Properties And Rights Which Are Transferable And Which Are Non-Transferable.

Renuka Mishra


The Transfer of Property Act (hereinafter mentioned as TOPA, 1882) was enacted in the year 1882 to regulate the process of transferring of property and various other conditions associated with it. Before the enactment of TOPA, 1882 these procedures were governed by the principles of English Law and equity. The term property hasn’t been clearly defined but the Act gives it a very wide scope and ambit.[1]

Property and its types
The word ‘property’ has not been specifically defined by the legislature. The judiciary has however interpreted it to be of widest amplitude and most generic in legal sense Property is not only something which is subject to ownership but also includes dominium or right or ownership or partial ownership and is indicative of every possible interest that the party may have.[2] The Act specifically encompasses two types of property namely (i) movable and (ii) immovable.

Movable Property – movable property shall mean property of every description, except immovable property;[3]

Immovable Property – immoveable property does not include standing timber, growing crops or grass; instrument , means a non-testamentary instrument;[4] immovable property shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth; [5] The capacity in a thing of suffering alteration vis-a-vis surface is its movability whereas immovability pertains to such alteration.[6]

Transfer of Property
Transfer of Property has been defined under Section 5 of the Act. As per the aforementioned provision the transfer of property is an act by which a living person conveys property in present or future, to –
One or more other living persons; or
To himself; or
To himself and one or more other living person
The word living person are also said to include-
A company, or
An association or body of individual, whether incorporated or not, but nothing in this Act affects any law relating to transfer of property to or by companies, associations or bodies of individuals.[7]
The word himself mentioned herein implies that an owner of a property, in one capacity, may transfer it to himself to hold as owner in other capacity.[8] The word living person only includes within its ambit alive human beings, a person disposing off his property by will does not amount to living person as the transfer takes place only after his death. The provisions expressly mentions company or association to include them under it. [9] In ordinary circumstances transfer implies change of ownership and implies the presence of two persons namely, transferor and transferee.

The word ‘transfer’ is defined in Section 5 through ‘conveyancing’ implying transfer of right in property inter vivos. [10] Act includes five modes of conveyances namely, sale, gift, exchange, mortgage and lease. The first two convey absolute interest and the latter three limited interest.[11] The transfer of property may be done immediately or on a future date.

What may be transferred
Section 6 of the Act reads as, Property of any kind may be transferred, except as otherwise provided by this Act or by any other law for the time being in force-,[12]
Therefore, this provision of the Act deals with the demarcation between transferable and non- transferable property. The section has 9 sub clauses, each of which explains the different kinds of transfer of property that. Everything else according to the Act can be legally transferred in various means and forms.[13]

The different exceptions are summarized as follows:
Section 6(A): Spes Succession Is
This clause provides that the following cannot be transferred:
The chance of an heir-apparent succeeding to an estate;
The chance of a relation obtaining a legacy on the death of kinsman;
Any other mere possibility of a like nature.
These restrictions are based on Public Policy. Rights falling in this category are uncertain and are not vested or contingent interests.

Illustration: A owns a property. If A passes away, B will get the property, because he is A’s legal heir. However, if B during the lifetime of A decides to transfer his chance to gain a right over the property to X, it will be deemed to be an invalid transfer. This is because one cannot transfer his chance of succeeding to an estate.

However, this does not meant that in case a widow who has an interest in her husband’s property, cannot transfer such interest that she has already inherited owing to her incidental right of survivorship. Widows are allowed to validly partition the properties and allot separate partitions to each.

When an heir received advantage for giving up his future right to property, it was held that he could not be allowed benefit of the doctrine of spes successionis. He became estopped from claiming his share from the property – Sheshammal v Hasan Khani Rawther, AIR 2011 SC 3609.[14]

In Suryaprabhakar Rau v. Gummudu[15] it was held that: when the parties entered into a contract, there was no certainty that the land could be enfranchised, although he was expecting it to be so done, and agreed to transfer his interest in the property when the event had taken place. It was held, this could not be more than a transfer of expectation and, as such, offended this section, and the agreement was void.

Section 6(B): Right of Re-entry
As per this clause, a mere right of re-entry for breach of a condition subsequent cannot be transferred to anyone except the owner of the property affected thereby. The right of re-entry being a mere incident of the rights of the owner in leased premises, its transfer is prohibited by Law.

Illustration: Where X grants a lease of land to Y for 5 years. At the expiry of 5 years he transferred the right of re-entry to Z. This transfer shall be valid.

In Vaguram v. Rangayynagar, (31 All 304)[16], the lessee committed a breach of the convenant to pay rent and incurred forfeiture. Thereupon, the lessor leased the lands to another to take possession of the land from the tenant in default. The transfer was held to be invalid.

Section: 6(c): Easement
An easement is a right to use or restrict the use of another over a property in some way or the other. It has been defined as the liberty, privilege or advantage one may have in the lands of another. An easement cannot be transferred apart from the dominant heritage. Its scope is limited to easement which exist for the benefit of the dominant tenement and has no applications to easement not connected with possession or ownership of dominant heritage.[17]

Illustration: If A, the owner of a house, has a right of way over the adjoining land of B. A cannot transfer this right without transferring the house.

In the case of Satyanarayana v Lakshmayya , AIR 1929 Mad 79., it was stated that this clause contemplates transfer of existing easement and not the creation of one. [18]

Section 6(d): Restricted interest
According to this clause, a person cannot transfer an interest that has been restricted in its enjoyment of him. This is because a transfer of such an interest will defeat the purpose of the restriction. Various kinds of interests have been held to be restricted under this clause, such as;[19]
A religious office
Emoluments to a priestly office
A right of pre-emption
Service tenures

Illustration: X has an exclusive right of conducting priestly ceremonies in a temple. He is the sole owner of the right and cannot transfer that right to his friend B who is a mechanic by profession.

S. Rathinam v LS Mariappan,[20] AIR 2007 SC 2134 merely because donor mother has reserved to herself possession and enjoyment of property gifted did not render gift deed in favor of minor ineffective.

Section 6(dd): right to future maintenance
As per this provision inserted in the year Amending Act of 1929, a right to future maintenance in whatsoever manner arising, secured or determined, cannot be transferred. Maintenance being for the personal benefit of a person, therefore cannot be transferred.

In the case of Ashfaq Mohammad Khan v Nazir Banu,[21] AIR 1942 Oudh 410 it was held that right to future maintenance whether acquired under a deed cannot be attached in execution of decree.

Section 6(e): Right to Sue:
This clause provides that a mere right to sue cannot be transferred. The word mere implies that the transferee acquires no interest in the subject of transfer other than the right to sue as an ostensible owner of the property claimed of which, it may be, the real owner is somebody else[22]. However, property with an incidental right to sue for damages may be transferred[23].

Illustration: If A publishes libel of B. B can sue A as defamatory statements have been published. However, B cannot transfer this right to C and allow him to recover damages.

In Palani Goudhan v. Nallapa Goundan[24], an ex-minor transfers property that has without authority been sold by his guardian during his minority, he transfer not a mere right to sue but his interest on the property.

Section 6(f) Public office
A Public office is held for qualities personal to the incumbent, having a public duty attached to it. Person being chosen due to his qualities, cannot substitute another in his place. The office confers an interest which is restricted in its enjoyment to the incumbent person.

Illustration: A police officer cannot transfer his job to his friend who is a salesman. He can however attach his salary within certain limits as has been provided under section 60 of the Code of Civil Procedure, 1908.

In Divisional Accounts Officer v Radha Kissen,[25] AIR 1959 Cal 666 – the abovementioned clause does not apply to arrears of a family.

Section 6(g): Stipends and Pensions:
The clause lays down:
Stipends allowed to military, naval, air force and civil pensioners of Government
Political pensions,
Cannot be transferred. The object is to confer benefit of the stipend or pension to the recipients in the capacity of a pensioner.

The term political pension has a wider import than the term pension . depending on whether the pension is granted or continued by Government on political considerations. It is also exempted from attachment in execution of decree against the pension holder under the Code of Civil Procedure, 1908.

In Sundariya Bai Chaudhary v UOI,[26] AIR 2008 MP 227 (DB)—Stipends allowed to officers and political pensions cannot be transferred.

Section 6 (h): Nature of interest, Unlawful Object, Disqualification of Transferee:
According to this sub-section, transfer of any property that can lead to an act that is (1)Against the interest affected thereby, or (2) For committing an act that is for an unlawful object or consideration, or, (3) When is transferred to someone who is legally disqualified to be a transferee, then such transfer shall be deemed to be invalid.

Illustration: A, B and C enter into an agreement for the division among them of gains acquired by fraud. The agreement is void, as the consideration for it is lawful.

Joydev Sen v State of West Bengal, [27]AIR 2010 (NOC) 256 Cal—the petitioners were not entitled to obtain a stamp vending license on the basis that their father held such license.

Section 6(i): Untransferable Interests:
This clause was added in the year 1885 to remove incongruity in the non- transferability of occupancy rights. Any tenant having an untransferable right of occupancy cannot transfer his interest.

Illustration: A farmer cannot give up his interest in a holding to pay his debt to a creditor.

In Jagat Narain v, Laljee[28], the Allahabad High Court has held that where a Sridhar transfers his holding and subsequently becomes a Bhumidar of the holding, the transfer becomes effective with the aid of Section 43and is not hot by this clause.

Mata Din v Kazim Husain (1891 ILR 13 All 432, p 473; Bansigopal vs K Banerji AIR 1949 All 433.
Jones v Skinner (1835) 5 IJ 546
General clauses Act, section 3(38)
Section 3, Transfer of Property Act, 1882.
General clauses Act, section 3(26)
Sukry Kurdepa v Goondakull (1872) 6 Mad 71.
Transfer of Property Act, Sanjiva Row, Volume 1, Edition 7th.
Naranbhai Dahyabhai v Suleman Isujbi, (1975) 16 GLR 289 (294) (Guj).
Weavers Mills. Ltd. v. Balkis Ammal, AIR 1969 Mad 462.
Official Assignee v T.D. Tehrani, AIR 1972 Mad 187 (188).
Law of Properties, S.R. Myneni.
Transfer of Property Act, Section 6, 1882.
H.R. Khanna and P.M. Bakshi, Mulla, The Transfer of Property Act ,7th ed.,Universal Law Publishing, (1985).
Sheshammal v Hasan Khani Rawther
Suryaprabhakar Rau v. Gummudu, AIR1925Mad 885.
Vaguram v. Rangayynagar, 31 All 304
Satyanarayana v Lakshmayya, AIR 1929 Mad 79.
Satyanarayana v Lakshmayya , AIR 1929 Mad 79
Avtar Singh, Textbook on The Transfer Of Property Act, 1882, Universal Law Publishing, 2nd Edition, 2011, (page44).
S. Rathinam v LS Mariappan, AIR 2007 SC 2134
Ashfaq Mohammad Khan v Nazir Banu,[21] AIR 1942 Oudh 410
Rushi Behera v. Poncha Behera, 1976 Cut LT 330
New Central Jute Mill Co. v. Rovers Steam Navigation Co, AIR 1959 Cal 352.
Palani Goudhan v. Nallapa GoundanAIR 1951 Mad 817
Divisional Accounts Officer v Radha Kissen, AIR 1959 Cal 666
Sundariya Bai Chaudhary v UOI, AIR 2008 MP 227
Joydev Sen v State of West Bengal, [27]AIR 2010 (NOC) 256 Cal
Jagat Narain v, Laljee , AIR 1965 All 504.

State Has Solemn Constitutional Duty To Assist Court In Dispensation Of Justice; Cannot Behave Like Private Litigant: SC

        It must be said right at the outset before saying anything else that the Supreme Court most recently in a recent and notable judgment titled M/S Granules India Ltd. Vs Union Of India And Others in Civil Appeal No(s). 593-594 of 2020 (Arising out of SLP (Civil) No(s). 30371-30372 of 2017) in exercise of its civil appellate jurisdiction has minced just no words to remark most unequivocally and unambiguously that, “State, as a litigant, cannot behave as a private litigant, and it has solemn and constitutional duty to assist the court in dispensation of justice.” The Apex Court was considering an appeal against the High Court order which had dismissed a writ petition challenging denial of exemption from Customs duty on the ground that the authorities of the State were also unaware of the clarificatory notification and neither did the petitioner bring it on record. No doubt, it is high time and the State must now without fail certainly pay heed to what the top court of our country has said so clearly and convincingly which has lot of merit in it and therefore must be adhered to in totality!

To begin with, this latest, landmark and laudable judgment authored by Justice Navin Sinha for himself and Justice Krishna Murari of the Apex Court Bench sets the ball rolling in para 2 by first and foremost observing that, “The appellant is aggrieved by orders dated 07.12.2016 and 14.06.2017, rejecting the writ petition as also the review application arising from the same.”

While elaborating in detail, the Bench then observes aptly in para 3 that, “The appellant, during the year 1993 imported 96 tons of the chemical “Acetic Anhydride” under three Bills of Entry bearing nos. 290, 291 and 300 dated 01.12.1993, 01.12.1993 and 14.12.1993 through the Inland Water Container Depot (ICD), Hyderabad under the Advance Licence Scheme. It claimed clearance of the consignment free of import duty in terms of Customs Notification nos. 203/1992, 204/1992, both dated 19.05.1992. The notification contained a scheme permitting import without payment of customs duty subject to fulfillment of certain norms and conditions. The Notification nos. 203/1992 and 204/1992 were amended by a Notification no. 183/1993 dated 25.11.1993, by which the subject imports became liable for duty, the exemption having been withdrawn. The Notification dated 25.11.1993 was further amended by another clarificatory Notification no. 105/1994 dated 18.03.1994 permitting the import of the chemical without customs duty subject to certain terms and conditions. The clarificatory notification was necessitated to obviate the difficulties faced by the importers like the appellant, who had imported the chemical under the advance licence issued by the Director General of Foreign Trade prior to the amendment Notification no. 183/1993 dated 25.11.1993.”

While continuing in the same vein, the Bench then further very rightly points out in para 4 that, “The appellant was allowed to clear the consignments under the aforesaid three Bills of Entry without payment of duty. Subsequently the respondents issued show cause notice under Section 28 (1) of the Customs Act, 1962 with regard to the same consignments as having been imported after 25.11.1993. The appellant made a representation on 20.11.1997 seeking exemption. It was considered favourably in respect of three other consignments under Bill of Entry No. 312 dated 12.09.1993, Bill of Entry No. 28 dated 10.02.1994 and Bill of Entry No. 27 dated 09.02.1994. The entire consignments were imported under the same advance licence. In pursuance of the show cause notice the appellant was held liable to duty by order dated 12.2.1998 with regard to the consignment under three Bills of Entry bearing nos. 290, 291 and 300 dated 01.12.1993, 01.12.1993 and 14.12.1993 respectively though these were also under the same advance licence. The respondents while considering the reply to the show cause notice and fixing liability for payment of customs duty did not make any reference to their notification dated 18.03.1994. The Commissioner (Appeals) on the same reasoning rejected the appeal leading to the institution of the writ application.”

Interestingly enough, it is then disclosed in para 5 that, “Dismissing the writ application, the High Court opined that no mandamus for exemption could be issued. The consignments were admittedly imported after 25.11.1993 and before the clarificatory notification dated 18.03.1994. Thus, there was no arbitrariness on part of the respondent. The appellant preferred a review application inter alia relying upon a Division Bench of the Andhra Pradesh High Court in Shri Krishna Pharmaceuticals Limited vs. Union of India, (2004) 173 ELT 14. Rejecting the plea, the High Court opined that since the appellant did not produce the clarificatory notification along with the writ petition and neither were the respondents aware of the clarificatory notification the appellant was not entitled to any relief.”

On the one hand, it is pointed out in para 6 that, “Shri B. Adinarayana Rao, learned senior counsel appearing on behalf of the appellant, submitted that denial of exemption to the consignment actually imported after 25.11.1993 under the advance licence obtained prior to 19.05.1992 notwithstanding the clarificatory notification dated 18.03.1994 holding the appellant liable for customs duty is completely unsustainable. Special Leave Petition (Civil) No. 14288 of 2004 (CC No. 5418/2004) preferred against the order in Shri Krishna Pharmaceuticals Limited (supra) was dismissed. The mere failure to enclose a copy of the notification could not be a ground for denial of relief. Denial of exemption in the facts and circumstances of the case in view of the statutory notifications were per se arbitrary.”

On the other hand, it is then just aptly pointed out in para 7 that, “Learned counsel appearing for the State supported the order of the High Court and urged that the consignments having been imported after withdrawal of the exemption and before issuance of the clarificatory notification was justified.”

On the whole, the Bench then observes rightly after listening to both the sides in para 8 that, “We have considered the submissions on behalf of the parties and are of the considered opinion that the order of the High Court is completely unsustainable. The entire consignment was imported under one advance licence issued to the petitioner prior to 19.05.1992. The fortuitous circumstance that part of the consignment was actually imported prior to 25.11.1993 and the rest subsequent thereto is hardly relevant in view of the clarificatory notification dated 18.03.1994 that the exemption would continue to apply subject to fulfillment of the specified terms and conditions. It is not the case of the respondents that the consignments imported subsequently did not meet the terms and conditions of the exemption.”

Most remarkably, it is then very rightly held in para 9 that, “It is unfortunate that the High Court failed to follow its own order in a similar matter. The High Court further gravely erred in holding that the authorities of the State were also unaware of the clarificatory notification and neither did the appellant bring it on record. The State is the largest litigant as often noted. It stands in a category apart having a solemn and constitutional duty to assist the court in dispensation of justice. The State cannot behave like a private litigant and rely on abstract theories of the burden of proof. The State acts through its officer who are given powers in trust. If the trust so reposed is betrayed, whether by casualness or negligence, will the State still be liable for such misdemeanor by its officers betraying the trust so reposed in them or will the officers be individually answerable. In our considered opinion it is absolutely no defence of the State authorities to contend that they were not aware of their own notification dated 18.09.1994. The onus heavily rests on them and a casual statement generating litigation by State apathy cannot be approved.”

No doubt, it is a brief but brilliantly written judgment. Before concluding, it holds in the last para 11 that, “The impugned orders are therefore held to be unsustainable and are set aside. The appeals are allowed.” Also, it ably cites the relevant case law titled National Insurance Co. Ltd. vs. Jugal Kishore (1988) 1 SCC 626 in para 10 and briefly stated very rightly holds that, “This Court has consistently emphasized that it is the duty of the party which is in possession of a document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. This duty is greater in the case of instrumentalities of the State such as the appellant who are under an obligation to act fairly. The obligation on the part of the State or its instrumentalities to act fairly can never be over-emphasised.” There has not even an iota of doubt been left by the Apex Court Bench in this leading case to hold most clearly, convincingly and categorically that, “State, as a litigant, cannot behave as a private litigant, and it has solemn and constitutional duty to assist the court in dispensation of justice.”

Sanjeev Sirohi

Impact of Increasing Women in Indian law firms.

To some extent it’s understandable: for years, the Indian legal profession – particularly litigation – has been dominated by men, and most of the new law firms that rose in the nineties and noughties were headed by men. The (generally) male managing partners would often be busy trying to capture market share and executing the work; worrying about whether female lawyers were given the same opportunities as the men was for many an afterthought, if that.

The average percentage of women making up the partnership at 30 top Indian law firms, for which data was available, currently stands at 30%. At only 23% out of those 30 firms is that senior gender ratio above 40%; at a third of firms it’s below 20%. And amongst our Top 100 Corporate Dealmakers, only around 25% are women.

Samvad Partners stands out amongst all the larger firms with a gender balance of 64% in favour of women in its partnership of 14. “It just worked out that way, it was not planned that we had more women becoming partners,” explains partner Vineetha MG. “It is completely based on performance,” she adds, but agrees that it does help that the firm’s senior leadership has women in it. “It brings some sort of sensitivity to certain issues.”

Other larger firms with more balanced gender ratios include S&R Associates (46% are women out of 13 partners) and Rajani Associates (45% out of 13). And AZB & Partners, Shardul Amarchand Mangaldas and Cyril Amarchand Mangaldas are also above the average, with between 35% and 37%, out of more than 100 partners being women.

MG says that at most firms the gender imbalance is not necessarily intentional: “It depends on policies within the firm itself, how they look at development. I don’t see any firm in the market today actively trying to make some sort of discrimination. It has just resulted in that way, but it is also dependent on the environment: if you provide more opportunities, then women come out in a good way in those opportunities.”

Some of the firms that have struggled the most to increase diversity at the top, have also been making strides recently to address the deeper issues. At Khaitan & Co, only 9% of its partnership are women, but in its most recent promotion round in April 2019, more than half of the 11 new partners were women.

At IndusLaw, all four of its new partners made in April 2019 were women – in probably a first in the industry – increasing its ratio to 33%. At Cyril Amarchand Mangaldas and AZB & Partners this year, respectively 42% and 40% of new partners were women.

While a charge may occasionally be whispered by male colleagues that women are getting unfairly advantaged these days by firms trying to be more diverse, it is highly unlikely that firms which primarily value profitability and quality above most other factors would dilute their quality at the top. The fact is that many law firms have actively worked at improving their internal systems, which allows high performers, many of whom happen to be women, to shine and be recognised.

“The firm actively encourages diversity in all its avatars, especially gender,” explains Khaitan & Co executive director for HR, Amar Sinhji. “Towards making our firm more inclusive and supportive of women, a host of policies, including flexi time, work from home and truncated hours for returning mothers have recently been introduced. The firm is also introducing a structured mentoring programme beginning with our principal associates.”

With 50% of incoming campus recruits being women (“selected based strictly on merit”), Sinhji says that this would, “over the next couple of years positively skew the gender balance in the firm”.

Other firms at the lower-end in terms of gender balance, such as J Sagar Associates (JSA), which stands at 22% of its women being partners (dropping to 14% at the equity partner level), are also doing more. Joint managing partners Vivek Chandy and Amit Kapur explain in a statement that the firm now offered six months of maternity leave, in accordance with statutory requirements, had introduced creche facilities for working mothers, and has a flexible timings system to allow lawyers to “balance both work and needs of a young family”. And the leadership at JSA has historically also included two female joint-managing partners as well as female partners represented in “important decision-making committees” at the firm.

But, not everything is about getting systems in place either. A large part may simply be a new-found awareness, sensitivity and practical attitudes of some issues by male senior partners, of which they may have previously been (blissfully) ignorant.

“I think policies don’t always work,” says AZB Mumbai managing partner Zia Mody. “I’m a big believer in bespoke solutions, and that’s still possible for Indian law firms because of their size.”

“Not all our women get married and get pregnant at the same time,” she notes. “It’s possible for management to have bespoke conversations to understand the need of every woman separately. [When women ask for maternity leave or flexible working] there will be common concerns about time, ability, ‘will I lose out in the race?’, ‘will my career be affected?’

“At this time it’s very easy for partners or the team, to basically get irritated, etc, and that negativity feeds down to the woman in question, which then becomes a circle of diffidence and lack of confidence, and then she just quietly leaves. If you dive into that, it’s a problem, it’s a reality: there will be some disruption and unexpected availability, and therefore you need a backup that you bring in the beginning. You understand that a client won’t pay for an extra hand, but as an organisation you’re allowing the gap to be filled in and providing for limited redundancy for the period.”

“It’s an outlook change as well that’s required,” agrees Samvad’s MG about how the profession can increase participation of women at senior levels. But she adds: “As compared to other Asian countries, India is ahead.”

That is likely true: countries such as Japan, for instance, are well known for their dearth of women in corporate leadership positions, and the female partnerships at some of India’s largest firms are far more gender diverse than nearly all international firms.

So, as India’s top firms become more secure in their market position, with the most rapid growth behind them, many of are taking promising steps in the right direction.

However, it’s clear that no change will come without deliberate efforts.

Mandatory Time Line For Filing Written Statement Is Not Applicable To Non-Commercial Suits: Supreme Court

In a significant development, the Supreme Court most recently on January 20, 2020 in a latest, landmark and laudable judgment titled Desh Raj Vs Balkishan (D) Through Proposed LR Ms. Rohini in Civil Appeal No. 433 of 2020 [Arising out of Special Leave Petition (Civil) No. 6217 of 2019] in exercise of its civil appellate jurisdiction has clarified in no uncertain terms that the mandatory time-line for filing written statement is not applicable to non-commercial suits. It has held that as regards non-commercial suits, the time-line for written statement is directory and not mandatory. A Bench of Apex Court comprising of CJI Sharad A Bobde, Justice Surya Kant and Justice BR Gavai have held that the courts have the discretion to condone delay in filing of written statement in non-commercial suits.

To start with, the ball is set rolling in para 2 of this judgment after granting leave in para 1 by observing that, “This Civil Appeal is directed against order dated 26.11.2018 passed by the Delhi High Court whereby appellant’s revision petition against the order of the Civil Court which closed his right to file written statement under Order VIII Rule 1 of the Code of Civil Procedure, 1908 (hereinafter “CPC”) and struck-off his defence owing to repeated delays and non-adherence of prescribed deadlines, has been dismissed.”

While dealing with the facts of the case, it is then pointed out in para 3 that, “The appellant and the respondent are brothers and own one floor each of ancestral property bearing No. 142 in Devli Village, Delhi. The ground floor was possessed and owned by the respondent, whereas the first floor was in the name of the appellant.”

While going into the nitty-gritty, it is then enumerated in para 4 that, “It has been claimed that in February 2017, the respondent approached the appellant offering to purchase the first floor of the ancestral property. Subsequently, an agreement to sell was entered into between the parties on 17.03.2017 for total consideration of Rs 7.5 lakhs, of which an amount of Rs 1 lakh was paid as earnest money to the appellant. This agreement was subsequently not honoured and a legal notice was served upon the appellant by the respondent on 13.04.2017, calling upon him to accept consideration and perform his part of the contract.”

While continuing in the same vein, it is then envisaged in para 5 that, “Claiming that the appellant was attempting to sell the suit property to third parties, the respondent later approached the Civil Court praying for a decree of specific performance of the agreement to sell dated 17.03.2017 by directing the appellant to receive the balance sale consideration and execute/register the sale deed in favour of the respondent. Additionally, the respondent sought to permanently injunct the appellant from alienating the property in favour of any third party. Alternatively, recovery of damages of Rs 2 lakhs with pendent lite and future interest @ 18% per annum was sought by the respondent.”

Illustrating further, it is then observed in para 6 that, “The appellant was served on 01.05.2017, and he appeared through counsel on 15.05.2017 wherein the Civil Court granted the appellant 30 days to file his written statement. On 17.07.2017, noting that no written statement had been filed till then, the Court granted the appellant a final opportunity of two weeks to file his written statement. On 18.09.2017, the Court observed that despite the last opportunity having been accorded more than two months ago, no written statement had been filed. Nevertheless, the Court granted another final opportunity, subject to payment of Rs 3,000 costs and the matter was posted for 11.10.2017. On this date, appellant sought multiple pass overs but his Counsel did not appear before the Court. After noticing that despite several opportunities (including one beyond the maximum period of 90 days) the appellant had failed to file any written statement or deposit costs and that the matter could not be adjourned repeatedly, the Civil Court thus closed the appellant’s opportunity of filing written statement and struck off his defence. Even on the next hearing on 03.11.2017, the appellant’s Counsel did not appear or supply a copy of the written statement to the respondent, as noted in the Trial Court’s daily order.”

What’s more, it is then pointed out in para 7 that, “The aggrieved appellant approached the High Court in revision, which noted how he had been granted repeated opportunities and yet the written statement was not filed within 120 days of notice. Relying upon the order of its co-ordinate bench in Oku Tech Pvt Ltd v. Sangeet Agarwal and Others 2016 SCC OnLine Del 6601 wherein it was held that there was no discretion with courts to extend the time for filing the written statement beyond 120 days after service of summons, the Delhi High Court summarily dismissed the petition.”

Needless to say, it is then enshrined in para 13 that, “The judgment of Oku Tech (supra) relied upon the learned Single Judge is no doubt good law, as recently upheld by this Court in SCG Contracts India Pvt Ltd. v. KS Chamankar Infrastructure Pvt. Ltd., AIR 2019 SC 2691 but its ratio concerning the mandatory nature of the timeline prescribed for filing of written statement and the lack of discretion with Courts to condone any delay is applicable only to commercial disputes, as the judgment was undoubtedly rendered in the context of a commercial dispute qua the amended Order VIII Rule 1 CPC.”

Furthermore, it is then noted in para 14 that, “As regard the timeline for filing of written statement in a non commercial dispute, the observations of this Court in a catena of decisions, most recently in Atcom Technologies Ltd. v. Y.A. Chunawala and Co., (2018) 6 SCC 639, holds the field. Unamended Order VIII Rule 1, CPC continues to be directory and does not do away with the inherent discretion of Courts to condone certain delays.”

To put things in perspective, it is then stipulated in para 15 that, “Let us, therefore, consider whether the appellant has made out a case of exercising such discretionary jurisdiction? The present civil suit had been filed by the respondent for a decree of specific performance of an agreement to sell one floor of an ancestral property located in Devli village, Delhi and permanent injunction against alienation of the same by petitioner to third parties. Counsel for respondent has not contested the non-commercial nature of the dispute, and even independently we are satisfied that the dispute does not fall within the parameters specified under Section 2(c) of the Commercial Courts Act, 2015 and in particular sub-clause (vii), as the immovable property here is not of a nature which is “used exclusively in trade or commerce”. Hence, the appellant is correct in contending that the High Court overlooked the nature of the dispute and mistakenly applied the ratio of a case rendered in light of a modified version of the Code of Civil Procedure, which would only be applicable to commercial disputes.”

As it turned out, para 16 then minces no words to say: “However, it would be gainsaid that although the unamended Order VIII Rule 1 of CPC is directory, it cannot be interpreted to bestow a free hand to on any litigant or lawyer to file written statement at their own sweet-will and/or to prolong the lis. The legislative objective behind prescription of timelines under the CPC must be given due weightage so that the disputes are resolved in a time-bound manner. Inherent discretion of Courts, like the ability to condone delays under Order VIII Rule 1 is a fairly defined concept and its contours have been shaped through judicial decisions over the ages. Illustratively, extreme hardship or delays occurring due to factors beyond control of parties despite proactive diligence, may be just and equitable instances for condonation of delay.”

While launching a scathing attack on the appellant’s nonchalant approach, the Bench then minces no words to hold in para 17 that, “However, it is clear from the facts on record that numerous opportunities had been accorded to the appellant. He was served on 01.05.2017 and entered appearance through counsel on 15.05.2017. As per Order VIII Rule 1 of CPC, the appellant ideally sought to have filed his written statement by 31.05.2017; and at the very latest by 30.07.2017. In addition to two separate deadlines for filing of the written statement within the 90-day timeframe prescribed by the ‘original’ Order VIII Rule 1, the Civil Court even post expiry of the 90-day period again gave one last and final opportunity on 18.09.2017 subject to payment of costs of Rs 3,000. None of these deadlines were complied with. Even on 11.10.2017, when the Court finally closed the appellant’s ability to file the written statement and struck-off his defence from the record, no attempt was made to comply with the process of law.”

Not stopping here, it is then further pointed out in para 18 that, “It was only on 02.11.2017, after a delay of 95 days post the maximum extendable period under the Proviso of Order VIII Rule 1, CPC that the appellant claimed to have filed his written statement. Curiously however, even by the next hearing on 03.11.2017, the appellant had failed to provide a copy of the written statement to the respondent as had been noted by the Civil Court.”

Most significantly, it is then made amply clear by the Bench in para 19 that, “The only defence taken to these repeated and blatant lapses is that the appellant’s counsel was not turning up. No attempt has been made to even proffer a reasoned justification or explanation, and it is clear that appellant is seeking condonation in a casual manner. This ought not to be permitted or encouraged. Courts must act stringently to ensure that all proceedings are decided within reasonable time, and it is but the duty of the judicial system to cultivate a culture of respecting deadlines and time of the Court, its officers as well as of adversaries.”

No less significant is what is then pointed out in para 20 that, “Routine condonations and cavalier attitudes towards the process of law affects the administration of justice. It affects docket management of Courts and causes avoidable delays, cost escalations and chaos. The effect of this is borne not only by the litigants, but also commerce in the country and the public-in-general who spend decades mired in technical process.”

Of course, it is then rightly held in para 21 that, “It is obvious from the record that nothing prevented the appellant from filing the written statement through counsel or in person. He has, thus, failed to give any cogent reason for the delay and is unable to satisfy due diligence on his part though he is right in his submission that the High Court erroneously relied upon the ratio of Oku Tech (supra).”

Finally, while rendering a balanced decision, it is then held in para 22 that, “Having held so, there could be no escape but to dismiss this appeal. However, taking a lenient view given the unique circumstances of the case, and without laying down the discretion being exercised hereinafter, as a precedent, we direct that  the written statement filed by the appellant on 02.11.2017 (as claimed), be taken on record with a copy to counsel for the respondent within one week from today and further subject to payment of costs of Rs 25,000/- to the respondent.” Also, in the last para 23, it is then held that, “The orders of the courts below are thus set aside and the appeal is disposed of in the above terms.”

On the whole, it is a very well balanced and fair judgment where no room for doubt has been left on any score. The 3 Judge Bench of Apex Court comprising of CJI Sharad B Bobde, Justice BR Gavai and Justice Surya Kant have in this notable judgment left no stone unturned to make it pretty clear that the mandatory time-line for filing written statement is not applicable to non-commercial suits. It has held that as regards non-commercial suits, the time-line for written statement is directory and not mandatory. Very rightly so!

Sanjeev Sirohi

Supreme Court Issues Slew Of Directions To Curb Air Pollution In Delhi.

Who is not aware of the exceedingly high level of air pollution in Delhi which has attracted a huge media attention even in international fora? Who is not aware that Delhi which is our national capital is sitting on the keg of a huge environmental explosion as the air pollution is mounting very rapidly as we have even seen for ourselves? Who is not aware that this is a matter of utmost concern for each and every Indian?

It is most heartening to note that just recently on January 13, 2020, we saw how none other than the Apex Court itself in MC Mehta Vs Union of India in WP (C) No. 13029/1985 very clearly and convincingly passed a slew of commendable directions to address the menacing problem of air pollution which has reached its zenith now! There is no reason why these commendable directions are not implemented earnestly. Let us discuss them one by one.

It would be instructive to mention here right at the outset that Justice Arun Mishra pronounced the reportable order of the Bench for himself and Justice Deepak Gupta. It needs to be carefully analysed, evaluated and deliberated upon. It says clearly and convincingly that, “The operative portion of the order delivered by the Bench is reproduced hereunder:-


In view of aforesaid, we inter alia reiterate and/or issue following directions:

(i)                         The decision taken by the High Level Committee constituted by this Court be placed on record along with comprehensive action plan and the action taken thereon so far.

(ii)                      With respect to preventing stubble burning, let a comprehensive plan be prepared and be placed before this court including the action taken. Let Crop Residuary Management be prepared, its use inter alia as fertilizer, cattle food and bio fuel be also worked out. Let the final decision be taken with respect to incentive and disincentive of Rs. 100/- per quintal and the in-situ farming.

(iii) Let the Central Government, State Governments of Punjab, Haryana and U.P. prepare a scheme for making available Combine Harvesters, Happy Seeders, Hydraulically Reversible MB Plough, Paddy Straw Chopper, Mulcher, Rotary Slasher, Zero Till Seed Drill and Rotavators and balers especially dedicated to small and marginal farmers to be made available either free of charge or on nominal rental basis.

(iv) Let the Government of NCT of Delhi/NCR Region and concerned Governments of Haryana and U.P. file reports with respect to various identified hotspots and steps taken for their management and to clear the environmental hazards created by such hotspots.

(v)(a) As proposed in the reply of the Delhi Government, let the Smog Tower at Connaught Place be completed by Delhi Government as proposed in their reply affidavit. Let the Smog Tower be completed within three months.

(b) Let Smog Tower be installed at Anand Vihar as pointed out by Central Pollution Control Board (CBCB). Let Delhi Government provide space of 30 x 30 meters for installation of an experimental tower at Anand Vihar within seven days. The project to be funded by the Union Government, however, Ministry of Environment, Forest and Climate Change is directed to monitor the project. Let project be completed within three months.

(vi) Let anti-smog guns be used in Delhi and NCR region for the following:

(a) Large construction sites;

(b)      Road construction stretches, particularly during earthwork and compacting;

(c)  Mining activities;

(d)      Large parking sites on unpaved areas and during large public gatherings;

(e)Demolition activites;

(f)    Sprinkling on dust prone traffic corridors.

(g) It be made compulsory to make use of anti-smog guns in Delhi-NCR in the projects that require environmental clearance from the State/Central level on site having built-up area of more than 20,000 sq. mts. including excavation, material handling and other dust generating activities. Let an appropriate policy decision be also taken with respect to cost of installation, duly considering the principle “polluters pay” evolved by this Court.

(vii) The Governments of NCT of Delhi, U.P., Haryana and Rajasthan, are directed to identify the dumped waste of plastic, industrial and other wastes and to ensure that waste is not burnt and is used for processing/incineration and piled up waste is removed on time-bound basis without fail and report be filed within six weeks.

(viii) We direct the Pollution Control Boards of Delhi, Haryana, Rajasthan and U.P. to monitor the industrial areas especially at night also and to take stringent action with respect to the industries emitting black smoke from chimneys and it be ensured that the industries comply with the norms and standards for PM/NOx/Sox.

(ix) For construction and demolition, we direct the Governments of NCT of Delhi, Rajasthan, Haryana and U.P. to file a status report regarding compliance with the Construction and Demolition Waste Management Rules, 2016. Let penal action be taken against the developers found flouting the norms.

(x) We direct the Governments of NCT of Delhi, Haryana, Rajasthan and U.P. to file status report on the penalty imposed and the action taken on the developers for violating the norms regarding construction/demolition activity and whether any developer has been blacklisted. Let various local bodies and Government of NCT of Delhi and Governments of Haryana, Rajasthan and U.P. also file status reports in this regard.

(xi) With respect to road construction, there has to be sprinkling of water. Let the Government of NCT of Delhi and Governments of Haryana, Rajasthan and U.P. file a status report with respect to compliance of road construction norms and details of non-compliant portion.

(xii) Let the Government of NCT of Delhi and Governments of Haryana, Rajasthan and U.P. point out the existing facilities of recycling of construction and demolition waste and the deficit of facilities in this regard.

(xiii) With respect to waste burning, compliance of Solid Waste Management Rules, 2016 be ensured by the Government of NCT of Delhi and Governments of Haryana, Rajasthan and U.P. Let a comprehensive plan for waste management be prepared and existing facilities and overall requirement be also worked out.

(xiv)(a). In the reports filed by the Chairman, EPCA indicating the details of his visit to New Friends Colony- Jhilmil Industrial Area, Saboli and Mandoli village –Mandoli Industrial Area, Bhopura Border, Subzi Mandi Sahibabad, Hindon Vihar, Ghaziabad and Sahibabad Industrial Area certain problems have been pointed out and several observations have been made. We direct the concerned authorities of the area, District Magistrate, Ghaziabad, to ensure that all remedial measures are taken by the concerned bodies and report be submitted as to remedial work taken with respect to each and every observation which has been made in the report submitted by the Chairman, EPCA within one month.

(b). With respect to Panipat, the Inspection Report contains (1) Urban Extension Road, (2) Narela Industrial Area, (3) Panipat Industrial Area. Let the Deputy Commissioner ensure that appropriate measures are taken with respect to observations made in the aforesaid orders within one month.

(c) With respect to the visit to Meerut on October 12, 2019, various aspects have been pointed out. Let the District Magistrate, Meerut, National Highways Authority of India (NHAI), concerned Pollution Control Board, Municipal Commissioner, Meerut Nagar Nigam and Meerut Development Authority to take appropriate measures within one month.

(d) With respect to Mundka Tikri from the visit dated October 13, 2019, various observations have been made and problems have been pointed out which are required to be attended by the concerned authorities. We direct the concerned authorities of the areas, District Magistrates, Pollution Control Boards, Deputy Commissioners of Municipal Corporations, to take the remedial measures and report pointwise compliance on each and every aspect of Report No. 16 of EPCA Chairman within one month.

(e) With respect to EPCA Chairman visit at Bahadurgarh, the Haryana State Pollution Control Board (HSPCB), City Magistrate, Bahadurgarh, District Magistrate, Bahadurgarh and all concerned officials are directed to take remedial measures and compliance be reported to this Court within one month.

(f) In respect of the field visit of EPCA Chairman to Bhiwadi and other regions of Rajasthan, let the Government, RIICO, District Magistrate, Bhiwadi consider the recommendations made in the report and report the compliance to this Court within one month.

(g) Let the extracts of the reports with respect to aforesaid areas be forwarded to the concerned authorities by the EPCA for prompt compliance.

(xv) With regard to oxy furnace in glass industries, let the DST Technical Committee consider the proposal for installation of oxy furnace in glass industries in Delhi and NCR. Let the consideration be made within two weeks in consultation with the sectoral expert and other concerned stakeholders. Relating costs and modalities be worked out.

(xvi) Let the details be worked out for chemical test methods for smoke emission control in various industrial sectors for meeting prescribed emission norms and entire details be furnished as to their use.

(xvii) Let proper research and development be made in wireless sensors network technology. Let the concerned officials consider further LiDAR (a laser based method) and Spectroscopic monitoring techniques as considered appropriate by them. Let the use of spectroscopy to monitor ambient air quality be considered by various States.

(xviii) Let the Government of NCT of Delhi work out the details with respect to 45% deficit capacity to lift the garbage and waste as there is only 55% capacity available with respect to garbage and waste generated in Delhi. Let it work out a comprehensive plan within three months to have full (100%) capacity to deal with garbage and wastes and place it before this Court, including the implements, tools, manpower and the expenditure required in that connection.

(xix) Let the action taken be reported with respect to the vehicles found plying on kerosene, checks undertaken and action taken report be placed before this Court within a month by the concerned Pollution Control Boards.

(xx) With respect to water quality supplied in Delhi, let the concerned Pollution Control Boards as well as the Indian Bureau of Standards, submit a report of random checking of various samples in Delhi and submit a report in this regard within one month.

(xxi) We direct the various State Governments through Chief Secretaries to inform this Court about the measures taken by them with respect to pouring of sewage and untreated industrial effluents in various rivers and the plan prepared by them and arrangement of funds made by them for the purpose of sewage treatment plants and existing facilities and requirements be pointed out within eight weeks.

(xxii) Let the Government of NCT of Delhi and Governments of Punjab, Haryana and U.P. show cause why they should not be saddled with the compensation for failure of their machinery and the concerned authorities in taking appropriate steps to prevent stubble burning and other pollution being caused.

(xxiii) With respect to solving traffic congestion, let the Government of NCT of Delhi and Governments of Haryana, Rajasthan and U.P. work out a plan so as to solve the problem of traffic congestion and compliance of the orders passed earlier by this Court with respect to solving the problem of traffic congestion.

(xxiv) Let the concerned Municipal Corporations of Delhi, Government of NCT of Delhi, concerned bodies and Governments of Haryana, Rajasthan and U.P. to take care of potholes and file reports of action taken within three weeks and compliance report with respect to their previous directions be also filed and in case any work is left, let it be completed within three weeks.

Ordered accordingly.”

No doubt, there is an undeclared environment emergency in our country especially in Delhi and adjoining regions. We need to approach it with full seriousness. No wonder that Supreme Court which is the top court too has taken it with full seriousness and to check this Frankenstein monster has issued a slew of directions to check the protracted and ugly problem of air pollution especially in Delhi and adjoining regions. They must be implemented in totality at the earliest!

Sanjeev Sirohi

Investigation In IPC Offences Cannot Be Quashed For Non Investigation Of SC-ST Offences By Competent Police Officer: Supreme Court

It is worth noting that the Supreme Court most recently on January 17, 2020 in State of Madhya Pradesh Vs Babbu Rathore & Anr. In Criminal Appeal No(S). 123 of 2020 (Arising out of SLP (Crl.) No(S). 11369 of 2019) has clearly and convincingly observed that when the offence complained are both under the Indian Penal Code and Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, the investigation which is being made by a competent police officer in accordance with the provisions of the Code cannot be quashed for non-investigation of the offence under Section 3 of the Act by a competent police officer. The Apex Court Bench was in concurrence with the High Court’s observation to the extent that an officer below that rank cannot act as investigating officer in holding investigation in reference to the offences committed under any provisions of the SC and ST Act. Very rightly so!

To start with, this notable judgment authored by Justice Ajay Rastogi for himself and Justice Indu Malhotra sets the ball rolling by first and foremost observing in para 2 after granting leave in para 1 that, “This appeal is directed against the judgment of the High Court of Madhya Pradesh dated 9th May, 2019 confirming Order of the trial Judge dated 24th July, 2015 whereby the respondents have been discharged from the offences under Sections 302/34, 404/34 of the IPC and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter being referred to as “Act, 1989”) at the advanced stage of the trial when almost all the material witnesses have been examined by the prosecution which has given rise to this appeal.”

To recapitulate, para 3 then discloses that, “The background facts in nutshell are that deceased Baisakhu, in a drunken state met Kamla Prajapati on road to ward no. 10, Pasia, Thana Anuppur, Anuppur, Madhya Pradesh. Kamla Prajapati took him to his house, but the deceased Baisakhu stated that he had to return two hundred fifty rupees to Nasru and requested him to take to his place. Upon insistence of deceased Baisakhu, Kamla Prajapati took him to the house of Nasru where accused Babbu Rathore was drinking liquor. Baisakhu stated that he wanted to have liquor so leaving him there, Kamla Prajapati returned back. When Ujaria Bai, the wife of deceased, went to house of Nasru to inquire about her husband, then Nasru told her that deceased Baisakhu had left with Babbu Rathore. The dead body of Baisakhu was recovered on 14th July, 2011. Information of unnatural death was recorded by police and post-mortem on the body of the deceased was conducted which proved death was unnatural and caused by asphyxia due to strangulation.”

Be it noted, para 4 then states that, “The preliminary investigation confirmed that the deceased was last seen with the present respondents. After registration of FIR, investigation was conducted by the Sub-Inspector and charge-sheet came to be filed against the present respondents for offences punishable under Section 302/34, 404/34 of the IPC and Section 3(2)(v) of the Act, 1989. The trial Court took cognizance of the matter and Special Case No. 37/11 was registered.”

To put things in perspective, para 5 then enunciates that, “During proceedings in Special Case No. 37/11, statement of the material witnesses PW2 Narsu, PW4 Kamla Prajapati and PW5 Uparia Bai, wife of deceased Baisakhu were recorded. It appears from the record that at the advanced stage of the trial, a grievance was raised by the respondents that they had been charged under Section 3(2)(v) of the Act, 1989 and since the investigation has been conducted by an Officer below the rank of Deputy Superintendent of Police which is the mandate of law as provided under Section 9 of the Act, 1989 read with Rule 7 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (hereinafter being referred to as the “Rules, 1995”), the very investigation is faulty and illegal and that deserves to be quashed and set aside and in consequence thereof, further proceedings in trial does not hold good and respondents deserve to be discharged.”

As it turned out, para 6 then points out that, “Learned trial Court, while taking note of Section 9 of the Act, 1989 and Rule 7 of the Rules, 1995 held that the investigation has been conducted by an Officer below the rank of Deputy Superintendent of Police and is without authority and illegal and in consequence thereof, discharged the respondents not from the charges levelled against them under the provisions of the Act, 1989 but also from the provisions of the IPC for which there was no requirement of the investigation to be conducted by an Officer not below the rank of Deputy Superintendent of Police under judgment dated 24th July, 2015 which came to be challenged before the High Court of Madhya Pradesh and dismissed by a cryptic order dated 9th May, 2019.”

More crucially, it is then observed in para 10 that, “By virtue of its enabling power, it is the duty and responsibility of the State Government to issue notification conferring power of investigation of cases by notified police officer not below the rank of Deputy Superintendent of Police. Rule 7 of the Rules 1995 provides rank of investigation officer to be not below the rank of Deputy Superintendent of Police. An officer below that rank cannot act as investigating officer in holding investigation in reference to the offences committed under any provisions of the Act, 1989 but the question arose for consideration is that apart from the offences committed under the Act 1989, if the offence complained are both under the IPC and the offence enumerated in Section 3 of the Act, 1989 and the investigation being made by a competent police officer in accordance with the provisions of the Code of Criminal Procedure (hereinafter being referred to as the “Code”), the offences under IPC can be quashed and set aside for non-investigation of the offence under Section 3 of the Act, 1989 by a competent police officer. This question has been examined by a two-Judge Bench of this Court in State of M.P. Vs. Chunnilal @ Chunni Singh 2009 (12) SCC 649. Relevant para is as under:-

“By virtue of its enabling power it is the duty and responsibility of the State Government to issue a notification conferring power of investigation of cases by notified police officer not below the rank of Deputy Superintendent of Police for different areas in the police districts. Rule 7 of the Rules provided rank of investigating officer to be not below the rank of Deputy Superintendent of Police. An officer below that rank cannot act as investigating officer.

The provisions in Section 9 of the Act, Rule 7 of the Rules and Section 4 of the Code when jointly read lead to an irresistible conclusion that the investigation of an offence under Section 3 of the Act by an officer not appointed in terms of Rule 7 is illegal and invalid. But when the offence complained are both under IPC and any of the offence enumerated in Section 3 of the Act the investigation which is being made by a competent police officer in accordance with the provisions of the Code cannot be quashed for non-investigation of the offence under Section 3 of the Act by a competent police officer. In such a situation the proceedings shall proceed in an appropriate court for the offences punishable under IPC notwithstanding investigation and the charge-sheet being not liable to be accepted only in respect of offence under Section 3 of the Act for taking cognizance of that offence.”

(emphasis supplied)

Most crucially, it is then held without mincing any words in para 11 that, “Undisputedly, in the instant case, the respondents were charged under Sections 302/34, 404/34 IPC apart from Section 3(2)(v) of the Act, 1989 and the charges under IPC have been framed after investigation by a competent police officer under the Code, in such a situation, in our view, the High Court has committed an apparent error in quashing the proceedings and discharging the respondents from the offences committed under the provisions of IPC where the investigation has been made by a competent police officer under the provisions of the Code. In such a situation, the charge-sheet deserves to proceed in an appropriate competent Court of jurisdiction for the offence punishable under the IPC, notwithstanding the fact that the charge-sheet could not have proceeded confined to the offence under Section 3 of the Act, 1989.”

To state the obvious, what follows next is stated in para 12 that, “The order impugned is accordingly restricted to the offence under Section 3 of the Act, 1989 and not in respect of offences punishable under the IPC. The Special Case No. 37/11 is restored on the file of the Special Court, District Anuppur (MP) and the trial Court may proceed further and conclude the trial expeditiously in respect of offences punishable under the IPC in accordance with law.”

To conclude, it is a very well reasoned and well concluded apt decision. It has very rightly held that investigation in IPC offences cannot be quashed for non-investigation of SC-ST offences by competent police officer. There can be no denying or disputing it!

Sanjeev Sirohi

SC Settles Disputes Between National And State Child Rights Commissions Over Powers To Conduct Inquiry

The gravity of seriousness of the situation which arises when two Commissions – National Child Rights Commission and State Child Rights Commissions start squabbling amongst themselves over powers to conduct inquiry can be gauged from this that when the Apex Court was called to decide on it in this latest case titled National Commission For Protection of Child Rights & Ors Vs. Dr Rajesh Kumar & Ors in Civil Appeal No. 7968 of 2019 (@Special Leave Petition (Civil) No. 34251 of 2017), it pulled back no punches in lamenting on this ugly fight right from the start of this judgment! This ego clash between two Commissions should not have taken place but they did! The Apex Court has dealt on this in detail in a damning indictment and arrived at the right decision which we will deal later on!

To start with, this notable judgment authored by Justice Deepak Gupta for himself and Justice Aniruddha Bose and delivered on January 13, 2020 sets the ball rolling in para 1 wherein it is observed that, “It’s so sad! We start with a lament because institutions set up to protect children have virtually forsaken them in a fight over their so called jurisdictions.” What more should the Apex Court write right at the outset to express its strongest displeasure on the way in which this ugly squabble broke out between the two top institutions meant to raise their voice in favour of children? The Apex Court has every reason to feel so strongly on this!

Needless to say, it is then pointed out in para 2 that, “India is a signatory to the United Nations Convention on the Rights of the Child, 1989 which makes it obligatory upon the signatory States to take all necessary steps to protect the rights of the children as set out in the Convention. The Government of India enacted the Juvenile Justice (Care and Protection of Children) Act, 2000. This was repealed by the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as ‘the JJ Act’).”

To be sure, para 3 then states that, “It was felt expedient to enact a law constituting special commissions to protect the rights of children. Parliament enacted the Commissions for Protection of Child Rights Act, 2005 (hereinafter referred to as ‘the CPCR Act’). The CPCR Act envisages the constitution of a National Commission for Protection of Child Rights (hereinafter referred to as ‘NCPCR/National Commission’) under Section 3 and the State Commissions for Protection of Child Rights (hereinafter referred to as ‘State Commissions’) under Section 17. We shall deal with their respective functions and powers at a later stage but there can be no manner of doubt that these two Commissions – one at the National Level and the other at the State level – are expected to function in a spirit of cooperation. We expect such Commissions to consult, discuss and cooperate with each other while exercising their powers and fulfilling the powers and fulfilling the duties enjoined upon them by the CPCR Act. These two institutions are in the nature of siblings. The goal which they both set out to achieve is the same, viz., protecting children from all sorts of abuse, exploitation etc. We see no reason why there should be any disharmony and lack of coordination between these two institutions. This non-cooperation and lack of coordination can only occur when the persons manning the institutions put their own interests over the interest of the children. It is only when those in-charge of such commissions give themselves so much importance that they forget that they are the creation of statute, the only purpose of which is to protect children.”

While continuing in the same vein and pooh-poohing the internecine squabble between the Commissions, para 4 then goes on to state that, “This case is a classic example where in the fight between the State Commission and the National Commission the children have been, all but forgotten. We are sorry that this Court has to spend its time resolving such disputes. This Court as well as the two major parties litigating before us definitely have better things to do.”

To recapitulate, para 5 then goes on to reveal that, “From the material on record, it appears that news reports were published some time in February, 2017 indicating that a child-care institution based in Jalpaiguri in West Bengal had indulged in large scale trafficking of children. The NCPCR took cognizance of these reports on 03.03.2017 and two members of the NCPCR went to Jalpaiguri on 07.03.2017. They requested the State officials to provide them some information which, according to the NCPCR, was not provided. They finally summoned the Additional Director General of Police (ADGP), Criminal Investigation Department (CID), West Bengal (Respondent no. 1 herein) to appear before the NCPCR. This gentleman, instead of appearing before the NCPCR, chose to file a writ petition challenging the jurisdiction of the NCPCR to summon him. The High Court, by the impugned order dated 29.08.2017, stayed the direction of the NCPCR mainly on the ground that since the State Commission had taken cognizance of the matter on 24.02.2017, the NCPCR had prima facie no jurisdiction.”

Going to the root of the matter, para 16 then states that, “In the present case, the dispute is who started inquiry first – whether it was the WBCPCR or the National Commission. As far as the National Commission is concerned, there is no dispute that it started its inquiry on 07.03.2017 when its members visited Jalpaiguri to inquire into the matter. The stand of the National Commission is that they were, for the first time, informed on 24.07.2017 that the State Commission has taken cognizance and is inquiring into the matter even though they had written various letters to the various officials including the District Magistrate and the police officials in this regard. From the list of dates filed by the WBCPCR, it appears that on 12.07.2016 the Director, Child Rights and Trafficking, West Bengal (for short ‘the Director, CRT’) wrote to the District Magistrate, Jalpaiguri seeking a report on the illegal child trafficking there. An inquiry team was formed by the District Magistrate, Jalpaiguri on 0912.2016 and a report was sent to the Director, CRT on 11.01.2017. Thereafter, the Director, CRT passed an order that the Specialised Adoption Agency (for short ‘the SAA’), Jalpaiguri is not functioning as  per the provisions of Adoption Guidelines, 2015 and the JJ Act and 15 children from the SAA Jalpaiguri, run by the North Bengal People’s Development Centre (for short ‘the NBPDC’) were transferred to other institutions. On 17.01.2017, the Central Adoption Resource Authority (for short ‘the CARA’) filed a complaint with the CID, West Bengal. On 22.01.2017, a report appeared in local newspaper about this child trafficking racket. On 15.02.2017, a team was constituted by the CID, West Bengal to investigate the complaint made by the CARA. On 16.02.2017, a team of CID, West Bengal went to Jalpaiguri. On 17.02.2017, a letter was allegedly sent by the Chairperson of  the WBCPCR to the District Magistrate, Jalpaiguri informing that the State Commission had taken cognizance of the report published in the daily newspaper on 22.01.2017. On 19.02.2017, a formal First Information Report (FIR) was registered in the matter. The report dated 11.01.2017, referred to above, was  sent to the WBCPCR on 24.02.2017. Thereafter, news item again appeared on 26.02.2017 and two women officials of the concerned adoption centre were arrested. Admittedly, NCPCR took note of this instance on 03.03.2017 and on 07.03.2017 two members of the NCPCR visited Jalpaiguri to conduct an inquiry.”

While rapping the WBCPCR on its knuckles, the Bench of Apex Court then in para 17 minces no words to hold that, “We had requested learned counsel appearing for the WBCPCR to provide the file of WBCPCR in relation to this matter, which was provided. After going through the file, all that we can say is that the file is not maintained like an official file. The papers were kept casually. Except for the noting sheet, the other papers were not tagged. The other papers were also not paginated. In such a file, there can be additions and alterations at any stage. We, therefore, cannot place too much reliance on such a poorly maintained file and direct the WBCPCR to ensure that in future, files, especially of complaints, are maintained in a proper manner. According to the documents which form a part of this file, the WBCPCR took suo motu cognizance of the incident on 30.01.2017 on the basis of the newspapers report dated 22.01.2017. It was stated in the noting sheet that the matter be put up for appropriate action. Though this note is dated 30.01.2017 and was put up to the Chairperson, WBCPCR, it appears that the Chairperson wrote that she should be reminded after 10 days for follow up action. The file was again put up before the Chairperson on 13.02.2017. On 14.02.2017 it was ordered that the District Magistrate/District Children Protection Officer (DCPO) may be asked to submit a report. A draft letter was put up which was approved on 16.02.2017 and dispatched on 17.02.2017. The DCPO, Jalpaiguri sent the report through mail dated 24.02.2017. The matter was again placed before the Chairperson, who directed that the report be kept for records. The next noting on the file is of 15.03.2017. This note of 15.03.2017 has been put up with regard to the visit of the Chairperson and Secretary to Jalpaiguri on 10.03.2017 and 11.03.2017 to assist and monitor the situation after the recent cases of child trafficking. Though, the visit is dated 10.03.2017 and 11.03.2017, the note is put up on 15.03.2017 and approved on the same date. We are unable to understand why the note for the visit was not put up prior to the visit. We have perused the report prepared by the Chairperson of the WBCPCR and find that the report is more in the nature of allegations against the members of the NCPCR. The report virtually does not deal with the issue relating to trafficking of the children. We shall deal with this report at a later stage.”

While continuing in the same vein, it is then pointed out in para 18 that, “Even if we accept the record of the WBCPCR to be the gospel truth then also other than using the word ‘takes suo motu cognizance’ on 30.01.2017, the WBCPCR had taken no steps to inquire into the matter, which is the mandate of Section 13(1)(j) of the CPCR Act, till the visit of its Chairperson on 10.03.2017 and 11.03.2017. We make it clear that in every case a personal visit is not required but the manner in which this case has been dealt with leaves much to be desired. We see no reason why, if cognizance was taken on 30.01.2017, it was directed that the matter be placed for reminding the Chairperson to take follow up action after 10 days. These sort of matters brook no delay. Even after the matter was put up, no attempts were made to hold an inquiry. All that was done was to order the District Magistrate/DCPO to submit a report. That report was filed on 24.02.2017 and it was ordered that the report be kept on record. It appears that it is only after the visit of the members of the NCPCR that the WBCPCR actually felt it necessary to itself visit Jalpaiguri and take stock of the situation.” How can all this be overlooked?

Moreover, it is then pointed out in para 19 that, “As pointed above, as far as NCPCR is concerned, on 03.03.2017 a communication was sent by the NCPCR to the District Magistrate, Jalpaiguri wherein he was asked to give specific information with regard to the home in question. Thereafter, on 07.03.2017 two members of the NCPCR visited Jalpaiguri and even if the inquiry did not start on 03.03.2017, it definitely started on 07.03.2017. It found various deficiencies especially with regard to non-constitution of Child Welfare Committee (CWC) in New Jalpaiguri District from 23.08.2013-28.08.2015. It also found that ad hoc CWC was functioning which is against the provisions of law. Therefore, the NCPCR sent a letter on 16.03.2017 to the District Magistrate, Jalpaiguri seeking status of registration of homes, status of CWCs etc. On 23.03.2017, the NCPCR sent another letter to the District Magistrate specifically asking whether the WBCPCR had commenced an inquiry into the matter before the visit of the members of the NCPCR or after the initiation of the inquiry by the NCPCR. To this, no reply was given by the District Magistrate. Then, the NCPCR summoned the District Magistrate, Jalpaiguri on 12.04.2017 for personal appearance on 25.04.2017. The District Magistrate did not appear but send some information vide communication dated 21.04.2017. However, in this communication also there is no reply to the specific query as to whether the WBCPCR had initiated an inquiry into the matter. The NCPCR also took no steps for almost two months. On 20.06.2017 the NCPCR sought the following information from the ADGP, CID, West Bengal (respondent no. 1):-

“1. In this case, sale of as many as about 17 children has been mentioned in this case, in which children were sold both in the country and abroad. Since this organization has come in existence, how many children have been adopted through this organization, provide list of those to the Commission.

2. In this case, children were given to Non-Resident Indian and foreign couples both, hence this case seems to be case of international trafficking. Record concerning as to how many children have been given to Non-resident and foreign coupes be made available to the Commission.

3. According to newspaper, forged papers and papers of National Adoption Authority have been used in this crime in forged manner. Copies of papers seized by CID, statement & list/copies of evidence be made available to the Commission.

4. List of all the detained/arrested people in this case, copy of First Information Report, copies of all the investigation reports be provided to the Commission. Copy of the statement of detained people.

5. From the year 2013 to 2015 Child Welfare Committees had not been constituted in District Jalpaiguri in place thereof, Ad hoc Committee had been working. The following-mentioned papers/documents relating to this Committee be made available to the Commission:-

i. Copy of order for constituting ad hoc committee.

ii. People included in the ad hoc committee, list of those with their names, posts/designations be made available to the Commission.

iii. Minutes of the meetings convened by ad hoc Committee during its tenure.

iv. Decisions about how many children were taken by Ad Hoc Committee, copies of all the case files concerning with all those.

If any charge sheet has been filed in court, then copy thereof.””

What’s more, it is then added in para 20 that, “On the same day i.e. 20.06.2017, the District Magistrate, Jaslpaiguri, was also directed by the NCPCR to give information pertaining to the constitution of ad hoc committee and members of the ad hoc committee. That very day another communication was sent by the NCPCR to the Department of Women & Child Development, West Bengal, to initiate an inquiry into the matter and inform the NCPCR about the report of the Government. According to the NCPCR, no response was received from any of the authorities. Thereafter, another reminder was sent on 13.07.2017. Left with no option, on 20.07.2017, summons were issued to the ADGP, CID, West Bengal to appear before the NCPCR in person on 25.07.2017 along with relevant documents. A communication was also sent to the Chief Secretary, West Bengal on 22.07.2017 asking for information. The ADGP, CID, West Bengal by letter/fax on 24.07.2017 informed the NCPCR that since WBCPCR has already proceeded with the matter, the NCPCR should stay its hand in the present matter. Meanwhile on 21.07.2017, a report was sent by the CID, West Bengal supplying some information but most of the information was not sent. Thereafter, the NCPCR issued summons to the ADGP, CID, West Bengal on 14.08.2017 to appear before the NCPCR on 29.08.2017. The ADGP, CID, West Bengal challenged these summons by filing a writ petition in the Calcutta High Court. The Advocate General of the State appeared for Dr. Rajesh Kumar, ADGP, CID, West Bengal. The High Court vide impugned order, prima facie, came to the conclusion that since the WBCPCR had taken cognizance of the matter on 24.02.2017, the NCPCR is denuded of its jurisdiction over the subject. The High Court, accordingly, stayed the summons.”

While pooh-poohing the endless tussle which only served to worsen the matters further, para 21 then envisages that, “We are constrained to observe that in this clash of egos between the State Commission (WBCPCR) and the National Commission (NPCPCR) for this entire period, other than the police taking action, nothing was done on the administrative side to set matters right.”

Of course, it is then acknowledged in para 22 that, “The police have acted, a case has been filed, accused have been arrested and we are told that most of the children have been reunited with their parents. We are purposely not commenting on the criminal aspects of the matter. We refrain from doing so because any comment from us may affect the trial of the accused who are entitled to a fair and free trial. In fact, since criminal proceedings in respect to the illegal adoptions had already started, no inquiry could actually be conducted by either of the two Commissions with respect to the same. However, the National Commission was definitely entitled to inquire as to why proper CWCs had not been constituted and under what orders were ad hoc CWCs functioning. The Commissions can also inquire into the factual aspects which led to the trafficking of the children, though not the actual crime itself. In fact, we are of the view that such inquiries are necessary so that such events do not occur in the future. In case, the CWCs had been properly constituted may be this unfortunate situation would not have arisen.”

While castigating the shoddy manner in which the matters were dealt with, it is then stipulated in para 23 that, “Though we are of the view that an inquiry into the alleged illegal adoption could not be conducted because a criminal case had already been registered, at the same time, we cannot shut our eyes to the manner in which both the State Commission (WBCPCR), the National Commission (NCPCR) and the senior officials of the State CID have dealt with the matter. We have already commented on the lack of alacrity on the part of the WBCPCR which purportedly took cognizance of the matter on 30.01.2017 but no effective steps were taken to inquire into the matter till 10.03.2017 except calling for a report. The members of the NCPCR visited Jalpaiguri on 07.03.2017 and have recorded the statement of CWC members. According to the statements so recorded, one of the accused, who was Secretary of the NBPDC which was running the concerned SAA, prayed for certificates for 20 children to be declared legally fit for adoption whom they placed before Prospective Adoptive Parents (PAPs) without Legally Fit for Adoption (LFA) Certificates from CWC, Jalpaiguri. According to the statements, the members of the CWC were shocked that the legal procedure had not been followed. According to these members, they complained to the various officials but they were compelled to give certificates that the children were legally fit for adoption. In the absence of the parties who have made the statements, we would not like to make any further comment except to state that if any member of a CWC can be compelled or pressurized to give such a certificate then that member has no business of ever being appointed as member of CWC or in any capacity in a child rights institution.”

More significantly, it is then underscored in para 37 that, “As clearly held by us above, both the Commissions have to work for the best interest of the children in a spirit of cooperation. Unfortunately, in this case, there has been no cooperation rather mudslinging at each other. We would like to reiterate and re-emphasise that there are no jurisdictional issues involved.”

Be it noted, it is then held in para 38 that, “In view of the above, we are clearly of the view that Dr. Rajesh Kumar should have furnished the information which appears to now have been furnished by the State authorities. If such information has not been furnished, the present incumbent holding the post of ADGP, CID, West Bengal is directed to furnish the information to the National Commission as well as to Juvenile Justice Committee of the High Court of Calcutta within 15 days from the date of receipt of certified copy of this judgment. The counsel for the State of West Bengal shall inform the present Additional Director General of Police, Criminal Investigation Department, West Bengal of these directions.”

Most significantly, it is then held in para 39 that, “As is evident from the facts narrated above, both the State Commission (WBCPCR) and the National Commission have been woefully lax in the matter. Hence we direct that other than the issues which form part of the criminal case, all other matter relating to the issue in hand and larger issues of appointment of CWCs and heads of CWCs, not only as far as this case is concerned, but also for the entire State of West Bengal, should be monitored by the High Court of Calcutta, preferably by a Bench headed by the Chairperson of the Juvenile Justice Committee of the High Court of Calcutta in a public interest litigation. In furtherance of these directions, we direct the Registry of this Court to send a copy of this judgment to the Registrar General of the Calcutta High Court, who shall place the same before the Hon’ble Chief Justice of the High Court for constitution of an appropriate Bench. We request the Bench so constituted to deal with the matter as per the urgency involved and if required, to establish a fool proof mechanism so that such occurrences do not take place in future.”

On a concluding note, the Bench rightly slammed the clash of egos between the State Commission (WBCPCR) and the National Commission (NCPCR) as also the woefully lax approach of them. No doubt, it also very rightly after examining the records concluded that NCPCR had started inquiry before the State Commission (WBCPCR) got involved in this. It also further passed the right directions as mentioned in para 39! No denying or disputing it!

Sanjeev Sirohi

Courts At Place Where Wife Resides After Leaving Matrimonial Home Can Entertain Complaints U/s 498A IPC: SC

                                  It would be in the fitness of things to mention right at the outset that in a major significant development, the Supreme Court just recently on January 6, 2020 in a latest, landmark and laudable judgment titled Ruhi Vs. Anees Ahmad & Ors in Criminal Appeal No. 7 of 2020 (@ SLP (Criminal) No. 106 of 2017) has once again reiterated that even the Courts at the place where the wife resides after leaving the matrimonial home will have jurisdiction to entertain her complaint under Section 498A of the Indian Penal Code. This is for the wife benefit so that she has to face minimum inconvenience in travelling etc. Very rightly so!

To start with, this noteworthy judgment delivered by a Bench of Justice L Nageswara Rao and Justice Hemant Gupta of the Apex Court sets the ball rolling by first and foremost pointing out after granting leave that, “The complaint preferred by the Appellant to the Senior Superintendent of Police, Ghaziabad on 22.5.2014 had been transferred to the Police Station, Welcome Colony, Delhi. FIR No. 645/2014 was registered by the Police Station Welcome Colony, North East, Delhi under Sections 498A, 406 and 34 IPC and under Section 4 of the Dowry Prohibition Act, 1961. The 1st Respondent approached the High Court by filing an application for quashing FIR No. 645/2014. The High Court refused to quash the FIR. However, the High Court was of the view that the place of occurrence as per the FIR was Meerut and the Appellant did not reside with Respondent No. 1 at Delhi. In that view, the High Court directed the transfer of the FIR from Police Station, Welcome Colony, Delhi to Police Station Lisadi Gate, Meerut, U.P. which was the place of matrimonial home of the Appellant and the Respondent No. 1.”

To be sure, it is then pointed out by the Bench of Apex Court that, “We are informed by Ms. Aishwarya Bhati, learned senior counsel appearing for the State that the charge-sheet has been filed on receipt of the material pertaining to the investigation conducted by the Delhi Police and the further investigation carried on by the police at Meerut, U.P. Learned counsel for the Appellant submits that the case is at the stage of cognizance to be taken by the Magistrate.”

Moving on, it is then further pointed out by the Bench that, “Learned counsel for the Appellant further submits that the Appellant has been living at Kabir Nagar, Delhi and in accordance with the judgment of this Court reported in Rupali Devi versus State of Uttar Pradesh (2019 (5) SCC 384), it is not necessary that a complaint should be filed only at the place of the matrimonial home. Even the Courts at the place where the wife resides after leaving the matrimonial home will have jurisdiction to entertain a complaint under Section 498A of the Indian Penal Code.”

Of course, it is then stated by the Bench that, “Learned counsel appearing for the 1st Respondent submits that the offences, if any, were committed even at Meerut, U.P., which was the place of matrimonial home of the Appellant and Respondent No. 1 or at Ghaziabad which was the place of parental home of the Appellant.”

Most significantly, the Bench then minces no words in stating unequivocally that, “We are unable to accept the submissions of the learned Senior counsel for Respondent No. 1. The point that arises in this case is no more res integra as it is covered by the judgment of this Court in Rupali Devi (supra). It was held by this Court as follows:

“14. …Even if the acts of physical cruelty committed in the matrimonial house may have ceased and such acts do not occur at the parental home, there can be no doubt that the mental trauma and the psychological distress caused by the acts of the husband including verbal exchanges, if any, that had compelled the wife to leave the matrimonial home and take shelter with her parents would continue to persist at her parental home. Mental cruelty borne out of physical cruelty or abusive and humiliating verbal exchanges would continue in the parental home even though there may not be any overt act of physical cruelty at such place.

15. …The provisions contained in Section 498-A of the Penal Code, undoubtedly, encompass both mental as well as the physical well-being of the wife. Even the silence of the wife may have an underlying element of an emotional distress and mental agony. Her sufferings at the parental home though may be directly attributable to commission of acts of cruelty by the husband at the matrimonial home would, undoubtedly, be the consequences of the acts committed at the matrimonial home. Such consequences, by itself, would amount to distinct offences committed at the parental home where she has taken shelter. The adverse effects on the mental health in the parental home though on account of the acts committed in the matrimonial home would, in our considered view, amount to commission of cruelty within the meaning of Section 498-A at the parental home. The consequences of the cruelty committed at the matrimonial home results in repeated offences being committed at the parental home. This is the kind of offences contemplated under Section 179 CrPC which would squarely be applicable to the present case as an answer to the question raised.

16. We, therefore, hold that the courts at the place where the wife takes shelter after leaving or driven away from the matrimonial home on account of acts of cruelty committed by the husband or his relatives, would, dependent on the factual situation, also have jurisdiction to entertain a complaint alleging commission of offences under Section 498-A of the Penal Code.””

In the ultimate analysis, the Bench then rightly goes on to conclude by noting that, “Having considered the submissions made on behalf of the parties, we are of the view that the charge sheet that has been filed at Meerut should be transmitted to a competent court in the Karkardooma Courts, Delhi. The District & Sessions Judge, East District, Karkardooma Courts, Delhi shall assign the case to the concerned Court.”

Finally, it is then held by the Bench that, “In view of the aforesaid, the appeal is allowed. The charge sheet filed pursuant to FIR No. 645/2014, P.S. Lisadi Gate, Meerut, U.P. stands transferred to Karkardooma Courts, Delhi. The prosecution shall be conducted by the Delhi Police.”

From the foregoing discussion, it is thus quite abundantly clear that the Apex Court Bench comprising of Justice Nageswara Rao and Justice Hemant Gupta have by this latest, landmark and extremely laudable decision sought to send a loud and clear message that even the Courts at the place where the wife resides after leaving the matrimonial home will have the jurisdiction to entertain her complaint under Section 498A of the Indian Penal Code. Relevant case laws have already been discussed above in detail. The Apex Court Bench in this notable case has rightly sought to reiterate the time tested position as has already been stated above! There can be no denying or disputing it!

Sanjeev Sirohi

Housing Rights of Lepers:- A Disgruntled Indian Legal Pledge

Dushyant Mainali


     Overture of Poor State of Lepers and Stigma attached.

Since ages, Lepers are the most neglected section of the society as Leprosy is a disease, which still strikes fear in the societies as a mutilating, disfiguring, contagious and incurable disease. Because of the horrifying nature of the enigmatic physical disfigurement and since no cure was discovered until the 20th century, leprosy has, for centuries, been a highly stigmatizing disease. Though leprosy is not a disease of the poor, yet it affects poor to a much greater extent because of their social and economic vulnerability. The stigma attached to leprosy leads to loss of employment even before manual labor becomes more difficult due to disability, which often results from late or no treatment.   It also leads to exclusion from society, causing physical and emotional distress that even to this day in some parts of India uphold the belief that leprosy is a divine curse, a punishment of the past sins, and a result of immoral sexual behavior. These beliefs reinforce the image of the ‘leper’ as being physically and morally unclean, to be blamed for contracting the disease and therefore to be ostracized. The repulsive physical image, the fear of infection and the belief that it is incurable are the root causes of the inhuman treatment that is often meted out to those who have leprosy. Thus already the lepers are facing neglect of the society and authorities despite early British mission efforts in India.

The Lepers who are the most neglected community of the society reside totally as destitute in towns and specially in places of holy pilgrimage of Hindus and by begging and by getting the eatables given by the pilgrims at charity they anyhow lead their life. Being the most neglected section of the society, Government and administration does not care to provide any kind of facilities including housing the lepers reside in an isolated state mostly bound to encroach public lands by making temporary huts and jhuggis which are commonly known as Kushtha Ashrams or Leper Colonies.


·       Guidelines and Commitments for Rehabilitation of lepers

These poorest lepers in the most of the states, for there being no welfare plans are bound to live in inhuman conditions without proper arrangements for living and without any assistance being given by the State whereas the Community Based Rehabilitation Guidelines (CBR)[i] framed by the National Leprosy Eradication Programme, Directorate General of Health Service (Ministry of Health & Family Welfare) admit:-

“Rehabilitation includes all measures aimed at reducing the impact of disability for an individual, enabling him or her to achieve independence, social integration, a better quality of life and self –actualization. Rehabilitation can no longer be seen as a product to be dispensed; rather rehabilitation should be offered as a process in which all participants are actively and closely involved”

These guidelines framed by the National Leprosy Eradication Programme  describe the rehabilitation of lepers as providing them a better quality of life and the same have not been followed by the State Governments.


·       Suggestions of Rehabilitation by NHRC

The National Human Rights Commission (NHRC) held a national conference on leprosy and in its background note[ii] it has given suggestions after a national seminar and has given various suggestions including:-

·            State Governments must take steps to improve living conditions in the colonies where people affected by leprosy reside.

·            Leprosy affected and cured persons and their families should live a dignified life. For this, they need to be empowered with basic human rights life right to education, right to work, right to health, right to food right to housing and other economic, social and cultural rights. They have access to all the rights without facing any kind of discrimination

·            There are no leprosy  specific schemes and these should be designed. There is no scheme for allotment of land to them.

·       Specialized bodies with responsibilities to Act.

It is a documented fact that there are several guidelines framed by the

National Leprosy Eradication Programme which is a centrally sponsored Health Scheme of the Ministry of Health and Family Welfare, Govt. of India. The National Leprosy Eradication Programme is headed by the Deputy Director of Health Services (Leprosy) under the administrative control of the Directorate General Health Services Govt. of India. While the NLEP strategies and plans are formulated centrally, the programme is designated to be implemented by the States/UTs. The Programme is also supported as Partners by the World Health Organization, The International Federation of Anti-leprosy Associations (ILEP) and few othe Non-Govt. Organizations. Schemes and guidelines framed by the Mission have to be followed by the states through their State Leprosy Officers, but the same are not being taken care of by most of the state Authorities.Often in mass level demolition drives slums of lepers are demolished   and as they are bound to encroach on public land but after demolition of the houses the lepers and their families are rendered homeless and are bound to suffer in the open-air in adverse weather putting their life at risk.


·          Recognition of Leper’s Legal Problems by Law Commission of India.

Law commission of India in its Report No. 256 of April 2015 titled as “Leprosy Affected Persons and the Laws applicable to them”[iii] at page 48 recommends:-

(iii) Provisions enabling the government to undertake affirmative action in the following areas be introduced:

·  Health

·  Ownership of property

·  Social Welfare

·  Education

·  Employment

·  Awareness and training

·  Participation of Persons affected by Leprosy in the formulation of policies

·  Setting-up of a Central and State Commission on Leprosy…,

The report of the Law Commission in its paragraph 7.10 states:-


7.10 The key aspects that require attention in the context of such a legislation include the following:


(i)          Measures against discrimination

(ii)        Land Rights

(iii)      Right to Employment

(iv)       Educational and training opportunities

(v)        Appropriate use of Language

(vi)      Right to Freedom of Movement

(vii)    Concessions during treatment

(viii)  Social Awareness

(ix)      Welfare Measures


The report recognizes a major problem of Lepers that due to their untouchability and seclusion and there being no rehabilitation scheme they are bound to encroach the lands and evicted and it’s a cyclic problem as Govt. has not taken care to rehabilitate these poor destitute Lepers.

The Report of Law Commission in its Page 41emphasised the problem as:-

(ii) Land Rights.


7.10.3 As has been noted previously, the long-standing practice of moving Persons affected by Leprosy and their family members from mainstream society into clusters near hospitals needs to be curbed. These clusters have come to be known as Leprosy colonies, and are usually established outside the city limits. This practice reinforces segregation and deprives the Persons affected by Leprosy and their family members from owning or possessing property. These colonies are either established on government land including forest and railway lands or private land given for the purpose of establishing such colonies by private individuals or institutions.


7.10.4 As noted previously, there are at present about 850 colonies in India. It has also been estimated that no new Leprosy colonies have come up in the last 14 years, although people diagnosed with the disease continue to migrate to existing colonies. Further, people who have been living in the colonies for years together wish to continue residing there with their families including children. However, in spite of their continued residence in these colonies, many Persons affected by Leprosy and their family members still do not have any land rights and live under the constant threat of eviction. The lack of ownership and title to land also discourages Persons affected by Leprosy and their family members from developing the colony.


All the lepers residing across the different states, wherever demolition and eviction drives are conducted to remove encroachment from public land are the worst sufferers as they have no means to rehabilitate themselves and state administration after demolishing their shelters never cares to rehabilitate them or to address any of their plights and sorrows.

·       Judicial acknowledgment of Right to Shelter


Supreme Court in Olga Telis & Ors. vs. Bombay Municipal Corporation & Others[iv] observed:

“32. As we have stated while summing up the petitioners’ case, the main plank of their argument is that the right to life which is guaranteed by Article 21 includes the right to livelihood and since, they will be deprived of their livelihood if they are evicted from their slum and pavement dwellings, their eviction is tantamount to deprivation of their life and is hence unconstitutional. For the purposes of argument, we will assume the factual correctness of the premise that if the petitioners are evicted from their dwellings, they will be deprived of their livelihood. Upon that assumption, the question which we have to consider is whether the right to life includes the right to livelihood. We see only one answer to that question, namely, that it does”.


In Shantistar Builders vs. N.K Totame[v] the Apex Court observed as:

“9. Basic needs of man have traditionally been accepted to be three-food, clothing and shelter. The right to life is guaranteed in any civilized society. That would take within its sweep the right to food, the right to clothing, the right to decent environment and a reasonable accommodation to live in. The difference between the need of an animal and a human being for shelter has to be kept in view. For the animal it is the bare protection of the body; for a human being it has to be a suitable accommodation which would allow him to grow in every aspect – physical, mental and intellectual”


In ,Chameli Singh vs. State of UP[vi], the Supreme Court has held.: –

“8. In any organised society, right to live as a human being is not ensured by meeting only the animal needs of man. It is secured only when he is assured of all facilities to develop himself and is freed from restrictions which inhibit his growth. All human rights are designed to achieve this object. Right to live guaranteed in any civilised society implies the right to food, water, decent environment, education, medical care and shelter. These are basic human rights known to any civilized society.”


Thereafter in plethora of judgments the Supreme Court kept on amplification of the Right to Shelter. In a summarized manner A reference can be made to:-


Ø U.P. Avas Evam Vikas Parishad v. Friends Coop. Housing Society Ltd. (1996):[vii] The Supreme Court affirmed that: “The right to shelter is a fundamental right, which springs from the right to residence under Article 19 (1) (e) and the right to life under Article 21.”


Ø People’s Union for Civil Liberties v. Union of India and Others:[viii] In this case, a series of orders were passed for ensuring food to the needy under various schemes. The case also included the issue of homelessness and resulted in several landmark orders regulating shelters for the homeless across India.



·      Right to Housing as a Human Right.

The above judicial dictums are in conformity with the right to housing which has been recognized as a human right under Article 25(1) of Universal Declaration of Human Rights[ix]  states:

“Article 25 (1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.”


·       Milestone  Judgement in Pankaj Sinha in 2018

Finally a landmark was erected when the Supreme Court of India on 14th September 2018 pronounced Judgment in Pankaj Sinha Vs. Union of India[x] The Supreme Court in this petition of a visually challenged Lawyer ordered that awareness be spread about the free treatment available for leprosy patients and directed the central and state governments to formulate rehabilitation schemes for those suffering from the disease. A bench of then Chief Justice Dipak Misra, Justice A.M. Khanwilkar and Justice D.Y. Chandrachud issued a slew of directions to the Centre and the states and asked them to ensure proper treatment of leprosy patients and end discrimination against them. It directed that a massive awareness campaign be carried out by the government on curability of leprosy, adding that patients should not be isolated by the family or community as the person can lead a normal life. The bench directed to “end stigma” against leprosy patients and to make sure they get adequate medical care and rehabilitation measures.



The most prescience lies inside direction (xiv) of this judgment which directs:-

“The Union and the State Governments must pro-actively plan and formulate a comprehensive community based rehabilitation scheme which shall cater to all basic facilities and needs of the leprosy affected persons and their families. The scheme shall be aimed at eliminating the stigma that is associated with persons afflicted with leprosy.”

This direction commands towards cater all basic facilities to the lepers which we all know essentially includes housing which is the prime trouble being faced by the lepers since ages and was never resolved despite several commitments by the statutory bodies.


·       Uttar Pradesh lead the way by  Leper Houses Move

The state of  Uttar Pradesh became pioneer in India by providing free houses to lepers under its Chief Minister Housing Scheme. Within a short duration of such announcement on 22nd December 2019 in keys of newly built houses were provided to 500 lepers in a function held at Lok Bhawan Lucknow. This is the first effective step towards housing of lepers, which any of the State Government has taken post directions in Pankaj Sinha Vs. Union of India[xi] for formulation of comprehensive community based rehabilitation scheme for leprosy affected persons.


·       Conclusion

Unfortunately unlike Uttar Pradesh other State Governments till date have not even initiated any scheme to provide adequate housing to the lepers.The brunt of inaction of State Governments in rehabilitation is being faced by lepers who are bound to reside in slums on encroached lands. The Hon’ble Surpeme Court has declared “Right to Shelter” as a fundamental right being part of Right to Life in Article 21 of the Constitution of India but in most of the states of India it is being violated by the Government in regard of these neglected classes of lepers. Government authorities have not understood till date that the Right to Life `is not a Right to mere animal existence.

The inaction on the part of the State Governments in not implementing the welfare schemes for the lepers including providing housing for them is a failure of the State Governments is putting the lepers and their families of in great hardships in their existing slums due to the extreme weather conditions making their survival difficult. The  lepers affected by demolition of their housing due to demolition drives, do not have electricity, water supply, medical facilities and the monsoon results in breeding of mosquitoes further endangering their lives. These destitute lepers are exposed to dengue, malaria, chikungunya and other mosquito borne diseases as they are exposed to other infections and diseases. On account of the lack of adequate housing, the Lepers are forced to live on the road, which adversely affects the safety and security of their women, increasing their vulnerability to violence and abuse. The elderly persons of their community face extremely vulnerable condition. To comply with the  fortitude which Supreme Court has shown in its dictum passed in Pankaj Sinha case[xii] it is high time that on war foot effective steps be taken to improve living of  lepers by providing them right of housing and shelter and rehabilitation which is most momentous pictogram of  dignified life which is a declared integral constituent of Right to Life .

(* Author is an Advocate from Uttarakhand, fighting the legal battle of the displaced leper families of  Haridwar, Uttarakhand)

[ii] background note and recommendations made by National Human Rights Commission on 17.04.2015
[iv] (1983) 5 SCC 545
[v] (1990) 1 SCC 520
[vi] (1996) 2 SCC 549
[vii] (1997) 11 SCC 121.
[viii] People’s Union for Civil Liberties v. Union of India, W.P. (C) No. 196 of 2001
[ix] › universal-declaration-human-rights
[x] 2018 0 AIR(SC) 4297
[xi] Ibid
[xii] Ibid

Unfortunate That Provisions For Probation Are Not Much Utilized By Courts: Allahabad HC

Allahabad HC : Grants Probation In 28 Years Old Case For Attempt To Homicide

In a latest, landmark and extremely laudable judgment titled Ramdas Harijan & Ors. Vs. State of UP in Criminal Appeal 2012 of 2003 reserved on December 11, 2019 and delivered on January 6, 2020, the Allahabad High Court has very rightly gone the extra mile and asked the courts to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. It very rightly lamented that provisions for probation are not much utilized by the Courts. All the Courts must be careful on this score always!

To start with, Justice Siddharth sets the ball rolling in para 1 of this noteworthy judgment by first and foremost observing that, “Heard Sri Santosh Kumar Singh, learned counsel for the appellants, Sri Gopal Ji Rai, learned counsel for the informant and Sri Gyan Narayan Kanojia, learned A.G.A. for the State and perused the record.”

To put things in perspective, it is then pointed out in para 2 that, “This criminal appeal has been preferred by Ramdas Harijan son of Jagnoo, Sonarase son of Jagnoo, Ramjanam son of Ramdas, Ram Jeet son of Sonarase, Ramesh son of Shyam Lal and Suryabhan son of Banarsi against the judgment and order dated 03.05.2003 passed by Additional Sessions Judge (Fast Track Court No. 3), Ghazipur in Sessions Trial No. 43 of 1994 (State vs. Ramdas Harijan and others) convicting and sentencing the appellants for offence under Section 323/149 IPC for a period of one year rigorous imprisonment, under Section 147 IPC for a period of one year rigorous imprisonment and under Sections 325/149 IPC for a period of five years rigorous imprisonment and a fine of Rs. 5,000/-, in default of payment of fine to undergo four months additional imprisonment and under Section 308/149 IPC for a period of five years rigorous imprisonment and a fine of Rs. 5,000/-, in default of payment of fine to undergo four months additional imprisonment. All the sentences have been directed to run concurrently.”

As it turned out, para 3 then brings out that, “During the pendency of this appeal appellant nos. 1 and 2, Ramdas Harijan and Sonarase both sons of Jagnoo, have died and the appeal has been dismissed as abated against them by the order dated 30.5.2019 passed by this court. Now the appeal survives only regarding appellant nos. 3, 4, 5 and 6.”

   Be it noted, para 4 then envisages that, “The prosecution case is that informant, Ram Adhar, son of Pardesi and the accuseds are the residents of village Kudila, Police Station – Bhudkuda, District – Ghazipur. On 26.09.1991 when the informant was making his hut on his abadi land the accuseds Ramdas, Sonarase, Shyam Lal, Ram Janam, Ramjeet and Ramesh, came armed with lathi-danda with common intention and stated that the abadi belongs to them. Suryabhan son of Banarasi came running on the spot and exhorted the accused to beat the informant. On this they started beating the informant with lathi. On his alarm members of his family, namely, Pardesi, Doma Ram, Km. Rita, Km. Sita, Smt. Geeta, Smt. Shyamdei, Smt. Kalawati, Smt. Vidya Devi, Km, Sumitra, daughter of Doma Ram, ran towards the informant and they were also caused injuries by the accuseds. On account of injuries inflicted by the accuseds, mother of informant, Vidya Devi and his grand-mother suffered fractures in hand. Both became unconscious and fell down. Bhuri Ram son of Chauthi, Kashi son of Ramnath, etc., and many persons of the village saw the incident. Informant took his mother in a cot along with other injured to police station. The accuseds set the hut of the informant on fire. The information of the incident was given at the police station Bhudkuda on 26.06.1991 and on its basis FIR was registered at 17:30 hours as Case Crime No. 150 of 1991, under Sections 147, 323, 325, 504, 308 IPC against the accuseds.”

What’s more, it is then stated in para 5 that, “The investigation was entrusted to the S.H.O., Sri J.P. Bharti. The injureds were examined by the doctor and number of injuries were found on the body of the injureds. The Investigating Officer submitted charge sheet against the accuseds. Before framing of charge accused, Shyam Lal, died and charges were framed against the remaining accuseds under Sections 147, 308/149, 325/149, 323/149 and 504 IPC. The accuseds denied the charges and sought trial.”

It would be pertinent to mention here that it is then observed in para 12 that, “After hearing the counsels for the parties this court finds that the offence under Sections 323 and 325 IPC can be compounded by the person to whom the hurt is caused. The offence under Section 308 IPC is not compoundable. In the present case only one of the injured, the informant, has filed his affidavit while the other injureds, namely, Smt. Vidya, Smt. Shyamdei, Smt. Geeta, Doma Ram, Km. Reeta, Km. Sumitra, Km. Sita, Smt. Kalawati and Pardesi, have not filed any affidavit praying that the offences caused against them by the appellants may be compounded. The affidavit of the informant shows that it has been filed only on his behalf and not on behalf of any of the injureds as their pairokar. In view of the above position of the record the compounding of the offences under which the appellants have been convicted cannot be allowed.”

On expected lines, what next follows more significantly is that it is then observed in para 13 that, “However keeping in view the fact that the incident took place about 28 years ago, the parties are neighbours residing in the same village, informant has filed affidavit before this court that their relations have become normal and they are residing peacefully in the village, he does not wants the enmity to be revived, this court feels that the appellants should be given benefit of Section 4 of the Probation of Offenders Act, 1958 in this appeal while upholding the judgment and order of the trial court.”

Most significantly, it is then observed about Section 4 of the Probation of Offenders Act which deals with power of court to release certain offenders on probation of good conduct as elaborated upon in para 14 and similarly about Section 360 of Code of Criminal Procedure which deals with order to release on probation of good conduct or after admonition as elaborated upon in para 15 in clear and convincing language  by stating unequivocally in para 16 that, “These statutory provisions very emphatically lay down the reformatory and correctional object of sentencing and obligates the trial court as well as appellate courts to give benefit of probation in fit cases as provided under law. Unfortunately, this branch of law has not been much utilized by the courts. It becomes more relevant and important in our system of administration of justice where trial is often concluded after a long time and by the time decision assumes finality, the very purpose of sentencing looses its efficacy as with the passage of time the penological and social priorities change and there remains no need to inflict punishment of imprisonment, particularly when the offence involved is not serious and there is no criminal antecedent of the accused persons. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed.”

To substantiate what has been stated in para 16, we then see that relevant case law are quoted as we see for ourselves in para 17 that, “In the case of Subhash Chand and others vs. State of U.P., 2015 Lawsuit (Alld) 1343, this court has emphatically laid down the need to apply the law of probation and give benefit of the beneficial legislation to accused persons in appropriate cases. This court issued following directions to all trial courts and appellate courts:

It appears that the aforesaid beneficial legislation has been lost sight of and even the Judges have practically forgotten this provision of law. Thus, before parting with the case, this Court feels that I will be failing in discharge of my duties, if a word of caution is not written for the trial courts and the appellate courts. The Registrar General of this Court is directed to circulate copy of this Judgment to all the District Judges of U.P., who shall in turn ensure circulation of the copy of this order amongst all the judicial officers working under him and shall ensure strict compliance of this Judgment. The District Judges in the State are also directed to call for reports every months from all the courts, i.e. trial courts and appellate courts dealing with such matters and to state as to in how many cases the benefit of the aforesaid provisions have been granted to the accused. The District Judges are also directed to monitor such cases personally in each monthly meeting. The District Judges concerned shall send monthly statement to the Registrar General as to in how many cases the trial court/appellate court has granted the benefit of the aforesaid beneficial legislation to the accused. A copy of this order be placed before the Registrar General for immediate compliance.””

Moving on, para 18 then states that, “In addition to the above judgment of this Court, this Court finds that the Hon’ble Apex Court in the case of State of Maharashtra Vs. Jagmohan Singh Kuldip Singh Anand & others (2004) 7 SCC 659, giving the benefit of Probation of Offenders Act, 1958 to the accuseds has observed as below:

“The learned counsel appearing for the accused submitted that the accident is of the year 1990. The parties are educated and neighbours. The learned counsel, therefore, prayed that benefit of the Probation of Offenders Act, 1958 may be granted to the accused. The prayer made on behalf of the accused seems to be reasonable. The accident is more than ten years old. The dispute was between the neighbors over a trivial issue of claiming of drainage. The accident took place in a fit of anger. All the parties educated and also distantly related. The accident is not such as to direct the accused to undergo sentence of imprisonment. In our opinion, it is a fit case in which the accused should be released on probation by directing them to execute a bond of one year for good behaviour.”

While continuing in the same vein, it is then further added in para 19 that, “Similarly, in Jagat Pal Singh & others Vs. State of Haryana, AIR 2000 SC 3622, the Hon’ble Apex Court has given the benefit of probation while upholding the conviction of accused persons under Sections 323, 452, 506 IPC and has released the accused persons on executing a bond before the Magistrate for maintaining good behaviour and peace for the period of six months.”

Now coming to the concluding paras, para 20 holds that, “In the light of above discussion, I find no illegality, irregularity or impropriety nor any jurisdictional error in the impugned judgment and order of the court below. The conviction recorded by the court below under Sections 147, 323/149, 325/149, 308/149 IPC is upheld and is not required to be disturbed.” It is then rightly held in para 21 that, “However, instead of sending the appellants to jail, they shall get the benefit of Section 4 of the Probation of Offenders Act. Consequently, the appellants shall file two sureties to the tune of Rs. 25,000/- coupled with personal bonds to the effect that they shall not commit any offence and shall observe good behaviour and shall maintain peace during the period of one year. If there is breach of any of the conditions, they will subject themselves to undergo sentence before the court below. The bonds and sureties aforesaid be filed by the accused persons within two months from the date of the judgment as per law and Rules.” Finally, it is held in para 22 that, “Accordingly, this appeal is partly allowed regarding sentences of the appellants.”

In conclusion, the Allahabad High Court has very rightly underscored that it is unfortunate that provisions for probation are not much utilized by the Courts. It very rightly grants probation in 28 year old case for attempt to homicide. All the courts must pay heed to what the Allahabad High Court has laid down in this latest and laudable judgment wherein it has itself cited many relevant case laws decided by the Allahabad High Court and Supreme Court also! No denying or disputing!

Sanjeev Sirohi