Author: Sanjeev Sirohi

Advocate

Protection To Judges In Respect Of Actions Taken/Words Spoken While Discharging Judicial Functions Is Absolute: Gauhati HC

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Without mincing any words and without sparing any room for doubt of any kind whatsoever, the Gauhati High Court most recently on September 15, 2020 in a latest, landmark and laudable judgment titled Rahendra Baglari v. Sub-Divisional Judicial Magistrate (M) & Ors in Case No. : WP(C) 3057/2020 rapped a writ petitioner for adjoining a Judicial Magistrate and the High Court and its Registry as Respondents to his plea against the order passed by the said Magistrate. The Bench of Chief Justice Ajai Lamba of Gauhati High Court observed remarkably, resolutely and righteously that, “The protection available under the Judges (Protection) Act, 1985 is absolute and is available not only to a sitting Judge but also to an Ex-Judge in respect of the actions taken or words spoken by him while discharging his official or judicial functions.” Thus, we see that the deprecatory trend of impleading a Judge as a Respondent party and that too by his/her name, is not encouraged or appreciated by the Gauhati High Court and very rightly so! All the litigants must always be careful of this.

To start with, after noting in para 1 that, “The Court proceedings have been conducted through Video-Conferencing”, the ball is then set rolling in para 2 of this noteworthy judgment wherein it is observed that, “This writ petition has been filed to seek issuance of a writ in the nature of certiorari for quashing order dated 20.07.2020 whereby direction was issued to the petitioner to show cause as to why the dead cow was disposed of without informing the trial Court.

The petition also seeks quashing of order dated 31.7.2020 whereby the petitioner was asked to show cause as to why contempt proceedings be not initiated against him for not complying with order dated 28.07.2020 issued in connection to giving zimma of four seized vehicles in connection with Gingia PS case No. 92/2020.

For the reasons given below the controversy raised by passing of the impugned orders; or the issues that arise on account of judicial adjudication in passing of the impugned orders are not required to be referred to.”

To be sure, it is then revealed in para 3 that, “I have taken judicial notice of the fact that the petition has been filed by one Sri Rahendra Baglari, ASI, Gingia Police Station.

The respondents in the petition are:-

(1) Sub-Divisional Judicial Magistrate (M), Biswananth Chariali, who passed the orders impugned by virtue of this petition;

(2) Gauhati High Court through Registrar General;

(3) Registrar General of Gauhati High Court; and

(4) Sri Amarendra Hazarika who at the point in time when the impugned order was issued, was posted as Sub-Divisional Judicial Magistrate (M) in Biswanath Chariali, district Biswanath Chariali.

It is therefore, apparent that the writ petition is directed against a Judicial Magistrate who passed orders in his judicial capacity. The Sub-Divisional Judicial Magistrate has not only been impleaded by designation, but also by name so as to impute personal action.

Likewise, the Gauhati High Court and Registrar General have been impleaded as parties.”

No doubt, what the Gauhati High Court finds most baffling and most perplexing is then stated in para 4 that, “I fail to understand the purpose of impleading the Gauhati High Court or the Registrar General as respondents in the matter. Learned counsel for the petitioner also has not been able to justify impleading the High Court or the Registrar General.”

What we then see next is that it is stated in para 5 that, “So far as Sub-Divisional Judicial Magistrate is concerned, it is apparent that he passed the judicial orders while dealing with a judicial matter arising out of Gingia PS Case No. 92/2020.”

To put things in perspective, it is then stated in para 6 that, “At the outset, I would like to refer to paragraphs 9 and 10 of judgments rendered by Hon’ble Supreme Court of India in Anwar Hussain vs Ajay Kumar Mukherjee and others, AIR 1965 SC 1651 in context of provisions of Judicial Officers’ Protection Act, 1850. The said paragraphs 9 and 10 read as under:

“XXXXXXXXXXXXXXX

9. In this appeal, the only question raised is that in ordering the arrest of the respondent the appellant acted in discharge of his judicial duties, and he was on that account protected by the Judicial Officers’ Protection Act, 1850. Section 1 of the Act, in so far as it is material, provided:

“No Judge, Magistrate, Collector or any other person acting judicially shall be liable to be sued in any Civil Court for any act done or ordered to be done by him in the discharge of his judicial duty whether or not within the limits of his jurisdiction: Provided that he at the time, in good faith, believed himself to have jurisdiction to do or order the act complained of;”.

10. The statute is clearly intended to grant protection to Judicial Officers against suits in respect of acts done or ordered to be done by them in discharge of their duties as such officers. The statute it must be noticed, protects a Judicial Officer only when he is acting in his judicial capacity and not in any other capacity. But within the limits of its operation it grants large protection to Judges and Magistrates acting in the discharge of their judicial duties. If the act done or ordered to be done in the discharge of judicial duties is within his jurisdiction, the protection is absolute and no enquiry will be entertained whether the act done or ordered was erroneously, irregularly or even illegally, or was done or ordered without believing in good faith, that he had jurisdiction to do or order the act complained of. If the act done or ordered is not within the limits of his jurisdiction, the Judicial Officer acting in the discharge of his judicial duties is still protected, if at the time of doing or ordering the act complained of, he in good faith believed himself to have jurisdiction to do or order the act. The expression “jurisdiction” does not mean the power to do or order the act impugned, but generally the authority of the Judicial Officer to act in the matter Tayen v. Ram Lal, ILR 12 All 115.

XXXXXXXXXXXX”

(emphasized by me).”

Furthermore, it is then brought out in para 7 that, “I would also like to refer to contents of paragraph 14 of a later judgment i.e. (1999) 2 SCC 577, Savitri Devi vs. District Judge, Gorakhpur and others. Paragraph 14 reads as under:

“XXXXXXXXXXXXXX

14. Before parting with this case, it is necessary for us to point out one aspect of the matter which is rather disturbing. In the writ petition filed in the High Court as well as the special leave petition filed in this Court, the District Judge, Gorakhpur and the 4th Additional Civil Judge (Junior Division), Gorakhpur are shown as respondents and in the special leave petition, they are shown as contesting respondents. There was no necessity for impleading the judicial officers who disposed of the matter in a civil proceeding when the writ petition was filed in the High Court; nor is there any justification for impleading them as parties in the special leave petition and describing them as contesting respondents. We do not approve of the course adopted by the petitioner which would cause unnecessary disturbance to the functions of the judicial officers concerned. They cannot be in any way equated to the officials of the Government. It is high time that the practice of impleading judicial officers disposing of civil proceedings as parties to writ petitions under Article 226 of the Constitution of India or special leave petitions under Article 136 of the Constitution of India was stopped. We are strongly deprecating such a practice.

XXXXXXXXXXXXXX”

(emphasised by me).”

Significantly, it would be apt to mention here that para 8 then very rightly and remarkably mentions that, “Reference to Sub-section 1 of Section 3 of the Judges (Protection) Act, 1985 in verbatim is important and relevant. The provision reads as under:

“3. Additional protection to Judges.-(1) Notwithstanding anything contained in any other law for the time being in force and subjected to the provisions of sub-section (2), no court shall entertain or continue any civil or criminal proceeding against any person who is or was a Judge for any act, thing or word committed, done or spoken by him when, or in the course of, acting or purporting to act in the discharge of his official or judicial duty or function.

XXXXXXXXX”

It is apparent that sub-section (1) of Section 3 of Judges (Protection) Act, 1985 directs that no Court shall entertain any civil or criminal proceeding against any person who is or was a Judge for any act, thing or word committed, done or spoken by him, or in the course of, acting or purporting to act in the discharge of his official and judicial duty or function.

It is apparent on perusal of the impugned orders, and not disputed, that the Sub Divisional Judicial Magistrate (Respondent No. 1 and 4) was acting in discharge of his judicial duty while passing the impugned orders. The orders might be illegal, however, law provides appropriate remedies to the petitioner to challenge the said orders. The actions of the Judge, however, stand protected by virtue of the Judges (Protection) Act, 1985 (subject to the provisions of sub-section 2 of Section 3 of the Act of 1985).”

More significantly, it is then appropriately and absolutely made clear in para 9 that, “A conjoint reading and understanding of the Act of 1850 (supra) and the Act of 1985 (supra) make it clear that protection available to a Judge under Judicial Officers’ Protection Act, 1850 is in respect of any action taken in good faith; whereas the protection available under the Judges (Protection) Act, 1985 is absolute and is available not only to a sitting Judge but also to an Ex-Judge in respect of the actions taken or words spoken by him while discharging his official or judicial functions.

If in passing every wrong or illegal judicial order, the concerned Judge is sued before the higher judicial forum, it shall result in demoralising the judicial officers, particularly, at the adjudicating level, other than the public losing faith in the judiciary. In case a purported illegal order is passed on wrong facts, law always provides for filing of appeal, revision or writ petition against the ORDER, however, not by impleading the Judge to seek his accountability. It is for this purpose that the Judges have been given protection by legislations such as Act of 1850 (supra), and Act of 1985 (supra).”

Most significantly, it is then held without mincing any words in clear, convincing and categorical language in para 10 that, “This Court has taken a serious view of the nature of pleadings in this matter. Not only the High Court and the Registrar General of the High Court have been impleaded, apparently without any legal and factual cause, de hors the Central Legislation of 1850, and the Act of 1985, even the Judicial Officer who passed the judicial orders in his capacity as a Judicial Officer has been impleaded by designation, and by name. It shows complete disregard, on the part of the petitioner, to the protection given to every Judicial Officer/Judge, in service or not discharging judicial functions, by the two central legislations.

This Court cannot permit proceedings of this nature to continue by virtue of which, while challenging a judicial order, Judicial Officers are impleaded, including by name, and by designation, and also the High Court. I have taken notice of the fact that other than the four persons mentioned in earlier part of the order, no other person has been named as respondents. It is thus clear that for passing a judicial order in a pending judicial proceeding the Judicial Magistrate by name and designation; and the High Court and the Registrar General are being held accountable which is not permissible in law.”

Resultantly, it is then held in para 11 that, “In view of the above, this petition is dismissed with costs, in the sum of Rs. 10,000/- (Rupees ten thousand) only, to be recovered from the salary of the petitioner, and deposited with Assam State Legal Services Authority within 45 days from today.

Let a copy of this order be conveyed to the Superintendent of Police, Biswanath Chariali who shall ensure that the cost amount is deducted from the salary of the officer and the said fact is carried to his ACR.”

For the sake of clarity, it is then expounded in para 12 that, “This, however, does not curtail the liberty of the petitioner of challenging the orders impugned by virtue of this petition before appropriate forum, however, without impleading Judicial Officer or the High Court. The petitioner would be at liberty to avail the legal remedies as provided in law in challenge to the orders impugned by virtue of this petition, however, after showing deposit receipt of the cost amount.”

What’s more, it is then also for clarity’s sake then finally added in para 13 that, “This Court makes it clear that this Court has not considered the merit or demerit in the impugned orders passed by the Judicial Magistrate. Merit or demerit would be considered by appropriate forum in appropriate proceedings to be initiated by the petitioner, if so advised.”

To sum it up, the bottom-line of this extremely laudable judgment is that the Bench of Gauhati High Court of Chief Justice Ajai Lamba has made it explicitly clear that Judges enjoy absolute protection under the Judges (Protection) Act, 1985. This protection is not just available to the sitting Judge but also to an Ex-Judge in respect of the actions taken or words spoken by him while discharging his official or judicial functions. All the litigants must always bear this in mind and must desist from the dangerous and despicable tendency of impleading the High Court and the Judicial Officers! There can certainly be no denying or disputing it .

Sanjeev Sirohi

Right To Decent Burial As Per Religion Under Articles 21 And 25: Calcutta HC issues Guidelines

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It is most refreshing, most reassuring and most rejuvenating to see that the Calcutta High Court has just recently on 16 September 2020 in a latest, landmark and laudable judgment titled Vineet Ruia Vs The Principal Secretary, Ministry of Health & Family Welfare, Govt. of West Bengal & Ors. in WPA 5479 of 2020 With I.A. No. CAN/1/2020 (Old No. CAN 4144 of 2020] in exercise of its constitutional writ jurisdiction on its appellate side while asserting categorically and convincingly that the right to a decent funeral can also be traced in Article 25 of the Constitution of India, thus ruled that the immediate family members of Covid-19 victims be permitted to perform the funeral rites of the deceased subject to them following certain precautionary guidelines to eliminate/minimize the risk of them becoming infected by the deadly virus which has caused devastation in the form of loss of countless lives across the world. It is most gladdening to see that the Calcutta High Court was also of the firm view that the right of the family of a Covid-19 victim to perform the last rites before the cremation/burial of the deceased person is a right akin to Fundamental Right within the meaning of Article 21 of the Constitution of India. Who can deny it?

To start with, this latest, learned and laudable judgment by a Division Bench of Calcutta High Court comprising of Chief Justice Thottathil B. Radhakrishnan and Justice Arijit Banerjee sets the ball rolling by first and foremost observing in para 1 that, “In this writ petition styled as a Public Interest Litigation the petitioner has raised four grievances regarding the manner in which the State Government is monitoring the pandemic situation caused by the deadly novel Corona Virus. The four issues are as follows:

i)                 The human remains/dead bodies of persons inflicted with Covid-19 are being disposed of by the administration unceremoniously and in an undignified manner without showing even a semblance of respect to the mortal remains.

ii)              Relatives and friends of persons admitted to hospitals with Covid-19 or persons who have contracted the disease whilst in hospitals having been admitted for some other malady, and who subsequently passed away, are not being permitted to have a last look at or to pay last respect to the mortal remains of the dead person and to perform the last rites.

iii)           There is no proper reporting of Covid-19 cases or Covid-19 deaths.

iv)           District wise lists should be published containing names of all persons infected with Covid-19.”

Needless to say, it is then conceded in para 2 that, “The aforesaid issues are no doubt of vital importance particularly having regard to the havoc-like situation created all over the world including our State, by the sinister novel Corona Virus. Lakhs of people have fallen prey to the deadly Covid-19 and have lost their lives. The situation is indeed grave. Hence, we have heard at length, the petitioner who appeared in person as well as the Learned Advocate General appearing for the State and also the Learned Counsel for the Union of India.”

Be it noted, it is then very rightly pointed by the Bench in para 8 that, “We have carefully considered the submissions made on behalf of the parties. There is no scope for doubt anymore that the right to life enshrined in Article 21 of the Constitution of India includes the right to life with dignity. We agree with the submission of the petitioner that living with dignity includes not only the dignity of a person when he is alive but also the dignity following his death. The right to dignity and fair treatment under Article 21 of the Constitution is not only available to a living person but also to his mortal remains after his demise. Disposal of a human body, whether or not the person dies of Covid-19, whether by cremation or burial, should be done with due respect and solemness. We also agree that the near and dear ones of a deceased person who had contracted Covid-19 should have an opportunity to have a final look at the human remains of the person and to pay their last respect and homage to the departed soul.”

It would be instructive to mention here that para 9 mentions about the case of Pt. Parmanand Katara, Advocate v. Union of India & Anr. (1995) 3 SCC 248 and the key point here is that it was held by the Supreme Court that right to dignity is available not only to a living man but also to his body after his death. Similar is the key point of para 10 which mentions the case of Ramji Singh @ Mujeeb Bhai v. State of U.P. & Ors: 2009 SCC OnLine All 310 = (2009) 5 All LJ 376 decided by a Division Bench of Allahabad High Court. Similar is the case mentioned in para 15 – Marimuthu v. State by The Inspector of Police Pennadam Police Station, Vallar Division, Cuddalore (Criminal Appeal No. 618 of 1995) in its judgment dated 7 August 2002.

What’s more, para 11 then mentions the case of Vikash Chandra @ Guddu Baba v. The Union of India & Ors.: 2008 SCC OnLine Pat 905; (2008) 2 PLJR 127 where the Patna High Court held that it is expected from the Hospital Staff and State Officials that disposal of unclaimed and unidentified dead bodies would be done in accordance with law with utmost respect to the deceased and in case it is verifiable, the last rites should be in accordance with the known faith of the deceased.

Moving on, para 12 mentions of the case of Ashray Adhikar Abhiyan v. Union of India & Ors.: (2002) 2 SCC 27, where the Apex Court reiterated that the dead body of a homeless person who died on the street is entitled to a decent burial according to the religious faith to which he belonged. Similarly, in para 13 the Madras High Court in S. Sethu Raja v. The Chief Secretary [WP(MD) No.1. 3888 of 2007], observed that by our tradition and culture the same human dignity (if not more), with which a living human being is expected to be treated should also be extended to a person who is dead.

While discussing a recent case law titled Pradeep Gandhy v. State of Maharashtra: 2020 SCC OnLine Bom 662, it is then pointed in para 16 about the finding of the Division Bench of the Bombay High Court that, “We find little reason to deprive the dead of the last right, i.e., a decent burial according to his/her religious rites, on the face of there being no evidence, at least at this stage, that Covid-19 infection may spread to living human beings from the cadaver of any suspected/confirmed Covid-19 infected individual.”

No doubt, the key point of para 17 on the case of Common Cause v. Union of India: 2018 SCC OnLine SC 208 is that a Constitution Bench of the Supreme Court observed while adverting to a situation of a dying man who is in a persistent vegetative state that, “The right to die with dignity is an inseparable and inextricable facet of the right to life with dignity. Right to die with dignity is a Fundamental Right and thus an integral part of Article 21 of the Constitution.”

On a different note, it is then underscored in para 14 that traditions and cultural aspects are inherent to the last rites of a person’s dead body. Right to a decent funeral can also be traced in Article 25 of the Constitution of India.

 

Furthermore, it is then also made clear by the Bench in para 18 that, “We are of the view that the right to live a dignified life extends up to the point of death including the dignified procedure of death. We are inclined to interpret the phrase ‘dignified procedure of death’ in an expansive manner so as to include dignified disposal of the human remains of a deceased. We unhesitatingly hold that the mortal person must be treated with care, respect and dignity and have to be disposed of by burial or burning, according to the religion, in so far as the same is ascertainable, that the deceased person practised. It makes no difference if the deceased person was infected with Covid-19. Of course, all requisite safety and precautionary measures must be taken by the persons who carry out the funeral.”

Going ahead, the Bench also points out unambiguously in para 21 that, “The traditional belief in our country is that unless the last rites are performed before the burial/cremation, the soul of the deceased shall not rest in peace. This belief is deep rooted in our country. It also has an emotional and sentimental aspect. Hence, we firmly believe that the family members of a deceased who was infected with Covid-19 should not be deprived of the right to perform the last rites of the deceased, subject to them taking all necessary precautionary measures.”

Not stopping here, it is then further added in para 22 that, “In terms of Article 243G read with the 11th Schedule and Article 243W read with the 12th Schedule of the Constitution of India, public health, sanitation conservancy, burials, burial grounds, cremations, cremation grounds and electric crematoriums are matters that fall within the domain of self-government institutions, be it a Municipality ort a Panchayat. The West Bengal Municipal Act, 1993, which came into being after Part IXA was inserted in the Constitution of India by the Constitution (74th Amendment) Act, 1992 with effect from 01.06.1993, contains provisions regarding restraints of infection (Chapter XXII), vital statistics including registration of births and deaths (Chapter XXIII) and disposal of dead (Chapter XXIV). Section 359 of the 1993 Act empowers the Chairman of a Municipality, with the previous approval of the Board of Councillors, in case of an outbreak of dangerous or epidemic disease, to issue public notice giving such directions to be observed by the public or by any class or section of the public, as he thinks necessary, to prevent the outbreak or spread of the disease. In a case of emergency and where immediate measure is necessary, the Chairman may take such action even without the approval of the Board of Councillors and then report such action to the Board of Councillors. Any person committing a breach of any direction given under the said Section shall deem to have committed an offence under Section 188 of the Indian Penal Code. Section 360 of the said Act empowers the Chairman of a Municipality, where any person dies from any dangerous disease, to require any person having charge of the corpse to carry the same to mortuary for being disposed of in accordance with law or prohibit the removal of the corpse from the place where death occurred, except for the purpose of being burnt or buried or being carried to a mortuary. There are similar provisions in the statutes like Kolkata Municipal Corporation Act, 1980 whereby and whereunder the Kolkata and other Municipal Corporations were constituted respectively. In so far as the KMC Act is concerned, the provisions are to be found in Chapter XXVII (vital statistics), XXVIII (disposal of the dead) and XXIX (restraint of infection) of the Act.”

More significantly, it is then stipulated in para 23 that, “We have referred to the aforesaid provisions of law only to show that the legislature has imposed duties on the local self-government institutions to maintain hygiene in the public domain and has empowered such institutions to take appropriate measures to combat the menace of an epidemic or deadly disease. However, these powers must be exercised by the donees of such powers responsibly and by ensuring that the rights of the citizen which are recognized by law, are not jeopardized or curtailed unnecessarily. We are of the firm view that the right of the family of a Covid-19 victim to perform the last rites before the cremation/burial of the deceased person is a right akin to Fundamental Right within the meaning of Article 21 of the Constitution of India. While exercising their power to impose restrictions on citizens in their way of life in the wake of outbreak of an endemic like Covid-19, a fine balance must be struck by the State and the local self-government institutions so that the aforesaid right of a citizen to perform the obsequies of his near and dear ones does not stand abridged or abrogated excepting for very compelling reasons. Having given our anxious consideration to the issue in hand, we have come to the conclusion that the immediate family members of Covid-19 victims be permitted to perform the funeral rites of the deceased subject to them following certain precautionary guidelines to eliminate/minimize the risk of them becoming infected by the deadly virus which has caused devastation in the form of loss of countless lives across the world.”

Most significantly and most remarkably, it is then held elegantly and effectively in para 24 that, “We have considered the guidelines on dead body management in the context of Covid-19 issued on 15 March, 2020 by the Ministry of Health and Family Welfare, Government of India. In addition to the procedure laid down in the State Government Notification dated 6 June, 2020, which we have referred to hereinbefore, we lay down the following guidelines:

i)                 When post mortem of the dead body is not required, the dead body shall be handed over to the immediate next of kin of the deceased i.e. the parents/surviving spouse/children, after completion of hospital formalities. The body should be secured in a body bag, the face end of which should be preferably transparent and the exterior of which will be appropriately sanitized/decontaminated so as to eliminate/minimize the risk to the people transporting the dead body.

ii)              The people handling the dead body shall take standard precautions, e.g., surgical mask, gloves, etc. If available and possible, PPE should be used.

iii)           The vehicle carrying the dead body to the crematorium/burial ground will be suitably decontaminated.

iv)           The staff of the crematorium/burial ground should be sensitized that Covid-19 does not pose additional risk. They will practice standard precautions.

v)              The face end of the body bag may be unzipped by the staff at the crematorium/burial ground to allow the relatives to see the body for one last time. At this time, religious rituals, such as reading from religious scripts, sprinkling holy water, offering grains and such other last rites that do not require touching of the body should be allowed.

vi)           After the cremation/burial the family members and the staff of the crematorium/burial ground should appropriately sanitize themselves.

vii)        As a social distancing measure, large gathering at the crematorium/burial ground should be avoided.

viii)     The persons handling the dead body shall go directly from the hospitals to the crematorium/burial ground, as the case may be, and not to anywhere else including the home of the deceased where he/she last resided.

ix)           In case the body of a Covid-19 infected deceased is unclaimed, the same shall be cremated/buried as the case may be with due dignity, at State expense.

Needless to say, these guidelines are not to be taken as exhaustive and the State Government or local self-government institutions may and should prescribe additional reasonable measures as they may be advised by medical/clinical experts for the safety and protection of the health of the people who deal with the mortal remains of a Covid-19 victim.”

Finally, it is then held in the last relevant para 25 that, “As regards the third and fourth issues, i.e., proper reporting of Covid-19 cases or Covid-19 deaths and publication of names of Covid-19 infected persons district wise, we are satisfied that the State has taken adequate measures as recorded above. In our opinion no further direction need be given by us in that regard for the time being.”

Not even an iota of doubt can ever be left in the mind of any person who reads this latest, landmark and extremely laudable ruling by a Division Bench of the Calcutta High Court which dwells elaborately on the right to decent burial as per religion of the dying person as is enshrined also in Article 21 and Article 25 of the Constitution. It lays down guidelines also  as discussed above which must be followed in letter and spirit! There can be no denying or disputing it!

Sanjeev Sirohi

P & H HC Directs Haryana DGP To Implement Police Guidelines in DK Basu Case During Farmers Protests Against Three Agricultural Ordinances

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In a latest, landmark and laudable judgment titled Haryana Progressive Farmers Union – Sabka Mangal Ho Vs State of Haryana and another in CWP No. 14874 of 2020 delivered just recently on September 18, 2020, the Punjab and Haryana High Court has directed the DGP Haryana to ‘sensitize’ police officials performing duties during these farmers protests against the three Ordinances regulating farming and agricultural sectors about the guidelines for police laid down by the Supreme Court in the famous DK Basu case. A plea was filed by the Haryana Progressive Farmers Union alleging that during the farmers protest against the Agricultural Ordinances on September 10, 2020, few unknown persons, some in police uniform and others without resorted to lathi charge to dispel the crowd. It is a sad commentary that even after 23 years of the famous DK Basu’s ruling, we still see that its guidelines are still not being implemented by the police in our country.

To start with, this noteworthy judgment authored by Justice Arun Moga of Punjab and Haryana High Court in oral first and foremost sets the ball rolling in para 1 wherein it is observed that, “Petitioner, a farmers Union, inter alia, seeks issuance of a writ in the nature of mandamus, directing the respondents, to ensure that police officers of all ranks while on law and order duty, particularly, during the mass protests/agitations, shall wear proper uniform with visible clear identification, their name tags with designations. Further prayer has been made that all the protestors detained or arrested, ought to be given immediate medical treatment.”

To say the least, para 2 then reveals that, “Learned counsel for the petitioner contends that, on 10.09.2020, when the farmers in Haryana, owing allegiance to the petitioner union, were on a protest rally, few unknown persons, some in police uniform and others without, resorted to lathi charge to dispel the crowd. He relies on the photographs appended with the petition, purported to be of the scene of occurrence. The farmers were protesting against three agriculture ordinances issued by the Government of India. In the said incident, numerous farmers, including many old aged, were allegedly injured by unknown police officials but even the basic medical care was not provided.”

Be it noted, para 3 then further reveals that, “Learned counsel relies on guidelines/safeguards laid down by Apex Court way back in year 1997 in “D.K. Basu v. State of West Bengal” 1997 (1) SCC 416. He contends we are in year 2020 and yet, 23 years later, the said safeguards are not being implemented in State of Haryana. Seeking compliance thereof, petitioner-Union submitted Legal Notice/Representation dated 12.09.2020 (Annexure P-5) but the same has not been adverted till date. Hence, the petition.”

Furthermore, while para 4 mentions “Notice of motion”, we then see how para 5 then discloses that, “Ms. Mamta Talwar, DAG, Haryana, who has joined proceedings on service of advance copy of the petition, appears and accepts notice on behalf of State of Haryana.”

For the sake of clarity, it is then mentioned in para 6 that, “Given the nature of order being passed, there is no necessity to seek any return and/or conduct further proceedings.”

Most significantly, it is then envisaged in para 7 that, “Directions issued by Apex Court and the envisaged procedural safeguards to be observed by police administration per D.K. Basu’s case (supra) are no doubt to be followed/implemented in strict letter and spirit. For ready reference, the relevant is reproduced here under:

“We therefore, consider it appropriate to issue the following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures:

(1)         The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.

(2)         That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest, at the time of arrest such memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest.

(3)         A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.

(4)         The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organization in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.

(5)         The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon he is put under arrest or is detained.

(6)         An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.

(7)         The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.

(8)         The arrestee should be subjected to medical examination by trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory. Director, Health Services should prepare such a panel for all Tehsils and Districts as well.

(9)         Copies of all the documents including the memo of arrest referred to above, should be sent to the Illaqa Magistrate for his record.

(10)  The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.

(11)  A police control room should be provided at all district and state headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.

Failure to comply with the requirements hereinabove mentioned shall apart from rendering the concerned official liable for departmental action, also render him liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any High Court of the country, having territorial jurisdiction over the matter.

The requirements referred to above flow from Articles 21 and 22(1) of the Constitution and need to be strictly followed. These would apply with equal force to the other governmental agencies also to which a reference has been made earlier. These requirements are in addition to the constitutional and statutory safeguards and do not detract from various other directions given by the courts from time to time in connection with the safeguarding of the rights and dignity of the arrestee.”

In tune with the intent/ratio of the Supreme Court judgment, some of the above said preventive protections/directions, later on, by way of appropriate amendments in the Code of Criminal Procedure, 1973, have also been given legislative mandate.”

While disposing the writ petition, the Punjab and Haryana High Court then observes in para 8 that, “In the premise, without commenting on the merits of allegations/averments contained in the writ petition, the same is disposed of with a request to the Director General of Police, State of Haryana, to once again sensitize police officials of the state, on regular intervals, qua the aforesaid safeguards/parameters, to be followed by police officials while on duty. Regarding other allegations containing in the petitioner herein, the petitioner is at liberty to follow up its representation/legal notice, Annexure P-5, with the competent authority. Disposal of the present writ petition shall not be construed to mean that, if any genuine grievance is made out, the competent authority shall not look into the same. It is expected of the competent authority to pass appropriate orders qua Annexure P-5, in accordance with law, as expeditiously as possible.”

On a final note, it is then held in para 9 that, “In the parting, this court would also like to observe that the Director General of Police, State of Haryana, would do well by directing all the district police heads to ensure that a print out of all the 11 directions, per DK Basu, supra, are prominently displayed in a minimum font of 20 or 22, on a conspicuous notice board at the entrance of every police station in the State. Similar exercise, in fact, ought to be carried out in the State of Punjab as well. Registry is, therefore, directed to convey copy of this order to the Director General of Police, State of Punjab, who is also requested to do the needful, as aforesaid.”

All said and done, it is a no-brainer that the Haryana DGP must implement what the Punjab and Haryana High Court has held so clearly, cogently and convincingly on implementing police guidelines in DK Basu’s case and even the Punjab DGP is urged to do the needful just like Haryana. This will certainly ensure that the old and the weak are not unnecessarily lathicharged by the police which is the crying need of the hour also! No society and no country can ever progress where human rights are not respected in totality and so the human rights have to be accorded the highest priority always in our country. Even the Supreme Court will hear on October 7, 2020 the plea to revive DK Basu’s case to issue fresh guidelines to curb custodial torture. This is a very hot button issue and cannot be kept in cold storage any longer as it directly affects the people and agitates them when they see that the police beats them mercilessly without any strong reason! There can certainly be no denying it!

Sanjeev Sirohi

SC Order Extending Limitation Order Does Not Enlarge The Period Upto Which Delay Can Be Condoned In Exercise Of Statutory Discretion: SC

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     While clarifying its March 23 order most recently on September 18, 2020 in a latest, landmark and laudable judgment titled Sagufa Ahmed & Ors vs. Upper Assam Plywood Products Pvt. Ltd. & Ors. in Civil Appeal No. 30073008 of 2020, a three Judge Bench of the Supreme Court comprising of CJI Sharad A Bobde, Justice V Ramasubramanian and Justice AS Bopanna observed clearly, categorically and convincingly that the said order extended only “the period of limitation” and not the period upto which delay can be condoned in exercise of discretion conferred by the statute. The Apex Court held that the expression “prescribed period” appearing in Section 4 of the Limitation Act cannot be construed to mean anything other than the period of limitation. It explicitly, elegantly and effectively held that the appellant cannot claim the benefit of the order for enlarging even the period up to which delay can be condoned.

To start with, this noteworthy judgment authored by Justice V Ramasubramanian for himself, CJI Sharad Arvind Bobde and Justice AS Bopanna first and foremost mentions in para 1 that, “Challenging an order passed by the National Company Law Appellate Tribunal (hereinafter referred to as ‘NCLAT’) dismissing an application for condonation of delay as well as an appeal as time barred, the appellants have come up with the above appeals.”

To put things in perspective, it is then stated in para 3 that, “The appellants herein together claim to hold 24.89% of the shares of a company by name Upper Assam Plywood Products Private Limited, which is the first respondent herein. The appellants moved an application before the Guwahati Bench of the National Company Law Tribunal (hereinafter referred to as ‘NCLT’) for the winding up of the company. The said petition was dismissed by the NCLT by an order dated 25.10.2019.”

It would be pertinent to mention here that para 6 then brings out that, “Though the appellants admittedly received the certified copy of the order on 19.12.2019, they chose to file the statutory appeal before NCLAT on 20.07.2020. The appeal was filed along with an application for condonation of delay.”

As it turned out, para 7 then elucidates that, “By an order dated 04.08.2020, the Appellate Tribunal dismissed the application for condonation of delay on the ground that the Tribunal has no power to condone the delay beyond a period of 45 days. Consequently the appeal was also dismissed. It is against the dismissal of both the application for condonation of delay as well as the appeal, that the appellants have come up with the present appeals.”

By the way, regarding the contentions of the appellant, it is then divulged in para 8 that, “The contentions raised by the learned counsel for the appellants are two-fold namely (i) that the Appellate Tribunal erred in computing the period of limitation from the date of the order of the NCLT, contrary to Section 421(3) of the Companies Act, 2013, and (ii) that the Appellate Tribunal failed to take note of the lockdown as well as the order passed by this Court on 23.03.2020 in Suo Motu Writ Petition (Civil) No. 3 of 2020, extending the period of limitation for filing any proceeding with effect from 15.03.2020 until further orders.”

Needless to say, para 13 then states that, “Therefore, it is true, as contended by the appellants, that the period of limitation of 45 days prescribed in Section 421(3) would start running only from the date on which a copy of the order of the Tribunal is made available to the person aggrieved. It is also true that under Section 420(3) of the Act read with Rule 50, the appellants were entitled to be furnished with a certified copy of the order free of cost.”

Of course, para 14 then further states that, “Therefore, if the appellants had chosen not to file a copy application, but to await the receipt of a free copy of the order in terms of Section 420(3) read with Rule 50, they would be perfectly justified in falling back on Section 421(3), for fixing the date from which limitation would start running. But the appellants in this case, chose to apply for a certified copy after 27 days of the pronouncement of the order in their presence and they now fall back upon Section 421(3).

Notwithstanding to what has been stated above, it is then postulated in para 15 that, “Despite the above factual position, we do not want to hold against the appellants, the fact that they waited from 25.10.2019 (the date of the order of NCLT) upto 21.11.2019, to make a copy application. But at least from 19.12.2019, the date on which a certified copy was admittedly received by the counsel for the appellants, the period of limitation cannot be stopped from running.”

In addition, it is then disclosed in para 16 that, “From 19.12.2019, the date on which the counsel for the appellants received the copy of the order, the appellants had a period of 45 days to file an appeal. This period expired on 02.02.2020.”

Be it noted, it is then pointed in para 17 that, “By virtue of the proviso to Section 421(3), the Appellate Tribunal was empowered to condone the delay upto a period of 45 days. This period of 45 days started running from 02.02.2020 and it expired even according to the appellants on 18.03.2020. The appellant did not file the appeal on or before 18.03.2020, but filed it on 20.07.2020. It is relevant to note that the lockdown was imposed only on 24.03.2020 and there was no impediment for the appellants to file the appeal on or before 18.03.2020. To overcome this difficulty, the appellants rely upon the order of this Court dated 23.03.2020. This takes us to the second contention of the appellants.”

More significantly, it is then illustrated in para 18 that, “To get over their failure to file an appeal on or before 18.03.2020, the appellants rely upon the order of this Court dated 23.03.2020 in Suo Motu Writ Petition (Civil) No. 3 of 2020. It reads as follows:

“This Court has taken Suo Motu cognizance of the situation arising out of the challenge faced by the country on account of Covid-19 Virus and resultant difficulties that may be faced by litigants across the country in filing their petitions/applications/suits/appeals/all other proceedings within the period of limitation prescribed under the general law of limitation or under Special Laws (both Central and/or State).

To obviate such difficulties and to ensure that lawyers/litigants do not have to come physically to file such proceedings in respective Courts/Tribunals across the country including this Court, it is hereby ordered that a period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or Special Laws whether condonable or not shall stand extended w.e.f. 15th March 2020 till further order/s to be passed by this Court in present proceedings.

We are exercising this power under Article 142 read with Article 141 of the Constitution of India and declare that this order is a binding order within the meaning of Article 141 on all Courts/Tribunals and authorities.

This order may be brought to the notice of all High Courts for being communicated to all subordinate Courts/Tribunals within their respective jurisdiction.

Issue notice to all the Registrar Generals of the High Courts, returnable in four weeks.””

Most significantly and most remarkably, it is then enunciated in para 19 that, “But we do not think that the appellants can take refuge under the above order. What was extended by the above order of this Court was only “the period of limitation” and not the period upto which delay can be condoned in exercise of discretion conferred by the statute. The above order passed by this Court was intended to benefit vigilant litigants who were prevented due to the pandemic and the lockdown, from initiating proceedings within the period of limitation prescribed by general or special law. It is needless to point out that the law of limitation finds its root in two latin maxims, one of which is Vigilantibus Non Dormientibus Jura Subveniunt which means that the law will assist only those who are vigilant about their rights and not those who sleep over them.”

Finally, it is then held in the last para 25 that, “Therefore, the appellants cannot claim the benefit of the order passed by this Court on 23.03.2020, for enlarging, even the period up to which delay can be condoned. The second contention is thus untenable. Hence the appeals are liable to be dismissed. Accordingly, they are dismissed.”

To conclude, the three Judge Bench of the Apex Court which includes the CJI also has thus made the legal position on this explicitly clear! The said Supreme Court order extending limitation order does not enlarge the period upto which delay can be condoned in the exercise of statutory discretion! There can be no denying it also!

Sanjeev Sirohi

SC Reiterates That Section 50 NDPS Act Applicable Only In The Case Of Personal Search

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In a well-worded, well-drafted, well-articulated, well-reasoned and well-analysed judgment titled Jeet Ram vs. Narcotics Control Bureau, Chandigarh in Case No.: Criminal Appeal No. 688 of 2013 in exercise of its criminal appellate jurisdiction delivered as recently as on September 15, 2020, a three Judge Bench of the Apex Court has laid down in no uncertain terms that Section 50 of the NDPS Act is applicable only in the case of personal search. This the Supreme Court has reiterated unambiguously while affirming the conviction of an accused who was a temple priest. Very rightly so!

To start with, the ball is set rolling in para 1 of this latest, landmark and laudable judgment authored by Justice R Subhash Reddy for himself, Justice Ashok Bhushan and Justice MR Shah wherein it is observed that, “This appeal is filed by the sole accused, in Sessions Trial No. 7-5/2002 of 2001 on the file of Sessions Judge, Shimla, aggrieved by the judgment of conviction dated 11.12.2012 and further order of sentencing the appellant, dated 31.12.2012, passed by the High Court of Himachal Pradesh, Shimla in criminal Appeal No. 493 of 2003.”

To be sure, it is then revealed in para 2 that, “The appellant-accused was tried for a charge punishable under Section 20 of Narcotics Drugs and Psychotropic Substances Act, 1985 (for short, ‘NDPS Act’). The Sessions Judge, Shimla by judgment dated 30.06.2003 acquitted the accused by recording a finding that the case of prosecution was not free from doubt and there were many infirmities in the case of the prosecution to hold that the accused was found to be in possession of charas, as alleged by the prosecution.”

To put it succinctly, it is then stated in para 3 that, “The case as put forth by the prosecution, briefly stated, is as under:

On 18.06.2001 the Intelligence Officer in the Narcotics Control Bureau (NCB), Chandigarh, by name – R.P. Singh (PW-4) was proceeding to Theog from Shimla. He was travelling along with PW-3 – O.P. Bhatt and other officials. In the transit they stopped at the dhaba to have meals which was near the Nangala Devi temple. When they ordered meals and tea and were waiting for the food to be served, the Intelligence Officer could smell the odour of charas. In the meanwhile, the Zonal Director of NCB, Chandigarh, by name – Rakesh Goyal, who was examined as PW-1 also reached the said dhaba. Then they have questioned the appellant-accused about the smell of charas and on such questioning he became nervous. As such there was increase of suspicion of the NCB officials. On asking the owner of the dhaba, he disclosed his name to be Jeet Ram and on further questioning he tried to run away. Then he was apprehended and taken to the counter of the dhaba. Just below the counter of the dhaba a gunny bag was found. When asked, appellant has replied – there is nothing in it. Then notice under Section 50 of the NDPS Act was given to the accused and appellant has consented to search the same by the NCB officials. Thereafter the bag was searched and the officers have found 13 Kg of charas. The charas was divided into two portions of 6 ½ Kg each and two packets were made which were marked as ‘X’ and ‘Y’ respectively. From each of these packets, two samples of 25 grams were drawn. The samples drawn from the packet – Mark ‘X’ – were marked as ‘X1’ and ‘X2’ and the samples drawn from packet – Mark ‘Y’ – were marked as ‘Y1’ and ‘Y2’. Thereafter all the four samples were sealed in a polythene bag by heat sealing process and were put in paper envelopes and seal with paper seals, signed by NCB officials as well as the appellant-accused Jeet Ram. On each sample seal no. 6 of NCB was affixed on all the four corners and the bulk charas in packets ‘X’ and ‘Y’  was sealed in paper parcels with six seals each. The seals were handed over to PW-1 and all the samples and the parcels were signed by NCB officials and accused. Further, in the statement recorded as contemplated under Section 67 of the NDPS Act, the appellant has admitted that for various reasons he was indulged in the trade of charas to increase his income. Thereafter a Panchnama was drawn which was signed by the appellant and he was arrested on 19.06.2001. The two samples of ‘X1’ and ‘Y1’ along with a letter were sent through PW-2 Hayat Singh to Chemical Analyst for analysis, who has vide his report opined that both the samples were of charas. On the said basis, the appellant-accused was charged and challaned for the offence under Section 20 of the NDPS Act.”

To put things in perspective, it is then stated in para 4 that, “When the charge is denied by the appellant-accused, he was tried for the aforesaid offence before the Sessions Judge, Shimla. To prove the guilt of the appellant, the prosecution has examined four witnesses in all, in support of its case. On behalf of the accused oral evidence was let in to show that the dhaba in question was not being run by him and he was employed as a priest in the nearby temple. After considering the oral and documentary evidence on record, the trial court by judgment dated 30.06.2003 acquitted the appellant-accused mainly on the grounds that – the prosecution case was not supported by any independent witness; the prosecution has failed to show that the seized charas was recovered from the dhaba of the appellant-accused and further there is no evidence to show that the appellant-accused was found in possession of the charas, as pleaded by the prosecution; there was non compliance of Section 50 of the NDPS Act; as the samples was handed over to PW-1 Rakesh Goyal who himself gave the sample to PW-2 for carrying the same to the Central Laboratory at Delhi and these seals remained with the Director, as such the chances of tampering could not be ruled out and also on the ground that the case of the prosecution was unnatural and improbable.”

As it turned out, para 5 then states that, “Aggrieved by the judgment of the trial court, the NCB, Chandigarh has filed appeal as contemplated under Section 36-B of the NDPS Act read with Section 378 of the Code of Criminal Procedure before the High Court of Himachal Pradesh at Shimla in Criminal Appeal No. 493 of 2003. The High Court by reappreciating the evidence on record has come to conclusion that the prosecution has proved its case beyond reasonable doubt and also has proved that 13 Kg of charas was recovered from the possession of the appellant-accused, who was managing the dhaba in question, and set aside the judgment of the trial court and ordered conviction of the appellant for offence punishable under Section 20 of the NDPS Act. By further hearing the appellant, order dated 31.12.2012 was passed sentencing the appellant-accused to undergo rigorous imprisonment for 15 years and to pay fine of Rs. 2,00,000/- and in default, to undergo further imprisonment of one year. Aggrieved by the conviction recorded and sentence imposed by the High Court, this appeal is filed by the accused.”

Truth be told, the Bench then observes in para 9 that, “Having heard the learned counsel on both sides and on perusal of the record, we do not find any substance in any of the contentions advanced by the learned counsel for the appellant, except the submission on the quantum of sentence.”

Most significantly, the Bench then very rightly points out in para 10 that, “It is mainly contended by learned counsel for the appellant that the High Court/appellate Court was not justified in interfering with the judgment of acquittal passed by the trial court merely because another view is possible. As noted earlier, in support of his argument that merely because another view is possible, same is no ground to interfere with the judgment of acquittal by the appellate court, the learned counsel has relied on judgments of this Court in the case of Union of India v Bal Mukund & Ors. (2009) 12 SCC 161; Francis Stanly v. Intelligence Officer, Narcotic Control Bureau, Thiruvananthapuram (2006) 13 SCC 210 and Rangaiah v. State of Karnataka (2008) 16 SCC 737. To counter the said submission, the learned Additional Solicitor General Sri Aman Lekhi has submitted that it is always open to the appellate court to review the evidence on record upon which order of acquittal is founded and if it comes to conclusion that the order passed by the trial court is erroneous and unreasonable, it is always open for the appellate court to interfere with the order of acquittal. It is contended that the view taken by the trial court is not a possible view having regard to evidence on record. Such erroneous finding can be corrected by the appellate court. In support of his argument, the learned Additional Solicitor General has placed reliance on the judgments of this Court in the case of Sanwat Singh & Ors. v. State of Rajasthan (1961) 3 SCR 120; Damodarprasad Chandrikaprasad v. State of Maharashtra (1972) 1 SCC 107 and Vinod Kumar v. State of Haryana (2015) 3 SCC 138. Though the ratio laid down in the judgments relied on by the learned counsel for the appellant is that the appellate court would not interfere with the judgment of acquittal only because another view is possible but at the same time whether the findings recorded by the trial court in support of acquittal are valid or not is a matter which is to be considered with reference to facts of each case and evidence on record. On close scrutiny of the depositions of the witnesses examined on behalf of the prosecution as well as on behalf of the accused, we are of the view that the findings recorded by the trial court are contrary to evidence on record and view taken by the trial court was not possible at all, as such the High Court rightly interfered with the same and recorded its own findings to convict the appellant. The trial court acquitted the appellant mainly on the ground that prosecution case was not supported by independent witnesses; conscious possession was not proved; non-compliance of Section 50 of the NDPS Act; proper procedure was not followed in sending the samples for examination and the case of the prosecution was unnatural and improbable. As rightly held by the High Court, this Court in the case of State of H.P. v. Pawan Kumar (2005) 4 SCC 350 has held that Section 50 of the NDPS Act is applicable only in the case of personal search, as such, there is no basis for the findings recorded by the trial court that there was non-compliance of provision under Section 50 of the NDPS Act. Even with regard to the finding of the trial court that the case of the prosecution was not supported by independent witnesses, it is clear from the evidence on record that the incident had happened at about 10:30 p.m. in a dhaba which is away from the village site and all other persons who are found in the dhaba were the servants of the accused.  It is also clear from the evidence on record that Suresh Kumar and Attar Singh examined on behalf of the appellant are closely related to the accused, as such, they could not be said to be independent witnesses. Pappu was the only other person who is none other than the servant of the dhaba and we cannot expect such a person to be a witness against his own master. Dealing with the issue of conscious possession, it is to be noticed that dhaba is constructed on the land which belongs to Kaushalya Devi who is none other than the wife of the accused. Further in deposition PW-4 has stated that when the accused was questioned as to who was the owner of the dhaba, he claimed to be the owner. The case of the prosecution was found to be unnatural and improbable by the trial court only on the ground that 13 Kg of charas was lying in open in a gunny bag. The trial court found that it is not believable that any person would keep such a huge quantity of charas in open condition. It is clear from the evidence of prosecution witnesses that the officials of NCB got information that trafficking of charas was going on in the area in question. Two police parties had left for Theog – one party headed by PW-4 B.P. Singh started earlier and second party headed by PW-1 Rakesh Goyal left a little later from Shimla. Thus the depositions of PW-4 R.P. Singh; PW-3 O.P. Bhat; PW-1 Rakesh Goyal and PW-2 Hayat Singh are consistent and trustworthy and cannot be said to be unnatural and improbable. Further it is also to be noted that the trial court has held that seal with which samples and remaining bulk of charas was sealed and handed over to PW-1 Rakesh Goyal who himself gave the sample to PW-2 for carrying to Central Laboratory at Delhi and since the seals remained with the Director, the chances of tampering could not be ruled out. In this regard, it is to be noticed, as rightly held by the High Court, that the trial court totally lost sight of the fact that on 19.06.2001 JMIC, Theog had also appended his signatures on the samples as well as bulk parcels and, therefore, there was no chance of tampering of the samples. Further, there was no such suggestion of tampering either put to PW-1 Rakesh Goyal or to PW-2 Hayat Singh.”

Briefly stated, the key point of para 11 is that, “For the aforesaid reasons, we are of the clear view that the view taken by the trial court was not at all possible, having regard to the evidence on record and findings which are erroneously recorded contrary to evidence on record were rightly set aside by the High Court. As submitted by the learned Additional Solicitor General appearing for the prosecution, it is always open to the appellate court to reappreciate the evidence, on which the order of acquittal is founded, and appellate courts are vested with the powers to review and come to their own conclusion. The judgments in the case of Sanwat Singh; Damodarprasad Chandrikaprasad and Vinod Kumar also support the case of the respondent. For the aforesaid reasons, we reject the submission made by the learned counsel for the appellant. Even with regard to the plea of the appellant that the evidence on record on behalf of the prosecution is not sufficient enough to hold that the appellant-accused was in conscious possession of the seized material, also cannot be accepted. It is clear from the evidence on record that the appellant was on the counter of the dhaba which was constructed on the land owned by his wife near the temple and the charas was found in the counter of the dhaba in a gunny bag. The facts of the case show that accused not only had direct physical control over charas, he had the knowledge of its presence and character. In the statement recorded under Section 313 of Code of Criminal Procedure, though the appellant has referred to Brij Lal and Mantu in support of a version, contrary to that presented by prosecution but he has not chosen to examine either Brij Lal or Mantu. No defence witness has deposed to the chain of events, as has been stated by the appellant in the statement under Section 313 , Cr.PC. It is also fairly well settled that where accused offers false answers in examination under Section 313 Cr.PC, same also can be used against him. Further onus was on the appellant to explain the possession and in absence of the same being discharged, presumption under Section 54 of the NDPS Act also will kick in.”

Be it noted, it is then observed in para 12 that, “For the aforesaid reasons, we are of the view that the judgment of the High Court does not suffer from any infirmity so as to interfere with the judgment of conviction.”

Finally, while adding a rider, it is then held in the last para 13 that, “At the same time we find force in the submission of the learned counsel for the appellant in sentencing the appellant for 15 years rigorous imprisonment with a fine of Rs. 2,00,000/-. Having regard to peculiar facts and circumstances of the case and in view of the fact that the incident occurred in the year 2001 and as the appellant claimed to be a priest in the temple, who is now aged about 65 years, we deem it appropriate that it is a fit case to modify the sentence imposed on the appellant. Accordingly, the sentence awarded on the appellant is reduced to a period of 10 (ten) years, while maintaining the conviction and the penalty as imposed by the High Court. The order of sentence dated 31.12.2012 passed by the High Court stands modified. The appeal is partly allowed to the extent indicated above.”

All said and done, it may well be said that with a lot of painstaking efforts this latest, landmark and extremely laudable judgment has been absolutely right in inferring the logical conclusion and by citing the relevant case laws along with cogent arguments! All the courts of our country in similar such cases must always strictly adhere to the guidelines which have been laid down in this notable case and the reasoning adopted to reach the conclusion that we see here! There can be no denying or disputing as held by a three Judge Bench of the Apex Court in this case that, “Section 50 NDPS Act is applicable only in the case of personal search!”

Sanjeev Sirohi

Any Attempt To Vilify A Religious Community Must Be Viewed With Grave Disfavour: SC In Sudarshan TV Case

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“What has been happening does not do credit to our democratic system. India is a melting pot of civilizations, cultures and values, etc. Any attempt to vilify a community must be viewed with great disfavour by this court, which is the custodian of constitutional right. Its duty to enforce constitutional value demands nothing less. Every single person who applies to take the UPSC exam goes through the same selection process and the insinuation that one community was trying to infiltrate civil services  does great disservice to the nation.”

Who else can say such invaluable, intellectual and priceless words other than the eminent, distinguished and a senior Judge of the Supreme Court – Justice Dr DY Chandrachud whose every judgment is worth studying hundred times. I have just no hesitation to say that if the Ayodhya verdict has acquired a semblance of approval from people across religious lines, it was only because of Justice Dr DY Chandrachud who many reported in media was the one who really authored this most historic judgment with consummate ease which ended the more than 500 year old vexed dispute between Hindus and Muslims most peacefully! He is known to express his views always in the most outspoken, elegant and effective manner with cogent arguments being visible clearly in his learned judgments!                               On a personal note, I very strongly feel that India cannot be ever complete without Muslims. Just like Hindus, Muslims too form an integral part of India which cannot be ever denied! If Hindus and Muslims had stayed united firmly in 1947, leave alone the ‘Britishers’ even “God” could not have ensured the partition of India and we would have by now been the most powerful country in the world!

This “England” which was ruling us never wanted India to stay united and so it right from the start had sowed the seeds of hatred, distrust, division, discord and we have to blame ourselves that is “the people” and “the leaders” of those times for getting biased, trapped in their “most dirty game” and agreeing to the ‘horrible’ partition of India on the most “shameless, senseless and stupid” ground of religion due to which Pakistan came into existence even though Maulana Abul Kalam Azad, Khan Abdul Ghaffar Khan, Maulana Hasrat Mohani and many other Muslim leaders were deadly against partition of India on the ground of religion! It cannot be denied or disputed that this partition made a mockery of our freedom struggle as no true Indian ever wanted the partition of India on the basis of religion but “dirty politics” masterminded by “Britishers” with their “Indian agents” in India stole the show and India was thus partitioned most wrongly!

Needless to say, there has to be zero tolerance for hatred of any kind. This is exactly what the three Judge Bench of the Supreme Court comprising of Justice Dr DY Chandrachud, Justice Indu Malhotra and Justice KM Joseph have sought to convey by this latest, landmark and extremely laudable judgment titled Firoz Iqbal Khan vs Union of India & Ors in Writ Petition(s) (Civil) No.(s). 956/2020 delivered on September 15, 2020 even though the case is yet to finally conclude. The petition was filed by advocate Firoz Iqbal Khan who submitted that the programme on Sudarshan TV contained statements which were derogatory about the entry of Muslims into the civil services. Senior advocate Anoop Chaudhari for petitioner Firoz Iqbal Khan said that, “The show was blatantly communal and had become a focal point of hate speech.” The Apex Court by this leading judgment has restrained Sudarshan News from broadcasting remaining episodes of a show that has claimed to “expose” the “infiltration of Muslims” in the civil services. Very rightly so!

To start with, the ball is set rolling by first and foremost pointing in this notable judgment that, “Applications for interventions are allowed. On 28th August 2020, the writ petition under Article 32 of the Constitution was moved for urgent directions since the telecast of a programme titled “Bindas Bol” was to take place at 8 pm on Sudarshan news, the news channel of the fifth respondent. The petitioner relied on the transcript of a promotional clip of forty-nine seconds. The contention was that the clip contains statements which are derogatory of the entry of Muslims in the civil service. The Court declined to issue a pre-broadcast interlocutory injunction, furnishing the following reasons in paragraph 8 of the order:-

“8. At this stage, we have desisted from imposing a pre-broadcast interlocutory injunction on the basis of an unverified transcript of a forty nine second clip. The Court has to be circumspect in imposing a prior restraint on publication or the airing of views. We note that under statutory provisions, competent authorities are vested with powers to ensure compliance with law, including provisions of the criminal law intended to ensure social harmony and the peaceful coexistence of all communities.”

Several interlocutory applications have been moved before this Court including I.A. Nos. 91132, 91134, 91167, 91171, 91135, 91136 and 90940 of 2020.”

Be it noted, the Apex Court points out rightly that, “Since the order of this Court dated 28 August 2020, certain developments have taken place. On the same day as the previous order of this Court, a Single Judge of the Delhi High Court restrained the fifth respondent from broadcasting the proposed programme and directed the Ministry of Information and Broadcasting to consider whether there was a violation of the Programme Code under the provisions of the Cable Television Networks (Regulation) Act, 1995. A communication was addressed on 09 September 2020 by the Union Government to the fifth respondent to ensure that the broadcast of the programme is consistent with the provisions of the Programme Code. Since then, episodes of the programme based on the same theme have been broadcast on 11, 12, 13 and 14 September 2020. The remaining episodes comprising of a total of ten episodes are to be broadcast between 15 to 20 September 2020.”

To put things in perspective, the Bench then points out the petitioner’s version that, “On behalf of the petitioners, it has been submitted that the content of the episodes which have been telecast constitutes hate speech directed against the Muslim community. It has been submitted that the telecasts vilify the community by portraying it to be involved in act of terror or, as it is labelled, “jehad” in infiltrating the civil services of the nation. Hence, it has been submitted that the restraint which was observed by this Court in declining to issue an order of injunction on 28 August 2020 would warrant a change. It has been submitted that the circumstances which weighed this Court in declining to order a pre-broadcast injunction have substantially been altered. For one thing, it has been emphasized that in the course of the telecast, palpably false statements have been made in connection with the Muslim community, including among them the statements that:

(i)                         While the upper age limit for Hindus in the civil services examination is 32 years, the age limit for Muslims is 35 years; and

(ii)                      While six attempts are made available for Hindus to appear for the civil services examination, Muslims are entitled to nine attempts.

Screenshots of the programme which have been aired between 11 and 14 September, 2020 have been placed on record together with transcripts. It has been submitted that a carefully orchestrated attempt has been made to target the Muslim Community as being involved in a conspiracy to infiltrate the civil services.”

Most significantly, the Bench then very rightly underscores that, “The Court is presently seized with the hearing of the writ petition which will continue on the next available date of listing which is 17 September 2020. In the meantime, the issue is whether a pre-broadcast injunction should be issued in respect of the remaining episodes of the programme. At this stage, prima facie, it does appear to the Court that the intent, object and purpose of the episodes which have been telecast is to vilify the Muslim community. An insidious attempt has been made to insinuate that the community is involved in a conspiracy to infiltrate the civil services. Several statements in the episodes, which have been drawn to the attention of the Court are not just palpably erroneous but have been made in wanton disregard of the truth. There is no relaxation either in the age limit or in the number of attempts available to the Muslim community in the civil services. The drift, tenor and content of the episodes is to bring the community into public hatred and disrepute. The Court is duty bound to ensure compliance with the salutary principles of the Programme Code. The Programme Code has been formulated under Rule 6 of the Cable and Television Networks (Regulation) Rules and has statutory force and effect. Rule 6(1)(c), inter alia, stipulates that no programme should be carried which “contains attack on religions or communities or visuals or words contemptuous of religious groups or which promotes communal attitudes”. Under Rule 6(1)(d), the Programme Code should not, inter alia, contain anything which is defamatory, false or reflective of “half-truths and suggestive of innuendos”. A breach of the Programme Code is subject to sanctions under Sections 19 and 20 of the Cable and Television Networks (Regulation) Act, 1995. The edifice of a democratic society committed to the rule of law under a regime of constitutional rights, values and duties is founded on the co-existence of communities. India is a melting pot of civilizations, cultures and values, etc. Any attempt to vilify a community must be viewed with great disfavour by this court, which is the custodian of constitutional right. Its duty to enforce constitutional value demands nothing less.”

Finally, the Bench then holds that, “Conscious, therefore, as we are of the previous order dated 28 August 2020 declining to issue a pre-broadcast injunction, we are of the view that there has been a change of circumstances, at least, prima facie, on the basis of the record which has emerged before this Court. On 28 August 2020, the Court was truly in the realm of a pre-broadcast injunction when even the first programme was to be aired. Since then, episodes have been aired between 11 and 14 September 2020 which indicate the content, tenor and object of the telecast in question. The remaining episodes admittedly will be in the same vein. On the basis of what has been aired, we are of the view that it will be necessary to interdict any further telecast. Consequently, we direct that pending further orders of this Court, the fifth respondent shall stand injuncted from making any further telecast in continuation of or similar to the episodes which were telecast on 11, 12, 13 and 14 September, 2020 either under the same or any other title or caption. List on 17 September 2020.”

Truth be told, Justice Dr DY Chandrachud very rightly points out that, “This is not a freedom of speech issue. When you say students of Jamia are part of a conspiracy to infiltrate civil services, that is not permissible. You cannot target one community and brand them in a particular manner. As the Supreme Court of the nation, we cannot allow you to say that Muslims are infiltrating the civil services. You cannot say that the journalist has absolute freedom in doing this.” Advocate Shadan Farasat who appeared for the petitioner very rightly said that the show had vilified the image of Muslims in civil services. He rightly asked that, “How does one respond to a statement that Muslims should not be in civil services?” The Apex Court too was particularly miffed at this when it said that, “Look at this programme how rabid is this programme that one community is entering into civil services. Can such programmes be allowed in a free society? Your client is doing a disservice to the nation and is not accepting India as a melting pot of diverse culture. Your client needs to exercise his freedom with caution. We are not suggesting some kind of censorship on media but there should be some kind of self-regulation in media.”

No doubt, the Apex Court certainly has a valid point when it restrained Sudarshan TV from telecasting two episodes of “Bindas Bol” programme which are scheduled for Tuesday and Wednesday saying it prima facie appears to vilify the Muslim community. This no true Indian can ever accept under any circumstances just like no true Indian can ever justify what the fugitive Dr Zakir Naik preached and whose Peace TV channel is banned in India as he justified violent terrorism against non Muslims and who is now based in Malaysia! Similarly Solicitor General Tushar Mehta too rightly pointed out that, “Some channels were raising the bogey of “Hindu Terror” some time ago.”

To incite hatred or contempt against any religion cannot be ever justified under any circumstances! Justice KM Joseph also made it clear that, “Press freedom is not absolute and is in no way greater than that of the citizens.” No denying it!

Sanjeev Sirohi

Petitioner Fails To Explain Any Reason For Leaving Husband : Punjab and Haryana High Court

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Imposes Rs 25K Costs On Wife For Frivolous Plea For Protection From Husband and In-Laws

Let me not hesitate to begin by first and foremost stating that I very strongly feel that the time is ripe now for making many radical changes in our penal laws and treating woman on the same platform as man and as is repeatedly demanded most strenuously by many reputed woman organizations also not just in our country alone but all over the world! Just like adultery has been decriminalized unlike earlier when men alone was punishable for imprisonment of upto five years similarly laws must be so amended so as to treat women on par with men in all respects! There can be no denying or disputing it!

No doubt, there is now also a dire need to ensure that if a woman makes false accusations against any men then she is not allowed to get away scot free. She must also be made to pay just like men for her crime of making false accusations against any men whether he is her husband or a friend or a stranger! Not just this, I also very strongly feel that there must be a minimum of two years  imprisonment and maximum of five years imprisonment for anyone whether he/she is a man or a woman who makes false allegations against anyone without substantiating it due to which the reputation of that person affected on whom allegation is made suffers irreparably!

To start with, in a latest, landmark and laudable judgment titled Babita and another Vs State of Haryana and others in CRWP-6765-2020 delivered on September 3, 2020 by Justice Manoj Bajaj of Punjab and Haryana High Court, a cost of Rs 25,000 has been imposed on a woman for failing to explain why she had left her husband against whom she had approached the Court apprehending threat to her life. She failed to give any sound and valid reason for leaving her husband and for apprehending threat to her life. This alone explains why the Punjab and Haryana High Court took strong exception to it and imposed a cost of Rs 25000 on her for doing so!

At the outset, this noteworthy judgment begins by first and foremost pointing out in the opening para that, “By means of this writ petition, the petitioners have prayed for a writ of mandamus by way of directions to the official respondents to protect their life and liberty as they apprehend danger at the hands of private respondent Nos. 5 to 12.”

While elaborating on the facts of the case, it is then pointed out in the next para that, “Briefly, the facts as pleaded in the writ petition are that Babita (petitioner No. 1) was married to Manish (respondent No. 5) in the year 2008 and two children were born out of this wedlock. Petitioner No. 1 was dealt with cruelty by her husband and other members of her in-laws family. She gathered courage ten days back and left the matrimonial home with the help of petitioner No. 2. According to the pleadings, the petitioner No. 1 left the house as per her own will and is living at different places in the District Jhajjar. The petitioners apprehended that the private respondents would cause harm to them, therefore, they had given representations to official respondent Nos. 1 to 3 (Annexures P-1 to P-3) respectively. However, the representations have not been looked into so far and therefore, they have approached this Court for protection of their life and liberty.”

As it turned out, what is next illustrated in the new para of this significant judgment is this: “Learned counsel for the petitioners contend that the life of the petitioner No. 1 had become miserable in her matrimonial home and therefore, there were compelling circumstances for her to leave the company of her husband. It is pointed out that the private respondent Nos. 5 to 12 may cause harm to her and petitioner No. 2, who rendered his help. He prays that the appropriate directions be issued to the official respondents to provide protection to the petitioners.”

More significantly, Justice Manoj Bajaj without mincing any words took potshots at the way the petitions was drafted and said that, “After hearing learned counsel for the petitioners, this Court finds that the writ petition does not contain any pleading much less narration of a cause of action in favour of petitioner No. 2 for filing petition along with petitioner No. 1. Though the petition is verified by both the petitioners by appending their signatures, but no affidavit in support of the petition has been filed by petitioner No. 2. Apart from this, even in the representations submitted to the official respondents, petitioner No. 2 has not portrayed any grievance. Resultantly, this Court finds that the writ petition on behalf of petitioner No. 2 is without any valid cause of action and therefore, qua him, the petition is dismissed on this ground.”
While not finding much substance in the claims made by petitioner No. 1, the Court then points out that, “Considering the pleadings and submissions of learned counsel, this Court finds that petitioner No. 1 also does not deserve any concession, particularly when she  has failed to explain any reason for leaving the company of her husband. Besides, the petitioner No. 1 has given the address of her matrimonial home in the petition, but has claimed that she is residing at different places in district Jhajjar.”

More damningly and most significantly, it is then pointed out by the Court in simple and straight language without mincing any words that, “During the course of hearing, it is not disputed by learned counsel that no complaint has ever been made by petitioner No. 1 either against the husband or any of the other family members of the in-laws. Admittedly, the marriage is 12 years old and the children are also residing with the father. It does not appeal to prudence that after leaving the matrimonial home, the petitioner No. 1 has not contacted her parents, but chose to live alone at District Jhajjar. Except for the bald allegation that respondent No. 5 treated the petitioner No. 1 with cruelty, no supportive material has been placed on record by her. This Court finds that not only the petition for protection is founded on frivolous grounds, but it also amounts to abuse of the process of law. Apparently, the petitioner has not approached the Court with clean hands and has deliberately suppressed the material facts, therefore, this Court finds that she deserves to be saddled with costs.”

As a corollary, Justice Manoj Bajaj of the Punjab and Haryana High Court then finally concludes by observing directly and diligently that, “In view of the above, this Court does not find any reason to exercise the extra ordinary writ jurisdiction and the petition is dismissed with costs of Rs 25,000/- to be borne by petitioner No. 1. It is ordered that the costs be deposited in Bar Council of Punjab and Haryana, COVID-19 Relief Fund, within four weeks from today. Chief Judicial Magistrate, Rohtak shall ensure the recovery and deposits of the costs.”

To sum up, the long and short of this noteworthy judgment is that woman too now must be very cautious before approaching the Courts for relief in any particular case. It goes without saying that now woman must also ensure that she too just like men has approached the court with clean hands. She should no longer hope that like the past, she will immediately get an order in her favour just because she is a woman and normally it is seen that the courts always sympathizes with woman!

But times have changed now and the approach of the courts have also changed substantially! This latest verdict by none other than the Punjab and Haryana High Court is the biggest proof to substantiate this that a woman can no longer hope that she will promptly get relief from courts as courts now very carefully go deep into the concerned case and examine it from very close quarters and only after weighing the pros and cons pronounces its final decision! Now courts don’t hesitate to promptly impose court on the woman if it finds that there is no merit in her allegations, she just attempts to hoodwink the court and the precious time of the court has been wasted on utterly frivolous grounds having no merit at all!

So, without doubt, it is in the own best interest of a woman that she deeply examines all the allegations that she makes and finds it fully genuine and sustainable in any court. If she neglects here then she will have to cough up a huge amount as we see in this leading case.   There can be no denying it!

Sanjeev Sirohi

BMC’s Action At Kangana Ranaut’s Residence In Bandra Prima Facie Does Not Appear To Be Bona Fide And Smacks Of Mala Fides: Bombay HC

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   In a well-worded, well-analysed, well-justified and well-reasoned judgment titled Kangana Ranaut vs Municipal Corporation of Gr. Mumbai & Ors in Writ Petition (L) No. 3011 of 2020, a two Judge Division Bench of the Bombay High Court comprising of Justice SJ Kathawalla and Justice RI Chagla remarkably and rightly while restraining the Municipal Corporation of Greater Mumbai from carrying out any further demolition at Kangana Ranaut’s residence in Bandra could not restrain themselves from observing that if the Corporation acted with similar swiftness about the numerous unauthorized constructions in the city, this city would have been a completely different place to live in. Bombay High Court was absolutely shell shocked to see the astronomical speed with which the demolition work was carried out. It also noted that the civic body started the demolition work within 24 hours of giving the notice seeking a reply when the 33 year old actor Kangana Ranaut was not even in the State.

In this context, the former Maharashtra Chief Minister Devendra Fadnavis too jumped in the fray and did not hesitate to come out in full support of Kangana Ranaut who he felt was being selectively witch hunted because of her taking a strong stand against the Shiv Sena led State government in Maharashtra on a host of issues including the Sushant Singh Rajput death case. Fadnavis minced no words to condemn BMC’s move to demolish parts of Kangana’s office and raised serious question marks about why the Maharashtra government was not demolishing underworld don Dawood Ibrahim ‘s house located in Mumbai who is absconding ever since the March 12, 1993 serial bomb blasts in Mumbai which left about 257 dead and about 800 injured? Fadnavis further said that the Maharashtra government feels that our fight is not with Corona but with Kangana!

While narrating the key points and brief background of this notable case, the ball is set rolling by first and foremost observing in para 1 that, “The above Writ Petition is not on Board. The Associate of this Court has today at 11.30 a.m., placed before us a Praecipe along with an unaffirmed copy of the Writ Petition on behalf of the Petitioner, stating therein that as a result of a fall-out with certain influential people operating in the Administration and the Government, she has received a Notice dated 7th September, 2020 under Section 354A of the Mumbai Municipal Corporation Act, 1888 (‘the Act’) from the Executive Engineer, H/West Ward of the Municipal Corporation of Greater Mumbai (‘MCGM’) claiming that he has been satisfied that the Petitioner has unlawfully commenced, undertaken or carried out erection of building/erection of work, as described in the Schedule to the said notice. The said Notice further calls upon the Petitioner to produce documentary evidence proving authorization of the unauthorized work mentioned in the Notice; to stop the erection of the said building/execution of the said work forthwith and to produce permission, if any, obtained from the MCGM, within 24 hours from the service of the Notice. The Notice also provides that if the Petitioner fails to produce within 24 hours, the permission of MCGM to carry out the said works, MCGM shall under Section 354A of the Act, without any further notice, cause the said building or work to be pulled down at the risks and cost of the Petitioner.”

Furthermore, para 2 then says that, “It is further stated in the Praecipe that since 24 hours have elapsed, the Corporation is seeking to demolish the Petitioner’s residence today itself and therefore, the Court should restrain the Corporation from demolishing the premises of the Petitioner, who is currently out of Maharashtra and is expected to be in Mumbai today.”

As it turned out, it is then stated in para 3 that, “In view of the urgency and also in view of the fact that the Corporation has filed a caveat in this Court, the matter was directed to be placed at 12.30 p.m. today and the Advocate for the petitioner was asked to give notice to the MCGM.”

To put things in perspective, it is then pointed out in para 4 that, “Before we record as to what transpired before us at 12.30 p.m., we feel it necessary to set out a few facts in the matter:

4.1 The Petitioner is in use, occupation and possession of Bungalow No. 5, Chetak Row House, 41, Nargis Dutt Road, Pali Hill, Bandra (W), Mumbai – 400050 (‘the said Premises’).

4.2 On 8th September, 2020 at 10.03 a.m., MCGM pasted a Notice dated 7th September, 2020 on the outer door of the said Premises. The Notice under Section 354A of the Act, was addressed to the Petitioner by the Executive Engineer, H/W Ward, stating that the Executive Engineer is satisfied that the Petitioner has unlawfully commenced/is carrying out the erection of work described in the Schedule to the said Notice at the said Premises.”

Briefly stated, para 4.3 then mentions a long list of works observed “beyond approved” BCC Plan bearing No. CE/4349/BSIL/AH/dated 07.03.1979. It also directs petitioner to produce documentary evidence showing authorization of above mentioned works. It also directs petitioner to stop the erection of the said building/execution of the said work forthwith. It also further directs petitioner to produce permission approved by the competent authority in favour of erection of the building or execution of the work within 24 hours from the service of this notice and then warns that if petitioner fails to stop the execution of work forthwith or if stopped and fail to produce permission within 24 hours, then under Section 354(A) and in exercise of powers and function conferred upon me as aforesaid without any further notice cause the said building or work to be removed or pull down at petitioner’s risk and cost. It also pointed out that further note that you and /or any person directing/carrying out such erection/work shall be removed by Police Officer from the place where the building is being erected or work is being executed. It then noted: “And that any material, machinery, equipment, device or articles used in process of erection of building or execution of work will be caused to be removed without any further notice at your risk and cost. Lastly observed that, “Sketch (Not to the Scale).”

As a corollary, it is then stated in para 4.4 that, “The sketch shown in the Notice is extremely unclear and the ‘unauthorized’ works cannot at all be seen in this sketch.” This is a very important observation as the Bombay High Court says explicitly that the sketch is extremely unclear and in addition the ‘unauthorized’ works about which so much of brouhaha was made by the BMC cannot at all be seen in this sketch!

What then ensues is stated in para 4.5 that, “The Advocate for the Petitioner immediately served a Reply-Letter dated 8th September, 2020 to the Executive Engineer (B&F) H/W Ward and recorded therein that the allegations made by the MCGM in the said Notice are false and the same shall be forthwith dealt with by the Petitioner, who is expected to arrive in Mumbai on 9th September, 2020 and requested for a minimum of 7 days to respond and address the concern raised in the said Notice. By the said Reply-Letter, MCGM was called upon not to misuse its dominant position “to cause prejudice to the Petitioner with any hidden agenda coupled with ulterior motives”.”

Going ahead, para 4.6 then discloses that, “On 8th September, 2020, the MCGM filed its Caveat before this Court under Section 148-A of the Code of Civil Procedure, recording therein that the Petitioner is likely to file a Writ Petition before this Court challenging the Notice dated 7th September, 2020 issued by the MCGM to the Petitioner, pertaining to the said Premises and “LET NOTHING BE DONE in the above mentioned matter unless prior notice is given to the Corporation”. The MCGM also filed the Vakalatnama of its Advocate along with the said Caveat.”

Significantly, it is then stated in para 5 that, “The matter was called out at 12.30 p.m. However, for the first ten minutes, none appeared for the MCGM despite notice being served on them by the Petitioner’s Advocate. In the meantime, the Advocate for the Petitioner informed the Court that today morning at around 11.00 a.m., the MCGM moved its entire machinery and in the presence of several police officers, started carrying out the job of demolition by use of heavy machines and by now 40% of the said Premises is already demolished by the MCGM. Thereafter, an in-house Advocate of the MCGM appeared and informed the Court that they do not have a copy of the Writ Petition. The Advocate for the Petitioner informed the Court that a copy of the Writ Petition has been served on the MCGM. This Court inquired from the Advocate for the MCGM whether she at least had a copy of the impugned Notice issued by the Corporation to the Petitioner. The answer given was in the negative. When this Court inquired as to who is instructing her in the matter, she informed the Court that none of the Officers of the MCGM are present with her. Since the Court was of the view that the MCGM is trying to waste the time of the Court and in the meantime complete the demolition of the said Premises, the Advocate for MCGM was orally instructed by the Court to forthwith inform the Municipal Commissioner that the Court has directed the MCGM to forthwith stop the demolition work, in the light of today’s hearing pending before the Court. Since no clear assurance was coming from the Advocate that the Municipal Commissioner was so informed, the Court Associate at our instance tried to call up the Municipal Commissioner, whose cellphone was continuously switched-off. Ten minutes thereafter, the in-house Advocate for the Corporation informed the Court that the directions of this Court were conveyed to the Municipal Commissioner. About 15 minutes thereafter, Shri Sakhare, Senior Advocate, for MCGM appeared before the Court through video conferencing. In response to a query by the Court, he informed the Court that he too is not having a copy of the Writ Petition as well as copy of the impugned Notice and that the offices of the Corporation are not with him since he is appearing from his residence.”

More significantly, the Bench then without mincing any words lampoons in para 6 holding that, “We find the above conduct of the MCGM highly deplorable, more so since the MCGM was well aware that a Writ Petition would be filed by the Petitioner before this Court at any time, and an application seeking urgent orders will be moved by the Petitioner and MCGM had therefore filed a Caveat before this Court. We, therefore, informed Senior Advocate Shri Sakhare that such conduct on the part of the MCGM is totally unacceptable to the Court. However, Shri Sakhare immediately arranged to bring the Assistant Municipal Commissioner as well as the Executive Engineer (B&F) of H/W Ward of MCGM online to answer the queries raised by the Court.”

What’s more, it is then disclosed in para 7 that, “In response to the queries put to the Assistant Municipal Commissioner, H/W Ward as well as the Executive Engineer, they have informed the Court as follows:

7.1 That on 5th September, 2020 i.e. Saturday, the Building Mukadam whilst he was in the H/West Ward, noticed some work going on in the said Premises and also certain debris lying outside the said Premises.

7.2 The Mukadam informed about the same to the Assistant Engineer (B&F) of the MCGM.

7.3 The Assistant Engineer (B&F) of the MCGM, who is the Field Officer, informed about the same to the Designated Officer, (B&F), who is the Executive Engineer of H/W Ward of the Corporation.

7.4 The Executive Engineer along with others visited the said Premises on 7th September, 2020 at 11.00 a.m. (Monday), where Shri Nikhil Surve, Manager of the premises was also present. After Shri Nikhil Surve took permission from Ms. Rangoli, sister of the Petitioner over the phone, the Executive Engineer and others were given access to the said Premises. The Executive Engineer and others inspected the said Premises and prepared inspection notes, inspection report and also notice under Section 354A, addressed to the Petitioner, on the same day i.e. 7th September, 2020, and pasted the Notice on the outer door of the said Premises on 8th September, 2020 (Tuesday) at 10.03 a.m.

7.5 Exactly after 24 hours, MCGM started the demolition work, which is stopped few minutes back in view of the oral directions of this Court.”

Most significantly, it is then clearly and convincingly enunciated in para 8 that, “Section 354A of the Act (which is invoked by the MCGM by issuing the impugned Notice dated 7th September, 2020), sets out the ‘power of Commissioner to stop erection of building or work commenced or carried on unlawfully.’ From the works set out in the Notice, it is clear beyond any doubt that the works which are ‘unauthorised’ have not come up overnight. However, all of a sudden, the Corporation appears to have overnight woken up from its slumber, issued Notice to the Petitioner, that too when she is out of the State, directing her to respond within 24 hours, and not granting her any further time, despite written request, and proceeding to demolish the said Premises upon completion of 24 hours. Though the manner in which the MCGM has proceeded to commence demolition work of the said Premises, prima facie does not appear to be bonafide and smacks of malafide, we are giving an opportunity to the MCGM to explain its stand/conduct on Affidavit by 3.00 p.m. tomorrow.”

While rapping the MCGM on its knuckles, the Bench then also makes it a point to also say the unpalatable truth in simple, straight and suave language in para 9 that, “We cannot help but mention here that if the MCGM would act with similar swiftness qua the numerous unauthorized constructions in this City, the City would be a completely different place to live in.”

Finally, we then see that the Division Bench of Bombay High Court clearly, categorically and convincingly holds in para 10 that, “In the circumstances, we pass the following Order:

(i)                         We allow the Petitioner to carry out the necessary amendments to the Petition;

(ii)                      We direct the MCGM to file its affidavit in Reply by 3.00 p.m. tomorrow.

(iii)                   In the meantime, the MCGM is restrained from carrying out any further demolition qua the said Premises mentioned in the impugned Notice.

(iv)                   Stand over to 10th September, 2020 at 3.00 p.m.

No doubt, the MCGM and the Maharashtra State Government must seriously introspect after going through this latest, landmark and extremely laudable judgment by a two Judge Division Bench of the Bombay High Court in detail. No elected government nor the MCGM can ever dare to say goodbye to the “due process of law” and equality as enshrined in our Constitution under Article 14 which talks about equality and equal protection of law for all the citizens of India! Kangana Ranaut is a famous Indian actress with an impeccable reputation and the MCGM and the State Government should not have acted with undue haste in demolishing her residence in Bandra in Greater Mumbai.

On the contrary, the illegal houses like that of dreaded gangster Dawood Ibrahim along with others which the Courts have also sanctioned to be demolished must be promptly demolished by BMC and they should too not be given a long rope under any circumstances as most unfortunately we have been seeing till now as was pointed out even by former Maharashtra CM Devendra Fadnavis and even the Bombay High Court too has pointed this out most emphatically in this leading case also! Petty politics should not be allowed to triumph over our national interests under any circumstances as it gives a bad name to our country and severely damages the reputation of our country beyond repair where the high and the mighty are able to easily mould the law as per their own whims and fancies! There can be no denying or disputing it!

Sanjeev Sirohi

Lathi Linked To Village’s Identity, Not A Weapon Of Assault Simpliciter: SC

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          In a fresh, favourable and fine ruling titled Jugut Ram vs. The State of Chhattisgarh in Criminal Appeal No. 616 of 2020 (Arising out of SLP(Crl.) No. 7416 of 2018) in exercise of its criminal appellate jurisdiction delivered by a three Judge Bench of the Apex Court on September 16, 2020, it was made absolutely clear that the fact that a lathi is also capable of being used as a weapon of assault, does not make it a weapon of assault simpliciter. The deceased in this notable case died a day after the accused assaulted him with a lathi on the head. The subsequent chain of events shall be discussed later.

To start with, this latest, landmark and laudable judgment authored by Justice Navin Sinha for himself, Justice RF Nariman and Justice Indira Banerjee sets the ball rolling after granting leave in para 1 by observing in para 2 that, “The appellant avails his conviction under Section 302 of the Indian Penal Code (in short, “IPC”) and the consequent sentence of life imprisonment, upheld by the High Court.”

On the one hand, it is pointed in para 3 that, “Ms. Namita Sharma, learned counsel for the appellant, submits that all the four witnesses are related to the deceased. The two independent witnesses were not examined. The serological report with regard to the blood group of the deceased matching that alleged to have been found on the lathi have not been established. The recovery of the lathi has not been properly proved. The deceased did not die immediately, but succumbed to the injuries in the hospital. The assault was at spur of the moment with no premeditation. The appellant had also suffered injuries.”

On the other hand, it is then pointed in para 4 that, “Learned counsel for the State, Sri Sourav Roy opposing the appeal submits that the deceased was in possession of the field. The appellant was the aggressor. The deceased succumbed on the spot. The intention to cause death is apparent from the assault made on the head, a sensitive part of the human body. The appellant  cannot urge to have acted in self defence as he was the aggressor. He relies on State of A.P. vs. S. Rayappa, (2006) 4 SCC 512 and Laltu Ghosh vs. State of West Bengal (2019) 15 SCC 344, to contend that the evidence of related witnesses cannot be discarded.”

As a corollary, the Bench then holds in para 5 that, “We have heard learned counsel for the parties at length. There existed a civil land dispute between the parties. The occurrence is stated to have taken place on 23.11.2001 at about 02:00 P.M. while the deceased was harvesting crops. The appellant assaulted him with a lathi on the head. The deceased expired in the hospital the next day at about 07:45 P.M. The post mortem report proved by the Doctor, P.W. 13 found two contusions on the left and right parietal portion and fracture on the left parietal bone opining it to be dangerous to life. Other injured witnesses have confirmed that the appellant also suffered injuries in the occurrence.”

Frankly speaking, it is then disclosed in para 6 that, “The High Court on appreciation of evidence has come to the conclusion that the assault was not premeditated but had taken place in a heat of passion due to a land dispute. If the appellant had the intention, nothing prevented him from further assaulting the deceased. Nonetheless it maintained the sentence of the appellant under Section 302, IPC because death had taken place pursuant to the assault by him.”

Most significantly and most remarkably, it is then clearly and convincingly held in para 7 that, “A lathi is a common item carried by a villager in this country, linked to his identity. The fact that it is also capable of being used as a weapon of assault, does not make it a weapon of assault simpliciter. In a case like the present, of an assault on the head with a lathi, it is always a question of fact in each case whether there was intention to cause death or only knowledge that death was likely to occur. The circumstances, manner of assault, nature and number of injuries will all have to be considered cumulatively to decipher the intention or knowledge as the case may be. We do not consider it necessary to dilate on the first principles laid down in this regard in Virsa Singh vs. The State of Punjab 1958 SCR 1495, which stand well established. Suffice it to notice from precedents that in Joseph vs. State of Kerala (1995) SCC (Crl.) 165, the appellant dealt two blows on the head of the deceased. The deceased died two days later. The post mortem report found lacerated injury on the head and internal examination revealed fracture to the occipital bone extended up to the temporal bone. The High Court convicted the appellant under Section 302 IPC holding that the injury caused by the lathi was sufficient to cause death of the deceased. This Court observed as follows:

“3. …….The weapon used is not a deadly weapon as rightly contended by the learned counsel. The whole occurrence was a result of a trivial incident and in those circumstances the accused dealt two blows on the head with a lathi, therefore, it cannot be stated that he intended to cause the injury which is sufficient (sic). At the most it can be said that by inflicting such injuries he had knowledge that he was likely to cause the death. In which case the offence committed by him would be culpable homicide not amounting to murder. We accordingly set aside the conviction of the appellant under Section 302 IPC and the sentence of imprisonment for life awarded thereunder. Instead we convict the appellant under Section 304 Part II IPC and sentence him to five years RI.”

While citing the relevant case law, it is then noted in para 8 that, “In Chamru Budhwa vs. State of Madhya Pradesh, AIR 1954 SC 652, the appellant dealt a blow on the head of the deceased with a lathi and which proved fatal. The injury was medically opined sufficient in the ordinary course to cause death. Conviction under Section 302, IPC followed. This court observed as follows:

“5. It now remains to consider whether the offence which he committed falls within the first part or the second part of Section 304 of the Indian Penal Code. When the fatal injury was inflicted by the appellant on the head of the deceased by only one blow given in the manner alleged by the prosecution it could as well be that the act by which death was caused was not done with the intention of causing death or of causing such bodily injury as is likely to cause death. The act appears to have been done with the knowledge that it was likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death within the meaning of Part II of Section 304 of the Indian Penal Code.

6. We accordingly allow the appeal to this extent that the conviction of the appellant under Section 302 of the Indian Penal Code and the sentence of transportation for life awarded to him will be set aside, but the appellant will be convicted of having committed the offence under Section 304 Part II of the Indian Penal Code and will be sentenced to seven years’ rigorous imprisonment.””

On a similar vein, while citing the other relevant case laws pertaining to lathi are then discussed in para 9 which states that, “In Gurmukh Singh vs. State of Haryana, (2009) 15 SCC 635, the deceased died three days later after an assault on the head with a lathi opined to be sufficient in the ordinary course of nature to cause death. Holding that the assault was made on the spur of the moment without premeditation  the conviction was altered from one under Section 302 to Section 304 Part II and a sentence of seven years was handed. Similarly in Mohd. Shakeel vs. State of A.P. (2007) 3 SCC 119, the appellant had caused only one injury and had suffered injury himself also. Altering the conviction from under Section 302 IPC to 304 Part II, the appellant was sentenced to the period undergone since 1999.”

Be it noted, it is then observed in para 10 that, “We do not consider that Laltu Ghosh (supra) and S. Rayappa (supra), with regard to credibility of related witnesses, have any relevance to the issue in question being decided by us.”

As it turned out, it is then held in para 11 that, “We accordingly alter the conviction of the appellant from Section 302 IPC to Section 304 Part II, IPC. The appellant is in custody since 2004. He has already undergone the maximum period of sentence prescribed under the same. The appellant is, therefore, directed to be set at liberty forthwith unless wanted in any other case.” Finally, the last para 12 envisages that, “The appeal is allowed.”

To sum up, the bottomline of this noteworthy judgment is that lathi is linked to a villager’s identity and although it is also capable of being used as a weapon of assault, it is certainly not a weapon of assault simpliciter. This alone explains why the Bench altered the conviction of the accused from Section 302 IPC to Section 304 Part II IPC. This resulted in the early release of the appellant. Very rightly so!

Sanjeev Sirohi

Kerala HC Issues Some Future Guidelines For Maintaining Rape Victim Anonymity In Cases Filed Before It

Posted on | by Sanjeev Sirohi | Leave a Comment on Kerala HC Issues Some Future Guidelines For Maintaining Rape Victim Anonymity In Cases Filed Before It

In a fresh and significant development, the Kerala High Court has just recently on September 9, 2020 in a latest, landmark and extremely laudable judgment titled X vs State of Kerala in Case No. : Crl. MC No. 3463 of 2020 issued some future guidelines for maintaining rape victim’s anonymity in the matters instituted before it. Justice PB Suresh Kumar who authored this recent, remarkable and righteous judgment while considering a petition arising out of a bail order passed by POCSO Court had observed that in several matters instituted before the High Court the identity of the victim is disclosed directly or indirectly. In some matters, identity is disclosed in the pleadings and in some others, identity is disclosed in the documents produced along with the pleadings. This most condemnable and dangerous tendency has to be reined in and this is exactly what this brilliant, bold and balanced judgment seeks to do!

To start with, the ball is set rolling first and foremost in the introductory part as mentioned in para 1 which states that, “This is a proceedings challenging Annexure-4 order passed by the Special Court for Trial of Offences under the Protection of Children from Sexual Offences Act, Thalassery, in terms of which the sole accused in Crime No. 94 of 2020 of Panoor Police Station renumbered as Crime No. 33 of 2020 of CBCID, Kasaragode was enlarged on bail.”

While dwelling on the facts of the case, it is then enjoined upon in para 2 that, “The petitioner is the mother of the victim in the case. The victim is aged about 10 years. The second respondent who is the accused in the case is a teacher in the school where the victim is pursuing her studies. The accusation in the case is that the accused committed sexual assault on the victim girl on several occasions in between 15.01.2020 and 02.02.2020 at the bathroom of the school. The case was, therefore, registered for offences punishable under Sections 376(2)(f), 376AB and 354B of the Indian Penal Code (the IPC) and Sections 5(f), 5(l) and 5(m) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (the POCSO Act).”

Moving on, it is then illustrated in para 3 that, “The accused, on his arrest, moved the Special Court for bail on a few occasions and all the applications preferred by him in this regard have been dismissed. The accused, thereupon, moved this court for bail, and this court also declined bail to the accused in terms of Annexure – 3 order. Later, since the final report in the case has not been filed despite the accused being in custody for 90 days, the accused filed Crl.M.C.No.890 of 2020 before the Special Court for bail under Section 167(2) of the Code of Criminal Procedure (the Code). When the said application was pending, the final report in the case has been filed alleging commission of offences punishable under Sections 323 and 324 of the IPC and Sections 75 and 82 of the Juvenile Justice (Care and Protection of Children) Act, 2015. Annexure – 6 is the final report. It is, however, stated in Annexure – 6 final report that the investigation in the case as regards the remaining offences is yet to be completed, and as and when the investigation is completed, supplemental final report would be filed in the matter. When the final report was filed, the accused filed Crl.M.C.No.1559 of 2020 in the pending proceedings, praying for orders to treat the proceedings as one instituted under Section 439 of the Code. In the meanwhile, the investigating officer in the case filed an application seeking permission of the court for conducting further investigation in the matter under Section 173(8) of the Code and the Special Court allowed the said application. The Special Court took the view that insofar as the investigation in the case has not been completed despite the accused being in custody for 90 days, the accused is entitled to bail, and accordingly he was enlarged on bail in terms of Annexure – 4 order. As noted, the petitioner is aggrieved by Annexure – 4 order.”

But the petitioner’s arguments failed to impress the Kerala High Court.  The accused was found to be entitled to bail under Section 167(2) of the Code. The Criminal M.C. was found to be without merits and the same was accordingly dismissed!

Most significantly and most remarkably, the Kerala High Court in its final order without mincing any words goes on to observe that, “It is observed that in several matters instituted before this court where victim anonymity is to be maintained, the identity of the victim is disclosed directly or indirectly. In some matters, identity is disclosed in the pleadings and in some others, identity is disclosed in the documents produced along with the pleadings. It is also observed that though documents revealing the identity of the victim are produced in sealed covers in the light of the decision of the Apex Court in Nipun Saxena and another v. Union of India and others, (2019) 2 SCC 703, there is no system in place to maintain victim anonymity, once the sealed covers are opened by the court. In the case on hand, it is observed that the opened cover containing the documents were sent back to the section and brought back from the section to the court on the subsequent hearing dates. It is also observed that there is no system in place for disposal of the documents produced in sealed covers, after the final disposal of the case. Similarly, it is observed that the registry is insisting copies of the documents revealing the identity of the victims to be given to the opposite parties in the matter. There is no system in place to maintain victim anonymity in such situations. Needless to say, the procedure in place to maintain victim anonymity is against the spirit of Section 228A of the Indian Penal Code, Sections 24(5), 33(7) and 37 of the Protection of Children from Sexual Offences Act, 2012, and the decision of the Apex Court in Nipun Saxena. In the circumstances, the following directions are issued for future guidelines for maintaining victim anonymity in the matters instituted before this court:

1.  The criteria for deciding the identity of the victim shall include the identity of the family of the victim, the school/college of the victim, the place of work of the victim, the relatives of the victim, the neighbourhood of the victim and all other information from which the identity of the victim would be revealed.

2.  In all proceedings instituted by or on behalf of the victim and against them, documents in which the identity of the victim is disclosed, either required in terms of the rules of the court or produced by the parties concerned to substantiate their case, shall be insisted to be filed in a sealed cover.

3.  The registry shall designate an officer for the proper custody of documents produced in, sealed covers in cases where victim anonymity is to be maintained and shall provide to that officer necessary infrastructure for keeping custody of the documents. Such officer shall be bound by the highest standards of confidentiality.

4.  After the matter is numbered, registry shall forward the documents received in sealed covers in a self-sealing bag/envelope of appropriate size preferably one having a provision for tamper proof seal as well, or in other similar tamper proof bag/envelope, after affixing on it a label indicating the particulars of the case under the signature of the Filing Scrutiny Officer concerned to the designated officer for custody and that officer shall ensure that the documents are made available to the court as and when the matters are listed for hearing.

5.  If the self-sealing bag/envelope in which the documents are kept is opened by the court for perusal of the documents, after the purposes of the court, the same shall be kept in a fresh self-sealing bag/envelope and returned to the designated officer, after affixing on the same a new label indicating the particulars of the case under the signature of the Court Officer concerned. If the self-sealing bag/envelope is opened subsequently by the court, the same procedure directed herein-above shall be repeated.

6.  The parties producing documents disclosing the identity of the victims need not have to keep or give copies of the same to the opposite parties and they need only refer to such documents in their pleadings.

7.  If the lawyers appearing against the victims require/need to peruse the documents in the sealed covers, they shall peruse the same with the permission of the court and if they are permitted by the court to peruse the documents, the documents shall be preserved in the same manner indicated in the preceding directions.

8.  These directions shall be in force until replaced by the Honourable the Chief Justice by appropriate practice instructions.

To sum up, the key point of this well-articulated, well-reasoned and well-drafted judgment are the various guidelines that have been just enumerated above that are imperative for maintaining the rape victim anonymity in cases filed before it. All these guidelines must be followed sincerely and strictly by all the concerned courts in letter and spirit. It brooks just no argument and no delay anymore now!

Sanjeev Sirohi