makes it clear that once a resolution plan is approved by the Committee of Creditors it shall be binding on all stakeholders, including guarantors. This is for the reason that this provision ensures that the successful resolution applicant starts running the business of the corporate debtor on a fresh slate as it were. In SBI v. V. Ramakrishnan [SBI v. V. Ramakrishnan, (2018) 17 SCC 394 : (2019) 2 SCC (Civ) 458] , this Court relying upon Section 31 “25. Section 31 of the Act was also strongly relied upon by the respondents. This section only states that once a resolution plan, as approved by the Committee of Creditors, takes effect, it shall be binding on the corporate debtor as well as the guarantor. This is for the reason that otherwise, under Section 133 of the Contract Act, 1872, any change made to the debt owed by the corporate debtor, without the surety's consent, would relieve the guarantor from payment. Section 31(1), in fact, makes it clear that the guarantor cannot escape payment as the resolution plan, which has been approved, may well include provisions as to payments to be made by such guarantor. This is perhaps the reason that Annexure VI(e) to Form 6 contained in the Rules and Regulation 36(2) referred to above, require information as to personal guarantees that have been given in relation to the debts of the corporate debtor. Far from supporting the stand of the respondents, it is clear that in point of fact, Section 31 is one more factor in favour of a personal guarantor having to pay for debts due without any moratorium applying to save him.”” “107. For the same reason, the impugned NCLAT judgment [Standard Chartered Bank v. Satish Kumar Gupta, 2019 SCC OnLine NCLAT 388] in holding that claims that may exist apart from those decided on merits by the resolution professional and by the Adjudicating Authority/Appellate Tribunal can now be decided by an appropriate forum in terms of Section 60(6) of the Code, also militates against the rationale of Section 31 of the Code. A successful resolution applicant cannot suddenly be faced with “undecided” claims after the resolution plan submitted by him has been accepted as this would amount to a hydra head popping up which would throw into uncertainty amounts payable by a prospective resolution applicant who would successfully take over the business of the corporate debtor. All claims must be submitted to and decided by the resolution professional so that a prospective resolution applicant knows exactly what has to be paid in order that it may then take over and run the business of the corporate debtor. This the successful resolution applicant does on a fresh slate, as has been reasons, NCLAT judgment must also be set aside on this count.” 75 The benefit under Section 31, following upon the approval of the resolution plan, is that the successful resolution applicant starts running the business of the corporate debtor on “a fresh slate”. The scheme of compromise or arrangement under Section 230 of the Act of 2013 cannot certainly be equated with a withdrawal simpliciter of an application, as is contemplated under Section 12-A of the IBC. A scheme of compromise or arrangement, upon receiving sanction under Sub-section (6) of Section 230, binds the company, its creditors and members or a class of persons or creditors as the case may be as well as the liquidator (appointed under the Act of 2013 or the IBC). Both, the resolution plan upon being approved under Section 31 of the IBC and a scheme of compromise or arrangement upon being sanctioned under Sub-section (6) of Section 230, represent the culmination of the process. This must be distinguished from a mere withdrawal of an application under Section 12-A. There is a clear distinction between these processes, in terms of statutory context and its consequences and the latter cannot be equated with the former. 76 Additionally, there is no merit in the submission that Section 35(1)(f) applies only to a liquidator who conducts a sale of the property of the corporate debtor in liquidation but not to the NLCT, acting as the Tribunal, when it exercises its powers under Section 230 of the Act of 2013. The liquidator appointed under the provisions of Chapter III of the IBC is entrusted with several powers and duties. Sections 37 to 42 of the IBC are illustrative of the powers of the liquidator in the course of the liquidation. The liquidator exercises several functions which are of a quasi-judicial in nature and character. Section 35(1) itself enunciates that the powers and duties which are entrusted to the liquidator are “subject to the directions of the adjudicating authority”. The liquidator, in other words, exercises functions which have been made amenable to the jurisdiction of the NCLT, acting as the Adjudicating Authority. To hold therefore that the ineligibility prescribed under the provisions of Section 35(1)(f) can be disregarded by the Tribunal for the purpose of considering an application for a scheme of compromise or arrangement under Section 230 of the Act of 2013, in respect of a company which is under liquidation under the IBC, would not be a correct construction of the provisions of law. D.4 Constitutional validity of Regulation 2B - Liquidation Process 77 Regulation 2B(1) introduced on 25 July 2019 provides that where a compromise or arrangement is proposed under Section 230 of the Act of 2013, it shall be completed within ninety days of the order of liquidation under sub- Sections (1) and (4) of Section 33. The proviso to Regulation 2B has been inserted with effect from 6 January 2020 to stipulate that a person who is not eligible under the IBC to submit a resolution plan for insolvency resolution of the corporate debtor shall not be a party in any manner to such compromise or arrangement. 78 IBBI initially brought out a discussion paper on 27 April 2019. Para 3.1 of “3.1 Compromise or arrangement under Section 230 of the Companies Act 2013. If there is a proposal for a compromise or arrangement, a member, a creditor or the Liquidator may make an application to the NCLT under the Compromise Act 2013 (Act) (not the Adjudicating Authority under the Code) and then proceed in the manner directed by the NCTL in accordance with the Act. While compromise or arrangement under Section 230 of the Act is proposed, it must be utilize first and only on its closure/ failure, liquidation under the Code may commence. The Code read with regulations may provide that where a credible proposal is made to the Liquidator under Section 230 of the Act for compromise or arrangement of the CD within seven days of the order under Section 33 of the Code for liquidation, the Liquidator shall file an application under the said section within ten days of the order of liquidation under Section 33 of the Code. A member or a creditor may file an application under Section 230 of the Act within 10 days of the order of liquidation. If approved by the NCLT, the Liquidator shall complete the process under Section 230 within 90 days of the order of liquidation. The Regulations may provide that liquidation process under the Coe shall commence at the earlier of the four events: (a) there is no proposal for compromise or arrangement (b) the NCLT does not approve the application under (c) the process under Section 230 is not completed within 90 days or such extended period as may be allowed by the (d) the process under Section 230 is not sanctioned under Section 230(6) of the Act. A tight time schedule is necessary for conclusion of the process for compromise or arrangement to ensure that the liquidation process is concluded without undue delay.” 79 IBBI noted in its discussion paper that the introduction of ineligibilities stipulated under Section 29-A of the IBC to Section 230 of the Act of 2013 would pose practical difficulties in its implementation. IBBI observed: “3.3.3 Ineligibility: Proviso to section 35(1)(f) of the Code mandates that the Liquidator shall not sell the immovable and movable property or actionable claims of the CD in liquidation to any person who is not eligible to be a resolution applicant. This prohibits GCS to persons ineligible under section 29A. However, the law does not prohibit such ineligible persons to participate in compromise or arrangement under section 230 of the Act. It may be necessary to harmonise the provisions in the Code and the Act to provide level playing field. Some stakeholders feel that the ineligibility norms under section 29A of the Code may also apply to compromise or arrangement under section 230 of the Act. Other stakeholders feel that unlike liquidation under the Code, which is mostly Liquidator driven, the compromise or arrangement under the Act is mostly driven by the Tribunal. Further, section 29A of the Code has several exceptions, while section 230 of the Act deals with all kinds of companies in all situations. There will be practical difficulties in implementation of ineligibility for the purposes of section 230 of the Act. Therefore, it is proposed that the ineligibility norms under section 29A of the Code may not apply to compromise or arrangement under section 230 of the Act.” Be that as it may, the IBBI solicited public comments on its proposals. The IBBI evolved its view on the issue of whether Section 29-A should be made applicable to Section 230 of the Act of 2013 in its subsequent discussion paper. 80 The discussion paper brought out on 3 November 2019 by IBBI discussed the applicability of Section 29A of the IBC to a compromise and arrangement under Section 230 of the Act of 2013. The discussion paper notes that there were many instances where the NCLAT had allowed the application under Section 230 of the Act of 2013. In that context, the discussion paper notes thus: “21. Section 29 A of the Code prohibits certain persons from becoming a resolution applicant/ submitting a resolution plan in a CIRP. Proviso to section 35(1)(f) of the Code mandates that a Liquidator shall not sell the immoveable and moveable property or actionable claims of the CD in liquidation to any person who is not eligible to be a resolution applicant. These provisions were inserted in the Code with effect from 23rd November, 2017, while section 230 of the Act was amended along with the enactment of the Code. There is no explicit prohibition on persons ineligible to submit resolution plans under section 29A from proposing compromise or arrangement made under Section 230 of the Act, which may result in person ineligible under section 29A acquiring control of the CD. Thus, while section 29A of the Code is applicable to a CD when it is under CIRP and when it is under Liquidation Process, it is not applicable to the same CD when it is undergoing compromise or arrangement, in between CIR process and liquidation process. This has created an anomaly that section 29A is applicable during the stage before and the stage after compromise and arrangement and not during compromise and arrangement. 22. Section 29A of the Code keeps out a person, who is a wilfull defaulter, who has an account with non-performing assets for a long period, etc. and therefore, is likely to be a risk to a successful resolution of insolvency of a company. This rationale equally applies to the stage of compromise or arrangement. Non-applicability of section 29A at the stage of compromise or arrangement may undermine the process and may reward unscrupulous persons at the expense of creditors. Thus, it may be necessary to harmonise the provisions in the Code and the Act to provide level playing field.” 81 The discussion paper also notes that it was necessary to have a discussion on the following amongst other issues: “f. Should the persons ineligible under section 29A of the Code to be a resolution applicant be barred from becoming a party in compromise or arrangements under section 230 of g. Or, should applicability of section 230 of the companies act, 2013 during liquidation process under the Coe be reviewed?” 82 Thereafter, public comments were invited. The discussion paper is what it professes to be – a matter for discussion in the public realm. This cannot be held to constitute an admission of IBBI that an applicant who is ineligible under Section 29A may submit a scheme of compromise or arrangement under Section 230 of the Act of 2013. The validity of the provisions of Regulation 2B, more specifically the proviso, has to be considered on their own footing. 83 The powers and functions entrusted to IBBI are specified in Section 196 of the IBC. Section 196(1)(t) provides IBBI with the power to frame regulations, as “(t) make regulations and guidelines on matters relating to insolvency and bankruptcy as may be required under this Code, including mechanism for time bound disposal of the assets of the corporate debtor or debtor; and” Clause (t) empowers IBBI to make regulations and guidelines on matters relating to insolvency and bankruptcy, as may be required under the IBC. Section 240(1) empowers IBBI with the power to make regulations in the “(1) The Board may, by notification, make regulations consistent with this Code and the rules made thereunder, to carry out the provisions of this Code.” Under Sub-Section (1) of Section 240, the power to frame regulations is conditioned by two requirements: first, the regulations have to be consistent with the provisions of the IBC and the rules framed by the Central Government; and second, the regulations must be to carry out the provisions of the IBC. Regulation 2B meets both the requirements, of being consistent with the provisions of IBC and of being made in order to carry out the provisions of the IBC, for the reasons discussed earlier in this judgment. 84 The principal ground of challenge to Regulation 2B is that the regulation transgressed the authority of IBBI by introducing a disqualification or ineligibility in regard to the presentation of an application for a scheme of compromise or arrangement under Section 230 of the Act of 2013. It has been urged that IBBI, as an entity constituted by the IBC, had no statutory jurisdiction to amend the provisions of Section 230 of the Act of 2013 or to impose a restriction which operates under the purview of Section 230. The position in our view can be considered from two perspectives, independent of the provisions of Regulation 2B. We have indicated in the discussion earlier that even in the absence of the Regulation 2B, a person ineligible under Section 29A read with Section 35(1)(f) is not permitted to propose a scheme for revival under Section 230, in the case of a company which is undergoing a liquidation under the IBC. We have come to the conclusion, as noted for the reasons indicated earlier, that in the case of a company which is undergoing liquidation pursuant to the provisions of Chapter III of the IBC, a scheme of compromise or arrangement proposed under Section 230 is a facet of the liquidation process. The object of the scheme of compromise or arrangement is to revive the company. The principle was enunciated in the decision in Meghal Homes (supra) while construing the provisions of erstwhile Section 391. The same rationale which permeates the resolution process under Chapter II (by virtue of the provisions of Section 29A) permeates the liquidation process under Chapter III (by virtue of the provisions of Section 35(1)(f)). That being the position, there can be no manner of doubt that the proviso to Regulation 2B is clarificatory in nature. Even absent the proviso, a person who is ineligible under Section 29A would not be permitted to propose a compromise or arrangement under Section 230 of the Act of 2013. We therefore do not find any merit in the challenge to the validity of Regulation 2B. 85 In paragraph 24 of our judgment, we noted the two issues which had been framed by the NCLAT in the impugned judgment in the first of the appeals. The first issue was “Whether in a liquidation proceeding under [IBC] the Scheme for Compromise and Arrangement can be made in terms of Sections 230 to 232 of the [Act of 2013]”. While we noted in paragraph 25, that no challenge has been made by the appellant in regard to the finding of the NCLAT on this issue, it is imperative for us to make some remarks in relation to this issue and the larger issue of judicial intervention by the NCLT and NCLAT while adjudicating disputes under the IBC. 86 To begin with, we would like to take note of the observations made by the Insolvency Law Committee in its Report of February 202046. The Committee began by acknowledging that the floating of schemes of compromise or arrangement under Sections 230 to 232 of the Act, even for companies undergoing liquidation, was not part of the framework under the IBC. This, the Committee noted, had led to a multiplicity of issues including, but not limited to, the duality of the role of the NCLT (as a supervisory Adjudicatory Authority under the IBC versus the driving Tribunal under the Act of 2013) and indeed the very question before us in this case, whether the disqualification under Section 29A and proviso to Section 35(1)(f) of the IBC also attaches to Section 230 of the Act of 2013. However, the Committee notes that judicial intervention by the NCLAT along with the IBBI’s introduction of new regulations have led to some alignment in the two frameworks. 87 The Committee thereafter notes that the introduction of such schemes into the framework of the IBC may be worrisome since it will alter the incentives during the CIRP and lead to destructive delays, which often plagued the process under the Sick Industrial Companies (Special Provisions) Act, 1985.47 However, it Available at <https://ibbi.gov.in/uploads/resources/c6cb71c9f69f66858830630da08e45b4.pdf> accessed on 10 Ibid, at para 4.5. nonetheless also acknowledges the benefits such schemes may have to offer48. Even so, the Committee concludes by noting that such schemes, if at all they are to be brought in, should not be under the Act of 2013 but the IBC itself. The “4.6…However, the Committee was of the view that such a process for compromise or settlement need not be effected only through the schemes mechanism under the Companies Act, 2013, and felt that the liquidator could be given the power to effect a compromise or settlement with specific creditors with respect to their claims against the corporate debtor under the Code. 4.7 Given the incompatibility of schemes of arrangement and the liquidation process, the Committee recommended that recourse to Section 230 of the Companies Act, 2013 for effecting schemes of arrangement or compromise should not be available during liquidation of the corporate debtor under the Code. However, the Committee felt that an appropriate process to allow the liquidator to effect a compromise or settlement with specific creditors should be devised under the Code.” 88 Due to the ambiguity in the application of the two frameworks, it became imperative that a clarification be issued in this regard. The introduction of the proviso to Regulation 2B was a step in this direction which sought to clarify the position with respect to the applicability of the disqualifications set out in Section 29A of the IBC to Section 230 of the Act of 2013 in tandem with the legislative intendment. Ibid, para 4.6; In the Indian context, see Umakanth Varottil, ‘The Scheme of Arrangement as a Debt Restructuring Tool in India: Problems and Prospects’ (March 2017) NUS Working Paper 2017/005 available at 89 At this juncture, it is important to remember that the explicit recognition of the schemes under Section 230 into the liquidation process under the IBC was through the judicial intervention of the NCLAT in Y Shivram Prasad (supra). Since the efficacy of this arrangement is not challenged before us in this case, we cannot comment on its merits. However, we do take this opportunity to offer a note of caution for the NCLT and NCLAT, functioning as the Adjudicatory Authority and Appellate Authority under the IBC respectively, from judicially interfering in the framework envisaged under the IBC. As we have noted earlier in the judgment, the IBC was introduced in order to overhaul the insolvency and bankruptcy regime in India. As such, it is a carefully considered and well thought out piece of legislation which sought to shed away the practices of the past. The legislature has also been working hard to ensure that the efficacy of this legislation remains robust by constantly amending it based on its experience. Consequently, the need for judicial intervention or innovation from the NCLT and NCLAT should be kept at its bare minimum and should not disturb the foundational principles of the IBC. This conscious shift in their role has been noted in the report of the Bankruptcy Law Reforms Committee (2015) in the “An adjudicating authority ensures adherence to the At all points, the adherence to the process and compliance with all applicable laws is controlled by the adjudicating authority. The adjudicating authority gives powers to the insolvency professional to take appropriate action against the directors and management of the entity, with recommendations from the creditors committee. All material actions and events during the process are recorded at the adjudicating authority. The adjudicating authority can assess and penalise frivolous applications. The adjudicator hears allegations of violations and fraud while the process is on. The adjudicating authority will adjudicate on fraud, particularly during the process resolving bankruptcy. Appeals/actions against the behaviour of the insolvency professional are directed to the Regulator/Adjudicator.” 90 Once again, we must clarify that our observations here are not on the merits of the issue, which has not been challenged before us, but only limited to serve as guiding principles to the benches of NCLT and NCLAT adjudicating disputes under the IBC, going forward. 91 Based on the above analysis, we find that the prohibition placed by the Parliament in Section 29A and Section 35(1)(f) of the IBC must also attach itself to a scheme of compromise or arrangement under Section 230 of the Act of 2013, when the company is undergoing liquidation under the auspices of the IBC. As such, Regulation 2B of the Liquidation Process Regulations, specifically the proviso to Regulation 2B(1), is also constitutionally valid. For the above reasons, we have come to the conclusion that there is no merit in the appeals and the writ petition. The civil appeals and writ petition are accordingly dismissed. 92 Pending application(s), if any, stand disposed of.
The Supreme Court recently decided that a person who is not allowed to submit a rescue plan for a struggling company under one law (Section 29A of the Insolvency Bankruptcy Code) also cannot suggest a different kind of recovery plan under another law (Section 230 of the Companies Act, 2013). The judges, Justices DY Chandrachud and MR Shah, also confirmed that certain rules made by the Insolvency and Bankruptcy Board of India in 2016 are legal. These rules state that anyone not allowed to propose a rescue plan under the first law cannot be involved in any way with these other recovery plans either. The Court made these observations while rejecting appeals against earlier decisions by the National Company Law Appellate Tribunal. They also dismissed a formal challenge questioning the legality of Regulation 2B of the Liquidation Process Regulations. In the cases heard by the National Company Law Tribunal (NCLT) before this, it was already decided that someone ineligible under Section 29A of the Insolvency Bankruptcy Code to propose a rescue plan is also barred from suggesting a recovery plan under Section 230 of the Companies Act, 2013. The Supreme Court judges explained, "It would be clearly illogical if the very people who are not allowed to submit a rescue plan, participate in selling the company's assets, or buy the company as an ongoing business, were somehow permitted to suggest a compromise or arrangement under Section 230 of the Act of 2013." After looking at past legal decisions and rules from both the Insolvency Bankruptcy Code (IBC) and the Companies Act 2013, the Court made several important points in paragraph 68 of its judgment: The way the IBC law is set up, and its history of connecting with Section 230 of the Companies Act, especially for companies being shut down, is very important for this case. First, when a company goes through the shutdown process under the IBC, it follows a full series of steps required by that law. Second, one way to try and save a company during its shutdown is through the rules of Section 230 of the Companies Act, which the appointed liquidator (the person managing the shutdown) can use. Third, the liquidator's legal duties do not stop when they invite suggestions for a compromise or arrangement under Section 230. The liquidator's role and duties are clearly defined in the IBC. When using Section 230 of the Companies Act, the liquidator's main goal is to try and revive the company to prevent it from completely failing. If a rescue plan is approved and then officially sanctioned by the Tribunal, everyone involved, including the liquidator, must follow it. Because of this, it's hard to agree with the argument that Section 230 of the Companies Act is a separate rule with no connection to the IBC. While Section 230 is indeed broader and can apply to companies not involved in IBC proceedings, its strict rules wouldn't apply in those cases. However, when the reason for using Section 230 comes from a company already going through a shutdown under the IBC, then both sets of laws must be understood together. This way, while a rescue plan under Section 230 is being worked on, it aligns with the main ideas of the IBC, since the plan is for a company that is currently being shut down under the IBC. This ensures the company is protected from its old management and from failing completely. It would be truly absurd if the same people who are not allowed to submit a rescue plan, buy company assets during shutdown, or buy the company as a whole business, could somehow propose a compromise or arrangement under Section 230 of the Companies Act, 2013. The court also disagreed with the argument that linking the disqualifications under Section 29A and Section 35(1)(f) of the IBC to rescue plans under Section 230 of the Companies Act 2013 would violate the constitutional right to equality (Article 14). The appellant had argued that this would make them "considered ineligible" to submit a proposal under Section 230. The court stated, "We found no merit in this argument. As explained earlier, all the steps involved—submitting a rescue plan, selling a company's assets during shutdown, and selling the company as an ongoing business—show that the person who started the company or its previous management should not be allowed to get back in through a 'back-door' method. That's why they are not allowed to participate during these stages. Suggesting a compromise or arrangement under Section 230 of the Companies Act, while the company is being shut down under the IBC, is part of this same continuous process. Therefore, the bans that apply in the earlier situations must also apply to the later ones to make sure similar situations are treated fairly." The court also rejected the argument that Section 35(1)(f) only applies to a liquidator who sells a company's property during shutdown, and not to the NCLT court when it uses its powers under Section 230 of the Companies Act 2013. The court explained this by saying: "The liquidator appointed under Chapter III of the IBC is given many powers and duties. Sections 37 to 42 of the IBC provide examples of these powers during the shutdown process. The liquidator performs several duties that are like those of a judge. Section 35(1) itself clearly states that the liquidator's powers and duties are 'subject to the directions of the adjudicating authority' (the NCLT). In other words, the liquidator's actions can be reviewed by the NCLT, which acts as the main authority. Therefore, to say that the NCLT can ignore the disqualifications set out in Section 35(1)(f) when considering a proposal for a compromise or arrangement under Section 230 of the Companies Act 2013, for a company being shut down under the IBC, would not be the correct way to understand the law." The main reason for challenging Regulation 2B was that it supposedly went beyond the powers of the IBBI by creating new disqualifications for submitting a proposal for a compromise or arrangement under Section 230 of the Companies Act. In response to this argument, the court observed: "In our view, this situation can be looked at in two ways, even without considering Regulation 2B. We have already shown in our earlier discussion that even without Regulation 2B, a person who is disqualified under Section 29A, when read with Section 35(1)(f), is not allowed to suggest a plan to revive a company that is..." A company can go through a shutdown process called liquidation under the IBC, which is India's bankruptcy law. We concluded that a plan to settle debts or reorganize the company, proposed under Section 230, is part of this shutdown process. The plan's main goal is to try and save the company. This idea first came from the Meghal Homes court case, which involved interpreting an older law, Section 391. Rules about who can try to save a company are in Chapter II (Section 29A) of the IBC. The same type of rules also apply to who can propose a plan during a company's shutdown under Chapter III (Section 35(1)(f)). So, the extra rule, called a proviso, in Regulation 2B simply clarifies this. Even without this extra rule, a person who is not allowed under Section 29A would not be permitted to suggest a compromise plan. This applies to plans under Section 230 of the 2013 Act. Therefore, we find no valid reason to challenge Regulation 2B. The judges rejected the appeals and decided the following: Based on our analysis, the ban set by Parliament in Section 29A and Section 35(1)(f) of the IBC must also apply to any plan to settle debts or reorganize under Section 230 of the 2013 Act. This holds true when a company is being shut down under the IBC. Therefore, Rule 2B of the Liquidation Process Regulations, especially the extra condition in Rule 2B(1), is legally valid.
This judgment has been divided into the following sections to facilitate analysis: D.1 Ineligibility during the resolution process and liquidation D.2 Interplay : IBC liquidation and Section 230 of the Act of 2013 D.4 Constitutional Validity of Regulation 2B - Liquidation Process 1 By its judgment dated 24 October 2019, the National Company Law Appellate Tribunal2 held that a person who is ineligible under Section 29A of the Insolvency Bankruptcy Code, 20163 to submit a resolution plan, is also barred from proposing a scheme of compromise and arrangement under Section 230 of the Companies Act, 20134. The judgment was rendered in an appeal5 filed by Jindal Steel and Power Limited6, an unsecured creditor of the corporate debtor, Gujarat NRE Coke Limited7. The appeal was preferred against an order passed by the National Company Law Tribunal8 in an application9 under Sections 230 to 232 of the Act of 2013, preferred by Mr Arun Kumar Jagatramka, who is a promoter of GNCL. The NCLT had allowed the application and issued directions for convening a meeting of the shareholders and creditors. In its decision dated 24 October 2019, the NCLAT reversed this decision and allowed the appeal by JSPL. The decision of the NCLAT dated 24 October 2019 is challenged in the appeal before this Court. 2 Mr Arun Kumar Jagatramka, assails the order dated 24 October 2019 of the NCLAT, inter alia, on the ground that Section 230 of the Act of 2013 does not place any embargo on any person for the purpose of submitting a scheme. the “Act of 2013” According to the appellant, in the absence of a disqualification, the NCLAT could not have read the ineligibility under Section 29A of the IBC into Section 230 of the Act of 2013. This would, in the submission, amount to a judicial reframing of legislation by the NCLAT, which is impermissible. 3 Before we advert to the submissions of the counsels on questions of law, it will be useful to outline the salient facts of this dispute to understand the contours of the controversy. GNCL, the corporate debtor, moved an application under Section 10 of the IBC before the NCLT for initiating the Corporate Insolvency Resolution Process10. The application was admitted on 7 April 2017. 4 Mr Arun Kumar Jagatramka submitted a resolution plan for GNCL on 1 November 2017, which was presented by the Resolution Professional11 before the Committee of Creditors12. The plan was to be put to a vote in a meeting of the CoC scheduled on 23-24 November 2017. 5 The IBC was amended by the Insolvency and Bankruptcy Code (Amendment) Act, 2018. Section 29A which was inserted with retrospective effect from 23 November 2017 provides a list of persons who are ineligible to be resolution applicants. Sub-section (g) of Section 29A disqualifies a person from being a resolution applicant if they have been a promoter or in the management or control of a corporate debtor in which a preferential transaction, undervalued transaction, extortionate credit transaction or fraudulent transaction has taken place and in respect of which an order has been made by the NCLT under the “CIRP” or “resolution process” IBC. A second amendment was made to various provisions of IBC, including Section 29A, under the Insolvency and Bankruptcy Code (Second Amendment) Act, 2018, effective from 6 June 2018. A proviso was added to sub-Section (g) of Section 29A. Section 29A of the IBC in its present form reads as follows: “29A. Persons not eligible to be resolution applicant: A person shall not be eligible to submit a resolution plan, if such person, or any other person acting jointly or in concert (b) is a wilful defaulter in accordance with the guidelines of the Reserve Bank of India issued under the Banking (c) at the time of submission of the resolution plan has an account, or an account of a corporate debtor under the management or control of such person or of whom such person is a promoter, classified as non-performing asset in accordance with the guidelines of the Reserve Bank of India issued under the Banking Regulation Act, 1949 (10 of 1949) or the guidelines of a financial sector regulator issued under any other law for the time being in force, and at least a period of one year has lapsed from the date of such classification till the date of commencement of the corporate insolvency resolution process of the corporate debtor: Provided that the person shall be eligible to submit a resolution plan if such person makes payment of all overdue amounts with interest thereon and charges relating to non- performing asset accounts before submission of resolution Provided further that nothing in this clause shall apply to a resolution applicant where such applicant is a financial entity and is not a related party to the corporate debtor. Explanation I.-- For the purposes of this proviso, the expression "related party" shall not include a financial entity, regulated by a financial sector regulator, if it is a financial creditor of the corporate debtor and is a related party of the corporate debtor solely on account of conversion or substitution of debt into equity shares or instruments convertible into equity shares or completion of such transactions as may be prescribed, prior to the insolvency commencement date. Explanation II.-- For the purposes of this clause, where a resolution applicant has an account, or an account of a corporate debtor under the management or control of such person or of whom such person is a promoter, classified as non-performing asset and such account was acquired pursuant to a prior resolution plan approved under this Code, then, the provisions of this clause shall not apply to such resolution applicant for a period of three years from the date of approval of such resolution plan by the Adjudicating (d) has been convicted for any offence punishable with (i) for two years or more under any Act specified under the (ii) for seven years or more under any other law for the time Provided that this clause shall not apply to a person after the expiry of a period of two years from the date of his release Provided further that this clause shall not apply in relation to a connected person referred to in clause (iii) of Explanation I; (e) is disqualified to act as a director under the Companies Provided that this clause shall not apply in relation to a connected person referred to in clause (iii) of Explanation I; (f) is prohibited by the Securities and Exchange Board of India from trading in securities or accessing the securities (g) has been a promoter or in the management or control of a corporate debtor in which a preferential transaction, undervalued transaction, extortionate credit transaction or fraudulent transaction has taken place and in respect of which an order has been made by the Adjudicating Provided that this clause shall not apply if a preferential transaction, undervalued transaction, extortionate credit transaction or fraudulent transaction has taken place prior to the acquisition of the corporate debtor by the resolution applicant pursuant to a resolution plan approved under this Code or pursuant to a scheme or plan approved by a financial sector regulator or a court, and such resolution applicant has not otherwise contributed to the preferential transaction, undervalued transaction, extortionate credit transaction or (h) has executed a guarantee in favour of a creditor in respect of a corporate debtor against which an application for insolvency resolution made by such creditor has been admitted under this Code and such guarantee has been invoked by the creditor and remains (i) is subject to any disability, corresponding to clauses (a) to (h), under any law in a jurisdiction outside India; or (j) has a connected person not eligible under clauses (a) to Explanation I -- For the purposes of this clause, the (i) any person who is the promoter or in the management or (ii) any person who shall be the promoter or in management or control of the business of the corporate debtor during the (iii) the holding company, subsidiary company, associate company or related party of a person referred to in clauses (i) Provided that nothing in clause (iii) of Explanation I shall apply to a resolution applicant where such applicant is a financial entity and is not a related party of the corporate Provided further that the expression "related party" shall not include a financial entity, regulated by a financial sector regulator, if it is a financial creditor of the corporate debtor and is a related party of the corporate debtor solely on account of conversion or substitution of debt into equity shares or instruments convertible into equity shares 9[or completion of such transactions as may be prescribed], prior Explanation II.-- For the purposes of this section, "financial entity" shall mean the following entities which meet such criteria or conditions as the Central Government may, in consultation with the financial sector regulator, notify in this (b) any entity regulated by a foreign central bank or a securities market regulator or other financial sector regulator of a jurisdiction outside India which jurisdiction is compliant with the Financial Action Task Force Standards and is a signatory to the International Organisation of Securities Commissions Multilateral Memorandum of Understanding; (c) any investment vehicle, registered foreign institutional investor, registered foreign portfolio investor or a foreign venture capital investor, where the terms shall have the meaning assigned to them in regulation 2 of the Foreign Exchange Management (Transfer or Issue of Security by a Person Resident Outside India) Regulations, 2017 made under the Foreign Exchange Management Act, 1999 (42 of (d) an asset reconstruction company registered with the Reserve Bank of India under Section 3 of the Securitisation and Reconstruction of Financial Assets and Enforcement of (e) an Alternate Investment Fund registered with the (f) such categories of persons as may be notified by the Due to the insertion of Section 29A, Mr Arun Kumar Jagmatramka became ineligible to submit a resolution plan. 6 No further resolution plan was approved by the CoC due to the paucity of time. In the absence of a resolution plan, the NCLT passed an order of liquidation on 11 January 2018, after the expiry of 270 days. The order of the NCLT ordering liquidation was challenged in appeal13 by Mr Arun Kumar Jagatramka before the NCLAT. The appeal was dismissed by the NCLAT by its order dated 10 July 2018. The dismissal of the appeal by the NCLAT was assailed before this Court, which issued notice to GNCL on 19 July 2019. 7 During the pendency of the appeal before NCLAT, where the order of liquidation passed by the NCLT was assailed, Mr Arun Kumar Jagatramka moved an application under Sections 230 to 232 of the Act of 2013 before the NCLT proposing a scheme for compromise and arrangement between the erstwhile promoters and creditors. This application was allowed by the NCLT through its order dated 15 May 2018, and a direction was issued for convening of a meeting of shareholders, secured creditors, unsecured creditors and FCCB holders for approval of the scheme of compromise and arrangement. 8 JSPL, an operational creditor of GNCL, preferred an appeal against the order of the NCLT dated 15 May 2018 before the NCLAT. The NCLAT allowed the appeal by its judgement dated 24 October 2019, holding that promoters who are ineligible to propose a resolution plan under Section 29A of the IBC are not entitled to file an application for compromise and arrangement under Sections 230 to 232 of the Act of 2013. The basis of this finding is contained in paragraphs 10 to 12 of the impugned judgement which is extracted below: “10. As noticed above, the Hon'ble Supreme Court in Swiss Ribbons Pvt. Ltd. & Anr. Vs. Union of India & Ors. - Writ Petition (Civil) No.99 of 2019 held that the 'primary focus of the legislation is to ensure revival and continuation of the corporate debtor by protecting the corporate debtor from its own management and from a corporate death by liquidation'. 11. The aforesaid judgment makes it clear that even during the period of Liquidation, for the purpose of Section 230 to 232 of the Companies Act, the 'Corporate Debtor' is to be saved from its own management, meaning thereby the Promoters, who are ineligible under Section 29A, are not entitled to file application for Compromise and Arrangement in their favour under Section 230 to 232 of the Companies Act. Proviso to Section 35(f) prohibits the Liquidator to sell the immovable and movable property or actionable claims of the 'Corporate Debtor' in Liquidation to any person who is not eligible to be a Resolution Applicant, quoted below: - "35. Powers and duties of Liquidator.-(1) Subject to the directions of the Adjudicating Authority, the liquidator shall (f) subject to section 52, to sell the immovable and movable property and actionable claims of the corporate debtor in liquidation by public auction or private contract, with power to transfer such property to any person or body corporate, or to sell the same in parcels in such manner as may be specified. Provided that the liquidator shall not sell the immovable and movable property or actionable claims of the corporate debtor in liquidation to any person who is not eligible to be a resolution applicant.” 12. From the aforesaid provision, it is clear that the Promoter, if ineligible under Section 29A cannot make an application for Compromise and Arrangement for taking back the immovable and movable property or actionable claims of the 'Corporate 9 The judgment and order of the NCLAT is the subject of the appeal. 10 This appeal has been filed for assailing an order dated 19 December 2019 of the NCLAT in which it relied on the judgment dated 24 October 2019 impugned in the earlier appeal, to hold that an individual ineligible for proposing a resolution plan under Section 29A of the IBC, is also ineligible to propose a scheme of compromise and arrangement under Section 230 of the Act of 2013. 11 The appellant - Mr Kunwer Sachdev - was the promoter and director (since suspended) of Su-Kam Power Systems Limited15. An application16 under Section 7 of the IBC was filed by one of the financial creditors of Su-Kam, which was admitted by the NCLT through its order dated 5 April 2018. The CIRP was initiated against Su-Kam. 12 When the RP invited applications for resolution plans for Su-Kam, Mr Kunwar Sachdev submitted a plan along with Phoenix ARC Private Limited on 15 November 2018. However, Mr Kunwar Sachdev was informed by an email dated 27 December 2018 issued by the RP, that the CoC had found him to be ineligible under Section 29A(h) of the IBC and consequently annulled his resolution plan. 13 This decision was challenged by filing an application17 before the NCLT. However, this was dismissed by the NCLT through its order dated 2 April 2019. This order was not challenged. 14 In the interim, due to the absence of any other resolution plan, the NCLT passed an order dated 3 April 2019, under Section 34(1) of the IBC, directing the liquidation of Su-Kam and appointing a Liquidator. The appointment of the Liquidator was challenged before the NCLAT in an appeal18, which was disposed of by an order dated 29 April 2019 upholding the appointment of the Liquidator. The Liquidator was also directed to accept applications for schemes of compromise and arrangement under Sections 230 to 232 of the Act of 2013. 15 When the Liquidator invited expressions of interest for submitting schemes of compromise and arrangement, Mr Kunwar Sachdev again expressed his interest. Emails were exchanged between the Liquidator and Mr Kunwar Sachdev, during the course of which Mr Kunwar Sachdev was invited to present his plan to the lenders of Su-Kam. However, before this could materialise, Mr Kunwar Sachdev was informed by the Liquidator through an email dated 19 September 2019, that he was ineligible to propose a scheme under Section 230 of the Act of 2013 in view of his ineligibility under Section 29A(h) of the IBC. 16 Mr Kunwar Sachdev challenged this decision in an application19 filed before the NCLT, which was dismissed by an order dated 31 October 2019 relying on the judgment dated 24 October 2019 impugned in the earlier appeal, and on the basis of Section 29A and Section 35(1)(f) of the IBC. 17 Mr Kunwar Sachdev then filed an appeal20 against this order dated 31 October 2019 before the NCLAT, which dismissed it by an order dated 19 December 2019. Mr Kunwar Sachdev now comes before this Court in appeal. 18 Before averting to Writ Petition (Civil) No 269 of 2020, it is important to first understand the controversy surrounding the Insolvency and Bankruptcy Board of 19 The Liquidation Process Regulations have been issued by the Insolvency and Bankruptcy Board of India22, constituted under Part IV of the IBC, in exercise Company Appeal (AT) (Insolvency) No. 1498 of 2019 of the powers conferred by Sections 5, 33, 34, 35, 37, 38, 39, 40, 41, 43, 45, 49, 50, 51, 52, 54, 196 and 208 read with Section 240 of the IBC. 20 The Liquidation Process Regulations were amended by the IBBI by a notification23 dated 25 July 2019, which inserted Regulation 2B. Sub-section (1) of Regulation 2B provides that a compromise or arrangement proposed under Section 230 of the Act of 2013 shall have to be completed within 90 days of the order of liquidation issued under sub-sections (1) and (4) of Section 33 of the IBC. Further, Sub-section (2) provides that the time taken in a compromise or arrangement, not exceeding 90 days, shall not be included within the liquidation period. Finally, Sub-section (3) provides that any cost which is incurred by the Liquidator in relation to the compromise or arrangement shall be borne by the corporate debtor, if such compromise or arrangement is sanctioned by the NCLT under Section 230(6). However, a proviso to Sub-section (3) notes that if such compromise or arrangement is not sanctioned by the NCLT under Section 230(6), the cost shall be borne by the parties who proposed the compromise or arrangement. 21 Regulation 2B was amended by a notification24 dated 6 January 2020, by which a proviso was added to Sub-section (1) of Regulation 2B, which provides that a party ineligible to propose a resolution plan under the IBC cannot be a party to a compromise or arrangement. Regulation 2B, in its present form, reads “2-B. Compromise or arrangement.—(1) Where a compromise or arrangement is proposed under Section 230 of the Companies Act, 2013 (18 of 2013), it shall be completed within ninety days of the order of liquidation under Provided that a person, who is not eligible under the Code to submit a resolution plan for insolvency resolution of the corporate debtor, shall not be a party in any manner to such compromise or arrangement. (2) The time taken on compromise or arrangement, not exceeding ninety days, shall not be included in the liquidation period. (3) Any cost incurred by the liquidator in relation to compromise or arrangement shall be borne by the corporate debtor, where such compromise or arrangement is sanctioned by the Tribunal under sub-section (6) of Section Provided that such cost shall be borne by the parties who proposed compromise or arrangement, where such compromise or arrangement is not sanctioned by the Tribunal under sub-section (6) of Section 230.” 22 Writ Petition (Civil) No 269 of 2020 has been filed by Mr Arun Kumar Jagatramka, also the appellant in the First Appeal, assailing the notifications dated 25 July 2019 and 6 January 2020 issued by the IBBI, through which it inserted Regulation 2B into the Liquidation Process Regulations, and subsequently amended it. As the petitioner, he contends that Regulation 2B is ultra vires the IBC and the Act of 2013, and also violates Articles 14, 19 and 21 of the Constitution. The prayer in the writ petition has been extracted below: “In the premises set forth above, the Petitioner prays that this a. Writ, Order or Direction more particularly in the nature of WRIT OF DECLARATION declaring that the provisions of Notifications dated 25.07.2019 and 06.01.2020 issued by the Insolvency and Bankruptcy Board of India are ultra vires the Insolvency and Bankruptcy Code, 2016 as well as the Companies Act, 2013 and violative of Article 14, 19, 21 of the Constitution of India.” 23 Having detailed the factual background of these petitions, we shall now turn to the issues before this Court and the submissions of counsels. 24 The NCLAT formulated two principal issues in the first of its judgments in “(i) Whether in a liquidation proceeding under Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the 'l&B Code') the Scheme for Compromise and Arrangement can be made in terms of Sections 230 to 232 of the (ii) If so permissible, whether the Promoter is eligible to file application for Compromise and Arrangement, while he is ineligible under Section 29A of the I&B to submit a 25 The first of the above issues has been answered in the affirmative by the NCLAT, to which, as Mr Sandeep Bajaj, learned Counsel for the appellant noted, there is no challenge. The real bone of dispute relates to the second issue. In the submission of Mr Sandeep Bajaj, what the NCLAT determined while addressing itself to the issue in dispute is whether the ineligibility under Section 29A of the IBC can be read into the provisions of Section 230 of the Act of 2013. In essence, Mr Bajaj’s approach to the issue is that a disqualification which is not provided by the legislature cannot be introduced by a judicial determination. In the present case, he submitted, Section 29A does not expressly provide that it extends to Section 230 of the Act of 2013. Section 230, in his submission, is a ‘different section in different enactment’ to which the ineligibility under Section 29A of the IBC cannot be attracted. 26 Mr Amit Sibal, learned Senior Counsel appearing for the respondent in the Second Appeal, on the other hand, submitted that the correct question to pose is whether a person who is ineligible under Section 29A of the IBC is permitted to propose a scheme for revival under Section 230 of the Act of 2013 at the stage of liquidation either themselves or in concert with others. 27 The nuanced manner in which the contesting sides have prefaced their submissions is indicative of the broad nature of the contest. On one hand, Mr Bajaj submits that the ineligibility under Section 29A of the IBC attaches to the proceedings under the IBC alone, involving the submission of a resolution plan. On the other hand, what Mr Sibal urges is that when an order of liquidation has been passed under and in pursuance of proceedings which were initiated under the IBC, Section 230 of the Act of 2013 expressly contemplates that the liquidator appointed under the IBC may move the NCLT where a compromise or arrangement is proposed. Hence, the proposal for a compromise or arrangement under Section 230, where a company is in liquidation under the IBC, is in continuation of that liquidation process. Hence, according to Mr Sibal, a person who is ineligible under Section 29A cannot propose a scheme for revival under 28 Having thus elucidated the battle lines of legal conflict, we proceed to enumerate the submissions. 29 Mr Sandeep Bajaj, learned Counsel appearing on behalf of the appellant in the First Appeal and the Petition under Article 32 submitted that: (i) Chapter II of the IBC indicates that the CIRP can be invoked in three (a) By a financial creditor under Section 7; (b) By an operational creditor under Section 9; and (c) By a corporate debtor under Section 10. (ii) The IBC and its regulations indicate that there is a clear distinction (a) the settlement mechanism which allows for a settlement upon which the corporate debtor would stand restored to the promoter together (b) the resolution mechanism under which, upon the acceptance of a resolution plan, the company moves over to the control of the acquirer on a clean slate for a fixed consideration, consequent to the (iii) Section 29A is a part of the resolution mechanism, the object and purpose of which is to prevent a back-door entry to the promoter who should not be allowed to have advantage of their own wrong; (iv) Though the appellant falls in the prohibited category under Section 29A, the purpose of the prohibition is to prevent the promoter from submitting a resolution plan with reference to the provisions of Sections 30 and 31 of (v) Chapter III of the IBC, commencing with Section 33, deals with the liquidation process and Regulation 32 of the Liquidation Process Regulations deals with “sale of assets etc. by the liquidator”. In the course of the liquidation under Chapter III, the liquidation estate is to be formed under Section 36 and the sale under Regulation 32 is an intrinsic part of the liquidation estate. The consequence is that acquirer begins on a clean slate. The ineligibility under Section 29A which attaches for the purpose of Chapter II, in the context of a resolution plan, has been extended under Section 35(1)(f) to Chapter III on the basis of the above rationale, i.e., that the liquidator shall not sell the moveable or immoveable property of the corporate debtor or its actionable claims in liquidation to any person who is (vi) Rule 8 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 contemplates that the NCLT, in its role as the Adjudicating Authority, may permit withdrawal of an application by the financial creditor, operational creditor or corporate applicant on a request made by the applicant before its admission. This is indicative of the position that the NCLAT does not have an inherent power to allow for withdrawal of the application after admission; (vii) Section 12-A was inserted in the IBC by Amending Act 26 of 2018 with retrospective effect from 6 June 2018 so as to permit the NCLT to allow the withdrawal of an application which has been admitted under Sections 7, 9 or 10 on an application made by the applicant, with the approval of ninety per cent of a voting share of the CoC in such a manner as may be (viii) Regulation 30-A of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (which was inserted on 3 July 2018) allowed for the withdrawal under Section 12-A before the issuance of an invitation for expression of interest under Regulation 36-A. In the decision of this Court in Swiss Ribbons Private Limited v. Union of India25 which was rendered on 25 January 2019, the Court held that a withdrawal of an application can be permitted between admission of the application and the constitution of the CoC. Following up on this, Regulation 30-A was substituted on 25 July 2019 to allow an application for withdrawal under Section 12-A both before and after the constitution of the CoC. However, where the application is made after the constitution of the CoC (under Regulation 30-A(1)(b)), and after the issuance of the invitation for expression of interest, the reasons justifying the withdrawal are required to be stated; (2019) 4 SCC 17; herein, referred to as “Swiss Ribbons” (ix) The decision in Brilliant Alloys (P) Ltd. v. S Rajagopal26 would indicate that a withdrawal can be permitted even after the expression of interest, as a consequence of which Regulation 30-A is directory in nature; (x) The consequence of a withdrawal of the application under Sections 7, 9 or 10 is that the corporate debtor stands restored to the promoter. As such, Section 29A does not operate as an ineligibility on the settlement mechanism. On the withdrawal of the application the corporate debtor goes back to the same promoter, even if they are ineligible under Section 29A for the submission of the resolution plan; (xi) The ineligibility under Section 29A, which forms a part of Chapter II of the IBC, is only during the resolution process; (xii) The rationale for imposing an ineligibility under Section 29A in the resolution process is that the successful resolution applicant under Section 31 of the IBC obtains the company on a clean slate, as indicated in the decision of this Court in Committee of Creditors of Essar Steel India Limited v. Satish Kumar Gupta27. This benefit is not available where an application is simpliciter withdrawn under Section 12-A; (xiii) Section 230 of the Act of 2013 is a part of the settlement mechanism and is at par with the provisions of Section 12-A. The impact of a compromise or arrangement is also that company is restored to the promoters with all its liabilities. While Section 12-A of the IBC permits withdrawal of an 2018 SCC OnLine SC 3154; hereinafter, referred to as “Brilliant Alloys” application, Sections 230 and 230-A of the Act of 2013 envisage a compromise or arrangement. As such, they both form a part of the settlement mechanism and are not part of the resolution mechanism, to which alone the ineligibility under Section 29A applies. Hence, this ineligibility cannot now be engrafted into Section 230; (xiv) Section 230 was amended on 15 November 2016 and under Sub-Section (6), the compromise or arrangement becomes binding if 3/4th in value of the creditors or class of creditors or members agree to it, and if it is sanctioned by the NCLT. The compromise or arrangement then becomes binding on the liquidator appointed under the IBC as a whole. The provisions of Section 230 are, however, not restricted to liquidation. They are not regulated by the IBC. Section 230 operates in an area independent of the IBC. Following the amendment of Section 230(1) on 15 November 2016, the application for a compromise can also be proposed by the liquidator appointed under the IBC. However, the right of the liquidator to make an application under Section 230(1) is in addition to the others enumerated therein and not exclusive, in view of the principle which was laid down by this Court while construing the corresponding provisions of (xv) The discussion papers circulated by the IBBI in April and November 2019 clearly demonstrate that IBBI was aware of the fact that the ineligibility which attaches to the resolution process under Section 29A will not attach the “Act of 1956” to Section 230 of the Act of 2013. The proviso to Regulation 2B was notified by the IBBI on 6 January 2020 to stipulate that a person who is not eligible under the IBC to submit a resolution plan for insolvency resolution of the corporate debtor shall not be a party to such compromise or arrangement. Regulation 2B is ultra vires the provisions of Section 230 of the Act of 2013. IBBI had no statutory authority to make the Regulation 2B, through which it has effectively provided a disqualification under the Act of 2013, even though the mandate of IBBI is confined only to the IBC; and (xvi) Regulation 2B is violative of Articles 14, 19 and 21 of the Constitution as it seeks to import an ineligibility under the provisions of the IBC to a dissimilar provision in the Act of 2013. Moreover, when ineligibility is not attracted under Section 12-A of the IBC, imposing this ineligibility under Section 230 of the Act of 2013 is arbitrary. 30 Adopting the submissions which were urged by Mr Sandeep Bajaj, Mr Shiv Shankar Banerjee, learned Counsel appearing on behalf of the appellant in the (i) A complete procedure has been stipulated under the provisions of the IBC (ii) Where a sale of the assets of the corporate debtor or sale of the business of the corporate debtor takes place in the course of the liquidation, Section 35(1)(f) of the IBC stipulates that the assets cannot be sold to a person who is ineligible under Section 29A. The object is to ensure that liquidation should not be used to allow the promoter to get the assets free from (iii) In contrast to a successful resolution applicant under Chapter II or the person who benefits from the sale of assets in liquidation under Chapter III of the IBC, the person who proposes a compromise or arrangement under Section 230 under the Act of 2013 does not have the benefit of acquiring the company free of encumbrances. There is thus no reason or justification to exclude the promoter from invoking the provisions of Section 230; (iv) Section 230(1) makes a reference to a liquidator appointed under the IBC because when the provision of Sections 7, 9 or 10 have been invoked, and an order of admission has been passed, liquidation, if required, will take place under the provisions of Section 35 of the IBC; (v) The mischief which was sought to be remedied by the adoption of Section 29A is restricted to the resolution process, its object being that persons should not take advantage of their own wrong. It is justifiable if a defaulter is excluded from the resolution process which may result in the creditors taking a haircut of their outstanding claims. Moreover, a successful resolution applicant begins on a clean slate. In contrast, under Section 230, the scheme has to be sanctioned by the NCLT only upon which it will (vi) The insertion of the proviso in Regulation 2B of the Liquidation Process Regulations is a clear indicator of the fact that a disqualification or ineligibility under Section 29A is not a part of Section 230 of the Act of 31 The above submissions have been contested by Mr Amit Sibal, learned Senior Counsel appearing on behalf of the respondents in the Second Appeal. (i) A proposal under Section 230 of the Act of 2013 need not result in the revival of the company. The proposal may apply only to a class of creditors or shareholders. Even prior to its amendment, this Court had held that additional conditions apply when a plan under the erstwhile provisions of Section 391 of the Act of 1956 is propounded at the time of liquidation of (ii) Section 29A has several ineligibilities apart from those that attach to promoters. To allow a person who is ineligible under Section 29A from submitting a compromise or arrangement under Section 230 at the liquidation stage is contrary to the letter and spirit of the IBC; (iii) The NCLT while dealing with an application for a compromise or arrangement under Section 230 of the Act of 2013, in respect of a company which is being liquidated under the IBC, performs a dual role: firstly, as an Adjudicating Authority under the IBC and as a Tribunal under the Act of 2013. Therefore, it can insist on adherence to additional (a) The proposed compromise or arrangement must result in a revival of (b) The compromise or arrangement cannot be proposed by a person (iv) When the IBC was originally enacted there was no bar of the nature found in Section 29A on who can propose a resolution plan either pre or post (v) The ineligibility under Section 29A and Section 35(1)(f) was introduced by a legislative amendment on 23 November 201729, both at the pre and post (vi) The purpose of the disqualification is to ensure a sustainable revival, which means that those responsible for the state of affairs of a company and other persons regarded by the legislature as undesirable should be (vii) Persons who are ineligible under Section 29A or Section 35(1)(f) cannot (c) by purchasing the assets during liquidation. (viii) Section 29A does not apply only to conduct in relation to the corporate debtor, but in relation to other companies as well; (ix) The ineligibility engrafted in Section 29A extends to Chapter III by virtue of the provision of Section 35(1)(f). This must be read together with “Act 8 of 2018” Regulation 32 of the Liquidation Process Regulations. Regulation 32 provides six modes of realization of assets, out of which four involve the sale of assets and two involve the transfer of the corporate debtor or its (x) Regulation 44(1), through its proviso, allows for an additional period of ninety days for the liquidation process where the sale is through Regulation 32-A(1) so as to encourage a revival of the company; (xi) There is no reference in the body of the IBC to a scheme of compromise under Section 230. Section 230 (especially sub-Sections (1) and (6)) (a) a compromise can be with a sub-set of creditors; (b) liquidation is one scenario in which Section 230 can be invoked; and (c) a compromise with only a class of creditors will bind only that class (xii) While construing the corresponding provisions of erstwhile Section 391 of the Act of 1956, this Court held in Meghal Homes Pvt. Ltd. v Shree Niwas Girni K. K. Samiti30 that where a scheme of compromise and arrangement is proposed in respect of the company in liquidation, additional requirements need to be established, namely that the scheme must be for the revival of company. The impact of a scheme under Section 391, where the company is in liquidation, is that the proposers of the scheme enter into the management with the debt having been resolved. (2007) 7 SCC 753; herein, referred to as “Meghal Homes” This makes the scheme of compromise or arrangement under Section 230 qualitatively different from a simpliciter withdrawal of an application under Section 12-A of the IBC. Section 12-A does not incorporate any requirement for the revival of the company; (xiii) The IBC provides for three modes of revival: (b) sale of a company in liquidation as a going concern (read with (c) a scheme of compromise or arrangement under Section 230 of the Act of 2013, following upon an order for liquidation being passed The prohibition or ineligibility which applies in (a) and (b) must necessarily attach to (c) as well. When a plan for compromise or arrangement is proposed at the liquidation stage of IBC under Section 230 of the Act of 2013, it must satisfy the rigors of the IBC. Hence, a person who is ineligible under Section 29A cannot submit a plan under Section 230 of the Act of (xiv) In construing the provisions of Sections 29A and 35(1)(f) of the IBC, notice must be taken of the fact that the ineligibility was made applicable both to the resolution stage as well as the stage of liquidation. In interpreting these provisions, the purpose and object of the amendment must be borne in mind, which is that a scheme of revival cannot be proposed by a person who stands disqualified under Section 29A; (xv) The proposal of a compromise or arrangement under Section 230 in a situation where the company is in liquidation under the IBC is a facet of the liquidation process under the IBC. Section 230 was amended to include a liquidator appointed under the IBC. The statutory scheme indicates that: (a) A liquidation under the IBC follows upon the entire gamut of (b) Section 230 of the Act of 2013 provides one of the modes of revival (c) Other activities of the liquidator do not cease while inviting schemes under Section 230. The steps required to be taken by the liquidator in liquidation include a compromise or arrangement under Section 230. It is in this context that the NCLT performs a dual role - that of an Adjudicating Authority in the matter of liquidation under the IBC as well as of a Tribunal for a scheme of compromise and (xvi) The fundamental postulate of the IBC is that a corporate debtor has to be protected from its management and corporate debt. Hence, it would be anomalous if a compromise or arrangement can be entertained from a person who is responsible for the state of affairs of the corporate debtor; (xvii) Where a company is in liquidation under the provisions of the IBC, the submission of a compromise or arrangement under Section 230 has distinct features of commonality with a resolution plan namely: (b) Once officially approved, it assumes a binding character; These intrinsic elements of revival and of the binding nature permeate both a resolution plan on the one hand and a compromise or arrangement on the other, which is arrived at in the course of liquidation; (xviii) The introduction of the proviso to Regulation 2(B) of the Liquidation Process Regulations with effect from 6 January 2020 is only by way of a (xix) Dehors the provisions of the IBC, the rigors of the IBC will not apply to a proceeding under Section 230 of the Act of 2013. In other words, the ineligibility under Sections 29A and 35(1)(f) applies only to a situation where a corporate debtor has come within the purview of the IBC and has been taken into liquidation under Chapter III. It is only where a compromise or arrangement under Section 230 of the Act of 2013 is proposed in respect of a company which is undergoing liquidation under the IBC that the rigors of Section 29A and 35(1)(f) would stand attracted; (xx) An absurdity will result if persons found to be derelict or guilty of (b) obtaining a sale of assets in liquidation; and (c) obtaining a sale of the company as a going concern. can still propose a compromise under Section 230 of the Act of 2013. It is a settled principle of law that an interpretation which leads to absurdity (xxi) There is a fallacy in equating the provisions of Section 230 of the Act of 2013 with an application for withdrawal under Section 12-A of the IBC. Section 12-A is not intended to be the culmination of the resolution process but is at the inception. The withdrawal by an applicant leads to a status quo ante in respect of liabilities of the corporate debtor and does not require that the defaults in respect of all creditors are brought to an end. In (a) a resolution plan under Section 31 of the IBC (as well as the scheme under Section 230 of the Act of 2013) binds all the (b) results in a clean slate unlike Section 12-A; and (c) constitutes a culmination of the resolution plan. As distinct from the provisions of Section 31 of the IBC and Section 230 of the Act of 2013, a withdrawal under Section 12-A restores the status quo ante and is hence not concerned with ineligibilities under Section 29A; and (xxii) Section 240 of the IBC enunciates the power to make regulations to carry out the provisions of the Code. The insertion of the proviso to Regulation (a) the amendment is consistent with the IBC and carries out its (b) it is clarificatory in nature since even in its absence, the ineligibility under Section 29A would govern. (i) Where a company is in liquidation under Chapter III of the IBC, a proposed scheme of compromise or arrangement under Section 230 of the Act of 2013 must comply with the requirements of the IBC; (ii) The specific requirements which must be fulfilled under (i) above are that: (a) the scheme must be for the revival of the company; and (b) it must not be proposed by a person who is ineligible under Section (iii) The above requirements are IBC specific and not inconsistent with the provisions of Section 230 of the Act of 2013; (iv) Sections 29A and 35(1)(f) of the IBC prohibit a certain category of persons from proposing a revival of the company in the course of the CIRP, liquidation process and in purchasing the assets in the course of liquidation. To make an exception in a plan for revival under Section 230 of the Act of 2013 in the context of a scheme of compromise or arrangement will defeat the object and intent of the amendment to the IBC and lead to an absurdity. This would perpetrate the mischief which was sought to be (v) When a company is in liquidation under the IBC, a scheme proposed under Section 230 is a facet of the liquidation process and the same rationale which permeates the liquidation process must also govern it; and (vi) Section 12-A stands on a completely different footing. It provides for a withdrawal at the inception of the CIRP and is not a culmination of a resolution process. Nor does a Section 12-A withdrawal bind all stakeholders. 33 Mr Gopal Jain, learned Senior Counsel appearing for the respondents in the First Appeal, has urged submissions along the same lines as Mr Amit Sibal. (i) The commencement or the initiation process attracting the IBC is an (ii) In the present case, an application was filed under Section 10 as a consequence of which the case has to be analyzed through the prism of (iii) The IBC is an economic legislation and its key objectives are to ensure: (c) protect the integrity of the resolution process; (e) foster respect for the rule of law. The IBC is premised on the principle that there is a significant element of public interest in facilitating a creditor-centric regime for achieving economic growth. Ensuring that resolution plans are submitted by credible persons is intrinsic to the scheme of the IBC. Speed is of the essence. The IBC has sought to convert a legal regime which was a debtor’s paradise into a regime governed by corporate justness. The regime under the IBC is dynamic, which is reflected by eight amendments which took place between November (iv) The basic principle is that an entity which is barred under Section 29A and Section 35(1)(f) should not be in control of the assets of the corporate debtor. The objective is that defaulting promoters: (v) In order to achieve the above objectives, the Parliament enacted a simultaneous amendment of both Section 29A and Section 35(1)(f) to maintain a level playing field by comprehensively catering to all situations relating to defaulting or barred promoters; (vi) In interpreting the IBC, legal sanctity and clarity are of utmost importance. But for Section 29A, promoters would have got back into management after securing a haircut to lenders in the course of the resolution plans. Section 29A which applies to the resolution process and Section 35(1)(f) which applies to the liquidation process were intended to plug a loophole. To accept the submissions of the appellants would be creating a new loophole. Section 29A is in the nature of a see-through provision. The submissions of the appellants will in fact scare away genuine creditors and (vii) According to Section 238 of the IBC, in case of any inconsistency between the provisions of the IBC and any other law in force, the provisions of the IBC are to have an overriding effect. 34 Mr Tushar Mehta, learned Solicitor of General of India, defended the validity of Regulation 2B, more specifically the proviso. The learned Solicitor (i) The trigger is the liquidation resulting from the operation of the provisions (ii) Regulation 2B facilitates an additional period of ninety days for a compromise under Section 230 of the Act of 2013 because the entire (iii) Even if the legal position is assessed independent of Regulation 2B, the same embargo as contained in Section 29A and Section 35(1)(f) would apply to a compromise or arrangement proposed under Section 230 of the Act of 2013 in respect of a company which is undergoing liquidation under (iv) Regulation 2B is essentially clarificatory; (v) The basis of Regulation 2B is the same as Sections 29A and 35(1)(f), which is that a person who is the cause of the problem either by a design or default cannot be a part of the process solution; (vi) The IBC is a beneficial legislation. Prior to the enactment of the IBC: (a) individual creditors had individual remedies; and (b) the debtor would remain in possession of the company and its assets. With the introduction of the IBC, there has been a paradigm shift in that: (a) under the new legal regime there is a collective effort of all creditors (b) the creditor is in control instead of the debtor in possession; and (vii) Sections 196 and 240 of the IBC reflect a specific conferment of power on the IBBI to frame regulations subject to the stipulation that: (i) they are not inconsistent with the provisions of the IBC; and (ii) they carry out the purposes of the IBC. Both these conditions are fulfilled by Regulation 2(B); (viii) A regulation which is framed under a statute in exercise of the authority which is conferred on the delegate can be challenged on the ground of (b) being contrary to the provisions of Part III of the Constitution; To suffer from unreasonableness, a regulation must be held to be manifestly arbitrary. Regulation 2(B) is consistent with the object and purpose of the IBC; and does not suffer from manifest arbitrariness; and (ix) Sections 29A and 35(1)(f) apply to liquidation pursuant to the IBC. The principle of Section 29A stands absorbed in the hybrid process of compromise during liquidation under the IBC, by way of a device of incorporation by reference. 35 Mr Balbir Singh, learned Additional Solicitor General, has addressed submissions also along the above lines. 36 Having narrated the submissions advanced by both sides, we now turn to the legal position and the interplay between the proposal of a scheme of compromise and arrangement under Section 230 of the Act of 2013 and liquidation proceedings initiated under Chapter III of the IBC. D.1 Ineligibility during the resolution process and liquidation 37 Section 29A of the IBC was introduced with effect from 23 November 2017 by Act 8 of 2018. The birth of the provision is an event attributable to the experience which was gained from the actual working of the provisions of the statute since it was published in the Gazette of India on 28 May 2016. The provisions of the IBC were progressively brought into force thereafter. 38 The IBC is a law which consolidated and amended existing legislation relating to re-organisation and insolvency resolution of corporate persons, partnerships and individuals. The long title to the legislation indicates the specific objects, which it is intended to facilitate. These objects include: (i) A time bound process of re-organization and insolvency resolution; (iv) Facilitating the availability of credit; and (v) Balancing the interests of all stakeholders. 39 Some of the key drawbacks of the legal regime, as it existed prior to the (i) The absence of a single legislation governing insolvency and bankruptcy; (ii) A multiplicity of laws governing insolvency and bankruptcy of corporate (iii) The existence of multiple fora established to deal with the enforcement of (iv) The complexity caused by a maze of statutes resulting in inadequate, ineffective and delayed resolutions, occasioned by the (then) existing framework. These inadequacies were noticed in the Statement of Objects and Reasons accompanying the introduction of the Bill. The IBC reflects a fundamental change in the erstwhile legal regime. A timely resolution of corporate insolvency was conceived as an instrument to support the development of credit markets, encourage entrepreneurship, enhance the ease of doing business and provide an environment conducive to investment, setting the economy on the path to growth and development. In resolving some of the complex issues which arise under the new legal regime envisaged under the IBC, it then becomes necessary to vacuum the cobwebs of the past. Interpreting the IBC in a manner which would facilitate the salutary objects which it is intended to achieve requires all stakeholders to shed concepts and notions associated with the earlier legal regime, which was largely a debtor’s paradise. The earlier regime was one in which the debtor would largely remain in possession of the company and its assets and individual creditors were left to paddle their own canoe in headwinds controlled by those in debt and default. 40 The enactment of the IBC has marked a quantum change in corporate governance and the rule of law. First and foremost, the IBC perceives good corporate governance, respect for and adherence to the rule of law as central to the resolution of corporate insolvencies. Second, the IBC perceives corporate insolvency not as an isolated problem faced by an individual business entities but places it in the context of a framework which is founded on public interest in facilitating economic growth by balancing diverse stakeholder interests. Third, the IBC attributes a primacy to the business decisions taken by creditors acting as a collective body, on the premise that the timely resolution of corporate insolvency is necessary to ensure the growth of credit markets and encourage investment. Fourth, in its diverse provisions, the IBC ensures that the interests of corporate enterprises are not conflated with the interests of their promoters; the economic value of corporate structures is broader in content than the partisan interests of their managements. These salutary objectives of the IBC can be achieved if the integrity of the resolution process is placed at the forefront. Primarily, the IBC is a legislation aimed at re-organization and resolution of insolvencies. Liquidation is a matter of last resort. These objectives can be achieved only through a purposive interpretation which requires courts, while infusing meaning and content to its provisions, to ensure that the problems which beset the earlier regime do not enter through the backdoor through disingenuous stratagems. 41 On 23 November 2017, Parliament intervened through its amending power to introduce Section 29A into the provisions of Chapter II and Section 35(1)(f) into the provisions of Chapter III. Chapter II of the IBC ,which enunciates provisions for the CIRP, has evolved over the previous four years. Chapter III enunciates provisions in regard to the liquidation process. Section 29A stipulates diverse categories of persons who will not be eligible to submit a resolution plan. 42 By the same amending Act through which Section 29A was introduced, Section 35(1)(f) was also amended with the introduction of a proviso. Section 35 specifies the powers of the liquidator as well as their duties, which are subject to the directions of the Adjudicating Authority. Section 35(1)(f) provides as follows: “35. Powers and duties of liquidator.—(1) Subject to the directions of the Adjudicating Authority, the liquidator shall have the following powers and duties, namely:— (f) subject to section 52, to sell the immovable and movable property and actionable claims of the corporate debtor in liquidation by public auction or private contract, with power to transfer such property to any person or body corporate, or to sell the same in parcels in such manner as may be specified: Provided that the liquidator shall not sell the immovable and movable property or actionable claims of the corporate debtor in liquidation to any person who is not eligible to be a resolution applicant.” 43 The Statement of Objects and Reasons accompanying the introduction of the Bill proposing the amendment dated 23 November 2017, elucidates the purpose of introducing the new provisions: “2. The provisions for insolvency resolution and liquidation of a corporate person in the Code did not restrict or bar any person from submitting a resolution plan or participating in the acquisition process of the assets of a company at the time of liquidation. Concerns have been raised that persons who, with their misconduct contributed to defaults of companies or are otherwise undesirable, may misuse this situation due to lack of prohibition or restrictions to participate in the resolution or liquidation process, and gain or regain control of the corporate debtor. This may undermine the processes laid down in the Code as the unscrupulous person would be seen to be rewarded at the expense of creditors. In addition, in order to check that the undesirable persons who may have submitted their resolution plans in the absence of such a provision, responsibility is also being entrusted on the committee of creditors to give a reasonable period to repay overdue amounts and become eligible.” 44 During the course of the debate in the Lok Sabha on 29 December 2017, the Finance Minister noted that the IBC had been in operation for about a year. The new legislation had been a “learning experience”. The Ordinance was promulgated since a large number of cases were “already pending resolution mechanism itself” and there was a danger that if the amendment was not immediately brought in, persons who were “ineligible” would have started applying as resolution applicants. The Finance Minister in the course of his speech highlighted the reason for the amendments when he observed as follows: “…What do you do with promoters who are themselves responsible for these NPAs, that is clause C. Every creditor takes his haircut and there is an equitable distribution in the case of dissolution. In the case of resolution also, all type of creditors may take some haircut and the man who created the insolvency pays a fraction of the amount and comes back into management. Should we allow that to continue? The overwhelming view, as expressed by the Members, is that it should not be allowed. This was a gap which was there in the original Bill and by bringing in 29(a) we have tried to fill in that gap. That is the objective. In order that this provision must apply to all existing cases of resolution which are pending, that is the case for urgency. If we had not done this, then all such defaulters would have rejoiced because they would have merely walked back into these companies by paying only a fraction of these amounts. That is something which besides being commercially imprudent would also be morally unacceptable. That is the real rationale behind this particular Bill:.” 45 The Report of the Insolvency Law Committee dated 3 March 2018 states that the intent behind introducing Section 29A was to prevent unscrupulous persons from gaining control over the affairs of the company. These persons included those who by their misconduct have contributed to the defaults of the company or are otherwise undesirable. The Committee observed: “14.1. Section 29A was added to the Code by the Amendment Act. Owing to this provision, persons, who by their misconduct contributed to the defaults of the corporate debtor or are otherwise undesirable, are prevented from gaining or regaining control of the corporate debtor. This provision protects creditors of the company by preventing unscrupulous persons from rewarding themselves at the expense of creditors and undermining the processes laid down in the Code.” 46 Significantly, the ineligibility which was engrafted by the amending legislation was incorporated in both the provisions of Chapter II dealing with the CIRP as well as in Chapter III dealing with the liquidation process. Section 29A stipulates the category of persons who “shall not be eligible to submit a resolution plan”. The proviso to Section 35(1)(f) incorporates the same norm in the liquidation process, when it stipulates that the liquidator shall not sell the immovable and movable or actionable claims of the corporate debtor in liquidation “to any person who is not eligible to be a resolution applicant”. These words in Section 35(1)(f) are clearly referable to the ineligibility which is set up in 47 The underlying purpose of introducing Section 29A was adverted to in a judgment of this court in Chitra Sharma v. Union of India31. One of us (Justice DY Chandrachud) speaking for a Bench of three learned judges took note of the Statement of Objects and Reasons accompanying the Bill and emphasised the 38. Parliament has introduced Section 29A into IBC with a specific purpose. The provisions of Section 29A are intended to ensure that among others, persons responsible for insolvency of the corporate debtor do not participate in the resolution process. The Statement of Objects and Reasons appended to the Insolvency and Bankruptcy Code (Amendment) Bill, 2017, which was ultimately enacted as Act “2. The provisions for insolvency resolution and liquidation of a corporate person in the Code did not restrict or bar any person from submitting a resolution plan or participating in the acquisition process of the liquidation. Concerns have been raised that persons who, with their misconduct contributed to defaults of companies or are otherwise undesirable, may misuse this situation due to lack of prohibition or restrictions to participate in the resolution or liquidation process, and gain or regain control of the corporate debtor. This may undermine the processes laid down in the Code as the unscrupulous person would be seen to be rewarded at the expense of creditors. In addition, in (2018) 18 SCC 575; hereinafter, referred to as “Chitra Sharma” order to check that the undesirable persons who may have submitted their resolution plans in the absence of such a provision, responsibility is also being entrusted on the committee of creditors to give a reasonable eligible.” Parliament was evidently concerned over the fact that persons whose misconduct has contributed to defaults on the part of debtor companies misuse the absence of a bar on their participation in the resolution process to gain an entry. Parliament was of the view that to allow such persons to participate in the resolution process would undermine the salutary object and purpose of the Act. It was in this background that Section 29A has now specified a list of persons who are not eligible to be resolution applicants.” 48 The Court held that “Section 29A has been enacted in the larger public interest and to facilitate effective corporate governance”. The Court further observed that “Parliament rectified a loophole in the Act which allowed backdoor entry to erstwhile managements in the CIRP”. 49 In Arcelormittal India Private Limited v. Satish Kumar Gupta & Ors.32, Justice Rohinton F Nariman, speaking for himself and Justice Indu Malhotra, reiterated the same principle when he underscored the need to impart a purposive interpretation to Section 29A “depending both on the text and context “30. A purposive interpretation of Section 29A, depending both on the text and the context in which the provision was enacted, must, therefore, inform our interpretation of the (2019) 2 SCC 1; hereinafter, referred to as “Arcelormittal” same. We are concerned in the present matter with clauses (c), (f), (i) and (j) thereof.” The decision adverts to Section 29A as “a typical instance of a ‘see-through provision’ so that one is able to arrive at persons who are actually in ‘control’, whether jointly or in concert with other persons33. 50 In Swiss Ribbons (supra), the constitutionality of certain provisions of the IBC was challenged. Justice Rohinton F Nariman emphasised the object of the “27. As is discernible, the Preamble gives an insight into what is sought to be achieved by the Code. The Code is first and foremost, a Code for reorganization and insolvency resolution of corporate debtors. Unless such reorganization is effected in a time-bound manner, the value of the assets of such persons will deplete. Therefore, maximization of value of the assets of such persons so that they are efficiently run as going concerns is another very important objective of the Code. This, in turn, will promote entrepreneurship as the persons in management of the corporate debtor are removed and replaced by entrepreneurs. When, therefore, a resolution plan takes off and the corporate debtor is brought back into the economic mainstream, it is able to repay its debts, which, in turn, enhances the viability of credit in the hands of banks and financial institutions. Above all, ultimately, the interests of all stakeholders are looked after as the corporate debtor itself becomes a beneficiary of the resolution scheme—workers are “32. The opening lines of Section 29A of the Amendment Act refer to a de facto as opposed to a de jure position of the persons mentioned therein. This is a typical instance of a “see-through provision”, so that one is able to arrive at persons who are actually in “control”, whether jointly, or in concert, with other persons. A wooden, literal, interpretation would obviously not permit a tearing of the corporate veil when it comes to the “person” whose eligibility is to be gone into. However, a purposeful and contextual interpretation, such as is the felt necessity of interpretation of such a provision as Section 29A, alone governs. For example, it is well settled that a shareholder is a separate legal entity from the company in which he holds shares. This may be true generally speaking, but when it comes to a corporate vehicle that is set up for the purpose of submission of a resolution plan, it is not only permissible but imperative for the competent authority to find out as to who are the constituent elements that make up such a company. In such cases, the principle laid down in Salomon v. A. Salomon & Co. Ltd. [Salomon v. A. Salomon & Co. Ltd., 1897 AC 22 (HL)] will not apply. For it is important to discover in such cases as to who are the real individuals or entities who are acting jointly or in concert, and who have set up such a corporate vehicle for the purpose of submission of a resolution plan.” paid, the creditors in the long run will be repaid in full, and shareholders/investors are able to maximize their investment. Timely resolution of a corporate debtor who is in the red, by an effective legal framework, would go a long way to support the development of credit markets. Since more investment can be made with funds that have come back into the economy, business then eases up, which leads, overall, to higher economic growth and development of the Indian economy. What is interesting to note is that the Preamble does not, in any manner, refer to liquidation, which is only availed of as a last resort if there is either no resolution plan or the resolution plans submitted are not up to the mark. Even in liquidation, the liquidator can sell the business of the corporate debtor as a going concern. (See ArcelorMittal [ArcelorMittal (India) (P) Ltd. v. Satish Kumar Gupta, (2019) 2 SCC 1] at para 83, fn 3). 28. It can thus be seen that the primary focus of the legislation is to ensure revival and continuation of the corporate debtor by protecting the corporate debtor from its own management and from a corporate death by liquidation. The Code is thus a beneficial legislation which puts the corporate debtor back on its feet, not being a mere recovery legislation for creditors. The interests of the corporate debtor have, therefore, been bifurcated and separated from that of its promoters/those who are in management. Thus, the resolution process is not adversarial to the corporate debtor but, in fact, protective of its interests. The moratorium imposed by Section 14 is in the interest of the corporate debtor itself, thereby preserving the assets of the corporate debtor during the resolution process. The timelines within which the resolution process is to take place again protects the corporate debtor’s assets from further dilution, and also protects all its creditors and workers by seeing that the resolution process goes through as fast as possible so that another management can, through its entrepreneurial skills, resuscitate the corporate debtor to achieve all these ends.” 51 While adverting to the earlier decision in Chitra Sharma and Arcelormittal (supra), which had elucidated the object underlying Section 29A, this Court in Swiss Ribbons (supra) held that the norm underlying Section 29A “continues to permeate” Section 35(1)(f) “when it applies not merely to resolution applicants, but to liquidation also”. Rejecting the plea that Section 35(1)(f) is ultra “102. According to the learned counsel for the petitioners, when immovable and movable property is sold in liquidation, it ought to be sold to any person, including persons who are not eligible to be resolution applicants as, often, it is the erstwhile promoter who alone may purchase such properties piecemeal by public auction or by private contract. The same rationale that has been provided earlier in this judgment will apply to this proviso as well — there is no vested right in an erstwhile promoter of a corporate debtor to bid for the immovable and movable property of the corporate debtor in liquidation. Further, given the categories of persons who are ineligible under Section 29A, which includes persons who are malfeasant, or persons who have fallen foul of the law in some way, and persons who are unable to pay their debts in the grace period allowed, are further, by this proviso, interdicted from purchasing assets of the corporate debtor whose debts they have either willfully not paid or have been unable to pay. The legislative purpose which permeates Section 29A continues to permeate the section when it applies not merely to resolution applicants, but to liquidation also. Consequently, this plea is also rejected.” 52 This line of decisions, beginning with Chitra Sharma (supra) and continuing to Arcelormittal (supra) and Swiss Ribbons (supra) is significant in adopting a purposive interpretation of Section 29A. Section 29A has been construed to be a crucial link in ensuring that the objects of the IBC are not defeated by allowing “ineligible persons”, including but not confined to those in the management who have run the company aground, to return in the new avatar of resolution applicants. Section 35(1)(f) is placed in the same continuum when the Court observes that the erstwhile promoters of a corporate debtor have no vested right to bid for the property of the corporate debtor in liquidation. The values which animate Section 29A continue to provide sustenance to the rationale underlying the exclusion of the same category of persons from the process of liquidation involving the sale of assets, by virtue of the provisions of Section 35(1)(f). More recent precedents of this Court continue to adopt a purposive interpretation of the provisions of the IBC. (See in this context the judgments in Phoenix ARC Private Limited v. Spade Financial Service34 , Ramesh Kymal v. M/s Siemens Gamesa Renewable Power Pvt Ltd.35 and Anuj Jain, Interim Resolution Professional for Jaypee Infratech Limited v. 53 The purpose of the ineligibility under Section 29A is to achieve a sustainable revival and to ensure that a person who is the cause of the problem either by a design or a default cannot be a part of the process of solution. Section 29A, it must be noted, encompasses not only conduct in relation to the corporate debtor but in relation to other companies as well. This is evident from clause (c) (“an account of a corporate debtor under the management or control of such person or of whom such person is a promoter, classified as a non-performing asset”), and clauses (e), (f), (g), (h) and (i) which have widened the net beyond the conduct in relation to the corporate debtor. 54 The prohibition which has been enacted under Section 29A has extended, as noted above, to Chapter III while being incorporated in the proviso to Section 35(1)(f). Under the Liquidation Process Regulations, Chapter VI deals with the realization of assets. Regulation 32 is in the following terms: “32. Sale of Assets, etc. C.A. No. 4050 of 2020, decided on 9 February 2021, at paragraphs 23 and 25 (e) the corporate debtor as a going concern; or (f) the business(s) of the corporate debtor as a going concern: Provided that where an asset is subject to security interest, it shall not be sold under any of the clauses (a) to (f) unless the security interest therein has been relinquished to the liquidation estate.” Clauses (a) to (d) of Regulation 32 deal with the sale of assets on a stand-alone basis in a slump sale collectively or in parcels. Clauses (e) and (f) deal with the sale of the corporate debtor or its business as a going concern. “32A. Sale as a going concern. (1) Where the committee of creditors has recommended sale under clause (e) or (f) of regulation 32 or where the liquidator is of the opinion that sale under clause (e) or (f) of regulation 32 shall maximize the value of the corporate debtor, he shall endeavor to first sell under the said clauses.” Regulation 32-A(1) emphasizes the importance placed on the transfer of the corporate debtor or its business on a going concern basis. 56 Regulation 44 allows for a period of one year for the liquidation of the corporate debtor from the liquidation commencement date. Its proviso, however, allows for an additional period up to ninety days where the sale is attempted under sub-Regulation (1) of Regulation 32A. Regulation 44 is as follows: “44. Completion of liquidation. (1) The liquidator shall liquidate the corporate debtor within a period of one year from the liquidation commencement date, notwithstanding pendency of any application for avoidance of transactions under Chapter III of Part II of the Code, before the Adjudicating Authority or any action thereof: Provided that where the sale is attempted under sub- regulation (1) of regulation 32A, the liquidation process may take an additional period up to ninety days.] (2) If the liquidator fails to liquidate the corporate debtor within 29[one year], he shall make an application to the Adjudicating Authority to continue such liquidation, along with a report explaining why the liquidation has not been completed and specifying the additional time that shall be required for liquidation.” D.2 Interplay : IBC liquidation and Section 230 of the Act of 2013 57 Section 230 of the Act of 2013 is incorporated in Chapter XV which is titled “compromise, arrangement and amalgamations”. Sub-section (1) of Section 230 “230. Power to compromise or make arrangements with creditors and members.— (1) Where a compromise or (a) between a company and its creditors or any class of them; (b) between a company and its members or any class of them, the Tribunal may, on the application of the company or of any creditor or member of the company, or in the case of a company which is being wound up, of the liquidator, order a meeting of the creditors or class of creditors, or of the members or class of members, as the case may be, to be called, held and conducted in such manner as the Tribunal directs. Explanation.—For the purposes of this sub-section, arrangement includes a reorganization of the company‘s share capital by the consolidation of shares of different classes or by the division of shares into shares of different classes, or by both of those methods.” 58 A compromise or arrangement under Sub-section (1) of Section 230 may (i) between a company and its creditors or any subset of creditors; or (ii) between a company and its members or subset of members. 59 Liquidation is one of the factual situations in which the provisions of Section 230 can be invoked. Section 230(1) can also be invoked in the case of a company which is wound up, as is evident from the statutory provision itself, which contemplates that an application may be submitted to the NCLT, acting as the Tribunal, by the liquidator. 60 Sub-section (1) of Section 230 was amended by Act 31 of 2016 with effect from 15 November 2016. Prior to the amendment, an application for compromise or arrangement could be moved before the Tribunal by: (iv) in the case of a company which is being wound up, by the liquidator. Following the amendment, Section 230(1) envisages that an application in the case of a company which is being wound up may be presented by a liquidator who has been appointed under the Act of 2013 or under the IBC. Interestingly, Section 230 (except Sub-sections (11) and (12)) came into force on 7 December 2016. Where a compromise has been entered into with only a class of creditors, it will bind that class under the provisions of Section 230(6), which reads thus: “(6) Where, at a meeting held in pursuance of sub-section (1), majority of persons representing three fourths in value of the creditors, or class of creditors or members or class of members, as the case may be, voting in person or by proxy or by postal ballot, agree to any compromise or arrangement and if such compromise or arrangement is sanctioned by the Tribunal by an order, the same shall be binding on the company, all the creditors, or class of creditors or members or class of members, as the case may be, or, in case of a company being wound up, on the liquidator and the contributories of the company.” 61 Under Sub-section (6) of Section 230, the comprise or arrangement has to be agreed to by a "majority of persons representing 3/4th in value" of the creditors, members or a class of them. Upon the sanctioning of the compromise or arrangement by the NCLT, it binds the company, all the creditors or members or a class of them, as may be, or in the case of a company being wound up, the liquidator appointed under the Act of 2013 or the IBC and the contributories. The Companies’ Act 1956 : Section 391 and Meghal Homes 62 Prior to the enforcement of the Act of 2013, the erstwhile legislation - the Act of 1956 - contained an analogous provision in Section 391. 63 The provisions of Section 391 came up for interpretation in a decision of this Court in Meghal Homes (supra). Justice PK Balasubramanyan, speaking for the two judge Bench of this Court, adverted to the earlier decision in Miheer H Mafatlal v. Mafatlal Industries Ltd.37 which had dealt with the jurisdiction of the Company Court (or the Company Law Board as it then was) while sanctioning a scheme of merger or amalgamation of two companies. The earlier decision, as this Court noted, did not involve either a transferor or transferee in liquidation. Hence, this Court did not have occasion to consider whether "any additional tests have to be satisfied when the company concerned is in liquidation and a compromise or arrangement in respect of it is proposed". Dealing specifically with a company which has been ordered to be wound up, this Court observed that the Company Court (before whom the jurisdiction under the erstwhile Section 391 was vested at the material time) had “necessarily to see whether the scheme contemplates revival of the business of the company". In that context, this Court “47. When a company is ordered to be wound up, the assets of it are put in possession of the Official Liquidator. The assets become custodia legis. The follow-up, in the absence of a revival of the company, is the realisation of the assets of the company by the Official Liquidator and distribution of the proceeds to the creditors, workers and contributories of the company ultimately resulting in the death of the company by an order under Section 481 of the Act, being passed. But, nothing stands in the way of the Company Court, before the ultimate step is taken or before the assets are disposed of, to accept a scheme or proposal for revival of the Company. In that context, the court has necessarily to see whether the scheme contemplates revival of the business of the company, makes provisions for paying off creditors or for satisfying their claims as agreed to by them and for meeting the liability of the workers in terms of Section 529 and Section 529A of the Act. Of course, the court has to see to the bona fides of the scheme and to ensure that what is put forward is not a ruse to dispose of the assets of the company in liquidation.” Moreover, the Court held that in the case of a company which has been wound up it would have to perceive aspects of public interest, commercial morality and the existence of a bona fide intent to revive the company, while considering whether a compromise or arrangement put forward under Section 391 should be accepted. While the Court would not sit in appeal over the commercial wisdom of the shareholders, "it will certainly consider whether there is a genuine attempt to revive the company that has gone into liquidation and whether such revival is in public interest and conforms to commercial morality”. On the facts of the case, the Court found that it was difficult to hold that "it is a scheme for revival of the Company, the clear statutory intention behind entertaining a proposal under Section 391". These observations of the two judge Bench in Meghal Homes (supra) have a significant bearing on the nature of a compromise or arrangement which fell within the purview of Section 391 of the Act of 1956. This Court emphasized that where a company is in liquidation, its assets are custodia legis, the liquidator being the custodian for the distribution of the liquidation estate. A compromise or arrangement in respect of a company in liquidation must foster a revival of the company, this being (as the Court termed it ) "the clear statutory intention behind entertaining a proposal under Section 391” in respect of a company in liquidation. IBC liquidation and Section 230 scheme : a statutory continuum 64 Now, there is no reference in the body of the IBC to a scheme of compromise or arrangement under Section 230 of the Act of 2013. Sub-section (1) of Section 230 was however amended with effect from 15 November 2016 so as to allow for a scheme of compromise or arrangement being proposed on the application of a liquidator who has been appointed under the provisions of the IBC. The substratum of the submission of Mr Sandeep Bajaj, learned Counsel for the appellants, is that Section 230 is not regulated by the IBC but is a provision independent of it, though after the amendment of Sub-section (1), a compromise or arrangement can be proposed by the liquidator appointed under the IBC. Aligned to this submission, he urged that the decision in Meghal Homes (supra) recognises that the liquidator is an additional person who may submit an application under Section 391 of the Act of 1956 (corresponding to Section 230 of the Act of 2013). The submission of Mr Bajaj however misses the crucial interface between the provisions of Section 230 of the Act of 2013 in their engagement with a company in respect of which the provisions of the IBC have been invoked, resulting in an order of liquidation under Section 33 of the IBC. Liquidation of the company under the IBC, as emphasized by this Court in its previous decisions, is a matter of last resort. Section 33 requires the NCLT, acting as the Adjudicating Authority, to pass an order for the liquidation of the (i) before the expiry of the insolvency resolution process period or the maximum period contemplated for its completion a resolution plan has not been received under Sub-section (6) of Section 30; or (ii) the resolution plan has been rejected under Section 31 for non-compliance with the requirements of the provision. 65 Under Sub-Section (2) of Section 33, the Adjudicating Authority has to pass a liquidation order where the resolution professional, during the CIRP but before the confirmation of the resolution plan, intimates the Adjudicating Authority of the decision of the CoC approved by not less than 66 per cent of the voting shares to liquidate the corporate debtor. Under Section 34, upon the Adjudication Authority passing an order for liquidation of the corporate debtor under Section 33, the resolution professional appointed for the CIRP under Chapter II is to act as a liquidator for the purpose of liquidation. Section 35 proceeds to stipulate that subject to the directions of the Adjudicating Authority, the liquidator shall have the powers and duties enumerated in the provision. 66 What emerges from the above discussion is that the provisions of the IBC contain a comprehensive scheme, first, for the initiation of the CIRP at the behest of financial creditor under Section 7 or at the behest of the operational creditor under Section 9 or the corporate debtor under Section 10. Chapter II provides for the appointment of an interim resolution professional38 in Section 17 and the constitution of a CoC under Section 21. Chapter II contemplates the submission of a resolution plan in Section 30 and the approval of the plan in Section 31. Liquidation forms a part of a distinct Chapter - Chapter III. Liquidation under Section 33 is contemplated in specific eventualities which are adverted to in Sub- Section (1) and Sub-section (2) as noted above. 67 Now, it is in this backdrop that it becomes necessary to revisit, in the context of the above discussion the three modes in which a revival is contemplated under the provisions of the IBC. The first of those modes of revival is in the form of the CIRP elucidated in the provisions of Chapter II of the IBC. The second mode is where the corporate debtor or its business is sold as a going concern within the purview of clauses (e) and (f) of Regulation 32. The third is when a revival is contemplated through the modalities provided in Section 230 of the Act of 2013. A scheme of compromise or arrangement under Section 230, in the context of a company which is in liquidation under the IBC, follows upon an order under Section 33 and the appointment of a liquidator under Section 34. While there is no direct recognition of the provisions of Section 230 of the Act of 2013 in the IBC, a decision was rendered by the NCLAT on 27 February 2019 in Y Shivram Prasad v. S Dhanapal39. NCLAT in the course of its decision observed that during the liquidation process the steps which are required to be taken by the liquidator include a compromise or arrangement in terms of Section 230 of the Act of 2013, so as to ensure the revival and continuance of the corporate debtor by protecting it from its management and from "a death by liquidation". The decision by NCLAT took note of the fact that while passing the order under Section 230, the Adjudicating Authority would perform a dual role: one as the Adjudicating Authority in the matter of liquidation under the IBC and the other as a Tribunal for passing an order under Section 230 of the Act of 2013. Following the decision of NCLAT, an amendment was made on 25 July 2019 to the Liquidation Process Regulations by the IBBI so as to refer to the process envisaged under Section 230 of the Act of 2013. 68 The statutory scheme underlying the IBC and the legislative history of its linkage with Section 230 of the Act of 2013, in the context of a company which is in liquidation, has important consequences for the outcome of the controversy in the present case. The first point is that a liquidation under Chapter III of the IBC follows upon the entire gamut of proceedings contemplated under that statute. The second point to be noted is that one of the modes of revival in the course of the liquidation process is envisaged in the enabling provisions of Section 230 of the Act of 2013, to which recourse can be taken by the liquidator appointed under Section 34 of the IBC. The third point is that the statutorily contemplated 2019 SCC OnLine NCLAT 172; herein, referred to as “Y Shivram Prasad” activities of the liquidator do not cease while inviting a scheme of compromise or arrangement under Section 230. The appointment of the liquidator in an IBC liquidation is provided in Section 34 and their duties are specified in Section 35. In taking recourse to the provisions of Section 230 of the Act of 2013, the liquidator appointed under the IBC is , above all, to attempt a revival of the corporate debtor so as to save it from the prospect of a corporate death. The consequence of the approval of the scheme of revival or compromise, and its sanction thereafter by the Tribunal under Sub-section (6), is that the scheme attains a binding character upon stakeholders including the liquidator who has been appointed under the IBC. In this backdrop, it is difficult to accept the submission of Mr Bajaj that Section 230 of the Act of 2013 is a standalone provision which has no connect with the provisions of the IBC. Undoubtedly, Section 230 of the Act of 2013 is wider in its ambit in the sense that it is not confined only to a company in liquidation or to corporate debtor which is being wound up under Chapter III of the IBC. Obviously, therefore, the rigors of the IBC will not apply to proceedings under Section 230 of the Act of 2013 where the scheme of compromise or arrangement proposed is in relation to an entity which is not the subject of a proceeding under the IBC. But, when, as in the present case, the process of invoking the provisions of Section 230 of the Act of 2013 traces its origin or, as it may be described, the trigger to the liquidation proceedings which have been initiated under the IBC, it becomes necessary to read both sets of provisions in harmony. A harmonious construction between the two statutes40 would ensure that while on the one hand a scheme of compromise G.P. Singh, Principles of Statutory Interpretation (1 edn., Lexis Nexis 2015) which notes that “Further, these or arrangement under Section 230 is being pursued, this takes place in a manner which is consistent with the underlying principles of the IBC because the scheme is proposed in respect of an entity which is undergoing liquidation under Chapter III of the IBC. As such, the company has to be protected from its management and a corporate death. It would lead to a manifest absurdity if the very persons who are ineligible for submitting a resolution plan, participating in the sale of assets of the company in liquidation or participating in the sale of the corporate debtor as a ‘going concern’, are somehow permitted to propose a compromise or arrangement under Section 230 of the Act of 2013. 69 The IBC has made a provision for ineligibility under Section 29A which operates during the course of the CIRP. A similar provision is engrafted in Section 35(1)(f) which forms a part of the liquidation provisions contained in Chapter III as well. In the context of the statutory linkage provided by the provisions of Section 230 of the Act of 2013 with Chapter III of the IBC, where a scheme is proposed of a company which is in liquidation under the IBC, it would be far-fetched to hold that the ineligibilities which attach under Section 35(1)(f) read with Section 29A would not apply when Section 230 is sought to be invoked. principles [referring to the principle of harmonious construction] have also been applied in resolving a conflict between two different Acts” and providing the following examples – “Jogendra Lal Saha v. State of Bihar, 1991 Supp (2) SCC 654 (Sections 82 and 83 of the Forest Act, 1927 are special provisions which prevail over the provisions in the Sale of Goods Act ); Jasbir Singh v. Vipin Kumar Jaggi, (2001) 8 SCC 289 (Section 64 of NDPS Act will prevail over section 307 CrPC 1974 as it is a special provision in a Special Act which is also later); P.V. Hemlatha v. Kattam Kandi Puthiya Maliackal Saheeda, (2002) 5 SCC 548 (conflict between section 23 of the Travancore Cochin High Court Act and section 98(3) Civil Procedure Code resolved by holding the latter to be special law); Talchar Municipality v. Talcher Regulated Market Committee, (2004) 6 SCC 178 (Section 4(4) of the Orissa Agricultural Produce Markets Act, 1956 was held to prevail over section 295 of the Orissa Municipalities Act, 1950 as the former was a special provision and also started with a non-obstante clause); and Iridium India Telecom Ltd. v. Motorola Inc, (2005) 2 SCC 145 (Letters Patent and rules made under it constitute special law for the High Court concerned and are not displaced by the general provisions of the Civil Such an interpretation would result in defeating the provisions of the IBC and must be eschewed. 70 An argument has also been advanced by the appellants and the petitioners that attaching the ineligibilities under Section 29A and Section 35(1)(f) of the IBC to a scheme of compromise and arrangement under Section 230 of the Act of 2013 would be violative of Article 14 of the Constitution as the appellant would be “deemed ineligible” to submit a proposal under Section 230 of the Act of 2013. We find no merit in this contention. As explained above, the stages of submitting a resolution plan, selling assets of a company in liquidation and selling the company as a going concern during liquidation, all indicate that the promoter or those in the management of the company must not be allowed a back-door entry in the company and are hence, ineligible to participate during these stages. Proposing a scheme of compromise or arrangement under Section 230 of the Act of 2013, while the company is undergoing liquidation under the provisions of the IBC lies in a similar continuum. Thus, the prohibitions that apply in the former situations must naturally also attach to the latter to ensure that like situations are treated equally. 71 A crucial limb of the submissions which have been urged by Mr Sandeep Bajaj and Mr Shiv Shankar Banerjee, learned Counsel appearing for the appellants and the petitioner is that both Section 12-A of the IBC and Section 230 of the Act of 2013 belong to what is described as the “settlement mechanism” which is distinct from the “resolution mechanism”. The corporate debtor, it has been urged, will proceed to liquidation if no resolution is possible. Section 29A was designed to prevent a back-door entry to a class of persons considered to be ineligible to participate in the resolution process. Section 35(1)(f) extends the ineligibility where the liquidator is conducting a sale of the assets of the corporate debtor in liquidation. It has been submitted in this context that where an application for withdrawal under Section 12-A is allowed, the company reverts to the promoter. Placing a scheme under Section 230 of the Act of 2013 on the same pedestal, it has been urged that there is no reason to prevent a person who falls in the class of those ineligible under Section 29A from submitting a scheme of compromise or arrangement under Section 230 of the Act of 2013. In order to amplify the line of submissions as recorded above, the following points have (i) Though eight amendments have been brought about to the IBC between November 2017 and September 2020, the ineligibility contemplated by Section 29A and Section 35(1)(f) has not been expressly incorporated in Section 230 of the Act of 2013 even after the amendment to the IBC; (ii) Under Section 230, the persons competent to submit a scheme are (c) a member. Section 230 does not prohibit a promoter or a person belonging to the ex- management, from proposing a scheme of compromise or arrangement. This creates a “front door opportunity” to the erstwhile management to (iii) Under Section 30(1) of the IBC, a resolution plan can be submitted by a person who is not ineligible with reference to Section 29A. Under Sub- section (4) of Section 30, for the approval of the resolution plan, a 66 per cent voting share only of the financial creditors is required. Sub-section 2(b) of Section 30 requires the resolution professional to examine whether the resolution plan provides for the payment of the debt of operational creditors which shall not be less than the amount which is payable to them in the event of liquidation. On the other hand, the provisions of Section 230 of the Act of 2013 are far more stringent in that they require a voting share of 75 per cent and, where the company is in liquidation, a settlement with all creditors including the operational creditors; (iv) Section 35(1)(f) applies to the liquidator but does not apply to the NCLT, acting as either the Adjudicating Authority or as the Tribunal; (v) A resolution plan upon being approved becomes binding on all stakeholders and is attended with all benefits unlike Section 230 of the Act (vi) Under Regulation 32 of the Liquidation Process Regulations, two modes are contemplated for the sale of the corporate debtor as a ‘going concern’, while four modes are contemplated for the sale of the assets of the corporate debtor. The prohibition under Section 35(1)(f) will apply only to a sale which is governed by Regulation 32, and will have no application to a scheme of compromise or arrangement which is proposed under Section (vii) There is no mechanism in the IBC for effecting a compromise or arrangement, and since the only provision is contained in Section 230, there is no inconsistency with the IBC. 72 Section 12A41 of the IBC was inserted with effect from 6 June 2018 by Amending Act 26 of 2018. Under Section 12A, the Adjudicating Authority may allow the withdrawal of an application which is admitted under Sections 7, 9 and 10, on an application made by the applicant with the approval of a 90 per cent voting share of the CoC in such manner as may be specified. Rule 8 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 201642, on the other hand, contemplates that the NCLT, functioning as the Adjudicating Authority, may permit a withdrawal of an application made under Rule 4 (by the financial creditor), Rule 6 (by the operational creditor) or Rule 7 (by the corporate applicant) on the request made by the applicant before its admission. Regulation 30-A of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 contains provisions for the withdrawal of an application. Under Regulation 30-A43, as it originally stood, an “12A. Withdrawal of application admitted under section 7, 9 or 10 - The Adjudicating Authority may allow the withdrawal of application admitted under section 7 or section 9 or section 10, on an application made by the applicant with the approval of ninety per cent. voting share of the committee of creditors, in such manner as may be specified.” “30A. Withdrawal of Application- (1) An application for withdrawal under section 12A shall be submitted to the interim resolution professional or the resolution professional, as the case may be, in Form FA of the Schedule before issue of invitation for expression of interest under regulation 36A. application for withdrawal under Section 12-A was required to be submitted before the issuance of an invitation for the expression of interest under Regulation 36-A. In the decision of this Court in Swiss Ribbons (supra), which was rendered on 25 January 2019, it was contemplated that an application for withdrawal may be presented between the period commencing from the admission of the application and the date of the constitution of the CoC. This led to the substitution of the Regulation 30-A44 on 25 July 2019. As substituted, Regulation 30-A stipulates that an application for withdrawal under Section 12-A (2) The application in sub-regulation (1) shall be accompanied by a bank guarantee towards estimated cost incurred for purposes of clauses (c) and (d) of regulation 31 till the date of application. (3) The committee shall consider the application made under sub-regulation (1) within seven days of its constitution or seven days of receipt of the application, whichever is later. (4) Where the application is approved by the committee with ninety percent voting share, the resolution professional shall submit the application under sub-regulation (1) to the Adjudicating Authority on behalf of the applicant, within three days of such approval. (5) The Adjudicating Authority may, by order, approve the application submitted under sub-regulation (4).” “30A. Withdrawal of Application- (1) An application for withdrawal under section 12A may be made to the (a) before the constitution of the committee, by the applicant through the interim resolution professional; (b) after the constitution of the committee, by the applicant through the interim resolution professional or the resolution professional, as the case may be: Provided that where the application is made under clause (b) after the issue of invitation for expression of interest under regulation 36A, the applicant shall state the reasons justifying withdrawal after issue of such invitation. (2) The application under sub-regulation (1) shall be made in Form FA of the Schedule accompanied by a bank (a) towards estimated expenses incurred on or by the interim resolution professional for purposes of regulation 33, till the date of filing of the application under clause (a) of sub-regulation (1); or (b) towards estimated expenses incurred for purposes of clauses (aa), (ab), (c) and (d) of regulation 31, till the date of filing of the application under clause (b) of sub-regulation (1). (3) Where an application for withdrawal is under clause (a) of sub-regulation (1), the interim resolution professional shall submit the application to the Adjudicating Authority on behalf of the applicant, within three days of its receipt. (4) Where an application for withdrawal is under clause (b) of sub-regulation (1), the committee shall consider the application, within seven days of its receipt. (5) Where the application referred to in sub-regulation (4) is approved by the committee with ninety percent voting share, the resolution professional shall submit such application along with the approval of the committee, to the Adjudicating Authority on behalf of the applicant, within three days of such approval. (6) The Adjudicating Authority may, by order, approve the application submitted under sub-regulation (3) or (5). (7) Where the application is approved under sub-regulation (6), the applicant shall deposit an amount, towards the actual expenses incurred for the purposes referred to in clause (a) or clause (b) of sub-regulation (2) till the date of approval by the Adjudicating Authority, as determined by the interim resolution professional or resolution professional, as the case may be, within three days of such approval, in the bank account of the corporate debtor, failing which the bank guarantee received under sub-regulation (2) shall be invoked, without prejudice to any other action permissible against the applicant under the Code.” (a) before the constitution of the CoC, by the applicant through the IRP; (b) after the constitution of the CoC, by the applicant through the IRP or the RP as the case may be. However, where the application under clause (b) is made after the issuance of the invitation for expression of interest, the applicant has to state the reasons justifying withdrawal after the issuance of the invitation. In the decision of this Court in Brilliant Alloys (supra), it has been held that a withdrawal may be contemplated even after the issuance of invitation of expression of interest. In Swiss Ribbons (supra), the provisions of Section 12-A were upheld against the challenge that they violated Article 14 of the Constitution. Justice Rohinton F Nariman, while adverting to the decision in Brilliant Alloys (supra), noted that Regulation 30-A(1) has been held not to be mandatory but directory because in a given case an application for withdrawal may be allowed for exceptional reasons even after issuance of an invitation for expression of interest under Section 36-A. Dealing with the provisions of Section 12-A, this Court “82. It is clear that once the Code gets triggered by admission of a creditor's petition under Sections 7 to 9, the proceeding that is before the adjudicating authority, being a collective proceeding, is a proceeding in rem. Being a proceeding in rem, it is necessary that the body which is to oversee the resolution process must be consulted before any individual corporate debtor is allowed to settle its claim.· A question arises as to what is to happen before a Committee of Creditors is constituted (as per the timelines that are specified, a Committee of Creditors can be appointed at any time within 30 days from the date of appointment of the interim resolution professional). We make it clear that at any stage where the Committee of Creditors is not yet constituted, a party can approach NCLT directly, which Tribunal may, in exercise of its inherent powers under Rule 11 of NCLT Rules, 2016, allow or disallow an application for withdrawal or settlement. This will be decided after hearing all the parties concerned and considering all relevant factors on the facts of each case. 83. The main thrust against the provision of Section 12-A is the fact that ninety per cent of the Committee of Creditors has to allow withdrawal. This high threshold has been explained in the ILC Report as all financial creditors have to put their heads together to allow such withdrawal as, ordinarily, an omnibus settlement involving all creditors ought, ideally, to be entered into . This explains why ninety per cent, which is substantially all the financial creditors, have to grant their approval to an individual withdrawal or settlement. In any case, the figure of ninety per cent, in the absence of anything further to show that it is arbitrary, must pertain to the domain of legislative policy, which has been explained by the Report (supra). Also, it is clear, that under Section 60 of the Code, the Committee of Creditors do not have the last word on the subject. If the Committee of Creditors arbitrarily rejects a just settlement and/or withdrawal claim, NCLT, and thereafter, NCLAT can always set aside such decision under Section 60 of the Code. For all these reasons, we are of the view that Section 12-A also passes constitutional muster.” Distinction between a withdrawal simpliciter and scheme of 73 The submission is that on the withdrawal of the application under Sections 7, 9 and 10, as the case may be, the company goes back to the same promoter in spite of such a promoter being ineligible under Section 29A for submitting a resolution plan. As such, it was urged that there is no reason or justification then to preclude a promoter from presenting a scheme of compromise or arrangement under Section 230. 74 There is a fundamental fallacy in the submission. An application for withdrawal under Section 12-A is not intended to be a culmination of the resolution process. This, as the statutory scheme would indicate, is at the inception of the process. Rule 8 of the Adjudicating Authority Rules, as we have seen earlier, contemplates a withdrawal before admission. Section 12-A subjects a withdrawal of an application, which has been admitted under Sections 7, 9 and 10, to the requirement of an approval of ninety per cent voting shares of the CoC. The decision of this Court in Swiss Ribbons (para 82 extracted above) stipulates that where the CoC has not yet been constituted, the NCLT, functioning as the Adjudicating Authority, may be moved directly for withdrawal which, in the exercise of its inherent powers under Rule 11 of the Adjudicating Authority Rules, may allow or disallow the application for withdrawal or settlement after hearing the parties and considering the relevant factors on the facts of each case. A withdrawal in other words is by the applicant. The withdrawal leads to a status quo ante in respect of the liabilities of the corporate debtor. A withdrawal under Section 12-A is in the nature of settlement, which has to be distinguished both from a resolution plan which is approved under Section 31 and a scheme which is sanctioned under Section 230 of the Act of 2013. A resolution plan upon approval under Section 31(1) of the IBC is binding on the corporate debtor, its employees, members, creditors (including the central and state governments), local authorities, guarantors and other stakeholders. The approval of a resolution plan under Section 31 results in a “clean slate,” as held in the judgment of this Court in Committee of Creditors of Essar Steel India Limited v. Satish Kumar Gupta45. Justice Rohinton F Nariman, speaking for the three judge Bench of this “105. Section 31(1) of the Code makes it clear that once a resolution plan is approved by the Committee of Creditors it shall be binding on all stakeholders, including guarantors. This is for the reason that this provision ensures that the successful resolution applicant starts running the business of the corporate debtor on a fresh slate as it were. In SBI v. V. Ramakrishnan [SBI v. V. Ramakrishnan, (2018) 17 SCC 394 : (2019) 2 SCC (Civ) 458] , this Court relying upon Section 31 “25. Section 31 of the Act was also strongly relied upon by the respondents. This section only states that once a resolution plan, as approved by the Committee of Creditors, takes effect, it shall be binding on the corporate debtor as well as the guarantor. This is for the reason that otherwise, under Section 133 of the Contract Act, 1872, any change made to the debt owed by the corporate debtor, without the surety's consent, would relieve the guarantor from payment. Section 31(1), in fact, makes it clear that the guarantor cannot escape payment as the resolution plan, which has been approved, may well include provisions as to payments to be made by such guarantor. This is perhaps the reason that Annexure VI(e) to Form 6 contained in the Rules and Regulation 36(2) referred to above, require information as to personal guarantees that have been given in relation to the debts of the corporate debtor. Far from supporting the stand of the respondents, it is clear that in point of fact, Section 31 is one more factor in favour of a personal guarantor having to pay for debts due without any moratorium applying to save him.”” “107. For the same reason, the impugned NCLAT judgment [Standard Chartered Bank v. Satish Kumar Gupta, 2019 SCC OnLine NCLAT 388] in holding that claims that may exist apart from those decided on merits by the resolution professional and by the Adjudicating Authority/Appellate Tribunal can now be decided by an appropriate forum in terms of Section 60(6) of the Code, also militates against the rationale of Section 31 of the Code. A successful resolution applicant cannot suddenly be faced with “undecided” claims after the resolution plan submitted by him has been accepted as this would amount to a hydra head popping up which would throw into uncertainty amounts payable by a prospective resolution applicant who would successfully take over the business of the corporate debtor. All claims must be submitted to and decided by the resolution professional so that a prospective resolution applicant knows exactly what has to be paid in order that it may then take over and run the business of the corporate debtor. This the successful resolution applicant does on a fresh slate, as has been reasons, NCLAT judgment must also be set aside on this count.” 75 The benefit under Section 31, following upon the approval of the resolution plan, is that the successful resolution applicant starts running the business of the corporate debtor on “a fresh slate”. The scheme of compromise or arrangement under Section 230 of the Act of 2013 cannot certainly be equated with a withdrawal simpliciter of an application, as is contemplated under Section 12-A of the IBC. A scheme of compromise or arrangement, upon receiving sanction under Sub-section (6) of Section 230, binds the company, its creditors and members or a class of persons or creditors as the case may be as well as the liquidator (appointed under the Act of 2013 or the IBC). Both, the resolution plan upon being approved under Section 31 of the IBC and a scheme of compromise or arrangement upon being sanctioned under Sub-section (6) of Section 230, represent the culmination of the process. This must be distinguished from a mere withdrawal of an application under Section 12-A. There is a clear distinction between these processes, in terms of statutory context and its consequences and the latter cannot be equated with the former. 76 Additionally, there is no merit in the submission that Section 35(1)(f) applies only to a liquidator who conducts a sale of the property of the corporate debtor in liquidation but not to the NLCT, acting as the Tribunal, when it exercises its powers under Section 230 of the Act of 2013. The liquidator appointed under the provisions of Chapter III of the IBC is entrusted with several powers and duties. Sections 37 to 42 of the IBC are illustrative of the powers of the liquidator in the course of the liquidation. The liquidator exercises several functions which are of a quasi-judicial in nature and character. Section 35(1) itself enunciates that the powers and duties which are entrusted to the liquidator are “subject to the directions of the adjudicating authority”. The liquidator, in other words, exercises functions which have been made amenable to the jurisdiction of the NCLT, acting as the Adjudicating Authority. To hold therefore that the ineligibility prescribed under the provisions of Section 35(1)(f) can be disregarded by the Tribunal for the purpose of considering an application for a scheme of compromise or arrangement under Section 230 of the Act of 2013, in respect of a company which is under liquidation under the IBC, would not be a correct construction of the provisions of law. D.4 Constitutional validity of Regulation 2B - Liquidation Process 77 Regulation 2B(1) introduced on 25 July 2019 provides that where a compromise or arrangement is proposed under Section 230 of the Act of 2013, it shall be completed within ninety days of the order of liquidation under sub- Sections (1) and (4) of Section 33. The proviso to Regulation 2B has been inserted with effect from 6 January 2020 to stipulate that a person who is not eligible under the IBC to submit a resolution plan for insolvency resolution of the corporate debtor shall not be a party in any manner to such compromise or arrangement. 78 IBBI initially brought out a discussion paper on 27 April 2019. Para 3.1 of “3.1 Compromise or arrangement under Section 230 of the Companies Act 2013. If there is a proposal for a compromise or arrangement, a member, a creditor or the Liquidator may make an application to the NCLT under the Compromise Act 2013 (Act) (not the Adjudicating Authority under the Code) and then proceed in the manner directed by the NCTL in accordance with the Act. While compromise or arrangement under Section 230 of the Act is proposed, it must be utilize first and only on its closure/ failure, liquidation under the Code may commence. The Code read with regulations may provide that where a credible proposal is made to the Liquidator under Section 230 of the Act for compromise or arrangement of the CD within seven days of the order under Section 33 of the Code for liquidation, the Liquidator shall file an application under the said section within ten days of the order of liquidation under Section 33 of the Code. A member or a creditor may file an application under Section 230 of the Act within 10 days of the order of liquidation. If approved by the NCLT, the Liquidator shall complete the process under Section 230 within 90 days of the order of liquidation. The Regulations may provide that liquidation process under the Coe shall commence at the earlier of the four events: (a) there is no proposal for compromise or arrangement (b) the NCLT does not approve the application under (c) the process under Section 230 is not completed within 90 days or such extended period as may be allowed by the (d) the process under Section 230 is not sanctioned under Section 230(6) of the Act. A tight time schedule is necessary for conclusion of the process for compromise or arrangement to ensure that the liquidation process is concluded without undue delay.” 79 IBBI noted in its discussion paper that the introduction of ineligibilities stipulated under Section 29-A of the IBC to Section 230 of the Act of 2013 would pose practical difficulties in its implementation. IBBI observed: “3.3.3 Ineligibility: Proviso to section 35(1)(f) of the Code mandates that the Liquidator shall not sell the immovable and movable property or actionable claims of the CD in liquidation to any person who is not eligible to be a resolution applicant. This prohibits GCS to persons ineligible under section 29A. However, the law does not prohibit such ineligible persons to participate in compromise or arrangement under section 230 of the Act. It may be necessary to harmonise the provisions in the Code and the Act to provide level playing field. Some stakeholders feel that the ineligibility norms under section 29A of the Code may also apply to compromise or arrangement under section 230 of the Act. Other stakeholders feel that unlike liquidation under the Code, which is mostly Liquidator driven, the compromise or arrangement under the Act is mostly driven by the Tribunal. Further, section 29A of the Code has several exceptions, while section 230 of the Act deals with all kinds of companies in all situations. There will be practical difficulties in implementation of ineligibility for the purposes of section 230 of the Act. Therefore, it is proposed that the ineligibility norms under section 29A of the Code may not apply to compromise or arrangement under section 230 of the Act.” Be that as it may, the IBBI solicited public comments on its proposals. The IBBI evolved its view on the issue of whether Section 29-A should be made applicable to Section 230 of the Act of 2013 in its subsequent discussion paper. 80 The discussion paper brought out on 3 November 2019 by IBBI discussed the applicability of Section 29A of the IBC to a compromise and arrangement under Section 230 of the Act of 2013. The discussion paper notes that there were many instances where the NCLAT had allowed the application under Section 230 of the Act of 2013. In that context, the discussion paper notes thus: “21. Section 29 A of the Code prohibits certain persons from becoming a resolution applicant/ submitting a resolution plan in a CIRP. Proviso to section 35(1)(f) of the Code mandates that a Liquidator shall not sell the immoveable and moveable property or actionable claims of the CD in liquidation to any person who is not eligible to be a resolution applicant. These provisions were inserted in the Code with effect from 23rd November, 2017, while section 230 of the Act was amended along with the enactment of the Code. There is no explicit prohibition on persons ineligible to submit resolution plans under section 29A from proposing compromise or arrangement made under Section 230 of the Act, which may result in person ineligible under section 29A acquiring control of the CD. Thus, while section 29A of the Code is applicable to a CD when it is under CIRP and when it is under Liquidation Process, it is not applicable to the same CD when it is undergoing compromise or arrangement, in between CIR process and liquidation process. This has created an anomaly that section 29A is applicable during the stage before and the stage after compromise and arrangement and not during compromise and arrangement. 22. Section 29A of the Code keeps out a person, who is a wilfull defaulter, who has an account with non-performing assets for a long period, etc. and therefore, is likely to be a risk to a successful resolution of insolvency of a company. This rationale equally applies to the stage of compromise or arrangement. Non-applicability of section 29A at the stage of compromise or arrangement may undermine the process and may reward unscrupulous persons at the expense of creditors. Thus, it may be necessary to harmonise the provisions in the Code and the Act to provide level playing field.” 81 The discussion paper also notes that it was necessary to have a discussion on the following amongst other issues: “f. Should the persons ineligible under section 29A of the Code to be a resolution applicant be barred from becoming a party in compromise or arrangements under section 230 of g. Or, should applicability of section 230 of the companies act, 2013 during liquidation process under the Coe be reviewed?” 82 Thereafter, public comments were invited. The discussion paper is what it professes to be – a matter for discussion in the public realm. This cannot be held to constitute an admission of IBBI that an applicant who is ineligible under Section 29A may submit a scheme of compromise or arrangement under Section 230 of the Act of 2013. The validity of the provisions of Regulation 2B, more specifically the proviso, has to be considered on their own footing. 83 The powers and functions entrusted to IBBI are specified in Section 196 of the IBC. Section 196(1)(t) provides IBBI with the power to frame regulations, as “(t) make regulations and guidelines on matters relating to insolvency and bankruptcy as may be required under this Code, including mechanism for time bound disposal of the assets of the corporate debtor or debtor; and” Clause (t) empowers IBBI to make regulations and guidelines on matters relating to insolvency and bankruptcy, as may be required under the IBC. Section 240(1) empowers IBBI with the power to make regulations in the “(1) The Board may, by notification, make regulations consistent with this Code and the rules made thereunder, to carry out the provisions of this Code.” Under Sub-Section (1) of Section 240, the power to frame regulations is conditioned by two requirements: first, the regulations have to be consistent with the provisions of the IBC and the rules framed by the Central Government; and second, the regulations must be to carry out the provisions of the IBC. Regulation 2B meets both the requirements, of being consistent with the provisions of IBC and of being made in order to carry out the provisions of the IBC, for the reasons discussed earlier in this judgment. 84 The principal ground of challenge to Regulation 2B is that the regulation transgressed the authority of IBBI by introducing a disqualification or ineligibility in regard to the presentation of an application for a scheme of compromise or arrangement under Section 230 of the Act of 2013. It has been urged that IBBI, as an entity constituted by the IBC, had no statutory jurisdiction to amend the provisions of Section 230 of the Act of 2013 or to impose a restriction which operates under the purview of Section 230. The position in our view can be considered from two perspectives, independent of the provisions of Regulation 2B. We have indicated in the discussion earlier that even in the absence of the Regulation 2B, a person ineligible under Section 29A read with Section 35(1)(f) is not permitted to propose a scheme for revival under Section 230, in the case of a company which is undergoing a liquidation under the IBC. We have come to the conclusion, as noted for the reasons indicated earlier, that in the case of a company which is undergoing liquidation pursuant to the provisions of Chapter III of the IBC, a scheme of compromise or arrangement proposed under Section 230 is a facet of the liquidation process. The object of the scheme of compromise or arrangement is to revive the company. The principle was enunciated in the decision in Meghal Homes (supra) while construing the provisions of erstwhile Section 391. The same rationale which permeates the resolution process under Chapter II (by virtue of the provisions of Section 29A) permeates the liquidation process under Chapter III (by virtue of the provisions of Section 35(1)(f)). That being the position, there can be no manner of doubt that the proviso to Regulation 2B is clarificatory in nature. Even absent the proviso, a person who is ineligible under Section 29A would not be permitted to propose a compromise or arrangement under Section 230 of the Act of 2013. We therefore do not find any merit in the challenge to the validity of Regulation 2B. 85 In paragraph 24 of our judgment, we noted the two issues which had been framed by the NCLAT in the impugned judgment in the first of the appeals. The first issue was “Whether in a liquidation proceeding under [IBC] the Scheme for Compromise and Arrangement can be made in terms of Sections 230 to 232 of the [Act of 2013]”. While we noted in paragraph 25, that no challenge has been made by the appellant in regard to the finding of the NCLAT on this issue, it is imperative for us to make some remarks in relation to this issue and the larger issue of judicial intervention by the NCLT and NCLAT while adjudicating disputes under the IBC. 86 To begin with, we would like to take note of the observations made by the Insolvency Law Committee in its Report of February 202046. The Committee began by acknowledging that the floating of schemes of compromise or arrangement under Sections 230 to 232 of the Act, even for companies undergoing liquidation, was not part of the framework under the IBC. This, the Committee noted, had led to a multiplicity of issues including, but not limited to, the duality of the role of the NCLT (as a supervisory Adjudicatory Authority under the IBC versus the driving Tribunal under the Act of 2013) and indeed the very question before us in this case, whether the disqualification under Section 29A and proviso to Section 35(1)(f) of the IBC also attaches to Section 230 of the Act of 2013. However, the Committee notes that judicial intervention by the NCLAT along with the IBBI’s introduction of new regulations have led to some alignment in the two frameworks. 87 The Committee thereafter notes that the introduction of such schemes into the framework of the IBC may be worrisome since it will alter the incentives during the CIRP and lead to destructive delays, which often plagued the process under the Sick Industrial Companies (Special Provisions) Act, 1985.47 However, it Available at <https://ibbi.gov.in/uploads/resources/c6cb71c9f69f66858830630da08e45b4.pdf> accessed on 10 Ibid, at para 4.5. nonetheless also acknowledges the benefits such schemes may have to offer48. Even so, the Committee concludes by noting that such schemes, if at all they are to be brought in, should not be under the Act of 2013 but the IBC itself. The “4.6…However, the Committee was of the view that such a process for compromise or settlement need not be effected only through the schemes mechanism under the Companies Act, 2013, and felt that the liquidator could be given the power to effect a compromise or settlement with specific creditors with respect to their claims against the corporate debtor under the Code. 4.7 Given the incompatibility of schemes of arrangement and the liquidation process, the Committee recommended that recourse to Section 230 of the Companies Act, 2013 for effecting schemes of arrangement or compromise should not be available during liquidation of the corporate debtor under the Code. However, the Committee felt that an appropriate process to allow the liquidator to effect a compromise or settlement with specific creditors should be devised under the Code.” 88 Due to the ambiguity in the application of the two frameworks, it became imperative that a clarification be issued in this regard. The introduction of the proviso to Regulation 2B was a step in this direction which sought to clarify the position with respect to the applicability of the disqualifications set out in Section 29A of the IBC to Section 230 of the Act of 2013 in tandem with the legislative intendment. Ibid, para 4.6; In the Indian context, see Umakanth Varottil, ‘The Scheme of Arrangement as a Debt Restructuring Tool in India: Problems and Prospects’ (March 2017) NUS Working Paper 2017/005 available at 89 At this juncture, it is important to remember that the explicit recognition of the schemes under Section 230 into the liquidation process under the IBC was through the judicial intervention of the NCLAT in Y Shivram Prasad (supra). Since the efficacy of this arrangement is not challenged before us in this case, we cannot comment on its merits. However, we do take this opportunity to offer a note of caution for the NCLT and NCLAT, functioning as the Adjudicatory Authority and Appellate Authority under the IBC respectively, from judicially interfering in the framework envisaged under the IBC. As we have noted earlier in the judgment, the IBC was introduced in order to overhaul the insolvency and bankruptcy regime in India. As such, it is a carefully considered and well thought out piece of legislation which sought to shed away the practices of the past. The legislature has also been working hard to ensure that the efficacy of this legislation remains robust by constantly amending it based on its experience. Consequently, the need for judicial intervention or innovation from the NCLT and NCLAT should be kept at its bare minimum and should not disturb the foundational principles of the IBC. This conscious shift in their role has been noted in the report of the Bankruptcy Law Reforms Committee (2015) in the “An adjudicating authority ensures adherence to the At all points, the adherence to the process and compliance with all applicable laws is controlled by the adjudicating authority. The adjudicating authority gives powers to the insolvency professional to take appropriate action against the directors and management of the entity, with recommendations from the creditors committee. All material actions and events during the process are recorded at the adjudicating authority. The adjudicating authority can assess and penalise frivolous applications. The adjudicator hears allegations of violations and fraud while the process is on. The adjudicating authority will adjudicate on fraud, particularly during the process resolving bankruptcy. Appeals/actions against the behaviour of the insolvency professional are directed to the Regulator/Adjudicator.” 90 Once again, we must clarify that our observations here are not on the merits of the issue, which has not been challenged before us, but only limited to serve as guiding principles to the benches of NCLT and NCLAT adjudicating disputes under the IBC, going forward. 91 Based on the above analysis, we find that the prohibition placed by the Parliament in Section 29A and Section 35(1)(f) of the IBC must also attach itself to a scheme of compromise or arrangement under Section 230 of the Act of 2013, when the company is undergoing liquidation under the auspices of the IBC. As such, Regulation 2B of the Liquidation Process Regulations, specifically the proviso to Regulation 2B(1), is also constitutionally valid. For the above reasons, we have come to the conclusion that there is no merit in the appeals and the writ petition. The civil appeals and writ petition are accordingly dismissed. 92 Pending application(s), if any, stand disposed of.
The Supreme Court recently decided that a person who is not allowed to submit a rescue plan for a struggling company under one law (Section 29A of the Insolvency Bankruptcy Code) also cannot suggest a different kind of recovery plan under another law (Section 230 of the Companies Act, 2013). The judges, Justices DY Chandrachud and MR Shah, also confirmed that certain rules made by the Insolvency and Bankruptcy Board of India in 2016 are legal. These rules state that anyone not allowed to propose a rescue plan under the first law cannot be involved in any way with these other recovery plans either. The Court made these observations while rejecting appeals against earlier decisions by the National Company Law Appellate Tribunal. They also dismissed a formal challenge questioning the legality of Regulation 2B of the Liquidation Process Regulations. In the cases heard by the National Company Law Tribunal (NCLT) before this, it was already decided that someone ineligible under Section 29A of the Insolvency Bankruptcy Code to propose a rescue plan is also barred from suggesting a recovery plan under Section 230 of the Companies Act, 2013. The Supreme Court judges explained, "It would be clearly illogical if the very people who are not allowed to submit a rescue plan, participate in selling the company's assets, or buy the company as an ongoing business, were somehow permitted to suggest a compromise or arrangement under Section 230 of the Act of 2013." After looking at past legal decisions and rules from both the Insolvency Bankruptcy Code (IBC) and the Companies Act 2013, the Court made several important points in paragraph 68 of its judgment: The way the IBC law is set up, and its history of connecting with Section 230 of the Companies Act, especially for companies being shut down, is very important for this case. First, when a company goes through the shutdown process under the IBC, it follows a full series of steps required by that law. Second, one way to try and save a company during its shutdown is through the rules of Section 230 of the Companies Act, which the appointed liquidator (the person managing the shutdown) can use. Third, the liquidator's legal duties do not stop when they invite suggestions for a compromise or arrangement under Section 230. The liquidator's role and duties are clearly defined in the IBC. When using Section 230 of the Companies Act, the liquidator's main goal is to try and revive the company to prevent it from completely failing. If a rescue plan is approved and then officially sanctioned by the Tribunal, everyone involved, including the liquidator, must follow it. Because of this, it's hard to agree with the argument that Section 230 of the Companies Act is a separate rule with no connection to the IBC. While Section 230 is indeed broader and can apply to companies not involved in IBC proceedings, its strict rules wouldn't apply in those cases. However, when the reason for using Section 230 comes from a company already going through a shutdown under the IBC, then both sets of laws must be understood together. This way, while a rescue plan under Section 230 is being worked on, it aligns with the main ideas of the IBC, since the plan is for a company that is currently being shut down under the IBC. This ensures the company is protected from its old management and from failing completely. It would be truly absurd if the same people who are not allowed to submit a rescue plan, buy company assets during shutdown, or buy the company as a whole business, could somehow propose a compromise or arrangement under Section 230 of the Companies Act, 2013. The court also disagreed with the argument that linking the disqualifications under Section 29A and Section 35(1)(f) of the IBC to rescue plans under Section 230 of the Companies Act 2013 would violate the constitutional right to equality (Article 14). The appellant had argued that this would make them "considered ineligible" to submit a proposal under Section 230. The court stated, "We found no merit in this argument. As explained earlier, all the steps involved—submitting a rescue plan, selling a company's assets during shutdown, and selling the company as an ongoing business—show that the person who started the company or its previous management should not be allowed to get back in through a 'back-door' method. That's why they are not allowed to participate during these stages. Suggesting a compromise or arrangement under Section 230 of the Companies Act, while the company is being shut down under the IBC, is part of this same continuous process. Therefore, the bans that apply in the earlier situations must also apply to the later ones to make sure similar situations are treated fairly." The court also rejected the argument that Section 35(1)(f) only applies to a liquidator who sells a company's property during shutdown, and not to the NCLT court when it uses its powers under Section 230 of the Companies Act 2013. The court explained this by saying: "The liquidator appointed under Chapter III of the IBC is given many powers and duties. Sections 37 to 42 of the IBC provide examples of these powers during the shutdown process. The liquidator performs several duties that are like those of a judge. Section 35(1) itself clearly states that the liquidator's powers and duties are 'subject to the directions of the adjudicating authority' (the NCLT). In other words, the liquidator's actions can be reviewed by the NCLT, which acts as the main authority. Therefore, to say that the NCLT can ignore the disqualifications set out in Section 35(1)(f) when considering a proposal for a compromise or arrangement under Section 230 of the Companies Act 2013, for a company being shut down under the IBC, would not be the correct way to understand the law." The main reason for challenging Regulation 2B was that it supposedly went beyond the powers of the IBBI by creating new disqualifications for submitting a proposal for a compromise or arrangement under Section 230 of the Companies Act. In response to this argument, the court observed: "In our view, this situation can be looked at in two ways, even without considering Regulation 2B. We have already shown in our earlier discussion that even without Regulation 2B, a person who is disqualified under Section 29A, when read with Section 35(1)(f), is not allowed to suggest a plan to revive a company that is..." A company can go through a shutdown process called liquidation under the IBC, which is India's bankruptcy law. We concluded that a plan to settle debts or reorganize the company, proposed under Section 230, is part of this shutdown process. The plan's main goal is to try and save the company. This idea first came from the Meghal Homes court case, which involved interpreting an older law, Section 391. Rules about who can try to save a company are in Chapter II (Section 29A) of the IBC. The same type of rules also apply to who can propose a plan during a company's shutdown under Chapter III (Section 35(1)(f)). So, the extra rule, called a proviso, in Regulation 2B simply clarifies this. Even without this extra rule, a person who is not allowed under Section 29A would not be permitted to suggest a compromise plan. This applies to plans under Section 230 of the 2013 Act. Therefore, we find no valid reason to challenge Regulation 2B. The judges rejected the appeals and decided the following: Based on our analysis, the ban set by Parliament in Section 29A and Section 35(1)(f) of the IBC must also apply to any plan to settle debts or reorganize under Section 230 of the 2013 Act. This holds true when a company is being shut down under the IBC. Therefore, Rule 2B of the Liquidation Process Regulations, especially the extra condition in Rule 2B(1), is legally valid.
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1. A co-ordinate Bench of this Court (cor. Dipankar Datta, CJ. and M. S. Karnik, J.) disposed of Writ Petition (L) No.19001 of 2022, Writ Petition (L) No. 19171 of 2022 and Writ Petition (L) No.20338 of 2022 by a common judgment and order dated 25th August 2022, the operative part whereof reads as follows: - “48. Regard being had to the ensuing Ganesh Chaturthi festival, which is so passionately celebrated by the people of this State with ritualistic devotion, requiring the members of the petitioners to vacate now would be too harsh. Therefore, we direct as follows: a) Till 24th September, 2022 but not beyond, the members of the petitioners are permitted to occupy their respective allotted accommodation. b) If any employee continues to occupy his allotted accommodation till that date, no coercive/adverse action as threatened by the impugned letters/notices be taken against him. c) Upon expiry of 24th September, 2022, action in terms of the 1971 Act may be taken together with such other action as is available to the respondents in law against those employees who choose not to vacate their respective allotted accommodation. d) Government of India may make a reference under section 10 of the ID Act by 15th September, 2022 and if reference is not considered expedient for any valid reason, the consequential order may be passed within the same date. e) Depending on the nature of decision taken by the Government of India, the parties will be at liberty to adopt such course of action in future as permitted by law. f) Should a reference under section 10 of the ID Act be made by the Government of India to the appropriate Tribunal for adjudication, such Tribunal will be free to decide the rival claims and grant such relief, if at all, in accordance with law. g) If the Government of India does not make the reference on the premise that there exists no industrial dispute for reference or otherwise, it will be open to the members of the petitioners to work out their remedy in accordance with 49. The writ petitions stand disposed of on the aforesaid terms. 50. Except to the extent decided by this judgment, all other contentions are kept open. 51. All interim applications, including Interim Application (L) No.22361 of 2022 seeking intervention, stand disposed of.” 2. In compliance with the direction contained in sub- paragraph (d) of paragraph 48 of the aforesaid order, the Government of India in the Ministry of Labour considered the question of referring the industrial dispute between the management of Air India Limited and the Joint Action Committee of Air India Unions (hereafter “the Joint Committee”, for short) “over the issue of vacation the Residential Quarters and deduction of” Productivity Linked Incentive (“PLI”) amounts. The decision of the Ministry, which was sought to be communicated inter alia to the President of the Joint Committee by letter dated 15th September 2022, declined reference in the following words: - “I am directed to refer to the Failure of Conciliation Report No.FOC report Id No.300015623 dated 31/12/2020) from the RLC (C) Mumbai received in this Ministry on 18/08/2022 on the above mentioned subject and to say that, prima facie, this Ministry does not consider this dispute fit for adjudication for the following reasons: ‘Joint Action Committee of Air India Unions has raised a demand vide their letter dated 13.10.2021 against the management of Air India Ltd, in respect of continuation of residence of the staff, in their respective quarters, till their retirement. Since this demand is not connected to employment or non-employment or the terms of employment or with conditions of labour, this demand of extraneous nature cannot be construed as an Industrial Dispute as defined under section 2(k) of the ID Act, 1947. Therefore, this case is not deemed fit to be referred to the Tribunal for adjudication, hence, declined. Further, the principles of res-judicata are also applicable in the instant matter by virtue of Hon’ble High Court of Bombay’s order dated 25.08.2022 in WP No.19001 of 2022 read along with decision in WP No.20338 of 3. This communication dated 15th September 2022, containing the decision of the Central Government not to refer the industrial dispute, forms the subject matter of challenge in these three writ petitions. 4. Since common questions of facts and law are involved, these three writ petitions have been heard together over the past few days. We propose to dispose of the same by this common judgment and order. 5. The facts leading to the judgment and order dated 25 th August 2022 would be evident from a reading thereof. We do not wish to add to the length of this order by repeating each and every factual incident. Suffice it to note, some of the members of the petitioning Association, Union and Guild are in occupation of residential accommodation provided to them by Air India Limited and that such occupants raised an industrial dispute claiming a right to continue to remain in occupation thereof till their respective dates of retirement. Conciliation proceedings having failed, the Labour Commissioner being the Conciliation Officer forwarded the failure report to the Central Government whereupon the impugned decision was arrived at. 6. Several contentions have been advanced on behalf of the petitioning Association, Union and Guild by Shri. Sanjay Singhvi, learned senior counsel, Mr. Mihir Desai, learned senior counsel and Mr. Shetty, learned counsel, respectively. According to them, the Joint Committee had raised a dispute connected with employment/terms of employment/conditions of labour, which answers the definition of an industrial dispute in section 2 (k) of the Industrial Disputes Act, 1947 (hereafter “the ID Act”, for short) and, therefore, the decision declining reference which is wholly unreasoned, is perverse. Since such decision is clearly in the teeth of the provisions contained in section 10(1) of the of the ID Act read with section 12(5) thereof, they have prayed in unison for it to be set aside. Various other contentions have been advanced and several precedents cited by Mr. Singhvi to drive home the point that the decision declining reference is unsustainable in law. 7. Per contra, Mr. Anil Singh, learned Additional Solicitor General appearing for the Union of India, Mr. Kevic Setalvad, learned senior counsel appearing for Air India Assets Holding Limited and Mr. Vijay Purohit, learned counsel appearing for the Air India Limited have opposed the prayers in the writ petitions by contending that the decision declining reference is perfectly justified having regard to the antecedent facts and circumstances. Reliance has been placed on multiple authoritative decisions of the Supreme Court to enlighten us on the approach to be adopted by the Court when an order declining reference is assailed under Article 226 of the Constitution of India. We need not refer in detail to any of such contentions that have been raised nor the decisions which have been cited because, in our opinion, the controversy in issue can be resolved on first principles of law. 8. We have no hesitation to conclude that there has been clear non-compliance with statutory provisions as well as a judicial order, coupled with failure to consider such judicial order in the proper perspective and non-application of mind to the facts and circumstances, for which the writ petitions ought to succeed. 9. There are more reasons than one for our aforesaid conclusion, which we propose to assign hereafter. 10. First, is the basic ground of the decision to decline reference containing no reason(s) for the conclusion reached. It is the statutory mandate in section 12(5) of the ID Act that if a reference under section 10(1) thereof is declined, the appropriate Government shall record and communicate to the parties concerned its reasons therefor. 11. Law, over the years, has developed to such an extent that not only judicial and quasi-judicial orders must have the support of reasons, even administrative orders could be rendered vulnerable without the backing of reasons. The requirement to record reasons is, at times, read into a statute even when there is no such express requirement. However, we are dealing with a statute which expressly requires the appropriate Government to record reasons should it refuse a reference on any ground. That apart, the appropriate Government (in this case the Central Government) in terms of the directions contained in paragraph 48(d) of the judgment and order dated 25th August 2022 was also under an obligation to record reasons if a reference were declined. 12. Bearing all the facts and circumstances in mind, we are inclined to a view that the decision declining reference ought to have satisfied the test of “why” [i.e., ‘the reasons’] for the “what” [i.e., the conclusion] to stand on. Bare perusal of the order declining reference would reveal that the Central Government referred to the terms of section 2(k) of the ID Act while holding that the demand of the Joint Committee was extraneous and, therefore, could not be construed as an industrial dispute. By what process the finding had been arrived at that the demand of the Joint Committee was extraneous, is conspicuous by its absence. We do not expect detailed reasons to be assigned but some degree of application of mind should have been apparent from the decision which, unfortunately, is absent. Mr. Singh and Mr. Setavad have attempted to supply the “why”, but then the “why” should have been there in the decision itself. It cannot be provided during oral arguments. This is the first ground on which we find the decision declining reference to be patently 13. Secondly, it appears from the impugned decision that the Ministry “prima facie” did “not consider this dispute fit for adjudication …”. Now, law is well settled that when the appropriate Government refers an industrial dispute for adjudication, it is wise and proper to record a prima facie satisfaction of both parts of section 2(k) of the ID Act being satisfied, i.e., (i) the dispute is between the parties referred to in the first part of the statutory provision; and (ii) that the dispute pertains to any of the subjects referred to in the second part of such provision. Reference to a prima facie satisfaction of the appropriate Government in relation to existence of an industrial dispute or an apprehended industrial dispute is required to be made so that the Tribunal, to which the reference of an industrial dispute is ultimately made, may proceed for adjudication uninfluenced by any opinion of the appropriate Government. It would, in an appropriate case, be open to the Tribunal to disagree with the prima facie satisfaction recorded by the appropriate Government and to say conclusively, on consideration of all relevant and material facts, that an industrial dispute as defined in section 2(k) does not exist and, therefore, no relief can be granted. 14. However, the situation would be different when the appropriate Government declines a reference. In such a case, a decision has to be arrived at to the effect that either no industrial dispute exists or is apprehended, or that there are sufficient reasons for not making the reference to the Tribunal. However, such decision ought to bear the final conclusion arrived at by the appropriate Government and not a tentative conclusion. When a reference is declined, there is no question of the Tribunal considering the legality and validity of the relevant decision. But when the writ court is approached challenging the decision, it would be open to the court to closely scrutinize the order/decision declining the reference to ascertain whether all relevant and material facts were considered while such an order was made or the decision was taken. The very fact that the Central Government has reached only a prima facie satisfaction, on facts and circumstances, leaves room for doubt as to whether there are certain other material and relevant facts which the Central Government had left out of consideration for which it restrained itself from expressing a decision, final and conclusive. We have been left guessing why “prima facie” was referred to in the decision. 15. Thirdly, the decision declining reference also refers to the principles of res judicata barring re-agitation of the same issue for adjudication. We have read the judgment and order dated 25th August 2022 in between the lines. What was barred by res judicata and against whom that principle would apply has clearly been delineated therein. The question of reference, which could be made under section 10(1) read with section 12(5) of the ID Act, was never a matter for consideration before the coordinate Bench when the writ petitions were instituted. In fact, once the failure report was submitted by the Conciliation Officer during the pendency of the earlier round of litigation, the need for a reference or the lack of it did arise. Over and above that, except to the extent decided by the said judgment and order dated 25th August 2022, all contentions were kept open. Thus, while the Court required the Central Government to exercise the power to make a reference to the Tribunal for adjudication, if at all, it is axiomatic that it had not expressed any opinion on the aspect of a reference that was required to be made. Mr. Singh fairly conceded that the point of res judicata has not been well taken but sought to rely on the doctrine of severability to sustain the first part of the impugned decision. We do not think that the doctrine would have any application here. The ultimate object would play a significant role. The Central Government was not in favour of making a reference, as is clear from the decision. It intended to reinforce its decision by assigning the additional reason of res judicata. Assuming that the first part of the decision was valid and the second part invalid, it needs ascertainment whether the valid part and the invalid part are so inextricably mixed up that the same form part of a single scheme which is intended to be operative as a whole; if that is so, then the whole must go and there is no question of severability. We hold on a reading of the impugned decision that the Central Government did not intend to make the reference by its decision, which being composite in character, must go as a whole. 16. The fourth and final reason for which the decision declining reference is liable to be interdicted is that the Central Government does not appear to have considered the dispute/demand raised by the Joint Committee touching deductions of PLI amounts effected by the management. This part of the demand of the Joint Committee appears to have been completely overlooked by the Central Government. Non- application of mind is, thus, writ large. 17. For the reasons aforesaid, we are of the clear opinion that the decision declining reference is indefensible. Such decision, contained in the communication dated 15th September 2022 is quashed and set aside. The matter is remitted to the Central Government for a fresh decision to be taken in accordance with law as early as possible, preferably 18. On the verge of conclusion of hearing, we have been shown a document by Mr. Shetty. It appears to have been issued by the Chief Human Resources Officer of Air India Engineering Services Limited whereby the requirement to advise the employees “to vacate the Company Accommodation” by 28th October 2022 has been stressed upon. The said document is taken on record and marked ‘X’ for identification. 19. In view of such communication, the prayer for protection from dispossession till a decision is taken in terms of this order does not survive for consideration. We would expect the respondent companies to abide by the same. 20. We make it abundantly clear that beyond 28th October 2022, action may be taken in accordance with law against those employees who fail to vacate the accommodation provided to them by Air India Ltd. in terms of the Housing 21. The writ petitions are disposed of with no order as to costs. All contentions on merits are left open.
The Bombay High Court recently ruled that if the government decides not to send a disagreement to a special court for workplace issues (called an Industrial Disputes Tribunal), it must be absolutely sure that no actual disagreement exists. It cannot just have an initial thought that there isn't one. The court found that the government's decision not to send a disagreement between Air India workers and Air India Ltd. to the Tribunal was clearly against the law. This disagreement was about the workers having to leave their assigned homes. The court said the government made this decision without truly thinking about the facts. The court explained that because the government only had an initial thought about the situation, it made people wonder if the government had ignored other important and related facts. This made it hard for the government to make a clear, final decision. Chief Justice Dipankar Datta and Justice Madhav J. Jamdar agreed to hear several legal requests from unions representing Air India workers. These unions were questioning the government's choice not to send their disagreement to the Tribunal. The disagreement was about workers having to leave their homes and money being taken from their 'Productivity Linked Incentive' pay. The workers' unions were the ones who brought this case. Air India had told its workers to move out of their assigned homes because the company was being sold to a private owner. The Bombay High Court, in a decision on August 25, 2022, said the workers could stay in their homes until September 24, 2022, because of the Ganesh Chaturthi festival. The court also told the government to decide if this issue should be reviewed under the Industrial Disputes Act, 1947. On September 15, 2022, the government chose not to send the disagreement to the special court. It called the requests from the Air India Unions' committee "unnecessary" or "not related to the main issue." The unions then challenged this decision in the High Court. Lawyers for the unions argued that the disagreement was about work conditions. They said this type of issue is covered by a specific part of the law (section 2(k) of the Act). They also argued that the government's choice not to send the case to the Tribunal went against other parts of the law (sections 10(1) and 12(5) of the Act). On the other side, lawyers for the government and Air India companies argued that the government's decision not to send the case was correct, given all the details. The court stated that the government clearly did not follow the law and a previous court order. It also said the government had not properly thought about the facts of the case. Section 12(5) of the Act says that if the government decides not to send a dispute to the Tribunal, it must write down why and tell everyone involved. The court pointed out that the government called the joint committee's demands "unrelated" and refused to send the disagreement to the Tribunal. But it did not explain why it came to this conclusion. Further, the court also mentioned that the Ministry of Labour had only initially thought that this disagreement was not suitable to be sent to the Tribunal. The court explained that if the Ministry initially thinks there *is* a workplace disagreement, that's enough to send it to the Tribunal. This is because the Tribunal will then look closely at all the details and can either agree with or disagree with that first thought. However, the court stressed that an initial thought *isn't* enough to refuse to send a disagreement to the Tribunal. The court said the government must make a final decision, not just an initial one, that there is no workplace disagreement, or no reason to send the issue to the Tribunal. If the case isn't sent to the Tribunal, then the Tribunal never gets the chance to make a final decision on whether a disagreement actually exists. The court also noticed that the government did not think about the disagreement brought up by the Joint Committee regarding the company taking money from the workers' 'Productivity Linked Incentive' pay. The court declared that the government's decision not to send the disagreement to the Tribunal was clearly against the law. This was because the government had not properly thought about the facts before making its decision. The court sent the case back to the government, telling it to think about it again by October 12, 2022. "After October 28, 2022, legal steps may be taken against any workers who have not moved out of their assigned homes," it added.
1. A co-ordinate Bench of this Court (cor. Dipankar Datta, CJ. and M. S. Karnik, J.) disposed of Writ Petition (L) No.19001 of 2022, Writ Petition (L) No. 19171 of 2022 and Writ Petition (L) No.20338 of 2022 by a common judgment and order dated 25th August 2022, the operative part whereof reads as follows: - “48. Regard being had to the ensuing Ganesh Chaturthi festival, which is so passionately celebrated by the people of this State with ritualistic devotion, requiring the members of the petitioners to vacate now would be too harsh. Therefore, we direct as follows: a) Till 24th September, 2022 but not beyond, the members of the petitioners are permitted to occupy their respective allotted accommodation. b) If any employee continues to occupy his allotted accommodation till that date, no coercive/adverse action as threatened by the impugned letters/notices be taken against him. c) Upon expiry of 24th September, 2022, action in terms of the 1971 Act may be taken together with such other action as is available to the respondents in law against those employees who choose not to vacate their respective allotted accommodation. d) Government of India may make a reference under section 10 of the ID Act by 15th September, 2022 and if reference is not considered expedient for any valid reason, the consequential order may be passed within the same date. e) Depending on the nature of decision taken by the Government of India, the parties will be at liberty to adopt such course of action in future as permitted by law. f) Should a reference under section 10 of the ID Act be made by the Government of India to the appropriate Tribunal for adjudication, such Tribunal will be free to decide the rival claims and grant such relief, if at all, in accordance with law. g) If the Government of India does not make the reference on the premise that there exists no industrial dispute for reference or otherwise, it will be open to the members of the petitioners to work out their remedy in accordance with 49. The writ petitions stand disposed of on the aforesaid terms. 50. Except to the extent decided by this judgment, all other contentions are kept open. 51. All interim applications, including Interim Application (L) No.22361 of 2022 seeking intervention, stand disposed of.” 2. In compliance with the direction contained in sub- paragraph (d) of paragraph 48 of the aforesaid order, the Government of India in the Ministry of Labour considered the question of referring the industrial dispute between the management of Air India Limited and the Joint Action Committee of Air India Unions (hereafter “the Joint Committee”, for short) “over the issue of vacation the Residential Quarters and deduction of” Productivity Linked Incentive (“PLI”) amounts. The decision of the Ministry, which was sought to be communicated inter alia to the President of the Joint Committee by letter dated 15th September 2022, declined reference in the following words: - “I am directed to refer to the Failure of Conciliation Report No.FOC report Id No.300015623 dated 31/12/2020) from the RLC (C) Mumbai received in this Ministry on 18/08/2022 on the above mentioned subject and to say that, prima facie, this Ministry does not consider this dispute fit for adjudication for the following reasons: ‘Joint Action Committee of Air India Unions has raised a demand vide their letter dated 13.10.2021 against the management of Air India Ltd, in respect of continuation of residence of the staff, in their respective quarters, till their retirement. Since this demand is not connected to employment or non-employment or the terms of employment or with conditions of labour, this demand of extraneous nature cannot be construed as an Industrial Dispute as defined under section 2(k) of the ID Act, 1947. Therefore, this case is not deemed fit to be referred to the Tribunal for adjudication, hence, declined. Further, the principles of res-judicata are also applicable in the instant matter by virtue of Hon’ble High Court of Bombay’s order dated 25.08.2022 in WP No.19001 of 2022 read along with decision in WP No.20338 of 3. This communication dated 15th September 2022, containing the decision of the Central Government not to refer the industrial dispute, forms the subject matter of challenge in these three writ petitions. 4. Since common questions of facts and law are involved, these three writ petitions have been heard together over the past few days. We propose to dispose of the same by this common judgment and order. 5. The facts leading to the judgment and order dated 25 th August 2022 would be evident from a reading thereof. We do not wish to add to the length of this order by repeating each and every factual incident. Suffice it to note, some of the members of the petitioning Association, Union and Guild are in occupation of residential accommodation provided to them by Air India Limited and that such occupants raised an industrial dispute claiming a right to continue to remain in occupation thereof till their respective dates of retirement. Conciliation proceedings having failed, the Labour Commissioner being the Conciliation Officer forwarded the failure report to the Central Government whereupon the impugned decision was arrived at. 6. Several contentions have been advanced on behalf of the petitioning Association, Union and Guild by Shri. Sanjay Singhvi, learned senior counsel, Mr. Mihir Desai, learned senior counsel and Mr. Shetty, learned counsel, respectively. According to them, the Joint Committee had raised a dispute connected with employment/terms of employment/conditions of labour, which answers the definition of an industrial dispute in section 2 (k) of the Industrial Disputes Act, 1947 (hereafter “the ID Act”, for short) and, therefore, the decision declining reference which is wholly unreasoned, is perverse. Since such decision is clearly in the teeth of the provisions contained in section 10(1) of the of the ID Act read with section 12(5) thereof, they have prayed in unison for it to be set aside. Various other contentions have been advanced and several precedents cited by Mr. Singhvi to drive home the point that the decision declining reference is unsustainable in law. 7. Per contra, Mr. Anil Singh, learned Additional Solicitor General appearing for the Union of India, Mr. Kevic Setalvad, learned senior counsel appearing for Air India Assets Holding Limited and Mr. Vijay Purohit, learned counsel appearing for the Air India Limited have opposed the prayers in the writ petitions by contending that the decision declining reference is perfectly justified having regard to the antecedent facts and circumstances. Reliance has been placed on multiple authoritative decisions of the Supreme Court to enlighten us on the approach to be adopted by the Court when an order declining reference is assailed under Article 226 of the Constitution of India. We need not refer in detail to any of such contentions that have been raised nor the decisions which have been cited because, in our opinion, the controversy in issue can be resolved on first principles of law. 8. We have no hesitation to conclude that there has been clear non-compliance with statutory provisions as well as a judicial order, coupled with failure to consider such judicial order in the proper perspective and non-application of mind to the facts and circumstances, for which the writ petitions ought to succeed. 9. There are more reasons than one for our aforesaid conclusion, which we propose to assign hereafter. 10. First, is the basic ground of the decision to decline reference containing no reason(s) for the conclusion reached. It is the statutory mandate in section 12(5) of the ID Act that if a reference under section 10(1) thereof is declined, the appropriate Government shall record and communicate to the parties concerned its reasons therefor. 11. Law, over the years, has developed to such an extent that not only judicial and quasi-judicial orders must have the support of reasons, even administrative orders could be rendered vulnerable without the backing of reasons. The requirement to record reasons is, at times, read into a statute even when there is no such express requirement. However, we are dealing with a statute which expressly requires the appropriate Government to record reasons should it refuse a reference on any ground. That apart, the appropriate Government (in this case the Central Government) in terms of the directions contained in paragraph 48(d) of the judgment and order dated 25th August 2022 was also under an obligation to record reasons if a reference were declined. 12. Bearing all the facts and circumstances in mind, we are inclined to a view that the decision declining reference ought to have satisfied the test of “why” [i.e., ‘the reasons’] for the “what” [i.e., the conclusion] to stand on. Bare perusal of the order declining reference would reveal that the Central Government referred to the terms of section 2(k) of the ID Act while holding that the demand of the Joint Committee was extraneous and, therefore, could not be construed as an industrial dispute. By what process the finding had been arrived at that the demand of the Joint Committee was extraneous, is conspicuous by its absence. We do not expect detailed reasons to be assigned but some degree of application of mind should have been apparent from the decision which, unfortunately, is absent. Mr. Singh and Mr. Setavad have attempted to supply the “why”, but then the “why” should have been there in the decision itself. It cannot be provided during oral arguments. This is the first ground on which we find the decision declining reference to be patently 13. Secondly, it appears from the impugned decision that the Ministry “prima facie” did “not consider this dispute fit for adjudication …”. Now, law is well settled that when the appropriate Government refers an industrial dispute for adjudication, it is wise and proper to record a prima facie satisfaction of both parts of section 2(k) of the ID Act being satisfied, i.e., (i) the dispute is between the parties referred to in the first part of the statutory provision; and (ii) that the dispute pertains to any of the subjects referred to in the second part of such provision. Reference to a prima facie satisfaction of the appropriate Government in relation to existence of an industrial dispute or an apprehended industrial dispute is required to be made so that the Tribunal, to which the reference of an industrial dispute is ultimately made, may proceed for adjudication uninfluenced by any opinion of the appropriate Government. It would, in an appropriate case, be open to the Tribunal to disagree with the prima facie satisfaction recorded by the appropriate Government and to say conclusively, on consideration of all relevant and material facts, that an industrial dispute as defined in section 2(k) does not exist and, therefore, no relief can be granted. 14. However, the situation would be different when the appropriate Government declines a reference. In such a case, a decision has to be arrived at to the effect that either no industrial dispute exists or is apprehended, or that there are sufficient reasons for not making the reference to the Tribunal. However, such decision ought to bear the final conclusion arrived at by the appropriate Government and not a tentative conclusion. When a reference is declined, there is no question of the Tribunal considering the legality and validity of the relevant decision. But when the writ court is approached challenging the decision, it would be open to the court to closely scrutinize the order/decision declining the reference to ascertain whether all relevant and material facts were considered while such an order was made or the decision was taken. The very fact that the Central Government has reached only a prima facie satisfaction, on facts and circumstances, leaves room for doubt as to whether there are certain other material and relevant facts which the Central Government had left out of consideration for which it restrained itself from expressing a decision, final and conclusive. We have been left guessing why “prima facie” was referred to in the decision. 15. Thirdly, the decision declining reference also refers to the principles of res judicata barring re-agitation of the same issue for adjudication. We have read the judgment and order dated 25th August 2022 in between the lines. What was barred by res judicata and against whom that principle would apply has clearly been delineated therein. The question of reference, which could be made under section 10(1) read with section 12(5) of the ID Act, was never a matter for consideration before the coordinate Bench when the writ petitions were instituted. In fact, once the failure report was submitted by the Conciliation Officer during the pendency of the earlier round of litigation, the need for a reference or the lack of it did arise. Over and above that, except to the extent decided by the said judgment and order dated 25th August 2022, all contentions were kept open. Thus, while the Court required the Central Government to exercise the power to make a reference to the Tribunal for adjudication, if at all, it is axiomatic that it had not expressed any opinion on the aspect of a reference that was required to be made. Mr. Singh fairly conceded that the point of res judicata has not been well taken but sought to rely on the doctrine of severability to sustain the first part of the impugned decision. We do not think that the doctrine would have any application here. The ultimate object would play a significant role. The Central Government was not in favour of making a reference, as is clear from the decision. It intended to reinforce its decision by assigning the additional reason of res judicata. Assuming that the first part of the decision was valid and the second part invalid, it needs ascertainment whether the valid part and the invalid part are so inextricably mixed up that the same form part of a single scheme which is intended to be operative as a whole; if that is so, then the whole must go and there is no question of severability. We hold on a reading of the impugned decision that the Central Government did not intend to make the reference by its decision, which being composite in character, must go as a whole. 16. The fourth and final reason for which the decision declining reference is liable to be interdicted is that the Central Government does not appear to have considered the dispute/demand raised by the Joint Committee touching deductions of PLI amounts effected by the management. This part of the demand of the Joint Committee appears to have been completely overlooked by the Central Government. Non- application of mind is, thus, writ large. 17. For the reasons aforesaid, we are of the clear opinion that the decision declining reference is indefensible. Such decision, contained in the communication dated 15th September 2022 is quashed and set aside. The matter is remitted to the Central Government for a fresh decision to be taken in accordance with law as early as possible, preferably 18. On the verge of conclusion of hearing, we have been shown a document by Mr. Shetty. It appears to have been issued by the Chief Human Resources Officer of Air India Engineering Services Limited whereby the requirement to advise the employees “to vacate the Company Accommodation” by 28th October 2022 has been stressed upon. The said document is taken on record and marked ‘X’ for identification. 19. In view of such communication, the prayer for protection from dispossession till a decision is taken in terms of this order does not survive for consideration. We would expect the respondent companies to abide by the same. 20. We make it abundantly clear that beyond 28th October 2022, action may be taken in accordance with law against those employees who fail to vacate the accommodation provided to them by Air India Ltd. in terms of the Housing 21. The writ petitions are disposed of with no order as to costs. All contentions on merits are left open.
The Bombay High Court recently ruled that if the government decides not to send a disagreement to a special court for workplace issues (called an Industrial Disputes Tribunal), it must be absolutely sure that no actual disagreement exists. It cannot just have an initial thought that there isn't one. The court found that the government's decision not to send a disagreement between Air India workers and Air India Ltd. to the Tribunal was clearly against the law. This disagreement was about the workers having to leave their assigned homes. The court said the government made this decision without truly thinking about the facts. The court explained that because the government only had an initial thought about the situation, it made people wonder if the government had ignored other important and related facts. This made it hard for the government to make a clear, final decision. Chief Justice Dipankar Datta and Justice Madhav J. Jamdar agreed to hear several legal requests from unions representing Air India workers. These unions were questioning the government's choice not to send their disagreement to the Tribunal. The disagreement was about workers having to leave their homes and money being taken from their 'Productivity Linked Incentive' pay. The workers' unions were the ones who brought this case. Air India had told its workers to move out of their assigned homes because the company was being sold to a private owner. The Bombay High Court, in a decision on August 25, 2022, said the workers could stay in their homes until September 24, 2022, because of the Ganesh Chaturthi festival. The court also told the government to decide if this issue should be reviewed under the Industrial Disputes Act, 1947. On September 15, 2022, the government chose not to send the disagreement to the special court. It called the requests from the Air India Unions' committee "unnecessary" or "not related to the main issue." The unions then challenged this decision in the High Court. Lawyers for the unions argued that the disagreement was about work conditions. They said this type of issue is covered by a specific part of the law (section 2(k) of the Act). They also argued that the government's choice not to send the case to the Tribunal went against other parts of the law (sections 10(1) and 12(5) of the Act). On the other side, lawyers for the government and Air India companies argued that the government's decision not to send the case was correct, given all the details. The court stated that the government clearly did not follow the law and a previous court order. It also said the government had not properly thought about the facts of the case. Section 12(5) of the Act says that if the government decides not to send a dispute to the Tribunal, it must write down why and tell everyone involved. The court pointed out that the government called the joint committee's demands "unrelated" and refused to send the disagreement to the Tribunal. But it did not explain why it came to this conclusion. Further, the court also mentioned that the Ministry of Labour had only initially thought that this disagreement was not suitable to be sent to the Tribunal. The court explained that if the Ministry initially thinks there *is* a workplace disagreement, that's enough to send it to the Tribunal. This is because the Tribunal will then look closely at all the details and can either agree with or disagree with that first thought. However, the court stressed that an initial thought *isn't* enough to refuse to send a disagreement to the Tribunal. The court said the government must make a final decision, not just an initial one, that there is no workplace disagreement, or no reason to send the issue to the Tribunal. If the case isn't sent to the Tribunal, then the Tribunal never gets the chance to make a final decision on whether a disagreement actually exists. The court also noticed that the government did not think about the disagreement brought up by the Joint Committee regarding the company taking money from the workers' 'Productivity Linked Incentive' pay. The court declared that the government's decision not to send the disagreement to the Tribunal was clearly against the law. This was because the government had not properly thought about the facts before making its decision. The court sent the case back to the government, telling it to think about it again by October 12, 2022. "After October 28, 2022, legal steps may be taken against any workers who have not moved out of their assigned homes," it added.
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Counsel for Opposite Party :- Govt. Advocate,Rahul Agnihotri,Ramesh Chandra 1. Heard Sri Shivam Sharma, learned counsel for the petitioners, Sri Rao Narendra Singh, learned A.G.A. for the State-respondent and Sri Ramesh Chandra Gupta, learned counsel for respondent no. 2. 2. Present petition under section 482 Cr.P.C. has been filed seeking quashing of the proceedings of Sessions Trial No. 510 of 2014, State of U.P. Versus Girijadayal and others, pending in the court of learned Additional It has further been prayed to quash the order dated 03-11-2014 passed in the aforesaid Sessions Trial No. 510 of 2014. 3. The allegation against the petitioners, who are the real brothers, and his 81 years old father is that they had gang-raped the prosecturix, a married woman, having two grown up children, aged around 13 years and 11 years. 4. The police after investigating the offence submitted final report exonerating the petitioners and their father for committing the offence. Since, the prosecutrix was not satisfied with the said final report, she filed a complaint before the Uttar Pradesh State Women Commission, Lucknow. 5. The Uttar Pradesh State Women Commission, Lucknow directed the Superintendent of Police, Kheri to submit a detailed report in the matter. 6. The Superintendent of Police, Kheri, submitted a report on 31-03-2012 before the Uttar Pradesh State Women Commission, Lucknow specifically stating that the case set up by the prosecturix, was completely a false case. The prosecutrix wanted to persecute the petitioners with malafide intention, and the report lodged by the prosecutrix was in retaliation of the report lodged against her husband and other relatives. It was said that the Investigating Officer after investing the offence, found that the case set up by the prosecutrix was completely a false case and recommended for taking action under section 182 I.P.C. against the prosecutrix. 7. Against filing of the final report exonerating the petitioners under section 173(2) Cr.P.C., the prosecutrix filed a protest petition, which was treated as a complaint case and after recording the statements of the prosecutrix and witnesses, the petitioners were summoned to face the trial for the offences under sections 366, 452 and 376 I.P.C. The trial court framed charges on 8. It is relevant to mention here that an F.I.R. under section 363 read with section 366 I.P.C. came to be registered on complaint of one of the accused persons, whose minor daughter was allegedly abducted by the husband of the prosecutrix and other relatives named in the F.I.R. As a measure of retaliation and vengeance, the prosecutrix has lodged these proceedings though the police did not find any evidence for commission of the offence by the four real brothers and their father. 9. This court's conscience also does not believe that four real brothers and their father would commit rape on a woman having two grown up children. 10. Considering all these facts and also taking into account the report submitted by the Superintendent of Police, Kheri to the Uttar Pradesh State Women Commission, Lucknow, this court finds that the impugned proceedings are nothing but an abuse of process of the court to falsely implicate the petitioners, who are the real brothers, and their father, aged around 81 years for the offence under section 376 I.P.C. 11. In view thereof, the present petition is allowed and the impugned proceedings of Sessions Trial No. 510 of 2014, State of U.P. Versus Girijadayal and others, pending in the court of learned Additional Sessions Judge, Court No. 5, Lakhimpur Kheri are hereby quashed.
A court in India, the Allahabad High Court in Lucknow, canceled a criminal case against four brothers and their 81-year-old father. They had been accused of gang-raping a married woman who had two adult children. Justice Dinesh Kumar Singh, the judge, stated that it was hard to believe that four brothers and their elderly father would rape a woman who already had two grown children. The Court was mainly reviewing a request from the accused men to stop the criminal case against them. This case began in 2014, and the request was made under Section 482 of the criminal law code, which allows the High Court to cancel unjust legal actions. After looking into the matter, the police had filed a final report saying that the brothers and their father were innocent of the crime. However, the woman who made the accusation, called the 'prosecutrix,' was not happy with this report. So, she filed a complaint with the Uttar Pradesh State Women Commission, a government group for women's issues. The Commission then told a senior police officer in Kheri, the Superintendent of Police, to provide a full report on the case. In his report, the Superintendent of Police clearly stated that the woman's accusation was completely false. The report also said that the woman wanted to harm the accused men on purpose, with bad intentions. It suggested that her accusation was made as revenge because an accusation had been filed against her husband and other family members. The police officer investigating the crime also found that the woman's story was completely false. Because of this, the officer suggested that action should be taken against her under Section 182 of the Indian Penal Code, which deals with giving false information to a public servant. Even after the police's final report cleared the accused men, the woman filed a 'protest petition,' disagreeing with the report. This petition was then treated like a new complaint. After hearing statements from the woman and other people, the accused men were called to court to face charges of kidnapping, home invasion, and rape under different sections of the Indian Penal Code. Considering all the facts, the Court decided that the woman had started these legal actions mainly for revenge. This was despite the fact that the police found no evidence that the four brothers and their father had committed the crime. The Court looked at all these details, including the report from the Kheri police chief to the Women Commission. It concluded that these legal actions were simply an unfair use of the court system to wrongly accuse the brothers and their 81-year-old father of rape. With this, the Court approved their request to stop the case. Because of this decision, the request was granted, and the ongoing serious criminal trial in Lakhimpur Kheri against the men was canceled.
Counsel for Opposite Party :- Govt. Advocate,Rahul Agnihotri,Ramesh Chandra 1. Heard Sri Shivam Sharma, learned counsel for the petitioners, Sri Rao Narendra Singh, learned A.G.A. for the State-respondent and Sri Ramesh Chandra Gupta, learned counsel for respondent no. 2. 2. Present petition under section 482 Cr.P.C. has been filed seeking quashing of the proceedings of Sessions Trial No. 510 of 2014, State of U.P. Versus Girijadayal and others, pending in the court of learned Additional It has further been prayed to quash the order dated 03-11-2014 passed in the aforesaid Sessions Trial No. 510 of 2014. 3. The allegation against the petitioners, who are the real brothers, and his 81 years old father is that they had gang-raped the prosecturix, a married woman, having two grown up children, aged around 13 years and 11 years. 4. The police after investigating the offence submitted final report exonerating the petitioners and their father for committing the offence. Since, the prosecutrix was not satisfied with the said final report, she filed a complaint before the Uttar Pradesh State Women Commission, Lucknow. 5. The Uttar Pradesh State Women Commission, Lucknow directed the Superintendent of Police, Kheri to submit a detailed report in the matter. 6. The Superintendent of Police, Kheri, submitted a report on 31-03-2012 before the Uttar Pradesh State Women Commission, Lucknow specifically stating that the case set up by the prosecturix, was completely a false case. The prosecutrix wanted to persecute the petitioners with malafide intention, and the report lodged by the prosecutrix was in retaliation of the report lodged against her husband and other relatives. It was said that the Investigating Officer after investing the offence, found that the case set up by the prosecutrix was completely a false case and recommended for taking action under section 182 I.P.C. against the prosecutrix. 7. Against filing of the final report exonerating the petitioners under section 173(2) Cr.P.C., the prosecutrix filed a protest petition, which was treated as a complaint case and after recording the statements of the prosecutrix and witnesses, the petitioners were summoned to face the trial for the offences under sections 366, 452 and 376 I.P.C. The trial court framed charges on 8. It is relevant to mention here that an F.I.R. under section 363 read with section 366 I.P.C. came to be registered on complaint of one of the accused persons, whose minor daughter was allegedly abducted by the husband of the prosecutrix and other relatives named in the F.I.R. As a measure of retaliation and vengeance, the prosecutrix has lodged these proceedings though the police did not find any evidence for commission of the offence by the four real brothers and their father. 9. This court's conscience also does not believe that four real brothers and their father would commit rape on a woman having two grown up children. 10. Considering all these facts and also taking into account the report submitted by the Superintendent of Police, Kheri to the Uttar Pradesh State Women Commission, Lucknow, this court finds that the impugned proceedings are nothing but an abuse of process of the court to falsely implicate the petitioners, who are the real brothers, and their father, aged around 81 years for the offence under section 376 I.P.C. 11. In view thereof, the present petition is allowed and the impugned proceedings of Sessions Trial No. 510 of 2014, State of U.P. Versus Girijadayal and others, pending in the court of learned Additional Sessions Judge, Court No. 5, Lakhimpur Kheri are hereby quashed.
A court in India, the Allahabad High Court in Lucknow, canceled a criminal case against four brothers and their 81-year-old father. They had been accused of gang-raping a married woman who had two adult children. Justice Dinesh Kumar Singh, the judge, stated that it was hard to believe that four brothers and their elderly father would rape a woman who already had two grown children. The Court was mainly reviewing a request from the accused men to stop the criminal case against them. This case began in 2014, and the request was made under Section 482 of the criminal law code, which allows the High Court to cancel unjust legal actions. After looking into the matter, the police had filed a final report saying that the brothers and their father were innocent of the crime. However, the woman who made the accusation, called the 'prosecutrix,' was not happy with this report. So, she filed a complaint with the Uttar Pradesh State Women Commission, a government group for women's issues. The Commission then told a senior police officer in Kheri, the Superintendent of Police, to provide a full report on the case. In his report, the Superintendent of Police clearly stated that the woman's accusation was completely false. The report also said that the woman wanted to harm the accused men on purpose, with bad intentions. It suggested that her accusation was made as revenge because an accusation had been filed against her husband and other family members. The police officer investigating the crime also found that the woman's story was completely false. Because of this, the officer suggested that action should be taken against her under Section 182 of the Indian Penal Code, which deals with giving false information to a public servant. Even after the police's final report cleared the accused men, the woman filed a 'protest petition,' disagreeing with the report. This petition was then treated like a new complaint. After hearing statements from the woman and other people, the accused men were called to court to face charges of kidnapping, home invasion, and rape under different sections of the Indian Penal Code. Considering all the facts, the Court decided that the woman had started these legal actions mainly for revenge. This was despite the fact that the police found no evidence that the four brothers and their father had committed the crime. The Court looked at all these details, including the report from the Kheri police chief to the Women Commission. It concluded that these legal actions were simply an unfair use of the court system to wrongly accuse the brothers and their 81-year-old father of rape. With this, the Court approved their request to stop the case. Because of this decision, the request was granted, and the ongoing serious criminal trial in Lakhimpur Kheri against the men was canceled.
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3. As the identical issue involved in both the aforesaid petitions, the same is decided by way of common order and Special Civil Application No. 16268 of 2020 is treated as lead 4. The present petition under Article 226 of the Constitution of India is filed by the petitioners seeking the following reliefs, which reads thus: “(A) to quash and set aside the notice dated 14.08.2020 of the Respondent Bank; (B) direct the Respondent Bank, its servants and agents to act in accordance with law and to refrain from taking any steps or further steps in the matter of proceedings against the Petitioner No.1 as a willful defaulter; (C) direct the Respondent Bank to produce the records of the Respondent relating to possible classification of the Petitioners as willful defaulter; (D) to direct that pending the hearing and final disposal of the present Special Civil Application the proceedings pertaining to classification of the Petitioners as willful (E) To pass such other and further order(s) as this Hon’ble Court deems fit and proper in the facts and circumstances of the case; (F) To provide for the costs of the present 5. The brief facts leading to filing of the present petition are stated thus: 5.1. The petitioners have challenged the illegal actions undertaken by the respondent in sheer contravention of the terms and conditions of the Master Circular namely “Master Circular on Willful Defaulters’ dated 01.07.2015 issued by the Reserve Bank of India (RBI), whereby, the respondent has threatened to declare the petitioners as willful defaulter by issuing impugned show cause notice dated 14.08.2020 which was received by the petitioner herein through e-mail on 5.2. It is stated that, in view of above, the petitioners are constrained to approach this Court invoking writ jurisdiction under Article 226 of the Constitution of India. 6. Heard Mr. Ayaan A. Patel, learned counsel appearing for the petitioners. 6.1. Mr. Ayaan A. Patel, learned counsel appearing for the petitioners submitted that the impugned show cause notice dated 14.08.2020, alleges that the petitioners have committed defaults in repayment of the amount due and payable to the respondent bank under the Facilities Agreement. It is further stated that, the petitioner no.1 has been making regular payments to the respondent Bank, with the last payment being made on 18.10.2019, and accordingly, the petitioner no.1 in good faith and bona-fide has made payment, despite the fact that actions / inactions on the part of the respondent were causing immense distress and financial loss to the petitioner no.1. While referring various other submissions, main bone of the contention of Mr. Patel, learned counsel appearing for the petitioners is that the impugned show cause notice can be said to be vague and it does not refer the necessary particulars to facilitate the petitioner to answer the 6.2. During the course of hearing, it was also submitted by Mr. Patel, learned counsel that the petitioners have replied to the said show cause notice dated 14.08.2020, however, the respondent bank has failed to provide necessary documents / documents as sought for by the petitioners. 6.3. In view of above, Mr. Patel, learned counsel submitted that the show cause notice being devoid of any clarity and being vague, required to be quashed and set aside. 7. Heard Mr. Saurabh N. Soparkar, learned senior counsel assisted by Mr. Arjun Joshi, learned counsel for Ms. Gargi Vyas, learned counsel appearing for the respondent-Bank. 7.1. Mr. Saurabh N. Soparkar, learned senior counsel raised preliminary objection with regard to the maintainability of the present petition. Mr. Soparkar, learned senior counsel at the outset submitted that the writ under Article 226 of the Constitution of India is not maintainable against a Private Bank. The respondent being a Private Bank, the aforesaid petition would not be maintainable against the respondent- Bank and the present petition be dismissed on the aforesaid ground only. 7.2. Mr. Soparkar, learned senior counsel submitted that the aforesaid issue is no more res-integra. Mr. Soparkar, learned senior counsel relied on the judgment of Ionic Metaliks v. Union of India reported in 2015 GLH(2) 156. Mr. Soparkar, learned senior counsel further relied on the judgment passed by the coordinate bench of this Court in Special Civil Application No. 15813 of 2019 decided on 28.11.2019. 7.3. Relying on the aforesaid judgment, Mr. Soparkar, learned senior counsel submitted that the Division Bench of this Court in the case of Ionic Metaliks held that a writ would not maintainable against the private bank. The said ratio as laid down by the Division Bench was followed in Special Civil Application No. 15831 of 2019, wherein, in an identical issue a writ was sought for against the Yes Bank and it is held that the respondent - Yes Bank being a private bank, writ against the said Bank is not maintainable. 8.. In response to the aforesaid contentions, Mr. Ayaan Patel, learned counsel appearing for the petitioner submitted that after the order came to be passed in Special Civil Application No. 15813 of 2019, the present respondent bank has undergone change in the shareholding pattern and relying on the said documents produced on record the shareholding pattern and submitted that the State Bank of India (SBI) has 30% and Life Insurance Corporation of India (LIC) has 4.90% shareholding of Yes Bank- respondent bank, which comes to total 34.90% shareholding in the respondent bank and resultantly the State has deep and persuasive control over the 9. In view of above, Mr. Patel, learned counsel submitted that it can be said that the respondent bank is derelicting the duty of public nature, and therefore, it can be said to be a ‘State’ and also submitted that in view of the fact that the respondent bank has been derelicting the public function, a writ would be maintainable against the respondent 10. Heard the learned counsel appearing for the respective parties. 11. Since the preliminary objection has raised by the respondent bank, this Court finds it appropriate to decide the said issue as a preliminary issue. 12. In view of the facts as stated above, which are germane for adjudication of the present petition, they are not repeated, as there are undisputed facts for determination of the present dispute / issue. 13. In case of Federal Bank Ltd. v. Sagar Thomas & ors. reported in AIR 2003 SC 4325, the Hon’ble Supreme Court has observed thus: Companies Act for the purposes of carrying on any trade or business is a private enterprise to earn livelihood and to make profits out of such activities. Banking is also a kind of profession and a commercial activity, the primary motive behind it can well be said to earn returns and profits. Since time immemorial, such activities have been carried on by individuals generally. It is a private affair of the company though case of nationalized banks stands on a different footing. There may, well be companies, in which majority of the share capital may be contributed out of the State funds and in that view of the matter there may be more participation or dominant participation of the State in managing the affairs of the company. But in the present case we are concerned with a banking company which has its own resources to raise its funds without any contribution or shareholding by the State. It has its own Board of Directors elected by its shareholders. It works like any other private company in the banking business having no monopoly status at all. Any company carrying on banking business with a capital of five lacs will become a scheduled bank. All the same, banking activity as a whole carried on by various banks undoubtedly has an impact and effect on the economy of the country in general. Money of the shareholders and the depositors is with such companies, carrying on banking activity. The banks finance the borrowers on any given rate of interest at a particular time. They advance loans as against securities. Therefore, it is obviously necessary to have regulatory check over such activities in the interest of the company itself, the shareholders, the depositors as well as to maintain the proper financial equilibrium of the national economy. The Banking companies have not been set up for the purposes of building economy of the State on the other hand such private companies have been voluntarily established for their own purposes and interest but their activities are kept under check so that their activities may not go wayward and harm the economy in general. A private banking company with all freedom that it has, has to act in a manner that it may not be in conflict with or against the fiscal policies of the State and for such purposes, guidelines are provided by the Reserve Bank so that a proper fiscal discipline, to conduct its affairs in carrying on its business, is maintained. So as to ensure adherence to such fiscal discipline, if need be, at times even the management of the company can be taken over. Nonetheless, as observed earlier, these are all regulatory measures to keep a check and provide guideline and not a participatory dominance or control over the affairs of the company. For other companies in general carrying on other business activities may be manufacturing, other industries or any business, such checks are provided under the provisions of the Companies Act, as indicated earlier. There also, the main consideration is that the company itself may not sink because of its own mismanagement or the interest of the shareholders or people generally may not be jeopardized for that reason. Besides taking care of such interest as indicated above, there is no other interest of the State, to control the affairs and management of the private companies. The care is taken in regard to the industries covered under the Industries (Development and Regulation) Act, 1951 that their production which is important for the economy may not go down yet the business activity is carried on by such companies or corporations which only remains a private activity of the entrepreneurs/companies. 28. Such private companies would normally not be amenable to the writ jurisdiction under Article 226 of the Constitution. But in certain circumstances a writ may issue to such private bodies or persons as there may be statutes which need to be complied with by all concerned including the private companies. For example, there are certain legislations like the Industrial Disputes Act, the Minimum Wages Act, the Factories Act or for maintaining proper environment say Air (Prevention and Control of Pollution) Act, 1981 or Water (Prevention and Control of Pollution) Act, 1974 etc. or statutes of the like nature which fasten certain duties and responsibilities statutorily upon such private bodies which they are bound to comply with. If they violate such a statutory provision a writ would certainly be issued for compliance of those provisions. For instance, if a private employer dispense with the service of its employee in violation of the provisions contained under the Industrial Disputes Act, in innumerable cases the High Court interfered and have issued the writ to the private bodies and the companies in that regard. But the difficulty in issuing a writ may arise where there may not be any non-compliance or violation of any statutory provision by the private body. In that event a writ may not be issued at all. Other remedies, as may be available, may have to be resorted to. 33. Merely because the Reserve Bank of India lays the banking policy in the interest of the banking system or in the interest of monetary stability or sound economic growth having due regard to the interests of the depositors etc. as provided under Section 5(c)(a) of the Banking Regulation Act does not mean that the private companies carrying on the business of or commercial activity of banking, discharge any public function or public duty. These are all regulatory measures applicable to those carrying on commercial activity in banking and these companies are to act according to these provisions failing which certain consequences follow as indicated in the Act itself. Provision regarding acquisition of a banking company by the Government, it may be pointed out that any private property can be acquired by the Government in public interest. It is now judicially accepted norm that private interest has to give way to the public interest. If a private property is acquired in public interest it does not mean that the party whose property is acquired is performing or discharging any function or duty of public character though it would be so for acquiring authority. 34. For the discussion held above, in our view, a private company carrying on banking business as a scheduled bank, cannot be termed as an institution or company carrying on any statutory or public duty. A private body or a person may be amenable to writ jurisdiction only where it may become necessary to compel such body or association to enforce any statutory obligations or such obligations of public nature casting positive obligation upon it. We don't find such conditions are fulfilled in respect of a private company carrying on a commercial activity of banking. Merely regulatory provisions to ensure such activity carried on by private bodies work within a discipline, do not confer any such status upon the company nor puts any such obligation upon it which may be enforced through issue of a writ under Article 226 of the Constitution. Present is a case of disciplinary action being taken against its employee by the appellant Bank. Respondent's service with the bank stands terminated. The action of the Bank was challenged by the respondent by filing a writ petition under Article 226 of the Constitution of India. The respondent is not trying to enforce any statutory duty on the part of the Bank. That being the position, the appeal deserves to be allowed.” 14. The decision of Ionic Metaliks v/s. Union of India reported in 2015 GLH (2) 156 (supra), the relevant paras read “4. The petitioners availed of a loan facility from the respondent No. 2 Punjab National Bank. The respondent No. 2 Bank noticed that the loan account of the petitioners was a Non -Performing Asset (NPA) since 30th June 2012 with the outstanding of Rs.1027 lac (as on the date of the NPA) including the interest at the applicable rate. 7. The petitioners availed of the facility of the Home Saver Account videsanction letter dated 30th September 2010 to the tune of Rs.3,45,87,900/ - in Account No. 48111724 from the respondent No. 2 - Standard Chartered Bank. The petitioners availed one more facility of the Home Saver Account by sanction letter dated 30th September 2010 of Rs.1,45,12,100/ - vide Account No. 48134899 from the respondent No. 48134899 was declared as NPA on 1st December 2013 whereas the Account No. 48111724 was declared as NPA on 10th January 2013. 24. Apart from the challenge to the Constitutional validity of the Master Circular issued by the Reserve Bank of India, the petitioners have also challenged the proposed action on the part of the Bank. 25. It has been vehemently submitted by the learned Advocates appearing on behalf of the petitioners that having regard to the contents of the notice it could be said that the Bank has already taken a decision to declare the petitioners as willful defaulters without disclosing any reasons in the show -cause notice and the show -cause notice is also bereft of the necessary particulars and details. In the absence of the necessary details and the reasons, the petitioners would not be able to effectively put forward their case. 26. Mr.Mitul Shelat, the learned Advocate appearing for the petitioners of Special Civil Application No. 10120 of 2014, submitted that although the impugned action is at the instance of a private Bank, viz. Standard Chartered Bank, yet the same figures as a scheduled Bank in the Second Schedule of the Reserve Bank of India Act, 1934, and therefore, would be amenable to the writ jurisdiction of this Court under Article 226 of the Constitution so far as the challenge to the notice is concerned. 27. In support of his submission that the Standard Chartered Bank is amenable to the writ jurisdiction of this Court under Article 226 of the Constitution being a State or an instrumentality of a State within the meaning of Article 12 of the Constitution of India, Mr.Shelat has placed reliance on the following Vandasjiswami Survarna Jayant Smarak Trust v. V.R. (ii) Praga Tools Corporation v. C.A. Imanual and others, AIR 1969 SC 1306; (iii) Apex Electricals v. ICICI Bank Ltd., 2003(2) GLR (iv) M/s A -One Mega Mart Pvt. Limited and others v. HDFC Bank and another, (2013)169 Punjab Law (v) M/s. Inder Surgical v. Union of India and others, 146. Since we have dealt with all the submissions regarding the constitutional validity of the Master Circular, we shall now look into the legality and validity of the notice issued by the Bank so far as the proposed action of declaring the petitioners as willful defaulters is concerned. 150. The show -cause notice is absolutely vague and contains no factual or other materials. We fail to understand on what basis the Bank has alleged in the show -cause notice that the funds provided by the Bank have been siphoned of and the same were used for the purpose other than the project for which the loan was sanctioned. If such are the nature of the allegations, then at least it is expected of the Bank to provide some materials so that the petitioners can meet with the same. It has to be held that there is violation of the principles of natural justice. One of the facets of the principles of natural justice is fairness which, we do not find on the part of the Bank in the proposed action. 176. What is discernible from an exhaustive review of the case -law, considered and discussed above, may be summed up thus : - (1) For issuing writ against a legal entity, it would have to be an instrumentality or agency of a State or should have been entrusted with such functions as are Governmental or closely associated therewith by being of public importance or being fundamental to the life of the people and hence Governmental. (2) A writ petition under Article 226 of the Constitution of India may be maintainable against (i) the State Government; (ii) Authority; (iii) a statutory body; (iv) an instrumentality or agency of the State; (v) a Company which is financed and owned by the State; (vi) a private body run substantially on State funding; (vii) a private body discharging public duty or positive obligation of public nature; and (viii) a person or a body under liability to discharge any function under any Statute, to compel it to perform such a statutory function. (3) Although a private Banking Company like the Standard Chartered Bank with which we are concerned is duty bound to follow and abide by the guidelines provided by the Reserve Bank of India for smooth conduct of its affairs in carrying on its business, yet those are of regulatory measures to keep a check and provide guideline and not a participatory dominance or control over the affairs of the Company. (4) A private Company carrying on Banking business as a Scheduled Bank cannot be termed as a Company carrying on any public function or public duty. (5) Normally, mandamus is issued to a public body or Authority to compel it to perform some public duty cast upon it by some statute or statutory rule. In exceptional cases a writ of mandamus or a writ in the nature of mandamus may issue to a private body, but only where a public duty is cast upon such private body by a statute or statutory rule and only to compel such body to perform its public duty. (6) Merely because a statue or a rule having the force of a statute requires a Company or some other body to do a particular thing, it does not possess the attribute of a statutory body. (7) If a private body is discharging a public function and the denial of any rights is in connection with the public duty imposed on such body, the public law remedy can be enforced. The duty cast on the public body may be either statutory or otherwise and the source of such power is immaterial but, nevertheless, there must be the public law element in such action. (8) According to Halsbury's Laws of England, 3rd Ed. Vol.30, p.682, "a public Authority is a body not necessarily a county council, municipal corporation or other local Authority which has public statutory duties to perform and which perform the duties and carries out its transactions for the benefit of the public and not for private profit". There cannot be any general definition of public Authority or public action. The facts of each case decide the point. 177. We are again posing a question for our consideration. The answer to the same should put an end to the matter. 178. The Master Circular relating to the willful defaulters has been issued by the Reserve Bank of India in exercise of its powers under the Banking Regulation Act, 1949, and the Reserve Bank of India Act, 1934, very much binding to the Standard Chartered Bank, therefore, while acting under the Master Circular for the purpose of declaring a particular borrower as a willful defaulter, does the Bank discharge a public duty. 179. To put it in other words, if a private Bank has failed to perform its duty in the sense that it has gone beyond the scope of the regulations of the Master Circular, or in performance of the same, has violated any of the fundamental rights or any other legal rights of the borrower against whom the action is proposed, then whether such a borrower can legitimately maintain a writ -application before this Court under Article 226 of the Constitution of India. 180. A body, public or private, should not be categorized as "amenable" or "not amenable" to writ jurisdiction. The most important and vital consideration should be the "function" test as regards the maintainability of a writ application. If a public duty or public function is involved, any body, public or private, concerned or connection with that duty or function, and limited to that, would be subject to judicial scrutiny under the extraordinary writ jurisdiction of Article 226 of the Constitution of India. 182. Applying the above test, the Bank herein cannot be called a public body. It has no duty towards the public. It's duty is towards its account holders, which may include the borrowers having availed of the loan facility. It has no power to take any action, or pass any order affecting the rights of the members of the public. The binding nature of its orders and actions is confined to its account holders and borrowers and to its employees. Its functions are also not akin to Governmental functions. 200.So far as the grievance of the petitioners of the Special Civil Application No. 10120 of 2014 as regards the legality and validity of the notice is concerned, it cannot be gone into as we have taken the view that the Standard Chartered Bank being a private Bank is not amenable to the writ jurisdiction of this Court. However, it would be open for the petitioners to seek appropriate legal remedy before the appropriate forum in accordance with law. No costs. 15. The Division Bench in Para-200 in the above- referred decision, considered the submissions, and it was held that the writ against the private Bank is not maintainable. 16. This Court in Special Civil Application No. 15813 of 2019 decided on 28.11.2019 in para-14 has held as under: “14. In my opinion, considering the decisions of the Federal Bank Limited (Supra) & Ionic Metalliks (Supra), a writ against Yes Bank Limited seeking a relief in the nature as is sought, cannot be said to be maintainable. While dealing with the maintainability of a petition under Article 226 of the Constitution of India, even otherwise as so submitted by Mr.Joshi since the petition involves serious disputed question of facts, this Court in exercise of powers under Article 226 of the Constitution of India, should not interfere with.” 17. In view of this Court, the shareholding in the respondent Bank would not be sufficient for the purpose of holding that the Bank is derelicting the public function. It is ultimately the transaction between the creditor and the borrower, and mere shareholding would not constitute the Bank within the purview of a State. No other documents have been produced on record by the petitioner except the shareholding of State Bank of India and LIC i.e. 30% and 4.90% respectively, which comes to 34.90% of shareholding in the respondent bank. Relying on the decision in Fedral Bank (supra) and Ionic Metaliks (supra), it was held as referred to above in para-14 in Special Civil Application No. 15813 of 2019 that a writ against Yes Bank Ltd. is not maintainable. The submission that after the order / decision rendered in Special Civil Application No. 15813 of 2019, the State Bank of India has 30% shareholding and LIC has 4.90% shareholding, resultantly, the respondent bank can be said to be derelicting functions of a “State”, in view of this Court, cannot be 18. The scope of ‘State’ is well-defined in Article-12. It includes legislative and executive organs of the union government and state government, statutory and non-statutory authorities, all local authorities and other authorities. 19. Referring to in the aforesaid judgment of the Hon’ble Supreme Court in Federal Bank Limited v/s. Sagar Thomas reported in AIR 2003 SC 4325, wherein, the Hon’ble Supreme Court has held that private financial institutions, carrying commercial activities or business would not come under the scope of ‘State’ as defined under Article 12, although, they are performing public duties. It was further held that private financial institutions do not receive any financial assistance from the Government and and no state protection is offered to such institutions. No part of their share capital was being held by the Government and the state of affairs is controlled by the Board of Directors, which are duly elected by the Bank’s shareholders. Normally, there is not any form of interference or partaking of the State or its authorities in the day-to-day affairs of the private financial institutions. It was further held that to maintain a healthy, economic atmosphere, regulatory measures are adopted and statutes were framed keeping in mind that the malfunctioning of such institutions or companies in the banking business, would not affect the stability of the fiscal equilibrium. Further, it was also held that for business and commercial activity, which had impact on economy but the same does not come within the ambit of discharging public duty. Eventhough, a private Bank could discharge the public duty, they cannot be said to be a State entity and they can benefit by absolving their obligations and liabilities by the State or State body. 20. The aforesaid ratio as laid down by the Hon’ble Supreme Court in AIR 2003 SC 4325 (supra) came to be followed by the Division Bench of this Court in 2015 GLH (2) 156. The aforesaid ratio is followed in Special Civil Application No. 15813 of 2019. The issue is not res-integra, as held in above-referred decisions that a writ would not be maintainable against a private Bank. 21. This Court also deems it apposite to refer to the decision rendered by the Hon’ble Supreme Court in Civil Appeal No. 257-259 of 2022 in the case of Phoenix ARC Private Limited v. Vishwa Bharati Vidya Mandir & Ors . The relevant para-12 reads thus: “12. Even otherwise, it is required to be noted that a writ petition against the private financial institution – ARC – appellant herein under Article 226 of the Constitution of India against the proposed action/actions under Section 13(4) of the SARFAESI Act can be said to be not maintainable. In the present case, the ARC proposed to take action/actions under the SARFAESI Act to recover the borrowed amount as a secured creditor. The ARC as such cannot be said to be performing public functions which are normally expected to be performed by the State authorities. During the course of a commercial transaction and under the contract, the bank/ARC lent the money to the borrowers herein and therefore the said activity of the bank/ARC cannot be said to be as performing a public function which is normally expected to be performed by the State authorities. If proceedings are initiated under the SARFAESI Act and/or any proposed action is to be taken and the borrower is aggrieved by any of the actions of the private bank/bank/ARC, borrower has to avail the remedy under the SARFAESI Act and no writ petition would lie and/or is maintainable and/or entertainable. Therefore, decisions of this Court in the cases of Praga Tools Corporation (supra) and Ramesh Ahluwalia (supra) relied upon by the learned counsel appearing on behalf of the borrowers are not of any assistance to the borrowers.” 22. In view of this Court, the submissions canvased by Mr. Soparkar, learned senior counsel require consideration. It can be said that Yes Bank being a private bank is not amenable to writ jurisdiction of this Court. Mere investment by the State Bank of India (S.B.I.) having shareholding of 30% in the respondent-Yes Bank cannot be termed as a ‘State’. The State Bank of India is not a government body, it is a statutory bank, and therefore, holding of shares by the SBI cannot be said to be a ‘State’ or Authority as defined under Article 12 of the Constitution of India. Similarly, the Life Corporation of India (LIC) is having invested 4.90% also cannot be said to be a State as defined under Article 12 of the Constitution of 23. For the foregoing reasons, without entering into the merits, in view of this Court, the respondent – Yes bank being a private Bank is not amenable to the writ jurisdiction of this Court. However, it would be open for the petitioner to seek appropriate legal remedy before the appropriate forum in accordance with law. The present petition stands dismissed, accordingly.
The Gujarat High Court has decided that Yes Bank is a private bank. This means it cannot be challenged using special court orders called 'writs' under Article 226 of the Constitution. The court also said that just because the State Bank of India (SBI) owns 30% of Yes Bank, it doesn't make Yes Bank a 'State' body under Article 12. Justice Vaibhavi D. Nanavati noted that private financial companies, even those doing business, don't count as 'State' under Article 12, even if they perform duties that seem public. The Gujarat High Court decided that Yes Bank Ltd. is a private bank. This means it is not subject to special court orders called 'writs' from a High Court under Article 226 of the Constitution. Justice Vaibhavi D. Nanavati further explained that private financial companies, even though they do business and sometimes carry out duties that seem public, are not considered part of the 'State' under Article 12. The court emphasized that these private companies do not get financial help from the government, and the government does not offer them special protection. The court noted that the government or its agencies usually do not get involved in the daily operations of private financial companies. Laws and rules are put in place to keep the economy healthy and stable. These rules make sure that problems in banking don't upset the whole financial system. Even if a private bank performs duties that benefit the public, it is not a 'State' organization. Therefore, it cannot rely on the government to take over its responsibilities or debts. The court also clarified that just because the State Bank of India (SBI) has invested in Yes Bank and owns 30% of its shares, this does not make Yes Bank a 'State' body. The court stated that the State Bank of India is a bank set up by a specific law, not a direct government department. Therefore, SBI owning shares in a company does not make that company a 'State' or an 'Authority' as defined under Article 12 of the Constitution of India. The person or company that brought this case, called the Petitioner, wanted the court to stop Yes Bank from labeling them as a 'wilful defaulter'. The Petitioner argued that the notice from the bank about missed payments was unclear and did not give enough information for them to answer well. The Petitioner's main argument was that they had been making their payments to Yes Bank regularly. On the other hand, Yes Bank first argued that the legal case itself should not be heard in court. They said this because Yes Bank is a private bank. To argue against the bank's point, the Petitioner highlighted that Yes Bank's ownership had recently changed. For example, the State Bank of India (SBI) now owned 30% of its shares, and the Life Insurance Corporation of India (LIC) owned 4.90%. The Petitioner claimed that these investments meant the government had strong and important control over the bank. Justice Nanavati pointed to an earlier court case, Federal Bank Ltd. v. Sagar Thomas & ors. She explained that just because the Reserve Bank of India makes rules for banking to protect the money system, as stated in Section 5(c)(a) of the Banking Regulation Act, it does not mean private companies doing banking business are doing public duties or jobs. The court also mentioned another case, Ionic Metaliks v. Union of India, which involved similar facts. In that case, the ability to issue special court orders or 'writs' did not apply to Standard Chartered Bank because it was a private bank. That case created a 'function test' which stated: The most important thing to consider for whether a special court order can be requested is what 'function' is being performed. If a public duty or public function is involved, then any organization, whether public or private, that is connected to that duty or function can be reviewed by the court under the special 'writ power' of Article 226 of the Constitution of India, but only for that specific duty. The judge also affirmed that the definition of 'State' in Article 12 is clearly defined. Private financial companies do not get financial help from the government, which means the government does not offer them special protection. Considering these rules and previous court decisions, and without looking at the actual details of the Petitioner's complaint, the High Court instructed the Petitioner to find the right legal solution in the correct court or legal place.
3. As the identical issue involved in both the aforesaid petitions, the same is decided by way of common order and Special Civil Application No. 16268 of 2020 is treated as lead 4. The present petition under Article 226 of the Constitution of India is filed by the petitioners seeking the following reliefs, which reads thus: “(A) to quash and set aside the notice dated 14.08.2020 of the Respondent Bank; (B) direct the Respondent Bank, its servants and agents to act in accordance with law and to refrain from taking any steps or further steps in the matter of proceedings against the Petitioner No.1 as a willful defaulter; (C) direct the Respondent Bank to produce the records of the Respondent relating to possible classification of the Petitioners as willful defaulter; (D) to direct that pending the hearing and final disposal of the present Special Civil Application the proceedings pertaining to classification of the Petitioners as willful (E) To pass such other and further order(s) as this Hon’ble Court deems fit and proper in the facts and circumstances of the case; (F) To provide for the costs of the present 5. The brief facts leading to filing of the present petition are stated thus: 5.1. The petitioners have challenged the illegal actions undertaken by the respondent in sheer contravention of the terms and conditions of the Master Circular namely “Master Circular on Willful Defaulters’ dated 01.07.2015 issued by the Reserve Bank of India (RBI), whereby, the respondent has threatened to declare the petitioners as willful defaulter by issuing impugned show cause notice dated 14.08.2020 which was received by the petitioner herein through e-mail on 5.2. It is stated that, in view of above, the petitioners are constrained to approach this Court invoking writ jurisdiction under Article 226 of the Constitution of India. 6. Heard Mr. Ayaan A. Patel, learned counsel appearing for the petitioners. 6.1. Mr. Ayaan A. Patel, learned counsel appearing for the petitioners submitted that the impugned show cause notice dated 14.08.2020, alleges that the petitioners have committed defaults in repayment of the amount due and payable to the respondent bank under the Facilities Agreement. It is further stated that, the petitioner no.1 has been making regular payments to the respondent Bank, with the last payment being made on 18.10.2019, and accordingly, the petitioner no.1 in good faith and bona-fide has made payment, despite the fact that actions / inactions on the part of the respondent were causing immense distress and financial loss to the petitioner no.1. While referring various other submissions, main bone of the contention of Mr. Patel, learned counsel appearing for the petitioners is that the impugned show cause notice can be said to be vague and it does not refer the necessary particulars to facilitate the petitioner to answer the 6.2. During the course of hearing, it was also submitted by Mr. Patel, learned counsel that the petitioners have replied to the said show cause notice dated 14.08.2020, however, the respondent bank has failed to provide necessary documents / documents as sought for by the petitioners. 6.3. In view of above, Mr. Patel, learned counsel submitted that the show cause notice being devoid of any clarity and being vague, required to be quashed and set aside. 7. Heard Mr. Saurabh N. Soparkar, learned senior counsel assisted by Mr. Arjun Joshi, learned counsel for Ms. Gargi Vyas, learned counsel appearing for the respondent-Bank. 7.1. Mr. Saurabh N. Soparkar, learned senior counsel raised preliminary objection with regard to the maintainability of the present petition. Mr. Soparkar, learned senior counsel at the outset submitted that the writ under Article 226 of the Constitution of India is not maintainable against a Private Bank. The respondent being a Private Bank, the aforesaid petition would not be maintainable against the respondent- Bank and the present petition be dismissed on the aforesaid ground only. 7.2. Mr. Soparkar, learned senior counsel submitted that the aforesaid issue is no more res-integra. Mr. Soparkar, learned senior counsel relied on the judgment of Ionic Metaliks v. Union of India reported in 2015 GLH(2) 156. Mr. Soparkar, learned senior counsel further relied on the judgment passed by the coordinate bench of this Court in Special Civil Application No. 15813 of 2019 decided on 28.11.2019. 7.3. Relying on the aforesaid judgment, Mr. Soparkar, learned senior counsel submitted that the Division Bench of this Court in the case of Ionic Metaliks held that a writ would not maintainable against the private bank. The said ratio as laid down by the Division Bench was followed in Special Civil Application No. 15831 of 2019, wherein, in an identical issue a writ was sought for against the Yes Bank and it is held that the respondent - Yes Bank being a private bank, writ against the said Bank is not maintainable. 8.. In response to the aforesaid contentions, Mr. Ayaan Patel, learned counsel appearing for the petitioner submitted that after the order came to be passed in Special Civil Application No. 15813 of 2019, the present respondent bank has undergone change in the shareholding pattern and relying on the said documents produced on record the shareholding pattern and submitted that the State Bank of India (SBI) has 30% and Life Insurance Corporation of India (LIC) has 4.90% shareholding of Yes Bank- respondent bank, which comes to total 34.90% shareholding in the respondent bank and resultantly the State has deep and persuasive control over the 9. In view of above, Mr. Patel, learned counsel submitted that it can be said that the respondent bank is derelicting the duty of public nature, and therefore, it can be said to be a ‘State’ and also submitted that in view of the fact that the respondent bank has been derelicting the public function, a writ would be maintainable against the respondent 10. Heard the learned counsel appearing for the respective parties. 11. Since the preliminary objection has raised by the respondent bank, this Court finds it appropriate to decide the said issue as a preliminary issue. 12. In view of the facts as stated above, which are germane for adjudication of the present petition, they are not repeated, as there are undisputed facts for determination of the present dispute / issue. 13. In case of Federal Bank Ltd. v. Sagar Thomas & ors. reported in AIR 2003 SC 4325, the Hon’ble Supreme Court has observed thus: Companies Act for the purposes of carrying on any trade or business is a private enterprise to earn livelihood and to make profits out of such activities. Banking is also a kind of profession and a commercial activity, the primary motive behind it can well be said to earn returns and profits. Since time immemorial, such activities have been carried on by individuals generally. It is a private affair of the company though case of nationalized banks stands on a different footing. There may, well be companies, in which majority of the share capital may be contributed out of the State funds and in that view of the matter there may be more participation or dominant participation of the State in managing the affairs of the company. But in the present case we are concerned with a banking company which has its own resources to raise its funds without any contribution or shareholding by the State. It has its own Board of Directors elected by its shareholders. It works like any other private company in the banking business having no monopoly status at all. Any company carrying on banking business with a capital of five lacs will become a scheduled bank. All the same, banking activity as a whole carried on by various banks undoubtedly has an impact and effect on the economy of the country in general. Money of the shareholders and the depositors is with such companies, carrying on banking activity. The banks finance the borrowers on any given rate of interest at a particular time. They advance loans as against securities. Therefore, it is obviously necessary to have regulatory check over such activities in the interest of the company itself, the shareholders, the depositors as well as to maintain the proper financial equilibrium of the national economy. The Banking companies have not been set up for the purposes of building economy of the State on the other hand such private companies have been voluntarily established for their own purposes and interest but their activities are kept under check so that their activities may not go wayward and harm the economy in general. A private banking company with all freedom that it has, has to act in a manner that it may not be in conflict with or against the fiscal policies of the State and for such purposes, guidelines are provided by the Reserve Bank so that a proper fiscal discipline, to conduct its affairs in carrying on its business, is maintained. So as to ensure adherence to such fiscal discipline, if need be, at times even the management of the company can be taken over. Nonetheless, as observed earlier, these are all regulatory measures to keep a check and provide guideline and not a participatory dominance or control over the affairs of the company. For other companies in general carrying on other business activities may be manufacturing, other industries or any business, such checks are provided under the provisions of the Companies Act, as indicated earlier. There also, the main consideration is that the company itself may not sink because of its own mismanagement or the interest of the shareholders or people generally may not be jeopardized for that reason. Besides taking care of such interest as indicated above, there is no other interest of the State, to control the affairs and management of the private companies. The care is taken in regard to the industries covered under the Industries (Development and Regulation) Act, 1951 that their production which is important for the economy may not go down yet the business activity is carried on by such companies or corporations which only remains a private activity of the entrepreneurs/companies. 28. Such private companies would normally not be amenable to the writ jurisdiction under Article 226 of the Constitution. But in certain circumstances a writ may issue to such private bodies or persons as there may be statutes which need to be complied with by all concerned including the private companies. For example, there are certain legislations like the Industrial Disputes Act, the Minimum Wages Act, the Factories Act or for maintaining proper environment say Air (Prevention and Control of Pollution) Act, 1981 or Water (Prevention and Control of Pollution) Act, 1974 etc. or statutes of the like nature which fasten certain duties and responsibilities statutorily upon such private bodies which they are bound to comply with. If they violate such a statutory provision a writ would certainly be issued for compliance of those provisions. For instance, if a private employer dispense with the service of its employee in violation of the provisions contained under the Industrial Disputes Act, in innumerable cases the High Court interfered and have issued the writ to the private bodies and the companies in that regard. But the difficulty in issuing a writ may arise where there may not be any non-compliance or violation of any statutory provision by the private body. In that event a writ may not be issued at all. Other remedies, as may be available, may have to be resorted to. 33. Merely because the Reserve Bank of India lays the banking policy in the interest of the banking system or in the interest of monetary stability or sound economic growth having due regard to the interests of the depositors etc. as provided under Section 5(c)(a) of the Banking Regulation Act does not mean that the private companies carrying on the business of or commercial activity of banking, discharge any public function or public duty. These are all regulatory measures applicable to those carrying on commercial activity in banking and these companies are to act according to these provisions failing which certain consequences follow as indicated in the Act itself. Provision regarding acquisition of a banking company by the Government, it may be pointed out that any private property can be acquired by the Government in public interest. It is now judicially accepted norm that private interest has to give way to the public interest. If a private property is acquired in public interest it does not mean that the party whose property is acquired is performing or discharging any function or duty of public character though it would be so for acquiring authority. 34. For the discussion held above, in our view, a private company carrying on banking business as a scheduled bank, cannot be termed as an institution or company carrying on any statutory or public duty. A private body or a person may be amenable to writ jurisdiction only where it may become necessary to compel such body or association to enforce any statutory obligations or such obligations of public nature casting positive obligation upon it. We don't find such conditions are fulfilled in respect of a private company carrying on a commercial activity of banking. Merely regulatory provisions to ensure such activity carried on by private bodies work within a discipline, do not confer any such status upon the company nor puts any such obligation upon it which may be enforced through issue of a writ under Article 226 of the Constitution. Present is a case of disciplinary action being taken against its employee by the appellant Bank. Respondent's service with the bank stands terminated. The action of the Bank was challenged by the respondent by filing a writ petition under Article 226 of the Constitution of India. The respondent is not trying to enforce any statutory duty on the part of the Bank. That being the position, the appeal deserves to be allowed.” 14. The decision of Ionic Metaliks v/s. Union of India reported in 2015 GLH (2) 156 (supra), the relevant paras read “4. The petitioners availed of a loan facility from the respondent No. 2 Punjab National Bank. The respondent No. 2 Bank noticed that the loan account of the petitioners was a Non -Performing Asset (NPA) since 30th June 2012 with the outstanding of Rs.1027 lac (as on the date of the NPA) including the interest at the applicable rate. 7. The petitioners availed of the facility of the Home Saver Account videsanction letter dated 30th September 2010 to the tune of Rs.3,45,87,900/ - in Account No. 48111724 from the respondent No. 2 - Standard Chartered Bank. The petitioners availed one more facility of the Home Saver Account by sanction letter dated 30th September 2010 of Rs.1,45,12,100/ - vide Account No. 48134899 from the respondent No. 48134899 was declared as NPA on 1st December 2013 whereas the Account No. 48111724 was declared as NPA on 10th January 2013. 24. Apart from the challenge to the Constitutional validity of the Master Circular issued by the Reserve Bank of India, the petitioners have also challenged the proposed action on the part of the Bank. 25. It has been vehemently submitted by the learned Advocates appearing on behalf of the petitioners that having regard to the contents of the notice it could be said that the Bank has already taken a decision to declare the petitioners as willful defaulters without disclosing any reasons in the show -cause notice and the show -cause notice is also bereft of the necessary particulars and details. In the absence of the necessary details and the reasons, the petitioners would not be able to effectively put forward their case. 26. Mr.Mitul Shelat, the learned Advocate appearing for the petitioners of Special Civil Application No. 10120 of 2014, submitted that although the impugned action is at the instance of a private Bank, viz. Standard Chartered Bank, yet the same figures as a scheduled Bank in the Second Schedule of the Reserve Bank of India Act, 1934, and therefore, would be amenable to the writ jurisdiction of this Court under Article 226 of the Constitution so far as the challenge to the notice is concerned. 27. In support of his submission that the Standard Chartered Bank is amenable to the writ jurisdiction of this Court under Article 226 of the Constitution being a State or an instrumentality of a State within the meaning of Article 12 of the Constitution of India, Mr.Shelat has placed reliance on the following Vandasjiswami Survarna Jayant Smarak Trust v. V.R. (ii) Praga Tools Corporation v. C.A. Imanual and others, AIR 1969 SC 1306; (iii) Apex Electricals v. ICICI Bank Ltd., 2003(2) GLR (iv) M/s A -One Mega Mart Pvt. Limited and others v. HDFC Bank and another, (2013)169 Punjab Law (v) M/s. Inder Surgical v. Union of India and others, 146. Since we have dealt with all the submissions regarding the constitutional validity of the Master Circular, we shall now look into the legality and validity of the notice issued by the Bank so far as the proposed action of declaring the petitioners as willful defaulters is concerned. 150. The show -cause notice is absolutely vague and contains no factual or other materials. We fail to understand on what basis the Bank has alleged in the show -cause notice that the funds provided by the Bank have been siphoned of and the same were used for the purpose other than the project for which the loan was sanctioned. If such are the nature of the allegations, then at least it is expected of the Bank to provide some materials so that the petitioners can meet with the same. It has to be held that there is violation of the principles of natural justice. One of the facets of the principles of natural justice is fairness which, we do not find on the part of the Bank in the proposed action. 176. What is discernible from an exhaustive review of the case -law, considered and discussed above, may be summed up thus : - (1) For issuing writ against a legal entity, it would have to be an instrumentality or agency of a State or should have been entrusted with such functions as are Governmental or closely associated therewith by being of public importance or being fundamental to the life of the people and hence Governmental. (2) A writ petition under Article 226 of the Constitution of India may be maintainable against (i) the State Government; (ii) Authority; (iii) a statutory body; (iv) an instrumentality or agency of the State; (v) a Company which is financed and owned by the State; (vi) a private body run substantially on State funding; (vii) a private body discharging public duty or positive obligation of public nature; and (viii) a person or a body under liability to discharge any function under any Statute, to compel it to perform such a statutory function. (3) Although a private Banking Company like the Standard Chartered Bank with which we are concerned is duty bound to follow and abide by the guidelines provided by the Reserve Bank of India for smooth conduct of its affairs in carrying on its business, yet those are of regulatory measures to keep a check and provide guideline and not a participatory dominance or control over the affairs of the Company. (4) A private Company carrying on Banking business as a Scheduled Bank cannot be termed as a Company carrying on any public function or public duty. (5) Normally, mandamus is issued to a public body or Authority to compel it to perform some public duty cast upon it by some statute or statutory rule. In exceptional cases a writ of mandamus or a writ in the nature of mandamus may issue to a private body, but only where a public duty is cast upon such private body by a statute or statutory rule and only to compel such body to perform its public duty. (6) Merely because a statue or a rule having the force of a statute requires a Company or some other body to do a particular thing, it does not possess the attribute of a statutory body. (7) If a private body is discharging a public function and the denial of any rights is in connection with the public duty imposed on such body, the public law remedy can be enforced. The duty cast on the public body may be either statutory or otherwise and the source of such power is immaterial but, nevertheless, there must be the public law element in such action. (8) According to Halsbury's Laws of England, 3rd Ed. Vol.30, p.682, "a public Authority is a body not necessarily a county council, municipal corporation or other local Authority which has public statutory duties to perform and which perform the duties and carries out its transactions for the benefit of the public and not for private profit". There cannot be any general definition of public Authority or public action. The facts of each case decide the point. 177. We are again posing a question for our consideration. The answer to the same should put an end to the matter. 178. The Master Circular relating to the willful defaulters has been issued by the Reserve Bank of India in exercise of its powers under the Banking Regulation Act, 1949, and the Reserve Bank of India Act, 1934, very much binding to the Standard Chartered Bank, therefore, while acting under the Master Circular for the purpose of declaring a particular borrower as a willful defaulter, does the Bank discharge a public duty. 179. To put it in other words, if a private Bank has failed to perform its duty in the sense that it has gone beyond the scope of the regulations of the Master Circular, or in performance of the same, has violated any of the fundamental rights or any other legal rights of the borrower against whom the action is proposed, then whether such a borrower can legitimately maintain a writ -application before this Court under Article 226 of the Constitution of India. 180. A body, public or private, should not be categorized as "amenable" or "not amenable" to writ jurisdiction. The most important and vital consideration should be the "function" test as regards the maintainability of a writ application. If a public duty or public function is involved, any body, public or private, concerned or connection with that duty or function, and limited to that, would be subject to judicial scrutiny under the extraordinary writ jurisdiction of Article 226 of the Constitution of India. 182. Applying the above test, the Bank herein cannot be called a public body. It has no duty towards the public. It's duty is towards its account holders, which may include the borrowers having availed of the loan facility. It has no power to take any action, or pass any order affecting the rights of the members of the public. The binding nature of its orders and actions is confined to its account holders and borrowers and to its employees. Its functions are also not akin to Governmental functions. 200.So far as the grievance of the petitioners of the Special Civil Application No. 10120 of 2014 as regards the legality and validity of the notice is concerned, it cannot be gone into as we have taken the view that the Standard Chartered Bank being a private Bank is not amenable to the writ jurisdiction of this Court. However, it would be open for the petitioners to seek appropriate legal remedy before the appropriate forum in accordance with law. No costs. 15. The Division Bench in Para-200 in the above- referred decision, considered the submissions, and it was held that the writ against the private Bank is not maintainable. 16. This Court in Special Civil Application No. 15813 of 2019 decided on 28.11.2019 in para-14 has held as under: “14. In my opinion, considering the decisions of the Federal Bank Limited (Supra) & Ionic Metalliks (Supra), a writ against Yes Bank Limited seeking a relief in the nature as is sought, cannot be said to be maintainable. While dealing with the maintainability of a petition under Article 226 of the Constitution of India, even otherwise as so submitted by Mr.Joshi since the petition involves serious disputed question of facts, this Court in exercise of powers under Article 226 of the Constitution of India, should not interfere with.” 17. In view of this Court, the shareholding in the respondent Bank would not be sufficient for the purpose of holding that the Bank is derelicting the public function. It is ultimately the transaction between the creditor and the borrower, and mere shareholding would not constitute the Bank within the purview of a State. No other documents have been produced on record by the petitioner except the shareholding of State Bank of India and LIC i.e. 30% and 4.90% respectively, which comes to 34.90% of shareholding in the respondent bank. Relying on the decision in Fedral Bank (supra) and Ionic Metaliks (supra), it was held as referred to above in para-14 in Special Civil Application No. 15813 of 2019 that a writ against Yes Bank Ltd. is not maintainable. The submission that after the order / decision rendered in Special Civil Application No. 15813 of 2019, the State Bank of India has 30% shareholding and LIC has 4.90% shareholding, resultantly, the respondent bank can be said to be derelicting functions of a “State”, in view of this Court, cannot be 18. The scope of ‘State’ is well-defined in Article-12. It includes legislative and executive organs of the union government and state government, statutory and non-statutory authorities, all local authorities and other authorities. 19. Referring to in the aforesaid judgment of the Hon’ble Supreme Court in Federal Bank Limited v/s. Sagar Thomas reported in AIR 2003 SC 4325, wherein, the Hon’ble Supreme Court has held that private financial institutions, carrying commercial activities or business would not come under the scope of ‘State’ as defined under Article 12, although, they are performing public duties. It was further held that private financial institutions do not receive any financial assistance from the Government and and no state protection is offered to such institutions. No part of their share capital was being held by the Government and the state of affairs is controlled by the Board of Directors, which are duly elected by the Bank’s shareholders. Normally, there is not any form of interference or partaking of the State or its authorities in the day-to-day affairs of the private financial institutions. It was further held that to maintain a healthy, economic atmosphere, regulatory measures are adopted and statutes were framed keeping in mind that the malfunctioning of such institutions or companies in the banking business, would not affect the stability of the fiscal equilibrium. Further, it was also held that for business and commercial activity, which had impact on economy but the same does not come within the ambit of discharging public duty. Eventhough, a private Bank could discharge the public duty, they cannot be said to be a State entity and they can benefit by absolving their obligations and liabilities by the State or State body. 20. The aforesaid ratio as laid down by the Hon’ble Supreme Court in AIR 2003 SC 4325 (supra) came to be followed by the Division Bench of this Court in 2015 GLH (2) 156. The aforesaid ratio is followed in Special Civil Application No. 15813 of 2019. The issue is not res-integra, as held in above-referred decisions that a writ would not be maintainable against a private Bank. 21. This Court also deems it apposite to refer to the decision rendered by the Hon’ble Supreme Court in Civil Appeal No. 257-259 of 2022 in the case of Phoenix ARC Private Limited v. Vishwa Bharati Vidya Mandir & Ors . The relevant para-12 reads thus: “12. Even otherwise, it is required to be noted that a writ petition against the private financial institution – ARC – appellant herein under Article 226 of the Constitution of India against the proposed action/actions under Section 13(4) of the SARFAESI Act can be said to be not maintainable. In the present case, the ARC proposed to take action/actions under the SARFAESI Act to recover the borrowed amount as a secured creditor. The ARC as such cannot be said to be performing public functions which are normally expected to be performed by the State authorities. During the course of a commercial transaction and under the contract, the bank/ARC lent the money to the borrowers herein and therefore the said activity of the bank/ARC cannot be said to be as performing a public function which is normally expected to be performed by the State authorities. If proceedings are initiated under the SARFAESI Act and/or any proposed action is to be taken and the borrower is aggrieved by any of the actions of the private bank/bank/ARC, borrower has to avail the remedy under the SARFAESI Act and no writ petition would lie and/or is maintainable and/or entertainable. Therefore, decisions of this Court in the cases of Praga Tools Corporation (supra) and Ramesh Ahluwalia (supra) relied upon by the learned counsel appearing on behalf of the borrowers are not of any assistance to the borrowers.” 22. In view of this Court, the submissions canvased by Mr. Soparkar, learned senior counsel require consideration. It can be said that Yes Bank being a private bank is not amenable to writ jurisdiction of this Court. Mere investment by the State Bank of India (S.B.I.) having shareholding of 30% in the respondent-Yes Bank cannot be termed as a ‘State’. The State Bank of India is not a government body, it is a statutory bank, and therefore, holding of shares by the SBI cannot be said to be a ‘State’ or Authority as defined under Article 12 of the Constitution of India. Similarly, the Life Corporation of India (LIC) is having invested 4.90% also cannot be said to be a State as defined under Article 12 of the Constitution of 23. For the foregoing reasons, without entering into the merits, in view of this Court, the respondent – Yes bank being a private Bank is not amenable to the writ jurisdiction of this Court. However, it would be open for the petitioner to seek appropriate legal remedy before the appropriate forum in accordance with law. The present petition stands dismissed, accordingly.
The Gujarat High Court has decided that Yes Bank is a private bank. This means it cannot be challenged using special court orders called 'writs' under Article 226 of the Constitution. The court also said that just because the State Bank of India (SBI) owns 30% of Yes Bank, it doesn't make Yes Bank a 'State' body under Article 12. Justice Vaibhavi D. Nanavati noted that private financial companies, even those doing business, don't count as 'State' under Article 12, even if they perform duties that seem public. The Gujarat High Court decided that Yes Bank Ltd. is a private bank. This means it is not subject to special court orders called 'writs' from a High Court under Article 226 of the Constitution. Justice Vaibhavi D. Nanavati further explained that private financial companies, even though they do business and sometimes carry out duties that seem public, are not considered part of the 'State' under Article 12. The court emphasized that these private companies do not get financial help from the government, and the government does not offer them special protection. The court noted that the government or its agencies usually do not get involved in the daily operations of private financial companies. Laws and rules are put in place to keep the economy healthy and stable. These rules make sure that problems in banking don't upset the whole financial system. Even if a private bank performs duties that benefit the public, it is not a 'State' organization. Therefore, it cannot rely on the government to take over its responsibilities or debts. The court also clarified that just because the State Bank of India (SBI) has invested in Yes Bank and owns 30% of its shares, this does not make Yes Bank a 'State' body. The court stated that the State Bank of India is a bank set up by a specific law, not a direct government department. Therefore, SBI owning shares in a company does not make that company a 'State' or an 'Authority' as defined under Article 12 of the Constitution of India. The person or company that brought this case, called the Petitioner, wanted the court to stop Yes Bank from labeling them as a 'wilful defaulter'. The Petitioner argued that the notice from the bank about missed payments was unclear and did not give enough information for them to answer well. The Petitioner's main argument was that they had been making their payments to Yes Bank regularly. On the other hand, Yes Bank first argued that the legal case itself should not be heard in court. They said this because Yes Bank is a private bank. To argue against the bank's point, the Petitioner highlighted that Yes Bank's ownership had recently changed. For example, the State Bank of India (SBI) now owned 30% of its shares, and the Life Insurance Corporation of India (LIC) owned 4.90%. The Petitioner claimed that these investments meant the government had strong and important control over the bank. Justice Nanavati pointed to an earlier court case, Federal Bank Ltd. v. Sagar Thomas & ors. She explained that just because the Reserve Bank of India makes rules for banking to protect the money system, as stated in Section 5(c)(a) of the Banking Regulation Act, it does not mean private companies doing banking business are doing public duties or jobs. The court also mentioned another case, Ionic Metaliks v. Union of India, which involved similar facts. In that case, the ability to issue special court orders or 'writs' did not apply to Standard Chartered Bank because it was a private bank. That case created a 'function test' which stated: The most important thing to consider for whether a special court order can be requested is what 'function' is being performed. If a public duty or public function is involved, then any organization, whether public or private, that is connected to that duty or function can be reviewed by the court under the special 'writ power' of Article 226 of the Constitution of India, but only for that specific duty. The judge also affirmed that the definition of 'State' in Article 12 is clearly defined. Private financial companies do not get financial help from the government, which means the government does not offer them special protection. Considering these rules and previous court decisions, and without looking at the actual details of the Petitioner's complaint, the High Court instructed the Petitioner to find the right legal solution in the correct court or legal place.
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2. The challenge in this writ petition is to the order dated 6 September 2019 passed by Sub-divisional Officer-cum-Presiding Officer of the Tribunal constituted under Section 7 of the Maintenance And Welfare of Parents And Senior Citizens Act, 2007 (Act of 2007). Vide order impugned herein, the Petitioners have been directed to vacate and handover possession of room no.3/6, Gurukrupa sg 3/8 12.wp4970-19.doc Mumbai 400 060 (disputed premises) to Respondent No.3 within a period of 15 days. 3. Facts giving rise to the present petition are as follows:- Respondent No.3 is step-mother of the Petitioners herein. On the demise of mother of the Petitioners, their father-Vaijanath married Respondent No.3. Vaijanath was serving with Morarji Mills. He passed away in 2014. The disputed premises belonged to deceased Vaijanath. Both the Petitioners were living separately from their father and Respondent No.3. Both the Petitioners would visit the disputed premises. Both of them had occasionally stayed in the disputed premises. Petitioner No.1 is gainfully employed. Petitioner No.2 is differently abled (psychologically). Both the Petitioners would harass and ill-treat Respondent No.3 on the demise of their father. It is the case of Respondent No.3 that she was 60 plus and, thus, a senior citizen. It is her right to stay peacefully and comfortably in the disputed premises. The Petitioners, by one or the other way, harassed and ill- treated her and thereby made her living miserable. She, therefore, filed application to the tribunal and urged for eviction of the Petitioners from the disputed premises. 4. The Petitioners have their side of story to tell. According sg 4/8 12.wp4970-19.doc to them, their mother passed away when Petitioner Nos.1 and 2 were 8 and 1½ years of age, respectively. Respondent No.3, being step- mother, ill-treated the Petitioners. The Petitioners, therefore, took shelter at the house of their maternal grand-mother. On the demise of their grand-mother, the Petitioners came back to the disputed premises and started living with their father and the step-mother/Respondent No.3. According to them, Respondent No.3 earns her living. She has been staying at her sister’s residence. The Petitioners have right, title and interest in the disputed premises, since they inherited the same as Class I heirs on the demise of their father. According to them, the tribunal has only jurisdiction to grant maintenance in terms of quantum of money. The tribunal has no jurisdiction to pass any other order, specifically one in question in this writ petition. 5. Both the learned Advocates made their submissions consistent with their respective case referred to hereinabove. Learned Advocate for the Petitioners further submitted that Respondent No.3 got her name recorded in the in the society record. She wanted to sell out the disputed premises. The Petitioners, being Class I heirs of deceased Vaijanath, have every right to stay in the disputed premises. The impugned order herein is, thus, liable to be set aside. 6. Considered the submissions advanced. Perused the order impugned herein. Also gone through the authorities relied on. sg 5/8 12.wp4970-19.doc 7. The Statement of Objects and Reasons of the Act of 2007 is – Traditional norms and values of the Indian society laid stress on providing care for the elderly. However, due to withering of the joint family system, a large number of elderly are not being looked after by their family. Consequently, many older persons, particularly widowed women are now forced to spend their twilight years all alone and are exposed to emotional neglect and to lack of physical and financial support. This clearly reveals that ageing has become a major social challenge and there is a need to give more attention to the care and protection for the older persons. Though the parents can claim maintenance under the Code of Criminal Procedure, 1973, the procedure is both time-consuming as well as expensive. Hence, there is a need to have simple, inexpensive and speedy provisions to claim maintenance for parents. Section 2(b) of the Act of 2007 defines the term “maintenance” to include provision for food, clothing, residence and medical attendance and treatment. Sub-clause (d) of Section 2 defines the term “parent” to mean father or mother whether biological, adoptive or step father or step mother, as the case may be, whether or not the father or the mother is a senior citizen. 8. It is true that the tribunal has jurisdiction to grant sg 6/8 12.wp4970-19.doc maintenance allowance not exceeding Rs.10,000/- per month. Section 5 of the Act of 2007 speaks of application for maintenance. If one goes by the definition of the term maintenance, it includes a provision for residence. 9. The disputed premises originally belonged to late Vaijanath. There is nothing to support the claim of the Petitioners that Vaijanath was unemployed and the disputed premises was purchased out of the funds provided by their natural mother. True, on the demise of Vaijanath, the Petitioners and Respondent No.3, being Class I heirs, inherited the disputed premises and thereby became entitled to occupy the said premises. During the submission advanced by the learned Advocates for the parties, it has come on record that the disputed premises are vacant. Both the Petitioners have been residing in a premises taken on rent. For non-payment of electricity charges, electric supply of the premises has been discontinued. Other dues of the society, such as maintenance and drainage charges, etc., are outstanding. Respondent No.3 is said to have been residing at her sister’s house. Necessarily the same is at the mercy of her sister. Respondent No.3 is above 65 years of age. Being one of the Class I heirs of deceased Vaijanath, she is entitled to reside in the disputed premises. Learned Advocate for the Petitioners submitted before this Court that Vaijanath did not leave behind any other property. It is the case of Respondent No.3 that deceased was allotted a room as he was sg 7/8 12.wp4970-19.doc in service with Morarji Mills. It is the specific case of Respondent No.3 that all the papers in relation to the said room are with Petitioner No.1-Mayur, who is little over 45 years of age. He is admittedly gainfully employed. Petitioner No.2 is psychologically disabled. Petitioner No.1 takes her care. He admits to have been residing in a room taken on rent. Respondent No.3, being in the evening of her life, does need comfort and peace. The relations between the Petitioners and her were strained. She being the stepmother of the Petitioners, there is no likelihood of all of them residing together peacefully in a disputed premises. In the facts and circumstances of the case, the tribunal was, therefore, justified to pass the order directing the Petitioners to vacate the dispute premises and handover its possession to Respondent No.3. The Court finds no reason to interfere with the impugned order. True, the Petitioners have a reasonable apprehension that Respondent No.3 may create third party interest in respect of the disputed premises or may bring her sister and her relations to stay with 10. This Court is, therefore, inclined to direct Respondent No.3 not to create any third party interest in respect of the disputed premises, which would be prejudicial to the right, title and interest of the Petitioners herein. 11. With the aforesaid direction, the writ petition is dismissed.
The Bombay High Court recently agreed with a decision to remove two individuals who were accused of treating their stepmother badly from their deceased father's house. The court noted that the older stepmother needed comfort and peace as she aged. Justice RG Avachat supported the original order from a special court, known as a tribunal, which was set up under a law called the Maintenance And Welfare of Parents And Senior Citizens Act of 2007. This order told the two individuals to leave the house. The court stated that the stepmother, being older, truly needs comfort and peace. It observed that the relationship between the two individuals and her was tense. Since she is their stepmother, it was unlikely they could all live together peacefully in the house. Because of this, the special court was right to order the two individuals to leave the house and give control of it to their stepmother. The father of the two individuals died in 2014. Their stepmother claimed that they treated her badly after their father passed away. However, the two individuals argued that their stepmother treated them poorly, which is why they went to live with their maternal grandmother. After their grandmother died, they moved back to the house. The individuals argued that they had a right to the house because they inherited it, and therefore, they could not be made to leave. The special court ordered them to move out of the house. This decision led to the current legal challenge, called a writ petition, filed by the two individuals. The individuals argued that the special court only had the power to order money for support, not to make any other decisions, like the order for them to leave the house. The High Court pointed out that the house was empty at the time, and the stepmother was living with her sister. The court added that she is over 65 years old and, as a primary heir of her husband, she has a right to live in the house. The court explained that the main goal of the 2007 Act is to give older parents a simple, affordable, and quick way to get financial support. Section 2(b) of the Act says that "maintenance" includes things like food, clothing, a place to live, and medical care. Also, under Section 2(d), stepparents are considered "parents" for the purpose of this law. The court acknowledged that the special court can indeed order a monthly support payment, but it cannot be more than Rs. 10,000. It also noted that Section 5 of the 2007 Act talks about how to apply for support. However, the court pointed out that the legal definition of "maintenance" in this law includes providing a place to live. The court again noted that the relationship between the two individuals and their stepmother was tense, and it was unlikely they could all live together peacefully in the house. Therefore, the court supported the special court's order telling the two individuals to leave the house and give control of it to their stepmother. However, because the two individuals also had rights as heirs to their father's property, the court ordered the stepmother not to sell, rent out, or create any other claims on the house. This was to prevent anything that might harm the individuals' future ownership rights to the property.
2. The challenge in this writ petition is to the order dated 6 September 2019 passed by Sub-divisional Officer-cum-Presiding Officer of the Tribunal constituted under Section 7 of the Maintenance And Welfare of Parents And Senior Citizens Act, 2007 (Act of 2007). Vide order impugned herein, the Petitioners have been directed to vacate and handover possession of room no.3/6, Gurukrupa sg 3/8 12.wp4970-19.doc Mumbai 400 060 (disputed premises) to Respondent No.3 within a period of 15 days. 3. Facts giving rise to the present petition are as follows:- Respondent No.3 is step-mother of the Petitioners herein. On the demise of mother of the Petitioners, their father-Vaijanath married Respondent No.3. Vaijanath was serving with Morarji Mills. He passed away in 2014. The disputed premises belonged to deceased Vaijanath. Both the Petitioners were living separately from their father and Respondent No.3. Both the Petitioners would visit the disputed premises. Both of them had occasionally stayed in the disputed premises. Petitioner No.1 is gainfully employed. Petitioner No.2 is differently abled (psychologically). Both the Petitioners would harass and ill-treat Respondent No.3 on the demise of their father. It is the case of Respondent No.3 that she was 60 plus and, thus, a senior citizen. It is her right to stay peacefully and comfortably in the disputed premises. The Petitioners, by one or the other way, harassed and ill- treated her and thereby made her living miserable. She, therefore, filed application to the tribunal and urged for eviction of the Petitioners from the disputed premises. 4. The Petitioners have their side of story to tell. According sg 4/8 12.wp4970-19.doc to them, their mother passed away when Petitioner Nos.1 and 2 were 8 and 1½ years of age, respectively. Respondent No.3, being step- mother, ill-treated the Petitioners. The Petitioners, therefore, took shelter at the house of their maternal grand-mother. On the demise of their grand-mother, the Petitioners came back to the disputed premises and started living with their father and the step-mother/Respondent No.3. According to them, Respondent No.3 earns her living. She has been staying at her sister’s residence. The Petitioners have right, title and interest in the disputed premises, since they inherited the same as Class I heirs on the demise of their father. According to them, the tribunal has only jurisdiction to grant maintenance in terms of quantum of money. The tribunal has no jurisdiction to pass any other order, specifically one in question in this writ petition. 5. Both the learned Advocates made their submissions consistent with their respective case referred to hereinabove. Learned Advocate for the Petitioners further submitted that Respondent No.3 got her name recorded in the in the society record. She wanted to sell out the disputed premises. The Petitioners, being Class I heirs of deceased Vaijanath, have every right to stay in the disputed premises. The impugned order herein is, thus, liable to be set aside. 6. Considered the submissions advanced. Perused the order impugned herein. Also gone through the authorities relied on. sg 5/8 12.wp4970-19.doc 7. The Statement of Objects and Reasons of the Act of 2007 is – Traditional norms and values of the Indian society laid stress on providing care for the elderly. However, due to withering of the joint family system, a large number of elderly are not being looked after by their family. Consequently, many older persons, particularly widowed women are now forced to spend their twilight years all alone and are exposed to emotional neglect and to lack of physical and financial support. This clearly reveals that ageing has become a major social challenge and there is a need to give more attention to the care and protection for the older persons. Though the parents can claim maintenance under the Code of Criminal Procedure, 1973, the procedure is both time-consuming as well as expensive. Hence, there is a need to have simple, inexpensive and speedy provisions to claim maintenance for parents. Section 2(b) of the Act of 2007 defines the term “maintenance” to include provision for food, clothing, residence and medical attendance and treatment. Sub-clause (d) of Section 2 defines the term “parent” to mean father or mother whether biological, adoptive or step father or step mother, as the case may be, whether or not the father or the mother is a senior citizen. 8. It is true that the tribunal has jurisdiction to grant sg 6/8 12.wp4970-19.doc maintenance allowance not exceeding Rs.10,000/- per month. Section 5 of the Act of 2007 speaks of application for maintenance. If one goes by the definition of the term maintenance, it includes a provision for residence. 9. The disputed premises originally belonged to late Vaijanath. There is nothing to support the claim of the Petitioners that Vaijanath was unemployed and the disputed premises was purchased out of the funds provided by their natural mother. True, on the demise of Vaijanath, the Petitioners and Respondent No.3, being Class I heirs, inherited the disputed premises and thereby became entitled to occupy the said premises. During the submission advanced by the learned Advocates for the parties, it has come on record that the disputed premises are vacant. Both the Petitioners have been residing in a premises taken on rent. For non-payment of electricity charges, electric supply of the premises has been discontinued. Other dues of the society, such as maintenance and drainage charges, etc., are outstanding. Respondent No.3 is said to have been residing at her sister’s house. Necessarily the same is at the mercy of her sister. Respondent No.3 is above 65 years of age. Being one of the Class I heirs of deceased Vaijanath, she is entitled to reside in the disputed premises. Learned Advocate for the Petitioners submitted before this Court that Vaijanath did not leave behind any other property. It is the case of Respondent No.3 that deceased was allotted a room as he was sg 7/8 12.wp4970-19.doc in service with Morarji Mills. It is the specific case of Respondent No.3 that all the papers in relation to the said room are with Petitioner No.1-Mayur, who is little over 45 years of age. He is admittedly gainfully employed. Petitioner No.2 is psychologically disabled. Petitioner No.1 takes her care. He admits to have been residing in a room taken on rent. Respondent No.3, being in the evening of her life, does need comfort and peace. The relations between the Petitioners and her were strained. She being the stepmother of the Petitioners, there is no likelihood of all of them residing together peacefully in a disputed premises. In the facts and circumstances of the case, the tribunal was, therefore, justified to pass the order directing the Petitioners to vacate the dispute premises and handover its possession to Respondent No.3. The Court finds no reason to interfere with the impugned order. True, the Petitioners have a reasonable apprehension that Respondent No.3 may create third party interest in respect of the disputed premises or may bring her sister and her relations to stay with 10. This Court is, therefore, inclined to direct Respondent No.3 not to create any third party interest in respect of the disputed premises, which would be prejudicial to the right, title and interest of the Petitioners herein. 11. With the aforesaid direction, the writ petition is dismissed.
The Bombay High Court recently agreed with a decision to remove two individuals who were accused of treating their stepmother badly from their deceased father's house. The court noted that the older stepmother needed comfort and peace as she aged. Justice RG Avachat supported the original order from a special court, known as a tribunal, which was set up under a law called the Maintenance And Welfare of Parents And Senior Citizens Act of 2007. This order told the two individuals to leave the house. The court stated that the stepmother, being older, truly needs comfort and peace. It observed that the relationship between the two individuals and her was tense. Since she is their stepmother, it was unlikely they could all live together peacefully in the house. Because of this, the special court was right to order the two individuals to leave the house and give control of it to their stepmother. The father of the two individuals died in 2014. Their stepmother claimed that they treated her badly after their father passed away. However, the two individuals argued that their stepmother treated them poorly, which is why they went to live with their maternal grandmother. After their grandmother died, they moved back to the house. The individuals argued that they had a right to the house because they inherited it, and therefore, they could not be made to leave. The special court ordered them to move out of the house. This decision led to the current legal challenge, called a writ petition, filed by the two individuals. The individuals argued that the special court only had the power to order money for support, not to make any other decisions, like the order for them to leave the house. The High Court pointed out that the house was empty at the time, and the stepmother was living with her sister. The court added that she is over 65 years old and, as a primary heir of her husband, she has a right to live in the house. The court explained that the main goal of the 2007 Act is to give older parents a simple, affordable, and quick way to get financial support. Section 2(b) of the Act says that "maintenance" includes things like food, clothing, a place to live, and medical care. Also, under Section 2(d), stepparents are considered "parents" for the purpose of this law. The court acknowledged that the special court can indeed order a monthly support payment, but it cannot be more than Rs. 10,000. It also noted that Section 5 of the 2007 Act talks about how to apply for support. However, the court pointed out that the legal definition of "maintenance" in this law includes providing a place to live. The court again noted that the relationship between the two individuals and their stepmother was tense, and it was unlikely they could all live together peacefully in the house. Therefore, the court supported the special court's order telling the two individuals to leave the house and give control of it to their stepmother. However, because the two individuals also had rights as heirs to their father's property, the court ordered the stepmother not to sell, rent out, or create any other claims on the house. This was to prevent anything that might harm the individuals' future ownership rights to the property.
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2. A legal conundrum calls for resolution in this case. The seminal question that created it is: ‘whether the bundle of facts that constitute the cause of action for filing an Original Application under Section 19 of the Administrative Tribunals Act, 1985 (for short ‘the Act’) and determinative of the place of its filing would remain as the decisive factor in case such an application is subsequently transferred from the Bench where it was filed to another Bench of the Tribunal falling under the territorial jurisdiction of another High Court, to ascertain the jurisdictional High Court to exercise the power of judicial review qua the order of transfer passed by the Chairman of the Central Administrative Tribunal at New Delhi in exercise of power under Section 25 of the Act’. 3. The Appellant assails the final judgment and order dated 29.10.2021 passed by the High Court at Calcutta in WPCT No.78/2021 whereby the High Court set aside the order dated 22.10.2021 passed by the Central Administrative Tribunal, Principal Bench (New Delhi) in P.T.No.215/2021 transferring O.A.No.1619/2021, filed by the respondent herein, from Kolkata Bench to its files at the Principal Bench (New Delhi). In fact, order in P.T.No.215/2021 was passed by the Chairman of the Tribunal in exercise of the power under Section 25 of the Act. The respondent herein, who was the then Chief Secretary of the State of West Bengal (since superannuated as an IAS officer), filed O.A.No.1619/2021 before the Kolkata Bench of the Central Administrative Tribunal challenging the disciplinary proceedings initiated against him vide charge memo dated 16.06.2021 alleging failure to attend a review meeting chaired by the Hon’ble the Prime Minister of India on 28.05.2021 for assessing the loss of life, damage to property and infrastructure caused by the cyclonic storm ‘YAAS’. He was charged thereunder for failure to maintain absolute integrity and devotion to duty and for exhibiting conduct unbecoming of a public servant. Pending consideration of the stated O.A. the Appellant herein moved a Transfer Petition being P.T.No.215/2021 under Section 25 of the Act, before the Principal Bench of the Tribunal at New Delhi seeking its transfer from the Kolkata Bench to the Principal Bench. That petition was allowed by the Chairman of the Tribunal, sitting at the Principal Bench and the challenge of which ultimately led to the passing of the impugned final judgment and order dated 29.10.2021 by the High Court. Since we are confining the consideration only on the question as to which is the jurisdictional High Court having the power for judicial review as relates the order of transfer passed in P.T.No.215/2021 it is un-essential to refer to, in detail, the various contentions raised in the stated O.A. to challenge the disciplinary proceedings as also the contentions raised before the High Court in WPCT No.78/2021 to challenge the correctness of the stated order of transfer. In troth, consideration of correctness or otherwise of the decision of the High Court on merits would become inept if the High Court at Calcutta is found lacking jurisdiction to entertain the challenge against the order in P.T.No.215/2021 passed under Section 25 of the Act. 4. To properly consider this appeal, it is only appropriate to refer to Section 25 of the Act and Rule 6 of the Central Administrative Tribunal (Procedure) Rules, 1987 (for brevity, the ‘Procedure Rules’). They read thus: - “Section 25 of the Administrative 25. Power of Chairman to transfer cases from one Bench to another.- On the application of any of the parties and after notice to the parties, and after hearing such of them as he may desire to be heard, or on his own motion without such notice, the chairman may transfer any case pending before one Bench, for disposal, to any other Bench.” “Rule 6 of the Central Administrative 6. Place of filing applications.- (1) An application shall ordinarily be filed by an applicant with the Registrar of the Bench within whose jurisdiction – (i) the applicant is posted for the time (ii) the cause of action, wholly or Provided that with the leave of the Chairman the application may be filed with the Registrar of the Principal Bench and subject to the orders under section 25, such application shall be heard and disposed of by the Bench which has jurisdiction over the matter. (2) Notwithstanding anything contained in sub-rule (1) persons who has ceased to be in service by reason of retirement, dismissal or termination of service may be at his option file an application with the Registrar of the Bench within whose jurisdiction such person is ordinarily residing at the time of filing of the application.” 5. There is no dispute regarding the power of the Chairman to transfer an Original Application pending before one Bench of the Tribunal to another bench, under Section 25 of the Act. A perusal of the said provision would reveal that a party to any Application before any Bench of the Central Administrative Tribunal is statutorily entitled to make a separate application before the Chairman of the Central Administrative Tribunal for such a transfer. Upon transfer of an Original Application pending before a particular Bench of the Tribunal, lying within the territorial jurisdiction and power of judicial superintendence of any particular High Court other than High Court of Delhi at Delhi, to the Principal Bench at New Delhi lying within the territorial jurisdiction of High Court of Delhi, the question of maintainability may arise in case of a challenge against the order of transfer. Yet another High Court may emerge in the picture if the Chairman, sitting at the Principal Bench transferred the O.A. not to the file of the Principal Bench, but to another Bench lying within the territorial jurisdiction of yet another High Court. It is to be noted that the Chairman of the Tribunal can also pass an order of transfer of an Original Application while sitting at any other Bench than the Principal Bench. This possibility cannot be ruled out in view of the provisions under Section 5(4)(a) of the Act, which reads thus:- “S.5. Composition of Tribunals and (4) Notwithstanding anything contained in sub-Section (1), the Chairman – (a) may, in addition to discharging the functions of the Judicial Member or the Administrative Member of the Bench to which he is appointed, discharge the functions of the Judicial Member or, as the case may be the Administrative Member, of any other Bench;” 6. The question of jurisdictional issue may get complicated further in case some of the applicants who joined together to file a single Original Application under Section 19 of the Act before a particular Bench of the Tribunal have chosen to challenge the order of its transfer, if passed under section 25 of the Act, before different High Courts, based on their places of residence. Occurrence of such a situation is possible and cannot be ruled out going by the provisions under Rule 4(5)(a) and (b) of the Procedure Rules, which read thus: “Rule 4. Procedure for filing 4(5) (a) Notwithstanding anything contained in sub-rules (1) to (3) the Tribunal may permit more than one person to join together and file a single application if it is satisfied, having regard to the cause and the nature of relief prayed for that they have a common interest in the matter. 4(5) (b) Such permission may also be granted to an Association representing the persons desirous of joining in a single application provided, however, that the application shall disclose the class/grade/categories or persons on whose behalf it has been filed [provided that at least one affected person joins such an application].” All the above aspects have to be borne in mind while considering the question that calls for resolution in this appeal. Yet another important aspect may also has to be borne in mind, idest that the cause of action for filing an Original Application under section 19 of the Act to redress any grievance and the cause of action for challenging an order of transfer of such an application from the Bench where it was filed and pending, to another Bench are different and distinct. The place for filing an Original Application against any order under section 19 would depend upon the bundle of facts constituting the cause of action which ultimately culminated in the said order sought to be impugned. Explanation to section 19(1) defines the meaning of the word ‘order’ for the purposes of the said section. On the other hand, the cause of action for challenging the order of transfer/order declining the prayer for transfer is nothing but an order passed in the independent application for transfer of pending Original Application from the files of that particular Bench of the Tribunal where it was filed to another Bench in the invocation of or disinclination to invoke, the power under Section 25 of the Act. 7. We have heard Shri Tushar Mehta, learned Solicitor General, for the appellant and learned appearing for the respondent. Both sides relied on various authorities to drive home their respective stand as relates the impugned judgment. The learned Solicitor General contended that a challenge against the order passed in P.T.No.215/2021 by the Central Administrative Tribunal, Principal Bench at New Delhi, was maintainable only before the High Court of Delhi as the Principal Bench of the Tribunal lies within its territorial jurisdiction. To buttress the said contention the judgment of a Constitutional Bench of this Court in L. Chandra Kumar vs. Union of India, reported in (1997) 3 SCC 261 is relied on. It was held therein that the power vested in the High Court to exercise judicial superintendence over the decisions of all courts and Tribunals within the respective jurisdictions is also part of the basic structure of the constitution. Furthermore, it was held that the decisions of Tribunals would be subject to the High Court’s Writ jurisdiction under Article 226/227 of the Constitution, before a Division Bench of the High Court within whose territorial jurisdiction the particular Tribunal falls. The learned Solicitor General also referred to Section 5(7) of the Act which provides that subject to the other provisions of the Act, Benches of the Central Administrative Tribunal shall ordinarily sit at New Delhi (which shall be known as the Principal Bench), Allahabad, Kolkata, Madras, New Bombay and at such other places as the Central Government may, by notification, specify, to support the contention that High Court at Calcutta did not have jurisdiction to exercise judicial review of the orders in P.T.No.215/2021. Relying on the decision in Union of India vs. A. Shainamol, IAS and Anr., reported in (2021) SCC Online SC 962, it is contended that the mere residence of the Applicant in a certain place would not amount to cause of action conferring jurisdiction upon the Bench of the Tribunal located at that place. Indubitably, this contention is relevant only for challenging the maintainability of an Original Application before any particular Bench of the Tribunal. The learned Solicitor General relied on the decision of this Court in JK Industries Ltd. & Anr. vs. Union of India & Ors., reported in (2007) 13 SCC 673 to contend that Rule 6 of the Procedural Rules ought not to have been interpreted by the High Court so as to take away Chairman’s jurisdiction to transfer a case under Section 25 of the Act as the cardinal principle of interpretation is that a rule made under a statute could not override or supersede a provision of the parent statute itself. According to us the said decision and the contention founded on the said decision are relevant only for the purpose of deciding the correctness of the order of transfer passed by the Principal Bench of the Tribunal in exercise of the power under Section 25 of the Act and not for deciding the jurisdictional High Court qua the order in 8. The Appellant also got a grievance that the High Court made some harsh or disparaging remarks in the impugned judgment against the Chairman of the Tribunal. The learned Solicitor General submitted that they were unsolicited and relied on various decisions to stress upon the requirement of their expunction. Nevertheless, we think it unnecessary to delve into all such contentions based on such decisions as Dr. Abhishek Manu Singhvi, learned Senior Counsel appearing for the respondent, fairly submitted that he would not contest on that issue and left it to us to decide. Obviously, the High Court found undue haste in the matter of disposal of P.T.No.215/2021 and that also persuaded the High Court to make such scathing observations and remarks in fact, against the Principal Bench of the Tribunal. But then, a perusal of the materials on record would reveal that WPCT No.78/2021 filed before the High Court that culminated in the impugned judgment was also passed with almost equal speed. That apart, both the order in P.T.No.215/2021 and the final judgment and order in WPCT No.78/2021 were passed, respectively, by the Tribunal and the High Court, after hearing both parties. The fact that the impugned judgment contain observations and remarks amounting to disparagement and as such, scathing in effect is not in dispute. We do not think it necessary to reproduce them in this judgment in the stated circumstances. However, contextually it will be apposite to refer to paragraphs 11 to 13 of the decision of this Court in Braj Kishore Thakur v. Union of India (AIR 1997 SC 1157). It was held therein thus: “11. No greater damage can be caused to the administration of justice and to the confidence of people in judicial institutions when Judges of higher Courts publicly express lack of faith in the subordinate Judges. It has been said, time and again, that respect for judiciary is not in hands by using intemperate language and by casting aspersions against lower judiciary. It is well to remember that a Judicial Officer against whom aspersions are made in the judgment could not appear before the higher Court to defend his order. Judges of higher Courts must, therefore, exercise greater judicial restraint and adopt greater care when they are tempted to employ strong terms against lower judiciary. 12. A quarter of a century ago Gajendragadkar, J. (as he then was) speaking for a Bench of three Judges of this Court, in the context of dealing with the strictures passed by High Court against one of its Subordinate Judicial Officers (Suggesting that extraneous considerations) stressed the need to adopt utmost judicial restraint against using strong language and imputation of corrupt motives against lower judiciary more so “because the Judge against whom the imputations are made has no remedy in law to vindicate his position” [Ishwari Prasad Mishra v. had to repeat such words on subsequent occasions also. In K.P. Tiwari v. State of M.P., AIR 1994 SC 1031, this Court came across certain observations of a learned Judge of the High Court casting strictures against a Judge of the subordinate judiciary and the Court used the opportunity to remind all concerned that using intemperate language and castigating strictures at the lower levels would only cause public respect in judiciary to dwindle. The following observations of this Court need repetition in this context: “The higher Courts every day come across orders of the lower Courts which are not justified either in law or in fact and modify them or set them aside. That is one of the functions of the superior Courts. Our legal system acknowledges the fallibility of the Judges and hence provides for appeals and revisions. A Judge tries to discharge his duties to the best of his capacity. While doing so, sometimes, he is likely to err……………………………………… it has also to be remembered that the lower judicial officers mostly work under a charged atmosphere and are constantly under a psychological pressure with all the contestants and their lawyers almost breathing down their necks more correctly up to their nostrils. They do not have the benefit of a detached atmosphere of the higher Courts to think coolly and decide patiently. Every error, however, gross it may look, should not, therefore, be attributed to improper motive.” 13. Recently, we had to say the same thing though in different words in Kashi Nath Roy v. State of situation. We then said thus (Para “It cannot be forgotten that in our system, like elsewhere, appellate and revisional Courts have been set up on the pre-supposition that lower Courts would in some measure of cases go wrong in decision- making, both on facts as also on law, and they have been knit-up to correct those orders. The human element, in justicing being an important element, computer-like functioning cannot be expected of the Courts: however, hard they may try and keep themselves precedent- trodden in the scope of discretions and in the manner of judging. Whenever any such intolerable error is detected by or pointed out to a superior Court, it is functionally required to correct that error and appropriate case, and in a manner befitting, maintaining the dignity of the Court and independence of judiciary, convey its message in its judgment to the officer concerned through a process of reasoning, essentially persuasive, reasonable, mellow but clear, and result-orienting, but rarely as a rebuke. Sharp reaction of the kind exhibited in the afore-extraction institutional functioning. The premise that a Judge committed a mistake or an error beyond the limits of tolerance, is no ground to inflict condemnation on the Judge-Subordinate, unless there existed something else and for exceptional grounds.” On our careful scanning of the circumstances and situations obtained in this case we are persuaded to think that no exceptional ground(s) exists in the case on hand to make scathing and disparaging remarks and observations against the Principal Bench of the Tribunal. At the same time, it is to be noted that the said order was, in fact, passed by the Chairman of the Tribunal on a formal application moved by the appellants herein and after hearing both parties. As a matter of law the Chairman could pass an order of transfer under Section 25 of the Act suo motu. Hence, the said observations and remarks, in troth, ought not to have been made against the Chairman of the Tribunal. To observe sobriety, we say that the remarks made by the High Court were unwarranted, uncalled for and avoidable being sharp reaction on unfounded assumptions. Ergo, we have no hesitation to hold that they were wholly unnecessary for the purpose of deciding the correctness or otherwise of the order of transfer. Hence, they are liable to be expunged. We do so. 9. Now, we will advert to the contentions advanced by Dr. Abhishek Manu Singhvi, learned Senior Counsel for the respondent to support and sustain the impugned judgment and final order in WPCT No.78/2021 whereby the order in P.T.No.215/2021 was set aside. It is submitted that the High Court is justified in entertaining WPCT No.78/2021 as the order of transfer passed in P.T.No.215/2021 fell within its power of judicial superintendence. The further contention is that it could not be said that the power under Section 25 of the Act was taken away solely because Rule 6 of the Procedure Rules was relied on to upturn the order in P.T.No.215/2021. The learned counsel, after drawing our attention to the factual background of the case, contended that the High Court had rightly exercised the power of judicial review and looked into the correctness of the order of transfer passed by the Chairman of the Tribunal (the Principal Bench of the Tribunal) in the invocation of the power under Section 25 of the Act. The said contention is primarily founded on Article 226(2) of the Constitution of India that confers powers on High Court in relation to territories within which the case of action, wholly or in part arises and also on the position settled by this Court in the decisions in Kusum Ingots and Alloys Limited vs. Union of India & Anr. (2004) 6 SCC 254, in Nawal Kishore Sharma vs. Union of India & Ors. (2014) 9 SCC 329 and in Navinchandra N. Majithia vs. State Compendium of judgments/orders under Section 25 of the Act has also been produced along with the written submissions on behalf of the respondent to support the contentions that the transfer order was illegal, arbitrary, passed in violation of the principals of natural justice and on irrelevant considerations. We may hasten to note that all those judgments/orders, except one, viz., the decision reported in 2019 SCC Online Del 11541 (Bhavesh Motiani vs. Union of India), were passed by the Principal Bench of the Tribunal rejecting applications for transfer of pending Original Applications in the exercise of power under Section 25 of the Act. Hence, they are not significant in deciding the stated moot question. We will refer to in Bhavesh Motiani’s case a little later. 10. We have carefully considered the contentions raised on behalf of the respondent by placing reliance on the aforesaid decisions of this Court. In Kusum Ingots’ case (supra), the question involved was “whether the seat of Parliament would be a relevant factor for determining the territorial jurisdiction of a High Court to entertain a writ petition under Article 226 of the Constitution of India when the constitutionality of a Parliamentary Act is under challenge”. After referring to the expression “cause of action” for territorial jurisdiction to entertain a writ petition, in terms of Article 226(2) of the Constitution, this Court held thus: “18. The facts pleaded in the writ petition must have a nexus on the basis whereof a prayer can be granted. Those facts which have nothing to do with the prayer made therein cannot be said to give rise to a cause of action which would confer jurisdiction on the Court. 19. Passing of a legislation by itself in our opinion does not confer any such right to file a writ petition unless a cause of action arises therefor. 20. A distinction between a legislation and executive action should be borne in mind while determining the said question. 21. A parliamentary legislation when it receives the assent of the President of India and is published in the Official Gazette, unless specifically excluded, will apply to the entire territory of India. If passing of a legislation gives rise to a cause of action, a writ petition questioning the constitutionality thereof can be filed in any High Court of the country. It is not so done because a cause of action will arise only when the provisions of the Act or some of them which were implemented shall give rise to civil or evil consequences to the petitioner. A writ court, it is well settled, would not determine a constitutional question in a vacuum.” 11. In Nawal Kishore’s case, the issue concerned was with respect to the jurisdiction of a particular High Court against an authority/person residing outside its territorial jurisdiction. That question was considered with reference to Article 226(2) of the Constitution. It was held that writ could be issued if cause of action wholly or partially had arisen within the territorial jurisdiction of High Court concerned even if the person or authority against whom writ is sought for is located outside its territorial jurisdiction. However, it was held that in order to maintain such a writ petition, the petitioner had to establish that such respondents infringed his legal rights within the limits of the High Court’s jurisdiction. In Navin Chandra N. Majithia’s case, again the jurisdictional issue was considered with reference to Article 226(2) of the Constitution and held that the High Court concerned would have jurisdiction to entertain a writ petition if any part of the cause of action arose within its territorial limits even though the seat of government or authority or residence of persons against whom direction, order or writ is sought to be issued is not within its territory. 12. On a careful scanning of the aforesaid decisions relied on by the respondent and consideration of the nature of the question that calls for decision in the case on hand and also what we have observed earlier, we find that the above decisions have no applicability for deciding the stated moot question. We will further elaborate the non-applicability of those decisions in the course of further consideration of the matter. We are not dealing with the cause of action for filing O.A.No.1619/2021 before the Kolkata Bench of the Tribunal in this Judgement. Even if the bundle of facts constituting cause of action for filing the said O.A. confers on the Kolkata Bench of the Tribunal the jurisdiction to entertain the same, the question here is whether its transfer from the said Bench to the Principal Bench vide order dated 20.10.2021 in P.T.No.215/2021 by the Chairman of the Central Administrative Tribunal (the Principal Bench) in invocation of powers under Section 25 of the Act falls within the territorial jurisdiction and power of superintendence of the High Court at Calcutta and the fate of the challenge against the order in WPCT No.78/2021 dated 29.10.2021 would depend upon its answer. We may hasten to state that if the challenge in the writ petition was against an order passed by the Kolkata Bench of the Tribunal in O.A.No.1619/2021 there can be no doubt with respect to the jurisdiction of the High Court at 13. Going by Section 25 of the Act, extracted hereinbefore, an independent application for transfer of an Original Application filed and pending before any bench of the Tribunal could be filed and the power to transfer lies with the Chairman. The Section mandates that if such an application is made, notice of it has to be given to the opposite party. At the same time, the Section also provides that on his motion and without any such notice the Chairman could transfer any case pending before one Bench, for disposal, to any other Bench of the Tribunal. Evidently, the said Section recognizes, the fundamental principles of justice and fair play namely that ‘Justice must not only be done but it must be seen to have been done’. It would enable the Chairman to avert a ‘reasonable suspicion’ of or ‘real likelihood’ of bias. It could also be exercised on establishing any other sufficient and sustainable grounds. This power is to be used with great circumspection and sparingly. We do not think it necessary to elaborate on this issue as we have already stated that we are confining our consideration only to the specific question whether High Court at Calcutta was having jurisdiction to entertain the challenge against the order in P.T.No.215/2021. 14. Before delving into the moot question any further we deem it appropriate to refer to the impugned judgment to know in what manner the order of transfer passed in P.T.No.215/2021 was understood by the High Court. In other words, whether the High Court while passing the impugned judgment treated the order impugned before it as an order passed in the O.A.No.1619/2021 pending before the Kolkata Bench of the Tribunal that lies within its territorial jurisdiction by that Bench of the Tribunal or as an order passed at the Principal Bench of the Tribunal lying outside its jurisdiction transferring that very Original Application to another Bench of the Tribunal. A scanning of the impugned order itself would reveal that the High Court perfectly understood and treated the order impugned before it in WPCT No.78/2021, being the order in P.T.No.215/2021, as an order passed by the Principal Bench of the Tribunal at New Delhi, transferring O.A.No.1619/2021. This, in our opinion, is the correct understanding of the said order, as it was passed in P.T.No.215/2021, filed by the Appellant herein who was also a party to O.A.No.1619/2021, calling for an order in exercise of the power under Section 25 of the Act, before the Principal Bench. This aspect is very clear from paragraphs 22, 23, 24, and 25 of the impugned judgement of the High Court. They “22. The questions which acquire relevance to decide the present writ petition are as 23. Is the present writ petition maintainable before this court, in view of the impugned order being passed by the Principal Bench situated at New Delhi? 24. Did the Principal Bench act beyond its jurisdiction in passing the impugned 25. Was the Principal Bench, CAT justified in law in passing the impugned order on merits?” 15. When once the High Court found the order impugned as one passed by the Principal Bench we have no hesitation to hold that the High Court should have confined its consideration firstly, to decide its own territorial jurisdiction for exercising the power of judicial review over the order dated 22.10.2021 passed by the Principal Bench in P.T.No.215/2021 in the correct perspective, without reference to the bundle of facts constituting the cause of action for filing O.A.No.1619/2021 before the Kolkata Bench of the Tribunal founded on the cause of action referred to in Rule 6(2) of the Procedure Rules that decides the place of filing of an O.A.. To wit, those bundle of facts which would be necessary for the applicant to prove, if traversed, in order to support the right to a judgment from that Bench of the Tribunal. In such circumstances, the question of infringement or otherwise of the right of the respondent herein to litigate before the Kolkata Bench of the Tribunal could not have been gone into, on merits, without deciding the seminal question whether the High Court of Calcutta itself had jurisdiction to undertake judicial review of the order passed by the Chairman in exercise of power under Section 25 at the Principal seat of the Tribunal at New Delhi we do not have any hesitation in holding that the High Court at Calcutta could not have entertained the Writ 16. As noted earlier the order of transfer of O.A.No.1619/2021 passed in P.T.No.215/2021 was understood and dealt with by the High Court as an order passed by the Principal Bench of the Tribunal. Section 5(7) of the Act makes it clear that the Bench of the Central Administrative Tribunal at New Delhi is known as the Principal Bench. It is in this context and the relevant factors as also the situations likely to cause conflicting decisions by different High Courts referred to hereinbefore in the preceding paragraphs of this judgment that the decision of this Court in L. Chandra Kumar’s case assumes relevance. Earlier, we made a brief reference about the law laid down in the said decision. One of the broad issues that was considered by the Constitution Bench was as follows: “Whether the power conferred upon Parliament or the State Legislatures, as the case may be, by sub-clause(d) of clause(2) of Article 323 A or sub- clause(d)of clause(3) of Article 323 B of the Constitution, to totally exclude the jurisdiction of ‘all courts’, except that of the Supreme Court under Article 136, in respect of disputes and complaints referred to in clause(1) of Article 323A or with regard to all or any of the matters specified in clause (2) of Article 323B, runs counter to the power of judicial review conferred on the High Courts under Article 226/227 and on the Supreme Court under Article 32 of the Constitution? During such consideration the constitutional validity of Section 28 of the Act, the “exclusion of jurisdiction” clause was also considered by this court. It reads thus:- S.28. Exclusion of jurisdiction of courts except the Supreme Court under article 136 of the Constitution.- On and from the date from which any jurisdiction, powers and authority becomes exercisable under this Act by a Tribunal in relation to recruitment and matters concerning recruitment to any Service or post or service matters concerning members of any Service or persons appointed to any Service or (b) any Industrial Tribunal, Labour Court or other authority constituted under the Industrial Disputes Act, 1947 (14 of 1947) or any other corresponding law for the time being shall have], or be entitled or exercise any jurisdiction, powers or authority in relation to such recruitment or matters concerning such recruitment or such service matters. In view of the reasoning adopted the constitution Bench held Section 28 of the Act and the “exclusion jurisdiction” clauses in all other legislations enacted under the aegis of Article 323A and 323B, to the extent they exclude the jurisdiction of the High Courts under Articles 226/227 and the Supreme Court under Article 32, of the constitution, was held unconstitutional besides holding clause 2(d) of Article 323A and clause 3(d) of Article 323B, to the same extent, as unconstitutional. Further, it was held thus:- “The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other Courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323A and Article 323B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls.” When once a Constitution Bench of this court declared the law that “all decisions of Tribunals created under Article 323A and Article 323B of the Constitution will be subject to the scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls”, it is impermissible to make any further construction on the said issue. The expression “all decisions of these Tribunals” used by the Constitution Bench will cover and take within its sweep orders passed on applications or otherwise in the matter of transfer of Original Applications from one Bench of the Tribunal to another Bench of the Tribunal in exercise of the power under Section 25 of the Act. In other words, any decision of such a Tribunal, including the one passed under Section 25 of the Act could be subjected to scrutiny only before a Division Bench of a High Court within whose jurisdiction the Tribunal concerned falls. This unambiguous exposition of law has to be followed scrupulously while deciding the jurisdictional High Court for the purpose of bringing in challenge against an order of transfer of an Original Application from one bench of Tribunal to another bench in the invocation of Section 25 of the Act. The law thus declared by the Constitution Bench cannot be revisited by a Bench of lesser quorum or for that matter by the High Courts by looking into the bundle of facts to ascertain whether they would confer territorial jurisdiction to the High Court within the ambit of Article 226(2) of the Constitution. We are of the considered view that taking another view would undoubtedly result in indefiniteness and multiplicity in the matter of jurisdiction in situations when a decision passed under Section 25 of the Act is to be called in question especially in cases involving multiple parties residing within the jurisdiction of different High Courts albeit aggrieved by one common order passed by the Chairman at the Principal Bench at New Delhi. 17. The undisputed and indisputable position in this case is that the WPCT No.78/2021 was filed to challenge the order dated 22.10.2021 in P.T.No.215/2021 of the Central Administrative Tribunal, Principal Bench at New Delhi, (by the Chairman of the Tribunal in exercise of the power under Section 25 of the Act sitting at the Principal Bench) transferring O.A.No.1619/2021 to its files. On applying the said factual position to the legal exposition in L. Chandra Kumar’s case (supra) it is crystal clear that the Principal Bench of the Central Administrative Tribunal at New Delhi, which passed the order transferring O.A.No.1619/2021 vide order in P.T.No.215/2021 falls within the territorial jurisdiction of High Court of Delhi at New Delhi. Needless to say that the power of judicial review of an order transferring an Original Application pending before a Bench of the Tribunal to another Bench under Section 25 of the Act can be judicially reviewed only by a Division Bench of the High Court within whose territorial jurisdiction the Bench passing the same, falls. In fact, the decision in Bhavesh Motiani’s case (supra), relied on by the respondent is also in line with the said position as in that case also, as against the order of transfer passed under Section 25 of the Act by the Principal Bench of the Central Administrative Tribunal at New Delhi Writ Petition was filed by the aggrieved party only before the High Court of Delhi. This is evident from the very opening sentence of the said judgment, which reads thus: “The present petition has been filed being aggrieved by order dated 30.11.2018 passed by the Central Administrative Tribunal, by the O.A.No.421/2018 pending before the Ahmedabad Bench has been transferred to the Principal Bench of the Tribunal.” In the instant case, the High Court at Calcutta has usurped jurisdiction to entertain the Writ Petition, viz., WPCT No.78/2021, challenging the order passed by the Central Administrative Tribunal, New Delhi, in P.T.No.215/2021, even after taking note of the fact that the Principal Bench of the Tribunal does not lie within its territorial jurisdiction. 18. In the circumstances, based on our conclusion the impugned judgment and final order in WPCT No.78/2021 passed by the High Court at Calcutta is to be held as one passed without jurisdiction and hence, it is ab initio void. Accordingly, it is set aside. The writ petition being WPCT No.78/2021 filed before the High Court at Calcutta is accordingly dismissed, however, with liberty to the petitioner therein/the respondent herein to assail the same before the jurisdictional High Court, if so advised. In that regard, we clarify the position that we have not made any finding or observation regarding the correctness or otherwise of the order dated 22.10.2021 passed by the Principal Bench of the Tribunal (in fact, by the Chairman of the Tribunal) in P.T.No.215/2021. Needless to say that in the event of filing of such a Writ Petition, it shall be considered on its own merits, in accordance with law. 19. The appeal is allowed in the above terms. Pending applications, if any, stand disposed of.
The Supreme Court has decided that if a special court (called a tribunal) makes a ruling, only the High Court in that same geographic area can review it. This rule applies even to decisions made under Section 25 of the Administrative Tribunals Act of 1985. The Court pointed to a long-standing principle from an earlier Supreme Court case, L Chandrakumar, which stated that all decisions from these special courts must be reviewed by the High Court that oversees that particular court's area. Two judges, Justice A.M. Khanwilkar and Justice C.T. Ravikumar, were looking at a case where the national government had challenged a decision from the Calcutta High Court. The Calcutta High Court had overturned a ruling made by the main branch of a special court (the Central Administrative Tribunal) located in New Delhi. The Supreme Court repeated its earlier stance on this issue. The case was about a high-ranking official, Alapan Bandyopadhyay, who was disciplined for not attending a meeting with the Prime Minister. This meeting was held to check the damage from Cyclone YAAS. Mr. Bandyopadhyay challenged his punishment at the Central Administrative Tribunal in Calcutta. However, the central government asked, and the main tribunal in New Delhi then moved his case from Calcutta to New Delhi. The tribunal's Chairman did this using a specific power given to him by Section 25 of the Administrative Tribunals Act of 1985. Mr. Bandyopadhyay then went to the Calcutta High Court to challenge the order that had moved his case. The Calcutta High Court agreed with him and canceled the main tribunal's transfer order. Because of this, the central government took the case to the Supreme Court. It was clear from Section 25 of the Administrative Tribunals Act of 1985 that the Chairman of the tribunal *did* have the power to move cases from one branch to another. So, the Supreme Court then focused on the main question: whether the Calcutta High Court had the right to review the order passed by the Chairman of the main tribunal, which was located in New Delhi. The Supreme Court judges referred back to the L. Chandra Kumar case. That earlier ruling clearly stated that High Courts have a fundamental power to oversee and review decisions made by all courts and special tribunals within their specific geographic areas. This power is a basic part of the country's Constitution. So, tribunal decisions must be reviewed by the High Court that is in the same area as that tribunal. The Calcutta High Court had agreed with Mr. Bandyopadhyay's challenge. It believed it had the right to hear the case because some of the events that led to the lawsuit had happened within its area, as allowed by Article 226(2) of the Constitution. The Supreme Court disagreed with the Calcutta High Court's way of thinking. It pointed out that the High Court's decision went against the clear rule set down by the L Chandrakumar case. Justice Ravikumar wrote the Supreme Court's decision, which stated: "Once a special Supreme Court bench has clearly stated a law – that 'all decisions from special courts will be reviewed by the High Court that is in the same area as that special court' – no other court, including High Courts, can try to interpret that rule differently. High Courts cannot look at specific facts of a case to claim they have the right to hear it if the special court itself is not within their area. We believe that allowing other interpretations would create confusion and many lawsuits. This would be especially true when someone wants to challenge an order from Section 25 of the Act, particularly if many people in different High Court areas are affected by one order from the main tribunal in New Delhi." The judges strongly restated that rulings made by special courts, including transfer orders under Section 25 of the Administrative Tribunals Act, can only be reviewed by the High Court that is in the same geographic area as that special court. They also noted that this clear legal rule must be strictly followed when deciding which High Court can hear a challenge against an order that moves a case from one tribunal branch to another. The Supreme Court also made it clear that the Calcutta High Court "fully understood and recognized that the order it was being asked to review came from the main tribunal in New Delhi." Because of this, the High Court should have only focused on whether *it* had the proper geographic authority to review an order made in New Delhi, rather than looking at where the original issue arose. So, the Supreme Court stated that the Calcutta High Court had wrongly taken power it did not have when it canceled the order from the Central Administrative Tribunal in New Delhi. The Supreme Court therefore declared the Calcutta High Court's order invalid from the very beginning and officially canceled it. However, the judges allowed Mr. Bandyopadhyay to challenge the tribunal's original order in the High Court that *did* have the correct geographic authority over the New Delhi tribunal. In conclusion, the central government's appeal was approved. The Court, however, gave Mr. Bandyopadhyay the freedom to go to the correct High Court to challenge the tribunal's order.
2. A legal conundrum calls for resolution in this case. The seminal question that created it is: ‘whether the bundle of facts that constitute the cause of action for filing an Original Application under Section 19 of the Administrative Tribunals Act, 1985 (for short ‘the Act’) and determinative of the place of its filing would remain as the decisive factor in case such an application is subsequently transferred from the Bench where it was filed to another Bench of the Tribunal falling under the territorial jurisdiction of another High Court, to ascertain the jurisdictional High Court to exercise the power of judicial review qua the order of transfer passed by the Chairman of the Central Administrative Tribunal at New Delhi in exercise of power under Section 25 of the Act’. 3. The Appellant assails the final judgment and order dated 29.10.2021 passed by the High Court at Calcutta in WPCT No.78/2021 whereby the High Court set aside the order dated 22.10.2021 passed by the Central Administrative Tribunal, Principal Bench (New Delhi) in P.T.No.215/2021 transferring O.A.No.1619/2021, filed by the respondent herein, from Kolkata Bench to its files at the Principal Bench (New Delhi). In fact, order in P.T.No.215/2021 was passed by the Chairman of the Tribunal in exercise of the power under Section 25 of the Act. The respondent herein, who was the then Chief Secretary of the State of West Bengal (since superannuated as an IAS officer), filed O.A.No.1619/2021 before the Kolkata Bench of the Central Administrative Tribunal challenging the disciplinary proceedings initiated against him vide charge memo dated 16.06.2021 alleging failure to attend a review meeting chaired by the Hon’ble the Prime Minister of India on 28.05.2021 for assessing the loss of life, damage to property and infrastructure caused by the cyclonic storm ‘YAAS’. He was charged thereunder for failure to maintain absolute integrity and devotion to duty and for exhibiting conduct unbecoming of a public servant. Pending consideration of the stated O.A. the Appellant herein moved a Transfer Petition being P.T.No.215/2021 under Section 25 of the Act, before the Principal Bench of the Tribunal at New Delhi seeking its transfer from the Kolkata Bench to the Principal Bench. That petition was allowed by the Chairman of the Tribunal, sitting at the Principal Bench and the challenge of which ultimately led to the passing of the impugned final judgment and order dated 29.10.2021 by the High Court. Since we are confining the consideration only on the question as to which is the jurisdictional High Court having the power for judicial review as relates the order of transfer passed in P.T.No.215/2021 it is un-essential to refer to, in detail, the various contentions raised in the stated O.A. to challenge the disciplinary proceedings as also the contentions raised before the High Court in WPCT No.78/2021 to challenge the correctness of the stated order of transfer. In troth, consideration of correctness or otherwise of the decision of the High Court on merits would become inept if the High Court at Calcutta is found lacking jurisdiction to entertain the challenge against the order in P.T.No.215/2021 passed under Section 25 of the Act. 4. To properly consider this appeal, it is only appropriate to refer to Section 25 of the Act and Rule 6 of the Central Administrative Tribunal (Procedure) Rules, 1987 (for brevity, the ‘Procedure Rules’). They read thus: - “Section 25 of the Administrative 25. Power of Chairman to transfer cases from one Bench to another.- On the application of any of the parties and after notice to the parties, and after hearing such of them as he may desire to be heard, or on his own motion without such notice, the chairman may transfer any case pending before one Bench, for disposal, to any other Bench.” “Rule 6 of the Central Administrative 6. Place of filing applications.- (1) An application shall ordinarily be filed by an applicant with the Registrar of the Bench within whose jurisdiction – (i) the applicant is posted for the time (ii) the cause of action, wholly or Provided that with the leave of the Chairman the application may be filed with the Registrar of the Principal Bench and subject to the orders under section 25, such application shall be heard and disposed of by the Bench which has jurisdiction over the matter. (2) Notwithstanding anything contained in sub-rule (1) persons who has ceased to be in service by reason of retirement, dismissal or termination of service may be at his option file an application with the Registrar of the Bench within whose jurisdiction such person is ordinarily residing at the time of filing of the application.” 5. There is no dispute regarding the power of the Chairman to transfer an Original Application pending before one Bench of the Tribunal to another bench, under Section 25 of the Act. A perusal of the said provision would reveal that a party to any Application before any Bench of the Central Administrative Tribunal is statutorily entitled to make a separate application before the Chairman of the Central Administrative Tribunal for such a transfer. Upon transfer of an Original Application pending before a particular Bench of the Tribunal, lying within the territorial jurisdiction and power of judicial superintendence of any particular High Court other than High Court of Delhi at Delhi, to the Principal Bench at New Delhi lying within the territorial jurisdiction of High Court of Delhi, the question of maintainability may arise in case of a challenge against the order of transfer. Yet another High Court may emerge in the picture if the Chairman, sitting at the Principal Bench transferred the O.A. not to the file of the Principal Bench, but to another Bench lying within the territorial jurisdiction of yet another High Court. It is to be noted that the Chairman of the Tribunal can also pass an order of transfer of an Original Application while sitting at any other Bench than the Principal Bench. This possibility cannot be ruled out in view of the provisions under Section 5(4)(a) of the Act, which reads thus:- “S.5. Composition of Tribunals and (4) Notwithstanding anything contained in sub-Section (1), the Chairman – (a) may, in addition to discharging the functions of the Judicial Member or the Administrative Member of the Bench to which he is appointed, discharge the functions of the Judicial Member or, as the case may be the Administrative Member, of any other Bench;” 6. The question of jurisdictional issue may get complicated further in case some of the applicants who joined together to file a single Original Application under Section 19 of the Act before a particular Bench of the Tribunal have chosen to challenge the order of its transfer, if passed under section 25 of the Act, before different High Courts, based on their places of residence. Occurrence of such a situation is possible and cannot be ruled out going by the provisions under Rule 4(5)(a) and (b) of the Procedure Rules, which read thus: “Rule 4. Procedure for filing 4(5) (a) Notwithstanding anything contained in sub-rules (1) to (3) the Tribunal may permit more than one person to join together and file a single application if it is satisfied, having regard to the cause and the nature of relief prayed for that they have a common interest in the matter. 4(5) (b) Such permission may also be granted to an Association representing the persons desirous of joining in a single application provided, however, that the application shall disclose the class/grade/categories or persons on whose behalf it has been filed [provided that at least one affected person joins such an application].” All the above aspects have to be borne in mind while considering the question that calls for resolution in this appeal. Yet another important aspect may also has to be borne in mind, idest that the cause of action for filing an Original Application under section 19 of the Act to redress any grievance and the cause of action for challenging an order of transfer of such an application from the Bench where it was filed and pending, to another Bench are different and distinct. The place for filing an Original Application against any order under section 19 would depend upon the bundle of facts constituting the cause of action which ultimately culminated in the said order sought to be impugned. Explanation to section 19(1) defines the meaning of the word ‘order’ for the purposes of the said section. On the other hand, the cause of action for challenging the order of transfer/order declining the prayer for transfer is nothing but an order passed in the independent application for transfer of pending Original Application from the files of that particular Bench of the Tribunal where it was filed to another Bench in the invocation of or disinclination to invoke, the power under Section 25 of the Act. 7. We have heard Shri Tushar Mehta, learned Solicitor General, for the appellant and learned appearing for the respondent. Both sides relied on various authorities to drive home their respective stand as relates the impugned judgment. The learned Solicitor General contended that a challenge against the order passed in P.T.No.215/2021 by the Central Administrative Tribunal, Principal Bench at New Delhi, was maintainable only before the High Court of Delhi as the Principal Bench of the Tribunal lies within its territorial jurisdiction. To buttress the said contention the judgment of a Constitutional Bench of this Court in L. Chandra Kumar vs. Union of India, reported in (1997) 3 SCC 261 is relied on. It was held therein that the power vested in the High Court to exercise judicial superintendence over the decisions of all courts and Tribunals within the respective jurisdictions is also part of the basic structure of the constitution. Furthermore, it was held that the decisions of Tribunals would be subject to the High Court’s Writ jurisdiction under Article 226/227 of the Constitution, before a Division Bench of the High Court within whose territorial jurisdiction the particular Tribunal falls. The learned Solicitor General also referred to Section 5(7) of the Act which provides that subject to the other provisions of the Act, Benches of the Central Administrative Tribunal shall ordinarily sit at New Delhi (which shall be known as the Principal Bench), Allahabad, Kolkata, Madras, New Bombay and at such other places as the Central Government may, by notification, specify, to support the contention that High Court at Calcutta did not have jurisdiction to exercise judicial review of the orders in P.T.No.215/2021. Relying on the decision in Union of India vs. A. Shainamol, IAS and Anr., reported in (2021) SCC Online SC 962, it is contended that the mere residence of the Applicant in a certain place would not amount to cause of action conferring jurisdiction upon the Bench of the Tribunal located at that place. Indubitably, this contention is relevant only for challenging the maintainability of an Original Application before any particular Bench of the Tribunal. The learned Solicitor General relied on the decision of this Court in JK Industries Ltd. & Anr. vs. Union of India & Ors., reported in (2007) 13 SCC 673 to contend that Rule 6 of the Procedural Rules ought not to have been interpreted by the High Court so as to take away Chairman’s jurisdiction to transfer a case under Section 25 of the Act as the cardinal principle of interpretation is that a rule made under a statute could not override or supersede a provision of the parent statute itself. According to us the said decision and the contention founded on the said decision are relevant only for the purpose of deciding the correctness of the order of transfer passed by the Principal Bench of the Tribunal in exercise of the power under Section 25 of the Act and not for deciding the jurisdictional High Court qua the order in 8. The Appellant also got a grievance that the High Court made some harsh or disparaging remarks in the impugned judgment against the Chairman of the Tribunal. The learned Solicitor General submitted that they were unsolicited and relied on various decisions to stress upon the requirement of their expunction. Nevertheless, we think it unnecessary to delve into all such contentions based on such decisions as Dr. Abhishek Manu Singhvi, learned Senior Counsel appearing for the respondent, fairly submitted that he would not contest on that issue and left it to us to decide. Obviously, the High Court found undue haste in the matter of disposal of P.T.No.215/2021 and that also persuaded the High Court to make such scathing observations and remarks in fact, against the Principal Bench of the Tribunal. But then, a perusal of the materials on record would reveal that WPCT No.78/2021 filed before the High Court that culminated in the impugned judgment was also passed with almost equal speed. That apart, both the order in P.T.No.215/2021 and the final judgment and order in WPCT No.78/2021 were passed, respectively, by the Tribunal and the High Court, after hearing both parties. The fact that the impugned judgment contain observations and remarks amounting to disparagement and as such, scathing in effect is not in dispute. We do not think it necessary to reproduce them in this judgment in the stated circumstances. However, contextually it will be apposite to refer to paragraphs 11 to 13 of the decision of this Court in Braj Kishore Thakur v. Union of India (AIR 1997 SC 1157). It was held therein thus: “11. No greater damage can be caused to the administration of justice and to the confidence of people in judicial institutions when Judges of higher Courts publicly express lack of faith in the subordinate Judges. It has been said, time and again, that respect for judiciary is not in hands by using intemperate language and by casting aspersions against lower judiciary. It is well to remember that a Judicial Officer against whom aspersions are made in the judgment could not appear before the higher Court to defend his order. Judges of higher Courts must, therefore, exercise greater judicial restraint and adopt greater care when they are tempted to employ strong terms against lower judiciary. 12. A quarter of a century ago Gajendragadkar, J. (as he then was) speaking for a Bench of three Judges of this Court, in the context of dealing with the strictures passed by High Court against one of its Subordinate Judicial Officers (Suggesting that extraneous considerations) stressed the need to adopt utmost judicial restraint against using strong language and imputation of corrupt motives against lower judiciary more so “because the Judge against whom the imputations are made has no remedy in law to vindicate his position” [Ishwari Prasad Mishra v. had to repeat such words on subsequent occasions also. In K.P. Tiwari v. State of M.P., AIR 1994 SC 1031, this Court came across certain observations of a learned Judge of the High Court casting strictures against a Judge of the subordinate judiciary and the Court used the opportunity to remind all concerned that using intemperate language and castigating strictures at the lower levels would only cause public respect in judiciary to dwindle. The following observations of this Court need repetition in this context: “The higher Courts every day come across orders of the lower Courts which are not justified either in law or in fact and modify them or set them aside. That is one of the functions of the superior Courts. Our legal system acknowledges the fallibility of the Judges and hence provides for appeals and revisions. A Judge tries to discharge his duties to the best of his capacity. While doing so, sometimes, he is likely to err……………………………………… it has also to be remembered that the lower judicial officers mostly work under a charged atmosphere and are constantly under a psychological pressure with all the contestants and their lawyers almost breathing down their necks more correctly up to their nostrils. They do not have the benefit of a detached atmosphere of the higher Courts to think coolly and decide patiently. Every error, however, gross it may look, should not, therefore, be attributed to improper motive.” 13. Recently, we had to say the same thing though in different words in Kashi Nath Roy v. State of situation. We then said thus (Para “It cannot be forgotten that in our system, like elsewhere, appellate and revisional Courts have been set up on the pre-supposition that lower Courts would in some measure of cases go wrong in decision- making, both on facts as also on law, and they have been knit-up to correct those orders. The human element, in justicing being an important element, computer-like functioning cannot be expected of the Courts: however, hard they may try and keep themselves precedent- trodden in the scope of discretions and in the manner of judging. Whenever any such intolerable error is detected by or pointed out to a superior Court, it is functionally required to correct that error and appropriate case, and in a manner befitting, maintaining the dignity of the Court and independence of judiciary, convey its message in its judgment to the officer concerned through a process of reasoning, essentially persuasive, reasonable, mellow but clear, and result-orienting, but rarely as a rebuke. Sharp reaction of the kind exhibited in the afore-extraction institutional functioning. The premise that a Judge committed a mistake or an error beyond the limits of tolerance, is no ground to inflict condemnation on the Judge-Subordinate, unless there existed something else and for exceptional grounds.” On our careful scanning of the circumstances and situations obtained in this case we are persuaded to think that no exceptional ground(s) exists in the case on hand to make scathing and disparaging remarks and observations against the Principal Bench of the Tribunal. At the same time, it is to be noted that the said order was, in fact, passed by the Chairman of the Tribunal on a formal application moved by the appellants herein and after hearing both parties. As a matter of law the Chairman could pass an order of transfer under Section 25 of the Act suo motu. Hence, the said observations and remarks, in troth, ought not to have been made against the Chairman of the Tribunal. To observe sobriety, we say that the remarks made by the High Court were unwarranted, uncalled for and avoidable being sharp reaction on unfounded assumptions. Ergo, we have no hesitation to hold that they were wholly unnecessary for the purpose of deciding the correctness or otherwise of the order of transfer. Hence, they are liable to be expunged. We do so. 9. Now, we will advert to the contentions advanced by Dr. Abhishek Manu Singhvi, learned Senior Counsel for the respondent to support and sustain the impugned judgment and final order in WPCT No.78/2021 whereby the order in P.T.No.215/2021 was set aside. It is submitted that the High Court is justified in entertaining WPCT No.78/2021 as the order of transfer passed in P.T.No.215/2021 fell within its power of judicial superintendence. The further contention is that it could not be said that the power under Section 25 of the Act was taken away solely because Rule 6 of the Procedure Rules was relied on to upturn the order in P.T.No.215/2021. The learned counsel, after drawing our attention to the factual background of the case, contended that the High Court had rightly exercised the power of judicial review and looked into the correctness of the order of transfer passed by the Chairman of the Tribunal (the Principal Bench of the Tribunal) in the invocation of the power under Section 25 of the Act. The said contention is primarily founded on Article 226(2) of the Constitution of India that confers powers on High Court in relation to territories within which the case of action, wholly or in part arises and also on the position settled by this Court in the decisions in Kusum Ingots and Alloys Limited vs. Union of India & Anr. (2004) 6 SCC 254, in Nawal Kishore Sharma vs. Union of India & Ors. (2014) 9 SCC 329 and in Navinchandra N. Majithia vs. State Compendium of judgments/orders under Section 25 of the Act has also been produced along with the written submissions on behalf of the respondent to support the contentions that the transfer order was illegal, arbitrary, passed in violation of the principals of natural justice and on irrelevant considerations. We may hasten to note that all those judgments/orders, except one, viz., the decision reported in 2019 SCC Online Del 11541 (Bhavesh Motiani vs. Union of India), were passed by the Principal Bench of the Tribunal rejecting applications for transfer of pending Original Applications in the exercise of power under Section 25 of the Act. Hence, they are not significant in deciding the stated moot question. We will refer to in Bhavesh Motiani’s case a little later. 10. We have carefully considered the contentions raised on behalf of the respondent by placing reliance on the aforesaid decisions of this Court. In Kusum Ingots’ case (supra), the question involved was “whether the seat of Parliament would be a relevant factor for determining the territorial jurisdiction of a High Court to entertain a writ petition under Article 226 of the Constitution of India when the constitutionality of a Parliamentary Act is under challenge”. After referring to the expression “cause of action” for territorial jurisdiction to entertain a writ petition, in terms of Article 226(2) of the Constitution, this Court held thus: “18. The facts pleaded in the writ petition must have a nexus on the basis whereof a prayer can be granted. Those facts which have nothing to do with the prayer made therein cannot be said to give rise to a cause of action which would confer jurisdiction on the Court. 19. Passing of a legislation by itself in our opinion does not confer any such right to file a writ petition unless a cause of action arises therefor. 20. A distinction between a legislation and executive action should be borne in mind while determining the said question. 21. A parliamentary legislation when it receives the assent of the President of India and is published in the Official Gazette, unless specifically excluded, will apply to the entire territory of India. If passing of a legislation gives rise to a cause of action, a writ petition questioning the constitutionality thereof can be filed in any High Court of the country. It is not so done because a cause of action will arise only when the provisions of the Act or some of them which were implemented shall give rise to civil or evil consequences to the petitioner. A writ court, it is well settled, would not determine a constitutional question in a vacuum.” 11. In Nawal Kishore’s case, the issue concerned was with respect to the jurisdiction of a particular High Court against an authority/person residing outside its territorial jurisdiction. That question was considered with reference to Article 226(2) of the Constitution. It was held that writ could be issued if cause of action wholly or partially had arisen within the territorial jurisdiction of High Court concerned even if the person or authority against whom writ is sought for is located outside its territorial jurisdiction. However, it was held that in order to maintain such a writ petition, the petitioner had to establish that such respondents infringed his legal rights within the limits of the High Court’s jurisdiction. In Navin Chandra N. Majithia’s case, again the jurisdictional issue was considered with reference to Article 226(2) of the Constitution and held that the High Court concerned would have jurisdiction to entertain a writ petition if any part of the cause of action arose within its territorial limits even though the seat of government or authority or residence of persons against whom direction, order or writ is sought to be issued is not within its territory. 12. On a careful scanning of the aforesaid decisions relied on by the respondent and consideration of the nature of the question that calls for decision in the case on hand and also what we have observed earlier, we find that the above decisions have no applicability for deciding the stated moot question. We will further elaborate the non-applicability of those decisions in the course of further consideration of the matter. We are not dealing with the cause of action for filing O.A.No.1619/2021 before the Kolkata Bench of the Tribunal in this Judgement. Even if the bundle of facts constituting cause of action for filing the said O.A. confers on the Kolkata Bench of the Tribunal the jurisdiction to entertain the same, the question here is whether its transfer from the said Bench to the Principal Bench vide order dated 20.10.2021 in P.T.No.215/2021 by the Chairman of the Central Administrative Tribunal (the Principal Bench) in invocation of powers under Section 25 of the Act falls within the territorial jurisdiction and power of superintendence of the High Court at Calcutta and the fate of the challenge against the order in WPCT No.78/2021 dated 29.10.2021 would depend upon its answer. We may hasten to state that if the challenge in the writ petition was against an order passed by the Kolkata Bench of the Tribunal in O.A.No.1619/2021 there can be no doubt with respect to the jurisdiction of the High Court at 13. Going by Section 25 of the Act, extracted hereinbefore, an independent application for transfer of an Original Application filed and pending before any bench of the Tribunal could be filed and the power to transfer lies with the Chairman. The Section mandates that if such an application is made, notice of it has to be given to the opposite party. At the same time, the Section also provides that on his motion and without any such notice the Chairman could transfer any case pending before one Bench, for disposal, to any other Bench of the Tribunal. Evidently, the said Section recognizes, the fundamental principles of justice and fair play namely that ‘Justice must not only be done but it must be seen to have been done’. It would enable the Chairman to avert a ‘reasonable suspicion’ of or ‘real likelihood’ of bias. It could also be exercised on establishing any other sufficient and sustainable grounds. This power is to be used with great circumspection and sparingly. We do not think it necessary to elaborate on this issue as we have already stated that we are confining our consideration only to the specific question whether High Court at Calcutta was having jurisdiction to entertain the challenge against the order in P.T.No.215/2021. 14. Before delving into the moot question any further we deem it appropriate to refer to the impugned judgment to know in what manner the order of transfer passed in P.T.No.215/2021 was understood by the High Court. In other words, whether the High Court while passing the impugned judgment treated the order impugned before it as an order passed in the O.A.No.1619/2021 pending before the Kolkata Bench of the Tribunal that lies within its territorial jurisdiction by that Bench of the Tribunal or as an order passed at the Principal Bench of the Tribunal lying outside its jurisdiction transferring that very Original Application to another Bench of the Tribunal. A scanning of the impugned order itself would reveal that the High Court perfectly understood and treated the order impugned before it in WPCT No.78/2021, being the order in P.T.No.215/2021, as an order passed by the Principal Bench of the Tribunal at New Delhi, transferring O.A.No.1619/2021. This, in our opinion, is the correct understanding of the said order, as it was passed in P.T.No.215/2021, filed by the Appellant herein who was also a party to O.A.No.1619/2021, calling for an order in exercise of the power under Section 25 of the Act, before the Principal Bench. This aspect is very clear from paragraphs 22, 23, 24, and 25 of the impugned judgement of the High Court. They “22. The questions which acquire relevance to decide the present writ petition are as 23. Is the present writ petition maintainable before this court, in view of the impugned order being passed by the Principal Bench situated at New Delhi? 24. Did the Principal Bench act beyond its jurisdiction in passing the impugned 25. Was the Principal Bench, CAT justified in law in passing the impugned order on merits?” 15. When once the High Court found the order impugned as one passed by the Principal Bench we have no hesitation to hold that the High Court should have confined its consideration firstly, to decide its own territorial jurisdiction for exercising the power of judicial review over the order dated 22.10.2021 passed by the Principal Bench in P.T.No.215/2021 in the correct perspective, without reference to the bundle of facts constituting the cause of action for filing O.A.No.1619/2021 before the Kolkata Bench of the Tribunal founded on the cause of action referred to in Rule 6(2) of the Procedure Rules that decides the place of filing of an O.A.. To wit, those bundle of facts which would be necessary for the applicant to prove, if traversed, in order to support the right to a judgment from that Bench of the Tribunal. In such circumstances, the question of infringement or otherwise of the right of the respondent herein to litigate before the Kolkata Bench of the Tribunal could not have been gone into, on merits, without deciding the seminal question whether the High Court of Calcutta itself had jurisdiction to undertake judicial review of the order passed by the Chairman in exercise of power under Section 25 at the Principal seat of the Tribunal at New Delhi we do not have any hesitation in holding that the High Court at Calcutta could not have entertained the Writ 16. As noted earlier the order of transfer of O.A.No.1619/2021 passed in P.T.No.215/2021 was understood and dealt with by the High Court as an order passed by the Principal Bench of the Tribunal. Section 5(7) of the Act makes it clear that the Bench of the Central Administrative Tribunal at New Delhi is known as the Principal Bench. It is in this context and the relevant factors as also the situations likely to cause conflicting decisions by different High Courts referred to hereinbefore in the preceding paragraphs of this judgment that the decision of this Court in L. Chandra Kumar’s case assumes relevance. Earlier, we made a brief reference about the law laid down in the said decision. One of the broad issues that was considered by the Constitution Bench was as follows: “Whether the power conferred upon Parliament or the State Legislatures, as the case may be, by sub-clause(d) of clause(2) of Article 323 A or sub- clause(d)of clause(3) of Article 323 B of the Constitution, to totally exclude the jurisdiction of ‘all courts’, except that of the Supreme Court under Article 136, in respect of disputes and complaints referred to in clause(1) of Article 323A or with regard to all or any of the matters specified in clause (2) of Article 323B, runs counter to the power of judicial review conferred on the High Courts under Article 226/227 and on the Supreme Court under Article 32 of the Constitution? During such consideration the constitutional validity of Section 28 of the Act, the “exclusion of jurisdiction” clause was also considered by this court. It reads thus:- S.28. Exclusion of jurisdiction of courts except the Supreme Court under article 136 of the Constitution.- On and from the date from which any jurisdiction, powers and authority becomes exercisable under this Act by a Tribunal in relation to recruitment and matters concerning recruitment to any Service or post or service matters concerning members of any Service or persons appointed to any Service or (b) any Industrial Tribunal, Labour Court or other authority constituted under the Industrial Disputes Act, 1947 (14 of 1947) or any other corresponding law for the time being shall have], or be entitled or exercise any jurisdiction, powers or authority in relation to such recruitment or matters concerning such recruitment or such service matters. In view of the reasoning adopted the constitution Bench held Section 28 of the Act and the “exclusion jurisdiction” clauses in all other legislations enacted under the aegis of Article 323A and 323B, to the extent they exclude the jurisdiction of the High Courts under Articles 226/227 and the Supreme Court under Article 32, of the constitution, was held unconstitutional besides holding clause 2(d) of Article 323A and clause 3(d) of Article 323B, to the same extent, as unconstitutional. Further, it was held thus:- “The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other Courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323A and Article 323B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls.” When once a Constitution Bench of this court declared the law that “all decisions of Tribunals created under Article 323A and Article 323B of the Constitution will be subject to the scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls”, it is impermissible to make any further construction on the said issue. The expression “all decisions of these Tribunals” used by the Constitution Bench will cover and take within its sweep orders passed on applications or otherwise in the matter of transfer of Original Applications from one Bench of the Tribunal to another Bench of the Tribunal in exercise of the power under Section 25 of the Act. In other words, any decision of such a Tribunal, including the one passed under Section 25 of the Act could be subjected to scrutiny only before a Division Bench of a High Court within whose jurisdiction the Tribunal concerned falls. This unambiguous exposition of law has to be followed scrupulously while deciding the jurisdictional High Court for the purpose of bringing in challenge against an order of transfer of an Original Application from one bench of Tribunal to another bench in the invocation of Section 25 of the Act. The law thus declared by the Constitution Bench cannot be revisited by a Bench of lesser quorum or for that matter by the High Courts by looking into the bundle of facts to ascertain whether they would confer territorial jurisdiction to the High Court within the ambit of Article 226(2) of the Constitution. We are of the considered view that taking another view would undoubtedly result in indefiniteness and multiplicity in the matter of jurisdiction in situations when a decision passed under Section 25 of the Act is to be called in question especially in cases involving multiple parties residing within the jurisdiction of different High Courts albeit aggrieved by one common order passed by the Chairman at the Principal Bench at New Delhi. 17. The undisputed and indisputable position in this case is that the WPCT No.78/2021 was filed to challenge the order dated 22.10.2021 in P.T.No.215/2021 of the Central Administrative Tribunal, Principal Bench at New Delhi, (by the Chairman of the Tribunal in exercise of the power under Section 25 of the Act sitting at the Principal Bench) transferring O.A.No.1619/2021 to its files. On applying the said factual position to the legal exposition in L. Chandra Kumar’s case (supra) it is crystal clear that the Principal Bench of the Central Administrative Tribunal at New Delhi, which passed the order transferring O.A.No.1619/2021 vide order in P.T.No.215/2021 falls within the territorial jurisdiction of High Court of Delhi at New Delhi. Needless to say that the power of judicial review of an order transferring an Original Application pending before a Bench of the Tribunal to another Bench under Section 25 of the Act can be judicially reviewed only by a Division Bench of the High Court within whose territorial jurisdiction the Bench passing the same, falls. In fact, the decision in Bhavesh Motiani’s case (supra), relied on by the respondent is also in line with the said position as in that case also, as against the order of transfer passed under Section 25 of the Act by the Principal Bench of the Central Administrative Tribunal at New Delhi Writ Petition was filed by the aggrieved party only before the High Court of Delhi. This is evident from the very opening sentence of the said judgment, which reads thus: “The present petition has been filed being aggrieved by order dated 30.11.2018 passed by the Central Administrative Tribunal, by the O.A.No.421/2018 pending before the Ahmedabad Bench has been transferred to the Principal Bench of the Tribunal.” In the instant case, the High Court at Calcutta has usurped jurisdiction to entertain the Writ Petition, viz., WPCT No.78/2021, challenging the order passed by the Central Administrative Tribunal, New Delhi, in P.T.No.215/2021, even after taking note of the fact that the Principal Bench of the Tribunal does not lie within its territorial jurisdiction. 18. In the circumstances, based on our conclusion the impugned judgment and final order in WPCT No.78/2021 passed by the High Court at Calcutta is to be held as one passed without jurisdiction and hence, it is ab initio void. Accordingly, it is set aside. The writ petition being WPCT No.78/2021 filed before the High Court at Calcutta is accordingly dismissed, however, with liberty to the petitioner therein/the respondent herein to assail the same before the jurisdictional High Court, if so advised. In that regard, we clarify the position that we have not made any finding or observation regarding the correctness or otherwise of the order dated 22.10.2021 passed by the Principal Bench of the Tribunal (in fact, by the Chairman of the Tribunal) in P.T.No.215/2021. Needless to say that in the event of filing of such a Writ Petition, it shall be considered on its own merits, in accordance with law. 19. The appeal is allowed in the above terms. Pending applications, if any, stand disposed of.
The Supreme Court has decided that if a special court (called a tribunal) makes a ruling, only the High Court in that same geographic area can review it. This rule applies even to decisions made under Section 25 of the Administrative Tribunals Act of 1985. The Court pointed to a long-standing principle from an earlier Supreme Court case, L Chandrakumar, which stated that all decisions from these special courts must be reviewed by the High Court that oversees that particular court's area. Two judges, Justice A.M. Khanwilkar and Justice C.T. Ravikumar, were looking at a case where the national government had challenged a decision from the Calcutta High Court. The Calcutta High Court had overturned a ruling made by the main branch of a special court (the Central Administrative Tribunal) located in New Delhi. The Supreme Court repeated its earlier stance on this issue. The case was about a high-ranking official, Alapan Bandyopadhyay, who was disciplined for not attending a meeting with the Prime Minister. This meeting was held to check the damage from Cyclone YAAS. Mr. Bandyopadhyay challenged his punishment at the Central Administrative Tribunal in Calcutta. However, the central government asked, and the main tribunal in New Delhi then moved his case from Calcutta to New Delhi. The tribunal's Chairman did this using a specific power given to him by Section 25 of the Administrative Tribunals Act of 1985. Mr. Bandyopadhyay then went to the Calcutta High Court to challenge the order that had moved his case. The Calcutta High Court agreed with him and canceled the main tribunal's transfer order. Because of this, the central government took the case to the Supreme Court. It was clear from Section 25 of the Administrative Tribunals Act of 1985 that the Chairman of the tribunal *did* have the power to move cases from one branch to another. So, the Supreme Court then focused on the main question: whether the Calcutta High Court had the right to review the order passed by the Chairman of the main tribunal, which was located in New Delhi. The Supreme Court judges referred back to the L. Chandra Kumar case. That earlier ruling clearly stated that High Courts have a fundamental power to oversee and review decisions made by all courts and special tribunals within their specific geographic areas. This power is a basic part of the country's Constitution. So, tribunal decisions must be reviewed by the High Court that is in the same area as that tribunal. The Calcutta High Court had agreed with Mr. Bandyopadhyay's challenge. It believed it had the right to hear the case because some of the events that led to the lawsuit had happened within its area, as allowed by Article 226(2) of the Constitution. The Supreme Court disagreed with the Calcutta High Court's way of thinking. It pointed out that the High Court's decision went against the clear rule set down by the L Chandrakumar case. Justice Ravikumar wrote the Supreme Court's decision, which stated: "Once a special Supreme Court bench has clearly stated a law – that 'all decisions from special courts will be reviewed by the High Court that is in the same area as that special court' – no other court, including High Courts, can try to interpret that rule differently. High Courts cannot look at specific facts of a case to claim they have the right to hear it if the special court itself is not within their area. We believe that allowing other interpretations would create confusion and many lawsuits. This would be especially true when someone wants to challenge an order from Section 25 of the Act, particularly if many people in different High Court areas are affected by one order from the main tribunal in New Delhi." The judges strongly restated that rulings made by special courts, including transfer orders under Section 25 of the Administrative Tribunals Act, can only be reviewed by the High Court that is in the same geographic area as that special court. They also noted that this clear legal rule must be strictly followed when deciding which High Court can hear a challenge against an order that moves a case from one tribunal branch to another. The Supreme Court also made it clear that the Calcutta High Court "fully understood and recognized that the order it was being asked to review came from the main tribunal in New Delhi." Because of this, the High Court should have only focused on whether *it* had the proper geographic authority to review an order made in New Delhi, rather than looking at where the original issue arose. So, the Supreme Court stated that the Calcutta High Court had wrongly taken power it did not have when it canceled the order from the Central Administrative Tribunal in New Delhi. The Supreme Court therefore declared the Calcutta High Court's order invalid from the very beginning and officially canceled it. However, the judges allowed Mr. Bandyopadhyay to challenge the tribunal's original order in the High Court that *did* have the correct geographic authority over the New Delhi tribunal. In conclusion, the central government's appeal was approved. The Court, however, gave Mr. Bandyopadhyay the freedom to go to the correct High Court to challenge the tribunal's order.
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1. The consequences of a testamentary disposition by a Will dated 15.4.1968 by one Tulsi Ram, who passed away on 17.11.1969 is still pending resolution before us after half a century. 2. The Will aforesaid bequeathed the testator’s estate to his son, the appellant herein, and his second wife Ram Devi (the first wife being deceased whose progeny is the appellant). Land measuring 175 kanals and 9 marla, a residential house and a Bara is Village Jundla, Haryana was bequeathed half and half to the appellant and Ram Devi. However, the nature of bequeath was different for the two. The appellant was given absolute ownership rights to the extent of his share of land and property whereas Ram Devi was given a limited ownership for her enjoyment during her lifetime with respect to her share of the land with a specific provision that she could not alienate, transfer or create third party rights over the same. Thereafter the property was to vest absolutely in the appellant after her lifetime. 3. It appears that the properties were enjoyed as per the Will after the demise of Tulsi Ram in 1969 for quite a few years till the first round of litigation began – Bimla Devi, daughter of Ram Devi instituted a suit in the Court of Sub Judge 1st Class, Karnal for declaration against her mother, Ram Devi, claiming that she had become owner in possession of half share of the land willed to Ram Devi by Tulsi Ram, which resulted in a decree being passed on 15.1.1986. It may be stated at this stage itself that by very nature the suit was collusive. On the decree being passed Bimla Devi executed a lease deed in favour of one Amar Singh on 17.6.1986 in respect of land falling within Ram Devi’s limited share. This prompted the appellant to file a Civil Suit No.94/1993 for declaration and permanent injunction before the Senior Sub Judge, Karnal impleading Ram Devi, Bimla Devi and Amar Singh. The gravamen of the suit was that Ram Devi having only a limited life interest the decree of declaration by Bimla Devi had been obtained through collusion and the lease deed was a bogus document which would not have any effect upon the rights of the appellant to inherit the property after the demise of Ram Devi. The suit was, however, contested only by Ram Devi with the other two defendants being proceeded ex parte. The suit resulted in a judgment and decree dated 27.9.1995 to the effect that the appellant having proved the Will executed by Tulsi Ram, the case clearly fell under Section 14(2) of the Hindu Succession Act, 1956 (hereinafter referred to as the ‘said Act’) which was in the nature of an exception as it precluded the benefits of Section 14(1) of the said Act to accrue with respect of a property inter alia inherited under a Will with a restricted right in such a property. Thus, it was concluded that the limited estate of Ram Devi could not be expanded to an absolute estate and the decree of the Civil Court dated 15.1.1986 and the lease deed dated 17.6.1986 were consequently set aside. 4. It may be noted that even though the suit was pending in the interregnum period Ram Devi executed two sale deeds dated 29.4.1993 qua land measuring 38 kanals 14 marlas in favour of one Dharam Singh and 11 kanals 3 marlas in favour of Kanta Devi. Another sale deed was subsequently executed on 8/9.6.1998 in favour of Baldeva for land measuring 40 kanals 8 marlas. All these were part of the suit land. The latter was during the pendency of the appeal by Ram Devi before the Additional District Judge, Karnal which appeal was also finally dismissed vide judgment dated 15.4.1999. Insofar as the appeal qua Baldeva was concerned, that was also dismissed due to inability of Ram Devi to serve notice on Baldeva despite sufficient opportunity. In the third round of the same litigation Ram Devi’s second appeal under Section 41 of the Punjab Courts Act, 1918 (hereinafter referred to as the ‘PC Act’) also met the same fate vide judgment dated 23.10.2001 in RSA No.1700/1999. The whole matter ought to have received a quietus thereafter as the Special Leave Petition was also dismissed vide order dated 29.4.2002. It may be noticed that in the interregnum period Ram Devi also passed away on 26.8.1999. This is as far as the story of the first round of litigation. 5. The second round of litigation began when the appellant instituted a Civil Suit No.256/157 of 2008 before the Civil Judge, SD, Karnal for declaration and injunction challenging the sale deeds executed by Ram Devi. This suit was also decreed vide judgment and decree dated 13.8.2009 in favour of the appellant. 6. Once again the gravamen of the decision of the learned Civil Judge was the earlier judgment and decree dated 27.9.1995 opining that Ram Devi had only a limited ownership right and could not have alienated the suit property. There being no change in law, the previous decree in favour of the appellant was held binding among the parties and their successors-in-interest. The sale deeds executed, thus, found to be unsustainable being against the decree of the lower court. Once again, opinion was the same as to the construction of Sections14(1) and 14(2) of the said Act as any contrary interpretation would tantamount to proscribing the right of a Hindu to execute a Will as envisaged under Section 30 of the said Act. The court granted a decree of possession to the appellant being the rightful owner of the same. The court also noted that the title of the purchasers could not be better titled than Ram Devi possessed as they had acquired their rights from her and could not even be considered bona fide purchasers for value in view of the history of the 7. Kanta Devi, legal heirs of Baldev and Dharam Singh then preferred an appeal against the said judgment dated 13.8.2009, which was dismissed vide judgment dated 7.10.2010 in Civil Appeal No.56/2009. That gave rise to the second appeal before the High Court, being RSA No.210/2011. 8. The respondents pleaded before the High Court by relying upon the judgment of this Court in V. Tulasamma & Ors. v. Sesha Reddy (Dead) by LRs.1 to contend that Ram Devi’s right over the suit property granted under the Will had crystallised into an absolute ownership right making her competent to transfer the same. The subsequent judgment of this Court in Jupudy Pardha Sarathy v. Pentapati Rama Krishna & Ors.2 was also referred to in support of the said proposition. The decree in the first round of litigation was contended not to operate as res judicata in the second suit as the judgment in the earlier suit was contrary to the law prevailing at the time of their consideration (Shakuntla Devi v. Kamla & Ors.3 which referred to Mathura Prasad Bajoo & Ors. v. Dossibai N.B. Jeejebhoy4). Without prejudice to the same the respondents also claimed to be bona fide purchasers for value and, thus, were protected under Section 41 of the Transfer of Property Act, 1882 (hereinafter referred to as the ‘TP Act’). 9. On the other hand the appellant contended that the doctrine of res judicata would apply in view of the earlier adjudication as the matter of Ram Devi having a limited estate has been upheld right till the Supreme Court. The appellant had also taken possession of the suit property and execution of the judgments was under challenge before the High Court. 10. The fate of the respondents after the amendment turned favourable as they succeeded before the High Court in terms of the impugned judgment dated 22.2.2018. The discussion in the impugned judgment (a) Whether the first round of litigation operate as res judicata for the appeal. (b) Whether Ram Devi’s limited right over the suit property conferred through the Will had crystallised into an absolute right under Section 14(1) of the said Act. (c) Whether the High Court was mandated to frame a substantial question of law in deciding the second appeal. 11. On the first aspect the High Court found that the factual scenario and legal principles enunciated in Shakuntla Devi5 case would be squarely applicable to the facts of the present case. In the factual scenario of that case, one Uttamdasi was the successor of the suit property and had alienated the same through a sale deed and gift deed. The daughter of Uttamdasi, Takami, successfully challenged the alienation and the decree became final. Uttamdasi thereafter executed a Will with respect to the same suit property. Tikami instituted a suit for possession on the basis of a previous declaratory decree wherein she had been held to have ownership right of the property. This Court opined that the case would constitute as a principle of res judicata. The first declaratory decree in favour of Tikami was granted on the basis of a limited right held by Uttamdasi in the suit property. By the time the second decree was tried, the Supreme Court in V. Tulasamma & Ors.6 case had declared the law under Section 14 of the said Act to the extent that the beneficiary under a Will such as Uttamdasi with limited rights would become the absolute owner of the same. Since the law had been altered since the first declaratory decree, the same would not operate as res judicata in a decree for possession. The judgment in V. Tulasamma & Ors.7 case was not retrospective but a declaratory decree simpliciter would not attain finality if it is used in a future decree of possession and it would be open for a defendant in a future suit for possession to establish that the earlier declaratory decree was not lawful. Thus, the respondents were held entitled to challenge the appellant’s possession of the suit property. 12. On the second aspect the High Court has taken a view that V. Tulasamma & Ors.8 case had sufficiently resolved any uncertainty under Sections 14(1) & 14(2) of the said Act. A Hindu female has a right to maintenance on a property if a charge was created for her maintenance, the right would become legally enforceable irrespective, even without a charge, the claim for maintenance was a pre-existing right so that any transfer declaring such right would not confer a new title but merely confirm pre-existing rights and Section 14(2) of the said Act cannot be interpreted in a manner that would dilute Sections 14(1) and 14(2) of the said Act. Only in a scenario where the instrument created a new title in favour of the wife for the first time, would Section 14(2) would come into play and not where there was a pre-existing right. Ram Devi was held to have been conferred with a limited right which would translate into an absolute right over the suit property as it was only a confirmation of the pre-existing right over the property. 13. On the last aspect it was held that in view of the decision of this Court in Pankajakshi (dead) through LRs & Ors. v. Chandrika & Ors.9, the High Court was not required to frame a substantial question of law while deciding the plea as Section 97(1) of the Code of Civil Procedure, 1908 (hereinafter referred to as the ‘said Code’) would have no applicability to the PC Act. 14. On the appellant approaching this Court notice was issued in the SLP on 4.7.2018 with the direction to maintain status quo as on the date as the appellant had already taken over possession in the execution of the decree. Leave was granted on 4.2.2019 and the interim order made absolute. 15. In the conspectus of the aforesaid, the matter was heard by us. 16. In order to appreciate the provisions of the said Act, it may be appropriate to reproduce Section 14 of the said Act as under: “14. Property of a female Hindu to be her absolute (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Explanation.—In this sub-section, “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act. (2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.” 17. There is no doubt that Section 14 of the said Act is the part of the said Act to give rights of a property to a Hindu female and was a progressive step. Sub-Section (1) of Section 14 of the said Act makes it clear that it applies to properties acquired before or after the commencement of the said Act. Any property so possessed was to be held by her as full owner thereof and not as a limited owner. The Explanation to sub-Section (1) of Section 14 of the said Act defines the meaning of “property” in this sub-section to include both movable and immovable property acquired by the female Hindu by inheritance or devise or a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, or by her skill or exertion, or by purchase or by prescription or in any other manner whatsoever, including stridhana. The Explanation is quite expansive. 18. Sub-Section (2) of Section 14 of the said Act is in the nature of a proviso. It begins with a ‘non-obstante clause’. Thus, it says that “nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court....” etc. where a restricted estate in such property is prescribed. In our view the objective of sub-Section (2) above is quite clear as enunciated repeatedly by this Court in various judicial pronouncements, i.e., there cannot be a fetter in a owner of a property to give a limited estate if he so chooses to do including to his wife but of course if the limited estate is to the wife for her maintenance that would mature in an absolute estate under Section 14(1) of the said 19. Before considering the submissions it would be appropriate to turn to the Will itself. The Will while conferring a limited estate on Ram Devi, Tulsi Ram had clearly stated that she will earn income from the property for her livelihood. The income, thus, generated from the property is what has been given for maintenance and not the property itself. The next clarification is that after the lifetime of Ram Devi, the appellant will get the ownership of the remaining half portion also. It is specified that in case Ram Devi pre-deceases Tulsi Ram, then all the properties would go absolutely to the appellant and that the other children will have no interest in the property. We may note that Tulsi Ram had six children. One son and four daughters are from the first wife and Bimla Devi was the daughter from the second wife. At the stage when the Will was executed one of the daughters was unmarried and the Will also provided that in case for performing the marriage Ram Devi needs money she will have the right to mortgage the property and earn money from the same and will further have the right to gain income even prior to the marriage. 20. We have set forth the terms and conditions of the Will to understand the intent of the testator. The testator is, at least, clear in terms that the income derived from the property is what is given to the second wife as maintenance while insofar as the properties are concerned, they are divided half and half with the appellant having an absolute share and the wife having a limited estate which after her lifetime was to convert into an absolute estate of the appellant. 21. Now turning to the submissions of the learned counsel for the parties. 22. Learned counsel for the appellant contended that the life estate was not given to Ram Devi in lieu of recognition of any pre-existing right of Ram Devi or in lieu of maintenance and, thus, Section 14(2) of the said Act would apply and not Section 14(1) of the said Act. The plea of res judicata was again reiterated. It was urged that the High Court proceeded on an erroneous premise as if the law had changed from the first round of litigation while the fact was that the law was the same at both stages of time. The distinction which was sought to be made was that Shakuntla Devi10 case was wrongly relied upon as the Will in that case was dated 1.10.1935 and it was, thus, a pre-1956 Will and, thus, that judgment was not precedent for factual scenario in question. The suit property was a self-acquired property of Tulsi Ram and, thus, he was competent to execute the Will. 23. We may note that learned counsel for the appellant did seek to contend that since possession of the property was taken over by the appellant and Ram Devi was not in possession thereof, she cannot claim the benefit of Section 14(1) of the said Act (Sadhu Singh v. Gurudwara Sahib Narike & Ors.11 and Gaddam Ramakrishna Reddy & Ors. v. Gaddam Ramireddy & Ors.12). We may, however, note that in our perspective that is not a material consideration as the possession is stated to have been taken over in pursuance of the decree of the trial court. 24. On behalf of the respondents it was, once again, emphasised that the factual scenario was similar to Shakuntla Devi13 case and the rights of a female Hindu post the said Act have been crystallised and enunciated in V. Tulasamma & Ors.14 case since she was an absolute owner she was entitled to sell the land and the respondents were bona fide buyers who were protected by Section 41 of the TP Act. Further no substantial question of law was required to be framed in view of the Constitution Bench judgment of the Supreme Court in Pankajakshi (dead) through LRs & Ors.15 case. 25. We have extracted the relevant portions of the enactment, the document in question being the Will and have already opined on the interpretation of the Will. The submissions of the learned counsel for the parties have, thus, to be appreciated in the conspectus of the same. 26. We do believe that there are only two real aspects to be examined in the present case as the issue of even framing a question of law stands settled. The two aspects, in our view are as under: i. In the given factual scenario did Ram Devi become the absolute owner of the property in view of Section 14(1) of the said Act or in view of the Will the Explanation under Section 14(2) would apply. ii. What is the effect of the first round of litigation which came up to this Court between the appellant and Ram Devi, the two beneficiaries of the Will. 27. We are of the view that both these questions have to be answered in favour of the appellant and for that reason the impugned judgment is unsustainable. 28. We would first like to turn to the seminal judgment in V. Tulasamma & Ors.16 case. In para 20 the propositions emerging in respect of incidents and characteristics of a Hindu woman’s right to maintenance have been crystallised as under: “20. Thus on a careful consideration and detailed analysis of the authorities mentioned above and the Shastric Hindu Law on the subject, the following propositions emerge with respect to the incidents and characteristics of a Hindu woman's right to (1) that a Hindu woman's right to maintenance is a personal obligation so far as the husband is' concerned, and it is his duty to maintain her even if he has no property. If the husband has property then the right of the widow to maintenance becomes an equitable charge on his property and any person who succeeds to the property carries with it the legal obligation to maintain the widow; (2) though the widow's right to maintenance is not a right to property but it is undoubtedly pre-existing right in property, i.e. it is a jus ad rem not jus in rem and it can be enforced by the widow who can get a charge created for her maintenance on the property either by an agreement or by obtaining a (3) that the right of maintenance is a matter of moment and is of such importance that even if the joint property is sold and the purchaser has notice of the widow's right to maintenance, the purchaser is legally bound to provide for (4) that the right to maintenance is undoubtedly a pre- existing right which existed in the Hindu Law long before the passing of the Act of 1937 or the Act of 1946, and is, (5) that the right to maintenance flows from the social and temporal relationship between the husband and the wife by virtue of which the wife becomes a sort (I.L.R. 27 Mad. 45. (2) I.L.R. 18 Bom. 452) of co-owner in the property of her husband, though her co-ownership is of a subordinate (6) that where a Hindu widow is in possession of the property of her husband, she is entitled to retain the possession in lieu of her maintenance unless the person who succeeds to the property or purchases the same is in a position to make due arrangements for her maintenance.” 29. In the light of the aforesaid passage, Sections 14(1) & 14(2) of the said Act were entered by the Court. The word “possessed” was held to be used in a wide sense not requiring a Hindu woman to be an actual or physical possession of the property and it would suffice if she has a right in the property. The discussion in para 33 thereafter opines that the intention of the Parliament was to confine sub-section (2) of Section 14 of the said Act only to two transactions, viz., a gift and a will, which clearly would not include property received by a Hindu female in lieu of maintenance or at a partition. The intention of the Parliament in adding the other categories to sub-section (2) was merely to ensure that any transaction under which a Hindu female gets a new or independent title under any of the modes mentioned in Section 14(2) of the said Act. The conclusions were thereafter set forth in para 62 of the judgment as under: “62. We would now like to summarise the legal conclusions which we have reached after an exhaustive considerations of the authorities mentioned above; on the question of law involved in this appeal as to the interpretation of s. 14(1) and (2) of the Act of 1956. These conclusions may be stated thus: (1) The Hindu female's right to maintenance is not an empty formality or an illusory claim being conceded as a matter of grace and generosity, but is a tangible right against property which flows from the spiritual relationship between the husband and the wife and is recognised and enjoined by pure Shastric Hindu Law and has been strongly stressed even by the earlier Hindu jurists starting from Yajnavalkya to Manu. Such a right may not be a right to property but it is a right against property and the husband has a personal obligation to maintain his wife and if he or the family has property, the female has the legal right to be maintained therefrom. If a charge is created for the maintenance of a female, the said right becomes a legally enforceable one. At any rate, even without a charge the claim for maintenance is doubtless a pre-existing right so that any transfer declaring or recognising such a right does not confer any new title but merely endorses or confirms the pre-existing rights. (2) Section 14(1) and the Explanation thereto have been couched in the widest possible terms. And must be liberally construed in favour of the females so as to advance the object of the 1956 Act and promote the socio-economic ends, sought to be achieved by this long needed legislation. (3) Sub-section (2) of s. 14 is in the nature of a proviso and has a field of its own without interfering with the operation of s. 14(1) materially. The proviso should not be construed in a manner so as to destroy the effect of the main provision or the protection granted by s. 14(1) or in a way so as to become totally inconsistent with the main provision. (4) Sub-section (2) of s. 14 applies to instruments, decrees, awards, gifts etc. which create independent and new titles in favour of the females for the first time and has no application where the instrument concerned merely seeks to confirm, endorse, declare or recognise pre-existing rights. In such cases a restricted estate in favour of a female is legally permissible and s. 14(1) will not operate in this sphere. Where, however, an instrument merely declares or recognises a pre-existing right, such as a claim to maintenance or partition or share to which the female is entitled, the sub-section has absolutely no application and the female's limited interest would automatically be enlarged into an absolute one by force of s. 14(1) and the restrictions placed, if any, under the document would have to be ignored. Thus where a property is allotted or transferred to a female in lieu of maintenance or a share at partition, the instrument is taken out of the ambit of sub- s. (2) and would be governed by s. 14(1) despite any restrictions placed on the powers of the transferee. (5) The use of express terms like "property acquired by a female Hindu at a partition", "or in lieu of maintenance" "or arrears of maintenance" etc. in the Explanation to s. 14(1) clearly makes sub-s. (2) inapplicable to these categories which have been expressly excepted from the operation of (6) The words "possessed by" used by the Legislature in s. 14(1) are of the widest possible amplitude and include the state of owning a property even though the owner is not in actual or physical possession of the same: Thus, where a widow gets a share in the property under a preliminary decree before or at the time when the 1956 Act had been passed but had not been given actual possession under a final decree, the property would be deemed to be possessed by her and by force of s. 14(1) she would get absolute interest. in the property. It is equally well settled that the possession of the widow, however, must be under some vestige of a claim, right or title, because the section does not contemplate the possession of any rank trespasser without any right or title. (7) That the words "restricted estate" used in s. 4(2) are wider than limited interest as indicated in s.14(1) and they include not only limited interest, but also any other kind of limitation that may be placed on the transferee.” 30. In our view the relevant aspect of the aforesaid conclusion is para 4 which opines where sub-section (2) of Section 14 of the said Act would apply and this does inter alia applies to a Will which may create independent and new title in favour of females for the first time and is not a recognition of a pre-existing right. In such cases of a restricted estate in favour of a female is legally permissible and Section 14(1) of the said Act will not operate in that sphere. 31. We may add here that the objective of Section 14(1) is to create an absolute interest in case of a limited interest of the wife where such limited estate owes its origin to law as it stood then. The objective cannot be that a Hindu male who owned self-acquired property is unable to execute a Will giving a limited estate to a wife if all other aspects including maintenance are taken care of. If we were to hold so it would imply that if the wife is disinherited under the Will it would be sustainable but if a limited estate is given it would mature into an absolute interest irrespective of the intent of the testator. That cannot be the objective, in our view. 32. The testator in the present case, Tulsi Ram, had taken all care for the needs of maintenance of his wife by ensuring that the revenue generated from the estate would go to her alone. He, however, wished to give only a limited lift interest to her as the second wife with the son inheriting the complete estate after her lifetime. We are, thus, of the view that it would be the provisions of Section 14(2) of the said Act which would come into play in such a scenario and Ram Devi only had a life interest in her favour. The natural sequittur is that the respondents cannot inherit a better title than what the vendor had and, thus, the view taken by the trial court and the first appellate court is the correct view and the sale deeds in favour of the respondents cannot be sustained. 33. On consideration of the second aspect, we must begin by stating that the sequence of litigations can hardly be said to classify the respondents as bona fide purchasers. The first endeavour was by the daughter of Ram Devi by seeking what is undoubtedly a collusive decree when she had no interest in the property. She then sought to create lease interest in the property. Both these aspects were held against Ram Devi and her daughter right till the Supreme Court in the first round of litigation clearly opining that Ram Devi had only a limited estate in the property. Despite having lost right till the Supreme Court, the sale deeds were intervening factors even during the pendency of the litigation which went against the vendor Ram Devi. 34. We may also notice that the reliance on Shakuntla Devi17 case by the High Court is misplaced as the factual scenario cannot be said to be identical. In fact the most crucial aspect was that the Will in question was dated 1.10.1935, a pre-1956 Will which is the distinguishing factor. The same factual scenario prevailed in Jupudy Pardha Sarathy18 case. We must also notice that the High Court wrongly proceeded on the basis that the first round of litigation would not create any binding precedents because there was change in law after the first round of litigation. There is, in fact, no change in law as all the judgments were much prior in time. We have already stated that the rights of the respondents are derived only from Ram Devi and once the judgment is binding on Ram Devi it cannot be said that she can create rights contrary to the judgment in favour of third parties and that too was done during the pendency of the litigation. We believe from the facts on record that the transactions in question are not only not bona fide but dubious in character to somehow deny the appellant rights conferred under the Will respondents being third parties. The repeated endeavour of Ram Devi and her daughter did not succeed earlier and cannot be permitted to succeed qua the purchasers from Ram 35. The result of the aforesaid is that the appeals are allowed and the impugned judgment of the learned single Judge of the High Court is set aside and the decree of the trial court dated 13.8.2009 as affirmed by the appellate court dated 7.10.2010 is reaffirmed. The parties are left to bear their own costs.
The Supreme Court has decided that a specific law (Section 14(1) of the Hindu Succession Act) does not stop someone from leaving a woman limited ownership of property in their will. However, if this limited ownership is given to a wife specifically for her living expenses, then that limited ownership automatically becomes full ownership under the same law. The judges, Justices Sanjay Kishan Kaul and MM Sundresh, explained that the purpose of this law (Section 14(1) of the Hindu Succession Act, 1956) cannot be to prevent a Hindu man from leaving a woman limited ownership of property he earned himself, especially if he has already made sure she has enough for her living costs in other ways. The court also mentioned that another part of the law (Section 14(2)) applies when a will gives a woman a completely new right to property. It doesn't apply if the will is just confirming a right she already had before the will was made. Background In a will from April 15, 1968, a man named Tulsi Ram left his property to his son, Jogi Ram (from his first wife), and his second wife, Ram Devi. Ram Devi was given limited ownership of her share of the land, meaning she could use it during her life. However, she couldn't sell it, give it away, or let others claim rights to it. After she died, the property was supposed to go completely to Jogi Ram. Many court cases followed this will. Eventually, a lower court (the High Court) looked at the law (Section 14 of the Hindu Succession Act). That court decided Ram Devi's limited right would become full ownership of the property. They believed this was because the will was only confirming a right she already had over the property. When Jogi Ram appealed this decision to the Supreme Court, the judges looked closely at the will. The will stated that while Ram Devi received limited ownership, Tulsi Ram had clearly said she would earn money from the property for her living needs. This meant the income from the property was for her support, not the property itself. The will also said that after Ram Devi died, Jogi Ram would get full ownership of the remaining half of the property. It further specified that if Ram Devi died before Tulsi Ram, all the properties would go entirely to Jogi Ram, and Tulsi Ram's other children would have no claim to them. What does Section 14 Hindu Succession Act say? Section 14(1) says that any property a Hindu woman owns, no matter if she got it before or after this 1956 law began, will be held by her as a full owner, not just a limited one. An explanation to this section makes it clear what "property" means. It includes things that can be moved (like jewelry) and things that cannot be moved (like land or houses). This property could be gained by a Hindu woman in many ways: through inheritance or a will, during a property division, instead of receiving living expenses (maintenance) or unpaid maintenance, as a gift from anyone, earned by her own work, bought, or claimed through long-term use. It also includes property she traditionally owned, called "stridhana," just before the law started. Section 14(2) says that Section 14(1) does not apply to property a woman receives in certain specific ways. This includes property given as a gift, through a will, or another legal document, or through a court order or settlement. This is true if the gift, will, or other document clearly states that her ownership of that property is limited. Jogi Ram, the appellant, argued that Ram Devi's lifetime ownership was not given to confirm any right she already had or as a form of support. Therefore, he believed Section 14(2) should apply, not Section 14(1). The respondents, on the other hand, argued that after this 1956 law, a Hindu woman's rights to property automatically become full ownership. They pointed to a previous Supreme Court decision (the V. Tulasamma case) to argue that Ram Devi's ownership had become full and unrestricted. The court looked at what was said in the conclusion of the V. Tulasamma case. That ruling stated: (4) Section 14(2) applies to documents, court orders, or gifts that create new ownership rights for women for the first time. It doesn't apply when a document simply confirms a right she already had. In such cases, it's legal to give a woman limited ownership, and Section 14(1) will not change that. However, if a document only declares or recognizes a pre-existing right – like her right to support or a share of property from a division – then Section 14(2) does not apply at all. In such situations, her limited ownership automatically becomes full ownership because of Section 14(1), and any limits set by the document must be ignored. Thus, if a woman gets property instead of maintenance or a share from a property division, that document falls outside Section 14(2) and is covered by Section 14(1), despite any limits placed on her ownership. Considering these past court decisions, the Supreme Court stated: "We believe the goal of Section 14(2) is very clear, as this Court has explained many times. A property owner should not be prevented from giving limited ownership to someone, including his wife, if that's what he chooses to do. But, if that limited ownership is specifically for his wife's support, then it will become full ownership under Section 14(1) of the Act." The Court also stated: 30. "In our opinion, the important part of the previous decision is paragraph 4, which explains when Section 14(2) of the Act applies. It applies, among other things, to a will that creates a new and separate ownership right for a woman for the first time, rather than just recognizing a right she already had. In such situations, it is legally allowed to give a woman limited ownership, and Section 14(1) of the Act will not change that." 31. "We should also note that the goal of Section 14(1) is to turn a wife's limited ownership into full ownership when that limited ownership came from older laws. The purpose cannot be to prevent a Hindu man, who owns property he earned himself, from writing a will that gives his wife limited ownership, especially if he has already ensured she has enough for her living costs. If we said otherwise, it would mean that if a wife was completely left out of a will, that would be valid. But if she was given limited ownership, it would always become full ownership, no matter what the person who wrote the will intended. We don't believe that's the law's aim." The court observed that Tulsi Ram, who wrote the will in this case, had made sure his wife had enough for her living needs by arranging for all the income earned from his property to go to her. "However, he wished to give her, as his second wife, only a right to use the property for her lifetime, with his son inheriting the full property after she died. Therefore, we believe that Section 14(2) of the Act applies in this situation, and Ram Devi only had the right to use the property for her life. The logical outcome is that the people who bought the property (the respondents) cannot have stronger ownership rights than Ram Devi had. So, the decision made by the initial trial court and the first appeal court was correct, and the sale documents in favor of the respondents cannot be upheld," the court said as it approved Jogi Ram's appeal.
1. The consequences of a testamentary disposition by a Will dated 15.4.1968 by one Tulsi Ram, who passed away on 17.11.1969 is still pending resolution before us after half a century. 2. The Will aforesaid bequeathed the testator’s estate to his son, the appellant herein, and his second wife Ram Devi (the first wife being deceased whose progeny is the appellant). Land measuring 175 kanals and 9 marla, a residential house and a Bara is Village Jundla, Haryana was bequeathed half and half to the appellant and Ram Devi. However, the nature of bequeath was different for the two. The appellant was given absolute ownership rights to the extent of his share of land and property whereas Ram Devi was given a limited ownership for her enjoyment during her lifetime with respect to her share of the land with a specific provision that she could not alienate, transfer or create third party rights over the same. Thereafter the property was to vest absolutely in the appellant after her lifetime. 3. It appears that the properties were enjoyed as per the Will after the demise of Tulsi Ram in 1969 for quite a few years till the first round of litigation began – Bimla Devi, daughter of Ram Devi instituted a suit in the Court of Sub Judge 1st Class, Karnal for declaration against her mother, Ram Devi, claiming that she had become owner in possession of half share of the land willed to Ram Devi by Tulsi Ram, which resulted in a decree being passed on 15.1.1986. It may be stated at this stage itself that by very nature the suit was collusive. On the decree being passed Bimla Devi executed a lease deed in favour of one Amar Singh on 17.6.1986 in respect of land falling within Ram Devi’s limited share. This prompted the appellant to file a Civil Suit No.94/1993 for declaration and permanent injunction before the Senior Sub Judge, Karnal impleading Ram Devi, Bimla Devi and Amar Singh. The gravamen of the suit was that Ram Devi having only a limited life interest the decree of declaration by Bimla Devi had been obtained through collusion and the lease deed was a bogus document which would not have any effect upon the rights of the appellant to inherit the property after the demise of Ram Devi. The suit was, however, contested only by Ram Devi with the other two defendants being proceeded ex parte. The suit resulted in a judgment and decree dated 27.9.1995 to the effect that the appellant having proved the Will executed by Tulsi Ram, the case clearly fell under Section 14(2) of the Hindu Succession Act, 1956 (hereinafter referred to as the ‘said Act’) which was in the nature of an exception as it precluded the benefits of Section 14(1) of the said Act to accrue with respect of a property inter alia inherited under a Will with a restricted right in such a property. Thus, it was concluded that the limited estate of Ram Devi could not be expanded to an absolute estate and the decree of the Civil Court dated 15.1.1986 and the lease deed dated 17.6.1986 were consequently set aside. 4. It may be noted that even though the suit was pending in the interregnum period Ram Devi executed two sale deeds dated 29.4.1993 qua land measuring 38 kanals 14 marlas in favour of one Dharam Singh and 11 kanals 3 marlas in favour of Kanta Devi. Another sale deed was subsequently executed on 8/9.6.1998 in favour of Baldeva for land measuring 40 kanals 8 marlas. All these were part of the suit land. The latter was during the pendency of the appeal by Ram Devi before the Additional District Judge, Karnal which appeal was also finally dismissed vide judgment dated 15.4.1999. Insofar as the appeal qua Baldeva was concerned, that was also dismissed due to inability of Ram Devi to serve notice on Baldeva despite sufficient opportunity. In the third round of the same litigation Ram Devi’s second appeal under Section 41 of the Punjab Courts Act, 1918 (hereinafter referred to as the ‘PC Act’) also met the same fate vide judgment dated 23.10.2001 in RSA No.1700/1999. The whole matter ought to have received a quietus thereafter as the Special Leave Petition was also dismissed vide order dated 29.4.2002. It may be noticed that in the interregnum period Ram Devi also passed away on 26.8.1999. This is as far as the story of the first round of litigation. 5. The second round of litigation began when the appellant instituted a Civil Suit No.256/157 of 2008 before the Civil Judge, SD, Karnal for declaration and injunction challenging the sale deeds executed by Ram Devi. This suit was also decreed vide judgment and decree dated 13.8.2009 in favour of the appellant. 6. Once again the gravamen of the decision of the learned Civil Judge was the earlier judgment and decree dated 27.9.1995 opining that Ram Devi had only a limited ownership right and could not have alienated the suit property. There being no change in law, the previous decree in favour of the appellant was held binding among the parties and their successors-in-interest. The sale deeds executed, thus, found to be unsustainable being against the decree of the lower court. Once again, opinion was the same as to the construction of Sections14(1) and 14(2) of the said Act as any contrary interpretation would tantamount to proscribing the right of a Hindu to execute a Will as envisaged under Section 30 of the said Act. The court granted a decree of possession to the appellant being the rightful owner of the same. The court also noted that the title of the purchasers could not be better titled than Ram Devi possessed as they had acquired their rights from her and could not even be considered bona fide purchasers for value in view of the history of the 7. Kanta Devi, legal heirs of Baldev and Dharam Singh then preferred an appeal against the said judgment dated 13.8.2009, which was dismissed vide judgment dated 7.10.2010 in Civil Appeal No.56/2009. That gave rise to the second appeal before the High Court, being RSA No.210/2011. 8. The respondents pleaded before the High Court by relying upon the judgment of this Court in V. Tulasamma & Ors. v. Sesha Reddy (Dead) by LRs.1 to contend that Ram Devi’s right over the suit property granted under the Will had crystallised into an absolute ownership right making her competent to transfer the same. The subsequent judgment of this Court in Jupudy Pardha Sarathy v. Pentapati Rama Krishna & Ors.2 was also referred to in support of the said proposition. The decree in the first round of litigation was contended not to operate as res judicata in the second suit as the judgment in the earlier suit was contrary to the law prevailing at the time of their consideration (Shakuntla Devi v. Kamla & Ors.3 which referred to Mathura Prasad Bajoo & Ors. v. Dossibai N.B. Jeejebhoy4). Without prejudice to the same the respondents also claimed to be bona fide purchasers for value and, thus, were protected under Section 41 of the Transfer of Property Act, 1882 (hereinafter referred to as the ‘TP Act’). 9. On the other hand the appellant contended that the doctrine of res judicata would apply in view of the earlier adjudication as the matter of Ram Devi having a limited estate has been upheld right till the Supreme Court. The appellant had also taken possession of the suit property and execution of the judgments was under challenge before the High Court. 10. The fate of the respondents after the amendment turned favourable as they succeeded before the High Court in terms of the impugned judgment dated 22.2.2018. The discussion in the impugned judgment (a) Whether the first round of litigation operate as res judicata for the appeal. (b) Whether Ram Devi’s limited right over the suit property conferred through the Will had crystallised into an absolute right under Section 14(1) of the said Act. (c) Whether the High Court was mandated to frame a substantial question of law in deciding the second appeal. 11. On the first aspect the High Court found that the factual scenario and legal principles enunciated in Shakuntla Devi5 case would be squarely applicable to the facts of the present case. In the factual scenario of that case, one Uttamdasi was the successor of the suit property and had alienated the same through a sale deed and gift deed. The daughter of Uttamdasi, Takami, successfully challenged the alienation and the decree became final. Uttamdasi thereafter executed a Will with respect to the same suit property. Tikami instituted a suit for possession on the basis of a previous declaratory decree wherein she had been held to have ownership right of the property. This Court opined that the case would constitute as a principle of res judicata. The first declaratory decree in favour of Tikami was granted on the basis of a limited right held by Uttamdasi in the suit property. By the time the second decree was tried, the Supreme Court in V. Tulasamma & Ors.6 case had declared the law under Section 14 of the said Act to the extent that the beneficiary under a Will such as Uttamdasi with limited rights would become the absolute owner of the same. Since the law had been altered since the first declaratory decree, the same would not operate as res judicata in a decree for possession. The judgment in V. Tulasamma & Ors.7 case was not retrospective but a declaratory decree simpliciter would not attain finality if it is used in a future decree of possession and it would be open for a defendant in a future suit for possession to establish that the earlier declaratory decree was not lawful. Thus, the respondents were held entitled to challenge the appellant’s possession of the suit property. 12. On the second aspect the High Court has taken a view that V. Tulasamma & Ors.8 case had sufficiently resolved any uncertainty under Sections 14(1) & 14(2) of the said Act. A Hindu female has a right to maintenance on a property if a charge was created for her maintenance, the right would become legally enforceable irrespective, even without a charge, the claim for maintenance was a pre-existing right so that any transfer declaring such right would not confer a new title but merely confirm pre-existing rights and Section 14(2) of the said Act cannot be interpreted in a manner that would dilute Sections 14(1) and 14(2) of the said Act. Only in a scenario where the instrument created a new title in favour of the wife for the first time, would Section 14(2) would come into play and not where there was a pre-existing right. Ram Devi was held to have been conferred with a limited right which would translate into an absolute right over the suit property as it was only a confirmation of the pre-existing right over the property. 13. On the last aspect it was held that in view of the decision of this Court in Pankajakshi (dead) through LRs & Ors. v. Chandrika & Ors.9, the High Court was not required to frame a substantial question of law while deciding the plea as Section 97(1) of the Code of Civil Procedure, 1908 (hereinafter referred to as the ‘said Code’) would have no applicability to the PC Act. 14. On the appellant approaching this Court notice was issued in the SLP on 4.7.2018 with the direction to maintain status quo as on the date as the appellant had already taken over possession in the execution of the decree. Leave was granted on 4.2.2019 and the interim order made absolute. 15. In the conspectus of the aforesaid, the matter was heard by us. 16. In order to appreciate the provisions of the said Act, it may be appropriate to reproduce Section 14 of the said Act as under: “14. Property of a female Hindu to be her absolute (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Explanation.—In this sub-section, “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act. (2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.” 17. There is no doubt that Section 14 of the said Act is the part of the said Act to give rights of a property to a Hindu female and was a progressive step. Sub-Section (1) of Section 14 of the said Act makes it clear that it applies to properties acquired before or after the commencement of the said Act. Any property so possessed was to be held by her as full owner thereof and not as a limited owner. The Explanation to sub-Section (1) of Section 14 of the said Act defines the meaning of “property” in this sub-section to include both movable and immovable property acquired by the female Hindu by inheritance or devise or a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, or by her skill or exertion, or by purchase or by prescription or in any other manner whatsoever, including stridhana. The Explanation is quite expansive. 18. Sub-Section (2) of Section 14 of the said Act is in the nature of a proviso. It begins with a ‘non-obstante clause’. Thus, it says that “nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court....” etc. where a restricted estate in such property is prescribed. In our view the objective of sub-Section (2) above is quite clear as enunciated repeatedly by this Court in various judicial pronouncements, i.e., there cannot be a fetter in a owner of a property to give a limited estate if he so chooses to do including to his wife but of course if the limited estate is to the wife for her maintenance that would mature in an absolute estate under Section 14(1) of the said 19. Before considering the submissions it would be appropriate to turn to the Will itself. The Will while conferring a limited estate on Ram Devi, Tulsi Ram had clearly stated that she will earn income from the property for her livelihood. The income, thus, generated from the property is what has been given for maintenance and not the property itself. The next clarification is that after the lifetime of Ram Devi, the appellant will get the ownership of the remaining half portion also. It is specified that in case Ram Devi pre-deceases Tulsi Ram, then all the properties would go absolutely to the appellant and that the other children will have no interest in the property. We may note that Tulsi Ram had six children. One son and four daughters are from the first wife and Bimla Devi was the daughter from the second wife. At the stage when the Will was executed one of the daughters was unmarried and the Will also provided that in case for performing the marriage Ram Devi needs money she will have the right to mortgage the property and earn money from the same and will further have the right to gain income even prior to the marriage. 20. We have set forth the terms and conditions of the Will to understand the intent of the testator. The testator is, at least, clear in terms that the income derived from the property is what is given to the second wife as maintenance while insofar as the properties are concerned, they are divided half and half with the appellant having an absolute share and the wife having a limited estate which after her lifetime was to convert into an absolute estate of the appellant. 21. Now turning to the submissions of the learned counsel for the parties. 22. Learned counsel for the appellant contended that the life estate was not given to Ram Devi in lieu of recognition of any pre-existing right of Ram Devi or in lieu of maintenance and, thus, Section 14(2) of the said Act would apply and not Section 14(1) of the said Act. The plea of res judicata was again reiterated. It was urged that the High Court proceeded on an erroneous premise as if the law had changed from the first round of litigation while the fact was that the law was the same at both stages of time. The distinction which was sought to be made was that Shakuntla Devi10 case was wrongly relied upon as the Will in that case was dated 1.10.1935 and it was, thus, a pre-1956 Will and, thus, that judgment was not precedent for factual scenario in question. The suit property was a self-acquired property of Tulsi Ram and, thus, he was competent to execute the Will. 23. We may note that learned counsel for the appellant did seek to contend that since possession of the property was taken over by the appellant and Ram Devi was not in possession thereof, she cannot claim the benefit of Section 14(1) of the said Act (Sadhu Singh v. Gurudwara Sahib Narike & Ors.11 and Gaddam Ramakrishna Reddy & Ors. v. Gaddam Ramireddy & Ors.12). We may, however, note that in our perspective that is not a material consideration as the possession is stated to have been taken over in pursuance of the decree of the trial court. 24. On behalf of the respondents it was, once again, emphasised that the factual scenario was similar to Shakuntla Devi13 case and the rights of a female Hindu post the said Act have been crystallised and enunciated in V. Tulasamma & Ors.14 case since she was an absolute owner she was entitled to sell the land and the respondents were bona fide buyers who were protected by Section 41 of the TP Act. Further no substantial question of law was required to be framed in view of the Constitution Bench judgment of the Supreme Court in Pankajakshi (dead) through LRs & Ors.15 case. 25. We have extracted the relevant portions of the enactment, the document in question being the Will and have already opined on the interpretation of the Will. The submissions of the learned counsel for the parties have, thus, to be appreciated in the conspectus of the same. 26. We do believe that there are only two real aspects to be examined in the present case as the issue of even framing a question of law stands settled. The two aspects, in our view are as under: i. In the given factual scenario did Ram Devi become the absolute owner of the property in view of Section 14(1) of the said Act or in view of the Will the Explanation under Section 14(2) would apply. ii. What is the effect of the first round of litigation which came up to this Court between the appellant and Ram Devi, the two beneficiaries of the Will. 27. We are of the view that both these questions have to be answered in favour of the appellant and for that reason the impugned judgment is unsustainable. 28. We would first like to turn to the seminal judgment in V. Tulasamma & Ors.16 case. In para 20 the propositions emerging in respect of incidents and characteristics of a Hindu woman’s right to maintenance have been crystallised as under: “20. Thus on a careful consideration and detailed analysis of the authorities mentioned above and the Shastric Hindu Law on the subject, the following propositions emerge with respect to the incidents and characteristics of a Hindu woman's right to (1) that a Hindu woman's right to maintenance is a personal obligation so far as the husband is' concerned, and it is his duty to maintain her even if he has no property. If the husband has property then the right of the widow to maintenance becomes an equitable charge on his property and any person who succeeds to the property carries with it the legal obligation to maintain the widow; (2) though the widow's right to maintenance is not a right to property but it is undoubtedly pre-existing right in property, i.e. it is a jus ad rem not jus in rem and it can be enforced by the widow who can get a charge created for her maintenance on the property either by an agreement or by obtaining a (3) that the right of maintenance is a matter of moment and is of such importance that even if the joint property is sold and the purchaser has notice of the widow's right to maintenance, the purchaser is legally bound to provide for (4) that the right to maintenance is undoubtedly a pre- existing right which existed in the Hindu Law long before the passing of the Act of 1937 or the Act of 1946, and is, (5) that the right to maintenance flows from the social and temporal relationship between the husband and the wife by virtue of which the wife becomes a sort (I.L.R. 27 Mad. 45. (2) I.L.R. 18 Bom. 452) of co-owner in the property of her husband, though her co-ownership is of a subordinate (6) that where a Hindu widow is in possession of the property of her husband, she is entitled to retain the possession in lieu of her maintenance unless the person who succeeds to the property or purchases the same is in a position to make due arrangements for her maintenance.” 29. In the light of the aforesaid passage, Sections 14(1) & 14(2) of the said Act were entered by the Court. The word “possessed” was held to be used in a wide sense not requiring a Hindu woman to be an actual or physical possession of the property and it would suffice if she has a right in the property. The discussion in para 33 thereafter opines that the intention of the Parliament was to confine sub-section (2) of Section 14 of the said Act only to two transactions, viz., a gift and a will, which clearly would not include property received by a Hindu female in lieu of maintenance or at a partition. The intention of the Parliament in adding the other categories to sub-section (2) was merely to ensure that any transaction under which a Hindu female gets a new or independent title under any of the modes mentioned in Section 14(2) of the said Act. The conclusions were thereafter set forth in para 62 of the judgment as under: “62. We would now like to summarise the legal conclusions which we have reached after an exhaustive considerations of the authorities mentioned above; on the question of law involved in this appeal as to the interpretation of s. 14(1) and (2) of the Act of 1956. These conclusions may be stated thus: (1) The Hindu female's right to maintenance is not an empty formality or an illusory claim being conceded as a matter of grace and generosity, but is a tangible right against property which flows from the spiritual relationship between the husband and the wife and is recognised and enjoined by pure Shastric Hindu Law and has been strongly stressed even by the earlier Hindu jurists starting from Yajnavalkya to Manu. Such a right may not be a right to property but it is a right against property and the husband has a personal obligation to maintain his wife and if he or the family has property, the female has the legal right to be maintained therefrom. If a charge is created for the maintenance of a female, the said right becomes a legally enforceable one. At any rate, even without a charge the claim for maintenance is doubtless a pre-existing right so that any transfer declaring or recognising such a right does not confer any new title but merely endorses or confirms the pre-existing rights. (2) Section 14(1) and the Explanation thereto have been couched in the widest possible terms. And must be liberally construed in favour of the females so as to advance the object of the 1956 Act and promote the socio-economic ends, sought to be achieved by this long needed legislation. (3) Sub-section (2) of s. 14 is in the nature of a proviso and has a field of its own without interfering with the operation of s. 14(1) materially. The proviso should not be construed in a manner so as to destroy the effect of the main provision or the protection granted by s. 14(1) or in a way so as to become totally inconsistent with the main provision. (4) Sub-section (2) of s. 14 applies to instruments, decrees, awards, gifts etc. which create independent and new titles in favour of the females for the first time and has no application where the instrument concerned merely seeks to confirm, endorse, declare or recognise pre-existing rights. In such cases a restricted estate in favour of a female is legally permissible and s. 14(1) will not operate in this sphere. Where, however, an instrument merely declares or recognises a pre-existing right, such as a claim to maintenance or partition or share to which the female is entitled, the sub-section has absolutely no application and the female's limited interest would automatically be enlarged into an absolute one by force of s. 14(1) and the restrictions placed, if any, under the document would have to be ignored. Thus where a property is allotted or transferred to a female in lieu of maintenance or a share at partition, the instrument is taken out of the ambit of sub- s. (2) and would be governed by s. 14(1) despite any restrictions placed on the powers of the transferee. (5) The use of express terms like "property acquired by a female Hindu at a partition", "or in lieu of maintenance" "or arrears of maintenance" etc. in the Explanation to s. 14(1) clearly makes sub-s. (2) inapplicable to these categories which have been expressly excepted from the operation of (6) The words "possessed by" used by the Legislature in s. 14(1) are of the widest possible amplitude and include the state of owning a property even though the owner is not in actual or physical possession of the same: Thus, where a widow gets a share in the property under a preliminary decree before or at the time when the 1956 Act had been passed but had not been given actual possession under a final decree, the property would be deemed to be possessed by her and by force of s. 14(1) she would get absolute interest. in the property. It is equally well settled that the possession of the widow, however, must be under some vestige of a claim, right or title, because the section does not contemplate the possession of any rank trespasser without any right or title. (7) That the words "restricted estate" used in s. 4(2) are wider than limited interest as indicated in s.14(1) and they include not only limited interest, but also any other kind of limitation that may be placed on the transferee.” 30. In our view the relevant aspect of the aforesaid conclusion is para 4 which opines where sub-section (2) of Section 14 of the said Act would apply and this does inter alia applies to a Will which may create independent and new title in favour of females for the first time and is not a recognition of a pre-existing right. In such cases of a restricted estate in favour of a female is legally permissible and Section 14(1) of the said Act will not operate in that sphere. 31. We may add here that the objective of Section 14(1) is to create an absolute interest in case of a limited interest of the wife where such limited estate owes its origin to law as it stood then. The objective cannot be that a Hindu male who owned self-acquired property is unable to execute a Will giving a limited estate to a wife if all other aspects including maintenance are taken care of. If we were to hold so it would imply that if the wife is disinherited under the Will it would be sustainable but if a limited estate is given it would mature into an absolute interest irrespective of the intent of the testator. That cannot be the objective, in our view. 32. The testator in the present case, Tulsi Ram, had taken all care for the needs of maintenance of his wife by ensuring that the revenue generated from the estate would go to her alone. He, however, wished to give only a limited lift interest to her as the second wife with the son inheriting the complete estate after her lifetime. We are, thus, of the view that it would be the provisions of Section 14(2) of the said Act which would come into play in such a scenario and Ram Devi only had a life interest in her favour. The natural sequittur is that the respondents cannot inherit a better title than what the vendor had and, thus, the view taken by the trial court and the first appellate court is the correct view and the sale deeds in favour of the respondents cannot be sustained. 33. On consideration of the second aspect, we must begin by stating that the sequence of litigations can hardly be said to classify the respondents as bona fide purchasers. The first endeavour was by the daughter of Ram Devi by seeking what is undoubtedly a collusive decree when she had no interest in the property. She then sought to create lease interest in the property. Both these aspects were held against Ram Devi and her daughter right till the Supreme Court in the first round of litigation clearly opining that Ram Devi had only a limited estate in the property. Despite having lost right till the Supreme Court, the sale deeds were intervening factors even during the pendency of the litigation which went against the vendor Ram Devi. 34. We may also notice that the reliance on Shakuntla Devi17 case by the High Court is misplaced as the factual scenario cannot be said to be identical. In fact the most crucial aspect was that the Will in question was dated 1.10.1935, a pre-1956 Will which is the distinguishing factor. The same factual scenario prevailed in Jupudy Pardha Sarathy18 case. We must also notice that the High Court wrongly proceeded on the basis that the first round of litigation would not create any binding precedents because there was change in law after the first round of litigation. There is, in fact, no change in law as all the judgments were much prior in time. We have already stated that the rights of the respondents are derived only from Ram Devi and once the judgment is binding on Ram Devi it cannot be said that she can create rights contrary to the judgment in favour of third parties and that too was done during the pendency of the litigation. We believe from the facts on record that the transactions in question are not only not bona fide but dubious in character to somehow deny the appellant rights conferred under the Will respondents being third parties. The repeated endeavour of Ram Devi and her daughter did not succeed earlier and cannot be permitted to succeed qua the purchasers from Ram 35. The result of the aforesaid is that the appeals are allowed and the impugned judgment of the learned single Judge of the High Court is set aside and the decree of the trial court dated 13.8.2009 as affirmed by the appellate court dated 7.10.2010 is reaffirmed. The parties are left to bear their own costs.
The Supreme Court has decided that a specific law (Section 14(1) of the Hindu Succession Act) does not stop someone from leaving a woman limited ownership of property in their will. However, if this limited ownership is given to a wife specifically for her living expenses, then that limited ownership automatically becomes full ownership under the same law. The judges, Justices Sanjay Kishan Kaul and MM Sundresh, explained that the purpose of this law (Section 14(1) of the Hindu Succession Act, 1956) cannot be to prevent a Hindu man from leaving a woman limited ownership of property he earned himself, especially if he has already made sure she has enough for her living costs in other ways. The court also mentioned that another part of the law (Section 14(2)) applies when a will gives a woman a completely new right to property. It doesn't apply if the will is just confirming a right she already had before the will was made. Background In a will from April 15, 1968, a man named Tulsi Ram left his property to his son, Jogi Ram (from his first wife), and his second wife, Ram Devi. Ram Devi was given limited ownership of her share of the land, meaning she could use it during her life. However, she couldn't sell it, give it away, or let others claim rights to it. After she died, the property was supposed to go completely to Jogi Ram. Many court cases followed this will. Eventually, a lower court (the High Court) looked at the law (Section 14 of the Hindu Succession Act). That court decided Ram Devi's limited right would become full ownership of the property. They believed this was because the will was only confirming a right she already had over the property. When Jogi Ram appealed this decision to the Supreme Court, the judges looked closely at the will. The will stated that while Ram Devi received limited ownership, Tulsi Ram had clearly said she would earn money from the property for her living needs. This meant the income from the property was for her support, not the property itself. The will also said that after Ram Devi died, Jogi Ram would get full ownership of the remaining half of the property. It further specified that if Ram Devi died before Tulsi Ram, all the properties would go entirely to Jogi Ram, and Tulsi Ram's other children would have no claim to them. What does Section 14 Hindu Succession Act say? Section 14(1) says that any property a Hindu woman owns, no matter if she got it before or after this 1956 law began, will be held by her as a full owner, not just a limited one. An explanation to this section makes it clear what "property" means. It includes things that can be moved (like jewelry) and things that cannot be moved (like land or houses). This property could be gained by a Hindu woman in many ways: through inheritance or a will, during a property division, instead of receiving living expenses (maintenance) or unpaid maintenance, as a gift from anyone, earned by her own work, bought, or claimed through long-term use. It also includes property she traditionally owned, called "stridhana," just before the law started. Section 14(2) says that Section 14(1) does not apply to property a woman receives in certain specific ways. This includes property given as a gift, through a will, or another legal document, or through a court order or settlement. This is true if the gift, will, or other document clearly states that her ownership of that property is limited. Jogi Ram, the appellant, argued that Ram Devi's lifetime ownership was not given to confirm any right she already had or as a form of support. Therefore, he believed Section 14(2) should apply, not Section 14(1). The respondents, on the other hand, argued that after this 1956 law, a Hindu woman's rights to property automatically become full ownership. They pointed to a previous Supreme Court decision (the V. Tulasamma case) to argue that Ram Devi's ownership had become full and unrestricted. The court looked at what was said in the conclusion of the V. Tulasamma case. That ruling stated: (4) Section 14(2) applies to documents, court orders, or gifts that create new ownership rights for women for the first time. It doesn't apply when a document simply confirms a right she already had. In such cases, it's legal to give a woman limited ownership, and Section 14(1) will not change that. However, if a document only declares or recognizes a pre-existing right – like her right to support or a share of property from a division – then Section 14(2) does not apply at all. In such situations, her limited ownership automatically becomes full ownership because of Section 14(1), and any limits set by the document must be ignored. Thus, if a woman gets property instead of maintenance or a share from a property division, that document falls outside Section 14(2) and is covered by Section 14(1), despite any limits placed on her ownership. Considering these past court decisions, the Supreme Court stated: "We believe the goal of Section 14(2) is very clear, as this Court has explained many times. A property owner should not be prevented from giving limited ownership to someone, including his wife, if that's what he chooses to do. But, if that limited ownership is specifically for his wife's support, then it will become full ownership under Section 14(1) of the Act." The Court also stated: 30. "In our opinion, the important part of the previous decision is paragraph 4, which explains when Section 14(2) of the Act applies. It applies, among other things, to a will that creates a new and separate ownership right for a woman for the first time, rather than just recognizing a right she already had. In such situations, it is legally allowed to give a woman limited ownership, and Section 14(1) of the Act will not change that." 31. "We should also note that the goal of Section 14(1) is to turn a wife's limited ownership into full ownership when that limited ownership came from older laws. The purpose cannot be to prevent a Hindu man, who owns property he earned himself, from writing a will that gives his wife limited ownership, especially if he has already ensured she has enough for her living costs. If we said otherwise, it would mean that if a wife was completely left out of a will, that would be valid. But if she was given limited ownership, it would always become full ownership, no matter what the person who wrote the will intended. We don't believe that's the law's aim." The court observed that Tulsi Ram, who wrote the will in this case, had made sure his wife had enough for her living needs by arranging for all the income earned from his property to go to her. "However, he wished to give her, as his second wife, only a right to use the property for her lifetime, with his son inheriting the full property after she died. Therefore, we believe that Section 14(2) of the Act applies in this situation, and Ram Devi only had the right to use the property for her life. The logical outcome is that the people who bought the property (the respondents) cannot have stronger ownership rights than Ram Devi had. So, the decision made by the initial trial court and the first appeal court was correct, and the sale documents in favor of the respondents cannot be upheld," the court said as it approved Jogi Ram's appeal.
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The State by C.I.D. filed this petition under Section 482 of the Code of Criminal Procedure Code, 1973 (for short, ‘Cr.P.C.’) being aggrieved by the order dated 8-8-2016 passed by the Principal District and Sessions Judge, Mysuru, (hereinafter referred to as ‘Trial Court’) in Crime No.116 of 2013 for having rejected the charge-sheet filed by the Police Inspector, Financial and Vigilance Unit, C.I.D., Bengaluru. 2. The petitioner-State is the complainant and the respondents are the accused before the Trial Court. The ranks of the parties before the Trial Court are retained for the sake of convenience. 3. The case of the prosecution is that, accused No.1 is the Greenbuds Agro Farms Limited Company and accused Nos.2 to 5 are the Managing Directors and Directors of the said Company. It is alleged that, they have collected investments from the general public and cheated the public up to Rs.12,95,13,433/-. The individual investors have filed complaints before different Police Stations in Mysuru District. The State Government, by its order, appointed the jurisdictional Assistant Commissioner as Competent Authority for the purpose of taking action against the accused under Section 5 of the Karnataka Protection of Interest of Depositors in Financial Establishments Act, 2004 (hereinafter referred to as ‘Act’). Accordingly, investigation has been done and a common charge-sheet came to be filed by the Police Inspector, Financial and Vigilance Unit, C.I.D., before the Trial Court. The Trial Court, by its impugned order, rejected the charge-sheet filed under the Act on the ground that the Police Inspector is not the Competent Officer to file the report or for taking action and hence, the accused were discharged for the offence punishable under Section 9 of the Act. However, liberty was granted to the Investigating Officer to file charge-sheet before the jurisdictional Magistrate for the offences punishable under the Indian Penal Code, 1860 (for short, ‘IPC’), which is under challenge before this Court. 4. Heard the arguments of the learned State Public Prosecutor-I for the petitioner-State and perused the records. Learned counsel for the respondents-accused remained absent in spite of granting sufficient opportunities by way of 5. Previously, this Court dismissed the petition on 12- 6-2020 and later, restored the same on 1-10-2020. At that time, the learned counsel for the respondents appeared and submitted no objection to recall the order. Accordingly, I.A. No.1 of 2020 was allowed and the petition was restored by recalling the order of dismissal. 6. The learned State Public Prosecutor-I has contended that as per Section 4 of the Cr.P.C., the Special Court established under the Act is having power to try the offences punishable under the IPC as well as the offences punishable under the Special Law, but the Trial Court misread Section 5 of the Act and committed error in discharging the accused, even though liberty was granted for filing charge-sheet before the Magistrate by ignoring the special provisions of law. Even if the charge-sheet is returned, the question of discharging the accused is illegal. Hence, he prayed for setting aside the 7. Admittedly, the accused were involved in cheating of depositors, who invested in their Company and they were many complaints filed by the individual investors in different Police Stations of Mysuru District for the offences punishable both under Section IPC, especially Section 420 of the IPC, and Section 9 of the Act. In view of the order of the Government, the Assistant Commissioner was appointed as per Section 5 of the Act for making enquiry and to file report. However, the said report of the Assistant Commissioner, who is a Competent Authority, required to deal with the investments of the Company or other property believed to have been acquired from out of the deposits and to attach the said investments under Section 3 of the Act and to protect the interest of the investors in accordance with the procedure laid down in the Special Act. Section 9 of the Act prescribes punishment for the offence committed by the Company which is liable for punishment of both imprisonment as well as fine. As per Section 18 of the Act, the Cr.P.C. is applicable and the Special Court shall follow the procedure specified in the Cr.P.C. for the trial of warrant cases by the Magistrate, which is nothing but a Judicial Magistrate, First Class or Metropolitan Magistrate. Once the complaint is lodged against the Company for cheating the investors as per Section 154 of the Cr.P.C. before the Police and once the case is registered, the Investigating Officer is required to file charge-sheet against the offenders as per Section 173 of the Cr.P.C. The Special Court has been established for trying the offences committed under Section 10 of the Act. Therefore, the Investigating Officer is required to file charge-sheet before the Special Court established under the Act. 8. As per Section 4(2) of the Cr.P.C., all offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. Such being the case, bifurcating the offences punishable under IPC and Special Law is not correct. Both the offences are required to be tried together by the Special Court established under 9. Though the Trial Court rightly refused to accept the charge-sheet, but committed error in discharging the accused and directing the Investigating Officer to file charge-sheet before the jurisdictional Magistrate. Once the Special Court is established, the question of discharging the accused for the reasons that the charge-sheet is filed by incompetent Investigating Officer does not arise. The Trial Court misread the provisions of Special Act and has not considered Section 4 of the Cr.P.C. 10. The Investigating Officer committed mistake in filing common charge-sheet for the various crime registered in different Police Stations which is impermissible. In this regard, the Division Bench of the Delhi High Court in the case of STATE v. KHIMJI BHAI JADEJA (Crl. Ref. No.1 of 2014 dated 8-7-2019) has considered the judgments of various High Courts as well as Supreme Court and held that filing an amalgamated charge-sheet is impermissible. At paragraph “76. From Chapter XII of the Cr.P.C., it is evident that upon disclosure of information in relation to commission of a cognizable offence, the police is bound to register the FIR. The registration of FIR sets into motion the process of investigation. The same culminates into the filing of the final report by the police officer before the Magistrate. Thus, in respect of every FIR, there would be a separate final report and, there could be, further report(s) in terms of Section 173(8). 80. Thus, our answer to question (b) is that in respect of each FIR, a separate final report [and wherever necessary supplementary/ further charge sheet(s)] have to be filed, and there is no question of amalgamation of the final reports that may be filed in respect of different FIRs. The amalgamation, strictly in terms of Section 219 Cr.P.C., would be considered by the Court/ Magistrate at the stage of framing of charge, since Section 219(1) mandates that where the requirements set out in the said Section are met, the accused "may be charged with, and tried at one trial for, any number of them not exceeding three".” 11. I am in respectful agreement with the view taken by the Division Bench of the Delhi High Court. On perusal of the judgment stated supra, it is clear that, the offences which are similar in nature committed by the same accused within twelve months can be tried together by framing a common charge as per Section 219 of the Cr.P.C., but the question of filing common charge-sheet in multiple crimes or complaints is impermissible. 12. In a similar provisions of the Special Act, at Tamil Nadu, the Madras High Court in an unreported judgment in the case of P.S. CHELLAMUTHU AND OTHERS v. THE ANOTHER in Crl.O.P. Nos.21711 and 35339 of 2007 dated 4-12-2008 has considered the similar Special Act namely, Tamil Nadu Protection of interests of Depositors (in Financial Establishments) Act, 1997, wherein it has held that in respect of trying the offences by the Special Court and taking cognizance, the Cr.P.C. would apply. 13. Similarly, in the Special Act, Section 18 of the Act empowers the Special Court for taking cognizance, trying the accused person by following the procedures specified in the Cr.P.C. The first conviction shall be punishable with imprisonment for a term which may extend to six years with fine and which may be extend to Rs.1.00 lakh and proviso to Section 9 of the Act prescribes that the imprisonment shall not be less than three years in the absence of special and adequate reasons. Part 2 of Schedule-I of the Cr.P.C. prescribes the classification of offences against other laws. If the offence punishable for three years and upwards, but not more than seven years, the offence is cognizable and bailable. The Special Act is silent about offence under the present Act is whether cognizable or non-cognizable. Thereby, the Cr.P.C. is applicable. As per part 2 of Schedule I of the Cr.P.C., the offence under Section 9 is cognizable and non- bailable. That apart, as per Section 18(2) of the Act, the anticipatory bail is applicable, which shows that the offences are non-bailable. Such being the case, the Trial Court came to wrong conclusion that as per Section 5 of the Act, the Police Officer was incompetent to file the charge-sheet. Filing the report by the Competent Authority to the Government is different aspect in respect of returning the money to the investors and protecting the investment made by the accused Company out of the investors’ amount. So far as punishment in criminal cases is concerned, the Police or Special Police have power to file final report before the Special Court. However, the question of filing common charge-sheet for various complaints filed by the individual investors in different Police Station limits is against the law and the question of filing amalgamated charge-sheet does not arise and it is impermissible under the Cr.P.C. 14. Therefore, the State-C.I.D. Police have no authority to file common charge-sheet in different complaints. However, the Investigating Officer has to file separate charge- sheet against each crime registered by the Police on individual complaint. Thereafter, the Special Court shall take cognizance of the offences both punishable under the IPC and the Special Act by following the Cr.P.C. and dispose of the matter in accordance with law. So far as on the report of the Competent Authority, it has to be submitted to the State Government and later, the Trial Court on the report of the Competent Officer to attach or seize the properties and investments under Section 3 of the Act for the purpose of protecting the interests and refunding the money to the investors as per Section 12 of the Act. 15. For the reasons stated above, the Trial Court committed error in rejecting the charge-sheet on the ground that the Investigating Officer is not the Competent Authority to file the charge-sheet and wrongly discharged the accused for the offence punishable under Section 9 of the Act and also committed error in directing the Investigating Officer to file the charge-sheet before the jurisdictional Magistrate in respect of the offences punishable under the IPC. Therefore, the impugned order requires to be quashed. 16. Accordingly, the petition is allowed. The order dated 8-8-2016 passed by the Principal District and Sessions Judge, Mysuru, in Crime No.116 of 2013 is hereby quashed. Discharging the accused is hereby set aside. 17. Further, the Special Court is directed to return the charge-sheet to the Investigating Officer in order to file separate charge-sheet in respect of the each individual complaints and thereafter, the Trial Court shall proceed in accordance with law. Registry to intimate the Trial Court forthwith.
The Karnataka High Court has stated that it is against the law to file one main report (called a charge-sheet) that combines many complaints from different investors against the same accused person, especially if these complaints came from various police stations. This type of combined charge-sheet is not allowed under the Criminal Procedure Code (CrPC), which sets out how criminal cases should be handled. Justice K Natarajan, sitting as a single judge, ruled that the state police (C.I.D.) do not have the power to combine different complaints into one charge-sheet. Instead, the officer investigating the case must create a separate charge-sheet for each individual crime that the police have officially recorded based on a person's complaint. After this, a special court will officially recognize these crimes, which can fall under both general laws (like the Indian Penal Code) and specific laws (Special Act). The court will then deal with these cases by following the CrPC and make a decision according to the law. The court based its decision on a previous ruling from the Delhi High Court. This ruling came from the case of STATE v. KHIMJI BHAI JADEJA and had reviewed decisions from various other High Courts and the Supreme Court. That ruling also concluded that filing a combined charge-sheet is not allowed. The court explained that similar crimes committed by the same accused person within a twelve-month period can be tried together by creating a single main accusation, as allowed by Section 219 of the CrPC. However, this is different from filing one combined charge-sheet for many separate crimes or complaints, which is still not permitted. The C.I.D. police agency had gone to court to challenge a decision made on August 8, 2016. In that decision, the head judge in Mysuru had refused to accept the charge-sheet filed by a police inspector from the C.I.D.'s Financial and Vigilance Unit. Justice Natarajan also cancelled an earlier decision by the special court that had let the accused, Greenbuds Agro Farms Limited Company and its directors (accused numbers 2 through 5), go free. These individuals and the company were accused of tricking investors out of their money. The original court had rejected the charge-sheet, which was filed under the Karnataka law protecting investors, because the Police Inspector was not the right officer to file such a report or to take action. As a result, the accused were freed from charges under Section 9 of that specific law. However, the investigating officer was allowed to file a charge-sheet for crimes under the general Indian Penal Code, but this time before the correct local judge. The court said that while the lower court was right to not accept the charge-sheet, it made a mistake by releasing the accused and telling the investigating officer to file the report with a different judge. Once a Special Court is set up to handle these cases, the accused should not be discharged simply because the charge-sheet was filed by an officer who wasn't authorized. The lower court misunderstood parts of the special law and did not properly consider Section 4 of the CrPC. It added that according to Section 4(2) of the CrPC, all crimes under any other law must be investigated, examined, tried, and handled using the same rules. This applies unless a specific law in effect at that time regulates how or where such crimes should be dealt with. Given this, it is wrong to separate crimes punishable under general laws (like the IPC) from those under special laws. Both types of crimes should be tried together by the Special Court created under the Act. Finally, the court canceled the special court's earlier decision. It ordered the Special Court to give the charge-sheet back to the investigating officer. The officer must then file a separate charge-sheet for each individual complaint. After that, the lower court must continue the legal process as required by law.
The State by C.I.D. filed this petition under Section 482 of the Code of Criminal Procedure Code, 1973 (for short, ‘Cr.P.C.’) being aggrieved by the order dated 8-8-2016 passed by the Principal District and Sessions Judge, Mysuru, (hereinafter referred to as ‘Trial Court’) in Crime No.116 of 2013 for having rejected the charge-sheet filed by the Police Inspector, Financial and Vigilance Unit, C.I.D., Bengaluru. 2. The petitioner-State is the complainant and the respondents are the accused before the Trial Court. The ranks of the parties before the Trial Court are retained for the sake of convenience. 3. The case of the prosecution is that, accused No.1 is the Greenbuds Agro Farms Limited Company and accused Nos.2 to 5 are the Managing Directors and Directors of the said Company. It is alleged that, they have collected investments from the general public and cheated the public up to Rs.12,95,13,433/-. The individual investors have filed complaints before different Police Stations in Mysuru District. The State Government, by its order, appointed the jurisdictional Assistant Commissioner as Competent Authority for the purpose of taking action against the accused under Section 5 of the Karnataka Protection of Interest of Depositors in Financial Establishments Act, 2004 (hereinafter referred to as ‘Act’). Accordingly, investigation has been done and a common charge-sheet came to be filed by the Police Inspector, Financial and Vigilance Unit, C.I.D., before the Trial Court. The Trial Court, by its impugned order, rejected the charge-sheet filed under the Act on the ground that the Police Inspector is not the Competent Officer to file the report or for taking action and hence, the accused were discharged for the offence punishable under Section 9 of the Act. However, liberty was granted to the Investigating Officer to file charge-sheet before the jurisdictional Magistrate for the offences punishable under the Indian Penal Code, 1860 (for short, ‘IPC’), which is under challenge before this Court. 4. Heard the arguments of the learned State Public Prosecutor-I for the petitioner-State and perused the records. Learned counsel for the respondents-accused remained absent in spite of granting sufficient opportunities by way of 5. Previously, this Court dismissed the petition on 12- 6-2020 and later, restored the same on 1-10-2020. At that time, the learned counsel for the respondents appeared and submitted no objection to recall the order. Accordingly, I.A. No.1 of 2020 was allowed and the petition was restored by recalling the order of dismissal. 6. The learned State Public Prosecutor-I has contended that as per Section 4 of the Cr.P.C., the Special Court established under the Act is having power to try the offences punishable under the IPC as well as the offences punishable under the Special Law, but the Trial Court misread Section 5 of the Act and committed error in discharging the accused, even though liberty was granted for filing charge-sheet before the Magistrate by ignoring the special provisions of law. Even if the charge-sheet is returned, the question of discharging the accused is illegal. Hence, he prayed for setting aside the 7. Admittedly, the accused were involved in cheating of depositors, who invested in their Company and they were many complaints filed by the individual investors in different Police Stations of Mysuru District for the offences punishable both under Section IPC, especially Section 420 of the IPC, and Section 9 of the Act. In view of the order of the Government, the Assistant Commissioner was appointed as per Section 5 of the Act for making enquiry and to file report. However, the said report of the Assistant Commissioner, who is a Competent Authority, required to deal with the investments of the Company or other property believed to have been acquired from out of the deposits and to attach the said investments under Section 3 of the Act and to protect the interest of the investors in accordance with the procedure laid down in the Special Act. Section 9 of the Act prescribes punishment for the offence committed by the Company which is liable for punishment of both imprisonment as well as fine. As per Section 18 of the Act, the Cr.P.C. is applicable and the Special Court shall follow the procedure specified in the Cr.P.C. for the trial of warrant cases by the Magistrate, which is nothing but a Judicial Magistrate, First Class or Metropolitan Magistrate. Once the complaint is lodged against the Company for cheating the investors as per Section 154 of the Cr.P.C. before the Police and once the case is registered, the Investigating Officer is required to file charge-sheet against the offenders as per Section 173 of the Cr.P.C. The Special Court has been established for trying the offences committed under Section 10 of the Act. Therefore, the Investigating Officer is required to file charge-sheet before the Special Court established under the Act. 8. As per Section 4(2) of the Cr.P.C., all offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. Such being the case, bifurcating the offences punishable under IPC and Special Law is not correct. Both the offences are required to be tried together by the Special Court established under 9. Though the Trial Court rightly refused to accept the charge-sheet, but committed error in discharging the accused and directing the Investigating Officer to file charge-sheet before the jurisdictional Magistrate. Once the Special Court is established, the question of discharging the accused for the reasons that the charge-sheet is filed by incompetent Investigating Officer does not arise. The Trial Court misread the provisions of Special Act and has not considered Section 4 of the Cr.P.C. 10. The Investigating Officer committed mistake in filing common charge-sheet for the various crime registered in different Police Stations which is impermissible. In this regard, the Division Bench of the Delhi High Court in the case of STATE v. KHIMJI BHAI JADEJA (Crl. Ref. No.1 of 2014 dated 8-7-2019) has considered the judgments of various High Courts as well as Supreme Court and held that filing an amalgamated charge-sheet is impermissible. At paragraph “76. From Chapter XII of the Cr.P.C., it is evident that upon disclosure of information in relation to commission of a cognizable offence, the police is bound to register the FIR. The registration of FIR sets into motion the process of investigation. The same culminates into the filing of the final report by the police officer before the Magistrate. Thus, in respect of every FIR, there would be a separate final report and, there could be, further report(s) in terms of Section 173(8). 80. Thus, our answer to question (b) is that in respect of each FIR, a separate final report [and wherever necessary supplementary/ further charge sheet(s)] have to be filed, and there is no question of amalgamation of the final reports that may be filed in respect of different FIRs. The amalgamation, strictly in terms of Section 219 Cr.P.C., would be considered by the Court/ Magistrate at the stage of framing of charge, since Section 219(1) mandates that where the requirements set out in the said Section are met, the accused "may be charged with, and tried at one trial for, any number of them not exceeding three".” 11. I am in respectful agreement with the view taken by the Division Bench of the Delhi High Court. On perusal of the judgment stated supra, it is clear that, the offences which are similar in nature committed by the same accused within twelve months can be tried together by framing a common charge as per Section 219 of the Cr.P.C., but the question of filing common charge-sheet in multiple crimes or complaints is impermissible. 12. In a similar provisions of the Special Act, at Tamil Nadu, the Madras High Court in an unreported judgment in the case of P.S. CHELLAMUTHU AND OTHERS v. THE ANOTHER in Crl.O.P. Nos.21711 and 35339 of 2007 dated 4-12-2008 has considered the similar Special Act namely, Tamil Nadu Protection of interests of Depositors (in Financial Establishments) Act, 1997, wherein it has held that in respect of trying the offences by the Special Court and taking cognizance, the Cr.P.C. would apply. 13. Similarly, in the Special Act, Section 18 of the Act empowers the Special Court for taking cognizance, trying the accused person by following the procedures specified in the Cr.P.C. The first conviction shall be punishable with imprisonment for a term which may extend to six years with fine and which may be extend to Rs.1.00 lakh and proviso to Section 9 of the Act prescribes that the imprisonment shall not be less than three years in the absence of special and adequate reasons. Part 2 of Schedule-I of the Cr.P.C. prescribes the classification of offences against other laws. If the offence punishable for three years and upwards, but not more than seven years, the offence is cognizable and bailable. The Special Act is silent about offence under the present Act is whether cognizable or non-cognizable. Thereby, the Cr.P.C. is applicable. As per part 2 of Schedule I of the Cr.P.C., the offence under Section 9 is cognizable and non- bailable. That apart, as per Section 18(2) of the Act, the anticipatory bail is applicable, which shows that the offences are non-bailable. Such being the case, the Trial Court came to wrong conclusion that as per Section 5 of the Act, the Police Officer was incompetent to file the charge-sheet. Filing the report by the Competent Authority to the Government is different aspect in respect of returning the money to the investors and protecting the investment made by the accused Company out of the investors’ amount. So far as punishment in criminal cases is concerned, the Police or Special Police have power to file final report before the Special Court. However, the question of filing common charge-sheet for various complaints filed by the individual investors in different Police Station limits is against the law and the question of filing amalgamated charge-sheet does not arise and it is impermissible under the Cr.P.C. 14. Therefore, the State-C.I.D. Police have no authority to file common charge-sheet in different complaints. However, the Investigating Officer has to file separate charge- sheet against each crime registered by the Police on individual complaint. Thereafter, the Special Court shall take cognizance of the offences both punishable under the IPC and the Special Act by following the Cr.P.C. and dispose of the matter in accordance with law. So far as on the report of the Competent Authority, it has to be submitted to the State Government and later, the Trial Court on the report of the Competent Officer to attach or seize the properties and investments under Section 3 of the Act for the purpose of protecting the interests and refunding the money to the investors as per Section 12 of the Act. 15. For the reasons stated above, the Trial Court committed error in rejecting the charge-sheet on the ground that the Investigating Officer is not the Competent Authority to file the charge-sheet and wrongly discharged the accused for the offence punishable under Section 9 of the Act and also committed error in directing the Investigating Officer to file the charge-sheet before the jurisdictional Magistrate in respect of the offences punishable under the IPC. Therefore, the impugned order requires to be quashed. 16. Accordingly, the petition is allowed. The order dated 8-8-2016 passed by the Principal District and Sessions Judge, Mysuru, in Crime No.116 of 2013 is hereby quashed. Discharging the accused is hereby set aside. 17. Further, the Special Court is directed to return the charge-sheet to the Investigating Officer in order to file separate charge-sheet in respect of the each individual complaints and thereafter, the Trial Court shall proceed in accordance with law. Registry to intimate the Trial Court forthwith.
The Karnataka High Court has stated that it is against the law to file one main report (called a charge-sheet) that combines many complaints from different investors against the same accused person, especially if these complaints came from various police stations. This type of combined charge-sheet is not allowed under the Criminal Procedure Code (CrPC), which sets out how criminal cases should be handled. Justice K Natarajan, sitting as a single judge, ruled that the state police (C.I.D.) do not have the power to combine different complaints into one charge-sheet. Instead, the officer investigating the case must create a separate charge-sheet for each individual crime that the police have officially recorded based on a person's complaint. After this, a special court will officially recognize these crimes, which can fall under both general laws (like the Indian Penal Code) and specific laws (Special Act). The court will then deal with these cases by following the CrPC and make a decision according to the law. The court based its decision on a previous ruling from the Delhi High Court. This ruling came from the case of STATE v. KHIMJI BHAI JADEJA and had reviewed decisions from various other High Courts and the Supreme Court. That ruling also concluded that filing a combined charge-sheet is not allowed. The court explained that similar crimes committed by the same accused person within a twelve-month period can be tried together by creating a single main accusation, as allowed by Section 219 of the CrPC. However, this is different from filing one combined charge-sheet for many separate crimes or complaints, which is still not permitted. The C.I.D. police agency had gone to court to challenge a decision made on August 8, 2016. In that decision, the head judge in Mysuru had refused to accept the charge-sheet filed by a police inspector from the C.I.D.'s Financial and Vigilance Unit. Justice Natarajan also cancelled an earlier decision by the special court that had let the accused, Greenbuds Agro Farms Limited Company and its directors (accused numbers 2 through 5), go free. These individuals and the company were accused of tricking investors out of their money. The original court had rejected the charge-sheet, which was filed under the Karnataka law protecting investors, because the Police Inspector was not the right officer to file such a report or to take action. As a result, the accused were freed from charges under Section 9 of that specific law. However, the investigating officer was allowed to file a charge-sheet for crimes under the general Indian Penal Code, but this time before the correct local judge. The court said that while the lower court was right to not accept the charge-sheet, it made a mistake by releasing the accused and telling the investigating officer to file the report with a different judge. Once a Special Court is set up to handle these cases, the accused should not be discharged simply because the charge-sheet was filed by an officer who wasn't authorized. The lower court misunderstood parts of the special law and did not properly consider Section 4 of the CrPC. It added that according to Section 4(2) of the CrPC, all crimes under any other law must be investigated, examined, tried, and handled using the same rules. This applies unless a specific law in effect at that time regulates how or where such crimes should be dealt with. Given this, it is wrong to separate crimes punishable under general laws (like the IPC) from those under special laws. Both types of crimes should be tried together by the Special Court created under the Act. Finally, the court canceled the special court's earlier decision. It ordered the Special Court to give the charge-sheet back to the investigating officer. The officer must then file a separate charge-sheet for each individual complaint. After that, the lower court must continue the legal process as required by law.
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The respondent has filed a private complaint u/s.200 of Cr.P.C. for the offence punishable under Sections 499 and 500 of the Indian Penal Code (‘IPC’ for short) against the petitioners and other accused alleging that several media entities has spoken ill about the advocate’s fraternity at large. The learned Magistrate after recording the sworn statement of the complainant took cognizance of the aforesaid offence and issued summons to the petitioners-accused among other accused. Taking exception to this, the petitioners have filed this petition. 2. Sri. M.S.Shyam Sundar, learned Senior counsel appearing for the petitioners submits that the petitioners are not aggrieved persons as defined under Section 499 of IPC, so as to maintain the complaint for the offence punishable under Section 499 of IPC. In support, he has placed reliance on the decision of the Hon’ble Apex Court in the case of S.KHUSHBOO Vs. KANNIAMMAL AND ANOTHER reported in AIR (SC)-2010-0-3196. He further submits that the petitioners-accused Nos.9 and 10 are media entities, however, summons have been issued against individuals and the same is impermissible. 3. The respondent-complainant though served with notice has remained absent. 4. I have considered the submissions made by the learned counsel for the petitioners and also perused the documents annexed to the petition. 5. The allegation in the complaint is that sections of Media have spoken ill about the advocate’s fraternity which amounts to defamation under Section 499 and 500 of IPC. The Hon’ble Apex Court in the case of S.Khushboo supra, at para 26 and 27 has held So as to attract the offence punishable under Sections 499 and 500 of IPC, ‘an essential element of the cause of action for defamation that the words complained of should be published “of the complainant/plaintiff”. Where he is not named, the test would be whether the words would reasonably lead people acquainted with him to the conclusion that he was the person referred to.’ 6. In the present case the allegation is that the petitioners-accused have spoken ill about the advocate’s fraternity and the words complained of is not against the complainant in his individual capacity. Hence, the complainant is not an aggrieved person as enumerated under Section 198 of Cr.P.C., so as to maintain the complaint for the offence punishable under Sections 499 and 500 of IPC. Accordingly, I pass the following: ii) The impugned proceedings in C.C.NO.1378/2012 pending on the file of the Additional Civil Judge and JMFC Court, Kundapura, Udupi District, insofar it relates to accused Nos.9 and 10 is hereby quashed.
The Karnataka High Court has stopped a defamation case against Public TV, a Kannada news channel, and HR Ranganath, its Chief Patron. Defamation means harming someone's reputation by saying false things about them. This case began with a private complaint, meaning a regular citizen, not the police, started it. The complaint claimed that several news companies had spoken badly about all lawyers as a group. A single judge, Justice Hemant Chandangoudar, approved the TV channel's request to end the case. He explained that the complaint was about the accused speaking badly about the entire group of lawyers. The words used were not aimed at the person who complained specifically. Because of this, the person who complained was not "personally harmed" according to Section 198 of the Criminal Procedure Code. This meant they could not continue with the complaint for defamation, which is covered by Sections 499 and 500 of the Indian Penal Code. A lawyer named Bannadi Somanath Hegde was the one who filed the private complaint, under Section 200 of the Criminal Procedure Code. He accused Public TV, Ranganath, and others of defamation (crimes under Sections 499 and 500 of the Indian Penal Code). He claimed that many news outlets had spoken badly about lawyers as a whole group. After hearing the complainant's statement given under oath, the lower court judge (Magistrate) agreed to officially hear the case. The judge then sent official notices, called summons, to Public TV, Ranganath, and the other accused people, telling them to come to court. M.S. Shyam Sundar, a senior lawyer for Public TV and Ranganath, argued that the person who complained was not "personally harmed" as defined in Section 499 of the Indian Penal Code. Because of this, he argued, the complainant should not be allowed to continue with the defamation complaint. **Findings:** The court noticed that the complaint claimed some news groups had spoken badly about lawyers as a group, which the complaint said was defamation under Sections 499 and 500 of the Indian Penal Code. The court then looked back at a decision by the Supreme Court (India's highest court) in a case called S. Khushboo v. Kanniammal & Anr. In that case, the Supreme Court had ruled: "For a crime like defamation (under Sections 499 and 500 of the Indian Penal Code) to apply, the spoken or written words must clearly be "about the person complaining." If the person isn't named, then people who know that person must reasonably believe the words were referring to them." Following this rule, the court again stated that the complainant was not "personally harmed" as defined under Section 198 of the Criminal Procedure Code. Therefore, he could not continue with the complaint for defamation. For these reasons, the court agreed to stop the case.
The respondent has filed a private complaint u/s.200 of Cr.P.C. for the offence punishable under Sections 499 and 500 of the Indian Penal Code (‘IPC’ for short) against the petitioners and other accused alleging that several media entities has spoken ill about the advocate’s fraternity at large. The learned Magistrate after recording the sworn statement of the complainant took cognizance of the aforesaid offence and issued summons to the petitioners-accused among other accused. Taking exception to this, the petitioners have filed this petition. 2. Sri. M.S.Shyam Sundar, learned Senior counsel appearing for the petitioners submits that the petitioners are not aggrieved persons as defined under Section 499 of IPC, so as to maintain the complaint for the offence punishable under Section 499 of IPC. In support, he has placed reliance on the decision of the Hon’ble Apex Court in the case of S.KHUSHBOO Vs. KANNIAMMAL AND ANOTHER reported in AIR (SC)-2010-0-3196. He further submits that the petitioners-accused Nos.9 and 10 are media entities, however, summons have been issued against individuals and the same is impermissible. 3. The respondent-complainant though served with notice has remained absent. 4. I have considered the submissions made by the learned counsel for the petitioners and also perused the documents annexed to the petition. 5. The allegation in the complaint is that sections of Media have spoken ill about the advocate’s fraternity which amounts to defamation under Section 499 and 500 of IPC. The Hon’ble Apex Court in the case of S.Khushboo supra, at para 26 and 27 has held So as to attract the offence punishable under Sections 499 and 500 of IPC, ‘an essential element of the cause of action for defamation that the words complained of should be published “of the complainant/plaintiff”. Where he is not named, the test would be whether the words would reasonably lead people acquainted with him to the conclusion that he was the person referred to.’ 6. In the present case the allegation is that the petitioners-accused have spoken ill about the advocate’s fraternity and the words complained of is not against the complainant in his individual capacity. Hence, the complainant is not an aggrieved person as enumerated under Section 198 of Cr.P.C., so as to maintain the complaint for the offence punishable under Sections 499 and 500 of IPC. Accordingly, I pass the following: ii) The impugned proceedings in C.C.NO.1378/2012 pending on the file of the Additional Civil Judge and JMFC Court, Kundapura, Udupi District, insofar it relates to accused Nos.9 and 10 is hereby quashed.
The Karnataka High Court has stopped a defamation case against Public TV, a Kannada news channel, and HR Ranganath, its Chief Patron. Defamation means harming someone's reputation by saying false things about them. This case began with a private complaint, meaning a regular citizen, not the police, started it. The complaint claimed that several news companies had spoken badly about all lawyers as a group. A single judge, Justice Hemant Chandangoudar, approved the TV channel's request to end the case. He explained that the complaint was about the accused speaking badly about the entire group of lawyers. The words used were not aimed at the person who complained specifically. Because of this, the person who complained was not "personally harmed" according to Section 198 of the Criminal Procedure Code. This meant they could not continue with the complaint for defamation, which is covered by Sections 499 and 500 of the Indian Penal Code. A lawyer named Bannadi Somanath Hegde was the one who filed the private complaint, under Section 200 of the Criminal Procedure Code. He accused Public TV, Ranganath, and others of defamation (crimes under Sections 499 and 500 of the Indian Penal Code). He claimed that many news outlets had spoken badly about lawyers as a whole group. After hearing the complainant's statement given under oath, the lower court judge (Magistrate) agreed to officially hear the case. The judge then sent official notices, called summons, to Public TV, Ranganath, and the other accused people, telling them to come to court. M.S. Shyam Sundar, a senior lawyer for Public TV and Ranganath, argued that the person who complained was not "personally harmed" as defined in Section 499 of the Indian Penal Code. Because of this, he argued, the complainant should not be allowed to continue with the defamation complaint. **Findings:** The court noticed that the complaint claimed some news groups had spoken badly about lawyers as a group, which the complaint said was defamation under Sections 499 and 500 of the Indian Penal Code. The court then looked back at a decision by the Supreme Court (India's highest court) in a case called S. Khushboo v. Kanniammal & Anr. In that case, the Supreme Court had ruled: "For a crime like defamation (under Sections 499 and 500 of the Indian Penal Code) to apply, the spoken or written words must clearly be "about the person complaining." If the person isn't named, then people who know that person must reasonably believe the words were referring to them." Following this rule, the court again stated that the complainant was not "personally harmed" as defined under Section 198 of the Criminal Procedure Code. Therefore, he could not continue with the complaint for defamation. For these reasons, the court agreed to stop the case.
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2. This appeal is against a judgment and order dated 17th September 2021 passed by the Dharwad Bench of the High Court of Karnataka, dismissing Criminal Petition No.101420/2020 filed by the Appellant under Section 482 of the Code of Criminal Procedure (hereinafter referred to as “the Cr.P.C.”), and upholding an order dated 19th April 2018 passed by the Principal District Judge, Uttar Kannada, Karwar, taking cognizance against the Appellant of offence under Section 23 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “POCSO”). 3. The short question of law involved in this appeal is, whether Section 155(2) of the Cr.P.C. applies to the investigation of an offence under Section 23 of POCSO? Is the Special Court debarred from taking cognizance of an offence under Section 23 of POCSO and obliged to discharge the accused under Section 227 of the Cr.P.C., only because of want of permission of the jurisdictional Magistrate to the police, to 4. The Appellant is the Editor of Karavali Munjavu Newspaper. On or about 27th October 2017, a news report was published in the Newspaper, Karavali Munjavu, regarding the sexual harassment of a 16 year old girl. The victim was named in the said report. “23. Procedure for media.—(1) No person shall make any report or present comments on any child from any form of media or studio or photographic facilities without having complete and authentic information, which may have the effect of lowering his reputation or infringing upon his privacy. (2) No reports in any media shall disclose, the identity of a child including his name, address, photograph, family details, school, neighbourhood or any other particulars which may lead to disclosure of identity of the child: Provided that for reasons to be recorded in writing, the Special Court, competent to try the case under the Act, may permit such disclosure, if in its opinion such disclosure is in the interest of the child. (3) The publisher or owner of the media or studio or photographic facilities shall be jointly and severally liable for the acts and omissions of his employee. (4) Any person who contravenes the provisions of sub-section (1) or sub-section (2) shall be liable to be punished with imprisonment of either description for a period which shall not be less than six months but which may extend to one year or with fine or with both.” 6. On or about 30th October 2017, the victim’s mother lodged a complaint, inter alia, against the Appellant under Section 23 of POCSO in the Siddapur Police Station, pursuant to which a criminal case being Case No.203/2017 was started against the 7. After investigation, the Police filed a report under Section 173 of the Cr.P.C. in the Court of the Principal District Judge, Uttar Kannada, Karwar, on 31st December 2017. By an order dated 19th April 2018, the Court of the Principal District Judge, Uttar Kannada, Karwar, took cognizance of the offence alleged and directed that summons be issued to the Appellant. 8. Thereafter, the Appellant filed an application for discharge under Section 227 of the Cr.P.C. on the purported ground that an offence under Section 23 of POCSO being non-cognizable, the police could not have investigated the offence without obtaining an order of the Magistrate under Section 155(2) of the Cr.P.C. The Trial Court dismissed the application of the Appellant, whereupon the Appellant filed a Criminal Petition in the High Court under Section 482 of the Cr.P.C. 9. By the impugned judgment and order dated 17th September 2021, the High Court has dismissed the Criminal Petition, holding that the non obstante provision of Section 19 of POCSO overrides the provisions of the Cr.P.C., including Section 155 thereof. The High Court refused to quash the proceedings initiated against the Appellant under Section 23 of POCSO. 10. Mr. Devdutt Kamat, Senior Counsel appearing on behalf of the Appellant submitted that the provisions of the Cr.P.C. are applicable to all offences punishable by any law for the time being in force, except where a special law provides for a special procedure, overriding the general procedure under the Cr.P.C. 11. In support of his aforesaid submissions, Mr. Kamat referred to Section 2(n) of the Cr.P.C., which defines ‘offence’ to mean any act or omission made punishable by any law for the time being in force. Referring to Section 4 of the Cr.P.C. particularly sub- section (2) thereof, Mr. Kamat emphasized that all offences, including an offence under Section 23 of POCSO have to be investigated and tried in accordance with the “4. Trial of offences under the Indian Penal Code and other laws.—(1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.” 13. Mr. Kamat further submitted that an offence under Section 23 of POCSO, which is punishable with maximum imprisonment which may extend to one year, is a non- cognizable and bailable offence, as per Section 2(l) read with Part II of the First Schedule of the Cr.P.C., extracted hereinbelow for convenience: “2(l) “non-cognizable offence” means an offence for which, and “noncognizable case” means a case in which, a police officer has no authority to arrest without warrant;” Offence Cognizable or Bailable or nonbailable By what Court triable If punishable with Cognizable Non-Bailable Court of Session If punishable with Non-cognizable Any Magistrate If punishable with imprisonment for less Bailable imprisonment for less 14. Mr. Kamat submitted that the mandatory provision of Section 155(2) of the Cr.P.C. makes it obligatory on a Police Officer to investigate a non-cognizable case with prior permission of the Magistrate, failing which the proceedings are liable to be quashed. The police, therefore, have no jurisdiction to investigate into an offence under Section 23 of POCSO, without prior sanction of the jurisdictional Magistrate. 15. Mr. Kamat took this Court through Section 155 of the Cr.P.C., set out hereinbelow: “155. Information as to non-cognizable cases and investigation of such cases.—(1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the (2) No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial. (3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case. (4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable.” 16. Mr. Kamat emphatically argued that no Police Officer could investigate a non- cognizable offence, without the order of a Magistrate having power to try such case, or commit the case for trial, in view of the express bar of Section 155(2) of the Cr.P.C. 17. Mr. Kamat argued that, from the language and tenor of POCSO read with the Cr.P.C., it is patently clear that Legislature has intended that the provisions of the Cr.P.C. would have to be followed in respect of an offence under POCSO and more so in respect of an offence under Section 23 of POCSO. Mr. Kamat submitted that unlike Section 19, Section 23 of POCSO does not exclude the application of the provisions of the Cr.P.C. 18. Mr. Kamat submitted that Section 31 read with Section 33(9) of POCSO categorically makes the provisions of the Cr.P.C. applicable to proceedings under POCSO before the Special Court. In the context of his submissions, Mr. Kamat referred to Section 31 and Section 33(9) of POCSO extracted hereinbelow: “31. Application of Code of Criminal Procedure, 1973 to proceedings before a Special Court.—Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) (including the provisions as to bail and bonds) shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Sessions and the person conducting a prosecution before a Special Court, shall be deemed to be a Public Prosecutor. 33. Procedure and powers of Special Court.- (9) Subject to the provisions of this Act, a Special Court shall, for the purpose of the trial of any offence under this Act, have all the powers of a Court of Session and shall try such offence as if it were a Court of Session, and as far as may be, in accordance with the procedure specified in the Code of Criminal Procedure, 1973 (2 of 1974) for trial before a Court of Session.” 19. Mr. Kamat emphatically argued that the finding of the High Court that the provisions of the Cr.P.C. were excluded for the purpose of Section 23 of POCSO by reason of Section 19 of POCSO, was erroneous. He emphatically argued: (i) Section 23 of POCSO does not exclude the provisions of Cr.P.C. Section 19 of POCSO, which excludes the Cr.P.C., in respect of reporting of an offence, does not apply to an offence under Section 23 of POCSO. (ii) Section 31 of POCSO makes the Cr.P.C. applicable to proceedings before the Special Court under POCSO, unless specifically excluded. This provision has not been noticed by the High Court. (iii) Section 33 (9) of POCSO provides that the trial of offences is to be conducted in accordance with the procedure specified in the Cr.P.C. This Provision has also not been noticed by the High Court. 20. In support of his argument that proceedings against the Appellant were liable to be quashed for want of permission of the jurisdictional Magistrate under Section 155(2) of the Cr.P.C., Mr. Kamat cited Keshav Lal Thakur v. State of Bihar, (1996) 11 SCC 557 where this Court held: “3. …On the own showing of the police, the offence under Section 31 of the Act is non- cognizable and therefore the police could not have registered a case for such an offence under Section 154 CrPC. Of course, the police is entitled to investigate into a non- cognizable offence pursuant to an order of a competent Magistrate under Section 155(2) CrPC but, admittedly, no such order was passed in the instant case. That necessarily means, that neither the police could investigate into the offence in question nor submit a report on which the question of taking cognizance could have arisen…” 21. Mr. Kamat argued that in Keshav Lal Thakur (supra) the facts and circumstances were similar to the facts and circumstances of this case where the chargesheet had been filed without any order of the competent Magistrate under Section 155 (2) of the Cr.P.C. and cognizance had also been taken. This Court categorically held that the entire investigation was vitiated by want of permission under Section 155(2) of the Cr.P.C. 22. Mr. Kamat also cited State of Punjab v. Davinder Pal Singh Bhullar and Others, (2011) 14 SCC 770 where this Court held: “107. It is a settled legal proposition that if initial action is not in consonance with law, all subsequent and consequential proceedings would fall through for the reason that illegality strikes at the root of the order. In such a fact situation, the legal maxim sublato fundamento cadit opus meaning thereby that foundation being removed, structure/work falls, comes into play and applies on all scores in the present case. 108. In Badrinath v. Govt. of T.N. [(2000) 8 SCC 395 : 2001 SCC (L&S) 13 : AIR 2000 SC 3243] and State of Kerala v. Puthenkavu N.S.S. Karayogam [(2001) 10 SCC 191] this Court observed that once the basis of a proceeding is gone, all consequential acts, actions, orders would fall to the ground automatically and this principle is applicable to judicial, quasi-judicial and administrative proceedings equally. 109. Similarly in Mangal Prasad Tamoli v. Narvadeshwar Mishra [(2005) 3 SCC 422] this Court held that if an order at the initial stage is bad in law, then all further proceedings, consequent thereto, will be non est and have to be necessarily set aside. 110. In C. Albert Morris v. K. Chandrasekaran [(2006) 1 SCC 228] this Court held that a right in law exists only and only when it has a lawful origin. (See also Upen Chandra Gogoi v. State of Assam [(1998) 3 SCC 381 : 1998 SCC (L&S) 872] , Satchidananda Misra v. State of Orissa [(2004) 8 SCC 599 : 2004 SCC (L&S) 1181] , SBI v. Rakesh Kumar Tewari [(2006) 1 SCC 530 : 2006 SCC (L&S) 143] and Ritesh Tewari v. State of U.P. [(2010) 10 SCC 677 : (2010) 4 SCC (Civ) 315 : AIR 2010 SC 3823] 111. Thus, in view of the above, we are of the considered opinion that the orders impugned being a nullity, cannot be sustained. As a consequence, subsequent proceedings/ orders/FIR/ investigation stand automatically vitiated and are liable to be declared non est.” 23. Relying on the aforesaid judgment, Mr. Kamat emphatically argued that the initial action of investigation against the Appellant, of offence under Section 23 of POCSO, being illegal, all subsequent actions would be vitiated. 24. Mr. Padhi, appearing for the State of Karnataka, submitted that POCSO had been enacted by Parliament with the laudatory object of punishing sexual offences against children. Section 23 of POCSO prevents publication of the identity of the victim. In this case, the name of the victim had been published in the news report. 25. Mr. Padhi next argued that POCSO being a special enactment, it overrides the general procedural law. Moreover, Section 19 of POCSO begins with a non obstante clause which reads “Notwithstanding anything contained in the Code of Criminal Procedure, 1973….”. This clearly shows that Sections 154 and 155 of the Cr.P.C. have no application to an offence under Section 23 of POCSO. The police has duty under Section 19(1) and 19(2)(c) of POCSO to record the information given by any person having knowledge that a crime under POCSO is likely to be committed or has been committed. Mr. Padhi submitted that Section 19 of POCSO applies to any offence under POCSO. Section 19 of POCSO does not exclude offence under Section 23 of POCSO. 26. Mr. Padhi further submitted that the case had gone beyond the stage of investigation and chargesheet had been filed. The Court had taken cognizance. Mr. Padhi argued that even assuming, for the sake of argument, that the police were required to take prior permission of the concerned jurisdictional Magistrate before proceeding with the investigation, that in itself does not vitiate the order of the Court taking cognizance and framing charges. The accused has to demonstrate grave prejudice, which the Appellant has not been able to do. 27. Mr. Padhi cited Fertico Marketing and Investment Private Limited and Others v. Central Bureau of Investigation and Another, (2021) 2 SCC 525 where “9. … If, therefore, cognizance is in fact taken, on a police report vitiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. That an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court for trial is well settled as appears from the cases in Parbhu v. King Emperor [Parbhu v. King Emperor, 1944 SCC OnLine PC 1 : (1943-44) 71 IA 75 : AIR 1944 PC 73] and Lumbhardar Zutshi v. R. [Lumbhardar Zutshi v. R., 1949 SCC OnLine PC 64 : (1949-50) These no doubt relate to the illegality of arrest in the course of investigation while we are concerned in the present cases with the illegality with reference to the machinery for the collection of the evidence. This distinction may have a bearing on the question of prejudice or miscarriage of justice, but both the cases clearly show that invalidity of the investigation has no relation to the competence of the Court. We are, therefore, clearly, also, of the opinion that where the cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless miscarriage of justice has been caused thereby.” It could thus be seen that this Court has held that the cognizance and the trial cannot be set aside unless the illegality in the investigation can be shown to have brought about miscarriage of justice. It has been held that the illegality may have a bearing on the question of prejudice or miscarriage of justice but the invalidity of the investigation has no relation to the competence of the court.” 28. Mr. Padhi submitted that it is settled law that an order taking cognizance of an offence alleged is not vitiated by any defect in investigation. Section 462 read with Section 465 of the Cr.P.C. protects the trial from any defect in investigation. Distinguishing Keshav Lal Thakur (supra) cited by Mr. Kamat, Mr. Padhi argued that the same does not deal with the earlier judgment of this Court in H. N. Rishbud and Others v. State of Delhi, (1955) 1 SCR 1150. Mr. Padhi submitted that the judgment in Davinder Pal Singh Bhullar (supra) cited by Mr. Kamat has no application in the facts and circumstances of this case since the issue was as follows: “2. The appeals herein raise peculiar substantial questions of law as to whether the High Court can pass an order on an application entertained after final disposal of the criminal appeal or even suo motu particularly, in view of the provisions of Section 362 of the Code of Criminal Procedure, 1973 (hereinafter called “CrPC”) and as to whether in exercise of its inherent jurisdiction under Section 482 CrPC the High Court can ask a particular investigating agency to investigate a case following a particular procedure through an exceptionally unusual method which is not in consonance with the statutory provisions of 29. In his reply, Mr. Kamat argued that this is not a case of defective investigation as sought to be argued on behalf of the State, but a case of investigation without jurisdiction. Distinguishing Fertico Marketing and Investment Private Limited (supra) cited on behalf of the State, Mr. Kamat argued that defective investigation may not vitiate a trial unless there is miscarriage of justice. In Fertico Marketing and Investment Private Limited (supra) consent under Section 6 of the Delhi Special Police Establishment Act 1946 had subsequently been granted to the CBI after registration of the FIR. 30. Mr. Kamat also argued that Sections 462 and 465 of the Cr.P.C., cited by Mr. Padhi are not attracted in this case. Section 462 relates to inquiry or trial or other proceedings in the wrong place and Section 465 saves an order of a Court of competent jurisdiction in case of any error or irregularity in any sanction for the prosecution, unless the Court is of the opinion that a failure of justice had, in fact, been occasioned. 31. Unlike Section 4(1) of the Cr.P.C., which requires all offences under the Indian Penal Code, 1860 (hereinafter referred to as the “the IPC”) to be investigated, inquired into, tried or otherwise dealt with according to the Cr.P.C., Section 4(2) of the Cr.P.C. requires all offences under any other law to be investigated, inquired into, tried or otherwise dealt with according to the provisions of the Cr.P.C., subject to any enactment for the time being in force, regulating the manner and place of investigating, inquiring into, trying or otherwise dealing with offences. 32. Section 5 of the Cr.P.C. categorically states that nothing in the Cr.P.C. shall, in the absence of a specific provision to the contrary, affect any special law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed by any other law for the time being in force. POCSO is a special law for protection of children against sexual abuse. Section 5 of the Cr.P.C. is set out hereinbelow for convenience: - “5. Saving.—Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.” 33. On a combined reading of Sections 4(1) and (2) with Section 5 of the Cr.P.C., all offences under the IPC are to be investigated into, tried or otherwise dealt with in accordance with the provisions of the Cr.P.C. and all offences under any other law are to be investigated, inquired into, tried or otherwise dealt with, according to the same provisions of the Cr.P.C., subject to any enactment for the time being in force, regulating the manner of investigating, inquiring into, trying or otherwise dealing with such offences. “19. Reporting of offences.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), any person (including the child), who has apprehension that an offence under this Act is likely to be committed or has knowledge that such an offence has been committed, he shall provide such information to,-- (a) the Special Juvenile Police Unit; or (3) Where the report under sub-section (1) is given by a child, the same shall be recorded under subsection (2) in a simple language so that the child understands contents being (4) In case contents are being recorded in the language not understood by the child or wherever it is deemed necessary, a translator or an interpreter, having such qualifications, experience and on payment of such fees as may be prescribed, shall be provided to the child if he fails to understand the same. (5) Where the Special Juvenile Police Unit or local police is satisfied that the child against whom an offence has been committed is in need of care and protection, then, it shall, after recording the reasons in writing, make immediate arrangement to give him such care and protection( including admitting the child into shelter home or to the nearest hospital) within twenty-four hours of the report, as may be prescribed. (6) The Special Juvenile Police Unit or local police shall, without unnecessary delay but within a period of twenty-four hours, report the matter to the Child Welfare Committee and the Special Court or where no Special Court has been designated, to the Court of Session, including need of the child for care and protection and steps taken in this regard. (7) No person shall incur any liability, whether civil or criminal, for giving the information in good faith for the purpose of sub-section (1).” 35. The language and tenor of Section 19 of POCSO and subsections thereof makes it absolutely clear that the said Section does not exclude offence under Section 23 of POCSO. This is patently clear from the language and tenor of Section 19(1), which reads “…. any person who has apprehension that an offence under this Act is likely to be committed or has knowledge that such an offence has been committed……”. The expression “offence” in Section 19 of POCSO would include all offences under POCSO including offence under Section 23 of POCSO of publication of a news report, disclosing the identity of a child victim of sexual assault. 36. Moreover, sub-section (5) of Section 19 of POCSO provides that where the Special Juvenile Police Unit or local police is satisfied that the child against whom an offence has been committed, is in need of care and protection it shall, after recording reasons in writing, make immediate arrangements to give the child such care and protection including admitting the child into a shelter home or hospital within 24 hours of the report. Action under sub-section (5) of Section 19 of POCSO has to be taken with utmost expedition. Such action obviously involves investigation into whether an offence has been committed and whether the child requires special care. 37. Sub-section (6) of Section 19 of POCSO requires the Special Juvenile Police Unit or local police, as the case may be, to report information to the Child Welfare Committee and the Special Court or where no Special Court has been designated to the Court of Sessions without unnecessary delay, within 24 hours from the receipt of information. The report is to include need, if any, of the concerned child for care and protection and steps taken in this regard. A child, whose identity is disclosed in the media may very well be in need of care and protection. Disclosure of the identity of the child in the media may also expose the child victim of sexual offence to vindictive retaliation by the perpetrators of the crime or their accomplices. 38. Section 31 of POCSO, relied upon by Mr. Kamat provides that the provisions of the Cr.P.C., including provisions as to bail and bonds are to apply to the proceedings before a Special Court, and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Sessions and the person conducting prosecution before a Special Court shall be deemed to be a Public Prosecutor. The said Section has nothing to do with reporting or investigation of an offence. Section 33(9) of POCSO extracted hereinabove, which confers powers of a Court of Sessions on the Special Court to try offences under POCSO, also has nothing to do with the reporting or investigation of an offence. Subject to the provisions of POCSO, the Special Court is to try an offence under POCSO, as if it were a Court of Sessions “as far as may be”, in accordance with the procedure specified in the Cr.P.C. for trial before a Sessions Court. Neither Section 31 nor Section 33(9) of POCSO makes any reference to investigation. 39. It is well settled that legislative intent is to be construed from the words used in the statute, as per their plain meaning. Had Legislature intended that the Cr.P.C. should apply to investigation of an offence under Section 23 of POCSO, would specifically have provided so. The expression “investigation” would, as in Section 4(1) or (2) of the Cr.P.C., have expressly been incorporated in Section 31 or Section 33(9) or elsewhere in POCSO. 40. In our society, victims of sexual offence are, more often than not, treated as the abettor, if not perpetrator of the crime, even though the victim may be absolutely innocent. Instead of empathizing with the victim people start finding fault with the victim. The victim is ridiculed, defamed, gossiped about, and even ostracized. 41. Section 228A of IPC makes disclosure of the identity of any person, against whom the offence of rape or any related offence is found to have been committed, punishable with imprisonment of either description for a term which may extend to two years and also liable to fine. 42. Sub-section (2) of Section 327 of the Cr.P.C. requires that the trial of rape be conducted in camera and sub-section (3) of the said Section prohibits the printing or publishing of any matter in relation to proceedings under Sections 376, 376A to 376E of the IPC. 43. Section 74 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as the “JJ Act”) prohibits disclosure of the name, address, school or any other particular, which may lead to the identification of a child in conflict with law or a child in need of care and protection or a child victim or witness of a crime in any newspaper, magazine, news-sheet or audio-visual media or other forms of communication, regarding any inquiry or investigation or judicial procedure, unless for reasons to be recorded in writing, the Board or Committee, as the case may be, holding the inquiry may permit such disclosure, if in its opinion such disclosure is in the best interest of the child. 44. The entire object of provisions such as Section 228A of the IPC, 327(2) of the Cr.P.C., Section 74 of the JJ Act and Section 23 of POCSO is to prevent disclosure of the identity of the victim. The identity of the victim should not be discernible from any matter published in the media. 45. The Charter of the United Nations reaffirms the faith of the peoples of the United Nations in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women. 46. As stated in the Preamble to the Universal Declaration of Human Rights, adopted by the United Nations on 10th December 1948, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family, is the foundation of freedom, justice and peace in the world. Human Rights should be protected by the Rule of Law. 47. As per the Universal Declaration of Human Rights, all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. Nobody is to be subjected, inter alia, to degrading treatment. 48. Article 12 of the Universal Declaration of Human Rights says that no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks on his or her honour and reputation. Everyone has the right to protection of the law against such interference or attacks. 49. Every child has the inalienable human right to live with dignity, grow up and develop in an atmosphere conducive to mental and physical health, be treated with equality and not be discriminated against. The inalienable rights of a child include the right to protection of privacy. The Constitution of India guarantees the aforesaid inalienable and basic rights to all, including children. The right to live with dignity, the right to personal liberty, the right to privacy, the right to equality and/or the right against discrimination, the right against exploitation, are Fundamental Rights guaranteed by Part III of the Constitution of India. 50. The Directive Principles of State Policy and in particular Article 39(f) casts an obligation on the State to ensure that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. For the full and harmonious development of his or her personality, the child should grow up in an atmosphere of happiness, love and understanding and be brought up in the spirit of peace, dignity, tolerance, freedom, equality and solidarity. 51. The United Nations Convention on the Rights of the Child, ratified by India on 11th December 1992, was based on the basic principles, inter alia, of non- discrimination against a child, the best interest of the child, the right of a child to survival and development. The Convention on the Rights of the Child also requires States to undertake all appropriate national, bilateral and multilateral measures to prevent exploitation of children. POCSO not only protects children from sexual offences but also protects the interests of children in general, as victims as well as witnesses. The right of a child to dignity not only requires that the child be protected from offences of sexual assault, sexual harassment and pornography but also requires that the dignity of a child be safeguarded. Disclosure of the identity of a child who is a victim of sexual offences or who is in conflict with the law is in fundamental breach of the right of the child to dignity, the right not to be embarrassed. 52. Article 16 of the Convention on the Rights of the Child provides that no child shall be subjected to arbitrary or unlawful interference with his or her privacy. The child has the right to the protection of the law against such interference. India has ratified the Convention on the Rights of the Child. The J.J. Act and POCSO are in furtherance of the obligations of India under the Convention. The provision of Section 23 of POCSO which protects child victims of sexual abuse from unwarranted intrusion into privacy, harassment and mental agony has to be strictly enforced. The provision cannot be allowed to be diluted. 53. In Nipun Saxena v. Union of India, 2019 (2) SCC 703 this Court held:- “38. No doubt, it is the duty of the media to report every crime which is committed. The media can do this without disclosing the name and identity of the victim in case of rape and sexual offences against children. The media not only has the right but an obligation to report all such cases. However, media should be cautious not to sensationalise the same. The media should refrain from talking to the victim because every time the victim repeats the tale of misery, the victim again undergoes the trauma which he/she has gone through. Reportage of such cases should be done sensitively keeping the best interest of the victims, both adult and children, in mind. Sensationalising such cases may garner television rating points (TRPs) but does no credit to the credibility of the media.” 54. In Nipun Saxena (supra), this Court directed: - “50. In view of the aforesaid discussion, we issue the following directions: 50.1. No person can print or publish in print, electronic, social media, etc. the name of the victim or even in a remote manner disclose any facts which can lead to the victim being identified and which should make her identity known to the public at large. ” 55. The judgment of this Court in Keshav Lal Thakur (supra) is clearly distinguishable, in that this Court was dealing with investigation into an offence under Section 31 of the Representation of People Act, 1950. The Representation of People Act, 1950 does not contain any provision regulating the manner or place of investigation, or inquiry into any crime, or otherwise dealing with any offence under the said Act. 56. There can be no dispute with the proposition of law laid down in paragraphs 107 to 111 of Davindar Pal Singh Bhullar (supra) cited by Mr. Kamat. In this case for the reasons discussed above, it cannot be said that the impugned order of the Special Court taking cognizance of the complaint against the Appellant suffers from any such illegality that strikes at the root of the said order. The legal maxim “sublato fundamento cadit opus” is not attracted. 57. Mr. Kamat’s argument that Section 19 of POCSO does not include offence under Section 23 of POCSO is unsustainable in law and not supported by any cogent reasons. As observed above, the words “offence under this Act” in Section 19(1) of POCSO makes it clear that Section 19 includes all offences under POCSO including offence under Section 23 of POCSO. It is reiterated at the cost of repetition that a child against whom offence under Section 23 of POCSO has been committed, by disclosure of her identity, may require special protection, care and even shelter, necessitating expeditious investigation for compliance of sub-sections (5) and (6) of Section 19 of POCSO. 58. I am unable to accept the argument of the Appellant that the proceedings were vitiated and liable to be quashed or the Appellant was liable to be discharged without trial, only because of want of prior permission of the jurisdictional Magistrate to investigate into the alleged offence. The Appellant would have to defend the proceedings initiated against him under Section 23 of the POCSO on merits. 59. For the reasons discussed above, I do not find any infirmity with the impugned judgment and order of the High Court which calls for interference by this Court. The appeal is, accordingly, dismissed. I have the benefit of going through the opinion of my esteemed sister Justice Indira Banerjee, however I am unable to agree to the view taken in the judgment for the reasons to follow. 3. The facts as succinctly stated in the order and on perusal of those, the first core question that arises is that “In absence of any classification provided in the Protection of Children from Sexual Offences Act, 2021 (in short POCSO Act) regarding offences being cognizable or non-cognizable, can all the offences under the Act may be categorized as cognizable in view of the non-obstante clause specified under Section 19 of POCSO Act?” . The another question is “Whether Section 19 of the POCSO Act have overriding effect to the provisions of Cr.P.C., in particular Chapter 12 titled as ‘Information to the police and their powers to investigate’ in the context of the provision of Section 4 and 5 of Cr.P.C.?”. The last question is “In the case at hand, by virtue of mandate of Section 4(2) of Cr.P.C., in absence of having any provision in Special Enactment i.e. POCSO Act for investigation, to try an offence under Section 23 of POCSO Act, the mandate of Section 155(2) of Cr.P.C. shall be required to be followed ?” 4. Before adverting to answer the aforesaid questions, the backdrop of the issue in the instant appeal is described here. As per allegations, the appellant allegedly committed an offence under Section 23 of POCSO Act for disclosing the identity of the victim. Mother of the victim lodged the complaint on 30.10.2017 against the appellant. The matter was reported by the police to the Special Court. Thereafter, investigation was completed and challan was filed on 31.12.2017. The Special Court in-turn took cognizance on 19.04.2018. The appellant then moved an application for discharge before the Special Court, which was rejected vide order dated 28.08.2020. The order taking cognizance and consequential proceedings were assailed by the appellant in a petition under Section 482 of Cr.P.C. before the High Court seeking quashment inter-alia on the ground that offence under Section 23 of POCSO Act being non-cognizable, investigation conducted by police authorities without the order of the magistrate as mandated in Section 155(2) of the Cr.P.C and filing the challan, completing investigation vitiates trial, and all the proceedings deserve to be quashed. 5. The Special Court while rejecting the application for discharge observed that in view of Section 19 of POCSO Act, all offences under the Act are cognizable after taking guidance by the judgment of Delhi High Court in the case of Santosh Kumar Mandal vs. State, 2016 SCC OnLine Del 5378. It was held the police have power to register the case and investigate without obtaining permission from the magistrate. The Court also observed that sufficient material is available against the appellant to frame charge under Section 23 of POCSO Act and directed to frame the charges. 6. The High Court by the impugned order held that Section 19 of POCSO Act provides for reporting of offence and does not classify cognizable or non-cognizable offence. It is said, sub-section (1) of Section 19 of POCSO Act starts with ‘non-obstante’ clause which overrides the provisions contained under Sections 154 and 155 of Cr.P.C. However, the provisions of Sections 154 and 155 of Cr.P.C. are specifically excluded from application to the provisions of the POCSO Act. Therefore, obtaining the order from the Magistrate under Section 155(2) of Cr.P.C. to investigate a non-cognizable case is not necessary. 7. All the aforesaid questions are interlinked to each other, therefore, it is being adverted commonly. In this respect, POCSO Act does not clarify regarding cognizable and non-cognizable offences. However, the definition of the cognizable and non- cognizable offence under Sections 2(c) and 2(l) of Cr.P.C. may be relevant and 2. Definitions. — In this Code, unless the context otherwise requires — (c) “cognizable offence” means an offence for which, and “cognizable case” means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant; (l) “non-cognizable offence” means an offence for which, and “non-cognizable case” means a case in which, a police officer has no authority to arrest without warrant; 8. On perusal of the aforesaid, it is clear that on commission of the cognizable offence, a police officer may in accordance with First Schedule of Cr.P.C. or under any other law may arrest the accused without warrant. While in a non-cognizable offence, a police officer has no authority to arrest without warrant obtained by an order of the 9. The First Schedule of Cr.P.C. provides for classification of offence which is in two parts. Part first of the said Schedule specify punishment; cognizability or noncognizability; bailable or non-bailable; and triable by which court. Part second of First Schedule deals with the offences committed under any other law and specify the description of the offences; cognizability – noncognizability; bailable – non-bailable; and triable by which Court. In para 14 of the judgment above, part second of the First Schedule has been quoted. We can take advantage of it and on perusal of the same, it is clear that the sentence with imprisonment for less than 3 year or with fine if prescribed in that law, then commission of such offence under any other laws will be non-cognizable, bailable and triable by any magistrate. In the present case, an offence under Section 23 of POCSO Act has been allegedly committed in contravention of sub-sections (1) and (2) thereof, which is punishable with imprisonment for a period not less than 6 months but it may extend to 1 year or with fine or with both. Under the POSCO Act, it is not clear all the offences under the said Act are cognizable or some are non-cognizable. However, the Court may have to take the assistance from the provisions of Cr.P.C. on the said issue. In this regard, Section 4 of Cr.P.C. quoted in para 13 of the judgment above can be profitably looked into. As per sub-section 1 of Section 4 of Cr.P.C., trial of offences under Indian Penal Code, and as per sub-section (2) of Section 4 of Cr.P.C. under any other laws shall be investigated enquired into, tried and otherwise dealt with as specified in sub-section (1), subject to any enactment for the time being in force regulating the manner or place of investigating, enquiring into, trying or otherwise dealing with such offences. Section 5 of Cr.P.C. is a ‘savings’ clause whereby the procedure prescribed in any special or local law for the time being in force shall remain unaffected from the procedure provided in Cr.P.C. So, the provisions specified in any special enactment along with its procedure shall override the provisions of Cr.P.C. and be followed . In other words, the provisions of Cr.P.C. would not tinker with the provisions of special enactment and they are saved to such extent as specified in Section 5 of Cr.P.C. and would be applicable as per Section 4(2) of the Cr.P.C. 10. As per the findings recorded by Special Court as well the High Court, the shelter of Section 19 of POCSO Act has been taken relying upon the judgment of Delhi High Court in the case of Santosh Kumar Mandal (supra). However, the scope, context, applicability of Section 19 of POCSO Act after the said judgment is required to be seen, and to find out whether special enactment deals with investigation after reporting. In para 36 of the judgment above, Section 19 has been quoted which is part of Chapter V of the POCSO Act and provide a procedure for ‘reporting’ of the cases. It says that ‘when any person including the child has apprehension that an offence under the POCSO Act is likely to be committed or has knowledge of commission of the offence, he shall provide such information to the Special Juvenile Police Unit (in short “SJPU”) or local police. On reporting the offence under the Act, every such report shall be ascribed an entry number and be recorded in writing; after reading over to the informant; and shall be entered in a book to be kept by the Police Unit. Sub-section (2) prescribes a procedure for ascribing the report made under sub-section (1). As per sub-section (3) , while ascribing the report, it should be in simple language so the child can understand its contents being recorded as it is. As per subsection (4), if necessary, the translator/interpreter may be provided to the child. Looking to the language of sub9 sections (3) and (4), it clearly applies in a case where the report has been lodged by the child and not by the family members. Section 19(5)(6) prescribes special procedure on reporting to the SJPU or local police, and also cast duty on them that if child is in need of care and protection, after recording the reasons in writing, immediate arrangements of such care and protection including admitting the child into shelter home or nearest hospital within 24 hours of report, ought to have been made. Simultaneously, they are supposed to report the matter to the Child Welfare Committee, (in short “CWC”) and also to the Special Court or the Court of Sessions, as the case may be. Sub-section (7) confers protection on a person reporting such offence under sub-section (1) in good faith. 11. Looking to the language of Section 19, it does not specify all the offences under the POCSO Act are cognizable. Simultaneously either Section 19 or other provisions of the POCSO Act also do not specify how and in what manner the investigation on reporting of commission of offence under sub-section (1) of Section 19 of POCSO Act be made by the police. Indeed, looking to the language of Section 19, it is true that the provisions of the POCSO Act override the provisions of Cr.P.C. being special enactment only to the extent of having corresponding provision. But POCSO Act does not specify how and in what manner the investigation on reporting of the offences ought to be made. In contrast, Chapter XII of Cr.P.C. deals with investigation also after receiving information in a cognizable or non-cognizable offences. The power of investigation has been given to the police officer as per Section 156 and the said officer shall make the investigation following the procedure as prescribed under Section 157 in case of cognizable offences. In noncognizable offences, the information may be recorded under Section 155(1) of Cr.P.C. by an officer in-charge of a police station within whose limit the offence is committed. He shall enter the substance of information in a book to be kept by such officer in such form as State Government may prescribe in this behalf, and shall refer the informant to the Magistrate having power to try such case. The said Magistrate may pass an order for investigation which shall be abided by the police officer and shall exercise the same power except the power of arrest without warrant, as he may exercise in investigation of cognizable offences. Otherwise, in a non-cognizable offence, the police officer is not supposed to investigate without the order of Court. Thus, in absence of having any procedure for investigation under the POCSO Act, either for cognizable or noncognizable offences, as mandated by sub-section (2) of Section 4 of Cr.P.C., the procedure prescribed in Cr.P.C. ought to be followed in the matter of investigation enquiring into and trial. Section (5) of Cr.P.C. is a saving clause by which the procedure prescribed in the special enactment will prevail otherwise in absence of the provision and the procedure specified in Cr.P.C. may be applicable. 12. After the discussion to the basic provisions of Cr.P.C. and POCSO Act, the order passed by the Trial Court, relying upon the judgment of Delhi High Court in the case of Santosh Kumar Mandal (supra) in paragraph 10 is required to be examined. On perusal of the said judgment of Delhi High Court, it reveals Hon’ble Single Judge made a sweeping observation while dealing with the case of Section 12 in reference to Section 19 and said all the offences punishable under the POCSO Act are cognizable in nature. The said observation does not appear to be in consonance to the language of Section 19 of POCSO Act. After perusal of the facts and findings of the said case, it is suffice to say that the Delhi High Court dealt with a case in which the sentence extendable up to three years was there and weighed with the principle that the sentence maximum so prescribed can be looked into to decide the cognizability or non-cognizability. Therefore, under the said impression, the observation made by the High Court that all the offences under the POCSO Act are cognizable, which, in my opinion, can not be said to be correct view. 13. The matter with respect to cognizability or noncognizability, the Division Bench judgment of Rajasthan High Court in Criminal Reference No. 1 of 2020, titled Nathu Ram & Ors. vs. State of Rajasthan & Anr., 2021(1) RLW 211 may be relevant, wherein the question posed for answer was as under: “What would be the nature of an offence (whether cognizable or non-cognizable) for which imprisonment “may extend to three years” is provided and no stipulation is made in the statute regarding it being cognizable/non-cognizable.” 14. The High Court, considering all the provisions and also the judgments of this Court in the cases of Rajiv Chaudhary vs. State (NCT) of Delhi, AIR 2001 SC 2369 and Rakesh Kumar Paul vs. State of Assam, (2017) 15 SCC 67, has answered the Thus, the classification made as aforesaid, for determination of nature of offence whether it is cognizable or noncognizable, the maximum punishment that may be awarded for particular offence, is relevant and not the minimum sentence. 25. Accordingly, the reference is answered in terms that unless otherwise provided under the relevant statute, the offences under the laws other than IPC punishable with imprisonment to the extent of three years, shall fall within the classification II of offences classified under Part II of First Schedule and thus, shall be cognizable and non-bailable. Consequently, the offence under Section 91(6)(a) of the Act of 1956 shall be cognizable and 15. Thus, as per the discussion made hereinabove, it is to conclude that the Delhi High Court’s judgment of Santosh Kumar Mandal (supra) deals with an offence of Section 12 wherein maximum sentence prescribed was extendable up to 3 years, however the said offence was found cognizable. It is to state that the observation made in the said judgment that all offences under POCSO Act are cognizable, is in my humble opinion not justified without taking note of the provisions of Cr.P.C. It is true that to decide the cognizability and non-cognizability, the maximum sentence prescribed for the offence would be taken into consideration, but if the sentence prescribed for the offence is less than 3 years then those offences of POCSO Act would be non-cognizable. It is clarified, Section 19 of the POCSO Act overrides the provisions of Cr.P.C. only to the extent of reporting the matters to the police or SJPU and other ancillary points so specified in Section 19. 16. As per above discussion, the offence under Section 23 is non-cognizable and Section 19 or other provisions of POCSO Act do not confer power for investigation except to specify the manner of reporting the offence. However, as concluded as per sub-section 2 of Section 4 and applying Section 5 savings clause of Cr.P.C., in absence of having any provision in special enactment, the Cr.P.C. would apply. 17. In the said context, it is required to be seen, what may be the mode of investigation as per the provisions of Cr.P.C. in non-cognizable cases. As per Chapter XII of Cr.P.C., under Section 154, the F.I.R. in a cognizable offence may be registered by the in-charge of the police station and reduce so in writing. Section 155 prescribes the information as to non-cognizable cases and manner of investigation of such cases. Section 156 provides the power to investigate a cognizable case to a police officer while Section 157 specifies a procedure for investigation. On perusal thereto, it is apparent that the officer in-charge of the police station is having power to investigate any cognizable case without the order of the Magistrate and while investigating the same, he shall forthwith report the same to the Magistrate who is having power to take cognizance of such offence and he may also relegate the said investigation as prescribed in the Cr.P.C. or as per the notification issued by the State Government. Therefore, it is clear that in the cases where the commission of cognizable offence is there, the officer in-charge of the police station is competent without the order of Magistrate, but in case of non-cognizable offences, after taking the report, the officer in-charge shall refer the informant to the Magistrate as per section 155(1). The language of Section 155(2) makes it clear and in terms it is mandatory that no police officer shall investigate a noncognizable case without the order of the Magistrate. Therefore, the said provision is mandatory and required to be complied with prior to investigating a non-cognizable offence. Learned counsel for the appellant has placed reliance on the judgment of this Court in Keshav Lal Thakur vs. State of Bihar, (1996) 11 SCC 557. In the said case, offence under Section 31 of Representation of People’s Act, 1950, was alleged to have been committed. After investigation, a final report was submitted praying for discharge by police on which Magistrate took cognizance, which was challenged before High Court under Section 482 and the petition was dismissed, which was assailed before this Court. This Court “3. We need not go into the question whether in the facts of the instant case the above view of the High Court is proper or not for the impugned proceeding has got to be quashed as neither the police was entitled to investigate into the offence in question nor the Chief Judicial Magistrate to take cognizance upon the report submitted on completion of such investigation. On the own showing of the police, the offence under Section 31 of the Act is non cognizable and therefore the police could not have registered a case for such an offence under Section 154 Cr.P.C. Of course, the police is entitled to investigate into a non-cognizable offence pursuant to an order of a competent Magistrate under Section 155 (2) Cr.P.C., but, admittedly, no such order was passed in the instant case. That necessarily means, that neither the police could investigate into the offence in question nor submit a report on which the question of taking cognizance could have arisen. While on this point, it may be mentioned that in view of the explanation to Section 2(d) Cr.P.C., which defines ‘complaint’, the police is entitled to submit, after investigation, a report a relating to a non-cognizable offence in which case such a report is to be treated as a ’complaint’ of the police officer concerned, but that explanation will not be available to the prosecution here as that related to a case where the police initiates investigation into a cognizable offence – unlike the present one – but ultimately finds that only a non- cognizable offence has been made out. On perusal of the said, it is clear that the view taken by High Court upholding the order taking cognizance by Magistrate was not found justified on the ground that the police was not entitled to investigate into the offence and upon such a report of the police officer taking cognizance after completion of investigation by the Magistrate was also not justified. The Court observed that the offence being non-cognizable, the police is entitled to investigate such offence pursuant to an order of competent Magistrate specified under Section 155(2) of Cr.P.C. But admittedly, no such order was passed in the case, therefore, this Court said that the recourse as taken is not justified and quashed the impugned proceedings. Learned counsel distinguishing the judgment of Fertico Marketing and Investment Private Limited & Ors. vs. Central Bureau of Investigation & Anr., (2021) 2 SCC 525, has relied upon the judgment of State of Punjab vs. Davinder Pal Singh Bhullar, (2011) 14 SCC 770 to contend that if initial action itself is illegal, all subsequent actions emanating from that act are also a nullity, however, prayed for quashment of proceedings. 18. Per contra, learned counsel for the respondent State relied upon the judgment of Fertico (supra) to contend that seeking consent of the State Government under Section 6 of Delhi Special Police Establishment Act, 1946 to investigate the offence, if not taken would not be an impediment to vitiate the trial unless there is a miscarriage of justice. After perusal of the said judgment, it is revealed that the said judgment relies upon the judgment of 3-Judge bench of this Court in H.N. Rishbud & Inder Singh vs. State of Delhi, AIR 1955 SC 196 wherein paras 9 and 10 embark upon the niceties of the law relating to the said issue and those are reproduced as thus: “9. The question then requires to be considered whether and to what extent the trial which follows such investigation is vitiated. Now, trial follows cognizance and cognizance is preceded by investigation. This is undoubtedly the basic scheme of the Code in respect of cognizable cases. But it does not necessarily follow that an invalid investigation nullifies the cognizance or trial based thereon. Here we are not concerned with the effect of the breach of a mandatory provision regulating the competence or procedure of the Court as regards cognizance or trial. It is only with reference to such a breach that the question as to whether it constitutes an illegality vitiating the proceedings or a mere irregularity arises. A defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a police report which results from an investigation is provided in Section 190 of the Code of Criminal Procedure as the material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance. Section 190 of the Code of Criminal Procedure is one out of a group of sections under the heading “Conditions requisite for initiation of proceedings”. The language of this section is in marked contrast with that of the other sections of the group under the same heading i.e. Sections 193 and 195 to 199. These latter sections regulate the competence of the Court and bar its jurisdiction in certain cases excepting in compliance therewith. But Section 190 does not. While no doubt, in one sense, clauses (a), (b) and (c) of Section 190(1) are conditions requisite for taking of cognizance, it is not possible to say that cognizance on an invalid police report is prohibited and is therefore a nullity. Such an invalid report may still fall either under clause (a) or (b) of Section 190(1), (whether it is the one or the other we need not pause to consider) and in any case cognizance so taken is only in the nature of error in a proceeding antecedent to the trial. To such a situation Section 537 of the Code of Criminal Procedure which is in the following terms is attracted: “Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any enquiry or other proceedings under this Code, unless such error, omission or irregularity, has in fact occasioned a failure of justice.” If, therefore, cognizance is in fact taken, on a police report vitiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. That an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court for trial is well settled as appears from the cases in Prabhu v. Emperor [AIR 1944 Privy Council 73] and Lumbhardar Zutshi v. King [AIR 1950 Privy Council 26] . These no doubt relate to the illegality of arrest in the course of investigation while we are concerned in the present cases with the illegality with reference to the machinery for the collection of the evidence. This distinction may have a bearing on the question of prejudice or miscarriage of justice, but both the cases clearly show that invalidity of the investigation has no relation to the competence of the Court. We are, therefore, clearly, also, of the opinion that where the cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless miscarriage of justice has been caused thereby. 10. It does not follow, however, that the invalidity of the investigation is to be completely ignored by the Court during trial. When the breach of such a mandatory provision is brought to the knowledge of the Court at a sufficiently early stage, the Court, while not declining cognizance, will have to take the necessary steps to get the illegality cured and the defect rectified, by ordering such reinvestigation as the circumstances of an individual case may call for. Such a course is not altogether outside the contemplation of the scheme of the Code as appears from Section 202 under which a Magistrate taking cognizance on a complaint can order investigation by the police. Nor can it be said that the adoption of such a course is outside the scope of the inherent powers of the Special Judge, who for purposes of procedure at the trial is virtually in the position of a Magistrate trying a warrant case. When the attention of the Court is called to such an illegality at a very early stage it would not be fair to the accused not to obviate the prejudice that may have been caused thereby, by appropriate orders, at that stage but to leave him to the ultimate remedy of waiting till the conclusion of the trial and of discharging the somewhat difficult burden under Section 537 of the Code of Criminal Procedure of making out that such an error has in fact occasioned a failure of justice. It is relevant in this context to observe that even if the trial had proceeded to conclusion and the accused had to make out that there was in fact a failure of justice as the result of such an error, explanation to Section 537 of the Code of Criminal Procedure indicates that the fact of the objection having been raised at an early stage of the proceeding is a pertinent factor. To ignore the breach in such a situation when brought to the notice of the Court would be virtually to make a dead letter of the peremptory provision which has been enacted on grounds of public policy for the benefit of such an accused. It is true that the peremptory provision itself allows an officer of a lower rank to make the investigation if permitted by the Magistrate. But this is not any indication by the Legislature that an investigation by an officer of a lower rank without such permission cannot be said to cause prejudice. When a Magistrate is approached for granting such permission he is expected to satisfy himself that there are good and sufficient reasons for authorising an officer of a lower rank to conduct the investigation. The granting of such permission is not to be treated by a Magistrate as a mere matter of routine but it is an exercise of his judicial discretion having regard to the policy underlying it. In our opinion, therefore, when such a breach is brought to the notice of the Court at an early stage of the trial the Court have to consider the nature and extent of the violation and pass appropriate orders for such reinvestigation as may be called for, wholly or partly, and by such officer as it considers appropriate with reference to the requirements of Section 5-A of the Act. It is in the light of the above considerations that the validity or otherwise of the objection as to the violation of Section 5(4) of the Act has to be decided and the course to be adopted in these proceedings, determined. 19. On perusal thereto, it is clear that the ‘trial flows cognizance and cognizance is preceded by investigation ’, which is the basic scheme for the Court to cognizable cases. It is observed that, it does not necessarily follow that an invalid investigation nullifies the cognizance or trial based thereon. Then Court proceeded to decide the breach of mandatory provisions regulating the competence or procedure of the Court as regards cognizance or trial. In the said context, in reference to Sections 190 and 537 of Cr.P.C., the Court said that, for breach of mandatory provision relating to investigation, it cannot be set-aside unless the illegality in the investigation can be shown to have been brought miscarriage of justice as it does not affect the competence and jurisdiction of trial court. The Court further observed that, if the breach of mandatory provision is brought to the knowledge of Court at sufficiently early stage, the Court while not declining cognizance will have to take necessary steps to get illegality cured and the defect rectified by ordering such reinvestigation looking into circumstances of case. If the attention of the Court is called to such illegality at very early stage, it would be fair to the accused not to obviate the prejudice that may have been caused thereby, by passing the appropriate orders at that stage and not leave him to ultimate remedy of waiting till conclusion of trial. The Court said that granting of such permission is not to be taken by Magistrate as a matter of routine but it is in exercise of his judicial discretion having regard to the policy underlying it. The Court observed that when such a breach is brought to the notice of court at early stage of trial, the Court has to consider the nature and extent of the violation and pass appropriate order for re-investigation as may be called for, wholly or partly or whatever is appropriate. 20. It is not out of place to mention that judgments of Fertico (supra) and H.N. Rishbud (supra) are the cases in which this Court has dealt with the violation of the procedure of investigation in the case of cognizable offences, while in the case at hand, the offence is noncognizable. Therefore, to investigate such an offence, the order as mandated under Section 155 (2) of Cr.P.C. is necessary, prior to investigating the offence. It is made clear here that, as per Section 155(2), for non- cognizable offence, the order is required to be taken from the Magistrate but in the light of Sections 2(l) and 28 of POCSO Act, the Special Courts are required to be designated to deal with offences under POCSO Act and they have been authorized under Section 33, conferring a power to such Special Courts to take cognizance. Therefore, the word used in Section 155(2) be read as “Special Courts” in place of “Magistrate”, which may take cognizance of any offence under POCSO Act. Therefore, the procedure of Section 155(2) is required to be followed in an offence of POCSO Act under Section 23 which is non-cognizable and the Special Court is required to look into the procedure followed in the investigation. The order of taking cognizance passed by the Special Court after filing the charge-sheet passed on 19.04.2018, merely reflect that after perusal of documents as per list which is verified, the Court has taken cognizance. The Court has not looked into the vital aspect of following the procedure of Section 155(2) of Cr.P.C. Therefore, at the earliest when the application for discharge was filed, it was dismissed by order impugned dated 28.08.2020 with the incorrect notion regarding overriding effect to the provision of Section 19 of POCSO Act, confirmed by High Court. In my considered opinion, the order taking cognizance and to pass consequential order rejecting the application for discharge is not in accordance with law. The view taken by this Court in case of Keshav Lal Thakur (supra) relating to a case of noncognizable offence, is aptly applicable in the facts of the present case. 21. In view of the above, this appeal is allowed. Order impugned taking cognizance and consequential orders passed by the Trial Court which is affirmed by the High Court are hereby set-aside. The Special Court is at liberty to follow the procedure prescribed in the matter of investigation of non-cognizable offences. Hon’ble Ms. Justice Indira Banerjee pronounced her judgment dismissing the appeal in terms of the signed reportable judgment. Hon’ble Mr. Justice J.K. Maheshwari pronounced a separate judgment, disagreeing with the view expressed by Hon’ble Ms. Justice Indira Banerjee and allowed the appeal. Since the Bench has not been able to agree, the Registry is directed to forthwith place the matter before Hon’ble the Chief Justice of India, for assignment before an appropriate Bench.
Two judges in the Supreme Court disagreed on a key point. They couldn't decide if a certain rule, Section 155(2) of the Code of Criminal Procedure (CrPC), should apply when police investigate a crime mentioned in Section 23 of the Protection of Children from Sexual Offences Act, 2012 (POCSO). Section 155(2) of the CrPC says that police need a judge's permission (from a Magistrate) to look into certain crimes, called "non-cognizable offences." Section 23 of the POCSO Act makes it a crime to reveal the name or identity of a child who has been a victim of a sexual offense. Justices Indira Banerjee and JK Maheshwari were looking at a case involving the editor of a newspaper. This editor was accused of breaking Section 23 of the POCSO Act because his paper published the identity of a 16-year-old girl who was a victim of a sexual crime. The editor argued that the police started their investigation without getting the judge's permission, which he believed was required by Section 155(2) CrPC. He asked a lower judge (Magistrate) to drop the charges, but the judge said no. He then took his case to a higher court (High Court), but he lost there too. So, the case ended up at the Supreme Court. The Supreme Court explained the main legal question in the case: "Should the rule in Section 155(2) of the CrPC apply when police investigate a crime under Section 23 of POCSO? Also, should a special court dismiss a case and let the accused person go free, following Section 227 of the CrPC, just because the police didn't get a judge's permission to investigate the crime?" Justice Banerjee believed that the police did not need a judge's permission to investigate crimes under Section 23 of POCSO. However, Justice Maheshwari disagreed and thought permission was necessary. Because the two judges had different opinions, the case has been sent to the Chief Justice of India. The Chief Justice will now assign it to a larger group of judges to make a final decision. Justice Banerjee's analysis The lawyer for the newspaper editor, Devadatt Kamat, argued that the crime under Section 23 of POCSO is a "non-cognizable offence." He pointed out that the maximum punishment for this crime is one year in jail. Under a specific part of the CrPC, crimes that carry a sentence of less than three years in jail are considered "non-cognizable." Kamat also argued that Section 19 of the POCSO Act, which outlines how POCSO crimes should be investigated, does not specifically mention Section 23 crimes. Since Section 23 doesn't say it's separate from the CrPC rules, he argued that the mandatory rule of Section 155(2) CrPC must apply to Section 23. Justice Banerjee did not agree that Section 19 leaves out Section 23. She said that the wording of Section 19 of POCSO makes it very clear that it covers all crimes under the Act, including those under Section 23. She pointed to Section 19(1), which says it applies to "any person who has apprehension that an offence under this Act is likely to be committed or has knowledge that such an offence has been committed." She explained that "offence" here means all crimes under POCSO, like publishing a news report that reveals the identity of a child who was sexually assaulted. Justice Banerjee also pointed out that according to Section 19(5), if the police believe a child victim needs care and protection, they must immediately arrange for it. She added that actions under Section 19(5) must be taken very quickly. Such actions naturally involve finding out if a crime happened and if the child needs special help. Justice Banerjee also mentioned that Section 19(6) states police must report the situation to the Child Welfare Committee and a special court right away. She said this report should include whether the child needs care and protection and what steps have been taken. A child whose identity is revealed in the media might very much need care and protection. Revealing a child's identity could also put the child victim at risk of revenge from the people who committed the crime or their partners. Justice Banerjee pointed out that if lawmakers had wanted Section 155(2) CrPC to apply to Section 23 of POCSO, they would have said so clearly. She noted that other parts of the POCSO Act (Sections 31 and 33(9)) do specifically include rules from the CrPC (Sections 4(1) and 4(2)). Justice Banerjee also talked about how important it is to protect a child's dignity and privacy. She stressed that "Every child has a basic human right to live with dignity, to grow up in a healthy environment for their mind and body, and to be treated equally without unfair treatment. These basic rights include the right to privacy. India's Constitution guarantees these fundamental rights to everyone, including children, such as the right to live with dignity, personal freedom, privacy, equality, and protection against unfair treatment or exploitation." Justice Banerjee repeated that a child whose identity is revealed in a crime under Section 23 of POCSO might need special protection, care, or even a safe place to live. This means a quick investigation is vital to follow Sections 19(5) and 19(6) of POCSO. With these points, she rejected the lawyer's arguments. Justice Maheshwari's analysis Justice Maheshwari, however, pointed out that Section 19 doesn't say that all POCSO crimes are "cognizable" (meaning police can investigate without a judge's order). He also noted that Section 19 doesn't explain how investigations should be done once a crime is reported. Justice Maheshwari explained that because the POCSO Act doesn't provide a specific way to investigate crimes (whether cognizable or non-cognizable), the rules from the CrPC must be followed for investigations and trials. He referred to Section 4(2) of the CrPC. He also mentioned Section 5 of the CrPC, which acts as a "saving clause" meaning that if a special law (like POCSO) has its own rule, that rule takes priority. But if the special law doesn't have a rule, then the CrPC rules apply. He concluded that the crime under Section 23 is non-cognizable. Since Section 19 or other parts of the POCSO Act only describe how to report a crime but not how to investigate it, the CrPC rules must apply. This is based on Section 4(2) and Section 5 (the saving clause) of the CrPC, which state that if a special law doesn't have its own rules, the general CrPC rules step in. Based on past court decisions, Justice Maheshwari stated that Section 155(2) CrPC is a rule that must be followed. Therefore, he believed it applies to crimes under Section 23 of POCSO. He also said that when Section 155(2) refers to a "Magistrate" (a type of judge), for POCSO cases, this should be understood to mean a "Special Court." Justice Maheshwari concluded that the process outlined in Section 155(2) must be followed for non-cognizable crimes under Section 23 of the POCSO Act. He also stated that the Special Court must review whether the proper investigation steps were followed. Matter referred The court order stated, "Since the two judges could not agree, the court's administrative office is instructed to immediately send this case to the Chief Justice of India. The Chief Justice will then assign it to a new, suitable group of judges to make a decision."
2. This appeal is against a judgment and order dated 17th September 2021 passed by the Dharwad Bench of the High Court of Karnataka, dismissing Criminal Petition No.101420/2020 filed by the Appellant under Section 482 of the Code of Criminal Procedure (hereinafter referred to as “the Cr.P.C.”), and upholding an order dated 19th April 2018 passed by the Principal District Judge, Uttar Kannada, Karwar, taking cognizance against the Appellant of offence under Section 23 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “POCSO”). 3. The short question of law involved in this appeal is, whether Section 155(2) of the Cr.P.C. applies to the investigation of an offence under Section 23 of POCSO? Is the Special Court debarred from taking cognizance of an offence under Section 23 of POCSO and obliged to discharge the accused under Section 227 of the Cr.P.C., only because of want of permission of the jurisdictional Magistrate to the police, to 4. The Appellant is the Editor of Karavali Munjavu Newspaper. On or about 27th October 2017, a news report was published in the Newspaper, Karavali Munjavu, regarding the sexual harassment of a 16 year old girl. The victim was named in the said report. “23. Procedure for media.—(1) No person shall make any report or present comments on any child from any form of media or studio or photographic facilities without having complete and authentic information, which may have the effect of lowering his reputation or infringing upon his privacy. (2) No reports in any media shall disclose, the identity of a child including his name, address, photograph, family details, school, neighbourhood or any other particulars which may lead to disclosure of identity of the child: Provided that for reasons to be recorded in writing, the Special Court, competent to try the case under the Act, may permit such disclosure, if in its opinion such disclosure is in the interest of the child. (3) The publisher or owner of the media or studio or photographic facilities shall be jointly and severally liable for the acts and omissions of his employee. (4) Any person who contravenes the provisions of sub-section (1) or sub-section (2) shall be liable to be punished with imprisonment of either description for a period which shall not be less than six months but which may extend to one year or with fine or with both.” 6. On or about 30th October 2017, the victim’s mother lodged a complaint, inter alia, against the Appellant under Section 23 of POCSO in the Siddapur Police Station, pursuant to which a criminal case being Case No.203/2017 was started against the 7. After investigation, the Police filed a report under Section 173 of the Cr.P.C. in the Court of the Principal District Judge, Uttar Kannada, Karwar, on 31st December 2017. By an order dated 19th April 2018, the Court of the Principal District Judge, Uttar Kannada, Karwar, took cognizance of the offence alleged and directed that summons be issued to the Appellant. 8. Thereafter, the Appellant filed an application for discharge under Section 227 of the Cr.P.C. on the purported ground that an offence under Section 23 of POCSO being non-cognizable, the police could not have investigated the offence without obtaining an order of the Magistrate under Section 155(2) of the Cr.P.C. The Trial Court dismissed the application of the Appellant, whereupon the Appellant filed a Criminal Petition in the High Court under Section 482 of the Cr.P.C. 9. By the impugned judgment and order dated 17th September 2021, the High Court has dismissed the Criminal Petition, holding that the non obstante provision of Section 19 of POCSO overrides the provisions of the Cr.P.C., including Section 155 thereof. The High Court refused to quash the proceedings initiated against the Appellant under Section 23 of POCSO. 10. Mr. Devdutt Kamat, Senior Counsel appearing on behalf of the Appellant submitted that the provisions of the Cr.P.C. are applicable to all offences punishable by any law for the time being in force, except where a special law provides for a special procedure, overriding the general procedure under the Cr.P.C. 11. In support of his aforesaid submissions, Mr. Kamat referred to Section 2(n) of the Cr.P.C., which defines ‘offence’ to mean any act or omission made punishable by any law for the time being in force. Referring to Section 4 of the Cr.P.C. particularly sub- section (2) thereof, Mr. Kamat emphasized that all offences, including an offence under Section 23 of POCSO have to be investigated and tried in accordance with the “4. Trial of offences under the Indian Penal Code and other laws.—(1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.” 13. Mr. Kamat further submitted that an offence under Section 23 of POCSO, which is punishable with maximum imprisonment which may extend to one year, is a non- cognizable and bailable offence, as per Section 2(l) read with Part II of the First Schedule of the Cr.P.C., extracted hereinbelow for convenience: “2(l) “non-cognizable offence” means an offence for which, and “noncognizable case” means a case in which, a police officer has no authority to arrest without warrant;” Offence Cognizable or Bailable or nonbailable By what Court triable If punishable with Cognizable Non-Bailable Court of Session If punishable with Non-cognizable Any Magistrate If punishable with imprisonment for less Bailable imprisonment for less 14. Mr. Kamat submitted that the mandatory provision of Section 155(2) of the Cr.P.C. makes it obligatory on a Police Officer to investigate a non-cognizable case with prior permission of the Magistrate, failing which the proceedings are liable to be quashed. The police, therefore, have no jurisdiction to investigate into an offence under Section 23 of POCSO, without prior sanction of the jurisdictional Magistrate. 15. Mr. Kamat took this Court through Section 155 of the Cr.P.C., set out hereinbelow: “155. Information as to non-cognizable cases and investigation of such cases.—(1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the (2) No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial. (3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case. (4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable.” 16. Mr. Kamat emphatically argued that no Police Officer could investigate a non- cognizable offence, without the order of a Magistrate having power to try such case, or commit the case for trial, in view of the express bar of Section 155(2) of the Cr.P.C. 17. Mr. Kamat argued that, from the language and tenor of POCSO read with the Cr.P.C., it is patently clear that Legislature has intended that the provisions of the Cr.P.C. would have to be followed in respect of an offence under POCSO and more so in respect of an offence under Section 23 of POCSO. Mr. Kamat submitted that unlike Section 19, Section 23 of POCSO does not exclude the application of the provisions of the Cr.P.C. 18. Mr. Kamat submitted that Section 31 read with Section 33(9) of POCSO categorically makes the provisions of the Cr.P.C. applicable to proceedings under POCSO before the Special Court. In the context of his submissions, Mr. Kamat referred to Section 31 and Section 33(9) of POCSO extracted hereinbelow: “31. Application of Code of Criminal Procedure, 1973 to proceedings before a Special Court.—Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) (including the provisions as to bail and bonds) shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Sessions and the person conducting a prosecution before a Special Court, shall be deemed to be a Public Prosecutor. 33. Procedure and powers of Special Court.- (9) Subject to the provisions of this Act, a Special Court shall, for the purpose of the trial of any offence under this Act, have all the powers of a Court of Session and shall try such offence as if it were a Court of Session, and as far as may be, in accordance with the procedure specified in the Code of Criminal Procedure, 1973 (2 of 1974) for trial before a Court of Session.” 19. Mr. Kamat emphatically argued that the finding of the High Court that the provisions of the Cr.P.C. were excluded for the purpose of Section 23 of POCSO by reason of Section 19 of POCSO, was erroneous. He emphatically argued: (i) Section 23 of POCSO does not exclude the provisions of Cr.P.C. Section 19 of POCSO, which excludes the Cr.P.C., in respect of reporting of an offence, does not apply to an offence under Section 23 of POCSO. (ii) Section 31 of POCSO makes the Cr.P.C. applicable to proceedings before the Special Court under POCSO, unless specifically excluded. This provision has not been noticed by the High Court. (iii) Section 33 (9) of POCSO provides that the trial of offences is to be conducted in accordance with the procedure specified in the Cr.P.C. This Provision has also not been noticed by the High Court. 20. In support of his argument that proceedings against the Appellant were liable to be quashed for want of permission of the jurisdictional Magistrate under Section 155(2) of the Cr.P.C., Mr. Kamat cited Keshav Lal Thakur v. State of Bihar, (1996) 11 SCC 557 where this Court held: “3. …On the own showing of the police, the offence under Section 31 of the Act is non- cognizable and therefore the police could not have registered a case for such an offence under Section 154 CrPC. Of course, the police is entitled to investigate into a non- cognizable offence pursuant to an order of a competent Magistrate under Section 155(2) CrPC but, admittedly, no such order was passed in the instant case. That necessarily means, that neither the police could investigate into the offence in question nor submit a report on which the question of taking cognizance could have arisen…” 21. Mr. Kamat argued that in Keshav Lal Thakur (supra) the facts and circumstances were similar to the facts and circumstances of this case where the chargesheet had been filed without any order of the competent Magistrate under Section 155 (2) of the Cr.P.C. and cognizance had also been taken. This Court categorically held that the entire investigation was vitiated by want of permission under Section 155(2) of the Cr.P.C. 22. Mr. Kamat also cited State of Punjab v. Davinder Pal Singh Bhullar and Others, (2011) 14 SCC 770 where this Court held: “107. It is a settled legal proposition that if initial action is not in consonance with law, all subsequent and consequential proceedings would fall through for the reason that illegality strikes at the root of the order. In such a fact situation, the legal maxim sublato fundamento cadit opus meaning thereby that foundation being removed, structure/work falls, comes into play and applies on all scores in the present case. 108. In Badrinath v. Govt. of T.N. [(2000) 8 SCC 395 : 2001 SCC (L&S) 13 : AIR 2000 SC 3243] and State of Kerala v. Puthenkavu N.S.S. Karayogam [(2001) 10 SCC 191] this Court observed that once the basis of a proceeding is gone, all consequential acts, actions, orders would fall to the ground automatically and this principle is applicable to judicial, quasi-judicial and administrative proceedings equally. 109. Similarly in Mangal Prasad Tamoli v. Narvadeshwar Mishra [(2005) 3 SCC 422] this Court held that if an order at the initial stage is bad in law, then all further proceedings, consequent thereto, will be non est and have to be necessarily set aside. 110. In C. Albert Morris v. K. Chandrasekaran [(2006) 1 SCC 228] this Court held that a right in law exists only and only when it has a lawful origin. (See also Upen Chandra Gogoi v. State of Assam [(1998) 3 SCC 381 : 1998 SCC (L&S) 872] , Satchidananda Misra v. State of Orissa [(2004) 8 SCC 599 : 2004 SCC (L&S) 1181] , SBI v. Rakesh Kumar Tewari [(2006) 1 SCC 530 : 2006 SCC (L&S) 143] and Ritesh Tewari v. State of U.P. [(2010) 10 SCC 677 : (2010) 4 SCC (Civ) 315 : AIR 2010 SC 3823] 111. Thus, in view of the above, we are of the considered opinion that the orders impugned being a nullity, cannot be sustained. As a consequence, subsequent proceedings/ orders/FIR/ investigation stand automatically vitiated and are liable to be declared non est.” 23. Relying on the aforesaid judgment, Mr. Kamat emphatically argued that the initial action of investigation against the Appellant, of offence under Section 23 of POCSO, being illegal, all subsequent actions would be vitiated. 24. Mr. Padhi, appearing for the State of Karnataka, submitted that POCSO had been enacted by Parliament with the laudatory object of punishing sexual offences against children. Section 23 of POCSO prevents publication of the identity of the victim. In this case, the name of the victim had been published in the news report. 25. Mr. Padhi next argued that POCSO being a special enactment, it overrides the general procedural law. Moreover, Section 19 of POCSO begins with a non obstante clause which reads “Notwithstanding anything contained in the Code of Criminal Procedure, 1973….”. This clearly shows that Sections 154 and 155 of the Cr.P.C. have no application to an offence under Section 23 of POCSO. The police has duty under Section 19(1) and 19(2)(c) of POCSO to record the information given by any person having knowledge that a crime under POCSO is likely to be committed or has been committed. Mr. Padhi submitted that Section 19 of POCSO applies to any offence under POCSO. Section 19 of POCSO does not exclude offence under Section 23 of POCSO. 26. Mr. Padhi further submitted that the case had gone beyond the stage of investigation and chargesheet had been filed. The Court had taken cognizance. Mr. Padhi argued that even assuming, for the sake of argument, that the police were required to take prior permission of the concerned jurisdictional Magistrate before proceeding with the investigation, that in itself does not vitiate the order of the Court taking cognizance and framing charges. The accused has to demonstrate grave prejudice, which the Appellant has not been able to do. 27. Mr. Padhi cited Fertico Marketing and Investment Private Limited and Others v. Central Bureau of Investigation and Another, (2021) 2 SCC 525 where “9. … If, therefore, cognizance is in fact taken, on a police report vitiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. That an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court for trial is well settled as appears from the cases in Parbhu v. King Emperor [Parbhu v. King Emperor, 1944 SCC OnLine PC 1 : (1943-44) 71 IA 75 : AIR 1944 PC 73] and Lumbhardar Zutshi v. R. [Lumbhardar Zutshi v. R., 1949 SCC OnLine PC 64 : (1949-50) These no doubt relate to the illegality of arrest in the course of investigation while we are concerned in the present cases with the illegality with reference to the machinery for the collection of the evidence. This distinction may have a bearing on the question of prejudice or miscarriage of justice, but both the cases clearly show that invalidity of the investigation has no relation to the competence of the Court. We are, therefore, clearly, also, of the opinion that where the cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless miscarriage of justice has been caused thereby.” It could thus be seen that this Court has held that the cognizance and the trial cannot be set aside unless the illegality in the investigation can be shown to have brought about miscarriage of justice. It has been held that the illegality may have a bearing on the question of prejudice or miscarriage of justice but the invalidity of the investigation has no relation to the competence of the court.” 28. Mr. Padhi submitted that it is settled law that an order taking cognizance of an offence alleged is not vitiated by any defect in investigation. Section 462 read with Section 465 of the Cr.P.C. protects the trial from any defect in investigation. Distinguishing Keshav Lal Thakur (supra) cited by Mr. Kamat, Mr. Padhi argued that the same does not deal with the earlier judgment of this Court in H. N. Rishbud and Others v. State of Delhi, (1955) 1 SCR 1150. Mr. Padhi submitted that the judgment in Davinder Pal Singh Bhullar (supra) cited by Mr. Kamat has no application in the facts and circumstances of this case since the issue was as follows: “2. The appeals herein raise peculiar substantial questions of law as to whether the High Court can pass an order on an application entertained after final disposal of the criminal appeal or even suo motu particularly, in view of the provisions of Section 362 of the Code of Criminal Procedure, 1973 (hereinafter called “CrPC”) and as to whether in exercise of its inherent jurisdiction under Section 482 CrPC the High Court can ask a particular investigating agency to investigate a case following a particular procedure through an exceptionally unusual method which is not in consonance with the statutory provisions of 29. In his reply, Mr. Kamat argued that this is not a case of defective investigation as sought to be argued on behalf of the State, but a case of investigation without jurisdiction. Distinguishing Fertico Marketing and Investment Private Limited (supra) cited on behalf of the State, Mr. Kamat argued that defective investigation may not vitiate a trial unless there is miscarriage of justice. In Fertico Marketing and Investment Private Limited (supra) consent under Section 6 of the Delhi Special Police Establishment Act 1946 had subsequently been granted to the CBI after registration of the FIR. 30. Mr. Kamat also argued that Sections 462 and 465 of the Cr.P.C., cited by Mr. Padhi are not attracted in this case. Section 462 relates to inquiry or trial or other proceedings in the wrong place and Section 465 saves an order of a Court of competent jurisdiction in case of any error or irregularity in any sanction for the prosecution, unless the Court is of the opinion that a failure of justice had, in fact, been occasioned. 31. Unlike Section 4(1) of the Cr.P.C., which requires all offences under the Indian Penal Code, 1860 (hereinafter referred to as the “the IPC”) to be investigated, inquired into, tried or otherwise dealt with according to the Cr.P.C., Section 4(2) of the Cr.P.C. requires all offences under any other law to be investigated, inquired into, tried or otherwise dealt with according to the provisions of the Cr.P.C., subject to any enactment for the time being in force, regulating the manner and place of investigating, inquiring into, trying or otherwise dealing with offences. 32. Section 5 of the Cr.P.C. categorically states that nothing in the Cr.P.C. shall, in the absence of a specific provision to the contrary, affect any special law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed by any other law for the time being in force. POCSO is a special law for protection of children against sexual abuse. Section 5 of the Cr.P.C. is set out hereinbelow for convenience: - “5. Saving.—Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.” 33. On a combined reading of Sections 4(1) and (2) with Section 5 of the Cr.P.C., all offences under the IPC are to be investigated into, tried or otherwise dealt with in accordance with the provisions of the Cr.P.C. and all offences under any other law are to be investigated, inquired into, tried or otherwise dealt with, according to the same provisions of the Cr.P.C., subject to any enactment for the time being in force, regulating the manner of investigating, inquiring into, trying or otherwise dealing with such offences. “19. Reporting of offences.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), any person (including the child), who has apprehension that an offence under this Act is likely to be committed or has knowledge that such an offence has been committed, he shall provide such information to,-- (a) the Special Juvenile Police Unit; or (3) Where the report under sub-section (1) is given by a child, the same shall be recorded under subsection (2) in a simple language so that the child understands contents being (4) In case contents are being recorded in the language not understood by the child or wherever it is deemed necessary, a translator or an interpreter, having such qualifications, experience and on payment of such fees as may be prescribed, shall be provided to the child if he fails to understand the same. (5) Where the Special Juvenile Police Unit or local police is satisfied that the child against whom an offence has been committed is in need of care and protection, then, it shall, after recording the reasons in writing, make immediate arrangement to give him such care and protection( including admitting the child into shelter home or to the nearest hospital) within twenty-four hours of the report, as may be prescribed. (6) The Special Juvenile Police Unit or local police shall, without unnecessary delay but within a period of twenty-four hours, report the matter to the Child Welfare Committee and the Special Court or where no Special Court has been designated, to the Court of Session, including need of the child for care and protection and steps taken in this regard. (7) No person shall incur any liability, whether civil or criminal, for giving the information in good faith for the purpose of sub-section (1).” 35. The language and tenor of Section 19 of POCSO and subsections thereof makes it absolutely clear that the said Section does not exclude offence under Section 23 of POCSO. This is patently clear from the language and tenor of Section 19(1), which reads “…. any person who has apprehension that an offence under this Act is likely to be committed or has knowledge that such an offence has been committed……”. The expression “offence” in Section 19 of POCSO would include all offences under POCSO including offence under Section 23 of POCSO of publication of a news report, disclosing the identity of a child victim of sexual assault. 36. Moreover, sub-section (5) of Section 19 of POCSO provides that where the Special Juvenile Police Unit or local police is satisfied that the child against whom an offence has been committed, is in need of care and protection it shall, after recording reasons in writing, make immediate arrangements to give the child such care and protection including admitting the child into a shelter home or hospital within 24 hours of the report. Action under sub-section (5) of Section 19 of POCSO has to be taken with utmost expedition. Such action obviously involves investigation into whether an offence has been committed and whether the child requires special care. 37. Sub-section (6) of Section 19 of POCSO requires the Special Juvenile Police Unit or local police, as the case may be, to report information to the Child Welfare Committee and the Special Court or where no Special Court has been designated to the Court of Sessions without unnecessary delay, within 24 hours from the receipt of information. The report is to include need, if any, of the concerned child for care and protection and steps taken in this regard. A child, whose identity is disclosed in the media may very well be in need of care and protection. Disclosure of the identity of the child in the media may also expose the child victim of sexual offence to vindictive retaliation by the perpetrators of the crime or their accomplices. 38. Section 31 of POCSO, relied upon by Mr. Kamat provides that the provisions of the Cr.P.C., including provisions as to bail and bonds are to apply to the proceedings before a Special Court, and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Sessions and the person conducting prosecution before a Special Court shall be deemed to be a Public Prosecutor. The said Section has nothing to do with reporting or investigation of an offence. Section 33(9) of POCSO extracted hereinabove, which confers powers of a Court of Sessions on the Special Court to try offences under POCSO, also has nothing to do with the reporting or investigation of an offence. Subject to the provisions of POCSO, the Special Court is to try an offence under POCSO, as if it were a Court of Sessions “as far as may be”, in accordance with the procedure specified in the Cr.P.C. for trial before a Sessions Court. Neither Section 31 nor Section 33(9) of POCSO makes any reference to investigation. 39. It is well settled that legislative intent is to be construed from the words used in the statute, as per their plain meaning. Had Legislature intended that the Cr.P.C. should apply to investigation of an offence under Section 23 of POCSO, would specifically have provided so. The expression “investigation” would, as in Section 4(1) or (2) of the Cr.P.C., have expressly been incorporated in Section 31 or Section 33(9) or elsewhere in POCSO. 40. In our society, victims of sexual offence are, more often than not, treated as the abettor, if not perpetrator of the crime, even though the victim may be absolutely innocent. Instead of empathizing with the victim people start finding fault with the victim. The victim is ridiculed, defamed, gossiped about, and even ostracized. 41. Section 228A of IPC makes disclosure of the identity of any person, against whom the offence of rape or any related offence is found to have been committed, punishable with imprisonment of either description for a term which may extend to two years and also liable to fine. 42. Sub-section (2) of Section 327 of the Cr.P.C. requires that the trial of rape be conducted in camera and sub-section (3) of the said Section prohibits the printing or publishing of any matter in relation to proceedings under Sections 376, 376A to 376E of the IPC. 43. Section 74 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as the “JJ Act”) prohibits disclosure of the name, address, school or any other particular, which may lead to the identification of a child in conflict with law or a child in need of care and protection or a child victim or witness of a crime in any newspaper, magazine, news-sheet or audio-visual media or other forms of communication, regarding any inquiry or investigation or judicial procedure, unless for reasons to be recorded in writing, the Board or Committee, as the case may be, holding the inquiry may permit such disclosure, if in its opinion such disclosure is in the best interest of the child. 44. The entire object of provisions such as Section 228A of the IPC, 327(2) of the Cr.P.C., Section 74 of the JJ Act and Section 23 of POCSO is to prevent disclosure of the identity of the victim. The identity of the victim should not be discernible from any matter published in the media. 45. The Charter of the United Nations reaffirms the faith of the peoples of the United Nations in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women. 46. As stated in the Preamble to the Universal Declaration of Human Rights, adopted by the United Nations on 10th December 1948, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family, is the foundation of freedom, justice and peace in the world. Human Rights should be protected by the Rule of Law. 47. As per the Universal Declaration of Human Rights, all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. Nobody is to be subjected, inter alia, to degrading treatment. 48. Article 12 of the Universal Declaration of Human Rights says that no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks on his or her honour and reputation. Everyone has the right to protection of the law against such interference or attacks. 49. Every child has the inalienable human right to live with dignity, grow up and develop in an atmosphere conducive to mental and physical health, be treated with equality and not be discriminated against. The inalienable rights of a child include the right to protection of privacy. The Constitution of India guarantees the aforesaid inalienable and basic rights to all, including children. The right to live with dignity, the right to personal liberty, the right to privacy, the right to equality and/or the right against discrimination, the right against exploitation, are Fundamental Rights guaranteed by Part III of the Constitution of India. 50. The Directive Principles of State Policy and in particular Article 39(f) casts an obligation on the State to ensure that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. For the full and harmonious development of his or her personality, the child should grow up in an atmosphere of happiness, love and understanding and be brought up in the spirit of peace, dignity, tolerance, freedom, equality and solidarity. 51. The United Nations Convention on the Rights of the Child, ratified by India on 11th December 1992, was based on the basic principles, inter alia, of non- discrimination against a child, the best interest of the child, the right of a child to survival and development. The Convention on the Rights of the Child also requires States to undertake all appropriate national, bilateral and multilateral measures to prevent exploitation of children. POCSO not only protects children from sexual offences but also protects the interests of children in general, as victims as well as witnesses. The right of a child to dignity not only requires that the child be protected from offences of sexual assault, sexual harassment and pornography but also requires that the dignity of a child be safeguarded. Disclosure of the identity of a child who is a victim of sexual offences or who is in conflict with the law is in fundamental breach of the right of the child to dignity, the right not to be embarrassed. 52. Article 16 of the Convention on the Rights of the Child provides that no child shall be subjected to arbitrary or unlawful interference with his or her privacy. The child has the right to the protection of the law against such interference. India has ratified the Convention on the Rights of the Child. The J.J. Act and POCSO are in furtherance of the obligations of India under the Convention. The provision of Section 23 of POCSO which protects child victims of sexual abuse from unwarranted intrusion into privacy, harassment and mental agony has to be strictly enforced. The provision cannot be allowed to be diluted. 53. In Nipun Saxena v. Union of India, 2019 (2) SCC 703 this Court held:- “38. No doubt, it is the duty of the media to report every crime which is committed. The media can do this without disclosing the name and identity of the victim in case of rape and sexual offences against children. The media not only has the right but an obligation to report all such cases. However, media should be cautious not to sensationalise the same. The media should refrain from talking to the victim because every time the victim repeats the tale of misery, the victim again undergoes the trauma which he/she has gone through. Reportage of such cases should be done sensitively keeping the best interest of the victims, both adult and children, in mind. Sensationalising such cases may garner television rating points (TRPs) but does no credit to the credibility of the media.” 54. In Nipun Saxena (supra), this Court directed: - “50. In view of the aforesaid discussion, we issue the following directions: 50.1. No person can print or publish in print, electronic, social media, etc. the name of the victim or even in a remote manner disclose any facts which can lead to the victim being identified and which should make her identity known to the public at large. ” 55. The judgment of this Court in Keshav Lal Thakur (supra) is clearly distinguishable, in that this Court was dealing with investigation into an offence under Section 31 of the Representation of People Act, 1950. The Representation of People Act, 1950 does not contain any provision regulating the manner or place of investigation, or inquiry into any crime, or otherwise dealing with any offence under the said Act. 56. There can be no dispute with the proposition of law laid down in paragraphs 107 to 111 of Davindar Pal Singh Bhullar (supra) cited by Mr. Kamat. In this case for the reasons discussed above, it cannot be said that the impugned order of the Special Court taking cognizance of the complaint against the Appellant suffers from any such illegality that strikes at the root of the said order. The legal maxim “sublato fundamento cadit opus” is not attracted. 57. Mr. Kamat’s argument that Section 19 of POCSO does not include offence under Section 23 of POCSO is unsustainable in law and not supported by any cogent reasons. As observed above, the words “offence under this Act” in Section 19(1) of POCSO makes it clear that Section 19 includes all offences under POCSO including offence under Section 23 of POCSO. It is reiterated at the cost of repetition that a child against whom offence under Section 23 of POCSO has been committed, by disclosure of her identity, may require special protection, care and even shelter, necessitating expeditious investigation for compliance of sub-sections (5) and (6) of Section 19 of POCSO. 58. I am unable to accept the argument of the Appellant that the proceedings were vitiated and liable to be quashed or the Appellant was liable to be discharged without trial, only because of want of prior permission of the jurisdictional Magistrate to investigate into the alleged offence. The Appellant would have to defend the proceedings initiated against him under Section 23 of the POCSO on merits. 59. For the reasons discussed above, I do not find any infirmity with the impugned judgment and order of the High Court which calls for interference by this Court. The appeal is, accordingly, dismissed. I have the benefit of going through the opinion of my esteemed sister Justice Indira Banerjee, however I am unable to agree to the view taken in the judgment for the reasons to follow. 3. The facts as succinctly stated in the order and on perusal of those, the first core question that arises is that “In absence of any classification provided in the Protection of Children from Sexual Offences Act, 2021 (in short POCSO Act) regarding offences being cognizable or non-cognizable, can all the offences under the Act may be categorized as cognizable in view of the non-obstante clause specified under Section 19 of POCSO Act?” . The another question is “Whether Section 19 of the POCSO Act have overriding effect to the provisions of Cr.P.C., in particular Chapter 12 titled as ‘Information to the police and their powers to investigate’ in the context of the provision of Section 4 and 5 of Cr.P.C.?”. The last question is “In the case at hand, by virtue of mandate of Section 4(2) of Cr.P.C., in absence of having any provision in Special Enactment i.e. POCSO Act for investigation, to try an offence under Section 23 of POCSO Act, the mandate of Section 155(2) of Cr.P.C. shall be required to be followed ?” 4. Before adverting to answer the aforesaid questions, the backdrop of the issue in the instant appeal is described here. As per allegations, the appellant allegedly committed an offence under Section 23 of POCSO Act for disclosing the identity of the victim. Mother of the victim lodged the complaint on 30.10.2017 against the appellant. The matter was reported by the police to the Special Court. Thereafter, investigation was completed and challan was filed on 31.12.2017. The Special Court in-turn took cognizance on 19.04.2018. The appellant then moved an application for discharge before the Special Court, which was rejected vide order dated 28.08.2020. The order taking cognizance and consequential proceedings were assailed by the appellant in a petition under Section 482 of Cr.P.C. before the High Court seeking quashment inter-alia on the ground that offence under Section 23 of POCSO Act being non-cognizable, investigation conducted by police authorities without the order of the magistrate as mandated in Section 155(2) of the Cr.P.C and filing the challan, completing investigation vitiates trial, and all the proceedings deserve to be quashed. 5. The Special Court while rejecting the application for discharge observed that in view of Section 19 of POCSO Act, all offences under the Act are cognizable after taking guidance by the judgment of Delhi High Court in the case of Santosh Kumar Mandal vs. State, 2016 SCC OnLine Del 5378. It was held the police have power to register the case and investigate without obtaining permission from the magistrate. The Court also observed that sufficient material is available against the appellant to frame charge under Section 23 of POCSO Act and directed to frame the charges. 6. The High Court by the impugned order held that Section 19 of POCSO Act provides for reporting of offence and does not classify cognizable or non-cognizable offence. It is said, sub-section (1) of Section 19 of POCSO Act starts with ‘non-obstante’ clause which overrides the provisions contained under Sections 154 and 155 of Cr.P.C. However, the provisions of Sections 154 and 155 of Cr.P.C. are specifically excluded from application to the provisions of the POCSO Act. Therefore, obtaining the order from the Magistrate under Section 155(2) of Cr.P.C. to investigate a non-cognizable case is not necessary. 7. All the aforesaid questions are interlinked to each other, therefore, it is being adverted commonly. In this respect, POCSO Act does not clarify regarding cognizable and non-cognizable offences. However, the definition of the cognizable and non- cognizable offence under Sections 2(c) and 2(l) of Cr.P.C. may be relevant and 2. Definitions. — In this Code, unless the context otherwise requires — (c) “cognizable offence” means an offence for which, and “cognizable case” means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant; (l) “non-cognizable offence” means an offence for which, and “non-cognizable case” means a case in which, a police officer has no authority to arrest without warrant; 8. On perusal of the aforesaid, it is clear that on commission of the cognizable offence, a police officer may in accordance with First Schedule of Cr.P.C. or under any other law may arrest the accused without warrant. While in a non-cognizable offence, a police officer has no authority to arrest without warrant obtained by an order of the 9. The First Schedule of Cr.P.C. provides for classification of offence which is in two parts. Part first of the said Schedule specify punishment; cognizability or noncognizability; bailable or non-bailable; and triable by which court. Part second of First Schedule deals with the offences committed under any other law and specify the description of the offences; cognizability – noncognizability; bailable – non-bailable; and triable by which Court. In para 14 of the judgment above, part second of the First Schedule has been quoted. We can take advantage of it and on perusal of the same, it is clear that the sentence with imprisonment for less than 3 year or with fine if prescribed in that law, then commission of such offence under any other laws will be non-cognizable, bailable and triable by any magistrate. In the present case, an offence under Section 23 of POCSO Act has been allegedly committed in contravention of sub-sections (1) and (2) thereof, which is punishable with imprisonment for a period not less than 6 months but it may extend to 1 year or with fine or with both. Under the POSCO Act, it is not clear all the offences under the said Act are cognizable or some are non-cognizable. However, the Court may have to take the assistance from the provisions of Cr.P.C. on the said issue. In this regard, Section 4 of Cr.P.C. quoted in para 13 of the judgment above can be profitably looked into. As per sub-section 1 of Section 4 of Cr.P.C., trial of offences under Indian Penal Code, and as per sub-section (2) of Section 4 of Cr.P.C. under any other laws shall be investigated enquired into, tried and otherwise dealt with as specified in sub-section (1), subject to any enactment for the time being in force regulating the manner or place of investigating, enquiring into, trying or otherwise dealing with such offences. Section 5 of Cr.P.C. is a ‘savings’ clause whereby the procedure prescribed in any special or local law for the time being in force shall remain unaffected from the procedure provided in Cr.P.C. So, the provisions specified in any special enactment along with its procedure shall override the provisions of Cr.P.C. and be followed . In other words, the provisions of Cr.P.C. would not tinker with the provisions of special enactment and they are saved to such extent as specified in Section 5 of Cr.P.C. and would be applicable as per Section 4(2) of the Cr.P.C. 10. As per the findings recorded by Special Court as well the High Court, the shelter of Section 19 of POCSO Act has been taken relying upon the judgment of Delhi High Court in the case of Santosh Kumar Mandal (supra). However, the scope, context, applicability of Section 19 of POCSO Act after the said judgment is required to be seen, and to find out whether special enactment deals with investigation after reporting. In para 36 of the judgment above, Section 19 has been quoted which is part of Chapter V of the POCSO Act and provide a procedure for ‘reporting’ of the cases. It says that ‘when any person including the child has apprehension that an offence under the POCSO Act is likely to be committed or has knowledge of commission of the offence, he shall provide such information to the Special Juvenile Police Unit (in short “SJPU”) or local police. On reporting the offence under the Act, every such report shall be ascribed an entry number and be recorded in writing; after reading over to the informant; and shall be entered in a book to be kept by the Police Unit. Sub-section (2) prescribes a procedure for ascribing the report made under sub-section (1). As per sub-section (3) , while ascribing the report, it should be in simple language so the child can understand its contents being recorded as it is. As per subsection (4), if necessary, the translator/interpreter may be provided to the child. Looking to the language of sub9 sections (3) and (4), it clearly applies in a case where the report has been lodged by the child and not by the family members. Section 19(5)(6) prescribes special procedure on reporting to the SJPU or local police, and also cast duty on them that if child is in need of care and protection, after recording the reasons in writing, immediate arrangements of such care and protection including admitting the child into shelter home or nearest hospital within 24 hours of report, ought to have been made. Simultaneously, they are supposed to report the matter to the Child Welfare Committee, (in short “CWC”) and also to the Special Court or the Court of Sessions, as the case may be. Sub-section (7) confers protection on a person reporting such offence under sub-section (1) in good faith. 11. Looking to the language of Section 19, it does not specify all the offences under the POCSO Act are cognizable. Simultaneously either Section 19 or other provisions of the POCSO Act also do not specify how and in what manner the investigation on reporting of commission of offence under sub-section (1) of Section 19 of POCSO Act be made by the police. Indeed, looking to the language of Section 19, it is true that the provisions of the POCSO Act override the provisions of Cr.P.C. being special enactment only to the extent of having corresponding provision. But POCSO Act does not specify how and in what manner the investigation on reporting of the offences ought to be made. In contrast, Chapter XII of Cr.P.C. deals with investigation also after receiving information in a cognizable or non-cognizable offences. The power of investigation has been given to the police officer as per Section 156 and the said officer shall make the investigation following the procedure as prescribed under Section 157 in case of cognizable offences. In noncognizable offences, the information may be recorded under Section 155(1) of Cr.P.C. by an officer in-charge of a police station within whose limit the offence is committed. He shall enter the substance of information in a book to be kept by such officer in such form as State Government may prescribe in this behalf, and shall refer the informant to the Magistrate having power to try such case. The said Magistrate may pass an order for investigation which shall be abided by the police officer and shall exercise the same power except the power of arrest without warrant, as he may exercise in investigation of cognizable offences. Otherwise, in a non-cognizable offence, the police officer is not supposed to investigate without the order of Court. Thus, in absence of having any procedure for investigation under the POCSO Act, either for cognizable or noncognizable offences, as mandated by sub-section (2) of Section 4 of Cr.P.C., the procedure prescribed in Cr.P.C. ought to be followed in the matter of investigation enquiring into and trial. Section (5) of Cr.P.C. is a saving clause by which the procedure prescribed in the special enactment will prevail otherwise in absence of the provision and the procedure specified in Cr.P.C. may be applicable. 12. After the discussion to the basic provisions of Cr.P.C. and POCSO Act, the order passed by the Trial Court, relying upon the judgment of Delhi High Court in the case of Santosh Kumar Mandal (supra) in paragraph 10 is required to be examined. On perusal of the said judgment of Delhi High Court, it reveals Hon’ble Single Judge made a sweeping observation while dealing with the case of Section 12 in reference to Section 19 and said all the offences punishable under the POCSO Act are cognizable in nature. The said observation does not appear to be in consonance to the language of Section 19 of POCSO Act. After perusal of the facts and findings of the said case, it is suffice to say that the Delhi High Court dealt with a case in which the sentence extendable up to three years was there and weighed with the principle that the sentence maximum so prescribed can be looked into to decide the cognizability or non-cognizability. Therefore, under the said impression, the observation made by the High Court that all the offences under the POCSO Act are cognizable, which, in my opinion, can not be said to be correct view. 13. The matter with respect to cognizability or noncognizability, the Division Bench judgment of Rajasthan High Court in Criminal Reference No. 1 of 2020, titled Nathu Ram & Ors. vs. State of Rajasthan & Anr., 2021(1) RLW 211 may be relevant, wherein the question posed for answer was as under: “What would be the nature of an offence (whether cognizable or non-cognizable) for which imprisonment “may extend to three years” is provided and no stipulation is made in the statute regarding it being cognizable/non-cognizable.” 14. The High Court, considering all the provisions and also the judgments of this Court in the cases of Rajiv Chaudhary vs. State (NCT) of Delhi, AIR 2001 SC 2369 and Rakesh Kumar Paul vs. State of Assam, (2017) 15 SCC 67, has answered the Thus, the classification made as aforesaid, for determination of nature of offence whether it is cognizable or noncognizable, the maximum punishment that may be awarded for particular offence, is relevant and not the minimum sentence. 25. Accordingly, the reference is answered in terms that unless otherwise provided under the relevant statute, the offences under the laws other than IPC punishable with imprisonment to the extent of three years, shall fall within the classification II of offences classified under Part II of First Schedule and thus, shall be cognizable and non-bailable. Consequently, the offence under Section 91(6)(a) of the Act of 1956 shall be cognizable and 15. Thus, as per the discussion made hereinabove, it is to conclude that the Delhi High Court’s judgment of Santosh Kumar Mandal (supra) deals with an offence of Section 12 wherein maximum sentence prescribed was extendable up to 3 years, however the said offence was found cognizable. It is to state that the observation made in the said judgment that all offences under POCSO Act are cognizable, is in my humble opinion not justified without taking note of the provisions of Cr.P.C. It is true that to decide the cognizability and non-cognizability, the maximum sentence prescribed for the offence would be taken into consideration, but if the sentence prescribed for the offence is less than 3 years then those offences of POCSO Act would be non-cognizable. It is clarified, Section 19 of the POCSO Act overrides the provisions of Cr.P.C. only to the extent of reporting the matters to the police or SJPU and other ancillary points so specified in Section 19. 16. As per above discussion, the offence under Section 23 is non-cognizable and Section 19 or other provisions of POCSO Act do not confer power for investigation except to specify the manner of reporting the offence. However, as concluded as per sub-section 2 of Section 4 and applying Section 5 savings clause of Cr.P.C., in absence of having any provision in special enactment, the Cr.P.C. would apply. 17. In the said context, it is required to be seen, what may be the mode of investigation as per the provisions of Cr.P.C. in non-cognizable cases. As per Chapter XII of Cr.P.C., under Section 154, the F.I.R. in a cognizable offence may be registered by the in-charge of the police station and reduce so in writing. Section 155 prescribes the information as to non-cognizable cases and manner of investigation of such cases. Section 156 provides the power to investigate a cognizable case to a police officer while Section 157 specifies a procedure for investigation. On perusal thereto, it is apparent that the officer in-charge of the police station is having power to investigate any cognizable case without the order of the Magistrate and while investigating the same, he shall forthwith report the same to the Magistrate who is having power to take cognizance of such offence and he may also relegate the said investigation as prescribed in the Cr.P.C. or as per the notification issued by the State Government. Therefore, it is clear that in the cases where the commission of cognizable offence is there, the officer in-charge of the police station is competent without the order of Magistrate, but in case of non-cognizable offences, after taking the report, the officer in-charge shall refer the informant to the Magistrate as per section 155(1). The language of Section 155(2) makes it clear and in terms it is mandatory that no police officer shall investigate a noncognizable case without the order of the Magistrate. Therefore, the said provision is mandatory and required to be complied with prior to investigating a non-cognizable offence. Learned counsel for the appellant has placed reliance on the judgment of this Court in Keshav Lal Thakur vs. State of Bihar, (1996) 11 SCC 557. In the said case, offence under Section 31 of Representation of People’s Act, 1950, was alleged to have been committed. After investigation, a final report was submitted praying for discharge by police on which Magistrate took cognizance, which was challenged before High Court under Section 482 and the petition was dismissed, which was assailed before this Court. This Court “3. We need not go into the question whether in the facts of the instant case the above view of the High Court is proper or not for the impugned proceeding has got to be quashed as neither the police was entitled to investigate into the offence in question nor the Chief Judicial Magistrate to take cognizance upon the report submitted on completion of such investigation. On the own showing of the police, the offence under Section 31 of the Act is non cognizable and therefore the police could not have registered a case for such an offence under Section 154 Cr.P.C. Of course, the police is entitled to investigate into a non-cognizable offence pursuant to an order of a competent Magistrate under Section 155 (2) Cr.P.C., but, admittedly, no such order was passed in the instant case. That necessarily means, that neither the police could investigate into the offence in question nor submit a report on which the question of taking cognizance could have arisen. While on this point, it may be mentioned that in view of the explanation to Section 2(d) Cr.P.C., which defines ‘complaint’, the police is entitled to submit, after investigation, a report a relating to a non-cognizable offence in which case such a report is to be treated as a ’complaint’ of the police officer concerned, but that explanation will not be available to the prosecution here as that related to a case where the police initiates investigation into a cognizable offence – unlike the present one – but ultimately finds that only a non- cognizable offence has been made out. On perusal of the said, it is clear that the view taken by High Court upholding the order taking cognizance by Magistrate was not found justified on the ground that the police was not entitled to investigate into the offence and upon such a report of the police officer taking cognizance after completion of investigation by the Magistrate was also not justified. The Court observed that the offence being non-cognizable, the police is entitled to investigate such offence pursuant to an order of competent Magistrate specified under Section 155(2) of Cr.P.C. But admittedly, no such order was passed in the case, therefore, this Court said that the recourse as taken is not justified and quashed the impugned proceedings. Learned counsel distinguishing the judgment of Fertico Marketing and Investment Private Limited & Ors. vs. Central Bureau of Investigation & Anr., (2021) 2 SCC 525, has relied upon the judgment of State of Punjab vs. Davinder Pal Singh Bhullar, (2011) 14 SCC 770 to contend that if initial action itself is illegal, all subsequent actions emanating from that act are also a nullity, however, prayed for quashment of proceedings. 18. Per contra, learned counsel for the respondent State relied upon the judgment of Fertico (supra) to contend that seeking consent of the State Government under Section 6 of Delhi Special Police Establishment Act, 1946 to investigate the offence, if not taken would not be an impediment to vitiate the trial unless there is a miscarriage of justice. After perusal of the said judgment, it is revealed that the said judgment relies upon the judgment of 3-Judge bench of this Court in H.N. Rishbud & Inder Singh vs. State of Delhi, AIR 1955 SC 196 wherein paras 9 and 10 embark upon the niceties of the law relating to the said issue and those are reproduced as thus: “9. The question then requires to be considered whether and to what extent the trial which follows such investigation is vitiated. Now, trial follows cognizance and cognizance is preceded by investigation. This is undoubtedly the basic scheme of the Code in respect of cognizable cases. But it does not necessarily follow that an invalid investigation nullifies the cognizance or trial based thereon. Here we are not concerned with the effect of the breach of a mandatory provision regulating the competence or procedure of the Court as regards cognizance or trial. It is only with reference to such a breach that the question as to whether it constitutes an illegality vitiating the proceedings or a mere irregularity arises. A defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a police report which results from an investigation is provided in Section 190 of the Code of Criminal Procedure as the material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance. Section 190 of the Code of Criminal Procedure is one out of a group of sections under the heading “Conditions requisite for initiation of proceedings”. The language of this section is in marked contrast with that of the other sections of the group under the same heading i.e. Sections 193 and 195 to 199. These latter sections regulate the competence of the Court and bar its jurisdiction in certain cases excepting in compliance therewith. But Section 190 does not. While no doubt, in one sense, clauses (a), (b) and (c) of Section 190(1) are conditions requisite for taking of cognizance, it is not possible to say that cognizance on an invalid police report is prohibited and is therefore a nullity. Such an invalid report may still fall either under clause (a) or (b) of Section 190(1), (whether it is the one or the other we need not pause to consider) and in any case cognizance so taken is only in the nature of error in a proceeding antecedent to the trial. To such a situation Section 537 of the Code of Criminal Procedure which is in the following terms is attracted: “Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any enquiry or other proceedings under this Code, unless such error, omission or irregularity, has in fact occasioned a failure of justice.” If, therefore, cognizance is in fact taken, on a police report vitiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. That an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court for trial is well settled as appears from the cases in Prabhu v. Emperor [AIR 1944 Privy Council 73] and Lumbhardar Zutshi v. King [AIR 1950 Privy Council 26] . These no doubt relate to the illegality of arrest in the course of investigation while we are concerned in the present cases with the illegality with reference to the machinery for the collection of the evidence. This distinction may have a bearing on the question of prejudice or miscarriage of justice, but both the cases clearly show that invalidity of the investigation has no relation to the competence of the Court. We are, therefore, clearly, also, of the opinion that where the cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless miscarriage of justice has been caused thereby. 10. It does not follow, however, that the invalidity of the investigation is to be completely ignored by the Court during trial. When the breach of such a mandatory provision is brought to the knowledge of the Court at a sufficiently early stage, the Court, while not declining cognizance, will have to take the necessary steps to get the illegality cured and the defect rectified, by ordering such reinvestigation as the circumstances of an individual case may call for. Such a course is not altogether outside the contemplation of the scheme of the Code as appears from Section 202 under which a Magistrate taking cognizance on a complaint can order investigation by the police. Nor can it be said that the adoption of such a course is outside the scope of the inherent powers of the Special Judge, who for purposes of procedure at the trial is virtually in the position of a Magistrate trying a warrant case. When the attention of the Court is called to such an illegality at a very early stage it would not be fair to the accused not to obviate the prejudice that may have been caused thereby, by appropriate orders, at that stage but to leave him to the ultimate remedy of waiting till the conclusion of the trial and of discharging the somewhat difficult burden under Section 537 of the Code of Criminal Procedure of making out that such an error has in fact occasioned a failure of justice. It is relevant in this context to observe that even if the trial had proceeded to conclusion and the accused had to make out that there was in fact a failure of justice as the result of such an error, explanation to Section 537 of the Code of Criminal Procedure indicates that the fact of the objection having been raised at an early stage of the proceeding is a pertinent factor. To ignore the breach in such a situation when brought to the notice of the Court would be virtually to make a dead letter of the peremptory provision which has been enacted on grounds of public policy for the benefit of such an accused. It is true that the peremptory provision itself allows an officer of a lower rank to make the investigation if permitted by the Magistrate. But this is not any indication by the Legislature that an investigation by an officer of a lower rank without such permission cannot be said to cause prejudice. When a Magistrate is approached for granting such permission he is expected to satisfy himself that there are good and sufficient reasons for authorising an officer of a lower rank to conduct the investigation. The granting of such permission is not to be treated by a Magistrate as a mere matter of routine but it is an exercise of his judicial discretion having regard to the policy underlying it. In our opinion, therefore, when such a breach is brought to the notice of the Court at an early stage of the trial the Court have to consider the nature and extent of the violation and pass appropriate orders for such reinvestigation as may be called for, wholly or partly, and by such officer as it considers appropriate with reference to the requirements of Section 5-A of the Act. It is in the light of the above considerations that the validity or otherwise of the objection as to the violation of Section 5(4) of the Act has to be decided and the course to be adopted in these proceedings, determined. 19. On perusal thereto, it is clear that the ‘trial flows cognizance and cognizance is preceded by investigation ’, which is the basic scheme for the Court to cognizable cases. It is observed that, it does not necessarily follow that an invalid investigation nullifies the cognizance or trial based thereon. Then Court proceeded to decide the breach of mandatory provisions regulating the competence or procedure of the Court as regards cognizance or trial. In the said context, in reference to Sections 190 and 537 of Cr.P.C., the Court said that, for breach of mandatory provision relating to investigation, it cannot be set-aside unless the illegality in the investigation can be shown to have been brought miscarriage of justice as it does not affect the competence and jurisdiction of trial court. The Court further observed that, if the breach of mandatory provision is brought to the knowledge of Court at sufficiently early stage, the Court while not declining cognizance will have to take necessary steps to get illegality cured and the defect rectified by ordering such reinvestigation looking into circumstances of case. If the attention of the Court is called to such illegality at very early stage, it would be fair to the accused not to obviate the prejudice that may have been caused thereby, by passing the appropriate orders at that stage and not leave him to ultimate remedy of waiting till conclusion of trial. The Court said that granting of such permission is not to be taken by Magistrate as a matter of routine but it is in exercise of his judicial discretion having regard to the policy underlying it. The Court observed that when such a breach is brought to the notice of court at early stage of trial, the Court has to consider the nature and extent of the violation and pass appropriate order for re-investigation as may be called for, wholly or partly or whatever is appropriate. 20. It is not out of place to mention that judgments of Fertico (supra) and H.N. Rishbud (supra) are the cases in which this Court has dealt with the violation of the procedure of investigation in the case of cognizable offences, while in the case at hand, the offence is noncognizable. Therefore, to investigate such an offence, the order as mandated under Section 155 (2) of Cr.P.C. is necessary, prior to investigating the offence. It is made clear here that, as per Section 155(2), for non- cognizable offence, the order is required to be taken from the Magistrate but in the light of Sections 2(l) and 28 of POCSO Act, the Special Courts are required to be designated to deal with offences under POCSO Act and they have been authorized under Section 33, conferring a power to such Special Courts to take cognizance. Therefore, the word used in Section 155(2) be read as “Special Courts” in place of “Magistrate”, which may take cognizance of any offence under POCSO Act. Therefore, the procedure of Section 155(2) is required to be followed in an offence of POCSO Act under Section 23 which is non-cognizable and the Special Court is required to look into the procedure followed in the investigation. The order of taking cognizance passed by the Special Court after filing the charge-sheet passed on 19.04.2018, merely reflect that after perusal of documents as per list which is verified, the Court has taken cognizance. The Court has not looked into the vital aspect of following the procedure of Section 155(2) of Cr.P.C. Therefore, at the earliest when the application for discharge was filed, it was dismissed by order impugned dated 28.08.2020 with the incorrect notion regarding overriding effect to the provision of Section 19 of POCSO Act, confirmed by High Court. In my considered opinion, the order taking cognizance and to pass consequential order rejecting the application for discharge is not in accordance with law. The view taken by this Court in case of Keshav Lal Thakur (supra) relating to a case of noncognizable offence, is aptly applicable in the facts of the present case. 21. In view of the above, this appeal is allowed. Order impugned taking cognizance and consequential orders passed by the Trial Court which is affirmed by the High Court are hereby set-aside. The Special Court is at liberty to follow the procedure prescribed in the matter of investigation of non-cognizable offences. Hon’ble Ms. Justice Indira Banerjee pronounced her judgment dismissing the appeal in terms of the signed reportable judgment. Hon’ble Mr. Justice J.K. Maheshwari pronounced a separate judgment, disagreeing with the view expressed by Hon’ble Ms. Justice Indira Banerjee and allowed the appeal. Since the Bench has not been able to agree, the Registry is directed to forthwith place the matter before Hon’ble the Chief Justice of India, for assignment before an appropriate Bench.
Two judges in the Supreme Court disagreed on a key point. They couldn't decide if a certain rule, Section 155(2) of the Code of Criminal Procedure (CrPC), should apply when police investigate a crime mentioned in Section 23 of the Protection of Children from Sexual Offences Act, 2012 (POCSO). Section 155(2) of the CrPC says that police need a judge's permission (from a Magistrate) to look into certain crimes, called "non-cognizable offences." Section 23 of the POCSO Act makes it a crime to reveal the name or identity of a child who has been a victim of a sexual offense. Justices Indira Banerjee and JK Maheshwari were looking at a case involving the editor of a newspaper. This editor was accused of breaking Section 23 of the POCSO Act because his paper published the identity of a 16-year-old girl who was a victim of a sexual crime. The editor argued that the police started their investigation without getting the judge's permission, which he believed was required by Section 155(2) CrPC. He asked a lower judge (Magistrate) to drop the charges, but the judge said no. He then took his case to a higher court (High Court), but he lost there too. So, the case ended up at the Supreme Court. The Supreme Court explained the main legal question in the case: "Should the rule in Section 155(2) of the CrPC apply when police investigate a crime under Section 23 of POCSO? Also, should a special court dismiss a case and let the accused person go free, following Section 227 of the CrPC, just because the police didn't get a judge's permission to investigate the crime?" Justice Banerjee believed that the police did not need a judge's permission to investigate crimes under Section 23 of POCSO. However, Justice Maheshwari disagreed and thought permission was necessary. Because the two judges had different opinions, the case has been sent to the Chief Justice of India. The Chief Justice will now assign it to a larger group of judges to make a final decision. Justice Banerjee's analysis The lawyer for the newspaper editor, Devadatt Kamat, argued that the crime under Section 23 of POCSO is a "non-cognizable offence." He pointed out that the maximum punishment for this crime is one year in jail. Under a specific part of the CrPC, crimes that carry a sentence of less than three years in jail are considered "non-cognizable." Kamat also argued that Section 19 of the POCSO Act, which outlines how POCSO crimes should be investigated, does not specifically mention Section 23 crimes. Since Section 23 doesn't say it's separate from the CrPC rules, he argued that the mandatory rule of Section 155(2) CrPC must apply to Section 23. Justice Banerjee did not agree that Section 19 leaves out Section 23. She said that the wording of Section 19 of POCSO makes it very clear that it covers all crimes under the Act, including those under Section 23. She pointed to Section 19(1), which says it applies to "any person who has apprehension that an offence under this Act is likely to be committed or has knowledge that such an offence has been committed." She explained that "offence" here means all crimes under POCSO, like publishing a news report that reveals the identity of a child who was sexually assaulted. Justice Banerjee also pointed out that according to Section 19(5), if the police believe a child victim needs care and protection, they must immediately arrange for it. She added that actions under Section 19(5) must be taken very quickly. Such actions naturally involve finding out if a crime happened and if the child needs special help. Justice Banerjee also mentioned that Section 19(6) states police must report the situation to the Child Welfare Committee and a special court right away. She said this report should include whether the child needs care and protection and what steps have been taken. A child whose identity is revealed in the media might very much need care and protection. Revealing a child's identity could also put the child victim at risk of revenge from the people who committed the crime or their partners. Justice Banerjee pointed out that if lawmakers had wanted Section 155(2) CrPC to apply to Section 23 of POCSO, they would have said so clearly. She noted that other parts of the POCSO Act (Sections 31 and 33(9)) do specifically include rules from the CrPC (Sections 4(1) and 4(2)). Justice Banerjee also talked about how important it is to protect a child's dignity and privacy. She stressed that "Every child has a basic human right to live with dignity, to grow up in a healthy environment for their mind and body, and to be treated equally without unfair treatment. These basic rights include the right to privacy. India's Constitution guarantees these fundamental rights to everyone, including children, such as the right to live with dignity, personal freedom, privacy, equality, and protection against unfair treatment or exploitation." Justice Banerjee repeated that a child whose identity is revealed in a crime under Section 23 of POCSO might need special protection, care, or even a safe place to live. This means a quick investigation is vital to follow Sections 19(5) and 19(6) of POCSO. With these points, she rejected the lawyer's arguments. Justice Maheshwari's analysis Justice Maheshwari, however, pointed out that Section 19 doesn't say that all POCSO crimes are "cognizable" (meaning police can investigate without a judge's order). He also noted that Section 19 doesn't explain how investigations should be done once a crime is reported. Justice Maheshwari explained that because the POCSO Act doesn't provide a specific way to investigate crimes (whether cognizable or non-cognizable), the rules from the CrPC must be followed for investigations and trials. He referred to Section 4(2) of the CrPC. He also mentioned Section 5 of the CrPC, which acts as a "saving clause" meaning that if a special law (like POCSO) has its own rule, that rule takes priority. But if the special law doesn't have a rule, then the CrPC rules apply. He concluded that the crime under Section 23 is non-cognizable. Since Section 19 or other parts of the POCSO Act only describe how to report a crime but not how to investigate it, the CrPC rules must apply. This is based on Section 4(2) and Section 5 (the saving clause) of the CrPC, which state that if a special law doesn't have its own rules, the general CrPC rules step in. Based on past court decisions, Justice Maheshwari stated that Section 155(2) CrPC is a rule that must be followed. Therefore, he believed it applies to crimes under Section 23 of POCSO. He also said that when Section 155(2) refers to a "Magistrate" (a type of judge), for POCSO cases, this should be understood to mean a "Special Court." Justice Maheshwari concluded that the process outlined in Section 155(2) must be followed for non-cognizable crimes under Section 23 of the POCSO Act. He also stated that the Special Court must review whether the proper investigation steps were followed. Matter referred The court order stated, "Since the two judges could not agree, the court's administrative office is instructed to immediately send this case to the Chief Justice of India. The Chief Justice will then assign it to a new, suitable group of judges to make a decision."
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“Criminals / Convicts are to be treated with respect, even though they may not deserve it.” The present Habeas Corpus Petition is filed to call for the entire records in connection with the detention order passed in C.O.C.No.12/2022 dated 28.1.2022 on the file of the 2nd respondent herein and set aside the same as illegal and direct the respondents to produce the body or person of the petitioner's wife namely Muthulakshmi, w/o Manokaran, female, aged 38 years, who is detained in Special Prison for Women, Tiruchirappalli before this court and set her at liberty. 2. It is the case of the petitioner that his wife was detained in preventive detention pursuant to the order passed by the second respondent dated 28.1.2022 as a "Bootlegger". 3. The petitioner had raised the following grounds for setting aside the detention order:- i) The detenue was arrested and produced before the Judicial Magistrate I, Nagapattinam on 8.12.2021, but, the detaining authority had passed the detention order against the detenue on 28.1.2022 with a delay of 50 days and that too without mentioning reasons for the delay. ii) The sponsoring authority has failed to inform the arrest of the detenue in ground case to the family members of the detenue, which is in violation of Article 22(1) of the Constitution of India and the dictum laid down by the Apex Court in D.K.Basu vs. State of West Bengal (1997) iii) Despite the fact that the bail petition filed on behalf of the petitioner in Crl.M.P.No.33 of 2022 before the Sessions Court, Nagapattinam was dismissed, the detaining authority has erred in observing that there is a real and imminent possibility of the detenue coming out on bail, which is a clear case of non-application of mind on the part of the detaining authority. iv) The detention order came to be passed on 28.1.2022, however, the booklet was issued after five days without following the procedures contemplated under Section 8(1) of the Act 14/1982. 4. When the matter came up for hearing on 21.7.2022, it was brought to the notice of this court by the learned Additional Public Prosecutor that the Advisory Board has opined that there is no sufficient cause for detention and thereby the order of detention has been revoked by the Government. However, it was represented by the learned counsel for the petitioner that the Government order of revocation had not been communicated to the petitioner till date and the detenue was in continued detention. Finding some seriousness in the issue, the matter was listed on 25.7.2022 to enable the Additional Public Prosecutor to get 5. On 25.7.2022, when the matter was taken up for hearing, the Government order of revocation dated 22.7.2022 was produced by the respondents, a perusal of which revealed that the matter was placed before the Advisory Board and the Advisory Board, as early as on 16.3.2022 had opined that there is no sufficient cause for detention of the petitioner's wife Muthulakshmi, however, the revocation order came to be passed only on 22.7.2022 that too, after the indulgence of this court and thereby the detenue had been detained illegally/unauthorisedly for more than four months from 16.3.2022. 6. This court, while ordering for immediate release of the detenue, directed the first respondent to file a Report stating the reason for the delay in passing the revocation order and identifying the person, who is responsible for the delay. 7. When the matter was called on 28.7.2022, a non-speaking Affidavit was filed by the respondents neither disclosing any reason for the delay nor pointing out name of any official, who is responsible for the delay, but, merely contending that there is no intention on the part of the first respondent to disobey the orders of this court and that departmental action has been initiated against the Assistant Section Officer and Section Officer concerned. Hence, by way of one more opportunity, time was granted to file a better affidavit. 8. Accordingly, an Affidavit dated 3.8.2022 came to be filed by the first respondent contending as under:- "(ii) It is further submitted that the Advisory Board heard the case on 15.03.2022 and opined that there is no sufficient cause for the detention of Tmt.Muthulakshmi and the report of the board was received in Government on 16.03.2022. The file was submitted immediately to revoke the detention of Tmt.Muthulakshmi by the Assistant Section Officer and Section Officer on 16.03.2022 and it was approved by the Under Secretary and Deputy Secretary on the same day itself. Then the file was circulated to the Minister (Electricity, Prohibition and Excise) 16.03.2022 and the Minister approved the file on 17.03.2022, but the file was received by this department only on 22.07.2022. It is also submitted that action has been initiated and Thiru.A.Venkatesan, Section Officer under relevant rule of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, for failing to follow up file with the Minister's office for getting back the file bearing C.No.2133/Home, Prohibition & Excise (XV)/2022 which was circulated to the Minister's office on 16.03.2022. After duly following the stipulated procedures, necessary further action will be taken against erred staff." 9. In such a background, learned counsel appearing for the Petitioner Mr.K.A.S.Prabhu would submit his arguments as under:- i) The impugned detention order did not stand the test of the Advisory Board and it was opined by the Advisory Board on 16.3.2022 that that there is no sufficient cause for detention of the petitioner's wife Muthulakshmi, however, the revocation order came to be passed only on 22.7.2022, in clear violation of Article 21 of the Constitution of India which protects the life and personal liberty of a citizen ii) When the Constitution assures that no person shall be deprived of his personal liberty except according to procedure established by law, in this case, the petitioner's wife had been unnecessarily and illegally detained for a period of 128 days without any authority of law and thereby, the detenue is entitled to award of compensation. iii) The detenue is a victim, who has suffered illegal detention on account of lapses on the part of the Government and the petitioner has filed the Habeas Corpus Petition, which itself is a public law proceedings and thereby, the detenue is entitled to compensation. iv) It is an obligation of the State, to ensure that there is no infringement of the indefeasible rights of a citizen to life, except in accordance with law while the citizen is in its custody and the precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, under trials or other prisoners in custody, except according to procedure established by law and in such event, the High Court, being a protector of the civil liberties of the citizen, has not only the power and jurisdiction to release the prisoner but also an obligation to grant relief of compensation for unlawful and illegal detention in exercise of its jurisdiction under Articles 226 of the Constitution to the victim. 10. Mr.Mohamed Ali Jinnah, learned Public Prosecutor assisted by Mr. M.Babu Muthumeeran, learned Additional Public Prosecutor would submit that there was some administrative delay on the part of the officials in getting the file approved for passing the order of revocation after the receipt of opinion from the Advisory Board. He would further submit though no intention could be attributed on the part of the officials, the erring officials have been proceeded with departmentally for dereliction and appropriate action would be taken against them. He would further submit that the petitioner could very well pursue the remedy in seeking compensation under the civil law and the relief of compensation in this petition can be rejected. 11. Heard the learned counsel appearing for the parties and perused the materials available on record. 12. Since the order of detention passed against the petitioner stands revoked as of now and the petitioner has been released, this court feels that it need not harp on the validity and correctness of the detention order. It is a case where the detenue was detained pursuant to an order dated 28.01.2022. However, in the opinion of the advisory board dated 16.03.2022 that no sufficient cause is available for the detention of the detenue, the Government order of revocation came to be passed only on 22.07.2022. What has to be seen here is whether the detenue is entitled to any compensation and if so, the quantum of such compensation ? "Those who deny freedom to others, deserve it not for themselves" -Abraham Lincoln. 13. The sequence of events in the case on hand reveals beyond any doubt that it is a classic case of bureaucratic lethargy and slumber, which has played a lot in depriving the personal liberty of a citizen guaranteed under Article 21 of the Constitution of India. To understand the gravity of the scenario, we need to have a look into the relevant legal provisions and the guidelines and restrictions thereupon. 14. Section 12(2) of the Tamil Nadu Act 14 of 1982 reads as "(2) In any case where the Advisory Board has reported that there is, in its opinion, no sufficient cause for the detention of the person concerned, the State Government shall revoke the detention order and cause the person to be released forthwith." 15. As per Section 12(2) of Act 14 of 1982, when the Advisory Board opined and reported that there is no sufficient cause for detention of the person concerned, the State Government shall revoke the detention order and cause the person to be released forthwith, whereas, in this case, as stated above, the petitioner has been released after a period of 128 days. "No freedom is higher than personal freedom and no duty is higher than to maintain it 16. Personal liberty of a citizen has been very much guaranteed under Article 21 of the Constitution of India, which reads as under:- "21. Protection of life and personal liberty. No person shall be deprived of his life or personal liberty except according to procedure established by law." 17. A bare perusal of the above provision makes it clear that the protection extended by it covers all Persons. The expression "Person" is not to be confined only to citizens but, it extends to every person regardless of the circumstance in which a person is placed. It implies that the protection guaranteed under the above provision extends even to persons who are undergoing imprisonment as a convict prisoner and he does not lose his fundamental rights merely because he is convicted either as a convict prisoner or detained pursuant to a preventive detention order. 18. A person, if at all, could be deprived of his life or personal liberty only in accordance with the procedure established by law. The scope of Article 21 appears to had been a bit narrow till 1950s and thereafter, it was expanded gradually. The procedure established by law to deprive of life or personal liberty of a person cannot be arbitrary, unfair, unreasonable one or it cannot be whimsical and fanciful. 19. The terms "shall revoke" and "released forthwith" in Section 12(2) of Act 14 of 1982 read together express a strong assertion of the legislature in protecting the personal liberty as guaranteed under the Constitution of India. Whether such intention has been properly appreciated by the respondents in the case on hand is the question posed before us. 20. We can least appreciate if the delay had occurred in various levels to end with the revocation order, whereas, the records produced before us and the submission made on behalf of the respondents reveal that on receipt of opinion from the Advisory Board 16.3.2022, the file was immediately circulated for approval and it was, accordingly, approved by the Ministry on 17.3.2022, however, the revocation order was passed by the office only on 22.7.2022 after the matter was seized of by this court and only after the displeasure shown by the court on 21.7.2022 and not prior to that especially, when the Habeas Corpus Petition stands admitted and notice was ordered on 22.2.2022 itself and it was directed to be listed on 19.4.2022. 21. The sequence of events speaks much despite the slumber on the part of the bureaucracy, which had taken away the personal liberty of the petitioner. The Hon'ble Division Bench of the Delhi High Court in a case of similar circumstances in Pramod Kumar Garg @ Ravinder Chandhok vs. Union of India and others (1994) 29 DRJ (DB) 464; 1994 SCC online Del 346 has held as under:- "10. It has been held that the Act is valid under Article 22 of the Constitution, and, therefore, one has to refer to the provisions of the Act itself for the purpose of passing of the order of detention, the detention, the opinion of the Advisory Board, and action on that by the detaining authority. It is apparent, therefore, that the moment opinion of the Advisory Board is received that there is no sufficient cause for the detention of the detenu, the detaining authority” shall revoke the detention order and cause the person to be released forthwith”. The law as laid does not contemplate any exceptions and we cannot read into this law the case put by the respondents that in spite of opinion of the Advisory Board that there is no sufficient cause for the detention of a person, the detaining authority has, no doubt, to revoke the detention order but that could be done within three months of the date of detention of the detenu irrespective of the fact when opinion of the Advisory Board was received, and that once the detention order is revoked it is for the jail authorities where the person is confined to release him “forthwith”. We do not think such proposition could ever have been advanced by the respondents. Of course, we are not unmindful of the fact that once the opinion of the Advisory Board is received the detenu is not to be released at once and time is required to meet administrative exigencies. As to what the expression “as soon as may be” or the word “forthwith” mean, the Supreme Court has already laid down the guidelines." In this case as stated above the administration has acted with utmost lethargy, thereby keeping the detenue unnecessarily in prison for four 22. In Nilabati Behera vs. State of Orissa (1993) 2 SCC 746, a Three Judges Bench held as under:- "This Court and the High Courts, being the protectors of the civil liberties of the citizen, have not only the power and jurisdiction but also an obligation to grant relief in exercise of its jurisdiction under Articles 32 and 226 of the Constitution to the victim or the heir of the victim whose fundamental rights under Article 21 of the Constitution of India are established to have been flagrantly infringed by calling upon the State to repair the damage done by its officers to the fundamental rights of the citizen, notwithstanding the right of the citizen to the remedy by way of a civil suit or criminal proceedings. The State, of course has the right to be indemnified by and take such action as may be available to it against the wrongdoer in accordance with law through appropriate proceedings. Of course, relief in exercise of the power under Article 32 or 226 would be granted only once it is established that there has been an infringement of the fundamental rights of the citizen and no other form of appropriate redressal by the court in the facts and circumstances of the case, is possible. The decisions of this Court in the line of cases starting with Rudul Sah v. State of Bihar and Anr., [1983] 3 SCR 508 granted monetary relief to the victims for deprivation of their fundamental rights in proceedings through petitions filed under Article 32 or 226 of the Constitution of India, notwithstanding the rights available under the civil law to the aggrieved party where the courts found that grant of such relief was warranted. It is a sound policy to punish the wrongdoer and it is in that spirit that the Courts have molded the relief by granting compensation to the victims in exercise of their writ jurisdiction. In doing so the courts take into account not only the interest of the applicant and the respondent but also the interests of the public as a whole with a view to ensure that public bodies or officials do not act unlawfully and do perform their public duties properly particularly where the fundamental rights of a citizen under Article 21 is concerned. Law is in the process of development and the process necessitates developing separate public law procedures as also public law principles. It may be necessary to identify the situations to which separate proceedings and principles apply And the courts have to act firmly but with certain amount of circumspection and self restraint, lest proceedings under Article 32 or 226 are misused as a disguised substitute for civil action in private law." 23. In D.K.Basu vs. State of W.B. (1997) 1 SCC 416, the Apex Court has held as under:- "The claim in public law for compensation for unconstitutional deprivation of fundamental right to life and liberty, the protection of which is guaranteed under the Constitution, is a claim based on strict liability and is in addition to the claim available in private law for damages of tortious acts of the public servants. Public law proceedings serve a different purpose than the private law proceedings. Award of compensation for established infringement of the indefeasible rights guaranteed under Article 21 of the Constitutions is remedy available in public law since the purpose of public law is not only to civilise public power but also to assure the citizens that they live under a legal system wherein their rights and interests shall be protected and preserved. Grant of compensation in proceedings under Article 32 or 226 of the Constitution of India for the established violation or the fundamental rights guaranteed under Article 21, is an exercise of the Courts under the public law jurisdiction for penalising the wrong door and fixing the liability for the public wrong on the State which failed in the discharge of its public duty to protect the fundamental rights of the citizen." 24. In a recent decision in the case of Bhola Kumhar vs. State of Chhattisgarh, 2022 SCC OnLine SC 837 the Hon'ble Apex Court has held that when a person is detained beyond reasonable date it would be imprisonment or detention sans sanction of law and would thus not only violate Article 19(d) but also Article 21 of Constitution of India and thereby held such a person is entitled for compensation in terms of money. The Apex Court has also without making any observation as to civil remedy has passed an order granting compensation to be paid by the State in terms of money holding it vicariously liable for the act committed by its officers in the course of employment. 25. While it is the duty of the court to see that any individual, who crosses the boundaries carved out by law is dealt appropriately, it is also the foremost duty of the courts to uphold the dignity of personal liberty. Taking cue from the above judgements and having found that the detenue has been kept in illegal detention for 128 days, we direct the State to pay a sum of Rs.5,00,000/- to the detenue Tmt. Muthulakshmi w/o Thiru. Manokaran residing at North Nalliyanthottam, Velipalayam & post, Velipalayam police station limit, Nagapattinam taluk, Nagapattinam District, to the detenue towards compensation within 6 weeks from the date of receipt of copy of this order and such amount can be adjusted towards any amount which may be awarded to the detenue by way of damages in the event of the detenue filing any Civil Suit. With the above observation and direction, the Habeas Corpus Petition is closed. Home, Prohibition and Excise Department,
The Madras High Court recently ordered the government to pay five lakh rupees in compensation to two women. They had been held illegally for over four months to prevent them from committing future crimes. The judges said that what happened clearly showed how slow and careless government workers were. This carelessness took away the women's personal freedom, which is a right protected by the Indian Constitution's Article 21. Justices S Vaidyanathan and AD Jagdish Chandira were the judges who made this statement. These women were first taken into custody because a local official in Nagapattinam said they were illegally selling alcohol. However, a special board decided on March 16 that there was no good reason to keep them locked up. But the order to release them was only given on July 22, and only after the court got involved. The court pointed out a specific law (Tamil Nadu Act No. 14 of 1964). This law says that once the Advisory Board gives its opinion, the government must immediately cancel the detention order and free the person. The court stated that the words "shall revoke" (must cancel) and "released forthwith" (released at once) in Section 12(2) of Act 14 of 1982 clearly show that lawmakers intended to strongly protect personal freedom, as guaranteed by the Indian Constitution. After the two women, Muthulakshmi and Sathiya, were held as bootleggers, their families went to the Madras High Court. They filed special requests called "habeas corpus petitions," claiming the women were being held illegally. The court's documents from September 21 showed that after the Advisory Board's opinion was received on March 16, the case file was quickly sent to the minister for approval. Even though the minister's office approved it on March 17, the order to release the women was not given until July 22. This happened only after the court got involved and expressed its anger on July 21. This order came from the Home, Prohibition and Excise Department. The court asked for a report explaining the long delay in releasing the women. The government replied that the delay was due to two officials, an Assistant Section Officer and a Section Officer, who failed to follow up on the file with the Minister's Office. The government also said that they have started disciplinary actions against these officials who made mistakes. In its decision, the court stated that the personal freedom protected by Article 21 of the Constitution applies to everyone, no matter their situation. This right even applies to people who are already in prison after being found guilty. The judges added that a person does not lose this basic right just because they are held under a preventive detention order. The court also used decisions from the Supreme Court (India's highest court) to stress that the government has a duty to protect everyone's basic right to freedom, which is given by the Constitution. The judges stated that while courts must ensure that anyone who breaks the law is dealt with properly, it is also their most important job to protect the value and importance of personal freedom. Therefore, because the women were held illegally for 128 days, the court ordered the government to pay them compensation within six months. The court also said that this money could be used to reduce any other payments the women might get if they later decide to file a separate lawsuit asking for money for the harm they suffered.
“Criminals / Convicts are to be treated with respect, even though they may not deserve it.” The present Habeas Corpus Petition is filed to call for the entire records in connection with the detention order passed in C.O.C.No.12/2022 dated 28.1.2022 on the file of the 2nd respondent herein and set aside the same as illegal and direct the respondents to produce the body or person of the petitioner's wife namely Muthulakshmi, w/o Manokaran, female, aged 38 years, who is detained in Special Prison for Women, Tiruchirappalli before this court and set her at liberty. 2. It is the case of the petitioner that his wife was detained in preventive detention pursuant to the order passed by the second respondent dated 28.1.2022 as a "Bootlegger". 3. The petitioner had raised the following grounds for setting aside the detention order:- i) The detenue was arrested and produced before the Judicial Magistrate I, Nagapattinam on 8.12.2021, but, the detaining authority had passed the detention order against the detenue on 28.1.2022 with a delay of 50 days and that too without mentioning reasons for the delay. ii) The sponsoring authority has failed to inform the arrest of the detenue in ground case to the family members of the detenue, which is in violation of Article 22(1) of the Constitution of India and the dictum laid down by the Apex Court in D.K.Basu vs. State of West Bengal (1997) iii) Despite the fact that the bail petition filed on behalf of the petitioner in Crl.M.P.No.33 of 2022 before the Sessions Court, Nagapattinam was dismissed, the detaining authority has erred in observing that there is a real and imminent possibility of the detenue coming out on bail, which is a clear case of non-application of mind on the part of the detaining authority. iv) The detention order came to be passed on 28.1.2022, however, the booklet was issued after five days without following the procedures contemplated under Section 8(1) of the Act 14/1982. 4. When the matter came up for hearing on 21.7.2022, it was brought to the notice of this court by the learned Additional Public Prosecutor that the Advisory Board has opined that there is no sufficient cause for detention and thereby the order of detention has been revoked by the Government. However, it was represented by the learned counsel for the petitioner that the Government order of revocation had not been communicated to the petitioner till date and the detenue was in continued detention. Finding some seriousness in the issue, the matter was listed on 25.7.2022 to enable the Additional Public Prosecutor to get 5. On 25.7.2022, when the matter was taken up for hearing, the Government order of revocation dated 22.7.2022 was produced by the respondents, a perusal of which revealed that the matter was placed before the Advisory Board and the Advisory Board, as early as on 16.3.2022 had opined that there is no sufficient cause for detention of the petitioner's wife Muthulakshmi, however, the revocation order came to be passed only on 22.7.2022 that too, after the indulgence of this court and thereby the detenue had been detained illegally/unauthorisedly for more than four months from 16.3.2022. 6. This court, while ordering for immediate release of the detenue, directed the first respondent to file a Report stating the reason for the delay in passing the revocation order and identifying the person, who is responsible for the delay. 7. When the matter was called on 28.7.2022, a non-speaking Affidavit was filed by the respondents neither disclosing any reason for the delay nor pointing out name of any official, who is responsible for the delay, but, merely contending that there is no intention on the part of the first respondent to disobey the orders of this court and that departmental action has been initiated against the Assistant Section Officer and Section Officer concerned. Hence, by way of one more opportunity, time was granted to file a better affidavit. 8. Accordingly, an Affidavit dated 3.8.2022 came to be filed by the first respondent contending as under:- "(ii) It is further submitted that the Advisory Board heard the case on 15.03.2022 and opined that there is no sufficient cause for the detention of Tmt.Muthulakshmi and the report of the board was received in Government on 16.03.2022. The file was submitted immediately to revoke the detention of Tmt.Muthulakshmi by the Assistant Section Officer and Section Officer on 16.03.2022 and it was approved by the Under Secretary and Deputy Secretary on the same day itself. Then the file was circulated to the Minister (Electricity, Prohibition and Excise) 16.03.2022 and the Minister approved the file on 17.03.2022, but the file was received by this department only on 22.07.2022. It is also submitted that action has been initiated and Thiru.A.Venkatesan, Section Officer under relevant rule of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, for failing to follow up file with the Minister's office for getting back the file bearing C.No.2133/Home, Prohibition & Excise (XV)/2022 which was circulated to the Minister's office on 16.03.2022. After duly following the stipulated procedures, necessary further action will be taken against erred staff." 9. In such a background, learned counsel appearing for the Petitioner Mr.K.A.S.Prabhu would submit his arguments as under:- i) The impugned detention order did not stand the test of the Advisory Board and it was opined by the Advisory Board on 16.3.2022 that that there is no sufficient cause for detention of the petitioner's wife Muthulakshmi, however, the revocation order came to be passed only on 22.7.2022, in clear violation of Article 21 of the Constitution of India which protects the life and personal liberty of a citizen ii) When the Constitution assures that no person shall be deprived of his personal liberty except according to procedure established by law, in this case, the petitioner's wife had been unnecessarily and illegally detained for a period of 128 days without any authority of law and thereby, the detenue is entitled to award of compensation. iii) The detenue is a victim, who has suffered illegal detention on account of lapses on the part of the Government and the petitioner has filed the Habeas Corpus Petition, which itself is a public law proceedings and thereby, the detenue is entitled to compensation. iv) It is an obligation of the State, to ensure that there is no infringement of the indefeasible rights of a citizen to life, except in accordance with law while the citizen is in its custody and the precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, under trials or other prisoners in custody, except according to procedure established by law and in such event, the High Court, being a protector of the civil liberties of the citizen, has not only the power and jurisdiction to release the prisoner but also an obligation to grant relief of compensation for unlawful and illegal detention in exercise of its jurisdiction under Articles 226 of the Constitution to the victim. 10. Mr.Mohamed Ali Jinnah, learned Public Prosecutor assisted by Mr. M.Babu Muthumeeran, learned Additional Public Prosecutor would submit that there was some administrative delay on the part of the officials in getting the file approved for passing the order of revocation after the receipt of opinion from the Advisory Board. He would further submit though no intention could be attributed on the part of the officials, the erring officials have been proceeded with departmentally for dereliction and appropriate action would be taken against them. He would further submit that the petitioner could very well pursue the remedy in seeking compensation under the civil law and the relief of compensation in this petition can be rejected. 11. Heard the learned counsel appearing for the parties and perused the materials available on record. 12. Since the order of detention passed against the petitioner stands revoked as of now and the petitioner has been released, this court feels that it need not harp on the validity and correctness of the detention order. It is a case where the detenue was detained pursuant to an order dated 28.01.2022. However, in the opinion of the advisory board dated 16.03.2022 that no sufficient cause is available for the detention of the detenue, the Government order of revocation came to be passed only on 22.07.2022. What has to be seen here is whether the detenue is entitled to any compensation and if so, the quantum of such compensation ? "Those who deny freedom to others, deserve it not for themselves" -Abraham Lincoln. 13. The sequence of events in the case on hand reveals beyond any doubt that it is a classic case of bureaucratic lethargy and slumber, which has played a lot in depriving the personal liberty of a citizen guaranteed under Article 21 of the Constitution of India. To understand the gravity of the scenario, we need to have a look into the relevant legal provisions and the guidelines and restrictions thereupon. 14. Section 12(2) of the Tamil Nadu Act 14 of 1982 reads as "(2) In any case where the Advisory Board has reported that there is, in its opinion, no sufficient cause for the detention of the person concerned, the State Government shall revoke the detention order and cause the person to be released forthwith." 15. As per Section 12(2) of Act 14 of 1982, when the Advisory Board opined and reported that there is no sufficient cause for detention of the person concerned, the State Government shall revoke the detention order and cause the person to be released forthwith, whereas, in this case, as stated above, the petitioner has been released after a period of 128 days. "No freedom is higher than personal freedom and no duty is higher than to maintain it 16. Personal liberty of a citizen has been very much guaranteed under Article 21 of the Constitution of India, which reads as under:- "21. Protection of life and personal liberty. No person shall be deprived of his life or personal liberty except according to procedure established by law." 17. A bare perusal of the above provision makes it clear that the protection extended by it covers all Persons. The expression "Person" is not to be confined only to citizens but, it extends to every person regardless of the circumstance in which a person is placed. It implies that the protection guaranteed under the above provision extends even to persons who are undergoing imprisonment as a convict prisoner and he does not lose his fundamental rights merely because he is convicted either as a convict prisoner or detained pursuant to a preventive detention order. 18. A person, if at all, could be deprived of his life or personal liberty only in accordance with the procedure established by law. The scope of Article 21 appears to had been a bit narrow till 1950s and thereafter, it was expanded gradually. The procedure established by law to deprive of life or personal liberty of a person cannot be arbitrary, unfair, unreasonable one or it cannot be whimsical and fanciful. 19. The terms "shall revoke" and "released forthwith" in Section 12(2) of Act 14 of 1982 read together express a strong assertion of the legislature in protecting the personal liberty as guaranteed under the Constitution of India. Whether such intention has been properly appreciated by the respondents in the case on hand is the question posed before us. 20. We can least appreciate if the delay had occurred in various levels to end with the revocation order, whereas, the records produced before us and the submission made on behalf of the respondents reveal that on receipt of opinion from the Advisory Board 16.3.2022, the file was immediately circulated for approval and it was, accordingly, approved by the Ministry on 17.3.2022, however, the revocation order was passed by the office only on 22.7.2022 after the matter was seized of by this court and only after the displeasure shown by the court on 21.7.2022 and not prior to that especially, when the Habeas Corpus Petition stands admitted and notice was ordered on 22.2.2022 itself and it was directed to be listed on 19.4.2022. 21. The sequence of events speaks much despite the slumber on the part of the bureaucracy, which had taken away the personal liberty of the petitioner. The Hon'ble Division Bench of the Delhi High Court in a case of similar circumstances in Pramod Kumar Garg @ Ravinder Chandhok vs. Union of India and others (1994) 29 DRJ (DB) 464; 1994 SCC online Del 346 has held as under:- "10. It has been held that the Act is valid under Article 22 of the Constitution, and, therefore, one has to refer to the provisions of the Act itself for the purpose of passing of the order of detention, the detention, the opinion of the Advisory Board, and action on that by the detaining authority. It is apparent, therefore, that the moment opinion of the Advisory Board is received that there is no sufficient cause for the detention of the detenu, the detaining authority” shall revoke the detention order and cause the person to be released forthwith”. The law as laid does not contemplate any exceptions and we cannot read into this law the case put by the respondents that in spite of opinion of the Advisory Board that there is no sufficient cause for the detention of a person, the detaining authority has, no doubt, to revoke the detention order but that could be done within three months of the date of detention of the detenu irrespective of the fact when opinion of the Advisory Board was received, and that once the detention order is revoked it is for the jail authorities where the person is confined to release him “forthwith”. We do not think such proposition could ever have been advanced by the respondents. Of course, we are not unmindful of the fact that once the opinion of the Advisory Board is received the detenu is not to be released at once and time is required to meet administrative exigencies. As to what the expression “as soon as may be” or the word “forthwith” mean, the Supreme Court has already laid down the guidelines." In this case as stated above the administration has acted with utmost lethargy, thereby keeping the detenue unnecessarily in prison for four 22. In Nilabati Behera vs. State of Orissa (1993) 2 SCC 746, a Three Judges Bench held as under:- "This Court and the High Courts, being the protectors of the civil liberties of the citizen, have not only the power and jurisdiction but also an obligation to grant relief in exercise of its jurisdiction under Articles 32 and 226 of the Constitution to the victim or the heir of the victim whose fundamental rights under Article 21 of the Constitution of India are established to have been flagrantly infringed by calling upon the State to repair the damage done by its officers to the fundamental rights of the citizen, notwithstanding the right of the citizen to the remedy by way of a civil suit or criminal proceedings. The State, of course has the right to be indemnified by and take such action as may be available to it against the wrongdoer in accordance with law through appropriate proceedings. Of course, relief in exercise of the power under Article 32 or 226 would be granted only once it is established that there has been an infringement of the fundamental rights of the citizen and no other form of appropriate redressal by the court in the facts and circumstances of the case, is possible. The decisions of this Court in the line of cases starting with Rudul Sah v. State of Bihar and Anr., [1983] 3 SCR 508 granted monetary relief to the victims for deprivation of their fundamental rights in proceedings through petitions filed under Article 32 or 226 of the Constitution of India, notwithstanding the rights available under the civil law to the aggrieved party where the courts found that grant of such relief was warranted. It is a sound policy to punish the wrongdoer and it is in that spirit that the Courts have molded the relief by granting compensation to the victims in exercise of their writ jurisdiction. In doing so the courts take into account not only the interest of the applicant and the respondent but also the interests of the public as a whole with a view to ensure that public bodies or officials do not act unlawfully and do perform their public duties properly particularly where the fundamental rights of a citizen under Article 21 is concerned. Law is in the process of development and the process necessitates developing separate public law procedures as also public law principles. It may be necessary to identify the situations to which separate proceedings and principles apply And the courts have to act firmly but with certain amount of circumspection and self restraint, lest proceedings under Article 32 or 226 are misused as a disguised substitute for civil action in private law." 23. In D.K.Basu vs. State of W.B. (1997) 1 SCC 416, the Apex Court has held as under:- "The claim in public law for compensation for unconstitutional deprivation of fundamental right to life and liberty, the protection of which is guaranteed under the Constitution, is a claim based on strict liability and is in addition to the claim available in private law for damages of tortious acts of the public servants. Public law proceedings serve a different purpose than the private law proceedings. Award of compensation for established infringement of the indefeasible rights guaranteed under Article 21 of the Constitutions is remedy available in public law since the purpose of public law is not only to civilise public power but also to assure the citizens that they live under a legal system wherein their rights and interests shall be protected and preserved. Grant of compensation in proceedings under Article 32 or 226 of the Constitution of India for the established violation or the fundamental rights guaranteed under Article 21, is an exercise of the Courts under the public law jurisdiction for penalising the wrong door and fixing the liability for the public wrong on the State which failed in the discharge of its public duty to protect the fundamental rights of the citizen." 24. In a recent decision in the case of Bhola Kumhar vs. State of Chhattisgarh, 2022 SCC OnLine SC 837 the Hon'ble Apex Court has held that when a person is detained beyond reasonable date it would be imprisonment or detention sans sanction of law and would thus not only violate Article 19(d) but also Article 21 of Constitution of India and thereby held such a person is entitled for compensation in terms of money. The Apex Court has also without making any observation as to civil remedy has passed an order granting compensation to be paid by the State in terms of money holding it vicariously liable for the act committed by its officers in the course of employment. 25. While it is the duty of the court to see that any individual, who crosses the boundaries carved out by law is dealt appropriately, it is also the foremost duty of the courts to uphold the dignity of personal liberty. Taking cue from the above judgements and having found that the detenue has been kept in illegal detention for 128 days, we direct the State to pay a sum of Rs.5,00,000/- to the detenue Tmt. Muthulakshmi w/o Thiru. Manokaran residing at North Nalliyanthottam, Velipalayam & post, Velipalayam police station limit, Nagapattinam taluk, Nagapattinam District, to the detenue towards compensation within 6 weeks from the date of receipt of copy of this order and such amount can be adjusted towards any amount which may be awarded to the detenue by way of damages in the event of the detenue filing any Civil Suit. With the above observation and direction, the Habeas Corpus Petition is closed. Home, Prohibition and Excise Department,
The Madras High Court recently ordered the government to pay five lakh rupees in compensation to two women. They had been held illegally for over four months to prevent them from committing future crimes. The judges said that what happened clearly showed how slow and careless government workers were. This carelessness took away the women's personal freedom, which is a right protected by the Indian Constitution's Article 21. Justices S Vaidyanathan and AD Jagdish Chandira were the judges who made this statement. These women were first taken into custody because a local official in Nagapattinam said they were illegally selling alcohol. However, a special board decided on March 16 that there was no good reason to keep them locked up. But the order to release them was only given on July 22, and only after the court got involved. The court pointed out a specific law (Tamil Nadu Act No. 14 of 1964). This law says that once the Advisory Board gives its opinion, the government must immediately cancel the detention order and free the person. The court stated that the words "shall revoke" (must cancel) and "released forthwith" (released at once) in Section 12(2) of Act 14 of 1982 clearly show that lawmakers intended to strongly protect personal freedom, as guaranteed by the Indian Constitution. After the two women, Muthulakshmi and Sathiya, were held as bootleggers, their families went to the Madras High Court. They filed special requests called "habeas corpus petitions," claiming the women were being held illegally. The court's documents from September 21 showed that after the Advisory Board's opinion was received on March 16, the case file was quickly sent to the minister for approval. Even though the minister's office approved it on March 17, the order to release the women was not given until July 22. This happened only after the court got involved and expressed its anger on July 21. This order came from the Home, Prohibition and Excise Department. The court asked for a report explaining the long delay in releasing the women. The government replied that the delay was due to two officials, an Assistant Section Officer and a Section Officer, who failed to follow up on the file with the Minister's Office. The government also said that they have started disciplinary actions against these officials who made mistakes. In its decision, the court stated that the personal freedom protected by Article 21 of the Constitution applies to everyone, no matter their situation. This right even applies to people who are already in prison after being found guilty. The judges added that a person does not lose this basic right just because they are held under a preventive detention order. The court also used decisions from the Supreme Court (India's highest court) to stress that the government has a duty to protect everyone's basic right to freedom, which is given by the Constitution. The judges stated that while courts must ensure that anyone who breaks the law is dealt with properly, it is also their most important job to protect the value and importance of personal freedom. Therefore, because the women were held illegally for 128 days, the court ordered the government to pay them compensation within six months. The court also said that this money could be used to reduce any other payments the women might get if they later decide to file a separate lawsuit asking for money for the harm they suffered.
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1. Challenging an order of the National Consumer Disputes Redressal Commission, passed under Section 35(1)(c) of the Consumer Protection Act, 2019, allowing 91 purchasers of 51 apartments in the residential complex developed by them, to file a consumer complaint in a representative capacity, on behalf of and for the benefit of more than about 1000 purchasers, the builder has come up with the above appeal. 2. We have heard Mr. Jayant Bhushan, learned senior counsel for the appellant, Mr. Ajit Kumar Sinha, learned senior counsel for the respondents and Mr. Omanakuttan K. K., learned counsel appearing for the intervenors. 3. About 91 persons who purchased 51 residential apartments, in a residential complex comprising of about 1134 apartments, promoted by the appellant herein, joined together and filed a consumer complaint on the file of the National Consumer Disputes Redressal Commission, New Delhi. The Consumer complaint was accompanied by an application under Section 35(1)(c), seeking the permission of the National Commission to prosecute the matter jointly, for the benefit of and on behalf of, not only of the 91 applicants, but of numerous other consumers who have purchased apartments in the same complex. In other words the consumer complaint filed by those applicants, who are respondents herein, is a class action and the permission sought by them was in the nature of a permission that could be granted by the Civil Court in terms of Order I Rule 8 of the Code of Civil Procedure. 4. Though the builder who is the appellant herein objected to the application under Section 35(1)(c), the National Commission allowed the application by relying upon the decision of this Court in the Chairman, Tamil Nadu Housing Board, Madras vs. T.N. Ganapathy1 and the decision of the National Commission in Ambrish Kumar Shukla vs. Ferrous Infrastructure Pvt. Ltd. Aggrieved by the said Order, the builder has come up with the above 5. The main grievance of the appellant­builder, as projected by Mr. Jayant Bhushan, learned senior counsel is that out of total of 1134 apartments constructed and sold by them, the owners of merely 51 apartments have joined together and invoked the jurisdiction of the National Consumer Commission and that such a miniscule percentage of consumers cannot seek to file the complaint in a representative capacity. It is also the contention of the learned senior counsel for the appellant that there was no commonality of interest or grievance, as some individual apartment owners have also invoked the jurisdiction of the Karnataka State Consumer Disputes Redressal Commission, seeking redressal of their separate and distinct grievances. 6. However, the contention of Mr. Ajit Kumar Sinha, learned counsel appearing on behalf of the respondents/original complainants is that the issue is no longer res integra in view of the decisions of this Court in Chairman, Tamil Nadu Housing Board, Madras vs. T.N. Ganapathy and Vikrant Singh Malik & Ors. vs. Supertech Limited & Ors.2 It is also his contention that the respondents have the sameness of interest with the buyers of all the 1134 apartments, which is a sine qua non for maintaining an application under Section 35(1)(c) and that, therefore, the National Commission was right in allowing the application. 7. Before we get into an analysis of the rival contentions with specific reference to the statutory provisions, it is necessary to look into the reliefs prayed for, by the respondents in their consumer complaint and the pleadings on the basis of which the reliefs were so sought. The reliefs sought by the respondents in their consumer complaint, for the benefit of and on behalf of the purchasers of all the flats in the entire residential complex reads as follows:­ “That in view of the abovementioned facts and circumstances this Hon’ble Commission may graciously be pleased to pass orders and to direct the OP to:­ i. Direct the OP to pay to each of the Complainants and to each buyer having same interest delay compensation, as stipulated in the Sale and Construction Agreements, for unpaid period out of the “Total Period of Delay” as indicated in Para 46 of the Consumer Complaint; ii. Direct the OP to pay to each of the Complainants and to each buyer having same interest, compensatory interest @ 12% p.a. on individual consideration amount paid, for abnormal and inordinate delay in construction, till handing over possession of flats to the complainants, computing total period of delay as indicated in Para 46 iii. Award cost of the Complaint to the Complainants; iv. Pass any other and/or further relief, which this Hon’ble Commission thinks fit and proper, in the facts and cir­ cumstances of the case, in favour of the complainants and against the OP.” 8. The pleadings on the basis of which the respondents sought the aforesaid prayers, in brief, are as follows: (i) that the appellant launched the subject project in the year 2013; (ii) that the project styled as “Brigade Lakefront” was to comprise of about 1100 units in three blocks, namely, Amber block, Blue block and Crimson block; (iii) that Amber block, also called Building No.1, was to have seven wings, namely, Wings A, B, C, D, E, F and G; Blue block, also called Building No.2 was to have Wings H, I, J, K, L, M and N and Crimson block, also called Building Nos.3 and 4 were to have Wings O, P, Q, R, S and T; (iv) that in respect of the flats in Blue block, the promised delivery date was 30.06.2016 with a six months grace period; (v) that though the completion certificate and structural stability certificate were also issued by the Consultant/Architect for the buildings in Blue block on 3.05.2017, the occupancy certificate was issued partially on 28.12.2018 and the occupancy certificate for the balance was issued on 25.06.2019; (vi) that in respect of the buildings in Crimson block, the promised delivery date was 31.01.2018 with a grace period of six months; (vii) that though the completion certificate for the Crimson block was issued by the architect on 10.08.2018, the occupancy certificate was issued partially on 28.12.2018; (viii) that the builder was guilty of unfair trade practice, inasmuch as the terms and conditions of the agreement prescribed a paltry compensation of Rs.5 per square feet to the purchasers, if there was delay in completion of the project, while penal interest was levied on the buyers at 18% p.a. whenever they committed default or delay in making payment; (ix) that on account of the delay on the part of the appellant in handing over possession, the buyers suffered losses in the form of payment of monthly rent, interest on the loans taken and payment of higher registration charges, as the circle rates had gone up in the meantime; and (x) that therefore they were constrained to file a 9. From the aforesaid averments contained in the consumer complaint, it could be seen that the delay on the part of the builder in handing over possession, was the primary ground on which compensation was sought by the respondents. We have already extracted the prayers made in the original complaint. Interestingly the prayer portion of the complaint does not contain the quantification of the total amount of compensation sought by the respondents either individually or collectively for and on behalf of all the purchasers of all the 1134 residential apartments. The prayer portion of the complaint refers to paragraph 46 of the complaint, for the purpose of computation of delay compensation. But paragraph 46 of the complaint does not convey any meaning except if taken into account along with paragraph 45. Therefore, paragraphs 45 and 46 of the complaint are extracted as follows: “45. Computation of “Total Period of Delay”—The Complainants assert that the Total Period of Delay be Delay Period Start – Promised Date of Possession, not Delay Period End – Either of the following two dates based on facts of individual complainants: a. Where possession was taken prior to issuance of Occupancy Certificate, the Date of Occupancy b. Where possession was taken after the issuance of Occupancy Certificate, then Date of possession It would be relevant to state that the meaning and nature of ‘possession’ as stated by the complainants in this para would mean legal possession only where said possession had been given or offered to be given upon confirmation of readiness of the flat for possession, in adherence to Schedule of Construction Agreement. 46. It is clearly and unambiguously inferred that the Buyers shall receive possession by executing the Sale Deed and getting the same registered. Both actual possession and sale deed registration have to be done in unison in accordance with clauses of the agreement for construction. Hence, possession without registering and executing sale deed or vice versa does not together construe to be “possession” for the purpose of calculating the delay suffered by the buyers. If both events are done on separate times, the later date of the two would prevail. It is respectfully submitted that for the given residential project, the date of grant of Occupancy Certificate shall be reckoned as the pivotal event to ascertain delayed possession and calculating compensation based thereon.” 10. Paragraphs 45 and 46 contain a tacit admission that the period of delay in handing over possession of the flats, may vary from buyer to buyer in respect of the purchasers of all the 1134 apartments. This is why the respondents have sought the indulgence of the Commission to compute the delay in respect of each case, on the basis of formulae indicated in paragraph 45. 11. However, paragraph 41 of the consumer complaint contains the valuation of the complaint, at least insofar as the 91 complainants who jointly filed the consumer complaint are concerned. The relevant portion of paragraph 41 of the complaint “It is submitted that as per the Agreement terms reproduced above, OPs are committed to pay meager delay compensation of Rs. 5/­ per sq. ft. of saleable area, per month, which comes to around 0.1% per annum of the sale consideration, or even lesser. On the contrary, the penalty charged by the OPs in case the buyers’ default or delay in paying the instalment is 18% per annum. It is clear that the balance of performance is over 180 times against the buyers who have been bearing the brunt of the absolute mismanagement of project by the OPs. The buyer is not only patiently waiting for the possession but also gets a double whammy to keep paying all the instalments without enjoying the property. Of the total number of complainants those who have preferred to approach this Hon’ble Forum in this instant Complaint, the aggregate value of sale for 51 complainant­buyers alone, is about Rs. 66 Crore whereas the aggregate amount disbursed by the OP so the same buyers, in the name of Delay Compensation is a meager, less than Rs. 10 lakh which is just about 0.1% for the entire of delay of more than 2 years.” 12. Before we proceed further we must record one important fact, namely, that even according to the respondents­complainants, the project comprised of three blocks namely Amber block, Blue block and Crimson block. Amber block was to have seven Wings with 386 apartments. It appears that none of the owners of these 386 apartments in Amber block have joined with the respondents­ complainants. This is why the entire discussion about the delay in completion of the project, with reference to the timeline of events found in paragraph 14 of the consumer complaint, refers only to Blue block and Crimson block. The appellant has given a tabulation in their counter to the original complaint, pointing out that Blue block comprises of 412 apartments, out of which the owners of only 47 apartments have joined in the filing of the complaint and that Crimson block has 336 apartments, out of which the owners of only 4 apartments have joined in the complaint. 13. In view of the fact that none of the owners of the apartments in Amber block have joined in the filing of the complaint, coupled with the fact that there is no pleading with respect to the timeline of the project in respect of Amber block, the consumer complaint filed by the respondents cannot be treated as one representing the owners of 386 apartments in Amber block. The respondents ought to have either included as one of the complainants, the owner of one of the apartments in Amber block or at least made necessary averments in the pleading about the timeline for completion of the Amber block, to make the complaint, as one filed in a representative capacity on behalf of the owners of flats in all the three blocks. Let us now see at least whether the complaint was maintainable in a representative capacity on behalf of the owners of the flats in Blue block and Crimson block, in the light of the requirements of Section 35(1)(c) of 14. Section 35(1)(c) enables one or more consumers, where there are numerous consumers having the same interest, with the permission of the District Commission, to file a complaint, on behalf of or for the benefit of all consumers so interested. It is needless to point out that the sine qua non for invoking Section 35(1)(c) is that all consumers on whose behalf or for whose benefit the provision is invoked, should have the same interest. Interestingly, Section 35(1) (c) uses the disjunction “or” in between two sets of words, namely, (i) “on behalf of”; and (ii) “for the benefit of”. Clause (c) of Sub­ Section (1) of Section 35 reads as under: “one or more consumers, where there are numerous consumers having the same interest, with the permission of the District Commission, on behalf of, or for the benefit of, all consumers so interested.” 15. Therefore, a complaint filed under Section 35(1)(c) could either be “on behalf of” or “for the benefit of” all consumers having the same interest. 16. Section 38(11) of the Consumer Protection Act, 2019 makes the provisions of Order I Rule 8 of the First Schedule to the Code of Civil Procedure, 1908 applicable to cases where the complainant is a consumer referred to in Section 2(5)(v), which defines a ‘complainant’ to mean one or more consumers, where there are numerous consumers having the same interest. 17. Order I Rule 8, CPC, unlike Section 35(1)(c) operates both ways and contains provisions for a two­way traffic. It not only permits plaintiffs to sue in a representative capacity but also permits people to be sued and to be defended in an action, in a representative capacity. Order I Rule 8 reads as follows:­ “8. One person may sue or defend on behalf of all in same interest.—(1) Where there are numerous persons having the same interest in one suit,— (a) one or more of such persons may, with the permission of the Court, sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons (b) the Court may direct that one or more of such persons may sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested. (2) The Court shall, in every case where a permission or direction is given under sub­rule (1), at the plaintiff's expense, give notice of the institution of the suit to all persons so interested, either by personal service, or, where, by reason of the number of persons or any other cause, such service is not reasonably practicable, by public advertisement, as the Court in each case may direct. (3) Any person on whose behalf, or for whose benefit, a suit is instituted, or defended, under sub­rule (1), may apply to the Court to be made a party to such suit. (4) No part of the claim in any such suit shall be abandoned under sub­rule (1), and no such suit shall be withdrawn under sub­rule (3), of rule 1 of Order XXIII, and no agreement, compromise or satisfaction shall be recorded in any such suit under rule 3 of that Order, unless the Court has given, at the plaintiff's expense, notice to all persons so interested in the manner specified in sub­rule (2). (5) Where any person suing or defending in any such suit does not proceed with due diligence in the suit or defence, the Court may substitute in his place any other person having the same interest in the suit. (6) A decree passed in a suit under this rule shall be binding on all persons on whose behalf, or for whose benefit, the suit is instituted, or defended, as the case may be.” 18. In simple terms, the salient features of the stipulations contained in Order I Rule 8 CPC can be summed up as follows: (i) where there are numerous persons having the same interest in one suit, one or more of such persons may, with the permission of the Court, sue on behalf of or for the benefit of all persons so interested; (ii) where there are numerous persons having the same interest in one suit, one or more of such persons may be sued or one or more such persons may defend such suit, on behalf of or for the benefit of all persons so interested; (iii) the Court itself may, without the plaintiffs or defendants seeking any permission under Order I Rule 8(1)(a), direct that one or more such persons may sue or be sued or may defend the suit on behalf of and for the benefit of all (iv) notice of the institution of the suit to all persons so interested either by personal service or by public advertisement should be ordered by the Court in both categories of cases, namely, where permission is given by the Court on the application of the individuals or direction is issued by the Court itself; (v) any person on whose behalf or for whose benefit the suit is instituted or defended may seek to be made a party to the (vi) abandonment of the whole or part of the claim, withdrawal of the suit or the recording of any agreement, compromise or satisfaction shall not be allowed by the Court unless notice to all persons interested in the matter is issued either by personal service or by public advertisement. (vii) the Court may at any time substitute the person suing or defending in a representative capacity, with any other person, if the former was not prosecuting the suit or defence with due diligence. (viii) the decree passed in the suit covered by this Rule will be binding on all persons. 19. The Explanation under Order I Rule 8 is of significance. It distinguishes persons having the same interest in one suit from persons having the same cause of action. To establish sameness of interest, it is not necessary to establish sameness of the cause of 20. The Explanation under Order I Rule 8, is a necessary concomitant of the provisions of the Rules 1 and 3 of Order I. Order I Rule 1, CPC, allows many persons to join in one suit as plaintiffs. Order I, Rule 3 allows many persons to be joined in one suit as defendants. But to fall under Order I Rule 1 or Order I Rule 3, the right to relief should arise out of or be in respect of the same act or transaction allegedly existing in such persons, jointly, severally or in the alternative. To some extent, Rules 1 and 3 of Order I are founded upon the sameness of the cause of action. This is why the Explanation under Order I Rule 8 distinguishes sameness of interest from the sameness of the cause of action. 21. Since “sameness of interest” is the pre­requisite for an application under Order I Rule 8, CPC read with Section 35(1)(c) of the Consumer Protection Act, 2019, it was necessary for the respondents to include in the consumer complaint, sufficient averments that would show sameness of interest. As we have pointed out earlier the total number of residential apartments constructed in three blocks comprising of about 20 wings (7 wings each in Amber and Blue blocks and 6 wings in Crimson block) were 1134. There are no pleadings insofar as the purchasers of 386 residential apartments in the 7 wings of Amber block are concerned. Even in respect of the owners of the remaining 748 residential apartments in blue block and Crimson block, the complaint does not contain any specific averments regarding sameness of interest. The delay in handing over possession of the residential apartments might have given rise to a cause of action for the individual purchasers of flats to sue the builder. But sameness of the cause of action is not equal to sameness of interest. The existence of sameness of interest, has been questioned by the appellant­builder on the ground that delay compensation as stipulated in the Agreements was offered to the purchasers and that some of them accepted the same without any demur or protest, while a few others have refused to accept. It is not clear from the consumer complaint as to how (i) those who have accepted the compensation under protest; (ii) those who accepted without protest; and (iii) those who refused to accept the compensation, have the sameness of interest. 22. The period of delay in the completion of the project and the handing over of possession, does not appear to be uniform in all 1134 cases. The respondents­complainants cannot project sameness of interest for the purchasers in whose case the period of delay was negligible and those in whose cases there was a huge 23. We may have to look at the issue also from the point of view of the buyers. The delay in handing over possession need not necessarily be the only deficiency in service on the part of the appellant­builder. Some of the purchasers of flats may also have other complaints and their right to proceed against appellant cannot be stultified by a few individuals invoking Section 35(1)(c). That a few purchasers have chosen to approach the Karnataka State Consumer Disputes Redressal Commission to ventilate their individual grievances shows that all the 1134 buyers do not have the same interest as that of the respondents. At least if the respondents have given the names of purchasers of all flats on whose behalf the present complaint could be entertained, they would have been better off. But they have not done so. 24. Reliance is placed by the learned senior counsel for the respondents, upon the Judgment of this Court in Chairman, Tamil Nadu Housing Board, Madras vs. T.N. Ganapathy (supra), to drive home the point that the object of Order I Rule 8 is to facilitate the decision of questions in which large number of persons are interested, without recourse to the ordinary procedure and that, therefore, the provision must receive an interpretation which will subserve the object of its enactment. This Court pointed out in the said case that though each of the allottees of plots by the Housing Board may be interested individually in fighting out the demand separately made or likely to be made by the Board, it would not make Order I Rule 8 inapplicable. 25. But the above decision in Tamil Nadu Housing Board (supra) cannot be pressed into service by the respondents for two reasons, namely, (i) that what was questioned in a representative suit in that case, was the additional demand sought to be made by the Housing Board on all the allottees uniformly, for an amount over and above the tentative price originally fixed; and (ii) that in any case this Court restricted the applicability of the decision only to those allottees of the low income group. Therefore, the sameness of interest has to be tested on the basis of the nature of the reliefs claimed and the pleadings that pinpoint the sameness of interest. 26. In Rameshwar Prasad Shrivastava & Ors. vs. Dwarkadhis Projects Private Limited & Ors.3, this Court was concerned with a case where a complaint filed by a group of 19 persons who were allotted residential apartments in a Group Housing Project, came to be dismissed by the National Commission, for want of a proper application under Section 12(1)(c) of the 1986 Act [equivalent to Section 35(1)(c) of the 2019 Act]. After referring to the definition of the expression “complainant” in Section 2(1)(b)(iv) of the 1986 Act and the requirement of Section 13(6) of the 1986 Act, this Court upheld the Order of the National Commission holding the complaint to be not maintainable. This Court held that the requirement of Order I Rule 8 prescribed in Section 13(6) of the 1986 Act should be read into Section 12(1)(c) of the 1986 Act. 27. In Anjum Hussain and Ors. vs. Intellicity Business Park Private Limited and Ors.4, this Court reversed the decision of the National Commission which dismissed an application under Section 12(1)(c) of the 1986 Act, on the ground that the object of Section 12(1)(c) is to reduce multiplicity of proceedings and that, therefore, it must receive an interpretation which would subserve the object of its enactment. 28. In Vikrant Singh Malik and Ors. vs. Supertech Limited and Ors. (supra), this Court upheld the order of the National Commission that dismissed an application under Section 12(1)(c) of the 1986 Act, on the ground that the reliefs prayed for in the consumer complaint, were confined only to 26 complainants and that even the pleadings as framed and drawn up, highlighted only the specific grievances of those 26 complainants. 29. All the above decisions show that for allowing an application under Section 12(1)(c) of the 1986 Act or Section 35(1)(c) of the 2019 Act, the pleadings and the reliefs are to be considered. If so considered, the National Commission could not have granted permission to the respondents in this case, to file the complaint in a representative capacity for and on behalf of the owners of all the 1134 flats. 30. That takes us to the next question as to the fate of the complaint filed by the respondents. It is sought to be contended that once the application under Section 35(1)(c) is held liable to be rejected, the complaint should also go, as more than one consumer cannot institute a complaint unless they come within the definition of the word “complainant” and also satisfy the requirements of Section 38(11) read with Order I Rule 8 CPC. 31. It is true that the definition of the word “complainant” is little misleading. Section 2(5) of the Consumer Protection Act, 2019 reads (ii) any voluntary consumer association registered under any law (iii) the Central Government or any State Government; or (v) one or more consumers, where there are numerous consumers (vi) in case of death of a consumer, his legal heir or legal represen­ (vii) in case of a consumer being a minor, his parent or legal “38. Procedure on admission of complaint. (11) Where the complainant is a consumer referred to in sub­clause (v) of clause (5) of section 2, the provisions of Order I Rule 8 of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908) shall apply subject to the modification that every reference therein to a suit or decree shall be construed as a reference to a complaint or the order of the District Commission thereon.” “35. Manner in which complaint shall be made.­ (1) A complaint, in relation to any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided, may be filed with a District Commission by— (i) to whom such goods are sold or delivered or agreed to be sold or delivered or such service is provided or (ii) who alleges unfair trade practice in respect of such (b) any recognised consumer association, whether the con­ sumer to whom such goods are sold or delivered or agreed to be sold or delivered or such service is pro­ vided or agreed to be provided, or who alleges unfair trade practice in respect of such goods or service, is a (c) one or more consumers, where there are numerous con­ sumers having the same interest, with the permission of the District Commission, on behalf of, or for the benefit (d) the Central Government, the Central Authority or the Provided that the complaint under this sub­section may be filed electronically in such manner as may be prescribed. 34. A careful reading of the above provisions would show that there is no scope for the contention that wherever there are more consumers than one, they must only take recourse to Order I Rule 8 CPC, even if the complaint is not on behalf of or for the benefit of, all the consumers interested in the matter. There may be cases where only “a few consumers” and not “numerous consumers” have the same interest. There is nothing in the Act to prohibit these few consumers from joining together and filing a joint complaint. A joint complaint stands in contrast to a complaint filed in a representative capacity. For attracting the provisions of Section 35(1)(c), the complaint filed by one or more consumers should be on behalf of or for the benefit of numerous consumers having same interest. It does not mean that where there are only very few consumers having the same interest, they cannot even join together and file a single complaint, but should take recourse only to independent and separate complaints. 35. It is true that Section 2(5)(i) uses the expression “a consumer”. If the vowel “a” and the word “consumer” appearing in Section 2(5)(i) are to be understood to exclude more than one person, it will result in a disastrous consequence while reading Section 2(5)(vi). Section 2(5)(vi) states that in the case of death of a consumer, “his legal heir or legal representative” will be a complainant. Unless the words “legal heir” and “legal representative” are understood to mean ‘legal heirs’ and ‘legal representatives’, a meaningful reading of the provision may not be there. 36. Under Section 13(2) of the General Clauses Act, 1897, words in the singular shall include the plural and vice versa in all Central Acts and Regulations, unless there is anything repugnant in the subject or context. We cannot read anything repugnant in the subject or context of Section 2(5) or 35(1)(c) or 38(11) of the Consumer Protection Act, 2019 to hold that the word in the singular, namely, “consumer” will not include the plural. 37. We may take for example a case where a residential apartment is purchased by the husband and wife jointly or by a parent and child jointly. If they have a grievance against the builder, both of them are entitled to file a complaint jointly. Such a complaint will not fall under Section 35(1)(c) but fall under Section 35(1)(a). Persons filing such a complaint cannot be excluded from Section 2(5)(i) on the ground that it is not by a single consumer. It cannot also be treated as one by persons falling under Section 2(5)(v) attracting the application of Order I Rule 8 CPC read with Section 38. Therefore, the proper way of interpreting Section 35(1) read with section 2(5), would be to say that a complaint may be filed: (i) by a single consumer; (ii) by a recognised consumer Association; (iii) by one or more consumers jointly, seeking the redressal of their own grievances without representing other consumers who may or may not have the same interest; (iv) by one or more consumers on behalf of or for the benefit of numerous consumers; and (v) the Central Government, Central Authority or State Authority. 39. It must be remembered that the provisions of the Consumer Protection Act are in addition to and not in derogation of the provisions of any other law for the time being in force, by virtue of Section 100. Even Section 38 which prescribes the procedure to be followed by the Commission for enquiring into the complaint, does not expressly exclude the application of the provisions of CPC. Though Sub­sections (9), (11) and (12) of Section 38 make specific reference only to a few provisions of the Code of Civil Procedure, the principle behind Order I Rule 1 enabling more than one person to join in a suit as plaintiff is not expressly excluded. 40. Therefore, we are of the considered view that while the National Commission was wrong in this case, in the peculiar facts and circumstances in permitting an application under Section 35(1)(c) read with Order I Rule 8 CPC, it does not mean that the complaint filed by the respondents itself is liable to be thrown out. The complaint filed by the respondents may have to be treated as a joint complaint and not a complaint in a representative capacity on behalf of 1134 purchasers. The purchasers of other flats, such as the intervenors herein may join as parties to the consumer complaint, if they so desire. As a matter of fact, it is stated by the intervenors that pursuant to the impugned order, advertisements were issued and the intervenors have already filed impleadment application before the National Commission. They are entitled to be 41. In view of the above, the appeal is allowed, the impugned order of the National Commission is modified to the effect that the complaint filed by the respondents shall be treated as a joint complaint filed on behalf of only the respondents herein and not as a complaint filed in a representative capacity on behalf of or for the benefit of all the owners of all the 1134 flats. Persons who wish to implead themselves as parties to the complaint filed by the respondents, may be allowed by the National Commission to do so, provided their grievance is also limited to the grievance as projected by the respondents in their consumer complaint. The intervenors herein, in view of what is stated in their application, shall also be allowed to be impleaded in the consumer complaint. The intervention application is closed with the above direction. There shall be no order as to costs.
The Supreme Court has decided that if several customers have a similar problem, they don't always have to file a special type of complaint called a "representative capacity" complaint under Section 35(1)(c) of the Consumer Protection Act of 2019. Instead, these few customers can simply team up and file one complaint together. The Court noted that the Consumer Protection Act of 2019 does not stop a small group of customers from joining forces to file a single complaint. The Court explained how a "joint complaint" is different from a complaint filed in a "representative capacity." The Court said that looking closely at the law shows there's no rule forcing multiple customers to use a specific legal procedure (like Order I Rule 8 CPC) just because there are many of them, especially if their complaint isn't meant to help *all* customers who might be affected. Sometimes, only a small number of customers, not a huge crowd, have the same problem. The law doesn't stop these few customers from filing a joint complaint. A joint complaint is different from a "representative capacity" complaint. For a "representative capacity" complaint under Section 35(1)(c), one or more customers must file it for the good of *many* customers who share the same issue. This doesn't mean that if only a few customers have the same problem, they can't team up and file one complaint. They don't have to file separate complaints. The Court also pointed out that even though Section 2(5)(i) of the Act (which explains what a "complainant" is) uses the singular term "a consumer," this term should be understood to include multiple consumers. The Court explained that according to Section 13(2) of the General Clauses Act of 1897, a singular word usually also means its plural form in all Central Acts and rules, unless it clearly makes no sense in that situation. The Court found nothing in the Consumer Protection Act of 2019 (specifically Sections 2(5), 35(1)(c), or 38(11)) that would prevent the word "consumer" (singular) from also including "consumers" (plural). To make its point clearer, the Court gave the following example: "Imagine a situation where a husband and wife, or a parent and child, buy an apartment together. If they have a problem with the builder, both of them have the right to file a complaint as a team. This kind of complaint wouldn't be handled under Section 35(1)(c) (representative capacity) but rather under Section 35(1)(a) (a standard complaint). People filing such a complaint can't be stopped just because it's not filed by a single consumer. It also shouldn't be treated as a complaint that would automatically require using a specific legal procedure (Order I Rule 8 CPC), which applies to certain group complaints." When can a consumer complaint in representative capacity can be filed The court explained that to file a "representative capacity" consumer complaint under Section 35(1)(c) of the Consumer Protection Act of 2019, the complaint must be filed by one or more customers on behalf of, or for the good of, many other customers who all have the same problem. The judges, Justices Hemant Gupta and V Ramasubramanian, were reviewing an appeal against a decision made by the National Consumer Disputes Redressal Commission (NCDRC). This NCDRC decision, which was being challenged, had been made under Section 35(1)(c) of the Act. In the decision that was being challenged, the NCDRC had allowed 91 people who bought 51 apartments in a housing complex to file a consumer complaint in a "representative capacity." This meant they were acting on behalf of, and for the benefit of, over 1000 other buyers. The builder then filed this appeal against that decision. When the Supreme Court allowed the appeal (meaning they sided with the builder), the judges in the case of Brigade Enterprises Limited V. Anil Kumar Virmani & Ors stated that "having the same interest" was a main requirement for filing a complaint using Order I Rule 8 CPC alongside Section 35(1)(c) of the Consumer Protection Act of 2019. Because of this, the people who filed the complaint (the respondents) needed to include enough clear statements in their complaint to show that all the consumers truly had the "same interest." The judges also pointed out that delays in giving buyers their apartments might give each individual buyer a reason to sue the builder. However, having the "same reason to sue" is not the same as having a "sameness of interest" for a group complaint. Factual Background Roughly 91 people who bought 51 apartments in a large housing complex of about 1134 apartments (built by Brigade Enterprises Limited, the company appealing the case) joined together and filed a consumer complaint with the National Consumer Disputes Redressal Commission in New Delhi. This consumer complaint also included a request under Section 35(1)(c). They asked the National Commission for permission to handle the case together, not just for the 91 people who applied, but also for many other customers who had bought apartments in the same complex. Even though the builder opposed this request under Section 35(1)(c), the National Commission still allowed it. They based their decision on earlier rulings from the Supreme Court and the National Commission itself. Unhappy with this decision, the builder took their case to the Supreme Court. Submission of Counsels The builder's lawyer, Senior Advocate Jayant Bhushan, argued that only owners of 51 out of 1134 apartments had joined together. He said such a tiny number of customers couldn't file a complaint on behalf of everyone else (in a "representative capacity"). He also argued that there was no shared interest or problem, especially since some individual apartment owners had already filed their own separate complaints with a different consumer commission in Karnataka. Senior Advocate Ajit Kumar Sinha, representing the apartment buyers, argued that this issue was already settled because of previous Supreme Court decisions. He also claimed that the buyers shared the "same interest" with all the other 1134 apartment buyers, which is a necessary condition for filing a complaint under Section 35(1)(c). Therefore, he believed the National Commission was correct to allow their request. Lawyer Omanakuttan KK represented other people who had joined the case because they also had an interest in its outcome. Supreme Court's Analysis The judgment, written by Justice V Ramasubramanian, explained that Section 35(1)(c) of the Act allows one or more customers to file a complaint for the benefit of many other customers who have the same problem, provided they get permission from the District Commission. The Court further noted that the essential condition for using Section 35(1)(c) is that all the customers who are being represented must indeed share the same interest. The judges pointed out that Section 38(11) of the Act states that certain rules from the Code of Civil Procedure of 1908 (specifically Order I Rule 8) apply to cases where a customer is filing a complaint. They then said: "Order I Rule 8, CPC, is different from Section 35(1)(c) because it works in two directions. It doesn't just allow people to file lawsuits on behalf of a group (acting in a representative capacity), but it also allows people to be The judges focused on a legal rule called Order I Rule 8. They explained that this rule shows a difference between people who have a similar concern in a lawsuit and those who were harmed in the exact same way. The judges also noted that to show people have the same interest, they don't necessarily need to have been harmed in the same exact way. The judges looked at the legal definition of a "complainant" (the person who files a complaint) in Section 2(5) of the law. They explained that when you combine this with Section 35(1), it means a complaint can be filed in these ways: (i) by one customer alone; (ii) by an official customer group; (iii) by several customers together, trying to fix their own issues without acting for other customers who might or might not have similar issues; (iv) by one or more customers who are acting for or helping many other customers; and (v) by the national or state government or its agencies. The judges approved the appeal, meaning they agreed to re-examine the case. They changed the decision made by the NCDRC (a consumer court) to say that the complaint filed by the people who originally sued could only be considered a complaint for those specific individuals. It could not be seen as a complaint filed on behalf of all 1134 apartment owners.
1. Challenging an order of the National Consumer Disputes Redressal Commission, passed under Section 35(1)(c) of the Consumer Protection Act, 2019, allowing 91 purchasers of 51 apartments in the residential complex developed by them, to file a consumer complaint in a representative capacity, on behalf of and for the benefit of more than about 1000 purchasers, the builder has come up with the above appeal. 2. We have heard Mr. Jayant Bhushan, learned senior counsel for the appellant, Mr. Ajit Kumar Sinha, learned senior counsel for the respondents and Mr. Omanakuttan K. K., learned counsel appearing for the intervenors. 3. About 91 persons who purchased 51 residential apartments, in a residential complex comprising of about 1134 apartments, promoted by the appellant herein, joined together and filed a consumer complaint on the file of the National Consumer Disputes Redressal Commission, New Delhi. The Consumer complaint was accompanied by an application under Section 35(1)(c), seeking the permission of the National Commission to prosecute the matter jointly, for the benefit of and on behalf of, not only of the 91 applicants, but of numerous other consumers who have purchased apartments in the same complex. In other words the consumer complaint filed by those applicants, who are respondents herein, is a class action and the permission sought by them was in the nature of a permission that could be granted by the Civil Court in terms of Order I Rule 8 of the Code of Civil Procedure. 4. Though the builder who is the appellant herein objected to the application under Section 35(1)(c), the National Commission allowed the application by relying upon the decision of this Court in the Chairman, Tamil Nadu Housing Board, Madras vs. T.N. Ganapathy1 and the decision of the National Commission in Ambrish Kumar Shukla vs. Ferrous Infrastructure Pvt. Ltd. Aggrieved by the said Order, the builder has come up with the above 5. The main grievance of the appellant­builder, as projected by Mr. Jayant Bhushan, learned senior counsel is that out of total of 1134 apartments constructed and sold by them, the owners of merely 51 apartments have joined together and invoked the jurisdiction of the National Consumer Commission and that such a miniscule percentage of consumers cannot seek to file the complaint in a representative capacity. It is also the contention of the learned senior counsel for the appellant that there was no commonality of interest or grievance, as some individual apartment owners have also invoked the jurisdiction of the Karnataka State Consumer Disputes Redressal Commission, seeking redressal of their separate and distinct grievances. 6. However, the contention of Mr. Ajit Kumar Sinha, learned counsel appearing on behalf of the respondents/original complainants is that the issue is no longer res integra in view of the decisions of this Court in Chairman, Tamil Nadu Housing Board, Madras vs. T.N. Ganapathy and Vikrant Singh Malik & Ors. vs. Supertech Limited & Ors.2 It is also his contention that the respondents have the sameness of interest with the buyers of all the 1134 apartments, which is a sine qua non for maintaining an application under Section 35(1)(c) and that, therefore, the National Commission was right in allowing the application. 7. Before we get into an analysis of the rival contentions with specific reference to the statutory provisions, it is necessary to look into the reliefs prayed for, by the respondents in their consumer complaint and the pleadings on the basis of which the reliefs were so sought. The reliefs sought by the respondents in their consumer complaint, for the benefit of and on behalf of the purchasers of all the flats in the entire residential complex reads as follows:­ “That in view of the abovementioned facts and circumstances this Hon’ble Commission may graciously be pleased to pass orders and to direct the OP to:­ i. Direct the OP to pay to each of the Complainants and to each buyer having same interest delay compensation, as stipulated in the Sale and Construction Agreements, for unpaid period out of the “Total Period of Delay” as indicated in Para 46 of the Consumer Complaint; ii. Direct the OP to pay to each of the Complainants and to each buyer having same interest, compensatory interest @ 12% p.a. on individual consideration amount paid, for abnormal and inordinate delay in construction, till handing over possession of flats to the complainants, computing total period of delay as indicated in Para 46 iii. Award cost of the Complaint to the Complainants; iv. Pass any other and/or further relief, which this Hon’ble Commission thinks fit and proper, in the facts and cir­ cumstances of the case, in favour of the complainants and against the OP.” 8. The pleadings on the basis of which the respondents sought the aforesaid prayers, in brief, are as follows: (i) that the appellant launched the subject project in the year 2013; (ii) that the project styled as “Brigade Lakefront” was to comprise of about 1100 units in three blocks, namely, Amber block, Blue block and Crimson block; (iii) that Amber block, also called Building No.1, was to have seven wings, namely, Wings A, B, C, D, E, F and G; Blue block, also called Building No.2 was to have Wings H, I, J, K, L, M and N and Crimson block, also called Building Nos.3 and 4 were to have Wings O, P, Q, R, S and T; (iv) that in respect of the flats in Blue block, the promised delivery date was 30.06.2016 with a six months grace period; (v) that though the completion certificate and structural stability certificate were also issued by the Consultant/Architect for the buildings in Blue block on 3.05.2017, the occupancy certificate was issued partially on 28.12.2018 and the occupancy certificate for the balance was issued on 25.06.2019; (vi) that in respect of the buildings in Crimson block, the promised delivery date was 31.01.2018 with a grace period of six months; (vii) that though the completion certificate for the Crimson block was issued by the architect on 10.08.2018, the occupancy certificate was issued partially on 28.12.2018; (viii) that the builder was guilty of unfair trade practice, inasmuch as the terms and conditions of the agreement prescribed a paltry compensation of Rs.5 per square feet to the purchasers, if there was delay in completion of the project, while penal interest was levied on the buyers at 18% p.a. whenever they committed default or delay in making payment; (ix) that on account of the delay on the part of the appellant in handing over possession, the buyers suffered losses in the form of payment of monthly rent, interest on the loans taken and payment of higher registration charges, as the circle rates had gone up in the meantime; and (x) that therefore they were constrained to file a 9. From the aforesaid averments contained in the consumer complaint, it could be seen that the delay on the part of the builder in handing over possession, was the primary ground on which compensation was sought by the respondents. We have already extracted the prayers made in the original complaint. Interestingly the prayer portion of the complaint does not contain the quantification of the total amount of compensation sought by the respondents either individually or collectively for and on behalf of all the purchasers of all the 1134 residential apartments. The prayer portion of the complaint refers to paragraph 46 of the complaint, for the purpose of computation of delay compensation. But paragraph 46 of the complaint does not convey any meaning except if taken into account along with paragraph 45. Therefore, paragraphs 45 and 46 of the complaint are extracted as follows: “45. Computation of “Total Period of Delay”—The Complainants assert that the Total Period of Delay be Delay Period Start – Promised Date of Possession, not Delay Period End – Either of the following two dates based on facts of individual complainants: a. Where possession was taken prior to issuance of Occupancy Certificate, the Date of Occupancy b. Where possession was taken after the issuance of Occupancy Certificate, then Date of possession It would be relevant to state that the meaning and nature of ‘possession’ as stated by the complainants in this para would mean legal possession only where said possession had been given or offered to be given upon confirmation of readiness of the flat for possession, in adherence to Schedule of Construction Agreement. 46. It is clearly and unambiguously inferred that the Buyers shall receive possession by executing the Sale Deed and getting the same registered. Both actual possession and sale deed registration have to be done in unison in accordance with clauses of the agreement for construction. Hence, possession without registering and executing sale deed or vice versa does not together construe to be “possession” for the purpose of calculating the delay suffered by the buyers. If both events are done on separate times, the later date of the two would prevail. It is respectfully submitted that for the given residential project, the date of grant of Occupancy Certificate shall be reckoned as the pivotal event to ascertain delayed possession and calculating compensation based thereon.” 10. Paragraphs 45 and 46 contain a tacit admission that the period of delay in handing over possession of the flats, may vary from buyer to buyer in respect of the purchasers of all the 1134 apartments. This is why the respondents have sought the indulgence of the Commission to compute the delay in respect of each case, on the basis of formulae indicated in paragraph 45. 11. However, paragraph 41 of the consumer complaint contains the valuation of the complaint, at least insofar as the 91 complainants who jointly filed the consumer complaint are concerned. The relevant portion of paragraph 41 of the complaint “It is submitted that as per the Agreement terms reproduced above, OPs are committed to pay meager delay compensation of Rs. 5/­ per sq. ft. of saleable area, per month, which comes to around 0.1% per annum of the sale consideration, or even lesser. On the contrary, the penalty charged by the OPs in case the buyers’ default or delay in paying the instalment is 18% per annum. It is clear that the balance of performance is over 180 times against the buyers who have been bearing the brunt of the absolute mismanagement of project by the OPs. The buyer is not only patiently waiting for the possession but also gets a double whammy to keep paying all the instalments without enjoying the property. Of the total number of complainants those who have preferred to approach this Hon’ble Forum in this instant Complaint, the aggregate value of sale for 51 complainant­buyers alone, is about Rs. 66 Crore whereas the aggregate amount disbursed by the OP so the same buyers, in the name of Delay Compensation is a meager, less than Rs. 10 lakh which is just about 0.1% for the entire of delay of more than 2 years.” 12. Before we proceed further we must record one important fact, namely, that even according to the respondents­complainants, the project comprised of three blocks namely Amber block, Blue block and Crimson block. Amber block was to have seven Wings with 386 apartments. It appears that none of the owners of these 386 apartments in Amber block have joined with the respondents­ complainants. This is why the entire discussion about the delay in completion of the project, with reference to the timeline of events found in paragraph 14 of the consumer complaint, refers only to Blue block and Crimson block. The appellant has given a tabulation in their counter to the original complaint, pointing out that Blue block comprises of 412 apartments, out of which the owners of only 47 apartments have joined in the filing of the complaint and that Crimson block has 336 apartments, out of which the owners of only 4 apartments have joined in the complaint. 13. In view of the fact that none of the owners of the apartments in Amber block have joined in the filing of the complaint, coupled with the fact that there is no pleading with respect to the timeline of the project in respect of Amber block, the consumer complaint filed by the respondents cannot be treated as one representing the owners of 386 apartments in Amber block. The respondents ought to have either included as one of the complainants, the owner of one of the apartments in Amber block or at least made necessary averments in the pleading about the timeline for completion of the Amber block, to make the complaint, as one filed in a representative capacity on behalf of the owners of flats in all the three blocks. Let us now see at least whether the complaint was maintainable in a representative capacity on behalf of the owners of the flats in Blue block and Crimson block, in the light of the requirements of Section 35(1)(c) of 14. Section 35(1)(c) enables one or more consumers, where there are numerous consumers having the same interest, with the permission of the District Commission, to file a complaint, on behalf of or for the benefit of all consumers so interested. It is needless to point out that the sine qua non for invoking Section 35(1)(c) is that all consumers on whose behalf or for whose benefit the provision is invoked, should have the same interest. Interestingly, Section 35(1) (c) uses the disjunction “or” in between two sets of words, namely, (i) “on behalf of”; and (ii) “for the benefit of”. Clause (c) of Sub­ Section (1) of Section 35 reads as under: “one or more consumers, where there are numerous consumers having the same interest, with the permission of the District Commission, on behalf of, or for the benefit of, all consumers so interested.” 15. Therefore, a complaint filed under Section 35(1)(c) could either be “on behalf of” or “for the benefit of” all consumers having the same interest. 16. Section 38(11) of the Consumer Protection Act, 2019 makes the provisions of Order I Rule 8 of the First Schedule to the Code of Civil Procedure, 1908 applicable to cases where the complainant is a consumer referred to in Section 2(5)(v), which defines a ‘complainant’ to mean one or more consumers, where there are numerous consumers having the same interest. 17. Order I Rule 8, CPC, unlike Section 35(1)(c) operates both ways and contains provisions for a two­way traffic. It not only permits plaintiffs to sue in a representative capacity but also permits people to be sued and to be defended in an action, in a representative capacity. Order I Rule 8 reads as follows:­ “8. One person may sue or defend on behalf of all in same interest.—(1) Where there are numerous persons having the same interest in one suit,— (a) one or more of such persons may, with the permission of the Court, sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons (b) the Court may direct that one or more of such persons may sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested. (2) The Court shall, in every case where a permission or direction is given under sub­rule (1), at the plaintiff's expense, give notice of the institution of the suit to all persons so interested, either by personal service, or, where, by reason of the number of persons or any other cause, such service is not reasonably practicable, by public advertisement, as the Court in each case may direct. (3) Any person on whose behalf, or for whose benefit, a suit is instituted, or defended, under sub­rule (1), may apply to the Court to be made a party to such suit. (4) No part of the claim in any such suit shall be abandoned under sub­rule (1), and no such suit shall be withdrawn under sub­rule (3), of rule 1 of Order XXIII, and no agreement, compromise or satisfaction shall be recorded in any such suit under rule 3 of that Order, unless the Court has given, at the plaintiff's expense, notice to all persons so interested in the manner specified in sub­rule (2). (5) Where any person suing or defending in any such suit does not proceed with due diligence in the suit or defence, the Court may substitute in his place any other person having the same interest in the suit. (6) A decree passed in a suit under this rule shall be binding on all persons on whose behalf, or for whose benefit, the suit is instituted, or defended, as the case may be.” 18. In simple terms, the salient features of the stipulations contained in Order I Rule 8 CPC can be summed up as follows: (i) where there are numerous persons having the same interest in one suit, one or more of such persons may, with the permission of the Court, sue on behalf of or for the benefit of all persons so interested; (ii) where there are numerous persons having the same interest in one suit, one or more of such persons may be sued or one or more such persons may defend such suit, on behalf of or for the benefit of all persons so interested; (iii) the Court itself may, without the plaintiffs or defendants seeking any permission under Order I Rule 8(1)(a), direct that one or more such persons may sue or be sued or may defend the suit on behalf of and for the benefit of all (iv) notice of the institution of the suit to all persons so interested either by personal service or by public advertisement should be ordered by the Court in both categories of cases, namely, where permission is given by the Court on the application of the individuals or direction is issued by the Court itself; (v) any person on whose behalf or for whose benefit the suit is instituted or defended may seek to be made a party to the (vi) abandonment of the whole or part of the claim, withdrawal of the suit or the recording of any agreement, compromise or satisfaction shall not be allowed by the Court unless notice to all persons interested in the matter is issued either by personal service or by public advertisement. (vii) the Court may at any time substitute the person suing or defending in a representative capacity, with any other person, if the former was not prosecuting the suit or defence with due diligence. (viii) the decree passed in the suit covered by this Rule will be binding on all persons. 19. The Explanation under Order I Rule 8 is of significance. It distinguishes persons having the same interest in one suit from persons having the same cause of action. To establish sameness of interest, it is not necessary to establish sameness of the cause of 20. The Explanation under Order I Rule 8, is a necessary concomitant of the provisions of the Rules 1 and 3 of Order I. Order I Rule 1, CPC, allows many persons to join in one suit as plaintiffs. Order I, Rule 3 allows many persons to be joined in one suit as defendants. But to fall under Order I Rule 1 or Order I Rule 3, the right to relief should arise out of or be in respect of the same act or transaction allegedly existing in such persons, jointly, severally or in the alternative. To some extent, Rules 1 and 3 of Order I are founded upon the sameness of the cause of action. This is why the Explanation under Order I Rule 8 distinguishes sameness of interest from the sameness of the cause of action. 21. Since “sameness of interest” is the pre­requisite for an application under Order I Rule 8, CPC read with Section 35(1)(c) of the Consumer Protection Act, 2019, it was necessary for the respondents to include in the consumer complaint, sufficient averments that would show sameness of interest. As we have pointed out earlier the total number of residential apartments constructed in three blocks comprising of about 20 wings (7 wings each in Amber and Blue blocks and 6 wings in Crimson block) were 1134. There are no pleadings insofar as the purchasers of 386 residential apartments in the 7 wings of Amber block are concerned. Even in respect of the owners of the remaining 748 residential apartments in blue block and Crimson block, the complaint does not contain any specific averments regarding sameness of interest. The delay in handing over possession of the residential apartments might have given rise to a cause of action for the individual purchasers of flats to sue the builder. But sameness of the cause of action is not equal to sameness of interest. The existence of sameness of interest, has been questioned by the appellant­builder on the ground that delay compensation as stipulated in the Agreements was offered to the purchasers and that some of them accepted the same without any demur or protest, while a few others have refused to accept. It is not clear from the consumer complaint as to how (i) those who have accepted the compensation under protest; (ii) those who accepted without protest; and (iii) those who refused to accept the compensation, have the sameness of interest. 22. The period of delay in the completion of the project and the handing over of possession, does not appear to be uniform in all 1134 cases. The respondents­complainants cannot project sameness of interest for the purchasers in whose case the period of delay was negligible and those in whose cases there was a huge 23. We may have to look at the issue also from the point of view of the buyers. The delay in handing over possession need not necessarily be the only deficiency in service on the part of the appellant­builder. Some of the purchasers of flats may also have other complaints and their right to proceed against appellant cannot be stultified by a few individuals invoking Section 35(1)(c). That a few purchasers have chosen to approach the Karnataka State Consumer Disputes Redressal Commission to ventilate their individual grievances shows that all the 1134 buyers do not have the same interest as that of the respondents. At least if the respondents have given the names of purchasers of all flats on whose behalf the present complaint could be entertained, they would have been better off. But they have not done so. 24. Reliance is placed by the learned senior counsel for the respondents, upon the Judgment of this Court in Chairman, Tamil Nadu Housing Board, Madras vs. T.N. Ganapathy (supra), to drive home the point that the object of Order I Rule 8 is to facilitate the decision of questions in which large number of persons are interested, without recourse to the ordinary procedure and that, therefore, the provision must receive an interpretation which will subserve the object of its enactment. This Court pointed out in the said case that though each of the allottees of plots by the Housing Board may be interested individually in fighting out the demand separately made or likely to be made by the Board, it would not make Order I Rule 8 inapplicable. 25. But the above decision in Tamil Nadu Housing Board (supra) cannot be pressed into service by the respondents for two reasons, namely, (i) that what was questioned in a representative suit in that case, was the additional demand sought to be made by the Housing Board on all the allottees uniformly, for an amount over and above the tentative price originally fixed; and (ii) that in any case this Court restricted the applicability of the decision only to those allottees of the low income group. Therefore, the sameness of interest has to be tested on the basis of the nature of the reliefs claimed and the pleadings that pinpoint the sameness of interest. 26. In Rameshwar Prasad Shrivastava & Ors. vs. Dwarkadhis Projects Private Limited & Ors.3, this Court was concerned with a case where a complaint filed by a group of 19 persons who were allotted residential apartments in a Group Housing Project, came to be dismissed by the National Commission, for want of a proper application under Section 12(1)(c) of the 1986 Act [equivalent to Section 35(1)(c) of the 2019 Act]. After referring to the definition of the expression “complainant” in Section 2(1)(b)(iv) of the 1986 Act and the requirement of Section 13(6) of the 1986 Act, this Court upheld the Order of the National Commission holding the complaint to be not maintainable. This Court held that the requirement of Order I Rule 8 prescribed in Section 13(6) of the 1986 Act should be read into Section 12(1)(c) of the 1986 Act. 27. In Anjum Hussain and Ors. vs. Intellicity Business Park Private Limited and Ors.4, this Court reversed the decision of the National Commission which dismissed an application under Section 12(1)(c) of the 1986 Act, on the ground that the object of Section 12(1)(c) is to reduce multiplicity of proceedings and that, therefore, it must receive an interpretation which would subserve the object of its enactment. 28. In Vikrant Singh Malik and Ors. vs. Supertech Limited and Ors. (supra), this Court upheld the order of the National Commission that dismissed an application under Section 12(1)(c) of the 1986 Act, on the ground that the reliefs prayed for in the consumer complaint, were confined only to 26 complainants and that even the pleadings as framed and drawn up, highlighted only the specific grievances of those 26 complainants. 29. All the above decisions show that for allowing an application under Section 12(1)(c) of the 1986 Act or Section 35(1)(c) of the 2019 Act, the pleadings and the reliefs are to be considered. If so considered, the National Commission could not have granted permission to the respondents in this case, to file the complaint in a representative capacity for and on behalf of the owners of all the 1134 flats. 30. That takes us to the next question as to the fate of the complaint filed by the respondents. It is sought to be contended that once the application under Section 35(1)(c) is held liable to be rejected, the complaint should also go, as more than one consumer cannot institute a complaint unless they come within the definition of the word “complainant” and also satisfy the requirements of Section 38(11) read with Order I Rule 8 CPC. 31. It is true that the definition of the word “complainant” is little misleading. Section 2(5) of the Consumer Protection Act, 2019 reads (ii) any voluntary consumer association registered under any law (iii) the Central Government or any State Government; or (v) one or more consumers, where there are numerous consumers (vi) in case of death of a consumer, his legal heir or legal represen­ (vii) in case of a consumer being a minor, his parent or legal “38. Procedure on admission of complaint. (11) Where the complainant is a consumer referred to in sub­clause (v) of clause (5) of section 2, the provisions of Order I Rule 8 of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908) shall apply subject to the modification that every reference therein to a suit or decree shall be construed as a reference to a complaint or the order of the District Commission thereon.” “35. Manner in which complaint shall be made.­ (1) A complaint, in relation to any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided, may be filed with a District Commission by— (i) to whom such goods are sold or delivered or agreed to be sold or delivered or such service is provided or (ii) who alleges unfair trade practice in respect of such (b) any recognised consumer association, whether the con­ sumer to whom such goods are sold or delivered or agreed to be sold or delivered or such service is pro­ vided or agreed to be provided, or who alleges unfair trade practice in respect of such goods or service, is a (c) one or more consumers, where there are numerous con­ sumers having the same interest, with the permission of the District Commission, on behalf of, or for the benefit (d) the Central Government, the Central Authority or the Provided that the complaint under this sub­section may be filed electronically in such manner as may be prescribed. 34. A careful reading of the above provisions would show that there is no scope for the contention that wherever there are more consumers than one, they must only take recourse to Order I Rule 8 CPC, even if the complaint is not on behalf of or for the benefit of, all the consumers interested in the matter. There may be cases where only “a few consumers” and not “numerous consumers” have the same interest. There is nothing in the Act to prohibit these few consumers from joining together and filing a joint complaint. A joint complaint stands in contrast to a complaint filed in a representative capacity. For attracting the provisions of Section 35(1)(c), the complaint filed by one or more consumers should be on behalf of or for the benefit of numerous consumers having same interest. It does not mean that where there are only very few consumers having the same interest, they cannot even join together and file a single complaint, but should take recourse only to independent and separate complaints. 35. It is true that Section 2(5)(i) uses the expression “a consumer”. If the vowel “a” and the word “consumer” appearing in Section 2(5)(i) are to be understood to exclude more than one person, it will result in a disastrous consequence while reading Section 2(5)(vi). Section 2(5)(vi) states that in the case of death of a consumer, “his legal heir or legal representative” will be a complainant. Unless the words “legal heir” and “legal representative” are understood to mean ‘legal heirs’ and ‘legal representatives’, a meaningful reading of the provision may not be there. 36. Under Section 13(2) of the General Clauses Act, 1897, words in the singular shall include the plural and vice versa in all Central Acts and Regulations, unless there is anything repugnant in the subject or context. We cannot read anything repugnant in the subject or context of Section 2(5) or 35(1)(c) or 38(11) of the Consumer Protection Act, 2019 to hold that the word in the singular, namely, “consumer” will not include the plural. 37. We may take for example a case where a residential apartment is purchased by the husband and wife jointly or by a parent and child jointly. If they have a grievance against the builder, both of them are entitled to file a complaint jointly. Such a complaint will not fall under Section 35(1)(c) but fall under Section 35(1)(a). Persons filing such a complaint cannot be excluded from Section 2(5)(i) on the ground that it is not by a single consumer. It cannot also be treated as one by persons falling under Section 2(5)(v) attracting the application of Order I Rule 8 CPC read with Section 38. Therefore, the proper way of interpreting Section 35(1) read with section 2(5), would be to say that a complaint may be filed: (i) by a single consumer; (ii) by a recognised consumer Association; (iii) by one or more consumers jointly, seeking the redressal of their own grievances without representing other consumers who may or may not have the same interest; (iv) by one or more consumers on behalf of or for the benefit of numerous consumers; and (v) the Central Government, Central Authority or State Authority. 39. It must be remembered that the provisions of the Consumer Protection Act are in addition to and not in derogation of the provisions of any other law for the time being in force, by virtue of Section 100. Even Section 38 which prescribes the procedure to be followed by the Commission for enquiring into the complaint, does not expressly exclude the application of the provisions of CPC. Though Sub­sections (9), (11) and (12) of Section 38 make specific reference only to a few provisions of the Code of Civil Procedure, the principle behind Order I Rule 1 enabling more than one person to join in a suit as plaintiff is not expressly excluded. 40. Therefore, we are of the considered view that while the National Commission was wrong in this case, in the peculiar facts and circumstances in permitting an application under Section 35(1)(c) read with Order I Rule 8 CPC, it does not mean that the complaint filed by the respondents itself is liable to be thrown out. The complaint filed by the respondents may have to be treated as a joint complaint and not a complaint in a representative capacity on behalf of 1134 purchasers. The purchasers of other flats, such as the intervenors herein may join as parties to the consumer complaint, if they so desire. As a matter of fact, it is stated by the intervenors that pursuant to the impugned order, advertisements were issued and the intervenors have already filed impleadment application before the National Commission. They are entitled to be 41. In view of the above, the appeal is allowed, the impugned order of the National Commission is modified to the effect that the complaint filed by the respondents shall be treated as a joint complaint filed on behalf of only the respondents herein and not as a complaint filed in a representative capacity on behalf of or for the benefit of all the owners of all the 1134 flats. Persons who wish to implead themselves as parties to the complaint filed by the respondents, may be allowed by the National Commission to do so, provided their grievance is also limited to the grievance as projected by the respondents in their consumer complaint. The intervenors herein, in view of what is stated in their application, shall also be allowed to be impleaded in the consumer complaint. The intervention application is closed with the above direction. There shall be no order as to costs.
The Supreme Court has decided that if several customers have a similar problem, they don't always have to file a special type of complaint called a "representative capacity" complaint under Section 35(1)(c) of the Consumer Protection Act of 2019. Instead, these few customers can simply team up and file one complaint together. The Court noted that the Consumer Protection Act of 2019 does not stop a small group of customers from joining forces to file a single complaint. The Court explained how a "joint complaint" is different from a complaint filed in a "representative capacity." The Court said that looking closely at the law shows there's no rule forcing multiple customers to use a specific legal procedure (like Order I Rule 8 CPC) just because there are many of them, especially if their complaint isn't meant to help *all* customers who might be affected. Sometimes, only a small number of customers, not a huge crowd, have the same problem. The law doesn't stop these few customers from filing a joint complaint. A joint complaint is different from a "representative capacity" complaint. For a "representative capacity" complaint under Section 35(1)(c), one or more customers must file it for the good of *many* customers who share the same issue. This doesn't mean that if only a few customers have the same problem, they can't team up and file one complaint. They don't have to file separate complaints. The Court also pointed out that even though Section 2(5)(i) of the Act (which explains what a "complainant" is) uses the singular term "a consumer," this term should be understood to include multiple consumers. The Court explained that according to Section 13(2) of the General Clauses Act of 1897, a singular word usually also means its plural form in all Central Acts and rules, unless it clearly makes no sense in that situation. The Court found nothing in the Consumer Protection Act of 2019 (specifically Sections 2(5), 35(1)(c), or 38(11)) that would prevent the word "consumer" (singular) from also including "consumers" (plural). To make its point clearer, the Court gave the following example: "Imagine a situation where a husband and wife, or a parent and child, buy an apartment together. If they have a problem with the builder, both of them have the right to file a complaint as a team. This kind of complaint wouldn't be handled under Section 35(1)(c) (representative capacity) but rather under Section 35(1)(a) (a standard complaint). People filing such a complaint can't be stopped just because it's not filed by a single consumer. It also shouldn't be treated as a complaint that would automatically require using a specific legal procedure (Order I Rule 8 CPC), which applies to certain group complaints." When can a consumer complaint in representative capacity can be filed The court explained that to file a "representative capacity" consumer complaint under Section 35(1)(c) of the Consumer Protection Act of 2019, the complaint must be filed by one or more customers on behalf of, or for the good of, many other customers who all have the same problem. The judges, Justices Hemant Gupta and V Ramasubramanian, were reviewing an appeal against a decision made by the National Consumer Disputes Redressal Commission (NCDRC). This NCDRC decision, which was being challenged, had been made under Section 35(1)(c) of the Act. In the decision that was being challenged, the NCDRC had allowed 91 people who bought 51 apartments in a housing complex to file a consumer complaint in a "representative capacity." This meant they were acting on behalf of, and for the benefit of, over 1000 other buyers. The builder then filed this appeal against that decision. When the Supreme Court allowed the appeal (meaning they sided with the builder), the judges in the case of Brigade Enterprises Limited V. Anil Kumar Virmani & Ors stated that "having the same interest" was a main requirement for filing a complaint using Order I Rule 8 CPC alongside Section 35(1)(c) of the Consumer Protection Act of 2019. Because of this, the people who filed the complaint (the respondents) needed to include enough clear statements in their complaint to show that all the consumers truly had the "same interest." The judges also pointed out that delays in giving buyers their apartments might give each individual buyer a reason to sue the builder. However, having the "same reason to sue" is not the same as having a "sameness of interest" for a group complaint. Factual Background Roughly 91 people who bought 51 apartments in a large housing complex of about 1134 apartments (built by Brigade Enterprises Limited, the company appealing the case) joined together and filed a consumer complaint with the National Consumer Disputes Redressal Commission in New Delhi. This consumer complaint also included a request under Section 35(1)(c). They asked the National Commission for permission to handle the case together, not just for the 91 people who applied, but also for many other customers who had bought apartments in the same complex. Even though the builder opposed this request under Section 35(1)(c), the National Commission still allowed it. They based their decision on earlier rulings from the Supreme Court and the National Commission itself. Unhappy with this decision, the builder took their case to the Supreme Court. Submission of Counsels The builder's lawyer, Senior Advocate Jayant Bhushan, argued that only owners of 51 out of 1134 apartments had joined together. He said such a tiny number of customers couldn't file a complaint on behalf of everyone else (in a "representative capacity"). He also argued that there was no shared interest or problem, especially since some individual apartment owners had already filed their own separate complaints with a different consumer commission in Karnataka. Senior Advocate Ajit Kumar Sinha, representing the apartment buyers, argued that this issue was already settled because of previous Supreme Court decisions. He also claimed that the buyers shared the "same interest" with all the other 1134 apartment buyers, which is a necessary condition for filing a complaint under Section 35(1)(c). Therefore, he believed the National Commission was correct to allow their request. Lawyer Omanakuttan KK represented other people who had joined the case because they also had an interest in its outcome. Supreme Court's Analysis The judgment, written by Justice V Ramasubramanian, explained that Section 35(1)(c) of the Act allows one or more customers to file a complaint for the benefit of many other customers who have the same problem, provided they get permission from the District Commission. The Court further noted that the essential condition for using Section 35(1)(c) is that all the customers who are being represented must indeed share the same interest. The judges pointed out that Section 38(11) of the Act states that certain rules from the Code of Civil Procedure of 1908 (specifically Order I Rule 8) apply to cases where a customer is filing a complaint. They then said: "Order I Rule 8, CPC, is different from Section 35(1)(c) because it works in two directions. It doesn't just allow people to file lawsuits on behalf of a group (acting in a representative capacity), but it also allows people to be The judges focused on a legal rule called Order I Rule 8. They explained that this rule shows a difference between people who have a similar concern in a lawsuit and those who were harmed in the exact same way. The judges also noted that to show people have the same interest, they don't necessarily need to have been harmed in the same exact way. The judges looked at the legal definition of a "complainant" (the person who files a complaint) in Section 2(5) of the law. They explained that when you combine this with Section 35(1), it means a complaint can be filed in these ways: (i) by one customer alone; (ii) by an official customer group; (iii) by several customers together, trying to fix their own issues without acting for other customers who might or might not have similar issues; (iv) by one or more customers who are acting for or helping many other customers; and (v) by the national or state government or its agencies. The judges approved the appeal, meaning they agreed to re-examine the case. They changed the decision made by the NCDRC (a consumer court) to say that the complaint filed by the people who originally sued could only be considered a complaint for those specific individuals. It could not be seen as a complaint filed on behalf of all 1134 apartment owners.
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01. The present case highlights the manner in which the practice of Forced Labour is prevalent in the country even after 75 years of independence and the helpless people similar to the petitioner continue to suffer the exploitation 02. Part III of the Constitution of India provides for the freedoms of which are guaranteed to every citizen of this country. The present case is specifically concerned with Article 14, Articles 21 and 23 of the Constitution of India, more particularly, Article 23. In the context of the facts of the present case, what is to be considered is that whether the payment of wages @ Rs. 500/- per year is another form of Forced Labour as barred by virtue of Article 23 of the Constitution of India or not. 03. The question of “other forms of Forced Labour” as finds place in Article 23 of the Constitution of India came up for consideration before the Hon’ble Supreme Court for the first time in the case of “People’s Union for Democratic Rights and Others v. Union of India and Others”; (1982) 3 SCC 235, wherein in the form of Public Interest Litigation, the plight of the workers engaged in the construction for the Asian Games, was highlighted before the Supreme Court. The contention before the Supreme Court was that the workers employed for constructions were being paid wages which were less than the minimum wages prescribed. The Supreme Court specifically considered the scope of Article 23 and recorded as under:- “12. Article 23 enacts a very important fundamental right in the “23. Prohibition of traffic in human beings and forced labour.- -(1) Traffic in human beings and beggar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law. (2) Nothing in this article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them." 04. Now many of the fundamental rights enacted in Part III operate as limitations on the power of the State and impose negative obligations on the State not to encroach on individual liberty and they are enforceable only against the State. But there are certain fundamental rights conferred by the Constitution which are enforceable against the whole world and they are to be found inter alia in Articles 17, 23 and 24. The sweep of Article 23 is wide and unlimited and it strikes at “traffic in human beings and beggar and other similar forms of forced labour” wherever they are found. 05. The reason for enacting this provision in the Chapter on Fundamental Rights is to be found in the socio-economic condition of the people at the time when the Constitution came to be enacted. The Constitution-makers, when they set out to frame the Constitution, found that they had the enormous task before them of changing the socio-economic structure of the country and bringing about socio-economic regeneration with a view to reaching social and economic justice to the common man. Large masses of people, bled white by well-nigh two centuries of foreign rule, were living in abject poverty and destitution, with ignorance and illiteracy accentuating their helplessness and despair. 06. The society had degenerated into a status-oriented hierarchical society with little respect for the dignity of the individual who was in the lower rungs of the social ladder or in an economically impoverished condition. The political revolution was completed and it had succeeded in bringing freedom to the country but freedom was not an end in itself, it was only a means to an end, the end being the raising of the people to higher levels of achievement and bringing about their total advancement and welfare. 07. Political freedom had no meaning unless it was accompanied by social and economic freedom and it was therefore necessary to carry forward the social and economic revolution with a view to creating socio-economic conditions in which everyone would be able to enjoy basic human rights and participate in the fruits of freedom and liberty in an egalitarian social and economic framework. It was with this end in view that the Constitution-makers enacted the directive principles of state policy in Part IV of the Constitution setting out the constitutional goal of a new socio-economic order. 08. Thereafter, the Supreme Court proceeded to consider as to whether a person is said to be providing Forced Labour if he is paid less than the minimum wages for it and recorded as under:- "14.Now the next question that arises for consideration is whether there is any breach of Article 23 when a person provides labour or service to the State or to any other person and is paid less than the minimum wage for it. It is obvious that ordinarily no one would willingly supply labour or service to another for less than the minimum wage, when he knows that under the law he is entitled to get minimum wage for the labour or service provided by him. It may therefore be legitimately presumed that when a person provides labour or service to another against receipt of remuneration which is less than the minimum wage, he is acting under the force of some compulsion which drives him to work though he is paid less than what he is entitled under law to receive. What Article 23 prohibits is "forced labour" that is labour or service which a person is forced to provide and "force" which would make such labour or service "forced labour" may arise in several ways. It may be physical force which may compel a person to provide labour or service to another or it may be force exerted through a legal provision such as a provision for imprisonment or fine in case the employee fails to provide labour or service or it may even be compulsion arising from hunger and poverty, want and destitution. Any factor which deprives a person of a choice of alternatives and compels him to adopt one particular course of action may properly be regarded as "force" and if labour or service is compelled as a result of such "force", it would be "forced labour". Where a person is suffering from hunger or starvation, when he has no resources at all to fight disease or to feed his wife and children or even to hide their nakedness, where utter grinding poverty has broken his back and reduced him to a state of helplessness and despair and where no other employment is available to alleviate the rigour of his poverty, he would have no choice but to accept any work that comes his way, even if the remuneration offered to him is less than the minimum wage. He would be in no position to bargain with the employer; he would have to accept what is offered to him. And in doing so he would be acting not as a free agent with a choice between alternatives but under the compulsion of economic circumstances and the labour or service provided by him would be clearly "forced labour". There is no reason why the word "forced" should be read in a narrow and restricted manner so as to be confined only to physical or legal "force" particularly when the national charter, its fundamental document has promised to build a new socialist republic where there will be socio-economic justice for all and everyone shall have the right to work, to education and to adequate means of livelihood. The Constitution-makers have given us one of the most remarkable documents in history for ushering in a new socio-economic order and the Constitution which they have forged for us has a social purpose and an economic mission and therefore every word or phrase in the Constitution must be interpreted in a manner which would advance the socio-economic objective of the Constitution. It is not unoften that in a capitalist society economic circumstances exert much greater pressure on an individual in driving him to a particular course of action than physical compulsion or force of legislative provision. The word "force" must therefore be construed to include not only physical or legal force but also force arising from the compulsion of economic circumstances which leaves no choice of alternatives to a person in want and compels him to provide labour or service even though the remuneration received for it is less than the minimum wage. Of course, if a person provides labour or service to another against receipt of the minimum wage, it would not be possible to say that the labour or service provided by him is "forced labour" because he gets what he is entitled under law to receive. No inference can reasonably be drawn in such a case that he is forced to provide labour or service for the simple reason that he would be providing labour or service against receipt of what is lawfully payable to him just like any other person who is not under the force of any compulsion. We are therefore of the view that where a person provides labour or service to another for remuneration which is less than the minimum wage, the labour or service provided by him clearly falls within the scope and ambit of the words "forced labour" under Article 23. Such a person would be entitled to come to the court for enforcement of his fundamental right under Article 23 by asking the court to direct payment of the minimum wage to him so that the labour or service provided by him ceases to be "forced labour" and the breach of Article 23 is remedied. It is therefore clear that when the petitioners alleged that minimum wage was not paid to the workmen employed by the contractors, the complaint was really in effect and substance a complaint against violation of the fundamental right of the workmen under Article 23." 09. Thereafter, the Supreme Court considered the obligations of the State in the event of a complaint being made against violation of fundamental rights enacted under Article 17 or Article 23 or Article 24 and recorded as under:- "15. Before leaving this subject, we may point out with all the emphasis at our command that whenever any fundamental right which is enforceable against private individuals such as, for example, a fundamental right enacted in Article 17 or 23 or 24 is being violated, it is the constitutional obligation of the State to take the necessary steps for the purpose of interdicting such violation and ensuring observance of the fundamental right by the private individual who is transgressing the same. Of course, the person whose fundamental right is violated can always approach the court for the purpose of enforcement of his fundamental right, but that cannot absolve the State from its constitutional obligation to see that there is no violation of the fundamental right of such person, particularly when he belongs to the weaker section of humanity and is unable to wage a legal battle against a strong and powerful opponent who is exploiting him.” 10. Thus, following the said judgment of the Supreme Court, I am of the firm view that the payment of wages at the rate of Rs. 500/- per year since the year 1998 till today to the petitioner was clearly a form of Forced Labour, which is prohibited under Article 23 of the Constitution of India. The petitioner was never in a position to bargain with the might of the State and continued to suffer the violation of a rights for a period of 14 years. 11. This Court being a custodian of the fundamental rights cannot shut its eyes to the injustice carried out against the petitioner by an act of the State, which claims to achieve socio economic equality as the cherished dreams of the 12. So far as the nature of the right to livelihood and payment of wages is concerned, reference can usefully be made to the pronouncement of the Supreme Court in AIR 1986 SC 180, “Olga Tellis v. Bombay Municipal Corporation”. In paragraph 32 of the aforesaid judgment, the Supreme Court was called upon to answer the question as to whether the right to life guaranteed under Article 21 of the Constitution of India includes the right to livelihood. In this behalf, in paragraph 32 of the judgment, the Supreme Court held as follows: "32. We see only one answer to that question, namely, that it does. The sweep of the right to life conferred by Article 21 is wide and far reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life. Indeed, that explains the massive migration of the rural population to big cities. They migrate because they have no means of livelihood in the villages. The motive force which propels their desertion of their hearths and homes in the villages that struggle for survival, that is, the struggle for life. So unimpeachable is the evidence of the nexus between life and the means of livelihood. They have to eat to live : Only a handful can afford the luxury of living to eat. That they can do, namely, eat, only if they have the means of livelihood. That is the context in which it was said by Douglas J. in Baksey, (1954) 347 M.D. 442 that the right to work is the most precious liberty that man possesses. It is the most precious liberty because, it sustains and enables a man to live and the right to life is a precious freedom. "Life", as observed by Field, J. in Munn v. Illinois (1877) 94 U.S. 113, means something more than mere animal existence and the inhibition against the deprivation of life extends to all those limits and faculties by which life is enjoyed.” 13. It needs no elaboration that the fundamental right conferred by Article 23 is also enforceable against not only the State, but also against the whole world. This article is designed to protect the individual against any form of forced labour practiced by any person and has its genesis in the socio-economic conditions of the people at the time the constitution came to be enacted, with a view to ensure socio and economic justice to the large masses of people living in abject poverty, destitution and slavery. The economic deprivation itself places them at the bottom of the hierarchy of those marginalized reducing them to the position of those having no kind of bargaining power or choice. The rights recognized and conferred under Article 23 are aimed at preventing exploitation of such marginalized persons with a view to imbibing charitarian values into society and ensuring human dignity and basic human rights of the people. 14. This Court vide order dated 20.04.2022 directed respondent No. 2- Director School Education, Jammu to release immediately the minimum wages in terms of Minimum Wages Act in favour of the petitioner forthwith, but till date the aforesaid order has not been complied with. 15. While passing the aforesaid order, this Court observed that it is shocking that the petitioner is working as Class-IV since 28.10.1998 as Waterman-cum- Sweeper in the Government Model Middle School, Mahanpur, on a meager amount of Rs. 500/- per year which is insufficient to cater the daily needs of the 16. It is not so, even this Court vide order dated 02.09.2013, i.e. on the very first day of hearing, has directed the respondents to consider payment of wages as envisaged under Minimum Wages Act to the petitioner and the respondents, inspite of the aforesaid direction passed way back in 2013, have not implemented the same and this was precisely the reason that this Court vide order dated 20.04.2022 reiterated that the petitioner is entitled for the minimum wages in terms of Minimum Wages Act and, accordingly, a positive direction was issued to the Director School Education, Jammu to release immediately the minimum wages in terms of the Minimum Wages Act in favour of the petitioner. 17. The direction passed by this Court vide order dated 20.04.2022 was flouted with impunity and, accordingly, this Court vide order dated 25.05.2022 directed respondent No. 2–Director School Education, Jammu to remain present before this Court on the date fixed to explain as to why the direction issued by this Court has not complied with and the order was communicated to the Director School Education, Jammu for compliance. 18. The direction which was passed by this Court on 20.04.2022 which is being flouted with impunity by respondent No. 2 and till date, the order to pay minimum wages to the petitioner has not been complied with, which tantamounts that the respondent No. 2 is in recurring contempt. 19. The order passed by this Court dated 20.04.2022 has assumed finality as according to the petitioner, the respondents have not assailed the same before any higher forum and the respondents have no other option but to implement the same in its letter and spirit. 20. This is a sheer case of exploitation of a poor person by the respondents, where the respondents are extracting the work from the petitioner since 1998 as on date and the petitioner is being paid Rs. 500/- per year which is insufficient to cater the daily needs of the petitioner and it shocks the conscience of the Court that a person even after 75 years of independence continues to suffer exploitation. The petitioner continues to be exploited by paying him a meager amount of Rs. 500/- as he is continuing uninterruptedly since 1998, the respondents were under a legal obligation to regularize his services or at least he should have been paid minimum of the wages as per direction of this Court. 21. Inspite of the categoric direction issued by this Court on 20.04.2022 read with 25.05.2022, respondent No. 2 has neither complied with the aforesaid direction nor has appeared in person, which means that he is taking the Court orders casually and instead he has filed an application for seeking exemption which is declined keeping in view his conduct. 22. This is a fit case where rule can be framed against the respondent No. 2 as he is in recurring contempt and has flouted the orders passed by this Court with impunity and failed to appear before this Court in spite of categoric direction and his act, as such, is contemptuous. The stand taken by respondents while filing reply has been rejected by this Court vide order dated 20.04.2022 and respondents have no other option but to implement the same in its letters and 23. Before proceeding further in the matter, he is given final opportunity to comply the order passed by this Court on 20.04.2022 in its letter and spirit and file compliance report by or before the next date of hearing by paying him minimum of the wages besides explaining his conduct for not complying Court order dated 20.04.2022 and non-appearance. 24. Let respondent No. 2 shall appear in person along with the record of the list of contingent paid workers/local fund paid workers approved for regularization in terms of SRO-308 of 2008 of Jammu Division from 1998 till date as directed by this Court vide order dated 20.04.2022. 25. List for continuation on 26.09.2022. 26. Registry to forward this order to Director School Education, Jammu for his compliance.
The High Court of Jammu and Kashmir and Ladakh has ruled that paying a government school worker only 500 rupees a year since 1998 is a clear example of "Forced Labor." This practice is strictly against Article 23 of India's main law, the Constitution, which bans forced labor. One judge, in an order issued on September 19, stated that the court must protect basic rights. He said the court cannot ignore the unfair treatment of the worker by the government, which claims it wants to create social and economic fairness as outlined in the Constitution. The judge, Justice Wasim Sadiq Nargal, was handling a case where the worker asked the court to take action against government officials. These officials included the Director of School Education in Jammu. The worker wanted them punished for not following a September 2013 order. That order told the officials to consider paying the worker what he deserved under the Minimum Wages Act, a law that sets the lowest pay for workers. On April 20, the court had again ordered the Director of School Education to immediately pay the worker the minimum wages required by law. However, this order was also not followed. The worker has been employed as a Waterman-cum-Sweeper at the Government Model Middle School, Mahanpur, since October 28, 1998. The court called this a clear case of exploiting a poor person. It said that government officials have been making the worker do his job since 1998 and are still only paying him 500 rupees per year. This amount is not enough for his daily needs. The court found it shocking that someone continues to suffer such unfair treatment, even 72 years after India became independent. The court explained that because the officials continue to unfairly treat the worker, they had a legal duty to either make his job permanent or pay him the minimum wages. It also noted that the Director of School Education in Jammu had neither followed the court's instruction nor shown up in court in person, despite being told to do so. The judge said this means the Director is not taking the court's order seriously. The Director had also asked to be excused from appearing, but the court denied this request because of his actions. The court added that this was a suitable situation to start legal action against the officer, as he was repeatedly ignoring court orders. The court gave the officer one last chance to fully follow its order and asked for a report by September 26, proving he had done so. The court further ordered that "Respondent No. 2" (one of the officials) must appear in court in person with a list of temporary and local fund workers approved for permanent jobs in Jammu Division from 1998 until now, as instructed by an earlier order from April 20, 2022. The judge also pointed out that this case shows how common forced labor still is in the country, even after 72 years of independence. It highlights that helpless people, like this worker, continue to suffer from unfair treatment, often feeling they have no other choice. Referring to Article 23 of the Constitution, the court stated: This article was created to protect individuals from any form of forced labor. It began because of the poor social and economic conditions of people when the Constitution was written. Its goal was to ensure fairness in society and the economy for the many people living in extreme poverty, hardship, and a state of slavery.
01. The present case highlights the manner in which the practice of Forced Labour is prevalent in the country even after 75 years of independence and the helpless people similar to the petitioner continue to suffer the exploitation 02. Part III of the Constitution of India provides for the freedoms of which are guaranteed to every citizen of this country. The present case is specifically concerned with Article 14, Articles 21 and 23 of the Constitution of India, more particularly, Article 23. In the context of the facts of the present case, what is to be considered is that whether the payment of wages @ Rs. 500/- per year is another form of Forced Labour as barred by virtue of Article 23 of the Constitution of India or not. 03. The question of “other forms of Forced Labour” as finds place in Article 23 of the Constitution of India came up for consideration before the Hon’ble Supreme Court for the first time in the case of “People’s Union for Democratic Rights and Others v. Union of India and Others”; (1982) 3 SCC 235, wherein in the form of Public Interest Litigation, the plight of the workers engaged in the construction for the Asian Games, was highlighted before the Supreme Court. The contention before the Supreme Court was that the workers employed for constructions were being paid wages which were less than the minimum wages prescribed. The Supreme Court specifically considered the scope of Article 23 and recorded as under:- “12. Article 23 enacts a very important fundamental right in the “23. Prohibition of traffic in human beings and forced labour.- -(1) Traffic in human beings and beggar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law. (2) Nothing in this article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them." 04. Now many of the fundamental rights enacted in Part III operate as limitations on the power of the State and impose negative obligations on the State not to encroach on individual liberty and they are enforceable only against the State. But there are certain fundamental rights conferred by the Constitution which are enforceable against the whole world and they are to be found inter alia in Articles 17, 23 and 24. The sweep of Article 23 is wide and unlimited and it strikes at “traffic in human beings and beggar and other similar forms of forced labour” wherever they are found. 05. The reason for enacting this provision in the Chapter on Fundamental Rights is to be found in the socio-economic condition of the people at the time when the Constitution came to be enacted. The Constitution-makers, when they set out to frame the Constitution, found that they had the enormous task before them of changing the socio-economic structure of the country and bringing about socio-economic regeneration with a view to reaching social and economic justice to the common man. Large masses of people, bled white by well-nigh two centuries of foreign rule, were living in abject poverty and destitution, with ignorance and illiteracy accentuating their helplessness and despair. 06. The society had degenerated into a status-oriented hierarchical society with little respect for the dignity of the individual who was in the lower rungs of the social ladder or in an economically impoverished condition. The political revolution was completed and it had succeeded in bringing freedom to the country but freedom was not an end in itself, it was only a means to an end, the end being the raising of the people to higher levels of achievement and bringing about their total advancement and welfare. 07. Political freedom had no meaning unless it was accompanied by social and economic freedom and it was therefore necessary to carry forward the social and economic revolution with a view to creating socio-economic conditions in which everyone would be able to enjoy basic human rights and participate in the fruits of freedom and liberty in an egalitarian social and economic framework. It was with this end in view that the Constitution-makers enacted the directive principles of state policy in Part IV of the Constitution setting out the constitutional goal of a new socio-economic order. 08. Thereafter, the Supreme Court proceeded to consider as to whether a person is said to be providing Forced Labour if he is paid less than the minimum wages for it and recorded as under:- "14.Now the next question that arises for consideration is whether there is any breach of Article 23 when a person provides labour or service to the State or to any other person and is paid less than the minimum wage for it. It is obvious that ordinarily no one would willingly supply labour or service to another for less than the minimum wage, when he knows that under the law he is entitled to get minimum wage for the labour or service provided by him. It may therefore be legitimately presumed that when a person provides labour or service to another against receipt of remuneration which is less than the minimum wage, he is acting under the force of some compulsion which drives him to work though he is paid less than what he is entitled under law to receive. What Article 23 prohibits is "forced labour" that is labour or service which a person is forced to provide and "force" which would make such labour or service "forced labour" may arise in several ways. It may be physical force which may compel a person to provide labour or service to another or it may be force exerted through a legal provision such as a provision for imprisonment or fine in case the employee fails to provide labour or service or it may even be compulsion arising from hunger and poverty, want and destitution. Any factor which deprives a person of a choice of alternatives and compels him to adopt one particular course of action may properly be regarded as "force" and if labour or service is compelled as a result of such "force", it would be "forced labour". Where a person is suffering from hunger or starvation, when he has no resources at all to fight disease or to feed his wife and children or even to hide their nakedness, where utter grinding poverty has broken his back and reduced him to a state of helplessness and despair and where no other employment is available to alleviate the rigour of his poverty, he would have no choice but to accept any work that comes his way, even if the remuneration offered to him is less than the minimum wage. He would be in no position to bargain with the employer; he would have to accept what is offered to him. And in doing so he would be acting not as a free agent with a choice between alternatives but under the compulsion of economic circumstances and the labour or service provided by him would be clearly "forced labour". There is no reason why the word "forced" should be read in a narrow and restricted manner so as to be confined only to physical or legal "force" particularly when the national charter, its fundamental document has promised to build a new socialist republic where there will be socio-economic justice for all and everyone shall have the right to work, to education and to adequate means of livelihood. The Constitution-makers have given us one of the most remarkable documents in history for ushering in a new socio-economic order and the Constitution which they have forged for us has a social purpose and an economic mission and therefore every word or phrase in the Constitution must be interpreted in a manner which would advance the socio-economic objective of the Constitution. It is not unoften that in a capitalist society economic circumstances exert much greater pressure on an individual in driving him to a particular course of action than physical compulsion or force of legislative provision. The word "force" must therefore be construed to include not only physical or legal force but also force arising from the compulsion of economic circumstances which leaves no choice of alternatives to a person in want and compels him to provide labour or service even though the remuneration received for it is less than the minimum wage. Of course, if a person provides labour or service to another against receipt of the minimum wage, it would not be possible to say that the labour or service provided by him is "forced labour" because he gets what he is entitled under law to receive. No inference can reasonably be drawn in such a case that he is forced to provide labour or service for the simple reason that he would be providing labour or service against receipt of what is lawfully payable to him just like any other person who is not under the force of any compulsion. We are therefore of the view that where a person provides labour or service to another for remuneration which is less than the minimum wage, the labour or service provided by him clearly falls within the scope and ambit of the words "forced labour" under Article 23. Such a person would be entitled to come to the court for enforcement of his fundamental right under Article 23 by asking the court to direct payment of the minimum wage to him so that the labour or service provided by him ceases to be "forced labour" and the breach of Article 23 is remedied. It is therefore clear that when the petitioners alleged that minimum wage was not paid to the workmen employed by the contractors, the complaint was really in effect and substance a complaint against violation of the fundamental right of the workmen under Article 23." 09. Thereafter, the Supreme Court considered the obligations of the State in the event of a complaint being made against violation of fundamental rights enacted under Article 17 or Article 23 or Article 24 and recorded as under:- "15. Before leaving this subject, we may point out with all the emphasis at our command that whenever any fundamental right which is enforceable against private individuals such as, for example, a fundamental right enacted in Article 17 or 23 or 24 is being violated, it is the constitutional obligation of the State to take the necessary steps for the purpose of interdicting such violation and ensuring observance of the fundamental right by the private individual who is transgressing the same. Of course, the person whose fundamental right is violated can always approach the court for the purpose of enforcement of his fundamental right, but that cannot absolve the State from its constitutional obligation to see that there is no violation of the fundamental right of such person, particularly when he belongs to the weaker section of humanity and is unable to wage a legal battle against a strong and powerful opponent who is exploiting him.” 10. Thus, following the said judgment of the Supreme Court, I am of the firm view that the payment of wages at the rate of Rs. 500/- per year since the year 1998 till today to the petitioner was clearly a form of Forced Labour, which is prohibited under Article 23 of the Constitution of India. The petitioner was never in a position to bargain with the might of the State and continued to suffer the violation of a rights for a period of 14 years. 11. This Court being a custodian of the fundamental rights cannot shut its eyes to the injustice carried out against the petitioner by an act of the State, which claims to achieve socio economic equality as the cherished dreams of the 12. So far as the nature of the right to livelihood and payment of wages is concerned, reference can usefully be made to the pronouncement of the Supreme Court in AIR 1986 SC 180, “Olga Tellis v. Bombay Municipal Corporation”. In paragraph 32 of the aforesaid judgment, the Supreme Court was called upon to answer the question as to whether the right to life guaranteed under Article 21 of the Constitution of India includes the right to livelihood. In this behalf, in paragraph 32 of the judgment, the Supreme Court held as follows: "32. We see only one answer to that question, namely, that it does. The sweep of the right to life conferred by Article 21 is wide and far reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life. Indeed, that explains the massive migration of the rural population to big cities. They migrate because they have no means of livelihood in the villages. The motive force which propels their desertion of their hearths and homes in the villages that struggle for survival, that is, the struggle for life. So unimpeachable is the evidence of the nexus between life and the means of livelihood. They have to eat to live : Only a handful can afford the luxury of living to eat. That they can do, namely, eat, only if they have the means of livelihood. That is the context in which it was said by Douglas J. in Baksey, (1954) 347 M.D. 442 that the right to work is the most precious liberty that man possesses. It is the most precious liberty because, it sustains and enables a man to live and the right to life is a precious freedom. "Life", as observed by Field, J. in Munn v. Illinois (1877) 94 U.S. 113, means something more than mere animal existence and the inhibition against the deprivation of life extends to all those limits and faculties by which life is enjoyed.” 13. It needs no elaboration that the fundamental right conferred by Article 23 is also enforceable against not only the State, but also against the whole world. This article is designed to protect the individual against any form of forced labour practiced by any person and has its genesis in the socio-economic conditions of the people at the time the constitution came to be enacted, with a view to ensure socio and economic justice to the large masses of people living in abject poverty, destitution and slavery. The economic deprivation itself places them at the bottom of the hierarchy of those marginalized reducing them to the position of those having no kind of bargaining power or choice. The rights recognized and conferred under Article 23 are aimed at preventing exploitation of such marginalized persons with a view to imbibing charitarian values into society and ensuring human dignity and basic human rights of the people. 14. This Court vide order dated 20.04.2022 directed respondent No. 2- Director School Education, Jammu to release immediately the minimum wages in terms of Minimum Wages Act in favour of the petitioner forthwith, but till date the aforesaid order has not been complied with. 15. While passing the aforesaid order, this Court observed that it is shocking that the petitioner is working as Class-IV since 28.10.1998 as Waterman-cum- Sweeper in the Government Model Middle School, Mahanpur, on a meager amount of Rs. 500/- per year which is insufficient to cater the daily needs of the 16. It is not so, even this Court vide order dated 02.09.2013, i.e. on the very first day of hearing, has directed the respondents to consider payment of wages as envisaged under Minimum Wages Act to the petitioner and the respondents, inspite of the aforesaid direction passed way back in 2013, have not implemented the same and this was precisely the reason that this Court vide order dated 20.04.2022 reiterated that the petitioner is entitled for the minimum wages in terms of Minimum Wages Act and, accordingly, a positive direction was issued to the Director School Education, Jammu to release immediately the minimum wages in terms of the Minimum Wages Act in favour of the petitioner. 17. The direction passed by this Court vide order dated 20.04.2022 was flouted with impunity and, accordingly, this Court vide order dated 25.05.2022 directed respondent No. 2–Director School Education, Jammu to remain present before this Court on the date fixed to explain as to why the direction issued by this Court has not complied with and the order was communicated to the Director School Education, Jammu for compliance. 18. The direction which was passed by this Court on 20.04.2022 which is being flouted with impunity by respondent No. 2 and till date, the order to pay minimum wages to the petitioner has not been complied with, which tantamounts that the respondent No. 2 is in recurring contempt. 19. The order passed by this Court dated 20.04.2022 has assumed finality as according to the petitioner, the respondents have not assailed the same before any higher forum and the respondents have no other option but to implement the same in its letter and spirit. 20. This is a sheer case of exploitation of a poor person by the respondents, where the respondents are extracting the work from the petitioner since 1998 as on date and the petitioner is being paid Rs. 500/- per year which is insufficient to cater the daily needs of the petitioner and it shocks the conscience of the Court that a person even after 75 years of independence continues to suffer exploitation. The petitioner continues to be exploited by paying him a meager amount of Rs. 500/- as he is continuing uninterruptedly since 1998, the respondents were under a legal obligation to regularize his services or at least he should have been paid minimum of the wages as per direction of this Court. 21. Inspite of the categoric direction issued by this Court on 20.04.2022 read with 25.05.2022, respondent No. 2 has neither complied with the aforesaid direction nor has appeared in person, which means that he is taking the Court orders casually and instead he has filed an application for seeking exemption which is declined keeping in view his conduct. 22. This is a fit case where rule can be framed against the respondent No. 2 as he is in recurring contempt and has flouted the orders passed by this Court with impunity and failed to appear before this Court in spite of categoric direction and his act, as such, is contemptuous. The stand taken by respondents while filing reply has been rejected by this Court vide order dated 20.04.2022 and respondents have no other option but to implement the same in its letters and 23. Before proceeding further in the matter, he is given final opportunity to comply the order passed by this Court on 20.04.2022 in its letter and spirit and file compliance report by or before the next date of hearing by paying him minimum of the wages besides explaining his conduct for not complying Court order dated 20.04.2022 and non-appearance. 24. Let respondent No. 2 shall appear in person along with the record of the list of contingent paid workers/local fund paid workers approved for regularization in terms of SRO-308 of 2008 of Jammu Division from 1998 till date as directed by this Court vide order dated 20.04.2022. 25. List for continuation on 26.09.2022. 26. Registry to forward this order to Director School Education, Jammu for his compliance.
The High Court of Jammu and Kashmir and Ladakh has ruled that paying a government school worker only 500 rupees a year since 1998 is a clear example of "Forced Labor." This practice is strictly against Article 23 of India's main law, the Constitution, which bans forced labor. One judge, in an order issued on September 19, stated that the court must protect basic rights. He said the court cannot ignore the unfair treatment of the worker by the government, which claims it wants to create social and economic fairness as outlined in the Constitution. The judge, Justice Wasim Sadiq Nargal, was handling a case where the worker asked the court to take action against government officials. These officials included the Director of School Education in Jammu. The worker wanted them punished for not following a September 2013 order. That order told the officials to consider paying the worker what he deserved under the Minimum Wages Act, a law that sets the lowest pay for workers. On April 20, the court had again ordered the Director of School Education to immediately pay the worker the minimum wages required by law. However, this order was also not followed. The worker has been employed as a Waterman-cum-Sweeper at the Government Model Middle School, Mahanpur, since October 28, 1998. The court called this a clear case of exploiting a poor person. It said that government officials have been making the worker do his job since 1998 and are still only paying him 500 rupees per year. This amount is not enough for his daily needs. The court found it shocking that someone continues to suffer such unfair treatment, even 72 years after India became independent. The court explained that because the officials continue to unfairly treat the worker, they had a legal duty to either make his job permanent or pay him the minimum wages. It also noted that the Director of School Education in Jammu had neither followed the court's instruction nor shown up in court in person, despite being told to do so. The judge said this means the Director is not taking the court's order seriously. The Director had also asked to be excused from appearing, but the court denied this request because of his actions. The court added that this was a suitable situation to start legal action against the officer, as he was repeatedly ignoring court orders. The court gave the officer one last chance to fully follow its order and asked for a report by September 26, proving he had done so. The court further ordered that "Respondent No. 2" (one of the officials) must appear in court in person with a list of temporary and local fund workers approved for permanent jobs in Jammu Division from 1998 until now, as instructed by an earlier order from April 20, 2022. The judge also pointed out that this case shows how common forced labor still is in the country, even after 72 years of independence. It highlights that helpless people, like this worker, continue to suffer from unfair treatment, often feeling they have no other choice. Referring to Article 23 of the Constitution, the court stated: This article was created to protect individuals from any form of forced labor. It began because of the poor social and economic conditions of people when the Constitution was written. Its goal was to ensure fairness in society and the economy for the many people living in extreme poverty, hardship, and a state of slavery.
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2. The present appeal arises out of a judgment dated 31.03.2021, passed by the High Court for the State of Telangana at Hyderabad, by which a Writ Petition filed by the Petitioner challenging a Preventive Detention Order [hereinafter referred to as “Detention Order”] passed against the Petitioner’s husband [hereinafter referred to as “the Detenu”] under Section 3(2) of the Telangana Prevention of Dangerous Activities of Boot-leggers, Dacoits, Drug-Offenders, Crime Offenders and White Collar or Financial Offenders Act, 1986 [hereinafter referred to as “Telangana Prevention of Dangerous Activities Act”] , was dismissed. 3. The Detention Order under the provisions of the Telangana Prevention of Dangerous Activities Act is dated 28.09.2020. It refers to five FIRs that have been filed against the Detenu, all the said FIRs being under Sections 420, 406 and 506 of the IPC. The facts contained in the FIRs range from October, 2017 to December, 2019 and are similar. We may set out the facts contained in FIR No.705 of 2019 as a sample of similar FIRs filed against the Detenu as follows [This narration of the FIR is to be found in the Detention Order itself]: “On 12.12.2019 at 1200 hours a complaint was received from Sri Kommu Naveen Kumar S/o Veeraswamy, aged about 24 years, Occ: Car Mechanic, R/o H.No. 2-32, Yadaran Village, Shamirpet Mandal stating that he has been running a Garage near main road at Muraharipally village for the past one year. One Banka Ravikanth, aged about 35 years used to come to his garage for two to three times in a month for his car servicing. In the month of March, 2019 the said Ravikanth introduced himself as a High Court advocate and he would invest money in newly upcoming companies and insisted the complainant to invest money for 100% return. He also informed that they are three advocates, of them one is CA (Chartered Accountant) and another is CS (Company Secretary) by name Chandramouli, aged about 65 years. On believing his words, he transferred Rs.50,000/- through Phone-pay to his Indian Bank, Shamirpet branch vide A/c No. 6714073306. Again on 28.05.2019 he transferred Rs. 1,00,000/- through Phone-pay as second investment and on 20.06.2019 he deposited Rs. 1,00,000/- from his Indian Bank, Gachibowli Branch account to his account besides giving net cash of Rs. 2,00,000/- by hand. While sending Rs. 1 lakh through phone pay in presence of one Prasad, Banka Ravikanth assured the complainant that investment he would give him Rs. 41,000/- per month throughout the year and he will take Rs. 3,000/- towards his commission. On 12.12.2019 when the complainant asked him to return his money, he threatened with dire consequences. The complainant stated that the said Ravikanth has cheated him by saying that he would get more return. On the strength of the complainant, police registered a case and investigation into.” Following upon the narration of the 5 FIRs comes this important “Due to above incidents, the complainants, victims and other young aspirants, who want to invest money in stock/share market and derive benefits became scared and feeling insecure. These incidents have also caused loss of faith and trust among investors in stock trading fearing similar cheating towards them by the people like you. They are hesitated to consult any consultancies or persons fearing similar cheating by the unknown persons in the guise of providing good profits. These prejudicial activities have also caused disturbance in the public.” 4. The Detention Order then refers to the ‘Modus Operandi’ of the “You are a native of Karimnagar district. You completed graduation (B.Com) in 2011 and LLB in 2019 and have been doing trading in stock market. You have introduced yourselves to the victims as a High Court Advocate and you have a team consisting of one CA (Chartered Accountant) and CS (Company Secretary) and three advocates. Your CS has an expertise and links in Central and State governments. You have knowledgeable persons in share marketing and used to invest money in upcoming companies which ensure return of 100%. You would lure the innocent public in the guise of providing good profit by investing their money in share marketing. You used to contact your known persons and lure them to invest their money in share market to get good profits assuring the profit 100% within a short period. Further you used to give blank cheques and ask commission from the victims to gain their confidence. As per plan, you collected amount from the victims through Phone-pe which is linked to your bank account and net-banking and in-person. When you received money to your bank account, immediately you had transfer the received amount to your wife's bank account. When the victims contact you over phone, you first start avoiding them and then diverting their calls and finally cheating them. Later, you changed your residential address in order to conceal your where-abouts from the victims. You have cheated so many people to the tune of more than Rs. 50.00 lakhs in the guise of providing good profit through investment in share market. You are involved in Cr.No.34/2020 u/s 406, 420 IPC of Malkajgiri Police Station in the limits of Rachakonda Police Commissionerate which referred by way of your antecedent criminal background the same is not relied upon for your detention.” 5. Thereafter, the Detention Order narrates that anticipatory bail/bail has been granted to the Detenu in all the aforesaid FIRs, the last such relief granted being on 10.08.2020. The Detention Order then narrates: “Having regard to your involvement in series of criminal activities such as cheating in the guise of providing good profit by investing their money in stock market and collected huge amounts to the tune of more than Rs. 50 lakhs from them in an organized way and in view of the bail petitions moved by you and granted in the aforesaid cases and later releasing on conditional bail, I am satisfied that free movement of such an offender like you is not safe in the interest of the society as there is an imminent possibility of you indulging in similar prejudicial activities with another set of innocent youth and cheat them on the pretext of providing good profit by investing their money in stock market, which are detrimental to public order, unless you were prevented from doing so by an appropriate order of detention. Thus you have indulged in the acts of White Collar offences by committing offences such as cheating so many people by collecting more than Rs. 50 lakhs from them through Phone Pay and online banking and sometimes in person in the guise of providing more profit in the limits of Cyberabad Police Commissionerate. Further your acts have been adversely affecting the maintenance of public order and creating feeling of insecurity among young people, thus disturbing peace and tranquillity in the area. It is imperative to prevent you from acting in any manner prejudicial to the maintenance of public order. I feel that recourse to normal law may not be effective deterrent-in preventing you from indulging in such further activities prejudicial to the maintenance of public order in the area, unless you were detained by invoking the provisions under the "Telangana Prevention of Dangerous Activities of Offenders, Arms Offenders, Cyber Crime Offenders and White Collar or Financial Offenders Act, 1986, (Act No. 01 of 6. As a result thereof, the Detenu was preventively detained from the date of the Detention Order itself. A representation dated 31.10.2020 was made by the Petitioner herein to the Commissioner of Police, Cyberabad Commissionerate [Respondent No. 2] which was considered by the Advisory Board, who by its Order 11.11.2020 found that there was sufficient cause to continue the Detention Order. Vide the Order of the State of Telangana dated 17.12.2020, the Detention Order was confirmed and the period of detention was directed to be for a period of one year from 05.10.2020. 7. The impugned judgment, after narrating the facts and the arguments made by counsel on behalf of the Petitioner as well as counsel on “9.In the instant case, a perusal of the material placed on record reveals that the detenu was granted bail by the Courts concerned in all the five cases relied upon by the detaining authority for preventively detaining him. Under these circumstances, the contention of the respondents that the illegal activities of the detenu would disturb the even tempo of life of the community which makes it prejudicial to the maintenance of the public order and there is imminent possibility of the detenu again indulging in similar prejudicial activities, cannot be brushed aside.” The judgment then referred to the decisions of this Court in Madhu Limaye v. Sub-Divisional Magistrate (1970) 3 SCC 746, Commissioner of Police v. C. Sunita (2004) 7 SCC 467 and R.Kalavathi v. State of Tamil Nadu (2006) 6 SCC 14, and then “The modus operandi of the detenu in the alleged offences which were committed in quick succession would certainly disturb the public peace and tranquillity. So it is imperative upon the officers concerned to pass the order of detention, since the acts of the detenu are prejudicial to the maintenance of public order. The illegal activities of the detenu were of such a reach and extent, that they would certainly affect the even tempo of life and were prejudicial to the public order. The detaining authority had sufficient material to record subjective satisfaction that the detention of the detenu was necessary to maintain public order and even tempo of life of the community. The order of detention does not suffer from any illegality. The grounds of detention, as indicated in the impugned order, are found to be relevant and in tune with the provisions of the P.D.Act. Since the detenu got bail in all the five cases relied upon by the detaining authority, there is nothing wrong on the part of the detaining authority in raising an apprehension that there is every possibility of the detenu committing similar offences, which would again certainly affect the public order. The quick succession of commission of alleged offences by the detenu makes it amply clear that there is every possibility of detenu committing similar offences in future, which are prejudicial to the maintenance of public order.” 8. Shri Gaurav Agarwal, learned counsel appearing on behalf of the Petitioner has raised three points before us. First and foremost, he said there is no proximate or live connection between the acts complained of and the date of the Detention Order, as the last act that was complained of, which is discernible from the first 3 FIRs [FIRs dated 12.12.2019, 12.12.2019 and 14.12.2019], was in December 2019 whereas the Detention Order was passed 9 months later on 28.09.2020. He then argued, without conceding, that at best only a ‘law and order’ problem if at all would arise on the facts of these cases and not a ‘public order’ problem, and referred to certain judgments of this court to buttress the same. He also argued that the Detention Order was totally perverse in that it was passed only because anticipatory bail/bail applications were granted. The correct course of action would have been for the State to move to cancel the bail that has been granted if any further untoward incident were to take place. 9. Shri Ranjit Kumar, learned senior counsel appearing on behalf of the State of Telangana, reiterated the grounds contained in the Detention Order and argued that the Detenu was a habitual fraudster who had therefore created fear amongst the gullible public, and since he was likely to commit similar offences in future, it was important to preventively detain him, as the ordinary law had no deterrent effect on him. Further, there is no doubt that he had infringed ‘public order’ as defined by the Telangana Prevention of Dangerous Activities Act and had disturbed the even tempo of life of persons who were cheated by him and were likely to be cheated by him. 10. Having heard learned counsel for both parties, it is first important to set out the important provisions of the Act as follows: In this Act, unless the context otherwise requires, (a) “acting in any manner prejudicial to the maintenance of public order” means when a bootlegger, a dacoit, a drug- offender, a goonda, an immoral traffic offender, Land- Grabber, a Spurious Seed Offender, an Insecticide Offender, a Fertiliser Offender, a Food Adulteration Offender, a Fake Document Offender, a Scheduled Commodities Offender, a Forest Offender, a Gaming Offender, a Sexual Offender, an Explosive Substances Offender, an Arms Offender, a Cyber Crime Offender and a White Collar or Financial Offender is engaged or is making preparations for engaging, in any of his activities as such, which affect adversely, or are likely to affect adversely, the maintenance of public order: Explanation:- For the purpose of this clause public order shall be deemed to have been affected adversely or shall be deemed likely to be affected adversely inter alia, if any of the activities of any of the persons referred to in this clause directly, or indirectly, is causing or calculated to cause any harm, danger or alarm or a feeling of insecurity among the general public or any section thereof or a grave wide-spread (x) “White collar offender” or “Financial Offender” means a person who commits or abets the commission of offences punishable under the Telangana Protection of Depositors of Financial Establishment Act, 1999 (Act 17 of 1999) or under sections 406 to 409 or 417 to 420 or under Chapter XVIII of “Section 3. Power to make orders detaining certain (1) The Government may, if satisfied with respect to any bootlegger, dacoit, drug-offender, goonda, immoral traffic Cyber Crime Offender and White Collar or Financial Offender that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do, make an order directing that such person be detained.” “Section 13. Maximum period of detention The maximum period for which any person may be detained, in pursuance of any detention order made under this Act which has been confirmed under section 12, shall be twelve months from the date of detention.” 11. While it cannot seriously be disputed that the Detenu may be a “white collar offender” as defined under Section 2(x) of the Telangana Prevention of Dangerous Activities Act, yet a Preventive Detention Order can only be passed if his activities adversely affect or are likely to adversely affect the maintenance of public order. Public order is defined in the Explanation to Section 2(a) of the Telangana Prevention of Dangerous Activities Act to be a harm, danger or alarm or a feeling of insecurity among the general public or any section thereof or a grave widespread danger to life or public health. 12. As is well-known, the expressions ‘law and order’, ‘public order’, and ‘security of state’ are different from one another. In Ram Manohar Lohia v. State of Bihar (1966) 1 SCR 709 the question before this Court arose under a Preventive Detention Order made under Rule 30 of the Defence of India Rules, which permits apprehension and detention of a person likely to act in a manner prejudicial to the maintenance of public order. This Court set out the distinction between a mere law and order disturbance and a public order disturbance as “The Defence of India Act and the Rules speak of the conditions under which preventive detention under the Act can be ordered. In its long title and the preamble the Defence of India Act speaks of the necessity to provide for special measures to ensure public safety and interest, the defence of India and civil defence. The expression public safety and interest between them indicate the range of action for maintaining security peace and tranquillity of India whereas the expressions defence of India and civil defence connote defence of India and its people against aggression from outside and action of persons within the country. These generic terms were used because the Act seeks to provide for a congeries of action of which preventive detention is just a small part. In conferring power to make rules, Section 3 of the Defence of India Act enlarges upon the terms of the preamble by specification of details. It speaks of defence of India and civil defence and public safety without change but it expands the idea of public interest into maintenance of public order, the efficient conduct of military operations and maintaining of supplies and services essential to the life of the community. Then it mentions by way of illustration in clause (15) of the same section the power of apprehension and detention in custody of any person whom the authority authority empowered to detain not being lower in rank than that of a District Magistrate), suspects, on grounds appearing to that authority to be reasonable— (b) of having acted, acting or being about to act or being likely to act in a manner prejudicial to— (i) the defence of India and civil defence; (v) India's relations with foreign states: (vi) the maintenance of peaceful conditions in any part or (vii) the efficient conduct of military operations. It will thus appear that security of the state, public safety or interest, maintenance of public order and the maintenance of peaceful conditions in any part or area of India may be viewed separately even though strictly one clause may have an effect or bearing on another. Then follows Rule 30, which repeats the above conditions and permits detention of any person with a view to preventing him from acting in any of the above ways. The argument of Dr Lohia that the conditions are to be cumulatively applied is clearly untenable. It is not necessary to analyse Rule 30 which we quoted earlier and which follows the scheme of Section 3(15). The question is whether by taking power to prevent Dr Lohia from acting to the prejudice of “law and order” as against “public order” the District Magistrate went outside his We have here a case of detention under Rule 30 of the Defence of India Rules which permits apprehension and detention of a person likely to act in a manner prejudicial to the maintenance of public order. It follows that if such a person is not detained public disorder is the apprehended result. Disorder is no doubt prevented by the maintenance of law and order also but disorder is a broad spectrum which includes at one end small disturbances and at the other the most serious and cataclysmic happenings. Does the expression “public order” take in every kind of disorders or only some of them? The answer to this serves to distinguish “public order” from “law and order” because the latter undoubtedly takes in all of them. Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder. When two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Suppose that the two fighters were of rival communities and one of them tried to raise communal passions. The problem is still one of law and order but it raises the apprehension of public disorder. Other examples can be imagined. The contravention of law always affects order but before if can be said to affect public order, it must affect the community or the public at large. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Defence of India Act but disturbances which subvert the public order are. A District Magistrate is entitled to take action under Rule 30(1) (b) to prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances. It will thus appear that just as “public order” in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting “security of State”, “law and order” also comprehends disorders of less gravity than those affecting “public order”. One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State. By using the expression “maintenance of law and order” the District Magistrate was widening his own field of action and was adding a clause to the Defence of India Rules.” 13. There can be no doubt that for ‘public order’ to be disturbed, there must in turn be public disorder. Mere contravention of law such as indulging in cheating or criminal breach of trust certainly affects ‘law and order’ but before it can be said to affect ‘public order’, it must affect the community or the public at large. 14. There can be no doubt that what is alleged in the five FIRs pertain to the realm of ‘law and order’ in that various acts of cheating are ascribed to the Detenu which are punishable under the three sections of the Indian Penal Code set out in the five FIRs. A close reading of the Detention Order would make it clear that the reason for the said Order is not any apprehension of widespread public harm, danger or alarm but is only because the Detenu was successful in obtaining anticipatory bail/bail from the Courts in each of the five FIRs. If a person is granted anticipatory bail/bail wrongly, there are well-known remedies in the ordinary law to take care of the situation. The State can always appeal against the bail order granted and/or apply for cancellation of bail. The mere successful obtaining of anticipatory bail/bail orders being the real ground for detaining the Detenu, there can be no doubt that the harm, danger or alarm or feeling of security among the general public spoken of in Section 2(a) of the Telangana Prevention of Dangerous Activities Act is make believe and totally absent in the facts of the present case. 15. At this stage, it is important to advert to the counter affidavit dated 17.07.2021 filed by the State of Telangana. Paragraph 18 of the counter affidavit refers to the granting of bail by Courts in all the five FIRs, which is the real reason for the passing of the Detention Order, “18. It is submitted that in the instant case, the decision to detain the detenu herein is based on the perusal of the material on records which revealed that the detenu was granted bail by the Courts concerned in all the five cases relied upon by the detaining authority for preventively detaining him. The Respondent No. 2 herein recorded his satisfaction that the activities of the detenu are prejudicial to the maintenance of public order, and that ordinary law may not be an effective deterrent to prevent the detenu from indulging in further prejudicial activities. Furthermore, the materials relied upon and circumstances show that subjective satisfaction of the detaining authority is not tainted or illegal on any account. Therefore the passing of the detention order is justified considering that the illegal activities of the detenu would disturb the even tempo of life of the community, which makes it prejudicial to the maintenance of the public order and there is imminent possibility of the detenu again indulging in similar prejudicial activities.” Paragraph 21 of the counter affidavit then states as follows: “21. It is submitted that in the acts which disturb public tranquillity or are breaches of the peace should not be given a narrow meaning, but should be given a liberal interpretation and the expression ‘in the interest of public order’ is very wide amplitude as held by this Hon’ble Court in Madhu Limaye Versus Sub Division Magistrate reported in AIR 1971 SC 2486. Therefore the Respondent No. 2, before passing the said detention order considered the crucial issues as to whether the activities of the detenu were prejudicial to public and as to whether public order could be affected by only such contravention which affects the community or the public at large.” 16. The reference to Madhu Limaye v. Sub-Divisional Magistrate (supra) is wholly inapposite. This judgment dealt with the scope of the expression “in the interests of public order” which occurs in Article 19(2) to 19(4) of the Constitution of India. The observations made by this judgment were in the context of a challenge to Section 144 of the Code of Criminal Procedure. Importantly, this Court referred to the judgment in Ram Manohar Lohia (supra) and then opined: “19. Adopting this test we may say that the State is at the centre and society surrounds it. Disturbances of society go in a broad spectrum from more disturbance of the serenity of life to jeopardy of the State. The acts become graver as we journey from the periphery of the largest circle towards the centre. In this journey we travel first though public tranquillity, then through public order and lastly to the security of the State. 20. In dealing with the phrase “maintenance of public order” in the context of preventive detention, we confined the expression in the relevant Act to what was included in the second circle and left out that which was in the largest circle. But that consideration need not always apply because small local disturbances of the even tempo of life, may in a sense be said to effect “public order” in a different sense, namely, in the sense of a state of law abidingness vis-a-vis the safety of others. In our judgment the expression “in the interest of public order” in the Constitution is capable of taking within itself not only those acts which disturb the security of the State or act within ordre publique as described but also certain acts which disturb public tranquillity or are breaches of the peace. It is not necessary to give the expression a narrow meaning because, as has been observed, the expression “in the interest of public order” is very wide. Whatever may be said of “maintenance of public order” in the context of special laws entailing detention of persons without a trial on the pure subjective determination of the Executive cannot be said in other circumstances. In the former case this Court confined the meaning to graver episodes not involving cases of law and order which are not disturbances of public tranquillity but of ordre publique.” 17. To tear these observations out of context would be fraught with great danger when it comes to the liberty of a citizen under Article 21 of the Constitution of India. The reason for not adopting a narrow meaning of ‘public order’ in that case was because of the expression “in the interests of” which occurs to Article 19(2) to 19(4) and which is pressed into service only when a law is challenged as being unconstitutional for being violative of Article 19 of the Constitution. When a person is preventively detained, it is Article 21 and 22 that are attracted and not Article 19. Further, preventive detention must fall within the four corners of Article 21 read with Article 22 and the statute in question. To therefore argue that a liberal meaning must be given to the expression ‘public order’ in the context of a preventive detention statute is wholly inapposite and incorrect. On the contrary, considering that preventive detention is a necessary evil only to prevent public disorder, the Court must ensure that the facts brought before it directly and inevitably lead to a harm, danger or alarm or feeling of insecurity among the general public or any section thereof at large. 18. Several judgments of this Court have reminded us about the role of the High Courts and this Court in cases of preventive detention. Thus, in Frances Coralie Mullin v. W.C. Khambra (1980) 2 SCR 1095, a “We have no doubt in our minds about the role of the court in cases of preventive detention: it has to be one of eternal vigilance. No freedom is higher than personal freedom and no duty higher than to maintain it unimpaired. The Court's writ is the ultimate insurance against illegal detention. The Constitution enjoins conformance with the provisions of Article 22 and the Court exacts compliance. Article 22(5) vests in the detenu the right to be provided with an opportunity to make a representation. Here the Law Reports tell a story and teach a lesson. It is that the principal enemy of the detenu and his right to make a representation is neither high-handedness nor mean-mindedness but the casual indifference, the mindless insensibility, the routine and the red tape of the bureaucratic machine.” Likewise, in Vijay Narain Singh v. State of Bihar (1984) 3 SCC 14, a 3-Judge Bench of this Court (in which A.P. Sen,J. dissented), Venkataramiah,J., speaking for the majority, reminds us: “32. …It is well settled that the law of preventive detention is a hard law and therefore it should be strictly construed. Care should be taken that the liberty of a person is not jeopardised unless his case falls squarely within the four corners of the relevant law. The law of preventive detention should not be used merely to clip the wings of an accused who is involved in a criminal prosecution. It is not intended for the purpose of keeping a man under detention when under ordinary criminal law it may not be possible to resist the issue of orders of bail, unless the material available is such as would satisfy the requirements of the legal provisions authorising such detention. When a person is enlarged on bail by a competent criminal court, great caution should be exercised in scrutinising the validity of an order of preventive detention which is based on the very same charge which is to be tried by the criminal court.” O. Chinappa Reddy,J., in a short concurring judgment also sets out the constitutional fundamentals qua preventive detention as follows: “I entirely agree with my brother Venkataramiah, J. both on the question of interpretation of the provisions of the Bihar Control of Crimes Act, 1981 and on the question of the effect of the order of grant of bail in the criminal proceeding arising out of the incident constituting one of the grounds of detention. It is really unnecessary for me to add anything to what has been said by Venkataramiah, J., .but my brother Sen, J. has taken a different view and out of respect to him, I propose to add a few lines. I am unable to agree with my brother Sen, J. on several of the views expressed by him in his dissent. In particular, I do not agree with the view that “those who are responsible for the national security or for the maintenance of public order must be the sole judges of what the national security or public order requires” It is too perilous a proposition. Our Constitution does not give a carte blanche to any organ of the State to be the sole arbiter in such matters. Preventive detention is considered so treacherous and such an anathema to civilised thought and democratic polity that safeguards against undue exercise of the power to detain without trial, have been built into the Constitution itself and incorporated as Fundamental Rights. There are two sentinels, one at either end. The Legislature is required to make the law circumscribing the limits within which persons may be preventively detained and providing for the safeguards prescribed by the Constitution and the courts are required to examine, when demanded, whether there has been any excessive detention, that is whether the limits set by the Constitution and the Legislature have been transgressed. Preventive detention is not beyond judicial scrutiny. While adequacy or sufficiency may not be a ground of challenge, relevancy and proximity are certainly grounds of challenge. Nor is it for the court to put itself in the position of the detaining authority and to satisfy itself that the untested facts reveal a path of crime. I agree with my brother Sen,, J. when he says, “It has always been the view of this Court that the detention of individuals without trials for any length of time, however short, is wholly inconsistent with the basic ideas of our Government and the gravity of the evil to the community resulting from anti-social activities can never furnish an adequate reason for invading the personal liberty of the citizen except in accordance with the procedure established by law.” 19. In Union of India v. Yumnam Anand (2007) 10 SCC 190, this Court reiterated some of these principles as follows: “8. In case of preventive detention no offence is proved, nor any charge is formulated and the justification of such detention is suspicion or reasonability and there is no criminal conviction which can only be warranted by legal evidence. Preventive justice requires an action to be taken to prevent apprehended objectionable activities. (See R. v. Halliday [1917 AC 260 : (1916-17) All ER Rep Ext 1284 : 86 LJ KB 116 : 116 LT 417 (HL)] and Kubic Darusz v. Union of India [(1990) 1 SCC 568 : 1990 SCC (Cri) 227 : AIR 1990 SC 605] .) But at the same time, a person's greatest of human freedoms i.e. personal liberty is deprived, and, therefore, the laws of preventive detention are strictly construed, and a meticulous compliance with the procedural safeguard, however technical, is mandatory. The compulsions of the primordial need to maintain order in society, without which enjoyment of all rights, including the right of personal liberty would lose all their meanings, are the true justifications for the laws of preventive detention. This jurisdiction has been described as a “jurisdiction of suspicion”, and the compulsions to preserve the values of freedom of a democratic society and social order sometimes merit the curtailment of the individual liberty. (See Ayya v. State of U.P. [(1989) 1 SCC 374 : 1989 SCC (Cri) 153 : AIR 1989 SC 364] ) To lose our country by a scrupulous adherence to the written law, said Thomas Jefferson, would be to lose the law, absurdly sacrificing the end to the means. No law is an end itself and the curtailment of liberty for reasons of State's security and national economic discipline as a necessary evil has to be administered under strict constitutional restrictions. No carte blanche is given to any organ of the State to be the sole arbiter in such matters.” 20. In Rekha v. State of Tamil Nadu, (2011) 5 SCC 244, a 3-Judge Bench of this Court spoke of the interplay between Articles 21 and 22 “13. In our opinion, Article 22(3)(b) of the Constitution of India which permits preventive detention is only an exception to Article 21 of the Constitution. An exception is an exception, and cannot ordinarily nullify the full force of the main rule, which is the right to liberty in Article 21 of the Constitution. Fundamental rights are meant for protecting the civil liberties of the people, and not to put them in jail for a long period without recourse to a lawyer and without a trial. As observed in R. v. Secy. of State for the Home Deptt., ex p Stafford [(1998) 1 WLR 503 (CA)] : (WLR p. 518 F-G) “ … The imposition of what is in effect a substantial term of imprisonment by the exercise of executive discretion, without trial, lies uneasily with ordinary concepts of the rule of law.” Article 22, hence, cannot be read in isolation but must be read as an exception to Article 21. An exception can apply only in rare and exceptional cases, and it cannot override the main rule. 14. Article 21 is the most important of the fundamental rights guaranteed by the Constitution of India. Liberty of a citizen is a most important right won by our forefathers after long, historical and arduous struggles. Our Founding Fathers realised its value because they had seen during the freedom struggle civil liberties of our countrymen being trampled upon by foreigners, and that is why they were determined that the right to individual liberty would be placed on the highest pedestal along with the right to life as the basic right of the people of India. 17. Article 22(1) of the Constitution makes it a fundamental right of a person detained to consult and be defended by a lawyer of his choice. But Article 22(3) specifically excludes the applicability of clause (1) of Article 22 to cases of preventive detention. Therefore, we must confine the power of preventive detention to very narrow limits, otherwise the great right to liberty won by our Founding Fathers, who were also freedom fighters, after long, arduous and historical struggles, will become nugatory.” This Court went on to discuss, in some detail, the conceptual nature of “29. Preventive detention is, by nature, repugnant to democratic ideas and an anathema to the rule of law. No such law exists in the USA and in England (except during war time). Since, however, Article 22(3)(b) of the Constitution of India permits preventive detention, we cannot hold it illegal but we must confine the power of preventive detention within very narrow limits, otherwise we will be taking away the great right to liberty guaranteed by Article 21 of the Constitution of India which was won after long, arduous and historic struggles. It follows, therefore, that if the ordinary law of the land (the Penal Code and other penal statutes) can deal with a situation, recourse to a preventive detention law will be illegal. 30. Whenever an order under a preventive detention law is challenged one of the questions the court must ask in deciding its legality is: was the ordinary law of the land sufficient to deal with the situation? If the answer is in the affirmative, the detention order will be illegal. In the present case, the charge against the detenu was of selling expired drugs after changing their labels. Surely the relevant provisions in the Penal Code and the Drugs and Cosmetics Act were sufficient to deal with this situation. Hence, in our opinion, for this reason also the detention order in question In an important passage, this Court then dealt with certain general observations made by the Constitution Bench in Haradhan Saha v. The State of West Bengal (1975) 3 SCC 198 as follows: “33. No doubt it has been held in the Constitution Bench decision in Haradhan Saha case [(1975) 3 SCC 198 : 1974 SCC (Cri) 816] that even if a person is liable to be tried in a criminal court for commission of a criminal offence, or is actually being so tried, that does not debar the authorities from passing a detention order under a preventive detention law. This observation, to be understood correctly, must, however, be construed in the background of the constitutional scheme in Articles 21 and 22 of the Constitution (which we have already explained). Article 22(3)(b) is only an exception to Article 21 and it is not itself a fundamental right. It is Article 21 which is central to the whole chapter on fundamental rights in our Constitution. The right to liberty means that before sending a person to prison a trial must ordinarily be held giving him an opportunity of placing his defence through his lawyer. It follows that if a person is liable to be tried, or is actually being tried, for a criminal offence, but the ordinary criminal law (the Penal Code or other penal statutes) will not be able to deal with the situation, then, and only then, can the preventive detention law be taken recourse to. 34. Hence, the observation in SCC para 34 in Haradhan Saha case [(1975) 3 SCC 198 : 1974 SCC (Cri) 816] cannot be regarded as an unqualified statement that in every case where a person is liable to be tried, or is actually being tried, for a crime in a criminal court a detention order can also be passed under a preventive detention law. 35. It must be remembered that in cases of preventive detention no offence is proved and the justification of such detention is suspicion or reasonable probability, and there is no conviction which can only be warranted by legal evidence. Preventive detention is often described as a “jurisdiction of suspicion” (vide State of Maharashtra v. Bhaurao Punjabrao Gawande [(2008) 3 SCC 613 : (2008) 2 SCC (Cri) 128] , SCC para 63). The detaining authority passes the order of detention on subjective satisfaction. Since clause (3) of Article 22 specifically excludes the applicability of clauses (1) and (2), the detenu is not entitled to a lawyer or the right to be produced before a Magistrate within 24 hours of arrest. To prevent misuse of this potentially dangerous power the law of preventive detention has to be strictly construed and meticulous compliance with the procedural safeguards, however technical, is, in our opinion, mandatory and vital. 36. It has been held that the history of liberty is the history of procedural safeguards. (See Kamleshkumar Ishwardas Patel v. Union of India [(1995) 4 SCC 51 : 1995 SCC (Cri) 643] vide para 49.) These procedural safeguards are required to be zealously watched and enforced by the court and their rigour cannot be allowed to be diluted on the basis of the nature of the alleged activities of the detenu. As observed in Rattan Singh v. State of Punjab [(1981) 4 SCC 481 : 1981 SCC (Cri) 853] : (SCC p. 483, para 4) “4. … May be that the detenu is a smuggler whose tribe (and how their numbers increase!) deserves no sympathy since its activities have paralysed the Indian economy. But the laws of preventive detention afford only a modicum of safeguards to persons detained under them, and if freedom and liberty are to have any meaning in our democratic set up, it is essential that at least those safeguards are not denied to the detenus.” 39. Personal liberty protected under Article 21 is so sacrosanct and so high in the scale of constitutional values that it is the obligation of the detaining authority to show that the impugned detention meticulously accords with the procedure established by law. The stringency and concern of judicial vigilance that is needed was aptly described in the following words in Thomas Pelham Dale case [(1881) 6 “Then comes the question upon the habeas corpus. It is a general rule, which has always been acted upon by the courts of England, that if any person procures the imprisonment of another he must take care to do so by steps, all of which are entirely regular, and that if he fails to follow every step in the process with extreme regularity the court will not allow the imprisonment to continue.”” 21. Shri Ranjit Kumar, learned senior counsel appearing on behalf of the State of Telangana relied strongly upon Subramanian v. State of Tamil Nadu (2012) 4 SCC 699, and in particular upon paragraphs 14 “14. It is well settled that the court does not interfere with the subjective satisfaction reached by the detaining authority except in exceptional and extremely limited grounds. The court cannot substitute its own opinion for that of the detaining authority when the grounds of detention are precise, pertinent, proximate and relevant, that sufficiency of grounds is not for the court but for the detaining authority for the formation of subjective satisfaction that the detention of a person with a view to preventing him from acting in any manner prejudicial to public order is required and that such satisfaction is subjective and not objective. The object of the law of preventive detention is not punitive but only preventive and further that the action of the executive in detaining a person being only precautionary, normally, the matter has necessarily to be left to the discretion of the executive authority. It is not practicable to lay down objective rules of conduct in an exhaustive manner. The satisfaction of the detaining authority, therefore, is considered to be of primary importance with certain latitude in the exercise of its discretion. 15. The next contention on behalf of the detenu, assailing the detention order on the plea that there is a difference between “law and order” and “public order” cannot also be sustained since this Court in a series of decisions recognised that public order is the even tempo of life of the community taking the country as a whole or even a specified locality. [Vide Pushpadevi M. Jatia v. M.L. paras 11 & 14; Ram Manohar Lohia v. State of Bihar [AIR of India v. Arvind Shergill [(2000) 7 SCC 601 : 2000 SCC (Cri) 1422] , SCC paras 4 & 6; Sunil Fulchand Shah v. Union of India [(2000) 3 SCC 409 : 2000 SCC (Cri) 659] , SCC para 28 (Constitution Bench); Commr. of Police v. C. paras 5, 7 & 13.]” The statement made by this Court in paragraphs 14 and 15 were on facts which were completely different from the facts of the present case as reflected in paragraphs 16 and 17 thereof which read as “16. We have already extracted the discussion, analysis and the ultimate decision of the detaining authority with reference to the ground case dated 18-7-2011. It is clear that the detenu, armed with “aruval”, along with his associates, armed with “katta” came to the place of the complainant. The detenu abused the complainant in filthy language and threatened to murder him. His associates also threatened him. The detenu not only threatened the complainant with weapon like “aruval” but also damaged the properties available in the shop. When the complainant questioned the detenu and his associates, the detenu slapped him on his face. When the complainant raised an alarm for rescue, on the arrival of general public in and around, they were also threatened by the detenu and his associates that they will kill them. 17. It is also seen from the grounds of detention that because of the threat by the detenu and his associates by showing weapons, the nearby shopkeepers closed their shops out of fear and auto drivers took their autos from their stand and left the place. According to the detaining authority, the above scene created a panic among the public. In such circumstances, the scene created by the detenu and his associates cannot be termed as only law and order problem but it is public order as assessed by the detaining authority who is supposed to safeguard and protect the interest of public. Accordingly, we reject the contention raised by the learned Senior Counsel for the appellant.” This was obviously a case in which ‘public order’ was directly affected and not a case in which ‘law and order’ alone was affected and is thus distinguishable, on facts, from the present case. 22. In Yumman Ongbi Lembi Leima v. State of Manipur (2012) 2 SCC 176, this Court specifically adverted to when a preventive detention order would be bad, as recourse to the ordinary law would be sufficient in the facts of a given case, with particular regard being had to bail “23. Having carefully considered the submissions made on behalf of the respective parties, we are inclined to hold that the (sic exercise of) extraordinary powers of detaining an individual in contravention of the provisions of Article 22(2) of the Constitution was not warranted in the instant case, where the grounds of detention do not disclose any material which was before the detaining authority, other than the fact that there was every likelihood of Yumman Somendro being released on bail in connection with the cases in respect of which he had been arrested, to support the order of detention. 24. Article 21 of the Constitution enjoins that: “21. Protection of life and personal liberty.—No person shall be deprived of his life or personal liberty except according to procedure established by law.” In the instant case, although the power is vested with the authorities concerned, unless the same are invoked and implemented in a justifiable manner, such action of the detaining authority cannot be sustained, inasmuch as, such a detention order is an exception to the provisions of Articles 21 and 22(2) of the Constitution. 25. When the courts thought it fit to release the appellant's husband on bail in connection with the cases in respect of which he had been arrested, the mere apprehension that he was likely to be released on bail as a ground of his detention, is not justified. 27. As has been observed in various cases of similar nature by this Court, the personal liberty of an individual is the most precious and prized right guaranteed under the Constitution in Part III thereof. The State has been granted the power to curb such rights under criminal laws as also under the laws of preventive detention, which, therefore, are required to be exercised with due caution as well as upon a proper appreciation of the facts as to whether such acts are in any way prejudicial to the interest and the security of the State and its citizens, or seek to disturb public law and order, warranting the issuance of such an order. An individual incident of an offence under the Penal Code, however heinous, is insufficient to make out a case for issuance of an order of preventive detention.” This judgment was followed in Mungala Yadamma v. State of A.P. “7. Having considered the submissions made on behalf of the respective parties, we are unable to accept the submissions made on behalf of the State in view of the fact that the decision in Rekha case [(2011) 5 SCC 244 : (2011) 2 SCC (Cri) 596] , in our view, clearly covers the facts of this case as well. The offences complained of against the appellant are of a nature which can be dealt with under the ordinary law of the land. Taking recourse to the provisions of preventive detention is contrary to the constitutional guarantees enshrined in Articles 19 and 21 of the Constitution and sufficient grounds have to be made out by the detaining authorities to invoke such provisions. 8. In fact, recently, in Yumman Ongbi Lembi Leima v. State of Manipur [(2012) 2 SCC 176] we had occasion to consider the same issue and the three-Judge Bench had held that the personal liberty of an individual is the most precious and prized right guaranteed under the Constitution in Part III thereof. The State has been granted the power to curb such rights under criminal laws, as also under the laws of preventive detention, which, therefore, are required to be exercised with due caution as well as upon a proper appreciation of the facts as to whether such acts are in any way prejudicial to the interest and the security of the State and its citizens, or seek to disturb public law and order, warranting the issuance of such an order. 9. No doubt, the offences alleged to have been committed by the appellant are such as to attract punishment under the Andhra Pradesh Prohibition Act, but that in our view has to be done under the said laws and taking recourse to preventive detention laws would not be warranted. Preventive detention involves detaining of a person without trial in order to prevent him/her from committing certain types of offences. But such detention cannot be made a substitute for the ordinary law and absolve the investigating authorities of their normal functions of investigating crimes which the detenu may have committed. After all, preventive detention in most cases is for a year only and cannot be used as an instrument to keep a person in perpetual custody without trial. Accordingly, while following the three-Judge Bench decision in Rekha case [(2011) 5 SCC 244 : (2011) 2 SCC (Cri) 596] we allow the appeal and set aside the order passed by the High Court dated 20-7-2011 [ The High Court dismissed the same vide Munagala Yadamma v. State of A.P., WP (Cri) No. 13313 of 2011, order dated 20-7-2011 (AP)] and also quash the detention order dated 15-2-2011, issued by the Collector and District Magistrate, Ranga 23. Shri Gaurav Agrawal and Shri Ranjit Kumar also cited the judgments of this Court in Sama Aruna v. State of Telangana (2018) 12 SCC 150 and Collector & District Magistrate v. Sangala Kondamma (2005) 3 SCC 666 respectively. Since we are not going into other grounds raised by the Petitioner, it is unnecessary to discuss the law laid down in these judgments. 24. On the facts of this case, as has been pointed out by us, it is clear that at the highest, a possible apprehension of breach of law and order can be said to be made out if it is apprehended that the Detenu, if set free, will continue to cheat gullible persons. This may be a good ground to appeal against the bail orders granted and/or to cancel bail but certainly cannot provide the springboard to move under a preventive detention statute. We, therefore, quash the detention order on this ground. Consequently, it is unnecessary to go into any of the other grounds argued by the learned counsel on behalf of the Petitioner. The impugned judgment is set aside and the Detenu is ordered to be freed forthwith. Accordingly, the appeal is allowed.
The Supreme Court stated that simply worrying someone might break a law isn't enough to hold them without trial under special detention laws. A group of judges, led by Justice RF Nariman, explained that just breaking a law, like cheating or misusing someone's trust, affects "law and order." However, for it to affect "public order," it needs to impact many people or the community widely, not just a few individuals. The judges, including Justice Hrishikesh Roy, stated that a special order to hold someone without trial (a "Preventive Detention Order") can only be issued if that person's actions truly harm or are likely to harm the general peace of the public. They made this statement while canceling such an order given to someone under a specific law in Telangana, which deals with many types of serious offenders like drug dealers, land grabbers, and financial criminals. In this particular situation, the order to detain the person mentioned five police reports (called FIRs) filed against him. These reports were for crimes like cheating, misusing trust, and criminal intimidation under India's main criminal law (the IPC). The person had already been given bail or "anticipatory bail" (bail before being arrested) in all these cases. An "Advisory Board" then reviewed the person's side of the story and still approved his detention. His wife then appealed this decision to the High Court, but her appeal was turned down. The Court clarified that the terms "law and order," "public order," and "security of state" have different meanings. During the appeal, the court pointed out that the Telangana law defines "public order" as something that causes harm, danger, fear, or a feeling of being unsafe among many people, or a serious, widespread threat to life or public health. The judges again noted that "law and order," "public order," and "security of state" are distinct concepts. "13. The Court stated clearly that for 'public order' to be disrupted, there must actually be widespread public unrest. Simply breaking a law, like engaging in cheating or misusing someone's trust, certainly affects 'law and order.' However, for it to be considered an impact on 'public order,' it must affect the entire community or many people, not just a few individuals. 14. The Court found that the claims in the five police reports against the person were about breaking 'law and order' – specifically, various acts of cheating that are illegal under the Indian Penal Code. The Court made it clear that the reason for the detention order was not a worry of widespread public harm or danger. Instead, the real reason was simply that the person had managed to get bail or anticipatory bail from the courts in all five cases. The Court said that if someone gets bail unfairly, there are normal legal ways to fix it. The government can appeal the bail decision or ask for the bail to be canceled. Since the actual reason for holding the person was just that he got bail, the Court concluded that any claim of widespread public harm or insecurity, as mentioned in the Telangana law, was completely made up and did not apply in this case." The Court stressed that holding someone without trial (preventive detention) is only a necessary last resort to stop serious public disorder. Citing a previous case, the judges repeated that holding someone without trial is a necessary last resort, used only to prevent widespread public disorder. They then added: "17. The Court warned that taking these ideas out of their original meaning would be very risky for a person's freedom, which is protected by Article 21 of India's Constitution (the right to life and personal liberty). They explained that in the earlier case, a broader meaning of 'public order' was used because it involved checking if a law went against Article 19 of the Constitution, which deals with freedoms like speech. However, when someone is held without trial, the rules in Articles 21 and 22 (protection against arrest and detention) apply, not Article 19. Therefore, arguing for a broad definition of 'public order' in cases of detention without trial is wrong. Instead, because detention without trial is only meant to prevent major public unrest, the Court must make sure that the facts clearly and certainly show harm, danger, fear, or a sense of insecurity among a large part of the public." The judges approved the appeal and canceled the detention, stating: "The Court concluded that, at most, there was a chance the person might break 'law and order' if he continued to cheat people who are easily tricked after being released. This might be a good reason to appeal his bail decisions or to ask for his bail to be canceled. However, it is definitely not a strong enough reason to use a law that allows detention without trial. Therefore, the Court canceled the detention order based on this point. As a result, they did not need to review the other arguments made by the person's lawyer. The High Court's earlier decision was overturned, and the person was ordered to be released immediately. The appeal was approved."
2. The present appeal arises out of a judgment dated 31.03.2021, passed by the High Court for the State of Telangana at Hyderabad, by which a Writ Petition filed by the Petitioner challenging a Preventive Detention Order [hereinafter referred to as “Detention Order”] passed against the Petitioner’s husband [hereinafter referred to as “the Detenu”] under Section 3(2) of the Telangana Prevention of Dangerous Activities of Boot-leggers, Dacoits, Drug-Offenders, Crime Offenders and White Collar or Financial Offenders Act, 1986 [hereinafter referred to as “Telangana Prevention of Dangerous Activities Act”] , was dismissed. 3. The Detention Order under the provisions of the Telangana Prevention of Dangerous Activities Act is dated 28.09.2020. It refers to five FIRs that have been filed against the Detenu, all the said FIRs being under Sections 420, 406 and 506 of the IPC. The facts contained in the FIRs range from October, 2017 to December, 2019 and are similar. We may set out the facts contained in FIR No.705 of 2019 as a sample of similar FIRs filed against the Detenu as follows [This narration of the FIR is to be found in the Detention Order itself]: “On 12.12.2019 at 1200 hours a complaint was received from Sri Kommu Naveen Kumar S/o Veeraswamy, aged about 24 years, Occ: Car Mechanic, R/o H.No. 2-32, Yadaran Village, Shamirpet Mandal stating that he has been running a Garage near main road at Muraharipally village for the past one year. One Banka Ravikanth, aged about 35 years used to come to his garage for two to three times in a month for his car servicing. In the month of March, 2019 the said Ravikanth introduced himself as a High Court advocate and he would invest money in newly upcoming companies and insisted the complainant to invest money for 100% return. He also informed that they are three advocates, of them one is CA (Chartered Accountant) and another is CS (Company Secretary) by name Chandramouli, aged about 65 years. On believing his words, he transferred Rs.50,000/- through Phone-pay to his Indian Bank, Shamirpet branch vide A/c No. 6714073306. Again on 28.05.2019 he transferred Rs. 1,00,000/- through Phone-pay as second investment and on 20.06.2019 he deposited Rs. 1,00,000/- from his Indian Bank, Gachibowli Branch account to his account besides giving net cash of Rs. 2,00,000/- by hand. While sending Rs. 1 lakh through phone pay in presence of one Prasad, Banka Ravikanth assured the complainant that investment he would give him Rs. 41,000/- per month throughout the year and he will take Rs. 3,000/- towards his commission. On 12.12.2019 when the complainant asked him to return his money, he threatened with dire consequences. The complainant stated that the said Ravikanth has cheated him by saying that he would get more return. On the strength of the complainant, police registered a case and investigation into.” Following upon the narration of the 5 FIRs comes this important “Due to above incidents, the complainants, victims and other young aspirants, who want to invest money in stock/share market and derive benefits became scared and feeling insecure. These incidents have also caused loss of faith and trust among investors in stock trading fearing similar cheating towards them by the people like you. They are hesitated to consult any consultancies or persons fearing similar cheating by the unknown persons in the guise of providing good profits. These prejudicial activities have also caused disturbance in the public.” 4. The Detention Order then refers to the ‘Modus Operandi’ of the “You are a native of Karimnagar district. You completed graduation (B.Com) in 2011 and LLB in 2019 and have been doing trading in stock market. You have introduced yourselves to the victims as a High Court Advocate and you have a team consisting of one CA (Chartered Accountant) and CS (Company Secretary) and three advocates. Your CS has an expertise and links in Central and State governments. You have knowledgeable persons in share marketing and used to invest money in upcoming companies which ensure return of 100%. You would lure the innocent public in the guise of providing good profit by investing their money in share marketing. You used to contact your known persons and lure them to invest their money in share market to get good profits assuring the profit 100% within a short period. Further you used to give blank cheques and ask commission from the victims to gain their confidence. As per plan, you collected amount from the victims through Phone-pe which is linked to your bank account and net-banking and in-person. When you received money to your bank account, immediately you had transfer the received amount to your wife's bank account. When the victims contact you over phone, you first start avoiding them and then diverting their calls and finally cheating them. Later, you changed your residential address in order to conceal your where-abouts from the victims. You have cheated so many people to the tune of more than Rs. 50.00 lakhs in the guise of providing good profit through investment in share market. You are involved in Cr.No.34/2020 u/s 406, 420 IPC of Malkajgiri Police Station in the limits of Rachakonda Police Commissionerate which referred by way of your antecedent criminal background the same is not relied upon for your detention.” 5. Thereafter, the Detention Order narrates that anticipatory bail/bail has been granted to the Detenu in all the aforesaid FIRs, the last such relief granted being on 10.08.2020. The Detention Order then narrates: “Having regard to your involvement in series of criminal activities such as cheating in the guise of providing good profit by investing their money in stock market and collected huge amounts to the tune of more than Rs. 50 lakhs from them in an organized way and in view of the bail petitions moved by you and granted in the aforesaid cases and later releasing on conditional bail, I am satisfied that free movement of such an offender like you is not safe in the interest of the society as there is an imminent possibility of you indulging in similar prejudicial activities with another set of innocent youth and cheat them on the pretext of providing good profit by investing their money in stock market, which are detrimental to public order, unless you were prevented from doing so by an appropriate order of detention. Thus you have indulged in the acts of White Collar offences by committing offences such as cheating so many people by collecting more than Rs. 50 lakhs from them through Phone Pay and online banking and sometimes in person in the guise of providing more profit in the limits of Cyberabad Police Commissionerate. Further your acts have been adversely affecting the maintenance of public order and creating feeling of insecurity among young people, thus disturbing peace and tranquillity in the area. It is imperative to prevent you from acting in any manner prejudicial to the maintenance of public order. I feel that recourse to normal law may not be effective deterrent-in preventing you from indulging in such further activities prejudicial to the maintenance of public order in the area, unless you were detained by invoking the provisions under the "Telangana Prevention of Dangerous Activities of Offenders, Arms Offenders, Cyber Crime Offenders and White Collar or Financial Offenders Act, 1986, (Act No. 01 of 6. As a result thereof, the Detenu was preventively detained from the date of the Detention Order itself. A representation dated 31.10.2020 was made by the Petitioner herein to the Commissioner of Police, Cyberabad Commissionerate [Respondent No. 2] which was considered by the Advisory Board, who by its Order 11.11.2020 found that there was sufficient cause to continue the Detention Order. Vide the Order of the State of Telangana dated 17.12.2020, the Detention Order was confirmed and the period of detention was directed to be for a period of one year from 05.10.2020. 7. The impugned judgment, after narrating the facts and the arguments made by counsel on behalf of the Petitioner as well as counsel on “9.In the instant case, a perusal of the material placed on record reveals that the detenu was granted bail by the Courts concerned in all the five cases relied upon by the detaining authority for preventively detaining him. Under these circumstances, the contention of the respondents that the illegal activities of the detenu would disturb the even tempo of life of the community which makes it prejudicial to the maintenance of the public order and there is imminent possibility of the detenu again indulging in similar prejudicial activities, cannot be brushed aside.” The judgment then referred to the decisions of this Court in Madhu Limaye v. Sub-Divisional Magistrate (1970) 3 SCC 746, Commissioner of Police v. C. Sunita (2004) 7 SCC 467 and R.Kalavathi v. State of Tamil Nadu (2006) 6 SCC 14, and then “The modus operandi of the detenu in the alleged offences which were committed in quick succession would certainly disturb the public peace and tranquillity. So it is imperative upon the officers concerned to pass the order of detention, since the acts of the detenu are prejudicial to the maintenance of public order. The illegal activities of the detenu were of such a reach and extent, that they would certainly affect the even tempo of life and were prejudicial to the public order. The detaining authority had sufficient material to record subjective satisfaction that the detention of the detenu was necessary to maintain public order and even tempo of life of the community. The order of detention does not suffer from any illegality. The grounds of detention, as indicated in the impugned order, are found to be relevant and in tune with the provisions of the P.D.Act. Since the detenu got bail in all the five cases relied upon by the detaining authority, there is nothing wrong on the part of the detaining authority in raising an apprehension that there is every possibility of the detenu committing similar offences, which would again certainly affect the public order. The quick succession of commission of alleged offences by the detenu makes it amply clear that there is every possibility of detenu committing similar offences in future, which are prejudicial to the maintenance of public order.” 8. Shri Gaurav Agarwal, learned counsel appearing on behalf of the Petitioner has raised three points before us. First and foremost, he said there is no proximate or live connection between the acts complained of and the date of the Detention Order, as the last act that was complained of, which is discernible from the first 3 FIRs [FIRs dated 12.12.2019, 12.12.2019 and 14.12.2019], was in December 2019 whereas the Detention Order was passed 9 months later on 28.09.2020. He then argued, without conceding, that at best only a ‘law and order’ problem if at all would arise on the facts of these cases and not a ‘public order’ problem, and referred to certain judgments of this court to buttress the same. He also argued that the Detention Order was totally perverse in that it was passed only because anticipatory bail/bail applications were granted. The correct course of action would have been for the State to move to cancel the bail that has been granted if any further untoward incident were to take place. 9. Shri Ranjit Kumar, learned senior counsel appearing on behalf of the State of Telangana, reiterated the grounds contained in the Detention Order and argued that the Detenu was a habitual fraudster who had therefore created fear amongst the gullible public, and since he was likely to commit similar offences in future, it was important to preventively detain him, as the ordinary law had no deterrent effect on him. Further, there is no doubt that he had infringed ‘public order’ as defined by the Telangana Prevention of Dangerous Activities Act and had disturbed the even tempo of life of persons who were cheated by him and were likely to be cheated by him. 10. Having heard learned counsel for both parties, it is first important to set out the important provisions of the Act as follows: In this Act, unless the context otherwise requires, (a) “acting in any manner prejudicial to the maintenance of public order” means when a bootlegger, a dacoit, a drug- offender, a goonda, an immoral traffic offender, Land- Grabber, a Spurious Seed Offender, an Insecticide Offender, a Fertiliser Offender, a Food Adulteration Offender, a Fake Document Offender, a Scheduled Commodities Offender, a Forest Offender, a Gaming Offender, a Sexual Offender, an Explosive Substances Offender, an Arms Offender, a Cyber Crime Offender and a White Collar or Financial Offender is engaged or is making preparations for engaging, in any of his activities as such, which affect adversely, or are likely to affect adversely, the maintenance of public order: Explanation:- For the purpose of this clause public order shall be deemed to have been affected adversely or shall be deemed likely to be affected adversely inter alia, if any of the activities of any of the persons referred to in this clause directly, or indirectly, is causing or calculated to cause any harm, danger or alarm or a feeling of insecurity among the general public or any section thereof or a grave wide-spread (x) “White collar offender” or “Financial Offender” means a person who commits or abets the commission of offences punishable under the Telangana Protection of Depositors of Financial Establishment Act, 1999 (Act 17 of 1999) or under sections 406 to 409 or 417 to 420 or under Chapter XVIII of “Section 3. Power to make orders detaining certain (1) The Government may, if satisfied with respect to any bootlegger, dacoit, drug-offender, goonda, immoral traffic Cyber Crime Offender and White Collar or Financial Offender that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do, make an order directing that such person be detained.” “Section 13. Maximum period of detention The maximum period for which any person may be detained, in pursuance of any detention order made under this Act which has been confirmed under section 12, shall be twelve months from the date of detention.” 11. While it cannot seriously be disputed that the Detenu may be a “white collar offender” as defined under Section 2(x) of the Telangana Prevention of Dangerous Activities Act, yet a Preventive Detention Order can only be passed if his activities adversely affect or are likely to adversely affect the maintenance of public order. Public order is defined in the Explanation to Section 2(a) of the Telangana Prevention of Dangerous Activities Act to be a harm, danger or alarm or a feeling of insecurity among the general public or any section thereof or a grave widespread danger to life or public health. 12. As is well-known, the expressions ‘law and order’, ‘public order’, and ‘security of state’ are different from one another. In Ram Manohar Lohia v. State of Bihar (1966) 1 SCR 709 the question before this Court arose under a Preventive Detention Order made under Rule 30 of the Defence of India Rules, which permits apprehension and detention of a person likely to act in a manner prejudicial to the maintenance of public order. This Court set out the distinction between a mere law and order disturbance and a public order disturbance as “The Defence of India Act and the Rules speak of the conditions under which preventive detention under the Act can be ordered. In its long title and the preamble the Defence of India Act speaks of the necessity to provide for special measures to ensure public safety and interest, the defence of India and civil defence. The expression public safety and interest between them indicate the range of action for maintaining security peace and tranquillity of India whereas the expressions defence of India and civil defence connote defence of India and its people against aggression from outside and action of persons within the country. These generic terms were used because the Act seeks to provide for a congeries of action of which preventive detention is just a small part. In conferring power to make rules, Section 3 of the Defence of India Act enlarges upon the terms of the preamble by specification of details. It speaks of defence of India and civil defence and public safety without change but it expands the idea of public interest into maintenance of public order, the efficient conduct of military operations and maintaining of supplies and services essential to the life of the community. Then it mentions by way of illustration in clause (15) of the same section the power of apprehension and detention in custody of any person whom the authority authority empowered to detain not being lower in rank than that of a District Magistrate), suspects, on grounds appearing to that authority to be reasonable— (b) of having acted, acting or being about to act or being likely to act in a manner prejudicial to— (i) the defence of India and civil defence; (v) India's relations with foreign states: (vi) the maintenance of peaceful conditions in any part or (vii) the efficient conduct of military operations. It will thus appear that security of the state, public safety or interest, maintenance of public order and the maintenance of peaceful conditions in any part or area of India may be viewed separately even though strictly one clause may have an effect or bearing on another. Then follows Rule 30, which repeats the above conditions and permits detention of any person with a view to preventing him from acting in any of the above ways. The argument of Dr Lohia that the conditions are to be cumulatively applied is clearly untenable. It is not necessary to analyse Rule 30 which we quoted earlier and which follows the scheme of Section 3(15). The question is whether by taking power to prevent Dr Lohia from acting to the prejudice of “law and order” as against “public order” the District Magistrate went outside his We have here a case of detention under Rule 30 of the Defence of India Rules which permits apprehension and detention of a person likely to act in a manner prejudicial to the maintenance of public order. It follows that if such a person is not detained public disorder is the apprehended result. Disorder is no doubt prevented by the maintenance of law and order also but disorder is a broad spectrum which includes at one end small disturbances and at the other the most serious and cataclysmic happenings. Does the expression “public order” take in every kind of disorders or only some of them? The answer to this serves to distinguish “public order” from “law and order” because the latter undoubtedly takes in all of them. Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder. When two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Suppose that the two fighters were of rival communities and one of them tried to raise communal passions. The problem is still one of law and order but it raises the apprehension of public disorder. Other examples can be imagined. The contravention of law always affects order but before if can be said to affect public order, it must affect the community or the public at large. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Defence of India Act but disturbances which subvert the public order are. A District Magistrate is entitled to take action under Rule 30(1) (b) to prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances. It will thus appear that just as “public order” in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting “security of State”, “law and order” also comprehends disorders of less gravity than those affecting “public order”. One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State. By using the expression “maintenance of law and order” the District Magistrate was widening his own field of action and was adding a clause to the Defence of India Rules.” 13. There can be no doubt that for ‘public order’ to be disturbed, there must in turn be public disorder. Mere contravention of law such as indulging in cheating or criminal breach of trust certainly affects ‘law and order’ but before it can be said to affect ‘public order’, it must affect the community or the public at large. 14. There can be no doubt that what is alleged in the five FIRs pertain to the realm of ‘law and order’ in that various acts of cheating are ascribed to the Detenu which are punishable under the three sections of the Indian Penal Code set out in the five FIRs. A close reading of the Detention Order would make it clear that the reason for the said Order is not any apprehension of widespread public harm, danger or alarm but is only because the Detenu was successful in obtaining anticipatory bail/bail from the Courts in each of the five FIRs. If a person is granted anticipatory bail/bail wrongly, there are well-known remedies in the ordinary law to take care of the situation. The State can always appeal against the bail order granted and/or apply for cancellation of bail. The mere successful obtaining of anticipatory bail/bail orders being the real ground for detaining the Detenu, there can be no doubt that the harm, danger or alarm or feeling of security among the general public spoken of in Section 2(a) of the Telangana Prevention of Dangerous Activities Act is make believe and totally absent in the facts of the present case. 15. At this stage, it is important to advert to the counter affidavit dated 17.07.2021 filed by the State of Telangana. Paragraph 18 of the counter affidavit refers to the granting of bail by Courts in all the five FIRs, which is the real reason for the passing of the Detention Order, “18. It is submitted that in the instant case, the decision to detain the detenu herein is based on the perusal of the material on records which revealed that the detenu was granted bail by the Courts concerned in all the five cases relied upon by the detaining authority for preventively detaining him. The Respondent No. 2 herein recorded his satisfaction that the activities of the detenu are prejudicial to the maintenance of public order, and that ordinary law may not be an effective deterrent to prevent the detenu from indulging in further prejudicial activities. Furthermore, the materials relied upon and circumstances show that subjective satisfaction of the detaining authority is not tainted or illegal on any account. Therefore the passing of the detention order is justified considering that the illegal activities of the detenu would disturb the even tempo of life of the community, which makes it prejudicial to the maintenance of the public order and there is imminent possibility of the detenu again indulging in similar prejudicial activities.” Paragraph 21 of the counter affidavit then states as follows: “21. It is submitted that in the acts which disturb public tranquillity or are breaches of the peace should not be given a narrow meaning, but should be given a liberal interpretation and the expression ‘in the interest of public order’ is very wide amplitude as held by this Hon’ble Court in Madhu Limaye Versus Sub Division Magistrate reported in AIR 1971 SC 2486. Therefore the Respondent No. 2, before passing the said detention order considered the crucial issues as to whether the activities of the detenu were prejudicial to public and as to whether public order could be affected by only such contravention which affects the community or the public at large.” 16. The reference to Madhu Limaye v. Sub-Divisional Magistrate (supra) is wholly inapposite. This judgment dealt with the scope of the expression “in the interests of public order” which occurs in Article 19(2) to 19(4) of the Constitution of India. The observations made by this judgment were in the context of a challenge to Section 144 of the Code of Criminal Procedure. Importantly, this Court referred to the judgment in Ram Manohar Lohia (supra) and then opined: “19. Adopting this test we may say that the State is at the centre and society surrounds it. Disturbances of society go in a broad spectrum from more disturbance of the serenity of life to jeopardy of the State. The acts become graver as we journey from the periphery of the largest circle towards the centre. In this journey we travel first though public tranquillity, then through public order and lastly to the security of the State. 20. In dealing with the phrase “maintenance of public order” in the context of preventive detention, we confined the expression in the relevant Act to what was included in the second circle and left out that which was in the largest circle. But that consideration need not always apply because small local disturbances of the even tempo of life, may in a sense be said to effect “public order” in a different sense, namely, in the sense of a state of law abidingness vis-a-vis the safety of others. In our judgment the expression “in the interest of public order” in the Constitution is capable of taking within itself not only those acts which disturb the security of the State or act within ordre publique as described but also certain acts which disturb public tranquillity or are breaches of the peace. It is not necessary to give the expression a narrow meaning because, as has been observed, the expression “in the interest of public order” is very wide. Whatever may be said of “maintenance of public order” in the context of special laws entailing detention of persons without a trial on the pure subjective determination of the Executive cannot be said in other circumstances. In the former case this Court confined the meaning to graver episodes not involving cases of law and order which are not disturbances of public tranquillity but of ordre publique.” 17. To tear these observations out of context would be fraught with great danger when it comes to the liberty of a citizen under Article 21 of the Constitution of India. The reason for not adopting a narrow meaning of ‘public order’ in that case was because of the expression “in the interests of” which occurs to Article 19(2) to 19(4) and which is pressed into service only when a law is challenged as being unconstitutional for being violative of Article 19 of the Constitution. When a person is preventively detained, it is Article 21 and 22 that are attracted and not Article 19. Further, preventive detention must fall within the four corners of Article 21 read with Article 22 and the statute in question. To therefore argue that a liberal meaning must be given to the expression ‘public order’ in the context of a preventive detention statute is wholly inapposite and incorrect. On the contrary, considering that preventive detention is a necessary evil only to prevent public disorder, the Court must ensure that the facts brought before it directly and inevitably lead to a harm, danger or alarm or feeling of insecurity among the general public or any section thereof at large. 18. Several judgments of this Court have reminded us about the role of the High Courts and this Court in cases of preventive detention. Thus, in Frances Coralie Mullin v. W.C. Khambra (1980) 2 SCR 1095, a “We have no doubt in our minds about the role of the court in cases of preventive detention: it has to be one of eternal vigilance. No freedom is higher than personal freedom and no duty higher than to maintain it unimpaired. The Court's writ is the ultimate insurance against illegal detention. The Constitution enjoins conformance with the provisions of Article 22 and the Court exacts compliance. Article 22(5) vests in the detenu the right to be provided with an opportunity to make a representation. Here the Law Reports tell a story and teach a lesson. It is that the principal enemy of the detenu and his right to make a representation is neither high-handedness nor mean-mindedness but the casual indifference, the mindless insensibility, the routine and the red tape of the bureaucratic machine.” Likewise, in Vijay Narain Singh v. State of Bihar (1984) 3 SCC 14, a 3-Judge Bench of this Court (in which A.P. Sen,J. dissented), Venkataramiah,J., speaking for the majority, reminds us: “32. …It is well settled that the law of preventive detention is a hard law and therefore it should be strictly construed. Care should be taken that the liberty of a person is not jeopardised unless his case falls squarely within the four corners of the relevant law. The law of preventive detention should not be used merely to clip the wings of an accused who is involved in a criminal prosecution. It is not intended for the purpose of keeping a man under detention when under ordinary criminal law it may not be possible to resist the issue of orders of bail, unless the material available is such as would satisfy the requirements of the legal provisions authorising such detention. When a person is enlarged on bail by a competent criminal court, great caution should be exercised in scrutinising the validity of an order of preventive detention which is based on the very same charge which is to be tried by the criminal court.” O. Chinappa Reddy,J., in a short concurring judgment also sets out the constitutional fundamentals qua preventive detention as follows: “I entirely agree with my brother Venkataramiah, J. both on the question of interpretation of the provisions of the Bihar Control of Crimes Act, 1981 and on the question of the effect of the order of grant of bail in the criminal proceeding arising out of the incident constituting one of the grounds of detention. It is really unnecessary for me to add anything to what has been said by Venkataramiah, J., .but my brother Sen, J. has taken a different view and out of respect to him, I propose to add a few lines. I am unable to agree with my brother Sen, J. on several of the views expressed by him in his dissent. In particular, I do not agree with the view that “those who are responsible for the national security or for the maintenance of public order must be the sole judges of what the national security or public order requires” It is too perilous a proposition. Our Constitution does not give a carte blanche to any organ of the State to be the sole arbiter in such matters. Preventive detention is considered so treacherous and such an anathema to civilised thought and democratic polity that safeguards against undue exercise of the power to detain without trial, have been built into the Constitution itself and incorporated as Fundamental Rights. There are two sentinels, one at either end. The Legislature is required to make the law circumscribing the limits within which persons may be preventively detained and providing for the safeguards prescribed by the Constitution and the courts are required to examine, when demanded, whether there has been any excessive detention, that is whether the limits set by the Constitution and the Legislature have been transgressed. Preventive detention is not beyond judicial scrutiny. While adequacy or sufficiency may not be a ground of challenge, relevancy and proximity are certainly grounds of challenge. Nor is it for the court to put itself in the position of the detaining authority and to satisfy itself that the untested facts reveal a path of crime. I agree with my brother Sen,, J. when he says, “It has always been the view of this Court that the detention of individuals without trials for any length of time, however short, is wholly inconsistent with the basic ideas of our Government and the gravity of the evil to the community resulting from anti-social activities can never furnish an adequate reason for invading the personal liberty of the citizen except in accordance with the procedure established by law.” 19. In Union of India v. Yumnam Anand (2007) 10 SCC 190, this Court reiterated some of these principles as follows: “8. In case of preventive detention no offence is proved, nor any charge is formulated and the justification of such detention is suspicion or reasonability and there is no criminal conviction which can only be warranted by legal evidence. Preventive justice requires an action to be taken to prevent apprehended objectionable activities. (See R. v. Halliday [1917 AC 260 : (1916-17) All ER Rep Ext 1284 : 86 LJ KB 116 : 116 LT 417 (HL)] and Kubic Darusz v. Union of India [(1990) 1 SCC 568 : 1990 SCC (Cri) 227 : AIR 1990 SC 605] .) But at the same time, a person's greatest of human freedoms i.e. personal liberty is deprived, and, therefore, the laws of preventive detention are strictly construed, and a meticulous compliance with the procedural safeguard, however technical, is mandatory. The compulsions of the primordial need to maintain order in society, without which enjoyment of all rights, including the right of personal liberty would lose all their meanings, are the true justifications for the laws of preventive detention. This jurisdiction has been described as a “jurisdiction of suspicion”, and the compulsions to preserve the values of freedom of a democratic society and social order sometimes merit the curtailment of the individual liberty. (See Ayya v. State of U.P. [(1989) 1 SCC 374 : 1989 SCC (Cri) 153 : AIR 1989 SC 364] ) To lose our country by a scrupulous adherence to the written law, said Thomas Jefferson, would be to lose the law, absurdly sacrificing the end to the means. No law is an end itself and the curtailment of liberty for reasons of State's security and national economic discipline as a necessary evil has to be administered under strict constitutional restrictions. No carte blanche is given to any organ of the State to be the sole arbiter in such matters.” 20. In Rekha v. State of Tamil Nadu, (2011) 5 SCC 244, a 3-Judge Bench of this Court spoke of the interplay between Articles 21 and 22 “13. In our opinion, Article 22(3)(b) of the Constitution of India which permits preventive detention is only an exception to Article 21 of the Constitution. An exception is an exception, and cannot ordinarily nullify the full force of the main rule, which is the right to liberty in Article 21 of the Constitution. Fundamental rights are meant for protecting the civil liberties of the people, and not to put them in jail for a long period without recourse to a lawyer and without a trial. As observed in R. v. Secy. of State for the Home Deptt., ex p Stafford [(1998) 1 WLR 503 (CA)] : (WLR p. 518 F-G) “ … The imposition of what is in effect a substantial term of imprisonment by the exercise of executive discretion, without trial, lies uneasily with ordinary concepts of the rule of law.” Article 22, hence, cannot be read in isolation but must be read as an exception to Article 21. An exception can apply only in rare and exceptional cases, and it cannot override the main rule. 14. Article 21 is the most important of the fundamental rights guaranteed by the Constitution of India. Liberty of a citizen is a most important right won by our forefathers after long, historical and arduous struggles. Our Founding Fathers realised its value because they had seen during the freedom struggle civil liberties of our countrymen being trampled upon by foreigners, and that is why they were determined that the right to individual liberty would be placed on the highest pedestal along with the right to life as the basic right of the people of India. 17. Article 22(1) of the Constitution makes it a fundamental right of a person detained to consult and be defended by a lawyer of his choice. But Article 22(3) specifically excludes the applicability of clause (1) of Article 22 to cases of preventive detention. Therefore, we must confine the power of preventive detention to very narrow limits, otherwise the great right to liberty won by our Founding Fathers, who were also freedom fighters, after long, arduous and historical struggles, will become nugatory.” This Court went on to discuss, in some detail, the conceptual nature of “29. Preventive detention is, by nature, repugnant to democratic ideas and an anathema to the rule of law. No such law exists in the USA and in England (except during war time). Since, however, Article 22(3)(b) of the Constitution of India permits preventive detention, we cannot hold it illegal but we must confine the power of preventive detention within very narrow limits, otherwise we will be taking away the great right to liberty guaranteed by Article 21 of the Constitution of India which was won after long, arduous and historic struggles. It follows, therefore, that if the ordinary law of the land (the Penal Code and other penal statutes) can deal with a situation, recourse to a preventive detention law will be illegal. 30. Whenever an order under a preventive detention law is challenged one of the questions the court must ask in deciding its legality is: was the ordinary law of the land sufficient to deal with the situation? If the answer is in the affirmative, the detention order will be illegal. In the present case, the charge against the detenu was of selling expired drugs after changing their labels. Surely the relevant provisions in the Penal Code and the Drugs and Cosmetics Act were sufficient to deal with this situation. Hence, in our opinion, for this reason also the detention order in question In an important passage, this Court then dealt with certain general observations made by the Constitution Bench in Haradhan Saha v. The State of West Bengal (1975) 3 SCC 198 as follows: “33. No doubt it has been held in the Constitution Bench decision in Haradhan Saha case [(1975) 3 SCC 198 : 1974 SCC (Cri) 816] that even if a person is liable to be tried in a criminal court for commission of a criminal offence, or is actually being so tried, that does not debar the authorities from passing a detention order under a preventive detention law. This observation, to be understood correctly, must, however, be construed in the background of the constitutional scheme in Articles 21 and 22 of the Constitution (which we have already explained). Article 22(3)(b) is only an exception to Article 21 and it is not itself a fundamental right. It is Article 21 which is central to the whole chapter on fundamental rights in our Constitution. The right to liberty means that before sending a person to prison a trial must ordinarily be held giving him an opportunity of placing his defence through his lawyer. It follows that if a person is liable to be tried, or is actually being tried, for a criminal offence, but the ordinary criminal law (the Penal Code or other penal statutes) will not be able to deal with the situation, then, and only then, can the preventive detention law be taken recourse to. 34. Hence, the observation in SCC para 34 in Haradhan Saha case [(1975) 3 SCC 198 : 1974 SCC (Cri) 816] cannot be regarded as an unqualified statement that in every case where a person is liable to be tried, or is actually being tried, for a crime in a criminal court a detention order can also be passed under a preventive detention law. 35. It must be remembered that in cases of preventive detention no offence is proved and the justification of such detention is suspicion or reasonable probability, and there is no conviction which can only be warranted by legal evidence. Preventive detention is often described as a “jurisdiction of suspicion” (vide State of Maharashtra v. Bhaurao Punjabrao Gawande [(2008) 3 SCC 613 : (2008) 2 SCC (Cri) 128] , SCC para 63). The detaining authority passes the order of detention on subjective satisfaction. Since clause (3) of Article 22 specifically excludes the applicability of clauses (1) and (2), the detenu is not entitled to a lawyer or the right to be produced before a Magistrate within 24 hours of arrest. To prevent misuse of this potentially dangerous power the law of preventive detention has to be strictly construed and meticulous compliance with the procedural safeguards, however technical, is, in our opinion, mandatory and vital. 36. It has been held that the history of liberty is the history of procedural safeguards. (See Kamleshkumar Ishwardas Patel v. Union of India [(1995) 4 SCC 51 : 1995 SCC (Cri) 643] vide para 49.) These procedural safeguards are required to be zealously watched and enforced by the court and their rigour cannot be allowed to be diluted on the basis of the nature of the alleged activities of the detenu. As observed in Rattan Singh v. State of Punjab [(1981) 4 SCC 481 : 1981 SCC (Cri) 853] : (SCC p. 483, para 4) “4. … May be that the detenu is a smuggler whose tribe (and how their numbers increase!) deserves no sympathy since its activities have paralysed the Indian economy. But the laws of preventive detention afford only a modicum of safeguards to persons detained under them, and if freedom and liberty are to have any meaning in our democratic set up, it is essential that at least those safeguards are not denied to the detenus.” 39. Personal liberty protected under Article 21 is so sacrosanct and so high in the scale of constitutional values that it is the obligation of the detaining authority to show that the impugned detention meticulously accords with the procedure established by law. The stringency and concern of judicial vigilance that is needed was aptly described in the following words in Thomas Pelham Dale case [(1881) 6 “Then comes the question upon the habeas corpus. It is a general rule, which has always been acted upon by the courts of England, that if any person procures the imprisonment of another he must take care to do so by steps, all of which are entirely regular, and that if he fails to follow every step in the process with extreme regularity the court will not allow the imprisonment to continue.”” 21. Shri Ranjit Kumar, learned senior counsel appearing on behalf of the State of Telangana relied strongly upon Subramanian v. State of Tamil Nadu (2012) 4 SCC 699, and in particular upon paragraphs 14 “14. It is well settled that the court does not interfere with the subjective satisfaction reached by the detaining authority except in exceptional and extremely limited grounds. The court cannot substitute its own opinion for that of the detaining authority when the grounds of detention are precise, pertinent, proximate and relevant, that sufficiency of grounds is not for the court but for the detaining authority for the formation of subjective satisfaction that the detention of a person with a view to preventing him from acting in any manner prejudicial to public order is required and that such satisfaction is subjective and not objective. The object of the law of preventive detention is not punitive but only preventive and further that the action of the executive in detaining a person being only precautionary, normally, the matter has necessarily to be left to the discretion of the executive authority. It is not practicable to lay down objective rules of conduct in an exhaustive manner. The satisfaction of the detaining authority, therefore, is considered to be of primary importance with certain latitude in the exercise of its discretion. 15. The next contention on behalf of the detenu, assailing the detention order on the plea that there is a difference between “law and order” and “public order” cannot also be sustained since this Court in a series of decisions recognised that public order is the even tempo of life of the community taking the country as a whole or even a specified locality. [Vide Pushpadevi M. Jatia v. M.L. paras 11 & 14; Ram Manohar Lohia v. State of Bihar [AIR of India v. Arvind Shergill [(2000) 7 SCC 601 : 2000 SCC (Cri) 1422] , SCC paras 4 & 6; Sunil Fulchand Shah v. Union of India [(2000) 3 SCC 409 : 2000 SCC (Cri) 659] , SCC para 28 (Constitution Bench); Commr. of Police v. C. paras 5, 7 & 13. ]” The statement made by this Court in paragraphs 14 and 15 were on facts which were completely different from the facts of the present case as reflected in paragraphs 16 and 17 thereof which read as “16. We have already extracted the discussion, analysis and the ultimate decision of the detaining authority with reference to the ground case dated 18-7-2011. It is clear that the detenu, armed with “aruval”, along with his associates, armed with “katta” came to the place of the complainant. The detenu abused the complainant in filthy language and threatened to murder him. His associates also threatened him. The detenu not only threatened the complainant with weapon like “aruval” but also damaged the properties available in the shop. When the complainant questioned the detenu and his associates, the detenu slapped him on his face. When the complainant raised an alarm for rescue, on the arrival of general public in and around, they were also threatened by the detenu and his associates that they will kill them. 17. It is also seen from the grounds of detention that because of the threat by the detenu and his associates by showing weapons, the nearby shopkeepers closed their shops out of fear and auto drivers took their autos from their stand and left the place. According to the detaining authority, the above scene created a panic among the public. In such circumstances, the scene created by the detenu and his associates cannot be termed as only law and order problem but it is public order as assessed by the detaining authority who is supposed to safeguard and protect the interest of public. Accordingly, we reject the contention raised by the learned Senior Counsel for the appellant.” This was obviously a case in which ‘public order’ was directly affected and not a case in which ‘law and order’ alone was affected and is thus distinguishable, on facts, from the present case. 22. In Yumman Ongbi Lembi Leima v. State of Manipur (2012) 2 SCC 176, this Court specifically adverted to when a preventive detention order would be bad, as recourse to the ordinary law would be sufficient in the facts of a given case, with particular regard being had to bail “23. Having carefully considered the submissions made on behalf of the respective parties, we are inclined to hold that the (sic exercise of) extraordinary powers of detaining an individual in contravention of the provisions of Article 22(2) of the Constitution was not warranted in the instant case, where the grounds of detention do not disclose any material which was before the detaining authority, other than the fact that there was every likelihood of Yumman Somendro being released on bail in connection with the cases in respect of which he had been arrested, to support the order of detention. 24. Article 21 of the Constitution enjoins that: “21. Protection of life and personal liberty.—No person shall be deprived of his life or personal liberty except according to procedure established by law.” In the instant case, although the power is vested with the authorities concerned, unless the same are invoked and implemented in a justifiable manner, such action of the detaining authority cannot be sustained, inasmuch as, such a detention order is an exception to the provisions of Articles 21 and 22(2) of the Constitution. 25. When the courts thought it fit to release the appellant's husband on bail in connection with the cases in respect of which he had been arrested, the mere apprehension that he was likely to be released on bail as a ground of his detention, is not justified. 27. As has been observed in various cases of similar nature by this Court, the personal liberty of an individual is the most precious and prized right guaranteed under the Constitution in Part III thereof. The State has been granted the power to curb such rights under criminal laws as also under the laws of preventive detention, which, therefore, are required to be exercised with due caution as well as upon a proper appreciation of the facts as to whether such acts are in any way prejudicial to the interest and the security of the State and its citizens, or seek to disturb public law and order, warranting the issuance of such an order. An individual incident of an offence under the Penal Code, however heinous, is insufficient to make out a case for issuance of an order of preventive detention.” This judgment was followed in Mungala Yadamma v. State of A.P. “7. Having considered the submissions made on behalf of the respective parties, we are unable to accept the submissions made on behalf of the State in view of the fact that the decision in Rekha case [(2011) 5 SCC 244 : (2011) 2 SCC (Cri) 596] , in our view, clearly covers the facts of this case as well. The offences complained of against the appellant are of a nature which can be dealt with under the ordinary law of the land. Taking recourse to the provisions of preventive detention is contrary to the constitutional guarantees enshrined in Articles 19 and 21 of the Constitution and sufficient grounds have to be made out by the detaining authorities to invoke such provisions. 8. In fact, recently, in Yumman Ongbi Lembi Leima v. State of Manipur [(2012) 2 SCC 176] we had occasion to consider the same issue and the three-Judge Bench had held that the personal liberty of an individual is the most precious and prized right guaranteed under the Constitution in Part III thereof. The State has been granted the power to curb such rights under criminal laws, as also under the laws of preventive detention, which, therefore, are required to be exercised with due caution as well as upon a proper appreciation of the facts as to whether such acts are in any way prejudicial to the interest and the security of the State and its citizens, or seek to disturb public law and order, warranting the issuance of such an order. 9. No doubt, the offences alleged to have been committed by the appellant are such as to attract punishment under the Andhra Pradesh Prohibition Act, but that in our view has to be done under the said laws and taking recourse to preventive detention laws would not be warranted. Preventive detention involves detaining of a person without trial in order to prevent him/her from committing certain types of offences. But such detention cannot be made a substitute for the ordinary law and absolve the investigating authorities of their normal functions of investigating crimes which the detenu may have committed. After all, preventive detention in most cases is for a year only and cannot be used as an instrument to keep a person in perpetual custody without trial. Accordingly, while following the three-Judge Bench decision in Rekha case [(2011) 5 SCC 244 : (2011) 2 SCC (Cri) 596] we allow the appeal and set aside the order passed by the High Court dated 20-7-2011 [ The High Court dismissed the same vide Munagala Yadamma v. State of A.P., WP (Cri) No. 13313 of 2011, order dated 20-7-2011 (AP)] and also quash the detention order dated 15-2-2011, issued by the Collector and District Magistrate, Ranga 23. Shri Gaurav Agrawal and Shri Ranjit Kumar also cited the judgments of this Court in Sama Aruna v. State of Telangana (2018) 12 SCC 150 and Collector & District Magistrate v. Sangala Kondamma (2005) 3 SCC 666 respectively. Since we are not going into other grounds raised by the Petitioner, it is unnecessary to discuss the law laid down in these judgments. 24. On the facts of this case, as has been pointed out by us, it is clear that at the highest, a possible apprehension of breach of law and order can be said to be made out if it is apprehended that the Detenu, if set free, will continue to cheat gullible persons. This may be a good ground to appeal against the bail orders granted and/or to cancel bail but certainly cannot provide the springboard to move under a preventive detention statute. We, therefore, quash the detention order on this ground. Consequently, it is unnecessary to go into any of the other grounds argued by the learned counsel on behalf of the Petitioner. The impugned judgment is set aside and the Detenu is ordered to be freed forthwith. Accordingly, the appeal is allowed.
The Supreme Court stated that simply worrying someone might break a law isn't enough to hold them without trial under special detention laws. A group of judges, led by Justice RF Nariman, explained that just breaking a law, like cheating or misusing someone's trust, affects "law and order." However, for it to affect "public order," it needs to impact many people or the community widely, not just a few individuals. The judges, including Justice Hrishikesh Roy, stated that a special order to hold someone without trial (a "Preventive Detention Order") can only be issued if that person's actions truly harm or are likely to harm the general peace of the public. They made this statement while canceling such an order given to someone under a specific law in Telangana, which deals with many types of serious offenders like drug dealers, land grabbers, and financial criminals. In this particular situation, the order to detain the person mentioned five police reports (called FIRs) filed against him. These reports were for crimes like cheating, misusing trust, and criminal intimidation under India's main criminal law (the IPC). The person had already been given bail or "anticipatory bail" (bail before being arrested) in all these cases. An "Advisory Board" then reviewed the person's side of the story and still approved his detention. His wife then appealed this decision to the High Court, but her appeal was turned down. The Court clarified that the terms "law and order," "public order," and "security of state" have different meanings. During the appeal, the court pointed out that the Telangana law defines "public order" as something that causes harm, danger, fear, or a feeling of being unsafe among many people, or a serious, widespread threat to life or public health. The judges again noted that "law and order," "public order," and "security of state" are distinct concepts. "13. The Court stated clearly that for 'public order' to be disrupted, there must actually be widespread public unrest. Simply breaking a law, like engaging in cheating or misusing someone's trust, certainly affects 'law and order.' However, for it to be considered an impact on 'public order,' it must affect the entire community or many people, not just a few individuals. 14. The Court found that the claims in the five police reports against the person were about breaking 'law and order' – specifically, various acts of cheating that are illegal under the Indian Penal Code. The Court made it clear that the reason for the detention order was not a worry of widespread public harm or danger. Instead, the real reason was simply that the person had managed to get bail or anticipatory bail from the courts in all five cases. The Court said that if someone gets bail unfairly, there are normal legal ways to fix it. The government can appeal the bail decision or ask for the bail to be canceled. Since the actual reason for holding the person was just that he got bail, the Court concluded that any claim of widespread public harm or insecurity, as mentioned in the Telangana law, was completely made up and did not apply in this case." The Court stressed that holding someone without trial (preventive detention) is only a necessary last resort to stop serious public disorder. Citing a previous case, the judges repeated that holding someone without trial is a necessary last resort, used only to prevent widespread public disorder. They then added: "17. The Court warned that taking these ideas out of their original meaning would be very risky for a person's freedom, which is protected by Article 21 of India's Constitution (the right to life and personal liberty). They explained that in the earlier case, a broader meaning of 'public order' was used because it involved checking if a law went against Article 19 of the Constitution, which deals with freedoms like speech. However, when someone is held without trial, the rules in Articles 21 and 22 (protection against arrest and detention) apply, not Article 19. Therefore, arguing for a broad definition of 'public order' in cases of detention without trial is wrong. Instead, because detention without trial is only meant to prevent major public unrest, the Court must make sure that the facts clearly and certainly show harm, danger, fear, or a sense of insecurity among a large part of the public." The judges approved the appeal and canceled the detention, stating: "The Court concluded that, at most, there was a chance the person might break 'law and order' if he continued to cheat people who are easily tricked after being released. This might be a good reason to appeal his bail decisions or to ask for his bail to be canceled. However, it is definitely not a strong enough reason to use a law that allows detention without trial. Therefore, the Court canceled the detention order based on this point. As a result, they did not need to review the other arguments made by the person's lawyer. The High Court's earlier decision was overturned, and the person was ordered to be released immediately. The appeal was approved."
0.999608
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1. These Criminal Appeals are directed against the judgment of the High Court of Madhya Pradesh at Gwalior by which the conviction of the Appellants under Sections 147, 302/149, 325/149, 324/149, 323/149 and their sentences were upheld. On the oral report given by Solal son of Girdhari (PW-10), FIR No.48 of 1995 was registered at Police Station Kumbhraj, Guna, Madhya Pradesh. The informant Solal son of Girdhari stated that Babulal Lodha son of Prabhulal Lodha and Shankarlal (PW-11) had an altercation with Shriram and others during the day time on 19.08.1995. After sunset, Shriram Sarpanch, Biram, Nathulal, Laxminarayan, Sholal son of Gopal Lodhi, Hiralal, Dhurya, Bansilal, Hazari, Parmanand, Bala Bux son of Balram, Ram Narayan Lodha armed with farsa, lathi, ballam, spear and sword attacked Shankarlal (PW-11) and Babulal Lodha. The informant along with Rodibai (PW-1), (PW-6), Bala Bux (PW-7), Panchulal (PW-8) and Kesharbai (PW-9) rushed to rescue Shankarlal (PW-11) and Babulal son of Prabhulal Lodha. Shriram, Devlal, Gyarasi, Shrilal, Kamarlal, Ramesh @ Barya, Nathulal, Sholal son of Gopal Hazari, Parmanand, Bala Bux son of Balram, Ramnarayan, Laxmi Narayan and Viram @ Virma assaulted the informant and others who reached the place of incident with farsa, spear and sword and inflicted injuries on their heads, legs, back and other parts of the body. The Appellants were charged under Section 302 and 324 IPC, alternatively under Sections 147, 302/149, 324/149, 329/149 IPC. There were a total of 21 accused apart from the two juveniles Ram Narayan and Kanhaiya Lal. 14 witnesses were examined on behalf of the prosecution. 2. On a consideration of the evidence adduced by the prosecution, the Trial Court held the accused guilty of committing offences under Section 147, 302/149 for committing murder of Babulal and under Sections 325/149, 324/149, 323/149 for voluntarily causing hurt to Rodibai (PW- (PW-6), Bala Bux (PW-7), Panchulal (PW-8) and Kesharbai (PW- 9), Solal son of Girdhari (PW-10) and Shankarlal (PW-11). The accused were sentenced to life imprisonment for the offence punishable under Section 302 read with 149 IPC, 3 years rigorous imprisonment under Section 325/149, 2 years rigorous imprisonment under section 324/149 and six months for each count under Section 323/149 IPC. The Trial Court noticed that except Shankarlal (PW-11), the other witnesses reached the place of occurrence after the accused assaulted Babulal son of Prabhulal and Shankarlal. However, the Trial Court found that the oral testimony of Shankarlal (PW-11) is creditworthy and there is sufficient corroboration from the ocular evidence of the other injured witnesses. The Trial Court observed that the inconsistencies in the testimonies of the injured eye-witnesses are trivial and their evidence cannot be rejected on that ground. According to the Trial Court, a cumulative reading of the oral testimony of the injured eye- witnesses conclusively proved that the accused inflicted a fatal injury on the head of the deceased Babulal. The injury certificates and the oral testimonies of Dr. A.D. Bhindurkar (PW-13) and Dr. Sitaram Singh (PW-15) was scrutinized by the Trial Court and the submission on behalf of the defence that there is a contradiction between the ocular testimony of the witnesses and the medical evidence was rejected. 3. The High Court dismissed the appeals filed by the Appellants by holding that there was no error committed by the Trial Court. The discrepancies in the statements made by the witnesses in Court were held to be minor in nature on the basis of which the Appellants cannot be said to be not guilty. The attack made by all the accused on the deceased Babulal and the injured witnesses has been narrated by them in one voice, though with some minor variations. 4. Daulal (A-12), Bhima (A-13), Hazari (A-14), Bala Bux son of Balram (A-15), Mool Chand (A-19) and Hira Lal (A-21) have Sholal son of Gopal Lodhi (A-11), Viram (A-18) and Shriram (A- 20) are before this Court in the above Appeals. 5. The Appellants contended that the depositions of all the witnesses is not supported by medical evidence in respect of the nature of injuries, number of injuries and the nature of weapons that were used by the accused. Reliance was placed on judgments of this Court in Amar Singh v. State of Punjab1 and Ram Narain Singh v. State of Punjab 2 to submit that the incongruity in the statements of the eye- witnesses and the medical evidence is vital and the accused are entitled for acquittal. The Appellants submitted that only Shankarlal (PW-11) was a witness to the assault on the deceased and all the other injured eye-witnesses, admittedly, arrived at the scene of occurrence, later. Therefore, their evidence cannot be relied upon by the prosecution to convict the Appellants under Section 302 read with 149 IPC. Yet another point raised on behalf of the Appellants is that the ingredients of Section 149 IPC have not been made out and the Appellants could not have been convicted with the aid of Section 149 IPC. The learned Senior Counsel appearing for the Appellant contended that, in any event, conviction under Section 302/149 is harsh and excessive and an alternate conviction under Section 326/149 may be imposed, if the Court is inclined to uphold the judgment of the High Court. 6. The case of the prosecution is that interference with the judgments of the Courts below is unwarranted in view of the abundant evidence on record. Shankarlal (PW-11) is an eye- witness to the murder of Babulal. The other injured eye- witnesses corroborated the statement of PW-11. The inconsistencies and discrepancies in the evidence of all the eye-witnesses are trivial and cannot be resorted by the Appellants to their benefit. Though there are certain inconsistencies between the oral testimony of the witnesses and medical evidence, the Appellants cannot seek reversal of the judgments of the Courts below in view of the overwhelming oral evidence on record. 7. It is well settled law that this Court does not normally re- appreciate the evidence unless the assessment of the High Court is vitiated by an error of law or procedure or is based on error of record, misreading of evidence or is inconsistent with the evidence. This Court does not enter into credibility of the evidence with a view to substitute its own opinion for that of the High Court3. Having scrutinised the record of the courts below, we are of the considered view that there is no error committed by them. The death of deceased Babulal was caused due to the attack by the Appellants. However, the submission of the Appellants that there is a contradiction in the oral testimonies and the medical evidence requires consideration. Shankarlal (PW-11) who is an injured witness stated that he has seen the accused persons beating the deceased Babulal. According to him, Shriram (A-20) gave a sword blow on the head of Babulal. Dhurilal (A-4), Ramesh (A- 3 Dalbir Kaur & Ors. v. State of Punjab, (1976) 4 SCC 158 9), Bala Bux son of Balram (A-15) and others gave farsa blow to Babulal. When confronted with the statement recorded by the Police under Section 161 Cr. P.C., the said witness submitted that he had stated to the Police about the aforementioned covert acts and he is not aware as to why this has not been mentioned in his statement. The other witnesses corroborated the statement of PW-11 and also spoke about the injuries caused to them by the Appellants. Dr. A.D. Bhindurkar (PW-13) stated that the deceased was brought to the hospital at 03:15 AM on 20.08.1995 and he found the following injuries on his person: 1. “A torn wound in Y shape measuring 8 cm x 1.2 cm x 1.5 cm located on the skin in the region of left parietal bone, which appears to have been inflicted by hard and blunt weapon. 2. A bluish mark along with abrasion measuring 1 x 0.5 cm · located towards rear side on the joint of right elbow, which appears to have been inflicted by hard and blunt weapon. 3. A bluish mark along with abrasion measuring 2 x 2 cm below left knee in the front region, which appears to have been inflicted by hard and blunt weapon. 4. A bluish mark measuring 8 x 3 cm located on left side of chest towards front, which appears to have been inflicted by hard and blunt weapon. 5. A bluish mark on multiple areas measuring 12 cm x 3 cm located on the back, which appears to have been inflicted by hard and blunt weapon.” Dr. A.D. Bhindurkar (PW-13) was of the opinion that injury No.1 was fatal and all the other injuries are simple in nature. He has also stated that the injuries were likely to have been inflicted by truncheon or luhangi. 8. Babulal son of Prabhulal Lodha succumbed to the injuries suffered by him. According to PW-13, the injuries were caused by hard and blunt weapon. Sriram (A-20) who was carrying a sword, Ramesh (A-9), Daulal @ Daulatram (A-12), and Mool Chand (A-19) were carrying farsas and Sholal son of Gopal Lodhi (A-11) was armed with a ballam. The remaining accused were having sticks in their hands. Apart from some minor aberrations in the testimony of the injured eye- witnesses, they were consistent in speaking about the weapons that were used by the accused. 9. The oral evidence discloses that there was an indiscriminate attack by the accused on the deceased and the other injured eye-witnesses. As found by the Courts below, there is a contradiction between the oral testimony of the witnesses and the medical evidence. In Amar Singh v. State of Punjab (supra), this Court examined the point relating to inconsistencies between the oral evidence and the medical opinion. The medical report submitted therein established that there were only contusions, abrasions and fractures, but there was no incised wound on the left knee of the deceased as alleged by a witness. Therefore, the evidence of the witness was found to be totally inconsistent with the medical evidence and that would be sufficient to discredit the entire prosecution case. 10. In the instant case, the fatal injury was caused by a hard and blunt weapon on the left parietal bone. There is no corresponding injury to the weapons used by Ramesh (A-9), Daulal @ Daulatram (A-12), Mool Chand (A-19) and Shriram (A-20). Therefore, the conviction of the Appellants under Section 302/149 is not justified. However, there is abundant evidence on record to show that the Appellants attacked the deceased and the injured witnesses with deadly weapons. Therefore, the Appellants are liable to be convicted under Section 326 read with 149 IPC. 11. The conviction of the Appellants under Sections 325/149, 324/149, 323/149 is confirmed. We are informed that the Appellants have undergone a sentence of four and half years. In the facts and circumstances of the case, we are of the opinion that a sentence of seven years under Section 326/149 would meet the ends of justice. 12. While upholding the judgment of the High Court regarding the conviction and sentence of the Appellants under Sections 325/149, 324/149, 323/149 and the sentence imposed for such offences, we convert the conviction under Sections 302/149 to 326/149 and sentence from life imprisonment to seven years. Needless to say, that we are not expressing any view on the validity of Section 149 IPC which question is left open. 13. The Appeals are partly allowed.
The Supreme Court changed the conviction of the people found guilty, known as the appellants. Their charge was changed from murder (Section 302/149) to seriously hurting someone with dangerous weapons (Section 326/149) under India's main criminal law. This change happened because what the witnesses said did not match the medical evidence, like doctor's reports, in the case. A group of judges, Justices L.Nageswara Rao and B.V.Nagarathna, used an earlier case called Amar Singh v State of Punjab as a guide. In that case, the Supreme Court had looked at what happens when what witnesses say doesn't match the medical reports. The judges in Amar Singh decided that such differences were enough to make the entire case against the accused unreliable. In this current case, there were also differences between what the people who saw the event said and what the medical report showed. The first court to hear the case, called the Trial Court, had said these differences were only "small" and that the evidence shouldn't be thrown out just for that reason. The High Court, which heard the case later, agreed that the differences in witness statements were minor and not enough to prove the people found guilty were innocent. The people found guilty in this case had pointed to the Amar Singh v State of Punjab case, and another one called Ram Narain Singh v State of Punjab. They argued that major differences between what eyewitnesses say and the medical evidence are very important. Because of these differences, they believed they should be found not guilty. The judgment noted, "In Amar Singh v.State of Punjab (mentioned earlier), this Court looked at the issue of differences between what witnesses said and the medical findings. The medical report in that case showed only bruises, scrapes, and broken bones. But a witness claimed there was a cut wound on the left knee of the person who died. So, what the witness said completely disagreed with the medical evidence. This was enough to make the entire case against the accused unreliable." In this current case, the judgment says that the injury that caused death, as described in the medical report, does not match the type of weapons the people found guilty supposedly used. Because of this, the Court decided that finding the appellants guilty of murder under Section 302 of the Indian Penal Code was not correct. Justice Rao's judgment stated, "In this case, the injury that caused death was made by a heavy, non-sharp weapon on a bone on the side of the head. This injury does not match the weapons used by Ramesh (identified as A-9), Daulal @ Daulatram (A-12), Mool Chand (A-19), and Shriram (A-20). Therefore, convicting these appellants of murder under Section 302/149 is not right." However, the Court also believes there is plenty of proof showing that the appellants did attack the person who died with dangerous weapons. So, it's not a case where the entire prosecution should be completely thrown out. The judgment explained: "In this case, the fatal injury was caused by a heavy, non-sharp weapon on a bone on the side of the head. This injury does not match the weapons used by Ramesh (A-9), Daulal @ Daulatram (A-12), Mool Chand (A-19), and Shriram (A-20). Therefore, the conviction of the Appellants under Section 302/149 is not justified. However, there is plenty of proof that the appellants attacked the person who died and the injured witnesses with dangerous weapons. Because of this, the appellants should be found guilty under Section 326 combined with 149 of the IPC." (Paragraph 10) Because of all these differences between witness statements and medical evidence, the Court changed the charge for the appellants from murder (Section 302/149) to seriously injuring someone with dangerous weapons (Section 326/149) under the IPC.
1. These Criminal Appeals are directed against the judgment of the High Court of Madhya Pradesh at Gwalior by which the conviction of the Appellants under Sections 147, 302/149, 325/149, 324/149, 323/149 and their sentences were upheld. On the oral report given by Solal son of Girdhari (PW-10), FIR No.48 of 1995 was registered at Police Station Kumbhraj, Guna, Madhya Pradesh. The informant Solal son of Girdhari stated that Babulal Lodha son of Prabhulal Lodha and Shankarlal (PW-11) had an altercation with Shriram and others during the day time on 19.08.1995. After sunset, Shriram Sarpanch, Biram, Nathulal, Laxminarayan, Sholal son of Gopal Lodhi, Hiralal, Dhurya, Bansilal, Hazari, Parmanand, Bala Bux son of Balram, Ram Narayan Lodha armed with farsa, lathi, ballam, spear and sword attacked Shankarlal (PW-11) and Babulal Lodha. The informant along with Rodibai (PW-1), (PW-6), Bala Bux (PW-7), Panchulal (PW-8) and Kesharbai (PW-9) rushed to rescue Shankarlal (PW-11) and Babulal son of Prabhulal Lodha. Shriram, Devlal, Gyarasi, Shrilal, Kamarlal, Ramesh @ Barya, Nathulal, Sholal son of Gopal Hazari, Parmanand, Bala Bux son of Balram, Ramnarayan, Laxmi Narayan and Viram @ Virma assaulted the informant and others who reached the place of incident with farsa, spear and sword and inflicted injuries on their heads, legs, back and other parts of the body. The Appellants were charged under Section 302 and 324 IPC, alternatively under Sections 147, 302/149, 324/149, 329/149 IPC. There were a total of 21 accused apart from the two juveniles Ram Narayan and Kanhaiya Lal. 14 witnesses were examined on behalf of the prosecution. 2. On a consideration of the evidence adduced by the prosecution, the Trial Court held the accused guilty of committing offences under Section 147, 302/149 for committing murder of Babulal and under Sections 325/149, 324/149, 323/149 for voluntarily causing hurt to Rodibai (PW- (PW-6), Bala Bux (PW-7), Panchulal (PW-8) and Kesharbai (PW- 9), Solal son of Girdhari (PW-10) and Shankarlal (PW-11). The accused were sentenced to life imprisonment for the offence punishable under Section 302 read with 149 IPC, 3 years rigorous imprisonment under Section 325/149, 2 years rigorous imprisonment under section 324/149 and six months for each count under Section 323/149 IPC. The Trial Court noticed that except Shankarlal (PW-11), the other witnesses reached the place of occurrence after the accused assaulted Babulal son of Prabhulal and Shankarlal. However, the Trial Court found that the oral testimony of Shankarlal (PW-11) is creditworthy and there is sufficient corroboration from the ocular evidence of the other injured witnesses. The Trial Court observed that the inconsistencies in the testimonies of the injured eye-witnesses are trivial and their evidence cannot be rejected on that ground. According to the Trial Court, a cumulative reading of the oral testimony of the injured eye- witnesses conclusively proved that the accused inflicted a fatal injury on the head of the deceased Babulal. The injury certificates and the oral testimonies of Dr. A.D. Bhindurkar (PW-13) and Dr. Sitaram Singh (PW-15) was scrutinized by the Trial Court and the submission on behalf of the defence that there is a contradiction between the ocular testimony of the witnesses and the medical evidence was rejected. 3. The High Court dismissed the appeals filed by the Appellants by holding that there was no error committed by the Trial Court. The discrepancies in the statements made by the witnesses in Court were held to be minor in nature on the basis of which the Appellants cannot be said to be not guilty. The attack made by all the accused on the deceased Babulal and the injured witnesses has been narrated by them in one voice, though with some minor variations. 4. Daulal (A-12), Bhima (A-13), Hazari (A-14), Bala Bux son of Balram (A-15), Mool Chand (A-19) and Hira Lal (A-21) have Sholal son of Gopal Lodhi (A-11), Viram (A-18) and Shriram (A- 20) are before this Court in the above Appeals. 5. The Appellants contended that the depositions of all the witnesses is not supported by medical evidence in respect of the nature of injuries, number of injuries and the nature of weapons that were used by the accused. Reliance was placed on judgments of this Court in Amar Singh v. State of Punjab1 and Ram Narain Singh v. State of Punjab 2 to submit that the incongruity in the statements of the eye- witnesses and the medical evidence is vital and the accused are entitled for acquittal. The Appellants submitted that only Shankarlal (PW-11) was a witness to the assault on the deceased and all the other injured eye-witnesses, admittedly, arrived at the scene of occurrence, later. Therefore, their evidence cannot be relied upon by the prosecution to convict the Appellants under Section 302 read with 149 IPC. Yet another point raised on behalf of the Appellants is that the ingredients of Section 149 IPC have not been made out and the Appellants could not have been convicted with the aid of Section 149 IPC. The learned Senior Counsel appearing for the Appellant contended that, in any event, conviction under Section 302/149 is harsh and excessive and an alternate conviction under Section 326/149 may be imposed, if the Court is inclined to uphold the judgment of the High Court. 6. The case of the prosecution is that interference with the judgments of the Courts below is unwarranted in view of the abundant evidence on record. Shankarlal (PW-11) is an eye- witness to the murder of Babulal. The other injured eye- witnesses corroborated the statement of PW-11. The inconsistencies and discrepancies in the evidence of all the eye-witnesses are trivial and cannot be resorted by the Appellants to their benefit. Though there are certain inconsistencies between the oral testimony of the witnesses and medical evidence, the Appellants cannot seek reversal of the judgments of the Courts below in view of the overwhelming oral evidence on record. 7. It is well settled law that this Court does not normally re- appreciate the evidence unless the assessment of the High Court is vitiated by an error of law or procedure or is based on error of record, misreading of evidence or is inconsistent with the evidence. This Court does not enter into credibility of the evidence with a view to substitute its own opinion for that of the High Court3. Having scrutinised the record of the courts below, we are of the considered view that there is no error committed by them. The death of deceased Babulal was caused due to the attack by the Appellants. However, the submission of the Appellants that there is a contradiction in the oral testimonies and the medical evidence requires consideration. Shankarlal (PW-11) who is an injured witness stated that he has seen the accused persons beating the deceased Babulal. According to him, Shriram (A-20) gave a sword blow on the head of Babulal. Dhurilal (A-4), Ramesh (A- 3 Dalbir Kaur & Ors. v. State of Punjab, (1976) 4 SCC 158 9), Bala Bux son of Balram (A-15) and others gave farsa blow to Babulal. When confronted with the statement recorded by the Police under Section 161 Cr. P.C., the said witness submitted that he had stated to the Police about the aforementioned covert acts and he is not aware as to why this has not been mentioned in his statement. The other witnesses corroborated the statement of PW-11 and also spoke about the injuries caused to them by the Appellants. Dr. A.D. Bhindurkar (PW-13) stated that the deceased was brought to the hospital at 03:15 AM on 20.08.1995 and he found the following injuries on his person: 1. “A torn wound in Y shape measuring 8 cm x 1.2 cm x 1.5 cm located on the skin in the region of left parietal bone, which appears to have been inflicted by hard and blunt weapon. 2. A bluish mark along with abrasion measuring 1 x 0.5 cm · located towards rear side on the joint of right elbow, which appears to have been inflicted by hard and blunt weapon. 3. A bluish mark along with abrasion measuring 2 x 2 cm below left knee in the front region, which appears to have been inflicted by hard and blunt weapon. 4. A bluish mark measuring 8 x 3 cm located on left side of chest towards front, which appears to have been inflicted by hard and blunt weapon. 5. A bluish mark on multiple areas measuring 12 cm x 3 cm located on the back, which appears to have been inflicted by hard and blunt weapon.” Dr. A.D. Bhindurkar (PW-13) was of the opinion that injury No.1 was fatal and all the other injuries are simple in nature. He has also stated that the injuries were likely to have been inflicted by truncheon or luhangi. 8. Babulal son of Prabhulal Lodha succumbed to the injuries suffered by him. According to PW-13, the injuries were caused by hard and blunt weapon. Sriram (A-20) who was carrying a sword, Ramesh (A-9), Daulal @ Daulatram (A-12), and Mool Chand (A-19) were carrying farsas and Sholal son of Gopal Lodhi (A-11) was armed with a ballam. The remaining accused were having sticks in their hands. Apart from some minor aberrations in the testimony of the injured eye- witnesses, they were consistent in speaking about the weapons that were used by the accused. 9. The oral evidence discloses that there was an indiscriminate attack by the accused on the deceased and the other injured eye-witnesses. As found by the Courts below, there is a contradiction between the oral testimony of the witnesses and the medical evidence. In Amar Singh v. State of Punjab (supra), this Court examined the point relating to inconsistencies between the oral evidence and the medical opinion. The medical report submitted therein established that there were only contusions, abrasions and fractures, but there was no incised wound on the left knee of the deceased as alleged by a witness. Therefore, the evidence of the witness was found to be totally inconsistent with the medical evidence and that would be sufficient to discredit the entire prosecution case. 10. In the instant case, the fatal injury was caused by a hard and blunt weapon on the left parietal bone. There is no corresponding injury to the weapons used by Ramesh (A-9), Daulal @ Daulatram (A-12), Mool Chand (A-19) and Shriram (A-20). Therefore, the conviction of the Appellants under Section 302/149 is not justified. However, there is abundant evidence on record to show that the Appellants attacked the deceased and the injured witnesses with deadly weapons. Therefore, the Appellants are liable to be convicted under Section 326 read with 149 IPC. 11. The conviction of the Appellants under Sections 325/149, 324/149, 323/149 is confirmed. We are informed that the Appellants have undergone a sentence of four and half years. In the facts and circumstances of the case, we are of the opinion that a sentence of seven years under Section 326/149 would meet the ends of justice. 12. While upholding the judgment of the High Court regarding the conviction and sentence of the Appellants under Sections 325/149, 324/149, 323/149 and the sentence imposed for such offences, we convert the conviction under Sections 302/149 to 326/149 and sentence from life imprisonment to seven years. Needless to say, that we are not expressing any view on the validity of Section 149 IPC which question is left open. 13. The Appeals are partly allowed.
The Supreme Court changed the conviction of the people found guilty, known as the appellants. Their charge was changed from murder (Section 302/149) to seriously hurting someone with dangerous weapons (Section 326/149) under India's main criminal law. This change happened because what the witnesses said did not match the medical evidence, like doctor's reports, in the case. A group of judges, Justices L.Nageswara Rao and B.V.Nagarathna, used an earlier case called Amar Singh v State of Punjab as a guide. In that case, the Supreme Court had looked at what happens when what witnesses say doesn't match the medical reports. The judges in Amar Singh decided that such differences were enough to make the entire case against the accused unreliable. In this current case, there were also differences between what the people who saw the event said and what the medical report showed. The first court to hear the case, called the Trial Court, had said these differences were only "small" and that the evidence shouldn't be thrown out just for that reason. The High Court, which heard the case later, agreed that the differences in witness statements were minor and not enough to prove the people found guilty were innocent. The people found guilty in this case had pointed to the Amar Singh v State of Punjab case, and another one called Ram Narain Singh v State of Punjab. They argued that major differences between what eyewitnesses say and the medical evidence are very important. Because of these differences, they believed they should be found not guilty. The judgment noted, "In Amar Singh v.State of Punjab (mentioned earlier), this Court looked at the issue of differences between what witnesses said and the medical findings. The medical report in that case showed only bruises, scrapes, and broken bones. But a witness claimed there was a cut wound on the left knee of the person who died. So, what the witness said completely disagreed with the medical evidence. This was enough to make the entire case against the accused unreliable." In this current case, the judgment says that the injury that caused death, as described in the medical report, does not match the type of weapons the people found guilty supposedly used. Because of this, the Court decided that finding the appellants guilty of murder under Section 302 of the Indian Penal Code was not correct. Justice Rao's judgment stated, "In this case, the injury that caused death was made by a heavy, non-sharp weapon on a bone on the side of the head. This injury does not match the weapons used by Ramesh (identified as A-9), Daulal @ Daulatram (A-12), Mool Chand (A-19), and Shriram (A-20). Therefore, convicting these appellants of murder under Section 302/149 is not right." However, the Court also believes there is plenty of proof showing that the appellants did attack the person who died with dangerous weapons. So, it's not a case where the entire prosecution should be completely thrown out. The judgment explained: "In this case, the fatal injury was caused by a heavy, non-sharp weapon on a bone on the side of the head. This injury does not match the weapons used by Ramesh (A-9), Daulal @ Daulatram (A-12), Mool Chand (A-19), and Shriram (A-20). Therefore, the conviction of the Appellants under Section 302/149 is not justified. However, there is plenty of proof that the appellants attacked the person who died and the injured witnesses with dangerous weapons. Because of this, the appellants should be found guilty under Section 326 combined with 149 of the IPC." (Paragraph 10) Because of all these differences between witness statements and medical evidence, the Court changed the charge for the appellants from murder (Section 302/149) to seriously injuring someone with dangerous weapons (Section 326/149) under the IPC.
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This is a Public Interest Litigation filed by an Advocate who is also claiming to be a public spirited person acting for the common cause of the society, particularly related to minorities in the State of Kerala. Petitioner is a member of Roman Catholic community, which is one of the minority communities. The grievance highlighted by the petitioner is that while most of the socio, economic and educational empowerment schemes and programmes of the Central Government are meant for the socio economically poor and downtrodden sections of the society including the six centrally notified minorities, while implementing various schemes in the State of Kerala there is marked discrimination favouring one minority against other minority communities without any rationale. 2. According to the petitioner, in order to translate the intention of the framers of the constitution and to safeguard the minority communities and to protect them from discrimination and deprivation of their rights, the Union Government had set up the National Commission for Minorities under the National Commission for Minorities Act, 1992, hereinafter called, 'Act, 1992'. It is the case of the petitioner that, as per section 20 of the said Act, minority community for the purpose of the Act means, communities notified as such by the Central Government. Therefore, according to the petitioner, six religious communities viz., Muslims, Christians, Sikhs, Buddhists, Zoroastrians (Parsis) and Jains have been notified in the gazette of India as minority communities by the Union Government. 3. It is further submitted that the functions of the National Commission in contemplation of section 9 of Act, 1992 make it clear that it should govern the overall development of the minority communities without any undue favour to any particular community. Thereafter, on 9.3.2005, a notification was issued by the Central Government for the constitution of a High Level Committee to prepare a report on the social, economic and educational status of the Muslim community of India known as “the Prime Minister's High Level Committee”, chaired by Justice Rajindar Sachar. 4. The Committee consisted of 7 members and it has submitted a report to the Prime Minister on 17.11.2006 with various recommendations and findings. The recommendations include; (1) set up an equal opportunity commission to look into the grievances of the deprived groups like minorities; (2) create a nomination procedure to increase participation of minorities in public bodies; (3) establish a determination procedure that does not reserve constituencies with high minority population for scheduled castes; (4) increase employment share of Muslims, particularly where there is great deal of public dealing. Work out mechanisms to link Madrasas with Higher Secondary School Board; and (5) recognise degrees from Madrasas for eligibility in defence, civil and banking examinations. 5. Anyhow, in 2006, the Union Government under the Prime Minister's New 15 point programmes for the welfare of minorities announced scholarship schemes for minority students from minority communities. On the basis of the scheme formulated, the Union Government is providing scholarships to students belonging to minority communities to promote pre-matric and post-metric financial assistance. Scholarships are also given on merit cum means basis. According to the petitioner, nowhere it is stated that scholarships shall be provided to any particular minority community in preference to other minority communities. 6. Therefore, the legal contention advanced by the petitioner is that the scheme formulated by the Union Government is in accordance with the constitutional principles as well as the provisions of Act, 1992 and the Kerala State Commission for Minorities Act, 2014. Exhibit P1 produced by the petitioner is a scheme published by the Union Government for the years 2017-2020 for pre-matric scholarship for students belonging to minority communities. It seems similar schemes are formulated in regard to post-matric students as well as on the basis of merit cum means. The sum and substance of the contention is that a perusal of Exhibit P1 would clearly show that the criteria is “minority status” as a whole and not individual religions forming part of minority communities. 7. Anyhow the State Government has formed a 11 member committee for submitting proposals necessary for implementing the recommendations of Justice Rajindar Sachar Commission report in Kerala, headed by Paloly Muhammed Kutty, the then Minister for Local Self Government. The said committee also submitted a report on 21.2.2008 after considering various proposals and representations. As part of implementing the said report, the State Government established a minority cell and thereafter, various orders have been issued as part of implementing the report. One of the orders issued on 16.8.2008 by the State Government is Exhibit P2. As per Exhibit P2, it is clear that the Government approved the report of the Pololy Muhammed Kutty Committee and a Minority Cell was started in the Secretariat. Accordingly, 5000 scholarships have been set apart for degree and post graduate professional courses for Muslim women per year and 14 posts of clerks have been created in 14 districts. An amount of Rs.10 Crores was set apart for the implementation of the above scholarships. Thereafter, 1st respondent extended the benefit given in Exhibit P2 to Latin Catholics and other Converted Christians as per Exhibit P3 Government Order dated 22.2.2011 bearing G.O.(Rt.)No.57/2011/GAD. In Exhibit P3 it is only stated that the benefits given to the Muslim students in regard to the scholarships and hostel stipend shall also be given to Latin Catholic Christians and Converted Christian students. 8. The predominant contention advanced by the petitioner in that regard is that, contrary to what is stated in Exhibit P3, without any rationale, the State Government issued Exhibit P4 order bearing G.O.(Rt.)No.3427/2015/GAD dated 8.5.2015 that reservation among the Muslims and other minority communities will be in the ratio of 80:20 i.e., 80% to Muslim Community and 20% to Latin Christians and Converted Christians. It is further stated that 30% of the seats shall be reserved for girls. Therefore, it is contended that the fixation of ratio in Exhibit P4 is arbitrary, unjust and illegal and accordingly violative of Articles 14 and 15 of the Constitution of India. It is to be noted that the State Government passed the Kerala State Commission for Minorities Act, 2014 with an intention to constitute a State Commission for the comprehensive educational advancement, welfare, protection and empowerment of minorities in the State of Kerala and to provide for matters connected therewith or incidental thereto, which Act has come into force w.e.f. 15.05.2013. 9. Minorities is defined under section 2(d) of the Act to mean, “ a community notified by the Central Government under the Act, 1992”. Section 9 of the Act, 2014 deals with the functions of the Commission, the details of the same would be discussed hereafter. It is further contended by the petitioner that as per the 2011 census, in the State of Kerala 54.73% are Hindus, 26.56% are Muslims and 18.38% Christians and rest of the religious minorities are 0.33%. Thus, the total population of the minority communities in Kerala is 45.27% and out of which, 58.67% is Muslims and 40.6% is Christians and 0.73% constituted other minority communities. However, studies conducted by the Vital Statistics Division, Department of Economics and Statistics, Government of Kerala, regarding the percentage of birth analysis for the year 2017 shows that there are 14.96% Christians, 43% Muslims and 41.70% Hindus, and there is a drastic decrease of the Christian population. Consequent to the said development, complaints have been submitted before the Kerala State Commission for Minorities – the 2nd respondent and Exhibit P5 memorandum was submitted by the Catholics Bishops Conference of India Council for Laity regarding the sufferings of Christian Minority in India. Likewise, other memorandums were also submitted but according to the petitioner, the discrimination of granting largesse to one section of the minority community is still continuing without any legal backing and in total disregard to the available data on the subject. To highlight the same, petitioner has produced Exhibit P7 information dated 14.10.2009 issued by the Public Information Officer under the State Government, wherein it is stated that the ratio of 80:20 is continued in the light of Exhibit P3 order dated 22.2.2011, and the case of the petitioner is that, the said ratio has no basis and formulated without conducting any study. Therefore, according to the petitioner, it is clear that under the cover of minority rights, the respondents are supporting a particular section. 10. Matters being so, petitioner has submitted Exhibit P8 representation before the State Government on 3.10.2020 with copy to the 2 nd and 3rd respondents viz., State Minority Commission as well as the Union of India. Therefore, the grievance highlighted by the petitioner is that, in spite of the earnest efforts made by the other minority community in the State viz., Christians, the same is not attended to by the State or the Minority Commission, which persuaded the petitioner to file this writ petition. 11. The State Government have filed a counter affidavit stating that the Paloli Committee relied on statistics from Justice Sachar Committee report and Kerala Padana report for finalizing its report, which reveals Muslims are far behind Christian in the college enrolment (and even behind scheduled castes and scheduled tribes) i.e. 8.1% for Muslims and 28.1, 20.5,16.7,11.8 and 10.3 for forward Hindus, Christians, backward Hindus, Scheduled Tribes and Scheduled Castes respectively. It is also stated that the unemployment percentage is 55.2 among Muslims, while it is 31.9 among Christians and 40.2 among backward Hindus. With regard to land ownership, there are only 3% Christians is landless while it is 37.8% among Muslims. In the matter of poverty also, there is a wide gap between Muslims and Christians. The reality is that the Muslims in Kerala stand far behind than the other communities in the social economic and educational fields and the standard of education of the Kerala Muslims stands too low to that of Christians. Hence, the issue is that Muslims in Kerala are ‘in toto’ a backward community and included in OBC category by the State Government while in other religious minorities including Christians, the Roman Catholics and some other sects among Christians are not backward communities in toto. Besides, the Sachar committee report clearly emphasized on the backwardness of Muslims in the education field and the necessity of their upliftment and improving their educational conditions. Hence, based on the Committee report, the Government took affirmative action like granting of separate scholarships schemes for the development of backward Muslim 12. It is further stated that the Petitioner himself has quoted in the writ petition the main recommendations of the Prime Minister's High level committee, chaired by Justice Rajindar Sachar, in which it is clearly stated to increase employment share of Muslims particularly where there is great deal of public dealing and work out mechanism to link Madrasas with higher secondary school board and even to recognize degree from Madrasas for eligibility in defence, civil and banking examinations. According to the 1 st respondent, it is a well known fact that, if there is no opportunity for education and training, there will be no chance for employment. In addition to that, there is a positive correlation between education and employment and more higher education means a chance for more employment. In order to increase the chance of employment, the Government should increase accessibility to education. Hence, the Government gave due consideration to weaker and under privileged groups of religious minorities while envisaging its programmes, as in the case of Scheduled Castes and Scheduled Tribes. 13. It is stated that the Justice Sachar Committee was constituted only to study and report the status of Muslims and it is to safeguard the spirit of Sachar Committee, the Government are implementing special programmes and packages for the most weakest sections of the Minority communities from Muslims, Latin and Converted Christians and SC/ST from the Hindu communities. At the same time, if there are any other underprivileged and unrepresented groups, they also to be considered, and included. On the other hand, if there is any ineligible among the group of Muslims, Christians or others, they should be eliminated and that portion too should be distributed among other eligible groups. 14. It is also stated that the Central Government and State Governments have their own policy to implement the programmes and Projects using the respective funds. The pre-metric, post-matric and merit-cum means scholarships under Exhibit P1 Scheme are distributed directly by the Central Government and the State Government is only the Nodal agency. The State Government is providing about 13 Vidhya Samunnathi Scholarships/programmes to forward caste students through Kerala State Welfare Corporation for forward Communities, which is not available in Central Government Schemes. The State Government have different schemes to meet different requirements. Just like Minority Scholarship for Muslims, the State Government spends nearly Rs.9,33,92,000/- per annum for payment of Scholarships for forward caste students including Christians. Further, financial aid is provided for undertaking coaching for competitive examinations to forward caste students including Christians, evident from Exhibit R1(b). 15. It is further stated that the State Government is free to implement such scholarships or other educational supports as per the need of the hour. According to the 1st respondent, the 80:20 ratio, evidently based on the rough population ratio of respective communities, is neither arbitrary nor unjust or illegal and this action does not violate Articles 14 and 15 as contended and the accessibility to education for the weakest sections of the community is the prime objective of the Prime Minister's 15 Point Programme. 16. Additional 4th respondent viz., an organisation called Minority Indians Planning and Vigilance Commission Trust, has also filed an affidavit justifying the stand adopted by the State Government in Exhibit P3 order fixing 80:20 ratio by and between the Muslims and the Latin Catholic Christians and other Converted Christians. The Union of India have filed a statement contenting as "2. The Pre-Matric Scholarship Scheme for students of the Minority Communities was initially approved on 30 th January, 2008. It is a Central Sector Scheme with 100% Central Government funding. The students studying in India in a government/ recognised private school, in Class I to X, who secure 50% marks in the previous examination and whose parents / guardians' annual income does not exceed Rs.1 lakh, are eligible for award of the Pre-Matric scholarship under the scheme. Under the scheme, 30 lakh fresh scholarships are awarded every year in addition to the renewals. 30% of the scholarships are earmarked for girl students. Scholarship ranging from Rs. 1,000/- to Rs. 10,700/- is awarded to every selected student. 3. The Post Matric Scholarship Scheme was launched in November, 2007. It is a Central Sector Scheme. Post Matric Scholarship is awarded for studies in a Government/recognized private higher secondary schools/colleges/Universities including residential higher secondary schools/colleges of India. 4. Students who secure 50% marks in the previous year's final examination and whose parents'/ guardians' annual income does not exceed Rs. 2.00 lakh are eligible for award of scholarship under the Post Matric Scholarship scheme. Five lakhs Fresh scholarships are awarded every year in addition to the renewals. 30% of scholarships are earmarked for girl students. In case sufficient numbers of girl students are not available, then eligible boy students are given these scholarships. Scholarship ranging from Rs. 2,300/- to Rs. 15,000/- is awarded to every selected student. The details related to rate of Scholarship are given below: 1 Admission fee from class VI to Rs.500/- per Rs.500/- per 2 Tuition fee from class VI to X Rs.350/- per month Rs.350/- per (ii) Class VI to X Rs.600/- per month Rs.100/- per month 1 Admission and tuition fee from Actual subject to a Actual subject to a 2 Admission and course/tuition Actual subject to a Actual subject to fee for technical and vocational maximum ceiling of a maximum ceiling courses of XI and XII level Rs.10,000 per of Rs.10,000 per 3 Admission and tuition fee for Actual subject to a Actual subject to a under graduate, post graduate maximum ceiling of maximum ceiling study material, etc.) Rs.380 per month Rs.230 per month (ii) Courses other than technical Rs.570 per month Rs.300 per month graduate level. (iii) M.Phil and Ph.D (For those Rs.1200 per month Rs.550 per month 5. It is respectfully submitted that, to improve transparency in the implementation of the scholarship schemes, a new and revamped version of National Scholarship Portal (NSP) has been launched by the Government during 2015-16 for various Ministries of Government of India including Ministry of Minority Affairs. All the above Scholarship Schemes of this Ministry are implemented through this portal. The scholarships are transferred into the bank accounts of students through Direct Benefit Transfer (DBT) mode. The details of Community-wise scholarships sanctioned under Pre-Matric and Post Matric Scholarship Schemes for Minorities in respect of Kerala State for the last six years, 2014-20, are produced as Annexure R3 (a). 6. As per the Scheme guidelines, a total of thirty (30) lakh scholarships and five lakh scholarships are targeted to be distributed as Fresh' Scholarships under Pre-Matric and Post Matric Scholarship Schemes respectively. These are besides Renewal scholarships. The distribution of scholarship among the States/Union Territories, under Fresh category, including Kerala, are made on the basis of community-wise population of minorities in the States/Union Territories as per Census 2001 (for 2014-15 to 2017-18) and as per the population of minorities in the States/Union Territories of Census 2011 (for 2018-19 and 2019-20).Thus, it is stated that there is an annual community-wise target for Kerala under each of the schemes. However, under some communities, the number of sanctioned scholarships is less due to non-availability of sufficient eligible applicants, while under some communities it is more due to re-allocation of unfilled quota from other States/communities by the Ministry of Minority Affairs. 7. It is further stated that the 3 rd Respondent (Ministry of Minority Affairs) has enacted the National Commission for Minority Act, 1992 to ensure the safeguards to six notified minority communities viz. Buddhist, Christian, Jain, Muslim, Parsi and Sikh and also to protect them from discrimination and from the deprivation of their rights. Admittedly, Christians and other religious minorities are similarly situated and the statutory functions of the Commission do not provide for any undue favour to any particular minority community.” 17. We have heard Senior Adv. Sri.Raju Joseph, assisted by Adv. Julian Xavier for the petitioner, Assistant Solicitor General of India Sri.P.Vijayakumar for the Union of India and O.A.Nuriya for the additional 4 th respondent and perused the pleadings and materials on record. 18. In the backdrop of the above contentions petitioner seeks to quash Exhibits P2 to P4 orders issued by the State Government dated 16.8.2008, 22.2.2011 and 8.5.2015. In Exhibit P2, the General Administration Department (Minority Cell) states that on the basis of the study conducted by Paloly Muhammed Kutty Committee regarding the implementation of Justice Rajindar Sachar Commission report in Kerala, a minority cell formed and started functioning in the Secretariat. Paragraph 4 thereto states that 5000 scholarships of Rs.3,000/-, Rs.4,000/- and Rs.5,000/- each per year will be allotted to Muslim girl students, who are undergoing degree, Post-graduate professional courses on merit-cum-means basis, which would be executed by the Department of Collegiate Education, and paragraph 6 specifies that a clerk post each in 14 districts will be created under the Deputy Collector (General) for the purpose and an amount of Rs.10 Crores is set apart for Minority Welfare Programme as allotted in the supplementary request made in July 2008 budget. 19. Exhibit P3 order specifies that on the basis of the report of the committee specified above, Government have considered the matter elaborately and have decided to give scholarships and hostel stipends to Latin Catholics and Converted Christians as given to Muslim girl students. It further denotes that criteria for getting scholarship and hostel stipends for Muslim girl students will be applicable to the above category as well. However, it is significant to note in the said order that the Latin Catholics and Converted Christian girl students are only permitted to get 20% of the total number of scholarships/hostel stipends, which are given to Muslim girl students and further that, the number of scholarships/hostel stipends, which are given to Muslim girl students will continue as Rs.5000/- and Rs.2000/- respectively. Exhibit P4 Government order is in regard to scholarship scheme for minority students pursuing courses such as Chartered Accountancy (C.A) and Works Accountancy (I.C.W.A) and Company Secretaryship, wherein after specifying the nature of the scheme it is categorically stated that the selection will be based on merit and income basis having 60% marks in B.Com/other graduation and students having annual income below Rs.6 lakhs are eligible for scholarship and preference will be given to BPL candidates. The crucial aspect therein is that the reservation among Muslims and other minority communities is in the ratio 80:20 and 30% of seats will be reserved for girl students. Thus, altogether an amount of Rs.1,80,00,000/- is provided towards scholarship 1) to the students undergoing coaching for intermediate 2) to the students undergoing coaching for final and 3) foundation course, at the rate of Rs.12,000/-, Rs.12,000/- and Rs.6,000/- distributed among 500, 500 and 1000 students respectively. 20. It was in the said background that the Catholic Bishops Conference of India and the petitioner submitted Exhibits P5 and P8 representations respectively. These are the basic background facts available before us to decide the issues raised by the petitioner in regard to the distribution of the merit cum means scholarship to the students belonging to the minority communities. Basically the rights available to minority communities stems out from Article 29 of the Constitution of India dealing with protection of interest of minorities. Clause 1 thereto clearly specifies that any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same and clause 2 thereunder specifies that no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them. Article 30 of the Constitution deals with the right of minorities to establish and administer educational institutions . 21. A conjoint reading of Articles 29 and 30 makes it clear that while granting any aid by the State to educational institutions the State shall not discriminate against any educational institution on the ground that it is under the management of a minority whether based on religion or language, which in fact clearly translates the true intention of the framers of the Constitution of 22. Viewed in that background we are proceeding to understand the provisions of the National Commission for Minorities Act, 1992. The statements of objects and reasons of Act, 1992 states that the Minorities Commission was set up in January, 1978 for providing an institutional arrangement for evaluating the safeguards provided in the constitution for the protection of the minorities and to make recommendations for ensuring implementation of the safeguards and the laws. It was also found that the Minorities Commission with statutory status would infuse confidence among the minorities about the working and the effectiveness of the Commission and it would also carry more weight with the State Governments/Union Territory Administrations and the Ministries/Departments and the other organisations of the Central Government. That is how the Commission was constituted consisting of a Chairperson and six members. 23. The main task shouldered on the Commission shall be to evaluate the progress of the development of minorities, monitor the working of the safeguards provided in the constitution for the protection of the interests of minorities and in laws enacted by the Central Government besides looking into the specific complaints regarding deprivation of rights and safeguards of the minorities. It shall also cause studies, research and analysis to be undertaken on the issues relating to socio economic and educational development of the minorities and make recommendations for the effective implementation of the safeguards for the protection of interests of minorities by the Central Government or State Governments. Section 9 of the Act, 1992 deals with the "9. Functions of the Commission.-(1) The Commission shall perform all or (a) evaluate the progress of the development of minorities under the Union (b) monitor the working of the safeguards provided in the Constitution and in laws enacted by Parliament and the State Legislatures; (c) make recommendations for the effective implementation of safeguards for the protection of the interests of minorities by the Central Government or the (d) look into specific complaints regarding deprivation of rights and safeguards of the minorities and take up such matters with the appropriate (e) cause studies to be undertaken into problems arising out of any discrimination against minorities and recommend measures for their removal; (f) conduct studies, research and analysis on the issues relating to socio- economic and educational development of minorities; (g) suggest appropriate measures in respect of any minority to be undertaken (h) make periodical or special reports to the Central Government on any matter pertaining to minorities and in particular difficulties confronted by (i) any other matter which may be referred to it by the Central Government. (2) The Central Government shall cause the recommendations referred to in clause (c) of sub-section (1) to be laid before each House of Parliament along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the Union and the reasons for the non- acceptance, if any, of any of such recommendations. (3) Where any recommendation referred to in clause (c) of sub-section (1) or any part thereof with which any State Government is concerned, the Commission shall forward a copy of such recommendation or part to such State Government who shall cause it to be laid before the Legislature of the State along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the State and the reasons for the non-acceptance, if any, of any of such recommendation or part. (4) The Commission shall, while performing any of the functions mentioned in sub-clauses (a), (b) and (d) of sub-section (1), have all the powers of a civil court trying a suit and in particular, in respect of the following matters, (a) summoning and enforcing the attendance of any person from any part of (b) requiring the discovery and production of any document; (d) requisitioning any public record or copy thereof from any court or (e) issuing commissions for the examination of witnesses and documents; (f) any other matter may be prescribed.” 24. Section 10 makes it clear that the Central Government shall after due appropriation made by Parliament by law in that behalf pay to the Commission by way of grants such sums of money as the Central Government may think fit for being utilised for the purposes of the Act. It is significant to note that section 2(c) defines 'minority' for the purposes of the Act to mean a community notified as such by the Central Government. It is undisputed that the Central Government has notified six religious communities viz., Muslims, Christians, Sikhs, Buddhists, Zoroastrians (Parsis) and Jains, in the gazette of India. 25. Therefore, on a reading of section 9 and section 2(c) along with the notification so issued, it can be clearly seen that the functions of the Commission should govern the overall development of the minority communities as such without discriminating by and between the minority communities so identified. The Kerala State Commission for Minorities Act, 2014 was introduced with the intention to constitute a State Commission for the comprehensive educational advancement, welfare, protection and empowerment of minorities in the State of Kerala and to provide for matters connected therewith or incidental thereto, which has come into force on and w.e.f. 15.5.2013. Section 2(d) thereto defines 'minority' to mean, a community notified by the Central Government under the National Commission for Minorities Act, 1992. Section 9 of the Act deals comprehensively with the functions of the Commission which "9.Functions of the Commission.- The Commission shall perform the following (a) to evaluate the progress of the development of minorities in the State; (b) to enquire and monitor the manner of functioning of various safeguards provided in the Constitution of India or under any other law or under any order of the Government, for the welfare, protection and empowerment of the minorities in (c) to enquire into specific complaints about deprivation of social, economic,educational and linguistic rights, safeguards and benefits of the minorities, to bring such matters into the notice of authorities concerned, to suggest remedial measures and to monitor the follow-up actions thereon; (d) to participate in and give creative suggestions on, the planning programmes for the educational, social and economic development of the minorities: (e) to make recommendations as to the steps to be taken by the Government for the effective implementation of the measures and safeguards for the educational, social and economic development, welfare and protection of the minorities and to make report to the Government either annually or at such other time, as the Commission may deem fit and to monitor their timely implementation; (f) to cause studies to be undertaken into various problems arising out of discrimination towards minorities and recommend measures for their removal (g) to conduct studies, research and analysis and to organize seminars, symposium and awareness classes on the issues relating to social, economic and educational (h) to suggest appropriate measures to be adopted by the Government in respect of (i) to submit report to the Government periodically or specially, on any matter pertaining to minorities, particularly in respect of difficulties being faced by them and (j) to discharge such other functions in relation to the protection, welfare, development and advancement of the minorities, as may be prescribed: (k) to take necessary steps to ensure the representation of minorities proportionate to their population in various employment projects and (l) to ensure the efficient functioning of the law and order system in communal conflict prone areas and to bring lapses to the notice of the (m) any other matter pertaining to minorities, entrusted by the Government". 26. Therefore, the intention of constituting the National and State Commission is clear, to protect the interests of the minorities notified by the Union Government by taking into account various aspects including educational, social and economic development of the minorities as such and not any particular minority. Which thus means, the National Commission and the State Commission are not entitled to segregate such backwardness among the minorities so as to protect the interests of any particular minority. It is clear from 2011 census that total population of minority communities in Kerala is 45.27% out of which 58.67% is Muslims and 40.6% is Christians and the balance 0.73% constituted other minority communities. 27. On an analysis of section 9 of Act, 1992 what we could gather is that the Commission itself was constituted to evaluate the progress of the development of minorities under the Union and States taking into account the constitutional safeguards and the laws enacted by Parliament and the State Legislatures and accordingly make recommendations for the effective implementation for the protection of the interests of minorities by the Union Government and the State Governments. Further, the said Commission has got a duty to look into any specific complaints regarding deprivation of rights and safeguards of the minorities and is also obliged under law to take up such matters with the appropriate authorities. 28. Here is a case where the Christian Minority community had made representations before the State Government and State Minority Commission regarding the discrimination meted out to the said community in the matter of award of merit-cum-means scholarship, but no action was initiated. Likewise, section 13 of the State Commission for Minorities Act, 2014, encompasses a duty on the commission to look after the welfare of the minority communities within the State without any discrimination. However, the orders passed by the State Government viz., Exhibits P2, P3 and P4 show that clear discrimination is shown by favouring a particular minority community by providing scholarships in the ratio of 80:20 i.e., 80% to Muslims and 20% to the Latin Catholic Christians and Converted Christians, which is not the letter and spirit of the provisions of the Act, 1992 and the Act, 2014, formation of which is mandated by virtue of the Constitutional guarantee extended to the minority communities. Moreover, the mandates contained under Articles 14 and 15 of the Constitution of India are clearly violated by the State Government in the matter of the award of scholarships. It is also equally important to note that the Act, 1992 and the Act, 2014 envisions the Commission to treat the minority communities as a whole, and if at all the development of weaker sections among each of the minority communities is required, the Commission is to take into account the requirements of such weaker sections in each of the communities and divide the merit-cum-means scholarship equally by and between the members of the minority communities. However, in utter violation of the constitutional mandates contained under Articles 14, 15, 29 and 30, the State Government has issued the impugned orders. 29. Article 14 clearly mandates that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India, whereas Article 15 (1) specifies that the State shall not discriminate against any citizen on grounds only on religion, race, caste, sex, place of birth or any of them, but at the same time we are concious of the fact that the provisions of Article 15 would not stand in the way of the State from making any provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes in so far as such special provisions relate to admission of such classes of citizens to educational institutions including private educational institutions by virtue of Clauses (4) and (5) thereto, irrespective of the provisions of Articles 29 and 30 of the Constitution dealing with minorities. 30. It is also clear from clause (6) of Article 15 that nothing in the said Article or sub-clause (g) of clause 1 of Article 19 or clause (2) of Article 29 would stand in the way of the State from making, a) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5) ; and b) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and 5 in so far as such special provisions relate to their admission to educational institutions including private educational institutions whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30 etc. 31. On a reading together of Articles 14 and 15, it is clear that the State is endowed with a duty coupled with an obligation to look after the welfare and well being of the socially, educationally and economically weaker sections of citizens irrespective of the special provisions dealing with minorities. Therefore there is nothing wrong in the State Government providing facilities to weaker sections of the community, but when it comes to dealing with the notified minorities, it has to treat them equally, and it is not vested with any powers to treat them unequally, which is quite discernible from the provisions of the Constitution and the laws discussed above. 32. But here is a case where without taking into account the entitlement of the Christian Minority community within the State available from the population ratio, State is indulging in providing scholarship to the Muslim minority community at 80%, which according to us, is an unconstitutional act and unsupported by any law. Mere executive orders issued by the State Government cannot overreach the provisions of the Minority Commissions Acts, 1992 and 2014, and the imperatives contained under the provisions of the Constitution of India discussed above. Article 29 also casts a duty to protect the educational interests of the minority community in equal measure and not in a discriminatory manner. 33. A five member Constitutional Bench of the Apex Court in Chinnaiah v. State of A.P. [(2005)1 SCC 394] had occasion to consider the issue with respect to sub-classification among the Scheduled Castes and Scheduled Tribes and held that except for a limited power of making an exclusion or inclusion in the list by an act of Parliament, there is no provision either to sub-divide, sub- classify or sub-group the castes which are found in the presidential list of Scheduled Castes. In our considered view, the Union Government in contemplation of section 2(c) of the Act, 1992 has notified six communities as minority communities in India which includes Muslims and Christians and therefore, the principles contained in the judgment in Chinnaiah supra would squarely apply to the facts and circumstances to the case at hand. 34. True, taking into account various constitutional provisions and the aspects thereto, the judgment in Chinnaiah supra is referred to a Larger Bench of Seven Judges or more in the order in State of Punjab and Others v. Davinder Singh and Others [(2020)8 SCC 1]. Anyhow, as of now, the proposition of law guiding the field is the judgment in Chinnaiah, the constitutional provisions, and the provisions of the Act, 1992 and Act, 2014. That apart in Davinder singh (supra), the Apex Court expressed its opinion that the State Government has an obligation to undertake the emancipation of the deprived section of the community and eradicate inequalities and for that purpose it can make sub-classification within reserved castes within the SC and ST and adopt distributive justice method to redistribute and reallocate resources and opportunities to fulfil the very purpose of the Constitutional mandate of equal justice to all. 35. Therefore, even if the findings rendered in the reference order for revisiting the findings in Chinnaiah (supra) by a Larger Bench is taken into account, the sub- division envisaged can only be within minority communities and not by taking the weakness of a particular minority community alone. In our view, in order to protect the interest of the notified minority communities as such, adoption of such a course is the only alternative and not otherwise as is done by the State Government . 36. Therefore, deducing the facts, circumstances and the laws, we are of the considered opinion that the action of the State Government in sub- classifying the minorities by providing merit-cum-means scholarship at 80% to Muslim community and 20% to the Latin Catholic Christians and Converted Christians cannot be legally sustained. In that view of the matter, we quash Exhibits P2, P3 and P4 orders of the State Government deliberated above in detail, and hereby direct the Kerala State Government to pass requisite and appropriate Government orders providing merit-cum-means scholarship to the members of the notified minority communities within the State equally and in accordance with the latest population census available with the State Minority Upshot of the above discussion is that the writ petition is allowed to the extent specified above.
The Court said the Kerala government couldn't legally divide minority groups by giving 80% of scholarships to Muslims and 20% to Latin Catholics and converted Christians. The Kerala High Court on Friday cancelled the Kerala Government's orders that set this 80:20 split for scholarships. Justice Shaji P Chaly, speaking for the judges, stated that these orders were not fair or legal. He ordered the state to give scholarships, based on good grades and financial need, to all recognized minority groups equally. The Kerala High Court on Friday cancelled the Kerala Government's plans to give scholarships to Muslim students and Latin Catholic or converted Christians in an 80:20 ratio. Justice Shaji P Chaly, speaking for himself and Chief Justice Manikumar, declared that these orders could not legally stand. He directed the State to provide scholarships, based on good grades and financial need, to members of all recognized minority communities equally. The main part of the court's decision stated, "We hereby order the State Government to create necessary and proper government rules. These rules must provide scholarships, based on good grades and financial need, equally to all recognized minority communities within the state. This should be done based on the most recent population count available with the State Minority Commission." With this decision, the Court approved a formal request, called a petition, filed by lawyer Justine Pallivathukal. The petition claimed that the State Government was unfairly favoring the Muslim community over other minority groups in the state. **Facts and submissions** The main disagreement was about a scholarship program the State Government started for students from minority groups. The program was announced following ideas proposed by an 11-member committee. This committee had been tasked with putting into action the suggestions of the Justice Rajinder Sachar committee in Kerala. The Sachar Committee was a high-level group set up to report on the social, financial, and educational situation of the Muslim community in India. As part of the scholarship program, the State Government offered 5000 scholarships for Muslim women studying for college degrees or higher. In February 2011, students from Latin Catholic and converted Christian groups also became eligible for these scholarships. Then, in a government rule from 2015, it was decided that the scholarships would be divided 80:20. This meant 80% for Muslims and 20% for Latin Catholic Christians and other minority groups. In his petition, the lawyer compared the state's plan to a national scholarship program from 2006. This national program also gave scholarships based on good grades and financial need to students from minority communities. The petitioner argued that the national program never stated that scholarships were given to any particular minority community more than others. The petition also stated, "The State of Kerala, while pretending to promote minority communities, is showing unfair favor to the Muslim community. This harms other minority communities. For Christian communities, other than Latin Catholic and converted Christians, no benefit is given to the rest of the group. This causes complete discrimination." Based on these claims, the lawyer asked the court to fix this unfair treatment and have the scholarships given out equally to all minority communities. As another option, the lawyer asked for scholarships to be divided according to the proportion of people in each minority community. The State argued, using reports from the Sachar Committee and the Kerala Padana Report, that Muslims were falling behind Christians in college attendance. It was stated that only 3% of Christians owned no land, while 37.8% of Muslims were landless. The State claimed that Muslims in Kerala as a whole are a disadvantaged community. However, within other religious minorities like Christians, groups such as Roman Catholics and some other Christian groups were not considered disadvantaged. **The Court's Decision** Among other topics discussed, the Court decided that it is fine for the State Government to provide help to weaker parts of the community. However, when it deals with recognized minority groups, "it must treat them equally." The court's decision stated that the government did not have the power to treat these groups differently. The Court stated, "However, in this case, the State is giving 80% of scholarships to the Muslim minority community. It does this without considering what the Christian Minority community within the State deserves based on its population size. We believe this action is against the Constitution and not supported by any law. Simple orders from the State Government cannot overrule the rules in the Minority Commissions Acts of 1992 and 2014. They also cannot go against the important rules in the Indian Constitution that we discussed. Article 29 also requires the state to protect the educational interests of all minority communities equally, without showing favoritism." The Court called this way of dividing scholarships, like a fixed proportion, a "sub-classification." The Court said, "Therefore, after looking at all the facts, situations, and laws, we believe the State Government's action is not legal. It cannot divide minority groups by giving 80% of scholarships, based on good grades and financial need, to the Muslim community and 20% to Latin Catholic Christians and converted Christians." Asking the state to give scholarships, based on good grades and financial need, equally to all recognized minorities, the lawyer's request was approved. **CASE:** Justine Pallivathukal v. State of Kerala and Others.
This is a Public Interest Litigation filed by an Advocate who is also claiming to be a public spirited person acting for the common cause of the society, particularly related to minorities in the State of Kerala. Petitioner is a member of Roman Catholic community, which is one of the minority communities. The grievance highlighted by the petitioner is that while most of the socio, economic and educational empowerment schemes and programmes of the Central Government are meant for the socio economically poor and downtrodden sections of the society including the six centrally notified minorities, while implementing various schemes in the State of Kerala there is marked discrimination favouring one minority against other minority communities without any rationale. 2. According to the petitioner, in order to translate the intention of the framers of the constitution and to safeguard the minority communities and to protect them from discrimination and deprivation of their rights, the Union Government had set up the National Commission for Minorities under the National Commission for Minorities Act, 1992, hereinafter called, 'Act, 1992'. It is the case of the petitioner that, as per section 20 of the said Act, minority community for the purpose of the Act means, communities notified as such by the Central Government. Therefore, according to the petitioner, six religious communities viz., Muslims, Christians, Sikhs, Buddhists, Zoroastrians (Parsis) and Jains have been notified in the gazette of India as minority communities by the Union Government. 3. It is further submitted that the functions of the National Commission in contemplation of section 9 of Act, 1992 make it clear that it should govern the overall development of the minority communities without any undue favour to any particular community. Thereafter, on 9.3.2005, a notification was issued by the Central Government for the constitution of a High Level Committee to prepare a report on the social, economic and educational status of the Muslim community of India known as “the Prime Minister's High Level Committee”, chaired by Justice Rajindar Sachar. 4. The Committee consisted of 7 members and it has submitted a report to the Prime Minister on 17.11.2006 with various recommendations and findings. The recommendations include; (1) set up an equal opportunity commission to look into the grievances of the deprived groups like minorities; (2) create a nomination procedure to increase participation of minorities in public bodies; (3) establish a determination procedure that does not reserve constituencies with high minority population for scheduled castes; (4) increase employment share of Muslims, particularly where there is great deal of public dealing. Work out mechanisms to link Madrasas with Higher Secondary School Board; and (5) recognise degrees from Madrasas for eligibility in defence, civil and banking examinations. 5. Anyhow, in 2006, the Union Government under the Prime Minister's New 15 point programmes for the welfare of minorities announced scholarship schemes for minority students from minority communities. On the basis of the scheme formulated, the Union Government is providing scholarships to students belonging to minority communities to promote pre-matric and post-metric financial assistance. Scholarships are also given on merit cum means basis. According to the petitioner, nowhere it is stated that scholarships shall be provided to any particular minority community in preference to other minority communities. 6. Therefore, the legal contention advanced by the petitioner is that the scheme formulated by the Union Government is in accordance with the constitutional principles as well as the provisions of Act, 1992 and the Kerala State Commission for Minorities Act, 2014. Exhibit P1 produced by the petitioner is a scheme published by the Union Government for the years 2017-2020 for pre-matric scholarship for students belonging to minority communities. It seems similar schemes are formulated in regard to post-matric students as well as on the basis of merit cum means. The sum and substance of the contention is that a perusal of Exhibit P1 would clearly show that the criteria is “minority status” as a whole and not individual religions forming part of minority communities. 7. Anyhow the State Government has formed a 11 member committee for submitting proposals necessary for implementing the recommendations of Justice Rajindar Sachar Commission report in Kerala, headed by Paloly Muhammed Kutty, the then Minister for Local Self Government. The said committee also submitted a report on 21.2.2008 after considering various proposals and representations. As part of implementing the said report, the State Government established a minority cell and thereafter, various orders have been issued as part of implementing the report. One of the orders issued on 16.8.2008 by the State Government is Exhibit P2. As per Exhibit P2, it is clear that the Government approved the report of the Pololy Muhammed Kutty Committee and a Minority Cell was started in the Secretariat. Accordingly, 5000 scholarships have been set apart for degree and post graduate professional courses for Muslim women per year and 14 posts of clerks have been created in 14 districts. An amount of Rs.10 Crores was set apart for the implementation of the above scholarships. Thereafter, 1st respondent extended the benefit given in Exhibit P2 to Latin Catholics and other Converted Christians as per Exhibit P3 Government Order dated 22.2.2011 bearing G.O.(Rt.)No.57/2011/GAD. In Exhibit P3 it is only stated that the benefits given to the Muslim students in regard to the scholarships and hostel stipend shall also be given to Latin Catholic Christians and Converted Christian students. 8. The predominant contention advanced by the petitioner in that regard is that, contrary to what is stated in Exhibit P3, without any rationale, the State Government issued Exhibit P4 order bearing G.O.(Rt. )No.3427/2015/GAD dated 8.5.2015 that reservation among the Muslims and other minority communities will be in the ratio of 80:20 i.e., 80% to Muslim Community and 20% to Latin Christians and Converted Christians. It is further stated that 30% of the seats shall be reserved for girls. Therefore, it is contended that the fixation of ratio in Exhibit P4 is arbitrary, unjust and illegal and accordingly violative of Articles 14 and 15 of the Constitution of India. It is to be noted that the State Government passed the Kerala State Commission for Minorities Act, 2014 with an intention to constitute a State Commission for the comprehensive educational advancement, welfare, protection and empowerment of minorities in the State of Kerala and to provide for matters connected therewith or incidental thereto, which Act has come into force w.e.f. 15.05.2013. 9. Minorities is defined under section 2(d) of the Act to mean, “ a community notified by the Central Government under the Act, 1992”. Section 9 of the Act, 2014 deals with the functions of the Commission, the details of the same would be discussed hereafter. It is further contended by the petitioner that as per the 2011 census, in the State of Kerala 54.73% are Hindus, 26.56% are Muslims and 18.38% Christians and rest of the religious minorities are 0.33%. Thus, the total population of the minority communities in Kerala is 45.27% and out of which, 58.67% is Muslims and 40.6% is Christians and 0.73% constituted other minority communities. However, studies conducted by the Vital Statistics Division, Department of Economics and Statistics, Government of Kerala, regarding the percentage of birth analysis for the year 2017 shows that there are 14.96% Christians, 43% Muslims and 41.70% Hindus, and there is a drastic decrease of the Christian population. Consequent to the said development, complaints have been submitted before the Kerala State Commission for Minorities – the 2nd respondent and Exhibit P5 memorandum was submitted by the Catholics Bishops Conference of India Council for Laity regarding the sufferings of Christian Minority in India. Likewise, other memorandums were also submitted but according to the petitioner, the discrimination of granting largesse to one section of the minority community is still continuing without any legal backing and in total disregard to the available data on the subject. To highlight the same, petitioner has produced Exhibit P7 information dated 14.10.2009 issued by the Public Information Officer under the State Government, wherein it is stated that the ratio of 80:20 is continued in the light of Exhibit P3 order dated 22.2.2011, and the case of the petitioner is that, the said ratio has no basis and formulated without conducting any study. Therefore, according to the petitioner, it is clear that under the cover of minority rights, the respondents are supporting a particular section. 10. Matters being so, petitioner has submitted Exhibit P8 representation before the State Government on 3.10.2020 with copy to the 2 nd and 3rd respondents viz., State Minority Commission as well as the Union of India. Therefore, the grievance highlighted by the petitioner is that, in spite of the earnest efforts made by the other minority community in the State viz., Christians, the same is not attended to by the State or the Minority Commission, which persuaded the petitioner to file this writ petition. 11. The State Government have filed a counter affidavit stating that the Paloli Committee relied on statistics from Justice Sachar Committee report and Kerala Padana report for finalizing its report, which reveals Muslims are far behind Christian in the college enrolment (and even behind scheduled castes and scheduled tribes) i.e. 8.1% for Muslims and 28.1, 20.5,16.7,11.8 and 10.3 for forward Hindus, Christians, backward Hindus, Scheduled Tribes and Scheduled Castes respectively. It is also stated that the unemployment percentage is 55.2 among Muslims, while it is 31.9 among Christians and 40.2 among backward Hindus. With regard to land ownership, there are only 3% Christians is landless while it is 37.8% among Muslims. In the matter of poverty also, there is a wide gap between Muslims and Christians. The reality is that the Muslims in Kerala stand far behind than the other communities in the social economic and educational fields and the standard of education of the Kerala Muslims stands too low to that of Christians. Hence, the issue is that Muslims in Kerala are ‘in toto’ a backward community and included in OBC category by the State Government while in other religious minorities including Christians, the Roman Catholics and some other sects among Christians are not backward communities in toto. Besides, the Sachar committee report clearly emphasized on the backwardness of Muslims in the education field and the necessity of their upliftment and improving their educational conditions. Hence, based on the Committee report, the Government took affirmative action like granting of separate scholarships schemes for the development of backward Muslim 12. It is further stated that the Petitioner himself has quoted in the writ petition the main recommendations of the Prime Minister's High level committee, chaired by Justice Rajindar Sachar, in which it is clearly stated to increase employment share of Muslims particularly where there is great deal of public dealing and work out mechanism to link Madrasas with higher secondary school board and even to recognize degree from Madrasas for eligibility in defence, civil and banking examinations. According to the 1 st respondent, it is a well known fact that, if there is no opportunity for education and training, there will be no chance for employment. In addition to that, there is a positive correlation between education and employment and more higher education means a chance for more employment. In order to increase the chance of employment, the Government should increase accessibility to education. Hence, the Government gave due consideration to weaker and under privileged groups of religious minorities while envisaging its programmes, as in the case of Scheduled Castes and Scheduled Tribes. 13. It is stated that the Justice Sachar Committee was constituted only to study and report the status of Muslims and it is to safeguard the spirit of Sachar Committee, the Government are implementing special programmes and packages for the most weakest sections of the Minority communities from Muslims, Latin and Converted Christians and SC/ST from the Hindu communities. At the same time, if there are any other underprivileged and unrepresented groups, they also to be considered, and included. On the other hand, if there is any ineligible among the group of Muslims, Christians or others, they should be eliminated and that portion too should be distributed among other eligible groups. 14. It is also stated that the Central Government and State Governments have their own policy to implement the programmes and Projects using the respective funds. The pre-metric, post-matric and merit-cum means scholarships under Exhibit P1 Scheme are distributed directly by the Central Government and the State Government is only the Nodal agency. The State Government is providing about 13 Vidhya Samunnathi Scholarships/programmes to forward caste students through Kerala State Welfare Corporation for forward Communities, which is not available in Central Government Schemes. The State Government have different schemes to meet different requirements. Just like Minority Scholarship for Muslims, the State Government spends nearly Rs.9,33,92,000/- per annum for payment of Scholarships for forward caste students including Christians. Further, financial aid is provided for undertaking coaching for competitive examinations to forward caste students including Christians, evident from Exhibit R1(b). 15. It is further stated that the State Government is free to implement such scholarships or other educational supports as per the need of the hour. According to the 1st respondent, the 80:20 ratio, evidently based on the rough population ratio of respective communities, is neither arbitrary nor unjust or illegal and this action does not violate Articles 14 and 15 as contended and the accessibility to education for the weakest sections of the community is the prime objective of the Prime Minister's 15 Point Programme. 16. Additional 4th respondent viz., an organisation called Minority Indians Planning and Vigilance Commission Trust, has also filed an affidavit justifying the stand adopted by the State Government in Exhibit P3 order fixing 80:20 ratio by and between the Muslims and the Latin Catholic Christians and other Converted Christians. The Union of India have filed a statement contenting as "2. The Pre-Matric Scholarship Scheme for students of the Minority Communities was initially approved on 30 th January, 2008. It is a Central Sector Scheme with 100% Central Government funding. The students studying in India in a government/ recognised private school, in Class I to X, who secure 50% marks in the previous examination and whose parents / guardians' annual income does not exceed Rs.1 lakh, are eligible for award of the Pre-Matric scholarship under the scheme. Under the scheme, 30 lakh fresh scholarships are awarded every year in addition to the renewals. 30% of the scholarships are earmarked for girl students. Scholarship ranging from Rs. 1,000/- to Rs. 10,700/- is awarded to every selected student. 3. The Post Matric Scholarship Scheme was launched in November, 2007. It is a Central Sector Scheme. Post Matric Scholarship is awarded for studies in a Government/recognized private higher secondary schools/colleges/Universities including residential higher secondary schools/colleges of India. 4. Students who secure 50% marks in the previous year's final examination and whose parents'/ guardians' annual income does not exceed Rs. 2.00 lakh are eligible for award of scholarship under the Post Matric Scholarship scheme. Five lakhs Fresh scholarships are awarded every year in addition to the renewals. 30% of scholarships are earmarked for girl students. In case sufficient numbers of girl students are not available, then eligible boy students are given these scholarships. Scholarship ranging from Rs. 2,300/- to Rs. 15,000/- is awarded to every selected student. The details related to rate of Scholarship are given below: 1 Admission fee from class VI to Rs.500/- per Rs.500/- per 2 Tuition fee from class VI to X Rs.350/- per month Rs.350/- per (ii) Class VI to X Rs.600/- per month Rs.100/- per month 1 Admission and tuition fee from Actual subject to a Actual subject to a 2 Admission and course/tuition Actual subject to a Actual subject to fee for technical and vocational maximum ceiling of a maximum ceiling courses of XI and XII level Rs.10,000 per of Rs.10,000 per 3 Admission and tuition fee for Actual subject to a Actual subject to a under graduate, post graduate maximum ceiling of maximum ceiling study material, etc.) Rs.380 per month Rs.230 per month (ii) Courses other than technical Rs.570 per month Rs.300 per month graduate level. (iii) M.Phil and Ph.D (For those Rs.1200 per month Rs.550 per month 5. It is respectfully submitted that, to improve transparency in the implementation of the scholarship schemes, a new and revamped version of National Scholarship Portal (NSP) has been launched by the Government during 2015-16 for various Ministries of Government of India including Ministry of Minority Affairs. All the above Scholarship Schemes of this Ministry are implemented through this portal. The scholarships are transferred into the bank accounts of students through Direct Benefit Transfer (DBT) mode. The details of Community-wise scholarships sanctioned under Pre-Matric and Post Matric Scholarship Schemes for Minorities in respect of Kerala State for the last six years, 2014-20, are produced as Annexure R3 (a). 6. As per the Scheme guidelines, a total of thirty (30) lakh scholarships and five lakh scholarships are targeted to be distributed as Fresh' Scholarships under Pre-Matric and Post Matric Scholarship Schemes respectively. These are besides Renewal scholarships. The distribution of scholarship among the States/Union Territories, under Fresh category, including Kerala, are made on the basis of community-wise population of minorities in the States/Union Territories as per Census 2001 (for 2014-15 to 2017-18) and as per the population of minorities in the States/Union Territories of Census 2011 (for 2018-19 and 2019-20).Thus, it is stated that there is an annual community-wise target for Kerala under each of the schemes. However, under some communities, the number of sanctioned scholarships is less due to non-availability of sufficient eligible applicants, while under some communities it is more due to re-allocation of unfilled quota from other States/communities by the Ministry of Minority Affairs. 7. It is further stated that the 3 rd Respondent (Ministry of Minority Affairs) has enacted the National Commission for Minority Act, 1992 to ensure the safeguards to six notified minority communities viz. Buddhist, Christian, Jain, Muslim, Parsi and Sikh and also to protect them from discrimination and from the deprivation of their rights. Admittedly, Christians and other religious minorities are similarly situated and the statutory functions of the Commission do not provide for any undue favour to any particular minority community.” 17. We have heard Senior Adv. Sri.Raju Joseph, assisted by Adv. Julian Xavier for the petitioner, Assistant Solicitor General of India Sri.P.Vijayakumar for the Union of India and O.A.Nuriya for the additional 4 th respondent and perused the pleadings and materials on record. 18. In the backdrop of the above contentions petitioner seeks to quash Exhibits P2 to P4 orders issued by the State Government dated 16.8.2008, 22.2.2011 and 8.5.2015. In Exhibit P2, the General Administration Department (Minority Cell) states that on the basis of the study conducted by Paloly Muhammed Kutty Committee regarding the implementation of Justice Rajindar Sachar Commission report in Kerala, a minority cell formed and started functioning in the Secretariat. Paragraph 4 thereto states that 5000 scholarships of Rs.3,000/-, Rs.4,000/- and Rs.5,000/- each per year will be allotted to Muslim girl students, who are undergoing degree, Post-graduate professional courses on merit-cum-means basis, which would be executed by the Department of Collegiate Education, and paragraph 6 specifies that a clerk post each in 14 districts will be created under the Deputy Collector (General) for the purpose and an amount of Rs.10 Crores is set apart for Minority Welfare Programme as allotted in the supplementary request made in July 2008 budget. 19. Exhibit P3 order specifies that on the basis of the report of the committee specified above, Government have considered the matter elaborately and have decided to give scholarships and hostel stipends to Latin Catholics and Converted Christians as given to Muslim girl students. It further denotes that criteria for getting scholarship and hostel stipends for Muslim girl students will be applicable to the above category as well. However, it is significant to note in the said order that the Latin Catholics and Converted Christian girl students are only permitted to get 20% of the total number of scholarships/hostel stipends, which are given to Muslim girl students and further that, the number of scholarships/hostel stipends, which are given to Muslim girl students will continue as Rs.5000/- and Rs.2000/- respectively. Exhibit P4 Government order is in regard to scholarship scheme for minority students pursuing courses such as Chartered Accountancy (C.A) and Works Accountancy (I.C.W.A) and Company Secretaryship, wherein after specifying the nature of the scheme it is categorically stated that the selection will be based on merit and income basis having 60% marks in B.Com/other graduation and students having annual income below Rs.6 lakhs are eligible for scholarship and preference will be given to BPL candidates. The crucial aspect therein is that the reservation among Muslims and other minority communities is in the ratio 80:20 and 30% of seats will be reserved for girl students. Thus, altogether an amount of Rs.1,80,00,000/- is provided towards scholarship 1) to the students undergoing coaching for intermediate 2) to the students undergoing coaching for final and 3) foundation course, at the rate of Rs.12,000/-, Rs.12,000/- and Rs.6,000/- distributed among 500, 500 and 1000 students respectively. 20. It was in the said background that the Catholic Bishops Conference of India and the petitioner submitted Exhibits P5 and P8 representations respectively. These are the basic background facts available before us to decide the issues raised by the petitioner in regard to the distribution of the merit cum means scholarship to the students belonging to the minority communities. Basically the rights available to minority communities stems out from Article 29 of the Constitution of India dealing with protection of interest of minorities. Clause 1 thereto clearly specifies that any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same and clause 2 thereunder specifies that no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them. Article 30 of the Constitution deals with the right of minorities to establish and administer educational institutions . 21. A conjoint reading of Articles 29 and 30 makes it clear that while granting any aid by the State to educational institutions the State shall not discriminate against any educational institution on the ground that it is under the management of a minority whether based on religion or language, which in fact clearly translates the true intention of the framers of the Constitution of 22. Viewed in that background we are proceeding to understand the provisions of the National Commission for Minorities Act, 1992. The statements of objects and reasons of Act, 1992 states that the Minorities Commission was set up in January, 1978 for providing an institutional arrangement for evaluating the safeguards provided in the constitution for the protection of the minorities and to make recommendations for ensuring implementation of the safeguards and the laws. It was also found that the Minorities Commission with statutory status would infuse confidence among the minorities about the working and the effectiveness of the Commission and it would also carry more weight with the State Governments/Union Territory Administrations and the Ministries/Departments and the other organisations of the Central Government. That is how the Commission was constituted consisting of a Chairperson and six members. 23. The main task shouldered on the Commission shall be to evaluate the progress of the development of minorities, monitor the working of the safeguards provided in the constitution for the protection of the interests of minorities and in laws enacted by the Central Government besides looking into the specific complaints regarding deprivation of rights and safeguards of the minorities. It shall also cause studies, research and analysis to be undertaken on the issues relating to socio economic and educational development of the minorities and make recommendations for the effective implementation of the safeguards for the protection of interests of minorities by the Central Government or State Governments. Section 9 of the Act, 1992 deals with the "9. Functions of the Commission.-(1) The Commission shall perform all or (a) evaluate the progress of the development of minorities under the Union (b) monitor the working of the safeguards provided in the Constitution and in laws enacted by Parliament and the State Legislatures; (c) make recommendations for the effective implementation of safeguards for the protection of the interests of minorities by the Central Government or the (d) look into specific complaints regarding deprivation of rights and safeguards of the minorities and take up such matters with the appropriate (e) cause studies to be undertaken into problems arising out of any discrimination against minorities and recommend measures for their removal; (f) conduct studies, research and analysis on the issues relating to socio- economic and educational development of minorities; (g) suggest appropriate measures in respect of any minority to be undertaken (h) make periodical or special reports to the Central Government on any matter pertaining to minorities and in particular difficulties confronted by (i) any other matter which may be referred to it by the Central Government. (2) The Central Government shall cause the recommendations referred to in clause (c) of sub-section (1) to be laid before each House of Parliament along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the Union and the reasons for the non- acceptance, if any, of any of such recommendations. (3) Where any recommendation referred to in clause (c) of sub-section (1) or any part thereof with which any State Government is concerned, the Commission shall forward a copy of such recommendation or part to such State Government who shall cause it to be laid before the Legislature of the State along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the State and the reasons for the non-acceptance, if any, of any of such recommendation or part. (4) The Commission shall, while performing any of the functions mentioned in sub-clauses (a), (b) and (d) of sub-section (1), have all the powers of a civil court trying a suit and in particular, in respect of the following matters, (a) summoning and enforcing the attendance of any person from any part of (b) requiring the discovery and production of any document; (d) requisitioning any public record or copy thereof from any court or (e) issuing commissions for the examination of witnesses and documents; (f) any other matter may be prescribed.” 24. Section 10 makes it clear that the Central Government shall after due appropriation made by Parliament by law in that behalf pay to the Commission by way of grants such sums of money as the Central Government may think fit for being utilised for the purposes of the Act. It is significant to note that section 2(c) defines 'minority' for the purposes of the Act to mean a community notified as such by the Central Government. It is undisputed that the Central Government has notified six religious communities viz., Muslims, Christians, Sikhs, Buddhists, Zoroastrians (Parsis) and Jains, in the gazette of India. 25. Therefore, on a reading of section 9 and section 2(c) along with the notification so issued, it can be clearly seen that the functions of the Commission should govern the overall development of the minority communities as such without discriminating by and between the minority communities so identified. The Kerala State Commission for Minorities Act, 2014 was introduced with the intention to constitute a State Commission for the comprehensive educational advancement, welfare, protection and empowerment of minorities in the State of Kerala and to provide for matters connected therewith or incidental thereto, which has come into force on and w.e.f. 15.5.2013. Section 2(d) thereto defines 'minority' to mean, a community notified by the Central Government under the National Commission for Minorities Act, 1992. Section 9 of the Act deals comprehensively with the functions of the Commission which "9.Functions of the Commission.- The Commission shall perform the following (a) to evaluate the progress of the development of minorities in the State; (b) to enquire and monitor the manner of functioning of various safeguards provided in the Constitution of India or under any other law or under any order of the Government, for the welfare, protection and empowerment of the minorities in (c) to enquire into specific complaints about deprivation of social, economic,educational and linguistic rights, safeguards and benefits of the minorities, to bring such matters into the notice of authorities concerned, to suggest remedial measures and to monitor the follow-up actions thereon; (d) to participate in and give creative suggestions on, the planning programmes for the educational, social and economic development of the minorities: (e) to make recommendations as to the steps to be taken by the Government for the effective implementation of the measures and safeguards for the educational, social and economic development, welfare and protection of the minorities and to make report to the Government either annually or at such other time, as the Commission may deem fit and to monitor their timely implementation; (f) to cause studies to be undertaken into various problems arising out of discrimination towards minorities and recommend measures for their removal (g) to conduct studies, research and analysis and to organize seminars, symposium and awareness classes on the issues relating to social, economic and educational (h) to suggest appropriate measures to be adopted by the Government in respect of (i) to submit report to the Government periodically or specially, on any matter pertaining to minorities, particularly in respect of difficulties being faced by them and (j) to discharge such other functions in relation to the protection, welfare, development and advancement of the minorities, as may be prescribed: (k) to take necessary steps to ensure the representation of minorities proportionate to their population in various employment projects and (l) to ensure the efficient functioning of the law and order system in communal conflict prone areas and to bring lapses to the notice of the (m) any other matter pertaining to minorities, entrusted by the Government". 26. Therefore, the intention of constituting the National and State Commission is clear, to protect the interests of the minorities notified by the Union Government by taking into account various aspects including educational, social and economic development of the minorities as such and not any particular minority. Which thus means, the National Commission and the State Commission are not entitled to segregate such backwardness among the minorities so as to protect the interests of any particular minority. It is clear from 2011 census that total population of minority communities in Kerala is 45.27% out of which 58.67% is Muslims and 40.6% is Christians and the balance 0.73% constituted other minority communities. 27. On an analysis of section 9 of Act, 1992 what we could gather is that the Commission itself was constituted to evaluate the progress of the development of minorities under the Union and States taking into account the constitutional safeguards and the laws enacted by Parliament and the State Legislatures and accordingly make recommendations for the effective implementation for the protection of the interests of minorities by the Union Government and the State Governments. Further, the said Commission has got a duty to look into any specific complaints regarding deprivation of rights and safeguards of the minorities and is also obliged under law to take up such matters with the appropriate authorities. 28. Here is a case where the Christian Minority community had made representations before the State Government and State Minority Commission regarding the discrimination meted out to the said community in the matter of award of merit-cum-means scholarship, but no action was initiated. Likewise, section 13 of the State Commission for Minorities Act, 2014, encompasses a duty on the commission to look after the welfare of the minority communities within the State without any discrimination. However, the orders passed by the State Government viz., Exhibits P2, P3 and P4 show that clear discrimination is shown by favouring a particular minority community by providing scholarships in the ratio of 80:20 i.e., 80% to Muslims and 20% to the Latin Catholic Christians and Converted Christians, which is not the letter and spirit of the provisions of the Act, 1992 and the Act, 2014, formation of which is mandated by virtue of the Constitutional guarantee extended to the minority communities. Moreover, the mandates contained under Articles 14 and 15 of the Constitution of India are clearly violated by the State Government in the matter of the award of scholarships. It is also equally important to note that the Act, 1992 and the Act, 2014 envisions the Commission to treat the minority communities as a whole, and if at all the development of weaker sections among each of the minority communities is required, the Commission is to take into account the requirements of such weaker sections in each of the communities and divide the merit-cum-means scholarship equally by and between the members of the minority communities. However, in utter violation of the constitutional mandates contained under Articles 14, 15, 29 and 30, the State Government has issued the impugned orders. 29. Article 14 clearly mandates that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India, whereas Article 15 (1) specifies that the State shall not discriminate against any citizen on grounds only on religion, race, caste, sex, place of birth or any of them, but at the same time we are concious of the fact that the provisions of Article 15 would not stand in the way of the State from making any provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes in so far as such special provisions relate to admission of such classes of citizens to educational institutions including private educational institutions by virtue of Clauses (4) and (5) thereto, irrespective of the provisions of Articles 29 and 30 of the Constitution dealing with minorities. 30. It is also clear from clause (6) of Article 15 that nothing in the said Article or sub-clause (g) of clause 1 of Article 19 or clause (2) of Article 29 would stand in the way of the State from making, a) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5) ; and b) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and 5 in so far as such special provisions relate to their admission to educational institutions including private educational institutions whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of Article 30 etc. 31. On a reading together of Articles 14 and 15, it is clear that the State is endowed with a duty coupled with an obligation to look after the welfare and well being of the socially, educationally and economically weaker sections of citizens irrespective of the special provisions dealing with minorities. Therefore there is nothing wrong in the State Government providing facilities to weaker sections of the community, but when it comes to dealing with the notified minorities, it has to treat them equally, and it is not vested with any powers to treat them unequally, which is quite discernible from the provisions of the Constitution and the laws discussed above. 32. But here is a case where without taking into account the entitlement of the Christian Minority community within the State available from the population ratio, State is indulging in providing scholarship to the Muslim minority community at 80%, which according to us, is an unconstitutional act and unsupported by any law. Mere executive orders issued by the State Government cannot overreach the provisions of the Minority Commissions Acts, 1992 and 2014, and the imperatives contained under the provisions of the Constitution of India discussed above. Article 29 also casts a duty to protect the educational interests of the minority community in equal measure and not in a discriminatory manner. 33. A five member Constitutional Bench of the Apex Court in Chinnaiah v. State of A.P. [(2005)1 SCC 394] had occasion to consider the issue with respect to sub-classification among the Scheduled Castes and Scheduled Tribes and held that except for a limited power of making an exclusion or inclusion in the list by an act of Parliament, there is no provision either to sub-divide, sub- classify or sub-group the castes which are found in the presidential list of Scheduled Castes. In our considered view, the Union Government in contemplation of section 2(c) of the Act, 1992 has notified six communities as minority communities in India which includes Muslims and Christians and therefore, the principles contained in the judgment in Chinnaiah supra would squarely apply to the facts and circumstances to the case at hand. 34. True, taking into account various constitutional provisions and the aspects thereto, the judgment in Chinnaiah supra is referred to a Larger Bench of Seven Judges or more in the order in State of Punjab and Others v. Davinder Singh and Others [(2020)8 SCC 1]. Anyhow, as of now, the proposition of law guiding the field is the judgment in Chinnaiah, the constitutional provisions, and the provisions of the Act, 1992 and Act, 2014. That apart in Davinder singh (supra), the Apex Court expressed its opinion that the State Government has an obligation to undertake the emancipation of the deprived section of the community and eradicate inequalities and for that purpose it can make sub-classification within reserved castes within the SC and ST and adopt distributive justice method to redistribute and reallocate resources and opportunities to fulfil the very purpose of the Constitutional mandate of equal justice to all. 35. Therefore, even if the findings rendered in the reference order for revisiting the findings in Chinnaiah (supra) by a Larger Bench is taken into account, the sub- division envisaged can only be within minority communities and not by taking the weakness of a particular minority community alone. In our view, in order to protect the interest of the notified minority communities as such, adoption of such a course is the only alternative and not otherwise as is done by the State Government . 36. Therefore, deducing the facts, circumstances and the laws, we are of the considered opinion that the action of the State Government in sub- classifying the minorities by providing merit-cum-means scholarship at 80% to Muslim community and 20% to the Latin Catholic Christians and Converted Christians cannot be legally sustained. In that view of the matter, we quash Exhibits P2, P3 and P4 orders of the State Government deliberated above in detail, and hereby direct the Kerala State Government to pass requisite and appropriate Government orders providing merit-cum-means scholarship to the members of the notified minority communities within the State equally and in accordance with the latest population census available with the State Minority Upshot of the above discussion is that the writ petition is allowed to the extent specified above.
The Court said the Kerala government couldn't legally divide minority groups by giving 80% of scholarships to Muslims and 20% to Latin Catholics and converted Christians. The Kerala High Court on Friday cancelled the Kerala Government's orders that set this 80:20 split for scholarships. Justice Shaji P Chaly, speaking for the judges, stated that these orders were not fair or legal. He ordered the state to give scholarships, based on good grades and financial need, to all recognized minority groups equally. The Kerala High Court on Friday cancelled the Kerala Government's plans to give scholarships to Muslim students and Latin Catholic or converted Christians in an 80:20 ratio. Justice Shaji P Chaly, speaking for himself and Chief Justice Manikumar, declared that these orders could not legally stand. He directed the State to provide scholarships, based on good grades and financial need, to members of all recognized minority communities equally. The main part of the court's decision stated, "We hereby order the State Government to create necessary and proper government rules. These rules must provide scholarships, based on good grades and financial need, equally to all recognized minority communities within the state. This should be done based on the most recent population count available with the State Minority Commission." With this decision, the Court approved a formal request, called a petition, filed by lawyer Justine Pallivathukal. The petition claimed that the State Government was unfairly favoring the Muslim community over other minority groups in the state. **Facts and submissions** The main disagreement was about a scholarship program the State Government started for students from minority groups. The program was announced following ideas proposed by an 11-member committee. This committee had been tasked with putting into action the suggestions of the Justice Rajinder Sachar committee in Kerala. The Sachar Committee was a high-level group set up to report on the social, financial, and educational situation of the Muslim community in India. As part of the scholarship program, the State Government offered 5000 scholarships for Muslim women studying for college degrees or higher. In February 2011, students from Latin Catholic and converted Christian groups also became eligible for these scholarships. Then, in a government rule from 2015, it was decided that the scholarships would be divided 80:20. This meant 80% for Muslims and 20% for Latin Catholic Christians and other minority groups. In his petition, the lawyer compared the state's plan to a national scholarship program from 2006. This national program also gave scholarships based on good grades and financial need to students from minority communities. The petitioner argued that the national program never stated that scholarships were given to any particular minority community more than others. The petition also stated, "The State of Kerala, while pretending to promote minority communities, is showing unfair favor to the Muslim community. This harms other minority communities. For Christian communities, other than Latin Catholic and converted Christians, no benefit is given to the rest of the group. This causes complete discrimination." Based on these claims, the lawyer asked the court to fix this unfair treatment and have the scholarships given out equally to all minority communities. As another option, the lawyer asked for scholarships to be divided according to the proportion of people in each minority community. The State argued, using reports from the Sachar Committee and the Kerala Padana Report, that Muslims were falling behind Christians in college attendance. It was stated that only 3% of Christians owned no land, while 37.8% of Muslims were landless. The State claimed that Muslims in Kerala as a whole are a disadvantaged community. However, within other religious minorities like Christians, groups such as Roman Catholics and some other Christian groups were not considered disadvantaged. **The Court's Decision** Among other topics discussed, the Court decided that it is fine for the State Government to provide help to weaker parts of the community. However, when it deals with recognized minority groups, "it must treat them equally." The court's decision stated that the government did not have the power to treat these groups differently. The Court stated, "However, in this case, the State is giving 80% of scholarships to the Muslim minority community. It does this without considering what the Christian Minority community within the State deserves based on its population size. We believe this action is against the Constitution and not supported by any law. Simple orders from the State Government cannot overrule the rules in the Minority Commissions Acts of 1992 and 2014. They also cannot go against the important rules in the Indian Constitution that we discussed. Article 29 also requires the state to protect the educational interests of all minority communities equally, without showing favoritism." The Court called this way of dividing scholarships, like a fixed proportion, a "sub-classification." The Court said, "Therefore, after looking at all the facts, situations, and laws, we believe the State Government's action is not legal. It cannot divide minority groups by giving 80% of scholarships, based on good grades and financial need, to the Muslim community and 20% to Latin Catholic Christians and converted Christians." Asking the state to give scholarships, based on good grades and financial need, equally to all recognized minorities, the lawyer's request was approved. **CASE:** Justine Pallivathukal v. State of Kerala and Others.
0.999464
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1. The respondent No.2 by his order dated 15 th December 2020 exercised the powers under Section 56(1)(a)(b) of the Maharashtra Police Act, 1951 (for short “1951 Act”). By the said order, the appellant, who is a resident of Mandeolgaon, Taluka Badnapur, District Jalna was directed to remove himself outside the limits of District Jalna within 5 days. By the said order, he was externed from District Jalna for a period of two years from the date on which he removes himself from District Jalna. In the impugned order of externment, the respondent No.2 relied upon 5 offences registered against the appellant, the details of which are as under: - 2. Kadim Jalna 247/2018 354, 354(a), 323, Pending in the 3. Chandanzira 378/2018 307, 325, 323, Pending in the 4. Badnapur 15/2020 354, 354(a), Pending in the In addition, the respondent No.2 relied upon confidential in-camera statements of witnesses ‘A’ and ‘B’. A statutory appeal was preferred by the appellant against the impugned order of externment dated 15 th December 2020. The appeal was dismissed by the Appellate Authority. The appellant questioned the impugned order of externment by filing a writ petition under Article 226 of the Constitution of India before the Bombay High Court. A Division Bench of the Bombay High Court by the impugned Judgment and order dated 20th August 2021 dismissed the writ petition. The impugned order of externment was passed on the ground that the confidential statements of witnesses ‘A’ and ‘B’ disclose that witnesses are not willing to come forward to give evidence against the appellant, the activities of the appellant are very dangerous and the offences registered against the appellant under the Indian Penal Code (for short “IPC”) are of grave and serious nature which are causing disturbance to the public at large. It was further observed by the respondent No.2 that the confidential statements of two witnesses demonstrate that the appellant is indulging in illegal activities which are causing alarm, danger or harm to the public at large. 2. Shri Sandeep Sudhakar Deshmukh, the learned counsel appearing for the appellant has taken us through the impugned order of externment as well as the impugned Judgment and order of the Bombay High Court. His submission is that the act of passing the impugned order of externment was a mala fide act at the instance of Shri Narayan Kuche, a local Member of the Legislative Assembly (MLA) with the object of settling family disputes. It is pointed out by the learned counsel that the said MLA is a maternal uncle of the appellant. It is pointed out by the learned counsel that the said MLA tried to implicate the appellant in a false case (Crime No.15 of 2020) filed at his instance by one Varsha Bankar with Badnapur police station in Jalna District. He submitted that the said Varsha Bankar admitted in her police statement that the brother of the said MLA advised her to make phone calls and send messages and photographs to the appellant. He submitted that after a First Information Report was registered against the said MLA, his brother and the said Varsha Bankar, on the basis of the appellant’s complaint, a show-cause notice dated 7th July 2020 was issued by the respondent No.2 to the appellant calling upon him to show cause why an order of externment under Section 56 of 1951 Act should not be passed. The learned counsel pointed out that the in-camera statements of witnesses ‘A’ and ‘B’ are general in nature which do not refer to any specific allegation against the appellant. He submitted that out of the 5 offences relied upon in the impugned order of externment, one is of 2013 and two are of 2018. The fourth offence is of 2020 under Sections 354, 354A, 354D, 509 and 506 of the Indian Penal Code. The fifth offence is under Sections 509, 501, 506 read with Section 67 and 67(A) of the Information Technology Act, 2000. He submitted that the first three offences are stale offences and there is no live link between the said three offences and the object of passing the impugned order of externment. He submitted that the remaining two offences registered in the year 2020 will not attract clauses (a) or (b) of sub-section (1) of Section 56 of the 1951 Act. He would, therefore, submit that the impugned order of externment is vitiated. He urged that the exercise of power is mala fide at the instance of the said MLA. He submitted that on the basis of the same offences, the appellant was arrested under Section 151 of the Code of Criminal Procedure, 1973 (for short “Cr.PC”). On 2 nd June 2020, a proposal submitted by the police to detain the appellant under sub-section (3) of Section 151 of Cr.PC for a period of 15 days was rejected by the learned Judicial Magistrate, First Class and the appellant was ordered to be released. He submitted that on the same set of allegations, the impugned order of externment has been passed against the appellant. In the alternative, he submitted that under Section 58 of the 1951 Act, the maximum period for which a person can be externed is of two years. He submitted that in the impugned order of externment, no reasons have been assigned for externing the appellant for a maximum period of two years. 3. Shri Sachin Patil, the learned counsel appearing for the respondents urged that while passing the order of externment, the competent authority is not required to pass a reasoned order. The competent authority has recorded subjective satisfaction of the existence of the grounds provided in clauses (a) and (b) of sub-section (1) of Section 56 of the 1951 Act. He submitted that the scope of powers under sub-section (3) of Section 151 of Cr.PC is different from the scope of powers under Section 56 of the 1951 Act. He submitted that the High Court has in detail examined the grounds of challenge to the impugned order of externment and has rejected each and every ground. He submitted that no interference is called for with the impugned order of externment and the impugned order of the High Court. 4. We have given careful consideration to the submissions. Under clause (d) of Article 19(1) of the Constitution of India, there is a fundamental right conferred on the citizens to move freely throughout the territory of India. In view of clause (5) of Article 19, State is empowered to make a law enabling the imposition of reasonable restrictions on the exercise of the right conferred by clause (d). An order of externment passed under provisions of Section 56 of the 1951 Act imposes a restraint on the person against whom the order is made from entering a particular area. Thus, such orders infringe the fundamental right guaranteed under Article 19(1)(d). Hence, the restriction imposed by passing an order of externment must stand the test of [(1)] Whenever it shall appear in Greater Bombay and appointed under section 7 to the Commissioner and in other area or areas to which the State Government may, by notification in the Official Gazette, extend the provisions of this section, to the District Magistrate, or the Sub-Divisional Magistrate specially empowered by the State Government in that behalf (a) that the calculated to cause alarm, danger or harm to person or property or (b) that there are reasonable grounds for believing that such person is engaged or is about involving force or violence or an offence punishable under Chapter XII, XVI or XVII of the Indian Penal Code, or in the abetment of any such offence and when in the opinion of such officer witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards the safety of their person or property, or [(bb) that there are reasonable grounds for believing that such person is acting or is about to act (1) in any manner prejudicial to the maintenance Prevention of Communal, Antisocial and other Dangerous Activities Act, 1980 or (2) in any manner prejudicial to the maintenance or supplies of commodities essential to the community as defined in the Explanation to sub-section (1) of section 3 of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980, or (c) that an outbreak of epidemic disease is likely to result from the continued residence of an immigrant, the said officer may, by an order in writing duly served on him or by beat of drum or otherwise as he thinks fit, direct such person or immigrant so to conduct himself as shall seem necessary in order to prevent violence and alarm [or such prejudicial act], or the outbreak or spread of such disease or [notwithstanding anything contained in this Act or any other law for the time being in force, to remove himself outside such area or areas in the State of Maharashtra (whether within the local limits of the jurisdiction of the officer or not and whether contiguous or not), by such route, and within such time, as the officer may specify and not to enter or return to the area or areas specified (hereinafter referred to as “the specified area or areas”) from which he was directed to remove himself. [(2) An officer directing any person under sub-section (1) to remove himself from any specified area or areas in the State may further direct such person that during the period the order made against him is in force, as and when he resides in any other areas in the State, he shall report his place of residence to the officer-in-charge of the nearest police station once in address. The said officer may also direct that, during the said period, as and when he goes away from the State, he shall, within ten days from the date of his departure from the State send a report in writing to the said officer, either by post or otherwise, of the back to the State he shall, within ten days, from the date of his arrival in the State, report the date of his arrival to the officer-in-charge of the police station nearest to the place where he may be staying. A perusal of sub-section (1) of Section 56 shows that there are distinct grounds specified under sub-section (1) of Section 56 for passing an order of externment. The said grounds are in clauses (a), (b), (bb), and (c). In the present case, clauses (a) and (b) of sub-section (1) of Section 56 of the 1951 Act have been invoked. The ground in clause (a) is that the movements or acts of any person are causing or calculated to cause alarm, danger or harm to a person or property. The ground in clause (b) is that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission of an offence involving force or violence or an offence punishable under Chapter XII, XVI or XVII in IPC, or the abetment of any such offence. Clause (b) is qualified by a condition that the competent authority empowered to pass such order should be of the opinion that witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards the safety of their person or property. Obviously, the opinion must be formed on the basis of material on record. 6. As observed earlier, Section 56 makes serious inroads on the personal liberty of a citizen guaranteed under Article 19(1)(d) of the Constitution of India. In the case of Pandharinath Shridhar Rangnekar v. Dy. Commr. of Police, State of Maharashtra1 in paragraph 9, this Court has held that the reasons which necessitate or justify the passing of an extraordinary order of externment arise out of extraordinary circumstances. In the same decision, this Court held that care must be taken to ensure that the requirement of giving a hearing under Section 59 of the 1951 Act is strictly complied with. This Court also held that the requirements of Section 56 must be strictly complied with. 7. There cannot be any manner of doubt that an order of externment is an extraordinary measure. The effect of the order of externment is of depriving a citizen of his fundamental right of free movement throughout the territory of India. In practical terms, such an order prevents the person even from staying in his own house along with his family members during the period for which this order is in subsistence. In a given case, such order may deprive the person of his livelihood. It thus follows that recourse should be taken to Section 56 very sparingly keeping in mind that it is an extraordinary measure. For invoking clause (a) of sub-section (1) of Section 56, there must be objective material on record on the basis of which the competent authority must record its subjective satisfaction that the movements or acts of any person are causing or calculated to cause alarm, danger or harm to persons or property. For passing an order under clause (b), there must be objective material on the basis of which the competent authority must record subjective satisfaction that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission of an offence involving force or violence or offences punishable under Chapter XII, XVI or XVII of the IPC. Offences under Chapter XII are relating to Coin and Government Stamps. Offences under Chapter XVI are offences affecting the human body and offences under Chapter XVII are offences relating to the property. In a given case, even if multiple offences have been registered which are referred in clause (b) of sub-section (1) of Section 56 against an individual, that by itself is not sufficient to pass an order of externment under clause (b) of sub-section (1) of Section 56. Moreover, when clause (b) is sought to be invoked, on the basis of material on record, the competent authority must be satisfied that witnesses are not willing to come forward to give evidence against the person proposed to be externed by reason of apprehension on their part as regards their safety or their property. The recording of such subjective satisfaction by the competent authority is sine qua non for passing a valid order of externment under clause (b). 8. On 2nd June 2019, the Police Inspector of Badnapur Police Station, District Jalna submitted a proposal to the Judicial Magistrate, First Class at Badnapur for permitting detention of the appellant for a period of 15 days by invoking provisions of sub-section (3) of Section 151 of Cr.PC (as inserted by the Maharashtra Act No.7 of 1981). In the said proposal, reliance was placed on the same six offences registered against the appellant, which were made a part of the show-cause notice dated 7 th July 2020 on the basis of which the impugned order of externment was passed. The police arrested the appellant and produced him on 2nd June 2020 before the learned Judicial Magistrate, First Class along with the aforesaid proposal. By the order dated 2nd June 2020 (Annexure P-4), the learned Judicial Magistrate rejected the said proposal to detain the appellant and directed his immediate release subject to the condition of attending the concerned Police Station between 10 am to 1 pm till 9th June 2020. 9. The power under sub-section (3) of Section 151 as amended for the State of Maharashtra is to arrest a person on the basis of an apprehension that he is likely to continue the design to commit, or is likely to commit a cognizable offence after his release and that the circumstances of the case are such that his presence is likely to be prejudicial to the maintenance of public order. The learned Judicial Magistrate rejected the proposal to keep the appellant in detention for 15 days. There is nothing placed on record to show that the said order was challenged by the police. After having failed to satisfy the learned Judicial Magistrate about the necessity of detaining the appellant for 15 days, the Sub-Divisional Police Officer initiated action of externment against him by issuing a show-cause notice on 7 th July 2020. It is not the case made out in the show cause notice dated 7 th July 2020 that after release of the appellant on 2 nd June 2020, the appellant indulged in the commission of any offence or any other objectionable activity. 10. Considering the nature of the power under Section 56, the competent authority is not expected to write a judgment containing elaborate reasons. However, the competent authority must record its subjective satisfaction of the existence of one of the grounds in sub-section (1) of Section 56 on the basis of objective material placed before it. Though the competent authority is not required to record reasons on par with a judicial order, when challenged, the competent authority must be in a position to show the application of mind. The Court while testing the order of externment cannot go into the question of sufficiency of material based on which the subjective satisfaction has been recorded. However, the Court can always consider whether there existed any material on the basis of which a subjective satisfaction could have been recorded. The Court can interfere when either there is no material or the relevant material has not been considered. The Court cannot interfere because there is a possibility of another view being taken. As in the case of any other administrative order, the judicial review is permissible on the grounds of mala fide, unreasonableness or arbitrariness. 11. In the facts of the case, the non-application of mind is apparent on the face of the record as the order dated 2nd June 2020 of the learned Judicial Magistrate is not even considered in the impugned order of externment though the appellant specifically relied upon it in his reply. This is very relevant as the appellant was sought to be detained under sub-section (3) of Section 151 of Cr.PC for a period of 15 days on the basis of the same offences which are relied upon in the impugned order of externment. As mentioned earlier, from 2nd June 2020 till the passing of the impugned order of externment, the appellant is not shown to be involved in any objectionable activity. The impugned order appears to have been passed casually in a cavalier manner. The first three offences relied upon are of 2013 and 2018 which are stale offences in the sense that there is no live link between the said offences and the necessity of passing an order of externment in the year 2020. The two offences of 2020 alleged against the appellant are against two individuals. The first one is the daughter of the said MLA and the other is the said Varsha Bankar. There is material on record to show that the said Varsha Bankar was acting as per the instructions of the brother of the said MLA. The said two offences are in respect of individuals. There is no material on record to show that witnesses were not coming forward to depose in these two cases. Therefore, both clauses (a) and (b) of sub- section (1) of Section 56 are not attracted. 12. As the order impugned takes away fundamental right under Article 19(1)(d) of the Constitution of India, it must stand the test of reasonableness contemplated by clause (5) of Article 19. Considering the bare facts on record, the said order shows non-application of mind and smacks of arbitrariness. Therefore, it becomes vulnerable. The order cannot be sustained in law. “58. Period of operation of orders under section 55, 55, 56,57 and 57A not to enter any particular area or such area and any District or Districts, or any part thereof, contiguous thereto, or any specified area or areas as the case maybe, shall be for such period as may be specified therein and shall in no case exceed a period of two years from the date on which the person removes himself or is removed from the area, District or Districts or part aforesaid or from the specified area or areas as the case may On a plain reading of Section 58, it is apparent that while passing an order under Section 56, the competent authority must mention the area or District or Districts in respect of which the order has been made. Moreover, the competent authority is required to specify the period for which the restriction will remain in force. The maximum period provided for is of two years. Therefore, an application of mind on the part of the competent authority is required for deciding the duration of the restraint order under Section 56. On the basis of objective assessment of the material on record, the authority has to record its subjective satisfaction that the restriction should be imposed for a specific period. When the competent authority passes an order for the maximum permissible period of two years, the order of externment must disclose an application of mind by the competent authority and the order must record its subjective satisfaction about the necessity of passing an order of externment for the maximum period of two years which is based on material on record. Careful perusal of the impugned order of externment dated 15th December 2020 shows that it does not disclose any application of mind on this aspect. It does not record the subjective satisfaction of the respondent no.2 on the basis of material on record that the order of externment should be for the maximum period of two years. If the order of externment for the maximum permissible period of two years is passed without recording subjective satisfaction regarding the necessity of extending the order of externment to the maximum permissible period, it will amount to imposing unreasonable restrictions on the fundamental right guaranteed under clause (d) of Article 19(1) of the Constitution of India. 14. Perusal of the impugned Judgment and order of the High Court shows that unfortunately, the Division Bench did not notice that an order of externment is not an ordinary measure and it must be resorted to sparingly and in extraordinary circumstances. It was the duty of the Constitutional Court to test the said order within the parameters which are well-settled by 15. Accordingly, the appeal must succeed. The impugned order of externment dated 15th December 2020, as well as impugned Judgment and order dated 20th August 2021 of the High Court, are hereby quashed and set 16. The appeal is allowed in the above terms. All the pending applications, if any, also stand disposed of.
The Supreme Court said that forcing someone to leave an area (called "externment") is not a common solution. It should only be used rarely and in very unusual situations. This is because an externment order takes away a person's basic right to move freely anywhere in India. So, any rule that limits this right must be fair and make sense, according to Justices Ajay Rastogi and Abhay S. Oka. In this specific case, a person living in Jalna District was told to leave the district within five days. An official body, using its legal power under a section of the Maharashtra Police Act, issued this order. The reason given was that the person's actions were very dangerous. Also, crimes he was accused of under the Indian Penal Code were serious and bothered many people. The Bombay High Court later rejected his request to overturn this order. When the case was taken to the Supreme Court, the judges there first pointed out: The Indian Constitution, in Article 19(1)(d), gives all citizens a basic right to move freely anywhere in India. But Article 19(5) also lets the government create laws that put fair limits on this right. An externment order, issued under Section 56 of the 1951 Act, stops a person from entering a specific area. Such orders therefore go against the basic right in Article 19(1)(d). So, any limit set by an externment order must be fair and justified. There is no question that an externment order is a very unusual step. It takes away a citizen's basic right to move freely across India. In real life, such an order stops a person from even living in their own home with their family for as long as the order is active. Sometimes, it might even prevent someone from earning a living. So, Section 56 should be used very rarely, always remembering that it is an extreme measure. The court looked at Section 56 of the Maharashtra Police Act. It said there must be clear, factual evidence. Based on this evidence, the official body must clearly state its belief. This belief should be that a person's actions or movements are causing, or are likely to cause, fear, danger, or harm to people or property. The court explained that for an externment order under part (b) of the law, clear facts are needed. Based on these facts, the official body must be truly convinced that there are good reasons to believe the person is committing or is about to commit crimes. These crimes must involve force or violence. They also include specific types of crimes listed in Chapters 12 (about fake money or stamps), 16 (about harming people), or 17 (about property crimes) of the Indian Penal Code. The court added that even if someone has been accused of many such crimes, that alone is not enough for an externment order under part (b). Also, when using part (b), the official body must be satisfied, based on the evidence, that witnesses are afraid to testify against the person. This fear must be for their own safety or property. Officially noting this conviction by the authority is absolutely necessary for a valid externment order under part (b). The court also said that the official body does not need to write a very detailed legal decision. However, it must officially state that it is convinced one of the reasons in Section 56(1) applies. This conviction must be based on the factual evidence it reviewed. The court stated: The court noted that the official body does not have to give reasons as detailed as a judge's ruling. But if the decision is challenged, the body must show that it thought carefully about the matter. When a court reviews an externment order, it cannot decide if there was *enough* evidence to convince the authority. However, the court *can* check if there was *any* evidence at all that could have led to that conviction. A court can step in if there was no evidence, or if important evidence was ignored. But a court cannot overturn a decision simply because another view of the facts might have been possible. Like other government decisions, a court can review an externment order. This review is allowed if the order appears to be made with bad intentions, unfairly, or without logical reasons. Looking at the evidence, the judges found that in this case, the authority clearly did not think carefully about its decision. The court also said an externment order can last a maximum of two years. If an order is for the full two years, but the authority does not officially explain why that long period is necessary, it unfairly limits a person's basic right to move freely. This right is protected by Article 19(1)(d) of the Constitution. The judges said they reviewed the High Court's decision that was challenged. It showed that the High Court panel unfortunately did not realize that an externment order is not a common step. Instead, it should only be used rarely and in very unusual situations. The Supreme Court added that it was the High Court's duty, as a court upholding the Constitution, to check that order against the clear rules already set by the Supreme Court. Because of these issues, the Supreme Court allowed the appeal, siding with the person who challenged the order.
1. The respondent No.2 by his order dated 15 th December 2020 exercised the powers under Section 56(1)(a)(b) of the Maharashtra Police Act, 1951 (for short “1951 Act”). By the said order, the appellant, who is a resident of Mandeolgaon, Taluka Badnapur, District Jalna was directed to remove himself outside the limits of District Jalna within 5 days. By the said order, he was externed from District Jalna for a period of two years from the date on which he removes himself from District Jalna. In the impugned order of externment, the respondent No.2 relied upon 5 offences registered against the appellant, the details of which are as under: - 2. Kadim Jalna 247/2018 354, 354(a), 323, Pending in the 3. Chandanzira 378/2018 307, 325, 323, Pending in the 4. Badnapur 15/2020 354, 354(a), Pending in the In addition, the respondent No.2 relied upon confidential in-camera statements of witnesses ‘A’ and ‘B’. A statutory appeal was preferred by the appellant against the impugned order of externment dated 15 th December 2020. The appeal was dismissed by the Appellate Authority. The appellant questioned the impugned order of externment by filing a writ petition under Article 226 of the Constitution of India before the Bombay High Court. A Division Bench of the Bombay High Court by the impugned Judgment and order dated 20th August 2021 dismissed the writ petition. The impugned order of externment was passed on the ground that the confidential statements of witnesses ‘A’ and ‘B’ disclose that witnesses are not willing to come forward to give evidence against the appellant, the activities of the appellant are very dangerous and the offences registered against the appellant under the Indian Penal Code (for short “IPC”) are of grave and serious nature which are causing disturbance to the public at large. It was further observed by the respondent No.2 that the confidential statements of two witnesses demonstrate that the appellant is indulging in illegal activities which are causing alarm, danger or harm to the public at large. 2. Shri Sandeep Sudhakar Deshmukh, the learned counsel appearing for the appellant has taken us through the impugned order of externment as well as the impugned Judgment and order of the Bombay High Court. His submission is that the act of passing the impugned order of externment was a mala fide act at the instance of Shri Narayan Kuche, a local Member of the Legislative Assembly (MLA) with the object of settling family disputes. It is pointed out by the learned counsel that the said MLA is a maternal uncle of the appellant. It is pointed out by the learned counsel that the said MLA tried to implicate the appellant in a false case (Crime No.15 of 2020) filed at his instance by one Varsha Bankar with Badnapur police station in Jalna District. He submitted that the said Varsha Bankar admitted in her police statement that the brother of the said MLA advised her to make phone calls and send messages and photographs to the appellant. He submitted that after a First Information Report was registered against the said MLA, his brother and the said Varsha Bankar, on the basis of the appellant’s complaint, a show-cause notice dated 7th July 2020 was issued by the respondent No.2 to the appellant calling upon him to show cause why an order of externment under Section 56 of 1951 Act should not be passed. The learned counsel pointed out that the in-camera statements of witnesses ‘A’ and ‘B’ are general in nature which do not refer to any specific allegation against the appellant. He submitted that out of the 5 offences relied upon in the impugned order of externment, one is of 2013 and two are of 2018. The fourth offence is of 2020 under Sections 354, 354A, 354D, 509 and 506 of the Indian Penal Code. The fifth offence is under Sections 509, 501, 506 read with Section 67 and 67(A) of the Information Technology Act, 2000. He submitted that the first three offences are stale offences and there is no live link between the said three offences and the object of passing the impugned order of externment. He submitted that the remaining two offences registered in the year 2020 will not attract clauses (a) or (b) of sub-section (1) of Section 56 of the 1951 Act. He would, therefore, submit that the impugned order of externment is vitiated. He urged that the exercise of power is mala fide at the instance of the said MLA. He submitted that on the basis of the same offences, the appellant was arrested under Section 151 of the Code of Criminal Procedure, 1973 (for short “Cr.PC”). On 2 nd June 2020, a proposal submitted by the police to detain the appellant under sub-section (3) of Section 151 of Cr.PC for a period of 15 days was rejected by the learned Judicial Magistrate, First Class and the appellant was ordered to be released. He submitted that on the same set of allegations, the impugned order of externment has been passed against the appellant. In the alternative, he submitted that under Section 58 of the 1951 Act, the maximum period for which a person can be externed is of two years. He submitted that in the impugned order of externment, no reasons have been assigned for externing the appellant for a maximum period of two years. 3. Shri Sachin Patil, the learned counsel appearing for the respondents urged that while passing the order of externment, the competent authority is not required to pass a reasoned order. The competent authority has recorded subjective satisfaction of the existence of the grounds provided in clauses (a) and (b) of sub-section (1) of Section 56 of the 1951 Act. He submitted that the scope of powers under sub-section (3) of Section 151 of Cr.PC is different from the scope of powers under Section 56 of the 1951 Act. He submitted that the High Court has in detail examined the grounds of challenge to the impugned order of externment and has rejected each and every ground. He submitted that no interference is called for with the impugned order of externment and the impugned order of the High Court. 4. We have given careful consideration to the submissions. Under clause (d) of Article 19(1) of the Constitution of India, there is a fundamental right conferred on the citizens to move freely throughout the territory of India. In view of clause (5) of Article 19, State is empowered to make a law enabling the imposition of reasonable restrictions on the exercise of the right conferred by clause (d). An order of externment passed under provisions of Section 56 of the 1951 Act imposes a restraint on the person against whom the order is made from entering a particular area. Thus, such orders infringe the fundamental right guaranteed under Article 19(1)(d). Hence, the restriction imposed by passing an order of externment must stand the test of [(1)] Whenever it shall appear in Greater Bombay and appointed under section 7 to the Commissioner and in other area or areas to which the State Government may, by notification in the Official Gazette, extend the provisions of this section, to the District Magistrate, or the Sub-Divisional Magistrate specially empowered by the State Government in that behalf (a) that the calculated to cause alarm, danger or harm to person or property or (b) that there are reasonable grounds for believing that such person is engaged or is about involving force or violence or an offence punishable under Chapter XII, XVI or XVII of the Indian Penal Code, or in the abetment of any such offence and when in the opinion of such officer witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards the safety of their person or property, or [(bb) that there are reasonable grounds for believing that such person is acting or is about to act (1) in any manner prejudicial to the maintenance Prevention of Communal, Antisocial and other Dangerous Activities Act, 1980 or (2) in any manner prejudicial to the maintenance or supplies of commodities essential to the community as defined in the Explanation to sub-section (1) of section 3 of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980, or (c) that an outbreak of epidemic disease is likely to result from the continued residence of an immigrant, the said officer may, by an order in writing duly served on him or by beat of drum or otherwise as he thinks fit, direct such person or immigrant so to conduct himself as shall seem necessary in order to prevent violence and alarm [or such prejudicial act], or the outbreak or spread of such disease or [notwithstanding anything contained in this Act or any other law for the time being in force, to remove himself outside such area or areas in the State of Maharashtra (whether within the local limits of the jurisdiction of the officer or not and whether contiguous or not), by such route, and within such time, as the officer may specify and not to enter or return to the area or areas specified (hereinafter referred to as “the specified area or areas”) from which he was directed to remove himself. [(2) An officer directing any person under sub-section (1) to remove himself from any specified area or areas in the State may further direct such person that during the period the order made against him is in force, as and when he resides in any other areas in the State, he shall report his place of residence to the officer-in-charge of the nearest police station once in address. The said officer may also direct that, during the said period, as and when he goes away from the State, he shall, within ten days from the date of his departure from the State send a report in writing to the said officer, either by post or otherwise, of the back to the State he shall, within ten days, from the date of his arrival in the State, report the date of his arrival to the officer-in-charge of the police station nearest to the place where he may be staying. A perusal of sub-section (1) of Section 56 shows that there are distinct grounds specified under sub-section (1) of Section 56 for passing an order of externment. The said grounds are in clauses (a), (b), (bb), and (c). In the present case, clauses (a) and (b) of sub-section (1) of Section 56 of the 1951 Act have been invoked. The ground in clause (a) is that the movements or acts of any person are causing or calculated to cause alarm, danger or harm to a person or property. The ground in clause (b) is that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission of an offence involving force or violence or an offence punishable under Chapter XII, XVI or XVII in IPC, or the abetment of any such offence. Clause (b) is qualified by a condition that the competent authority empowered to pass such order should be of the opinion that witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards the safety of their person or property. Obviously, the opinion must be formed on the basis of material on record. 6. As observed earlier, Section 56 makes serious inroads on the personal liberty of a citizen guaranteed under Article 19(1)(d) of the Constitution of India. In the case of Pandharinath Shridhar Rangnekar v. Dy. Commr. of Police, State of Maharashtra1 in paragraph 9, this Court has held that the reasons which necessitate or justify the passing of an extraordinary order of externment arise out of extraordinary circumstances. In the same decision, this Court held that care must be taken to ensure that the requirement of giving a hearing under Section 59 of the 1951 Act is strictly complied with. This Court also held that the requirements of Section 56 must be strictly complied with. 7. There cannot be any manner of doubt that an order of externment is an extraordinary measure. The effect of the order of externment is of depriving a citizen of his fundamental right of free movement throughout the territory of India. In practical terms, such an order prevents the person even from staying in his own house along with his family members during the period for which this order is in subsistence. In a given case, such order may deprive the person of his livelihood. It thus follows that recourse should be taken to Section 56 very sparingly keeping in mind that it is an extraordinary measure. For invoking clause (a) of sub-section (1) of Section 56, there must be objective material on record on the basis of which the competent authority must record its subjective satisfaction that the movements or acts of any person are causing or calculated to cause alarm, danger or harm to persons or property. For passing an order under clause (b), there must be objective material on the basis of which the competent authority must record subjective satisfaction that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission of an offence involving force or violence or offences punishable under Chapter XII, XVI or XVII of the IPC. Offences under Chapter XII are relating to Coin and Government Stamps. Offences under Chapter XVI are offences affecting the human body and offences under Chapter XVII are offences relating to the property. In a given case, even if multiple offences have been registered which are referred in clause (b) of sub-section (1) of Section 56 against an individual, that by itself is not sufficient to pass an order of externment under clause (b) of sub-section (1) of Section 56. Moreover, when clause (b) is sought to be invoked, on the basis of material on record, the competent authority must be satisfied that witnesses are not willing to come forward to give evidence against the person proposed to be externed by reason of apprehension on their part as regards their safety or their property. The recording of such subjective satisfaction by the competent authority is sine qua non for passing a valid order of externment under clause (b). 8. On 2nd June 2019, the Police Inspector of Badnapur Police Station, District Jalna submitted a proposal to the Judicial Magistrate, First Class at Badnapur for permitting detention of the appellant for a period of 15 days by invoking provisions of sub-section (3) of Section 151 of Cr.PC (as inserted by the Maharashtra Act No.7 of 1981). In the said proposal, reliance was placed on the same six offences registered against the appellant, which were made a part of the show-cause notice dated 7 th July 2020 on the basis of which the impugned order of externment was passed. The police arrested the appellant and produced him on 2nd June 2020 before the learned Judicial Magistrate, First Class along with the aforesaid proposal. By the order dated 2nd June 2020 (Annexure P-4), the learned Judicial Magistrate rejected the said proposal to detain the appellant and directed his immediate release subject to the condition of attending the concerned Police Station between 10 am to 1 pm till 9th June 2020. 9. The power under sub-section (3) of Section 151 as amended for the State of Maharashtra is to arrest a person on the basis of an apprehension that he is likely to continue the design to commit, or is likely to commit a cognizable offence after his release and that the circumstances of the case are such that his presence is likely to be prejudicial to the maintenance of public order. The learned Judicial Magistrate rejected the proposal to keep the appellant in detention for 15 days. There is nothing placed on record to show that the said order was challenged by the police. After having failed to satisfy the learned Judicial Magistrate about the necessity of detaining the appellant for 15 days, the Sub-Divisional Police Officer initiated action of externment against him by issuing a show-cause notice on 7 th July 2020. It is not the case made out in the show cause notice dated 7 th July 2020 that after release of the appellant on 2 nd June 2020, the appellant indulged in the commission of any offence or any other objectionable activity. 10. Considering the nature of the power under Section 56, the competent authority is not expected to write a judgment containing elaborate reasons. However, the competent authority must record its subjective satisfaction of the existence of one of the grounds in sub-section (1) of Section 56 on the basis of objective material placed before it. Though the competent authority is not required to record reasons on par with a judicial order, when challenged, the competent authority must be in a position to show the application of mind. The Court while testing the order of externment cannot go into the question of sufficiency of material based on which the subjective satisfaction has been recorded. However, the Court can always consider whether there existed any material on the basis of which a subjective satisfaction could have been recorded. The Court can interfere when either there is no material or the relevant material has not been considered. The Court cannot interfere because there is a possibility of another view being taken. As in the case of any other administrative order, the judicial review is permissible on the grounds of mala fide, unreasonableness or arbitrariness. 11. In the facts of the case, the non-application of mind is apparent on the face of the record as the order dated 2nd June 2020 of the learned Judicial Magistrate is not even considered in the impugned order of externment though the appellant specifically relied upon it in his reply. This is very relevant as the appellant was sought to be detained under sub-section (3) of Section 151 of Cr.PC for a period of 15 days on the basis of the same offences which are relied upon in the impugned order of externment. As mentioned earlier, from 2nd June 2020 till the passing of the impugned order of externment, the appellant is not shown to be involved in any objectionable activity. The impugned order appears to have been passed casually in a cavalier manner. The first three offences relied upon are of 2013 and 2018 which are stale offences in the sense that there is no live link between the said offences and the necessity of passing an order of externment in the year 2020. The two offences of 2020 alleged against the appellant are against two individuals. The first one is the daughter of the said MLA and the other is the said Varsha Bankar. There is material on record to show that the said Varsha Bankar was acting as per the instructions of the brother of the said MLA. The said two offences are in respect of individuals. There is no material on record to show that witnesses were not coming forward to depose in these two cases. Therefore, both clauses (a) and (b) of sub- section (1) of Section 56 are not attracted. 12. As the order impugned takes away fundamental right under Article 19(1)(d) of the Constitution of India, it must stand the test of reasonableness contemplated by clause (5) of Article 19. Considering the bare facts on record, the said order shows non-application of mind and smacks of arbitrariness. Therefore, it becomes vulnerable. The order cannot be sustained in law. “58. Period of operation of orders under section 55, 55, 56,57 and 57A not to enter any particular area or such area and any District or Districts, or any part thereof, contiguous thereto, or any specified area or areas as the case maybe, shall be for such period as may be specified therein and shall in no case exceed a period of two years from the date on which the person removes himself or is removed from the area, District or Districts or part aforesaid or from the specified area or areas as the case may On a plain reading of Section 58, it is apparent that while passing an order under Section 56, the competent authority must mention the area or District or Districts in respect of which the order has been made. Moreover, the competent authority is required to specify the period for which the restriction will remain in force. The maximum period provided for is of two years. Therefore, an application of mind on the part of the competent authority is required for deciding the duration of the restraint order under Section 56. On the basis of objective assessment of the material on record, the authority has to record its subjective satisfaction that the restriction should be imposed for a specific period. When the competent authority passes an order for the maximum permissible period of two years, the order of externment must disclose an application of mind by the competent authority and the order must record its subjective satisfaction about the necessity of passing an order of externment for the maximum period of two years which is based on material on record. Careful perusal of the impugned order of externment dated 15th December 2020 shows that it does not disclose any application of mind on this aspect. It does not record the subjective satisfaction of the respondent no.2 on the basis of material on record that the order of externment should be for the maximum period of two years. If the order of externment for the maximum permissible period of two years is passed without recording subjective satisfaction regarding the necessity of extending the order of externment to the maximum permissible period, it will amount to imposing unreasonable restrictions on the fundamental right guaranteed under clause (d) of Article 19(1) of the Constitution of India. 14. Perusal of the impugned Judgment and order of the High Court shows that unfortunately, the Division Bench did not notice that an order of externment is not an ordinary measure and it must be resorted to sparingly and in extraordinary circumstances. It was the duty of the Constitutional Court to test the said order within the parameters which are well-settled by 15. Accordingly, the appeal must succeed. The impugned order of externment dated 15th December 2020, as well as impugned Judgment and order dated 20th August 2021 of the High Court, are hereby quashed and set 16. The appeal is allowed in the above terms. All the pending applications, if any, also stand disposed of.
The Supreme Court said that forcing someone to leave an area (called "externment") is not a common solution. It should only be used rarely and in very unusual situations. This is because an externment order takes away a person's basic right to move freely anywhere in India. So, any rule that limits this right must be fair and make sense, according to Justices Ajay Rastogi and Abhay S. Oka. In this specific case, a person living in Jalna District was told to leave the district within five days. An official body, using its legal power under a section of the Maharashtra Police Act, issued this order. The reason given was that the person's actions were very dangerous. Also, crimes he was accused of under the Indian Penal Code were serious and bothered many people. The Bombay High Court later rejected his request to overturn this order. When the case was taken to the Supreme Court, the judges there first pointed out: The Indian Constitution, in Article 19(1)(d), gives all citizens a basic right to move freely anywhere in India. But Article 19(5) also lets the government create laws that put fair limits on this right. An externment order, issued under Section 56 of the 1951 Act, stops a person from entering a specific area. Such orders therefore go against the basic right in Article 19(1)(d). So, any limit set by an externment order must be fair and justified. There is no question that an externment order is a very unusual step. It takes away a citizen's basic right to move freely across India. In real life, such an order stops a person from even living in their own home with their family for as long as the order is active. Sometimes, it might even prevent someone from earning a living. So, Section 56 should be used very rarely, always remembering that it is an extreme measure. The court looked at Section 56 of the Maharashtra Police Act. It said there must be clear, factual evidence. Based on this evidence, the official body must clearly state its belief. This belief should be that a person's actions or movements are causing, or are likely to cause, fear, danger, or harm to people or property. The court explained that for an externment order under part (b) of the law, clear facts are needed. Based on these facts, the official body must be truly convinced that there are good reasons to believe the person is committing or is about to commit crimes. These crimes must involve force or violence. They also include specific types of crimes listed in Chapters 12 (about fake money or stamps), 16 (about harming people), or 17 (about property crimes) of the Indian Penal Code. The court added that even if someone has been accused of many such crimes, that alone is not enough for an externment order under part (b). Also, when using part (b), the official body must be satisfied, based on the evidence, that witnesses are afraid to testify against the person. This fear must be for their own safety or property. Officially noting this conviction by the authority is absolutely necessary for a valid externment order under part (b). The court also said that the official body does not need to write a very detailed legal decision. However, it must officially state that it is convinced one of the reasons in Section 56(1) applies. This conviction must be based on the factual evidence it reviewed. The court stated: The court noted that the official body does not have to give reasons as detailed as a judge's ruling. But if the decision is challenged, the body must show that it thought carefully about the matter. When a court reviews an externment order, it cannot decide if there was *enough* evidence to convince the authority. However, the court *can* check if there was *any* evidence at all that could have led to that conviction. A court can step in if there was no evidence, or if important evidence was ignored. But a court cannot overturn a decision simply because another view of the facts might have been possible. Like other government decisions, a court can review an externment order. This review is allowed if the order appears to be made with bad intentions, unfairly, or without logical reasons. Looking at the evidence, the judges found that in this case, the authority clearly did not think carefully about its decision. The court also said an externment order can last a maximum of two years. If an order is for the full two years, but the authority does not officially explain why that long period is necessary, it unfairly limits a person's basic right to move freely. This right is protected by Article 19(1)(d) of the Constitution. The judges said they reviewed the High Court's decision that was challenged. It showed that the High Court panel unfortunately did not realize that an externment order is not a common step. Instead, it should only be used rarely and in very unusual situations. The Supreme Court added that it was the High Court's duty, as a court upholding the Constitution, to check that order against the clear rules already set by the Supreme Court. Because of these issues, the Supreme Court allowed the appeal, siding with the person who challenged the order.
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1) The petitioner has sought a Writ of Mandamus against the respondents for releasing his salary for the period with effect from 01.06.2015 to 29.12.2016 along with interest. The petitioner has also sought compensation in the amount of Rs.74,000/ per month for the period during which his salary was withheld. 2) As per the case of the petitioner, he is a permanent employee working as a Driver with the J&K State Road Transport Corporation (hereinafter referred to as the SRTC). On 25.05.2016, the petitioner was transferred on deputation to the office of respondent No.2-Ladakh Autonomous Hill Development Council, Kargil (hereinafter referred to as LAHDC) and, accordingly, he joined the office of respondent No.2. It has been submitted that the petitioner discharged his duties as a Driver in the office of respondent No.2 but he was not paid his salary despite many requests made by him in this regard. Respondent No.2 vide communication dated 1st August, 2015, requested respondent No.4 to release the salary of the petitioner from his parent department but vide communication dated 13.09.2015, it was conveyed to respondent No.2 that there is no provision for payment of salary to those employees who have been sent on deputation to other departments/organizations. 3) Ultimately, the petitioner was relieved on 27.12.2016 from the office of respondent No.2 and was directed to report to the office of respondent No.7, which is a subordinate office of respondent No.4. According to the petitioner, he has served with respondent No.2 for 20 months on deputation basis but he has not been paid any salary for this period, either by LAHDC or by SRTC. The petitioner is stated to have made representations before the office bearers of his parent organization but he has not been paid the salary which has compelled him to file the instant writ petition. 4) Both LAHDC and SRTC have filed separate replies in opposition to the writ petition. In its reply, the LAHDC has submitted that the petitioner was working with the said Council on attachment basis with Executive Councilor Works, Power and Tourism. It has been claimed that for the entire period of his posting with LAHDC, the petitioner continued to be under the substantive employment of the SRTC. It has been contended that since the petitioner was working on attachment basis from his parent department, as such, it is his parent organization which has to pay the monthly salary to him. It has been further contended that in similar other cases the salary has been paid by the parent departments of the employees whose services were utilized by the LAHDC. It has been also contended that there is no post of Driver in LAHDC, as such, the petitioner’s salary could not be drawn by the Council. 5) The SRTC has, in its reply, contended that vide order dated 25.05.2015, the petitioner was transferred on deputation to the LAHDC Secretariat on the request of the said Council and he was repatriated in terms of order No.LAHDC-K/CEC/Detach/2016/ 473-75 dated 27.12.2016, issued by the LAHDC, Kargil. It has been submitted that during the whole of this intervening period the petitioner performed his duties with LAHDC. It has been claimed that in terms of deputation order dated 25.05.2015, it was made explicitly clear that the salary of the petitioner for the period of deputation shall be paid by the LAHDC and not by the parent department. On this ground, it has been contended that the unpaid salary during the period the petitioner had served with the LAHDC has to be paid by the Council and not by the SRTC. 6) I have heard learned counsel for the parties and perused the pleadings and the documents placed on record. 7) It is not in dispute that the petitioner has served with LAHDC from 26th May, 2015 to 29th December, 2016 and it is also not in dispute that the petitioner has not been paid his salary during this period. The only question which is required to be determined is as to which amongst the two organizations i.e., LAHDC and SRTC, is obliged to pay salary to the petitioner. 8) According to the stand of the SRTC, the petitioner was transferred on deputation to LAHDC on the request of said Council whereas according to the stand of the LAHDC, the petitioner was only attached with the Council and he was not transferred on deputation. In order to determine as to which of the two stands is correct, it will be apt to have a look at the order dated 25.05.2015, by virtue of which the petitioner was deputed to serve with the LAHDC. It reads as under: Subject: Deputation of Driver to LAHDC Secretariat Kargil Shri Abass Ali, Driver Regd No. 3640 presently posted in Depot Kargil hereby deployed to Ladakh Autonomous Hill Development Council Secretariat, Kargil subject to condition that his salary shall be paid by the concerned autonomous body. 4.P/A to Executive Counselor Works power and education LAHDC Kargil for information. This is in reference to his office No. LAHDC/K/CECSRTC /2015/163 dated: 18.05.2015. 5.Divisional Accounts officer SRTC Srinagar. 6.Manager Tourist Services JKSRTC, Srinagar for information, he will furnish LPC/Service Book of the deputationist to LAHDC Secretary. 7.Depot Manager JKSRTC Kargil for information. 9) From a perusal of the aforesaid order, it is clear that the petitioner was sent on deputation to LAHDC Secretariat, Kargil. The order makes it clear that the salary of the petitioner has to be paid by the Council. Even the LPC and service book of the petitioner has been directed to be forwarded to the LAHDC. 10) It appears that after issuance of this order the LAHDC has written letter dated 30th May, 2015, to the Managing Director, SRTC, Srinagar, conveying that there is no provision for payment of salary to the petitioner and that salary dues of the petitioner should be paid by the SRTC. Another similar communication has been addressed by LAHDC to the Manager, Tourist Services, J&K SRTC, Srinagar, on 01.08.2015. In response to these communications, it seems that General Manager (Admn), J&K SRTC, has addressed letter dated 13thSeptember, 2015, to conveying that the SRTC has no provision towards payment of salary to its employees who have been sent on deputation to other departments. 11) From the aforesaid sequence of events, it is clear that the petitioner was sent on deputation by the SRTC to LAHDC and it was made clear that the salary of the petitioner shall be paid by the LAHDC, though it seems that the Council was not comfortable with the condition regarding payment of salary and in this regard it addressed a number of communications to the officers of the SRTC but at the same time the Council did not relieve the petitioner and continued to avail his services, that too when General Manager, J&KSRTC, vide his letter dated 13th September, 2015, had made it clear to the Council that the salary of the employees sent on deputation has to be borne by the borrowing department. The Council continued to avail the services of the petitioner for good 20 months without paying any salary to him and without resolving the issue relating to payment of his salary when the parent organization of the petitioner had made it clear to the Council that the liability of paying salary of the petitioner rests with it. 12) When an employee is sent on deputation from his parent department to the borrowing department at the request of the borrowing department, it is the liability of the borrowing department to pay the salary of the employee. The stand taken by the LAHDC that the petitioner was only attached and not deputed to it, is belied from the order issued by the parent department whereby services of the petitioner were kept at the disposal of the LAHDC. Therefore, it is the LAHDC which has to pay the salary to the petitioner during the period he served with the said organization, particularly when in the deputation order itself it was made clear that the salary of the petitioner has to be borne by the Council. The respondents No.2 and 3 cannot wriggle out of their liability to pay the legitimately earned salary of the petitioner by taking a stand that it was a case of attachment only, which is not the correct position. 13) The dispute between the two organization has led to withholding of legitimately earned salary of the petitioner for none of his fault. Respondents No.2 and 3 are, therefore, under an obligation not only to release the salary of the petitioner for the period he has served with them but also to pay interest. 14) Accordingly, the writ petition is allowed and respondents No.2 and 3 are directed to release the salary of the petitioner for the period he has served with Ladakh Autonomous Hill Development Council, Kargil, along with interest @6% per annum from the date of filing of this writ petition till realization of the amount. No order as to costs. Whether the order is speaking: Yes/No
The Jammu and Kashmir and Ladakh High Court stated again that if a worker is sent from their original job to another job on a temporary basis, at the request of that new department, then the new department must pay the worker's salary. They are fully responsible for it. Justice Sanjay Dhar made these comments while hearing a case. In this case, the person who filed the lawsuit, called the "petitioner," asked the court to order the other side, called the "respondents," to pay his salary. He wanted his salary paid from June 1, 2015, to December 29, 2016. He also asked for extra money (interest) and an additional payment of Rs. 74,000 each month for the time his salary was not paid. In this specific case, the petitioner was a permanent driver for the J&K State Road Transport Corporation (SRTC). On May 25, 2016, he was temporarily moved to work for the Ladakh Autonomous Hill Development Council, Kargil (LAHDC), which is respondent No. 2. After starting his new job, the petitioner worked as a driver for LAHDC. However, he did not get paid, even after asking many times. Later, on August 1, 2015, LAHDC (respondent No. 2) wrote to SRTC (respondent No. 4). They asked SRTC to pay the petitioner's salary from his original department. But on September 13, 2015, SRTC replied to LAHDC, saying they do not have a rule to pay workers who are temporarily moved to other departments. Then, on December 27, 2016, LAHDC ended the petitioner's temporary assignment. He was told to report back to an office that works under SRTC. The petitioner stated that he worked for LAHDC for 20 months on a temporary basis. During this entire time, neither LAHDC nor SRTC paid him any salary. When looking at the current case, Justice Dhar noted that if an employee is temporarily moved from their original department to another department at that second department's request, then the second department is responsible for paying the employee's salary. The court looked at the records. It found that SRTC had temporarily assigned the petitioner to LAHDC. It was clearly stated that LAHDC would pay the petitioner's salary. However, it seemed that LAHDC was not happy about this payment condition. They sent several letters to SRTC about it. But at the same time, LAHDC did not send the petitioner back and kept using his services. This happened even after the General Manager of SRTC, in a letter dated September 13, 2015, had told LAHDC clearly that the department receiving a temporarily assigned worker must pay their salary. LAHDC argued that the petitioner was not "deputed" (temporarily moved) but only "attached" to the council. However, the court saw that this claim by LAHDC was false. The order from the petitioner's original department showed that his services were specifically placed under the control of LAHDC. The court then stated, "Therefore, LAHDC must pay the petitioner's salary for the time he worked for that organization. This is especially true because the order moving him there clearly said LAHDC would pay his salary. Respondents No. 2 and 3 cannot escape their responsibility to pay the salary the petitioner rightfully earned by claiming he was only 'attached,' which is not accurate." The court pointed out that the argument between the two organizations caused the petitioner's rightfully earned salary to be held back, even though it was not his fault. So, the court decided that Respondents No. 2 and 3 must not only pay the petitioner's salary for the time he worked for them, but also pay extra money called interest. Because of this, the court approved the petitioner's request. It ordered LAHDC to pay the petitioner's salary for the time he worked for the Ladakh Autonomous Hill Development Council, Kargil. They also had to pay interest at a rate of 6% per year. This interest would be calculated from the day he filed his court request until the full amount is paid. Case Name: Abass Ali versus the State of J&K and Others. Judge: Justice Sanjay Dhar.
1) The petitioner has sought a Writ of Mandamus against the respondents for releasing his salary for the period with effect from 01.06.2015 to 29.12.2016 along with interest. The petitioner has also sought compensation in the amount of Rs.74,000/ per month for the period during which his salary was withheld. 2) As per the case of the petitioner, he is a permanent employee working as a Driver with the J&K State Road Transport Corporation (hereinafter referred to as the SRTC). On 25.05.2016, the petitioner was transferred on deputation to the office of respondent No.2-Ladakh Autonomous Hill Development Council, Kargil (hereinafter referred to as LAHDC) and, accordingly, he joined the office of respondent No.2. It has been submitted that the petitioner discharged his duties as a Driver in the office of respondent No.2 but he was not paid his salary despite many requests made by him in this regard. Respondent No.2 vide communication dated 1st August, 2015, requested respondent No.4 to release the salary of the petitioner from his parent department but vide communication dated 13.09.2015, it was conveyed to respondent No.2 that there is no provision for payment of salary to those employees who have been sent on deputation to other departments/organizations. 3) Ultimately, the petitioner was relieved on 27.12.2016 from the office of respondent No.2 and was directed to report to the office of respondent No.7, which is a subordinate office of respondent No.4. According to the petitioner, he has served with respondent No.2 for 20 months on deputation basis but he has not been paid any salary for this period, either by LAHDC or by SRTC. The petitioner is stated to have made representations before the office bearers of his parent organization but he has not been paid the salary which has compelled him to file the instant writ petition. 4) Both LAHDC and SRTC have filed separate replies in opposition to the writ petition. In its reply, the LAHDC has submitted that the petitioner was working with the said Council on attachment basis with Executive Councilor Works, Power and Tourism. It has been claimed that for the entire period of his posting with LAHDC, the petitioner continued to be under the substantive employment of the SRTC. It has been contended that since the petitioner was working on attachment basis from his parent department, as such, it is his parent organization which has to pay the monthly salary to him. It has been further contended that in similar other cases the salary has been paid by the parent departments of the employees whose services were utilized by the LAHDC. It has been also contended that there is no post of Driver in LAHDC, as such, the petitioner’s salary could not be drawn by the Council. 5) The SRTC has, in its reply, contended that vide order dated 25.05.2015, the petitioner was transferred on deputation to the LAHDC Secretariat on the request of the said Council and he was repatriated in terms of order No.LAHDC-K/CEC/Detach/2016/ 473-75 dated 27.12.2016, issued by the LAHDC, Kargil. It has been submitted that during the whole of this intervening period the petitioner performed his duties with LAHDC. It has been claimed that in terms of deputation order dated 25.05.2015, it was made explicitly clear that the salary of the petitioner for the period of deputation shall be paid by the LAHDC and not by the parent department. On this ground, it has been contended that the unpaid salary during the period the petitioner had served with the LAHDC has to be paid by the Council and not by the SRTC. 6) I have heard learned counsel for the parties and perused the pleadings and the documents placed on record. 7) It is not in dispute that the petitioner has served with LAHDC from 26th May, 2015 to 29th December, 2016 and it is also not in dispute that the petitioner has not been paid his salary during this period. The only question which is required to be determined is as to which amongst the two organizations i.e., LAHDC and SRTC, is obliged to pay salary to the petitioner. 8) According to the stand of the SRTC, the petitioner was transferred on deputation to LAHDC on the request of said Council whereas according to the stand of the LAHDC, the petitioner was only attached with the Council and he was not transferred on deputation. In order to determine as to which of the two stands is correct, it will be apt to have a look at the order dated 25.05.2015, by virtue of which the petitioner was deputed to serve with the LAHDC. It reads as under: Subject: Deputation of Driver to LAHDC Secretariat Kargil Shri Abass Ali, Driver Regd No. 3640 presently posted in Depot Kargil hereby deployed to Ladakh Autonomous Hill Development Council Secretariat, Kargil subject to condition that his salary shall be paid by the concerned autonomous body. 4.P/A to Executive Counselor Works power and education LAHDC Kargil for information. This is in reference to his office No. LAHDC/K/CECSRTC /2015/163 dated: 18.05.2015. 5.Divisional Accounts officer SRTC Srinagar. 6.Manager Tourist Services JKSRTC, Srinagar for information, he will furnish LPC/Service Book of the deputationist to LAHDC Secretary. 7.Depot Manager JKSRTC Kargil for information. 9) From a perusal of the aforesaid order, it is clear that the petitioner was sent on deputation to LAHDC Secretariat, Kargil. The order makes it clear that the salary of the petitioner has to be paid by the Council. Even the LPC and service book of the petitioner has been directed to be forwarded to the LAHDC. 10) It appears that after issuance of this order the LAHDC has written letter dated 30th May, 2015, to the Managing Director, SRTC, Srinagar, conveying that there is no provision for payment of salary to the petitioner and that salary dues of the petitioner should be paid by the SRTC. Another similar communication has been addressed by LAHDC to the Manager, Tourist Services, J&K SRTC, Srinagar, on 01.08.2015. In response to these communications, it seems that General Manager (Admn), J&K SRTC, has addressed letter dated 13thSeptember, 2015, to conveying that the SRTC has no provision towards payment of salary to its employees who have been sent on deputation to other departments. 11) From the aforesaid sequence of events, it is clear that the petitioner was sent on deputation by the SRTC to LAHDC and it was made clear that the salary of the petitioner shall be paid by the LAHDC, though it seems that the Council was not comfortable with the condition regarding payment of salary and in this regard it addressed a number of communications to the officers of the SRTC but at the same time the Council did not relieve the petitioner and continued to avail his services, that too when General Manager, J&KSRTC, vide his letter dated 13th September, 2015, had made it clear to the Council that the salary of the employees sent on deputation has to be borne by the borrowing department. The Council continued to avail the services of the petitioner for good 20 months without paying any salary to him and without resolving the issue relating to payment of his salary when the parent organization of the petitioner had made it clear to the Council that the liability of paying salary of the petitioner rests with it. 12) When an employee is sent on deputation from his parent department to the borrowing department at the request of the borrowing department, it is the liability of the borrowing department to pay the salary of the employee. The stand taken by the LAHDC that the petitioner was only attached and not deputed to it, is belied from the order issued by the parent department whereby services of the petitioner were kept at the disposal of the LAHDC. Therefore, it is the LAHDC which has to pay the salary to the petitioner during the period he served with the said organization, particularly when in the deputation order itself it was made clear that the salary of the petitioner has to be borne by the Council. The respondents No.2 and 3 cannot wriggle out of their liability to pay the legitimately earned salary of the petitioner by taking a stand that it was a case of attachment only, which is not the correct position. 13) The dispute between the two organization has led to withholding of legitimately earned salary of the petitioner for none of his fault. Respondents No.2 and 3 are, therefore, under an obligation not only to release the salary of the petitioner for the period he has served with them but also to pay interest. 14) Accordingly, the writ petition is allowed and respondents No.2 and 3 are directed to release the salary of the petitioner for the period he has served with Ladakh Autonomous Hill Development Council, Kargil, along with interest @6% per annum from the date of filing of this writ petition till realization of the amount. No order as to costs. Whether the order is speaking: Yes/No
The Jammu and Kashmir and Ladakh High Court stated again that if a worker is sent from their original job to another job on a temporary basis, at the request of that new department, then the new department must pay the worker's salary. They are fully responsible for it. Justice Sanjay Dhar made these comments while hearing a case. In this case, the person who filed the lawsuit, called the "petitioner," asked the court to order the other side, called the "respondents," to pay his salary. He wanted his salary paid from June 1, 2015, to December 29, 2016. He also asked for extra money (interest) and an additional payment of Rs. 74,000 each month for the time his salary was not paid. In this specific case, the petitioner was a permanent driver for the J&K State Road Transport Corporation (SRTC). On May 25, 2016, he was temporarily moved to work for the Ladakh Autonomous Hill Development Council, Kargil (LAHDC), which is respondent No. 2. After starting his new job, the petitioner worked as a driver for LAHDC. However, he did not get paid, even after asking many times. Later, on August 1, 2015, LAHDC (respondent No. 2) wrote to SRTC (respondent No. 4). They asked SRTC to pay the petitioner's salary from his original department. But on September 13, 2015, SRTC replied to LAHDC, saying they do not have a rule to pay workers who are temporarily moved to other departments. Then, on December 27, 2016, LAHDC ended the petitioner's temporary assignment. He was told to report back to an office that works under SRTC. The petitioner stated that he worked for LAHDC for 20 months on a temporary basis. During this entire time, neither LAHDC nor SRTC paid him any salary. When looking at the current case, Justice Dhar noted that if an employee is temporarily moved from their original department to another department at that second department's request, then the second department is responsible for paying the employee's salary. The court looked at the records. It found that SRTC had temporarily assigned the petitioner to LAHDC. It was clearly stated that LAHDC would pay the petitioner's salary. However, it seemed that LAHDC was not happy about this payment condition. They sent several letters to SRTC about it. But at the same time, LAHDC did not send the petitioner back and kept using his services. This happened even after the General Manager of SRTC, in a letter dated September 13, 2015, had told LAHDC clearly that the department receiving a temporarily assigned worker must pay their salary. LAHDC argued that the petitioner was not "deputed" (temporarily moved) but only "attached" to the council. However, the court saw that this claim by LAHDC was false. The order from the petitioner's original department showed that his services were specifically placed under the control of LAHDC. The court then stated, "Therefore, LAHDC must pay the petitioner's salary for the time he worked for that organization. This is especially true because the order moving him there clearly said LAHDC would pay his salary. Respondents No. 2 and 3 cannot escape their responsibility to pay the salary the petitioner rightfully earned by claiming he was only 'attached,' which is not accurate." The court pointed out that the argument between the two organizations caused the petitioner's rightfully earned salary to be held back, even though it was not his fault. So, the court decided that Respondents No. 2 and 3 must not only pay the petitioner's salary for the time he worked for them, but also pay extra money called interest. Because of this, the court approved the petitioner's request. It ordered LAHDC to pay the petitioner's salary for the time he worked for the Ladakh Autonomous Hill Development Council, Kargil. They also had to pay interest at a rate of 6% per year. This interest would be calculated from the day he filed his court request until the full amount is paid. Case Name: Abass Ali versus the State of J&K and Others. Judge: Justice Sanjay Dhar.
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These writ petitions have been filed by the petitioners seeking to question the revised answer key issued by the Rajasthan Subordinate and Ministerial Service Selection Board (‘the Board’) for recruitment to the post of Patwari pursuant to the advertisement dated 17.01.2020, preparation of a fresh answer key considering the objections raised by the petitioners for the disputed questions/erroneous answers based on the material produced by them and reevaluation of the answer-sheets and issuance of a fresh select list of provisionally selected candidates. It is, inter-alia, indicated in the petitions that Advertisement No.3/2019 was issued by the Board inviting online applications for direct recruitment on the post of Patwari, competitive written examination was held in four shifts pursuant to the advertisement on 23.10.2021; the preliminary answer key was issued by the Board on 23.10.2021 and a press-note was published, whereby online objections towards preliminary answer key were called from the candidates with their respective supporting materials. The final answer key was issued by the Board on 25.01.2022 on the basis of decision taken by the Expert Committee on the objections raised by the candidates and list of two times provisionally selected candidates was issued for the purpose of verification of documents and credentials of the candidates. The petitioners have questioned the validity of large number of questions/final answers and/or the deletion of particular (8 of 16) [CW-3959/2022] questions, based on the opinion of the Expert Committee. During the course of submissions, the petitioners confined their submissions to Questions No.76 and 86 of Question Booklet No.43) and 15 ((Master Question Booklet Question No.65) of Question Booklet Series-104B, Questions No.135 and 141 of Question Booklet Series-104C and Questions No.69, 76 and 98 of The Board, which had appeared on Caveat, was directed to produce the experts’ opinion on the questions alongwith supporting material for perusal of the Court, which has been produced by the Board. Learned counsel for the parties were heard on various The petitioners have filed extracts from books/material seeking to support their contentions in relation to the validity of the questions/ answers and the decision of the expert committee It would be appropriate to reproduce the disputed questions, the final answer based on decision of the expert committee and view of the expert committee: - Question No.76 of Question Booklet Series-104A: 76. From the given pairs of words you have to select the pair which is related in the same way as the words of the first pair. Final Answer based on decision of the expert committee: (A) (9 of 16) [CW-3959/2022] View of the Expert Committee: Initially the answer was (D). The Expert Committee opined that option (A) is more appropriate than option (D) because word processor is a computer programme generally used to write or process words, but as Music Comes from Guitar, water comes from Tank. Question No.86 of Question Booklet Series-104A: 86. Input : more fight cats cough sough acts idea. Which of the following steps would be the last step for this input? Final Answer based on decision of the expert committee: (C) View of the Expert Committee: The Experts, after indicating various steps, came to the conclusion with regard to correct answer by indicating as under: I. Cough more fight cats sough acts idea II. Cough fight sought more cats acts idea III. Cough fight sough acts more cats idea IV. Cough fight sough acts cats more idea V. Cough fight sough acts cats idea more” Question No.43 in Master Question Booklet (Question 141. O;kdj.k dh n`f’V ls fuEu esa dkSu lk 'kq) okD; gS\ (A) eSaus bl dke esa cM+h v”kqf) dhA (B) yM+dk feBkbZ ysdj Hkkxrk gqvk ?kj vk;kA (C) eSa viuh ckr ds Li’Vhdj.k ds fy, rS;kj gw¡A (D) jke dk ohj&xkFkk jkek;.k esa gSA Final Answer based on decision of the expert committee: (A) [As Question No.65 in Master Question Booklet (Question No.15 15. The survey was conducted under the government of U.P. (A) Definitely true (B) Data inadequate (C) Probably true (D) Probably false Final Answer based on decision of the expert committee: (A) [As Qua both these questions, the petitioners claim that the answers must be different from what was indicated in the preliminary answer key, and the final answer key, however, as the petitioners had not raised any objection qua the preliminary answer key itself, though the answer now claimed by them is different from the preliminary answer key itself, despite grant of the opportunity, in absence of any objection to the preliminary answer key, the plea raised by the petitioners now cannot be countenanced, as the objections as raised were not before the Question No.135 of Question Booklet Series-104C: 135. Where is the cave of ‘Saint Peepa’? Final Answer based on decision of the expert committee: (D) View of the Expert Committee: The Expert Committee referring to jktLFkku dk bfrgkl ,oa laLd`fr d{kk 10 and jktLFkku&bfrgkl ,oa laLd`fr ,ulkbDykihfM;k by Dr. Hukamchand Jain and Narayan Mali, came to the conclusion that correct answer is (D). (11 of 16) [CW-3959/2022] Though the petitioners have also placed on record certain material in support of their contentions that answer “B” is correct, however, as the Expert Committee has after taking into consideration the material, as noticed herein before, and the material produced by the petitioners, have come to a particular conclusion, there is apparently no reason for this Court to substitute its opinion. Question No.141 of Question Booklet Series-104C: 141. Jogi caste of Alwar district play which of the following Final Answer based on decision of the expert committee: (B) The petitioners have claimed that answer “C” is the correct answer, however, they did not raise any objection to the preliminary answer key, which answer has been maintained in the final answer key by the Expert based on the material i.e. musical repertoire of Jogi community of the Eastern Rajasthan. In absence of any objections raised to the preliminary answer key, which answer has been maintained, the petitioners cannot be heard in this regard. Question No.69 of Question Booklet Series-104D: 69. An Excel Workbook is a collection of (C) Charts and Worksheets (D) None of these Final Answer based on decision of the expert committee: (B) (12 of 16) [CW-3959/2022] The Expert Committee has relied on NCERT Book Computerized Accounting System Class 12 th with the indication as “A file in excel is known as a workbook. A workbook is a collection of number of worksheets.” It appears that the Expert Committee has misconstrued the question itself as the question related to the ‘excel workbook’, whereas the material indicated, pertains to a file in Excel only. The material produced by the petitioners published by Vardhman Mahaveer Open University, Kota indicates answer “C”, which material apparently has not been considered by the Expert Committee and, therefore, the same requires a re-look. Question No.76 of Question Booklet Series-104D: 76. In the following letter series, some of the letters are missing which are given in that order as one of the alternatives below it. Choose the correct alternative. a _ bca _ bcab _ ca - bc Final Answer based on decision of the expert committee: Deleted Counsel for the petitioners made objections regarding deletion of the question, however, failed to produce any material in support of the challenge laid, as such plea raised by the counsel for the petitioners cannot be countenanced. Question No.98 of Question Booklet Series-104D: 98. If ‘water’ is called ‘food’, ‘food’ is called ‘tree’, ‘tree’ is called ’sky’, ‘sky’ is called ‘wall’, on which of the following grows a fruit? (C) Tree D) None of these Final Answer based on decision of the expert committee: (B) No material was produced by the respondents in support of the above change of the option. Learned counsel for the respondent Board fairly conceded that the Board will re-consider the option, as indicated, taking into consideration the objections raised in the petition in this regard. From overall consideration of all the questions regarding which the petitioners have raised objections, except for Question No.69 of Question Booklet Series-104D and Question No.98 of Question Booklet Series-104D, regarding which the counsel appearing for the Board himself conceded that same required reconsideration, the petitioners have failed to make out any case for interference. This Court in Phoosgir & Ors. vs. State of Rajasthan & Ors. : S.B. Civil Writ Petition No.17265/2021 and other connected matters decided on 23.03.2022, in a recruitment related to Agriculture Supervisor, came to the following conclusion: - “From the above, it is apparent that the expert committee has thoroughly examined the objections as raised by the petitioners and have reached to a particular conclusion. The petitioners have made submissions based on the material produced by them in support of their claim in relation to each question and the expert committee has referred to / relied on material in support of the conclusion arrived at by them. As out of two materials produced by the petitioners and considered by the expert committee, which material should be relied on, essentially is in the domain of the expert committee and this Court, possibly cannot after the expert committee has arrived at a particular conclusion, opine otherwise, unless the decision made thereon is found to be wholly arbitrary and/ or contrary to the material relied on, which in the present case does not appear to be the case. The parameters for exercise of the jurisdiction by this Court, qua the expert committee opinion, have been repeatedly laid down by the Hon’ble Supreme Court and Division bench of this Court. The principle laid down by the Hon’ble Supreme Court, the latest being in the case of Vikesh Kumar Gupta & Anr. v. State of Rajasthan & Ors. : (2021) 2 SCC 309 as followed by the Division Bench in Rajkamal Basitha v. Rajasthan High Court, Jodhpur & Ors. : D.B.C.W.P. No.11347/2021, decided on 21.02.2022 (at Jaipur Bench) is well settled. The Division Bench in the case of Rajkamal Basitha (supra) observed as "It is well settled through series of judgments of the Supreme Court that the judicial review of the decision of the examining body be it in the filed of education or in the recruitment to the public employment, is extremely limited. Particularly when the examination is being conducted by an expert body and disputed questions are scanned by specially constituted expert committee, the Courts are extremely slow in interfering with the decisions of such bodies. Unless it is pointed out that there is a glaring error or an irrational decision has been rendered the Court in exercise of its writ jurisdiction under Articles 226 and 227 of the Constitution of India would not interfere." Prior to that in RPSC v. Pankaj Raj : D.B.S.A.W. No.697/2019, decided on 29.05.2019 (at Jaipur Bench), the Division Bench while setting aside the judgment of the learned Single, inter-alia, observed as under :- "The impugned judgment in this Court's opinion is clearly erroneous inasmuch as the court has unwittingly donned the robe of the decision maker: to wit, that of an expert, in art, in concluding that one of the choices was defective (question No.11) and that the RPSC's explanation about a misprint was irrelevant, because the answer was wrongly given. These conclusions the court cannot arrive at, as they amount to primary decision making- a task which cannot be undertaken under Article 226. The impugned judgment also overlooked the salutary rule that in the event of doubt, "the benefit ought to go to the examination authority rather than to the candidate" (Ran Vijay, supra)." In another Division Bench judgment in Jagdish Kumar Choudhary & Ors. v. Rajasthan Public Service Commission : D.B.S.A.W. No.447/2020, decided on 21.10.2021, a case where the learned Single Judge had interfered with the decision of the expert committee, it was observed by the Division Bench as under:- "In our view, the learned Single Judge ought not to have interfered with the final conclusion of the expert body duly constituted by the Rajasthan Public Service Commission having expertise in the field. It is not necessary to refer to large number of decisions of this Court as well as of Supreme Court which essentially lay down that the interference by the High Court in matters of education and other technical fields should be kept to the minimum. Short reference to the decision of the (15 of 16) [CW-3959/2022] Supreme Court in the case of Richal & Ors. Vs. SCC 81] would be sufficient." Very recently, when the learned Single Judge interfered with the decision made by the expert committee, in relation to Competitive Examination held by the RPSC, the Division Bench in RPSC v. Ankit Sharma : D.B.S.A.W. No.429/2022, in its order dated 23.02.2022, after referring to the judgments in Ran Vijay Singh v. State of U.P. & Ors. : (2018) 2 SCC 357, UPPSC v. Rahul Singh : (2018) 7 SCC 254, Vikesh Kumar Gupta (supra), Bihar Staff Selection Commission & Ors. v. Arun Kumar & Ors. : (2020) 6 SCC 362, inter-alia, observed while staying the order of the learned Single Judge, as "14. We have referred to the consistent trend of the case law coming from the Supreme Court on the subject. Broadly the approach in such situation is that the scope of judicial review against expert’s opinion is extremely limited. There is a requirement of finality to the process of public employment. This is not to suggest that judicial review is completely shutout; it cannot be. However unless the situation presents a clear cut, black and white, open and shut choice of the decision of the expert body being palpably wrong, the Court would not interfere. An element of tolerance to the minor error or calibration is discernible since achieving certainty and finality is also important. The finality and perfection are sworn enemies. 15. With this legal clarity if we revert back to the questions with respect to which the learned Judge objected to the conclusions of RPSC, none of these questions would prima facie pass the muster of extremely high threshold provided by the Supreme Court in series of judgments noted above. In all cases the learned Single Judge has gone on at considerable length to discuss the view point of the petitioners and material produced by them in support of their contentions, what the expert committee had taken into account and why in the opinion of the learned Judge such conclusions were wrong. At this stage we are not inclined to go into these questions threadbare since we do not propose and we cannot decide these appeals finally. Nevertheless we have strong prima facie belief that the learned Judge had exceeded the scope of writ jurisdiction in the present case. No legal or factual malafides are demonstrated nor procedural illegality established. It may be that in some cases there is a grey area. That by itself would not be sufficient for the writ court to upturn the decision of the expert’s body." (16 of 16) [CW-3959/2022] The Special Leave Petition filed against the Division Bench order came to be rejected by the Hon’ble Supreme Court on The above observations and the principle laid down therein, apply with all force to the present case as well. In view of above factual and legal position, wherein except for Questions No.69 and 98 of Question Booklet Series-104D, wherein for question No.98 of Booklet Series-104D, counsel for the Board himself has conceded , none of the objections raised by the candidates fall within the parameters as laid down by the Hon’ble Supreme Court and Division Bench of this Court and, therefore, except for the two questions, no case for interference is made out. Consequently, the writ petitions are partly allowed. The respondent Board is directed to get Questions No.69 and 98 of Booklet Series-104D and the said questions which are differently numbered in other Booklet Series, re-examined by the Experts, other than those, who had already examined the questions on the earlier occasion and based on their conclusion, amend the final answer key and give effect to the marks obtained by the candidates and other consequential changes in the result. The objections raised in relation to rest of the questions are rejected.
The Rajasthan High Court recently ordered the government board that hires people, called the Rajasthan Subordinate and Ministerial Service Selection Board, to look again at some questions from a job test for the Patwari position. They want different experts to check these questions. The Court ordered that once these experts decide, the Board must change the official answer key. This means they will adjust candidates' scores and make any other necessary changes to the test results. This written test was given at four different times. The Board released the official answer key on January 25, 2022. They had created this key after an expert group looked at complaints from the test-takers. The Board also released a list of candidates who were chosen temporarily, so their documents and qualifications could be checked. Many candidates filed official court requests, called "writ petitions," to challenge the updated answer key from the Board. These requests asked for a new answer key to be made. They wanted this new key to consider their complaints about certain questions and wrong answers, based on the evidence they provided. They also asked for their test papers to be graded again and for a new list of temporarily selected candidates to be released. The candidates also argued that many questions, the official answers, or the removal of some questions were not fair or correct, disagreeing with the expert group's view. Justice Arun Bansali looked at these court requests and agreed with some parts of them, but not all. He stated: "The Board is ordered to have questions number 69 and 98 from test booklet series 104D, and the same questions with different numbers in other test versions, re-examined by new experts. These new experts must be different from those who checked the questions before. Based on what these experts decide, the Board must change the final answer key, adjust the candidates' scores, and make any other necessary changes to the results. The complaints about all other questions were rejected." The court referred to a previous case called Phoosgir & Others v. State of Rajasthan & Others. In that case, the court had said that it's usually not enough for a court to simply go against what a group of experts has decided, especially when the issue isn't completely clear. After carefully reviewing all the questions that the candidates had argued about, the court said: "After looking at all the questions that the candidates complained about, the court found that there was no strong reason for it to get involved, except for Questions No. 69 and 98 from test booklet series 104D. The lawyer for the Board even agreed that these two specific questions needed to be reviewed again."
These writ petitions have been filed by the petitioners seeking to question the revised answer key issued by the Rajasthan Subordinate and Ministerial Service Selection Board (‘the Board’) for recruitment to the post of Patwari pursuant to the advertisement dated 17.01.2020, preparation of a fresh answer key considering the objections raised by the petitioners for the disputed questions/erroneous answers based on the material produced by them and reevaluation of the answer-sheets and issuance of a fresh select list of provisionally selected candidates. It is, inter-alia, indicated in the petitions that Advertisement No.3/2019 was issued by the Board inviting online applications for direct recruitment on the post of Patwari, competitive written examination was held in four shifts pursuant to the advertisement on 23.10.2021; the preliminary answer key was issued by the Board on 23.10.2021 and a press-note was published, whereby online objections towards preliminary answer key were called from the candidates with their respective supporting materials. The final answer key was issued by the Board on 25.01.2022 on the basis of decision taken by the Expert Committee on the objections raised by the candidates and list of two times provisionally selected candidates was issued for the purpose of verification of documents and credentials of the candidates. The petitioners have questioned the validity of large number of questions/final answers and/or the deletion of particular (8 of 16) [CW-3959/2022] questions, based on the opinion of the Expert Committee. During the course of submissions, the petitioners confined their submissions to Questions No.76 and 86 of Question Booklet No.43) and 15 ((Master Question Booklet Question No.65) of Question Booklet Series-104B, Questions No.135 and 141 of Question Booklet Series-104C and Questions No.69, 76 and 98 of The Board, which had appeared on Caveat, was directed to produce the experts’ opinion on the questions alongwith supporting material for perusal of the Court, which has been produced by the Board. Learned counsel for the parties were heard on various The petitioners have filed extracts from books/material seeking to support their contentions in relation to the validity of the questions/ answers and the decision of the expert committee It would be appropriate to reproduce the disputed questions, the final answer based on decision of the expert committee and view of the expert committee: - Question No.76 of Question Booklet Series-104A: 76. From the given pairs of words you have to select the pair which is related in the same way as the words of the first pair. Final Answer based on decision of the expert committee: (A) (9 of 16) [CW-3959/2022] View of the Expert Committee: Initially the answer was (D). The Expert Committee opined that option (A) is more appropriate than option (D) because word processor is a computer programme generally used to write or process words, but as Music Comes from Guitar, water comes from Tank. Question No.86 of Question Booklet Series-104A: 86. Input : more fight cats cough sough acts idea. Which of the following steps would be the last step for this input? Final Answer based on decision of the expert committee: (C) View of the Expert Committee: The Experts, after indicating various steps, came to the conclusion with regard to correct answer by indicating as under: I. Cough more fight cats sough acts idea II. Cough fight sought more cats acts idea III. Cough fight sough acts more cats idea IV. Cough fight sough acts cats more idea V. Cough fight sough acts cats idea more” Question No.43 in Master Question Booklet (Question 141. O;kdj.k dh n`f’V ls fuEu esa dkSu lk 'kq) okD; gS\ (A) eSaus bl dke esa cM+h v”kqf) dhA (B) yM+dk feBkbZ ysdj Hkkxrk gqvk ?kj vk;kA (C) eSa viuh ckr ds Li’Vhdj.k ds fy, rS;kj gw¡A (D) jke dk ohj&xkFkk jkek;.k esa gSA Final Answer based on decision of the expert committee: (A) [As Question No.65 in Master Question Booklet (Question No.15 15. The survey was conducted under the government of U.P. (A) Definitely true (B) Data inadequate (C) Probably true (D) Probably false Final Answer based on decision of the expert committee: (A) [As Qua both these questions, the petitioners claim that the answers must be different from what was indicated in the preliminary answer key, and the final answer key, however, as the petitioners had not raised any objection qua the preliminary answer key itself, though the answer now claimed by them is different from the preliminary answer key itself, despite grant of the opportunity, in absence of any objection to the preliminary answer key, the plea raised by the petitioners now cannot be countenanced, as the objections as raised were not before the Question No.135 of Question Booklet Series-104C: 135. Where is the cave of ‘Saint Peepa’? Final Answer based on decision of the expert committee: (D) View of the Expert Committee: The Expert Committee referring to jktLFkku dk bfrgkl ,oa laLd`fr d{kk 10 and jktLFkku&bfrgkl ,oa laLd`fr ,ulkbDykihfM;k by Dr. Hukamchand Jain and Narayan Mali, came to the conclusion that correct answer is (D). (11 of 16) [CW-3959/2022] Though the petitioners have also placed on record certain material in support of their contentions that answer “B” is correct, however, as the Expert Committee has after taking into consideration the material, as noticed herein before, and the material produced by the petitioners, have come to a particular conclusion, there is apparently no reason for this Court to substitute its opinion. Question No.141 of Question Booklet Series-104C: 141. Jogi caste of Alwar district play which of the following Final Answer based on decision of the expert committee: (B) The petitioners have claimed that answer “C” is the correct answer, however, they did not raise any objection to the preliminary answer key, which answer has been maintained in the final answer key by the Expert based on the material i.e. musical repertoire of Jogi community of the Eastern Rajasthan. In absence of any objections raised to the preliminary answer key, which answer has been maintained, the petitioners cannot be heard in this regard. Question No.69 of Question Booklet Series-104D: 69. An Excel Workbook is a collection of (C) Charts and Worksheets (D) None of these Final Answer based on decision of the expert committee: (B) (12 of 16) [CW-3959/2022] The Expert Committee has relied on NCERT Book Computerized Accounting System Class 12 th with the indication as “A file in excel is known as a workbook. A workbook is a collection of number of worksheets.” It appears that the Expert Committee has misconstrued the question itself as the question related to the ‘excel workbook’, whereas the material indicated, pertains to a file in Excel only. The material produced by the petitioners published by Vardhman Mahaveer Open University, Kota indicates answer “C”, which material apparently has not been considered by the Expert Committee and, therefore, the same requires a re-look. Question No.76 of Question Booklet Series-104D: 76. In the following letter series, some of the letters are missing which are given in that order as one of the alternatives below it. Choose the correct alternative. a _ bca _ bcab _ ca - bc Final Answer based on decision of the expert committee: Deleted Counsel for the petitioners made objections regarding deletion of the question, however, failed to produce any material in support of the challenge laid, as such plea raised by the counsel for the petitioners cannot be countenanced. Question No.98 of Question Booklet Series-104D: 98. If ‘water’ is called ‘food’, ‘food’ is called ‘tree’, ‘tree’ is called ’sky’, ‘sky’ is called ‘wall’, on which of the following grows a fruit? (C) Tree D) None of these Final Answer based on decision of the expert committee: (B) No material was produced by the respondents in support of the above change of the option. Learned counsel for the respondent Board fairly conceded that the Board will re-consider the option, as indicated, taking into consideration the objections raised in the petition in this regard. From overall consideration of all the questions regarding which the petitioners have raised objections, except for Question No.69 of Question Booklet Series-104D and Question No.98 of Question Booklet Series-104D, regarding which the counsel appearing for the Board himself conceded that same required reconsideration, the petitioners have failed to make out any case for interference. This Court in Phoosgir & Ors. vs. State of Rajasthan & Ors. : S.B. Civil Writ Petition No.17265/2021 and other connected matters decided on 23.03.2022, in a recruitment related to Agriculture Supervisor, came to the following conclusion: - “From the above, it is apparent that the expert committee has thoroughly examined the objections as raised by the petitioners and have reached to a particular conclusion. The petitioners have made submissions based on the material produced by them in support of their claim in relation to each question and the expert committee has referred to / relied on material in support of the conclusion arrived at by them. As out of two materials produced by the petitioners and considered by the expert committee, which material should be relied on, essentially is in the domain of the expert committee and this Court, possibly cannot after the expert committee has arrived at a particular conclusion, opine otherwise, unless the decision made thereon is found to be wholly arbitrary and/ or contrary to the material relied on, which in the present case does not appear to be the case. The parameters for exercise of the jurisdiction by this Court, qua the expert committee opinion, have been repeatedly laid down by the Hon’ble Supreme Court and Division bench of this Court. The principle laid down by the Hon’ble Supreme Court, the latest being in the case of Vikesh Kumar Gupta & Anr. v. State of Rajasthan & Ors. : (2021) 2 SCC 309 as followed by the Division Bench in Rajkamal Basitha v. Rajasthan High Court, Jodhpur & Ors. : D.B.C.W.P. No.11347/2021, decided on 21.02.2022 (at Jaipur Bench) is well settled. The Division Bench in the case of Rajkamal Basitha (supra) observed as "It is well settled through series of judgments of the Supreme Court that the judicial review of the decision of the examining body be it in the filed of education or in the recruitment to the public employment, is extremely limited. Particularly when the examination is being conducted by an expert body and disputed questions are scanned by specially constituted expert committee, the Courts are extremely slow in interfering with the decisions of such bodies. Unless it is pointed out that there is a glaring error or an irrational decision has been rendered the Court in exercise of its writ jurisdiction under Articles 226 and 227 of the Constitution of India would not interfere." Prior to that in RPSC v. Pankaj Raj : D.B.S.A.W. No.697/2019, decided on 29.05.2019 (at Jaipur Bench), the Division Bench while setting aside the judgment of the learned Single, inter-alia, observed as under :- "The impugned judgment in this Court's opinion is clearly erroneous inasmuch as the court has unwittingly donned the robe of the decision maker: to wit, that of an expert, in art, in concluding that one of the choices was defective (question No.11) and that the RPSC's explanation about a misprint was irrelevant, because the answer was wrongly given. These conclusions the court cannot arrive at, as they amount to primary decision making- a task which cannot be undertaken under Article 226. The impugned judgment also overlooked the salutary rule that in the event of doubt, "the benefit ought to go to the examination authority rather than to the candidate" (Ran Vijay, supra)." In another Division Bench judgment in Jagdish Kumar Choudhary & Ors. v. Rajasthan Public Service Commission : D.B.S.A.W. No.447/2020, decided on 21.10.2021, a case where the learned Single Judge had interfered with the decision of the expert committee, it was observed by the Division Bench as under:- "In our view, the learned Single Judge ought not to have interfered with the final conclusion of the expert body duly constituted by the Rajasthan Public Service Commission having expertise in the field. It is not necessary to refer to large number of decisions of this Court as well as of Supreme Court which essentially lay down that the interference by the High Court in matters of education and other technical fields should be kept to the minimum. Short reference to the decision of the (15 of 16) [CW-3959/2022] Supreme Court in the case of Richal & Ors. Vs. SCC 81] would be sufficient." Very recently, when the learned Single Judge interfered with the decision made by the expert committee, in relation to Competitive Examination held by the RPSC, the Division Bench in RPSC v. Ankit Sharma : D.B.S.A.W. No.429/2022, in its order dated 23.02.2022, after referring to the judgments in Ran Vijay Singh v. State of U.P. & Ors. : (2018) 2 SCC 357, UPPSC v. Rahul Singh : (2018) 7 SCC 254, Vikesh Kumar Gupta (supra), Bihar Staff Selection Commission & Ors. v. Arun Kumar & Ors. : (2020) 6 SCC 362, inter-alia, observed while staying the order of the learned Single Judge, as "14. We have referred to the consistent trend of the case law coming from the Supreme Court on the subject. Broadly the approach in such situation is that the scope of judicial review against expert’s opinion is extremely limited. There is a requirement of finality to the process of public employment. This is not to suggest that judicial review is completely shutout; it cannot be. However unless the situation presents a clear cut, black and white, open and shut choice of the decision of the expert body being palpably wrong, the Court would not interfere. An element of tolerance to the minor error or calibration is discernible since achieving certainty and finality is also important. The finality and perfection are sworn enemies. 15. With this legal clarity if we revert back to the questions with respect to which the learned Judge objected to the conclusions of RPSC, none of these questions would prima facie pass the muster of extremely high threshold provided by the Supreme Court in series of judgments noted above. In all cases the learned Single Judge has gone on at considerable length to discuss the view point of the petitioners and material produced by them in support of their contentions, what the expert committee had taken into account and why in the opinion of the learned Judge such conclusions were wrong. At this stage we are not inclined to go into these questions threadbare since we do not propose and we cannot decide these appeals finally. Nevertheless we have strong prima facie belief that the learned Judge had exceeded the scope of writ jurisdiction in the present case. No legal or factual malafides are demonstrated nor procedural illegality established. It may be that in some cases there is a grey area. That by itself would not be sufficient for the writ court to upturn the decision of the expert’s body." (16 of 16) [CW-3959/2022] The Special Leave Petition filed against the Division Bench order came to be rejected by the Hon’ble Supreme Court on The above observations and the principle laid down therein, apply with all force to the present case as well. In view of above factual and legal position, wherein except for Questions No.69 and 98 of Question Booklet Series-104D, wherein for question No.98 of Booklet Series-104D, counsel for the Board himself has conceded , none of the objections raised by the candidates fall within the parameters as laid down by the Hon’ble Supreme Court and Division Bench of this Court and, therefore, except for the two questions, no case for interference is made out. Consequently, the writ petitions are partly allowed. The respondent Board is directed to get Questions No.69 and 98 of Booklet Series-104D and the said questions which are differently numbered in other Booklet Series, re-examined by the Experts, other than those, who had already examined the questions on the earlier occasion and based on their conclusion, amend the final answer key and give effect to the marks obtained by the candidates and other consequential changes in the result. The objections raised in relation to rest of the questions are rejected.
The Rajasthan High Court recently ordered the government board that hires people, called the Rajasthan Subordinate and Ministerial Service Selection Board, to look again at some questions from a job test for the Patwari position. They want different experts to check these questions. The Court ordered that once these experts decide, the Board must change the official answer key. This means they will adjust candidates' scores and make any other necessary changes to the test results. This written test was given at four different times. The Board released the official answer key on January 25, 2022. They had created this key after an expert group looked at complaints from the test-takers. The Board also released a list of candidates who were chosen temporarily, so their documents and qualifications could be checked. Many candidates filed official court requests, called "writ petitions," to challenge the updated answer key from the Board. These requests asked for a new answer key to be made. They wanted this new key to consider their complaints about certain questions and wrong answers, based on the evidence they provided. They also asked for their test papers to be graded again and for a new list of temporarily selected candidates to be released. The candidates also argued that many questions, the official answers, or the removal of some questions were not fair or correct, disagreeing with the expert group's view. Justice Arun Bansali looked at these court requests and agreed with some parts of them, but not all. He stated: "The Board is ordered to have questions number 69 and 98 from test booklet series 104D, and the same questions with different numbers in other test versions, re-examined by new experts. These new experts must be different from those who checked the questions before. Based on what these experts decide, the Board must change the final answer key, adjust the candidates' scores, and make any other necessary changes to the results. The complaints about all other questions were rejected." The court referred to a previous case called Phoosgir & Others v. State of Rajasthan & Others. In that case, the court had said that it's usually not enough for a court to simply go against what a group of experts has decided, especially when the issue isn't completely clear. After carefully reviewing all the questions that the candidates had argued about, the court said: "After looking at all the questions that the candidates complained about, the court found that there was no strong reason for it to get involved, except for Questions No. 69 and 98 from test booklet series 104D. The lawyer for the Board even agreed that these two specific questions needed to be reviewed again."
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438 CR.P.C. No. - 20138 of 2021 Counsel for Applicant :- Nabi Ullah Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record. The present application has been moved seeking anticipatory bail in Case Crime no. 915/2019, under Sections 147, 148, 149, 188, 153A, 298, 304, 332, 353 I.P.C. and Section 7 of Criminal Varanasi with the prayer that in the event of arrest, applicant may be released on bail. It has been argued by the learned counsel for the applicant that applicant is innocent and he has an apprehension that he may be arrested in the above-mentioned case, whereas there is no credible evidence against him. It has further been submitted that applicant has no criminal antecedents and that no coercive process has been issued against the applicant so far. Learned counsel has submitted that applicant is not named in FIR and that the FIR was lodged against 16 named and some unknown persons alleging that despite proclamation under Section 144 Cr.P.C., accused persons have tried to incite religious sentiments by raising anti-national slogans. It was submitted that applicant has been falsely implicated in this case during investigation merely on the basis of suspicion and that no specific role has been assigned to the applicant. It was submitted that similarly placed co-accused Ashraf and Ashraf Ali Khan have already been granted anticipatory bail by co- ordinate Benches of this Court, copies of which are on record. It was also submitted that applicant undertakes to co-operate during investigation and trial and he would appear as and when required by the investigating agency or Court. It has been stated that in case, the applicant is granted anticipatory bail, he shall not misuse the liberty of bail and will co-operate with the investigation and would obey all conditions of bail. Learned A.G.A. has opposed the application for anticipatory It may be stated that in case of Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694, it has been held by Hon'ble Supreme Court that while deciding anticipatory bail, Court must consider nature and gravity of accusation, antecedent of accused, possibility of accused to flee from justice and that Court must evaluate entire available material against the accused carefully and that the exact role of the accused has also to be taken into consideration. In the instant case, considering the settled principle of law regarding anticipatory bail, submissions of the learned counsel for the parties, nature of accusation, role of applicant and all attending facts and circumstances of the case, without expressing any opinion on merit of the case, a case for anticipatory bail is made out. The anticipatory bail application is allowed. In the event of arrest of the applicant- Mohammad Kaif involved in the aforesaid case crime shall be released on anticipatory bail on his furnishing a personal bond of Rs. 50,000/- with two sureties each in the like amount to the satisfaction of the Station House Officer of the police station concerned with the following conditions :- (i) the applicant shall make himself available for interrogation by a police officer as and when required; (ii) the applicant shall not directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her/them from disclosing such facts to the Court or to any police officer; (iii) the applicant would co-operate during investigation and trial and would not misuse the liberty of bail. In default of any of the conditions, the Investigating Officer/prosecution shall be at liberty to file appropriate application for cancellation of anticipatory bail granted to the applicant.
The Allahabad High Court recently allowed Mohammad Kaif to get anticipatory bail. This means he won't be arrested right away. Kaif was accused of trying to stir up religious feelings by shouting slogans against the country during protests against the CAA law. Justice Raj Beer Singh and his court looked at the established legal rules for anticipatory bail. They also considered what the lawyers for both sides said, what Kaif was accused of, his part in the events, and all the details of the case. The court decided that Kaif should be granted anticipatory bail. Before this, Kaif had asked the court for anticipatory bail. His case involved many charges under different sections of the Indian Penal Code (I.P.C.) and Section 7 of the Criminal Law Amendment Act. Nabi Ullah, Kaif's lawyer, argued that Kaif was innocent. He stated that Kaif feared he might be arrested in the case, even though there was no reliable proof against him. The lawyer also said that Kaif had no past criminal record. No arrest warrant or official order for his capture had been made yet. Furthermore, Kaif was not even mentioned in the initial police report, called the FIR. This report was filed against 16 named people and some unknown individuals. It claimed that even with an order preventing large gatherings (Section 144), the accused tried to stir up religious feelings by shouting slogans against the country. Kaif's lawyer also argued that his client had been wrongly involved in this case during the investigation. He claimed it was based only on suspicion, and no clear part in the alleged acts had been given to Kaif. The lawyer pointed out that other people accused of similar actions, Ashraf and Ashraf Ali Khan, had already received anticipatory bail from other judges in the same court. Finally, Kaif promised to help during the police investigation and the trial. He also said he would appear whenever the police or the court asked him to. When giving Kaif bail, the Court mentioned a past decision by India's Supreme Court. This ruling stated that when deciding on anticipatory bail, a court must consider how serious the accusation is, the accused person's past record, and if they might try to run away. The court must also carefully look at all the available evidence and the specific part the accused played in the events. The Court approved Kaif's request for anticipatory bail. However, he had to sign a personal agreement (a bond) for Rs. 50,000. Also, two other people had to guarantee the same amount. This arrangement had to be approved by the head of the local police station.
438 CR.P.C. No. - 20138 of 2021 Counsel for Applicant :- Nabi Ullah Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record. The present application has been moved seeking anticipatory bail in Case Crime no. 915/2019, under Sections 147, 148, 149, 188, 153A, 298, 304, 332, 353 I.P.C. and Section 7 of Criminal Varanasi with the prayer that in the event of arrest, applicant may be released on bail. It has been argued by the learned counsel for the applicant that applicant is innocent and he has an apprehension that he may be arrested in the above-mentioned case, whereas there is no credible evidence against him. It has further been submitted that applicant has no criminal antecedents and that no coercive process has been issued against the applicant so far. Learned counsel has submitted that applicant is not named in FIR and that the FIR was lodged against 16 named and some unknown persons alleging that despite proclamation under Section 144 Cr.P.C., accused persons have tried to incite religious sentiments by raising anti-national slogans. It was submitted that applicant has been falsely implicated in this case during investigation merely on the basis of suspicion and that no specific role has been assigned to the applicant. It was submitted that similarly placed co-accused Ashraf and Ashraf Ali Khan have already been granted anticipatory bail by co- ordinate Benches of this Court, copies of which are on record. It was also submitted that applicant undertakes to co-operate during investigation and trial and he would appear as and when required by the investigating agency or Court. It has been stated that in case, the applicant is granted anticipatory bail, he shall not misuse the liberty of bail and will co-operate with the investigation and would obey all conditions of bail. Learned A.G.A. has opposed the application for anticipatory It may be stated that in case of Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694, it has been held by Hon'ble Supreme Court that while deciding anticipatory bail, Court must consider nature and gravity of accusation, antecedent of accused, possibility of accused to flee from justice and that Court must evaluate entire available material against the accused carefully and that the exact role of the accused has also to be taken into consideration. In the instant case, considering the settled principle of law regarding anticipatory bail, submissions of the learned counsel for the parties, nature of accusation, role of applicant and all attending facts and circumstances of the case, without expressing any opinion on merit of the case, a case for anticipatory bail is made out. The anticipatory bail application is allowed. In the event of arrest of the applicant- Mohammad Kaif involved in the aforesaid case crime shall be released on anticipatory bail on his furnishing a personal bond of Rs. 50,000/- with two sureties each in the like amount to the satisfaction of the Station House Officer of the police station concerned with the following conditions :- (i) the applicant shall make himself available for interrogation by a police officer as and when required; (ii) the applicant shall not directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her/them from disclosing such facts to the Court or to any police officer; (iii) the applicant would co-operate during investigation and trial and would not misuse the liberty of bail. In default of any of the conditions, the Investigating Officer/prosecution shall be at liberty to file appropriate application for cancellation of anticipatory bail granted to the applicant.
The Allahabad High Court recently allowed Mohammad Kaif to get anticipatory bail. This means he won't be arrested right away. Kaif was accused of trying to stir up religious feelings by shouting slogans against the country during protests against the CAA law. Justice Raj Beer Singh and his court looked at the established legal rules for anticipatory bail. They also considered what the lawyers for both sides said, what Kaif was accused of, his part in the events, and all the details of the case. The court decided that Kaif should be granted anticipatory bail. Before this, Kaif had asked the court for anticipatory bail. His case involved many charges under different sections of the Indian Penal Code (I.P.C.) and Section 7 of the Criminal Law Amendment Act. Nabi Ullah, Kaif's lawyer, argued that Kaif was innocent. He stated that Kaif feared he might be arrested in the case, even though there was no reliable proof against him. The lawyer also said that Kaif had no past criminal record. No arrest warrant or official order for his capture had been made yet. Furthermore, Kaif was not even mentioned in the initial police report, called the FIR. This report was filed against 16 named people and some unknown individuals. It claimed that even with an order preventing large gatherings (Section 144), the accused tried to stir up religious feelings by shouting slogans against the country. Kaif's lawyer also argued that his client had been wrongly involved in this case during the investigation. He claimed it was based only on suspicion, and no clear part in the alleged acts had been given to Kaif. The lawyer pointed out that other people accused of similar actions, Ashraf and Ashraf Ali Khan, had already received anticipatory bail from other judges in the same court. Finally, Kaif promised to help during the police investigation and the trial. He also said he would appear whenever the police or the court asked him to. When giving Kaif bail, the Court mentioned a past decision by India's Supreme Court. This ruling stated that when deciding on anticipatory bail, a court must consider how serious the accusation is, the accused person's past record, and if they might try to run away. The court must also carefully look at all the available evidence and the specific part the accused played in the events. The Court approved Kaif's request for anticipatory bail. However, he had to sign a personal agreement (a bond) for Rs. 50,000. Also, two other people had to guarantee the same amount. This arrangement had to be approved by the head of the local police station.
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1. The facts and circumstances leading to the recall of the Judgment dated 28.10.2020 and the Order dated 08.12.2020 and issuance of notice for initiation of contempt proceedings against the alleged contemnor Perry Kansagra (hereinafter referred to as Perry) were dealt with in sufficient detail in paragraphs 1 to 33 of the Order dated 7.10.2021 passed by a bench of three judges of this Court in Miscellaneous Application No.1167 of 2021 in Civil Appeal No.3559 of 2020. For avoiding repetition of the basic facts, paragraphs 1 to 33 of said Order dated 7.10.2021 be read as part of this Order. 2. After discussing the relevant facts and circumstances in aforesaid paragraphs Indu Marwah1 to 33, paragraphs 34 to 36 of the Order dated 7.10.2021 set out the essential features of the matter as under:- “34. The documents and the developments referred to hereinabove (i) Perry had given an unequivocal undertaking to the High Court that he would submit to the jurisdiction of the Indian Courts. He had also given a solemn undertaking to this Court that he would comply with the Order dated 28.10.2020 in addition to the Judgment dated (ii) In response to a specific submission raised in Miscellaneous Application No.2140 of 2020 (quoted in paragraph 16 hereinabove), it was submitted by Perry that he had subjected himself to the jurisdiction of this Court. While dealing with the rival submissions in the Order dated 8.12.2020, this Court made it clear that the undertaking given by Perry to the High Court would continue to be operative, in addition to the undertaking given to this Court. (iii) The Judgment dated 28.10.2020 had called upon Perry to obtain a Mirror Order’ from the concerned Court in Nairobi to reflect the directions contained in the Judgment dated 28.10.2020. Thereafter, the Order dated 9.11.2020 passed by the High Court of Kenya at Nairobi along with the relevant application moved by Perry seeking registration of the Judgment dated 28.10.2020, was filed in this Court. (iv) There was a dispute whether the registration granted vide order dated 9.11.2020 by the High Court of Kenya at Nairobi amounted to fulfilling the requirement of a “Mirror Order’. The submissions on the point were dealt with in paragraphs 8 and 9 of the Order dated 8. 12.2020. The learned counsel appearing for Perry had relied upon the opinion given by M/s. GMC Advocates which in turn had relied upon the decision of the High Court of Kenya at Nairobi in Re: Matter of I W P (Infant) [2013] eKLR to submit that the registration itself was a “Mirror Order” in compliance of the requirements of the Judgment Relying on the submissions so advanced on behalf of Perry and in deference to the Order dated 9.11.2020 passed by the High Court of Kenya at Nairobi, in paragraph 10 of the Order dated 8.12.2020, this Court observed that the registration of the Judgment of this Court by the High Court of Kenya at Nairobi was sufficient compliance of the directions to obtain a “Mirror Order” issued from a Competent Court in Kenya. (v) The Judgment dated 28.10.2020 and the Order dated 8.12.2020 passed by this Court were thus premised on the submission that the Order dated 9.11.2020 passed by the High Court of Kenya at Nairobi while registering the Judgment dated 28.10.2020 passed by this Court was in fact the “Mirror Order’. (vi) It now transpires that by a subsequent Order dated 21.5.2021, the High Court of Kenya at Nairobi in Paragraph 13 of its order observed that the judgment of this Court was not registrable and dismissed the Originating Summons dated 30.10.2020 filed by Perry. (vii) At no stage Perry brought this development to the notice of this Court that the Originating Summons moved by him seeking registration of the Judgment dated 28.10.2020 passed by this Court was dismissed by the High Court of Kenya at Nairobi on 21.5.2021. Having submitted to the jurisdiction of the Indian Courts it was the bounden duty of Perry to keep this Court appraised of all the developments particularly when the “Mirror Order” was the fulcrum on the basis of which this Court handed over to him the custody of (viii) This infraction gets more pronounced in the light of the stand taken in his Affidavit dated 5.8.2021 filed in this Court and referred to in Paragraph 22 hereinabove. In that affidavit Perry unequivocally stated that he had not even the remotest intention to disobey the Order passed by this Court including the Judgment dated 28.10.2020. Yet, something as basic and fundamental like the Order dated 21.05.2021 was not brought to the notice of this Court. Logically, Perry should have brought back Aditya to this country so that status quo ante could be restored and appropriate orders could thereafter be passed by this (ix) Miscellaneous Application No.1167 of 2021 filed by Smriti had annexed e-mails exchanged between her and Perry and prayed that Perry be directed to comply with directions regarding vacation access. In response, apart from stating that he had no intentions to disobey the orders passed by this Court, Perry voiced concern about sending Aditya to India. Being well aware of the conditions in this Country, a solution was devised by this Court in its Order dated 11.08.2021 and certain directions to facilitate the entry of Aditya into and his exit from India in a safe manner were issued. Pertinently on 11.08.2021, the attention of this Court was not invited to the fact that the Situational Report dated 09.08.2021 as referred to hereinabove was made or that the matter was being looked into by the concerned authorities in Kenya. (X) Despite clear directions issued in the Order dated 11.08.2021 Perry had not taken any steps to comply with the Order. As a matter of fact, by the time the matter was taken up for further hearing on 16.08.2021, Perry sought to withdraw the authorization in favour of the learned counsel who were all the while representing him before (XI) As disclosed in I.A. 100550 of 2021 week-end Skype meetings between Smriti and Aditya were not facilitated from the week-end of 14.08.2021 and 15.08.2021. Perry also blocked all means of communications with Smriti. Though in law the learned advocates who had entered appearance on behalf of Perry would continue to represent him, notice was additionally directed to be served on Perry through Indian embassy of Nairobi. (XII) In the light of the defiant attitude exhibited by Perry and his refusal to abide by the Orders passed by this court, ad-interim relief in terms of prayers (d) (e) and (f) made by Smriti in her I.A. No.100550 of 2021 was granted by this Court vide its order dated 17.08.2021. (XIII) Finally, Petition No.E301 of 2021 and -Notice of Motion were moved on behalf of Perry, filed in the High Court of Kenya at Nairobi on 26.08.2021. The stand taken by Perry in said Petition and Notice of Motion is that it would be humiliating to compel Aditya to take OCI Card; that wishes of Aditya were not ascertained by this Court; that there was no valid Mirror Order and that the orders passed by this Court were without jurisdiction. He has prayed for declaration that there existed no valid “Mirror Order” and in the circumstances the orders passed by this Court are incapable of compliance and/or 35. These developments not only show the defiant and contumacious posture now adopted by Perry but prima facie support the submissions of Smriti made in Interim Applications referred to in paragraphs 25, 27, and 28 herein above. There appears to be concrete material and reason to believe that it was a well-planned conspiracy on part of Perry to persuade this Court to pass orders in his favour and allow him the custody of Aditya and then turn around and defy the Orders of this Court. 36. It is fundamental that a party approaching the Court must come with clean hands, more so in child custody matters. Any fraudulent conduct based on which the custody of a minor is obtained under the orders of the Court, would negate and nullify the element of trust reposed by the Court in the concerned person. Wherever the custody of a minor is a matter of dispute between the parents or the concerned parties, the primary custody of the minor, in parens patriae jurisdiction, is with the Court which may then hand over the custody to the person who in the eyes of the Court, would be the most suitable person. Any action initiated to obtain such custody from the Court with fraudulent conduct and design would be a fraud on the process of the Court.” 3. Thereafter, the relevant decisions on the point as well as the submissions of the learned Solicitor General, Mr. Amarjit Singh Chandhiok and Ms. Sonia Mathur, learned Senior Advocates appearing for Smriti Madan Kansagra (hereinafter referred to as Smriti) and Mr. Anunaya Mehta, learned Advocate were recorded in the Order dated 7.10.2021 and it was concluded: - “39. Though, at every juncture solemn undertakings were given by Perry to the High Court and this Court, such undertakings were not only flagrantly violated but a stand is now taken challenging the very jurisdiction of the Indian Courts, despite having submitted himself to the jurisdiction of the Indian Courts. Such conduct, prime facie, can certainly be said to be contumacious calling for an action in contempt jurisdiction. Moreover, the non-disclosure of material facts by Perry at the relevant junctures also shows that he approached the Indian Courts with unclean hands. 40. It was only on the basis of the solemn undertakings given by Perry and the order dated 09.11.2020 passed by the High Court of Kenya at Nairobi which was projected to be a “Mirror Order” in compliance of the directions issued by this Court, that the custody of Aditya was directed to be handed over to Perry. Since the false and fraudulent representations made by Perry were the foundation, on the basis of which this Court was persuaded to handover custody of Aditya to him, it shall be the duty of this Court to nullify, in every way, the effect and impact of the orders which were obtained by playing fraud upon the Court. All the decisions referred to hereinabove point in that direction. This Court would therefore be well within its power and justified to recall all the orders and continue to assume jurisdiction to ensure that the situation as it prevailed prior to the passing of the orders by the Trial Court, the High Court and this Court, gets restored, whereafter appropriate decision can be taken in parens patriae jurisdiction. 41. It is true that Aditya is now in Kenya. But he was taken to Kenya only on the basis of fraudulently obtained orders from this Court. In our considered view, the Indian Courts which were the Courts of first contact and had complete jurisdiction over Aditya, must continue to exercise such power and jurisdiction to correct the wrongs which occurred as a result of fraudulent conduct on part of Perry. It may be stated here that at every juncture, welfare of Aditya was and will always continue to be the primary consideration for the Indian Courts. He was interviewed by very competent and qualified Counsellors whose reports and assessments have been part of the record. Aditya was also interviewed by the Trial Court, the High Court and this Court. At no stage any mistreatment by Smriti was even remotely suggested or adverted to by Aditya. After Aditya is brought back to this country, this Court will certainly have appropriate interactions with Aditya to understand his Wishes while considering his welfare.” 4. In light of the facts and circumstances, following directions were thereafter issued by this Court in said Order dated 7.10.2021: - “42. In the premises, we pass following directions: (A) The Judgment dated 28.10.2020 and the Order dated 08.12.2020 Passed by this Court are recalled. (B) The Guardianship Petition No.53 of 2012 filed by Perry in the District Court, Saket, New Delhi seeking permanent custody of Aditya and the resultant proceedings arising therefrom including MAT APP (F.C) No.3Q of 2018 filed in the High Court, are dismissed. (C) the Orders granting custody having been recalled, the custody of Aditya with Perry is declared to be illegal and ab initio void. (D) Issue notice to Perry as to why proceedings in contempt jurisdiction be not initiated against him for having violated the solemn undertaking given to this Court, returnable on 16th November, 2021. The Registry is directed to register Suo Motu Contempt Case and proceed accordingly. (E) The notice shall additionally be served through e-mail directed at r the e-mail id used by Perry in communicating with Smriti. The details in that behalf shall be furnished to the Registry by Smriti within two days. (F) The Central Bureau of Investigation, New Delhi through its Director is directed to initiate appropriate proceedings by registering criminal proceedings against Perry and to secure and entrust the custody of Aditya to Smriti. (G) The Secretary, Ministry of External Affairs, Government of India, New Delhi and the Indian Embassy in Kenya are directed to ensure that all possible assistance and logistical support is extended to Smriti securing the custody of Aditya. (H) From and out of the amount of Rs.1 crore deposited by Perry in this Court, at this stage, an amount of Rs.25 lakhs be handed over to Smriti towards legal expense incurred or required to be incurred hereafter. Rest of the money shall continue to be kept in deposit with the Registry till further orders.” 5. Pursuant to direction (D) as stated above, the instant Suo-moto Contempt Petition stands registered against Perry. 6. In its Order dated 25.1.2022, while dealing with the instant petition, this “Accordingly, the matter is listed before us today to consider whether charges need to be framed or not. It must a stated here that Mr. Perry Kansagra has chosen not to file any response in the matter. Having considered the entirety of the matter, in our view, case is definitely made out to proceed against Mr. Perry Kansagra in contempt jurisdiction: - i) For having willfully violated the directions issued by this Court, ii) for having acted in breach of solemn undertakings given to the courts including this Court, and; jii) for having obstructed the course of justice and committed criminal contempt of Court. The Registry is, therefore, directed to issue notice to Mr. Perry Kansagra in terms of Rules to Regulate Proceeding for Contempt of the Supreme Court, 1975 in Form I appended to said Rules. The Registry is further directed to quote the relevant portions of Paragraphs 38 to 40 of the order dated 7th October, 2021 as well as the prima facie observations as stated above, warranting initiation. of proceedings in Contempt. Let notice be made returnable on 8 March, 2022. Mr..Perry Kansagra is directed to remain personally present on the next date of hearing. In addition to the regular mode of service, the notice shall be served in the same manner as was done on the earlier occasion and the office of the learned Solicitor General is requested to take appropriate steps in the matter. Mr. Perry Kansagra is at liberty to file response to the proceedings on or before 22™ February, 2022, with advance copy to the other side.” 7. Since despite being served, Perry had not appeared, following order was passed by this Court on 8.3.2022: “While directing initiation of contempt proceedings and issuance of notice in Form-I appended to the Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975, vide order dated 25.01.2022, notice was directed to be issued to Mr. Perry According to the office report, notice has been issued through Ministry of Law & Justice by Speed Post on 03.02.2022 as well as “through e-mail as was done on the earlier occasion”. However, the office report states that status of delivery has not been received from the Ministry of Law & Justice so far. Though the office report indicates that notice was issued through e-mail “as was done on earlier occasion”, for removal of doubts, the Registry is directed to send notice to be served upon Mr. Perry Kansagra through e-mail ID from which communications were received on behalf of Mr. Perry Kansagra. Ms. Sonia Mathur, learned Senior Advocate appearing for the applicant Ms. Smriti Madan Kansagra, submits that it has been four months but Ms. Smriti Madan Kansagra is unaware about the status of proceedings initiated by the Central Bureau of Investigation. We, therefore, call upon the Central Bureau of Investigation to file the Status Report before the next date of hearing. Let an appropriate intimation be sent by the Registry to the Central Bureau of Investigation.” 8. Accordingly, status report was filed by the Central Bureau of Investigation and the matter was taken up on 11.4.2022 when the following order was passed by “Status report has been submitted by the CBI which indicates that Look Out Circular has already been issued by the CBI. A copy of the report be given to Ms. Smriti Madan Kansagra. IA No.53272 of 2022 has been filed by her seeking permission to place on record certain additional documents. Having considered the application, in our view, said documents must be made a part of the record. Reliance is placed by her on the order dated 9.3.2022 passed in SLP (Crl.) No.2018 of 2020, in terms of which in similar circumstances, direction was issued commanding CBI to issue Red Corner Notice to secure the presence of the first respondent who was a foreign national. Ms. Sonia Mathur, learned Senior Advocate prays for similar direction in the instant matter. Paragraph 5 of said order dated 09.03.2022 discloses that there was failure on part of the first respondent-husband to abide by the terms and conditions imposed by the High Court. The observations were made by this Court that such conduct may invite action in contempt jurisdiction. In so far as the instant matter i, concerned, this Court has already issued notice while exercising contempt jurisdiction. The CBI is therefore, directed to issue Red Corner Notice to secure the Presence of Perry Kansagra. Since the minor child was secreted away as a part of design referred to and dealt with in the earlier orders, we also direct the CBI to issue Yellow Corner Notice to secure the presence of the child. As the earlier orders indicate, we have initiated proceedings in contempt petition and have already given sufficient time to Mr. Perry Kansagra to respond to those notices and yet no response has been filed. We, therefore, direct the contempt petition to be listed on 21.04.2022 at 03:00 pm for final disposal.” 9. We heard Ms. Sonia Mathur, learned Senior Advocate for Smriti and Mr. Rajat Nair for Central Bureau of Investigation. Mr. P. K. Manohar, learned Advocate for Perry, however declined to advance any submissions. 10. Ms. Mathur, learned Senior Advocate highlighted the acts of contempt by Perry under two segments namely those prior to July, 2021 and some which were after July, 2021. The acts of contempt as described in the Notes of Arguments submitted on behalf of Smriti were:- “3. In the respectful submission of Smriti, the following are the acts of contempt by Perry prior to July 2021: i. The following are the affidavits/undertakings given by Perry, which have been wilfully breached by him: a. Undertaking/affidavit dated 02.08.2020 given to the Delhi High Court wherein he undertook to “honour and comply with the visitation rights given to Smriti” as well as undertook to “submit to the jurisdiction of the Indian b. Undertaking/affidavit dated 30.10.2020 filed by Perry before this Hon’ble Court pursuant to the judgment dated 28.10.2020 that he would comply with the majority decision dated 28.10.2020 without any demur and in letter and spirit. c. Affidavit dated 20.11.2020 filed by Perry which accompanied the “mirror order” wherein Perry stated that the purported order dated 09.11.2020 passed by the Kenyan High Court was a “mirror order”. d. Perry Kansagra filed and continued to rely on the purported mirror order dated 09.11.2020 in his reply to M.A. No. 2140/2020, Copy of affidavit of compliance dated 20.11.2020 filed by Perry and Copy of Affidavit dated 26.11.2020 in support of the documents filed by e. Affidavit dated 09.12.2020 filed by Perry in compliance of the order dated 08.12.2020 passed by this Hon’ble Court wherein he state that he “shall truly and faithfully abide by the order dated 08.12.2020”. f. The order dated 08.12.2020 accepted the undertaking of Perry Kansagra submitting to the jurisdiction of this ii. Removing Aditya from the Indian jurisdiction on 10.12.2020 based on the aforementioned false undertakings/affidavits and legally untenable purported “mirror order”. iii. Perry’s deliberate failure to comply with the directions to another “mirror order” as directed in paragraph 21 (D) of order dated iv. As is evident from the aforementioned deliberate and wilful conduct Petty, it is most respectfully submitted that Perry kidnapped the child from Indian jurisdiction and removed the child from parens patriae of the Court. Perry has abused the process of this Hon’ble Court. 4. The following are the acts of contempt committed by Perry post i. Refusal to bring Aditya to India for Smriti to avail her visitations in terms of the judgment dated 28.10.2020 and order dated ii. Having the purported “mirror order” dated 09.11.2020 set aside by Kenyan High Court by order dated 21.05.2021. iii. Supressing the order dated 21.05.2021 passed by the Kenyan High Court – Not filing the said order before this Hon’ble Court either voluntarily when the said order was passed or with his reply dated 05.08.2021 to MA No.1167/2021 or with his reply dated 05.08.2021 to MA No.1167/2021 or with application dated 09.08.2021 to place additional documents or with documents filed on 11.08.2021. iv. Refusal by Perry Kansagra to get the child to India to be interviewed by this Hon’ble Court in terms of the order dated v. In Perry’s reply and affidavit dated 05.08.2021 to MA No. 1167/2020, Perry stated that he is complying with the directions of this Hon’ble Court passed on 28.10.2020 and 08.12.2020. vi. Deliberate breach of the order dated 11.08.2021, i.e. not sending Aditya to India on 13.08.2021 and not applying for Aditya’s OCI card at the Indian High Commission at Nairobi, Kenya. vii. Discharging his counsels at a crucial stage on 15.08.2021 i.e. when this Hon’ble Court had listed the matter for compliance the orders dated 11.08.2021, 08.12.2020 and 28.10.2020, and sought the assistance of Perry’s counsels in this regard. viii. Deliberately snapping off all ties between Aditya and Smriti, not only by not sending Aditya to India on 13.08.2021, but also stopping all Skype access from 15.08.2021, thereby deliberately and wilfully breaching the orders dated 28.10.2020 and ix. Initiating proceedings before the Kenyan High Court in violation of his aforementioned undertakings/affidavits and the order dated 17.08.2021 where a world-wide ad interim ex-parte anti suit injunction order was passed by against Perry from proceeding qua the custody/guardianship of Aditya. The tone and tenor of the Perry’s petition, affidavit and notice of motion are contumacious, scandalous and made in an overt attempt to lower the majesty of this Hon’ble Court. x. Obtaining an order dated 30.08.2021 from the Kenyan High Court restraining Smriti from taking Aditya out of Kenya or his custody, in violation of the orders dated 11.08.2021 and 17.08.2021. Perry has deliberately sought to remove this Hon’ble Court as the parens patriae of Aditya. xi. Perry continued and deliberate refusal to appear before this Hon’ble Court from 15.08.2020 (after he discharged his advocates) and blocked Smriti on all usual forms of communication (email and WhatsApp). xii. Perry’s refusing to accept the repeated attempts of the service of the process of this Hon’ble Court in the contempt proceedings. [elaborated in point no.6] xiii. Perry’s continued refusal to appear before this Hon’ble Court in person despite the order dated 18.10.2021, 01.02.2022 and 16.03.2022 passed in SMC No.3 of 2021.” 11. Our attention was also invited to the decisions in a) Hadkinson vs. Hadkinson1, where the court held that the removal of a child by a custodial parent in violation of the orders passed by the court, was contempt of the grossest kind; and that the contemnor would not have any right to be heard until the child was brought back to the jurisdiction of the court; b) Regina vs. Jones (Robert)2, where the Court of Appeal held that the applicant had waived his right to be present at the trial by his conduct in absconding and in such circumstances, the judge had a discretion to allow the trial to proceed in the absence of the applicant; and c) of this Court in the matter of Anil Panjwani3. It was thus submitted that unless and until Aditya was brought back to the jurisdiction of this Court, Perry would not be entitled to be heard in the matter and that the instant contempt proceedings could as well be taken to logical conclusion in his absence. It was further submitted that the conduct of Perry in tendering affidavits and undertakings containing false statements was not only fraudulent but also amounted to perjury and criminal contempt. The decisions of this Court in Dhananjay Sharma v. State of Haryana4, Chandra Shashi v. Anil Kumar Sharma5 and in ABCD v. Union of India6 were relied upon in support of the 12. While considering whether the conduct of Perry was fraudulent or not, this Court had considered various decisions in paragraph 37 of its Order dated 7.10.2021 whereafter it was observed that it would be the duty of this Court to nullify the effect and impact of the orders which were obtained after practising fraud upon the Court. This Court, therefore, recalled the Judgment dated 28.10.2020 and the Order dated 08.12.2020. At the same time, non-disclosure of material facts by Perry at the relevant junctures were also prima facie found to be contumacious. Therefore, the instant proceedings in the contempt jurisdiction were initiated suo moto by this Court. 13. The first set of decisions relied upon by Ms. Mathur deal with the rights of a contemnor or a violator to be heard until such contemnor or violator purges the contempt. Though Ms. Mathur was quite right in her submission, we had adjourned the matter suitably on few occasions so that adequate opportunity could be availed of by Perry and submissions on his behalf could be advanced. Even at the final hearing stage, we had invited Mr. P. K. Manohar, learned Advocate for Perry to advance his submissions which offer, however, was not availed of. 14. The second set of decisions relied upon by Ms. Mathur are on the point whether tendering of affidavits and undertakings containing false statement would amount to criminal contempt or not. At this stage, we may extract following paragraphs from the decision of this Court in ABCD v. Union of India 6 which had considered some of the previous decisions of this Court on the point: 15. Making a false statement on oath is an offence punishable under Section 181 of the IPC while furnishing false information with intent to cause public servant to use his lawful power to the injury of another person is punishable under Section 182 IPC. These offences by virtue of Section 195(1)(a)(i) of the Code can be taken cognizance of by any court only upon a proper complaint in writing as stated in said section. In respect of matters coming under Section 195(1)(b)(i) of the Code, in Pushpadevi M. Jatia v. M.L. Wadhawan [Pushpadevi M. Jatia v. M.L. Wadhawan, (1987) 3 SCC 367 : 1987 SCC (Cri) 526] prosecution was directed to be launched after prima facie satisfaction was recorded by this 16. It has also been laid down by this Court in Chandra Shashi v. Anil Kumar Verma [Chandra Shashi v. Anil Kumar Verma, (1995) 1 SCC 421 : 1995 SCC (Cri) 239] that a person who makes an attempt to deceive the court, interferes with the administration of justice and can be held guilty of contempt of court. In that case a husband who had filed a fabricated document to oppose the prayer of his wife seeking transfer of matrimonial proceedings was found guilty of contempt of court and sentenced to two weeks' imprisonment. It was observed as under: (SCC pp. 423-24 & 427, paras 1-2 & 14) “1. The stream of administration of justice has to remain unpolluted so that purity of court's atmosphere may give vitality to all the organs of the State. Polluters of judicial firmament are, therefore, required to be well taken care of to maintain the sublimity of court's environment; so also to enable it to administer justice fairly and to the satisfaction of all concerned. 2. Anyone who takes recourse to fraud, deflects the course of judicial proceedings; or if anything is done with oblique motive, the same interferes with the administration of justice. Such persons are required to be properly dealt with, not only to punish them for the wrong done, but also to deter others from indulging in similar acts which shake the faith of people in the system of administration of justice. 14. The legal position thus is that if the publication be with intent to deceive the court or one made with an intention to defraud, the same would be contempt, as it would interfere with administration of justice. It would, in any case, tend to interfere with the same. This would definitely be so if a fabricated document is filed with the aforesaid mens rea. In the case at hand the fabricated document was apparently to deceive the court; the intention to defraud is writ large. Anil Kumar is, therefore, guilty of contempt.” 17. In K.D. Sharma v. SAIL [K.D. Sharma v. SAIL, (2008) 12 SCC 481] it was observed: (SCC p. 493, para 39) “39. If the primary object as highlighted in Kensington Income Tax Commrs. [R. v. General Commissioners for Purposes of Income Tax Acts For District of Kensington, ex p Princess Edmond De Polignac, (1917) 1 KB 486 : 86 LJKB 257 : 116 LT 136 (CA)] is kept in mind, an applicant who does not come with candid facts and “clean breast” cannot hold a writ of the court with “soiled hands”. Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, manoeuvring or misrepresentation, which has no place in equitable and prerogative jurisdiction. If the applicant does not disclose all the material facts fairly and truly but states them in a distorted manner and misleads the court, the court has inherent power in order to protect itself and to prevent an abuse of its process to discharge the rule nisi and refuse to proceed further with the examination of the case on merits. If the court does not reject the petition on that ground, the court would be failing in its duty. In fact, such an applicant requires to be dealt with for contempt of court for abusing the process of the court.” 18. In Dhananjay Sharma v. State of Haryana [Dhananjay Sharma v. State of Haryana, (1995) 3 SCC 757 : 1995 SCC (Cri) 608] filing of a false affidavit was the basis for initiation of action in contempt jurisdiction and the persons concerned were punished.” Thereafter, in suo moto exercise of power, proceedings in contempt jurisdiction were initiated against said petitioner. 15. It is thus well settled that a person who makes a false statement before the Court and makes an attempt to deceive the Court, interferes with the administration of justice and is guilty of contempt of Court. The extracted portion above clearly shows that in such circumstances, the Court not only has the inherent power but it would be failing in its duty if the alleged contemnor is not dealt with in contempt jurisdiction for abusing the process of the Court. 16. The essential features of the matter as culled out in paragraph 34 of the Order dated 07.10.2021 were relied upon to arrive at a prima facie observation that Perry was guilty of contempt of Court. Though notice was issued to Perry, no response has been tendered. We find that the material on record clearly shows violation on part of Perry. The observations made in paragraph 34 of the order dated 7.10.2021 were on the basis of record. Having considered the entirety of the matter, in our view, Perry is guilty of having committed criminal contempt of Court apart from the contempt for violating express undertakings given to the Courts, including this Court. We accordingly hold Perry guilty under the Contempt of 17. Though the instant proceedings can be taken to logical conclusion and order of sentence can be awarded even in the absence of Perry, we give final opportunity to Perry to present himself before this Court on 22.07.2022 at 3.00 pm along with Aditya. He shall then have an opportunity to advance appropriate submissions on the issue of punishment to be awarded to him. It shall also be open to Perry to purge himself of contempt in which case a sympathetic view may be taken in the Let copy of this Order be served upon Perry through email ID used by him in serving process upon Smriti. Additionally, a copy shall be given to Mr. P.K. Manohar, learned Advocate. 18. For securing the presence of Perry and Aditya before this Court and for effective implementation of the Orders issued by this Court, the Union agencies including the Central Bureau of Investigation shall have and shall exercise all the powers, not necessarily restricted to the following directions issued in the Order “The Central Bureau of Investigation, New Delhi through its Director is directed to initiate appropriate proceedings by registering criminal proceedings against Perry and to secure and entrust the custody of Aditya to Smriti. The Secretary, Ministry of External Affairs, Government of India, New Delhi and the Indian Embassy in Kenya are directed to ensure that all possible assistance and logistical support is extended to Smriti in securing the custody of Aditya.” It must be stated here that the learned Solicitor General had assured this Court during the hearings at the interim stages that every possible help and assistance shall be extended by the Union agencies and the Indian Embassy in Kenya in securing the presence of Perry and Aditya before this Court. 19. List the matter on 22.07.2022 at 3.00 pm.
The Supreme Court said that giving official written statements or promises that contain lies to the court counts as "contempt of court," which means showing disrespect to the court or messing with its work. Justices UU Lalit and PS Narasimha noted that if someone lies to the court and tries to trick it, they get in the way of fairness and justice. This makes them guilty of disrespecting the court. Last year, the Court had taken back a decision that gave a child into the care of a Kenyan citizen of Indian background. This was because the Court found he had tricked it and hidden important information. The Court also started legal action for disrespect against one of the people involved, because they had broken promises made to the court. When looking at this case, the court remembered an earlier decision about whether giving official statements and promises that contain lies would count as serious disrespect to the court or not. Referring to an earlier case called ABCD v. Union of India, the court stated: "15. So, it is clearly established that a person who lies to the Court and tries to trick it, interferes with how justice is carried out and is guilty of disrespecting the court. The part quoted above clearly shows that in such situations, the Court not only has the natural power to act, but it would be failing in its duty if the person accused of disrespecting the court is not dealt with through legal action for misusing the court's process." The judges therefore decided that Perry was guilty of serious disrespect to the court. This was in addition to the disrespect for breaking clear promises made to the Courts, including this Court. The court noted, "Even though this current case can be finished and a punishment can be decided even if Perry is not here, we are giving Perry one last chance to show up in this Court on July 22, 2022, at 3:00 p.m. along with .... He will then have a chance to make proper arguments about what punishment he should receive. It will also be possible for Perry to correct his disrespectful actions, in which case a more understanding view might be taken." Case details About Perry Kansagra | (Supreme Court reference) 576 | SMC(C) 3 of 2021 | July 11, 2022 Judges: Justices UU Lalit and PS Narasimha Headnotes (Key Legal Points) Contempt of Courts Act, 1971 - If someone lies to the Court and tries to trick it, they get in the way of justice and are guilty of disrespecting the Court. The Court not only has the natural power to act, but it would be failing in its duty if the person accused of disrespecting it is not dealt with through legal action for misusing the court's process.
1. The facts and circumstances leading to the recall of the Judgment dated 28.10.2020 and the Order dated 08.12.2020 and issuance of notice for initiation of contempt proceedings against the alleged contemnor Perry Kansagra (hereinafter referred to as Perry) were dealt with in sufficient detail in paragraphs 1 to 33 of the Order dated 7.10.2021 passed by a bench of three judges of this Court in Miscellaneous Application No.1167 of 2021 in Civil Appeal No.3559 of 2020. For avoiding repetition of the basic facts, paragraphs 1 to 33 of said Order dated 7.10.2021 be read as part of this Order. 2. After discussing the relevant facts and circumstances in aforesaid paragraphs Indu Marwah1 to 33, paragraphs 34 to 36 of the Order dated 7.10.2021 set out the essential features of the matter as under:- “34. The documents and the developments referred to hereinabove (i) Perry had given an unequivocal undertaking to the High Court that he would submit to the jurisdiction of the Indian Courts. He had also given a solemn undertaking to this Court that he would comply with the Order dated 28.10.2020 in addition to the Judgment dated (ii) In response to a specific submission raised in Miscellaneous Application No.2140 of 2020 (quoted in paragraph 16 hereinabove), it was submitted by Perry that he had subjected himself to the jurisdiction of this Court. While dealing with the rival submissions in the Order dated 8.12.2020, this Court made it clear that the undertaking given by Perry to the High Court would continue to be operative, in addition to the undertaking given to this Court. (iii) The Judgment dated 28.10.2020 had called upon Perry to obtain a Mirror Order’ from the concerned Court in Nairobi to reflect the directions contained in the Judgment dated 28.10.2020. Thereafter, the Order dated 9.11.2020 passed by the High Court of Kenya at Nairobi along with the relevant application moved by Perry seeking registration of the Judgment dated 28.10.2020, was filed in this Court. (iv) There was a dispute whether the registration granted vide order dated 9.11.2020 by the High Court of Kenya at Nairobi amounted to fulfilling the requirement of a “Mirror Order’. The submissions on the point were dealt with in paragraphs 8 and 9 of the Order dated 8. 12.2020. The learned counsel appearing for Perry had relied upon the opinion given by M/s. GMC Advocates which in turn had relied upon the decision of the High Court of Kenya at Nairobi in Re: Matter of I W P (Infant) [2013] eKLR to submit that the registration itself was a “Mirror Order” in compliance of the requirements of the Judgment Relying on the submissions so advanced on behalf of Perry and in deference to the Order dated 9.11.2020 passed by the High Court of Kenya at Nairobi, in paragraph 10 of the Order dated 8.12.2020, this Court observed that the registration of the Judgment of this Court by the High Court of Kenya at Nairobi was sufficient compliance of the directions to obtain a “Mirror Order” issued from a Competent Court in Kenya. (v) The Judgment dated 28.10.2020 and the Order dated 8.12.2020 passed by this Court were thus premised on the submission that the Order dated 9.11.2020 passed by the High Court of Kenya at Nairobi while registering the Judgment dated 28.10.2020 passed by this Court was in fact the “Mirror Order’. (vi) It now transpires that by a subsequent Order dated 21.5.2021, the High Court of Kenya at Nairobi in Paragraph 13 of its order observed that the judgment of this Court was not registrable and dismissed the Originating Summons dated 30.10.2020 filed by Perry. (vii) At no stage Perry brought this development to the notice of this Court that the Originating Summons moved by him seeking registration of the Judgment dated 28.10.2020 passed by this Court was dismissed by the High Court of Kenya at Nairobi on 21.5.2021. Having submitted to the jurisdiction of the Indian Courts it was the bounden duty of Perry to keep this Court appraised of all the developments particularly when the “Mirror Order” was the fulcrum on the basis of which this Court handed over to him the custody of (viii) This infraction gets more pronounced in the light of the stand taken in his Affidavit dated 5.8.2021 filed in this Court and referred to in Paragraph 22 hereinabove. In that affidavit Perry unequivocally stated that he had not even the remotest intention to disobey the Order passed by this Court including the Judgment dated 28.10.2020. Yet, something as basic and fundamental like the Order dated 21.05.2021 was not brought to the notice of this Court. Logically, Perry should have brought back Aditya to this country so that status quo ante could be restored and appropriate orders could thereafter be passed by this (ix) Miscellaneous Application No.1167 of 2021 filed by Smriti had annexed e-mails exchanged between her and Perry and prayed that Perry be directed to comply with directions regarding vacation access. In response, apart from stating that he had no intentions to disobey the orders passed by this Court, Perry voiced concern about sending Aditya to India. Being well aware of the conditions in this Country, a solution was devised by this Court in its Order dated 11.08.2021 and certain directions to facilitate the entry of Aditya into and his exit from India in a safe manner were issued. Pertinently on 11.08.2021, the attention of this Court was not invited to the fact that the Situational Report dated 09.08.2021 as referred to hereinabove was made or that the matter was being looked into by the concerned authorities in Kenya. (X) Despite clear directions issued in the Order dated 11.08.2021 Perry had not taken any steps to comply with the Order. As a matter of fact, by the time the matter was taken up for further hearing on 16.08.2021, Perry sought to withdraw the authorization in favour of the learned counsel who were all the while representing him before (XI) As disclosed in I.A. 100550 of 2021 week-end Skype meetings between Smriti and Aditya were not facilitated from the week-end of 14.08.2021 and 15.08.2021. Perry also blocked all means of communications with Smriti. Though in law the learned advocates who had entered appearance on behalf of Perry would continue to represent him, notice was additionally directed to be served on Perry through Indian embassy of Nairobi. (XII) In the light of the defiant attitude exhibited by Perry and his refusal to abide by the Orders passed by this court, ad-interim relief in terms of prayers (d) (e) and (f) made by Smriti in her I.A. No.100550 of 2021 was granted by this Court vide its order dated 17.08.2021. (XIII) Finally, Petition No.E301 of 2021 and -Notice of Motion were moved on behalf of Perry, filed in the High Court of Kenya at Nairobi on 26.08.2021. The stand taken by Perry in said Petition and Notice of Motion is that it would be humiliating to compel Aditya to take OCI Card; that wishes of Aditya were not ascertained by this Court; that there was no valid Mirror Order and that the orders passed by this Court were without jurisdiction. He has prayed for declaration that there existed no valid “Mirror Order” and in the circumstances the orders passed by this Court are incapable of compliance and/or 35. These developments not only show the defiant and contumacious posture now adopted by Perry but prima facie support the submissions of Smriti made in Interim Applications referred to in paragraphs 25, 27, and 28 herein above. There appears to be concrete material and reason to believe that it was a well-planned conspiracy on part of Perry to persuade this Court to pass orders in his favour and allow him the custody of Aditya and then turn around and defy the Orders of this Court. 36. It is fundamental that a party approaching the Court must come with clean hands, more so in child custody matters. Any fraudulent conduct based on which the custody of a minor is obtained under the orders of the Court, would negate and nullify the element of trust reposed by the Court in the concerned person. Wherever the custody of a minor is a matter of dispute between the parents or the concerned parties, the primary custody of the minor, in parens patriae jurisdiction, is with the Court which may then hand over the custody to the person who in the eyes of the Court, would be the most suitable person. Any action initiated to obtain such custody from the Court with fraudulent conduct and design would be a fraud on the process of the Court.” 3. Thereafter, the relevant decisions on the point as well as the submissions of the learned Solicitor General, Mr. Amarjit Singh Chandhiok and Ms. Sonia Mathur, learned Senior Advocates appearing for Smriti Madan Kansagra (hereinafter referred to as Smriti) and Mr. Anunaya Mehta, learned Advocate were recorded in the Order dated 7.10.2021 and it was concluded: - “39. Though, at every juncture solemn undertakings were given by Perry to the High Court and this Court, such undertakings were not only flagrantly violated but a stand is now taken challenging the very jurisdiction of the Indian Courts, despite having submitted himself to the jurisdiction of the Indian Courts. Such conduct, prime facie, can certainly be said to be contumacious calling for an action in contempt jurisdiction. Moreover, the non-disclosure of material facts by Perry at the relevant junctures also shows that he approached the Indian Courts with unclean hands. 40. It was only on the basis of the solemn undertakings given by Perry and the order dated 09.11.2020 passed by the High Court of Kenya at Nairobi which was projected to be a “Mirror Order” in compliance of the directions issued by this Court, that the custody of Aditya was directed to be handed over to Perry. Since the false and fraudulent representations made by Perry were the foundation, on the basis of which this Court was persuaded to handover custody of Aditya to him, it shall be the duty of this Court to nullify, in every way, the effect and impact of the orders which were obtained by playing fraud upon the Court. All the decisions referred to hereinabove point in that direction. This Court would therefore be well within its power and justified to recall all the orders and continue to assume jurisdiction to ensure that the situation as it prevailed prior to the passing of the orders by the Trial Court, the High Court and this Court, gets restored, whereafter appropriate decision can be taken in parens patriae jurisdiction. 41. It is true that Aditya is now in Kenya. But he was taken to Kenya only on the basis of fraudulently obtained orders from this Court. In our considered view, the Indian Courts which were the Courts of first contact and had complete jurisdiction over Aditya, must continue to exercise such power and jurisdiction to correct the wrongs which occurred as a result of fraudulent conduct on part of Perry. It may be stated here that at every juncture, welfare of Aditya was and will always continue to be the primary consideration for the Indian Courts. He was interviewed by very competent and qualified Counsellors whose reports and assessments have been part of the record. Aditya was also interviewed by the Trial Court, the High Court and this Court. At no stage any mistreatment by Smriti was even remotely suggested or adverted to by Aditya. After Aditya is brought back to this country, this Court will certainly have appropriate interactions with Aditya to understand his Wishes while considering his welfare.” 4. In light of the facts and circumstances, following directions were thereafter issued by this Court in said Order dated 7.10.2021: - “42. In the premises, we pass following directions: (A) The Judgment dated 28.10.2020 and the Order dated 08.12.2020 Passed by this Court are recalled. (B) The Guardianship Petition No.53 of 2012 filed by Perry in the District Court, Saket, New Delhi seeking permanent custody of Aditya and the resultant proceedings arising therefrom including MAT APP (F.C) No.3Q of 2018 filed in the High Court, are dismissed. (C) the Orders granting custody having been recalled, the custody of Aditya with Perry is declared to be illegal and ab initio void. (D) Issue notice to Perry as to why proceedings in contempt jurisdiction be not initiated against him for having violated the solemn undertaking given to this Court, returnable on 16th November, 2021. The Registry is directed to register Suo Motu Contempt Case and proceed accordingly. (E) The notice shall additionally be served through e-mail directed at r the e-mail id used by Perry in communicating with Smriti. The details in that behalf shall be furnished to the Registry by Smriti within two days. (F) The Central Bureau of Investigation, New Delhi through its Director is directed to initiate appropriate proceedings by registering criminal proceedings against Perry and to secure and entrust the custody of Aditya to Smriti. (G) The Secretary, Ministry of External Affairs, Government of India, New Delhi and the Indian Embassy in Kenya are directed to ensure that all possible assistance and logistical support is extended to Smriti securing the custody of Aditya. (H) From and out of the amount of Rs.1 crore deposited by Perry in this Court, at this stage, an amount of Rs.25 lakhs be handed over to Smriti towards legal expense incurred or required to be incurred hereafter. Rest of the money shall continue to be kept in deposit with the Registry till further orders.” 5. Pursuant to direction (D) as stated above, the instant Suo-moto Contempt Petition stands registered against Perry. 6. In its Order dated 25.1.2022, while dealing with the instant petition, this “Accordingly, the matter is listed before us today to consider whether charges need to be framed or not. It must a stated here that Mr. Perry Kansagra has chosen not to file any response in the matter. Having considered the entirety of the matter, in our view, case is definitely made out to proceed against Mr. Perry Kansagra in contempt jurisdiction: - i) For having willfully violated the directions issued by this Court, ii) for having acted in breach of solemn undertakings given to the courts including this Court, and; jii) for having obstructed the course of justice and committed criminal contempt of Court. The Registry is, therefore, directed to issue notice to Mr. Perry Kansagra in terms of Rules to Regulate Proceeding for Contempt of the Supreme Court, 1975 in Form I appended to said Rules. The Registry is further directed to quote the relevant portions of Paragraphs 38 to 40 of the order dated 7th October, 2021 as well as the prima facie observations as stated above, warranting initiation. of proceedings in Contempt. Let notice be made returnable on 8 March, 2022. Mr..Perry Kansagra is directed to remain personally present on the next date of hearing. In addition to the regular mode of service, the notice shall be served in the same manner as was done on the earlier occasion and the office of the learned Solicitor General is requested to take appropriate steps in the matter. Mr. Perry Kansagra is at liberty to file response to the proceedings on or before 22™ February, 2022, with advance copy to the other side.” 7. Since despite being served, Perry had not appeared, following order was passed by this Court on 8.3.2022: “While directing initiation of contempt proceedings and issuance of notice in Form-I appended to the Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975, vide order dated 25.01.2022, notice was directed to be issued to Mr. Perry According to the office report, notice has been issued through Ministry of Law & Justice by Speed Post on 03.02.2022 as well as “through e-mail as was done on the earlier occasion”. However, the office report states that status of delivery has not been received from the Ministry of Law & Justice so far. Though the office report indicates that notice was issued through e-mail “as was done on earlier occasion”, for removal of doubts, the Registry is directed to send notice to be served upon Mr. Perry Kansagra through e-mail ID from which communications were received on behalf of Mr. Perry Kansagra. Ms. Sonia Mathur, learned Senior Advocate appearing for the applicant Ms. Smriti Madan Kansagra, submits that it has been four months but Ms. Smriti Madan Kansagra is unaware about the status of proceedings initiated by the Central Bureau of Investigation. We, therefore, call upon the Central Bureau of Investigation to file the Status Report before the next date of hearing. Let an appropriate intimation be sent by the Registry to the Central Bureau of Investigation.” 8. Accordingly, status report was filed by the Central Bureau of Investigation and the matter was taken up on 11.4.2022 when the following order was passed by “Status report has been submitted by the CBI which indicates that Look Out Circular has already been issued by the CBI. A copy of the report be given to Ms. Smriti Madan Kansagra. IA No.53272 of 2022 has been filed by her seeking permission to place on record certain additional documents. Having considered the application, in our view, said documents must be made a part of the record. Reliance is placed by her on the order dated 9.3.2022 passed in SLP (Crl.) No.2018 of 2020, in terms of which in similar circumstances, direction was issued commanding CBI to issue Red Corner Notice to secure the presence of the first respondent who was a foreign national. Ms. Sonia Mathur, learned Senior Advocate prays for similar direction in the instant matter. Paragraph 5 of said order dated 09.03.2022 discloses that there was failure on part of the first respondent-husband to abide by the terms and conditions imposed by the High Court. The observations were made by this Court that such conduct may invite action in contempt jurisdiction. In so far as the instant matter i, concerned, this Court has already issued notice while exercising contempt jurisdiction. The CBI is therefore, directed to issue Red Corner Notice to secure the Presence of Perry Kansagra. Since the minor child was secreted away as a part of design referred to and dealt with in the earlier orders, we also direct the CBI to issue Yellow Corner Notice to secure the presence of the child. As the earlier orders indicate, we have initiated proceedings in contempt petition and have already given sufficient time to Mr. Perry Kansagra to respond to those notices and yet no response has been filed. We, therefore, direct the contempt petition to be listed on 21.04.2022 at 03:00 pm for final disposal.” 9. We heard Ms. Sonia Mathur, learned Senior Advocate for Smriti and Mr. Rajat Nair for Central Bureau of Investigation. Mr. P. K. Manohar, learned Advocate for Perry, however declined to advance any submissions. 10. Ms. Mathur, learned Senior Advocate highlighted the acts of contempt by Perry under two segments namely those prior to July, 2021 and some which were after July, 2021. The acts of contempt as described in the Notes of Arguments submitted on behalf of Smriti were:- “3. In the respectful submission of Smriti, the following are the acts of contempt by Perry prior to July 2021: i. The following are the affidavits/undertakings given by Perry, which have been wilfully breached by him: a. Undertaking/affidavit dated 02.08.2020 given to the Delhi High Court wherein he undertook to “honour and comply with the visitation rights given to Smriti” as well as undertook to “submit to the jurisdiction of the Indian b. Undertaking/affidavit dated 30.10.2020 filed by Perry before this Hon’ble Court pursuant to the judgment dated 28.10.2020 that he would comply with the majority decision dated 28.10.2020 without any demur and in letter and spirit. c. Affidavit dated 20.11.2020 filed by Perry which accompanied the “mirror order” wherein Perry stated that the purported order dated 09.11.2020 passed by the Kenyan High Court was a “mirror order”. d. Perry Kansagra filed and continued to rely on the purported mirror order dated 09.11.2020 in his reply to M.A. No. 2140/2020, Copy of affidavit of compliance dated 20.11.2020 filed by Perry and Copy of Affidavit dated 26.11.2020 in support of the documents filed by e. Affidavit dated 09.12.2020 filed by Perry in compliance of the order dated 08.12.2020 passed by this Hon’ble Court wherein he state that he “shall truly and faithfully abide by the order dated 08.12.2020”. f. The order dated 08.12.2020 accepted the undertaking of Perry Kansagra submitting to the jurisdiction of this ii. Removing Aditya from the Indian jurisdiction on 10.12.2020 based on the aforementioned false undertakings/affidavits and legally untenable purported “mirror order”. iii. Perry’s deliberate failure to comply with the directions to another “mirror order” as directed in paragraph 21 (D) of order dated iv. As is evident from the aforementioned deliberate and wilful conduct Petty, it is most respectfully submitted that Perry kidnapped the child from Indian jurisdiction and removed the child from parens patriae of the Court. Perry has abused the process of this Hon’ble Court. 4. The following are the acts of contempt committed by Perry post i. Refusal to bring Aditya to India for Smriti to avail her visitations in terms of the judgment dated 28.10.2020 and order dated ii. Having the purported “mirror order” dated 09.11.2020 set aside by Kenyan High Court by order dated 21.05.2021. iii. Supressing the order dated 21.05.2021 passed by the Kenyan High Court – Not filing the said order before this Hon’ble Court either voluntarily when the said order was passed or with his reply dated 05.08.2021 to MA No.1167/2021 or with his reply dated 05.08.2021 to MA No.1167/2021 or with application dated 09.08.2021 to place additional documents or with documents filed on 11.08.2021. iv. Refusal by Perry Kansagra to get the child to India to be interviewed by this Hon’ble Court in terms of the order dated v. In Perry’s reply and affidavit dated 05.08.2021 to MA No. 1167/2020, Perry stated that he is complying with the directions of this Hon’ble Court passed on 28.10.2020 and 08.12.2020. vi. Deliberate breach of the order dated 11.08.2021, i.e. not sending Aditya to India on 13.08.2021 and not applying for Aditya’s OCI card at the Indian High Commission at Nairobi, Kenya. vii. Discharging his counsels at a crucial stage on 15.08.2021 i.e. when this Hon’ble Court had listed the matter for compliance the orders dated 11.08.2021, 08.12.2020 and 28.10.2020, and sought the assistance of Perry’s counsels in this regard. viii. Deliberately snapping off all ties between Aditya and Smriti, not only by not sending Aditya to India on 13.08.2021, but also stopping all Skype access from 15.08.2021, thereby deliberately and wilfully breaching the orders dated 28.10.2020 and ix. Initiating proceedings before the Kenyan High Court in violation of his aforementioned undertakings/affidavits and the order dated 17.08.2021 where a world-wide ad interim ex-parte anti suit injunction order was passed by against Perry from proceeding qua the custody/guardianship of Aditya. The tone and tenor of the Perry’s petition, affidavit and notice of motion are contumacious, scandalous and made in an overt attempt to lower the majesty of this Hon’ble Court. x. Obtaining an order dated 30.08.2021 from the Kenyan High Court restraining Smriti from taking Aditya out of Kenya or his custody, in violation of the orders dated 11.08.2021 and 17.08.2021. Perry has deliberately sought to remove this Hon’ble Court as the parens patriae of Aditya. xi. Perry continued and deliberate refusal to appear before this Hon’ble Court from 15.08.2020 (after he discharged his advocates) and blocked Smriti on all usual forms of communication (email and WhatsApp). xii. Perry’s refusing to accept the repeated attempts of the service of the process of this Hon’ble Court in the contempt proceedings. [elaborated in point no.6] xiii. Perry’s continued refusal to appear before this Hon’ble Court in person despite the order dated 18.10.2021, 01.02.2022 and 16.03.2022 passed in SMC No.3 of 2021.” 11. Our attention was also invited to the decisions in a) Hadkinson vs. Hadkinson1, where the court held that the removal of a child by a custodial parent in violation of the orders passed by the court, was contempt of the grossest kind; and that the contemnor would not have any right to be heard until the child was brought back to the jurisdiction of the court; b) Regina vs. Jones (Robert)2, where the Court of Appeal held that the applicant had waived his right to be present at the trial by his conduct in absconding and in such circumstances, the judge had a discretion to allow the trial to proceed in the absence of the applicant; and c) of this Court in the matter of Anil Panjwani3. It was thus submitted that unless and until Aditya was brought back to the jurisdiction of this Court, Perry would not be entitled to be heard in the matter and that the instant contempt proceedings could as well be taken to logical conclusion in his absence. It was further submitted that the conduct of Perry in tendering affidavits and undertakings containing false statements was not only fraudulent but also amounted to perjury and criminal contempt. The decisions of this Court in Dhananjay Sharma v. State of Haryana4, Chandra Shashi v. Anil Kumar Sharma5 and in ABCD v. Union of India6 were relied upon in support of the 12. While considering whether the conduct of Perry was fraudulent or not, this Court had considered various decisions in paragraph 37 of its Order dated 7.10.2021 whereafter it was observed that it would be the duty of this Court to nullify the effect and impact of the orders which were obtained after practising fraud upon the Court. This Court, therefore, recalled the Judgment dated 28.10.2020 and the Order dated 08.12.2020. At the same time, non-disclosure of material facts by Perry at the relevant junctures were also prima facie found to be contumacious. Therefore, the instant proceedings in the contempt jurisdiction were initiated suo moto by this Court. 13. The first set of decisions relied upon by Ms. Mathur deal with the rights of a contemnor or a violator to be heard until such contemnor or violator purges the contempt. Though Ms. Mathur was quite right in her submission, we had adjourned the matter suitably on few occasions so that adequate opportunity could be availed of by Perry and submissions on his behalf could be advanced. Even at the final hearing stage, we had invited Mr. P. K. Manohar, learned Advocate for Perry to advance his submissions which offer, however, was not availed of. 14. The second set of decisions relied upon by Ms. Mathur are on the point whether tendering of affidavits and undertakings containing false statement would amount to criminal contempt or not. At this stage, we may extract following paragraphs from the decision of this Court in ABCD v. Union of India 6 which had considered some of the previous decisions of this Court on the point: 15. Making a false statement on oath is an offence punishable under Section 181 of the IPC while furnishing false information with intent to cause public servant to use his lawful power to the injury of another person is punishable under Section 182 IPC. These offences by virtue of Section 195(1)(a)(i) of the Code can be taken cognizance of by any court only upon a proper complaint in writing as stated in said section. In respect of matters coming under Section 195(1)(b)(i) of the Code, in Pushpadevi M. Jatia v. M.L. Wadhawan [Pushpadevi M. Jatia v. M.L. Wadhawan, (1987) 3 SCC 367 : 1987 SCC (Cri) 526] prosecution was directed to be launched after prima facie satisfaction was recorded by this 16. It has also been laid down by this Court in Chandra Shashi v. Anil Kumar Verma [Chandra Shashi v. Anil Kumar Verma, (1995) 1 SCC 421 : 1995 SCC (Cri) 239] that a person who makes an attempt to deceive the court, interferes with the administration of justice and can be held guilty of contempt of court. In that case a husband who had filed a fabricated document to oppose the prayer of his wife seeking transfer of matrimonial proceedings was found guilty of contempt of court and sentenced to two weeks' imprisonment. It was observed as under: (SCC pp. 423-24 & 427, paras 1-2 & 14) “1. The stream of administration of justice has to remain unpolluted so that purity of court's atmosphere may give vitality to all the organs of the State. Polluters of judicial firmament are, therefore, required to be well taken care of to maintain the sublimity of court's environment; so also to enable it to administer justice fairly and to the satisfaction of all concerned. 2. Anyone who takes recourse to fraud, deflects the course of judicial proceedings; or if anything is done with oblique motive, the same interferes with the administration of justice. Such persons are required to be properly dealt with, not only to punish them for the wrong done, but also to deter others from indulging in similar acts which shake the faith of people in the system of administration of justice. 14. The legal position thus is that if the publication be with intent to deceive the court or one made with an intention to defraud, the same would be contempt, as it would interfere with administration of justice. It would, in any case, tend to interfere with the same. This would definitely be so if a fabricated document is filed with the aforesaid mens rea. In the case at hand the fabricated document was apparently to deceive the court; the intention to defraud is writ large. Anil Kumar is, therefore, guilty of contempt.” 17. In K.D. Sharma v. SAIL [K.D. Sharma v. SAIL, (2008) 12 SCC 481] it was observed: (SCC p. 493, para 39) “39. If the primary object as highlighted in Kensington Income Tax Commrs. [R. v. General Commissioners for Purposes of Income Tax Acts For District of Kensington, ex p Princess Edmond De Polignac, (1917) 1 KB 486 : 86 LJKB 257 : 116 LT 136 (CA)] is kept in mind, an applicant who does not come with candid facts and “clean breast” cannot hold a writ of the court with “soiled hands”. Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, manoeuvring or misrepresentation, which has no place in equitable and prerogative jurisdiction. If the applicant does not disclose all the material facts fairly and truly but states them in a distorted manner and misleads the court, the court has inherent power in order to protect itself and to prevent an abuse of its process to discharge the rule nisi and refuse to proceed further with the examination of the case on merits. If the court does not reject the petition on that ground, the court would be failing in its duty. In fact, such an applicant requires to be dealt with for contempt of court for abusing the process of the court.” 18. In Dhananjay Sharma v. State of Haryana [Dhananjay Sharma v. State of Haryana, (1995) 3 SCC 757 : 1995 SCC (Cri) 608] filing of a false affidavit was the basis for initiation of action in contempt jurisdiction and the persons concerned were punished.” Thereafter, in suo moto exercise of power, proceedings in contempt jurisdiction were initiated against said petitioner. 15. It is thus well settled that a person who makes a false statement before the Court and makes an attempt to deceive the Court, interferes with the administration of justice and is guilty of contempt of Court. The extracted portion above clearly shows that in such circumstances, the Court not only has the inherent power but it would be failing in its duty if the alleged contemnor is not dealt with in contempt jurisdiction for abusing the process of the Court. 16. The essential features of the matter as culled out in paragraph 34 of the Order dated 07.10.2021 were relied upon to arrive at a prima facie observation that Perry was guilty of contempt of Court. Though notice was issued to Perry, no response has been tendered. We find that the material on record clearly shows violation on part of Perry. The observations made in paragraph 34 of the order dated 7.10.2021 were on the basis of record. Having considered the entirety of the matter, in our view, Perry is guilty of having committed criminal contempt of Court apart from the contempt for violating express undertakings given to the Courts, including this Court. We accordingly hold Perry guilty under the Contempt of 17. Though the instant proceedings can be taken to logical conclusion and order of sentence can be awarded even in the absence of Perry, we give final opportunity to Perry to present himself before this Court on 22.07.2022 at 3.00 pm along with Aditya. He shall then have an opportunity to advance appropriate submissions on the issue of punishment to be awarded to him. It shall also be open to Perry to purge himself of contempt in which case a sympathetic view may be taken in the Let copy of this Order be served upon Perry through email ID used by him in serving process upon Smriti. Additionally, a copy shall be given to Mr. P.K. Manohar, learned Advocate. 18. For securing the presence of Perry and Aditya before this Court and for effective implementation of the Orders issued by this Court, the Union agencies including the Central Bureau of Investigation shall have and shall exercise all the powers, not necessarily restricted to the following directions issued in the Order “The Central Bureau of Investigation, New Delhi through its Director is directed to initiate appropriate proceedings by registering criminal proceedings against Perry and to secure and entrust the custody of Aditya to Smriti. The Secretary, Ministry of External Affairs, Government of India, New Delhi and the Indian Embassy in Kenya are directed to ensure that all possible assistance and logistical support is extended to Smriti in securing the custody of Aditya.” It must be stated here that the learned Solicitor General had assured this Court during the hearings at the interim stages that every possible help and assistance shall be extended by the Union agencies and the Indian Embassy in Kenya in securing the presence of Perry and Aditya before this Court. 19. List the matter on 22.07.2022 at 3.00 pm.
The Supreme Court said that giving official written statements or promises that contain lies to the court counts as "contempt of court," which means showing disrespect to the court or messing with its work. Justices UU Lalit and PS Narasimha noted that if someone lies to the court and tries to trick it, they get in the way of fairness and justice. This makes them guilty of disrespecting the court. Last year, the Court had taken back a decision that gave a child into the care of a Kenyan citizen of Indian background. This was because the Court found he had tricked it and hidden important information. The Court also started legal action for disrespect against one of the people involved, because they had broken promises made to the court. When looking at this case, the court remembered an earlier decision about whether giving official statements and promises that contain lies would count as serious disrespect to the court or not. Referring to an earlier case called ABCD v. Union of India, the court stated: "15. So, it is clearly established that a person who lies to the Court and tries to trick it, interferes with how justice is carried out and is guilty of disrespecting the court. The part quoted above clearly shows that in such situations, the Court not only has the natural power to act, but it would be failing in its duty if the person accused of disrespecting the court is not dealt with through legal action for misusing the court's process." The judges therefore decided that Perry was guilty of serious disrespect to the court. This was in addition to the disrespect for breaking clear promises made to the Courts, including this Court. The court noted, "Even though this current case can be finished and a punishment can be decided even if Perry is not here, we are giving Perry one last chance to show up in this Court on July 22, 2022, at 3:00 p.m. along with .... He will then have a chance to make proper arguments about what punishment he should receive. It will also be possible for Perry to correct his disrespectful actions, in which case a more understanding view might be taken." Case details About Perry Kansagra | (Supreme Court reference) 576 | SMC(C) 3 of 2021 | July 11, 2022 Judges: Justices UU Lalit and PS Narasimha Headnotes (Key Legal Points) Contempt of Courts Act, 1971 - If someone lies to the Court and tries to trick it, they get in the way of justice and are guilty of disrespecting the Court. The Court not only has the natural power to act, but it would be failing in its duty if the person accused of disrespecting it is not dealt with through legal action for misusing the court's process.
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Appellant :- Babu Pasi alias Babu Lal Pasi and another Respondent :- State of U.P. Counsel for Appellant :- J.N.Chaudhary, H B Singh, Harendra (The judgment is pronounced in terms of Chapter VII Sub-rule (2) of Rule (1) of the Allahabad High Court Rules, 1952 by (1) Eleven accused persons, namely, Babu Pasi alias Babu Lal Sewak, Neta alias Kunni, Chandra Kishore, Lalaunoo, Ram Rup, Ram Chandra, were tried by the VI Additional Sessions Judge, Unnao in Sessions Trial No. 210 of 1981 : State Vs. Babu Lal and others. (2) It is pertinent to mention here that during the trial, accused Babu Lal Master died, whereas accused Vinod Kumar and Babu Lal Dom were absconding, hence their trial was separated from aforesaid eleven accused persons and the trial Court had charged accused Ringu Pasi and Babu Lal Pasi under Sections 302 read with Section 34 I.P.C. for committing murder of Shiv Balak and Ram Balak and under Section 404 I.P.C. for having taken arms from the deceased persons; and accused Ramesh, Madan Lal, Ram Swaroop, Ganga Sewak, Neta alias Kunni, Chandra Kishore, Lalaunoo, Ram Roop and Ram Chandra were charged under Sections 201, 148, 302 read with Section 34 I.P.C. and Section 302 I.P.C. read with Section 114 I.P.C. (3) Vide judgment and order dated 17.07.1982, the VI Additional Sessions Judge, Unnao, acquitted nine accused persons, namely, Ramesh, Madan Lal, Ram Swaroop, Ganga Sewak, Neta alias Kunni, Chandra Kishor, Lalaunoo, Ram Roop, Ram Chandra and convicted two accused persons, namely, Babu Pasi alias Babu Lal Pasi (appellant no.1 herein), Ringu Pasi (appellant no.2 herein) under Section 302 read with Section 34 I.P.C. and Section 404 I.P.C. and sentenced them in the manner as stated “(i) Under section 302 read with Section 34 (ii) Under Section 404 I.P.C. to undergo one year’s R.I.” Both the sentences were directed to run concurrently. (4) Feeling aggrieved by their conviction and sentence above vide judgment and order dated 17.07.1982, Babu Pasi alias Babu Lal Pasi (appellant no.1 herein ) and Ringu Pasi (appellant no.2 herein) have preferred the instant criminal appeal under Section 374 (2) of the Code of Criminal Procedure. (5) It is pertinent to mention here that no appeal against the acquittal of nine accused persons, namely, Ramesh, Madan Lal, Ram Swaroop, Ganga Sewak, Neta alias Kunni, Chandra Kishor, Lalaunoo, Ram Roop, Ram Chandra, has been filed either by the State or by the complainant’s side. (6) It transpires from the record that during pendency of the instant appeal, appellant no.1-Babu Pasi alias Babu Lal Pasi died on 12.07.2015, hence the instant criminal appeal filed on his behalf stands abated vide order dated 07.02.2019. Now the instant criminal appeal survives only in respect of appellant no.2-Ringu (7) Shorn off unnecessary details, the case of the prosecution is as Gaya Prasad Singh (informant), son of Sheo Darshan Singh Kachi, who is the resident of village Hamirpur, Police Station Bihar, District Unnao, has lodged an F.I.R., alleging therein that in the year 1979, Chandrika Pasi of his village was murdered, in which his son Ram Balak (deceased), his nephew Raj Narayan son of Suryawali Kachi, Dinesh Chandra (injured) and Harish Chandra alias Kunne, sons of Udai Shanker Shukla, resident of village Bhagwant Nagar, Police Station Bihar, were challaned and in this case, on 30.09.1980, they were required to be present in Court. On that date i.e. on 30.09.1980, his another civil case was listed in Civil Court. On 30.09.1980, his son Ram Balak (deceased), Shiv Balak (deceased) and his brother Vishnu Dutt came to kachahari (Court) for doing pairvi in both the cases. On the said date, the relatives of Chandrika Pasi and his companions, namely, Babu Lal Pasi Master, Ringu Pasi, Babu Pasi (accused), residents of Village Osiya, Police Station Bighapur, were also gone along with other 2-3 friends to kachahari (court) for doing pairvi of the case of In the Court, some hot talk took place between his sons and Babu Lal Master etc. Thereafter, Babu Lal said that “[kqu dk cnyk [kqu ls pqdk;k tk;sxk” (blood would be avenged for blood), which was also heard by Ram Narayan Kadi, who had gone there for pairvi of his brother Raj Narayan. On the said date, the case was posted for On 06.10.1980, he (informant Gaya Prasad Singh), his sons Ram Balak (deceased), Shiv Balak (deceased), his nephew Raj Narayan and Shivdhar Singh sons of Ganga Singh, resident of village Bhunau Kheda, Ram Balak Yadav son of Kali Prasad resident of village Pitua Kheda, Ramdas Lohar son of Bhalu, Ram Balak son of Satya Narayan Pasi resident of Village Hamirpur, Police Station Bihar, District Unnao, were gone to kachahari (Court) but the case was posted for 07.10.1980, then, they were coming from Kanpur to Buxer through a bus, bearing registration No. U.T.T. 7367, upon which his grand-child Upendra Singh (P.W.1) son of Shiv Balak (deceased) was also returning from Kanpur. Babu Pasi, Ringu Pasi (appellants) of Usiya also boarded on the said bus from Unnao. When the bus was started to go from Bighapur to Buxer, then, 3-4 men from Bighapur also boarded the said bus and when the bus moved ahead from frjkgk (a place where three road met with each other) of Usiya village at around 05:30 p.m., loud sound jksdks jksdks (stop stop) came inside the bus from its behind and 3-4 fire also happened in the bus. Thereafter, the bus, after running about 150 yard, stopped and then, they saw that Ram Balak (deceased) and Shiv Balak (deceased) got shot and fell on their seats and near to them, Babu Pasi, Ringu (appellants) and 24 year old wheatish colour boy wearing a red bushirt were holding a katta (pistol) in their hands and while abusing the passengers, asked them that bastard get out from the bus and ran away and if someone spoke, he too would be shot. Thereafter, while snatching the rifle of his son Ram Balak (deceased) and a single bore gun of Shiv Balak (deceased) by Babu Pasi and Ringu Pasi (appellants), respectively, they took it in their hands. Thereafter, Dinesh Chandra Shukla (injured), who was sitting in front of the seat of the next gate with his rifle facing his face towards back, was caught holding his rifle by a wheatish man wearing Khakhi paint and bushirt and appeared to be a young age. Thereafter, Dinesh tried to escape from the grip of a wheatish man but he was jerked by him and then, while pulling over from bus with rifle, the said wheatish man snatched his rifle. Thereafter, all the passengers got out of the bus and hid under the trees here and there. They (informant Gaya Prasad Singh and Upendra Singh (P.W.1) also ran away and hid here and there under the cover. As soon as the bus stopped the side of the road, Babu Lal Pasi Master (accused), who was armed with one bore gun and along with him 10-12 persons, who armed with Katta (pistol) and shotguns (vn~/kh canwds), started firing. When the passengers got down, Babu Lal Master (accused) had said that dead body of the bastard be taken out from the bus, thereupon 3-4 persons entered into the bus and took out the dead body of his two sons, who died on account of shot inside the bus and thereafter, took away the dead bodies of his two sons to the south of the road towards the field. Thereafter, on saying of Babu Lal Master (accused), one of his companion, after soaking his angaucha (towel) in water, entered into the bus and cleaned the blood that had fallen in it. A passenger, who was running towards the east and fell into the water about seven yards east of the road, was too shot by the miscreants. Two miscreants picked up his body and took him towards south of the road towards agriculture. The miscreants fired 15-16 shots and all the miscreants went south through the Hearing the fire sound, the men working in the nearby fields came on the road and saw the incident and recognized the miscreants. After the miscreants ran away, the said people came near the bus. The passenger, who had boarded the bus from Bighapur, told his name as Lallu Yadav of Mardan Khera, Kishan Mohan of Usiya, Jagmohan Singh of Akwabad, Police Station Bighapur. The men, who had gathered on the spot and who had seen and recognized the miscreants, told that the red bushirt miscreant was Vinod Kumar Chamar; the name of the person wearing Khakhi paint and bushirt was Babal Lal Dom of village Usiya and the name of the other miscreants was Kunni alias Neta, Ram Chandra Ahir, Ahir of Usiya, Lalaunu Pasi of village Bhagrar, Chandra Kishore Lohar of village Aram police station Bighapur Unnao. The name of 3-4 miscreants could not tell by them but they said they would recognize by seeing them. It has further been stated by the informant Gaya Prasad Singh that his son Shiv Balak was wearing half black tericoat bushirt, in which big white check was made, one rainy shoe, one rose colour aunguacha having its corner green, H.M.T. Automatic white dial white Kesh and a watch connected with chain amounting to Rs.400/-; and Ram Balak was wearing tericot bellbottom and tericot bushirt, rainy shoe, Omax automatic of catechu color and a watch connected with chain amounting to Rs. 400/-. They were also having license of rifle and gun and cartridge. The window of the bus where his sons were sitting got broken on the shot of miscreants and the seat where his sons were sitting in the bus, were having entry of gun shot and blood stained. On account of the shot of the miscreants, Dinesh Shukla and 2-3 persons were also sustained injuries. The name of the miscreants told by the persons came there after the incident, has not been known by him prior to the incident. He, Upendra Singh, Shivdhar Singh, Ram Balak Yadav, Ram Balak Pasi, Ram Das Lohar had seen the miscreants and recognized them and when they came in front of them, he can recognized them. He and his family members can identify the belongings of his sons when they come in front of them. (8) Thereafter, informant Gaya Prasad Singh Kachi got the FIR scribed at Bighapur Bus Station through Upendra Singh (P.W.1), who after scribing it read it over to him and thereafter got his signature on it and subsequently handed it over to informant Gaya Prasad, who, then, proceeded to Police Station Bighapur and lodged it. (9) The evidence of Syed Ibtida Husain Rizvi (P.W. 8) shows that on 06.10.1980, he was posted as Constable Clerk at Police Station Bighapur and on the said date, at 07:15 p.m., informant Gaya Prasad came and filed his written FIR (Ext. Ka.1), on the basis of which he prepared the chik FIR (Ext. Ka.33). (10) A perusal of the chik FIR shows that the distance between the place of incident and Police Station Bighapur was 3 miles. It is significant to mention that a perusal of the chik FIR also shows that on its basis, Case Crime No. 144 of 1980, under Sections 396, 201 I.P.C. was registered against appellants and 3-4 unknown persons. (11) The evidence of SI Hari Shanker Singh (P.W. 7), in short, shows In October, 1980, he was posted as Station Officer at police station Bighapur. On 06.10.1980, this case was registered in his presence at the police station. He commenced the investigation and proceeded to the place of incident along with the informant (Gaya Prasad Singh) and other witnesses from police station, where Station Officer of police station Bihar and S.I. R.P. Shukla along with Constables were met at the place of the occurrence. He, thereafter, instructed them to search the dead bodies of the deceased and also to search the accused persons. Thereafter, he recorded the statements of Krishna Mohan and Lalloo etc. On 07.10.1980, at 02:00 a.m., he again commenced the investigation and at the place of occurrence, he recorded the statement of witness Upendra Singh (P.W.1) etc. Subsequently, he inspected the place of occurrence and on the pointing out of the informant and other witnesses, he prepared the site plan (Ext. Ka.5). From the place of incident, he seized two empty catridges, blood stained earth lying on the road on the side of the bus and plain earth near it in two containers under a recovery memo. He also seized four pellets, fVdyh dkjrwl, and a ticket of roadways bus in two containers under a recovery memo. He also seized the blood stained earth and plain earth from the places ‘N’ and ‘Q’ shown in the site map in two separate containers under a recovery memo. He also seized blood stained <Sapk, plain branch of <Sapk, blood stained earth and plain earth from the place shown as ‘>’ in the site plan in two separate containers under the recovery memo. Their recovery memo is Ext. Ka. 6 to Ext. Ka. 9. On the date itself, the dead body of the deceased Shiv Balak was recovered on excavating the field of Devideen and he then prepared a recovery memo (Ext. Ka. 10). Thereafter, the dead body of another person was recovered from that field on excavating it but due to darkness, the Panchayatnama of any corpse could not be done. The dead body of Shiv Balak was identified by Upendra Singh (P.W.1). The accused persons were searched but they were not found at their home. He and other people remained on the spot for the supervision of the dead On 08.10.1980, at about 07:00 a.m., he prepared panchayatnama of the dead body of the deceased Shiv Balak (Ext. Ka. 12), photo lash (Ext. Ka. 13), challan lash (Ext. Ka. 14) and a letter to C.M.O. (Ext. Ka. 15) and handed over the dead body of the deceased Shiv Balak in a sealed condition for post-mortem to Constable Ram Vilash etc. To identify the dead body of the unknown person, it was brought from the field of Devideen to Urmiya Tiraha and got identified from the people who were coming and going there. But after not being identified, Ramdas Photographer was called from Janta Studio Bighapur and photo of the dead body of the unknown person was taken in his presence. Thereafter, photographer had handed over the positive photograph of the unknown person to him (Ext. Ka. 14 and Ext. Ka. 15). Thereafter, he prepared the panchayatnama of the dead body of the unknown person (Ext. Ka. 16), photo lash (Ext. Ka. 17), challan lash (Ext. Ka. 18) and a letter to C.M.O. (Ext. Ka. 19) and handed it over to aforesaid Constable Ram Bilas etc. in a sealed Thereafter, he came at Bighapur Bus Stand, where the bus was standing. From inside the bus, he seized one briefcase (Ext. Ka.16) and articles found inside of it under recovery momo (Ext. Ka. 20). The address was known from the letter found in the briefcase. He also recovered six pellets and 2 vnn fVdyh from inside the bus, which was taken in possession and prepared its recovery memo. He seized the pieces of mirror of broken window inside the bus in a container under recovery memo (Ext. Ka. 23). He found blood on the rexine on the seat of the bus and therefore he cut the blood stained rexine and seized it under recovery memo (Ext. Ka. 24). He also prepared the site plan of the bus (Ext. Ka. 22). The injury report of Dinesh Chandra was received at the police station, which was copied and after that he came at police On 09.10.1980, he went to the house of Shiv Kumar Trivedi of village Babu Kheda along with recovered items Ext. Ka. 16 wherein his son Rama Shanker met and he identified the briefcase and clothes inside it and said it was his brother-in-law. Smt. Shail Kumari has said that the briefcase and its article were of his On 11.10.1980, he handed over the custody of the bus to Sri R.P.Singh, Station Officer, Unnao and got receipt thereof (Ext. Ka. 24). On the date itself, another dead body was found in the field of aforesaid Devideen on excavating (Ext. Ka. 26) but it could not be identified at that time, therefore, informant Gaya Prasad was called. He prepared the site map of that place (Ext. Ka.25). He, thereafter, left the unknown dead body under the supervision of S.I. R. P. Shukla and came to Unnao and informed On 12.10.1980, informant Gaya Prasad came there, identified the dead body and told that it was his son Ram Balak. He, thereafter, prepared panchayatnama of the dead body of Ram Balak (Ext. Ka. 27), photo lash (Ext. Ka. 28), challan lash (Ext. Ka 29) and a letter to C.M.O. (Ext. Ka. 30). He thereafter sealed the dead body of Ram Balak and handed it over to Constable Ram Pal etc. for On 14.10.1980, he recorded the statements of Head Moharrir Ram Asre Tiwari, Constable Ram Bilas Yadav and Ram Pal. On 15.10.1980, he came to Unnao and under the order of the Court, Kunni alias Neta was taken in police custody for 48 hours and brought him to police, where he recorded his statement. On 20.10.1980, at about 03:30 a.m., he arrested Madan Pal Cheddi from the Tiraha of Unnao-Raibareli road and Maiku Teli road at the east of village Sikandarpur. On the search of accused Chhedi, he recovered a country-made pistol, four live cartridges and a wrist watch and prepared two separate recovery memo. On the pointing out of accused Madan and Cheddi, he recovered a bag (Ext. Ka. 26), which was buried in the ground under the water in the field of Ludhai Pasi, in which one angaucha (towel) was On 23.10.1980, he went to Kanpur and searched other accused persons but he could not find them. On 24.10.1980, photographer Ram Baran had given him five photograph. On 24.10.1980, he came to know that accused Babu Lal Master, Babu Lal, Ringu, Ramesh, Vinod Kumar and Chandra Kishore (accused) were surrendered themselves in the Court of Chief Judicial Magistrate, Lucknow. On 28.10.1980, he received information from the Court of J.M.-8, Unnao that aforesaid accused persons came to Unnao Jail from the Lucknow Jail on 26.10.1980. On 31.10.1980, he learnt that accused Ramroop, Ram Swaroop and Gram Sewak surrendered themselves in the Court of Unnao on 28.10.1980 and accused Babu Lal Dom surrendered himself in Court on 29.10.1980. On 02.11.1980, the property of the accused Lalaunoo and Chandra Kumar was attached and handed it over to Munni Lal. On 06.11.1980, he came to know that accused Ram Chandra surrendered himself on 03.11.1980. On 10.11.1980, he conducted the proceedings for reporting the identification of aungaucha and watch and on 12.11.1980, he conducted the proceedings for reporting the identification of accused persons. Thereafter, he was transferred to Kotwali and further investigation was done by Jora Singh (12) The evidence of H.C. Ram Asre (P.W.9) shows that in the month of October, 1980, he was posted as Head Moharrir at Police Station Bighapur. On 09.10.1980, Devideen, son of Lalloo, resident of Ibrahimpur, P.S. Saraini, District Raibareli, came at the police station. He stated that Devideen was sent for medical examination along with Constable Sriram with chithi majroobi (letter for medical examination) at Primary Health Centre, Bighapur. On 20.10.1980, he took accused Madan Lal and Chhedi Lal from police station Bighapur at 11:10 a.m. and detained them at District Jail, Unnao. In cross-examination, P.W.9 H.C. Ram Asrey had deposed before the trial Court that accused Madan and Cheddi were arrested on 20.10.1980 and at 10:15 a.m., they were brought at police station. The injuries of Devideen, which he had seen, were mentioned in the G.D. (13) The evidence of Sri Janardan Singh (P.W.10) shows that on 29.12.1980 and also on 03.01.1980, he was posted as Executive Magistrate at District Unnao. On 03.01.1981, he conducted the identification parade of accused Vinod Kumar, Babulal son of Dhannu Dom and Ramesh and Ram Chandra, Ram Swaroop, Ramroop, Ganga Sewak, Madan Lal, Lalaunu alias Chandra Kumar and Chandra Kishore at District Jail, Unnao. A separate parade consisting of 10-10 undertrial prisoners with each accused was prepared and the witnesses were called one by one. During identification, they were made to sit in such a place where they would not have a conversation with the coming witnesses nor made any indication. The result of the identification parade was that the accused Babu Lal was correctly recognized by the witness Gaya Prasad Singh; accused Chandra Kishore was correctly recognized by the witness Upendra Singh; accused Vinod Kumar and Madan Lal were corrected recognized by the witness Ramdas. He prepared the proceedings of identification directly, which is in his handwriting and signed (Ext. Ka.38) Similarly, on 29.12.1980, he conducted the identification parade of blood stained aungaucha (Ext.1) at his office. The result of such identification was that witnesses Gaya Prasad Singh, Upendra Singh, Gajendra Singh and Devendra Singh had correctly identified the said aungaucha. He had prepared the proceedings in respect of the identification, which is in his handwritten and signature (Ext. 39) In cross-examination, P.W.10 has stated that at the time of identification of goods, they did not get information who is the accused in this case and who is his lawyer, hence the accused was not informed about the identification proceedings. Witness Gaya Prasad had made one mistake in identifying the other accused; witness Upendra Singh also made nine mistakes in identifying other accused; witness Dinesh Chandra made ten mistakes in identifying ten accused. The statements given by the witness to him were “MdSrh o dRy djrs oDr ekSds ij ns[kk Fkk”. Witness Upendra was also given the same statement to him. (14) The evidence of Constable Shiv Charan Mishra (P.W.11) shows that on 29.12.1980, he was posted as Court Moharrir in the Court of Special Executive Magistrate. On that date, he brought out a sealed bundle good from Sadar Malkhana, Unnao to the Court and after completion of identification proceedings, he brought the sealed bundle good from the Court and lodged it to Sadar Malkhana. The goods belonged to this case. (15) The evidence of Head Constable Annirudh Prasad (P.W.13) shows that on 21.10.1980, he was posted as Moharrir at Sadar Malkhana. On the said date, two sealed bundle of this case was deposited by Constable CP 31 Jagdish Prasad in Sadar Malkhana. He also stated that on 29.12.1980, one sealed and stamped bundle, in which bag and angaucha were there, was brought by Constable Shiv Charan Mishra (P.W.11) to the Court for identification and after identification of the aforesaid goods, Constable Shiv Charan Mishra (P.W.11) deposited it in a sealed condition in Sadar Malkhana. (16) The evidence of Ram Baran Verma (P.W.14) shows that in the year 1977, he was doing the work of photography at Bighapur, where he has a studio. On 08.10.1980, he took the negative of Ext. 14, 15. 17, 18 and 19 and he also brought it. He further stated that the same has been filed by him in the Court, in which Ext. 27, 28, 29, 30 and 31 were mentioned. He further stated that for this negative, he prepared the positive photograph print (Ext. 14, 15, 17, 18 and 19) and gave it to the Inspector. In cross-examination, P.W.14 has stated that the bazar (market) of Bighapur is closing once in a week i.e. on Monday. On that day when he prepared the photo, bazar (market) was also closing on Monday. He clicked the photo of the dead body at the tiraha of Usiya and also clicked the photo of the bus at Bus Stand (17) The evidence of P.W.15 Jora Singh shows that on 29.11.1980, he was posted as Station Officer at Police Station Bighapur. He took the investigation of the case himself after transfer of the Investigating Officer Sri Hari Shanker (P.W.7. After completion of the investigation, the appellants and the acquitted accused were charge-sheeted vide charge-sheet dated 11.01.1981 (Ext. In cross-examination, P.W.15 has stated before the trial Court that he did not send the blood stained items to Chemical Examiner for examination. On asking the reasons thereof, he stated that he was not paying attention. (18) Going backward, the injuries of Dinesh Chandra Shukla and Devi Deen were examined on 07.10.1980 and 09.10.1980, at 1:30 p.m. and 03:30 p.m. at District Hospital, Unnao and Primary Health Centre, Bighapur by Dr. Vrij Narayan Saxena (P.W.3) and Dr. Keshav Gupta (P.W.12), respectively, who found injuries on their person as enumerated hereinafter :- 1. Incised wound 2 cm x 0.25 cm x .15 cm on the 1st past aspect of left forearm 5 cm above the medial epicondyle tailing present on the above side, margins clear cut. 2. Abrasion 2 cm x 2 cm on the lateral aspect of Rt. knee joint. (probed). Feeling of Hard Mass like a pallet 3 cm medial to wound area all around the and out from Lt. tibial tubercli measuring 1 cm in diameter. Muscle deep (probed). (19) It is significant to mention here that Dr. Vrij Narayan Saxena (P.W.3), who examined the injured Dinesh Chandra Shukla, has deposed before the trial Court that on 07.10.1980, he was posted as Emergency Medical Officer, District Hospital, Unnao and on the said date, he conducted the medical examination of injured Dinesh Chandra Shukla. On examination of injured Dinesh Chandra Shukla, he found two injuries on his person. As per his opinion, injuries were one day old; injury no.1 could be attributable by sharp edged weapon and injury no.2 by scrubbing; these injuries could be attributable on 06.10.1980 at 05:30 p.m.; and the injury of knee could be caused by falling rough paved road. In cross-examination, P.W.3- Dr. Vrij Narayan Saxena has deposed that none of the these two injuries could be caused by fire arm; and both the injuries are superficial and could be self- inflicted. (20) As stated hereinabove, the injuries of Devi Deen was examined by Dr. Keshav Gupta (P.W.12), who deposed before the trial Court that on 09.10.1980, he was posted as Medical Officer in Primary Health Centre, Bighapur. On the said date, at 03:30 p.m., he examined the injured Devideen, who was brought by Constable Sri Ram of Bighapur Police Station. On the examination of injured Devi Deen, he found two injuries on his person. As per his opinion, injuries could be attributable by any fire arm weapon; duration of the injuries at the time of examination was about three days old; he advised x-ray for both the injuries; he prepared the injury report (Ext. Ka. 42); and all the injuries on his person could be attributable on 06.10.1980 at 05:30 p.m. In cross-examination, he had deposed before the trial Court that on 06.10.1980, he went to Bighapur. The hospital of Bighapur is at a distance of 2 kms from the police station. (21) The autopsies on the dead bodies of deceased persons, namely, (1) unknown person, (2) Shiv Balak and (3) Ram Balak, were conducted on 09.10.1980, 08.10.1980 and 13.10.1980 at 01:30 p.m., 04.00 p.m. and 1:30 p.m., by Dr. Adarsh Sanghi (P.W. 4), Dr. J.N. Bajpai (P.W.5) and Dr. R.R. Aacharya (P.W.16), who found on their person ante-mortem injuries, enumerated “Ante-mortem injuries of unknown person 1. Gun shot wound of entry circular in shape 1 1/2” x 11/2” x chest cavity deep. On the upper part of the chest 11/2” below left sterno clavicular joint margins inverted and contused. right cheek, 1/2” away from right alae of nose. The under lying maxillary bone is cut. 3. Incised wound 3” x 1/2” x bone deep over right cheek 1/2” interior to injury no.2. 4. Circular lacerated wound 1/2” x 1/3” x muscle deep just above right elbow joint. 5. Lacerated wound 1/2” x 1/3” x muscle deep on right fore-arm back 2” below elbow joint. 6. Gun shot wound of entry 11/2” x 11/4” x muscle deep on the anterior part of left buttock 3” is below iliac crest. Margins inverted and muscle deep on the anterior part of the right buttock in an area of 3 1/2“ x 2”. Margins “Ante-mortem injuries of Shiv Balak, son of 1. Multiple incised wounds in an area of 6” x 6” x bone deep carsury lev on left side of face, left side of nose, left side of cheek and left side of chin. Margins (illigble) clear cut. injury no.2 and 11/2” from the right nipple. 4. Gun shot wounds of entry 1” x 1” into abdomen upper part. 9th below left arm pit 7th outer to unsclicus.” “Ante-mortem injuries of Ram Balak, son of Gaya on (L) face from (L) ear to lower jaw. Maxillary bones (L) mandible bone of (L) skull cut. 2. Incised wound on (L) neck 3.0 x 1.0 cm x bone deep middle. 3. Incised injury 8.0 x 0.5 cm x muscle deep on mid, upper abdomen. region scapular region, oblique 2.0 x 1.5 cm direction from (L) to (R). Scapular bone (L), back of IV & V rib (L) broken found at (R) The cause of death spelt out in the autopsy reports of the deceased persons was shock and haemorrhage as a result of ante-mortem injuries which they had suffered. (22) It is signification to mention here that in their depositions in the trial Court, Dr. Adarsh Sanghai (P.W.4), Dr. J.N. Bajpai (P.W.5) and Dr. R.R. Aacharya (P.W.16) have reiterated the said cause of death of the deceased (1) unknown person, (2) Shiv Balak and (3) Ram Balak, respectively. (23) P.W.4-Adarsh Sanghai has deposed before the trial Court that on 09.10.1980, he was posted for post-mortem duty and on that date, at about 01:30 p.m., he conducted the post-mortem of the dead body of an unknown person, which was sent by S.O. Bighapur and brought it by C.P.282 Ram Bilash Yadav in a sealed condition and identified it by him. On examination, he initially found that the age of the deceased was about 30 years; it had been almost three days old since he died; the body physique was average; the stiffness of the body after death had ended; the decomposition of the body had begun; the body was covered with mud; the insects were crawling on the body; and blisters were present on the whole body. He further stated that on internal examination, it was found that the brain was decomposed; in the bone of pleura, one bending, two pellete, about half litre blood and fluid were found; both right and left lungs were torn; heart was torn and empty; the upper part of the sternum bone was broken; about 50 grams of semi-digested food was present in the stomach; small intestine was empty; and faces were present in the large intestine. He has further deposed that he found five big pellet and one piece of bending from the body of the deceased, which was sealed and sent to S.P. Unnao. The report of post-mortem is in his handwriting and signature (Ext. Ka.3). The death of the deceased could be attributable on 06.10.1980 at 05:30 p.m. Injuries no. 4 and 5 could not be caused by fire arm. He further stated that it is difficult to distinguish between the injuries caused soon before the death and within half an hour immediately after the death. In his cross-examination, P.W.4-Dr. Adarsh Sanghai has deposed that the clotting of the blood starts immediately after death. When the blood starts clotting, the dripping of the blood decreases. After the death, skin and subcutaneous tissue etc. starts getting hard. It is difficult to say that within 10-15 minutes, it becomes hard. After hardening, the inflicted injuries could be distinguishable from earlier injuries of death. He had minutely observed the injuries found during the post-mortem. Injuries No. 2, 3, 4, and 5 were ante-mortem. He further stated that at this moment, it is difficult to say where there was blood in these injuries as it is not mentioned in the report. He is not the ballistic expert. As per his opinion, bending could go into the body on firing from three feet with a pistol. The blackening and tattooing will not come in the condition of wearing clothes. One injury i.e. No.1 appears to have been inflicted within three feet. The death is also possible on 06.10.1980 at around 7-8 pm. The name and address of the deceased was unknown at the time of post-mortem. In the winter season, the blood coagulates quickly. (24) P.W.5-Dr. J.N. Bajpai, in his examination-in-chief, has deposed that on 08.10.1980, he was posted as Radiologist at District Hospital, Unnao and on that date, at 04:00 p.m., he conducted the post-mortem examination of the deceased Shiv Balak Singh, which was brought by Constable 354 C.P. Ram Pal Singh, Police Station Bighapur in a sealed condition and identified it by him. On examination, initially he found that the age of the deceased was about 40 years and it had been almost 2 days since he died. The physical appearance of the deceased was normal. There was mud on the body of the deceased. The post-death stiffness was not present and no sign of rot was found. He further deposed that on internal examination, he found that right side bone of the chest and seventh rib bone were broken; eighth and ninth rib on the left side of the chest were broken; the pleura on the right side had ruptured; about half a liter of blood was present in the pleural cavity; the right lung was torn; the membrane above the heart was also torn and was empty; the peritoneum was also torn; one liter of fluid was present in abdominal cavity; stomach and small intestine were empty and stool was present in large intestine; liver was ruptured on the right side; the spleen was also torn. He further stated that he prepared the post-mortem report (Ext. Ka. 4). The death could be possible on 06.10.1980 at 05:30 p.m. He also stated that gun shot injury would come from firing from close range because blackening was present. If injury no. 1 is caused immediately after death, it is difficult to distinguish it as ante-mortem and post-mortem. He stated that in his opinion, injuries no. 3 and 4 of the fire arm cannot be done after the In his cross-examination, P.W.5 has deposed that he cannot say from how many shots, injuries no. 2, 3 and 4 would have come. He cannot say whether injuries no. 2, 3 and 4 came from one shot or from three shots. These injuries could be possible on 06.10.1980, at 7-8 p.m. (25) The evidence of P.W.16- Dr. R.R. Acharya shows that on 13.10.1980, he was posted as Orthopedic Surgeon in District Hospital, Unnao. On the said date, at 1:30 p.m., he conducted the post-mortem of the deceased Ram Balak, son of Gaya Prasad, which was brought by C.P. 359 Ram Nath Singh of police station Bighapur in a sealed condition and identified by him. On examination of the body of the deceased Ram Balak, he opined that the deceased was about 40 years old and it had been almost 7 days since he died. On internal examination, he found that the left side skull bone was chopped off; the stomach and small intestine were empty; gas and faces were present somewhere in the large intestine. He further stated that injuries no. 1, 2 and 3 was inflicted with a sharp edged weapon and injury number 4 was inflicted by a fire arm. He had prepared the post-mortem report (Ext. Ka. 45) at the time of inspection, which was in his handwriting and signature. The death of the deceaed could be possible on 06.10.1980 at 05:30 pm. In cross-examination, he has stated that the death of the deceased could be more possible on account of injury no.1. The injury no.1 was more fatal than injury no.4. He further stated that it could not be possible for a man to survive after injury no.1. Injury no.1 could also be possible after death. He also stated that advance sign of decomposition in the dead body was present. The maggots flies were present in the dead body of the deceased. The skin was shriveled and the skin was also come out somewhere from the dead body. He could not find the mud on the dead body of the deceased. (26) The case was committed to the Court of Session in the usual manner where the convicts/appellants Ringu Pasi and Babu Pasi were charged under Sections 302 read with Section 34 I.P.C. for committing the murder of Sheo Balak and Ram Balak and under Section 404 I.P.C. for having taken arms from the deceased persons; and the acquitted accused, namely, Ramesh, Madan Lal, Ram Swaroop, Ganga Sewak, Neta alias Kunni, Chandra Kishor, Lalaunoo, Ram Roop and Ram Chandra, were charged under Sections 201, 148, 302/34, 302/114 I.P.C. They pleaded not guilty to the charges and claimed to be tried. Their defence was of denial. (27) During the trial, in all, the prosecution examined 16 (sixteen) witnesses, namely, P.W.1 Upendra Singh, P.W.2 Lallu, P.W.3 Dr. Singh and P.W.16 Dr. R. R. Aacharya. Out of sixteen witnesses, three of them, namely, Upendra Singh (P.W.1), Lallu (P.W. 2) and Krishna Mohan (P.W.6) were examined as eye-witnesses. (28) P.W.1-Upendra Singh, in his examination-in-chief, has deposed before the trial Court that he is the resident of village Hamirpur, police station Bihar. Village Usiya police station Bighapur is about 25 km away from his village. The deceased Shiv Balak and Ram Balak was his father and uncle, respectively. The name of his grand-father is Sri Gaya Prasad Singh. His uncle Ram Balak lived separately from his father. He was studying in Kanpur at the time of incident. Chandrika Pasi of his village was murdered about 7-8 months before this incident, in which his uncle Ram Balak and Raj Narayan etc. were challaned. Raj Narayan happens to be his uncle in a distant relationship. Dinesh Chandra and Harish Chandra, who were accused in the murder of Chandrika Pasi, is a resident of village Bhagwant Nagar. The hearing in Chandrika’s murder case was fixed on 06.10.1980 at Unnao. On 06.10.1980, he was coming from Kanpur to his village by bus. This bus goes from Kanpur to Buxar. Buxar lies ahead of Bhagwant Nagar. The bus starts from Kanpur at 3 or 3.30 pm in the evening. The number of that bus was U.T.T. 7367. For going from Kanpur to Buxar, the bus goes via Unnao. When the bus arrived at Unnao Bus Station, his father (deceased Shiv Balak) and uncle Ram Balak (deceased), grand-father Gaya Prasad (informant), Harish Chandra and injured Dinesh Chandra, Ram Balak Yadav resident of Pituakheda, Shivadhar Singh resident of Munaukheda, Ram Das Lohar resident of Hamirpur, Ram Balak Pasi resident of Hamirpur met him. At that time, his father (deceased Shiv Balak) was armed with 12 bore licensee gun; his uncle Ram Balak (deceased) was armed with rifle; and Dinesh Chandra (injured) was armed with rifle. They all were sitting on that bus. He was sitting on a two seater with his grand- father. His father (deceased Shiv Balak), uncle (deceased Ram Balak) and Harishchandra were seated behind him on the bus. Shivdhar, Ram Das, Ram Balak Yadav and Ram Balak Pasi were sitting on the rear seat of the bus. Babu Lal Pasi and Ringu Pasi (convicts/appellants) were also sitting from Unnao Bus Station on this bus. He knew both of them from earlier. Both of them used to come at Chandrika’s house of his village with Babu Lal Pasi Master. After this incident, Babu Lal Pasi Master was killed in After crossing Unnao, the bus reached at Bighapur Bus Station, where some passenger got off and some passengers boarded on the bus. The tiraha (an intersection of three roads) of Usiya is about 4-5 kms from Bighapur Bus Stand. For going from Bighapur to Bhagwant Nagar, the bus goes through Usiya tiraha (an intersection of three roads). After running from Bighapur, the bus stopped at the tiraha (an intersection of three roads) of Usiya. When the bus went 50-60 yards from the tiraha of Usiya, a loud sound of “jksdks jksdks (stop stop)” inside the bus came behind it and 3-4 fires also happened in the bus. When he looked back, he saw that his father (deceased Shiv Balak) and his uncle (deceased Ram Balak) got shot and they rolled on the seat. The bus stopped after running about 100-125 yards from the place where the bullet was fired. He saw that Babu Lal Pasi, Ringu Pasi and a 22-24 year’s old boy wearing red bushirt were standing near the seat of his father and uncle and all of them were armed with Katta (gun). Later on he came to know that the name of the boy wearing a red bushirt was Vinod Kumar. The rifle of his uncle was snatched by accused Babu Lal Pasi and his father’s gun was snatched by accused Ringu. All three people abused the passengers and asked them to get off the bus and they had said that “ugh mrjksxs rks xksyh ekj nasxs”. One boy wearing khakhi paint and bushirt was standing near Dinesh Chandra and that boy started to snatch the rifle of Dinesh and dragged Dinesh down from the next door of the bus and snatched his rifle. On this, the people sitting inside the bus got out and hid here and there. They (P.W.1 and his grand-father Gaya Prasad) also got down and got under cover. P.W.1 has further deposed that after getting down from the bus, he saw Babu Lal Master standing on the side of the road with a single bore gun in his hand and along with him, 10-12 men were standing by carrying अद्धी (half) guns and Katta (gun) and they also started firing. When the passengers went to the north, Babu Lal Master said that “lkyks dh yk’k ckgj fudky yks" (take out the dead body of the bastard). On this, 3-4 men entered the bus and brought out the dead bodies of his father and uncle and carried them towards the fields on the south side of the road. On the saying of Babu Lal Master, one of his companions wiped blood inside the bus with a towel. When an unknown passenger of a bus was running towards east, then, two men chased him and shot him 100-125 yards away from the bus, from which he died. Two miscreants also hanged his dead body and took it towards the south. P.W.1 has further stated that about 15-16 fires took place there. The people around were coming on listening to the sound of fire and had seen the incident. The people came near them (P.W.1, his grand-father and other passengers) after the accused fled. His grand-father had a conversation with those people and his grand- father asked the names of the accused. A passenger, who had landed on the Usiya Tiraha, had also come there and he told his name as Krishna Mohan. Krishna Mohan and other villagers had told the name of the assailant, who was wearing the Khakhi paint and bushirt, as Babu Lal Dom and also told the names of other accused as Madan Sevak, Kunni alias Neta, Chandrakishore Luhar, Babulal Pasi, Master Babu Pasi, Ringu Pasi, Laloni Pasi, Magraya. Out of these, he already knew Babu Pasi, Ringu Pasi and Kunni. Apart from these, there were also 3-4 assailants, whose names were not given by the villagers nor known to them. This incident is around 5:30 pm in the evening. The passengers had already gone but he (P.W.1), his grand-father, Das Lohar, driver & conductor of the Bus went to Bihar Police Station by bus and when reached at Takia Bus Stand, his grand-father had talked to someone, then, that person told that the place of incident comes under police station Bighapur. Thereafter, they returned from that bus for Bighapur. After coming to Bighapur, the bus was parked at the bus station. The police station Bighapur is inside the basti from Bighapur Bus Station, where bus could not go. He further stated that he scribed the report on the dictation of his grand-father and whatever his grand-father told him, he wrote the same in the report and handed it over to his grand-father. He has proved the report (Ext.Ka.1). Thereafter, he, Shiv Adhar Singh, Ram Balak Yadav, Ram Balak Pasi, Ramdas Lohar went to village Hamirpur for giving information. P.W.1 had further deposed that his father and uncle had weared the wrist watch. His father had also taken towel (angaucha). The miscreants had taken away the towel (angaucha) and wrist watch. His father and uncle had a lisence, which the miscreants also brought. At the time of incident, Dinesh Chandra sustained injuries on his hand while taking away his rifle by the miscreants. At that time, 2-3 passengers had also sustained injuries. P.W.1 has also stated that he had gone to the District Jail, Uanno to identify the miscreants, wherein he identified Chandra Kishore Luhar. He further stated that he had seen Chandra Kishore Luhar for the first time at the time of the incident and thereafter, at the time of identification proceedings and in between, he had not seen to him (Chandra Kishore Luhar). He did not even know him (Chandra Kishore Luhar) before it. P.W.1 has stated that his father Gaya Prasad is 75 years old and now he did not see and hear properly. Jageshwar is his younger uncle, who lived separately from him. He had told the number of gun, bicycle and license to the Inspector after looking at the documents of the house. On 07.10.1980, the body of his father Shiv Balak was found in the field and he identified it. (29) P.W.2-Lallu, in his examination-in-chief, has deposed that he lives in village Mardan Kheda, Usiya. He knows Babu Lal Master, who has been killed. Babul Lal Master was the resident of village Usiya and was a teacher in Katra Diwan Kheda. He knew Chandrika resident of Hamirpur. The maternal house of Chandrika was at village Katra, Diwankheda. Babu Lal was the master and Chandrika was the passi (iklh). Before this incident, Chandrika was killed. He had seen the mother of Chandika coming and going to the house of Babu Lal Master after the killing of Chandrika. It was about 16-17 months ago from today (27.02.1982). He went to Bighapur market. It was 05:00 or 05:15 in the evening. He came to bus stand from Bighapur market, where he met Jagmohan and Krishnamohan. He had to leave for his home by bus. When the bus came from Unnao going towards Buxer, Jagmohan and Krishna Mohan boarded the same bus. He also stated that EkS ftl lhV ij CkSBk Fkk mlds vkxs ,d lhV NksMdj rhu lhVj okyh lhV ij ,d vkneh jk;Qy fy, o ,d cUnwd fy, o rhljk vkneh [kkyh gkFk cSBs FksA (leaving one seat in front of his seat where he was sitting, on the three seater seat, a man with a rifle, another man with a gun, a man with empty handed were sitting). The man, who was empty handed, was sitting on the side of the window and the man, who was armed with rifle, was sitting in the middle of them. He had seen Babu Lal Pasi and Ringu Pasi (accused) sitting on the two-seater seat next to these three people. He knew both of them before. A man was also sitting behind the driver’s seat facing them. When the bus was about to leave, Vinod Pasi resident of Kusia had boarded inside the bus from the back door of the bus. He (Vinod Pasi) was wearing a red shirt. He (Vinod Pasi) came and stood near Ringu (accused). Babu Lal Dom (accused) resident of Usiya had also boarded inside the bus from the front door, who was wearing khakhi paint and bushirt. He (Babu Lal Dom) was standing next to the man armed with the rifle sitting behind the driver’s seat. He knew Vinod and Babu Lal Dom (accused) prior to it. P.W.2 had further stated that the bus had reached the tiraha (intersection road) of Usiya from Bighapur at around 5.30 pm, where Krishna Mohan got down from the bus. He (P.W.2) had to get down at Akwabad, which was ahead of Usiya Tiraha. He further stated that when the bus would have reached about 50 yards from Usiya tiraha, then, Babu Lal Pasi and Ringu Pasi (accused) stood up; made the sound of jksdks jksdks (stop stop); got up from their seats; and came to the gallery of the bus and from there, they (Babu Lal Pasi and Ringu Pasi) fired shot from their two kattas upon the men, who were armed with rifle and gun. Vinod had also fired with a katta. The gunman and rifleman had rolled on their seats as soon as shot. Thereafter, the bus stopped west of the culvert after covering a distance of about 100 yards. Babu Lal Pasi (accused) said that lkyks fudy dj Hkkx tkvks vxj dksbZ cksysxk rks mls Hkh xksyh ekj nsxs (bastard go out and run away, if anyone speaks, then they will shoot him too). Thereafter, the gun and rifle were snatched from the deceased by Ringu and Babu Lal Pasi, respectively. Babu Lal Dom (accused) also tried to get rid of the rifle from the second man but when that second man did not relieve the rifle, then, Babu Lal Dom jolted him and dragged him out of the bus and snatched the rifle outside. Thereafter, all the passengers got out of the bus and started running away. He (P.W.2) also got out of the bus and covered himself behind a tree on the side of the road. When he came out of the bus, he saw Babulal Master, Madan Pasi, Swaroop, Ram Roop, Ganga Sevak, Ram Chandra, Kunni and four more men to whom he did not recognize, were also standing north of the bus. Babu Lal Master had a gun in his hand and the rest of the people had अद्धी (half) guns and Katta (gun). Babu Lal Master and his associates had fired 10-12 shots. Babu Lal Master said that bu lkyks dh yk’ks [khp yks (drag the dead bodies of these bastard). On this, Ramesh, Madan, Chandra Kishore and Lalaunu went inside the bus. Chandra Kishore and Lalaunu were armed with Katta. Ramesh and Madan were empty handed. These four men took two dead bodies from the bus, hung them and went south. Thereafter, Babu Lal Master said that cl dk [kwu ikasN Mkyks (wipe the blood of the bus), on which Ramroop Pasi went inside the bus after soaking a towel. P.W.2 had also stated that a man, who ran towards north, was chased by Ram Chandra and Kunni and both of them fired at him, thereupon he had fallen and thereafter, his dead body was taken away by Ram Chandra and Kunni towards South direction. Later on all the accused were gone. After the accused left, he went near the bus. Jagmohan and Krishna Mohan also came near the bus and many more people from the village had come. A man had asked them the names of the miscreants, then, they had told the names of the miscreants. After asking the names of the miscreants, that person also asked them the names and addresses of the people. He stated that apart from these three deceased persons, he saw blood coming out from the injuries of 2-3 persons. Thereafter, 6-7 men of the same bus sat down and went towards Takia. He stated that Takia Patan is the same place. He (P.W.2) was staying there. Later on, a lot of people had gathered there. After about half an hour of departure, the same bus came from the side of the Takia and went towards Bighapur. He already knew all the accused. (30) P.W.6-Krishna Mohan, in his examination-in-chief, has deposed that his grocery shop is in village Usiya. It is a matter of about a year ago. He had gone to the market of Bighapur to get the items of his shop. Around 5 o'clock in the evening, he came to Bighapur Bus Stand with his luggage to go to his village. At Bighapur bus stand, he met Lallu Yadav resident of Mardan Kheda and Jagmohan Singh resident of Akbabad. Then, he sat on the bus going towards Buxer at bus stand. All three of them (P.W.6, Lallu Yadav and Jagmohan Singh) sat on the bus. Inside the bus, he saw Ringu, Babu also sat in the bus. These people (Ringu and Babu) were sitting on a two-seater seat in the bus and next to them, he saw three men sitting on the three-seater seat, out of which, one had a rifle and the other had a double barrel gun. The man armed with the rifle was sitting in the middle and the empty-handed man was sitting at the window. A man was sitting behind the seat of the driver with a rifle and his face was towards them (P.W.6 and others). When the bus was about to run, his acquaintances Vinod Pasi and Babu Lal Dom also boarded. Babu Lal Dom was then wearing a khaki paint bushirt and Vinod Kumar was wearing a red shirt. Babu Lal was standing near the rifle man who was sitting behind the driver of the bus and Vinod stood near Ringu Pasi. He was sitting in the back seat of the bus on which 4-5 other people were sitting besides him (P.W.6). The conductor sat in the front seat near the window. After moving from Bighapur, the bus reached Usiya Tiraha around 5:30 pm. He got off the bus at the Tiraha. The bus had moved forward thereafter. When the bus had moved forward about 50 yards, then, he heard the sound of gunfire from inside the bus. Afterwards, the bus stopped in front of the culvert about 40-50 kms towards the Tiraha. He saw the passengers of the bus getting out of the bus. Some of the passengers were standing here and there and some had fled. He saw 10-12 men standing near the bus, among them Babu Lal Master armed with single bore gun and Coolie alias Neta, Madan Lalaunu, Chandra Kishore, and 3-4 other men whom he did not recognize, armed with अद्धी (half) guns and Katta (gun), were there. When the bus stopped, these people started firing. Babu Lal Master had asked to take out the dead body and at his behest, Ramesh, Chandra Kishore, Madan and Lalaunu had entered the bus and brought out the bodies of two men. These four people had gone towards south with the corpse. Outside the bus, a passenger had run towards the east, then, he was told by Kunni and Ramroop and later on P.W.6 said that Coolie and Madan had run. Both of them had killed him. Thereafter, P.W.6 has said that Coolie and Ram Chandra had shot him and had gone towards south with his dead body. When the bus stopped, Ringu armed with gun and Babu Pasi armed with a rifle came out from the bus. Babu Lal Dom had dragged the person outside the bus, who was armed with rifle and sat behind the seat of driver. Babu Lal Master had asked to wipe the blood of the bus, on which Ramroop went inside after soaking the towel. He had heard about 15-16 fires in total. He saw this incident from where he had landed after moving a little further. Apart from him, Harish Chandra, Ram Kumar and many other villagers had seen this incident. After the accused had fled, they went near to the bus. On being asked, the names and addresses of the accused were given. Accused went towards the boaring of Babu Lal Master in south side. He also stated that to go from Bighapur to Usiya, one has to take a ticket for Akbabad and ticket of Usiya Tiraha is not being given. On that day, he had taken the ticket of Akbabad in the bus from the conductor itself. Babulal Master had been murdered. (31) After completion of prosecution evidence, statements of accused persons were recorded under Section 313 Cr.P.C., who denied the alleged incident and stated before the trial Court that they have been falsely implicated due to enmity. (32) The trial Court has not placed reliance upon the testimony of P.W.6-Krishna Mohan as his testimony is self-contradictory on material points. However, the trial Court believed the evidence of Upendra Singh (P.W. 1) and Lallu (P.W. 2) and convicted and sentenced the appellants, Babu Pasi alias Babu Lal Pasi and Ringu Pasi in the manner stated in paragraph-3. It, however, acquitted the remaining accused, namely, Ramesh, Madal Lal, Ram Swaroop, Ganga Sewak, Neta alias Kunni, Chandra Kishore, Lalaunoo, Ram Rup, Ram Chandra. It is pertinent to mention that the State of U.P. has not challenged their acquittal by preferring an appeal under Section 378 (1) Cr. P.C. (33) As mentioned earlier, aggrieved by their convictions and sentences, the convicts/appellants Babu Pasi alias Babu Lal Pasi and Ringu Pasi preferred the instant criminal appeal and during pendency of the instant appeal, appellant no.1-Babu Pasi alias Babu Lal Pasi died and the instant appeal filed on his behalf stood abated vide order dated 07.02.2019. Now, the instant appeal survives only in respect of appellant no.2-Ringu Pasi. (34) Sri H.B. Singh, learned Counsel for the appellant no.2-Ringu Pasi, has submitted that I. The alleged incident took place on 06.10.1980 at 05:30 p.m., whereas the FIR of the said incident was lodged on 06.10.1980 at 07:50 p.m. at police station Bighapur, District Unnao, which is situated at a distance of 3 miles i.e. 04.83 kms, from the place of the incident, hence the F.I.R. has not been lodged promptly. Furthermore, the F.I.R. runs about four pages, which is voluminous and casts doubt that it has been lodged by much consultation and deliberation. II. The informant Gaya Prasad, injured Dinesh Chandra Shukla, injured Devi Deen, driver and conductor of the bus, were not examined by the prosecution though they are material witnesses, which casts doubt on the reason for the purported presence of P.W.1 and P.W.2 at the place of the incident and also non-examination of them is fatal to the prosecution case. III. The trial Court has failed to take cognizance of the fact that no motive has been attributed to the appellant no.2-Ringu Pasi for commission of the offence, therefore, the appellant no.2- Ringu Pasi could not have been found guilty of the charge levelled against him. IV. P.W.1 is the son of the deceased Shiv Balak and nephew of the deceased Ram Balak, whereas P.W.2 was having previous enmity with co-accused Ramchandra. Furthermore, father of appellant no.2-Ringu Pasi, namely, Baijnath, was the surety of the accused in the cross case filed by P.W.2-Lallu against Ramchandra, Palangi and others. On account of the enmity, P.W.2 had disclosed the names of the accused/appellants to the informant Gaya Prasad and P.W.1-Upendra Singh and on that basis, appellants were falsely implicated in the case. Hence, these two eye-witnesses i.e. P.W.1 and P.W.2 are interested and partitioned witnesses and as such, their testimony have to be scrutinized with caution but the trial Court committed a serious error in not appreciating the evidence of these eye- witnesses with great care and caution. V. Though there were gunshot injuries inflicted upon the deceased Shiv Balak and Ram Balak but no recovery of the weapon of assault was made. VI. The evidence of P.W.1 and P.W.2 indicates that there was prior enmity between the deceased and family members of the accused persons and their companions because of which false implication cannot be ruled out. VII. Thus, according to the learned counsel, the prosecution has failed to establish the charge of murder against the appellant no.2-Ringu Pasi beyond reasonable doubt. (35) Ms. Smiti Sahai, learned Additional Government Advocate appearing on behalf of the State, on the other hand, supported the impugned judgment of the trial Court and argued that :- I. The incident took place at 5.30 pm, while the FIR was lodged at 07:50 pm on the basis of the written report filed by the informant Gaya Prasad. The police station was admittedly situated at a distance of 4.82 Kms (3 miles) from the place of occurrence. There is no delay in lodging the FIR. Furthermore, the FIR contains a detailed account of the nature of the incident and spells out the role is attributed to the appellants. II. The evidence of the eye-witnesses supported by other ocular and documentary evidence has been rightly examined and appreciated by the trial court. III. No adverse inference can be drawn against the prosecution for non-examination of the informant Gaya Prasad Singh and other witnesses because the prosecution has fully established the charge against the appellants beyond reasonable doubt by leading reliable and convincing evidence. IV. In the presence of direct evidence, motive recedes to the background. Therefore, the prosecution does not need to prove the motive of the appellant no.2-Ringu Pasi to murder the deceased. V. On these grounds, it has been urged on behalf of the State that the finding of guilt which was arrived at by the trial Court, is not liable to warrant any interference in appeal. (36) We have heard the learned counsel for the respective parties at length and have carefully gone through the impugned judgment and order of conviction and sentence passed by the learned trial Court. We have also re-appreciated the entire evidence on record, particularly the depositions of P.W.1 Upendra Singh and P.W.2- Lallu. We have also considered the injuries found on the three dead bodies of the deceased persons and injuries found on the body of the two injured persons. (37) The crucial question in this appeal is whether the evidence of the three eye witnesses viz. Upendra Singh P.W. 1, Lallu P.W. 2 and Krishna Mohan P.W.6 inspires confidence or not. Our considered answer to the said question is in the negative. We may straightway mention that these witnesses had also implicated 09 other co-accused persons and all of them have been clearly acquitted by the learned trial Court on all counts. As stated earlier, the State of Uttar Pradesh has not challenged the acquittal of these nine acquitted persons. (38) The trial Court, after analyzing the evidence of P.W.6-Krishna Mohan, formed the opinion that he gave self-contradictory version on most material points viz. as to who chased the unknown person and shot dead and took his body, therefore, his presence on the spot is doubtful. In this backdrop, the trial Court has rightly not placed reliance upon the testimony of P.W.6- (39) Now, out of two eye witnesses i.e. P.W.1 and P.W.2, the evidence of Upendra Singh P.W. 1 can be straight way rejected by us on the ground that although the deceased had been done to death at about 05:30 p.m., on 06.10.1980, Upendra Singh (P.W.1) could not identify the acquitted accused/convicts-appellants. He could only identify Chandra Kishore (acquitted accused) at the test identification parade held on 03.01.1981, by Sri Janardan Singh, the Special Executive Magistrate, Unnao (P.W. 10). In our view, if P.W.1 (Upendra Singh) could not identify the appellants after about three months after the incident what is the sanctity to be attached to his nominating the appellants in his statement in the trial Court. More so, P.W.10-Sri Janardan Singh, the Special Executive Magistrate, Unnao, in his cross-examination, had deposed before the trial Court that informant Gaya Prasad made one mistake in identifying the other accused persons; Upendra Singh (P.W.1) also made nine mistakes in identifying the other accused persons and none of them were identified by him; witness Dinesh Chandra (injured) made ten mistakes in identifying the ten accused persons. P.W.10, in his cross- examination, had also deposed before the trial Court that “xokgku us tks c;ku esjs lkeus fn, Fks “MdSrh o dRy djrs oDr EkkSds ij ns[kk FkkA” (The statement, which was given by the witnesses, before him that “while committing robbery and murder, saw on the spot”). It means that the witnesses i.e. P.W.1-Upendra Singh, informant Gaya Prasad, injured Dinesh Chandra, stated before P.W.10-Sri Janardan Singh that they saw the identified accused persons while committing robbery and murder on the spot. But the prosecution case is not that the accused/appellants had committed robbery and also murdered the deceased. This is all the more so because in his cross-examination, P.W.1-Upendra Singh has deposed that the names of the accused/appellants were stated to him after the incident by Krishna Mohan, Lallu Mohan (P.W.2), Jagmohan Singh and other nearby villages and on that basis, he knew the names of the accused persons after the incident. (40) Apart from the aforesaid, P.W.1-Upendra Singh, in his cross- examination, had deposed before the trial Court that at the time of the incident, there were about 60-70 passengers in the bus, out of which, six man were armed with fire arms, however, out of these six man, he didn't see anyone firing. He also deposed in the cross-examination that he could not see how many people fired inside the bus. P.W.1-Upendra Singh had further deposed that at the time of the incident, he (P.W.1) and his grand-father Gaya Prasad (informant) were sitting in two seater seat and behind 2-3 seat of them, his father Shiv Balak (deceased), his uncle Ram Balak (deceased) and Harishchandra were sitting in three seater seat. Shivadhar, Ram Das, Ram Balak Yadav and Ram Balak Pasi were sitting in the rear seat of the bus. Injured Dinesh Chandra was sitting behind the seat of driver with his rifle. He also stated that he knew Babulal Pasi and Ringu Pasi (appellants) prior to the incident as they used to come to Chandrika Pasi’s house and Babu Lal Pasi Master before the incident. However, this statement of P.W.1-Upendra Singh was denied by the accused Ringu Pasi and Babu Lal Pasi in their statement under Section 313 Cr.P.C. He said that he did not know Chandrika Pasi. (41) It also comes out from the depositions of P.W.1-Upendra Singh that both appellants Babulal Pasi and Ringu Pasi boarded the bus from Unnao Bus Stand. P.W.1, in his cross-examination, has stated that “tgkW eS cSBk Fkk ogh ls cSBs&CkSBs esjh ckrphr esjs firk o pkpk ls gqbZ Fkh” (from where he sat, he had a conversation with his father and uncle while sitting). Meaning thereby, from Unnao Bus Station to the place of occurrence, he (P.W.1) had a conversation with his father and his uncle, who sat behind 2-3 seats in three seater seat. At that relevant time, both accused/ appellants Babu Lal Pasi and Ringu Pasi were sitting just near to the seat of his father, his uncle and Harishchandra. In such circumstances, Babu Lal Pasi and Ringu Pasi (appellants) were very well aware that P.W.1-Upendra Singh and his grand-father Gaya Prasad (informant) are the family members of Ram Balak and Shiv Balak (deceased) and Harish Chandra who sat with Ram Balak and Shiv Balak (deceased) in the window seat of three seater seat of the bus, was also known to the deceased. P.W.1-Upendra Singh, in his cross-examination, has deposed that “fdlh cnek’k us esjs mij Qk;j ugh fd;k u eq>s ekjk ihVk u esjs ikl vk;kA” (none of the miscreants had fired upon him nor assaulted him nor came near to him). He has also stated that “fdlh cnek’k us eq>ls :i;s iSlks ds gksus ds ckor ugh iwNk FkkA” (none of the miscreants had asked him about the money). P.W.1-Upendra Singh had stated before the trial Court that when the bus went 50-60 yards from the tiraha (an intersection of three roads) of Usiya, a loud sound “jksdks jksdks” (stop stop) inside the bus came behind him and 3-4 fires also happened in the bus and then at this moment, he turned back and saw that his father Shiv Balak and his uncle Ram Balak got shot; they rolled on the seat; Babu Lal Pasi, Ringu Pasi and a 22-24 year’s old boy wearing red bushirt were standing near the seat of his father and uncle with Katta (pistol); and snatched the gun of his father and rifle of his uncle. P.W.1, in his cross-examination, has categorically admitted the fact that “Qk;j gksus ij eS vius firk o pkpk dh vksj nkSMk ugh FkkA fdlh Qk;j djus okys dks idMus dh dksf’k’k eSus ugh dh FkhA” (after firing, he did not run towards his father and uncle. He did not try to catch any person who fired). (42) Considering the aforesaid circumstances, it is quite strange/improbable that Ram Balak, Shiv Balak (deceased) and Harish Chandra were sitting together in three seater seat in the bus; after shot to Shiv Balak and Ram Balak with Katta, accused/ appellants had neither made any injury to Harishchandra who sat in the window seat with Shiv Balak and Ram Balak nor the accused/appellants had made any effort to cause injuries to P.W.1 and his grand-father Gaya Prasad even knowing very well that deceased Shiv Balak was the father of P.W.1 and deceased Ram Balak was the uncle of P.W.1. It is also quite surprising that P.W.1-Upendra Singh and informant Gaya Prasad did not try to save the deceased persons, who were their family members, from grip the accused/appellants nor raised any alarm or made hue and cry at that moment. But surprisingly, they (P.W.1, informant Gaya Prasad, Harischandra and other passengers) all peacefully took their items from the bus; got down from the bus; hid behind the tree; and from there all three persons and other passengers saw the accused/appellants bring out the dead bodies of the deceased (Ram Balak, Shiv Balak). P.W.1 had also admitted the fact that he did not see any one to fire upon his father Shiv Balak and his uncle Ram Balak, however, he knew the name of these accused persons on the saying of Krishna Mohan, Lallu Yadav (P.W.2), Jagmohan and other villagers, who were said to be travelling with the said bus. But surprisingly, Krishna Mohan, Jagmohan and other villagers were not examined by the prosecution. All the circumstances as discussed hereinabove shows that the testimony of P.W.1-Upendra Singh is not credible and creates doubt upon the prosecution story and it appears that P.W.1-Upendra Singh and his grand-father Gaya Prasad were not present at the place of the incident (43) We are also not inclined to place any reliance on the testimony of Lallu P.W. 2. We have our grave doubts about his claim of having seen the incident. In his examination-in-chief, he stated that on the date of the incident, he went to the Bighapur Market and at about 05:00-05:15 p.m., he went from Bighapur Market to Bighapur Bus Stand, where he met Jagmohan and Krishnamohan. All of them boarded on a bus coming from Unnao and going towards Buxer. After boarding on the bus, he saw that leaving one seat in front of his seat where he was sitting in the bus, on the three seater seat, a man with a rifle, another man with a gun, a man with empty handed were sitting, whereas Babu Lal Pasi and Ringu Pasi (accused) were sitting on the two- seater seat next to these three peoples. He also saw that a man was also sitting behind the driver’s seat by facing face towards them. When the bus was about to leave, Vinod Pasi resident of Kusia wearing a red shirt had boarded inside the bus from the back door of the bus and stood near Ringu (accused). Babu Lal Dom (accused) resident of Usiya had also boarded inside the bus from the front door, who was wearing khakhi paint and bushirt and stood next to the man armed with the rifle sitting behind the driver’s seat. He knew Babu Lal, Ringu Pasi, Vinod and Babu Lal Dom (accused) before. P.W.2 has further deposed that Krishna Mohan got down from the bus at tiraha (intersection road) of Usiya at around 5.30 pm but he (P.W.2) had to get down at Akwabad, which was ahead of Usiya Tiraha. He further stated that when the bus would have reached about 50 yards from Usiya tiraha, then, Babu Lal Pasi and Ringu Pasi (accused) stood up; made the sound of jksdks jksdks (stop stop); got up from their seats; and came to the gallery of the bus and from there, they (Babu Lal Pasi and Ringu Pasi) fired shot from their two kattas upon the men, who were armed with rifle and gun. Vinod had also fired with a katta. Thereafter, the gunman and rifleman had rolled on their seats as soon as shot. (44) As per the aforesaid depositions of P.W.2, it transpires that accused Babu Lal Pasi, Ringu Pasi and Vinod armed with Katta fired upon the men armed with rifle and gun sat in the three seater seat. It is admitted by P.W.2 also that the man, who was empty handed and sitting with rifleman and gunman in a window seat of three seater seat, did not receive any injury. P.W.1, in his cross-examination, had stated that the names of the accused persons were stated to him and his grand-father Gaya Prasad (informant) by Krishna Mohan, Lallu (P.W.2). From the depositions of P.W.1, it transpires that accused/appellants were very well aware of the relationship of the deceased with P.W.1, informant and Harishchandra, still the accused/appellants did nothing to them and all of them were allowed by the accused/appellants to keep their articles from the bus, got down the bus and hid behind the tree. P.W.2 had also supported the statement of the P.W.1. Thus, it appears that the testimony of P.W.2 is not trustworthy. (45) P.W.16-Dr. R.R. Acharya, who conducted the post-mortem report of deceased Ram Balak, has stated before the trial Court that injuries no. 1, 2 and 3 (incised wounds) could be attributable by the sharp edged weapon, whereas injury no.4 could be attributable by fire arm. In his cross-examination, P.W.16-Dr. R.R. Acharya has deposed that “e`rd dh e`R;q pksV ua0 1 ls gh gksuk vf/kd laHko gS” (the death of the deceased is mostly possible by injury no.1). He further stated that “pksV ua0 1 ua0 4 dh vis{kk vf/kd izk.k?kkrd FkhA” (injury no.1 was more fatal than injury no.4). He also deposed that “pksV ua0 1 Hkh ejus ds ckn dh laHko ugh gSA ” (injury no.1 is also not possible after death). From this statement of P.W.16-Dr. R.R. Acharya, it transpires that injury no.1 i.e. “incised wound 12.0 cm x 4.0 cm x bone-deep on the face from (L) ear to lower jaw. Maxillary bones (L) mandible bone of (L) skull cut.” is more fatal than injury no.4 i.e. firearm wound and further injury no.1 is also not possible after death meaning thereby it was caused before death. (46) It is pertinent to mention that both P.W.1-Upendra Singh and P.W.2-Lallu had deposed before the trial Court that appellants Babu Lal Pasi and Ringu Pasi had fired upon Ram Balak and Shiv Balak with Kattas (pistol), due to which, they died on the spot. Except the allegation of firing with Kattas upon the deceased, both the eye-witnesses had not stated other mode of assault upon the deceased persons. That being the position, as to how the injury no.1 i.e. incised wound, on the dead body of the deceased Ram Balak came, has not been explained by the prosecution by giving any evidence in this regard. Furthermore, the prosecution has also not explained how one multiple incised wound came on the body of the deceased Sheo Balak and two other incised wound in addition to incised wound (injury no.1) came on the body of the deceased Ram Balak. In these backgrounds, it appears that both eye-witnesses i.e. P.W.1- Upendra Singh and P.W.2-Lallu were not seen the incident. (47) It is also relevant to add that both P.W.1 and P.W.2 have made depositions to the effect that prior enmity existed between the members of the P.W.1 and P.W.2 one side and the members of the accused/appellants on the other side. P.W.1, in his cross- examination, has deposed that in the year 1973, Chandrika (since deceased) had lodged a case under Section 307 I.P.C. against his father and uncle. He further deposed that in the murder of Chandrika, his uncle Ram Balak, another uncle Ram Narayan, witness Dinesh Chandra (injured herein) and Harishchandra (who was sitting along with the deceased Ram Balak and Shiv Balak at the time of the incident in a window seat of three seater seat of the bus) were accused. P.W.2, in his cross-examination, has stated that he had enmity with Ramroop, Ram Swaroop, Ganga Sewak and Ramchandra (acquitted accused) and he had a criminal case against them and the second case are going on. He further stated that the second case, which was filed, is a cross case under Sections 323 and 325 I.P.C.. He stated that along with him 12 peoples were accused and from the side of Ram Roop etc., 16 peoples were accused. In the cross case, bail was granted to them. P.W.2 has further stated that at the time of the incident, the said cross criminal case under Sections 323, 325 I.P.C. was going on. He further stated that jkeLo:i ls 1977 essa >xMk gqvk Fkk mlds ckn jke:i cxSjg ls >xMk gqvkA ge yksxks dk >xMk jkeLo:i vkfn ls 1977 ls 'kq: gqvk gSA dzkl dsl dh isf’k;ks ij jkeLo:i oxSjg vkrs gS rFkk ge lc yksx Hkh vkrs gSaA P.W.2 has further deposed in cross- examination that in his cross case, accused Ramchandra, Smt. Batasa and his father Palangi are also the accused. He also stated that he knew the father of appellant Ringu, namely, Baijnath. According to the appellants, in the cross-case, Baijnath, who is the father of appellant Ringu, was the surety of Palangi. Thus, it appears that there was long enmity between the parties, hence involving the accused/appellants falsely in a criminal case such as the instant case by P.W.1 and P.W.2 cannot be ruled out. (48) Learned Additional Government Advocate strenuously urged that the circumstance that the FIR of the incident was lodged promptly i.e. about 1 hour 50 minutes of the incident taking place and in the same, the act of causing injuries to the deceased with a fire arms has been attributed to the appellants speaks volumes in favour about the participation of the appellants in the murder of the deceased. We have reflected over the said submission of learned AGA. On the first blush, it was certainly very attractive. However, on a deeper scrutiny, we realised that all that glitters is not gold. It is well-settled that the FIR can only be used to contradict or corroborate the maker and is not substantive evidence. The substantive evidence are the statements of the witnesses in Court. The substantive evidence in the instant case was in the form of the evidence of the three eye witnesses viz. Upendra Singh P.W. 1, Lallu P.W. 2 and Krishna Mohan P.W.6 and that we have rejected for the reasons stated by us above. Hence this submission of learned AGA fails. (49) As it is manifest, neither the informant Gaya Prasad nor injured Dinesh Shukla and Devideen nor driver and conductor of the bus has been examined by the prosecution. Submission of appellants is that they are natural witnesses and no explanation has been given for their non- examination and hence, adverse inference against the prosecution deserves to be drawn. (50) In the case of Surinder Kumar v. State of Haryana : (2011) 10 SCC 173, the Apex Court has held that though in a different context, that a failure on the part of the prosecution in non- examining the two children, aged about six and four years, respectively, when both of them were present at the site of the crime, amounted to failure on the part of the prosecution. (51) In State of H.P. v. Gian Chand : (2001) 6 SCC 71, the Apex Court, while dealing with non-examination of material witnesses has expressed that:- "14 ... Non-examination of a material witness is not a mathematical formula for discarding the weight of the testimony available on record, howsoever natural, trustworthy and convincing it may be. The charge of court leveled against the prosecution should be examined in the background of the facts evidence adduced and available on record. If the Court finds the evidence adduced worthy of being relied on then the testimony has to be accepted and acted on though examined. However, if the available evidence suffers from some infirmity or cannot be (52) In Takhaji Hiraji v. Thakore Kubersing Chamansing and others : (2001) 6 SCC 145, the Apex Court has held that it is true that if a material witness, who would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. In such a case the court ought to scrutinise the worth of the evidence adduced. The Court should pose the question whether in the facts and circumstances of the case, it was necessary to examine such other witness. If so, whether such witness was available to be examined and yet was being withheld from the court. If the answer is positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable, the Court can safely act upon it, uninfluenced by the factum of non-examination of other witnesses. (53) In Dahari v. State of U.P. : (2012) 10 SCC 256 while discussing the non-examination of a material witness, the Apex Court expressed the view that when he was not the only competent witness who would have been fully capable of explaining the factual situation correctly. The prosecution case stood fully corroborated by the medical evidence and the testimony of other reliable witnesses, no adverse inference could be drawn against the prosecution. (54) From the aforesaid authorities, it is quite vivid that non- examination of material witnesses would not always create a dent in the prosecution's case. However, as has been held in the case of State of H.P. v. Gian Chand (supra), the charge of withholding a material witness from the Court levelled against the prosecution should be examined in the background of facts and circumstances of each case to find out whether the witnesses were available for being examined in the Court and were yet withheld by the prosecution. That apart, the Court has first to assess the trustworthiness of the evidence adduced and available on record. If the court finds the evidence adduced worthy of being relied on then the testimony has to be accepted and acted on. There may be other witnesses available who could also have been examined but were not examined. Another aspect which is required to be seen whether such witness or witnesses are the only competent witnesses who could have been fully capable of explaining correctly the factual situation. (55) In the instant case, we have already noticed that informant-Gaya Prasad, who was sitting along with P.W.1 in the bus; Harishchandra, who was sitting along with the deceased in the window seat of three seater seat of the bus; injured Dinesh Chandra Shukla and Devideen; and conduct and driver of the bus, were the eye-witness. They are the most natural and competent witnesses. They really could have thrown immense light on the factual score, but for the reasons best known to the prosecution, they have not been examined. It is also not the case of the prosecution that they had not been cited as their evidence would have been duplication or repetition of evidence or there was an apprehension that they would have not supported the case of the prosecution. In the absence of any explanation whatsoever, we are of the considered opinion that it has affected the case of the prosecution. (56) P.W.1-Upendra Singh, in his cross-examination, had stated that on account of extra old age and loss of vision, informant-Gaya Prasad was not produced before the trial Court. This explanation seems to be true. However, as stated hereinabove, there were other material eye-witnesses i.e. Harishchandra, injured Dinesh Chandra Shukla and Devi Deen, and conducter and driver of the bus still, no exaplantion has been produced by the prosecution for their non-examination in the trial Court. Therefore, we are of the considered view that the conviction recorded by the trial Court on the testimony of P.W.1 and P.W.2 without any corroboration is unsustainable. (57) At this juncture, we feel distressed by the thought that the triple murderer is going unpunished but we cannot and should not be swayed by our emotions. What we have to see is whether the prosecution has led cogent, truthful and credible evidence to establish the guilt of the appellants beyond reasonable doubt. Such evidence in our judgement is wanting in the instant case. It might be that the prosecution case may be true. But before a conviction can be recorded/sustained a Court has to be satisfied that the prosecution case must be true. Emphasising this, the Apex Court in the case of Sarwan Singh v. State of Punjab : 1957 AIR 637, in paragraph 11 observed thus :- It may be as Mr. Gopal Singh strenuously urged before us that there is an element of truth in the prosecution story against both the appellants Mr. Gopal Singh contended that, considered as a whole the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence." (58) In the instant case, the distance between 'may be true' and 'must be true' has not been covered by the prosecution by adducing legal, reliable and unimpeachable evidence. (59) Pursuant to the above discussion, we are squarely satisfied that the instant is a fit case in which the appellant no.2-Ringu Pasi deserves the benefit of doubt. We propose giving him the benefit of that doubt. (60) In the result, the instant criminal appeal is allowed. The judgment and order dated 17.07.1982 passed in Sessions Trial No. 210 of 1981 so far as it relates to the appellant no.2-Ringu Pasi is hereby set aside. The appellant no.2-Ringu Pasi is acquitted from the charges levelled against him. He is in jail. He shall be set at liberty forthwith if no longer required in any other criminal case. (61) Appellant no.2-Ringu Pasi is directed to file personal bond and two sureties each in the like amount to the satisfaction of the Court concerned in compliance with Section 437-A of the Code of Criminal Procedure, 1973. (62) Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance.
The High Court in Allahabad, which held its hearing in Lucknow, has overturned a murder conviction after 40 years. It canceled the decision made by a lower court (the Sessions Court) and ordered prison officials to release the man immediately. Ringu Pasi had filed a criminal appeal in 1982. He was found guilty by a judge in Unnao of murder and of dishonestly taking someone else's property. Two judges, Justice Ramesh Sinha and Justice Vivek Varma, finally made a decision on his appeal on February 22, 2022. The judges believed that the lawyers trying the case (the prosecution) did not provide strong, honest, and believable evidence. This evidence was needed to prove that the accused people were guilty without any real question. The court said that the prosecution's evidence only suggested the accused "might be true." It didn't prove that it "must be true." The court felt strongly that Ringu Pasi, one of the accused, should be given the benefit of the doubt because the evidence was not strong enough. In the original trial, 11 people were accused. The Sessions Court found 9 of them not guilty. It found the two men who appealed (Babu Pasi and Ringu Pasi) guilty of the crimes already mentioned. While the appeal was still waiting to be decided, Babu Pasi passed away in 2015. Because of this, the court only made a decision about Ringu Pasi's case. Ringu Pasi's lawyer argued several points. First, the police report (FIR) against the accused was very long and seemed to have been written after a lot of discussion and planning. The lawyer also said that the prosecution's failure to question an important witness was a serious problem for their case. Finally, the lawyer argued that because there was existing bad blood between the victim and the accused's family, it was possible the accused were wrongly blamed. On the other hand, the State's lawyer defended the lower court's decision. They claimed that the police report was filed quickly, so it was unlikely that the accusations were false. The State's lawyer also said that the trial court had correctly looked at and valued the evidence from eyewitnesses, along with other visible and written proof. Findings The High Court did not accept the evidence from the three eyewitnesses presented by the prosecution. The court said that their statements were not trustworthy. The court also pointed out that these same witnesses had accused 9 other people in the case. However, the trial court had found all 9 of those people not guilty of any charges. The High Court added that the State of Uttar Pradesh had not tried to challenge the decision to free these nine people. The court also observed that there seemed to be a long-running disagreement between the people involved. Because of this, the possibility of falsely accusing the appealing defendants in a criminal case, like this one, could not be ignored. The High Court also agreed with the lawyers for Ringu Pasi that two key witnesses were not questioned. The court stated that these witnesses were the most obvious and capable people to testify. They could have greatly helped explain the facts. However, for reasons the prosecution knew, they were not called to speak. The prosecution also didn't say that these witnesses weren't called because their evidence would be the same as others, or because they feared the witnesses wouldn't support their case. Since no reason was given, the court believed this hurt the prosecution's case. The judges referred to an earlier decision by the Supreme Court from 1957. In that case, the Supreme Court had said that even if there seems to be some truth in what the prosecution says, there's a big difference between something that "might be true" and something that "must be true." This difference, the Supreme Court ruled, must be filled with strong, trustworthy, and undeniable evidence. Using this legal rule for the current case, the High Court was convinced that the accused should be given the benefit of the doubt. Therefore, Ringu Pasi's appeal was granted. The decision made by the lower court was canceled, and Ringu Pasi was found not guilty of the crimes he was accused of.
Appellant :- Babu Pasi alias Babu Lal Pasi and another Respondent :- State of U.P. Counsel for Appellant :- J.N.Chaudhary, H B Singh, Harendra (The judgment is pronounced in terms of Chapter VII Sub-rule (2) of Rule (1) of the Allahabad High Court Rules, 1952 by (1) Eleven accused persons, namely, Babu Pasi alias Babu Lal Sewak, Neta alias Kunni, Chandra Kishore, Lalaunoo, Ram Rup, Ram Chandra, were tried by the VI Additional Sessions Judge, Unnao in Sessions Trial No. 210 of 1981 : State Vs. Babu Lal and others. (2) It is pertinent to mention here that during the trial, accused Babu Lal Master died, whereas accused Vinod Kumar and Babu Lal Dom were absconding, hence their trial was separated from aforesaid eleven accused persons and the trial Court had charged accused Ringu Pasi and Babu Lal Pasi under Sections 302 read with Section 34 I.P.C. for committing murder of Shiv Balak and Ram Balak and under Section 404 I.P.C. for having taken arms from the deceased persons; and accused Ramesh, Madan Lal, Ram Swaroop, Ganga Sewak, Neta alias Kunni, Chandra Kishore, Lalaunoo, Ram Roop and Ram Chandra were charged under Sections 201, 148, 302 read with Section 34 I.P.C. and Section 302 I.P.C. read with Section 114 I.P.C. (3) Vide judgment and order dated 17.07.1982, the VI Additional Sessions Judge, Unnao, acquitted nine accused persons, namely, Ramesh, Madan Lal, Ram Swaroop, Ganga Sewak, Neta alias Kunni, Chandra Kishor, Lalaunoo, Ram Roop, Ram Chandra and convicted two accused persons, namely, Babu Pasi alias Babu Lal Pasi (appellant no.1 herein), Ringu Pasi (appellant no.2 herein) under Section 302 read with Section 34 I.P.C. and Section 404 I.P.C. and sentenced them in the manner as stated “(i) Under section 302 read with Section 34 (ii) Under Section 404 I.P.C. to undergo one year’s R.I.” Both the sentences were directed to run concurrently. (4) Feeling aggrieved by their conviction and sentence above vide judgment and order dated 17.07.1982, Babu Pasi alias Babu Lal Pasi (appellant no.1 herein ) and Ringu Pasi (appellant no.2 herein) have preferred the instant criminal appeal under Section 374 (2) of the Code of Criminal Procedure. (5) It is pertinent to mention here that no appeal against the acquittal of nine accused persons, namely, Ramesh, Madan Lal, Ram Swaroop, Ganga Sewak, Neta alias Kunni, Chandra Kishor, Lalaunoo, Ram Roop, Ram Chandra, has been filed either by the State or by the complainant’s side. (6) It transpires from the record that during pendency of the instant appeal, appellant no.1-Babu Pasi alias Babu Lal Pasi died on 12.07.2015, hence the instant criminal appeal filed on his behalf stands abated vide order dated 07.02.2019. Now the instant criminal appeal survives only in respect of appellant no.2-Ringu (7) Shorn off unnecessary details, the case of the prosecution is as Gaya Prasad Singh (informant), son of Sheo Darshan Singh Kachi, who is the resident of village Hamirpur, Police Station Bihar, District Unnao, has lodged an F.I.R., alleging therein that in the year 1979, Chandrika Pasi of his village was murdered, in which his son Ram Balak (deceased), his nephew Raj Narayan son of Suryawali Kachi, Dinesh Chandra (injured) and Harish Chandra alias Kunne, sons of Udai Shanker Shukla, resident of village Bhagwant Nagar, Police Station Bihar, were challaned and in this case, on 30.09.1980, they were required to be present in Court. On that date i.e. on 30.09.1980, his another civil case was listed in Civil Court. On 30.09.1980, his son Ram Balak (deceased), Shiv Balak (deceased) and his brother Vishnu Dutt came to kachahari (Court) for doing pairvi in both the cases. On the said date, the relatives of Chandrika Pasi and his companions, namely, Babu Lal Pasi Master, Ringu Pasi, Babu Pasi (accused), residents of Village Osiya, Police Station Bighapur, were also gone along with other 2-3 friends to kachahari (court) for doing pairvi of the case of In the Court, some hot talk took place between his sons and Babu Lal Master etc. Thereafter, Babu Lal said that “[kqu dk cnyk [kqu ls pqdk;k tk;sxk” (blood would be avenged for blood), which was also heard by Ram Narayan Kadi, who had gone there for pairvi of his brother Raj Narayan. On the said date, the case was posted for On 06.10.1980, he (informant Gaya Prasad Singh), his sons Ram Balak (deceased), Shiv Balak (deceased), his nephew Raj Narayan and Shivdhar Singh sons of Ganga Singh, resident of village Bhunau Kheda, Ram Balak Yadav son of Kali Prasad resident of village Pitua Kheda, Ramdas Lohar son of Bhalu, Ram Balak son of Satya Narayan Pasi resident of Village Hamirpur, Police Station Bihar, District Unnao, were gone to kachahari (Court) but the case was posted for 07.10.1980, then, they were coming from Kanpur to Buxer through a bus, bearing registration No. U.T.T. 7367, upon which his grand-child Upendra Singh (P.W.1) son of Shiv Balak (deceased) was also returning from Kanpur. Babu Pasi, Ringu Pasi (appellants) of Usiya also boarded on the said bus from Unnao. When the bus was started to go from Bighapur to Buxer, then, 3-4 men from Bighapur also boarded the said bus and when the bus moved ahead from frjkgk (a place where three road met with each other) of Usiya village at around 05:30 p.m., loud sound jksdks jksdks (stop stop) came inside the bus from its behind and 3-4 fire also happened in the bus. Thereafter, the bus, after running about 150 yard, stopped and then, they saw that Ram Balak (deceased) and Shiv Balak (deceased) got shot and fell on their seats and near to them, Babu Pasi, Ringu (appellants) and 24 year old wheatish colour boy wearing a red bushirt were holding a katta (pistol) in their hands and while abusing the passengers, asked them that bastard get out from the bus and ran away and if someone spoke, he too would be shot. Thereafter, while snatching the rifle of his son Ram Balak (deceased) and a single bore gun of Shiv Balak (deceased) by Babu Pasi and Ringu Pasi (appellants), respectively, they took it in their hands. Thereafter, Dinesh Chandra Shukla (injured), who was sitting in front of the seat of the next gate with his rifle facing his face towards back, was caught holding his rifle by a wheatish man wearing Khakhi paint and bushirt and appeared to be a young age. Thereafter, Dinesh tried to escape from the grip of a wheatish man but he was jerked by him and then, while pulling over from bus with rifle, the said wheatish man snatched his rifle. Thereafter, all the passengers got out of the bus and hid under the trees here and there. They (informant Gaya Prasad Singh and Upendra Singh (P.W.1) also ran away and hid here and there under the cover. As soon as the bus stopped the side of the road, Babu Lal Pasi Master (accused), who was armed with one bore gun and along with him 10-12 persons, who armed with Katta (pistol) and shotguns (vn~/kh canwds), started firing. When the passengers got down, Babu Lal Master (accused) had said that dead body of the bastard be taken out from the bus, thereupon 3-4 persons entered into the bus and took out the dead body of his two sons, who died on account of shot inside the bus and thereafter, took away the dead bodies of his two sons to the south of the road towards the field. Thereafter, on saying of Babu Lal Master (accused), one of his companion, after soaking his angaucha (towel) in water, entered into the bus and cleaned the blood that had fallen in it. A passenger, who was running towards the east and fell into the water about seven yards east of the road, was too shot by the miscreants. Two miscreants picked up his body and took him towards south of the road towards agriculture. The miscreants fired 15-16 shots and all the miscreants went south through the Hearing the fire sound, the men working in the nearby fields came on the road and saw the incident and recognized the miscreants. After the miscreants ran away, the said people came near the bus. The passenger, who had boarded the bus from Bighapur, told his name as Lallu Yadav of Mardan Khera, Kishan Mohan of Usiya, Jagmohan Singh of Akwabad, Police Station Bighapur. The men, who had gathered on the spot and who had seen and recognized the miscreants, told that the red bushirt miscreant was Vinod Kumar Chamar; the name of the person wearing Khakhi paint and bushirt was Babal Lal Dom of village Usiya and the name of the other miscreants was Kunni alias Neta, Ram Chandra Ahir, Ahir of Usiya, Lalaunu Pasi of village Bhagrar, Chandra Kishore Lohar of village Aram police station Bighapur Unnao. The name of 3-4 miscreants could not tell by them but they said they would recognize by seeing them. It has further been stated by the informant Gaya Prasad Singh that his son Shiv Balak was wearing half black tericoat bushirt, in which big white check was made, one rainy shoe, one rose colour aunguacha having its corner green, H.M.T. Automatic white dial white Kesh and a watch connected with chain amounting to Rs.400/-; and Ram Balak was wearing tericot bellbottom and tericot bushirt, rainy shoe, Omax automatic of catechu color and a watch connected with chain amounting to Rs. 400/-. They were also having license of rifle and gun and cartridge. The window of the bus where his sons were sitting got broken on the shot of miscreants and the seat where his sons were sitting in the bus, were having entry of gun shot and blood stained. On account of the shot of the miscreants, Dinesh Shukla and 2-3 persons were also sustained injuries. The name of the miscreants told by the persons came there after the incident, has not been known by him prior to the incident. He, Upendra Singh, Shivdhar Singh, Ram Balak Yadav, Ram Balak Pasi, Ram Das Lohar had seen the miscreants and recognized them and when they came in front of them, he can recognized them. He and his family members can identify the belongings of his sons when they come in front of them. (8) Thereafter, informant Gaya Prasad Singh Kachi got the FIR scribed at Bighapur Bus Station through Upendra Singh (P.W.1), who after scribing it read it over to him and thereafter got his signature on it and subsequently handed it over to informant Gaya Prasad, who, then, proceeded to Police Station Bighapur and lodged it. (9) The evidence of Syed Ibtida Husain Rizvi (P.W. 8) shows that on 06.10.1980, he was posted as Constable Clerk at Police Station Bighapur and on the said date, at 07:15 p.m., informant Gaya Prasad came and filed his written FIR (Ext. Ka.1), on the basis of which he prepared the chik FIR (Ext. Ka.33). (10) A perusal of the chik FIR shows that the distance between the place of incident and Police Station Bighapur was 3 miles. It is significant to mention that a perusal of the chik FIR also shows that on its basis, Case Crime No. 144 of 1980, under Sections 396, 201 I.P.C. was registered against appellants and 3-4 unknown persons. (11) The evidence of SI Hari Shanker Singh (P.W. 7), in short, shows In October, 1980, he was posted as Station Officer at police station Bighapur. On 06.10.1980, this case was registered in his presence at the police station. He commenced the investigation and proceeded to the place of incident along with the informant (Gaya Prasad Singh) and other witnesses from police station, where Station Officer of police station Bihar and S.I. R.P. Shukla along with Constables were met at the place of the occurrence. He, thereafter, instructed them to search the dead bodies of the deceased and also to search the accused persons. Thereafter, he recorded the statements of Krishna Mohan and Lalloo etc. On 07.10.1980, at 02:00 a.m., he again commenced the investigation and at the place of occurrence, he recorded the statement of witness Upendra Singh (P.W.1) etc. Subsequently, he inspected the place of occurrence and on the pointing out of the informant and other witnesses, he prepared the site plan (Ext. Ka.5). From the place of incident, he seized two empty catridges, blood stained earth lying on the road on the side of the bus and plain earth near it in two containers under a recovery memo. He also seized four pellets, fVdyh dkjrwl, and a ticket of roadways bus in two containers under a recovery memo. He also seized the blood stained earth and plain earth from the places ‘N’ and ‘Q’ shown in the site map in two separate containers under a recovery memo. He also seized blood stained <Sapk, plain branch of <Sapk, blood stained earth and plain earth from the place shown as ‘>’ in the site plan in two separate containers under the recovery memo. Their recovery memo is Ext. Ka. 6 to Ext. Ka. 9. On the date itself, the dead body of the deceased Shiv Balak was recovered on excavating the field of Devideen and he then prepared a recovery memo (Ext. Ka. 10). Thereafter, the dead body of another person was recovered from that field on excavating it but due to darkness, the Panchayatnama of any corpse could not be done. The dead body of Shiv Balak was identified by Upendra Singh (P.W.1). The accused persons were searched but they were not found at their home. He and other people remained on the spot for the supervision of the dead On 08.10.1980, at about 07:00 a.m., he prepared panchayatnama of the dead body of the deceased Shiv Balak (Ext. Ka. 12), photo lash (Ext. Ka. 13), challan lash (Ext. Ka. 14) and a letter to C.M.O. (Ext. Ka. 15) and handed over the dead body of the deceased Shiv Balak in a sealed condition for post-mortem to Constable Ram Vilash etc. To identify the dead body of the unknown person, it was brought from the field of Devideen to Urmiya Tiraha and got identified from the people who were coming and going there. But after not being identified, Ramdas Photographer was called from Janta Studio Bighapur and photo of the dead body of the unknown person was taken in his presence. Thereafter, photographer had handed over the positive photograph of the unknown person to him (Ext. Ka. 14 and Ext. Ka. 15). Thereafter, he prepared the panchayatnama of the dead body of the unknown person (Ext. Ka. 16), photo lash (Ext. Ka. 17), challan lash (Ext. Ka. 18) and a letter to C.M.O. (Ext. Ka. 19) and handed it over to aforesaid Constable Ram Bilas etc. in a sealed Thereafter, he came at Bighapur Bus Stand, where the bus was standing. From inside the bus, he seized one briefcase (Ext. Ka.16) and articles found inside of it under recovery momo (Ext. Ka. 20). The address was known from the letter found in the briefcase. He also recovered six pellets and 2 vnn fVdyh from inside the bus, which was taken in possession and prepared its recovery memo. He seized the pieces of mirror of broken window inside the bus in a container under recovery memo (Ext. Ka. 23). He found blood on the rexine on the seat of the bus and therefore he cut the blood stained rexine and seized it under recovery memo (Ext. Ka. 24). He also prepared the site plan of the bus (Ext. Ka. 22). The injury report of Dinesh Chandra was received at the police station, which was copied and after that he came at police On 09.10.1980, he went to the house of Shiv Kumar Trivedi of village Babu Kheda along with recovered items Ext. Ka. 16 wherein his son Rama Shanker met and he identified the briefcase and clothes inside it and said it was his brother-in-law. Smt. Shail Kumari has said that the briefcase and its article were of his On 11.10.1980, he handed over the custody of the bus to Sri R.P.Singh, Station Officer, Unnao and got receipt thereof (Ext. Ka. 24). On the date itself, another dead body was found in the field of aforesaid Devideen on excavating (Ext. Ka. 26) but it could not be identified at that time, therefore, informant Gaya Prasad was called. He prepared the site map of that place (Ext. Ka.25). He, thereafter, left the unknown dead body under the supervision of S.I. R. P. Shukla and came to Unnao and informed On 12.10.1980, informant Gaya Prasad came there, identified the dead body and told that it was his son Ram Balak. He, thereafter, prepared panchayatnama of the dead body of Ram Balak (Ext. Ka. 27), photo lash (Ext. Ka. 28), challan lash (Ext. Ka 29) and a letter to C.M.O. (Ext. Ka. 30). He thereafter sealed the dead body of Ram Balak and handed it over to Constable Ram Pal etc. for On 14.10.1980, he recorded the statements of Head Moharrir Ram Asre Tiwari, Constable Ram Bilas Yadav and Ram Pal. On 15.10.1980, he came to Unnao and under the order of the Court, Kunni alias Neta was taken in police custody for 48 hours and brought him to police, where he recorded his statement. On 20.10.1980, at about 03:30 a.m., he arrested Madan Pal Cheddi from the Tiraha of Unnao-Raibareli road and Maiku Teli road at the east of village Sikandarpur. On the search of accused Chhedi, he recovered a country-made pistol, four live cartridges and a wrist watch and prepared two separate recovery memo. On the pointing out of accused Madan and Cheddi, he recovered a bag (Ext. Ka. 26), which was buried in the ground under the water in the field of Ludhai Pasi, in which one angaucha (towel) was On 23.10.1980, he went to Kanpur and searched other accused persons but he could not find them. On 24.10.1980, photographer Ram Baran had given him five photograph. On 24.10.1980, he came to know that accused Babu Lal Master, Babu Lal, Ringu, Ramesh, Vinod Kumar and Chandra Kishore (accused) were surrendered themselves in the Court of Chief Judicial Magistrate, Lucknow. On 28.10.1980, he received information from the Court of J.M.-8, Unnao that aforesaid accused persons came to Unnao Jail from the Lucknow Jail on 26.10.1980. On 31.10.1980, he learnt that accused Ramroop, Ram Swaroop and Gram Sewak surrendered themselves in the Court of Unnao on 28.10.1980 and accused Babu Lal Dom surrendered himself in Court on 29.10.1980. On 02.11.1980, the property of the accused Lalaunoo and Chandra Kumar was attached and handed it over to Munni Lal. On 06.11.1980, he came to know that accused Ram Chandra surrendered himself on 03.11.1980. On 10.11.1980, he conducted the proceedings for reporting the identification of aungaucha and watch and on 12.11.1980, he conducted the proceedings for reporting the identification of accused persons. Thereafter, he was transferred to Kotwali and further investigation was done by Jora Singh (12) The evidence of H.C. Ram Asre (P.W.9) shows that in the month of October, 1980, he was posted as Head Moharrir at Police Station Bighapur. On 09.10.1980, Devideen, son of Lalloo, resident of Ibrahimpur, P.S. Saraini, District Raibareli, came at the police station. He stated that Devideen was sent for medical examination along with Constable Sriram with chithi majroobi (letter for medical examination) at Primary Health Centre, Bighapur. On 20.10.1980, he took accused Madan Lal and Chhedi Lal from police station Bighapur at 11:10 a.m. and detained them at District Jail, Unnao. In cross-examination, P.W.9 H.C. Ram Asrey had deposed before the trial Court that accused Madan and Cheddi were arrested on 20.10.1980 and at 10:15 a.m., they were brought at police station. The injuries of Devideen, which he had seen, were mentioned in the G.D. (13) The evidence of Sri Janardan Singh (P.W.10) shows that on 29.12.1980 and also on 03.01.1980, he was posted as Executive Magistrate at District Unnao. On 03.01.1981, he conducted the identification parade of accused Vinod Kumar, Babulal son of Dhannu Dom and Ramesh and Ram Chandra, Ram Swaroop, Ramroop, Ganga Sewak, Madan Lal, Lalaunu alias Chandra Kumar and Chandra Kishore at District Jail, Unnao. A separate parade consisting of 10-10 undertrial prisoners with each accused was prepared and the witnesses were called one by one. During identification, they were made to sit in such a place where they would not have a conversation with the coming witnesses nor made any indication. The result of the identification parade was that the accused Babu Lal was correctly recognized by the witness Gaya Prasad Singh; accused Chandra Kishore was correctly recognized by the witness Upendra Singh; accused Vinod Kumar and Madan Lal were corrected recognized by the witness Ramdas. He prepared the proceedings of identification directly, which is in his handwriting and signed (Ext. Ka.38) Similarly, on 29.12.1980, he conducted the identification parade of blood stained aungaucha (Ext.1) at his office. The result of such identification was that witnesses Gaya Prasad Singh, Upendra Singh, Gajendra Singh and Devendra Singh had correctly identified the said aungaucha. He had prepared the proceedings in respect of the identification, which is in his handwritten and signature (Ext. 39) In cross-examination, P.W.10 has stated that at the time of identification of goods, they did not get information who is the accused in this case and who is his lawyer, hence the accused was not informed about the identification proceedings. Witness Gaya Prasad had made one mistake in identifying the other accused; witness Upendra Singh also made nine mistakes in identifying other accused; witness Dinesh Chandra made ten mistakes in identifying ten accused. The statements given by the witness to him were “MdSrh o dRy djrs oDr ekSds ij ns[kk Fkk”. Witness Upendra was also given the same statement to him. (14) The evidence of Constable Shiv Charan Mishra (P.W.11) shows that on 29.12.1980, he was posted as Court Moharrir in the Court of Special Executive Magistrate. On that date, he brought out a sealed bundle good from Sadar Malkhana, Unnao to the Court and after completion of identification proceedings, he brought the sealed bundle good from the Court and lodged it to Sadar Malkhana. The goods belonged to this case. (15) The evidence of Head Constable Annirudh Prasad (P.W.13) shows that on 21.10.1980, he was posted as Moharrir at Sadar Malkhana. On the said date, two sealed bundle of this case was deposited by Constable CP 31 Jagdish Prasad in Sadar Malkhana. He also stated that on 29.12.1980, one sealed and stamped bundle, in which bag and angaucha were there, was brought by Constable Shiv Charan Mishra (P.W.11) to the Court for identification and after identification of the aforesaid goods, Constable Shiv Charan Mishra (P.W.11) deposited it in a sealed condition in Sadar Malkhana. (16) The evidence of Ram Baran Verma (P.W.14) shows that in the year 1977, he was doing the work of photography at Bighapur, where he has a studio. On 08.10.1980, he took the negative of Ext. 14, 15. 17, 18 and 19 and he also brought it. He further stated that the same has been filed by him in the Court, in which Ext. 27, 28, 29, 30 and 31 were mentioned. He further stated that for this negative, he prepared the positive photograph print (Ext. 14, 15, 17, 18 and 19) and gave it to the Inspector. In cross-examination, P.W.14 has stated that the bazar (market) of Bighapur is closing once in a week i.e. on Monday. On that day when he prepared the photo, bazar (market) was also closing on Monday. He clicked the photo of the dead body at the tiraha of Usiya and also clicked the photo of the bus at Bus Stand (17) The evidence of P.W.15 Jora Singh shows that on 29.11.1980, he was posted as Station Officer at Police Station Bighapur. He took the investigation of the case himself after transfer of the Investigating Officer Sri Hari Shanker (P.W.7. After completion of the investigation, the appellants and the acquitted accused were charge-sheeted vide charge-sheet dated 11.01.1981 (Ext. In cross-examination, P.W.15 has stated before the trial Court that he did not send the blood stained items to Chemical Examiner for examination. On asking the reasons thereof, he stated that he was not paying attention. (18) Going backward, the injuries of Dinesh Chandra Shukla and Devi Deen were examined on 07.10.1980 and 09.10.1980, at 1:30 p.m. and 03:30 p.m. at District Hospital, Unnao and Primary Health Centre, Bighapur by Dr. Vrij Narayan Saxena (P.W.3) and Dr. Keshav Gupta (P.W.12), respectively, who found injuries on their person as enumerated hereinafter :- 1. Incised wound 2 cm x 0.25 cm x .15 cm on the 1st past aspect of left forearm 5 cm above the medial epicondyle tailing present on the above side, margins clear cut. 2. Abrasion 2 cm x 2 cm on the lateral aspect of Rt. knee joint. (probed). Feeling of Hard Mass like a pallet 3 cm medial to wound area all around the and out from Lt. tibial tubercli measuring 1 cm in diameter. Muscle deep (probed). (19) It is significant to mention here that Dr. Vrij Narayan Saxena (P.W.3), who examined the injured Dinesh Chandra Shukla, has deposed before the trial Court that on 07.10.1980, he was posted as Emergency Medical Officer, District Hospital, Unnao and on the said date, he conducted the medical examination of injured Dinesh Chandra Shukla. On examination of injured Dinesh Chandra Shukla, he found two injuries on his person. As per his opinion, injuries were one day old; injury no.1 could be attributable by sharp edged weapon and injury no.2 by scrubbing; these injuries could be attributable on 06.10.1980 at 05:30 p.m.; and the injury of knee could be caused by falling rough paved road. In cross-examination, P.W.3- Dr. Vrij Narayan Saxena has deposed that none of the these two injuries could be caused by fire arm; and both the injuries are superficial and could be self- inflicted. (20) As stated hereinabove, the injuries of Devi Deen was examined by Dr. Keshav Gupta (P.W.12), who deposed before the trial Court that on 09.10.1980, he was posted as Medical Officer in Primary Health Centre, Bighapur. On the said date, at 03:30 p.m., he examined the injured Devideen, who was brought by Constable Sri Ram of Bighapur Police Station. On the examination of injured Devi Deen, he found two injuries on his person. As per his opinion, injuries could be attributable by any fire arm weapon; duration of the injuries at the time of examination was about three days old; he advised x-ray for both the injuries; he prepared the injury report (Ext. Ka. 42); and all the injuries on his person could be attributable on 06.10.1980 at 05:30 p.m. In cross-examination, he had deposed before the trial Court that on 06.10.1980, he went to Bighapur. The hospital of Bighapur is at a distance of 2 kms from the police station. (21) The autopsies on the dead bodies of deceased persons, namely, (1) unknown person, (2) Shiv Balak and (3) Ram Balak, were conducted on 09.10.1980, 08.10.1980 and 13.10.1980 at 01:30 p.m., 04.00 p.m. and 1:30 p.m., by Dr. Adarsh Sanghi (P.W. 4), Dr. J.N. Bajpai (P.W.5) and Dr. R.R. Aacharya (P.W.16), who found on their person ante-mortem injuries, enumerated “Ante-mortem injuries of unknown person 1. Gun shot wound of entry circular in shape 1 1/2” x 11/2” x chest cavity deep. On the upper part of the chest 11/2” below left sterno clavicular joint margins inverted and contused. right cheek, 1/2” away from right alae of nose. The under lying maxillary bone is cut. 3. Incised wound 3” x 1/2” x bone deep over right cheek 1/2” interior to injury no.2. 4. Circular lacerated wound 1/2” x 1/3” x muscle deep just above right elbow joint. 5. Lacerated wound 1/2” x 1/3” x muscle deep on right fore-arm back 2” below elbow joint. 6. Gun shot wound of entry 11/2” x 11/4” x muscle deep on the anterior part of left buttock 3” is below iliac crest. Margins inverted and muscle deep on the anterior part of the right buttock in an area of 3 1/2“ x 2”. Margins “Ante-mortem injuries of Shiv Balak, son of 1. Multiple incised wounds in an area of 6” x 6” x bone deep carsury lev on left side of face, left side of nose, left side of cheek and left side of chin. Margins (illigble) clear cut. injury no.2 and 11/2” from the right nipple. 4. Gun shot wounds of entry 1” x 1” into abdomen upper part. 9th below left arm pit 7th outer to unsclicus.” “Ante-mortem injuries of Ram Balak, son of Gaya on (L) face from (L) ear to lower jaw. Maxillary bones (L) mandible bone of (L) skull cut. 2. Incised wound on (L) neck 3.0 x 1.0 cm x bone deep middle. 3. Incised injury 8.0 x 0.5 cm x muscle deep on mid, upper abdomen. region scapular region, oblique 2.0 x 1.5 cm direction from (L) to (R). Scapular bone (L), back of IV & V rib (L) broken found at (R) The cause of death spelt out in the autopsy reports of the deceased persons was shock and haemorrhage as a result of ante-mortem injuries which they had suffered. (22) It is signification to mention here that in their depositions in the trial Court, Dr. Adarsh Sanghai (P.W.4), Dr. J.N. Bajpai (P.W.5) and Dr. R.R. Aacharya (P.W.16) have reiterated the said cause of death of the deceased (1) unknown person, (2) Shiv Balak and (3) Ram Balak, respectively. (23) P.W.4-Adarsh Sanghai has deposed before the trial Court that on 09.10.1980, he was posted for post-mortem duty and on that date, at about 01:30 p.m., he conducted the post-mortem of the dead body of an unknown person, which was sent by S.O. Bighapur and brought it by C.P.282 Ram Bilash Yadav in a sealed condition and identified it by him. On examination, he initially found that the age of the deceased was about 30 years; it had been almost three days old since he died; the body physique was average; the stiffness of the body after death had ended; the decomposition of the body had begun; the body was covered with mud; the insects were crawling on the body; and blisters were present on the whole body. He further stated that on internal examination, it was found that the brain was decomposed; in the bone of pleura, one bending, two pellete, about half litre blood and fluid were found; both right and left lungs were torn; heart was torn and empty; the upper part of the sternum bone was broken; about 50 grams of semi-digested food was present in the stomach; small intestine was empty; and faces were present in the large intestine. He has further deposed that he found five big pellet and one piece of bending from the body of the deceased, which was sealed and sent to S.P. Unnao. The report of post-mortem is in his handwriting and signature (Ext. Ka.3). The death of the deceased could be attributable on 06.10.1980 at 05:30 p.m. Injuries no. 4 and 5 could not be caused by fire arm. He further stated that it is difficult to distinguish between the injuries caused soon before the death and within half an hour immediately after the death. In his cross-examination, P.W.4-Dr. Adarsh Sanghai has deposed that the clotting of the blood starts immediately after death. When the blood starts clotting, the dripping of the blood decreases. After the death, skin and subcutaneous tissue etc. starts getting hard. It is difficult to say that within 10-15 minutes, it becomes hard. After hardening, the inflicted injuries could be distinguishable from earlier injuries of death. He had minutely observed the injuries found during the post-mortem. Injuries No. 2, 3, 4, and 5 were ante-mortem. He further stated that at this moment, it is difficult to say where there was blood in these injuries as it is not mentioned in the report. He is not the ballistic expert. As per his opinion, bending could go into the body on firing from three feet with a pistol. The blackening and tattooing will not come in the condition of wearing clothes. One injury i.e. No.1 appears to have been inflicted within three feet. The death is also possible on 06.10.1980 at around 7-8 pm. The name and address of the deceased was unknown at the time of post-mortem. In the winter season, the blood coagulates quickly. (24) P.W.5-Dr. J.N. Bajpai, in his examination-in-chief, has deposed that on 08.10.1980, he was posted as Radiologist at District Hospital, Unnao and on that date, at 04:00 p.m., he conducted the post-mortem examination of the deceased Shiv Balak Singh, which was brought by Constable 354 C.P. Ram Pal Singh, Police Station Bighapur in a sealed condition and identified it by him. On examination, initially he found that the age of the deceased was about 40 years and it had been almost 2 days since he died. The physical appearance of the deceased was normal. There was mud on the body of the deceased. The post-death stiffness was not present and no sign of rot was found. He further deposed that on internal examination, he found that right side bone of the chest and seventh rib bone were broken; eighth and ninth rib on the left side of the chest were broken; the pleura on the right side had ruptured; about half a liter of blood was present in the pleural cavity; the right lung was torn; the membrane above the heart was also torn and was empty; the peritoneum was also torn; one liter of fluid was present in abdominal cavity; stomach and small intestine were empty and stool was present in large intestine; liver was ruptured on the right side; the spleen was also torn. He further stated that he prepared the post-mortem report (Ext. Ka. 4). The death could be possible on 06.10.1980 at 05:30 p.m. He also stated that gun shot injury would come from firing from close range because blackening was present. If injury no. 1 is caused immediately after death, it is difficult to distinguish it as ante-mortem and post-mortem. He stated that in his opinion, injuries no. 3 and 4 of the fire arm cannot be done after the In his cross-examination, P.W.5 has deposed that he cannot say from how many shots, injuries no. 2, 3 and 4 would have come. He cannot say whether injuries no. 2, 3 and 4 came from one shot or from three shots. These injuries could be possible on 06.10.1980, at 7-8 p.m. (25) The evidence of P.W.16- Dr. R.R. Acharya shows that on 13.10.1980, he was posted as Orthopedic Surgeon in District Hospital, Unnao. On the said date, at 1:30 p.m., he conducted the post-mortem of the deceased Ram Balak, son of Gaya Prasad, which was brought by C.P. 359 Ram Nath Singh of police station Bighapur in a sealed condition and identified by him. On examination of the body of the deceased Ram Balak, he opined that the deceased was about 40 years old and it had been almost 7 days since he died. On internal examination, he found that the left side skull bone was chopped off; the stomach and small intestine were empty; gas and faces were present somewhere in the large intestine. He further stated that injuries no. 1, 2 and 3 was inflicted with a sharp edged weapon and injury number 4 was inflicted by a fire arm. He had prepared the post-mortem report (Ext. Ka. 45) at the time of inspection, which was in his handwriting and signature. The death of the deceaed could be possible on 06.10.1980 at 05:30 pm. In cross-examination, he has stated that the death of the deceased could be more possible on account of injury no.1. The injury no.1 was more fatal than injury no.4. He further stated that it could not be possible for a man to survive after injury no.1. Injury no.1 could also be possible after death. He also stated that advance sign of decomposition in the dead body was present. The maggots flies were present in the dead body of the deceased. The skin was shriveled and the skin was also come out somewhere from the dead body. He could not find the mud on the dead body of the deceased. (26) The case was committed to the Court of Session in the usual manner where the convicts/appellants Ringu Pasi and Babu Pasi were charged under Sections 302 read with Section 34 I.P.C. for committing the murder of Sheo Balak and Ram Balak and under Section 404 I.P.C. for having taken arms from the deceased persons; and the acquitted accused, namely, Ramesh, Madan Lal, Ram Swaroop, Ganga Sewak, Neta alias Kunni, Chandra Kishor, Lalaunoo, Ram Roop and Ram Chandra, were charged under Sections 201, 148, 302/34, 302/114 I.P.C. They pleaded not guilty to the charges and claimed to be tried. Their defence was of denial. (27) During the trial, in all, the prosecution examined 16 (sixteen) witnesses, namely, P.W.1 Upendra Singh, P.W.2 Lallu, P.W.3 Dr. Singh and P.W.16 Dr. R. R. Aacharya. Out of sixteen witnesses, three of them, namely, Upendra Singh (P.W.1), Lallu (P.W. 2) and Krishna Mohan (P.W.6) were examined as eye-witnesses. (28) P.W.1-Upendra Singh, in his examination-in-chief, has deposed before the trial Court that he is the resident of village Hamirpur, police station Bihar. Village Usiya police station Bighapur is about 25 km away from his village. The deceased Shiv Balak and Ram Balak was his father and uncle, respectively. The name of his grand-father is Sri Gaya Prasad Singh. His uncle Ram Balak lived separately from his father. He was studying in Kanpur at the time of incident. Chandrika Pasi of his village was murdered about 7-8 months before this incident, in which his uncle Ram Balak and Raj Narayan etc. were challaned. Raj Narayan happens to be his uncle in a distant relationship. Dinesh Chandra and Harish Chandra, who were accused in the murder of Chandrika Pasi, is a resident of village Bhagwant Nagar. The hearing in Chandrika’s murder case was fixed on 06.10.1980 at Unnao. On 06.10.1980, he was coming from Kanpur to his village by bus. This bus goes from Kanpur to Buxar. Buxar lies ahead of Bhagwant Nagar. The bus starts from Kanpur at 3 or 3.30 pm in the evening. The number of that bus was U.T.T. 7367. For going from Kanpur to Buxar, the bus goes via Unnao. When the bus arrived at Unnao Bus Station, his father (deceased Shiv Balak) and uncle Ram Balak (deceased), grand-father Gaya Prasad (informant), Harish Chandra and injured Dinesh Chandra, Ram Balak Yadav resident of Pituakheda, Shivadhar Singh resident of Munaukheda, Ram Das Lohar resident of Hamirpur, Ram Balak Pasi resident of Hamirpur met him. At that time, his father (deceased Shiv Balak) was armed with 12 bore licensee gun; his uncle Ram Balak (deceased) was armed with rifle; and Dinesh Chandra (injured) was armed with rifle. They all were sitting on that bus. He was sitting on a two seater with his grand- father. His father (deceased Shiv Balak), uncle (deceased Ram Balak) and Harishchandra were seated behind him on the bus. Shivdhar, Ram Das, Ram Balak Yadav and Ram Balak Pasi were sitting on the rear seat of the bus. Babu Lal Pasi and Ringu Pasi (convicts/appellants) were also sitting from Unnao Bus Station on this bus. He knew both of them from earlier. Both of them used to come at Chandrika’s house of his village with Babu Lal Pasi Master. After this incident, Babu Lal Pasi Master was killed in After crossing Unnao, the bus reached at Bighapur Bus Station, where some passenger got off and some passengers boarded on the bus. The tiraha (an intersection of three roads) of Usiya is about 4-5 kms from Bighapur Bus Stand. For going from Bighapur to Bhagwant Nagar, the bus goes through Usiya tiraha (an intersection of three roads). After running from Bighapur, the bus stopped at the tiraha (an intersection of three roads) of Usiya. When the bus went 50-60 yards from the tiraha of Usiya, a loud sound of “jksdks jksdks (stop stop)” inside the bus came behind it and 3-4 fires also happened in the bus. When he looked back, he saw that his father (deceased Shiv Balak) and his uncle (deceased Ram Balak) got shot and they rolled on the seat. The bus stopped after running about 100-125 yards from the place where the bullet was fired. He saw that Babu Lal Pasi, Ringu Pasi and a 22-24 year’s old boy wearing red bushirt were standing near the seat of his father and uncle and all of them were armed with Katta (gun). Later on he came to know that the name of the boy wearing a red bushirt was Vinod Kumar. The rifle of his uncle was snatched by accused Babu Lal Pasi and his father’s gun was snatched by accused Ringu. All three people abused the passengers and asked them to get off the bus and they had said that “ugh mrjksxs rks xksyh ekj nasxs”. One boy wearing khakhi paint and bushirt was standing near Dinesh Chandra and that boy started to snatch the rifle of Dinesh and dragged Dinesh down from the next door of the bus and snatched his rifle. On this, the people sitting inside the bus got out and hid here and there. They (P.W.1 and his grand-father Gaya Prasad) also got down and got under cover. P.W.1 has further deposed that after getting down from the bus, he saw Babu Lal Master standing on the side of the road with a single bore gun in his hand and along with him, 10-12 men were standing by carrying अद्धी (half) guns and Katta (gun) and they also started firing. When the passengers went to the north, Babu Lal Master said that “lkyks dh yk’k ckgj fudky yks" (take out the dead body of the bastard). On this, 3-4 men entered the bus and brought out the dead bodies of his father and uncle and carried them towards the fields on the south side of the road. On the saying of Babu Lal Master, one of his companions wiped blood inside the bus with a towel. When an unknown passenger of a bus was running towards east, then, two men chased him and shot him 100-125 yards away from the bus, from which he died. Two miscreants also hanged his dead body and took it towards the south. P.W.1 has further stated that about 15-16 fires took place there. The people around were coming on listening to the sound of fire and had seen the incident. The people came near them (P.W.1, his grand-father and other passengers) after the accused fled. His grand-father had a conversation with those people and his grand- father asked the names of the accused. A passenger, who had landed on the Usiya Tiraha, had also come there and he told his name as Krishna Mohan. Krishna Mohan and other villagers had told the name of the assailant, who was wearing the Khakhi paint and bushirt, as Babu Lal Dom and also told the names of other accused as Madan Sevak, Kunni alias Neta, Chandrakishore Luhar, Babulal Pasi, Master Babu Pasi, Ringu Pasi, Laloni Pasi, Magraya. Out of these, he already knew Babu Pasi, Ringu Pasi and Kunni. Apart from these, there were also 3-4 assailants, whose names were not given by the villagers nor known to them. This incident is around 5:30 pm in the evening. The passengers had already gone but he (P.W.1), his grand-father, Das Lohar, driver & conductor of the Bus went to Bihar Police Station by bus and when reached at Takia Bus Stand, his grand-father had talked to someone, then, that person told that the place of incident comes under police station Bighapur. Thereafter, they returned from that bus for Bighapur. After coming to Bighapur, the bus was parked at the bus station. The police station Bighapur is inside the basti from Bighapur Bus Station, where bus could not go. He further stated that he scribed the report on the dictation of his grand-father and whatever his grand-father told him, he wrote the same in the report and handed it over to his grand-father. He has proved the report (Ext.Ka.1). Thereafter, he, Shiv Adhar Singh, Ram Balak Yadav, Ram Balak Pasi, Ramdas Lohar went to village Hamirpur for giving information. P.W.1 had further deposed that his father and uncle had weared the wrist watch. His father had also taken towel (angaucha). The miscreants had taken away the towel (angaucha) and wrist watch. His father and uncle had a lisence, which the miscreants also brought. At the time of incident, Dinesh Chandra sustained injuries on his hand while taking away his rifle by the miscreants. At that time, 2-3 passengers had also sustained injuries. P.W.1 has also stated that he had gone to the District Jail, Uanno to identify the miscreants, wherein he identified Chandra Kishore Luhar. He further stated that he had seen Chandra Kishore Luhar for the first time at the time of the incident and thereafter, at the time of identification proceedings and in between, he had not seen to him (Chandra Kishore Luhar). He did not even know him (Chandra Kishore Luhar) before it. P.W.1 has stated that his father Gaya Prasad is 75 years old and now he did not see and hear properly. Jageshwar is his younger uncle, who lived separately from him. He had told the number of gun, bicycle and license to the Inspector after looking at the documents of the house. On 07.10.1980, the body of his father Shiv Balak was found in the field and he identified it. (29) P.W.2-Lallu, in his examination-in-chief, has deposed that he lives in village Mardan Kheda, Usiya. He knows Babu Lal Master, who has been killed. Babul Lal Master was the resident of village Usiya and was a teacher in Katra Diwan Kheda. He knew Chandrika resident of Hamirpur. The maternal house of Chandrika was at village Katra, Diwankheda. Babu Lal was the master and Chandrika was the passi (iklh). Before this incident, Chandrika was killed. He had seen the mother of Chandika coming and going to the house of Babu Lal Master after the killing of Chandrika. It was about 16-17 months ago from today (27.02.1982). He went to Bighapur market. It was 05:00 or 05:15 in the evening. He came to bus stand from Bighapur market, where he met Jagmohan and Krishnamohan. He had to leave for his home by bus. When the bus came from Unnao going towards Buxer, Jagmohan and Krishna Mohan boarded the same bus. He also stated that EkS ftl lhV ij CkSBk Fkk mlds vkxs ,d lhV NksMdj rhu lhVj okyh lhV ij ,d vkneh jk;Qy fy, o ,d cUnwd fy, o rhljk vkneh [kkyh gkFk cSBs FksA (leaving one seat in front of his seat where he was sitting, on the three seater seat, a man with a rifle, another man with a gun, a man with empty handed were sitting). The man, who was empty handed, was sitting on the side of the window and the man, who was armed with rifle, was sitting in the middle of them. He had seen Babu Lal Pasi and Ringu Pasi (accused) sitting on the two-seater seat next to these three people. He knew both of them before. A man was also sitting behind the driver’s seat facing them. When the bus was about to leave, Vinod Pasi resident of Kusia had boarded inside the bus from the back door of the bus. He (Vinod Pasi) was wearing a red shirt. He (Vinod Pasi) came and stood near Ringu (accused). Babu Lal Dom (accused) resident of Usiya had also boarded inside the bus from the front door, who was wearing khakhi paint and bushirt. He (Babu Lal Dom) was standing next to the man armed with the rifle sitting behind the driver’s seat. He knew Vinod and Babu Lal Dom (accused) prior to it. P.W.2 had further stated that the bus had reached the tiraha (intersection road) of Usiya from Bighapur at around 5.30 pm, where Krishna Mohan got down from the bus. He (P.W.2) had to get down at Akwabad, which was ahead of Usiya Tiraha. He further stated that when the bus would have reached about 50 yards from Usiya tiraha, then, Babu Lal Pasi and Ringu Pasi (accused) stood up; made the sound of jksdks jksdks (stop stop); got up from their seats; and came to the gallery of the bus and from there, they (Babu Lal Pasi and Ringu Pasi) fired shot from their two kattas upon the men, who were armed with rifle and gun. Vinod had also fired with a katta. The gunman and rifleman had rolled on their seats as soon as shot. Thereafter, the bus stopped west of the culvert after covering a distance of about 100 yards. Babu Lal Pasi (accused) said that lkyks fudy dj Hkkx tkvks vxj dksbZ cksysxk rks mls Hkh xksyh ekj nsxs (bastard go out and run away, if anyone speaks, then they will shoot him too). Thereafter, the gun and rifle were snatched from the deceased by Ringu and Babu Lal Pasi, respectively. Babu Lal Dom (accused) also tried to get rid of the rifle from the second man but when that second man did not relieve the rifle, then, Babu Lal Dom jolted him and dragged him out of the bus and snatched the rifle outside. Thereafter, all the passengers got out of the bus and started running away. He (P.W.2) also got out of the bus and covered himself behind a tree on the side of the road. When he came out of the bus, he saw Babulal Master, Madan Pasi, Swaroop, Ram Roop, Ganga Sevak, Ram Chandra, Kunni and four more men to whom he did not recognize, were also standing north of the bus. Babu Lal Master had a gun in his hand and the rest of the people had अद्धी (half) guns and Katta (gun). Babu Lal Master and his associates had fired 10-12 shots. Babu Lal Master said that bu lkyks dh yk’ks [khp yks (drag the dead bodies of these bastard). On this, Ramesh, Madan, Chandra Kishore and Lalaunu went inside the bus. Chandra Kishore and Lalaunu were armed with Katta. Ramesh and Madan were empty handed. These four men took two dead bodies from the bus, hung them and went south. Thereafter, Babu Lal Master said that cl dk [kwu ikasN Mkyks (wipe the blood of the bus), on which Ramroop Pasi went inside the bus after soaking a towel. P.W.2 had also stated that a man, who ran towards north, was chased by Ram Chandra and Kunni and both of them fired at him, thereupon he had fallen and thereafter, his dead body was taken away by Ram Chandra and Kunni towards South direction. Later on all the accused were gone. After the accused left, he went near the bus. Jagmohan and Krishna Mohan also came near the bus and many more people from the village had come. A man had asked them the names of the miscreants, then, they had told the names of the miscreants. After asking the names of the miscreants, that person also asked them the names and addresses of the people. He stated that apart from these three deceased persons, he saw blood coming out from the injuries of 2-3 persons. Thereafter, 6-7 men of the same bus sat down and went towards Takia. He stated that Takia Patan is the same place. He (P.W.2) was staying there. Later on, a lot of people had gathered there. After about half an hour of departure, the same bus came from the side of the Takia and went towards Bighapur. He already knew all the accused. (30) P.W.6-Krishna Mohan, in his examination-in-chief, has deposed that his grocery shop is in village Usiya. It is a matter of about a year ago. He had gone to the market of Bighapur to get the items of his shop. Around 5 o'clock in the evening, he came to Bighapur Bus Stand with his luggage to go to his village. At Bighapur bus stand, he met Lallu Yadav resident of Mardan Kheda and Jagmohan Singh resident of Akbabad. Then, he sat on the bus going towards Buxer at bus stand. All three of them (P.W.6, Lallu Yadav and Jagmohan Singh) sat on the bus. Inside the bus, he saw Ringu, Babu also sat in the bus. These people (Ringu and Babu) were sitting on a two-seater seat in the bus and next to them, he saw three men sitting on the three-seater seat, out of which, one had a rifle and the other had a double barrel gun. The man armed with the rifle was sitting in the middle and the empty-handed man was sitting at the window. A man was sitting behind the seat of the driver with a rifle and his face was towards them (P.W.6 and others). When the bus was about to run, his acquaintances Vinod Pasi and Babu Lal Dom also boarded. Babu Lal Dom was then wearing a khaki paint bushirt and Vinod Kumar was wearing a red shirt. Babu Lal was standing near the rifle man who was sitting behind the driver of the bus and Vinod stood near Ringu Pasi. He was sitting in the back seat of the bus on which 4-5 other people were sitting besides him (P.W.6). The conductor sat in the front seat near the window. After moving from Bighapur, the bus reached Usiya Tiraha around 5:30 pm. He got off the bus at the Tiraha. The bus had moved forward thereafter. When the bus had moved forward about 50 yards, then, he heard the sound of gunfire from inside the bus. Afterwards, the bus stopped in front of the culvert about 40-50 kms towards the Tiraha. He saw the passengers of the bus getting out of the bus. Some of the passengers were standing here and there and some had fled. He saw 10-12 men standing near the bus, among them Babu Lal Master armed with single bore gun and Coolie alias Neta, Madan Lalaunu, Chandra Kishore, and 3-4 other men whom he did not recognize, armed with अद्धी (half) guns and Katta (gun), were there. When the bus stopped, these people started firing. Babu Lal Master had asked to take out the dead body and at his behest, Ramesh, Chandra Kishore, Madan and Lalaunu had entered the bus and brought out the bodies of two men. These four people had gone towards south with the corpse. Outside the bus, a passenger had run towards the east, then, he was told by Kunni and Ramroop and later on P.W.6 said that Coolie and Madan had run. Both of them had killed him. Thereafter, P.W.6 has said that Coolie and Ram Chandra had shot him and had gone towards south with his dead body. When the bus stopped, Ringu armed with gun and Babu Pasi armed with a rifle came out from the bus. Babu Lal Dom had dragged the person outside the bus, who was armed with rifle and sat behind the seat of driver. Babu Lal Master had asked to wipe the blood of the bus, on which Ramroop went inside after soaking the towel. He had heard about 15-16 fires in total. He saw this incident from where he had landed after moving a little further. Apart from him, Harish Chandra, Ram Kumar and many other villagers had seen this incident. After the accused had fled, they went near to the bus. On being asked, the names and addresses of the accused were given. Accused went towards the boaring of Babu Lal Master in south side. He also stated that to go from Bighapur to Usiya, one has to take a ticket for Akbabad and ticket of Usiya Tiraha is not being given. On that day, he had taken the ticket of Akbabad in the bus from the conductor itself. Babulal Master had been murdered. (31) After completion of prosecution evidence, statements of accused persons were recorded under Section 313 Cr.P.C., who denied the alleged incident and stated before the trial Court that they have been falsely implicated due to enmity. (32) The trial Court has not placed reliance upon the testimony of P.W.6-Krishna Mohan as his testimony is self-contradictory on material points. However, the trial Court believed the evidence of Upendra Singh (P.W. 1) and Lallu (P.W. 2) and convicted and sentenced the appellants, Babu Pasi alias Babu Lal Pasi and Ringu Pasi in the manner stated in paragraph-3. It, however, acquitted the remaining accused, namely, Ramesh, Madal Lal, Ram Swaroop, Ganga Sewak, Neta alias Kunni, Chandra Kishore, Lalaunoo, Ram Rup, Ram Chandra. It is pertinent to mention that the State of U.P. has not challenged their acquittal by preferring an appeal under Section 378 (1) Cr. P.C. (33) As mentioned earlier, aggrieved by their convictions and sentences, the convicts/appellants Babu Pasi alias Babu Lal Pasi and Ringu Pasi preferred the instant criminal appeal and during pendency of the instant appeal, appellant no.1-Babu Pasi alias Babu Lal Pasi died and the instant appeal filed on his behalf stood abated vide order dated 07.02.2019. Now, the instant appeal survives only in respect of appellant no.2-Ringu Pasi. (34) Sri H.B. Singh, learned Counsel for the appellant no.2-Ringu Pasi, has submitted that I. The alleged incident took place on 06.10.1980 at 05:30 p.m., whereas the FIR of the said incident was lodged on 06.10.1980 at 07:50 p.m. at police station Bighapur, District Unnao, which is situated at a distance of 3 miles i.e. 04.83 kms, from the place of the incident, hence the F.I.R. has not been lodged promptly. Furthermore, the F.I.R. runs about four pages, which is voluminous and casts doubt that it has been lodged by much consultation and deliberation. II. The informant Gaya Prasad, injured Dinesh Chandra Shukla, injured Devi Deen, driver and conductor of the bus, were not examined by the prosecution though they are material witnesses, which casts doubt on the reason for the purported presence of P.W.1 and P.W.2 at the place of the incident and also non-examination of them is fatal to the prosecution case. III. The trial Court has failed to take cognizance of the fact that no motive has been attributed to the appellant no.2-Ringu Pasi for commission of the offence, therefore, the appellant no.2- Ringu Pasi could not have been found guilty of the charge levelled against him. IV. P.W.1 is the son of the deceased Shiv Balak and nephew of the deceased Ram Balak, whereas P.W.2 was having previous enmity with co-accused Ramchandra. Furthermore, father of appellant no.2-Ringu Pasi, namely, Baijnath, was the surety of the accused in the cross case filed by P.W.2-Lallu against Ramchandra, Palangi and others. On account of the enmity, P.W.2 had disclosed the names of the accused/appellants to the informant Gaya Prasad and P.W.1-Upendra Singh and on that basis, appellants were falsely implicated in the case. Hence, these two eye-witnesses i.e. P.W.1 and P.W.2 are interested and partitioned witnesses and as such, their testimony have to be scrutinized with caution but the trial Court committed a serious error in not appreciating the evidence of these eye- witnesses with great care and caution. V. Though there were gunshot injuries inflicted upon the deceased Shiv Balak and Ram Balak but no recovery of the weapon of assault was made. VI. The evidence of P.W.1 and P.W.2 indicates that there was prior enmity between the deceased and family members of the accused persons and their companions because of which false implication cannot be ruled out. VII. Thus, according to the learned counsel, the prosecution has failed to establish the charge of murder against the appellant no.2-Ringu Pasi beyond reasonable doubt. (35) Ms. Smiti Sahai, learned Additional Government Advocate appearing on behalf of the State, on the other hand, supported the impugned judgment of the trial Court and argued that :- I. The incident took place at 5.30 pm, while the FIR was lodged at 07:50 pm on the basis of the written report filed by the informant Gaya Prasad. The police station was admittedly situated at a distance of 4.82 Kms (3 miles) from the place of occurrence. There is no delay in lodging the FIR. Furthermore, the FIR contains a detailed account of the nature of the incident and spells out the role is attributed to the appellants. II. The evidence of the eye-witnesses supported by other ocular and documentary evidence has been rightly examined and appreciated by the trial court. III. No adverse inference can be drawn against the prosecution for non-examination of the informant Gaya Prasad Singh and other witnesses because the prosecution has fully established the charge against the appellants beyond reasonable doubt by leading reliable and convincing evidence. IV. In the presence of direct evidence, motive recedes to the background. Therefore, the prosecution does not need to prove the motive of the appellant no.2-Ringu Pasi to murder the deceased. V. On these grounds, it has been urged on behalf of the State that the finding of guilt which was arrived at by the trial Court, is not liable to warrant any interference in appeal. (36) We have heard the learned counsel for the respective parties at length and have carefully gone through the impugned judgment and order of conviction and sentence passed by the learned trial Court. We have also re-appreciated the entire evidence on record, particularly the depositions of P.W.1 Upendra Singh and P.W.2- Lallu. We have also considered the injuries found on the three dead bodies of the deceased persons and injuries found on the body of the two injured persons. (37) The crucial question in this appeal is whether the evidence of the three eye witnesses viz. Upendra Singh P.W. 1, Lallu P.W. 2 and Krishna Mohan P.W.6 inspires confidence or not. Our considered answer to the said question is in the negative. We may straightway mention that these witnesses had also implicated 09 other co-accused persons and all of them have been clearly acquitted by the learned trial Court on all counts. As stated earlier, the State of Uttar Pradesh has not challenged the acquittal of these nine acquitted persons. (38) The trial Court, after analyzing the evidence of P.W.6-Krishna Mohan, formed the opinion that he gave self-contradictory version on most material points viz. as to who chased the unknown person and shot dead and took his body, therefore, his presence on the spot is doubtful. In this backdrop, the trial Court has rightly not placed reliance upon the testimony of P.W.6- (39) Now, out of two eye witnesses i.e. P.W.1 and P.W.2, the evidence of Upendra Singh P.W. 1 can be straight way rejected by us on the ground that although the deceased had been done to death at about 05:30 p.m., on 06.10.1980, Upendra Singh (P.W.1) could not identify the acquitted accused/convicts-appellants. He could only identify Chandra Kishore (acquitted accused) at the test identification parade held on 03.01.1981, by Sri Janardan Singh, the Special Executive Magistrate, Unnao (P.W. 10). In our view, if P.W.1 (Upendra Singh) could not identify the appellants after about three months after the incident what is the sanctity to be attached to his nominating the appellants in his statement in the trial Court. More so, P.W.10-Sri Janardan Singh, the Special Executive Magistrate, Unnao, in his cross-examination, had deposed before the trial Court that informant Gaya Prasad made one mistake in identifying the other accused persons; Upendra Singh (P.W.1) also made nine mistakes in identifying the other accused persons and none of them were identified by him; witness Dinesh Chandra (injured) made ten mistakes in identifying the ten accused persons. P.W.10, in his cross- examination, had also deposed before the trial Court that “xokgku us tks c;ku esjs lkeus fn, Fks “MdSrh o dRy djrs oDr EkkSds ij ns[kk FkkA” (The statement, which was given by the witnesses, before him that “while committing robbery and murder, saw on the spot”). It means that the witnesses i.e. P.W.1-Upendra Singh, informant Gaya Prasad, injured Dinesh Chandra, stated before P.W.10-Sri Janardan Singh that they saw the identified accused persons while committing robbery and murder on the spot. But the prosecution case is not that the accused/appellants had committed robbery and also murdered the deceased. This is all the more so because in his cross-examination, P.W.1-Upendra Singh has deposed that the names of the accused/appellants were stated to him after the incident by Krishna Mohan, Lallu Mohan (P.W.2), Jagmohan Singh and other nearby villages and on that basis, he knew the names of the accused persons after the incident. (40) Apart from the aforesaid, P.W.1-Upendra Singh, in his cross- examination, had deposed before the trial Court that at the time of the incident, there were about 60-70 passengers in the bus, out of which, six man were armed with fire arms, however, out of these six man, he didn't see anyone firing. He also deposed in the cross-examination that he could not see how many people fired inside the bus. P.W.1-Upendra Singh had further deposed that at the time of the incident, he (P.W.1) and his grand-father Gaya Prasad (informant) were sitting in two seater seat and behind 2-3 seat of them, his father Shiv Balak (deceased), his uncle Ram Balak (deceased) and Harishchandra were sitting in three seater seat. Shivadhar, Ram Das, Ram Balak Yadav and Ram Balak Pasi were sitting in the rear seat of the bus. Injured Dinesh Chandra was sitting behind the seat of driver with his rifle. He also stated that he knew Babulal Pasi and Ringu Pasi (appellants) prior to the incident as they used to come to Chandrika Pasi’s house and Babu Lal Pasi Master before the incident. However, this statement of P.W.1-Upendra Singh was denied by the accused Ringu Pasi and Babu Lal Pasi in their statement under Section 313 Cr.P.C. He said that he did not know Chandrika Pasi. (41) It also comes out from the depositions of P.W.1-Upendra Singh that both appellants Babulal Pasi and Ringu Pasi boarded the bus from Unnao Bus Stand. P.W.1, in his cross-examination, has stated that “tgkW eS cSBk Fkk ogh ls cSBs&CkSBs esjh ckrphr esjs firk o pkpk ls gqbZ Fkh” (from where he sat, he had a conversation with his father and uncle while sitting). Meaning thereby, from Unnao Bus Station to the place of occurrence, he (P.W.1) had a conversation with his father and his uncle, who sat behind 2-3 seats in three seater seat. At that relevant time, both accused/ appellants Babu Lal Pasi and Ringu Pasi were sitting just near to the seat of his father, his uncle and Harishchandra. In such circumstances, Babu Lal Pasi and Ringu Pasi (appellants) were very well aware that P.W.1-Upendra Singh and his grand-father Gaya Prasad (informant) are the family members of Ram Balak and Shiv Balak (deceased) and Harish Chandra who sat with Ram Balak and Shiv Balak (deceased) in the window seat of three seater seat of the bus, was also known to the deceased. P.W.1-Upendra Singh, in his cross-examination, has deposed that “fdlh cnek’k us esjs mij Qk;j ugh fd;k u eq>s ekjk ihVk u esjs ikl vk;kA” (none of the miscreants had fired upon him nor assaulted him nor came near to him). He has also stated that “fdlh cnek’k us eq>ls :i;s iSlks ds gksus ds ckor ugh iwNk FkkA” (none of the miscreants had asked him about the money). P.W.1-Upendra Singh had stated before the trial Court that when the bus went 50-60 yards from the tiraha (an intersection of three roads) of Usiya, a loud sound “jksdks jksdks” (stop stop) inside the bus came behind him and 3-4 fires also happened in the bus and then at this moment, he turned back and saw that his father Shiv Balak and his uncle Ram Balak got shot; they rolled on the seat; Babu Lal Pasi, Ringu Pasi and a 22-24 year’s old boy wearing red bushirt were standing near the seat of his father and uncle with Katta (pistol); and snatched the gun of his father and rifle of his uncle. P.W.1, in his cross-examination, has categorically admitted the fact that “Qk;j gksus ij eS vius firk o pkpk dh vksj nkSMk ugh FkkA fdlh Qk;j djus okys dks idMus dh dksf’k’k eSus ugh dh FkhA” (after firing, he did not run towards his father and uncle. He did not try to catch any person who fired). (42) Considering the aforesaid circumstances, it is quite strange/improbable that Ram Balak, Shiv Balak (deceased) and Harish Chandra were sitting together in three seater seat in the bus; after shot to Shiv Balak and Ram Balak with Katta, accused/ appellants had neither made any injury to Harishchandra who sat in the window seat with Shiv Balak and Ram Balak nor the accused/appellants had made any effort to cause injuries to P.W.1 and his grand-father Gaya Prasad even knowing very well that deceased Shiv Balak was the father of P.W.1 and deceased Ram Balak was the uncle of P.W.1. It is also quite surprising that P.W.1-Upendra Singh and informant Gaya Prasad did not try to save the deceased persons, who were their family members, from grip the accused/appellants nor raised any alarm or made hue and cry at that moment. But surprisingly, they (P.W.1, informant Gaya Prasad, Harischandra and other passengers) all peacefully took their items from the bus; got down from the bus; hid behind the tree; and from there all three persons and other passengers saw the accused/appellants bring out the dead bodies of the deceased (Ram Balak, Shiv Balak). P.W.1 had also admitted the fact that he did not see any one to fire upon his father Shiv Balak and his uncle Ram Balak, however, he knew the name of these accused persons on the saying of Krishna Mohan, Lallu Yadav (P.W.2), Jagmohan and other villagers, who were said to be travelling with the said bus. But surprisingly, Krishna Mohan, Jagmohan and other villagers were not examined by the prosecution. All the circumstances as discussed hereinabove shows that the testimony of P.W.1-Upendra Singh is not credible and creates doubt upon the prosecution story and it appears that P.W.1-Upendra Singh and his grand-father Gaya Prasad were not present at the place of the incident (43) We are also not inclined to place any reliance on the testimony of Lallu P.W. 2. We have our grave doubts about his claim of having seen the incident. In his examination-in-chief, he stated that on the date of the incident, he went to the Bighapur Market and at about 05:00-05:15 p.m., he went from Bighapur Market to Bighapur Bus Stand, where he met Jagmohan and Krishnamohan. All of them boarded on a bus coming from Unnao and going towards Buxer. After boarding on the bus, he saw that leaving one seat in front of his seat where he was sitting in the bus, on the three seater seat, a man with a rifle, another man with a gun, a man with empty handed were sitting, whereas Babu Lal Pasi and Ringu Pasi (accused) were sitting on the two- seater seat next to these three peoples. He also saw that a man was also sitting behind the driver’s seat by facing face towards them. When the bus was about to leave, Vinod Pasi resident of Kusia wearing a red shirt had boarded inside the bus from the back door of the bus and stood near Ringu (accused). Babu Lal Dom (accused) resident of Usiya had also boarded inside the bus from the front door, who was wearing khakhi paint and bushirt and stood next to the man armed with the rifle sitting behind the driver’s seat. He knew Babu Lal, Ringu Pasi, Vinod and Babu Lal Dom (accused) before. P.W.2 has further deposed that Krishna Mohan got down from the bus at tiraha (intersection road) of Usiya at around 5.30 pm but he (P.W.2) had to get down at Akwabad, which was ahead of Usiya Tiraha. He further stated that when the bus would have reached about 50 yards from Usiya tiraha, then, Babu Lal Pasi and Ringu Pasi (accused) stood up; made the sound of jksdks jksdks (stop stop); got up from their seats; and came to the gallery of the bus and from there, they (Babu Lal Pasi and Ringu Pasi) fired shot from their two kattas upon the men, who were armed with rifle and gun. Vinod had also fired with a katta. Thereafter, the gunman and rifleman had rolled on their seats as soon as shot. (44) As per the aforesaid depositions of P.W.2, it transpires that accused Babu Lal Pasi, Ringu Pasi and Vinod armed with Katta fired upon the men armed with rifle and gun sat in the three seater seat. It is admitted by P.W.2 also that the man, who was empty handed and sitting with rifleman and gunman in a window seat of three seater seat, did not receive any injury. P.W.1, in his cross-examination, had stated that the names of the accused persons were stated to him and his grand-father Gaya Prasad (informant) by Krishna Mohan, Lallu (P.W.2). From the depositions of P.W.1, it transpires that accused/appellants were very well aware of the relationship of the deceased with P.W.1, informant and Harishchandra, still the accused/appellants did nothing to them and all of them were allowed by the accused/appellants to keep their articles from the bus, got down the bus and hid behind the tree. P.W.2 had also supported the statement of the P.W.1. Thus, it appears that the testimony of P.W.2 is not trustworthy. (45) P.W.16-Dr. R.R. Acharya, who conducted the post-mortem report of deceased Ram Balak, has stated before the trial Court that injuries no. 1, 2 and 3 (incised wounds) could be attributable by the sharp edged weapon, whereas injury no.4 could be attributable by fire arm. In his cross-examination, P.W.16-Dr. R.R. Acharya has deposed that “e`rd dh e`R;q pksV ua0 1 ls gh gksuk vf/kd laHko gS” (the death of the deceased is mostly possible by injury no.1). He further stated that “pksV ua0 1 ua0 4 dh vis{kk vf/kd izk.k?kkrd FkhA” (injury no.1 was more fatal than injury no.4). He also deposed that “pksV ua0 1 Hkh ejus ds ckn dh laHko ugh gSA ” (injury no.1 is also not possible after death). From this statement of P.W.16-Dr. R.R. Acharya, it transpires that injury no.1 i.e. “incised wound 12.0 cm x 4.0 cm x bone-deep on the face from (L) ear to lower jaw. Maxillary bones (L) mandible bone of (L) skull cut.” is more fatal than injury no.4 i.e. firearm wound and further injury no.1 is also not possible after death meaning thereby it was caused before death. (46) It is pertinent to mention that both P.W.1-Upendra Singh and P.W.2-Lallu had deposed before the trial Court that appellants Babu Lal Pasi and Ringu Pasi had fired upon Ram Balak and Shiv Balak with Kattas (pistol), due to which, they died on the spot. Except the allegation of firing with Kattas upon the deceased, both the eye-witnesses had not stated other mode of assault upon the deceased persons. That being the position, as to how the injury no.1 i.e. incised wound, on the dead body of the deceased Ram Balak came, has not been explained by the prosecution by giving any evidence in this regard. Furthermore, the prosecution has also not explained how one multiple incised wound came on the body of the deceased Sheo Balak and two other incised wound in addition to incised wound (injury no.1) came on the body of the deceased Ram Balak. In these backgrounds, it appears that both eye-witnesses i.e. P.W.1- Upendra Singh and P.W.2-Lallu were not seen the incident. (47) It is also relevant to add that both P.W.1 and P.W.2 have made depositions to the effect that prior enmity existed between the members of the P.W.1 and P.W.2 one side and the members of the accused/appellants on the other side. P.W.1, in his cross- examination, has deposed that in the year 1973, Chandrika (since deceased) had lodged a case under Section 307 I.P.C. against his father and uncle. He further deposed that in the murder of Chandrika, his uncle Ram Balak, another uncle Ram Narayan, witness Dinesh Chandra (injured herein) and Harishchandra (who was sitting along with the deceased Ram Balak and Shiv Balak at the time of the incident in a window seat of three seater seat of the bus) were accused. P.W.2, in his cross-examination, has stated that he had enmity with Ramroop, Ram Swaroop, Ganga Sewak and Ramchandra (acquitted accused) and he had a criminal case against them and the second case are going on. He further stated that the second case, which was filed, is a cross case under Sections 323 and 325 I.P.C.. He stated that along with him 12 peoples were accused and from the side of Ram Roop etc., 16 peoples were accused. In the cross case, bail was granted to them. P.W.2 has further stated that at the time of the incident, the said cross criminal case under Sections 323, 325 I.P.C. was going on. He further stated that jkeLo:i ls 1977 essa >xMk gqvk Fkk mlds ckn jke:i cxSjg ls >xMk gqvkA ge yksxks dk >xMk jkeLo:i vkfn ls 1977 ls 'kq: gqvk gSA dzkl dsl dh isf’k;ks ij jkeLo:i oxSjg vkrs gS rFkk ge lc yksx Hkh vkrs gSaA P.W.2 has further deposed in cross- examination that in his cross case, accused Ramchandra, Smt. Batasa and his father Palangi are also the accused. He also stated that he knew the father of appellant Ringu, namely, Baijnath. According to the appellants, in the cross-case, Baijnath, who is the father of appellant Ringu, was the surety of Palangi. Thus, it appears that there was long enmity between the parties, hence involving the accused/appellants falsely in a criminal case such as the instant case by P.W.1 and P.W.2 cannot be ruled out. (48) Learned Additional Government Advocate strenuously urged that the circumstance that the FIR of the incident was lodged promptly i.e. about 1 hour 50 minutes of the incident taking place and in the same, the act of causing injuries to the deceased with a fire arms has been attributed to the appellants speaks volumes in favour about the participation of the appellants in the murder of the deceased. We have reflected over the said submission of learned AGA. On the first blush, it was certainly very attractive. However, on a deeper scrutiny, we realised that all that glitters is not gold. It is well-settled that the FIR can only be used to contradict or corroborate the maker and is not substantive evidence. The substantive evidence are the statements of the witnesses in Court. The substantive evidence in the instant case was in the form of the evidence of the three eye witnesses viz. Upendra Singh P.W. 1, Lallu P.W. 2 and Krishna Mohan P.W.6 and that we have rejected for the reasons stated by us above. Hence this submission of learned AGA fails. (49) As it is manifest, neither the informant Gaya Prasad nor injured Dinesh Shukla and Devideen nor driver and conductor of the bus has been examined by the prosecution. Submission of appellants is that they are natural witnesses and no explanation has been given for their non- examination and hence, adverse inference against the prosecution deserves to be drawn. (50) In the case of Surinder Kumar v. State of Haryana : (2011) 10 SCC 173, the Apex Court has held that though in a different context, that a failure on the part of the prosecution in non- examining the two children, aged about six and four years, respectively, when both of them were present at the site of the crime, amounted to failure on the part of the prosecution. (51) In State of H.P. v. Gian Chand : (2001) 6 SCC 71, the Apex Court, while dealing with non-examination of material witnesses has expressed that:- "14 ... Non-examination of a material witness is not a mathematical formula for discarding the weight of the testimony available on record, howsoever natural, trustworthy and convincing it may be. The charge of court leveled against the prosecution should be examined in the background of the facts evidence adduced and available on record. If the Court finds the evidence adduced worthy of being relied on then the testimony has to be accepted and acted on though examined. However, if the available evidence suffers from some infirmity or cannot be (52) In Takhaji Hiraji v. Thakore Kubersing Chamansing and others : (2001) 6 SCC 145, the Apex Court has held that it is true that if a material witness, who would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. In such a case the court ought to scrutinise the worth of the evidence adduced. The Court should pose the question whether in the facts and circumstances of the case, it was necessary to examine such other witness. If so, whether such witness was available to be examined and yet was being withheld from the court. If the answer is positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable, the Court can safely act upon it, uninfluenced by the factum of non-examination of other witnesses. (53) In Dahari v. State of U.P. : (2012) 10 SCC 256 while discussing the non-examination of a material witness, the Apex Court expressed the view that when he was not the only competent witness who would have been fully capable of explaining the factual situation correctly. The prosecution case stood fully corroborated by the medical evidence and the testimony of other reliable witnesses, no adverse inference could be drawn against the prosecution. (54) From the aforesaid authorities, it is quite vivid that non- examination of material witnesses would not always create a dent in the prosecution's case. However, as has been held in the case of State of H.P. v. Gian Chand (supra), the charge of withholding a material witness from the Court levelled against the prosecution should be examined in the background of facts and circumstances of each case to find out whether the witnesses were available for being examined in the Court and were yet withheld by the prosecution. That apart, the Court has first to assess the trustworthiness of the evidence adduced and available on record. If the court finds the evidence adduced worthy of being relied on then the testimony has to be accepted and acted on. There may be other witnesses available who could also have been examined but were not examined. Another aspect which is required to be seen whether such witness or witnesses are the only competent witnesses who could have been fully capable of explaining correctly the factual situation. (55) In the instant case, we have already noticed that informant-Gaya Prasad, who was sitting along with P.W.1 in the bus; Harishchandra, who was sitting along with the deceased in the window seat of three seater seat of the bus; injured Dinesh Chandra Shukla and Devideen; and conduct and driver of the bus, were the eye-witness. They are the most natural and competent witnesses. They really could have thrown immense light on the factual score, but for the reasons best known to the prosecution, they have not been examined. It is also not the case of the prosecution that they had not been cited as their evidence would have been duplication or repetition of evidence or there was an apprehension that they would have not supported the case of the prosecution. In the absence of any explanation whatsoever, we are of the considered opinion that it has affected the case of the prosecution. (56) P.W.1-Upendra Singh, in his cross-examination, had stated that on account of extra old age and loss of vision, informant-Gaya Prasad was not produced before the trial Court. This explanation seems to be true. However, as stated hereinabove, there were other material eye-witnesses i.e. Harishchandra, injured Dinesh Chandra Shukla and Devi Deen, and conducter and driver of the bus still, no exaplantion has been produced by the prosecution for their non-examination in the trial Court. Therefore, we are of the considered view that the conviction recorded by the trial Court on the testimony of P.W.1 and P.W.2 without any corroboration is unsustainable. (57) At this juncture, we feel distressed by the thought that the triple murderer is going unpunished but we cannot and should not be swayed by our emotions. What we have to see is whether the prosecution has led cogent, truthful and credible evidence to establish the guilt of the appellants beyond reasonable doubt. Such evidence in our judgement is wanting in the instant case. It might be that the prosecution case may be true. But before a conviction can be recorded/sustained a Court has to be satisfied that the prosecution case must be true. Emphasising this, the Apex Court in the case of Sarwan Singh v. State of Punjab : 1957 AIR 637, in paragraph 11 observed thus :- It may be as Mr. Gopal Singh strenuously urged before us that there is an element of truth in the prosecution story against both the appellants Mr. Gopal Singh contended that, considered as a whole the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence." (58) In the instant case, the distance between 'may be true' and 'must be true' has not been covered by the prosecution by adducing legal, reliable and unimpeachable evidence. (59) Pursuant to the above discussion, we are squarely satisfied that the instant is a fit case in which the appellant no.2-Ringu Pasi deserves the benefit of doubt. We propose giving him the benefit of that doubt. (60) In the result, the instant criminal appeal is allowed. The judgment and order dated 17.07.1982 passed in Sessions Trial No. 210 of 1981 so far as it relates to the appellant no.2-Ringu Pasi is hereby set aside. The appellant no.2-Ringu Pasi is acquitted from the charges levelled against him. He is in jail. He shall be set at liberty forthwith if no longer required in any other criminal case. (61) Appellant no.2-Ringu Pasi is directed to file personal bond and two sureties each in the like amount to the satisfaction of the Court concerned in compliance with Section 437-A of the Code of Criminal Procedure, 1973. (62) Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance.
The High Court in Allahabad, which held its hearing in Lucknow, has overturned a murder conviction after 40 years. It canceled the decision made by a lower court (the Sessions Court) and ordered prison officials to release the man immediately. Ringu Pasi had filed a criminal appeal in 1982. He was found guilty by a judge in Unnao of murder and of dishonestly taking someone else's property. Two judges, Justice Ramesh Sinha and Justice Vivek Varma, finally made a decision on his appeal on February 22, 2022. The judges believed that the lawyers trying the case (the prosecution) did not provide strong, honest, and believable evidence. This evidence was needed to prove that the accused people were guilty without any real question. The court said that the prosecution's evidence only suggested the accused "might be true." It didn't prove that it "must be true." The court felt strongly that Ringu Pasi, one of the accused, should be given the benefit of the doubt because the evidence was not strong enough. In the original trial, 11 people were accused. The Sessions Court found 9 of them not guilty. It found the two men who appealed (Babu Pasi and Ringu Pasi) guilty of the crimes already mentioned. While the appeal was still waiting to be decided, Babu Pasi passed away in 2015. Because of this, the court only made a decision about Ringu Pasi's case. Ringu Pasi's lawyer argued several points. First, the police report (FIR) against the accused was very long and seemed to have been written after a lot of discussion and planning. The lawyer also said that the prosecution's failure to question an important witness was a serious problem for their case. Finally, the lawyer argued that because there was existing bad blood between the victim and the accused's family, it was possible the accused were wrongly blamed. On the other hand, the State's lawyer defended the lower court's decision. They claimed that the police report was filed quickly, so it was unlikely that the accusations were false. The State's lawyer also said that the trial court had correctly looked at and valued the evidence from eyewitnesses, along with other visible and written proof. Findings The High Court did not accept the evidence from the three eyewitnesses presented by the prosecution. The court said that their statements were not trustworthy. The court also pointed out that these same witnesses had accused 9 other people in the case. However, the trial court had found all 9 of those people not guilty of any charges. The High Court added that the State of Uttar Pradesh had not tried to challenge the decision to free these nine people. The court also observed that there seemed to be a long-running disagreement between the people involved. Because of this, the possibility of falsely accusing the appealing defendants in a criminal case, like this one, could not be ignored. The High Court also agreed with the lawyers for Ringu Pasi that two key witnesses were not questioned. The court stated that these witnesses were the most obvious and capable people to testify. They could have greatly helped explain the facts. However, for reasons the prosecution knew, they were not called to speak. The prosecution also didn't say that these witnesses weren't called because their evidence would be the same as others, or because they feared the witnesses wouldn't support their case. Since no reason was given, the court believed this hurt the prosecution's case. The judges referred to an earlier decision by the Supreme Court from 1957. In that case, the Supreme Court had said that even if there seems to be some truth in what the prosecution says, there's a big difference between something that "might be true" and something that "must be true." This difference, the Supreme Court ruled, must be filled with strong, trustworthy, and undeniable evidence. Using this legal rule for the current case, the High Court was convinced that the accused should be given the benefit of the doubt. Therefore, Ringu Pasi's appeal was granted. The decision made by the lower court was canceled, and Ringu Pasi was found not guilty of the crimes he was accused of.
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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 5491 of 2019 Counsel for Applicant :- Mohemmed Amir Naqvi,Amjad Counsel for Opposite Party :- G.A.,A S G,S B Pandey 1. Heard Sri Jyotindra Mishra, learned Senior Counsel assisted by Sri Kapil Mishra, learned counsel for the applicant and Sri Anurag Kumar Singh, learned counsel for the CBI and also perused the material available on record. 2. By means of the present bail application, the applicant seeks bail in Case Crime No.810 of 2018, under Sections 147, 149, 386, Krishna Nagar, District- Lucknow, during the pendency of trial. 3. Facts in brief giving rise to the present application are that the Informant/victim is a resident of Alambagh, Lucknow and engaged in the real estate business having his office at Gomti Nagar, Lucknow. At the time of the offence, the accused Atique Ahmad, Ex-Member of Parliament, Phulpur, Allahabad was detained in Deoria Jail and he had tried to pressurize the Informant for extortion of money for about two years and out of fear, the Informant had also given him some amount as such. The two henchmen of Atique Ahmad, namely, Mohd. Farooq and Jaki Ahmad had been trying to extort money from the Informant for about several months. The said two accused persons had also taken possession of the office of the Informant forcibly and got their names inducted in the board of the company and procured digital signatures of the Informant and his sister Aarti Jaiswal. Even after that the Informant did not transfer any shares of the company to them. On 26.12.2018, another goon of Atique Ahmad took the Informant to Deoria Jail where Atique Ahmad along with his son Umar and 10-12 other persons were found present. The two accomplices of Atique Ahmad, namely, Jafarullah and Gulam Sarvar (the present applicant) had beaten the Informant mercilessly thereby breaking his fingers and causing him several external and internal injuries. The accused Atique Ahmad in the jail premises itself got the companies M.J. Infra Land L.L.P. Private Limited and M.J. Infra State Private Limited transferred forcibly in the name of his associates Mohd. Farooq and Jaki Ahmad. The accused Atique Ahmad has even retained the Fortuner Car of the Informant bearing No. UP-32 JR 1804 with him. It has also been alleged in the FIR that the accused Atique Ahmad had obtained signatures of the Informant on blank letter heads including his resignation letters and also pressurized the Informant to make forged signatures of his sister on the blank papers. The accused Atique Ahmad and his associates forcibly obtained the digital signatures of the Informant and his sister and thereby got the names of their associates inducted in all the aforesaid companies. 4. The instant FIR has been lodged at Police Station- Krishna Nagar, Lucknow. The Supreme Court of India vide its order dated 23.4.2019 passed in Writ Petition (Civil) No.699 of 2016 in the matter of Ashwani Kumar Upadhyay and Others Vs. Union of India and Others transferred the investigation of the case to Central Bureau of Investigation (CBI) and was also directed to submit quarterly status report of the investigation to the Court. The main accused Atique Ahmad was then shifted to Ahmedabad Jail, Gujarat. 5. Sri Jyotindra Mishra, learned Senior Counsel appearing on behalf of the applicant has stated that the applicant is being maliciously prosecuted in the present case. The jurisdiction of the case falls within the Police Station- Gomti Nagar, Lucknow and not Krishna Nagar where the instant FIR has been initially lodged. Learned Senior Counsel has further argued that the statement of the Informant has been recorded four times by the I.O. and in each of the subsequent statement, he has improvised from the previous one. Initially, the two statements were recorded by the local police and the subsequent two have been recorded by the CBI. Absolutely vague allegation has been made in the statement of the Informant that the applicant was present in Deoria Jail with Jafarullah and had even beaten him up thereby causing grievous hurt to him. 6. As per the prosecution allegation, one goon of accused Atique Ahmad had taken Informant forcibly to Deoria Jail by a Fortuner Car No. UP-32 JR 1804, though it is impossible that a single unarmed person would forcibly pickup the Informant at Lucknow and take him to Deoria Jail and during such a long distance from Lucknow to Deoria Jail, the Informant did not raise any alarm while he had ample opportunity to do so and resist. The allegation against the applicant is that his black car was following the said Fortuner car no. UP-32 JR 1804 of the Informant from Lucknow to Deoria Jail. He has dropped the Informant back 100 metres before his house by his car as the alleged Fortuner of the Informant was forcibly retained by co-accused Atique Ahmad. On the way to Deoria Jail, there are six toll booths and surprisingly, there is no CCTV footage to indicate that the applicant had followed the said Fortuner car of the Informant. There is nothing on record to suggest that the applicant was in Deoria jail in connivance with the jail authorities. 7. Learned Senior Counsel has also pointed out several contradictions in the two supplementary statements of the Informant/victim recorded by the I.O. regarding the complicity of the applicant. The prosecution version is doubtful, suspicious and cannot be relied upon. 8. Learned Senior Counsel for the applicant has next contended that the charge-sheet has already been filed in the matter and the trial is not going forward and not even the charge has been framed against the applicant. The CBI is also not interested in getting the trial concluded expeditiously as on the last three occasions, the public prosecutor of the CBI was not present in the Court and the case was adjourned only on this ground. 9. Learned Senior Counsel for the applicant has also relied upon the judgement of Supreme Court passed in the case of Union of India versus K.A. Najeeb1, and the relevant para-16 reads as under:- "16. This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. In Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India, it was held that undertrials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, Courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, Courts would ordinarily be obligated to enlarge them on bail." 10. Learned Senior Counsel for the applicant has also submitted that the four co-accused persons, namely, Irfan, Nitesh Mishra, Mahendra Kumar Singh and Pawan Kumar Singh, have already been enlarged on bail by the court concerned passed in Bail Application Nos. 7363 of 2019, 12768 of 2021, 14713 of 2021 and 1786 of 2021, vide orders dated 30.11.2021, 10.12.2021 and 15.12.2021, respectively. The applicant is languishing in jail since 18.2.2019 having no criminal history to his credit, deserves to be released on bail. In case, the applicant is released on bail, he will not misuse the liberty of bail and shall cooperate with the trial. 11. Per contra, Sri Anurag Kumar Singh, learned counsel for the CBI has vehemently opposed the bail prayer of the applicant on the ground that it was the applicant who had beaten the Informant in jail premises along with one Jafarullah. After retaining the alleged Fortuner car by Atique Ahmad, the Informant was sent back to his house in the car of applicant being kidnapped by the co-accused Gulam Moinuddeen Siddiqui. The applicant is named in the FIR and his name has also come up in every statement of the victim. There is no contradiction or discrepancy in the statement of the Informant with regard to the applicant. 12. Learned counsel for the CBI has further argued that the applicant and the co-accused persons are dreaded criminals of the area and out of their fear, the Informant could not dare to depose against them. Several witnesses have been put under Witness Protection Programme. He has further argued that looking at the seriousness and gravity of the subject matter, the investigation was entrusted to CBI by the order of Supreme Court and also the main accused Atique Ahmad has been shifted to Ahmedabad Jail, Gujarat. The local police had also filed charge-sheet against the applicant. The applicant along with other co-accused persons had also forced the Informant to put his sister's forged signature on blank papers/letterheads. 13. Learned counsel for the CBI has further submitted that the case of the applicant is not at par with the other co-accused persons who have been enlarged on bail. The trial could not proceed further owing to Covid-19. The offence is not against a particular person, but against the society as a whole. Investigation is pending against the jail officials involved in the said offence. 14. Learned counsel has fairly conceded the fact that there is no criminal history of the applicant but has stated that he is the main associate of co-accused Atique Ahmad who had been five times M.L.A., once an M.P. and a notorious criminal, against whom 106 cases are pending trial including the heinous offences and out of his fear, the FIR has been lodged after a delay. There is every likelihood that he shall misuse the liberty of bail as he is an influential person and the main associate of Atique Ahmad, therefore, he does not deserve any indulgence. In case, the applicant is released on bail, he will misuse the liberty of bail by extending threat and intimidation to the prosecution witnesses. 15. It would be inappropriate to discuss the evidence in depth at this stage because it is likely to influence the trial court but from the perusal of the evidence collected during investigation and the charge- sheet, it appears that the complicity of the applicant is well established by the statements of the Informant. The applicant had followed the alleged Fortuner car of the Informant to Deoria Jail and beaten him up in jail premises coercing him to sign the papers and had dropped him back near his house. 16. In the changing social circumstances, it has now become obvious that nobody dares to depose against the dreaded and hardened criminals out of fear. The Informant, who himself is a victim could garner some courage as some point of time to depose against such high profile criminals. The crime seems to have been committed after a well orchestrated plan to deprive the Informant/victim of his valuable assets and the culpability of applicant cannot be ruled out from the evidence adduced. 17. It is quite clear that an order of bail cannot be granted in an arbitrary or fanciful manner. A ratio decidendi of the judgement of the Apex Court in Anil Kumar Yadav Vs. State (N.C.T.) of Delhi and another2, has stated that in serious crimes, the mere fact that the accused is in custody for more than one year, may not be a relevant consideration to release the accused on bail. 18. Considering the facts and circumstances of the case, the nature of offence, severity of offence, threat perception of the witnesses, complicity of accused, involvement of higher echelons of society as well as the rival submissions advanced by the learned counsel for the parties and without expressing any opinion on the merits of the case, I am not inclined to release the applicant on bail. 19. Accordingly, the bail application of the applicant is rejected. 20. It is clarified that the observations made herein are limited to the facts brought in by the parties pertaining to the disposal of bail application and the said observations shall have no bearing on the merits of the case during trial. 21. However, it is directed that every endeavor shall be made by the trial court to conclude the trial expeditiously, if there is no other legal impediment.
The Allahabad High Court said no to bail on Thursday for a main partner of a former politician, Atique Ahmad. Atique Ahmad is currently in jail. This decision was made for a case involving kidnapping and demanding money. The judge, Justice Krishan Pahal, also said that it's clear people are now too scared to speak against dangerous criminals because of fear. The case in brief The court was looking at a request for bail from Gulam Sarvar. He is said to be a helper of Atique Ahmad. Gulam Sarvar is accused of forcing a real estate businessman, who is the victim, to give him money. It's claimed that the person asking for bail, called the applicant, followed the victim's car to Deoria jail. The victim was forced to go there. Afterward, the applicant dropped the victim back near his home. It's also claimed that the applicant beat the victim badly. This broke his fingers and caused many injuries, both on the outside and inside his body. The police report, called the FIR, also claims that Atique Ahmad made the victim sign blank papers. These included his resignation letters. Atique Ahmad also forced the victim to fake his sister's signatures on other blank papers. Atique Ahmad and his partners, including the applicant, also forced the victim and his sister to give their digital signatures. They then used these to add their own partners to the victim's companies. It's claimed this event happened in December 2018 inside Deoria Jail. Atique Ahmad, his son Umar, and about 10 to 12 other people were supposedly there. The lawyer for the applicant argued that the police had already filed their report, called the charge sheet. But the court case, or trial, has not moved forward. The applicant has not even been officially accused of a crime yet. The lawyer also claimed that the CBI, a central investigation agency, was not trying to finish the trial quickly. This was because the CBI's lawyer, called the public prosecutor, did not show up to court the last three times. The case was delayed each time because of this. But the CBI's lawyer argued that the applicant and the other people accused in the case are dangerous criminals in the area. The lawyer said the victim was too scared to speak against them because of fear. The CBI lawyer also argued that this case was very serious. Because of this, the Supreme Court ordered the CBI to handle the investigation. Also, the main person accused, Atique Ahmad, has been moved to a jail in Ahmedabad, Gujarat. Court's observations After looking closely at the evidence gathered during the investigation and the police report, the Court believed the victim's statements clearly showed the applicant was involved. The Court also stated that the victim, at some point, managed to get enough courage to speak against such important criminals. The crime seems to have been planned carefully to take away the victim's valuable property. The evidence presented clearly suggests the applicant is guilty. Because of all these points—the facts of the case, how serious the crime was, the danger to witnesses, the accused's involvement, and that important people in society were involved—the Court listened to both lawyers. Without saying whether the applicant was truly guilty or innocent, the Court DENIED the applicant's request for bail.
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 5491 of 2019 Counsel for Applicant :- Mohemmed Amir Naqvi,Amjad Counsel for Opposite Party :- G.A.,A S G,S B Pandey 1. Heard Sri Jyotindra Mishra, learned Senior Counsel assisted by Sri Kapil Mishra, learned counsel for the applicant and Sri Anurag Kumar Singh, learned counsel for the CBI and also perused the material available on record. 2. By means of the present bail application, the applicant seeks bail in Case Crime No.810 of 2018, under Sections 147, 149, 386, Krishna Nagar, District- Lucknow, during the pendency of trial. 3. Facts in brief giving rise to the present application are that the Informant/victim is a resident of Alambagh, Lucknow and engaged in the real estate business having his office at Gomti Nagar, Lucknow. At the time of the offence, the accused Atique Ahmad, Ex-Member of Parliament, Phulpur, Allahabad was detained in Deoria Jail and he had tried to pressurize the Informant for extortion of money for about two years and out of fear, the Informant had also given him some amount as such. The two henchmen of Atique Ahmad, namely, Mohd. Farooq and Jaki Ahmad had been trying to extort money from the Informant for about several months. The said two accused persons had also taken possession of the office of the Informant forcibly and got their names inducted in the board of the company and procured digital signatures of the Informant and his sister Aarti Jaiswal. Even after that the Informant did not transfer any shares of the company to them. On 26.12.2018, another goon of Atique Ahmad took the Informant to Deoria Jail where Atique Ahmad along with his son Umar and 10-12 other persons were found present. The two accomplices of Atique Ahmad, namely, Jafarullah and Gulam Sarvar (the present applicant) had beaten the Informant mercilessly thereby breaking his fingers and causing him several external and internal injuries. The accused Atique Ahmad in the jail premises itself got the companies M.J. Infra Land L.L.P. Private Limited and M.J. Infra State Private Limited transferred forcibly in the name of his associates Mohd. Farooq and Jaki Ahmad. The accused Atique Ahmad has even retained the Fortuner Car of the Informant bearing No. UP-32 JR 1804 with him. It has also been alleged in the FIR that the accused Atique Ahmad had obtained signatures of the Informant on blank letter heads including his resignation letters and also pressurized the Informant to make forged signatures of his sister on the blank papers. The accused Atique Ahmad and his associates forcibly obtained the digital signatures of the Informant and his sister and thereby got the names of their associates inducted in all the aforesaid companies. 4. The instant FIR has been lodged at Police Station- Krishna Nagar, Lucknow. The Supreme Court of India vide its order dated 23.4.2019 passed in Writ Petition (Civil) No.699 of 2016 in the matter of Ashwani Kumar Upadhyay and Others Vs. Union of India and Others transferred the investigation of the case to Central Bureau of Investigation (CBI) and was also directed to submit quarterly status report of the investigation to the Court. The main accused Atique Ahmad was then shifted to Ahmedabad Jail, Gujarat. 5. Sri Jyotindra Mishra, learned Senior Counsel appearing on behalf of the applicant has stated that the applicant is being maliciously prosecuted in the present case. The jurisdiction of the case falls within the Police Station- Gomti Nagar, Lucknow and not Krishna Nagar where the instant FIR has been initially lodged. Learned Senior Counsel has further argued that the statement of the Informant has been recorded four times by the I.O. and in each of the subsequent statement, he has improvised from the previous one. Initially, the two statements were recorded by the local police and the subsequent two have been recorded by the CBI. Absolutely vague allegation has been made in the statement of the Informant that the applicant was present in Deoria Jail with Jafarullah and had even beaten him up thereby causing grievous hurt to him. 6. As per the prosecution allegation, one goon of accused Atique Ahmad had taken Informant forcibly to Deoria Jail by a Fortuner Car No. UP-32 JR 1804, though it is impossible that a single unarmed person would forcibly pickup the Informant at Lucknow and take him to Deoria Jail and during such a long distance from Lucknow to Deoria Jail, the Informant did not raise any alarm while he had ample opportunity to do so and resist. The allegation against the applicant is that his black car was following the said Fortuner car no. UP-32 JR 1804 of the Informant from Lucknow to Deoria Jail. He has dropped the Informant back 100 metres before his house by his car as the alleged Fortuner of the Informant was forcibly retained by co-accused Atique Ahmad. On the way to Deoria Jail, there are six toll booths and surprisingly, there is no CCTV footage to indicate that the applicant had followed the said Fortuner car of the Informant. There is nothing on record to suggest that the applicant was in Deoria jail in connivance with the jail authorities. 7. Learned Senior Counsel has also pointed out several contradictions in the two supplementary statements of the Informant/victim recorded by the I.O. regarding the complicity of the applicant. The prosecution version is doubtful, suspicious and cannot be relied upon. 8. Learned Senior Counsel for the applicant has next contended that the charge-sheet has already been filed in the matter and the trial is not going forward and not even the charge has been framed against the applicant. The CBI is also not interested in getting the trial concluded expeditiously as on the last three occasions, the public prosecutor of the CBI was not present in the Court and the case was adjourned only on this ground. 9. Learned Senior Counsel for the applicant has also relied upon the judgement of Supreme Court passed in the case of Union of India versus K.A. Najeeb1, and the relevant para-16 reads as under:- "16. This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. In Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India, it was held that undertrials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, Courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, Courts would ordinarily be obligated to enlarge them on bail." 10. Learned Senior Counsel for the applicant has also submitted that the four co-accused persons, namely, Irfan, Nitesh Mishra, Mahendra Kumar Singh and Pawan Kumar Singh, have already been enlarged on bail by the court concerned passed in Bail Application Nos. 7363 of 2019, 12768 of 2021, 14713 of 2021 and 1786 of 2021, vide orders dated 30.11.2021, 10.12.2021 and 15.12.2021, respectively. The applicant is languishing in jail since 18.2.2019 having no criminal history to his credit, deserves to be released on bail. In case, the applicant is released on bail, he will not misuse the liberty of bail and shall cooperate with the trial. 11. Per contra, Sri Anurag Kumar Singh, learned counsel for the CBI has vehemently opposed the bail prayer of the applicant on the ground that it was the applicant who had beaten the Informant in jail premises along with one Jafarullah. After retaining the alleged Fortuner car by Atique Ahmad, the Informant was sent back to his house in the car of applicant being kidnapped by the co-accused Gulam Moinuddeen Siddiqui. The applicant is named in the FIR and his name has also come up in every statement of the victim. There is no contradiction or discrepancy in the statement of the Informant with regard to the applicant. 12. Learned counsel for the CBI has further argued that the applicant and the co-accused persons are dreaded criminals of the area and out of their fear, the Informant could not dare to depose against them. Several witnesses have been put under Witness Protection Programme. He has further argued that looking at the seriousness and gravity of the subject matter, the investigation was entrusted to CBI by the order of Supreme Court and also the main accused Atique Ahmad has been shifted to Ahmedabad Jail, Gujarat. The local police had also filed charge-sheet against the applicant. The applicant along with other co-accused persons had also forced the Informant to put his sister's forged signature on blank papers/letterheads. 13. Learned counsel for the CBI has further submitted that the case of the applicant is not at par with the other co-accused persons who have been enlarged on bail. The trial could not proceed further owing to Covid-19. The offence is not against a particular person, but against the society as a whole. Investigation is pending against the jail officials involved in the said offence. 14. Learned counsel has fairly conceded the fact that there is no criminal history of the applicant but has stated that he is the main associate of co-accused Atique Ahmad who had been five times M.L.A., once an M.P. and a notorious criminal, against whom 106 cases are pending trial including the heinous offences and out of his fear, the FIR has been lodged after a delay. There is every likelihood that he shall misuse the liberty of bail as he is an influential person and the main associate of Atique Ahmad, therefore, he does not deserve any indulgence. In case, the applicant is released on bail, he will misuse the liberty of bail by extending threat and intimidation to the prosecution witnesses. 15. It would be inappropriate to discuss the evidence in depth at this stage because it is likely to influence the trial court but from the perusal of the evidence collected during investigation and the charge- sheet, it appears that the complicity of the applicant is well established by the statements of the Informant. The applicant had followed the alleged Fortuner car of the Informant to Deoria Jail and beaten him up in jail premises coercing him to sign the papers and had dropped him back near his house. 16. In the changing social circumstances, it has now become obvious that nobody dares to depose against the dreaded and hardened criminals out of fear. The Informant, who himself is a victim could garner some courage as some point of time to depose against such high profile criminals. The crime seems to have been committed after a well orchestrated plan to deprive the Informant/victim of his valuable assets and the culpability of applicant cannot be ruled out from the evidence adduced. 17. It is quite clear that an order of bail cannot be granted in an arbitrary or fanciful manner. A ratio decidendi of the judgement of the Apex Court in Anil Kumar Yadav Vs. State (N.C.T.) of Delhi and another2, has stated that in serious crimes, the mere fact that the accused is in custody for more than one year, may not be a relevant consideration to release the accused on bail. 18. Considering the facts and circumstances of the case, the nature of offence, severity of offence, threat perception of the witnesses, complicity of accused, involvement of higher echelons of society as well as the rival submissions advanced by the learned counsel for the parties and without expressing any opinion on the merits of the case, I am not inclined to release the applicant on bail. 19. Accordingly, the bail application of the applicant is rejected. 20. It is clarified that the observations made herein are limited to the facts brought in by the parties pertaining to the disposal of bail application and the said observations shall have no bearing on the merits of the case during trial. 21. However, it is directed that every endeavor shall be made by the trial court to conclude the trial expeditiously, if there is no other legal impediment.
The Allahabad High Court said no to bail on Thursday for a main partner of a former politician, Atique Ahmad. Atique Ahmad is currently in jail. This decision was made for a case involving kidnapping and demanding money. The judge, Justice Krishan Pahal, also said that it's clear people are now too scared to speak against dangerous criminals because of fear. The case in brief The court was looking at a request for bail from Gulam Sarvar. He is said to be a helper of Atique Ahmad. Gulam Sarvar is accused of forcing a real estate businessman, who is the victim, to give him money. It's claimed that the person asking for bail, called the applicant, followed the victim's car to Deoria jail. The victim was forced to go there. Afterward, the applicant dropped the victim back near his home. It's also claimed that the applicant beat the victim badly. This broke his fingers and caused many injuries, both on the outside and inside his body. The police report, called the FIR, also claims that Atique Ahmad made the victim sign blank papers. These included his resignation letters. Atique Ahmad also forced the victim to fake his sister's signatures on other blank papers. Atique Ahmad and his partners, including the applicant, also forced the victim and his sister to give their digital signatures. They then used these to add their own partners to the victim's companies. It's claimed this event happened in December 2018 inside Deoria Jail. Atique Ahmad, his son Umar, and about 10 to 12 other people were supposedly there. The lawyer for the applicant argued that the police had already filed their report, called the charge sheet. But the court case, or trial, has not moved forward. The applicant has not even been officially accused of a crime yet. The lawyer also claimed that the CBI, a central investigation agency, was not trying to finish the trial quickly. This was because the CBI's lawyer, called the public prosecutor, did not show up to court the last three times. The case was delayed each time because of this. But the CBI's lawyer argued that the applicant and the other people accused in the case are dangerous criminals in the area. The lawyer said the victim was too scared to speak against them because of fear. The CBI lawyer also argued that this case was very serious. Because of this, the Supreme Court ordered the CBI to handle the investigation. Also, the main person accused, Atique Ahmad, has been moved to a jail in Ahmedabad, Gujarat. Court's observations After looking closely at the evidence gathered during the investigation and the police report, the Court believed the victim's statements clearly showed the applicant was involved. The Court also stated that the victim, at some point, managed to get enough courage to speak against such important criminals. The crime seems to have been planned carefully to take away the victim's valuable property. The evidence presented clearly suggests the applicant is guilty. Because of all these points—the facts of the case, how serious the crime was, the danger to witnesses, the accused's involvement, and that important people in society were involved—the Court listened to both lawyers. Without saying whether the applicant was truly guilty or innocent, the Court DENIED the applicant's request for bail.
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No.21 of 2004 against the concerned accused persons for the alleged offence punishable under Sections 426, 427, 341 and 114 of the Indian Penal Code. It is submitted that initially the concerned Magistrate Court passed an order under Section 210 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’) and report of the concerned police officer was called for. After perusing the report of the concerned officer, the concerned Magistrate Court followed the procedure under Section 202 of the Code. The deposition of the present applicant was recorded at Exh.14. After perusing the material placed on record, the concerned Magistrate Court dismissed the complaint under Section 203 of the Code vide order dated 16.07.2016. It is submitted that thereafter petitioner filed Criminal Revision Application No.28 of 2016 before the Sessions Court and Sessions Court, vide impugned order dated 24.08.2021, dismissed the said revision application and therefore the petition has preferred this petition under Article 227 of the Constitution of India. 5. Learned advocate for the petitioner has assailed the impugned order mainly on the ground that the concerned Magistrate Court has not followed the procedure prescribed under the Code before dismissing the complaint under Section 203 of the Code. It is further submitted that the Sessions Court has also not properly appreciated the relevant aspects. Learned advocate, thereafter, referred to the averments and allegations made against the concerned accused person in the complaint filed by the present petitioner. After referring to the said allegations, it is submitted that, prima facie, the ingredients of the alleged offence are made out and therefore the concerned trial Court has committed an error while dismissing the complaint on the ground that dispute between the parties is of civil nature. Learned advocate, therefore, urged that both the impugned orders passed by the Courts below be quashed and set 6. On the other hand, learned APP has opposed this petition and referred the impugned order passed by the concerned Magistrate Court, copy of which is placed on record at page 24-A of the compilation. Learned APP has thereafter referred the deposition of the petitioner, which was recorded by the concerned Magistrate Court while conducting inquiry under Section 202 of the Code. Learned APP, thereafter, referred the observations made by the concerned Sessions Court while rejecting the revision application. Learned APP after referring the aforesaid documents, contended that no error is committed by the concerned Sessions Court while rejecting the revision application and therefore this petition may not be entertained. 7. Having heard the learned advocates appearing for the parties and having gone through the material placed on record, it would emerge that the petitioner filed private compliant under Sections 426, 427, 341 and 114 of IPC before the concerned Magistrate Court. Thereafter, the concerned Magistrate passed an order under Section 210 of the Code and asked the concerned police authority to submit a report. After perusing the report, the concerned Magistrate thought it fit to follow the procedure prescribed under Section 202 of the Code. During the course of inquiry conducted under Section 202 of the Code, the deposition of the present petitioner – original complainant was recorded vide Exh.14, copy of which is placed on record at page 21A of the compilation. The concerned Magistrate, thereafter, on the basis of the material available on the record with him, specifically gave the finding that the dispute between the complainant – present petitioner and the original accused is of civil nature and therefore on that ground the complaint filed by the petitioner came to be dismissed under Section 203 of the Code. Petitioner, thereafter, preferred revision application under Section 397 of the Code before the concerned Sessions Court. The said revision application is also dismissed. From the record, it appears that a Regular Civil Suit No.107 of 2004 is pending between the parties for the same issue before the concerned Civil Court at Mahuva. The said aspect is reflected from the impugned order passed by the concerned Sessions Court. The concerned opponent of the Revision Application produced a copy of the said civil suit vide Mark 18/1 before the concerned Sessions Court and after verifying the record, the Sessions Court has specifically observed that the civil suit is also pending between the parties for the same reason and therefore revision application filed by the present petitioner was not entertained. 8. This Court has considered the reasoning recorded by the Sessions Court and this Court is of the view that no error is committed by the Sessions Court while rejecting the revision application filed by the petitioner. Hence, no interference is required in the present petition, which is filed under Article 227 of the Constitution of India. Accordingly, petition is
The Gujarat High Court confirmed a lower court's decision to dismiss a private legal complaint. The lower court had thrown out the complaint because the disagreement was a civil matter, not a criminal one. The High Court also noted that the lower court had correctly followed the steps outlined in Section 203 of the Code of Criminal Procedure, which explains how criminal cases are handled. A group of judges, led by Justice Vipul Pancholi, was hearing a special request, called a "petition." The person who filed this petition (the Petitioner) was challenging an earlier ruling. That ruling came from an Additional Sessions Judge, who had rejected the Petitioner's appeal. This appeal was about an even earlier decision from a Magistrate, a type of judge, who had dismissed the Petitioner's own complaint under Section 203 of the Criminal Procedure Code. The Petitioner had originally filed a complaint against certain people, accusing them of crimes like mischief, wrongful restraint, and helping others commit crimes. These were based on specific sections of the Indian Penal Code (IPC). The Petitioner claimed that the Magistrate first issued an order under Section 210 of the Criminal Procedure Code. This order asked the police for a report. Section 210 of the Criminal Procedure Code explains the steps to take when someone files a complaint and the police are also investigating the same alleged crime. After that, the Magistrate followed the process in Section 202 of the Code. During this step, the Petitioner gave a sworn statement, called a "deposition." Section 202 allows a Magistrate to delay formally starting a case against the accused. Instead, the Magistrate can investigate the case personally. This section also gives the Magistrate the power to hear sworn testimony from witnesses. So, in this case, the Magistrate recorded the Petitioner's sworn statement. The Magistrate then decided that the disagreement between the Petitioner and the accused was a civil matter, not a criminal one. Because of this, the Magistrate dismissed the complaint under Section 203 of the Code. Section 203 states that a Magistrate must dismiss a complaint if, after reviewing the sworn statements of the person complaining and any witnesses, and after looking at any investigation under Section 202, the Magistrate believes there isn't enough reason to continue the case. The Magistrate must also provide reasons for this decision. Later, the Petitioner's appeal to the Sessions Court was also turned down. The Petitioner argued that the Magistrate Court did not follow the proper steps under Section 203. The Petitioner also claimed that important parts of the complaint were ignored. Because of this, the Petitioner asked the High Court to cancel the Magistrate's decision. The Petitioner further argued that there was enough initial evidence to suggest that crimes had been committed, meaning the complaint should not have been dismissed. On the other hand, the Respondent, who was the opposing party, argued that the Magistrate had properly investigated the case under Section 202 of the Code. Therefore, the Respondent claimed, the Magistrate had made no mistake. Justice Pancholi mainly pointed out that the Magistrate had first ordered a police report under Section 210. Then, only after carefully following the steps in Section 202, which involved investigating and listening to the Petitioner's sworn statement, did the Magistrate dismiss the complaint. The reason given was that the disagreement was a civil matter, as allowed under Section 203. The judges also noticed that a separate civil lawsuit about the same issue was already ongoing between the two parties in another court. The Magistrate had considered this fact. For these reasons, the High Court decided it was appropriate not to accept the Petitioner's request. As a result, the High Court found no problems with the lower court's decision and refused to cancel it. Therefore, the Petitioner's special request was turned down.
No.21 of 2004 against the concerned accused persons for the alleged offence punishable under Sections 426, 427, 341 and 114 of the Indian Penal Code. It is submitted that initially the concerned Magistrate Court passed an order under Section 210 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’) and report of the concerned police officer was called for. After perusing the report of the concerned officer, the concerned Magistrate Court followed the procedure under Section 202 of the Code. The deposition of the present applicant was recorded at Exh.14. After perusing the material placed on record, the concerned Magistrate Court dismissed the complaint under Section 203 of the Code vide order dated 16.07.2016. It is submitted that thereafter petitioner filed Criminal Revision Application No.28 of 2016 before the Sessions Court and Sessions Court, vide impugned order dated 24.08.2021, dismissed the said revision application and therefore the petition has preferred this petition under Article 227 of the Constitution of India. 5. Learned advocate for the petitioner has assailed the impugned order mainly on the ground that the concerned Magistrate Court has not followed the procedure prescribed under the Code before dismissing the complaint under Section 203 of the Code. It is further submitted that the Sessions Court has also not properly appreciated the relevant aspects. Learned advocate, thereafter, referred to the averments and allegations made against the concerned accused person in the complaint filed by the present petitioner. After referring to the said allegations, it is submitted that, prima facie, the ingredients of the alleged offence are made out and therefore the concerned trial Court has committed an error while dismissing the complaint on the ground that dispute between the parties is of civil nature. Learned advocate, therefore, urged that both the impugned orders passed by the Courts below be quashed and set 6. On the other hand, learned APP has opposed this petition and referred the impugned order passed by the concerned Magistrate Court, copy of which is placed on record at page 24-A of the compilation. Learned APP has thereafter referred the deposition of the petitioner, which was recorded by the concerned Magistrate Court while conducting inquiry under Section 202 of the Code. Learned APP, thereafter, referred the observations made by the concerned Sessions Court while rejecting the revision application. Learned APP after referring the aforesaid documents, contended that no error is committed by the concerned Sessions Court while rejecting the revision application and therefore this petition may not be entertained. 7. Having heard the learned advocates appearing for the parties and having gone through the material placed on record, it would emerge that the petitioner filed private compliant under Sections 426, 427, 341 and 114 of IPC before the concerned Magistrate Court. Thereafter, the concerned Magistrate passed an order under Section 210 of the Code and asked the concerned police authority to submit a report. After perusing the report, the concerned Magistrate thought it fit to follow the procedure prescribed under Section 202 of the Code. During the course of inquiry conducted under Section 202 of the Code, the deposition of the present petitioner – original complainant was recorded vide Exh.14, copy of which is placed on record at page 21A of the compilation. The concerned Magistrate, thereafter, on the basis of the material available on the record with him, specifically gave the finding that the dispute between the complainant – present petitioner and the original accused is of civil nature and therefore on that ground the complaint filed by the petitioner came to be dismissed under Section 203 of the Code. Petitioner, thereafter, preferred revision application under Section 397 of the Code before the concerned Sessions Court. The said revision application is also dismissed. From the record, it appears that a Regular Civil Suit No.107 of 2004 is pending between the parties for the same issue before the concerned Civil Court at Mahuva. The said aspect is reflected from the impugned order passed by the concerned Sessions Court. The concerned opponent of the Revision Application produced a copy of the said civil suit vide Mark 18/1 before the concerned Sessions Court and after verifying the record, the Sessions Court has specifically observed that the civil suit is also pending between the parties for the same reason and therefore revision application filed by the present petitioner was not entertained. 8. This Court has considered the reasoning recorded by the Sessions Court and this Court is of the view that no error is committed by the Sessions Court while rejecting the revision application filed by the petitioner. Hence, no interference is required in the present petition, which is filed under Article 227 of the Constitution of India. Accordingly, petition is
The Gujarat High Court confirmed a lower court's decision to dismiss a private legal complaint. The lower court had thrown out the complaint because the disagreement was a civil matter, not a criminal one. The High Court also noted that the lower court had correctly followed the steps outlined in Section 203 of the Code of Criminal Procedure, which explains how criminal cases are handled. A group of judges, led by Justice Vipul Pancholi, was hearing a special request, called a "petition." The person who filed this petition (the Petitioner) was challenging an earlier ruling. That ruling came from an Additional Sessions Judge, who had rejected the Petitioner's appeal. This appeal was about an even earlier decision from a Magistrate, a type of judge, who had dismissed the Petitioner's own complaint under Section 203 of the Criminal Procedure Code. The Petitioner had originally filed a complaint against certain people, accusing them of crimes like mischief, wrongful restraint, and helping others commit crimes. These were based on specific sections of the Indian Penal Code (IPC). The Petitioner claimed that the Magistrate first issued an order under Section 210 of the Criminal Procedure Code. This order asked the police for a report. Section 210 of the Criminal Procedure Code explains the steps to take when someone files a complaint and the police are also investigating the same alleged crime. After that, the Magistrate followed the process in Section 202 of the Code. During this step, the Petitioner gave a sworn statement, called a "deposition." Section 202 allows a Magistrate to delay formally starting a case against the accused. Instead, the Magistrate can investigate the case personally. This section also gives the Magistrate the power to hear sworn testimony from witnesses. So, in this case, the Magistrate recorded the Petitioner's sworn statement. The Magistrate then decided that the disagreement between the Petitioner and the accused was a civil matter, not a criminal one. Because of this, the Magistrate dismissed the complaint under Section 203 of the Code. Section 203 states that a Magistrate must dismiss a complaint if, after reviewing the sworn statements of the person complaining and any witnesses, and after looking at any investigation under Section 202, the Magistrate believes there isn't enough reason to continue the case. The Magistrate must also provide reasons for this decision. Later, the Petitioner's appeal to the Sessions Court was also turned down. The Petitioner argued that the Magistrate Court did not follow the proper steps under Section 203. The Petitioner also claimed that important parts of the complaint were ignored. Because of this, the Petitioner asked the High Court to cancel the Magistrate's decision. The Petitioner further argued that there was enough initial evidence to suggest that crimes had been committed, meaning the complaint should not have been dismissed. On the other hand, the Respondent, who was the opposing party, argued that the Magistrate had properly investigated the case under Section 202 of the Code. Therefore, the Respondent claimed, the Magistrate had made no mistake. Justice Pancholi mainly pointed out that the Magistrate had first ordered a police report under Section 210. Then, only after carefully following the steps in Section 202, which involved investigating and listening to the Petitioner's sworn statement, did the Magistrate dismiss the complaint. The reason given was that the disagreement was a civil matter, as allowed under Section 203. The judges also noticed that a separate civil lawsuit about the same issue was already ongoing between the two parties in another court. The Magistrate had considered this fact. For these reasons, the High Court decided it was appropriate not to accept the Petitioner's request. As a result, the High Court found no problems with the lower court's decision and refused to cancel it. Therefore, the Petitioner's special request was turned down.
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Case :- CRIMINAL MISC. WRIT PETITION No. - 718 of 2006 Counsel for Respondent :- Govt. Advocate, Mohd. Aslam Ansari 1. Heard Sri Deepak Singh, Advocate holding brief of Sri Sumit Goyal, learned counsel for the petitioner and learned AGA for the State and perused the record. None has appeared on behalf of opposite party 2. This petition under Article 227 of Constitution of India has been preferred against the order dated 09.12.2005, passed by C.J.M., Saharanpur in criminal case no. 5664/2005 (State vs Ishwar & Others), under Section 147, 323, 324, 325, 308, 504 and 506 IPC, P.S. Gangoh, District Saharanpur, as well as against the order dated 24.12.2005, passed by the Court of Sessions Judge, Saharanpur in Misc. case no.284 of 2005 (Ishwar vs. State), pertaining to above stated case. 3. Perusal of record shows that the respondent no.2 has lodged first information report under Section 147, 323, 324, 504 and 506 IPC against petitioner and co-accused and that during investigation section 308 I.P.C. was also added. After investigation, police have submitted charge-sheet for the offences under Section 147, 323, 324, 325, 308, 504, 506 IPC in the court of C.J.M., Saharanpur and accordingly cognizance was taken. The accused persons moved an application alleging no case under Section 308 I.P.C. is made out, hence cognizance under section 308 I.P.C. be withdrawn. Said application was rejected vide impugned order dated 09.12.2005 passed by the C.J.M. Saharanpur. Against the order dated 09.12.2005, the accused persons have preferred a criminal revision, which was decided by the Sessions Judge, Saharanpur vide dated 24.12.2005 and the revision was dismissed. 4. It has been argued by learned counsel for the petitioner that the first information report was lodged for offences under Section 147, 323, 324, 504, 506 IPC and during investigation section 308 IPC was added. Later on the direction of Circle Officer, police have conducted further investigation and thereafter a supplementary report was preferred for offences under Section 147, 323, 324, 504 and 506 IPC with conclusion that none of the injury of injured was dangerous to life but despite that the C.J.M. Saharanpur has taken cognizance under Section 308 IPC, besides the other sections of IPC. The order passed by C.J.M. Saharanpur is thoroughly illegal and arbitrary and that in view of injury report of injured, no case under Section 308 IPC is made out. Learned counsel has referred injury report of injured Charan Singh and submitted that injury sustained by him is not dangerous to life. It has further been submitted that the revisional court also did not consider the matter in correct perspective and committed error by rejecting the revision filed by the petitioner and thus, both the impugned orders are liable to be set aside. 5. Learned AGA for State has submitted that there is no illegality or perversity in the impugned orders. As the charge-sheet was submitted for offences under Section 147, 323, 324, 325, 504, 506, 308 IPC and cognizance was taken and thus, that court was not competent to review its own order. Further, the petitioner has not placed the certified copy of injury report on record. However, it appears that injured has sustained several fractures and other injuries at vital parts of his body and that it cannot be said that Section 308 IPC is not made out. It was also stated that it is a session triable case and thus, the Magistrate is not competent to drop any section and that petitioner may raise his grievances before the court of Sessions at the stage of charge. Learned AGA submits that there is no illegality or perversity in the impugned orders. 6. It is well settled that scope of judicial review in such matters where the orders of Courts below are assailed before this Court in a writ petition under Article 226/227 of the Constitution is very limited. This power involves a duty on the High Court to keep the inferior courts and tribunals within the bounds of their authority and to see that they do what their duty requires and that they do it in a legal manner. The power under article 227 of the Constitution does not vest the High Court with any unlimited prerogative to correct all species of hardship or wrong decisions made within the limits of the jurisdiction of the Court or Tribunal. In D. N. Banerji Vs. P. R. Mukherjee 1953 SC 58 the Apex Court held: "Unless there was any grave miscarriage of justice or flagrant violation of law calling for intervention, it is not for the High Court under articles 226 and 227 7. A Constitution Bench of the Hon’ble Apex Court examined the scope of Article 227 of the Constitution in Waryam Singh and another Vs. Amarnath and another AIR 1954 SC 215 and observed that the power of superintendence conferred by Article 227 is to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors. Similarly in case Mohd. Yunus v. Mohd. Mustaqim and Ors. AIR 1984 SC 38 the Apex Court held that this Court has very limited scope under Article 227 of the Constitution and even the errors of law cannot be corrected in exercise of power of judicial review under Article 227 of the Constitution. The power can be used sparingly when it comes to the conclusion that the Authority/Tribunal has exceeded its jurisdiction or proceeded under erroneous presumption of jurisdiction. The High Court cannot assume unlimited prerogative to correct all species of hardship or wrong decision. For interference, there must be a case of flagrant abuse of fundamental principles of law or where order of the Tribunal, etc. has resulted in grave injustice. For interference under Article 227, the finding of facts recorded by the Authority should be found to be perverse or patently erroneous and de hors the factual and legal position on record. In this connection reference may be made to Nibaran Chandra Bag Vs. the State of Bihar & ors., AIR 1971 SC 746; Gujarat Steel Tubes Ltd. Vs. Gujarat Steel Tubes Mazdoor Sabha & ors., AIR 1980 SC 1896; & ors., (1997) 7 SCC 300; M/s. Pepsi Food Ltd. & Anr. Vs. Sub-Judicial Magistrate & ors., (1998) 5 SCC 749; and Virendra Kashinath Ravat & ors. Vs. Vinayak N. Joshi & ors. (1999) 1 SCC 47). 8. It is well settled that power under Article 227 is of the judicial superintendence, which cannot be used to up-set conclusions of facts, howsoever erroneous those may be, unless such conclusions are so perverse or so unreasonable that no Court could ever have reached them. (Chandra Bhushan Vs. Beni Prasad & ors., (1999) 1 SCC 70; Savitrabai Bhausaheb Kevate & ors. Vs. Raichand Dhanraj Lunja, (1999) 2 SCC 9. In Ajaib Singh Vs. Sirhind Co-opeative Marketing cum Processing Service Society Ltd., (1999) 6 SCC 82, the Hon'ble Apex Court has held that there is no justification for the High Court to substitute its view for the opinion of the Authorities/ Courts below as the same is not permissible in proceedings under Articles 226/227 of the Constitution. It must be remembered that jurisdiction of High Court under Article 227 of the Constitution is not appealable but supervisory. Therefore, it cannot interfere with the findings of fact recorded by Courts below unless there is no evidence to support findings or the findings are totally perverse. Workers' Union (2000) 4 SCC 245, the Court observed that it is impermissible for the Writ Court to re-appreciate evidence liberally and drawing conclusions on its own on pure questions of fact for the reason that it is not exercising appellate jurisdiction over the awards passed by Tribunal. The findings of fact recorded by the fact finding authority duly constituted for the purpose ordinarily should be considered to have become final. The same cannot be disturbed for the mere reason of having based on materials or evidence not sufficient or credible in the opinion of Writ Court to warrant those findings. At any rate, as long as they are based upon some material which are relevant for the purpose, no interference is called for. Even on the ground that there is yet another view which can reasonably and possibly be taken the High Court can not 11. In Union of India Vs. Rajendra Prabhu, (2001) 4 SCC 472, the Hon'ble Apex Court held that the High Court, in exercise of its extraordinary powers under Article 227 of the Constitution, cannot re- appreciate the evidence nor it can substitute its subjective opinion in place of the findings of Authorities below. 12. In Surya Dev Rai Vs. Ram Chander Rai and others (2003) 6 SCC 675, it was held that in exercise of supervisory power under Article 227, High Court can correct errors of jurisdiction committed by subordinate Courts. It also held that when subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or jurisdiction though available is being exercised in a manner not permitted by law and failure of justice or grave injustice has occasioned, the Court may step in to exercise its supervisory jurisdiction. However, it also said that be it a writ of certiorari or exercise of supervisory jurisdiction, none is available to correct mere errors of fact or law unless error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or disregard of the provisions of law; or, a grave injustice or gross failure of justice has occasioned 13. In case of Jasbir Singh Vs. State of Punjab (2006 ) 8 SCC 294, it was held that while invoking the provisions of Article 227 of the Constitution, it is provided that the High Court would exercise such powers most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority. The power of superintendence exercised over the subordinate courts and tribunals does not imply that the High Court can intervene in the judicial functions of the lower judiciary. The independence of the subordinate courts in the discharge of their judicial functions is of paramount importance, just as the independence of the superior courts in the discharge of their judicial 14. Thus, it is apparent that the power under article 227 of the Constitution is to be exercised sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority. This Power is not in the nature of power of appellate authority enabling re-appreciation of evidence. It should not alter the conclusion reached by the Competent Statutory Authority merely on the ground of insufficiency of evidence. As observed in Commandant, 22nd Battalion, CRPF and others Vs. Surinder Kumar (2011) 10 SCC 244, only in an extreme case, where on the face of it there is perversity or irrationality, there can be judicial review under Articles 226 or 227. 15. In the instant case the main argument of learned counsel for the petitioner is that in the above stated matter after investigation, charge 147/323/324/325/504/506/308 IPC and the court of Magistrate took cognizance for these offences but later on further investigation was conducted by order of Circle Officer and thereafter a report was submitted in the court that no offence under section 308 IPC is made out. It may be observed that once the Magistrate has taken cognizance for offences under section 147/323/324/325/504/506/308 IPC, it has no power to review its own order for dropping the section 308 IPC from the cognizance. Section 308 IPC is a Session triable case and petitioner would have opportunity before the Sessions Court at the time of charge to raise the plea that no offence under section 308 IPC is made out. The revisional Court has also considered the matter in correct perspective and revision was dismissed. After perusing the record, it can not be said that the impugned orders are against law or suffering from perversity. As observed earlier, in exercise of its extraordinary powers under Article 227 of the Constitution, this Court cannot re-appreciate the evidence nor it can substitute its subjective opinion in place of the findings of court below. It is impermissible for the Writ Court to re-appreciate evidence liberally and drawing conclusions on its own on pure questions of fact for the reason that it is not exercising appellate jurisdiction over the orders/awards passed by the Court or Tribunal. The findings of fact recorded by the fact finding authority duly constituted for the purpose ordinarily should be considered to have become final. In view of aforesaid, no case any interference in the impugned orders is made out. 16. Petition is dismissed. Interim order, if any, stands vacated.
The Allahabad High Court has stated that once a judge (Magistrate) has officially decided to consider charges for certain crimes, that judge cannot go back and remove any of those charges from their decision. The court, led by Justice Raj Beer Singh, made this observation while agreeing with a Magistrate's decision. The Magistrate had rejected a request from the accused person to remove one of the charges that had been officially recognized in the list of crimes. **The case in brief** First, a police report (FIR) was filed against the accused person for crimes under the Indian Penal Code (IPC) Sections 147, 323, 324, 504, and 506. During the police investigation, another serious charge, Section 308 IPC, was also added. After the investigation was finished, the police submitted a formal list of charges (a charge sheet) to the Chief Judicial Magistrate (C.J.M.) in Saharanpur. This list included all the mentioned crimes, and the Magistrate officially recognized these charges to move forward with the case. Later, the accused person asked the Magistrate to remove the Section 308 IPC charge, arguing there was not enough evidence for it. The Chief Judicial Magistrate (C.J.M.) in Saharanpur turned down this request. A higher court, the Sessions Judge, then reviewed this decision and agreed with the C.J.M. Because of this, the accused person then appealed to the High Court under Article 227 of the Constitution. He argued that the injuries caused to the victim were not dangerous to life. Therefore, he believed the C.J.M. should not have included the Section 308 IPC charge, along with the other charges. **Court's observations** The High Court explained that its power to re-examine decisions made by lower courts, when challenged in a special request (a writ petition) under Article 226/227 of the Constitution, is very limited. The Court referred to important past decisions from the Supreme Court that explain the limits of power under Article 227. It then stated: "...the power under Article 227 of the Constitution should be used rarely and only in suitable situations. This is to ensure that lower courts stay within their legal boundaries. This power does not mean the High Court can act like an appeals court, which would review all the evidence again. It should not change a decision made by a proper legal authority just because there might seem to be too little evidence." Applying these principles to the current case, the High Court stated that once the Magistrate had officially recognized the charges, including Section 308 IPC, the Magistrate could not then go back and remove that specific charge. The High Court also pointed out that cases involving Section 308 IPC must be heard in a Sessions Court. This means the accused person will have a chance later, during the formal charging process in the Sessions Court, to argue that there's no real crime under Section 308 IPC. The Court repeated that, given its special powers under Article 227, it cannot re-evaluate the evidence itself or replace the lower court's conclusions with its own opinions. With this, the High Court rejected the accused person's appeal.
Case :- CRIMINAL MISC. WRIT PETITION No. - 718 of 2006 Counsel for Respondent :- Govt. Advocate, Mohd. Aslam Ansari 1. Heard Sri Deepak Singh, Advocate holding brief of Sri Sumit Goyal, learned counsel for the petitioner and learned AGA for the State and perused the record. None has appeared on behalf of opposite party 2. This petition under Article 227 of Constitution of India has been preferred against the order dated 09.12.2005, passed by C.J.M., Saharanpur in criminal case no. 5664/2005 (State vs Ishwar & Others), under Section 147, 323, 324, 325, 308, 504 and 506 IPC, P.S. Gangoh, District Saharanpur, as well as against the order dated 24.12.2005, passed by the Court of Sessions Judge, Saharanpur in Misc. case no.284 of 2005 (Ishwar vs. State), pertaining to above stated case. 3. Perusal of record shows that the respondent no.2 has lodged first information report under Section 147, 323, 324, 504 and 506 IPC against petitioner and co-accused and that during investigation section 308 I.P.C. was also added. After investigation, police have submitted charge-sheet for the offences under Section 147, 323, 324, 325, 308, 504, 506 IPC in the court of C.J.M., Saharanpur and accordingly cognizance was taken. The accused persons moved an application alleging no case under Section 308 I.P.C. is made out, hence cognizance under section 308 I.P.C. be withdrawn. Said application was rejected vide impugned order dated 09.12.2005 passed by the C.J.M. Saharanpur. Against the order dated 09.12.2005, the accused persons have preferred a criminal revision, which was decided by the Sessions Judge, Saharanpur vide dated 24.12.2005 and the revision was dismissed. 4. It has been argued by learned counsel for the petitioner that the first information report was lodged for offences under Section 147, 323, 324, 504, 506 IPC and during investigation section 308 IPC was added. Later on the direction of Circle Officer, police have conducted further investigation and thereafter a supplementary report was preferred for offences under Section 147, 323, 324, 504 and 506 IPC with conclusion that none of the injury of injured was dangerous to life but despite that the C.J.M. Saharanpur has taken cognizance under Section 308 IPC, besides the other sections of IPC. The order passed by C.J.M. Saharanpur is thoroughly illegal and arbitrary and that in view of injury report of injured, no case under Section 308 IPC is made out. Learned counsel has referred injury report of injured Charan Singh and submitted that injury sustained by him is not dangerous to life. It has further been submitted that the revisional court also did not consider the matter in correct perspective and committed error by rejecting the revision filed by the petitioner and thus, both the impugned orders are liable to be set aside. 5. Learned AGA for State has submitted that there is no illegality or perversity in the impugned orders. As the charge-sheet was submitted for offences under Section 147, 323, 324, 325, 504, 506, 308 IPC and cognizance was taken and thus, that court was not competent to review its own order. Further, the petitioner has not placed the certified copy of injury report on record. However, it appears that injured has sustained several fractures and other injuries at vital parts of his body and that it cannot be said that Section 308 IPC is not made out. It was also stated that it is a session triable case and thus, the Magistrate is not competent to drop any section and that petitioner may raise his grievances before the court of Sessions at the stage of charge. Learned AGA submits that there is no illegality or perversity in the impugned orders. 6. It is well settled that scope of judicial review in such matters where the orders of Courts below are assailed before this Court in a writ petition under Article 226/227 of the Constitution is very limited. This power involves a duty on the High Court to keep the inferior courts and tribunals within the bounds of their authority and to see that they do what their duty requires and that they do it in a legal manner. The power under article 227 of the Constitution does not vest the High Court with any unlimited prerogative to correct all species of hardship or wrong decisions made within the limits of the jurisdiction of the Court or Tribunal. In D. N. Banerji Vs. P. R. Mukherjee 1953 SC 58 the Apex Court held: "Unless there was any grave miscarriage of justice or flagrant violation of law calling for intervention, it is not for the High Court under articles 226 and 227 7. A Constitution Bench of the Hon’ble Apex Court examined the scope of Article 227 of the Constitution in Waryam Singh and another Vs. Amarnath and another AIR 1954 SC 215 and observed that the power of superintendence conferred by Article 227 is to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors. Similarly in case Mohd. Yunus v. Mohd. Mustaqim and Ors. AIR 1984 SC 38 the Apex Court held that this Court has very limited scope under Article 227 of the Constitution and even the errors of law cannot be corrected in exercise of power of judicial review under Article 227 of the Constitution. The power can be used sparingly when it comes to the conclusion that the Authority/Tribunal has exceeded its jurisdiction or proceeded under erroneous presumption of jurisdiction. The High Court cannot assume unlimited prerogative to correct all species of hardship or wrong decision. For interference, there must be a case of flagrant abuse of fundamental principles of law or where order of the Tribunal, etc. has resulted in grave injustice. For interference under Article 227, the finding of facts recorded by the Authority should be found to be perverse or patently erroneous and de hors the factual and legal position on record. In this connection reference may be made to Nibaran Chandra Bag Vs. the State of Bihar & ors., AIR 1971 SC 746; Gujarat Steel Tubes Ltd. Vs. Gujarat Steel Tubes Mazdoor Sabha & ors., AIR 1980 SC 1896; & ors., (1997) 7 SCC 300; M/s. Pepsi Food Ltd. & Anr. Vs. Sub-Judicial Magistrate & ors., (1998) 5 SCC 749; and Virendra Kashinath Ravat & ors. Vs. Vinayak N. Joshi & ors. (1999) 1 SCC 47). 8. It is well settled that power under Article 227 is of the judicial superintendence, which cannot be used to up-set conclusions of facts, howsoever erroneous those may be, unless such conclusions are so perverse or so unreasonable that no Court could ever have reached them. (Chandra Bhushan Vs. Beni Prasad & ors., (1999) 1 SCC 70; Savitrabai Bhausaheb Kevate & ors. Vs. Raichand Dhanraj Lunja, (1999) 2 SCC 9. In Ajaib Singh Vs. Sirhind Co-opeative Marketing cum Processing Service Society Ltd., (1999) 6 SCC 82, the Hon'ble Apex Court has held that there is no justification for the High Court to substitute its view for the opinion of the Authorities/ Courts below as the same is not permissible in proceedings under Articles 226/227 of the Constitution. It must be remembered that jurisdiction of High Court under Article 227 of the Constitution is not appealable but supervisory. Therefore, it cannot interfere with the findings of fact recorded by Courts below unless there is no evidence to support findings or the findings are totally perverse. Workers' Union (2000) 4 SCC 245, the Court observed that it is impermissible for the Writ Court to re-appreciate evidence liberally and drawing conclusions on its own on pure questions of fact for the reason that it is not exercising appellate jurisdiction over the awards passed by Tribunal. The findings of fact recorded by the fact finding authority duly constituted for the purpose ordinarily should be considered to have become final. The same cannot be disturbed for the mere reason of having based on materials or evidence not sufficient or credible in the opinion of Writ Court to warrant those findings. At any rate, as long as they are based upon some material which are relevant for the purpose, no interference is called for. Even on the ground that there is yet another view which can reasonably and possibly be taken the High Court can not 11. In Union of India Vs. Rajendra Prabhu, (2001) 4 SCC 472, the Hon'ble Apex Court held that the High Court, in exercise of its extraordinary powers under Article 227 of the Constitution, cannot re- appreciate the evidence nor it can substitute its subjective opinion in place of the findings of Authorities below. 12. In Surya Dev Rai Vs. Ram Chander Rai and others (2003) 6 SCC 675, it was held that in exercise of supervisory power under Article 227, High Court can correct errors of jurisdiction committed by subordinate Courts. It also held that when subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or jurisdiction though available is being exercised in a manner not permitted by law and failure of justice or grave injustice has occasioned, the Court may step in to exercise its supervisory jurisdiction. However, it also said that be it a writ of certiorari or exercise of supervisory jurisdiction, none is available to correct mere errors of fact or law unless error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or disregard of the provisions of law; or, a grave injustice or gross failure of justice has occasioned 13. In case of Jasbir Singh Vs. State of Punjab (2006 ) 8 SCC 294, it was held that while invoking the provisions of Article 227 of the Constitution, it is provided that the High Court would exercise such powers most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority. The power of superintendence exercised over the subordinate courts and tribunals does not imply that the High Court can intervene in the judicial functions of the lower judiciary. The independence of the subordinate courts in the discharge of their judicial functions is of paramount importance, just as the independence of the superior courts in the discharge of their judicial 14. Thus, it is apparent that the power under article 227 of the Constitution is to be exercised sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority. This Power is not in the nature of power of appellate authority enabling re-appreciation of evidence. It should not alter the conclusion reached by the Competent Statutory Authority merely on the ground of insufficiency of evidence. As observed in Commandant, 22nd Battalion, CRPF and others Vs. Surinder Kumar (2011) 10 SCC 244, only in an extreme case, where on the face of it there is perversity or irrationality, there can be judicial review under Articles 226 or 227. 15. In the instant case the main argument of learned counsel for the petitioner is that in the above stated matter after investigation, charge 147/323/324/325/504/506/308 IPC and the court of Magistrate took cognizance for these offences but later on further investigation was conducted by order of Circle Officer and thereafter a report was submitted in the court that no offence under section 308 IPC is made out. It may be observed that once the Magistrate has taken cognizance for offences under section 147/323/324/325/504/506/308 IPC, it has no power to review its own order for dropping the section 308 IPC from the cognizance. Section 308 IPC is a Session triable case and petitioner would have opportunity before the Sessions Court at the time of charge to raise the plea that no offence under section 308 IPC is made out. The revisional Court has also considered the matter in correct perspective and revision was dismissed. After perusing the record, it can not be said that the impugned orders are against law or suffering from perversity. As observed earlier, in exercise of its extraordinary powers under Article 227 of the Constitution, this Court cannot re-appreciate the evidence nor it can substitute its subjective opinion in place of the findings of court below. It is impermissible for the Writ Court to re-appreciate evidence liberally and drawing conclusions on its own on pure questions of fact for the reason that it is not exercising appellate jurisdiction over the orders/awards passed by the Court or Tribunal. The findings of fact recorded by the fact finding authority duly constituted for the purpose ordinarily should be considered to have become final. In view of aforesaid, no case any interference in the impugned orders is made out. 16. Petition is dismissed. Interim order, if any, stands vacated.
The Allahabad High Court has stated that once a judge (Magistrate) has officially decided to consider charges for certain crimes, that judge cannot go back and remove any of those charges from their decision. The court, led by Justice Raj Beer Singh, made this observation while agreeing with a Magistrate's decision. The Magistrate had rejected a request from the accused person to remove one of the charges that had been officially recognized in the list of crimes. **The case in brief** First, a police report (FIR) was filed against the accused person for crimes under the Indian Penal Code (IPC) Sections 147, 323, 324, 504, and 506. During the police investigation, another serious charge, Section 308 IPC, was also added. After the investigation was finished, the police submitted a formal list of charges (a charge sheet) to the Chief Judicial Magistrate (C.J.M.) in Saharanpur. This list included all the mentioned crimes, and the Magistrate officially recognized these charges to move forward with the case. Later, the accused person asked the Magistrate to remove the Section 308 IPC charge, arguing there was not enough evidence for it. The Chief Judicial Magistrate (C.J.M.) in Saharanpur turned down this request. A higher court, the Sessions Judge, then reviewed this decision and agreed with the C.J.M. Because of this, the accused person then appealed to the High Court under Article 227 of the Constitution. He argued that the injuries caused to the victim were not dangerous to life. Therefore, he believed the C.J.M. should not have included the Section 308 IPC charge, along with the other charges. **Court's observations** The High Court explained that its power to re-examine decisions made by lower courts, when challenged in a special request (a writ petition) under Article 226/227 of the Constitution, is very limited. The Court referred to important past decisions from the Supreme Court that explain the limits of power under Article 227. It then stated: "...the power under Article 227 of the Constitution should be used rarely and only in suitable situations. This is to ensure that lower courts stay within their legal boundaries. This power does not mean the High Court can act like an appeals court, which would review all the evidence again. It should not change a decision made by a proper legal authority just because there might seem to be too little evidence." Applying these principles to the current case, the High Court stated that once the Magistrate had officially recognized the charges, including Section 308 IPC, the Magistrate could not then go back and remove that specific charge. The High Court also pointed out that cases involving Section 308 IPC must be heard in a Sessions Court. This means the accused person will have a chance later, during the formal charging process in the Sessions Court, to argue that there's no real crime under Section 308 IPC. The Court repeated that, given its special powers under Article 227, it cannot re-evaluate the evidence itself or replace the lower court's conclusions with its own opinions. With this, the High Court rejected the accused person's appeal.
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Heard learned counsel for the applicant and learned A.G.A. for the State. The applicant by means of this application under Section 482 Cr.P.C. has invoked the inherent jurisdiction of this Court with a prayer to quash the order dated 30.11.2021 passed by the Principal Judge, Family Court, Kasganj in Case No. 118 of 2020 (Smt. Kaushalya @ Kaushal vs. Vipin Kumar), under Section 128 Cr.P.C., P.S. Kasganj, district-Kasganj. A further prayer is that a direction be issued to the court below to release the applicant from jail forthwith. It is submitted by learned counsel for the applicant that marriage between applicant and opposite party no. 2 was solemnized on 8th December, 2010. Out of the aforesaid wedlock, a baby girl was born. However, after some time, the relationship between the husband and wife became strained and incompatible. Thereafter the opposite party no. 2 has initiated several litigations against the applicant. In connection with the same, she along with her daughter filed an application under Section 125 Cr.P.C. before the Family Court, Kasganj, which was allowed by the Principal Judge, Family Court, Kasganj vide judgment and order dated 30.11.2021. It is also submitted that the applicant is a handicapped person, certificate whereof has been filed as Annexure-2 to the affidavit accompanying the application. Due to the reason he failed to comply with the order passed under Section 125(3) Cr.P.C. and the learned court below has issued the recovery warrant dated 8.10.2021, directing that the applicant shall pay a sum of Rs. 1,65,000/- (Rs. one lac sixty five thousand) to the opposite party no. 2 as maintenance w.e.f. 30.7.2017 to 19.1.2020 and in pursuance of recovery warrant the applicant was sent to jail. On 30.11.2021 the applicant was summoned by the court below and he was produced by the jail authority before the court blow and the court below had passed the order, while detaining the applicant in jail for a period of one month and directed that during detention, the applicant shall pay a sum of Rs. 5,000/- per month to opposite party no. 2, fixing next date, i.e. 2012.2021, directing the Jail Superintendent to produce the applicant again on the next date fixed. It is also submitted by learned counsel for the applicant that provisions of Section 125(3) Cr.P.C. specifically provides for issuance of a warrant for lavying the amount issued in the manner provided for lavying of fines. The learned court below has passed the order dated 30.11.2021 for detention of applicant in jail for one month without complying the provision contained in Section 125(3) Cr.P.C. and without imposing any fine, hence the impugned order dated 30.11.2021 is liable to be quashed. In support of his submissions, learned counsel for the applicant has placed reliance upon the following judgments of Gauhati High Court, Calcutta High Court and Punjab & Haryana High Court: 1. Hazi Abdul Khaleque vs. Mustt. Samsun Nehar, 1991 CriLJ, 1843; 2. Dipankar Banerjee vs. Tanuja Banerjee reported in 1998 CriLJ 907; and 3. Om Prakash @ Parkash vs. Vidya Devi reported in 1992 CrlLJ 658. Per contra, learned A.G.A. for the State has opposed the submissions made by the learned counsel for the applicant by contending that that the applicant is a defaulter and has not paid any amount as awarded by the Family Court under order dated 30.7.2017 to opposite party no. as interim allowance. Therefore, the Family Court has rightly issued recovery warrant against the applicant for realization of the amount so due and there is no error in the order impugned. I have considered the submissions made by the learned counsel for the parties and have gone through the record. Before coming to the merits of the present case, it would be worthwhile to reproduce Sections 125 (3) and 421 Cr.P.C., which read as follows: "125. Order for maintenance of wives, children and parents. If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month' s allowances remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made. (1) When an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may- (a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender; (b) issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter: Provided that, if the sentence directs that in default of payment of the fine, the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless, for special reasons to be recorded in writing, it considers it necessary so to do, or unless it has made an order for the payment of expenses or compensation out of the fine under section 357. The State Government may make rules regulating the manner In which warrants under clause (a) of sub- section (1) are to be executed, and for the summary determination of any claims made by any person other than the offender in respect of any property attached in execution of such warrant. Where the Court issues a warrant to the Collector under clause (b) of sub- section (1), the Collector shall realise the amount in accordance with the law relating to recovery of arrears of land revenue, as if such warrant were a certificate issued under such law: Provided that no such warrant shall be executed by the arrest or detention in prison of the offender." On a plain reading of sub-section (3) of Section 125 Cr.P.C., it is apparently clear that in the event of any failure on the part of any person to comply with an order to pay maintenance allowance, without sufficient cause, the Magistrate is empowered to issue warrant for levying the amount due in manner provided for levying of fines for every breach of the order. Section 421Cr.P.C. prescribes the manner for levying fine and clause (a) of sub-Section (1) of Section 421 provides for issuance of warrant for levy of the amount by attachment and sale of any movable property belonging to the offender. In other words, in the event of any failure without sufficient cause to comply with the order for maintenance allowance, the Magistrate is empowered to issue distress warrant for the purpose of realization of the amount, in respect of which default has been made, by attachment and sale of any movable property, that may seized in execution of such warrant. Sub-section (3) of Section 125 Cr.P.C. makes it further clear that the jurisdiction of the Magistrate for sentencing such person to imprisonment would arise only after the maintenance allowance, in whole or in part, remains unpaid after the maintenance allowance, in warrant. It is only after the sentence of imprisonment is awarded by the Magistrate under sub-section (3) of Section 125 that the occasion may arise for issuance of warrant of arrest for bringing the person concerned to Court for his committal to prison to serve out the sentence. It is further apparent that the Magistrate has no jurisdiction to issue warrant of arrest straight way against the person liable for payment of maintenance allowance in the event of non-payment of maintenance allowance within the time fixed by the court without first levying the amount due as fine and without making any attempt for reaslization that fine in one or both the modes for recovery of that fine as provided for in clauses (a) or (b) of sub-Section (1) of Section 421 Cr.P.C. say by issuance of distress warrant for attachment and sale of movable property belonging to the defaulter as contemplated under Section 421 (1) (a) and without first sentencing the defaulter to imprisonment after the execution of the distress warrant. In view of aforesaid, this Court finds that the Principal Judge, Family Court, Kasganj has not followed the establish procedure for issuance of recovery warrant in default of payment of arrears maintenance allowance within the time allowed by him in the execution case concerned. The order directing issuance of warrant of arrest is patently illegal and not warranted by law. Order dated 30.11.2021 is hereby set aside. Let the Principal Judge pass a fresh order in the aforesaid execution cases filed by opposite party no.2 in light of the observations made herein above. Subject to the observations made above, the present petition is allowed. Digitally signed by FAREEDUL
The Allahabad High Court recently said that if someone doesn't follow a court order to pay money for support (maintenance), the court should first issue an order to collect that money as a fine. This process is laid out in Section 421 of the CrPC, which explains how to get the money. Justice Ajit Singh's court added that if someone doesn't pay maintenance, a judge (Magistrate) cannot immediately order their arrest. Instead, the judge must first try to collect the money as a fine, following Section 421 of the CrPC. The case in brief In this case, a wife and her daughter asked the Family Court in Kasganj for financial support (maintenance) from her husband. They used a specific legal rule (Section 125 Cr.P.C.). The court agreed to their request. However, the husband, who is handicapped, did not follow this order. So, the court issued a "recovery warrant," which is an order to get the money. This warrant told him to pay Rs. 1,65,000 to his wife and daughter for maintenance from July 30, 2017, to January 19, 2020. Because he didn't pay, he was sent to jail on November 30, 2021, based on this warrant. The husband then went to the High Court to challenge this order from the Family Court. He filed a petition under Section 482 of the CrPC. His lawyer told the High Court that Section 125(3) of the CrPC clearly states that if someone doesn't pay maintenance, the court should issue an order to collect the money as a fine. The steps for collecting fines are explained in Section 421 of the CrPC. The lawyer also argued that the lower court had sent the husband to jail for a month on November 30, 2021. This was done without following Section 125(3) Cr.P.C. and without first trying to collect the money as a fine. Therefore, the lawyer argued that the order to send him to jail should be canceled. Court's observations and order The High Court first noted that Section 125(3) of the CrPC says that if someone fails to pay maintenance without a good reason, the judge (Magistrate) has the power to issue an order to collect the unpaid amount as if it were a fine. This applies every time the order is broken. The Court also pointed out that Section 421 of the CrPC explains how to collect these fines. Specifically, Section 421(1)(a) says that an order can be issued to seize and sell any movable property (like cars or jewelry) that belongs to the person who owes the money, in order to get the amount due. To be clear, the Court explained that if someone fails to pay maintenance without a good reason, the judge can issue a "distress warrant." This is an order to seize and sell their movable property to collect the unpaid maintenance, following the rules in Section 421 of the CrPC. Against this background, the Court clearly stated that a judge (Magistrate) does not have the power to immediately issue an arrest warrant against someone who owes maintenance and hasn't paid on time. The judge must first try to collect the overdue amount as a fine. This involves making an effort to recover that fine using the ways shown in Section 421(1) of the CrPC, such as issuing a distress warrant to seize and sell the movable property of the person who owes money, as Section 421(1)(a) explains. Only *after* that distress warrant has been carried out can the judge then sentence the person to jail. Because of all these points, the High Court decided that the Family Court judge in Kasganj had not followed the correct legal steps when issuing the recovery warrant for unpaid maintenance. Therefore, the High Court canceled the Family Court's order.
Heard learned counsel for the applicant and learned A.G.A. for the State. The applicant by means of this application under Section 482 Cr.P.C. has invoked the inherent jurisdiction of this Court with a prayer to quash the order dated 30.11.2021 passed by the Principal Judge, Family Court, Kasganj in Case No. 118 of 2020 (Smt. Kaushalya @ Kaushal vs. Vipin Kumar), under Section 128 Cr.P.C., P.S. Kasganj, district-Kasganj. A further prayer is that a direction be issued to the court below to release the applicant from jail forthwith. It is submitted by learned counsel for the applicant that marriage between applicant and opposite party no. 2 was solemnized on 8th December, 2010. Out of the aforesaid wedlock, a baby girl was born. However, after some time, the relationship between the husband and wife became strained and incompatible. Thereafter the opposite party no. 2 has initiated several litigations against the applicant. In connection with the same, she along with her daughter filed an application under Section 125 Cr.P.C. before the Family Court, Kasganj, which was allowed by the Principal Judge, Family Court, Kasganj vide judgment and order dated 30.11.2021. It is also submitted that the applicant is a handicapped person, certificate whereof has been filed as Annexure-2 to the affidavit accompanying the application. Due to the reason he failed to comply with the order passed under Section 125(3) Cr.P.C. and the learned court below has issued the recovery warrant dated 8.10.2021, directing that the applicant shall pay a sum of Rs. 1,65,000/- (Rs. one lac sixty five thousand) to the opposite party no. 2 as maintenance w.e.f. 30.7.2017 to 19.1.2020 and in pursuance of recovery warrant the applicant was sent to jail. On 30.11.2021 the applicant was summoned by the court below and he was produced by the jail authority before the court blow and the court below had passed the order, while detaining the applicant in jail for a period of one month and directed that during detention, the applicant shall pay a sum of Rs. 5,000/- per month to opposite party no. 2, fixing next date, i.e. 2012.2021, directing the Jail Superintendent to produce the applicant again on the next date fixed. It is also submitted by learned counsel for the applicant that provisions of Section 125(3) Cr.P.C. specifically provides for issuance of a warrant for lavying the amount issued in the manner provided for lavying of fines. The learned court below has passed the order dated 30.11.2021 for detention of applicant in jail for one month without complying the provision contained in Section 125(3) Cr.P.C. and without imposing any fine, hence the impugned order dated 30.11.2021 is liable to be quashed. In support of his submissions, learned counsel for the applicant has placed reliance upon the following judgments of Gauhati High Court, Calcutta High Court and Punjab & Haryana High Court: 1. Hazi Abdul Khaleque vs. Mustt. Samsun Nehar, 1991 CriLJ, 1843; 2. Dipankar Banerjee vs. Tanuja Banerjee reported in 1998 CriLJ 907; and 3. Om Prakash @ Parkash vs. Vidya Devi reported in 1992 CrlLJ 658. Per contra, learned A.G.A. for the State has opposed the submissions made by the learned counsel for the applicant by contending that that the applicant is a defaulter and has not paid any amount as awarded by the Family Court under order dated 30.7.2017 to opposite party no. as interim allowance. Therefore, the Family Court has rightly issued recovery warrant against the applicant for realization of the amount so due and there is no error in the order impugned. I have considered the submissions made by the learned counsel for the parties and have gone through the record. Before coming to the merits of the present case, it would be worthwhile to reproduce Sections 125 (3) and 421 Cr.P.C., which read as follows: "125. Order for maintenance of wives, children and parents. If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month' s allowances remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made. (1) When an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may- (a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender; (b) issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter: Provided that, if the sentence directs that in default of payment of the fine, the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless, for special reasons to be recorded in writing, it considers it necessary so to do, or unless it has made an order for the payment of expenses or compensation out of the fine under section 357. The State Government may make rules regulating the manner In which warrants under clause (a) of sub- section (1) are to be executed, and for the summary determination of any claims made by any person other than the offender in respect of any property attached in execution of such warrant. Where the Court issues a warrant to the Collector under clause (b) of sub- section (1), the Collector shall realise the amount in accordance with the law relating to recovery of arrears of land revenue, as if such warrant were a certificate issued under such law: Provided that no such warrant shall be executed by the arrest or detention in prison of the offender." On a plain reading of sub-section (3) of Section 125 Cr.P.C., it is apparently clear that in the event of any failure on the part of any person to comply with an order to pay maintenance allowance, without sufficient cause, the Magistrate is empowered to issue warrant for levying the amount due in manner provided for levying of fines for every breach of the order. Section 421Cr.P.C. prescribes the manner for levying fine and clause (a) of sub-Section (1) of Section 421 provides for issuance of warrant for levy of the amount by attachment and sale of any movable property belonging to the offender. In other words, in the event of any failure without sufficient cause to comply with the order for maintenance allowance, the Magistrate is empowered to issue distress warrant for the purpose of realization of the amount, in respect of which default has been made, by attachment and sale of any movable property, that may seized in execution of such warrant. Sub-section (3) of Section 125 Cr.P.C. makes it further clear that the jurisdiction of the Magistrate for sentencing such person to imprisonment would arise only after the maintenance allowance, in whole or in part, remains unpaid after the maintenance allowance, in warrant. It is only after the sentence of imprisonment is awarded by the Magistrate under sub-section (3) of Section 125 that the occasion may arise for issuance of warrant of arrest for bringing the person concerned to Court for his committal to prison to serve out the sentence. It is further apparent that the Magistrate has no jurisdiction to issue warrant of arrest straight way against the person liable for payment of maintenance allowance in the event of non-payment of maintenance allowance within the time fixed by the court without first levying the amount due as fine and without making any attempt for reaslization that fine in one or both the modes for recovery of that fine as provided for in clauses (a) or (b) of sub-Section (1) of Section 421 Cr.P.C. say by issuance of distress warrant for attachment and sale of movable property belonging to the defaulter as contemplated under Section 421 (1) (a) and without first sentencing the defaulter to imprisonment after the execution of the distress warrant. In view of aforesaid, this Court finds that the Principal Judge, Family Court, Kasganj has not followed the establish procedure for issuance of recovery warrant in default of payment of arrears maintenance allowance within the time allowed by him in the execution case concerned. The order directing issuance of warrant of arrest is patently illegal and not warranted by law. Order dated 30.11.2021 is hereby set aside. Let the Principal Judge pass a fresh order in the aforesaid execution cases filed by opposite party no.2 in light of the observations made herein above. Subject to the observations made above, the present petition is allowed. Digitally signed by FAREEDUL
The Allahabad High Court recently said that if someone doesn't follow a court order to pay money for support (maintenance), the court should first issue an order to collect that money as a fine. This process is laid out in Section 421 of the CrPC, which explains how to get the money. Justice Ajit Singh's court added that if someone doesn't pay maintenance, a judge (Magistrate) cannot immediately order their arrest. Instead, the judge must first try to collect the money as a fine, following Section 421 of the CrPC. The case in brief In this case, a wife and her daughter asked the Family Court in Kasganj for financial support (maintenance) from her husband. They used a specific legal rule (Section 125 Cr.P.C.). The court agreed to their request. However, the husband, who is handicapped, did not follow this order. So, the court issued a "recovery warrant," which is an order to get the money. This warrant told him to pay Rs. 1,65,000 to his wife and daughter for maintenance from July 30, 2017, to January 19, 2020. Because he didn't pay, he was sent to jail on November 30, 2021, based on this warrant. The husband then went to the High Court to challenge this order from the Family Court. He filed a petition under Section 482 of the CrPC. His lawyer told the High Court that Section 125(3) of the CrPC clearly states that if someone doesn't pay maintenance, the court should issue an order to collect the money as a fine. The steps for collecting fines are explained in Section 421 of the CrPC. The lawyer also argued that the lower court had sent the husband to jail for a month on November 30, 2021. This was done without following Section 125(3) Cr.P.C. and without first trying to collect the money as a fine. Therefore, the lawyer argued that the order to send him to jail should be canceled. Court's observations and order The High Court first noted that Section 125(3) of the CrPC says that if someone fails to pay maintenance without a good reason, the judge (Magistrate) has the power to issue an order to collect the unpaid amount as if it were a fine. This applies every time the order is broken. The Court also pointed out that Section 421 of the CrPC explains how to collect these fines. Specifically, Section 421(1)(a) says that an order can be issued to seize and sell any movable property (like cars or jewelry) that belongs to the person who owes the money, in order to get the amount due. To be clear, the Court explained that if someone fails to pay maintenance without a good reason, the judge can issue a "distress warrant." This is an order to seize and sell their movable property to collect the unpaid maintenance, following the rules in Section 421 of the CrPC. Against this background, the Court clearly stated that a judge (Magistrate) does not have the power to immediately issue an arrest warrant against someone who owes maintenance and hasn't paid on time. The judge must first try to collect the overdue amount as a fine. This involves making an effort to recover that fine using the ways shown in Section 421(1) of the CrPC, such as issuing a distress warrant to seize and sell the movable property of the person who owes money, as Section 421(1)(a) explains. Only *after* that distress warrant has been carried out can the judge then sentence the person to jail. Because of all these points, the High Court decided that the Family Court judge in Kasganj had not followed the correct legal steps when issuing the recovery warrant for unpaid maintenance. Therefore, the High Court canceled the Family Court's order.
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G.S.R 730(E). — In exercise of the powers conferred by section 6 of the Medical Termination of Pregnancy Act, 1971 (34 of 1971), the Central Government hereby makes the following rules to amend the Medical Termination of 1. (1) These rules may be called the Medical Termination of Pregnancy (Amendment) Rules, 2021. (2) They shall come into force on the date of their publication in the Official Gazette. 2. In the Medical Termination of Pregnancy Rules, 2003 (herein after referred to as the said rules), in rule 2, after sub- rule (e), the following sub-rule shall be inserted, namely:- ‘(f) “Medical Board” means the Medical Board constituted under sub-section (2C) of section 3 of the Act.’. 3. After rule 3 of the said rules, the following rules shall be inserted, namely:- “ 3A. Powers and functions of Medical Board.—For the purposes of section 3,— (a) the powers of the Medical Board shall be the following, namely:- (i) to allow or deny termination of pregnancy beyond twenty-four weeks of gestation period under sub-section (2B) of the said section only after due consideration and ensuring that the procedure would be safe for the woman at that gestation age and whether the foetal malformation has substantial risk of it being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously (ii) co-opt other specialists in the Board and ask for any additional investigations if required, for deciding on the (b) the functions of the Medical Board shall be the following, namely :- (i) to examine the woman and her reports, who may approach for medical termination of pregnancy under sub- (ii) provide the opinion of Medical Board in Form D with regard to the termination of pregnancy or rejection of request for termination within three days of receiving the request for medical termination of pregnancy under (iii) to ensure that the termination procedure, when advised by the Medical Board, is carried out with all safety precautions along with appropriate counselling within five days of the receipt of the request for medical termination of pregnancy under sub-section (2B) of section 3. 3B. Women eligible for termination of pregnancy up to twenty-four weeks.— The following categories of women shall be considered eligible for termination of pregnancy under clause (b) of sub- section (2) Section 3 of the Act, for a period of up to twenty-four weeks, namely:- (c) change of marital status during the ongoing pregnancy (widowhood and divorce); (d) women with physical disabilities [major disability as per criteria laid down under the Rights of Persons with (e) mentally ill women including mental retardation; (f) the foetal malformation that has substantial risk of being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped; and (g) women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the Government.” . (a) in clause (c), in sub-clause (ii), for the words “twenty- weeks”, the words “twenty – four weeks” shall be (b) after clause (c), the following clause shall be inserted, namely:- “(ca) A Registered Medical Practitioner shall have the following experience and training for conducting termination of pregnancy upto nine weeks of gestation period by medical methods of abortion, namely:- (i) experience at any hospital for a period of not less than three months in the practice of obstetrics and (ii) has independently performed ten cases of pregnancy termination by medical methods of abortion under the supervision of a Registered Medical Practitioner in a hospital established or maintained, or a training institute approved for this purpose, by the Government.”. 5. After rule 4 of the said rules, the following rule shall be inserted, namely:- “4A. (1) For the purposes of sub-section (2A) of section 3 of the Act, the opinion of Registered Medical Practitioner which is required for termination of pregnancy at different gestation ages shall be the following, namely:- (a) till nine weeks of gestation period, by Medical Methods of Abortion: Registered Medical Practitioner eligible (b) till twelve weeks of gestation period, by surgical method: Registered Medical Practitioner eligible under clauses (a), (b), (c) and (d) of rule 4; (c) beyond twelve weeks till twenty weeks of gestation period: Registered Medical Practitioner (2) For the purposes of sub-section (2A) of section 3 of the Act, the opinion of two Registered Medical Practitioners eligible under clauses (a), (b) and (d) of rule 4, which is required for termination of pregnancy beyond twenty weeks till twenty-four weeks of gestation period, shall be in Form E. (3) For the purposes of sub-secion (2B) of section 3, the opinion for medical termination of pregnancy beyond twenty-four weeks gestation period: Shall be given by a Medical Board duly constituted by the respective State Government or Union territory Administration at approved facilities and two Registered Medical Practitioners eligible under clauses (a), (b) and (d) of rule 4, shall perform the termination of pregnancy based on the decision of such Medical Board.”. 6. In rule 5 of the said rules, in sub-rule (1), in clause (ii),— (A) for the figures and word “20 weeks”, the words “twenty-four weeks” shall be substituted; (B) for the words “for transportation; and”, the words “for transportation;” shall be substituted; (C) for the words “Government for India from time to time.”, the words “the Central Government from time to time; (D) after sub-clause (c), the following shall be inserted, namely:- “in case of termination beyond twenty-four weeks of pregnancy:- (a) an operation table and instruments for performing abdominal or gynaecological surgery; (b) anaesthetic equipment, resuscitation equipment and sterilisation equipment; (c) availability of drugs, parental fluids and blood for emergency use, as may be notified by the Central (d) facilities for procedure under ultrasound guidance.”. (E) in the Explanation, for the words “seven weeks”, the words “nine weeks” shall be substituted. 7. For Form A of the said rules, the following Form shall be substituted, namely:- (B) Pregnancy can be terminated upto twenty-four weeks (iii) Non-Government or Private or Nursing Home or Other Institutions: (iv) State, if the following facilities are available at the place: (i) Gynaecological examination or labour table. (ii) Resuscitation equipment. (iv) Facilities for treatment of shock, including emergency drugs. (v) Facilities for transportations, if required. (i) An operation table and instruments for performing abdominal or gynaecological surgery. (ii) Drugs and parental fluids in sufficient supply for emergency cases. (iii) Anaesthetic equipment, resuscitation equipment and sterilization equipment. Date: Signature of the owner for the place.”. 8. After Form C of the said rule, the following Forms shall be inserted, namely:- Report of the Medical Board for Pregnancy Termination Beyond 24 weeks Details of the woman seeking termination of pregnancy: 6. Opinion by Medical Board for termination of pregnancy: 7. Physical fitness of the woman for the termination of pregnancy: Members of the Medical Board who reviewed the case: Date and Time:…………. Opinion Form of Registered Medical Practitioners (For gestation age beyond twenty weeks till twenty-four weeks) (Name and qualifications of the Registered Medical Practitioner in block letters) (Full address of the Registered Medical Practitioner) (Name and qualifications of the Registered Medical Practitioner in block letters) (Full address of the Registered Medical Practitioner) hereby certify that we are of opinion, formed in good faith, that it is necessary to terminate the pregnancy of resident of_________________________________________________________________________________ which is beyond twenty weeks but till twenty-four weeks under special circumstances as given below*. *Specify the circumstance(s) from (a) to (g) appropriate for termination of pregnancy beyond twenty weeks till (c) Change of marital status during the ongoing pregnancy (widowhood and divorce) (d) Women with physical disabilities [major disability as per criteria laid down under the Rights of Persons with (e) Mentally ill women including mental retardation (f) The foetal malformation that has substantial risk of being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped (g) Women with pregnancy in humanitarian settings or disaster or emergency situations as declared by We hear by give intimation that we terminated the pregnancy of the woman referred to above who bears the Serial No. ______________________ in the Admission Register of the hospital / approved place. Signature of the Registered Medical Practitioner Signature of the Registered Medical Practitioner Note: Account may be taken of the pregnant woman’s actual or reasonably foreseeable environment in determining whether the continuance of her pregnancy would involve a grave injury to her physical or mental health. “. Note:- The Medical Termination of Pregnancy Rules, 2003 were published in the Gazette of India, Extraordinary, Part II, section 3, sub-section (i) vide notification number G.S.R. 485(E), dated the 13 th June, 2003. Uploaded by Dte. of Printing at Government of India Press, Ring Road, Mayapuri, New Delhi-110064 and Published by the Controller of Publications, Delhi-110054. MANOJ
The Central Government announced new rules on October 12th. These rules change the time limit for ending a pregnancy, known as abortion, from 20 weeks to 24 weeks. This longer time limit applies only to certain groups of women. These new rules are based on Section 6 of the Medical Termination of Pregnancy Act. It's important to know that the main law that changed these rules, called the Medical Termination of Pregnancy (Amendment) Act, 2021, officially started on September 24th, 2021. Upper Limits For Medical Termination Of Pregnancy Extended To 24 Weeks: MTP Act Amendment Comes Into Force This change in the law, or "amendment," specifically updated Section 3 of the Medical Termination of Pregnancy Act. It moved the maximum time limit for an abortion from 20 weeks to 24 weeks. This longer period is only for specific types of women, which are now listed in the MTP Rules announced on October 12th. The new Medical Termination of Pregnancy (Amendment) Rules, 2021, explain which groups of women can have an abortion up to 24 weeks. These groups are eligible under a specific part of Section 3 of the Act. They include: women who have survived sexual assault, rape, or incest; girls who are minors; women whose marital status changed during their pregnancy, such as becoming a widow or getting divorced; women with significant physical disabilities as defined by another law; women with mental health issues, including intellectual disabilities; cases where the unborn baby has a serious defect that means it likely won't survive or would be severely disabled if born; and women who are pregnant in humanitarian crises, disasters, or emergency situations as officially announced by the government. Also, the new rules now require that each state must set up a medical board. This board will be in charge of deciding if a pregnancy can be ended after 24 weeks, but only in situations where the unborn baby has a defect. This board must give its decision about ending the pregnancy within three days of getting a request. Before these new rules, if an abortion happened within 12 weeks of getting pregnant, only one doctor's approval was needed. If it happened between 12 and 20 weeks, two doctors had to agree. Lastly, these rules also make it compulsory for the Medical Board to make sure that if they recommend an abortion, it is done safely, with all necessary precautions, and with proper counseling. This must happen within five days of receiving the request for the abortion.
G.S.R 730(E). — In exercise of the powers conferred by section 6 of the Medical Termination of Pregnancy Act, 1971 (34 of 1971), the Central Government hereby makes the following rules to amend the Medical Termination of 1. (1) These rules may be called the Medical Termination of Pregnancy (Amendment) Rules, 2021. (2) They shall come into force on the date of their publication in the Official Gazette. 2. In the Medical Termination of Pregnancy Rules, 2003 (herein after referred to as the said rules), in rule 2, after sub- rule (e), the following sub-rule shall be inserted, namely:- ‘(f) “Medical Board” means the Medical Board constituted under sub-section (2C) of section 3 of the Act.’. 3. After rule 3 of the said rules, the following rules shall be inserted, namely:- “ 3A. Powers and functions of Medical Board.—For the purposes of section 3,— (a) the powers of the Medical Board shall be the following, namely:- (i) to allow or deny termination of pregnancy beyond twenty-four weeks of gestation period under sub-section (2B) of the said section only after due consideration and ensuring that the procedure would be safe for the woman at that gestation age and whether the foetal malformation has substantial risk of it being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously (ii) co-opt other specialists in the Board and ask for any additional investigations if required, for deciding on the (b) the functions of the Medical Board shall be the following, namely :- (i) to examine the woman and her reports, who may approach for medical termination of pregnancy under sub- (ii) provide the opinion of Medical Board in Form D with regard to the termination of pregnancy or rejection of request for termination within three days of receiving the request for medical termination of pregnancy under (iii) to ensure that the termination procedure, when advised by the Medical Board, is carried out with all safety precautions along with appropriate counselling within five days of the receipt of the request for medical termination of pregnancy under sub-section (2B) of section 3. 3B. Women eligible for termination of pregnancy up to twenty-four weeks.— The following categories of women shall be considered eligible for termination of pregnancy under clause (b) of sub- section (2) Section 3 of the Act, for a period of up to twenty-four weeks, namely:- (c) change of marital status during the ongoing pregnancy (widowhood and divorce); (d) women with physical disabilities [major disability as per criteria laid down under the Rights of Persons with (e) mentally ill women including mental retardation; (f) the foetal malformation that has substantial risk of being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped; and (g) women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the Government.” . (a) in clause (c), in sub-clause (ii), for the words “twenty- weeks”, the words “twenty – four weeks” shall be (b) after clause (c), the following clause shall be inserted, namely:- “(ca) A Registered Medical Practitioner shall have the following experience and training for conducting termination of pregnancy upto nine weeks of gestation period by medical methods of abortion, namely:- (i) experience at any hospital for a period of not less than three months in the practice of obstetrics and (ii) has independently performed ten cases of pregnancy termination by medical methods of abortion under the supervision of a Registered Medical Practitioner in a hospital established or maintained, or a training institute approved for this purpose, by the Government.”. 5. After rule 4 of the said rules, the following rule shall be inserted, namely:- “4A. (1) For the purposes of sub-section (2A) of section 3 of the Act, the opinion of Registered Medical Practitioner which is required for termination of pregnancy at different gestation ages shall be the following, namely:- (a) till nine weeks of gestation period, by Medical Methods of Abortion: Registered Medical Practitioner eligible (b) till twelve weeks of gestation period, by surgical method: Registered Medical Practitioner eligible under clauses (a), (b), (c) and (d) of rule 4; (c) beyond twelve weeks till twenty weeks of gestation period: Registered Medical Practitioner (2) For the purposes of sub-section (2A) of section 3 of the Act, the opinion of two Registered Medical Practitioners eligible under clauses (a), (b) and (d) of rule 4, which is required for termination of pregnancy beyond twenty weeks till twenty-four weeks of gestation period, shall be in Form E. (3) For the purposes of sub-secion (2B) of section 3, the opinion for medical termination of pregnancy beyond twenty-four weeks gestation period: Shall be given by a Medical Board duly constituted by the respective State Government or Union territory Administration at approved facilities and two Registered Medical Practitioners eligible under clauses (a), (b) and (d) of rule 4, shall perform the termination of pregnancy based on the decision of such Medical Board.”. 6. In rule 5 of the said rules, in sub-rule (1), in clause (ii),— (A) for the figures and word “20 weeks”, the words “twenty-four weeks” shall be substituted; (B) for the words “for transportation; and”, the words “for transportation;” shall be substituted; (C) for the words “Government for India from time to time.”, the words “the Central Government from time to time; (D) after sub-clause (c), the following shall be inserted, namely:- “in case of termination beyond twenty-four weeks of pregnancy:- (a) an operation table and instruments for performing abdominal or gynaecological surgery; (b) anaesthetic equipment, resuscitation equipment and sterilisation equipment; (c) availability of drugs, parental fluids and blood for emergency use, as may be notified by the Central (d) facilities for procedure under ultrasound guidance.”. (E) in the Explanation, for the words “seven weeks”, the words “nine weeks” shall be substituted. 7. For Form A of the said rules, the following Form shall be substituted, namely:- (B) Pregnancy can be terminated upto twenty-four weeks (iii) Non-Government or Private or Nursing Home or Other Institutions: (iv) State, if the following facilities are available at the place: (i) Gynaecological examination or labour table. (ii) Resuscitation equipment. (iv) Facilities for treatment of shock, including emergency drugs. (v) Facilities for transportations, if required. (i) An operation table and instruments for performing abdominal or gynaecological surgery. (ii) Drugs and parental fluids in sufficient supply for emergency cases. (iii) Anaesthetic equipment, resuscitation equipment and sterilization equipment. Date: Signature of the owner for the place.”. 8. After Form C of the said rule, the following Forms shall be inserted, namely:- Report of the Medical Board for Pregnancy Termination Beyond 24 weeks Details of the woman seeking termination of pregnancy: 6. Opinion by Medical Board for termination of pregnancy: 7. Physical fitness of the woman for the termination of pregnancy: Members of the Medical Board who reviewed the case: Date and Time:…………. Opinion Form of Registered Medical Practitioners (For gestation age beyond twenty weeks till twenty-four weeks) (Name and qualifications of the Registered Medical Practitioner in block letters) (Full address of the Registered Medical Practitioner) (Name and qualifications of the Registered Medical Practitioner in block letters) (Full address of the Registered Medical Practitioner) hereby certify that we are of opinion, formed in good faith, that it is necessary to terminate the pregnancy of resident of_________________________________________________________________________________ which is beyond twenty weeks but till twenty-four weeks under special circumstances as given below*. *Specify the circumstance(s) from (a) to (g) appropriate for termination of pregnancy beyond twenty weeks till (c) Change of marital status during the ongoing pregnancy (widowhood and divorce) (d) Women with physical disabilities [major disability as per criteria laid down under the Rights of Persons with (e) Mentally ill women including mental retardation (f) The foetal malformation that has substantial risk of being incompatible with life or if the child is born it may suffer from such physical or mental abnormalities to be seriously handicapped (g) Women with pregnancy in humanitarian settings or disaster or emergency situations as declared by We hear by give intimation that we terminated the pregnancy of the woman referred to above who bears the Serial No. ______________________ in the Admission Register of the hospital / approved place. Signature of the Registered Medical Practitioner Signature of the Registered Medical Practitioner Note: Account may be taken of the pregnant woman’s actual or reasonably foreseeable environment in determining whether the continuance of her pregnancy would involve a grave injury to her physical or mental health. “. Note:- The Medical Termination of Pregnancy Rules, 2003 were published in the Gazette of India, Extraordinary, Part II, section 3, sub-section (i) vide notification number G.S.R. 485(E), dated the 13 th June, 2003. Uploaded by Dte. of Printing at Government of India Press, Ring Road, Mayapuri, New Delhi-110064 and Published by the Controller of Publications, Delhi-110054. MANOJ
The Central Government announced new rules on October 12th. These rules change the time limit for ending a pregnancy, known as abortion, from 20 weeks to 24 weeks. This longer time limit applies only to certain groups of women. These new rules are based on Section 6 of the Medical Termination of Pregnancy Act. It's important to know that the main law that changed these rules, called the Medical Termination of Pregnancy (Amendment) Act, 2021, officially started on September 24th, 2021. Upper Limits For Medical Termination Of Pregnancy Extended To 24 Weeks: MTP Act Amendment Comes Into Force This change in the law, or "amendment," specifically updated Section 3 of the Medical Termination of Pregnancy Act. It moved the maximum time limit for an abortion from 20 weeks to 24 weeks. This longer period is only for specific types of women, which are now listed in the MTP Rules announced on October 12th. The new Medical Termination of Pregnancy (Amendment) Rules, 2021, explain which groups of women can have an abortion up to 24 weeks. These groups are eligible under a specific part of Section 3 of the Act. They include: women who have survived sexual assault, rape, or incest; girls who are minors; women whose marital status changed during their pregnancy, such as becoming a widow or getting divorced; women with significant physical disabilities as defined by another law; women with mental health issues, including intellectual disabilities; cases where the unborn baby has a serious defect that means it likely won't survive or would be severely disabled if born; and women who are pregnant in humanitarian crises, disasters, or emergency situations as officially announced by the government. Also, the new rules now require that each state must set up a medical board. This board will be in charge of deciding if a pregnancy can be ended after 24 weeks, but only in situations where the unborn baby has a defect. This board must give its decision about ending the pregnancy within three days of getting a request. Before these new rules, if an abortion happened within 12 weeks of getting pregnant, only one doctor's approval was needed. If it happened between 12 and 20 weeks, two doctors had to agree. Lastly, these rules also make it compulsory for the Medical Board to make sure that if they recommend an abortion, it is done safely, with all necessary precautions, and with proper counseling. This must happen within five days of receiving the request for the abortion.
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. Criminal Appeal No.218 of 2013 has been filed by Appellant (accused) against the judgment and order dated 13.02.2013 passed by the learned Additional Sessions Judge, Niphad, District Nashik in Sessions Case No. 32 of 2006 (for short “learned trial court”), convicting Appellant for offences punishable under Sections 376 and 503 of the Indian Penal Code, 1860 (for short “IPC”) and sentencing him to suffer rigorous imprisonment of five years and to pay fine of Rs.1,000/-, in default whereof to undergo simple imprisonment for one year. 2. Criminal Appeal No.309 of 2014 has been filed by the State of Maharashtra for enhancement of the sentence passed by the learned trial court convicting the Appellant. 3. Criminal Suo-Motu Petition No.2 of 2015 has been registered by this court having issued a suo-motu notice for enhancement of the sentence passed by the learned trial court vide order dated 26.06.2013 in Criminal Appeal No.218 of 2013, which “ Heard the learned Counsel for the applicant. 2. The Appeal is admitted. 3. The applicant herein is convicted for the offence punishable under Section 376 of IPC, is sentenced to R.I. for five years and to pay fine of Rs.1,000/- in default S.I. for one month. The minimum sentence for the offence punishable under Section 376 of IPC is seven years. The reasons assigned by the Sessions Court for awarding the sentence less than minimum is not justified. The reasons assigned by the Sessions Judge is that the applicant-accused is facing trial for 6-7 years and, therefore, a lenient view has been taken. Another ground assigned by the Sessions Court is that the applicant is aged about 60 years. However, the fact remains that he has been convicted for the offence punishable under Section 376 of IPC for committing rape of his sister-in-law, who is physically handicapped i.e. she is deaf and dumb. Hence, there was no reason for the Sessions Court to take a lenient view. 4. Issue notice to enhancement of sentence to the accused- applicant. The notice be served upon the applicant in Nashik Central Prison. Notice returnable on 10th July, 2013. 5. The learned Counsel for the applicant submits that he would file private paper book. Time is prayed for is granted. Paper book to be filed within six weeks from today. 6. In the meanwhile, call for R & P.” 4. The facts emerging from the record of the case are as 4.1. Mother of the victim, Meerabai Jairam Gare, first informant filed First Information Report (FIR) No.I-98 of 2005 in respect of the alleged incident of rape on her daughter 'X' with Lasalgaon Police Station against the Appellant. Victim 'X' is wife of Bhausaheb Mudgul, younger brother of accused. Victim, her husband Bhausaheb who is blind and 2 years old son, accused Madhukar, Punjabai, wife of the accused, father of the accused, Nivrutti, brother of the accused and two children of accused all stayed together in the matrimonial house. Victim 'X' is deaf and dumb and as such she communicates with the help of gestures/sign language. Victim was married to Bhausaheb for five years before the date of incident and had given birth to one son. 4.2. First informant received information from Sunil (her son) that victim was unwell, hence on 19.11.2005, her second son Shankar on making enquiry with victim on telephone came to know that she was being brought to her paternal house by her father-in-law. After victim was dropped at her paternal house it was informed by her father-in-law that she was suffering from fever and cold and had visited the hospital for treatment. 4.3. First informant inquired with victim about her wellbeing upon which victim broke down and by gestures informed that accused had ravished her three days ago and threatened her not to divulge the incident to anybody. First informant immediately approached Lasalgaon Police Station and lodged the report. Police Inspector Shri. Sangle recorded statement of victim with help of first informant and referred her for medical examination. He recorded statements of witnesses and conducted spot panchanama. Appellant was arrested and referred for medical examination. After completion of investigation, chargesheet was filed. Contents of charge that accused on 16.11.2005 at about 21.00 to 22.00 hours in the residential house of the victim committed rape without her consent and threatened her with injury to her husband and reputation if she disclosed the offence to anybody, were explained to accused in vernacular, however, Appellant pleaded not guilty to the charge and claimed to be tried. 5. Prosecution examined 6 witnesses to bring home the guilt of the accused. PW-1 – Vrushali Shrikant Gharpure, special teacher and translator of language of deaf and dumb persons was examined vide Exhibit-23; PW-2 victim herself, was examined through PW-1 vide Exhibit-25; PW-3 - Dr. Vijaysingh Dnyanoba Mundhe, Doctor who examined the accused on 19.11.2005 was examined vide Exhibit-26; PW-4 – Meerabai Jayram Gare, mother of victim was examined vide Exhibit-31; PW-5 - Prabhakar Bhaguji Gade is the spot panchanama witness; PW-6 - Dr. Sandhya Vilas Patil, Doctor who examined the victim on 20.11.2005 was examined vide Exhibit-37. In addition prosecution relied upon Chemical Analyser’s (CA) report in respect of blood sample, pubic hair sample, nail clippings of accused; CA report of blood sample, pubic hair sample, vaginal swab and vaginal smear sample of victim vide Exhibit-46. 6. Mr. Satpute, has argued that prosecutrix - victim has filed a false complaint to implicate Appellant at the behest of PW-4 i.e. mother of victim to pressurise and effect partition of the family field/ property; that on 16.11.2022, Appellant was not present in the home and had gone alongwith other family members to attend ‘ kirtan’ program and returned alongwith the family members late in the night; that the Investigating Officer (I.O.) was not examined by prosecution to unearth the real facts; that there is substantial delay of 3 days in filing the report after the alleged incident and it is fatal to the veracity of the complaint; that no injuries were found on private parts of the victim; that victim did not reveal about any such incident to the doctor who attended to her in the hospital where she was taken by her father- in-law and lastly recording of the statement of the victim by the police was highly suspicious as it remains unexplained. Hence, he prays for setting aside the impugned judgment and in the alternative submits that since appellant has already undergone the sentence of 5 years awarded by the impugned judgment, Criminal Appeal No.309 of 2014 filed by the State and Suo-Motu Petition No.2 of 2015, both be 7. PER-CONTRA, Mr. Dedhia, learned APP, on behalf of the State submitted that accused is brother-in-law of victim and on date of incident i.e. 16.11.2005, all family members except accused, victim and her blind husband, had gone to attend ‘ kirtan’ program in the village temple; that at about 10:00 p.m. at night when the victim was alone inside the house, accused entered inside, forced himself on her and ravished her. He submitted that circumstantial evidence in the present case clearly established commission of the overt act by Appellant and it stands corroborated by medical evidence of the doctor. He has therefore prayed and urged for enhancement of the sentence of 5 years awarded to Appellant under the unamended provisions of Section 376 IPC prior to 2018, once the conviction is rendered by the trial court. 8. We have perused evidence of the prosecution witnesses carefully. Evidence of PW-1, PW-2 and PW-4 reveal that incident took place on 16.11.2005 whereas FIR was lodged on 19.11.2005. It has also come in evidence that immediately after the incident, victim through gestures narrated and informed her father-in-law i.e. father of the accused about the incident but no steps were taken. It is only on 19.11.2005, when victim was dropped at her paternal house, PW-4 lodged the report on learning about the incident on the same day itself. Hence the delay, if any, in lodging the report as seen in the present case is legitimate and is properly explained. 9. Considering the fact that the incident had occurred inside the house, however evidence given by victim through PW-1 read with the evidence given by PW-4, mother of the victim clearly indicates and proves the incident that took place. Witnesses have stated that victim has narrated the incident to each of them by gestures. PW-4 being mother of the victim, can be said to have been certainly acquainted with the communication ability of victim. So also, PW-1 Vrushali Gharpure, expert witness has also given evidence before the court. 10. Prosecution has examined PW-1 and her evidence clearly indicates that victim informed her in the presence of the court as to how she was dealt with by the accused. Both, expert witness as well as victim have deposed before court; questions asked to victim through PW-1 and answers received by court through PW-1 having been recorded by the court show the skill set of PW-1 to have entered into a dialogue and communication with the victim in the presence of the learned trial court Judge. In our view learned trial court has adopted a proper procedure for recording of evidence of victim i.e. PW-2 who was deaf and dumb. Having perused the evidence of PW-1 read with the evidence of PW-2 and PW-4, mother, we are convinced that the entire evidence supports the case of the prosecution. It is pertinent to note that in the present case, testimony of PW-1, expert witness, is not challenged before the trial court nor any suggestions are made challenging her confidence/skill set in this regard. PW-1 admittedly being the translator/interpreter had no interest in the trial. Statements/gestures/sign language of the victim i.e. PW-2 as interpreted by the interpreter i.e. PW-1 stand corroborated by the evidence given by PW-4 i.e. the first informant, mother of the victim. Evidence of these three witnesses is not shattered in any manner whatsoever in cross-examination. Facts in the present case clearly show that the interpreter had no interest in the prosecution’s case and she had acted merely on the direction of the Investigating Officer and/or of the learned trial court on the strength of her expertise of being a special teacher in the school where hearing and speech impaired children take education. Hence, the evidence of PW-1, PW-2 and PW-4 deserves to be accepted. 11. In the present case, it seen that the incident had occurred on 16.11.2005 whereas the Partition Suit R.C.S. No.8 of 2006 was filed by Bhausaheb Makaji Mudgul in 2006. If the defence relies upon the partition dispute, then the said dispute ought to have been prevailing on the date of the incident. However, that is not the case, considering that the unfortunate incident had occurred well before the suit was filed and hence defence of the pending partition suit cannot be available to the accused. It is completely misplaced. 12. It is pertinent to note that since the victim is deaf and dumb, her evidence was recorded through the expert witness PW-1 i.e. the special teacher for deaf and dumb vide Exhibit-23 under the provisions of Section 119 of the Act. It is seen that PW-1 is an experienced teacher working since 1987 with Smt. Mai Lele Shrawan Vikas Vidyalaya, Nashik as a Special Teacher and was specially deputed to give evidence after communicating with the victim by the Head- Mistress of the institution. PW-1 is qualified and holds the degree of Bachelor of Arts and Bachelor of Education (Deaf). PW-1 is thus an expert witness and her testimony is therefore crucial. PW-2 - victim through PW-1 has testified that on the date of the incident her husband was sleeping outside the house and other family members had gone out to the temple and she was sleeping inside the house along with her son. According to victim at about 10:00 p.m., accused entered into the house and closed the door of the room; thereafter accused shut her mouth and ravished her; however before leaving, accused told her not to disclose the incident to anybody and promised to pay her a handsome amount. She has further testified that after her family members returned home she informed her father-in-law about the incident, however, the father-in-law thereafter decided to drop the victim at her paternal house after 2 days. According to the victim, she was operated upon for a surgery on her uterus and therefore her husband was sleeping outside the room; that the uterus of the victim was removed due to surgery; that after the surgery for 6 months victim stayed at her parental house and had returned to the matrimonial house 15 days before the incident and as per advice given by the doctor was required to abstain from having sexual relation with her husband for some time. 13. It will be useful to refer to the Section 119 of the Indian Evidence Act, 1872 which relates to dumb witnesses. Section 119 defines dumb witness as one who is unable to speak but may give his evidence in any other manner in which he can make it intelligible, either by writing, by signs and that such writing must be written and the signs made in open court. If the above requirement is met then evidence so given shall be deemed to be oral evidence. In the present case, it is seen that provisions of Section 119 have been fully complied with by the prosecution in proving its case. Victim i.e. PW-2 has examined herself through the expert witness i.e. PW-1, who has interpreted by sign language and gestures of the victim in the court, as such the evidence so recorded is oral evidence. This testimony of the victim herself through PW-1 as the interpreter has not been shaken at all in cross-examination. It is seen that deposition of the victim i.e. PW-2 has been done through PW-1 together and both of them have been administered oath. Though elaborate cross-examination has been done by the Advocate for the accused, the same is insufficient in so far as disproving the incident is concerned. Questions have been asked to the victim pertaining to the alleged partition suit wherein the victim has given the following answer:- I am not aware as to whether my husband has filed the case against other members of the family for getting the field. My brother and husband used to attend the court when required. The dispute prevailing between me and the accused on account of agricultural field. If accused delivered the field then the dispute come to an end…………" 14. Defence case solely relies upon one and only one fact i.e. the dispute of partition of family property initiated by filing of the suit by husband of the victim against the accused and the father of the 15. It is to be understood that no woman would even otherwise level and take the risk of levelling such a wild charge of ravishing her only on the pretext of partition of the property. Victim is deaf and dumb, whereas her husband is blind. For more than 5 years victim and her husband have been part of the joint family with the parent in- laws and the family of her brother-in-law. Unless and until such an incident had happened or occurred there was no reason for the victim to make such an allegation. It is further seen that since the victim was deaf and dumb every aspect of the incident has been interpreted by the PW-1 in evidence before the learned trial judge. It is pertinent to note that partition suit being RCS No.8 of 2006 was filed in February 2006 whereas the incident has occurred on 16.11.2005. The evidence given by PW-1 in interpreting the unfortunate incident as told by the victim is believable. Evidence given by the victim herself (PW-2) assumes importance in such a case. 16. Cross-examination of the victim shows that she is confronted with several questions, inter alia, pertaining to the partition dispute and the partition suit between her husband on the one hand and the father-in-law and accused on the other hand. In her cross- examination, victim has stated that the lis in the partition suit can come to an end, if the portion of the field claimed by her husband is delivered to him by accused and the father-in-law. This statement is unfortunately viewed by the defence to mean that victim has filed a false complaint. The answer given by the victim with respect to the issue of partition would have no nexus whatsoever with the heinous act of the accused. Evidence given by victim cannot be discarded on the basis of the above statement. Such answer given by victim can never be the basis for filing the complaint. 17. That apart, evidence given by PW-4 mother of the victim in understanding and narrating the incident as told to her by the victim also deserves to believed as the same corroborates the evidence given by PW-1 and PW-2. In this backdrop, medical evidence, therefore assumes significance. PW-3 - Dr. Vijaysingh Mundhe is the doctor who has examined the victim whereas PW-6 - Dr. Sandhya Patil has examined the accused. Certificate issued by PW-6 speaks for itself and cannot be disbelieved though she has examined the victim three days after the incident. This delay cannot be fatal for accepting the certificate. PW-3 - Dr. Vijaysingh Mundhe has examined the accused on 19.11.2005 i.e. within 24 hours after the incident and he has collected samples of his pubic hair, blood sample, nail clippings and sent them for chemical analysis. C.A. Report (Exhibit-45) clearly states that ‘human semen is detected on pubic hair of accused’. Though the victim is deaf and dumb, she gathered courage and informed her father-in-law first and thereafter her mother and without wasting time report was lodged. No married women would put at stake her life by making such a serious allegation against her family member unless 18. The Apex Court in the case of Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat1, in paragraph No.9 has held as under:- “9. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society. We must analyze the argument in support of the need for corroboration and subject it to relentless and remorseless cross- examination. And we must do so with a logical, and not an opinionated, eye in the light of probabilities with our feet firmly planted on the soil of India and with our eyes focussed on the Indian horizon………….” 19. The Apex Court in the above judgment has further held that a girl or woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. She would be conscious of the danger of being ostracized by the society or being looked down by the society including by her own family members, relatives, friends, and neighbors, she would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial house and happiness being shattered. 20. The Apex Court in the case of Sheikh Zakir Vs. State of Bihar2, has held that a reading of the deposition of the complainant shows that it has a ring of truth around. The absence of any injury on the person of the complainant may not itself discredit the statement of the complainant. Merely because the complainant was a helpless victim who was by force prevented from offering serious physical resistance, she cannot be disbelieved. The Apex Court has further held that if a conviction is based on the evidence of a prosecutrix without any corroboration it will not be illegal on that sole ground. 21. In the present case, testimony of PW-1, PW-2 and PW-4 if read together clearly prove the chain of circumstances and act of the accused. The defence has failed to place any cogent material on record. Therefore, taking into consideration the entire evidence on record, deposition of the prosecution witnesses and circumstances sought to be relied upon by the prosecution, we find that the prosecution has succeeded in proving its case beyond reasonable 22. In the case of Moti Lal Vs. State of M.P.3, the Supreme Court while considering a case under Section 376 IPC, referred to the observations of Vivian Bose, J. in Rameshwar Vs. The State of Rajasthan4, and has observed that a woman or a girl who is raped is not an accomplice; that corroboration is not the sine qua for conviction in a rape case; that it is settled law that the victim of sexual assault is not treated as accomplice and as such, her evidence does not require corroboration from any evidence including the evidence of a doctor; that in a given case even if the doctor who has examined the victim does not find sign of rape, it is no ground to disbelieve the sole testimony of the prosecutrix; that in normal course a victim of sexual assault does not like to disclose such offence even before her family members much less before public or before the police; the Indian women has tendency to conceal such offence because it involves her prestige as well as prestige of her family and only in few cases, the victim girl or the family members has courage to go before the police station and lodge a case. 22.1. In the present case, it is seen that the victim is a helpless, deaf and dumb married woman whose privacy and personal integrity has been shattered by the Appellant. In paragraph 8 of the above judgment, the Supreme Court has held as under:- “8. Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault -- it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Court, therefore, shoulders a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations. This position was highlighted in State of Punjab Vs. Gurmeet Singh5.” 22.2. Thus, from the above, it is seen that rape is not merely a physical assault but it destructs the whole personality of the helpless woman. In the present case, the victim is helpless handicapped woman and thus, the present case requires to be dealt with utmost sensitivity. As seen, the evidence of the prosecutrix in the present case inspires confidence and also stands corroborated in material particulars on the basis of testimony of the prosecution witnesses. 23. In view of the above discussion and findings, and on appreciation of the evidence, offence committed by the accused stands proved beyond reasonable doubt. The only question that now remains to be considered is as regards the sentence. Appellant has behaved in the most horrific manner and shocked our conscience. The magnitude of his offence is such that he has misused his position of trust and committed an act as alleged and proved on a helpless handicapped victim who could not speak or hear. We would have countenanced the leniency shown by the learned trial court, but in the facts of the present case, we are afraid that we cannot persuade ourselves to do so. We disagree with the findings returned by the learned trial court in so far as the award of sentence is concerned; learned trial court has clearly erred in awarding the sentence of 5 years rigorous imprisonment to the accused on the ground of taking into consideration the age of the accused and that the accused was facing trial for 6 - 7 years and attending the court; we do not agree with this reasoning as it is contrary to the statute. Unamended Section 376 IPC prior to 21.04.2018 as it stood referred to punishment for rape and stated that except in the cases provided by sub-section (2) whoever commits rape shall be punished with rigorous imprisonment of either description for a term which shall not be less than 7 years, but which may extend to imprisonment for life, and shall also be liable to fine. The present case is covered by the provisions of Section 376(1) IPC. In view of the statutory provision, once the trial court had come to the conclusion that the prosecution had squarely proved the offence of rape committed by the accused on the victim beyond reasonable doubt, then there is no reason to defer from the statutory provision and award a lesser sentence than what is prescribed by the statute. It is seen that the victim in the present case is a deaf and dumb woman. Ravishing such a handicapped/helpless woman and more specifically when she is alone inside the house and the entire case of the defence falling apart without proving the chain of circumstances, the sentence awarded by the learned trial court directing the accused to suffer rigorous imprisonment for 5 years and to pay fine of Rs.1,000/- and in default of payment of fine to undergo simple imprisonment for 1 month is therefore set aside to that extent and substituted by the (i) accused Madhukar Makaji Mudgul is hereby convicted in view of section 235 of the Criminal Procedure Code of the offence punishable under Section 376 IPC and is sentenced to suffer rigorous imprisonment for 7 years and to pay fine of Rs.25,000/-, and in default of payment of fine the accused shall further undergo simple imprisonment for 6 months; rest of the impugned judgment and order shall remain as it 24. Subject to the above modification of the sentence in the impugned judgment dated 13.02.2013 to the aforesaid extent, Criminal Appeal No.218 of 2013 filed by the accused fails and is 25. In view of the above directions, Criminal Appeal No.309 of 2014 filed by the State stands allowed by substituting the sentence awarded by the learned trial court to the Appellant from 5 years to 7 years rigorous imprisonment and fine from Rs.1,000/- to Rs.25,000/-, and in default of payment of fine simple imprisonment for 6 months. 26. Criminal Suo-Motu Petition No.2 of 2015 also stands disposed in view of the above directions in Criminal Appeal No.309 of 27. Appellant shall surrender before the learned Additional Sessions Judge, Niphad, District Nashik in order to undergo the remaining sentence as awarded within a period of four weeks from the date of uploading of this judgment. If the Appellant does not surrender within a period of four weeks as directed, non-bailable warrant be issued to effect arrest of Appellant to comply with the present order in accordance with law. 28. This Court had requested Advocate Mr. Ashish Satpute to espouse the cause of the Appellant in Criminal Appeal No. 218 of 2013; he has assisted the court in appreciating the evidence on record. His professional fee quantified as per rule to be paid to him by the
The Bombay High Court stated that an older age or showing up for all court dates cannot make a rapist's sentence lighter than the law's minimum. The court actually increased the jail time for a man who raped his deaf and mute sister-in-law in 2005. This man, her brother-in-law, attacked her when other family members were not home. He also threatened to hurt her blind husband, who was his own brother. The court stated that once the first court was very sure the man had committed rape, there was no reason to go against the law and give a sentence less than what the law clearly sets out. So, two judges, Justices AS Gadkari and Milind Jadhav, raised the 58-year-old man's jail sentence from five years to seven years. Seven years was the lowest possible sentence for rape under the Indian Penal Code (Section 376(1)) before changes were made in 2018. The judges also told him to turn himself in right away. The judges said the man "behaved in a terrible way and shocked our sense of right and wrong." They added that five years in jail and a Rs. 1,000 fine was not enough punishment for raping a woman who was disabled and helpless, especially when she was alone at home. The judges also stated that no woman would make such a serious accusation of rape just to get a share of property, unless the attack truly happened. If the incident hadn't occurred, there would be no reason for the victim to make such a claim. The High Court looked at three different cases at the same time: the man's appeal against being found guilty, the government's appeal asking for a tougher sentence, and the High Court's own decision to review and possibly increase the man's sentence. The man was found guilty in 2013 of rape and threatening someone (under sections 376 and 503 of the Indian Penal Code). For the incident that happened in 2005, he was sentenced to five years in prison and a fine of Rs. 1,000. The lawyers trying to prove guilt argued that on November 16, 2005, between 9 and 10 PM, the man raped the woman in her home. Other family members, including the man's wife and in-laws, were not there. The woman said she tried to tell her father-in-law, but he did not listen. Instead, he took her to her mother's house. A police report was filed only after the victim told her mother, who then went to the police. In the High Court, lawyer Ashish Satpute argued for the man. He said the victim made a false complaint to blame the man, pushed by her mother, to divide their shared family property. He claimed the man was at a religious gathering with other family members. He also pointed out that there was a three-day delay in filing the police report, that doctors found no injuries on the victim, and that the police investigator was not questioned in court. The lawyers trying to prove guilt argued that on the day of the incident, only the victim, her husband, and the brother-in-law were at home. They also said that medical proof and other facts surrounding the case showed the man was guilty. However, the victim told the first court that she had surgery to remove her uterus and had been living at her mother's house for six months. She had only returned to her in-laws' home 15 days before the incident. She also said her husband was sleeping outside because she was supposed to avoid sex due to her surgery. The judges believed what the victim, her mother, and the interpreter (who helped the victim speak in court) said. The court did not accept the defense's argument that a lawsuit over dividing property was the real reason for the accusations, especially because that lawsuit was filed a year after the rape incident.
. Criminal Appeal No.218 of 2013 has been filed by Appellant (accused) against the judgment and order dated 13.02.2013 passed by the learned Additional Sessions Judge, Niphad, District Nashik in Sessions Case No. 32 of 2006 (for short “learned trial court”), convicting Appellant for offences punishable under Sections 376 and 503 of the Indian Penal Code, 1860 (for short “IPC”) and sentencing him to suffer rigorous imprisonment of five years and to pay fine of Rs.1,000/-, in default whereof to undergo simple imprisonment for one year. 2. Criminal Appeal No.309 of 2014 has been filed by the State of Maharashtra for enhancement of the sentence passed by the learned trial court convicting the Appellant. 3. Criminal Suo-Motu Petition No.2 of 2015 has been registered by this court having issued a suo-motu notice for enhancement of the sentence passed by the learned trial court vide order dated 26.06.2013 in Criminal Appeal No.218 of 2013, which “ Heard the learned Counsel for the applicant. 2. The Appeal is admitted. 3. The applicant herein is convicted for the offence punishable under Section 376 of IPC, is sentenced to R.I. for five years and to pay fine of Rs.1,000/- in default S.I. for one month. The minimum sentence for the offence punishable under Section 376 of IPC is seven years. The reasons assigned by the Sessions Court for awarding the sentence less than minimum is not justified. The reasons assigned by the Sessions Judge is that the applicant-accused is facing trial for 6-7 years and, therefore, a lenient view has been taken. Another ground assigned by the Sessions Court is that the applicant is aged about 60 years. However, the fact remains that he has been convicted for the offence punishable under Section 376 of IPC for committing rape of his sister-in-law, who is physically handicapped i.e. she is deaf and dumb. Hence, there was no reason for the Sessions Court to take a lenient view. 4. Issue notice to enhancement of sentence to the accused- applicant. The notice be served upon the applicant in Nashik Central Prison. Notice returnable on 10th July, 2013. 5. The learned Counsel for the applicant submits that he would file private paper book. Time is prayed for is granted. Paper book to be filed within six weeks from today. 6. In the meanwhile, call for R & P.” 4. The facts emerging from the record of the case are as 4.1. Mother of the victim, Meerabai Jairam Gare, first informant filed First Information Report (FIR) No.I-98 of 2005 in respect of the alleged incident of rape on her daughter 'X' with Lasalgaon Police Station against the Appellant. Victim 'X' is wife of Bhausaheb Mudgul, younger brother of accused. Victim, her husband Bhausaheb who is blind and 2 years old son, accused Madhukar, Punjabai, wife of the accused, father of the accused, Nivrutti, brother of the accused and two children of accused all stayed together in the matrimonial house. Victim 'X' is deaf and dumb and as such she communicates with the help of gestures/sign language. Victim was married to Bhausaheb for five years before the date of incident and had given birth to one son. 4.2. First informant received information from Sunil (her son) that victim was unwell, hence on 19.11.2005, her second son Shankar on making enquiry with victim on telephone came to know that she was being brought to her paternal house by her father-in-law. After victim was dropped at her paternal house it was informed by her father-in-law that she was suffering from fever and cold and had visited the hospital for treatment. 4.3. First informant inquired with victim about her wellbeing upon which victim broke down and by gestures informed that accused had ravished her three days ago and threatened her not to divulge the incident to anybody. First informant immediately approached Lasalgaon Police Station and lodged the report. Police Inspector Shri. Sangle recorded statement of victim with help of first informant and referred her for medical examination. He recorded statements of witnesses and conducted spot panchanama. Appellant was arrested and referred for medical examination. After completion of investigation, chargesheet was filed. Contents of charge that accused on 16.11.2005 at about 21.00 to 22.00 hours in the residential house of the victim committed rape without her consent and threatened her with injury to her husband and reputation if she disclosed the offence to anybody, were explained to accused in vernacular, however, Appellant pleaded not guilty to the charge and claimed to be tried. 5. Prosecution examined 6 witnesses to bring home the guilt of the accused. PW-1 – Vrushali Shrikant Gharpure, special teacher and translator of language of deaf and dumb persons was examined vide Exhibit-23; PW-2 victim herself, was examined through PW-1 vide Exhibit-25; PW-3 - Dr. Vijaysingh Dnyanoba Mundhe, Doctor who examined the accused on 19.11.2005 was examined vide Exhibit-26; PW-4 – Meerabai Jayram Gare, mother of victim was examined vide Exhibit-31; PW-5 - Prabhakar Bhaguji Gade is the spot panchanama witness; PW-6 - Dr. Sandhya Vilas Patil, Doctor who examined the victim on 20.11.2005 was examined vide Exhibit-37. In addition prosecution relied upon Chemical Analyser’s (CA) report in respect of blood sample, pubic hair sample, nail clippings of accused; CA report of blood sample, pubic hair sample, vaginal swab and vaginal smear sample of victim vide Exhibit-46. 6. Mr. Satpute, has argued that prosecutrix - victim has filed a false complaint to implicate Appellant at the behest of PW-4 i.e. mother of victim to pressurise and effect partition of the family field/ property; that on 16.11.2022, Appellant was not present in the home and had gone alongwith other family members to attend ‘ kirtan’ program and returned alongwith the family members late in the night; that the Investigating Officer (I.O.) was not examined by prosecution to unearth the real facts; that there is substantial delay of 3 days in filing the report after the alleged incident and it is fatal to the veracity of the complaint; that no injuries were found on private parts of the victim; that victim did not reveal about any such incident to the doctor who attended to her in the hospital where she was taken by her father- in-law and lastly recording of the statement of the victim by the police was highly suspicious as it remains unexplained. Hence, he prays for setting aside the impugned judgment and in the alternative submits that since appellant has already undergone the sentence of 5 years awarded by the impugned judgment, Criminal Appeal No.309 of 2014 filed by the State and Suo-Motu Petition No.2 of 2015, both be 7. PER-CONTRA, Mr. Dedhia, learned APP, on behalf of the State submitted that accused is brother-in-law of victim and on date of incident i.e. 16.11.2005, all family members except accused, victim and her blind husband, had gone to attend ‘ kirtan’ program in the village temple; that at about 10:00 p.m. at night when the victim was alone inside the house, accused entered inside, forced himself on her and ravished her. He submitted that circumstantial evidence in the present case clearly established commission of the overt act by Appellant and it stands corroborated by medical evidence of the doctor. He has therefore prayed and urged for enhancement of the sentence of 5 years awarded to Appellant under the unamended provisions of Section 376 IPC prior to 2018, once the conviction is rendered by the trial court. 8. We have perused evidence of the prosecution witnesses carefully. Evidence of PW-1, PW-2 and PW-4 reveal that incident took place on 16.11.2005 whereas FIR was lodged on 19.11.2005. It has also come in evidence that immediately after the incident, victim through gestures narrated and informed her father-in-law i.e. father of the accused about the incident but no steps were taken. It is only on 19.11.2005, when victim was dropped at her paternal house, PW-4 lodged the report on learning about the incident on the same day itself. Hence the delay, if any, in lodging the report as seen in the present case is legitimate and is properly explained. 9. Considering the fact that the incident had occurred inside the house, however evidence given by victim through PW-1 read with the evidence given by PW-4, mother of the victim clearly indicates and proves the incident that took place. Witnesses have stated that victim has narrated the incident to each of them by gestures. PW-4 being mother of the victim, can be said to have been certainly acquainted with the communication ability of victim. So also, PW-1 Vrushali Gharpure, expert witness has also given evidence before the court. 10. Prosecution has examined PW-1 and her evidence clearly indicates that victim informed her in the presence of the court as to how she was dealt with by the accused. Both, expert witness as well as victim have deposed before court; questions asked to victim through PW-1 and answers received by court through PW-1 having been recorded by the court show the skill set of PW-1 to have entered into a dialogue and communication with the victim in the presence of the learned trial court Judge. In our view learned trial court has adopted a proper procedure for recording of evidence of victim i.e. PW-2 who was deaf and dumb. Having perused the evidence of PW-1 read with the evidence of PW-2 and PW-4, mother, we are convinced that the entire evidence supports the case of the prosecution. It is pertinent to note that in the present case, testimony of PW-1, expert witness, is not challenged before the trial court nor any suggestions are made challenging her confidence/skill set in this regard. PW-1 admittedly being the translator/interpreter had no interest in the trial. Statements/gestures/sign language of the victim i.e. PW-2 as interpreted by the interpreter i.e. PW-1 stand corroborated by the evidence given by PW-4 i.e. the first informant, mother of the victim. Evidence of these three witnesses is not shattered in any manner whatsoever in cross-examination. Facts in the present case clearly show that the interpreter had no interest in the prosecution’s case and she had acted merely on the direction of the Investigating Officer and/or of the learned trial court on the strength of her expertise of being a special teacher in the school where hearing and speech impaired children take education. Hence, the evidence of PW-1, PW-2 and PW-4 deserves to be accepted. 11. In the present case, it seen that the incident had occurred on 16.11.2005 whereas the Partition Suit R.C.S. No.8 of 2006 was filed by Bhausaheb Makaji Mudgul in 2006. If the defence relies upon the partition dispute, then the said dispute ought to have been prevailing on the date of the incident. However, that is not the case, considering that the unfortunate incident had occurred well before the suit was filed and hence defence of the pending partition suit cannot be available to the accused. It is completely misplaced. 12. It is pertinent to note that since the victim is deaf and dumb, her evidence was recorded through the expert witness PW-1 i.e. the special teacher for deaf and dumb vide Exhibit-23 under the provisions of Section 119 of the Act. It is seen that PW-1 is an experienced teacher working since 1987 with Smt. Mai Lele Shrawan Vikas Vidyalaya, Nashik as a Special Teacher and was specially deputed to give evidence after communicating with the victim by the Head- Mistress of the institution. PW-1 is qualified and holds the degree of Bachelor of Arts and Bachelor of Education (Deaf). PW-1 is thus an expert witness and her testimony is therefore crucial. PW-2 - victim through PW-1 has testified that on the date of the incident her husband was sleeping outside the house and other family members had gone out to the temple and she was sleeping inside the house along with her son. According to victim at about 10:00 p.m., accused entered into the house and closed the door of the room; thereafter accused shut her mouth and ravished her; however before leaving, accused told her not to disclose the incident to anybody and promised to pay her a handsome amount. She has further testified that after her family members returned home she informed her father-in-law about the incident, however, the father-in-law thereafter decided to drop the victim at her paternal house after 2 days. According to the victim, she was operated upon for a surgery on her uterus and therefore her husband was sleeping outside the room; that the uterus of the victim was removed due to surgery; that after the surgery for 6 months victim stayed at her parental house and had returned to the matrimonial house 15 days before the incident and as per advice given by the doctor was required to abstain from having sexual relation with her husband for some time. 13. It will be useful to refer to the Section 119 of the Indian Evidence Act, 1872 which relates to dumb witnesses. Section 119 defines dumb witness as one who is unable to speak but may give his evidence in any other manner in which he can make it intelligible, either by writing, by signs and that such writing must be written and the signs made in open court. If the above requirement is met then evidence so given shall be deemed to be oral evidence. In the present case, it is seen that provisions of Section 119 have been fully complied with by the prosecution in proving its case. Victim i.e. PW-2 has examined herself through the expert witness i.e. PW-1, who has interpreted by sign language and gestures of the victim in the court, as such the evidence so recorded is oral evidence. This testimony of the victim herself through PW-1 as the interpreter has not been shaken at all in cross-examination. It is seen that deposition of the victim i.e. PW-2 has been done through PW-1 together and both of them have been administered oath. Though elaborate cross-examination has been done by the Advocate for the accused, the same is insufficient in so far as disproving the incident is concerned. Questions have been asked to the victim pertaining to the alleged partition suit wherein the victim has given the following answer:- I am not aware as to whether my husband has filed the case against other members of the family for getting the field. My brother and husband used to attend the court when required. The dispute prevailing between me and the accused on account of agricultural field. If accused delivered the field then the dispute come to an end…………" 14. Defence case solely relies upon one and only one fact i.e. the dispute of partition of family property initiated by filing of the suit by husband of the victim against the accused and the father of the 15. It is to be understood that no woman would even otherwise level and take the risk of levelling such a wild charge of ravishing her only on the pretext of partition of the property. Victim is deaf and dumb, whereas her husband is blind. For more than 5 years victim and her husband have been part of the joint family with the parent in- laws and the family of her brother-in-law. Unless and until such an incident had happened or occurred there was no reason for the victim to make such an allegation. It is further seen that since the victim was deaf and dumb every aspect of the incident has been interpreted by the PW-1 in evidence before the learned trial judge. It is pertinent to note that partition suit being RCS No.8 of 2006 was filed in February 2006 whereas the incident has occurred on 16.11.2005. The evidence given by PW-1 in interpreting the unfortunate incident as told by the victim is believable. Evidence given by the victim herself (PW-2) assumes importance in such a case. 16. Cross-examination of the victim shows that she is confronted with several questions, inter alia, pertaining to the partition dispute and the partition suit between her husband on the one hand and the father-in-law and accused on the other hand. In her cross- examination, victim has stated that the lis in the partition suit can come to an end, if the portion of the field claimed by her husband is delivered to him by accused and the father-in-law. This statement is unfortunately viewed by the defence to mean that victim has filed a false complaint. The answer given by the victim with respect to the issue of partition would have no nexus whatsoever with the heinous act of the accused. Evidence given by victim cannot be discarded on the basis of the above statement. Such answer given by victim can never be the basis for filing the complaint. 17. That apart, evidence given by PW-4 mother of the victim in understanding and narrating the incident as told to her by the victim also deserves to believed as the same corroborates the evidence given by PW-1 and PW-2. In this backdrop, medical evidence, therefore assumes significance. PW-3 - Dr. Vijaysingh Mundhe is the doctor who has examined the victim whereas PW-6 - Dr. Sandhya Patil has examined the accused. Certificate issued by PW-6 speaks for itself and cannot be disbelieved though she has examined the victim three days after the incident. This delay cannot be fatal for accepting the certificate. PW-3 - Dr. Vijaysingh Mundhe has examined the accused on 19.11.2005 i.e. within 24 hours after the incident and he has collected samples of his pubic hair, blood sample, nail clippings and sent them for chemical analysis. C.A. Report (Exhibit-45) clearly states that ‘human semen is detected on pubic hair of accused’. Though the victim is deaf and dumb, she gathered courage and informed her father-in-law first and thereafter her mother and without wasting time report was lodged. No married women would put at stake her life by making such a serious allegation against her family member unless 18. The Apex Court in the case of Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat1, in paragraph No.9 has held as under:- “9. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society. We must analyze the argument in support of the need for corroboration and subject it to relentless and remorseless cross- examination. And we must do so with a logical, and not an opinionated, eye in the light of probabilities with our feet firmly planted on the soil of India and with our eyes focussed on the Indian horizon………….” 19. The Apex Court in the above judgment has further held that a girl or woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. She would be conscious of the danger of being ostracized by the society or being looked down by the society including by her own family members, relatives, friends, and neighbors, she would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial house and happiness being shattered. 20. The Apex Court in the case of Sheikh Zakir Vs. State of Bihar2, has held that a reading of the deposition of the complainant shows that it has a ring of truth around. The absence of any injury on the person of the complainant may not itself discredit the statement of the complainant. Merely because the complainant was a helpless victim who was by force prevented from offering serious physical resistance, she cannot be disbelieved. The Apex Court has further held that if a conviction is based on the evidence of a prosecutrix without any corroboration it will not be illegal on that sole ground. 21. In the present case, testimony of PW-1, PW-2 and PW-4 if read together clearly prove the chain of circumstances and act of the accused. The defence has failed to place any cogent material on record. Therefore, taking into consideration the entire evidence on record, deposition of the prosecution witnesses and circumstances sought to be relied upon by the prosecution, we find that the prosecution has succeeded in proving its case beyond reasonable 22. In the case of Moti Lal Vs. State of M.P.3, the Supreme Court while considering a case under Section 376 IPC, referred to the observations of Vivian Bose, J. in Rameshwar Vs. The State of Rajasthan4, and has observed that a woman or a girl who is raped is not an accomplice; that corroboration is not the sine qua for conviction in a rape case; that it is settled law that the victim of sexual assault is not treated as accomplice and as such, her evidence does not require corroboration from any evidence including the evidence of a doctor; that in a given case even if the doctor who has examined the victim does not find sign of rape, it is no ground to disbelieve the sole testimony of the prosecutrix; that in normal course a victim of sexual assault does not like to disclose such offence even before her family members much less before public or before the police; the Indian women has tendency to conceal such offence because it involves her prestige as well as prestige of her family and only in few cases, the victim girl or the family members has courage to go before the police station and lodge a case. 22.1. In the present case, it is seen that the victim is a helpless, deaf and dumb married woman whose privacy and personal integrity has been shattered by the Appellant. In paragraph 8 of the above judgment, the Supreme Court has held as under:- “8. Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault -- it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Court, therefore, shoulders a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations. This position was highlighted in State of Punjab Vs. Gurmeet Singh5.” 22.2. Thus, from the above, it is seen that rape is not merely a physical assault but it destructs the whole personality of the helpless woman. In the present case, the victim is helpless handicapped woman and thus, the present case requires to be dealt with utmost sensitivity. As seen, the evidence of the prosecutrix in the present case inspires confidence and also stands corroborated in material particulars on the basis of testimony of the prosecution witnesses. 23. In view of the above discussion and findings, and on appreciation of the evidence, offence committed by the accused stands proved beyond reasonable doubt. The only question that now remains to be considered is as regards the sentence. Appellant has behaved in the most horrific manner and shocked our conscience. The magnitude of his offence is such that he has misused his position of trust and committed an act as alleged and proved on a helpless handicapped victim who could not speak or hear. We would have countenanced the leniency shown by the learned trial court, but in the facts of the present case, we are afraid that we cannot persuade ourselves to do so. We disagree with the findings returned by the learned trial court in so far as the award of sentence is concerned; learned trial court has clearly erred in awarding the sentence of 5 years rigorous imprisonment to the accused on the ground of taking into consideration the age of the accused and that the accused was facing trial for 6 - 7 years and attending the court; we do not agree with this reasoning as it is contrary to the statute. Unamended Section 376 IPC prior to 21.04.2018 as it stood referred to punishment for rape and stated that except in the cases provided by sub-section (2) whoever commits rape shall be punished with rigorous imprisonment of either description for a term which shall not be less than 7 years, but which may extend to imprisonment for life, and shall also be liable to fine. The present case is covered by the provisions of Section 376(1) IPC. In view of the statutory provision, once the trial court had come to the conclusion that the prosecution had squarely proved the offence of rape committed by the accused on the victim beyond reasonable doubt, then there is no reason to defer from the statutory provision and award a lesser sentence than what is prescribed by the statute. It is seen that the victim in the present case is a deaf and dumb woman. Ravishing such a handicapped/helpless woman and more specifically when she is alone inside the house and the entire case of the defence falling apart without proving the chain of circumstances, the sentence awarded by the learned trial court directing the accused to suffer rigorous imprisonment for 5 years and to pay fine of Rs.1,000/- and in default of payment of fine to undergo simple imprisonment for 1 month is therefore set aside to that extent and substituted by the (i) accused Madhukar Makaji Mudgul is hereby convicted in view of section 235 of the Criminal Procedure Code of the offence punishable under Section 376 IPC and is sentenced to suffer rigorous imprisonment for 7 years and to pay fine of Rs.25,000/-, and in default of payment of fine the accused shall further undergo simple imprisonment for 6 months; rest of the impugned judgment and order shall remain as it 24. Subject to the above modification of the sentence in the impugned judgment dated 13.02.2013 to the aforesaid extent, Criminal Appeal No.218 of 2013 filed by the accused fails and is 25. In view of the above directions, Criminal Appeal No.309 of 2014 filed by the State stands allowed by substituting the sentence awarded by the learned trial court to the Appellant from 5 years to 7 years rigorous imprisonment and fine from Rs.1,000/- to Rs.25,000/-, and in default of payment of fine simple imprisonment for 6 months. 26. Criminal Suo-Motu Petition No.2 of 2015 also stands disposed in view of the above directions in Criminal Appeal No.309 of 27. Appellant shall surrender before the learned Additional Sessions Judge, Niphad, District Nashik in order to undergo the remaining sentence as awarded within a period of four weeks from the date of uploading of this judgment. If the Appellant does not surrender within a period of four weeks as directed, non-bailable warrant be issued to effect arrest of Appellant to comply with the present order in accordance with law. 28. This Court had requested Advocate Mr. Ashish Satpute to espouse the cause of the Appellant in Criminal Appeal No. 218 of 2013; he has assisted the court in appreciating the evidence on record. His professional fee quantified as per rule to be paid to him by the
The Bombay High Court stated that an older age or showing up for all court dates cannot make a rapist's sentence lighter than the law's minimum. The court actually increased the jail time for a man who raped his deaf and mute sister-in-law in 2005. This man, her brother-in-law, attacked her when other family members were not home. He also threatened to hurt her blind husband, who was his own brother. The court stated that once the first court was very sure the man had committed rape, there was no reason to go against the law and give a sentence less than what the law clearly sets out. So, two judges, Justices AS Gadkari and Milind Jadhav, raised the 58-year-old man's jail sentence from five years to seven years. Seven years was the lowest possible sentence for rape under the Indian Penal Code (Section 376(1)) before changes were made in 2018. The judges also told him to turn himself in right away. The judges said the man "behaved in a terrible way and shocked our sense of right and wrong." They added that five years in jail and a Rs. 1,000 fine was not enough punishment for raping a woman who was disabled and helpless, especially when she was alone at home. The judges also stated that no woman would make such a serious accusation of rape just to get a share of property, unless the attack truly happened. If the incident hadn't occurred, there would be no reason for the victim to make such a claim. The High Court looked at three different cases at the same time: the man's appeal against being found guilty, the government's appeal asking for a tougher sentence, and the High Court's own decision to review and possibly increase the man's sentence. The man was found guilty in 2013 of rape and threatening someone (under sections 376 and 503 of the Indian Penal Code). For the incident that happened in 2005, he was sentenced to five years in prison and a fine of Rs. 1,000. The lawyers trying to prove guilt argued that on November 16, 2005, between 9 and 10 PM, the man raped the woman in her home. Other family members, including the man's wife and in-laws, were not there. The woman said she tried to tell her father-in-law, but he did not listen. Instead, he took her to her mother's house. A police report was filed only after the victim told her mother, who then went to the police. In the High Court, lawyer Ashish Satpute argued for the man. He said the victim made a false complaint to blame the man, pushed by her mother, to divide their shared family property. He claimed the man was at a religious gathering with other family members. He also pointed out that there was a three-day delay in filing the police report, that doctors found no injuries on the victim, and that the police investigator was not questioned in court. The lawyers trying to prove guilt argued that on the day of the incident, only the victim, her husband, and the brother-in-law were at home. They also said that medical proof and other facts surrounding the case showed the man was guilty. However, the victim told the first court that she had surgery to remove her uterus and had been living at her mother's house for six months. She had only returned to her in-laws' home 15 days before the incident. She also said her husband was sleeping outside because she was supposed to avoid sex due to her surgery. The judges believed what the victim, her mother, and the interpreter (who helped the victim speak in court) said. The court did not accept the defense's argument that a lawsuit over dividing property was the real reason for the accusations, especially because that lawsuit was filed a year after the rape incident.
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the facts and circumstances of the case." 2. The writ applicant herein seeks direction upon the respondent no.2 - Registrar of Marriages ('Registrar") to correct the date of marriage in the writ applicant's marriage certificate bearing no.WZ/2021/2522 dated 26.07.2021. The writ applicant by way of this writ application seeking change in the marriage certificate from 17.07.2021 to 19.12.2021. 3. Mr. Anand Patel, the learned advocate appearing for the writ applicant stated that the writ applicant is living in Surat and her marriage was scheduled to take place on 17.07.2021 with Mr. Kushal Batukkumar Mishtri, who is a permanent residence permit holder of Germany and is working there as a Technical Development Engineer. However, due to pandemic of COVID-19 and the restrictions imposed by the Government on public gathering, the marriage was scheduled in a banquet hall with a very small number of relatives attending the marriage. Therefore, the marriage invitation was also not prepared. Since, the marriage ceremony was to be held in a banquet hall (i.e. in a closed premises) in presence of very few relatives, they performed the ceremonies of exchanging garlands, tying mangalsutra and applying sindhoor, copy of the photographs are duly annexed at Annexure-4 of the writ application. However, the ceremony of "datta homa" and "Saptapadi" (i.e. taking seven steps around the sacred fire) were not performed. It was mutually decided by the family members of bride and groom that after the cases of COVID-19 decreases, the family would organize another function in a party plot whereat the ceremony of "datta homa" and "Saptapadi" would be performed in presence of various relatives and friends. The said subsequent function was scheduled to be held on 19.12.2021 whereat the ceremonies of "datta homa" and "saptapadi" were performed. 4. Mr. Anand Patel, the learned advocate appearing for the writ applicant has relied on the order passed by the Co-ordinate Bench of this Court in Special Civil Application No.19647 of 2019 by order dated 09.01.2020. The Co-ordinate Bench of this Court in paragraph Nos. 13, 14 and 15 has held and observed "[13] In the situation as arisen in the present case, it cannot be said that the respondent authority is at fault in taking the impugned decision. The respondent No.2 was within his power to issue the certificate and was also within his power to pass the impugned order dated 27.09.2019 as there is no provision of law which can enable the respondent No.2 to take cognizance of the facts prevailing and to entertain an application of the petitioner to rectify the marriage certificate. At this stage, the Court is bound to invoke Article 226 of the Constitution of India to overcome the situation faced by the petitioner which prevents the petitioner from co-habiting with her husband in Germany. [14] The petitioner is left without remedy as on the one hand it cannot be said that respondent No.2 has fallen in error for invoking writ of mandamus, on the other hand, the date of marriage in the marriage certificate does not reflect the date of marriage accordingly. This is attributable to the factual prevalent circumstances in which petitioner has no role to play. It is this situation which the Court deems it fit to invoke Article 226 of the Constitution of India for remedy a situation. [15] In the peculiar facts and circumstances of the case, the Court deems it to be a fit case to interfere and direct the respondent No.2 to quash and set aside the impugned order dated 27.09.2019 and direct the respondent No.2 to cancel the certificate of marriage No.1727 dated 18.12.2017. At the same time, permitted the petitioner to make a fresh application with all the necessary details about the ceremonisation of marriage on 27.01.2018. The respondent No.2 shall consider such application afresh and treat the same to be made in time without being influenced by the fact of issuing earlier certificate as the same is treated to be cancelled and the decision dated 27.09.2019, which is ordered to be quashed and set aside and issue fresh certificate of marriage." 5. Mr. C.J. Vin, the learned advocate appearing for the respondent No.2 authority submitted that if an application seeking change in the date in marriage certificate would be preferred before the respondent authority, the authority would decide the same within a period of four weeks from the receipt of this 6. Having heard the learned advocates appearing for the parties. 7. In the facts and circumstances of the present case, this Court is inclined to direct the respondent no.2 under exercising its extraordinary jurisdiction under Article 226 of the Constitution of India to consider the application which would be preferred by the writ applicant seeking change in the date of marriage certificate from 17.07.2021 to 19.12.2021, in absence of any provisions of law enabling the respondent no.2 to rectify the marriage certificate. The writ applicant is directed to prefer afresh application within a period of one week before the respondent No.2 - authority seeking change in the memorandum of marriage from 17.07.2021 to 19.12.2021. Once such an application is preferred by the writ applicant, the respondent authority is directed to carry out necessary changes considering the said application and issued a certificate with the changed date in the marriage certificate as 19.12.2021 in the marriage certificate. Consequently, the earlier marriage certificate would be quashed and set-aside. Once the fresh marriage certificate is issued, the earlier certificate would stands cancelled. The said exercise be undertaken by the respondent no.2 authority preferably within a period of two weeks. 8. With the aforesaid direction, the present writ applicant stands allowed to the aforesaid extent. Direct service, Today is permitted.
The Gujarat High Court approved a special request from a couple. They asked the court to direct the Registrar of Marriages to consider their application for a new marriage certificate. This new certificate would show the date of their grand wedding, which included the 'saptapadi' ritual. They wanted this date instead of an earlier one when they had a small ceremony and only exchanged garlands with a few guests. Because of the COVID-19 pandemic and government rules limiting public gatherings, the couple got married with only a very small number of relatives present. They did not prepare wedding invitations. During this ceremony, they only exchanged garlands, tied a 'mangalsutra' (a sacred necklace), and applied 'sindhoor' (a red powder). However, they did not perform the "datta homa" or "Saptapadi" rituals, which involve taking seven steps around a sacred fire. Later, on December 19, 2021, the couple organized a grand wedding. During this event, they performed the "datta homa" and "saptapadi" rituals. Because of this, the couple had asked to change the date on their marriage certificate from July 17, 2021, to December 19, 2021. The couple pointed to a previous ruling by another judge of the High Court in a similar situation. In that earlier case, the High Court had recognized the difficulties a woman faced living with her husband in Germany. The court had then allowed that couple to submit a new application to change their marriage date. Meanwhile, the government officials involved in the case assured the court that if the couple asked for a change in the marriage certificate date, the officials would make a decision within four weeks. Because of all these reasons, the judge decided to use their special authority, known as "extraordinary jurisdiction" under Article 226. The court ordered the officials to change the marriage date from July 17, 2021, to December 19, 2021. The judge also ruled that the earlier marriage certificate must be canceled and no longer valid.
the facts and circumstances of the case." 2. The writ applicant herein seeks direction upon the respondent no.2 - Registrar of Marriages ('Registrar") to correct the date of marriage in the writ applicant's marriage certificate bearing no.WZ/2021/2522 dated 26.07.2021. The writ applicant by way of this writ application seeking change in the marriage certificate from 17.07.2021 to 19.12.2021. 3. Mr. Anand Patel, the learned advocate appearing for the writ applicant stated that the writ applicant is living in Surat and her marriage was scheduled to take place on 17.07.2021 with Mr. Kushal Batukkumar Mishtri, who is a permanent residence permit holder of Germany and is working there as a Technical Development Engineer. However, due to pandemic of COVID-19 and the restrictions imposed by the Government on public gathering, the marriage was scheduled in a banquet hall with a very small number of relatives attending the marriage. Therefore, the marriage invitation was also not prepared. Since, the marriage ceremony was to be held in a banquet hall (i.e. in a closed premises) in presence of very few relatives, they performed the ceremonies of exchanging garlands, tying mangalsutra and applying sindhoor, copy of the photographs are duly annexed at Annexure-4 of the writ application. However, the ceremony of "datta homa" and "Saptapadi" (i.e. taking seven steps around the sacred fire) were not performed. It was mutually decided by the family members of bride and groom that after the cases of COVID-19 decreases, the family would organize another function in a party plot whereat the ceremony of "datta homa" and "Saptapadi" would be performed in presence of various relatives and friends. The said subsequent function was scheduled to be held on 19.12.2021 whereat the ceremonies of "datta homa" and "saptapadi" were performed. 4. Mr. Anand Patel, the learned advocate appearing for the writ applicant has relied on the order passed by the Co-ordinate Bench of this Court in Special Civil Application No.19647 of 2019 by order dated 09.01.2020. The Co-ordinate Bench of this Court in paragraph Nos. 13, 14 and 15 has held and observed "[13] In the situation as arisen in the present case, it cannot be said that the respondent authority is at fault in taking the impugned decision. The respondent No.2 was within his power to issue the certificate and was also within his power to pass the impugned order dated 27.09.2019 as there is no provision of law which can enable the respondent No.2 to take cognizance of the facts prevailing and to entertain an application of the petitioner to rectify the marriage certificate. At this stage, the Court is bound to invoke Article 226 of the Constitution of India to overcome the situation faced by the petitioner which prevents the petitioner from co-habiting with her husband in Germany. [14] The petitioner is left without remedy as on the one hand it cannot be said that respondent No.2 has fallen in error for invoking writ of mandamus, on the other hand, the date of marriage in the marriage certificate does not reflect the date of marriage accordingly. This is attributable to the factual prevalent circumstances in which petitioner has no role to play. It is this situation which the Court deems it fit to invoke Article 226 of the Constitution of India for remedy a situation. [15] In the peculiar facts and circumstances of the case, the Court deems it to be a fit case to interfere and direct the respondent No.2 to quash and set aside the impugned order dated 27.09.2019 and direct the respondent No.2 to cancel the certificate of marriage No.1727 dated 18.12.2017. At the same time, permitted the petitioner to make a fresh application with all the necessary details about the ceremonisation of marriage on 27.01.2018. The respondent No.2 shall consider such application afresh and treat the same to be made in time without being influenced by the fact of issuing earlier certificate as the same is treated to be cancelled and the decision dated 27.09.2019, which is ordered to be quashed and set aside and issue fresh certificate of marriage." 5. Mr. C.J. Vin, the learned advocate appearing for the respondent No.2 authority submitted that if an application seeking change in the date in marriage certificate would be preferred before the respondent authority, the authority would decide the same within a period of four weeks from the receipt of this 6. Having heard the learned advocates appearing for the parties. 7. In the facts and circumstances of the present case, this Court is inclined to direct the respondent no.2 under exercising its extraordinary jurisdiction under Article 226 of the Constitution of India to consider the application which would be preferred by the writ applicant seeking change in the date of marriage certificate from 17.07.2021 to 19.12.2021, in absence of any provisions of law enabling the respondent no.2 to rectify the marriage certificate. The writ applicant is directed to prefer afresh application within a period of one week before the respondent No.2 - authority seeking change in the memorandum of marriage from 17.07.2021 to 19.12.2021. Once such an application is preferred by the writ applicant, the respondent authority is directed to carry out necessary changes considering the said application and issued a certificate with the changed date in the marriage certificate as 19.12.2021 in the marriage certificate. Consequently, the earlier marriage certificate would be quashed and set-aside. Once the fresh marriage certificate is issued, the earlier certificate would stands cancelled. The said exercise be undertaken by the respondent no.2 authority preferably within a period of two weeks. 8. With the aforesaid direction, the present writ applicant stands allowed to the aforesaid extent. Direct service, Today is permitted.
The Gujarat High Court approved a special request from a couple. They asked the court to direct the Registrar of Marriages to consider their application for a new marriage certificate. This new certificate would show the date of their grand wedding, which included the 'saptapadi' ritual. They wanted this date instead of an earlier one when they had a small ceremony and only exchanged garlands with a few guests. Because of the COVID-19 pandemic and government rules limiting public gatherings, the couple got married with only a very small number of relatives present. They did not prepare wedding invitations. During this ceremony, they only exchanged garlands, tied a 'mangalsutra' (a sacred necklace), and applied 'sindhoor' (a red powder). However, they did not perform the "datta homa" or "Saptapadi" rituals, which involve taking seven steps around a sacred fire. Later, on December 19, 2021, the couple organized a grand wedding. During this event, they performed the "datta homa" and "saptapadi" rituals. Because of this, the couple had asked to change the date on their marriage certificate from July 17, 2021, to December 19, 2021. The couple pointed to a previous ruling by another judge of the High Court in a similar situation. In that earlier case, the High Court had recognized the difficulties a woman faced living with her husband in Germany. The court had then allowed that couple to submit a new application to change their marriage date. Meanwhile, the government officials involved in the case assured the court that if the couple asked for a change in the marriage certificate date, the officials would make a decision within four weeks. Because of all these reasons, the judge decided to use their special authority, known as "extraordinary jurisdiction" under Article 226. The court ordered the officials to change the marriage date from July 17, 2021, to December 19, 2021. The judge also ruled that the earlier marriage certificate must be canceled and no longer valid.
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1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 09.09.2021 passed by the High Court of Judicature at Bombay in Writ Petition No. 3118 of 2021, by which the High Court has dismissed the said writ petition preferred by the appellants herein and has confirmed the judgment and order dated 25.06.2019 passed by the Maharashtra Administrative Tribunal, Mumbai (hereinafter referred to as the ’Tribunal’), by which the Tribunal allowed Original Application No. 238/2016 and quashed and set aside orders dated 06.10.2015 and 21.11.2015, thereby down-grading his pay scale and pension, the State of Maharashtra and others have preferred the present appeal. 2. That respondent no.1 herein was initially appointed on 11.05.1982 as a Technical Assistant on work charge basis and continued on the said post till absorption. By G.R. dated 26.09.1989, 25 posts of Civil Engineering Assistants were created and respondent no.1 herein was absorbed on one of the said posts. Respondent no.1 was granted the benefit of first Time Bound Promotion (for short, ‘TBP’) considering his initial period of appointment of 1982 on completion of twelve years of service and thereafter he was also granted the benefit of second TBP on completion of twenty four years of service. Respondent No.1 retired from service on 31.05.2013. After his retirement, pension proposal was forwarded to the Office of the Accountant General for grant of pension on the basis of the last pay drawn at the time of retirement. 2.1 The Office of the Accountant General raised an objection for grant of benefit of first TBP to respondent no.1 considering his date of initial appointment dated 11.05.1982, on the basis of the letter issued by Water Resources Department, Government of Maharashtra on 19.05.2004. It was found that respondent no.1 was wrongly granted the first TBP considering his initial period of appointment of 1982 and it was found that he was entitled to the benefit from the date of his absorption in the year 1989 only. Vide orders dated 06.10.2015 and 21.11.2015, his pay scale was down-graded and consequently his pension was also re-fixed. 2.2 Feeling aggrieved and dissatisfied with orders dated 06.10.2015 and 21.11.2015 down-grading his pay scale and pension, respondent no.1 approached the Tribunal by way of Original Application No. 238/2016. By judgment and order dated 25.06.2019, the Tribunal allowed the said original application and set aside orders dated 06.10.2015 and 21.11.2015 and directed the appellants herein to release the pension of respondent no.1 as per his pay scale on the date of his retirement. While passing the aforesaid order, the Tribunal observed and held that respondent no.1 was granted the first TBP considering his initial period of appointment of 1982 pursuant to the approval granted by the Government vide order dated 18.03.1998 and the subsequent approval of the Finance Department, and therefore, it cannot be said that the benefit of the first TBP was granted mistakenly. The Tribunal also observed that the services rendered by respondent no.1 on the post of Technical Assistant (for the period 11.05.1982 to 26.09.1989) cannot be wiped out from consideration while granting the benefit of first TBP. 2.3 Feeling aggrieved and dissatisfied with the judgment and order passed by the Tribunal, quashing and setting aside orders dated 06.10.2015 and 21.11.2015, refixing the pay scale and pension of respondent no.1, the appellants herein preferred writ petition before the High Court. By the impugned judgment and order, the High Court has dismissed the said writ petition. Hence, the present appeal. 3. We have heard Mr. Sachin Patil, learned counsel appearing on behalf of the appellants and Mr. Sandeep Sudhakar Deshmukh, learned counsel appearing on behalf of the contesting respondent. 3.1 At the outset, it is required to be noted and it is not in dispute that respondent no.1 was initially appointed on 11.05.1982 as a Technical Assistant on work charge basis. It is also not in dispute that thereafter he was absorbed in the year 1989 on the newly created post of Civil Engineering Assistant, which carried a different pay scale. Therefore, when the contesting respondent was absorbed in the year 1989 on the newly created post of Civil Engineering Assistant which carried a different pay scale, he shall be entitled to the first TBP on completion of twelve years of service from the date of his absorption in the post of Civil Engineering Assistant. The services rendered by the contesting respondent as Technical Assistant on work charge basis from 11.05.1982 could not have been considered for the grant of benefit of first TBP. If the contesting respondent would have been absorbed on the same post of Technical Assistant on which he was serving on work charge basis, the position may have been different. The benefit of TBP scheme shall be applicable when an employee has worked for twelve years in the same post and in the same pay scale. 4. In the present case, as observed hereinabove, his initial appointment in the year 1982 was in the post of Technical Assistant on work charge basis, which was altogether a different post than the newly created post of Civil Engineering Assistant in which he was absorbed in the year 1989, which carried a different pay scale. Therefore, the department was right in holding that the contesting respondent was entitled to the first TBP on completion of twelve years from the date of his absorption in the year 1989 in the post of Civil Engineering Assistant. Therefore both, the High Court as well as the Tribunal have erred in observing that as the first TBP was granted on the approval of the Government and the Finance Department, subsequently the same cannot be modified and/or withdrawn. Merely because the benefit of the first TBP was granted after the approval of the Department cannot be a ground to continue the same, if ultimately it is found that the contesting respondent was entitled to the first TBP on completion of twelve years of service only from the year 1989. Therefore both, the High Court as well as the Tribunal have committed a grave error in quashing and setting aside the revision of pay scale and the revision in pension, which were on re-fixing the date of grant of first TBP from the date of his absorption in the year 1989 as Civil Engineering Assistant. 5. However, at the same time, as the grant of first TBP considering his initial period of appointment of 1982 was not due to any misrepresentation by the contesting respondent and on the contrary, the same was granted on the approval of the Government and the Finance Department and since the downward revision of the pay scale was after the retirement of the respondent, we are of the opinion that there shall not be any recovery on re-fixation of the pay scale. However, the respondent shall be entitled to the pension on the basis of the re-fixation of the pay scale on grant of first TBP from the year 1989, i.e., from the date of his absorption as Civil Engineering Assistant. 6. In view of the above and for the reasons stated above, the present appeal succeeds in part. The impugned judgment and order passed by the High Court as well as that of the Tribunal quashing and setting aside orders dated 6.10.2015 and 21.11.2015 down-grading the pay scale and pension of the contesting respondent are hereby quashed and set aside. It is observed and held that the contesting respondent shall be entitled to the first TBP on completion of twelve years from the year 1989, i.e., from the date on which he was absorbed on the post of Civil Engineering Assistant and his pay scale and pension are to be revised accordingly. However, it is observed and directed that on re-fixation of his pay scale and pension, as observed hereinabove, there shall not be any recovery of the amount already paid to the contesting respondent, while granting the first TBP considering his initial appointment from the year 1982. 7. The present appeal is partly allowed to the aforesaid extent. No
The Supreme Court has decided that if an employee worked on a temporary, project-based job, that time cannot be counted towards their first promotion given after a set number of years. This applies if the employee then gets a permanent job with a different salary level. Two judges also noted that this type of promotion, called a Time Bound Promotion, only applies when an employee has worked for twelve years in the exact same job and with the exact same salary. This case involved the State of Maharashtra and an employee named Madhukar Antu Patil. The judges were looking at a "civil appeal." This means one party, in this case, the State of Maharashtra, asked a higher court to review a decision from a lower court. The State disagreed with a ruling made by the Bombay High Court, which had agreed with an earlier decision from the Maharashtra Administrative Tribunal in Mumbai. The Tribunal had previously canceled government decisions that had lowered the employee's salary and retirement payments. The main argument in this case was about an employee who worked as a Technical Assistant on a temporary project from 1982. In 1989, he got a permanent job as a Civil Engineering Assistant, but with a different salary. The question was: should he get his Time Bound Promotion (TBP) after twelve years, counting from 1982 (his first temporary job) or from 1989 (when he got the permanent job)? The Administrative Tribunal had stopped the lowering of his salary and directed that he get the TBP, counting his service from 1982. The High Court agreed with this decision. So, the State brought the case to the Supreme Court. The Supreme Court noted that the employee got his permanent job as a Civil Engineering Assistant, which was a new position with a different salary. Because of this, the Court decided that this employee would get his first TBP after twelve years, starting from 1989. That is, it would count from the day he got his permanent Civil Engineering Assistant job. His salary and retirement payments would be changed to reflect this. Because of this decision, the Supreme Court canceled the previous rulings by both the High Court and the Tribunal. These earlier rulings had stopped the employee's salary and retirement payments from being lowered. However, the judges ordered that even though the employee's salary and retirement payments would be changed, he would not have to pay back any money he had already received. This decision was made because he got his first TBP (counting from 1982) with the approval of the Government and the Finance Department. He did not mislead anyone to get it. The judges pointed out that the situation might have been different if the employee had gotten a permanent job in the same role (Technical Assistant) that he held temporarily. The High Court had said that since the Government and Finance Department approved the first TBP, it could not be changed or taken away. But the Supreme Court judges disagreed. They said that just because a department approved a benefit doesn't mean it has to continue, especially if it was based on an incorrect understanding of the rules. The judges stated clearly that everyone agreed on these facts: The employee first started working on May 11, 1982, as a Technical Assistant in a temporary, project-based role. It was also agreed that in 1989, he got a permanent job as a Civil Engineering Assistant, which was a new position with a different salary. Because of this, when the employee got his permanent job in 1989 as a Civil Engineering Assistant with a different salary, he would get his first TBP after twelve years, counting from 1989. The time he spent working as a Technical Assistant on a temporary project from 1982 could not be counted for this first promotion. The judges also repeated that if he had gotten a permanent job in the same role as Technical Assistant that he held temporarily, the outcome might have been different. They emphasized that a TBP only applies when an employee has worked for twelve years in the same job and with the same salary.
1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 09.09.2021 passed by the High Court of Judicature at Bombay in Writ Petition No. 3118 of 2021, by which the High Court has dismissed the said writ petition preferred by the appellants herein and has confirmed the judgment and order dated 25.06.2019 passed by the Maharashtra Administrative Tribunal, Mumbai (hereinafter referred to as the ’Tribunal’), by which the Tribunal allowed Original Application No. 238/2016 and quashed and set aside orders dated 06.10.2015 and 21.11.2015, thereby down-grading his pay scale and pension, the State of Maharashtra and others have preferred the present appeal. 2. That respondent no.1 herein was initially appointed on 11.05.1982 as a Technical Assistant on work charge basis and continued on the said post till absorption. By G.R. dated 26.09.1989, 25 posts of Civil Engineering Assistants were created and respondent no.1 herein was absorbed on one of the said posts. Respondent no.1 was granted the benefit of first Time Bound Promotion (for short, ‘TBP’) considering his initial period of appointment of 1982 on completion of twelve years of service and thereafter he was also granted the benefit of second TBP on completion of twenty four years of service. Respondent No.1 retired from service on 31.05.2013. After his retirement, pension proposal was forwarded to the Office of the Accountant General for grant of pension on the basis of the last pay drawn at the time of retirement. 2.1 The Office of the Accountant General raised an objection for grant of benefit of first TBP to respondent no.1 considering his date of initial appointment dated 11.05.1982, on the basis of the letter issued by Water Resources Department, Government of Maharashtra on 19.05.2004. It was found that respondent no.1 was wrongly granted the first TBP considering his initial period of appointment of 1982 and it was found that he was entitled to the benefit from the date of his absorption in the year 1989 only. Vide orders dated 06.10.2015 and 21.11.2015, his pay scale was down-graded and consequently his pension was also re-fixed. 2.2 Feeling aggrieved and dissatisfied with orders dated 06.10.2015 and 21.11.2015 down-grading his pay scale and pension, respondent no.1 approached the Tribunal by way of Original Application No. 238/2016. By judgment and order dated 25.06.2019, the Tribunal allowed the said original application and set aside orders dated 06.10.2015 and 21.11.2015 and directed the appellants herein to release the pension of respondent no.1 as per his pay scale on the date of his retirement. While passing the aforesaid order, the Tribunal observed and held that respondent no.1 was granted the first TBP considering his initial period of appointment of 1982 pursuant to the approval granted by the Government vide order dated 18.03.1998 and the subsequent approval of the Finance Department, and therefore, it cannot be said that the benefit of the first TBP was granted mistakenly. The Tribunal also observed that the services rendered by respondent no.1 on the post of Technical Assistant (for the period 11.05.1982 to 26.09.1989) cannot be wiped out from consideration while granting the benefit of first TBP. 2.3 Feeling aggrieved and dissatisfied with the judgment and order passed by the Tribunal, quashing and setting aside orders dated 06.10.2015 and 21.11.2015, refixing the pay scale and pension of respondent no.1, the appellants herein preferred writ petition before the High Court. By the impugned judgment and order, the High Court has dismissed the said writ petition. Hence, the present appeal. 3. We have heard Mr. Sachin Patil, learned counsel appearing on behalf of the appellants and Mr. Sandeep Sudhakar Deshmukh, learned counsel appearing on behalf of the contesting respondent. 3.1 At the outset, it is required to be noted and it is not in dispute that respondent no.1 was initially appointed on 11.05.1982 as a Technical Assistant on work charge basis. It is also not in dispute that thereafter he was absorbed in the year 1989 on the newly created post of Civil Engineering Assistant, which carried a different pay scale. Therefore, when the contesting respondent was absorbed in the year 1989 on the newly created post of Civil Engineering Assistant which carried a different pay scale, he shall be entitled to the first TBP on completion of twelve years of service from the date of his absorption in the post of Civil Engineering Assistant. The services rendered by the contesting respondent as Technical Assistant on work charge basis from 11.05.1982 could not have been considered for the grant of benefit of first TBP. If the contesting respondent would have been absorbed on the same post of Technical Assistant on which he was serving on work charge basis, the position may have been different. The benefit of TBP scheme shall be applicable when an employee has worked for twelve years in the same post and in the same pay scale. 4. In the present case, as observed hereinabove, his initial appointment in the year 1982 was in the post of Technical Assistant on work charge basis, which was altogether a different post than the newly created post of Civil Engineering Assistant in which he was absorbed in the year 1989, which carried a different pay scale. Therefore, the department was right in holding that the contesting respondent was entitled to the first TBP on completion of twelve years from the date of his absorption in the year 1989 in the post of Civil Engineering Assistant. Therefore both, the High Court as well as the Tribunal have erred in observing that as the first TBP was granted on the approval of the Government and the Finance Department, subsequently the same cannot be modified and/or withdrawn. Merely because the benefit of the first TBP was granted after the approval of the Department cannot be a ground to continue the same, if ultimately it is found that the contesting respondent was entitled to the first TBP on completion of twelve years of service only from the year 1989. Therefore both, the High Court as well as the Tribunal have committed a grave error in quashing and setting aside the revision of pay scale and the revision in pension, which were on re-fixing the date of grant of first TBP from the date of his absorption in the year 1989 as Civil Engineering Assistant. 5. However, at the same time, as the grant of first TBP considering his initial period of appointment of 1982 was not due to any misrepresentation by the contesting respondent and on the contrary, the same was granted on the approval of the Government and the Finance Department and since the downward revision of the pay scale was after the retirement of the respondent, we are of the opinion that there shall not be any recovery on re-fixation of the pay scale. However, the respondent shall be entitled to the pension on the basis of the re-fixation of the pay scale on grant of first TBP from the year 1989, i.e., from the date of his absorption as Civil Engineering Assistant. 6. In view of the above and for the reasons stated above, the present appeal succeeds in part. The impugned judgment and order passed by the High Court as well as that of the Tribunal quashing and setting aside orders dated 6.10.2015 and 21.11.2015 down-grading the pay scale and pension of the contesting respondent are hereby quashed and set aside. It is observed and held that the contesting respondent shall be entitled to the first TBP on completion of twelve years from the year 1989, i.e., from the date on which he was absorbed on the post of Civil Engineering Assistant and his pay scale and pension are to be revised accordingly. However, it is observed and directed that on re-fixation of his pay scale and pension, as observed hereinabove, there shall not be any recovery of the amount already paid to the contesting respondent, while granting the first TBP considering his initial appointment from the year 1982. 7. The present appeal is partly allowed to the aforesaid extent. No
The Supreme Court has decided that if an employee worked on a temporary, project-based job, that time cannot be counted towards their first promotion given after a set number of years. This applies if the employee then gets a permanent job with a different salary level. Two judges also noted that this type of promotion, called a Time Bound Promotion, only applies when an employee has worked for twelve years in the exact same job and with the exact same salary. This case involved the State of Maharashtra and an employee named Madhukar Antu Patil. The judges were looking at a "civil appeal." This means one party, in this case, the State of Maharashtra, asked a higher court to review a decision from a lower court. The State disagreed with a ruling made by the Bombay High Court, which had agreed with an earlier decision from the Maharashtra Administrative Tribunal in Mumbai. The Tribunal had previously canceled government decisions that had lowered the employee's salary and retirement payments. The main argument in this case was about an employee who worked as a Technical Assistant on a temporary project from 1982. In 1989, he got a permanent job as a Civil Engineering Assistant, but with a different salary. The question was: should he get his Time Bound Promotion (TBP) after twelve years, counting from 1982 (his first temporary job) or from 1989 (when he got the permanent job)? The Administrative Tribunal had stopped the lowering of his salary and directed that he get the TBP, counting his service from 1982. The High Court agreed with this decision. So, the State brought the case to the Supreme Court. The Supreme Court noted that the employee got his permanent job as a Civil Engineering Assistant, which was a new position with a different salary. Because of this, the Court decided that this employee would get his first TBP after twelve years, starting from 1989. That is, it would count from the day he got his permanent Civil Engineering Assistant job. His salary and retirement payments would be changed to reflect this. Because of this decision, the Supreme Court canceled the previous rulings by both the High Court and the Tribunal. These earlier rulings had stopped the employee's salary and retirement payments from being lowered. However, the judges ordered that even though the employee's salary and retirement payments would be changed, he would not have to pay back any money he had already received. This decision was made because he got his first TBP (counting from 1982) with the approval of the Government and the Finance Department. He did not mislead anyone to get it. The judges pointed out that the situation might have been different if the employee had gotten a permanent job in the same role (Technical Assistant) that he held temporarily. The High Court had said that since the Government and Finance Department approved the first TBP, it could not be changed or taken away. But the Supreme Court judges disagreed. They said that just because a department approved a benefit doesn't mean it has to continue, especially if it was based on an incorrect understanding of the rules. The judges stated clearly that everyone agreed on these facts: The employee first started working on May 11, 1982, as a Technical Assistant in a temporary, project-based role. It was also agreed that in 1989, he got a permanent job as a Civil Engineering Assistant, which was a new position with a different salary. Because of this, when the employee got his permanent job in 1989 as a Civil Engineering Assistant with a different salary, he would get his first TBP after twelve years, counting from 1989. The time he spent working as a Technical Assistant on a temporary project from 1982 could not be counted for this first promotion. The judges also repeated that if he had gotten a permanent job in the same role as Technical Assistant that he held temporarily, the outcome might have been different. They emphasized that a TBP only applies when an employee has worked for twelve years in the same job and with the same salary.
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1. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court of Judicature for Rajasthan at Jaipur passed in D.B. Civil Miscellaneous Appeal No. 2845 of 2018, by which the Division Bench of the High Court has dismissed the said appeal preferred by the appellant herein and has confirmed the judgment and decree passed by the learned Family Court dissolving the marriage between the appellant and the respondent on the ground of cruelty and desertion by the appellant herein, the original appellant-wife has preferred the present appeal. 2. The facts leading to the present appeal in nutshell are as under: That the marriage between the appellant and the respondent was solemnised on 16.11.2005. That the respondent herein was serving as an Army Officer as Major. That out of the said wedlock, the appellant and the respondent had one son Pranav Tyagi who is aged 13 years presently being born on 23.2.2008. That the dispute arose between the husband and the wife. That the appellant-wife filed number of complaints against the respondent-husband before his employer – Army Authorities including the extra-marital affairs of the respondent-husband. An enquiry was initiated by the Army Authorities against the respondent- husband for extra-marital affairs on the basis of the complaints dated 29.09.2014 and 5.2.2015 made by the appellant-wife. In the enquiry, the respondent-husband was exonerated. 2.1 That the respondent-husband filed Case No. 1496/2016 against the appellant-wife before the learned Family Court, Jaipur on 25.11.2014 seeking a decree of divorce and dissolution of marriage on the ground of cruelty and desertion by the appellant-wife. That, in the meantime and since 2012, the Army Authorities were deducting 27.5% of the salary per month from the pay and allowances of the respondent-husband as per Section 90(1) of the Army Act, 1950. That by judgment and decree dated 19.05.2018, the learned Family Court passed a decree for dissolution of marriage between the appellant and the respondent on the ground of cruelty and desertion by the appellant-wife. 2.2 Feeling aggrieved and dissatisfied with the judgment and decree passed by the learned Family Court dissolving the marriage between the appellant and the respondent, the appellant herein preferred an appeal before the High Court being D.B. Civil Miscellaneous Appeal No. 2845/2018. By the impugned judgment and order, the High Court has dismissed the said appeal and has confirmed the judgment and decree passed by the learned family Court. Hence, the present appeal is at the instance of the appellant-wife. 3. We have heard Ms. Neela Gokhale, learned Advocate appearing on behalf of the appellant. It is very unfortunate that though served, the respondent-husband has not appeared in the present appeal and it is reported that despite the order of status quo passed by this Court vide interim order dated 22.11.2019, the respondent-husband has re-married. 3.1 Number of submissions have been made by the learned Advocate appearing on behalf of the appellant-wife on the findings recorded by the learned Family Court as well as the High Court on cruelty and desertion by the appellant-wife. It is also the case on behalf of the appellant-wife that subsequently and despite the order of status quo passed by this Court on 22.11.2019, the respondent-husband has re-married and that is why he is not appearing in the present proceedings. 3.2 It is urged on behalf of the appellant-wife that in the alternative, the findings against the appellant-wife on “cruelty” may be expunged and marriage may be continued to remain dissolved on account of irretrievable breakdown of marriage since both wife and husband are residing separately since May, 2011 and the respondent-husband has already re-married. However, it is submitted to direct the respondent- husband to pay maintenance to the appellant-wife and minor son – Pranav as they have no means of maintaining themselves and have no independent income to sustain themselves. 3.3 It is submitted that since December, 2019, the appellant-wife and her son are not being paid any maintenance which they were receiving from the Army Authorities as per order passed by the Army Authorities dated 15.11.2012. It is submitted that the appellant and her son were getting Rs. 40,000/- towards maintenance which they received from 2012 till November, 2019. It is therefore prayed to direct the respondent- husband to pay the maintenance to the appellant and her minor son. 4. Having heard learned counsel for the appellant-wife and having gone through the findings recorded by the learned Family Court as well as by the High Court, on “cruelty” and “desertion” by the appellant-wife, we are of the view that there are concurrent findings recorded by the learned Family Court as well as the High Court on “cruelty” and “desertion” by the appellant-wife, which as such are on appreciation of evidence on record. The appellant-wife made number of complaints against the respondent-husband to his employer – Army Authorities making serious allegations of extra-marital affairs. On the basis of the complaints made by the appellant-wife, an enquiry was initiated by the Army Authorities and the Army Authorities exonerated the respondent- husband of the allegation of extra-marital affairs. 5. However, considering the fact that both, the appellant-wife and the respondent-husband are not staying together since May, 2011 and therefore it can be said that there is irretrievable breakdown of marriage between them. It is also reported that the respondent-husband has already re-married. Therefore, no useful purpose shall be served to further enter into the merits of the findings recorded by the courts below on “cruelty” and “desertion” by the appellant-wife. Therefore, in the facts and circumstances of the case and in exercise of powers under Article 142 of the Constitution of India, the decree passed by the learned Family Court, confirmed by the High Court, dissolving the marriage between the appellant-wife and the respondent-husband is not required to be interfered with on account of irretrievable breakdown of marriage. However, at the same time, the respondent-husband cannot be absolved from his liability and responsibility to maintain his son Pranav till he attains the age of majority. Whatever be the dispute between the husband and the wife, a child should not be made to suffer. The liability and responsibility of the father to maintain the child continues till the child/son attains the age of majority. It also cannot be disputed that the son Pranav has a right to be maintained as per the status of his father. It is reported that the mother is not earning anything. She is residing at her parental house at Jaipur. Therefore, a reasonable/sufficient amount is required for the maintenance of her son including his education etc. which shall have to be paid by the respondent-husband, irrespective of the decree of dissolution of marriage between the appellant-wife and the respondent-husband. The amount which was being paid pursuant to the order passed by the Army Authorities on 15.11.2012 has also been stopped by the respondent-husband since December, 2019. 6. In view of the above and for the reasons stated above, the present appeal stands disposed of by confirming the decree of divorce/dissolution of the marriage between the appellant-wife and the respondent-husband. However, the respondent-husband is directed to pay Rs.50,000/- per month with effect from December, 2019 to the appellant-wife towards the maintenance of son Pranav as per the status of the respondent herein. The arrears @ Rs. 50,000/- per month since December, 2019 to November, 2021 shall be paid within a period of eight weeks from today. The current maintenance @ Rs. 50,000/- per month from the month of December, 2021 onwards be deducted from the salary of the respondent-husband by the Army Authorities, which shall be directly credited in the bank account of the appellant-mother. The appellant-mother is directed to furnish the bank details to the Army Authorities within a period of one week from today. It is further ordered that if the arrears @ Rs. 50,000/- per month commencing from December, 2019 till November, 2021, as ordered hereinabove is not paid by the respondent-father within a period of eight weeks from today, in that case, the recovery of arrears + monthly maintenance shall be worked out by the Army Authorities and the same shall be deducted in equal monthly instalments from the salary of the respondent-father, so as not to exceed 50% of the total monthly pay and allowances of the 7. The instant appeal stands disposed of, with the aforesaid
The Supreme Court ruled that a father must financially support his child until the child becomes an adult. This decision was part of a case where a couple's marriage was ended. The Court also stated that a son has a clear right to receive financial support that matches his father's financial situation. Additionally, the court emphasized that a child should not suffer because of problems or arguments between their parents. In this specific case, the wife had asked the Supreme Court for help. She was appealing a High Court decision that had supported an earlier Family Court ruling to end her marriage, stating it was due to her alleged cruelty and abandonment. She wanted the court to remove the accusations of cruelty made against her. After looking at the details, two judges then made their observations. However, the court noted that the wife and husband have not lived together since May 2011. This meant their marriage was completely broken and could not be fixed. It was also mentioned that the husband had already gotten married again. Because of these facts, there was no real reason to re-examine the accusations of cruelty and abandonment against the wife. Therefore, using its special powers under the Constitution, the Supreme Court decided not to change the divorce order that the Family Court made and the High Court confirmed. The marriage was simply too broken to continue. The court further stated that the husband cannot avoid his duty to financially support his son until the son becomes an adult. The court emphasized again that disagreements between parents should not cause a child to suffer. A father's duty to support his child continues until the child becomes an adult. It is also clear that a son has a right to receive financial support that matches his father's lifestyle. As they upheld the divorce order, the judges told the husband to pay 50,000 rupees each month, starting from December 2019.
1. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court of Judicature for Rajasthan at Jaipur passed in D.B. Civil Miscellaneous Appeal No. 2845 of 2018, by which the Division Bench of the High Court has dismissed the said appeal preferred by the appellant herein and has confirmed the judgment and decree passed by the learned Family Court dissolving the marriage between the appellant and the respondent on the ground of cruelty and desertion by the appellant herein, the original appellant-wife has preferred the present appeal. 2. The facts leading to the present appeal in nutshell are as under: That the marriage between the appellant and the respondent was solemnised on 16.11.2005. That the respondent herein was serving as an Army Officer as Major. That out of the said wedlock, the appellant and the respondent had one son Pranav Tyagi who is aged 13 years presently being born on 23.2.2008. That the dispute arose between the husband and the wife. That the appellant-wife filed number of complaints against the respondent-husband before his employer – Army Authorities including the extra-marital affairs of the respondent-husband. An enquiry was initiated by the Army Authorities against the respondent- husband for extra-marital affairs on the basis of the complaints dated 29.09.2014 and 5.2.2015 made by the appellant-wife. In the enquiry, the respondent-husband was exonerated. 2.1 That the respondent-husband filed Case No. 1496/2016 against the appellant-wife before the learned Family Court, Jaipur on 25.11.2014 seeking a decree of divorce and dissolution of marriage on the ground of cruelty and desertion by the appellant-wife. That, in the meantime and since 2012, the Army Authorities were deducting 27.5% of the salary per month from the pay and allowances of the respondent-husband as per Section 90(1) of the Army Act, 1950. That by judgment and decree dated 19.05.2018, the learned Family Court passed a decree for dissolution of marriage between the appellant and the respondent on the ground of cruelty and desertion by the appellant-wife. 2.2 Feeling aggrieved and dissatisfied with the judgment and decree passed by the learned Family Court dissolving the marriage between the appellant and the respondent, the appellant herein preferred an appeal before the High Court being D.B. Civil Miscellaneous Appeal No. 2845/2018. By the impugned judgment and order, the High Court has dismissed the said appeal and has confirmed the judgment and decree passed by the learned family Court. Hence, the present appeal is at the instance of the appellant-wife. 3. We have heard Ms. Neela Gokhale, learned Advocate appearing on behalf of the appellant. It is very unfortunate that though served, the respondent-husband has not appeared in the present appeal and it is reported that despite the order of status quo passed by this Court vide interim order dated 22.11.2019, the respondent-husband has re-married. 3.1 Number of submissions have been made by the learned Advocate appearing on behalf of the appellant-wife on the findings recorded by the learned Family Court as well as the High Court on cruelty and desertion by the appellant-wife. It is also the case on behalf of the appellant-wife that subsequently and despite the order of status quo passed by this Court on 22.11.2019, the respondent-husband has re-married and that is why he is not appearing in the present proceedings. 3.2 It is urged on behalf of the appellant-wife that in the alternative, the findings against the appellant-wife on “cruelty” may be expunged and marriage may be continued to remain dissolved on account of irretrievable breakdown of marriage since both wife and husband are residing separately since May, 2011 and the respondent-husband has already re-married. However, it is submitted to direct the respondent- husband to pay maintenance to the appellant-wife and minor son – Pranav as they have no means of maintaining themselves and have no independent income to sustain themselves. 3.3 It is submitted that since December, 2019, the appellant-wife and her son are not being paid any maintenance which they were receiving from the Army Authorities as per order passed by the Army Authorities dated 15.11.2012. It is submitted that the appellant and her son were getting Rs. 40,000/- towards maintenance which they received from 2012 till November, 2019. It is therefore prayed to direct the respondent- husband to pay the maintenance to the appellant and her minor son. 4. Having heard learned counsel for the appellant-wife and having gone through the findings recorded by the learned Family Court as well as by the High Court, on “cruelty” and “desertion” by the appellant-wife, we are of the view that there are concurrent findings recorded by the learned Family Court as well as the High Court on “cruelty” and “desertion” by the appellant-wife, which as such are on appreciation of evidence on record. The appellant-wife made number of complaints against the respondent-husband to his employer – Army Authorities making serious allegations of extra-marital affairs. On the basis of the complaints made by the appellant-wife, an enquiry was initiated by the Army Authorities and the Army Authorities exonerated the respondent- husband of the allegation of extra-marital affairs. 5. However, considering the fact that both, the appellant-wife and the respondent-husband are not staying together since May, 2011 and therefore it can be said that there is irretrievable breakdown of marriage between them. It is also reported that the respondent-husband has already re-married. Therefore, no useful purpose shall be served to further enter into the merits of the findings recorded by the courts below on “cruelty” and “desertion” by the appellant-wife. Therefore, in the facts and circumstances of the case and in exercise of powers under Article 142 of the Constitution of India, the decree passed by the learned Family Court, confirmed by the High Court, dissolving the marriage between the appellant-wife and the respondent-husband is not required to be interfered with on account of irretrievable breakdown of marriage. However, at the same time, the respondent-husband cannot be absolved from his liability and responsibility to maintain his son Pranav till he attains the age of majority. Whatever be the dispute between the husband and the wife, a child should not be made to suffer. The liability and responsibility of the father to maintain the child continues till the child/son attains the age of majority. It also cannot be disputed that the son Pranav has a right to be maintained as per the status of his father. It is reported that the mother is not earning anything. She is residing at her parental house at Jaipur. Therefore, a reasonable/sufficient amount is required for the maintenance of her son including his education etc. which shall have to be paid by the respondent-husband, irrespective of the decree of dissolution of marriage between the appellant-wife and the respondent-husband. The amount which was being paid pursuant to the order passed by the Army Authorities on 15.11.2012 has also been stopped by the respondent-husband since December, 2019. 6. In view of the above and for the reasons stated above, the present appeal stands disposed of by confirming the decree of divorce/dissolution of the marriage between the appellant-wife and the respondent-husband. However, the respondent-husband is directed to pay Rs.50,000/- per month with effect from December, 2019 to the appellant-wife towards the maintenance of son Pranav as per the status of the respondent herein. The arrears @ Rs. 50,000/- per month since December, 2019 to November, 2021 shall be paid within a period of eight weeks from today. The current maintenance @ Rs. 50,000/- per month from the month of December, 2021 onwards be deducted from the salary of the respondent-husband by the Army Authorities, which shall be directly credited in the bank account of the appellant-mother. The appellant-mother is directed to furnish the bank details to the Army Authorities within a period of one week from today. It is further ordered that if the arrears @ Rs. 50,000/- per month commencing from December, 2019 till November, 2021, as ordered hereinabove is not paid by the respondent-father within a period of eight weeks from today, in that case, the recovery of arrears + monthly maintenance shall be worked out by the Army Authorities and the same shall be deducted in equal monthly instalments from the salary of the respondent-father, so as not to exceed 50% of the total monthly pay and allowances of the 7. The instant appeal stands disposed of, with the aforesaid
The Supreme Court ruled that a father must financially support his child until the child becomes an adult. This decision was part of a case where a couple's marriage was ended. The Court also stated that a son has a clear right to receive financial support that matches his father's financial situation. Additionally, the court emphasized that a child should not suffer because of problems or arguments between their parents. In this specific case, the wife had asked the Supreme Court for help. She was appealing a High Court decision that had supported an earlier Family Court ruling to end her marriage, stating it was due to her alleged cruelty and abandonment. She wanted the court to remove the accusations of cruelty made against her. After looking at the details, two judges then made their observations. However, the court noted that the wife and husband have not lived together since May 2011. This meant their marriage was completely broken and could not be fixed. It was also mentioned that the husband had already gotten married again. Because of these facts, there was no real reason to re-examine the accusations of cruelty and abandonment against the wife. Therefore, using its special powers under the Constitution, the Supreme Court decided not to change the divorce order that the Family Court made and the High Court confirmed. The marriage was simply too broken to continue. The court further stated that the husband cannot avoid his duty to financially support his son until the son becomes an adult. The court emphasized again that disagreements between parents should not cause a child to suffer. A father's duty to support his child continues until the child becomes an adult. It is also clear that a son has a right to receive financial support that matches his father's lifestyle. As they upheld the divorce order, the judges told the husband to pay 50,000 rupees each month, starting from December 2019.
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Counsel for Petitioner :­ Pradumn Tripathi Counsel for Respondent :­ C.S.C. 1. Petitioner ­ a woman, could not participate in the Physical Efficiency Test (PET) scheduled on 23.3.2021 in pursuance of recruitment process for the post of Jail Warder's (Male, Female) when she was in the family way (7 th month of pregnancy). Later on, she delivered a baby on 2.6.2021. She duly communicated about her medical condition to the respondents on 23.3.2021 and subsequently on 26.3.2021 but they remained unheard and in these circumstances, petitioner has approached this Court with the prayer that respondents' authorities be directed to conduct Physical Efficiency Test by providing her an attempt. 2. Shri Pradumn Tripathi, learned counsel for petitioner has submitted only submission to grant an opportunity to the petitioner to appear for Physical Efficiency Test as she was not able to appear on date fixed due to her pregnancy and delivery of a 3. The above submissions are opposed by Dr. Amar Nath Singh, learned Standing Counsel that there is no provision of granting WRIT ­ A No. ­ 16580 of 2021 any further opportunity to appear for the said Test. He relied upon a judgment passed by the Supreme Court in State of Uttar Pradesh and others vs. Pankaj Kumar; (2022) 1 SCC 335 as well as judgment passed by a co­ordinate in Writ A No.2971 of 2020 (Yogesh Kumar vs. State of U.P. and another), decided on 1.10.2020, that a recruitment process would be meaningless without a time line and second chance to appear could not be 4. Heard learned counsel for the parties and perused the 5. To achieve above high status, a woman has to carry a life within her for about nine months, the period during which, she not only has to face different physiological changes but has to cross various psychological situations as well. 6. The petitioner has travelled journey of the motherhood and became a proud mother, but forced to pay heavy price for it, being denied permission by respondents to appear for physical efficiency test, after she gave birth to a baby. 7. Petitioner's future prospect and her legitimate right to complete all steps for recruitment process for post of Jail Warder are withheld by the respondents. She could not appear in the said test because it was scheduled during her fourth month of pregnancy and her representation for giving a chance to appear for WRIT ­ A No. ­ 16580 of 2021 test after delivery of a child remained unnoticed. 8. In these circumstances, which were beyond control of the petitioner after she conceive , the Court has to weigh arguments of respondents at the anvil of constitutional powers provided under Article 226 of the Constitution. In support of contention of the respondents that there is no provision for providing a further chance to appear for Physical Efficiency Test and that entire process of recruitment is already over, heavy reliance is placed upon Pankaj Kumar (supra), that recruitment process would be meaningless without a time line. 9. It is relevant to consider time line of present case that date for Physical Efficiency Test was 23.3.2021, when petitioner was in her 4th month of pregnancy, therefore she requested for other date. Thereafter, she gave birth to a baby on 2.6.2021 her request for fixing a date for aid test, remained unheard. Then she approached this Court on 9.11.2021, therefore, within 8 months she is before this Court by way of filing present writ petition. Thus, facts of Pankaj Kumar (Supra) where respondent therein was denied a further attempt to appear in the test because he approached belatedly, however, petitioner herein has promptly approached before Court, therefore, equity is also in favour of 10. It is apt to mention here that power conferred on the High Court under Article 226 of the Constitution is to advance justice and not to thwart it (State of Uttar Pradesh vs. District Judge Unnao and others; AIR 1984 SC 1401). The very purpose of such Constitutional powers being conferred on the High Court is that no person should be subjected to injustice by violating the law. WRIT ­ A No. ­ 16580 of 2021 11. In Gujarat Steel Tubes Ltd. and others vs. Gujarat Steel Tubes Mazdoor Sabha and others; (1980) 2 SCC 593, the Supreme Court has held that Article 226 is a sparing surgery but lancet operates where injustice suppurates. The wide words of Article 226 are designed for service of the lowly numbers in their grievances if the subject belongs to the Court's province and the remedy is appropriate to the judicial process. 12. In view of above analysis on fact and law, I am of the considered opinion that facts and circumstances of present case warrants for interference and to pass appropriate order and direction to impart justice to the petitioner by exercising powers granted to Court under Article 226 of the Constitution, therefore, this writ petition stands disposed of with following directions :­ i) The respondents' authorities are directed to fix a date between 16.5.2022 to 20.5.2022 for conducting Physical Efficiency Test of petitioner providing prior information to her. ii) On the basis of outcome of Test referred above, merit of petitioner shall be declared and in case, she got more than cut off marks, she shall be appointed on the post of Jail Warder. However, if process is already completed, petitioner shall put at the bottom of merit list and her candidature will be considered if a vacancy arose due to non­joining of a selected candidate or otherwise.
The Allahabad High Court recently made an important decision. It ordered the government to give a fitness test to a woman who wants to be a Jail Warder. She had missed the test last year because she was pregnant. Justice Saurabh Shyam Shamshery, who made the decision, quoted an ancient scholar named Maharishi Ved Vyas. The quote said, "There is no shade like a mother, no resort like a mother, no security like a mother, no other ever-giving fountain of life!" This quote highlights the importance of motherhood. The Court also pointed out that the woman had gone through pregnancy and become a proud mother. But she was forced to face a big problem for this. The authorities would not let her take the fitness test after she gave birth. The case in brief Here's a brief look at the case. The woman, Preeti Malik, couldn't take part in the fitness test on March 23, 2021. This test was part of the hiring process for a UP Police Jail Warder job. At that time, she was in her seventh month of pregnancy. She gave birth to her baby on June 2, 2021. She had properly told the authorities about her health situation on March 23 and again on March 26, 2021. However, her requests were ignored. Because of this, she asked the High Court for help. She wanted the court to order the authorities to give her another chance to take the fitness test. She couldn't take it on the original date due to her pregnancy and giving birth. Court's observations First, the Court pointed out that to become a mother, a woman carries a baby inside her for about nine months. During this time, the Court added, she goes through many changes in her body and also faces different emotional challenges. Also, the Court observed that the authorities had stopped the woman's chance for a future job and her fair right to finish all steps of the hiring process for the Jail Warder position. This happened because her request to take the test after giving birth was ignored. Because of these reasons, the Court emphasized that its power under Article 226 of the Constitution is meant to promote fairness, not block it. So, the Court finished the case by giving these orders: The authorities must set a date for her fitness test between May 16, 2022, and May 20, 2022. They must also tell her this date beforehand. Based on how she does in that test, her score will be announced. If she gets more than the minimum score needed, she will be given the job as a Jail Warder. However, if the hiring process is already finished, the woman will be placed at the end of the list of qualified candidates. She will be considered for the job if a spot opens up. This could happen if someone else chosen for the job doesn't join, or for another reason.
Counsel for Petitioner :­ Pradumn Tripathi Counsel for Respondent :­ C.S.C. 1. Petitioner ­ a woman, could not participate in the Physical Efficiency Test (PET) scheduled on 23.3.2021 in pursuance of recruitment process for the post of Jail Warder's (Male, Female) when she was in the family way (7 th month of pregnancy). Later on, she delivered a baby on 2.6.2021. She duly communicated about her medical condition to the respondents on 23.3.2021 and subsequently on 26.3.2021 but they remained unheard and in these circumstances, petitioner has approached this Court with the prayer that respondents' authorities be directed to conduct Physical Efficiency Test by providing her an attempt. 2. Shri Pradumn Tripathi, learned counsel for petitioner has submitted only submission to grant an opportunity to the petitioner to appear for Physical Efficiency Test as she was not able to appear on date fixed due to her pregnancy and delivery of a 3. The above submissions are opposed by Dr. Amar Nath Singh, learned Standing Counsel that there is no provision of granting WRIT ­ A No. ­ 16580 of 2021 any further opportunity to appear for the said Test. He relied upon a judgment passed by the Supreme Court in State of Uttar Pradesh and others vs. Pankaj Kumar; (2022) 1 SCC 335 as well as judgment passed by a co­ordinate in Writ A No.2971 of 2020 (Yogesh Kumar vs. State of U.P. and another), decided on 1.10.2020, that a recruitment process would be meaningless without a time line and second chance to appear could not be 4. Heard learned counsel for the parties and perused the 5. To achieve above high status, a woman has to carry a life within her for about nine months, the period during which, she not only has to face different physiological changes but has to cross various psychological situations as well. 6. The petitioner has travelled journey of the motherhood and became a proud mother, but forced to pay heavy price for it, being denied permission by respondents to appear for physical efficiency test, after she gave birth to a baby. 7. Petitioner's future prospect and her legitimate right to complete all steps for recruitment process for post of Jail Warder are withheld by the respondents. She could not appear in the said test because it was scheduled during her fourth month of pregnancy and her representation for giving a chance to appear for WRIT ­ A No. ­ 16580 of 2021 test after delivery of a child remained unnoticed. 8. In these circumstances, which were beyond control of the petitioner after she conceive , the Court has to weigh arguments of respondents at the anvil of constitutional powers provided under Article 226 of the Constitution. In support of contention of the respondents that there is no provision for providing a further chance to appear for Physical Efficiency Test and that entire process of recruitment is already over, heavy reliance is placed upon Pankaj Kumar (supra), that recruitment process would be meaningless without a time line. 9. It is relevant to consider time line of present case that date for Physical Efficiency Test was 23.3.2021, when petitioner was in her 4th month of pregnancy, therefore she requested for other date. Thereafter, she gave birth to a baby on 2.6.2021 her request for fixing a date for aid test, remained unheard. Then she approached this Court on 9.11.2021, therefore, within 8 months she is before this Court by way of filing present writ petition. Thus, facts of Pankaj Kumar (Supra) where respondent therein was denied a further attempt to appear in the test because he approached belatedly, however, petitioner herein has promptly approached before Court, therefore, equity is also in favour of 10. It is apt to mention here that power conferred on the High Court under Article 226 of the Constitution is to advance justice and not to thwart it (State of Uttar Pradesh vs. District Judge Unnao and others; AIR 1984 SC 1401). The very purpose of such Constitutional powers being conferred on the High Court is that no person should be subjected to injustice by violating the law. WRIT ­ A No. ­ 16580 of 2021 11. In Gujarat Steel Tubes Ltd. and others vs. Gujarat Steel Tubes Mazdoor Sabha and others; (1980) 2 SCC 593, the Supreme Court has held that Article 226 is a sparing surgery but lancet operates where injustice suppurates. The wide words of Article 226 are designed for service of the lowly numbers in their grievances if the subject belongs to the Court's province and the remedy is appropriate to the judicial process. 12. In view of above analysis on fact and law, I am of the considered opinion that facts and circumstances of present case warrants for interference and to pass appropriate order and direction to impart justice to the petitioner by exercising powers granted to Court under Article 226 of the Constitution, therefore, this writ petition stands disposed of with following directions :­ i) The respondents' authorities are directed to fix a date between 16.5.2022 to 20.5.2022 for conducting Physical Efficiency Test of petitioner providing prior information to her. ii) On the basis of outcome of Test referred above, merit of petitioner shall be declared and in case, she got more than cut off marks, she shall be appointed on the post of Jail Warder. However, if process is already completed, petitioner shall put at the bottom of merit list and her candidature will be considered if a vacancy arose due to non­joining of a selected candidate or otherwise.
The Allahabad High Court recently made an important decision. It ordered the government to give a fitness test to a woman who wants to be a Jail Warder. She had missed the test last year because she was pregnant. Justice Saurabh Shyam Shamshery, who made the decision, quoted an ancient scholar named Maharishi Ved Vyas. The quote said, "There is no shade like a mother, no resort like a mother, no security like a mother, no other ever-giving fountain of life!" This quote highlights the importance of motherhood. The Court also pointed out that the woman had gone through pregnancy and become a proud mother. But she was forced to face a big problem for this. The authorities would not let her take the fitness test after she gave birth. The case in brief Here's a brief look at the case. The woman, Preeti Malik, couldn't take part in the fitness test on March 23, 2021. This test was part of the hiring process for a UP Police Jail Warder job. At that time, she was in her seventh month of pregnancy. She gave birth to her baby on June 2, 2021. She had properly told the authorities about her health situation on March 23 and again on March 26, 2021. However, her requests were ignored. Because of this, she asked the High Court for help. She wanted the court to order the authorities to give her another chance to take the fitness test. She couldn't take it on the original date due to her pregnancy and giving birth. Court's observations First, the Court pointed out that to become a mother, a woman carries a baby inside her for about nine months. During this time, the Court added, she goes through many changes in her body and also faces different emotional challenges. Also, the Court observed that the authorities had stopped the woman's chance for a future job and her fair right to finish all steps of the hiring process for the Jail Warder position. This happened because her request to take the test after giving birth was ignored. Because of these reasons, the Court emphasized that its power under Article 226 of the Constitution is meant to promote fairness, not block it. So, the Court finished the case by giving these orders: The authorities must set a date for her fitness test between May 16, 2022, and May 20, 2022. They must also tell her this date beforehand. Based on how she does in that test, her score will be announced. If she gets more than the minimum score needed, she will be given the job as a Jail Warder. However, if the hiring process is already finished, the woman will be placed at the end of the list of qualified candidates. She will be considered for the job if a spot opens up. This could happen if someone else chosen for the job doesn't join, or for another reason.
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This writ petition has been filed seeking quashment of G.O. (D) No.372, Home (Prison-IV) Department dated 22.07.2019, in and by which, the State Level Committee's recommendation for premature release of John David (Life Convict Prisoner No.4897), the son of the petitioner herein, has been turned down and for a mandamus to the respondents to release John David in terms of G.O. (Ms.) No.64 Home (Prison-IV) Department dated 01.02.2018 (for short “G.O. 64”). 2 The brief facts leading to the filing of this writ petition are as 2.1 John David faced a prosecution in S.C. No.63 of 1997 before the Principal Sessions Court, Cuddalore (for short “the trial Court”) for the alleged murder of one Navarasu, a I year student of MBBS course in Annamalai University and the son of a retired Vice Chancellor of Madras 2.2 Eventually, by judgment and order dated 11.03.1998, he was found guilty by the trial Court of the offences under Sections 364, 342, 302 and 201 IPC and was sentenced to various terms of imprisonment, the maximum being, imprisonment for life for the offences under Sections 364 and 302 IPC. 2.3 The Madras High Court allowed his appeal in Crl.A. No.267 of 1998 on 05.10.2001 and the Supreme Court, on 20.04.2011, in Crl.A.No.384 of 2002, reversed the acquittal order of the Madras High Court and restored the conviction and sentence imposed on John David by the trial Court, pursuant to which, John David is now undergoing the sentences. 2.4 Be that as it may, to commemorate the birth centenary celebrations of Dr. M.G. Ramachandran, the Government of Tamil Nadu issued G.O.64, for premature release of the convict prisoners fixing several eligibility conditions. 2.5 Since the case of John David was not considered by the authorities for premature release by extending the benefit under G.O. 64, his mother, the petitioner herein, filed H.C.P. No.525 of 2019 seeking premature release of her son. 2.6 During the pendency of the said habeas corpus petition, the State Government passed G.O.(D) No.372, Home (Prison-IV) Department dated 22.07.2019, rejecting the recommendation of the State Level Committee for premature release of John David, challenging which, the present writ petition has been filed for the relief, as stated in the opening paragraph of this order. 3 Heard Mr. A. Ramesh, learned Senior Counsel representing Mr.G.R. Hari, learned counsel on record for the petitioner and Mr. Hasan Mohamed Jinnah, learned Public Prosecutor, assisted by Mr.R.Muniyapparaj, learned Additional Public Prosecutor appearing for the respondents/State. 4 The State has filed a counter affidavit dated 25.08.2021 and an additional counter affidavit dated 31.01.2022 in defence of the impugned order. The operative portion of the impugned order reads as under: “3. The State Level Committee constituted in the Government Order second read above has recommended for the premature release of the life convict prisoner No.4897, John David, son of David Marimuthu, confined in Central Prison-I, Puzhal. 4. The Government have examined the State Level Committee's recommendation for the premature release of the life convict prisoner No.4897, John David with relevant records. The life convict prisoner No.4897, John David, son of David Marimuthu, confined in Central Prison-I, Puzhal was convicted by the Principal Sessions Judge, Cuddalore on 25.04.2011 in Sessions Case No.63 of 1997 under Section 302, 342 364, 201 of IPC. As the life convict prisoner No.4897, John David, Son of David Marimuthu by using doctor's knife severed the head and torso of Navarasu, (junior student of MBBS in Annamalai University, Chidambaram), son of Dr.P.K.Ponnusamy, then Vice Chancellor of Madras University and thrown the severed parts in various places. In this case, the above life convict prisoner is involved in a brutal murder/heinous crime. Considering the cruel nature of the offence committed by him, the Government has decided to reject the State Level Committee's recommendation for premature release of the Life Convict Prisoner No.4897, John David, son of David Marimuthu, confined in Central Prison-I, Puzhal and order accordingly. Additional Chief Secretary to Government” 5 At the outset, Mr. A. Ramesh, learned Senior Counsel appearing for the petitioner, brought to the notice of this Court, the track record of John David and submitted that after John David was acquitted by the High Court, he did not at all get involved in any offence and after the judgment of the Supreme Court reversing the acquittal made by the High Court and confirming the judgment and order of conviction and sentence passed by the trial Court, he surrendered and his conduct in the prison thereafter has been exemplary. He placed before this Court the details of educational qualifications John David had acquired while in prison and also the conduct certificate dated 29.12.2017 given by the Superintendent of Prisons, Central Prison - I, Puzhal, which reads thus: He is a well behaved and obedient person and he has sincerely carried out the work allotted to him in an appreciable manner. He was released on leave on many occasions and he has returned to prison on time without any issues. He has also shared his knowledge with his fellow inmates, teaching them on English and Computer Science. He is well reformed now and fit to be reinstated into the society. His conduct is good and satisfactory.” Therefore, according to Mr. A. Ramesh, since John David has turned into a new leaf, the State Government should have considered his case favourably and released him under G.O. 64. In support of his contention that John David should have been released prematurely based on his good conduct in the prison, Mr. Ramesh placed reliance on the judgment of the Supreme Court in Satish @ Sabbe vs. The State of Uttar Pradesh [2020 SCC OnLine SC 811] and Home Secretary (Prison) and Others vs. H.Nilofer 6 Next, Mr. Ramesh took this Court through the impugned Government Order and submitted that the Government had misdirected itself by saying that “John David by using doctor's knife, severed the head and torso of Navarasu”, which is factually incorrect, inasmuch as there is no reference to the usage of doctor's knife in the alleged act of John David, but, on the contrary, the findings of the trial Court shows that the knives viz., M.Os.9 to 11, were used for cutting fruits and they were not surgical instruments. This according to Mr. Ramesh, shows non-application of mind on the part of the authorities. 7 Finally, Mr. Ramesh contended that the State Government had released the accused involved in far more heinous offences like the ones in infamous Dharmapuri bus burning case and Melavalavu case, which is discriminatory. 8 Per contra, Mr. Hasan Mohamed Jinnah, learned Public Prosecutor, refuted the aforesaid contentions and submitted that the Government had rejected the case of John David based on the manner in which the crime was committed and not on the basis that it was committed with a doctor's knives. He also submitted that there cannot be any negative equality under Article 14 of the Constitution of India. 9 We initially propose to address two arguments of Mr.A.Ramesh, viz., his reliance on Satish @ Sabbe (supra) and release of the accused in Dharmapuri bus burning case and Melavalavu case. 10 As far as the judgment in Satish @ Sabbe (supra) is concerned, the issue before the Supreme Court was non-application of Section 2 of the Uttar Pradesh Prisoners Release on Probation Act, 1938, by the executive authorities. This is limpid from paragraph 16 of the judgment “16. It is no doubt trite law that no convict can claim remission as a matter of right. However, in the present case, the circumstances are different. What had been sought and directed by this Court through repeated orders was not premature release itself, but due application of mind and a reasoned decision by executive authorities in terms of existing provisions regarding premature release. Clearly, once a law has been made by the appropriate legislature, then it is not open for executive authorities to surreptitiously subvert its mandate. Where the authorities are found to have failed to discharge their statutory obligations despite judicial directions, it would then not be inappropriate for a Constitutional Court while exercising its powers of judicial review to assume such task onto itself and direct compliance through a writ of mandamus.” In Tamil Nadu, we do not have similar provisions as in the State of Uttar Pradesh and hence, this judgment may not be of much avail to John David. In fact, in the same judgment, the Supreme Court has clearly held that no convict prisoner can claim remission as a matter of right. Thus, the case of John David should be decided only within the four corners of G.O. 64. 11 As regards the second argument of Mr. Ramesh, as rightly contended by the learned Public Prosecutor, there cannot be negative equality. At this juncture, apropos it is to allude to paragraph 28 of a very recent judgment of the Supreme Court in R. Muthukumar and Others vs. “28. A principle, axiomatic in this country's constitutional lore is that there is no negative equality. In other words, if there has been a benefit or advantage conferred on one or a set of people, without legal basis or justification, that benefit cannot multiply, or be relied upon as a principle of parity or equality.....” Therefore, just because the Government had fallen in error in releasing the accused in the infamous Dharmapuri bus burning case and Melavalavu case, the same error cannot be allowed to be perpetrated and relief granted to John 12 Mr. A. Ramesh placed strong reliance on a Division Bench judgment of this Court in K.Rajasekar vs. State and Others (MANU/TN/0641/2022), in which, one of us (PNPJ), was a Member, in support of his contention relating to equality under Article 14 of the Constitution of India. 13 In Rajasekar (supra), the husband, Rajasekar, and his wife, Shanthi, on account of abject poverty, smothered their three month old child and killed her. The Government granted remission to Rajasekar, but, refused to grant remission to Shanthi, on the ground that the crime was a heinous one. In that case, both of them were convicted under Section 302 read with 34 IPC, as nobody knew, who amongst the two had actually smothered the child, as that was done in secrecy. Therefore, on those facts, this Court held that, if according to the Government, the act of the husband was not heinous, the Government cannot be heard to say that, the act of the wife was heinous and deny her premature release. 14 As regards the submission of Mr. A. Ramesh that John David has turned into a new leaf and hence, he should not be deprived of the benefit of G.O. 64, it is true that the conduct of John David in the prison has been exemplary, as could be seen from the conduct certificate issued by the Superintendent of Prisons, Central Prison-I, Puzhal, extracted in paragraph 5 (supra) and that is the reason why the State Level Committee had recommended his premature release. However, be it noted, the State Government and the Governor are not bound by the recommendations of the State Level Committee, as the exercise of power for premature release of a convict prisoner under G.O. 64 is under Article 161 of the Constitution of India. This is manifest from paragraph 5 of G.O. 64. That apart, G.O. 64 “5(V) The above cases shall be examined with reference to the above guidelines on a case to case basis. (VIII) The life imprisonment prisoners cannot claim premature release as a matter of right.” The State Level Committee which is composed of the Inspector General of Prisons and the Deputy Inspector General of Prisons (Headquarters) can only recommend a case to the State Government and cannot exercise the power under Article 161 of the Constitution of India. The Governor of the State would exercise the power under Article 161, ibid., on the recommendation of the Cabinet. Thus, the Cabinet has the authority to accept or reject the recommendation of the State Level Committee and accordingly, give their advice to the Governor. In the instant case, it is obvious that the Governor has chosen to reject the recommendation of the State Level Committee qua premature release of John David, by the impugned Government Order. 15 Further, in Nilofer Nisha (supra), it has been clearly held at “26. We would also like to point out that the grant of remission or parole is not a right vested with the prisoner. It is a privilege available to the prisoner on fulfilling certain conditions. This is a discretionary power which has to be exercised by the authorities conferred with such powers under the relevant rules/regulations. The court cannot exercise these powers though once the powers are exercised, the Court may hold that the exercise of powers is not in accordance with rules. .....” In this case, the Government exercised its powers via the impugned order and what remains to be done by this Court is to see whether the exercise of powers by the authorities was in accordance with G.O. 64. 16 As contended by Mr. A. Ramesh, it is true that in the impugned order, it is stated that John David had used a doctor's knife, which is factually incorrect. However, we find that the impugned order is not predicated only on this erroneous fact. The other facts, viz., the head and torso of Navarasu was severed and the severed parts were thrown in various places and were recovered by the police, have been accepted by the trial Court and the Supreme Court as proved facts. What had weighed with the Government for refusing to grant the relief under G.O. 64 is the brutal and cruel manner in which the murder of Navarasu had been committed. 17 Now, the question is, can this Court, in exercise of powers under Article 226 of the Constitution of India, step into the shoes of the Governor and decide about the sufficiency of the reasons given in the impugned order. The answer to this question is available in Epuru Sudhakar and another vs. State of Andhra Pradesh and Others [(2006) 8 SCC 161], which has been extracted in the preamble portion of G.O. 64 itself. Nonetheless, the said portion is reproduced for ready reference. “......T he President and the Governor are the sole judges of the sufficiency of facts and of the appropriateness of granting the pardons and reprieves. However, this power is an enumerated power in the Constitution and its limitations, if any, must be found in the Constitution itself. Therefore, the principle of exclusive cognizance would not apply when and if the decision impugned is in derogation of a constitutional provision. This is the basic working test to be applied while granting pardons, reprieves, remissions and Ergo, this Court cannot examine the sufficiency of the facts for quashing the impugned Government Order. 18 As regards the reliance placed by the learned Senior Counsel on Nilofer Nisha (supra), the Supreme Court, in that case, proceeded to exercise its powers under Article 142 of the Constitution of India on a case- to-case basis and directed the release of the convict prisoners therein. We do not have the powers of the Supreme Court to engage in such an exercise, however sympathetic we may be towards John David. In fact, in Nilofer Nisha (supra), which arose from this Court, this Court had ordered premature release of convict prisoners under G.O.64, challenging which, the State went on appeal to the Supreme Court. After discussing the legal position, the Supreme Court, in paragraph 47, has allowed the State's appeals, but has, under Article 142 of the Constitution of India, gone into the case of each convict prisoner and has granted relief. 19 That apart, in Sikkander vs. State, represented by its Secretary to Government of Tamil Nadu and Others (2021 SCC Online Mad 6586), a Division Bench of this Court, in which, one of us (PNPJ) was a Member, has discussed all the aspects relating to premature release of convict prisoners under G.O.64 and the law laid down therein is a binding precedent. 20 In view of the foregoing discussion, we find no ground whatsoever to interfere with the impugned Government Order. In the result, this writ petition fails and is accordingly dismissed as being devoid of merits, however, sans costs. Connected W.M.P. stand closed. 1 The Additional Chief Secretary to Government 2 The Additional Director General of Police
The Madras High Court has said no to looking again at the case of John David. He is a prisoner found guilty in the well-known 1996 murder of Pon Navarasu. John David wanted to be let out of prison early. A group of judges, P.N. Prakash and A.A. Nakkiran, stated that the state government and the Governor do not have to follow the jail's suggestion to release John David early. The court added that only the Governor can use the power given by Article 161 of the Constitution to let a prisoner go early. But the Governor must act on the advice of the State Cabinet, which is a group of high-ranking state government officials. In 2011, the Supreme Court overturned the Madras High Court's decision to let John David go free. Instead, the Supreme Court confirmed the Cuddalore trial court's ruling that found him guilty and sentenced him to two life terms in prison. John David was the main person accused of killing Pon Navarasu. Pon Navarasu was a first-year medical student at Annamalai University and the son of a former leader of Madras University. The public's anger after this terrible murder led to Tamil Nadu creating its first law against ragging in schools and colleges, called the Tamil Nadu Prohibition of Ragging Act, 1997. Dr. Esther, John David's mother, asked the court to challenge a government order (G.O. 372). This order stopped her son from getting an early release that others received under another order (G.O. 64). That earlier order was part of the celebrations for Dr. M.G. Ramachandran's 100th birthday. But the group of judges would not consider her request and said the following: "The State Level Committee, which includes the Inspector General of Prisons and the Deputy Inspector General of Prisons, can only suggest a case to the state government. This committee cannot use the power under Article 161 of India's Constitution. The Governor of the State uses this power (Article 161) based on what the State Cabinet suggests. So, the Cabinet has the power to either agree with or refuse the State Level Committee's suggestion. Then, they give their advice to the Governor." The judges pointed out that letting a prisoner out early or temporarily (called parole) is not something they have a right to. They referred to an earlier court case (Home Secretary v. H.Nilofer Nisha). The judges also noted that even if the government was wrong about the type of knife used to cut the body into pieces, this small mistake does not make the crime any less terrible. It doesn't change how "brutal and cruel" Navarasu's murder was. The court also said that it could not change the government's order using its power under Article 226. This is because, unlike the Supreme Court, it does not have the special powers of Article 142. The court noted that the Supreme Court released prisoners in the Nilofer Shah case by looking at each case individually. The High Court also referred to another case (Epuru Sudhakar v. State of Andhra Pradesh) to highlight that only the President and the Governor can truly decide if there are enough reasons and if it's appropriate to grant pardons or reduce sentences. The lawyer for John David's mother argued that the government had let out prisoners who had committed even worse crimes earlier. But the judges said that "negative equality" isn't allowed. This means that just because some people might have unfairly received an advantage, it doesn't mean others should get the same unfair treatment. They referred to a Supreme Court case (R. Muthukumar v. TANGEDCO) which stated that if someone or a group of people received a benefit without a proper legal reason, that benefit cannot be used as a reason for others to demand the same treatment. So, the court added, just because the government made a mistake by releasing those found guilty in the well-known Dharmapuri bus burning case and the Melavalavu case, that same mistake cannot be repeated to help John David. The Dharmapuri Bus Burning happened in 2000. This was soon after the former Chief Minister, J. Jayalalithaa, was found guilty in the Kodaikanal Pleasant Stay Hotel case. In the bus burning, three students from Tamil Nadu Agricultural University died from their burns. Three men from the AIADMK political party were sentenced to death during their trial. However, their death sentences were later changed to a lesser punishment after they asked the Supreme Court to review their case. The state government then released them early in 2018. In the Melavalavu massacre, a village leader (Panchayat President) and six Dalit men were killed by villagers from a higher social group. These villagers were angry that a Scheduled Caste member (a term for Dalit, protected by the constitution) had been elected as the Panchayat President. The Madras High Court had previously noted, when it confirmed the guilty verdicts in that case, that the people accused did not just murder the victims. Their actions were also meant to scare the entire Scheduled Caste community from even trying to run in local elections for village leadership. The state government allowed thirteen people found guilty in that case to be released early in 2019. John David's mother's lawyer also mentioned another case (Satish v. State of Uttar Pradesh, 2020). The court explained that in that case, the early release was allowed because government officials did not follow a specific rule (Section 2 of the Uttar Pradesh Prisoners Release on Probation Act, 1938). It was not because the prisoner had a right to be released early. The court also made clear that a previous decision by a different group of Madras High Court judges (K. Rajasekar v. State, 2022) was about a different situation. In that case, a husband and wife killed a child. Because it wasn't clear who exactly committed the murder, only the husband was allowed early release, while the wife was denied it because she had committed a terrible crime. The court admitted that a report from the Superintendent of Police (Prisons) showed John David had truly changed and behaved very well in jail. However, the court ended by saying that good behavior alone does not make him qualified for early release under the rules. It remains up to the Governor to decide.
This writ petition has been filed seeking quashment of G.O. (D) No.372, Home (Prison-IV) Department dated 22.07.2019, in and by which, the State Level Committee's recommendation for premature release of John David (Life Convict Prisoner No.4897), the son of the petitioner herein, has been turned down and for a mandamus to the respondents to release John David in terms of G.O. (Ms.) No.64 Home (Prison-IV) Department dated 01.02.2018 (for short “G.O. 64”). 2 The brief facts leading to the filing of this writ petition are as 2.1 John David faced a prosecution in S.C. No.63 of 1997 before the Principal Sessions Court, Cuddalore (for short “the trial Court”) for the alleged murder of one Navarasu, a I year student of MBBS course in Annamalai University and the son of a retired Vice Chancellor of Madras 2.2 Eventually, by judgment and order dated 11.03.1998, he was found guilty by the trial Court of the offences under Sections 364, 342, 302 and 201 IPC and was sentenced to various terms of imprisonment, the maximum being, imprisonment for life for the offences under Sections 364 and 302 IPC. 2.3 The Madras High Court allowed his appeal in Crl.A. No.267 of 1998 on 05.10.2001 and the Supreme Court, on 20.04.2011, in Crl.A.No.384 of 2002, reversed the acquittal order of the Madras High Court and restored the conviction and sentence imposed on John David by the trial Court, pursuant to which, John David is now undergoing the sentences. 2.4 Be that as it may, to commemorate the birth centenary celebrations of Dr. M.G. Ramachandran, the Government of Tamil Nadu issued G.O.64, for premature release of the convict prisoners fixing several eligibility conditions. 2.5 Since the case of John David was not considered by the authorities for premature release by extending the benefit under G.O. 64, his mother, the petitioner herein, filed H.C.P. No.525 of 2019 seeking premature release of her son. 2.6 During the pendency of the said habeas corpus petition, the State Government passed G.O.(D) No.372, Home (Prison-IV) Department dated 22.07.2019, rejecting the recommendation of the State Level Committee for premature release of John David, challenging which, the present writ petition has been filed for the relief, as stated in the opening paragraph of this order. 3 Heard Mr. A. Ramesh, learned Senior Counsel representing Mr.G.R. Hari, learned counsel on record for the petitioner and Mr. Hasan Mohamed Jinnah, learned Public Prosecutor, assisted by Mr.R.Muniyapparaj, learned Additional Public Prosecutor appearing for the respondents/State. 4 The State has filed a counter affidavit dated 25.08.2021 and an additional counter affidavit dated 31.01.2022 in defence of the impugned order. The operative portion of the impugned order reads as under: “3. The State Level Committee constituted in the Government Order second read above has recommended for the premature release of the life convict prisoner No.4897, John David, son of David Marimuthu, confined in Central Prison-I, Puzhal. 4. The Government have examined the State Level Committee's recommendation for the premature release of the life convict prisoner No.4897, John David with relevant records. The life convict prisoner No.4897, John David, son of David Marimuthu, confined in Central Prison-I, Puzhal was convicted by the Principal Sessions Judge, Cuddalore on 25.04.2011 in Sessions Case No.63 of 1997 under Section 302, 342 364, 201 of IPC. As the life convict prisoner No.4897, John David, Son of David Marimuthu by using doctor's knife severed the head and torso of Navarasu, (junior student of MBBS in Annamalai University, Chidambaram), son of Dr.P.K.Ponnusamy, then Vice Chancellor of Madras University and thrown the severed parts in various places. In this case, the above life convict prisoner is involved in a brutal murder/heinous crime. Considering the cruel nature of the offence committed by him, the Government has decided to reject the State Level Committee's recommendation for premature release of the Life Convict Prisoner No.4897, John David, son of David Marimuthu, confined in Central Prison-I, Puzhal and order accordingly. Additional Chief Secretary to Government” 5 At the outset, Mr. A. Ramesh, learned Senior Counsel appearing for the petitioner, brought to the notice of this Court, the track record of John David and submitted that after John David was acquitted by the High Court, he did not at all get involved in any offence and after the judgment of the Supreme Court reversing the acquittal made by the High Court and confirming the judgment and order of conviction and sentence passed by the trial Court, he surrendered and his conduct in the prison thereafter has been exemplary. He placed before this Court the details of educational qualifications John David had acquired while in prison and also the conduct certificate dated 29.12.2017 given by the Superintendent of Prisons, Central Prison - I, Puzhal, which reads thus: He is a well behaved and obedient person and he has sincerely carried out the work allotted to him in an appreciable manner. He was released on leave on many occasions and he has returned to prison on time without any issues. He has also shared his knowledge with his fellow inmates, teaching them on English and Computer Science. He is well reformed now and fit to be reinstated into the society. His conduct is good and satisfactory.” Therefore, according to Mr. A. Ramesh, since John David has turned into a new leaf, the State Government should have considered his case favourably and released him under G.O. 64. In support of his contention that John David should have been released prematurely based on his good conduct in the prison, Mr. Ramesh placed reliance on the judgment of the Supreme Court in Satish @ Sabbe vs. The State of Uttar Pradesh [2020 SCC OnLine SC 811] and Home Secretary (Prison) and Others vs. H.Nilofer 6 Next, Mr. Ramesh took this Court through the impugned Government Order and submitted that the Government had misdirected itself by saying that “John David by using doctor's knife, severed the head and torso of Navarasu”, which is factually incorrect, inasmuch as there is no reference to the usage of doctor's knife in the alleged act of John David, but, on the contrary, the findings of the trial Court shows that the knives viz., M.Os.9 to 11, were used for cutting fruits and they were not surgical instruments. This according to Mr. Ramesh, shows non-application of mind on the part of the authorities. 7 Finally, Mr. Ramesh contended that the State Government had released the accused involved in far more heinous offences like the ones in infamous Dharmapuri bus burning case and Melavalavu case, which is discriminatory. 8 Per contra, Mr. Hasan Mohamed Jinnah, learned Public Prosecutor, refuted the aforesaid contentions and submitted that the Government had rejected the case of John David based on the manner in which the crime was committed and not on the basis that it was committed with a doctor's knives. He also submitted that there cannot be any negative equality under Article 14 of the Constitution of India. 9 We initially propose to address two arguments of Mr.A.Ramesh, viz., his reliance on Satish @ Sabbe (supra) and release of the accused in Dharmapuri bus burning case and Melavalavu case. 10 As far as the judgment in Satish @ Sabbe (supra) is concerned, the issue before the Supreme Court was non-application of Section 2 of the Uttar Pradesh Prisoners Release on Probation Act, 1938, by the executive authorities. This is limpid from paragraph 16 of the judgment “16. It is no doubt trite law that no convict can claim remission as a matter of right. However, in the present case, the circumstances are different. What had been sought and directed by this Court through repeated orders was not premature release itself, but due application of mind and a reasoned decision by executive authorities in terms of existing provisions regarding premature release. Clearly, once a law has been made by the appropriate legislature, then it is not open for executive authorities to surreptitiously subvert its mandate. Where the authorities are found to have failed to discharge their statutory obligations despite judicial directions, it would then not be inappropriate for a Constitutional Court while exercising its powers of judicial review to assume such task onto itself and direct compliance through a writ of mandamus.” In Tamil Nadu, we do not have similar provisions as in the State of Uttar Pradesh and hence, this judgment may not be of much avail to John David. In fact, in the same judgment, the Supreme Court has clearly held that no convict prisoner can claim remission as a matter of right. Thus, the case of John David should be decided only within the four corners of G.O. 64. 11 As regards the second argument of Mr. Ramesh, as rightly contended by the learned Public Prosecutor, there cannot be negative equality. At this juncture, apropos it is to allude to paragraph 28 of a very recent judgment of the Supreme Court in R. Muthukumar and Others vs. “28. A principle, axiomatic in this country's constitutional lore is that there is no negative equality. In other words, if there has been a benefit or advantage conferred on one or a set of people, without legal basis or justification, that benefit cannot multiply, or be relied upon as a principle of parity or equality.....” Therefore, just because the Government had fallen in error in releasing the accused in the infamous Dharmapuri bus burning case and Melavalavu case, the same error cannot be allowed to be perpetrated and relief granted to John 12 Mr. A. Ramesh placed strong reliance on a Division Bench judgment of this Court in K.Rajasekar vs. State and Others (MANU/TN/0641/2022), in which, one of us (PNPJ), was a Member, in support of his contention relating to equality under Article 14 of the Constitution of India. 13 In Rajasekar (supra), the husband, Rajasekar, and his wife, Shanthi, on account of abject poverty, smothered their three month old child and killed her. The Government granted remission to Rajasekar, but, refused to grant remission to Shanthi, on the ground that the crime was a heinous one. In that case, both of them were convicted under Section 302 read with 34 IPC, as nobody knew, who amongst the two had actually smothered the child, as that was done in secrecy. Therefore, on those facts, this Court held that, if according to the Government, the act of the husband was not heinous, the Government cannot be heard to say that, the act of the wife was heinous and deny her premature release. 14 As regards the submission of Mr. A. Ramesh that John David has turned into a new leaf and hence, he should not be deprived of the benefit of G.O. 64, it is true that the conduct of John David in the prison has been exemplary, as could be seen from the conduct certificate issued by the Superintendent of Prisons, Central Prison-I, Puzhal, extracted in paragraph 5 (supra) and that is the reason why the State Level Committee had recommended his premature release. However, be it noted, the State Government and the Governor are not bound by the recommendations of the State Level Committee, as the exercise of power for premature release of a convict prisoner under G.O. 64 is under Article 161 of the Constitution of India. This is manifest from paragraph 5 of G.O. 64. That apart, G.O. 64 “5(V) The above cases shall be examined with reference to the above guidelines on a case to case basis. (VIII) The life imprisonment prisoners cannot claim premature release as a matter of right.” The State Level Committee which is composed of the Inspector General of Prisons and the Deputy Inspector General of Prisons (Headquarters) can only recommend a case to the State Government and cannot exercise the power under Article 161 of the Constitution of India. The Governor of the State would exercise the power under Article 161, ibid., on the recommendation of the Cabinet. Thus, the Cabinet has the authority to accept or reject the recommendation of the State Level Committee and accordingly, give their advice to the Governor. In the instant case, it is obvious that the Governor has chosen to reject the recommendation of the State Level Committee qua premature release of John David, by the impugned Government Order. 15 Further, in Nilofer Nisha (supra), it has been clearly held at “26. We would also like to point out that the grant of remission or parole is not a right vested with the prisoner. It is a privilege available to the prisoner on fulfilling certain conditions. This is a discretionary power which has to be exercised by the authorities conferred with such powers under the relevant rules/regulations. The court cannot exercise these powers though once the powers are exercised, the Court may hold that the exercise of powers is not in accordance with rules. .....” In this case, the Government exercised its powers via the impugned order and what remains to be done by this Court is to see whether the exercise of powers by the authorities was in accordance with G.O. 64. 16 As contended by Mr. A. Ramesh, it is true that in the impugned order, it is stated that John David had used a doctor's knife, which is factually incorrect. However, we find that the impugned order is not predicated only on this erroneous fact. The other facts, viz., the head and torso of Navarasu was severed and the severed parts were thrown in various places and were recovered by the police, have been accepted by the trial Court and the Supreme Court as proved facts. What had weighed with the Government for refusing to grant the relief under G.O. 64 is the brutal and cruel manner in which the murder of Navarasu had been committed. 17 Now, the question is, can this Court, in exercise of powers under Article 226 of the Constitution of India, step into the shoes of the Governor and decide about the sufficiency of the reasons given in the impugned order. The answer to this question is available in Epuru Sudhakar and another vs. State of Andhra Pradesh and Others [(2006) 8 SCC 161], which has been extracted in the preamble portion of G.O. 64 itself. Nonetheless, the said portion is reproduced for ready reference. “......T he President and the Governor are the sole judges of the sufficiency of facts and of the appropriateness of granting the pardons and reprieves. However, this power is an enumerated power in the Constitution and its limitations, if any, must be found in the Constitution itself. Therefore, the principle of exclusive cognizance would not apply when and if the decision impugned is in derogation of a constitutional provision. This is the basic working test to be applied while granting pardons, reprieves, remissions and Ergo, this Court cannot examine the sufficiency of the facts for quashing the impugned Government Order. 18 As regards the reliance placed by the learned Senior Counsel on Nilofer Nisha (supra), the Supreme Court, in that case, proceeded to exercise its powers under Article 142 of the Constitution of India on a case- to-case basis and directed the release of the convict prisoners therein. We do not have the powers of the Supreme Court to engage in such an exercise, however sympathetic we may be towards John David. In fact, in Nilofer Nisha (supra), which arose from this Court, this Court had ordered premature release of convict prisoners under G.O.64, challenging which, the State went on appeal to the Supreme Court. After discussing the legal position, the Supreme Court, in paragraph 47, has allowed the State's appeals, but has, under Article 142 of the Constitution of India, gone into the case of each convict prisoner and has granted relief. 19 That apart, in Sikkander vs. State, represented by its Secretary to Government of Tamil Nadu and Others (2021 SCC Online Mad 6586), a Division Bench of this Court, in which, one of us (PNPJ) was a Member, has discussed all the aspects relating to premature release of convict prisoners under G.O.64 and the law laid down therein is a binding precedent. 20 In view of the foregoing discussion, we find no ground whatsoever to interfere with the impugned Government Order. In the result, this writ petition fails and is accordingly dismissed as being devoid of merits, however, sans costs. Connected W.M.P. stand closed. 1 The Additional Chief Secretary to Government 2 The Additional Director General of Police
The Madras High Court has said no to looking again at the case of John David. He is a prisoner found guilty in the well-known 1996 murder of Pon Navarasu. John David wanted to be let out of prison early. A group of judges, P.N. Prakash and A.A. Nakkiran, stated that the state government and the Governor do not have to follow the jail's suggestion to release John David early. The court added that only the Governor can use the power given by Article 161 of the Constitution to let a prisoner go early. But the Governor must act on the advice of the State Cabinet, which is a group of high-ranking state government officials. In 2011, the Supreme Court overturned the Madras High Court's decision to let John David go free. Instead, the Supreme Court confirmed the Cuddalore trial court's ruling that found him guilty and sentenced him to two life terms in prison. John David was the main person accused of killing Pon Navarasu. Pon Navarasu was a first-year medical student at Annamalai University and the son of a former leader of Madras University. The public's anger after this terrible murder led to Tamil Nadu creating its first law against ragging in schools and colleges, called the Tamil Nadu Prohibition of Ragging Act, 1997. Dr. Esther, John David's mother, asked the court to challenge a government order (G.O. 372). This order stopped her son from getting an early release that others received under another order (G.O. 64). That earlier order was part of the celebrations for Dr. M.G. Ramachandran's 100th birthday. But the group of judges would not consider her request and said the following: "The State Level Committee, which includes the Inspector General of Prisons and the Deputy Inspector General of Prisons, can only suggest a case to the state government. This committee cannot use the power under Article 161 of India's Constitution. The Governor of the State uses this power (Article 161) based on what the State Cabinet suggests. So, the Cabinet has the power to either agree with or refuse the State Level Committee's suggestion. Then, they give their advice to the Governor." The judges pointed out that letting a prisoner out early or temporarily (called parole) is not something they have a right to. They referred to an earlier court case (Home Secretary v. H.Nilofer Nisha). The judges also noted that even if the government was wrong about the type of knife used to cut the body into pieces, this small mistake does not make the crime any less terrible. It doesn't change how "brutal and cruel" Navarasu's murder was. The court also said that it could not change the government's order using its power under Article 226. This is because, unlike the Supreme Court, it does not have the special powers of Article 142. The court noted that the Supreme Court released prisoners in the Nilofer Shah case by looking at each case individually. The High Court also referred to another case (Epuru Sudhakar v. State of Andhra Pradesh) to highlight that only the President and the Governor can truly decide if there are enough reasons and if it's appropriate to grant pardons or reduce sentences. The lawyer for John David's mother argued that the government had let out prisoners who had committed even worse crimes earlier. But the judges said that "negative equality" isn't allowed. This means that just because some people might have unfairly received an advantage, it doesn't mean others should get the same unfair treatment. They referred to a Supreme Court case (R. Muthukumar v. TANGEDCO) which stated that if someone or a group of people received a benefit without a proper legal reason, that benefit cannot be used as a reason for others to demand the same treatment. So, the court added, just because the government made a mistake by releasing those found guilty in the well-known Dharmapuri bus burning case and the Melavalavu case, that same mistake cannot be repeated to help John David. The Dharmapuri Bus Burning happened in 2000. This was soon after the former Chief Minister, J. Jayalalithaa, was found guilty in the Kodaikanal Pleasant Stay Hotel case. In the bus burning, three students from Tamil Nadu Agricultural University died from their burns. Three men from the AIADMK political party were sentenced to death during their trial. However, their death sentences were later changed to a lesser punishment after they asked the Supreme Court to review their case. The state government then released them early in 2018. In the Melavalavu massacre, a village leader (Panchayat President) and six Dalit men were killed by villagers from a higher social group. These villagers were angry that a Scheduled Caste member (a term for Dalit, protected by the constitution) had been elected as the Panchayat President. The Madras High Court had previously noted, when it confirmed the guilty verdicts in that case, that the people accused did not just murder the victims. Their actions were also meant to scare the entire Scheduled Caste community from even trying to run in local elections for village leadership. The state government allowed thirteen people found guilty in that case to be released early in 2019. John David's mother's lawyer also mentioned another case (Satish v. State of Uttar Pradesh, 2020). The court explained that in that case, the early release was allowed because government officials did not follow a specific rule (Section 2 of the Uttar Pradesh Prisoners Release on Probation Act, 1938). It was not because the prisoner had a right to be released early. The court also made clear that a previous decision by a different group of Madras High Court judges (K. Rajasekar v. State, 2022) was about a different situation. In that case, a husband and wife killed a child. Because it wasn't clear who exactly committed the murder, only the husband was allowed early release, while the wife was denied it because she had committed a terrible crime. The court admitted that a report from the Superintendent of Police (Prisons) showed John David had truly changed and behaved very well in jail. However, the court ended by saying that good behavior alone does not make him qualified for early release under the rules. It remains up to the Governor to decide.
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1. No one is present either for the applicant or for respondents no. 2 to 6 when this case is taken up for hearing. Learned A.G.A. is however present for the State. 2. Instant appeal has been filed by the victim under Section 372 Cr.P.C. against the judgment and order dated 07.03.2013 passed by the Judicial Magistrate, Ambedkar Nagar whereby the trial Court has convicted the private respondents under Sections 323, 498-A, 506 I.P.C. and Section 3/4 D.P. Act, however, the accused persons/private respondents instead of sentencing to undergo imprisonment were given the benefit of Probation of Offenders Act, 1958 and released on probation and also against the judgment and order dated 30.09.2016 passed by the Appellate Court i.e. Additional Sessions Judge (Fast Track Court-II), Ambedkar Nagar, whereby the appeal preferred by the state against sentence was dismissed. 3. Perusal of the record would reveal that the instant appeal has been listed after a long time as it was on 04.12.2017 this appeal was last listed and vide order dated 20.11.2017 the delay, which had occurred in preferring the appeal has been condoned by a co-ordinate Bench of this Court and the appeal was directed to be listed for 4. Section 372 of the Cr.P.C., under which the instant appeal has been preferred, is reproduced for ready reference as under:- "372. No appeal to lie unless otherwise provided.— No appeal shall lie from any judgment or order of a criminal court except as provided for by this Code or by any other law for the time being in force: Provided that the victim shall have a right to prefer an appeal against any order passed by the court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the court to which an appeal ordinarily lies against the order of conviction of such court." 5. Perusal of this Section would reveal that the same is starting with a Non-Obstante Clause declaring that no appeal shall lie from any judgment or order of a Criminal Court except as provided by this Code or by any other law for the time being in force. Thus, it is clear that the appeal could only be preferred in accordance with the scheme provided in the Cr.P.C. or provided by any other law for the time being in force. The proviso to Section 372 Cr.P.C. provides a right to the victim of an offence to prefer an appeal and it says that the victim (as defined under Section 2w (wa) of the Cr.P.C. may prefer an appeal against any judgment or order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation. Thus, the appeal under Section 372 Cr.P.C. could only be filed on the happening of three situations namely (ii) When the accused person(s0 have been convicted for a lesser (iii) Where inadequate compensation has been imposed by the Court 6. The instant appeal has been preferred by the victim against the order of the trial court as well as of the first Appellate Court and it is evident that though the accused persons were convicted by the trial Court for the offence committed under Sections 323, 498-A, 506 I.P.C. and Section 3/4 D.P. Act, however, instead of sentencing them to undergo imprisonment the trial Court has given them benefit of Section 4 of Probation of Offenders Act, 1958 and released themon probation and the appeal preferred by the state against sentencing has also been dismissed by the appellate Court. 7. The issue as to whether a victim of the crime may prefer an appeal under section 372 Crpc against inadequacy of sentence awarded to the accused persons is now no more res integra. Hon’ble Supreme Court in National Commission For Women v. State of Delhi, (2010) 12 SCC 599 has held as under:- “11. An appeal is a creature of a statute and cannot lie under any inherent power. This Court does undoubtedly grant leave to appeal under the discretionary power conferred under Article 136 of the Constitution of India at the behest of the State or an affected private individual but to permit anybody or an organisation pro bono publico to file an appeal would be a dangerous doctrine and would cause utter confusion in the criminal justice system. We are, therefore, of the opinion that the special leave petition itself was not maintainable. 12. In Pritam Singh v. State [AIR 1950 SC 169 : (1950) 51 Cri LJ 1270] this Court while dealing with a criminal matter (after the grant of leave under Article 136 of the Constitution) considered the scope and ambit of this article and observed: “9. On a careful examination of Article 136 along with the preceding article, it seems clear that the wide discretionary power with which this Court is invested under it is to be exercised sparingly and in exceptional cases only, and as far as possible a more or less uniform standard should be adopted in granting special leave in the wide range of matters which can come up before it under this article. By virtue of this article, we can grant special leave in civil cases, in criminal cases, in income tax cases, in cases which come up before different kinds of tribunals and in a variety of other cases. The only uniform standard which in our opinion can be laid down in the circumstances is that Court should grant special leave to appeal only in those cases where special circumstances are shown to exist. … It is sufficient for our purpose to say that though we are not bound to follow them too rigidly since the reasons, constitutional and administrative, which sometimes weighed with the Privy Council, need not weigh with us, yet some of those principles are useful as furnishing in many cases a sound basis for invoking the discretion of this Court in granting special leave. Generally speaking, this Court will not grant special leave, unless it is shown that exceptional and special circumstances exist, that substantial and grave injustice has been done and that the case in question presents features of sufficient gravity to warrant a review of the decision appealed against.” 13. In P.S.R. Sadhanantham v. Arunachalam [(1980) 3 SCC 141 : 1980 SCC (Cri) 649] this Court was dealing with the locus standi of a private person, in this case the victim's brother, who was neither a complainant nor a first informant in the criminal case but had filed a petition under Article 136 of the Constitution of India. This Court observed that the strictest vigilance was required to be maintained to prevent the abuse of the process of court, more particularly, in criminal matters, and ordinarily a private party other than the complainant, should not be permitted to file an appeal under Article 136, though the broad scope of the article postulated an exception in suitable cases. It was spelt out as under: (SCC p. 145, para 7) “7. Specificity being essential to legality, let us see if the broad spectrum spread out of Article 136 fills the bill from the point of view of ‘procedure established by law’. In express terms, Article 136 does not confer a right of appeal on a party as such but it confers a wide discretionary power on the Supreme Court to interfere in suitable cases. The discretionary dimension is considerable but that relates to the power of the court. The question is whether it spells by implication, a fair procedure as contemplated by Article 21. In our view, it does. Article 136 is a special jurisdiction. It is residuary power; it is extraordinary in its amplitude, its limit, when it chases injustice, is the sky itself. This Court functionally fulfils itself by reaching out to injustice wherever it is and this power is largely derived in the common run of cases from Article 136. Is it merely a power in the court to be exercised in any manner it fancies? Is there no procedural limitation in the manner of exercise and the occasion for exercise? Is there no duty to act fairly while hearing a case under Article 136, either in the matter of grant of leave or, after such grant, in the final disposal of the appeal? We have hardly any doubt that there is a procedure necessarily implicit in the power vested in the summit court. It must be remembered that Article 136 confers jurisdiction on the highest court. The Founding Fathers unarguably intended in the very terms of Article 136 that it shall be exercised by the highest judges of the land with scrupulous adherence to judicial principles well established by precedents in our jurisprudence. Judicial discretion is canalised authority, not arbitrary eccentricity.” 14. The Court then examined the implications of completely shutting out a private party from filing a petition under Article 136 on the locus standi and observed thus: (Arunachalam case [(1980) 3 SCC 141 : 1980 SCC (Cri) 649] , SCC p. 147, “14. Having said this, we must emphasise that we are living in times when many societal pollutants create new problems of unredressed grievance when the State becomes the sole repository for initiation of criminal action. Sometimes, pachydermic indifference of bureaucratic officials, at other times politicisation of higher functionaries may result in refusal to take a case to this Court under Article 136 even though the justice of the lis may well justify it. While ‘the criminal law should not be used as a weapon in personal vendettas between private individuals’, as Lord Shawcross once wrote, in the absence of an independent prosecution authority easily accessible to every citizen, a wider connotation of the expression ‘standing’ is necessary for Article 136 to further its mission.” 15. A reading of the aforesaid excerpts from the two judgments would reveal that while an appeal by a private individual can be entertained but it should be done sparingly and after due vigilance and particularly in a case where the remedy has been shut out for the victims due to mala fides on the part of the State functionaries or due to inability of the victims to approach the Court. In the present matter, we find that neither the State which is the complainant nor the heirs of the deceased have chosen to file a petition in the High Court. As this responsibility has been taken up by the Commission at its own volition this is clearly not permissible in the light of the aforesaid judgments.” 8. In Parvinder Kansal v. State (NCT of Delhi), (2020) 19 SCC 496 Hon’ble Supreme Court has also held as under:- “8. Chapter XXIX of the Code of Criminal Procedure, 1973 deals with “Appeals” and Section 372 makes it clear that no appeal to lie unless otherwise provided by the Code or any other law for the time being in force. It is not in dispute that in the instant case appellant has preferred appeal only under Section 372 CrPC. The proviso is inserted to Section 372 CrPC by Act 5 of 2009. Section 372 and the proviso which is subsequently inserted read as under: “372. No appeal to lie unless otherwise provided.— No appeal shall lie from any judgment or order of a criminal court except as provided for by this Code or by any other law for the time being in force: Provided that the victim shall have a right to prefer an appeal against any order passed by the court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the court to which an appeal ordinarily lies against the order of conviction of such court.” A reading of the proviso makes it clear that so far as victim's right of appeal is concerned, same is restricted to three eventualities, namely, acquittal of the accused; conviction of the accused for lesser offence; or for imposing inadequate compensation. While the victim is given opportunity to prefer appeal in the event of imposing inadequate compensation, but at the same time there is no provision for appeal by the victim for questioning the order of sentence as inadequate, whereas Section 377 CrPC gives the power to the State Government to prefer appeal for enhancement of sentence. While it is open for the State Government to prefer appeal for inadequate sentence under Section 377 CrPC but similarly no appeal can be maintained by victim under Section 372 CrPC on the ground of inadequate sentence. It is fairly well-settled that the remedy of appeal is creature of the statute. Unless same is provided either under Code of Criminal Procedure or by any other law for the time being in force no appeal, seeking enhancement of sentence at the instance of the victim, is maintainable. Further we are of the view that the High Court while referring to the judgment of this Court in National Commission for Women v. State (NCT of Delhi) [National Commission for Women v. State (NCT of Delhi), (2010) 12 SCC 599 : (2011) 1 SCC (Cri) 774] has rightly relied on the same and dismissed the appeal, as not maintainable.” 9. Above placed case laws makes it clear that no appeal can be maintained by the victim under Section 372 CrPC on the ground of inadequacy of sentence. Thus the appeal preferred by the victim of the crime against inadequacy of sentence is not maintainable and is dismissed as such.
The Allahabad High Court has again said that a victim cannot appeal a sentence just because they think it's too light. This means if a victim feels the punishment given was not enough, they can't use Section 372 of the Criminal Procedure Code (CrPC) to challenge it. An appeal based on an "inadequate sentence" (meaning, not harsh enough) cannot be accepted by the court. The CrPC is the main law that sets out how criminal trials should happen. Justice Mohd. Faiz Alam Khan explained that under Section 372 CrPC, appeals can only be made in three specific situations: (i) When the person accused of the crime is found "not guilty" (acquitted); (ii) When the accused person is found guilty, but for a less serious crime than what they were charged with; (iii) When the court orders too little money to be paid as "compensation" (payment for damages) to the victim. The case in brief In this specific case, the Court was reviewing an appeal brought by a victim under Section 372 CrPC. This appeal was challenging a decision made by a lower court judge, called a Judicial Magistrate. The Magistrate's court, also known as the trial court, had found the people accused (the "private respondents") guilty of several crimes, including assault and domestic abuse. The victim filed this appeal because the accused individuals were allowed to go free on "probation" under a law called the Probation of Offenders Act of 1958. This meant they weren't sent to jail. The victim felt that being released on probation was not a harsh enough punishment, so they appealed, arguing the "sentence was inadequate." It's important to know that this appeal also challenged a decision from a higher court, known as the Appellate Court. This higher court had previously rejected an appeal filed by the government (the state) that also argued the sentence was too light. Court's observations First, the Court made it clear that any appeal must follow the specific rules laid out in the Criminal Procedure Code (CrPC) or any other law that is currently in effect. The Court then looked closely at Section 372 CrPC again. It noted that this rule allows a victim to appeal if: the accused person is found not guilty; or if they are found guilty of a less serious crime; or if the court orders too little compensation. But, the Court stressed, this rule *does not* allow an appeal just because the victim thinks the punishment given (the sentence) was too lenient or "inadequate." Moreover, the Court emphasized that this exact legal question – whether a crime victim can appeal under Section 372 CrPC because they believe the punishment given was not severe enough – has already been settled. India's highest court, the "Apex Court" (also known as the Supreme Court), decided this in two past cases. In both of these Supreme Court cases, the "Apex Court" ruled clearly: a victim cannot use Section 372 CrPC to appeal a decision simply because they think the sentence given to the accused person was not harsh enough. Because of all this, the victim's appeal, which argued that the punishment was too light, was decided to be "not maintainable" (meaning it couldn't proceed). So, the court dismissed it.
1. No one is present either for the applicant or for respondents no. 2 to 6 when this case is taken up for hearing. Learned A.G.A. is however present for the State. 2. Instant appeal has been filed by the victim under Section 372 Cr.P.C. against the judgment and order dated 07.03.2013 passed by the Judicial Magistrate, Ambedkar Nagar whereby the trial Court has convicted the private respondents under Sections 323, 498-A, 506 I.P.C. and Section 3/4 D.P. Act, however, the accused persons/private respondents instead of sentencing to undergo imprisonment were given the benefit of Probation of Offenders Act, 1958 and released on probation and also against the judgment and order dated 30.09.2016 passed by the Appellate Court i.e. Additional Sessions Judge (Fast Track Court-II), Ambedkar Nagar, whereby the appeal preferred by the state against sentence was dismissed. 3. Perusal of the record would reveal that the instant appeal has been listed after a long time as it was on 04.12.2017 this appeal was last listed and vide order dated 20.11.2017 the delay, which had occurred in preferring the appeal has been condoned by a co-ordinate Bench of this Court and the appeal was directed to be listed for 4. Section 372 of the Cr.P.C., under which the instant appeal has been preferred, is reproduced for ready reference as under:- "372. No appeal to lie unless otherwise provided.— No appeal shall lie from any judgment or order of a criminal court except as provided for by this Code or by any other law for the time being in force: Provided that the victim shall have a right to prefer an appeal against any order passed by the court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the court to which an appeal ordinarily lies against the order of conviction of such court." 5. Perusal of this Section would reveal that the same is starting with a Non-Obstante Clause declaring that no appeal shall lie from any judgment or order of a Criminal Court except as provided by this Code or by any other law for the time being in force. Thus, it is clear that the appeal could only be preferred in accordance with the scheme provided in the Cr.P.C. or provided by any other law for the time being in force. The proviso to Section 372 Cr.P.C. provides a right to the victim of an offence to prefer an appeal and it says that the victim (as defined under Section 2w (wa) of the Cr.P.C. may prefer an appeal against any judgment or order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation. Thus, the appeal under Section 372 Cr.P.C. could only be filed on the happening of three situations namely (ii) When the accused person(s0 have been convicted for a lesser (iii) Where inadequate compensation has been imposed by the Court 6. The instant appeal has been preferred by the victim against the order of the trial court as well as of the first Appellate Court and it is evident that though the accused persons were convicted by the trial Court for the offence committed under Sections 323, 498-A, 506 I.P.C. and Section 3/4 D.P. Act, however, instead of sentencing them to undergo imprisonment the trial Court has given them benefit of Section 4 of Probation of Offenders Act, 1958 and released themon probation and the appeal preferred by the state against sentencing has also been dismissed by the appellate Court. 7. The issue as to whether a victim of the crime may prefer an appeal under section 372 Crpc against inadequacy of sentence awarded to the accused persons is now no more res integra. Hon’ble Supreme Court in National Commission For Women v. State of Delhi, (2010) 12 SCC 599 has held as under:- “11. An appeal is a creature of a statute and cannot lie under any inherent power. This Court does undoubtedly grant leave to appeal under the discretionary power conferred under Article 136 of the Constitution of India at the behest of the State or an affected private individual but to permit anybody or an organisation pro bono publico to file an appeal would be a dangerous doctrine and would cause utter confusion in the criminal justice system. We are, therefore, of the opinion that the special leave petition itself was not maintainable. 12. In Pritam Singh v. State [AIR 1950 SC 169 : (1950) 51 Cri LJ 1270] this Court while dealing with a criminal matter (after the grant of leave under Article 136 of the Constitution) considered the scope and ambit of this article and observed: “9. On a careful examination of Article 136 along with the preceding article, it seems clear that the wide discretionary power with which this Court is invested under it is to be exercised sparingly and in exceptional cases only, and as far as possible a more or less uniform standard should be adopted in granting special leave in the wide range of matters which can come up before it under this article. By virtue of this article, we can grant special leave in civil cases, in criminal cases, in income tax cases, in cases which come up before different kinds of tribunals and in a variety of other cases. The only uniform standard which in our opinion can be laid down in the circumstances is that Court should grant special leave to appeal only in those cases where special circumstances are shown to exist. … It is sufficient for our purpose to say that though we are not bound to follow them too rigidly since the reasons, constitutional and administrative, which sometimes weighed with the Privy Council, need not weigh with us, yet some of those principles are useful as furnishing in many cases a sound basis for invoking the discretion of this Court in granting special leave. Generally speaking, this Court will not grant special leave, unless it is shown that exceptional and special circumstances exist, that substantial and grave injustice has been done and that the case in question presents features of sufficient gravity to warrant a review of the decision appealed against.” 13. In P.S.R. Sadhanantham v. Arunachalam [(1980) 3 SCC 141 : 1980 SCC (Cri) 649] this Court was dealing with the locus standi of a private person, in this case the victim's brother, who was neither a complainant nor a first informant in the criminal case but had filed a petition under Article 136 of the Constitution of India. This Court observed that the strictest vigilance was required to be maintained to prevent the abuse of the process of court, more particularly, in criminal matters, and ordinarily a private party other than the complainant, should not be permitted to file an appeal under Article 136, though the broad scope of the article postulated an exception in suitable cases. It was spelt out as under: (SCC p. 145, para 7) “7. Specificity being essential to legality, let us see if the broad spectrum spread out of Article 136 fills the bill from the point of view of ‘procedure established by law’. In express terms, Article 136 does not confer a right of appeal on a party as such but it confers a wide discretionary power on the Supreme Court to interfere in suitable cases. The discretionary dimension is considerable but that relates to the power of the court. The question is whether it spells by implication, a fair procedure as contemplated by Article 21. In our view, it does. Article 136 is a special jurisdiction. It is residuary power; it is extraordinary in its amplitude, its limit, when it chases injustice, is the sky itself. This Court functionally fulfils itself by reaching out to injustice wherever it is and this power is largely derived in the common run of cases from Article 136. Is it merely a power in the court to be exercised in any manner it fancies? Is there no procedural limitation in the manner of exercise and the occasion for exercise? Is there no duty to act fairly while hearing a case under Article 136, either in the matter of grant of leave or, after such grant, in the final disposal of the appeal? We have hardly any doubt that there is a procedure necessarily implicit in the power vested in the summit court. It must be remembered that Article 136 confers jurisdiction on the highest court. The Founding Fathers unarguably intended in the very terms of Article 136 that it shall be exercised by the highest judges of the land with scrupulous adherence to judicial principles well established by precedents in our jurisprudence. Judicial discretion is canalised authority, not arbitrary eccentricity.” 14. The Court then examined the implications of completely shutting out a private party from filing a petition under Article 136 on the locus standi and observed thus: (Arunachalam case [(1980) 3 SCC 141 : 1980 SCC (Cri) 649] , SCC p. 147, “14. Having said this, we must emphasise that we are living in times when many societal pollutants create new problems of unredressed grievance when the State becomes the sole repository for initiation of criminal action. Sometimes, pachydermic indifference of bureaucratic officials, at other times politicisation of higher functionaries may result in refusal to take a case to this Court under Article 136 even though the justice of the lis may well justify it. While ‘the criminal law should not be used as a weapon in personal vendettas between private individuals’, as Lord Shawcross once wrote, in the absence of an independent prosecution authority easily accessible to every citizen, a wider connotation of the expression ‘standing’ is necessary for Article 136 to further its mission.” 15. A reading of the aforesaid excerpts from the two judgments would reveal that while an appeal by a private individual can be entertained but it should be done sparingly and after due vigilance and particularly in a case where the remedy has been shut out for the victims due to mala fides on the part of the State functionaries or due to inability of the victims to approach the Court. In the present matter, we find that neither the State which is the complainant nor the heirs of the deceased have chosen to file a petition in the High Court. As this responsibility has been taken up by the Commission at its own volition this is clearly not permissible in the light of the aforesaid judgments.” 8. In Parvinder Kansal v. State (NCT of Delhi), (2020) 19 SCC 496 Hon’ble Supreme Court has also held as under:- “8. Chapter XXIX of the Code of Criminal Procedure, 1973 deals with “Appeals” and Section 372 makes it clear that no appeal to lie unless otherwise provided by the Code or any other law for the time being in force. It is not in dispute that in the instant case appellant has preferred appeal only under Section 372 CrPC. The proviso is inserted to Section 372 CrPC by Act 5 of 2009. Section 372 and the proviso which is subsequently inserted read as under: “372. No appeal to lie unless otherwise provided.— No appeal shall lie from any judgment or order of a criminal court except as provided for by this Code or by any other law for the time being in force: Provided that the victim shall have a right to prefer an appeal against any order passed by the court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the court to which an appeal ordinarily lies against the order of conviction of such court.” A reading of the proviso makes it clear that so far as victim's right of appeal is concerned, same is restricted to three eventualities, namely, acquittal of the accused; conviction of the accused for lesser offence; or for imposing inadequate compensation. While the victim is given opportunity to prefer appeal in the event of imposing inadequate compensation, but at the same time there is no provision for appeal by the victim for questioning the order of sentence as inadequate, whereas Section 377 CrPC gives the power to the State Government to prefer appeal for enhancement of sentence. While it is open for the State Government to prefer appeal for inadequate sentence under Section 377 CrPC but similarly no appeal can be maintained by victim under Section 372 CrPC on the ground of inadequate sentence. It is fairly well-settled that the remedy of appeal is creature of the statute. Unless same is provided either under Code of Criminal Procedure or by any other law for the time being in force no appeal, seeking enhancement of sentence at the instance of the victim, is maintainable. Further we are of the view that the High Court while referring to the judgment of this Court in National Commission for Women v. State (NCT of Delhi) [National Commission for Women v. State (NCT of Delhi), (2010) 12 SCC 599 : (2011) 1 SCC (Cri) 774] has rightly relied on the same and dismissed the appeal, as not maintainable.” 9. Above placed case laws makes it clear that no appeal can be maintained by the victim under Section 372 CrPC on the ground of inadequacy of sentence. Thus the appeal preferred by the victim of the crime against inadequacy of sentence is not maintainable and is dismissed as such.
The Allahabad High Court has again said that a victim cannot appeal a sentence just because they think it's too light. This means if a victim feels the punishment given was not enough, they can't use Section 372 of the Criminal Procedure Code (CrPC) to challenge it. An appeal based on an "inadequate sentence" (meaning, not harsh enough) cannot be accepted by the court. The CrPC is the main law that sets out how criminal trials should happen. Justice Mohd. Faiz Alam Khan explained that under Section 372 CrPC, appeals can only be made in three specific situations: (i) When the person accused of the crime is found "not guilty" (acquitted); (ii) When the accused person is found guilty, but for a less serious crime than what they were charged with; (iii) When the court orders too little money to be paid as "compensation" (payment for damages) to the victim. The case in brief In this specific case, the Court was reviewing an appeal brought by a victim under Section 372 CrPC. This appeal was challenging a decision made by a lower court judge, called a Judicial Magistrate. The Magistrate's court, also known as the trial court, had found the people accused (the "private respondents") guilty of several crimes, including assault and domestic abuse. The victim filed this appeal because the accused individuals were allowed to go free on "probation" under a law called the Probation of Offenders Act of 1958. This meant they weren't sent to jail. The victim felt that being released on probation was not a harsh enough punishment, so they appealed, arguing the "sentence was inadequate." It's important to know that this appeal also challenged a decision from a higher court, known as the Appellate Court. This higher court had previously rejected an appeal filed by the government (the state) that also argued the sentence was too light. Court's observations First, the Court made it clear that any appeal must follow the specific rules laid out in the Criminal Procedure Code (CrPC) or any other law that is currently in effect. The Court then looked closely at Section 372 CrPC again. It noted that this rule allows a victim to appeal if: the accused person is found not guilty; or if they are found guilty of a less serious crime; or if the court orders too little compensation. But, the Court stressed, this rule *does not* allow an appeal just because the victim thinks the punishment given (the sentence) was too lenient or "inadequate." Moreover, the Court emphasized that this exact legal question – whether a crime victim can appeal under Section 372 CrPC because they believe the punishment given was not severe enough – has already been settled. India's highest court, the "Apex Court" (also known as the Supreme Court), decided this in two past cases. In both of these Supreme Court cases, the "Apex Court" ruled clearly: a victim cannot use Section 372 CrPC to appeal a decision simply because they think the sentence given to the accused person was not harsh enough. Because of all this, the victim's appeal, which argued that the punishment was too light, was decided to be "not maintainable" (meaning it couldn't proceed). So, the court dismissed it.
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1. This is wife's appeal directed against the judgment and order dated 19.03.2020 passed by the Additional Principal Judge, Family Court, Bareilly under Section 13 of the Hindu Marriage Act. The marriage of the appellant with the respondent was held on 15.12.2013. 2. The divorce petition had been filed by the respondent husband on 6.3.2017 on the ground that the appellant, his wife, had left her matrimonial home on 10.1.2015 without any rhyme or reason, in his absence, alongwith her family members. At that point of time, the appellant wife was pregnant for two months. It was alleged in the divorce petition that while leaving her matrimonial home, the appellant took all her jewellery as also Rs.36,000/- in cash kept by the respondent in his safe. On 25.1.2015, the respondent went to bring the appellant back to his home when she refused to maintain any kind of relationship with him. 3. It was further contended that on 22.8.2015, the appellant had given birth to a girl child. She was admitted in the hospital by the respondent who had borne all expenses of birth of his daughter. The appellant wife went to her paternal home after birth of the child. After about eight to ten days, the respondent went to bring the appellant back to his home when she denied to meet him and did not allow him to even see his child. On 15.1.2017 the respondent again went alongwith his relative to bring the appellant to his home when she had denied to accompany him. It is, thus, stated in the divorce petition that the appellant was residing separately since 10.1.2015 and she has refused to keep relationship with the 4. The plea in the divorce petition, thus, is that the appellant wife had deserted her husband/respondent without any rhyme or reason and refused to cohabit with him. The cause of action for filing the divorce petition stated to have arisen on 10.1.2015 when appellant wife had left her matrimonial home along with her father and brother and lastly on 15.1.2017 when she refused to accompany the respondent to her matrimonial home. Another ground for seeking divorce is that the appellant had refused to do the household work and misbehaved with the family members of the respondent. She used to go to her paternal home or to her relatives without any information to the respondent or his family 5. The trial court had framed four issues; Issue nos. 1 and 2 framed by the trial court read as under: 6. In support of the averments in the divorce petition, the respondent husband had produced five witnesses including himself as P.W-1. P.W-2 Amit Kapoor is brother of the respondent; P.W-3 is father-in-law of P.W.-2 Amit Kapoor and P.W-4 is neighbour of the respondent; P.W-5 is an acquaintance. In rebuttal, appellant-wife entered in the witness box as O.P.W-1 and her father Atar Singh as O.P.W-2. 7. An application under Section 24 of the Hindu Marriage Act was filed by the appellant on 6.9.2017 which was contested by the respondent by filing his objection on 26.2.2018. By the order dated 10.7.2018, while allowing the application under Section 24 of the Hindu Marriage Act, an amount of Rs.5,000/- per month was awarded to the appellant and Rs.2000/- for her daughter towards monthly maintenance. In addition to the same, Rs.20,000/- in lumpsum was awarded towards the cost of the 8. A written statement in rebuttal was filed by the appellant wife on 06.10.2018 wherein she had categorically denied the assertion that she had left her matrimonial home on 10.1.2015 rather it was stated therein that the appellant lived with the respondent, her husband, in his house uptil July, 2016. A child was born out of the wedlock on 22.8.2015 in Rashmi Goyal Hospital situated at Rampur Garden Bareilly. The appellant was admitted in the hospital by the respondent on 22.8.2015 who had signed the consent letter for the surgery. It is emphatically denied that the appellant had refused to have sexual relationship with the respondent. It was further stated that after the birth of the girl child the respondent did not care to take the appellant to his home from the hospital and she had to go to her father's home. After about a period of four months, the respondent went to the house of the appellant's parents and when the matter was amicably settled and the appellant came to live with the respondent in his house. On 13.6.2016, their daughter had to undergo an operation for which she was admitted in Medanta Medicity Hospital Gurgaon when both the appellant and respondent were with their child. After surgery, the appellant-wife came back to the house of the respondent and stayed there until 21 July, 2016 when she was turned out of her matrimonial home along with her infant daughter. It is alleged in the written statement that the original documents such as Aadhar Card, Pan Card, Driving licence, Voter Id, Marriage certificate and other documents pertaining to the educational qualification of the appellant-wife were in the possession of the respondent and he was misusing them by forging her 9. An F.I.R under Section 498, 506 I.P.C and ¾ of D.P Act was lodged in P.S Prem Nagar Bareilly on 27.01.2018 by the appellant-wife against the respondent in respect of which investigation was going on whereas interim protection had been granted by this Court in a writ petition filed by the respondent. It is denied by the appellant that she took her jewellery while leaving the home of the respondent. It is also denied that the respondent went to the house of the parents of the appellant on 25.1.2015. 10. Some photographs have been filed by the appellant along with the written statement to prove that she along with her daughter were living alongwith the respondent. It was lastly stated that on 15.12.2015 marriage of the brother of the respondent was solemnised wherein the appellant had participated. Some of the photographs in which the appellant and respondent could be seen with the wife of the elder brother of the respondent were of the month, February, 2016. It is lastly stated that the respondent had filed Income Tax Returns of the appellant by forging her signature for the assesment year, 2013-14 till 2016-17. 11. The contention of the appellant, thus, is that she was turned out of her matrimonial home by the respondent on 21.7.2016 without any reasonable cause and the respondent did not care for his wife and the infant child. 12. Noticing the pleadings of the parties, the evidence on record, in his statement as P.W-1, the respondent has admitted factum of marriage though denied the demand of dowry and stated that his wife/appellant used to threatened him that she would implicate him in a false case of dowry. The averment of desertion on the part of the wife as on 10.1.2015, as stated in the divorce petition, has been reiterated in the examination-in- chief. It was also stated that the appellant was admitted in the hospital by the respondent during birth of their child and the respondent borne all the expenditures therein. It was also admitted that during surgery of their daughter on 13.6.2016 in Medanta Medicity Hospital, the appellant was present. However, it is denied that at that point of time the appellant, his wife, was living with him. The photographs marked as paper nos.30Ga/4, 30Ga/5, 30Ga/6, 30Ga/7, 30Ga/8, and 30Ga/9 were admitted by the respondent. It was also admitted that the marriage of his brother on 15.12.2015 was attended by the appellant and the said date is also the wedding anniversary of the appellant and the respondent. Paper no.20/14 is the photograph of 15.12.2015 which was the date of marriage of the brother of the respondent, his own wedding anniversary. It is admitted that in the said photograph, wife and daughter of the respondent could be seen with him. Paper no.30Ga/10 is the photograph wherein the appellant, respondent and brother and sister-in-law of the respondent could be seen together. This document is also admitted. Other photographs marked as paper no.30Ga/11, 30Ga/13, 30Ga/15, 30Ga/16, 30 Ga/17 and 30Ga/18 are also admitted to the appellant which are photographs of his daughter with his parents. Paper no.30Ga/18 is the photograph which is admittedly of the respondent and his wife, but he has refused to recognize the place where it was taken. 13. As noted above, it is pertinent to state here that in one of the photographs paper no.30Ga/6, the respondent could be seen along with his wife (appellant) and daughter. The respondent has admitted that the said photograph was taken after birth of his daughter when she was about four to five months. There are photographs of mother and daughter of the respondent with him which are admitted though it is not specified by him as to when and where those photographs were taken and what was the age of his child at that point of time. One of the photographs marked as 30Ga/9 is of the drawing room of the house of the respondent where his daughter, who was about 7-8 months old, could be seen on a walker. In the cross examination, the respondent had categorically stated that his brother Amit got married on 15.12.2015. In the marriage anniversary of his brother which was on 15.12.2016, the appellant was not present. We are surprised to note at this moment that the family court had recorded a finding that the appellant had attended the wedding anniversary of his brother-in-law on 15.12.2016 and the photograph paper no.30Ga/9 was of the said function which was held in the house of the respondent. It is difficult to understand as to what was the basis of the said finding. 14. Contrary to this, the appellant in her statement before the family court has categorically asserted that her parent's house and her matrimonial house are located barely at a distance of 400 metres. Her husband took her to the hospital when their child was born on 22.8.2015. Paper no.30Ga/9 has been proved to be the photograph of her child which was taken in the drawing room of the house of the respondent. Paper no.30Ga/10 is the photograph of the appellant along with the respondent and her sister-in-law and brother-in- law Amit Kapoor. This photograph was stated to have been taken in the month of February, 2016 when they went to attend a marriage in the family. Paper no.30Ga/11 is also the photograph of the appellant and her sister-in-law (wife of Amit Kapoor- brother of respondent). Paper no.30/12 is the photograph of the respondent, his daughter alongwith his mother and was stated to have been clicked in the drawing room of the house of the respondent. Paper no.30Ga/14 is the photograph of their marriage anniversary on 15.12.2015 (which incidently was the date of marriage of brother of the respondent). Paper no.30Ga/15 is the photograph of Amit Kapoor (brother of the respondent), daughter of the appellant and mother of the respondent. Paper no.30Ga/17 is the photograph which as per the statement of the appellant is of their marriage anniversary which is also admitted to the respondent as he stated that the said photograph was taken in the marriage of his brother Amit wherein his wife could also be seen. Paper no.30Ga/18 is the photograph wherein the appellant and respondent could be seen together and it was stated by the appellant that the said photograph was clicked in a Mall in Delhi on 14.2.2016 whereas the respondent had refused to recognise the place where it was taken. 15. The appellant in her statement has categorically stated that she was kicked out of her matrimonial home on 21.7.2016 and the first information report was lodged against the respondent thereafter. She was confronted on the allegations of demand of dowry in the cross examination. The appellant has asserted in cross that the marriage of her brother-in-law was held after two years of their marriage on 15.12.2015, and their marriage anniversary also fell on the said date. She had reiterated that she remained in the house of the respondent till July, 2016 and at that point of time she was not pregnant. She had categorically denied of leaving her matrimonial home in January, 2015. 16. In support of the plea of desertion, the respondent has produced other witnesses also. P.W-2 is the brother of the respondent namely Amit Kapoor. He has stated that the appellant had left their home on 10.1.2015 alongwith her father saying that she would come back after few days. He states that the father of the appellant remained in their house for around 30-45 minutes. In cross, he states that whatever has been stated in paragraph-5 in his examination-in-chief with regard to the appellant taking her jewellery and money while leaving on 10.1.2015, was based on the information given to him by his brother, the respondent herein. 17. P.W-3 is the father-in-law of P.W-2-Amit Kapoor. He states that he was an acquaintance of the family of the respondent since, 2012 and in the year 2015, the talk of marriage of his daughter with Amit Kapoor, brother of the respondent, was going on. On 10.1.2015, he went to the house of the respondent to invite them for his wedding anniversary. While he was in the house of the respondent, father of the appellant came at around 6.00 p.m and took the appellant alongwith him. He then stated that on 25.1.2015 he along with the respondent went to the house of the appellant to bring her back when she refused to come back with the respondent. In cross, P.W-3 states that on 25.1.2015 he went to the house of the respondent by chance and he was not called by the respondent. He then stated that when P.W-1 respondent got his wife admitted for delivery, he was informed by P.W-1 on telephone and he (P.W-3) also reached the hospital when he came to know about the birth of their child. 18. P.W-4 is a neighbour named as Ram Chandra Lal Srivastava whose house is located in front of the house of the respondent. He states that he saw the appellant leaving her matrimonial home alongwith her father about five years back while he was standing outside his house. After that he had never seen the appellant in her matrimonial house. 19. P.W-5 namely Ashok Kumar Khanna is an acquaintance of the respondent who stated that he knew the family since 2002. He states that the appellant had left her matrimonial home in January, 2015 at around 6.30 p.m and he had seen her leaving. He further states that he knew father of the appellant and had seen him going along with the appellant. The statement in paragraph-'6' in the examination-in-chief of this witness is verbatim the same as that of P.W-4 namely Ram Chandra Lal Srivastava. P.W-5 also admitted in the cross that the statement in para-6 of the examination in chief made by him was based on the information given to him by P.W-4 namely Ram Chandra Lal Srivastava and this fact has not been disclosed by him while making the said statement. 20. On appreciation of the oral evidence led by the respondent husband, at least, this can be elicited that P.W-3, P.W-4 and P.W-5 are the persons who had no knowledge as to whether the appellant had actually left her matrimonial home on 10.1.2015 with the intention to end her matrimonial relationship. The statement of P.W-3 in this regard is not credible, in as much as, he admitted that he was not related to the family on two crucial dates, i.e. on 10.1.2015 and 25.1.2015. His statement that the appellant had left her matrimonial home along with her father on 10.1.2015 and refused to come back on 25.1.2015 when he also went along with the respondent to bring her back, is sketchy. He seems to be either a chance witness or brought up by the respondent. At least the statements of P.W-3, P.W-4 and P.W-5 cannot be proof of desertion on the part of the appellant. 21. We are left with two witnesses, i.e the respondent himself and his brother Amit Kapoor. P.W.-2-Amit Kapoor was the resident of the same house. He states that the appellant had left along with her father on 10.01.2015 saying that she would come back within few days. In the examination in chief this witness states that his brother went to the house of the appellant on 25.1.2015 but she refused to come back. In cross, P.W-2 states that he brought the appellant back to his house many a times but did not remember the exact number, though lastly he brought her back in December, 2016. He further clarified that the statement made by him in para-5 in examination-in-chief that the appellant took his jewellery and cash alongwith her clothes while leaving her matrimonial home on 10.1.2015 was based on the information given by his brother/respondent. 22. P.W.1, the respondent husband reiterated his averments in the divorce petition by making statement in cross that the appellant had left her matrimonial home on 10.1.2015 and after fifteen days, i.e 25.01.2015 he himself went to bring her back. She, however, refused to accompany him. Their child was born in the hospital on 22.8.2015 and he got admitted his wife in the hospital. For the treatment of his daughter, he took her to Medanta Hospital Gurgaon and got her admitted therein on 13.06.2016. P.W-1 has, however, denied that his wife was residing with him on 22.08.2015 and 13.06.2016. He also admits that the appellant along with her daughter attended the marriage of his brother Amit solemnized on 15.12.2015. In the cross examination, P.W-1 has denied that the appellant had attended the marriage anniversary of his younger brother Amit on 15.12.2016. The photographs shown to P.W-1 had been admitted being of himself, his family and his daughter alongwith the 23. A perusal of this part of statement of P.W.-1 indicates that the photographs of his daughter uptil the age of 7-8 months were taken at different point of time and location and some in his house also. In one of these photographs, the child could be seen in the walker in a room of the house of the respondent. P.W.-1 admitted the photograph marked as paper no.30Ga/9 which is of his daughter when she was aged about 7-8 months at that point of time. On appreciation of the statement of P.W-1/husband, it is evident that the appellant and her daughter were well photographed in the house of the respondent, i.e the matrimonial home of the appellant. In various photographs, P.W.-1 himself could be seen alongwith his daughter in his own house. There is a categorical statement of the appellant O.P.W- 1 that she was residing in her matrimonial house both at the time of birth of her daughter and her treatment in Medanta Medicity Hospital Gurgaon and thereafter till July, 2016. The distance between two houses, i.e paternal home of the appellant and her matrimonial house (the respondent's home) is barely 400 metres. In these circumstance, the statement of P.W.-1 that the appellant had deserted him by leaving her matrimonial home on 10.01.2015, in his absence, permanently is unbelievable. There is admission of the respondent/P.W-1 that his wife though attended the wedding of his younger brother Amit on 15.12.2015 but was not present in his marriage anniversary on 15.12.2016. The statement of P.W-2 in the cross examination that he went to bring the appellant back many a times and lastly brought her back in December, 2016, also shows that the appellant came to her matrimonial home at least 24. From the evidence on record, thus, it cannot be accepted that the appellant had left her matrimonial home on 10.01.2015 with the intention to end her matrimonial relationship. The statement of appellant O.P.W-1 that she came back to her matrimonial home after four months of birth of her daughter when the respondent himself brought her back and remained there till July, 2016 is found to be more convincing. The plea of desertion on the part of the appellant without any reasonable cause and denial of matrimonial obligation on her part, therefore, is not found proved. 25. While recording finding on the issue no.2 of desertion, the Family Court has recorded that the appellant could not explain as to how and why she attended the wedding anniversary of her brother-in-law on 15.12.2016 when she was thrown out of her matrimonial home by her husband on 21.07.2016. The findings returned by the trial court on the issue of 26. This finding of the Family Court is against the evidence on record, the categorical statement of the respondent P.W.1 that her wife did not attend the wedding anniversary of his younger brother Amit on 15.12.2016. It seems that the Family court has misread the statement of 27. As regards the legal position, on the issue of desertion, the Apex Court in Savitri Pandey vs Prem Chandra Pandey reported in (2002) 2 SCC 73 considering its earlier decisions has held that the desertion in its essence means the intentional permanent forsaking and abandonment of one spouse by other without that other's consent, and without reasonable cause. To constitute the offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there: (i)the factum of separation. (ii)the intention to bring cohabitation permanently to end (animus deserendi). 28. Similarly two elements are essential so far as the deserted spouse is (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form necessary intention aforesaid. 29. It was held that for holding desertion as proved the inference may be drawn from certain facts viewing them as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of desertion. Desertion may also be constructive which can be inferred from attending circumstances. It has also always to be kept in mind that the question of desertion is a matter of inference to be drawn from the facts and circumstances of each case. 30. In the instant case, from the act and conduct of the parties, it cannot be inferred that the appellant had deserted her husband (respondent) with the intention to bring cohabitation permanently to an end by leaving her matrimonial home on 10.01.2015 in the absence of her husband. The appellant was pregnant at that time and she may have gone to her parents house which was barely 400 metres, for sometime. Further, the act of the appellant in visiting her parents house frequently without taking consent of her husband and other family members cannot constitute the offence of desertion on her part. P.W-2, brother-in-law of the appellant had stated that he brought her back many a times from her parents house and lastly she came in December, 2016. The plea of desertion taken by the respondent can not be accepted from the facts and circumstances of the case, in as much as, such an inference cannot be drawn from the attending circumstances which speak otherwise. It may be inferred that there were differences between husband and wife but the act of desertion, without reasonable cause, with the intention to bring cohabitation permanently to end is not proved, at least not on 10.01.2015. The cause of action as alleged to have been accured firstly on 10.01.2015 and lastly on 15.01.2017, the period of two years of desertion, is not proved from the material on record. 31. Further, the appellant has come out with the categorical statement that she alongwith her daughter was thrown out of her matrimonial home by the respondent in July, 2016. The respondent admittedly did not bring any legal action with a view to assert his right to restitute his conjugal rights. When application under Section 24 of the Hindu Marriage Act was filed, the respondent contested the same on various pleas and did not come forward to pay interim maintenance even for his daughter. In this appeal, the respondent did not appear in spite of filing of the caveat application and service of the notice upon him, on account of which the status quo order was passed on 05.10.2020. The respondent or his counsel never participated in this proceeding which shows that the respondent husband himself is not willing to take care of his wife and even his minor daughter. It seems that he has deserted her wife on his own and is running away from his responsibility of a father towards his minor daughter. 32. For the above discussion, the findings returned by the Family Court on issue no.2 that the appellant had deserted her husband without any reasonable cause from 10.01.2015 and further on 15.01.2017 deserve to be set aside. 33. On the issue no.1 of cruelty, the Family Court has returned the 34. The conclusion drawn by the trial court is that the appellant used to go her parent's house without any information to the respondent or his family members and she did not do daily chores of the house being a daughter-in-law. We may record that not a single instance of such an act of the appellant has been brought on record either by the respondent or his brother who entered in the witness box as P.W-2. The general allegations and casual statement of the respondent in the divorce petition has been treated as a gospel truth by the Family Court without any cogent evidence on record. The act of the appellant in visiting her parent's house, in any case, even without the permission of the respondent does not amount to cruelty. The facts that the appellant was admitted in the hospital by the respondent at the time of her delivery or he had borne expenses for treatment of their daughter do not go against the appellant rather these facts support the case of the appellant that she did not leave her husband that too permanently with the intention of bringing the cohabitation to an end and has never done any act to deprive the respondent from the pleasure of fatherhood. The ground of cruelty on the said assertion is not made out. 35. Last ground to hold cruelty on the part of the appellant is that she had lodged a criminal case against her husband and in-laws on the false plea of demand of dowry and her statement that she was thrown out of her matrimonial house by the respondent by beating her is false. The Family Court while recording the said finding has completely ignored the fact that the first information report was lodged by the appellant on 27.01.2018 much after the divorce petition was instituted on 6.3.2017. The act of the appellant in lodging the first information report on the plea of demand of dowry may not be approved by the Family Court but the said issue was not subject matter of scrutiny in the divorce proceeding. Surprisingly, the family court has lost sight of the fact that the plea of cruelty was taken as a ground of divorce in the plaint filed on 06.03.2017. The plaintiff, i.e the respondent herein was required to prove the existence of such acts or conduct of the appellant which amounted to cruelty prior to the date of institution of the divorce suit. Any subsequent conduct of the appellant in lodging the first information report after she was thrown away from her matrimonial home by the respondent cannot be treated as an act of cruelty on the part of the appellant. 36. The respondent husband could not prove cruelty from any act or conduct or behaviour of the appellant by leading any evidence much less cogent evidence. The findings on issue no.1 on the plea of cruelty returned by the family court are, thus, liable to be set aside. 37. For the foregoing discussion and reasons, the divorce decree granted by the trial court cannot be sustained in the eye of law. The judgment and order dated 19.03.2020 passed by the Additional Principal Judge, Family Court Bareilly is hereby set aside. 38. The divorce petition no.284 of 2017 (Sumit Kapoor vs Smti Mohit Preet Kapoor) under Section 13(1) of the Hindu Marriage Act is dismissed as such. 39. However, before parting with this judgment, we would like to address one more issue which is of maintenance to wife and daughter deserted by the respondent. 40. It is evident from the record that the appellant got interim maintenance under Section 24, pursuant to the order dated 10.07.2018 whereby Rs.5,000/- was fixed for the appellant and Rs.2,000/- for her daughter on monthly basis by the Family Court. After dismissal of the divorce suit on 19.03.2020, the interim maintenance has been stopped. 41. While admitting this appeal and passing the interim order of status quo, this Court did not clarify that interim maintenance would payable to the appellant and her daughter. The result is that during the pendency of the appeal, the appellant and her daughter have been left to survive on their own. They have no financial support as the appellant has no income. The question is as to whether after dismissal of the divorce suit, the appellant is entitled for maintenance while living separately in case her husband refuses to maintain her. This issue can be answered with the help of the provisions contained in Section 18 of the Hindu Adoption and Maintenance Act, 1956 which provides that a Hindu wife shall be entitled to live separately from her husband without forfeiting her claim for maintenance, in case her husband is guilty of desertion or abandoning her without reasonable cause or is guilty of willfully neglecting her. The right to claim interim maintenance by instituting a suit under Section 18 of the Hindu Adoption And Maintenance Act, 1956 is a substantive right and can be availed by the appellant by bringing her own action. 42. However, as to the dependant daughter, who is aged about six years, the obligation is upon the respondent by virtue of Section 20 of the Hindu Adoption and Maintenance Act, 1956. The appellant needs money to provide education, clothing, food and participation in extra curricular activities for the upbringing of her daughter. The meagre amount of maintenance of Rs.2,000/- per month for the minor daughter as fixed by the Family Court has also been stopped since the year, 2020 after the decree of divorce was passed in favour of the respondent. 43. Considering the fact that the respondent is a Chartered Accountant and is engaged in this profession since the year 2012, we find it fit and proper that an amount of Rs.30,000/- per month shall be paid by the respondent towards maintenance of his daughter. The said amount shall be payable w.e.f February, 2022 and shall be transmitted in the Saving bank account of the appellant by 10th of each succeeding month. For February, 2022, the payment shall be made by 10th March, 2022. 44. Further, as there was an order of status quo in this appeal, for the period from the date of admission of the present appeal till the date of its disposal, the appellant would be entitled to interim maintenance as fixed by the Family Court vide order dated 18.09.2018. The arrears of monthly maintenance to the tune of Rs.5,000/- for the appellant and Rs.2,000/- for the daughter, from the date of admission of the appeal i.e 5.10.2020 till the date of the decision, is to be paid within a period of four months from the date of receipt of the copy of this order. 45. Any default on the part of the respondent in making the above payment timely, would entitle the appellant to institute the execution proceeding before the competent Court. 46. With the above observations and directions, the appeal is allowed. Digitally signed by HARSHITA
The Allahabad High Court has ruled that if a wife often visits her parents' house without asking her husband or his family for permission, it doesn't mean she has left the marriage for good or treated him cruelly. Two judges, Justice Sunita Agarwal and Justice Krishan Pahal, came to this conclusion. They agreed with the wife's appeal, which challenged a previous ruling. A judge in a lower family court in Bareilly had granted a divorce to the husband based on a specific law called Section 13 of the Hindu Marriage Act, and the wife wanted that decision overturned. The case in brief The wife, Mohit Preet Kapoor, and the husband, Sumit Kapoor, got married in December 2013. In July 2017, the husband asked for a divorce. He claimed that his wife had left their home in January 2015 for no clear reason, while he was away, and with her father and brother. The husband said he filed for divorce because his wife left their home with her father and brother in January 2015. He also said another reason was that she refused to go back home with him in January 2017. The husband also claimed his wife wouldn't do housework and treated his family badly. He said she often went to her parents' house or other relatives without telling him or his family. Additionally, he claimed she filed family court cases against him and his family. While this was happening, in September 2017, the wife asked the court for financial support for herself and her daughter, using Section 24 of the Hindu Marriage Act. The court approved her request, ordering her husband to pay her Rs. 5,000 per month and Rs. 2,000 per month for their daughter. The wife, however, clearly stated that her husband had forced her and their daughter out of their home in July 2016. She also pointed out that her husband had not taken any legal steps to make her return and live with him as husband and wife again. Court's observations First, the Court found that based on what the husband and wife did, it wasn't clear that the wife had left her husband for good. It didn't seem she intended to end their life together permanently when she left their home on January 10, 2015, while her husband was away. The Court explained that the wife was pregnant at the time and might have gone to her parents' house, which was only about 400 meters away, for a while. The Court added that the wife often visiting her parents' home without getting permission from her husband or his family cannot be seen as her abandoning the marriage. As a result, the Court decided that the husband had not proven his claims that his wife left him for good. The evidence didn't show she deserted him for the required two years, starting in January 2015 and ending in January 2017. The Court also noted that when the wife asked for financial support under Section 24 of the Hindu Marriage Act, the husband fought against it with many arguments. He even refused to pay temporary support for his daughter. The Court observed further that the husband or his lawyer never took part in these hearings. This showed that the husband himself did not want to support his wife or even his young daughter. The Court felt it seemed like the husband had left his wife on his own and was avoiding his duties as a father to his young daughter. Because of these points, the Court overturned the lower court's decision. The lower court had found that the wife had left her husband for good without a good reason, first on January 10, 2015, and then again on January 15, 2017. About the claim of cruelty, the Court said that this claim was not proven. The Court decided that the husband could not show that his wife had been cruel through any of her actions or behavior. He failed to provide any strong evidence to support this claim. The Court stated that the wife visiting her parents' house, in any situation, even without her husband's permission, does not count as cruelty. The Court also noted that the husband taking her to the hospital for childbirth and paying for their daughter's medical treatment did not hurt the wife's case. Instead, these facts actually supported her argument. They showed that she did not leave her husband permanently with the goal of ending their marriage or stopping him from enjoying being a father. Therefore, the Court cancelled the divorce order that the first court had given. The Court ordered the husband to pay Rs. 30,000 per month for his daughter's support. The wife also received the financial support that the lower court had decided on in September 2018.
1. This is wife's appeal directed against the judgment and order dated 19.03.2020 passed by the Additional Principal Judge, Family Court, Bareilly under Section 13 of the Hindu Marriage Act. The marriage of the appellant with the respondent was held on 15.12.2013. 2. The divorce petition had been filed by the respondent husband on 6.3.2017 on the ground that the appellant, his wife, had left her matrimonial home on 10.1.2015 without any rhyme or reason, in his absence, alongwith her family members. At that point of time, the appellant wife was pregnant for two months. It was alleged in the divorce petition that while leaving her matrimonial home, the appellant took all her jewellery as also Rs.36,000/- in cash kept by the respondent in his safe. On 25.1.2015, the respondent went to bring the appellant back to his home when she refused to maintain any kind of relationship with him. 3. It was further contended that on 22.8.2015, the appellant had given birth to a girl child. She was admitted in the hospital by the respondent who had borne all expenses of birth of his daughter. The appellant wife went to her paternal home after birth of the child. After about eight to ten days, the respondent went to bring the appellant back to his home when she denied to meet him and did not allow him to even see his child. On 15.1.2017 the respondent again went alongwith his relative to bring the appellant to his home when she had denied to accompany him. It is, thus, stated in the divorce petition that the appellant was residing separately since 10.1.2015 and she has refused to keep relationship with the 4. The plea in the divorce petition, thus, is that the appellant wife had deserted her husband/respondent without any rhyme or reason and refused to cohabit with him. The cause of action for filing the divorce petition stated to have arisen on 10.1.2015 when appellant wife had left her matrimonial home along with her father and brother and lastly on 15.1.2017 when she refused to accompany the respondent to her matrimonial home. Another ground for seeking divorce is that the appellant had refused to do the household work and misbehaved with the family members of the respondent. She used to go to her paternal home or to her relatives without any information to the respondent or his family 5. The trial court had framed four issues; Issue nos. 1 and 2 framed by the trial court read as under: 6. In support of the averments in the divorce petition, the respondent husband had produced five witnesses including himself as P.W-1. P.W-2 Amit Kapoor is brother of the respondent; P.W-3 is father-in-law of P.W.-2 Amit Kapoor and P.W-4 is neighbour of the respondent; P.W-5 is an acquaintance. In rebuttal, appellant-wife entered in the witness box as O.P.W-1 and her father Atar Singh as O.P.W-2. 7. An application under Section 24 of the Hindu Marriage Act was filed by the appellant on 6.9.2017 which was contested by the respondent by filing his objection on 26.2.2018. By the order dated 10.7.2018, while allowing the application under Section 24 of the Hindu Marriage Act, an amount of Rs.5,000/- per month was awarded to the appellant and Rs.2000/- for her daughter towards monthly maintenance. In addition to the same, Rs.20,000/- in lumpsum was awarded towards the cost of the 8. A written statement in rebuttal was filed by the appellant wife on 06.10.2018 wherein she had categorically denied the assertion that she had left her matrimonial home on 10.1.2015 rather it was stated therein that the appellant lived with the respondent, her husband, in his house uptil July, 2016. A child was born out of the wedlock on 22.8.2015 in Rashmi Goyal Hospital situated at Rampur Garden Bareilly. The appellant was admitted in the hospital by the respondent on 22.8.2015 who had signed the consent letter for the surgery. It is emphatically denied that the appellant had refused to have sexual relationship with the respondent. It was further stated that after the birth of the girl child the respondent did not care to take the appellant to his home from the hospital and she had to go to her father's home. After about a period of four months, the respondent went to the house of the appellant's parents and when the matter was amicably settled and the appellant came to live with the respondent in his house. On 13.6.2016, their daughter had to undergo an operation for which she was admitted in Medanta Medicity Hospital Gurgaon when both the appellant and respondent were with their child. After surgery, the appellant-wife came back to the house of the respondent and stayed there until 21 July, 2016 when she was turned out of her matrimonial home along with her infant daughter. It is alleged in the written statement that the original documents such as Aadhar Card, Pan Card, Driving licence, Voter Id, Marriage certificate and other documents pertaining to the educational qualification of the appellant-wife were in the possession of the respondent and he was misusing them by forging her 9. An F.I.R under Section 498, 506 I.P.C and ¾ of D.P Act was lodged in P.S Prem Nagar Bareilly on 27.01.2018 by the appellant-wife against the respondent in respect of which investigation was going on whereas interim protection had been granted by this Court in a writ petition filed by the respondent. It is denied by the appellant that she took her jewellery while leaving the home of the respondent. It is also denied that the respondent went to the house of the parents of the appellant on 25.1.2015. 10. Some photographs have been filed by the appellant along with the written statement to prove that she along with her daughter were living alongwith the respondent. It was lastly stated that on 15.12.2015 marriage of the brother of the respondent was solemnised wherein the appellant had participated. Some of the photographs in which the appellant and respondent could be seen with the wife of the elder brother of the respondent were of the month, February, 2016. It is lastly stated that the respondent had filed Income Tax Returns of the appellant by forging her signature for the assesment year, 2013-14 till 2016-17. 11. The contention of the appellant, thus, is that she was turned out of her matrimonial home by the respondent on 21.7.2016 without any reasonable cause and the respondent did not care for his wife and the infant child. 12. Noticing the pleadings of the parties, the evidence on record, in his statement as P.W-1, the respondent has admitted factum of marriage though denied the demand of dowry and stated that his wife/appellant used to threatened him that she would implicate him in a false case of dowry. The averment of desertion on the part of the wife as on 10.1.2015, as stated in the divorce petition, has been reiterated in the examination-in- chief. It was also stated that the appellant was admitted in the hospital by the respondent during birth of their child and the respondent borne all the expenditures therein. It was also admitted that during surgery of their daughter on 13.6.2016 in Medanta Medicity Hospital, the appellant was present. However, it is denied that at that point of time the appellant, his wife, was living with him. The photographs marked as paper nos.30Ga/4, 30Ga/5, 30Ga/6, 30Ga/7, 30Ga/8, and 30Ga/9 were admitted by the respondent. It was also admitted that the marriage of his brother on 15.12.2015 was attended by the appellant and the said date is also the wedding anniversary of the appellant and the respondent. Paper no.20/14 is the photograph of 15.12.2015 which was the date of marriage of the brother of the respondent, his own wedding anniversary. It is admitted that in the said photograph, wife and daughter of the respondent could be seen with him. Paper no.30Ga/10 is the photograph wherein the appellant, respondent and brother and sister-in-law of the respondent could be seen together. This document is also admitted. Other photographs marked as paper no.30Ga/11, 30Ga/13, 30Ga/15, 30Ga/16, 30 Ga/17 and 30Ga/18 are also admitted to the appellant which are photographs of his daughter with his parents. Paper no.30Ga/18 is the photograph which is admittedly of the respondent and his wife, but he has refused to recognize the place where it was taken. 13. As noted above, it is pertinent to state here that in one of the photographs paper no.30Ga/6, the respondent could be seen along with his wife (appellant) and daughter. The respondent has admitted that the said photograph was taken after birth of his daughter when she was about four to five months. There are photographs of mother and daughter of the respondent with him which are admitted though it is not specified by him as to when and where those photographs were taken and what was the age of his child at that point of time. One of the photographs marked as 30Ga/9 is of the drawing room of the house of the respondent where his daughter, who was about 7-8 months old, could be seen on a walker. In the cross examination, the respondent had categorically stated that his brother Amit got married on 15.12.2015. In the marriage anniversary of his brother which was on 15.12.2016, the appellant was not present. We are surprised to note at this moment that the family court had recorded a finding that the appellant had attended the wedding anniversary of his brother-in-law on 15.12.2016 and the photograph paper no.30Ga/9 was of the said function which was held in the house of the respondent. It is difficult to understand as to what was the basis of the said finding. 14. Contrary to this, the appellant in her statement before the family court has categorically asserted that her parent's house and her matrimonial house are located barely at a distance of 400 metres. Her husband took her to the hospital when their child was born on 22.8.2015. Paper no.30Ga/9 has been proved to be the photograph of her child which was taken in the drawing room of the house of the respondent. Paper no.30Ga/10 is the photograph of the appellant along with the respondent and her sister-in-law and brother-in- law Amit Kapoor. This photograph was stated to have been taken in the month of February, 2016 when they went to attend a marriage in the family. Paper no.30Ga/11 is also the photograph of the appellant and her sister-in-law (wife of Amit Kapoor- brother of respondent). Paper no.30/12 is the photograph of the respondent, his daughter alongwith his mother and was stated to have been clicked in the drawing room of the house of the respondent. Paper no.30Ga/14 is the photograph of their marriage anniversary on 15.12.2015 (which incidently was the date of marriage of brother of the respondent). Paper no.30Ga/15 is the photograph of Amit Kapoor (brother of the respondent), daughter of the appellant and mother of the respondent. Paper no.30Ga/17 is the photograph which as per the statement of the appellant is of their marriage anniversary which is also admitted to the respondent as he stated that the said photograph was taken in the marriage of his brother Amit wherein his wife could also be seen. Paper no.30Ga/18 is the photograph wherein the appellant and respondent could be seen together and it was stated by the appellant that the said photograph was clicked in a Mall in Delhi on 14.2.2016 whereas the respondent had refused to recognise the place where it was taken. 15. The appellant in her statement has categorically stated that she was kicked out of her matrimonial home on 21.7.2016 and the first information report was lodged against the respondent thereafter. She was confronted on the allegations of demand of dowry in the cross examination. The appellant has asserted in cross that the marriage of her brother-in-law was held after two years of their marriage on 15.12.2015, and their marriage anniversary also fell on the said date. She had reiterated that she remained in the house of the respondent till July, 2016 and at that point of time she was not pregnant. She had categorically denied of leaving her matrimonial home in January, 2015. 16. In support of the plea of desertion, the respondent has produced other witnesses also. P.W-2 is the brother of the respondent namely Amit Kapoor. He has stated that the appellant had left their home on 10.1.2015 alongwith her father saying that she would come back after few days. He states that the father of the appellant remained in their house for around 30-45 minutes. In cross, he states that whatever has been stated in paragraph-5 in his examination-in-chief with regard to the appellant taking her jewellery and money while leaving on 10.1.2015, was based on the information given to him by his brother, the respondent herein. 17. P.W-3 is the father-in-law of P.W-2-Amit Kapoor. He states that he was an acquaintance of the family of the respondent since, 2012 and in the year 2015, the talk of marriage of his daughter with Amit Kapoor, brother of the respondent, was going on. On 10.1.2015, he went to the house of the respondent to invite them for his wedding anniversary. While he was in the house of the respondent, father of the appellant came at around 6.00 p.m and took the appellant alongwith him. He then stated that on 25.1.2015 he along with the respondent went to the house of the appellant to bring her back when she refused to come back with the respondent. In cross, P.W-3 states that on 25.1.2015 he went to the house of the respondent by chance and he was not called by the respondent. He then stated that when P.W-1 respondent got his wife admitted for delivery, he was informed by P.W-1 on telephone and he (P.W-3) also reached the hospital when he came to know about the birth of their child. 18. P.W-4 is a neighbour named as Ram Chandra Lal Srivastava whose house is located in front of the house of the respondent. He states that he saw the appellant leaving her matrimonial home alongwith her father about five years back while he was standing outside his house. After that he had never seen the appellant in her matrimonial house. 19. P.W-5 namely Ashok Kumar Khanna is an acquaintance of the respondent who stated that he knew the family since 2002. He states that the appellant had left her matrimonial home in January, 2015 at around 6.30 p.m and he had seen her leaving. He further states that he knew father of the appellant and had seen him going along with the appellant. The statement in paragraph-'6' in the examination-in-chief of this witness is verbatim the same as that of P.W-4 namely Ram Chandra Lal Srivastava. P.W-5 also admitted in the cross that the statement in para-6 of the examination in chief made by him was based on the information given to him by P.W-4 namely Ram Chandra Lal Srivastava and this fact has not been disclosed by him while making the said statement. 20. On appreciation of the oral evidence led by the respondent husband, at least, this can be elicited that P.W-3, P.W-4 and P.W-5 are the persons who had no knowledge as to whether the appellant had actually left her matrimonial home on 10.1.2015 with the intention to end her matrimonial relationship. The statement of P.W-3 in this regard is not credible, in as much as, he admitted that he was not related to the family on two crucial dates, i.e. on 10.1.2015 and 25.1.2015. His statement that the appellant had left her matrimonial home along with her father on 10.1.2015 and refused to come back on 25.1.2015 when he also went along with the respondent to bring her back, is sketchy. He seems to be either a chance witness or brought up by the respondent. At least the statements of P.W-3, P.W-4 and P.W-5 cannot be proof of desertion on the part of the appellant. 21. We are left with two witnesses, i.e the respondent himself and his brother Amit Kapoor. P.W.-2-Amit Kapoor was the resident of the same house. He states that the appellant had left along with her father on 10.01.2015 saying that she would come back within few days. In the examination in chief this witness states that his brother went to the house of the appellant on 25.1.2015 but she refused to come back. In cross, P.W-2 states that he brought the appellant back to his house many a times but did not remember the exact number, though lastly he brought her back in December, 2016. He further clarified that the statement made by him in para-5 in examination-in-chief that the appellant took his jewellery and cash alongwith her clothes while leaving her matrimonial home on 10.1.2015 was based on the information given by his brother/respondent. 22. P.W.1, the respondent husband reiterated his averments in the divorce petition by making statement in cross that the appellant had left her matrimonial home on 10.1.2015 and after fifteen days, i.e 25.01.2015 he himself went to bring her back. She, however, refused to accompany him. Their child was born in the hospital on 22.8.2015 and he got admitted his wife in the hospital. For the treatment of his daughter, he took her to Medanta Hospital Gurgaon and got her admitted therein on 13.06.2016. P.W-1 has, however, denied that his wife was residing with him on 22.08.2015 and 13.06.2016. He also admits that the appellant along with her daughter attended the marriage of his brother Amit solemnized on 15.12.2015. In the cross examination, P.W-1 has denied that the appellant had attended the marriage anniversary of his younger brother Amit on 15.12.2016. The photographs shown to P.W-1 had been admitted being of himself, his family and his daughter alongwith the 23. A perusal of this part of statement of P.W.-1 indicates that the photographs of his daughter uptil the age of 7-8 months were taken at different point of time and location and some in his house also. In one of these photographs, the child could be seen in the walker in a room of the house of the respondent. P.W.-1 admitted the photograph marked as paper no.30Ga/9 which is of his daughter when she was aged about 7-8 months at that point of time. On appreciation of the statement of P.W-1/husband, it is evident that the appellant and her daughter were well photographed in the house of the respondent, i.e the matrimonial home of the appellant. In various photographs, P.W.-1 himself could be seen alongwith his daughter in his own house. There is a categorical statement of the appellant O.P.W- 1 that she was residing in her matrimonial house both at the time of birth of her daughter and her treatment in Medanta Medicity Hospital Gurgaon and thereafter till July, 2016. The distance between two houses, i.e paternal home of the appellant and her matrimonial house (the respondent's home) is barely 400 metres. In these circumstance, the statement of P.W.-1 that the appellant had deserted him by leaving her matrimonial home on 10.01.2015, in his absence, permanently is unbelievable. There is admission of the respondent/P.W-1 that his wife though attended the wedding of his younger brother Amit on 15.12.2015 but was not present in his marriage anniversary on 15.12.2016. The statement of P.W-2 in the cross examination that he went to bring the appellant back many a times and lastly brought her back in December, 2016, also shows that the appellant came to her matrimonial home at least 24. From the evidence on record, thus, it cannot be accepted that the appellant had left her matrimonial home on 10.01.2015 with the intention to end her matrimonial relationship. The statement of appellant O.P.W-1 that she came back to her matrimonial home after four months of birth of her daughter when the respondent himself brought her back and remained there till July, 2016 is found to be more convincing. The plea of desertion on the part of the appellant without any reasonable cause and denial of matrimonial obligation on her part, therefore, is not found proved. 25. While recording finding on the issue no.2 of desertion, the Family Court has recorded that the appellant could not explain as to how and why she attended the wedding anniversary of her brother-in-law on 15.12.2016 when she was thrown out of her matrimonial home by her husband on 21.07.2016. The findings returned by the trial court on the issue of 26. This finding of the Family Court is against the evidence on record, the categorical statement of the respondent P.W.1 that her wife did not attend the wedding anniversary of his younger brother Amit on 15.12.2016. It seems that the Family court has misread the statement of 27. As regards the legal position, on the issue of desertion, the Apex Court in Savitri Pandey vs Prem Chandra Pandey reported in (2002) 2 SCC 73 considering its earlier decisions has held that the desertion in its essence means the intentional permanent forsaking and abandonment of one spouse by other without that other's consent, and without reasonable cause. To constitute the offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there: (i)the factum of separation. (ii)the intention to bring cohabitation permanently to end (animus deserendi). 28. Similarly two elements are essential so far as the deserted spouse is (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form necessary intention aforesaid. 29. It was held that for holding desertion as proved the inference may be drawn from certain facts viewing them as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of desertion. Desertion may also be constructive which can be inferred from attending circumstances. It has also always to be kept in mind that the question of desertion is a matter of inference to be drawn from the facts and circumstances of each case. 30. In the instant case, from the act and conduct of the parties, it cannot be inferred that the appellant had deserted her husband (respondent) with the intention to bring cohabitation permanently to an end by leaving her matrimonial home on 10.01.2015 in the absence of her husband. The appellant was pregnant at that time and she may have gone to her parents house which was barely 400 metres, for sometime. Further, the act of the appellant in visiting her parents house frequently without taking consent of her husband and other family members cannot constitute the offence of desertion on her part. P.W-2, brother-in-law of the appellant had stated that he brought her back many a times from her parents house and lastly she came in December, 2016. The plea of desertion taken by the respondent can not be accepted from the facts and circumstances of the case, in as much as, such an inference cannot be drawn from the attending circumstances which speak otherwise. It may be inferred that there were differences between husband and wife but the act of desertion, without reasonable cause, with the intention to bring cohabitation permanently to end is not proved, at least not on 10.01.2015. The cause of action as alleged to have been accured firstly on 10.01.2015 and lastly on 15.01.2017, the period of two years of desertion, is not proved from the material on record. 31. Further, the appellant has come out with the categorical statement that she alongwith her daughter was thrown out of her matrimonial home by the respondent in July, 2016. The respondent admittedly did not bring any legal action with a view to assert his right to restitute his conjugal rights. When application under Section 24 of the Hindu Marriage Act was filed, the respondent contested the same on various pleas and did not come forward to pay interim maintenance even for his daughter. In this appeal, the respondent did not appear in spite of filing of the caveat application and service of the notice upon him, on account of which the status quo order was passed on 05.10.2020. The respondent or his counsel never participated in this proceeding which shows that the respondent husband himself is not willing to take care of his wife and even his minor daughter. It seems that he has deserted her wife on his own and is running away from his responsibility of a father towards his minor daughter. 32. For the above discussion, the findings returned by the Family Court on issue no.2 that the appellant had deserted her husband without any reasonable cause from 10.01.2015 and further on 15.01.2017 deserve to be set aside. 33. On the issue no.1 of cruelty, the Family Court has returned the 34. The conclusion drawn by the trial court is that the appellant used to go her parent's house without any information to the respondent or his family members and she did not do daily chores of the house being a daughter-in-law. We may record that not a single instance of such an act of the appellant has been brought on record either by the respondent or his brother who entered in the witness box as P.W-2. The general allegations and casual statement of the respondent in the divorce petition has been treated as a gospel truth by the Family Court without any cogent evidence on record. The act of the appellant in visiting her parent's house, in any case, even without the permission of the respondent does not amount to cruelty. The facts that the appellant was admitted in the hospital by the respondent at the time of her delivery or he had borne expenses for treatment of their daughter do not go against the appellant rather these facts support the case of the appellant that she did not leave her husband that too permanently with the intention of bringing the cohabitation to an end and has never done any act to deprive the respondent from the pleasure of fatherhood. The ground of cruelty on the said assertion is not made out. 35. Last ground to hold cruelty on the part of the appellant is that she had lodged a criminal case against her husband and in-laws on the false plea of demand of dowry and her statement that she was thrown out of her matrimonial house by the respondent by beating her is false. The Family Court while recording the said finding has completely ignored the fact that the first information report was lodged by the appellant on 27.01.2018 much after the divorce petition was instituted on 6.3.2017. The act of the appellant in lodging the first information report on the plea of demand of dowry may not be approved by the Family Court but the said issue was not subject matter of scrutiny in the divorce proceeding. Surprisingly, the family court has lost sight of the fact that the plea of cruelty was taken as a ground of divorce in the plaint filed on 06.03.2017. The plaintiff, i.e the respondent herein was required to prove the existence of such acts or conduct of the appellant which amounted to cruelty prior to the date of institution of the divorce suit. Any subsequent conduct of the appellant in lodging the first information report after she was thrown away from her matrimonial home by the respondent cannot be treated as an act of cruelty on the part of the appellant. 36. The respondent husband could not prove cruelty from any act or conduct or behaviour of the appellant by leading any evidence much less cogent evidence. The findings on issue no.1 on the plea of cruelty returned by the family court are, thus, liable to be set aside. 37. For the foregoing discussion and reasons, the divorce decree granted by the trial court cannot be sustained in the eye of law. The judgment and order dated 19.03.2020 passed by the Additional Principal Judge, Family Court Bareilly is hereby set aside. 38. The divorce petition no.284 of 2017 (Sumit Kapoor vs Smti Mohit Preet Kapoor) under Section 13(1) of the Hindu Marriage Act is dismissed as such. 39. However, before parting with this judgment, we would like to address one more issue which is of maintenance to wife and daughter deserted by the respondent. 40. It is evident from the record that the appellant got interim maintenance under Section 24, pursuant to the order dated 10.07.2018 whereby Rs.5,000/- was fixed for the appellant and Rs.2,000/- for her daughter on monthly basis by the Family Court. After dismissal of the divorce suit on 19.03.2020, the interim maintenance has been stopped. 41. While admitting this appeal and passing the interim order of status quo, this Court did not clarify that interim maintenance would payable to the appellant and her daughter. The result is that during the pendency of the appeal, the appellant and her daughter have been left to survive on their own. They have no financial support as the appellant has no income. The question is as to whether after dismissal of the divorce suit, the appellant is entitled for maintenance while living separately in case her husband refuses to maintain her. This issue can be answered with the help of the provisions contained in Section 18 of the Hindu Adoption and Maintenance Act, 1956 which provides that a Hindu wife shall be entitled to live separately from her husband without forfeiting her claim for maintenance, in case her husband is guilty of desertion or abandoning her without reasonable cause or is guilty of willfully neglecting her. The right to claim interim maintenance by instituting a suit under Section 18 of the Hindu Adoption And Maintenance Act, 1956 is a substantive right and can be availed by the appellant by bringing her own action. 42. However, as to the dependant daughter, who is aged about six years, the obligation is upon the respondent by virtue of Section 20 of the Hindu Adoption and Maintenance Act, 1956. The appellant needs money to provide education, clothing, food and participation in extra curricular activities for the upbringing of her daughter. The meagre amount of maintenance of Rs.2,000/- per month for the minor daughter as fixed by the Family Court has also been stopped since the year, 2020 after the decree of divorce was passed in favour of the respondent. 43. Considering the fact that the respondent is a Chartered Accountant and is engaged in this profession since the year 2012, we find it fit and proper that an amount of Rs.30,000/- per month shall be paid by the respondent towards maintenance of his daughter. The said amount shall be payable w.e.f February, 2022 and shall be transmitted in the Saving bank account of the appellant by 10th of each succeeding month. For February, 2022, the payment shall be made by 10th March, 2022. 44. Further, as there was an order of status quo in this appeal, for the period from the date of admission of the present appeal till the date of its disposal, the appellant would be entitled to interim maintenance as fixed by the Family Court vide order dated 18.09.2018. The arrears of monthly maintenance to the tune of Rs.5,000/- for the appellant and Rs.2,000/- for the daughter, from the date of admission of the appeal i.e 5.10.2020 till the date of the decision, is to be paid within a period of four months from the date of receipt of the copy of this order. 45. Any default on the part of the respondent in making the above payment timely, would entitle the appellant to institute the execution proceeding before the competent Court. 46. With the above observations and directions, the appeal is allowed. Digitally signed by HARSHITA
The Allahabad High Court has ruled that if a wife often visits her parents' house without asking her husband or his family for permission, it doesn't mean she has left the marriage for good or treated him cruelly. Two judges, Justice Sunita Agarwal and Justice Krishan Pahal, came to this conclusion. They agreed with the wife's appeal, which challenged a previous ruling. A judge in a lower family court in Bareilly had granted a divorce to the husband based on a specific law called Section 13 of the Hindu Marriage Act, and the wife wanted that decision overturned. The case in brief The wife, Mohit Preet Kapoor, and the husband, Sumit Kapoor, got married in December 2013. In July 2017, the husband asked for a divorce. He claimed that his wife had left their home in January 2015 for no clear reason, while he was away, and with her father and brother. The husband said he filed for divorce because his wife left their home with her father and brother in January 2015. He also said another reason was that she refused to go back home with him in January 2017. The husband also claimed his wife wouldn't do housework and treated his family badly. He said she often went to her parents' house or other relatives without telling him or his family. Additionally, he claimed she filed family court cases against him and his family. While this was happening, in September 2017, the wife asked the court for financial support for herself and her daughter, using Section 24 of the Hindu Marriage Act. The court approved her request, ordering her husband to pay her Rs. 5,000 per month and Rs. 2,000 per month for their daughter. The wife, however, clearly stated that her husband had forced her and their daughter out of their home in July 2016. She also pointed out that her husband had not taken any legal steps to make her return and live with him as husband and wife again. Court's observations First, the Court found that based on what the husband and wife did, it wasn't clear that the wife had left her husband for good. It didn't seem she intended to end their life together permanently when she left their home on January 10, 2015, while her husband was away. The Court explained that the wife was pregnant at the time and might have gone to her parents' house, which was only about 400 meters away, for a while. The Court added that the wife often visiting her parents' home without getting permission from her husband or his family cannot be seen as her abandoning the marriage. As a result, the Court decided that the husband had not proven his claims that his wife left him for good. The evidence didn't show she deserted him for the required two years, starting in January 2015 and ending in January 2017. The Court also noted that when the wife asked for financial support under Section 24 of the Hindu Marriage Act, the husband fought against it with many arguments. He even refused to pay temporary support for his daughter. The Court observed further that the husband or his lawyer never took part in these hearings. This showed that the husband himself did not want to support his wife or even his young daughter. The Court felt it seemed like the husband had left his wife on his own and was avoiding his duties as a father to his young daughter. Because of these points, the Court overturned the lower court's decision. The lower court had found that the wife had left her husband for good without a good reason, first on January 10, 2015, and then again on January 15, 2017. About the claim of cruelty, the Court said that this claim was not proven. The Court decided that the husband could not show that his wife had been cruel through any of her actions or behavior. He failed to provide any strong evidence to support this claim. The Court stated that the wife visiting her parents' house, in any situation, even without her husband's permission, does not count as cruelty. The Court also noted that the husband taking her to the hospital for childbirth and paying for their daughter's medical treatment did not hurt the wife's case. Instead, these facts actually supported her argument. They showed that she did not leave her husband permanently with the goal of ending their marriage or stopping him from enjoying being a father. Therefore, the Court cancelled the divorce order that the first court had given. The Court ordered the husband to pay Rs. 30,000 per month for his daughter's support. The wife also received the financial support that the lower court had decided on in September 2018.
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1. The Respondent was convicted by the Supreme Court of Mauritius under Section 30(1)(f)(II), 47(2) and 5(2) of the Dangerous Drugs Act for possession of 152.8 grams of heroin and was sentenced to imprisonment for 26 years. He was transferred to India as per the Repatriation of Prisoners Act, 2003 (hereinafter, ‘the 2003 Act’) on 04.03.2016. He preferred a representation under Section 13 (6) of the 2003 Act and requested for scaling down the sentence to 10 years as per Section 21 (b) of the Narcotics Drugs and Psychotropic Substances Act, 1994 (hereinafter, ‘NDPS Act’). In the same representation, he also requested that the sentence that he has already undergone in Mauritius may be taken into account for revision of his release date. By an order dated 03.12.2018, the Ministry of Home Affairs, Government of India informed the Respondent that the period spent by him in remand will be deducted from the sentence of 26 years. However, another order was passed on the same day, rejecting his request for reduction of sentence to 10 years from 26 years. The said order rejecting the representation for reduction in sentence was challenged by the Respondent in a Writ Petition before the High Court of Bombay which was allowed by the judgment dated 02.05.2019. Aggrieved thereby, this Appeal is preferred. 2. Detention of foreign prisoners was a matter of concern for the Government of India as well as foreign Governments for which the Repatriation of Prisoners Act, 2003 was enacted in conjunction with bilateral treaties enabling the Central Government to transfer foreign convicted persons to their country and vice versa. One of the objectives of the 2003 Act was the transfer of foreign convicted nationals to their respective nations in order to take care of the human aspect in as much as the said convicts would be near their families and have better chances of social rehabilitation. One of the salient features of the legislation is that the enforcement of the sentence shall be governed by the law of the receiving State. However, the receiving State shall be bound by the legal nature and duration of the sentence as determined by the transferring State. Section 12 and 13 of the 2003 Act, which are relevant for the (1) The Central Government may accept the transfer of a prisoner, who is a citizen of India, from a contracting State wherein he is undergoing any sentence of imprisonment subject to such terms and conditions as may be agreed to between India and that State. (2) If the Central Government accepts the request for a transfer under sub-section (1), then, notwithstanding anything contained in any other law for the time being in force, it may issue a warrant to detain the prisoner in prison in accordance with the provisions of section 13 in such form as may be prescribed. 13. Determination of prison and issue of warrant for receiving (1) The Central Government shall, in consultation with a State Government, determine the prison situated within the jurisdiction of such State Government where the prisoner with respect to whom a warrant has been issued under sub-section (2) of section 12, shall be lodged and the officer who shall receive and hold him in custody. (2) The Central Government shall authorize any officer not below the rank of a Joint Secretary to that Government to issue a warrant under sub-section (2) of section 12 and to direct the officer referred to in sub-section (1) to receive and hold the prisoner, with respect to whom the warrant is issued, in custody. (3) It shall be lawful for the officer referred to in sub-section (1) to receive and hold in custody any prisoner delivered to him under the direction made in the warrant issued under sub-section (2) of section 12 and to convey such prisoner to any prison determined under sub-section (1) for being dealt with in accordance with the said warrant and if the prisoner escapes from such custody, the prisoner may be arrested without warrant by any person who shall without undue delay deliver such prisoner to the officer in charge of the nearest police station and the prisoner so arrested shall be liable for committing an offence under section 224 of the Indian Penal Code (45 of 1860) and shall also be liable to be dealt with in accordance with the said warrant. (4) A warrant under sub-section (2) of section 12 shall provide for— (a) the bringing of the prisoner into India from a contracting State or (b) the taking of such prisoner in any part of India being a place at which effect may be given to the provisions contained in the warrant; (c) the nature and duration of imprisonment of the prisoner in accordance with the terms and conditions referred to in sub-section (1) of section 12 and the imprisonment of such prisoner in India in such manner as may be contained in the warrant; and (d) any other matter which may be prescribed. (5) Notwithstanding anything contained in any other law for the time being in force, the imprisonment of a prisoner in compliance with a warrant issued under sub-section (2) of section 12 shall be deemed to be imprisonment under a sentence of a court competent to pass such a sentence of imprisonment in India. (6) If the sentence of imprisonment passed against the prisoner in the contracting State is incompatible with the Indian law as to its nature, duration or both, the Central Government may, by order, adapt the sentence of such punishment as to the nature, duration or both, as the case may be, as is compatible to the sentence of imprisonment provided for a similar offence had that offence been committed in Provided that the sentence so adapted shall, as far as possible, correspond with the sentence imposed by the judgment of the contracting State to the prisoner and such adapted sentence shall not aggravate the punishment, by its nature, duration or both relating to the sentence imposed in the contracting State.” 3. On 24.10.2005, an agreement was entered into between the Government of India and Government of Mauritius on the Transfer of Prisoners. Article 8 of this Agreement refers to conditions for continued enforcement of sentence, which are as follows: 1. The receiving State shall be bound by the legal nature and duration of the sentence as determined by the transferring State. 2. If, however, the sentence is by its nature or duration or both incompatible with the law of the receiving State, or its law so requires, that State may, by court or administrative order, adapt the sentence to a punishment or measure prescribed by its own law. As to its nature and duration the punishment or measure shall, as far as possible, correspond with that imposed by the judgment of the transferring State. It shall however not aggravate, by its nature or duration, the sentence imposed by the transferring State.” 4. In so far as the conviction and sentence of the Respondent is concerned, he travelled twice to Mauritius in the guise of doing business in scrap metal. On the third occasion, he was found to be in possession of 152.8 grams of heroin and was arrested. The Supreme Court of Mauritius convicted the Respondent after taking into account the mitigating circumstances pleaded by the Respondent and sentenced him to imprisonment for 26 years. On 09.10.2015, an undertaking was given by the Respondent that he will abide by the terms and conditions of the sentence adaptability order issued under the agreement/treaty on transfer of sentenced prisoners entered into between India and Mauritius while making a request for his repatriation to India. Subsequently, his repatriation to India was approved on 04.03.2016 and a warrant of transfer was issued on 24.10.2016. After the transfer of the Respondent to India under the 2003 Act, the Respondent preferred a representation to the Ministry of Home Affairs, Government of India for reduction of sentence from 26 years to 10 years which is the maximum punishment prescribed under Section 21 (b) of the NDPS Act as applicable for the quantity of heroin seized from the Respondent. By an order dated 03.12.2018, his representation for reduction of sentence term was rejected. 5. While allowing the Writ Petition filed by the Respondent, the High Court was of the opinion that if the offence was committed in India, the Respondent would have been sentenced to for a maximum period of 10 years as provided in Section 21(b) of the NDPS Act. The reason given by the authorities for not accepting the request made by the Respondent for reduction of sentence by 10 years was found to be not justifiable. The rejection of the request of the Respondent was found to be in violation of Section 13 (6) of the 2003 Act. On such findings, the High Court declared that the Respondent was entitled for the benefit of adaptation of sentence in terms of Section 13 of the 2003 Act. Notice was issued by this Court on 26.08.2019 in the SLP and the judgment of the High Court was stayed. 6. Ms. Madhvi Divan, learned Additional Solicitor General for India appearing for the Appellant relied upon the statement of objects and reasons of the 2003 Act to submit that the receiving State is bound by the legal nature and duration of the sentence as determined by the transferring State, though the enforcement of the sentence is governed by the law of the receiving State. She further submitted that the Central Government may accept the transfer of the prisoner in accordance with Section 12 of the 2003 Act subject to the terms and conditions as are agreed upon between India and another contracting State. Section 13 (6) of the 2003 Act gives discretion to the Central Government to adapt the sentence of imprisonment passed against the prisoner in the contracting State if it is incompatible with the Indian law as to its nature, duration or both. As per Section 13 (6), the adaptation should be compatible to the sentence of imprisonment provided for a similar offence, had the offence been committed in India. According to the proviso to Section 13 (6), the sentence adapted shall as far as possible, correspond to the sentence imposed by the judgment of the contracting State to the prisoner and such adapted sentence shall not aggravate the punishment by its nature, duration or both relating to the sentenced imposed in the contracting State. The ASG relied upon Article 8 of the agreement between the Government of India and Government of Mauritius to argue that India is bound by the legal nature and duration of the sentence as determined by the transferring State. She asserted that the expression ‘incompatible’ appearing in Section 13 (6) of the 2003 Act was misconstrued by the High Court. According to the learned Additional Solicitor General, discretion vested in the Central Government under Section 13 (6) of the 2003 Act required to be exercised only when the sentence of imprisonment passed against the prisoner by the contracting State is incompatible with the Indian law as a whole. The exercise of discretion of the Central Government under Section 13 (6) of the 2003 Act depends on variety of factors, keeping in mind the comity of nations and strategic partnership. Mechanical reduction of sentence would be detrimental to the interests of the other prisoners awaiting repatriation from Mauritius to India. She further asserted that the Respondent cannot seek reduction of sentence after submitting an undertaking that he will abide by the sentence adaptability order issued at the time of his repatriation back to India. The contention of the Appellant is that the decision to not reduce the sentence of the Respondent is prompted by foreign policy which should not be lightly interfered with by judicial review. The learned Additional Solicitor General further referred to the strong bilateral ties between India and Mauritius which may be adversely affected by interference with the sentence imposed by the Supreme Court of Mauritius in a case of drug trafficking which is a pressing issue in Mauritius presently. 7. Mr. A.M. Dar, learned Senior Counsel appearing for the Respondent justified the judgment of the High Court and submitted that no reasons have been given by the Government for rejecting the representation preferred by the Respondent for reduction of sentence. He submitted that Respondent is being discriminated as the Government of India has reduced the sentence in respect of other persons who have been repatriated to India. He also referred to a judgment of the High Court of Bombay by which the sentence of the petitioner therein was reduced to 20 years from 30 years. During the course of hearing, we were informed that the said judgment is subject matter of a Special Leave Petition pending in this Court. He further stated that there is obvious incompatibility between the sentence imposed by the Supreme Court of Mauritius with the sentence that may be imposed for a similar offence under Section 21 (b) of the NDPS Act. The quantity of heroin which was found to be in possession of the Respondent is an intermediate quantity under the NDPS Act and the maximum sentence that can be imposed on the convict can be only 10 years. As the Respondent has already undergone 10 years, the Government accepted to take into account the sentence undergone by him in Mauritius. 8. To substantiate its argument, the Appellant placed on record a document titled “Commonwealth Human Rights Initiative”, Bringing them Home - Repatriation of Indian Nationals from Foreign Prisons: A Barrier Analysis, 2017. In this document, a reference has been made to the ‘Guidelines for the Transfer of Sentenced Persons under the Repatriation of Prisoners Act, 2003’ issued by the Ministry of Home Affairs, Government of India on 10.08.2015 under the Repatriation Act, 2003. As per the guidelines, in case of adaptation of sentence of a prisoner convicted on the charge of drug trafficking, a reference has to be made to the Narcotics Control Bureau (NCB) to assess the proposed repatriation and the probabilities of the prisoner indulging in similar activity on his release. Before granting permission for repatriation, the prisoner has to be informed about the total quantum of sentence which he will have to undergo in India and repatriation would be allowed only if the prisoner gives his consent in writing. There is no dispute that the Respondent has given an undertaking to this effect on 19.10.2015. 9. The question that arises for our consideration is related to the interpretation on Sections 12 and 13 (6) of the 2003 Act and Article 8 of the transfer of sentenced prisoners’ agreement entered between Indian and Mauritius. 10. The preamble of the 2003 Act initially reads as follows: - “An Act to provide for the transfer of certain prisoners from India to country or place outside India and reception in India of certain prisoners from country or place outside India.” 11. The object of the 2003 Act is to provide an opportunity to the convicts to be repatriated to their country so that they can be closer to their families and have better chances of rehabilitation. One of the salient features of the 2003 Act is also that the enforcement of sentence of the repatriated prisoner has to be governed by the law of the receiving State, however in doing so, the receiving State is bound by the legal nature and duration of the sentence as determined by the transferring State. While operating in accordance with this object and feature, Section 12 of the 2003 Act makes it clear that the transfer of a prisoner who is a citizen of India from a contracting State wherein he is undergoing sentence of imprisonment may be accepted by the Central Government, subject to certain conditions that may be agreed between India and the contracting State. The decision to be taken by the Government on the representation preferred for transfer, therefore, shall be subject to the agreement entered into between Republic of India and Republic of Mauritius regarding the transfer of prisoners. Article 8 of the said agreement categorically states that while continuing the enforcement of the sentence, India shall be bound by the legal nature and duration of the sentence as determined by transferring 12. Article 8 (2) of the agreement provides that if the sentence imposed by the transferring State (Mauritius) is incompatible with the law in India by its nature or duration or both, the sentence may be adapted by the receiving State, namely India in this case. The adaptation shall be with regard to the duration or nature of punishment as prescribed by Indian law. However, Article 8 (2) further makes it clear that even when the sentence is adapted by the receiving State (India), the nature and duration of the punishment shall, as far as possible, correspond with that imposed by the transferring State (Mauritius). The provision for adaptation is also found in Section 13(6) of the 2003 Act. Section 13 (6) empowers the Government of India to adapt the sentence compatible to the sentence of imprisonment provided for a similar offence had that offence been committed in India, provided the sentence of imprisonment passed in the contracting State (Mauritius) is incompatible with Indian law. 13. It is also relevant to examine the scope of Section 12 (2) of the 2003 Act. The Section enables the Government to issue a warrant to detain the prisoner in accordance with the provisions contained in Section 13 (4) if the Government decides to accept the transfer of a prisoner under Section 12(1) of the Act. Section 13 (4) (c) of the Act makes it clear that a warrant shall state the nature and duration of imprisonment of the prisoner in accordance with the terms and conditions as referred to in Section 12 (1) and the imprisonment of such prisoner in India shall be in such manner as may be contained in the warrant. It is relevant to note that the warrant issued in this case on 24.10.2016 refers to the sentence of the Respondent as 26 14. On a combined reading of Section 12 and 13 of the 2003 Act and Article 8 of the Agreement, the following principles can be A. Any request for transfer of a prisoner from a contracting State to India shall be subject to the terms and conditions as stated in the agreement between a contracting State and Government of India. B. The duration of imprisonment shall be in accordance with the terms and conditions referred to in Section 12 (1) of the 2003 Act, meaning thereby that the acceptance of transfer of a prisoner shall be subject to the terms and conditions in the agreement between the two countries with respect to the transfer of prisoners. To make it further clear, the sentence imposed by the transferring State shall be binding on the receiving State i.e., India. C. On acceptance of the request for transfer of an Indian prisoner convicted and sentenced in a contracting State, a warrant shall be issued for detention of the prisoner in accordance with the provisions of Section 13 of the 2003 Act in the form prescribed. D. The warrant which is to be issued has to provide for the nature and duration of imprisonment of prison in accordance with the terms and conditions as mentioned in Section 12(1) of the Act, that is, as agreed between the two contracting States. E. The imprisonment of the transferred prisoner shall be in accordance with the warrant. F. The Government is empowered to adapt the sentence to that provided for a similar offence had that offence been committed in India. This can be done only in a situation where the Government is satisfied that the sentence of the imprisonment is incompatible with Indian law as to its nature, duration or both. G. In the event that the Government is considering a request for adaptation, it has to make sure that the adapted sentence corresponds to the sentence imposed by the contracting state, as far as possible. 15. It is, therefore, clear that the sentence imposed by the Supreme Court of Mauritius in this case is binding on India. A warrant of detention was issued in which it was specified that the Respondent has to undergo a sentence of 26 years. As per Section 13 (4), the sentence shall be 26 years. The question of adaptation of the sentence can only be when the Central Government is convinced that the sentence imposed by the Supreme Court of Mauritius is incompatible with Indian law. 16. Reference to Indian law in Section 13 (6) is not restricted to a particular Section in NDPS Act. Incompatibility with Indian law is with reference to the enforcement of the sentence imposed by the Supreme Court of Mauritius being contrary to fundamental laws of India. It is only in case of such an exceptional situation, that it is open the Central Government to adapt the sentence imposed by the Supreme Court of Mauritius to be compatible to a sentence of imprisonment provided for the similar offence. Even in cases where adaptation is being considered by the Central Government, it does not necessarily have to adapt the sentence to be exactly in the nature and duration of imprisonment provided for in the similar offence in India. In this circumstance as well, the Central Government has to make sure that the sentence is made compatible with Indian law corresponding to the nature and duration of the sentence imposed by the Supreme Court of Mauritius, as far as possible. 17. The High Court allowed the Writ Petition only on the ground that there is incompatibility between the sentence imposed on the Respondent by the Supreme Court of India and a sentence that would have been imposed on the Respondent if a similar offence would have been committed in India. In doing so, the High Court failed to examine the statement of object and reasons for the 2003 Act, the scope of Sections 12 and 13 of the 2003 Act and the agreement for transfer of prisoners as entered into between Republic of India and Republic of Mauritius. 18. The adaptation of sentence from 26 years to 10 years as per Section 21 (b) of the NDPS Act was rejected by the Central Government on the ground that it would amount to reduction of sentence by 16 years which would not be in consonance with Section 13 (6) of the 2003 Act and Article 8 of the Agreement. The reasons recorded by the Central Government to reject the request for scaling down the sentence are in accordance with the provisions of the 2003 Act and the agreement entered into between India and Mauritius as discussed above. As we have upheld the order of the Central Government, for the reasons given above, it is not necessary to refer to the other submissions made by the learned Additional 19. For the aforementioned reasons, the Appeal is allowed.
The Supreme Court has made an important decision about how to bring Indian prisoners back home from foreign countries. This is based on a law called the Repatriation of Prisoners Act of 2003. The Court looked at whether an Indian person brought back from a foreign prison could have a longer sentence than they would get for the same crime in India. The Court decided that the length of the prison time depends on the agreement between the foreign country and India. India's government can only change a foreign sentence if it "doesn't fit with Indian law." But the Court also said that a foreign sentence being longer than an Indian one doesn't automatically mean it "doesn't fit with Indian law." "Doesn't fit" here means going against the basic, core laws of India. Two judges, Justices L. Nageswara Rao and B.R. Gavai, agreed with a request from the Indian government. This request challenged an earlier decision by the Bombay High Court. The High Court had decided to lower the sentence given by Mauritius's highest court to a person because it thought the sentence was "incompatible" with what they would get for a similar crime in India. Factual Background Here's what happened: Mauritius's highest court found the person guilty of having about 150 grams of heroin. They sentenced him to 26 years in prison. Then, in 2016, he was moved back to India under the Repatriation Act. The person asked the Indian government to lower his sentence to 10 years, arguing that this was what he would get under India's drug laws. He also asked for credit for time already served in Mauritius. In 2018, the Indian government agreed to count the time he had already spent in jail, but it refused to cut his sentence to 10 years. He then took this refusal to the Bombay High Court, which ruled in his favor in 2019. In this specific case, the person had visited Mauritius twice, pretending to be in the scrap metal business. On his third trip, he was caught with heroin. The Mauritius court considered factors that might make his sentence less harsh before deciding on his 26-year prison term. When he asked to be transferred back to India, he swore in a legal document that he would accept his sentence. However, once he arrived in India, he asked for his sentence to be reduced. Contentions raised by the Central Government Ms. Madhvi Divan, a top government lawyer representing the Indian government, argued that the Repatriation Act clearly states that the country receiving a prisoner (India) must respect the length of the sentence given by the country sending the prisoner (Mauritius). She pointed to a specific part (Article 8) of the agreement between India and Mauritius. She said this agreement means India must accept the type and length of the sentence set by Mauritius. She also argued that India could only change the sentence if it "didn't fit with Indian law," which she claimed was not true in this case. Ms. Divan also stressed that the prisoner had promised to accept his sentence when he applied for transfer. She added that the government's decision not to reduce the sentence was based on foreign policy, and courts shouldn't easily overturn such decisions, as it could harm India's relationship with other countries. Contentions raised by the respondent Mr. A.M. Dhar, a senior lawyer for the prisoner, argued that the government did not give clear reasons for denying the request to reduce the sentence. He also pointed out that the government had lowered sentences for other prisoners brought back to India many times before. To support his points, Mr. Dhar mentioned a past Bombay High Court decision where a sentence was cut from 30 years to 20 years. He was told during the hearing that this specific case was still being reviewed by the Supreme Court. Mr. Dhar's main argument was that for having a medium amount of drugs, India's law (the NDPS Act) sets a maximum sentence of 10 years. Therefore, he claimed, a 26-year sentence "didn't fit" with Indian law. Analysis by the Supreme Court The Indian government showed the Supreme Court a document from 2017 called "Bringing them Home," which included "Guidelines" from the Ministry of Home Affairs about transferring prisoners under the Repatriation Act. The Court looked at these guidelines. They said that when changing a drug trafficker's sentence, the Narcotics Bureau of India must be consulted. This is to check the planned transfer and whether the person might commit similar crimes again. Before a prisoner is brought back, they must be told how long their sentence will be in India. The transfer only happens if the person agrees to that length of punishment. The Court noted that this particular prisoner had indeed signed a promise to accept his sentence back in 2015. Objective of the Repatriation of Prisoners Act, 2003 The Repatriation of Prisoners Act of 2003 was created because keeping Indian prisoners in foreign jails was a problem. This law works with agreements between India and other countries. It allows India to send foreign prisoners home and bring Indian prisoners back from other countries. The main goal of these transfers is to let prisoners be closer to their families. It also aims to give them a better chance at fitting back into society. A key part of this Act is that while the rules for carrying out the sentence follow the laws of the country receiving the prisoner (India), the actual type and length of the sentence must be respected as set by the country that originally sentenced them. Principles Culled Out by the Supreme Court On reading Sections 12 and 13 of the Act together with Article 8 of the Agreement, the Supreme Court listed these principles: A. Any request to transfer a prisoner from another country that has an agreement with India must follow the rules in that agreement between the two countries. B. The length of time a prisoner stays in jail must follow what is written in Section 12(1) of the 2003 Act. This means India agrees to take a prisoner only if it accepts the rules in the transfer agreement with the other country. To be clear, the sentence given by the country that sent the prisoner must be accepted by the country that receives the prisoner, which is India. C. Once India agrees to take an Indian prisoner who was found guilty and sentenced in another country, an official order called a "warrant" will be issued. This warrant allows the prisoner to be held in India, following the rules in Section 13 of the 2003 Act and in the correct legal format. D. The warrant that is issued must state the type and length of the prison sentence. This must match the rules and conditions mentioned in Section 12(1) of the Act, which means it must be what the two countries agreed upon. E. The imprisonment of the A prisoner who is transferred will be held according to the official document (warrant) that orders their imprisonment. F. The Government has the power to change a prisoner's sentence to match what a similar crime would receive if it were committed in India. This can only happen if the Government believes the prison sentence does not fit Indian law. This might be because of its type, how long it is, or both. G. If the Government is thinking about changing a sentence, it must make sure the new sentence is as close as possible to the one given by the country that sent the prisoner. Based on these rules, the Court stated that the punishment given by the Supreme Court of Mauritius had to be followed in India. An official document (warrant) was issued for the prisoner's detention. This document clearly said the prisoner had to serve a 26-year sentence. The Court said that changing the sentence would only be considered if the Central Government believed the punishment from Mauritius didn't fit Indian Law. The Court clarified that "Indian law" here doesn't just mean the specific rules of the NDPS Act (a law about drugs). Instead, "doesn't fit" means it goes against India's basic laws. The Court also added: Even when the Central Government considers changing a sentence, it doesn't have to make the punishment exactly like what a similar crime would get in India, in terms of its type and length. Even in this situation, the Central Government must make sure the sentence matches Indian law as closely as possible, based on the type and length of the sentence given by the Supreme Court of Mauritius. The Court agreed with the Central Government's decision. It said that the choice to reject reducing the sentence from 26 years to 10 years followed the rules of the Repatriation Act (a law about bringing prisoners back to their home country) and the agreement between India and Mauritius.
1. The Respondent was convicted by the Supreme Court of Mauritius under Section 30(1)(f)(II), 47(2) and 5(2) of the Dangerous Drugs Act for possession of 152.8 grams of heroin and was sentenced to imprisonment for 26 years. He was transferred to India as per the Repatriation of Prisoners Act, 2003 (hereinafter, ‘the 2003 Act’) on 04.03.2016. He preferred a representation under Section 13 (6) of the 2003 Act and requested for scaling down the sentence to 10 years as per Section 21 (b) of the Narcotics Drugs and Psychotropic Substances Act, 1994 (hereinafter, ‘NDPS Act’). In the same representation, he also requested that the sentence that he has already undergone in Mauritius may be taken into account for revision of his release date. By an order dated 03.12.2018, the Ministry of Home Affairs, Government of India informed the Respondent that the period spent by him in remand will be deducted from the sentence of 26 years. However, another order was passed on the same day, rejecting his request for reduction of sentence to 10 years from 26 years. The said order rejecting the representation for reduction in sentence was challenged by the Respondent in a Writ Petition before the High Court of Bombay which was allowed by the judgment dated 02.05.2019. Aggrieved thereby, this Appeal is preferred. 2. Detention of foreign prisoners was a matter of concern for the Government of India as well as foreign Governments for which the Repatriation of Prisoners Act, 2003 was enacted in conjunction with bilateral treaties enabling the Central Government to transfer foreign convicted persons to their country and vice versa. One of the objectives of the 2003 Act was the transfer of foreign convicted nationals to their respective nations in order to take care of the human aspect in as much as the said convicts would be near their families and have better chances of social rehabilitation. One of the salient features of the legislation is that the enforcement of the sentence shall be governed by the law of the receiving State. However, the receiving State shall be bound by the legal nature and duration of the sentence as determined by the transferring State. Section 12 and 13 of the 2003 Act, which are relevant for the (1) The Central Government may accept the transfer of a prisoner, who is a citizen of India, from a contracting State wherein he is undergoing any sentence of imprisonment subject to such terms and conditions as may be agreed to between India and that State. (2) If the Central Government accepts the request for a transfer under sub-section (1), then, notwithstanding anything contained in any other law for the time being in force, it may issue a warrant to detain the prisoner in prison in accordance with the provisions of section 13 in such form as may be prescribed. 13. Determination of prison and issue of warrant for receiving (1) The Central Government shall, in consultation with a State Government, determine the prison situated within the jurisdiction of such State Government where the prisoner with respect to whom a warrant has been issued under sub-section (2) of section 12, shall be lodged and the officer who shall receive and hold him in custody. (2) The Central Government shall authorize any officer not below the rank of a Joint Secretary to that Government to issue a warrant under sub-section (2) of section 12 and to direct the officer referred to in sub-section (1) to receive and hold the prisoner, with respect to whom the warrant is issued, in custody. (3) It shall be lawful for the officer referred to in sub-section (1) to receive and hold in custody any prisoner delivered to him under the direction made in the warrant issued under sub-section (2) of section 12 and to convey such prisoner to any prison determined under sub-section (1) for being dealt with in accordance with the said warrant and if the prisoner escapes from such custody, the prisoner may be arrested without warrant by any person who shall without undue delay deliver such prisoner to the officer in charge of the nearest police station and the prisoner so arrested shall be liable for committing an offence under section 224 of the Indian Penal Code (45 of 1860) and shall also be liable to be dealt with in accordance with the said warrant. (4) A warrant under sub-section (2) of section 12 shall provide for— (a) the bringing of the prisoner into India from a contracting State or (b) the taking of such prisoner in any part of India being a place at which effect may be given to the provisions contained in the warrant; (c) the nature and duration of imprisonment of the prisoner in accordance with the terms and conditions referred to in sub-section (1) of section 12 and the imprisonment of such prisoner in India in such manner as may be contained in the warrant; and (d) any other matter which may be prescribed. (5) Notwithstanding anything contained in any other law for the time being in force, the imprisonment of a prisoner in compliance with a warrant issued under sub-section (2) of section 12 shall be deemed to be imprisonment under a sentence of a court competent to pass such a sentence of imprisonment in India. (6) If the sentence of imprisonment passed against the prisoner in the contracting State is incompatible with the Indian law as to its nature, duration or both, the Central Government may, by order, adapt the sentence of such punishment as to the nature, duration or both, as the case may be, as is compatible to the sentence of imprisonment provided for a similar offence had that offence been committed in Provided that the sentence so adapted shall, as far as possible, correspond with the sentence imposed by the judgment of the contracting State to the prisoner and such adapted sentence shall not aggravate the punishment, by its nature, duration or both relating to the sentence imposed in the contracting State.” 3. On 24.10.2005, an agreement was entered into between the Government of India and Government of Mauritius on the Transfer of Prisoners. Article 8 of this Agreement refers to conditions for continued enforcement of sentence, which are as follows: 1. The receiving State shall be bound by the legal nature and duration of the sentence as determined by the transferring State. 2. If, however, the sentence is by its nature or duration or both incompatible with the law of the receiving State, or its law so requires, that State may, by court or administrative order, adapt the sentence to a punishment or measure prescribed by its own law. As to its nature and duration the punishment or measure shall, as far as possible, correspond with that imposed by the judgment of the transferring State. It shall however not aggravate, by its nature or duration, the sentence imposed by the transferring State.” 4. In so far as the conviction and sentence of the Respondent is concerned, he travelled twice to Mauritius in the guise of doing business in scrap metal. On the third occasion, he was found to be in possession of 152.8 grams of heroin and was arrested. The Supreme Court of Mauritius convicted the Respondent after taking into account the mitigating circumstances pleaded by the Respondent and sentenced him to imprisonment for 26 years. On 09.10.2015, an undertaking was given by the Respondent that he will abide by the terms and conditions of the sentence adaptability order issued under the agreement/treaty on transfer of sentenced prisoners entered into between India and Mauritius while making a request for his repatriation to India. Subsequently, his repatriation to India was approved on 04.03.2016 and a warrant of transfer was issued on 24.10.2016. After the transfer of the Respondent to India under the 2003 Act, the Respondent preferred a representation to the Ministry of Home Affairs, Government of India for reduction of sentence from 26 years to 10 years which is the maximum punishment prescribed under Section 21 (b) of the NDPS Act as applicable for the quantity of heroin seized from the Respondent. By an order dated 03.12.2018, his representation for reduction of sentence term was rejected. 5. While allowing the Writ Petition filed by the Respondent, the High Court was of the opinion that if the offence was committed in India, the Respondent would have been sentenced to for a maximum period of 10 years as provided in Section 21(b) of the NDPS Act. The reason given by the authorities for not accepting the request made by the Respondent for reduction of sentence by 10 years was found to be not justifiable. The rejection of the request of the Respondent was found to be in violation of Section 13 (6) of the 2003 Act. On such findings, the High Court declared that the Respondent was entitled for the benefit of adaptation of sentence in terms of Section 13 of the 2003 Act. Notice was issued by this Court on 26.08.2019 in the SLP and the judgment of the High Court was stayed. 6. Ms. Madhvi Divan, learned Additional Solicitor General for India appearing for the Appellant relied upon the statement of objects and reasons of the 2003 Act to submit that the receiving State is bound by the legal nature and duration of the sentence as determined by the transferring State, though the enforcement of the sentence is governed by the law of the receiving State. She further submitted that the Central Government may accept the transfer of the prisoner in accordance with Section 12 of the 2003 Act subject to the terms and conditions as are agreed upon between India and another contracting State. Section 13 (6) of the 2003 Act gives discretion to the Central Government to adapt the sentence of imprisonment passed against the prisoner in the contracting State if it is incompatible with the Indian law as to its nature, duration or both. As per Section 13 (6), the adaptation should be compatible to the sentence of imprisonment provided for a similar offence, had the offence been committed in India. According to the proviso to Section 13 (6), the sentence adapted shall as far as possible, correspond to the sentence imposed by the judgment of the contracting State to the prisoner and such adapted sentence shall not aggravate the punishment by its nature, duration or both relating to the sentenced imposed in the contracting State. The ASG relied upon Article 8 of the agreement between the Government of India and Government of Mauritius to argue that India is bound by the legal nature and duration of the sentence as determined by the transferring State. She asserted that the expression ‘incompatible’ appearing in Section 13 (6) of the 2003 Act was misconstrued by the High Court. According to the learned Additional Solicitor General, discretion vested in the Central Government under Section 13 (6) of the 2003 Act required to be exercised only when the sentence of imprisonment passed against the prisoner by the contracting State is incompatible with the Indian law as a whole. The exercise of discretion of the Central Government under Section 13 (6) of the 2003 Act depends on variety of factors, keeping in mind the comity of nations and strategic partnership. Mechanical reduction of sentence would be detrimental to the interests of the other prisoners awaiting repatriation from Mauritius to India. She further asserted that the Respondent cannot seek reduction of sentence after submitting an undertaking that he will abide by the sentence adaptability order issued at the time of his repatriation back to India. The contention of the Appellant is that the decision to not reduce the sentence of the Respondent is prompted by foreign policy which should not be lightly interfered with by judicial review. The learned Additional Solicitor General further referred to the strong bilateral ties between India and Mauritius which may be adversely affected by interference with the sentence imposed by the Supreme Court of Mauritius in a case of drug trafficking which is a pressing issue in Mauritius presently. 7. Mr. A.M. Dar, learned Senior Counsel appearing for the Respondent justified the judgment of the High Court and submitted that no reasons have been given by the Government for rejecting the representation preferred by the Respondent for reduction of sentence. He submitted that Respondent is being discriminated as the Government of India has reduced the sentence in respect of other persons who have been repatriated to India. He also referred to a judgment of the High Court of Bombay by which the sentence of the petitioner therein was reduced to 20 years from 30 years. During the course of hearing, we were informed that the said judgment is subject matter of a Special Leave Petition pending in this Court. He further stated that there is obvious incompatibility between the sentence imposed by the Supreme Court of Mauritius with the sentence that may be imposed for a similar offence under Section 21 (b) of the NDPS Act. The quantity of heroin which was found to be in possession of the Respondent is an intermediate quantity under the NDPS Act and the maximum sentence that can be imposed on the convict can be only 10 years. As the Respondent has already undergone 10 years, the Government accepted to take into account the sentence undergone by him in Mauritius. 8. To substantiate its argument, the Appellant placed on record a document titled “Commonwealth Human Rights Initiative”, Bringing them Home - Repatriation of Indian Nationals from Foreign Prisons: A Barrier Analysis, 2017. In this document, a reference has been made to the ‘Guidelines for the Transfer of Sentenced Persons under the Repatriation of Prisoners Act, 2003’ issued by the Ministry of Home Affairs, Government of India on 10.08.2015 under the Repatriation Act, 2003. As per the guidelines, in case of adaptation of sentence of a prisoner convicted on the charge of drug trafficking, a reference has to be made to the Narcotics Control Bureau (NCB) to assess the proposed repatriation and the probabilities of the prisoner indulging in similar activity on his release. Before granting permission for repatriation, the prisoner has to be informed about the total quantum of sentence which he will have to undergo in India and repatriation would be allowed only if the prisoner gives his consent in writing. There is no dispute that the Respondent has given an undertaking to this effect on 19.10.2015. 9. The question that arises for our consideration is related to the interpretation on Sections 12 and 13 (6) of the 2003 Act and Article 8 of the transfer of sentenced prisoners’ agreement entered between Indian and Mauritius. 10. The preamble of the 2003 Act initially reads as follows: - “An Act to provide for the transfer of certain prisoners from India to country or place outside India and reception in India of certain prisoners from country or place outside India.” 11. The object of the 2003 Act is to provide an opportunity to the convicts to be repatriated to their country so that they can be closer to their families and have better chances of rehabilitation. One of the salient features of the 2003 Act is also that the enforcement of sentence of the repatriated prisoner has to be governed by the law of the receiving State, however in doing so, the receiving State is bound by the legal nature and duration of the sentence as determined by the transferring State. While operating in accordance with this object and feature, Section 12 of the 2003 Act makes it clear that the transfer of a prisoner who is a citizen of India from a contracting State wherein he is undergoing sentence of imprisonment may be accepted by the Central Government, subject to certain conditions that may be agreed between India and the contracting State. The decision to be taken by the Government on the representation preferred for transfer, therefore, shall be subject to the agreement entered into between Republic of India and Republic of Mauritius regarding the transfer of prisoners. Article 8 of the said agreement categorically states that while continuing the enforcement of the sentence, India shall be bound by the legal nature and duration of the sentence as determined by transferring 12. Article 8 (2) of the agreement provides that if the sentence imposed by the transferring State (Mauritius) is incompatible with the law in India by its nature or duration or both, the sentence may be adapted by the receiving State, namely India in this case. The adaptation shall be with regard to the duration or nature of punishment as prescribed by Indian law. However, Article 8 (2) further makes it clear that even when the sentence is adapted by the receiving State (India), the nature and duration of the punishment shall, as far as possible, correspond with that imposed by the transferring State (Mauritius). The provision for adaptation is also found in Section 13(6) of the 2003 Act. Section 13 (6) empowers the Government of India to adapt the sentence compatible to the sentence of imprisonment provided for a similar offence had that offence been committed in India, provided the sentence of imprisonment passed in the contracting State (Mauritius) is incompatible with Indian law. 13. It is also relevant to examine the scope of Section 12 (2) of the 2003 Act. The Section enables the Government to issue a warrant to detain the prisoner in accordance with the provisions contained in Section 13 (4) if the Government decides to accept the transfer of a prisoner under Section 12(1) of the Act. Section 13 (4) (c) of the Act makes it clear that a warrant shall state the nature and duration of imprisonment of the prisoner in accordance with the terms and conditions as referred to in Section 12 (1) and the imprisonment of such prisoner in India shall be in such manner as may be contained in the warrant. It is relevant to note that the warrant issued in this case on 24.10.2016 refers to the sentence of the Respondent as 26 14. On a combined reading of Section 12 and 13 of the 2003 Act and Article 8 of the Agreement, the following principles can be A. Any request for transfer of a prisoner from a contracting State to India shall be subject to the terms and conditions as stated in the agreement between a contracting State and Government of India. B. The duration of imprisonment shall be in accordance with the terms and conditions referred to in Section 12 (1) of the 2003 Act, meaning thereby that the acceptance of transfer of a prisoner shall be subject to the terms and conditions in the agreement between the two countries with respect to the transfer of prisoners. To make it further clear, the sentence imposed by the transferring State shall be binding on the receiving State i.e., India. C. On acceptance of the request for transfer of an Indian prisoner convicted and sentenced in a contracting State, a warrant shall be issued for detention of the prisoner in accordance with the provisions of Section 13 of the 2003 Act in the form prescribed. D. The warrant which is to be issued has to provide for the nature and duration of imprisonment of prison in accordance with the terms and conditions as mentioned in Section 12(1) of the Act, that is, as agreed between the two contracting States. E. The imprisonment of the transferred prisoner shall be in accordance with the warrant. F. The Government is empowered to adapt the sentence to that provided for a similar offence had that offence been committed in India. This can be done only in a situation where the Government is satisfied that the sentence of the imprisonment is incompatible with Indian law as to its nature, duration or both. G. In the event that the Government is considering a request for adaptation, it has to make sure that the adapted sentence corresponds to the sentence imposed by the contracting state, as far as possible. 15. It is, therefore, clear that the sentence imposed by the Supreme Court of Mauritius in this case is binding on India. A warrant of detention was issued in which it was specified that the Respondent has to undergo a sentence of 26 years. As per Section 13 (4), the sentence shall be 26 years. The question of adaptation of the sentence can only be when the Central Government is convinced that the sentence imposed by the Supreme Court of Mauritius is incompatible with Indian law. 16. Reference to Indian law in Section 13 (6) is not restricted to a particular Section in NDPS Act. Incompatibility with Indian law is with reference to the enforcement of the sentence imposed by the Supreme Court of Mauritius being contrary to fundamental laws of India. It is only in case of such an exceptional situation, that it is open the Central Government to adapt the sentence imposed by the Supreme Court of Mauritius to be compatible to a sentence of imprisonment provided for the similar offence. Even in cases where adaptation is being considered by the Central Government, it does not necessarily have to adapt the sentence to be exactly in the nature and duration of imprisonment provided for in the similar offence in India. In this circumstance as well, the Central Government has to make sure that the sentence is made compatible with Indian law corresponding to the nature and duration of the sentence imposed by the Supreme Court of Mauritius, as far as possible. 17. The High Court allowed the Writ Petition only on the ground that there is incompatibility between the sentence imposed on the Respondent by the Supreme Court of India and a sentence that would have been imposed on the Respondent if a similar offence would have been committed in India. In doing so, the High Court failed to examine the statement of object and reasons for the 2003 Act, the scope of Sections 12 and 13 of the 2003 Act and the agreement for transfer of prisoners as entered into between Republic of India and Republic of Mauritius. 18. The adaptation of sentence from 26 years to 10 years as per Section 21 (b) of the NDPS Act was rejected by the Central Government on the ground that it would amount to reduction of sentence by 16 years which would not be in consonance with Section 13 (6) of the 2003 Act and Article 8 of the Agreement. The reasons recorded by the Central Government to reject the request for scaling down the sentence are in accordance with the provisions of the 2003 Act and the agreement entered into between India and Mauritius as discussed above. As we have upheld the order of the Central Government, for the reasons given above, it is not necessary to refer to the other submissions made by the learned Additional 19. For the aforementioned reasons, the Appeal is allowed.
The Supreme Court has made an important decision about how to bring Indian prisoners back home from foreign countries. This is based on a law called the Repatriation of Prisoners Act of 2003. The Court looked at whether an Indian person brought back from a foreign prison could have a longer sentence than they would get for the same crime in India. The Court decided that the length of the prison time depends on the agreement between the foreign country and India. India's government can only change a foreign sentence if it "doesn't fit with Indian law." But the Court also said that a foreign sentence being longer than an Indian one doesn't automatically mean it "doesn't fit with Indian law." "Doesn't fit" here means going against the basic, core laws of India. Two judges, Justices L. Nageswara Rao and B.R. Gavai, agreed with a request from the Indian government. This request challenged an earlier decision by the Bombay High Court. The High Court had decided to lower the sentence given by Mauritius's highest court to a person because it thought the sentence was "incompatible" with what they would get for a similar crime in India. Factual Background Here's what happened: Mauritius's highest court found the person guilty of having about 150 grams of heroin. They sentenced him to 26 years in prison. Then, in 2016, he was moved back to India under the Repatriation Act. The person asked the Indian government to lower his sentence to 10 years, arguing that this was what he would get under India's drug laws. He also asked for credit for time already served in Mauritius. In 2018, the Indian government agreed to count the time he had already spent in jail, but it refused to cut his sentence to 10 years. He then took this refusal to the Bombay High Court, which ruled in his favor in 2019. In this specific case, the person had visited Mauritius twice, pretending to be in the scrap metal business. On his third trip, he was caught with heroin. The Mauritius court considered factors that might make his sentence less harsh before deciding on his 26-year prison term. When he asked to be transferred back to India, he swore in a legal document that he would accept his sentence. However, once he arrived in India, he asked for his sentence to be reduced. Contentions raised by the Central Government Ms. Madhvi Divan, a top government lawyer representing the Indian government, argued that the Repatriation Act clearly states that the country receiving a prisoner (India) must respect the length of the sentence given by the country sending the prisoner (Mauritius). She pointed to a specific part (Article 8) of the agreement between India and Mauritius. She said this agreement means India must accept the type and length of the sentence set by Mauritius. She also argued that India could only change the sentence if it "didn't fit with Indian law," which she claimed was not true in this case. Ms. Divan also stressed that the prisoner had promised to accept his sentence when he applied for transfer. She added that the government's decision not to reduce the sentence was based on foreign policy, and courts shouldn't easily overturn such decisions, as it could harm India's relationship with other countries. Contentions raised by the respondent Mr. A.M. Dhar, a senior lawyer for the prisoner, argued that the government did not give clear reasons for denying the request to reduce the sentence. He also pointed out that the government had lowered sentences for other prisoners brought back to India many times before. To support his points, Mr. Dhar mentioned a past Bombay High Court decision where a sentence was cut from 30 years to 20 years. He was told during the hearing that this specific case was still being reviewed by the Supreme Court. Mr. Dhar's main argument was that for having a medium amount of drugs, India's law (the NDPS Act) sets a maximum sentence of 10 years. Therefore, he claimed, a 26-year sentence "didn't fit" with Indian law. Analysis by the Supreme Court The Indian government showed the Supreme Court a document from 2017 called "Bringing them Home," which included "Guidelines" from the Ministry of Home Affairs about transferring prisoners under the Repatriation Act. The Court looked at these guidelines. They said that when changing a drug trafficker's sentence, the Narcotics Bureau of India must be consulted. This is to check the planned transfer and whether the person might commit similar crimes again. Before a prisoner is brought back, they must be told how long their sentence will be in India. The transfer only happens if the person agrees to that length of punishment. The Court noted that this particular prisoner had indeed signed a promise to accept his sentence back in 2015. Objective of the Repatriation of Prisoners Act, 2003 The Repatriation of Prisoners Act of 2003 was created because keeping Indian prisoners in foreign jails was a problem. This law works with agreements between India and other countries. It allows India to send foreign prisoners home and bring Indian prisoners back from other countries. The main goal of these transfers is to let prisoners be closer to their families. It also aims to give them a better chance at fitting back into society. A key part of this Act is that while the rules for carrying out the sentence follow the laws of the country receiving the prisoner (India), the actual type and length of the sentence must be respected as set by the country that originally sentenced them. Principles Culled Out by the Supreme Court On reading Sections 12 and 13 of the Act together with Article 8 of the Agreement, the Supreme Court listed these principles: A. Any request to transfer a prisoner from another country that has an agreement with India must follow the rules in that agreement between the two countries. B. The length of time a prisoner stays in jail must follow what is written in Section 12(1) of the 2003 Act. This means India agrees to take a prisoner only if it accepts the rules in the transfer agreement with the other country. To be clear, the sentence given by the country that sent the prisoner must be accepted by the country that receives the prisoner, which is India. C. Once India agrees to take an Indian prisoner who was found guilty and sentenced in another country, an official order called a "warrant" will be issued. This warrant allows the prisoner to be held in India, following the rules in Section 13 of the 2003 Act and in the correct legal format. D. The warrant that is issued must state the type and length of the prison sentence. This must match the rules and conditions mentioned in Section 12(1) of the Act, which means it must be what the two countries agreed upon. E. The imprisonment of the A prisoner who is transferred will be held according to the official document (warrant) that orders their imprisonment. F. The Government has the power to change a prisoner's sentence to match what a similar crime would receive if it were committed in India. This can only happen if the Government believes the prison sentence does not fit Indian law. This might be because of its type, how long it is, or both. G. If the Government is thinking about changing a sentence, it must make sure the new sentence is as close as possible to the one given by the country that sent the prisoner. Based on these rules, the Court stated that the punishment given by the Supreme Court of Mauritius had to be followed in India. An official document (warrant) was issued for the prisoner's detention. This document clearly said the prisoner had to serve a 26-year sentence. The Court said that changing the sentence would only be considered if the Central Government believed the punishment from Mauritius didn't fit Indian Law. The Court clarified that "Indian law" here doesn't just mean the specific rules of the NDPS Act (a law about drugs). Instead, "doesn't fit" means it goes against India's basic laws. The Court also added: Even when the Central Government considers changing a sentence, it doesn't have to make the punishment exactly like what a similar crime would get in India, in terms of its type and length. Even in this situation, the Central Government must make sure the sentence matches Indian law as closely as possible, based on the type and length of the sentence given by the Supreme Court of Mauritius. The Court agreed with the Central Government's decision. It said that the choice to reject reducing the sentence from 26 years to 10 years followed the rules of the Repatriation Act (a law about bringing prisoners back to their home country) and the agreement between India and Mauritius.
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Counsel for Applicant :- Sarfraz Ahmad,Amit Kumar Counsel for Opposite Party :- G.A.,Alok Kumar Singh,Sanjay Heard learned counsel for the applicant as well as learned A.G.A. for the State of U.P. and perused the record. The present bail application has been filed on behalf of the applicant in Case Crime No. 636 of 2019, under Sections 376- D, 377, 506 I.P.C. and Section 3/4, 5 G of the POCSO Act, Police Station- Khiri, District- Khiri, with the prayer to enlarge him on bail. Learned counsel for the applicant submitted that due to panchayat election the applicant was falsely implicated on behest of Ambrish and father of the prosecutrix. He further submitted that father of the prosecutrix is habitual of using the prosecutrix and her sister as a tool and earlier F.I.R. as case crime no. C-292 of 2013 under Sections 363, 366, 368, 376 I.P.C., Police Station-Khiri District- Khiri was lodged by the sister of the prosecutrix against the other villagers and thereafter she entered into compromise and the final report was submitted by the Investigating Officer. He further submitted that as per prosecution version the prosecutrix is aged about 20years and on 28.10.2019 at about 10:00 a.m. she went to fileld of paddy crop and then applicant and other co-accused persons came there and caught her hand and started dragging the prosecutrix and at the same time brother of prosecutrix reached on the spot and all the accused persons ran away. Learned counsel for the applicant submitted that this F.I.R. was lodged on 28.10.2019 at 18:51 hours after eight hours about the incident. Prosecutrix was medically examined and her statements under Sections 161 Cr.P.C. and 164 Cr.P.C. were also recorded in which she developed a case of rape against the accused persons and the applicant. The statement of the brother of the prosecutrix was also recorded in which he stated that he went to take sugar cane leaves and after hearing the crying of her sister he reached on the spot and saw that accused persons including the applicant were committing rape with the prosecutrix and after seeing him they ran away by giving life threat but medico legal report of the prosecutrix does not support the oral testimony of the prosecutrix, as she stated that gang rape was committed with her. Learned counsel for the applicant has further submitted that in the counter affidavit criminal history of five cases has been shown against the applicant and out of five cases the applicant has been acquitted in three cases and this fact has been mentioned in the paragraph no. 12 of the rejoinder affidavit. The applicant is in jail since 2.12.2019 and till today trial has not been concluded while as per Section 35 of the POCSO Act the trial court shall record the statement of the victim within one month and trial shall be concluded within one year. Therefore, the applicant is entitled for bail. In case of being enlarged on bail, he will not misuse the liberty of bail. Learned A.G.A. has opposed the prayer for grant of bail to the applicant but he has not disputed the fact that there is contradiction in the contents of the F.I.R. and the statement of the victim recorded under Section 161 Cr.P.C. and 164 Cr.P.C. He also submitted that F.I.R. is in encyclopedia, as allegation of rape has been made against the applicant and other co-accused Considering the rival submissions of learned counsel for parties, considering the contents of the F.I.R. and the statement of the brother of the informant as well as medico legal report of the prosecutrix and without expressing any opinion on the merits of the case, I am of the view that the applicant is entitled to be released on bail. Let applicant - Ram Audhi @ Sudhir Kumar be released on bail in aforesaid Case Crime, on his furnishing personal bond and two reliable sureties each of the like amount to the satisfaction of the court concerned subject to following (1) Applicant will not try to influence the witnesses or tamper with the evidence of the case or otherwise misuse the liberty of (2) Applicant will fully cooperate in expeditious disposal of the case and shall not seek any adjournment on the dates fixed for evidence when witnesses are present in the Court. (3) Applicant shall remain present, in person, before the trial court on the dates fixed for (a) opening of the case, (b) framing of charge; and (c) recording of statement under Section 313 Any violation of above conditions will be treated misuse of bail and learned Court below will be at liberty to pass appropriate order in the matter regarding cancellation of bail. On perusal of the case diary provided by the learned A.G.A. it appears that site plan is prepared by the Investigating Officer in a most cursory manner, as it is duty of the Investigating Officer to take all precautions to prepare true site plan with dimensions during the course of the investigation and it is obligatory to show distance from one point to other.. Director General of Police, U.P., is directed to issue necessary direction in relation to the preparation of true site plan/map with dimensions by the Investigating Officer in the correct manner and also ensure for taking photograph of the spot and annexed with site plan, as nowadays every Investigating Officer is having smart phone. Office is directed to communicate this order to D.G.P. Police.
The Allahabad High Court recently told the top police officer in Uttar Pradesh to give clear instructions to police officers. These instructions are about how to properly make accurate maps of crime scenes, showing all measurements. Police officers also need to take photos of the crime scene using their smartphones. Justice Rajeev Singh's court gave this order while approving a request for bail from someone accused of gang rape. The court noticed that in this specific case, the police officer made the crime scene map very quickly and carelessly. The court also emphasized that police officers must be very careful when making accurate crime scene maps during an investigation. They must include all measurements and show the distances between different points. The Allahabad High Court stated, "The top police officer in Uttar Pradesh must issue the necessary instructions for police officers to correctly make accurate crime scene maps with all measurements. They must also ensure that photos of the scene are taken and attached to the map, since every police officer now has a smartphone." The person asking for bail was charged with serious crimes related to sexual assault and threats (these are sections 376-D, 377, 506 of the Indian Penal Code, and sections 3/4, 5G of the POCSO Act). These charges were for a case of rape involving a minor. However, the person applying for bail claimed he was wrongly accused. He said the victim's family often used her and her sister to falsely accuse others in similar cases. It was also mentioned that the victim's sister had previously filed a rape case against other villagers. Later, she reached an agreement, and the police officer filed a final report, closing the case. The defense also argued that the victim's medical report did not support her spoken statements about the gang rape accusations. On the other hand, the government lawyer (called AGA) argued against giving bail to the applicant. But the lawyer did not deny that there were differences between the initial police report (called F.I.R.) and the victim's statements recorded by police (under Section 161 CrPC) and by a judge (under Section 164 CrPC). With all these points in mind, the court considered what both lawyers said. It also reviewed the initial police report, the statement from the victim's brother, and her medical report. The court then granted bail to the applicant. It did this without saying anything about whether the person was actually guilty or innocent of the charges.
Counsel for Applicant :- Sarfraz Ahmad,Amit Kumar Counsel for Opposite Party :- G.A.,Alok Kumar Singh,Sanjay Heard learned counsel for the applicant as well as learned A.G.A. for the State of U.P. and perused the record. The present bail application has been filed on behalf of the applicant in Case Crime No. 636 of 2019, under Sections 376- D, 377, 506 I.P.C. and Section 3/4, 5 G of the POCSO Act, Police Station- Khiri, District- Khiri, with the prayer to enlarge him on bail. Learned counsel for the applicant submitted that due to panchayat election the applicant was falsely implicated on behest of Ambrish and father of the prosecutrix. He further submitted that father of the prosecutrix is habitual of using the prosecutrix and her sister as a tool and earlier F.I.R. as case crime no. C-292 of 2013 under Sections 363, 366, 368, 376 I.P.C., Police Station-Khiri District- Khiri was lodged by the sister of the prosecutrix against the other villagers and thereafter she entered into compromise and the final report was submitted by the Investigating Officer. He further submitted that as per prosecution version the prosecutrix is aged about 20years and on 28.10.2019 at about 10:00 a.m. she went to fileld of paddy crop and then applicant and other co-accused persons came there and caught her hand and started dragging the prosecutrix and at the same time brother of prosecutrix reached on the spot and all the accused persons ran away. Learned counsel for the applicant submitted that this F.I.R. was lodged on 28.10.2019 at 18:51 hours after eight hours about the incident. Prosecutrix was medically examined and her statements under Sections 161 Cr.P.C. and 164 Cr.P.C. were also recorded in which she developed a case of rape against the accused persons and the applicant. The statement of the brother of the prosecutrix was also recorded in which he stated that he went to take sugar cane leaves and after hearing the crying of her sister he reached on the spot and saw that accused persons including the applicant were committing rape with the prosecutrix and after seeing him they ran away by giving life threat but medico legal report of the prosecutrix does not support the oral testimony of the prosecutrix, as she stated that gang rape was committed with her. Learned counsel for the applicant has further submitted that in the counter affidavit criminal history of five cases has been shown against the applicant and out of five cases the applicant has been acquitted in three cases and this fact has been mentioned in the paragraph no. 12 of the rejoinder affidavit. The applicant is in jail since 2.12.2019 and till today trial has not been concluded while as per Section 35 of the POCSO Act the trial court shall record the statement of the victim within one month and trial shall be concluded within one year. Therefore, the applicant is entitled for bail. In case of being enlarged on bail, he will not misuse the liberty of bail. Learned A.G.A. has opposed the prayer for grant of bail to the applicant but he has not disputed the fact that there is contradiction in the contents of the F.I.R. and the statement of the victim recorded under Section 161 Cr.P.C. and 164 Cr.P.C. He also submitted that F.I.R. is in encyclopedia, as allegation of rape has been made against the applicant and other co-accused Considering the rival submissions of learned counsel for parties, considering the contents of the F.I.R. and the statement of the brother of the informant as well as medico legal report of the prosecutrix and without expressing any opinion on the merits of the case, I am of the view that the applicant is entitled to be released on bail. Let applicant - Ram Audhi @ Sudhir Kumar be released on bail in aforesaid Case Crime, on his furnishing personal bond and two reliable sureties each of the like amount to the satisfaction of the court concerned subject to following (1) Applicant will not try to influence the witnesses or tamper with the evidence of the case or otherwise misuse the liberty of (2) Applicant will fully cooperate in expeditious disposal of the case and shall not seek any adjournment on the dates fixed for evidence when witnesses are present in the Court. (3) Applicant shall remain present, in person, before the trial court on the dates fixed for (a) opening of the case, (b) framing of charge; and (c) recording of statement under Section 313 Any violation of above conditions will be treated misuse of bail and learned Court below will be at liberty to pass appropriate order in the matter regarding cancellation of bail. On perusal of the case diary provided by the learned A.G.A. it appears that site plan is prepared by the Investigating Officer in a most cursory manner, as it is duty of the Investigating Officer to take all precautions to prepare true site plan with dimensions during the course of the investigation and it is obligatory to show distance from one point to other.. Director General of Police, U.P., is directed to issue necessary direction in relation to the preparation of true site plan/map with dimensions by the Investigating Officer in the correct manner and also ensure for taking photograph of the spot and annexed with site plan, as nowadays every Investigating Officer is having smart phone. Office is directed to communicate this order to D.G.P. Police.
The Allahabad High Court recently told the top police officer in Uttar Pradesh to give clear instructions to police officers. These instructions are about how to properly make accurate maps of crime scenes, showing all measurements. Police officers also need to take photos of the crime scene using their smartphones. Justice Rajeev Singh's court gave this order while approving a request for bail from someone accused of gang rape. The court noticed that in this specific case, the police officer made the crime scene map very quickly and carelessly. The court also emphasized that police officers must be very careful when making accurate crime scene maps during an investigation. They must include all measurements and show the distances between different points. The Allahabad High Court stated, "The top police officer in Uttar Pradesh must issue the necessary instructions for police officers to correctly make accurate crime scene maps with all measurements. They must also ensure that photos of the scene are taken and attached to the map, since every police officer now has a smartphone." The person asking for bail was charged with serious crimes related to sexual assault and threats (these are sections 376-D, 377, 506 of the Indian Penal Code, and sections 3/4, 5G of the POCSO Act). These charges were for a case of rape involving a minor. However, the person applying for bail claimed he was wrongly accused. He said the victim's family often used her and her sister to falsely accuse others in similar cases. It was also mentioned that the victim's sister had previously filed a rape case against other villagers. Later, she reached an agreement, and the police officer filed a final report, closing the case. The defense also argued that the victim's medical report did not support her spoken statements about the gang rape accusations. On the other hand, the government lawyer (called AGA) argued against giving bail to the applicant. But the lawyer did not deny that there were differences between the initial police report (called F.I.R.) and the victim's statements recorded by police (under Section 161 CrPC) and by a judge (under Section 164 CrPC). With all these points in mind, the court considered what both lawyers said. It also reviewed the initial police report, the statement from the victim's brother, and her medical report. The court then granted bail to the applicant. It did this without saying anything about whether the person was actually guilty or innocent of the charges.
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2 The Employees’ State Insurance Corporation 1 is in appeal against a judgment of a Division Bench of the Karnataka High Court dated 5 September 2019. The Division Bench rejected the petition filed by the appellant against the promotion of the contesting respondents - Respondent 3 to 25, to the post of “Associate Professor” under the Dynamic Assured Career Progression 2 Scheme as opposed to the appellant’s recruitment regulations. 3 ESIC, the appellant, is a statutory body constituted under the Employees’ State Insurance Act 1948 3. The recruitment and promotion of its teaching staff are governed by the Employees’ State Insurance Corporation (Medical Teaching Faculty Posts) Recruitment Regulations 2015 4 which came into effect on 5 July 2015. Respondent 3 to 25 5 joined the appellant as Assistant Professors at ESIC Model Hospital, Rajajinagar, Bengaluru. They joined service between 7 February 2012 and 26 June 2014. The Central Government, through the Central Health Service Division of the Ministry of Health and Family Welfare, had issued the DACP Scheme through an Office Memorandum dated 29 October 2008. The DACP Scheme contemplated promotion as Associate Professor upon completion of two years of service in the post of Assistant Professor as an officer under the Ministry of Health and Family “ESIC” (interchangeably referred to as the appellant) interchangeably referred to as “contesting respondents” Welfare. After two years of service as Assistant Professor on 2 February 2017, the contesting respondents sought promotion under the DACP Scheme and instituted proceedings before the Central Administrative Tribunal 6, Bengaluru. 4 On 7 February 2018, the CAT relied on the submission by the Counsel for the appellant and held that the ESIC Recruitment Regulations 2015 were not relevant for adjudication of the matter. The CAT also relied on a letter dated 23 September 2014 addressed by the Joint Director of ESIC to the Dean of ESIC which mentioned the implementation of the DACP Scheme to the Medical Officer Cadres. Thus, the CAT directed the appellant to consider the contesting respondents for promotion under the DACP Scheme. 5 The appellant challenged the order of the CAT in a writ petition before the High Court of Karnataka. The High Court dismissed the petition on 5 September (i) Since the contesting respondents were recruited before the ESIC Recruitment Regulations 2015 came into effect, they would get the (ii) The DACP Scheme has statutory effect under Section 17 of the ESI Act. The ESIC Recruitment Regulations 2015 have departed from the DACP Scheme without seeking the prior approval of the Central Government; (iii) Counsel for the appellant conceded that the appellant would implement the DACP Scheme and the ESIC Recruitment Regulations 2015 do not apply. 6 Mr Santhosh Krishnan, appearing on behalf of the appellant has urged the (i) The appellant is an autonomous statutory corporation incorporated under the ESI Act. It is within the administrative control of the Ministry of Labour and (ii) Section 97 of the ESI Act confers power on the appellant to frame its own regulations. The terms and conditions of service of Assistant Professors are governed by the ESIC Recruitment Regulations 2015. These regulations stipulate that a minimum of five years of qualifying service as Assistant Professor is mandatory for promotion as Associate Professor. The ESIC Regulations 2015 cannot be overridden by the DACP Scheme; (iii) The Office Memorandum dated 29 October 2008 implementing the DACP Scheme is applicable to employees of the Ministries and Departments of the Central Government, but not a statutory body like the ESIC. The text of the DACP Scheme makes it clear that the Office Memorandum applies to employees of the Ministry of Health, subject to an appropriate amendment in the recruitment rules. Thus, the DACP Scheme does not override or supersede statutory regulations made under the ESI Act; (iv) Section 17(2) permits the ESIC to depart from the conditions of service applicable to employees of the Central Government, subject to prior approval of the Central Government. Section 97(3) empowers the ESIC to frame regulations that are deemed to have the same effect as statutory provisions; (v) The contesting respondents joined the ESIC Medical College and PGIMSR, Rajajinagar, Bengaluru as Assistant Professors on different dates between 7 February 2014 and 26 June 2016. These Respondents were governed by the (vi) The High Court incorrectly held that the conditions for promotion from Assistant Professor to Associate Professor were governed by the DACP Scheme on the ground that the ESIC Recruitment Regulations 2015 were inapplicable to the contesting respondents. The ESIC Recruitment Regulations 2008 were gazetted on 2 May 2009 and stipulated four years of qualifying service for promotion from Assistant Professor to Associate Professor. Therefore, none of the contesting respondents would have completed four years of service before the ESIC Recruitment Regulations 2015 came into effect, i.e. on 3 July 2015; (vii) Under the ESIC Recruitment Regulations 2008, the contesting respondents became eligible for promotion after the ESIC Recruitment Regulations 2015 came into effect. Thus, the operation of ESIC Regulations 2015 in regard to their service conditions cannot be ignored and there can be no estoppel against legislative action. This Court, in C Sankarnarayanan v. State of Kerala 8 , has held that there is no estoppel against legislative action (viii) It is settled law that in the event of an inconsistency or conflict between a statutory provision and an executive instruction, the former must be given effect. This Court in Union of India v. Ashok Kumar Aggarwal9 has held that government-issued memorandums or executive instructions can be used only to supplement the statutory rules but not to supplant them; (ix) The appellant’s counsel mistakenly made a concession before the CAT when they stated that the ESIC Recruitment Regulations 2015 would not govern the matter. However, this incorrect concession does not amount to estoppel against statutory regulation. This has been held by this Court in State of Uttar Pradesh v. U.P. Rajya Khanij Vikas Nigam Sangharsh Samiti 10; (x) The High Court has incorrectly recorded that the ESIC Recruitment Regulations 2015 were issued without approval from the Central Government. The preamble to the ESIC Recruitment Regulations 2015 explicitly states that the regulations were made after approval of the Central Government; (xi) The submission of the contesting respondents that the advertisement issued by the appellant contemplated the application of the DACP Scheme, is irrelevant to the adjudication of the matter. It is settled law that if an advertisement is inconsistent with recruitment rules, the rules would prevail, as held by this Court in Malik Mazhar Sultan v. UPSC 11, Ashish Kumar v. State of UP 12 and Raminder Singh v. State of Punjab 13; (xii) The applicability of the DACP to non-teaching staff of the ESIC is irrelevant since the ESIC Recruitment Regulations 2015 specifically govern “Medical (xiii) Except in three cases, the contesting respondents have been granted promotions upon completion of five years of regular service, in accordance with the ESIC Recruitment Regulations 2015. 7 Mr Yatindra Singh, Senior Counsel and Mr Anand Sanjay M Nuli, appearing on behalf of the contesting respondents, Respondent 3 to 25, has urged the (i) The Office Memorandum dated 29 August 2008 extended the DACP Scheme to all Medical doctors, whether belonging to Organized Services, or holding isolated posts. It also directed all Ministries/Departments to implement the DACP Scheme. By another Office Memorandum dated 29 October 2008, the Government of India extended the DACP Scheme to various sub-cadres of the Central Health Service, including the teaching cadre. Under Section 17(2)(a) of the ESI Act, the DACP Scheme is binding (ii) The ESIC Recruitment Regulations 2008, which stipulate four years of qualifying service for promotion from Assistant Professor to Associate Professor, were issued without the approval of the Central Government; (iii) The appellant has issued advertisements on 19 August 2011, 12 December 2012 and once in 2013 for the post of Assistant Professor by stating “Promotional avenues in the Department are available under DACP guidelines of Govt. of India”. The contesting respondents joined the services of the appellant as Assistant Professors in Pay Band-3 with a grade pay of Rs. 6600/- pursuant to various recruitment advertisements of (iv) On 23 September 2011, the appellant addressed a letter to the Dean of ESIC Dental College by stating that “the existing recruitment regulations are under active process of revision vis-à-vis provisions of the DACP (v) The ESIC Recruitment Regulations 2015 were issued without obtaining prior approval from the Central Government, as contemplated under (vi) After the contesting respondents instituted an application before the CAT, the Assistant Director (Med), CSIC, Headquarter Office addressed a letter to the Medical Superintendent of the ESIC Model Hospital, Rajaji Nagar, Bangalore on 26 December 2017 stating that “a proposal for considering promotion under DACP Scheme…. is under process”; (vii) The appellant admitted before the CAT and even in its writ petition before the High Court that the DACP Scheme is applicable to its employees and that it is willing to be bound by the DACP rules. The argument that the DACP Scheme is inapplicable to the contesting respondents is being raised for the first time before this Court; (viii) The DACP Scheme has statutory force under Section 17 of the ESI Act. The DACP Scheme was made on 29 October 2008, before the enforcement of the ESIC Recruitment Regulations 2008 on 2 May 2009. Since the ESIC Recruitment Regulations 2008 were issued without approval of the Central Government mandated under Section 17(2)(a) of the ESI Act, they do not override the DACP Scheme; (ix) The ESIC Recruitment Regulations 2015 were also issued without the “prior approval” mandated under Section 17(2)(a) of the ESI Act. The appellant has not furthered any evidence to indicate that prior approval was taken and this has been noted by the High Court; (x) The appellant is estopped from denying the applicability of the DACP Scheme to the contesting respondents since they made such a representation in their recruitment advertisements. The contesting respondents have acted on such representations to quit their existing jobs. Reliance is placed on a decision of this Court in Y V Rangaiah v. J (xi) Even if the ESIC Recruitment Regulations 2015 were held to be validly issued, the contesting respondents had already completed two years of service before they came into effect, on 5 July 2015. Therefore, the contesting respondents should be considered for promotion in accordance with the DACP Scheme, in view of the decisions of this Court in State of UP v. Mukesh Narain 15 and B L Gupta v. MCD 16; (xii) All the contesting respondents had three or more years of teaching experience before they joined the appellant as Assistant Professors. The qualifying service of five years under the ESIC Recruitment Regulations 2015 should be given a reasonable interpretation and the cumulative experience of more than five years should be held sufficient for promotion; (xiii) The doctors and medical teaching staff in the Central Government are being promoted in accordance with the DACP Scheme. The arbitrary denial of the DACP Scheme to the contesting respondents’ Teaching Cadre of the appellant violates Article 14, especially when they are also discharging functions of attending to patients and performing specialised (xiv) In other legal proceedings, the appellant has taken the stance that the DACP scheme is applicable to its employees with effect from 01 March 2008 itself. 8 The rival submissions will now be analysed. 9 The crux of the dispute is about determining the applicable rules/regulations for promotion of the contesting respondents from the post of Assistant Professor to Associate Professor namely, the ESIC Recruitment Regulations 2008, the DACP Scheme or the ESIC Recruitment Regulations 2015. On 29 October 2008, the Sixth Central Pay Commission recommended the extension of the DACP Scheme to all doctors in employment of the Central Government. The recommendations were accepted by the Union Ministry of Health and Family Welfare through an Office Memorandum dated 29 October 2008 which extended the DACP Scheme to Medical and Dental Doctors in the Central Government. In continuation of the Office Memorandum, the Government of India issued another Office Memorandum dated 29 October 2008 detailing promotion under DACP in various cadres under the Ministry of Health and Welfare. The Scheme enabled promotion from the post of Assistant Professor to Associate Professor after two years of service: Promotions under the DACP Scheme No. of years of Assistant Associate Professor 2 years in Grade Professor (Grade Pay Rs. 7600 in Pay of Rs. 6600 in Associate Professor (Grade Pay 4 years in Grade Professor Rs.8700 in PB-4) Pay of Rs. 7600 in Professor Director Professor 7 years in Grade (Grade Pay (Grade Pay Rs.10000 in Pay of Rs. 8700 in 10 The controversy in the present appeal arises out of the interpretation of Section 17(2)(a) of the ESIC Act 1948 and the applicability of the Office Memorandum dated 29 October 2008 against the ESIC Recruitment Regulations 2008 and the subsequently issued ESIC Recruitment Regulations 2015. Section 17 “17. Staff.—(1) The Corporation may employ such other staff of officers and servants as may be necessary for the efficient transaction of its business, provided that the sanction of the Central Government shall be obtained for the creation of any post the maximum monthly salary of which exceeds such salary as may be prescribed by the Central Government. (2)(a) The method of recruitment, salary and allowances, discipline and other conditions of service of the members of the staff of the Corporation shall be such as may be specified in the regulations made by the Corporation in accordance with the rules and orders applicable to the officers and employees of the Central Government drawing Provided that where the Corporation is of the opinion that it is necessary to make a departure from the said rules or orders in respect of any of the matters aforesaid, it shall obtain the prior approval of the Central Government: Provided further that this sub-section shall not apply to appointment of consultants and specialists in various fields (b) In determining the corresponding scales of pay of the members of the staff under clause (a), the Corporation shall have regard to the educational qualifications, method of recruitment, duties and responsibilities of such officers and employees under the Central Government and in case of any doubt, the Corporation shall refer the matter to the Central Government whose decision thereon shall be final…….” 11 Section 97 of the ESI Act empowers the ESIC to frame regulations. The regulations are deemed to have the same effect as statutory provisions: “97. Power of Corporation to make regulations.—(1) The Corporation may, subject to the condition of previous publication, make regulations, not inconsistent with this Act and the rules made thereunder, for the administration of the affairs of the Corporation and for carrying into effect the provisions of this Act. (2) In particular and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of (xvi) the appointment of medical practitioners for the purposes of this Act, the duties of such practitioners and the form of (xxi) the method of recruitment, pay and allowances, discipline, superannuation benefits and other conditions of service of the officers and servants of the Corporation other than the [Director General and Financial Commissioner; (xxiii) any matter in respect of which regulations are required or permitted to be made by this Act. (2-A) The condition of previous publication shall not apply to any regulations of the nature specified in clause (xxi) of sub-section (3) Regulations made by the Corporation shall be published in the Gazette of India and thereupon shall have effect as if enacted in this Act. (4) Every regulation shall, as soon as may be, after it is made by the Corporation, be forwarded to the Central Government and that Government shall cause a copy of the same to be laid before each House of Parliament, while it is in session for a total period of thirty days, which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the regulation or both Houses agree that the regulation should not be made, the regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be, so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that regulation.” 12 The ESIC Recruitment Regulations 2008 were issued by the ESIC in the exercise of its powers under Section 97(1) and Section 17(3) of the ESI Act. These regulations introduced the cadre of Specialist (Teaching) in the ESIC and governed all appointments to the teaching faculty posts in ESIC Medical Colleges. The ESIC Recruitment Regulations 2008 embodied a requirement of four years’ service as Assistant Professor for promotion as an Associate Professor. The ESIC Recruitment Regulations 2015 which were made on 5 July 2015 stipulated a requirement of five years’ service as Assistant Professor for promotion to the post of Associate Professor. The preamble of the ESIC Recruitment Regulations 2015 notes that these regulations were to supersede the ESIC Recruitment Regulations 2008 and were made with the approval of the Central Government: “….ln exercise of the powers conferred by sub-section (1) of Section 97, read with clause(xxi) of sub-section (2) and sub- section (2A) of the said section and sub-section (3) of section 17 of the Employees' State Insurance Act, 1948 (34 of 1948) and in supersession of the Employees State Insurance Corporation (Medical Teaching Faculty posts) Recruitment Regulations, 2008 published in the Gazette of India vide No.A-12(11 )11/2008-Med.- IV dated the 2nd May, 2009, except as respects things done or omitted to be done before such supersession, the Employees' State Insurance Corporation hereby makes, with the approval of the Central Government, the following regulations for regulating the method of recruitment to the medical teaching faculty posts in the Employees' State Insurance Corporation's medical colleges, namely:- …” 13 The ESIC Recruitment Regulations 2008 and ESIC Recruitment Regulations 2015 have statutory effect by virtue of Section 97(3) of the ESI Act. It is settled law that regulations framed by statutory authorities have the force of enacted law. A Constitution Bench in Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi17 considered the regulations framed by several statutory authorities considered as “State” within the terms of Article 12. Chief Justice A N Ray held that the regulations have the same effect of law and bind the statutory authorities: “21. The characteristic of law is the manner and procedure adopted in many forms of subordinate legislation. The authority making rules and regulation must specify the source of the rule and regulation making authority. To illustrate, rules are always framed in exercise of the specific power conferred by the statute to make rules. Similarly, regulations are framed in exercise of specific power conferred by the statute to make regulations. The essence of law is that it is made by the law-makers in exercise of specific authority. The vires of law is capable of being challenged if the power is absent or has been exceeded by the authority making rules or regulations. 23. The noticeable feature is that these statutory bodies have no free hand in framing the conditions and terms of service of their employees. These statutory bodies are bound to apply the terms and conditions as laid down in the regulations. The statutory bodies are not free to make such terms as they think fit and proper. Regulations prescribe the terms of appointment, conditions of service and procedure for dismissing employees. These regulations in the statutes are described as “status fetters on freedom of contract”. The Oil and Natural Gas Commission Act in Section 12 specifically enacts that the terms and conditions of the employees may be such as may be provided by regulations. There is a legal compulsion on the Commission to comply with the regulations. Any breach of such compliance would be a breach of the regulations which are statutory provisions. In other statutes under consideration viz. the Life Insurance Corporation Act and the Industrial Finance Corporation Act though there is no specific provision comparable to Section 12 of the 1959 Act the terms and conditions of employment and conditions of service are provided for by regulations. These regulations are not only binding on the authorities but also on the public.” 14 A two-judge Bench of this Court in Pepsu Road Transport Corporation, Patiala v. Mangal Singh and Others 18 interpreted a similar power to frame regulations under the Road Transport Corporations Act 1950. This Court held that regulations made under the statute have the force of law: “29. It is well-settled law that the regulations made under the statute laying down the terms and conditions of service of the employees, including the grant of retirement benefits, have the force of law. The regulations validly made under the statutory powers are binding and effective as the enactment of the competent legislature. The statutory bodies as well as general public are bound to comply with the terms and conditions laid down in the regulations as a legal compulsion. Any action or order in breach of the terms and conditions of the regulations shall amount to violation of the regulations which are in the nature of statutory provisions and shall render such action or order illegal and invalid.” 15 Respondent 3 to 25 joined the service of the ESIC Model Hospital, Rajajinagar, Bengaluru as Assistant Professors on different dates, between 07 February 2014 and 26 June 2016. On completing two years in the post of Assistant Professor, Respondent 3 to 25 made representations to the appellant seeking promotion to the grade of Associate Professor, claiming the benefit of the DACP Scheme. The Preamble to the ESIC Recruitment Regulations 2015, recites that the prior approval of the Central Government, as necessitated by Section 17(2) of the ESI Act was duly sought. In the event of a conflict between an executive instruction, an office memorandum in this case, and statutory regulations – the latter prevail. A Constitution Bench in Sant Ram Sharma v. State of Rajasthan 19 considered the applicability of the letters issued by the Government of India detailing the administrative practice for promotions, against the Indian Police Service (Regulation of Seniority) Rules, 1954. The Constitution Bench held that: 7. We proceed to consider the next contention of Mr N.C. Chatterjee that in the absence of any statutory rules governing promotions to selection grade posts the Government cannot issue administrative instructions and such administrative instructions cannot impose any restrictions not found in the Rules already framed. We are unable to accept this argument as correct. It is true that there is no specific provision in the Rules laying down the principle of promotion of junior or senior grade officers to selection grade posts. But that does not mean that till statutory rules are framed in this behalf the Government cannot issue administrative instructions regarding the principle to be followed in promotions of the officers concerned to selection grade posts. It is true that Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed.” 16 In Union of India v. Ashok Kumar Aggarwal 20 a two judge Bench of this Court speaking in the context of service regulations governing a departmental enquiry re-iterated that an office order or office memorandum cannot contravene statutory rules. Justice B S Chauhan noted the position in law in the following terms: “59. The law laid down above has consistently been followed and it is a settled proposition of law that an authority cannot issue orders/office memorandum/executive instructions in contravention of the statutory rules. However, instructions can be issued only to supplement the statutory rules but not to supplant it. Such instructions should be subservient to the statutory provisions. (Vide Union of Indiav. Majji Aggarwal v. State of U.P. [(1987) 3 SCC 622 : 1987 SCC (L&S) 310 : (1987) 4 ATC 272] , Paluru Ramkrishnaiah v. Union of 378 : AIR 1990 SC 166] , C. Rangaswamaiah v. Karnataka Lokayukta [(1998) 6 SCC 66 : 1998 SCC (L&S) 1448] and Joint Action Committee of Air Line Pilots' Assn. of India v. DG of Civil 17 In P D Aggarwal v. State of U.P.21 a two judge Bench of this Court declined to grant primacy to an Office Memorandum issued by the Government of Uttar Pradesh which purportedly amended the method of recruitment of Assistant Civil Engineers in the U.P. Public Service Commission without amending the relevant “20. The office memorandum dated December 7, 1961 which purports to amend the United Provinces Service of Engineers (Buildings and Roads Branch) Class II Rules, 1936 in our opinion cannot override, amend or supersede statutory rules. This memorandum is nothing but an administrative order or instruction and as such it cannot amend or supersede the statutory rules by adding something therein as has been observed by this Court in Sant Ram Sharma v. State of Rajasthan [AIR 1967 SC 1910 : (1968) 1 SCR 111 : (1968) 2 LLJ 830] . Moreover the benefits that have been conferred on the temporary Assistant Engineers who have become members of the service after being selected by the Public Service Commission in accordance with the service rules are entitled to have their seniority reckoned in accordance with the provisions of Rule 23 as it was then, from the date of their becoming member of the service, and this cannot be taken away by giving retrospective effect to the rules of 1969 and 1971 as it is arbitrary, irrational and not reasonable.” 18 The contesting respondents have referred to certain letters and to an internal communication of the appellant to urge that the DACP Scheme was to be implemented for promotions at the appellant. However, these letters, similar to the Office Memorandum dated 29 October 2008 implementing the DACP Scheme, would not have the force of law until they were enforced through an amendment to the recruitment regulations. In considering a similar factual situation, a three-judge Bench of this Court in Union of India v. Majji Jangamayya 22 held that: “31. The second question is whether the requirement of 10 years' experience was a statutory rule. The High Court held that the requirement of 10 years' experience is not a statutory rule. Counsel for the respondents contended that the requirement of 10 years' experience is statutory because the letter dated January 16, 1950 is by the Government of India and the Government of India has authority to frame rules and one of the letters dated July 21, 1950 referred to it as a formal rule. The contention is erroneous because there is a distinction between statutory orders and administrative instructions of the Government. This Court has held that in the absence of statutory rules, executive orders or administrative instructions may be made. (See CIT v. A. Raman & 34. Counsel on behalf of the respondents contended that the requirement of 10 years' experience laid down in the letter dated January 16, 1950 had the force of law because of Article 313. Article 313 does not change the legal character of a document. Article 313 refers to laws in force which mean statutory laws. An administrative instruction or order is not a statutory rule. The administrative instructions can be changed by the Government by reason of Article 73(1)(a) itself. 36. The expression “ordinarily” in the requirement of 10 years' experience shows that there can be a deviation from the requirement and such deviation can be justified by reasons. Administrative instructions if not carried into effect for good reasons cannot confer a right. (See P.C. Sethi v. Union of 19 On the dates when the contesting respondents joined the service of the appellant - 07 February 2014 till 26 June 2016 - their promotions were governed by the ESIC Recruitment Regulations 2008 which came into effect on 2 May 2009 and mandated four years of qualifying service for promotion from Assistant Professor to Associate Professor. When the contesting respondents had completed two years of service, they were governed by the ESIC Recruitment Regulations 2015 which came into effect on 5 July 2015 and mandated five years of qualifying service for promotion from Assistant Professor to Associate Professor. Thus, the DACP Scheme facilitating promotion on the completion of two years of service is not applicable to the contesting respondents, when the regulations have a statutory effect that overrides the Office Memorandum dated 29 October 2008 which implemented the DACP Scheme. 20 The advertisements issued by the appellant mentioned that the DACP Scheme would be applicable for its recruits. However, it is a settled principle of service jurisprudence that in the event of a conflict between a statement in an advertisement and service regulations, the latter shall prevail. In Malik Mazhar Sultan v. U.P. Public Service Commission 23 a two-judge Bench of this Court clarified that an erroneous advertisement would not create a right in favour of applicants who act on such representation. The Court considered the eligibility criteria for the post of Civil Judge (Junior Division) under the U.P. Judicial Service Rules, 2001 against an erroneous advertisement issued by the U.P. Public Service “21. The present controversy has arisen as the advertisement issued by PSC stated that the candidates who were within the age on 1-7-2001 and 1-7-2002 shall be treated within age for the examination. Undoubtedly, the excluded candidates were of eligible age as per the advertisement but the recruitment to the service can only be made in accordance with the Rules and the error, if any, in the advertisement cannot override the Rules and create a right in favour of a candidate if otherwise not eligible according to the Rules. The relaxation of age can be granted only if permissible under the Rules and not on the basis of the advertisement. If the interpretation of the Rules by PSC when it issued the advertisement was erroneous, no right can accrue on basis thereof. Therefore, the answer to the question would turn upon the interpretation of the Rules.” 21 In Ashish Kumar v. State of Uttar Pradesh 24 a two-judge Bench of this Court followed the decision in Malik Mazhar Sultan (supra) in interpreting an advertisement issued by the Director, Social Welfare Department, Uttar Pradesh for the position of a psychologist. This Court declined to give precedence to the erroneous qualifications prescribed in the advertisement against the relevant “27. Any part of the advertisement which is contrary to the statutory rules has to give way to the statutory prescription. Thus, looking to the qualification prescribed in the statutory rules, the appellant fulfils the qualification and after being selected for the post denying appointment to him is arbitrary and illegal. It is well settled that when there is variance in the advertisement and in the statutory rules, it is the statutory rules which take precedence….” 22 The contesting respondents urged that the advertisements indicated the applicability of the DACP Scheme before the ESIC Recruitment Regulations 2015 were issued. However, a subsequent amendment to recruitment regulations would override the conditions prescribed in the advertisement. In Rajasthan Public Service Commission v. Chanan Ram 25 a two-judge Bench of this Court held that an earlier advertisement becomes infructuous after a subsequent amendment to the “13. Under these circumstances, therefore, it is difficult to appreciate how the Division Bench of the High Court could persuade itself in agreeing with the submission of the learned counsel for the respondent-writ petitioner that despite this change of cadres and the provision for recruitment on new posts the old advertisement of 5-11-1993 Annexure P-1 seeking to consider the candidature of applicants for erstwhile 23 advertised vacancies in the posts of Assistant Directors (Junior) in the Agricultural Marketing Service of the State of Rajasthan would still be pursued further and recruitment should be effected for these 23 erstwhile vacancies as per the old advertisement. It is easy to visualise that even if such an earlier advertisement of 5- 11-1993 was proceeded with further it would have resulted into a stalemate and an exercise in futility. No appointment could have been given to the selected candidates to the posts of Assistant Directors (Junior) after 1995 amendment of Rules as there were no such posts in the hierarchy of State Service. Consequently it must be held that on account of the amendments to the Rajasthan Agricultural Marketing Service Rules the earlier advertisement dated 5-11-1993 had become infructuous and otiose. Only on this short ground the writ petition of the respondent-writ petitioner should have been dismissed by confirming the order of dismissal of the writ petition earlier passed by the learned Single Judge…….” 23 The contesting respondents submitted that the appellant is estopped from urging that the DACP Scheme is not applicable to the Teaching Cadre at the ESIC since they have taken this stance before the CAT and in its writ petition before the High Court. While this Court expresses its disapproval at the lack of proper instructions being tendered to the Counsel of the appellant, there can be no estoppel against a statute or regulations having a statutory effect. In Nedunuri Kameswaramma v. Sampati Subba Rao 26 a three-judge Bench of this Court decided a central point of the dispute in favour of a party, irrespective of the concession of its Counsel since it was on a point of law. Justice M Hidayatullah (as the learned Chief Justice then was), speaking on behalf of the Court observed: “20. From the above analysis of the documents, it is quite clear that the documents on the side of the appellant established that this was a Karnikam service inam, and the action of the Zamindar in resuming it as such, which again has a presumption of correctness attaching to it, clearly established the appellant's case. Much cannot be made of a concession by counsel that this was a Dharmilainam, in the trial court, because it was a concession on a point of law, and it was withdrawn. Indeed, the central point in the dispute was this, and the concession appears to us to be due to some mistake or possibly ignorance not binding on the client. We are thus of opinion that the decision of the two courts below which had concurrently held this to be jeroyti land after resumption of the Karnikam service inam, was correct in the circumstances of the case, and the High Court was not justified in reversing it.” 24 In Himalayan Coop. Group Housing Society v. Balwan Singh 27 a three- judge Bench of this Court clarified the law of agency with respect to client-lawyer relationships. The Court held that while generally admissions of fact by counsel are binding, neither the client nor the court is bound by admissions as to matters of law “32. Generally, admissions of fact made by a counsel are binding upon their principals as long as they are unequivocal; where, however, doubt exists as to a purported admission, the court should be wary to accept such admissions until and unless the counsel or the advocate is authorised by his principal to make such admissions. Furthermore, a client is not bound by a statement or admission which he or his lawyer was not authorised to make. A lawyer generally has no implied or apparent authority to make an admission or statement which would directly surrender or conclude the substantial legal rights of the client unless such an admission or statement is clearly a proper step in accomplishing the purpose for which the lawyer was employed. We hasten to add neither the client nor the court is bound by the lawyer's statements or admissions as to matters of law or legal conclusions. Thus, according to generally accepted notions of professional responsibility, lawyers should follow the client's instructions rather than substitute their judgment for that of the client. We may add that in some cases, lawyers can make decisions without consulting the client. While in others, the decision is reserved for the client. It is often said that the lawyer can make decisions as to tactics without consulting the client, while the client has a right to make decisions that can affect his rights.” 25 Recently, a two-judge Bench of this Court in Director of Elementary Education, Odisha v. Pramod Kumar Sahoo 28 observed that a concession on a question of law concerning service rules would not bind the State: “11. The concession given by the learned State Counsel before the Tribunal was a concession in law and contrary to the statutory rules. Such concession is not binding on the State for the reason that there cannot be any estoppel against law. The rules provide for a specific grade of pay, therefore, the concession given by the learned State Counsel before the Tribunal is not binding on the appellant.” The concession of the Counsel for the appellant before the CAT does not preclude the finding on the law that is arrived at by this Court. 26 The CAT and the High Court failed to notice the applicability of the ESIC Recruitment Regulations 2015 to the promotions of the Teaching Cadre in the appellant corporation. The ESIC Recruitment Regulations 2015 have precedence over the Office Memorandum dated 29 October 2008 which implemented the DACP Scheme in respect of officers of the Central Health Service under the Union Ministry of Health and Family Welfare. The concession by the Counsel of the appellant before the CAT does not stand in the way of the appellant supporting the correct position of law before this Court. 27 The contesting respondents did not challenge the ESIC Recruitment Regulations 2008 or the ESIC Recruitment Regulations 2015 before the CAT or the High Court. The argument on lack of prior approval as per Section 17(2) of the ESI Act is obviated by the preamble to the ESIC Recruitment Regulations 2015. The contesting respondents have only supported the applicability of the DACP Scheme to claim promotion as Associate Professor after two years of service. The advertisements for recruitment mentioning the DACP Scheme would have no effect since they were in contravention of the applicable recruitment regulations. Therefore, for the above reasons, we are of the view that the appeal should be 28 The appeal is accordingly allowed and the impugned judgement and order of the Division Bench of the Karnataka High Court dated 5 September 2019 is set aside. As a consequence, the revised seniority list of the Teaching Cadre at the appellant corporation should reflect the promotions of the contesting respondents in accordance with the ESIC Recruitment Regulations 2015 and not the DACP 29 The appeal is disposed of in the above terms. 30 Pending application(s), if any, shall stand disposed of.
The Supreme Court repeated an important rule. It said that statements lawyers make about legal rules or their meaning do not bind their clients or the court itself. While lawyers' admissions about facts usually must be accepted, no one has to agree with a lawyer's claims about the law. Justices DY Chandrachud and AS Bopanna made this point in a case. The case was about a specific promotion plan, called DACP, which seemed to go against the official hiring rules of ESIC. This case started because some Assistant Professors at an ESIC hospital wanted promotions. They had joined between 2012 and 2014. Their argument was that a government plan from 2008 meant they should become Associate Professors after two years. So, in 2017, after two years of service, they asked a special court, the Central Administrative Tribunal (CAT), for these promotions. The CAT agreed. It said the hospital's new ESIC regulations did not apply. The CAT told the hospital (ESIC) to consider the professors for promotion under the DACP plan. The hospital then challenged this decision in the High Court of Karnataka. But the High Court also dismissed their challenge. It ruled that since the hospital's 2015 hiring rules began *after* the professors were hired, the professors should get the promotion benefits from the DACP plan. The High Court also ruled that... When the case reached the Supreme Court, the professors argued something else. They said the hospital could not now claim the DACP plan did not apply to teachers. They pointed out that the hospital had already taken the opposite view in the CAT and High Court. The Supreme Court was not pleased that the hospital's lawyers might have received poor instructions. However, it added that a previous argument cannot overrule a law or official regulation. The Court referred to an earlier case, *Himalayan Coop. Group Housing Society v. Balwan Singh*. In that case, the court said a lawyer usually cannot make a statement that directly gives up a client's main legal rights. This is unless such a statement is clearly part of the lawyer's job. The Court then repeated: neither the client nor the court is bound by a lawyer's statements or agreements about legal rules or conclusions. The court also mentioned another judgment, *Director of Elementary Education, Odisha v. Pramod Kumar Sahoo*. Therefore, the Supreme Court decided that what the hospital's lawyer agreed to in the CAT court did not stop the Supreme Court from deciding what the law truly means.
2 The Employees’ State Insurance Corporation 1 is in appeal against a judgment of a Division Bench of the Karnataka High Court dated 5 September 2019. The Division Bench rejected the petition filed by the appellant against the promotion of the contesting respondents - Respondent 3 to 25, to the post of “Associate Professor” under the Dynamic Assured Career Progression 2 Scheme as opposed to the appellant’s recruitment regulations. 3 ESIC, the appellant, is a statutory body constituted under the Employees’ State Insurance Act 1948 3. The recruitment and promotion of its teaching staff are governed by the Employees’ State Insurance Corporation (Medical Teaching Faculty Posts) Recruitment Regulations 2015 4 which came into effect on 5 July 2015. Respondent 3 to 25 5 joined the appellant as Assistant Professors at ESIC Model Hospital, Rajajinagar, Bengaluru. They joined service between 7 February 2012 and 26 June 2014. The Central Government, through the Central Health Service Division of the Ministry of Health and Family Welfare, had issued the DACP Scheme through an Office Memorandum dated 29 October 2008. The DACP Scheme contemplated promotion as Associate Professor upon completion of two years of service in the post of Assistant Professor as an officer under the Ministry of Health and Family “ESIC” (interchangeably referred to as the appellant) interchangeably referred to as “contesting respondents” Welfare. After two years of service as Assistant Professor on 2 February 2017, the contesting respondents sought promotion under the DACP Scheme and instituted proceedings before the Central Administrative Tribunal 6, Bengaluru. 4 On 7 February 2018, the CAT relied on the submission by the Counsel for the appellant and held that the ESIC Recruitment Regulations 2015 were not relevant for adjudication of the matter. The CAT also relied on a letter dated 23 September 2014 addressed by the Joint Director of ESIC to the Dean of ESIC which mentioned the implementation of the DACP Scheme to the Medical Officer Cadres. Thus, the CAT directed the appellant to consider the contesting respondents for promotion under the DACP Scheme. 5 The appellant challenged the order of the CAT in a writ petition before the High Court of Karnataka. The High Court dismissed the petition on 5 September (i) Since the contesting respondents were recruited before the ESIC Recruitment Regulations 2015 came into effect, they would get the (ii) The DACP Scheme has statutory effect under Section 17 of the ESI Act. The ESIC Recruitment Regulations 2015 have departed from the DACP Scheme without seeking the prior approval of the Central Government; (iii) Counsel for the appellant conceded that the appellant would implement the DACP Scheme and the ESIC Recruitment Regulations 2015 do not apply. 6 Mr Santhosh Krishnan, appearing on behalf of the appellant has urged the (i) The appellant is an autonomous statutory corporation incorporated under the ESI Act. It is within the administrative control of the Ministry of Labour and (ii) Section 97 of the ESI Act confers power on the appellant to frame its own regulations. The terms and conditions of service of Assistant Professors are governed by the ESIC Recruitment Regulations 2015. These regulations stipulate that a minimum of five years of qualifying service as Assistant Professor is mandatory for promotion as Associate Professor. The ESIC Regulations 2015 cannot be overridden by the DACP Scheme; (iii) The Office Memorandum dated 29 October 2008 implementing the DACP Scheme is applicable to employees of the Ministries and Departments of the Central Government, but not a statutory body like the ESIC. The text of the DACP Scheme makes it clear that the Office Memorandum applies to employees of the Ministry of Health, subject to an appropriate amendment in the recruitment rules. Thus, the DACP Scheme does not override or supersede statutory regulations made under the ESI Act; (iv) Section 17(2) permits the ESIC to depart from the conditions of service applicable to employees of the Central Government, subject to prior approval of the Central Government. Section 97(3) empowers the ESIC to frame regulations that are deemed to have the same effect as statutory provisions; (v) The contesting respondents joined the ESIC Medical College and PGIMSR, Rajajinagar, Bengaluru as Assistant Professors on different dates between 7 February 2014 and 26 June 2016. These Respondents were governed by the (vi) The High Court incorrectly held that the conditions for promotion from Assistant Professor to Associate Professor were governed by the DACP Scheme on the ground that the ESIC Recruitment Regulations 2015 were inapplicable to the contesting respondents. The ESIC Recruitment Regulations 2008 were gazetted on 2 May 2009 and stipulated four years of qualifying service for promotion from Assistant Professor to Associate Professor. Therefore, none of the contesting respondents would have completed four years of service before the ESIC Recruitment Regulations 2015 came into effect, i.e. on 3 July 2015; (vii) Under the ESIC Recruitment Regulations 2008, the contesting respondents became eligible for promotion after the ESIC Recruitment Regulations 2015 came into effect. Thus, the operation of ESIC Regulations 2015 in regard to their service conditions cannot be ignored and there can be no estoppel against legislative action. This Court, in C Sankarnarayanan v. State of Kerala 8 , has held that there is no estoppel against legislative action (viii) It is settled law that in the event of an inconsistency or conflict between a statutory provision and an executive instruction, the former must be given effect. This Court in Union of India v. Ashok Kumar Aggarwal9 has held that government-issued memorandums or executive instructions can be used only to supplement the statutory rules but not to supplant them; (ix) The appellant’s counsel mistakenly made a concession before the CAT when they stated that the ESIC Recruitment Regulations 2015 would not govern the matter. However, this incorrect concession does not amount to estoppel against statutory regulation. This has been held by this Court in State of Uttar Pradesh v. U.P. Rajya Khanij Vikas Nigam Sangharsh Samiti 10; (x) The High Court has incorrectly recorded that the ESIC Recruitment Regulations 2015 were issued without approval from the Central Government. The preamble to the ESIC Recruitment Regulations 2015 explicitly states that the regulations were made after approval of the Central Government; (xi) The submission of the contesting respondents that the advertisement issued by the appellant contemplated the application of the DACP Scheme, is irrelevant to the adjudication of the matter. It is settled law that if an advertisement is inconsistent with recruitment rules, the rules would prevail, as held by this Court in Malik Mazhar Sultan v. UPSC 11, Ashish Kumar v. State of UP 12 and Raminder Singh v. State of Punjab 13; (xii) The applicability of the DACP to non-teaching staff of the ESIC is irrelevant since the ESIC Recruitment Regulations 2015 specifically govern “Medical (xiii) Except in three cases, the contesting respondents have been granted promotions upon completion of five years of regular service, in accordance with the ESIC Recruitment Regulations 2015. 7 Mr Yatindra Singh, Senior Counsel and Mr Anand Sanjay M Nuli, appearing on behalf of the contesting respondents, Respondent 3 to 25, has urged the (i) The Office Memorandum dated 29 August 2008 extended the DACP Scheme to all Medical doctors, whether belonging to Organized Services, or holding isolated posts. It also directed all Ministries/Departments to implement the DACP Scheme. By another Office Memorandum dated 29 October 2008, the Government of India extended the DACP Scheme to various sub-cadres of the Central Health Service, including the teaching cadre. Under Section 17(2)(a) of the ESI Act, the DACP Scheme is binding (ii) The ESIC Recruitment Regulations 2008, which stipulate four years of qualifying service for promotion from Assistant Professor to Associate Professor, were issued without the approval of the Central Government; (iii) The appellant has issued advertisements on 19 August 2011, 12 December 2012 and once in 2013 for the post of Assistant Professor by stating “Promotional avenues in the Department are available under DACP guidelines of Govt. of India”. The contesting respondents joined the services of the appellant as Assistant Professors in Pay Band-3 with a grade pay of Rs. 6600/- pursuant to various recruitment advertisements of (iv) On 23 September 2011, the appellant addressed a letter to the Dean of ESIC Dental College by stating that “the existing recruitment regulations are under active process of revision vis-à-vis provisions of the DACP (v) The ESIC Recruitment Regulations 2015 were issued without obtaining prior approval from the Central Government, as contemplated under (vi) After the contesting respondents instituted an application before the CAT, the Assistant Director (Med), CSIC, Headquarter Office addressed a letter to the Medical Superintendent of the ESIC Model Hospital, Rajaji Nagar, Bangalore on 26 December 2017 stating that “a proposal for considering promotion under DACP Scheme…. is under process”; (vii) The appellant admitted before the CAT and even in its writ petition before the High Court that the DACP Scheme is applicable to its employees and that it is willing to be bound by the DACP rules. The argument that the DACP Scheme is inapplicable to the contesting respondents is being raised for the first time before this Court; (viii) The DACP Scheme has statutory force under Section 17 of the ESI Act. The DACP Scheme was made on 29 October 2008, before the enforcement of the ESIC Recruitment Regulations 2008 on 2 May 2009. Since the ESIC Recruitment Regulations 2008 were issued without approval of the Central Government mandated under Section 17(2)(a) of the ESI Act, they do not override the DACP Scheme; (ix) The ESIC Recruitment Regulations 2015 were also issued without the “prior approval” mandated under Section 17(2)(a) of the ESI Act. The appellant has not furthered any evidence to indicate that prior approval was taken and this has been noted by the High Court; (x) The appellant is estopped from denying the applicability of the DACP Scheme to the contesting respondents since they made such a representation in their recruitment advertisements. The contesting respondents have acted on such representations to quit their existing jobs. Reliance is placed on a decision of this Court in Y V Rangaiah v. J (xi) Even if the ESIC Recruitment Regulations 2015 were held to be validly issued, the contesting respondents had already completed two years of service before they came into effect, on 5 July 2015. Therefore, the contesting respondents should be considered for promotion in accordance with the DACP Scheme, in view of the decisions of this Court in State of UP v. Mukesh Narain 15 and B L Gupta v. MCD 16; (xii) All the contesting respondents had three or more years of teaching experience before they joined the appellant as Assistant Professors. The qualifying service of five years under the ESIC Recruitment Regulations 2015 should be given a reasonable interpretation and the cumulative experience of more than five years should be held sufficient for promotion; (xiii) The doctors and medical teaching staff in the Central Government are being promoted in accordance with the DACP Scheme. The arbitrary denial of the DACP Scheme to the contesting respondents’ Teaching Cadre of the appellant violates Article 14, especially when they are also discharging functions of attending to patients and performing specialised (xiv) In other legal proceedings, the appellant has taken the stance that the DACP scheme is applicable to its employees with effect from 01 March 2008 itself. 8 The rival submissions will now be analysed. 9 The crux of the dispute is about determining the applicable rules/regulations for promotion of the contesting respondents from the post of Assistant Professor to Associate Professor namely, the ESIC Recruitment Regulations 2008, the DACP Scheme or the ESIC Recruitment Regulations 2015. On 29 October 2008, the Sixth Central Pay Commission recommended the extension of the DACP Scheme to all doctors in employment of the Central Government. The recommendations were accepted by the Union Ministry of Health and Family Welfare through an Office Memorandum dated 29 October 2008 which extended the DACP Scheme to Medical and Dental Doctors in the Central Government. In continuation of the Office Memorandum, the Government of India issued another Office Memorandum dated 29 October 2008 detailing promotion under DACP in various cadres under the Ministry of Health and Welfare. The Scheme enabled promotion from the post of Assistant Professor to Associate Professor after two years of service: Promotions under the DACP Scheme No. of years of Assistant Associate Professor 2 years in Grade Professor (Grade Pay Rs. 7600 in Pay of Rs. 6600 in Associate Professor (Grade Pay 4 years in Grade Professor Rs.8700 in PB-4) Pay of Rs. 7600 in Professor Director Professor 7 years in Grade (Grade Pay (Grade Pay Rs.10000 in Pay of Rs. 8700 in 10 The controversy in the present appeal arises out of the interpretation of Section 17(2)(a) of the ESIC Act 1948 and the applicability of the Office Memorandum dated 29 October 2008 against the ESIC Recruitment Regulations 2008 and the subsequently issued ESIC Recruitment Regulations 2015. Section 17 “17. Staff.—(1) The Corporation may employ such other staff of officers and servants as may be necessary for the efficient transaction of its business, provided that the sanction of the Central Government shall be obtained for the creation of any post the maximum monthly salary of which exceeds such salary as may be prescribed by the Central Government. (2)(a) The method of recruitment, salary and allowances, discipline and other conditions of service of the members of the staff of the Corporation shall be such as may be specified in the regulations made by the Corporation in accordance with the rules and orders applicable to the officers and employees of the Central Government drawing Provided that where the Corporation is of the opinion that it is necessary to make a departure from the said rules or orders in respect of any of the matters aforesaid, it shall obtain the prior approval of the Central Government: Provided further that this sub-section shall not apply to appointment of consultants and specialists in various fields (b) In determining the corresponding scales of pay of the members of the staff under clause (a), the Corporation shall have regard to the educational qualifications, method of recruitment, duties and responsibilities of such officers and employees under the Central Government and in case of any doubt, the Corporation shall refer the matter to the Central Government whose decision thereon shall be final…….” 11 Section 97 of the ESI Act empowers the ESIC to frame regulations. The regulations are deemed to have the same effect as statutory provisions: “97. Power of Corporation to make regulations.—(1) The Corporation may, subject to the condition of previous publication, make regulations, not inconsistent with this Act and the rules made thereunder, for the administration of the affairs of the Corporation and for carrying into effect the provisions of this Act. (2) In particular and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of (xvi) the appointment of medical practitioners for the purposes of this Act, the duties of such practitioners and the form of (xxi) the method of recruitment, pay and allowances, discipline, superannuation benefits and other conditions of service of the officers and servants of the Corporation other than the [Director General and Financial Commissioner; (xxiii) any matter in respect of which regulations are required or permitted to be made by this Act. (2-A) The condition of previous publication shall not apply to any regulations of the nature specified in clause (xxi) of sub-section (3) Regulations made by the Corporation shall be published in the Gazette of India and thereupon shall have effect as if enacted in this Act. (4) Every regulation shall, as soon as may be, after it is made by the Corporation, be forwarded to the Central Government and that Government shall cause a copy of the same to be laid before each House of Parliament, while it is in session for a total period of thirty days, which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the regulation or both Houses agree that the regulation should not be made, the regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be, so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that regulation.” 12 The ESIC Recruitment Regulations 2008 were issued by the ESIC in the exercise of its powers under Section 97(1) and Section 17(3) of the ESI Act. These regulations introduced the cadre of Specialist (Teaching) in the ESIC and governed all appointments to the teaching faculty posts in ESIC Medical Colleges. The ESIC Recruitment Regulations 2008 embodied a requirement of four years’ service as Assistant Professor for promotion as an Associate Professor. The ESIC Recruitment Regulations 2015 which were made on 5 July 2015 stipulated a requirement of five years’ service as Assistant Professor for promotion to the post of Associate Professor. The preamble of the ESIC Recruitment Regulations 2015 notes that these regulations were to supersede the ESIC Recruitment Regulations 2008 and were made with the approval of the Central Government: “….ln exercise of the powers conferred by sub-section (1) of Section 97, read with clause(xxi) of sub-section (2) and sub- section (2A) of the said section and sub-section (3) of section 17 of the Employees' State Insurance Act, 1948 (34 of 1948) and in supersession of the Employees State Insurance Corporation (Medical Teaching Faculty posts) Recruitment Regulations, 2008 published in the Gazette of India vide No.A-12(11 )11/2008-Med.- IV dated the 2nd May, 2009, except as respects things done or omitted to be done before such supersession, the Employees' State Insurance Corporation hereby makes, with the approval of the Central Government, the following regulations for regulating the method of recruitment to the medical teaching faculty posts in the Employees' State Insurance Corporation's medical colleges, namely:- …” 13 The ESIC Recruitment Regulations 2008 and ESIC Recruitment Regulations 2015 have statutory effect by virtue of Section 97(3) of the ESI Act. It is settled law that regulations framed by statutory authorities have the force of enacted law. A Constitution Bench in Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi17 considered the regulations framed by several statutory authorities considered as “State” within the terms of Article 12. Chief Justice A N Ray held that the regulations have the same effect of law and bind the statutory authorities: “21. The characteristic of law is the manner and procedure adopted in many forms of subordinate legislation. The authority making rules and regulation must specify the source of the rule and regulation making authority. To illustrate, rules are always framed in exercise of the specific power conferred by the statute to make rules. Similarly, regulations are framed in exercise of specific power conferred by the statute to make regulations. The essence of law is that it is made by the law-makers in exercise of specific authority. The vires of law is capable of being challenged if the power is absent or has been exceeded by the authority making rules or regulations. 23. The noticeable feature is that these statutory bodies have no free hand in framing the conditions and terms of service of their employees. These statutory bodies are bound to apply the terms and conditions as laid down in the regulations. The statutory bodies are not free to make such terms as they think fit and proper. Regulations prescribe the terms of appointment, conditions of service and procedure for dismissing employees. These regulations in the statutes are described as “status fetters on freedom of contract”. The Oil and Natural Gas Commission Act in Section 12 specifically enacts that the terms and conditions of the employees may be such as may be provided by regulations. There is a legal compulsion on the Commission to comply with the regulations. Any breach of such compliance would be a breach of the regulations which are statutory provisions. In other statutes under consideration viz. the Life Insurance Corporation Act and the Industrial Finance Corporation Act though there is no specific provision comparable to Section 12 of the 1959 Act the terms and conditions of employment and conditions of service are provided for by regulations. These regulations are not only binding on the authorities but also on the public.” 14 A two-judge Bench of this Court in Pepsu Road Transport Corporation, Patiala v. Mangal Singh and Others 18 interpreted a similar power to frame regulations under the Road Transport Corporations Act 1950. This Court held that regulations made under the statute have the force of law: “29. It is well-settled law that the regulations made under the statute laying down the terms and conditions of service of the employees, including the grant of retirement benefits, have the force of law. The regulations validly made under the statutory powers are binding and effective as the enactment of the competent legislature. The statutory bodies as well as general public are bound to comply with the terms and conditions laid down in the regulations as a legal compulsion. Any action or order in breach of the terms and conditions of the regulations shall amount to violation of the regulations which are in the nature of statutory provisions and shall render such action or order illegal and invalid.” 15 Respondent 3 to 25 joined the service of the ESIC Model Hospital, Rajajinagar, Bengaluru as Assistant Professors on different dates, between 07 February 2014 and 26 June 2016. On completing two years in the post of Assistant Professor, Respondent 3 to 25 made representations to the appellant seeking promotion to the grade of Associate Professor, claiming the benefit of the DACP Scheme. The Preamble to the ESIC Recruitment Regulations 2015, recites that the prior approval of the Central Government, as necessitated by Section 17(2) of the ESI Act was duly sought. In the event of a conflict between an executive instruction, an office memorandum in this case, and statutory regulations – the latter prevail. A Constitution Bench in Sant Ram Sharma v. State of Rajasthan 19 considered the applicability of the letters issued by the Government of India detailing the administrative practice for promotions, against the Indian Police Service (Regulation of Seniority) Rules, 1954. The Constitution Bench held that: 7. We proceed to consider the next contention of Mr N.C. Chatterjee that in the absence of any statutory rules governing promotions to selection grade posts the Government cannot issue administrative instructions and such administrative instructions cannot impose any restrictions not found in the Rules already framed. We are unable to accept this argument as correct. It is true that there is no specific provision in the Rules laying down the principle of promotion of junior or senior grade officers to selection grade posts. But that does not mean that till statutory rules are framed in this behalf the Government cannot issue administrative instructions regarding the principle to be followed in promotions of the officers concerned to selection grade posts. It is true that Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed.” 16 In Union of India v. Ashok Kumar Aggarwal 20 a two judge Bench of this Court speaking in the context of service regulations governing a departmental enquiry re-iterated that an office order or office memorandum cannot contravene statutory rules. Justice B S Chauhan noted the position in law in the following terms: “59. The law laid down above has consistently been followed and it is a settled proposition of law that an authority cannot issue orders/office memorandum/executive instructions in contravention of the statutory rules. However, instructions can be issued only to supplement the statutory rules but not to supplant it. Such instructions should be subservient to the statutory provisions. (Vide Union of Indiav. Majji Aggarwal v. State of U.P. [(1987) 3 SCC 622 : 1987 SCC (L&S) 310 : (1987) 4 ATC 272] , Paluru Ramkrishnaiah v. Union of 378 : AIR 1990 SC 166] , C. Rangaswamaiah v. Karnataka Lokayukta [(1998) 6 SCC 66 : 1998 SCC (L&S) 1448] and Joint Action Committee of Air Line Pilots' Assn. of India v. DG of Civil 17 In P D Aggarwal v. State of U.P.21 a two judge Bench of this Court declined to grant primacy to an Office Memorandum issued by the Government of Uttar Pradesh which purportedly amended the method of recruitment of Assistant Civil Engineers in the U.P. Public Service Commission without amending the relevant “20. The office memorandum dated December 7, 1961 which purports to amend the United Provinces Service of Engineers (Buildings and Roads Branch) Class II Rules, 1936 in our opinion cannot override, amend or supersede statutory rules. This memorandum is nothing but an administrative order or instruction and as such it cannot amend or supersede the statutory rules by adding something therein as has been observed by this Court in Sant Ram Sharma v. State of Rajasthan [AIR 1967 SC 1910 : (1968) 1 SCR 111 : (1968) 2 LLJ 830] . Moreover the benefits that have been conferred on the temporary Assistant Engineers who have become members of the service after being selected by the Public Service Commission in accordance with the service rules are entitled to have their seniority reckoned in accordance with the provisions of Rule 23 as it was then, from the date of their becoming member of the service, and this cannot be taken away by giving retrospective effect to the rules of 1969 and 1971 as it is arbitrary, irrational and not reasonable.” 18 The contesting respondents have referred to certain letters and to an internal communication of the appellant to urge that the DACP Scheme was to be implemented for promotions at the appellant. However, these letters, similar to the Office Memorandum dated 29 October 2008 implementing the DACP Scheme, would not have the force of law until they were enforced through an amendment to the recruitment regulations. In considering a similar factual situation, a three-judge Bench of this Court in Union of India v. Majji Jangamayya 22 held that: “31. The second question is whether the requirement of 10 years' experience was a statutory rule. The High Court held that the requirement of 10 years' experience is not a statutory rule. Counsel for the respondents contended that the requirement of 10 years' experience is statutory because the letter dated January 16, 1950 is by the Government of India and the Government of India has authority to frame rules and one of the letters dated July 21, 1950 referred to it as a formal rule. The contention is erroneous because there is a distinction between statutory orders and administrative instructions of the Government. This Court has held that in the absence of statutory rules, executive orders or administrative instructions may be made. (See CIT v. A. Raman & 34. Counsel on behalf of the respondents contended that the requirement of 10 years' experience laid down in the letter dated January 16, 1950 had the force of law because of Article 313. Article 313 does not change the legal character of a document. Article 313 refers to laws in force which mean statutory laws. An administrative instruction or order is not a statutory rule. The administrative instructions can be changed by the Government by reason of Article 73(1)(a) itself. 36. The expression “ordinarily” in the requirement of 10 years' experience shows that there can be a deviation from the requirement and such deviation can be justified by reasons. Administrative instructions if not carried into effect for good reasons cannot confer a right. (See P.C. Sethi v. Union of 19 On the dates when the contesting respondents joined the service of the appellant - 07 February 2014 till 26 June 2016 - their promotions were governed by the ESIC Recruitment Regulations 2008 which came into effect on 2 May 2009 and mandated four years of qualifying service for promotion from Assistant Professor to Associate Professor. When the contesting respondents had completed two years of service, they were governed by the ESIC Recruitment Regulations 2015 which came into effect on 5 July 2015 and mandated five years of qualifying service for promotion from Assistant Professor to Associate Professor. Thus, the DACP Scheme facilitating promotion on the completion of two years of service is not applicable to the contesting respondents, when the regulations have a statutory effect that overrides the Office Memorandum dated 29 October 2008 which implemented the DACP Scheme. 20 The advertisements issued by the appellant mentioned that the DACP Scheme would be applicable for its recruits. However, it is a settled principle of service jurisprudence that in the event of a conflict between a statement in an advertisement and service regulations, the latter shall prevail. In Malik Mazhar Sultan v. U.P. Public Service Commission 23 a two-judge Bench of this Court clarified that an erroneous advertisement would not create a right in favour of applicants who act on such representation. The Court considered the eligibility criteria for the post of Civil Judge (Junior Division) under the U.P. Judicial Service Rules, 2001 against an erroneous advertisement issued by the U.P. Public Service “21. The present controversy has arisen as the advertisement issued by PSC stated that the candidates who were within the age on 1-7-2001 and 1-7-2002 shall be treated within age for the examination. Undoubtedly, the excluded candidates were of eligible age as per the advertisement but the recruitment to the service can only be made in accordance with the Rules and the error, if any, in the advertisement cannot override the Rules and create a right in favour of a candidate if otherwise not eligible according to the Rules. The relaxation of age can be granted only if permissible under the Rules and not on the basis of the advertisement. If the interpretation of the Rules by PSC when it issued the advertisement was erroneous, no right can accrue on basis thereof. Therefore, the answer to the question would turn upon the interpretation of the Rules.” 21 In Ashish Kumar v. State of Uttar Pradesh 24 a two-judge Bench of this Court followed the decision in Malik Mazhar Sultan (supra) in interpreting an advertisement issued by the Director, Social Welfare Department, Uttar Pradesh for the position of a psychologist. This Court declined to give precedence to the erroneous qualifications prescribed in the advertisement against the relevant “27. Any part of the advertisement which is contrary to the statutory rules has to give way to the statutory prescription. Thus, looking to the qualification prescribed in the statutory rules, the appellant fulfils the qualification and after being selected for the post denying appointment to him is arbitrary and illegal. It is well settled that when there is variance in the advertisement and in the statutory rules, it is the statutory rules which take precedence….” 22 The contesting respondents urged that the advertisements indicated the applicability of the DACP Scheme before the ESIC Recruitment Regulations 2015 were issued. However, a subsequent amendment to recruitment regulations would override the conditions prescribed in the advertisement. In Rajasthan Public Service Commission v. Chanan Ram 25 a two-judge Bench of this Court held that an earlier advertisement becomes infructuous after a subsequent amendment to the “13. Under these circumstances, therefore, it is difficult to appreciate how the Division Bench of the High Court could persuade itself in agreeing with the submission of the learned counsel for the respondent-writ petitioner that despite this change of cadres and the provision for recruitment on new posts the old advertisement of 5-11-1993 Annexure P-1 seeking to consider the candidature of applicants for erstwhile 23 advertised vacancies in the posts of Assistant Directors (Junior) in the Agricultural Marketing Service of the State of Rajasthan would still be pursued further and recruitment should be effected for these 23 erstwhile vacancies as per the old advertisement. It is easy to visualise that even if such an earlier advertisement of 5- 11-1993 was proceeded with further it would have resulted into a stalemate and an exercise in futility. No appointment could have been given to the selected candidates to the posts of Assistant Directors (Junior) after 1995 amendment of Rules as there were no such posts in the hierarchy of State Service. Consequently it must be held that on account of the amendments to the Rajasthan Agricultural Marketing Service Rules the earlier advertisement dated 5-11-1993 had become infructuous and otiose. Only on this short ground the writ petition of the respondent-writ petitioner should have been dismissed by confirming the order of dismissal of the writ petition earlier passed by the learned Single Judge…….” 23 The contesting respondents submitted that the appellant is estopped from urging that the DACP Scheme is not applicable to the Teaching Cadre at the ESIC since they have taken this stance before the CAT and in its writ petition before the High Court. While this Court expresses its disapproval at the lack of proper instructions being tendered to the Counsel of the appellant, there can be no estoppel against a statute or regulations having a statutory effect. In Nedunuri Kameswaramma v. Sampati Subba Rao 26 a three-judge Bench of this Court decided a central point of the dispute in favour of a party, irrespective of the concession of its Counsel since it was on a point of law. Justice M Hidayatullah (as the learned Chief Justice then was), speaking on behalf of the Court observed: “20. From the above analysis of the documents, it is quite clear that the documents on the side of the appellant established that this was a Karnikam service inam, and the action of the Zamindar in resuming it as such, which again has a presumption of correctness attaching to it, clearly established the appellant's case. Much cannot be made of a concession by counsel that this was a Dharmilainam, in the trial court, because it was a concession on a point of law, and it was withdrawn. Indeed, the central point in the dispute was this, and the concession appears to us to be due to some mistake or possibly ignorance not binding on the client. We are thus of opinion that the decision of the two courts below which had concurrently held this to be jeroyti land after resumption of the Karnikam service inam, was correct in the circumstances of the case, and the High Court was not justified in reversing it.” 24 In Himalayan Coop. Group Housing Society v. Balwan Singh 27 a three- judge Bench of this Court clarified the law of agency with respect to client-lawyer relationships. The Court held that while generally admissions of fact by counsel are binding, neither the client nor the court is bound by admissions as to matters of law “32. Generally, admissions of fact made by a counsel are binding upon their principals as long as they are unequivocal; where, however, doubt exists as to a purported admission, the court should be wary to accept such admissions until and unless the counsel or the advocate is authorised by his principal to make such admissions. Furthermore, a client is not bound by a statement or admission which he or his lawyer was not authorised to make. A lawyer generally has no implied or apparent authority to make an admission or statement which would directly surrender or conclude the substantial legal rights of the client unless such an admission or statement is clearly a proper step in accomplishing the purpose for which the lawyer was employed. We hasten to add neither the client nor the court is bound by the lawyer's statements or admissions as to matters of law or legal conclusions. Thus, according to generally accepted notions of professional responsibility, lawyers should follow the client's instructions rather than substitute their judgment for that of the client. We may add that in some cases, lawyers can make decisions without consulting the client. While in others, the decision is reserved for the client. It is often said that the lawyer can make decisions as to tactics without consulting the client, while the client has a right to make decisions that can affect his rights.” 25 Recently, a two-judge Bench of this Court in Director of Elementary Education, Odisha v. Pramod Kumar Sahoo 28 observed that a concession on a question of law concerning service rules would not bind the State: “11. The concession given by the learned State Counsel before the Tribunal was a concession in law and contrary to the statutory rules. Such concession is not binding on the State for the reason that there cannot be any estoppel against law. The rules provide for a specific grade of pay, therefore, the concession given by the learned State Counsel before the Tribunal is not binding on the appellant.” The concession of the Counsel for the appellant before the CAT does not preclude the finding on the law that is arrived at by this Court. 26 The CAT and the High Court failed to notice the applicability of the ESIC Recruitment Regulations 2015 to the promotions of the Teaching Cadre in the appellant corporation. The ESIC Recruitment Regulations 2015 have precedence over the Office Memorandum dated 29 October 2008 which implemented the DACP Scheme in respect of officers of the Central Health Service under the Union Ministry of Health and Family Welfare. The concession by the Counsel of the appellant before the CAT does not stand in the way of the appellant supporting the correct position of law before this Court. 27 The contesting respondents did not challenge the ESIC Recruitment Regulations 2008 or the ESIC Recruitment Regulations 2015 before the CAT or the High Court. The argument on lack of prior approval as per Section 17(2) of the ESI Act is obviated by the preamble to the ESIC Recruitment Regulations 2015. The contesting respondents have only supported the applicability of the DACP Scheme to claim promotion as Associate Professor after two years of service. The advertisements for recruitment mentioning the DACP Scheme would have no effect since they were in contravention of the applicable recruitment regulations. Therefore, for the above reasons, we are of the view that the appeal should be 28 The appeal is accordingly allowed and the impugned judgement and order of the Division Bench of the Karnataka High Court dated 5 September 2019 is set aside. As a consequence, the revised seniority list of the Teaching Cadre at the appellant corporation should reflect the promotions of the contesting respondents in accordance with the ESIC Recruitment Regulations 2015 and not the DACP 29 The appeal is disposed of in the above terms. 30 Pending application(s), if any, shall stand disposed of.
The Supreme Court repeated an important rule. It said that statements lawyers make about legal rules or their meaning do not bind their clients or the court itself. While lawyers' admissions about facts usually must be accepted, no one has to agree with a lawyer's claims about the law. Justices DY Chandrachud and AS Bopanna made this point in a case. The case was about a specific promotion plan, called DACP, which seemed to go against the official hiring rules of ESIC. This case started because some Assistant Professors at an ESIC hospital wanted promotions. They had joined between 2012 and 2014. Their argument was that a government plan from 2008 meant they should become Associate Professors after two years. So, in 2017, after two years of service, they asked a special court, the Central Administrative Tribunal (CAT), for these promotions. The CAT agreed. It said the hospital's new ESIC regulations did not apply. The CAT told the hospital (ESIC) to consider the professors for promotion under the DACP plan. The hospital then challenged this decision in the High Court of Karnataka. But the High Court also dismissed their challenge. It ruled that since the hospital's 2015 hiring rules began *after* the professors were hired, the professors should get the promotion benefits from the DACP plan. The High Court also ruled that... When the case reached the Supreme Court, the professors argued something else. They said the hospital could not now claim the DACP plan did not apply to teachers. They pointed out that the hospital had already taken the opposite view in the CAT and High Court. The Supreme Court was not pleased that the hospital's lawyers might have received poor instructions. However, it added that a previous argument cannot overrule a law or official regulation. The Court referred to an earlier case, *Himalayan Coop. Group Housing Society v. Balwan Singh*. In that case, the court said a lawyer usually cannot make a statement that directly gives up a client's main legal rights. This is unless such a statement is clearly part of the lawyer's job. The Court then repeated: neither the client nor the court is bound by a lawyer's statements or agreements about legal rules or conclusions. The court also mentioned another judgment, *Director of Elementary Education, Odisha v. Pramod Kumar Sahoo*. Therefore, the Supreme Court decided that what the hospital's lawyer agreed to in the CAT court did not stop the Supreme Court from deciding what the law truly means.
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01. Heard finally with the consent of learned Counsels for the parties at the admission stage. 02. The applicant/accused is seeking quashing of FIR bearing Crime No.514 of 2021, registered with Police Station Nanalpeth, Parbhani for the offences punishable under sections 498(A), 323, 504, 506 of the Indian Penal Code and also consequential charge-sheet bearing RCC No.178 of 2022, pending before the Judicial Magistrate, First Class, Parbhani, on the ground that the parties have arrived at amicable settlement. 03. Learned Counsel for the applicant submits that applicant – husband and respondent No.2 – wife got separated by mutual consent and accordingly approached the Family Court, Parbhani for declaration of their matrimonial status in terms of provisions of section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 read with section 7(1)(b) Explanation (b) of the Family Courts Act, 1984. By judgment and order dated 09.03.2022 learned Judge of the Family Court at Parbhani had allowed the petition and declared their status as they are no more husband and wife in terms of the mutual agreement between them. It is further agreed between the parties that the applicant-husband shall pay an amount of Rs.5 lakhs to respondent No.2 as the amount for future maintenance in total. Learned Counsel for respondent No.2 submits that respondent No.2 has filed consent affidavit-in- reply and she also received said amount of Rs.5 lakhs. Learned Counsel for respondent No.2 submits that respondent No.2 is not interested in prosecuting the applicant in connection with aforesaid crime and continue with the criminal proceedings arising out of said crime. 04. We have heard learned APP for the respondent/State. Learned APP Mr. Dande has placed before us a case of Madras High Court in C.R.P. (NPD) No.161 of 2021, wherein the Madras High Court by referring the law laid down by the Supreme Court in the case of Mst. Zohara Khatoon Vs. Mohd. Ibrahim, (1981) 2 SCC 509, submits that mubarat is a form of extra- judicial divorce based on mutual consent under Islamic Law and same is valid, as it remains untouched by the Dissolution of Muslim Marriages Act. The Madras High Court in para No.17 of the judgment as made following “17. Coming to the present case on hand, the learned Principal District Munsif, Alandur has refused to entertain the petition in the light of provisions under Order VII Rule 11(d) of CPC and the Judgment of High Court of Karnataka in Miscellaneous First Appeal No.200834/2019(FC) [Zuber Vs. Mahezabeen] and the same is challenged in the present revision. It appears that the petitioner filed O.S. before the learned Principal District Munsif at Alandur to declare that the Marriage solemnized between the petitioner and respondent on 01.12.2018 to be dissolved in terms of MOU entered between them. However, the same was returned several times for want of several reasons and thereafter, the said petition was dismissed even without numbering the petition. As already mentioned supra, the Hon’ble Division Bench of High Court of Kerala at Ernakulaam, had categorically held that ‘mubaraat’ is a form of an extra-judicial divorce based on mutual consent under Islamic law and same is valid, as it remains untouched by the Dissolution of Muslim Marriages Act. The court below, in such circumstances, is neither called upon to adjudicate nor called upon to dissolve the marriage by decree of divorce. On the other hand, the Family Court only has to declare the maritial stauts by endorsing the mubaraat invoking jurisdiction under Explanation (b) of Section 7(1) of the Family Courts Act. Once a declaration of joint divorce invoking bubaraat is produced before the Family Court, the Family Court has to pass a decree declaring the matrimonial status of the parties. The inquiry in such cases is limited to the extent to find out whether both parties have agreed upon to dissolve such marriage invoking mubaraat. Once the Family Court is satisfied that mubaraat is executed by both the parties, it shall declare the matrimonial status of such parties. Hence, this Court is of the considered view that the Family Court is bound to entertain a petition for declaration of the status based on mubaraat. In view of the above, the order passed by the learned Principal District Munsif, Alandur in O.S.Sr.No.744/2020 dated 28.09.2020 is set aside and the parties are at liberty to approach the concerned Family Court with appropriate jurisdiction. Thereafter, the concerned Family Court shall dispose of the matter, if both the parties have filed petition and after making a formal inquiry without any further delay treating it as an uncontested matter in the light of the guidelines issued by the Hon’ble Division Bench, High Court of Kerala, Ernakulam in the judgment in O.P.(FC) No.352/2020 and connected cases dated 23/3/2021 and the present Civil Revision Petition is allowed. No costs. 05. We have carefully gone through the allegations made in the complaint and also police papers. It appears that the parties have decided to get separated by mutual consent and accordingly approached the Family Court by filing a petition No. F No.28 of 2022 under section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 read with section 7 (1)(b) of the Family Courts Act for declaration of status. It appears that the parties have arrived at amicable settlement voluntarily. 06. In the case of Gian Singh vs. State of Punjab and others, reported in (2012) 10 SCC 303, the Supreme Court in para 48 has quoted para 21 of the judgment of the five-Judge Bench of the Punjab and Haryana High Court delivered in Kulwinder Singh v. State of Punjab (2007) 4 CTC 769 . A five- Judge Bench of the Punjab and Haryana High Court, in para 21 of the judgment, by placing reliance on the various judgments of the Supreme court, has framed the guidelines for quashing of the criminal proceeding on the ground of settlement. Para 21 of the said case of Kulwinder Singh’s judgment is reproduced by the Supreme Court in para 48 of the judgment in Gian Singh. Clause 21(a) which is relevant for the present discussion reads as under :- (a) Cases arising from matrimonial discord, even if other offences are introduced for aggravation of the case.” The Supreme Court in paragraph no.61 of the judgment of Gian Singh (supra) has made following observations :- “61. The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz; (i) to secure the ends of justice or (ii) to prevent abuse of the process of any Court. In what cases power to quash the criminal proceeding or complaint or F.I.R may be exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim’s family and the offender have settled the dispute. Such offences are not private in nature and have serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and predominatingly civil flavour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding. 07. In the instant case, in terms of provisions of section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, all the questions about the property, marriage, dissolution of marriage including talaq, illa, zihar, lian, khula and mubaraat, maintenance, dower, guardianship gifts, trusts and trust properties and wakfs the rule of decision in cases where the parties are Muslims shall be considered as per the provisions of Muslim Personal Law (Shariat). It further appears from the bare reading of section 7 of Family Courts Act, 1984, which prescribes jurisdiction, in terms of section 7(1), Explanation (a) and (b), suit for a declaration as to the validity of a marriage or as to the matrimonial status of any person can also be a subject matter before the Family Court. Further, we have also gone through the law laid down by the Supreme Court in the case of Mst. Zohara (supra), in para 22 of the judgment, the Supreme Court has made following observations :- “22.In these circumstances we are therefore, satisfied that the interpretation put by the High Court on the second limb of clause (b) is not correct. This seems to be borne out from the provisions of Mahomedan law itself. It would appear that under the Mahomedan law there are three distinct modes in which a muslim marriage can be dissolved and the relationship of the husband and the wife terminated so as to result in an irrevocable divorce. (1) Where the husband unilaterally gives a divorce according to any of the forms approved by the Mahomedan law, viz, Talaq ahsan which consists of a single pronouncement of divorce during tuhar (Period between menstruations) followed by abstinence from sexual intercourse for the period of iddat; or Talak hasan which consists of three pronouncement made during the successive tuhrs, no intercourse taking place between three tuhrs; and lastly Talak-ul-bidaat or talalk-i-badai which consists of three pronouncements made during a single tuhr either in one sentence or in three sentences signifying a clear intention to divorce the wife, for instance, the husband saying 'I divorce thee irrevocably' or 'I divorce thee, I divorce thee, I divorce thee'. The third form referred to above is however not recognised by the Shiah law. In the instant case, we are concerned with the appellant who appears to be a Sunni and governed by the Hanafi law (vide Mulla's Principles of Mahomedan Law, Sec. 311, p. 297). A divorce or talaq may be given orally or in writing and it becomes irrevocable if the period of iddat is observed though it is not necessary that the woman divorced should come to know of the fact that she has been divorced by her husband. (2) By an agreement between the husband and the wife whereby a wife obtains divorce by relinquishing either her entire or part of the dower. This mode of divorce is called 'khula' or Mubarat. This form of divorce is initiated by the wife and comes into existence if the husband gives consent to the agreement and releases her from the marriage tie. Where, however, both parties agree and desire a separation resulting in a divorce, it is called mubarat. The gist of these mode is that it comes into existence with the consent of both the parties particularly the husband because without his consent this mode of divorce would be incapable of being enforced. A divorce may also come into existence by virtue of an agreement either before or after the marriage by which it is provided that the wife should be at liberty to divorce herself in specified contingencies which are of a reasonable nature and which again are agreed to by the husband. In such a case the wife can repudiate herself in the exercise of the power and the divorce would be deemed to have been pronounced by the husband. This mode of divorce is called 'Tawfeez' (vide Mulla's Mohmedan Law, Sec. 314. p. 300. ) (3) By obtaining a decree from a civil court for dissolution of marriage under s. 2 of the Act of 1939 which also amounts to a divorce (under the law) obtained by the wife. For the purpose of maintenance, this mode is governed not by clause (b) but by clause (c) of sub-section (3) of s. 127 of the 1973 Code; whereas the divorce given under modes (1) and (2) would be covered by clause (b) of sub-section (3) of s. 127.” 08. It thus appears that the learned Judge of the Family Court has rightly applied the provisions of Muslim Personal Law (Shariat) Application Act, 1937 to the parties before us and accordingly declared the status of marriage as no more in existence by mutual consent. 09. In view of above and the ratio laid down by the Supreme Court in above cited cases, we proceed to pass following order :- (i) The Criminal Application is allowed in terms of prayer clause (A-1). (ii) The Criminal Application is accordingly disposed of.
The Bombay High Court stopped a criminal case against a husband. It did this because a Family Court had already ended his marriage to his Muslim wife. They ended it by mutual agreement, following Muslim Personal Law. This agreement was part of a case in the Family Court. The court pointed out that the Muslim Personal Law (Shariat) Act of 1937 controls many things for Muslims. These include their property, marriage, how a marriage ends (which includes a type of divorce called *mubaraat*), financial support (*maintenance*), a gift from the husband to the wife at marriage (*dower*), and rules about guardianship, gifts, and trusts. The court also mentioned that under Section 7(1)(b) of the Family Courts Act, a Family Court has the power to decide if a marriage is legally proper or what a person's marital status is (meaning, if they are married, divorced, etc.). The court stated in its order that the Family Court correctly used the rules from the Muslim Personal Law (Shariat) Application Act of 1937 for the couple. Because of this, the Family Court declared that their marriage no longer existed, as both parties had agreed to it. After this, the court stopped the criminal case against the husband. It did this by following a Supreme Court ruling in the case of Kulwinder Singh, which says that criminal cases resulting from marriage problems can be ended if the couple reaches an agreement. Facts of the Case The husband wanted the court to stop a police report, called an FIR, that was filed against him by the Parbhani police. This FIR was for crimes under sections 498(A), 323, 504, and 506 of the Indian Penal Code. He also wanted to stop the official charges that followed the FIR. He asked for this because he and his wife had reached a friendly agreement. The husband's lawyer, Shaikh Wajeed Ahmed, told the court that the couple had separated by mutual agreement. Because of this, they went to the Family Court in Parbhani. They wanted the court to officially state their marital status, following Section 2 of the Muslim Personal Law (Shariat) Application Act of 1937 and Section 7(1)(b) Explanation (b) of the Family Courts Act of 1984. On March 9, 2022, the Family Court judge agreed to their request. The judge declared that they were no longer husband and wife, based on their mutual agreement. The wife agreed to stop the criminal case against her husband after she received Rs. 5 lakhs as a complete and final payment for their agreement. Prosecutor SS Dande referred to a Supreme Court decision from the case of Zohara Khatoon Vs. Mohd. Ibrahim. He used this to explain that *mubaraat* is a valid way to end a marriage under Islamic Law. *Mubaraat* is a type of divorce where both husband and wife agree to separate, often initiated by the woman. This type of divorce is valid because it is not affected by the Dissolution of Muslim Marriages Act. The Supreme Court ruling also explained that there are three main ways a Muslim marriage can end completely and permanently. First, the husband can divorce his wife using certain forms approved by Islamic law. One form is called *Talaq ahsan*, which involves a single declaration of divorce during a specific clean period (between menstruations). After this, the couple must avoid sexual contact for a waiting period called *iddat*. Other forms include *Talak hasan* and *Talak-ul-bidaat* (also known as *talalk-i-badai*). These forms involve the husband saying "I divorce you" three times during one clean period. He can say it all at once or in three separate sentences, clearly showing he means to divorce his wife. Second, the husband and wife can agree to divorce. In some cases, the wife might get a divorce by giving up all or part of her *dower* (the money or gift she received at marriage). This is known as *khula* or *mubaraat*. When both husband and wife want and agree to separate, leading to a divorce, it is specifically called *mubaraat*. Third, a wife can get a court order from a civil court to end the marriage under Section 2 of the 1939 Act. This also counts as a divorce given to the wife by law. For financial support (*maintenance*) purposes, this type of divorce follows a different rule (clause (c) of sub-section (3) of Section 127 of the 1973 Code) compared to divorces given in the first two ways, which follow clause (b) of the same section. The court stated, "It appears that the parties have reached a friendly agreement willingly." Because of this, the court stopped the criminal cases against the husband.
01. Heard finally with the consent of learned Counsels for the parties at the admission stage. 02. The applicant/accused is seeking quashing of FIR bearing Crime No.514 of 2021, registered with Police Station Nanalpeth, Parbhani for the offences punishable under sections 498(A), 323, 504, 506 of the Indian Penal Code and also consequential charge-sheet bearing RCC No.178 of 2022, pending before the Judicial Magistrate, First Class, Parbhani, on the ground that the parties have arrived at amicable settlement. 03. Learned Counsel for the applicant submits that applicant – husband and respondent No.2 – wife got separated by mutual consent and accordingly approached the Family Court, Parbhani for declaration of their matrimonial status in terms of provisions of section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 read with section 7(1)(b) Explanation (b) of the Family Courts Act, 1984. By judgment and order dated 09.03.2022 learned Judge of the Family Court at Parbhani had allowed the petition and declared their status as they are no more husband and wife in terms of the mutual agreement between them. It is further agreed between the parties that the applicant-husband shall pay an amount of Rs.5 lakhs to respondent No.2 as the amount for future maintenance in total. Learned Counsel for respondent No.2 submits that respondent No.2 has filed consent affidavit-in- reply and she also received said amount of Rs.5 lakhs. Learned Counsel for respondent No.2 submits that respondent No.2 is not interested in prosecuting the applicant in connection with aforesaid crime and continue with the criminal proceedings arising out of said crime. 04. We have heard learned APP for the respondent/State. Learned APP Mr. Dande has placed before us a case of Madras High Court in C.R.P. (NPD) No.161 of 2021, wherein the Madras High Court by referring the law laid down by the Supreme Court in the case of Mst. Zohara Khatoon Vs. Mohd. Ibrahim, (1981) 2 SCC 509, submits that mubarat is a form of extra- judicial divorce based on mutual consent under Islamic Law and same is valid, as it remains untouched by the Dissolution of Muslim Marriages Act. The Madras High Court in para No.17 of the judgment as made following “17. Coming to the present case on hand, the learned Principal District Munsif, Alandur has refused to entertain the petition in the light of provisions under Order VII Rule 11(d) of CPC and the Judgment of High Court of Karnataka in Miscellaneous First Appeal No.200834/2019(FC) [Zuber Vs. Mahezabeen] and the same is challenged in the present revision. It appears that the petitioner filed O.S. before the learned Principal District Munsif at Alandur to declare that the Marriage solemnized between the petitioner and respondent on 01.12.2018 to be dissolved in terms of MOU entered between them. However, the same was returned several times for want of several reasons and thereafter, the said petition was dismissed even without numbering the petition. As already mentioned supra, the Hon’ble Division Bench of High Court of Kerala at Ernakulaam, had categorically held that ‘mubaraat’ is a form of an extra-judicial divorce based on mutual consent under Islamic law and same is valid, as it remains untouched by the Dissolution of Muslim Marriages Act. The court below, in such circumstances, is neither called upon to adjudicate nor called upon to dissolve the marriage by decree of divorce. On the other hand, the Family Court only has to declare the maritial stauts by endorsing the mubaraat invoking jurisdiction under Explanation (b) of Section 7(1) of the Family Courts Act. Once a declaration of joint divorce invoking bubaraat is produced before the Family Court, the Family Court has to pass a decree declaring the matrimonial status of the parties. The inquiry in such cases is limited to the extent to find out whether both parties have agreed upon to dissolve such marriage invoking mubaraat. Once the Family Court is satisfied that mubaraat is executed by both the parties, it shall declare the matrimonial status of such parties. Hence, this Court is of the considered view that the Family Court is bound to entertain a petition for declaration of the status based on mubaraat. In view of the above, the order passed by the learned Principal District Munsif, Alandur in O.S.Sr.No.744/2020 dated 28.09.2020 is set aside and the parties are at liberty to approach the concerned Family Court with appropriate jurisdiction. Thereafter, the concerned Family Court shall dispose of the matter, if both the parties have filed petition and after making a formal inquiry without any further delay treating it as an uncontested matter in the light of the guidelines issued by the Hon’ble Division Bench, High Court of Kerala, Ernakulam in the judgment in O.P.(FC) No.352/2020 and connected cases dated 23/3/2021 and the present Civil Revision Petition is allowed. No costs. 05. We have carefully gone through the allegations made in the complaint and also police papers. It appears that the parties have decided to get separated by mutual consent and accordingly approached the Family Court by filing a petition No. F No.28 of 2022 under section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 read with section 7 (1)(b) of the Family Courts Act for declaration of status. It appears that the parties have arrived at amicable settlement voluntarily. 06. In the case of Gian Singh vs. State of Punjab and others, reported in (2012) 10 SCC 303, the Supreme Court in para 48 has quoted para 21 of the judgment of the five-Judge Bench of the Punjab and Haryana High Court delivered in Kulwinder Singh v. State of Punjab (2007) 4 CTC 769 . A five- Judge Bench of the Punjab and Haryana High Court, in para 21 of the judgment, by placing reliance on the various judgments of the Supreme court, has framed the guidelines for quashing of the criminal proceeding on the ground of settlement. Para 21 of the said case of Kulwinder Singh’s judgment is reproduced by the Supreme Court in para 48 of the judgment in Gian Singh. Clause 21(a) which is relevant for the present discussion reads as under :- (a) Cases arising from matrimonial discord, even if other offences are introduced for aggravation of the case.” The Supreme Court in paragraph no.61 of the judgment of Gian Singh (supra) has made following observations :- “61. The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz; (i) to secure the ends of justice or (ii) to prevent abuse of the process of any Court. In what cases power to quash the criminal proceeding or complaint or F.I.R may be exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim’s family and the offender have settled the dispute. Such offences are not private in nature and have serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and predominatingly civil flavour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding. 07. In the instant case, in terms of provisions of section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, all the questions about the property, marriage, dissolution of marriage including talaq, illa, zihar, lian, khula and mubaraat, maintenance, dower, guardianship gifts, trusts and trust properties and wakfs the rule of decision in cases where the parties are Muslims shall be considered as per the provisions of Muslim Personal Law (Shariat). It further appears from the bare reading of section 7 of Family Courts Act, 1984, which prescribes jurisdiction, in terms of section 7(1), Explanation (a) and (b), suit for a declaration as to the validity of a marriage or as to the matrimonial status of any person can also be a subject matter before the Family Court. Further, we have also gone through the law laid down by the Supreme Court in the case of Mst. Zohara (supra), in para 22 of the judgment, the Supreme Court has made following observations :- “22.In these circumstances we are therefore, satisfied that the interpretation put by the High Court on the second limb of clause (b) is not correct. This seems to be borne out from the provisions of Mahomedan law itself. It would appear that under the Mahomedan law there are three distinct modes in which a muslim marriage can be dissolved and the relationship of the husband and the wife terminated so as to result in an irrevocable divorce. (1) Where the husband unilaterally gives a divorce according to any of the forms approved by the Mahomedan law, viz, Talaq ahsan which consists of a single pronouncement of divorce during tuhar (Period between menstruations) followed by abstinence from sexual intercourse for the period of iddat; or Talak hasan which consists of three pronouncement made during the successive tuhrs, no intercourse taking place between three tuhrs; and lastly Talak-ul-bidaat or talalk-i-badai which consists of three pronouncements made during a single tuhr either in one sentence or in three sentences signifying a clear intention to divorce the wife, for instance, the husband saying 'I divorce thee irrevocably' or 'I divorce thee, I divorce thee, I divorce thee'. The third form referred to above is however not recognised by the Shiah law. In the instant case, we are concerned with the appellant who appears to be a Sunni and governed by the Hanafi law (vide Mulla's Principles of Mahomedan Law, Sec. 311, p. 297). A divorce or talaq may be given orally or in writing and it becomes irrevocable if the period of iddat is observed though it is not necessary that the woman divorced should come to know of the fact that she has been divorced by her husband. (2) By an agreement between the husband and the wife whereby a wife obtains divorce by relinquishing either her entire or part of the dower. This mode of divorce is called 'khula' or Mubarat. This form of divorce is initiated by the wife and comes into existence if the husband gives consent to the agreement and releases her from the marriage tie. Where, however, both parties agree and desire a separation resulting in a divorce, it is called mubarat. The gist of these mode is that it comes into existence with the consent of both the parties particularly the husband because without his consent this mode of divorce would be incapable of being enforced. A divorce may also come into existence by virtue of an agreement either before or after the marriage by which it is provided that the wife should be at liberty to divorce herself in specified contingencies which are of a reasonable nature and which again are agreed to by the husband. In such a case the wife can repudiate herself in the exercise of the power and the divorce would be deemed to have been pronounced by the husband. This mode of divorce is called 'Tawfeez' (vide Mulla's Mohmedan Law, Sec. 314. p. 300. ) (3) By obtaining a decree from a civil court for dissolution of marriage under s. 2 of the Act of 1939 which also amounts to a divorce (under the law) obtained by the wife. For the purpose of maintenance, this mode is governed not by clause (b) but by clause (c) of sub-section (3) of s. 127 of the 1973 Code; whereas the divorce given under modes (1) and (2) would be covered by clause (b) of sub-section (3) of s. 127.” 08. It thus appears that the learned Judge of the Family Court has rightly applied the provisions of Muslim Personal Law (Shariat) Application Act, 1937 to the parties before us and accordingly declared the status of marriage as no more in existence by mutual consent. 09. In view of above and the ratio laid down by the Supreme Court in above cited cases, we proceed to pass following order :- (i) The Criminal Application is allowed in terms of prayer clause (A-1). (ii) The Criminal Application is accordingly disposed of.
The Bombay High Court stopped a criminal case against a husband. It did this because a Family Court had already ended his marriage to his Muslim wife. They ended it by mutual agreement, following Muslim Personal Law. This agreement was part of a case in the Family Court. The court pointed out that the Muslim Personal Law (Shariat) Act of 1937 controls many things for Muslims. These include their property, marriage, how a marriage ends (which includes a type of divorce called *mubaraat*), financial support (*maintenance*), a gift from the husband to the wife at marriage (*dower*), and rules about guardianship, gifts, and trusts. The court also mentioned that under Section 7(1)(b) of the Family Courts Act, a Family Court has the power to decide if a marriage is legally proper or what a person's marital status is (meaning, if they are married, divorced, etc.). The court stated in its order that the Family Court correctly used the rules from the Muslim Personal Law (Shariat) Application Act of 1937 for the couple. Because of this, the Family Court declared that their marriage no longer existed, as both parties had agreed to it. After this, the court stopped the criminal case against the husband. It did this by following a Supreme Court ruling in the case of Kulwinder Singh, which says that criminal cases resulting from marriage problems can be ended if the couple reaches an agreement. Facts of the Case The husband wanted the court to stop a police report, called an FIR, that was filed against him by the Parbhani police. This FIR was for crimes under sections 498(A), 323, 504, and 506 of the Indian Penal Code. He also wanted to stop the official charges that followed the FIR. He asked for this because he and his wife had reached a friendly agreement. The husband's lawyer, Shaikh Wajeed Ahmed, told the court that the couple had separated by mutual agreement. Because of this, they went to the Family Court in Parbhani. They wanted the court to officially state their marital status, following Section 2 of the Muslim Personal Law (Shariat) Application Act of 1937 and Section 7(1)(b) Explanation (b) of the Family Courts Act of 1984. On March 9, 2022, the Family Court judge agreed to their request. The judge declared that they were no longer husband and wife, based on their mutual agreement. The wife agreed to stop the criminal case against her husband after she received Rs. 5 lakhs as a complete and final payment for their agreement. Prosecutor SS Dande referred to a Supreme Court decision from the case of Zohara Khatoon Vs. Mohd. Ibrahim. He used this to explain that *mubaraat* is a valid way to end a marriage under Islamic Law. *Mubaraat* is a type of divorce where both husband and wife agree to separate, often initiated by the woman. This type of divorce is valid because it is not affected by the Dissolution of Muslim Marriages Act. The Supreme Court ruling also explained that there are three main ways a Muslim marriage can end completely and permanently. First, the husband can divorce his wife using certain forms approved by Islamic law. One form is called *Talaq ahsan*, which involves a single declaration of divorce during a specific clean period (between menstruations). After this, the couple must avoid sexual contact for a waiting period called *iddat*. Other forms include *Talak hasan* and *Talak-ul-bidaat* (also known as *talalk-i-badai*). These forms involve the husband saying "I divorce you" three times during one clean period. He can say it all at once or in three separate sentences, clearly showing he means to divorce his wife. Second, the husband and wife can agree to divorce. In some cases, the wife might get a divorce by giving up all or part of her *dower* (the money or gift she received at marriage). This is known as *khula* or *mubaraat*. When both husband and wife want and agree to separate, leading to a divorce, it is specifically called *mubaraat*. Third, a wife can get a court order from a civil court to end the marriage under Section 2 of the 1939 Act. This also counts as a divorce given to the wife by law. For financial support (*maintenance*) purposes, this type of divorce follows a different rule (clause (c) of sub-section (3) of Section 127 of the 1973 Code) compared to divorces given in the first two ways, which follow clause (b) of the same section. The court stated, "It appears that the parties have reached a friendly agreement willingly." Because of this, the court stopped the criminal cases against the husband.
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The present appeal is directed against the judgment dated 25.06.2018 passed by the High Court of Madhya Pradesh, Bench at Gwalior in Crl. Revision No. 156 of 2009 upholding conviction of the appellants for offence under Section 325 read with Section 149 of the IPC and sentence of one year RI and a fine of Rs.500/­ and in default with imprisonment for one month. The facts in brief which emanate from the record are that the complainant had lodged a report against the appellants and 18 others on that basis FIR was registered on 27.11.2004 at about 13.00 hours and a charge­sheet was submitted against the appellants and 18 other accused persons under Sections 148, 294, 341/149, 325/149 (2 counts), 323/149 (4 counts), 324/149 and 427/149 of IPC. In the report it was stated by the complainant that on 27.11.2004 at about 10.00 a.m. he and his sons had gone to a village in order to lift the engine of a tractor and when they were coming back after lifting the engine in their tractor trolley, on the way 15­20 persons who were armed with lathi and axe came there with a common object of eliminating them and started beating his son Bachna with lathi and axe by abusing him with filthy language. They were Mahendra Singh, Roop Singh, Khilan Singh son of Halkai, Bhujbal and 10 to 12 other persons, whose names are not known to him. The Trial Court charge­sheeted 20 persons under Sections 148, 294, 341/149, 325/149 (2 counts), 323/149 (4 counts), 324/149 and 427/149 of IPC, which was denied by the accused persons. The Trial Court by its judgment dated 12.11.2008, on the basis of the evidence recorded, convicted the appellants under Sections 148, 325/149 and 323/149 IPC. It may be relevant to note that the charge­sheet was filed implicating 20 accused persons who faced trial and the learned Trial Court acquitted 17 out of 20 accused persons who faced trial and three accused persons were finally convicted under Sections 148, 325/149 and 323/149 IPC. It may be relevant to note that one of the accused persons who were convicted, namely, Sardar Singh, expired during pendency of criminal revision before the High Court and qua him the revision was dismissed as having abated by order dated 20.04.2011. The judgment dated 12.11.2008 came to be confirmed on appeal being preferred by the present appellants before the learned 3rd Additional Sessions Judge, Vidisha by judgment dated 24.02.2009 and the criminal revision petition preferred at the instance of the appellants came to be dismissed under the impugned judgment dated 25.06.2018. Learned counsel for the appellants submits that the charge­ sheet was originally filed against 20 persons and all of them faced trial and 17 out of 20 accused persons were acquitted by the learned Trial Court by judgment and order dated 12.11.2008 and no further appeal/revision was preferred by the prosecution against the judgment of acquittal passed by the Trial Court against those 17 accused persons who faced trial and 3 out of 20 accused persons were convicted for offence under Sections 148, 325/149 and 323/149 IPC and it is not the case of the prosecution that there were other unnamed/unknown persons who could not be traced/charged other than the persons who faced trial. Counsel for the appellants submits that ingredients of Section 149 of an unlawful assembly that this membership must be five or more and in the instant case out of 20 accused persons who faced trial, three have been convicted by the learned Trial Court under the judgment dated 12.11.2008 under Sections 148, 325/149 and 323/149 IPC and the essential condition of unlawful assembly is that it must be of five or more persons, as contemplated under Section 141 IPC. Taking assistance thereof, counsel submits that the conviction under the impugned judgment of the appellants under Sections 325 with the aid of Section149 IPC is unsustainable in law. Counsel for the respondent, while supporting the judgment impugned submits that 20 persons were charge­sheeted who faced trial and thus merely because final conviction was of three accused persons under Sections 325 with the aid of Section 149 IPC, the requirement of Section 141 which contemplates unlawful assembly of five or more persons is being completely meted out and after the matter has been examined by the Court below on merits upholding conviction of the present appellants, it needs no interference by this Court. We have heard counsel for the parties and with their assistance perused the material placed on record. The legal position in regard to essential ingredients of an offence referred to in Section 149 are not in doubt. Section 149 prescribes for vicarious or constructive criminal liability for all members of an unlawful assembly where an offence is committed by any member of such an unlawful assembly in prosecution of the common object of that assembly or such as the members of that assembly knew to be likely to be committed in prosecution of that object. It may be noticed that the essential ingredients of Section 149 are that the offence must have been committed by any member of an unlawful assembly, and Section 141 makes it clear that it is only where five or more persons constituted an assembly that an unlawful assembly is born, provided, of course, the other requirements of the said section as to the common object of the persons composing that assembly are satisfied. To say in other words, it is an essential condition of an unlawful assembly that its membership must be five or more. At the same time, it may not be necessary that five or more persons necessarily be brought before the Court and convicted. Less than five persons may be charged under Section 149 if the prosecution case is that the persons before the Court and other numbering in all more than five composed an unlawful assembly, these others being persons not identified and un­ named. However, in the instant case, the persons are specifically named by the complainant and against them, after the investigation, charge­sheet was filed and all the 20 accused persons faced trial. It was not the case of the prosecution that there are other unnamed or unidentified persons other than the one who are charge­sheeted and faced trial. When the other co­accused persons faced trial and have been given benefit of doubt and have been acquitted, it would not be permissible to take the view that there must have been some other persons along with the appellant in causing injuries to the victim. In the facts and circumstances, it was as such not permissible to invoke Section The appellants may be held responsible for the offence, if any, which could be shown to have been committed by them with regard to the participation of others but that was not the case of the prosecution. In the given facts and circumstances, in our considered view, the conviction of the present appellants under Section 325 with the aid of Section 149 IPC at least could not have been invoked. That apart, the appellants have also undergone three months of substantive sentence during pendency of trial/appeal before the Courts below. Consequently, the appeal succeeds and is accordingly allowed. The judgment of the Trial Court dated 12.11.2008 convicting the appellants under Sections 148, 325/149 and 323/149 IPC, which came to be confirmed by the High Court under its revisional jurisdiction in Criminal Revision No.156/2009 is hereby quashed and set aside. Pending application(s), if any, shall stand disposed of. Petition(s) for Special Leave to Appeal (Crl.) No(s). 6530/2018 (Arising out of impugned final judgment and order dated 25-06-2018 in CRLR No. 156/2009 passed by the High Court Of M.P At Gwalior) Date : 05-01-2022 This matter was called on for hearing today. UPON hearing the counsel the Court made the following Leave granted. The appeal is allowed in terms of the signed order. Pending application(s), if any, shall stand disposed of.
The Supreme Court has noted that someone cannot be found guilty under Section 149 of India's criminal law (which is about being part of an illegal gathering) if the other people accused with them have been found not guilty. This makes the total number of people in the supposed illegal group fewer than five, and there are no unknown accused people involved in the case. Two judges, Justices Ajay Rastogi and AS Oka, were reviewing a challenge to a criminal case. This challenge was against a decision made by the Madhya Pradesh High Court on June 25, 2018. The High Court had agreed with the earlier decision that the people appealing were guilty of causing serious injury (under Section 325) while being part of an illegal gathering (under Section 149 of India's criminal law). They were sentenced to one year of hard labor in prison and a fine of 500 Rupees, with an extra month in prison if they couldn't pay the fine. Factual Background Official charges were filed against the people now appealing and 18 other accused individuals. These charges included various sections of India's criminal law, such as 148, 294, 341/149, 325/149 (for two different incidents), 323/149 (for four different incidents), 324/149, and 427/149. On November 12, 2008, the first court to hear the case found the appellants guilty under Sections 148, 325/149, and 323/149 of this law. Out of the 20 people who were officially accused and went to court, the first court found 17 of them not guilty. It only found 3 people guilty. A higher-level judge (the Sessions Judge) later confirmed these guilty verdicts, and then the High Court also confirmed them by rejecting the appellants' request for a review of their case. One of the people who had been found guilty later died. So, the two remaining people who were found guilty went to the Supreme Court to challenge their conviction. Submission of Counsels The lawyer for the people appealing told the court that charges were first filed against 20 individuals, and all of them went to court. On November 12, 2008, the first court found 17 of these 20 people not guilty. The lawyer also pointed out that the government's lawyers (the prosecution) did not appeal or ask for a review of these not-guilty verdicts for those 17 people. The lawyer further argued that only 3 out of the 20 accused were found guilty under Sections 148, 325/149, and 323/149 of the criminal law. Importantly, the government's lawyers never claimed that there were other unknown or unnamed people involved who weren't identified or charged, besides the ones who actually went to trial. To argue that the guilty verdict was not legally valid, the lawyer referred to Section 149 of India's criminal law. The lawyer stated that in this case, only three out of 20 accused people were found guilty. However, the basic requirement for an "unlawful assembly" (illegal gathering) is that it must involve five or more people, as outlined in Section 141 of the same law. The lawyer for the government argued that 20 people were initially charged and went to trial. Therefore, even though only three people were ultimately found guilty of causing injury with the help of Section 149, the rule in Section 141 that an illegal gathering must have five or more people was still fully met because 20 people were involved at the start. Supreme Court's Analysis The judges agreed with the appeal. They also explained the key parts of Section 149 of India's criminal law, stating: "It's important to know that for Section 149 to apply, the crime must have been committed by someone who was part of an illegal gathering. Section 141 makes it clear that an illegal gathering only comes into being when five or more people form it. This is true as long as they also shared a common illegal goal, as that section requires. In simpler terms, an illegal gathering must always have five or more members." "However, it is not always necessary for five or more people to actually be brought to court and found guilty. Fewer than five people can still be charged under Section 149 if the government's lawyers argue that the people in court, along with other unknown and unnamed individuals, together made up an illegal gathering of more than five members." The Court then said: "However, in this particular case, the people involved were clearly named by the person who complained. After the police investigation, charges were filed, and all 20 accused people went to court. The government's lawyers did not claim that there were any other unnamed or unknown people involved besides those who were charged and went to trial. Since the other people accused with them were found not guilty due to a lack of strong evidence, it would not be right to assume that there must have been other people with the appellants who hurt the victim. Because of these specific facts and circumstances, it was therefore not allowed to use Section 149 of India's criminal law."
The present appeal is directed against the judgment dated 25.06.2018 passed by the High Court of Madhya Pradesh, Bench at Gwalior in Crl. Revision No. 156 of 2009 upholding conviction of the appellants for offence under Section 325 read with Section 149 of the IPC and sentence of one year RI and a fine of Rs.500/­ and in default with imprisonment for one month. The facts in brief which emanate from the record are that the complainant had lodged a report against the appellants and 18 others on that basis FIR was registered on 27.11.2004 at about 13.00 hours and a charge­sheet was submitted against the appellants and 18 other accused persons under Sections 148, 294, 341/149, 325/149 (2 counts), 323/149 (4 counts), 324/149 and 427/149 of IPC. In the report it was stated by the complainant that on 27.11.2004 at about 10.00 a.m. he and his sons had gone to a village in order to lift the engine of a tractor and when they were coming back after lifting the engine in their tractor trolley, on the way 15­20 persons who were armed with lathi and axe came there with a common object of eliminating them and started beating his son Bachna with lathi and axe by abusing him with filthy language. They were Mahendra Singh, Roop Singh, Khilan Singh son of Halkai, Bhujbal and 10 to 12 other persons, whose names are not known to him. The Trial Court charge­sheeted 20 persons under Sections 148, 294, 341/149, 325/149 (2 counts), 323/149 (4 counts), 324/149 and 427/149 of IPC, which was denied by the accused persons. The Trial Court by its judgment dated 12.11.2008, on the basis of the evidence recorded, convicted the appellants under Sections 148, 325/149 and 323/149 IPC. It may be relevant to note that the charge­sheet was filed implicating 20 accused persons who faced trial and the learned Trial Court acquitted 17 out of 20 accused persons who faced trial and three accused persons were finally convicted under Sections 148, 325/149 and 323/149 IPC. It may be relevant to note that one of the accused persons who were convicted, namely, Sardar Singh, expired during pendency of criminal revision before the High Court and qua him the revision was dismissed as having abated by order dated 20.04.2011. The judgment dated 12.11.2008 came to be confirmed on appeal being preferred by the present appellants before the learned 3rd Additional Sessions Judge, Vidisha by judgment dated 24.02.2009 and the criminal revision petition preferred at the instance of the appellants came to be dismissed under the impugned judgment dated 25.06.2018. Learned counsel for the appellants submits that the charge­ sheet was originally filed against 20 persons and all of them faced trial and 17 out of 20 accused persons were acquitted by the learned Trial Court by judgment and order dated 12.11.2008 and no further appeal/revision was preferred by the prosecution against the judgment of acquittal passed by the Trial Court against those 17 accused persons who faced trial and 3 out of 20 accused persons were convicted for offence under Sections 148, 325/149 and 323/149 IPC and it is not the case of the prosecution that there were other unnamed/unknown persons who could not be traced/charged other than the persons who faced trial. Counsel for the appellants submits that ingredients of Section 149 of an unlawful assembly that this membership must be five or more and in the instant case out of 20 accused persons who faced trial, three have been convicted by the learned Trial Court under the judgment dated 12.11.2008 under Sections 148, 325/149 and 323/149 IPC and the essential condition of unlawful assembly is that it must be of five or more persons, as contemplated under Section 141 IPC. Taking assistance thereof, counsel submits that the conviction under the impugned judgment of the appellants under Sections 325 with the aid of Section149 IPC is unsustainable in law. Counsel for the respondent, while supporting the judgment impugned submits that 20 persons were charge­sheeted who faced trial and thus merely because final conviction was of three accused persons under Sections 325 with the aid of Section 149 IPC, the requirement of Section 141 which contemplates unlawful assembly of five or more persons is being completely meted out and after the matter has been examined by the Court below on merits upholding conviction of the present appellants, it needs no interference by this Court. We have heard counsel for the parties and with their assistance perused the material placed on record. The legal position in regard to essential ingredients of an offence referred to in Section 149 are not in doubt. Section 149 prescribes for vicarious or constructive criminal liability for all members of an unlawful assembly where an offence is committed by any member of such an unlawful assembly in prosecution of the common object of that assembly or such as the members of that assembly knew to be likely to be committed in prosecution of that object. It may be noticed that the essential ingredients of Section 149 are that the offence must have been committed by any member of an unlawful assembly, and Section 141 makes it clear that it is only where five or more persons constituted an assembly that an unlawful assembly is born, provided, of course, the other requirements of the said section as to the common object of the persons composing that assembly are satisfied. To say in other words, it is an essential condition of an unlawful assembly that its membership must be five or more. At the same time, it may not be necessary that five or more persons necessarily be brought before the Court and convicted. Less than five persons may be charged under Section 149 if the prosecution case is that the persons before the Court and other numbering in all more than five composed an unlawful assembly, these others being persons not identified and un­ named. However, in the instant case, the persons are specifically named by the complainant and against them, after the investigation, charge­sheet was filed and all the 20 accused persons faced trial. It was not the case of the prosecution that there are other unnamed or unidentified persons other than the one who are charge­sheeted and faced trial. When the other co­accused persons faced trial and have been given benefit of doubt and have been acquitted, it would not be permissible to take the view that there must have been some other persons along with the appellant in causing injuries to the victim. In the facts and circumstances, it was as such not permissible to invoke Section The appellants may be held responsible for the offence, if any, which could be shown to have been committed by them with regard to the participation of others but that was not the case of the prosecution. In the given facts and circumstances, in our considered view, the conviction of the present appellants under Section 325 with the aid of Section 149 IPC at least could not have been invoked. That apart, the appellants have also undergone three months of substantive sentence during pendency of trial/appeal before the Courts below. Consequently, the appeal succeeds and is accordingly allowed. The judgment of the Trial Court dated 12.11.2008 convicting the appellants under Sections 148, 325/149 and 323/149 IPC, which came to be confirmed by the High Court under its revisional jurisdiction in Criminal Revision No.156/2009 is hereby quashed and set aside. Pending application(s), if any, shall stand disposed of. Petition(s) for Special Leave to Appeal (Crl.) No(s). 6530/2018 (Arising out of impugned final judgment and order dated 25-06-2018 in CRLR No. 156/2009 passed by the High Court Of M.P At Gwalior) Date : 05-01-2022 This matter was called on for hearing today. UPON hearing the counsel the Court made the following Leave granted. The appeal is allowed in terms of the signed order. Pending application(s), if any, shall stand disposed of.
The Supreme Court has noted that someone cannot be found guilty under Section 149 of India's criminal law (which is about being part of an illegal gathering) if the other people accused with them have been found not guilty. This makes the total number of people in the supposed illegal group fewer than five, and there are no unknown accused people involved in the case. Two judges, Justices Ajay Rastogi and AS Oka, were reviewing a challenge to a criminal case. This challenge was against a decision made by the Madhya Pradesh High Court on June 25, 2018. The High Court had agreed with the earlier decision that the people appealing were guilty of causing serious injury (under Section 325) while being part of an illegal gathering (under Section 149 of India's criminal law). They were sentenced to one year of hard labor in prison and a fine of 500 Rupees, with an extra month in prison if they couldn't pay the fine. Factual Background Official charges were filed against the people now appealing and 18 other accused individuals. These charges included various sections of India's criminal law, such as 148, 294, 341/149, 325/149 (for two different incidents), 323/149 (for four different incidents), 324/149, and 427/149. On November 12, 2008, the first court to hear the case found the appellants guilty under Sections 148, 325/149, and 323/149 of this law. Out of the 20 people who were officially accused and went to court, the first court found 17 of them not guilty. It only found 3 people guilty. A higher-level judge (the Sessions Judge) later confirmed these guilty verdicts, and then the High Court also confirmed them by rejecting the appellants' request for a review of their case. One of the people who had been found guilty later died. So, the two remaining people who were found guilty went to the Supreme Court to challenge their conviction. Submission of Counsels The lawyer for the people appealing told the court that charges were first filed against 20 individuals, and all of them went to court. On November 12, 2008, the first court found 17 of these 20 people not guilty. The lawyer also pointed out that the government's lawyers (the prosecution) did not appeal or ask for a review of these not-guilty verdicts for those 17 people. The lawyer further argued that only 3 out of the 20 accused were found guilty under Sections 148, 325/149, and 323/149 of the criminal law. Importantly, the government's lawyers never claimed that there were other unknown or unnamed people involved who weren't identified or charged, besides the ones who actually went to trial. To argue that the guilty verdict was not legally valid, the lawyer referred to Section 149 of India's criminal law. The lawyer stated that in this case, only three out of 20 accused people were found guilty. However, the basic requirement for an "unlawful assembly" (illegal gathering) is that it must involve five or more people, as outlined in Section 141 of the same law. The lawyer for the government argued that 20 people were initially charged and went to trial. Therefore, even though only three people were ultimately found guilty of causing injury with the help of Section 149, the rule in Section 141 that an illegal gathering must have five or more people was still fully met because 20 people were involved at the start. Supreme Court's Analysis The judges agreed with the appeal. They also explained the key parts of Section 149 of India's criminal law, stating: "It's important to know that for Section 149 to apply, the crime must have been committed by someone who was part of an illegal gathering. Section 141 makes it clear that an illegal gathering only comes into being when five or more people form it. This is true as long as they also shared a common illegal goal, as that section requires. In simpler terms, an illegal gathering must always have five or more members." "However, it is not always necessary for five or more people to actually be brought to court and found guilty. Fewer than five people can still be charged under Section 149 if the government's lawyers argue that the people in court, along with other unknown and unnamed individuals, together made up an illegal gathering of more than five members." The Court then said: "However, in this particular case, the people involved were clearly named by the person who complained. After the police investigation, charges were filed, and all 20 accused people went to court. The government's lawyers did not claim that there were any other unnamed or unknown people involved besides those who were charged and went to trial. Since the other people accused with them were found not guilty due to a lack of strong evidence, it would not be right to assume that there must have been other people with the appellants who hurt the victim. Because of these specific facts and circumstances, it was therefore not allowed to use Section 149 of India's criminal law."
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1. The present petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 seeking quashing of the order dated 18.09.2018 passed by the Metropolitan Magistrate-06, New Delhi, Patiala House Courts, Delhi, whereby cognizance was taken in pursuance of charge sheet dated 04.12.2017 filed in FIR no. 509/2015 under Sections 447/506/420/120B IPC registered at P.S. South Campus. 2. The petitioner has challenged the impugned order dated 18.09.2018 on the grounds as mentioned in para 3 of the petition. 3. Issue notice. Mr. Raghuvinder Varma, Additional Public Prosecutor accepts notice on behalf of the respondent no.1. 4. The counsel for the petitioner argued that the impugned order had been passed in the cryptic manner and without application of judicial mind. It is also not mentioned in the impugned order regarding which offences, the cognizance was taken by the Trial Court and the impugned order is liable to be set aside. 5. FIR no. 509/2015 dated 06.09.2015 under Sections 420/467/471/120B IPC was got registered at P.S. South Campus, Delhi on the basis of complaint made by Vanita Vohra. After completion of investigation, the charge sheet was filed for the offences punishable under Sections 47/506/420/120B IPC. The Trial Court at the time of taking the cognizance on the basis of charge sheet passed the following order:- “ Counsel for the complainant undertakes to file vakalatnama during the course of the day. Heard. Record perused. 6. Section 190 empowers a Magistrate to take cognizance of an offence in certain circumstances. Sub-section (1) reads as under:- Cognizance of offences by Magistrates.-1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under Sub-section (2), may take cognizance of any offence- (a) upon receiving a complaint of facts which constitute such (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. 7. Cognizance implies application of judicial mind by the Magistrate to the facts as stated in a complaint or a police report or upon information received from any person that an offence has been committed. It is the stage when a Magistrate applies his mind to the suspected commission of an offence. The cognizance of an offence is stated to be taken once the Magistrate applies his mind to the offence alleged and decides to initiate proceeding against the proposed accused. The Court before taking cognizance needs to be satisfied about existence of prima facie case on basis of material collected after conclusion of investigation. The magistrate has to apply his mind to the facts stated in the police report or complaint before taking cognizance for coming to the conclusion that there is sufficient material to proceed with the case. Taking of cognizance is a judicial function and judicial orders cannot be passed in a mechanical or cryptic manner. It is not only against the settled judicial norms but also reflects lack of application of judicial mind to the facts of the case. It is equally important to note that at time of taking cognizance a Magistrate is not required to consider the defence of the proposed accused or to evaluate the merits of the material collected during investigation. It is not necessary to pass a detail order giving detailed reasons while taking cognizance. The order taking cognizance should only reflect application of judicial mind. 8. In R.R. Chari V State of Uttar Pradesh, 951CriLJ 775 the question before the Supreme Court was as to when cognizance of the offence could be said to have been taken by the Magistrate under Section 190 of the Code. It was observed as under:- It is clear from the wording of the section that the initiation of the proceedings against a person commences on the cognizance of the offence by the Magistrate under one of the three contingencies mentioned in the section. The first contingency evidently is in respect of non-cognizable offences as defined in the Criminal Procedure Code on the complaint of an aggrieved person. The second is on a police report, which evidently is the case of a cognizable offence when the police have completed their investigation and come to the Magistrate for the issue of a process. The third is when the Magistrate himself takes notice of an offence and issues the process. It is important to remember that in respect of any cognizable offence, the police, at the initial stage when they are investigating the matter, can arrest a person without obtaining an order from the Magistrate. Under Section 167(b) of the Criminal Procedure Code the police have of course to put up the person so arrested before a Magistrate within 24 hours and obtain an order of remand to police custody for the purpose of further investigation, if they so desire. But they have the power to arrest a person for the purpose of investigation without approaching the Magistrate first. Therefore in cases of cognizable offence before proceedings are initiated and while the matter is under investigation by the police the suspected person is liable to be arrested by the police without an order by the Magistrate. 9. The Supreme Court in Fakhruddin Ahmad V State of Uttaranchal, (2008) 17 SCC 157 also held as under:- Nevertheless, it is well settled that before a Magistrate can be said to have taken cognizance of an offence, it is imperative that he must have taken notice of the accusations and applied his mind to the allegations made in the complaint or in the police report or the information received from a source other than a police report, as the case may be, and the material filed therewith. It needs little emphasis that it is only when the Magistrate applies his mind and is satisfied that the allegations, if proved, would constitute an offence and decides to initiate proceedings against the alleged offender, that it can be positively stated that he has taken cognizance of the offence. Cognizance is in regard to the offence and not the offender. 10. The Supreme Court also observed in S.K. Sinha, Chief Enforcement Officer V Videocon International Ltd., (2008) 2 SCC 492 held as under:- The expression 'cognizance' has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means 'become aware of' and when used with reference to a Court or a Judge, it connotes to take notice of ‘judicially’. It indicates the point when a Court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone. 'Taking cognizance' does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance is taken prior to commencement of criminal proceedings. Taking of cognizance is thus a sine qua non or condition precedent for holding a valid trial. Cognizance is taken of an offence and not of an offender. Whether or not a Magistrate has taken cognizance of an offence depends on the facts and circumstances of each case and no rule of universal application can be laid down as to when a Magistrate can be said to have taken cognizance. 11. The impugned order dated 18.09.2018 is cryptic, non-speaking and is passed without application of judicial mind. The impugned order has passed in casual and cursory manner and even the offences regarding which the cognizance was taken are not mentioned. Accordingly the impugned order dated 18.09.2018 is set aside. The Trial Court is directed to re-consider the issue of taking the cognizance afresh and to pass the speaking order on the basis of charge sheet. 12. Copy of this order to be sent to the concerned Trial Court for information and compliance. 13. The petition along with pending applications, if any, stands disposed
The Delhi High Court said that when a judge "takes cognizance," meaning they officially acknowledge a crime to start a case, it's a serious job. Judges cannot make these decisions without careful thought or in a way that is unclear. Justice Sudhir Kumar Jain also said that when a judge decides to "take cognizance," they don't have to consider the suspect's defense yet. They also don't need to fully judge the evidence gathered during the police investigation. The judge doesn't have to write a very detailed order explaining all their reasons. However, the order *must* show that the judge carefully considered the facts. The Court explained that "taking cognizance" means the judge carefully considers the facts presented in a formal complaint, a police report, or information from someone else, to see if a crime has occurred. It's the point when the judge starts to think about whether a suspected crime really happened. It further stated that a judge "takes cognizance" of a crime once they have thought about the alleged offense and decided to start legal proceedings against the person accused. It was also noted that before a court can "take cognizance," it must be convinced there is enough initial evidence, known as a "prima facie case." This evidence comes from what the police gathered after finishing their investigation. The Court added that the judge must carefully consider the facts in the police report or complaint before "taking cognizance." This is to decide if there is enough evidence to move ahead with the case. "Taking cognizance" is a judge's duty, and court orders cannot be made carelessly or in a way that is hard to understand. Doing so goes against established legal rules and shows that the judge did not fully consider the facts of the case. The Court was reviewing a request to cancel an order from September 18, 2018. This order was made by a local judge, called a Metropolitan Magistrate. In that order, the judge had "taken cognizance" based on a formal accusation (a "charge sheet") filed by the police. The accusation was part of a First Information Report (FIR) for crimes like trespassing, criminal intimidation, cheating, and criminal conspiracy under specific laws. The lawyer for the person who asked for the review argued that the judge's original order was unclear and showed no careful thought. The lawyer pointed out that the judge did not even state which specific crimes they were "taking cognizance" of. Because of these problems, the lawyer believed the original order should be canceled. The High Court decided that the original order was indeed unclear and did not explain its reasoning. It concluded that the order was made without careful judicial thought and was done in a hasty and careless way. The judges also noticed that the original order did not even name the specific crimes for which the judge had "taken cognizance." Therefore, the High Court canceled the original order from September 18, 2018. It instructed the lower court (the Trial Court) to rethink the matter of "taking cognizance" from the beginning. The lower court must then issue a new, clear order that fully explains its reasons, based on the charge sheet. The request was then officially closed.
1. The present petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 seeking quashing of the order dated 18.09.2018 passed by the Metropolitan Magistrate-06, New Delhi, Patiala House Courts, Delhi, whereby cognizance was taken in pursuance of charge sheet dated 04.12.2017 filed in FIR no. 509/2015 under Sections 447/506/420/120B IPC registered at P.S. South Campus. 2. The petitioner has challenged the impugned order dated 18.09.2018 on the grounds as mentioned in para 3 of the petition. 3. Issue notice. Mr. Raghuvinder Varma, Additional Public Prosecutor accepts notice on behalf of the respondent no.1. 4. The counsel for the petitioner argued that the impugned order had been passed in the cryptic manner and without application of judicial mind. It is also not mentioned in the impugned order regarding which offences, the cognizance was taken by the Trial Court and the impugned order is liable to be set aside. 5. FIR no. 509/2015 dated 06.09.2015 under Sections 420/467/471/120B IPC was got registered at P.S. South Campus, Delhi on the basis of complaint made by Vanita Vohra. After completion of investigation, the charge sheet was filed for the offences punishable under Sections 47/506/420/120B IPC. The Trial Court at the time of taking the cognizance on the basis of charge sheet passed the following order:- “ Counsel for the complainant undertakes to file vakalatnama during the course of the day. Heard. Record perused. 6. Section 190 empowers a Magistrate to take cognizance of an offence in certain circumstances. Sub-section (1) reads as under:- Cognizance of offences by Magistrates.-1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under Sub-section (2), may take cognizance of any offence- (a) upon receiving a complaint of facts which constitute such (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. 7. Cognizance implies application of judicial mind by the Magistrate to the facts as stated in a complaint or a police report or upon information received from any person that an offence has been committed. It is the stage when a Magistrate applies his mind to the suspected commission of an offence. The cognizance of an offence is stated to be taken once the Magistrate applies his mind to the offence alleged and decides to initiate proceeding against the proposed accused. The Court before taking cognizance needs to be satisfied about existence of prima facie case on basis of material collected after conclusion of investigation. The magistrate has to apply his mind to the facts stated in the police report or complaint before taking cognizance for coming to the conclusion that there is sufficient material to proceed with the case. Taking of cognizance is a judicial function and judicial orders cannot be passed in a mechanical or cryptic manner. It is not only against the settled judicial norms but also reflects lack of application of judicial mind to the facts of the case. It is equally important to note that at time of taking cognizance a Magistrate is not required to consider the defence of the proposed accused or to evaluate the merits of the material collected during investigation. It is not necessary to pass a detail order giving detailed reasons while taking cognizance. The order taking cognizance should only reflect application of judicial mind. 8. In R.R. Chari V State of Uttar Pradesh, 951CriLJ 775 the question before the Supreme Court was as to when cognizance of the offence could be said to have been taken by the Magistrate under Section 190 of the Code. It was observed as under:- It is clear from the wording of the section that the initiation of the proceedings against a person commences on the cognizance of the offence by the Magistrate under one of the three contingencies mentioned in the section. The first contingency evidently is in respect of non-cognizable offences as defined in the Criminal Procedure Code on the complaint of an aggrieved person. The second is on a police report, which evidently is the case of a cognizable offence when the police have completed their investigation and come to the Magistrate for the issue of a process. The third is when the Magistrate himself takes notice of an offence and issues the process. It is important to remember that in respect of any cognizable offence, the police, at the initial stage when they are investigating the matter, can arrest a person without obtaining an order from the Magistrate. Under Section 167(b) of the Criminal Procedure Code the police have of course to put up the person so arrested before a Magistrate within 24 hours and obtain an order of remand to police custody for the purpose of further investigation, if they so desire. But they have the power to arrest a person for the purpose of investigation without approaching the Magistrate first. Therefore in cases of cognizable offence before proceedings are initiated and while the matter is under investigation by the police the suspected person is liable to be arrested by the police without an order by the Magistrate. 9. The Supreme Court in Fakhruddin Ahmad V State of Uttaranchal, (2008) 17 SCC 157 also held as under:- Nevertheless, it is well settled that before a Magistrate can be said to have taken cognizance of an offence, it is imperative that he must have taken notice of the accusations and applied his mind to the allegations made in the complaint or in the police report or the information received from a source other than a police report, as the case may be, and the material filed therewith. It needs little emphasis that it is only when the Magistrate applies his mind and is satisfied that the allegations, if proved, would constitute an offence and decides to initiate proceedings against the alleged offender, that it can be positively stated that he has taken cognizance of the offence. Cognizance is in regard to the offence and not the offender. 10. The Supreme Court also observed in S.K. Sinha, Chief Enforcement Officer V Videocon International Ltd., (2008) 2 SCC 492 held as under:- The expression 'cognizance' has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means 'become aware of' and when used with reference to a Court or a Judge, it connotes to take notice of ‘judicially’. It indicates the point when a Court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone. 'Taking cognizance' does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance is taken prior to commencement of criminal proceedings. Taking of cognizance is thus a sine qua non or condition precedent for holding a valid trial. Cognizance is taken of an offence and not of an offender. Whether or not a Magistrate has taken cognizance of an offence depends on the facts and circumstances of each case and no rule of universal application can be laid down as to when a Magistrate can be said to have taken cognizance. 11. The impugned order dated 18.09.2018 is cryptic, non-speaking and is passed without application of judicial mind. The impugned order has passed in casual and cursory manner and even the offences regarding which the cognizance was taken are not mentioned. Accordingly the impugned order dated 18.09.2018 is set aside. The Trial Court is directed to re-consider the issue of taking the cognizance afresh and to pass the speaking order on the basis of charge sheet. 12. Copy of this order to be sent to the concerned Trial Court for information and compliance. 13. The petition along with pending applications, if any, stands disposed
The Delhi High Court said that when a judge "takes cognizance," meaning they officially acknowledge a crime to start a case, it's a serious job. Judges cannot make these decisions without careful thought or in a way that is unclear. Justice Sudhir Kumar Jain also said that when a judge decides to "take cognizance," they don't have to consider the suspect's defense yet. They also don't need to fully judge the evidence gathered during the police investigation. The judge doesn't have to write a very detailed order explaining all their reasons. However, the order *must* show that the judge carefully considered the facts. The Court explained that "taking cognizance" means the judge carefully considers the facts presented in a formal complaint, a police report, or information from someone else, to see if a crime has occurred. It's the point when the judge starts to think about whether a suspected crime really happened. It further stated that a judge "takes cognizance" of a crime once they have thought about the alleged offense and decided to start legal proceedings against the person accused. It was also noted that before a court can "take cognizance," it must be convinced there is enough initial evidence, known as a "prima facie case." This evidence comes from what the police gathered after finishing their investigation. The Court added that the judge must carefully consider the facts in the police report or complaint before "taking cognizance." This is to decide if there is enough evidence to move ahead with the case. "Taking cognizance" is a judge's duty, and court orders cannot be made carelessly or in a way that is hard to understand. Doing so goes against established legal rules and shows that the judge did not fully consider the facts of the case. The Court was reviewing a request to cancel an order from September 18, 2018. This order was made by a local judge, called a Metropolitan Magistrate. In that order, the judge had "taken cognizance" based on a formal accusation (a "charge sheet") filed by the police. The accusation was part of a First Information Report (FIR) for crimes like trespassing, criminal intimidation, cheating, and criminal conspiracy under specific laws. The lawyer for the person who asked for the review argued that the judge's original order was unclear and showed no careful thought. The lawyer pointed out that the judge did not even state which specific crimes they were "taking cognizance" of. Because of these problems, the lawyer believed the original order should be canceled. The High Court decided that the original order was indeed unclear and did not explain its reasoning. It concluded that the order was made without careful judicial thought and was done in a hasty and careless way. The judges also noticed that the original order did not even name the specific crimes for which the judge had "taken cognizance." Therefore, the High Court canceled the original order from September 18, 2018. It instructed the lower court (the Trial Court) to rethink the matter of "taking cognizance" from the beginning. The lower court must then issue a new, clear order that fully explains its reasons, based on the charge sheet. The request was then officially closed.
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Secretary to Government of Tamil Nadu 2. The Additional Director General of Prison 3. The Deputy Inspector General of Prisons the Secretary to the Government of India Ministry of Home Affairs, North Block Prayer: Petition filed under Article 226 of the Constitution of India praying for a writ of habeas corpus directing the respondents to grant leave for six weeks to her husband, and consequently allow her husband to take the treatment, the detenue, Siddhiqe Ali @ Sulthan, S/o.Dheen, Convict No.7369, aged about 40 years, detained at Palayamkottai Central Prison. For the Petitioner : Mr.R.Narayanan For the Respondents : Mr.Shunmugasundaram A Division Bench passed an order on 25.2.2019 referring the following two questions for consideration by a Larger Bench: (i) Whether the denial of conjugal rights to a convict prisoner would amount to denial of such a right to his/ her spouse and thereby, violative of Article 21 of (ii) Whether the State can be directed to favourably consider the request of a convict prisoner for emergency leave or ordinary leave for the purpose of having conjugal relationship with his/her spouse, though the Tamil Nadu Suspension of Sentence Rules, 1982 do not envisage this? 2. The reference of the questions has been in view of the order of Division Bench dated 11.1.2018 granting temporary leave for a period of two weeks to the convict. The said petition was preferred by Meharaj, wife of the detenu Siddhiqe Ali @ Sulthan, to grant leave to the convict for 30 days to have conjugal relationship, as they were not having child from the wedlock and the petitioner was advised to have infertility treatment along with her husband. The Division Bench in the said order gave general directions to the State to favourably consider the request of the prisoners to have conjugal relationship with their spouse. The prayer made in the habeas corpus petition was accepted granting temporary leave to the convict for a period of two weeks from 20.1.2018 to 3.2.2018. For the said period, the sentence was suspended and, accordingly, respondents 3 and 4 therein were directed to release the husband of the petitioner subject to certain conditions. Aggrieved by the said order dated 11.1.2018, the State filed Crl.M.P.(MD) No.832 of 2019 seeking review the said order. 3. While the application was pending, H.C.P. (MD) No.365 of 2018 was filed by the petitioner seeking six weeks leave to her husband by relying upon the order dated 11.1.2018. The Division Bench, vide the order of reference dated 25.2.2019, noticed that there is no provision in the Tamil Nadu Suspension of Sentence Rules, 1982 (for brevity, "the 1982 Rules") for grant of emergency or ordinary leave for a convict to have conjugal relationship with spouse. Under those circumstances, the matter was referred to the Larger Bench to answer the questions framed and quoted above. 4. Before answering the questions framed by the Division Bench, it would be appropriate to refer to the brief facts of this case. The petitioner's husband, Siddhiqe Ali @ Sulthan, was convicted to life imprisonment on commission of offences under Sections 148, 302, 201 and 120B of the Indian Penal Code. The order of the trial court was confirmed by the High Court in Criminal Appeal Nos.1736 and 1807 of 2003 and also by the Apex Court in Criminal Appeal Nos.2118 and 2119 of 2009. 5. The petitioner's husband and other persons are alleged to have committed murder and hence a case was registered bearing Crime No.59 of 1999. After getting bail in the above crime number, the petitioner's husband is stated to have been involved in the Coimbatore Bomb Blast case, apart from many other cases in Tamil Nadu and Kerala. The details of those cases have been given in the affidavit filed by the respondents and are quoted hereunder for 1 S.C.No.140 of U/s 302 IPC Life Imprisonment U/s 120(B) IPC r/w Convicted and section.3 of Explosive sentenced to undergo Substance Act 1908 R.I. for 8 years. U/s.120(B) IPC r/w 4(a) Convicted and of Explosive Substances sentenced to undergo Act 1908 R.I. for 6 years. on the file of U/s.120(B) IPC r/w 4(b) Convicted and District and of Explosive Substances sentenced to undergo Sessions Judge, Act 1908 R.I. for 6 years. Sessions Court for U/s.120(B) IPC r/w 5 r/w Convicted and 2 Exclusive Trial of Sec.6 of Explosive sentenced to undergo Bomb Blast Cases, Substances Act 1908 R.I. for 5 years. Poonamallee. U/s.120(B) IPC r/w 307 Convicted and U/s.120(B) IPC r/w Sec. Convicted and 4 of TNPPL (L&D) Act sentenced to undergo 1992 R.I. for 3 years. U/s.120(B) IPC r/w Sec. Convicted and 9-B(1)(b) Explosive sentenced to undergo Substances Act r/w 141 R.I. for 2 years against of Explosive Substances the 1st charge. U/s 4(b) of Explosive Convicted and Substances Act 1908 sentenced to undergo the 2nd charge. U/s 4(1)(a) of Explosive Convicted and Substances Act 1908 sentenced to undergo the 4th charge. the 5th charge. Explosive Substances Act sentenced to undergo U/s.4(a), 3r/w 6 of Convicted and Explosive Substances Act sentenced to undergo the 7th charge. 3 S.C.No.2 of 2000 U/s.307 IPC He was sentenced to Sessions Judge of imprisonment for 7 Bomb Blast Court, years. 6. In view of the involvement of the petitioner's husband in the Bomb Blast Case and other offences, he was held not entitled to remission under the 1982 Rules and even under the provisions of the Code of Criminal Procedure, 1973. The petitioner's husband is also said to have committed prison offence and sustained punishment for it. It is also averred that the further appeals filed by private party against the judgment in the Coimbatore Bomb Blast cases are pending consideration before the Apex Court. 7. The factual matrix aforesaid has been taken into consideration by the respondents to deny leave. It is, however, a fact that this court vide order dated 11.1.2018 made in H.C.P.(MD) No.1837 of 2017 granted leave to the petitioner's husband for a period of two weeks with liberty to approach the court or the jail authorities seeking extension of time by another two weeks in case further treatment is required based on the advise of the doctor. A fresh writ petition was filed by the petitioner to seek six weeks' leave to her husband on the same ground as was urged earlier while pursuing the first writ petition. The petitioner did not file an application for extension of the period of leave despite liberty given by this court in its order dated 11.1.2018. The Division Bench, while hearing the fresh writ petition, referred the aforesaid two questions for consideration by the Larger Bench. 8. To address the questions framed by the Division Bench, we need to first refer to the relevant provisions of the 1982 Rules. Rules 3, 6, 7, 20 to 25 of the 1982 Rules are quoted hereunder for "3. Leave is not a right.- Leave cannot be claimed as a matter of right. It is a concession granted to the prisoner. 6. Grounds for the grant of emergency leave.- Emergency leave may be granted for attending death or serious illness of father, mother, wife, husband, son, daughter, full brother or full sister, as the case may be, or the wedding of the prisoner or son, daughter, full brother or full sister of the prisoner, as the case may be, and for having delivery outside the prison in the case of female pregnant prisoners. 7. Eligibility for emergency leave.- No emergency leave shall be granted to a prisoner unless,- (i) he has been sentenced by a Court in this State to imprisonment for a term or imprisonment for life for an offence against any law other than a law relating to a matter to which the executive power of the (ii) his conduct in prison has been satisfactory; (iii) female pregnant prisoner for having delivery outside the prison provided who are not constituting high security risks or of cases of equivalent grade descriptions. 20. Grounds for the grant of ordinary leave.- The grounds for the grant of ordinary leave to a (i) to make arrangements for the livelihood of his family and for the settlement of life after release; (ii) To make arrangements for the admission of the children in the school or college; (iii) construction or repairing the homestead; (iv) to make arrangements or to participate in the marriage of the prisoner, sons, daughters, full brother or full sisters, as the case may be, of the (v) settling family disputes like partition, etc; (vi) agricultural operations like sowing, harvesting, (vii) any other extraordinary reasons; and (viii) in case of female pregnant prisoners, for having delivery outside the prison. 21. Non-eligibility for ordinary leave.- The following categories of prisoners shall not be eligible (a) Offenders classified as habituals; (b) Prisoners sentenced under sections 392 to 402 of the Indian Penal Code (Central Act 45 of 1860); (c) Prisoners where presence is considered dangerous or prejudicial to public peace and (d) Prisoners who are considered dangerous or who are involved in the following prison offences:- (6) instigation to serious violations of prison (e) Prisoners committed to prisons in default of furnishing security to keep the peace or be of good (f) Prisoners suffering from unsoundness of mind or contagious diseases. In such cases the eligibility shall be decided in accordance with the opinion of the (g) female pregnant prisoners, for having delivery outside the prison, constituting high security risk or cases of equivalent grave descriptions. 22. Eligibility for ordinary leave.- (1) No prisoner shall be granted ordinary leave unless he has been sentenced by a Court in this State to imprisonment for a term or imprisonment for life for an offence against any law other than a law relating to a matter to which the executive power of the Union Government extends and he has completed three years of imprisonment from the date of initial imprisonment. (2) The period of ordinary leave shall not exceed one month at a time unless it is extended by (3) The prisoner shall be granted the second spell of leave not exceeding one month after the completion of two years of imprisonment from the date on which he returns from the last ordinary leave. (4) In cases of prisoners who have got a balance of three years to serve ordinary leave not exceeding one month for each of three years, the year being calculated from the date of his return to prison from last leave, shall be granted so as to enable them to make arrangements for settling the family life after release. (1) The petition for ordinary leave shall be submitted by the prisoner or by a relative of said prisoner to the Deputy Inspector-General of Prisons concerned direct or sent through the Superintendent Prison where the prisoner to whom leave is to be granted is confined. (2) Each petition for ordinary leave shall be accompanied with a statement of the names of two sureties who are willing to execute the bond for the prisoner's release on leave and take care of the prisoner during the period of leave. In the petition, it shall be stated, among other things, the names and addresses of the prisoner's relatives with whom he wishes to stay during his leave period. In case of female pregnant prisoner, for having delivery outside the prison, the petition for ordinary leave shall be submitted along with Medical Certificate or report of the Prison Medical Officer or Assistant Surgeon in respect of probable date of delivery. 24. Process of petition.- All petitions for the grant of ordinary leave submitted to the Deputy Inspector General of Prisons or to the Superintendent of Prison shall be referred to Probation Officer concerned for reports on the advisability of the ordinary leave of the prisoner in question. The Probation Officer shall personally enquire into and send his report to the Deputy Inspector General of Prisons or to the Superintendent in Form I. If the Probation Officer feels that the release on leave of a prisoner is likely to involve the local Sub-Inspector of Police, solely with a view to avoid any breach of peace and record the views of the Sub-Inspector of Police in the said Form. In respect of other cases where there is no likelihood of breach of peace, the Probation Officer shall send his report direct to the Deputy Inspector General of Prisons or to the Superintendent of Prisons without consulting the local Sub-Inspector of Police. Where the petition has been submitted to the Superintendent of Prisons, he shall forward the petition along with the records such as the Normal Role of the prisoner, check memorandum in Form II, statement showing the details of leave availed by the prisoner from the date of his conviction, a statement showing the offences committed by the prisoner and punishment awarded and the probation officer's report expeditiously to the Deputy Inspector-General of Prisons. The Deputy Inspector General of Prisons may, on consideration of the petition and reports, pass such orders as he deems fit. 25. General conditions governing for grant of emergency and ordinary leave.- The following conditions shall, invariably, be laid down while granting leave in addition to such other conditions, if any, specified by the Government, Inspector-General of Prisons or the Deputy Inspector-General of Prisons or the Superintendent of Prisons, as the case may be, as may be deemed necessary:- (i) that the prisoner shall execute a surety bond in Form II for rupees five hundred with two sureties for (ii) that he shall report at the Police station daily (iii) that the prisoner shall reside at the place specified by the Superintendent of Prisons or the Deputy Inspector-General of Prisons or the Government, as the case may be, and shall not go beyond the limits of that place; (iv) that the prisoner shall be of good behaviour and shall not commit any offence during his leave; (v) that the prisoner shall not associate with bad characters or lead a dissolute life; (vi) that the prisoner shall be liable to be recalled immediately to prison in case he violates any of the (vii) that the prisoner shall surrender himself to the Superintendent of the Prison on expiry of leave (viii) that in case of female pregnant prisoners, for having delivery outside the prison, she shall reside at the place of delivery proposed by her." 9. As per Rule 3 of the 1982 Rules, leave cannot be claimed as a matter of right, while Rule 6 of the 1982 Rules permits emergency leave for attending death or serious illness of the family members referred to therein or even for the wedding of the prisoner or family members stated therein. Rule 7 of the 1982 Rules refers to the eligibility for emergency leave, while Rule 20 of the 1982 Rules refers to the grant of ordinary leave. Rule 21 of the 1982 Rules stipulates the categories of prisoners not eligible for ordinary leave, while Rule 22 of the 1982 Rules prescribes the eligibility for grant of ordinary leave. 10. In the framework of the 1982 Rules, referred to above, we need to answer the moot question referred to the Larger Bench, namely, whether the denial of conjugal rights to a convict would amount to denial of rights guaranteed under Article 21 of the Constitution of India. Article 21 of the Constitution of India is quoted herein under for ready reference: "21. Protection of life and personal liberty.- No person shall be deprived of his life or personal liberty except according to procedure established by law." Article 21 of the Constitution of India guarantees protection of life and personal liberty. 11. The question for our consideration is as to whether a convict, after the trial in the criminal case, can seek liberty for having conjugal relationship in reference to Article 21 of the Constitution of India. It is no doubt true that Article 21 of the Constitution of India guarantees protection of life and personal liberty, except according to law. In the instant case, the petitioner's husband was tried in a criminal case and has been convicted for life imprisonment. The habeas corpus petition was filed by the wife seeking grant of leave to her husband for a period of thirty days for having conjugal relationship. It is in view of the fact that no child was born from their wedlock and as per the opinion of the doctors, the convict and the petitioner have to undergo infertility treatment. 12. The facts of this case show that earlier the petitioner's husband was granted leave for a period of two weeks for the purpose of undergoing infertility treatment. The petitioner's husband availed such leave. Thereafter, the present writ petition was filed seeking leave again for six weeks to the petitioner's husband for undergoing infertility treatment. The aforesaid aspect has to be considered by the Division Bench as we are answering the questions referred to us. 13. The issue of conjugal rights of the convict in reference to Article 21 of the Constitution of India was considered threadbare by the Punjab and Haryana High Court in the case of Jasvir Singh v. State of Punjab, 2015 Cri LJ 2282. In the said case, a Single Bench of the Punjab and Haryana High Court had made a reference to the provisions of the Prisons Act, 1894 and the judgment of the Apex Court in the case of Sunil Batra v. Delhi Administration, (1978) 4 SCC 494. A consideration was also made in reference to the international perspective and the view of the foreign courts' on conjugal visits in prisons and artificial insemination. The writ petition was decided holding conjugal rights of the prisoner to be a fundamental right guaranteed under Article 21 of the Constitution of India. A similar view was expressed by the Patna High Court in the case of Rajeeta Patel v. State of Bihar and others, 2020 (4) 14. Before further addressing the issue, it would be relevant to analyze the meaning of the words "conjugal rights". Conjugal rights means the privilege to the husband and wife arising from the marriage, including mutual rights of companionship. The words aforesaid are commonly used when one of the partner denies the companionship to the other. In such circumstances, conjugal rights are sought to be enforced by the partner who had been denied such companionship. The enforcement of conjugal rights is invariably made by invoking the provisions of the Hindu Marriage Act, 1955. The words aforesaid have been imported even for the prisoner to have conjugal relationship with the spouse. 15. A convict has certain restrictions of visit, though taking into consideration the wide spectrum of Article 21 of the Constitution of India, the 1982 Rules have already been framed for suspension of sentence. The provisions of the 1982 Rules provide for grant of emergency leave to the accused not only to attend death or serious illness of father, mother, wife, husband, son, daughter, full brother or full sister, as the case may be, but even for wedding of the prisoner or son, daughter, full brother or full sister, and even for having delivery outside the prison in the case of female pregnant prisoners. Apart from the aforesaid, a provision for grant of ordinary leave also exists for a prisoner to make arrangements for the livelihood of his family and for settlement of life after release, apart from grant of leave to make arrangements for the admission of the children in school or college; construction or repairing the homestead; agricultural operations like sowing, harvesting, etc. In view of the above, we find Rules 6 and 20 of the 1982 Rules in consonance with Article 21 of the Constitution of 16. It is true that the 1982 Rules do not provide leave for having conjugal relationship with spouse. It is for the reason that if a provision for leave to have conjugal relationship is provided, the prisoner may ask for the leave invariably on that ground and, that too, time and again. It cannot, however, mean that under all circumstances except those specified in Rule 20(i) to (vi) and Rule 20(viii) of the 1982 Rules leave can be denied, rather Rule 20(vii) of the 1982 Rules provides for grant of leave for any other extraordinary reasons, which can be of the nature referred in this case, i.e., for undergoing infertility treatment. However, we need to take note of the fact that the leave on that ground cannot be sought time and again because the reference of the two questions to the Larger Bench is only for the reason that even after grant of leave on one occasion for undergoing infertility treatment, the second petition for leave on the same ground has been submitted. The liberty sought by the petitioner to beget the child by granting leave to her husband for undergoing infertility treatment was allowed by this court on an earlier occasion and, accordingly, we have to analyze the issue not only in reference to Article 21 of the Constitution of India, but by referring to the 1982 Rules and the judgments on the issue. 17. Rule 20(vii) of the 1982 Rules allows grant of ordinary leave to a prisoner on extraordinary reasons. The word "extraordinary" needs to be given meaning. It would be available to the convict to seek leave on extraordinary reasons. The meaning of the word "extraordinary" has not been given in the 1982 Rules. Thus, we are referring to the meaning of the word "extraordinary" from the Black's Law Dictionary, Tenth Edition, which is as under: 1. Beyond what is usual, customary, regular, or common <extraordinary measures>. 2. Of, relating to, or involving a degree of care, diligence, caution, or prudence that would be exercised by highly fastidious and thoughtful people, though falling short of any superhuman effort <extraordinary care>. 3. Of, relating to, or involving legal proceeding or procedure not normally required or resorted to <an extraordinary sitting of the court>. 4. Of, relating to, or involving an occurrence, esp. an incident or accident, that would not have been foreseeable to someone of normal prudence <an extraordinary deluge>. 5. Surpassing the common degree, measure or allotment <extraordinary acuity>. 6. Employed for an exceptional purpose or for a special occasion <envoy extraordinary>. In sense 6, extraordinary frequently functions as a postpositive adjective (as in the bracketed illustration). 7. Of, relating to, or involving a course of study or one or more lectures not considered part of the core curriculum but instead of secondary importance <an 18. As per the Oxford English Dictionary, Second Edition, Volume V, the word "extraordinary" means as under: "out of the usual or regular course or order; often in expressed opposition to ordinary. Of a kind not usually met with; exceptional; unusual; singular. Now with emotional sense, expressing astonishment, strong admiration or the contrary. Exceeding what is usual in amount, degree, 19. The word "extraordinary" read in conjunction with the word "reasons" makes it ample clear that the reasons should be beyond what is usual, regular or common. In other words, the reasons should be different from ordinary reasons and can be of exceptional nature. 20. The question for consideration would be as to whether the wife of the convict can seek leave to enable her and the convict husband undergo infertility treatment to beget a child and whether it would fall under the category of extraordinary reasons. 21. In the case on hand, it is evident from the facts narrated in the Division Bench order dated 11.1.2018 that leave was sought referring to extraordinary reasons and the Division Bench dealt with the issue in reference to the beliefs of psychologists and psychiatrists that, at times, denial of conjugal relationship may lead to frustration and tension, apart from ill-feelings and heart burnings. While concluding the order, the objection regarding the maintainability of the habeas corpus petition has also been dealt with. 22. We find that the prayer of the petitioner to undergo infertility treatment in a circumstance when the convict has no child from the wedlock forms an extraordinary reason for grant of leave. In view of the above, we find that the case of the petitioner was falling under Rule 20(vii) of the 1982 Rules. It is, however, necessary to clarify that the Rule aforesaid cannot be invoked in all situations. It can be granted to undergo infertility treatment, that too, for a convict having no child from the wedlock. If the convict has child or children from the wedlock, then to seek leave for infertility treatment or on similar ground would not fall in the definition of "extraordinary reasons". It is also that leave cannot be sought repeatedly on one and the same ground under the category of extraordinary reasons. If leave for having conjugal relationship is recognized to be a right under Article 21 of the Constitution of India, the prayer of similar nature can be made by the accused or his/her spouse time and again to have conjugal relationship. The observation aforesaid has been made in reference to the provisions of the Code of Criminal Procedure as well as the Prisons Act, 1894. A convict cannot enjoy all the liberties as are available to a common person, otherwise there would no difference between a law-abiding citizen and a law-violating prisoner. The aforesaid would not mean that prisoners do not have any right or liberty, rather we had recorded our finding that the 1982 Rules take care of Article 21 of the Constitution of India. A word of caution in regard to conjugal rights has been put so that the liberty, if any, may not be misused by the convict or the spouse, rather it is used for the purpose it is meant or required. 23. At this stage, we need to clarify that judgment of the Full Bench in The State v. Yesu, (2011) 2 LW (Crl.) 257 referred to by the Division Bench in its order dated 11.1.2018 is in reference to grant of parole, for which only an administrative instruction under Article 162 has been issued by the State of Tamil Nadu and, accordingly, it was held that neither the government nor any other statutory authority has power to grant parole in the absence of the rules or a statute. In our opinion, the finding recorded by the Full Bench in the case of Yesu (supra) does not in any manner affect the authorities to grant leave to the convict under the 1982 Rules by suspending the sentence for the period of leave. The Full Bench decision in the case of Yesu (supra), referred by the Division Bench in the order dated 11.1.2018 does not deal with the issue referred herein. 24. In view of the above, we need to answer the questions framed by the Division Bench. A conjugal right in common parlance is for maintaining marital status by husband and wife. The leave for a specific purpose which may be for undergoing infertility treatment, as such, may not be considered for having conjugal relationship in common parlance, but for extraordinary reason, thus we can safely hold that the 1982 Rules itself protect the rights of the prisoner guaranteed under Article 21 of the Constitution of India to the extent it is required. 25. If we hold that deprivation of conjugal right to a convict offends Article 21 of the Constitution of India, it would mean to give right to a convict for conjugal right, which in common parlance is for maintaining the marital relationship of husband and wife in continuity with companionship. The same cannot be permitted for a convict, as a difference has to be made between the law abider and violator. If the case in hand is also taken note of, the petitioner's first petition was allowed with grant of leave for two weeks for undergoing infertility treatment and immediately after availing it, the second petition was filed in continuity. The facts aforesaid cannot be ignored by the court because after the judgment by the court holding conjugal right to be a fundamental right, the convict would come out with an application to secure his fundamental rights guaranteed under Article 21 of the Constitution of India without any restraint and, therefore, we need to take a cautious decision so that the ratio propounded by us is used for the purpose and, accordingly, we answer the questions in the following terms: (i) The denial of conjugal relationship of the convict for specific purpose may amount to denial of the fundamental right guaranteed under Article 21 of the Constitution of India. The specific purpose may be infertility treatment or some similar reason, but it should not be construed to be a fundamental right for having conjugal relationship as a course. This would make a difference between the law abider and violator in regard to rights guaranteed under Article 21 of the Constitution of India. (ii) The State can be directed to consider the request of convict for emergency leave or ordinary leave for the purpose given while answering the question No. (i). The emergency leave or ordinary leave would be for the purpose given under the 1982 Rules and if any extraordinary reason exist, then the State need to consider the aforesaid as and when a request is made by the convict or his relative for grant of ordinary leave for extraordinary reasons. The emergency leave or ordinary leave cannot be claimed as a right for having conjugal relationship without an exceptional reason. This demarcation is necessary as the curtailment of some rights of a prisoner on account of his conviction to the extent indicated above does not offend Article 21 of the Constitution of India. 26. The Registry is directed to place the papers before the roster Bench for disposal. 27. The Committee constituted pursuant to the orders of this Court may continue its study and submit a detailed report to the respondent authorities for consideration in an appropriate manner in a deserving case and also for the legislature to consider if any amendment is necessary in the 1982 Rules in this regard. 28. Before parting with this Judgment, we like to place on record our appreciation for the excellent assistance rendered by learned counsel on either side and Amicus Curiae, Mr.N.Dilip Kumar. 1. The Secretary to Government of Tamil Nadu 2. The Additional Director General of Prison 3. The Deputy Inspector General of Prisons 5. The Secretary to the Government of India Ministry of Home Affairs, North Block
The Madras High Court recently made an important decision. It answered two main questions. First, does stopping a prisoner from having a sexual relationship with their spouse (called "conjugal rights") go against their basic rights under Article 21 of the Constitution? Second, can the state be forced to let a prisoner take special or regular time off for this purpose? The court explained that while a prisoner might get time off for a special reason like fertility treatment, having a sexual relationship with a spouse is not a basic right that can always be claimed. The court said that the rights of a prisoner's spouse to have conjugal relations are also affected when a prisoner is denied them. Because a prisoner's spouse also loses the chance to have a sexual relationship when the prisoner is denied it, the Madras High Court looked into whether a prisoner's conjugal rights should be considered a basic right. If it were a basic right, the court needed to figure out if it would apply all the time or only under certain conditions. The court answered these questions while deciding if the state should be ordered to give special or regular leave to prisoners for this purpose. A smaller group of judges (called the Division Bench) asked a higher bench of three judges for guidance. They were stuck because the Tamil Nadu rules for stopping a prisoner's sentence (Tamil Nadu Suspension of Sentence Rules, 1982) did not clearly say if prisoners could get leave for sexual relations with their spouses. The three judges — Acting Chief Justice Munishwar Nath Bhandari, Justice PD Audikesavalu, and Justice Pushpa Sathyanarayana — said "yes," prisoners *can* ask for this right if there's an "extraordinary reason." They decided that fertility treatment counts as an "extraordinary reason" under these rules. The judges felt that if a prisoner and their spouse don't have a child, asking for fertility treatment is an "extraordinary reason" according to Rule 20(vii) of the 1982 Rules. But the court made it clear: if the couple already has a child, then asking for leave for fertility treatment would *not* be considered "extraordinary." Also, a prisoner cannot keep asking for leave repeatedly for the same "extraordinary reason." The court noted that the 1982 Rules indeed do not have a specific part about giving leave for sexual relations with a spouse. This is because if such a rule existed, prisoners might ask for leave all the time for this reason. However, this does not mean that leave can be denied in every situation except for the few listed in other parts of Rule 20. Instead, Rule 20(vii) of the 1982 Rules allows for leave for "any other extraordinary reasons," which can include situations like needing fertility treatment, as discussed in this case. Regarding whether denying conjugal rights goes against Article 21 (a basic right) and if a prisoner can claim this right without limits, the higher court explained: The court said that stopping a prisoner from having a sexual relationship with their spouse for a very specific reason might go against their basic rights under Article 21 of India's Constitution. This specific reason could be fertility treatment or something similar. However, it should not be seen as a basic right to have a sexual relationship whenever a prisoner wants. The court emphasized that there must be a difference between people who follow the law and those who break it, especially when it comes to basic rights protected by Article 21. The three judges strongly believed that getting leave for a "specific purpose" like fertility treatment is different from the general idea of "conjugal relationship" (sexual relations). They found that such specific requests fit perfectly under the "extraordinary reason" rule. Because of this, the court decided that the 1982 Rules already protect a prisoner's basic rights under Article 21 of the Constitution as much as needed, even without a specific rule allowing leave just for sexual relations. Based on their answer to the first question, the court then addressed the second question. The court stated that the government *can* be told to give regular or special leave for "extraordinary reasons" such as fertility treatment. However, prisoners cannot simply demand leave for sexual relations with their spouses unless there is a truly "exceptional reason." In the actual case, a husband who was serving a life sentence and his wife did not have a child. The smaller group of judges had already given the husband two weeks of regular leave for fertility treatment. But then, his wife filed another request asking for six weeks of leave for sexual relations, again, for fertility treatment. After looking at decisions from other courts, including the Punjab & Haryana High Court in the Jasvir Singh case (2015), the highest court (apex court) in the Sunil Batra case (1978), and the Bihar High Court in the Rajeeta Patel case (2020), the court decided. Its opinion was that Rule 20(vii) of the 1982 Rules can be used to allow prisoners to take regular or special leave for sexual relations with their spouses, but *only* if there are "extraordinary reasons" for the request. The court explained its reasoning in the final part of its decision. It said that if they declared that denying a prisoner sexual relations goes against their basic rights under Article 21, it would mean giving prisoners a general right to sexual relations. This general right is usually about keeping a marriage going with companionship. The court believed this could not be allowed for prisoners because there must be a clear difference between those who follow the law and those who break it. The court also looked at the specific case again. The prisoner's first request for leave for fertility treatment was approved for two weeks. But right after using that leave, a second request was filed, continuing the same plea. The court stated that it could not ignore these facts. If the court ruled that sexual relations were a basic right for prisoners, then prisoners would constantly ask for leave to use their basic rights under Article 21 without any limits. Therefore, the court concluded that a prisoner's sexual relationship is not a basic right they can claim whenever they want, but it *can* be a basic right for a "specific purpose." While answering the questions from the smaller group of judges, the three-judge bench also explained why its decision was different from an earlier ruling by a larger group of judges of the Madras High Court in a case called *The State v. Yesu* (2011). In that older case, the question was about giving a prisoner a temporary release (called "parole") based on an official order (an "administrative instruction") under Article 162. The judges in that case decided that neither the government nor any other authority could grant parole if there were no specific rules or laws allowing it. After reviewing the *Yesu* judgment, the court decided that its conclusions did not directly apply to the current situation. The *Yesu* case was about granting parole, but this case was about the authorities' power to grant leave to a prisoner under the 1982 Rules, which involves temporarily pausing their sentence for the leave period. After answering both main questions, the judges told the court's administrative office (the registry) to send the case back to the original group of judges (the roster bench) to finalize the case.
Secretary to Government of Tamil Nadu 2. The Additional Director General of Prison 3. The Deputy Inspector General of Prisons the Secretary to the Government of India Ministry of Home Affairs, North Block Prayer: Petition filed under Article 226 of the Constitution of India praying for a writ of habeas corpus directing the respondents to grant leave for six weeks to her husband, and consequently allow her husband to take the treatment, the detenue, Siddhiqe Ali @ Sulthan, S/o.Dheen, Convict No.7369, aged about 40 years, detained at Palayamkottai Central Prison. For the Petitioner : Mr.R.Narayanan For the Respondents : Mr.Shunmugasundaram A Division Bench passed an order on 25.2.2019 referring the following two questions for consideration by a Larger Bench: (i) Whether the denial of conjugal rights to a convict prisoner would amount to denial of such a right to his/ her spouse and thereby, violative of Article 21 of (ii) Whether the State can be directed to favourably consider the request of a convict prisoner for emergency leave or ordinary leave for the purpose of having conjugal relationship with his/her spouse, though the Tamil Nadu Suspension of Sentence Rules, 1982 do not envisage this? 2. The reference of the questions has been in view of the order of Division Bench dated 11.1.2018 granting temporary leave for a period of two weeks to the convict. The said petition was preferred by Meharaj, wife of the detenu Siddhiqe Ali @ Sulthan, to grant leave to the convict for 30 days to have conjugal relationship, as they were not having child from the wedlock and the petitioner was advised to have infertility treatment along with her husband. The Division Bench in the said order gave general directions to the State to favourably consider the request of the prisoners to have conjugal relationship with their spouse. The prayer made in the habeas corpus petition was accepted granting temporary leave to the convict for a period of two weeks from 20.1.2018 to 3.2.2018. For the said period, the sentence was suspended and, accordingly, respondents 3 and 4 therein were directed to release the husband of the petitioner subject to certain conditions. Aggrieved by the said order dated 11.1.2018, the State filed Crl.M.P. (MD) No.832 of 2019 seeking review the said order. 3. While the application was pending, H.C.P. (MD) No.365 of 2018 was filed by the petitioner seeking six weeks leave to her husband by relying upon the order dated 11.1.2018. The Division Bench, vide the order of reference dated 25.2.2019, noticed that there is no provision in the Tamil Nadu Suspension of Sentence Rules, 1982 (for brevity, "the 1982 Rules") for grant of emergency or ordinary leave for a convict to have conjugal relationship with spouse. Under those circumstances, the matter was referred to the Larger Bench to answer the questions framed and quoted above. 4. Before answering the questions framed by the Division Bench, it would be appropriate to refer to the brief facts of this case. The petitioner's husband, Siddhiqe Ali @ Sulthan, was convicted to life imprisonment on commission of offences under Sections 148, 302, 201 and 120B of the Indian Penal Code. The order of the trial court was confirmed by the High Court in Criminal Appeal Nos.1736 and 1807 of 2003 and also by the Apex Court in Criminal Appeal Nos.2118 and 2119 of 2009. 5. The petitioner's husband and other persons are alleged to have committed murder and hence a case was registered bearing Crime No.59 of 1999. After getting bail in the above crime number, the petitioner's husband is stated to have been involved in the Coimbatore Bomb Blast case, apart from many other cases in Tamil Nadu and Kerala. The details of those cases have been given in the affidavit filed by the respondents and are quoted hereunder for 1 S.C.No.140 of U/s 302 IPC Life Imprisonment U/s 120(B) IPC r/w Convicted and section.3 of Explosive sentenced to undergo Substance Act 1908 R.I. for 8 years. U/s.120(B) IPC r/w 4(a) Convicted and of Explosive Substances sentenced to undergo Act 1908 R.I. for 6 years. on the file of U/s.120(B) IPC r/w 4(b) Convicted and District and of Explosive Substances sentenced to undergo Sessions Judge, Act 1908 R.I. for 6 years. Sessions Court for U/s.120(B) IPC r/w 5 r/w Convicted and 2 Exclusive Trial of Sec.6 of Explosive sentenced to undergo Bomb Blast Cases, Substances Act 1908 R.I. for 5 years. Poonamallee. U/s.120(B) IPC r/w 307 Convicted and U/s.120(B) IPC r/w Sec. Convicted and 4 of TNPPL (L&D) Act sentenced to undergo 1992 R.I. for 3 years. U/s.120(B) IPC r/w Sec. Convicted and 9-B(1)(b) Explosive sentenced to undergo Substances Act r/w 141 R.I. for 2 years against of Explosive Substances the 1st charge. U/s 4(b) of Explosive Convicted and Substances Act 1908 sentenced to undergo the 2nd charge. U/s 4(1)(a) of Explosive Convicted and Substances Act 1908 sentenced to undergo the 4th charge. the 5th charge. Explosive Substances Act sentenced to undergo U/s.4(a), 3r/w 6 of Convicted and Explosive Substances Act sentenced to undergo the 7th charge. 3 S.C.No.2 of 2000 U/s.307 IPC He was sentenced to Sessions Judge of imprisonment for 7 Bomb Blast Court, years. 6. In view of the involvement of the petitioner's husband in the Bomb Blast Case and other offences, he was held not entitled to remission under the 1982 Rules and even under the provisions of the Code of Criminal Procedure, 1973. The petitioner's husband is also said to have committed prison offence and sustained punishment for it. It is also averred that the further appeals filed by private party against the judgment in the Coimbatore Bomb Blast cases are pending consideration before the Apex Court. 7. The factual matrix aforesaid has been taken into consideration by the respondents to deny leave. It is, however, a fact that this court vide order dated 11.1.2018 made in H.C.P. (MD) No.1837 of 2017 granted leave to the petitioner's husband for a period of two weeks with liberty to approach the court or the jail authorities seeking extension of time by another two weeks in case further treatment is required based on the advise of the doctor. A fresh writ petition was filed by the petitioner to seek six weeks' leave to her husband on the same ground as was urged earlier while pursuing the first writ petition. The petitioner did not file an application for extension of the period of leave despite liberty given by this court in its order dated 11.1.2018. The Division Bench, while hearing the fresh writ petition, referred the aforesaid two questions for consideration by the Larger Bench. 8. To address the questions framed by the Division Bench, we need to first refer to the relevant provisions of the 1982 Rules. Rules 3, 6, 7, 20 to 25 of the 1982 Rules are quoted hereunder for "3. Leave is not a right.- Leave cannot be claimed as a matter of right. It is a concession granted to the prisoner. 6. Grounds for the grant of emergency leave.- Emergency leave may be granted for attending death or serious illness of father, mother, wife, husband, son, daughter, full brother or full sister, as the case may be, or the wedding of the prisoner or son, daughter, full brother or full sister of the prisoner, as the case may be, and for having delivery outside the prison in the case of female pregnant prisoners. 7. Eligibility for emergency leave.- No emergency leave shall be granted to a prisoner unless,- (i) he has been sentenced by a Court in this State to imprisonment for a term or imprisonment for life for an offence against any law other than a law relating to a matter to which the executive power of the (ii) his conduct in prison has been satisfactory; (iii) female pregnant prisoner for having delivery outside the prison provided who are not constituting high security risks or of cases of equivalent grade descriptions. 20. Grounds for the grant of ordinary leave.- The grounds for the grant of ordinary leave to a (i) to make arrangements for the livelihood of his family and for the settlement of life after release; (ii) To make arrangements for the admission of the children in the school or college; (iii) construction or repairing the homestead; (iv) to make arrangements or to participate in the marriage of the prisoner, sons, daughters, full brother or full sisters, as the case may be, of the (v) settling family disputes like partition, etc; (vi) agricultural operations like sowing, harvesting, (vii) any other extraordinary reasons; and (viii) in case of female pregnant prisoners, for having delivery outside the prison. 21. Non-eligibility for ordinary leave.- The following categories of prisoners shall not be eligible (a) Offenders classified as habituals; (b) Prisoners sentenced under sections 392 to 402 of the Indian Penal Code (Central Act 45 of 1860); (c) Prisoners where presence is considered dangerous or prejudicial to public peace and (d) Prisoners who are considered dangerous or who are involved in the following prison offences:- (6) instigation to serious violations of prison (e) Prisoners committed to prisons in default of furnishing security to keep the peace or be of good (f) Prisoners suffering from unsoundness of mind or contagious diseases. In such cases the eligibility shall be decided in accordance with the opinion of the (g) female pregnant prisoners, for having delivery outside the prison, constituting high security risk or cases of equivalent grave descriptions. 22. Eligibility for ordinary leave.- (1) No prisoner shall be granted ordinary leave unless he has been sentenced by a Court in this State to imprisonment for a term or imprisonment for life for an offence against any law other than a law relating to a matter to which the executive power of the Union Government extends and he has completed three years of imprisonment from the date of initial imprisonment. (2) The period of ordinary leave shall not exceed one month at a time unless it is extended by (3) The prisoner shall be granted the second spell of leave not exceeding one month after the completion of two years of imprisonment from the date on which he returns from the last ordinary leave. (4) In cases of prisoners who have got a balance of three years to serve ordinary leave not exceeding one month for each of three years, the year being calculated from the date of his return to prison from last leave, shall be granted so as to enable them to make arrangements for settling the family life after release. (1) The petition for ordinary leave shall be submitted by the prisoner or by a relative of said prisoner to the Deputy Inspector-General of Prisons concerned direct or sent through the Superintendent Prison where the prisoner to whom leave is to be granted is confined. (2) Each petition for ordinary leave shall be accompanied with a statement of the names of two sureties who are willing to execute the bond for the prisoner's release on leave and take care of the prisoner during the period of leave. In the petition, it shall be stated, among other things, the names and addresses of the prisoner's relatives with whom he wishes to stay during his leave period. In case of female pregnant prisoner, for having delivery outside the prison, the petition for ordinary leave shall be submitted along with Medical Certificate or report of the Prison Medical Officer or Assistant Surgeon in respect of probable date of delivery. 24. Process of petition.- All petitions for the grant of ordinary leave submitted to the Deputy Inspector General of Prisons or to the Superintendent of Prison shall be referred to Probation Officer concerned for reports on the advisability of the ordinary leave of the prisoner in question. The Probation Officer shall personally enquire into and send his report to the Deputy Inspector General of Prisons or to the Superintendent in Form I. If the Probation Officer feels that the release on leave of a prisoner is likely to involve the local Sub-Inspector of Police, solely with a view to avoid any breach of peace and record the views of the Sub-Inspector of Police in the said Form. In respect of other cases where there is no likelihood of breach of peace, the Probation Officer shall send his report direct to the Deputy Inspector General of Prisons or to the Superintendent of Prisons without consulting the local Sub-Inspector of Police. Where the petition has been submitted to the Superintendent of Prisons, he shall forward the petition along with the records such as the Normal Role of the prisoner, check memorandum in Form II, statement showing the details of leave availed by the prisoner from the date of his conviction, a statement showing the offences committed by the prisoner and punishment awarded and the probation officer's report expeditiously to the Deputy Inspector-General of Prisons. The Deputy Inspector General of Prisons may, on consideration of the petition and reports, pass such orders as he deems fit. 25. General conditions governing for grant of emergency and ordinary leave.- The following conditions shall, invariably, be laid down while granting leave in addition to such other conditions, if any, specified by the Government, Inspector-General of Prisons or the Deputy Inspector-General of Prisons or the Superintendent of Prisons, as the case may be, as may be deemed necessary:- (i) that the prisoner shall execute a surety bond in Form II for rupees five hundred with two sureties for (ii) that he shall report at the Police station daily (iii) that the prisoner shall reside at the place specified by the Superintendent of Prisons or the Deputy Inspector-General of Prisons or the Government, as the case may be, and shall not go beyond the limits of that place; (iv) that the prisoner shall be of good behaviour and shall not commit any offence during his leave; (v) that the prisoner shall not associate with bad characters or lead a dissolute life; (vi) that the prisoner shall be liable to be recalled immediately to prison in case he violates any of the (vii) that the prisoner shall surrender himself to the Superintendent of the Prison on expiry of leave (viii) that in case of female pregnant prisoners, for having delivery outside the prison, she shall reside at the place of delivery proposed by her." 9. As per Rule 3 of the 1982 Rules, leave cannot be claimed as a matter of right, while Rule 6 of the 1982 Rules permits emergency leave for attending death or serious illness of the family members referred to therein or even for the wedding of the prisoner or family members stated therein. Rule 7 of the 1982 Rules refers to the eligibility for emergency leave, while Rule 20 of the 1982 Rules refers to the grant of ordinary leave. Rule 21 of the 1982 Rules stipulates the categories of prisoners not eligible for ordinary leave, while Rule 22 of the 1982 Rules prescribes the eligibility for grant of ordinary leave. 10. In the framework of the 1982 Rules, referred to above, we need to answer the moot question referred to the Larger Bench, namely, whether the denial of conjugal rights to a convict would amount to denial of rights guaranteed under Article 21 of the Constitution of India. Article 21 of the Constitution of India is quoted herein under for ready reference: "21. Protection of life and personal liberty.- No person shall be deprived of his life or personal liberty except according to procedure established by law." Article 21 of the Constitution of India guarantees protection of life and personal liberty. 11. The question for our consideration is as to whether a convict, after the trial in the criminal case, can seek liberty for having conjugal relationship in reference to Article 21 of the Constitution of India. It is no doubt true that Article 21 of the Constitution of India guarantees protection of life and personal liberty, except according to law. In the instant case, the petitioner's husband was tried in a criminal case and has been convicted for life imprisonment. The habeas corpus petition was filed by the wife seeking grant of leave to her husband for a period of thirty days for having conjugal relationship. It is in view of the fact that no child was born from their wedlock and as per the opinion of the doctors, the convict and the petitioner have to undergo infertility treatment. 12. The facts of this case show that earlier the petitioner's husband was granted leave for a period of two weeks for the purpose of undergoing infertility treatment. The petitioner's husband availed such leave. Thereafter, the present writ petition was filed seeking leave again for six weeks to the petitioner's husband for undergoing infertility treatment. The aforesaid aspect has to be considered by the Division Bench as we are answering the questions referred to us. 13. The issue of conjugal rights of the convict in reference to Article 21 of the Constitution of India was considered threadbare by the Punjab and Haryana High Court in the case of Jasvir Singh v. State of Punjab, 2015 Cri LJ 2282. In the said case, a Single Bench of the Punjab and Haryana High Court had made a reference to the provisions of the Prisons Act, 1894 and the judgment of the Apex Court in the case of Sunil Batra v. Delhi Administration, (1978) 4 SCC 494. A consideration was also made in reference to the international perspective and the view of the foreign courts' on conjugal visits in prisons and artificial insemination. The writ petition was decided holding conjugal rights of the prisoner to be a fundamental right guaranteed under Article 21 of the Constitution of India. A similar view was expressed by the Patna High Court in the case of Rajeeta Patel v. State of Bihar and others, 2020 (4) 14. Before further addressing the issue, it would be relevant to analyze the meaning of the words "conjugal rights". Conjugal rights means the privilege to the husband and wife arising from the marriage, including mutual rights of companionship. The words aforesaid are commonly used when one of the partner denies the companionship to the other. In such circumstances, conjugal rights are sought to be enforced by the partner who had been denied such companionship. The enforcement of conjugal rights is invariably made by invoking the provisions of the Hindu Marriage Act, 1955. The words aforesaid have been imported even for the prisoner to have conjugal relationship with the spouse. 15. A convict has certain restrictions of visit, though taking into consideration the wide spectrum of Article 21 of the Constitution of India, the 1982 Rules have already been framed for suspension of sentence. The provisions of the 1982 Rules provide for grant of emergency leave to the accused not only to attend death or serious illness of father, mother, wife, husband, son, daughter, full brother or full sister, as the case may be, but even for wedding of the prisoner or son, daughter, full brother or full sister, and even for having delivery outside the prison in the case of female pregnant prisoners. Apart from the aforesaid, a provision for grant of ordinary leave also exists for a prisoner to make arrangements for the livelihood of his family and for settlement of life after release, apart from grant of leave to make arrangements for the admission of the children in school or college; construction or repairing the homestead; agricultural operations like sowing, harvesting, etc. In view of the above, we find Rules 6 and 20 of the 1982 Rules in consonance with Article 21 of the Constitution of 16. It is true that the 1982 Rules do not provide leave for having conjugal relationship with spouse. It is for the reason that if a provision for leave to have conjugal relationship is provided, the prisoner may ask for the leave invariably on that ground and, that too, time and again. It cannot, however, mean that under all circumstances except those specified in Rule 20(i) to (vi) and Rule 20(viii) of the 1982 Rules leave can be denied, rather Rule 20(vii) of the 1982 Rules provides for grant of leave for any other extraordinary reasons, which can be of the nature referred in this case, i.e., for undergoing infertility treatment. However, we need to take note of the fact that the leave on that ground cannot be sought time and again because the reference of the two questions to the Larger Bench is only for the reason that even after grant of leave on one occasion for undergoing infertility treatment, the second petition for leave on the same ground has been submitted. The liberty sought by the petitioner to beget the child by granting leave to her husband for undergoing infertility treatment was allowed by this court on an earlier occasion and, accordingly, we have to analyze the issue not only in reference to Article 21 of the Constitution of India, but by referring to the 1982 Rules and the judgments on the issue. 17. Rule 20(vii) of the 1982 Rules allows grant of ordinary leave to a prisoner on extraordinary reasons. The word "extraordinary" needs to be given meaning. It would be available to the convict to seek leave on extraordinary reasons. The meaning of the word "extraordinary" has not been given in the 1982 Rules. Thus, we are referring to the meaning of the word "extraordinary" from the Black's Law Dictionary, Tenth Edition, which is as under: 1. Beyond what is usual, customary, regular, or common <extraordinary measures>. 2. Of, relating to, or involving a degree of care, diligence, caution, or prudence that would be exercised by highly fastidious and thoughtful people, though falling short of any superhuman effort <extraordinary care>. 3. Of, relating to, or involving legal proceeding or procedure not normally required or resorted to <an extraordinary sitting of the court>. 4. Of, relating to, or involving an occurrence, esp. an incident or accident, that would not have been foreseeable to someone of normal prudence <an extraordinary deluge>. 5. Surpassing the common degree, measure or allotment <extraordinary acuity>. 6. Employed for an exceptional purpose or for a special occasion <envoy extraordinary>. In sense 6, extraordinary frequently functions as a postpositive adjective (as in the bracketed illustration). 7. Of, relating to, or involving a course of study or one or more lectures not considered part of the core curriculum but instead of secondary importance <an 18. As per the Oxford English Dictionary, Second Edition, Volume V, the word "extraordinary" means as under: "out of the usual or regular course or order; often in expressed opposition to ordinary. Of a kind not usually met with; exceptional; unusual; singular. Now with emotional sense, expressing astonishment, strong admiration or the contrary. Exceeding what is usual in amount, degree, 19. The word "extraordinary" read in conjunction with the word "reasons" makes it ample clear that the reasons should be beyond what is usual, regular or common. In other words, the reasons should be different from ordinary reasons and can be of exceptional nature. 20. The question for consideration would be as to whether the wife of the convict can seek leave to enable her and the convict husband undergo infertility treatment to beget a child and whether it would fall under the category of extraordinary reasons. 21. In the case on hand, it is evident from the facts narrated in the Division Bench order dated 11.1.2018 that leave was sought referring to extraordinary reasons and the Division Bench dealt with the issue in reference to the beliefs of psychologists and psychiatrists that, at times, denial of conjugal relationship may lead to frustration and tension, apart from ill-feelings and heart burnings. While concluding the order, the objection regarding the maintainability of the habeas corpus petition has also been dealt with. 22. We find that the prayer of the petitioner to undergo infertility treatment in a circumstance when the convict has no child from the wedlock forms an extraordinary reason for grant of leave. In view of the above, we find that the case of the petitioner was falling under Rule 20(vii) of the 1982 Rules. It is, however, necessary to clarify that the Rule aforesaid cannot be invoked in all situations. It can be granted to undergo infertility treatment, that too, for a convict having no child from the wedlock. If the convict has child or children from the wedlock, then to seek leave for infertility treatment or on similar ground would not fall in the definition of "extraordinary reasons". It is also that leave cannot be sought repeatedly on one and the same ground under the category of extraordinary reasons. If leave for having conjugal relationship is recognized to be a right under Article 21 of the Constitution of India, the prayer of similar nature can be made by the accused or his/her spouse time and again to have conjugal relationship. The observation aforesaid has been made in reference to the provisions of the Code of Criminal Procedure as well as the Prisons Act, 1894. A convict cannot enjoy all the liberties as are available to a common person, otherwise there would no difference between a law-abiding citizen and a law-violating prisoner. The aforesaid would not mean that prisoners do not have any right or liberty, rather we had recorded our finding that the 1982 Rules take care of Article 21 of the Constitution of India. A word of caution in regard to conjugal rights has been put so that the liberty, if any, may not be misused by the convict or the spouse, rather it is used for the purpose it is meant or required. 23. At this stage, we need to clarify that judgment of the Full Bench in The State v. Yesu, (2011) 2 LW (Crl.) 257 referred to by the Division Bench in its order dated 11.1.2018 is in reference to grant of parole, for which only an administrative instruction under Article 162 has been issued by the State of Tamil Nadu and, accordingly, it was held that neither the government nor any other statutory authority has power to grant parole in the absence of the rules or a statute. In our opinion, the finding recorded by the Full Bench in the case of Yesu (supra) does not in any manner affect the authorities to grant leave to the convict under the 1982 Rules by suspending the sentence for the period of leave. The Full Bench decision in the case of Yesu (supra), referred by the Division Bench in the order dated 11.1.2018 does not deal with the issue referred herein. 24. In view of the above, we need to answer the questions framed by the Division Bench. A conjugal right in common parlance is for maintaining marital status by husband and wife. The leave for a specific purpose which may be for undergoing infertility treatment, as such, may not be considered for having conjugal relationship in common parlance, but for extraordinary reason, thus we can safely hold that the 1982 Rules itself protect the rights of the prisoner guaranteed under Article 21 of the Constitution of India to the extent it is required. 25. If we hold that deprivation of conjugal right to a convict offends Article 21 of the Constitution of India, it would mean to give right to a convict for conjugal right, which in common parlance is for maintaining the marital relationship of husband and wife in continuity with companionship. The same cannot be permitted for a convict, as a difference has to be made between the law abider and violator. If the case in hand is also taken note of, the petitioner's first petition was allowed with grant of leave for two weeks for undergoing infertility treatment and immediately after availing it, the second petition was filed in continuity. The facts aforesaid cannot be ignored by the court because after the judgment by the court holding conjugal right to be a fundamental right, the convict would come out with an application to secure his fundamental rights guaranteed under Article 21 of the Constitution of India without any restraint and, therefore, we need to take a cautious decision so that the ratio propounded by us is used for the purpose and, accordingly, we answer the questions in the following terms: (i) The denial of conjugal relationship of the convict for specific purpose may amount to denial of the fundamental right guaranteed under Article 21 of the Constitution of India. The specific purpose may be infertility treatment or some similar reason, but it should not be construed to be a fundamental right for having conjugal relationship as a course. This would make a difference between the law abider and violator in regard to rights guaranteed under Article 21 of the Constitution of India. (ii) The State can be directed to consider the request of convict for emergency leave or ordinary leave for the purpose given while answering the question No. (i). The emergency leave or ordinary leave would be for the purpose given under the 1982 Rules and if any extraordinary reason exist, then the State need to consider the aforesaid as and when a request is made by the convict or his relative for grant of ordinary leave for extraordinary reasons. The emergency leave or ordinary leave cannot be claimed as a right for having conjugal relationship without an exceptional reason. This demarcation is necessary as the curtailment of some rights of a prisoner on account of his conviction to the extent indicated above does not offend Article 21 of the Constitution of India. 26. The Registry is directed to place the papers before the roster Bench for disposal. 27. The Committee constituted pursuant to the orders of this Court may continue its study and submit a detailed report to the respondent authorities for consideration in an appropriate manner in a deserving case and also for the legislature to consider if any amendment is necessary in the 1982 Rules in this regard. 28. Before parting with this Judgment, we like to place on record our appreciation for the excellent assistance rendered by learned counsel on either side and Amicus Curiae, Mr.N.Dilip Kumar. 1. The Secretary to Government of Tamil Nadu 2. The Additional Director General of Prison 3. The Deputy Inspector General of Prisons 5. The Secretary to the Government of India Ministry of Home Affairs, North Block
The Madras High Court recently made an important decision. It answered two main questions. First, does stopping a prisoner from having a sexual relationship with their spouse (called "conjugal rights") go against their basic rights under Article 21 of the Constitution? Second, can the state be forced to let a prisoner take special or regular time off for this purpose? The court explained that while a prisoner might get time off for a special reason like fertility treatment, having a sexual relationship with a spouse is not a basic right that can always be claimed. The court said that the rights of a prisoner's spouse to have conjugal relations are also affected when a prisoner is denied them. Because a prisoner's spouse also loses the chance to have a sexual relationship when the prisoner is denied it, the Madras High Court looked into whether a prisoner's conjugal rights should be considered a basic right. If it were a basic right, the court needed to figure out if it would apply all the time or only under certain conditions. The court answered these questions while deciding if the state should be ordered to give special or regular leave to prisoners for this purpose. A smaller group of judges (called the Division Bench) asked a higher bench of three judges for guidance. They were stuck because the Tamil Nadu rules for stopping a prisoner's sentence (Tamil Nadu Suspension of Sentence Rules, 1982) did not clearly say if prisoners could get leave for sexual relations with their spouses. The three judges — Acting Chief Justice Munishwar Nath Bhandari, Justice PD Audikesavalu, and Justice Pushpa Sathyanarayana — said "yes," prisoners *can* ask for this right if there's an "extraordinary reason." They decided that fertility treatment counts as an "extraordinary reason" under these rules. The judges felt that if a prisoner and their spouse don't have a child, asking for fertility treatment is an "extraordinary reason" according to Rule 20(vii) of the 1982 Rules. But the court made it clear: if the couple already has a child, then asking for leave for fertility treatment would *not* be considered "extraordinary." Also, a prisoner cannot keep asking for leave repeatedly for the same "extraordinary reason." The court noted that the 1982 Rules indeed do not have a specific part about giving leave for sexual relations with a spouse. This is because if such a rule existed, prisoners might ask for leave all the time for this reason. However, this does not mean that leave can be denied in every situation except for the few listed in other parts of Rule 20. Instead, Rule 20(vii) of the 1982 Rules allows for leave for "any other extraordinary reasons," which can include situations like needing fertility treatment, as discussed in this case. Regarding whether denying conjugal rights goes against Article 21 (a basic right) and if a prisoner can claim this right without limits, the higher court explained: The court said that stopping a prisoner from having a sexual relationship with their spouse for a very specific reason might go against their basic rights under Article 21 of India's Constitution. This specific reason could be fertility treatment or something similar. However, it should not be seen as a basic right to have a sexual relationship whenever a prisoner wants. The court emphasized that there must be a difference between people who follow the law and those who break it, especially when it comes to basic rights protected by Article 21. The three judges strongly believed that getting leave for a "specific purpose" like fertility treatment is different from the general idea of "conjugal relationship" (sexual relations). They found that such specific requests fit perfectly under the "extraordinary reason" rule. Because of this, the court decided that the 1982 Rules already protect a prisoner's basic rights under Article 21 of the Constitution as much as needed, even without a specific rule allowing leave just for sexual relations. Based on their answer to the first question, the court then addressed the second question. The court stated that the government *can* be told to give regular or special leave for "extraordinary reasons" such as fertility treatment. However, prisoners cannot simply demand leave for sexual relations with their spouses unless there is a truly "exceptional reason." In the actual case, a husband who was serving a life sentence and his wife did not have a child. The smaller group of judges had already given the husband two weeks of regular leave for fertility treatment. But then, his wife filed another request asking for six weeks of leave for sexual relations, again, for fertility treatment. After looking at decisions from other courts, including the Punjab & Haryana High Court in the Jasvir Singh case (2015), the highest court (apex court) in the Sunil Batra case (1978), and the Bihar High Court in the Rajeeta Patel case (2020), the court decided. Its opinion was that Rule 20(vii) of the 1982 Rules can be used to allow prisoners to take regular or special leave for sexual relations with their spouses, but *only* if there are "extraordinary reasons" for the request. The court explained its reasoning in the final part of its decision. It said that if they declared that denying a prisoner sexual relations goes against their basic rights under Article 21, it would mean giving prisoners a general right to sexual relations. This general right is usually about keeping a marriage going with companionship. The court believed this could not be allowed for prisoners because there must be a clear difference between those who follow the law and those who break it. The court also looked at the specific case again. The prisoner's first request for leave for fertility treatment was approved for two weeks. But right after using that leave, a second request was filed, continuing the same plea. The court stated that it could not ignore these facts. If the court ruled that sexual relations were a basic right for prisoners, then prisoners would constantly ask for leave to use their basic rights under Article 21 without any limits. Therefore, the court concluded that a prisoner's sexual relationship is not a basic right they can claim whenever they want, but it *can* be a basic right for a "specific purpose." While answering the questions from the smaller group of judges, the three-judge bench also explained why its decision was different from an earlier ruling by a larger group of judges of the Madras High Court in a case called *The State v. Yesu* (2011). In that older case, the question was about giving a prisoner a temporary release (called "parole") based on an official order (an "administrative instruction") under Article 162. The judges in that case decided that neither the government nor any other authority could grant parole if there were no specific rules or laws allowing it. After reviewing the *Yesu* judgment, the court decided that its conclusions did not directly apply to the current situation. The *Yesu* case was about granting parole, but this case was about the authorities' power to grant leave to a prisoner under the 1982 Rules, which involves temporarily pausing their sentence for the leave period. After answering both main questions, the judges told the court's administrative office (the registry) to send the case back to the original group of judges (the roster bench) to finalize the case.
0.998619
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1
1
The petitioner is before this Court calling in question the proceedings in C.C.No.2610 of 2020 pending before the IX Additional Chief Metropolitan Magistrate, Bangalore, whereby the learned Magistrate takes cognizance for the offences punishable under Sections 357, 499 and 500 of the IPC. 2. Heard Sri.Madhukar Deshpande, learned counsel appearing for petitioner and Sri.Puttige.R.Ramesh, learned senior counsel appearing for the respondent. 3. Shorn of unnecessary details, facts in brief germane for consideration of the subject lis are as follows:- The respondent/complainant is an officer of the Indian Police Service having retired on attaining the age of superannuation on 31.07.2017. The petitioner was posted as Deputy Inspector General (DIG) Prisons in the Department of Prisons, Government of Karnataka. The petitioner and the respondent were in the same department and the petitioner was an officer of a rank below to that of the respondent. On 12.07.2017 the allegation is that the petitioner had made defamatory statement on the respondent by way of written words published in the media and had thereby committed offences punishable under Sections 357, 499 and 500 of the IPC. The contention of the respondent is that by the said words, the petitioner had tarnished the image of the respondent by giving wide publicity of the report which was communicated by the petitioner to the Head of the Department. The wide publicity alleged is for the reason print and visual media carried the said 4. On the basis of the aforesaid report dated 12-07-2017, the respondent registers a complaint invoking Section 200 of the Cr.P.C. for offences punishable under Sections 357, 499 and 500 of the IPC for defamation. After recording statements of witnesses, the petitioner and the respondent, the learned Magistrate in terms of order dated 22-10-2019 takes cognizance and directs registration of criminal case against the petitioner and also issued summons against the accused/petitioner. It is at that juncture the petitioner has knocked the doors of this Court in the subject petition. 5. Heard Sri Madhukar Deshpande, learned counsel appearing for the petitioner and Sri Puttige R.Ramesh, learned Senior Counsel appearing for the respondent. 6. The learned counsel for the petitioner would urge the following contentions: (a) That since the allegation that is made is performed during the course of conduct of official duty sanction under Section 197 of the Cr.P.C. is mandatory. Admittedly, there is no sanction in the case accorded to prosecute the petitioner and therefore, the entire proceedings would stand vitiated. (b) The ingredients that are required to drive home Section 499 of the IPC are totally absent in the case at hand as the petitioner has communicated to the Head of the Department in the official capacity and there is no evidence that the petitioner has communicated the same to the media both visual and print. Official communication of true facts or events cannot mean that they would be defamation of any officer much less the respondent. (c) Section 199 of the Cr.P.C. permits only an aggrieved person to invoke Section 499 or Section 500 of the IPC. The complainant cannot be construed to be an aggrieved person. In support of his contentions, he would place reliance on the following judgments: (i) RAMNATH GOENKA v. A.R.RAJI – 1981 SCC OnLine (ii) P.K. GHOSH AND ANOTHER v. SUKHBIR SHARMA – (iii) D.DEVARAJA v. OWAIS SABEEN HUSSAIN - (2020) 7 (iv) RAJESH RANGARAJAN v. CROP CARE FEDERATION 7. On the other hand, the learned senior Counsel representing the respondent would submit that the petitioner was, on the date of lodging of the complaint, holding a different post and, therefore, no sanction is required to prosecute the petitioner. The incident that has led to the alleged defamation is not referable to any public work that was discharged by the petitioner and, therefore, protection under Section 199(2) of the Cr.P.C. is not available. He would submit that the communication is sent by the petitioner to the head of the Department as also to both print and visual media and as such, it is a matter of trial for the petitioner to come out clean in the proceedings. The learned senior counsel would place reliance upon the following judgments: (i) PARKASH SINGH BADAL AND ANOTHER v. STATE (ii) L.NARAYANA SWAMY v. STATE OF KARNATAKA AND (iii) AMRIK SINGH v. STATE OF PEPSU – AIR 1955 SC (iv) SUBRAMANIAN SWAMY v. MANMOHAN SINGH AND (v) URMILA DEVI v. YUDHVIR SINGH – (2013) 15 SCC (vi) RAJIB RANJAN AND OTHERS v. R.VIJAYKUMAR – (vii) K.K.MISHRA v. STATE OF MADHYA PRADESH AND 8. I have given my anxious consideration to the submissions of the learned counsel appearing for the petitioner and the learned senior counsel for the respondent and perused the material on record. In furtherance whereof, the following issues fall for my consideration: (i) Whether proceedings instituted for offences punishable under Sections 499 and 500 of the IPC for defamation would be rendered illegal for want of sanction under Section 197 of the Cr.P.C.? (ii) Whether the alleged communication/report dated 12-07-2017 amounts to defamation within the meaning of ingredients of Section 499 of the IPC against the (i) Whether proceedings instituted for offences punishable under Sections 499 and 500 of the IPC for defamation would be rendered illegal for want of sanction under Section 197 of the Cr.P.C.? The petitioner and the respondent are feathers of the same department. Prior to the entry of the petitioner as DIG, Prisons, the respondent was working as DGP & Inspector General (Prisons). The petitioner while working as DIG (Prisons) conducted a review about functioning of prison on 12.07.2017. The outcome of review was a communication to the DGP & Inspector General (Prisons) in the form a report. The report is about continued irregularities in the Prison. The narration contains the inspection conducted by the petitioner from time to time. 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William Anthony raj UTP – 13666 Benzodiazepine PÉÊ¢UÀ½UÉ UÁAeÁ ¸ÀgÀ§gÁdÄ ¤vÀå DUÀÄwÛzÀÄÝ, CzÀ£ÀÄß vÀqÉUÀlÖ®Ä AiÀiÁªÀÅzÉà PÀæªÀÄ 3. £Á®ÄÌ wAUÀ¼À »AzÉ (£Á£ÀÄ F ºÀÄzÉÝAiÀÄ ¥ÀzÀUÀæºÀt 23-06-2017 ªÀiÁrzÀÄÝ, 4. PÁgÁUÀȺÀ D¸ÀàvÉæAiÀÄ°è gÉPÁqïð gÀÆA JA§Ä¢zÀÄÝ, PÉÊ¢UÀ¼À ªÉÊzÀåQÃAiÀÄ zÁR¯ÉUÀ¼À£ÀÄß C°è EnÖzÀÄÝ, C£ÉÃPÀ ¨Áj PÉÆÃmïðUÀ½UÉ F zÁR¯ÉUÀ¼À£ÀÄß ºÁdgÀÄ¥Àr¸À¨ÉÃPÁUÀÄvÀÛzÉ F gÉPÁqïð gÀÆA£À ¤ªÀðºÀuÉUÁV ªÉÊzÁå¢üPÁjUÀ½UÉ ¸ÀºÁAiÀÄ ªÀiÁqÀ®Ä dªÁ¨ÁÝjAiÀÄÄvÀ ¸ÀPÁðj £ËPÀgÀgÁzÀ ªÁqÀðgïUÀ¼À£ÀÄß ¨Áj PÉÆÃmïðUÉ ¤ÃqÀ¨ÉÃPÁzÀ zÁR¯ÉUÀ¼ÀÄ PÁuÉAiÀiÁVªÉ. C®èzÉ ªÉÊzÁ¢üPÁjUÀ¼À UÀªÀÄ£ÀPÉÌ ¨ÁgÀzÉ zÁR¯ÉUÀ¼À£ÀÄß ¨Éïï (Bail) ¸À®ÄªÁV ºÉÆgÀUÉ ¸ÁV¹ zÀÄgÀÄ¥ÀAiÉÆÃUÀ ªÀiÁqÀ¯ÁUÀÄwÛzÉ. 5. PÉÊ¢UÀ¼ÀÄ vÀªÀÄUÉãÀÆ DgÉÆÃUÀåzÀ ¸ÀªÀĸÉå E®è¢zÀÝgÀÆ ªÉÊzÀgÀ §½ §AzÀÄ “eÉÊ°£À ºÉÆgÀVgÀĪÀ D¸ÀàvÉæAiÀÄ°è zÁR¯ÁUÀ®Ä C£ÀÄPÀÆ®ªÁUÀĪÀAvÉ ªÀgÀ¢ PÉÆr” JAzÀÄ £ÀqÉzÀÄPÉƼÀî¢zÀÝgÉ fêÀ ¸À»vÀ ©qÀĪÀÅ¢®èªÉAzÀÄ ¨ÉzÀjPÉ ºÁQgÀÄvÁÛgÉ. £ÉëĹgÀĪÀÅzÀjAzÀ C°è PÉ®ªÀÅ ªÀÄ£ÉÆÃgÉÆÃVUÀ¼À aQvÉìUÉ §¼À¸ÀĪÀ ¤zÉæ ªÀiÁvÉæUÀ¼À£ÀÄß ¸ÁªÀiÁ£Àå gÉÆÃVUÀ¼À PÉÊUÉ ¹UÀĪÀ ºÁUÉ zÀÄgÀÄ¥ÀAiÉÆÃUÀ 7. ¸ÁÖöåA¥ï ¥ÉÃ¥Àgï ºÀUÀgÀtzÀ ªÀÄÄRå DgÉÆæ C§Äݯï PÀjA¯Á¯ï vÉ®V FvÀ£ÀÄ 06 wAUÀ¼À »AzÉ «Ã¯ï ZÉÃgï G¥ÀAiÉÆÃV¸ÀÄwÛzÁÝUÀ ¸ÀºÁAiÀÄPÀgÀ£ÀÄß jAzÀ 4 d£À «ZÁgÀuÁ PÉÊ¢UÀ¼ÀÄ ºÁdjzÀÄÝ, DvÀ¤UÉ PÁ®Ä MvÀÄÛªÀÅzÀÄ, PÉÊ bÉÃA§gï£À°èAiÉÄà EgÀĪÀ ¹¹n«AiÀÄ°è £ÉÆÃrgÀÄwÛÃgÉAzÀÄ ¨sÁ«¹gÀÄvÉÛãÉ. «ZÁgÀuÁ¢üãÀ PÉÊ¢UÀ¼ÀÄ (Undertrial Prisoners) UÀ¼À£ÀÄß vÉ®VAiÀÄAvÀºÀ ¸ÀeÁ §A¢ (Convicts) eÉÆvÉUÉ ¨ÉgÉAiÀÄ®Ä ©lÖgÉ PÁgÁUÀȺÀ ¤AiÀĪÀÄUÀ¼À G®èAWÀ£É JAzÀÄ ¸ÉAlæ¯ï eÉÊ°£À ªÀÄÄRå C¢üÃPÀëjUÉ UÉÆwÛzÀÝgÀÆ PÀæªÀÄ PÉÆÃmïðUÉ ªÀiÁ»w ¤Ãr ¸ÀºÁAiÀÄPÀ PÉÊ¢UÀ¼À£ÀÄß vÉ®V¬ÄAzÀ »A¥ÀqÉAiÀĨÉÃPÀÄ 8. Disproportionate Assets PÉøï£À°è ¸ÀeÉ C£ÀĨsÀ«¸ÀÄwÛgÀĪÀ vÀ«Ä¼ÀÄ£Ár£À G®èAWÀ£ÉAiÀiÁVgÀÄvÀÛzÉ. F «µÀAiÀÄ vÀªÀÄä UÀªÀÄ£ÀPÌÉ EzÀÄÝ, EzÀ£ÀÄß ºÀt ®AZÀ PÉÆqÀ¯ÁVzÉ JA§ ªÀiÁwzÀÄÝ, F C¥ÁzÀ£ÉUÀ¼ÀÄ zÀÄgÀzÀĵÀÖPÀgÀªÁV vÀªÀÄä ªÉÄÃ¯É EgÀĪÀÅzÀjAzÀ vÁªÀÅ EzÀgÀ §UÉÎ UÀªÀÄ£À ºÀj¹ PÀÆqÀ¯Éà eÉÊ°£À vÀ¦àvÀ¸ÀÜ C¢üPÁj/¹§âA¢AiÀĪÀgÀ ªÉÄÃ¯É ¤zsÁðPÀëtåªÁV PÀpt ²¸ÀÄÛPÀæªÀÄ vÉUÉzÀÄPÉƼÀî®Ä PÉÆÃjzÉ. 9. £Á£ÀÄ ¢£ÁAPÀ: 23-06-2017 gÀAzÀÄ F ºÀÄzÉÝ C®APÀj¹zÁV¤AzÀ®Æ vÁªÀÅ gÀAzÀÄ vÀªÀÄä PÀbÉÃjAiÀÄ ¥ÀvÀæ ¸ÀASÉå:rf¦.¦DgïL:JA-18:2017 ªÀÄÆ®PÀ £Á£ÀÄ CzÀgÀ »A¢£À ¢£À CAzÀgÉ ¢£ÁAPÀ: 10-07-2017gÀAzÀÄ ¸ÉAlæ¯ï eÉʯï YÁÐ¥À£Á ¥ÀvÀæ PÉÆnÖgÀÄwÛÃj. rLf ¦æ¸À£Àì DzÀ £À£ÀVgÀĪÀ PÁAiÀÄðªÁå¦ÛAiÀÄ°è ¸ÉAlæ¯ï eÉʯïUÉ ¨sÉÃnPÉÆlÄÖ «ZÁgÀuÉ, ªÉÄðéZÁgÀuÉ £ÀqɸÀĪÀ C¢üPÁgÀ PÁ£ÀÆ£ÀÄ ¥ÀæPÁgÀ EzÀÝgÀÆ vÁªÀÅ F jÃwAiÀÄ YÁÐ¥À£Á PÉÆnÖgÀĪÀÅzÀÄ PÁgÁUÀȺÀzÀ DqÀ½vÀªÀÅ CvÀåAvÀ PɼÀ¸ÀÜgÀ vÀ®Ä¦zÉ JAzÀÄ ºÉüÀ®Ä ±ÉÆÃZÀ¤ÃAiÀĪɤ¸ÀÄvÀÛzÉ. vÀªÀÄä ªÉÄðgÀĪÀ C¥ÁzÀ£ÉUÀ½AzÀ®Æ vÁªÀÅ ªÀÄÄPÀÛgÁUÀ®Ä vÀ¦àvÀ¸ÀÜgÀ ªÉÄÃ¯É PÀpt ²¸ÀÄÛPÀæªÀÄ vÉUÉzÀÄPÉƼÀî¨ÉÃPÉAzÀÄ «£ÀAw¸ÀÄvÉÛãÉ. 10 d£À D¸ÀàvÉæ ªÉÊzÀågÀÄ/¹§âA¢ ¸À»AiÉÆA¢UÉ ¢£ÁAPÀ: 29-06-2017 gÀAzÀÄ PÀ¼ÀÄ»¹PÉÆnÖgÀĪÀ The narration brings about some grave aspects of illegalities happening in the Prison and also suggested corrective measures that need to be taken. While saying so, it was also noted that there were some allegations against the respondent that also needs to be looked into and stringent action be taken against those who are making such allegations against the respondent. 10. The communication is not sent to any other person, as could be seen from the communication itself. It is a simple communication from the petitioner to the respondent who is the Head of Prisons. It would have been a circumstance altogether different if the communication had been made to any other quarter in the Department, Government, print or Visual media. It transpires that newspapers next day carried the report and even the visual media. It is after the publication came about, the respondent retired from service on 31-07-2017 on attaining the age of superannuation. On his retirement, he registers the impugned private complaint against the petitioner alleging that the act of the petitioner in communicating the report and the same being published in both print and visual media has defamed him. The alleged defamatory part of the communication is what is highlighted in the afore-quoted report dated 12.07.2017. On the registration of the private complaint, recording of sworn statement took place and the learned Magistrate takes cognizance of the offence punishable under Sections 357, 499 and 500 of the IPC against the petitioner. It is at that juncture the petitioner has knocked the doors of this 11. It is not, cannot be in dispute that the report communicated by the petitioner to the respondent was in the official capacity. The narration in the report is a blend of inspection taken up by the petitioner from time to time in the official capacity. Therefore, the entire act revolves around the official duties and on the official capacity of the petitioner. If any act being done by a public servant in the official capacity is to be alleged to have a colour of crime and criminal law is to be set in motion, on such allegations sanction for setting such criminal law in motion in terms of Section 197 is imperative. Sub-section (1) of Section 197 of the Cr.P.C. reads as follows: “197. Prosecution of Judges and public servants.—(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction save as otherwise provided in the Lokpal and Lokayuktas Act, 2013 (1 of (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government: Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression “State Government” occurring therein, the expression “Central Government” were substituted. Explanation.—For the removal of doubts it is hereby declared that no sanction shall be required in case of a public servant accused of any offence alleged to have been committed under section 166A, section 166B, section 354, section 354A, section 354B, section 354C, section 354D, section 370, section 375, section 376, section 376A, section 376C, section 376D or section 509 of the Indian Penal Code (45 of 1860).” (Emphasis supplied) Section 197 of the Cr.P.C. which deals with prosecution of public servants mandates that no Court shall take cognizance of the offence except with the previous sanction of the Competent 12. It is an admitted fact that the Court has taken cognizance of the offence against the petitioner for offences punishable under Sections 357, 499 and 500 of the IPC. Without doubt, they are offences punishable under the Code and the Court could not have taken cognizance without an order of sanction from the hands of the Competent Authority being placed before the Court. There could have been no question of further proceedings being taken up without an order of sanction. Several Constitutional Courts have, while considering a case that is instituted for the offence punishable under Section 499 or 500 of the IPC which deals with defamation have so interpreted that sanction under Section 197 of the Cr.P.C. is imperative. If the kernel of the article or letter alleging defamation is seen, as quoted (supra), it would demonstrate reasonable connection to the discharge of official duty of the petitioner. The High Court of Madras in the case of RAMNATH GOENKA V. A.R. RAJI1 has held as follows: “10. He also relies on the extracts incorporated in the above decision from Hori Ram Singh's case reported in AIR 1939 FC 43 : ((1939) 40 Cri LJ 468) and AIR 1948 PC 128 : ((1948) 49 Cri LJ 503). He also referred to me a decision of our High Court by Maheswaran, J. reported in Ramachandran In re, 1979 Mad LW (Cri) 180 : (1980 Cri LJ 349). The learned Judge, after referring to a number of cases under S. 197 Cri. P.C. has observed at page 184 (of Mad LW) (Cri): (at p. 353 “I must point out that the act entitled to the protection of S. 197 Cri. 11. There is a plethora of decisions on the application of S. 197 Cri. P.C. but ultimately the test to be applied, whether the sanction is needed or not, depend on circumstances of each case. The learned counsel for the respondent brings to my notice the official functions and duties of the Principal Information Officer, press Conference Bureau, Government of “Advising Government on the ministries. Disseminating information on the policies and activities of the Government; Maintaining liaison with press; the reporting to Government public policies and performance as reflected in the press.” 12. Thus it is seen that the handing over of the hand outs for publication is undoubtedly characteristic of the official duty of the respondent, I have no doubt that the acts complained of are so interrelated with the official duty of the Principal Information Officer, so as to attract the protection afforded by S. 197 Cri. P.C. The acts are so integrally connected with the duty attached to the officer it is not possible to separate them. At any rate, there is a reasonable connection between the act alleged by the respondent and his official duty. What has been alleged against him is certainly something to do with his official duty. Under these circumstances, opposing the principles laid down in the decisions referred above, I feel the order passed by the learned Chief Metropolitan Magistrate is correct. The revision fails and it is dismissed.” (Emphasis supplied) The High Court of Delhi in the case of P.K. GHOSH & ANOTHER V. SUKHBIR SHARMA2, has held as follows: “5. That part, the said letter contains certain comments regarding the complaint made by the respondent against the Commissioner (Personnel) of the D.D.A. It does not contain any defamatory word against the respondent. That being so, there was absolutely no justification for taking cognizance of the offence under Section 500, IPC against petitioner No. 1. 6. It is undisputed that the petitioner No. 1 is the Vice-Chairman of the D.D.A. D.D.A. is an authority created under the statute by the Government and such an authority is an affair of the State and the Officer appointed as the Vice- Chairman of the D.D.A. is definitely a public servant employed in connection with the affairs of the State within the meaning of Section 197, Cr. P.C. Consequently, prosecution of the petitioner No. 1 is also bad for want of sanction under 7. So far as the petitioner No. 2 is concerned, there is nothing on record to make out any case against him. Admittedly, he is not he author of the letter in question. He had neither made nor published any defamatory statement against the respondent. It has to be borne in mind that setting criminal law in motion is fraught with serious consequences. Before issuing a process against the accused, the Magistrate should satisfy himself that the allegations made in the complaint on its face values and the sworn statements coupled with the documents filed prima facie reveal the commission of any offence against him. In the instant case, the impugned order does not reflect that the learned Magistrate has applied his mind to the facts of the case and the law applicable thereto. On the other hand, I am constrained to observe that the learned Magistrate has acted in a mechanical manner in taking cognizance of the offence against the petitioners. In this context, I may usefully excerpt the following observations of Their Lordships of the Supreme Court in M/s. Pepsi Food Ltd. v. Special Judicial Magistrate, AIR criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complaint has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.” For the foregoing reasons, the petition is allowed and the impugned order dated 3.3.1999 is set aside and the proceedings emanating from the complaint filed by the respondent and pending on the file of the Metropolitan Magistrate, Delhi are quashed.” (Emphasis supplied) In the light of the afore-quoted judgments of both the High Court of Madras and High Court of Delhi, interpreting the interplay between Section 499 and 500 of the IPC and Section 197 of the Cr.P.C. it becomes unmistakably clear that sanction under Section 197 of the Cr.P.C. would be imperative, if the alleged defamatory statements are in the course of discharge of official 13. The aforesaid interpretation is further amplified by the Apex Court in the case of D.DEVARAJA3 (supra), wherein the Apex Court has interpreted sanction under Section 197 of the Cr.P.C. to be imperative, if the allegation that drives a case to the concerned criminal Court is in discharge of official duty or has a reasonable connection to it. The Apex Court has held as “30. The object of sanction for prosecution, whether under Section 197 of the Code of Criminal Procedure, or under Section 170 of the Karnataka Police Act, is to protect a public servant/police officer discharging official duties and functions from harassment by initiation of frivolous retaliatory criminal proceedings. As held by a Constitution Bench of this Court in Matajog Dobey v. H.C. Bhari: (AIR p. 48, “15. … Public servants have to be protected from harassment in the discharge of official duties while ordinary citizens not so engaged do not require this There is no question of any discrimination between one person and another in the matter of taking proceedings against a public servant for an act done or purporting to be done by the public servant in the discharge of his official duties. No one can take such proceedings without such sanction.” 31. In Pukhraj v. Stateof Rajasthan this Court held: “2. … While the law is well settled the difficulty really arises in applying the law to the facts of any particular case. The intention behind the section is to prevent public servants from being unnecessarily harassed. The section is not restricted only to cases of anything purported to be done in good faith, for a person who ostensibly acts in execution of his duty still purports so to act, although he may have a dishonest intention. Nor is it confined to cases where the act, which constitutes the offence, is the official duty of the official concerned. Such an interpretation would involve a contradiction in terms, because an offence can never be an official duty. The offence should have been committed when an act is done in the execution of duty or when an act purports to be done in execution of duty. The test appears to be not that the offence is capable of being committed only by a public servant and not by anyone else, but that it is committed by a public servant in an act done or purporting to be done in the execution of duty. The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty. Nor need the act constituting the offence be so inseparably connected with the official duty as to form part and parcel of the same transaction. What is necessary is that the offence must be in respect of an act done or purported to be done in the discharge of an official duty. It does not apply to acts done purely in a private capacity by a public servant. Expressions such as the “capacity in which the act is performed”, “cloak of office” and “professed exercise of the office” may not always be appropriate to describe or delimit the scope of section. An act merely because it was done negligently does not cease to be one done or purporting to be done in execution of a duty.” 32. In Amrik Singh v. State of PEPSU this Court referred to the judgments of the Federal Court in Hori Ram Singh v. Crown; H.H.B. Gill v. King Emperor and the judgment of the Privy Council in Gill v. R. and held: (Amrik Singh case AIR p. 312, para 8) “8. The result of the authorities may thus be summed up : It is not every offence committed by a public servant that requires sanction for prosecution under Section 197(1) of the Code of Criminal Procedure; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary; and that would be so, irrespective of whether it was, in fact, a proper discharge of his duties, because that would really be a matter of defence on the merits, which would have to be investigated at the trial, and could not arise at the stage of the grant of sanction, which must precede the institution of the 33. Section 197 of the Code of Criminal Procedure, 1898, hereinafter referred to as the old Criminal Procedure Code, which fell for consideration in Matajog Dobey, Pukhraj and Amrik Singh is in pari materia with Section 197 of the Code of Criminal Procedure, 1973. The Code of Criminal Procedure, 1973 has repealed and replaced the old Code of Criminal Procedure. 34. In Ganesh Chandra Jew this Court held: (SCC pp. “7. The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant of the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty.” 35. In State of Orissa v. Ganesh Chandra Jew this Court interpreted the use of the expression “official duty” to imply that the act or omission must have been done by the public servant in course of his service and that it should have been in discharge of his duty. Section 197 of the Code of Criminal Procedure does not extend its protective cover to every act or omission done by a public servant while in service. The scope of operation of the section is restricted to only those acts or omissions which are done by a public servant in discharge of official duty. 36. In Shreekantiah Ramayya Munipalli v. State of Bombay this Court explained the scope and object of Section 197 of the old Criminal Procedure Code, which as stated hereinabove, is in pari materia with Section 197 of the Code of Criminal Procedure. This Court held: (AIR pp. 292-93, paras “18. Now it is obvious that if Section 197 of the Code of Criminal Procedure is construed too narrowly it can never be applied, for of course it is no part of an official's duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it. The section has content and its language must be given meaning. What it says is— ‘When any public servant … is accused of any “offence” alleged to have been committed by him while acting or purporting to act in the discharge of his official duty….’ We have therefore first to concentrate on the word 19. Now an offence seldom consists of a single act. It is usually composed of several elements and, as a rule, a whole series of acts must be proved before it can be established. In the present case, the elements alleged against Accused 2 are, first, that there was an “entrustment” and/or “dominion”; second, that the entrustment and/or dominion was “in his capacity as a public servant”; third, that there was a “disposal”; and fourth, that the disposal was “dishonest”. Now it is evident that the entrustment and/or dominion here were in an official capacity, and it is equally evident that there could in this case be no disposal, lawful or otherwise, save by an act done or purporting to be done in an official capacity. Therefore, the act complained of, namely, the disposal, could not have been done in any other way. If it was innocent, it was an official act; if dishonest, it was the dishonest doing of an official act, but in either event the act was official because Accused 2 could not dispose of the goods save by the doing of an official act, namely, officially permitting their disposal; and that he did. He actually permitted their release and purported to do it in an official capacity, and apart from the fact that he did not pretend to act privately, there was no other way in which he could have done it. Therefore, whatever the intention or motive behind the act may have been, the physical part of it remained unaltered, so if it was official in the one case it was equally official in the other, and the only difference would lie in the intention with which it was done: in the one event, it would be done in the discharge of an official duty and in the other, in the purported discharge of it.” 37. The scope of Section 197 of the old Code of Criminal Procedure, was also considered in P. Arulswami v. State of Madras [P. Arulswami v. State of Madras, AIR 1967 SC 776 : 1967 Cri LJ 665] where this Court held : (AIR p. 778, para 6) “6. … It is the quality of the act that is important and if it falls within the scope and range of his official duties the protection contemplated by Section 197 of the Criminal Procedure Code will be attracted.” “If the act is totally unconnected with the official duty, there can be no protection. It is only when it is either within the scope of the official duty or in excess of it that the protection is claimable….” 38. In B. Saha v. M.S. Kochar this Court held : (SCC p. “18. In sum, the sine qua non for the applicability of this section is that the offence charged, be it one of commission or omission, must be one which has been committed by the public servant either in his official capacity or under colour of the office held by him.” 39. In Virupaxappa Veerappa Kadampur v. State of Mysore cited by Mr Poovayya, a three-Judge Bench of this Court had, in the context of Section 161 of the Bombay Police Act, 1951, which is similar to Section 170 of the Karnataka Police Act, interpreted the phrase “under colour of duty” to mean “acts done under the cloak of duty, even though not by virtue of the duty”. 40. In Virupaxappa Veerappa Kadampur this Court referred (at AIR p. 851, para 9) to the meaning of the words “colour of office” in Wharton's Law Lexicon, 14th Edn., which “Colour of office, when an act is unjustly done by the countenance of an office, being grounded upon corruption, to which the office is as a shadow and colour.” 41. This Court also referred (at AIR p. 852, para 9) to the meaning of “colour of office” in Stroud's Judicial Dictionary, 3rd Edn., set out hereinbelow: “Colour:“Colour of office” is always taken in the worst part, and signifies an act evil done by the countenance of an office, and it bears a dissembling face of the right of the office, whereas the office, is but a veil to the falsehood, and the thing is grounded upon vice, and the office is as a shadow to it. But “by reason of the office” and “by virtue of the office” are taken always in the best part.” 42. After referring to the Law Lexicons referred to above, this Court held: (Virupaxappa Veerappa Kadampur case AIR p. 852, para 10) “10. It appears to us that the words “under colour of duty” have been used in Section 161(1) to include acts done under the cloak of duty, even though not by virtue of the duty. When he (the police officer) prepares a false panchnama or a false report he is clearly using the existence of his legal duty as a cloak for his corrupt action or to use the words in Stroud's Dictionary “as a veil to his falsehood”. The acts thus done in dereliction of his duty must be held to have been done “under colour of the duty”.” 43. In Om Prakash v. State of Jharkhand this Court, after referring to various decisions, pertaining to the police excess, explained the scope of protection under Section 197 of the Code of Criminal Procedure as follows: (SCC p. 89, para “32. The true test as to whether a public servant was acting or purporting to act in discharge of his duties would be whether the act complained of was directly connected with his official duties or it was done in the discharge of his official duties or it was so integrally connected with or attached to his office as to be inseparable from it (K. Satwant Singh [K. Satwant Singh v. State of Punjab, AIR 1960 SC 266: 1960 Cri LJ 410]). The protection given under Section 197 of the Code has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant of the protection (Ganesh Chandra Jew [State of Orissa v. Ganesh Chandra Jew, (2004) 8 SCC 40 : 2004 SCC (Cri) 2104] ). If the above tests are applied to the facts of the present case, the police must get protection given under Section 197 of the Code because the acts complained of are so integrally connected with or attached to their office as to be inseparable from it. It is not possible for us to come to a conclusion that the protection granted under Section 197 of the Code is used by the police personnel in this case as a cloak for killing the deceased in cold blood.” (emphasis supplied) 44. In Sankaran Moitra v. Sadhna Das the majority referred to Gill v. R , H.H.B. Gill v. King Emperor; Shreekantiah Ramayya Munipalli v. State of Bombay; Amrik Singh v. State of PEPSU ; Matajog Dobey v. H.C. Bhari ; Pukhraj v. State of Rajasthan ; B. Saha v. M.S. Kochar ; Bakhshish Singh Brar v. Gurmej Kaur ; Rizwan Ahmed Javed Shaikh v. Jammal Patel and held: (Sankaran Moitra case [Sankaran Moitra v. Sadhna Das, (2006) 4 SCC 584 : (2006) 2 SCC (Cri) 358] , SCC pp. 602-603, para 25) “25. The High Court has stated that killing of a person by use of excessive force could never be performance of duty. It may be correct so far as it goes. But the question is whether that act was done in the performance of duty or in purported performance of duty. If it was done in performance of duty or purported performance of duty, Section 197(1) of the Code cannot be bypassed by reasoning that killing a man could never be done in an official capacity and consequently Section 197(1) of the Code could not be attracted. Such a reasoning would be against the ratio of the decisions of this Court referred to earlier. The other reason given by the High Court that if the High Court were to interfere on the ground of want of sanction, people will lose faith in the judicial process, cannot also be a ground to dispense with a statutory requirement or protection. Public trust in the institution can be maintained by entertaining causes coming within its jurisdiction, by performing the duties entrusted to it diligently, in accordance with law and the established procedure and without delay. Dispensing with of jurisdictional or statutory requirements which may ultimately affect the adjudication itself, will itself result in people losing faith in the system. So, the reason in that behalf given by the High Court cannot be sufficient to enable it to get over the jurisdictional requirement of a sanction under Section 197(1) of the Code of Criminal Procedure. We are therefore satisfied that the High Court was in error in holding that sanction under Section 197(1) was not needed in this case. We hold that such sanction was necessary and for want of sanction the prosecution must be quashed at this stage. It is not for us now to answer the submission of the learned counsel for the complainant that this is an eminently fit case for grant of such sanction.” 45. The dissenting view of C.K. Thakker, J. in Sankaran Moitra supports the contention of Mr Luthra to some extent. However, we are bound by the majority view. Furthermore even the dissenting view of C.K. Thakker, J. was in the context of an extreme case of causing death by assaulting the 46. In K.K. Patel v. State of Gujarat [K.K. Patel v. State of Gujarat, this Court referred to Virupaxappa Veerappa Kadampur and held: (K.K. Patel case SCC p. 203, para 17) “17. The indispensable ingredient of the said offence is that the offender should have done the act “being a public servant”. The next ingredient close to its heels is that such public servant has acted in disobedience of any legal direction concerning the way in which he should have conducted as such public servant. For the offences under Sections 167 and 219 IPC the pivotal ingredient is the same as for the offence under Section 166 IPC. The remaining offences alleged in the complaint, in the light of the averments made therein, are ancillary offences to the above and all the offences are parts of the same transaction. They could not have been committed without there being at least the colour of the office or authority which the appellants held.” 47. Mr Poovayya argued that the complaint filed by the respondent against the appellant-accused was in gross abuse of process, frivolous and mala fide. Controverting the allegation of the respondent in his complaint, of police excesses while the respondent was in police custody between 27-2-2013 and 14-3-2013 in connection with Crime No. 12/2012, Mr Poovayya referred to the order of the learned Chief Metropolitan Magistrate dated 28-2-2013 in the said crime case, observing that the respondent had not complained of any ill-treatment by the police. 48. Mr Poovayya submitted that the learned Chief Metropolitan Magistrate had, in any case, passed an order for medical examination of the respondent in view of his complaint of ill-treatment, but the medical reports, upon such examination, showed that there was no injury on the respondent. Mr Poovayya argued that the appellant-accused had been arrayed as the accused vindictively, out of vengeance, since the appellant-accused had, in his capacity as Deputy Commissioner of Police (Central Crime Branch), submitted an affidavit in the habeas corpus petition filed by the respondent's father in the Karnataka High Court. The said affidavit led to the dismissal of the habeas corpus petition. 49. Citing the judgment of this Court in State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, Poovayya argued that where a criminal proceeding is manifestly prompted by mala fides and instituted with the ulterior motive of vengeance due to private or personal grudge, power under Section 482 of the Criminal Procedure Code ought to be exercised to prevent abuse of the process of court and/or to secure the ends of justice. 50. In State of Orissa v. Ganesh Chandra Jew cited by Mr Poovayya, this Court had, in similar circumstances, referred to and followed Bhajan Lal and held: (Ganesh Chandra Jew case SCC pp. 51-52, para 20) “20. … The factual scenario as indicated above goes to show that on 28-2-1991 the respondent was produced before the Magistrate. He was specifically asked as to whether there was any ill-treatment. Learned SDJM specifically records that no complaint of any ill-treatment was made. This itself strikes at the credibility of the complaint. … Though there are several other aspects highlighted in the version indicated in the complaint and the materials on record are there, we do not think it necessary to go into them because of the inherent improbabilities of the complainant's case and the patent mala fides involved.” 51. In K.K. Patel v. State of Gujarat this Court held: (SCC p. 201, paras 11-12) “11. That apart, the view of the learned Single Judge of the High Court that no revision was maintainable on account of the bar contained in Section 397(2) of the Code, is clearly erroneous. It is now well-nigh settled that in deciding whether an order challenged is interlocutory or not as for Section 397(2) of the Code, the sole test is not whether such order was passed during the interim stage (vide Amar Nath v. State of Haryana, Madhu Limaye v. State of Maharashtra , V.C. Shukla v. State and Rajendra Kumar Sitaram Pande v. Uttam. The feasible test is whether by upholding the objections raised by a party, it would result in culminating the proceedings, if so any order passed on such objections would not be merely interlocutory in nature as envisaged in Section 397(2) of the Code. In the present case, if the objection raised by the appellants were upheld by the Court the entire prosecution proceedings would have been terminated. Hence, as per the said standard, the order was revisable. 12. Therefore, the High Court went wrong in holding that the order impugned before the Sessions Court was not revisable in view of the bar contained in Section 397(2) of the 52. In D.T. Virupakshappa v. C. Subash, cited by Mr Poovayya, the question raised by the appellant before this Court was, whether the learned Magistrate could not have taken cognizance of the alleged offence which was of police excess in connection with the investigation of the criminal case, without sanction from the State Government under Section 197 of the Code of Criminal Procedure and whether the High Court should have quashed the proceedings on that ground alone. 53. This Court in Virupakshappa case held that the whole allegation of police excess in connection with the investigation of the criminal case, was reasonably connected with the performance of the official duty of the appellant. The learned Magistrate could not have, therefore, taken cognizance of the case, without previous sanction of the State Government. This Court found that the High Court had missed this crucial point in passing the impugned order, dismissing the application of the policeman concerned under Section 482 of the Code of Criminal Procedure. 54. In Ganesh Chandra Jew, the Magistrate had, as in this case, specially recorded that there was no complaint of any ill-treatment. This Court was of the view that continuance of the proceeding would amount to the abuse of the process of law. Accordingly, this Court set aside the judgment of the High Court whereby the High Court refused to exercise its power under Section 482 of the Criminal Procedure Code to quash an order of sub-Divisional Judicial Magistrate, in a complaint against police officials, without sanction under Section 197 of the Criminal Procedure Code. 55. Devinder Singh v. State of Punjab cited by Mr Luthra is clearly distinguishable as that was a case of killing by the police in fake encounter. Satyavir Singh Rathi v. State also pertains to a fake encounter, where the deceased was mistakenly identified as a hardcore criminal and shot down without provocation. The version of the police that the police had been attacked first and had retaliated, was found to be false. In the light of these facts, that this Court held that it could not, by any stretch of imagination, be claimed by anybody that a case of murder could be within the expression “colour of duty”. This Court dismissed the appeals of the policemen concerned against conviction, inter alia, under Section 302 of the Penal Code, which had duly been confirmed by the High Court. The judgment is clearly 56. The judgment of this Court in State of A.P. v. N. Venugopal is distinguishable in that the policemen concerned, being the Sub-Inspector, Head Constable and a Constable attached to a police station had without warrant, illegally detained the complainant for interrogation under Section 161 of the Criminal Procedure Code in connection with a private complaint of house break and theft, assaulted him along with the private complainant to extract statements and left him in an injured condition. 57. In the context of the aforesaid, this Court held that an act is not “under” a provision of law merely because the point of time at which it is done coincides with the point of time when some act in the exercise of the powers granted by the provision or in performance of the duty imposed by it. To be able to say that an act is done “under” a provision of law, one must discover the existence of a reasonable relationship between the provisions and the act. In the absence of such a relation, the act cannot be said to be done under the particular provision of law. It cannot be said that beating a person suspected of a crime or confining him or sending him away in an injured condition, at a time when the police were engaged in investigation, were acts done or intended to be done under the provisions of the Madras District Police Act or the Criminal Procedure Code or any other law conferring powers on the police. It could not be said that the provisions of Section 161 of the Criminal Procedure Code authorised the police officer examining a person to beat him or to confine him for the purpose of inducing him to make a particular statement. 58. In Bhanuprasad Hariprasad Dave v. State of Gujarat the Head Constable concerned was accused of preparing a false report with the dishonest intention of saving a person from whom ganja had been seized, after obtaining illegal gratification. The Court held that demand and/or acceptance of illegal gratification could not be said to be an act done under colour of duty. Significantly, the policemen concerned had been tried and convicted and their conviction was affirmed by the High Court. The Head Constable concerned was seeking bail in this Court. 59. The judgment in State of Maharashtra v. Atma Ram, was rendered in an appeal from a judgment and order of the High Court, whereby the High Court had reversed the conviction of the policemen concerned under Sections 330, 342, 343 and 348 of the Penal Code, holding the prosecution to be barred under Section 161(1) of the Bombay Police Act. Allowing the appeal of the State, this Court held that Section 64(b) which confers duty on every police officer to obtain intelligence concerning the commission of cognizable offences or designs to commit such offences and to take such other steps to bring offenders to justice or to prevent the commission of cognizable and non-cognizable offences, did not authorise any police officer to beat persons in the course of examination for the purpose of inducing them to make any particular statement or to detain such persons. The acts complained of were factually found not to have been done under colour of any duty or authority. The order of the High Court acquitting the policemen concerned was thus, set aside. 60. In Bakhshish Singh Brar v. Gurmej Kaur, the question raised before this Court was, whether while carrying out investigation in performance of duty as a policeman, it was necessary for the policeman concerned to conduct investigation in such a manner as would result in injury and death. This Court held that trial of a police officer, accused of accused of causing grievous injury and death in conducting raid and search, need not be stayed for want of sanction for prosecution of the police officer, at the preliminary stage, observing that criminal trial should not be stayed at the preliminary stage in every case, as it might cause damage to the evidence. The Court observed that if necessary, the question of sanction might be agitated at a later stage. 61. In Om Prakash v. State of Jharkhand this Court held: (SCC pp. 90-91 & 95, paras 34 & 42-43) “34. In Matajog Dobey the Constitution Bench of this Court was considering what is the scope and meaning of a somewhat similar expression ‘any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty’ occurring in Section 197 of the Criminal Procedure Code (5 of 1898). The Constitution Bench observed that no question of sanction can arise under Section 197 unless the act complained of is an offence; the only point to determine is whether it was committed in the discharge of official duty. On the question as to which act falls within the ambit of abovequoted expression, the Constitution Bench concluded that there must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim that he did it in the course of performance of his duty. While dealing with the question whether the need for sanction has to be considered as soon as the complaint is lodged and on the allegations contained therein, the Constitution Bench referred to Hori Ram Singh and observed that at first sight, it seems as though there is some support for this view in Hori Ram Singh because Sulaiman, J. has observed in the said judgment that as the prohibition is against the institution itself, its applicability must be judged in the first instance at the earliest stage of institution and Varadachariar, J. has also stated that : (Matajog Dobey case AIR p. 49, para 20) ‘20. … the question must be determined with reference to the nature of the allegations made against the public servant in the criminal proceedings.’ The legal position is thus settled by the Constitution Bench in the above paragraph. Whether sanction is necessary or not may have to be determined from stage to stage. If, at the outset, the defence establishes that the act purported to be done is in execution of official duty, the complaint will have to be dismissed on that ground. 42. It is not the duty of the police officers to kill the accused merely because he is a dreaded criminal. Undoubtedly, the police have to arrest the accused and put them up for trial. This Court has repeatedly admonished trigger-happy police personnel, who liquidate criminals and project the incident as an encounter. Such killings must be deprecated. They are not recognised as legal by our criminal justice administration system. They amount to State- sponsored terrorism. But, one cannot be oblivious of the fact that there are cases where the police, who are performing their duty, are attacked and killed. There is a rise in such incidents and judicial notice must be taken of this fact. In such circumstances, while the police have to do their legal duty of arresting the criminals, they have also to protect themselves. The requirement of sanction to prosecute affords protection to the policemen, who are sometimes required to take drastic action against criminals to protect life and property of the people and to protect themselves against attack. Unless unimpeachable evidence is on record to establish that their action is indefensible, mala fide and vindictive, they cannot be subjected to prosecution. Sanction must be a precondition to their prosecution. It affords necessary protection to such police personnel. The plea regarding sanction can be raised at the 43. In our considered opinion, in view of the facts which we have discussed hereinabove, no inference can be drawn in this case that the police action is indefensible or vindictive or that the police were not acting in discharge of their official duty. In Zandu Pharmaceutical Works Ltd. this Court has held that the power under Section 482 of the Code should be used sparingly and with circumspection to prevent abuse of process of court but not to stifle legitimate prosecution. There can be no two opinions on this, but, if it appears to the trained judicial mind that continuation of a prosecution would lead to abuse of process of court, the power under Section 482 of the Code must be exercised and proceedings must be quashed. Indeed, the instant case is one of such cases where the proceedings initiated against the police personnel need to be quashed.” 62. In Pukhraj v. State of Rajasthan the accused Postmaster General, Rajasthan had allegedly kicked and abused a union leader who had come to him when he was on tour, to submit a representation. This Court held that Section 197 of the Code of Criminal Procedure, which is intended to prevent a public servant from being harassed does not apply to acts done by a public servant in his private capacity. This Court, however, left it open to the accused public servant to place materials on record during the trial to show that the acts complained of were so interrelated with his official duty as to attract the protection of Section 197 of the Criminal Procedure 63. In Rizwan Ahmed Javed Shaikh v. Jammal Patel, this Court held that where the gravamen of the charge was failure on the part of the accused policemen to produce the complainants, who were in their custody, before the Judicial Magistrate, the offence alleged was in their official capacity, though it might have ceased to be legal at a given point of time, and the accused police officers would be entitled to the benefit of Section 197(2) of the Criminal Procedure Code. 64. The judgment in B. Saha v. M.S. Kochar was rendered in the context of allegations against the Customs Authorities of misappropriation or conversion of goods. This Court held that while the seizure of goods by the custom officers concerned was an act committed in discharge of official duty, the subsequent acts of misappropriation or conversion of the goods could not be said to be viewed as under the colour of official duty. Accordingly, this Court held that sanction for prosecution was not necessary. 65. The law relating to the requirement of sanction to entertain and/or take cognizance of an offence, allegedly committed by a police officer under Section 197 of the Code of Criminal Procedure read with Section 170 of the Karnataka Police Act, is well settled by this Court, inter alia by its decisions referred to above. 66. Sanction of the Government, to prosecute a police officer, for any act related to the discharge of an official duty, is imperative to protect the police officer from facing harassive, retaliatory, revengeful and frivolous proceedings. The requirement of sanction from the Government, to prosecute would give an upright police officer the confidence to discharge his official duties efficiently, without fear of vindictive retaliation by initiation of criminal action, from which he would be protected under Section 197 of the Code of Criminal Procedure, read with Section 170 of the Karnataka Police Act. At the same time, if the policeman has committed a wrong, which constitutes a criminal offence and renders him liable for prosecution, he can be prosecuted with sanction from the appropriate 67. Every offence committed by a police officer does not attract Section 197 of the Code of Criminal Procedure read with Section 170 of the Karnataka Police Act. The protection given under Section 197 of the Criminal Procedure Code read with Section 170 of the Karnataka Police Act has its limitations. The protection is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and official duty is not merely a cloak for the objectionable act. An offence committed entirely outside the scope of the duty of the police officer, would certainly not require sanction. To cite an example, a policeman assaulting a domestic help or indulging in domestic violence would certainly not be entitled to protection. However, if an act is connected to the discharge of official duty of investigation of a recorded criminal case, the act is certainly under colour of duty, no matter how illegal the act may be. 68. If in doing an official duty a policeman has acted in excess of duty, but there is a reasonable connection between the act and the performance of the official duty, the fact that the act alleged is in excess of duty will not be ground enough to deprive the policeman of the protection of the government sanction for initiation of criminal action against him. 69. The language and tenor of Section 197 of the Code of Criminal Procedure and Section 170 of the Karnataka Police Act makes it absolutely clear that sanction is required not only for acts done in discharge of official duty, it is also required for an act purported to be done in discharge of official duty and/or act done under colour of or in excess of such duty or 70. To decide whether sanction is necessary, the test is whether the act is totally unconnected with official duty or whether there is a reasonable connection with the official duty. In the case of an act of a policeman or any other public servant unconnected with the official duty there can be no question of sanction. However, if the act alleged against a policeman is reasonably connected with discharge of his official duty, it does not matter if the policeman has exceeded the scope of his powers and/or acted beyond the four corners of law.” The Apex Court, in the afore-quoted judgment, considers entire spectrum of law as emanated from 1956 till the date of delivery of the judgment, as to why it is imperative that protection under Section 197 of the Cr.P.C. should be strictly construed to protect public servants from fearless discharge of their official duties. The said judgment would cover the issue in the case at hand on all its fours insofar as sanction to prosecute a public servant, in the case at hand - a police officer. 14. Insofar as non-obtaining of sanction from the hands of the Competent Authority prior to the Court taking cognizance, it is an admitted fact that in the case at hand, no sanction is sought or accorded by the Competent Authority. Therefore, any proceeding of taking cognizance and setting of criminal law in motion thereon without sanction will lose its legs to stand and would, therefore, suffer from want of tenability. 15. The contention of the learned counsel appearing for the respondent that the petitioner had left the post by the time the complaint was registered and, therefore, sanction is noted, only to be repelled, as it is fundamentally flawed. Leaving the post cannot be equated with leaving the service. Change of post will not mean that the petitioner has ceased to be a public servant. The petitioner continues to be a public servant in any post in the cadre and the act performed by a public servant during any time in service if sought to be given a colour of crime by wanting to set the criminal law in motion, in some cases even after retirement, sanction under Section 197 of the Cr.P.C. is imperative. This is the purport of the law declared, as extracted 16. The judgments relied on by the learned senior counsel representing the respondent would bring no assistance to him as they are all judgments rendered in the peculiar facts of those cases. It is no law, declared by the Apex Court that sanction would not be required if the public servant has ceased to hold that particular post. As long as the public servant remains a public servant and his/her actions are sought to be alleged of crime, sanction would become necessary. The judgment in the case of PARKASH SINGH BADAL (supra) was concerning requirement of sanction after PARKASH SINGH BADAL had ceased to be the Chief Minister of Punjab. The act committed while he was the Chief Minister was sought to be alleged after cessation of office. The cadre officers would cease to become public servants only on their cessation of service by any mode. They cannot be compared to politicians. Same goes with every judgment that is relied on by the learned senior counsel appearing for the respondent. 17. The other judgments that are relied on are concerning the fact whether sanction under Section 197 of the Cr.P.C. would be required for acts performed by such public servant which were not in the discharge of their official duty. The reasonable connection between the official duty and the alleged act committed by those public servants is what was considered by the Apex Court in the other case – URMILA DEVI (supra). Therefore, the judgments relied on in the case of D.DEVARAJA (supra) and that of other High Courts is what would become applicable to the case at hand and none of the armory from the arsenal of the learned senior counsel appearing for the respondent would support the case of the respondent, as the judgment in the case of D.DEVARAJA (supra) is overwhelming qua the facts of the case at hand. Therefore, I answer issue No.1 against the respondent holding that the learned Magistrate could not have taken cognizance of the aforesaid offences without an order of sanction for such prosecution from the hands of the Competent Authority. (ii) Whether the alleged communication/report dated 12-07-2017 amounts to defamation within the meaning of ingredients of Section 499 of the IPC against the The second issue is as to whether the report submitted would be defamatory also merits consideration. In my view, the report was an official communication from the petitioner to the head of the department. The factual happenings in the prison were highlighted and what was being spoken about was only a caution. A pure official communication without it being referred to any other department or a quarter, cannot become the ingredient of Section 499 of the IPC. Section 499 of the IPC “499. Defamation.—Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person. Explanation 1.—It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives. Explanation 2.—It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. Explanation 3.—An imputation in the form of an alternative or expressed ironically, may amount to defamation. Explanation 4.—No imputation is said to harm a person's reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a lothsome state, or in a state generally considered as disgraceful. A perusal at the provision of law that is invoked to bring in allegations under Section 499 of the IPC clearly mandates that one who makes or publishes any imputation concerning any person with an intention to harm is said to defame the said person, except the issues covered under the exceptions. Therefore, making or publishing is the nucleus of the section. The words makes or publishes if considered qua the impugned communication, it becomes clear that even if it is made, it is not published to any quarter by the petitioner. Making of the communication is also restricted to the reporting of outcome of the inspection and between two people. It is, on its perusal, a pure official communication between two people as to what was happening in the prison during the inspection that was conducted. In these circumstances, reference being made to the judgment of the Apex Court in the case of RAJESH RANGARAJAN V. CROP CARE FEDERATION OF INDIA AND ANOTHER4, becomes apposite. The Apex Court considering an identical circumstance of official communication has held as follows: “2. Mr Raj Panjwani, learned Senior Counsel appearing for the appellant has drawn our attention to Annexure P-1, which is the Report of the Fact-Finding Committee which deals with farmers' deaths due to exposure to pesticides in Warangal District of Andhra Pradesh. We have carefully perused the Report. The relevant page of the Report, which is at p. 40 of the paper book, clearly indicates that the Fact-Finding Committee was not aimed at doing health study or in- depth scientific investigation, but to do an indicative study which would lead to a larger health study. The general tenor of the Report indicates that the Report was meant to focus the harmful effects of exposure to pesticides. It is quite evident from the Report that it was not meant to harm, hurt or defame any individual or the manufacturing company. Mr Panjwani, learned Senior Counsel appearing for the appellant also fairly submitted that the Report was not intended to harm or defame any individual or manufacturers of pesticides. 3. In our considered opinion, the complaint filed under Sections 120-B, 34, 500, 501 and 502 of the Penal Code, 1860 lacks basic ingredients. According to our view, no useful purpose would be served in permitting the trial court to proceed with the complaint which lacks the basic ingredients of the aforementioned sections. Consequently, we quash the complaint.” (Emphasis supplied) The Apex Court was considering an official report by the accused therein and has held that it is an official communication and no offence under Section 500 or 501 of the IPC can be made out of such official communication. 19. In the light of the preceding analysis and the admitted fact that no sanction is sought or granted by the Competent Authority to prosecute the petitioner for offences punishable under Sections 499 and 500 of the IPC and the fact that the communication being purely official between two people, the contents of it, in the considered view of this Court, would not attract the ingredients of Section 499 of the IPC, as it cannot be held to be defamatory. Therefore, I hold issue No.2 in favour of the petitioner for the reasons indicated hereinabove. 20. It is trite that criminal prosecution is a serious matter; it affects the liberty of a person, therefore, in cases where this Court finds that permitting further proceedings would become an abuse of the process of the law or would result in miscarriage of justice, exercise of jurisdiction under Section 482 of the Cr.P.C. to obliterate such proceedings would become imperative. Wherefore, further proceedings against the petitioner, cannot be permitted to be continued. 21. For the aforesaid reasons, I pass the following: (i) The Criminal Petition is allowed. (ii) The impugned proceedings in C.C.No.2610 of 2020 pending before the IX Additional Chief Metropolitan Magistrate, Bangalore stands quashed.
The Karnataka High Court has decided that a formal, official message shared only between two people, and not sent to other departments or the public, cannot be considered defamation under Section 499 of the Indian Penal Code (IPC). Justice M Nagaprasanna, a single judge, agreed with a request made by D. Roopa. She currently works as the Managing Director of the Karnataka Handicraft Development Corporation. The judge stopped the court case against her in the lower magistrate court. This case was based on a complaint by former police officer HN Sathyanarayana Rao, who accused her of crimes under sections 357, 499, and 500 of the Indian Penal Code (IPC). The judge stated that it was clear no official permission (called 'sanction') had been asked for or given by the proper authority to charge D. Roopa with crimes under Sections 499 and 500 of the IPC. Also, because the message was purely official and only between two people, the court believed its content did not fit the definition of defamation under Section 499 of the IPC. Case details: In 2017, D. Roopa (the petitioner) worked as the Deputy Inspector General (DIG) of Prisons for the Karnataka government. She and the other person involved (the respondent, HN Sathyanarayana Rao) were in the same department, and she was a lower-ranked officer. The accusation was that on July 12, 2017, D. Roopa defamed the respondent. She supposedly did this by writing things that were published in the media, which led to charges under Sections 357, 499, and 500 of the IPC. The respondent argued that D. Roopa's words had damaged his reputation. He claimed she did this by making public a report she had sent to the head of their department. The respondent filed a complaint under a specific section (200) of the Code of Criminal Procedure (Cr.P.C.). The Magistrate court reviewed the complaint and decided to formally open criminal cases against D. Roopa. The court also sent her an official order to appear, called a summons, as the accused person. Petitioners submissions: D. Roopa's lawyer, Madhukar Deshpande, argued that because the alleged actions happened while she was performing her official duties, special permission (sanction) under Section 197 of the Code of Criminal Procedure (Cr.P.C.) was absolutely required. He noted that no such permission was given to charge her, which should make the entire legal process invalid. Her lawyer also stated that the key elements needed to prove defamation under Section 499 of the IPC were missing in this case. He explained that D. Roopa had only sent the message to the Head of the Department as part of her official job. There was no proof that she had given it to TV or print news. He argued that simply sharing true official facts or events cannot be considered defaming an officer, especially the respondent. Respondents submissions: The respondent's lawyer, Senior Advocate Puttige R. Ramesh, argued that D. Roopa was in a different job position when the complaint was filed. Because of this, he claimed that no special permission (sanction) was needed to prosecute her. He also argued that the incident leading to the supposed defamation wasn't related to D. Roopa's public duties. Therefore, she couldn't claim protection under Section 199(2) of the Code of Criminal Procedure (Cr.P.C.). He added that D. Roopa sent the message not just to her department head but also to print and TV news. He said it would be up to D. Roopa to prove her innocence during a trial. Court findings: The court agreed that there was no argument that D. Roopa sent the report to the respondent as part of her official duties. The report itself described inspections she had carried out in her official role. So, the court found that all her actions were directly connected to her job and official position. The court stated that if a public servant's official actions are claimed to be a crime, and a criminal case is started based on these claims, then official permission (sanction) under Section 197 is absolutely necessary to begin that criminal case. The court further explained that it had recognized the accusations against D. Roopa for crimes under Sections 357, 499, and 500 of the IPC. These are indeed crimes under the law. However, the court should not have recognized these crimes without the proper authority first giving an official permission (sanction). No further legal steps should have been taken without this sanction. The judge also disagreed with the respondent's argument that sanction was not needed because D. Roopa had changed her job. The court stated, "Changing a job position is not the same as leaving government service completely." It explained that changing jobs does not stop someone from being a public servant. D. Roopa remained a public servant in whatever role she held. If an action done by a public servant at any time during their service – even after retirement in some cases – is claimed to be a crime, then official permission (sanction) under Section 197 of the Code of Criminal Procedure (Cr.P.C.) is absolutely necessary to start a criminal case. Furthermore, the court pointed out that Section 499 of the IPC clearly states that someone who creates or shares a statement about another person, intending to harm their reputation, is considered to have defamed them. This rule applies unless the statement falls under specific exceptions. The court emphasized that "making or publishing" a statement is the central part of this law. Looking at the message D. Roopa sent, it was clear that even if she "made" it, she did not "publish" it to anyone else. The creation of the message was limited to reporting inspection results between two people. The court found that it was simply a formal, official message shared between two individuals about what was found during a prison inspection. So, the court concluded that because the message was purely official and only shared between two people, its content did not meet the definition of defamation under Section 499 of the IPC. Therefore, it could not be considered defamatory. Because of these reasons, the court agreed with D. Roopa's request and stopped all further legal action against her.
The petitioner is before this Court calling in question the proceedings in C.C.No.2610 of 2020 pending before the IX Additional Chief Metropolitan Magistrate, Bangalore, whereby the learned Magistrate takes cognizance for the offences punishable under Sections 357, 499 and 500 of the IPC. 2. Heard Sri.Madhukar Deshpande, learned counsel appearing for petitioner and Sri.Puttige.R.Ramesh, learned senior counsel appearing for the respondent. 3. Shorn of unnecessary details, facts in brief germane for consideration of the subject lis are as follows:- The respondent/complainant is an officer of the Indian Police Service having retired on attaining the age of superannuation on 31.07.2017. The petitioner was posted as Deputy Inspector General (DIG) Prisons in the Department of Prisons, Government of Karnataka. The petitioner and the respondent were in the same department and the petitioner was an officer of a rank below to that of the respondent. On 12.07.2017 the allegation is that the petitioner had made defamatory statement on the respondent by way of written words published in the media and had thereby committed offences punishable under Sections 357, 499 and 500 of the IPC. The contention of the respondent is that by the said words, the petitioner had tarnished the image of the respondent by giving wide publicity of the report which was communicated by the petitioner to the Head of the Department. The wide publicity alleged is for the reason print and visual media carried the said 4. On the basis of the aforesaid report dated 12-07-2017, the respondent registers a complaint invoking Section 200 of the Cr.P.C. for offences punishable under Sections 357, 499 and 500 of the IPC for defamation. After recording statements of witnesses, the petitioner and the respondent, the learned Magistrate in terms of order dated 22-10-2019 takes cognizance and directs registration of criminal case against the petitioner and also issued summons against the accused/petitioner. It is at that juncture the petitioner has knocked the doors of this Court in the subject petition. 5. Heard Sri Madhukar Deshpande, learned counsel appearing for the petitioner and Sri Puttige R.Ramesh, learned Senior Counsel appearing for the respondent. 6. The learned counsel for the petitioner would urge the following contentions: (a) That since the allegation that is made is performed during the course of conduct of official duty sanction under Section 197 of the Cr.P.C. is mandatory. Admittedly, there is no sanction in the case accorded to prosecute the petitioner and therefore, the entire proceedings would stand vitiated. (b) The ingredients that are required to drive home Section 499 of the IPC are totally absent in the case at hand as the petitioner has communicated to the Head of the Department in the official capacity and there is no evidence that the petitioner has communicated the same to the media both visual and print. Official communication of true facts or events cannot mean that they would be defamation of any officer much less the respondent. (c) Section 199 of the Cr.P.C. permits only an aggrieved person to invoke Section 499 or Section 500 of the IPC. The complainant cannot be construed to be an aggrieved person. In support of his contentions, he would place reliance on the following judgments: (i) RAMNATH GOENKA v. A.R.RAJI – 1981 SCC OnLine (ii) P.K. GHOSH AND ANOTHER v. SUKHBIR SHARMA – (iii) D.DEVARAJA v. OWAIS SABEEN HUSSAIN - (2020) 7 (iv) RAJESH RANGARAJAN v. CROP CARE FEDERATION 7. On the other hand, the learned senior Counsel representing the respondent would submit that the petitioner was, on the date of lodging of the complaint, holding a different post and, therefore, no sanction is required to prosecute the petitioner. The incident that has led to the alleged defamation is not referable to any public work that was discharged by the petitioner and, therefore, protection under Section 199(2) of the Cr.P.C. is not available. He would submit that the communication is sent by the petitioner to the head of the Department as also to both print and visual media and as such, it is a matter of trial for the petitioner to come out clean in the proceedings. The learned senior counsel would place reliance upon the following judgments: (i) PARKASH SINGH BADAL AND ANOTHER v. STATE (ii) L.NARAYANA SWAMY v. STATE OF KARNATAKA AND (iii) AMRIK SINGH v. STATE OF PEPSU – AIR 1955 SC (iv) SUBRAMANIAN SWAMY v. MANMOHAN SINGH AND (v) URMILA DEVI v. YUDHVIR SINGH – (2013) 15 SCC (vi) RAJIB RANJAN AND OTHERS v. R.VIJAYKUMAR – (vii) K.K.MISHRA v. STATE OF MADHYA PRADESH AND 8. I have given my anxious consideration to the submissions of the learned counsel appearing for the petitioner and the learned senior counsel for the respondent and perused the material on record. In furtherance whereof, the following issues fall for my consideration: (i) Whether proceedings instituted for offences punishable under Sections 499 and 500 of the IPC for defamation would be rendered illegal for want of sanction under Section 197 of the Cr.P.C.? (ii) Whether the alleged communication/report dated 12-07-2017 amounts to defamation within the meaning of ingredients of Section 499 of the IPC against the (i) Whether proceedings instituted for offences punishable under Sections 499 and 500 of the IPC for defamation would be rendered illegal for want of sanction under Section 197 of the Cr.P.C.? The petitioner and the respondent are feathers of the same department. Prior to the entry of the petitioner as DIG, Prisons, the respondent was working as DGP & Inspector General (Prisons). The petitioner while working as DIG (Prisons) conducted a review about functioning of prison on 12.07.2017. The outcome of review was a communication to the DGP & Inspector General (Prisons) in the form a report. The report is about continued irregularities in the Prison. The narration contains the inspection conducted by the petitioner from time to time. Since the entire issue revolves around the communication dated 12-07-2017 the same is quoted herein for the purpose of “«µÀAiÀÄ: ¨ÉAUÀ¼ÀÆgÀÄ ¸ÉAlæ¯ï eÉʯï£À°è CªÁåºÀvÀªÁV £ÀqÉAiÀÄÄwÛgÀĪÀ ªÉÄîÌAqÀ «µÀAiÀÄPÉÌ ¸ÀA§A¢ü¹zÀAvÉ ¢£ÀAPÀ: 29-06-2017 gÀAzÀÄ ¸ÉAlæ¯ï eÉÊ°£À ªÀÄÄRå ªÉÊzÁå¢üPÁjUÀ¼ÀÄ ºÁUÀÆ £Á®ÄÌ d£À ªÉÊzÀågÀÄ ¸ÉÃjzÀAvÉ MlÄÖ 10 d£À ªÉÊzÀåQÃAiÀÄ F PÀÄjvÀÄ ¸À«ªÀgÀªÁzÀ ªÀgÀ¢AiÀÄ£ÀÄß PÀ¼ÀÄ»¹PÉÆqÀ®Ä £Á£ÀÄ ¸ÉAlæ¯ï eÉÊ°£À ªÀÄÄRå 29-06-2017PÉÌ £ÀqÉ¢zÀÄÝ, WÀl£ÉAiÀÄ°è AiÀiÁgÀ vÀ¥ÀÄà, CªÀgÀ ªÉÄÃ¯É AiÀiÁªÀ ²¸ÀÄÛPÀæªÀÄ vÉUÉzÀÄPÉÆArgÀÄvÁÛgÉ JA§ §UÉÎ ¸ÉAlæ¯ï eÉÊ°£À ªÀÄÄRå C¢üÃPÀëPÀjAzÀ EA¢ªÀgÉUÀÆ ªÀgÀ¢ ºÁUÁV £Á£ÀÄ ¢£ÁAPÀ: 10-07-2017 gÀAzÀÄ RÄzÁÝV C°ègÄÀ ªÀ «µÀAiÀÄUÀ¼À£ÀÄß w½zÀÄPÉƼÀî®Ä ¸ÉAlæ¯ï eÉÊ°UÉ ¨É½UÉÎ ¨sÉÃnPÉÆlÄÖ ¸ÀAeÉ 06-30 gÀªÀgÉUÉ C°èzÀÄÝ, £ÀAvÀgÀ eÉÊ°¤AzÀ ºÉÆgÀ ºÉÆgÀngÀÄvÉÛãÉ. F ¸ÀªÀÄAiÀÄzÀ°è ªÀÄÄRå C¢üÃPÀëPÀgÀÄ eÉÊ°£À°è PÀvÀðªÀåzÀ°è ºÉÆÃVgÀ§ºÀÄzÉAzÀÄ ºÉýgÀÄvÁÛgÉ. ªÀÄÄRå C¢üÃPÀëPÀgÀÄ ¥ÉÆÃ£ï ªÀÄÄSÁAvÀgÀ vÀªÀÄä UÉÊgÀÄ ºÁdjAiÀÄ §UÉÎ £À£ÀUÉ w½¸À§ºÀÄ¢vÀÄÛ. DzÀgÉ w½¹gÀĪÀÅ¢®è. ¸ÀAeÉ 06-30 ªÀgÉUÉ £Á£ÀÄ ¢£ÁAPÀ: 10-07-2017 gÀAzÀÄ £Á£ÀÄ ¨ÉAUÀ¼ÀÆgÀÄ ¸ÉAlæ¯ï eÉÊ°£À°è «ZÁgÀuÉ 1. ¢£ÁAPÀ: 29-06-2017 gÀAzÀÄ ªÀÄzÁåºÀß 02-40 PÉÌ ¸ÀeÁ §A¢ ¸ÀASÉå 4755 £ÁUÉÃAzÀæ ªÀÄÆwð JA§ÄªÀªÀ£ÀÄ eÉÊ°£À D¸ÀàvÉæUÉ §AzÀÄ ªÀÄÄRå ªÉÊzÁå¢üPÁjUÀ½UÉ C®èAiÉÄ EzÀÝ PÀ©âtzÀ PÀÄað JwÛ ºÉÆqÉAiÀÄ®Ä AiÀÄwß¹zÀ®èzÉ CªÀgÀ gÀÆA£À a®PÀ ªÀÄ£ÉÆÃgÉÆÃVAiÉƧâ D ¸ÀeÁ §A¢AiÀÄ£ÀÄß vÀqÉzÀÄ ºÉaÑ£À C£ÁºÀÄvÀ DUÀĪÀÅzÀ£ÀÄß vÀ¦à¹gÀÄvÁÛ£É. EzÀjAzÀ ªÉÊzÀågÉ®ègÀÆ ¨sÀAiÀÄUÀæ¸ÀÜgÁVgÀÄvÁÛgÉ. F WÀl£ÉAiÀÄ ²¸ÀÄÛPÀæªÀĪÀ£ÀÄß vÉUÉzÀÄPÉÆArgÀĪÀÅ¢®è. 2. eÉÊ°£À°è UÁAd ªÁå¥ÀPÀªÁV G¥ÀAiÉÆÃV¸ÀÄvÁÛgÉ JA§ ªÀiÁ»w £À£ÀVzÀÄÝ, EzÀgÀ §UÉÎ ¸ÀvÁå¸ÀvÀåvÉ w½AiÀÄ®Ä ¢£ÁAPÀ: 10-07-2017 gAÀzÄÀ Drug test Kit §¼À¹ ªÉÆlÖ ªÉÆzÀ®£É ¨ÁjUÉ CA¢£À ¢£À 25 d£ÀjUÉ qÀæUïì mɸïÖ ªÀÄÆvÀæ ¥ÀjÃPÉë ªÀiÁr¹gÀÄvÉÛãÉ. CzÀgÀ°è PÀAqÀÄ §AzÀ DWÁvÀPÁj «µÀAiÀĪÉAzÀgÉ 25 d£ÀgÀ°è 18 d£ÀjUÉ UÁAd ¥Á¹nªï EgÀÄvÀÛzÉ JAzÀÄ ªÉÊzÁå¢üPÁjUÀ½AzÀ ªÀgÀ¢ §A¢zÉ. Name of the Prisoner detected to be using substance (Drug Abuse) by Laboratory Reports 15. William Anthony raj UTP – 13666 Benzodiazepine PÉÊ¢UÀ½UÉ UÁAeÁ ¸ÀgÀ§gÁdÄ ¤vÀå DUÀÄwÛzÀÄÝ, CzÀ£ÀÄß vÀqÉUÀlÖ®Ä AiÀiÁªÀÅzÉà PÀæªÀÄ 3. £Á®ÄÌ wAUÀ¼À »AzÉ (£Á£ÀÄ F ºÀÄzÉÝAiÀÄ ¥ÀzÀUÀæºÀt 23-06-2017 ªÀiÁrzÀÄÝ, 4. PÁgÁUÀȺÀ D¸ÀàvÉæAiÀÄ°è gÉPÁqïð gÀÆA JA§Ä¢zÀÄÝ, PÉÊ¢UÀ¼À ªÉÊzÀåQÃAiÀÄ zÁR¯ÉUÀ¼À£ÀÄß C°è EnÖzÀÄÝ, C£ÉÃPÀ ¨Áj PÉÆÃmïðUÀ½UÉ F zÁR¯ÉUÀ¼À£ÀÄß ºÁdgÀÄ¥Àr¸À¨ÉÃPÁUÀÄvÀÛzÉ F gÉPÁqïð gÀÆA£À ¤ªÀðºÀuÉUÁV ªÉÊzÁå¢üPÁjUÀ½UÉ ¸ÀºÁAiÀÄ ªÀiÁqÀ®Ä dªÁ¨ÁÝjAiÀÄÄvÀ ¸ÀPÁðj £ËPÀgÀgÁzÀ ªÁqÀðgïUÀ¼À£ÀÄß ¨Áj PÉÆÃmïðUÉ ¤ÃqÀ¨ÉÃPÁzÀ zÁR¯ÉUÀ¼ÀÄ PÁuÉAiÀiÁVªÉ. C®èzÉ ªÉÊzÁ¢üPÁjUÀ¼À UÀªÀÄ£ÀPÉÌ ¨ÁgÀzÉ zÁR¯ÉUÀ¼À£ÀÄß ¨Éïï (Bail) ¸À®ÄªÁV ºÉÆgÀUÉ ¸ÁV¹ zÀÄgÀÄ¥ÀAiÉÆÃUÀ ªÀiÁqÀ¯ÁUÀÄwÛzÉ. 5. PÉÊ¢UÀ¼ÀÄ vÀªÀÄUÉãÀÆ DgÉÆÃUÀåzÀ ¸ÀªÀĸÉå E®è¢zÀÝgÀÆ ªÉÊzÀgÀ §½ §AzÀÄ “eÉÊ°£À ºÉÆgÀVgÀĪÀ D¸ÀàvÉæAiÀÄ°è zÁR¯ÁUÀ®Ä C£ÀÄPÀÆ®ªÁUÀĪÀAvÉ ªÀgÀ¢ PÉÆr” JAzÀÄ £ÀqÉzÀÄPÉƼÀî¢zÀÝgÉ fêÀ ¸À»vÀ ©qÀĪÀÅ¢®èªÉAzÀÄ ¨ÉzÀjPÉ ºÁQgÀÄvÁÛgÉ. £ÉëĹgÀĪÀÅzÀjAzÀ C°è PÉ®ªÀÅ ªÀÄ£ÉÆÃgÉÆÃVUÀ¼À aQvÉìUÉ §¼À¸ÀĪÀ ¤zÉæ ªÀiÁvÉæUÀ¼À£ÀÄß ¸ÁªÀiÁ£Àå gÉÆÃVUÀ¼À PÉÊUÉ ¹UÀĪÀ ºÁUÉ zÀÄgÀÄ¥ÀAiÉÆÃUÀ 7. ¸ÁÖöåA¥ï ¥ÉÃ¥Àgï ºÀUÀgÀtzÀ ªÀÄÄRå DgÉÆæ C§Äݯï PÀjA¯Á¯ï vÉ®V FvÀ£ÀÄ 06 wAUÀ¼À »AzÉ «Ã¯ï ZÉÃgï G¥ÀAiÉÆÃV¸ÀÄwÛzÁÝUÀ ¸ÀºÁAiÀÄPÀgÀ£ÀÄß jAzÀ 4 d£À «ZÁgÀuÁ PÉÊ¢UÀ¼ÀÄ ºÁdjzÀÄÝ, DvÀ¤UÉ PÁ®Ä MvÀÄÛªÀÅzÀÄ, PÉÊ bÉÃA§gï£À°èAiÉÄà EgÀĪÀ ¹¹n«AiÀÄ°è £ÉÆÃrgÀÄwÛÃgÉAzÀÄ ¨sÁ«¹gÀÄvÉÛãÉ. «ZÁgÀuÁ¢üãÀ PÉÊ¢UÀ¼ÀÄ (Undertrial Prisoners) UÀ¼À£ÀÄß vÉ®VAiÀÄAvÀºÀ ¸ÀeÁ §A¢ (Convicts) eÉÆvÉUÉ ¨ÉgÉAiÀÄ®Ä ©lÖgÉ PÁgÁUÀȺÀ ¤AiÀĪÀÄUÀ¼À G®èAWÀ£É JAzÀÄ ¸ÉAlæ¯ï eÉÊ°£À ªÀÄÄRå C¢üÃPÀëjUÉ UÉÆwÛzÀÝgÀÆ PÀæªÀÄ PÉÆÃmïðUÉ ªÀiÁ»w ¤Ãr ¸ÀºÁAiÀÄPÀ PÉÊ¢UÀ¼À£ÀÄß vÉ®V¬ÄAzÀ »A¥ÀqÉAiÀĨÉÃPÀÄ 8. Disproportionate Assets PÉøï£À°è ¸ÀeÉ C£ÀĨsÀ«¸ÀÄwÛgÀĪÀ vÀ«Ä¼ÀÄ£Ár£À G®èAWÀ£ÉAiÀiÁVgÀÄvÀÛzÉ. F «µÀAiÀÄ vÀªÀÄä UÀªÀÄ£ÀPÌÉ EzÀÄÝ, EzÀ£ÀÄß ºÀt ®AZÀ PÉÆqÀ¯ÁVzÉ JA§ ªÀiÁwzÀÄÝ, F C¥ÁzÀ£ÉUÀ¼ÀÄ zÀÄgÀzÀĵÀÖPÀgÀªÁV vÀªÀÄä ªÉÄÃ¯É EgÀĪÀÅzÀjAzÀ vÁªÀÅ EzÀgÀ §UÉÎ UÀªÀÄ£À ºÀj¹ PÀÆqÀ¯Éà eÉÊ°£À vÀ¦àvÀ¸ÀÜ C¢üPÁj/¹§âA¢AiÀĪÀgÀ ªÉÄÃ¯É ¤zsÁðPÀëtåªÁV PÀpt ²¸ÀÄÛPÀæªÀÄ vÉUÉzÀÄPÉƼÀî®Ä PÉÆÃjzÉ. 9. £Á£ÀÄ ¢£ÁAPÀ: 23-06-2017 gÀAzÀÄ F ºÀÄzÉÝ C®APÀj¹zÁV¤AzÀ®Æ vÁªÀÅ gÀAzÀÄ vÀªÀÄä PÀbÉÃjAiÀÄ ¥ÀvÀæ ¸ÀASÉå:rf¦.¦DgïL:JA-18:2017 ªÀÄÆ®PÀ £Á£ÀÄ CzÀgÀ »A¢£À ¢£À CAzÀgÉ ¢£ÁAPÀ: 10-07-2017gÀAzÀÄ ¸ÉAlæ¯ï eÉʯï YÁÐ¥À£Á ¥ÀvÀæ PÉÆnÖgÀÄwÛÃj. rLf ¦æ¸À£Àì DzÀ £À£ÀVgÀĪÀ PÁAiÀÄðªÁå¦ÛAiÀÄ°è ¸ÉAlæ¯ï eÉʯïUÉ ¨sÉÃnPÉÆlÄÖ «ZÁgÀuÉ, ªÉÄðéZÁgÀuÉ £ÀqɸÀĪÀ C¢üPÁgÀ PÁ£ÀÆ£ÀÄ ¥ÀæPÁgÀ EzÀÝgÀÆ vÁªÀÅ F jÃwAiÀÄ YÁÐ¥À£Á PÉÆnÖgÀĪÀÅzÀÄ PÁgÁUÀȺÀzÀ DqÀ½vÀªÀÅ CvÀåAvÀ PɼÀ¸ÀÜgÀ vÀ®Ä¦zÉ JAzÀÄ ºÉüÀ®Ä ±ÉÆÃZÀ¤ÃAiÀĪɤ¸ÀÄvÀÛzÉ. vÀªÀÄä ªÉÄðgÀĪÀ C¥ÁzÀ£ÉUÀ½AzÀ®Æ vÁªÀÅ ªÀÄÄPÀÛgÁUÀ®Ä vÀ¦àvÀ¸ÀÜgÀ ªÉÄÃ¯É PÀpt ²¸ÀÄÛPÀæªÀÄ vÉUÉzÀÄPÉƼÀî¨ÉÃPÉAzÀÄ «£ÀAw¸ÀÄvÉÛãÉ. 10 d£À D¸ÀàvÉæ ªÉÊzÀågÀÄ/¹§âA¢ ¸À»AiÉÆA¢UÉ ¢£ÁAPÀ: 29-06-2017 gÀAzÀÄ PÀ¼ÀÄ»¹PÉÆnÖgÀĪÀ The narration brings about some grave aspects of illegalities happening in the Prison and also suggested corrective measures that need to be taken. While saying so, it was also noted that there were some allegations against the respondent that also needs to be looked into and stringent action be taken against those who are making such allegations against the respondent. 10. The communication is not sent to any other person, as could be seen from the communication itself. It is a simple communication from the petitioner to the respondent who is the Head of Prisons. It would have been a circumstance altogether different if the communication had been made to any other quarter in the Department, Government, print or Visual media. It transpires that newspapers next day carried the report and even the visual media. It is after the publication came about, the respondent retired from service on 31-07-2017 on attaining the age of superannuation. On his retirement, he registers the impugned private complaint against the petitioner alleging that the act of the petitioner in communicating the report and the same being published in both print and visual media has defamed him. The alleged defamatory part of the communication is what is highlighted in the afore-quoted report dated 12.07.2017. On the registration of the private complaint, recording of sworn statement took place and the learned Magistrate takes cognizance of the offence punishable under Sections 357, 499 and 500 of the IPC against the petitioner. It is at that juncture the petitioner has knocked the doors of this 11. It is not, cannot be in dispute that the report communicated by the petitioner to the respondent was in the official capacity. The narration in the report is a blend of inspection taken up by the petitioner from time to time in the official capacity. Therefore, the entire act revolves around the official duties and on the official capacity of the petitioner. If any act being done by a public servant in the official capacity is to be alleged to have a colour of crime and criminal law is to be set in motion, on such allegations sanction for setting such criminal law in motion in terms of Section 197 is imperative. Sub-section (1) of Section 197 of the Cr.P.C. reads as follows: “197. Prosecution of Judges and public servants.—(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction save as otherwise provided in the Lokpal and Lokayuktas Act, 2013 (1 of (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government: Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression “State Government” occurring therein, the expression “Central Government” were substituted. Explanation.—For the removal of doubts it is hereby declared that no sanction shall be required in case of a public servant accused of any offence alleged to have been committed under section 166A, section 166B, section 354, section 354A, section 354B, section 354C, section 354D, section 370, section 375, section 376, section 376A, section 376C, section 376D or section 509 of the Indian Penal Code (45 of 1860).” (Emphasis supplied) Section 197 of the Cr.P.C. which deals with prosecution of public servants mandates that no Court shall take cognizance of the offence except with the previous sanction of the Competent 12. It is an admitted fact that the Court has taken cognizance of the offence against the petitioner for offences punishable under Sections 357, 499 and 500 of the IPC. Without doubt, they are offences punishable under the Code and the Court could not have taken cognizance without an order of sanction from the hands of the Competent Authority being placed before the Court. There could have been no question of further proceedings being taken up without an order of sanction. Several Constitutional Courts have, while considering a case that is instituted for the offence punishable under Section 499 or 500 of the IPC which deals with defamation have so interpreted that sanction under Section 197 of the Cr.P.C. is imperative. If the kernel of the article or letter alleging defamation is seen, as quoted (supra), it would demonstrate reasonable connection to the discharge of official duty of the petitioner. The High Court of Madras in the case of RAMNATH GOENKA V. A.R. RAJI1 has held as follows: “10. He also relies on the extracts incorporated in the above decision from Hori Ram Singh's case reported in AIR 1939 FC 43 : ((1939) 40 Cri LJ 468) and AIR 1948 PC 128 : ((1948) 49 Cri LJ 503). He also referred to me a decision of our High Court by Maheswaran, J. reported in Ramachandran In re, 1979 Mad LW (Cri) 180 : (1980 Cri LJ 349). The learned Judge, after referring to a number of cases under S. 197 Cri. P.C. has observed at page 184 (of Mad LW) (Cri): (at p. 353 “I must point out that the act entitled to the protection of S. 197 Cri. 11. There is a plethora of decisions on the application of S. 197 Cri. P.C. but ultimately the test to be applied, whether the sanction is needed or not, depend on circumstances of each case. The learned counsel for the respondent brings to my notice the official functions and duties of the Principal Information Officer, press Conference Bureau, Government of “Advising Government on the ministries. Disseminating information on the policies and activities of the Government; Maintaining liaison with press; the reporting to Government public policies and performance as reflected in the press.” 12. Thus it is seen that the handing over of the hand outs for publication is undoubtedly characteristic of the official duty of the respondent, I have no doubt that the acts complained of are so interrelated with the official duty of the Principal Information Officer, so as to attract the protection afforded by S. 197 Cri. P.C. The acts are so integrally connected with the duty attached to the officer it is not possible to separate them. At any rate, there is a reasonable connection between the act alleged by the respondent and his official duty. What has been alleged against him is certainly something to do with his official duty. Under these circumstances, opposing the principles laid down in the decisions referred above, I feel the order passed by the learned Chief Metropolitan Magistrate is correct. The revision fails and it is dismissed.” (Emphasis supplied) The High Court of Delhi in the case of P.K. GHOSH & ANOTHER V. SUKHBIR SHARMA2, has held as follows: “5. That part, the said letter contains certain comments regarding the complaint made by the respondent against the Commissioner (Personnel) of the D.D.A. It does not contain any defamatory word against the respondent. That being so, there was absolutely no justification for taking cognizance of the offence under Section 500, IPC against petitioner No. 1. 6. It is undisputed that the petitioner No. 1 is the Vice-Chairman of the D.D.A. D.D.A. is an authority created under the statute by the Government and such an authority is an affair of the State and the Officer appointed as the Vice- Chairman of the D.D.A. is definitely a public servant employed in connection with the affairs of the State within the meaning of Section 197, Cr. P.C. Consequently, prosecution of the petitioner No. 1 is also bad for want of sanction under 7. So far as the petitioner No. 2 is concerned, there is nothing on record to make out any case against him. Admittedly, he is not he author of the letter in question. He had neither made nor published any defamatory statement against the respondent. It has to be borne in mind that setting criminal law in motion is fraught with serious consequences. Before issuing a process against the accused, the Magistrate should satisfy himself that the allegations made in the complaint on its face values and the sworn statements coupled with the documents filed prima facie reveal the commission of any offence against him. In the instant case, the impugned order does not reflect that the learned Magistrate has applied his mind to the facts of the case and the law applicable thereto. On the other hand, I am constrained to observe that the learned Magistrate has acted in a mechanical manner in taking cognizance of the offence against the petitioners. In this context, I may usefully excerpt the following observations of Their Lordships of the Supreme Court in M/s. Pepsi Food Ltd. v. Special Judicial Magistrate, AIR criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complaint has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.” For the foregoing reasons, the petition is allowed and the impugned order dated 3.3.1999 is set aside and the proceedings emanating from the complaint filed by the respondent and pending on the file of the Metropolitan Magistrate, Delhi are quashed.” (Emphasis supplied) In the light of the afore-quoted judgments of both the High Court of Madras and High Court of Delhi, interpreting the interplay between Section 499 and 500 of the IPC and Section 197 of the Cr.P.C. it becomes unmistakably clear that sanction under Section 197 of the Cr.P.C. would be imperative, if the alleged defamatory statements are in the course of discharge of official 13. The aforesaid interpretation is further amplified by the Apex Court in the case of D.DEVARAJA3 (supra), wherein the Apex Court has interpreted sanction under Section 197 of the Cr.P.C. to be imperative, if the allegation that drives a case to the concerned criminal Court is in discharge of official duty or has a reasonable connection to it. The Apex Court has held as “30. The object of sanction for prosecution, whether under Section 197 of the Code of Criminal Procedure, or under Section 170 of the Karnataka Police Act, is to protect a public servant/police officer discharging official duties and functions from harassment by initiation of frivolous retaliatory criminal proceedings. As held by a Constitution Bench of this Court in Matajog Dobey v. H.C. Bhari: (AIR p. 48, “15. … Public servants have to be protected from harassment in the discharge of official duties while ordinary citizens not so engaged do not require this There is no question of any discrimination between one person and another in the matter of taking proceedings against a public servant for an act done or purporting to be done by the public servant in the discharge of his official duties. No one can take such proceedings without such sanction.” 31. In Pukhraj v. Stateof Rajasthan this Court held: “2. … While the law is well settled the difficulty really arises in applying the law to the facts of any particular case. The intention behind the section is to prevent public servants from being unnecessarily harassed. The section is not restricted only to cases of anything purported to be done in good faith, for a person who ostensibly acts in execution of his duty still purports so to act, although he may have a dishonest intention. Nor is it confined to cases where the act, which constitutes the offence, is the official duty of the official concerned. Such an interpretation would involve a contradiction in terms, because an offence can never be an official duty. The offence should have been committed when an act is done in the execution of duty or when an act purports to be done in execution of duty. The test appears to be not that the offence is capable of being committed only by a public servant and not by anyone else, but that it is committed by a public servant in an act done or purporting to be done in the execution of duty. The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty. Nor need the act constituting the offence be so inseparably connected with the official duty as to form part and parcel of the same transaction. What is necessary is that the offence must be in respect of an act done or purported to be done in the discharge of an official duty. It does not apply to acts done purely in a private capacity by a public servant. Expressions such as the “capacity in which the act is performed”, “cloak of office” and “professed exercise of the office” may not always be appropriate to describe or delimit the scope of section. An act merely because it was done negligently does not cease to be one done or purporting to be done in execution of a duty.” 32. In Amrik Singh v. State of PEPSU this Court referred to the judgments of the Federal Court in Hori Ram Singh v. Crown; H.H.B. Gill v. King Emperor and the judgment of the Privy Council in Gill v. R. and held: (Amrik Singh case AIR p. 312, para 8) “8. The result of the authorities may thus be summed up : It is not every offence committed by a public servant that requires sanction for prosecution under Section 197(1) of the Code of Criminal Procedure; nor even every act done by him while he is actually engaged in the performance of his official duties; but if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office, then sanction would be necessary; and that would be so, irrespective of whether it was, in fact, a proper discharge of his duties, because that would really be a matter of defence on the merits, which would have to be investigated at the trial, and could not arise at the stage of the grant of sanction, which must precede the institution of the 33. Section 197 of the Code of Criminal Procedure, 1898, hereinafter referred to as the old Criminal Procedure Code, which fell for consideration in Matajog Dobey, Pukhraj and Amrik Singh is in pari materia with Section 197 of the Code of Criminal Procedure, 1973. The Code of Criminal Procedure, 1973 has repealed and replaced the old Code of Criminal Procedure. 34. In Ganesh Chandra Jew this Court held: (SCC pp. “7. The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant of the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty.” 35. In State of Orissa v. Ganesh Chandra Jew this Court interpreted the use of the expression “official duty” to imply that the act or omission must have been done by the public servant in course of his service and that it should have been in discharge of his duty. Section 197 of the Code of Criminal Procedure does not extend its protective cover to every act or omission done by a public servant while in service. The scope of operation of the section is restricted to only those acts or omissions which are done by a public servant in discharge of official duty. 36. In Shreekantiah Ramayya Munipalli v. State of Bombay this Court explained the scope and object of Section 197 of the old Criminal Procedure Code, which as stated hereinabove, is in pari materia with Section 197 of the Code of Criminal Procedure. This Court held: (AIR pp. 292-93, paras “18. Now it is obvious that if Section 197 of the Code of Criminal Procedure is construed too narrowly it can never be applied, for of course it is no part of an official's duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it. The section has content and its language must be given meaning. What it says is— ‘When any public servant … is accused of any “offence” alleged to have been committed by him while acting or purporting to act in the discharge of his official duty….’ We have therefore first to concentrate on the word 19. Now an offence seldom consists of a single act. It is usually composed of several elements and, as a rule, a whole series of acts must be proved before it can be established. In the present case, the elements alleged against Accused 2 are, first, that there was an “entrustment” and/or “dominion”; second, that the entrustment and/or dominion was “in his capacity as a public servant”; third, that there was a “disposal”; and fourth, that the disposal was “dishonest”. Now it is evident that the entrustment and/or dominion here were in an official capacity, and it is equally evident that there could in this case be no disposal, lawful or otherwise, save by an act done or purporting to be done in an official capacity. Therefore, the act complained of, namely, the disposal, could not have been done in any other way. If it was innocent, it was an official act; if dishonest, it was the dishonest doing of an official act, but in either event the act was official because Accused 2 could not dispose of the goods save by the doing of an official act, namely, officially permitting their disposal; and that he did. He actually permitted their release and purported to do it in an official capacity, and apart from the fact that he did not pretend to act privately, there was no other way in which he could have done it. Therefore, whatever the intention or motive behind the act may have been, the physical part of it remained unaltered, so if it was official in the one case it was equally official in the other, and the only difference would lie in the intention with which it was done: in the one event, it would be done in the discharge of an official duty and in the other, in the purported discharge of it.” 37. The scope of Section 197 of the old Code of Criminal Procedure, was also considered in P. Arulswami v. State of Madras [P. Arulswami v. State of Madras, AIR 1967 SC 776 : 1967 Cri LJ 665] where this Court held : (AIR p. 778, para 6) “6. … It is the quality of the act that is important and if it falls within the scope and range of his official duties the protection contemplated by Section 197 of the Criminal Procedure Code will be attracted.” “If the act is totally unconnected with the official duty, there can be no protection. It is only when it is either within the scope of the official duty or in excess of it that the protection is claimable….” 38. In B. Saha v. M.S. Kochar this Court held : (SCC p. “18. In sum, the sine qua non for the applicability of this section is that the offence charged, be it one of commission or omission, must be one which has been committed by the public servant either in his official capacity or under colour of the office held by him.” 39. In Virupaxappa Veerappa Kadampur v. State of Mysore cited by Mr Poovayya, a three-Judge Bench of this Court had, in the context of Section 161 of the Bombay Police Act, 1951, which is similar to Section 170 of the Karnataka Police Act, interpreted the phrase “under colour of duty” to mean “acts done under the cloak of duty, even though not by virtue of the duty”. 40. In Virupaxappa Veerappa Kadampur this Court referred (at AIR p. 851, para 9) to the meaning of the words “colour of office” in Wharton's Law Lexicon, 14th Edn., which “Colour of office, when an act is unjustly done by the countenance of an office, being grounded upon corruption, to which the office is as a shadow and colour.” 41. This Court also referred (at AIR p. 852, para 9) to the meaning of “colour of office” in Stroud's Judicial Dictionary, 3rd Edn., set out hereinbelow: “Colour:“Colour of office” is always taken in the worst part, and signifies an act evil done by the countenance of an office, and it bears a dissembling face of the right of the office, whereas the office, is but a veil to the falsehood, and the thing is grounded upon vice, and the office is as a shadow to it. But “by reason of the office” and “by virtue of the office” are taken always in the best part.” 42. After referring to the Law Lexicons referred to above, this Court held: (Virupaxappa Veerappa Kadampur case AIR p. 852, para 10) “10. It appears to us that the words “under colour of duty” have been used in Section 161(1) to include acts done under the cloak of duty, even though not by virtue of the duty. When he (the police officer) prepares a false panchnama or a false report he is clearly using the existence of his legal duty as a cloak for his corrupt action or to use the words in Stroud's Dictionary “as a veil to his falsehood”. The acts thus done in dereliction of his duty must be held to have been done “under colour of the duty”.” 43. In Om Prakash v. State of Jharkhand this Court, after referring to various decisions, pertaining to the police excess, explained the scope of protection under Section 197 of the Code of Criminal Procedure as follows: (SCC p. 89, para “32. The true test as to whether a public servant was acting or purporting to act in discharge of his duties would be whether the act complained of was directly connected with his official duties or it was done in the discharge of his official duties or it was so integrally connected with or attached to his office as to be inseparable from it (K. Satwant Singh [K. Satwant Singh v. State of Punjab, AIR 1960 SC 266: 1960 Cri LJ 410]). The protection given under Section 197 of the Code has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant of the protection (Ganesh Chandra Jew [State of Orissa v. Ganesh Chandra Jew, (2004) 8 SCC 40 : 2004 SCC (Cri) 2104] ). If the above tests are applied to the facts of the present case, the police must get protection given under Section 197 of the Code because the acts complained of are so integrally connected with or attached to their office as to be inseparable from it. It is not possible for us to come to a conclusion that the protection granted under Section 197 of the Code is used by the police personnel in this case as a cloak for killing the deceased in cold blood.” (emphasis supplied) 44. In Sankaran Moitra v. Sadhna Das the majority referred to Gill v. R , H.H.B. Gill v. King Emperor; Shreekantiah Ramayya Munipalli v. State of Bombay; Amrik Singh v. State of PEPSU ; Matajog Dobey v. H.C. Bhari ; Pukhraj v. State of Rajasthan ; B. Saha v. M.S. Kochar ; Bakhshish Singh Brar v. Gurmej Kaur ; Rizwan Ahmed Javed Shaikh v. Jammal Patel and held: (Sankaran Moitra case [Sankaran Moitra v. Sadhna Das, (2006) 4 SCC 584 : (2006) 2 SCC (Cri) 358] , SCC pp. 602-603, para 25) “25. The High Court has stated that killing of a person by use of excessive force could never be performance of duty. It may be correct so far as it goes. But the question is whether that act was done in the performance of duty or in purported performance of duty. If it was done in performance of duty or purported performance of duty, Section 197(1) of the Code cannot be bypassed by reasoning that killing a man could never be done in an official capacity and consequently Section 197(1) of the Code could not be attracted. Such a reasoning would be against the ratio of the decisions of this Court referred to earlier. The other reason given by the High Court that if the High Court were to interfere on the ground of want of sanction, people will lose faith in the judicial process, cannot also be a ground to dispense with a statutory requirement or protection. Public trust in the institution can be maintained by entertaining causes coming within its jurisdiction, by performing the duties entrusted to it diligently, in accordance with law and the established procedure and without delay. Dispensing with of jurisdictional or statutory requirements which may ultimately affect the adjudication itself, will itself result in people losing faith in the system. So, the reason in that behalf given by the High Court cannot be sufficient to enable it to get over the jurisdictional requirement of a sanction under Section 197(1) of the Code of Criminal Procedure. We are therefore satisfied that the High Court was in error in holding that sanction under Section 197(1) was not needed in this case. We hold that such sanction was necessary and for want of sanction the prosecution must be quashed at this stage. It is not for us now to answer the submission of the learned counsel for the complainant that this is an eminently fit case for grant of such sanction.” 45. The dissenting view of C.K. Thakker, J. in Sankaran Moitra supports the contention of Mr Luthra to some extent. However, we are bound by the majority view. Furthermore even the dissenting view of C.K. Thakker, J. was in the context of an extreme case of causing death by assaulting the 46. In K.K. Patel v. State of Gujarat [K.K. Patel v. State of Gujarat, this Court referred to Virupaxappa Veerappa Kadampur and held: (K.K. Patel case SCC p. 203, para 17) “17. The indispensable ingredient of the said offence is that the offender should have done the act “being a public servant”. The next ingredient close to its heels is that such public servant has acted in disobedience of any legal direction concerning the way in which he should have conducted as such public servant. For the offences under Sections 167 and 219 IPC the pivotal ingredient is the same as for the offence under Section 166 IPC. The remaining offences alleged in the complaint, in the light of the averments made therein, are ancillary offences to the above and all the offences are parts of the same transaction. They could not have been committed without there being at least the colour of the office or authority which the appellants held.” 47. Mr Poovayya argued that the complaint filed by the respondent against the appellant-accused was in gross abuse of process, frivolous and mala fide. Controverting the allegation of the respondent in his complaint, of police excesses while the respondent was in police custody between 27-2-2013 and 14-3-2013 in connection with Crime No. 12/2012, Mr Poovayya referred to the order of the learned Chief Metropolitan Magistrate dated 28-2-2013 in the said crime case, observing that the respondent had not complained of any ill-treatment by the police. 48. Mr Poovayya submitted that the learned Chief Metropolitan Magistrate had, in any case, passed an order for medical examination of the respondent in view of his complaint of ill-treatment, but the medical reports, upon such examination, showed that there was no injury on the respondent. Mr Poovayya argued that the appellant-accused had been arrayed as the accused vindictively, out of vengeance, since the appellant-accused had, in his capacity as Deputy Commissioner of Police (Central Crime Branch), submitted an affidavit in the habeas corpus petition filed by the respondent's father in the Karnataka High Court. The said affidavit led to the dismissal of the habeas corpus petition. 49. Citing the judgment of this Court in State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, Poovayya argued that where a criminal proceeding is manifestly prompted by mala fides and instituted with the ulterior motive of vengeance due to private or personal grudge, power under Section 482 of the Criminal Procedure Code ought to be exercised to prevent abuse of the process of court and/or to secure the ends of justice. 50. In State of Orissa v. Ganesh Chandra Jew cited by Mr Poovayya, this Court had, in similar circumstances, referred to and followed Bhajan Lal and held: (Ganesh Chandra Jew case SCC pp. 51-52, para 20) “20. … The factual scenario as indicated above goes to show that on 28-2-1991 the respondent was produced before the Magistrate. He was specifically asked as to whether there was any ill-treatment. Learned SDJM specifically records that no complaint of any ill-treatment was made. This itself strikes at the credibility of the complaint. … Though there are several other aspects highlighted in the version indicated in the complaint and the materials on record are there, we do not think it necessary to go into them because of the inherent improbabilities of the complainant's case and the patent mala fides involved.” 51. In K.K. Patel v. State of Gujarat this Court held: (SCC p. 201, paras 11-12) “11. That apart, the view of the learned Single Judge of the High Court that no revision was maintainable on account of the bar contained in Section 397(2) of the Code, is clearly erroneous. It is now well-nigh settled that in deciding whether an order challenged is interlocutory or not as for Section 397(2) of the Code, the sole test is not whether such order was passed during the interim stage (vide Amar Nath v. State of Haryana, Madhu Limaye v. State of Maharashtra , V.C. Shukla v. State and Rajendra Kumar Sitaram Pande v. Uttam. The feasible test is whether by upholding the objections raised by a party, it would result in culminating the proceedings, if so any order passed on such objections would not be merely interlocutory in nature as envisaged in Section 397(2) of the Code. In the present case, if the objection raised by the appellants were upheld by the Court the entire prosecution proceedings would have been terminated. Hence, as per the said standard, the order was revisable. 12. Therefore, the High Court went wrong in holding that the order impugned before the Sessions Court was not revisable in view of the bar contained in Section 397(2) of the 52. In D.T. Virupakshappa v. C. Subash, cited by Mr Poovayya, the question raised by the appellant before this Court was, whether the learned Magistrate could not have taken cognizance of the alleged offence which was of police excess in connection with the investigation of the criminal case, without sanction from the State Government under Section 197 of the Code of Criminal Procedure and whether the High Court should have quashed the proceedings on that ground alone. 53. This Court in Virupakshappa case held that the whole allegation of police excess in connection with the investigation of the criminal case, was reasonably connected with the performance of the official duty of the appellant. The learned Magistrate could not have, therefore, taken cognizance of the case, without previous sanction of the State Government. This Court found that the High Court had missed this crucial point in passing the impugned order, dismissing the application of the policeman concerned under Section 482 of the Code of Criminal Procedure. 54. In Ganesh Chandra Jew, the Magistrate had, as in this case, specially recorded that there was no complaint of any ill-treatment. This Court was of the view that continuance of the proceeding would amount to the abuse of the process of law. Accordingly, this Court set aside the judgment of the High Court whereby the High Court refused to exercise its power under Section 482 of the Criminal Procedure Code to quash an order of sub-Divisional Judicial Magistrate, in a complaint against police officials, without sanction under Section 197 of the Criminal Procedure Code. 55. Devinder Singh v. State of Punjab cited by Mr Luthra is clearly distinguishable as that was a case of killing by the police in fake encounter. Satyavir Singh Rathi v. State also pertains to a fake encounter, where the deceased was mistakenly identified as a hardcore criminal and shot down without provocation. The version of the police that the police had been attacked first and had retaliated, was found to be false. In the light of these facts, that this Court held that it could not, by any stretch of imagination, be claimed by anybody that a case of murder could be within the expression “colour of duty”. This Court dismissed the appeals of the policemen concerned against conviction, inter alia, under Section 302 of the Penal Code, which had duly been confirmed by the High Court. The judgment is clearly 56. The judgment of this Court in State of A.P. v. N. Venugopal is distinguishable in that the policemen concerned, being the Sub-Inspector, Head Constable and a Constable attached to a police station had without warrant, illegally detained the complainant for interrogation under Section 161 of the Criminal Procedure Code in connection with a private complaint of house break and theft, assaulted him along with the private complainant to extract statements and left him in an injured condition. 57. In the context of the aforesaid, this Court held that an act is not “under” a provision of law merely because the point of time at which it is done coincides with the point of time when some act in the exercise of the powers granted by the provision or in performance of the duty imposed by it. To be able to say that an act is done “under” a provision of law, one must discover the existence of a reasonable relationship between the provisions and the act. In the absence of such a relation, the act cannot be said to be done under the particular provision of law. It cannot be said that beating a person suspected of a crime or confining him or sending him away in an injured condition, at a time when the police were engaged in investigation, were acts done or intended to be done under the provisions of the Madras District Police Act or the Criminal Procedure Code or any other law conferring powers on the police. It could not be said that the provisions of Section 161 of the Criminal Procedure Code authorised the police officer examining a person to beat him or to confine him for the purpose of inducing him to make a particular statement. 58. In Bhanuprasad Hariprasad Dave v. State of Gujarat the Head Constable concerned was accused of preparing a false report with the dishonest intention of saving a person from whom ganja had been seized, after obtaining illegal gratification. The Court held that demand and/or acceptance of illegal gratification could not be said to be an act done under colour of duty. Significantly, the policemen concerned had been tried and convicted and their conviction was affirmed by the High Court. The Head Constable concerned was seeking bail in this Court. 59. The judgment in State of Maharashtra v. Atma Ram, was rendered in an appeal from a judgment and order of the High Court, whereby the High Court had reversed the conviction of the policemen concerned under Sections 330, 342, 343 and 348 of the Penal Code, holding the prosecution to be barred under Section 161(1) of the Bombay Police Act. Allowing the appeal of the State, this Court held that Section 64(b) which confers duty on every police officer to obtain intelligence concerning the commission of cognizable offences or designs to commit such offences and to take such other steps to bring offenders to justice or to prevent the commission of cognizable and non-cognizable offences, did not authorise any police officer to beat persons in the course of examination for the purpose of inducing them to make any particular statement or to detain such persons. The acts complained of were factually found not to have been done under colour of any duty or authority. The order of the High Court acquitting the policemen concerned was thus, set aside. 60. In Bakhshish Singh Brar v. Gurmej Kaur, the question raised before this Court was, whether while carrying out investigation in performance of duty as a policeman, it was necessary for the policeman concerned to conduct investigation in such a manner as would result in injury and death. This Court held that trial of a police officer, accused of accused of causing grievous injury and death in conducting raid and search, need not be stayed for want of sanction for prosecution of the police officer, at the preliminary stage, observing that criminal trial should not be stayed at the preliminary stage in every case, as it might cause damage to the evidence. The Court observed that if necessary, the question of sanction might be agitated at a later stage. 61. In Om Prakash v. State of Jharkhand this Court held: (SCC pp. 90-91 & 95, paras 34 & 42-43) “34. In Matajog Dobey the Constitution Bench of this Court was considering what is the scope and meaning of a somewhat similar expression ‘any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty’ occurring in Section 197 of the Criminal Procedure Code (5 of 1898). The Constitution Bench observed that no question of sanction can arise under Section 197 unless the act complained of is an offence; the only point to determine is whether it was committed in the discharge of official duty. On the question as to which act falls within the ambit of abovequoted expression, the Constitution Bench concluded that there must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim that he did it in the course of performance of his duty. While dealing with the question whether the need for sanction has to be considered as soon as the complaint is lodged and on the allegations contained therein, the Constitution Bench referred to Hori Ram Singh and observed that at first sight, it seems as though there is some support for this view in Hori Ram Singh because Sulaiman, J. has observed in the said judgment that as the prohibition is against the institution itself, its applicability must be judged in the first instance at the earliest stage of institution and Varadachariar, J. has also stated that : (Matajog Dobey case AIR p. 49, para 20) ‘20. … the question must be determined with reference to the nature of the allegations made against the public servant in the criminal proceedings.’ The legal position is thus settled by the Constitution Bench in the above paragraph. Whether sanction is necessary or not may have to be determined from stage to stage. If, at the outset, the defence establishes that the act purported to be done is in execution of official duty, the complaint will have to be dismissed on that ground. 42. It is not the duty of the police officers to kill the accused merely because he is a dreaded criminal. Undoubtedly, the police have to arrest the accused and put them up for trial. This Court has repeatedly admonished trigger-happy police personnel, who liquidate criminals and project the incident as an encounter. Such killings must be deprecated. They are not recognised as legal by our criminal justice administration system. They amount to State- sponsored terrorism. But, one cannot be oblivious of the fact that there are cases where the police, who are performing their duty, are attacked and killed. There is a rise in such incidents and judicial notice must be taken of this fact. In such circumstances, while the police have to do their legal duty of arresting the criminals, they have also to protect themselves. The requirement of sanction to prosecute affords protection to the policemen, who are sometimes required to take drastic action against criminals to protect life and property of the people and to protect themselves against attack. Unless unimpeachable evidence is on record to establish that their action is indefensible, mala fide and vindictive, they cannot be subjected to prosecution. Sanction must be a precondition to their prosecution. It affords necessary protection to such police personnel. The plea regarding sanction can be raised at the 43. In our considered opinion, in view of the facts which we have discussed hereinabove, no inference can be drawn in this case that the police action is indefensible or vindictive or that the police were not acting in discharge of their official duty. In Zandu Pharmaceutical Works Ltd. this Court has held that the power under Section 482 of the Code should be used sparingly and with circumspection to prevent abuse of process of court but not to stifle legitimate prosecution. There can be no two opinions on this, but, if it appears to the trained judicial mind that continuation of a prosecution would lead to abuse of process of court, the power under Section 482 of the Code must be exercised and proceedings must be quashed. Indeed, the instant case is one of such cases where the proceedings initiated against the police personnel need to be quashed.” 62. In Pukhraj v. State of Rajasthan the accused Postmaster General, Rajasthan had allegedly kicked and abused a union leader who had come to him when he was on tour, to submit a representation. This Court held that Section 197 of the Code of Criminal Procedure, which is intended to prevent a public servant from being harassed does not apply to acts done by a public servant in his private capacity. This Court, however, left it open to the accused public servant to place materials on record during the trial to show that the acts complained of were so interrelated with his official duty as to attract the protection of Section 197 of the Criminal Procedure 63. In Rizwan Ahmed Javed Shaikh v. Jammal Patel, this Court held that where the gravamen of the charge was failure on the part of the accused policemen to produce the complainants, who were in their custody, before the Judicial Magistrate, the offence alleged was in their official capacity, though it might have ceased to be legal at a given point of time, and the accused police officers would be entitled to the benefit of Section 197(2) of the Criminal Procedure Code. 64. The judgment in B. Saha v. M.S. Kochar was rendered in the context of allegations against the Customs Authorities of misappropriation or conversion of goods. This Court held that while the seizure of goods by the custom officers concerned was an act committed in discharge of official duty, the subsequent acts of misappropriation or conversion of the goods could not be said to be viewed as under the colour of official duty. Accordingly, this Court held that sanction for prosecution was not necessary. 65. The law relating to the requirement of sanction to entertain and/or take cognizance of an offence, allegedly committed by a police officer under Section 197 of the Code of Criminal Procedure read with Section 170 of the Karnataka Police Act, is well settled by this Court, inter alia by its decisions referred to above. 66. Sanction of the Government, to prosecute a police officer, for any act related to the discharge of an official duty, is imperative to protect the police officer from facing harassive, retaliatory, revengeful and frivolous proceedings. The requirement of sanction from the Government, to prosecute would give an upright police officer the confidence to discharge his official duties efficiently, without fear of vindictive retaliation by initiation of criminal action, from which he would be protected under Section 197 of the Code of Criminal Procedure, read with Section 170 of the Karnataka Police Act. At the same time, if the policeman has committed a wrong, which constitutes a criminal offence and renders him liable for prosecution, he can be prosecuted with sanction from the appropriate 67. Every offence committed by a police officer does not attract Section 197 of the Code of Criminal Procedure read with Section 170 of the Karnataka Police Act. The protection given under Section 197 of the Criminal Procedure Code read with Section 170 of the Karnataka Police Act has its limitations. The protection is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and official duty is not merely a cloak for the objectionable act. An offence committed entirely outside the scope of the duty of the police officer, would certainly not require sanction. To cite an example, a policeman assaulting a domestic help or indulging in domestic violence would certainly not be entitled to protection. However, if an act is connected to the discharge of official duty of investigation of a recorded criminal case, the act is certainly under colour of duty, no matter how illegal the act may be. 68. If in doing an official duty a policeman has acted in excess of duty, but there is a reasonable connection between the act and the performance of the official duty, the fact that the act alleged is in excess of duty will not be ground enough to deprive the policeman of the protection of the government sanction for initiation of criminal action against him. 69. The language and tenor of Section 197 of the Code of Criminal Procedure and Section 170 of the Karnataka Police Act makes it absolutely clear that sanction is required not only for acts done in discharge of official duty, it is also required for an act purported to be done in discharge of official duty and/or act done under colour of or in excess of such duty or 70. To decide whether sanction is necessary, the test is whether the act is totally unconnected with official duty or whether there is a reasonable connection with the official duty. In the case of an act of a policeman or any other public servant unconnected with the official duty there can be no question of sanction. However, if the act alleged against a policeman is reasonably connected with discharge of his official duty, it does not matter if the policeman has exceeded the scope of his powers and/or acted beyond the four corners of law.” The Apex Court, in the afore-quoted judgment, considers entire spectrum of law as emanated from 1956 till the date of delivery of the judgment, as to why it is imperative that protection under Section 197 of the Cr.P.C. should be strictly construed to protect public servants from fearless discharge of their official duties. The said judgment would cover the issue in the case at hand on all its fours insofar as sanction to prosecute a public servant, in the case at hand - a police officer. 14. Insofar as non-obtaining of sanction from the hands of the Competent Authority prior to the Court taking cognizance, it is an admitted fact that in the case at hand, no sanction is sought or accorded by the Competent Authority. Therefore, any proceeding of taking cognizance and setting of criminal law in motion thereon without sanction will lose its legs to stand and would, therefore, suffer from want of tenability. 15. The contention of the learned counsel appearing for the respondent that the petitioner had left the post by the time the complaint was registered and, therefore, sanction is noted, only to be repelled, as it is fundamentally flawed. Leaving the post cannot be equated with leaving the service. Change of post will not mean that the petitioner has ceased to be a public servant. The petitioner continues to be a public servant in any post in the cadre and the act performed by a public servant during any time in service if sought to be given a colour of crime by wanting to set the criminal law in motion, in some cases even after retirement, sanction under Section 197 of the Cr.P.C. is imperative. This is the purport of the law declared, as extracted 16. The judgments relied on by the learned senior counsel representing the respondent would bring no assistance to him as they are all judgments rendered in the peculiar facts of those cases. It is no law, declared by the Apex Court that sanction would not be required if the public servant has ceased to hold that particular post. As long as the public servant remains a public servant and his/her actions are sought to be alleged of crime, sanction would become necessary. The judgment in the case of PARKASH SINGH BADAL (supra) was concerning requirement of sanction after PARKASH SINGH BADAL had ceased to be the Chief Minister of Punjab. The act committed while he was the Chief Minister was sought to be alleged after cessation of office. The cadre officers would cease to become public servants only on their cessation of service by any mode. They cannot be compared to politicians. Same goes with every judgment that is relied on by the learned senior counsel appearing for the respondent. 17. The other judgments that are relied on are concerning the fact whether sanction under Section 197 of the Cr.P.C. would be required for acts performed by such public servant which were not in the discharge of their official duty. The reasonable connection between the official duty and the alleged act committed by those public servants is what was considered by the Apex Court in the other case – URMILA DEVI (supra). Therefore, the judgments relied on in the case of D.DEVARAJA (supra) and that of other High Courts is what would become applicable to the case at hand and none of the armory from the arsenal of the learned senior counsel appearing for the respondent would support the case of the respondent, as the judgment in the case of D.DEVARAJA (supra) is overwhelming qua the facts of the case at hand. Therefore, I answer issue No.1 against the respondent holding that the learned Magistrate could not have taken cognizance of the aforesaid offences without an order of sanction for such prosecution from the hands of the Competent Authority. (ii) Whether the alleged communication/report dated 12-07-2017 amounts to defamation within the meaning of ingredients of Section 499 of the IPC against the The second issue is as to whether the report submitted would be defamatory also merits consideration. In my view, the report was an official communication from the petitioner to the head of the department. The factual happenings in the prison were highlighted and what was being spoken about was only a caution. A pure official communication without it being referred to any other department or a quarter, cannot become the ingredient of Section 499 of the IPC. Section 499 of the IPC “499. Defamation.—Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person. Explanation 1.—It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives. Explanation 2.—It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. Explanation 3.—An imputation in the form of an alternative or expressed ironically, may amount to defamation. Explanation 4.—No imputation is said to harm a person's reputation, unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a lothsome state, or in a state generally considered as disgraceful. A perusal at the provision of law that is invoked to bring in allegations under Section 499 of the IPC clearly mandates that one who makes or publishes any imputation concerning any person with an intention to harm is said to defame the said person, except the issues covered under the exceptions. Therefore, making or publishing is the nucleus of the section. The words makes or publishes if considered qua the impugned communication, it becomes clear that even if it is made, it is not published to any quarter by the petitioner. Making of the communication is also restricted to the reporting of outcome of the inspection and between two people. It is, on its perusal, a pure official communication between two people as to what was happening in the prison during the inspection that was conducted. In these circumstances, reference being made to the judgment of the Apex Court in the case of RAJESH RANGARAJAN V. CROP CARE FEDERATION OF INDIA AND ANOTHER4, becomes apposite. The Apex Court considering an identical circumstance of official communication has held as follows: “2. Mr Raj Panjwani, learned Senior Counsel appearing for the appellant has drawn our attention to Annexure P-1, which is the Report of the Fact-Finding Committee which deals with farmers' deaths due to exposure to pesticides in Warangal District of Andhra Pradesh. We have carefully perused the Report. The relevant page of the Report, which is at p. 40 of the paper book, clearly indicates that the Fact-Finding Committee was not aimed at doing health study or in- depth scientific investigation, but to do an indicative study which would lead to a larger health study. The general tenor of the Report indicates that the Report was meant to focus the harmful effects of exposure to pesticides. It is quite evident from the Report that it was not meant to harm, hurt or defame any individual or the manufacturing company. Mr Panjwani, learned Senior Counsel appearing for the appellant also fairly submitted that the Report was not intended to harm or defame any individual or manufacturers of pesticides. 3. In our considered opinion, the complaint filed under Sections 120-B, 34, 500, 501 and 502 of the Penal Code, 1860 lacks basic ingredients. According to our view, no useful purpose would be served in permitting the trial court to proceed with the complaint which lacks the basic ingredients of the aforementioned sections. Consequently, we quash the complaint.” (Emphasis supplied) The Apex Court was considering an official report by the accused therein and has held that it is an official communication and no offence under Section 500 or 501 of the IPC can be made out of such official communication. 19. In the light of the preceding analysis and the admitted fact that no sanction is sought or granted by the Competent Authority to prosecute the petitioner for offences punishable under Sections 499 and 500 of the IPC and the fact that the communication being purely official between two people, the contents of it, in the considered view of this Court, would not attract the ingredients of Section 499 of the IPC, as it cannot be held to be defamatory. Therefore, I hold issue No.2 in favour of the petitioner for the reasons indicated hereinabove. 20. It is trite that criminal prosecution is a serious matter; it affects the liberty of a person, therefore, in cases where this Court finds that permitting further proceedings would become an abuse of the process of the law or would result in miscarriage of justice, exercise of jurisdiction under Section 482 of the Cr.P.C. to obliterate such proceedings would become imperative. Wherefore, further proceedings against the petitioner, cannot be permitted to be continued. 21. For the aforesaid reasons, I pass the following: (i) The Criminal Petition is allowed. (ii) The impugned proceedings in C.C.No.2610 of 2020 pending before the IX Additional Chief Metropolitan Magistrate, Bangalore stands quashed.
The Karnataka High Court has decided that a formal, official message shared only between two people, and not sent to other departments or the public, cannot be considered defamation under Section 499 of the Indian Penal Code (IPC). Justice M Nagaprasanna, a single judge, agreed with a request made by D. Roopa. She currently works as the Managing Director of the Karnataka Handicraft Development Corporation. The judge stopped the court case against her in the lower magistrate court. This case was based on a complaint by former police officer HN Sathyanarayana Rao, who accused her of crimes under sections 357, 499, and 500 of the Indian Penal Code (IPC). The judge stated that it was clear no official permission (called 'sanction') had been asked for or given by the proper authority to charge D. Roopa with crimes under Sections 499 and 500 of the IPC. Also, because the message was purely official and only between two people, the court believed its content did not fit the definition of defamation under Section 499 of the IPC. Case details: In 2017, D. Roopa (the petitioner) worked as the Deputy Inspector General (DIG) of Prisons for the Karnataka government. She and the other person involved (the respondent, HN Sathyanarayana Rao) were in the same department, and she was a lower-ranked officer. The accusation was that on July 12, 2017, D. Roopa defamed the respondent. She supposedly did this by writing things that were published in the media, which led to charges under Sections 357, 499, and 500 of the IPC. The respondent argued that D. Roopa's words had damaged his reputation. He claimed she did this by making public a report she had sent to the head of their department. The respondent filed a complaint under a specific section (200) of the Code of Criminal Procedure (Cr.P.C.). The Magistrate court reviewed the complaint and decided to formally open criminal cases against D. Roopa. The court also sent her an official order to appear, called a summons, as the accused person. Petitioners submissions: D. Roopa's lawyer, Madhukar Deshpande, argued that because the alleged actions happened while she was performing her official duties, special permission (sanction) under Section 197 of the Code of Criminal Procedure (Cr.P.C.) was absolutely required. He noted that no such permission was given to charge her, which should make the entire legal process invalid. Her lawyer also stated that the key elements needed to prove defamation under Section 499 of the IPC were missing in this case. He explained that D. Roopa had only sent the message to the Head of the Department as part of her official job. There was no proof that she had given it to TV or print news. He argued that simply sharing true official facts or events cannot be considered defaming an officer, especially the respondent. Respondents submissions: The respondent's lawyer, Senior Advocate Puttige R. Ramesh, argued that D. Roopa was in a different job position when the complaint was filed. Because of this, he claimed that no special permission (sanction) was needed to prosecute her. He also argued that the incident leading to the supposed defamation wasn't related to D. Roopa's public duties. Therefore, she couldn't claim protection under Section 199(2) of the Code of Criminal Procedure (Cr.P.C.). He added that D. Roopa sent the message not just to her department head but also to print and TV news. He said it would be up to D. Roopa to prove her innocence during a trial. Court findings: The court agreed that there was no argument that D. Roopa sent the report to the respondent as part of her official duties. The report itself described inspections she had carried out in her official role. So, the court found that all her actions were directly connected to her job and official position. The court stated that if a public servant's official actions are claimed to be a crime, and a criminal case is started based on these claims, then official permission (sanction) under Section 197 is absolutely necessary to begin that criminal case. The court further explained that it had recognized the accusations against D. Roopa for crimes under Sections 357, 499, and 500 of the IPC. These are indeed crimes under the law. However, the court should not have recognized these crimes without the proper authority first giving an official permission (sanction). No further legal steps should have been taken without this sanction. The judge also disagreed with the respondent's argument that sanction was not needed because D. Roopa had changed her job. The court stated, "Changing a job position is not the same as leaving government service completely." It explained that changing jobs does not stop someone from being a public servant. D. Roopa remained a public servant in whatever role she held. If an action done by a public servant at any time during their service – even after retirement in some cases – is claimed to be a crime, then official permission (sanction) under Section 197 of the Code of Criminal Procedure (Cr.P.C.) is absolutely necessary to start a criminal case. Furthermore, the court pointed out that Section 499 of the IPC clearly states that someone who creates or shares a statement about another person, intending to harm their reputation, is considered to have defamed them. This rule applies unless the statement falls under specific exceptions. The court emphasized that "making or publishing" a statement is the central part of this law. Looking at the message D. Roopa sent, it was clear that even if she "made" it, she did not "publish" it to anyone else. The creation of the message was limited to reporting inspection results between two people. The court found that it was simply a formal, official message shared between two individuals about what was found during a prison inspection. So, the court concluded that because the message was purely official and only shared between two people, its content did not meet the definition of defamation under Section 499 of the IPC. Therefore, it could not be considered defamatory. Because of these reasons, the court agreed with D. Roopa's request and stopped all further legal action against her.
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Mr. P.P. Kakade, GP a/w Mr. M.M. Pabale, AGP for Respondent Nos.1 to 3- 1 The present PIL is filed with a prayer that Respondent Nos.2 and 3 should grant financial aid to all victims of snake and scorpion bites who are residing in the State of Maharashtra without discrimination. 2 The learned Advocate for the Petitioner submits that the Government of Maharashtra is giving financial aid to the victims of snake/scorpion bites under Gopinath Mundhe Insurance Scheme only to farmers and their one blood relative whose name appears in the 7/12 extract. The learned Counsel submits that the Petitioner is a registered voluntary organization. The Petitioner is authorized by the organization namely, Nisarga Vidnyan Sanstha, Dombivli to file the present Petition. The Petitioner is the Secretary k 2/4 41 pil 107.22 as.doc of the said Organization. The members of the said organization have hobby to catch snakes and scorpion who enter human habitat. The learned Counsel submits that there are many victims of snake bites who may not be necessarily farmers. On one hand the State of Maharashtra is providing financial aid to the farmers and their family members who succumb on account of snake bite, at the same time the persons like the Petitioner who catch the snakes/scorpion and get infected because of the same are not provided with any financial aid. The same is discriminatory and violative of Articles 14 and 21 of the Constitution of India. 3 The learned Counsel submits that such aid is provided by the State of Madhya Pradesh under its policy of the year 2018. There is no reason for the State of Maharashtra not to extend the benefit given to the farmers on account of snake bite to the other citizens who also risk their life on account of snake bite. The State of Maharashtra cannot adopt deal standards. 4 The learned AGP submits that the financial aid is given for loss of human life or injury due to wild animals as per Government Resolution dated 23rd August 2022. As per the said Government Resolution human deaths caused due to bite of snake/scorpion are not listed for payment of financial assistance. The State Government through Animal Husbandry, Dairy Development and Fisheries Department under Government k 3/4 41 pil 107.22 as.doc Resolution dated 19th September 2019 has taken a policy decision to compensate the farmers and their family members against the risk of snake bite through insurance coverage of Rs.2,00,000/- under the Gopinath Munde Farmers Insurance Scheme. The said benefit is extended only to land holding farmer and one member of the family. 5 We have considered the submissions. To grant financial aid is a matter of policy decision to be taken by the State Government under Article 162 of the Constitution of India. 6 The policy framed for granting financial aid to the farmer and family members of the farmer who succumb on account of the snake bite would form a different class. The farmers are the ones who are in field. The separate provision is made for them. The purpose of taking within its fold the farmers who succumb to snake bite is that the farmers were already covered by the earlier Government Resolutions by which compensation is payable on account of the death or injury caused by wild animals. Considering the welfare of the farmers, the decision has been taken to extend the benefit of compensation even for snake bite. 7 This Court would be slow to give directions with regard to the fiscal policies of the State Government. Whether a particular scheme is to be applied to a particular group of persons is a policy decision that is to be k 4/4 41 pil 107.22 as.doc under taken by the Government. The State Government under its wisdom has considered farmers to form a different class than the other citizens and the benevolent scheme has been floated for the farmers. 8 It is for the State Government to consider the grievances put-forth by the Petitioner with regard to providing the compensation to the other persons who succumb due to snake bite. This Court would not direct the Government to make a policy in a particular manner as that would amount to encroaching upon the jurisdiction of the State Government conferred the Article 162 of the Constitution of India. 9 With the aforesaid observations, the PIL is disposed of.
The Bombay High Court has refused to tell the state government to give financial help to everyone in the state bitten by snakes and scorpions. The court noted that deciding who gets money is a policy decision, and giving such an order would mean the court was overstepping the state government's authority. Two judges, acting Chief Justice S. V. Gangapurwala and Justice Sandeep V. Marne, closed a public interest lawsuit and stated: "The state government needs to think about the problems brought up by the person who filed the lawsuit, especially about giving money to other people who die from snake bites. This Court will not tell the government how to make its rules. That would mean taking over the government's power, which is given to it by Article 162 of the Indian Constitution." The lawsuit had asked that the state government be told to give financial help to all snake and scorpion bite victims living in Maharashtra, treating everyone equally. Advocate Anurag Kulkarni, representing the person who filed the lawsuit, argued that the government currently only gives financial aid to farmers and one of their close family members who are bitten by snakes or scorpions, through a plan called the Gopinath Mundhe Insurance Scheme. He told the court that many people bitten by snakes are not farmers. The lawyer also argued that people like the person who filed the lawsuit, who catch snakes and scorpions and get bitten, don't receive any financial help. He said this goes against Articles 14 and 21 of the Constitution, which are about equal rights and protecting life. Kulkarni further said that there is no good reason for the state of Maharashtra to only help farmers and not everyone else. The government's lawyer, P. P. Kakade, replied that the Animal Husbandry, Dairy Development and Fisheries Department had made a rule to give money to farmers and their family members for the risk of snake bite. The court stated that deciding to give financial help is a policy choice that the state government must make, as allowed by Article 162 of the Constitution. The court pointed out that farmers and their families are seen as a separate group. Special rules are made for them because they work in the fields. The court added that the state, in its judgment, decided that farmers are a different group and started the assistance program for them. The court also mentioned that farmers already get money if they are hurt or die because of wild animals. The court noted that the government decided to also include snake bites in this benefit. So, the court would not give an order about the state's spending and money rules. "This Court would not quickly give orders about how the state government manages its money. The court said that deciding if a certain plan should apply to a specific group of people is a policy choice that the government must make."
Mr. P.P. Kakade, GP a/w Mr. M.M. Pabale, AGP for Respondent Nos.1 to 3- 1 The present PIL is filed with a prayer that Respondent Nos.2 and 3 should grant financial aid to all victims of snake and scorpion bites who are residing in the State of Maharashtra without discrimination. 2 The learned Advocate for the Petitioner submits that the Government of Maharashtra is giving financial aid to the victims of snake/scorpion bites under Gopinath Mundhe Insurance Scheme only to farmers and their one blood relative whose name appears in the 7/12 extract. The learned Counsel submits that the Petitioner is a registered voluntary organization. The Petitioner is authorized by the organization namely, Nisarga Vidnyan Sanstha, Dombivli to file the present Petition. The Petitioner is the Secretary k 2/4 41 pil 107.22 as.doc of the said Organization. The members of the said organization have hobby to catch snakes and scorpion who enter human habitat. The learned Counsel submits that there are many victims of snake bites who may not be necessarily farmers. On one hand the State of Maharashtra is providing financial aid to the farmers and their family members who succumb on account of snake bite, at the same time the persons like the Petitioner who catch the snakes/scorpion and get infected because of the same are not provided with any financial aid. The same is discriminatory and violative of Articles 14 and 21 of the Constitution of India. 3 The learned Counsel submits that such aid is provided by the State of Madhya Pradesh under its policy of the year 2018. There is no reason for the State of Maharashtra not to extend the benefit given to the farmers on account of snake bite to the other citizens who also risk their life on account of snake bite. The State of Maharashtra cannot adopt deal standards. 4 The learned AGP submits that the financial aid is given for loss of human life or injury due to wild animals as per Government Resolution dated 23rd August 2022. As per the said Government Resolution human deaths caused due to bite of snake/scorpion are not listed for payment of financial assistance. The State Government through Animal Husbandry, Dairy Development and Fisheries Department under Government k 3/4 41 pil 107.22 as.doc Resolution dated 19th September 2019 has taken a policy decision to compensate the farmers and their family members against the risk of snake bite through insurance coverage of Rs.2,00,000/- under the Gopinath Munde Farmers Insurance Scheme. The said benefit is extended only to land holding farmer and one member of the family. 5 We have considered the submissions. To grant financial aid is a matter of policy decision to be taken by the State Government under Article 162 of the Constitution of India. 6 The policy framed for granting financial aid to the farmer and family members of the farmer who succumb on account of the snake bite would form a different class. The farmers are the ones who are in field. The separate provision is made for them. The purpose of taking within its fold the farmers who succumb to snake bite is that the farmers were already covered by the earlier Government Resolutions by which compensation is payable on account of the death or injury caused by wild animals. Considering the welfare of the farmers, the decision has been taken to extend the benefit of compensation even for snake bite. 7 This Court would be slow to give directions with regard to the fiscal policies of the State Government. Whether a particular scheme is to be applied to a particular group of persons is a policy decision that is to be k 4/4 41 pil 107.22 as.doc under taken by the Government. The State Government under its wisdom has considered farmers to form a different class than the other citizens and the benevolent scheme has been floated for the farmers. 8 It is for the State Government to consider the grievances put-forth by the Petitioner with regard to providing the compensation to the other persons who succumb due to snake bite. This Court would not direct the Government to make a policy in a particular manner as that would amount to encroaching upon the jurisdiction of the State Government conferred the Article 162 of the Constitution of India. 9 With the aforesaid observations, the PIL is disposed of.
The Bombay High Court has refused to tell the state government to give financial help to everyone in the state bitten by snakes and scorpions. The court noted that deciding who gets money is a policy decision, and giving such an order would mean the court was overstepping the state government's authority. Two judges, acting Chief Justice S. V. Gangapurwala and Justice Sandeep V. Marne, closed a public interest lawsuit and stated: "The state government needs to think about the problems brought up by the person who filed the lawsuit, especially about giving money to other people who die from snake bites. This Court will not tell the government how to make its rules. That would mean taking over the government's power, which is given to it by Article 162 of the Indian Constitution." The lawsuit had asked that the state government be told to give financial help to all snake and scorpion bite victims living in Maharashtra, treating everyone equally. Advocate Anurag Kulkarni, representing the person who filed the lawsuit, argued that the government currently only gives financial aid to farmers and one of their close family members who are bitten by snakes or scorpions, through a plan called the Gopinath Mundhe Insurance Scheme. He told the court that many people bitten by snakes are not farmers. The lawyer also argued that people like the person who filed the lawsuit, who catch snakes and scorpions and get bitten, don't receive any financial help. He said this goes against Articles 14 and 21 of the Constitution, which are about equal rights and protecting life. Kulkarni further said that there is no good reason for the state of Maharashtra to only help farmers and not everyone else. The government's lawyer, P. P. Kakade, replied that the Animal Husbandry, Dairy Development and Fisheries Department had made a rule to give money to farmers and their family members for the risk of snake bite. The court stated that deciding to give financial help is a policy choice that the state government must make, as allowed by Article 162 of the Constitution. The court pointed out that farmers and their families are seen as a separate group. Special rules are made for them because they work in the fields. The court added that the state, in its judgment, decided that farmers are a different group and started the assistance program for them. The court also mentioned that farmers already get money if they are hurt or die because of wild animals. The court noted that the government decided to also include snake bites in this benefit. So, the court would not give an order about the state's spending and money rules. "This Court would not quickly give orders about how the state government manages its money. The court said that deciding if a certain plan should apply to a specific group of people is a policy choice that the government must make."
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CM APPL. 36737/2019 (Delay of 44 days in filing appeal) 1. By this application, the appellant seeks condonation of 44 days’ delay in filing the appeal. 2. For the reasons stated in the application, delay of 44 days in filing the appeal is condoned. 1. The appellants, who are the widowed daughter-in-law and grand-daughter of the respondents, have filed the petition under Section 19 of the Family Court Act, 1984 against the order dated 3 rd May, 2019 deferring their claim for interim maintenance in a petition under Section 19 of the Hindu Adoption and Maintenance Act, 1956 (hereinafter referred to as The Act, 1956). 2. The facts in brief are that appellant no.1 Smt. Laxmi got married to Sh. Prakash son of the respondents on 3 rd December, 2011 according to Hindu Customs and Rites and one daughter appellant No.2 was born from their wed lock on 1st October, 2012. Unfortunately, Sh. Prakash expired on 14th December, 2013 and since the next day, appellant No.1 along with her daughter shifted to her parental home. According to the respondents, she neither returned nor did she remain in contact with the respondents, but filed a petition for maintenance after four years i.e on 23rd February, 2018. 3. The appellant in her application for interim maintenance had asserted that she was not well educated and had no source of income to maintain herself or the daughter. She is totally dependent upon her old age ailing parents for her day to day needs. The respondent No.1/ father-in-law is an educated person employed in MTNL department and is duty bound to take care of the daughter-in-law and the grand-daughter. However, the respondents have intentionally and deliberately neglected them by not paying even a penny towards their maintenance. It was claimed that not only is respondent No.1 getting his regular salary but is also earning about ₹20,000/- per month from rent and his total monthly earnings are about ₹55000/- to ₹65000/-. Accordingly, she claimed interim maintenance in the sum of ₹30,000/- per month till the disposal of the main petition. 4. The respondents on the other hand, had asserted that the appellants are not entitled to any maintenance under Section 19 of the Act since there was no estate left behind by the deceased. The respondent No.1 neither has any coparcenary property nor any income there from and the petitioners are not entitled to maintenance under the Act. It was claimed that as per the knowledge of the respondents, appellant No.1 was doing a private job in a factory in Gandhi Nagar and earning about ₹9,000/- to ₹10,000/- per month. She also has a share in her ancestral property in a village. 5. Ld. Principal Judge, Family Court in the impugned order, observed that the appellant had failed to disclose about any estate left behind by her husband with the respondents from which the appellants could claim maintenance. The application was accordingly dismissed. Aggrieved, the present appeal has been filed. 6. The main ground of challenge is that the widowed daughter-in-law and grand-daughter are entitled to claim maintenance from the father-in-law even if the property is self acquired by the parents-in-law/ grand-parents. It is claimed that the facts have not been appreciated in the right perspective and the maintenance has been wrongly denied to the appellants. 7. Learned counsel on behalf of the appellants stated that the appellant No.1 has undergone surgery and is not capable of working and taking care of herself. She was being supported and maintained by her parents who have some rental income from some part of the residential house which has been given on rent. However, her father has expired and her mother is an illiterate woman who has no source of income. She also has younger sisters and a younger brother who are all being maintained by the mother from the income being generated solely from the rent. It was vehemently argued that being the daughter-in-law and the grand-daughter, the appellants are entitled to maintenance from the respondents. 8. During the course of arguments it was mentioned that respondent No.1 has expired about more than a year back. The respondent No.2, who is the mother-in-law, has a married daughter who is staying with her on account of her matrimonial discord. Sh. Prakash, the deceased son was a widower at the time of his marriage with petitioner No.1 and had a daughter from the first marriage who also is living with respondent No.2 and is being maintained by her. It was submitted that the respondents have some rental income from the part of their house which has been rented out, but the rental income is not sufficient for the respondents to meet the requirements of herself as well as of dependent members. It was further stated that Sh. Prakash was an e-rickshaw driver and had no estate whatsoever which was inherited by the respondents. There is no property of Sh. Prakash which devolved upon the respondents from which the appellants can claim a right to be maintained. 10. The petitioners have claimed maintenance under the Act 1956. Section 19 of the Act provides for maintenance to a widowed daughter-in- law. It reads as under: 19. Maintenance of widowed daughter-in-law.— (1) A Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained after the death of her husband by her father-in-law: Provided and to the extent that she is unable to maintain herself out of her own earnings or other property or, where she has no property of her own, is unable to obtain maintenance— (a) from the estate of her husband or her father or mother, or (b) from her son or daughter, if any, or his or her estate. (2) Any obligation under sub-section (1) shall not be enforceable if the father-in-law has not the means to do so from any coparcenary property in his possession out of which the daughter-in-law has not obtained any share, and any such obligation shall cease on the re- marriage of the daughter-in-law. 11. The daughter-in-law can claim maintenance from her father-in-law provided he has inherited some estate of her husband. The appellant has failed to disclose any estate of her husband having devolved upon the respondents. Not only this, the respondent No.1 father-in-law has already expired. Now only respondent No.2 mother-in-law survives and the appellants cannot as a matter of right, claim any maintenance from her. 12. Section 22 of the Act provides for maintenance of dependents of the deceased by the heirs of the deceased, but this is subject to the condition that they having inherited the estate from the deceased. 13. As already noted above, no estate has been inherited either by the mother or the sister of the deceased husband of the appellant No.1 from which any maintenance can be claimed by the appellants. There is no infirmity in the impugned order of the learned Family Judge. The appeal is hereby dismissed. 14. Order be uploaded on the website of this court.
The Delhi High Court said that a daughter-in-law can ask her father-in-law for financial support, but only if she has received some property or money from her late husband. Two judges, Justice Mukta Gupta and Justice Neena Bansal Krishna, rejected a case brought by a widowed daughter-in-law and her granddaughter. They had filed this case under Section 19 of the Family Court Act, 1984. They were trying to overturn an earlier court decision from May 3, 2019. This earlier decision had postponed their request for temporary financial support, which they had sought under Section 19 of the Hindu Adoption and Maintenance Act, 1956. The daughter-in-law (appellant no. 1) married the father-in-law's son on December 3, 2011. Their daughter (appellant no. 2) was born on October 1, 2012. Sadly, the husband died on December 14, 2013. The very next day, the wife and her daughter moved to her parents' home. The father-in-law and mother-in-law (the respondents) claimed that the daughter-in-law never came back or stayed in touch with them. Instead, she filed her request for financial support four years later, on February 23, 2018. The daughter-in-law, in her request for temporary financial support, said she didn't have much education and no way to earn money for herself or her daughter. She explained that she relied completely on her old and sick parents for daily living costs. She also mentioned that the father-in-law (respondent No. 1) was educated and worked for the MTNL department, and he had a duty to support them. But she claimed that the in-laws had purposely ignored them and refused to pay any money for their support. She claimed that the father-in-law not only received his regular salary but also earned about ₹20,000 each month from rent. His total monthly income was supposedly between ₹55,000 and ₹65,000. Because of this, she asked for temporary financial support of ₹30,000 per month until the main case was resolved. On the other hand, the in-laws argued that the daughter-in-law and granddaughter were not allowed to receive any support under Section 19 of the Act. They said this was because the husband had not left behind any property or money when he died. The Family Court, in its challenged decision, noted that the daughter-in-law had not shown any property or money left by her husband with the in-laws from which she or her daughter could ask for support. So, her request was turned down. The main reason for appealing to the High Court was that the widowed daughter-in-law and granddaughter believed they should get financial support from the father-in-law. This was true even if the property belonged solely to the in-laws or grandparents, and they had earned it themselves. They argued that the earlier court had not understood the situation correctly and had wrongly refused them support. The High Court stated, "The daughter-in-law has not shown that any of her husband's property or money was passed on to the in-laws. On top of that, the father-in-law (respondent No. 1) has already passed away. Now, only the mother-in-law (respondent No. 2) is alive, and the daughter-in-law and granddaughter cannot automatically demand support from her." The Court believed that Section 22 of the Act allowed the family members who inherited property from a deceased person to provide support to the deceased person's dependents. However, this only applied if those family members had actually received property or money from the deceased. The Court said, "As we've already pointed out, neither the mother-in-law nor the husband's sister inherited any property from the deceased husband of the daughter-in-law. Therefore, the daughter-in-law and granddaughter cannot claim support from them. The Family Judge's earlier decision, which was challenged, had no error." Because of this, the appeal was rejected.
CM APPL. 36737/2019 (Delay of 44 days in filing appeal) 1. By this application, the appellant seeks condonation of 44 days’ delay in filing the appeal. 2. For the reasons stated in the application, delay of 44 days in filing the appeal is condoned. 1. The appellants, who are the widowed daughter-in-law and grand-daughter of the respondents, have filed the petition under Section 19 of the Family Court Act, 1984 against the order dated 3 rd May, 2019 deferring their claim for interim maintenance in a petition under Section 19 of the Hindu Adoption and Maintenance Act, 1956 (hereinafter referred to as The Act, 1956). 2. The facts in brief are that appellant no.1 Smt. Laxmi got married to Sh. Prakash son of the respondents on 3 rd December, 2011 according to Hindu Customs and Rites and one daughter appellant No.2 was born from their wed lock on 1st October, 2012. Unfortunately, Sh. Prakash expired on 14th December, 2013 and since the next day, appellant No.1 along with her daughter shifted to her parental home. According to the respondents, she neither returned nor did she remain in contact with the respondents, but filed a petition for maintenance after four years i.e on 23rd February, 2018. 3. The appellant in her application for interim maintenance had asserted that she was not well educated and had no source of income to maintain herself or the daughter. She is totally dependent upon her old age ailing parents for her day to day needs. The respondent No.1/ father-in-law is an educated person employed in MTNL department and is duty bound to take care of the daughter-in-law and the grand-daughter. However, the respondents have intentionally and deliberately neglected them by not paying even a penny towards their maintenance. It was claimed that not only is respondent No.1 getting his regular salary but is also earning about ₹20,000/- per month from rent and his total monthly earnings are about ₹55000/- to ₹65000/-. Accordingly, she claimed interim maintenance in the sum of ₹30,000/- per month till the disposal of the main petition. 4. The respondents on the other hand, had asserted that the appellants are not entitled to any maintenance under Section 19 of the Act since there was no estate left behind by the deceased. The respondent No.1 neither has any coparcenary property nor any income there from and the petitioners are not entitled to maintenance under the Act. It was claimed that as per the knowledge of the respondents, appellant No.1 was doing a private job in a factory in Gandhi Nagar and earning about ₹9,000/- to ₹10,000/- per month. She also has a share in her ancestral property in a village. 5. Ld. Principal Judge, Family Court in the impugned order, observed that the appellant had failed to disclose about any estate left behind by her husband with the respondents from which the appellants could claim maintenance. The application was accordingly dismissed. Aggrieved, the present appeal has been filed. 6. The main ground of challenge is that the widowed daughter-in-law and grand-daughter are entitled to claim maintenance from the father-in-law even if the property is self acquired by the parents-in-law/ grand-parents. It is claimed that the facts have not been appreciated in the right perspective and the maintenance has been wrongly denied to the appellants. 7. Learned counsel on behalf of the appellants stated that the appellant No.1 has undergone surgery and is not capable of working and taking care of herself. She was being supported and maintained by her parents who have some rental income from some part of the residential house which has been given on rent. However, her father has expired and her mother is an illiterate woman who has no source of income. She also has younger sisters and a younger brother who are all being maintained by the mother from the income being generated solely from the rent. It was vehemently argued that being the daughter-in-law and the grand-daughter, the appellants are entitled to maintenance from the respondents. 8. During the course of arguments it was mentioned that respondent No.1 has expired about more than a year back. The respondent No.2, who is the mother-in-law, has a married daughter who is staying with her on account of her matrimonial discord. Sh. Prakash, the deceased son was a widower at the time of his marriage with petitioner No.1 and had a daughter from the first marriage who also is living with respondent No.2 and is being maintained by her. It was submitted that the respondents have some rental income from the part of their house which has been rented out, but the rental income is not sufficient for the respondents to meet the requirements of herself as well as of dependent members. It was further stated that Sh. Prakash was an e-rickshaw driver and had no estate whatsoever which was inherited by the respondents. There is no property of Sh. Prakash which devolved upon the respondents from which the appellants can claim a right to be maintained. 10. The petitioners have claimed maintenance under the Act 1956. Section 19 of the Act provides for maintenance to a widowed daughter-in- law. It reads as under: 19. Maintenance of widowed daughter-in-law.— (1) A Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained after the death of her husband by her father-in-law: Provided and to the extent that she is unable to maintain herself out of her own earnings or other property or, where she has no property of her own, is unable to obtain maintenance— (a) from the estate of her husband or her father or mother, or (b) from her son or daughter, if any, or his or her estate. (2) Any obligation under sub-section (1) shall not be enforceable if the father-in-law has not the means to do so from any coparcenary property in his possession out of which the daughter-in-law has not obtained any share, and any such obligation shall cease on the re- marriage of the daughter-in-law. 11. The daughter-in-law can claim maintenance from her father-in-law provided he has inherited some estate of her husband. The appellant has failed to disclose any estate of her husband having devolved upon the respondents. Not only this, the respondent No.1 father-in-law has already expired. Now only respondent No.2 mother-in-law survives and the appellants cannot as a matter of right, claim any maintenance from her. 12. Section 22 of the Act provides for maintenance of dependents of the deceased by the heirs of the deceased, but this is subject to the condition that they having inherited the estate from the deceased. 13. As already noted above, no estate has been inherited either by the mother or the sister of the deceased husband of the appellant No.1 from which any maintenance can be claimed by the appellants. There is no infirmity in the impugned order of the learned Family Judge. The appeal is hereby dismissed. 14. Order be uploaded on the website of this court.
The Delhi High Court said that a daughter-in-law can ask her father-in-law for financial support, but only if she has received some property or money from her late husband. Two judges, Justice Mukta Gupta and Justice Neena Bansal Krishna, rejected a case brought by a widowed daughter-in-law and her granddaughter. They had filed this case under Section 19 of the Family Court Act, 1984. They were trying to overturn an earlier court decision from May 3, 2019. This earlier decision had postponed their request for temporary financial support, which they had sought under Section 19 of the Hindu Adoption and Maintenance Act, 1956. The daughter-in-law (appellant no. 1) married the father-in-law's son on December 3, 2011. Their daughter (appellant no. 2) was born on October 1, 2012. Sadly, the husband died on December 14, 2013. The very next day, the wife and her daughter moved to her parents' home. The father-in-law and mother-in-law (the respondents) claimed that the daughter-in-law never came back or stayed in touch with them. Instead, she filed her request for financial support four years later, on February 23, 2018. The daughter-in-law, in her request for temporary financial support, said she didn't have much education and no way to earn money for herself or her daughter. She explained that she relied completely on her old and sick parents for daily living costs. She also mentioned that the father-in-law (respondent No. 1) was educated and worked for the MTNL department, and he had a duty to support them. But she claimed that the in-laws had purposely ignored them and refused to pay any money for their support. She claimed that the father-in-law not only received his regular salary but also earned about ₹20,000 each month from rent. His total monthly income was supposedly between ₹55,000 and ₹65,000. Because of this, she asked for temporary financial support of ₹30,000 per month until the main case was resolved. On the other hand, the in-laws argued that the daughter-in-law and granddaughter were not allowed to receive any support under Section 19 of the Act. They said this was because the husband had not left behind any property or money when he died. The Family Court, in its challenged decision, noted that the daughter-in-law had not shown any property or money left by her husband with the in-laws from which she or her daughter could ask for support. So, her request was turned down. The main reason for appealing to the High Court was that the widowed daughter-in-law and granddaughter believed they should get financial support from the father-in-law. This was true even if the property belonged solely to the in-laws or grandparents, and they had earned it themselves. They argued that the earlier court had not understood the situation correctly and had wrongly refused them support. The High Court stated, "The daughter-in-law has not shown that any of her husband's property or money was passed on to the in-laws. On top of that, the father-in-law (respondent No. 1) has already passed away. Now, only the mother-in-law (respondent No. 2) is alive, and the daughter-in-law and granddaughter cannot automatically demand support from her." The Court believed that Section 22 of the Act allowed the family members who inherited property from a deceased person to provide support to the deceased person's dependents. However, this only applied if those family members had actually received property or money from the deceased. The Court said, "As we've already pointed out, neither the mother-in-law nor the husband's sister inherited any property from the deceased husband of the daughter-in-law. Therefore, the daughter-in-law and granddaughter cannot claim support from them. The Family Judge's earlier decision, which was challenged, had no error." Because of this, the appeal was rejected.
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1. This is a petition under Article 226 of the Constitution of India filed by one Aijaz Ahmad Sofi, [“the detenue”], through his mother seeking quashment of his detention order no. DMS/PSA/139/2021 dated 28.02.2022 issued by District Magistrate, Srinagar, whereby the detenue has been put under preventive detention with a view to prevent him from acting in any manner prejudicial to the maintenance of security of state. 2. The impugned order is assailed by the detenue on the ground that the representation submitted by the detenue through his mother to the respondent no. 2, through registered post on 26.4.2022 has not been considered, and, therefore, a valuable fundamental right guaranteed to the detenue under Article 22 of the Constitution of India has been violated. 3. The detenue has also challenged the impugned order on the ground that the detaining authority has not shown its awareness with regard to the grant of bail to the detenue in FIR 26/2014 which speaks volumes about the non-application of mind on the part of the detaining authority. It is lastly urged that the relevant material relied upon in the grounds of detention was never served on the detenue, which disabled him to make effective representation against his detention. 4. The detenue has raised several other grounds to challenge the detention order. The counsel for the detenue, however, only presses aforesaid grounds of challenge. 5. Respondents have filed their reply affidavit stating therein that having regard to the nature of activities that the detenue had been indulging in over a period of time, the detaining authority was of the opinion that remaining of the detenue at large was detrimental to the security of the state. There is no averment in the reply affidavit as to whether the representation made by the detenue through his mother, was ever considered, though the detenue has placed on record postal receipt evidencing the moving of the representation dated 26.4.2022 by the detenue. 6. Having heard learned counsel for the for the detenue and perused the material on record, I am of the considered view that the impugned order of detention does not sustain in the eye of law, in that, the representation made on his behalf by his mother has not been considered by the respondents. Right of the detenue to make a representation and to have the same considered by the competent authority is a fundamental right guaranteed to a person under detention under Article 22 of the Constitution and the infraction of such a right renders the detention illegal and unconstitutional. 7. The detenue has not only specifically averred but has also placed on record copy of the representation submitted by the detenue through his mother. Although the respondents are silent about the representation made by the detenue through his mother, but the detenue has placed on record the postal receipt testifying the submission of the representation by him through his mother. There is no denial or rebuttal of the same by the respondents in their reply affidavit. In these circumstances, this Court has no option but to presume that the representation has been made by the detenue through his mother to the competent authority but the same has not been adverted to and considered. That being the admitted position, it is foregone conclusion that the order of detention impugned in this petition cannot survive on the touchstone of settled legal position and the express right guaranteed to the detenue under Article 22 of the Constitution of India. [See Pankaj Kumar Chakrabarty & others Vs. State of West Bengal, AIR 1970 SC 97, a Constitution Bench Judgment]. 8. From the perusal of the objections filed by the respondents, it is abundantly clear that the detenue has been served with a copy of the detention order and the grounds of detention, but has not been supplied other material relied upon in the grounds of detention viz. FIR, reference of which is made by the detaining authority in the grounds of detention. It is thus clear that the detenue has also been deprived of relevant material which was required to be supplied to him along with the grounds of detention so as to enable him to make an effective representation. 9. Even though the detenue was not provided the requisite material, and he was only informed that he can make a representation to the government without specifying the authority to whom he can make the representation, the detenue through his mother moved a representation to respondent no. 2. Although, the respondents have denied to have received any representation from the detenue, the postal receipt on record of the file testifies that the detenue has moved the representation through his mother to the respondent no. 2, which representation was not considered by the competent authority. 10.For the foregoing reasons, I find merit in this petition and the same is accordingly allowed. The detention order impugned in this petition bearing no. DMS/PSA/139/2021 dated 28.2.2022 is set aside and the respondents are directed to release the detenue forthwith from the detention, if not required in any other case.
The Jammu and Kashmir and Ladakh High Court recently said that if the government official who orders an arrest (the detaining authority) does not look at a prisoner's (detenu's) request against being held, it goes against the prisoner's rights under Article 22 of the Constitution. Justice Sanjeev Kumar stated: "I believe the arrest order itself is not valid because the government officials did not consider the request made by the prisoner's mother. A prisoner has a basic right (fundamental right) under Article 22 of the Constitution to make such a request and have it reviewed by the correct authority. If this right is ignored, the arrest becomes illegal and goes against the Constitution." The Court was reviewing a formal request filed by Aijaz Ahmad Sofi's mother. She asked for his arrest order, issued by the top official in Srinagar (District Magistrate), to be canceled. The main reason for challenging the arrest was that the government official who ordered it had not considered the request submitted by the prisoner. The prisoner claimed that the official who ordered his arrest didn't even know he had been given bail for one of the initial charges that led to his detention. This showed that the official had not thought carefully about the case. The government (Respondent) argued that based on the prisoner's actions, the official believed he would be a danger to the state's safety if he remained free. However, the government's response did not say whether they had accepted or rejected the request made by the prisoner through his mother. The Court said, "The prisoner has not only clearly stated but also provided a copy of the request submitted by his mother. Even though the government officials are silent about this request, the prisoner has provided a postal receipt proving it was sent. The government has not denied this in their written response. Given these facts, this Court has no choice but to assume that the prisoner's mother did send the request to the correct officials, but it was never looked at or considered." The Court concluded that the arrest order questioned in this case could not stand up against existing legal rules and the clear right given to the prisoner under Article 22 of the Constitution. Therefore, the request to cancel the arrest was approved.
1. This is a petition under Article 226 of the Constitution of India filed by one Aijaz Ahmad Sofi, [“the detenue”], through his mother seeking quashment of his detention order no. DMS/PSA/139/2021 dated 28.02.2022 issued by District Magistrate, Srinagar, whereby the detenue has been put under preventive detention with a view to prevent him from acting in any manner prejudicial to the maintenance of security of state. 2. The impugned order is assailed by the detenue on the ground that the representation submitted by the detenue through his mother to the respondent no. 2, through registered post on 26.4.2022 has not been considered, and, therefore, a valuable fundamental right guaranteed to the detenue under Article 22 of the Constitution of India has been violated. 3. The detenue has also challenged the impugned order on the ground that the detaining authority has not shown its awareness with regard to the grant of bail to the detenue in FIR 26/2014 which speaks volumes about the non-application of mind on the part of the detaining authority. It is lastly urged that the relevant material relied upon in the grounds of detention was never served on the detenue, which disabled him to make effective representation against his detention. 4. The detenue has raised several other grounds to challenge the detention order. The counsel for the detenue, however, only presses aforesaid grounds of challenge. 5. Respondents have filed their reply affidavit stating therein that having regard to the nature of activities that the detenue had been indulging in over a period of time, the detaining authority was of the opinion that remaining of the detenue at large was detrimental to the security of the state. There is no averment in the reply affidavit as to whether the representation made by the detenue through his mother, was ever considered, though the detenue has placed on record postal receipt evidencing the moving of the representation dated 26.4.2022 by the detenue. 6. Having heard learned counsel for the for the detenue and perused the material on record, I am of the considered view that the impugned order of detention does not sustain in the eye of law, in that, the representation made on his behalf by his mother has not been considered by the respondents. Right of the detenue to make a representation and to have the same considered by the competent authority is a fundamental right guaranteed to a person under detention under Article 22 of the Constitution and the infraction of such a right renders the detention illegal and unconstitutional. 7. The detenue has not only specifically averred but has also placed on record copy of the representation submitted by the detenue through his mother. Although the respondents are silent about the representation made by the detenue through his mother, but the detenue has placed on record the postal receipt testifying the submission of the representation by him through his mother. There is no denial or rebuttal of the same by the respondents in their reply affidavit. In these circumstances, this Court has no option but to presume that the representation has been made by the detenue through his mother to the competent authority but the same has not been adverted to and considered. That being the admitted position, it is foregone conclusion that the order of detention impugned in this petition cannot survive on the touchstone of settled legal position and the express right guaranteed to the detenue under Article 22 of the Constitution of India. [See Pankaj Kumar Chakrabarty & others Vs. State of West Bengal, AIR 1970 SC 97, a Constitution Bench Judgment]. 8. From the perusal of the objections filed by the respondents, it is abundantly clear that the detenue has been served with a copy of the detention order and the grounds of detention, but has not been supplied other material relied upon in the grounds of detention viz. FIR, reference of which is made by the detaining authority in the grounds of detention. It is thus clear that the detenue has also been deprived of relevant material which was required to be supplied to him along with the grounds of detention so as to enable him to make an effective representation. 9. Even though the detenue was not provided the requisite material, and he was only informed that he can make a representation to the government without specifying the authority to whom he can make the representation, the detenue through his mother moved a representation to respondent no. 2. Although, the respondents have denied to have received any representation from the detenue, the postal receipt on record of the file testifies that the detenue has moved the representation through his mother to the respondent no. 2, which representation was not considered by the competent authority. 10.For the foregoing reasons, I find merit in this petition and the same is accordingly allowed. The detention order impugned in this petition bearing no. DMS/PSA/139/2021 dated 28.2.2022 is set aside and the respondents are directed to release the detenue forthwith from the detention, if not required in any other case.
The Jammu and Kashmir and Ladakh High Court recently said that if the government official who orders an arrest (the detaining authority) does not look at a prisoner's (detenu's) request against being held, it goes against the prisoner's rights under Article 22 of the Constitution. Justice Sanjeev Kumar stated: "I believe the arrest order itself is not valid because the government officials did not consider the request made by the prisoner's mother. A prisoner has a basic right (fundamental right) under Article 22 of the Constitution to make such a request and have it reviewed by the correct authority. If this right is ignored, the arrest becomes illegal and goes against the Constitution." The Court was reviewing a formal request filed by Aijaz Ahmad Sofi's mother. She asked for his arrest order, issued by the top official in Srinagar (District Magistrate), to be canceled. The main reason for challenging the arrest was that the government official who ordered it had not considered the request submitted by the prisoner. The prisoner claimed that the official who ordered his arrest didn't even know he had been given bail for one of the initial charges that led to his detention. This showed that the official had not thought carefully about the case. The government (Respondent) argued that based on the prisoner's actions, the official believed he would be a danger to the state's safety if he remained free. However, the government's response did not say whether they had accepted or rejected the request made by the prisoner through his mother. The Court said, "The prisoner has not only clearly stated but also provided a copy of the request submitted by his mother. Even though the government officials are silent about this request, the prisoner has provided a postal receipt proving it was sent. The government has not denied this in their written response. Given these facts, this Court has no choice but to assume that the prisoner's mother did send the request to the correct officials, but it was never looked at or considered." The Court concluded that the arrest order questioned in this case could not stand up against existing legal rules and the clear right given to the prisoner under Article 22 of the Constitution. Therefore, the request to cancel the arrest was approved.
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On 03.02.2022, a news item appeared in Mathrubumi daily that the Travancore Devaswom Board has leased out Pamba-Triveni Manalppuram to a Trust for conducting programme by name 'Ramakatha', from 19.02.2022 till 27.02.2022. As per that news report, the Board has already issued orders in this regard. Under the initiative of the said Trust, Pamba-Triveni Manalppuram and surroundings are cleaned. Activities relating to erection of 'pantal' are going on. The parking area and helipad at Nilakkal are also leased out on depositing rent and necessary charges for supply of electricity and water. Nilakkal and Pamba are 'High Security Zone' and there is no clarity as to whether Police clearance has already been obtained for conducting the programme and use of 2. On 03.02.2022, Registry was directed to initiate suo motu proceedings based on the aforesaid news item and list the matter before the Devaswom Bench, on that day itself. A copy of the D.B.P. was ordered to be issued to the learned State Attorney, the learned Standing Counsel for the Travancore Devaswom Board and also to the learned Amicus Curiae for the Special Commissioner, Sabarimala. 3. On 04.02.2022, when this D.B.P. was taken up for consideration, the learned Standing Counsel for the Travancore Devaswom Board has filed a statement producing therewith Ext.R3(a) request dated 26.08.2021 made by Shri Nandkishore Bajoria Charitable Trust seeking permission to organise a 9 day programme by name 'Ramakatha' by Morari Bapu in Pamba from 09.10.2021 to 17.10.2021; Annexure R3(b) order dated 31.12.2021 of the Secretary of the Travancore Devaswom Board, whereby permission has been granted for conducting that programme, subject to the conditions stipulated therein, from 19.02.2022 to 27.02.2022; Ext.R3(c) communication dated 27.01.2022 of the District Medical Officer (Health), Pathanamthitta, addressed to the Managing Trustee of Shri Nandkishore Bajoria Charitable Trust, advising to conduct the programme online, since Pathanamthitta District is included in 'Category C', considering the total number of Covid cases; and Ext.R3(d) communication dated 28.01.2022 of the Executive Officer, Sabarimala, to the District Collector, Pathanamthitta, regarding the conduct of the aforesaid programme. 4. By the order dated 04.02.2022, the District Medical Officer (Health), Pathanamthitta, the Deputy Director, Periyar West Forest Division, Peerumedu, and Shri Nandkishore Bajoria Charitable Trust, represented by its Managing Trustee, were suo motu impleaded as additional respondents 8 to 10 in this D.B.P. The learned Senior Government Pleader took notice for respondents 1, 2, 5 and 6 and the learned Special Government Pleader (Forest) took notice for the additional 9 th respondent. The learned Standing Counsel for the Travancore Devaswom Board took notice for respondents 3, 4 and 7. Urgent notice through e-mail was ordered to the 10th respondent, returnable by 07.02.2022. 5. On 07.02.2022, the 10th respondent entered appearance through counsel and sought time to file counter affidavit. The learned Senior Government Pleader sought time to get instructions on the permission/clearance granted to the 10th respondent to conduct programme by name 'Ramakadha' in Pamba, from 19.02.2022 to 27.02.2022, and also for use of Helipad at Nilakkal. 6. On 10.02.2022, the Forest Range Officer, Pamba Range was suo motu impleaded as the additional 11th respondent. The learned Special Government Pleader (Forest) entered appearance for the additional 11th respondent. The 10th respondent filed a counter affidavit producing therewith Exts.R10(a) to R10(j) documents. The learned counsel for the 10th respondent submitted that said respondent has already sought permission for conducting the programme at Pamba, by submitting applications before the concerned authorities. The learned Senior Government Pleader, on instructions, submitted that the 6th respondent District Police Chief is yet to be informed about the conduct of such a programme at Pamba by the 10th respondent. The Station House Officer, Pamba Police Station, vide Ext.R10(e) letter dated 01.02.2022 has already informed the 10th respondent about the restrictions imposed by the District Administration in connection with Covid-19 pandemic. On Ext.R10(c) request made by the 10th respondent to provide Elephant Squad at Pamba, the Chief Wildlife Warden is awaiting the legal opinion from the learned Special 7. The learned Senior Government Pleader, on instructions from the Range Forest Officer, Pamba, pointed out that, the land at Pamba is leased out to the Travancore Devaswom Board for the specific purpose of pilgrim support, which cannot be used for any other purpose. The helipad at Nilakkal is under the control of the Travancore Devaswom Board. Neither the District Administration nor the District Police are informed about the use of that helipad in connection with the programme of the 10th respondent. By the order dated 10.02.2022, the learned Standing Counsel for the Travancore Devaswom Board was directed to get instructions on the use of helipad at Nilakkal in connection with the programme in question. The learned Senior Government Pleader was directed to file a statement, based on the instructions already received, by 11.02.2022, and to get instructions as to whether Pathanamthitta District still falls under 'C Category'. The learned counsel for the 10 th respondent submitted that the said respondent has already identified another helipad, in case there is any issues in using the helipad at Nilakkal, for want of clearance. 8. On 14.02.2022, the 5th respondent District Collector has filed a statement dated 10.02.2022. The additional 9 th respondent Deputy Director, Periyar West Forest Division, has also filed a statement dated 10.02.2022. The petitioner has filed a reply affidavit dated 14.02.2022. The learned Senior Government Pleader, the learned Special Government Pleader (Forest), the learned Standing Counsel for the Travancore Devaswom Board and also the learned counsel for the 10th respondent were heard. The learned Special Government Pleader (Forest) sought time to get further instructions from the 9th respondent. By the order dated 14.02.2022, the learned Standing Counsel for Travancore Devaswom Board was directed to make available for the perusal of this Court few photographs of the temporary structures put up by the 10 th respondent and the matter was ordered to be listed at 4.00 pm for further consideration. 9. On 14.02.2022, when this D.B.P. was taken up again at 4.00 p.m., the learned Special Government Pleader (Forest) made available for the perusal of this Court a copy of G.O.(Ms.)No.410/70/Agri dated 28.12.1970, leasing out 10 acres of forest land on the right side of the route from Pamba kadavu to the Sannidhanam to the Travancore Devaswom Board, subject to the terms and conditions stipulated therein. The learned Special Government Pleader and also the learned Standing Counsel for Travancore Devaswom Board made available for the perusal of this Court, few photographs of the temporary structures put up by the 10th respondent. The learned Special Government Pleader sought time to produce a typed copy of the Government Order dated 28.12.1970. While listing this D.B.P. to 15.02.2022 for further consideration, it was made clear that, it would be open to the learned Standing Counsel for the Travancore Devaswom Board to file additional affidavit of the 3rd respondent, if found necessary. 10. On 15.02.2022, when this D.B.P. came up for consideration, the learned Standing Counsel for the Travancore Devaswom Board filed an additional statement on behalf of the 3rd respondent, producing therewith Annexure R3(e) Civil Aviation Requirements (CAR), which deals with Minimum Safety Requirements for Temporary Helicopter Landing Area; and Annexure R3(f) communication dated 14.06.2019 of the Ministry of Civil Aviation, wherein it is stated that the Helicopter operators only need to inform the District authorities of their operations and are not required to take approval. The learned Special Government Pleader (Forest) made available for perusal of this Court few photographs of the temporary structures put up by the 10 th respondent at Pamba Manalppuram, with copy to the learned Standing Counsel for the Travancore Devaswom Board and also the learned counsel for the 10th respondent (through WhatsApp). 11. Going by the avernments in the counter affidavit filed on behalf of the 10 th respondent Shri Nandkishore Bajoria Charitable Trust, seeking permission to conduct a nine-day programme 'Ramakatha' at Pamba, from 19.02.2021 till 27.02.2022 by Morari Bapu, who is a spiritual Guru and exponent of 'Ramacharithamanasam', the Trust submitted Ext.R10(a) application dated 24.11.2021 before the Executive Officer, Pamba. It is stated in Ext.R10(a) application that the programme organised and sponsored by the Trust, with a limited audience of 40-60 people, will be aired live on Aastha TV channel. As per Ext.R10(a) application, the requirements for the programme are as follows; New Annadhana Mandapam - full building – kitchen dining and labour stay (50 to 100 staff); space for putting up 10 to 30 VIP tents in the space between new and old Annadhana Mandapam; 10,000 sq.ft. space at Pamba Manalppuram from Triveni Bridge to Foot Bridge for VIP tents and ‘Katha Pandal’; space at Pamba Manalppuram from Foot Bridge Aarattu Kadavu for temporary house for Morari Bapu; 10 rooms at Pamba; parking space for cars; Nilakkal helipad; water and electricity, permission to shoot the event and make it live in Aastha TV channel; recommendation to Forest and Health Departments; recommendation to Police and Fire Services; arrangement for Sabarimala darshan of Morari Bapu on 17.02.2022. The Trust sought permission to have access to the aforesaid space and facility from 21.01.2022. 12. In the counter affidavit, it is stated that, the 10th respondent decided to conduct 'Ramakatha' recitation by Morari Bapu at Pamba Manalppuram, as it was a long cherished wish of Morari Bapu to recite ‘Ramakatha’ at Pamba, as it is believed that Sree Rama and Lakshmana have conducted the ritual of 'bali' of their father at Pamba. With a request to conduct 'Ramakatha' recitation by Morari Bapu at Pamba Manalppuram, the 10th respondent approached the Travancore Devaswom Board, earlier in the year 2020. Thereafter, in the year 2021, the 10 th respondent submitted Exhibit R10(a) application before the Board seeking permission. Based on that application, the Board granted permission to the 10th respondent to conduct the programme 'Ramakatha' at Pamba Manalppuram, from 19.02.2022 till 27.02.2022, subject to the terms and conditions to be insisted by the Board, and in accordance with the directions issued by the officers in the Devaswom and Maramath wings and also the Superintendent of Police (Vigilance and Security). The decision taken by the Board was communicated to the Devaswom Commissioner, vide Ext.R10(b) communication of the Board, dated 31.12.2021. 13. The 10th respondent submitted Ext.R10(c) application dated 24.01.2022 before the Chief Wildlife Warden for providing Elephant Squad at Pamba, from 24.01.2022 to 28.02.2022, since they will be starting the cleaning and setting up temporary tents at Pamba Manalppuram from 24.01.2022 onwards. The 10th respondent submitted Ext.R10(d) application dated 15.01.2022 before the Assistant Engineer, Kerala Water Authority, Pamba, for temporary water connection. In paragraph 3 of the counter affidavit, it is stated that, based on the permission granted by the Travancore Devaswom Board, the 10th respondent approached all statutory authorities including Forest Department, Kerala State Electricity Board, Kerala water Authority, Police, Health Department and also Fire and Rescue Services. The 10 th respondent has also informed the District Administration about the conduct of 'Ramakatha' at Pamba Manalppuram, as VIPs including Constitutional dignitaries are expected to attend the 14. In paragraph 3 of the counter affidavit, it is stated that, to facilitate the permissions sought for using space at Pamba Manalppuram for putting up tents, use of helipad at Nilakkal, etc. the 10th respondent offered the Travancore Devaswom Board an amount of Rs.7 lakhs as offerings for annadhanam, out of which Rs.3 Lakhs has already been paid. The 10th respondent paid Rs.5 lakhs for using Pamba Manalppuram and Rs.3 lakhs for 10 rooms at Annadana Mandapam. An amount of Rs.3 lakhs has already been paid as caution and cleaning deposit. An amount of Rs.1,62,000/- has been paid to the Kerala State Electricity Board for getting temporary connection and for necessary installations. An amount of Rs.1 lakh has been paid to the Kerala Water Authority for temporary water connection. The 10 th respondent has already spent more than Rs.10 lakhs for cleaning the premises at Pamba. 15. In paragraph 3 of the counter affidavit, it is stated that, the 10th Respondent has also approached the Forest Department for service of the Elephant Squad as there were reports of the chance of elephants at Pamba during the programme. The Station House Officer, Pamba informed the 10th respondent, vide Ext.R10(e) communication dated 01.02.2022, about the restrictions in conducting the programme at Pamba, as Pathanamthitta district is included in Pathanamthitta has also informed the 10th respondent vide Ext.R10(f) communication dated 27.01.2022 that, for the aforesaid reason the programme at Pamba can be conducted only online. Now Pathanamthitta district is included in 'Category B' and as such participation of 20 persons in a programme is permissible. Though the 10th respondent approached the authorities, it is informed that permission can be considered only after the disposal of this D.B.P. 16. The document marked as Ext.R10(f) is a communication dated 25.01.2022 of the Regional Fire Officer, Fire and Rescue Services, Kottayam, on the application made by the 10th respondent to avail the services of Fire and Rescue Services at Pamba during the programme. The 10 th respondent has produced Ext.R10(h) series of photographs of 'Ramakatha' recitations by Morari Bapu at various places, in order to show that those programmes were attended by several eminent persons and Constitutional dignitaries. The document marked as Ext.R10(i) is a copy of the Government order dated 04.02.2022 modifying Covid protocols in Kerala. 17. In paragraph 4 of the counter affidavit, it is stated that, the 10th Respondent sought the permission of the Travancore Devaswom Board for the exclusive use of helipad at Nilakkal for Morari Bapu since he is not in a position to travel by road due to old age. The 10th respondent entrusted the operation of the Helicopter to Halo Airways Pvt. Ltd., which is the agency of Travancore Devaswom Board, which has permission to operate at Nilakkal. The agency which is a sub agency of M/s. Span Air Private Ltd. has got necessary permissions from the Director General of Civil Aviation to operate helicopters. The agency has complied with all the requirements of the latest rules and regulations of the Director General of Civil Aviation, which has licence and permissions to operate helicopter at Nilakkal. The document marked as Ext.R.10(j) is a copy of the Certificate of Airworthiness dated 13.01.2022 issued by the Director General of Civil Aviation to BELL 407 GX helicopter with Aircraft Registration VT-NAL. According to the 10th respondent, its attempt is to propagate ‘sanatana dharma’ and 'Ramacharithamanasam', which is totally in tune with the traditions and rituals that are being followed in Sabarimala Temple. The 10 th Respondent would undertake that the recital of 'Ramakatha' at Pamba will be conducted strictly in compliance with the rules and regulations insisted by the authorities. 18. In the statement filed on behalf of the 3 rd respondent Travancore Devaswom Board, it is stated that, on Annexure R3(a) application dated 26.08.2021 made by the 10th respondent to conduct 'Ramakatha' recitation by Morari Bapu at Pamba Manalppuram, the Travancore Devaswom Board obtained the report of the Devaswom Commissioner, and thereafter decided in principle to grant permission to the Trust to conduct the programme at Pamba Manalppuram from 19.02.2022 to 27.02.2022, subject to the terms and conditions prescribed by the Board and the instructions and guidelines prescribed by the Devaswom and Maramath wings and also the Superintendent of Police (Vigilance and Security). Annexure R3(b) communication dated 31.12.2021 required the 10th respondent to execute an agreement embodying the terms and conditions for the use. Pursuant to the permission granted by the Board, the 10th respondent has levelled and cleaned Pamba Manalppuram and started the construction of an open stage. Along with the statement, a copy of the communication dated 27.01.2022 of the District Medical Officer (Health), Pathanamthitta is produced as Annexure R3(c), whereby the 10th respondent was informed that, since Pathanamthitta district is in ‘Category C’ the programme at Pamba can be conducted only online. On 28.01.2022, the Executive Officer, Sabarimala has requested the District Collector, Pathanamthitta, vide Annexure R3(d) communication, the services and cooperation of all Departments for the programme. 19. In the statement, it is stated that, the 10th respondent has agreed to pay Rs.8 lakhs towards rent, Rs.6 lakhs as donation to Annadhanam Fund, sponsored annadhanam at Sabarimala on 18.02.2022, agreed to bear the charges at the rate of Rs.20,000/- per landing for using the helipad at Nilakkal, and provide food kits for one month to 450 tribal families in Nilakkal. The 10 th respondent has also remitted Rs.3 lakhs as security deposit. The 3 rd respondent Travancore Devaswom Board granted permission to the 10 th respondent, considering the fact that it is a spiritual and devotional programme conducted without affecting the sanctity of Sabarimala and Pamba and respecting the rituals and custom of the Temple. The permission is given to conduct the programme from 19.02.2022 to 27.02.2022, after ‘kumbamasa pooja’, without causing any inconvenience or difficulties to pilgrims. 20. In the statement filed by the 5th respondent District Collector, Pathanamthitta dated 10.02.2022, it is stated that, Pathanamthitta district was included in 'Category B' in view of the third wave of Covid-19 Pandemic. Now the district is included in 'Category B' and the maximum persons permitted for religious functions is 20 persons as per G.O. (Rt)No.109/2022/Disaster Management dated 04.02.2022. The area including Sabarimala and Pamba is in Periyar Tiger Reserve, under the Ministry of Environment, Forest and Climate Change. The organisers have to obtain requisite permission from the Forest and Wildlife Department, Irrigation Department and Revenue (Devaswom) Department. In such circumstances, the 5th respondent has issued Annexure R5(a) communication dated 03.02.2022 to the Travancore Devasom Board, informing the Board that the permission granted to 10 th respondent for conducting the 'Ramakatha' at Pamba Manalppuram may be cancelled. It was also informed to the Board that before giving consent for conducting such events, opinion of the Departments concerned and that of the Government may be obtained. No intimation regarding the use of Nilakkal helipad from 19.02.2022 to 27.02.2022 has been received in the office of the 5th respondent, till the date of filing of the statement, i.e., till 10.02.2022. 21. The stand taken in the counter affidavit filed by the 9th respondent Deputy Director, Periyar Tiger Reserve West Division is that, Pamba Manalppuram lies well within Periyar Tiger Reserve and the Travancore Devaswom Board has permitted the 10th respondent to use Pamba Manalppuram for an activity that is not related to Sabarimala pilgrimage. The Board granted such permission to the 10th respondent for using Pamba Manalppuram situated within the Periyar Tiger Reserve for rent, without any consent from the Kerala Forest Department or Cheif Wildlife Warden. The Kerala Forest Department has given 10 acres of land on lease to the Board at Pamba as per Government Order G.O (Ms.)No.410/70/Agri. dated 28.12.1970 and 8.5 acres of land diverted to the Board around Ganapathi Temple as per Government Order G.O. (Ms.)No.97/86 dated 22.10.1986 to arrange facilities for the Sabarimala pilgrims. In the above Government Order dated 28.12.1970 it is specifically mentioned as condition No.(vii) that, "if the land is put to any use other than for providing amenities to pilgrims, the lease will be terminated and the land will revert to Government”. According to the 9th respondent, the event, 'Ramakatha' proposed to be conducted at Pamba Manalppuram is an activity with no connection with the pilgrimage. Therefore the permission issued by the Travancore Devaswom Board to conduct the programme has to be set 22. in the statement filed by the 9th respondent, it is stated that Sabarimala is a heavily visited shrine located amidst the wet evergreen forest in the western part of Periyar Tiger Reserve. The Periyar Tiger Reserve is considered as a very important protected area for the tigers and other wildlife including elephants, gaurs, leopards, sloth bears, etc. and several other endemic and endangered flora and fauna. Periyar is one of the best protected tiger habitats in the country and it is the source population for the adjoining vast forest landscape of Ranni Forest Division and other Forest Divisions. Sabarimala Temple is located within the core habitat of the Periyar Tiger Reserve, which attracts millions of pilgrims annually with considerable impact on the environment of the sacred forests around Sabarimala (Poomkavanam). The main pilgrimage season is from mid-November to mid-January every year. The temple also opens during the first five days of every Malayalam month and on special occasions like Onam and Vishu. Over the years, with the increase in the number of pilgrims, large-scale development has taken place at Sabarimala and Pamba causing severe degradation of the sacred forests of Poomkavanam and the adverse impact on wildlife during these periods is substantial. The wildlife movement is very high during the days on which the temple is closed and substantial presence including that of tiger is being recorded in and around Pamba and Sannidhanam landscape via camera traps especially during the days on which the temple is closed. Therefore a program during the days on which the temple is closed in Pamba will affect the normal life of wildlife in and around Pamba. The movement of wild animals near the river may also cause man-animal conflict issues during the off-season days. Moreover, the sound and light arrangements as part of the programme inside the Periyar Tiger Reserve during the days on which the temple is closed may affect the movement of wildlife as well as cause disturbance to the wildlife in their natural habitat. Therefore the program which has no connection with the Sabrimala Temple ought to be cancelled. The 10th respondent has agreed to pay lakhs of rupees to the Travancore Devaswom Board as rent for using Pamba Manalppuram and it is learned that the Board has further rented out the Nialakkal base camp and helipad at Nilakkal also to the said respondent to discourse 'Ramakatha' which will also be against the security concerns in a High Security Zone like Sabarimala, besides being an unwarranted disturbance to the wildlife habitats in these areas. Further it is against the terms and conditions of the G.O(Ms.)No. 410/70/Agri. Dated 28.12.1970 and the Forest 23. According to the 9th respondent, the Travancore Devaswom Board in the present instance is trying to rent out Pamba Manalppuram for financial gains. The Board has deliberately issued permission illegally for financial gains and they are trying to justify it on the basis of false and hypothetical arguments. Financial considerations of the Board have gained precedence over environmental considerations as well as religious sentiments. The activity of discourse of 'Ramakatha' in Pamba is not essential or integral part of the pilgrimage to Sabarimala or traditional religious activity at Sabarimala (either at Pamba or Sannidhanam or any other place connected with Sabarimala) and is only intended as an activity with commercial eye and with the intention of initially opening up Pamba Manalppuram space and thereafter other spaces in Sabarimala and Nilakkal for commercial exploitation. The grant of permission by the Board to conduct non-forest activities and activities prejudicial to wildlife inside a tiger reserve area without the permission of the Cheif Wildlife Warden and without permission under the Forest Conservation Act is illegal and liable to be set aside. The damage that may be caused to the wildlife and its habitat by such activity will be substantial and it will also cause adverse impact on the habitat of tigers in Periyar Tiger Reserve. Therefore, the order of the Board granting permission to the 10 th respodent is liable to be set aside. 24. The 10th respondent has filed reply affidavit to the statements filed by the 5th and 9th respondents. By Exhibit R5(a) communication dated 03.02.2022, the District Collector has required the Travancore Devaswom Board to cancel the permission granted to the 10th respondent for conducting 'Ramakatha' on the ground that Pathanamthitta District is included in ‘Category C’. But, since then Pathanamthitta District has been re-categorised and included in ‘Category B’, and as per the latest guidelines religious functions also can be conducted with attendance of 20 persons. In the affidavit filed before this Court, the 10th respondent has given an undertaking that the event will be conducted strictly adhering to the guidelines issued by the Government relating to Covid restrictions. Therefore, there is absolutely no issue in permitting the event of the 10th respondent scheduled to be held from 19.02.2022 to 27.02.2022. Moreover, two large religious conventions, viz., Maramon Convention and Cherukolpuzha Convention are permitted. 25. As far as the statement filed by the 9th respondent is concerned, the main objection taken is that the event cannot be conducted in Pamba as the land has been given to the Devaswom Board on lease by order G.O. (Ms.)No.410/70/Agri dated 28.12.1970 exclusively for providing amenities to pilgrims and since the event 'Ramakatha' proposed to be conducted in Pamba Manalppuram is an activity which has no connection with Sabarimala pilgrimage. It is further stated that the sound and light arrangement as part of the programme inside Periyar Tiger Reserve during the days when temple is closed will affect the movement of wildlife as well as it will cause disturbance to the wildlife in their natural habits. This statement has been filed by the officer of the Forest Department without knowing the connection of Pamba River and its Manalppuram with Ramayana. It is believed that during the Vanavasa of Lord Rama and Lakshmana, they met a girl called 'Neli' and she invited Lord Rama and Lakshmana to the Ashram of Mathanga Rishi and impressed with devout treatment that she had given to Lord Rama and Lakshmana, Lord Rama has given Neli 'moksha' and she became the Pamba River. It is believed that Sahyanuman and Sabari are the father and mother of Neli. In Ramayana it is stated that Lord Rama has met with Lord Hanuman at 'Rishimukhachalam' which is the Pamba Manalppuram. Lord Rama and Lakshmana have also performed the ritual of ‘bali' for his father and has taken a dip as part of this ritual at Pamba river which is called Triveni, and it is believed that taking a bath at Triveni Sangam after offering 'balidarppana' is a way to attain 'moksha'. It is in this background Morari Bapu had decided to recite 'Ramakatha’ at Pamba Manalppuram because of the connection Pamba and its banks have with Rama and Ramayanam. So, the event is aimed at increasing the divinity of divine Pamba Manalppuram which is directly connected with pilgrimage. Spreading the Sanadhana Dharma and its tenets including Ramacharithamanasam cannot be considered as a commercial activity. The recital of 'Ramakatha' at Pamba is not done on payment of any money. It is purely a religious affair with direct connection with the historical background of Pamba and its banks. So, in no way it can be said that the recital of 'Ramakatha’ has nothing to do with Sabarimala Pilgrimage. The recital of Vedas and other scriptures like ‘Ramacharithamanasam’ will increase divinity and it is in such background such recitals have regularly been done in temples. If the stand of the Forest Department is accepted, then the recital of any scriptures like Ramayana or Mahabharatha or chanting of manthras contained in Vedas cannot be done at Pamba Ganapathy Temple. In Pamba Temple deities of Lord Rama, Lord Sita and Lord Hanuman are there. On the day of Sree Rama Navami full day programme is conducted at Pamba Temple and during the Malayalam month of Karkkidakam, Ramayana recital is also a regular affair. If the stand of the Forest Department is accepted such practice are to be stopped as it has nothing to do with Sabarimala Pilgrimage, as stated by the Officer of the Forest. As stated earlier during the month of Karkkidakam several persons recite Ramayana at the temple and recital of 'Ramakatha' is an offering of Morari Bapu to Lord Rama, Sitha and Hanuman at Pamba. The permission was sought from the District authorities for conducting event as Morari Bapu is a widely followed religious and spiritual leader and large number of people may attend the programme. It was in such circumstances, the 10th respondent has approached the district authorities and undertook that the event will be conducted strictly in compliance with the Covid 26. In the additional statement filed by the 3 rd respondent, it is stated that, the Travancore Devaswom Board owns the helipad at Nilakkal. It was constructed by the High Power Committee constituted for the implementation of Sabarimala Master Plan and handed over to the Board. It is a temporary helipad being operated in terms of the minimum safety requirements and other site requirements prescribed by the Ministry of Civil Aviation, Government of India. The minimum safety requirements are prescribed for the purpose of smooth and efficient operation of helicopters, given their versatility and ability to land and take off from any terrain. As per Para-3.6 of Annexure-R3(e) Minimum Safety Requirements for Temporary Helicopter Landing Areas prescribed by the Director General of Civil Aviation, permission of the owner of the site shall be obtained, before it is used for helicopter operations and the district authorities notified in advance. Considering the fact that helicopter is meant to operate at very short notice even from unprepared surfaces, delay in the clearance process and the restrictions placed by district authorities negate the very benefit of using the versatility of the helicopter as it is intended to be used. Given the inherent advantage of helicopter versatility, the DGCA, had issued the CAR, apportioning the responsibility of safe helicopter operations from temporary helipads with the operator (who must merely notify the district authorities). As per Annexure- R3(f) communication given from the Ministry of Civil Aviation dated 14.06.2019, no approval is required from the district authorities for helicopter operations. The permission to use the helipad will be given by the Executive Engineer, Sabarimala Development Project, Travancore Devaswom Board, on getting request from the operator and paying the requisite fees. 27. Heard the learned Senior Government Pleader for respondents 1, 2, 5, 6 and 8, the learned Standing Counsel for Travancore Devaswom Board for respondents 3, 4 and 7, the learned Special Government Pleader (Forest) for additional respondents 9 and 11 and also the learned counsel for the 10 th 28. The learned counsel for the 10 th respondent would contend that the conduct of 'Ramakatha' recitation by Morari Bapu at Pamba Manalppuram is totally in tune with the traditions and rituals that are being followed in Sabarimala. On the strength of the permission granted by the Travancore Devaswom Board, as evidenced by Ext.R10(b) communication dated 31.12.2021, the 10th respondent is legally entitled to conduct the said programme from 19.02.2022 till 27.02.2022 subject to the terms and conditions to be insisted by the Board. On account of the restrictions imposed in connection with Covid-19 pandemic the programme will be conducted limiting the number of participants to 20. On the strength of the permission granted in Ext.R10(b) the 10 th respondent can put up temporary structures at Pamba Manalppuram. The learned Standing Counsel for Travancore Devaswom Board would submit that the Board granted permission to the 10 th respondent to conduct the programme 'Ramakatha' at Pamba Manalppuram, considering the fact that it is a spiritual and devotional programme conducted without affecting the sanctity of Sabarimala and Pamba and respecting the rituals and custom of the Temple. The permission is granted to conduct the said programme from 19.02.2022 to 27.02.2022, after 'Kumbamasa Pooja', without causing any inconvenience or difficulties to the pilgrims. 29. Per contra, the learned Senior Government Pleader and also the learned Special Government Pleader (Forest), would contend that the land at Pamba Manalppuram was leased out to Travancore Devaswom Board, vide Government Order dated 28.12.1970 for providing amenities to pilgrims. The event, namely, 'Ramakatha' proposed to be conducted at Pamba Manalppuram is an activity with no connection with the pilgrimage. They would also point out that the land around Pamba Ganapathy Temple was leased out to Travancore Devaswom Board for the specific purpose to arrange facilities for Sabarimala pilgrims. They would contend that the conduct of the 10th respondent in putting up structures for the programme 'Ramakatha' in Pamba Manalppuram is legally 30. Sabarimala Sree Dharma Sastha Temple, which is situated inside Periyar Tiger Reserve, is a prominent pilgrim centre in Kerala, where lacks of pilgrims trek the rugged terrains of Western Ghats to have darsan of Lord Ayyappa. Sabarimala Sree Dharma Sastha Temple and Malikappuram Temple come under the Travancore Devaswom Board. At Pamba Ganapathy Temple, which is a holy spot on the way from Pamba to Sannidanam is dedicated to Lord Ganesha, where the pilgrims offer prayer for safe trekking to Sannidanam. Pamba Ganapathy Temple also has subsidiary shrines dedicated to Nagarajavu, Goddess Parvati Devi, Adimoola Ganapati, Hanuman Swami, and Bhagvan Sree Rama. The main offering at Pamba Ganapathi Temple is coconut. The pilgrims trekking to Sannidanam carry an extra coconut to break it at Pamba Ganapathi Temple, before climbing the mountain. 31. 'Deva' means God and 'swom' means ownership in Sanskrit and the term 'Devaswom' denotes the property of God in common parlance. [See:Prayar Gopalakrishnan and another v. State of Kerala and others - 2018 (1) KHC 1950 enacted by the State Legislature makes provision for the administration, supervision and control of incorporated and unincorporated Devaswoms and of other Hindu Religious Endowments and Funds. As per sub-section (3) of Section 1 of the Act, substituted by the Kerala Adaptation of Laws Order, 1956, Part I of the Act shall extend to Travancore, Part II of the Act shall extend to Cochin and Part III of the Act shall extend to the whole of the State of Kerala, excluding the 33. Clause (a) of Section 2 of the Act defines the term ‘Board’ to mean the Travancore Devaswom Board constituted under Chapter II of the Act in accordance with the covenant. Clause (c) of Section 2 defines the term ‘incorporated Devaswoms’ to mean the Devaswoms mentioned in Schedule I, and ‘unincorporated Devaswoms’ to mean those Devaswoms including Hindu Religious Endowments whether in or outside Travancore which were under the management of the Ruler of Travancore and which have separate accounts of income and expenditure and are separately dealt with. Sabarimala Devaswom is an incorporated Devaswom mentioned in Schedule I of the Act, under Chengannur Group, Pathanamthitta Taluk. As per sub-clause (i) of clause (d) of Section 2, ‘person interested’ includes, in the case of temple, a person who is entitled to attend at or is in the habit of attending the performance of worship or service in the temple or who is entitled to partake or is in the habit of partaking in the benefit of the distribution of gifts thereat. 34. Chapter II of the Act deals with the Travancore Devaswom. Section 3 of the Act deals with vesting of administration in Board. As per Section 3, the administration of incorporated and unincorporated Devaswoms and of Hindu Religious Endowments and all their properties and funds as well as the fund constituted under the Devaswom Proclamation, 1097 M.E. and the surplus fund constituted under the Devaswom (Amendment) Proclamation, 1122 M.E. which were under the management of the Ruler of Travancore prior to the first day of July, 1949, except the Sree Padmanabhaswamy Temple, Sree Pandaravaka properties and all other properties and funds of the said temple, and the management of all institutions which were under the Devaswom Department shall vest in the Travancore Devaswom 35. Section 4 of the Act deals with constitution of the Travancore Devaswom Board. As per sub-section (2) of Section 4, the Board shall be a body corporate having perpetual succession and a common seal with power to hold and acquire properties for and on behalf of the incorporated and unincorporated Devaswoms and Hindu Religious Institutions and Endowments under the management of the Board. 36. Section 15 of the Act deals with vesting of jurisdiction in the Board. As per sub-section (1) of Section 15, subject to the provisions of Chapter III of Part I, all rights, authority and jurisdiction belonging to or exercised by the Ruler of Travancore prior to the first day of July, 1949, in respect of Devaswoms and Hindu Religious Endowments shall vest in and be exercised by the Board in accordance with the provisions of this Act. As per sub-section (2) of Section 15, the Board shall exercise all powers of direction, control and supervision over the incorporated and unincorporated Devaswoms and Hindu Religious Endowments under their 37. Section 15A of the Act, inserted by Act 5 of 2007, with effect from 12.04.2007, deals with duties of the Board. As per Section 15A, it shall be the duty of the Board to perform the following functions, namely, (i) to see that the regular traditional rites and ceremonies according to the practice prevalent in the religious institutions are performed promptly; (ii) to monitor whether the administrative officials and employees and also the employees connected with religious rites are functioning properly; (iii) to ensure proper maintenance and upliftment of the Hindu religious institutions; (iv) to establish and maintain proper facilities in the temples for the devotees. Section 16 of the Act deals with supervision and control by the Board. As per Section 16, the Board shall, subject to the provisions of Part I of the Act, exercise supervision and control over the acts and proceedings of all officers and servants of the Board and of the Devaswom 38. Section 24 of the Act deals with maintenance of Devaswoms, etc., out of Devaswom Fund. As per Section 24, the Board shall, out of the Devaswom Fund constituted under Section 25, maintain the Devaswoms mentioned in Schedule I [i.e. incorporated Devaswoms], keep in a state of good repair the temples, buildings, and other appurtenances thereto, administer the said Devaswoms in accordance with recognised usages, make contributions to other Devaswoms in or outside the State and meet the expenditure for the customary religious ceremonies and may provide for the educational uplift, social and cultural advancement and economic betterment of the Hindu community. 39. Section 27 of the Act deals with Devaswom properties. As per Section 27, immovable properties entered or classed in the revenue records as Devaswom Vaga or Devaswom Poramboke and such other Pandaravaga lands as are in the possession or enjoyment of the Devaswoms mentioned in Schedule I after the 30th Meenam, 1097 corresponding to the 12th April, 1922, shall be dealt with as Devaswom properties. The provisions of the Land Conservancy Act of 1091 (IV of 1091) shall be applicable to Devaswom lands as in the case of Government lands. 40. Section 31 of the Act deals with management of Devaswoms. As per Section 31, subject to the provisions of Part I and the rules made thereunder, the Board shall manage the properties and affairs of the Devaswoms, both incorporated, and unincorporated as heretofore, and arrange for the conduct of the daily worship and ceremonies and of the festivals in every temple according to its usage. 41. In view of the provisions under the Travancore- Cochin Hindu Religious Institutions Act referred to hereinbefore, conclusion is irresistible that, the administration of Sabarimala Devaswom, which is an incorporated Devaswom mentioned in Schedule I of the Act, and all its properties and funds shall vest in the Travancore Devaswom Board. The Board shall hold and acquire properties for and on behalf of Sabarimala Devaswom, under the management of the Board. Subject to the provisions of Chapter III of Part I, all rights, authority and jurisdiction belonging to or exercised by the Ruler of Travancore prior to the first day of July, 1949, in respect of the Sabarimala Devaswom shall vest in and be exercised by the Board in accordance with the provisions of this Act and the Board shall exercise all powers of direction, control and supervision over the Devaswom. 42. Under the provisions of the Act, the Board is duty bound to see that the regular traditional rites and ceremonies according to the practice prevalent in Sabarimala are performed promptly; to monitor whether the administrative officials and the employees, and also the employees connected with religious rites are functioning properly; and to establish and maintain proper facilities in Sabarimala for the devotees. The Board shall, out of the Devaswom Fund, maintain and administer Sabarimala Devaswom in accordance with recognised usages and meet the expenditure for the customary religious ceremonies. Subject to the provisions of Part I of the Act and the Rules made thereunder, the Board shall manage the properties and affairs of Sabarimala Devaswom and arrange for the conduct of the daily worship and ceremonies and of the festivals in Sabarimala according to the usage. 43. The Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 enacted by State Legislature provides for better provisions for the entry of all classes and sections of Hindus into places of public worship. Clause (b) of Section 2 of the Act defines ‘place of public worship’ to mean a place, by whatever name known or to whomsoever belonging, which is dedicated to, or for the benefit of, or is used generally by, Hindus or any section or class thereof, for the performance of any religious service or for offering prayers therein, and includes all lands and subsidiary shrines, mutts, devasthanams, namaskara mandapams and nalambalams, appurtenant or attached to any such place, and also any sacred tanks, wells, springs and water courses the waters of which are worshipped or are used for bathing or for worship, but does not include a ‘sreekoil’. 44. Section 3 of the Act provides that places of worship to be open to all sections and classes of Hindus. As per Section 3, notwithstanding anything to the contrary contained in any other law for the time being in force or any custom or usage or any instrument having effect by virtue of any such law or any decree or order of court, every place of public worship which is open to Hindus generally or to any section or class thereof, shall be open to all sections and classes of Hindus; and no Hindu of whatsoever section or class shall, in any manner, be prevented, obstructed or discouraged from entering such place of public worship, or from worshipping or offering prayers thereat, or performing any religious service therein, in the like manner and to the like extent as any other Hindu of whatsoever section or class may so enter, worship, pray or perform. As per the proviso to Section 3, in the case of a place of public worship which is a temple founded for the benefit of any religious denomination or section thereof, the provisions of this Section shall be subject to the right of that religious denomination or section, as the case may be, to manage its own affairs in matters of religion. 45. Section 4 of the Act deals with power to make regulations for the maintenance of order and decorum and the due performance of rites and ceremonies in places of public worship. As per sub-section (1) of Section 4, the trustee or any other person in charge of any place of public worship shall have power, subject to the control of the competent authority and any rules which may be made by that authority, to make regulations for the maintenance of order and decorum in the place of public worship and the due observance of the religious rites and ceremonies performed therein. As per the proviso to sub-section (1) of Section 4, no regulation made under this sub-section shall discriminate in any manner whatsoever, against any Hindu on the ground that he belongs to a particular section or class. As per sub-section (2) of Section 4, the competent authority referred to in sub-section (1) shall be, (i) in relation to a place of public worship situated in any area to which Part I of the Travancore-Cochin Hindu Religious Institutions Act, 1950, extends, the Travancore Devaswom Board; (ii) in relation to a place of public worship situated in any area to which Part II of the said Act extends, the Cochin Devaswom Board; and (iii) in relation to a place of public worship situated in any other area in the State of Kerala, the 46. In view of the provisions under Section 4 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act referred to hereinbefore, conclusion is irresistible that, the competent authority to make regulations for the maintenance of order and decorum and the due observance of the religious rites and ceremonies performed in a place of public worship situated in any area to which Part I of the Act of 1950 extends is the Travancore Devaswom Board. The competent authority in the case of a place of public worship situated in any area to which Part II of the Act of 1950 extends is the Cochin Devaswom Board. State Government is the competent authority in the case of a place of public worship situated in any other area in the State, i.e., an area to which Part I or Part II of the Act of 1950 has no application. Since Sabarimala is a place of public worship situated in an area to which Part I of the Act of 1950 extends, the competent authority to make regulations for the maintenance of order and decorum and the due observance of the religious rites and ceremonies performed in Sabarimala is the Travancore Devaswom Board. 47. As already noticed hereinbefore the 10th respondent Trust submitted Ext.R10(a) application dated 24.11.2021 before the Executive Officer, Pamba. It is stated in Ext.R10(a) application that the programme organised and sponsored by the Trust, with a limited audience of 40-60 people, will be aired live on Aastha TV channel. As per Ext.R10(a) application, the requirements for the programme are as follows; New Annadhana Mandapam - full building – kitchen dining and labour stay (50 to 100 staff); space for putting up 10 to 30 VIP tents in the space between new and old Annadhana Mandapam; 10,000 sq.ft. space at Pamba Manalppuram from Triveni Bridge to Foot Bridge for VIP tents and ‘Katha Pandal’; space at Pamba Manalppuram from Foot Bridge Aarattu Kadavu for temporary house for Morari Bapu; 10 rooms at Pamba; parking space for cars; Nilakkal helipad; water and electricity, permission to shoot the event and make it live in Aastha TV channel; recommendation to Forest and Health Departments; recommendation to Police and Fire Services; arrangement for Sabarimala darshan of Morari Bapu on 17.02.2022. The Trust sought permission to have access to the aforesaid space and facility from 21.01.2022. 48. The learned Special Government Pleader (Forest) has made available for the perusal of this Court few photographs to show the nature of constructions undertaken by the 10th respondent at Pamba Manalppuram for conducting the programme 'Ramakatha' from 19.02.2022 till 27.02.2022. Soft copy of the photographs has already been sent through WhatsApp on 15.02.2022 with copy to the learned Standing Counsel for Travancore Devaswom Board and also to the learned counsel for the 10th respondent. Few of those photographs are reproduced hereunder; 49. As evident from the aforesaid photographs, temporary structures have been put up at Pamba Manalppuram, which is leased out to the Travancore Devaswom Board, vide Government Order dated 28.12.1970 for providing pilgrim facilities. The construction of temporary structures were going on from 24.01.2022 onwards. As per Ext.R10(a), one of the requirements is to provide dining and labour stay for 50-100 staff, who are employed for putting up structures like VIP tents, 'Katha Pandal', etc. 50. On a query made by this Court, the learned counsel for the 10th respondent would submit that, about 50-60 employees were engaged daily from 24.01.2022 onwards, in connection with various activities including cleaning up of Pamba Manalppuram, in order to put up such VIP tents, Katha Pandal, etc. As evident from the photographs re-produced hereinbefore, considerable extent of Pamba Manalppuram is now being occupied by the 10 th respondent, with effect from 24.01.2022. After putting up such temporary structures, the entire area is fenced with tin-fence. 51. In A.A. Gopalakrishnan v. Cochin Devaswom Board [(2007) 7 SCC 482] a Three-Judge Bench of the Apex Court held that the properties of deities, temples and Devaswom Boards are required to be protected and safeguarded by their trustees/archakas/shebaits/employees. Instances are many where persons entrusted with the duty of managing and safeguarding the properties of temples, deities and Devaswom Boards have usurped and misappropriated such properties by setting up false claims of ownership or tenancy, or adverse possession. This is possible only with the passive or active collusion of the authorities concerned. Such acts of ‘fences eating the crops’ should be dealt with sternly. The Government, members or trustees of boards/trusts, and devotees should be vigilant to prevent any such usurpation or encroachment. It is also the duty of courts to protect and safeguard the properties of religious and charitable institutions from wrongful claims or misappropriation. 52. In Travancore Devaswom Board v. Mohanan Nair [2013 (3) KLT 132] a Division Bench of this Court noticed that in A.A. Gopalakrishnan [(2007) 7 SCC 482] the Apex Court emphasised that it is the duty of the courts to protect and safeguard the interest and properties of the religious and charitable institutions. The relevant principles under the Hindu law will show that the Deity is always treated similar to that of a minor and there are some points of similarity between a minor and a Hindu idol. The High Court therefore is the guardian of the Deity and apart from the jurisdiction under Section 103 of the Land Reforms Act, 1957 viz. the powers of revision, the High Court is having inherent jurisdiction and the doctrine of parents patriae will also apply in exercising the jurisdiction. Therefore, when a complaint has been raised by the Temple Advisory Committee, which was formed by the devotees of the Temple, about the loss of properties of the Temple itself, the truth of the same can be gone into by the High Court in these proceedings. 53. In Mrinalini Padhi v. Union of India [2018 SCC OnLine SC 667] - order dated 05.07.2018 in W.P.(C)No.649 of 2018 - the Apex Court noticed that the issue of difficulties faced by the visitors, exploitative practices, deficiencies in the management, maintenance of hygiene, proper utilisation of offerings and protection of assets may require consideration with regard to all Shrines throughout the India, irrespective of religion practiced in such shrines. It cannot be disputed that this aspect is covered by List III Item 28 of the Seventh Schedule to the Constitution of India and there is need to look into this aspect by the Central Government, apart from State Governments. Section 92 of the Code of Civil Procedure, 1908 permits a court also to issue direction for making a scheme or making an arrangement for any charitable or religious institution. Accordingly, the Apex Court directed that, if any devotee moves the jurisdictional District Judge throughout the India with any grievance on the above aspect, the District Judge may either himself/herself or by assigning the issue/ matter to any other court under his/her jurisdiction examine above aspects and if necessary send a report to the High Court. The High Court will consider these aspects in public interest, in accordance with law, and issue such judicial directions as becomes necessary having regard to individual fact situation. 54. In Nandakumar v. District Collector and others [2018 (2) KHC 58] a Division Bench of this Court noticed that the legal position has been made clear by the Apex Court as to the role to be played by the High Court in exercising the ‘parens patriae’ jurisdiction in Gopalakrishnan v. Cochin Devaswom Board [(2007) 7 SCC 482]. The said decision was referred to and relied on by a Division Bench of this Court in Travancore Devaswom Board v. Mohanan Nair [2013 (3) KLT 132]. In the said circumstances, the properties of the Devaswom, if at all encroached by anybody and if any assignment/conveyance has been effected without involvement of the Devaswom, securing ‘pattayam’ or such other deeds, the same cannot confer any right upon the parties concerned, unless the title so derived is clear in all respects. There cannot be any dispute that the remedy to retrieve such property belonging to the Devaswom is by resorting to the course stipulated in the Kerala Land 55. During the course of arguments, on a query made by this Court, the learned Standing Counsel for the Travancore Devaswom Board would submit that, but for the constructions undertaken by the 10th respondent, the aforesaid area in Pamba Manalppuram could have been used by the pilgrims during 'Kumbamasa Pooja' from 13.02.2022 to 17.02.2022. The learned Standing Counsel would point out that, on account of Covid restrictions, the total number of devotees permitted to have Darshan at Sabarimala on a single day is restricted to 15000 persons. Having considered the pleadings and materials on record and the submissions made by the learned counsel for the parties we find that when the land at Pamba Manalppuram is leased out to the Travancore Devaswom Board for the specific purpose of providing pilgrim facilities, the Board should not have permitted the 10 th respondent to put up such structures in connection with the programme Ramakatha. Admittedly, those constructions were going on from 24.01.2022. Now a major portion of Pamba Manalppuram is occupied by the temporary structures erected by the 10 th respondent, which is causing obstruction and inconvenience to the pilgrims proceeding to Sannidhanam through Pamba Manalppuram from 13.02.2022 onwards in connection with 'Kumbamasa Pooja'. No such construction can be permitted in Pamba Manalppuram and therefore such constructions will have to be removed forthwith. No such constructions can be utilised for conducting the programme 'Ramakatha' by the 10 th respondent from 19.02.2022 till 27.02.2022. Any permission granted by the Travancore Devaswom Board for undertaking such constructions, based on its decision referred to in Ext.R10(b) communication dated 31.12.2021, a copy of which is marked as Annexure R3(b) along with the statement filed on behalf of the 3rd respondent, is per se illegal. Therefore, respondents 2 to 7 and also the 9th respondent shall take necessary steps to ensure that the constructions made by the 10th respondent at Pamba Manalppuram, as evidenced by the photographs reproduced hereinbefore, are removed without any delay. 56. The learned Special Government Pleader (Forest) would submit that, the area where temporary constructions including erection of sheds have been made by the 10 th respondent for 'Ramakatha' comes within the boundary of the Periyar Tiger Reserve-West Division. This area was constituted as a Game Reserve/Wildlife Sanctuary in 1950 under the Travancore Forest Regulation, 1068 (1893). The adjoining area on the south is part of Konni Reserve Forest which comes under the Goodrickal Forest Range of Ranni Forest Division, which is an immensely rich biodiversity area. The subject matter land is part of Mount Plateau area which was declared as a Game Sanctuary/Wildlife Sanctuary along with two other areas in 1950. The Periyar Lake Reserve Forest area was declared as Game Sanctuary by name 'Periyar Wildlife Sanctuary Proper' and the Mount Plateau area, within which the subject matter area comes, was declared as Game Sanctuary by name 'Annex No.2 to the Wildlife Sanctuary (Mount Plateau)' and Rattendon Valley area was declared as Game Sanctuary by name 'Annex No.1 to the Wildlife Sanctuary (Rattendon Valley)'. The above three areas namely Periyar Wildlife Sanctuary Proper and Annex No.1 and Annex No.2 to the Wildlife Sanctuary constitute the Periyar Wildlife 57. The learned counsel for the 10 th respondent pointed out that the Pamba Ganapathi Temple opens during the entire year without any restrictions whatsoever and in such circumstances the activity as proposed by the 10th respondent cannot be termed as an objectionable activity. 58. The learned Special Government Pleader (Forest) would submit that during Mandala-Makaravilakku Festival there were obstructions to the movements of pilgrims at various places due to the presence of elephants on the route from Nilakkal to Pamba and other places. Nearly 15 occasions elephants have caused obstructions to the movement of pilgrims. The learned counsel for the 10 th respondent would point out that such incidents happened in between Nilakkal and Chalakkayam. The learned Special Government Pleader would submit that Chalakkayam is nearly 7 kms. away from Pamba. The learned Standing Counsel for Travancore Devaswom Board would submit that elephants are not normally seen at Pamba, during Mandala-Makaravilakku festival season and the presence of elephants are noticed near Pamba mainly during off season. 59. The fact that Pamba Manalppuram is within the boundary of Periyar Tiger Reserve is not in dispute. It is also not in dispute that Periyar Wildlife Sanctuary, which was notified in the year 1950 became Periyar Tiger Reserve as part of 'Project Tiger'. Subsequently, in the year 2007 and 2011 the core and buffer areas of the Tiger Reserve were notified. The specific stand taken by the 9th respondent is that the area where construction of sheds is undertaken by the 10 th respondent falls within Periyar Wildlife Sanctuary as well as Periyar Tiger Reserve and 10 Acres of forest land leased out to Travancore Devaswom Board is for the purpose of providing camping facility to the pilgrims visiting Sabarimala. 60. The learned counsel for the 10 th respondent would point out that there are constructions by the Travancore Devaswom Board in Pamba Manalppuram and as such the 10th respondent cannot be found fault with in putting up temporary structures for conducting the programme 'Ramakatha'. The learned Special Government Pleader (Forest) would point out that the earlier constructions in Pamba Manalppuram are either in the periphery of the sand bank adjoining to the pathway to Sannidhanam or away from the river, leaving out vacant space. The said vacant area is now used for putting up temporary structures by the 10 th respondent. Having considered aforesaid submissions made by the learned counsel, we find that, when the land at Pamba Manalppuram is leased out to Travancore Devaswom Board for providing pilgrim facilities, putting up temporary structures on that land by causing obstruction or inconvenience to the pilgrims, as seen from the photographs reproduced hereinbefore is legally 61. Insofar as the use of helipad at Nilakkal is concerned, along with the additional statement filed by the 3 rd respondent, a copy of Annexure R3(e) Minimum Safety Requirement for Temporary Helicopter Landing Area as directed by the Director General of Civil Aviation is placed on record. During the course of arguments, the specific stand taken by the learned Standing Counsel for the 3 rd respondent is that any use of helipad at Nilakkal will be strictly in conformity with the aforesaid requirements, with prior permission of the competent authorities and with prior intimation to the District administration. 62. The learned counsel for the 10 th respondent would submit that Anjaneya Auditorium in the premises of Pamba Ganapathi Temple is now occupied by the Police, till 18.02.2022 for Virtual-Q booking. In case the said auditorium is available from 19.02.2022, the 10th respondent may be permitted to conduct the programme 'Ramakatha' in that auditorium, subject to the conditions that may be imposed by the Travancore Devaswom Board and also the District administration. The learned counsel would submit that the 10 th respondent shall take necessary steps to ensure that the conduct of 'Ramakatha' in Anjaneya auditorium, if permitted by the Travancore Devaswom Board, is without causing any inconvenience whatsoever to the devotees coming to that temple and without causing any disturbance whatsoever to the daily rituals and ceremonies. The 10 th respondent shall also ensure that the conduct of the said programme at Anjaneya auditorium causes any disturbance to the wildlife. 63. The learned Standing Counsel for Travancore Devaswom Board would submit that, if any such request is received from the 10th respondent for conducting the programme 'Ramakatha' at Anjaneya auditorium, the Board shall consider the same and take an appropriate decision on that request in consultation with the District administration in view of the restrictions imposed in connection with Covid-19 pandemic. The aforesaid submission made by the learned Standing Counsel, on behalf of the 3rd respondent Travancore Devaswom Board, is recorded. 64. Considering the facts and circumstances borne out from the materials on record, we deem it appropriate to direct the Special Commissioner, Sabarimala to submit a report before this Court as to the measures that have to be taken to ensure that similar incidents are not repeated at Pamba- Manalppuram in future. The report of the Special Commissioner shall be placed on record within three weeks. The DBP is disposed of as above.
The Kerala High Court announced on Wednesday that courts have a duty to protect the property of religious and charitable groups from wrong claims or theft. Because of this, a group of two judges, Justice Anil K. Narendran and Justice P.G Ajithkumar, took back the permission given by the Travancore Devaswom Board. This permission had allowed a trust from Delhi to hold a nine-day 'Ramakatha' event in the Pamba area. This event was blocking part of the path pilgrims use to reach the Sabarimala temple. The court noted that often, people who are supposed to manage and protect temple property, sacred figures (deities), and Devaswom Boards have taken this property for themselves. They do this by making false claims of owning it, renting it, or claiming it through long-term use. This can only happen if the people in charge help, either by not doing anything or by actively working with them. The court called these actions "fences eating the crops," meaning those who should protect are instead causing harm, and said they must be dealt with strictly. The government, board members, trust members, and worshippers must all be watchful to stop anyone from taking or blocking this property. The court added again that it is their job to protect the property of religious and charity groups from wrong claims or theft. These events started because the Court began its own case (called a 'suo motu' case) about building projects in the Pamba area. A Malayalam newspaper, Mathrubhumi, had reported on these constructions. The newspaper article said that the Travancore Board had rented out the land to the Shri Nandkishore Bajoria Charitable Trust. This was for an event called "Ramkatha" led by Morari Bapu, who is a spiritual leader known for his teachings on 'Ramacharithamanasam'. The trust argued that the event had to be held at that specific spot because of its religious importance. The trust had asked for permission to use the area for tents, parking, broadcasting the event, and even a helipad at Nilakkal. They also offered the Board 7 lakh rupees as a donation, and had already paid 3 lakh rupees. After the Board gave its permission, the trust started building things in the area. Senior Government lawyer S. Rajmohan argued that the Pamba land was rented to the Board only to help pilgrims. He said it could not be used for anything else, like the Ramkatha event. The Court agreed with this argument after looking closely at two laws: the Travancore-Cochin Hindu Religious Institutions Act of 1950 and the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act of 1965. Also, the Court referred to a Supreme Court ruling from a case called A.A. Gopalakrishnan v. Cochin Devaswom Board. This ruling repeated that the property of sacred figures (deities), temples, and Devaswom Boards must be protected by the people who manage them, such as trustees, priests (archakas), and other staff (shebaits or employees). This ruling also stressed that courts have a duty to protect the interests and property of religious and charity groups. In addition, the judges explained that Hindu law treats a sacred figure (deity) in a way similar to how it treats a child (minor). Therefore, the Court decided that the High Court acts as the guardian of the sacred figure (deity). This means the Court can use its special power to protect those who cannot protect themselves (called 'parens patriae'), in addition to its powers under Section 103 of the Land Reforms Act. After looking at photos of the building work, the Court saw that temporary structures now covered a large part of Pamba-Manalppuram. These buildings were "causing obstruction and inconvenience" for pilgrims walking to Sannidhanam at Sabarimala for the Kumbamasa Pooja, which began on February 13. Because of this, the judges ordered that all these buildings be removed right away. They also told the Special Commissioner, Sabarimala, to give a report to the Court. This report should explain what steps will be taken to make sure similar problems do not happen again at Pamba Manalppuram.
On 03.02.2022, a news item appeared in Mathrubumi daily that the Travancore Devaswom Board has leased out Pamba-Triveni Manalppuram to a Trust for conducting programme by name 'Ramakatha', from 19.02.2022 till 27.02.2022. As per that news report, the Board has already issued orders in this regard. Under the initiative of the said Trust, Pamba-Triveni Manalppuram and surroundings are cleaned. Activities relating to erection of 'pantal' are going on. The parking area and helipad at Nilakkal are also leased out on depositing rent and necessary charges for supply of electricity and water. Nilakkal and Pamba are 'High Security Zone' and there is no clarity as to whether Police clearance has already been obtained for conducting the programme and use of 2. On 03.02.2022, Registry was directed to initiate suo motu proceedings based on the aforesaid news item and list the matter before the Devaswom Bench, on that day itself. A copy of the D.B.P. was ordered to be issued to the learned State Attorney, the learned Standing Counsel for the Travancore Devaswom Board and also to the learned Amicus Curiae for the Special Commissioner, Sabarimala. 3. On 04.02.2022, when this D.B.P. was taken up for consideration, the learned Standing Counsel for the Travancore Devaswom Board has filed a statement producing therewith Ext.R3(a) request dated 26.08.2021 made by Shri Nandkishore Bajoria Charitable Trust seeking permission to organise a 9 day programme by name 'Ramakatha' by Morari Bapu in Pamba from 09.10.2021 to 17.10.2021; Annexure R3(b) order dated 31.12.2021 of the Secretary of the Travancore Devaswom Board, whereby permission has been granted for conducting that programme, subject to the conditions stipulated therein, from 19.02.2022 to 27.02.2022; Ext.R3(c) communication dated 27.01.2022 of the District Medical Officer (Health), Pathanamthitta, addressed to the Managing Trustee of Shri Nandkishore Bajoria Charitable Trust, advising to conduct the programme online, since Pathanamthitta District is included in 'Category C', considering the total number of Covid cases; and Ext.R3(d) communication dated 28.01.2022 of the Executive Officer, Sabarimala, to the District Collector, Pathanamthitta, regarding the conduct of the aforesaid programme. 4. By the order dated 04.02.2022, the District Medical Officer (Health), Pathanamthitta, the Deputy Director, Periyar West Forest Division, Peerumedu, and Shri Nandkishore Bajoria Charitable Trust, represented by its Managing Trustee, were suo motu impleaded as additional respondents 8 to 10 in this D.B.P. The learned Senior Government Pleader took notice for respondents 1, 2, 5 and 6 and the learned Special Government Pleader (Forest) took notice for the additional 9 th respondent. The learned Standing Counsel for the Travancore Devaswom Board took notice for respondents 3, 4 and 7. Urgent notice through e-mail was ordered to the 10th respondent, returnable by 07.02.2022. 5. On 07.02.2022, the 10th respondent entered appearance through counsel and sought time to file counter affidavit. The learned Senior Government Pleader sought time to get instructions on the permission/clearance granted to the 10th respondent to conduct programme by name 'Ramakadha' in Pamba, from 19.02.2022 to 27.02.2022, and also for use of Helipad at Nilakkal. 6. On 10.02.2022, the Forest Range Officer, Pamba Range was suo motu impleaded as the additional 11th respondent. The learned Special Government Pleader (Forest) entered appearance for the additional 11th respondent. The 10th respondent filed a counter affidavit producing therewith Exts.R10(a) to R10(j) documents. The learned counsel for the 10th respondent submitted that said respondent has already sought permission for conducting the programme at Pamba, by submitting applications before the concerned authorities. The learned Senior Government Pleader, on instructions, submitted that the 6th respondent District Police Chief is yet to be informed about the conduct of such a programme at Pamba by the 10th respondent. The Station House Officer, Pamba Police Station, vide Ext.R10(e) letter dated 01.02.2022 has already informed the 10th respondent about the restrictions imposed by the District Administration in connection with Covid-19 pandemic. On Ext.R10(c) request made by the 10th respondent to provide Elephant Squad at Pamba, the Chief Wildlife Warden is awaiting the legal opinion from the learned Special 7. The learned Senior Government Pleader, on instructions from the Range Forest Officer, Pamba, pointed out that, the land at Pamba is leased out to the Travancore Devaswom Board for the specific purpose of pilgrim support, which cannot be used for any other purpose. The helipad at Nilakkal is under the control of the Travancore Devaswom Board. Neither the District Administration nor the District Police are informed about the use of that helipad in connection with the programme of the 10th respondent. By the order dated 10.02.2022, the learned Standing Counsel for the Travancore Devaswom Board was directed to get instructions on the use of helipad at Nilakkal in connection with the programme in question. The learned Senior Government Pleader was directed to file a statement, based on the instructions already received, by 11.02.2022, and to get instructions as to whether Pathanamthitta District still falls under 'C Category'. The learned counsel for the 10 th respondent submitted that the said respondent has already identified another helipad, in case there is any issues in using the helipad at Nilakkal, for want of clearance. 8. On 14.02.2022, the 5th respondent District Collector has filed a statement dated 10.02.2022. The additional 9 th respondent Deputy Director, Periyar West Forest Division, has also filed a statement dated 10.02.2022. The petitioner has filed a reply affidavit dated 14.02.2022. The learned Senior Government Pleader, the learned Special Government Pleader (Forest), the learned Standing Counsel for the Travancore Devaswom Board and also the learned counsel for the 10th respondent were heard. The learned Special Government Pleader (Forest) sought time to get further instructions from the 9th respondent. By the order dated 14.02.2022, the learned Standing Counsel for Travancore Devaswom Board was directed to make available for the perusal of this Court few photographs of the temporary structures put up by the 10 th respondent and the matter was ordered to be listed at 4.00 pm for further consideration. 9. On 14.02.2022, when this D.B.P. was taken up again at 4.00 p.m., the learned Special Government Pleader (Forest) made available for the perusal of this Court a copy of G.O.(Ms. )No.410/70/Agri dated 28.12.1970, leasing out 10 acres of forest land on the right side of the route from Pamba kadavu to the Sannidhanam to the Travancore Devaswom Board, subject to the terms and conditions stipulated therein. The learned Special Government Pleader and also the learned Standing Counsel for Travancore Devaswom Board made available for the perusal of this Court, few photographs of the temporary structures put up by the 10th respondent. The learned Special Government Pleader sought time to produce a typed copy of the Government Order dated 28.12.1970. While listing this D.B.P. to 15.02.2022 for further consideration, it was made clear that, it would be open to the learned Standing Counsel for the Travancore Devaswom Board to file additional affidavit of the 3rd respondent, if found necessary. 10. On 15.02.2022, when this D.B.P. came up for consideration, the learned Standing Counsel for the Travancore Devaswom Board filed an additional statement on behalf of the 3rd respondent, producing therewith Annexure R3(e) Civil Aviation Requirements (CAR), which deals with Minimum Safety Requirements for Temporary Helicopter Landing Area; and Annexure R3(f) communication dated 14.06.2019 of the Ministry of Civil Aviation, wherein it is stated that the Helicopter operators only need to inform the District authorities of their operations and are not required to take approval. The learned Special Government Pleader (Forest) made available for perusal of this Court few photographs of the temporary structures put up by the 10 th respondent at Pamba Manalppuram, with copy to the learned Standing Counsel for the Travancore Devaswom Board and also the learned counsel for the 10th respondent (through WhatsApp). 11. Going by the avernments in the counter affidavit filed on behalf of the 10 th respondent Shri Nandkishore Bajoria Charitable Trust, seeking permission to conduct a nine-day programme 'Ramakatha' at Pamba, from 19.02.2021 till 27.02.2022 by Morari Bapu, who is a spiritual Guru and exponent of 'Ramacharithamanasam', the Trust submitted Ext.R10(a) application dated 24.11.2021 before the Executive Officer, Pamba. It is stated in Ext.R10(a) application that the programme organised and sponsored by the Trust, with a limited audience of 40-60 people, will be aired live on Aastha TV channel. As per Ext.R10(a) application, the requirements for the programme are as follows; New Annadhana Mandapam - full building – kitchen dining and labour stay (50 to 100 staff); space for putting up 10 to 30 VIP tents in the space between new and old Annadhana Mandapam; 10,000 sq.ft. space at Pamba Manalppuram from Triveni Bridge to Foot Bridge for VIP tents and ‘Katha Pandal’; space at Pamba Manalppuram from Foot Bridge Aarattu Kadavu for temporary house for Morari Bapu; 10 rooms at Pamba; parking space for cars; Nilakkal helipad; water and electricity, permission to shoot the event and make it live in Aastha TV channel; recommendation to Forest and Health Departments; recommendation to Police and Fire Services; arrangement for Sabarimala darshan of Morari Bapu on 17.02.2022. The Trust sought permission to have access to the aforesaid space and facility from 21.01.2022. 12. In the counter affidavit, it is stated that, the 10th respondent decided to conduct 'Ramakatha' recitation by Morari Bapu at Pamba Manalppuram, as it was a long cherished wish of Morari Bapu to recite ‘Ramakatha’ at Pamba, as it is believed that Sree Rama and Lakshmana have conducted the ritual of 'bali' of their father at Pamba. With a request to conduct 'Ramakatha' recitation by Morari Bapu at Pamba Manalppuram, the 10th respondent approached the Travancore Devaswom Board, earlier in the year 2020. Thereafter, in the year 2021, the 10 th respondent submitted Exhibit R10(a) application before the Board seeking permission. Based on that application, the Board granted permission to the 10th respondent to conduct the programme 'Ramakatha' at Pamba Manalppuram, from 19.02.2022 till 27.02.2022, subject to the terms and conditions to be insisted by the Board, and in accordance with the directions issued by the officers in the Devaswom and Maramath wings and also the Superintendent of Police (Vigilance and Security). The decision taken by the Board was communicated to the Devaswom Commissioner, vide Ext.R10(b) communication of the Board, dated 31.12.2021. 13. The 10th respondent submitted Ext.R10(c) application dated 24.01.2022 before the Chief Wildlife Warden for providing Elephant Squad at Pamba, from 24.01.2022 to 28.02.2022, since they will be starting the cleaning and setting up temporary tents at Pamba Manalppuram from 24.01.2022 onwards. The 10th respondent submitted Ext.R10(d) application dated 15.01.2022 before the Assistant Engineer, Kerala Water Authority, Pamba, for temporary water connection. In paragraph 3 of the counter affidavit, it is stated that, based on the permission granted by the Travancore Devaswom Board, the 10th respondent approached all statutory authorities including Forest Department, Kerala State Electricity Board, Kerala water Authority, Police, Health Department and also Fire and Rescue Services. The 10 th respondent has also informed the District Administration about the conduct of 'Ramakatha' at Pamba Manalppuram, as VIPs including Constitutional dignitaries are expected to attend the 14. In paragraph 3 of the counter affidavit, it is stated that, to facilitate the permissions sought for using space at Pamba Manalppuram for putting up tents, use of helipad at Nilakkal, etc. the 10th respondent offered the Travancore Devaswom Board an amount of Rs.7 lakhs as offerings for annadhanam, out of which Rs.3 Lakhs has already been paid. The 10th respondent paid Rs.5 lakhs for using Pamba Manalppuram and Rs.3 lakhs for 10 rooms at Annadana Mandapam. An amount of Rs.3 lakhs has already been paid as caution and cleaning deposit. An amount of Rs.1,62,000/- has been paid to the Kerala State Electricity Board for getting temporary connection and for necessary installations. An amount of Rs.1 lakh has been paid to the Kerala Water Authority for temporary water connection. The 10 th respondent has already spent more than Rs.10 lakhs for cleaning the premises at Pamba. 15. In paragraph 3 of the counter affidavit, it is stated that, the 10th Respondent has also approached the Forest Department for service of the Elephant Squad as there were reports of the chance of elephants at Pamba during the programme. The Station House Officer, Pamba informed the 10th respondent, vide Ext.R10(e) communication dated 01.02.2022, about the restrictions in conducting the programme at Pamba, as Pathanamthitta district is included in Pathanamthitta has also informed the 10th respondent vide Ext.R10(f) communication dated 27.01.2022 that, for the aforesaid reason the programme at Pamba can be conducted only online. Now Pathanamthitta district is included in 'Category B' and as such participation of 20 persons in a programme is permissible. Though the 10th respondent approached the authorities, it is informed that permission can be considered only after the disposal of this D.B.P. 16. The document marked as Ext.R10(f) is a communication dated 25.01.2022 of the Regional Fire Officer, Fire and Rescue Services, Kottayam, on the application made by the 10th respondent to avail the services of Fire and Rescue Services at Pamba during the programme. The 10 th respondent has produced Ext.R10(h) series of photographs of 'Ramakatha' recitations by Morari Bapu at various places, in order to show that those programmes were attended by several eminent persons and Constitutional dignitaries. The document marked as Ext.R10(i) is a copy of the Government order dated 04.02.2022 modifying Covid protocols in Kerala. 17. In paragraph 4 of the counter affidavit, it is stated that, the 10th Respondent sought the permission of the Travancore Devaswom Board for the exclusive use of helipad at Nilakkal for Morari Bapu since he is not in a position to travel by road due to old age. The 10th respondent entrusted the operation of the Helicopter to Halo Airways Pvt. Ltd., which is the agency of Travancore Devaswom Board, which has permission to operate at Nilakkal. The agency which is a sub agency of M/s. Span Air Private Ltd. has got necessary permissions from the Director General of Civil Aviation to operate helicopters. The agency has complied with all the requirements of the latest rules and regulations of the Director General of Civil Aviation, which has licence and permissions to operate helicopter at Nilakkal. The document marked as Ext.R.10(j) is a copy of the Certificate of Airworthiness dated 13.01.2022 issued by the Director General of Civil Aviation to BELL 407 GX helicopter with Aircraft Registration VT-NAL. According to the 10th respondent, its attempt is to propagate ‘sanatana dharma’ and 'Ramacharithamanasam', which is totally in tune with the traditions and rituals that are being followed in Sabarimala Temple. The 10 th Respondent would undertake that the recital of 'Ramakatha' at Pamba will be conducted strictly in compliance with the rules and regulations insisted by the authorities. 18. In the statement filed on behalf of the 3 rd respondent Travancore Devaswom Board, it is stated that, on Annexure R3(a) application dated 26.08.2021 made by the 10th respondent to conduct 'Ramakatha' recitation by Morari Bapu at Pamba Manalppuram, the Travancore Devaswom Board obtained the report of the Devaswom Commissioner, and thereafter decided in principle to grant permission to the Trust to conduct the programme at Pamba Manalppuram from 19.02.2022 to 27.02.2022, subject to the terms and conditions prescribed by the Board and the instructions and guidelines prescribed by the Devaswom and Maramath wings and also the Superintendent of Police (Vigilance and Security). Annexure R3(b) communication dated 31.12.2021 required the 10th respondent to execute an agreement embodying the terms and conditions for the use. Pursuant to the permission granted by the Board, the 10th respondent has levelled and cleaned Pamba Manalppuram and started the construction of an open stage. Along with the statement, a copy of the communication dated 27.01.2022 of the District Medical Officer (Health), Pathanamthitta is produced as Annexure R3(c), whereby the 10th respondent was informed that, since Pathanamthitta district is in ‘Category C’ the programme at Pamba can be conducted only online. On 28.01.2022, the Executive Officer, Sabarimala has requested the District Collector, Pathanamthitta, vide Annexure R3(d) communication, the services and cooperation of all Departments for the programme. 19. In the statement, it is stated that, the 10th respondent has agreed to pay Rs.8 lakhs towards rent, Rs.6 lakhs as donation to Annadhanam Fund, sponsored annadhanam at Sabarimala on 18.02.2022, agreed to bear the charges at the rate of Rs.20,000/- per landing for using the helipad at Nilakkal, and provide food kits for one month to 450 tribal families in Nilakkal. The 10 th respondent has also remitted Rs.3 lakhs as security deposit. The 3 rd respondent Travancore Devaswom Board granted permission to the 10 th respondent, considering the fact that it is a spiritual and devotional programme conducted without affecting the sanctity of Sabarimala and Pamba and respecting the rituals and custom of the Temple. The permission is given to conduct the programme from 19.02.2022 to 27.02.2022, after ‘kumbamasa pooja’, without causing any inconvenience or difficulties to pilgrims. 20. In the statement filed by the 5th respondent District Collector, Pathanamthitta dated 10.02.2022, it is stated that, Pathanamthitta district was included in 'Category B' in view of the third wave of Covid-19 Pandemic. Now the district is included in 'Category B' and the maximum persons permitted for religious functions is 20 persons as per G.O. (Rt)No.109/2022/Disaster Management dated 04.02.2022. The area including Sabarimala and Pamba is in Periyar Tiger Reserve, under the Ministry of Environment, Forest and Climate Change. The organisers have to obtain requisite permission from the Forest and Wildlife Department, Irrigation Department and Revenue (Devaswom) Department. In such circumstances, the 5th respondent has issued Annexure R5(a) communication dated 03.02.2022 to the Travancore Devasom Board, informing the Board that the permission granted to 10 th respondent for conducting the 'Ramakatha' at Pamba Manalppuram may be cancelled. It was also informed to the Board that before giving consent for conducting such events, opinion of the Departments concerned and that of the Government may be obtained. No intimation regarding the use of Nilakkal helipad from 19.02.2022 to 27.02.2022 has been received in the office of the 5th respondent, till the date of filing of the statement, i.e., till 10.02.2022. 21. The stand taken in the counter affidavit filed by the 9th respondent Deputy Director, Periyar Tiger Reserve West Division is that, Pamba Manalppuram lies well within Periyar Tiger Reserve and the Travancore Devaswom Board has permitted the 10th respondent to use Pamba Manalppuram for an activity that is not related to Sabarimala pilgrimage. The Board granted such permission to the 10th respondent for using Pamba Manalppuram situated within the Periyar Tiger Reserve for rent, without any consent from the Kerala Forest Department or Cheif Wildlife Warden. The Kerala Forest Department has given 10 acres of land on lease to the Board at Pamba as per Government Order G.O (Ms.)No.410/70/Agri. dated 28.12.1970 and 8.5 acres of land diverted to the Board around Ganapathi Temple as per Government Order G.O. (Ms.)No.97/86 dated 22.10.1986 to arrange facilities for the Sabarimala pilgrims. In the above Government Order dated 28.12.1970 it is specifically mentioned as condition No. (vii) that, "if the land is put to any use other than for providing amenities to pilgrims, the lease will be terminated and the land will revert to Government”. According to the 9th respondent, the event, 'Ramakatha' proposed to be conducted at Pamba Manalppuram is an activity with no connection with the pilgrimage. Therefore the permission issued by the Travancore Devaswom Board to conduct the programme has to be set 22. in the statement filed by the 9th respondent, it is stated that Sabarimala is a heavily visited shrine located amidst the wet evergreen forest in the western part of Periyar Tiger Reserve. The Periyar Tiger Reserve is considered as a very important protected area for the tigers and other wildlife including elephants, gaurs, leopards, sloth bears, etc. and several other endemic and endangered flora and fauna. Periyar is one of the best protected tiger habitats in the country and it is the source population for the adjoining vast forest landscape of Ranni Forest Division and other Forest Divisions. Sabarimala Temple is located within the core habitat of the Periyar Tiger Reserve, which attracts millions of pilgrims annually with considerable impact on the environment of the sacred forests around Sabarimala (Poomkavanam). The main pilgrimage season is from mid-November to mid-January every year. The temple also opens during the first five days of every Malayalam month and on special occasions like Onam and Vishu. Over the years, with the increase in the number of pilgrims, large-scale development has taken place at Sabarimala and Pamba causing severe degradation of the sacred forests of Poomkavanam and the adverse impact on wildlife during these periods is substantial. The wildlife movement is very high during the days on which the temple is closed and substantial presence including that of tiger is being recorded in and around Pamba and Sannidhanam landscape via camera traps especially during the days on which the temple is closed. Therefore a program during the days on which the temple is closed in Pamba will affect the normal life of wildlife in and around Pamba. The movement of wild animals near the river may also cause man-animal conflict issues during the off-season days. Moreover, the sound and light arrangements as part of the programme inside the Periyar Tiger Reserve during the days on which the temple is closed may affect the movement of wildlife as well as cause disturbance to the wildlife in their natural habitat. Therefore the program which has no connection with the Sabrimala Temple ought to be cancelled. The 10th respondent has agreed to pay lakhs of rupees to the Travancore Devaswom Board as rent for using Pamba Manalppuram and it is learned that the Board has further rented out the Nialakkal base camp and helipad at Nilakkal also to the said respondent to discourse 'Ramakatha' which will also be against the security concerns in a High Security Zone like Sabarimala, besides being an unwarranted disturbance to the wildlife habitats in these areas. Further it is against the terms and conditions of the G.O(Ms.)No. 410/70/Agri. Dated 28.12.1970 and the Forest 23. According to the 9th respondent, the Travancore Devaswom Board in the present instance is trying to rent out Pamba Manalppuram for financial gains. The Board has deliberately issued permission illegally for financial gains and they are trying to justify it on the basis of false and hypothetical arguments. Financial considerations of the Board have gained precedence over environmental considerations as well as religious sentiments. The activity of discourse of 'Ramakatha' in Pamba is not essential or integral part of the pilgrimage to Sabarimala or traditional religious activity at Sabarimala (either at Pamba or Sannidhanam or any other place connected with Sabarimala) and is only intended as an activity with commercial eye and with the intention of initially opening up Pamba Manalppuram space and thereafter other spaces in Sabarimala and Nilakkal for commercial exploitation. The grant of permission by the Board to conduct non-forest activities and activities prejudicial to wildlife inside a tiger reserve area without the permission of the Cheif Wildlife Warden and without permission under the Forest Conservation Act is illegal and liable to be set aside. The damage that may be caused to the wildlife and its habitat by such activity will be substantial and it will also cause adverse impact on the habitat of tigers in Periyar Tiger Reserve. Therefore, the order of the Board granting permission to the 10 th respodent is liable to be set aside. 24. The 10th respondent has filed reply affidavit to the statements filed by the 5th and 9th respondents. By Exhibit R5(a) communication dated 03.02.2022, the District Collector has required the Travancore Devaswom Board to cancel the permission granted to the 10th respondent for conducting 'Ramakatha' on the ground that Pathanamthitta District is included in ‘Category C’. But, since then Pathanamthitta District has been re-categorised and included in ‘Category B’, and as per the latest guidelines religious functions also can be conducted with attendance of 20 persons. In the affidavit filed before this Court, the 10th respondent has given an undertaking that the event will be conducted strictly adhering to the guidelines issued by the Government relating to Covid restrictions. Therefore, there is absolutely no issue in permitting the event of the 10th respondent scheduled to be held from 19.02.2022 to 27.02.2022. Moreover, two large religious conventions, viz., Maramon Convention and Cherukolpuzha Convention are permitted. 25. As far as the statement filed by the 9th respondent is concerned, the main objection taken is that the event cannot be conducted in Pamba as the land has been given to the Devaswom Board on lease by order G.O. (Ms.)No.410/70/Agri dated 28.12.1970 exclusively for providing amenities to pilgrims and since the event 'Ramakatha' proposed to be conducted in Pamba Manalppuram is an activity which has no connection with Sabarimala pilgrimage. It is further stated that the sound and light arrangement as part of the programme inside Periyar Tiger Reserve during the days when temple is closed will affect the movement of wildlife as well as it will cause disturbance to the wildlife in their natural habits. This statement has been filed by the officer of the Forest Department without knowing the connection of Pamba River and its Manalppuram with Ramayana. It is believed that during the Vanavasa of Lord Rama and Lakshmana, they met a girl called 'Neli' and she invited Lord Rama and Lakshmana to the Ashram of Mathanga Rishi and impressed with devout treatment that she had given to Lord Rama and Lakshmana, Lord Rama has given Neli 'moksha' and she became the Pamba River. It is believed that Sahyanuman and Sabari are the father and mother of Neli. In Ramayana it is stated that Lord Rama has met with Lord Hanuman at 'Rishimukhachalam' which is the Pamba Manalppuram. Lord Rama and Lakshmana have also performed the ritual of ‘bali' for his father and has taken a dip as part of this ritual at Pamba river which is called Triveni, and it is believed that taking a bath at Triveni Sangam after offering 'balidarppana' is a way to attain 'moksha'. It is in this background Morari Bapu had decided to recite 'Ramakatha’ at Pamba Manalppuram because of the connection Pamba and its banks have with Rama and Ramayanam. So, the event is aimed at increasing the divinity of divine Pamba Manalppuram which is directly connected with pilgrimage. Spreading the Sanadhana Dharma and its tenets including Ramacharithamanasam cannot be considered as a commercial activity. The recital of 'Ramakatha' at Pamba is not done on payment of any money. It is purely a religious affair with direct connection with the historical background of Pamba and its banks. So, in no way it can be said that the recital of 'Ramakatha’ has nothing to do with Sabarimala Pilgrimage. The recital of Vedas and other scriptures like ‘Ramacharithamanasam’ will increase divinity and it is in such background such recitals have regularly been done in temples. If the stand of the Forest Department is accepted, then the recital of any scriptures like Ramayana or Mahabharatha or chanting of manthras contained in Vedas cannot be done at Pamba Ganapathy Temple. In Pamba Temple deities of Lord Rama, Lord Sita and Lord Hanuman are there. On the day of Sree Rama Navami full day programme is conducted at Pamba Temple and during the Malayalam month of Karkkidakam, Ramayana recital is also a regular affair. If the stand of the Forest Department is accepted such practice are to be stopped as it has nothing to do with Sabarimala Pilgrimage, as stated by the Officer of the Forest. As stated earlier during the month of Karkkidakam several persons recite Ramayana at the temple and recital of 'Ramakatha' is an offering of Morari Bapu to Lord Rama, Sitha and Hanuman at Pamba. The permission was sought from the District authorities for conducting event as Morari Bapu is a widely followed religious and spiritual leader and large number of people may attend the programme. It was in such circumstances, the 10th respondent has approached the district authorities and undertook that the event will be conducted strictly in compliance with the Covid 26. In the additional statement filed by the 3 rd respondent, it is stated that, the Travancore Devaswom Board owns the helipad at Nilakkal. It was constructed by the High Power Committee constituted for the implementation of Sabarimala Master Plan and handed over to the Board. It is a temporary helipad being operated in terms of the minimum safety requirements and other site requirements prescribed by the Ministry of Civil Aviation, Government of India. The minimum safety requirements are prescribed for the purpose of smooth and efficient operation of helicopters, given their versatility and ability to land and take off from any terrain. As per Para-3.6 of Annexure-R3(e) Minimum Safety Requirements for Temporary Helicopter Landing Areas prescribed by the Director General of Civil Aviation, permission of the owner of the site shall be obtained, before it is used for helicopter operations and the district authorities notified in advance. Considering the fact that helicopter is meant to operate at very short notice even from unprepared surfaces, delay in the clearance process and the restrictions placed by district authorities negate the very benefit of using the versatility of the helicopter as it is intended to be used. Given the inherent advantage of helicopter versatility, the DGCA, had issued the CAR, apportioning the responsibility of safe helicopter operations from temporary helipads with the operator (who must merely notify the district authorities). As per Annexure- R3(f) communication given from the Ministry of Civil Aviation dated 14.06.2019, no approval is required from the district authorities for helicopter operations. The permission to use the helipad will be given by the Executive Engineer, Sabarimala Development Project, Travancore Devaswom Board, on getting request from the operator and paying the requisite fees. 27. Heard the learned Senior Government Pleader for respondents 1, 2, 5, 6 and 8, the learned Standing Counsel for Travancore Devaswom Board for respondents 3, 4 and 7, the learned Special Government Pleader (Forest) for additional respondents 9 and 11 and also the learned counsel for the 10 th 28. The learned counsel for the 10 th respondent would contend that the conduct of 'Ramakatha' recitation by Morari Bapu at Pamba Manalppuram is totally in tune with the traditions and rituals that are being followed in Sabarimala. On the strength of the permission granted by the Travancore Devaswom Board, as evidenced by Ext.R10(b) communication dated 31.12.2021, the 10th respondent is legally entitled to conduct the said programme from 19.02.2022 till 27.02.2022 subject to the terms and conditions to be insisted by the Board. On account of the restrictions imposed in connection with Covid-19 pandemic the programme will be conducted limiting the number of participants to 20. On the strength of the permission granted in Ext.R10(b) the 10 th respondent can put up temporary structures at Pamba Manalppuram. The learned Standing Counsel for Travancore Devaswom Board would submit that the Board granted permission to the 10 th respondent to conduct the programme 'Ramakatha' at Pamba Manalppuram, considering the fact that it is a spiritual and devotional programme conducted without affecting the sanctity of Sabarimala and Pamba and respecting the rituals and custom of the Temple. The permission is granted to conduct the said programme from 19.02.2022 to 27.02.2022, after 'Kumbamasa Pooja', without causing any inconvenience or difficulties to the pilgrims. 29. Per contra, the learned Senior Government Pleader and also the learned Special Government Pleader (Forest), would contend that the land at Pamba Manalppuram was leased out to Travancore Devaswom Board, vide Government Order dated 28.12.1970 for providing amenities to pilgrims. The event, namely, 'Ramakatha' proposed to be conducted at Pamba Manalppuram is an activity with no connection with the pilgrimage. They would also point out that the land around Pamba Ganapathy Temple was leased out to Travancore Devaswom Board for the specific purpose to arrange facilities for Sabarimala pilgrims. They would contend that the conduct of the 10th respondent in putting up structures for the programme 'Ramakatha' in Pamba Manalppuram is legally 30. Sabarimala Sree Dharma Sastha Temple, which is situated inside Periyar Tiger Reserve, is a prominent pilgrim centre in Kerala, where lacks of pilgrims trek the rugged terrains of Western Ghats to have darsan of Lord Ayyappa. Sabarimala Sree Dharma Sastha Temple and Malikappuram Temple come under the Travancore Devaswom Board. At Pamba Ganapathy Temple, which is a holy spot on the way from Pamba to Sannidanam is dedicated to Lord Ganesha, where the pilgrims offer prayer for safe trekking to Sannidanam. Pamba Ganapathy Temple also has subsidiary shrines dedicated to Nagarajavu, Goddess Parvati Devi, Adimoola Ganapati, Hanuman Swami, and Bhagvan Sree Rama. The main offering at Pamba Ganapathi Temple is coconut. The pilgrims trekking to Sannidanam carry an extra coconut to break it at Pamba Ganapathi Temple, before climbing the mountain. 31. 'Deva' means God and 'swom' means ownership in Sanskrit and the term 'Devaswom' denotes the property of God in common parlance. [See:Prayar Gopalakrishnan and another v. State of Kerala and others - 2018 (1) KHC 1950 enacted by the State Legislature makes provision for the administration, supervision and control of incorporated and unincorporated Devaswoms and of other Hindu Religious Endowments and Funds. As per sub-section (3) of Section 1 of the Act, substituted by the Kerala Adaptation of Laws Order, 1956, Part I of the Act shall extend to Travancore, Part II of the Act shall extend to Cochin and Part III of the Act shall extend to the whole of the State of Kerala, excluding the 33. Clause (a) of Section 2 of the Act defines the term ‘Board’ to mean the Travancore Devaswom Board constituted under Chapter II of the Act in accordance with the covenant. Clause (c) of Section 2 defines the term ‘incorporated Devaswoms’ to mean the Devaswoms mentioned in Schedule I, and ‘unincorporated Devaswoms’ to mean those Devaswoms including Hindu Religious Endowments whether in or outside Travancore which were under the management of the Ruler of Travancore and which have separate accounts of income and expenditure and are separately dealt with. Sabarimala Devaswom is an incorporated Devaswom mentioned in Schedule I of the Act, under Chengannur Group, Pathanamthitta Taluk. As per sub-clause (i) of clause (d) of Section 2, ‘person interested’ includes, in the case of temple, a person who is entitled to attend at or is in the habit of attending the performance of worship or service in the temple or who is entitled to partake or is in the habit of partaking in the benefit of the distribution of gifts thereat. 34. Chapter II of the Act deals with the Travancore Devaswom. Section 3 of the Act deals with vesting of administration in Board. As per Section 3, the administration of incorporated and unincorporated Devaswoms and of Hindu Religious Endowments and all their properties and funds as well as the fund constituted under the Devaswom Proclamation, 1097 M.E. and the surplus fund constituted under the Devaswom (Amendment) Proclamation, 1122 M.E. which were under the management of the Ruler of Travancore prior to the first day of July, 1949, except the Sree Padmanabhaswamy Temple, Sree Pandaravaka properties and all other properties and funds of the said temple, and the management of all institutions which were under the Devaswom Department shall vest in the Travancore Devaswom 35. Section 4 of the Act deals with constitution of the Travancore Devaswom Board. As per sub-section (2) of Section 4, the Board shall be a body corporate having perpetual succession and a common seal with power to hold and acquire properties for and on behalf of the incorporated and unincorporated Devaswoms and Hindu Religious Institutions and Endowments under the management of the Board. 36. Section 15 of the Act deals with vesting of jurisdiction in the Board. As per sub-section (1) of Section 15, subject to the provisions of Chapter III of Part I, all rights, authority and jurisdiction belonging to or exercised by the Ruler of Travancore prior to the first day of July, 1949, in respect of Devaswoms and Hindu Religious Endowments shall vest in and be exercised by the Board in accordance with the provisions of this Act. As per sub-section (2) of Section 15, the Board shall exercise all powers of direction, control and supervision over the incorporated and unincorporated Devaswoms and Hindu Religious Endowments under their 37. Section 15A of the Act, inserted by Act 5 of 2007, with effect from 12.04.2007, deals with duties of the Board. As per Section 15A, it shall be the duty of the Board to perform the following functions, namely, (i) to see that the regular traditional rites and ceremonies according to the practice prevalent in the religious institutions are performed promptly; (ii) to monitor whether the administrative officials and employees and also the employees connected with religious rites are functioning properly; (iii) to ensure proper maintenance and upliftment of the Hindu religious institutions; (iv) to establish and maintain proper facilities in the temples for the devotees. Section 16 of the Act deals with supervision and control by the Board. As per Section 16, the Board shall, subject to the provisions of Part I of the Act, exercise supervision and control over the acts and proceedings of all officers and servants of the Board and of the Devaswom 38. Section 24 of the Act deals with maintenance of Devaswoms, etc., out of Devaswom Fund. As per Section 24, the Board shall, out of the Devaswom Fund constituted under Section 25, maintain the Devaswoms mentioned in Schedule I [i.e. incorporated Devaswoms], keep in a state of good repair the temples, buildings, and other appurtenances thereto, administer the said Devaswoms in accordance with recognised usages, make contributions to other Devaswoms in or outside the State and meet the expenditure for the customary religious ceremonies and may provide for the educational uplift, social and cultural advancement and economic betterment of the Hindu community. 39. Section 27 of the Act deals with Devaswom properties. As per Section 27, immovable properties entered or classed in the revenue records as Devaswom Vaga or Devaswom Poramboke and such other Pandaravaga lands as are in the possession or enjoyment of the Devaswoms mentioned in Schedule I after the 30th Meenam, 1097 corresponding to the 12th April, 1922, shall be dealt with as Devaswom properties. The provisions of the Land Conservancy Act of 1091 (IV of 1091) shall be applicable to Devaswom lands as in the case of Government lands. 40. Section 31 of the Act deals with management of Devaswoms. As per Section 31, subject to the provisions of Part I and the rules made thereunder, the Board shall manage the properties and affairs of the Devaswoms, both incorporated, and unincorporated as heretofore, and arrange for the conduct of the daily worship and ceremonies and of the festivals in every temple according to its usage. 41. In view of the provisions under the Travancore- Cochin Hindu Religious Institutions Act referred to hereinbefore, conclusion is irresistible that, the administration of Sabarimala Devaswom, which is an incorporated Devaswom mentioned in Schedule I of the Act, and all its properties and funds shall vest in the Travancore Devaswom Board. The Board shall hold and acquire properties for and on behalf of Sabarimala Devaswom, under the management of the Board. Subject to the provisions of Chapter III of Part I, all rights, authority and jurisdiction belonging to or exercised by the Ruler of Travancore prior to the first day of July, 1949, in respect of the Sabarimala Devaswom shall vest in and be exercised by the Board in accordance with the provisions of this Act and the Board shall exercise all powers of direction, control and supervision over the Devaswom. 42. Under the provisions of the Act, the Board is duty bound to see that the regular traditional rites and ceremonies according to the practice prevalent in Sabarimala are performed promptly; to monitor whether the administrative officials and the employees, and also the employees connected with religious rites are functioning properly; and to establish and maintain proper facilities in Sabarimala for the devotees. The Board shall, out of the Devaswom Fund, maintain and administer Sabarimala Devaswom in accordance with recognised usages and meet the expenditure for the customary religious ceremonies. Subject to the provisions of Part I of the Act and the Rules made thereunder, the Board shall manage the properties and affairs of Sabarimala Devaswom and arrange for the conduct of the daily worship and ceremonies and of the festivals in Sabarimala according to the usage. 43. The Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 enacted by State Legislature provides for better provisions for the entry of all classes and sections of Hindus into places of public worship. Clause (b) of Section 2 of the Act defines ‘place of public worship’ to mean a place, by whatever name known or to whomsoever belonging, which is dedicated to, or for the benefit of, or is used generally by, Hindus or any section or class thereof, for the performance of any religious service or for offering prayers therein, and includes all lands and subsidiary shrines, mutts, devasthanams, namaskara mandapams and nalambalams, appurtenant or attached to any such place, and also any sacred tanks, wells, springs and water courses the waters of which are worshipped or are used for bathing or for worship, but does not include a ‘sreekoil’. 44. Section 3 of the Act provides that places of worship to be open to all sections and classes of Hindus. As per Section 3, notwithstanding anything to the contrary contained in any other law for the time being in force or any custom or usage or any instrument having effect by virtue of any such law or any decree or order of court, every place of public worship which is open to Hindus generally or to any section or class thereof, shall be open to all sections and classes of Hindus; and no Hindu of whatsoever section or class shall, in any manner, be prevented, obstructed or discouraged from entering such place of public worship, or from worshipping or offering prayers thereat, or performing any religious service therein, in the like manner and to the like extent as any other Hindu of whatsoever section or class may so enter, worship, pray or perform. As per the proviso to Section 3, in the case of a place of public worship which is a temple founded for the benefit of any religious denomination or section thereof, the provisions of this Section shall be subject to the right of that religious denomination or section, as the case may be, to manage its own affairs in matters of religion. 45. Section 4 of the Act deals with power to make regulations for the maintenance of order and decorum and the due performance of rites and ceremonies in places of public worship. As per sub-section (1) of Section 4, the trustee or any other person in charge of any place of public worship shall have power, subject to the control of the competent authority and any rules which may be made by that authority, to make regulations for the maintenance of order and decorum in the place of public worship and the due observance of the religious rites and ceremonies performed therein. As per the proviso to sub-section (1) of Section 4, no regulation made under this sub-section shall discriminate in any manner whatsoever, against any Hindu on the ground that he belongs to a particular section or class. As per sub-section (2) of Section 4, the competent authority referred to in sub-section (1) shall be, (i) in relation to a place of public worship situated in any area to which Part I of the Travancore-Cochin Hindu Religious Institutions Act, 1950, extends, the Travancore Devaswom Board; (ii) in relation to a place of public worship situated in any area to which Part II of the said Act extends, the Cochin Devaswom Board; and (iii) in relation to a place of public worship situated in any other area in the State of Kerala, the 46. In view of the provisions under Section 4 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act referred to hereinbefore, conclusion is irresistible that, the competent authority to make regulations for the maintenance of order and decorum and the due observance of the religious rites and ceremonies performed in a place of public worship situated in any area to which Part I of the Act of 1950 extends is the Travancore Devaswom Board. The competent authority in the case of a place of public worship situated in any area to which Part II of the Act of 1950 extends is the Cochin Devaswom Board. State Government is the competent authority in the case of a place of public worship situated in any other area in the State, i.e., an area to which Part I or Part II of the Act of 1950 has no application. Since Sabarimala is a place of public worship situated in an area to which Part I of the Act of 1950 extends, the competent authority to make regulations for the maintenance of order and decorum and the due observance of the religious rites and ceremonies performed in Sabarimala is the Travancore Devaswom Board. 47. As already noticed hereinbefore the 10th respondent Trust submitted Ext.R10(a) application dated 24.11.2021 before the Executive Officer, Pamba. It is stated in Ext.R10(a) application that the programme organised and sponsored by the Trust, with a limited audience of 40-60 people, will be aired live on Aastha TV channel. As per Ext.R10(a) application, the requirements for the programme are as follows; New Annadhana Mandapam - full building – kitchen dining and labour stay (50 to 100 staff); space for putting up 10 to 30 VIP tents in the space between new and old Annadhana Mandapam; 10,000 sq.ft. space at Pamba Manalppuram from Triveni Bridge to Foot Bridge for VIP tents and ‘Katha Pandal’; space at Pamba Manalppuram from Foot Bridge Aarattu Kadavu for temporary house for Morari Bapu; 10 rooms at Pamba; parking space for cars; Nilakkal helipad; water and electricity, permission to shoot the event and make it live in Aastha TV channel; recommendation to Forest and Health Departments; recommendation to Police and Fire Services; arrangement for Sabarimala darshan of Morari Bapu on 17.02.2022. The Trust sought permission to have access to the aforesaid space and facility from 21.01.2022. 48. The learned Special Government Pleader (Forest) has made available for the perusal of this Court few photographs to show the nature of constructions undertaken by the 10th respondent at Pamba Manalppuram for conducting the programme 'Ramakatha' from 19.02.2022 till 27.02.2022. Soft copy of the photographs has already been sent through WhatsApp on 15.02.2022 with copy to the learned Standing Counsel for Travancore Devaswom Board and also to the learned counsel for the 10th respondent. Few of those photographs are reproduced hereunder; 49. As evident from the aforesaid photographs, temporary structures have been put up at Pamba Manalppuram, which is leased out to the Travancore Devaswom Board, vide Government Order dated 28.12.1970 for providing pilgrim facilities. The construction of temporary structures were going on from 24.01.2022 onwards. As per Ext.R10(a), one of the requirements is to provide dining and labour stay for 50-100 staff, who are employed for putting up structures like VIP tents, 'Katha Pandal', etc. 50. On a query made by this Court, the learned counsel for the 10th respondent would submit that, about 50-60 employees were engaged daily from 24.01.2022 onwards, in connection with various activities including cleaning up of Pamba Manalppuram, in order to put up such VIP tents, Katha Pandal, etc. As evident from the photographs re-produced hereinbefore, considerable extent of Pamba Manalppuram is now being occupied by the 10 th respondent, with effect from 24.01.2022. After putting up such temporary structures, the entire area is fenced with tin-fence. 51. In A.A. Gopalakrishnan v. Cochin Devaswom Board [(2007) 7 SCC 482] a Three-Judge Bench of the Apex Court held that the properties of deities, temples and Devaswom Boards are required to be protected and safeguarded by their trustees/archakas/shebaits/employees. Instances are many where persons entrusted with the duty of managing and safeguarding the properties of temples, deities and Devaswom Boards have usurped and misappropriated such properties by setting up false claims of ownership or tenancy, or adverse possession. This is possible only with the passive or active collusion of the authorities concerned. Such acts of ‘fences eating the crops’ should be dealt with sternly. The Government, members or trustees of boards/trusts, and devotees should be vigilant to prevent any such usurpation or encroachment. It is also the duty of courts to protect and safeguard the properties of religious and charitable institutions from wrongful claims or misappropriation. 52. In Travancore Devaswom Board v. Mohanan Nair [2013 (3) KLT 132] a Division Bench of this Court noticed that in A.A. Gopalakrishnan [(2007) 7 SCC 482] the Apex Court emphasised that it is the duty of the courts to protect and safeguard the interest and properties of the religious and charitable institutions. The relevant principles under the Hindu law will show that the Deity is always treated similar to that of a minor and there are some points of similarity between a minor and a Hindu idol. The High Court therefore is the guardian of the Deity and apart from the jurisdiction under Section 103 of the Land Reforms Act, 1957 viz. the powers of revision, the High Court is having inherent jurisdiction and the doctrine of parents patriae will also apply in exercising the jurisdiction. Therefore, when a complaint has been raised by the Temple Advisory Committee, which was formed by the devotees of the Temple, about the loss of properties of the Temple itself, the truth of the same can be gone into by the High Court in these proceedings. 53. In Mrinalini Padhi v. Union of India [2018 SCC OnLine SC 667] - order dated 05.07.2018 in W.P. (C)No.649 of 2018 - the Apex Court noticed that the issue of difficulties faced by the visitors, exploitative practices, deficiencies in the management, maintenance of hygiene, proper utilisation of offerings and protection of assets may require consideration with regard to all Shrines throughout the India, irrespective of religion practiced in such shrines. It cannot be disputed that this aspect is covered by List III Item 28 of the Seventh Schedule to the Constitution of India and there is need to look into this aspect by the Central Government, apart from State Governments. Section 92 of the Code of Civil Procedure, 1908 permits a court also to issue direction for making a scheme or making an arrangement for any charitable or religious institution. Accordingly, the Apex Court directed that, if any devotee moves the jurisdictional District Judge throughout the India with any grievance on the above aspect, the District Judge may either himself/herself or by assigning the issue/ matter to any other court under his/her jurisdiction examine above aspects and if necessary send a report to the High Court. The High Court will consider these aspects in public interest, in accordance with law, and issue such judicial directions as becomes necessary having regard to individual fact situation. 54. In Nandakumar v. District Collector and others [2018 (2) KHC 58] a Division Bench of this Court noticed that the legal position has been made clear by the Apex Court as to the role to be played by the High Court in exercising the ‘parens patriae’ jurisdiction in Gopalakrishnan v. Cochin Devaswom Board [(2007) 7 SCC 482]. The said decision was referred to and relied on by a Division Bench of this Court in Travancore Devaswom Board v. Mohanan Nair [2013 (3) KLT 132]. In the said circumstances, the properties of the Devaswom, if at all encroached by anybody and if any assignment/conveyance has been effected without involvement of the Devaswom, securing ‘pattayam’ or such other deeds, the same cannot confer any right upon the parties concerned, unless the title so derived is clear in all respects. There cannot be any dispute that the remedy to retrieve such property belonging to the Devaswom is by resorting to the course stipulated in the Kerala Land 55. During the course of arguments, on a query made by this Court, the learned Standing Counsel for the Travancore Devaswom Board would submit that, but for the constructions undertaken by the 10th respondent, the aforesaid area in Pamba Manalppuram could have been used by the pilgrims during 'Kumbamasa Pooja' from 13.02.2022 to 17.02.2022. The learned Standing Counsel would point out that, on account of Covid restrictions, the total number of devotees permitted to have Darshan at Sabarimala on a single day is restricted to 15000 persons. Having considered the pleadings and materials on record and the submissions made by the learned counsel for the parties we find that when the land at Pamba Manalppuram is leased out to the Travancore Devaswom Board for the specific purpose of providing pilgrim facilities, the Board should not have permitted the 10 th respondent to put up such structures in connection with the programme Ramakatha. Admittedly, those constructions were going on from 24.01.2022. Now a major portion of Pamba Manalppuram is occupied by the temporary structures erected by the 10 th respondent, which is causing obstruction and inconvenience to the pilgrims proceeding to Sannidhanam through Pamba Manalppuram from 13.02.2022 onwards in connection with 'Kumbamasa Pooja'. No such construction can be permitted in Pamba Manalppuram and therefore such constructions will have to be removed forthwith. No such constructions can be utilised for conducting the programme 'Ramakatha' by the 10 th respondent from 19.02.2022 till 27.02.2022. Any permission granted by the Travancore Devaswom Board for undertaking such constructions, based on its decision referred to in Ext.R10(b) communication dated 31.12.2021, a copy of which is marked as Annexure R3(b) along with the statement filed on behalf of the 3rd respondent, is per se illegal. Therefore, respondents 2 to 7 and also the 9th respondent shall take necessary steps to ensure that the constructions made by the 10th respondent at Pamba Manalppuram, as evidenced by the photographs reproduced hereinbefore, are removed without any delay. 56. The learned Special Government Pleader (Forest) would submit that, the area where temporary constructions including erection of sheds have been made by the 10 th respondent for 'Ramakatha' comes within the boundary of the Periyar Tiger Reserve-West Division. This area was constituted as a Game Reserve/Wildlife Sanctuary in 1950 under the Travancore Forest Regulation, 1068 (1893). The adjoining area on the south is part of Konni Reserve Forest which comes under the Goodrickal Forest Range of Ranni Forest Division, which is an immensely rich biodiversity area. The subject matter land is part of Mount Plateau area which was declared as a Game Sanctuary/Wildlife Sanctuary along with two other areas in 1950. The Periyar Lake Reserve Forest area was declared as Game Sanctuary by name 'Periyar Wildlife Sanctuary Proper' and the Mount Plateau area, within which the subject matter area comes, was declared as Game Sanctuary by name 'Annex No.2 to the Wildlife Sanctuary (Mount Plateau)' and Rattendon Valley area was declared as Game Sanctuary by name 'Annex No.1 to the Wildlife Sanctuary (Rattendon Valley)'. The above three areas namely Periyar Wildlife Sanctuary Proper and Annex No.1 and Annex No.2 to the Wildlife Sanctuary constitute the Periyar Wildlife 57. The learned counsel for the 10 th respondent pointed out that the Pamba Ganapathi Temple opens during the entire year without any restrictions whatsoever and in such circumstances the activity as proposed by the 10th respondent cannot be termed as an objectionable activity. 58. The learned Special Government Pleader (Forest) would submit that during Mandala-Makaravilakku Festival there were obstructions to the movements of pilgrims at various places due to the presence of elephants on the route from Nilakkal to Pamba and other places. Nearly 15 occasions elephants have caused obstructions to the movement of pilgrims. The learned counsel for the 10 th respondent would point out that such incidents happened in between Nilakkal and Chalakkayam. The learned Special Government Pleader would submit that Chalakkayam is nearly 7 kms. away from Pamba. The learned Standing Counsel for Travancore Devaswom Board would submit that elephants are not normally seen at Pamba, during Mandala-Makaravilakku festival season and the presence of elephants are noticed near Pamba mainly during off season. 59. The fact that Pamba Manalppuram is within the boundary of Periyar Tiger Reserve is not in dispute. It is also not in dispute that Periyar Wildlife Sanctuary, which was notified in the year 1950 became Periyar Tiger Reserve as part of 'Project Tiger'. Subsequently, in the year 2007 and 2011 the core and buffer areas of the Tiger Reserve were notified. The specific stand taken by the 9th respondent is that the area where construction of sheds is undertaken by the 10 th respondent falls within Periyar Wildlife Sanctuary as well as Periyar Tiger Reserve and 10 Acres of forest land leased out to Travancore Devaswom Board is for the purpose of providing camping facility to the pilgrims visiting Sabarimala. 60. The learned counsel for the 10 th respondent would point out that there are constructions by the Travancore Devaswom Board in Pamba Manalppuram and as such the 10th respondent cannot be found fault with in putting up temporary structures for conducting the programme 'Ramakatha'. The learned Special Government Pleader (Forest) would point out that the earlier constructions in Pamba Manalppuram are either in the periphery of the sand bank adjoining to the pathway to Sannidhanam or away from the river, leaving out vacant space. The said vacant area is now used for putting up temporary structures by the 10 th respondent. Having considered aforesaid submissions made by the learned counsel, we find that, when the land at Pamba Manalppuram is leased out to Travancore Devaswom Board for providing pilgrim facilities, putting up temporary structures on that land by causing obstruction or inconvenience to the pilgrims, as seen from the photographs reproduced hereinbefore is legally 61. Insofar as the use of helipad at Nilakkal is concerned, along with the additional statement filed by the 3 rd respondent, a copy of Annexure R3(e) Minimum Safety Requirement for Temporary Helicopter Landing Area as directed by the Director General of Civil Aviation is placed on record. During the course of arguments, the specific stand taken by the learned Standing Counsel for the 3 rd respondent is that any use of helipad at Nilakkal will be strictly in conformity with the aforesaid requirements, with prior permission of the competent authorities and with prior intimation to the District administration. 62. The learned counsel for the 10 th respondent would submit that Anjaneya Auditorium in the premises of Pamba Ganapathi Temple is now occupied by the Police, till 18.02.2022 for Virtual-Q booking. In case the said auditorium is available from 19.02.2022, the 10th respondent may be permitted to conduct the programme 'Ramakatha' in that auditorium, subject to the conditions that may be imposed by the Travancore Devaswom Board and also the District administration. The learned counsel would submit that the 10 th respondent shall take necessary steps to ensure that the conduct of 'Ramakatha' in Anjaneya auditorium, if permitted by the Travancore Devaswom Board, is without causing any inconvenience whatsoever to the devotees coming to that temple and without causing any disturbance whatsoever to the daily rituals and ceremonies. The 10 th respondent shall also ensure that the conduct of the said programme at Anjaneya auditorium causes any disturbance to the wildlife. 63. The learned Standing Counsel for Travancore Devaswom Board would submit that, if any such request is received from the 10th respondent for conducting the programme 'Ramakatha' at Anjaneya auditorium, the Board shall consider the same and take an appropriate decision on that request in consultation with the District administration in view of the restrictions imposed in connection with Covid-19 pandemic. The aforesaid submission made by the learned Standing Counsel, on behalf of the 3rd respondent Travancore Devaswom Board, is recorded. 64. Considering the facts and circumstances borne out from the materials on record, we deem it appropriate to direct the Special Commissioner, Sabarimala to submit a report before this Court as to the measures that have to be taken to ensure that similar incidents are not repeated at Pamba- Manalppuram in future. The report of the Special Commissioner shall be placed on record within three weeks. The DBP is disposed of as above.
The Kerala High Court announced on Wednesday that courts have a duty to protect the property of religious and charitable groups from wrong claims or theft. Because of this, a group of two judges, Justice Anil K. Narendran and Justice P.G Ajithkumar, took back the permission given by the Travancore Devaswom Board. This permission had allowed a trust from Delhi to hold a nine-day 'Ramakatha' event in the Pamba area. This event was blocking part of the path pilgrims use to reach the Sabarimala temple. The court noted that often, people who are supposed to manage and protect temple property, sacred figures (deities), and Devaswom Boards have taken this property for themselves. They do this by making false claims of owning it, renting it, or claiming it through long-term use. This can only happen if the people in charge help, either by not doing anything or by actively working with them. The court called these actions "fences eating the crops," meaning those who should protect are instead causing harm, and said they must be dealt with strictly. The government, board members, trust members, and worshippers must all be watchful to stop anyone from taking or blocking this property. The court added again that it is their job to protect the property of religious and charity groups from wrong claims or theft. These events started because the Court began its own case (called a 'suo motu' case) about building projects in the Pamba area. A Malayalam newspaper, Mathrubhumi, had reported on these constructions. The newspaper article said that the Travancore Board had rented out the land to the Shri Nandkishore Bajoria Charitable Trust. This was for an event called "Ramkatha" led by Morari Bapu, who is a spiritual leader known for his teachings on 'Ramacharithamanasam'. The trust argued that the event had to be held at that specific spot because of its religious importance. The trust had asked for permission to use the area for tents, parking, broadcasting the event, and even a helipad at Nilakkal. They also offered the Board 7 lakh rupees as a donation, and had already paid 3 lakh rupees. After the Board gave its permission, the trust started building things in the area. Senior Government lawyer S. Rajmohan argued that the Pamba land was rented to the Board only to help pilgrims. He said it could not be used for anything else, like the Ramkatha event. The Court agreed with this argument after looking closely at two laws: the Travancore-Cochin Hindu Religious Institutions Act of 1950 and the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act of 1965. Also, the Court referred to a Supreme Court ruling from a case called A.A. Gopalakrishnan v. Cochin Devaswom Board. This ruling repeated that the property of sacred figures (deities), temples, and Devaswom Boards must be protected by the people who manage them, such as trustees, priests (archakas), and other staff (shebaits or employees). This ruling also stressed that courts have a duty to protect the interests and property of religious and charity groups. In addition, the judges explained that Hindu law treats a sacred figure (deity) in a way similar to how it treats a child (minor). Therefore, the Court decided that the High Court acts as the guardian of the sacred figure (deity). This means the Court can use its special power to protect those who cannot protect themselves (called 'parens patriae'), in addition to its powers under Section 103 of the Land Reforms Act. After looking at photos of the building work, the Court saw that temporary structures now covered a large part of Pamba-Manalppuram. These buildings were "causing obstruction and inconvenience" for pilgrims walking to Sannidhanam at Sabarimala for the Kumbamasa Pooja, which began on February 13. Because of this, the judges ordered that all these buildings be removed right away. They also told the Special Commissioner, Sabarimala, to give a report to the Court. This report should explain what steps will be taken to make sure similar problems do not happen again at Pamba Manalppuram.
0.998956
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2. This appeal is directed against the order of the Division Bench of the High Court of Punjab and Haryana at Chandigarh challenging the order dated 22.02.2007 passed in CWP No. 20630 of 2006 in Suman Lata and Ors. vs. State of Haryana and Ors. 3. The appellants herein were impleaded as respondents before the High Court as the outcome of the result of the said writ petition was likely to affect their service career. Respondent nos. 1 to 3 herein, namely, The State of Haryana, Director, School Education, Haryana and Haryana Staff Selection the private respondents in this appeal were writ petitioners before the High Court and some of the respondents herein are interveners. For the sake of convenience, the parties are referred to in their respective ranking before the 4. The dispute draws its genesis from the advertisement No.6/2006, dated 20.07.2006 (Annexure-P8) which was issued by the Haryana State Staff Selection Commission (for short, ‘Commission’) inviting applications to fill up 816 posts of Arts and Crafts teachers in the State of Haryana. The eligibility criteria for the same amongst others was as under: “(i) Matric from Haryana School Education Board or an equivalent qualification recognized by the Haryana School (ii) Two year Diploma in Art and Craft examination conducted by the Haryana Industrial Training Department or an equivalent qualification recognized by the Haryana (iii) Knowledge of Hindi upto Matric Standard.” 5. The case of the petitioners is that they passed their matriculation with the subject of Arts and Crafts/Drawing or they have passed the subject of Arts and Crafts/Drawing in their matriculation as additional subject. All the petitioners passed their two-year diploma in Art and Craft from the Kurukshetra University. The petitioners, on the basis of their qualifications, applied for the aforesaid post to the Commission. Their applications were not entertained by the Commission for the reason that they had passed their two-year diploma in Art and Craft from Kurukshetra University which is not recognized as equivalent qualification by the Haryana Education Department, which led to the filing of the writ petitions in the High Court. 6. On 12.12.2006, the Director of School Education Haryana, Chandigarh, addressed a letter to all the District Education Officers/District Elementary Education Officers in which it was informed that diploma in Art and Craft conducted by the Director, Industrial Training and Vocational Education, Haryana, is the only recognized course in the State of Haryana. This letter further stated that the diploma/certificates in Art and Craft from the Kurukshetra University are not recognized for the purpose of appointment for Arts and Crafts Teacher in the State of Haryana. The petitioners have also challenged the validity of this letter in the writ petitions before the High Court. 7. Respondents no.1 to 3 filed objections opposing the writ petition. It was contended that the diploma in Art and Craft is given by the Industrial Training and Vocational Education Department, Haryana, to the students who attend regular class room teaching. Most of the subjects are practical subjects and their studies cannot be possible through distance education. The diploma granted by the Kurukshetra University in Art and Craft through distance education is not a teacher training course. Therefore, it cannot be equated with the diploma given through regular class room studies. Moreover, the said diploma is only for the purpose of self-employment and the same is not recognized for the purpose of teacher training course by the Education Department as well as by the Department of Industrial Training and Vocational 8. The private respondents in the writ petitions have also taken similar contentions and sought for dismissal of the writ petitions. The High Court, on consideration of the contentions of the learned counsel for the parties and on perusal of the materials placed on record, allowed the writ petitions. The High Court held that the petitioners have a legal right to be considered for the post of Arts and Crafts teachers with the strength of the diploma secured by them from 9. Learned counsel for the appellants herein (private respondents in the writ petitions) submitted that the diploma in Art and Craft granted by the Kurukshetra University is not equivalent to the diploma in Art and Craft given by the Industrial Training and Vocational Education Department, Haryana. It is not recognised by the Haryana Education Department. The diploma in Art and Craft by the Industrial Training and Vocational Education Department, Haryana, is given to the students who attend regular class room teaching. Most of the subjects are practical subjects and their studies cannot be possible through distance education. The diploma in Art and Craft granted by the said University is only for enhancing academic qualification. In this connection, learned counsel has drawn our attention to Annexures R-1 to R-3 enclosed along with the counter affidavit filed by the second respondent. It is argued that the question is not whether diploma in Art and Craft by the Kurukshetra University through distance education is invalid or illegal. Rather, the question is whether the said diploma by the Kurukshetra University is an ‘equivalent qualification’ to the diploma in Art and Craft examination conducted by the Haryana Industrial Training Department. It was also contended that ‘equivalence’ is a technical matter and this Court cannot direct the authorities to recognize it as equivalent when the expert’s view is otherwise. 10. Learned counsel for the respondent-State of Haryana has supported the submissions advanced by the learned counsel for the appellants/private respondents in the writ petition. 11. On the other hand, learned counsel for the writ petitioners-respondents herein would submit that the Kurukshetra University was incorporated under the provisions of the Kurukshetra University Act, 1986 and that all the qualifications awarded through distance education by this University stand automatically recognized for the purpose of employment to the posts and services under the Central Government. The Government of Haryana has repeatedly confirmed the two-year diploma in Art and Craft course offered by the Kurukshetra University. In this connection, they have relied on the communications issued by the State Government and its Instrumentalities dated 02.11.1999, 27.05.2005 and 30.05.2005. He prays for dismissal of the appeal. 12. We have carefully considered the submissions of the learned counsels of the parties made at the Bar and perused the materials placed on record. 13. As noticed above, the advertisement dated 20.07.2006 was issued by the Commission inviting applications for filling up of 816 posts of Arts and Crafts teachers in the State of Haryana. One of the important eligibility criteria was a two-year diploma in Art and Craft Examination conducted by the Haryana Industrial Training Department or an equivalent qualification recognized by the Haryana Education Department. The writ petitioners are holders of two-year diploma in Art and Craft from the Kurukshetra University. Therefore, the question for consideration is whether the diploma in Art and Craft by Kurukshetra University through distance education is recognized by the Haryana Education Department as an equivalent qualification to the diploma in Art and Craft Examination conducted by the Haryana Industrial Training 14. The materials on record clearly suggest that the Art and Craft Course is a highly practical oriented course and the appointee teachers have to train the students in Art and Craft which is a practical subject. The diploma in Art and Craft is given by the Industrial Training and Vocational Education Department, Haryana, to the students who attend regular class room teaching. Most of the subjects are practical subjects and their study is not possible through distance education. The Kurukshetra University grants the diploma in Art and Craft through distance education. This diploma cannot be equated with the diploma given through regular class room studies. In fact, in a meeting convened by the Financial Commissioner and Principal Secretary, Industrial Training and Vocational Education Department on 27.11.2003, it was decided to ask the Kurukshetra University to discontinue the said course from the next academic sessions i.e. 2004-2005 as it was running through distance education and the same was not in the best interest of the students. The Kurukshetra University has issued a caution notice in various leading newspapers in which it was made clear that some institutions who had given misleading advertisement for Kurukshetra University course of Art and Craft as a teacher training course. It was also clarified that the diploma in Art and Craft from the Kurukshetra University does not guarantee any specific job. The Minutes of the Meeting held on 27.11.2003 under the Chairmanship of Financial Commissioner and Principal Secretary to the Government of Haryana makes this position very “Minutes of the meeting held on 27.11.2003 at 11 AM under the chairmanship of Financial Commissioner and Principal Secretary to Govt. regarding Art & Craft course started by Kurukshetra University, Kurukshetra from the session 2003-2004. 1. Director Industrial Training informed that Kurukshetra University, Kurukshetra has started a 2 Year Art & Craft Course through distance education from this year 2003-2004. The University did not take the permission from either the Education Department or 2. Mr. L.C. Gupta pointed out that the University can start correspondence courses at their own level and there was no need to seek the permission from Govt. of Haryana/Education Department. He further told that the public was informed that the course being conducted by them would not guarantee a job. 3. A two year Art & Craft Teachers Training Course is already being run by the Department of Industrial Training & Vocational Education, Haryana. By starting a course of a similar nature, Kurukshetra University, Kurukshetra has stepped into the domain of the Industrial Training & Vocational Education Department. It has further created a confusion in the mind of general public as both the above courses are similar and it may cause unrest in the youth who has taken admission in this course as it is not recognized. 4. The Art & Craft Teachers Training Course being conducted by IT & VE Department is a recognized Vocational Course whereas the course of Art & Craft started by Kurukshetra University, Kurukshetra is a course conducted through distance education and hence both these courses cannot be equated. It was decided that Kurukshetra University, Kurukshetra may be requested through the Education Department, Haryana to discontinue this course from the next Academic Session 2004-2005.” 15. The caution notice by the Kurukshetra University is as under: Some Institutions/Organisations have given advertisements in various newspapers/media and have invited Computer/Management/other Centres to get affiliation/franchises of Kurukshetra University for running different courses of the Directorate of Correspondence Courses. It is clarified that all these advertisements are illegal and in violation of Clause-4 of the terms and conditions of the Agreement for Service Providers which clearly states that “in no case the Second Party (Service Provider) shall be allowed to authorize any other agency/centre, other than the study centres run by it, to enroll students to any course of this University and any violation will lead to cancellation of this arrangement without any notice and no refund of any fee and security will be allowed”. Therefore, the persons entering into any such illegal arrangements will be doing so at their own risk and responsibility. Some institutions/parties have also given misleading advertisements for the Kurukshetra University Course of Diploma in Art & Craft as a teachers training course. It is also clarified that all DCC courses including Diploma in Art & Craft are Kurukshetra University approved courses and do not guarantee any specific job. Hence, the University will in no way be responsible for any such misleading advertisements. In case of any doubt and for further clarifications if any, please contact at phone 01744-238518. 16. The Director and Under Secretary to the Government of Haryana in his letter dated 24.11.2003 to the Higher Education Commissioner, had clearly stated that the diploma course in Art and Craft by the Kurukshetra University has not been given recognition by the Education Department. This letter is as Subject : Regarding Art & Craft Professional Diploma through Correspondence from Kurukshetra University The Kurukshetra University, Kurukshetra has started two years Art & Craft Professional Diploma Course through Correspondence Course. This Diploma Course has not been given recognition by Education Department and Industrial Training & Vocational Education 2. The Finance Commissioner and Secretary to Government of Haryana Industrial Training & Vocational Education Department has called a meeting on 27.11.2003 at 11 A.M. in Room No.335, IIIrd Floor, New Secretariate Sector-17, Chandigarh to consider the matter of recognition course being run through correspondence course by Kurukshetra University. You are requested to kindly attend this meeting. Director & Under Secretary to Govt. of Haryana 17. The following table manifests that both the courses are not equivalent 1. Regular Course having 2 Correspondence course theory papers and 8 practicals. having 2 theory papers and 6 practicals. 2. Admissions on the basis of No eligibility criteria merit i.e. Matric’s percentage only 10+2 is the with Drawing as one of the eligibility in any stream. and no age bar. 3. Reservation policy applicable. No reservation policy. 4. Limited seats i.e. 30 students No limited seats. consists of one unit. 5. Internal assessment of 160 No internal assessment. marks. 6. Regular practical classes in lab No regular practical a) Wood work; correspondence course. 18. It is also relevant to state here that Kurukshetra University itself has clarified that the diploma in Art and Craft started by it through correspondence is not meant for appointment to the post of Arts and Crafts Teachers. In fact, Kurukshetra University has never claimed that the aforementioned diploma is valid for appointment of Arts and Crafts Teachers. The Registrar of Kurukshetra University in a public notice dated 27.09.2004 has clarified that this degree is meant for enabling the students to become self-employed. None of the documents produced by the petitioners would indicate that the diploma in Art and Craft awarded by the Kurukshetra University is equivalent to the two- year diploma in Art and Craft Examination conducted by the Haryana Industrial Training Department. In its letter dated 24.12.2004, at Exhibit P-4, the Kurukshetra University has clearly stated that the University does not guarantee any specific job for any of the courses including the diploma in Art and Craft. 19. The documents, Exhibit P-2 to P-4, do not claim that the course in question has been recognized as equivalent to two-year Diploma in Art and Craft examination conducted by the Haryana Industrial Training Department or an equivalent qualification recognized by the Haryana Education Department. 20. We have already noticed that one of the eligibility criteria for appointment to the post of Arts and Crafts teacher as per the advertisement dated 20.07.2006 is a “two-year Diploma in Art and Craft examination conducted by the Haryana Industrial Training Department or an equivalent qualification recognized by the Haryana Education Department.” It was made clear by the Industrial Training and Vocational Educational Department, Haryana, that diploma in Art and Craft Course by the Kurukshetra University is conducted through distance education and that this course cannot be equated with two-year diploma in Art and Craft Course awarded by the Haryana Industrial Training Department. Recognition of the said Course by the State of Haryana, as held by the High Court, is entirely different from its equivalence. When the experts in the Education Department have held the diploma in Art and Craft by the Kurukshetra University is not equivalent to the two-year diploma in Art and Craft awarded by the Haryana Industrial Training Department, we are of the view that the High Court was not justified in equalizing them. 21. In Mohammad Shujat Ali & Ors. v. Union of India & Ors 1, it was held that the question regarding equivalence of educational qualifications is a technical question based on proper assessment and evaluation of the relevant academic standards and practical attainments of such qualifications. It was further held that where the decision of the Government is based on the recommendation of an expert body, then the Court, uninformed of relevant data and unaided by technical insights necessary for the purpose of determining equivalence, would not lightly disturb the decision of the Government unless it is based on extraneous or irrelevant considerations or actuated mala fides or is irrational and perverse or manifestly wrong. 22. In J. Ranga Swamy v. Government of Andhra Pradesh and Others, 2 this Court held that it is not for the court to consider the relevance of qualification prescribed for various posts. 23. In State of Rajasthan & Ors. v. Lata Arun, 3 this Court held that the prescribed eligibility qualification for admission to a course or for recruitment to or promotion in service are matters to be considered by the appropriate “13. From the ratio of the decisions noted above, it is clear that the prescribed eligibility qualification for admission to a course or for recruitment to or promotion in service are matters to be considered by the appropriate authority. It is not for courts to decide whether a particular educational qualification should or should not be accepted as equivalent to the qualification prescribed by the authority.” 24. In Guru Nanak Dev University v. Sanjay Kumar Katwal & Anr., 4 this Court has reiterated that equivalence is a technical academic matter. It cannot be implied or assumed. Any decision of the academic body of the university relating to equivalence should be by a specific order or resolution, duly published. Dealing specifically with whether a distance education course was equivalent to the degree of MA (English) of the appellant university therein, the Court held that no material had been produced before it to show that the distance education course had been recognized as such. 25. In Zahoor Ahmad Rather & Ors. v. Sheikh Imtiyaz Ahmad & Ors. 5, it was held that the State, as an employer, is entitled to prescribe qualifications as a condition of eligibility, after taking into consideration the nature of the job, the aptitude required for efficient discharge of duties, functionality of various qualifications, course content leading up to the acquisition of various qualifications, etc. Judicial review can neither expand the ambit of the prescribed qualifications nor decide the equivalence of the prescribed qualifications with any other given qualification. Equivalence of qualification is a matter for the State, as recruiting authority, to determine. 26. Having regard to the above, in our view, the High Court has erred in holding that the diploma/degree in Art and Craft given by the Kurukshetra University is equivalent to two-year Diploma in Art and Craft examination conducted by the Haryana Industrial Training Department or diploma in Art and Craft conducted by Director, Industrial Training and Vocational Education, 27. Resultantly, the appeal succeeds and it is accordingly allowed. Consequently, the Judgment and Order of the High Court in C.W.P. No.20630 of 2006 and connected matters, impugned herein, are set aside and the writ petitions are dismissed. Pending applications, if any, shall stand disposed of. There shall be no order as to costs.
The Supreme Court said that courts cannot use their power to review government actions to decide if one job qualification is equal to another. The court stated that deciding if qualifications are equal is a task for the government agency that hires people. Two judges on the Supreme Court, Justices S. Abdul Nazeer and Krishna Murari, overturned a High Court decision. The High Court had wrongly ruled that a diploma or degree in Art and Craft from Kurukshetra University was the same as a two-year diploma in Art and Craft offered by the Haryana Industrial Training Department or by the Director of Industrial Training and Vocational Education in Haryana. In this case, one of the requirements for the job was a two-year Diploma in Art and Craft from the Haryana Industrial Training Department or another equivalent qualification recognized by the Haryana Education Department. The people who filed the lawsuit argued that they had taken Art and Craft or Drawing as a subject in high school, either as a main subject or an extra one. The High Court agreed with them and allowed their lawsuits. When the case went to the Supreme Court on appeal, the court found that experts in the Education Department had already decided that the diploma from Kurukshetra University was not equal to the two-year diploma from the Haryana Industrial Training Department. The Supreme Court then considered several important rules for such situations: Deciding if educational qualifications are equal is a technical matter. It requires carefully looking at the school's standards and what students actually learn. When the government's decision on this is based on advice from experts, courts usually won't change that decision. They will only change it if the government acted for bad or unrelated reasons, or if its decision was clearly illogical or wrong. It is not the court's job to decide how relevant a qualification is for a certain position. Setting the required qualifications for joining a course, getting a job, or being promoted is up to the proper government authority. Whether qualifications are equal is a specialized academic issue. It cannot just be assumed or guessed. Any decision made by a university about equal qualifications must be a clear, written order or resolution that is officially announced. As an employer, the government has the right to set job qualifications. It does this by considering the type of job, the skills needed to do it well, how useful different qualifications are, and what those courses actually teach. Because of all these reasons, the Supreme Court accepted the appeal and overturned the High Court's ruling. The court repeated that courts cannot expand the types of qualifications allowed for a job, nor can they decide if one qualification is equal to another. This decision belongs to the government agency responsible for hiring. Therefore, in the Supreme Court's view, the High Court was wrong to claim that the diploma or degree in Art and Craft from Kurukshetra University was equal to the two-year diploma from the Haryana Industrial Training Department or the Director of Industrial Training and Vocational Education, Haryana.
2. This appeal is directed against the order of the Division Bench of the High Court of Punjab and Haryana at Chandigarh challenging the order dated 22.02.2007 passed in CWP No. 20630 of 2006 in Suman Lata and Ors. vs. State of Haryana and Ors. 3. The appellants herein were impleaded as respondents before the High Court as the outcome of the result of the said writ petition was likely to affect their service career. Respondent nos. 1 to 3 herein, namely, The State of Haryana, Director, School Education, Haryana and Haryana Staff Selection the private respondents in this appeal were writ petitioners before the High Court and some of the respondents herein are interveners. For the sake of convenience, the parties are referred to in their respective ranking before the 4. The dispute draws its genesis from the advertisement No.6/2006, dated 20.07.2006 (Annexure-P8) which was issued by the Haryana State Staff Selection Commission (for short, ‘Commission’) inviting applications to fill up 816 posts of Arts and Crafts teachers in the State of Haryana. The eligibility criteria for the same amongst others was as under: “(i) Matric from Haryana School Education Board or an equivalent qualification recognized by the Haryana School (ii) Two year Diploma in Art and Craft examination conducted by the Haryana Industrial Training Department or an equivalent qualification recognized by the Haryana (iii) Knowledge of Hindi upto Matric Standard.” 5. The case of the petitioners is that they passed their matriculation with the subject of Arts and Crafts/Drawing or they have passed the subject of Arts and Crafts/Drawing in their matriculation as additional subject. All the petitioners passed their two-year diploma in Art and Craft from the Kurukshetra University. The petitioners, on the basis of their qualifications, applied for the aforesaid post to the Commission. Their applications were not entertained by the Commission for the reason that they had passed their two-year diploma in Art and Craft from Kurukshetra University which is not recognized as equivalent qualification by the Haryana Education Department, which led to the filing of the writ petitions in the High Court. 6. On 12.12.2006, the Director of School Education Haryana, Chandigarh, addressed a letter to all the District Education Officers/District Elementary Education Officers in which it was informed that diploma in Art and Craft conducted by the Director, Industrial Training and Vocational Education, Haryana, is the only recognized course in the State of Haryana. This letter further stated that the diploma/certificates in Art and Craft from the Kurukshetra University are not recognized for the purpose of appointment for Arts and Crafts Teacher in the State of Haryana. The petitioners have also challenged the validity of this letter in the writ petitions before the High Court. 7. Respondents no.1 to 3 filed objections opposing the writ petition. It was contended that the diploma in Art and Craft is given by the Industrial Training and Vocational Education Department, Haryana, to the students who attend regular class room teaching. Most of the subjects are practical subjects and their studies cannot be possible through distance education. The diploma granted by the Kurukshetra University in Art and Craft through distance education is not a teacher training course. Therefore, it cannot be equated with the diploma given through regular class room studies. Moreover, the said diploma is only for the purpose of self-employment and the same is not recognized for the purpose of teacher training course by the Education Department as well as by the Department of Industrial Training and Vocational 8. The private respondents in the writ petitions have also taken similar contentions and sought for dismissal of the writ petitions. The High Court, on consideration of the contentions of the learned counsel for the parties and on perusal of the materials placed on record, allowed the writ petitions. The High Court held that the petitioners have a legal right to be considered for the post of Arts and Crafts teachers with the strength of the diploma secured by them from 9. Learned counsel for the appellants herein (private respondents in the writ petitions) submitted that the diploma in Art and Craft granted by the Kurukshetra University is not equivalent to the diploma in Art and Craft given by the Industrial Training and Vocational Education Department, Haryana. It is not recognised by the Haryana Education Department. The diploma in Art and Craft by the Industrial Training and Vocational Education Department, Haryana, is given to the students who attend regular class room teaching. Most of the subjects are practical subjects and their studies cannot be possible through distance education. The diploma in Art and Craft granted by the said University is only for enhancing academic qualification. In this connection, learned counsel has drawn our attention to Annexures R-1 to R-3 enclosed along with the counter affidavit filed by the second respondent. It is argued that the question is not whether diploma in Art and Craft by the Kurukshetra University through distance education is invalid or illegal. Rather, the question is whether the said diploma by the Kurukshetra University is an ‘equivalent qualification’ to the diploma in Art and Craft examination conducted by the Haryana Industrial Training Department. It was also contended that ‘equivalence’ is a technical matter and this Court cannot direct the authorities to recognize it as equivalent when the expert’s view is otherwise. 10. Learned counsel for the respondent-State of Haryana has supported the submissions advanced by the learned counsel for the appellants/private respondents in the writ petition. 11. On the other hand, learned counsel for the writ petitioners-respondents herein would submit that the Kurukshetra University was incorporated under the provisions of the Kurukshetra University Act, 1986 and that all the qualifications awarded through distance education by this University stand automatically recognized for the purpose of employment to the posts and services under the Central Government. The Government of Haryana has repeatedly confirmed the two-year diploma in Art and Craft course offered by the Kurukshetra University. In this connection, they have relied on the communications issued by the State Government and its Instrumentalities dated 02.11.1999, 27.05.2005 and 30.05.2005. He prays for dismissal of the appeal. 12. We have carefully considered the submissions of the learned counsels of the parties made at the Bar and perused the materials placed on record. 13. As noticed above, the advertisement dated 20.07.2006 was issued by the Commission inviting applications for filling up of 816 posts of Arts and Crafts teachers in the State of Haryana. One of the important eligibility criteria was a two-year diploma in Art and Craft Examination conducted by the Haryana Industrial Training Department or an equivalent qualification recognized by the Haryana Education Department. The writ petitioners are holders of two-year diploma in Art and Craft from the Kurukshetra University. Therefore, the question for consideration is whether the diploma in Art and Craft by Kurukshetra University through distance education is recognized by the Haryana Education Department as an equivalent qualification to the diploma in Art and Craft Examination conducted by the Haryana Industrial Training 14. The materials on record clearly suggest that the Art and Craft Course is a highly practical oriented course and the appointee teachers have to train the students in Art and Craft which is a practical subject. The diploma in Art and Craft is given by the Industrial Training and Vocational Education Department, Haryana, to the students who attend regular class room teaching. Most of the subjects are practical subjects and their study is not possible through distance education. The Kurukshetra University grants the diploma in Art and Craft through distance education. This diploma cannot be equated with the diploma given through regular class room studies. In fact, in a meeting convened by the Financial Commissioner and Principal Secretary, Industrial Training and Vocational Education Department on 27.11.2003, it was decided to ask the Kurukshetra University to discontinue the said course from the next academic sessions i.e. 2004-2005 as it was running through distance education and the same was not in the best interest of the students. The Kurukshetra University has issued a caution notice in various leading newspapers in which it was made clear that some institutions who had given misleading advertisement for Kurukshetra University course of Art and Craft as a teacher training course. It was also clarified that the diploma in Art and Craft from the Kurukshetra University does not guarantee any specific job. The Minutes of the Meeting held on 27.11.2003 under the Chairmanship of Financial Commissioner and Principal Secretary to the Government of Haryana makes this position very “Minutes of the meeting held on 27.11.2003 at 11 AM under the chairmanship of Financial Commissioner and Principal Secretary to Govt. regarding Art & Craft course started by Kurukshetra University, Kurukshetra from the session 2003-2004. 1. Director Industrial Training informed that Kurukshetra University, Kurukshetra has started a 2 Year Art & Craft Course through distance education from this year 2003-2004. The University did not take the permission from either the Education Department or 2. Mr. L.C. Gupta pointed out that the University can start correspondence courses at their own level and there was no need to seek the permission from Govt. of Haryana/Education Department. He further told that the public was informed that the course being conducted by them would not guarantee a job. 3. A two year Art & Craft Teachers Training Course is already being run by the Department of Industrial Training & Vocational Education, Haryana. By starting a course of a similar nature, Kurukshetra University, Kurukshetra has stepped into the domain of the Industrial Training & Vocational Education Department. It has further created a confusion in the mind of general public as both the above courses are similar and it may cause unrest in the youth who has taken admission in this course as it is not recognized. 4. The Art & Craft Teachers Training Course being conducted by IT & VE Department is a recognized Vocational Course whereas the course of Art & Craft started by Kurukshetra University, Kurukshetra is a course conducted through distance education and hence both these courses cannot be equated. It was decided that Kurukshetra University, Kurukshetra may be requested through the Education Department, Haryana to discontinue this course from the next Academic Session 2004-2005.” 15. The caution notice by the Kurukshetra University is as under: Some Institutions/Organisations have given advertisements in various newspapers/media and have invited Computer/Management/other Centres to get affiliation/franchises of Kurukshetra University for running different courses of the Directorate of Correspondence Courses. It is clarified that all these advertisements are illegal and in violation of Clause-4 of the terms and conditions of the Agreement for Service Providers which clearly states that “in no case the Second Party (Service Provider) shall be allowed to authorize any other agency/centre, other than the study centres run by it, to enroll students to any course of this University and any violation will lead to cancellation of this arrangement without any notice and no refund of any fee and security will be allowed”. Therefore, the persons entering into any such illegal arrangements will be doing so at their own risk and responsibility. Some institutions/parties have also given misleading advertisements for the Kurukshetra University Course of Diploma in Art & Craft as a teachers training course. It is also clarified that all DCC courses including Diploma in Art & Craft are Kurukshetra University approved courses and do not guarantee any specific job. Hence, the University will in no way be responsible for any such misleading advertisements. In case of any doubt and for further clarifications if any, please contact at phone 01744-238518. 16. The Director and Under Secretary to the Government of Haryana in his letter dated 24.11.2003 to the Higher Education Commissioner, had clearly stated that the diploma course in Art and Craft by the Kurukshetra University has not been given recognition by the Education Department. This letter is as Subject : Regarding Art & Craft Professional Diploma through Correspondence from Kurukshetra University The Kurukshetra University, Kurukshetra has started two years Art & Craft Professional Diploma Course through Correspondence Course. This Diploma Course has not been given recognition by Education Department and Industrial Training & Vocational Education 2. The Finance Commissioner and Secretary to Government of Haryana Industrial Training & Vocational Education Department has called a meeting on 27.11.2003 at 11 A.M. in Room No.335, IIIrd Floor, New Secretariate Sector-17, Chandigarh to consider the matter of recognition course being run through correspondence course by Kurukshetra University. You are requested to kindly attend this meeting. Director & Under Secretary to Govt. of Haryana 17. The following table manifests that both the courses are not equivalent 1. Regular Course having 2 Correspondence course theory papers and 8 practicals. having 2 theory papers and 6 practicals. 2. Admissions on the basis of No eligibility criteria merit i.e. Matric’s percentage only 10+2 is the with Drawing as one of the eligibility in any stream. and no age bar. 3. Reservation policy applicable. No reservation policy. 4. Limited seats i.e. 30 students No limited seats. consists of one unit. 5. Internal assessment of 160 No internal assessment. marks. 6. Regular practical classes in lab No regular practical a) Wood work; correspondence course. 18. It is also relevant to state here that Kurukshetra University itself has clarified that the diploma in Art and Craft started by it through correspondence is not meant for appointment to the post of Arts and Crafts Teachers. In fact, Kurukshetra University has never claimed that the aforementioned diploma is valid for appointment of Arts and Crafts Teachers. The Registrar of Kurukshetra University in a public notice dated 27.09.2004 has clarified that this degree is meant for enabling the students to become self-employed. None of the documents produced by the petitioners would indicate that the diploma in Art and Craft awarded by the Kurukshetra University is equivalent to the two- year diploma in Art and Craft Examination conducted by the Haryana Industrial Training Department. In its letter dated 24.12.2004, at Exhibit P-4, the Kurukshetra University has clearly stated that the University does not guarantee any specific job for any of the courses including the diploma in Art and Craft. 19. The documents, Exhibit P-2 to P-4, do not claim that the course in question has been recognized as equivalent to two-year Diploma in Art and Craft examination conducted by the Haryana Industrial Training Department or an equivalent qualification recognized by the Haryana Education Department. 20. We have already noticed that one of the eligibility criteria for appointment to the post of Arts and Crafts teacher as per the advertisement dated 20.07.2006 is a “two-year Diploma in Art and Craft examination conducted by the Haryana Industrial Training Department or an equivalent qualification recognized by the Haryana Education Department.” It was made clear by the Industrial Training and Vocational Educational Department, Haryana, that diploma in Art and Craft Course by the Kurukshetra University is conducted through distance education and that this course cannot be equated with two-year diploma in Art and Craft Course awarded by the Haryana Industrial Training Department. Recognition of the said Course by the State of Haryana, as held by the High Court, is entirely different from its equivalence. When the experts in the Education Department have held the diploma in Art and Craft by the Kurukshetra University is not equivalent to the two-year diploma in Art and Craft awarded by the Haryana Industrial Training Department, we are of the view that the High Court was not justified in equalizing them. 21. In Mohammad Shujat Ali & Ors. v. Union of India & Ors 1, it was held that the question regarding equivalence of educational qualifications is a technical question based on proper assessment and evaluation of the relevant academic standards and practical attainments of such qualifications. It was further held that where the decision of the Government is based on the recommendation of an expert body, then the Court, uninformed of relevant data and unaided by technical insights necessary for the purpose of determining equivalence, would not lightly disturb the decision of the Government unless it is based on extraneous or irrelevant considerations or actuated mala fides or is irrational and perverse or manifestly wrong. 22. In J. Ranga Swamy v. Government of Andhra Pradesh and Others, 2 this Court held that it is not for the court to consider the relevance of qualification prescribed for various posts. 23. In State of Rajasthan & Ors. v. Lata Arun, 3 this Court held that the prescribed eligibility qualification for admission to a course or for recruitment to or promotion in service are matters to be considered by the appropriate “13. From the ratio of the decisions noted above, it is clear that the prescribed eligibility qualification for admission to a course or for recruitment to or promotion in service are matters to be considered by the appropriate authority. It is not for courts to decide whether a particular educational qualification should or should not be accepted as equivalent to the qualification prescribed by the authority.” 24. In Guru Nanak Dev University v. Sanjay Kumar Katwal & Anr., 4 this Court has reiterated that equivalence is a technical academic matter. It cannot be implied or assumed. Any decision of the academic body of the university relating to equivalence should be by a specific order or resolution, duly published. Dealing specifically with whether a distance education course was equivalent to the degree of MA (English) of the appellant university therein, the Court held that no material had been produced before it to show that the distance education course had been recognized as such. 25. In Zahoor Ahmad Rather & Ors. v. Sheikh Imtiyaz Ahmad & Ors. 5, it was held that the State, as an employer, is entitled to prescribe qualifications as a condition of eligibility, after taking into consideration the nature of the job, the aptitude required for efficient discharge of duties, functionality of various qualifications, course content leading up to the acquisition of various qualifications, etc. Judicial review can neither expand the ambit of the prescribed qualifications nor decide the equivalence of the prescribed qualifications with any other given qualification. Equivalence of qualification is a matter for the State, as recruiting authority, to determine. 26. Having regard to the above, in our view, the High Court has erred in holding that the diploma/degree in Art and Craft given by the Kurukshetra University is equivalent to two-year Diploma in Art and Craft examination conducted by the Haryana Industrial Training Department or diploma in Art and Craft conducted by Director, Industrial Training and Vocational Education, 27. Resultantly, the appeal succeeds and it is accordingly allowed. Consequently, the Judgment and Order of the High Court in C.W.P. No.20630 of 2006 and connected matters, impugned herein, are set aside and the writ petitions are dismissed. Pending applications, if any, shall stand disposed of. There shall be no order as to costs.
The Supreme Court said that courts cannot use their power to review government actions to decide if one job qualification is equal to another. The court stated that deciding if qualifications are equal is a task for the government agency that hires people. Two judges on the Supreme Court, Justices S. Abdul Nazeer and Krishna Murari, overturned a High Court decision. The High Court had wrongly ruled that a diploma or degree in Art and Craft from Kurukshetra University was the same as a two-year diploma in Art and Craft offered by the Haryana Industrial Training Department or by the Director of Industrial Training and Vocational Education in Haryana. In this case, one of the requirements for the job was a two-year Diploma in Art and Craft from the Haryana Industrial Training Department or another equivalent qualification recognized by the Haryana Education Department. The people who filed the lawsuit argued that they had taken Art and Craft or Drawing as a subject in high school, either as a main subject or an extra one. The High Court agreed with them and allowed their lawsuits. When the case went to the Supreme Court on appeal, the court found that experts in the Education Department had already decided that the diploma from Kurukshetra University was not equal to the two-year diploma from the Haryana Industrial Training Department. The Supreme Court then considered several important rules for such situations: Deciding if educational qualifications are equal is a technical matter. It requires carefully looking at the school's standards and what students actually learn. When the government's decision on this is based on advice from experts, courts usually won't change that decision. They will only change it if the government acted for bad or unrelated reasons, or if its decision was clearly illogical or wrong. It is not the court's job to decide how relevant a qualification is for a certain position. Setting the required qualifications for joining a course, getting a job, or being promoted is up to the proper government authority. Whether qualifications are equal is a specialized academic issue. It cannot just be assumed or guessed. Any decision made by a university about equal qualifications must be a clear, written order or resolution that is officially announced. As an employer, the government has the right to set job qualifications. It does this by considering the type of job, the skills needed to do it well, how useful different qualifications are, and what those courses actually teach. Because of all these reasons, the Supreme Court accepted the appeal and overturned the High Court's ruling. The court repeated that courts cannot expand the types of qualifications allowed for a job, nor can they decide if one qualification is equal to another. This decision belongs to the government agency responsible for hiring. Therefore, in the Supreme Court's view, the High Court was wrong to claim that the diploma or degree in Art and Craft from Kurukshetra University was equal to the two-year diploma from the Haryana Industrial Training Department or the Director of Industrial Training and Vocational Education, Haryana.
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2017 in the learned Family Court, Agartala, West Tripura against the appellant for decree of divorce and for dissolution of their marriage mainly on the ground that the appellant by filing criminal proceeding treated cruelty with the respondent and also on some other grounds as mentioned in the petition for divorce. The appellant by filing written statement contested the matrimonial proceeding challenging the maintainability and also denying allegations of the respondent and also by stating that the appellant always ready and willing to reside with the respondent and she was treated with cruelty and was harassed in regard with maintenance matter and also the respondent deserted her. After trial, the learned Family Court, Agartala, West Tripura passed the judgment and decree dated 07.10.2021 in T.S.(Divorce)247 of 2017 granting decree of divorce in favour of the respondent against which the appeal is preferred. 2. The respondent as the petitioner under Clause (ia) of sub- section (1) of Section 13 of the Hindu Marriage Act, 1955 against the appellant for decree of divorce and dissolution of marriage of the parties and the said petition was registered in the learned Family court below as T.S.(Divorce)247 of 2017. 3. The respondent as the petitioner filed the said petition for decree of divorce stating inter alia that the marriage of the parties were solemnized on 08.08.1999 following the Hindu Rites and Customs at Agartala, West Tripura and the parties lived together at Agartala along with two sons of the respondent left by his first wife and they lived together happily and thereafter, the appellant became indifferent towards domestic works and could not adjust with the family members and started to behave roughly and rudely with the respondent and his sons and the appellant formed a habit to leave the house giving intimations to any one and the appellant left the matrimonial home permanently in September, 2007 and that the appellant filed application in 2008 under Section 125 of the Cr.P.C. for maintenance which was registered as Misc. Case No.27 of 2008 and the same was allowed by an order dated 17.06.2008 directing the respondent to pay Rs.2000/- per month w.e.f.01.06.2008 and that subsequently, the appellant filed Misc. Case No.286 of 2009 for enhancement of the amount of maintenance and the maintenance was enhanced by the order dated 03.11.2009 directing the respondent to pay maintenance @ Rs.4000/- per month w.e.f.01.11.2009 and that the present respondent preferred Revision petition in Criminal Revision No.94 of 2009 against the order dated 03.11.2009 passed by the learned Family Court, Agartala, West Tripura in Misc.Case No.286 of 2009 before the Hon’ble High Court and the case was disposed of by the judgment and order dated 31.07.2013 directing the present respondent to make payment to the appellant as per direction of the learned Family Court, Agartala and also stating inter alia that the present appellant lodged FIR against the respondent with Agartala Women P.S. and the Women P.S.Case No.01 of 2008 under Section 498A read with Section 34 of the I.P.C. was registered against the respondent and the respondent preferred Criminal Revision challenging the order dated 11.06.2009 passed by the learned Judicial Magistrate, 1st Class, Court No.5, Agartala in G.R. Case No.05 of 2008 wherein the learned Magistrate directed for framing of charge against the respondent under Section 498A/34 of the I.P.C. and the said High Court by the judgment and order dated 31.07.2013 set aside the order dated 11.06.2009 and the present respondent was discharged from the charge framed against him also further stating inter alia that the present respondent filed T.S.(Divorce)/FC/73/2004 before the learned Family Court below seeking dissolution of marriage of the parties by a decree of divorce on the ground of cruelty and the learned Family Court dismissed the petition for divorce holding inter alia that the present respondent failed to produce any concrete evidence in respect to cruelty and the matrimonial proceeding was disposed of on 01.07.2005 and that after the said order, the present appellant became desperate and violent and permanently left the matrimonial home in September, 2007 and the present appellant treated the respondent with cruelty and also stating that since after marriage by way of neglecting and refusing to take care of the children left by first wife of the respondent and the appellant harassed the respondent by filing vogues criminal case and also stating that long desertion of the respondent by the appellant since 2007 for almost 10 years indicates that the respondent has not only been subjected to cruelty but matrimonial tie between the parties has broken down and there is no chance of reunion and therefore, the respondent prayed for dissolution of marriage of the parties by a decree of divorce. 4. The appellant contested the said T.S.(Divorce)247 of 2017 by filing one written statement denying the averments of the respondent and challenging the maintainability of the proceeding and also stating inter alia that the marriage between the parties was solemnized on 07.07.1998 as per Hindu Rites and Customs and their marriage was registered with the marriage Registrar on 07.07.2006 and that the appellant was married by the respondent after death of his first wife who died leaving behind two sons and therefore, the appellant had been looking after the said two sons of the respondent and subsequently, the respondent started mixing with another woman namely Smt. Gita Debnath which was objected by the appellant and therefore, she was tortured both mentally and physically by the respondent and also stating that the respondent was residing along with the appellant and the said two sons in a rented house and subsequently, in September, 2007 the respondent left the rented house and shifted to another rented house along with his two sons and thereby the respondent deserted the appellant with a view to maintain relation with the said Smt. Gita Debnath and under compelling circumstances, the appellant lodged complaint with the Agartala Women P.S. being P.S. Case No.01 of 2008 under Section 498A read with Section 34 of the I.P.C. against the respondent and the said Smti. Gita Debnath was also added as co-accused in the said case after filing charge sheet by the Investigating Officer, the said case was registered as G.R. Case No.05 of 2008 and the said co-accused was discharged by the learned Trial Court by the order dated 20.02.2009 with observation that the said co- accused was not a relative of the respondent and the present respondent also prayed for discharge him by the order dated 11.06.2009 holding that the said case attracted by Section 498A of the I.P.C. and therefore, the Criminal Revision Petition No.60 of 2009 was preferred by the respondent before the Hon’ble High Court and the said petition was disposed of by the judgment and order dated 31.07.2013 setting aside the order dated 11.06.2009 passed by the learned Trial Court below in G.R. Case No.05 of 2008 and the present respondent was discharged accordingly and also stated that the present appellant was refused by the respondent, even to maintain her and therefore, she filed the case for maintenance and the present respondent by filing Criminal Revision Petition before the Hon’ble High Court made attempt to reduce the maintenance but the said court upheld the order of maintenance passed by the learned Family Court and also stating that the present respondent preferred T.S.(Divorce)/FC/73/2004 before the learned Family Court below seeking decree of divorce on the ground of cruelty against the appellant but the said matrimonial proceeding was dismissed by the learned Family Court holding that the respondent failed to produce any concrete evidence in respect of cruelty and thereby the said divorce proceeding was ended on 01.07.2005 and further stated that the present appellant filed Misc. Case No.384 of 2014 for alteration of mode of payment of maintenance which was disposed of on 08.07.2015 and the respondent filed Misc. Case No.12 of 2015 for alteration of quantum of maintenance which was rejected on 08.07.2015 and also stated that the present appellant was compelled to file Misc. Case No.332 of 2015 under Section 128 of Cr.P.C. and subsequently, also the appellant filed Misc.Case No.100 of 2016 and in terms of order of the learned Family Court below she could recover the arrear of maintenance from the respondent and also stating that the appellant was compelled to file Misc. Case No.417 of 2016 again for arrear of maintenance and subsequently, she filed Misc. Case No.256 of 2017 for arrear of maintenance and ultimately, the learned Family Court below passed order dated 31.01.2008 and in terms of such order the appellant is getting her maintenance amount through bank directly from the pension Account of the respondent and thereby she was harassed by the respondent like anything and also stated that the appellant was always ready and willing to live with the respondent though the respondent has been residing with Smti. Gita Debnath and also stated that at the instigation of the respondent, his sons lodged a complaint against the appellant and a criminal case was initiated against her and ultimately, after trial, she was acquitted and she has further stated that the respondent has deserted the appellant and treated cruelty with the appellant while the appellant did never treat the respondent with cruelty nor deserted him and as such, the said matrimonial proceeding instituted by the respondent was not maintainable. 5. After elaborate arguments on behalf of both sides, both the parties present in court have mutually consented to be away from each other in view of their domestic issues and prays for judicial separation for some period. As the parties are senior citizens and considering their case on special reasons and having humanitarian grounds not to precipitate the litigation and with a hope in future they will have better days this court is of the view that for granting judicial separation which would be appropriate instead of 6. Accordingly, this court grants the order of judicial separation as prayed by both the parties. For any other relief, if they are so desired, they are at liberty to take up the appropriate steps in accordance with law. With the above observation, the present appeal stands allowed. Order of the court below in Case No.T.S.(Divorce)247 of 2017 stands set aside.
The Tripura High Court recently allowed an older couple to legally separate, but not divorce. The court said they both agreed to live apart. It also mentioned that the court did not want to make their legal fight worse, especially since they are older. This decision came from two judges, Justice T. Amarnath Goud and Justice S.G. Chattopadhyay. They explained, "After a lot of detailed discussion from both sides, the husband and wife, who were both in court, agreed to live separately because of their home problems. They asked for a legal separation for some time. Since they are older people, and for kind and special reasons, we do not want to make their legal case worse. We hope they will have better days ahead. So, this court believes that giving them a legal separation is better than a divorce." The husband had started a divorce case in the Family Court against his wife. He asked the court to end their marriage. His main reason was that his wife was cruel to him by filing a criminal case against him. He also claimed she did not care about housework and could not get along with his family. He said she acted roughly and rudely towards him and his sons. The wife fought back in the divorce case. She also made her own claims that the husband was cruel and harassed her, especially about financial support. After the court hearing, the Family Court decided to grant the divorce to the husband. The wife then filed an appeal against this decision. The High Court canceled the divorce order. Instead, it allowed the couple to have a legal separation, meaning they are still married but can live apart.
2017 in the learned Family Court, Agartala, West Tripura against the appellant for decree of divorce and for dissolution of their marriage mainly on the ground that the appellant by filing criminal proceeding treated cruelty with the respondent and also on some other grounds as mentioned in the petition for divorce. The appellant by filing written statement contested the matrimonial proceeding challenging the maintainability and also denying allegations of the respondent and also by stating that the appellant always ready and willing to reside with the respondent and she was treated with cruelty and was harassed in regard with maintenance matter and also the respondent deserted her. After trial, the learned Family Court, Agartala, West Tripura passed the judgment and decree dated 07.10.2021 in T.S.(Divorce)247 of 2017 granting decree of divorce in favour of the respondent against which the appeal is preferred. 2. The respondent as the petitioner under Clause (ia) of sub- section (1) of Section 13 of the Hindu Marriage Act, 1955 against the appellant for decree of divorce and dissolution of marriage of the parties and the said petition was registered in the learned Family court below as T.S.(Divorce)247 of 2017. 3. The respondent as the petitioner filed the said petition for decree of divorce stating inter alia that the marriage of the parties were solemnized on 08.08.1999 following the Hindu Rites and Customs at Agartala, West Tripura and the parties lived together at Agartala along with two sons of the respondent left by his first wife and they lived together happily and thereafter, the appellant became indifferent towards domestic works and could not adjust with the family members and started to behave roughly and rudely with the respondent and his sons and the appellant formed a habit to leave the house giving intimations to any one and the appellant left the matrimonial home permanently in September, 2007 and that the appellant filed application in 2008 under Section 125 of the Cr.P.C. for maintenance which was registered as Misc. Case No.27 of 2008 and the same was allowed by an order dated 17.06.2008 directing the respondent to pay Rs.2000/- per month w.e.f.01.06.2008 and that subsequently, the appellant filed Misc. Case No.286 of 2009 for enhancement of the amount of maintenance and the maintenance was enhanced by the order dated 03.11.2009 directing the respondent to pay maintenance @ Rs.4000/- per month w.e.f.01.11.2009 and that the present respondent preferred Revision petition in Criminal Revision No.94 of 2009 against the order dated 03.11.2009 passed by the learned Family Court, Agartala, West Tripura in Misc.Case No.286 of 2009 before the Hon’ble High Court and the case was disposed of by the judgment and order dated 31.07.2013 directing the present respondent to make payment to the appellant as per direction of the learned Family Court, Agartala and also stating inter alia that the present appellant lodged FIR against the respondent with Agartala Women P.S. and the Women P.S.Case No.01 of 2008 under Section 498A read with Section 34 of the I.P.C. was registered against the respondent and the respondent preferred Criminal Revision challenging the order dated 11.06.2009 passed by the learned Judicial Magistrate, 1st Class, Court No.5, Agartala in G.R. Case No.05 of 2008 wherein the learned Magistrate directed for framing of charge against the respondent under Section 498A/34 of the I.P.C. and the said High Court by the judgment and order dated 31.07.2013 set aside the order dated 11.06.2009 and the present respondent was discharged from the charge framed against him also further stating inter alia that the present respondent filed T.S.(Divorce)/FC/73/2004 before the learned Family Court below seeking dissolution of marriage of the parties by a decree of divorce on the ground of cruelty and the learned Family Court dismissed the petition for divorce holding inter alia that the present respondent failed to produce any concrete evidence in respect to cruelty and the matrimonial proceeding was disposed of on 01.07.2005 and that after the said order, the present appellant became desperate and violent and permanently left the matrimonial home in September, 2007 and the present appellant treated the respondent with cruelty and also stating that since after marriage by way of neglecting and refusing to take care of the children left by first wife of the respondent and the appellant harassed the respondent by filing vogues criminal case and also stating that long desertion of the respondent by the appellant since 2007 for almost 10 years indicates that the respondent has not only been subjected to cruelty but matrimonial tie between the parties has broken down and there is no chance of reunion and therefore, the respondent prayed for dissolution of marriage of the parties by a decree of divorce. 4. The appellant contested the said T.S.(Divorce)247 of 2017 by filing one written statement denying the averments of the respondent and challenging the maintainability of the proceeding and also stating inter alia that the marriage between the parties was solemnized on 07.07.1998 as per Hindu Rites and Customs and their marriage was registered with the marriage Registrar on 07.07.2006 and that the appellant was married by the respondent after death of his first wife who died leaving behind two sons and therefore, the appellant had been looking after the said two sons of the respondent and subsequently, the respondent started mixing with another woman namely Smt. Gita Debnath which was objected by the appellant and therefore, she was tortured both mentally and physically by the respondent and also stating that the respondent was residing along with the appellant and the said two sons in a rented house and subsequently, in September, 2007 the respondent left the rented house and shifted to another rented house along with his two sons and thereby the respondent deserted the appellant with a view to maintain relation with the said Smt. Gita Debnath and under compelling circumstances, the appellant lodged complaint with the Agartala Women P.S. being P.S. Case No.01 of 2008 under Section 498A read with Section 34 of the I.P.C. against the respondent and the said Smti. Gita Debnath was also added as co-accused in the said case after filing charge sheet by the Investigating Officer, the said case was registered as G.R. Case No.05 of 2008 and the said co-accused was discharged by the learned Trial Court by the order dated 20.02.2009 with observation that the said co- accused was not a relative of the respondent and the present respondent also prayed for discharge him by the order dated 11.06.2009 holding that the said case attracted by Section 498A of the I.P.C. and therefore, the Criminal Revision Petition No.60 of 2009 was preferred by the respondent before the Hon’ble High Court and the said petition was disposed of by the judgment and order dated 31.07.2013 setting aside the order dated 11.06.2009 passed by the learned Trial Court below in G.R. Case No.05 of 2008 and the present respondent was discharged accordingly and also stated that the present appellant was refused by the respondent, even to maintain her and therefore, she filed the case for maintenance and the present respondent by filing Criminal Revision Petition before the Hon’ble High Court made attempt to reduce the maintenance but the said court upheld the order of maintenance passed by the learned Family Court and also stating that the present respondent preferred T.S.(Divorce)/FC/73/2004 before the learned Family Court below seeking decree of divorce on the ground of cruelty against the appellant but the said matrimonial proceeding was dismissed by the learned Family Court holding that the respondent failed to produce any concrete evidence in respect of cruelty and thereby the said divorce proceeding was ended on 01.07.2005 and further stated that the present appellant filed Misc. Case No.384 of 2014 for alteration of mode of payment of maintenance which was disposed of on 08.07.2015 and the respondent filed Misc. Case No.12 of 2015 for alteration of quantum of maintenance which was rejected on 08.07.2015 and also stated that the present appellant was compelled to file Misc. Case No.332 of 2015 under Section 128 of Cr.P.C. and subsequently, also the appellant filed Misc.Case No.100 of 2016 and in terms of order of the learned Family Court below she could recover the arrear of maintenance from the respondent and also stating that the appellant was compelled to file Misc. Case No.417 of 2016 again for arrear of maintenance and subsequently, she filed Misc. Case No.256 of 2017 for arrear of maintenance and ultimately, the learned Family Court below passed order dated 31.01.2008 and in terms of such order the appellant is getting her maintenance amount through bank directly from the pension Account of the respondent and thereby she was harassed by the respondent like anything and also stated that the appellant was always ready and willing to live with the respondent though the respondent has been residing with Smti. Gita Debnath and also stated that at the instigation of the respondent, his sons lodged a complaint against the appellant and a criminal case was initiated against her and ultimately, after trial, she was acquitted and she has further stated that the respondent has deserted the appellant and treated cruelty with the appellant while the appellant did never treat the respondent with cruelty nor deserted him and as such, the said matrimonial proceeding instituted by the respondent was not maintainable. 5. After elaborate arguments on behalf of both sides, both the parties present in court have mutually consented to be away from each other in view of their domestic issues and prays for judicial separation for some period. As the parties are senior citizens and considering their case on special reasons and having humanitarian grounds not to precipitate the litigation and with a hope in future they will have better days this court is of the view that for granting judicial separation which would be appropriate instead of 6. Accordingly, this court grants the order of judicial separation as prayed by both the parties. For any other relief, if they are so desired, they are at liberty to take up the appropriate steps in accordance with law. With the above observation, the present appeal stands allowed. Order of the court below in Case No.T.S.(Divorce)247 of 2017 stands set aside.
The Tripura High Court recently allowed an older couple to legally separate, but not divorce. The court said they both agreed to live apart. It also mentioned that the court did not want to make their legal fight worse, especially since they are older. This decision came from two judges, Justice T. Amarnath Goud and Justice S.G. Chattopadhyay. They explained, "After a lot of detailed discussion from both sides, the husband and wife, who were both in court, agreed to live separately because of their home problems. They asked for a legal separation for some time. Since they are older people, and for kind and special reasons, we do not want to make their legal case worse. We hope they will have better days ahead. So, this court believes that giving them a legal separation is better than a divorce." The husband had started a divorce case in the Family Court against his wife. He asked the court to end their marriage. His main reason was that his wife was cruel to him by filing a criminal case against him. He also claimed she did not care about housework and could not get along with his family. He said she acted roughly and rudely towards him and his sons. The wife fought back in the divorce case. She also made her own claims that the husband was cruel and harassed her, especially about financial support. After the court hearing, the Family Court decided to grant the divorce to the husband. The wife then filed an appeal against this decision. The High Court canceled the divorce order. Instead, it allowed the couple to have a legal separation, meaning they are still married but can live apart.
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This is an application to condone the delay of 1062 days in preferring the 2. We have heard Sri. Ramesh Babu, the learned senior counsel appearing for the petitioners as instructed by C.Muralikrishnan, the learned counsel and Sri. Praveen K.Joy, the learned counsel appearing for the 3. This litigation has a long drawn and chequered history. We are of the view that it would be appropriate to detail the sequence of events before assessing whether the applicant has made out a sufficient cause for condoning the delay of over 1000 days. a) The respondent herein is the landlord of a multistoried building that was leased out to the 1st applicant, a Nationalised Bank. b) In the year 2009, R.C.P.No.34/2009 was filed by the respondent seeking fixation of fair rent under Section 5 (1) of the Kerala Buildings (Lease and Rent Control) Act, 1965. By order dated 6.12.2012, the Rent Control Court after evaluating the facts and circumstances, fixed the fair rent at Rs 40/ per square feet. c) The above order was challenged in appeal and by judgment dated 18.2.2014, the order passed by the Rent Control Court was confirmed by the Appellate Authority. d) The applicant/tenant approached this Court and filed R.C.R. No. 154/2014. By order dated 3.4.2017, this Court, while confirming the findings of the Rent Control Court as well as the Appellate Authority, as regards the locus standi of the landlord to maintain a petition and also to get the rent-refixed, took the view that the matter required to be remanded back as it was felt that cogent materials were lacking before the Subordinate Courts to fix the rent at Rs 40/ as had been ordered. e) After remand as aforesaid, in addition to the evidence already adduced, additional documents were marked by both sides and a witness was examined by the applicant. The Rent Control Court fixed the fair rent at Rs. 35/- per square feet with a biennial increase of 10%. f) The said order was challenged in Appeal and by judgment dated 22.7.2020 in R.C.A. No.11/2019, the order passed by the Rent Control Court was confirmed. g) The order was again taken up in Revision before this Court. By judgment dated 19.11.2020, the orders passed by the Subordinate Courts were upheld by the Division Bench finding that the Fair Rent fixed was reasonable, fair and in accordance with the law. h) A petition for Special Leave to Appeal as SLP No. 1540/2021 was preferred before the Apex Court. The petitioners sought leave to withdraw the Special Leave Petition to avail the remedy of review before this Court. Leave was granted to withdraw the petition and liberty was granted to the petitioners to approach the Apex Court if required. i) For reasons best known to the petitioners, they chose to file two Review Petitions. RP. No 381 of 2021 was filed seeking to review RCR 183/2020 and RP No 383/2021 was filed seeking to review the Order dated 3.4.2017 in RCR No 154/ 2014. j) The very same contentions are seen raised in both the Review k) R.P. No.381/2021 was heard by the Division bench and by order dated 24.6.2021, the contentions raised by petitioners were repelled finding that the petitioners had failed to make out a case for review of the order. It was further held that apart from the lack of merit of the contentions advanced, there was also no error apparent on the face of the records warranting interference in review. l) The petitioners did not stop at that. They filed IA No. 3/2021 in R.P.No.381/2021 seeking to permit the petitioners to advance arguments on all the grounds raised in the Memorandum of Review. Their Lordships of the Division Bench after noting that the attempt is to indirectly seek review of the judgement in R.P.No.381/2021, dismissed the petition holding that review of the review order was not permissible. m) One would have thought that the pursuit of the petitioners to resuscitate the petitions by raking up untenable contentions would end at that. However, it was not to be. Reiterating the very same contentions that were repelled by the Division Bench while considering R.P.No.381/2021, the petitioners are before this Court 4. Having heard the submissions of Sr Ramesh Babu, the learned Senior counsel appearing for the petitioners as instructed by Sri.C.Muralikrishnan and Sri.Praveen K.Joy, the learned counsel for the respondent, we find no reason to condone the delay or to entertain this Review Petition. We find that none of the contentions raised by the petitioners in the review petition was ever raised by the petitioners at the time of filing R.C.R. No.154/2014. The order of remand passed in the Revision Petition was pursued and the petitioners had adduced additional evidence before the Rent Control Court. The order passed by this Court has worked itself out. The order passed by the Rent Control Court after the remand was upheld by the Appellate Authority. The orders passed by the subordinate courts were challenged before this Court yet again by filing a Revision Petition. This Court had considered all the contentions raised by the petitioners and had refused to interfere. The SLP filed challenging the said order was withdrawn. Leave was sought to prefer review petition before this Court and for reasons best known to the applicants, they have ventured to prefer Review Petitions challenging orders passed by this Court at two stages of the litigation. They chose to pursue R.P.No.381/2021 and the Review petition was dismissed after considering the entire aspects. Their attempt to seek review of the said order has also ended in dismissal. It appears to us that the petitioners are attempting a novel form of “Forum 5. We have no doubt in our mind that this is a clear case of abuse of process of this Court. The petitioners have neither made out any case on merits nor have they given us a valid reason to condone the delay of over 1000 days. Though this is an eminently fit case for imposition of exemplary costs, in view of the fervent submissions of the learned counsel, we desist from doing so. The application for condonation of delay will stand dismissed. Consequently, the unnumbered review petition will also stand dismissed.
The Kerala High Court recently refused a request that asked the court to excuse a delay of 1062 days, which is almost three years, in filing a special kind of appeal called a Review Petition. The person asking for this didn't provide a good enough reason for such a long delay. Two judges, Justice Raja Vijayaraghavan V and Justice T.R Ravi, commented, "We are certain that this is a clear instance of misusing this Court's procedures. The people who filed this petition have not shown they have a strong legal argument, nor have they given us a valid reason to excuse a delay of over 1000 days. While this situation clearly warrants a very large fine, we are choosing not to impose one due to the passionate requests from their lawyer." Here is the complex history of how this case reached this point: The person who owns the building (the "respondent") rented out a multi-story building to a national bank (the "petitioner"). In 2009, the building owner asked a special court, known as the Rent Control Court, to decide on a fair rent for the building under a specific law. In 2012, this court set the fair rent at Rs 40 per square foot. The bank fought this decision, but a higher court (the Appellate Authority) confirmed it. The High Court also agreed with this decision in 2017. However, the High Court questioned if the building owner had the legal standing to ask for the rent to be re-fixed. Since the lower courts didn't have enough strong evidence to set the rent at Rs 40 per square foot, the High Court sent the case back to the lower court to be re-examined. After the case was sent back, the Rent Control Court decided the fair rent should be Rs 35 per square foot. Both the Appellate Court and the High Court agreed with this new decision in 2020. After all these decisions, the bank then chose to file a Review Petition. This type of petition asks the High Court to re-examine its own past decisions from 2017 and 2020. The judges stated, "We find no reason to excuse the delay or to even consider this Review Petition. We note that the bank did not bring up any of the arguments they are making now when they first filed their earlier appeal (R.C.R. No.154/2014). They also followed the High Court's order to send the case back, and they even presented more evidence to the Rent Control Court. The orders made by this Court have already been fully carried out. The decision made by the Rent Control Court after the case was sent back was also confirmed by the higher Appellate Authority." The bank challenged the decisions made by the lower courts yet again by filing another type of appeal with the High Court. After looking at all the bank's arguments, the High Court chose not to get involved and change anything. The court commented, "It seems to us that the bank is trying a new way to pick and choose which court hears its case until it gets the outcome it wants." Therefore, the Court concluded that this was a clear misuse of the legal system. The bank's request was rejected, along with their Review Petition which had not even been officially assigned a number yet. Senior lawyer Ramesh Babu represented the bank, working with Advocate C. Muralikrishnan. Advocate Praveen K Joy represented the building owner.
This is an application to condone the delay of 1062 days in preferring the 2. We have heard Sri. Ramesh Babu, the learned senior counsel appearing for the petitioners as instructed by C.Muralikrishnan, the learned counsel and Sri. Praveen K.Joy, the learned counsel appearing for the 3. This litigation has a long drawn and chequered history. We are of the view that it would be appropriate to detail the sequence of events before assessing whether the applicant has made out a sufficient cause for condoning the delay of over 1000 days. a) The respondent herein is the landlord of a multistoried building that was leased out to the 1st applicant, a Nationalised Bank. b) In the year 2009, R.C.P.No.34/2009 was filed by the respondent seeking fixation of fair rent under Section 5 (1) of the Kerala Buildings (Lease and Rent Control) Act, 1965. By order dated 6.12.2012, the Rent Control Court after evaluating the facts and circumstances, fixed the fair rent at Rs 40/ per square feet. c) The above order was challenged in appeal and by judgment dated 18.2.2014, the order passed by the Rent Control Court was confirmed by the Appellate Authority. d) The applicant/tenant approached this Court and filed R.C.R. No. 154/2014. By order dated 3.4.2017, this Court, while confirming the findings of the Rent Control Court as well as the Appellate Authority, as regards the locus standi of the landlord to maintain a petition and also to get the rent-refixed, took the view that the matter required to be remanded back as it was felt that cogent materials were lacking before the Subordinate Courts to fix the rent at Rs 40/ as had been ordered. e) After remand as aforesaid, in addition to the evidence already adduced, additional documents were marked by both sides and a witness was examined by the applicant. The Rent Control Court fixed the fair rent at Rs. 35/- per square feet with a biennial increase of 10%. f) The said order was challenged in Appeal and by judgment dated 22.7.2020 in R.C.A. No.11/2019, the order passed by the Rent Control Court was confirmed. g) The order was again taken up in Revision before this Court. By judgment dated 19.11.2020, the orders passed by the Subordinate Courts were upheld by the Division Bench finding that the Fair Rent fixed was reasonable, fair and in accordance with the law. h) A petition for Special Leave to Appeal as SLP No. 1540/2021 was preferred before the Apex Court. The petitioners sought leave to withdraw the Special Leave Petition to avail the remedy of review before this Court. Leave was granted to withdraw the petition and liberty was granted to the petitioners to approach the Apex Court if required. i) For reasons best known to the petitioners, they chose to file two Review Petitions. RP. No 381 of 2021 was filed seeking to review RCR 183/2020 and RP No 383/2021 was filed seeking to review the Order dated 3.4.2017 in RCR No 154/ 2014. j) The very same contentions are seen raised in both the Review k) R.P. No.381/2021 was heard by the Division bench and by order dated 24.6.2021, the contentions raised by petitioners were repelled finding that the petitioners had failed to make out a case for review of the order. It was further held that apart from the lack of merit of the contentions advanced, there was also no error apparent on the face of the records warranting interference in review. l) The petitioners did not stop at that. They filed IA No. 3/2021 in R.P.No.381/2021 seeking to permit the petitioners to advance arguments on all the grounds raised in the Memorandum of Review. Their Lordships of the Division Bench after noting that the attempt is to indirectly seek review of the judgement in R.P.No.381/2021, dismissed the petition holding that review of the review order was not permissible. m) One would have thought that the pursuit of the petitioners to resuscitate the petitions by raking up untenable contentions would end at that. However, it was not to be. Reiterating the very same contentions that were repelled by the Division Bench while considering R.P.No.381/2021, the petitioners are before this Court 4. Having heard the submissions of Sr Ramesh Babu, the learned Senior counsel appearing for the petitioners as instructed by Sri.C.Muralikrishnan and Sri.Praveen K.Joy, the learned counsel for the respondent, we find no reason to condone the delay or to entertain this Review Petition. We find that none of the contentions raised by the petitioners in the review petition was ever raised by the petitioners at the time of filing R.C.R. No.154/2014. The order of remand passed in the Revision Petition was pursued and the petitioners had adduced additional evidence before the Rent Control Court. The order passed by this Court has worked itself out. The order passed by the Rent Control Court after the remand was upheld by the Appellate Authority. The orders passed by the subordinate courts were challenged before this Court yet again by filing a Revision Petition. This Court had considered all the contentions raised by the petitioners and had refused to interfere. The SLP filed challenging the said order was withdrawn. Leave was sought to prefer review petition before this Court and for reasons best known to the applicants, they have ventured to prefer Review Petitions challenging orders passed by this Court at two stages of the litigation. They chose to pursue R.P.No.381/2021 and the Review petition was dismissed after considering the entire aspects. Their attempt to seek review of the said order has also ended in dismissal. It appears to us that the petitioners are attempting a novel form of “Forum 5. We have no doubt in our mind that this is a clear case of abuse of process of this Court. The petitioners have neither made out any case on merits nor have they given us a valid reason to condone the delay of over 1000 days. Though this is an eminently fit case for imposition of exemplary costs, in view of the fervent submissions of the learned counsel, we desist from doing so. The application for condonation of delay will stand dismissed. Consequently, the unnumbered review petition will also stand dismissed.
The Kerala High Court recently refused a request that asked the court to excuse a delay of 1062 days, which is almost three years, in filing a special kind of appeal called a Review Petition. The person asking for this didn't provide a good enough reason for such a long delay. Two judges, Justice Raja Vijayaraghavan V and Justice T.R Ravi, commented, "We are certain that this is a clear instance of misusing this Court's procedures. The people who filed this petition have not shown they have a strong legal argument, nor have they given us a valid reason to excuse a delay of over 1000 days. While this situation clearly warrants a very large fine, we are choosing not to impose one due to the passionate requests from their lawyer." Here is the complex history of how this case reached this point: The person who owns the building (the "respondent") rented out a multi-story building to a national bank (the "petitioner"). In 2009, the building owner asked a special court, known as the Rent Control Court, to decide on a fair rent for the building under a specific law. In 2012, this court set the fair rent at Rs 40 per square foot. The bank fought this decision, but a higher court (the Appellate Authority) confirmed it. The High Court also agreed with this decision in 2017. However, the High Court questioned if the building owner had the legal standing to ask for the rent to be re-fixed. Since the lower courts didn't have enough strong evidence to set the rent at Rs 40 per square foot, the High Court sent the case back to the lower court to be re-examined. After the case was sent back, the Rent Control Court decided the fair rent should be Rs 35 per square foot. Both the Appellate Court and the High Court agreed with this new decision in 2020. After all these decisions, the bank then chose to file a Review Petition. This type of petition asks the High Court to re-examine its own past decisions from 2017 and 2020. The judges stated, "We find no reason to excuse the delay or to even consider this Review Petition. We note that the bank did not bring up any of the arguments they are making now when they first filed their earlier appeal (R.C.R. No.154/2014). They also followed the High Court's order to send the case back, and they even presented more evidence to the Rent Control Court. The orders made by this Court have already been fully carried out. The decision made by the Rent Control Court after the case was sent back was also confirmed by the higher Appellate Authority." The bank challenged the decisions made by the lower courts yet again by filing another type of appeal with the High Court. After looking at all the bank's arguments, the High Court chose not to get involved and change anything. The court commented, "It seems to us that the bank is trying a new way to pick and choose which court hears its case until it gets the outcome it wants." Therefore, the Court concluded that this was a clear misuse of the legal system. The bank's request was rejected, along with their Review Petition which had not even been officially assigned a number yet. Senior lawyer Ramesh Babu represented the bank, working with Advocate C. Muralikrishnan. Advocate Praveen K Joy represented the building owner.
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1. This appeal, by special leave, calls in question the judgment and order dated 06th August, 2019 of the High Court of Judicature at Bombay, Bench at Nagpur, whereby Criminal Appeal No 211 of 2016 carried by the appellant assailing his conviction under section 302, Indian Penal Code, 1860 (for brevity ‘IPC’) and sentence of life imprisonment with a fine of Rs.6,000.00 and a default sentence of one year as well as sentence of seven years of rigorous imprisonment and fine of Rs.4,000.00 for the offence punishable under section 307, IPC was dismissed. 2. The prosecution case was that Nandkishor Korde (for brevity ‘the victim’) was murdered on 26 th September, 2013 at around 5:00 pm by the appellant. The other three victims, namely Namdeo Korde (P.W.2), Vilas Charde (P.W.3), and Kunal Babhulkar (P.W.4) received stab injuries caused by a knife, also inflicted by the appellant. A report was lodged soon thereafter by the mother of the victim Rekhabai Korde, (P.W.1), leading to registration of an F.I.R. under sections 302 and 307, IPC. The post-mortem report dated 27 th September, 2013 (Ext.35) recorded “stab injury to neck” of the victim as the probable cause of death. 3. Consequent to the registration of the F.I.R., Police Inspector Bharat Thakre (P.W.8) took up the investigation, visited the spot of the incident and prepared spot panchnama. He found the spot of the incident stained with blood and recovered a blood-stained knife, a wooden stick stained with blood, three pairs of chappals, two spectacles, and a blue dot pen. P.W.8 arrested the appellant and since he too had received injuries, he was referred to the Rural Hospital, Katol for his medical examination. 4. Upon completion of the investigation, a charge sheet under sections 302 and 307, IPC was filed before the concerned court against the appellant. Upon committal, charges for the above-said offences were framed to which the appellant pleaded not guilty and claimed to be tried. 5. The prosecution examined 8 (eight) witnesses to support of its case. None was examined on behalf of the defence. However, the appellant filed a written statement, which we propose to refer to at a later part of this judgment. The Additional Sessions Judge largely relied on the statements of P.W.2, P.W.3, and P.W.4 to convict the appellant. The Court concluded that the appellant committed the murder of the victim with the knife (Art.1) and also attempted to commit the murder of P.W.2, P.W.3 and P.W.4. The defence of the appellant appeared to the Court to be false and the prosecution was held to have proved its case beyond reasonable doubt. This was followed by the convictions and sentences, noted above. 6. The aforesaid judgment having been challenged before the High Court, the relevant Division Bench was of the view that the findings did not warrant any interference and that the appeal was devoid of any merit; hence, it was dismissed. 7. The first limb of the arguments advanced by learned counsel for the appellant is that the courts below clearly erred in convicting the appellant. According to him, the following points deserve a. Firstly, the courts below failed to appreciate that none of the other persons present at the site of the occurrence, namely Shankarrao Fartode, Umrao Charde, and Ramesh Korde (as per the version of P.W.2) were examined as prosecution witnesses. The courts ought to have inferred that had they been produced they would not have supported the prosecution case and, thus, were deliberately withheld. Non-examination of such independent witnesses, therefore, should be held to be fatal to the prosecution case. b. Secondly, having regard to the age of the appellant (he was 58 years old on the date of the incident), it is quite improbable that he could freely inflict stab injuries on the victim and the others without anyone of the injured as well as the others present at the site (Shankarrao Fartode, Umrao Charde, and Ramesh Korde) even making an attempt to resist the appellant from inflicting injuries as also to save anyone of the others. c. Thirdly, it was necessary to establish, by examining these independent witnesses, that it was the appellant who came with the knife and holding it was on a stabbing spree resulting in the death of the victim and injury to the others. d. Fourthly, all eyewitnesses (P.W.2, P.W.3 and P.W.4) who deposed against the appellant were interested witnesses and, therefore, not credible and their testimony ought not to have been relied upon. e. Fifthly, the courts below failed to take note that P.W.2 and P.W.3 were both interested witnesses and it was a clear case of false implication by suppressing the original story of the actual incident. f. Sixthly, it is surprising that although P.W.4 claimed to have snatched the knife from the appellant, there is no injury on his hand; on the contrary, there is no explanation from the side of the prosecution with regard to the six injuries suffered by the appellant. g. Seventhly, no motive could be established for the appellant to assault the victim and P.W.2 as the dispute between the parties arising out of unauthorized construction made by P.W.2 on the ground floor of the building of the appellant relates back to the year 2003. h. Seventhly, the knife was not recovered at the instance of the appellant under section 27 of the Indian Evidence Act, 1872 but seizure has been shown to have been made at the site. There being contradictory statements of P.W.2 and P.W.4, it is unclear as to who introduced the knife in the scuffle. i. Finally, the appellant was a permanent resident of Nagpur whereas the place of the incident is Katol, a tehsil place situated about 50 kms. from Nagpur. There could hardly be any reason for the appellant to travel such distance and murder the victim, and that too with a knife in broad daylight and in the presence of a host of people. 8. The second limb of the arguments of learned counsel is that even if it be assumed that death of the victim occasioned at the hands of the appellant, as per the prosecution case the victim was initially away from the place of incident and was the last to join the scuffle. There was, thus, no premeditation on the part of the appellant as such and the victim seems to have got injured unintentionally in the scuffle between the appellant on the one side and the victim, P.W.s 2, 3 and 4 on the other. Therefore, clearly, the victim was not the target. He contended that conviction of the appellant under section 302, IPC was erroneous on facts and in the circumstances and that the evidence at best made out a case punishable under section 304, Part II, IPC. The appellant has been behind bars for nine years and it is only fair, just and proper that this Court upon consideration of the materials on record directs his release by converting the conviction from section 302, IPC to section 304, Part II, IPC and sentencing him to the period already spent in custody. 9. Learned counsel appearing for the State, on the other hand, supported the judgment of conviction and order of sentence of the Sessions Judge. He also submitted that the High Court took pains to reappraise the evidence and finally concurred with the Sessions Judge. No case having been set up by the appellant for interference, he urged this Court to dismiss the appeal. 10. We have heard the parties, considered the evidence led by them before the trial court and perused the judgment and order of the trial court and the High Court. 11. Any detailed discussion of the oral evidence of the prosecution witnesses is considered unnecessary in view of the “WRITTEN STATEMENT” dated 31st March, 2016 (Ext.96) of the appellant [Annexure ‘P-16’ to the paperbook], which was filed by him before the trial court in his defence, in terms of sub-section (5) of section 313 Code of Criminal Procedure, 1973 (for brevity ‘Cr. P.C.). It is also noted that while replying to Q. No.79 in course of examination under section 313(1), the appellant had referred to such a 12. The gist of Ext. 96, to the extent relevant for the purpose of a decision on this appeal, is that the appellant used to come to Katol from Nagpur for collecting rent every 2-3 months; that the appellant came to Katol on 26th September, 2013 for collecting rent; that while the appellant was returning from a credit society after withdrawing money and climbing the stairs of his house, the victim spit on him and threatened him by saying “Aaj tere ko fitate hai, tera game bajate hai”; that while the appellant was leaving his house, P.W.2 gave a signal to the victim and P.W.4 by saying “Ala re ala”; on seeing the appellant, the victim took out a knife and P.W.4 took out a ‘fighter’ belonging to P.W.3 and started beating him; that the appellant could take the knife with both his hands and in the meantime P.W.2 and P.W.3 came forward to beat the appellant; that while the appellant tried to save himself, the victim and P.W.s 2 to 4 sustained injuries; that the appellant too suffered serious injuries on the fingers of both his hands, knife wounds on his chest and injuries on his chest and right shoulder having been beaten by a wooden stick. Immediately after such incident, the appellant went to the police station for lodging a complaint against his assailants but the same was not received. He was made to wait in the police station till 10.00 pm without his injuries being treated. He also stated that P.W.s 2, 3 and 4 had strained relations with him and that is the reason why they tried to seriously injure him. 13. There is a plethora of judicial pronouncements on consideration of section 313, Cr. P.C., a few of which need to be noted at this stage. 14. A bench of three Hon’ble Judges of this Court in State of U.P. vs Lakhmi1 has extensively dealt with the aspect of value or utility of a statement under section 313, Cr. P.C. The object of section 313, Cr. P.C. was explained by this Court in Sanatan Naskar vs. State of West Bengal2. The rationale behind the requirement to comply with section 313, Cr. P.C. was adverted to by this Court in Reena Hazarika vs. State of Assam3. Close on the heels thereof, in Parminder Kaur vs. State of Punjab4, this Court restated the importance of section 313, Cr. P.C. upon noticing the view taken in Reena Hazarika (supra) and M. Abbas vs. State of Kerala5. 15. What follows from these authorities may briefly be a. section 313, Cr. P.C. [clause (b) of sub-section 1] is a valuable safeguard in the trial process for the accused to establish b. section 313, which is intended to ensure a direct dialogue between the court and the accused, casts a mandatory duty on the court to question the accused generally on the case for the purpose of enabling him to personally explain any circumstances appearing in the evidence against him; c. when questioned, the accused may not admit his involvement at all and choose to flatly deny or outrightly repudiate whatever is put to him by the court; d. the accused may even admit or own incriminating circumstances adduced against him to adopt legally recognized e. an accused can make a statement without fear of being cross-examined by the prosecution or the latter having any right to f. the explanations that an accused may furnish cannot be considered in isolation but has to be considered in conjunction with the evidence adduced by the prosecution and, therefore, no conviction can be premised solely on the basis of the section 313 g. statements of the accused in course of examination under section 313, since not on oath, do not constitute evidence under section 3 of the Evidence Act, yet, the answers given are relevant for finding the truth and examining the veracity of the prosecution h. statement(s) of the accused cannot be dissected to rely on the inculpatory part and ignore the exculpatory part and has/have to be read in the whole, inter alia, to test the authenticity of the exculpatory nature of admission; and i. if the accused takes a defence and proffers any alternate version of events or interpretation, the court has to carefully analyze and consider his statements; j. any failure to consider the accused’s explanation of incriminating circumstances, in a given case, may vitiate the trial and/or endanger the conviction. 16. Bearing the above well-settled principles in mind, every criminal court proceeding under clause (b) of sub-section (1) of section 313 has to shoulder the onerous responsibility of scanning the evidence after the prosecution closes its case, to trace the incriminating circumstances in the evidence against the accused and to prepare relevant questions to extend opportunity to the accused to explain any such circumstance in the evidence that could be used against him. Prior to the amendment of section 313 in 2009, the courts alone had to perform this task. Instances of interference with convictions by courts of appeal on the ground of failure of the trial court to frame relevant questions and to put the same to the accused were not rare. For toning up the criminal justice system and ensuring a fair and speedy trial, with emphasis on cutting down delays, the Parliament amended section 313 in 2009 and inserted sub-section (5), thereby enabling the court to take the assistance of the Public Prosecutor and Defence Counsel in preparing such questions [the first part of sub-section (5)]. Ideally, with such assistance (which has to be real and not sham to make the effort effective and meaningful), one would tend to believe that the courts probably are now better equipped to diligently prepare the relevant questions, lest there be any infirmity. However, judicial experience has shown that more often than not, the time and effort behind such an exercise put in by the trial court does not achieve the desired result. This is because either the accused elects to come forward with evasive denials or answers questions with stereotypes like ‘false’, ‘I don’t know’, ‘incorrect’, etc. Many a time, this does more harm than good to the cause of the accused. For instance, if facts within the special knowledge of the accused are not satisfactorily explained, that could be a factor against the accused. Though such factor by itself is not conclusive of guilt, it becomes relevant while considering the totality of the circumstances. A proper explanation of one’s conduct or a version different from the prosecution version, without being obliged to face cross- examination, could provide the necessary hint or clue for the court to have a different perspective and solve the problem before it. The exercise under section 313 instead of being ritualistic ought to be realistic in the sense that it should be the means for securing the ends of justice; instead of an aimless effort, the means towards the end should be purposeful. Indeed, it is optional for the accused to explain the circumstances put to him under section 313, but the safeguard provided by it and the valuable right that it envisions, if availed of or exercised, could prove decisive and have an effect on the final outcome, which would in effect promote utility of the exercise rather than its futility. 17. Once a written statement is filed by the accused under sub- section (5) of section 313, Cr. P.C. and the court marks it as an exhibit, such statement must be treated as part of the accused’s statement under sub-section (1) read with sub-section (4) thereof. In view of the latter sub-section, the written statement has to be considered in the light of the evidence led by the prosecution to appreciate the truthfulness or otherwise of such case and the contents of such statement weighed with the probabilities of the case either in favour of the accused or against him. 18. This is a case where it does not appear from the records that the written statement (Ext. 96) engaged the attention of both the trial court as well as the High Court. Applying the principles noted above and for the reasons discussed below, there can be no quarrel that non-consideration of Ext. 96, to a limited extent, in relation to recording of conviction and consequently imposition of sentence, has rendered it vulnerable to interference. 19. Ext. 96 refers to inculpatory admissions as well as seeks to bring out exculpatory circumstances. The statement has to be read in its entirety. The inculpatory admissions emerging from this statement against the appellant are (i) his presence at the spot and (ii) sustaining of injuries by the victim and the other prosecution witnesses while the appellant, as claimed, was attempting to save himself from getting injured. The exculpatory circumstances sought to be established are (i) the appellant’s description of the act complained of as involuntary, which was compelled by inevitable circumstances and not guided by choice and, (ii) sustaining of injury by him in the same transaction. 20. In view of the inculpatory admissions appearing from Ext.96, the trial court, and the High Court while concurring with the trial court, need not have laboured much to convict the appellant as the person instrumental for the homicidal death of the victim by discussing the evidence led in course of the trial in details. The appellant’s presence at the spot and the victim and the injured witnesses sustaining injury in course of the scuffle could be held to have been established from Ext.96 itself. However, by not looking into Ext. 96 with the other evidence on record, what the trial court omitted to consider is, whether the prosecution was justified in claiming that the offensive act amounted to culpable homicide amounting to murder or whether the appellant being guilty of culpable homicide not amounting to murder, deserved punishment under section 304, Part II, IPC. True it is, the trial court considered the arguments advanced on behalf of the appellant that (i) he had “exercised his right of private defence”, and though (ii) “he exceeded such right”, (iii) the present case at the most would fall under section 304, Part II, IPC; but, it proceeded to overrule such arguments by relying on the oral testimony of P.W.s 2 to 4. In the process, the trial court failed to appreciate the defence version as spelt out in Ext.96, which appears to us to be plausible. A senior citizen who visits Katol from Nagpur, his place of residence, for collecting rent, having the intention of murder would possibly not attempt to do so in broad daylight and in the presence of witnesses, and that too with a weapon such as a knife. Reading Ext.96 as it is, we do find it probable that there could have been provocation at the instance of the victim, who allegedly indulged in spitting on the appellant coupled with verbal abuse, whereafter P.W.2 and later P.W.s 3 and 4 sprang into action, resulting in a scuffle where both parties indulged in inflicting injuries on each other resulting in an unwanted loss of life. 21. Regrettably, pointed attention of the High Court does not appear to have been drawn to Ext.96 by counsel on behalf of the appellant, as a consequence whereof the Court went on to hold that the “act could not be shown to have come in any of the exceptions enumerated in Section 300 of IPC”, that “it is neither the result of sudden provocation nor done in the heat of passion during quarrel”, and that it had “no hesitation to hold that the death of Nandkishor is culpable homicide amounting to murder”. 22. Be that as it may, we have no difficulty in proceeding to record our conclusions resting on the evidence on record as well as Ext.96, which the appellant voluntarily filed before the trial court as his response to the incriminating materials appearing in the evidence against him while being questioned under section 313, Cr. P.C, for whatever it is worth. It appears to us to be a fair and proper disclosure of the appellant’s version as to what transpired on that fateful evening. The offensive act committed by the appellant has to be appreciated in the surrounding circumstances noted below. 23. In the normal run of events, the victim as well as P.W.2 and the appellant were not supposed to interact with each other on 26 th September, 2013. P.W.2 opened the shop of the victim because the victim had not returned from the field. If P.W.2 had not opened the shop, the appellant would probably not have met him. It was by chance that the appellant and P.W.2 met each other. The victim and the appellant had no quarrel with each other; whatever was there, it was between the appellant and P.W.2. The inter se quarrel between the two had long subsided. There is a missing link in the prosecution case as to the motive of the appellant to inflict the blow on P.W.2 first. It is in the evidence of P.W.2 that he was reading a newspaper sitting in front of the shop of the victim and that the appellant was sitting in the saloon of Baburao Sawarkar (not examined), which was opposite to the shop of the victim. The appellant, as per P.W.2, was unarmed initially. P.W.2’s further version was that the appellant went to his house, fetched a knife and then stabbed P.W.2 on his left shoulder, neck and left-hand finger resulting in serious bleeding injuries. The reason why the appellant suddenly on seeing the septuagenarian P.W.2 would go to his house and return with a knife is not there in the evidence. We shall, for the present, assume that there were heated exchanges and that the appellant gave a blow to P.W.2 first, and thereafter to the others one by one. Then again, the victim who, according to P.W.2, was supposed to be in the field but appeared in the scene from some other place all on a sudden, was the third in the series to be stabbed by the appellant and, thus, was not his target. Though there is no specific admission by the appellant that he had stabbed the victim or the other injured witnesses, reading of the contents of Ext.96 does evince an act of retaliation spurred by sudden provocation resulting in a quarrel as well as a scuffle which ultimately, most unfortunately, cost the victim his life and left some others injured. The appellant too sustained injuries in the scuffle and there is evidence on record that one of the injuries was grievous, yet, the criminal law was surprisingly not set in motion to bring to book those responsible for inflicting such injury. It was in a sudden quarrel, which could have been provoked by the victim and P.W.2, that blows followed from each side. Most importantly, the circumstances in which the incident occurred does clearly negate any suggestion of premeditation in mind. That apart, it cannot be overlooked that while the victim was middle-aged, the appellant was in his late fifties. At the time of the alleged incident, apart from P.W.s 2 and 3, Shankarrao Fartode, Umrao Charde, Ramesh Korde (all three not examined) were present at the spot, as per the version of P.W.2. It is indeed improbable that in the presence of such persons, the appellant wielding a weapon like a knife would come to the spot with an intention to commit the offence of murder overpowering all of them without any sufficient reason or provocation. In our opinion, the trial court lacked in objectivity by not examining the facts and circumstances as to whether the situation was such as is likely to reasonably cause an apprehension in the mind of the appellant that there was imminent danger to his body, of either death or grievous hurt being caused to him, if he did not act in private defence. To impute intention to cause death or the intention to cause that particular injury, which proved fatal, in these circumstances seems to be unreasonable. 24. Exception 4 to section 300, IPC ordains that culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. The explanation thereto clarifies that it is immaterial in such cases which party offers the provocation or commits the first assault. Four requirements must be satisfied to invoke this exception, viz. (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel or unusual manner. 25. Taking an overall view of the matter, we are inclined to the opinion that the appellant was entitled to the benefit of Exception 4 to section 300, IPC. 26. The upshot of the above discussion is that this is not a case where the appellant could be convicted for murder of the victim. His conviction for murder and sentence of life imprisonment are liable to be set aside. It is ordered accordingly. 27. However, we think it proper to convict the appellant under section 304, Part II, IPC. Since the appellant has suffered imprisonment for more than nine years and he is presently in his late sixties, we consider incarceration for such period as adequate punishment. The appellant shall be released from custody forthwith, unless required in connection with any other case. 28. Since the appellant has already served the sentence imposed for commission of offence under section 307, IPC, based on a conviction which is highly suspect, we allow it to rest. 29. The appeal stands allowed to the extent indicated above. No 30. Before parting, we observe that this is a case where the police should have investigated the injuries suffered by the appellant too. The appellant also did not pursue any available remedy to right the wrong. However, in view of little less than a decade having passed since the incident took place, any direction to investigate at this distance of time may not yield any fruitful result. We, therefore, refrain from issuing such direction. JJ.]...FOR ADMISSION and I.R. and IA No.184015/2019-EXEMPTION FROM Date : 03-03-2023 This matter was called on for pronouncement for judgment today. UPON hearing the counsel the Court made the following Hon’ble Mr. Justice Dipankar Datta pronounced the reportable judgment of the Bench comprising Hon’ble Mr. Justice S. Ravindra Bhat and His Lordship. The operative portion of the reportable judgment reads as “26. The upshot of the above discussion is that this is not a case where the appellant could be convicted for murder of the victim. His conviction for murder and sentence of life imprisonment are liable to be set aside. It is ordered accordingly. 27. However, we think it proper to convict the appellant under section 304, Part II, IPC. Since the appellant has suffered imprisonment for more than nine years and he is presently in his late sixties, we consider incarceration for such period as adequate punishment. The appellant shall be released from custody forthwith, unless required in connection with any other case. 28. Since the appellant has already served the sentence imposed for commission of offence under section 307, IPC, based on a conviction which is highly suspect, we allow it to rest.” The appeal stands allowed in terms of the All pending applications are disposed of. (Signed reportable judgment is placed on the file)
The Supreme Court recently said that if a person accused of a crime gives a written statement under a specific rule (Section 313(5) of the criminal procedure law), and the court officially accepts it, this statement must be considered a regular part of what the accused says in court under other related rules (Section 313(1) and (4)). The Court also explained that this written statement must be looked at alongside all the evidence the prosecution presents. This helps the court decide if the accused’s story is true or not. The statement’s contents should be compared with what seems likely to have happened, to see if it supports the accused or goes against them. When the judges, Justice S. Ravindra Bhat and Justice Dipankar Datta, discussed the rules in Section 313 of the criminal procedure law about questioning the accused person, they pointed out something important. It is not required for the accused to explain things the court asks about under Section 313. However, this rule offers protection and a valuable right. If the accused chooses to use this right, it can strongly influence the final decision of the case. This makes the process helpful rather than pointless. Factual Background This case was about a murder. The mother of the person who died filed a police report, which led to a formal police investigation (FIR) under laws about murder and attempted murder. Later, the person accused of the crime was arrested. The first court (Trial Court) decided that the accused had killed the person with a knife and also tried to murder three other people who were witnesses for the prosecution. The court believed the prosecution had proven its case with strong evidence, found the accused guilty, and gave him a life sentence. The accused then tried to challenge this decision in a higher court, the Bombay High Court, but that appeal was also rejected. Analysis by the Supreme Court The Supreme Court looked at the written statement the accused gave to the first court to explain his side of the story, based on Section 313 of the criminal procedure law. In this statement, the accused said he visited Katol every few months for rent. He claimed that during one visit, the person who died threatened him, and the three prosecution witnesses attacked him. He also said he tried to report this to the police, but they didn't take his complaint. The Court then referred to many previous court decisions about Section 313 and summarized the main rules that have been established. The Court briefly outlined some established rules about Section 313 of the criminal procedure law. First, this section is a crucial safeguard in a trial, helping an accused person prove their innocence. It is designed to allow the court to speak directly with the accused. The court has a duty to ask general questions about the case, so the accused can personally explain any evidence that seems to go against them. When questioned, the accused does not have to admit guilt and can simply deny or reject what the court suggests. In fact, an accused person might even admit to certain facts that look incriminating, but they do this to present a valid legal defense. An important protection is that the accused can make a statement without being aggressively questioned by the prosecution. However, any explanations the accused gives must not be looked at alone; they need to be considered along with all the evidence the prosecution has shown. This means a person cannot be found guilty based only on what they say under Section 313. While these statements are not made under oath and so are not formal evidence, the answers are still important for finding the truth and checking the accuracy of the prosecution's case. Additionally, an accused's statement cannot be cut into pieces, only using the parts that suggest guilt and ignoring those that suggest innocence. The entire statement must be read as a whole, for example, to see if the parts claiming innocence are genuine. If the accused presents a defense or offers a different version of events, the court must carefully study and consider their statements. Lastly, if the court fails to consider the accused's explanation for circumstances that seem to point to guilt, it could make the trial unfair or even put the guilty verdict at risk. The Court noted that after the prosecution finishes presenting its case, the first court (Trial Court) should carefully review all the evidence. It should find any details that suggest the accused is guilty and then create a list of questions for the accused to explain those details. Before 2009, when Section 313 was changed, only the court had to do this. The 2009 change meant the court could get help from the government lawyer (Public Prosecutor) and the accused’s lawyer (Defence Counsel) to prepare these questions. The goal was to make trials fair and quick. However, the Supreme Court pointed out that this ideal is often not met because ...often, the effort the trial court puts into this questioning doesn't achieve its purpose. This happens because the accused often gives answers that avoid the question or uses simple responses like "false," "I don't know," or "incorrect." Sometimes, this actually hurts the accused's case more than it helps. For example, if the accused doesn't properly explain things that only they would know, that could count against them. While this alone doesn't prove guilt, it becomes important when the court looks at all the facts together. The Court suggested that the questioning under Section 313 should be practical and truly help achieve justice. It found that in this specific case, neither the first court nor the High Court had even looked at the accused's written statement. The Supreme Court also saw that the first court didn't properly consider the accused's claim of self-defense, which seemed believable. The Court thought that if the accused, an elderly man, truly intended to murder someone, he wouldn't have tried to do it with a knife, in broad daylight, and with witnesses present. The Court decided that the accused deserved the benefit of a specific legal rule (Exception 4 to Section 300 of the Indian Penal Code). This rule says that killing someone is not murder if it happens without a plan, during a sudden fight fueled by strong emotion from a sudden argument, and without the person taking an unfair advantage or acting in a very cruel way. Because of this, the Supreme Court found him guilty of a lesser crime, under Section 304 of the Indian Penal Code, which is a type of killing that is less severe than murder. Since the accused had already spent 9 years in prison and was in his late sixties, the Court ordered him to be set free. Finally, the Court mentioned that the police should have looked into the injuries the accused had. But since nearly ten years had passed since the incident, the Court decided that asking for an investigation now would not be helpful. Section 313 of the Criminal Procedure law, from 1973, refers to a specific court process. Judges have often found that the time and effort they put into this process usually doesn't achieve the best outcome. This often happens because the person accused of a crime either gives unclear answers or uses simple replies like 'false,' 'I don't know,' or 'incorrect.' Many times, this actually hurts the accused person's case rather than helping it. For example, if the accused doesn't properly explain certain facts that only they would know, this can count against them. Even though such a fact alone doesn't prove guilt, it becomes important when the court looks at all the evidence and details of the case together. (Para 16)
1. This appeal, by special leave, calls in question the judgment and order dated 06th August, 2019 of the High Court of Judicature at Bombay, Bench at Nagpur, whereby Criminal Appeal No 211 of 2016 carried by the appellant assailing his conviction under section 302, Indian Penal Code, 1860 (for brevity ‘IPC’) and sentence of life imprisonment with a fine of Rs.6,000.00 and a default sentence of one year as well as sentence of seven years of rigorous imprisonment and fine of Rs.4,000.00 for the offence punishable under section 307, IPC was dismissed. 2. The prosecution case was that Nandkishor Korde (for brevity ‘the victim’) was murdered on 26 th September, 2013 at around 5:00 pm by the appellant. The other three victims, namely Namdeo Korde (P.W.2), Vilas Charde (P.W.3), and Kunal Babhulkar (P.W.4) received stab injuries caused by a knife, also inflicted by the appellant. A report was lodged soon thereafter by the mother of the victim Rekhabai Korde, (P.W.1), leading to registration of an F.I.R. under sections 302 and 307, IPC. The post-mortem report dated 27 th September, 2013 (Ext.35) recorded “stab injury to neck” of the victim as the probable cause of death. 3. Consequent to the registration of the F.I.R., Police Inspector Bharat Thakre (P.W.8) took up the investigation, visited the spot of the incident and prepared spot panchnama. He found the spot of the incident stained with blood and recovered a blood-stained knife, a wooden stick stained with blood, three pairs of chappals, two spectacles, and a blue dot pen. P.W.8 arrested the appellant and since he too had received injuries, he was referred to the Rural Hospital, Katol for his medical examination. 4. Upon completion of the investigation, a charge sheet under sections 302 and 307, IPC was filed before the concerned court against the appellant. Upon committal, charges for the above-said offences were framed to which the appellant pleaded not guilty and claimed to be tried. 5. The prosecution examined 8 (eight) witnesses to support of its case. None was examined on behalf of the defence. However, the appellant filed a written statement, which we propose to refer to at a later part of this judgment. The Additional Sessions Judge largely relied on the statements of P.W.2, P.W.3, and P.W.4 to convict the appellant. The Court concluded that the appellant committed the murder of the victim with the knife (Art.1) and also attempted to commit the murder of P.W.2, P.W.3 and P.W.4. The defence of the appellant appeared to the Court to be false and the prosecution was held to have proved its case beyond reasonable doubt. This was followed by the convictions and sentences, noted above. 6. The aforesaid judgment having been challenged before the High Court, the relevant Division Bench was of the view that the findings did not warrant any interference and that the appeal was devoid of any merit; hence, it was dismissed. 7. The first limb of the arguments advanced by learned counsel for the appellant is that the courts below clearly erred in convicting the appellant. According to him, the following points deserve a. Firstly, the courts below failed to appreciate that none of the other persons present at the site of the occurrence, namely Shankarrao Fartode, Umrao Charde, and Ramesh Korde (as per the version of P.W.2) were examined as prosecution witnesses. The courts ought to have inferred that had they been produced they would not have supported the prosecution case and, thus, were deliberately withheld. Non-examination of such independent witnesses, therefore, should be held to be fatal to the prosecution case. b. Secondly, having regard to the age of the appellant (he was 58 years old on the date of the incident), it is quite improbable that he could freely inflict stab injuries on the victim and the others without anyone of the injured as well as the others present at the site (Shankarrao Fartode, Umrao Charde, and Ramesh Korde) even making an attempt to resist the appellant from inflicting injuries as also to save anyone of the others. c. Thirdly, it was necessary to establish, by examining these independent witnesses, that it was the appellant who came with the knife and holding it was on a stabbing spree resulting in the death of the victim and injury to the others. d. Fourthly, all eyewitnesses (P.W.2, P.W.3 and P.W.4) who deposed against the appellant were interested witnesses and, therefore, not credible and their testimony ought not to have been relied upon. e. Fifthly, the courts below failed to take note that P.W.2 and P.W.3 were both interested witnesses and it was a clear case of false implication by suppressing the original story of the actual incident. f. Sixthly, it is surprising that although P.W.4 claimed to have snatched the knife from the appellant, there is no injury on his hand; on the contrary, there is no explanation from the side of the prosecution with regard to the six injuries suffered by the appellant. g. Seventhly, no motive could be established for the appellant to assault the victim and P.W.2 as the dispute between the parties arising out of unauthorized construction made by P.W.2 on the ground floor of the building of the appellant relates back to the year 2003. h. Seventhly, the knife was not recovered at the instance of the appellant under section 27 of the Indian Evidence Act, 1872 but seizure has been shown to have been made at the site. There being contradictory statements of P.W.2 and P.W.4, it is unclear as to who introduced the knife in the scuffle. i. Finally, the appellant was a permanent resident of Nagpur whereas the place of the incident is Katol, a tehsil place situated about 50 kms. from Nagpur. There could hardly be any reason for the appellant to travel such distance and murder the victim, and that too with a knife in broad daylight and in the presence of a host of people. 8. The second limb of the arguments of learned counsel is that even if it be assumed that death of the victim occasioned at the hands of the appellant, as per the prosecution case the victim was initially away from the place of incident and was the last to join the scuffle. There was, thus, no premeditation on the part of the appellant as such and the victim seems to have got injured unintentionally in the scuffle between the appellant on the one side and the victim, P.W.s 2, 3 and 4 on the other. Therefore, clearly, the victim was not the target. He contended that conviction of the appellant under section 302, IPC was erroneous on facts and in the circumstances and that the evidence at best made out a case punishable under section 304, Part II, IPC. The appellant has been behind bars for nine years and it is only fair, just and proper that this Court upon consideration of the materials on record directs his release by converting the conviction from section 302, IPC to section 304, Part II, IPC and sentencing him to the period already spent in custody. 9. Learned counsel appearing for the State, on the other hand, supported the judgment of conviction and order of sentence of the Sessions Judge. He also submitted that the High Court took pains to reappraise the evidence and finally concurred with the Sessions Judge. No case having been set up by the appellant for interference, he urged this Court to dismiss the appeal. 10. We have heard the parties, considered the evidence led by them before the trial court and perused the judgment and order of the trial court and the High Court. 11. Any detailed discussion of the oral evidence of the prosecution witnesses is considered unnecessary in view of the “WRITTEN STATEMENT” dated 31st March, 2016 (Ext.96) of the appellant [Annexure ‘P-16’ to the paperbook], which was filed by him before the trial court in his defence, in terms of sub-section (5) of section 313 Code of Criminal Procedure, 1973 (for brevity ‘Cr. P.C.). It is also noted that while replying to Q. No.79 in course of examination under section 313(1), the appellant had referred to such a 12. The gist of Ext. 96, to the extent relevant for the purpose of a decision on this appeal, is that the appellant used to come to Katol from Nagpur for collecting rent every 2-3 months; that the appellant came to Katol on 26th September, 2013 for collecting rent; that while the appellant was returning from a credit society after withdrawing money and climbing the stairs of his house, the victim spit on him and threatened him by saying “Aaj tere ko fitate hai, tera game bajate hai”; that while the appellant was leaving his house, P.W.2 gave a signal to the victim and P.W.4 by saying “Ala re ala”; on seeing the appellant, the victim took out a knife and P.W.4 took out a ‘fighter’ belonging to P.W.3 and started beating him; that the appellant could take the knife with both his hands and in the meantime P.W.2 and P.W.3 came forward to beat the appellant; that while the appellant tried to save himself, the victim and P.W.s 2 to 4 sustained injuries; that the appellant too suffered serious injuries on the fingers of both his hands, knife wounds on his chest and injuries on his chest and right shoulder having been beaten by a wooden stick. Immediately after such incident, the appellant went to the police station for lodging a complaint against his assailants but the same was not received. He was made to wait in the police station till 10.00 pm without his injuries being treated. He also stated that P.W.s 2, 3 and 4 had strained relations with him and that is the reason why they tried to seriously injure him. 13. There is a plethora of judicial pronouncements on consideration of section 313, Cr. P.C., a few of which need to be noted at this stage. 14. A bench of three Hon’ble Judges of this Court in State of U.P. vs Lakhmi1 has extensively dealt with the aspect of value or utility of a statement under section 313, Cr. P.C. The object of section 313, Cr. P.C. was explained by this Court in Sanatan Naskar vs. State of West Bengal2. The rationale behind the requirement to comply with section 313, Cr. P.C. was adverted to by this Court in Reena Hazarika vs. State of Assam3. Close on the heels thereof, in Parminder Kaur vs. State of Punjab4, this Court restated the importance of section 313, Cr. P.C. upon noticing the view taken in Reena Hazarika (supra) and M. Abbas vs. State of Kerala5. 15. What follows from these authorities may briefly be a. section 313, Cr. P.C. [clause (b) of sub-section 1] is a valuable safeguard in the trial process for the accused to establish b. section 313, which is intended to ensure a direct dialogue between the court and the accused, casts a mandatory duty on the court to question the accused generally on the case for the purpose of enabling him to personally explain any circumstances appearing in the evidence against him; c. when questioned, the accused may not admit his involvement at all and choose to flatly deny or outrightly repudiate whatever is put to him by the court; d. the accused may even admit or own incriminating circumstances adduced against him to adopt legally recognized e. an accused can make a statement without fear of being cross-examined by the prosecution or the latter having any right to f. the explanations that an accused may furnish cannot be considered in isolation but has to be considered in conjunction with the evidence adduced by the prosecution and, therefore, no conviction can be premised solely on the basis of the section 313 g. statements of the accused in course of examination under section 313, since not on oath, do not constitute evidence under section 3 of the Evidence Act, yet, the answers given are relevant for finding the truth and examining the veracity of the prosecution h. statement(s) of the accused cannot be dissected to rely on the inculpatory part and ignore the exculpatory part and has/have to be read in the whole, inter alia, to test the authenticity of the exculpatory nature of admission; and i. if the accused takes a defence and proffers any alternate version of events or interpretation, the court has to carefully analyze and consider his statements; j. any failure to consider the accused’s explanation of incriminating circumstances, in a given case, may vitiate the trial and/or endanger the conviction. 16. Bearing the above well-settled principles in mind, every criminal court proceeding under clause (b) of sub-section (1) of section 313 has to shoulder the onerous responsibility of scanning the evidence after the prosecution closes its case, to trace the incriminating circumstances in the evidence against the accused and to prepare relevant questions to extend opportunity to the accused to explain any such circumstance in the evidence that could be used against him. Prior to the amendment of section 313 in 2009, the courts alone had to perform this task. Instances of interference with convictions by courts of appeal on the ground of failure of the trial court to frame relevant questions and to put the same to the accused were not rare. For toning up the criminal justice system and ensuring a fair and speedy trial, with emphasis on cutting down delays, the Parliament amended section 313 in 2009 and inserted sub-section (5), thereby enabling the court to take the assistance of the Public Prosecutor and Defence Counsel in preparing such questions [the first part of sub-section (5)]. Ideally, with such assistance (which has to be real and not sham to make the effort effective and meaningful), one would tend to believe that the courts probably are now better equipped to diligently prepare the relevant questions, lest there be any infirmity. However, judicial experience has shown that more often than not, the time and effort behind such an exercise put in by the trial court does not achieve the desired result. This is because either the accused elects to come forward with evasive denials or answers questions with stereotypes like ‘false’, ‘I don’t know’, ‘incorrect’, etc. Many a time, this does more harm than good to the cause of the accused. For instance, if facts within the special knowledge of the accused are not satisfactorily explained, that could be a factor against the accused. Though such factor by itself is not conclusive of guilt, it becomes relevant while considering the totality of the circumstances. A proper explanation of one’s conduct or a version different from the prosecution version, without being obliged to face cross- examination, could provide the necessary hint or clue for the court to have a different perspective and solve the problem before it. The exercise under section 313 instead of being ritualistic ought to be realistic in the sense that it should be the means for securing the ends of justice; instead of an aimless effort, the means towards the end should be purposeful. Indeed, it is optional for the accused to explain the circumstances put to him under section 313, but the safeguard provided by it and the valuable right that it envisions, if availed of or exercised, could prove decisive and have an effect on the final outcome, which would in effect promote utility of the exercise rather than its futility. 17. Once a written statement is filed by the accused under sub- section (5) of section 313, Cr. P.C. and the court marks it as an exhibit, such statement must be treated as part of the accused’s statement under sub-section (1) read with sub-section (4) thereof. In view of the latter sub-section, the written statement has to be considered in the light of the evidence led by the prosecution to appreciate the truthfulness or otherwise of such case and the contents of such statement weighed with the probabilities of the case either in favour of the accused or against him. 18. This is a case where it does not appear from the records that the written statement (Ext. 96) engaged the attention of both the trial court as well as the High Court. Applying the principles noted above and for the reasons discussed below, there can be no quarrel that non-consideration of Ext. 96, to a limited extent, in relation to recording of conviction and consequently imposition of sentence, has rendered it vulnerable to interference. 19. Ext. 96 refers to inculpatory admissions as well as seeks to bring out exculpatory circumstances. The statement has to be read in its entirety. The inculpatory admissions emerging from this statement against the appellant are (i) his presence at the spot and (ii) sustaining of injuries by the victim and the other prosecution witnesses while the appellant, as claimed, was attempting to save himself from getting injured. The exculpatory circumstances sought to be established are (i) the appellant’s description of the act complained of as involuntary, which was compelled by inevitable circumstances and not guided by choice and, (ii) sustaining of injury by him in the same transaction. 20. In view of the inculpatory admissions appearing from Ext.96, the trial court, and the High Court while concurring with the trial court, need not have laboured much to convict the appellant as the person instrumental for the homicidal death of the victim by discussing the evidence led in course of the trial in details. The appellant’s presence at the spot and the victim and the injured witnesses sustaining injury in course of the scuffle could be held to have been established from Ext.96 itself. However, by not looking into Ext. 96 with the other evidence on record, what the trial court omitted to consider is, whether the prosecution was justified in claiming that the offensive act amounted to culpable homicide amounting to murder or whether the appellant being guilty of culpable homicide not amounting to murder, deserved punishment under section 304, Part II, IPC. True it is, the trial court considered the arguments advanced on behalf of the appellant that (i) he had “exercised his right of private defence”, and though (ii) “he exceeded such right”, (iii) the present case at the most would fall under section 304, Part II, IPC; but, it proceeded to overrule such arguments by relying on the oral testimony of P.W.s 2 to 4. In the process, the trial court failed to appreciate the defence version as spelt out in Ext.96, which appears to us to be plausible. A senior citizen who visits Katol from Nagpur, his place of residence, for collecting rent, having the intention of murder would possibly not attempt to do so in broad daylight and in the presence of witnesses, and that too with a weapon such as a knife. Reading Ext.96 as it is, we do find it probable that there could have been provocation at the instance of the victim, who allegedly indulged in spitting on the appellant coupled with verbal abuse, whereafter P.W.2 and later P.W.s 3 and 4 sprang into action, resulting in a scuffle where both parties indulged in inflicting injuries on each other resulting in an unwanted loss of life. 21. Regrettably, pointed attention of the High Court does not appear to have been drawn to Ext.96 by counsel on behalf of the appellant, as a consequence whereof the Court went on to hold that the “act could not be shown to have come in any of the exceptions enumerated in Section 300 of IPC”, that “it is neither the result of sudden provocation nor done in the heat of passion during quarrel”, and that it had “no hesitation to hold that the death of Nandkishor is culpable homicide amounting to murder”. 22. Be that as it may, we have no difficulty in proceeding to record our conclusions resting on the evidence on record as well as Ext.96, which the appellant voluntarily filed before the trial court as his response to the incriminating materials appearing in the evidence against him while being questioned under section 313, Cr. P.C, for whatever it is worth. It appears to us to be a fair and proper disclosure of the appellant’s version as to what transpired on that fateful evening. The offensive act committed by the appellant has to be appreciated in the surrounding circumstances noted below. 23. In the normal run of events, the victim as well as P.W.2 and the appellant were not supposed to interact with each other on 26 th September, 2013. P.W.2 opened the shop of the victim because the victim had not returned from the field. If P.W.2 had not opened the shop, the appellant would probably not have met him. It was by chance that the appellant and P.W.2 met each other. The victim and the appellant had no quarrel with each other; whatever was there, it was between the appellant and P.W.2. The inter se quarrel between the two had long subsided. There is a missing link in the prosecution case as to the motive of the appellant to inflict the blow on P.W.2 first. It is in the evidence of P.W.2 that he was reading a newspaper sitting in front of the shop of the victim and that the appellant was sitting in the saloon of Baburao Sawarkar (not examined), which was opposite to the shop of the victim. The appellant, as per P.W.2, was unarmed initially. P.W.2’s further version was that the appellant went to his house, fetched a knife and then stabbed P.W.2 on his left shoulder, neck and left-hand finger resulting in serious bleeding injuries. The reason why the appellant suddenly on seeing the septuagenarian P.W.2 would go to his house and return with a knife is not there in the evidence. We shall, for the present, assume that there were heated exchanges and that the appellant gave a blow to P.W.2 first, and thereafter to the others one by one. Then again, the victim who, according to P.W.2, was supposed to be in the field but appeared in the scene from some other place all on a sudden, was the third in the series to be stabbed by the appellant and, thus, was not his target. Though there is no specific admission by the appellant that he had stabbed the victim or the other injured witnesses, reading of the contents of Ext.96 does evince an act of retaliation spurred by sudden provocation resulting in a quarrel as well as a scuffle which ultimately, most unfortunately, cost the victim his life and left some others injured. The appellant too sustained injuries in the scuffle and there is evidence on record that one of the injuries was grievous, yet, the criminal law was surprisingly not set in motion to bring to book those responsible for inflicting such injury. It was in a sudden quarrel, which could have been provoked by the victim and P.W.2, that blows followed from each side. Most importantly, the circumstances in which the incident occurred does clearly negate any suggestion of premeditation in mind. That apart, it cannot be overlooked that while the victim was middle-aged, the appellant was in his late fifties. At the time of the alleged incident, apart from P.W.s 2 and 3, Shankarrao Fartode, Umrao Charde, Ramesh Korde (all three not examined) were present at the spot, as per the version of P.W.2. It is indeed improbable that in the presence of such persons, the appellant wielding a weapon like a knife would come to the spot with an intention to commit the offence of murder overpowering all of them without any sufficient reason or provocation. In our opinion, the trial court lacked in objectivity by not examining the facts and circumstances as to whether the situation was such as is likely to reasonably cause an apprehension in the mind of the appellant that there was imminent danger to his body, of either death or grievous hurt being caused to him, if he did not act in private defence. To impute intention to cause death or the intention to cause that particular injury, which proved fatal, in these circumstances seems to be unreasonable. 24. Exception 4 to section 300, IPC ordains that culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. The explanation thereto clarifies that it is immaterial in such cases which party offers the provocation or commits the first assault. Four requirements must be satisfied to invoke this exception, viz. (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel or unusual manner. 25. Taking an overall view of the matter, we are inclined to the opinion that the appellant was entitled to the benefit of Exception 4 to section 300, IPC. 26. The upshot of the above discussion is that this is not a case where the appellant could be convicted for murder of the victim. His conviction for murder and sentence of life imprisonment are liable to be set aside. It is ordered accordingly. 27. However, we think it proper to convict the appellant under section 304, Part II, IPC. Since the appellant has suffered imprisonment for more than nine years and he is presently in his late sixties, we consider incarceration for such period as adequate punishment. The appellant shall be released from custody forthwith, unless required in connection with any other case. 28. Since the appellant has already served the sentence imposed for commission of offence under section 307, IPC, based on a conviction which is highly suspect, we allow it to rest. 29. The appeal stands allowed to the extent indicated above. No 30. Before parting, we observe that this is a case where the police should have investigated the injuries suffered by the appellant too. The appellant also did not pursue any available remedy to right the wrong. However, in view of little less than a decade having passed since the incident took place, any direction to investigate at this distance of time may not yield any fruitful result. We, therefore, refrain from issuing such direction. JJ. ]...FOR ADMISSION and I.R. and IA No.184015/2019-EXEMPTION FROM Date : 03-03-2023 This matter was called on for pronouncement for judgment today. UPON hearing the counsel the Court made the following Hon’ble Mr. Justice Dipankar Datta pronounced the reportable judgment of the Bench comprising Hon’ble Mr. Justice S. Ravindra Bhat and His Lordship. The operative portion of the reportable judgment reads as “26. The upshot of the above discussion is that this is not a case where the appellant could be convicted for murder of the victim. His conviction for murder and sentence of life imprisonment are liable to be set aside. It is ordered accordingly. 27. However, we think it proper to convict the appellant under section 304, Part II, IPC. Since the appellant has suffered imprisonment for more than nine years and he is presently in his late sixties, we consider incarceration for such period as adequate punishment. The appellant shall be released from custody forthwith, unless required in connection with any other case. 28. Since the appellant has already served the sentence imposed for commission of offence under section 307, IPC, based on a conviction which is highly suspect, we allow it to rest.” The appeal stands allowed in terms of the All pending applications are disposed of. (Signed reportable judgment is placed on the file)
The Supreme Court recently said that if a person accused of a crime gives a written statement under a specific rule (Section 313(5) of the criminal procedure law), and the court officially accepts it, this statement must be considered a regular part of what the accused says in court under other related rules (Section 313(1) and (4)). The Court also explained that this written statement must be looked at alongside all the evidence the prosecution presents. This helps the court decide if the accused’s story is true or not. The statement’s contents should be compared with what seems likely to have happened, to see if it supports the accused or goes against them. When the judges, Justice S. Ravindra Bhat and Justice Dipankar Datta, discussed the rules in Section 313 of the criminal procedure law about questioning the accused person, they pointed out something important. It is not required for the accused to explain things the court asks about under Section 313. However, this rule offers protection and a valuable right. If the accused chooses to use this right, it can strongly influence the final decision of the case. This makes the process helpful rather than pointless. Factual Background This case was about a murder. The mother of the person who died filed a police report, which led to a formal police investigation (FIR) under laws about murder and attempted murder. Later, the person accused of the crime was arrested. The first court (Trial Court) decided that the accused had killed the person with a knife and also tried to murder three other people who were witnesses for the prosecution. The court believed the prosecution had proven its case with strong evidence, found the accused guilty, and gave him a life sentence. The accused then tried to challenge this decision in a higher court, the Bombay High Court, but that appeal was also rejected. Analysis by the Supreme Court The Supreme Court looked at the written statement the accused gave to the first court to explain his side of the story, based on Section 313 of the criminal procedure law. In this statement, the accused said he visited Katol every few months for rent. He claimed that during one visit, the person who died threatened him, and the three prosecution witnesses attacked him. He also said he tried to report this to the police, but they didn't take his complaint. The Court then referred to many previous court decisions about Section 313 and summarized the main rules that have been established. The Court briefly outlined some established rules about Section 313 of the criminal procedure law. First, this section is a crucial safeguard in a trial, helping an accused person prove their innocence. It is designed to allow the court to speak directly with the accused. The court has a duty to ask general questions about the case, so the accused can personally explain any evidence that seems to go against them. When questioned, the accused does not have to admit guilt and can simply deny or reject what the court suggests. In fact, an accused person might even admit to certain facts that look incriminating, but they do this to present a valid legal defense. An important protection is that the accused can make a statement without being aggressively questioned by the prosecution. However, any explanations the accused gives must not be looked at alone; they need to be considered along with all the evidence the prosecution has shown. This means a person cannot be found guilty based only on what they say under Section 313. While these statements are not made under oath and so are not formal evidence, the answers are still important for finding the truth and checking the accuracy of the prosecution's case. Additionally, an accused's statement cannot be cut into pieces, only using the parts that suggest guilt and ignoring those that suggest innocence. The entire statement must be read as a whole, for example, to see if the parts claiming innocence are genuine. If the accused presents a defense or offers a different version of events, the court must carefully study and consider their statements. Lastly, if the court fails to consider the accused's explanation for circumstances that seem to point to guilt, it could make the trial unfair or even put the guilty verdict at risk. The Court noted that after the prosecution finishes presenting its case, the first court (Trial Court) should carefully review all the evidence. It should find any details that suggest the accused is guilty and then create a list of questions for the accused to explain those details. Before 2009, when Section 313 was changed, only the court had to do this. The 2009 change meant the court could get help from the government lawyer (Public Prosecutor) and the accused’s lawyer (Defence Counsel) to prepare these questions. The goal was to make trials fair and quick. However, the Supreme Court pointed out that this ideal is often not met because ...often, the effort the trial court puts into this questioning doesn't achieve its purpose. This happens because the accused often gives answers that avoid the question or uses simple responses like "false," "I don't know," or "incorrect." Sometimes, this actually hurts the accused's case more than it helps. For example, if the accused doesn't properly explain things that only they would know, that could count against them. While this alone doesn't prove guilt, it becomes important when the court looks at all the facts together. The Court suggested that the questioning under Section 313 should be practical and truly help achieve justice. It found that in this specific case, neither the first court nor the High Court had even looked at the accused's written statement. The Supreme Court also saw that the first court didn't properly consider the accused's claim of self-defense, which seemed believable. The Court thought that if the accused, an elderly man, truly intended to murder someone, he wouldn't have tried to do it with a knife, in broad daylight, and with witnesses present. The Court decided that the accused deserved the benefit of a specific legal rule (Exception 4 to Section 300 of the Indian Penal Code). This rule says that killing someone is not murder if it happens without a plan, during a sudden fight fueled by strong emotion from a sudden argument, and without the person taking an unfair advantage or acting in a very cruel way. Because of this, the Supreme Court found him guilty of a lesser crime, under Section 304 of the Indian Penal Code, which is a type of killing that is less severe than murder. Since the accused had already spent 9 years in prison and was in his late sixties, the Court ordered him to be set free. Finally, the Court mentioned that the police should have looked into the injuries the accused had. But since nearly ten years had passed since the incident, the Court decided that asking for an investigation now would not be helpful. Section 313 of the Criminal Procedure law, from 1973, refers to a specific court process. Judges have often found that the time and effort they put into this process usually doesn't achieve the best outcome. This often happens because the person accused of a crime either gives unclear answers or uses simple replies like 'false,' 'I don't know,' or 'incorrect.' Many times, this actually hurts the accused person's case rather than helping it. For example, if the accused doesn't properly explain certain facts that only they would know, this can count against them. Even though such a fact alone doesn't prove guilt, it becomes important when the court looks at all the evidence and details of the case together. (Para 16)
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“Was’t Hamlet wronged Laertes? Never Hamlet. If Hamlet from himself be ta'en away, And when he's not himself does wrong Laertes, Then Hamlet does it not; Hamlet denies it. Who does it, then? His madness. if't be so, Hamlet is of the faction that is wronged; His madness is poor Hamlet's enemy.” 1. While acknowledging the hurt that he has caused to Laertes for causing the death of his father, whom he murdered by way of a mistaken identity, Hamlet pleads temporary madness. While pleading so, he disassociates himself from the act as if it was done by a third person and he was made to suffer the consequence. He thus pleads to treat him as a victim rather than an offender. Though the act of Hamlet does constitute a culpable homicide coming within the definition of Section 300 of the Indian Penal Code, 1860 an act of unsound mind would not attract the same. Through these lines, Shakespeare brings out the agony of a man having to justify his act of madness. 2. Raising the plea of insanity on the mandate of Section 84 of the Indian Penal Code, 1860 (hereinafter ‘the IPC’), the appellant seeks reversal of the order of conviction passed by the Division Bench of the High Court of Bombay at Goa, confirming the order of the Additional Sessions Judge, S.G. Margao-II. As we are dealing with the seminal issue of applicability of Section 84 of the IPC and in the light of the focus made by the counsel for the appellant, we do not propose to go into the merits. 3. We have heard Shri Aftab Ali Khan, the counsel appointed from the “84. Act of a person of unsound mind. - Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.” 4. Section 84 of the IPC recognizes only an act which could not be termed as an offence. It starts with the words “nothing is an offence”. The said words are a clear indication of the intendment behind this laudable provision. Such an act shall emanate from an unsound mind. Therefore, the existence of an unsound mind is a sine qua non to the applicability of the provision. A mere unsound mind per se would not suffice, and it should be to the extent of not knowing the nature of the act. Such a person is incapable of knowing the nature of the said act. Similarly, he does not stand to reason as to whether an act committed is either wrong or contrary to law. Needless to state, the element of incapacity emerging from an unsound mind shall be present at the time of commission. 5. The provision speaks about the act of a person of unsound mind. It is a very broad provision relatable to the incapacity, as aforesaid. The test is from the point of view of a prudent man. Therefore, a mere medical insanity cannot be said to mean unsoundness of mind. There may be a case where a person suffering from medical insanity would have committed an act, however, the test is one of legal insanity to attract the mandate of Section 84 of the IPC. There must be an inability of a person in knowing the nature of the act or to understand it to be either wrong or contrary to the law. 6. The aforesaid provision is founded on the maxim, actus non reum facit nisi mens sit rea, i.e., an act does not constitute guilt unless done with a guilty intention. It is a fundamental principle of criminal law that there has to be an element of mens rea in forming guilt with intention. A person of an unsound mind, who is incapable of knowing the consequence of an act, does not know that such an act is right or wrong. He may not even know that he has committed that act. When such is the position, he cannot be made to suffer punishment. This act cannot be termed as a mental rebellion constituting a deviant behaviour leading to a crime against society. He stands as a victim in need of help, and therefore, cannot be charged and tried for an offence. His position is that of a child not knowing either his action or the consequence of it. 7. We wish to place reliance on the following decisions of this Court:  Surendra Mishra v. State of Jharkhand (2011) 11 SCC 495 “11. In our opinion, an accused who seeks exoneration from liability of an act under Section 84 of the Penal Code is to prove legal insanity and not medical insanity. Expression "unsoundness of mind" has not been defined in the Penal Code and it has mainly been treated as equivalent to insanity. But the term “insanity” carries different meaning in different contexts and describes varying degrees of mental disorder. Every person who is suffering from mental disease is not ipso facto exempted from criminal liability. The mere fact that the accused is conceited, odd, irascible and his brain is not quite all right, or that the physical and mental ailments from which he suffered had rendered his intellect weak and affected his emotions or indulges in certain unusual acts, or had fits of insanity at short intervals or that he was subject to epileptic fits and there was abnormal behaviour or the behaviour is queer are not sufficient to attract the application of Section 84 of the Penal Code.”  Hari Singh Gond v. State of Madhya Pradesh (2008) 16 SCC “10. “7. Section 84 lays down the legal test of responsibility in cases of alleged unsoundness of mind. There, is no definition of "unsoundness of mind" in the IPC. The courts have, however, mainly treated this expression as equivalent to insanity. But the term ‘insanity’ itself has no precise definition. It is a term used to describe varying degrees of mental disorder. So, every person, who is mentally diseased, is not ipso facto exempted from criminal responsibility. A distinction is to be made between legal insanity and medical insanity. A court is concerned with legal insanity, and not with medical insanity...”  Bapu @ Gajraj Singh v. State of Rajasthan 2007 8 SCC 66 “10. Section 84 embodies the fundamental maxim of criminal law i.e. actus non reum facit nisi mens sit rea (an act does not constitute guilt unless done with a guilty intention). In order to constitute an offence, the intent and act must concur; but in the case of insane persons, no culpability is fastened on them as they have no free will (furios is nulla voluntas est). 11. The section itself provides that the benefit is available only after it is proved that at the time of committing the act, the accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or that even if he did not know it, it was either wrong or contrary to law then this section must be applied. The crucial point of time for deciding whether the benefit of this section should be given or not, is the material time when the offence takes place. In coming to that conclusion, the relevant circumstances are to be taken into consideration, it would be dangerous to admit the defence of insanity upon arguments derived merely from the character of the crime. It is only unsoundness of mind which naturally impairs the cognitive faculties of the mind that can form a ground of exemption from criminal responsibility. Stephen in History of the Criminal Law of England, Vol. II, p. 166 has observed that if a person cut off the head of a sleeping man because it would be great fun to see him looking for it when he woke up, would obviously be a case where the perpetrator of the act would be incapable of knowing the physical effects of his act. The law recognizes nothing but incapacity to realise the nature of the act and presumes that where a man's mind or his faculties of ratiocination are sufficiently dim to apprehend what he is doing, he must always be presumed to intend the consequence of the Section 105 of the Indian Evidence Act 1872 “105. Burden of proving that case of accused comes within exceptions. —When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, (45 of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.” 8. The burden of proof does lie on the accused to prove to the satisfaction of the Court that one is insane while doing the act prohibited by law. Such a burden gets discharged based on a prima facie case and reasonable materials produced on his behalf. The extent of probability is one of preponderance. This is for the reason that a person of unsound mind is not expected to prove his insanity beyond a reasonable doubt. Secondly, it is the collective responsibility of the person concerned, the Court and the prosecution to decipher the proof qua insanity by not treating it as adversarial. Though a person is presumed to be sane, once there are adequate materials available before the Court, the presumption gets discharged. 9. Section 105 of the Indian Evidence Act, which places the burden of proving, has its exceptions. Though, as a general principle, the onus is upon the person accused to bring his case under the exception, dealing with the case under Section 84 of the IPC, one has to apply the concept of preponderance of probabilities. The aforesaid provision has to be read along with Section 8 of the Indian Evidence Act. The better way to reconcile the aforesaid provision would be to have a look into the behaviour and conduct before, during and after the occurrence. 10. As Section 84 of the IPC has its laudable objective behind it, the prosecution and the Court have their distinct roles to play. The agency has to take up the investigation from the materials produced on behalf of the person claiming unsoundness. It has to satisfy itself that the case would not come within the purview of Section 84 of the IPC. 11. The Court on its part has to satisfy itself as to whether the act was done by a person with an unsound mind within the rigour of Section 84 of the IPC. 12. We wish to place reliance on the classical decision of this Court in Dahyabhai Chhaganbhai Thakkar v. State of Gujarat (AIR 1964 SC 1563), wherein the Court held that: “(7) The doctrine of burden of proof in the context of the plea of insanity may be stated in the following propositions: (1) The prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea; and the burden of proving that always rests on the prosecution from the beginning to the end of the trial. (2) There is a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by Section 84 of the Indian Penal Code: the accused may rebut it by placing before the court all the relevant evidence oral, documentary or circumstantial, but the burden of proof upon him is no higher than that rests upon a party to civil proceedings. (3) Even if the accused was not able to establish conclusively that he was insane at the time he committed the offence, the evidence placed before the court by the accused or by the prosecution may raise a reasonable doubt in the mind of the court as regards one or more of the ingredients of the offence, including mens rea of the accused and in that case the court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution was not discharged.” 13. This Court in the case of Bapu (supra) has held that: “8. …The onus of proving unsoundness of mind is on the accused. But where during the investigation previous history of insanity is revealed, it is the duty of an honest investigator to subject the accused to a medical examination and place that evidence before the court and if this is not done, it creates a serious infirmity in the prosecution case and the benefit of doubt has to be given to the accused. The onus, however, has to be discharged by producing evidence as to the conduct of the accused shortly prior to the offence and his conduct at the time or immediately afterwards, also by evidence of his mental condition and other relevant factors. 12. Mere abnormality of mind or partial delusion, irresistible impulse or compulsive behaviour of a psychopath affords no protection under Section 84 as the law contained in that section is still squarely based on the outdated M'Naughton rules of 19th century England. The provisions of Section 84 are in substance the same as those laid down in the answers of the Judges to the questions put to them by the House of Lords, in M'Naughton's case [(1843) 4 St Tr NS 847 (HL)]. Behaviour, antecedent, attendant and subsequent to the event, may be relevant in finding the mental condition of the accused at the time of the event, but not that remote in time. It is difficult to prove the precise state of the offender's mind at the time of the commission of the offence, but some indication thereof is often furnished by the conduct of the offender while committing it or immediately after the commission of the offence. A lucid interval of an insane person is not merely a cessation of the violent symptoms of the disorder, but a restoration of the faculties of the mind sufficiently to enable the person soundly to judge the act; but the expression does not necessarily mean complete or perfect restoration of the mental faculties to their original condition. So, if there is such a restoration, the person concerned can do the act with such reason, memory and judgment as to make it a legal act; but merely a cessation of the violent symptoms of the disorder is not sufficient.” 14. This Court in a recent decision in Devidas Loka Rathod v. State of Maharashtra (2018) 7 SCC 718, has held that: “11. Section 84 IPC carves out an exception, that an act will not be an offence, if done by a person, who at the time of doing the same, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or what he is doing is either wrong or contrary to law. But this onus on the accused, under Section 105 of the Evidence Act is not as stringent as on the prosecution to be established beyond all reasonable doubts. The accused has only to establish his defence on a preponderance of probability, as observed in Surendra Mishra v. State of Jharkhand (2011) 11 SCC 495 : (2011) 3 SCC (Cri) 232, after which the onus shall shift on the prosecution to establish the inapplicability of the exception. But, it is not every and any plea of unsoundness of mind that will suffice. The standard of test to be applied shall be of legal insanity and not medical insanity, as observed in State of Rajasthan v. Shera Ram (2012) 1 SCC 602 : (2012) 1 SCC (Cri) 406, as follows: (Shera Ram, SCC p. 614, para 19) “19…Once, a person is found to be suffering from mental disorder or mental deficiency, which takes within its ambit hallucinations, dementia, loss of memory and self-control, at all relevant times by way of appropriate documentary and oral evidence, the person concerned would be entitled to seek resort to the general exceptions from criminal liability.” 12. The crucial point of time for considering the defence plea of unsoundness of mind has to be with regard to the mental state of the accused at the time the offence was committed collated from evidence of conduct which preceded, attended and followed the crime as observed in Ratan Lal v. State of M.P. (1970) 3 SCC 533 : 1971 SCC (Cri) 139, as follows: (SCC pp. 533-34, para 2) “2. It is now well settled that the crucial point of time at which unsoundness of mind should be established is the time when the crime is actually committed and the burden of proving this lies on the accused. In Dahyabhai Chhaganbhai Thakkar v. State of Gujarat (1964) 7 SCR 361 : AIR 1964 SC 1563, it was laid down that ‘there is a rebuttable presumption that the accused was not insane. when he committed the crime, in the sense laid down by Section 84 of the Penal Code, the accused may rebut it by placing before the court all the relevant evidence- oral, documentary or circumstantial, but the burden of proof upon him is no higher than that which rests upon a party to civil proceedings’.” 13. If from the materials placed on record, a reasonable doubt is created in the mind of the Court with regard to the mental condition of the accused at the time of occurrence, he shall be entitled to the benefit of the reasonable doubt and consequent acquittal, as observed in Vijayee Singh v. State of U.P. (1990) 3 SCC 190 : 1990 SCC (Cri) 378.” 15. Chapter XXV of the Code of Criminal Procedure 1973 (hereinafter ‘Cr.P.C.’), though procedural in nature, also becomes substantive when it deals with an accused person of unsound mind. A well-laid procedure is contemplated under Sections 328 to 339 of Cr.P.C. There is not even a need for an application under Section 329 of Cr.P.C. in finding out as to whether an accused would be sound enough to stand a trial, rather it is the mandatory duty of the Court. Under Section 330, the Court can even go to the extent of discharging such a person if his inability to stand trial continues with a rigid chance of improvement. As per Section 334 of Cr.P.C., the judgment of the Court shall include a specific finding that the act was committed due to unsoundness of mind, though it was actually done. The reason is simple as there cannot be an acquittal on the ground of unsoundness of mind unless the act is actually done. 16. The whole idea under the provisions discussed is to facilitate a person of unsound mind to stand trial, not only because of his reasoning capacity, but also to treat him as the one who is having a disability. The role of the Court is to find the remedial measures and do complete justice. 17. Having noted the scope and ambit of Chapter XXV of Cr.P.C., including the provisions incorporated by way of amendments in the year 2009, one has to take into account the fact that the Court has a larger role to play while considering the case under Section 84 of the IPC. If a friendly approach is required to be followed during the trial, when adequate powers have been conferred upon the Court to even discharge an accused on the ground of an unsound mind, the same reasoning will have to be applied with much force when it comes to Section 84 of the IPC. 18. We find adequate materials on the assessment and evaluation of legal and medical insanity, which are totally different from each other. We shall furnish the following relevant material on medical jurisprudence: Jaisingh P. Modi, A Textbook on Medical Jurisprudence and Toxicology, 26th Edn. 2018, pg. 938 “Ascertainment of Mental Illness: Clinical assessment and Questions that would require to be addressed. -Forensic psychiatry attempts to help Courts determine the mental condition of the accused to determine whether the person could have intended to commit the crime and whether he is in a fit state to stand the trial. Medical insanity and legal insanity are not necessarily congruent. A mental illness that requires institutional care or administration of therapeutic care for medical insanity may not still be sufficient insulate the person from consequences of a criminal act and punishment if s/he is not legally insane. The assessment shall be to elicit such information as the law qualifies the general exception for proof of culpability under Section 84 of IPC. Is the accused mentally unsound? Is the mental unsoundness such that s/he is not capable of knowing (i) the nature of act; or (ii) the act is wrong, or (iii) contrary to law? These questions are directly related to testing the requirement of law. Is s/he capable of understanding the nature of proceedings in Court and stand trial? This shall be necessary to ensure that he has sufficient ability to consult with is counsel instruct him for a fair trial and defence. Every accused is bound to know the nature of proceedings against him/her. What was the mental condition of the accused, when the crime took place? Is it likely that the accused is malingering mental illness? The answers will point out to fixing the criminal responsibility to the acts attributed to him/her. Post-trial care may issue questions like: What is prognosis for cure for the mental illness? Will s/he be dangerous not to be let at large? In many a foreign jurisdiction, the questions may vary depending on the nature of proof of insanity and its intensity that is relevant under law to appraise criminal responsibility for the act: Could there have been an irresistible impulse to commit the act charged with? Was the mental condition so severe that s/he had no capacity to control his/her behaviour? Was s/he under any form of delusion to inflict the criminal assault to fend off falsely perceived personal harm or injury? The evaluation process.-The evaluation process generally includes, broadly, three major components or sources of data: (a) an interview with the accused (b) forensic assessment instruments, and (c) third party information including (but by no means limited to) collateral reports, witness statements, victim statements, police reports, and records of various sorts (i.e., mental health, treatment, school, medical, crime scene, etc.). Along with these sources, the role of delusions in evaluations of criminal responsibility (as the nature and quality of the accused 'delusionality') is often central in determining the extent of impairment in mental state at the time of the offence, especially in contested cases that may have a bearing on limiting responsibility if not completely exonerating him from the offence charged with. The role of the expert is not to present legal conclusions or formal psychopathological diagnoses. Rather, the role of examiner, as expert, is to import state of-the-art/science knowledge about the existence of various psychopathological conditions and their relationship to various behavioural, perceptual, cognitive and judgmental capacities into the legal/moral decisional process.” 19. Now, we shall come to the mental illness caused by Schizophrenia. We do not wish to go into the said issue as it being one within the exclusive knowledge of the experts, except to quote the relevant text available:  Jaisingh P. Modi, a textbook on Medical Jurisprudence and Toxicology, 26th Edn. 2018, pg. 922 “(ii) Schizophrenia. -Kraepelin (Emil Kraepelin, German psychiatrist.), in 1896, named this disease as 'dementia praecox’. In 1911, Eugen Bleuler (Paul Eugen Bleuler, Swiss psychiatrist and Eugenicist.) introduced the term 'schizophrenia' which literally means disintegration of mind. The term dementia praecox was changed because it implied that the disease always ended in dementia, which it did not. The term praecox meant that the disease developed at the time of puberty or adolescence, but in many cases developed outside that period. Since it was thought that the disease always ended in dementia, it meant a hopeless prognosis, which created a spirit of defeatism in the minds of people.” “Schizophrenia n. a severe *mental illness characterised by a disintegration of the process of thinking, of contact with reality, and of emotional responsiveness. Positive symptoms, such as *delusions and *hallucinations (especially of voices), are common, and any *Schneiderian first-rank symptoms are particularly indicative of the illness. Negative symptoms include social withdrawal, impairment of ego boundaries, and loss of energy and initiative. Schizophrenia is diagnosed only if symptoms persist for at least one month. The illness can spontaneously remit, run a course with infrequent or frequent relapses, or become chronic. The prognosis has improved with *anti-psychotic drugs and with vigorous psychological and social management and rehabilitation. The many causes include genetic factors, environmental stress, and possibly illicit drug use.”  American Psychiatric Association 2013, Diagnostic and Statistical Manual of Mental Disorders : DSM-5, 5th Edn, American Psychiatric Association, Washington DC. pg. “Schizophrenia spectrum and other psychotic disorders include schizophrenia, other psychotic disorders, and schizotypal (personality) disorder. They are defined by abnormalities in one or more of the following five domains: delusions, hallucinations, disorganized thinking (speech), grossly disorganized or abnormal motor behavior (including catatonia), and negative symptoms.” 20. We thus, appreciate that Schizophrenia is certainly an over-powering mental illness. 21. The case of the prosecution is that the appellant attacked the deceased at a store in which he was working, which belonged to the brother of his grandfather, who did not have any issue. There was no motive and the overt act attributed is that he assaulted the deceased with an iron locking plate without any provocation and premeditation. The occurrence took place on 14.05.2004 at 6:00 a.m. It was seen by PW2. He took the material object and came out of the shop and went to the bus stand. Thereafter, he came back to the shop and left it there. He once again walked to the bus stand and was sitting on a chair. He neither moved away from the said place nor made any attempt to leave. 22. A treatment was indeed given to him at the GMC Hospital, Bhiwani in the State of Haryana prior to the occurrence. He was taken as an in-patient for a period from 17.11.2003 till 26.11.2003. He was suffering from anxiety neurosis with reactive depression and had symptoms of acid peptic disease and mild hypertension. The treatment given to him was akin to one meant for schizophrenia. Accordingly, he was prescribed the medicine ‘Thioril’. 23. Before the Court of Sessions, an application under Section 329 of Cr.P.C. was filed on behalf of the appellant. Even while considering the application for bail, the Court noticed the inability of the appellant to understand the ongoing proceedings. Two doctors were examined as AWs 1 and 2, for the fact that he was indeed suffering from schizophrenia. AW2 was examined to show that he was taking the treatment earlier at GMC Hospital at Bhiwani. AW1 is the doctor who examined him after the occurrence on the orders of the trial court. She had deposed that he was indeed suffering from chronic schizophrenia. She was further examined as DW1. She once again made a clear deposition in tune with the certificate issued by her earlier that he was suffering from schizophrenia, and it must have been from the age of 14 or 15 years. The fact that he was unable to understand the act committed, and his subsequent incarceration was taken note of. While issuing the first certificate, this Government doctor in clear terms had stated that the appellant was not fit enough to stand the trial. However, she gave another certificate after treating him as an in-patient to the effect that he could stand trial thereafter. 24. The Court of Sessions and the High Court rendered the conviction on merits. The plea of insanity was also taken. It was accordingly rejected on the ground that PW6, the brother of the grandfather of the appellant, did not find any abnormality and that his mother has not been examined. Further, PW10 being the doctor who physically examined the accused after the incident, stated that the accused was mentally well. 25. However, the evidence of the Government doctor who deposed as AW1 and DW1 was brushed aside, so also the evidence of DW2, who was the uncle of the accused, and clearly spoke about the earlier treatment received by the accused. The evidence of AW2 was not even taken note of. The conduct, though subsequent, of the appellant, was ignored. 26. Before this Court, a report was called for from the District and Sessions Judge, Bhiwani as the medicine prescription and other documents could not be deciphered, and there was no discussion on the prior treatment given. We are of the view, that the aforesaid exercise would not have been warranted, had the evidence of AW2, which could be deciphered from the records furnished before us, been brought to the notice of the Court. In the report, it was stated that it could not be confirmed that the appellant was suffering from schizophrenia. We may note that the statements of the doctors were recorded after 16 years of the occurrence. In fact, they had also found it difficult to remember the nature of the treatment given to the appellant. In any case, that is a material which actually will go in favour of the appellant as the factum of treatment is not in dispute, particularly when it is corroborated by the evidence of AW2 on more than one occasion. 27. We may also add that this report merely records the statements of the doctors who have not been examined before the Court. Suffice it to say, that the evidence of the Government doctor as DW1 who withstood cross- examination ought to have been accepted. The mere fact that the appellant subsequently became fit to face the trial is sufficient enough to render an order of acquittal as it is indicative of his prior insanity. We do feel that both the Trial Court and the High Court were influenced by the nature of the act while ignoring the condition of the appellant and the fact that the burden on the accused is one of preponderance of probability. We have also been informed that the appellant has recovered fully and mixed well with the society. 28. For the aforesaid reasons, we are unable to give our imprimatur to the conviction rendered against the appellant as he is certainly entitled to the benefit conferred under Section 84 of the IPC. 29. The order dated 25.07.2006 of the trial court of conviction and sentence of the appellant punishable under Section 302 of the IPC and the judgment and order dated 02.06.2008 of the High Court affirming the same are set aside. 30. The appellant is acquitted of all the charges charged with. The bail bonds of the accused shall stand discharged. Pending application(s), if any, shall stand disposed of. Date : 12-01-2023 This appeal was called on for hearing today. UPON hearing the counsel the Court made the following The appeal is allowed in terms of the signed reportable judgment. Pending application(s), if any, shall stand disposed of. The concluding paragraph of the judgment reads “The appellant is acquitted of all the charges charged with. The bail bonds of the accused application(s), if any, shall stand disposed (signed reportable judgment containing the reasons is placed # signed order dated 12.1.2023 along with ROP has already been uploaded and sent to the concerned Branch. For the reasons to be recorded separately, the appeal is allowed. of conviction and sentence of the appellant punishable under Section 302 of the Indian Penal Code and the judgment and order dated 02.06.2008 of the High Court affirming the same are set aside. charged with. The bail bonds of the accused shall stand Pending application(s), if any, shall stand disposed Date : 12-01-2023 This appeal was called on for hearing today. UPON hearing the counsel the Court made the following For the reasons to be recorded separately, the appeal is allowed. of conviction and sentence of the appellant punishable under Section 302 of the Indian Penal Code and the judgment and order dated 02.06.2008 of the High Court affirming the same are set aside. charged with. The bail bonds of the accused shall stand discharged.
The Supreme Court recently accepted a defense arguing "insanity" and cancelled an earlier court's decision from 2006. That decision had found a man guilty of murder. The Court pointed out that the man, called the appellant, was being treated for schizophrenia when the crime happened in 2004. Records showed he had been hospitalized for mental illness at a government hospital before the event. Two doctors also spoke in court about his illness. But the first court (Trial Court) and the higher court (High Court) ignored these facts. In its ruling, the Supreme Court said that if someone accused of a crime claims insanity, they only need to prove it by a "preponderance of probability." This means they must show it is more likely than not that they were insane. The Court stated, "The accused person must prove to the court that they were insane when they broke the law. They can do this by presenting enough initial evidence and reasonable facts. This level of proof is called 'preponderance of probability' because someone with a mental illness shouldn't have to prove their insanity with absolute certainty, like proving something 'beyond a reasonable doubt'." Justices B R Gavai and M M Sundresh explained that it is a shared duty of the person accused, the court, and the lawyers for the state (prosecution) to figure out if insanity is truly a factor. They should not treat it like a fight between opposing sides. The court made these points while agreeing to the appeal from the accused person, who had been found guilty of murder by two lower courts. The state's lawyers (prosecution) claimed that the man (appellant) attacked the victim at a store where he worked, which was owned by his grandfather's brother. They said he hit the victim with an iron locking plate without any reason or planning. In its decision, the Supreme Court team of judges made these points about Section 84 of the Indian Penal Code. Existence of an unsound mind is a sine qua non Having an "unsound mind" is absolutely necessary for this law (Section 84) to apply. But simply having an unsound mind isn't enough; it must be so severe that the person doesn't understand what they are doing. Such a person cannot grasp what the act is. Also, they cannot understand if their action is wrong or goes against the law. It's important that this inability to understand, caused by an unsound mind, was present when the act happened. Mere medical insanity cannot be said to mean unsoundness of mind This law talks about actions done by someone with an "unsound mind." It's a very general rule about a person's inability to understand, as mentioned before. The court judges this from the viewpoint of a reasonable person. So, just having a medical diagnosis of insanity doesn't automatically mean an "unsound mind" in a legal sense. Someone might have a mental illness and still commit a crime. However, to use Section 84 of the IPC, the person must meet the test of "legal insanity." This means they must have been unable to know what they were doing, or to understand that their action was wrong or against the law. A person of an unsound mind does not know that such an act is right or wrong The legal saying 'Actus non reum facit nisi mens sit rea' means an act isn't considered a crime unless the person had a guilty mind or intention. It's a basic rule in criminal law that to be found guilty, there must be a guilty intention behind the action. A person with an "unsound mind" cannot understand what will happen because of their action and does not know if their action is right or wrong. They might not even realize they did the act. If this is the case, they should not be punished. This kind of act isn't a deliberate challenge to society or a criminal act. Instead, the person is seen as a victim who needs help and therefore cannot be formally accused and put on trial for a crime. Their situation is like that of a child who doesn't understand their actions or what might result from them. Collective responsibility of the person concerned, the Court and the prosecution to decipher the proof qua insanity The accused person has the job of proving to the court that they were insane when they broke the law. They can meet this requirement by presenting enough initial evidence and clear facts. This level of proof is called 'preponderance of probability,' because someone with a mental illness shouldn't have to prove their insanity with absolute certainty. Secondly, it's a shared duty of the person accused, the court, and the state's lawyers (prosecution) to figure out the truth about insanity, not treating it like a battle between opponents. Even though a person is usually assumed to be sane, that assumption goes away once enough evidence is shown to the court. Have a look into the behaviour and conduct before, during and after the occurrence Section 105 of the Indian Evidence Act generally says that the accused person must prove their defense. However, there are exceptions. While usually the accused has to prove their case, for cases involving Section 84 of the IPC (insanity), the court should use the 'preponderance of probabilities' standard. This part of the law should also be considered with Section 8 of the Indian Evidence Act. A good way to understand these rules together is to examine the person's behavior and actions before, during, and after the event. Prosecution and the Court have their distinct roles to play Because Section 84 of the IPC aims to achieve a good purpose, both the state's lawyers (prosecution) and the court have specific jobs. The investigating agency must look into the evidence provided by the person claiming mental unsoundness. They need to confirm that the case does not fall under Section 84 of the IPC. The court, for its part, must ensure that the act was truly done by someone with an "unsound mind" as strictly defined by Section 84 of the IPC. Scope and ambit of Chapter XXV of Cr.P.C There are clear rules set out in Sections 328 to 339 of the Cr.P.C. (Code of Criminal Procedure) for dealing with mentally ill accused persons. A court doesn't even need a special request under Section 329 of Cr.P.C. to check if an accused person is mentally fit enough for a trial; it's the court's required duty. Under Section 330, the court can even free such a person if their mental inability to stand trial seems permanent. According to Section 334 of Cr.P.C., the court's decision must specifically state that the act was committed because of an "unsound mind," even if the act clearly happened. The reason is that a person cannot be found 'not guilty' due to unsoundness of mind unless the act actually took place. The main purpose of these laws is to help a person with an "unsound mind" participate in their trial, not just because of their ability to reason, but also because they have a disability. The court's job is to find solutions and ensure fairness. Considering the details of Chapter XXV of Cr.P.C., including changes made in 2009, it's clear the court has a bigger role in cases under Section 84 of the IPC. If a helpful approach is needed during a trial, and courts have the power to even dismiss charges against an accused person due to an "unsound mind," then this same logic should be strongly applied when looking at cases under Section 84 of the IPC. Considering the evidence presented, the judges' panel noted that both the first court (Trial Court) and the higher court (High Court) were too focused on the nature of the crime. They overlooked the accused person's mental condition and the rule that the accused only needed to prove his case by a "preponderance of probability." The Supreme Court agreed with the appeal and found the accused not guilty. Case: Prakash Nayi @ Sen vs. State of Goa This summary is about a Supreme Court (SC) case, Criminal Appeal (CrA) 2010 of 2010, decided on January 12, 2023. Justices B R Gavai and M M Sundresh heard the case. Several lawyers represented the person appealing the decision. These notes explain rules from the Indian Penal Code (Section 84) and the Indian Evidence Act (Sections 105, 8). If someone is accused of a crime but claims they were mentally ill at the time, they have to prove this to the court. They must show enough initial evidence and reasonable facts to convince the court. They don't have to prove it "beyond a reasonable doubt," which is a very high standard. They only need to show it was more likely than not they were insane. A mentally unsound person can't prove their condition perfectly. The court, the accused, and the prosecution all share the job of figuring out if the person was insane. They treat it as a shared investigation, not a fight. Everyone is generally assumed to be mentally sound. But this assumption changes once enough evidence about mental illness is presented. The court must also examine the person's behavior and actions before, during, and after the crime. Section 84 of the Indian Penal Code only applies if a person truly has an "unsound mind" – meaning a severe mental illness. Just having a mental illness isn't enough; the illness must be so severe that the person didn't understand what they were doing. It's important to understand that "medical insanity" (a diagnosis from a doctor) is not the same as "legal insanity" in court. A person might have a medical condition but still understand their actions. For Section 84 to apply, the court looks for "legal insanity." This means the person must have been unable to know what they were doing, or unable to understand that their action was wrong or against the law. Chapter 25 of the Code of Criminal Procedure (Sections 328 to 339) outlines how courts should handle cases involving an accused person with a mental illness. These rules may seem like basic procedures. But they become very important and change how the law is applied when an accused person has an unsound mind. The court does not need an application to check if an accused person is mentally sound enough to stand trial. Instead, it is the court's duty to make sure this check happens. The main purpose of these rules is to help mentally ill people go through a trial. This is not only because of their ability to reason, but also to treat their mental illness as a disability. The court's job is to find ways to help them and ensure justice is fully served.
“Was’t Hamlet wronged Laertes? Never Hamlet. If Hamlet from himself be ta'en away, And when he's not himself does wrong Laertes, Then Hamlet does it not; Hamlet denies it. Who does it, then? His madness. if't be so, Hamlet is of the faction that is wronged; His madness is poor Hamlet's enemy.” 1. While acknowledging the hurt that he has caused to Laertes for causing the death of his father, whom he murdered by way of a mistaken identity, Hamlet pleads temporary madness. While pleading so, he disassociates himself from the act as if it was done by a third person and he was made to suffer the consequence. He thus pleads to treat him as a victim rather than an offender. Though the act of Hamlet does constitute a culpable homicide coming within the definition of Section 300 of the Indian Penal Code, 1860 an act of unsound mind would not attract the same. Through these lines, Shakespeare brings out the agony of a man having to justify his act of madness. 2. Raising the plea of insanity on the mandate of Section 84 of the Indian Penal Code, 1860 (hereinafter ‘the IPC’), the appellant seeks reversal of the order of conviction passed by the Division Bench of the High Court of Bombay at Goa, confirming the order of the Additional Sessions Judge, S.G. Margao-II. As we are dealing with the seminal issue of applicability of Section 84 of the IPC and in the light of the focus made by the counsel for the appellant, we do not propose to go into the merits. 3. We have heard Shri Aftab Ali Khan, the counsel appointed from the “84. Act of a person of unsound mind. - Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.” 4. Section 84 of the IPC recognizes only an act which could not be termed as an offence. It starts with the words “nothing is an offence”. The said words are a clear indication of the intendment behind this laudable provision. Such an act shall emanate from an unsound mind. Therefore, the existence of an unsound mind is a sine qua non to the applicability of the provision. A mere unsound mind per se would not suffice, and it should be to the extent of not knowing the nature of the act. Such a person is incapable of knowing the nature of the said act. Similarly, he does not stand to reason as to whether an act committed is either wrong or contrary to law. Needless to state, the element of incapacity emerging from an unsound mind shall be present at the time of commission. 5. The provision speaks about the act of a person of unsound mind. It is a very broad provision relatable to the incapacity, as aforesaid. The test is from the point of view of a prudent man. Therefore, a mere medical insanity cannot be said to mean unsoundness of mind. There may be a case where a person suffering from medical insanity would have committed an act, however, the test is one of legal insanity to attract the mandate of Section 84 of the IPC. There must be an inability of a person in knowing the nature of the act or to understand it to be either wrong or contrary to the law. 6. The aforesaid provision is founded on the maxim, actus non reum facit nisi mens sit rea, i.e., an act does not constitute guilt unless done with a guilty intention. It is a fundamental principle of criminal law that there has to be an element of mens rea in forming guilt with intention. A person of an unsound mind, who is incapable of knowing the consequence of an act, does not know that such an act is right or wrong. He may not even know that he has committed that act. When such is the position, he cannot be made to suffer punishment. This act cannot be termed as a mental rebellion constituting a deviant behaviour leading to a crime against society. He stands as a victim in need of help, and therefore, cannot be charged and tried for an offence. His position is that of a child not knowing either his action or the consequence of it. 7. We wish to place reliance on the following decisions of this Court:  Surendra Mishra v. State of Jharkhand (2011) 11 SCC 495 “11. In our opinion, an accused who seeks exoneration from liability of an act under Section 84 of the Penal Code is to prove legal insanity and not medical insanity. Expression "unsoundness of mind" has not been defined in the Penal Code and it has mainly been treated as equivalent to insanity. But the term “insanity” carries different meaning in different contexts and describes varying degrees of mental disorder. Every person who is suffering from mental disease is not ipso facto exempted from criminal liability. The mere fact that the accused is conceited, odd, irascible and his brain is not quite all right, or that the physical and mental ailments from which he suffered had rendered his intellect weak and affected his emotions or indulges in certain unusual acts, or had fits of insanity at short intervals or that he was subject to epileptic fits and there was abnormal behaviour or the behaviour is queer are not sufficient to attract the application of Section 84 of the Penal Code.”  Hari Singh Gond v. State of Madhya Pradesh (2008) 16 SCC “10. “7. Section 84 lays down the legal test of responsibility in cases of alleged unsoundness of mind. There, is no definition of "unsoundness of mind" in the IPC. The courts have, however, mainly treated this expression as equivalent to insanity. But the term ‘insanity’ itself has no precise definition. It is a term used to describe varying degrees of mental disorder. So, every person, who is mentally diseased, is not ipso facto exempted from criminal responsibility. A distinction is to be made between legal insanity and medical insanity. A court is concerned with legal insanity, and not with medical insanity...”  Bapu @ Gajraj Singh v. State of Rajasthan 2007 8 SCC 66 “10. Section 84 embodies the fundamental maxim of criminal law i.e. actus non reum facit nisi mens sit rea (an act does not constitute guilt unless done with a guilty intention). In order to constitute an offence, the intent and act must concur; but in the case of insane persons, no culpability is fastened on them as they have no free will (furios is nulla voluntas est). 11. The section itself provides that the benefit is available only after it is proved that at the time of committing the act, the accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or that even if he did not know it, it was either wrong or contrary to law then this section must be applied. The crucial point of time for deciding whether the benefit of this section should be given or not, is the material time when the offence takes place. In coming to that conclusion, the relevant circumstances are to be taken into consideration, it would be dangerous to admit the defence of insanity upon arguments derived merely from the character of the crime. It is only unsoundness of mind which naturally impairs the cognitive faculties of the mind that can form a ground of exemption from criminal responsibility. Stephen in History of the Criminal Law of England, Vol. II, p. 166 has observed that if a person cut off the head of a sleeping man because it would be great fun to see him looking for it when he woke up, would obviously be a case where the perpetrator of the act would be incapable of knowing the physical effects of his act. The law recognizes nothing but incapacity to realise the nature of the act and presumes that where a man's mind or his faculties of ratiocination are sufficiently dim to apprehend what he is doing, he must always be presumed to intend the consequence of the Section 105 of the Indian Evidence Act 1872 “105. Burden of proving that case of accused comes within exceptions. —When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, (45 of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.” 8. The burden of proof does lie on the accused to prove to the satisfaction of the Court that one is insane while doing the act prohibited by law. Such a burden gets discharged based on a prima facie case and reasonable materials produced on his behalf. The extent of probability is one of preponderance. This is for the reason that a person of unsound mind is not expected to prove his insanity beyond a reasonable doubt. Secondly, it is the collective responsibility of the person concerned, the Court and the prosecution to decipher the proof qua insanity by not treating it as adversarial. Though a person is presumed to be sane, once there are adequate materials available before the Court, the presumption gets discharged. 9. Section 105 of the Indian Evidence Act, which places the burden of proving, has its exceptions. Though, as a general principle, the onus is upon the person accused to bring his case under the exception, dealing with the case under Section 84 of the IPC, one has to apply the concept of preponderance of probabilities. The aforesaid provision has to be read along with Section 8 of the Indian Evidence Act. The better way to reconcile the aforesaid provision would be to have a look into the behaviour and conduct before, during and after the occurrence. 10. As Section 84 of the IPC has its laudable objective behind it, the prosecution and the Court have their distinct roles to play. The agency has to take up the investigation from the materials produced on behalf of the person claiming unsoundness. It has to satisfy itself that the case would not come within the purview of Section 84 of the IPC. 11. The Court on its part has to satisfy itself as to whether the act was done by a person with an unsound mind within the rigour of Section 84 of the IPC. 12. We wish to place reliance on the classical decision of this Court in Dahyabhai Chhaganbhai Thakkar v. State of Gujarat (AIR 1964 SC 1563), wherein the Court held that: “(7) The doctrine of burden of proof in the context of the plea of insanity may be stated in the following propositions: (1) The prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea; and the burden of proving that always rests on the prosecution from the beginning to the end of the trial. (2) There is a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by Section 84 of the Indian Penal Code: the accused may rebut it by placing before the court all the relevant evidence oral, documentary or circumstantial, but the burden of proof upon him is no higher than that rests upon a party to civil proceedings. (3) Even if the accused was not able to establish conclusively that he was insane at the time he committed the offence, the evidence placed before the court by the accused or by the prosecution may raise a reasonable doubt in the mind of the court as regards one or more of the ingredients of the offence, including mens rea of the accused and in that case the court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution was not discharged.” 13. This Court in the case of Bapu (supra) has held that: “8. …The onus of proving unsoundness of mind is on the accused. But where during the investigation previous history of insanity is revealed, it is the duty of an honest investigator to subject the accused to a medical examination and place that evidence before the court and if this is not done, it creates a serious infirmity in the prosecution case and the benefit of doubt has to be given to the accused. The onus, however, has to be discharged by producing evidence as to the conduct of the accused shortly prior to the offence and his conduct at the time or immediately afterwards, also by evidence of his mental condition and other relevant factors. 12. Mere abnormality of mind or partial delusion, irresistible impulse or compulsive behaviour of a psychopath affords no protection under Section 84 as the law contained in that section is still squarely based on the outdated M'Naughton rules of 19th century England. The provisions of Section 84 are in substance the same as those laid down in the answers of the Judges to the questions put to them by the House of Lords, in M'Naughton's case [(1843) 4 St Tr NS 847 (HL)]. Behaviour, antecedent, attendant and subsequent to the event, may be relevant in finding the mental condition of the accused at the time of the event, but not that remote in time. It is difficult to prove the precise state of the offender's mind at the time of the commission of the offence, but some indication thereof is often furnished by the conduct of the offender while committing it or immediately after the commission of the offence. A lucid interval of an insane person is not merely a cessation of the violent symptoms of the disorder, but a restoration of the faculties of the mind sufficiently to enable the person soundly to judge the act; but the expression does not necessarily mean complete or perfect restoration of the mental faculties to their original condition. So, if there is such a restoration, the person concerned can do the act with such reason, memory and judgment as to make it a legal act; but merely a cessation of the violent symptoms of the disorder is not sufficient.” 14. This Court in a recent decision in Devidas Loka Rathod v. State of Maharashtra (2018) 7 SCC 718, has held that: “11. Section 84 IPC carves out an exception, that an act will not be an offence, if done by a person, who at the time of doing the same, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or what he is doing is either wrong or contrary to law. But this onus on the accused, under Section 105 of the Evidence Act is not as stringent as on the prosecution to be established beyond all reasonable doubts. The accused has only to establish his defence on a preponderance of probability, as observed in Surendra Mishra v. State of Jharkhand (2011) 11 SCC 495 : (2011) 3 SCC (Cri) 232, after which the onus shall shift on the prosecution to establish the inapplicability of the exception. But, it is not every and any plea of unsoundness of mind that will suffice. The standard of test to be applied shall be of legal insanity and not medical insanity, as observed in State of Rajasthan v. Shera Ram (2012) 1 SCC 602 : (2012) 1 SCC (Cri) 406, as follows: (Shera Ram, SCC p. 614, para 19) “19…Once, a person is found to be suffering from mental disorder or mental deficiency, which takes within its ambit hallucinations, dementia, loss of memory and self-control, at all relevant times by way of appropriate documentary and oral evidence, the person concerned would be entitled to seek resort to the general exceptions from criminal liability.” 12. The crucial point of time for considering the defence plea of unsoundness of mind has to be with regard to the mental state of the accused at the time the offence was committed collated from evidence of conduct which preceded, attended and followed the crime as observed in Ratan Lal v. State of M.P. (1970) 3 SCC 533 : 1971 SCC (Cri) 139, as follows: (SCC pp. 533-34, para 2) “2. It is now well settled that the crucial point of time at which unsoundness of mind should be established is the time when the crime is actually committed and the burden of proving this lies on the accused. In Dahyabhai Chhaganbhai Thakkar v. State of Gujarat (1964) 7 SCR 361 : AIR 1964 SC 1563, it was laid down that ‘there is a rebuttable presumption that the accused was not insane. when he committed the crime, in the sense laid down by Section 84 of the Penal Code, the accused may rebut it by placing before the court all the relevant evidence- oral, documentary or circumstantial, but the burden of proof upon him is no higher than that which rests upon a party to civil proceedings’.” 13. If from the materials placed on record, a reasonable doubt is created in the mind of the Court with regard to the mental condition of the accused at the time of occurrence, he shall be entitled to the benefit of the reasonable doubt and consequent acquittal, as observed in Vijayee Singh v. State of U.P. (1990) 3 SCC 190 : 1990 SCC (Cri) 378.” 15. Chapter XXV of the Code of Criminal Procedure 1973 (hereinafter ‘Cr.P.C.’), though procedural in nature, also becomes substantive when it deals with an accused person of unsound mind. A well-laid procedure is contemplated under Sections 328 to 339 of Cr.P.C. There is not even a need for an application under Section 329 of Cr.P.C. in finding out as to whether an accused would be sound enough to stand a trial, rather it is the mandatory duty of the Court. Under Section 330, the Court can even go to the extent of discharging such a person if his inability to stand trial continues with a rigid chance of improvement. As per Section 334 of Cr.P.C., the judgment of the Court shall include a specific finding that the act was committed due to unsoundness of mind, though it was actually done. The reason is simple as there cannot be an acquittal on the ground of unsoundness of mind unless the act is actually done. 16. The whole idea under the provisions discussed is to facilitate a person of unsound mind to stand trial, not only because of his reasoning capacity, but also to treat him as the one who is having a disability. The role of the Court is to find the remedial measures and do complete justice. 17. Having noted the scope and ambit of Chapter XXV of Cr.P.C., including the provisions incorporated by way of amendments in the year 2009, one has to take into account the fact that the Court has a larger role to play while considering the case under Section 84 of the IPC. If a friendly approach is required to be followed during the trial, when adequate powers have been conferred upon the Court to even discharge an accused on the ground of an unsound mind, the same reasoning will have to be applied with much force when it comes to Section 84 of the IPC. 18. We find adequate materials on the assessment and evaluation of legal and medical insanity, which are totally different from each other. We shall furnish the following relevant material on medical jurisprudence: Jaisingh P. Modi, A Textbook on Medical Jurisprudence and Toxicology, 26th Edn. 2018, pg. 938 “Ascertainment of Mental Illness: Clinical assessment and Questions that would require to be addressed. -Forensic psychiatry attempts to help Courts determine the mental condition of the accused to determine whether the person could have intended to commit the crime and whether he is in a fit state to stand the trial. Medical insanity and legal insanity are not necessarily congruent. A mental illness that requires institutional care or administration of therapeutic care for medical insanity may not still be sufficient insulate the person from consequences of a criminal act and punishment if s/he is not legally insane. The assessment shall be to elicit such information as the law qualifies the general exception for proof of culpability under Section 84 of IPC. Is the accused mentally unsound? Is the mental unsoundness such that s/he is not capable of knowing (i) the nature of act; or (ii) the act is wrong, or (iii) contrary to law? These questions are directly related to testing the requirement of law. Is s/he capable of understanding the nature of proceedings in Court and stand trial? This shall be necessary to ensure that he has sufficient ability to consult with is counsel instruct him for a fair trial and defence. Every accused is bound to know the nature of proceedings against him/her. What was the mental condition of the accused, when the crime took place? Is it likely that the accused is malingering mental illness? The answers will point out to fixing the criminal responsibility to the acts attributed to him/her. Post-trial care may issue questions like: What is prognosis for cure for the mental illness? Will s/he be dangerous not to be let at large? In many a foreign jurisdiction, the questions may vary depending on the nature of proof of insanity and its intensity that is relevant under law to appraise criminal responsibility for the act: Could there have been an irresistible impulse to commit the act charged with? Was the mental condition so severe that s/he had no capacity to control his/her behaviour? Was s/he under any form of delusion to inflict the criminal assault to fend off falsely perceived personal harm or injury? The evaluation process.-The evaluation process generally includes, broadly, three major components or sources of data: (a) an interview with the accused (b) forensic assessment instruments, and (c) third party information including (but by no means limited to) collateral reports, witness statements, victim statements, police reports, and records of various sorts (i.e., mental health, treatment, school, medical, crime scene, etc.). Along with these sources, the role of delusions in evaluations of criminal responsibility (as the nature and quality of the accused 'delusionality') is often central in determining the extent of impairment in mental state at the time of the offence, especially in contested cases that may have a bearing on limiting responsibility if not completely exonerating him from the offence charged with. The role of the expert is not to present legal conclusions or formal psychopathological diagnoses. Rather, the role of examiner, as expert, is to import state of-the-art/science knowledge about the existence of various psychopathological conditions and their relationship to various behavioural, perceptual, cognitive and judgmental capacities into the legal/moral decisional process.” 19. Now, we shall come to the mental illness caused by Schizophrenia. We do not wish to go into the said issue as it being one within the exclusive knowledge of the experts, except to quote the relevant text available:  Jaisingh P. Modi, a textbook on Medical Jurisprudence and Toxicology, 26th Edn. 2018, pg. 922 “(ii) Schizophrenia. -Kraepelin (Emil Kraepelin, German psychiatrist. ), in 1896, named this disease as 'dementia praecox’. In 1911, Eugen Bleuler (Paul Eugen Bleuler, Swiss psychiatrist and Eugenicist.) introduced the term 'schizophrenia' which literally means disintegration of mind. The term dementia praecox was changed because it implied that the disease always ended in dementia, which it did not. The term praecox meant that the disease developed at the time of puberty or adolescence, but in many cases developed outside that period. Since it was thought that the disease always ended in dementia, it meant a hopeless prognosis, which created a spirit of defeatism in the minds of people.” “Schizophrenia n. a severe *mental illness characterised by a disintegration of the process of thinking, of contact with reality, and of emotional responsiveness. Positive symptoms, such as *delusions and *hallucinations (especially of voices), are common, and any *Schneiderian first-rank symptoms are particularly indicative of the illness. Negative symptoms include social withdrawal, impairment of ego boundaries, and loss of energy and initiative. Schizophrenia is diagnosed only if symptoms persist for at least one month. The illness can spontaneously remit, run a course with infrequent or frequent relapses, or become chronic. The prognosis has improved with *anti-psychotic drugs and with vigorous psychological and social management and rehabilitation. The many causes include genetic factors, environmental stress, and possibly illicit drug use.”  American Psychiatric Association 2013, Diagnostic and Statistical Manual of Mental Disorders : DSM-5, 5th Edn, American Psychiatric Association, Washington DC. pg. “Schizophrenia spectrum and other psychotic disorders include schizophrenia, other psychotic disorders, and schizotypal (personality) disorder. They are defined by abnormalities in one or more of the following five domains: delusions, hallucinations, disorganized thinking (speech), grossly disorganized or abnormal motor behavior (including catatonia), and negative symptoms.” 20. We thus, appreciate that Schizophrenia is certainly an over-powering mental illness. 21. The case of the prosecution is that the appellant attacked the deceased at a store in which he was working, which belonged to the brother of his grandfather, who did not have any issue. There was no motive and the overt act attributed is that he assaulted the deceased with an iron locking plate without any provocation and premeditation. The occurrence took place on 14.05.2004 at 6:00 a.m. It was seen by PW2. He took the material object and came out of the shop and went to the bus stand. Thereafter, he came back to the shop and left it there. He once again walked to the bus stand and was sitting on a chair. He neither moved away from the said place nor made any attempt to leave. 22. A treatment was indeed given to him at the GMC Hospital, Bhiwani in the State of Haryana prior to the occurrence. He was taken as an in-patient for a period from 17.11.2003 till 26.11.2003. He was suffering from anxiety neurosis with reactive depression and had symptoms of acid peptic disease and mild hypertension. The treatment given to him was akin to one meant for schizophrenia. Accordingly, he was prescribed the medicine ‘Thioril’. 23. Before the Court of Sessions, an application under Section 329 of Cr.P.C. was filed on behalf of the appellant. Even while considering the application for bail, the Court noticed the inability of the appellant to understand the ongoing proceedings. Two doctors were examined as AWs 1 and 2, for the fact that he was indeed suffering from schizophrenia. AW2 was examined to show that he was taking the treatment earlier at GMC Hospital at Bhiwani. AW1 is the doctor who examined him after the occurrence on the orders of the trial court. She had deposed that he was indeed suffering from chronic schizophrenia. She was further examined as DW1. She once again made a clear deposition in tune with the certificate issued by her earlier that he was suffering from schizophrenia, and it must have been from the age of 14 or 15 years. The fact that he was unable to understand the act committed, and his subsequent incarceration was taken note of. While issuing the first certificate, this Government doctor in clear terms had stated that the appellant was not fit enough to stand the trial. However, she gave another certificate after treating him as an in-patient to the effect that he could stand trial thereafter. 24. The Court of Sessions and the High Court rendered the conviction on merits. The plea of insanity was also taken. It was accordingly rejected on the ground that PW6, the brother of the grandfather of the appellant, did not find any abnormality and that his mother has not been examined. Further, PW10 being the doctor who physically examined the accused after the incident, stated that the accused was mentally well. 25. However, the evidence of the Government doctor who deposed as AW1 and DW1 was brushed aside, so also the evidence of DW2, who was the uncle of the accused, and clearly spoke about the earlier treatment received by the accused. The evidence of AW2 was not even taken note of. The conduct, though subsequent, of the appellant, was ignored. 26. Before this Court, a report was called for from the District and Sessions Judge, Bhiwani as the medicine prescription and other documents could not be deciphered, and there was no discussion on the prior treatment given. We are of the view, that the aforesaid exercise would not have been warranted, had the evidence of AW2, which could be deciphered from the records furnished before us, been brought to the notice of the Court. In the report, it was stated that it could not be confirmed that the appellant was suffering from schizophrenia. We may note that the statements of the doctors were recorded after 16 years of the occurrence. In fact, they had also found it difficult to remember the nature of the treatment given to the appellant. In any case, that is a material which actually will go in favour of the appellant as the factum of treatment is not in dispute, particularly when it is corroborated by the evidence of AW2 on more than one occasion. 27. We may also add that this report merely records the statements of the doctors who have not been examined before the Court. Suffice it to say, that the evidence of the Government doctor as DW1 who withstood cross- examination ought to have been accepted. The mere fact that the appellant subsequently became fit to face the trial is sufficient enough to render an order of acquittal as it is indicative of his prior insanity. We do feel that both the Trial Court and the High Court were influenced by the nature of the act while ignoring the condition of the appellant and the fact that the burden on the accused is one of preponderance of probability. We have also been informed that the appellant has recovered fully and mixed well with the society. 28. For the aforesaid reasons, we are unable to give our imprimatur to the conviction rendered against the appellant as he is certainly entitled to the benefit conferred under Section 84 of the IPC. 29. The order dated 25.07.2006 of the trial court of conviction and sentence of the appellant punishable under Section 302 of the IPC and the judgment and order dated 02.06.2008 of the High Court affirming the same are set aside. 30. The appellant is acquitted of all the charges charged with. The bail bonds of the accused shall stand discharged. Pending application(s), if any, shall stand disposed of. Date : 12-01-2023 This appeal was called on for hearing today. UPON hearing the counsel the Court made the following The appeal is allowed in terms of the signed reportable judgment. Pending application(s), if any, shall stand disposed of. The concluding paragraph of the judgment reads “The appellant is acquitted of all the charges charged with. The bail bonds of the accused application(s), if any, shall stand disposed (signed reportable judgment containing the reasons is placed # signed order dated 12.1.2023 along with ROP has already been uploaded and sent to the concerned Branch. For the reasons to be recorded separately, the appeal is allowed. of conviction and sentence of the appellant punishable under Section 302 of the Indian Penal Code and the judgment and order dated 02.06.2008 of the High Court affirming the same are set aside. charged with. The bail bonds of the accused shall stand Pending application(s), if any, shall stand disposed Date : 12-01-2023 This appeal was called on for hearing today. UPON hearing the counsel the Court made the following For the reasons to be recorded separately, the appeal is allowed. of conviction and sentence of the appellant punishable under Section 302 of the Indian Penal Code and the judgment and order dated 02.06.2008 of the High Court affirming the same are set aside. charged with. The bail bonds of the accused shall stand discharged.
The Supreme Court recently accepted a defense arguing "insanity" and cancelled an earlier court's decision from 2006. That decision had found a man guilty of murder. The Court pointed out that the man, called the appellant, was being treated for schizophrenia when the crime happened in 2004. Records showed he had been hospitalized for mental illness at a government hospital before the event. Two doctors also spoke in court about his illness. But the first court (Trial Court) and the higher court (High Court) ignored these facts. In its ruling, the Supreme Court said that if someone accused of a crime claims insanity, they only need to prove it by a "preponderance of probability." This means they must show it is more likely than not that they were insane. The Court stated, "The accused person must prove to the court that they were insane when they broke the law. They can do this by presenting enough initial evidence and reasonable facts. This level of proof is called 'preponderance of probability' because someone with a mental illness shouldn't have to prove their insanity with absolute certainty, like proving something 'beyond a reasonable doubt'." Justices B R Gavai and M M Sundresh explained that it is a shared duty of the person accused, the court, and the lawyers for the state (prosecution) to figure out if insanity is truly a factor. They should not treat it like a fight between opposing sides. The court made these points while agreeing to the appeal from the accused person, who had been found guilty of murder by two lower courts. The state's lawyers (prosecution) claimed that the man (appellant) attacked the victim at a store where he worked, which was owned by his grandfather's brother. They said he hit the victim with an iron locking plate without any reason or planning. In its decision, the Supreme Court team of judges made these points about Section 84 of the Indian Penal Code. Existence of an unsound mind is a sine qua non Having an "unsound mind" is absolutely necessary for this law (Section 84) to apply. But simply having an unsound mind isn't enough; it must be so severe that the person doesn't understand what they are doing. Such a person cannot grasp what the act is. Also, they cannot understand if their action is wrong or goes against the law. It's important that this inability to understand, caused by an unsound mind, was present when the act happened. Mere medical insanity cannot be said to mean unsoundness of mind This law talks about actions done by someone with an "unsound mind." It's a very general rule about a person's inability to understand, as mentioned before. The court judges this from the viewpoint of a reasonable person. So, just having a medical diagnosis of insanity doesn't automatically mean an "unsound mind" in a legal sense. Someone might have a mental illness and still commit a crime. However, to use Section 84 of the IPC, the person must meet the test of "legal insanity." This means they must have been unable to know what they were doing, or to understand that their action was wrong or against the law. A person of an unsound mind does not know that such an act is right or wrong The legal saying 'Actus non reum facit nisi mens sit rea' means an act isn't considered a crime unless the person had a guilty mind or intention. It's a basic rule in criminal law that to be found guilty, there must be a guilty intention behind the action. A person with an "unsound mind" cannot understand what will happen because of their action and does not know if their action is right or wrong. They might not even realize they did the act. If this is the case, they should not be punished. This kind of act isn't a deliberate challenge to society or a criminal act. Instead, the person is seen as a victim who needs help and therefore cannot be formally accused and put on trial for a crime. Their situation is like that of a child who doesn't understand their actions or what might result from them. Collective responsibility of the person concerned, the Court and the prosecution to decipher the proof qua insanity The accused person has the job of proving to the court that they were insane when they broke the law. They can meet this requirement by presenting enough initial evidence and clear facts. This level of proof is called 'preponderance of probability,' because someone with a mental illness shouldn't have to prove their insanity with absolute certainty. Secondly, it's a shared duty of the person accused, the court, and the state's lawyers (prosecution) to figure out the truth about insanity, not treating it like a battle between opponents. Even though a person is usually assumed to be sane, that assumption goes away once enough evidence is shown to the court. Have a look into the behaviour and conduct before, during and after the occurrence Section 105 of the Indian Evidence Act generally says that the accused person must prove their defense. However, there are exceptions. While usually the accused has to prove their case, for cases involving Section 84 of the IPC (insanity), the court should use the 'preponderance of probabilities' standard. This part of the law should also be considered with Section 8 of the Indian Evidence Act. A good way to understand these rules together is to examine the person's behavior and actions before, during, and after the event. Prosecution and the Court have their distinct roles to play Because Section 84 of the IPC aims to achieve a good purpose, both the state's lawyers (prosecution) and the court have specific jobs. The investigating agency must look into the evidence provided by the person claiming mental unsoundness. They need to confirm that the case does not fall under Section 84 of the IPC. The court, for its part, must ensure that the act was truly done by someone with an "unsound mind" as strictly defined by Section 84 of the IPC. Scope and ambit of Chapter XXV of Cr.P.C There are clear rules set out in Sections 328 to 339 of the Cr.P.C. (Code of Criminal Procedure) for dealing with mentally ill accused persons. A court doesn't even need a special request under Section 329 of Cr.P.C. to check if an accused person is mentally fit enough for a trial; it's the court's required duty. Under Section 330, the court can even free such a person if their mental inability to stand trial seems permanent. According to Section 334 of Cr.P.C., the court's decision must specifically state that the act was committed because of an "unsound mind," even if the act clearly happened. The reason is that a person cannot be found 'not guilty' due to unsoundness of mind unless the act actually took place. The main purpose of these laws is to help a person with an "unsound mind" participate in their trial, not just because of their ability to reason, but also because they have a disability. The court's job is to find solutions and ensure fairness. Considering the details of Chapter XXV of Cr.P.C., including changes made in 2009, it's clear the court has a bigger role in cases under Section 84 of the IPC. If a helpful approach is needed during a trial, and courts have the power to even dismiss charges against an accused person due to an "unsound mind," then this same logic should be strongly applied when looking at cases under Section 84 of the IPC. Considering the evidence presented, the judges' panel noted that both the first court (Trial Court) and the higher court (High Court) were too focused on the nature of the crime. They overlooked the accused person's mental condition and the rule that the accused only needed to prove his case by a "preponderance of probability." The Supreme Court agreed with the appeal and found the accused not guilty. Case: Prakash Nayi @ Sen vs. State of Goa This summary is about a Supreme Court (SC) case, Criminal Appeal (CrA) 2010 of 2010, decided on January 12, 2023. Justices B R Gavai and M M Sundresh heard the case. Several lawyers represented the person appealing the decision. These notes explain rules from the Indian Penal Code (Section 84) and the Indian Evidence Act (Sections 105, 8). If someone is accused of a crime but claims they were mentally ill at the time, they have to prove this to the court. They must show enough initial evidence and reasonable facts to convince the court. They don't have to prove it "beyond a reasonable doubt," which is a very high standard. They only need to show it was more likely than not they were insane. A mentally unsound person can't prove their condition perfectly. The court, the accused, and the prosecution all share the job of figuring out if the person was insane. They treat it as a shared investigation, not a fight. Everyone is generally assumed to be mentally sound. But this assumption changes once enough evidence about mental illness is presented. The court must also examine the person's behavior and actions before, during, and after the crime. Section 84 of the Indian Penal Code only applies if a person truly has an "unsound mind" – meaning a severe mental illness. Just having a mental illness isn't enough; the illness must be so severe that the person didn't understand what they were doing. It's important to understand that "medical insanity" (a diagnosis from a doctor) is not the same as "legal insanity" in court. A person might have a medical condition but still understand their actions. For Section 84 to apply, the court looks for "legal insanity." This means the person must have been unable to know what they were doing, or unable to understand that their action was wrong or against the law. Chapter 25 of the Code of Criminal Procedure (Sections 328 to 339) outlines how courts should handle cases involving an accused person with a mental illness. These rules may seem like basic procedures. But they become very important and change how the law is applied when an accused person has an unsound mind. The court does not need an application to check if an accused person is mentally sound enough to stand trial. Instead, it is the court's duty to make sure this check happens. The main purpose of these rules is to help mentally ill people go through a trial. This is not only because of their ability to reason, but also to treat their mental illness as a disability. The court's job is to find ways to help them and ensure justice is fully served.
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For the State : Mr. Saswata Gopal Mukherjee, Ld.PP For the Union of India : Ms. Chandreyi Alam Heard on: 17.05.2022 This is an application challenging an order dated 19.03.2021 passed by the learned Additional Chief Judicial Magistrate, Bongaon, North 24 Parganas in connection with G.R. Case No. 3982 of 2017 under Sections 370, 371, 120B and 34 of the Indian Penal Code. Learned counsel for the petitioner submits as follows. The petitioner is a victim of human trafficking. She is a Bangladeshi national who was trafficked to India for the purpose of exploitation in the flesh trade. In connection with the present case, she was recovered on 09.12.2017. She was sent to Lilua Home at Howrah for safe custody on 10.12.2017. Since then she is in the protective custody of the said Home. In the meantime, a charge-sheet was submitted. But, the Investigating Agency could not apprehend the accused. While the accused are at large, the petitioner being the victim in this case, is languishing in protective custody. She wants to return to her own country. She had, accordingly, made an application for repatriation to her own country. However, by an order dated 19.03.2021, the learned Magistrate held that return of the victim girl at the stage would damage the chances of the trial in this case. This cannot be a ground to impair the liberty of the present petitioner. Learned Public Prosecutor appearing on behalf of the State relies on a report dated 10.05.2022 filed earlier and submits as follows. The State would not come in the way if a direction is passed to grant liberty for repatriation of the victim girl to her own country. She can always come back with necessary documents to depose in the Learned counsel for the Union of India also supports the contention of the State and submits that the opposite party no.3 would not have any objection, if liberty is granted to have the victim lady repatriated to her country. I have heard the submissions of the learned counsels appearing on behalf of the petitioner, the State and the Union of India and have perused the revision petition. It appears that the petitioner is the victim lady in a case under Sections 370, 371, 120B, 34 of the Indian Penal Code and Sections 3, 4, 5, 7 of the Immoral Traffic Act. She was allegedly trafficked to India for the purpose of commercial sexual exploitation. After her recovery on 09.12.2017, she had been kept in protective custody in a Home. At present, she wants to return to her own country. Success in the trial cannot be a ground to stall repatriation of the victim lady to her own country. Afterall, she is a victim in this case and while the accused are at large, the victim is languishing in protective custody. In view of the above and in the interest of justice, I partly set aside the order dated 19.03.2021 and direct that there shall be no impediment in having victim repatriated to her own country. Accordingly, necessary steps may be taken by the concerned authorities. However, the petitioner shall be at liberty to return to India upon carrying necessary travel documents and depose in the trial in question. With these observations, the revisional application is disposed Urgent photostat certified copies of this order may be delivered to the learned Advocates for the parties, if applied for, upon compliance of all formalities. The parties shall act on the basis of copy of the order downloaded from the official website of this Court. Let a copy of this order be sent down to the learned trial Court at the earliest.
The Calcutta High Court recently helped a victim of human trafficking. The court said that making a court case harder to win cannot be a reason to stop sending a victim back to her home country from a safe place. Justice Jay Sengupta was looking at an appeal. An appeal is a request to a higher court to change a decision made by a lower court. In this case, a single judge had rejected the victim's request to go back to her country. The judge said sending her home would harm the chances of the trial succeeding. In this specific case, the victim is a woman from Bangladesh. She was forced to come to India to work in the sex trade. After police rescued her on December 9, 2017, she stayed in a safe shelter. The police started a case against the people accused of these crimes. They filed charges under laws against human trafficking and immoral trade. However, the police have not yet caught the people accused of the crime. The Court stated that winning a trial cannot be a reason to stop the victim from returning home. The Court stressed, "Winning the trial cannot be a reason to stop the victim from going back to her country. After all, she is the victim in this case. The people accused of the crime are free, while the victim is stuck in protective custody." Therefore, the Court canceled the earlier order. It also said that nothing should stop the victim from being sent back to her own country. The relevant government groups were told to do what was needed to make this happen. The Court also allowed the victim to return to India later, if she has the proper travel papers, to give her testimony in the trial.
For the State : Mr. Saswata Gopal Mukherjee, Ld.PP For the Union of India : Ms. Chandreyi Alam Heard on: 17.05.2022 This is an application challenging an order dated 19.03.2021 passed by the learned Additional Chief Judicial Magistrate, Bongaon, North 24 Parganas in connection with G.R. Case No. 3982 of 2017 under Sections 370, 371, 120B and 34 of the Indian Penal Code. Learned counsel for the petitioner submits as follows. The petitioner is a victim of human trafficking. She is a Bangladeshi national who was trafficked to India for the purpose of exploitation in the flesh trade. In connection with the present case, she was recovered on 09.12.2017. She was sent to Lilua Home at Howrah for safe custody on 10.12.2017. Since then she is in the protective custody of the said Home. In the meantime, a charge-sheet was submitted. But, the Investigating Agency could not apprehend the accused. While the accused are at large, the petitioner being the victim in this case, is languishing in protective custody. She wants to return to her own country. She had, accordingly, made an application for repatriation to her own country. However, by an order dated 19.03.2021, the learned Magistrate held that return of the victim girl at the stage would damage the chances of the trial in this case. This cannot be a ground to impair the liberty of the present petitioner. Learned Public Prosecutor appearing on behalf of the State relies on a report dated 10.05.2022 filed earlier and submits as follows. The State would not come in the way if a direction is passed to grant liberty for repatriation of the victim girl to her own country. She can always come back with necessary documents to depose in the Learned counsel for the Union of India also supports the contention of the State and submits that the opposite party no.3 would not have any objection, if liberty is granted to have the victim lady repatriated to her country. I have heard the submissions of the learned counsels appearing on behalf of the petitioner, the State and the Union of India and have perused the revision petition. It appears that the petitioner is the victim lady in a case under Sections 370, 371, 120B, 34 of the Indian Penal Code and Sections 3, 4, 5, 7 of the Immoral Traffic Act. She was allegedly trafficked to India for the purpose of commercial sexual exploitation. After her recovery on 09.12.2017, she had been kept in protective custody in a Home. At present, she wants to return to her own country. Success in the trial cannot be a ground to stall repatriation of the victim lady to her own country. Afterall, she is a victim in this case and while the accused are at large, the victim is languishing in protective custody. In view of the above and in the interest of justice, I partly set aside the order dated 19.03.2021 and direct that there shall be no impediment in having victim repatriated to her own country. Accordingly, necessary steps may be taken by the concerned authorities. However, the petitioner shall be at liberty to return to India upon carrying necessary travel documents and depose in the trial in question. With these observations, the revisional application is disposed Urgent photostat certified copies of this order may be delivered to the learned Advocates for the parties, if applied for, upon compliance of all formalities. The parties shall act on the basis of copy of the order downloaded from the official website of this Court. Let a copy of this order be sent down to the learned trial Court at the earliest.
The Calcutta High Court recently helped a victim of human trafficking. The court said that making a court case harder to win cannot be a reason to stop sending a victim back to her home country from a safe place. Justice Jay Sengupta was looking at an appeal. An appeal is a request to a higher court to change a decision made by a lower court. In this case, a single judge had rejected the victim's request to go back to her country. The judge said sending her home would harm the chances of the trial succeeding. In this specific case, the victim is a woman from Bangladesh. She was forced to come to India to work in the sex trade. After police rescued her on December 9, 2017, she stayed in a safe shelter. The police started a case against the people accused of these crimes. They filed charges under laws against human trafficking and immoral trade. However, the police have not yet caught the people accused of the crime. The Court stated that winning a trial cannot be a reason to stop the victim from returning home. The Court stressed, "Winning the trial cannot be a reason to stop the victim from going back to her country. After all, she is the victim in this case. The people accused of the crime are free, while the victim is stuck in protective custody." Therefore, the Court canceled the earlier order. It also said that nothing should stop the victim from being sent back to her own country. The relevant government groups were told to do what was needed to make this happen. The Court also allowed the victim to return to India later, if she has the proper travel papers, to give her testimony in the trial.
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2. The appellants before us seek to impugn the judgment dated 4th September, 2017, passed by the Delhi High Court in 3. The brief facts, necessary for the adjudication of this appeal are as follows: on the intervening night of the 18 th/19th May, 2010, the vehicle in which parents of the Appellants were travelling rammed into a truck, near Phagwara, Punjab. Resultantly, they succumbed to the injuries sustained in the accident. The car was plying other relatives of the Appellants and the deceased. Thereafter, F.I.R. no. 76/10, was registered in PS Sadar Phagwara, Punjab under Sections 249, 304­A, 427 of the Indian Penal Code, 1860 in this regard. It may be relevant to note that the vehicle was, during the relevant period, insured by the National Insurance Co. Ltd. (hereinafter, referred to as NIC), the Respondent No. 1 herein. 4. The Appellants instituted a claim petition before the under Sections 166 and 140 of the Motor Vehicles Act, 1988, for grant of compensation for the death of their parents, which were registered as cases numbered, MACT No. 349/2010 (with respect to Mrs. Manisha Sharma) and MACT No. 350/2010 (with respect to Mr. Sunil Sharma), and were adjudicated vide a common award dated 7th June, 2016. 5. The present appeal pertains to the claim petition preferred on the account of the death of the appellants mother. The appellants’ mother, Mrs. Manisha Sharma, was aged about 37 years and was a self­employed individual. 6. The Tribunal, while adjudicating the claim, determined the compensation to be Rs. 41,55,235. The Tribunal relied upon the Income Tax Return of the deceased and concluded that her annual income was Rs. 2,55,349. Based on the dictum of this Court in Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121, 50% addition was included towards future prospects and the multiplier was taken to be 15. Since, the deceased had two dependents, 1/3 rd of the deceased’s income was deducted on account of personal and living expenses. The non­pecuniary compensation was calculated at Rs. 3,25,000. The NIC, being the insurer of the vehicle, was held liable to pay the compensation of Rs. 41,55,235 with an interest of 9% per annum from the date of filing of the claim petition. 7. Aggrieved, the insurance company preferred an appeal against the award of the MACT before the Delhi High Court, which disposed of the appeal vide the impugned judgment dated 4th September, 2017. The High Court, in its common judgement, calculated the pecuniary compensation as Rs. 19,16,000 and the non­pecuniary damages was calculated as Rs.2,50,000, for a total compensation of Rs. 21,66,000/­, in MAC. APP. 740/2016. While passing the aforesaid impugned order, the High Court deducted 50% of income towards personal and living expenses. The High Court however, held the deceased ineligible for the grant of future prospects as she was self­employed. 8. Aggrieved by the impugned judgement, the Appellants have preferred the present appeal, by way of Special Leave, impugning only the compensation as modified in MAC. App. 9. We have heard the counsel for the Appellants and the counsel for the NIC, Respondent No. 1. The Respondents No. 2 and 3 have not tendered their appearances, despite service. The insurance company has also placed on record their written submissions, which have been perused. 10. This Court in a Five Judge Bench decision in National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680, clearly held that in case the deceased is self­employed and below the age of 40, 40% addition would be made to their income as future prospects. In the present case, the deceased was self­employed and was 37 years old, therefore, warranting the addition of 40% towards future prospects. Moreover, Pranay Sethi (supra), affirming the ratio in Sarla Verma (supra), held that the deduction towards personal and living expenses for a person such as the deceased who was married with two dependents, to be one­third (1/3 rd). Since the High Court in the impugned judgment deducted 50% the same merits interference by this Court. 11. Therefore, in light of the above, the compensation as awarded to the Appellants by the High Court is modified to the extent of deduction towards personal and living expenses (determined to be one­third (1/3 rd)) and 40% addition towards future prospects. The annual income of the deceased (Mrs. Manisha Sharma) was Rs. 2,55,349. After deducting personal and living expenses and adding future prospects, the annual income is determined at Rs. 2,38,326/­. The multiplier of 15 is appropriate, considering the age of the deceased. Accordingly, the total loss of dependency, is calculated to be Rs. 35,74,890/­. We do not find any reason to interfere with any other heads as determined by the High Court. 12. Hence, the total compensation is determined to be, Rs. 38,24,890/­ payable with interest of 9% per annum from the date of filing of the claim petition till realisation, set off against the part compensation already received, if any. 13. This Civil Appeal is disposed of in the aforesaid terms.
The Supreme Court has confirmed that when calculating money given after a car accident, an extra 40% of the deceased person's income must be added for their expected future earnings. This applies if the person who died was self-employed and under 40 years old. The Court referred to an earlier decision by five judges in a case called National Insurance Co. Ltd. v. Pranay Sethi. In that ruling, it was clearly stated that if the person who died was self-employed and under 40, 40% should be added to their income for future earnings. The Court noted that in this current case, the person who died was self-employed and 37, making the 40% addition for future earnings necessary. The High Court, a lower court, had previously decided that the person who died in this case could not receive money for future earnings because she was self-employed. The High Court had also subtracted 50% of the dead person's income for their personal spending. The Supreme Court disagreed with this method. The Pranay Sethi ruling had stated that if the person who died was married with two people who depended on them, only one-third (about 33%) of their income should be taken away for personal expenses. The Supreme Court then recalculated the money to be paid by adding 40% for future earnings and subtracting one-third for personal expenses. Case Details Title: Rahul Sharma and another vs National Insurance Company Ltd and others Coram: The judges who heard the case were Chief Justice of India NV Ramana, Justice Surya Kant, and Justice Aniruddha Bose.
2. The appellants before us seek to impugn the judgment dated 4th September, 2017, passed by the Delhi High Court in 3. The brief facts, necessary for the adjudication of this appeal are as follows: on the intervening night of the 18 th/19th May, 2010, the vehicle in which parents of the Appellants were travelling rammed into a truck, near Phagwara, Punjab. Resultantly, they succumbed to the injuries sustained in the accident. The car was plying other relatives of the Appellants and the deceased. Thereafter, F.I.R. no. 76/10, was registered in PS Sadar Phagwara, Punjab under Sections 249, 304­A, 427 of the Indian Penal Code, 1860 in this regard. It may be relevant to note that the vehicle was, during the relevant period, insured by the National Insurance Co. Ltd. (hereinafter, referred to as NIC), the Respondent No. 1 herein. 4. The Appellants instituted a claim petition before the under Sections 166 and 140 of the Motor Vehicles Act, 1988, for grant of compensation for the death of their parents, which were registered as cases numbered, MACT No. 349/2010 (with respect to Mrs. Manisha Sharma) and MACT No. 350/2010 (with respect to Mr. Sunil Sharma), and were adjudicated vide a common award dated 7th June, 2016. 5. The present appeal pertains to the claim petition preferred on the account of the death of the appellants mother. The appellants’ mother, Mrs. Manisha Sharma, was aged about 37 years and was a self­employed individual. 6. The Tribunal, while adjudicating the claim, determined the compensation to be Rs. 41,55,235. The Tribunal relied upon the Income Tax Return of the deceased and concluded that her annual income was Rs. 2,55,349. Based on the dictum of this Court in Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121, 50% addition was included towards future prospects and the multiplier was taken to be 15. Since, the deceased had two dependents, 1/3 rd of the deceased’s income was deducted on account of personal and living expenses. The non­pecuniary compensation was calculated at Rs. 3,25,000. The NIC, being the insurer of the vehicle, was held liable to pay the compensation of Rs. 41,55,235 with an interest of 9% per annum from the date of filing of the claim petition. 7. Aggrieved, the insurance company preferred an appeal against the award of the MACT before the Delhi High Court, which disposed of the appeal vide the impugned judgment dated 4th September, 2017. The High Court, in its common judgement, calculated the pecuniary compensation as Rs. 19,16,000 and the non­pecuniary damages was calculated as Rs.2,50,000, for a total compensation of Rs. 21,66,000/­, in MAC. APP. 740/2016. While passing the aforesaid impugned order, the High Court deducted 50% of income towards personal and living expenses. The High Court however, held the deceased ineligible for the grant of future prospects as she was self­employed. 8. Aggrieved by the impugned judgement, the Appellants have preferred the present appeal, by way of Special Leave, impugning only the compensation as modified in MAC. App. 9. We have heard the counsel for the Appellants and the counsel for the NIC, Respondent No. 1. The Respondents No. 2 and 3 have not tendered their appearances, despite service. The insurance company has also placed on record their written submissions, which have been perused. 10. This Court in a Five Judge Bench decision in National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680, clearly held that in case the deceased is self­employed and below the age of 40, 40% addition would be made to their income as future prospects. In the present case, the deceased was self­employed and was 37 years old, therefore, warranting the addition of 40% towards future prospects. Moreover, Pranay Sethi (supra), affirming the ratio in Sarla Verma (supra), held that the deduction towards personal and living expenses for a person such as the deceased who was married with two dependents, to be one­third (1/3 rd). Since the High Court in the impugned judgment deducted 50% the same merits interference by this Court. 11. Therefore, in light of the above, the compensation as awarded to the Appellants by the High Court is modified to the extent of deduction towards personal and living expenses (determined to be one­third (1/3 rd)) and 40% addition towards future prospects. The annual income of the deceased (Mrs. Manisha Sharma) was Rs. 2,55,349. After deducting personal and living expenses and adding future prospects, the annual income is determined at Rs. 2,38,326/­. The multiplier of 15 is appropriate, considering the age of the deceased. Accordingly, the total loss of dependency, is calculated to be Rs. 35,74,890/­. We do not find any reason to interfere with any other heads as determined by the High Court. 12. Hence, the total compensation is determined to be, Rs. 38,24,890/­ payable with interest of 9% per annum from the date of filing of the claim petition till realisation, set off against the part compensation already received, if any. 13. This Civil Appeal is disposed of in the aforesaid terms.
The Supreme Court has confirmed that when calculating money given after a car accident, an extra 40% of the deceased person's income must be added for their expected future earnings. This applies if the person who died was self-employed and under 40 years old. The Court referred to an earlier decision by five judges in a case called National Insurance Co. Ltd. v. Pranay Sethi. In that ruling, it was clearly stated that if the person who died was self-employed and under 40, 40% should be added to their income for future earnings. The Court noted that in this current case, the person who died was self-employed and 37, making the 40% addition for future earnings necessary. The High Court, a lower court, had previously decided that the person who died in this case could not receive money for future earnings because she was self-employed. The High Court had also subtracted 50% of the dead person's income for their personal spending. The Supreme Court disagreed with this method. The Pranay Sethi ruling had stated that if the person who died was married with two people who depended on them, only one-third (about 33%) of their income should be taken away for personal expenses. The Supreme Court then recalculated the money to be paid by adding 40% for future earnings and subtracting one-third for personal expenses. Case Details Title: Rahul Sharma and another vs National Insurance Company Ltd and others Coram: The judges who heard the case were Chief Justice of India NV Ramana, Justice Surya Kant, and Justice Aniruddha Bose.
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Case :- CRIMINAL APPEAL No. - 5119 of 2021 Respondent :- State of U.P. and Another Counsel for Appellant :- Awadhesh Kumar Sharma,Sharda Counsel for Respondent :- G.A. (Criminal Misc. Bail Application No.... of 2021) Heard Ms. Swati Agrawal Srivastava, learned counsel for the appellant as well as learned A.G.A for the State and perused the This criminal appeal under Section 14 A (2) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short "S.C./S.T. Act") has been filed assailing the legality and validity of the impugned order dated 21.10.2021 passed by the learned Special Judge (SC/ST Act)/Additional Sessions Judge, Allahabad while rejecting the Bail Application No.6263 of 2021 (State vs. Dinesh Yadav @ Michai Yadav and others) in Case Crime No.780 of 2021, under Sections 328, 343, 376-D, 504, 506 I.P.C. and Section 3(2)V of the S.C./S.T. Act, Police There are two connected appeals having Criminal Appeal No. 4767 of 2021 and Criminal Appeal No. 5119 of 2021.The genesis of both these two criminal appeals are from one and same F.I.R. and for the sake of brevity both the appeals are decided by a common order. The instant criminal appeal No.5119 of 2021 is targeted against the judgement and order passed by Special Judge (SC/ST Act)/ Addtional Sessions Judge, Allahabad by rejecting Bail Application No.6263 of 2021 on 21.10.2021 whereas in another criminal appeal bail of Suresh Yadav @ Suresh Kumar Yadav was rejected vide Bail Application No. 6263 of 2021 was rejected on the same day i.e. 21.10.2021. Both of them are accused of Case Crime No. 780 of 2021, under Sections 328, 343, 376-D, 504 and 506 I.P.C. and 3(2)V of SC/ST Act, Police Station Naini, District Prayagraj and both of these appellants are behind the bar since 11.10.2021. The counter affidavit has been filed by the State. Learned counsel for the appellant is not proposing to file any rejoinder affidavit. The order-sheet indicates that the notices were duly served upon opposite party no.2 personally way back in the month of December, 2021 but neither they have engaged any counsel nor have filed any counter affidavit to represent their case. Taking the service to be sufficient upon them with the help & aid of learned AGA, Court is proposing to decide both the appeals by a common order. Learned counsel for the appellant drawing the attention of the Court to the F.I.R. lodged by Neha Bhartiya, who herself is the victim. As per the allegations made in the F.I.R. on 10.10.2021 for the incident said to have been taken place on 04.10.2021 against Suresh Yadav, Rakesh Yadav and Mirchai Yadav. All the three named accused persons are the real brothers and are the sons of Baddu Lal Yadav. The genesis of the with the prosecutrix went along with her mother to a temple. Her mother was about ten steps ahead of her. All of sudden in a Bolero Car she was kidnapped by some unknown persons, who made her unconscious and thereafter confined her into a room. They used to administer her liquor and misbehaved with her time and again. This process had continued for another period of one week and thereafter left her in a abandon condition near the railway crossing. She has positively accused all three named persons for committing gang rape upon her. Learned counsel for the appellant submits that the victim/ informant and her mother are in habit of making such type of frivolous F.I.Rs. On the earlier occasion the mother of the victim Smt. Baby, has lodged one F.I.R. No. 470 of 2021, on 25.06.2021, under Sections 365, 452, 323, 504, 506, 392 I.P.C. and Section 3(2)(Va) of SC/ST Act against Vinod Yadav, Milan Yadav and Ravi Prakash Yadav, but the police after investigation has submitted a final report on 10.08.2021. Coming to the text of the present case that all three named accused persons are real brothers, who have been charged for committing gang rape. Levelling such a serious allegation the lady has conveniently shuns away and never admitted for any medical examination so as to establish the fact of gang rape upon her. This is the serious matter wherein the attending circumstances, it is required to establish the authenticity of the allegations. It is mandatory and obligatory on the part of the victim to get herself medically examined so as to substantiate the allegation of rape. It is not her choice to admit or not to admit for the medical examination. As per annexure No. SA-1 of the supplementary affidavit she has positively denied to get her medical examined done. In her statement recorded under Section 161 Cr.P.C. first informant states that she is a married lady but she herself deserted her husband on account of ill treatment extended by her husband. Hon'ble Apex Court in its various pronouncements have clearly opined that it is risky to blindly rely upon victims 161 and 164 Cr.P.C. statements without having any supporting, independent documentary proof or any other confidence generating material collected during Learned A.G.A. has vehemently opposed the prayer for bail by making a mention that this a case of gang rape where the dignity and honour of an lady has been outraged by the named accused persons. After levelling such a serious allegation against three real brothers, contentions raised that it is highly improbable that three real brothers could commit a gang rape with a lady, coupled with the fact that she has never admitted for any medical examination so as to connect the allegation of rape upon her. Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties, the period of detention already undergone by the appellant and also without expressing any opinion on merits of the case, I am of the view that the appellant has made out a case for bail. Let the appellant- Suresh Yadav @ Suresh Kumar Yadav, be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of However, it is made clear that any wilful violation of above conditions by the appellant, shall have serious repercussion on his bail so granted by this court. Keeping in view that though the complainant belongs to the scheduled caste community and as per arguments of learned counsel for the complainant that the accused/appellant who belongs to a higher caste, after his release, may create all sorts of impediments in the smooth trial and may extend allurement and threats to the informant, his family members as well as other witnesses, thus, it is directed that in such eventuality, all these complaints may be raised by the complainant before the Superintendent of Police concerned who would examine objectively after having reports from his agencies at the earliest with regard to threat prospective of complainant and his family members and use his own discretion in the matter, if it desirable, then during trial may provide security to complainant and his near family members. Accordingly, the appeal succeeds and the same stands ALLOWED. Impugned order dated 21.10.2021 passed by the Allahabad, is hereby set aside.
Last week, a court in Allahabad allowed two brothers, accused of gang rape, to be released from jail temporarily. The court noted that the alleged victim, after making her claims, never agreed to a medical exam. This exam would have helped prove the gang rape. Justice Rahul Chaturvedi, the judge, said that this is a serious case. He stated that the surrounding details require proof to show if the accusations are true. He also said that for a victim, it is required by law to get a medical exam. This exam helps prove the claim of rape. It is not up to her to decide if she will have this medical check-up or not. **The case in brief** The Court was reviewing two appeals. These appeals challenged an earlier decision by a lower judge in Allahabad. That judge had denied bail to the brothers. The brothers were accused of crimes under several sections of the Indian Penal Code and the SC/ST Act. According to the police report, the victim claimed she was kidnapped by unknown people. They made her unconscious and then kept her trapped in a room. She also said they gave her alcohol and repeatedly mistreated her. She claimed this went on for another week. Afterward, they supposedly left her alone near a railway crossing. She clearly identified the three brothers by name, saying they were the ones who committed the gang rape. The brothers' lawyer pointed out something important. He said that the victim and her mother often file police reports that are not serious or true. **Court's observations** The Court noted that the victim refused a medical exam. It then referred to past decisions by the Supreme Court. The Supreme Court has stated it is risky to fully trust only a victim's statements to the police or a judge. This is especially true if there is no other proof, such as documents or other reliable evidence from the investigation. The Court noted that the victim made a very serious accusation against the three brothers. It also considered the argument that it is very unlikely three brothers would commit a gang rape together. This, combined with her refusal to have a medical exam to prove the rape, led the Court to grant the appeals and release them on bail.
Case :- CRIMINAL APPEAL No. - 5119 of 2021 Respondent :- State of U.P. and Another Counsel for Appellant :- Awadhesh Kumar Sharma,Sharda Counsel for Respondent :- G.A. (Criminal Misc. Bail Application No.... of 2021) Heard Ms. Swati Agrawal Srivastava, learned counsel for the appellant as well as learned A.G.A for the State and perused the This criminal appeal under Section 14 A (2) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short "S.C./S.T. Act") has been filed assailing the legality and validity of the impugned order dated 21.10.2021 passed by the learned Special Judge (SC/ST Act)/Additional Sessions Judge, Allahabad while rejecting the Bail Application No.6263 of 2021 (State vs. Dinesh Yadav @ Michai Yadav and others) in Case Crime No.780 of 2021, under Sections 328, 343, 376-D, 504, 506 I.P.C. and Section 3(2)V of the S.C./S.T. Act, Police There are two connected appeals having Criminal Appeal No. 4767 of 2021 and Criminal Appeal No. 5119 of 2021.The genesis of both these two criminal appeals are from one and same F.I.R. and for the sake of brevity both the appeals are decided by a common order. The instant criminal appeal No.5119 of 2021 is targeted against the judgement and order passed by Special Judge (SC/ST Act)/ Addtional Sessions Judge, Allahabad by rejecting Bail Application No.6263 of 2021 on 21.10.2021 whereas in another criminal appeal bail of Suresh Yadav @ Suresh Kumar Yadav was rejected vide Bail Application No. 6263 of 2021 was rejected on the same day i.e. 21.10.2021. Both of them are accused of Case Crime No. 780 of 2021, under Sections 328, 343, 376-D, 504 and 506 I.P.C. and 3(2)V of SC/ST Act, Police Station Naini, District Prayagraj and both of these appellants are behind the bar since 11.10.2021. The counter affidavit has been filed by the State. Learned counsel for the appellant is not proposing to file any rejoinder affidavit. The order-sheet indicates that the notices were duly served upon opposite party no.2 personally way back in the month of December, 2021 but neither they have engaged any counsel nor have filed any counter affidavit to represent their case. Taking the service to be sufficient upon them with the help & aid of learned AGA, Court is proposing to decide both the appeals by a common order. Learned counsel for the appellant drawing the attention of the Court to the F.I.R. lodged by Neha Bhartiya, who herself is the victim. As per the allegations made in the F.I.R. on 10.10.2021 for the incident said to have been taken place on 04.10.2021 against Suresh Yadav, Rakesh Yadav and Mirchai Yadav. All the three named accused persons are the real brothers and are the sons of Baddu Lal Yadav. The genesis of the with the prosecutrix went along with her mother to a temple. Her mother was about ten steps ahead of her. All of sudden in a Bolero Car she was kidnapped by some unknown persons, who made her unconscious and thereafter confined her into a room. They used to administer her liquor and misbehaved with her time and again. This process had continued for another period of one week and thereafter left her in a abandon condition near the railway crossing. She has positively accused all three named persons for committing gang rape upon her. Learned counsel for the appellant submits that the victim/ informant and her mother are in habit of making such type of frivolous F.I.Rs. On the earlier occasion the mother of the victim Smt. Baby, has lodged one F.I.R. No. 470 of 2021, on 25.06.2021, under Sections 365, 452, 323, 504, 506, 392 I.P.C. and Section 3(2)(Va) of SC/ST Act against Vinod Yadav, Milan Yadav and Ravi Prakash Yadav, but the police after investigation has submitted a final report on 10.08.2021. Coming to the text of the present case that all three named accused persons are real brothers, who have been charged for committing gang rape. Levelling such a serious allegation the lady has conveniently shuns away and never admitted for any medical examination so as to establish the fact of gang rape upon her. This is the serious matter wherein the attending circumstances, it is required to establish the authenticity of the allegations. It is mandatory and obligatory on the part of the victim to get herself medically examined so as to substantiate the allegation of rape. It is not her choice to admit or not to admit for the medical examination. As per annexure No. SA-1 of the supplementary affidavit she has positively denied to get her medical examined done. In her statement recorded under Section 161 Cr.P.C. first informant states that she is a married lady but she herself deserted her husband on account of ill treatment extended by her husband. Hon'ble Apex Court in its various pronouncements have clearly opined that it is risky to blindly rely upon victims 161 and 164 Cr.P.C. statements without having any supporting, independent documentary proof or any other confidence generating material collected during Learned A.G.A. has vehemently opposed the prayer for bail by making a mention that this a case of gang rape where the dignity and honour of an lady has been outraged by the named accused persons. After levelling such a serious allegation against three real brothers, contentions raised that it is highly improbable that three real brothers could commit a gang rape with a lady, coupled with the fact that she has never admitted for any medical examination so as to connect the allegation of rape upon her. Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties, the period of detention already undergone by the appellant and also without expressing any opinion on merits of the case, I am of the view that the appellant has made out a case for bail. Let the appellant- Suresh Yadav @ Suresh Kumar Yadav, be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of However, it is made clear that any wilful violation of above conditions by the appellant, shall have serious repercussion on his bail so granted by this court. Keeping in view that though the complainant belongs to the scheduled caste community and as per arguments of learned counsel for the complainant that the accused/appellant who belongs to a higher caste, after his release, may create all sorts of impediments in the smooth trial and may extend allurement and threats to the informant, his family members as well as other witnesses, thus, it is directed that in such eventuality, all these complaints may be raised by the complainant before the Superintendent of Police concerned who would examine objectively after having reports from his agencies at the earliest with regard to threat prospective of complainant and his family members and use his own discretion in the matter, if it desirable, then during trial may provide security to complainant and his near family members. Accordingly, the appeal succeeds and the same stands ALLOWED. Impugned order dated 21.10.2021 passed by the Allahabad, is hereby set aside.
Last week, a court in Allahabad allowed two brothers, accused of gang rape, to be released from jail temporarily. The court noted that the alleged victim, after making her claims, never agreed to a medical exam. This exam would have helped prove the gang rape. Justice Rahul Chaturvedi, the judge, said that this is a serious case. He stated that the surrounding details require proof to show if the accusations are true. He also said that for a victim, it is required by law to get a medical exam. This exam helps prove the claim of rape. It is not up to her to decide if she will have this medical check-up or not. **The case in brief** The Court was reviewing two appeals. These appeals challenged an earlier decision by a lower judge in Allahabad. That judge had denied bail to the brothers. The brothers were accused of crimes under several sections of the Indian Penal Code and the SC/ST Act. According to the police report, the victim claimed she was kidnapped by unknown people. They made her unconscious and then kept her trapped in a room. She also said they gave her alcohol and repeatedly mistreated her. She claimed this went on for another week. Afterward, they supposedly left her alone near a railway crossing. She clearly identified the three brothers by name, saying they were the ones who committed the gang rape. The brothers' lawyer pointed out something important. He said that the victim and her mother often file police reports that are not serious or true. **Court's observations** The Court noted that the victim refused a medical exam. It then referred to past decisions by the Supreme Court. The Supreme Court has stated it is risky to fully trust only a victim's statements to the police or a judge. This is especially true if there is no other proof, such as documents or other reliable evidence from the investigation. The Court noted that the victim made a very serious accusation against the three brothers. It also considered the argument that it is very unlikely three brothers would commit a gang rape together. This, combined with her refusal to have a medical exam to prove the rape, led the Court to grant the appeals and release them on bail.
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This Criminal Original Petition is directed against the order passed in Cr.M.P.No.1935 of 2021, dated 21.10.2021 on the file of the learned Principal Sessions Judge for EC and NDPS Act cases, Madurai, dismissing the petition filed under Section 167(2) of Code of Civil Procedure, seeking statutory bail. 2.The respondent police has registered a case in Crime No.156 of 2021 against the petitioner for allegedly possessing of 22 kgs of Ganga, under Sections 8(c) r/w 20(b) (ii) (c) of NDPS Act. 3.It is not in dispute that the petitioner was arrested on 19.04.2021 and was remanded to judicial custody on 20.04.2021. The petitioner has filed a petition under Section 167(2) Cr.P.C, seeking default bail alleging that the respondent police has failed to file the charge sheet within a period of 180 days envisaged under Section 36(A) of NDPS Act. The petitioner has filed the said petition for statutory bail on 18.10.2021. Admittedly the respondent has CRL OP(MD). No.18273 of 2021 also filed the charge sheet on 18.10.2021. As evident from the order of the learned trial Judge, petition filed under Section 167(2) Cr.P.C, was returned, directing the counsel on record to produce the relevant decisions, in view of the judgment of this Court passed in Crl.OP(MD)Nos.5104, 5843, 10854 and 10902 of 2021. 4.It is further evident that the petition was re-presented and the same was taken on file on 20.10.2021. The learned trial Judge, after hearing both the learned counsel for the petitioner as well the learned Special Public Prosecutor appearing for the respondent, has passed the impugned order dated 21.10.2021, dismissing the said petition. Aggrieved by the order of dismissal, the accused has come forward with the present petition. 5.At the outset, as rightly contended by the learned counsel for the petitioner, the trial Court in its order has dealt with the merits of the case and came to the conclusion that the petitioner cannot be enlarged on statutory bail. It is necessary to CRL OP(MD). No.18273 of 2021 refer the relevant paragraph of the order passed by the trial Court here under : “Considering the seriousness, gravity of the offence, serious objections on prosecution side and huge quantity of the contraband, this Court is not inclined to grant statutory bail to the petitioner and therefore, this petition is liable to be dismissed.” 6.The Bail Court, while considering the application under Section 167(2) Cr.P.C, is duty bound to decide the application forthwith without any unnecessary delay, after getting necessary information from the concerned Public Prosecutor and to consider as to whether the ingredients necessary for releasing the accused on default bail are existing and that if the Court is satisfied with the existence of such ingredients, then the Court has to release the accused on bail forthwith. 7.Moreover, the Bail Court, while dealing with the petition for statutory bail, is having no power or jurisdiction to go into the merits of the case and CRL OP(MD). No.18273 of 2021 to see as to whether the ingredients necessary for granting regular bail are available or not. 8.In the case on hand, as already pointed out, the learned trial Judge after receiving the application on 18.10.2021, returned the petition twice and took the petition on file on 20.10.2021 and thereafter, had proceeded to discuss about the merits of the case and at last, concluded that the petitioner is not entitled to get statutory bail. 9.The learned counsel for the petitioner would submit that whether the accused is entitled for statutory bail, when the charge sheet is filed after filing of the bail application, has already been answered by the Hon'ble Supreme Court in the case in M.Ravindran Vs. State of Tamil Nadu reported in 2021 1 SCC (Cri) 876, that though the respondent Police has filed the charge sheet on 18.10.2021 itself, the trial Court has failed to ascertain the time as to when the charge sheet was filed into the Court and that the trial Court without ascertaining the time, by simply observing that the final report was CRL OP(MD). No.18273 of 2021 prepared and kept ready on 31.08.2021 itself and the same was filed on 18.10.2021, has decided against the petitioner. 10.The learned Additional Public Prosecutor appearing for the respondent would submit that the respondent has filed the charge sheet at about 10.30 am on 18.10.2021 before the E-filing counter attached to the Madurai District Court, that due to Dassara Holidays from 14.10.2021 to 17.10.2021, the prosecution with no other option has laid the charge sheet on 18.10.2021 i.e., immediately on the next working day and that the learned trial Judge, after taking into all the aspects, has rightly dismissed the petition. 11.In the case on hand, two questions/issues (i) Whether the indefeasible right accrued to the petitioner/accused under Section 167(2) Cr.P.C can be defeated by filing charge sheet simultaneously or subsequently on the same day, by the prosecution? CRL OP(MD). No.18273 of 2021 (ii) Whether the provisions of Section 10 of General Clauses Act can be invoked, while computing the period of 60 days or 90 days as envisaged by Section 167(2) Cr.P.C or 180 days as envisaged by Section 36(A) (4) of NDPS Act r/w Section 167(2) 12.Before entering into further discussion, it is necessary to refer Section 167(2) Cr.P.C and the corresponding Section 36(A) (4) of NDPS Act; “The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction.” (a) the Magistrate may authorise the detention of the accused person, CRL OP(MD). No.18273 of 2021 otherwise than in the custody of the police, beyond the period of fifteen days; if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub- section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of (b)no Magistrate shall authorise detention in any custody under this section unless the accused is produced CRL OP(MD). No.18273 of 2021 (c) no Magistrate of the Second class, not specifically empowered in this behalf by the High Court, shall authorise detention in the custody of the police” Section 36(A) (4) of NDPS Act : “(4) In respect of persons accused of an offence punishable under section 19 or section 24 or section 27 A or for offences involving commercial quantity the references in sub-section (2) of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), thereof to "ninety days", where they occur, shall be construed as reference to "one Provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days.” 13.Section 167(2) Cr.P.C., contemplates that if the charge sheet is not laid within the period of 60 days or 90 days as the case may be, the accused is CRL OP(MD). No.18273 of 2021 entitled to get default bail. Section 36(A) (4) of NDPS Act prescribes a period of 180 days for investigating certain offences under the NDPS Act instead of 90 days as provided under Section 167(2) 14.The proviso to Section 36(A)(4) of NDPS Act permits the Special Court to extend the time from 180 days upto one year, if the Public Prosecutor submits a report indicating the progress of investigation and giving specific reasons for requiring the detention of the accused beyond the prescribed period of 180 days. 15.There is a misconception that in cases where the bail petition under Section 167(2) Cr.P.C and the charge sheet are being filed on the same day, then the time at which, bail petition or the charge sheet is filed, is the deciding factor and that if the charge sheet is filed earlier to the bail petition, then the accused is not entitled to get the statutory bail or in case, if the bail petition is filed before laying of charge sheet, then the bail application has CRL OP(MD). No.18273 of 2021 to be allowed. The accused is entitled to file his application for default bail only after the expiry of 60 days or 90 days or 180 days as the case may be and that his right to avail the statutory bail accures only on the next day i.e., on 61st, 91st or 181st day, as the case may be, but the investigating agency has to file the charge sheet before the expiry of 60 days, 90 days or 180 days as the case may be, if they require the detention of the accused beyond the prescribed period of 60 or 90 or 180 days. 16.The Hon'ble Supreme Court in Rakesh Kumar Paul Vs. State of Assam reported in (2017) 15 SCC 67, has held that, “as a cautionary measure, the counsel for the accused as well as the Magistrate ought to inform the accused of the availability of the indefeasible right under Section 167(2) once it accrues to him, without any delay. This is especially where the accused is from an underprivileged section of society and is unlikely to have access to information about his legal rights. Such knowledge- sharing by Magistrates will thwart any dilatory tactics by the prosecution and also ensure that the CRL OP(MD). No.18273 of 2021 obligations spelled out under Article 21 of the Constitution and the statement of objects and Reasons of the Cr.P.C are upheld.” 17.If the charge sheet is filed on 61st or 91st or 181st day, as the case may be, even prior to the filing of the bail petition on the same day, the said filing of the charge sheet will not defeat the right already accrued to the accused and if such an interpretation is not given, then that will lead to a proposition that the investigating agency can file a charge sheet even on 61st or 91st or 181st day as the case may be, as of right and detain the accused in judicial custody. 18. Let us visualize a situation. If the prosecution files charge sheet in the morning session on 61st or 91st or 181st day, as the case may be, before the Registry or E-filing Section of that Court concerned, then the accused is produced before the concerned Court in the afternoon session for extension of remand and if the Magistrate informs about his right to apply for statutory bail as per CRL OP(MD). No.18273 of 2021 directions of the Hon'ble Supreme Court in Rakesh Kumar Paul's case and the accused files a petition for bail under Section 167(2) Cr.P.C, can it be said that since the prosecution has filed the charge sheet earlier to the filing of the bail petition, the indefeasible right to statutory bail gets 19.A Full Bench of the Hon'ble Apex Court in M.Ravindran Vs. The Intelligence Officer, Director of Revenue Intelligence reported in 2021 2 SCC 485, “14.2 It must also be added and it is well settled that issuance of notice to the State on the application for default bail filed under the Proviso to Section 167(2) is only so that the Public Prosecutor can satisfy the Court that the prosecution has already obtained an order of extension of time from the Court; or that the challan has been filed in the designated Court before the expiry of the prescribed period; or that the prescribed period has actually not expired. The prosecution can accordingly urge the Court CRL OP(MD). No.18273 of 2021 to refuse granting bail on the alleged ground of default. Such issuance of notice would avoid the possibility of the accused obtaining default bail by deliberate or inadvertent suppression of certain facts and also guard against multiplicity of proceedings.”(emphasis supplied) 20.In the same judgement, the Hon'ble Supreme Court after referring its earlier judgements in (i) Dr. Bipin Shantilal Panchal vs State Of Maharashtra (1996) 1 SCC 722; and (iii) Sanjay Dutt vs State Through C.B.I. (1994) 5 SCC 410; has held that the accused must apply for default bail the moment the right under Section 167(2) Cr.P.C accrues to him and the relevant passages are extracted hereunder: 15.1 Similarly, in Dr. Bipin Shantilal Panchal (supra), it was admitted that the accused had not filed an application for bail at the time the right under Section 167(2), CrPC had CRL OP(MD). No.18273 of 2021 accrued to him. The chargesheet had already been filed by the time the accused sought to avail of his right. Incidentally, the same three Judge Bench which had delivered the opinion in Mohamed Iqbal Madar Sheikh (supra), and which was part of the original Constitution Bench in Sanjay Dutt (supra), rendered judgment as follows: “4…But it is an admitted position that the charge sheet has been filed on 23-5-1994 and now the appellant is in custody on the basis of orders of remand passed under the other provisions of the Code. Whether the accused who was entitled to be released on bail under proviso to sub section (2) of Section 167 of the Code, not having made an application when such right had accrued, can exercise that right at a later stage of the proceeding, has been examined by a Constitution Bench Sanjay Dutt v. State through CBI… …Therefore, if an accused person fails to exercise his right to be CRL OP(MD). No.18273 of 2021 released on bail for the failure of the prosecution to file the charge sheet within the maximum time allowed by law, he cannot indefeasible right to exercise it at any time notwithstanding the fact that in the meantime the charge sheet is filed. But on the other hand if he exercises the right within the time allowed by law and is released on bail under such circumstances, he cannot be rearrested on the mere filing of the charge sheet, as pointed out in Aslam Babalal Desai v. State of Maharashtra.” (emphasis The above mentioned discussion clearly corroborates our view, and the view taken by the majority in Uday Mohanlal Acharya, that the decision in Sanjay Dutt only lays down as a precautionary principle that the accused must apply for default bail the moment the right under Section 167(2) accrues to him. If he fails to do so, he cannot CRL OP(MD). No.18273 of 2021 claim the right at a subsequent stage of the proceedings after the prosecution has filed a charge sheet. The words “not having made an application when such right had accrued, can exercise that right at a later stage” clearly indicate that the accused is deemed to have exercised his right to bail once he makes an application for the same.” 21.In Bikramjit Singh Vs. State of Punjab reported in 2020 SCC Online SC 824, the Hon'ble Apex Court has observed thus : “A conspectus of the aforesaid decisions would show that so long as an application for grant of default bail is made on expiry of the period of 90 days (which application need not even be in writing) before a charge sheet is filed, the right to default bail becomes complete. It is of no moment that the Criminal Court in question either does not dispose of such application before the charge sheet is filed or disposes of such application wrongly before such charge sheet is filed. So long as an application has been made CRL OP(MD). No.18273 of 2021 for default bail on expiry of the stated period before time is further extended to the maximum period of 180 days, default bail, being an indefeasible right of the accused under the first proviso to Section 167(2), kicks in and must be granted.” 22.In M.Ravindran's case, the Hon'ble Apex Court has held that in case of any ambiguity in the construction of a penal statue, the Courts must favour the interpretation which leans towards protecting the rights of the accused, given the ubiquitous power disparity between the individual accused and the State machinery and the same is applicable not only in the case of substantive penal statutes but also in the case of procedures providing for the curtailment of the liberty of the accused. 23.It is pertinent to mention that the Hon'ble Supreme Court in M.Ravindran's case, cited supra, has held that the Constitution Bench decision in Sanjay Dutt's case cannot be interpreted so as to mean that even where the accused has promptly CRL OP(MD). No.18273 of 2021 exercised his right under Section 167(2) and indicated his willingness to furnish bail, he can be denied bail on account of delay in deciding his application or erroneous rejection of the same. Nor can he be kept detained in custody on account of subterfuge of the prosecution in filing a police report or additional complaint on the same day that the bail application is filed. 24.Considering the above, the moot point that arises is as to what is the time available for the accused to apply statutory bail, after the expiry of the period prescribed for filing the final report by the investigating agency. 25.As already pointed out, the investigating agency is duty bound to file their final report before expiry of 60 or 90 or 180 days, as the case may be, and on the next day i.e, 61st or 91st or 181st day only, the right to apply for statutory bail gets accrued to the accused and there must be some reasonable time limit enabling him to apply for the CRL OP(MD). No.18273 of 2021 default bail. In Tamil Nadu, all the Courts shall ordinarily sit at 10.30.am. If the investigating agency files the charge sheet by 10.30 am, on the next day, after the expiry of the period prescribed under Section 167(2) Cr.P.C, can we say that the accused has lost his right of filing the petition for default bail subsequently, on the same day. In my considered view, the accused can exercise his right to apply the default bail on the whoe day, on which, the indefeasible right to apply the statutory bail accrues to him. 26.In the case on hand, admittedly both the bail petition as well as the charge sheet were filed on 18.10.2021. As rightly contended by the learned counsel for the petitioner, the period of 180 days got expired before 18.10.2021 and as such, the respondent police has failed to file the charge sheet within the prescribed period of 180 days. But on the other hand, the petitioner only after expiry of prescribed period of 180 days has filed the petition by invoking his indefeasible right under Section 36(A)(4) of NDPS Act r/w Section 167(2) of Cr.P.C. CRL OP(MD). No.18273 of 2021 Hence, the observation of the learned trial Judge that she had verified with the concerned staffs of E-filing Section as to the time, at which the charge sheet was filed and that since the concerned staffs had informed that there was no practice to enter the time at which, the petitions or cases are being filed, pales into insignificance. Since the prosecution has laid the charge sheet, after expiry of period prescribed, the time of filing the charge sheet cannot be considered as a relevant criteria for deciding the statutory bail. 27.The Hon'ble Supreme Court in M.Ravindran's case, cited supra, while considering the points as to whether the indefeasible right accruing to the accused under Section 167(2) Cr.P.C gets extinguished by subsequent filing of an additional complaint by the investigating agency, after referring to the various decisions on the subject, has concluded as “18. Therefore, in conclusion: 18.1 Once the accused files an application for bail under the Proviso to CRL OP(MD). No.18273 of 2021 Section 167(2) he is deemed to have ‘availed of’ or enforced his right to be released on default bail, accruing after expiry of the stipulated time limit for investigation. Thus, if the accused applies for bail under Section 167(2)Cr.P.C read with Section 36 A, NDPS Act upon expiry of 180 days or the extended period, as the case may be, the Court must release him on bail forthwith without any unnecessary delay after getting necessary information from the public prosecutor, as mentioned supra. Such prompt action will restrict the prosecution from frustrating the legislative mandate to release the accused on bail in case of default by the investigative agency. 18.2 The right to be released on default bail continues to remain enforceable if the accused has applied for such bail, notwithstanding pendency of the bail application; or subsequent filing of the charge sheet or a report seeking extension of time by the prosecution before the Court; or filing of the charge sheet during the interregnum when challenge to the CRL OP(MD). No.18273 of 2021 rejection of the bail application is pending before a higher Court. 18.3 However, where the accused fails to apply for default bail when the right accrues to him, and subsequently a charge sheet, additional complaint or a report seeking extension of time is preferred before the Magistrate, the right to default bail would be extinguished. The Magistrate would be at liberty to take cognizance of the case or grant further time for completion of the investigation, as the case may be, though the accused may still be released on bail under other provisions of the Cr.P.C. 18.4 Notwithstanding the order of default bail passed by the Court, by virtue of Explanation I to Section 167(2), the actual release of the accused from custody is contingent on the directions passed by the competent Court granting bail. If the accused fails to furnish bail and/or comply with the terms and conditions of the bail order within the time stipulated by the Court, his continued detention in custody is valid.” CRL OP(MD). No.18273 of 2021 28.Considering the above, this Court has no hesitation to hold that since the petitioner has availed of his indefeasible right to bail on 18.10.2021 and offered to abide by the terms and conditions to be imposed, the subsequent or even simultaneous filing of the charge sheet does not disentitle the petitioner from claiming the default bail. 29.As already pointed out, the next contention of the prosecution is that since the Courts were closed for Dassara Holidays for the period between 14.10.2021 and 17.10.2021, the charge sheet has been laid on the very next working day i.e., on 18.10.2021 and as per Section 10 of the General Clauses Act, the prosecution is certainly entitled to file the charge sheet on the next working day, since the date on which, the period prescribed for filing the charge sheet expires on a holiday. Hence, it is necessary to refer Section 10 of the General Clauses Act. CRL OP(MD). No.18273 of 2021 Section 10 the General Clauses Act of Where, by any Central Act or Regulation made after the commencement of this Act, any act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period, then, if the Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office Provided that nothing in this section shall apply to any act or proceeding to which the Indian Limitation Act, 1877 (XVI of 1877) applies.” 30.Section 10 of the General Clauses Act contemplates that a person for whom a period is prescribed for the performance of an act in a Court or Office, and that the period expires on a holiday, CRL OP(MD). No.18273 of 2021 then the person is entitled to do the said act on the next working day. 31.An interesting question arise as to whether Section 10 of General Clauses Act is applicable to the investigating agency for filing the charge sheet, if the period contemplated under Section 167(2) Cr.P.C expires on a holiday. 32.A single Judge of Bombay High Court in State Of Maharashtra vs Sharad B. Sarda reported in 1983 (1) BomCR 578, has discussed the above point elaborately and came to the conclusion that Section 10 of General Clauses Act has no application in such cases and the relevant passages are extracted “13. The point to be decided, is as to whether the provisions of section 10 of the General Clauses Act, 1897 are attracted by the facts of this case. Mr. Hudlikar contended that 90 the day of detention of the accused falls on Sunday i.e. on September 12, 1982, so on the next opening of the courts a CRL OP(MD). No.18273 of 2021 charged sheet is filed on September 13, 1982 and therefore, the proceeding shall be considered as done or taken in due time, on the next day after wards on which the Court is opened. Section 10 of General Clauses Act lays down that whereby any Central Act or regulation made after the commencement of this act, any act or proceedings is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribe period then if the Court or office is closed on that day or the last day of the prescribed period the Act or the proceeding shall be considered as done or taken in due time. According to Mr. Hudlikar, filing of the charge sheet on September 13, 1982 on opening of the Court on that day was saved by section 10 of the General Clauses Act. It is true that the Court was closed on September 1982. The question is as to whether under the Code any time has been prescribed for filing of a charge-sheet. Mr. Hudlikar fairly conceded that there is no prescribed period mentioned in the Code to file a charge sheet. What is CRL OP(MD). No.18273 of 2021 required under section 10 of the General Clauses Act is that any act or proceeding directed or allowed to be done or taken in any Court on a certain day or within prescribed period then the Act or the proceedings shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court is opened. As stated above no certain day was fixed by the order of the Court or any period prescribed for filing of the charge-sheet. The prosecution could have filed the charge sheet earlier than September 12, 1982. Except filing of the charge-sheet on September 13, 1982 nothing has been done as directed or allowed to be done and it is, therefore, that the provisions of section 10 of the General Clauses Act will not apply. An absolute right accrued to the accused on the expiry of 90 days and it cannot be defeated by merely filing of the charge-sheet on September 13, 1982. The right is State Of Maharashtra vs Sharad B. Sarda on 29 November, 1982 accrued the moment 90 days are over, whether that 90th day CRL OP(MD). No.18273 of 2021 falls on a holiday or not. The accused continued to be in custody and therefore, the provisions of section 167(2) lays down that he can be in the custody only for a period of 90 days or 60 days, as the case may be. As stated above the right is accrued to the accused and it is the duty of the Magistrate to inform the accused that he is entitled to be released on bail and this absolute right of the accused cannot be allowed to be defeated by resorting to the provisions of section 10 of the General Clauses Act. Thus, in this view of the matter it must be held that section 10 of the General Clauses Act does not apply to this case.” 33.But subsequently, a Division Bench of Orissa High Court in N.Sureya Reddy and another Vs. State of Orissa reported in 1985 (1) OLR 105, has held that section 10 of the General Clauses Act can be invoked by investigating agency for the purpose of laying the final reports. Subsequently, a Division Bench of Delhi high Court in Powell Nwawa Ogechi vs. The State (Delhi Administration) reported in ILR 1986 Delhi CRL OP(MD). No.18273 of 2021 181, after referring the decisions of the Bombay and Orissa High Courts, has agreed with the view taken by the Bombay High Court and the relevant passages are “(11) A bare reading of the aforesaid provision of the Code would go to show that this provision merely confers power on the Magistrate to commit to custody an accused person and there is limitation of 90 days and 60 days, as the case may be. This provision of the Code falls under Chap. XII of the Code relating to information to the police and their powers to investigate. It is thus clear that this is a power which is only exercisable during the course of investigation of a case. The power to commit an accused person to custody after investigation is over and after the charge- sheet is presented before the Court, is derived from Section 309, Cr. P.C. Any further remand to judicial custody beyond 90 days and 60 days without the charge- sheet being presented before the Court will be without the authority of law. (12) Sub-section (2) of Section 167 of the Code nowhere prescribes a period within which the police is required to present CRL OP(MD). No.18273 of 2021 charge-sheet before the court nor does it envisage the performance of an act by an accused person within a particular period before a Court or office. In fact, nowhere in the Code a period is prescribed for investigation to produce the charge-sheet before a Court of law. Since the Legislature in its wisdom has not prescribed a period within which the investigation has to present charge-sheet against an accused person before a Court, it would be wrong to say that the provision of Section 167(2) of Code had prescribed the limit by implication. If the Legislature had aimed it to be so, there was nothing to prevent it from saying so explicitly. By invoking the doctrine of implication we will be importing something in the provision which the Legislature has deliberately refrained to do. It will not only have the effect of distorting the provision but will also defeat the legislative intent. (13) In N. Sureya Reddy's case (1985 Cri LJ 939) (supra) a Division Bench of Orissa High Court has ruled that Section 10 of the General Clauses Act is attracted if the charge-sheet against the accused person could not be presented on the 60th or 90th CRL OP(MD). No.18273 of 2021 day for the reason of being a public holiday and this is so ruled on the ground that by implication Section 167(2) does prescribe a period for presentation of charge-sheet before a Court. We have carefully considered this proposition but we respectfully do not agree with the aforesaid view for the reasons stated above. (14)A contrary view to the aforesaid authority, with which we agree, has been taken by the High Court of Bombay in State of Maharashtra v. Sharad B. Sarda (1983 (2) Cri LC 18) wherein it was held that in a case such as this, Section 10 of the General Clauses Act has no application as the Code does not prescribe any time limit for presentation of charge-sheet by the investigation. The learned Judge further ruled that after the expiry of time of 90 or 60 days, the right accruing to the accused is absolute. One of our own Judges in Criminal Misc. (Main) 504 of 1985, Bhagwat Singh v. State, has had an occasion to consider the proposition regarding application of Section 10 of General Clauses Act and has opined that it has no application and the accused person after the expiry of 90 days or 60 days as the case may be, is entitled to be released on CRL OP(MD). No.18273 of 2021 bail. We are in respectful agreement with the view taken in the aforesaid cases i.e. by the learned Judge of Bombay High Court and by the learned Judge of our own High 34.As rightly observed by the Delhi High Court, Section 10 of General Clauses Act presupposes that there must be a positive act to be performed, in existence and for the performance of which, there is in existence a period prescribed by law. 35. It is pertinent to mention that the Code of Criminal Procedure does not prescribe any particular period for laying the charge sheet and the Section 167(2) of Cr.P.C does not prescribe any period of limitation even by implication. The investigating agency is certainly entitled to file the charge sheet, even after expiry of 60 or 90 or 180 days, as the case may be, but they will not have any right to seek extension of remand beyond the period prescribed under Section 167(2) Cr.P.C. CRL OP(MD). No.18273 of 2021 36.Considering the judgements of Delhi, Orissa and Bombay High Courts and the reasonings given therein, this Court is in entire agreement with the view expressed by the Bombay High Court, which was accepted by the Delhi High Court. Hence, this Court has no hesitation to hold that Section 10 of the General Clauses Act has no application at all and the same cannot be invoked by the investigating agency for laying the final report, after the expiry of the prescribed period. 37.The Hon'ble Supreme Court, after taking suo motu cognizance of the situation arising out of the challenge faced by the County on account of Covid-19 virus, has passed an order in suo motu in W.P.(C). No.3 of 2020, dated 23.03.2020, extending the period of limitation with effect from 15.03.2020 for filing the petitions/applications/suits/appeals and other proceedings, which were indicated in that order itself. After passing of the above order, a question arose as to whether the investigating agency can take advantage of the said order extending time for filing CRL OP(MD). No.18273 of 2021 charge sheet, after the period prescribed under 38.A Full Bench of the Hon'ble Supreme Court in S.Kasi Vs. State through the Inspector of Police, reported in 2020 SCC Online SC 529 has observed that “ the indefeasible right to default bail under Section 167(2) is an integral part of the right to personal liberty under Article 21, and the said right to bail cannot be suspended even during a pandemic situation as is prevailing currently. It was emphasized that the right of the accused to be set at liberty takes precedence over the right of the State to carry on the investigation and submit a chargesheet.” 39.The Hon'ble Apex Court has further concluded that neither their order, dated 23.03.2020 can be held to have eclipses the time prescribed under Section 167(2) Cr.P.C nor the restrictions, which have been imposed during the lockdown announced CRL OP(MD). No.18273 of 2021 by the Government shall operate as any restriction on the rights of an accused, as protected by Section 167(2) Cr.P.C regarding his indefeasible right to get a default bail on non submission of charge sheet within the time prescribed. 40.The Hon'ble Apex Court has referred, its earlier judgments, for highlighting the purpose and object of Section 167 Cr.P.C in (i) Uday Mohanlal Acharcya Vs. State of (ii) Rakesh Kumar Paul Vs. State of Assam (iii) Achpal @ Ramswaroop and another Vs. State of Rajastan 2019 14 SCC 599, and held as follows; “14.The Scheme of Code of Criminal Procedure as noticed above clearly delineates that provisions of Section 167 of Code of Criminal Procedure gives due regard to the personal liberty of a person. Without submission of charge sheet within 60 days or 90 days as may be applicable, an accused cannot be detained by the Police. The provision gives due recognition to the personal liberty.” CRL OP(MD). No.18273 of 2021 41.Considering the above, this Court has no hesitation to hold that the learned trial Judge has not dealt with the application filed under Section 167(2) Cr.P.C in proper legal perspective, but by considering the merits of the case dismissed the petition and as such, the impugned order is not good in law and the same is liable to be set aside. 42.In the result, this Criminal Original Petition is allowed and the order passed in Cr.M.P.No.1935 of 2021, dated 21.10.2021 on the file of the learned Principal Sessions Judge for EC and NDPS Act cases, Madurai, is set aside. The petitioner is ordered to be released on bail on his executing a bond for a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) with two sureties each for a like sum to the satisfaction of the learned Principal Sessions Judge for EC and NDPS Act cases, Madurai. i) the sureties shall affix their photographs and left thumb impression in the surety bond and the Magistrate/concerned court may obtain a copy of their Aadhar card or Bank Pass Book to ensure their CRL OP(MD). No.18273 of 2021 ii) the petitioner shall report before the concerned Court on every Monday at 10.30 a.m until further orders. iii)the petitioner shall not tamper with evidence or witness. iv) the petitioner shall not abscond during trial. v)On breach of any of the aforesaid conditions, the learned Magistrate/Trial Court is entitled to take appropriate action against the petitioner in accordance with law as if the conditions have been imposed and the petitioner released on bail by the learned Magistrate/Trial Court himself as laid down by the Hon'ble Supreme Court in P.K.Shaji vs. State of Kerala [(2005)AIR SCW 5560]. vi) If the accused thereafter absconds, a fresh FIR can be registered under Section 229A IPC. Note : In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned. CRL OP(MD). No.18273 of 2021 For EC and NDPS Act cases, Madurai. 2.The Inspector of Police, Madurai Bench of Madras High Court, Madurai. CRL OP(MD). No.18273 of 2021 CRL OP(MD). No.18273 of 2021
An important decision by the Madurai Bench of the Madras High Court looked closely at the laws and past court cases that define "default bail." Default bail is a right given to an accused person if the police don't complete their investigation and file a formal report on time. These rules come from Section 167(2) of the Criminal Procedure Code (CrPC) and Section 36(A)(4) of the Narcotic Drugs and Psychotropic Substances (NDPS) Act. The court cleared up old confusion about the time limits. These limits apply to both the accused person asking for default bail and the police (the investigating agency) filing their formal report, called a "charge sheet," with the court. Justice K. Murali Shankar ruled that even if the police file the charge sheet later or at the same time, an accused person can still claim default bail under the CrPC. The judges noted a common wrong idea. Many people thought that if a bail request and the charge sheet were filed on the same day, the exact time they were filed mattered most. They believed if the charge sheet came first, the accused couldn't get this bail. Or, if the bail request came first, then bail *had* to be given. The court made it clear that the police must file the charge sheet *before* the time limit runs out. This limit is 60, 90, or 180 days, depending on the crime and the law (CrPC or NDPS Act). They must do this if they want to keep the accused person in jail longer than these set times. The Court said, "If the charge sheet is filed on the 61st, 91st, or 181st day, for example, even if it's before the bail request on that same day, this filing will not take away the right the accused person already earned. If we didn't see it this way, it would mean the police could file a charge sheet on these later days, as if they had a right to do so, and keep the accused in jail." **Background** In this case, the person asking for bail was accused under the NDPS Act, a law about illegal drugs. The first court that heard his case rejected his request for default bail. It did this because the crime was serious, the government lawyers strongly objected, and a large amount of illegal drugs was involved. The court also noted that the charge sheet and the bail request were filed on the same day, but the police had filed their report earlier. **Right Of Accused To Statutory Bail & Effect Of Prosecution Filing Chargesheet Simultaneously** The High Court emphasized that if laws about crimes or court rules are unclear, they should be understood in a way that protects the accused person's rights. The court based this view mainly on two past cases (M. Raveendran and Bikramjit Singh). This approach recognizes the huge power difference between an individual accused person and the government's system, like the police. The court observed that when understanding court rules, there must be a fair time limit. This limit, whether under the Criminal Procedure Code or specific parts of the NDPS Act, allows the accused to ask for this type of bail once a certain time has passed. The court stated in its decision, "In Tamil Nadu, all courts usually open at 10:30 AM. If the police file their charge sheet by 10:30 AM on the day after the deadline under Section 167(2) Cr.P.C. has ended, can we say the accused has lost his right to file a request for default bail later that same day? In my view, the accused can use his right to ask for default bail for the *entire* day that this untakeable right officially begins for him." The court also made it clear that if the police file the charge sheet after the deadline, but the accused person also asks for default bail at the same time, the exact time the charge sheet was filed is not an important factor for deciding on default bail. In an older Supreme Court case from 1994 (Sanjay Dutt v. State), the top court had ruled that an accused person must ask for default bail as soon as they gain that right. That 1994 ruling stated that if the accused fails to do so, they cannot claim that right later in the case, especially after the government lawyers have already filed a formal report or an additional complaint. About a careful rule set out in the Sanjay Dutt case, the court clarified: "The Supreme Court in the M. Ravindran case, mentioned earlier, ruled that the Sanjay Dutt decision cannot be understood to mean that an accused person can be denied bail if they quickly used their right under Section 167(2) and offered to provide bail money. This is true even if there is a delay in deciding their request or if it was wrongly rejected. Nor can they be kept in jail because of a trick by the government lawyers in filing a police report or another complaint on the same day that the bail request is filed." **Whether Section 10 Of General Clauses Act Can Be Invoked For Computing The Time Period Envisaged Under Section 167(2) of Cr.P.C Or Section 36(A) (4) Of NDPS Act?** The government lawyers also argued that the delay in filing the charge sheet, on October 18th, was because of court holidays from October 14th to 17th for the Dassera Festival. They claimed that Section 10 of the General Clauses Act allowed them to file the charge sheet on the next business day, since the deadline for filing it fell on a holiday. Section 10 of the General Clauses Act clearly states that this extra time will be given when "an action or a court process is ordered or permitted to be done in any Court or office on a specific day or within a set time." The court had to decide if Section 10 would apply to the police when filing the charge sheet, if the time limit under Section 167(2) Cr.P.C. ended on a holiday. The court said "no." It based its decision on a Delhi High Court ruling from 1986 (Powell Nwawa Ogechi v. The State) which agreed with an earlier Bombay High Court ruling from 1982 (State Of Maharashtra v. Sharad B. Sarda). These two rulings stated that Section 10 "assumes there must be a specific action to be done, which already exists, and for that action, there is a time period set by law." The court noted, "It's important to understand that the Criminal Procedure Code does not set any specific period for filing the charge sheet. Section 167(2) Cr.P.C. does not even indirectly set a time limit. The police certainly have the right to file the charge sheet, even after 60, 90, or 180 days have passed. However, they will not have any right to ask to keep the accused in jail longer than the time set under Section 167(2) Cr.P.C." Related to this, the court also mentioned a Supreme Court order from 2020 (S.Kasi v. State). In that order, it was made clear that "the untakeable right to default bail under Section 167(2) is an essential part of a person's basic right to freedom under Article 21. This right to bail cannot be stopped, even during a widespread health crisis like the one happening now." So, the Supreme Court noted that its earlier order, which started on its own because of the pandemic, could not be used by police departments. That order did not allow police to get more time to file charge sheets after the set deadline. Section 167(2) of the Criminal Procedure Code. Courts cannot look into case facts when deciding on 'Default Bail'. The High Court stated that when a court reviews a request for bail under Section 167(2) of the Criminal Procedure Code (CrPC), it must make a decision without unnecessary delay. The court should first get the necessary information from the Public Prosecutor, who is the government's lawyer. It then needs to check if the specific conditions required for granting 'default bail' are met. If these conditions are indeed present, the court must release the accused person on bail immediately. The High Court also added that when a court is considering a request for 'default bail,' it does not have the power to look into the actual details or evidence of the crime itself. It also cannot check if the reasons for giving regular bail (a different type of bail) are present in the case. Therefore, the accused person's legal request was approved. The earlier decision made by the Principal Sessions Judge in Madurai was canceled. The accused was then granted 'default bail,' but only after agreeing to sign a legal promise, called a bond, and follow other rules set for their bail.
This Criminal Original Petition is directed against the order passed in Cr.M.P.No.1935 of 2021, dated 21.10.2021 on the file of the learned Principal Sessions Judge for EC and NDPS Act cases, Madurai, dismissing the petition filed under Section 167(2) of Code of Civil Procedure, seeking statutory bail. 2.The respondent police has registered a case in Crime No.156 of 2021 against the petitioner for allegedly possessing of 22 kgs of Ganga, under Sections 8(c) r/w 20(b) (ii) (c) of NDPS Act. 3.It is not in dispute that the petitioner was arrested on 19.04.2021 and was remanded to judicial custody on 20.04.2021. The petitioner has filed a petition under Section 167(2) Cr.P.C, seeking default bail alleging that the respondent police has failed to file the charge sheet within a period of 180 days envisaged under Section 36(A) of NDPS Act. The petitioner has filed the said petition for statutory bail on 18.10.2021. Admittedly the respondent has CRL OP(MD). No.18273 of 2021 also filed the charge sheet on 18.10.2021. As evident from the order of the learned trial Judge, petition filed under Section 167(2) Cr.P.C, was returned, directing the counsel on record to produce the relevant decisions, in view of the judgment of this Court passed in Crl.OP(MD)Nos.5104, 5843, 10854 and 10902 of 2021. 4.It is further evident that the petition was re-presented and the same was taken on file on 20.10.2021. The learned trial Judge, after hearing both the learned counsel for the petitioner as well the learned Special Public Prosecutor appearing for the respondent, has passed the impugned order dated 21.10.2021, dismissing the said petition. Aggrieved by the order of dismissal, the accused has come forward with the present petition. 5.At the outset, as rightly contended by the learned counsel for the petitioner, the trial Court in its order has dealt with the merits of the case and came to the conclusion that the petitioner cannot be enlarged on statutory bail. It is necessary to CRL OP(MD). No.18273 of 2021 refer the relevant paragraph of the order passed by the trial Court here under : “Considering the seriousness, gravity of the offence, serious objections on prosecution side and huge quantity of the contraband, this Court is not inclined to grant statutory bail to the petitioner and therefore, this petition is liable to be dismissed.” 6.The Bail Court, while considering the application under Section 167(2) Cr.P.C, is duty bound to decide the application forthwith without any unnecessary delay, after getting necessary information from the concerned Public Prosecutor and to consider as to whether the ingredients necessary for releasing the accused on default bail are existing and that if the Court is satisfied with the existence of such ingredients, then the Court has to release the accused on bail forthwith. 7.Moreover, the Bail Court, while dealing with the petition for statutory bail, is having no power or jurisdiction to go into the merits of the case and CRL OP(MD). No.18273 of 2021 to see as to whether the ingredients necessary for granting regular bail are available or not. 8.In the case on hand, as already pointed out, the learned trial Judge after receiving the application on 18.10.2021, returned the petition twice and took the petition on file on 20.10.2021 and thereafter, had proceeded to discuss about the merits of the case and at last, concluded that the petitioner is not entitled to get statutory bail. 9.The learned counsel for the petitioner would submit that whether the accused is entitled for statutory bail, when the charge sheet is filed after filing of the bail application, has already been answered by the Hon'ble Supreme Court in the case in M.Ravindran Vs. State of Tamil Nadu reported in 2021 1 SCC (Cri) 876, that though the respondent Police has filed the charge sheet on 18.10.2021 itself, the trial Court has failed to ascertain the time as to when the charge sheet was filed into the Court and that the trial Court without ascertaining the time, by simply observing that the final report was CRL OP(MD). No.18273 of 2021 prepared and kept ready on 31.08.2021 itself and the same was filed on 18.10.2021, has decided against the petitioner. 10.The learned Additional Public Prosecutor appearing for the respondent would submit that the respondent has filed the charge sheet at about 10.30 am on 18.10.2021 before the E-filing counter attached to the Madurai District Court, that due to Dassara Holidays from 14.10.2021 to 17.10.2021, the prosecution with no other option has laid the charge sheet on 18.10.2021 i.e., immediately on the next working day and that the learned trial Judge, after taking into all the aspects, has rightly dismissed the petition. 11.In the case on hand, two questions/issues (i) Whether the indefeasible right accrued to the petitioner/accused under Section 167(2) Cr.P.C can be defeated by filing charge sheet simultaneously or subsequently on the same day, by the prosecution? CRL OP(MD). No.18273 of 2021 (ii) Whether the provisions of Section 10 of General Clauses Act can be invoked, while computing the period of 60 days or 90 days as envisaged by Section 167(2) Cr.P.C or 180 days as envisaged by Section 36(A) (4) of NDPS Act r/w Section 167(2) 12.Before entering into further discussion, it is necessary to refer Section 167(2) Cr.P.C and the corresponding Section 36(A) (4) of NDPS Act; “The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction.” (a) the Magistrate may authorise the detention of the accused person, CRL OP(MD). No.18273 of 2021 otherwise than in the custody of the police, beyond the period of fifteen days; if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub- section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of (b)no Magistrate shall authorise detention in any custody under this section unless the accused is produced CRL OP(MD). No.18273 of 2021 (c) no Magistrate of the Second class, not specifically empowered in this behalf by the High Court, shall authorise detention in the custody of the police” Section 36(A) (4) of NDPS Act : “(4) In respect of persons accused of an offence punishable under section 19 or section 24 or section 27 A or for offences involving commercial quantity the references in sub-section (2) of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), thereof to "ninety days", where they occur, shall be construed as reference to "one Provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period up to one year on the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of one hundred and eighty days.” 13.Section 167(2) Cr.P.C., contemplates that if the charge sheet is not laid within the period of 60 days or 90 days as the case may be, the accused is CRL OP(MD). No.18273 of 2021 entitled to get default bail. Section 36(A) (4) of NDPS Act prescribes a period of 180 days for investigating certain offences under the NDPS Act instead of 90 days as provided under Section 167(2) 14.The proviso to Section 36(A)(4) of NDPS Act permits the Special Court to extend the time from 180 days upto one year, if the Public Prosecutor submits a report indicating the progress of investigation and giving specific reasons for requiring the detention of the accused beyond the prescribed period of 180 days. 15.There is a misconception that in cases where the bail petition under Section 167(2) Cr.P.C and the charge sheet are being filed on the same day, then the time at which, bail petition or the charge sheet is filed, is the deciding factor and that if the charge sheet is filed earlier to the bail petition, then the accused is not entitled to get the statutory bail or in case, if the bail petition is filed before laying of charge sheet, then the bail application has CRL OP(MD). No.18273 of 2021 to be allowed. The accused is entitled to file his application for default bail only after the expiry of 60 days or 90 days or 180 days as the case may be and that his right to avail the statutory bail accures only on the next day i.e., on 61st, 91st or 181st day, as the case may be, but the investigating agency has to file the charge sheet before the expiry of 60 days, 90 days or 180 days as the case may be, if they require the detention of the accused beyond the prescribed period of 60 or 90 or 180 days. 16.The Hon'ble Supreme Court in Rakesh Kumar Paul Vs. State of Assam reported in (2017) 15 SCC 67, has held that, “as a cautionary measure, the counsel for the accused as well as the Magistrate ought to inform the accused of the availability of the indefeasible right under Section 167(2) once it accrues to him, without any delay. This is especially where the accused is from an underprivileged section of society and is unlikely to have access to information about his legal rights. Such knowledge- sharing by Magistrates will thwart any dilatory tactics by the prosecution and also ensure that the CRL OP(MD). No.18273 of 2021 obligations spelled out under Article 21 of the Constitution and the statement of objects and Reasons of the Cr.P.C are upheld.” 17.If the charge sheet is filed on 61st or 91st or 181st day, as the case may be, even prior to the filing of the bail petition on the same day, the said filing of the charge sheet will not defeat the right already accrued to the accused and if such an interpretation is not given, then that will lead to a proposition that the investigating agency can file a charge sheet even on 61st or 91st or 181st day as the case may be, as of right and detain the accused in judicial custody. 18. Let us visualize a situation. If the prosecution files charge sheet in the morning session on 61st or 91st or 181st day, as the case may be, before the Registry or E-filing Section of that Court concerned, then the accused is produced before the concerned Court in the afternoon session for extension of remand and if the Magistrate informs about his right to apply for statutory bail as per CRL OP(MD). No.18273 of 2021 directions of the Hon'ble Supreme Court in Rakesh Kumar Paul's case and the accused files a petition for bail under Section 167(2) Cr.P.C, can it be said that since the prosecution has filed the charge sheet earlier to the filing of the bail petition, the indefeasible right to statutory bail gets 19.A Full Bench of the Hon'ble Apex Court in M.Ravindran Vs. The Intelligence Officer, Director of Revenue Intelligence reported in 2021 2 SCC 485, “14.2 It must also be added and it is well settled that issuance of notice to the State on the application for default bail filed under the Proviso to Section 167(2) is only so that the Public Prosecutor can satisfy the Court that the prosecution has already obtained an order of extension of time from the Court; or that the challan has been filed in the designated Court before the expiry of the prescribed period; or that the prescribed period has actually not expired. The prosecution can accordingly urge the Court CRL OP(MD). No.18273 of 2021 to refuse granting bail on the alleged ground of default. Such issuance of notice would avoid the possibility of the accused obtaining default bail by deliberate or inadvertent suppression of certain facts and also guard against multiplicity of proceedings.”(emphasis supplied) 20.In the same judgement, the Hon'ble Supreme Court after referring its earlier judgements in (i) Dr. Bipin Shantilal Panchal vs State Of Maharashtra (1996) 1 SCC 722; and (iii) Sanjay Dutt vs State Through C.B.I. (1994) 5 SCC 410; has held that the accused must apply for default bail the moment the right under Section 167(2) Cr.P.C accrues to him and the relevant passages are extracted hereunder: 15.1 Similarly, in Dr. Bipin Shantilal Panchal (supra), it was admitted that the accused had not filed an application for bail at the time the right under Section 167(2), CrPC had CRL OP(MD). No.18273 of 2021 accrued to him. The chargesheet had already been filed by the time the accused sought to avail of his right. Incidentally, the same three Judge Bench which had delivered the opinion in Mohamed Iqbal Madar Sheikh (supra), and which was part of the original Constitution Bench in Sanjay Dutt (supra), rendered judgment as follows: “4…But it is an admitted position that the charge sheet has been filed on 23-5-1994 and now the appellant is in custody on the basis of orders of remand passed under the other provisions of the Code. Whether the accused who was entitled to be released on bail under proviso to sub section (2) of Section 167 of the Code, not having made an application when such right had accrued, can exercise that right at a later stage of the proceeding, has been examined by a Constitution Bench Sanjay Dutt v. State through CBI… …Therefore, if an accused person fails to exercise his right to be CRL OP(MD). No.18273 of 2021 released on bail for the failure of the prosecution to file the charge sheet within the maximum time allowed by law, he cannot indefeasible right to exercise it at any time notwithstanding the fact that in the meantime the charge sheet is filed. But on the other hand if he exercises the right within the time allowed by law and is released on bail under such circumstances, he cannot be rearrested on the mere filing of the charge sheet, as pointed out in Aslam Babalal Desai v. State of Maharashtra.” (emphasis The above mentioned discussion clearly corroborates our view, and the view taken by the majority in Uday Mohanlal Acharya, that the decision in Sanjay Dutt only lays down as a precautionary principle that the accused must apply for default bail the moment the right under Section 167(2) accrues to him. If he fails to do so, he cannot CRL OP(MD). No.18273 of 2021 claim the right at a subsequent stage of the proceedings after the prosecution has filed a charge sheet. The words “not having made an application when such right had accrued, can exercise that right at a later stage” clearly indicate that the accused is deemed to have exercised his right to bail once he makes an application for the same.” 21.In Bikramjit Singh Vs. State of Punjab reported in 2020 SCC Online SC 824, the Hon'ble Apex Court has observed thus : “A conspectus of the aforesaid decisions would show that so long as an application for grant of default bail is made on expiry of the period of 90 days (which application need not even be in writing) before a charge sheet is filed, the right to default bail becomes complete. It is of no moment that the Criminal Court in question either does not dispose of such application before the charge sheet is filed or disposes of such application wrongly before such charge sheet is filed. So long as an application has been made CRL OP(MD). No.18273 of 2021 for default bail on expiry of the stated period before time is further extended to the maximum period of 180 days, default bail, being an indefeasible right of the accused under the first proviso to Section 167(2), kicks in and must be granted.” 22.In M.Ravindran's case, the Hon'ble Apex Court has held that in case of any ambiguity in the construction of a penal statue, the Courts must favour the interpretation which leans towards protecting the rights of the accused, given the ubiquitous power disparity between the individual accused and the State machinery and the same is applicable not only in the case of substantive penal statutes but also in the case of procedures providing for the curtailment of the liberty of the accused. 23.It is pertinent to mention that the Hon'ble Supreme Court in M.Ravindran's case, cited supra, has held that the Constitution Bench decision in Sanjay Dutt's case cannot be interpreted so as to mean that even where the accused has promptly CRL OP(MD). No.18273 of 2021 exercised his right under Section 167(2) and indicated his willingness to furnish bail, he can be denied bail on account of delay in deciding his application or erroneous rejection of the same. Nor can he be kept detained in custody on account of subterfuge of the prosecution in filing a police report or additional complaint on the same day that the bail application is filed. 24.Considering the above, the moot point that arises is as to what is the time available for the accused to apply statutory bail, after the expiry of the period prescribed for filing the final report by the investigating agency. 25.As already pointed out, the investigating agency is duty bound to file their final report before expiry of 60 or 90 or 180 days, as the case may be, and on the next day i.e, 61st or 91st or 181st day only, the right to apply for statutory bail gets accrued to the accused and there must be some reasonable time limit enabling him to apply for the CRL OP(MD). No.18273 of 2021 default bail. In Tamil Nadu, all the Courts shall ordinarily sit at 10.30.am. If the investigating agency files the charge sheet by 10.30 am, on the next day, after the expiry of the period prescribed under Section 167(2) Cr.P.C, can we say that the accused has lost his right of filing the petition for default bail subsequently, on the same day. In my considered view, the accused can exercise his right to apply the default bail on the whoe day, on which, the indefeasible right to apply the statutory bail accrues to him. 26.In the case on hand, admittedly both the bail petition as well as the charge sheet were filed on 18.10.2021. As rightly contended by the learned counsel for the petitioner, the period of 180 days got expired before 18.10.2021 and as such, the respondent police has failed to file the charge sheet within the prescribed period of 180 days. But on the other hand, the petitioner only after expiry of prescribed period of 180 days has filed the petition by invoking his indefeasible right under Section 36(A)(4) of NDPS Act r/w Section 167(2) of Cr.P.C. CRL OP(MD). No.18273 of 2021 Hence, the observation of the learned trial Judge that she had verified with the concerned staffs of E-filing Section as to the time, at which the charge sheet was filed and that since the concerned staffs had informed that there was no practice to enter the time at which, the petitions or cases are being filed, pales into insignificance. Since the prosecution has laid the charge sheet, after expiry of period prescribed, the time of filing the charge sheet cannot be considered as a relevant criteria for deciding the statutory bail. 27.The Hon'ble Supreme Court in M.Ravindran's case, cited supra, while considering the points as to whether the indefeasible right accruing to the accused under Section 167(2) Cr.P.C gets extinguished by subsequent filing of an additional complaint by the investigating agency, after referring to the various decisions on the subject, has concluded as “18. Therefore, in conclusion: 18.1 Once the accused files an application for bail under the Proviso to CRL OP(MD). No.18273 of 2021 Section 167(2) he is deemed to have ‘availed of’ or enforced his right to be released on default bail, accruing after expiry of the stipulated time limit for investigation. Thus, if the accused applies for bail under Section 167(2)Cr.P.C read with Section 36 A, NDPS Act upon expiry of 180 days or the extended period, as the case may be, the Court must release him on bail forthwith without any unnecessary delay after getting necessary information from the public prosecutor, as mentioned supra. Such prompt action will restrict the prosecution from frustrating the legislative mandate to release the accused on bail in case of default by the investigative agency. 18.2 The right to be released on default bail continues to remain enforceable if the accused has applied for such bail, notwithstanding pendency of the bail application; or subsequent filing of the charge sheet or a report seeking extension of time by the prosecution before the Court; or filing of the charge sheet during the interregnum when challenge to the CRL OP(MD). No.18273 of 2021 rejection of the bail application is pending before a higher Court. 18.3 However, where the accused fails to apply for default bail when the right accrues to him, and subsequently a charge sheet, additional complaint or a report seeking extension of time is preferred before the Magistrate, the right to default bail would be extinguished. The Magistrate would be at liberty to take cognizance of the case or grant further time for completion of the investigation, as the case may be, though the accused may still be released on bail under other provisions of the Cr.P.C. 18.4 Notwithstanding the order of default bail passed by the Court, by virtue of Explanation I to Section 167(2), the actual release of the accused from custody is contingent on the directions passed by the competent Court granting bail. If the accused fails to furnish bail and/or comply with the terms and conditions of the bail order within the time stipulated by the Court, his continued detention in custody is valid.” CRL OP(MD). No.18273 of 2021 28.Considering the above, this Court has no hesitation to hold that since the petitioner has availed of his indefeasible right to bail on 18.10.2021 and offered to abide by the terms and conditions to be imposed, the subsequent or even simultaneous filing of the charge sheet does not disentitle the petitioner from claiming the default bail. 29.As already pointed out, the next contention of the prosecution is that since the Courts were closed for Dassara Holidays for the period between 14.10.2021 and 17.10.2021, the charge sheet has been laid on the very next working day i.e., on 18.10.2021 and as per Section 10 of the General Clauses Act, the prosecution is certainly entitled to file the charge sheet on the next working day, since the date on which, the period prescribed for filing the charge sheet expires on a holiday. Hence, it is necessary to refer Section 10 of the General Clauses Act. CRL OP(MD). No.18273 of 2021 Section 10 the General Clauses Act of Where, by any Central Act or Regulation made after the commencement of this Act, any act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period, then, if the Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office Provided that nothing in this section shall apply to any act or proceeding to which the Indian Limitation Act, 1877 (XVI of 1877) applies.” 30.Section 10 of the General Clauses Act contemplates that a person for whom a period is prescribed for the performance of an act in a Court or Office, and that the period expires on a holiday, CRL OP(MD). No.18273 of 2021 then the person is entitled to do the said act on the next working day. 31.An interesting question arise as to whether Section 10 of General Clauses Act is applicable to the investigating agency for filing the charge sheet, if the period contemplated under Section 167(2) Cr.P.C expires on a holiday. 32.A single Judge of Bombay High Court in State Of Maharashtra vs Sharad B. Sarda reported in 1983 (1) BomCR 578, has discussed the above point elaborately and came to the conclusion that Section 10 of General Clauses Act has no application in such cases and the relevant passages are extracted “13. The point to be decided, is as to whether the provisions of section 10 of the General Clauses Act, 1897 are attracted by the facts of this case. Mr. Hudlikar contended that 90 the day of detention of the accused falls on Sunday i.e. on September 12, 1982, so on the next opening of the courts a CRL OP(MD). No.18273 of 2021 charged sheet is filed on September 13, 1982 and therefore, the proceeding shall be considered as done or taken in due time, on the next day after wards on which the Court is opened. Section 10 of General Clauses Act lays down that whereby any Central Act or regulation made after the commencement of this act, any act or proceedings is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribe period then if the Court or office is closed on that day or the last day of the prescribed period the Act or the proceeding shall be considered as done or taken in due time. According to Mr. Hudlikar, filing of the charge sheet on September 13, 1982 on opening of the Court on that day was saved by section 10 of the General Clauses Act. It is true that the Court was closed on September 1982. The question is as to whether under the Code any time has been prescribed for filing of a charge-sheet. Mr. Hudlikar fairly conceded that there is no prescribed period mentioned in the Code to file a charge sheet. What is CRL OP(MD). No.18273 of 2021 required under section 10 of the General Clauses Act is that any act or proceeding directed or allowed to be done or taken in any Court on a certain day or within prescribed period then the Act or the proceedings shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court is opened. As stated above no certain day was fixed by the order of the Court or any period prescribed for filing of the charge-sheet. The prosecution could have filed the charge sheet earlier than September 12, 1982. Except filing of the charge-sheet on September 13, 1982 nothing has been done as directed or allowed to be done and it is, therefore, that the provisions of section 10 of the General Clauses Act will not apply. An absolute right accrued to the accused on the expiry of 90 days and it cannot be defeated by merely filing of the charge-sheet on September 13, 1982. The right is State Of Maharashtra vs Sharad B. Sarda on 29 November, 1982 accrued the moment 90 days are over, whether that 90th day CRL OP(MD). No.18273 of 2021 falls on a holiday or not. The accused continued to be in custody and therefore, the provisions of section 167(2) lays down that he can be in the custody only for a period of 90 days or 60 days, as the case may be. As stated above the right is accrued to the accused and it is the duty of the Magistrate to inform the accused that he is entitled to be released on bail and this absolute right of the accused cannot be allowed to be defeated by resorting to the provisions of section 10 of the General Clauses Act. Thus, in this view of the matter it must be held that section 10 of the General Clauses Act does not apply to this case.” 33.But subsequently, a Division Bench of Orissa High Court in N.Sureya Reddy and another Vs. State of Orissa reported in 1985 (1) OLR 105, has held that section 10 of the General Clauses Act can be invoked by investigating agency for the purpose of laying the final reports. Subsequently, a Division Bench of Delhi high Court in Powell Nwawa Ogechi vs. The State (Delhi Administration) reported in ILR 1986 Delhi CRL OP(MD). No.18273 of 2021 181, after referring the decisions of the Bombay and Orissa High Courts, has agreed with the view taken by the Bombay High Court and the relevant passages are “(11) A bare reading of the aforesaid provision of the Code would go to show that this provision merely confers power on the Magistrate to commit to custody an accused person and there is limitation of 90 days and 60 days, as the case may be. This provision of the Code falls under Chap. XII of the Code relating to information to the police and their powers to investigate. It is thus clear that this is a power which is only exercisable during the course of investigation of a case. The power to commit an accused person to custody after investigation is over and after the charge- sheet is presented before the Court, is derived from Section 309, Cr. P.C. Any further remand to judicial custody beyond 90 days and 60 days without the charge- sheet being presented before the Court will be without the authority of law. (12) Sub-section (2) of Section 167 of the Code nowhere prescribes a period within which the police is required to present CRL OP(MD). No.18273 of 2021 charge-sheet before the court nor does it envisage the performance of an act by an accused person within a particular period before a Court or office. In fact, nowhere in the Code a period is prescribed for investigation to produce the charge-sheet before a Court of law. Since the Legislature in its wisdom has not prescribed a period within which the investigation has to present charge-sheet against an accused person before a Court, it would be wrong to say that the provision of Section 167(2) of Code had prescribed the limit by implication. If the Legislature had aimed it to be so, there was nothing to prevent it from saying so explicitly. By invoking the doctrine of implication we will be importing something in the provision which the Legislature has deliberately refrained to do. It will not only have the effect of distorting the provision but will also defeat the legislative intent. (13) In N. Sureya Reddy's case (1985 Cri LJ 939) (supra) a Division Bench of Orissa High Court has ruled that Section 10 of the General Clauses Act is attracted if the charge-sheet against the accused person could not be presented on the 60th or 90th CRL OP(MD). No.18273 of 2021 day for the reason of being a public holiday and this is so ruled on the ground that by implication Section 167(2) does prescribe a period for presentation of charge-sheet before a Court. We have carefully considered this proposition but we respectfully do not agree with the aforesaid view for the reasons stated above. (14)A contrary view to the aforesaid authority, with which we agree, has been taken by the High Court of Bombay in State of Maharashtra v. Sharad B. Sarda (1983 (2) Cri LC 18) wherein it was held that in a case such as this, Section 10 of the General Clauses Act has no application as the Code does not prescribe any time limit for presentation of charge-sheet by the investigation. The learned Judge further ruled that after the expiry of time of 90 or 60 days, the right accruing to the accused is absolute. One of our own Judges in Criminal Misc. (Main) 504 of 1985, Bhagwat Singh v. State, has had an occasion to consider the proposition regarding application of Section 10 of General Clauses Act and has opined that it has no application and the accused person after the expiry of 90 days or 60 days as the case may be, is entitled to be released on CRL OP(MD). No.18273 of 2021 bail. We are in respectful agreement with the view taken in the aforesaid cases i.e. by the learned Judge of Bombay High Court and by the learned Judge of our own High 34.As rightly observed by the Delhi High Court, Section 10 of General Clauses Act presupposes that there must be a positive act to be performed, in existence and for the performance of which, there is in existence a period prescribed by law. 35. It is pertinent to mention that the Code of Criminal Procedure does not prescribe any particular period for laying the charge sheet and the Section 167(2) of Cr.P.C does not prescribe any period of limitation even by implication. The investigating agency is certainly entitled to file the charge sheet, even after expiry of 60 or 90 or 180 days, as the case may be, but they will not have any right to seek extension of remand beyond the period prescribed under Section 167(2) Cr.P.C. CRL OP(MD). No.18273 of 2021 36.Considering the judgements of Delhi, Orissa and Bombay High Courts and the reasonings given therein, this Court is in entire agreement with the view expressed by the Bombay High Court, which was accepted by the Delhi High Court. Hence, this Court has no hesitation to hold that Section 10 of the General Clauses Act has no application at all and the same cannot be invoked by the investigating agency for laying the final report, after the expiry of the prescribed period. 37.The Hon'ble Supreme Court, after taking suo motu cognizance of the situation arising out of the challenge faced by the County on account of Covid-19 virus, has passed an order in suo motu in W.P. (C). No.3 of 2020, dated 23.03.2020, extending the period of limitation with effect from 15.03.2020 for filing the petitions/applications/suits/appeals and other proceedings, which were indicated in that order itself. After passing of the above order, a question arose as to whether the investigating agency can take advantage of the said order extending time for filing CRL OP(MD). No.18273 of 2021 charge sheet, after the period prescribed under 38.A Full Bench of the Hon'ble Supreme Court in S.Kasi Vs. State through the Inspector of Police, reported in 2020 SCC Online SC 529 has observed that “ the indefeasible right to default bail under Section 167(2) is an integral part of the right to personal liberty under Article 21, and the said right to bail cannot be suspended even during a pandemic situation as is prevailing currently. It was emphasized that the right of the accused to be set at liberty takes precedence over the right of the State to carry on the investigation and submit a chargesheet.” 39.The Hon'ble Apex Court has further concluded that neither their order, dated 23.03.2020 can be held to have eclipses the time prescribed under Section 167(2) Cr.P.C nor the restrictions, which have been imposed during the lockdown announced CRL OP(MD). No.18273 of 2021 by the Government shall operate as any restriction on the rights of an accused, as protected by Section 167(2) Cr.P.C regarding his indefeasible right to get a default bail on non submission of charge sheet within the time prescribed. 40.The Hon'ble Apex Court has referred, its earlier judgments, for highlighting the purpose and object of Section 167 Cr.P.C in (i) Uday Mohanlal Acharcya Vs. State of (ii) Rakesh Kumar Paul Vs. State of Assam (iii) Achpal @ Ramswaroop and another Vs. State of Rajastan 2019 14 SCC 599, and held as follows; “14.The Scheme of Code of Criminal Procedure as noticed above clearly delineates that provisions of Section 167 of Code of Criminal Procedure gives due regard to the personal liberty of a person. Without submission of charge sheet within 60 days or 90 days as may be applicable, an accused cannot be detained by the Police. The provision gives due recognition to the personal liberty.” CRL OP(MD). No.18273 of 2021 41.Considering the above, this Court has no hesitation to hold that the learned trial Judge has not dealt with the application filed under Section 167(2) Cr.P.C in proper legal perspective, but by considering the merits of the case dismissed the petition and as such, the impugned order is not good in law and the same is liable to be set aside. 42.In the result, this Criminal Original Petition is allowed and the order passed in Cr.M.P.No.1935 of 2021, dated 21.10.2021 on the file of the learned Principal Sessions Judge for EC and NDPS Act cases, Madurai, is set aside. The petitioner is ordered to be released on bail on his executing a bond for a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) with two sureties each for a like sum to the satisfaction of the learned Principal Sessions Judge for EC and NDPS Act cases, Madurai. i) the sureties shall affix their photographs and left thumb impression in the surety bond and the Magistrate/concerned court may obtain a copy of their Aadhar card or Bank Pass Book to ensure their CRL OP(MD). No.18273 of 2021 ii) the petitioner shall report before the concerned Court on every Monday at 10.30 a.m until further orders. iii)the petitioner shall not tamper with evidence or witness. iv) the petitioner shall not abscond during trial. v)On breach of any of the aforesaid conditions, the learned Magistrate/Trial Court is entitled to take appropriate action against the petitioner in accordance with law as if the conditions have been imposed and the petitioner released on bail by the learned Magistrate/Trial Court himself as laid down by the Hon'ble Supreme Court in P.K.Shaji vs. State of Kerala [(2005)AIR SCW 5560]. vi) If the accused thereafter absconds, a fresh FIR can be registered under Section 229A IPC. Note : In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned. CRL OP(MD). No.18273 of 2021 For EC and NDPS Act cases, Madurai. 2.The Inspector of Police, Madurai Bench of Madras High Court, Madurai. CRL OP(MD). No.18273 of 2021 CRL OP(MD). No.18273 of 2021
An important decision by the Madurai Bench of the Madras High Court looked closely at the laws and past court cases that define "default bail." Default bail is a right given to an accused person if the police don't complete their investigation and file a formal report on time. These rules come from Section 167(2) of the Criminal Procedure Code (CrPC) and Section 36(A)(4) of the Narcotic Drugs and Psychotropic Substances (NDPS) Act. The court cleared up old confusion about the time limits. These limits apply to both the accused person asking for default bail and the police (the investigating agency) filing their formal report, called a "charge sheet," with the court. Justice K. Murali Shankar ruled that even if the police file the charge sheet later or at the same time, an accused person can still claim default bail under the CrPC. The judges noted a common wrong idea. Many people thought that if a bail request and the charge sheet were filed on the same day, the exact time they were filed mattered most. They believed if the charge sheet came first, the accused couldn't get this bail. Or, if the bail request came first, then bail *had* to be given. The court made it clear that the police must file the charge sheet *before* the time limit runs out. This limit is 60, 90, or 180 days, depending on the crime and the law (CrPC or NDPS Act). They must do this if they want to keep the accused person in jail longer than these set times. The Court said, "If the charge sheet is filed on the 61st, 91st, or 181st day, for example, even if it's before the bail request on that same day, this filing will not take away the right the accused person already earned. If we didn't see it this way, it would mean the police could file a charge sheet on these later days, as if they had a right to do so, and keep the accused in jail." **Background** In this case, the person asking for bail was accused under the NDPS Act, a law about illegal drugs. The first court that heard his case rejected his request for default bail. It did this because the crime was serious, the government lawyers strongly objected, and a large amount of illegal drugs was involved. The court also noted that the charge sheet and the bail request were filed on the same day, but the police had filed their report earlier. **Right Of Accused To Statutory Bail & Effect Of Prosecution Filing Chargesheet Simultaneously** The High Court emphasized that if laws about crimes or court rules are unclear, they should be understood in a way that protects the accused person's rights. The court based this view mainly on two past cases (M. Raveendran and Bikramjit Singh). This approach recognizes the huge power difference between an individual accused person and the government's system, like the police. The court observed that when understanding court rules, there must be a fair time limit. This limit, whether under the Criminal Procedure Code or specific parts of the NDPS Act, allows the accused to ask for this type of bail once a certain time has passed. The court stated in its decision, "In Tamil Nadu, all courts usually open at 10:30 AM. If the police file their charge sheet by 10:30 AM on the day after the deadline under Section 167(2) Cr.P.C. has ended, can we say the accused has lost his right to file a request for default bail later that same day? In my view, the accused can use his right to ask for default bail for the *entire* day that this untakeable right officially begins for him." The court also made it clear that if the police file the charge sheet after the deadline, but the accused person also asks for default bail at the same time, the exact time the charge sheet was filed is not an important factor for deciding on default bail. In an older Supreme Court case from 1994 (Sanjay Dutt v. State), the top court had ruled that an accused person must ask for default bail as soon as they gain that right. That 1994 ruling stated that if the accused fails to do so, they cannot claim that right later in the case, especially after the government lawyers have already filed a formal report or an additional complaint. About a careful rule set out in the Sanjay Dutt case, the court clarified: "The Supreme Court in the M. Ravindran case, mentioned earlier, ruled that the Sanjay Dutt decision cannot be understood to mean that an accused person can be denied bail if they quickly used their right under Section 167(2) and offered to provide bail money. This is true even if there is a delay in deciding their request or if it was wrongly rejected. Nor can they be kept in jail because of a trick by the government lawyers in filing a police report or another complaint on the same day that the bail request is filed." **Whether Section 10 Of General Clauses Act Can Be Invoked For Computing The Time Period Envisaged Under Section 167(2) of Cr.P.C Or Section 36(A) (4) Of NDPS Act? ** The government lawyers also argued that the delay in filing the charge sheet, on October 18th, was because of court holidays from October 14th to 17th for the Dassera Festival. They claimed that Section 10 of the General Clauses Act allowed them to file the charge sheet on the next business day, since the deadline for filing it fell on a holiday. Section 10 of the General Clauses Act clearly states that this extra time will be given when "an action or a court process is ordered or permitted to be done in any Court or office on a specific day or within a set time." The court had to decide if Section 10 would apply to the police when filing the charge sheet, if the time limit under Section 167(2) Cr.P.C. ended on a holiday. The court said "no." It based its decision on a Delhi High Court ruling from 1986 (Powell Nwawa Ogechi v. The State) which agreed with an earlier Bombay High Court ruling from 1982 (State Of Maharashtra v. Sharad B. Sarda). These two rulings stated that Section 10 "assumes there must be a specific action to be done, which already exists, and for that action, there is a time period set by law." The court noted, "It's important to understand that the Criminal Procedure Code does not set any specific period for filing the charge sheet. Section 167(2) Cr.P.C. does not even indirectly set a time limit. The police certainly have the right to file the charge sheet, even after 60, 90, or 180 days have passed. However, they will not have any right to ask to keep the accused in jail longer than the time set under Section 167(2) Cr.P.C." Related to this, the court also mentioned a Supreme Court order from 2020 (S.Kasi v. State). In that order, it was made clear that "the untakeable right to default bail under Section 167(2) is an essential part of a person's basic right to freedom under Article 21. This right to bail cannot be stopped, even during a widespread health crisis like the one happening now." So, the Supreme Court noted that its earlier order, which started on its own because of the pandemic, could not be used by police departments. That order did not allow police to get more time to file charge sheets after the set deadline. Section 167(2) of the Criminal Procedure Code. Courts cannot look into case facts when deciding on 'Default Bail'. The High Court stated that when a court reviews a request for bail under Section 167(2) of the Criminal Procedure Code (CrPC), it must make a decision without unnecessary delay. The court should first get the necessary information from the Public Prosecutor, who is the government's lawyer. It then needs to check if the specific conditions required for granting 'default bail' are met. If these conditions are indeed present, the court must release the accused person on bail immediately. The High Court also added that when a court is considering a request for 'default bail,' it does not have the power to look into the actual details or evidence of the crime itself. It also cannot check if the reasons for giving regular bail (a different type of bail) are present in the case. Therefore, the accused person's legal request was approved. The earlier decision made by the Principal Sessions Judge in Madurai was canceled. The accused was then granted 'default bail,' but only after agreeing to sign a legal promise, called a bond, and follow other rules set for their bail.
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1. Feeling aggrieved and dissatisfied with the impugned common judgment and order dated 22.03.2022 passed by the High Court of Judicature at Bombay, Bench at Aurangabad in Writ Petition Nos. 6806/2017 & 3465/2017, by which the High Court has dismissed the said two writ petitions preferred by the appellant herein – Ahmednagar Mahanagar Palika, Ahmednagar and has confirmed the judgment(s) and award(s) passed by the Industrial Court dated 16.09.2016 and 21.09.2016 in Complaint (ULP) No. 55/2005 and Complaint (ULP) No. 83/2005 respectively, directing the Ahmednagar Mahanagar Palika to provide compassionate appointment to the eligible heirs in accordance with the provisions of award dated 30.03.1981 passed in Reference IT No. 51 of 1979, the Ahmednagar Mahanagar Palika has preferred the present appeals. 2. The facts leading to the present appeals in a nutshell are as under: That in the year 2003, Ahmednagar Municipal Council was converted to Ahmednagar Mahanagar Palika. At the time when the Municipal Council was in existence, an industrial dispute was raised by the Union being Reference IT No. 51 of 1979. Demand No. 3 was with respect to the employment to be given to the heirs of the employees. At the relevant time, it was agreed by the Municipal Council that the employees in Class-IV category (if they die before their retirement) in all departments, except Health Department, if they become invalid, or if they retire, their heirs will be given appointment in their place. Consequently, by judgment and award dated 30.03.1981, the Industrial Court directed that the employees in Class-IV category, if they die before their retirement; if they become invalid, or if they retire, their heirs should be given appointment in their place. 2.1 It appears that thereafter some further demands were raised and the judgment and award dated 30.03.1981 in Reference IT No. 51 of 1979 was sought to be modified and therefore the references were made to the Industrial Court being Reference (IT) No. 2 of 1993 to Reference (IT) No. 4 of 1993. Demand No. 4 was with respect to the employment of the heirs of the employees (the same was at the instance of the Mahanagar palika). Ahmednagar Mahanagar Palika gave a notice of change in respect of demand of employment to the heirs of the employees as per Reference IT No. 51 of 1979 and the said dispute was referred for adjudication as Reference (IT) No. 2 of 1993. By judgment and award dated 21.02.2005, with respect to the aforesaid Demand No. 4, the Industrial Court modified the earlier award in Reference IT No. 51 of 1979 and directed the Ahmednagar Mahanagar Palika to provide (1) employment to the legal heirs of the employees of Class-IV category working in health department only (2) to provide the employment to the legal heirs of all categories, i.e., Class-I category to Class-IV category on compassionate ground as per government resolutions and circulars at par with government employees. Meaning thereby, under the said award, the compassionate appointment to the heirs of the employees on their superannuation/retirement was not provided and the compassionate appointment was provided only to the heirs of the deceased employees of Class-IV category. 2.2 It appears that thereafter two other industrial disputes were raised by the Ahmednagar Mahanagar Palika Kamgar Union against the Municipal Corporation/Mahanagar Palika which were in the year 2005 being Complaint (ULP) No. 55 of 2005 and Complaint (ULP) No. 83 of 2005. One of the reliefs claimed was for employment for the legal heirs of retired employees as per judgment and award dated 30.03.1981 passed in Reference IT No. 51 of 1979. By judgment(s) and award(s) dated 16.09.2016 and 21.09.2016 respectively, impugned before the High Court, the Industrial Court directed the Ahmednagar Mahanagar Palika to provide employment to the eligible heirs in accordance with the provisions in the award passed in Reference IT No. 51 of 1979. Thus, the Industrial Court directed to provide employment to the heirs of the employees on their retirement on attaining the age of superannuation. The judgment(s) and award(s) passed by the Industrial Court dated 16.09.2016 and 21.09.2016 passed in Complaint (ULP) No. 55/2005 and Complaint (ULP) No. 83/2005 respectively were the subject matter of writ petitions before the High Court. By the impugned common judgment and order, the High Court has dismissed/disposed of the aforesaid writ “(a) The candidates in Annexures ‘A’ and ‘B’, who have not completed 45 years of age as on date, i.e., 01.03.2022 shall be granted compassionate appointment on or before 30.04.2022 in the light of the vacancies available in view of the affidavit in reply dated 21.03.2022. (b) Those candidates who have completed 45 years of age as on 01.03.2022, would be entitled for a lump sum compensation of Rs. 5 lacs in lieu of compassionate appointment. Such compensation amount shall be paid, on or before 31.05.2022. (c) The Municipal Corporation shall issue the orders of appointments to eligible candidates in view of the above directions, on or before 2.3 Feeling aggrieved and dissatisfied with the impugned common judgment and order passed by the High Court, the original writ petitioner – Ahmednagar Mahanagar Palika through its Commissioner has preferred the present appeals. 3. Mr. Suhas Kadam, learned Advocate has appeared on behalf of the appellant – Ahmednagar Mahanagar Palika and Ms. Iyer Shruti Gopal, learned Advocate has appeared on behalf of the respondent – Union. 3.1 Learned counsel appearing on behalf of the appellant – Mahanagar Palika has vehemently submitted that both, the Industrial Court as well as the High Court have passed orders relying upon the judgment and award dated 30.03.1981 passed in Reference IT No. 51 of 1979. That the said award was passed at a time when Ahmednagar Mahanagar Palika was a Municipal Council. In the year 2003, the Municipal Council has been converted to a Municipal Corporation and the employees of the Mahanagar Palika/Municipal Corporation are governed by the rules and regulations/scheme framed by the State Government. Therefore, the employees of the Mahanagar Palika/Municipal Corporation shall be entitled to the benefit of the scheme of appointment on compassionate grounds at par with the government employees. It is submitted that therefore both, the Industrial Court as well as the High Court have committed a grave error in directing the Mahanagar Palika/Municipal Corporation to give appointment to the heirs of the employees on their retirement and/or superannuation as per judgment and award dated 30.03.1981 passed in Reference IT No. 51 of 1979, which was in the year 1981 at the time when the Municipal Council was in existence. 3.2 Relying upon the recent decision of this Court in the case of The Secretary to Govt. Department of Education (Primary) & Others v. Bheemesh alias Bheemappa, 2021 SCC OnLine SC 1264, it is further submitted that the appointment on compassionate ground shall have to be made as per the modified scheme. It is submitted that in the present case, subsequently by judgment and award dated 21.02.2005 passed in Reference (IT) No. 2/1993, the Industrial Court modified the demand with respect to employment to the heirs of the employees on their retirement/superannuation and directed that only the legal heirs of the deceased employees shall be entitled to appointment on compassionate ground. Also the legal heirs of all the categories shall be entitled to compassionate appointment as per the government resolutions and circulars at par with the government employees. It is submitted that both, the Industrial Court as well as the High Court have seriously erred in directing the Mahanagar Palika to given appointment to the heirs of the employees on their retirement/superannuation. 3.3 It is further submitted that even otherwise such a direction to give appointment to the heirs of the employees on their retirement/superannuation shall be hit by Article 14 of the Constitution of India and against the object of providing appointment on compassionate 3.4 It is submitted that as observed and held by this Court in a catena of decisions, the appointment on compassionate grounds is not automatic, but subject to strict scrutiny of various parameters including the financial position of the family, the economic dependence of the family upon the deceased employee and such factors. It is submitted therefore also that such a direction to give appointment to the heirs of the employees on their retirement/superannuation ought not have been passed by the Industrial Court, confirmed by the High Court. 3.5 It is next submitted by the learned counsel appearing on behalf of the Mahanagar Palika/Municipal Corporation, that even otherwise, the direction issued by the High Court to pay a lump sum compensation of Rs. 5 lacs in lieu of the compassionate appointment to those candidates who have completed 45 years of age as on 1.3.2022 is unsustainable. 3.6 Making the above submissions and relying upon the above decision, it is prayed to allow the present appeals. 4. Both these appeals are vehemently opposed by learned counsel appearing on behalf of the respondent. 4.1 It is vehemently submitted by the learned counsel appearing on behalf of the respondent that in the facts and circumstances of the case and considering the binding nature of the judgment and award passed by the Industrial Court dated 30.03.1981 in Reference IT No. 51 of 1979, neither the Industrial Court nor the High Court have committed any error in directing appointments to be given to the heirs of the employees on their superannuation and/or retirement. 4.2 It is submitted that in the present case the parties are governed by the terms of the Bipartite Agreement resulting in judgment and award dated 30.03.1981 passed in Reference IT No. 51 of 1979. It is submitted therefore that there is no question of any discretion and the heirs of the employees are entitled to the appointment on compassionate grounds on the superannuation and/or retirement of the concerned employees. Reliance is placed on the decision of this Court in the case of Subhadra v. Ministry of Coal and another, (2018) 11 SCC 201. 4.3 It is further submitted that as the heirs of the employees acquire the right of appointment under the judgment and award passed in Reference IT No. 51 of 1979, the concerned heirs of the employees are entitled to appointment being heirs of the employees on their retirement and/or superannuation. 4.4 It is contended that the appointment to the heirs of the employees on their superannuation and/or retirement cannot be said to be an appointment on compassionate grounds but it is called varas hakka. It is submitted that therefore any decision of this Court on compassionate appointment shall not be applicable to the facts of the case on hand. 5. We have heard learned counsel for the respective parties at length. At the outset, it is required to be noted that in the present case, the Industrial Court has directed the Mahanagar Palika/Municipal Corporation to give appointment to the heirs of the employees on their superannuation/retirement as per judgment and award passed in Reference IT No. 51 of 1979. However, it is required to be noted that the said judgment and award was passed in the year 1981, at the time when the Municipal Council was in existence. That thereafter in the year 2003, the Municipal Council has been converted to Municipal Corporation/Mahanagar Palika and all the employees under Mahanagar Palika/Municipal Corporation are governed by the scheme/rules & regulations framed by the State Government, which does not provide for any appointment on compassionate grounds or the appointment to the heirs of the employees on their superannuation/retirement. 6. Even otherwise, it is required to be noted that in Reference (IT) No. 2/1993, which was at the instance of Mahanagar Palika on the notice of change in respect of demand of employment to the heirs of the employee as per Reference (IT) No. 51 of 1979, the Industrial Court vide judgment and award dated 21.02.2005 directed the appointment on compassionate grounds to the heirs of the deceased employees only. It was specifically observed by the Industrial Court that at the time of passing earlier award in Reference IT No. 51 of 1979, i.e., in the year 1979 the demand to provide the employment to the legal heirs of the employees on their retirement/superannuation was reasonable, however, in the present situation the said demand does not appear to be good and reasonable. The Industrial Court further observed that, needless to say, now-a-days the unemployment problem is a very major problem and in spite of high qualifications the qualified persons are not getting jobs and they remain unemployed. While modifying the demand and directing to provide appointment on compassionate grounds to the legal heirs of the employees (on the death of the concerned employee), in judgment and award dated 21.02.2005 in Reference IT No. 2/1993, it was observed by the Industrial Court as under: “It seems from the oral submissions of the parties that, at the time of passing earlier award in Ref. (IT) No. 51/1979 i.e., in the year 1979 the demand for providing the employment to the legal heir of employee was reasonable however in present situation the said demand does not appears to be good and reasonable. Needless to say, that nowadays the unemployment problems is very major. In spite of high qualifications, the qualified persons are not getting job and they are unemployed. In view of this demand there is no scope for qualified unemployed person to get the job in the establishment of the party no. 1, as the legal heirs of the employees will get the job in place of the employee working in the establishment of the party no. 1. Mr. Patil learned advocate for the party no. 1 rightly submitted that on the basis of this demand the legal heirs are claiming employment on attaining the majority and if the legal heir is minor at the time of superannuation and that too after 10 years also under such circumstances in my opinion also the demand of providing employment to the legal heirs does not appears to be proper. It has sufficiently come on record through the oral evidence of the parties that as per this demand the employment has been claimed as of right and there is no scope for selection of proper candidate, even the guidelines of the government regarding Reservation could not be followed. It is pertinent to note here that, as per the government policy certain post in the establishment are reserved for back ward classes and on those post- employment is to be given to the candidate from reserve category however as there is no scope for employment to others, therefore, it is very difficult for the candidates from reserve category to get employment in the establishment of the party no. 1. It has also come on record that, as per this demand the employment is being claimed for distant relative on the basis of adoption. True it is that the adoption can be made as per law and after adoption the adopted child because legal heir of that person however it seems from the various copies of documents placed before the Court that employment has been claimed for nephew on the basis of affidavit saying that the nephew is taking care of that employee. Similarly, in another matter the employment is sought for adopted son by application dated 02.05.1997 and deed of adoption has been executed on 30.04.1997. From these documents it can be said positively that the demand or providing employment to the legal heirs of the employees has been misused. Furthermore, nothing has been placed on record on behalf of the party no. 2 union that such practice is being continued in any other establishment. The witness of the party no. 2 union specifically asked about the however he could not brought any documentary evidence. In my opinion also even though this demand was reasonable in 1979 however the same is certainly not reasonable and justified during present days and in the light of misuse of the demand it can be safely said that the party no. 1 is justified in seeking change in the demand in respect of providing the employment to the legal heirs of the employees on superannuation, invalidity or resignation, be now I am inclined to modify the demand and directing the party no. 1 to provide (1) employment to the legal heirs of the employees of Class-IV category working in health department only (2) to provide the employment to the legal heirs of all categories i.e. Class-I category to Class-IV category on compassionate ground as per government Resolutions and circulars at par with governments employees.” In view of the above also, thereafter it was not open for the Industrial Court and/or even the High Court to direct the Mahanagar Palika/Municipal Corporation to provide appointment to the heirs of the employees on their retirement/superannuation, relying upon the judgment and award passed by the Industrial Court in Reference IT No. 51 of 1979. 7. After the conversion of the Municipal Council to Municipal Corporation/Mahanagar Palika, the employees of the Mahanagar Palika/Municipal Corporation shall be governed by the scheme framed by the State Government and at par with the government employees. As per the recent decision of this Court in the case of Bheemesh alias Bheemappa (supra), the appointment on compassionate ground shall be as per the modified scheme. Therefore, the employees of the Mahanagar Palika/Municipal Corporation shall be governed by the scheme of the State Government at par with the government employees, which does not provide for appointment on compassionate grounds to the heirs of the employees on their retirement and/or superannuation. 8. Even otherwise, such an appointment to the heirs of the employees on their retirement and/or superannuation shall be contrary to the object and purpose of appointment on compassionate grounds and is hit by Article 14 of the Constitution of India. As observed and held by this Court in a catena of decisions, compassionate appointment shall always be treated as an exception to the normal method of recruitment. The appointment on compassionate grounds is provided upon the death of an employee in harness without any kind of security whatsoever. The appointment on compassionate grounds is not automatic and shall be subject to the strict scrutiny of various parameters including the financial position of the family, the economic dependence of the family upon the deceased employee and the avocation of the other members of the family. No one can claim to have a vested right for appointment on compassionate grounds. Therefore, appointment on compassionate grounds cannot be extended to the heirs of the employees on their superannuation and/or retirement. If such an appointment is permitted, in that case, outsiders shall never get an appointment and only the heirs of the employees on their superannuation and/or retirement shall get an appointment and those who are the outsiders shall never get an opportunity to get an appointment though they may be more meritorious and/or well educated and/or more qualified. Therefore, the submission on behalf of the respondent that the appointment is not on compassionate grounds but the same be called as varas hakka cannot be accepted. Even if the same be called as varas hakka the same is not supported by any scheme and even the same also can be said to be violative of Article 14 as well as Article 15 of the Constitution of India. 13. In view of the above and for the reasons stated above, both the Judgment and award passed by the Industrial Court as well as the High Court in directing the Mahanagar Palika/ Municipal Corporation to give appointment to the heirs of the employees on their superannuation and/or retirement is unsustainable and the same deserves to be quashed and set aside. 14. In view of the above and for the reasons stated above, both these appeals succeed. The impugned common judgment and order dated 22.03.2022 passed by the High Court as well as the judgment(s) and award(s) dated 16.09.2016 and 21.09.2016 passed in Complaint (ULP) No. 55/2005 and Complaint (ULP) No. 83/2005 respectively directing the Mahanagar Palika/Municipal Corporation to appoint the heirs of the employees on their retirement/superannuation in terms of judgment and award dated 30.03.1981 passed in Reference IT No. 51 of 1979 are hereby quashed and set aside. 15. Accordingly, the instant appeals are allowed in the aforesaid terms. However, in the facts and circumstances of the case, there shall be no order as to costs.
The Supreme Court stated that giving jobs to employees' family members when those employees retire is unfair. It goes against rules in India's Constitution about equal treatment for everyone (Articles 14 and 15). The judges, Justices MR Shah and BV Nagarathna, explained why this is unfair. They said that if these jobs were allowed, people from outside would never get a chance. Only the retiring employees' family members would get jobs. This would happen even if other people were more skilled, better educated, or more qualified. In this specific case, a labor court told the Ahmednagar City Council to give jobs to employees' family members when the employees retired. This order came from an agreement between the workers' union and the City Council. The union had demanded that family members of retiring employees get jobs. The City Council appealed this order to the Gujarat High Court, but the High Court rejected their appeal. When the case reached the Supreme Court, lawyer Suhas Kadam, representing the City Council, argued. He said that forcing the City Council to give jobs to retiring employees' family members would violate Article 14 of the Constitution. He also said it goes against the reason for giving jobs on "compassionate grounds" (for reasons of hardship). But lawyer Iyer Shruti Gopal, representing the other side, argued differently. She said that these jobs for retiring employees' families were not based on compassion. Instead, she called it "varas hakka," which means a right to inherit a position. Therefore, she said, previous Supreme Court rulings about compassionate appointments shouldn't apply here. The Court pointed out that City Council employees follow the same rules as state government employees. These rules do not allow for jobs to be given to employees' family members when the employees retire, even for compassionate reasons. The judges agreed with the City Council's appeal and made the following points: The judges also said that giving jobs to family members when employees retire goes against the whole idea of "compassionate appointments" and breaks Article 14 of the Constitution. The Court has said many times before that compassionate appointments are rare special cases, not the usual way to hire. These special jobs are only given when an employee dies while working, and their family is left without any financial support. Even then, a compassionate appointment is not automatic. It must be carefully checked based on many things. These include the family's money situation, how much they depended on the deceased employee, and what other family members do for a living. No one has an automatic right to a compassionate appointment. Therefore, these special compassionate jobs cannot be given to employees' families just because an employee retires. If this were allowed, people not related to the employees would never get jobs. Only the retiring employees' family members would get them, even if others were more skilled, better educated, or more qualified. So, the argument from the other side that these jobs are "varas hakka" (a right to inherit a position) and not compassionate appointments cannot be accepted. Even if it were called "varas hakka," there are no rules to support it. And it would still break both Article 14 and Article 15 of the Constitution.
1. Feeling aggrieved and dissatisfied with the impugned common judgment and order dated 22.03.2022 passed by the High Court of Judicature at Bombay, Bench at Aurangabad in Writ Petition Nos. 6806/2017 & 3465/2017, by which the High Court has dismissed the said two writ petitions preferred by the appellant herein – Ahmednagar Mahanagar Palika, Ahmednagar and has confirmed the judgment(s) and award(s) passed by the Industrial Court dated 16.09.2016 and 21.09.2016 in Complaint (ULP) No. 55/2005 and Complaint (ULP) No. 83/2005 respectively, directing the Ahmednagar Mahanagar Palika to provide compassionate appointment to the eligible heirs in accordance with the provisions of award dated 30.03.1981 passed in Reference IT No. 51 of 1979, the Ahmednagar Mahanagar Palika has preferred the present appeals. 2. The facts leading to the present appeals in a nutshell are as under: That in the year 2003, Ahmednagar Municipal Council was converted to Ahmednagar Mahanagar Palika. At the time when the Municipal Council was in existence, an industrial dispute was raised by the Union being Reference IT No. 51 of 1979. Demand No. 3 was with respect to the employment to be given to the heirs of the employees. At the relevant time, it was agreed by the Municipal Council that the employees in Class-IV category (if they die before their retirement) in all departments, except Health Department, if they become invalid, or if they retire, their heirs will be given appointment in their place. Consequently, by judgment and award dated 30.03.1981, the Industrial Court directed that the employees in Class-IV category, if they die before their retirement; if they become invalid, or if they retire, their heirs should be given appointment in their place. 2.1 It appears that thereafter some further demands were raised and the judgment and award dated 30.03.1981 in Reference IT No. 51 of 1979 was sought to be modified and therefore the references were made to the Industrial Court being Reference (IT) No. 2 of 1993 to Reference (IT) No. 4 of 1993. Demand No. 4 was with respect to the employment of the heirs of the employees (the same was at the instance of the Mahanagar palika). Ahmednagar Mahanagar Palika gave a notice of change in respect of demand of employment to the heirs of the employees as per Reference IT No. 51 of 1979 and the said dispute was referred for adjudication as Reference (IT) No. 2 of 1993. By judgment and award dated 21.02.2005, with respect to the aforesaid Demand No. 4, the Industrial Court modified the earlier award in Reference IT No. 51 of 1979 and directed the Ahmednagar Mahanagar Palika to provide (1) employment to the legal heirs of the employees of Class-IV category working in health department only (2) to provide the employment to the legal heirs of all categories, i.e., Class-I category to Class-IV category on compassionate ground as per government resolutions and circulars at par with government employees. Meaning thereby, under the said award, the compassionate appointment to the heirs of the employees on their superannuation/retirement was not provided and the compassionate appointment was provided only to the heirs of the deceased employees of Class-IV category. 2.2 It appears that thereafter two other industrial disputes were raised by the Ahmednagar Mahanagar Palika Kamgar Union against the Municipal Corporation/Mahanagar Palika which were in the year 2005 being Complaint (ULP) No. 55 of 2005 and Complaint (ULP) No. 83 of 2005. One of the reliefs claimed was for employment for the legal heirs of retired employees as per judgment and award dated 30.03.1981 passed in Reference IT No. 51 of 1979. By judgment(s) and award(s) dated 16.09.2016 and 21.09.2016 respectively, impugned before the High Court, the Industrial Court directed the Ahmednagar Mahanagar Palika to provide employment to the eligible heirs in accordance with the provisions in the award passed in Reference IT No. 51 of 1979. Thus, the Industrial Court directed to provide employment to the heirs of the employees on their retirement on attaining the age of superannuation. The judgment(s) and award(s) passed by the Industrial Court dated 16.09.2016 and 21.09.2016 passed in Complaint (ULP) No. 55/2005 and Complaint (ULP) No. 83/2005 respectively were the subject matter of writ petitions before the High Court. By the impugned common judgment and order, the High Court has dismissed/disposed of the aforesaid writ “(a) The candidates in Annexures ‘A’ and ‘B’, who have not completed 45 years of age as on date, i.e., 01.03.2022 shall be granted compassionate appointment on or before 30.04.2022 in the light of the vacancies available in view of the affidavit in reply dated 21.03.2022. (b) Those candidates who have completed 45 years of age as on 01.03.2022, would be entitled for a lump sum compensation of Rs. 5 lacs in lieu of compassionate appointment. Such compensation amount shall be paid, on or before 31.05.2022. (c) The Municipal Corporation shall issue the orders of appointments to eligible candidates in view of the above directions, on or before 2.3 Feeling aggrieved and dissatisfied with the impugned common judgment and order passed by the High Court, the original writ petitioner – Ahmednagar Mahanagar Palika through its Commissioner has preferred the present appeals. 3. Mr. Suhas Kadam, learned Advocate has appeared on behalf of the appellant – Ahmednagar Mahanagar Palika and Ms. Iyer Shruti Gopal, learned Advocate has appeared on behalf of the respondent – Union. 3.1 Learned counsel appearing on behalf of the appellant – Mahanagar Palika has vehemently submitted that both, the Industrial Court as well as the High Court have passed orders relying upon the judgment and award dated 30.03.1981 passed in Reference IT No. 51 of 1979. That the said award was passed at a time when Ahmednagar Mahanagar Palika was a Municipal Council. In the year 2003, the Municipal Council has been converted to a Municipal Corporation and the employees of the Mahanagar Palika/Municipal Corporation are governed by the rules and regulations/scheme framed by the State Government. Therefore, the employees of the Mahanagar Palika/Municipal Corporation shall be entitled to the benefit of the scheme of appointment on compassionate grounds at par with the government employees. It is submitted that therefore both, the Industrial Court as well as the High Court have committed a grave error in directing the Mahanagar Palika/Municipal Corporation to give appointment to the heirs of the employees on their retirement and/or superannuation as per judgment and award dated 30.03.1981 passed in Reference IT No. 51 of 1979, which was in the year 1981 at the time when the Municipal Council was in existence. 3.2 Relying upon the recent decision of this Court in the case of The Secretary to Govt. Department of Education (Primary) & Others v. Bheemesh alias Bheemappa, 2021 SCC OnLine SC 1264, it is further submitted that the appointment on compassionate ground shall have to be made as per the modified scheme. It is submitted that in the present case, subsequently by judgment and award dated 21.02.2005 passed in Reference (IT) No. 2/1993, the Industrial Court modified the demand with respect to employment to the heirs of the employees on their retirement/superannuation and directed that only the legal heirs of the deceased employees shall be entitled to appointment on compassionate ground. Also the legal heirs of all the categories shall be entitled to compassionate appointment as per the government resolutions and circulars at par with the government employees. It is submitted that both, the Industrial Court as well as the High Court have seriously erred in directing the Mahanagar Palika to given appointment to the heirs of the employees on their retirement/superannuation. 3.3 It is further submitted that even otherwise such a direction to give appointment to the heirs of the employees on their retirement/superannuation shall be hit by Article 14 of the Constitution of India and against the object of providing appointment on compassionate 3.4 It is submitted that as observed and held by this Court in a catena of decisions, the appointment on compassionate grounds is not automatic, but subject to strict scrutiny of various parameters including the financial position of the family, the economic dependence of the family upon the deceased employee and such factors. It is submitted therefore also that such a direction to give appointment to the heirs of the employees on their retirement/superannuation ought not have been passed by the Industrial Court, confirmed by the High Court. 3.5 It is next submitted by the learned counsel appearing on behalf of the Mahanagar Palika/Municipal Corporation, that even otherwise, the direction issued by the High Court to pay a lump sum compensation of Rs. 5 lacs in lieu of the compassionate appointment to those candidates who have completed 45 years of age as on 1.3.2022 is unsustainable. 3.6 Making the above submissions and relying upon the above decision, it is prayed to allow the present appeals. 4. Both these appeals are vehemently opposed by learned counsel appearing on behalf of the respondent. 4.1 It is vehemently submitted by the learned counsel appearing on behalf of the respondent that in the facts and circumstances of the case and considering the binding nature of the judgment and award passed by the Industrial Court dated 30.03.1981 in Reference IT No. 51 of 1979, neither the Industrial Court nor the High Court have committed any error in directing appointments to be given to the heirs of the employees on their superannuation and/or retirement. 4.2 It is submitted that in the present case the parties are governed by the terms of the Bipartite Agreement resulting in judgment and award dated 30.03.1981 passed in Reference IT No. 51 of 1979. It is submitted therefore that there is no question of any discretion and the heirs of the employees are entitled to the appointment on compassionate grounds on the superannuation and/or retirement of the concerned employees. Reliance is placed on the decision of this Court in the case of Subhadra v. Ministry of Coal and another, (2018) 11 SCC 201. 4.3 It is further submitted that as the heirs of the employees acquire the right of appointment under the judgment and award passed in Reference IT No. 51 of 1979, the concerned heirs of the employees are entitled to appointment being heirs of the employees on their retirement and/or superannuation. 4.4 It is contended that the appointment to the heirs of the employees on their superannuation and/or retirement cannot be said to be an appointment on compassionate grounds but it is called varas hakka. It is submitted that therefore any decision of this Court on compassionate appointment shall not be applicable to the facts of the case on hand. 5. We have heard learned counsel for the respective parties at length. At the outset, it is required to be noted that in the present case, the Industrial Court has directed the Mahanagar Palika/Municipal Corporation to give appointment to the heirs of the employees on their superannuation/retirement as per judgment and award passed in Reference IT No. 51 of 1979. However, it is required to be noted that the said judgment and award was passed in the year 1981, at the time when the Municipal Council was in existence. That thereafter in the year 2003, the Municipal Council has been converted to Municipal Corporation/Mahanagar Palika and all the employees under Mahanagar Palika/Municipal Corporation are governed by the scheme/rules & regulations framed by the State Government, which does not provide for any appointment on compassionate grounds or the appointment to the heirs of the employees on their superannuation/retirement. 6. Even otherwise, it is required to be noted that in Reference (IT) No. 2/1993, which was at the instance of Mahanagar Palika on the notice of change in respect of demand of employment to the heirs of the employee as per Reference (IT) No. 51 of 1979, the Industrial Court vide judgment and award dated 21.02.2005 directed the appointment on compassionate grounds to the heirs of the deceased employees only. It was specifically observed by the Industrial Court that at the time of passing earlier award in Reference IT No. 51 of 1979, i.e., in the year 1979 the demand to provide the employment to the legal heirs of the employees on their retirement/superannuation was reasonable, however, in the present situation the said demand does not appear to be good and reasonable. The Industrial Court further observed that, needless to say, now-a-days the unemployment problem is a very major problem and in spite of high qualifications the qualified persons are not getting jobs and they remain unemployed. While modifying the demand and directing to provide appointment on compassionate grounds to the legal heirs of the employees (on the death of the concerned employee), in judgment and award dated 21.02.2005 in Reference IT No. 2/1993, it was observed by the Industrial Court as under: “It seems from the oral submissions of the parties that, at the time of passing earlier award in Ref. (IT) No. 51/1979 i.e., in the year 1979 the demand for providing the employment to the legal heir of employee was reasonable however in present situation the said demand does not appears to be good and reasonable. Needless to say, that nowadays the unemployment problems is very major. In spite of high qualifications, the qualified persons are not getting job and they are unemployed. In view of this demand there is no scope for qualified unemployed person to get the job in the establishment of the party no. 1, as the legal heirs of the employees will get the job in place of the employee working in the establishment of the party no. 1. Mr. Patil learned advocate for the party no. 1 rightly submitted that on the basis of this demand the legal heirs are claiming employment on attaining the majority and if the legal heir is minor at the time of superannuation and that too after 10 years also under such circumstances in my opinion also the demand of providing employment to the legal heirs does not appears to be proper. It has sufficiently come on record through the oral evidence of the parties that as per this demand the employment has been claimed as of right and there is no scope for selection of proper candidate, even the guidelines of the government regarding Reservation could not be followed. It is pertinent to note here that, as per the government policy certain post in the establishment are reserved for back ward classes and on those post- employment is to be given to the candidate from reserve category however as there is no scope for employment to others, therefore, it is very difficult for the candidates from reserve category to get employment in the establishment of the party no. 1. It has also come on record that, as per this demand the employment is being claimed for distant relative on the basis of adoption. True it is that the adoption can be made as per law and after adoption the adopted child because legal heir of that person however it seems from the various copies of documents placed before the Court that employment has been claimed for nephew on the basis of affidavit saying that the nephew is taking care of that employee. Similarly, in another matter the employment is sought for adopted son by application dated 02.05.1997 and deed of adoption has been executed on 30.04.1997. From these documents it can be said positively that the demand or providing employment to the legal heirs of the employees has been misused. Furthermore, nothing has been placed on record on behalf of the party no. 2 union that such practice is being continued in any other establishment. The witness of the party no. 2 union specifically asked about the however he could not brought any documentary evidence. In my opinion also even though this demand was reasonable in 1979 however the same is certainly not reasonable and justified during present days and in the light of misuse of the demand it can be safely said that the party no. 1 is justified in seeking change in the demand in respect of providing the employment to the legal heirs of the employees on superannuation, invalidity or resignation, be now I am inclined to modify the demand and directing the party no. 1 to provide (1) employment to the legal heirs of the employees of Class-IV category working in health department only (2) to provide the employment to the legal heirs of all categories i.e. Class-I category to Class-IV category on compassionate ground as per government Resolutions and circulars at par with governments employees.” In view of the above also, thereafter it was not open for the Industrial Court and/or even the High Court to direct the Mahanagar Palika/Municipal Corporation to provide appointment to the heirs of the employees on their retirement/superannuation, relying upon the judgment and award passed by the Industrial Court in Reference IT No. 51 of 1979. 7. After the conversion of the Municipal Council to Municipal Corporation/Mahanagar Palika, the employees of the Mahanagar Palika/Municipal Corporation shall be governed by the scheme framed by the State Government and at par with the government employees. As per the recent decision of this Court in the case of Bheemesh alias Bheemappa (supra), the appointment on compassionate ground shall be as per the modified scheme. Therefore, the employees of the Mahanagar Palika/Municipal Corporation shall be governed by the scheme of the State Government at par with the government employees, which does not provide for appointment on compassionate grounds to the heirs of the employees on their retirement and/or superannuation. 8. Even otherwise, such an appointment to the heirs of the employees on their retirement and/or superannuation shall be contrary to the object and purpose of appointment on compassionate grounds and is hit by Article 14 of the Constitution of India. As observed and held by this Court in a catena of decisions, compassionate appointment shall always be treated as an exception to the normal method of recruitment. The appointment on compassionate grounds is provided upon the death of an employee in harness without any kind of security whatsoever. The appointment on compassionate grounds is not automatic and shall be subject to the strict scrutiny of various parameters including the financial position of the family, the economic dependence of the family upon the deceased employee and the avocation of the other members of the family. No one can claim to have a vested right for appointment on compassionate grounds. Therefore, appointment on compassionate grounds cannot be extended to the heirs of the employees on their superannuation and/or retirement. If such an appointment is permitted, in that case, outsiders shall never get an appointment and only the heirs of the employees on their superannuation and/or retirement shall get an appointment and those who are the outsiders shall never get an opportunity to get an appointment though they may be more meritorious and/or well educated and/or more qualified. Therefore, the submission on behalf of the respondent that the appointment is not on compassionate grounds but the same be called as varas hakka cannot be accepted. Even if the same be called as varas hakka the same is not supported by any scheme and even the same also can be said to be violative of Article 14 as well as Article 15 of the Constitution of India. 13. In view of the above and for the reasons stated above, both the Judgment and award passed by the Industrial Court as well as the High Court in directing the Mahanagar Palika/ Municipal Corporation to give appointment to the heirs of the employees on their superannuation and/or retirement is unsustainable and the same deserves to be quashed and set aside. 14. In view of the above and for the reasons stated above, both these appeals succeed. The impugned common judgment and order dated 22.03.2022 passed by the High Court as well as the judgment(s) and award(s) dated 16.09.2016 and 21.09.2016 passed in Complaint (ULP) No. 55/2005 and Complaint (ULP) No. 83/2005 respectively directing the Mahanagar Palika/Municipal Corporation to appoint the heirs of the employees on their retirement/superannuation in terms of judgment and award dated 30.03.1981 passed in Reference IT No. 51 of 1979 are hereby quashed and set aside. 15. Accordingly, the instant appeals are allowed in the aforesaid terms. However, in the facts and circumstances of the case, there shall be no order as to costs.
The Supreme Court stated that giving jobs to employees' family members when those employees retire is unfair. It goes against rules in India's Constitution about equal treatment for everyone (Articles 14 and 15). The judges, Justices MR Shah and BV Nagarathna, explained why this is unfair. They said that if these jobs were allowed, people from outside would never get a chance. Only the retiring employees' family members would get jobs. This would happen even if other people were more skilled, better educated, or more qualified. In this specific case, a labor court told the Ahmednagar City Council to give jobs to employees' family members when the employees retired. This order came from an agreement between the workers' union and the City Council. The union had demanded that family members of retiring employees get jobs. The City Council appealed this order to the Gujarat High Court, but the High Court rejected their appeal. When the case reached the Supreme Court, lawyer Suhas Kadam, representing the City Council, argued. He said that forcing the City Council to give jobs to retiring employees' family members would violate Article 14 of the Constitution. He also said it goes against the reason for giving jobs on "compassionate grounds" (for reasons of hardship). But lawyer Iyer Shruti Gopal, representing the other side, argued differently. She said that these jobs for retiring employees' families were not based on compassion. Instead, she called it "varas hakka," which means a right to inherit a position. Therefore, she said, previous Supreme Court rulings about compassionate appointments shouldn't apply here. The Court pointed out that City Council employees follow the same rules as state government employees. These rules do not allow for jobs to be given to employees' family members when the employees retire, even for compassionate reasons. The judges agreed with the City Council's appeal and made the following points: The judges also said that giving jobs to family members when employees retire goes against the whole idea of "compassionate appointments" and breaks Article 14 of the Constitution. The Court has said many times before that compassionate appointments are rare special cases, not the usual way to hire. These special jobs are only given when an employee dies while working, and their family is left without any financial support. Even then, a compassionate appointment is not automatic. It must be carefully checked based on many things. These include the family's money situation, how much they depended on the deceased employee, and what other family members do for a living. No one has an automatic right to a compassionate appointment. Therefore, these special compassionate jobs cannot be given to employees' families just because an employee retires. If this were allowed, people not related to the employees would never get jobs. Only the retiring employees' family members would get them, even if others were more skilled, better educated, or more qualified. So, the argument from the other side that these jobs are "varas hakka" (a right to inherit a position) and not compassionate appointments cannot be accepted. Even if it were called "varas hakka," there are no rules to support it. And it would still break both Article 14 and Article 15 of the Constitution.
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2.2 In furtherance of the aforesaid FIR, the petitioner came to be arrested and thereby, an application being Criminal Misc. Application No.503 of 2022 came to be preferred under Section 439 of the Cr.P.C. for seeking, inter-alia, regular bail. The said application came up for hearing before the learned Principal District and Sessions Judge (Designated Court), Rajkot, who, vide its order dated 22.4.2022, allowed the same with certain conditions, mainly Condition Nos.4 and 6, which “(4) The applicant to produce bank guarantee of sand Six Hundred Ninety Five Only) in the name of Nazir, District Court, Rajkot, within two weeks of his release from custody. However, the payment / dis- bursement shall be subject to the provisions of G.P.I.D. Act and/or final decision of the trial. (6) In case the I.0. fails to recover the amount of sand Six Hundred Ninety Five Only) from the appli- cant, the bank guarantee shall stand forfeited in favour of the complainant -State.” 3. Being aggrieved by the aforesaid, the petitioner has approached this Court by way of present Special Criminal Application for the reliefs stated herein-above. 4. This Court had an occasion to deal with and decide somewhat similar issue in Special Criminal Application No.1692, decided on 9.6.2022, wherein in Para.9 following question was framed and decided : “9. So far as deletion of condition No.6 is concerned, short but interesting question of law arises for consideration of this Court is whether the Court while exercising powers under Section 439 of the Cr.P.C., can impose such condition which amounts to exercising powers envisaged under the another enactment i.e. Gujarat Protection of Interest of Depositors (In Financial Establishments) Act, 5. This Court has in detail considered the provision of law and observed as under : 10. So as to decide the aforesaid question, in my view, it would be apt to consider relevant provisions of the Act of 2003, which is as under : “4. Attachment of properties on default of return of deposit. (1) Notwithstanding anything contained in any other law for the time being in force, (i) Where upon complaint received from the depositor or otherwise, the State Government is satisfied that any Financial Establishment has failed, (a) to return the deposit on maturity on demand by the depositor; or (b) to pay interest or other assured (c) to provide the service promised against such deposit; or (ii) Where the State Government has reason to believe that any Financial Establishment is acting in a calculated manner detrimental to the interest of the depositors with an intention to defraud and if the State Government is satisfied that such Financial Establishment is not likely to return the deposits or make payment of interest or other benefits assured or to provide the services against which the deposit is received, the State Government may, in order to protect the interest of the depositors of such Financial Establishment, after recording the reasons in writing, issue an order by publishing it in the Official Gazette, for attaching the money, property or assets belonging to or believed to have been acquired by such Financial Establishment either in its own name or in the name of any other person from out of the deposits collected by the Financial Establishment, or if it transpires that such moneys, properties or assets, is not available for attachment or not sufficient for repayment of the deposits, such other property or assets of the said Financial Establishment or of the promoter, director, partner or member of the said establishment as the State Government may think fit. (2) On publication of the order under sub- sec. (1), all the moneys, properties and assets of the Financial Establishment and of the person mentioned therein shall forthwith vest in the Competent Authority pending further order from the Designated Court. (3) The Collector of a district shall be competent within his jurisdiction to receive the complaint under sub-sec. (1) and he shall forward such complaint alongwith his report to the State Government at the earliest and shall send a copy of the complaint to the concerned Superintendent of Police or Commissioner of Police, as the case may be, for investigation. 5. Appointment of Competent Authority :- (1) The State Government shall while issuing the order under sub-sec. (1) of Sec. 4, appoint an officer not below the rank of the Deputy Collector to be the Competent Authority to exercise control over the moneys, properties and assets attached by the State Government under Sec. 4. (2) The Competent Authority shall have such other powers and discharge such other functions as may be prescribed by rules for carrying out the purposes of this Act. (3) The Competent Authority shall apply, within thirty days from the date of the publication of the order made under Sec. 4 to the Designated Court, accompanied by one or more affidavits stating therein the grounds on which the State Government has issued the said order and the amount of moneys or other properties or assets belonging to or believed to have been acquired out of the deposits and the details, if any, or persons in whose name such property is believed to have been invested or acquired or any other property attached under Sec. 4, for such further orders as the Designated Court may find necessary. (4) The Competent Authority may, also make an application to any Special Court or Designated Court or any other judicial forum established or constituted or entrusted with the powers by any other State Government for adjudicating any issue or subject matter pertaining to moneys or properties or assets of the Financial Establishment under any similar enactment in respect of moneys or properties or assets belonging to or ostensibly belonging to the Financial Establishment or of any person notified under this Act situated within the territorial jurisdiction of that Special Court or Designated Court or any judicial forum, as the case may be, for passing appropriate orders to give effect to the provisions of this Act. 6. Duties and powers of Competent Authority:- (1) The Competent Authority, on receipt of order of his appointment, shall take such necessary actions as it is necessary or expedient for taking physical possession of all the moneys, properties and assets of the concerned Financial Establishment expeditiously and he shall have all the powers which are necessary for the aforesaid purpose. (2) Without prejudice to the generality of the powers vested under sub-sec. (1), the Competent Authority shall be entitled to - (a) require assistance of any police authority or any other authority or person and on such requisition, it shall be the duty of the police authority or such other authority or person to extend necessary assistance; (b) open bank accounts in any scheduled commercial bank and credit all moneys realised and operate the bank accounts while dealing; (c) to direct the person to furnish the necessary information relating to moneys, properties and assets of the Financial Establishment to hand over possession of such moneys, properties and assets to the Competent Authority and such person shall comply with the requisition without any loss of tune; (d) appoint legal practitioner or chartered accountant or any other person whose services are necessary for taking possession of assets and realisation of the assets of the Financial (e) sell, receive, transfer, endorse, negotiate or otherwise deal with any marketable security or negotiable instrument belonging to or in the control of the Financial Establishment and give proper discharge for the same; (f) sell, transfer or otherwise realise any movable or immovable property belonging to or in the control of the Financial Establishment either by public auction or with the prior approval of the Designated Court by private Provided that the perishable items of assets shall be sold by public auction at the earliest as the Competent Authority (g) make payment as per the orders passed by the Designated Court from out of the bank accounts; and (h) do all and every acts and deeds which would be necessary for the speedy realisation of the assets of the Financial Explanation. For the purpose of this section, the expression "Financial Establishment" includes the promoters, directors, partners, managers or members of the said establishment or any other person whose property or assets have been attached under Sec. 4. 7. Assessment of assets, deposits and liabilities:- (1) The Competent Authority shall, within thirty days from the date of his appointment, assess the assets, deposits and liabilities of the Financial Establishment and submit the statement thereof to the (2) The Competent Authority thereafter shall issue notice either individually or by means of effective media publication inviting the claims by secured creditors, if any, and also the depositors of the Financial Establishment to submit their claims with sufficient proof in support thereof. 3) Every notice under sub-sec. (2) shall specify that if the statement of claims is not sent to the Competent Authority before the expiry of the period of one month from the date of such notice, the claims shall not be treated as claim entitled to be paid under the provisions of this Act. (4) Every notice to a secured creditor shall require him to value the security before the expiry of the period of one month from the date of the notice and such notice shall also specify that if the statement of the claim together with the valuation of the security is not sent to the Competent Authority within such period, the Competent Authority himself shall value the security to the best of his judgment and his valuation shall be binding on such secured creditors. (5) The Competent Authority shall prepare a statement of dues of the Financial Establishment which is due from various debtors, the assessments of the value of the property and assets of the Financial Establishment and the list of the depositors and their respective dues; and submit the same to the Designated Court. 8. Report by Competent Authority:- The Competent Authority shall, after complying with the provisions of Sec. 7, make an application to the Designated Court seeking permission to make payment to the depositors from out of the money realised. While making such application, the Competent Authority shall assess the liability to the depositors and the other liabilities and in case the money realised or realisable is not sufficient to meet with the entire liability, make a submission to the Designated Court seeking permission for making payment to the depositors and disburse the money as per the orders of the 9. Designated Court :- (1) For the purposes of this Act, the State Government may, with the concurrence of the Chief Justice of the High Court of Gujarat, by notification, in the Official Gazette, constitute one or more Designated Court of the level of the Court of a District and Sessions Judge for such area or for such case or group of cases or such class as may be specified in the notification. (2) No Court, other than the Designated Court shall have jurisdiction to deal with or decide any question which the Designated Court is empowered to deal with or decide by or under this 4. (3) Any case or proceeding pending before any Court or any authority in relation to the moneys, properties or assets of the Financial Establishment covered by an order made under Sec. 4, shall stand transferred to the respective Designated Court and shall be dealt with and decided by such Court in accordance with the provisions of this Act. 10. Powers of Designated Court regarding attachment:- (1) Upon receipt of an application made under Sec. 5, the Designated Court shall issue to the Financial Establishment or to any other person whose moneys, properties or assets are attached by the State Government and vested in the Competent Authority under Sec. 4, a notice accompanied by the application and affidavits and copies of the evidence, if any, recorded, calling upon the said establishment or the said person to show cause on a date to be specified in the notice, why the order of attachment should not be made absolute. (2) The Designated Court shall also issue such notice, to all other persons represented to it, as having or being likely to claim any interest or title in the property of the Financial Establishment or of the person to whom the notice is issued under sub-sec. (1), calling upon all such persons to appear on the same date as that specified in the notice and to make objection if they so desire, to the attachment of the moneys, properties or assets or any portion thereof on the ground that they have interest in such property or portion thereof. (3) Any person claiming an interest in the moneys, properties or assets attached or any portion thereof may, notwithstanding that no notice has been served upon him under this section, make an objection as aforesaid to the Designated Court at any time before an order is passed under sub-sec. (4) or sub-sec. (6). (4) The Designated Court shall, if no objection is made or no cause is shown on or before the specified date under sub-sec. (2), forthwith pass an order making the order of attachment absolute, and issue such direction as may be necessary for realisation of the property, and assets and moneys attached and for equitable distribution among the depositors of the money so realised. (5) If cause shown or any objection is made as aforesaid, the Designated Court shall proceed to investigate the same and in so doing as regards the examination of the parties and in all other respects, the Designated Court shall, subject to the provisions of this 4, follow the summary procedure as contemplated under Order 37 of the Civil Procedure Code, 1908 (5 of 1908) and exercise all the powers of a court in hearing a suit under the said Code and any person making an objection shall be required to adduce evidence to show that at the date of the attachment he had some interest in the property so attached. (6) After investigation under sub-sec. (5), the Designated Court shall pass an order either making the order of attachment passed under sub-sec. (1) of Sec. 4 absolute or varying it by realizing a portion of the property or assets or moneys from attachment or canceling the order of attachment: Provided that the Designated Court shall not release from attachment any interest, which it is satisfied that the Financial Establishment or the person referred to in sub-sec. (1) has in the property or assets, unless it is also satisfied that there will remain under attachment an amount of property of value not less than the value that is required for re- payment to the depositors of such Financial (7) Where an application is made by any person duly authorised or constituted or specified by any other State Government under similar enactment empowering him to exercise control over any moneys or properties or assets attached by that State Government, the Designated Court shall exercise all its powers, as if, such an application were made under this Act and pass appropriate order or give direction on such application so as to give effect to the provisions of such enactment. 11. Power of Designated Court regarding realisation of assets and payment to depositors:- (1) The Designated Court shall have all the powers for giving effect to the provisions of this Act. (2) Without prejudice to the generality of sub- sec. (1), the Designated Court may- (a) give any direction to the Competent Authority as it deems fit, for effective implementation of the provisions of this (b) approve the statement of dues of the Financial Establishment which is due from various debtors, the assessment of the value of the assets of the Financial Establishment and finalise the list of the depositors and their respective dues; (c) direct the Competent Authority to take possession of any property or assets belonging to or in the control of the Financial Establishment and to sell, transfer or realise the attached property or assets either by public auction or by private sale as it deems fit depending upon the nature of property or assets and credit the sale proceeds thereof to the bank accounts; (d) approve the necessary expenditure incurred by the Competent Authority for taking possession and realisation of the properties and assets of the (e) pass an order to make payment to the depositors by the Competent Authority or for proportionate payment to the depositors in the case where the moneys so realised is not sufficient to meet with the entire deposit liability; (f) pass any order appropriate for realisation of the property or assets of the Financial Establishment and repayment to the depositors of such Financial Establishment or on any matter incidental thereto. Explanation. For the purpose of this section, the expression "Financial Establishment" includes the promoter, director, partner, manager or member of the said Establishment or any other person whose properties or assets have been attached under Sec. 4.” 11. Having considered the aforesaid provisions in detail, it appears that the Gujarat Protection of Interest of Depositors (In Financial Establishments) Act, 2003 itself has inbuilt mechanism with regard to offences related to said Act of 2003. It further appears that it is the State Government, who, upon receipt of a complaint, appoints an officer not below the rank of Deputy Collector as the Competent Authority to exercise control over the moneys, properties and assets attached by the State Government under Section 4. It is the competent authority, upon being appointed, takes necessary action of taking physical possession of all the moneys, properties and assets of the concerned financial establishment. The competent authority, after preparing report of the asset, deposit and liability of the financial establishment, submit the same before the Designated Court and thereafter, shall make an application seeking permission of the Designated Court to make payment to the depositors from the money realized and thereafter, the Designated Court, after due investigation, either make an order of attachment absolute or portion of such assets or money realizing from the attachment or cancelled the order of attachment. 12. In view of the aforesaid mechanism, it is clear that ultimate power of any attachment made under the Act of 2003 vests with the Designated Court. The mechanism of the Act of 2003 right from the passing of order under Section 4(1) and thereafter, appointment of competent authority under Section 5 and thereafter, the powers conferred to the Designated Court under Section 10(6) are the special powers and the same have to be in consonance with the provisions of the Act of 2003. The Designated Court has exclusive jurisdiction with regard to passing of any orders under Section 10(6) of the Act of 2003. The Designated Court may make attachment order as absolute or modify or cancel. 13. Keeping in mind the aforesaid legal provisions, more particularly if the Condition No.6 imposed by the learned Sessions Judge, is read over, the same is completely beyond jurisdiction of the learned Sessions Court while exercising powers under Section 439 of the Cr.P.C. I say so because the same is amounting to usurping powers envisaged under Section 10(6) of the Act of 2003, that too without following any procedure as prescribed. Thus, the impugned condition imposed by the Sessions Court while exercising powers under Section 439 of the Cr.P.C., in my considered opinion, is beyond its competence and is also contrary to the provision of the Act of 2003. The Sessions Court while exercising discretionary powers under Section 439 of Cr.P.C. and while imposing condition, could not have overlooked the provision of the Act of 2003 and could not have passed an order imposing condition akin to provision of Section 10(6) of the Act of 2003. Thus, the bank guarantee which is furnished by the petitioner cannot be in such a way appropriated and/or forfeited in favour of complainant State, without following due procedure of law prescribed under the Act of 2003. 14. In view of the aforesaid discussion, in my considered opinion, Condition No.6 imposed by the learned Principal District and Sessions Judge (Designated Court), Rajkot while exercising its power under Section 439 of the Cr.P.C., is beyond its competence and thus, the said condition deserves to be deleted. I answer the question accordingly. 6. Finally, this Court has allowed the aforesaid Special Criminal Application, by observing as under : “15. Resultantly, this Special Criminal Application is hereby allowed in part. The order dated 2.2.2022 passed by the learned Principal District and Sessions Judge (Designated Court), Rajkot in Criminal Misc. Application No.2705 of 2021 is hereby modified to the extent that so far as condition No.4 is concerned, the petitioner shall furnish running bank guarantee of Rs.2,02,47,500/- within a period of two months from today and the Condition No.6 is hereby deleted. Rule is made absolute to the aforesaid extent. Direct service is permitted.” 7. In view of above, the present Special Criminal Application is hereby allowed in part. The order dated 22.4.2022 passed by the learned Principal District and Sessions Judge (Designated Court), Rajkot in Criminal Misc. Application No.503 of 2022 is hereby modified to the extent that so far as condition No.4 is concerned, the petitioner shall furnish running bank guarantee of Rs.33,06,695/- within a period of two months from today and the Condition No.6 is hereby deleted. Rule is made absolute to the aforesaid extent. Direct service is permitted.
A single judge, Justice Niral R. Mehta, at the Gujarat High Court, made an important ruling. He decided that when a court grants temporary release from jail, called bail, under Section 439 of the Cr.P.C., it cannot add rules that belong to a different law. The judge said such rules would be outside the court's official power. Here's what happened in the case: Police filed a report, an FIR, against a person. This person was accused of crimes like cheating and conspiracy, and breaking a law called the Gujarat Protection of Depositors Act of 2003. After arrest, the person asked the court for regular bail, which is temporary release from jail. The first court agreed to bail but added rules. Two rules were questioned: First, the person had to get a bank to promise Rs. 33,06,695 within two weeks of release. Second, if the police officer couldn't get the money back, this bank promise would go to the government or the person who complained. So, the main question for the High Court was simple. Can a court, when granting bail using its Section 439 powers, add rules from a different law? Specifically, can it use rules from the Gujarat Protection of Depositors Act of 2003? After looking closely at the Depositors Act, the court found it had its own system for handling related crimes. This system involved a "Competent Authority" (a specific official) taking action against financial companies. Following this, a special "Designated Court" (a court for these cases) would decide. This court could permanently take money or property, or it could change or cancel that decision. Because of this special system, the court stated that only the Designated Court has the final power. This power is to seize any money or property under the 2003 Depositors Act. The Designated Court has the only legal right to make decisions, such as those under Section 10(6) of the Act. It can make a seizure permanent, change it, or cancel it. Therefore, the High Court decided the trial court's bail conditions were completely outside its legal power. These conditions wrongly took powers that belonged to the Designated Court under Section 10(6) of the Depositors Act. The trial court did this without following the proper steps in that law. Because of all this, the High Court partly granted the person's request. It changed the trial court's order. Now, the person must provide the bank guarantee of Rs. 33,06,695 within two months, not two weeks. Also, the rule about the bank guarantee being given to the government if the investigating officer couldn't get the money back was removed completely.
2.2 In furtherance of the aforesaid FIR, the petitioner came to be arrested and thereby, an application being Criminal Misc. Application No.503 of 2022 came to be preferred under Section 439 of the Cr.P.C. for seeking, inter-alia, regular bail. The said application came up for hearing before the learned Principal District and Sessions Judge (Designated Court), Rajkot, who, vide its order dated 22.4.2022, allowed the same with certain conditions, mainly Condition Nos.4 and 6, which “(4) The applicant to produce bank guarantee of sand Six Hundred Ninety Five Only) in the name of Nazir, District Court, Rajkot, within two weeks of his release from custody. However, the payment / dis- bursement shall be subject to the provisions of G.P.I.D. Act and/or final decision of the trial. (6) In case the I.0. fails to recover the amount of sand Six Hundred Ninety Five Only) from the appli- cant, the bank guarantee shall stand forfeited in favour of the complainant -State.” 3. Being aggrieved by the aforesaid, the petitioner has approached this Court by way of present Special Criminal Application for the reliefs stated herein-above. 4. This Court had an occasion to deal with and decide somewhat similar issue in Special Criminal Application No.1692, decided on 9.6.2022, wherein in Para.9 following question was framed and decided : “9. So far as deletion of condition No.6 is concerned, short but interesting question of law arises for consideration of this Court is whether the Court while exercising powers under Section 439 of the Cr.P.C., can impose such condition which amounts to exercising powers envisaged under the another enactment i.e. Gujarat Protection of Interest of Depositors (In Financial Establishments) Act, 5. This Court has in detail considered the provision of law and observed as under : 10. So as to decide the aforesaid question, in my view, it would be apt to consider relevant provisions of the Act of 2003, which is as under : “4. Attachment of properties on default of return of deposit. (1) Notwithstanding anything contained in any other law for the time being in force, (i) Where upon complaint received from the depositor or otherwise, the State Government is satisfied that any Financial Establishment has failed, (a) to return the deposit on maturity on demand by the depositor; or (b) to pay interest or other assured (c) to provide the service promised against such deposit; or (ii) Where the State Government has reason to believe that any Financial Establishment is acting in a calculated manner detrimental to the interest of the depositors with an intention to defraud and if the State Government is satisfied that such Financial Establishment is not likely to return the deposits or make payment of interest or other benefits assured or to provide the services against which the deposit is received, the State Government may, in order to protect the interest of the depositors of such Financial Establishment, after recording the reasons in writing, issue an order by publishing it in the Official Gazette, for attaching the money, property or assets belonging to or believed to have been acquired by such Financial Establishment either in its own name or in the name of any other person from out of the deposits collected by the Financial Establishment, or if it transpires that such moneys, properties or assets, is not available for attachment or not sufficient for repayment of the deposits, such other property or assets of the said Financial Establishment or of the promoter, director, partner or member of the said establishment as the State Government may think fit. (2) On publication of the order under sub- sec. (1), all the moneys, properties and assets of the Financial Establishment and of the person mentioned therein shall forthwith vest in the Competent Authority pending further order from the Designated Court. (3) The Collector of a district shall be competent within his jurisdiction to receive the complaint under sub-sec. (1) and he shall forward such complaint alongwith his report to the State Government at the earliest and shall send a copy of the complaint to the concerned Superintendent of Police or Commissioner of Police, as the case may be, for investigation. 5. Appointment of Competent Authority :- (1) The State Government shall while issuing the order under sub-sec. (1) of Sec. 4, appoint an officer not below the rank of the Deputy Collector to be the Competent Authority to exercise control over the moneys, properties and assets attached by the State Government under Sec. 4. (2) The Competent Authority shall have such other powers and discharge such other functions as may be prescribed by rules for carrying out the purposes of this Act. (3) The Competent Authority shall apply, within thirty days from the date of the publication of the order made under Sec. 4 to the Designated Court, accompanied by one or more affidavits stating therein the grounds on which the State Government has issued the said order and the amount of moneys or other properties or assets belonging to or believed to have been acquired out of the deposits and the details, if any, or persons in whose name such property is believed to have been invested or acquired or any other property attached under Sec. 4, for such further orders as the Designated Court may find necessary. (4) The Competent Authority may, also make an application to any Special Court or Designated Court or any other judicial forum established or constituted or entrusted with the powers by any other State Government for adjudicating any issue or subject matter pertaining to moneys or properties or assets of the Financial Establishment under any similar enactment in respect of moneys or properties or assets belonging to or ostensibly belonging to the Financial Establishment or of any person notified under this Act situated within the territorial jurisdiction of that Special Court or Designated Court or any judicial forum, as the case may be, for passing appropriate orders to give effect to the provisions of this Act. 6. Duties and powers of Competent Authority:- (1) The Competent Authority, on receipt of order of his appointment, shall take such necessary actions as it is necessary or expedient for taking physical possession of all the moneys, properties and assets of the concerned Financial Establishment expeditiously and he shall have all the powers which are necessary for the aforesaid purpose. (2) Without prejudice to the generality of the powers vested under sub-sec. (1), the Competent Authority shall be entitled to - (a) require assistance of any police authority or any other authority or person and on such requisition, it shall be the duty of the police authority or such other authority or person to extend necessary assistance; (b) open bank accounts in any scheduled commercial bank and credit all moneys realised and operate the bank accounts while dealing; (c) to direct the person to furnish the necessary information relating to moneys, properties and assets of the Financial Establishment to hand over possession of such moneys, properties and assets to the Competent Authority and such person shall comply with the requisition without any loss of tune; (d) appoint legal practitioner or chartered accountant or any other person whose services are necessary for taking possession of assets and realisation of the assets of the Financial (e) sell, receive, transfer, endorse, negotiate or otherwise deal with any marketable security or negotiable instrument belonging to or in the control of the Financial Establishment and give proper discharge for the same; (f) sell, transfer or otherwise realise any movable or immovable property belonging to or in the control of the Financial Establishment either by public auction or with the prior approval of the Designated Court by private Provided that the perishable items of assets shall be sold by public auction at the earliest as the Competent Authority (g) make payment as per the orders passed by the Designated Court from out of the bank accounts; and (h) do all and every acts and deeds which would be necessary for the speedy realisation of the assets of the Financial Explanation. For the purpose of this section, the expression "Financial Establishment" includes the promoters, directors, partners, managers or members of the said establishment or any other person whose property or assets have been attached under Sec. 4. 7. Assessment of assets, deposits and liabilities:- (1) The Competent Authority shall, within thirty days from the date of his appointment, assess the assets, deposits and liabilities of the Financial Establishment and submit the statement thereof to the (2) The Competent Authority thereafter shall issue notice either individually or by means of effective media publication inviting the claims by secured creditors, if any, and also the depositors of the Financial Establishment to submit their claims with sufficient proof in support thereof. 3) Every notice under sub-sec. (2) shall specify that if the statement of claims is not sent to the Competent Authority before the expiry of the period of one month from the date of such notice, the claims shall not be treated as claim entitled to be paid under the provisions of this Act. (4) Every notice to a secured creditor shall require him to value the security before the expiry of the period of one month from the date of the notice and such notice shall also specify that if the statement of the claim together with the valuation of the security is not sent to the Competent Authority within such period, the Competent Authority himself shall value the security to the best of his judgment and his valuation shall be binding on such secured creditors. (5) The Competent Authority shall prepare a statement of dues of the Financial Establishment which is due from various debtors, the assessments of the value of the property and assets of the Financial Establishment and the list of the depositors and their respective dues; and submit the same to the Designated Court. 8. Report by Competent Authority:- The Competent Authority shall, after complying with the provisions of Sec. 7, make an application to the Designated Court seeking permission to make payment to the depositors from out of the money realised. While making such application, the Competent Authority shall assess the liability to the depositors and the other liabilities and in case the money realised or realisable is not sufficient to meet with the entire liability, make a submission to the Designated Court seeking permission for making payment to the depositors and disburse the money as per the orders of the 9. Designated Court :- (1) For the purposes of this Act, the State Government may, with the concurrence of the Chief Justice of the High Court of Gujarat, by notification, in the Official Gazette, constitute one or more Designated Court of the level of the Court of a District and Sessions Judge for such area or for such case or group of cases or such class as may be specified in the notification. (2) No Court, other than the Designated Court shall have jurisdiction to deal with or decide any question which the Designated Court is empowered to deal with or decide by or under this 4. (3) Any case or proceeding pending before any Court or any authority in relation to the moneys, properties or assets of the Financial Establishment covered by an order made under Sec. 4, shall stand transferred to the respective Designated Court and shall be dealt with and decided by such Court in accordance with the provisions of this Act. 10. Powers of Designated Court regarding attachment:- (1) Upon receipt of an application made under Sec. 5, the Designated Court shall issue to the Financial Establishment or to any other person whose moneys, properties or assets are attached by the State Government and vested in the Competent Authority under Sec. 4, a notice accompanied by the application and affidavits and copies of the evidence, if any, recorded, calling upon the said establishment or the said person to show cause on a date to be specified in the notice, why the order of attachment should not be made absolute. (2) The Designated Court shall also issue such notice, to all other persons represented to it, as having or being likely to claim any interest or title in the property of the Financial Establishment or of the person to whom the notice is issued under sub-sec. (1), calling upon all such persons to appear on the same date as that specified in the notice and to make objection if they so desire, to the attachment of the moneys, properties or assets or any portion thereof on the ground that they have interest in such property or portion thereof. (3) Any person claiming an interest in the moneys, properties or assets attached or any portion thereof may, notwithstanding that no notice has been served upon him under this section, make an objection as aforesaid to the Designated Court at any time before an order is passed under sub-sec. (4) or sub-sec. (6). (4) The Designated Court shall, if no objection is made or no cause is shown on or before the specified date under sub-sec. (2), forthwith pass an order making the order of attachment absolute, and issue such direction as may be necessary for realisation of the property, and assets and moneys attached and for equitable distribution among the depositors of the money so realised. (5) If cause shown or any objection is made as aforesaid, the Designated Court shall proceed to investigate the same and in so doing as regards the examination of the parties and in all other respects, the Designated Court shall, subject to the provisions of this 4, follow the summary procedure as contemplated under Order 37 of the Civil Procedure Code, 1908 (5 of 1908) and exercise all the powers of a court in hearing a suit under the said Code and any person making an objection shall be required to adduce evidence to show that at the date of the attachment he had some interest in the property so attached. (6) After investigation under sub-sec. (5), the Designated Court shall pass an order either making the order of attachment passed under sub-sec. (1) of Sec. 4 absolute or varying it by realizing a portion of the property or assets or moneys from attachment or canceling the order of attachment: Provided that the Designated Court shall not release from attachment any interest, which it is satisfied that the Financial Establishment or the person referred to in sub-sec. (1) has in the property or assets, unless it is also satisfied that there will remain under attachment an amount of property of value not less than the value that is required for re- payment to the depositors of such Financial (7) Where an application is made by any person duly authorised or constituted or specified by any other State Government under similar enactment empowering him to exercise control over any moneys or properties or assets attached by that State Government, the Designated Court shall exercise all its powers, as if, such an application were made under this Act and pass appropriate order or give direction on such application so as to give effect to the provisions of such enactment. 11. Power of Designated Court regarding realisation of assets and payment to depositors:- (1) The Designated Court shall have all the powers for giving effect to the provisions of this Act. (2) Without prejudice to the generality of sub- sec. (1), the Designated Court may- (a) give any direction to the Competent Authority as it deems fit, for effective implementation of the provisions of this (b) approve the statement of dues of the Financial Establishment which is due from various debtors, the assessment of the value of the assets of the Financial Establishment and finalise the list of the depositors and their respective dues; (c) direct the Competent Authority to take possession of any property or assets belonging to or in the control of the Financial Establishment and to sell, transfer or realise the attached property or assets either by public auction or by private sale as it deems fit depending upon the nature of property or assets and credit the sale proceeds thereof to the bank accounts; (d) approve the necessary expenditure incurred by the Competent Authority for taking possession and realisation of the properties and assets of the (e) pass an order to make payment to the depositors by the Competent Authority or for proportionate payment to the depositors in the case where the moneys so realised is not sufficient to meet with the entire deposit liability; (f) pass any order appropriate for realisation of the property or assets of the Financial Establishment and repayment to the depositors of such Financial Establishment or on any matter incidental thereto. Explanation. For the purpose of this section, the expression "Financial Establishment" includes the promoter, director, partner, manager or member of the said Establishment or any other person whose properties or assets have been attached under Sec. 4.” 11. Having considered the aforesaid provisions in detail, it appears that the Gujarat Protection of Interest of Depositors (In Financial Establishments) Act, 2003 itself has inbuilt mechanism with regard to offences related to said Act of 2003. It further appears that it is the State Government, who, upon receipt of a complaint, appoints an officer not below the rank of Deputy Collector as the Competent Authority to exercise control over the moneys, properties and assets attached by the State Government under Section 4. It is the competent authority, upon being appointed, takes necessary action of taking physical possession of all the moneys, properties and assets of the concerned financial establishment. The competent authority, after preparing report of the asset, deposit and liability of the financial establishment, submit the same before the Designated Court and thereafter, shall make an application seeking permission of the Designated Court to make payment to the depositors from the money realized and thereafter, the Designated Court, after due investigation, either make an order of attachment absolute or portion of such assets or money realizing from the attachment or cancelled the order of attachment. 12. In view of the aforesaid mechanism, it is clear that ultimate power of any attachment made under the Act of 2003 vests with the Designated Court. The mechanism of the Act of 2003 right from the passing of order under Section 4(1) and thereafter, appointment of competent authority under Section 5 and thereafter, the powers conferred to the Designated Court under Section 10(6) are the special powers and the same have to be in consonance with the provisions of the Act of 2003. The Designated Court has exclusive jurisdiction with regard to passing of any orders under Section 10(6) of the Act of 2003. The Designated Court may make attachment order as absolute or modify or cancel. 13. Keeping in mind the aforesaid legal provisions, more particularly if the Condition No.6 imposed by the learned Sessions Judge, is read over, the same is completely beyond jurisdiction of the learned Sessions Court while exercising powers under Section 439 of the Cr.P.C. I say so because the same is amounting to usurping powers envisaged under Section 10(6) of the Act of 2003, that too without following any procedure as prescribed. Thus, the impugned condition imposed by the Sessions Court while exercising powers under Section 439 of the Cr.P.C., in my considered opinion, is beyond its competence and is also contrary to the provision of the Act of 2003. The Sessions Court while exercising discretionary powers under Section 439 of Cr.P.C. and while imposing condition, could not have overlooked the provision of the Act of 2003 and could not have passed an order imposing condition akin to provision of Section 10(6) of the Act of 2003. Thus, the bank guarantee which is furnished by the petitioner cannot be in such a way appropriated and/or forfeited in favour of complainant State, without following due procedure of law prescribed under the Act of 2003. 14. In view of the aforesaid discussion, in my considered opinion, Condition No.6 imposed by the learned Principal District and Sessions Judge (Designated Court), Rajkot while exercising its power under Section 439 of the Cr.P.C., is beyond its competence and thus, the said condition deserves to be deleted. I answer the question accordingly. 6. Finally, this Court has allowed the aforesaid Special Criminal Application, by observing as under : “15. Resultantly, this Special Criminal Application is hereby allowed in part. The order dated 2.2.2022 passed by the learned Principal District and Sessions Judge (Designated Court), Rajkot in Criminal Misc. Application No.2705 of 2021 is hereby modified to the extent that so far as condition No.4 is concerned, the petitioner shall furnish running bank guarantee of Rs.2,02,47,500/- within a period of two months from today and the Condition No.6 is hereby deleted. Rule is made absolute to the aforesaid extent. Direct service is permitted.” 7. In view of above, the present Special Criminal Application is hereby allowed in part. The order dated 22.4.2022 passed by the learned Principal District and Sessions Judge (Designated Court), Rajkot in Criminal Misc. Application No.503 of 2022 is hereby modified to the extent that so far as condition No.4 is concerned, the petitioner shall furnish running bank guarantee of Rs.33,06,695/- within a period of two months from today and the Condition No.6 is hereby deleted. Rule is made absolute to the aforesaid extent. Direct service is permitted.
A single judge, Justice Niral R. Mehta, at the Gujarat High Court, made an important ruling. He decided that when a court grants temporary release from jail, called bail, under Section 439 of the Cr.P.C., it cannot add rules that belong to a different law. The judge said such rules would be outside the court's official power. Here's what happened in the case: Police filed a report, an FIR, against a person. This person was accused of crimes like cheating and conspiracy, and breaking a law called the Gujarat Protection of Depositors Act of 2003. After arrest, the person asked the court for regular bail, which is temporary release from jail. The first court agreed to bail but added rules. Two rules were questioned: First, the person had to get a bank to promise Rs. 33,06,695 within two weeks of release. Second, if the police officer couldn't get the money back, this bank promise would go to the government or the person who complained. So, the main question for the High Court was simple. Can a court, when granting bail using its Section 439 powers, add rules from a different law? Specifically, can it use rules from the Gujarat Protection of Depositors Act of 2003? After looking closely at the Depositors Act, the court found it had its own system for handling related crimes. This system involved a "Competent Authority" (a specific official) taking action against financial companies. Following this, a special "Designated Court" (a court for these cases) would decide. This court could permanently take money or property, or it could change or cancel that decision. Because of this special system, the court stated that only the Designated Court has the final power. This power is to seize any money or property under the 2003 Depositors Act. The Designated Court has the only legal right to make decisions, such as those under Section 10(6) of the Act. It can make a seizure permanent, change it, or cancel it. Therefore, the High Court decided the trial court's bail conditions were completely outside its legal power. These conditions wrongly took powers that belonged to the Designated Court under Section 10(6) of the Depositors Act. The trial court did this without following the proper steps in that law. Because of all this, the High Court partly granted the person's request. It changed the trial court's order. Now, the person must provide the bank guarantee of Rs. 33,06,695 within two months, not two weeks. Also, the rule about the bank guarantee being given to the government if the investigating officer couldn't get the money back was removed completely.
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This judgment has been divided into sections to facilitate analysis. They are: D Whether a Preliminary Inquiry is mandatory before registering an FIR E.2 Whether the FIR is liable to be quashed in the present case 1 The appeal arises from a judgment dated 11 February 2020 of a Single Judge of the High Court for the State of Telangana, by which: (i) a writ petition 1 filed by the respondents under Article 226 of the Constitution of India was allowed; and (ii) the First Information Report 2 dated 20 September 2017 registered against the respondents was set aside, together with proceedings taken up pursuant to the FIR. 2 The first respondent is a Commissioner of Income Tax while the second respondent is her spouse. The second respondent is a Member of the Legislative Assembly 3 and is a Minister in the State government of Andhra Pradesh. The FIR4 dated 20 September 2017 has been registered against the first respondent for being in possession (allegedly) of assets disproportionate to her known sources of income. The second respondent is alleged to have abetted the offence. The FIR has thus been registered for offences punishable under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act 1988 5 and Section 109 of the Indian Penal Code 1860 6. The allegation is of possession of Disproportionate Assets to the tune of Rs 1,10,81,692, which was 22.86 per cent of the income earned during the check period between 1 April 2010 to 29 February 2016. 3 While quashing the FIR, the High Court held that: (i) the information about the respondents’ income can be ascertained from their ‘known sources of income’ under Section 13(1)(e) of the PC Act, such as their Income Tax Returns, information submitted to their department under the Central Civil Services (Conduct) Rules 1964 7 and affidavit filed under the Representation of the People Act 1951 8 and the Rules under it; (ii) to counter the veracity of the information from these sources, the appellant, Central Bureau of Investigation 9, should have conducted a Preliminary Enquiry under the Central Bureau of Investigation (Crime) Manual 200510 before registration of the FIR; and (iii) on the basis of the information ascertained from these ‘known sources of income’, the allegations against the respondents in the FIR prima facie seem unsustainable. This view of the High Court has been called into question in these proceedings. 4 Since 1992, the first respondent is a Civil Servant of the Indian Revenue Services 11, and was working as Commissioner of Income Tax (Audit -II), Tamil Nadu & Pondicherry when the FIR was registered against her. She is presently working as Commissioner of Income Tax (Audit) at Hyderabad. The second respondent is the spouse of the first respondent, and was also a Civil Servant working in the Indian Railway Accounts Services till 2009. At the time of the registration of the FIR, he was and continues to be, at present, an MLA of the State of Andhra Pradesh and holds the post of the Minister of Education for the State of Andhra Pradesh. He was also a Member of the Committees on Assurances, SC&ST Welfare and Public 5 The FIR was registered against the respondents by CBI’s Anti-Corruption Branch 12 in Chennai on 20 September 2017. The FIR noted that the “check period” was between 1 April 2010 and 29 February 2016. The FIR records that it was registered on the basis of “source information” received by the CBI ACB Chennai on the same date, at about 4 pm. There are four tabulated statements in the FIR. Statement A provides that the respondents’ assets at the beginning of the check period (1 April 2010) were in the amount of Rs 1,35,26,066 while Statement-B indicates that their assets at the end of the check period (29 February 2016) were Rs 6,90,51,066. Hence, their assets earned during the check period (i.e., between 1 April 2010 to 29 February 2016) were alleged to be to the tune of Rs 5,55,25,000. According to Statement-C, the respondents’ income during the check period was Rs 4,84,76,630 while according to Statement-D their expenditure during the check period was Rs 40,33,322. Hence, the respondents are alleged to have acquired assets/pecuniary advantage to the extent of Rs 5,95,58,322 (adding the Assets, Rs 5,55,25,000 and Expenditure, Rs 40,33,322) against an Income of Rs 4,84,76,630 earned during the check period. Therefore, their Disproportionate Assets 13 during the check period were computed at Rs 1,10,81,692, which is 22.86 per cent of the total income earned by them. The computation reflected in the FIR is as follows: Calculated by adding the Assets and Expenditure during the check period, and subtracting the Income from it. “Calculation of Disproportionate Assets:- A. Assets at the beginning of the check 13,526,066 B. Assets at the end of the check period 69,051,066 C. Assets during the check period (B-A) 55,525,000 D. Income during the check period 48,476,630 E. Expenditure during the check period 4,033,322 On the basis of the FIR dated 20 September 2017, the CBI ACB Chennai registered a case 14 against the respondents for offences punishable under Sections 13(2) read with 13(1)(e) of the PC Act and Section 109 of the IPC. 6 On 5 March 2018, the respondents filed a writ petition before the Telangana High Court under Article 226 of the Constitution seeking quashing of the FIR. In their writ petition, the respondents averred that: (i) the FIR is politically motivated since the second respondent belongs to a rival political party; (ii) the appellant did not conduct a Preliminary Enquiry before registering the FIR; and (iii) the particulars in the FIR did not constitute an offence and would not, as they stand, result in the respondents’ conviction. Further, the petition pointed out inconsistencies in the FIR where certain assets had been allegedly over-valued while income had been under- valued, without any explanation. Hence, the petition before the High Court urged that the FIR was liable to be quashed. To support their contentions, the respondents annexed their Income Tax Returns, immovable property declarations for the period between 2010 to 2017 made by the first respondent under the CCS Rules, affidavit filed by the second respondent under the RP Act and Rules thereunder in 2014 and letters under the CCS Rules explaining the cost/value of construction of their house. 7 In response, the appellant filed a counter-affidavit before the Telangana High Court where it was stated, inter alia, that: (i) the writ petition was filed belatedly, two years after the registration of the FIR; (ii) in any case, the writ petition should have been filed before the Madras High Court since the Court of the Principal Special Judge for CBI Cases, (VIIIth Additional City Civil Court), Chennai had jurisdiction over the case and the respondents were aware of this, and the FIR had also been registered by the CBI ACB at Chennai; (iii) the FIR had been registered on the basis of source information, and the case was still under investigation; (iv) the respondents would be provided a chance to explain their case during the investigation, and there was no requirement to conduct Preliminary Enquiry before the registration of the FIR; and (v) the respondents’ income and assets cannot be conclusively ascertained from the documents annexed by them, since their veracity has to be determined during the investigation. Hence, the appellants urged that the FIR could not be quashed. 8 As noted earlier in this judgment, the Telangana High Court allowed the respondents’ writ petition by its impugned judgement dated 11 February 2020 and quashed the FIR, and set aside all proceedings initiated pursuant to it. The appellant CBI has now moved this Court for challenging the decision of the High Court. 9 Assailing the judgment of the Telangana High Court, Ms Aishwarya Bhati, Additional Solicitor General 15 appearing on behalf of the CBI has urged the following (i) The Telangana High Court did not have the jurisdiction to entertain the writ petition filed by the respondents since: a. The FIR had been registered by the CBI ACB at Chennai; and b. It had been submitted to the Principal Special Judge for CBI Cases, (VIIIth Additional City Civil Court), Chennai. Hence, only the Madras High Court had jurisdiction to entertain the writ petition; (ii) The CBI Manual does not make it mandatory to conduct a Preliminary Enquiry before the registration of the FIR and its provisions are directory; (iii) A Preliminary Enquiry is only conducted when the information received is not sufficient to register a Regular Case. However, when the information available is adequate to register a Regular Case since it discloses the commission of a cognizable offence, no Preliminary Enquiry is necessary. This will depend on the facts and circumstances of each case, and the Preliminary Enquiry cannot be made mandatory for all cases of alleged corruption. This proposition finds support in the judgments of this Court in Lalita Kumari v. Govt. of UP and others 16 (“Lalita Kumari”) and The State of Telangana v. Managipet 17 (“Managipet”); (iv) The FIR was registered on the basis of reliable source information collected during the investigation of another case18 in which the first respondent was one of the accused. During the investigation of that case, CBI conducted searches at four places belonging to the first respondent during which documents were seized and she was also examined. On the basis of such information and documents, the FIR was registered in the present case. Hence, there was no need for a Preliminary Enquiry; (v) There is also no need to conduct a Preliminary Enquiry since the respondents will be provided with an opportunity to explain each and every acquisition of their assets, and their income and expenditure during the check period, during the investigation. Hence, it was not necessary to provide this opportunity before the registration of an FIR (through a Preliminary Enquiry) since there would have been a risk of tampering with or destruction of evidence by the accused persons; (vi) The Investigating Officer has no duty to call for any explanation from the accused in relation to their assets before registering an FIR against them since doing so would further lengthen the proceeding. In any case, such an opportunity is available to the accused persons at the stage of trial. This principle emerges from the judgments of this Court in K. Veeraswami (2014) 2 SCC 1, paras 31-35, 37-39, 83-86, 89-92, 93-96, 101-105, 106-107, 111-112, 114-119 and 120 v. Union of India19 (“K. Veeraswami”), Union of India and another v. W.N. Chadha 20, State of Maharashtra v. lshwar Piraji Kalpatri 21, Narendar G. Goel v. State of Maharashtra 22 and Samaj Parivarthan (vii) The FIR has been registered against the second respondent under Section 109 of the IPC as an abettor, being in a fiduciary relationship with the first respondent as her spouse. As such, no consent of the Speaker was required before the registration of the FIR against the second respondent. A general consent has been accorded to the CBI by the State of Tamil Nadu 24 under Section 6 of the Delhi Special Police Establishment Act 1946 25 for the offences under the PC Act, which have been notified under Section 3 of the DSPE Act. The first respondent is an officer of the (viii) While hearing a petition seeking the quashing of an FIR, the High Court has to consider the contents of the FIR and whether the allegations made in it prima facie constitute an offence. This is a settled principle, reiterated recently by this court in Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra and others 26 (“Neeharika Infrastructure”). In the present case, the High Court has gone beyond the scope of its powers and 2021 SCC OnLine SC 315, paras 36-37, 46, 50-51, 57 and 80 (xii-xviii) conducted a mini-trial while considering the evidence put forward by the (ix) The High Court has erred in relying upon the Income Tax Returns and other documents filed by the respondents while quashing the FIR, since their veracity as “lawful sources of income” will have to be determined during the investigation, which has been ongoing for more than two years. The decision of this Court in State of Karnataka v. J. Jayalalitha 27 (“J. Jayalalitha”) reiterates this principle; (x) The High Court has solely relied on the documents filed by the respondents while calculating their income, expenditure and value of assets to hold that they did not possess any Disproportionate Assets. However, no explanation has been provided about why the calculations done by the CBI resulting in the filing of the FIR and during its subsequent investigation should be overlooked in favor of the respondents’ (xi) Pursuant to the stay granted by this Court of the impugned judgment of the High Court, while issuing notice in the present proceedings, the investigation has resumed and is nearly complete. Nearly 140 witnesses have been examined, and 7500 documents have been obtained, and it has been stated that the investigation would be completed within a period of two to three months. 10 Mr Siddharth Luthra and Mr Siddharth Dave, Senior Counsel appearing on behalf of the respondents opposed the submissions and urged that: (i) The Telangana High Court had jurisdiction to entertain the writ petition a. No assets of the respondents are located in the State of Tamil Nadu, while many of the properties are located in the State of Andhra Pradesh. The jurisdiction of the High Court under Article 226 of the Constitution should be exercised liberally while quashing an FIR in order to prevent the abuse of process of law. This finds support in the judgments of this Court in Shanti Devi Alia Shanti Mishra v. Union of India28, Navinchandra N. Majithia v. State of Maharashtra 29, Pepsi Foods Ltd. v. Special Judicial Magistrate 30 and Kapil Agarwal v. b. In any case, CBI admitted to the jurisdiction of the Telangana High Court when it did not challenge its initial order dated 24 September 2019 admitting the respondents’ writ petition; (ii) In view of the decision of this court in Vineet Narain v. Union of India 32 (“Vineet Narain”), the provisions of the CBI Manual must be followed strictly by the CBI. This has been reiterated in Shashikant v. CBI 33 (“Shashikant”), CBI v. Ashok Kumar Aggarwal 34 (“Ashok Kumar Aggarwal”) and State of Jharkhand v. Lalu Prasad Yadav35; (iii) According to para 9.1 of the CBI Manual, a Preliminary Enquiry must be conducted before an FIR is registered in order to collect sufficient material which prima facie establishes the commission of an offence. This is emphasized in the judgments of this Court in Shashikant (supra) and Nirmal Singh Kahlon v. State of Punjab 36 (“Nirmal Singh Kahlon”); (iv) A Preliminary Enquiry before the registration of an FIR is a necessary requirement in cases of alleged corruption involving public servants, including those of Disproportionate Assets, since undue haste would lead to registration of frivolous and untenable complaints which could affect the careers of these officials. The judgments of this Court in Yashwant Sinha v. CBI 37 (“Yashwant Sinha”), Charansingh v. State of Maharashtra 38 (“Charansingh”), P. Sirajuddin v. State of Madras 39 (“P. Sirajuddin”), Nirmal Singh Kahlon (supra) 40 and Lalita Kumari (supra) 41 support this (v) The FIR states that it was filed on the basis of source information received by the CBI ACB Chennai at 4 pm on 20 September 2017, following which the FIR was registered and sent to the Court of the Principal Special Judge for CBI Cases, (VIIIth Additional City Civil Court), Chennai at 5 pm and was received there by 6.25 pm. Hence, it is evident that no verification or Preliminary Enquiry was conducted before registering the FIR; (vi) The failure of CBI to conduct a Preliminary Enquiry has adversely affected the right of defence of the respondents since their right to explain their income/expenditure/assets has been taken away and an FIR has been (vii) In accordance with the CBI Manual, only the Director of CBI and not any of its designated officers, has the power to register a case in terms of Annexure 6A to the CBI Manual or pass an order for a Preliminary Enquiry. Under para 14.39 of the CBI Manual, an investigation in a Disproportionate Assets case has to be completed within 18 months, while it has been ongoing for more than two years in the present case; (viii) In regard to the second respondent, CBI has no authority to investigate a a. While the second respondent may be a public servant under the PC Act, the consent for his prosecution can only be provided by the Speaker and not the Central Government. Support for this proposition arises from the judgments of this Court in P.V. Narasimha Rao v. State (CBI/SPE) 42 and State of Kerala v. K. Ajith and others 43; Criminal Appeal No 698 of 2021, paras 24, 33, 36-39 and 61-64 b. Even according to the decision of this Court in State of West Bengal v. Committee for Protection of Democratic Rights 44, the CBI can exercise powers and jurisdiction under the PC Act against an MLA or an MP only on a direction of this Court/High Court or on an order from c. The CBI has no authority since under the DSPE Act: i. No notification has been issued by the Central Government specifying the offences against an MLA to be investigated by the ii. No order has been passed by the Central Government extending the powers and jurisdiction of CBI in the State of Telangana in respect of the offences specified under Section 3 (Section 5 of the iii. Consent of the State Government has not been obtained for the exercise of powers by the CBI in the State of Telangana (Section 6 iv. In support of this, reliance is placed upon judgments of this Court in Mayawati v. Union of India 45, M. Balakrishna Reddy v. CBI 46, Central Bureau of Investigation v. State of Rajasthan 47 and Kazi (ix) The FIR also deserves to be quashed since: a. It does not differentiate in relation to the separate role of the two respondents and clubs the charges against them, which vitiates their independent right of defense. Further, the FIR has been filed against the second respondent in Chennai even though he has never held any public office there and no cause of action arises there; and b. The complaint is completely false since the respondents do not have any Disproportionate Assets in the check period but rather have an excess of income. To support this, the following chart has been filed along with the counter-affidavit of the first respondent: SL Description Amount as Actual Revised DA (in price in STM. C. (x) The High Court has not solely relied upon the documents produced by the respondents, while ignoring the material elicited by the CBI through its investigation. The documents produced by the respondent (Income Tax Returns, et al) are lawful sources to determine the source of one’s income, and can be relied upon while determining whether a ‘public servant’ under Section 13(1)(e) of the PC Act has accumulated Disproportionate Assets in comparison to their lawful income. Hence, the High Court could have legitimately assessed the case of Disproportionate Assets against the respondents by relying on such documents. In support of this proposition, reliance is placed upon judgments of this Court in Harshendra Kumar D. v. Rebatilata Koley 49, Suresh Kumar Goyal v. State of U.P. 50, Pooja Ravinder Devidasani v. State of Maharashtra 51, Kedari Lal v. State of M.P. 52 (“Kedari Lal”) and State of M.P. v. Mohanlal Soni 53; and (xi) The FIR deserved to be quashed in terms of the guidelines enunciated in paragraph 102 (1, 3, 5, 6 and 7) of this Court’s judgment in State of Haryana & others v. Bhajan Lal54 (“Bhajan Lal”). 11 The rival submissions now fall for our consideration. Based on the submissions, this Court is called upon to decide two questions: (i) whether the CBI is mandatorily required to conduct a Preliminary Enquiry before the registration of an FIR in every case involving claims of alleged corruption against public servants; and (ii) independent of the first question, whether the judgment of the High Court to quash the FIR can be sustained in the present case. (2014) 16 SCC 1, paras 15, 17, 23, 27-28 and 30 D Whether a Preliminary Inquiry is mandatory before registering an FIR 12 Before proceeding with our analysis of the issue, it is important to understand what previous judgements of this Court have stated on the issue of whether CBI is required to conduct a Preliminary Enquiry before the registration of an FIR, especially in cases of alleged corruption against public servants. 13 The first of these is a judgment of a two Judge Bench in P Sirajuddin (supra), in which it was observed that before a public servant is charged with acts of dishonesty amounting to serious misdemeanor, some suitable preliminary enquiry must be conducted in order to obviate incalculable harm to the reputation of that “17…Before a public servant, whatever be his status, is publicly charged with acts of dishonesty which amount to serious misdemeanour or misconduct of the type alleged in this case and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. The lodging of such a report against a person, specially one who like the appellant occupied the top position in a department, even if baseless, would do incalculable harm not only to the officer in particular but to the department he belonged to, in general...” 14 The above decision was followed by another two Judge Bench in Nirmal Singh Kahlon (supra), where it was observed that in accordance with the CBI Manual, the CBI may only be held to have established a prima facie case upon the completion of a Preliminary Enquiry. Justice S B Sinha held thus: “30. Lodging of a first information report by CBI is governed by a manual. It may hold a preliminary inquiry; it has been given the said power in Chapter VI of the CBI Manual. A prima facie case may be held to have been established only on completion of a preliminary enquiry.” 15 The most authoritative pronouncement of law emerges from the decision of a Constitution Bench in Lalita Kumari (supra). The issue before the Court was whether “a police officer is bound to register a first information report (FIR) upon receiving any information relating to commission of a cognizable offence under Section 154 of the Code of Criminal Procedure 1973…or the police officer has the power to conduct a ‘preliminary inquiry’ in order to test the veracity of such information before registering the same”. Answering this question on behalf of the Bench, Chief Justice P Sathasivam held that under Section 154 of the Code of Criminal Procedure 1973 55, a police officer need not conduct a preliminary enquiry and must register an FIR when the information received discloses the commission of a cognizable offence. Specifically with reference to the provisions of the CBI Manual, “89. Besides, the learned Senior Counsel relied on the special procedures prescribed under the CBI Manual to be read into Section 154. It is true that the concept of “preliminary inquiry” is contained in Chapter IX of the Crime Manual of CBI. However, this Crime Manual is not a statute and has not been enacted by the legislature. It is a set of administrative orders issued for internal guidance of the CBI officers. It cannot supersede the Code. Moreover, in the absence of any indication to the contrary in the Code itself, the provisions of the CBI Crime Manual cannot be relied upon to import the concept of holding of preliminary inquiry in the scheme of the Code of Criminal Procedure. At this juncture, it is also pertinent to submit that CBI is constituted under a special Act namely, the Delhi Special Police Establishment Act, 1946 and it derives its power to investigate from this Act.” However, the Court was also cognizant of the possible misuse of the powers under criminal law resulting in the registration of frivolous FIRs. Hence, it formulated “exceptions” to the general rule that an FIR must be registered immediately upon the receipt of information disclosing the commission of a cognizable offence. The “115. Although, we, in unequivocal terms, hold that Section 154 of the Code postulates the mandatory registration of FIRs on receipt of all cognizable offences, yet, there may be instances where preliminary inquiry may be required owing to the change in genesis and novelty of crimes with the passage 117. In the context of offences relating to corruption, this Court in P. Sirajuddin [P. Sirajuddin v. State of Madras, (1970) 1 SCC 595 : 1970 SCC (Cri) 240] expressed the need for a preliminary inquiry before proceeding against public servants. 119. Therefore, in view of various counterclaims regarding registration or non-registration, what is necessary is only that the information given to the police must disclose the commission of a cognizable offence. In such a situation, registration of an FIR is mandatory. However, if no cognizable offence is made out in the information given, then the FIR need not be registered immediately and perhaps the police can conduct a sort of preliminary verification or inquiry for the limited purpose of ascertaining as to whether a cognizable offence has been committed. But, if the information given clearly mentions the commission of a cognizable offence, there is no other option but to register an FIR forthwith. Other considerations are not relevant at the stage of registration of FIR, such as, whether the information is falsely given, whether the information is genuine, whether the information is credible, etc. These are the issues that have to be verified during the investigation of the FIR. At the stage of registration of FIR, what is to be seen is merely whether the information given ex facie discloses the commission of a cognizable offence. If, after investigation, the information given is found to be false, there is always an option to prosecute the complainant for filing a false FIR.” The judgment provides the following conclusions: “120. In view of the aforesaid discussion, we hold: 120.1. The registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. 120.2. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. 120.5. The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. 120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under: The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.” The Constitution Bench thus held that a Preliminary Enquiry is not mandatory when the information received discloses the commission of a cognizable offence. Even when it is conducted, the scope of a Preliminary Enquiry is not to ascertain the veracity of the information, but only whether it reveals the commission of a cognizable offence. The need for a Preliminary Enquiry will depend on the facts and circumstances of each case. As an illustration, “corruption cases” fall in that category of cases where a Preliminary Enquiry “may be made”. The use of the expression “may be made” goes to emphasize that holding a preliminary enquiry is not mandatory. Dwelling on the CBI Manual, the Constitution Bench held that: (i) it is not a statute enacted by the legislature; and (ii) it is a compendium of administrative orders for the internal guidance of the CBI. 16 The judgment in Lalita Kumari (supra) was analyzed by a three Judge Bench of this Court in Yashwant Sinha (supra) where the Court refused to grant the relief of registration of an FIR based on information submitted by the appellant-informant. In his concurring opinion, Justice K M Joseph described that a barrier to granting the relief of registration of an FIR against a public figure would be the observations of this Court in Lalita Kumari (supra) noting that a Preliminary Enquiry may be desirable before doing so. Justice Joseph observed: “108. Para 120.6 [of Lalita Kumari] deals with the type of cases in which preliminary inquiry may be made. Corruption cases are one of the categories of cases where a preliminary 110. In para 117 of Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] , this Court referred to the decision in P. Sirajuddin v. State of Madras [P. Sirajuddin v. State of Madras, (1970) 1 SCC 595 : 1970 SCC (Cri) 240] and took the view that in the context of offences related to corruption in the said decision, the Court has expressed a need for a preliminary inquiry before proceeding against public servants. 112. In Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] , one of the contentions which was pressed before the Court was that in certain situations, preliminary inquiry is necessary. In this regard, attention of the Court was drawn to CBI Crime Manual… 114. The Constitution Bench in Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] , had before it, the CBI Crime Manual. It also considered the decision of this Court in P. Sirajuddin [P. Sirajuddin v. State of Madras, (1970) 1 SCC 595 : 1970 SCC (Cri) 240] which declared the necessity for preliminary inquiry in offences relating to corruption. Therefore, the petitioners may not be justified in approaching this Court seeking the relief of registration of an FIR and investigation on the same as such. This is for the reason that one of the exceptions where immediate registration of FIR may not be resorted to, would be a case pointing fingers at a public figure and raising the allegation of corruption. This Court also has permitted preliminary inquiry when there is delay, laches in initiating criminal prosecution, for example, over three months. A preliminary inquiry, it is to be noticed in para 120.7, is to be completed within seven days.” 17 The decision of a two Judge Bench in Managipet (supra) thereafter has noted that while the decision in Lalita Kumari (supra) held that a Preliminary Enquiry was desirable in cases of alleged corruption, that does not vest a right in the accused to demand a Preliminary Enquiry. Whether a Preliminary Enquiry is required or not will depends on the facts and circumstances of each case, and it cannot be said to be mandatory requirement without which a case cannot be registered against the accused in corruption cases. Justice Hemant Gupta held thus: “28. In Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] , the Court has laid down the cases in which a preliminary inquiry is warranted, more so, to avoid an abuse of the process of law rather than vesting any right in favour of an accused. Herein, the argument made was that if a police officer is doubtful about the veracity of an accusation, he has to conduct a preliminary inquiry and that in certain appropriate cases, it would be proper for such officer, on the receipt of a complaint of a cognizable offence, to satisfy himself that prima facie, the allegations levelled against the accused in 29. The Court concluded that the registration of an FIR is mandatory under Section 154 of the Code if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation… 30. It must be pointed out that this Court has not held that a preliminary inquiry is a must in all cases. A preliminary enquiry may be conducted pertaining to matrimonial disputes/family disputes, commercial offences, medical negligence cases, corruption cases, etc. The judgment of this Court in Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] does not state that proceedings cannot be initiated against an accused without conducting a preliminary 32…The scope and ambit of a preliminary inquiry being necessary before lodging an FIR would depend upon the facts of each case. There is no set format or manner in which a preliminary inquiry is to be conducted. The objective of the same is only to ensure that a criminal investigation process is not initiated on a frivolous and untenable complaint. That is the test laid down in Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : 33. In the present case, the FIR itself shows that the information collected is in respect of disproportionate assets of the accused officer. The purpose of a preliminary inquiry is to screen wholly frivolous and motivated complaints, in furtherance of acting fairly and objectively. Herein, relevant information was available with the informant in respect of prima facie allegations disclosing a cognizable offence. Therefore, once the officer recording the FIR is satisfied with such disclosure, he can proceed against the accused even without conducting any inquiry or by any other manner on the basis of the credible information received by him. It cannot be said that the FIR is liable to be quashed for the reason that the preliminary inquiry was not conducted. The same can only be done if upon a reading of the entirety of an FIR, no offence is disclosed. Reference in this regard, is made to a judgment of this Court in State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] wherein, this Court held inter alia that where the allegations made in the FIR or the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused and also where a criminal proceeding is manifestly attended with mala fides and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 34. Therefore, we hold that the preliminary inquiry warranted in Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] is not required to be mandatorily conducted in all corruption cases. It has been reiterated by this Court in multiple instances that the type of preliminary inquiry to be conducted will depend on the facts and circumstances of each case. There are no fixed parameters on which such inquiry can be said to be conducted. Therefore, any formal and informal collection of information disclosing a cognizable offence to the satisfaction of the person recording the FIR is sufficient.” 18 In Charansingh (supra), the two Judge bench was confronted with a challenge to a decision to hold a Preliminary Enquiry. The court adverted to the ACB Manual in Maharashtra and held that a statement provided by an individual in an “open inquiry” in the nature of a Preliminary Enquiry would not be confessional in nature and hence, the individual cannot refuse to appear in such an inquiry on that basis. Justice M R Shah, writing for the two Judge bench consisting also of one of “11. However, whether in a case of a complaint against a public servant regarding accumulating the assets disproportionate to his known sources of income, which can be said to be an offence under Section 13(1)(e) of the Prevention of Corruption Act, 1988, an enquiry at pre-FIR stage is permissible or not and/or it is desirable or not, if any decision is required, the same is governed by the decision of this Court in Lalita Kumari [Lalita Kumari v. State of U.P., 11.1. While considering the larger question, whether police is duty-bound to register an FIR and/or it is mandatory for registration of FIR on receipt of information disclosing a cognizable offence and whether it is mandatory or the police officer has option, discretion or latitude of conducting preliminary enquiry before registering FIR, this Court in Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] has observed that it is mandatory to register an FIR on receipt of information disclosing a cognizable offence and it is the general rule. However, while holding so, this Court has also considered the situations/cases in which preliminary enquiry is permissible/desirable. While holding that the registration of FIR is mandatory under Section 154, if the information discloses commission of a cognizable offence and no preliminary enquiry is permissible in such a situation and the same is the general rule and must be strictly complied with, this Court has carved out certain situations/cases in which the preliminary enquiry is held to be permissible/desirable before registering/lodging of an FIR. It is further observed that if the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary enquiry may be conducted to ascertain whether cognizable offence is disclosed or not. It is observed that as to what type and in which cases the preliminary enquiry is to be conducted will depend upon the facts and circumstances of each case. 14. In the context of offences relating to corruption, in para 117 in Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] , this Court also took note of the decision of this Court in P. Sirajuddin v. State of Madras [P. Sirajuddin v. State of Madras, (1970) 1 SCC 595 : 1970 SCC (Cri) 240] in which case this Court expressed the need for a preliminary enquiry before proceeding against public 15.1. Thus, an enquiry at pre-FIR stage is held to be permissible and not only permissible but desirable, more particularly in cases where the allegations are of misconduct of corrupt practice acquiring the assets/properties disproportionate to his known sources of income. After the enquiry/enquiry at pre-registration of FIR stage/preliminary enquiry, if, on the basis of the material collected during such enquiry, it is found that the complaint is vexatious and/or there is no substance at all in the complaint, the FIR shall not be lodged. However, if the material discloses prima facie a commission of the offence alleged, the FIR will be lodged and the criminal proceedings will be put in motion and the further investigation will be carried out in terms of the Code of Criminal Procedure. Therefore, such a preliminary enquiry would be permissible only to ascertain whether cognizable offence is disclosed or not and only thereafter FIR would be registered. Therefore, such a preliminary enquiry would be in the interest of the alleged accused also against whom the complaint is made. 15.2. Even as held by this Court in CBI v. Tapan Kumar Singh [CBI v. Tapan Kumar Singh, (2003) 6 SCC 175 : 2003 SCC (Cri) 1305] , a GD entry recording the information by the informant disclosing the commission of a cognizable offence can be treated as FIR in a given case and the police has the power and jurisdiction to investigate the same. However, in an appropriate case, such as allegations of misconduct of corrupt practice by a public servant, before lodging the first information report and further conducting the investigation, if the preliminary enquiry is conducted to ascertain whether a cognizable offence is disclosed or not, no fault can be found. Even at the stage of registering the FIR, what is required to be considered is whether the information given discloses the commission of a cognizable offence and the information so lodged must provide a basis for the police officer to suspect the commission of a cognizable offence. At this stage, it is enough if the police officer on the basis of the information given suspects the commission of a cognizable offence, and not that he must be convinced or satisfied that a cognizable offence has been committed. Despite the proposition of law laid down by this Court in a catena of decisions that at the stage of lodging the first information report, the police officer need not be satisfied or convinced that a cognizable offence has been committed, considering the observations made by this Court in P. Sirajuddin [P. Sirajuddin v. State of Madras, (1970) 1 SCC 595 : 1970 SCC (Cri) 240] and considering the observations by this Court in Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] before lodging the FIR, an enquiry is held and/or conducted after following the procedure as per Maharashtra State Anti- Corruption & Prohibition Intelligence Bureau Manual, it cannot be said that the same is illegal and/or the police officer, Anti-Corruption Bureau has no jurisdiction and/or authority and/or power at all to conduct such an enquiry at pre-registration of FIR stage.” 19 Hence, all these decisions do not mandate that a Preliminary Enquiry must be conducted before the registration of an FIR in corruption cases. An FIR will not stand vitiated because a Preliminary Enquiry has not been conducted. The decision in Managipet (supra) dealt specifically with a case of Disproportionate Assets. In that context, the judgment holds that where relevant information regarding prima facie allegations disclosing a cognizable offence is available, the officer recording the FIR can proceed against the accused on the basis of the information without conducting 20 This conclusion is also supported by the judgment of another Constitution Bench in K. Veeraswami (supra). The judgment was in context of Section 5(1)(e) of the old Prevention of Corruption Act 1947, which is similar to Section 13(1)(e) of the PC Act. It was argued that: (i) a public servant must be afforded an opportunity to explain the alleged Disproportionate Assets before an Investigating Officer; (ii) this must then be included and explained by the Investigating Officer while filing the charge sheet; and (iii) the failure to do so would render the charge sheet invalid. Rejecting this submission, the Constitution Bench held that doing so would elevate the Investigating Officer to the role of an enquiry officer or a Judge and that their role was limited only to collect material in order to ascertain whether the alleged offence has been committed by the public servant. In his opinion for himself and Justice Venkatachaliah, Justice K Jagannatha Shetty held thus: “75…since the legality of the charge-sheet has been impeached, we will deal with that contention also. Counsel laid great emphasis on the expression “for which he cannot satisfactorily account” used in clause (e) of Section 5(1) of the Act. He argued that that term means that the public servant is entitled to an opportunity before the Investigating Officer to explain the alleged disproportionality between assets and the known sources of income. The Investigating Officer is required to consider his explanation and the charge-sheet filed by him must contain such averment. The failure to mention that requirement would vitiate the charge-sheet and renders it invalid. This submission, if we may say so, completely overlooks the powers of the Investigating Officer. The Investigating Officer is only required to collect material to find out whether the offence alleged appears to have been committed. In the course of the investigation, he may examine the accused. He may seek his clarification and if necessary he may cross check with him about his known sources of income and assets possessed by him. Indeed, fair investigation requires as rightly stated by Mr A.D. Giri, learned Solicitor General, that the accused should not be kept in darkness. He should be taken into confidence if he is willing to cooperate. But to state that after collection of all material the Investigating Officer must give an opportunity to the accused and call upon him to account for the excess of the assets over the known sources of income and then decide whether the accounting is satisfactory or not, would be elevating the Investigating Officer to the position of an enquiry officer or a judge. The Investigating Officer is not holding an enquiry against the conduct of the public servant or determining the disputed issues regarding the disproportionality between the assets and the income of the accused. He just collects material from all sides and prepares a report which he files in the court as charge-sheet.” Therefore, since an accused public servant does not have a right to be afforded a chance to explain the alleged Disproportionate Assets to the Investigating Officer before the filing of a charge sheet, a similar right cannot be granted to the accused before the filing of an FIR by making a Preliminary Enquiry mandatory. 21 Having revisited the precedents of this Court, it is now necessary to consider the provisions of the CBI Manual. 22 In the judgment in Vineet Narain (supra), a three Judge Bench of this Court noted that the provisions of the CBI Manual must be followed by the officers of the CBI strictly, and disciplinary action should be taken against those who deviate from “58. As a result of the aforesaid discussion, we hereby direct I. Central Bureau of Investigation (CBI) and Central Vigilance 12. The CBI Manual based on statutory provisions of the CrPC provides essential guidelines for the CBI's functioning. It is imperative that the CBI adheres scrupulously to the provisions in the Manual in relation to its investigative functions, like raids, seizure and arrests. Any deviation from the established procedure should be viewed seriously and severe disciplinary action taken against the officials concerned.” 23 In the later judgment of a two judge Bench in Shashikant (supra), it was held that the CBI cannot be faulted for conducting a Preliminary Enquiry in accordance with the CBI Manual. Justice S B Sinha held: “9...It is also not disputed that the CBI Manual was made by the Central Government providing for detailed procedure as regards the mode and manner in which complaints against public servants are to be dealt with. 11. The CBI Manual provides for a preliminary inquiry. By reason thereof a distinction has been made between a preliminary inquiry and a regular case. A preliminary inquiry in terms of para 9.1 of the CBI Manual may be converted into a regular case as soon as sufficient material becomes available to show that prima facie there has been commission of a cognizable offence. 19. When an anonymous complaint is received, no investigating officer would initiate investigative process immediately thereupon. It may for good reasons carry out a preliminary enquiry to find out the truth or otherwise of the allegations contained therein. 25…The procedure laid down in the CBI Manual and in particular when it was required to inquire into the allegation of the corruption on the part of some public servants, recourse to the provisions of the Manual cannot be said to be unfair…” 24 In Ashok Kumar Aggarwal (supra), a two judge Bench observed that the provisions of the CBI Manual require strict compliance. Justice B S Chauhan held: “24…the CBI Manual, being based on statutory provisions of CrPC, provides for guidelines which require strict compliance. More so, in view of the fact that the ratio of the judgment of this Court in M.M. Rajendran [State of T.N. v. M.M. Rajendran, (1998) 9 SCC 268 : 1998 SCC (Cri) 1000] has been incorporated in the CBI Manual, the CBI Manual itself is the best authority to determine the issue at hand. The court has to read the relevant provisions of the CBI Manual alone and no judgment of this Court can be a better guiding factor under such a scenario.” 25 Hence, it is necessary to scrutinize the provisions of the CBI Manual. Chapter 8 of the CBI Manual is titled “Complaints and Source Information”. Para 8.1 notes that the CBI must register every complaint it receives, whatever be its source, before it starts verifying it. Para 8.6(ii) provides that verification can be undertaken for “[c]omplaints containing specific and definite allegations involving corruption or serious misconduct against public servants etc., falling within the ambit of CBI, which can be verified”. Paras 8.8-8.9 describe the process of verification where the officers are to examine records informally and discreetly without making written requisitions, and that this process ordinarily should not take more than three months but can take up to four months for complicated cases. Para 8.24 indicates that the officer entrusted with verification must submit a detailed report at the end of the process with specific recommendations, including whether a Preliminary Enquiry is required or if a Regular Case should be registered directly. 26 The FIR in the present case has been registered on the basis of “Source Information”. Both during the course of the hearing and in the affidavit filed by CBI, it has been explained that CBI found information and documents while investigating another case. Para 8.26 of the CBI Manual notes that every officer of the CBI can develop source information “regarding graft, misuse of official position, possession of disproportionate assets, fraud, embezzlement, serious economic offences, illegal trading in narcotics and psychotropic substances, counterfeiting of currency, smuggling of antiques, acts endangering wildlife and environment, cybercrimes, serious frauds of banking/financial institutions, smuggling of arms and ammunition, forgery of passports, etc. and other matters falling within the purview of CBI and verify the same to ascertain whether any prima facie material is available to undertake an open probe”. However, while doing so, they are to keep their superior officer ‘well informed’. Further, para 8.27 describes the process once such “source information” is developed and submitted to the superior officer. It reads as follows: “8.27. The source information once developed must be submitted in writing giving all available details with specific acts of omissions and commissions and copies of documents collected discreetly. The internal vigilance enquiries or departmental enquiry reports should normally not be used as basis for submitting the source information. The SP concerned after satisfying himself that there is prima facie material meriting action by CBI and further verification is likely to result in registration of a regular case, would order verification if it falls within his competence. In the cases which are within the competence of higher officers, he will forward his detailed comments to the DIG and obtain orders from superior officer competent to order registration. The verification of SIRs must begin only after the competent authority has approved its registration. At this stage a regular SIR number will be assigned to the SIR which will also be entered in the source information sub-module of Crimes Module with all other details.” The superior officer thus has to verify whether the developed “source information” prima facie would result in the registration of a case by the CBI; if yes, they then have to direct the verification of such information. Verification is governed by para 8.29, which speaks of a process similar to para 8.9. Para 8.32 provides that verification of “source information” shall be completed within three months and approval of the Competent Authority is required to carry out verification beyond that period. Similar to para 8.24, under para 8.33, the officer entrusted with verification has to submit a report with specific recommendations on whether a Preliminary Enquiry is required or if a Regular Case should be registered directly. 27 If a Preliminary Enquiry is necessary, it is covered by Chapter 9 of the CBI “9.1 When, a complaint is received or information is available which may, after verification as enjoined in this Manual, indicate serious misconduct on the part of a public servant but is not adequate to justify registration of a regular case under the provisions of Section 154 Cr.P.C., a Preliminary Enquiry may be registered after obtaining approval of the Competent Authority…When the verification of a complaint and source information reveals commission of a prima facie cognizable offence, a Regular Case is to be registered as is enjoined by law. A PE may be converted into RC as soon as sufficient material becomes available to show that prima facie there has been commission of a cognizable offence. When information available is adequate to indicate commission of cognizable offence or its discreet verification leads to similar conclusion, a Regular Case must be registered instead of a Preliminary Enquiry. It is, therefore, necessary that the SP must carefully analyze material available at the time of evaluating the verification report submitted by Verifying Officer so that registration of PE is not resorted to where a Regular Case can be registered…” Hence, two distinct principles emerge from the above: (i) a Preliminary Enquiry is registered when information (received from a complaint or “source information”) after verification indicates serious misconduct on part of a public servant but is not enough to justify the registration of a Regular Case; and (ii) when the information available or after its secret verification reveals the commission of a cognizable offence, a Regular Case has to be registered instead of a Preliminary Enquiry being resorted to necessarily. 28 Paras 9.7-9.8 note that once it is decided that a Preliminary Enquiry is required, a “PE Registration Report” is required to be prepared. Para 9.10 specifies that in cases of corruption, the Preliminary Enquiry should be limited to a scrutiny of records and talking to the bare minimum persons. Para 9.11 notes that the records should be collected under a proper receipt memo (unlike the process of verification) and that the statements herein should be collected in the same manner as they would be at the investigation stage. However, it is clarified that notices under Sections 91 and 160 of the CrPC shall not be resorted to during a Preliminary Enquiry. Paras 9.12-9.14 then discuss the procedure for converting a Preliminary Enquiry into a Regular Case, which has to happen the moment sufficient material is available which discloses the commission of a cognizable offence which could result in result in prosecution. Finally, para 9.16 provides that a Preliminary Enquiry must be completed within three months. 29 The precedents of this Court and the provisions of the CBI Manual make it abundantly clear that a Preliminary Enquiry is not mandatory in all cases which involve allegations of corruption. The decision of the Constitution Bench in Lalita Kumari (supra) holds that if the information received discloses the commission of a cognizable offence at the outset, no Preliminary Enquiry would be required. It also clarified that the scope of a Preliminary Enquiry is not to check the veracity of the information received, but only to scrutinize whether it discloses the commission of a cognizable offence. Similarly, para 9.1 of the CBI Manual notes that a Preliminary Enquiry is required only if the information (whether verified or unverified) does not disclose the commission of a cognizable offence. Even when a Preliminary Enquiry is initiated, it has to stop as soon as the officer ascertains that enough material has been collected which discloses the commission of a cognizable offence. A similar conclusion has been reached by a two Judge Bench in Managipet (supra) as well. Hence, the proposition that a Preliminary Enquiry is mandatory is plainly contrary to law, for it is not only contrary to the decision of the Constitution Bench in Lalita Kumari (supra) but would also tear apart the framework created by the CBI Manual. 30 This view is also supported by the decision of a three judge Bench of this Court in Union of India v. State of Maharashtra 56, which reversed the decision of a two Judge Bench in Subhash Kashinath Mahajan v. State of Maharashtra 57 which had, inter alia, held that “a preliminary enquiry may be conducted by the DSP concerned to find out whether the allegations make out a case under the [Scheduled Cases and Scheduled Tribes (Prevention of Atrocities) Act 1989 58] and that the allegations are not frivolous or motivated”. However, in the three Judge Bench decision, it was held that such a direction was impermissible since neither the CrPC nor the Atrocities Act mandate a preliminary inquiry. Justice Arun Mishra held: “68. The direction has also been issued that the DSP should conduct a preliminary inquiry to find out whether the allegations make out a case under the Atrocities Act, and that the allegations are not frivolous or motivated. In case a cognizable offence is made out, the FIR has to be outrightly registered, and no preliminary inquiry has to be made as held in Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] by a Constitution Bench. There is no such provision in the Code of Criminal Procedure for preliminary inquiry or under the SC/ST Act, as such direction is impermissible. Moreover, it is ordered to be conducted by the person of the rank of DSP. The number of DSP as per stand of the Union of India required for such an exercise of preliminary inquiry is not available. The direction would mean that even if a complaint made out a cognizable offence, an FIR would not be registered until the preliminary inquiry is held. In case a preliminary inquiry concludes that allegations are false or motivated, FIR is not to be registered, in such a case how a final report has to be filed in the Court. Direction 79.4 cannot survive for the other reasons as it puts the members of the Scheduled Castes and Scheduled Tribes in a disadvantageous position in the matter of procedure vis-à-vis to the complaints lodged by members of upper caste, for latter no such preliminary investigation is necessary. In that view of the matter it should not be necessary to hold preliminary inquiry for registering an offence under the 31 In a recent decision of a two Judge Bench in Vinod Dua v. Union of India and others 59, a direction of the Court was sought for requiring “that henceforth FIRs against persons belonging to the media with at least 10 years standing be not registered unless cleared by a committee…”. In refusing such a prayer, the Court observed that doing so would be akin to instituting a preliminary inquiry which was not mandated by the statutory framework. Justice U U Lalit, speaking for the Bench “101…the directions issued in Dr. Subhash Kashinath Mahajan regarding holding of a preliminary inquiry were not found consistent with the statutory framework. The second prayer made in the Writ Petition is asking for the constitution of the Committee completely outside the scope of the statutory framework. Similar such exercise of directing constitution of a Committee was found inconsistent with the statutory framework in the decisions discussed above…Any relief granted in terms of second prayer would certainly, in our view, amount to encroachment upon the field reserved for the legislature. We have, therefore, no hesitation in rejecting the prayer and dismissing the Writ Petition to that extent.” 32 In view of the above discussion, we hold that since the institution of a Preliminary Enquiry in cases of corruption is not made mandatory before the registration of an FIR under the CrPC, PC Act or even the CBI Manual, for this Court to issue a direction to that affect will be tantamount to stepping into the legislative domain. Hence, we hold that in case the information received by the CBI, through a complaint or a “source information” under Chapter 8, discloses the commission of a cognizable offence, it can directly register a Regular Case instead of conducting a Preliminary Enquiry, where the officer is satisfied that the information discloses the commission of a cognizable offence. 33 The above formulation does not take away from the value of conducting a Preliminary Enquiry in an appropriate case. This has been acknowledged by the decisions of this Court in P Sirajuddin (supra), Lalita Kumari (supra) and Charansingh (supra). Even in Vinod Dua (supra), this Court noted that “[a]s a matter of fact, the accepted norm - be it in the form of CBI Manual or like instruments is to insist on a preliminary inquiry”. The registration of a Regular Case can have disastrous consequences for the career of an officer, if the allegations ultimately turn out to be false. In a Preliminary Enquiry, the CBI is allowed access to documentary records and speak to persons just as they would in an investigation, which entails that information gathered can be used at the investigation stage as well. Hence, conducting a Preliminary Enquiry would not take away from the ultimate goal of prosecuting accused persons in a timely manner. However, we once again clarify that if the CBI chooses not to hold a Preliminary Enquiry, the accused cannot demand it as a matter of right. As clarified by this Court in Managipet (supra), the purpose of Lalita Kumari (supra) noting that a Preliminary Enquiry is valuable in corruption cases was not to vest a right in the accused but to ensure that there is no abuse of the process of law in order to target public servants. 34 Having answered the first question in the negative, that leaves the court with the second question of whether the FIR should be quashed in the present case. In order to answer this, we must first consider the scope of the review that a High Court exercises while entertaining a petition for quashing of an FIR under Article 226 of the Constitution or Section 482 of the CrPC. 35 The well settled test is whether, as they stand, the allegations contained in the FIR make out an offence. The locus classicus on this issue is the judgment of a two Judge Bench of this Court in Bhajan Lal (supra), where the Court provided an illustrative set of situations where the High Court may exercise its jurisdiction under Article 226 of the Constitution or Section 482 of the CrPC. Delivering the judgment, “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 36 In a more recent decision of a three Judge Bench of this Court in Neeharika Infrastructure (supra), Justice M R Shah, speaking for the Bench consisting also of one of us (Justice D Y Chandrachud), enunciated the following principles in relation to the Court exercising its jurisdiction under Article 226 of the Constitution or Section “80. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or “no coercive steps to be adopted”, during the pendency of the quashing petition under Section 482 Cr.P.C and/or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or “no coercive steps to be adopted” during the investigation or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under: i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable ii) Courts would not thwart any investigation into the iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the ‘rarest of rare cases (not to be confused with the formation in the context of death penalty). v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the vi) Criminal proceedings ought not to be scuttled at the initial vii) Quashing of a complaint/FIR should be an exception viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not ix) The functions of the judiciary and the police are x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to xii) The first information report is not an encyclopedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure; xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or “no coercive steps to be adopted” and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or “no coercive steps” either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order. xviii) Whenever an interim order is passed by the High Court of “no coercive steps to be adopted” within the aforesaid parameters, the High Court must clarify what does it mean by “no coercive steps to be adopted” as the term “no coercive steps to be adopted” can be said to be too vague and/or broad which can be misunderstood and/or misapplied.” 37 We must now assess whether the Single Judge of the Telangana High Court has, while quashing the FIR, decided within the parameters of the law described above. The High Court has taken note of the following documents filed by the respondents: (i) Income Tax Returns; (ii) disclosures by the first respondent to her Department under the CCS Rules; (iii) an affidavit filed by the second respondent under the RP Act and the Rules; (iv) a letter dated 14 March 2016 by the first respondent to Principal Chief Commissioner of Income Tax (CCA), Chennai in relation to the details of the construction of her house, and proof of it having been taken on the record by an Office Memorandum dated 12 June 2017; and (v) a letter dated 15 June 2016 from the Deputy Commissioner of Income Tax, Hyderabad noting the intimation received from the first respondent in relation to the sale of her property and value realized on 27 February 2016, and the intimation by the first respondent in regard to the investment undertaken by her. After noting these “There is absolutely no dispute that the above documents are true, in the sense they are filed with respective departments and available in the public domain. In view of the law referred above, the income assets and values of assets mentioned in those documents have to be treated as 'known source of income' for the purpose of Section 13 (1) (e) of the Prevention of Corruption Act.” There is a fundamental error on the part of the Single Judge in conflating a document which is in the public realm with the truth of its contents. 38 Thereafter, the High Court has gone on to note that in the counter-affidavit filed by the appellant before them, it has been admitted that the FIR has been prepared only on the basis of “source information” and without verifying the Income Tax Returns of the respondents. Hence, while highlighting the fault in the approach of the appellant in not conducting a Preliminary Enquiry, the High Court then holds it has to scrutinize the irregularities in the FIR. The Single Judge observed thus: “The source information itself states that the petitioners are in possession of disproportionate assets worth Rs.1,10,81,692/-. This Court is unable to comprehend how the source information would exactly reveal 'the amount of disproportionate assets. Even if it is there, the respondents ought to have confirmed it by calling explanation of the petitioners by holding a Preliminary Enquiry which is not done. This circumstance, as submitted by the learned Senior Counsel for the petitioners, would emphasize that the F.I.R. is registered in a hurry that too 'at Chennai, even without taking pains', to conduct preliminary enquiry to ascertain the truth and correctness of the figures of disproportionate assets mentioned in the F.I.R., because, the counter affidavit speaks that on the sole basis, of source information, directly F.I.R. is registered. This Court is unable to accept the correctness of the arguments advanced by the learned Standing Counsel for the respondent that the correctness of such information will be verified by giving 'opportunity' to the petitioners, during course of investigation. That means, the respondents are accepting their mistake in not conducting preliminary enquiry. It is in the light of the above legal and factual issues, this Court is inclined to dwell upon the scrutiny of the irregularities pointed out by the petitioners in the statements A to D of the F.I.R. to adjudicate upon the core issue whether the respondents have prima facie material to conclude that the petitioners are in possession of disproportionate assets.” 39 The High Court has then quashed the FIR by scrutinizing it in detail and pointing out five major grounds. First, it has dealt with the argument that there is a miscalculation of the respondents’ income in the FIR. It has held that while the FIR notes the income of the respondents in the check period to be Rs 1,39,61,014, their Income Tax Returns show it to be Rs 2,47,63,542. Hence, based on the respondents’ Income Tax Returns alone, the High Court has directed that the difference in income of Rs 1,08,02,528 be added to Statement-C in the FIR. Second, it deals with the respondents’ issue with Serial No 9 of Statement-C of the FIR, that while they sold a property for a sum of Rs 1 crore (in accordance with their Income Tax Returns for FY 2015-16), their income is only mentioned as Rs 72,50,000. The High Court has accepted this submission and rejected the appellant’s position that the sum of Rs 72,50,000 was recorded based on their “source information”. As such, it directed that a sum of Rs 25,00,000 be added to the respondents’ income under Statement-C of the FIR. Third, it notes the respondents’ objection to Serial No 26 of Statement-B of the FIR, where the same property has also been included as an asset of the respondents worth Rs 8 lakhs at the end of the check period. It has accepted the respondents’ submission and has directed that the amount of Rs 8 lakhs be struck off from Statement-B of the FIR. Fourth, it deals with the respondents’ objection that their assets at Serial Nos 6 and 7 of Statement-B of the FIR, which are the eastern and western portions of a house constructed by the first respondent, has been overvalued by an amount of Rs 85,78,200 (the FIR mentions its value to be Rs 5,15,50,000, while the respondents contend it to be Rs 4,14,21,800 based on a valuation report submitted by the first respondent and noted in the letter dated 14 March 2016 by the first respondent to Principal Chief Commissioner of Income Tax (CCA), Chennai). The High Court has then noted the appellant’s response in their counter-affidavit that the value of the property in the FIR was mentioned based on “source information”, and thereafter, they have obtained a valuation by the Central Public Works Department60 which valued it at Rs 6,48,85,300. This argument has then been summarily rejected by the High Court by noting that the appellant could not have determined the correct value of the property without conducting a Preliminary Enquiry before registering the FIR. Finally, in relation to this house, the respondents also objected to the value of the elevator in the house being mentioned as 10 lakhs separately in Serial No 31 of Statement-B of the FIR, when they believe it should have already been included within the valuation of the house constructed by them. The High Court held that the appellant could not properly explain why this was included separately and directed for it to be struck off from Statement-B of the FIR, relying upon the letter dated 14 March 2016 by the first respondent to Principal Chief Commissioner of Income Tax (CCA), Chennai in which the valuation report of the house was included. Thereafter, the High Court provided a summary of its conclusions in the form of the following table: I. The following values have to be included in the income of the petitioners shown in Statement-C. 1. Difference of Salary and arrears received 37,67,242 2. Difference of Income of 2nd petitioner 70,35,286 3. Difference of sale consideration received 27,50,000 Total amount of income to be added in 1,35,52,528 II. The following amounts have to be deducted from 1. Difference of value of the Building 85,78,200 2. Cost of Bengaluru property which was 8,00,000 3. Value of Oscan Elevator which is included 10,00,000 in the value of the construction of building Total amount of income to be added in 1,03.78,200 a) Total Income as modified (Statement-C) 6,20,29,158 b) Total value of assets possessed at the 5,86,72,866 It then provided ‘revised’ figures (as compared to the FIR) in another table: A Assets at the beginning of the check 1,35,26,066 B Assets at the end of the check period 5,86,72,866 C Assets during the check period (B-A) 4,51,46,800 D Income during the check period 6,20,29,158 E Expenditure during the check period 40,33,322 On the basis of this, the High Court concluded that no case of Disproportionate Assets against the respondents was made out since their revised income exceeded their expenditure and value of assets in the check period. 40 From the above, it becomes evident that the Single Judge of the Telangana High Court has acted completely beyond the settled parameters which govern the power to quash an FIR. The Single Judge has donned the role of a Chartered Accountant. The Single Judge has completely ignored that the Court was not at the stage of trial or considering an appeal against a verdict in a trial. The Single Judge has enquired into the material adduced by the respondents, compared it with the information provided by the CBI in the FIR and their counter-affidavit, and then pronounced a verdict on the merits of each individual allegation raised by the respondents largely relying upon the documents filed by them (by considering them to be ‘known sources of income’ within the meaning of Section 13(1)(e) of the PC Act). This exercised has been justified on account of the appellant not having conducted a Preliminary Enquiry and hence, not having addressed the respondents’ objections relying upon the documents adduced by them. The reasons provided by the Single Judge for entering into the merits of the dispute while quashing the FIR are specious, especially so considering our finding that the CBI need not hold a Preliminary Enquiry mandatorily. While exercising its jurisdiction under Article 226 of the Constitution to adjudicate on a petition seeking the quashing of an FIR, the High Court should have only considered whether the contents of the FIR – as they stand and on their face – prima facie make out a cognizable offence. However, it is evident that in a judgment spanning a hundred and seven pages (of the paper-book in this appeal) the Single Judge has conducted a mini-trial, overlooking binding principles which govern a plea for quashing an FIR. 41 The judgment of a two Judge Bench of this Court in Gunmala Sales (P) Ltd. v. Anu Mehta 61 makes it abundantly clear that the High Court does not conduct a mini-trial or a roving inquiry while exercising its powers under Section 482 of the “34.4. No restriction can be placed on the High Court's powers under Section 482 of the Code. The High Court always uses and must use this power sparingly and with great circumspection to prevent inter alia the abuse of the process of the court. There are no fixed formulae to be followed by the High Court in this regard and the exercise of this power depends upon the facts and circumstances of each case. The High Court at that stage does not conduct a mini trial or roving inquiry, but nothing prevents it from taking unimpeachable evidence or totally acceptable circumstances into account which may lead it to conclude that no trial is necessary qua a particular Director.” This principle also applies squarely to the exercise of powers by a High Court under Article 226 of the Constitution while considering a writ petition for quashing an FIR. Further, in numerous judgments of this Court it has been held that a court cannot conduct a mini-trial at the stage of framing of charges 62. Hence, doing so at the stage of considering a petition for quashing an FIR under Section 482 of the CrPC or Article 226 of the Constitution is obviously also impermissible. Therefore, we disapprove of the reasoning provided by the Telangana High Court in its impugned judgment dated 11 February 2020 for quashing the FIR. E.2 Whether the FIR is liable to be quashed in the present case 42 Now we must independently assess the FIR in order to adjudicate whether it should be quashed. The FIR in the present case discloses an offence under Section 13(1)(e) which, prior to its amendment through the Amending Act 16 of 2018 with effect from 26 July 2018, provided as follows: “13. Criminal misconduct by a public servant.—(1) A public servant is said to commit the offence of criminal (e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income. State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568, para 18; Bharat Parikh v. CBI, (2008) 10 SCC 109, para 19; Indu Jain v. State of M.P., (2008) 15 SCC 341, para 39; Asian Resurfacing of Road Agency (P) Ltd. v. Explanation.—For the purposes of this section, “known sources of income” means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant.” 43 The ambit of the provision has been explained by a two Judge Bench of this Court in Kedari Lal (supra). Justice U U Lalit held thus: “10. The expression “known sources of income” in Section 13(1)(e) of the Act has two elements, first, the income must be received from a lawful source and secondly, the receipt of such income must have been intimated in accordance with the provisions of law, rules or orders for the time being applicable to the public servant. In N. Ramakrishnaiah [N. Ramakrishnaiah v. State of A.P., (2008) 17 SCC 83 : (2010) 4 SCC (Cri) 454] , while dealing with the said expression, it was observed : (SCC pp. “17. ‘6. … Qua the public servant, whatever return he gets from his service, will be the primary item of his income. [Other income which can conceivably be] income qua the public servant, will be in the regular receipt from (a) his property, or (b) his investment.’ [Ed. : As observed in State of M.P. v. Awadh Kishore Gupta, (2004) 1 SCC 691 at p. 697 : 2004 SCC (Cri) 353, para 6.] ” The categories so enumerated are illustrative. Receipt by way of share in the partition of ancestral property or bequest under a will or advances from close relations would come within the expression “known sources of income” provided the second condition stands fulfilled that is to say, such receipts were duly intimated to the authorities as prescribed.” 44 In the present case, the respondents have filed before us their Income Tax Returns, statements under the CCS Rules, affidavits under the RP Act and all other document filed before the Telangana High Court as well. Based on these documents, the respondents have urged that the calculation of their income, expenditure and value of assets during the check period in the FIR is incorrect. In support of the proposition that these documents can be relied upon, they have pointed out the following observations in the judgment in Kedari Lal (supra): “12. In the instant case, every single amount received by the appellant has been proved on record through the testimony of the witnesses and is also supported by contemporaneous documents and intimations to the Government. It is not the case that the receipts so projected were bogus or was part of a calculated device. The fact that these amounts were actually received from the sources so named is not in dispute. Furthermore, these amounts are well reflected in the income tax returns filed by the appellant. 13. In similar circumstances, the acquisitions being reflected in income tax returns weighed with this Court in granting relief to the public servant. In M. Krishna Reddy v. State [M. Krishna Reddy v. State, (1992) 4 SCC 45 : 1992 SCC (Cri) 801] , it was observed in para 14 : (SCC p. 49) “14. … Therefore, on the face of these unassailable documents i.e. the wealth tax and income tax returns, we hold that the appellant is entitled to have a deduction of Rs 56,240 from the disproportionate assets of Rs 2,37,842.” 15. If the amounts in question, which were duly intimated and are reflected in the income tax return are thus deducted, the alleged disproportionate assets stand reduced to Rs 37,605, which is less than 10% of the income of the appellant. In Krishnanand v. State of M.P. [(1977) 1 SCC 816 : 1977 SCC (Cri) 190] and in M. Krishna Reddy [M. Krishna Reddy v. State, (1992) 4 SCC 45 : 1992 SCC (Cri) 801] , this Court had granted benefit to the public servants in similar circumstances. We respectfully follow the said decisions.” 45 Further, the respondents have also pointed out five infirmities in the FIR, the first four of which are based on the table reproduced in paragraph 10(ix)(b) of this judgment which notes that the value of the respondents’ Disproportionate Assets according to the FIR in the check period was Rs 1,10,81,692. First, it has been pointed out that in Serial No 6 and 7 of Statement-B of the FIR, the value of the first respondents’ constructed house is Rs 5,15,50,000, while its actual value (according to the disclosures made by the respondents in their Income Tax Returns) is Rs 4,29,71,800. It has been argued that the value in the FIR is incorrect, by relying upon letter dated 14 March 2016 submitted by the first respondent to Principal Chief Commissioner of Income Tax (CCA), Chennai where she has notified them of the construction of her house and attached a valuation report. According to this report, the total value of the house was Rs 4,14,21,800. To this, an amount of Rs 15,50,000 has been added to reach a final value of Rs 4,29,71,800, which is Rs 85,78,200 less than the value mentioned in the FIR. Further, while the appellant has defended the valuation in the FIR, based on a valuation conducted by the CPWD in 2018 (which valued the house at Rs 6,48,85,300), the respondents have argued that the CPWD valuation has been done after the FIR had been filed and cannot be used to defend the figures therein. Second, it has been argued that Serial No 31 of Statement-B of the FIR records that the respondents have an asset worth Rs 10 lakhs, which is an elevator inside the house mentioned in the assets. The argument against its inclusion is two-fold: (i) the value of the elevator would have already been included within the value of the house; and (ii) even the appellant’s rejoinder, at paragraph 16, admits this to be a mistake and notes that the elevator’s value is “subsumed in the construction cost of the house property of the Respondent and hence this value will be reduced”. Hence, on the basis of the first two submissions, the respondents argue that the value of the Disproportionate Assets in the FIR will have to be reduced by Rs 85,78,200 and Rs 10 lakhs, giving a new figure of Rs 25,03,492, which is less than 10 per cent of their income during the check period. The third and fourth infirmities have been argued collectively. The respondents have argued that Serial No 26 of Statement-B of the FIR includes a property in Bangalore having a value of Rs 8,00,000. However, Serial No 9 of Statement-C of the FIR adds Rs 72,50,000 to the respondents’ income as being derived from the sale of the same Bangalore property. Hence, it is urged that there is an internal contradiction in the FIR where the Bangalore property has been accounted for both as an asset of the respondents while also accounting for the income through its sale. Further, in relation to the income, it has been argued that the respondents’ Income Tax Returns show that they received Rs 1 crore from the sale of the Bangalore property, but this has been arbitrarily reduced by Rs 27,50,000. In its rejoinder, the appellant has justified both of these by contesting the acquisition of the Bangalore property on the ground that there was no valid title, and placing a serious doubt about the alleged sale and the very character of the transaction. According to the respondents, the value of the Disproportionate Assets in the FIR will stand reduced by Rs 8,00,000 and Rs 27,50,000, leading to an excess of respondents’ income of Rs 20,46,508 during the check period. Finally, it was also argued that the FIR has been filed solely relying upon “source information”, which consists of documents seized by the CBI during the investigation of another case, which is unrelated to the present one. Further, the respondents have also produced an order dated 28 February 2019 of the Principal Special Judge for CBI Cases (VIIIth Additional City Civil Court, Chennai) where this other case has been closed upon the submission of a closure report under Section 173 of the CrPC where it is noted that the FIR was closed due to “mistake of fact”. 46 On the other hand, it has been argued on behalf of the appellant that the documents relied upon by the respondents are not unimpeachable and have to be proved at the stage of trial. Hence, it was urged that the arguments made on the basis of these documents should not be accepted by this Court. The appellant has relied upon the judgment of a two Judge Bench of this Court in J. Jayalalitha (supra), where it has been held that documents such as Income Tax Returns cannot be relied upon as conclusive proof to show that the income is from a lawful source under the PC Act. Justice P C Ghose held thus: “191. Though considerable exchanges had been made in course of the arguments, centering around Section 43 of the Evidence Act, 1872, we are of the comprehension that those need not be expatiated in details. Suffice it to state that even assuming that the income tax returns, the proceedings in connection therewith and the decisions rendered therein are relevant and admissible in evidence as well, nothing as such, turns thereon definitively as those do not furnish any guarantee or authentication of the lawfulness of the source(s) of income, the pith of the charge levelled against the respondents. It is the plea of the defence that the income tax returns and orders, while proved by the accused persons had not been objected to by the prosecution and further it (prosecution) as well had called in evidence the income tax returns/orders and thus, it cannot object to the admissibility of the records produced by the defence. To reiterate, even if such returns and orders are admissible, the probative value would depend on the nature of the information furnished, the findings recorded in the orders and having a bearing on the charge levelled. In any view of the matter, however, such returns and orders would not ipso facto either conclusively prove or disprove the charge and can at best be pieces of evidence which have to be evaluated along with the other materials on record. Noticeably, none of the respondents has been examined on oath in the case in hand. Further, the income tax returns relied upon by the defence as well as the orders passed in the proceedings pertaining thereto have been filed/passed after the charge- sheet had been submitted. Significantly, there is a charge of conspiracy and abetment against the accused persons. In the overall perspective therefore neither the income tax returns nor the orders passed in the proceedings relatable thereto, either definitively attest the lawfulness of the sources of income of the accused persons or are of any avail to them to satisfactorily account the disproportionateness of their pecuniary resources and properties as mandated by Section 13(1)(e) of the Act. 200. In Vishwanath Chaturvedi (3) v. Union of India [Vishwanath Chaturvedi (3) v. Union of India, (2007) 4 SCC 380 : (2007) 2 SCC (Cri) 302] , a writ petition was filed under Article 32 of the Constitution of India seeking an appropriate writ for directing the Union of India to take appropriate action to prosecute R-2 to R-5 under the 1988 Act for having amassed assets disproportionate to the known sources of income by misusing their power and authority. The respondents were the then sitting Chief Minister of U.P. and his relatives. Having noticed that the basic issue was with regard to alleged investments and sources of such investments, Respondents 2 to 5 were ordered by this Court to file copies of income tax and wealth tax returns of the relevant assessment years which was done. It was pointed out on behalf of the petitioner that the net assets of the family though were Rs 9,22,72,000, as per the calculation made by the official valuer, the then value of the net assets came to be Rs 24 crores. It was pleaded on behalf of the respondents that income tax returns had already been filed and the matters were pending before the authorities concerned and all the payments were made by cheques, and thus the allegation levelled against them were baseless. It was observed that the minuteness of the details furnished by the parties and the income tax returns and assessment orders, sale deeds, etc. were necessary to be carefully looked into and analyzed only by an independent agency with the assistance of chartered accountants and other accredited engineers and valuers of the property. It was observed that the Income Tax Department was concerned only with the source of income and whether the tax was paid or not and, therefore, only an independent agency or CBI could, on court direction, determine the question of disproportionate assets. CBI was thus directed to conduct a preliminary enquiry into the assets of all the respondents and to take further action in the matter after scrutinizing as to whether a case was made out or not. 201. This decision is to emphasize that submission of income tax returns and the assessments orders passed thereon, would not constitute a foolproof defence against a charge of acquisition of assets disproportionate to the known lawful sources of income as contemplated under the PC Act and that further scrutiny/analysis thereof is imperative to determine as to whether the offence as contemplated by the PC Act is made out or not.” 47 In relation to the arguments on the alleged infirmities of the FIR, the contentions of the respondents have been refuted by the appellants by urging that: (i) the first submission of the respondents is based entirely upon the letter dated 14 March 2016 submitted by the first respondent to Principal Chief Commissioner of Income Tax (CCA), Chennai, which includes a valuation report. The value set out in in this report cannot be relied upon at this stage, especially when the CPWD Report values the house to have a much higher value; (ii) in relation to the third and fourth submissions, it is argued that the inclusion of the Bangalore property as an asset while including the money from its sale as income is fair since the very sale in itself is being disputed by the appellant. Hence, the veracity of the documents of sale is something that can only be determined at the stage of trial; and (iii) in relation to the final submission, it was argued that the documents which gave rise to the “source information” were seized during another case being investigated by the appellant where the first respondent was one of eight officers of the Income Tax department accused of taking benefits (such as hotel stays) from Chartered Accountants. These documents were seized during four raids conducted at the residences of the first respondent, and she herself was also examined in that case. It has been submitted that the documents which gave rise to the “source information” were seized during the raids conducted at the first respondent’s residences in Secunderabad on 27 June 2016 and in Jubilee Hills, Hyderabad on 8 July 2016. Hence, the fact that the other case during whose investigation these documents were seized has now been closed does not affect the FIR in the present case, since the charges against the first respondent are entirely different. 48 At the very outset, we must categorically hold that the documents which have been relied upon by the respondents cannot form the basis of quashing the FIR. The value and weight to be ascribed to the documents is a matter of trial. Both the parties have cited previous decisions of two Judge Benches of this Court in order to support their submissions. There is no clash between the decisions in Kedari Lal (supra) and J. Jayalalitha (supra) for two reasons: (i) the judgment in J. Jayalalitha (supra) notes that a document like the Income Tax Return, by itself, would not be definitive evidence in providing if the “source” of one’s income was lawful since the Income Tax Department is not responsible for investigating that, while the facts in the judgment in Kedari Lal (supra) were such that the “source” of the income was not in question at all and hence, the Income Tax Returns were relied upon conclusively; and (ii) in any case, the decision in Kedari Lal (supra) was delivered while considering a criminal appeal challenging a conviction under the PC Act, while the present matter is at the stage of quashing of an FIR. 49 In the present case, the appellant is challenging the very “source” of the respondents’ income and the questioning the assets acquired by them based on such income. Hence, at the stage of quashing of an FIR where the Court only has to ascertain whether the FIR prima facie makes out the commission of a cognizable offence, reliance on the documents produced by the respondents to quash the FIR would be contrary to fundamental principles of law. The High Court has gone far beyond the ambit of its jurisdiction by virtually conducting a trial in an effort to absolve the respondents. During the course of her submissions, Ms Bhati, learned ASG has stated on the instructions of the Investigating Officer, that during the course of the investigation about 140 witnesses have been examined and over 500 documents have been obtained. The investigation is stated to be at an advanced stage and is likely to conclude within a period of two to three months. At the same time, the Court has been assured by the ASG on the instructions of the Investigating Officer that before concluding the investigation, the first and second respondents will be called in order to enable them to tender their explanation in respect of the heads of Disproportionate Assets referred to in the FIR. 50 In relation to the other arguments raised by the respondents to point out infirmities in the FIR, adjudicating those at this stage will trench upon evidentiary proof at the trial. That is the mistake that the Telangana High Court committed, which this Court would be remiss to repeat. The only infirmity pointed out by the respondents which has been acceded to by the appellant is in relation to the addition of the value of the elevator separately when the whole house had already been valued. However, by itself, it only being a value of Rs 10 lakhs, this will not be enough to take away the whole basis of the Disproportionate Assets case against the respondents. Hence, at this stage, we cannot quash the FIR against the respondents and hold that the appellant’s investigation pursuant to it shall continue. 51 Before parting, we also note that extensive arguments had been raised before us by the respondents in relation to whether the appellant could even register the case against the respondents, since the State of Andhra Pradesh has withdrawn the general consent given to the appellant under Section 6 of the DSPE Act through an order dated 8 November 2018. This has been countered by the appellant by noting: (i) that the FIR has been registered in Chennai, and that the general consent by the State of Tamil Nadu under Section 6 of the DSPE Act still stands; (ii) that the first respondent is an employee of the Central Government; and (iii) that the second respondent is alleged to be an abettor under Section 109 of the IPC. Similarly, arguments have also been raised by both sides in relation to the jurisdiction of the Telangana High Court and whether the FIR could have been registered against the second respondent without the consent of the Speaker (since he is a sitting MLA). However, at this stage, we do not think it is necessary for us to adjudicate them and we are leaving these issues open without commenting upon their merits. 52 Therefore, in conclusion, we set aside the impugned judgment dated 11 February 2020 of the Single Judge of the Telangana High Court quashing the FIR and any proceedings pursuant to it. The appellant can continue with its investigation based upon the FIR. 53 The appeal is allowed and the impugned judgment of the Single Judge of the High Court for the State of Telangana is set aside. 54 Pending applications, if any, also stand disposed of.
"An FIR will not be made invalid just because a Preliminary Enquiry was not conducted," the Court stated in its decision. The Supreme Court has ruled that the Central Bureau of Investigation (CBI) does not have to conduct a preliminary enquiry in corruption cases. If the CBI receives information, from a complaint or other sources, that shows a serious crime (a "cognizable offence") has been committed, it can directly register a full investigation (a "Regular Case"). This can happen instead of doing a preliminary enquiry, as long as the officer is satisfied that the information reveals a serious crime. The Supreme Court has decided that a preliminary enquiry, which is an initial check, is not a must for the Central Bureau of Investigation (CBI) in cases involving corruption. The judges, including Justices DY Chandrachud, Vikram Nath, and BV Nagarathna, noted that if the CBI gets information, through a complaint or other "source information," that reveals a serious crime (a "cognizable offence"), they can open a full investigation (a "Regular Case") right away. This can happen instead of doing a preliminary enquiry, as long as the officer is confident that the information clearly shows a serious crime has been committed. The Court confirmed in its decision that an FIR (First Information Report) will not be made invalid just because a preliminary enquiry was not carried out. The court made it clear that if the CBI chooses not to hold a preliminary enquiry, the person accused of a crime cannot demand it as a legal right. In the specific case they were looking at, the Telangana High Court had canceled an FIR for a "disproportionate assets" case. This means the person was accused of having more wealth than their known income. The High Court had decided that the CBI should have done a preliminary enquiry first, as outlined in their own rules, the Central Bureau of Investigation (Crime) Manual 2005, before officially filing the FIR. When the case went to the Supreme Court, the CBI argued that its own manual doesn't require a preliminary enquiry before an FIR is filed; instead, its rules are just guidelines. However, the other side argued that a preliminary enquiry is crucial in corruption cases involving government workers, especially those with disproportionate assets. They said that rushing to file an FIR without a proper check could lead to false or weak complaints, which could seriously harm these officials' careers. So, the main question the court had to answer was: Does the CBI *have* to conduct a preliminary enquiry before filing an FIR in every single case where government workers are accused of corruption? The court looked at many previous rulings, including a major one called Lalita Kumari v. Govt. of UP. It noted that none of these rulings say that a preliminary enquiry *must* be done before an FIR is filed in corruption cases. The court repeated that an FIR isn't made invalid if a preliminary enquiry hasn't happened. It also explained that when the Lalita Kumari case mentioned that a preliminary enquiry can be useful in corruption cases, it wasn't giving the accused person a right to demand one. Instead, it was to make sure that the legal process isn't misused to unfairly target government workers. The court also reviewed the CBI's own manual and pointed out two things: First, a preliminary enquiry is started when information, after being checked, suggests a government worker has done something seriously wrong, but there isn't quite enough evidence to open a full investigation (a "Regular Case"). Second, if the information, even after a secret check, clearly shows a serious crime (a "cognizable offence") has been committed, then a full investigation (a "Regular Case") *must* be registered right away, rather than just doing a preliminary enquiry. Based on this, the court concluded: "32. After considering everything, we have decided. The law, including the CrPC, PC Act, and the CBI Manual, does not require a preliminary enquiry before an FIR is filed in corruption cases. If this Court ordered such an enquiry, it would be going beyond its power and acting like a body that makes laws. Therefore, we rule that if the CBI receives information, from a complaint or another source as outlined in Chapter 8, that clearly shows a serious crime (a "cognizable offence") has been committed, it can directly open a full investigation (a "Regular Case"). This can happen instead of conducting a preliminary enquiry, as long as the officer is convinced that the information truly reveals a serious crime." The court made it clear that even though it's not always required, this decision doesn't mean that a preliminary enquiry isn't valuable or useful in certain suitable cases. "33. Previous rulings by this Court, like those in P Sirajuddin, Lalita Kumari, and Charansingh, have all recognized this. Even in the Vinod Dua case, this Court pointed out that 'it's generally accepted practice – whether in the CBI Manual or similar guides – to push for a preliminary inquiry.' Starting a full investigation (a "Regular Case") can seriously harm an officer's career if the accusations later turn out to be false. During a preliminary enquiry, the CBI can look at documents and talk to people, just like in a full investigation. This means any information collected can still be used later if a full investigation starts. So, doing a preliminary enquiry doesn't prevent the main goal of bringing accused people to justice quickly. However, we want to make it clear again: if the CBI decides not to conduct a preliminary enquiry, the accused person cannot demand it as a legal right. As this Court explained in the Managipet case, when the Lalita Kumari case mentioned that a preliminary enquiry is valuable in corruption cases, it wasn't to give the accused a right, but to ensure the legal process isn't misused to unfairly target government workers," the court said. After reviewing the details of this specific case, the judges overturned the High Court's decision. They ruled that the CBI could go ahead with its investigation based on the FIR that had already been filed.
This judgment has been divided into sections to facilitate analysis. They are: D Whether a Preliminary Inquiry is mandatory before registering an FIR E.2 Whether the FIR is liable to be quashed in the present case 1 The appeal arises from a judgment dated 11 February 2020 of a Single Judge of the High Court for the State of Telangana, by which: (i) a writ petition 1 filed by the respondents under Article 226 of the Constitution of India was allowed; and (ii) the First Information Report 2 dated 20 September 2017 registered against the respondents was set aside, together with proceedings taken up pursuant to the FIR. 2 The first respondent is a Commissioner of Income Tax while the second respondent is her spouse. The second respondent is a Member of the Legislative Assembly 3 and is a Minister in the State government of Andhra Pradesh. The FIR4 dated 20 September 2017 has been registered against the first respondent for being in possession (allegedly) of assets disproportionate to her known sources of income. The second respondent is alleged to have abetted the offence. The FIR has thus been registered for offences punishable under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act 1988 5 and Section 109 of the Indian Penal Code 1860 6. The allegation is of possession of Disproportionate Assets to the tune of Rs 1,10,81,692, which was 22.86 per cent of the income earned during the check period between 1 April 2010 to 29 February 2016. 3 While quashing the FIR, the High Court held that: (i) the information about the respondents’ income can be ascertained from their ‘known sources of income’ under Section 13(1)(e) of the PC Act, such as their Income Tax Returns, information submitted to their department under the Central Civil Services (Conduct) Rules 1964 7 and affidavit filed under the Representation of the People Act 1951 8 and the Rules under it; (ii) to counter the veracity of the information from these sources, the appellant, Central Bureau of Investigation 9, should have conducted a Preliminary Enquiry under the Central Bureau of Investigation (Crime) Manual 200510 before registration of the FIR; and (iii) on the basis of the information ascertained from these ‘known sources of income’, the allegations against the respondents in the FIR prima facie seem unsustainable. This view of the High Court has been called into question in these proceedings. 4 Since 1992, the first respondent is a Civil Servant of the Indian Revenue Services 11, and was working as Commissioner of Income Tax (Audit -II), Tamil Nadu & Pondicherry when the FIR was registered against her. She is presently working as Commissioner of Income Tax (Audit) at Hyderabad. The second respondent is the spouse of the first respondent, and was also a Civil Servant working in the Indian Railway Accounts Services till 2009. At the time of the registration of the FIR, he was and continues to be, at present, an MLA of the State of Andhra Pradesh and holds the post of the Minister of Education for the State of Andhra Pradesh. He was also a Member of the Committees on Assurances, SC&ST Welfare and Public 5 The FIR was registered against the respondents by CBI’s Anti-Corruption Branch 12 in Chennai on 20 September 2017. The FIR noted that the “check period” was between 1 April 2010 and 29 February 2016. The FIR records that it was registered on the basis of “source information” received by the CBI ACB Chennai on the same date, at about 4 pm. There are four tabulated statements in the FIR. Statement A provides that the respondents’ assets at the beginning of the check period (1 April 2010) were in the amount of Rs 1,35,26,066 while Statement-B indicates that their assets at the end of the check period (29 February 2016) were Rs 6,90,51,066. Hence, their assets earned during the check period (i.e., between 1 April 2010 to 29 February 2016) were alleged to be to the tune of Rs 5,55,25,000. According to Statement-C, the respondents’ income during the check period was Rs 4,84,76,630 while according to Statement-D their expenditure during the check period was Rs 40,33,322. Hence, the respondents are alleged to have acquired assets/pecuniary advantage to the extent of Rs 5,95,58,322 (adding the Assets, Rs 5,55,25,000 and Expenditure, Rs 40,33,322) against an Income of Rs 4,84,76,630 earned during the check period. Therefore, their Disproportionate Assets 13 during the check period were computed at Rs 1,10,81,692, which is 22.86 per cent of the total income earned by them. The computation reflected in the FIR is as follows: Calculated by adding the Assets and Expenditure during the check period, and subtracting the Income from it. “Calculation of Disproportionate Assets:- A. Assets at the beginning of the check 13,526,066 B. Assets at the end of the check period 69,051,066 C. Assets during the check period (B-A) 55,525,000 D. Income during the check period 48,476,630 E. Expenditure during the check period 4,033,322 On the basis of the FIR dated 20 September 2017, the CBI ACB Chennai registered a case 14 against the respondents for offences punishable under Sections 13(2) read with 13(1)(e) of the PC Act and Section 109 of the IPC. 6 On 5 March 2018, the respondents filed a writ petition before the Telangana High Court under Article 226 of the Constitution seeking quashing of the FIR. In their writ petition, the respondents averred that: (i) the FIR is politically motivated since the second respondent belongs to a rival political party; (ii) the appellant did not conduct a Preliminary Enquiry before registering the FIR; and (iii) the particulars in the FIR did not constitute an offence and would not, as they stand, result in the respondents’ conviction. Further, the petition pointed out inconsistencies in the FIR where certain assets had been allegedly over-valued while income had been under- valued, without any explanation. Hence, the petition before the High Court urged that the FIR was liable to be quashed. To support their contentions, the respondents annexed their Income Tax Returns, immovable property declarations for the period between 2010 to 2017 made by the first respondent under the CCS Rules, affidavit filed by the second respondent under the RP Act and Rules thereunder in 2014 and letters under the CCS Rules explaining the cost/value of construction of their house. 7 In response, the appellant filed a counter-affidavit before the Telangana High Court where it was stated, inter alia, that: (i) the writ petition was filed belatedly, two years after the registration of the FIR; (ii) in any case, the writ petition should have been filed before the Madras High Court since the Court of the Principal Special Judge for CBI Cases, (VIIIth Additional City Civil Court), Chennai had jurisdiction over the case and the respondents were aware of this, and the FIR had also been registered by the CBI ACB at Chennai; (iii) the FIR had been registered on the basis of source information, and the case was still under investigation; (iv) the respondents would be provided a chance to explain their case during the investigation, and there was no requirement to conduct Preliminary Enquiry before the registration of the FIR; and (v) the respondents’ income and assets cannot be conclusively ascertained from the documents annexed by them, since their veracity has to be determined during the investigation. Hence, the appellants urged that the FIR could not be quashed. 8 As noted earlier in this judgment, the Telangana High Court allowed the respondents’ writ petition by its impugned judgement dated 11 February 2020 and quashed the FIR, and set aside all proceedings initiated pursuant to it. The appellant CBI has now moved this Court for challenging the decision of the High Court. 9 Assailing the judgment of the Telangana High Court, Ms Aishwarya Bhati, Additional Solicitor General 15 appearing on behalf of the CBI has urged the following (i) The Telangana High Court did not have the jurisdiction to entertain the writ petition filed by the respondents since: a. The FIR had been registered by the CBI ACB at Chennai; and b. It had been submitted to the Principal Special Judge for CBI Cases, (VIIIth Additional City Civil Court), Chennai. Hence, only the Madras High Court had jurisdiction to entertain the writ petition; (ii) The CBI Manual does not make it mandatory to conduct a Preliminary Enquiry before the registration of the FIR and its provisions are directory; (iii) A Preliminary Enquiry is only conducted when the information received is not sufficient to register a Regular Case. However, when the information available is adequate to register a Regular Case since it discloses the commission of a cognizable offence, no Preliminary Enquiry is necessary. This will depend on the facts and circumstances of each case, and the Preliminary Enquiry cannot be made mandatory for all cases of alleged corruption. This proposition finds support in the judgments of this Court in Lalita Kumari v. Govt. of UP and others 16 (“Lalita Kumari”) and The State of Telangana v. Managipet 17 (“Managipet”); (iv) The FIR was registered on the basis of reliable source information collected during the investigation of another case18 in which the first respondent was one of the accused. During the investigation of that case, CBI conducted searches at four places belonging to the first respondent during which documents were seized and she was also examined. On the basis of such information and documents, the FIR was registered in the present case. Hence, there was no need for a Preliminary Enquiry; (v) There is also no need to conduct a Preliminary Enquiry since the respondents will be provided with an opportunity to explain each and every acquisition of their assets, and their income and expenditure during the check period, during the investigation. Hence, it was not necessary to provide this opportunity before the registration of an FIR (through a Preliminary Enquiry) since there would have been a risk of tampering with or destruction of evidence by the accused persons; (vi) The Investigating Officer has no duty to call for any explanation from the accused in relation to their assets before registering an FIR against them since doing so would further lengthen the proceeding. In any case, such an opportunity is available to the accused persons at the stage of trial. This principle emerges from the judgments of this Court in K. Veeraswami (2014) 2 SCC 1, paras 31-35, 37-39, 83-86, 89-92, 93-96, 101-105, 106-107, 111-112, 114-119 and 120 v. Union of India19 (“K. Veeraswami”), Union of India and another v. W.N. Chadha 20, State of Maharashtra v. lshwar Piraji Kalpatri 21, Narendar G. Goel v. State of Maharashtra 22 and Samaj Parivarthan (vii) The FIR has been registered against the second respondent under Section 109 of the IPC as an abettor, being in a fiduciary relationship with the first respondent as her spouse. As such, no consent of the Speaker was required before the registration of the FIR against the second respondent. A general consent has been accorded to the CBI by the State of Tamil Nadu 24 under Section 6 of the Delhi Special Police Establishment Act 1946 25 for the offences under the PC Act, which have been notified under Section 3 of the DSPE Act. The first respondent is an officer of the (viii) While hearing a petition seeking the quashing of an FIR, the High Court has to consider the contents of the FIR and whether the allegations made in it prima facie constitute an offence. This is a settled principle, reiterated recently by this court in Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra and others 26 (“Neeharika Infrastructure”). In the present case, the High Court has gone beyond the scope of its powers and 2021 SCC OnLine SC 315, paras 36-37, 46, 50-51, 57 and 80 (xii-xviii) conducted a mini-trial while considering the evidence put forward by the (ix) The High Court has erred in relying upon the Income Tax Returns and other documents filed by the respondents while quashing the FIR, since their veracity as “lawful sources of income” will have to be determined during the investigation, which has been ongoing for more than two years. The decision of this Court in State of Karnataka v. J. Jayalalitha 27 (“J. Jayalalitha”) reiterates this principle; (x) The High Court has solely relied on the documents filed by the respondents while calculating their income, expenditure and value of assets to hold that they did not possess any Disproportionate Assets. However, no explanation has been provided about why the calculations done by the CBI resulting in the filing of the FIR and during its subsequent investigation should be overlooked in favor of the respondents’ (xi) Pursuant to the stay granted by this Court of the impugned judgment of the High Court, while issuing notice in the present proceedings, the investigation has resumed and is nearly complete. Nearly 140 witnesses have been examined, and 7500 documents have been obtained, and it has been stated that the investigation would be completed within a period of two to three months. 10 Mr Siddharth Luthra and Mr Siddharth Dave, Senior Counsel appearing on behalf of the respondents opposed the submissions and urged that: (i) The Telangana High Court had jurisdiction to entertain the writ petition a. No assets of the respondents are located in the State of Tamil Nadu, while many of the properties are located in the State of Andhra Pradesh. The jurisdiction of the High Court under Article 226 of the Constitution should be exercised liberally while quashing an FIR in order to prevent the abuse of process of law. This finds support in the judgments of this Court in Shanti Devi Alia Shanti Mishra v. Union of India28, Navinchandra N. Majithia v. State of Maharashtra 29, Pepsi Foods Ltd. v. Special Judicial Magistrate 30 and Kapil Agarwal v. b. In any case, CBI admitted to the jurisdiction of the Telangana High Court when it did not challenge its initial order dated 24 September 2019 admitting the respondents’ writ petition; (ii) In view of the decision of this court in Vineet Narain v. Union of India 32 (“Vineet Narain”), the provisions of the CBI Manual must be followed strictly by the CBI. This has been reiterated in Shashikant v. CBI 33 (“Shashikant”), CBI v. Ashok Kumar Aggarwal 34 (“Ashok Kumar Aggarwal”) and State of Jharkhand v. Lalu Prasad Yadav35; (iii) According to para 9.1 of the CBI Manual, a Preliminary Enquiry must be conducted before an FIR is registered in order to collect sufficient material which prima facie establishes the commission of an offence. This is emphasized in the judgments of this Court in Shashikant (supra) and Nirmal Singh Kahlon v. State of Punjab 36 (“Nirmal Singh Kahlon”); (iv) A Preliminary Enquiry before the registration of an FIR is a necessary requirement in cases of alleged corruption involving public servants, including those of Disproportionate Assets, since undue haste would lead to registration of frivolous and untenable complaints which could affect the careers of these officials. The judgments of this Court in Yashwant Sinha v. CBI 37 (“Yashwant Sinha”), Charansingh v. State of Maharashtra 38 (“Charansingh”), P. Sirajuddin v. State of Madras 39 (“P. Sirajuddin”), Nirmal Singh Kahlon (supra) 40 and Lalita Kumari (supra) 41 support this (v) The FIR states that it was filed on the basis of source information received by the CBI ACB Chennai at 4 pm on 20 September 2017, following which the FIR was registered and sent to the Court of the Principal Special Judge for CBI Cases, (VIIIth Additional City Civil Court), Chennai at 5 pm and was received there by 6.25 pm. Hence, it is evident that no verification or Preliminary Enquiry was conducted before registering the FIR; (vi) The failure of CBI to conduct a Preliminary Enquiry has adversely affected the right of defence of the respondents since their right to explain their income/expenditure/assets has been taken away and an FIR has been (vii) In accordance with the CBI Manual, only the Director of CBI and not any of its designated officers, has the power to register a case in terms of Annexure 6A to the CBI Manual or pass an order for a Preliminary Enquiry. Under para 14.39 of the CBI Manual, an investigation in a Disproportionate Assets case has to be completed within 18 months, while it has been ongoing for more than two years in the present case; (viii) In regard to the second respondent, CBI has no authority to investigate a a. While the second respondent may be a public servant under the PC Act, the consent for his prosecution can only be provided by the Speaker and not the Central Government. Support for this proposition arises from the judgments of this Court in P.V. Narasimha Rao v. State (CBI/SPE) 42 and State of Kerala v. K. Ajith and others 43; Criminal Appeal No 698 of 2021, paras 24, 33, 36-39 and 61-64 b. Even according to the decision of this Court in State of West Bengal v. Committee for Protection of Democratic Rights 44, the CBI can exercise powers and jurisdiction under the PC Act against an MLA or an MP only on a direction of this Court/High Court or on an order from c. The CBI has no authority since under the DSPE Act: i. No notification has been issued by the Central Government specifying the offences against an MLA to be investigated by the ii. No order has been passed by the Central Government extending the powers and jurisdiction of CBI in the State of Telangana in respect of the offences specified under Section 3 (Section 5 of the iii. Consent of the State Government has not been obtained for the exercise of powers by the CBI in the State of Telangana (Section 6 iv. In support of this, reliance is placed upon judgments of this Court in Mayawati v. Union of India 45, M. Balakrishna Reddy v. CBI 46, Central Bureau of Investigation v. State of Rajasthan 47 and Kazi (ix) The FIR also deserves to be quashed since: a. It does not differentiate in relation to the separate role of the two respondents and clubs the charges against them, which vitiates their independent right of defense. Further, the FIR has been filed against the second respondent in Chennai even though he has never held any public office there and no cause of action arises there; and b. The complaint is completely false since the respondents do not have any Disproportionate Assets in the check period but rather have an excess of income. To support this, the following chart has been filed along with the counter-affidavit of the first respondent: SL Description Amount as Actual Revised DA (in price in STM. C. (x) The High Court has not solely relied upon the documents produced by the respondents, while ignoring the material elicited by the CBI through its investigation. The documents produced by the respondent (Income Tax Returns, et al) are lawful sources to determine the source of one’s income, and can be relied upon while determining whether a ‘public servant’ under Section 13(1)(e) of the PC Act has accumulated Disproportionate Assets in comparison to their lawful income. Hence, the High Court could have legitimately assessed the case of Disproportionate Assets against the respondents by relying on such documents. In support of this proposition, reliance is placed upon judgments of this Court in Harshendra Kumar D. v. Rebatilata Koley 49, Suresh Kumar Goyal v. State of U.P. 50, Pooja Ravinder Devidasani v. State of Maharashtra 51, Kedari Lal v. State of M.P. 52 (“Kedari Lal”) and State of M.P. v. Mohanlal Soni 53; and (xi) The FIR deserved to be quashed in terms of the guidelines enunciated in paragraph 102 (1, 3, 5, 6 and 7) of this Court’s judgment in State of Haryana & others v. Bhajan Lal54 (“Bhajan Lal”). 11 The rival submissions now fall for our consideration. Based on the submissions, this Court is called upon to decide two questions: (i) whether the CBI is mandatorily required to conduct a Preliminary Enquiry before the registration of an FIR in every case involving claims of alleged corruption against public servants; and (ii) independent of the first question, whether the judgment of the High Court to quash the FIR can be sustained in the present case. (2014) 16 SCC 1, paras 15, 17, 23, 27-28 and 30 D Whether a Preliminary Inquiry is mandatory before registering an FIR 12 Before proceeding with our analysis of the issue, it is important to understand what previous judgements of this Court have stated on the issue of whether CBI is required to conduct a Preliminary Enquiry before the registration of an FIR, especially in cases of alleged corruption against public servants. 13 The first of these is a judgment of a two Judge Bench in P Sirajuddin (supra), in which it was observed that before a public servant is charged with acts of dishonesty amounting to serious misdemeanor, some suitable preliminary enquiry must be conducted in order to obviate incalculable harm to the reputation of that “17…Before a public servant, whatever be his status, is publicly charged with acts of dishonesty which amount to serious misdemeanour or misconduct of the type alleged in this case and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. The lodging of such a report against a person, specially one who like the appellant occupied the top position in a department, even if baseless, would do incalculable harm not only to the officer in particular but to the department he belonged to, in general...” 14 The above decision was followed by another two Judge Bench in Nirmal Singh Kahlon (supra), where it was observed that in accordance with the CBI Manual, the CBI may only be held to have established a prima facie case upon the completion of a Preliminary Enquiry. Justice S B Sinha held thus: “30. Lodging of a first information report by CBI is governed by a manual. It may hold a preliminary inquiry; it has been given the said power in Chapter VI of the CBI Manual. A prima facie case may be held to have been established only on completion of a preliminary enquiry.” 15 The most authoritative pronouncement of law emerges from the decision of a Constitution Bench in Lalita Kumari (supra). The issue before the Court was whether “a police officer is bound to register a first information report (FIR) upon receiving any information relating to commission of a cognizable offence under Section 154 of the Code of Criminal Procedure 1973…or the police officer has the power to conduct a ‘preliminary inquiry’ in order to test the veracity of such information before registering the same”. Answering this question on behalf of the Bench, Chief Justice P Sathasivam held that under Section 154 of the Code of Criminal Procedure 1973 55, a police officer need not conduct a preliminary enquiry and must register an FIR when the information received discloses the commission of a cognizable offence. Specifically with reference to the provisions of the CBI Manual, “89. Besides, the learned Senior Counsel relied on the special procedures prescribed under the CBI Manual to be read into Section 154. It is true that the concept of “preliminary inquiry” is contained in Chapter IX of the Crime Manual of CBI. However, this Crime Manual is not a statute and has not been enacted by the legislature. It is a set of administrative orders issued for internal guidance of the CBI officers. It cannot supersede the Code. Moreover, in the absence of any indication to the contrary in the Code itself, the provisions of the CBI Crime Manual cannot be relied upon to import the concept of holding of preliminary inquiry in the scheme of the Code of Criminal Procedure. At this juncture, it is also pertinent to submit that CBI is constituted under a special Act namely, the Delhi Special Police Establishment Act, 1946 and it derives its power to investigate from this Act.” However, the Court was also cognizant of the possible misuse of the powers under criminal law resulting in the registration of frivolous FIRs. Hence, it formulated “exceptions” to the general rule that an FIR must be registered immediately upon the receipt of information disclosing the commission of a cognizable offence. The “115. Although, we, in unequivocal terms, hold that Section 154 of the Code postulates the mandatory registration of FIRs on receipt of all cognizable offences, yet, there may be instances where preliminary inquiry may be required owing to the change in genesis and novelty of crimes with the passage 117. In the context of offences relating to corruption, this Court in P. Sirajuddin [P. Sirajuddin v. State of Madras, (1970) 1 SCC 595 : 1970 SCC (Cri) 240] expressed the need for a preliminary inquiry before proceeding against public servants. 119. Therefore, in view of various counterclaims regarding registration or non-registration, what is necessary is only that the information given to the police must disclose the commission of a cognizable offence. In such a situation, registration of an FIR is mandatory. However, if no cognizable offence is made out in the information given, then the FIR need not be registered immediately and perhaps the police can conduct a sort of preliminary verification or inquiry for the limited purpose of ascertaining as to whether a cognizable offence has been committed. But, if the information given clearly mentions the commission of a cognizable offence, there is no other option but to register an FIR forthwith. Other considerations are not relevant at the stage of registration of FIR, such as, whether the information is falsely given, whether the information is genuine, whether the information is credible, etc. These are the issues that have to be verified during the investigation of the FIR. At the stage of registration of FIR, what is to be seen is merely whether the information given ex facie discloses the commission of a cognizable offence. If, after investigation, the information given is found to be false, there is always an option to prosecute the complainant for filing a false FIR.” The judgment provides the following conclusions: “120. In view of the aforesaid discussion, we hold: 120.1. The registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. 120.2. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. 120.5. The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. 120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under: The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.” The Constitution Bench thus held that a Preliminary Enquiry is not mandatory when the information received discloses the commission of a cognizable offence. Even when it is conducted, the scope of a Preliminary Enquiry is not to ascertain the veracity of the information, but only whether it reveals the commission of a cognizable offence. The need for a Preliminary Enquiry will depend on the facts and circumstances of each case. As an illustration, “corruption cases” fall in that category of cases where a Preliminary Enquiry “may be made”. The use of the expression “may be made” goes to emphasize that holding a preliminary enquiry is not mandatory. Dwelling on the CBI Manual, the Constitution Bench held that: (i) it is not a statute enacted by the legislature; and (ii) it is a compendium of administrative orders for the internal guidance of the CBI. 16 The judgment in Lalita Kumari (supra) was analyzed by a three Judge Bench of this Court in Yashwant Sinha (supra) where the Court refused to grant the relief of registration of an FIR based on information submitted by the appellant-informant. In his concurring opinion, Justice K M Joseph described that a barrier to granting the relief of registration of an FIR against a public figure would be the observations of this Court in Lalita Kumari (supra) noting that a Preliminary Enquiry may be desirable before doing so. Justice Joseph observed: “108. Para 120.6 [of Lalita Kumari] deals with the type of cases in which preliminary inquiry may be made. Corruption cases are one of the categories of cases where a preliminary 110. In para 117 of Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] , this Court referred to the decision in P. Sirajuddin v. State of Madras [P. Sirajuddin v. State of Madras, (1970) 1 SCC 595 : 1970 SCC (Cri) 240] and took the view that in the context of offences related to corruption in the said decision, the Court has expressed a need for a preliminary inquiry before proceeding against public servants. 112. In Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] , one of the contentions which was pressed before the Court was that in certain situations, preliminary inquiry is necessary. In this regard, attention of the Court was drawn to CBI Crime Manual… 114. The Constitution Bench in Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] , had before it, the CBI Crime Manual. It also considered the decision of this Court in P. Sirajuddin [P. Sirajuddin v. State of Madras, (1970) 1 SCC 595 : 1970 SCC (Cri) 240] which declared the necessity for preliminary inquiry in offences relating to corruption. Therefore, the petitioners may not be justified in approaching this Court seeking the relief of registration of an FIR and investigation on the same as such. This is for the reason that one of the exceptions where immediate registration of FIR may not be resorted to, would be a case pointing fingers at a public figure and raising the allegation of corruption. This Court also has permitted preliminary inquiry when there is delay, laches in initiating criminal prosecution, for example, over three months. A preliminary inquiry, it is to be noticed in para 120.7, is to be completed within seven days.” 17 The decision of a two Judge Bench in Managipet (supra) thereafter has noted that while the decision in Lalita Kumari (supra) held that a Preliminary Enquiry was desirable in cases of alleged corruption, that does not vest a right in the accused to demand a Preliminary Enquiry. Whether a Preliminary Enquiry is required or not will depends on the facts and circumstances of each case, and it cannot be said to be mandatory requirement without which a case cannot be registered against the accused in corruption cases. Justice Hemant Gupta held thus: “28. In Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] , the Court has laid down the cases in which a preliminary inquiry is warranted, more so, to avoid an abuse of the process of law rather than vesting any right in favour of an accused. Herein, the argument made was that if a police officer is doubtful about the veracity of an accusation, he has to conduct a preliminary inquiry and that in certain appropriate cases, it would be proper for such officer, on the receipt of a complaint of a cognizable offence, to satisfy himself that prima facie, the allegations levelled against the accused in 29. The Court concluded that the registration of an FIR is mandatory under Section 154 of the Code if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation… 30. It must be pointed out that this Court has not held that a preliminary inquiry is a must in all cases. A preliminary enquiry may be conducted pertaining to matrimonial disputes/family disputes, commercial offences, medical negligence cases, corruption cases, etc. The judgment of this Court in Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] does not state that proceedings cannot be initiated against an accused without conducting a preliminary 32…The scope and ambit of a preliminary inquiry being necessary before lodging an FIR would depend upon the facts of each case. There is no set format or manner in which a preliminary inquiry is to be conducted. The objective of the same is only to ensure that a criminal investigation process is not initiated on a frivolous and untenable complaint. That is the test laid down in Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : 33. In the present case, the FIR itself shows that the information collected is in respect of disproportionate assets of the accused officer. The purpose of a preliminary inquiry is to screen wholly frivolous and motivated complaints, in furtherance of acting fairly and objectively. Herein, relevant information was available with the informant in respect of prima facie allegations disclosing a cognizable offence. Therefore, once the officer recording the FIR is satisfied with such disclosure, he can proceed against the accused even without conducting any inquiry or by any other manner on the basis of the credible information received by him. It cannot be said that the FIR is liable to be quashed for the reason that the preliminary inquiry was not conducted. The same can only be done if upon a reading of the entirety of an FIR, no offence is disclosed. Reference in this regard, is made to a judgment of this Court in State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] wherein, this Court held inter alia that where the allegations made in the FIR or the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused and also where a criminal proceeding is manifestly attended with mala fides and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 34. Therefore, we hold that the preliminary inquiry warranted in Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] is not required to be mandatorily conducted in all corruption cases. It has been reiterated by this Court in multiple instances that the type of preliminary inquiry to be conducted will depend on the facts and circumstances of each case. There are no fixed parameters on which such inquiry can be said to be conducted. Therefore, any formal and informal collection of information disclosing a cognizable offence to the satisfaction of the person recording the FIR is sufficient.” 18 In Charansingh (supra), the two Judge bench was confronted with a challenge to a decision to hold a Preliminary Enquiry. The court adverted to the ACB Manual in Maharashtra and held that a statement provided by an individual in an “open inquiry” in the nature of a Preliminary Enquiry would not be confessional in nature and hence, the individual cannot refuse to appear in such an inquiry on that basis. Justice M R Shah, writing for the two Judge bench consisting also of one of “11. However, whether in a case of a complaint against a public servant regarding accumulating the assets disproportionate to his known sources of income, which can be said to be an offence under Section 13(1)(e) of the Prevention of Corruption Act, 1988, an enquiry at pre-FIR stage is permissible or not and/or it is desirable or not, if any decision is required, the same is governed by the decision of this Court in Lalita Kumari [Lalita Kumari v. State of U.P., 11.1. While considering the larger question, whether police is duty-bound to register an FIR and/or it is mandatory for registration of FIR on receipt of information disclosing a cognizable offence and whether it is mandatory or the police officer has option, discretion or latitude of conducting preliminary enquiry before registering FIR, this Court in Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] has observed that it is mandatory to register an FIR on receipt of information disclosing a cognizable offence and it is the general rule. However, while holding so, this Court has also considered the situations/cases in which preliminary enquiry is permissible/desirable. While holding that the registration of FIR is mandatory under Section 154, if the information discloses commission of a cognizable offence and no preliminary enquiry is permissible in such a situation and the same is the general rule and must be strictly complied with, this Court has carved out certain situations/cases in which the preliminary enquiry is held to be permissible/desirable before registering/lodging of an FIR. It is further observed that if the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary enquiry may be conducted to ascertain whether cognizable offence is disclosed or not. It is observed that as to what type and in which cases the preliminary enquiry is to be conducted will depend upon the facts and circumstances of each case. 14. In the context of offences relating to corruption, in para 117 in Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] , this Court also took note of the decision of this Court in P. Sirajuddin v. State of Madras [P. Sirajuddin v. State of Madras, (1970) 1 SCC 595 : 1970 SCC (Cri) 240] in which case this Court expressed the need for a preliminary enquiry before proceeding against public 15.1. Thus, an enquiry at pre-FIR stage is held to be permissible and not only permissible but desirable, more particularly in cases where the allegations are of misconduct of corrupt practice acquiring the assets/properties disproportionate to his known sources of income. After the enquiry/enquiry at pre-registration of FIR stage/preliminary enquiry, if, on the basis of the material collected during such enquiry, it is found that the complaint is vexatious and/or there is no substance at all in the complaint, the FIR shall not be lodged. However, if the material discloses prima facie a commission of the offence alleged, the FIR will be lodged and the criminal proceedings will be put in motion and the further investigation will be carried out in terms of the Code of Criminal Procedure. Therefore, such a preliminary enquiry would be permissible only to ascertain whether cognizable offence is disclosed or not and only thereafter FIR would be registered. Therefore, such a preliminary enquiry would be in the interest of the alleged accused also against whom the complaint is made. 15.2. Even as held by this Court in CBI v. Tapan Kumar Singh [CBI v. Tapan Kumar Singh, (2003) 6 SCC 175 : 2003 SCC (Cri) 1305] , a GD entry recording the information by the informant disclosing the commission of a cognizable offence can be treated as FIR in a given case and the police has the power and jurisdiction to investigate the same. However, in an appropriate case, such as allegations of misconduct of corrupt practice by a public servant, before lodging the first information report and further conducting the investigation, if the preliminary enquiry is conducted to ascertain whether a cognizable offence is disclosed or not, no fault can be found. Even at the stage of registering the FIR, what is required to be considered is whether the information given discloses the commission of a cognizable offence and the information so lodged must provide a basis for the police officer to suspect the commission of a cognizable offence. At this stage, it is enough if the police officer on the basis of the information given suspects the commission of a cognizable offence, and not that he must be convinced or satisfied that a cognizable offence has been committed. Despite the proposition of law laid down by this Court in a catena of decisions that at the stage of lodging the first information report, the police officer need not be satisfied or convinced that a cognizable offence has been committed, considering the observations made by this Court in P. Sirajuddin [P. Sirajuddin v. State of Madras, (1970) 1 SCC 595 : 1970 SCC (Cri) 240] and considering the observations by this Court in Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] before lodging the FIR, an enquiry is held and/or conducted after following the procedure as per Maharashtra State Anti- Corruption & Prohibition Intelligence Bureau Manual, it cannot be said that the same is illegal and/or the police officer, Anti-Corruption Bureau has no jurisdiction and/or authority and/or power at all to conduct such an enquiry at pre-registration of FIR stage.” 19 Hence, all these decisions do not mandate that a Preliminary Enquiry must be conducted before the registration of an FIR in corruption cases. An FIR will not stand vitiated because a Preliminary Enquiry has not been conducted. The decision in Managipet (supra) dealt specifically with a case of Disproportionate Assets. In that context, the judgment holds that where relevant information regarding prima facie allegations disclosing a cognizable offence is available, the officer recording the FIR can proceed against the accused on the basis of the information without conducting 20 This conclusion is also supported by the judgment of another Constitution Bench in K. Veeraswami (supra). The judgment was in context of Section 5(1)(e) of the old Prevention of Corruption Act 1947, which is similar to Section 13(1)(e) of the PC Act. It was argued that: (i) a public servant must be afforded an opportunity to explain the alleged Disproportionate Assets before an Investigating Officer; (ii) this must then be included and explained by the Investigating Officer while filing the charge sheet; and (iii) the failure to do so would render the charge sheet invalid. Rejecting this submission, the Constitution Bench held that doing so would elevate the Investigating Officer to the role of an enquiry officer or a Judge and that their role was limited only to collect material in order to ascertain whether the alleged offence has been committed by the public servant. In his opinion for himself and Justice Venkatachaliah, Justice K Jagannatha Shetty held thus: “75…since the legality of the charge-sheet has been impeached, we will deal with that contention also. Counsel laid great emphasis on the expression “for which he cannot satisfactorily account” used in clause (e) of Section 5(1) of the Act. He argued that that term means that the public servant is entitled to an opportunity before the Investigating Officer to explain the alleged disproportionality between assets and the known sources of income. The Investigating Officer is required to consider his explanation and the charge-sheet filed by him must contain such averment. The failure to mention that requirement would vitiate the charge-sheet and renders it invalid. This submission, if we may say so, completely overlooks the powers of the Investigating Officer. The Investigating Officer is only required to collect material to find out whether the offence alleged appears to have been committed. In the course of the investigation, he may examine the accused. He may seek his clarification and if necessary he may cross check with him about his known sources of income and assets possessed by him. Indeed, fair investigation requires as rightly stated by Mr A.D. Giri, learned Solicitor General, that the accused should not be kept in darkness. He should be taken into confidence if he is willing to cooperate. But to state that after collection of all material the Investigating Officer must give an opportunity to the accused and call upon him to account for the excess of the assets over the known sources of income and then decide whether the accounting is satisfactory or not, would be elevating the Investigating Officer to the position of an enquiry officer or a judge. The Investigating Officer is not holding an enquiry against the conduct of the public servant or determining the disputed issues regarding the disproportionality between the assets and the income of the accused. He just collects material from all sides and prepares a report which he files in the court as charge-sheet.” Therefore, since an accused public servant does not have a right to be afforded a chance to explain the alleged Disproportionate Assets to the Investigating Officer before the filing of a charge sheet, a similar right cannot be granted to the accused before the filing of an FIR by making a Preliminary Enquiry mandatory. 21 Having revisited the precedents of this Court, it is now necessary to consider the provisions of the CBI Manual. 22 In the judgment in Vineet Narain (supra), a three Judge Bench of this Court noted that the provisions of the CBI Manual must be followed by the officers of the CBI strictly, and disciplinary action should be taken against those who deviate from “58. As a result of the aforesaid discussion, we hereby direct I. Central Bureau of Investigation (CBI) and Central Vigilance 12. The CBI Manual based on statutory provisions of the CrPC provides essential guidelines for the CBI's functioning. It is imperative that the CBI adheres scrupulously to the provisions in the Manual in relation to its investigative functions, like raids, seizure and arrests. Any deviation from the established procedure should be viewed seriously and severe disciplinary action taken against the officials concerned.” 23 In the later judgment of a two judge Bench in Shashikant (supra), it was held that the CBI cannot be faulted for conducting a Preliminary Enquiry in accordance with the CBI Manual. Justice S B Sinha held: “9...It is also not disputed that the CBI Manual was made by the Central Government providing for detailed procedure as regards the mode and manner in which complaints against public servants are to be dealt with. 11. The CBI Manual provides for a preliminary inquiry. By reason thereof a distinction has been made between a preliminary inquiry and a regular case. A preliminary inquiry in terms of para 9.1 of the CBI Manual may be converted into a regular case as soon as sufficient material becomes available to show that prima facie there has been commission of a cognizable offence. 19. When an anonymous complaint is received, no investigating officer would initiate investigative process immediately thereupon. It may for good reasons carry out a preliminary enquiry to find out the truth or otherwise of the allegations contained therein. 25…The procedure laid down in the CBI Manual and in particular when it was required to inquire into the allegation of the corruption on the part of some public servants, recourse to the provisions of the Manual cannot be said to be unfair…” 24 In Ashok Kumar Aggarwal (supra), a two judge Bench observed that the provisions of the CBI Manual require strict compliance. Justice B S Chauhan held: “24…the CBI Manual, being based on statutory provisions of CrPC, provides for guidelines which require strict compliance. More so, in view of the fact that the ratio of the judgment of this Court in M.M. Rajendran [State of T.N. v. M.M. Rajendran, (1998) 9 SCC 268 : 1998 SCC (Cri) 1000] has been incorporated in the CBI Manual, the CBI Manual itself is the best authority to determine the issue at hand. The court has to read the relevant provisions of the CBI Manual alone and no judgment of this Court can be a better guiding factor under such a scenario.” 25 Hence, it is necessary to scrutinize the provisions of the CBI Manual. Chapter 8 of the CBI Manual is titled “Complaints and Source Information”. Para 8.1 notes that the CBI must register every complaint it receives, whatever be its source, before it starts verifying it. Para 8.6(ii) provides that verification can be undertaken for “[c]omplaints containing specific and definite allegations involving corruption or serious misconduct against public servants etc., falling within the ambit of CBI, which can be verified”. Paras 8.8-8.9 describe the process of verification where the officers are to examine records informally and discreetly without making written requisitions, and that this process ordinarily should not take more than three months but can take up to four months for complicated cases. Para 8.24 indicates that the officer entrusted with verification must submit a detailed report at the end of the process with specific recommendations, including whether a Preliminary Enquiry is required or if a Regular Case should be registered directly. 26 The FIR in the present case has been registered on the basis of “Source Information”. Both during the course of the hearing and in the affidavit filed by CBI, it has been explained that CBI found information and documents while investigating another case. Para 8.26 of the CBI Manual notes that every officer of the CBI can develop source information “regarding graft, misuse of official position, possession of disproportionate assets, fraud, embezzlement, serious economic offences, illegal trading in narcotics and psychotropic substances, counterfeiting of currency, smuggling of antiques, acts endangering wildlife and environment, cybercrimes, serious frauds of banking/financial institutions, smuggling of arms and ammunition, forgery of passports, etc. and other matters falling within the purview of CBI and verify the same to ascertain whether any prima facie material is available to undertake an open probe”. However, while doing so, they are to keep their superior officer ‘well informed’. Further, para 8.27 describes the process once such “source information” is developed and submitted to the superior officer. It reads as follows: “8.27. The source information once developed must be submitted in writing giving all available details with specific acts of omissions and commissions and copies of documents collected discreetly. The internal vigilance enquiries or departmental enquiry reports should normally not be used as basis for submitting the source information. The SP concerned after satisfying himself that there is prima facie material meriting action by CBI and further verification is likely to result in registration of a regular case, would order verification if it falls within his competence. In the cases which are within the competence of higher officers, he will forward his detailed comments to the DIG and obtain orders from superior officer competent to order registration. The verification of SIRs must begin only after the competent authority has approved its registration. At this stage a regular SIR number will be assigned to the SIR which will also be entered in the source information sub-module of Crimes Module with all other details.” The superior officer thus has to verify whether the developed “source information” prima facie would result in the registration of a case by the CBI; if yes, they then have to direct the verification of such information. Verification is governed by para 8.29, which speaks of a process similar to para 8.9. Para 8.32 provides that verification of “source information” shall be completed within three months and approval of the Competent Authority is required to carry out verification beyond that period. Similar to para 8.24, under para 8.33, the officer entrusted with verification has to submit a report with specific recommendations on whether a Preliminary Enquiry is required or if a Regular Case should be registered directly. 27 If a Preliminary Enquiry is necessary, it is covered by Chapter 9 of the CBI “9.1 When, a complaint is received or information is available which may, after verification as enjoined in this Manual, indicate serious misconduct on the part of a public servant but is not adequate to justify registration of a regular case under the provisions of Section 154 Cr.P.C., a Preliminary Enquiry may be registered after obtaining approval of the Competent Authority…When the verification of a complaint and source information reveals commission of a prima facie cognizable offence, a Regular Case is to be registered as is enjoined by law. A PE may be converted into RC as soon as sufficient material becomes available to show that prima facie there has been commission of a cognizable offence. When information available is adequate to indicate commission of cognizable offence or its discreet verification leads to similar conclusion, a Regular Case must be registered instead of a Preliminary Enquiry. It is, therefore, necessary that the SP must carefully analyze material available at the time of evaluating the verification report submitted by Verifying Officer so that registration of PE is not resorted to where a Regular Case can be registered…” Hence, two distinct principles emerge from the above: (i) a Preliminary Enquiry is registered when information (received from a complaint or “source information”) after verification indicates serious misconduct on part of a public servant but is not enough to justify the registration of a Regular Case; and (ii) when the information available or after its secret verification reveals the commission of a cognizable offence, a Regular Case has to be registered instead of a Preliminary Enquiry being resorted to necessarily. 28 Paras 9.7-9.8 note that once it is decided that a Preliminary Enquiry is required, a “PE Registration Report” is required to be prepared. Para 9.10 specifies that in cases of corruption, the Preliminary Enquiry should be limited to a scrutiny of records and talking to the bare minimum persons. Para 9.11 notes that the records should be collected under a proper receipt memo (unlike the process of verification) and that the statements herein should be collected in the same manner as they would be at the investigation stage. However, it is clarified that notices under Sections 91 and 160 of the CrPC shall not be resorted to during a Preliminary Enquiry. Paras 9.12-9.14 then discuss the procedure for converting a Preliminary Enquiry into a Regular Case, which has to happen the moment sufficient material is available which discloses the commission of a cognizable offence which could result in result in prosecution. Finally, para 9.16 provides that a Preliminary Enquiry must be completed within three months. 29 The precedents of this Court and the provisions of the CBI Manual make it abundantly clear that a Preliminary Enquiry is not mandatory in all cases which involve allegations of corruption. The decision of the Constitution Bench in Lalita Kumari (supra) holds that if the information received discloses the commission of a cognizable offence at the outset, no Preliminary Enquiry would be required. It also clarified that the scope of a Preliminary Enquiry is not to check the veracity of the information received, but only to scrutinize whether it discloses the commission of a cognizable offence. Similarly, para 9.1 of the CBI Manual notes that a Preliminary Enquiry is required only if the information (whether verified or unverified) does not disclose the commission of a cognizable offence. Even when a Preliminary Enquiry is initiated, it has to stop as soon as the officer ascertains that enough material has been collected which discloses the commission of a cognizable offence. A similar conclusion has been reached by a two Judge Bench in Managipet (supra) as well. Hence, the proposition that a Preliminary Enquiry is mandatory is plainly contrary to law, for it is not only contrary to the decision of the Constitution Bench in Lalita Kumari (supra) but would also tear apart the framework created by the CBI Manual. 30 This view is also supported by the decision of a three judge Bench of this Court in Union of India v. State of Maharashtra 56, which reversed the decision of a two Judge Bench in Subhash Kashinath Mahajan v. State of Maharashtra 57 which had, inter alia, held that “a preliminary enquiry may be conducted by the DSP concerned to find out whether the allegations make out a case under the [Scheduled Cases and Scheduled Tribes (Prevention of Atrocities) Act 1989 58] and that the allegations are not frivolous or motivated”. However, in the three Judge Bench decision, it was held that such a direction was impermissible since neither the CrPC nor the Atrocities Act mandate a preliminary inquiry. Justice Arun Mishra held: “68. The direction has also been issued that the DSP should conduct a preliminary inquiry to find out whether the allegations make out a case under the Atrocities Act, and that the allegations are not frivolous or motivated. In case a cognizable offence is made out, the FIR has to be outrightly registered, and no preliminary inquiry has to be made as held in Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] by a Constitution Bench. There is no such provision in the Code of Criminal Procedure for preliminary inquiry or under the SC/ST Act, as such direction is impermissible. Moreover, it is ordered to be conducted by the person of the rank of DSP. The number of DSP as per stand of the Union of India required for such an exercise of preliminary inquiry is not available. The direction would mean that even if a complaint made out a cognizable offence, an FIR would not be registered until the preliminary inquiry is held. In case a preliminary inquiry concludes that allegations are false or motivated, FIR is not to be registered, in such a case how a final report has to be filed in the Court. Direction 79.4 cannot survive for the other reasons as it puts the members of the Scheduled Castes and Scheduled Tribes in a disadvantageous position in the matter of procedure vis-à-vis to the complaints lodged by members of upper caste, for latter no such preliminary investigation is necessary. In that view of the matter it should not be necessary to hold preliminary inquiry for registering an offence under the 31 In a recent decision of a two Judge Bench in Vinod Dua v. Union of India and others 59, a direction of the Court was sought for requiring “that henceforth FIRs against persons belonging to the media with at least 10 years standing be not registered unless cleared by a committee…”. In refusing such a prayer, the Court observed that doing so would be akin to instituting a preliminary inquiry which was not mandated by the statutory framework. Justice U U Lalit, speaking for the Bench “101…the directions issued in Dr. Subhash Kashinath Mahajan regarding holding of a preliminary inquiry were not found consistent with the statutory framework. The second prayer made in the Writ Petition is asking for the constitution of the Committee completely outside the scope of the statutory framework. Similar such exercise of directing constitution of a Committee was found inconsistent with the statutory framework in the decisions discussed above…Any relief granted in terms of second prayer would certainly, in our view, amount to encroachment upon the field reserved for the legislature. We have, therefore, no hesitation in rejecting the prayer and dismissing the Writ Petition to that extent.” 32 In view of the above discussion, we hold that since the institution of a Preliminary Enquiry in cases of corruption is not made mandatory before the registration of an FIR under the CrPC, PC Act or even the CBI Manual, for this Court to issue a direction to that affect will be tantamount to stepping into the legislative domain. Hence, we hold that in case the information received by the CBI, through a complaint or a “source information” under Chapter 8, discloses the commission of a cognizable offence, it can directly register a Regular Case instead of conducting a Preliminary Enquiry, where the officer is satisfied that the information discloses the commission of a cognizable offence. 33 The above formulation does not take away from the value of conducting a Preliminary Enquiry in an appropriate case. This has been acknowledged by the decisions of this Court in P Sirajuddin (supra), Lalita Kumari (supra) and Charansingh (supra). Even in Vinod Dua (supra), this Court noted that “[a]s a matter of fact, the accepted norm - be it in the form of CBI Manual or like instruments is to insist on a preliminary inquiry”. The registration of a Regular Case can have disastrous consequences for the career of an officer, if the allegations ultimately turn out to be false. In a Preliminary Enquiry, the CBI is allowed access to documentary records and speak to persons just as they would in an investigation, which entails that information gathered can be used at the investigation stage as well. Hence, conducting a Preliminary Enquiry would not take away from the ultimate goal of prosecuting accused persons in a timely manner. However, we once again clarify that if the CBI chooses not to hold a Preliminary Enquiry, the accused cannot demand it as a matter of right. As clarified by this Court in Managipet (supra), the purpose of Lalita Kumari (supra) noting that a Preliminary Enquiry is valuable in corruption cases was not to vest a right in the accused but to ensure that there is no abuse of the process of law in order to target public servants. 34 Having answered the first question in the negative, that leaves the court with the second question of whether the FIR should be quashed in the present case. In order to answer this, we must first consider the scope of the review that a High Court exercises while entertaining a petition for quashing of an FIR under Article 226 of the Constitution or Section 482 of the CrPC. 35 The well settled test is whether, as they stand, the allegations contained in the FIR make out an offence. The locus classicus on this issue is the judgment of a two Judge Bench of this Court in Bhajan Lal (supra), where the Court provided an illustrative set of situations where the High Court may exercise its jurisdiction under Article 226 of the Constitution or Section 482 of the CrPC. Delivering the judgment, “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 36 In a more recent decision of a three Judge Bench of this Court in Neeharika Infrastructure (supra), Justice M R Shah, speaking for the Bench consisting also of one of us (Justice D Y Chandrachud), enunciated the following principles in relation to the Court exercising its jurisdiction under Article 226 of the Constitution or Section “80. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or “no coercive steps to be adopted”, during the pendency of the quashing petition under Section 482 Cr.P.C and/or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or “no coercive steps to be adopted” during the investigation or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under: i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable ii) Courts would not thwart any investigation into the iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the ‘rarest of rare cases (not to be confused with the formation in the context of death penalty). v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the vi) Criminal proceedings ought not to be scuttled at the initial vii) Quashing of a complaint/FIR should be an exception viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not ix) The functions of the judiciary and the police are x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to xii) The first information report is not an encyclopedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure; xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or “no coercive steps to be adopted” and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or “no coercive steps” either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order. xviii) Whenever an interim order is passed by the High Court of “no coercive steps to be adopted” within the aforesaid parameters, the High Court must clarify what does it mean by “no coercive steps to be adopted” as the term “no coercive steps to be adopted” can be said to be too vague and/or broad which can be misunderstood and/or misapplied.” 37 We must now assess whether the Single Judge of the Telangana High Court has, while quashing the FIR, decided within the parameters of the law described above. The High Court has taken note of the following documents filed by the respondents: (i) Income Tax Returns; (ii) disclosures by the first respondent to her Department under the CCS Rules; (iii) an affidavit filed by the second respondent under the RP Act and the Rules; (iv) a letter dated 14 March 2016 by the first respondent to Principal Chief Commissioner of Income Tax (CCA), Chennai in relation to the details of the construction of her house, and proof of it having been taken on the record by an Office Memorandum dated 12 June 2017; and (v) a letter dated 15 June 2016 from the Deputy Commissioner of Income Tax, Hyderabad noting the intimation received from the first respondent in relation to the sale of her property and value realized on 27 February 2016, and the intimation by the first respondent in regard to the investment undertaken by her. After noting these “There is absolutely no dispute that the above documents are true, in the sense they are filed with respective departments and available in the public domain. In view of the law referred above, the income assets and values of assets mentioned in those documents have to be treated as 'known source of income' for the purpose of Section 13 (1) (e) of the Prevention of Corruption Act.” There is a fundamental error on the part of the Single Judge in conflating a document which is in the public realm with the truth of its contents. 38 Thereafter, the High Court has gone on to note that in the counter-affidavit filed by the appellant before them, it has been admitted that the FIR has been prepared only on the basis of “source information” and without verifying the Income Tax Returns of the respondents. Hence, while highlighting the fault in the approach of the appellant in not conducting a Preliminary Enquiry, the High Court then holds it has to scrutinize the irregularities in the FIR. The Single Judge observed thus: “The source information itself states that the petitioners are in possession of disproportionate assets worth Rs.1,10,81,692/-. This Court is unable to comprehend how the source information would exactly reveal 'the amount of disproportionate assets. Even if it is there, the respondents ought to have confirmed it by calling explanation of the petitioners by holding a Preliminary Enquiry which is not done. This circumstance, as submitted by the learned Senior Counsel for the petitioners, would emphasize that the F.I.R. is registered in a hurry that too 'at Chennai, even without taking pains', to conduct preliminary enquiry to ascertain the truth and correctness of the figures of disproportionate assets mentioned in the F.I.R., because, the counter affidavit speaks that on the sole basis, of source information, directly F.I.R. is registered. This Court is unable to accept the correctness of the arguments advanced by the learned Standing Counsel for the respondent that the correctness of such information will be verified by giving 'opportunity' to the petitioners, during course of investigation. That means, the respondents are accepting their mistake in not conducting preliminary enquiry. It is in the light of the above legal and factual issues, this Court is inclined to dwell upon the scrutiny of the irregularities pointed out by the petitioners in the statements A to D of the F.I.R. to adjudicate upon the core issue whether the respondents have prima facie material to conclude that the petitioners are in possession of disproportionate assets.” 39 The High Court has then quashed the FIR by scrutinizing it in detail and pointing out five major grounds. First, it has dealt with the argument that there is a miscalculation of the respondents’ income in the FIR. It has held that while the FIR notes the income of the respondents in the check period to be Rs 1,39,61,014, their Income Tax Returns show it to be Rs 2,47,63,542. Hence, based on the respondents’ Income Tax Returns alone, the High Court has directed that the difference in income of Rs 1,08,02,528 be added to Statement-C in the FIR. Second, it deals with the respondents’ issue with Serial No 9 of Statement-C of the FIR, that while they sold a property for a sum of Rs 1 crore (in accordance with their Income Tax Returns for FY 2015-16), their income is only mentioned as Rs 72,50,000. The High Court has accepted this submission and rejected the appellant’s position that the sum of Rs 72,50,000 was recorded based on their “source information”. As such, it directed that a sum of Rs 25,00,000 be added to the respondents’ income under Statement-C of the FIR. Third, it notes the respondents’ objection to Serial No 26 of Statement-B of the FIR, where the same property has also been included as an asset of the respondents worth Rs 8 lakhs at the end of the check period. It has accepted the respondents’ submission and has directed that the amount of Rs 8 lakhs be struck off from Statement-B of the FIR. Fourth, it deals with the respondents’ objection that their assets at Serial Nos 6 and 7 of Statement-B of the FIR, which are the eastern and western portions of a house constructed by the first respondent, has been overvalued by an amount of Rs 85,78,200 (the FIR mentions its value to be Rs 5,15,50,000, while the respondents contend it to be Rs 4,14,21,800 based on a valuation report submitted by the first respondent and noted in the letter dated 14 March 2016 by the first respondent to Principal Chief Commissioner of Income Tax (CCA), Chennai). The High Court has then noted the appellant’s response in their counter-affidavit that the value of the property in the FIR was mentioned based on “source information”, and thereafter, they have obtained a valuation by the Central Public Works Department60 which valued it at Rs 6,48,85,300. This argument has then been summarily rejected by the High Court by noting that the appellant could not have determined the correct value of the property without conducting a Preliminary Enquiry before registering the FIR. Finally, in relation to this house, the respondents also objected to the value of the elevator in the house being mentioned as 10 lakhs separately in Serial No 31 of Statement-B of the FIR, when they believe it should have already been included within the valuation of the house constructed by them. The High Court held that the appellant could not properly explain why this was included separately and directed for it to be struck off from Statement-B of the FIR, relying upon the letter dated 14 March 2016 by the first respondent to Principal Chief Commissioner of Income Tax (CCA), Chennai in which the valuation report of the house was included. Thereafter, the High Court provided a summary of its conclusions in the form of the following table: I. The following values have to be included in the income of the petitioners shown in Statement-C. 1. Difference of Salary and arrears received 37,67,242 2. Difference of Income of 2nd petitioner 70,35,286 3. Difference of sale consideration received 27,50,000 Total amount of income to be added in 1,35,52,528 II. The following amounts have to be deducted from 1. Difference of value of the Building 85,78,200 2. Cost of Bengaluru property which was 8,00,000 3. Value of Oscan Elevator which is included 10,00,000 in the value of the construction of building Total amount of income to be added in 1,03.78,200 a) Total Income as modified (Statement-C) 6,20,29,158 b) Total value of assets possessed at the 5,86,72,866 It then provided ‘revised’ figures (as compared to the FIR) in another table: A Assets at the beginning of the check 1,35,26,066 B Assets at the end of the check period 5,86,72,866 C Assets during the check period (B-A) 4,51,46,800 D Income during the check period 6,20,29,158 E Expenditure during the check period 40,33,322 On the basis of this, the High Court concluded that no case of Disproportionate Assets against the respondents was made out since their revised income exceeded their expenditure and value of assets in the check period. 40 From the above, it becomes evident that the Single Judge of the Telangana High Court has acted completely beyond the settled parameters which govern the power to quash an FIR. The Single Judge has donned the role of a Chartered Accountant. The Single Judge has completely ignored that the Court was not at the stage of trial or considering an appeal against a verdict in a trial. The Single Judge has enquired into the material adduced by the respondents, compared it with the information provided by the CBI in the FIR and their counter-affidavit, and then pronounced a verdict on the merits of each individual allegation raised by the respondents largely relying upon the documents filed by them (by considering them to be ‘known sources of income’ within the meaning of Section 13(1)(e) of the PC Act). This exercised has been justified on account of the appellant not having conducted a Preliminary Enquiry and hence, not having addressed the respondents’ objections relying upon the documents adduced by them. The reasons provided by the Single Judge for entering into the merits of the dispute while quashing the FIR are specious, especially so considering our finding that the CBI need not hold a Preliminary Enquiry mandatorily. While exercising its jurisdiction under Article 226 of the Constitution to adjudicate on a petition seeking the quashing of an FIR, the High Court should have only considered whether the contents of the FIR – as they stand and on their face – prima facie make out a cognizable offence. However, it is evident that in a judgment spanning a hundred and seven pages (of the paper-book in this appeal) the Single Judge has conducted a mini-trial, overlooking binding principles which govern a plea for quashing an FIR. 41 The judgment of a two Judge Bench of this Court in Gunmala Sales (P) Ltd. v. Anu Mehta 61 makes it abundantly clear that the High Court does not conduct a mini-trial or a roving inquiry while exercising its powers under Section 482 of the “34.4. No restriction can be placed on the High Court's powers under Section 482 of the Code. The High Court always uses and must use this power sparingly and with great circumspection to prevent inter alia the abuse of the process of the court. There are no fixed formulae to be followed by the High Court in this regard and the exercise of this power depends upon the facts and circumstances of each case. The High Court at that stage does not conduct a mini trial or roving inquiry, but nothing prevents it from taking unimpeachable evidence or totally acceptable circumstances into account which may lead it to conclude that no trial is necessary qua a particular Director.” This principle also applies squarely to the exercise of powers by a High Court under Article 226 of the Constitution while considering a writ petition for quashing an FIR. Further, in numerous judgments of this Court it has been held that a court cannot conduct a mini-trial at the stage of framing of charges 62. Hence, doing so at the stage of considering a petition for quashing an FIR under Section 482 of the CrPC or Article 226 of the Constitution is obviously also impermissible. Therefore, we disapprove of the reasoning provided by the Telangana High Court in its impugned judgment dated 11 February 2020 for quashing the FIR. E.2 Whether the FIR is liable to be quashed in the present case 42 Now we must independently assess the FIR in order to adjudicate whether it should be quashed. The FIR in the present case discloses an offence under Section 13(1)(e) which, prior to its amendment through the Amending Act 16 of 2018 with effect from 26 July 2018, provided as follows: “13. Criminal misconduct by a public servant.—(1) A public servant is said to commit the offence of criminal (e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income. State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568, para 18; Bharat Parikh v. CBI, (2008) 10 SCC 109, para 19; Indu Jain v. State of M.P., (2008) 15 SCC 341, para 39; Asian Resurfacing of Road Agency (P) Ltd. v. Explanation.—For the purposes of this section, “known sources of income” means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant.” 43 The ambit of the provision has been explained by a two Judge Bench of this Court in Kedari Lal (supra). Justice U U Lalit held thus: “10. The expression “known sources of income” in Section 13(1)(e) of the Act has two elements, first, the income must be received from a lawful source and secondly, the receipt of such income must have been intimated in accordance with the provisions of law, rules or orders for the time being applicable to the public servant. In N. Ramakrishnaiah [N. Ramakrishnaiah v. State of A.P., (2008) 17 SCC 83 : (2010) 4 SCC (Cri) 454] , while dealing with the said expression, it was observed : (SCC pp. “17. ‘6. … Qua the public servant, whatever return he gets from his service, will be the primary item of his income. [Other income which can conceivably be] income qua the public servant, will be in the regular receipt from (a) his property, or (b) his investment.’ [Ed. : As observed in State of M.P. v. Awadh Kishore Gupta, (2004) 1 SCC 691 at p. 697 : 2004 SCC (Cri) 353, para 6.] ” The categories so enumerated are illustrative. Receipt by way of share in the partition of ancestral property or bequest under a will or advances from close relations would come within the expression “known sources of income” provided the second condition stands fulfilled that is to say, such receipts were duly intimated to the authorities as prescribed.” 44 In the present case, the respondents have filed before us their Income Tax Returns, statements under the CCS Rules, affidavits under the RP Act and all other document filed before the Telangana High Court as well. Based on these documents, the respondents have urged that the calculation of their income, expenditure and value of assets during the check period in the FIR is incorrect. In support of the proposition that these documents can be relied upon, they have pointed out the following observations in the judgment in Kedari Lal (supra): “12. In the instant case, every single amount received by the appellant has been proved on record through the testimony of the witnesses and is also supported by contemporaneous documents and intimations to the Government. It is not the case that the receipts so projected were bogus or was part of a calculated device. The fact that these amounts were actually received from the sources so named is not in dispute. Furthermore, these amounts are well reflected in the income tax returns filed by the appellant. 13. In similar circumstances, the acquisitions being reflected in income tax returns weighed with this Court in granting relief to the public servant. In M. Krishna Reddy v. State [M. Krishna Reddy v. State, (1992) 4 SCC 45 : 1992 SCC (Cri) 801] , it was observed in para 14 : (SCC p. 49) “14. … Therefore, on the face of these unassailable documents i.e. the wealth tax and income tax returns, we hold that the appellant is entitled to have a deduction of Rs 56,240 from the disproportionate assets of Rs 2,37,842.” 15. If the amounts in question, which were duly intimated and are reflected in the income tax return are thus deducted, the alleged disproportionate assets stand reduced to Rs 37,605, which is less than 10% of the income of the appellant. In Krishnanand v. State of M.P. [(1977) 1 SCC 816 : 1977 SCC (Cri) 190] and in M. Krishna Reddy [M. Krishna Reddy v. State, (1992) 4 SCC 45 : 1992 SCC (Cri) 801] , this Court had granted benefit to the public servants in similar circumstances. We respectfully follow the said decisions.” 45 Further, the respondents have also pointed out five infirmities in the FIR, the first four of which are based on the table reproduced in paragraph 10(ix)(b) of this judgment which notes that the value of the respondents’ Disproportionate Assets according to the FIR in the check period was Rs 1,10,81,692. First, it has been pointed out that in Serial No 6 and 7 of Statement-B of the FIR, the value of the first respondents’ constructed house is Rs 5,15,50,000, while its actual value (according to the disclosures made by the respondents in their Income Tax Returns) is Rs 4,29,71,800. It has been argued that the value in the FIR is incorrect, by relying upon letter dated 14 March 2016 submitted by the first respondent to Principal Chief Commissioner of Income Tax (CCA), Chennai where she has notified them of the construction of her house and attached a valuation report. According to this report, the total value of the house was Rs 4,14,21,800. To this, an amount of Rs 15,50,000 has been added to reach a final value of Rs 4,29,71,800, which is Rs 85,78,200 less than the value mentioned in the FIR. Further, while the appellant has defended the valuation in the FIR, based on a valuation conducted by the CPWD in 2018 (which valued the house at Rs 6,48,85,300), the respondents have argued that the CPWD valuation has been done after the FIR had been filed and cannot be used to defend the figures therein. Second, it has been argued that Serial No 31 of Statement-B of the FIR records that the respondents have an asset worth Rs 10 lakhs, which is an elevator inside the house mentioned in the assets. The argument against its inclusion is two-fold: (i) the value of the elevator would have already been included within the value of the house; and (ii) even the appellant’s rejoinder, at paragraph 16, admits this to be a mistake and notes that the elevator’s value is “subsumed in the construction cost of the house property of the Respondent and hence this value will be reduced”. Hence, on the basis of the first two submissions, the respondents argue that the value of the Disproportionate Assets in the FIR will have to be reduced by Rs 85,78,200 and Rs 10 lakhs, giving a new figure of Rs 25,03,492, which is less than 10 per cent of their income during the check period. The third and fourth infirmities have been argued collectively. The respondents have argued that Serial No 26 of Statement-B of the FIR includes a property in Bangalore having a value of Rs 8,00,000. However, Serial No 9 of Statement-C of the FIR adds Rs 72,50,000 to the respondents’ income as being derived from the sale of the same Bangalore property. Hence, it is urged that there is an internal contradiction in the FIR where the Bangalore property has been accounted for both as an asset of the respondents while also accounting for the income through its sale. Further, in relation to the income, it has been argued that the respondents’ Income Tax Returns show that they received Rs 1 crore from the sale of the Bangalore property, but this has been arbitrarily reduced by Rs 27,50,000. In its rejoinder, the appellant has justified both of these by contesting the acquisition of the Bangalore property on the ground that there was no valid title, and placing a serious doubt about the alleged sale and the very character of the transaction. According to the respondents, the value of the Disproportionate Assets in the FIR will stand reduced by Rs 8,00,000 and Rs 27,50,000, leading to an excess of respondents’ income of Rs 20,46,508 during the check period. Finally, it was also argued that the FIR has been filed solely relying upon “source information”, which consists of documents seized by the CBI during the investigation of another case, which is unrelated to the present one. Further, the respondents have also produced an order dated 28 February 2019 of the Principal Special Judge for CBI Cases (VIIIth Additional City Civil Court, Chennai) where this other case has been closed upon the submission of a closure report under Section 173 of the CrPC where it is noted that the FIR was closed due to “mistake of fact”. 46 On the other hand, it has been argued on behalf of the appellant that the documents relied upon by the respondents are not unimpeachable and have to be proved at the stage of trial. Hence, it was urged that the arguments made on the basis of these documents should not be accepted by this Court. The appellant has relied upon the judgment of a two Judge Bench of this Court in J. Jayalalitha (supra), where it has been held that documents such as Income Tax Returns cannot be relied upon as conclusive proof to show that the income is from a lawful source under the PC Act. Justice P C Ghose held thus: “191. Though considerable exchanges had been made in course of the arguments, centering around Section 43 of the Evidence Act, 1872, we are of the comprehension that those need not be expatiated in details. Suffice it to state that even assuming that the income tax returns, the proceedings in connection therewith and the decisions rendered therein are relevant and admissible in evidence as well, nothing as such, turns thereon definitively as those do not furnish any guarantee or authentication of the lawfulness of the source(s) of income, the pith of the charge levelled against the respondents. It is the plea of the defence that the income tax returns and orders, while proved by the accused persons had not been objected to by the prosecution and further it (prosecution) as well had called in evidence the income tax returns/orders and thus, it cannot object to the admissibility of the records produced by the defence. To reiterate, even if such returns and orders are admissible, the probative value would depend on the nature of the information furnished, the findings recorded in the orders and having a bearing on the charge levelled. In any view of the matter, however, such returns and orders would not ipso facto either conclusively prove or disprove the charge and can at best be pieces of evidence which have to be evaluated along with the other materials on record. Noticeably, none of the respondents has been examined on oath in the case in hand. Further, the income tax returns relied upon by the defence as well as the orders passed in the proceedings pertaining thereto have been filed/passed after the charge- sheet had been submitted. Significantly, there is a charge of conspiracy and abetment against the accused persons. In the overall perspective therefore neither the income tax returns nor the orders passed in the proceedings relatable thereto, either definitively attest the lawfulness of the sources of income of the accused persons or are of any avail to them to satisfactorily account the disproportionateness of their pecuniary resources and properties as mandated by Section 13(1)(e) of the Act. 200. In Vishwanath Chaturvedi (3) v. Union of India [Vishwanath Chaturvedi (3) v. Union of India, (2007) 4 SCC 380 : (2007) 2 SCC (Cri) 302] , a writ petition was filed under Article 32 of the Constitution of India seeking an appropriate writ for directing the Union of India to take appropriate action to prosecute R-2 to R-5 under the 1988 Act for having amassed assets disproportionate to the known sources of income by misusing their power and authority. The respondents were the then sitting Chief Minister of U.P. and his relatives. Having noticed that the basic issue was with regard to alleged investments and sources of such investments, Respondents 2 to 5 were ordered by this Court to file copies of income tax and wealth tax returns of the relevant assessment years which was done. It was pointed out on behalf of the petitioner that the net assets of the family though were Rs 9,22,72,000, as per the calculation made by the official valuer, the then value of the net assets came to be Rs 24 crores. It was pleaded on behalf of the respondents that income tax returns had already been filed and the matters were pending before the authorities concerned and all the payments were made by cheques, and thus the allegation levelled against them were baseless. It was observed that the minuteness of the details furnished by the parties and the income tax returns and assessment orders, sale deeds, etc. were necessary to be carefully looked into and analyzed only by an independent agency with the assistance of chartered accountants and other accredited engineers and valuers of the property. It was observed that the Income Tax Department was concerned only with the source of income and whether the tax was paid or not and, therefore, only an independent agency or CBI could, on court direction, determine the question of disproportionate assets. CBI was thus directed to conduct a preliminary enquiry into the assets of all the respondents and to take further action in the matter after scrutinizing as to whether a case was made out or not. 201. This decision is to emphasize that submission of income tax returns and the assessments orders passed thereon, would not constitute a foolproof defence against a charge of acquisition of assets disproportionate to the known lawful sources of income as contemplated under the PC Act and that further scrutiny/analysis thereof is imperative to determine as to whether the offence as contemplated by the PC Act is made out or not.” 47 In relation to the arguments on the alleged infirmities of the FIR, the contentions of the respondents have been refuted by the appellants by urging that: (i) the first submission of the respondents is based entirely upon the letter dated 14 March 2016 submitted by the first respondent to Principal Chief Commissioner of Income Tax (CCA), Chennai, which includes a valuation report. The value set out in in this report cannot be relied upon at this stage, especially when the CPWD Report values the house to have a much higher value; (ii) in relation to the third and fourth submissions, it is argued that the inclusion of the Bangalore property as an asset while including the money from its sale as income is fair since the very sale in itself is being disputed by the appellant. Hence, the veracity of the documents of sale is something that can only be determined at the stage of trial; and (iii) in relation to the final submission, it was argued that the documents which gave rise to the “source information” were seized during another case being investigated by the appellant where the first respondent was one of eight officers of the Income Tax department accused of taking benefits (such as hotel stays) from Chartered Accountants. These documents were seized during four raids conducted at the residences of the first respondent, and she herself was also examined in that case. It has been submitted that the documents which gave rise to the “source information” were seized during the raids conducted at the first respondent’s residences in Secunderabad on 27 June 2016 and in Jubilee Hills, Hyderabad on 8 July 2016. Hence, the fact that the other case during whose investigation these documents were seized has now been closed does not affect the FIR in the present case, since the charges against the first respondent are entirely different. 48 At the very outset, we must categorically hold that the documents which have been relied upon by the respondents cannot form the basis of quashing the FIR. The value and weight to be ascribed to the documents is a matter of trial. Both the parties have cited previous decisions of two Judge Benches of this Court in order to support their submissions. There is no clash between the decisions in Kedari Lal (supra) and J. Jayalalitha (supra) for two reasons: (i) the judgment in J. Jayalalitha (supra) notes that a document like the Income Tax Return, by itself, would not be definitive evidence in providing if the “source” of one’s income was lawful since the Income Tax Department is not responsible for investigating that, while the facts in the judgment in Kedari Lal (supra) were such that the “source” of the income was not in question at all and hence, the Income Tax Returns were relied upon conclusively; and (ii) in any case, the decision in Kedari Lal (supra) was delivered while considering a criminal appeal challenging a conviction under the PC Act, while the present matter is at the stage of quashing of an FIR. 49 In the present case, the appellant is challenging the very “source” of the respondents’ income and the questioning the assets acquired by them based on such income. Hence, at the stage of quashing of an FIR where the Court only has to ascertain whether the FIR prima facie makes out the commission of a cognizable offence, reliance on the documents produced by the respondents to quash the FIR would be contrary to fundamental principles of law. The High Court has gone far beyond the ambit of its jurisdiction by virtually conducting a trial in an effort to absolve the respondents. During the course of her submissions, Ms Bhati, learned ASG has stated on the instructions of the Investigating Officer, that during the course of the investigation about 140 witnesses have been examined and over 500 documents have been obtained. The investigation is stated to be at an advanced stage and is likely to conclude within a period of two to three months. At the same time, the Court has been assured by the ASG on the instructions of the Investigating Officer that before concluding the investigation, the first and second respondents will be called in order to enable them to tender their explanation in respect of the heads of Disproportionate Assets referred to in the FIR. 50 In relation to the other arguments raised by the respondents to point out infirmities in the FIR, adjudicating those at this stage will trench upon evidentiary proof at the trial. That is the mistake that the Telangana High Court committed, which this Court would be remiss to repeat. The only infirmity pointed out by the respondents which has been acceded to by the appellant is in relation to the addition of the value of the elevator separately when the whole house had already been valued. However, by itself, it only being a value of Rs 10 lakhs, this will not be enough to take away the whole basis of the Disproportionate Assets case against the respondents. Hence, at this stage, we cannot quash the FIR against the respondents and hold that the appellant’s investigation pursuant to it shall continue. 51 Before parting, we also note that extensive arguments had been raised before us by the respondents in relation to whether the appellant could even register the case against the respondents, since the State of Andhra Pradesh has withdrawn the general consent given to the appellant under Section 6 of the DSPE Act through an order dated 8 November 2018. This has been countered by the appellant by noting: (i) that the FIR has been registered in Chennai, and that the general consent by the State of Tamil Nadu under Section 6 of the DSPE Act still stands; (ii) that the first respondent is an employee of the Central Government; and (iii) that the second respondent is alleged to be an abettor under Section 109 of the IPC. Similarly, arguments have also been raised by both sides in relation to the jurisdiction of the Telangana High Court and whether the FIR could have been registered against the second respondent without the consent of the Speaker (since he is a sitting MLA). However, at this stage, we do not think it is necessary for us to adjudicate them and we are leaving these issues open without commenting upon their merits. 52 Therefore, in conclusion, we set aside the impugned judgment dated 11 February 2020 of the Single Judge of the Telangana High Court quashing the FIR and any proceedings pursuant to it. The appellant can continue with its investigation based upon the FIR. 53 The appeal is allowed and the impugned judgment of the Single Judge of the High Court for the State of Telangana is set aside. 54 Pending applications, if any, also stand disposed of.
"An FIR will not be made invalid just because a Preliminary Enquiry was not conducted," the Court stated in its decision. The Supreme Court has ruled that the Central Bureau of Investigation (CBI) does not have to conduct a preliminary enquiry in corruption cases. If the CBI receives information, from a complaint or other sources, that shows a serious crime (a "cognizable offence") has been committed, it can directly register a full investigation (a "Regular Case"). This can happen instead of doing a preliminary enquiry, as long as the officer is satisfied that the information reveals a serious crime. The Supreme Court has decided that a preliminary enquiry, which is an initial check, is not a must for the Central Bureau of Investigation (CBI) in cases involving corruption. The judges, including Justices DY Chandrachud, Vikram Nath, and BV Nagarathna, noted that if the CBI gets information, through a complaint or other "source information," that reveals a serious crime (a "cognizable offence"), they can open a full investigation (a "Regular Case") right away. This can happen instead of doing a preliminary enquiry, as long as the officer is confident that the information clearly shows a serious crime has been committed. The Court confirmed in its decision that an FIR (First Information Report) will not be made invalid just because a preliminary enquiry was not carried out. The court made it clear that if the CBI chooses not to hold a preliminary enquiry, the person accused of a crime cannot demand it as a legal right. In the specific case they were looking at, the Telangana High Court had canceled an FIR for a "disproportionate assets" case. This means the person was accused of having more wealth than their known income. The High Court had decided that the CBI should have done a preliminary enquiry first, as outlined in their own rules, the Central Bureau of Investigation (Crime) Manual 2005, before officially filing the FIR. When the case went to the Supreme Court, the CBI argued that its own manual doesn't require a preliminary enquiry before an FIR is filed; instead, its rules are just guidelines. However, the other side argued that a preliminary enquiry is crucial in corruption cases involving government workers, especially those with disproportionate assets. They said that rushing to file an FIR without a proper check could lead to false or weak complaints, which could seriously harm these officials' careers. So, the main question the court had to answer was: Does the CBI *have* to conduct a preliminary enquiry before filing an FIR in every single case where government workers are accused of corruption? The court looked at many previous rulings, including a major one called Lalita Kumari v. Govt. of UP. It noted that none of these rulings say that a preliminary enquiry *must* be done before an FIR is filed in corruption cases. The court repeated that an FIR isn't made invalid if a preliminary enquiry hasn't happened. It also explained that when the Lalita Kumari case mentioned that a preliminary enquiry can be useful in corruption cases, it wasn't giving the accused person a right to demand one. Instead, it was to make sure that the legal process isn't misused to unfairly target government workers. The court also reviewed the CBI's own manual and pointed out two things: First, a preliminary enquiry is started when information, after being checked, suggests a government worker has done something seriously wrong, but there isn't quite enough evidence to open a full investigation (a "Regular Case"). Second, if the information, even after a secret check, clearly shows a serious crime (a "cognizable offence") has been committed, then a full investigation (a "Regular Case") *must* be registered right away, rather than just doing a preliminary enquiry. Based on this, the court concluded: "32. After considering everything, we have decided. The law, including the CrPC, PC Act, and the CBI Manual, does not require a preliminary enquiry before an FIR is filed in corruption cases. If this Court ordered such an enquiry, it would be going beyond its power and acting like a body that makes laws. Therefore, we rule that if the CBI receives information, from a complaint or another source as outlined in Chapter 8, that clearly shows a serious crime (a "cognizable offence") has been committed, it can directly open a full investigation (a "Regular Case"). This can happen instead of conducting a preliminary enquiry, as long as the officer is convinced that the information truly reveals a serious crime." The court made it clear that even though it's not always required, this decision doesn't mean that a preliminary enquiry isn't valuable or useful in certain suitable cases. "33. Previous rulings by this Court, like those in P Sirajuddin, Lalita Kumari, and Charansingh, have all recognized this. Even in the Vinod Dua case, this Court pointed out that 'it's generally accepted practice – whether in the CBI Manual or similar guides – to push for a preliminary inquiry.' Starting a full investigation (a "Regular Case") can seriously harm an officer's career if the accusations later turn out to be false. During a preliminary enquiry, the CBI can look at documents and talk to people, just like in a full investigation. This means any information collected can still be used later if a full investigation starts. So, doing a preliminary enquiry doesn't prevent the main goal of bringing accused people to justice quickly. However, we want to make it clear again: if the CBI decides not to conduct a preliminary enquiry, the accused person cannot demand it as a legal right. As this Court explained in the Managipet case, when the Lalita Kumari case mentioned that a preliminary enquiry is valuable in corruption cases, it wasn't to give the accused a right, but to ensure the legal process isn't misused to unfairly target government workers," the court said. After reviewing the details of this specific case, the judges overturned the High Court's decision. They ruled that the CBI could go ahead with its investigation based on the FIR that had already been filed.
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P.I. Mr.Vikramsinh Kadam attached to Badlapur East P. Stn. present. Mr.S.V.Gavand, APP for the State in BA 2057/22. Mrs.A.A.Takalkar, APP for the State in BA 2058/22. 1. These two applications are filed by the same applicant Shri Sagar Vilas Tote who is charged for committing offences punishable under Sections 406 and 420 of the IPC read with Section 3 of the Maharashtra Protection of Interest of Depositors (In Financial Establishments) Act, 1999. Two distinct C.R.s came to be registered against him; C.R. I- 64/2018 was registered with Bazar Peth Police Station, whereas C.R. I- 11/2018 came to be registered with Badlapur East Police Station. He came to be arrested in both the C.R.s in the month of June 2018. On completion of investigation, charge-sheet bearing no. MPID No.01 of 2018 and MPID No.02 of 2018 was filed before the Additional Sessions 2. The prosecution alleged that as far as C.R. registered with Badlapur Police Station is concerned, the total investment with the assured interest has been worked out to be Rs.1,07,95,000/-. The learned counsel for the applicant makes a categorical statement that out of the amount received by him by way of investment from 15 investors, he has refunded an approximate amount of Rs.25,22,300/-. As far as the C.R. registered with Bazar Peth Police Station is concerned which involves 82 investors, the total amount as per the charge-sheet is worked out at Rs.4,73,23,260/-. The learned counsel for the applicant makes a categorical statement by referring to the statements of several victims which are part of the charge-sheet that he has cleared Rs.2,75,00,000/- in favour of some of the aggrieved investors the victims in the subject C.R. The investigation is complete and the charge-sheet is filed. 3. The learned counsel for the applicant seeks his release on two counts; firstly, on completion of investigation, further incarceration of the applicant is unnecessary and secondly, he seeks to derive benefit of Section 436-A of the Cr. P.C. which according to him, entitle him to be released on bail since on the date of his arrest, he has undergone imprisonment of four years and three months and the maximum penalty, which would be imposed upon him on he being convicted for the offences punishable under Sections 406 and 420 of the IPC read with Section 3 of the Maharashtra Protection of Interest of Depositors (In Financial Establishments) Act, 1999, would be of seven years. The learned counsel for the applicant placed reliance on the latest decision of the Apex Court in case of Satender Kumar Antil Vs. Central Bureau of Investigation & Anr. 1 as well as the decision in case of Bhim Singh Vs. Union of India2 and the decision in case of Hussainara Khatoon and Others (IV) Vs. Home Secretary, State of Bihar, Patna3. The learned APP Mr. Gavand and Ms. Takalkar have filed their respective affidavits and the relief of being released by taking recourse to Section 436-A of the Cr. P.c. is opposed on the grounds that the offence involved is serious as the applicant has defrauded several investors and the amount runs into crores of rupees and since no property is available for attachment by the police, he do not deserve his release on bail though admittedly he has undergone imprisonment of more than four years and three months and the maximum period of imprisonment which could be imposed upon him by way of punishment is seven years. 4. Section 436-A of the Cr. P.C. prescribe the maximum period for 1 Miscellaneous Application No. 1849 of 2021 which an under-trial prisoner can be detained and it has been inserted by Act 25 of 2005 with effect from 23 June, 2006. The provision prescribe the maximum period for which under trial prisoner can be detained and it read thus:- “436A- Maximum period for which an under trial prisoner can be detained.- Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties; Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties; Provided further that no such person shall in any case be detained during the period of investigation inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law.” 5. As early as in 1980, the right of under-trial prisoners was recognized by the Hon’ble Apex Court in a decision of Hussainara Khatoon and Others (IV) Vs. Home Secretary, State of Bihar, Patna (supra) and speedy trial was reckoned as an essential ingredient of ‘reasonable fair and just’ procedure guaranteed by Article 21 of the Constitution. Hon’ble Justice Shri P. N. Bhagwati (as he was then) underlined the constitutional mandate to provide speedy trial in the “"Not only those precedents but also reason and reflection require us to recognise that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both State and Federal quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public's interest in an orderly society. Similarly, there are few defendants charged with crime who fail to hire the best lawyers they can get to prepare and present their defences. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble idea cannot be realised if the poor man charged with crime has to face his accusers without a lawyer to assist him." 6. In case of Bhim Singh Vs. Union of India (supra), once again the principle was reiterated with its emphasis on Section 436A of the Cr.P.C. where jurisdictional Magistrate/Chief Judicial Magistrate/Sessions Judge were directed to hold one sitting in a week in each jail/prison for a limited time so that effect can be given to Section 436A of the Cr.P.C. Once again in the latest decision in case of Satender Kumar Antil Vs. Central Bureau of Investigation & Anr. (supra) while recognizing liberty to be one of the most essential requirements of the modern man, and quintessence of civilized existence, the highest Court of this country interpreted the said provision and reiterated its earlier decision in case of Bhim Singh Vs. Union of India (supra) while recognizing that the said provision is a substantive one, facilitating liberty, being the core intendment of Article 21. The Hon’ble Apex Court observed thus:- “46. Section 436A of the Code has been inserted by Act 25 of 2005. This provision has got a laudable object behind it, particularly from the point of view of granting bail. This provision draws the maximum period for which an undertrial prisoner can be detained. This period has to be reckoned with the custody of the accused during the investigation, inquiry and trial. We have already explained that the word ‘trial’ will have to be given an expanded meaning particularly when an appeal or admission is pending. Thus, in a case where an appeal is pending for a longer time, to bring it under Section 436A, the period of incarceration in all forms will have to be reckoned, and so also for the revision. 47. Under this provision, when a person has undergone detention for a period extending to one-half of the maximum period of imprisonment specified for that offense, he shall be released by the court on his personal bond with or without sureties. The word ‘shall’ clearly denotes the mandatory compliance of this provision. We do feel that there is not even a need for a bail application in a case of this nature particularly when the reasons for delay are not attributable against the accused. We are also conscious of the fact that while taking a decision the public prosecutor is to be heard, and the court, if it is of the view that there is a need for continued detention longer than one-half of the said period, has to do so. However, such an exercise of power is expected to be undertaken sparingly being an exception to the general rule. Once again, we have to reiterate that ‘bail is the rule and jail is an exception’ coupled with the principle governing the presumption of innocence. We have no doubt in our mind that this provision is a substantive one, facilitating liberty, being the core intendment of Article 21. The only caveat as furnished under the Explanation being the delay in the proceeding caused on account of the accused to be excluded. This court in Bhim Singh v. Union of India, (2015) 13 SCC 605, while dealing with the aforesaid provision, has directed that: “5. Having given our thoughtful consideration to the legislative policy engrafted in Section 436-A and large number of undertrial prisoners housed in the prisons, we are of the considered view that some order deserves to be passed by us so that the undertrial prisoners do not continue to be detained in prison beyond the maximum period provided under Section 436-A. 6. We, accordingly, direct that jurisdictional Magistrate/ Chief Judicial Magistrate/Sessions Judge shall hold one sitting in a week in each jail/prison for two months commencing from 1-10-2014 for the purposes of effective implementation of Section 436-A of the Code of Criminal Procedure. In its sittings in jail, the above judicial officers shall identify the undertrial prisoners who have completed half period of the maximum period or maximum period of imprisonment provided for the said offence under the law and after complying with the procedure prescribed under Section 436-A pass an appropriate order in jail itself for release of such undertrial prisoners who fulfill the requirement of Section 436-A for their release immediately. Such jurisdictional Magistrate/Chief Judicial Magistrate/ Sessions Judge shall submit the report of each of such sittings to the Registrar General of the High Court and at the end of two months, the Registrar General of each High Court shall submit the report to the Secretary General of this Court without any delay. To facilitate compliance with the above order, we direct the Jail Superintendent of each jail/prison to provide all necessary facilities for holding the court sitting by the above judicial officers. A copy of this order shall be sent to the Registrar General of each High Court, who in turn will communicate the copy of the order to all Sessions Judges within his State for necessary compliance.” Their Lordships of the Apex Court emphasis that the directions issued by the Court if not complied fully, are expected to be complied with in order to prevent the unnecessary incarceration of under-trials, and to uphold the inviolable principle of presumption of innocence until proven guilty. 7. In the light of the aforesaid pronouncement as above, which has enunciated the scope of Section 436A of the Cr.P.C., I do not think that the seriousness of the accusation would deny him the benefit flowing from the said section, when his case squarely falls within sub-section (1) of Section 436A, on having undergone more than half of the period of maximum imprisonment, which would be imposed upon him by way of penalty, assuming that he will be convicted for the offences with which he is charged. The applicant deserves his release on bail. Hence the (a) Applications are allowed. (b) Applicant - Sagar Vilas Tote shall be released on bail in connection with distinct C.R.s i.e. (i) C.R. I-64/2018 registered with Bazar Peth Police Station and (ii) C.R. I-11/2018 registered with Badlapur East Police Station on furnishing P.R. Bond to the extent of Rs.15,000/- each with one or two sureties in the like amount. (c) The applicant shall mark his attendance before the concerned police station on first Monday of every trimester. (d) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing the facts to Court or any Police Officer. The applicant shall not tamper with evidence. (e) On being released on bail, the applicant shall furnish his contact number and residential address to the Investigating Officer and shall keep him updated, in case there is any change.
The Bombay High Court allowed a businessman to be released from jail temporarily. He was accused of tricking investors out of millions of rupees, breaking a law known as the Maharashtra Protection of Interest of Depositors Act of 1999. The court decided that even though his crime was serious, it wasn't a reason to prevent him from using a specific rule in criminal law, Section 436-A of the Criminal Procedure Code (CrPC). This rule states that someone accused of a crime can be let out on bail if they have already spent half of the longest possible prison sentence they could receive for that crime. This only changes if there are special reasons, written down, to keep them in jail. The judges did not agree with the arguments made by the prosecution, who are the lawyers trying to convict the businessman. The prosecution claimed the businessman had committed a serious crime by tricking people out of millions of rupees. They also pointed out that the police had not found any of his property that could be taken to repay the victims, and for these reasons, he should not get bail. Judge Bharati Dangre referred to a Supreme Court decision from a case called Satender Kumar Antil vs. Central Bureau of Investigation. She explained that based on this earlier ruling, she did not believe the serious nature of the charges should prevent the businessman from benefiting from Section 436A. His situation clearly met the requirements of this rule because he had already served more than half of the maximum possible time he could be jailed. Therefore, she concluded that he deserved to be released on bail. In this specific case, the businessman had already spent over four years in jail. The longest possible prison sentence he could receive for his alleged crimes was seven years. He was accused of breaking Section 406 (which is about criminal breach of trust) and Section 420 (which is about cheating) of the Indian Penal Code. These charges were combined with Section 3 of the Maharashtra Protection of Interest of Depositors Act of 1999. The police first recorded this crime at the Badlapur Police station in 2018. The prosecution claimed that the total money invested by victims, along with the promised interest, amounted to Rs. 1,07,95,000. This is roughly 1.08 'crore' rupees, with one crore being ten million. However, the businessman's lawyer, Akshay Bafna, stated that his client had already paid back Rs. 25,22,300, which is about 25 'lakh' rupees, with one lakh being one hundred thousand. In a separate police report, it was stated that out of more than Rs. 4.73 crore promised to 82 investors, Rs. 2.75 crore had been returned. To show that Section 436-A of the CrPC should apply, the businessman's lawyer, Bafna, referred to important decisions from earlier court cases. These included the cases of Satender Kumar Antil vs. Central Bureau of Investigation, Bhim Singh vs. Union of India, and Hussainara Khatoon and Others (IV) vs. Home Secretary, State of Bihar, Patna. Judge Dangre agreed with Bafna's arguments and allowed the businessman to be released on bail.
P.I. Mr.Vikramsinh Kadam attached to Badlapur East P. Stn. present. Mr.S.V.Gavand, APP for the State in BA 2057/22. Mrs.A.A.Takalkar, APP for the State in BA 2058/22. 1. These two applications are filed by the same applicant Shri Sagar Vilas Tote who is charged for committing offences punishable under Sections 406 and 420 of the IPC read with Section 3 of the Maharashtra Protection of Interest of Depositors (In Financial Establishments) Act, 1999. Two distinct C.R.s came to be registered against him; C.R. I- 64/2018 was registered with Bazar Peth Police Station, whereas C.R. I- 11/2018 came to be registered with Badlapur East Police Station. He came to be arrested in both the C.R.s in the month of June 2018. On completion of investigation, charge-sheet bearing no. MPID No.01 of 2018 and MPID No.02 of 2018 was filed before the Additional Sessions 2. The prosecution alleged that as far as C.R. registered with Badlapur Police Station is concerned, the total investment with the assured interest has been worked out to be Rs.1,07,95,000/-. The learned counsel for the applicant makes a categorical statement that out of the amount received by him by way of investment from 15 investors, he has refunded an approximate amount of Rs.25,22,300/-. As far as the C.R. registered with Bazar Peth Police Station is concerned which involves 82 investors, the total amount as per the charge-sheet is worked out at Rs.4,73,23,260/-. The learned counsel for the applicant makes a categorical statement by referring to the statements of several victims which are part of the charge-sheet that he has cleared Rs.2,75,00,000/- in favour of some of the aggrieved investors the victims in the subject C.R. The investigation is complete and the charge-sheet is filed. 3. The learned counsel for the applicant seeks his release on two counts; firstly, on completion of investigation, further incarceration of the applicant is unnecessary and secondly, he seeks to derive benefit of Section 436-A of the Cr. P.C. which according to him, entitle him to be released on bail since on the date of his arrest, he has undergone imprisonment of four years and three months and the maximum penalty, which would be imposed upon him on he being convicted for the offences punishable under Sections 406 and 420 of the IPC read with Section 3 of the Maharashtra Protection of Interest of Depositors (In Financial Establishments) Act, 1999, would be of seven years. The learned counsel for the applicant placed reliance on the latest decision of the Apex Court in case of Satender Kumar Antil Vs. Central Bureau of Investigation & Anr. 1 as well as the decision in case of Bhim Singh Vs. Union of India2 and the decision in case of Hussainara Khatoon and Others (IV) Vs. Home Secretary, State of Bihar, Patna3. The learned APP Mr. Gavand and Ms. Takalkar have filed their respective affidavits and the relief of being released by taking recourse to Section 436-A of the Cr. P.c. is opposed on the grounds that the offence involved is serious as the applicant has defrauded several investors and the amount runs into crores of rupees and since no property is available for attachment by the police, he do not deserve his release on bail though admittedly he has undergone imprisonment of more than four years and three months and the maximum period of imprisonment which could be imposed upon him by way of punishment is seven years. 4. Section 436-A of the Cr. P.C. prescribe the maximum period for 1 Miscellaneous Application No. 1849 of 2021 which an under-trial prisoner can be detained and it has been inserted by Act 25 of 2005 with effect from 23 June, 2006. The provision prescribe the maximum period for which under trial prisoner can be detained and it read thus:- “436A- Maximum period for which an under trial prisoner can be detained.- Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties; Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties; Provided further that no such person shall in any case be detained during the period of investigation inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law.” 5. As early as in 1980, the right of under-trial prisoners was recognized by the Hon’ble Apex Court in a decision of Hussainara Khatoon and Others (IV) Vs. Home Secretary, State of Bihar, Patna (supra) and speedy trial was reckoned as an essential ingredient of ‘reasonable fair and just’ procedure guaranteed by Article 21 of the Constitution. Hon’ble Justice Shri P. N. Bhagwati (as he was then) underlined the constitutional mandate to provide speedy trial in the “"Not only those precedents but also reason and reflection require us to recognise that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both State and Federal quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public's interest in an orderly society. Similarly, there are few defendants charged with crime who fail to hire the best lawyers they can get to prepare and present their defences. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble idea cannot be realised if the poor man charged with crime has to face his accusers without a lawyer to assist him." 6. In case of Bhim Singh Vs. Union of India (supra), once again the principle was reiterated with its emphasis on Section 436A of the Cr.P.C. where jurisdictional Magistrate/Chief Judicial Magistrate/Sessions Judge were directed to hold one sitting in a week in each jail/prison for a limited time so that effect can be given to Section 436A of the Cr.P.C. Once again in the latest decision in case of Satender Kumar Antil Vs. Central Bureau of Investigation & Anr. (supra) while recognizing liberty to be one of the most essential requirements of the modern man, and quintessence of civilized existence, the highest Court of this country interpreted the said provision and reiterated its earlier decision in case of Bhim Singh Vs. Union of India (supra) while recognizing that the said provision is a substantive one, facilitating liberty, being the core intendment of Article 21. The Hon’ble Apex Court observed thus:- “46. Section 436A of the Code has been inserted by Act 25 of 2005. This provision has got a laudable object behind it, particularly from the point of view of granting bail. This provision draws the maximum period for which an undertrial prisoner can be detained. This period has to be reckoned with the custody of the accused during the investigation, inquiry and trial. We have already explained that the word ‘trial’ will have to be given an expanded meaning particularly when an appeal or admission is pending. Thus, in a case where an appeal is pending for a longer time, to bring it under Section 436A, the period of incarceration in all forms will have to be reckoned, and so also for the revision. 47. Under this provision, when a person has undergone detention for a period extending to one-half of the maximum period of imprisonment specified for that offense, he shall be released by the court on his personal bond with or without sureties. The word ‘shall’ clearly denotes the mandatory compliance of this provision. We do feel that there is not even a need for a bail application in a case of this nature particularly when the reasons for delay are not attributable against the accused. We are also conscious of the fact that while taking a decision the public prosecutor is to be heard, and the court, if it is of the view that there is a need for continued detention longer than one-half of the said period, has to do so. However, such an exercise of power is expected to be undertaken sparingly being an exception to the general rule. Once again, we have to reiterate that ‘bail is the rule and jail is an exception’ coupled with the principle governing the presumption of innocence. We have no doubt in our mind that this provision is a substantive one, facilitating liberty, being the core intendment of Article 21. The only caveat as furnished under the Explanation being the delay in the proceeding caused on account of the accused to be excluded. This court in Bhim Singh v. Union of India, (2015) 13 SCC 605, while dealing with the aforesaid provision, has directed that: “5. Having given our thoughtful consideration to the legislative policy engrafted in Section 436-A and large number of undertrial prisoners housed in the prisons, we are of the considered view that some order deserves to be passed by us so that the undertrial prisoners do not continue to be detained in prison beyond the maximum period provided under Section 436-A. 6. We, accordingly, direct that jurisdictional Magistrate/ Chief Judicial Magistrate/Sessions Judge shall hold one sitting in a week in each jail/prison for two months commencing from 1-10-2014 for the purposes of effective implementation of Section 436-A of the Code of Criminal Procedure. In its sittings in jail, the above judicial officers shall identify the undertrial prisoners who have completed half period of the maximum period or maximum period of imprisonment provided for the said offence under the law and after complying with the procedure prescribed under Section 436-A pass an appropriate order in jail itself for release of such undertrial prisoners who fulfill the requirement of Section 436-A for their release immediately. Such jurisdictional Magistrate/Chief Judicial Magistrate/ Sessions Judge shall submit the report of each of such sittings to the Registrar General of the High Court and at the end of two months, the Registrar General of each High Court shall submit the report to the Secretary General of this Court without any delay. To facilitate compliance with the above order, we direct the Jail Superintendent of each jail/prison to provide all necessary facilities for holding the court sitting by the above judicial officers. A copy of this order shall be sent to the Registrar General of each High Court, who in turn will communicate the copy of the order to all Sessions Judges within his State for necessary compliance.” Their Lordships of the Apex Court emphasis that the directions issued by the Court if not complied fully, are expected to be complied with in order to prevent the unnecessary incarceration of under-trials, and to uphold the inviolable principle of presumption of innocence until proven guilty. 7. In the light of the aforesaid pronouncement as above, which has enunciated the scope of Section 436A of the Cr.P.C., I do not think that the seriousness of the accusation would deny him the benefit flowing from the said section, when his case squarely falls within sub-section (1) of Section 436A, on having undergone more than half of the period of maximum imprisonment, which would be imposed upon him by way of penalty, assuming that he will be convicted for the offences with which he is charged. The applicant deserves his release on bail. Hence the (a) Applications are allowed. (b) Applicant - Sagar Vilas Tote shall be released on bail in connection with distinct C.R.s i.e. (i) C.R. I-64/2018 registered with Bazar Peth Police Station and (ii) C.R. I-11/2018 registered with Badlapur East Police Station on furnishing P.R. Bond to the extent of Rs.15,000/- each with one or two sureties in the like amount. (c) The applicant shall mark his attendance before the concerned police station on first Monday of every trimester. (d) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing the facts to Court or any Police Officer. The applicant shall not tamper with evidence. (e) On being released on bail, the applicant shall furnish his contact number and residential address to the Investigating Officer and shall keep him updated, in case there is any change.
The Bombay High Court allowed a businessman to be released from jail temporarily. He was accused of tricking investors out of millions of rupees, breaking a law known as the Maharashtra Protection of Interest of Depositors Act of 1999. The court decided that even though his crime was serious, it wasn't a reason to prevent him from using a specific rule in criminal law, Section 436-A of the Criminal Procedure Code (CrPC). This rule states that someone accused of a crime can be let out on bail if they have already spent half of the longest possible prison sentence they could receive for that crime. This only changes if there are special reasons, written down, to keep them in jail. The judges did not agree with the arguments made by the prosecution, who are the lawyers trying to convict the businessman. The prosecution claimed the businessman had committed a serious crime by tricking people out of millions of rupees. They also pointed out that the police had not found any of his property that could be taken to repay the victims, and for these reasons, he should not get bail. Judge Bharati Dangre referred to a Supreme Court decision from a case called Satender Kumar Antil vs. Central Bureau of Investigation. She explained that based on this earlier ruling, she did not believe the serious nature of the charges should prevent the businessman from benefiting from Section 436A. His situation clearly met the requirements of this rule because he had already served more than half of the maximum possible time he could be jailed. Therefore, she concluded that he deserved to be released on bail. In this specific case, the businessman had already spent over four years in jail. The longest possible prison sentence he could receive for his alleged crimes was seven years. He was accused of breaking Section 406 (which is about criminal breach of trust) and Section 420 (which is about cheating) of the Indian Penal Code. These charges were combined with Section 3 of the Maharashtra Protection of Interest of Depositors Act of 1999. The police first recorded this crime at the Badlapur Police station in 2018. The prosecution claimed that the total money invested by victims, along with the promised interest, amounted to Rs. 1,07,95,000. This is roughly 1.08 'crore' rupees, with one crore being ten million. However, the businessman's lawyer, Akshay Bafna, stated that his client had already paid back Rs. 25,22,300, which is about 25 'lakh' rupees, with one lakh being one hundred thousand. In a separate police report, it was stated that out of more than Rs. 4.73 crore promised to 82 investors, Rs. 2.75 crore had been returned. To show that Section 436-A of the CrPC should apply, the businessman's lawyer, Bafna, referred to important decisions from earlier court cases. These included the cases of Satender Kumar Antil vs. Central Bureau of Investigation, Bhim Singh vs. Union of India, and Hussainara Khatoon and Others (IV) vs. Home Secretary, State of Bihar, Patna. Judge Dangre agreed with Bafna's arguments and allowed the businessman to be released on bail.
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