Category: Legal Articles

Registry Is Part And Parcel of The Judicial System: Supreme Court

Posted on | by Sanjeev Sirohi | Leave a Comment on Registry Is Part And Parcel of The Judicial System: Supreme Court

In a fresh, welcome and interesting development, the Supreme Court has just recently on July 6, 2020 in a latest, landmark and extremely laudable judgment titled Reepak Kansal vs. Secretary-General, Supreme Court Of India & Ors. in Writ Petition (Civil) No. 541 of 2020 has taken a stern view of the increasing tendency to blame the Registry for listing some cases more swiftly as compared to others. Justice Arun Mishra who authored this notable judgment for himself and Justice S Abdul Nazeer observed that the Registry which is part and parcel of the judicial system, is blamed unnecessarily for no good reasons. Very rightly so!

To start with, the ball is set rolling in para 1 of this noteworthy judgment wherein it is observed that, “The petitioner, who is an Advocate practicing in this Court, has filed the writ petition under Article 32 of the Constitution of India against various officers of the Registry of this Court and the Union of India. Prayer has been made to issue an appropriate Writ, Order or Direction in the nature of Mandamus directing the respondents not to give preference to the cases filed by influential lawyers/petitioners, law firms, etc. Prayer has been made to direct the respondents to give equal treatment to the cases filed by ordinary lawyers/petitioners and not to point out unnecessary defects, refund the excess court fee and other charges, and not to tag the cases without order or direction of the Court with other cases. A prayer has also been made to direct the Secretary General of this Court to take action against the erring officers for their involvement in the listing, clearing and bench hunting.”

While mentioning the chief grouse of the petitioner, the Bench notes in para 2 that, “It is averred in the petition that equal treatment has not been given to the ordinary lawyers/litigants. They favour some law firms or Advocates for reasons best known to them.”

While mentioning of the first instance, it is then unfolded in para 3 that, “The petitioner’s first instance is that a Writ Petition (Civil) D. No. 10951 of 2020 was filed by him on 16.4.2020. The Registry pointed out three defects, i.e. (1) Court Fee of Rs 530 was not paid, (2) Documents to be placed as per index, and (3) Details given in index were incomplete and annexures were not filed, matter to be rechecked. The petitioner had clarified vide email dated 18.4.2020 that he had paid the court fee of Rs. 730/- and there was no annexure with the petition. However, the petitioner was forced to pay more court fees to get the matter listed. Despite the letter of urgency, the Registry failed to register and list the writ petition. The petitioner requested the Secretary, Supreme Court Bar Association, about not listing the writ petition. On 27.4.2020, the writ petition was listed before the Court.”

While mentioning of the second instance, it is then narrated in para 4 that, “The second instance given by the petitioner is that a Writ Petition (Civil) D. No. 11236 of 2020 was filed on 12.5.2020, which has not been listed by the Registry till today. He was informed that there were no defects in the writ petition, but a copy of the writ petition was missing. After that, no update was given by the Registry.”

Now coming to the third instance, it is then mentioned in para 5 that, “The third instance given is about Writ Petition (Civil) No. 522 of 2020 (Diary No. 522 of 2020) filed by the petitioner on 20.05.2020. The Dealing Assistant pointed out defects on 26.5.2020. The defects were pointed out by the Dealing Assistant after six days of filing, though the application for urgency was filed in the petition. The following note was made by the Registry:

“MATTER NEEDS TO BE RECHECK AS WHOLE INDEX IS BLANK, PETITION, AFFIDAVIT, VAKALATNAMA, MEMO OF APPEARANCE AND APPLICATION ALL ARE UNSIGNED AND DEFICIT COURT FEE ETC.”

The petitioner clarified that the signed documents were already uploaded. The matter was urgent, and he had uploaded them again along with signed documents on 26.5.2020. Again the defects were pointed out on 29.5.2020 by the Dealing Assistant to the following effect:

“APPLICATION IS NOT PROPER AS HEADING NOT TALLY WITH INDEX AND BE SPECIFIC ABOUT THE SUBJECT AND PRAYER OF APPLICATION.”

The petitioner cured the defects on 29.5.2020. After that, the Dealing Assistant did not recheck the matter. On 2.6.2020, the petitioner made a call and requested the Branch Officer concerned to direct the Dealing Assistant to recheck the matter. On 2.6.2020, the matter was rechecked and numbered as Diary No. 11552 of 2020. The case was verified on 6.6.2020 and listed for 6.7.2020 (computer-generated) which would make the case infructuous. The application for urgency was not considered. The petitioner was informed that the case was likely to be listed on 6.7.2020. He sent an email about the urgency. The Registry was not willing to list the Diary No. 11552 of 2020 despite the application for urgency. Hence, the writ petition has been filed.”

Truth be told, para 6 then states that, “It is averred that on 23.4.2020, W.P. Diary No. 11006 of 2020 titled as Arnab Ranjan Goswami v. UOI was filed at 8.07 p.m. without annexure. The Registry had chosen not to point out any defects, and a special supplementary list was uploaded on the same day. The category was not specified in the notification to be heard during a nationwide lockdown. No procedure was followed by the Registry for urgent hearing during the lockdown. The petitioner made a complaint to Secretary-General against illegal activities of the Registry but the same is without response.”

To put things in perspective, it is then illustrated in para 9 stating that, “Although defects were noted, Writ Petition (C) Diary No. 10951 of 2020 was listed, heard and finally decided on 27.4.2020. It was filed on 17.4.2020. 18th and 19th April 2020 were the holidays. There were only five working days, and during the nationwide lockdown, the court functioning was minimal. The case was mentioned in the cause list on 26.4.2020 to be listed on 27.4.2020. Thus, it could not be said that there was delay much less inordinate one by the officials of the Registry in listing the matter mentioned above.”

While continuing in the same vein, it is then revealed in para 10 that, “Concerning the second instance, i.e., Diary No. 11236 of 2020, which was filed by petitioner on 9.5.2020, the Registry has noted several defects on 14.5.2020. The petitioner is still lying with defects.”

Not stopping here, it is then further revealed in para 11 that, “Concerning the third instance i.e., Writ Petition No. 522 of 2020 (D. No. 11552 of 2020), the same was filed on 20.5.2020. Again, a defective petition and defects were pointed out by the Registry on 26.5.2020 that the whole index was blank. Petition, Affidavit, Vakalatnama, Memo of Appearance, and Application were all unsigned with a deficit court fee, etc. The petitioner removed the defects. However, other defects were caused, such as the application filed was not proper as heading did not tally with the index, and specific subjects and prayers were not mentioned. The defects were re-cured, and the petition was re-filed on 3.6.2020. The matter was processed and listed on 9.6.2020 and was heard and dismissed on 12.6.2020 as other matters on the similar issues were pending as such the matter was not considered to be necessary. The petitioner has not disclosed about listing of the case for 12.6.2020, and its decision and averred that the computer-generated date was 6.7.2020. The Registry did not follow the computer-generated date, and the case was listed for 12.6.2020 on which it was dismissed. The petitioner himself was responsible for 12-13 days of delay in removing the defects.”

While dwelling on the out of turn hearing given to eminent journalist Arnab Goswami, it is then pointed out in para 12 that, “As to case of Arnab Goswami, it was listed urgently in view of order of competent authority. It pertained to liberty and freedom of media.”

Of course, it is then also very rightly pointed out in para 13 that, “In the aforesaid circumstances, considering the ongoing pandemic caused by COVID-19, the Registry of this Court is working with less strength, and because of the facts described above and circumstances, we find that there was no justification for the petitioner to allege discrimination vis-à-vis to him and to favour any particular individual. The defects were there in all the three cases filed by the petitioner.”

Furthermore, it is then envisaged in para 14 that, “The petitioner has filed this writ application in a hurry. When it was listed, he circulated a letter to the effect that, as per procedure, he expected that he would be called for interaction by Registrar of this Court to find out his fitness whether he could argue a case in person. The petitioner ought to know that he is an Advocate of this Court and argues the matter in this Court. As such, it was not necessary to summon him for adjudging his capability as to whether he could argue the case. Be that as it may circulating such a letter was not appropriate at his stance and why he doubted his ability to argue. There was no justification to entertain this kind of apprehension in mind. He ought to have been careful in circulating such a letter seeking a wholly unjustified adjournment.”

As if this was not enough, it is then further stated in para 15 that, “In the letter circulated by him, it was further stated that he wanted to collect the evidence and to file it, and for that purpose, he prayed for six weeks time. The conduct indicates that the petitioner was careless and not serious while he made the allegations. He filed writ application without due inquiries, and without collecting the requisite material. Such conduct was least expected of an officer of this Court. Petitioner ought to have been careful before cast of unnecessary aspersions on the Registry and staff of this Court.”

Making matters worse, it is then also brought out in para 16 that, “The petition as filed could not be said to be maintainable. The petitioner has impleaded the Secretary General, various Registrars, and officers of the Registry, SCBA, and Union of India in his writ application. In contrast, Writ is filed against this Court itself. He ought to have impleaded the Supreme Court of India in the Writ Application through Secretary General. The omission indicates careless conduct on the part of the petitioner. The petition was filed in undue haste.”

More significantly, it is then underscored in para 17 that, “We take judicial notice of the fact that a large number of petitions are filed which are defective; still, the insistence is made to list them and mention is made that they should be listed urgently. It happens in a large number of matters, and unnecessary pressure is put upon the Assistants dealing with the cases. We find due to mistakes/carelessness when petitions with defects are filed, it should not be expected that they should be listed instantly. To err is human and there can be an error on the part of the Dealing Assistants also. This is too much to expect perfection from them, particularly when they are working to their maximum capacity even during the pandemic. The cases are being listed. It could not be said that there was an inordinate delay in listing the matters in view of the defects. The Court functioned during the lockdown, the cases were scanned and listed by the Registry. The staff of this Court is working despite danger to their life and safety caused due to pandemic, and several of the Dealing Staff, as well as Officers, have suffered due to Covid-19. During such a hard time, it was not expected of the petitioner who is an officer of this Court to file such a petition to demoralize the Registry of this Court instead of recognizing the task undertaken by them even during pandemic and lockdown period.”

Let us discuss now in brief the salient points of para 18 wherein the Bench holds that, “We see, in general, it has become a widespread practice to blame the Registry for no good reasons. To err is human, as many petitions are field with defects, and defects are not cured for years together. A large number of such cases were listed in the recent past before the Court for removal of defects which were pending for years. In such situation, when the pandemic is going on, baseless and reckless allegations are made against the Registry of this Court, which is part and parcel of the judicial system. We take judicial notice of the fact that such evil is also spreading in the various High Courts, and Registry is blamed unnecessarily for no good reasons. It is to be remembered by worthy lawyers that they are the part of the judicial system; they are officers of the Court and are a class apart in the society.” Some relevant case laws discussed in detail in this para about the expectations from lawyers include R. Muthukrishnan v. The Registrar General of the High Court of Judicature at Madras, Writ Petition (C) No. 612 of 2016 and Kamini Jaiswal v. Union of India & Anr. (2018) 1 SCC 156.

Most significantly, the Bench then minces no words in para 20 to hold that, “We expect members of the noble fraternity to respect themselves first. They are an intellectual class of the society. What may be proper for others may still be improper for them, the expectations from them is to be exemplary to the entire society, then only the dignity of noble profession and judicial system can be protected. The Registry is nothing but an arm of this Court and an extension of its dignity. Bar is equally respected and responsible part of the integral system. Registry is part and parcel of the system, and the system has to work in tandem and mutual reverence. We also expect from the Registry to work efficiently and effectively. At the same time, it is expected of the lawyers also to remove the defects effectively and not to unnecessarily cast aspersions on the system.”

Be it noted, it is then held in para 21 that, “Thus, we find no ground to entertain the petition. We expect the petitioner to be more careful and live up to the dignity of the profession which it enjoys.”

Finally, it is then held in para 22 that, “We dismiss the petition and impose cost of Rs. 100/- (Rupees One Hundred only) on the petitioner as a token to remind his responsibility towards noble profession and that he ought not to have preferred such a petition.”

In essence, the long and short of this extremely laudable judgment is that lawyers must appreciate and admit that registry is part and parcel of the system and just like Bar is an arm of the Court. Lawyers must refrain from casting aspersions on Registry at the drop of a hat. For the system to operate smoothly, it is imperative that the Bar and the Registry work in tandem and mutual reverence as very rightly pointed out in para 20 that was discussed earlier! There can be no denying or disputing it!

Sanjeev Sirohi,

State Duty-Bound To Ensure Well-being, Life And Liberty Of Migrant Workers Also: Kerala HC

Posted on | by Sanjeev Sirohi | Leave a Comment on State Duty-Bound To Ensure Well-being, Life And Liberty Of Migrant Workers Also: Kerala HC

In a commendable and courageous judgment, the Kerala High Court just recently on July 1, 2020 in Jana Samparka Samithy Vs State of Kerala in Case No. : WP(C). No. 27148 of 2015 has minced no words to make it unmistakably clear that the State Government has a duty to ensure well-being, life and liberty of migrant workers also. The State Government cannot abdicate this onerous responsibility under any circumstances. All the State Governments must always pay heed to this what the Kerala High Court has held so elegantly, effectively and eloquently!

To start with, the ball is set rolling in para 1 of this latest, landmark and extremely laudable judgment authored by Justice Shaji P Chaly of Kerala High Court and its Chief Justice S Manikumar wherein it is observed that, “W.P.(C) No. 23724 of 2016 is a Public Interest Litigation suo motu registered by this Court on 17.06.2016 on the basis of the common judgment in W.P.(C) Nos. 31925 of 2015 and 15370 of 2016 of a learned single judge of this court portraying the pathetic conditions of migrant labourers in the Labour Camps situated within the State of Kerala. As per the judgment in W.P.(C) No. 31925 of 2015, the Secretary of the Vadavucode Puthencruz Grama Panchayat was directed to seal the buildings of the respondents in the said writ petition, and the District Administration along with the Local Self Government Institutions were directed to take immediate steps to avert nuisance caused by the property, remove the contaminants and restore it to ensure safe habitation of the nearby residents. Other requisite directions were also issued. One of the directions was to the District Collector, Ernakulam to depute an Officer sufficiently senior in the hierarchy to conduct an inspection of the premises and close down the labour camp by providing alternate facilities for accommodating the migrant labourers and collect samples from the well water and to conduct analysis of the same. Since we found that the captioned writ petitions have intrinsic connection, we heard them together on agreement.”

To be sure, it is then stated in para 2 that, “The learned single Judge, taking into account the social ramifications emerged out of the specific instance brought before it in the writ petition, has directed as per an order dated 20.06.2016 to place the judgment before the then Acting Chief Justice requesting to take a decision as to whether a suo motu Public Interest Litigation was to be initiated, along with a memo filed by the learned Government Pleader in W.P. (C) No. 31925 of 2015 and the report of the District Collector with the photographs taken at the time of inspection. It was accordingly that the suo motu proceedings started. Thereafter, as per the order dated 18.07.2016, a Division Bench of this Court impleaded the Kerala State Legal Services Authority represented by its Member Secretary as an additional respondent in the writ petition, in addition to the State, its various Departments, District Collector, Ernakulam, an official of the Labour Department, public sector undertakings like Bharat Petroleum Corporation Limited, Indian Rare Earths Limited, Hindustan Organic Chemicals Ltd. etc. The member Secretary of KELSA was also directed to allot the suo motu case to Smt. Parvathy Sanjay, and with her consent she was appointed as amicus curiae on behalf of the Kerala State Legal Services Authority.”

While continuing in the same vein, it is then specified in para 3 that, “Thereafter, this Court was issuing periodical directions to the respondents as well as the amicus curiae to submit reports so as to issue directions to the State Government and the officials to take appropriate steps to protect the interest of the migrant labourers. The Secretary of KELSA has filed various reports before this Court pointing out the deficiencies existing in the labour camps, and the deplorable conditions of life of the migrant labourers who have been working in various establishments, especially at Perumbavoor, Ernakulam District where they were employed by the Plywood Manufacturers. Along with the report, KELSA as well as the amicus curiae have produced photographs, which would speak in volumes the pathetic condition under which the migrant labourers were living and the difficulties faced by them due to lack of facilities. To combat these issues suggestions were also placed before this Court.”

Be it noted, it is then envisaged in para 4 that, “The amicus curiae has also produced before this Court emergent reports taking into account the urgent actions to be taken and also seeking appropriate directions to the State as well as the other authorities. Likewise, taking into account the report of the amicus curiae, directions were issued to the public sector undertakings who were found to be the principal employers. The report also demonstrated the unhygienic conditions, and the poor maintenance of the bathroom and toilets in labour camps. Pollution problems were also reported to be persisting in the labour camps, however consequent to the successive orders issued by this Court, steps were taken by the authorities and the public sector undertakings to abate the nuisance. Steps were also taken to decongest the labour camps consequent to such reports. The Panchayat  as well as the other authorities were also given the liberty to inspect each of the labour camps and take appropriate decisions so as to ensure only a minimum number of labourers residing in such labour camps. In fact, on the basis of the report that there was exploitation of the migrant labourers, appropriate directions were issued by this Court, and due to the constant and frequent reports of KELSA, statement filed by the Government and its officials, as also the report of the amicus curiae, and the consequent monitoring by this court, many of the problems that were faced by those migrant labourers could be curbed and other situations were also able to be regulated to a considerable and satisfactory extent. While continuing so, situations have arisen due to the lock-down restrictions on account of the pandemic, Covid-19 vis-à-vis the difficulties faced by the migrant labourers. Due to the closure of the business establishments and the factories, the migrant labourers were faced with various difficulties, including loss of employment and situations with respect to their day-to-day affairs. Thereupon, on the basis of the reports submitted by the KELSA and the amicus curiae, clarifications were sought by this Court from the Government and its officials and after considering the rival submissions, directions were being issued to sort out the difficulties faced by the migrant labourers. In fact, such reports filed by the KELSA and the amicus curiae were extending help to the State Government and its officials to identify the issues specifically, and to take urgent steps to abate the nuisances confronted by the migrant labourers, and also to alleviate the difficulties faced by them due to the unemployment, and the consequential unrest generated.”

To say the least, it is then elucidated in para 14 that, “After hearing the learned counsel for the petitioner in the said writ petition, learned Sr. Government Pleader, Sri Surin George Ipe, and the learned amicus curiae Smt. Parvathy Sanjay representing the KELSA, we are of the view that the writ petition can be disposed of with appropriate directions taking into account the present situations prevailing in the State of Kerala. Needless to say, the State Government is duty bound to protect the health and welfare of the migrant workers in accordance with the mandate contained under Article 21 of the Constitution of India and the obligations and duties contained under the directive principles which are fundamental in the governance of the State and also the fundamental duties imbibed in every citizens under Article 51-A of the Constitution of India.”

 

As a corollary, it is also then said in para 15 that, “On a conjoint reading of the said provisions of the Constitution of India, we are of the view that, the State has an onerous duty to ensure the well being and life and liberty of every citizen, which includes the migrant workers also.”

On the face of it, what is then further underscored in para 16 is that, “Therefore, the State Government has a duty to ensure that the employers are providing appropriate shelter to the migrant workers, a clean environment and a healthy living condition with sufficient ventilation, light etc. along with other basic amenities. It is also the duty of the State Government to see that employers are satisfying the requirements in accordance with the prevailing laws with respect to the wages, contribution to welfare funds etc. of the migrant labourers. So also, adequate measures shall be taken for curbing ill-treatment of the labourers in any manner, by the employers.”

Going forward, it is then stated in para 17 that, “In that view of the matter, there will be a direction to the State Government to ensure that the life and liberty of the migrants labourers are protected envisioned by the framers of the Constitution of India and bearing in mind the responsibilities and the fundamental duties and obligations of the State Government in doing so. If any information is received by the State Government and its officials in respect of any ill-treatment of the migrant labourers from any responsible corners, quick action shall be taken for ensuring their well being and life and liberty. It is also made clear that if any of the migrant labourers expressed his intention to go back to his native State, adequate steps shall be taken by the State Government through its Offices to ensure return of such migrant workers subject to the lockdown restrictions and consequential SOPs issued by the respective Governments. So also, the Government shall always be watchful to ensure that no forcible detention are made by the employers of any migrant workers so as to cause any prejudice to the migrants, and if any such action on the part of the employers are noted by the Government, adequate steps shall be taken to initiate appropriate action against such persons. We also make it clear that the State Government is at liberty to implement the suggestions in Ext. P1 report in W.P.(C) No. 23724 of 2016, if they are genuinely required to improve the health and welfare of the migrant labourers.”

In essence, this latest, landmark and extremely laudable judgment by a two Judge Bench of the Kerala High Court very rightly accords the topmost priority to the well-being, life and liberty of migrant workers also who always render their invaluable contribution in State’s development in all spheres as we have already dwelt in detail. It enjoins upon the Kerala State Government to ensure that the same is protected always! The Kerala State Government and its officials must comply with accordingly with the directions stated in the judgment without fail! There can be no denying or disputing it!

Sanjeev Sirohi

Chief Minister Public Hearing Cell Does Not Have Jurisdiction To Direct The Police To Register An FIR: Jharkhand HC

Posted on | by Sanjeev Sirohi | Leave a Comment on Chief Minister Public Hearing Cell Does Not Have Jurisdiction To Direct The Police To Register An FIR: Jharkhand HC

                                            In a fresh development, the Jharkhand High Court just recently in a latest, landmark and laudable judgment titled Sanjay Kumar Sharda v. State of Jharkhand & Ors. in W.P.(Cr.) No. 395 of 2019 has made it amply clear in no uncertain terms that the Chief Minister Public Hearing Cell does not have jurisdiction to direct the police to register an FIR.  While deprecating the usurpation of power, the Jharkhand High Court in this noteworthy case has strongly deprecated the practice of the Chief Minister Public Hearing Cell pressurizing the police officials to register an FIR as it has no jurisdiction to direct the police officials to register an FIR and has no power to monitor the same. Very rightly so!

To start with, the ball is set rolling in para 1 of this notable judgment authored by Justice Ananda Sen wherein it is stipulated that, “The lawyers have no jurisdiction with regard to the proceeding, which has been held through video conferencing today at 10:30 A.M. They have no complaint in respect of the audio and video clarity and quality.”

While stating the purpose behind filing the petition, it is then stated in para 2 that, “By way of filing this petition under Article 226 of the Constitution of India, the petitioner has prayed for quashing of the entire criminal proceeding including the First Information Report in connection with Ramgarh P.S. Case No. 300 of 2018, registered for the offence under Section 406, 420 and 34 IPC, pending before the court of learned Chief Judicial Magistrate, Ramgarh.”

As it turned out, after hearing the counsel for the parties as pointed out in para 3, it is then brought out in para 4 that, “Counsel for the petitioner submits that from the perusal of the FIR, it will be clear that no criminal offence is made out. He further submit that there was on going business transaction between the parties and if for some breach of contract or because of some misunderstanding between the parties, the business transaction fails, it cannot be said that criminal cause of action arises for initiating a criminal proceeding. He submits that FIR was registered at the pressure of “Mukhya Mantri Jansanbad Kendra” (the Chief Minister Public Hearing Cell), which is a non-statutory authority and no direction can be given by such authority to register the FIR. He also submits that the action of the said Cell is absolutely bad, when there is procedure laid down in the Code of Criminal Procedure as to what steps are to be taken, and in what manner, if an FIR is refused registration by police.”

On the contrary, it is then brought out in para 5 that, “Mr. Anil Kumar, learned senior counsel for respondent No. 5 submits that the petitioner has cheated the respondent No. 5, as some of the materials have been kept/withhold by the petitioner and thus, offence under Section 406 IPC is made out. He further submits that when an offence is made out, FIR cannot be quashed.”

To put things in perspective, it is then pointed out in para 6 that, “This is a petition in which, an FIR is sought to be quashed. The law is well settled on this issue. The Hon’ble Supreme Court in the case of State of Haryana and Ors. Vs. Bhajan Lal and Ors. reported in (1992) Suppl. 1 SCC 335 (2014) 3 SCC 151 has held that when an offence is made out, the FIR cannot be quashed. The Court has to see as to whether from perusal of the FIR, any offence is made out or not.”

While elaborating on the details of FIR, it is then observed in para 7 that, “I have gone through the FIR. The informant has stated in the FIR that he had a business relationship with M/s Kameshwar Alloys & Steel Pvt. Ltd., Gola. He submits that the petitioner is the director of M/s Kameshwar Alloys. It is further stated that he was having business transaction with the accused persons since the year 2010 till January 2015. He stated that 40 pieces of Oxygen Cylinder and 26 pieces of commercial Gas Cylinder have been kept by the petitioner, which have not been returned. The value of the materials would be Rs. 6,60,000/-. He also submits that neither the amount has been paid nor the cylinders have been returned. This is the sum and substance of the written report, on whose basis, FIR has been registered.”

As is quite ostensible, it is then made clear in para 8 that, “From perusal of the aforesaid written report, it is clear that there was business relationship between the parties. This business relationship continued from the year 2010. The materials were kept by the petitioner, valued at Rs. 660,000/-. It is the case of the informant that the said amount has not been paid to him by the petitioner. FIR has been registered under Section 406, 420 and 34 IPC.”

For the sake of brevity, what is mainly mentioned in para 9 apart from mentioning that Section 406 IPC prescribes punishment for criminal breach of trust and criminal breach of trust has been defined under Section 405 IPC is that, “In this case, even if there is allegation that the materials were entrusted to the petitioner, but there is no allegation that the materials were dishonestly misappropriated or has been converted to the use of the petitioner. The ingredient of Section 405 IPC is missing in the instant case.”

To say the least, it is then stated in para 11 that, “From the facts narrated in the FIR, I find that there is no element which attracts Section 415 IPC. Admittedly there was business transaction between the parties since the year 2010 to 2015. The intention to cheat by the petitioner cannot be derived from perusal of the instant FIR. The Hon’ble Supreme Court in the case of Dalip Kaur Vs. Jagnar Singh, reported in (2009) 14 SCC 696 has held that there has to be an intention to cheat from the very beginning of the transaction. While I go through the written report, I find that there is no such pleading to that effect. In absence of this pleading, it can safely be held that there is no application of Section 415 IPC in the instant case.”

Going forward, it is then illustrated in para 12 that, “The Hon’ble Supreme Court in the case of Binod Kumar and Others Vs. State of Bihar and Another reported in (2014) 10 SCC 663 has held that civil liability cannot be converted into criminal liability. The Hon’ble Supreme Court has also held that by doing so, the power as well as the process of the court is abused. The Hon’ble Supreme Court has also held that the criminal proceeding are not the short cut for other remedies. In the aforesaid judgment, the Hon’ble Supreme Court has taken into consideration several judgments on the same line, which has been delivered by the Hon’ble Supreme Court.”

To put it succinctly, it is then held in para 13 that, “Considering the principles laid down by the Hon’ble Supreme Court, I find in the facts and circumstances that even if the FIR is taken on the face value, no offence punishable under Sections 420 and 406 IPC is made out. A simple money claim, arising out of a continuing business transaction, has been given the colour of criminal case, which is nothing but an abuse of the process of law.”

As things stand, it is then stated in para 14 in simple and straight language that, “In view of the aforesaid facts and the principle, which has been laid down by the Hon’ble Supreme Court, I find that continuation of criminal proceeding against the petitioner will be an abuse of the process of the Court. I, therefore, exercising the jurisdiction under Article 226 of the Constitution of India, quash the FIR in connection with Ramgarh P.S. Case No. 300 of 2018, registered for the offence under Section 406, 420 and 34 IPC, pending before the court of learned Chief Judicial Magistrate, Ramgarh.”

Most significantly, it is then held in para 15 that, “Before parting, I find that the FIR was registered at the direction of the “Mukhya Mantri Jansanbad Kendra” (the Chief Minister Public Hearing Cell) as the informant made a complaint to that Cell, when the FIR was not being registered. This document is the part of the FIR and from perusal of the same, I find that there was a direction by that Cell on 25.12.2017 to register the FIR. Further several directions were given by the said Cell, which would be apparent from pages 26, 27 and 28 of the FIR. Not only direction but the matter was supervised by the said Cell. If a written complaint is placed before a police officer wherein cognizable offence is alleged, the Officer cannot refuse to refuse to register the same as FIR. If there is refusal or negligence on the part of the police in registering the same, the remedy lies in Code of Criminal Procedure. The complainant/informant can send the complaint to the Superintendent of Police or to the Higher Authority praying therein to register the same. He even has the option to file a complaint before the court of competent jurisdiction. There is no provision in law to approach “Mukhya Mantri Jansanbad Kendra’’, which is absolutely a non-statutory body nor having being vested with any power under Cr.P.C. Further the said “Mukhya Mantri Jansanbad Kendra’’ has got no jurisdiction to direct the police official to register an FIR and have no power to monitor the same. Thus, the “Mukhya Mantri Jansanbad Kendra’’ has absolutely acted beyond jurisdiction and usurped the power, which was not vested in it by the Cr.P.C. This type of usurping of power by the said Cell is deprecated.’’

Be it noted, it is then stated in para 16 that, “Let a copy of this order be forwarded to the Chief Secretary of the State and the Advocate General, Jharkhand High Court, Ranchi, for looking into the matter and taking proper action in this matter.’’ Lastly, it is then held in the last para 17 that, “With the aforesaid direction and observation, this criminal writ petition stands allowed.’’

On a concluding note, it needs no Albert Einstein to conclude that what Justice Ananda Sen of Jharkhand High Court has directed makes sense and must be complied with forthwith in totality. Hemant Soren who is the Chief Minister of Jharkhand must act swiftly and comply with what has been directed as mentioned above! There can be no denying or disputing it!

Sanjeev Sirohi

‘Exceeded Jurisdiction’: Division Bench Of P&H HC Sets Aside Single Bench Order On Administrative Side Passed During Judicial Hearing

Posted on | by Sanjeev Sirohi | Leave a Comment on ‘Exceeded Jurisdiction’: Division Bench Of P&H HC Sets Aside Single Bench Order On Administrative Side Passed During Judicial Hearing

At the outset, it must be stated that the Punjab and Haryana High Court just recently on June 30, 2020 in a noteworthy judgment titled Punjab and Haryana High Court through its Registrar (Computerization) v. Zahur Haider Zaidi & Ors. in Case No. : LPA No. 401/2020 (O&M) & Case No. : LPA No. 402/2020 (O&M) has set aside a single Bench order on administrative side passed during judicial hearing. The Division Bench of Punjab and Haryana High Court comprising of Chief Justice Ravi Shankar Jha and Justice Arun Palli while setting aside the order of a single Judge whereby orders pertaining to administrative side of the High Court were passed during hearing of two criminal matters said clearly, categorically and convincingly that, “Running of the High Court on the administrative side cannot be permitted to be taken up by each and every Judge on the judicial side as he thinks fit as that would lead to collapse of the system of the administration of the High Court.” It was also clarified that if any Judge faces technical problem during hearing of cases via video conferencing, the proper course would be to bring the same to the notice of the Registrar General of the High Court.

Needless to say, it is pointed out at the beginning itself that, “With the consent of learned counsel for the parties, the matter is being taken up and heard via video conferencing.” The ball is then set rolling by observing that, “Both these appeals have been filed by the Punjab and Haryana High Court being aggrieved by the orders dated 21.05.2020 and 10.06.2020 passed by the learned Single Judge in CRM-M No. 7051 of 2020 and CRM-M No. 7434 of 2020 directing the High Court to ensure that technical persons are available at the time of hearing of cases through video conferencing and that such technical persons should ensure that every case is available on-line on the computer by downloading the cause list onto the laptop/computer and make an icon on the desktop of that computer as also download the pleadings of all the cases listed on that day onto the computer and make individual icons on the desktop so that the Court can access each case at the click of the mouse. It is also directed that such technical person should ensure that the cases so downloaded are as per the cause list and are properly and accurately uploaded.”

To say the least, the Bench then notes that, “It is submitted by learned counsel for the appellant that the said directions were issued in the criminal matters that were being heard by the learned Single Judge. It is submitted that they have no grievance and have not challenged the orders passed in the criminal cases but are only aggrieved by the directions issued to the High Court regarding making available of technical persons for regular court work.”

While elaborating further, the Bench then observes: “It is submitted that in CRM-M No. 7051-2020, the petitioner was praying for regular bail whereas in CRM-M No. 7434 of 2020, the order passed by the Special Judge, CBI Court, Chandigarh cancelling the bail of the petitioner therein was assailed. Thus, the High Court (appellant) was not a party to those proceedings. However, being aggrieved by the directions/orders that are being assailed in the present appeals, the High Court in the first instance moved two applications in each of the cases; seeking to be impleaded as party and for recalling the order(s) dated 21.05.2020. Vide order dated 10.06.2020, the learned Single Judge impleaded the appellant as party to the proceedings. But the prayer for recalling/modifying the order dated 21.05.2020 has since been declined vide order dated 10.06.2020 and instead it was observed that “as regards recalling/modification of the order, I see no reason to do so because if training had already been imparted to the staff of each Court, it is the duty of such court staff to ensure, in tandem with other officers/officials of the Registry, to upload all case files on to the computers/laptops/i-pads etc. available to each Court”. Thus these appeals.”

More to the point, the Bench then observes that, “Learned counsel for the appellant having taken us through the grounds on which the order dated 21.05.2020 was sought to be recalled as also the grounds of appeal at hands has demonstrated that the impugned directions issued by the learned Single Judge are rather causing practical difficulties and have made it nearly impossible for the High Court (appellant) to regulate and manage the video conferencing process. He submits that the role of the technical staff of the Computer Section of the High Court is confined only to resolving the technical issues concerning connectivity or audio/video disturbances during the hearing. Whereas the task of downloading the cause list, pleadings, making individual icons on the desktop, downloading the cases as per the cause list, has specifically been assigned to the secretarial staff attached to each Court/Judge. Thus, he submits in the wake of the directions issued by the learned Single Judge, the technical staff is now required to take up even the secretarial work. It is, therefore, prayed that the impugned directions be set aside.”

Be it noted, the Bench then brings out that, “It is informed that the number of technical staff available in the High Court is very limited whereas adequate and sufficient trained staff including Special Secretary/Secretary/Private Secretary/Judgment Writer/Stenographers (stenography line) and Special Secretary/Court Secretary/Reader/Superintendent (Reader Line) and Law Researchers have already been provided to each Court/Judge and they have also been directed to ensure that the Court is able to take up the video conferencing without any hindrance by downloading the paper books, making icons on the desktop and ensuring downloading of the cause list in accordance with the serial numbers notified. It is the secretarial staff that is responsible for the aforesaid task and has to be utilized for that purpose and not the technical staff of the High Court.”

Importantly, it is also clarified by the Bench that, “Thus, the secretarial staff attached to each Court/Judge that consists of Special Secretary/Secretary/Private Secretary/Judgment Writer/Stenographers (stenography line) and Special Secretary/Court Secretary/Reader/Superintendent (Reader Line) and Law Researchers is obliged to ensure that the court proceedings through video conferencing are held unhindered. Undoubtedly, the technical staff of this Court are fully skilled/trained to deal with any technical snag/issue during the video conferencing but not equipped to manage the procedural functioning of the Court which is a specialized task of a regular court staff. In the circumstances, we are of the considered opinion that the impugned directions deserve to be set aside.”

More importantly, the Bench then observes that, “We are also impelled to observe that of the two matters listed before the learned Single Judge, in one regular bail was prayed for and in the other the order of cancellation of bail was under challenge in which the issues regarding the problems arising in the video conferencing were neither involved nor raised. In such circumstances, if any inconvenience was faced by the learned Single Judge owing to lack of any technical/secretarial assistance, the proper course that should have been adopted was to bring the problem to the notice of the Registrar General of this Court for its resolution.”

Most importantly, the Bench then makes it a point to say clearly, categorically and convincingly that, “We are of the considered and firm opinion that the learned Single Judge exceeded his jurisdiction in issuing directions purely relating to the administration of the High Court “in a criminal matter” as the extraordinary and inherent powers of the Court cannot be invoked in purely administrative matters. Judicial powers cannot be invoked to run the administration of the High Court, which task vests in the Chief Justice or in the Full Court of the High Court and is regulated by Rules and instructions issued in that regard. Running of the High Court on the administrative side cannot be permitted to be taken up by each and every Judge on the judicial side as he thinks fit as that would lead to collapse of the system of the administration of the High Court.”

Going ahead, it is then held that, “Moreover, as the issue in respect of which the impugned directions have been issued was neither subject matter of challenge nor within the roster assigned to the learned Single Judge and therefore, the learned Single Judge exceeded the jurisdiction vested in him rendering the directions nonest. The law in respect of the issue has been clarified by the Supreme Court in the case of Campaign for Judicial Accountability and Reforms v. Union of India and another (2018) 1 SCC 196.”

Finally, it is then held that, “In the circumstances, the impugned directions issued by the learned Single Judge vide orders dated 21.05.2020 and 10.06.2020 to the extent that the technical staff of the High Court has been directed to take up the secretarial work are set aside. It is made clear that the responsibility as delineated in the preceding paragraphs about the technical staff shall be followed and implemented by the Registry subject to any modification or change that shall be caused by orders passed subsequently on the administrative side. Both the appeals are accordingly allowed and stand disposed of in the above terms.”

No doubt, all the High Court Judges must always pay heed to what the Division Bench of Punjab and Haryana High Court has held so explicitly in this leading case! This will save them from getting their order overturned by a Division Bench as we see in this leading case! No denying or disputing it!

Sanjeev Sirohi

Bombay HC Dismisses PIL Alleging Negligence In Management Of Dead Bodies Of Covid-19 Victims By MCGM Staff

Posted on | by Sanjeev Sirohi | Leave a Comment on Bombay HC Dismisses PIL Alleging Negligence In Management Of Dead Bodies Of Covid-19 Victims By MCGM Staff

In a latest and fresh development, the Bombay High Court just recently on July 3, 2020 in Ketan Tirodkar Vs State of Maharashtra & Anr in Case Number: PIL-CJ-LD-VC-29 of 2020 dismissed a public interest litigation (PIL) alleging negligence in management of dead bodies of Covid-19 victims by Municipal Corporation of Greater Mumbai staff after the Corporation filed an affidavit categorically denying the allegations in the PIL and asserting vehemently that the guidelines of the Health Ministry are being strictly followed for disposal of dead bodies. It would be vital to mention here that a Division Bench of Chief Justice Dipankar Datta and Justice NJ Jamadar was hearing a PIL filed by an activist – Ketan Tirodkar who contended that the smoke emanating from the chimneys at crematoriums in Shivaji Park and Chandanwadi is dangerous for the MCGM workers handling the bodies. Ketan’s claims fell through as they could not be substantiated to the satisfaction of the Bombay High Court!

To start with, the ball is set rolling in para 1 of this noteworthy judgment delivered by a two Judge Bench of Bombay High Court comprising of Chief Justice Dipankar Datta and NJ Jamadar wherein it is envisaged that, “The petitioner claims to be a social activist. From the cause title of the PIL Petition, it appears that he has been residing at Pune. In this proceeding, styled as ‘Public Interest Litigation’, he seeks to bring to judicial notice alleged negligence in management and disposal of dead bodies of COVID-19 victims by the staff of the Municipal Corporation of Greater Mumbai (hereafter “the Corporation”), more particularly in the crematoriums at Shivaji Park and Chandanwadi. The material paragraph from the PIL Petition, which forms its plinth, reads as follows:-

“3. It has been learnt that Shivaji Park funeral site for Hindus has been receiving bodies of COVID-19 casualties which are neither wrapped in the ‘leak-proof’ bags nor are they applied with ‘hypochlorite’. A worker of Shivaji Park funeral site has been found infected with COVID-19 and presently there are only seven workers on duty performing the high-pressure task.

The smoke emanating from the process of electric funeral goes up around the area creating an eminent (sic, imminent) danger of the residents in the vicinity getting infected.

Huge number of bodies keep coming to various such funeral sites from civic & State hospitals without being wrapped and without being subjected to application of ‘hypochlorite’.

Shivaji Park Crematorium in Dadar West and Chandanwadi crematorium in Charni Road have been receiving major workload as they are in the close vicinity of major State & Civil hospitals. Around 18 to 20 bodies are received every day by these two crematoriums. The staff is not given adequate medication and the protective overalls. Moreover, there is eminent (sic, imminent) danger of the residents in the surrounding localities catching infection due to the smoke emitted by the chimneys.””

To be sure, it is then stated in para 2 that, “On the basis of such pleadings, it has been prayed in the PIL Petition as follows:-

(a)          This Hon’ble Court may be pleased to direct the Respondent to direct the respondent State to enforce the safety guidelines for applying 1% hypochlorite over the bodies.

(b)         This Hon’ble Court may be pleased to direct the Respondent to ensure that the bodies of the COVID-19 patients are wrapped in the ‘leak-proof’ bags before sending them to the crematoriums, Muslim & Christian burial places.

(c)           This Hon’ble Court may be pleased to direct the Respondent to provide adequate medication, protective overalls and sufficient material to maintain hygiene for the workers engaged at the funeral places.”

On the contrary, it is then pointed out in para 3 that, “The Corporation, by filing an affidavit-in-reply, has categorically denied the material allegations in the PIL Petition. Referring to the guidelines dated March 15, 2020 issued by the Ministry of Health and family Welfare, Government of India on management of dead bodies and a circular dated June 4, 2020 issued by it laying down Standard Operating Procedures for handling of dead bodies, the Corporation has contended that the provisions of the guidelines are being strictly enforced so as to keep the spread of the virus within manageable limits. Relying on the decision of a coordinate Bench of this Court dated May 22, 2020 passed in LD-VC-46-2020 (Pradeep Gandhy & Ors. vs. State of Maharashtra & Ors.) and other connected matters, which dealt with the issue of decent burial of COVID victims, it has been emphasized that things are moving in the right direction and that there is no case for judicial intervention.”

As things stand, para 4 then brings out that, “A rejoinder affidavit has been filed by the petitioner. It has been vaguely alleged therein that the guidelines that are issued are not being strictly followed by the Corporation. Particulars of any specific incident are not provided. When questioned on the point of absence of particulars, Ms. Vhatkar, learned Advocate for the petitioner submits that since the petitioner during the period of lockdown is away in Pune, he has been disabled in furnishing particulars. This is apart from the fact that the rejoinder does not conform to Order VI Rule 15 of the Code of Civil Procedure.”

Most significantly, the Bench then after hearing the parties and perusing the pleadings on record then holds in para 6 that, “The allegations made by the petitioner do not as such appear to be based on his personal knowledge, though paragraphs 1 to 8 are verified as true to the best of his knowledge. Whatever he has learnt on reading certain newspaper reports has triggered the institution of this PIL Petition. In course of hearing, Ms. Vhatkar admits that newspaper reports are not admissible evidence. No material has been placed before us which could even remotely support or validate the stand that the petitioner has taken in the PIL Petition. In the absence of the relevant data, we hold his fears and concerns to be misconceived. That the petitioner has been residing in Pune during the lockdown period and alleging mismanagement in Mumbai has also left us to wonder how he could have verified the pleadings in the PIL Petition as true to the best of his knowledge. That the petitioner has been residing in Pune, for which he could not provide  relevant facts and figures for drawing up the PIL Petition in a more comprehensive manner, is also of little importance. Once it is admitted by Ms. Vhatkar that the petitioner did not have any first hand knowledge of whatever has been alleged in the PIL Petition, we are constrained to observe that verifying the contents of the PIL Petition as true to the best of the knowledge of the petitioner has not been a proper exercise.’’

Needless to say, it is then observed in para 7 that, “Even if we keep aside these technicalities and proceed on the merits of the matter, we find on the one hand the emphatic stand of the Corporation that the guidelines dated March 15, 2020 and June 4, 2020 issued by the Ministry of Health and Family Welfare, Government of India as well as the Corporation itself, respectively, are being scrupulously followed and enforced in the matter of management and disposal of dead bodies of COVID victims. Not only has the Corporation pleaded that the polythene bags in which the cadavers are wrapped are of the requisite quality, it is also pleaded that ‘hypochlorite’, to the extent necessary, is being administered on the cadaver so as to prevent the spread of the virus. Reference has also been made to other clauses of the guidelines which the Corporation has been adhering to, to ensure that the people residing in the vicinity of the crematoriums within the municipal limits are kept free from contracting any information to the extent possible.’’

To put things in perspective, it is then pointed out in para 8 that, “As referred to earlier, there are bare denials in the rejoinder affidavit and vague allegations that the guidelines have not been strictly followed. An action based on vague allegations does not deserve to be proceeded with. The other allegations of the petitioner in the rejoinder affidavit that the Corporation has not furnished full details of how many staff are on its rolls, how many of them are attending work, what steps are being taken against those guilty of absenteeism, etc. are not at all germane to the concerns that the petitioner has expressed in the PIL Petition.’’

Of course, the Bench then rightly holds in para 9 that, “The case run in paragraph 3 of the PIL Petition, the statements made in answer thereto by the Corporation in its reply affidavit and the absence of any particulars in the rejoinder affidavit as to any specific incident of mismanagement, apart from reference to unnecessary points, lead us to the unmistakable conclusion that no case for interference has been set up by the petitioner. The PIL Petition stands dismissed, but without any order of cost.’’

However, it is then made clear in para 10 that, “We, however, hope and trust that the Corporation shall continue to earnestly  adhere to and enforce the extant guidelines so that life of each and every citizen is preserved and that they are not put to unnecessary distress as a result of the contagion.’’

Finally, it is then held in the last para 11 that, “This order will be digitally signed by the Sr. Private Secretary of this Court. All concerned will act on production by fax or e-mail of a digitally signed copy of this order.’’

To conclude, the two Judge Bench of Bombay High Court very rightly dismisses a PIL alleging negligence in management of dead bodies of Covid-19 victims by Municipal Corporation of Greater Mumbai staff as they could not be substantiated by the petitioner! If the petitioner had submitted something concrete then certainly the outcome would have been different. There can certainly be no denying it!

Sanjeev Sirohi

Girl Trafficking More Heinous Offence Than Drug Trafficking But Less Stringent: Orissa HC

Posted on | by Sanjeev Sirohi | Leave a Comment on Girl Trafficking More Heinous Offence Than Drug Trafficking But Less Stringent: Orissa HC

 

While taking a very serious note of the notorious crime of girl trafficking, none other than the Orissa High Court itself has just recently on June 29, 2020 in a latest, landmark and extremely laudable judgment titled Panchanan Padhi Vs State of Odisha in Case No.: BLAPL No. 2612 of 2020 has minced no words to categorically observe that trafficking of girls is an offence more heinous than drug trafficking but ironically less stringent. How can our lawmakers still take this for granted? How can our law makers still justify less stringent punishment for trafficking of girls as compared to drug trafficking?

At the outset, Justice SK Panigrahi who authored this commendable, comforting and courageous judgment makes it a point to first and foremost recollect what the legendary Justice VR Krishna felt about this woman issue by stating that, “No nation, with all its boasts, and all its hopes, can ever morally be clean till all its women are really free – free to live without sale of their young flesh to lascivious wealth or commercializing their luscious figures…..” It is our lawmakers who must bear this in mind always while enacting laws! How can less stringent punishment be ever justified by anyone for heinous offences like girl trafficking?

To start with, the ball is set rolling in para 1 of this noteworthy judgment wherein it is first and foremost observed that, “The instant case has once again given an opportunity to this Court to ponder as to how the opportunistic predators seize upon the vulnerability of some desperate and impoverished girls. The accused herein is allegedly notorious for his aplomb in identifying girls and capitalizing their distress condition but caught red-handed by police. The Petitioner herein has preferred the instant application under Section 439 of the Code of Criminal Procedure vide BLAPL No. 2612 of 2020 against the C.T. Case No. 379 of 2020 pending before the court of the Learned SDJM Bhubaneswar (T), CSI, Bhubaneswar for alleged offences punishable under Sections 4/5 of the Immoral Trafficking (Prevention) Act, 1956 read with Section 370(3)/467/471/120B and 34 of the Indian Penal Code. The court of the Addl. Sessions Judge, Bhubaneswar has rejected the application seeking grant of bail vide B.A No. 260 of 2014 filed by the Petitioner herein u/s 439 Cr.PC on 4.3.2020.”

While elaborating on the facts, it is then stated in para 2 that, “The factual matrix of the instant case as set out in the F.I.R. is that on 21.01.2020 at around 10:00 AM Shri Alok Kumar Jena, Inspector of Police, STF/informant received information from a reliable source that one Ibrahim Khan and one Ruksar Begaum of Danagohiri, from Pipili, Dist. Puri are regularly trafficking girls from Kolkata and other places and engage them in sexual exploitation for commercial purposes from which he derive income. It was also informed that the girls were being procured from Kolkata and they were housed in a rented house at Bishnukunj Ratha Road, PS-Shree Lingaraj, Bhubaneshwar. They were being exploited at the instance of Ibrahim Khan and Ruksar Begum. These girls were forcefully sent to various hotels and lodges where they were subjected to sexual abuse and exploitation. Upon receiving such information, the informant apprised the Superintendent of Police, STF, Bhubaneswar who recorded the said facts vide Station Diary Entry No. 4 dated 21.01.2020 and directed the informant to reach the spot along with a team of police officers including some lady officers to conduct the raid.”

Going forward, it is then brought out in para 3 that, “Accordingly, the informant acc ompanied by a team of police officers including some lady officers proceeded to the aforementioned house where the kingpin Ibrahim Khan and his wife were residing. After reaching at the said house, which is a double storied building, they gheraoed the said building to prevent the egress or ingress by anyone. The informant proceeded to the first floor and knocked at the door of the first room and in response to the same one of the girls opened the door and he could notice the presence of six girls in the room. He, thereafter disclosed his as well as his team’s identity by showing their Identity Cards and asked for production of their identity cards. The six girls disclosed their respective identity and they were stated to have been brought from Kolkata by alluring them to work in some beauty parlors in the city.”

Be it noted, it is then revealed in para 4 that, “Before conducting the said raid, the informant secured the presence of two respectable persons of the locality as witnesses to the search and seizure operation. Thereafter, while conducting the personal search of the girls by the lady police officers, they found six mobile phones, thirty unused condoms etc. Those articles were seized in presence of the seizure witnesses and a seizure list was prepared on the spot which was duly signed by the witnesses as well as the victims.”

More damningly, it is then unfolded in para 5 that, “During examination of the victims, they revealed that the aforesaid Ibrahim Khan and Ruksar Begum and certain other unknown persons have procured them from Kolkata and on some false pretext of employment in beauty parlors forced them into sexual slavery and prostitution. As per victims’ statement made under Section 161 of Cr.P.C. the present petitioner was forcibly sending them to various hotels and lodges and were arranging customers for such illegal act. The Petitioner herein was acting in concert with aforesaid principal accused by making wide publicity among the prospective customers to be in touch with them for such act. The victims have further disclosed that Ibrahim Khan and Ruksar Begum have kept them in the said rented house and they used to give them a sum of 1000/- per day as allowance and lion’s share of the amount received was pocketed by them. The informant and other officers nabbed Ibrahim Khan and Ruksar Begum from the adjacent rooms of the said building. On being interrogated they confessed that they were running a prostitution racket by forcefully exploiting the victims in the adjoining rooms. During the search of Ibrahim Khan, 5 Aadhaar Cards of the girls along with a mobile phone and cash of 40,000/- were recovered from his pant pocket and were seized in the presence of witnesses. During interrogation, the above-named accused persons also confessed that the Aadhaar Card were forged documents to facilitate the business of prostitution.”

As a corollary, what follows next is then stated in para 6 as: “The victims were rescued and were kept in shelter homes. The accused persons were apprehended U/s. 4 and 5 of Immoral Trafficking (Prevention) Act read with Sections 370(3), 467, 471 & 120B/34 of Indian Penal Code who were later produced along with seized articles before STF. Accordingly, the FIR was drawn and these accused persons have been forwarded U/s. 4/5 Immoral Trafficking (Prevention) Act read with Section 370(3), 467, 471 & 120B/34 of Indian Penal Code on 22.01.2020.”

To put things in perspective, it is then observed in para 9 that, “Perused the up-dated case diary and the rival submissions of the parties, wherein it is deciphered that the victim girls have clearly stated against the accused persons in their statements recorded U/s. 161 of Cr.PC. It prima facie reveals that the principal accused Ruksar and Ibrahim have kept them in the house for the purpose of sexual exploitation. The statement of the victim girls also hints that the accused persons were threatening them to face starvation if they try to flee from the said house. In addition, the accused have fabricated their Aadhaar Cards and the seizure list also reveals that 30 unused condoms along with their mobile phones were seized from the possession of victim girls. The instant petitioner was also alleged to have been working in partnership with principal accused. Prima facie, it appears to be a complete racket run by the principal accused and his accomplice though the complete picture will emerge from a thorough trial.”

While lambasting the trafficking crime, it is then held in no uncertain terms in para 10 that, “The crime of trafficking girls is dehumanizing as well as utterly shameful to our civilized society. This issue has sufficiently captured the attention of our Constitution makers and also appeared on the radar screen of modern Indian Law. Despite constitutional dictums and legal provisions, the humanity is still struggling to combat human trafficking. It is a complex policy challenge which intersects many policy paradigms. The international policy frameworks have also been in place since long, especially, since 1904, the international community has been working together to understand and put together the pieces of the human trafficking puzzle. There are six international treaties that explicitly address issues related to human trafficking. However, this issue has only topped the policy agendas of the international community in 2000. [United Nations drafted the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (UN Anti Human Trafficking Protocol-2000)].”

While lamenting the deep inroads made by this menace of trafficking, it is then underscored in para 13 that, “Unfortunately, despite the protection afforded by the Constitution, the stringent laws and large number of treaties and conventions, commercial sexual exploitation with its concomitant human rights abuse is expanding multi-fold. The human rights discourse is profoundly silent on this grave issue. Such exploitation is now not confined to conventional brothels, but is spreading everywhere including residential areas, hotels, clubs etc. as apparent in the present case. One cannot be oblivious of the fact that the ‘flesh trade’ today is evolving into varied forms with the advent of new technologies. This makes the strict enforcement of these laws even more challenging. The Parliamentary Standing Committee Report on the Immoral Traffic (Prevention) Amendment Bill, 2006 dated 23.11.2006 notes that there were about 30 lakh women in the prostitution trade. According to the National Crime Records Bureau, 5264 human trafficking cases were reported in India in 2018. Disturbingly, about 25 percentage of such cases were for the purposes of sexual exploitation for prostitution and child pornography. The commercialization of sexuality is seen as a part of the explanation for prostitution. It is seen as a worst expression of the unequal distribution of power between men and women. Despite the substantial role of poverty in promoting sex commerce and human trafficking, the complexities of cultural values, attitudes and practices towards sex deserve serious consideration as well. The multi pronged approach to gender reforms – one that ranges from institutional education to grass-root activism – will provide the rupture in the tradition of a perverted imagined values towards sexuality.”

More significantly, it is then very rightly pointed out in para 15 that, “The High Courts of several states have not only recognized the menace of human trafficking but also taken up cases for strengthening the Institutional Machinery and various statutory agencies mandated by various laws. The High Court of Delhi in Bachpan Bachao and Ors. vs. Union of India (UOI) and Ors. ILR (2010) Supp (5) Delhi 376, High Court of Gauhati (Agartala Bench) in Tara Das vs. State of Tripura 2009 (1) Crimes 745 (Gau.) and High Court of Gujarat in Sahyog Mahila Mandal and Ors. vs. State of Gujarat and Ors 2004 GLH (2) 236 : (2004) 2 GLR 1764 have delved into issues of human trafficking, prostitution and its implications on the society. It has been emphasized on the fact those courts and other instrumentalities of the State have to deal with these issues in a sensible manner and there is a need to come out of stereotype attitude. Even if the accused had a limited role in selling the victims or in the prostitution business, no leniency can be shown to him inasmuch as he played a major role in the racket to push the helpless and innocent girls into prostitution. If any leniency is shown for committing such heinous crime, like forcing a girl into prostitution, it would amount to an affront to the statutes which govern the field and, more importantly, the Constitution of India.”

Most significantly, no words are then minced to say in simple and straight language in para 17 that, “The kingpins behind such sex rackets exert considerable influence in the area and are bound to intimidate the victims. More importantly, the safety and security of the witnesses is a major concern, especially in view of the fact that these are organized crime syndicates. The nature of crime is such that grant of bail will only embolden such hardened criminals, who keep evading the law and punishment, to perpetuate such heinous crimes. The complex and troubling issue as emerged in the instant case, in essence, demonstrates a conflict between collective morality of the society and markedly skewed legislations which mismatches the culpability of the participants in question (i.e. service provider, facilitator) and the recipient of the services. Though it involves clandestine and unlawful trafficking of girls but the law makers have missed the opportunity to prescribe a stringent punishment regime, even though the present offence is far more heinous than drug trafficking. There seems to be an all-pervasive puritan, moral, anti-prostitution posture of the Government, but in practice, there is a yawning gap between the law and its enforcement which results in abysmally low conviction rates.”

In essence, what is then chiefly mentioned in para 18 is that, “The principal accused, other accomplices and the co-accused, namely, Ibrahim Khan, Ruksar Begum, Ajay Bihari, Sunil Kumar Moharana, Keshab Sahoo, Aluddin Khan, Prashant Kumar Pradhan have already been granted bail by this court. This court is, therefore, constrained to grant bail to the accused in the instant case on the grounds of parity alone.”

Finally, para 19 then concludes by holding that, “In view of the facts and circumstances of the case as discussed above, it is directed that the petitioner may be enlarged on bail on some stringent terms and conditions as deemed just and proper by the learned S.D.J.M, Bhubaneswar. It is, however, clarified that the above observations shall not come in the way of a fair trial before the Ld. Trial Court and it will proceed to decide the matter on its own merits, uninfluenced by any of the observation made hereinabove. The bail application is accordingly disposed of.”

In conclusion, the bottom line of this latest, landmark and extremely laudable judgment is that it is high time and now the offence of girl trafficking must be taken most seriously! It very rightly laments that this offence is more serious than drug trafficking yet ironically less stringent. It also very rightly cites in para 14 the Report of the Committee on Amendments to Criminal Law which was headed by Justice JS Verma (Retd) and which submitted its report on 23.01.2013 stating that human trafficking is no less a serious crime than drug trafficking. It is high time and now our law makers must take the initiative to make offence of girl trafficking a more serious crime than drug trafficking and so hugely increase the quantum of punishment and fine so that it can act as a powerful deterrent to offenders!

Sanjeev Sirohi

Bombay HC Stays Multiple FIR Against Arnab Goswami

Posted on | by Sanjeev Sirohi | Leave a Comment on Bombay HC Stays Multiple FIR Against Arnab Goswami

                                           In a major landslide victory for the media and for the journalists who are rightly considered as the fourth pillar of democracy apart from the executive, legislative and judiciary, the Bombay High Court in a most recently pronounced judgment titled Arnab Ranjan Goswami Vs State of Maharashtra and others in Criminal Writ Petition LD-VC No. 37/2020 in exercise of its criminal appellate jurisdiction delivered on June 30, 2020 very commendably, very courageously and very convincingly while giving cogent reasons granted interim relief to Arnab Goswami who is a well acclaimed and well respected journalist and is also anchor and Chief Editor of Republic TV by staying the two FIRs filed by Mumbai police against him under Sections 153, 153A, 153B, 295A, 500, 504, 505(2), 506, 120B and 117 of the IPC over alleged communication of the incidents of Palghar lynching. The Bench of Bombay High Court comprising of Justice Ujjal Bhuyan and Justice Riyaz Chagla very rightly observed in this latest, landmark and extremely laudable judgment that, “Prima facie no case was made out against him.” The Bench had reserved the order on the petitions on June 12.

                                 It may be recalled here that earlier even the Supreme Court had very rightly quashed the multiple FIRs filed in various States and had confined the investigation only to the FIR lodged against Arnab Goswami in Mumbai. The Apex Court Bench comprising of Justice DY Chandrachud and Justice MR Shah had also granted him interim protection from arrest and had given Arnab the liberty to move the Bombay High Court with respect to quashing of FIR. Now Bombay High Court too has ensured that full justice is done with a fearless journalist like Arnab Goswami who enjoys an impeccable reputation all over!

                                       Needless to say, it is most heartening to note that a  Division Bench of Bombay High Court did not dither from launching a most scathing attack against victimizing fearless journalists by observing in simple, straight but forceful language in para 67  that, “We cannot have a Damocles sword hanging over the head of journalist while conducting a public debate. India is now a mature democracy. Seventy years into our republic we cannot be seen to be skating on thin ice so much so that mere mention of a place of worship will lead to animosity or hatred amongst religious communities causing upheaval and conflagration on the streets. Subscribing to such a view would stifle all legitimate discussions and debates in the public domain.” This is a big victory not for just one journalist Arnab alone but for the entire fraternity of journalists as a whole but yes, Arnab has to be commended, complimented and congratulated for leading from the front in taking the bull by the horns knowing fully well the dangers that lay ahead!

                                           While on the one hand, senior advocates Harish Salve and Dr Milind Sathe appeared on behalf of the petitioner i.e. Arnab Goswami, we saw how on the other hand senior advocates Kapil Sibal and Raja Thakare appeared for the State. Salve and Dr Sathe submitted that the FIRs were politically motivated with an attempt to muzzle critical voices against the Maharashtra government. Salve rightly argues in defence of petitioner that, “The transcripts of the telecast would have to be read as a whole; in other words, in its entirety. There should be no cherry picking of sentences from here and there and then say that this sentence is communal and therefrom an offence of provoking or inciting communal disharmony is committed.” It is a no-brainer that the very freedom of journalist to do independent journalism was at stake here which makes this case so all important!

                                    While setting the background, it is pointed out in para 3 that, “Petitioner is a journalist. He is the Editor-in-chief of an English television news channel called Republic TV and a Hindi television news channel called Republic Bharat or R. Bharat. Petitioner hosts various news shows on both the channels. He is also the Managing Director of ARG Outlier Media Pvt. Ltd., the company which owns and operates both the channels.”

                                           While elaborating on the facts of the case, it is then stated in para 4 that, “On 16.04.2020 there was a broadcast on Republic TV regarding an incident which took place on 16.04.2020 at Gadchinchale village of Palghar district in the State of Maharashtra. In this unfortunate incident three persons including two Sadhus were brutally lynched and killed by a mob allegedly in the presence of police and forest guard personnel. This incident was widely reported in the print and electronic media including by the news channels of the petitioner. On 21.04.2020 petitioner hosted a debate on R. Bharat regarding the said incident. According to the petitioner, a video recording of the said incident is in the public domain. In the debate, petitioner questioned the alleged tardy investigation into the incident and also the alleged attempt by authorities in the State Government to suppress the gravity of the said incident despite the incident happening in the presence of police personnel. Further, petitioner questioned the response or rather the silence of the Indian National Congress and its President Smt. Sonia Gandhi on the said incident and wondered aloud as to whether it was because the victims were Hindu Sadhus.”

                                     More alarmingly, it is then revealed in para 5 that, “Following the above broadcast, a large number of First Information Reports (FIRs) came to be lodged against the petitioner in various states of the country by activists and supporters of Indian National Congress. According to the petitioner all the FIRs were filed within a short span of time based on identical cause of action and appeared to be part of a well coordinated, widespread, vindictive and malicious campaign launched by the Indian National Congress (for short ‘the Congress’ hereinafter) and by its activists to harass and punish the petitioner for making statements and allegations against the Congress and its members, particularly its present President for their response or rather silence on the above incident. All these FIRs alleged commission of offence by the petitioner under various provisions of the Indian Penal Code, 1860 (‘IPC’ for short), such as, sections 153, 153A, 153B, 295A, 298, 500, 504, 505, 506, 511 and120B. According to the petitioner, a campaign for his arrest was launched in the social media.”

                                        Be it noted, it is then narrated in para 6 that, “The first of the FIRs was lodged before Sadar Police Station, Nagpur by respondent No. 3 who is a Cabinet Minister of Maharashtra and a prominent leader of the Congress party. This FIR was lodged on 22.04.2020 and was registered as FIR No. 238 of 2020.”

                                       What is worse is that petitioner who is a journalist was himself physically attacked as revealed in para 7 which states that, “Petitioner has stated that on 23.04.2020 between 12:30 a.m. and 1:00 a.m. while he and his wife were returning home by car from his news studio at Worli, Mumbai, they were attacked by two persons on a motorcycle. When the assailants were confronted by the security personnel of the petitioner, the two of them had alleged to have disclosed their identity as members of the Congress. In this connection petitioner lodged FIR before the N.M. Joshi Marg Police Station on 23.04.2020 which has been registered as FIR No. 148 of 2020 under sections 341, 504 and 34 IPC.” In addition, what is most despicable is that multiple FIRs were lodged against him in different states! This is nothing but “an abuse of the due process of law”!

                             As it turned out, it is then envisaged in para 19 that, “Dr. Milind Sathe, learned senior counsel for the petitioner submits that petitioner has questioned two FIRs in this proceeding as being an abuse of the process of law and driven by ill motive towards the petitioner to cause harassment and intimidation to him due to political animosity. The first FIR i.e., FIR No. 238 of 2020 was initially registered in the Sadar Police Station, Nagpur and subsequently transferred to N.M. Joshi Marg Police Station, Mumbai on orders of the Supreme Court where it has been re-numbered as FIR No. 164 of 2020. This FIR pertains to a broadcast on R. Bharat on 21.04.2020 which was anchored by the petitioner. It related to an incident of lynching of two Sadhus by a mob in front of police personnel on 16.04.2020 at a place in Palghar district (referred to hereinafter as “the Palghar incident”). The second FIR being FIR No. 137 of 2020 was registered in the Pydhonie Police Station, Mumbai pertained to an incident of a huge crowd gathering in front of the Jama Masjid, Bandra in violation of lockdown norms on 14.04.2020.”

                                 To put things in perspective, it is then observed in para 28 that, “At the outset we may advert to the judgment of the Supreme Court in the case of the petitioner dated 19.05.2020. The core issue before the Supreme Court and which was the basic concern of the Supreme Court was the lodging of multiple FIRs and complaints against the petitioner in various states arising from the same cause of action i.e., the programme which was telecast on R. Bharat on 21.04.2020 relating to the Palghar incident. At the time of passing of the interim order by the Supreme Court on 24.04.2020, one of the principles that was considered was the need to ensure that the criminal process did not assume the character of a vexatious exercise by the institution of multifarious complaints founded on the same cause of action in multiple states.”

                                   While stating the obvious, it is then stated in para 28.1 that, “At the time of hearing, Supreme Court had drawn the attention of learned counsel for the respondents to the fact that the FIRs which were filed in various states by persons professing allegiance to the Congress party prima facie appeared to be reproductions of the same language and content. Responding to this, Mr. Sibal submitted that the Court might as well quash all other FIRs and allow investigation into the FIR which was transferred to the N.M. Joshi Marg Police Station to proceed in accordance with law.” This clearly shows how a well planned conspiracy was hatched against the petitioner who is a well reputed journalist to get him wrangled in many cases!

                                          On the question of second FIR, it is very rightly and aptly pointed out in para 28.2 that, “Supreme Court referred to its decision in T.T. Anthony Vs. State of Kerala, (2001) 6 SCC 181, where it was held that there can be no second FIR when the information concerns the same cognizable offence alleged in the first FIR. It was held that barring situations in which a counter case is filed, a fresh investigation or a second FIR on the basis of the same or connected cognizable offence would constitute an abuse of the statutory power of investigation and may be a fit case for exercise of power either under section 482 Cr.P.C. or Articles 226/227 of the Constitution.”

                                        To be sure, this stands further corroborated by para 28.3 which states that, “Supreme Court referred to its subsequent decisions on the above issue and applied the same to the case of the petitioner who faced multiple FIRs/complaints in diverse jurisdictions arising out of one and the same incident i.e., broadcast by the petitioner on 21.04.2020 in R. Bharat relating to the Palghar incident. On perusal of the FIRs and complaints Supreme Court noted that those were worded in identical terms leaving no manner of doubt that an identity of cause of action formed the allegations levelled against the petitioner on the basis of the programme which was broadcast on 21.04.2020; the language, content, sequencing of paragraphs and their numbering were found to be identical.”

                                            To top it all, the Bench then rightly points out in para 28.4 that, “Supreme Court noted  that petitioner is a media journalist. Exercise of journalistic freedom lie at the core of speech and expression protected by Article 19(1)(a). Airing of views on television shows which the petitioner hosts is in the exercise of his fundamental right to speech and expression under Article 19(1)(a). Supreme Court observed that India’s freedoms will rest safe as long as journalists can speak to power without being chilled by a threat of reprisal. Though exercise of that fundamental right is not absolute, but to allow a journalist to be subjected to multiple complaints and in pursuit of his remedies to traverse multiple states and jurisdictions when faced with successive FIRs and complaints bearing the same foundation would have a stifling effect on the exercise of that freedom. Though the right of a journalist under Article 19(1)(a) is no higher than the right of a citizen to speak and express, we as a society should never forget that one cannot exist without the other. Free citizens cannot exist when the news media is chained to adhere to one position.”

                                As if this was not enough, it is then further held in para 64 which came as a further vindication for the  petitioner that, “On an overall reading of the FIR, statement of the informant and transcript of the broadcast, it would be wrong to say that petitioner had made the statements in the broadcast with a view to defame or insult the feelings of any religious group or community. The tenor of the programme was petitioner trying to find out as to who were the people or which were the forces trying to derail or defeat the lockdown and encouraging violation of social distancing norms. A mention is made by the petitioner of the role played by one Vinay Dubey, a Nationalist Congress Party activist having tweeted calling upon the migrant workers to congregate. Though the petitioner stated as a matter of fact that the crowd had gathered near the Jama Masjid, Bandra, he clarified his statement by saying that if such an incident had taken place outside a temple, he would have said the same thing. In such circumstances, to allege or impute any communal motive to what the petitioner had commented would be a distortion of the narrative. Prima facie, no offence as alleged can be said to have been committed by the petitioner.”

                                          Finally, it is then held in the last para 69 that, “Accordingly and in the light of the above, the following orders are passed:

(1)         This petition is admitted for hearing;

(2)         Since all the parties are represented, issuance of notice stands obviated. However, office of the Attorney General of India be notified as regards challenge to vires of sections 153A and 153B(1) IPC;

(3)         All further proceedings in FIR No. 164 of 2020 before the N.M. Joshi Marg Police Station, Mumbai and FIR No. 137 of 2020 before the Pydhonie Police Station, Mumbai shall remain suspended; and

(4)         Interim order passed on 09.06.2020 to the effect that no coercive steps shall be taken against the petitioner vis-à-vis the above two FIRs shall continue till disposal of this petition.”

                                                    To sum up, this bold, brilliant and blunt judgment of a Division Bench of two Judges of Bombay High Court  has come as a big respite for all those fearless journalists who are repeatedly being targeted on one pretext or the other by political leaders, political workers, mafias and criminals! If Courts will not speak up for such fearless journalists like Arnab Goswami then who else will? No doubt, this most commendable, convincing and courageous decision of Bombay High Court has sent the right message to all such political tribe and their ilk that Courts cannot be allowed to ever become a convenient instrument or a potent weapon to silence such fearless, independent and forward looking journalists like Arnab Goswami by filing multiple FIRs in different States!

Sanjeev Sirohi

Insolvency and Bankruptcy Code 2016 : Short overview and procedure

Posted on | by Akshita Sodhi | Leave a Comment on Insolvency and Bankruptcy Code 2016 : Short overview and procedure

 

This article is written by Akshita Sodhi,

Fourth year law student

lloyd law college.

 

The code of Insolvency and bankruptcy was passed in the year 2016. This code was enacted with the purpose to provide fast relief to creditors in case their debtors become insolvent. This code provides a time bound process to provide the relief to the debtors.

 

It must be noted that recently in the wake of COVID- 19, a new section(section 10 A)  in IBC 2016 a new section is inserted for the suspension of initiation of insolvency proceedings against the corporate debtor. But this provision shall be applicable for any default arising after 25th march 2020 up to the period of six months.

 

What is Insolvency?

Insolvency is a state of financial and economic distress where the debtor becomes insolvent, i.e., he becomes unable to pay his debts to the creditor. Under IBC Code, 2016, Corporate Insolvency and bankruptcy proceedings can be initiated by the creditor. against a debtor on the minimum amount of default of Rs 1 lakh.

 

What is bankruptcy?

Bankruptcy is the order given by the court for the debtor where the court initiates legal proceedings for the debtor to repay his debts.

 

What is liquidation?

The liquidation is the process of selling goods and assets of the bankrupt person or entity to let the debtor to repay his debt.

 

Applicability of the act.

This act is applicable to all the companies incorporated under Companies Act, 2013, or the company incorporated under any act applicable during the due course of time, limited liability partnerships incorporated under  limited liability partnership act, 2013, partnerships firms and individuals or any such other body incorporated under any act or law for the time being in force.

 

Who can file an application under the act?

Corporate insolvency resolution proceedings can be initiated by a financial creditor, operational creditor or by the corporate debtor itself.[1]

 

Corporate person

Co-operate person includes company registered under the companies act 2013, Limited Liability Partnership (llp), a partnership firm, or any other person incorporated with limited liability under any law at the time being in force except financial service providers.[2]

 

Adjudicating authority under the Code

NCLT(National Company Law Tribunal), DRT(Debt recovery tribunal). NCLT is the adjudicating authority for corporate debtors and personal guarantees. DRT is the adjudicating authority for individuals and partnership firms.

 

Appellate Court

If someone is satisfied by the order of NCLT, an application can also be filled in NCLAT within 30 days of receipt of such order. If the debtor is not satisfied by the order of  NCLAT, he can file an application in the supreme court within 45 days of such order. 

 

Creditor

Creditor is the one who credits money/goods to the debtor. In other words, Creditor is the one to whom any person/ entity/ company owes money.

 

Debtor

Debtor is the person who owes the debt. In short, the debtor is the one to whom the creditor gives money.

 

Debt

Debt is the obligation to pay or repay the money to the one who lends you the same.

 

Financial creditor

In order to understand financial creditors, it is crucial to first know what is ‘financial debt’.

Financial creditor is the one to whom a financial debt is owed and includes a person to whom such debt has been legally assigned or transferred.[3]. The relation between the financial creditor and debtor is purely of cash.  Example- loan given by bank, the person who give loan on interest etc.

 

Operational creditor

In order to understand the concept of operational debtor, it is important to know the meaning of operational debt, ‘operational debt’ means a claim in respect of the provisions of goods or services including employment or a debt in respect of the repayment of the dues arising under any law for the time being in force and payable to the Central Government, any State Government or any local authority.[4].

In short, an operational creditor is the one who has any amount due towards the debtor and the amount is due because of  supply of goods, services including government dues, taxes etc.  Examples of operational creditors are employers of the company, service providers of a company etc.

In a recent judgement, the Supreme Court has cleared that, operational debt is only confined to goods, services, government and employees dues and home buyers don’t fall in the ambit of this definition.

 

IRP

insolvency resolution professional appointed by the court for resolving the co-operate insolvency resolution process initiated against the debtor.

 

Time Period for completing insolvency proceedings

180 days( 90 days-extended period can also be given on the discretion of the court. )

 

PROCESS INVOLVED UNDER INSOLVENCY AND BANKRUPTCY CODE 2016

 

              Sending of demand notice to the defaulter giving him a 10 day notice period to clear his dues.

     

                                                           

Initiation of corporate insolvency resolution process, i.e. filing of application against the debtor if he doesn’t clear dues within 10 days of receipt of the demand notice or brings it notice to the creditor about the existence of any previous suit or arbitration proceedings filed or pending  before the sending of notice.

                                                       

 Within 14 days of the receipt of the application, the court can either accept it if it is complete or reject it if it is incomplete.

                                                           

Appointment of Insolvency resolution professional by the court as proposed by the creditor.

                                     

After the appointment of interim resolution professionals by the court, all the rights of the directors, partners etc shall be vested in the hand of appointed interim resolution professionals.

Moreover all the affairs of the debtor shall be managed by the interim resolution professionals. Appointed managers or auditors or any other financial institutions shall report to the appointed  interim resolution professionals and provide all the details if so needed by him or he asks them for the same.

                                                        

All the acts/deeds of the debtor shall be executed in the name of  the appointed interim resolution professional. Moreover he should also have control over the financial information including balance sheet, ledger or any other document specified.

                                                     

All the information relating to assets, property of the bankrupt debtor is being collected by the interim resolution professional. He shall also receive and pursuant claims made by the other creditors as well pending against the bankrupt debtor.

                                                     

          Formation of committee of creditors by the interim resolution professional.

                                                     

Within 7 days of the formation of the committee of creditors, the first meeting shall be held and the members of the committee of creditors will decide whether they want the appointed interim resolution professional to be resolutional professional for further proceedings or whether they want to appoint new resolutional professional for further proceedings by 75% majority. The decision of the committee shall be informed to the adjudicating authority and the interim resolution professional as well.

                                                       

Formation of resolution plan by the resolutional applicant and submission of the same to the resolutional professional.

   

                                                         

 

The resolutional professional will check the resolution plan and the same is also being submitted to the committee of creditors and should also be approved by the committee of creditors by more than 75% voting.

                                                              

 

The resolution plan is then submitted to the court.

                                                     

 

If the court approves the resolution plan, the order by the court shall be binding on corporate debtors and all its employees as well.

                                                         

The corporate debtor can also make an appeal to the appellate court if he is not satisfied by the decision of the court.

                                                             

                                                           

The court can even order for the liquidation process for the co-operate as it deems fit or if the same is being requested by the resolutional professional( in discussion and voting with committee of creditors) before the submission of resolution plan.

                                                       

 

The liquidation process is initiated by the court in the same easy, the resolution process is initiated.

 

Endnotes:-

[1]-Section 6 of IBC code 2016.

[2]- Section 3(7) of IBC code 2016

[3]-Section 5(7) of IBC code 2016. 

[4]-Section 5(21) of IBC code 2016.

An overview on Corruption: A Menace in India

Posted on | by Rishabh Gupta | Leave a Comment on An overview on Corruption: A Menace in India

Rishabh Gupta

(ICFAI Law School)

Everyone censures corruption at a societal stage but that doesn’t mean that anyone has escaped from the flu of corruption. it’s not an infection in one country. People worldwide are involved within the act of corruption. India is not any exception thereto. Corruption in India has even crossed the alarming stage. From the officials of the very best rank to a peon most are corrupt.

It is a term known to all or any folks precisely meaning an illegal, immoral or unauthorized act wiped out due course of employment. But literally it means “Inducement (as of a public official) by improper means (as bribery) to violate duty (as by committing a felony)”.

Corruption may be a termite in every system. Once it enters the system, it goes on increasing. Today it’s rampant and has gradually become routine. Worldwide, bribery alone is estimated to involve over 1 trillion US dollars annually.

This shows how big a drag is corruption. it’s indeed the most important challenge ahead of any government because the system itself is handicapped as its own employees are slaves of another. within the author’s view corruption is that the root explanation for all other problems that a rustic face. allow us to check out it with regard to India. Many big problems like poverty, unemployment, illiteracy, pollution, external threats, underdevelopment etc. are posed ahead of the Indian government. But having a glimpse in the least these problems faced by India, one might notice that corruption plays a crucial role in making these problems even bigger. India remains facing poverty thanks to corruption.

The government and its employees all are corrupt therefore the schemes floated by the govt for the betterment of poor aren’t properly implemented and simply because corruption comes into play the grant advanced to the poor doesn’t reach them and that they remain an equivalent then does the matter of poverty. an equivalent principle applies to the matter of external threats. India’s neighbouring countries also are a threat to the country and its sovereignty. due to the officials or maybe citizens being corrupt either for his or her personal gain or enmity towards their home country the neighbours convince be even more dangerous. Such officials may leak important information to the neighbours which provides them a whip hand. an equivalent was hinted post 26/11 attack in India. consistent with the sources the attack couldn’t are possible without the assistance of the insiders.

Corruption isn’t just limited to administration. it’s considerably prevalent even in legislation and judiciary such a lot in order that it’s probably the most important challenge and wishes to be eradicated from its grass root. For an equivalent purpose the Prevention of Corruption Act, 1988 has been enacted.

This Act incorporated the Prevention of Corruption Act, 1947, the legal code Amendment Act, 1952, and sec. 161 to 165-A of the Indian legal code. The Prevention of Corruption Act, 1988, thereby widened the coverage, strengthened the provisions and made them simpler .

This Act especially defines the act of bribery, prescribes its punishment and also deals with the intricacies of law like appointment of special judges, their powers, summarily triable cases etc.

The Act describes, defines, discriminates different forms and stages of corruption and prescribes punishment for an equivalent . Under Section 7 of the Act, any employee expecting or accepting any gratification aside from his legal remuneration from a person to favour or disfavour or service or disservice the other person shall be punishable with imprisonment not but 6 months but may reach 5 years and also with fine.

Section 8 deals with the cases of employee s accepting gratification by illegal means to influence public servant. an equivalent provision prescribes punishment up to five years imprisonment and fine. the utmost punishment prescribed under the Act is up to seven years imprisonment and fine under Section 14 that deals with those habitual of getting involved within the act of corruption in one or the opposite way.

Under this provision any employee committing an act of: –
1. Accepting gratification by illegal means to influence employee as addressed under Section 8 or
2. Taking gratification for exercise of private influence as dealt under Section 9 or
3. Act of abetment of an offence under sections 7 or 11 as prescribed under Section 12 is punishable with the punishment prescribed.

The Act has been alright enacted to ascertain thereto that the conviction rate shouldn’t be very less thanks to legal intricacies coming within the way of justice. Though an honest enough legal process is about up to escape fake cases. as an example, Section 19(1) requires previous sanction of the employing authority for a case under this Act. But clause (3) of an equivalent provision states that any order gone by a special judge might not be reversed or put aside thanks to any error or omission of such sanction. The anti- corruption law is formed more stringent by the insertion of section 24. This section states that any statement given by the bribe giver shouldn’t subject him to any prosecution. The existence of this section ensures the bribe giver that any statement made by him regarding giving bribe to any employee isn’t getting to lead him in any legal trouble. This provision is therefore inserted to ascertain thereto that absence of such statements by bribe givers which are conclusive evidences doesn’t cause acquittal in such cases.

But still the conviction rate in corruption cases is extremely less. Therefore, in my view the Swedish concept of Ombudsman be incorporated in Indian system. an equivalent was recommended by M.C. Setalvad, Former Attorney General of India way back in 1962. So, an Administrative Reforms Commission under the Chairmanship of Morarji Desai was found out to research and recommend enshrining the concept of Ombudsman in India. The commission placed definite suggestion before the govt. in its interim report in October. 1966. The commission recommended to categories of Ombudsman for India: a Lokpal to research actions of ministers and secretaries and one or more Lokayuktas to research the actions of officials below the rank of secretaries. the advice of the commission was accepted by the govt. and a Bill providing for Ombudsman was introduced in Lok Sabha in May 1968. The Bill was referred to as “The Lokpal and Lokyuktas, 1968”. quite four decades have passed but still the Indian Parliament has not passed a Central Legislation regarding this. This shows lack of political will to eradicate corruption from its roots from Indian system. But some Indian states namely Orissa, Rajasthan, Maharashtra, Bihar, Madhya Pradesh are some amongst many to pass the Lokpal bill as a state legislation. But thanks to absence of a Central Legislation the State Legislations couldn’t make this law more stringent. For an equivalent reason a Lokpal isn’t vested with many powers and hence unable to act effectively.

Corruption laws in India
Public servants in India are often penalized for corruption under the Indian legal code , 1860 and
the Prevention of Corruption Act, 1988. The Benami Transactions (Prohibition) Act, 1988
prohibits benami transactions. The Prevention of cash Laundering Act, 2002 penalises public
servants for the offence of cash laundering. India is additionally a signatory (not ratified) to the UN
Convention against Corruption since 2005. The Convention covers a good range of acts of
corruption and also proposes certain preventive policies.
Key Features of the Acts associated with corruption
Indian legal code , 1860:
• The IPC defines “public servant” as a government employee, officers within the military,
navy or air force; police, judges, officers of Court of Justice, and any agency
established by a central or state Act.
• Section 169 pertains to a employee unlawfully buying or bidding for property. The
public servant shall be punished with imprisonment of upto two years or with fine or
both. If the property is purchased, it shall be confiscated.
• Section 409 pertains to criminal breach of trust by an employee. the general public servant
shall be punished with captivity or with imprisonment of upto 10 years and a
fine.
The Prevention of Corruption Act, 1988
• additionally to the categories included within the IPC, the definition of “public servant”
includes office bearers of cooperative societies receiving aid from the government, employees of universities, Public Service Commission and banks.
• If a employee takes gratification aside from his legal remuneration in respect of an
official act or to influence public servants is susceptible to minimum punishment of six months and maximum punishment of 5 years and fine. The Act also penalizes a employee
for taking gratification to influence the general public by illegal means and for exercising his
personal influence with a employee .
• If a employee accepts a valuable thing without paying for it or paying inadequately
from an individual with whom he’s involved during a business transaction in his official capacity, he shall be penalized with minimum punishment of six months and maximum
punishment of 5 years and fine.
• it’s necessary to get prior sanction from the central or government so as to
prosecute a employee .
The Benami Transactions (Prohibition) Act, 1988
• The Act prohibits any benami transaction (purchase of property in alias of another
person who doesn’t buy the property) except when an individual purchases property in his
wife’s or unmarried daughter’s name.
• a person who enters into a benami transaction shall be punishable with imprisonment
of up to three years and/or a fine.
• All properties that are held to be benami are often acquired by a prescribed authority and no
money shall be purchased such acquisition.
The Prevention of cash Laundering Act, 2002
• The Act states that an offence of cash laundering has been committed if an individual may be a party to any process connected with the proceeds of crime and projects such proceeds as
untainted property. “Proceeds of crime” means any property obtained by an individual as a
result of criminal activity associated with certain offences listed within the schedule to the Act. person is often charged with the offence of cash laundering as long as he has been charged with committing a scheduled offence.
• The penalty for committing the offence of cash laundering is rigorous imprisonment
for three to seven years and a fine of upto Rs 5 lakh. If an individual is convicted of an
offence under the Narcotics Drugs and Psychotropic Substances Act, 1985 the term of
imprisonment can extend upto 10 years.
• The Adjudicating Authority, appointed by the central government, shall decide whether
any of the property attached or seized is involved in concealment . An Appellate
Tribunal shall hear appeals against the orders of the Adjudicating Authority and the other
authority under the Act.
• Every depository financial institution , financial organization and intermediary shall maintain a record of all transactions of a specified nature and value, and verify and maintain records of all its
customers, and furnish such information to the required authorities.
Process followed to research and prosecute corrupt public servants
• The three main authorities involved in inquiring, investigating and prosecuting corruption
cases are the Central Vigilance Commission (CVC), the Central Bureau of Investigation
(CBI) and therefore the state Anti-Corruption Bureau (ACB). Cases associated with concealment by public servants are investigated and prosecuted by the Directorate of Enforcement and the Financial Intelligence Unit, which are under the Ministry of Finance.
• The CBI and state ACBs investigate cases associated with corruption under the Prevention of Corruption Act, 1988 and therefore the Indian legal code, 1860. The CBI’s jurisdiction is that the central government and Union Territories while the state ACBs investigates cases within the states. States can refer cases to the CBI.
• The CVC may be a statutory body that supervises corruption cases in government departments. The CBI is under its supervision. The CVC can refer cases either to the Central
Vigilance Officer (CVO) in each department or to the CBI. The CVC or the CVO
recommends the action to be taken against a employee but the choice to require any
disciplinary action against a official rests on the department authority.

Conclusion:
Corruption may be a big reason to stress for the Indian government. The Act is technically drafted during a beautiful way, but it’s not effectively come to the help of the govt to curb corruption. therefore, the punishment prescribed within the Act shall be much stricter to discourage the intending violators.

 

Calcutta HC Pulls Up State Police For Rampant Child Marriages

Posted on | by Sanjeev Sirohi | Leave a Comment on Calcutta HC Pulls Up State Police For Rampant Child Marriages

In a recent, remarkable and righteous decision, the Calcutta High Court just recently in ‘Court In Its Own Motion In Re: Contagion of Covid-19 Virus In Children Protection Homes (Through video conference) in W.P. 5327 (W) of 2020 while taking strict stock of flagrant child rights violations amidst the lockdown pulled up the State police on several accounts. Taking note of the affidavit of the Home Secretary, the Calcutta High Court observed that while there have been no instances of child trafficking, however, child marriages during this period in most of the districts have been rampant. This cannot be taken for granted and so the Calcutta High Court rightly took serious note of it!

To start with, we see that this latest, landmark and extremely laudable judgment delivered by a two Judge Bench of Calcutta High Court comprising of Justice Harish Tandon and Justice Soumen Sen on June 25, 2020 sets the ball rolling by first and foremost observing that, “The affidavit filed by the Additional Chief Secretary, Home Affairs Department and Home Secretary, report filed by the Secretary, Women and Child Development and Social Welfare Department and the affidavit filed by the Secretary, Health Department in Court today are taken on record.”

To put things in perspective, it is then pointed out that, “In the affidavit filed by the Home Secretary, district-wise details of the cases in relation to violation of child rights of all forms till 15th June, 2020 has been disclosed. Contrary to the earlier report, this affidavit spells out in detail and to the satisfaction of this Court the nature of the violation of child rights and the steps taken by the police authorities in connection with such reported cases. Most of the reports, state that there have been no instance of child trafficking, however, child marriage during this period in most of the districts have been rampant and with the assistance of the DALSA and the police authorities many of such child marriages could be prevented.”

Truth be told, the Bench then minces no words to hold that, “This alarming rise of child marriages during this lockdown period has given us a strong impression that these child marriages may be in the garb of child trafficking and we, accordingly, direct the Superintendent of Police of every districts to investigate into the cases regarding child marriage and to find out if such child marriages are for economic consideration or under the garb of child trafficking. It is needless to mention that the perpetrators of these child marriages should be dealt with in accordance with law and cases should be registered against them without any delay.”

While elaborating further, it is then pointed out in this judgment that, “The report in relation to North 24-Parganas, inter alia, has stated that cases of “other violation of child rights” are 124. We need to know the nature of such “other violation” and we direct the Home Secretary to file a report disclosing such “other violation of child rights” and the steps taken by the police against the violators.”

To be sure, it is then noted with concern by the Bench that, “We have received reports from the District Judges and the POSCO Courts that the investigating officers in most of the districts are delaying in production of the victim and/or filing application for recording of statement under Section 164 of the Criminal Procedure Code which only can enure to the benefit of the perpetrators of the crime.”

As it turned out, the Bench then directed that, “We direct the Superintendent of Police of all the districts to ensure that the victims are produced immediately and not later than 48 hours before the Magistrates for recording of statement under Section 164 of the Criminal Procedure Code. All delays attributable to the prosecution should be immediately addressed and all attempts should be made so that the progress of the trial takes place without any delay.”

While conceding the difficulties faced by the police, the Bench then states that, “We understand that during the lockdown period police officers and the public prosecutors are facing difficulty. But we find no reason for not ensuring the recording of statement of the victims under Section 164 of the Criminal Procedure Code.”
It is then also pointed out that, “We have received report from the District Judges which show that after our earlier order, in most of the cases statements under Section 164 of the Criminal Procedure Code has been recorded.” Also, it is then directed that, “The Superintendent of Police of all the districts must also ensure that there is no delay in investigation of the cases relating to child rights violation and charge-sheet are filed in time.”

Going forward, it is then pointed out that, “We have drawn attention to the learned Advocate General the report filed by the Superintendent of Police, Cooch Behar dated 22nd June, 2020 wherefrom it appears that 40 children have been recovered in the said district but apparently no FIR had been lodged against the perpetrators of the crime. Learned Advocate General has assured us that he would personally look into the matter and ensure that in all the districts immediate steps are taken for registration of FIR, once a complaint is received.”

As we see, the Bench then directs that, “We call for a report as to the steps taken by the police authorities in the district of Cooch Behar regarding the recovery of children from 1st January, 2020 till 22nd June, 2020.”

More significantly, while dwelling on the deficiencies, the Bench then observes that, “In one of our earlier order dated 21st April, 2020, we have recorded that the report shared by the Visitors and Principal Magistrates of the J.J.B.s and Chairperson of the C.W.C. would show the J.J.B.s are functioning under tremendous stress and the infrastructure is extremely inadequate. We have recently received reports from the Principal Magistrates of all the J.J.B.s functioning in the State, wherefrom we find the following deficiencies:

i.                  No chamber for the Principal Magistrate and other members of the Committee,

ii.               Lack of office space,

iii.            No separate room for vulnerable child witnesses,

iv.            No separate entrance for the C.C.L. and vulnerable witnesses,

v.               No official vehicle is assigned to the Principal Magistrate,

vi.            Lack of broad-band connection and inconsistent bandwidth,

vii.         Lack of hardware and software infrastructure required for audio video linkage,

viii.      Inadequate and/or no support staff like bench clerk, lower division clerk-cum-typist, counsellor etc.,

ix.            No separate provision of wash-room for female staff/members/lady officers,

x.               No separate room for counselling for the C.C.L.s and for sitting of social worker members,

xi.            Lack of maintenance of public toilets and wash-room of Principal Magistrates.”

It is then clarified that the aforesaid list is only illustrative but not exhaustive.

Having said this, the Bench then laments that, “We have time and again apprised the Secretary, Women and Child Development and Social Welfare Department, but it appears from the report that the situation has not improved and the J.J.B.s in almost all the districts are facing infrastructural deficiencies which certainly impedes the functioning of the J.J.B.s, as a result whereof the children are suffering.”

Of course, the Bench then notes with some satisfaction that, “The learned Advocate General has assured us that he would immediately take up the issue with the Home Secretary and on the adjourned date would apprise as to the steps taken to remove such deficiencies.”

As things stand, the Bench then says that, “The report filed by the Secretary, Women and Child Welfare Department discloses few cases of follow up action by way of phone call interventions which have brought succor to the family of the child and we hope that same kind of interventions would be made as and when occasion arises for the other children to safe-guard their interest. The said report also discloses the guidelines and the nature of information sought for as a follow-up action of children restored to families since March, 2020.”

What follows next is that the Bench then says that, “We would request the Secretary to submit a report afresh with regard to few cases of post-restoration follow-up of children to family on the adjourned date.”

Furthermore, the Bench then hastens to add that, “The report filed by the Secretary, Department of Health and Family Welfare shows that 75 children of the migratory workers have been found to be Covid-19 positive and subsequently they were referred to designated covid hospitals, samples were collected from asymptomatic children of migratory workers and 43 of such samples were reported as positive. Those 43 children were admitted at designated covid hospitals and as of now, those children have been discharged from such hospitals after recovery. These 43 positive children were mentioned as higher referral in the earlier report. However, considering the safety of the children we would like to know if any random test was carried out of the children of the migratory workers and if so, disclose the result of such random test with specific comment as to whether anyone of them tested positive, save and except the particulars already disclosed.”

What’s more, the Bench then notes seriously that, “We have recently come across a newspaper report from the Ananda Bazar Patrika wherefrom it appears that one female minor girl belonging to North 24 Parganas has been recently recovered by the Maharashtra police with the help of the N.G.O.s. The trafficking took place in the year 2018 and although complaints were made against three traffickers, but it is reported that no attempt was made by the Bagda Police Station in recovering the female child.”

To say the least, the Bench then observes that, “We have shared the news item with the learned Advocate General. We call for a report to be filed with regard to the investigation of the said child trafficking case from the date of lodging of the complaint till date, together with an explanation for not being able to recover the child until intervention of the Maharashtra police.”

Not stopping here, the Bench then further observes that, “We also brought it to the attention of the learned Advocate General that 13 C.C.L. boys from Dhruba Ashram Observation Special Home had escaped and was culminated in registration of FIR vide Belghoria Police Station case no. 138 of 2020 dated 8th March, 2020 under Section 363 of the Indian Penal Code. Two of such C.C.L. boys have surrendered but the fate of the 11 C.C.L. boys are still unknown.”

While expressing unhappiness with the police functioning, the Bench then says in simple and straight language that, “We are not happy with the investigation. The Police has not yet been able to recover the said 11 C.C.L. boys. We call for a detailed report with regard to the said police station case and progress of the investigation, on the adjourned date.”

Finally, it is then held that,“
The matter stands adjourned till 2nd July, 2020 (at 2.00 P.M.). At the request of the learned Advocate General we shall take up compliance of our directions in relation to districts of Cooch behar, Darjeeling, Jalpaiguri, Kalimpong and Malda on the next date. A video conference shall be held with the Secretary (Social Welfare) under the Andaman and Nicobar Administration, Port Blair and all stake holders are directed to be present through video linkage.”

To conclude, the sum and substance of this notable order till now by a two Judge Bench of Calcutta High Court even though it has yet to be finally pronounced is that child marriage has to be taken most seriously. It cannot be taken for granted. There has to be zero tolerance for child marriages which is an old social evil. Those who dare to indulge in it in any manner must be made to face the music of law under all circumstances!  This explains why the Calcutta High Court has gone so minutely into this! Very rightly so!

Sanjeev Sirohi